Why the judicial system's fear of mobs is frightening

Twenty years ago, my beat as a reporter was sessions court in Bombay. I was often struck by what I thought (perhaps wrongly) were incorrect and poorly argued judgments. That this does not seem to bother too many people in India probably means that I am, as I said, wrong. But I wanted to put a few recent cases forward in any case to show what I find unsettling. Last week, Delhi High Court upheld the death sentence of four men who raped and murdered a girl in an infamous incident. The court said that if the convicts were not hung the “rage of society would not be satisfied and our justicing (sic) system would be rendered suspect.” Further, that “any leniency shown in the matter… would give rise to a feeling of private revenge among people, leading to lawlessness in society.” [caption id=“attachment_1346005” align=“alignleft” width=“380”]  AFP[/caption] I was alarmed by these words. The writer Antara Dev Sen wrote that given the existence of the death penalty and the viciousness of the crime, “the Delhi high court had no choice”. She then adds: “But did it need to specify that it was doing so because it feared public rage? Did it need to explain that it was persuaded not only by the demands of justice but by the demands of a possible mob?… Allowing mob sentiment — however justified — to influence legal procedure sets a dangerous precedent.” Last year, Arundhati Roy pointed out that the Supreme Court judgment on Afzal Guru, hanged for his role in the attack on India’s parliament, said something similar. The court accepted that the evidence was circumstantial: “As is the case with most conspiracies, there is and could be no direct evidence amounting to criminal conspiracy.” But then it went on to say: “The incident, which resulted in heavy casualties had shaken the entire nation, and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender.” Like Roy, I found this line of reasoning frightening. Also last year, in another case, the Supreme Court had defined which cases were “rarest of rare”. It said: “Certain murders shock the collective conscience of the court and community… we are of the view that such crimes, which shock the collective conscience of society by creating extreme revulsion in the minds of the people, are to be treated as the rarest of rare category.” I do not understand what collective conscience is and how it is to be measured for extreme or moderate revulsion. Then last week we had the unusual report of the head of Sahara India, who is in jail on contempt of court charges arising from unpaid money to investors. Unusual because his lawyer, Ram Jethmalani said he was, according to a report, “embarrassed to point out the mistakes committed by the bench in passing the March 4 detention order and wondered whether the petition could be placed before a larger bench.” The bench opened the next hearing with the remark: “We have gone through the writ petition. Nothing in the petition embarrasses us. You can argue the petition including its maintainability.” To this Jethmalani is reported to have said: “My client is not sure what his offense exactly is. He believes it is contempt of court. Even if I presume that is the offense for which he is jailed, it is a bailable offense as the maximum punishment is six months imprisonment.” The court has wanted to be shown how the money is to be returned, rejecting one proposal and then asking the Sahara group to come out an “honourable proposal” (according to the Times of India) for depositing Rs 20,000 crore of investors’ money. What is the meaning of honourable here? I do not know, but we shall know soon enough if Jethmalani is right and there is something embarrassing about the matter. A couple of years ago, I had a chat with a Supreme Court justice (who was then chief justice of Karnataka High Court) at a dinner. I suggested to him that judgments in India were often poor because most of the lower judiciary didn’t know Latin and didn’t understand the fundamentals of jurisprudence. He thought about it and said “No, all that most judges need to do is listen to the testimony and decide who’s right.” Perhaps he is right, and I have no idea. But all the same, it is, as I said, most unsettling.