LAW RESOURCE INDIA

Mature justice

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, DEATH PENALTY by NNLRJ INDIA on October 21, 2010

R K RAGHAVAN IN THE FRONTLINE

Three recent judgments delivered by courts at different levels in cases that were in the media glare stood out for their judicial sagacity.

THE recent trend of judicial pronouncements being assailed at the slightest provocation should be of concern to those who look upon the judiciary as the last institution of hope to buttress a crumbling system of governance. (The news of the Karnataka “thamasha” convinces me more than ever that the judiciary is our only hope against chaos.) The unfortunate situation is serious if one reckons the grave charges levelled even against personalities as high as a few former Chief Justices of India. I do not for a moment suggest that all judicial orders need to be accepted without demur or that every court decision is well reasoned and beyond reproach.

Undoubtedly, some of them are poorly written and argued, demanding circumspection and analysis. Also, the availability of a process of appeal to the highest court of the land should be a source of great comfort for those who are cynical of the quality of the lower judiciary. What I am pleading for is only a rational discussion of judgments without the sway of emotions or narrow sectarian or political proclivities. I am speaking in the context of at least three cases that were decided recently by different courts: the Supreme Court, a High Court and a trial court of sessions. These have been discussed and criticised in the media by a spectrum of public figures and experts.

Many of the commentators who were active in this connection are the best in the country, although a few carried a bias arising from their well-known political and other predilections. One must remember that such debates have a profound influence on the people’s perceptions of an institution such as the judiciary. This is why commentators need to be careful and responsible when they air their views on court judgments, even if this means they risk sounding all too trite. Whether those who commented on the three judgments – the Ayodhya, Priyadarshini Mattoo and Pratibha Murthy cases – rose to the exacting standards that I set here is doubtful.

The most contentious of the three cases is certainly the one relating to legal rights over the land on which the Babri Masjid once stood, until it was unjustifiably and crudely demolished on December 6, 1992. The judgment, in what is distinctly a civil case, given by a three-member Bench of the Allahabad High Court, decreed a three-way division of the disputed land among the three litigants. While this has been found acceptable to some sections of the population in Ayodhya and elsewhere, others believe that the ruling went beyond the questions posed to the Bench and that some of its statements, especially with regard to the place of birth of Rama, were based more on traditional faith carried over to the present, than on facts established by documents. One jurist went to the extent of criticising the ruling as the product of an attempt at mediation in “panchayati” style. This I thought was uncharitable. Fortunately, no one who was unhappy with the judgment has until now cast aspersions of bias on any of the three judges. This is great testimony to the quality of our higher judiciary.

I am no expert on Ayodhya, which is an extremely complicated tangle. I am, however, persuaded by the fact that feelings on the issue are surcharged, and any decisive ruling in favour of one of the parties would have definitely excited emotions so badly that the Court order could have led to a major inter-religious conflagration. This is what possibly agitated the minds of the judges when they gave a compromise formula. In my view, this was judicial sagacity of the highest order that deserves to be commended rather than denounced.

Even the strictest possible analysis of the verdict shows that it was not exactly extra-legal, but one that accommodated rival points of view to the extent possible. It is the role of the judiciary to ensure that in such sensitive social issues the mean path is adhered to so that equilibrium in the community is maintained. The fact that the judgment did not lead to a disturbance of peace is itself proof that it was the best compromise possible. The judiciary in a plural society needs to rise above differences of religion and caste, and the Allahabad High Court judgment did succeed in achieving this difficult objective.

The Mattoo case dealt with the brutal rape and murder, in January 1996, of Priyadarshani Mattoo, a Delhi law student, by one of her seniors, Santosh Singh. This was a crime of the most abominable variety. It was initially handled by the Delhi Police and later transferred to the Central Bureau of Investigation once it became known that the father of the accused was a senior Delhi Police officer. The CBI laid the charge sheet after sustained inquiries. The trial court was convinced that Santosh Singh was the culprit. It, however, acquitted him on the basis of certain inconsistencies in the forensic evidence let in – such as chain of custody of samples picked up at the scene.

