JUSTICE | 17 MARCH 2013 | Gautam Patel
Allowing, even by inaction or inattention, the death of one of the accused in the Delhi gang-rape case is an assault on the justice system.
Ram Singh, the prime accused in last December’s ghastly gang-rape in New Delhi, is said to have hanged himself from a ventilation grill in his cell in Tihar Jail. The officials call it suicide, but the improbabilities are impossible to ignore. There were other inmates in the cell. None, it is claimed, heard or saw anything. There was a guard on duty outside the cell, which has a grilled door through which the entire cell is visible. The guard saw nothing though, in the normal course, he’d have walked past this cell at least five times between the time Ram Singh was last seen alive and when he was found dead. The ventilation grill from which Ram Singh is said to have hanged himself is much higher than he could have reached, given his height. He had an injured right arm. There are far too many questions here. None lend themselves to a satisfactory answer.
For a day, and just for a day, before it was eclipsed by matters of greater import to the people who seem to be able to decide these things for us, the news occupied our television news channels and the front pages of our dailies. Reactions varied, but the most appalling were the ones in tweets and mails running along the television tickers, that claimed that ‘justice has been served’, that ‘there’s one rapist less’, that he got what he deserved.
What happened in Delhi last December was horrifying beyond imagination. It should never have happened, and that it did happen, and in the way it did, and the public responses that followed should have been sufficient indicator of what is now at stake for all of us. The incident was the immediate trigger for a long overdue look at overhauling the criminal justice system. A sterling report came through in record time. Reading the report, there is little doubt that three jurists on the committee and their team were all impassioned and determined to see justice done, to help set in place a more balanced and just system. One might cavil at some recommendations and argue even that the Committee paid insufficient attention to cases of false complaints and made no provision for these; but that this was a major step in righting a historical wrong that is perpetuated daily cannot be denied. The government too, acted with uncommon despatch in introducing a Parliamentary bill, whatever its merits or demerits.
These are institutional responses, and institutions have a sense — sometimes perhaps not as acute as it should be — of gauging what needs doing and when. Institutional urgency is not, of itself, always populist. Responding with alacrity to a grotesque situation that cries out for reform is not populist if that response does not pander to a public thirst for revenge and proposes, instead, to correct systemic imbalances; speed does not always imply thoughtlessness, and to dismiss the government’s bill only on that basis is naïve.
Indeed, the institutional responses have been very different from those on social networks and in the media. These show a growing societal impatience with our justice system that is as frightening as it is dangerous. People only talk of the judicial system’s delays and moribund procedures, never of the things it does achieve in the face of inhuman workloads and abysmal manpower (on which more on another day). Slavery may have been abolished in law but it seems to be alive and kicking in the judiciary, the only difference being that in the judiciary you actually volunteer for slave duty.
By definition, a lynching is an extrajudicial execution (usually by hanging); bypassing the justice delivery system to get to an immediate result that satisfies the mob.1 A popular response to extreme situations or incidents — a response that should cause great worry — suggests that all we need to do to achieve ‘justice’ is to get to a predetermined result, and not worry too much about the route there. Getting to the what without minding thehow is nothing but a lynch-mob mentality, and it is now the defining trait of those of a certain stripe. The class has different forms. Social media is the natural habitant of one such form, also identifiable by its incapacity for anything but the most bovine thought, its persistence in substituting personal invective for argument, its inability to tell reaction from reason, protest placards from profundities. Given its additional inability to go much beyond 140 characters of what masquerades as thought and discourse, this type is, while irritating, generally harmless. Public outpourings of rage and grief are understandable — it is very difficult to resist the temptation of countering a monumental tragedy and horror by doing something equally barbaric.
