Y

ears ago, I happened to look

through some affidavits
submitted by police officers
in a custodial death case in
West Bengal. It was one
eye-opening experience.
They concocted a story
to explain the death of
this young man, saying he hung himself
with his gamchha, or towel. They might
have got away with it, too. Unfortunately
for them, they had not cared to compare
versions so as to get the details of their
fiction right. Times were mismatched,
so were movements. I mean, there
were details that differed from one page
of an officers affidavit to the next page,
or even paragraph, of the same affidavit.
(I proceeded to the District Jail at 7:30
pm, said one, followed in the next
paragraph by I entered into the
District Jail at 7:15 pm.) These
inconsistencies
alone
told
the
tale of what had really happened:
these officers had themselves beaten
the young man to death and then
decided to make up a tale to
explain the death. But if thats
not nauseating enough, even more
telling was that these men drafted and
submitted these mismatched affidavits, as is, to the court. Clearly they
thought merely submitting their
versions would be enough for them to
get away with their crime. Clearly
they simply assumed that nobody
would compare versions, realise
their crime and actually seek to
punish them.
The eye-opening part, for me, was
not so much that they killed the poor
man; after all, custodial deaths are hardly
unknown in this country. No, it was that
they made that assumption. It was the
arrogance of that assumption.
Now heres a whole book that
speaks, in essence, of that same
arrogance. Of people who carry
out wholesale subversion of our
laws, of the very idea of justice, in
the full expectation that they will
never pay a price. And perhaps they
are right in that expectation, because
perhaps a lot of people really dont
want them to pay a price anyway.
Manisha Sethi actually spells this idea
out on page 125: Bias is not simply the
bias of police and agencies. ... Rather, it
rests on the knowledge of that bias in
our society, polity and media, and uses
it to its full advantage. [Two named
police officers] know that they
can get away with their jaundiced
assumptions.
Consider that one of these police
officers, MN Singh, is on record
saying: [Terrorism] just doesnt
exist in the Hindu pantheon. What
can law and order possibly mean
when a high-ranking police officer,
faced with egregious crimes he
must tackle, rules 80 per cent of the
population out of consideration as
suspects, purely because of their
religion? If youre wondering about
that, consider too that plenty of
people will nod their heads sagely,
agreeing with Singh. Singh knows
as much, which allows him to say what
he did.
And weve not yet come to the
real point here, which is that Hindus
are every bit as capable of terrorism
as anyone else. Nothing unusual
or insulting in saying so. Its just
the way of the world that ghastly
criminality knows no religious
boundaries. Since were talking about
Hindus, witness Maya Kodnani and

L A W

Theres something
rotten in the state
of India

Kafkaland: Prejudice, Law and Counterterrorism

in India
By Manisha Sethi
Three Essays Collective, Gurgaon, 2014, 216 pp., Rs 350
ISBN 978-93-83968-00-8
DILIP

DSOUZA

Naroda-Patiya, or the LTTE, or the

1984 slaughter in Delhi, or the 199293 slaughter in Bombay, or the
2002 slaughter in Gujarat, or names
like Sadhvi Pragya and Swami
Aseemananda. How does all this
square with Singhs claim of a pristine
Hindu pantheon?
In effect, Sethis book is one long,

credibility of witnesses [and] general

unreliability of prosecution.
The
trial court, observed the High
Court, had not properly understood
the concept of proof beyond a
reasonable doubt.
Imagine: a court had decided to take
the lives of three men despite itself
remarking on the unreliability of the

