The 1998 case helped Justice Prabha Sridevan understand the social fabric of India. And, she writes, it convinced her that of all the institutions of a democracy, the court was the most crucial.
On February 14, 1998, 19 bombs exploded in Coimbatore, Tamil Nadu. It was a day of unimaginable terror and horror. The explosions lasted for forty minutes, from 3:50 pm to 4:30 pm, and could be heard continuously. All the blasts fell within an elliptical shape. The first blast was at Sir Shanmugam Road at 3:50 pm, then Gani Rowther at 4:00 pm and it went on like. The configuration of the sites, the timing and spacing were very telling: Kannappa Nagar at the top, R.S. Puram at the left, the National Travels office to the right and Ukkadam market and CMC Hospital forming the base.
A year before I retired as judge of the Madras high court, I was asked to handle this mammoth case. It had been heard over nine years by several judges in the sessions court and the judgment was pronounced in 2007. There were 163 accused, 1300 witnesses and nearly 2000 material objects. We heard the case for six weeks in a row.
Communalism and the court
With the deaths of 18 men, the community struck by the blasts felt wounded and angered. However, while discussing the issue of sentencing, the trial court permitted one of the accused to make his submissions, changing the course of the debate significantly.
“A citizen should have trust and confidence over the various institutions of the State. The member of Parliament and the member of the legislative assembly who are supposed to be secular deviated from the normal course. Muslims feel that they live in the open jail with so much insecurity and restriction. Therefore the life in jail for the past 10 years made no difference… The serial explosions at Coimbatore were only the culmination of the failure on the part of the agencies of the State, police department and judiciary,” the accused said.
This was a severe indictment of the pillars of our democracy. But this was his truth; he learned that there is no fairness in his life as a citizen of India.
In his book Constitutional Choices, Laurence Tribe says that to determine if a law unjustly discriminates against a group of people, it is necessary to recognise whether it is “part of a pattern that denies those subject to it a meaningful opportunity to realise their humanity”.
This is a reminder of all the years after independence when we have continued to deny to many groups this opportunity. We must change now, and the place to initiate change is in the halls of justice.
State organs exist in order to bring about equality: to mediate between unequals and to close the gap as far as possible. The judge has to remember that every citizen expects to be treated with dignity, fairness and equality. The citizen may be a witness, a spectator, a litigant or even the accused, but this right to equality and dignity is common to all. Here, the judge saw that the accused felt injured by a sense of isolation, supporting both the spirit and letter of the law. As the Xavier College case reads:
“The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. These noble ideas were enshrined in the constitution. The differential treatment of the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact.”
The story from the Ramayana of a toad hurt by Ram is also instructive in this context. When Ram notices the toad, he asks it why it did not complain of being injured. “If others cause injury I can complain to you seeking justice, but if you are the aggressor what is my recourse?” the toad asks.
This is not just a tale; it is heavy with meaning. If the state is the aggressor and fails to guard the right to equality, how can the citizen receive justice?
In his first Hamlyn Lecture in 1949 entitled Freedom under the Law, Lord Denning answered this question:
“No one can suppose that the executive will never be guilty of the sins that are common to all of us. Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. ”
One of the witnesses to the Coimbatore blasts stated that on that fateful night, after the explosions, the police arrested many young Muslim men. We saw young men photographed in rows of eight or nine. They were not photographed because they were found near the scene. Rather, this was done simply because they were Muslims. Seven decades have passed since the constitutional debates when Dr. Ambedkar said that minorities would vanish once discrimination ceased.
The submissions made by the accused about ten years ago tell us that the vanishing point has not reached
Nothing teaches us about our country’s social fabric as criminal cases, they tell us what arouses violence, they tell us about gender imbalance, they tell us that mostly only the poor and weak get caught, they tell us how communities are arranged in a geographical space – they are real eye-openers. This case was a revelation.
Court and the executive
While the appeals were being heard, several accused were released in exercise of powers under Article 161. We asked the counsel for the appellants to make his submissions on the propriety of this act. The public prosecutor said that the government had the greatest respect for the court and the appellants’ counsel also justified it as an act properly done. In Epuru Sudhakar vs. Govt of A.P. (2006), the Supreme Court criticised the release of prisoners by the state governments invoking the governor’s power of granting pardon pending adjudication of the cases. We quoted from Justice Kapadia’s opinion in the above case. “Exercise of Executive clemency is a matter of discretion and yet subject to certain standards…An undue exercise of this power is to be deplored…The power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, society as a whole and the precedent it sets for the future…” But we were just venting our frustration while the state presented us with a fait accompli. We realised that courts are sometimes helpless if the state just goes ahead with acts of political expediency or worse. The courts cannot always set a wrong right.
