Infochange India

Governance

Tue23Sep2014

You are here: Home | Governance | Analysis | ‘Media trials are the bane of jurisprudence’

‘Media trials are the bane of jurisprudence’

By Rashme Sehgal

Media and public pressure has seen 26 special courts set up to deal with corruption. But cases of rape, murder and communal violence, where human lives are at stake, continue to be dealt with by a slow and overburdened judicial machinery. Have we lost our sense of priorities, asks criminal lawyer Rebecca John

criminal lawyer Rebecca John

During 22 years in the legal profession, criminal lawyer Rebecca John has handled a vast variety of cases including the Securities Scam of 1992 and the hawala cases of 1996. She has appeared for the Hashimpur victims of the 1986 massacre in which 44 Muslims were gunned down by PAC jawans and also represented victims of the anti-Sikh riots, apart from challenging the fake encounter of Ishrat Jahan by the Gujarat police.

John has also represented  well-known politicians including Yashwant Sinha, C.K.Jaffer Sharief, P Shiv Shankar and Natwar Singh  and the infamous Harshad Mehta to name but a few of her long list of clients.

The judicial system is facing major challenges today.

The criminal judicial system needs a complete rehaul. Sitting in Delhi, I can see how woefully inadequate the criminal justice system is in a large number of cases. The most important cases dealing with life, death, rape and bodily injury caused to a person have got sidelined and are not get the importance they deserve.

Why is that?

This is because corruption and cases relating to corruption now occupy centre-stage. I am not for a moment suggesting these should not be tried, but when I look at the parameters of jurisprudence, corruption is way down my list of priorities because for real people, real suffering, whether it be a murder of a loved one, rape of a loved one, or death caused by a rash accident, is what affects their lives. For media and television, corruption may be important but for me, human life must have primacy over everything else.

But corruption has become so all-pervasive that highlighting it does become very important.

Cases of criminal violence take years to get resolved. When I started my practise in 1988, there was one special court dealing with corruption cases under the Prevention of Corruption Act. Today, we have 26 special courts. Each of these deals with a maximum of four to five cases a day. They are jobless with very little work at hand, in contrast to a regular sessions  court which is dealing with up to 40 cases a day. Is it any wonder that murder, rape or cases of terrorism are taking up to 10 years for resolution?

In the 2005 Diwali bomb blast case, to cite an example, the blasts took place in Sarojini Nagar, Paharganj and other parts of Delhi. As many as 62 people lost their lives, while many more suffered serious injuries. An act can’t get more heinous than this but has anyone looked back to see what has been the fate of those victims?

Since I am representing some of the accused, I can tell you that it will take another four  years for the evidence to be completed in the sessions court before it goes into appeal in a higher court. But the 2G trial is taking place on a day-to-day basis. Somewhere we seem to  lost our sense  of  priorities.

It saddens me, because a gross injustice is being done both to the victims and  those accused of the crime. Administratively, we have failed to recognise that magisterial courts are completely overworked since they are dealing with over 120 cases a day.  Ours sessions courts are overburdened, with little assistance. I wish they had only five cases a day. I believe five to 10 courts for corruption are more than enough. Unfortunately, corruption is the flavour of the day.

 We have assumed there is only one agenda for our country -- which is corruption -- and that has skewed our sense of priority.  Turn on a TV channel and the discussion focuses only on that subject. My question is: Is the gangrape of a young girl less important than the theatrics of a Kejriwal? When you have kangaroo courts being set up every day, what you end up doing is getting an overworked justice system to collapse.

You are also representing some accused in the Batla House encounter?

No, I am not representing the accused in the Batla House encounter case. I am appearing for some accused including Mohammed Shakeel, a student, who was picked up several days after the Batla House encounter took place .

Let me put things in perspective. I was approached  three years ago by the Jamia (Millia Islamia University) Teachers in Solidarity Association where some teachers  had got together to produce a book on all those accused by the Special Cell and how many of these accused had seen their cases being dismissed by the courts for lack of  evidence.

Why did you agree to take up this case?

This  is an unfair question. We lawyers are expected to take up such cases without being judgemental about the nature of the crime because constitutionally every person has the right to legal representation. I believe in that right not as a lawyer but as someone who believes in the Constitution and rule of law.

The fact that Ajmal Kasab was represented through trial right up to the Supreme Court and even allowed to file a mercy petition shows India as a vibrant democracy. To give in to a lynch-mob mentality shows us up as a nation which is no different to Somalia or countries like that.

