Time to revisit incentives for justice system

It is a unique version of a real “new India”. The apex court in the judicial arm of the state recently took the extraordinary step of releasing from prison, six nomadic tribals convicted of murder, upon an intense and close scrutiny of the evidence involved — literally saving them from the jaws of death. The individuals have been granted compensation of Rs 5 lakh each, and released after languishing in prison for 16 years. A probe has been ordered into the investigation officials responsible for fixing the case.


The case underlines issues faced not just with our criminal justice system or for that matter the risk of how infirm the criminal justice system is for tolerating the death penalty. The case holds very valuable lessons that have relevance even for civil proceedings in which, findings that can finish a career or the ability to live without social taint, are returned with similar laxity. 


The Supreme Court discovered the incredibly-logical-to-find lacunae in its review — something that three courts, including an earlier bench of the Supreme Court, did not figure out. The six convicts had been held guilty of murdering a group of five individuals and raping a victim in June 2003. In three years (rapid by any global standard), the Nashik Sessions Court sentenced the six accused to death. While the Bombay High Court modified the death sentence for three of them, in 2009, the Supreme Court reinstated death penalty for all of them. 


It turned out to be a case of the investigative agencies having framed the accused. The key facet of the reversal was that a survivor of the crime had identified four completely different men from photographs of history-sheeters shown by the police immediately after the crime. However, much later, they identified the six tribals, who went on to to be accused and held guilty. Multiple leads that would logically have had to be followed and investigated were not pursued. A probe into the conduct of the police officials who have not just survived but thrived, has been ordered.


The case holds a host of lessons for regulatory agencies in every sector of activity in the country. Under pressure to meet targets and complete work, officials of regulatory agencies have a perverse incentive to conjecture and surmise that someone is guilty of heinous accusations of fraud or insider trading. When levelled with similar negligence, the accusations alone can finish careers of individuals and ruin entire dependant families -- the civil equivalent of the death penalty. 


Movie themes such as “Nobody Killed Jessica” give primacy to societal blood-thirst over the need for precise fact-finding in meting out justice. This has led to now-judicially-acknowledged concepts such as “collective conscience” that judges have said must be catered to. The innate and abiding faith of the society that the man in uniform would never fake his case is of no value unless there is real disincentive for ruining the lives of accused. 


In civil regulatory proceedings, for no reason other than the very fact that wrongdoing has been suspected, peoples’s lives can be brought to a grinding halt, and that too without a pre-decisional hearing.  In such proceedings, the problem is compounded by the only check and balance -- a post-decisional appeal -- with the decision itself having been arrived at with the regulator doubling up as prosecutor and judge.


That three courts were happy to buy the theory propounded by the investigators in this case, also shows how ineffective judicial oversight can be. Rabble-rousers on prime time television, the blood-rush of popularity when public sentiment is aroused, and basic human frailty can be a potent mix to weaken such oversight.


The only solution to this fundamental problem is to balance the incentive for “solving” a case with a disincentive for faking a solution, and a disincentive for not playing an effective role as a check and balance. The very process of investigation, relentless front-page news coverage of the investigation, (fuelled by the abiding belief of journalists in the veracity of everything dished out by “sources” in regulatory agencies giving “exclusives” — another perverse incentive), are in themselves, a severe punishment. The punishment is for no reason other than being on the wrong side of the law enforcement agencies. The Supreme Court’s magnanimous acknowledgement of its earlier bench’s mistake is an example to be emulated.

The author is an advocate and independent counsel

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