Witness management or outcome manipulation!

Crises of democratic estates Madabhushi Sridhar on the sagging image of the judiciary and the increasingly proactive role of the media feedback@dailypioneer.com Friday, June 23, 2006

With executive and legislature throwing all inconvenient social questions to the judiciary and almost every Government decision being challenged in courts of law, the media is placing one of its battalions within the corridors. It must have been noticed by now that virtually every court verdict is being reported. While Government uses legislative Bills and enactment as publicity documents, the Opposition rushes to the courts to oppose them. The public interest litigation, which is often criticised as the publicity interested or politically interested litigation, too, shows the profession in poor light.

People read through the arguments of famous lawyers defending celebrities in the courts, which earlier was not so profusely known to the people in general, except those who had first hand information about it in the courtrooms. The readers can understand which prosecutor argued in what manner. The success of Kanchi Shankaracharya in securing the bail in criminal cases framed by Tamil Nadu Police with convincing argument of senior advocate Fali S Nariman is readily reported by the Press, which created a favourable atmosphere for the accused.

Ranging from basic ignorance of contemporary developments in their own field, lack of adequate training or reorientation programmes updating the resources and absence of commitment for justice are some of the fundamental causes of present sagging image of the judiciary. With criminalisation of politics and electoral offices, Government does not behave differently. The prosecutors appointed by such Government based on political, caste and cost considerations on one hand, and investigative agencies, which are undoubtedly not independent on the other, have serious reflections on the outcome.

Sometimes the judgements acquitting the criminals surprise the people. But, there is no point in raising the accusing finger against the judgements alone, which are culminating features of all these obnoxious characteristics. The courts have become laboratories, turning out the reports based on the chemistry of evidence describing or even destroying facts. Of course, the dishonesty levels with incompetence and influence of inducements too play a proportionate role in shaping this image.

The people say that the legal profession today is more an arrangement than argument and the prosecution is more about witness management or outcome manipulation. We have experts in the profession with their rich experience. But all that goes to help the accused to escape as they advise how material could be misapplied, events could be misrepresented and facts distorted. It is common counsel from legal brains to the client, "Wait, I will get the case against you dismissed when it reaches so and so bench."

Then, what kind of a right does the media have to try a case in parallel to prosecution? Constitutional rights like freedom of expression and provisions of criminal procedure code recognise and encourage a role for a private citizen in helping the investigation and prosecution and the court in eliciting truth, revealing evidence available with them. Trial by media is not illegal. Investigative reporting is well within their ambit of freedom. At the most there can be a complaint against media about sensationalisation, or perhaps for acting under pressure of their business interests or they may be sued for defamation, etc. If a fact is unearthed, it cannot be discounted merely because it was done with an interest or to serve some sections.

What happens ultimately? Emerging trend is baffling. All key players are now concerned with perjury and vehemently plead for prosecution of witnesses, forgetting that they are basically victims and vulnerable to pressures and threats to their lives. Look at the way our system is prosecuting Zaheera Sheikh, victim of Gujarat riots who is alleged to have changed her version of communal riots three times and accused by Tehelka of accepting bribes. Is she a victim or an accused?

The people other than the clients are watching the lawyers and courts. They have to be conscious that not just pens but cameras are around them and they must be cautious about integrity, professional activity and social responsibility. Before society turns to streets for purchasing justice, the profession has to wake up. (The writer is Professor of Law, National Academy of Legal Studies and Research, University of Law, Hyderabad)