Miscarriage of Justice

Perils of Due Process
Sagar Dhara

Shame on the Union Government!" screamed the newspapers a day after a letter from the Tihar Jail Superintendent reached Afzal Guru's wife informing her that her husband was to be executed. She received the letter two days after the hanging. Guru's body was buried inside the jail premise. By not facilitating a meeting with his family before his final journey, and not returning his body to them, accepted practices of treating condemned men and their families with due respect were violated.

Worse still, due process, which are requirements the state must fulfil to uphold an individual's legal rights, were violated. The execution date was fixed within a week of the President of India rejecting Guru's mercy petition, denying him the opportunity of seeking a judicial review, something that Rajiv Gandhi's and Beant Singh's killers were able to do. In Kehar Singh v Union of India the Supreme Court (SC) held that "President's power under Article 72 (of the Indian Constitution to grant pardons) falls squarely within the judicial domain and can be examined by the court by way of judicial review."

Though opinions may differ about the strength of the evidence against Guru, a majority of those following his case believe that Guru was denied the services of a competent legal counsel, as ruled by the SC in Md Sukur Ali v State of Assam, "the Court should not decide a criminal case against the accused in the absence of his counsel."

Due process violations increase the probability of miscarriage of justice and wrongful convictions, which in some cases have led to the execution of innocent persons. Ferdinando Sacco, Bartolomeo Vanzetti, suspected anarchists, were convicted in the US for murder and executed in 1927. Overwhelming opinion that their conviction was due to their political beliefs made the then Massachusetts Governor, Michael Dukakis, issue a proclamation in 1977 that they had been unfairly tried and convicted. Based on flawed evidence, Rubin 'Hurricane' Carter, a black middleweight boxing champion, was wrongfully convicted for homicide in 1967 by an all-white jury, but was released 18 years later after his conviction was overturned.

A 2010 US best seller, Actual Innocence by Barry Scheck, by Peter Neufeld and Jim Dwyer, suggests that that the pre-trial error rate may be as high as 25% and that of wrongful conviction may be about 10%. Statistics from Project Innocence, a public policy organization dedicated to exonerating wrongfully convicted individuals, indicate that since 1977, 533 people were executed in the US while 80 death row inmates were released after they were found innocent, i.e., a 12% error rate. That error rate translates to 200,000 wrongfully convicted prisoners in the US today.

Based on such statistics, Roger Roots, a writer on this subject, concludes that "too many convictions are owed more to the zeal of the justice system than to appropriate evidence. Improperly obtained evidence, coerced or inaccurately taken confessions, and exaggerated testimony have been common elements in criminal courts."

Does the Indian criminal justice system fare any better? One will know that only when this subject is researched.

An expanded understanding of due process that includes all procedures, codified or otherwise, to protect life, liberty, free speech, clean environment, that protect an individual's rights, may be termed as due procedure. The Indian state has repeatedly violated due procedure. This has resulted in the needless loss of not just one life, as may be the case with Afzal Guru, but the loss of a large number of lives, or has put a very large number of people at grave health risk.

The Union Carbide plant that leaked highly toxic methyl isocynate (MIC) in the Bhopal gas tragedy was never sited for faulty design or safety violations by the Madhya Pradesh Factories Inspectorate. The vent gas scrubber that can neutralize fugitive MIC emissions was under-designed, and was de-coupled from the system before the accident. The pilot flame on the flare tower that could have burnt leaking MIC was put off to save on LPG gas. The refrigeration system that kept the MIC tanks at the required low temperature of 5°C was switched off because it was winter, causing the MIC to be at a more-reactive temperature averaging 17°C. Both these safety systems were turned off to save a mere Rs 1,000 a day. One of the two alarms in the plant was broken, and was never replaced. The cumulative death toll on date due to the accident, as per the Indian Government, is over 20,000.

