Justice Must Not Only Be Done ....

[caveat: this post can fall in the rant domain unlike the usual content on this blog]

I must admit, I have not always fairly appreciated the contribution made by the Indian Supreme Court to our legal system. Its not without reason that a general sentiment prevails in country that the Court remains a white knight amidst the prevailing corruption. The problem is, and pardon the recurring rhetoric, we forget that with great power came great responsibility. The bigger problem actually is, that we forget appearances are often deceptive. What appearances? The appearance of the judiciary having more power than it possesses. The Court has taken up the role of investigator, judge and executioner. What it has stopped doing over time, is providing steady and coherent adjudication of legal issues. The multitude of voices emerging from the Court usually lends itself to a noisy cacophony contributing to the chaos. That's not all. This hyper-activism is corroding our democratic process. A graph would plot well how increased judicial activism correlates with decreased public participation in democratic processes. Maybe that's why Justice Frankfurter advised Sir B.N. Rau against investing the judiciary with power to set aside laws made by an elected legislature. He believed in a democracy, that must remain the prerogative of the electorate, and not the decision of an un-elected judiciary. 

Yesterday, the Court had donned its executioner hat, and in fine form. After what has been labelled as an "unprecedented day" in its history, it confirmed the death sentence for yet another human being, who was hanged to death merely hours later. Imagine, dying because you managed to convince only 1 rather than 2 other human beings that you deserve to live. We condemned the white men who sent Indians to the gallows. It seems like our condemnation was only with the choice of executioner. Mr Seervai observed the same in context of our retention of the ordinance powers with the executive. In any case, the curious case of death by judgment is the procedure seemingly invented over time by the Supreme Court. Its procedure which the Court itself seems only too happy to ignore. Take this latest episode from the start:

a. The TADA Court issued a 'suo motu' death warrant on 30.04.2015 without giving the accused any opportunity to defend himself. The execution was fixed for 30.07.2015, a decision conveyed to the convict only on 13.07.2015. As opposed to the guaranteed 90 day period for alternate remedies to death row convicts [Shabnam v. Union (WP Crl. 89/2015)], the convict here had only 17 days, for no fault of his own.

b. This interpretation of procedural laws was held by Justice Misra as not being retrospective, thereby setting aside this objection. Its rather settled though, that retrospective operation doesn't concern procedural rules. Just look at how many appeals are getting affected by the recent re-interpretation of Section 65-B of the Indian Evidence Act.

c. Suddenly there is an objection with the second mercy petition, where it is often seen that multiple clemency petitions are preferred by convicts when new grounds emerge. Short shrift was given to the new grounds here - schizophrenia - despite the recent concern shown by the Court to such cases in Shatrugan Chauhan & Ors. v. Union [WP Crl. (55/2013)].

d. The aforementioned case also held that 14 days must pass between rejection of the mercy petition and the execution, for the prisoner to "mentally prepare himself". Justice Misra observed the delay in filing the fresh mercy petition meant staying the execution would be a travesty of justice. So we mean that although someone is certainly being executed, it would be a travesty to postpone that death for a few more days?

e. Given these new grounds, it still took less than half a day (record time in fact) to reject the mercy plea. If any important decision is taken by the executive within hours, would it not normally become suspect for lack of due application of mind? Was there a fair consideration of the fresh grounds? 

In hindsight, it appears that the only reason the Court was convened at 3 AM was to ensure no changes were required of the Nagpur execution. Take a moment and go back to the narration of events which you'll find splashed across the news. Forget about the sensationalism. Take a look at that supposedly neutral chimera called the law as it stands today on the issue of executing another person. Just ask yourself: was justice done, and was it seen to have been done if viewed from the eyes of an outside observer? Any law student will tell you that justice must not only be done, but be seen to be done, and I don't think the answer is an easy one here. Our Court is Supreme but not infallible. Days like this are painful, and costly, reminders of this harsh reality.

In Terrorem: Bow thy Humble Supplicant

[Caveat: this post may be tagged as a rant]

During my brief and uneventful stint at the helm of National Law School of India Review (NLSIR), I was involved with the hosting of a Symposium which concerned the apparent conflict between security legislation and individual liberty. In the interests of ensuring security, the legislature seems overeager to withdraw procedural and other safeguards guaranteed to accused persons which help ensure individual liberty is not whimsically compromised. This well documented phenomenon cuts across jurisdictions and has been extensively written about. My personal favourite remains Professor Andrew Ashworth's Hamlyn Lecture of 2002, which can be found here. 

Why talk about it here? Because the recent episode surrounding the Gujarat Control of Terrorism and Organised Crime Bill 2015 (GCTOC) in times of relative peace makes one think that there is a long way to go. As is already known to most of us, the Bill dilutes several procedural and evidentiary rights guaranteed to an accused to presumably help secure convictions. I stress upon this aspect of relative peace: most instances of stringent anti-terror legislation rode high upon the great wave of emotion generated from particularly terrifying episodes of violence. The TADA Ordinance of 1985 and the 1987 Act were the aftermath of gruesome riots in the 1980s. MCOCA came at a time Mumbai was engulfed with mob violence in the 1990s. POTA came in 2002 after attacks on Parliament in 2001. The infamous Patriot Act in the USA came after 9/11. Where is the attendant terrorist plot behind the GCTOC? There is none, which is why support for the Bill must provoke serious questions about where society stands on the issue of protecting individual liberty. 

These statutes continue to strike me as rather odd. Considering the gravity of the charge, one assumes courts require the most reliable evidence to conclude the question of guilt or innocence. But repeatedly we find the system turning to ends-based reasoning and providing severe dilutions which make it possible to lead sub-standard evidence as proof of guilt. A prime example being the favourite provision of rendering confessions to police officers admissible. Prosecutions for serious crime charges through statutes which relax the requirements of proof are too high a cost to offer society a placebo, i.e. its a bad argument to say we need these laws for society to think something is being done by the police. It in fact grants the police legislative backing to take an easy way out, which they won't mind and thus resort to adding serious crime charges to an array of situations as has happened with the MCOCA.  

The Latin phrase In Terrorem refers to the practice of invoking fear as a basis to seek compliance from individuals to protect private rights. It seems to have found immense favour with the State. By enhancing the repertoire of offences to label nearly everything a crime on one hand and then relax proof requirements on the other, fear is soon becoming the sole basis to secure our political obligation to the State. History bears witness to how revolt soon follows.