CITYZEN. Where a million false cases flourish

For those following the Delhi elections, it is difficult to miss an interesting contradiction in Arvind Kejriwal’s campaign. There is little doubt that combating corruption forms a major part of his agenda, and yet he often flaunts the number of cases against him.

Such a contradiction would have derailed politicians in most cities of the world. If it does not do so in India, it is because of the number of people who are willing to believe that false cases are indeed a part of the Indian reality.

And while there may be much breast-beating about this phenomenon, there is little attention paid to why this is so.

We have to go into history to find the causes of this contradiction. While the details would vary from city to city, tracing the emergence of scepticism about the legal system in one city does give us an insight into the process.

When Bengaluru came under British rule in 1799, it was ruled by a very different jurisprudence. The city was divided into relatively autonomous areas, with each area dominated by a particular caste or community. Judicial proceedings were held in public by the elders of a caste or community.

Anyone accused of a crime had to persuade the panchayat that he was not guilty, and the panchayat had to give its ruling in a way that the public at large thought to be fair.

The emphasis on persuasion had its effects on the way the law was enforced. A person was taken to be guilty as long as the panchayat believed him to be so and the public at large thought the panchayat was right. There was no question of following the British principle of waiting for evidence beyond all reasonable doubt. Instead, it was the norm for the accused to be considered guilty until he could persuade the panchayat that was not the case.

This sharp contradiction between British jurisprudence and the one followed in Bengaluru (and indeed much of India) was noted by Mark Wilks in 1805.

Mark Cubbon was aware of this contradiction when he introduced British jurisprudence in Bengaluru in 1834. But he was so convinced of the superiority of British jurisprudence that he believed it was only a matter of time before the norms of the panchayat disappeared.

In reality, the panchayat system may have been pushed to the background, but its norms remained. Witnesses believed their evidence had to be persuasive, even if that meant deviating from the truth. Cubbon was soon complaining that perjury was so widespread that not only was falsehood passed off as truth, but the truth could also be dismissed as false.

It was not difficult for the powerful to make use of such a system to harass the weak. As false complaints began to grow, so did the number of cases.

And with courts waiting for irrefutable proof, the cases were not completed soon either. By 1838, Cubbon noted that the courts were flooded with more cases than they could handle. And this is a complaint that has been repeated by numerous others over the next 177 years.

With little serious attention being paid to this central weakness the system has worked around it, often throwing up consequences that hit at the very spread of legality in India. The police try to cut down the number of cases by advocating settlements between parties. This heavily weighs the outcome in terms of those who can bear the costs of the case.

This imbalance may be acceptable in civil cases, but it can also be used to lodge false complaints as a way of forcing one of the parties to accept patently unfair terms.

The widespread potential for false complaints leads to police cases losing their credibility in the eyes of the public. Even as police cases lead to righteous anger against those we do not like, cases against those we do like can be dismissed as being motivated.

The perceived weakness of the legal system encourages a fall back on more traditional systems. This is true not just of the Khaap and other traditional panchayats . There is also a tendency for more modern institutions to play the role of the traditional judiciary.

Sections of the media have taken on a role not very different from that of the traditional judiciary. Relying entirely on persuasion with minimal evidence they play the role of the traditional panchayat of offering judgement on someone they accuse. And the public decide whether they support one media judge or the other.

A judiciary weighed down by cases (including some that are patently false), a police force under multiple pressures, and vested interests well-trained to make use of a less than perfect system, provide a mix that is destroying the functioning of Indian cities.

The writer is a professor at the School of Social Science, National Institute of Advanced Studies, Bengaluru