Does Crime Heed Age ?

      The perceived inadequacy in the sentencing of the delinquent juvenile in the Nirbhaya case has provoked debates on the strength of juvenile laws of our country. There is pervasive unrest and non reconciliation with the fact that the most brutal perpetrator of the abhorrent offence was sentenced for a period of only three years. First things first. The ire of laymen in the present scenario need not be misdirected towards the Juvenile Justice Board presided over by the Principal Judicial Magistrate, which handed down the sentence to the guilty. This is for the obvious reason that the Board had no room to interpret the sentencing afforded by the Juvenile Justice (Care and Protection of Children) Act (JJ Act) in any more suitable manner than it has now. In fact the Board has handed down the maximum sentence that the law could afford under the circumstances.  

          I read a reported tweet of Ms. Kiran Bedi stating "Courts need not be mechanical robots. We make laws and then interpret them not to be enslaved but do justice to victims too". While the rhetoric of the statement is by and large not incorrect, it is delusional of one to expect that Courts will enhance the sentencing of any convict beyond what the law enables it to award. This is because the law of our land mandates that penal (criminal) laws are to be interpreted exactly as they are codified since they determine someone's liberty or the taking away of it. The Courts cannot invent or manoeuvre sentencing for a proven criminal to suit popular expectations. It is however another thing that the law itself may be inadequate to dole out an appropriate response of the State against a shocking crime as the one in the present case. In the Nirbhaya case, the juvenile was charged by the investigators, to have been the most barbaric in the gang while committing the heinous crime. It is yet to be ascertained from the Board’s order as to what extent his barbarism has been established as charged. Be that as it may, once the accused has been found guilty, what has added insult to injury is the fact that he was only a few months younger than being eighteen years old, for which the law enabled him to be treated as a juvenile. The circumstances of the 'Nirbhaya' case force one to wonder whether the JJ Act must come to the rescue of such a person who is capable of partaking in a brutal gang rape exhibiting actions of the most diabolic, inhuman and ghastly order. 

             This is where I have a suggestion to make. The Parliament need not completely turn the JJ Act on its head. What it can do is, keeping in mind situations where the accused displays sufficient maturity of action at par with adults, make room in the law for Courts to treat the actions of a juvenile as ones deserving consideration like those of adults. It is well known how the Hon'ble Supreme Court has passed a series of rulings to determine the broad and near exhaustive principles for considering as to whether a death sentence is to be awarded in any particular case. The Legislature of our country must take a leaf from that book and introduce appropriate provision in the JJ Act which would make it possible for Courts to delineate between cases where a juvenile's actions smack of an immature display of choices whilst committing ordinary offences and cases where except for the mere fact that the accused is days away from exceeding his juvenility, there is nothing ordinary about his alleged actions. In other words the law must enable adjudicators to deal differently with juveniles accused of ordinary offences and those accused of heinous crimes. Once such a provision is in place the Courts will have the handle to deal with cases like that of the juvenile in the Nirbhaya case, in an appropriate manner. The Legislature could either enable the Courts to treat the case of the latter category as per the stringency of IPC or the particular provision could also prescribe higher punishment in the JJ Act itself. 

But the discussion would be incomplete without restating of the observations of the Hon'ble Supreme Court in the matter as to whether the in case of heinous crimes like murder and rape etc., the juveniles should be tried under normal laws. The Court observed inter alia that :

“If what has come out from the reports of the Crime Records Bureau is true, then the number of crimes committed by juveniles comes to about 2% of the country’s crime rate "

“In recent years, there has been a spurt in criminal activities by adults, but not so by juveniles....In the absence of any proper data, it would not be wise on our part to deviate from the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, which represent the collective wisdom of Parliament”

While admitting that there could be exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, the Court said,

“but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.”

        In all fairness I must admit that while the observations of the Hon'ble Apex Court are true to the vision and the object of the JJ Act when read with the statistics quoted by it, it would be fitting to the need of our times that the Legislature took care of the expectations of the victim and his / her family from our judicial process while considering the adequacy of the JJ Act. 

