Wednesday, March 03, 2010

Public Outrage and Criminal Justice

Today's New York Times reports on the case of Ruchika Girotra, who at the age of 14 was molested by a senior police officer in Haryana, India, and committed suicide three years later after an intense campaign of harassment against her family, including the false arrest and torture in custody of her brother. The family of a witness maintained pressure on the judicial system, backed by considerable attention from the media. The officer was eventually charged in 2000, ten years after the original crime. It took another nine years to win a conviction and a sentence (currently under appeal) of six months in prison and a trivial fine. 
This case is not in the least bit unusual, and illustrates the manner in which a reasonably free press interacts with a sluggish and often corrupt legal system to determine judicial outcomes in India. There have been numerous instances in which serious crimes have been committed by highly placed individuals against whom the evidence is overwhelming. But through extensive witness tampering and intimidation, enough doubt and confusion is sown that no case against the accused can be sustained. The subsequent media attention is then critical in bringing the perpetrators to justice, often after a lag of several years and multiple judicial twists and turns.
Five such cases were discussed in some detail in a paper on "Public Outrage and Criminal Justice: Lessons from the Jessica Lal Case" that I wrote recently with Dan O'Flaherty. (The paper was published last year in a conference volume edited by Bhaskar Dutta, Tridip Ray and E. Somanathan.) These cases all illustrate the importance of public outrage, channeled through a free and competitive press, in securing justice against powerful defendants. And they reveal the importance of what Albert Hirschman called "voice" in his extraordinary book on the variety of mechanisms that can serve to maintain effiiciency in organizations. 
The first of the cases we considered in the paper was that of Jessica Lal:
During the early hours of April 30, 1999, a thirty-four year old model named Jessica Lal was shot and killed at a private party in a South Delhi restaurant, allegedly for refusing to serve liquor to a guest after the bar had closed. The man in question was identified by three eye witnesses as Manu Sharma, the son of a senior Congress Party politician and former Union minister. After several days in hiding, Sharma surrendered to authorities in Chandigarh. In an interview with police that was subsequently broadcast on national television, Sharma confessed to the murder. This confession was later retracted, and a plea of non-guilty entered at trial. During the trial the three critical eye witnesses recanted earlier statements made to the police, and twenty-nine witnesses of lesser importance did the same. One of the eye witnesses, Shyan Munshi, changed his testimony so completely that his revised statement was used as exculpatory evidence by the defence.
Sharma and eight other codefendants were acquitted of all charges in February 2006, resulting in a public outcry against what was perceived to be a gross miscarriage of justice. During the weeks that followed the verdict, petitions were circulated, protest marches organized, and candlelight vigils held. Prime Minister Mammohan Singh publicly expressed concern at the general phenomenon of witnesses changing their testimony, in an oblique reference to the Jessica Lal case. President Abdul Kalam received a petition of 200,000 names collected by journalists at NDTV, and promised action. The decision was appealed to the Delhi High Court by the prosecution in March, and in December the lower court ruling was reversed with respect to three of the defendants. Manu Sharma was convicted of murder and sentenced to life in prison, and two other defendants were convicted for conspiracy and destruction of evidence.
While this case is perhaps the most widely known, there are others that followed a similar course:
Priyadarshini Mattoo was a twenty-five year old law student when she was raped, brutally beaten and strangled to death at her New Delhi residence on January 23, 1996. Although there was no eye witness to the murder, physical and circumstantial evidence pointed immediately to Santosh Kumar Singh, the son of a senior police officer then posted in Pondicherry. Singh had been stalking Mattoo for over a year at the time of the murder, with multiple instances of harassment having been reported to the police. He was seen outside her residence by a neighbor immediately prior to the attack, and blood stained pieces of his motorcycle helmet vizor were found beside the body. DNA tests confirmed the presence of his semen on her clothes and her blood on his helmet.
What seemed like an open and shut case, however, ended in an acquittal in 1999. Defence claims that the physical evidence had been tampered with while in police custody were given enough credence by trial judge to allow for reasonable doubt. Suspicions were raised by the judge regarding deliberate police misconduct, including false depositions, traced to the influence of the father of the accused: by the time of the trial Singh's father was among the most senior police officers in Delhi.
The acquittal triggered massive public outrage, and the case was appealed to the Delhi High Court in 2000. Little action was taken for several years, until the 2006 acquittal of Manu Sharma for the Jessica Lal murder led to renewed scrutiny and a sense of urgency in the part of the Court. The verdict of the lower court was reversed in October 2006, with the High Court finding that the "circumstantial evidence in the case is absolutely inconsistent... with the innocence of the respondent." Justices RS Sodhi and PK Bhasin observed that the acquittal by the trial judge had "shocked the judicial conscience" of their Court. Singh was sentenced a few days later to death by hanging.
The third case we considered was that of Nitish Katara:
While a studying at the Institute of Management Technology in Ghaziabad in 1998, Nitish Katara became romantically involved with a classmate, Bharti Yadav. Bharti was the daughter of D.P. Yadav, a major force in U.P. politics, and the sister of Vikas Yadav, who was subsequently convicted for destruction of evidence in the Jessica Lal case. Her family disapproved of the relationship and Katara received multiple threats over the course of their relationship.
On the night of February 2, 2002, Katara attended a wedding at which several members of Bharti's family were present. Four witnesses observed him leaving in the company of three men, including Vikas Yadav and a cousin, Vishal Yadav. Katara's remains, charred and battered beyond recognition, were found on a roadside the next morning. Vikas Yadav and a cousin, Vishal Yadav, went into hiding but were arrested a few days later. A detailed confession, admitting to the abduction and murder, was recorded by UP police and aired on national television. Vikas admitted to having killed Nistish with a hammer blow to the head and setting his lifeless body on fire. He subsequently led police to the spot where the body had been dumped and the murder weapon concealed.
