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Introduction
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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BMW
Case- A Massive Judicial Failure
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The
author can be reached at: harshgagrani@legalserviceindia.com /
