Trials of Truth

by Pinky Anand

  The intention of Article 19(2) of the Constitution is to deal within itself the public-law remedy but not to take in its ambit an actionable claim under the common law by an individual.

  Since assault on an individual’s reputation cannot be considered as a fundamental right, therefore, criminal defamation cannot claim to have its source in Article 19(2).

  For the purpose of determining whether defamation is civil or criminal in nature, case laws were relied upon and it was found that defamation cannot be given a ‘restrictive meaning’. The court was confronted with the question of whether the harm caused by defamation is restrictive to only individual or extends to the society as a whole. It stated:

  [I]ndividuals constitute the collective. Law is enacted to protect the societal interest. The law relating to defamation protects the reputation of each individual in the perception of the public at large. It matters to an individual in the eyes of the society. Protection of individual right is imperative for social stability in a body polity and that is why the State makes laws relating to crimes. A crime affects the society. It causes harm and creates a dent in social harmony. When we talk of society, it is not an abstract idea or a thought in abstraction. There is a link and connect between individual rights and the society; and this connection gives rise to community interest at large. It is a concrete and visible phenomenon. Therefore, when harm is caused to an individual, the society as a whole is affected and the danger is perceived.

  While analysing the concept of crime with reference to its effect on society at large, the court went on to state: ‘[T]reating defamation as a criminal offence can have no public interest and thereby it does not serve any social interest or collective value is sans substratum.’

  It was urged that defamation has been described as an offence under Section 499 of the IPC, where it protects an individual’s reputation in his or her own eyes, which is subjective, and therefore cannot be held to the level of public interest. Thus, in order to resolve the issue presented, the court was required to scrutinize whether the criminalization of defamation under Section 499 withstands the test of non-excessiveness, public interest and non-arbitrariness.

  The Supreme Court answered the question, upholding the constitutional validity of the criminal character of the law of defamation, and stated: ‘[T]herefore, in the ultimate conclusion, we come to hold that applying the doctrine of balancing of fundamental rights, existence of defamation as a criminal offence is not beyond the boundary of Article 19(2) of the Constitution, especially when the word “defamation” has been used in the Constitution.’

  The court concluded that keeping in mind the constitutional values and the government decision to not repeal the pre-constitutional defamation law, it is difficult to reach a final conclusion on whether the existence of criminal defamation is absolutely removed from the ambit of freedom of speech and expression, as echoed by the court. ‘As a prescription, it neither invites the frown of any of the articles of the Constitution, nor can its very existence be regarded as an unreasonable restriction.’

  On a detailed analysis of Section 499 of the IPC, the court concluded that neither the main provisions and explanations, nor the exception remotely indicate any vagueness.

  An argument was also raised by the plaintiff where it was contended that Section 499 defeats the doctrine of proportionality. This was rejected by the court, which held that criminal defamation does not impede the doctrine and at the same time it also complies with the test of reasonableness.

  I am of the personal opinion that the judgment, though subjected to criticism on various public platforms, has sound legal principles at its core. In a country where reputation is often considered more valuable than life, the decriminalization of defamation would dilute the seriousness of the harm it has the ability to cause. At the base of this lies the idea that honour cannot be recompensed monetarily and that is a collective thought of the majority of the society. The legislature has exercised its wisdom to uphold this idea by retaining defamation as a crime.

  It is, however, of absolute importance that the freedom of speech and expression be exercised in a positive manner. The reasonable restrictions envisaged make sure that this vital liberty given to the citizens of India is not misused and does not become a tool for harassment and vendetta.

  5

  CIVIL SOCIETY: A CHAMPION OF JUSTICE

  PRIYADARSHINI MATTOO AND JESSICA LAL

  When I think about the profession I have dedicated my life to, I realize that the essence of law is the codification of societal norms. We can see this especially in India, where, till now, a uniform civil code has not been made applicable. We, as a society, are so diverse and varied, but there are a few common, basic features that characterize us as civilized human beings. There are some nodal points in our collective consciousness, which, if provoked, will invariably lead to mass public outrage, despite restrictions placed on us by class, caste or religion.

  So what propels this mass uprising? When does human outrage take over from our nurturing prejudices and we, collectively, as humans, bay for blood, forcing the system to take stock?

  Instances of public outrage are as old as society itself—when Marie Antoinette asked the peasants to eat cake, or, as seen in the present times, when a young girl was brutally murdered in a bus roaming the streets of Delhi. In our nation, too, the rage of civil society has existed since the birth of modern India. I would go so far as to say that the birth of modern India itself was a result of outrage on the part of the civil society against the British oppression.

  We feel proud when we bring change as a society—we fight for what is right and force the system to change. Often, the incidents that jerk us awake are horrific and brutal, but they bring about change, and for me, a sense of pride in our ability to recognize and take action against atrocities. Throughout my career I have been fortunate enough to be a witness to and be a part of these civil-society awakenings, two of which involved Priyadarshini Mattoo and Jessica Lal.