The question of the death penalty
Although this is a classic case in which the death penalty could easily have been awarded, the trial court did not award the death sentence to any of the accused. The Death Penalty India Report says:
“The quality of legal representation available to prisoners sentenced to death is an important parameter to evaluate the fairness of the administration of the death penalty in India. It is crucial to understand the nature of legal representation.”
The death sentence is awarded in the rarest of rare cases. How do we justify awarding the death penalty? We do not look at just the crime – we also look at the accused. Though the public prosecutor had pleaded to the trial court that this was the most fitting case for giving capital punishment, the trial court refused.
“There has been an element of loss of faith over the State upon certain sections of the Muslim community. Ultimately these sections have absolute faith over the laws of the Almighty and not upon the law of the land…Under such circumstances the deterrence theory fails,” the trial court judgement read.
None of the accused were granted bail during the trial and this deprived them of securing the best legal counsel and collecting all the relevant materials to support their case, the trial judge argued. Further, the documents were voluminous and the accused did not have access to the best legal advice. Long incarceration would also have a severe psychological impact on the accused, leading to internal dissension and groupism.
The trial judge said that the manner in which witnesses were examined and cross-examination was conducted had also caused prejudice. Only a few of the advocates who appeared for the accused had done their best to defend them. The accused had pleaded that the offence was a result of the sense of isolation they felt and the consequent loss of faith in the system.
Each of these reasons is an aspect of fair and equal access to justice; the protection of this right is undeniably the responsibility of every judge, especially when considering the question of capital punishment.
Equal justice and free legal aid
It is time the association of lawyers all over India decided that every lawyer will give at least 50 hours of pro bono work every year, and for senior counsel it will be more. This is what we owe to every citizen who comes to court, voluntarily or otherwise. No one should be deprived of life, liberty or property for want of good legal counsel.
The role of witnesses
When paying homage to the police officers who died in the 2008 terrorist attack in Mumbai, a now-retired senior officer wrote in an article that no such crime takes place without local support and the awareness of locals, urging the police to strengthen their effort in this regard. He stressed the need for multi-disciplinary cooperation and multi-pronged protection to avoid the recurrence of such incidents.
Members of civil society are very reluctant witnesses, though law obliges citizens to report crimes. One key reason is the lack of effective witness protection. In this scenario, it is a wonder that so many came forward to give evidence especially in the context of Coimbatore case. Without an effective witness protection scheme, it is very difficult to arrive at the truth in criminal cases.
Ultimately, at the end of the hearing it was clear that the violence involved in the Coimbatore blasts was completely futile. The deaths of Baiju and Seethalakshmi and the others would have gladdened the hearts of none. Little Abdul Rahman and his three young friends Mohammed Sunnath, Muhammed Subair and Shamsudeen, went in search of a cricket ball. It was not a ball they found, but death in the form of a bomb amidst the bushes in Bilal Estate.
What did any one achieve by their deaths, what was the purpose? Violence should not be returned with violence, though it is a tempting impulse.
“What the victims do does not change what happened. And the best thing about the remedy of forgiveness is that there are no side effects. And everybody can afford it,” a Holocaust victim was famously quoted as saying.
For me, this was not just a case. It was with a lot of misgivings that I accepted this assignment. But after a week, I told Justice S.J. Mukhopadhaya, who as acting chief justice of the Madras high court had urged me to hear the case, that handling the case was one of the most educative and enriching experiences of my life.
Through it, I received the opportunity to learn about the social fabric of India. Finally, it taught me that of all the institutions of a democracy, the court is perhaps the most crucial. The court must unfailingly reflect the constitutional aspirations of a nation.
Note: In December 2009, the Madras high court upheld the convictions of 18 people – 17 life terms and one 13-year term – in the Coimbatore blast case. The division bench of Justices Prabha Sridevan and M. Sathyanarayanan acquitted 22 people of all charges, ordering that they be set free immediately.
Adapted from the address delivered by Prabha Sridevan as part of the Diamond Jubilee celebrations to mark 60 years of the Kerala high court.