Are these cases still going on?

Yes. Unless the accused is provided a defence – no matter what the nature of the crime -- you can never arrive at the truth of what transpired in a crime.  It is only through the process of trial, prosecution and defence that a judge can return with a finding of guilty or not guilty. If a person is not represented by a lawyer of his choice, you are actually hindering the process of justice.

These cases have served to broaden my understanding of how the criminal justice system works because the state can sometimes work in nefarious ways. Recently, the Delhi High Court passed strictures in the Lajpat Nagar bomb blast case and acquitted a few people who had been falsely arrested. If they had not been represented, they would not have been acquitted. These cases helped  me  understand the difference between hype and substance. Unfortunately, at the start of a case, everyone goes by the hype and not the substance. It is the lawyer who performs the salutary function of weeding though evidence to look at the substance which is different from the original hype.

You also handled the very complex Aarushi murder case.

That was a very complicated case to handle at many levels... I have learnt to my horror that we are very judgemental as a race. We listen to evidence that is hearsay and arrive at conclusions on the basis of the facial expressions of people. The fact that Nupur Talwar never cried is one such example. Maybe at some level, we get a vicarious pleasure in seeing people go through this hell. This is scary. What it does is put a hydraulic pressure on the system. Judges, after all, are human. They are not insulated from the public opinion and while I would like to believe that judges and courts do not base their judgments on newspaper reports and needless gossip, sometimes when you elevate cases to this level, it does result in the miscarriage of justice.

Most of the time it is Muslims who are found to be culpable in acts of terrorism.

Statistics show that Muslims rarely get justice when they are at the receiving end of terror unless there is intervention from the higher courts. I definitely think they are vulnerable targets. The late Hemant Kerkar, ATS, in Mumbai, tried to break that stereotype when the police went after saffron terror groups but I think the temptation to implicate people from a certain community is high and that is the sad truth.

The judiciary also needs to do some introspection?

Mediocrity is creeping into the judiciary as well.  The appointment process is anything but transparent and because of that, we no longer have the judges of the 1960s, ’70s and ’80s who had an understanding of the Constitution and a worldview, and where the rule of law was upheld zealously. Today it is more a quick-fix.

With a quick fix you have a problem. Look at the jurisprudence of the early years -- the debates and judgments were so beautiful. All angles were looked at, but today judges don’t have time.

The other problem is that the judiciary faces relentless pressure from the media. Media trials have become the bane of jurisprudence where people are being hanged at the altar of prejudice rather than on the basis of impeachable and legally sustainable evidence.

I tell my clients not to file a petition till the media view diminishes. This is something ordinary Indians will not understand till they are caught in such a situation themselves.

The bureaucracy and judiciary are two monoliths which need to be put under much greater scrutiny. There is the contempt law which holds everyone back. If we have to change, we must be willing to expose ourselves to greater scrutiny.

The judiciary has given us some of the most brilliant judgments which have largely gone by the spirit of the law but that too is changing. Public scrutiny is a good thing. If we are being watched, we tend to become careful.

There seems to be a steady dilution of the freedom of speech too?

The right to freedom of speech is being diluted as happened in the recent case where two young girls posted their comments on Bal Thackeray’s death on Facebook. Somewhere in the last 20 years, we have lost our ability to take criticism in the spirit in which it is given. We never go after the bullies who initiate violence because we are afraid as a nation to take them on but we always go after soft targets because they are unable to fight back .

Are you dealing with any cases of sedition?

I have dealt with many cases of sedition including the one of the Marxist ideologue Kobad Gandhy. In all these cases, the state is claiming that these individuals were propagating armed struggle. But is there evidence to show the propagation of armed struggle? If you equate dissent with armed struggle, we are in dangerous territory. Innocuous incidents are being blown out of all proportion. This makes us look small as a nation.

 Questions are being raised about the probity of the legal profession too.

The legal profession was in the forefront of our independence movement. After independence, over a period of time, the legal fraternity has stopped introspecting on what is expected of them. It is all about plush offices, foreign travel… All this saddens me. We lawyers have forgotten that at one time we went to jail to fight British oppression. What is the last time our community raised its voice against violence against women or engaged with people living in conflict situations? As a community, our bar has become very self-contained and seems to be happy to be living in this cosy little zone.

(Rashme Sehgal is a senior journalist based in New Delhi)

Infochange News & Features, December 2012