Justice emaciated by perjury

The Indian public and press wail endlessly about crimes that go unpunished, from fraud and embezzlement to rape and murder. But one major crime attracts no attention or odium: perjury. The only newspaper column I can recall on this subject was an excellent one by Manoj Mitta. Our cavalier toleration of perjury is a major, underestimated reason why our justice system has become farcical.

The Best Bakery case was a terrible case of communal murder during the Gujarat riots last year. Yet the accused were acquitted because several witnesses, mostly Muslims, revised their version of what had happened. In technical parlance, the witnesses turned hostile. In plain language, they told lies despite taking an oath to tell the truth, the whole truth and nothing but the truth.

This has been confirmed by Zahira Sheikh, the key witness in the case. She has now appeared at a press conference declaring that “whatever I said in court was false” and “I was compelled to lie under pressure.” She now demands a retrial outside Gujarat, arguing that no fair trial is possible in that state.

Many critics have castigated the prosecutors, police and judge in the Best Bakery case. None seem to find anything criminal about Zahira Sheikh and others turning hostile. Yet successful justice systems the world over treat perjury as a terrible crime which will ruin the whole justice system if not rooted out. If everybody in court tells lies, you cannot hope to discover the truth. Witnesses need to believe that if they lie, they will be jailed. Only then will the incentive to tell the truth exceed that to lie. That is why perjurers are jailed without compunction in countries with decent judicial systems.

But not in India. What is worse, neither the public nor the judiciary seem much concerned about it. They seem to think that when so many other crimes go unpunished, why focus on perjury? They fail to see that if perjury is not checked, the judicial system simply cannot deliver justice. Forget the raft of legal reforms proposed by various pundits and commissions. Start with a step that requires no new laws or regulations. Enforce relentlessly the existing law on perjury.

By this yardstick, Zahira Sheikh should be tried for perjury immediately. Given the extenuating circumstances, she is entitled to a mild punishment of perhaps one week in jail. But a message needs to go out, loud and strong, that lying in court is not a permissible tactic for any witness, regardless of threats they face. Today, all sorts of pressures can be put on witnesses. Criminals routinely threaten them with death. There is no witness protection programme, as in the United States. Witnesses believe the police cannot shield them, that criminals can injure or kill them with impunity.

The press has long wailed about this. But the press has ignored the fact that friends of witnesses urge them to turn hostile because there is no fear of prosecution for perjury. The civilised world regards perjury as an extremely serious offence, but uncivilised India treats lying in court as routine, even as common sense. Elsewhere, the fear of being jailed for perjury persuades witnesses to tell the truth despite threats. In India, there is no such pressure. And so witnesses keep lying.

The Best Bakery case is only the latest of a long series of cases where justice is thwarted in brazen killings. In the Jessica Lal case, one witness after another turned hostile, except for an NRI who lived abroad and so could not be intimidated. In the BMW case, the original facts changed magically in the middle of the case because nobody feared prosecution for perjury. Who cares about an oath taken in court, on the Bhagvad Gita or Koran? People no longer fear God, only godfathers.

Zahira Sheikh demands a retrial in another state to get justice. There are global precedents for this. Readers may have seen the film The Hurricane about a black boxing champion Rubin “Hurricane” Carter. He was convicted on concocted evidence of murder in the state of New Jersey by two separate juries. His lawyers discovered new evidence that could exonerate him, but felt there was no point appealing in New Jersey because of racial prejudice, and the fact that so many high-ups in the state legal system had built their careers on the Carter trials. So Carter’s lawyers presented the fresh evidence directly to a federal court, against all procedural rules. They claimed justice could not be obtained by following the normal procedure of presenting the new evidence in New Jersey. The federal judge set aside normal procedure and heard the case. He denounced the whole New Jersey system, and set Hurricane Carter free.

I would love to see a similar vindication of Zahira Sheikh. But she has ruined her own case by lying in court, and saying something else outside. The solution: she should voluntarily plead guilty to perjury and suffer quick incarceration. That could be legally maintainable evidence that her statements in the Gujarat court were false. Only then, I suspect, can another judge allow her to give a different version of events.

Whether this tactic will stand up legally, I do not know. What I do know is that justice in India has been castrated by widespread perjury. The Supreme Court has ordered the creation of thousands of new courts to improve justice. But if this merely multiplies perjury, more judges will not mean more justice.

One simple way to check perjury is for any charge by any person in a murder case to be in the form of sworn depositions before a magistrate. If the witness then turns hostile, it will amount to perjury, with no defence possible, and the judge can convict the witness on the spot. That will surely persuade witnesses that lies are less profitable than truth. That may the most important legal reform of all that we need today.

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