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BMW Case - A Massive Judicial Failure

Written by: Harsh Gagrani
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The BMW case is again in news, and yet again, for no good reason. On the evening of 30th May, two senior advocates- I.U. Khan, who was the Special Public Prosecutor in the BMW case and R.K. Anand defending the main accused Sanjeev Nanda, son of former Navy Chief, were shown by NDTV channel allegedly influencing the eyewitness Sunil Kulkarni. The video recording showed the defence lawyer and Sunil Kulkarni getting into a car where they talk of money and even of changing testimony. The videos also show a common meeting between the prosecution and the defence lawyer and Sunil Kulkarni where they were trying to persuade him to change his statement and were offering him Rs. 5 crores for the same.

The BMW case has been a significant eye-opener for the legal fraternity in India. It all started when seven people were hit by a black BMW car in Delhi on Jan 10, 1999. The initial testimonies and a 30-minute film recorded next morning led the police to conclude that hit-and-run was caused by three young drunk men. These three people were Siddhanth Gupta, Manik Kapoor and the alleged driver Sanjeev Nanda, who is the grandson of former Navy Chief Admiral S.M. Nanda and son of arms dealer Suresh Nanda. This case has now became a litmus test for the Indian Democracy's foundation principles that nobody is above law. But so far, the judicial system has failed this test as it has overlooked some quite obvious proofs and reasons. This argument can be strengthened by the following through following points:

1. Their were blood stains on the back tire of the BMW car. Stains on the steering wheel later matched to those on Sanjeev Nanda's shirt which clearly shows that at the time of the accident, Nanda was driving the car.

2. Another clear evidence was that an oil leak was tracked by an investigating officer from the sight of the accident to a house, about 1km away in Golf Links where a battered seven-series BMW was found.

3. A 30-mins video was recorded by the Delhi police just hours after the accident which showed the evidence which they were uncovering. However, this video was submitted as evidence only in 2003, for reasons unknown. Sanjeev Nanda's lawyers pointed out that the film was submitted four years after the accident took place and questioned its credibility and reliability.

4. By 2003, all except one eyewitnesses turned hostile. Further, the intentions of Sunil Kulkarni, the lone eyewitness who has not turned hostile were doubted by the Apex Court.

5. A sting operation conducted by NDTV along with Sunil Kulkarni exposed the advocates of both the sides trying to influence to change his testimony and circumvent the truth.

6. To further worsen the matters, Sunil Kulkarni did a turnaround and asked the channel not to air the sting operation tapes. However, he did not offer any coherent explanation for this. Even in the court he seemed somewhat ambiguous saying that he saw a black BMW but was not sure about Sanjeev Nanda occupying the driver's seat. He said that he heard someone calling the name "Sanj" but was not sure if he has heard the name Sanjeev. Rumors are there that he might be getting threats to speak in this way.

The above stated points can be found more or less in most of the big cases in India. In fact, these are rather the problems coupled with corruption have paralyzed the judicial system of our country. Hostile witnesses and changing testimonies show the level of corruption in the Indian judicial system. It is obvious to everyone in legal circles that fear or favor has been used to make a witness add or subtract from their original testimonies, but there is just no evidence to prove it. Our system does not have laws to punish hostile witnesses which results in them being manipulating the truth and contribute to the wrong person being convicted whereas the criminal walks on the streets in freedom. Even media cannot interfere much in the judicial system as the laws are over-protective for the judiciary or over-punitive for the media. In the recent past, the hidden cameras and the sting operations have played a major role in uncovering the hidden side of justice. Though the hidden cameras should be used only in the 'rarest of rare' cases, but this case was no less than it.

The questions which arise now are:
1. Can we afford the so called 'leading lawyers', who make manipulations in the legal proceedings to satisfy their personal interest?
2. Can we afford the so called 'witnesses' who change their statements and reverse the truth when their testimonies are the only hope for those seeking justice?
3. Can we afford a so called 'case' to extend up to eight long years (and not yet over) in a country with about 27 million pending cases and hundreds of cases pouring in every day?

The solutions to these problems are straight, though not simple. "The Bar Association has the power of canceling the license of erring advocates, but an in-house enquiry has to be dons first" noted a senior advocate K.K. Venugopal. But these enquiries generally stretch and even this enquiry is expected to stretch for years. The two advocates involved here are no ordinary men. They are influential, notoriously aggressive and famously successful. From former Prime Minister Narsimha Rao to former Union Minister HKL Bhagat to the tandoor killer Sushil Sharma, together or separately, they have been the helm of the biggest cases in the as two decades. R.K. Anand has been an MP and is still a primary member of Congress.

The enquiry should be conducted irrespective of these facts and the Supreme Court Bar Association (SCBA) should set an example for all the notorious 'leading advocates' of the country. Secondly, the laws and customs protecting the over-protected judiciary from the media should be removed. After all, the media seems to be working more in public interest than the judiciary. Thirdly, laws intended to punish the hostile witnesses should be enacted. They are in many ways responsible for delay in final verdicts and judicial corruption. Last, but certainly not the least, deadlines should be fixed for finishing off the cases and the judges should take initiatives to discover the truth before these deadlines, instead of maintaining his position of neutrality.

The Constitution of a country is governed by laws and not by men and women. However, this seems to be only is theory, as lately the judges and the lawyers have developed a practice of molding and folding the Constitution to suit their needs. The BMW case seems to be a 'glaring example' of such a practice. The present condition now demands instant action or else the time will not be far away when the people will lose their faith on the already dilapidating judiciary.

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