Far more dangerous and insidious is the second type, the one that comes at us night after night on prime time television news broadcasts, hectoring, inquisitorial and judgmental. An anchor much given to screaming the most mundane headlines (and even the day of the week), once said in another context that his channel had “irrefutable documentary proof” of somebody’s guilt or culpability. Did he? What he had were some pieces of paper. Did these constitute proof in law? Were those pieces of paper admissible? Were they even relevant (yet another legal test)? Is there one kind of “proof” for 9 pm television and another kind for law? Without any of this being examined, somebody or the other was pronounced, at least by necessary implication, guilty. There remained only the question of the sentence, the trivial stuff that can well be left to judges after the serious grunt work has been done and dusted on national television. Why go to court when you can just turn on your TV set?
There is something about this medium that fertilizes imbecility. Another famous TV show host with claims to a long pedigree and a foreign degree once asked one of India’s most pre-eminent criminal lawyers how he could justify representing someone he knew to be guilty. The lawyer’s response was epic. I am not a court, he said, and neither are you. Guilt or innocence is for courts to decide, not me, and certainly not you. The host did not seem to be able to wrap his head around something this basic, his foreign degree notwithstanding. The perils of television mob-rule should be apparent; in this forum, where there are no rules and no standards, or are just made up as we go along, anyone could be found guilty of anything. Aayushi Talwar’s parents have been adjudicated guilty of her murder. Why are we bothering with a trial?
Indian society is no stranger to the kangaroo court culture. Mobsters do it, deciding matters of unrepaid loans and property boundaries. Local village councils dispense their own perverted forms of justice to uphold ‘honour’. Policemen attempt to mediate and arbitrate civil disputes. Community leaders are often called on, by popular demand, to decide these matters. In many cases, these ad-hoc kaazi are forums of choice, not compulsion: they are quick, they are accessible, and it matters little that the person deciding these issues has no background in law but is trusted to do what is just, fair and right. That, really, seems to be the key: a matter of trust. It is reasonable to expect newspersons to know better and to do better. When news stations turn themselves into glorified kangaroo courts — j’accuse seems to be the only guiding rationale — and are accuser, judge and jury all rolled into one, what we are being told is simply this: that our judicial system is useless, that the third limb of democractic governance has failed all of us, and that it is therefore now up to the Fourth Estate to don the mantle. This is, of course, self-serving, rank nonsense. Our embattled judiciary has monumental arrears, not because there are only historical cases, but because each day of each year more and more litigants choose to come to court. How this can be said to be an indicator of a loss of confidence in courts, or justify the extra-judicial antics of prime-television, is an enduring mystery.
This is where the trial of Ajmal Kasab redounds to the credit of the judiciary. Here was classic fodder for a lynch-mob. The institutions stood firm. Kasab was given a trial. There are those will say it was unfair, but that is inaccurate. The trial court’s handling of the matter was not just text-book — it is the text book.2 There was no fudging of evidence, no slurring over of inconveniences or the facts, no distortion of the law, no delay. It is impossible to say that justice was not served or done or that, in the face of the atrocity that was 26/11, a day on which so many of us lost friends and colleagues, and when a shorter route to harsher punishment might even have been excusable, the judicial system did not provide ample reason for a re-affirmation of our faith in it.
There is far more at stake in the Delhi gang-rape case than the fate of individuals. Can our system respond in an appropriate and just manner to such cases? What must we do to ensure the safety of our citizens, and what form should the remedies we must provide take? What is the value of a particular form of punishment?
And most of all, this: that the measure of any just society is not how quickly it deals out an extreme punishment, but how evenly it deals with those who stand accused of the most heinous crimes. This is a collective trial of our society. Allowing, even by inaction, one of the accused to be killed like this robs us all of a chance at redemption.
- Open letter to Chief Justice Bombay High Court on Fraud Nirmal Baba (kractivist.wordpress.com)
- #DelhigangRape – Death reveals dark side of Indian detentions (kractivist.wordpress.com)
- #Delhigangrape: Prime cused Ram Singh Commits suicide in Tihar Jail #Vaw (kractivist.wordpress.com)