The South Asia Channel

In India, Prison for the Poor, Bollywood Justice for the Elite

The subcontinent's commitment to rule of law is stuck in a bygone era.

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MUMBAI, INDIA - MARCH 13: Bollywood actor Salman Khan after the hearing of his 2002 hit-and-run case at the Mumbai Sessions court on March 13, 2015 in Mumbai, India. The sessions court here said it proposes to record the statement of the accused, Bollywood actor Salman Khan, from March 23 to enable him present his defence on the evidence put up by the prosecution. (Photo by Arijit Sen/Hindustan Times via Getty Images)

Damini, a Bollywood blockbuster from the 1990s, is famous in India for a courtroom scene in which a lawyer bemoans the ease with which justice is subverted by gaming the legal process. The scene remains relevant today, particularly in Bollywood itself: The legal system seems to afford celebrities and other elites some degree of impunity.

In March of 2015, a trial court sentenced Bollywood superstar Salman Khan to five years of hard labor after finding him guilty of a hit-and-run that resulted in a death and four injuries in 2002. Within a year, the Bombay High Court had acquitted him, ruling that the evidence did not merit a conviction, despite any perception of guilt that might linger “in the mind of the common man.” The judgment pointed out that the Mumbai police hadn’t followed protocol in conducing their investigation or collecting evidence. The case has come to serve as an example of “VIP justice” — the notion that the rich and powerful in India get away with violating the law, while ordinary people face the full, stifling power of the legal process.

Acquittal aside, the six-month timeline for Khan’s appeal was itself surprising. In March of 2015, the Bombay High Court had a backlog of 12,911 criminal appeals, nearly half of which had been pending for over 10 years. Even as India seems poised to become the world’s fastest growing major economy, Khan’s case serves as a sobering reminder that, all too frequently, the country’s commitment to rule of law is little more than an empty formality.

In his ruling on the Khan case, Justice A.R. Joshi of the Bombay High cited shockingly poor evidence collection by the Mumbai Police. Vials of Khan’s urine samples went missing, his alcohol test wasn’t handled property, his blood sample had somehow shrunk by two milliliters by the time it reached the lab, witnesses contradicted each other, and others failed to honor court summons.

Perhaps nothing sums up the Khan trial better than the plight of Constable Ravindra Patil, who had been assigned by the Mumbai Police to protect Khan at the time of the accident. He was the only witness who stuck by his statement, for which he allegedly faced immense personal and professional pressure. He was professionally discredited and died a lonely death ten years ago, denied medical assistance by both the movie star he had undertaken to protect, and by the Mumbai Police, who had ordered him to accompany Khan on that fateful night. Justice Joshi deemed him “not wholly reliable” as a witness because so much else in the trial contradicted his testimony. In view of how much went wrong with Khan’s case, Constable Patil’s fate forces us to reexamine whether his faith in the legal system was borne of bravery or of sheer naivety.

Among celebrity trials, Salman Khan’s case is not a solitary instance of poor prosecution and sloppy investigation. The trial of Jessica Lal saw a similar subversion of justice. Lala was a bartender. She was shot dead by Manu Sharma (who is a powerful political scion) because she denied him a drink after the bar had closed at a party. It took a concerted media campaign highlighting the many lapses in prosecution and investigation for the Delhi High Court and the Supreme Court to convict Sharma.

In another instance, Bollywood star Sanjay Dutt got off easy on weapons charges. A court convicted him for storing deadly weapons during the height of the Bombay riots in 1993. The Mumbai mafia had supplied the weapons and Dutt effectively provided a safe haven for the cache. He was charged originally under the stringent Terrorist Anti Disruption Act, but convicted and sentenced to three years of hard labor under the more lenient Arms Act. And despite his conviction and the gravity of his offence, he has enjoyed a privileged stay in Pune’s Yerwada Jail. He was granted furlough or parole on four occasions, amounting to a total of 132 days, for reasons such as his wife’s health, good behavior, and even his daughter’s nose surgery. He was released in February for good behavior, three and a half months before his sentence was set to end. For a country where 68 percent of all inmates have not been tried, 40 percent of whom remain imprisoned without trial for at least six months because of their inability to secure bail, Dutt’s case underscores just how lopsided the justice system is.

Some celebrity cases have been mishandled, but they pale in comparison to the sloppy prosecution that has characterized India’s high profile rioting trials. In 1984, Jagdish Tytler, a Congress party worker, stood accused of leading mobs to kill Sikhs after two of Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her. Since then, Tytler has repeatedly avoided any major punishment. and the Central Bureau of Investigation cleared him of any wrongdoing. Recently, however, the Delhi High Court ordered a new investigation, and the case remains open. For a crime allegedly involving mass murder committed as far back as 1984, Tytler’s continued trial with no end in sight highlights the callousness with which the police and the justice system treat even heinous crimes that would shock most people into urgent action.

Similarly, the riots of 2002 — which culminated in the death of thousands of Muslims in the state of Gujarat, under then-Chief Minister Narendra Modi — continue to draw accusations of government-driven subversion and witch-hunting. Demands that Modi face prosecution persist, while others whom courts have found guilty of inciting violence (including a Gujarat state cabinet colleague) have been granted bail pending challenges to their convictions. Shockingly, the Gujarat government failed to challenge these bail decisions.

A number of factors are responsible for India’s abysmal rule of law record: a co-opted, non-independent constabulary, controlled tightly by the political class; an overworked judicial system incapable of handling the massive influx of cases in a timely way; poor infrastructure; and the use of outdated forensic techniques. Yet at the root of each of these issues lies an absence of political will and an absence of any real electoral repercussions.

Sanjay Dutt’s preferential treatment simply hasn’t rankled voters enough to prompt change. Salman Khan’s legions of fans remain unfazed by allegations that he may have escaped punishment on the basis of technicalities. And gruesome rioting crimes somehow fail to generate the sort of backlash that would make them costly for politicians — or would at least galvanize the public enough to ensure quick and fair trials. India’s political elite lack any electoral incentive to systemically reform the country’s justice system. In fact, the converse may be true: Given how crime-ridden India’s political landscape remains, reforming the justice system might prove electorally unrewarding for many in the political class. It will therefore take an act of political statesmanship to usher in any lasting change.

To the Western world, India appears to be a rare oasis in a desert of tin-pot dictatorships and pseudo-democracies. The subcontinent frequently earns recognition on the world stage for its stated commitment to the rule of law and its record for peaceful transfers of power. Yet these narratives, based on a formal understanding of India’s legal and political systems, fail to recognize that India’s political and legal elite pay lip service to the rule of law while allowing its consistent and unscrupulous subversion.

Indian movie stars often detest the word “Bollywood,” which they consider unbefitting and belittling of a legitimate movie industry that actually rivals Hollywood. Ironically, the trial of Bollywood’s reigning superstar serves as an indicator that the country’s commitment to due process is a shallow, caricaturish approximation of the real deal. For a country that aspires to become a global power, India’s shockingly poor rule of law record reflects a bygone era.

Photo credit: ARIJIT SEN/Hindustan Times via Getty Images

Jeet H. Shroff is a Mumbai-based lawyer and a Non-resident Expert with the Vidhi Center for Legal Policy in New Delhi. He tweets @jeet_shroff. Twitter: @jeet_shroff

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