Indian criminal law is a colonial relic, with little sympathy for the citizen. We need our own version of Miranda rights
Bureaucracy is a giant mechanism operated by pygmies, as Honore de Balzac said, and therefore it is particularly vital that individual citizens of a free state be protected against the wiles of the system.
Indian criminal law, a colonial heirloom, is, not surprisingly, less sympathetic toward the citizen.
Though many colonial biases have been shed since Independence, the bureaucrats administering the law continue to have their own prejudices. Joseph K. in Kafka’s indelible portrait of the individual victimized by law rings true in Ferriera’s case.
In a country of India’s size, poverty and illiteracy, the most vulnerable groups tend to be singled out. But that does not mean the rest, like us, are safe. Sometimes, even scholars from Princeton are left scarred.
When Arun Ferreira was finally exonerated on January 29 of all charges foisted on him by the state for his Leftist leanings that were construed as Maoist sympathies, he had spent close to five years in Nagpur Central Jail.
In 1994, a story broke from Kerala that a spy ring in the Indian Space Research Organisation had been exposed. It eventually turned out to be a false alarm but it destroyed the career of a scientist who had joined the organisation under the tutelage of ISRO’s founder Vikram Sarabhai in 1966. The scientist, with a PhD from Princeton, had refused a job offer from NASA, choosing to head India’s liquid fuel rocket technology quest.
In 1998 the Supreme Court exonerated S Nambi Narayanan of all charges and directed that an enormous sum be paid to him in reparation for the miscarriage of justice.
Ironically, it was the CBI that exposed the conspiracy against the scientist involving the Congress-led Kerala government and the Intelligence Bureau to serve narrow interests that had little to do with space, science or national interest.
In 2001, a dramatic sting operation by a magazine exposed the way cash and sex could seal million-dollar defence deals for India and had television audiences dropping their jaws in shock. It cost the president of the opposition, the Bharatiya Janata Party, his job and landed him a jail term.
However, it devastated the life of the reporter who accomplished the audacious mission for his editors.
Mathew Samuel has been a haunted man since. His magazine withered away under governmental excesses and he was stuck in cases with the army, the CBI and the Central Vigilance Commission as a prime witness with no financial sustenance.
In an interview, Samuel said the CBI gave him ₹25 as lunch allowance on the days he was to depose before them as a primary witness, while parking charges for his car were ₹50 .
And he has found it nearly impossible to find a job.
On a blazing May afternoon in 2007, the police picked up Arun Ferreira from Nagpur railway station. Ferreira was an activist of the Naujawan Bharat Sabha, a Leftist organisation that worked among the poor and the destitute to create political awareness and mobilise them to demand their dues from the government.
A citizen of Mumbai, he had been close to the organisation that was part of Datta Samant’s textile strike in Mumbai of the eighties, and had moved to the hinterland after years of working with slum dwellers in the metropolis.
He was taken a week later to the central forensic laboratory in Kalina, Mumbai, and administered a narco analysis test. In September he was subjected to another test in a Bangalore civil hospital. Both were done without his consent, though the law now requires consent.
However, the tests hardly helped shore up the case against him. Ferreira was in jail on charges that included murder and attack on police stations, and was slapped with cases from various parts of Gadchiroli and Chandrapur, the Naxalite districts of Maharashtra where he worked with the rural poor.
The court acquitted him of all eight cases foisted on him and he was released in 2011, when the police re-arrested him and threw two more cases on him. He spent another three months in jail before being exonerated from one and bailed out of the other.
Ferreira was finally cleared of all charges, but what about compensation for the lost years?
These three cases illustrate how the State can destroy an individual’s life.
We must remember that each of them had a wife and children, and they as well as their extended families, were equally affected.
Though Indian law does not admit a confession as evidence in court, except under special laws, it relies heavily on the admissions of those charged with a crime.
After being hit, punched, abused and humiliated for a few hours, most human beings would sign whatever paper is presented to them. These papers constitute the majority of remand applications of law enforcers across the country.
Though an individual being arrested is required under law to be told of the charges brought up against him/her, there is no clear communication of rights or the risks of his/her actions under arrest, as spelt out by the Miranda rights in the US.
The Miranda rights came into being in the late sixties in the US when Ernesto Miranda’s conviction for kidnapping, rape and armed robbery was overturned by the US Supreme Court which ruled that criminal suspects must be informed of their right against self-incrimination and their right to consult with an attorney prior to questioning by police.
India’s vast and varyingly under-educated citizenry would benefit hugely if something equivalent to the Miranda rights were to be included in the police procedures. Our courts still depend largely on confessionary statements, especially in the early stages of cases that drag on for years, without ever examining the element of self-incrimination.
The little less than one-third of aspirational Indians whose brush with the law has not taken them into the dungeons of the Indian state would do well to read Kafka. Or they could imagine themselves in the shoes of Nambi Narayanan, Mathew Samuel or Arun Ferreira.
(The writer is author of ‘Defragmenting India – Riding a Bullet through the gathering storm’)
Read more here — http://www.thehindubusinessline.com/opinion/in-the-shadow-of-a-police-state/article5722858.ece