Justice, Not Just Rule of Law

Hands on prison barsA  MAN SPENT  ALMOST  A year in  a Telangana jail though he was not convicted. He was only ‘suspected’ to have stolen a few sarees. A police official thought it was a case fit for arrest under the Preventive Detention Act.  It was only after a court order that he was released.

Releasing him was rule of
law. A democratic, civilised, nation is supposed to follow rule of law. But could justice be done in this case? No power on earth can bring back the year he had lost.  No compensation paid to him can be adequate. The officials responsible – the policemen who filed the case under PD Act, the superior who did not review it, the prosecutors who did not question it – all go scot free.

Should they all be put in jail for the same period for which he was incarcerated? Many may say yes, though it does not undo the injustice.  A  basic principle of law is ‘let a hundred criminals go free, but let not a single innocent be punished.’

Only the first part of the principle is followed: hundreds go unpunished for obvious crimes as they have clever lawyers.Many innocent still languish in jails. Lawyers cost money.

The letter of the law, and not its spirit, is followed. Every person is considered innocent unless proved otherwise. Clever lawyers can prolong the process of such proving to decades, to subvert the very process of law, so they can stay free and, perhaps, commit more such crimes.

The number of crimes committed by those who roam free because of bail is so large that it may cast doubts on the impartiality of courts. Loose tongues whisper about corruption in the judiciary – the last bastion of hope and honesty in the country. If law makes it difficult to get bail, the victims will be innocent people. Lawyers always show the crooks a way out.

The post about lawyers and liars (Lawyers Are Not Liars, March 9, 2017) made a lawyer friend angry. He said without lawyers the very process of law could be distorted.  They go by rules, not ethics or propriety which are subjective.  So justice can be denied to people.

The friend pointed out that lawyers defend even hardened criminals and terrorists so that due process of law is followed and they get punished only for their crimes,  nothing more. If that was not done there could be media trials or kangaroo courts. People’s emotions can be worked up to make anyone appear guilty and suffer punishment even when innocent.

That is why courts appoint lawyers for those who cannot afford or ‘Amicus Curiae’ (Latin for ‘friend of the court’) when complex legal issue are involved. Often people are infuriated when lawyers plead the cases of terrorists, rapists and known criminals. Rajkot Bar Association in Gujarat had recently passed a resolution hailing the arrest of two brothers for ISIS links. They could not get any lawyer in the district to plead their case.

In 2010, Justice Markandey Katju (now retired) and Justice Gyan Sudha Mishra of the Supreme Court deplored the trend of district bar associations adopting resolutions asking lawyers not to appear for some accused, for one reason or the other.

“Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee and the lawyer is not otherwise engaged,” the order said. The lawyers “cannot refuse to appear for accused whether they are terrorist, rapists, murderers or any others as such refusal would be a violation of the Constitution, Bar Council norms and tenets of the Bhagavad Gita,” the Bench held.

However, no law lays down how long a case can go on, limits adjournments or lays down the grounds on which they cannot be sought. So cases can go on and on, even for decades.

Years ago, a friend used to wonder why people should worry about or build houses at all. “Go and occupy someone’s house. Courts will take a two or three decades to evacuate you and then you can occupy another house,” he used to say. That is the reason why, in many states, a ‘profession’ of getting houses vacated has sprung up.

If courts go by legal hairsplitting and delay justice, people will find ways to get it.

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