Once the trail began, however, one witness after another "turned hostile", including all four witnesses who had earlier reported having seen Katara depart with Vikas and Vishal Yadav. In testimony before the court, Bharti Yadav denied a romantic relationship with Katara, admitting only to a vague friendship. There remains a single witness, a passer-by whose scooter broke down on the road taken by the accused, and who has testified to seeing Katara in the vehicle. This witness has reported having received threats against his life, and is currently under police protection. The case remains unresolved, and under intense public scrutiny.
Fourth we looked at what has come to be called the "BMW hit-and-run case":
At around 4am on January 10, 1999, a speeding black BMW crashed through a police checkpoint in Delhi, killing four people on the spot. Two others subsequently succumbed to injuries, leaving just one survivor, Manoj Malik. Three of the dead were police constables. A passer by who witnessed the crash, Sunil Kulkarni, came forward a few days later. According to his initial report to police, three individuals stepped out of the car, briefly inspected the damage, then fled from the scene. The damage was so extreme that the speed of the vehicle upon impact was estimated to be 140 kmph (about 90 mph).
The car was alleged to have been driven by Sanjeev Nanda, son of businessman and arms dealer Suresh Nanda, and grandson of Navy Admiral S.M. Nanda. Also present in the vehicle were his friends Siddharth Gupta and Manik Kapoor. They were returning to Delhi from a party in Gurgaon, and Sanjeev was found to have elevated levels of alcohol in his blood several hours after the incident. The BMW was traced by police following oil leaks from the scene of the crash to the Gupta residence, where it was determined to have been cleaned of blood and human remains. All three were charged with culpable homicide and destruction of evidence.
The trial is still in progress, but there have already been extraordinary changes in witness testimony. Claiming that his initial statement was made under police pressure, Kulkarni testified in October 1999 that it had been a truck rather than a BMW that had ploughed through the police checkpoint. The prosecution dropped him as a witness, considering him to be unreliable, but he was subsequently reinstated. In May 2007, Kulkarni identified Nanda as one of the three occupants of the vehicle, but then retracted this testimony two months later, saying that he had been unable to see any of them clearly.
Nanda now maintains that he was not in the vehicle at the time and had nothing to do with the accident. A sting operation by NDTV turned up evidence of attempted bribery, and it now appears that the witness spent eighteen months residing at a farmhouse owned by the lead lawyer for the defence. Nanda is free on bail while the proceedings continue.
Finally, we examined the so-called Best Bakery case:
The Best Bakery was a Muslim owned and operated business in Vadodara, Gujarat that was set on fire by a Hindu mob during communal riots on March 1, 2002. Fourteen people were killed in the attack, including the owner Habibullah Shaikh and eight other members of his family. Among the witnesses was Zahira Shaikh, the owner's eighteen year old daughter, who identified several individuals in the mob in a March 2 statement to police. The accused were also identified by Zahira in a statement before the National Human Rights Commission (NHRC) of India three weeks later. Twenty-one individuals were charged in the murder.
During the trial in May 2003, Zahira and other surviving members of her family retracted earlier statements made to the police, resulting in the acquittal of all the accused on June 27. Shortly thereafter, on July 11, Zahira claimed in a sworn statement before the NHRC that she and other family members had been threatened and forced to retract their statement. In doing this, she was assisted by Teesta Setalvad, secretary of the NGO Citizens for Justice and Peace. The NHRC petitioned the Supreme Court of India to order a retrial in a state other than Gujarat, and the Court did so on April 12, 2004. The retrial began in October 2004, before a Special Court of Sessions in Mumbai.
At a dramatic November 3 press conference one day before she was due in court, Zahira changed her testimony yet again, claiming that she had been abducted by Setalvad and her organization, threatened and confined for months, and forced to file false statements against the accused. A sting operation by Tehelka magazine in December revealed that a substantial bribe of 1.8 million rupees (about $40,000) was paid to Zahira and her family in order to retract her testimony against the accused. On February 24 2006, nine of the original accused were convicted and eight acquitted by the Court. In separate proceedings, Zahira was convicted of perjury and contempt of court.
In the absence of a vigilant and competitive media, it is unlikely that any of these cases would have resulted in convictions. 
It has been four decades since Albert Hirschman published his classic Exit, Voice and Loyalty. In it, he argued that market competition is just one of several mechanisms through which efficient functioning of organizations can be sustained. Firms in competitive markets are forced to function well for fear of exit: low quality or high prices will induce their customers to look elsewhere. But there are many organizations in which exit is not a realistic option, either because no competitors exist, or because individuals have a sense of loyalty to the group with which they are affiliated. This applies to ethnic groups, nation states, and (most relevant to the examples considered here) judicial systems. In this case, voice remains the only mechanism available for inducing good performance. And without a free and competitive press, the voice of public outrage will often remain muted.
This is how Dan and I conclude our article:
The central message of this paper is that legal institutions alone are not enough to produce justice. In terms of Albert Hirschman’s memorable formulation, effective judicial systems require a balance of exit and voice. Open competition in politics and the media facilitates and amplifies the expression of voice, keeping blatant miscarriages of justice at least occasionally in check.
Albert Hirschman will be 95 years old next month, and is in poor health. He is seldom mentioned as a serious contender for the the Nobel Memorial Prize in Economics. But when I look at the list of those who are considered to be likely recipients, I can't escape the feeling that something is not quite right with our profession.


