In November 2013, a Special CBI Court in Ghaziabad, headed by a Judge, who was to retire that month, left with a judgement that has come back to embarrass him. Judge Shyam Lal had declared that Dr. Nupur and Dr. Rajesh Talwar, parents of Aarushi, were guilty of murdering their daughter and their house help Hemraj. The Judge had sentenced them to life. Then the Talwars went in appeal and two days ago, nearly four years after being in jail, the Allahabad High Court acquitted the dentist couple.
Now, it’s worrying that a citizen can be declared a ‘murderer’ and then be declared innocent! Two drastically different judgements based on the same set of facts presented in both the Courts! But what is even more disturbing is the scathing judgement of the Judge who convicted Talwars in the first place.
Though the Allahabad Court ends its order by saying, “The appellants are acquitted of all charges framed against them,” it does not end there. Judge Arvind Kumar Mishra adds 5 pages of observations about the previous judgement and the Judge. For an ordinary citizen it should give chills reading it because… What if you end up getting a Judge like Shyam Lal?
Judge Mishra says this about former Judge Shyam Lal’s judgement in the Aarushi murder case… “The whole genesis of the offence was grounded on the fact that both the deceased Hemraj and Aarushi were seen by Dr. Rajesh Talwar in-flagrante and thereafter like a Film Director, the trial Judge has tried to thrust coherence amongst facts inalienably scattered here and there but not giving any coherence to the idea as to what in fact happened.”
A Judge is being compared to a Film Director! And the type of Film Director who can take an imaginary sex act and spin a story around it and hopes to deliver “justice”! In short, the previous judgement might as well have come with a disclaimer like in movies.
He further observes, “Perhaps out of extra zeal and enthusiasm and on the basis of self-perception, adopted partial and parochial approach in giving vent to his own emotional belief and conviction… stripped of just evaluation of evidence and facts of this case.” Here Justice Mishra is saying former Judge Shyam Lal was blinded by his innate qualities such as “parochialism” which hindered his ability to deliver justice.
The Honourable Judge further adds, “The entire judgement is on the whole a creation of fanciful reasoning … basing conclusion on unfounded evidence. The trial Judge is supposed to be fair and transparent and should act as a man of ordinary prudence and he should not stretch his imagination to infinity — rendering the whole exercise mockery of law.” In fact, Avirook Sen, in his book ‘Aarushi’ says Judge Shyam Lal had started writing his judgement even before Aarushi murder trial was over!
So the final judgement on Judge Shyam Lal by Justice Mishra is that he made a mockery of the law which he was duty-bound to uphold. God only knows how many Talwars are rotting in prison because of such laxity of a Judge.
Now, who will judge the Judges? Also the Court has said that CBI Officers had diluted evidence and has even named the lead CBI Investigator as the man who did it. It even states that CBI planted witnesses to clinch the case.
Many may not know but using outside, paid witnesses is a common practice. Some may remember that in Mysuru two years ago a Judge in City Court noticed that the same witness appeared in three different cases for the Government Prosecutor in one day! Finally, the Judge noticed and took the Police to task.
Now, will Talwars, who have lost their practice, their face in society and suffered mental trauma get some compensation from CBI that “fixed” them? Also, is not falsely deposing before a Court under oath a crime? So, will any action be taken against CBI Officers who manipulated evidence?
Today, the lack of Court time, corruption in the law delivery system and the tampering of evidence that delay judgements has turned the justice delivery mechanism into an “injustice delivery mechanism.” That is why our Finance Minister Arun Jaitley in 2002 observed, “You commit a crime there is 93.5 percent chance — if it is heinous — that you will get away with it.” And he said this when he was the Law Minister of the country!
The other issue is accountability. While the Lower Court Judges can be punished, the Judges of Superior Courts can only be removed if two thirds of the MPs want to impeach a particular Judge. This is the same number needed to amend the Constitution! So these Superior Court Judges have been attested almost the same importance as our Constitution! May be, it is time to move the Judicial Standards and Accountability Bill which is being worked on since 2010.
In our country personnel who deal with law and order have been given too much power with absolutely no accountability. It was the former Chief Justice of India (CJI) T.S. Thakur, who said “as long as judiciary exists, people have nothing to fear.” But then, as long as we have Judges who don’t stick only to facts, as long as we have investigating agencies which only care about conviction instead of truth, as long as we have Police who don’t know how to secure evidence, as long as we have prejudiced personnel involved in the mechanism of delivering justice, we have a lot to fear.