by Ayani Srivastava
The recently released movie Policegiri depicts a ‘supercop’ who has no respect for established rules, is corrupt and he is a system unto himself. There have been several movies previously, which have had similar themes and have been box office successes. These movies portray the police as doing anything to nab a criminal, even if that means carrying out an encounter or arresting someone on trumped up charges. Such movies have gained popularity due to a perception that criminals are let off easily due to loopholes in procedural law. Hence, these films try to cash in on the public’s mood by showing larger than life cops who punish criminals in any way possible.
In real life, Policegiri in India is manifested in the form of an absolute disregard for the laws of evidence and the entire existing legal framework. When a crime has been committed, the police, to atone for its inefficiency in not being able to prevent it, has to find someone guilty. Rapid arrests are made. People are charged. This is especially so when the police is directly under the spotlight generously showered on it by the media, as has been illustrated by the Aarushi Talwar murder trial, the Afzal Guru case and most recently IPL drama that has unfolded over the past few months, wherein cricketers and bookies initially arrested for spot-fixing (an admixture of cheating and gambling) were later charged under the Maharashtra Control of Organised Crime Act, 1999.
India follows the ‘Due Process’ model of criminal justice. However, acts like the MCOCA, AFSPA, Jammu & Kashmir Disturbed Areas Act and the now repealed POTA and TADA are legislative ammunition handed down to the law and order forces to bypass our criminal jurisprudence by condoning substandard investigation and subverting the due process of law.
The MCOCA by laying down the procedure for authorising interception of wire, electronic or oral commutation skirts ordinary criminal law, which limits such interception from being produced as primary evidence against the accused. Further, one of the cornerstones of the law of evidence, as is customarily applicable, is that confessions to the police are not admissible as evidence, because they may easily be extracted by mental or physical torture. MCOCA, however has provisions that allow certain confessions made to a police officer as admissible evidence. Further, the Special Court (constituted as under S 5 of the Act) has the authority to construe confession of a co-accused testifying to the guilt of the accused as ground for ‘presumption of guilt’. Section 18 of MCOCA disregards the Indian Penal Code as well as the Indian Evidence Act and instead lays down that “confessions made to a police officer, not below the rank of the Superintendent of Police, shall be admissible in the trial of such a person, a co-accused, abettor or conspirator, provided that the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.”
On account of these provisions, a fair trial to an accused charged under the MCOCA is a virtual impossibility. In fact, these provisions contribute to a high conviction rate under MCOCA (76% as compared to 25-26% in ordinary criminal cases). Security agencies cite these statistics in favour of retention of MCOCA. However, the provisions of the Act that make it so ‘effective,’ are the ones that make it draconian and contradictory to the principles of natural justice. A person tried under MCOCA is almost presumed guilty and has to prove his innocence thereon, whereas under ordinary criminal jurisprudence, the onus of proof is on the prosecution. This ‘presumption of guilt’ goes against the basic tenets of criminal jurisprudence in India.
It could be argued that as the MCOCA was enacted to deal with prevention and control of organised crime, the severity of its provisions is justified by the magnitude of offences it seeks to curb. However the argument is not well founded as the draconian provisions of the MCOCA (such as Section 21 which lays down that any person accused of an offence under the Act may not be granted bail) are, applicable as soon a person is suspected of the a crime within the ambit of MCOCA. It is as if the Act does not recognise and positions itself above the elementary principle of giving the benefit of doubt to the accused. While the conviction rate under the MCOCA is unarguably high, it is not 100%, which implies that innocent citizens are subjected to these unreasonably harsh provisions, starkly contradicting the criminal justice model followed in India.
Further, the MCOCA grants the law and order forces with overriding immunity clauses, thereby assisting them in eschewing accountability and judicial review. Instead of reforming the collapsing criminal justice system, legislations such as the MCOCA continue to encourage relaxation of stringent rules that otherwise govern prosecution. This in turn implies that, in order to gain a high conviction rate, the poor investigation skills displayed by prosecution agencies (traditionally the cause of low conviction rates) ought to be covered up by relaxing the procedures adopted for collection of evidence and producing admissible evidence in a criminal trial.. The MCOCA, therefore, attempts to remap the system of criminal jurisprudence by labelling the existing legal framework, i.e., the “penal and procedural laws and the adjudicatory system” as “inadequate” (as mentioned in the Statement of Objects and Reasons of the MCOCA) and provides an unacceptable alternative to the existing criminal justice model.
It could be said that the powers granted to the law enforcement agencies are not absolute and the courts act as safeguards of exercise of that power [State Of Maharashtra & Ors vs Lalit Somdatta Nagpal 2007 (4) SCC 171]. The Sessions Court, in the IPL case where cricketers arrested for spot fixing were charged under the MCOCA for organised crime, has stated in its order that “[t]he court cannot sit as a mute spectator and accept the story of prosecution as a ‘gospel truth’ .” While this gives some hope of reining in the prosecuting agencies, it surely is not enough. When a law is as draconian as the MCOCA, there should be a provision of judicial accountability too. The need for this check becomes all the more pronounced when cases like the Mecca Masjid Blast case remain fresh in popular imagination. In that case, nine Muslim youths charge sheeted by the CBI as terrorists were detained in prison for seven years before confessions of certain Hindu fundamentalists, arrested by another agency NIA, accepting responsibility for the crime came to fore.
In conclusion, instead of providing the law and order forces with overriding immunity clauses and lowering the thresholds of evidentiary requirements for conviction, attempts should be made to improve the quality of investigation carried out by the forces under the ordinary criminal trial and attempt to bring crimes like Organised Crime and the like within the scope of ordinary criminal jurisprudence. For special circumstances, when stricter laws are considered absolutely necessary, they must indeed be employed, but with built-in safeguards for human dignity and life, as well as some sort of accountability from both the law and order forces and the judiciary, when such safeguards are breached.
(Ayani Srivastava is an Associate Articles Editor with the Journal of Indian Law and Society)