Divested In Democracy

It is often asked that who will guard the guardians. This question reminds of the Latin phrase 'Quis custodiet ipso custodies ? ' penned by the Roman poet, Juvenal. The saying induces one to dwell on the issue as to in whom the ultimate powers should vest. Democracies around the world try to resolve the dilemma by separating powers between various organs that are responsible for governance and administration. The idea is to never give ultimate power to any one group, but to let the interests of each limb of the State collide and conflict with that of the others. The point of it being that absolute power shall not rest in any authority. In that way each bloc will find it in its interest to check and impede the excesses of others, thereby constantly and perpetually inhibiting it from corrupting itself.

 Perhaps born out of the fear of the hackneyed saying "Power corrupts. Absolute power corrupts absolutely", separation of powers between various organs of the State ensures that each is the sentinel against the corrupt tendencies of the other. Man's ingenuity has led him to overcome every obstacle before fulfillment of his aspirations. It has led him to devise schemes to circumvent the restraint sought to be induced by separation of powers. Organs are hands in gloves to look away from each other's foibles. So instead of acting as custodian of the each other’s virtues, agencies of the State obligated to implement laws, have done deals to remain oblivious to the wrongs committed by their counterparts in return for having their own corruption overlooked, thereby ensuring that the law remains a dead letter in thick books.

By and large, however, the system of separation of powers is a befitting recourse for the soundness of any democracy. Notwithstanding the outcomes presently afflicting the administration of the nation, this principle should never be given up, if we intend to preserve the ideals of our democratic Constitution.

WHEN LAWYERS DON’T ARGUE

"I would not call it an opportunity (to be an amicus in Kasab's case). I think it was an honour given to me…I took it as a sacred duty and I performed it to the best of my ability.”

-          Raju Ramachandran, Senior Advocate, Supreme Court of India, on being appointed as amicus curiae to defend Ajmal Kasab in Apex Court.

 

            Is it proper for any lawyer to refuse to defend any person who is either unpopular, or whom everyone believes to be guilty or whom he himself believes to be guilty? Such is the nature of this debate that it has lived with us since the times of Shakespeare. This question surfaces every time there is either a crime which is so heinous that even lawyers who are duty bound to stand between the accused and the State deny to do so or when the community of lawyers resolve to not represent a particular accused by reason of prejudice or past animosity or because of similar causes. The question is considered more often than not from a moralistic point of view rather than from a legal angle. There is nothing wrong per se in being moralistic in the legal profession, in fact, the right blend of morality and law is capable of doing wonders in administration of justice but the problem begins when the morality is misplaced. And on the basis of such misplaced morality one decides to disregard golden principles of the legal profession.    

             In the present context, let us recall the trial of Thomas Paine, the revolutionary writer of France, who had been charged with seditious libel after the publication of the second part of his work ‘Rights of Man’, and against whom almost the entire community of men had turned. Paine was accused of being a criminal and a terrorist, his offense being the publication of the said book. His earlier writings had been ignored by the government, but his impugned works were perceived as maliciously and wickedly intended to incite violence toward the government. Charges were brought and a criminal action was instituted. No lawyer came forward to represent his defense since it was considered sacrilege and treason to defend Paine in Court and the lawyer choosing to stand up for Paine was sure to be stigmatized and ostracized. Under such inimical circumstances only one fearless attorney stepped forward and he was promptly warned by his most important client that he would lose him if he continued the representation of Paine in Court. The lawyer categorically indicated his intent to proceed and as expected he was fired by that client of his. The lawyer who stepped forward to defend Paine was none other than the great Thomas Erskine, eventual Lord Chancellor of Great Britain. Erskine's decision to defend Paine cost him his position as attorney-general to the Prince of Wales, to which he had been appointed in 1786. Men who criticized Paine also condemned Lord Erskine and called him a traitor. Outraging rumours and writings were published against Erskine. But he never budged. Any discussion on the topic at hand would therefore be incomplete without reminding ourselves of the very famous speech of Lord Erskine rendered by him during the trial of Paine. Erskine's speech is also remembered for his reflection on the duty of advocates to take up even unpopular cases. He spoke thus :

            “My name and character have been the topic of injurious reflection and for what? Only for not having shrunk from discharge of a duty which no personal advantage recommended, and which a thousand difficulties repent. But gentlemen (of the jury) I’ve no complain to make either against the printers of these libels nor even against their authors. The greater part of them ….may have believed that they were serving their country by rendering me the object of it’s suspicion and contempt and if there have been amongst them others, who are mixed in it from personal malice and unkindness, I thank God that I can forgive them also.

