Wednesday, February 8, 2012

Defining Justice

For the last couple of days, our Judicial system has been the center of the storm.
Getting the ire of the media and the big corporate houses with respect to the judgment on the 2G scam, wherein the Supreme Court has been told that they have over reached the powers that are granted to them.
Then there is the Maria Susairaj case where again the judicial system was condemned, for releasing that girl for being an accomplice to the murder.
Then, there is the ever impending matter about Ajmal Kasab being the guest of the country.
The latest in the list being the reduction of a sentence of a low class laborer who sodomized a 10 month old girl. I came across the controversy on Bikrams' Blog.
I read the article in the Indian Express and finally, through my own research found the judgment that was pronounced by the Mumbai High Court.

This blog post specifically answers certain averments that have been put on the lawyer (s) who fought the case for the accused, and some of the general gyaan that the general junta should know about how the criminal justice works in our country.
**********************************************************************************

The Judgment, the text of which you can read online, simply states, that they have upheld the conviction of the Accused. The only thing being that, they have reduced the sentence from 10 years to 7 years, RI. RI meaning rigorous imprisonment.
And, just so that you all know, a judgment, unless there is no settled law or previous judgment do not give in to the bald arguments of a lawyer.
If you see the judgment, there is a previous judgment that is relied upon by the court to lower the sentence. Further, the reason was because of the 'perversity and deprivation' of the mind, and not because he was 'lonely' as alleged by the newspaper.
There is a difference between a submission that is recorded in the judgment and what the judgment really states. I am appalled that newspapers misquote like anything.
Further, it is imperative to note that the judgment records the fact that, the trial court was aware that the accused had a family back in Uttar Pradesh and that by no means it meant that it should have been the reason for a lenient sentence. But, it was important that a proper perspective be given while passing any judgments/ orders.
And he agreed with the position of law as explained in the case that was cited.

There is no where, where he has said that, what the accused did was right. Just because he set off the sentence with the amount of punishment that the accused had already under gone does not make this judgment wrong.

Of course, if the family is not happy, they can always go in appeal. But just so that you know, that poor baby was 10 months when this happened to her. She would now reasonably be almost 7 years. Through the entire proceedings, she must have been traumatised, considering she wouldn't have really remembered what happened to her then. So just remember you are not fighting for a 10 month old baby.

Here is the thing about our Criminal Judicial system:
1. It is largely based on the principles of Natural Justice, wherein, a Criminal is not considered is always considered to be a non criminal till proven otherwise.
2. The reason why the laws are so strict about the criminal justice system are, so that, an innocent is not put behind bars *YES, there are n number of cases wherein, an innocent is behind the bars*
3. And, there is the reformative aspect of the criminal justice system that we have adopted in India, wherein, if it is the first offence, the punishment should be such that it does not end up hardening the criminal, but instead makes him realise that he has done wrong and that he has to reform. *I hope you all remember that Tihar is one of the major models for this system*

And lastly, whenever we are wronged in any way, we cry ourselves hoarse preaching about the fundamental rights.
The same fundamental rights guarantee that, each and every accused has the right to be represented through a lawyer. And in case he cannot afford a lawyer or doesn't know of any, then it is the duty of the State to provide a lawyer for that person to ensure a fair trial.

To answer you, Bikram, if you read the judgment from the top, you will see that the lawyer for the appellant was appointed.
And, when we get ourselves enrolled as Lawyers, we are governed by the 'Advocates Act' wherein it is our duty to do any and every case that comes to us. We are NOT allowed to say NO to it unless there is a conflict of interest. *By conflict of interest it means that, if you have appeared for the other side before, you can't appear against them.*

Just like it is the duty of the doctor to save lives, irrespective of the fact that the person on his table is a serial killer, similarly, a lawyer irrespective of the moral turpitude that may go inside him, he has to do his duty. And mind you, we cannot sabotage the case of our Clients. That goes against our ethics.
Believe it or not, all lawyers in their lives defend criminals and fight against them too. You cannot take a case based on your emotional assessment, it has  to be assessed based on the facts of the case. Whether, morally you approve of it or not.

We lawyers are called by various names, including being called as crooks, but just like everyone else, who sit on their desks and type codes, attend meetings.. we do our duty bound by more rules and regulations than what you can imagine.
We ADVOCATE, we put forth what a person has to say based on the laws of the land.

And as far as a judge is concerned.. they are highly educated and people with more experience in the field of law than what you cant even imagine. They too cannot go beyond the certain jurisdictional restrictions and above all the restrictions placed on them by the laws itself.

