Interview | Judges must be strong in withstanding the pressure of media trials, says senior advocate Vivek Sood

Ever since the enactment of the constitution more than seven decades ago, legal debates in India had been largely woven around important constitutional issues like fundamental rights, judicial review, independence of the judiciary, the appointment of judges, etc. As these overarching constitutional issues are addressed and adjudicated in the High Courts and the Supreme Court, they get ample media attention and public scrutiny. However, the criminal justice system which concerns the common man is less talked about. Free and fair trial forms the bedrock for the dispensation of justice. And for ensuring free and fair trial the essential prerequisite is a robust criminal justice system. [caption id=“attachment_12209772” align=“alignnone” width=“198”] Chaff & Grain: Guilt, Innocence and the Dilemmas of Justice written by Vivek Sood.[/caption] In a freewheeling chat with Firstpost, Vivek Sood, who is a Senior Advocate at the Supreme Court of India and author of the book - Chaff & Grain: Guilt, Innocence and the Dilemmas of Justice - shared his informed views on different aspects of the criminal justice system. The subject of your book Chaff & Grain: Guilt, Innocence and the Dilemmas of Justice is the Indian Criminal Justice System. What prompted you to write this book? The Criminal Justice System evokes tremendous interest amongst people at large from all walks of life. The morning newspapers, TV, and social media are full of crime news and cases. People discuss and debate on criminal cases with passion. Bail, arrest, convictions, acquittals, punishment, investigation, murders and other crimes, fake encounters, sedition, false cases etc. are always on the coffee table, social get togethers, trains, planes, buses and where-not. This interest amongst people coupled with the fact that there’s no book that demystifies the Indian Criminal Justice System prompted me to write this book. With three decades of experience as a senior criminal lawyer has given me a perspective and insights into the criminal justice system which I wished to pen down into a book that is readable for all readers and not only for the legal community. My deep interest in the subject pushed me to write this book which is closest to heart amongst the seven books I have written so far. Usually, legal debates are only on lofty constitutional ideas and issues like constitutional morality, independence of judiciary, appointment of judges etc. Issues concerning the justice delivery system and criminal justice system are often not given that importance. What according to you is the reason behind this? In my view, there is a general lack of interest in writing amongst criminal side lawyers on issues pertaining to criminal justice. Criminal side lawyers must pick up the pen and write on issues pertaining to the criminal justice system. This lack of interest is the reason why there aren’t books and writings on the criminal justice delivery system. You have a flood of crime news but not writings on criminal justice. On the other hand, constitutional lawyers pick up the pen more often and hence you see a growing literature on constitutional issues such as the above. One of the issues you have dwelt upon in your book, is the abuse of criminal laws such as cases of cheating, Scheduled Caste/Tribe Atrocities Law, and rape. Do you think it’s time to rethink about these laws? These laws are necessary, and I have not questioned their existence or validity. I have argued in my book that due to the gross and rampant misuse of these laws, checks against their misuse must be brought into the law so that innocents are not roped in and even if they do then immediate relief from the judiciary must be available to them. Also, legal action must be taken against such unscrupulous ‘victims’ of crime so that they are punished for abuse of criminal law and there is a sense of deterrence for others. In my view, those accused of false charges are the victims and the so-called ‘victims’ of crime are the criminals. What is your view on the law that defines and punishes Sedition in the Indian Penal Code, 1860? The law (Section 124-A IPC) defining and punishing the offence of Sedition, has been stayed by the Supreme Court and the Government is contemplating amending the law in this regard. In my view, as argued in my book, India does need a law that punishes Sedition, but it must be narrowly defined and must contain checks and balances against misuse of the law. In fact, I have suggested the definition of Sedition for lawmakers to consider. You have written about dishonest and incompetent investigation in your book which you have called ‘Malvestigation’. You have also made out a case for promoting scientific investigation. Given the situation in most states where forensic infrastructure is still not up to the mark, how can this be ensured? The lack of forensic infrastructure is only one of the many problems facing the Indian Criminal Justice System. I have addressed many other issues concerning ‘Malvestigation’, an expression I have coined in my book. Scientific investigation is only one of the aspects of the problem. The other problems include poor, shoddy, incompetent, and motivated investigation. I have picked up several cases to make out a case for reforms in the area of criminal investigation which is the backbone of the criminal justice system. Does media trials in certain cases that are highlighted in the media affect the criminal trial? In my view, media trials do influence most of the trial court judges. In such cases, they tend to take the ‘safe’ route of convicting the accused, leaving criminal justice to the High Courts and Apex Court. This is a dilemma, as controlling the media would amount to censorship and curtailing the freedom of speech and expression while media trial influences many trial judges. In my view, judges must be strong in withstanding the pressure of media trials. They must decide cases based on evidence irrespective of the media trial. Legal costs are very high and the state of legal aid initiatives by the courts is poor. As per statistics, 60 per cent of death row convicts preferred private lawyers. In such a scenario, how can we ensure justice for all? In my view, legal aid initiatives have improved over time. Let me give you an instance. In the Delhi High Court, for instance, only Senior Advocates are engaged in legal aid matters where life imprisonment or death penalty has been imposed upon the convicts. Such measures go a long way to improve access to justice. The legal aid initiatives ought to consistently monitor and improvised till they come as near to the quality of services provided by private lawyers. The issue of pendency is a great burden on the criminal justice delivery system, leading to undertrials and convicts in jail indefinitely. What is the way to tackle it? More, more, and more judges till the judges-cases ratio reaches the level of western democracies. As of now, the ratio is pathetic. Other ways to tackle the problem is to liberally grant bail to the accused, encourage mediation and settlement (in minor cases only), throw out patently false and frivolous cases on the threshold, encourage plea bargaining, and stop lawyers from over-lengthy arguments. False cases alleging sexual harassment of women are on the rise. At the same time, safety of women is also a significant objective of the law. How can these two aspects of women justice be balanced? In my view, both these interests are important. These two interests represent the twin objectives of criminal law- protection of innocents against false implication and punishing the culprits. Patently false cases ought to be thrown out at the outset. The accused in such cases must be granted bail at the earliest or protected against arrest. They should be compensated for the false implication and deterrent action ought to be initiated against unscrupulous complainants masking themselves as victims of sexual offences. On the other hand, in prima facie genuine cases, the criminal trial must be expedited, and criminal justice must be swift. If found innocent, the accused should be let off and if found guilty he should be punished keeping in view the principle of deterrence. In other words, the chaff and grain must be separated. Here is an off-beat question. These days, several courtroom dramas related to criminal justice are finding themselves in series on the OTT Platforms. Is this a good trend especially as they are reflective of the growing awareness amongst people regarding the criminal justice system? In my view, the OTT is an entertainment space though some content may be realistic. Free speech and expression should not be curtailed on the OTT platforms. Awareness amongst people about the maladies of the criminal justice system is good, in my view. Awareness leads to reforms ultimately. The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective_. He writes on Law, Governance and Politics. Views expressed are personal._ Read all the  Latest News ,  Trending News ,  Cricket News ,  Bollywood News , India News  and  Entertainment News  here. Follow us on  Facebook,  Twitter and  Instagram.