Little indeed they know me who thought that such calumnies could influence my conduct. I will forever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end.  

If the advocate refuses to defend from what he may think of the charge or the defense, he assumes the character of the Judge, nay he assumes it before the hour of judgment and in proportion to the risk, rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all presumptions and which commands the very Judge to be his counsel."

A society can be called civilised only when it offers, even for the most barbaric criminal, a fair chance to defend himself. A lawyer must partake in the process of such a person’s defense notwithstanding his personal reservations regarding the man. Only then would he have fulfilled his true role as a lawyer. This is what eminent Senior Counsel Raju Ramachandran indicated when he said that he considered it an honour to defend Ajmal Kasab in the Supreme Court long after the entire country had declared him guilty. Guilty he was without a shred of doubt. Nevertheless he was entitled to his day in Court. That is the rule of law on which the founding fathers of our Constitution rested the fate of our great nation. There was pervasive cynicism against our judicial process, in the minds of our own countrymen, when the very man they saw to have killed hundreds of their fellow citizens, using one after another legal provision to stall the proceedings. He exhausted all forums available at his disposal and was ultimately found guilty by the Supreme Court and executed. Our judicial process thus honourably withstood the test of impatience and suspicion of several in the Kasab’s case to come out clean and effective in the end. This would not have been possible if lawyers would not have represented Kasab at various stages, right from the stage of trial to his appeal in the Apex Court. 

            Problem arises when Bar Associations pass resolutions against representation of certain accused persons. It has happened in the Delhi ‘Nirbhaya’ gangrape case, in Ajmal Kasab’s case and several other instances when the concerned Bar Association has resolved to not represent a particular accused in Court. Imposition of such decree on one and all prevents even the right minded advocates from pursuing their profession in proper spirit. One can understand that most of the times it is the terrible nature of crime which deters advocates, who are after all human beings, from defending the alleged perpetrator of such ghastly offences. But the point that seems to be overlooked is that until and unless the accused is not represented in Court, the judicial process cannot begin and consequently the guilt cannot be determined and therefore the sentencing will be mired in delays and laches. That being one persuasion, the other comes from the Hon’ble Supreme Court itself, which has categorically ordered (dtd. 30.07.2010) in the case of Mohd. Shuaib and Ors. Vs. Bar Council Of India & Ors. that

If any State Bar Council receives information/complaint that any advocate is being prevented by an advocate or advocates or any Bar Association from appearing and/or representing any accused, the Chairman of the State Bar Council and/or any member so empowered by the State Bar Council shall forthwith issue directions to the concerned advocate, advocates or Bar Association to cease and desist from such action.

The Courts are also under a duty to ensure that the accused is provided legal representation right from the moment he is produced before them. The Courts should ensure that the accused is provided the services of a lawyer through all stages of the case. Therefore if no one comes forward to represent the accused the Court should immediately appoint a State Defence Counsel / Legal Aid Counsel to represent the accused in Court.

And so far as lawyer's themselves coming forward to take up unpopular cases is concerned, hereinbelow is reproduced Lord Erskine’s immortal words in the Indian context

Let the learned Indian lawyers forever, at all hazards, assert the dignity, independence, and integrity of the Indian Bar, without which impartial justice, the most valuable part of the Indian constitution, can have no existence

DOCTRINE OF POSTPONEMENT – BALANCING RIGHT TO FAIR TRIAL OF ACCUSED & RIGHT TO FREEDOM OF SPEECH & EXPRESSION OF MEDIA

“A defendant on trial for a specific crime is entitled to his day in court, not in a stadium or a city or

nationwide arena.” -          Thomas Campbell Clark (United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of  the United States from 1949 to 1967)