The Courts of our Country our bound to serve the society, but there are the laws of the land that have to be followed, because no one in our country is above law, not even the PM. And, these courts are also the custodians and protectors of the Constitution, that helps running the Country. It is the bible on which the laws are made, and a place to look when you require interpretation on ANY law.

Saying what I have said, that does not mean that I endorse what the accused has done. I think that the quantum of punishment for such offenders should be very severe, but that does not mean that a trial be done with biased heads and punishment be awarded without weighing the pros and cons and putting the entire thing in perspective.

It is even more appalling, that, we Indians, have no faith in any system. At least have faith in the Judicial System of our Country, wherein the Courts, ONLY think about the benefit of the society at large.

And you know, why this judicial system is clogged, because, of certain strata of the society who keep appealing every order that comes against them.

Justice never only means punishing the accused. There is a lot more involved in it.

In the end, I would like to iterate what I have said before, that, if the parents are not happy with the order of the Mumbai High Court, then they can go for a appeal to a larger bench and then to the Supreme Court. And, you all should remember that, that 10 month old baby is a 7 year old girl, and thanks to all the hue and cry, even if she is over the incident considering that she is was just an infant then, she will be forced to live through a hell that she never knew. 

17 comments:

Bikramjit said...

ok.

I want to write a lot but nevermind..

I will just like to give attention to Point 17 and 18..


also I dont understand what you mean by the child was only 10 months old and may not remember what happened then.. does that matter even if she has forgotten a crime has been done ..


Bikram's

Rià said...
This comment has been removed by the author.
Rià said...

Somehow I read this whole post from a lawyer's perspective and not from Sakshi the human's perspective. I do agree that she is 7 yrs old now but that doesn't reduce the pain and trauma of the parents who have lived thru this ordeal.

It really doesnt matter whether or not the girl remembers it now! What matters is how is the accused being punished. Its bcoz of such cases that we lose faith in the judicial system.
And how is it possible to keep faith in the system when we have been let down everytime! U urself have enumerated the cases where the judiciary has done that, be it the Maria Susairaj case or be it the famous Kasab cases...god only knows when he will be hanged!

And when it comes to appealing in the higher court, everybody knows how long a case takes in our country...its a long and painful process.

Sakshi said...

@Ria
I am answering you first, because, here is the deal, I have handled a Sodomy case.
Of a boy, who was molested by his teacher in one of the most reputed schools of Delhi.
Do you know, why did the mom approach the Supreme Court?
Because, she did not want the poor child being re called as witness/victim when the accused was going for appeal because the poor child took years and years and years of counselling and trauma when he was going through the entire process of the whole thing.

So when I say trauma, I have seen it, experienced it first hand.

And, the reason why I mentioned the fact about the child being 7 twice is because, I know that both the child and the parents would want to move on.

The fact that the judicial system is clogged is because everyone thinks that they are right and want an order in their favour.

What you din see is the fact that, the judge in this case mentioned very clearly that he is not acquitting him, as a matter of fact his conviction was upheld.

I had to explain this as a lawyer, over being a human being and a girl who has been harassed on the streets, because the media is strangulating the issue.

The issue is not that his sentence was reduced, the issue is that, the society needs to have a transformation of minds.

Sakshi said...

@Bikram

I explained the point of the age in reply to Ria's Comment.

Trust me when I say that I have seen much more than what I am given credit for.

It is very easy for people to point fingers, but in each profession, especially profession where the responsibility of always doing right is on certain shoulders, you have to understand each aspect before giving a judgment or even making a statement.
To know a system and how it works, you have to be inside it.

Just so that you know- Sentence for rape is 7 years and sodomy is 10 years.
Go, get the law changed, we have been trying to.

Rià said...

It is certainly refreshing to hear it from a lawyer's point of view. Point taken. But I would still want some of our archaic laws to be changed coz they r simply outdated!

Also sometimes criminals who probably will never change their ways are let off too easily...I guess that's the reason why u see so much of anger and mistrust around.

Chintan Gupta said...

Hmm! I think you did make a fair point, we do not really mince our words while pointing fingers. Forget such important cases, even in real life over a small issue we do that.

I really appreciate you sharing your opinion on this and clearing the air. Good to know how lawyers think.

Jack said...

Sakshi,

Very informative post. I agree that the guilty must be adequately punished but do we not have any feeling for the victim? Do we want her or him to live that traumatic incident over and over for years to come? I have known of a case where the lawyer asked questions like JAB USNE TUMHARE KAPDE UTAARE TO TUMNE USE ROKAA KYON NAHIN OR TO PHIR USNE KYAA KIYAA. And that too after almost 5 years after the incident. One should put self in victim's position and think would you like to be reminded of such barbaric act over and over? That is why I always say that we need to enact a law that all cases of rape or molestation should be finalised within a stipulated time frame, say 3 months from trial court to SC. If anyone tries delaying tactics, then let the case proceed ex-parte.

