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Mainstream, VOL LIII No 32 New Delhi August 1, 2015

Justice in Peril

Friday 31 July 2015, by P.B. Sawant

The current events have raised some ponde-rable questions relating to our criminal justice system. The system involves three different institutions—the investigating agencies, the prosecution and the Courts. The Courts have to decide the cases on the basis of the evidence, law and jurisprudence. The evidence is collected by the investigating agencies according to their own methods which are inscrutable. The prosecution has to assist the Court by presenting its case as fairly as possible.

How much diligent, sincere, honest and impartial are the agencies in collecting the evidence? Are they upright, or work under some pressure? Are they corrupt, biased, prejudiced or amenable to influences? Answers to these questions determine the truthfulness, adequacy, cogency and assurance of the evidence collected. The next stage is the presentation of the evidence in the Court. How honestly does the prosecuting agency discharge this job? One may raise the same questions with regard to the prosecutor, as are raised in respect of the evidence collecting agency. Is he corrupt, is he amenable to pressure and


? Does he indulge in manipulation of evidence, brow-beating and threatening of the witnesses? The code of conduct for the government prosecutor reminds him that he acts and has to act on behalf of the society at large and not on behalf of the government or the prosecuting agency. It is not his duty to secure conviction at any cost, by creating or suppressing evidence. If there is no reliable evidence or if he is convinced that the person who stands accused is not guilty, it is his duty to inform the Court accordingly and not persist in prosecuting him. This is his minimum moral and professional obligation to the society. Do the prosecutors abide by this elementary ethical precept? On the other hand, a great majority of them count their progress on the number of convictions they secure, by whatever means they choose to adopt.

The judges no doubt, are not less vulnerable. They are, after all, human beings subject to the same weaknesses, failings and influences. But they are trained to do justice by removing all their personal caps and strictly following the rules of admission and appreciation of evidence, the law and its intent and the binding precedents. Their judgements are subject to appeal, and revision. Even the highest Courts’ judgements are subject to review. There is thus internal accountability in the judiciary. The Courts have to give judgements on the basis of the evidence before them. If the evidence is false or inadequate or manipulated, the Courts cannot be blamed, when justice fails. The fault is of the investigating and/or the prosecuting agency. The common man, being uninformed of the intricacies of the entire process, very often blames the judiciary for the failure of justice.

This does not mean that the judges do not play any subjective role in shaping the results of the cases they decide. Their attitude and approach to the cases, are also determined by their social outlook. It will be unrealistic to assume that the personal biases and predilections of the judges do not influence their decisions at all. Not all judges, further, are immune to pressures and influences. Living in the same society and partaking the same social atmosphere, they cannot be expected to be stoic and resigned. That is why we witness differing judgements on the same facts and points of law.

The justification for the abolition of the extreme sentence of death penalty springs mainly from the possibility of the human error on account of these factors. Have we not come across instances where supposedly murdered individuals, for whose murder,the accused were hanged, returned alive? The hanged were gone forever. So also do not we know the cases where, the persons serving prison sentences were later found innocent when fresh evidence cropped up?

The question is also often asked, if we have a right to take life when we cannot give it. But I am at present troubled by a very topical and vexatious question by the government’s decision to hangYakubMemon. Whatever the merits of the Supreme Court’s judgement, when those behind the massacre of Muslims in Ahmedabad and around in 2002 are roaming free, and are occupying high public and political offices with power to shape the destiny of the nation, have we any moral right to hang anybody including Yakub? The persons concerned have been squarely indicted and condemned by the People’s Commission organised by the NGO headed by Teeta Setalvad, who is being persecuted by the Government for the last several months on that account. We thought that the arms of law and justice were not meant to take revenge and hound people—certainly not in a democracy. Are these not the indications of Hitlerism and Stalinism? It appears that at present we have despotism in the name of democracy. Justice itself is on trial. Let us save the country.

July 28, 2015


Justice P.B. Sawant is a former judge of the Supreme Court. He was also the Chairman of the Press Council of India.

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