Friday, 18 July 2014

The Idea Of Justice

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.


  1. I echo your point Anupam. People holding positions of such great honor and respect have additional responsibility to be JUST. They have to be fair. I also agree with the point that stay is to give them time and opportunity to prove themselves failing which they would certainly get punished.
    Capital Punishment in India is if the Honorable Court announces it as a rarest of the rare crime. We know Nirbhaya case accused are booked under sections
    IPC 366 - Kidnapping, abducting or inducing woman to compel her mar­riage.
    IPC 376 (2) - commits gang rape
    IPC 506 - Punishment for criminal intimidation
    IPC 302 - Murder
    While the crime no doubt was henious but Rape is not a rarest of the rare crime. It is a common crime in our country. So what makes it rarest of the rare? The manner in which the gang rape happened? Or she not surviving later?
    If the manner in which it happend makes it rarest of rare then there are other brutal rape cases such as Chhabirani case of Odisha or 2013 Kamduni gang rape and murder case. In Chhabirani case the Apex body, our Honorable Supreme Court has pronounced rigourous imprisonment and not capital punishment, that too after 22 years.
    My only point is that if Nirbhaya case is rarest of rare then every rape and murder case should be.

    1. I echo your concern too Shweta. Yes, personally speaking, if I were in Judges chair, rape and murder would ordinarily invite a punishment of death from my pen. The Supreme Court has propounded rarest of rare case in two guiding factors, 1. the aggravating factors and 2. the mitigating factors..i ll post it in details..i ll dedicate a separate article for you shweta...your question is thought provoking and deserves distinct discussion...keep reading ...

      thank you..

  2. Idea of justice! Sorry to say, we don't have much sense of justice; we've only sense of punishment. As I see, punishment cannot be the justice. I believe that justice must have something to do with welfare of victim. But, in the prevailing judicial system, we very much focus on punishing the culprit and neglect the welfare of victim. We pay concern on rehabilitation of culprits. The whole judicial system is based on the idea of culprits' realization of their crime and their transformation into a good being. And, in the rare of the rarest case, when there is no hope left for transformation, we have capital punishment.

    1. I so agree with you Ravish. That justice involves as much as adequately taking care of victim expectations as it is of culprit punishment. Unfortunately what happens is that media highlights only the punishment part a lot and the steps taken for the welfare of the victim is not so publicized for reasons best know to those who do so. Believe me that more often than not every judgment of punishment carries alongwith it a directive of victim compensation / rehabilitation which would become evident upon actually reading every judgment.

      Thanks for reading and sharing your valuable views Ravish.

  3. What could be the form of compensation/rehabilitation for a rape victim? Would that be justice for the victim? Leave the media TRP aside for a while, what are the provisions in IPC/CRPC for rape victim compensation/rehabilitation? I don't think Anupam that there is any. You can better say on this aspect being a lawyer.

    1. Dear Ravish have faith. There are provisions for victim compensation and rehabilitation in our law. It will be undermining the agony of a rape victim if we could determine a compensation for her in a blog discussion. No one can say the exact extent of trauma and perhaps lifelong pain that the victim is likely to suffer. Having said that, law must always answer societies needs in real and quantifiable terms. As much as difficult it is to conclude a perfect compensation for a rape victim, the law has provided the following in general terms.

      1. Section 357 (1) of Criminal Procedure Code (Cr.P.C.) says that “ when a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment order the whole or any part of the fine recovered to be applied-
      (a) In defraying the expenses properly incurred in the prosecution,
      (b) In the payment to any person of compensation for any loss or injury caused by the offence, ........
      2. Section 357 (3) of Cr.P.C. says that “When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment order the accused person to pay, compensation to the person who has suffered any loss or injury reason of the act for which the accused person has been held guilty. It is upto the respective Courts to apply their minds to decide what kind of compensation would be the best possible redressal for the victim.
      3. Not only this, but also the victim can appeal against the first Court’s verdict if no compensation is given or that compensation awarded is not adequate.
      4. Section 357 A of Cr.P.C (which is a relatively newly added provision) provides about creating victim compensation fund for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who, require rehabilitation. In this regard the District Legal Service Authority has been given responsibility to decide the quantum of compensation to be awarded. The section further provides about awarding compensation irrespective of acquittal or discharge of accused and even in such cases where the offender is not traced or identified but the victim is identified. The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost under this section.

      The Hon’ble Supreme Court has dealt with this issue time and again with a firm hand as the highest judicial body of our country. It has said “ that victims in criminal cases are often not awarded compensation for the loss and damage suffered by them despite clear provision of law for this and said that all judges dealing with criminal cases be made aware about it. Section 357 Criminal Procedure Code (CrPC) confers a duty on the Court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case. The bench said victims should not be "forgotten" by courts while deciding criminal cases and it is court's obligation to apply mind in granting compensation in each case since the provision of Section 356 Cr.P.C. confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system.”
      So my friend, please be assured that there do exist provisions for victim compensation and rehabilitation in our law. A sensitive and humanistic approach in applying the said provision may just save the day for the victims.

      And my friend I am not a lawyer, just consider me a student of law.

    2. Thanks Anupam for the elaborate explanation with relevant sections of CrPC. I fully agree with you that evaluation of compensation amount for rape victims at this platform would be like sprinkling salts on their open wounds. I'd only like to say that IMO compensation is not justice but a lollypop of guile.

  4. It's been enlightening to read the blog and the discussions. The ideal would be where the perpetrator of the crime is allowed to reform himself and the victim(s) get just retribution. But in a country like India which terribly overpopulated this ideal will remain a dream. That's why some judgments have to be harsh. I really don't think death sentence is totally out of place. Take the Nirbhaya case itself as an example. I can't find much sense in the system being lenient towards the perpetrators of such a heinous crime.

    1. I agree Tomichan. Thanks for reading and sharing your views.

  5. Brilliant piece. I love the way you have dissociated yourself from the emotional facts of the case and allowed an unbiased unprejudiced view of the law and its unfortunate limitations as they exist right now. I also hope that the people in Parliament hear the common man for whom they have occupied their chairs and make amends..

    1. That is correct Siddharth. The lawmakers would have to play their roles here.

      Thanks for reading Siddharth.