A new, but an unhealthy, precedent has been created with the Kerala High Court on the plea of the Italian government and the accused ailors, accepting the out-of-court settlement between the bereaved families of two Indian fishermen who were killed by the Italian sailors on an Italian commercial ship in Indian sea waters. According to the settlement arrived at each of the family of the two deceased Indian men were to be given Rs. One crore each and the bereaved families were not to pursue the criminal case of murder registered against the Italian sailors. http://www.sunday-guardian.com/news/kerala-confronts-delhi-over-italy-marines
Centre & State on collision course
Without going into the intricacies of the international covenants and law, one thing is crystal clear: the Union government and the Kerala government are not on the same wavelength in this case, perhaps for the first time that the Centre and a State are on collision course with each other on a case involving interests of the nation. The two Italian sailors have been charged of murder under the Indian Penal Code. As per law, there cannot be any out-of-court settlement in a case of murder. There cannot be a point of compromise on the crime. Whether the settlement will stand the test of law remains to be seen, yet it is going to set a bad, unhealthy precedent in the Indian jurisprudence. The settlement is between the Italian government (and indirectly, with the accused Italian sailors) not to pursue the matter in the court of law in view of the consideration of Rs. One crore each offered to the bereaved families. It virtually amounts to bribing the witnesses and the sufferers to shut their mouth against the accused. Can the courts silently acquiesce into accepting this position? Such a precedent would open floodgates of similar offers to bribe the witnesses to get an acquittal with honour in any heinous crime, like murder, dacoity, terrorist crimes, rape and what not. In that case we shall be allowing the law to be subverted at a price and legalising this act which amounts to nothing less than corruption. We shall then be putting our system of justice at the mercy of hefty purses of the rich. In such a situation our law shall turn the crime of murder, rape, dacoity, terrorist killings, even cases of corruption under our anti-corruption law as acts of piety at the hands of those who can loosen their purse strings to purchase witnesses and gagging eye witnesses to a crime. Then it will not be the courts which will interpret law and dispense justice but the money that will deliver the judgement.
Purse to dispense justice
Inversely, it will also amount to money directing the course of justice – turning any poor person guilty and a rich person innocent. If the Indian courts were to allow the government of Italy and its two sailors the discretion to enter into an out-of-court settlement to get out of the gallows of our law, can the courts discriminate against the likes of Afzal Guru, Kasab and others by disallowing the same luxury to them?
The out-of-court settlement struck by the eminent lawyer Abhishek Manu Singhvi also raises similar questions. In the aftermath of the alleged DVD released by his driver, it was Singhvi who filed a criminal case against the former. Singhvi was as quick to file a criminal case against his driver as he was in a haste to arrive at an out-of-court settlement with him. It was Singhvi who had alleged that the CD had been doctored and morphed. In the out-of-court compromise the driver came out substantiating the allegation and stated that he had morphed and doctored the CD. This statement amounts to a confession by the driver to having committed a case of cheating the public through an act of forgery and tinkering with the evidence (against Singhvi). In this way, inversely, our system of law struck another compromise: to turn blind to a crime, if any, having been committed by Singhvi and his driver. Both cannot get away with the crime they committed through out-of-court settlement. The CD as displayed by the social media has not so far been proved to be genuine or doctored/morphed in any independent/impartial inquiry or through the expert opinion of a forensic expert. Neither has any court given its verdict in the matter. The CD clearly indicates that the alleged crime having been committed in the public premises of the Supreme Court chamber. Even if claimed to be through mutual consent by willing adults, yet the audio indicated a dialogue which showed that the consent had been obtained through inducement of a promise of a professional job. Until and unless a court gives its valuable verdict, the CD/DVD will continue to be acceptedas true at its face value. The driver cannot exercise the absolute authority at will to declare at one time that the CD is genuine and at other to claim it having been morphed or doctored. Similarly, however eminent a lawyer Singhvi may be, he cannot usurp the final authority to declare it morphed/doctored one. The authority lies only with a court of law. By presenting an out-of-court settlement Singhvi and his driver have only stood in the way of justice and the truth coming out ultimately.