Why Manu Sharma Got Away With It

[UPDATE TO THIS POST FROM DECEMBER 2006: The prior ruling has been overturned, and Manu Sharma has now been found guilty. Most of my views on the problems in the Indian legal system remain -- this new ruling has happened in large part because of the popular outcry against the earlier not-guilty verdict.]

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Contrary to what Somini Sengupta argues in today's New York Times, Manu Sharma's acquittal in the Jessica Lal murder case is not only about India's class hierarchy. In fact the rate of conviction in criminal cases in the Indian legal system is incredibly low across the board. If Manu Sharma had been a taxi driver, he still could have gotten off. (Yes, it would have been less likely, but it happens every day.)

There are severe flaws in the Indian Evidence Act of 1872. See especially Sections 25-29:

25. Confession to police officer not to be proved
No confession made to a police officer shall be proved as against a person accused of any offence.

26. Confession by accused while in custody of police not to be proved against him
No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.


27. How much of information received from accused may be proved:
Provided that when any fact is deposed to as discovered in consequences of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether if amounts to a confessions or not, as relates distinctly to the fact thereby discovered, may be proved.

29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.
If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining, it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. (link)

In short, the laws governing when confessions are valid are full of loopholes that were, in the Jessica Lal murder case, exploited by the defense. As I understand it, these protections of the defendant were introduced to reduce the prevalence of confessions produced by torture. But what the rule has done instead is make the standard of "relevance" too high. Even with a direct confession of guilt, the defendant can find a way to have it later thrown out through one or another loophole.

There are similar problems with the rules for Witnesses in the Indian Evidence Act -- so it's quite common to have witnesses withdraw their testimony, especially after money is deposited in a bank account somewhere for them. (There should be a word for such funds: testimoney.)

The entire Act is still the central text in Indian criminal law. It's been modified some over the years, but the footnotes on Helplinelaw don't have any modifications dated after 1951.

My sense is, it's time to throw out large sections of the code, and rebuild it along more modern lines. Maybe now that the politicians and the justice system are feeling the heat, there might be the willpower to seriously get this process rolling (though unfortunately all that is likely to happen is the formation of yet another committee).

Incidentally, the Indian Evidence Act is largely responsible for the mess of the Best Bakery Case (it's too easy for witnesses to change their testimony). Admittedly, the involvement of extremely unethical witnesses (Zaheera Sheikh) didn't help matters. It also explains why torture by police (see Maximum City) has become so routine and expected: the police know that suspects in custody aren't likely to be convicted, so they impose some of their own rough justice.

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Another incidentally: unfortunately, I share most of a name ("Amardeep Singh Gill") with one of the witnesses who changed his testimony. Mr. Gill was also charged with tampering with and destroying evidence, and was acquitted alongside Manu Sharma. Feels a bit weird...