Seeing justice as done

A heinous crime took place. The perpetrators were convicted and sentenced for life. After fourteen years there was a request for their release. Courts consented. Everything happened within the ambit of law. Except justice!

The matter does not end there. The release of convicts was publically welcomed and celebrated. To rub salt to the wounds, this judicial folly took place on the Independence Day. It is indeed ironical that the same society that demands death for rapists also ends up owning and justifying rape. These incidents somehow suggest that we are governed by a legal system that implements law without a sense of justice.

Most heinous crimes attract life imprisonment. In exceptional cases, the convicts get sentenced to death. Life imprisonment, as the term suggests, means that the convicts are put behind bars for the entire duration of their natural life. But many people see and understand life imprisonment as a jail sentence of 14 years. Not without reasons.

When a convict is jailed for a crime which attracts life imprisonment or death penalty then the appropriate government can commute the sentence of such a convict. But this can happen only after the convicts have served the sentence for 14 or 20 years. Here, the term appropriate government means Centre or State government, within whose jurisdiction the convict was sentenced.

The procedure for such release is laid out in section 432 of the The Code of Criminal Procedure. According to the section, when a request is made to an appropriate government for commuting the sentence then the government may, with or without any conditions, suspend the execution of the sentence or remit the sentence, wholly or in part. While doing so, the government may require the presiding Judge of the concerned Courts to state their opinion. The presiding judge in this case is the judge of the court which passed the sentence. The court provides its opinion to the government along with the reasons for such opinion.

Technically, there does not seem to be anything wrong with these provisions. But from the point of view of the victim, whose consent is not sought, this is nothing short of denial of justice. More so, when the convict displays no remorse and a section of society approves of the crime as if it was some sort of natural justice. In all such cases, government and the courts, in tandem, breach a basic tenet of law often quoted as “justice must not only be done, but must be seen to be done”.

Punishment is not a revenge of the state. Its key role is to act as a deterrent by establishing and reinforcing the fact that rule of law prevails. That anyone breaking the law would automatically attract the appropriate punishment, no matter what the social or economic standing of such a person is. For punishments to act as a deterrent, it is imperative that justice should always be seen as done. When ordinary citizens opine that justice is not being done then justice indeed is not being done, even though the provisions of law duly complied.

Enforcement of law does not automatically translate into delivery of justice. It is in this context that one can fully understand, and value the essence of the dictum that “justice must not only be done, but must be seen to be done”. There is an interesting story about this statement made by Lord Hewart, the then Lord Chief Justice of England. The statement was made in context of a court ruling that imposed a fine of ten pounds in the case of a minor collision.

A gentleman name McCarthy was driving a motorcycle and collided with another motorcycle that had a side-car. That motorcycle was driven by Mr. Whitworth whose wife was seated in the side-car. Both husband and wife sustained injuries in the collision and the police filed a criminal case against Mr. McCarthy. Mr. Whitworth also hired a legal firm to seek damages from Mr. McCarthy.

The matter was taken up for hearing in the court of Sussex. The court clerk, Mr. Langham, was also a partner in the law firm that represented the victim, Mr. Whitworth. On the day of the hearing Mr. Langham was on leave hence his younger brother acted as a deputy clerk, who too was incidentally a partner in the same law firm.

Once the hearing was over, the judges retired to their chamber to decide on the matter. The deputy clerk was also present in the chamber. The court ruled that Mr. McCarthy was guilty hence imposed a fine of 10 pounds.

Mr. McCarthy appealed against this decision. One of his grounds was the presence of the deputy clerk in the judges’ chamber. He contended that it was improper for the deputy clerk to be present in the chamber as he was a partner in the law firm that represented the victim.

The matter came up in the court of Lord Hewart. The judges of the lower court of Sussex filed an affidavit stating that although the deputy clerk was present in the chamber, he was not a part of any discussion and the decision was unbiased. The lawyers contended that the presence of the deputy clerk was at best an irregularity. The affidavit and the line of argument should have held the water but what followed was a historic judgement which is quoted globally even after 100 years have passed by.

On that historic day of November 9, 1923, Lord Hewart said that he accepted the statement made in the affidavit. He also agreed that the deputy clerk did not participate in the discussions pertaining to the judgement. And yet he quashed the conviction of Mr. McCarthy, stating that –

“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

He further observed that

“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

The other two judges of the bench concurred with his views, thereby issuing a landmark ruling which has become the basis of many other judgements. The dictum is viewed and understood as a fundamental judicial principle. The dictum requires that the legal system should only be free from interference but should also ‘appear’ to free from interference. The credibility of a legal system is of utmost importance because people will have faith in judicial system only if law appears to be lawful.

So when a sentence for a heinous crime, which qualifies to be the rarest of the rare cases, is commuted, not only is it a punishment for the victim but a disturbing glow sign that formally announces the failure of the justice system and falling down of a judicial principle. When such events happen, crimes not only get social sanctity but also make the executive and judiciary an accomplice of sorts. The loss is not just of the victim or civil society but of the entire premise that holds us together as a modern civilized nation state.

Doing away with the provision of law does not seem to make sense. But there is a possibility of minor adjustments that can make these provisions humane and ensure that these provisions are not misused for politics and by the privileged classes. Making consent of the victim, or victim’s family, mandatory for commuting a sentence could go a long way in ensuring that justice is seen as done. Simultaneously, the courts could also frame strict guidelines of conduct for the acquitted so that a crime does not get glorified in anyway, whatsoever.