India Intelligence Report



 Justice Vs Judiciary Vs Legislation

  Conviction of rapists, murderers, and terrorists 10 years late and politically-motivated illegal cover-up commission, quota plans, and clemency for some facing death row raise numerous questions and concerns on the Indian democracy.


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Conviction of rapists, murderers, and terrorists 10 years late and politically-motivated illegal cover-up commission, quota plans, and clemency for some facing death row raise numerous questions and concerns on the Indian democracy. Six different cases occurring at different points in time communicate a commentary on the scope of justice, role of judiciary, and effectiveness of the Legislature:

  1. 1. Since the 1993 Mumbai bombings master-minded by Tiger Memon and gang have been chased down, captured, tried, and finally convicted for conspiracy against the state, illegal possession of weaponry, and desire to commit mass murder. The delay of the investigation has been complicated and timeline extended because many of the suspects, including primer accused, were in Pakistan or Dubai and cannot be extradited. Moreover, since this was the first major case of terrorism in India , there was a steep learning curve.

2. In another case, the son of a senior police office rapes and murders a law student at her home and circumstantial evidence clearly points to his culpability. However, a lower trial court acquitted him in 1999 even though the judge pointedly said that he believed the culprit to be guilty but had to let him go because of alleged evidence tampering and also because the judge threw out crucial DNA evidence. The High Court did not have any of the qualms that the lower court had and found him guilty remarking that “justice was delayed, but not denied.” In another similar case a politically connected person shot his former girlfriend in a public place and rode away in a Government car. Such behaviour had outraged the Indian middle class who responded to sensational television media activism that resulted in a retrial.

3. The Gujarat High Court (GHC) rendered a slap across the face of the Railways Minister who appointed a constitutionally invalid Commission to cover-up the incident at Godhra in 2002 while another was already appointed to investigate it. This incident and the ensuing riots is investigated by the Nanavati Commission and has its own share of controversies including the possible breach of privilege by former President K.R. Narayanan who ousted several letters he and the then Prime Minister Atal Bihari Vajpayee wrote each other.

4. The Supreme Court (SC) hearing the constitutional validity of exaggerated caste-based reservations has questioned the Federal Government on the propriety of newer caste-based reservations for the so-called Other Backward Classes (OBC). Political parties have cried foul arguing that the SC has no locus standi on a “non-tabled” legislation and may only question legislation passed by the Parliament. Unanimous in opposing the SC’s “interference,” political parties are and say that the Parliament is supreme and has more authority than the SC.

5. The Andhra Pradesh (AP) Government had recommended the clemency of loyal Congress man from capital punishment by a former Governor (who is now a serving Minister in the Federal Cabinet) on frivolous grounds. Overturning the pardon, the SC castigated the former Governor for not performing an independent investigation and the State Government for nepotism. The SC said that “political loyalty, religion, or caste” cannot be the basis for clemency and said it will intervene if it feels that political expediency impinges on the Constitution.

6. The 5th case comes at a very opportune time when several “leaders” are calling for clemency for a Kashmir terrorist convicted for his role in the attack of the Indian Parliament on December 17, 2001 . They cite religion and theories that it would spur more into terrorist arms in Kashmir .

These cases all point to the malaise of lack of political accountability that has begun to afflict the Indian democracy. While the disease had been eating away at fringe organs of the state, it has now started to target vital organs. When India prides itself as a billion people nation ruled by a democratically elected government respecting the rule of law, political conspirators are actively ensuring that this image is eroded from within. While India prides itself of local governance, the recent sham civic body elections of Tamil Nadu (TN), which is one of the economically and socially elected states within the Indian union, points to the abject corruption of the system.

It stems from the Indian Constitution which, like all Constitutions, makes several unreal and incorrect assumptions. First, it assumes that there is a prevalent “first among equals” sentiment that the best candidate is elected to power. Second, it assumes that the elected member knows the requirements of the people. Thirdly, it assumes that the elected representative is then capable of translating these requirements into law. Fourthly, it assumes that these elected individuals are capable of administering the law that they create.

The corruption of politics and the criminalization of democracy only highlight the gaping holes in our system of governance.