In 1999, a super cyclone hit Ersama block on the Odisha coast. The Indian Space Research Organization's satellites tracked the cyclone all the way from Myanmar, across the Bay of Bengal, to the Odisha coast, and passed on the information on cyclone severity, time and landfall location to the Odisha Government. The government fiddled and did little else before Ersama was flattened by three giant tidal waves. Ninety per cent of the 50,000 persons who died in the cyclone would have lived if only they had been evacuated inland, beyond the reach of the 10-metre-high tidal waves that swept away everything in their path. And there was all the time in the world to evacuate-the satellites provided more than three days lead time.

Until a public interest litigation (PIL) petition was filed in the SC against illegal iron ore mining in Karnataka, rapacious mining had "significant adverse impact on the area's environment, ie, air and water quality; forests, wildlife and other flora and fauna; agriculture and horticulture; human health, etc" (per the SC-appointed committee to study the impact of iron ore mining in Karnataka). A study commissioned by the petitioner concluded that in Sandur Taluka of Bellary District, air pollution from the mines had affected crop and milk yields significantly. Maize yields dropped by two-thirds, milk by 75% and mango crop by 95%, causing a loss of Rs 200 crore per annum to local farmers, i.e., Rs 50,000 per family annually. With every fourth patient visiting a doctor being asthmatic, the prevalence of this debilitating health effect was significantly higher than in a control population. Carcinogenic heavy metals in iron ore also caused a significant cancer risk. Regulating agencies-state and central-had failed completely in their mandated duty to protect the people and environment of Sandur.

Of the 24 coal-based greenfield power plants with a combined generating capacity of 28,000 MW proposed to be located at Krishnapatnam port in south Andhra Pradesh, eight plants with a combined capacity of 14,000 MW have been granted environmental clearances. A study done to assess the combined impact of the plants with environmental clearances indicated that when all eight plants go on stream, air quality in thirteen villages and towns around these plants will not meet ambient air quality standards, causing an estimated 500 air pollution-related excess deaths per annum. Air pollution will also significantly impact salt pans and aquaculture in a 25 km radius around Krishnapatnam, agricultural yields and monuments in a 100 km radius, and forests in a 500 km radius, including the Western Ghats. Each of the eight plants were independently cleared by the Andhra Pradesh (AP) Pollution Control Board and the Ministry of Environment and Forests, without considering the combined impact of other proposed plants. The regulating agencies abdicated their duty to protect human health and the environment around Krishnapatnam.

There are numerous other instances of government's subversion of due procedure in many diverse fields. In the long run, it will help to keep Indian society flawed in so many ways. First, it will encourage corruption. If due procedure can be side-stepped with a bribe, that will be preferred by many, particularly if the alternative, i.e., following due procedure is time and effort-intensive, and the outcome is a little uncertain even after the bribe.

Second, democratic institutions will be subverted, and this will inch India towards some form of dictatorial rule. A dictator and his henchmen follow few rules of governance, except the ones they make, as they are not accountable to anyone, least of all to people. "Rule of law being equally applicable to all" will be replaced by "whims of the ruling few." The degree to which due procedure is discarded determines how authoritarian the regime is. An absolute dictatorship discards all due procedures.

Third, it will keep India a low-value-of-life country, where adequate state investment is not made to protect and nurture human life against all manner of risks-health, hunger, manmade and natural hazards, miscarriage of justice, etc. A low value of life society is more prone to violence perpetuated both by its state and its polity against vulnerable people-minorities, socio-economic and politically weaker sections. As the feeling of exclusion deepens, fault lines in Indian society will widen, leading to more conflict and strife.

A remedy for due procedure violations is to make concerned government ministries, departments and their heads legally liable for failure to discharge their mandated responsibilities with adequate safeguards against malicious complaints. While such action is happening in some high profile corruption cases, it is yet to begin in other spheres, eg, for failing to protect the people and the environment of Sandur and Krishnapatnam, no action has been initiated against the AP and Karnataka pollution control boards and the Ministry of Environment and Forests.

Frontier
Vol. 45, No. 49, June 16 -22, 2013

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