Saturday, 5 January 2013

Unintended consequences

I have a serious issue with how public anger at recent events in India is being channelled.

Take for instance the demands for a quick and speedy trial of the 5 men accused of the rape and murder of the 23 year old student whose tragic case has become the focal point for understandable anger and widespread protests at women’s lack of security and of freedom from violence and fear.  

Calls for a quick trial are understandable but the cause of natural justice is far more important. Unless we are prepared to live under a system of rough justice at the hands of a baying mob, we need to tarry a bit and do it right. If justice for ‘Amanat’ is what we wish to see then we have to ensure the system is robust enough to deliver it. A quick trial and a speedy execution may satisfy the immediate demand that ‘something must be done’, but it will not solve the wider issue of the decrepit state of the criminal justice system in India. Indeed it would be in the interest of the politicians in charge to appear to give in to the public demand for quick justice in the hope that the protests die down and they can get back to ‘business as usual’.

The lawyers association in New Delhi has said that none of their members will represent the 5 accused. Their spokesman told NDTV that this was their way of showing support for the public anger at what happened.

But this is unprofessional and unacceptable behaviour. Justice must not only be done but must also be seen to be done.  How do we know that the 5 men currently in custody are indeed the men who carried out the rape and assault? How can we be sure that the real culprits have not got away? The police have lots of forensic evidence we are told but the evidence chain has to be established clearly before an open court and must stand up to scrutiny and challenge by the defence team. We are told that the accused men have confessed. That maybe so, but convicting on the basis of uncorroborated confession is dangerous. How do we know that in response to public anger, the police picked up 5 men and coerced or beat them into a confession?  A proper trial may take time but it will be better than a trial that leaves doubt as to the safety of a conviction.

The public are angry at the inordinate delays in rape and other criminal cases, especially where politically powerful men are in the dock. They may well look upon a lawyer acting for the accused as contributing to these delays. But consider this: the extraordinary delays that so bedevil criminal cases in India’s courts have nothing to do with the defence team doing a proper job, and everything to do with corruption, inadequate training, lack of resources and poor case management by judges.  

In any case the potential for delay must not be an excuse to compromise the quality of justice. If speed is all important then why not dispense with a trial altogether and take the police at their word. They say they’ve got the men who did it, they have the evidence of guilt, and what’s more they have a confession. Hang them now and be done with it!

But that is precisely a system that corrupt and powerful people can exploit; they can commit whatever crime they like – and many powerful people have been accused of rape, let’s not forget -  and then fix the system so that some poor hapless guy takes the rap for it. The perfect crime is not when the criminal avoids detection but when someone else is convicted.

And that is precisely why we need a robust system that allows the defence team to examine and probe the evidence so that there is a much better chance of not convicting in error.

We talk of the accused ‘being on trial’ but in reality it is the prosecution case that is being tried. Does it stand up to scrutiny? Does the evidence consistently and beyond reasonable doubt persuade us that the person accused is indeed guilty?   

To do anything less would be to place too heavy a reliance on the integrity and intelligence of the police and the criminal justice system. 

If we could afford  to do that then we might not be where we are and Amanat might have remained an anonymous student safely and securely using New Delhi’s buses however late the hour.


  1. Well argued case, Nagaraj, for the need to avoid the pendulum swinging to the other extreme. Clearly an India where the Justice system is reduced to a 'kangaroo court' is not what we should aspire for. I liked your phrase: "The perfect crime is not when the criminal avoids detection but when someone else is convicted."

  2. Thanks, I use the analogy of a criminal trial to get med students and doctors to think about type 1 and type 2 errors in clinical trials of new drugs. There to there is an interested party - the pharma company - that is keen for the trial to come to a certain conclusion. Like the public in a criminal trial, wanting desperately to see some one swing for it, pharma companies use an array of ruses effectively to fix the trial so that they get the result they want.

    Thanks for the comment, anyway.