If Mr Patel had talked about the influence wielded by the mobs, then the piece could have been much more nuanced.
MUMBAI: This is with reference to Aakar Patel’s article published on March 16 titled “The unsettling Indian justice system”. I found what the writer wrote very interesting, but he could have probably gone further. Instead of talking about fear of mobs, if Mr Patel had talked about the influence wielded by the mobs, then the piece could have been much more nuanced.
There is this principle in jurisprudence that says justice must not only be done, but must be seen to be done. This is used mainly to provide fair treatment to both sides in a case, including the one that ends up losing. However, seen another way, if applied, it also could be seen as a way to satiate a crowd’s general desire for revenge, especially in cases of injustice. The bedrock of a modern judicial system is that vengeance should have no role with judgments and sentencing. That is the reason why a victim’s role in the process is limited to providing evidence; he or she is not allowed to play any part in deciding the punishment in case there is a conviction.
While the individual victim is not allowed to seek retribution, jurisprudence does seek retribution on behalf of society. One of the explicit/implicit aims is to dissuade future criminals by signalling to them that if they carry out bad deeds, there will be consequences. So, when the article claims that mobs play a role in decisions, it is stating the obvious. In the cases discussed, the judgment explicitly admits to external influence, which is to suggest that the mob’s views may have been considered by the court.
There was recently a case in which a judge, on the verge of retirement, recriminalised homosexuality in India. Given the milieu we live in, it is clearly a retrograde decision, but there was widespread approval of it. Can it be said that the mob had no role to play in this decision? No man is an island and it is a reasonable conjecture that some judges would acquire the mob’s prejudices through osmosis. In the US, the nine Supreme Court judges (all of whom are supposed to be storehouses of wisdom) are not unanimous on issues like abortion rights and gun control.
The justice system likes to give an impression that the judge is some inanimate object represented by a temporarily blinded lady with the balance/scale in hand and protected by “contempt of court” powers, which have significant latitude. The reality is that an inanimate court does not render a decision but rather, a human being sitting in the judge’s chair arrives at an opinion after hearing arguments from both sides, with the judgment filtered through personal prejudices and bias.
Just to clarify, I am not affiliated in any way with the legal profession. These are just observations of a by-stander
Mahesh Vaze
Published in The Express Tribune, March 23rd, 2014.
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