Opinion Op Ed 16 Dec 2019 Rule of law vs lynch ...
The writer is a senior TV journalist and author

Rule of law vs lynch law: Deliver speedy justice

Published Dec 16, 2019, 12:20 am IST
Updated Dec 16, 2019, 12:20 am IST
The desire of revenge is so pronounced that there have been posthumous executions and that too in the name of justice
Every new incident spurs new laws which get jaded in course of time as nobody wants to look back what earlier legislation provided and why did they fail.
 Every new incident spurs new laws which get jaded in course of time as nobody wants to look back what earlier legislation provided and why did they fail.

In the midst of encomiums being showered on the Telangana police for doing instant justice by killing the four persons accused of raping and burning to death a young veterinarian in an encounter and thus stopping the law from taking a long and circuitous course, Chief Justice of India S.A. Bobde has said, “revenge is not justice,” and it cannot be instantaneous. It is true that justice hurried is justice buried, but justice delayed is certainly justice denied. The police snuffed out the discontent of the disconsolate people worn to a frazzle fighting cases. The exuberant support to the police is a severe indictment of the judiciary, which is infamous for giving dates, not justice. However, the police cannot wash its hands of its responsibility because crimes are committed only because the administration is notoriously soft. In the Hyderabad rape case, the victim died as the police, instead of taking her to hospital, kept passing the buck over jurisdiction. Just one day after the Hyderabad incident, the Unnao rape victim, who was set afire by the accused, succumbed to her injuries, raising the question: Why did the police fail to ensure her safety and security?

It is commonly believed that while revenge is settling scores without following due process, justice is a process of law and only after a fair trial guilt or innocence is decided. Thus, while revenge is guided by emotion to achieve balance, justice is a corrective process. According to Francis Bacon, revenge is a kind of “wild justice” that does offend the law.

 

The question is, what is law, and what is justice? If one goes through the history of Roman law, one finds that lex means declared law derived from lego (I declare) as opposed to jus, which was customary law given concrete shape by the courts through their decisions. In course of time leges became a manifestation of popular will enacted by the assemblies. It was like modern legislation which had a prescriptive function and ceased being declaratory of jus.

The overwhelming majority of people from all over the country chiming with the police over the Hyderabad encounter is tantamount to legitimating or rather enacting the lynch law superseding the rule of law. This may not be ex cathedra, but speaks volumes of people’s frustration and exasperation with the justice system. People want quick justice through revenge. Plato said that there are only three things worthwhile in this world: justice, beauty and truth, and perhaps each one of them eludes definition. Austrian jurist Hans Kelsen wrote: “Justice is an irrational ideal. It is not viable by reason.”

Revenge is definitely a part of justice, though a small part. If humans were purged of the emotion of revenge, the world would have been hell. It is the fear of revenge that prevents men from committing crimes to a great extent. Michael Grant Ignatieff has written, “Revenge is a profound moral desire to keep faith with the dead, to honour their memory by taking up their cause where they left off.” Murderers and rapists outrage the honour of the victims and their kin seek revenge to restore the honour.

The desire of revenge is so pronounced that there have been posthumous executions and that too in the name of justice. Oliver Cromwell, one of the signatories of King Charles I’s death warrant in 1649, subsequently served as Lord Protector of the Commonwealth of England, Scotland and Ireland. He died a natural death on September 3, 1658, but after the return of the royalists and restoration of Charles II in 1660, Cromwell’s body was exhumed from Westminster Abbey on January 30, 1661 and was put to posthumous execution. Parliament passed an order of attainder for high treason on the four most prominent deceased regicides, including Cromwell. Three others were John Bradshaw (the court president), Henry Ireton and Thomas Pride. All of them were beheaded.

In 897, the corpse of Pope Formosus was disinterred on the order of Pope Stephen VI. He was tried and pronounced guilty and three of his fingers were chopped off. Simon de Montfort, sixth Earl of Leicester, was fatally injured in the Battle of Evesham and died in 1265. But posthumously, he was beheaded, castrated and quartered by the knights of British King Henry VIII. Forty-five years after his death, John Wycliffe was burned as a heretic. Such instances are galore, and in each of them, the passion of revenge got the better of reason.

For the Pythagorean, justice is that which returns equal for equal; nine is such a number. Revenge is a small part in the larger framework of justice. But justice can be arrived at through due process only. Such incidents of encounter or lynching should jolt the judiciary out of its slumber. It has been decided to increase the number of fast-track courts. Will it help? No. What happened to the Criminal Procedure Amendment Act 1973, which was based on three considerations: speedy disposal, due process and a fair deal to the poorer sections? But a fake narrative is floated over the number of judges that the delays are because of a woefully short number of judges. The tunnel vision has not allowed any meaningful debate on judicial delays. People with frogs in their throats will never utter the truth — that it is intention and competence that count more than numbers. There can be no qualitative and quantitative improvement in the administration of justice without improving the quality of judges. Nobody seems to be worried about these three considerations. The CrPC was amended providing for speedy justice, which was elevated to the level of a fundamental right under Article 21 of the Constitution of India (right to life and personal liberty) by the Supreme Court in Hussainara Khatoon v. home secretary, Bihar (1979 AIR 1369.) It was affirmed in several other decisions subsequently.

Every new incident spurs new laws which get jaded in course of time as nobody wants to look back what earlier legislation provided and why did they fail. An attitudinal change is required in the thinking of judges and lawyers. They must realise that moving the court is not a luxury for anyone. The abhorrent practice of adjournments must be done away with. It must not be granted even in the rarest of circumstances as Indians have ingenious minds that enlarge a needle hole into a tunnel through which even trains can pass. If a lawyer cannot appear due to some unavoidable reason, s/he may submit written arguments. In fact, a petition contains all facts and arguments. It was the practice in the Privy Council that senior advocates would rise and say: “If your lordships have read the petition, I have nothing to add.” Doing away with adjournments will solve half the problem. Then it is the quality of judgments. Unfortunately, it has become a judgment system, not a justice system, as late Justice Chandrashaekhar Dharmadhikari once told me. Not many people would file appeals against well-reasoned decisions knowing full well that there are little chances of success in the higher courts. Judgments must be brief and crystal clear. Judgments of the Privy Council or of the Indian Supreme Court in the initial years were very brief, running into a few pages. Now there are verbose judgments running into hundreds of pages, and yet clarity eludes necessitating disambiguation. Brevity comes from clarity.

There is a crying need to shore up public confidence in the judicial system. It is possible only through speedy and quality justice.

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