The CBI escalated the matter to the Delhi High Court, which accepted the prosecution story in toto and sentenced Santosh Singh to death. The latter appealed to the Supreme Court. Delivering the judgment recently, the two-member Bench held the accused guilty but commuted his sentence to one of life. The judges cited the youth of the accused and the fact that he got married after acquittal by the trial court and became a father as reasons why he deserved compassion. This has naturally not gone down well with the victim’s family and their lawyers. They strongly believe that the mercy shown to Santosh Singh was misplaced and that the Supreme Court had erred in ignoring the feelings of the victim’s father, who had carried on a relentless campaign to avenge the cruelty.

It may sound contrived when I say that my heart goes out to the Mattoos, who could not have suffered a greater tragedy in their lives. I do not think we can find anybody, barring the close relatives of the accused, who demonstrates an iota of sympathy for Santosh Singh. Except some of us who stand for the abolition of capital punishment, none would have disagreed with the Supreme Court if it had confirmed the death sentence. This was because the crime was barbaric and had been established firmly despite the fact that there was no eyewitness. The point is that courts cannot take a one-sided view of a crime, even when it has been proved beyond doubt. Justice laced with sympathy is a time-honoured concept that has been accepted widely by civilised society over centuries. The Supreme Court here did not say that it disbelieved the prosecution, nor did it seek a higher standard of proof, even though Santosh Singh was held guilty mainly on circumstantial evidence. The court’s position was only on the point of compassion to the accused because he had a very young child. Also, his youth offered hope of penitence and reform.

People like us, not directly affected by the tragedy, are undoubtedly impressed by the Supreme Court’s remarkable stand, which required tremendous courage to take because of the likelihood of adverse criticism from the victim’s family and friends and the media. Undeniably, some of us are at variance with the Mattoos, who lost a lovely daughter who had a promising career before her. The conflict between rival stands – those who are touched by the judicial compassion and those looking to avenge the barbaric killing – will never be resolved. This is the tragedy of many cases brought before criminal justice agencies, and we have necessarily to live with such a paradox.

The case of the rape and murder of a business process outsourcing (BPO) employee, Pratibha Murthy, in Bangalore by a taxi driver, Shivakumar, in 2005 is only slightly different from the Mattoo case. Unlike in the latter case, the accused was a total stranger to the victim. The case was tried by a so-called fast track court and the judgment delivered only on October 8, 2010. Few doubted the guilt of the accused, and his conviction was rightly welcomed by all. The controversy is over the quantum of punishment.

The trial judge’s award of a life in jail (until death) has been criticised as lenient, because of the fear that life sentence opens up the possibility of the convict’s release at the end of 14 years, the period prescribed by the Criminal Procedure Code for such a sentence. I am not sure whether the judge’s stipulation that the convict be held in prison until he dies is sanctioned by law.

It is possible that the State may go on appeal, under pressure from the victim’s family and the weight of public opinion. In any case, the quantum of punishment imposed on the taxi driver is debatable. There is no final resolution of this. However, is it not time to take a fresh look at what “rarest of rare cases” would mean in the context of rising violent crime, especially when the victim is both raped and murdered?

In sum, the three judgments display a certain maturity of the justice system in the country, despite all the criticism against its susceptibility to political pressure and the poor quality of the lower judiciary. There is the further dismay that the judiciary, except in rare cases, does not attract the best of talent. Finally, there are the wide differences between the executive and the judiciary over the manner in which appointments should be made to the High Courts and the Supreme Court.

The three judgments offer the hope that these shortcomings in the system will not inhibit judges from being innovative, compassionate and bold in cases that attract media attention. This is why any overhauling of the system in response to charges of politicisation and downright lack of integrity against individual judges needs to be done after due deliberation. I believe this represents the consensus among the common people in the country.


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