One police officer,

MN Singh, is on record
saying: [Terrorism] just
doesnt exist in the Hindu
pantheon. What can
law and order possibly
mean when a high-ranking
police officer, faced with
egregious crimes he
must tackle, rules 80 per
cent of the population
out of consideration as
suspects, purely because
of their religion? If youre
wondering about that, consider too that plenty of
people will nod their heads sagely, agreeing with
Singh. Singh knows as much, which allows him to say
what he did
detailed analysis of conundrums
like this, seen via various cases and
situations. It is a passionate, stronglyfelt and thoughly depressing book.
There is case after case of injustice,
lies, persecution, you name it. All
perpetrated by ordinary Indians,
winked at by ordinary Indians. All in
all, you have to wonder what kind of
justice we have managed to deliver,
even what kind of society we have built
for ourselves, in nearly seven decades.
Where do you start? Several men
were put on trial for bomb blasts in
Delhis Lajpat Nagar in 1996. The
lower court sentenced three of them
to death. The High Court later acquitted
two of them and commuted the
third sentence to life in prison,
observing that the trial court had
itself made note of lack of

case against them. And this happened,

explains Sethi, because the antiterror discourse and the apparent
urgency of national security justifies
the lowering of the burden of proof .
In times when that burden should be
felt most seriously of all, our courts
choose instead the easy way: overlook
a shoddy prosecution, because this is
about terrorism.
In Madhya Pradesh, a court acknowledged that prosecutors had failed
to produce any evidence against the
accused that proved their involvement
in the Pithampur case of 2008.
But this lack of evidence was no
hindrance to their conviction. The
absence of evidence, observed the
court, does not have an adverse
impact on the prosecution. If youre
marvelling at that, youll do a

BIBLIO : JANUARY - FEBRUARY 2015

26

double take at what the court said

next: It is not usually possible
to find such proof; one cannot in
fact expect or desire formal proof.
One cannot? Funny, I thought
justice built on evidence was one of
those fundamental precepts of democracy. But now we must not expect
or desire it.
Elsewhere, in the case of the murder
of police Inspector MC Sharma in the
Batla House encounter, a sessions
court convicted Shahzad Ahmed
despite the prosecution being unable
to establish even his presence at the site
of the encounter. Regardless, the judge
clearly had more persuasive matters on
his mind than the mere presence of the
accused at the crime scene, because he
observed: [This] incident shocked
the collective conscience of the entire
nation. This is also an aggravating
factor against the convict.
Certainly the murder shocked the
nation: the killing of a police officer
on duty will do that. But since when
did such shock itself become more
evidence against a man? Besides, is a
judge supposed to interpret and apply
the law? Or pay attention to some
ephemeral collective conscience?
Where have we come to if in this land
of ours if I may paraphrase Orson
Welles as the lawyer for the defence in
the film Compulsion our courts of law
cannot help but bow down to public
opinion?
I could go on, as this book does.
There are men supposedly arrested
while getting off a bus, but the bus
tickets the police produced are for a
date different from their arrest. Theres
the transcript of an investigation in
which the asked question What comes
after six? becomes the transcribed
question How many bombs were
planted?, which allows the proferred
answer, seven, to take on a rather
different meaning. Theres the man
who is routinely mentioned on talk
shows and by security experts as being
involved in Haren Pandyas murder;
only, he is not named as an accused in
that case. Theres the particular witness
who has clearly witnessed all kinds
of activities relevant to a case, at least
as spelled out in witness statements
produced in court by Maharashtras
Anti-Terrorism Squad. Except that two
of those activities the recovery of
some clothes, and the recovery of fake
bombs happened at the same time, so
how was he a witness to both?
Few of us like to hear that theres
something rotten in the state of
Denmark, in this case India. It is much
better to lose ourselves instead in
a web of self-congratulatory rhetoric
and euphoric hosannas to the
latest messiah. Acche din (better
days) are coming, we think. Yet Sethi
reminds us that for many Indians,
there are no prospects of better
days. More than that, the hosannas
mask an ugly reality that is also
India: that justice is too often too
remote, even nonexistent for too
many of us. We may choose to turn
our faces away from that, or pretend
its not true, whatever. But over
the years, as this book so clearly
tells us, our pretence has allowed
for a formidable cache indeed of
such injustice.
And until we are able to look
that cache in the eye and address its
implications, we will remain what
this book calls India. Not Denmark,
n
okay, but Kafkaland.