Justice must be seen as done


For the masses, as opposed to intelligentsia, it’s imperative that justice must be done and also seen as done, writes Gajanan Khergamker.

The gang-rape of a female physiotherapist in Delhi was the trigger for the row of disasters that occurred in the recent past. That it was followed by emotional outbursts in the Parliament with MPs ‘demanding death penalty for rapists in feverish pitches’ was expected; a rhetoric peppered with theatrics for the galleries was a given considering the occasion.

Erstwhile rape law was deliberated

What was conveniently ignored was that the law on rape, as on every other issue, was laid down following exhaustive legislative deliberation in Parliament by the MPs themselves. That, however, does not pre-empt the ministers from swiftly positioning themselves as torchbearers of public opinion at times of crisis and dramatically bay for ‘much-needed change’ at the drop of a hat. They, predictably, attributed little to Justice Verma panel while changing the law.

When a section of the youth, governed by the very laws they indirectly create, decided to ‘Campaign for change’ near Delhi’s India Gate, the Delhi police clamped the all-too-familiar Section 144 of The Code of Criminal Procedure on them. The orders were plain and simple: The protests had to be silenced, at any cost. So, the police used teargas, water cannons and lathis on the protesting youth that comprised unarmed girls. As many as 143 people that included 78 police personnel were hurt in the lathi-charge that followed. The prohibition orders were swiftly lifted following a colossal backlash from the media and irate public alike.

The media was banned from the site and nine metro stations were swiftly shut to prevent protests against the Delhi gang-rape at India Gate. Among the slew of banners that flayed the gang-rape and police protection, one said it all: Reduce VIP Security. Provide More Security For Us (Girls). This revealed just another instance of the violation of the Rule of Law that happens so very often in India.

“The King is subject to the law and the laws of Parliament to be void if in violation of common right and reason,” said Lord Chief Justice Coke before being transferred and ultimate dismissed from the bench. He was then endorsing the 2,000-year-old view formulated first by Aristotle of the Rule of Law being “fundamental” to democratic order. In modern sense, the Rule of Law owes greatly to Professor AV Dicey who proposed the Supremacy of Law meaning all persons, individuals and government were subject to law; a concept of justice that emphasised interpersonal adjudication; absolute restrictions on discretionary power; doctrine of judicial precedent; common law theory; prospective legislation; restriction on exercise of arbitrary power by the executive and a moral basis for all law.

The shocking lack of safety of its citizenry when perceived against the backdrop of smugly secure politicians is a flagrant violation of the very basics of the Rule of Law. The arbitrary clamping of a seemingly-archaic Section 144 of the CrPC to silence a peaceful protest, threatens the security of a nation’s common and their democracy.

However, it may only seem fair to point out here that statistics indicating Delhi has the highest incidence of rapes as sections of the media often castigate it as the ‘Rape Capital,’ are but knee-jerk hyperboles. Delhi does have the highest per capital rapes but only of the nation’s major metropolitan cities at 2.8 per 1,00,000 citizens.

Different rules for VIPs

Another source, The Wall Street Journal’s Economic Journal maintains Durg, Bhulainagar, Chhatisgarh register almost twice as many rapes with 5.5 per 1,00,000 followed by Bhopal in Madhya Pradesh. It has been suggested that India’s “administrative agencies do not perform well (ranking 79th) and the civil court system ranks poorly (ranking 78) mainly because of deficiencies in the areas of court congestion, enforcement, and delays in processing cases,” according to a ‘Rule of Law Index 2012’ report then bought out by World Justice Project.

Although the parameters of the journals and reports cannot be taken too seriously, the string of recent occurrences challenging public confidence in the system only underline the need to uphold the Rule of Law. It may be pertinent to note that immediately following the terror attacks on Mumbai back in 2008, the city police placed barricades around ‘sensitive structures’ to control vehicular and public movement. The move, then seemed justified, considering a surge in public curiosity needed to be controlled for security reasons. That said, over the years, the barricades went on to become permanent fixtures around the zones, particularly the lanes adjoining Taj Mahal Hotel areas and Gateway of India creating immense inconvenience to locals and touring visitors alike.

Preventing passage for inordinate periods of time for the common man seemed out-rightly excessive. That the decision to barricade a populous Gateway of India zone could backfire in the face of an eventuality like a bomb blast or an act of violence in the closed space, as has been witnessed in the past and a public stampede was a real and imminent threat didn’t matter.

The Rule of Law is regularly flouted when VIP visits are preceded by a swift removal of barricades, however temporary, to permit smooth vehicular movement. Once the visit’s over, the barricades are put back in place irrespective of the inconvenience caused to the common man. In the absence of a notification or an order permitting or detailing the placement of barricades, the move is outright excessive.

So, while on the one hand, hawkers in the zone are booked swiftly for occupying public space to sell their wares, the police get away with blocking one side of the road with barricades to provide ‘security’ while the Taj Mahal Hotel places permanent ‘flowerpots’ on a substantial section of the public road along the other side preventing passage again to provide ‘security’.

The paradox of India

The common man, on his part, is literally forced to weave his way in and out of barricades and all at a public place earmarked for tourism – The Gateway of India. The National Commission to Review the Working of the Constitution in India rightly noted, “The paradox of India, however, is that inspite of a vigilant press and public opinion, the level of corruption is exceptionally high. This may be attributed to the utter insensitivity, lack of shame and the absence of any sense of public morality among the bribe-takers. Indeed, they wear their badge of corruption and shamelessness with equal élan and brazenness.”

According to the United Nations, the Rule of Law, “… refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”

The State will need to mend most of its act to ensure that the Rule of Law percolates through social, political and economic layers of society.

It is imperative that the law holds good for one and all and does not, in any way, favour the rich and powerful. Now, that is something that the law-makers read legislature must ensure in letter and spirit. Justice must not only be done, it must be seen as done too, to be able to achieve its true objective. Now, that is a tall task, but one that is just right for an ideal democracy.

Gajanan Khergamker

Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.