While upholding the death sentence of Ajmal Kasab, the Hon’ble Supreme Court came down heavily on the electronic media and made a scathing criticism of its reckless coverage of the 26^th November terror attack on Mumbai and observed that "the coverage helped the assailants counter security movements as their positions were being reported live. The operational movements were being watched by the collaborators across the border on TV screens and being communicated to the terrorists.” Media overreach is a daily affair these days, especially in under trial cases. Accused persons standing trial or who are likely to stand their trial in Courts, are being treated and tossed around like villains on prime time television debates much prior to the hearing of their cases.  Television channels indulge in deliberating, discussing and garnering speculative opinion regarding the facts and fate of under trial cases. The peril of prejudice born out of such unwarranted barrage of speculations and opinions about sub judice matters never appears to be considered by the media while dealing with such subjects. What the media seems to be unmindful of is the fact that excessive prejudicial publicity leading to usurpation of functions of the Court, not only interferes with administration of justice which is sought to be protected under Article 19(2), it also prejudices or interferes with a particular legal proceeding.

One specific area where the media of our country urgently needs to focus is that of achieving a correct poise while dealing with sub judice matters without surrendering journalistic ideals. The Apex Court has declared that “A trial by press, electronic media or public agitation is the very antithesis of rule of law”. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent their encroachment upon civil rights. Therefore any prevention and / or regulation must necessarily come from the outside. Amidst such circumstances, the Supreme Court delivered a landmark verdict on 11.9.2012 in the case of Sahara India Real Estate & Ors Vs Securities & Exchange Board Of India & Anr.,wherein it expounded what is known as the doctrine of postponement. In this case the Court was seized with the adjudication of a dispute between the Sahara Group and market regulator SEBI (Securities Exchange Board of India) which had arisen due to alleged leakage of sensitive confidential communication inter parties and their consequential publication by the media. As a preventive measure against publications tending to prejudice the targets of such publication, the Apex Court propounded the ‘doctrine of postponement’ the gist of which it stated as thus:

“anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the …. principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework.”

 The Supreme Court has categorically remarked that orders of postponement should not disturb the content of the publication and such orders would only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period. The Hon’ble Court elucidated the requirement of the doctrine by observing that

‘when there is no other practical means that is capable of avoiding the real and substantial risk of prejudice to the connected trials, postponement orders safeguards the fairness of such trials.’

Critics of the verdict predict that the judgment will lead to harassment of media persons and that it would create serious problems and opens the floodgates for the high and mighty to seek virtual censorship. However, in order to preempt any inference of its verdict as an attempt to suppress freedom of the media, the Apex Court while indoctrinating in the aforestated case has already made its views on the importance of media’s role clear. The Court has acknowledged that the media, in several cases in India, is the only representative of the public to bring to the notice of the court issues of public importance including governance deficit, corruption, drawbacks in the system. It has been further clarified that by setting forth the doctrine the Court is not passing a blanket order, rather the concerned Courts shall be free to deal with each application on a case by case basis. It is equally noteworthy that, this is not the first time that the Supreme Court has favoured the principle of postponement. In several instances in the past it has allowed prior restraint on publication and has thereby asserted that such an approach on its part is neither unwarranted nor unjustified.

A fair and unbiased media is indispensable in our country. It has in its own way served as a check against the corrupt and stood guard against exploitation of the vulnerable. Incidental to such purport and objective of its function, the media must necessarily carry with it the inherent right to freedom of speech and expression, guaranteed by our Constitution. However, unlike in the United States of America where freedom of expression is absolute under the First Amendment, in India freedom of speech and expression is not absolute and it is subject to reasonable restrictions. It’s high time the media realized the necessity of such a limitation keeping in mind the principles discussed and directions laid down in Sahara India Real Estate & Ors Vs Securities & Exchange Board Of India & Anr . It must also remember that playing to the gallery may maximize media's immediate commercial gains but slowly yet surely it’ll stand bereft of the support and admiration of the right minded people and that would be a barter the media cannot afford to make. Reinforcing the foundation of our democracy involves according due weight to both – right to free speech and expression on one hand and the effective administration of justice by ensuring fairness of trials on the other - a valued rule required to be remembered by all concerned.

Except for those restless days in school where adoloscence was a inhibitor in many ways, I don't remember having ever wanted to grow up. These leads to