  The murders of Priyadarshini Mattoo and Jessica Lal shocked the public conscience, particularly because the two women embodied the better aspects of modern India. They were both educated and were looking forward to successful careers in their chosen fields. Priyadarshini, a student at Delhi’s premier law college, was the ideal daughter any parent would wish for. Jessica symbolized the aspirations of the Indian youth as a successful model enjoying her life in the nation’s capital. The murders of these respectable, successful citizens of society struck a chord with the public.

  The public authorities, in both cases, failed to do their duty in the pursuit of justice. Priyadarshini’s killer was acquitted by the trial judge even though the chain of circumstances was complete and consistent with the guilt of the accused. In Jessica’s case, the police watched as the murderer bribed and intimidated his way to freedom.

  Where public authorities failed, civil society succeeded. The media and the public played a pivotal role in ensuring the murderers received fitting punishment. Demonstrations were held in Delhi demanding justice for these young victims. The media covered the trials in minute detail, forcing the system to take prompt notice of the cases. The cases were heard on a day-to-day basis by the Delhi High Court, and the social uproar they created led to justice in both instances, despite the influence purportedly exerted by the accused. The killers of Priyadarshini Mattoo and Jessica Lal are now serving life-imprisonment terms for their heinous crimes.

  The two cases marked a new epoch in the lethargic legal system and gave many victims the assurance that they are not at the mercy of the system. Civil society can often make a mark, but usually, a ‘media trial’ is regarded negatively in criminal jurisprudence. Fortunately, despite the abject failure of the investigative agencies, there was enough compelling evidence in these two cases. It was the mindset that needed a push.

  This chapter aims to analyse the role of social pressure in bringing these cases to justice. The two cases of Priyadarshini Mattoo and Jessica Lal pre
sent the most potent examples of the power of civil society.

  Priyadarshini Mattoo

  Serious questions are raised when a judge states a man is guilty, yet declines to convict him. After all, why would a judge refuse to punish a man he proclaims to be guilty? As baffling as it might sound, this is exactly what the trial court judge did in Priyadarshini Mattoo’s case. In a judgment that shocked the nation, the judge apologetically held: ‘I know that he is the man who committed the crime. [But] I acquit him, giving him the benefit of doubt.’

  One of the famous tenets of criminal jurisprudence as stated by Voltaire in 1749, ‘’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent.’ Or as echoed by Benjamin Franklin, ‘It is better 100 guilty Persons should escape than that one innocent Person should suffer.’ But letting the guilty escape is not doing justice either. In this case, the man was not innocent by any stretch of imagination, as shown by the evidence produced at the trial. So then why was he acquitted? The answer lies in Priyadarshini Mattoo’s murder trial.

  The harassment of Mattoo started in a manner that has been glorified by Bollywood—boy follows girl, constantly telling her he loves her and tries to convince her to go out with him. Unfortunately, in this case, stalking led to the downfall of two young lives. Mattoo was a twenty-five-year-old student at Delhi University’s prestigious Faculty of Law, and Santosh Singh was her senior. Santosh had feelings for Priyadarshini and used to follow her around everywhere, almost stalking her, even after she graduated from the university. Santosh harassed and intimidated Priyadarshini on numerous occasions. Increasingly frustrated by his behaviour, she filed a police complaint against him as a last recourse. The police summoned Santosh to the police station and warned him. Priyadarshini was given a personal security officer for her protection.

  Soon thereafter, Priyadarshini was found brutally murdered at a relative’s house. Santosh was the main suspect from the start as Priyadarshini’s relatives knew of his previous conduct. Following Santosh’s denial of any wrongdoing on his part, the matter went to trial.

  This case fits into the narrative of a rich and powerful father doing everything in his power to subvert the law and protect his son. Santosh Singh was the son of the Commissioner of Police in Delhi. It was noted that the officials of the Delhi police sat on complaints, conspired to conceal evidence and did everything that they were not supposed to do. This could well have closed the chapter without Santosh facing any consequences. But the media rose to the occasion and waged a war.

  The additional sessions judge in the case, G.P. Thareja criticized the role of the Delhi police in the trial: ‘There has been particular inaction by Delhi Police’, he said, while observing that Santosh’s father was probably involved in the subversion of the investigation process. The Delhi High Court agreed with the trial court that the police were reluctant to act on the repeated complaints of harassment and stalking against Singh as his father was a senior IPS (Indian Police Service) officer. The verdict stated that ‘junior staff [did] not react to complaints against the relatives of their fraternity’, and referred to the trial court’s observation that the approach and working of the subordinate staff of the Delhi police clearly reflected that the rule of law ‘is not meant for those who enforce the law nor for their near relatives’. All of this went against Santosh at the time of the verdict.

  Extensive coverage by various news channels and newspapers created pressure on the CBI, which filed an appeal in the Delhi High Court. Due to the intense media scrutiny, the case was heard on a daily basis, and finally the court pronounced Santosh Singh guilty.

  The high court noted thirteen circumstances that went against the accused:

  1. The accused had been continuously harassing the deceased right from the end of 1994 to January 1996, a few days before her death. Some of these incidents included:

  (a) On 25.2.1995, while the deceased was travelling in her car, the accused followed her on his motorcycle and tried to stop the deceased at the traffic point. The accused gave an undertaking to the police, to ‘not to harass in future’. After this undertaking the accused was let off by the police.