Update (3/4). I just came across two wonderful posts on Hirschman by Dani Rodrick. From the first of these:
Reading this work, I am awed once again by a mind which was as much at ease with the technical arcana of irrigation projects as it was with the rarified world of political philosophy. Yet I can also see why he must have been such a source of frustration for his contemporaries.  He was in many ways the ultimate contrarian--always looking for the unique and the exceptional, while not shying from building general theories from those cases.  He was a critic of the reigning development theories of his time (the big push and balanced growth), arguing, quite correctly in my view, that the under-developed societies who had the capacity to implement these comprehensive programs would not have been under-developed in the first place.  He argued instead for a strategic, opportunistic approach, based on making the best of what you have.
And from the second:
Which brings me to the question of the Nobel Prize for Hirschman. I think Hirschman's contributions have been greatly under-appreciated within economics, and that goes a long way to explain why he has not won a Nobel. If the Nobel was given for impact on social sciences more broadly, Hirschman would have clearly won a long time ago. But who knows, there is still some time...   
Rodrick was the first recipient of the Albert O. Hirschman Prize, awarded since 2007 by the Social Science Research Council.


  1. Very interesting post, Rajiv. I'd be curious to hear your thoughts on a book I recently read ("White Tiger") which occasionally touches on some of the same issues. I've read reviews, which suggest that the book paints too bleak a picture of corruption in modern India.

    It is all too easy to think of many media outlets as at best useless and vapid, and at worst callously exploitative of human misery (think CNN reporters trotting around Haiti, acting concerned & outraged).

    Your post convincingly suggests that a media-less alternative would be far worse.

  2. Yes, I do believe that without a competitive and free press matters would be much worse, and not only in India (think of New Orleans for instance). I enjoyed White Tiger but it's a work of fiction so I wouldn't read too much into it.