THE TALWARS ARE INNOCENT, BUT ARE WE ?

         

We may attribute the grotesque miscarriage of justice implicit in the conviction ( now set aside) of the Rajesh and Nupur Talwar to one judge and one investigating officer, but we would be deluding ourselves. This case represents a colossal failure of our entire system where every institution intended to safeguard a citizen’s rights- the executive, judiciary, Parliament and the media- has turned rogue like an auto-immune disease and turned upon itself. The checks and balances have not worked and the lives of two respectable members of society have been destroyed while their murdered daughter is just another statistic in our cavernous hall of shame.

The UP police and the CBI should of course hang their heads in shame. The former destroyed most of the evidence and could not proceed beyond besmirching the character of a dead girl. The CBI had no real evidence against the Talwars: the Allahabad High Court has painstakingly demolished their fabricated house of cards, Joker by Joker. The most important elements in proving guilt in a murder case are motive, murder weapon, and the chain of circumstances: the High Court could find none of them. Neither the SP Mr. Kaul nor the then Director of CBI Mr. Ashwani Kumar could be bothered with this nicety, however: they went ahead and prosecuted the Talwars without any evidence against them, or evidence that was concocted by pressurising a maid and intimidating forensic experts. They let suspicion and personal bias take the place of scientific evidence: this was the first failure. The second was the failure of the CBI’s legal wing/ Prosecution branch to point this out while vetting the case. Or did they do so and were overruled by the gentleman who went on to the luxury of a Raj Bhavan while his victims were rotting in Dasna jail?

The CBI trial judge who convicted the Talwars is the third failure. It frightens me to think that there are, in all probability, many more such judges in our judicial system who hold the lives and freedom of millions of citizens in their hands. I have rarely read a worse judgement in my life, even if we discount reports at that time that the first part of the order was written by his son and that the worthy judge had started writing the judgement even before final arguments were made in the case! Equally, I have rarely come across such scathing remarks by a High Court against a judge, describing him as a “film director” who was “prejudiced” and whose reasoning was “vitriolic”. It says that Mr. Shyam Lal’s approach was “ parochial and partial”, he tried to “give shape to his own imagination stripped of a just evaluation of the evidence and facts of this case,” and that he was “unmindful of the basic tenets of the law.” The fourth systemic failure ,therefore, is simply this: how could such a judge ever come to occupy a position where he could, literally, send a man to his death?

The Allahabad High Court has rectified somewhat what the CBI and Mr. Shyam Lal had perpetrated on the Talwars, but it took them four years to do so, and this too has to be a failure of the system. Why could they not have been released on bail pending their appeal? After all, sometime back the Patna High Court had granted bail to the notorious Mohammad Shahbuddin who has three life convictions and two dozen other criminal cases pending against him. Did the two dentists pose a greater threat to society, with their scalpels and drills, than the don with his assault rifles and guns and goons? The double standards of our courts is part of the reason our system is breaking down.

The media- particularly the electronic media- provides the next malfunction of the system. A TV studio these days is the Colosseum of Roman times where panellists, led by rabid anchors, bay for blood- it does not matter whose, just so long as it keeps flowing on prime time. Without any investigation or facts they brand people guilty, hound the police till they do likewise and create a malevolent public pressure which the Kauls and Shyam Lals of the world are only too happy to appease. These anchors have played no small role in railroading the Talwars.

Parliament too has failed us, and the Talwars. It has done nothing to legislate some of the corrections into the system: creation of separate Directorates of Prosecution to stop the predatory tactics of the police, introducing an All_india Judicial Service to improve the quality of our trial judges, allow more liberal bail laws considering that of every one hundred persons arrested, fifty-five will be ultimately declared innocent in our country, mandate fast tracking of appeals where the accused are already behind bars, bring in stricter gag laws for the media to prevent them influencing investigations and trials.

Most important of all, given the rapacious aptitude of our police, the whimsical nature of court judgements and the sheer enormity of miscarriage of justice in our country, it is high time Parliament and the Supreme Court considered introducing a system for compensating citizens wrongly imprisoned by the govt. Most progressive and rule based countries have them : 29 states in the USA have Wrongful Conviction statutes under which unfortunate detainees are given compensation ranging from US$ 50000 to 100,000 per year of wrongful detention. The UK too has the Criminal Justice Act. The logic for this is clear: the citizen has voluntarily given the state enormous powers over his life and liberty in the interest of a cohesive social order; when the state betrays this trust it must offer reparations to the people it has wronged. This trust is the bedrock of a democratic order.

We betrayed this trust and covenant with the Talwars. Do we have it in us to rectify these shortcomings before the canker pervades all ?