Media trials create an atmosphere of pressure when heinous crimes are committed, which could affect the delivery of justice, Supreme Court judge Justice Abhay Shreeniwas Oka said on Saturday, February 1, during a webinar organised by the All India Lawyers’ Association for Justice (AILAJ).
Justice Oka said that the job of the judges was to examine the legal admissibility of evidence and whether the evidence proved beyond reasonable doubt that the accused had committed a crime.
“It is not the job of the judge to imagine and decide whether a crime has been committed,” the judge said. Arriving at a conviction due to the seriousness of the crime or under media pressure would amount to “moral conviction which has no place in the Constitution”. He said that Article 21 of the Constitution guaranteed the freedom of all citizens of the country, including the accused.
Similarly, while it was both the right and the duty of a citizen to criticise judgements, he urged the media to examine the legal grounds on the basis of which judges had granted bail or acquittals.
Without naming West Bengal Chief Minister Mamata Banerjee who demanded capital punishment for the RG Kar rape accused, Justice Oka said that while the “retributive theory” had traction among the public, people often forget the “object of punishment”. He said that while the appropriateness of capital punishment could be debated, “people cannot say what sentence must be imposed (for a crime).”
Delivering a lecture titled ‘Towards a responsible and reliable judiciary in India’, Justice Oka touched on several issues that affect the “reliability” of the judiciary in delivering justice to common people. He spoke of the role that advocates, judges, and the media play with regard to access to justice, not only for the litigants but also for the people accused of committing crimes.
On the role of the advocates, Justice Oka said that lawyers often file bulky pleas citing an unnecessarily high number of precedents set by various high courts and the Supreme Court.
He also said advocates often indulge in lengthy cross-examination that is often “counter-productive”. In one case that he had heard in the Supreme Court, an advocate cross-examined a witness for 95 days. “It is a matter of record. I am not exaggerating,” Justice Oka said.
In recent years, advocates have begun examining every sentence uttered by the prosecution witness. However, the duty of the cross-examiner was to dislodge the credibility of the witness, to bring out points of relevance so as to prove a case beyond reasonable doubt. He said that unless advocates cooperate with the judiciary, the delivery of justice would be affected.
The judge said that when he interacted with students at law universities, they often quoted the “tareekh pe tareekh” dialogue from the Hindi film Damini. He said that one of the reasons that court proceedings were prolonged was the non-appearance of witnesses.
He said that it was important to understand the reasons for this. In criminal cases, when witnesses did not appear in court, it might be because they were not interested. But he also pointed out that India did not have a witness protection system in place that can give witnesses the confidence to testify “without fear or favour”.
He urged advocates to be more discerning and responsible when seeking adjournments.
Justice Oka pointed out a tendency among lawyers to stay away from the courts for various reasons, including the death of a member of the bar. Losing one working day meant that between 500-1,000 cases in a lower court would not be heard and this in turn meant that 200-300 litigants who had made time for the hearing would have to suffer.
He also said that the lack of a framework on how to prioritise cases often led to judicial decisions that created the impression that the justice system worked for those who were affluent.
He said that people who could afford to, approach the high courts and the Supreme Court with pleas seeking to expedite the proceedings in their cases, but common people had to wait their turn. “The reliability of the institution gets affected,” he said.
Similarly, there was a “blanket policy” to give priority to the cases where litigants were senior citizens. But these could have “dangers of their own”, Justice Oka said, giving the example of choosing to prioritise a marital dispute of an elderly couple over a marital dispute of a young couple. “To increase the reliability of the judiciary, we need a policy framework (for prioritising cases),” Justice Oka said.
He pointed out that common people do not believe that the judiciary is independent. “Judges should introspect more. Why do common people and litigants have the impression that the judiciary is not independent? People feel that the judiciary has not performed up to the mark,” Justice Oka said, and called on judges and advocates to collaborate “to render better quality of justice for every citizen, every resident of the country”.
To a question from an advocate on the conduct of judges outside the court, Justice Oka said, “You’re right that there should be higher standards, we should maintain higher standards (outside the court). I am part of the decision-making process. For the next few months, I would prefer not to answer this question.”
On the failure of the collegium system to ensure diversity in the judiciary, Justice Oka said that as a sitting judge he would answer “as a student of law”. Maintaining that no system was perfect, he said that if one wanted to get rid of one system, then “it must be replaced with something better”.
