Reading an article by a respectable fellow writer got me thinking regarding the decision of Hon'ble Supreme Court to stay the execution of the convicts in Nirbhaya's case. While that is the subject, the issue is larger in as much as the idea that such a decision is an unjust one. I have often maintained that there is widespread misconception about why certain verdicts are passed by our judiciary albeit those misconceptions arise from justifiable grounds. Add to that the fuel of media speculation and sensationalism and what we get is a whole gamut of notions regarding our justice delivery system.
I will make myself very clear at the outset that I personally believe that there should be utmost speed in disposing the petitions of the convicts in Nirbhaya case considering the nature and gravity of the crime. The Delhi High Court has found all of them guilty and awarded them death sentences concluding that their crime falls in the 'rarest of rare' category as is required by our law for award of death penalty. Therefore this case needs to be decided as early as possible without any delay.
Now coming to the larger issue of allowing the stay, I shall suspend my prejudices and biases and my sentiments which is the same as millions of Indians and citizens of this country, which seethes with anger and abhorrence against the ghastly crimes committed against women and on those who committed them, and dispassionately consider the matter. To begin with I must convey that every Court, be it the most rudimentary or as high as the Supreme Court, has to maintain parity and fairness in hearing all sides which approach it. Now staying the execution of a sentence is not as final as it may seem. It only means that the Court has allowed the convicts to present their last arguments before executing their sentences. By all means, to my mind, this is fairness and parity. The immediate response which I can sense would be what about parity for victims. True. There is indeed parity for everyone, the accused, the victims, the society as whole in the decision to stay the execution. I'll explain it.
The perpetrators of Nirbhaya gangrape have been found guilty by successive Courts and in all likelihood they would be so found by the Supreme Court. But how can the same be concluded unless Supreme Court reaches its own conclusions upon hearing arguments advanced before it. I mean isn’t that the fundamental principle of our country’s democratic process. There is a very famous maxim 'audi alteram partem' which means that no one shall be condemned without a hearing. I agree sometimes it may not seem proper. But the biggest redeeming characteristic about a just and democratic country is that its judiciary is above popular influences. While every intuition of a Hon'ble Judge may be commanding him to send these men to gallows, but true to his oath he must serve the rule of law and allow every person howsoever infamous or hated, the valuable rights that our Constitution grants him. The right of a fair hearing and all facilities to prove his innocence or disprove his guilt. We are the country that allowed Kasab every right that is there for an accused. While I agree that my blood boils, upon knowledge of the fact that he lived for so long after his abominable acts, yet I cannot let my passions dictate my judgment in the chair of a Court. I am confident all persons of experience and understanding will surely appreciate this fact.
It is difficult and even not wise to decide what happens in a Courtroom based on what we read in newspapers or see in TV. Most of the times I have seen what appears as very obvious turns out to be stunningly fallacious after peeling a few layers of truth in Courtrooms. I have seen admissions of false prosecutions being elicited from capricious self proclaimed victims even in open and shut cases. I speak from experience and therefore wish to convey that it is for such risks that law allows great deal of opportunity to accused persons to demolish the case of the prosecution. The burden of proving the guilt is therefore always on the person who makes an allegation and not vice versa. This is the same judiciary that stood as an unshakeable sentinel of our fundamental rights when the power mongering executive attempted to usurp them. Ours is the judiciary which gave us Polluter Pays principle as one of the vanguard principles of environment protection while not thwarting development. Ours is the judiciary which gave us Maneka Gandhi decision, Keshavananda Bharati judgment declaring that our fundamental rights cannot be taken away or altered in any manner by the Parliament in the dark days of emergency. Its innovation has been amply evidenced in its judgments to protect our rights from arbitrary invasion of power when it has propounded several doctrines like right to livelihood, right to privacy, right to pollution free environment, right against arbitrary arrest and so on so forth. In all fairness, we have to be very careful before writing off the judiciary. I know that our laws are heavily inclined in favour of the accused rather than the victim. But trust me, there are quite a substantial number of laws too which are meant to redress great injuries suffered by victims. The only reason why the law allows sufficient leverage for accused persons in disproving their guilt or proving their innocence is because history, full of ruthless instances of abuse of power, has taught us to proceed with presumption that "every person is innocent till his guilt is proven to the hilt".
There is another aspect of adjudication which is often raised with concern. It is the alleged inability of Courts to fairly or sufficiently punish the perpetrators of horrific crimes. I agree that Courts should be innovative and must apply their minds to cases and punishment must fit the crime. But what is most important to understand here is that Courts enjoy no room for innovative sentencing against criminals and that they must punish as much as law allows them to. I''ll elucidate by an example. Hit and run cases which result in death of the victim are ordinarily tried under Section 304 A of IPC. Now as unrealistic as it may sound. The punishment prescribed for the offender is only 2 years and it is a bailable offence. It is our law that when it comes to criminal cases and application of penal laws, the Judges do not enjoy the liberty of twisting or bending the interpretation to suit the expectations of a victim. This is because the settled law of our land is that since successful proof of crime would end in deprivation of life and liberty of a person (the accused), the Judges must follow the law exactly as it is. There remains no room for innovative interpretation as there is perhaps in case of non criminal cases. Hence where the victim of a hit and run case has died the offender ordinarily is liable for maximum 2 years of punishment. Courts cannot increase the punishment on their own. In this view of the matter isn't the ire against the Courts for insufficient punishment misdirected ? It is the Parliament that can amend the law and suit it upto public expectations. The Courts cannot do it. This was the handicap of the Court which tried the juvenile offender in the Nirbhaya case. Which is why, he being charged as the most barbaric of the gang that night, could only be sentenced for a period of 3 years. As that was the maximum prescribed punishment.
I share my countrymen's anguish and anger as a citizen upon what is happening to perpetrators of crimes on women. My heart bleeds too. But I dissociate myself from pervasive inclination to turn over the system on its head and adopt street justice. But I would always prefer rule of law to prevail over populist sentiments even in face of overwhelming temptations to discard it. If our cherished democratic ideals were to survive, then as a nation we must endure our collective tendencies to disregard rule of law and sacred principles that form its bedrock. Now, at times more often than not, circumstances would have us lose faith in the structures of democracy, where they would become the very reason of impatience and frustration. This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. We, for the hopes of our land's founding fathers and for sake of our future generations, must preserve our faith and belief in those structures. We as a nation must withstand the tremendous disenchantment that we are likely to suffer for the way democracy is abused. The idea is to preserve it and not give it away in face of such bitterness. We must survive every tendency towards degenerating into an anarchy. That is the only way the right idea of justice shall prevail in the end.