Take care

Archana Chari said...

This has by far been the most informative piece on legal systems. Not a rant ; not a story! Thanks so much for writing this!

Bikramjit said...

Hi sakshi I totally understand your point , not denying about anything. and this is definitely not against you or anyone.. there are good and bad lawyers.

I don't know what you have seen or not seen and I am not discrediting you over anything, we all have a job which we all do and hopefully with all our heart.

You say you are all trying to get the law changed, then why defend it in this way. I have written the note on my beliefs..

I do this work too, I see it day in and day out too, when a criminal is arrested and within 24 hours a HOTSHOT lawyer comes and he is out on BAIL. The pressure responsibility you are talking of it comes first on our shoulders as its the likes of me who have to DEAL with that child and the parents..

I said this to let you know that the note is not against all the lawyers it towards this particular one.

Holding the conviction but reducing the jail term why, if the sentence is for 10 years then let him rot for another 3 -4 years ...

When I go out to do my job I act according to my Belief, always have always will the day I don't do it I will resign straight away, for the last 8 years now, you arrest a person with all evidence, put him behind bars and he has the RIGHT to call a lawyer and here They come ...

The morality has gone , if the same happens to this lawyer in question I am sure he will have other thousands of previous judgements or trials to show where harsher punishment was given, IT IS THAT i am pointing out. do you think he will still be talking of the same as his point 17.

Thats the question I ask , if he says YES then he is the best lawyer ever and if he says no to the question then you have read my views on that.

Thank you for the reply though and take care..


Bikram's

Sakshi said...

@Bikram:
You are not understanding what I am trying to say.
It is not about morals.
A judge and a lawyer have to work beyond it, because, yu have to work according to THE LAWS OF THE LAND.
Each one of us has a different set of beliefs and define the boundary lines according to our own perspective.
For some sex before marriage is being a slut and for others it is a way to give in to the natural desires of the body.

Thus the laws and the factum that one who is sitting on the seat of the judge has to do justice according to THAT.
HE IS NOT ALLOWED TO BE JUDGMENTAL ACCORDING TO THE EMOTIONS THAT HE HAS.

Sweetie, I am sure the lawyer in question would present his case in much better light if it is the opposite. Then it is the fault of the other side lawyer who was unable to convince the judge that the sentence should not be reduced.

I have just tried explain a simple fact that, the order will come in favor of the person who is able to convince the judge with his arguments within the ambit of the laws that have been laid down.

That is it.

Sakshi said...

@Bikram
Just remember there are precedents for every kind of case that you can imagine. You read the laws and you will know how comprehensive they are.

But also remember, that they are archaic in nature, and the reason why they are not being changed is because for every amendment in laws, it has to go through the parliament and passed by the ministers!

There is a reason why the Supreme Court is as far as possible laying down the guidelines in many a cases, so that the laws do not get twisted in the arms of the politicos!

Sakshi said...

@Uncle J
Start accepting the decisions of the lower courts. Stop contesting every small issue and making it a question of law, then maybe the judicial system shall be unclogged.

In my post above I wrote about natural Justice, well in accordance to that and the procedural laws, the opportunity has to be accorded. And just so that you know further, now the courts have started becoming very strict with delay tactics and cost is imposed on the side who tries and delays!

Sakshi said...

@Ria
Check out what I said to bikram and uncle J about why the laws are archaic!

@Chintan
Thanks :)

@Archana
Well, that is a huge compliment! Thanks a ton for visiting. Hope to see you more often here :)

Bikramjit said...

Yes mam, point taken and Thank you. :)

Bikram's

Chintan said...

This http://anupampatracontemplates.blogspot.com/2012/08/why-lawyer-must-defend-perceived.html reminded me of you :)

Anupam Patra said...

Thanks Chintan for sharing my blog.
And Sakshi I'm
glad to know that you're trying to clear the notions concerning our justice delivery system, something I too 've been trying to do since the day I've started blogging.

It's not like I have some agenda against critics of judiciary but it is painful to see misinformed criticism which quite naturally has in many cases given way to cynicism.

I wholeheartedly support what you've written in your post.

If you've ever have time, I'd be delighted to have you go through my blog, especially the "Social Legal" page.

And Thanks Chintan for letting me know about Sakshi's blog.

Sak

Regards,

Anupam