In India, the relentless pursuit of truth is not yet a prescribed standard for criminal trials — but the Supreme Court judgment handed down in the Best Bakery Case only a few days ago is a gratifying shot in the arm. Another encouraging sign is the suo motu action taken by a division bench of the Delhi High Court, almost immediately after the verdict in the Jessica Lall case: it directed the city police to submit all the investigatory details, as well as the reasons which caused the failure of the case in the trial court. Incidentally, on Monday, the Delhi Police challenged the acquittal of the nine accused in the Delhi High Court. All this indicates that our courts are receptive to public opinion, that they react to rational — though angry — responses. This is a healthy sign for a criminal justice system which everyone deplores, and almost everyone disowns.

Much is wrong with the criminal justice system — to say that there is vast scope for improvement is an understatement. But I would submit that even with a flawless investigation, a competent team of prosecutors, and a robust trial judge, if people who witness a murder do not co-operate, there is little hope of justice. Where a killing takes place in full view of a hundred persons and no one is willing to identify the assailants (or having identified them, are not willing to say so on oath), we must fault ourselves at the falling standards of spontaneous public outrage, and the even more deplorable standards of current public morality.

Of course it is the court’s business to find out the truth, but it is equally the business of eye-witnesses to a murder to come forward and testify — and for the government of the day to ensure full protection to such witnesses. The shocking part of the Jessica Lall case was that witnesses who were educated, who knew the ways of society and of life, either refused to testify or went back on statements made earlier to the police which were contemporaneous but unsworn. But it is most disquieting that neither the prime minister nor the home minister have given public assurance (and taken steps to make the assurance credible), that witnesses to heinous crimes who voluntarily give their statements would be securely protected from molestation, harassment and attack. This is the top priority of the moment. Only the prime minister and home minister can save another Jessica Lall-like calamity, with categorical assurances backed by action. They must also instruct chief ministers to give the same assurances in the states. Of course, laws can come later: but they too must follow.

The foundation for every criminal case, to be successfully prosecuted, has to be laid in the trial court itself, because after an acquittal in the trial court, the chances of a reversal and a conviction in a higher court are rare. That is why the Malimath Committee had recommended that the investigation wing should be totally separated from the law-and-order wing — the police with the danda should be left to deal with law and order, and police personnel able to use their heads, aided with new scientific techniques, should be left to deal with investigation into serious crimes.

Three years have passed and the recommendations of this committee have not yet been translated into law. Why not? The public is entitled to know. There is another problem. Despite specific provisions in the Criminal Procedure Code, rarely does the trial magistrate or the sessions judge in practice ever summon on his own a material witness in a criminal case. He or she leaves it to the prosecution and, if the prosecution fails to call essential witnesses, the accused is acquitted. The judge never descends into the dust of conflict to sort things out, he only decides which lawyer has performed better. And in high profile cases, the accused — invariably rich and influential — engages a senior lawyer, who always performs better: than the state public prosecutor.

For more years than I can imagine, we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also the more costly), will invariably win! We have perfected in India a poor substitute for what Dean Roscoe Pound of the US derisively called the “sporting theory of justice”: the basic premise of which is: “that truth will prevail in the clash of zealous adversaries”. In the clash between the impersonal, often uncaring, state (it is the state only that prosecutes), and some well-placed person who is arraigned as the accused, truth rarely prevails; more often it is a casualty.

In this new millennium we must leave behind as a relic of the past this “sporting theory of justice” — and we must look forward to more pro-active trial court judges. Hence the importance of the recommendation in the Malimath Committee Report of March 2003, that the quest for truth should be made a fundamental duty of all criminal courts in India. It is a point most effectively made in that recent judgment of our Supreme Court in the Best Bakery Case.

The writer is an eminent jurist