  (b) On 16.8.1995 the accused followed the car of the deceased on his motorcycle up to her residence at Vasant Kunj. The accused tried to break open the door of her residence. This time again the accused gave an undertaking not to have any concern with the deceased in future.

  (c) On 6.11.1995 the accused tried to catch hold of the arm of the deceased.

  (d) Priyadarshini Mattoo also filed a complaint dated 27.10.1995 to the Dean, Faculty of Law, Campus Law Centre, stating harassment. The accused was advised to desist from such activities. After humiliation, the accused in retaliation made complaints to the authorities of University of Delhi on 30.10.1995 alleging that Mattoo was simultaneously pursuing two courses from University of Delhi i.e. M.Com. and LL.B. in violation of the rules. In pursuance of the complaint, Prof. B.B. Pandey issued show-cause notices to the deceased seeking her explanation. In response Mattoo submitted that she was a student of M. Com. back in 1991. The deceased was yet to appear in LL.B. IIIrd Year examination. Mattoo claimed that the complaint was malicious. Her result of LL.B. 5th Semester examination was withheld by the University of Delhi pending a final decision on the said complaint.

  2. The accused had more than once given an undertaking that the accused would not harass the deceased in future while admitting that the accused had been doing so earlier.

  3. The motive of the accused was to either have the deceased or to break her.

  4. On the day of occurrence, the accused was seen on the premises of Faculty of Law, University of Delhi in the forenoon, where the deceased had gone to attend her class. The accused was no more a student of Faculty of Law at that time.

  5. At the crucial time before murder, i.e., about 5 p.m. on 23.1.1996, the accused was seen outside the door of the flat of Priyadarshini with a helmet in his hand, which had a visor.

  6. On the day of occurrence of the murder, the accused had reached late to attend class at Indian Law Institute, Bhagwan Dass Road, where the accused was a student too.

  7. Immediately after the murder, the mother of the deceased had raised a suspicion that the accused had a hand in the murder of her daughter.

  8. When the accused joined investigation on the night between 23/24.1.1996, the accused had an injury on his right hand. There was swelling and fracture on 5th metacarpal of his right hand. There was no plaster or bandage on his hand. That injury was fresh, having been caused 24 to 38 hours earlier. The blood pressure of the accused at that time was also high, which showed anxiety.

  9. DNA and finger-printing tests conclusively established the guilt of the accused.

  10. On 25.1.1996, the helmet of the accused, which was taken into possession, had a broken visor. On 23.1.1996 before the murder, it was found by Shri Kuppuswami and Personal Security Officer Rajinder Singh that the helmet of the accused had a visor. Violence was detected on both sides of visor. Helmet was besmeared with a speck of blood. At the scene of crime, pieces of visor were found near the body of Mattoo smeared with her blood.

  11. The deceased had 19 injuries on her besides three broken ribs. These injuries were suggestive of force used for rape. A tear mark over the area of left breast region on the T-shirt of the deceased suggested that the force was used for molestation.

  12. The accused took a false defence that fracture on the hand of the accused was sustained on 14.1.1996 and it was not a fresh injury. The accused also gave false replies against proved facts.

  13. The influence of the father of the accused resulting in deliberate spoiling of the case.

  One of the main failures of the Central Bureau of Investigation (CBI) was its inability to produce Virender Prasad, the domestic help in the house where Priyadarshini was found dead. The Delhi High Court wondered whether this had ‘resulted in obstructing the ball of proof of criminal justice from
going beyond reasonable doubt due to lack of fairness on part of the CBI in producing such evidence for judicial scrutiny/review’. The CBI recorded Prasad’s statement but could not produce him in court as a witness. However, Virender Prasad was easily tracked down at his village by a media house.

  According to the trial court, the conduct of the prosecution should have been rooted in the principles of fairness and good sense. However, they conclusively and continuously tried to impede the investigation. The judge held that due to the CBI failing to produce relevant circumstantial evidence in the case, the benefit of the doubt ought to be in favour of Santosh Singh. Thareja, the additional sessions judge, acquitted Singh on the charge of rape and gave him the benefit of the doubt for murder, disregarding the evidence of the expert witness. The trial court rejected the DNA evidence presented before it, contending that it had been tampered with. The high court observed: ‘Thus the court is left to consider unfairness on the part of the CBI in keeping the material defence evidence collected by it away from court, created a hole in the proof of the case beyond reasonable doubt.’

  In criminal jurisprudence, it seems fair to give the benefit of the doubt to the accused. There are many cases wherein the fault of the investigating agency weakens the case. Unfortunately, in many cases, it seems like a deliberate omission. Should a deliberate default on the part of the investigation agency always go in favour of the accused? That is an unresolved matter of discussion in criminal jurisprudence.

  It was reported in various sources that the accused had got married and also become a practising advocate in Delhi itself. On 17 October 2006, Santosh Singh was found guilty under Sections 302 and 376 of the IPC, for murder and rape respectively. The verdict blamed G.P. Thareja’s original judgment: ‘The trial judge acquitted the accused amazingly taking a perverse approach. It murdered justice and shocked judicial conscience.’