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Guilty Until Proven Innocent

If the title of this article confused you about the common law principle of the presumption of innocence and had you pondering on what in fact is the correct legal position, then you’re not alone. By no means does one question the reader’s intelligence. On the contrary, my fellow ‘mango people’ are perceptive, intuitive and extremely discerning. But at a time when the nation is surrounded by despondency and when scam after scam unravels, it’s easy to get swept away into believing what one hears repeatedly. Add to this the reach of 24/7 media and all the sensationalism that surrounds politics, politicians and everything connected to them, and it comes together like a kaleidoscope. But, it’s at times like this that it becomes particularly important to preserve one’s objectivity and scratch beneath the rhetoric.

At the outset, let’s note the law as it currently stands. The presumption of innocence of an accused is a legal presumption and should not be destroyed through a media trial. The Supreme Court has held this presumption as being a human right and held the invasion of this right as being impermissible. The Court notes the significance of the print and electronic media and also notes that media is the only representative of the public to bring to the Court’s notice issues of public importance including governance deficit, corruption and drawbacks in the system. Notwithstanding, the recent Constitutional Bench decision on media reporting noted that if in a given case the appropriate court finds infringement of the presumption of innocence by excessive prejudicial publicity, then the neutralizing technique of postponement orders, i.e. postponement of the media reporting of ongoing trials or matters that are pending administration of justice, could be adopted. In doing so, the Courts have attempted to balance the conflicting societal interests of right to know vis-à-vis another societal interest of fair administration of justice.

The objective here is not to provide a legal commentary, but to counter some arguments that emphasize that the current expose’s are not legal matters, but matters of political morality, propriety and public perception, all of which count in a democracy. Of course they do! But, if in fact a law has been breached and an illegality committed, then regardless of how the public views the issue, that matter can and must only be decided by the guardians of the law, namely the courts. One is free to form personal opinions and even share them, but unfortunately the final verdict cannot be passed by ‘kangaroo courts’ or on TV debates as that privilege is reserved for courts following due process. Yes, courts take time and the process is tedious, but allow no one to confuse you about their efficacy, ability to render unbiased decisions and their pivotal position as the sole gatekeepers of the rule of law. One argues emphatically that it is the rule of law that continues to hold our diverse nation together and any attempts to take justice into one’s own hands can have immeasurable and detrimental long-term consequences. One wonders why Team Kejriwal has broken from their past tradition of approaching court now that they have entered politics!

Yes, it’s time we acknowledge that all of this, on all sides, is only about politics. Someone correctly noted that politics is too delicate to be left to politicians. But our institutions are even more fragile. These institutions may not be fulfilling their desired objectives and may even be slightly dysfunctional. But, should we abandon them? Can we afford to? Do we have alternatives? If so, how can we be sure that the alternatives will work? What if they don’t? It’s good to experiment, but by doing so will we dent or damage our democracy? If we do, can the harm be undone?

The need is to overhaul our system, but the call of these self-appointed civil society guardians wanting to break down the system is cause for concern. Their current hyperbole may bring short-term changes, but has anyone, including this new brand of politicians given any consideration to the long-term consequences of their belligerent actions? Has anyone even considered the consequences of subverting our democratic process?

Of course, corruption is a cause of concern. One can’t take away the contributions of the Team India Against Corruption to bring the issue to centre stage. But, their radical approach, offensive manners and arrogance, my-way or highway attitude and lynch-mob style of functioning has always been questionable. Eye brows were raised when they operated as activists and before Anna Hazare distanced himself from them. And now that they have permanently donned the Gandhi hat, a symbol of politics, one is even wearier of their motives and attempts to project a Gandhian philosophy.

The debate is not really on whether questionable deals, regardless of which political party they belong to, need to be probed. Of course, they should be. But what’s of greater importance is who asks the questions, how we go about probing the alleged wrongdoings and who conducts the trial. If it’s done on the streets, it becomes a case of hit-and-run. But if it’s done through courts, it becomes the rule of law. The choice is ours and till such time we decide, we can continue watching the new season of the popular TV show “Big Boss.” And if we get bored, we can always flip channels to a news station and chances are that there would be some sensational press conference underway, which can compete with the entertainment provided by the popular reality show. Let’s stay tuned!

Satvik Varma is an advocate, corporate counsel & columnist based in New Delhi.

First Published in The Economic Times on October 22nd, 2012.



2 thoughts on “Guilty Until Proven Innocent

  1. Sir, I have read your beautiful write up in economic times today. In this melee you have rightly depicted the other side of the story. The rule of law must prevail, come what may.

    Though i would like to add few more points:

    1. The general hate towards political class is global phenomenon and there is nothing new here. It has also been noticed that the middle class which has cornered all fruits of development after the second world war is generally in the forefront to condemn the political class. May be they want to conceal their own sin and put all the blame on politicians (since they have cornered all fruits of development to the detriment of poor who are unable to have two ends meet, what to think of blackberrys in their hands). Still if kejriwal is bringing the issue of crony capitalism , funds transfer in private corporate sector to sister concerns etc. at the forefront, we must welcome it.

    2. On the sidelines we must also take note of the fact that due to the delays in criminal judicial system a common notion is that corrupt will go Scot-free in this nation. This notion has to change. The high and mighty must acknowledge that hiring senior advocates and paying them enormous fee will not result in their acquittal. The courts in corruption cases must ensure that at the trial level the case by any account is either disposed within four years of the filing of charge sheet or the person get acquitted. When we have a system wherein a person gets default bail if charge sheet is not filed within 90 days then why shall we not have a system that the court must deliver the verdict within four years of filing of charge sheet.
    One way to reduce the trial period can be that the witnesses who have to attend court from far off places may be examined by video conferencing facility which will straight away reduce bulk of the period in deciding such case. Now a days this technology is very cheap and a hall may be equipped with these facilities at each district headquarter so that a person in a town may come to nearby district and give his testimony to the judge who may record it by sitting at Delhi or Mumbai.
    Anand Mohan

    Posted by Anand Mohan | October 22, 2012, 10:13 am
  2. The IAC has adopted the tactic of exposing one big name from the world of politics, media and business a day – backed up with documentary evidence – to make the need for a Lokpal obvious. In that process, they will have the assistance of ordinary people that have a modern, technocratic vision for India but recognize that our social stratification makes it almost impossible to achieve that through electoral politics. I would like to conclude by saying that I feel the India International Centre (IIC) game is over. The sober discussions at IIC and similar venues that jholawalas and pseudo-intellectuals like you have been having over cups of tea – or something stronger – have run their course. This is because people like us who have played that game in the past are like the child in the The Danish fairy tale “Emperor’s New Clothes” written by Hans Christian Andersen and first published in 1837, as part of Eventyr, Fortalte for Born. When all the townspeople, wildly praised the magnificent clothes of the emperor who had actually come out nude in public, a small child said:

    “But he has nothing on”!

    I (and countless others) am that child.

    Posted by Bappa Mukherjee | October 29, 2012, 2:03 am

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