Delivering the Rakesh endowment lecture in Chennai on Sunday, former Chief Justice of Orissa High Court, S. Muralidhar, said, we live in challenging times when there are persecutions, increase in polarisation on grounds of race/caste/religion, growing inequalities with the poor getting poorer, mass spontaneous protests by the affected people and the rule of law being made a mockery by dictatorial regimes, said.
The United Nations Development Programme’s recent Human Development Report talks about the ‘democracy paradox.’ It refers to tyrants getting elected through a democratic process. They, then continue ruling over you making a complete mockery of democracy and the rule of law, he added.
He went on to state, “This is something that Plato, the Greek philosopher anticipated several thousand years ago. For Plato, tyranny was the final stage in the perversion of the State... The tyrant’s progress starts with seemingly good intentions as a representative of the people. Plato thus assumes that a tyrant is popular at first, or rather a popular leader is a nascent tyrant.”
“More now, than ever before, is the need to reaffirm our faith in humanity and in ourselves as a human race, and to find strength to rise above these challenges. It is the time for all of us to reassert the basic values of a good life and reaffirm the faith in the constitutional values of equality, liberty; freedom of thought, expression and belief; the right to dignity and above all, fraternity.”
He said, the topic of the lecture — ‘Guilty Till Proved Innocent - Dark areas of criminal jurisprudence’ — was in the context of growing instances of weaponization of law and deprivation of people’s fundamental rights. And also that, around the world, law was being used as an instrument of oppression and abuse in the hands of powerful and dominant groups who seek executive control, through elections, to target their opponents.
Citing instances of gross human rights violations in the United Kingdom, United States and India, he said, in each of those instances, persons were wrongly detained for crimes that they did not commit and suffered incarceration for over a decade losing the prime years of their lives. “These cases have turned on its head the fundamental tenet of our criminal jurisprudence that a person is innocent until found guilty,” he remarked.
He listed out special criminal enactments like Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention of Terrorism Act (POTA) and Unlawful Activities (Prevention) Act (UAPA), which presume the suspects to be guilty, and shifts the onus on them to prove that they were not guilty, make statements made to the police admissible in evidence, provide for longer incarceration even if the police fail to complete the investigation within a reasonable time and also make obtaining of bail next to impossible.
Mr. Muralidhar pointed out that these harsh provisions had spread to laws related to economic offences also. Such laws had not helped in reducing instances of crimes either. “The conviction rates are abysmally low. If you compare the number of persons who are arrested as against the number of persons who get convicted, it is as low as 2.8% in UAPA cases,” he said.
He asked law students to not get carried away by claims of the three new laws — Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam — which would replace the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, of bringing about a dramatic change, and the claim of them having been decolonised. “Nothing of that sort has happened,” he asserted.
Speaking of bias, he said, “There is a huge bias in the administration of law. Just as in the United States, where there is over-representation of people of colour in prisons, in India too the percentage of Muslim undertrials in jails is 21.9% whereas their representation in the country’s population is only around 14% or so. Likewise, the Scheduled Castes too had a high representation of 21.6% and the Scheduled Tribes - 12.4%.”
Further, listing out the major inarticulate premises for enacting harsh laws, he said, people in power think that the lawlessness of criminals could be dealt with best by State lawlessness and that torture had always worked as a main tool of investigation. There was also a thought that the judiciary could not be trusted to get it right and that in any event, the judicial procedures were too long drawn and uncertain.
He also told the gathering that positioning the rights of the accused versus the rights of the victims, to justify human rights violations against an innocent, was a wrong equation. “One doesn’t score out the other. It is not a zero sum game. You have the rights of the accused and you have the rights of the victims too. You can respect both. No victim will feel satisfied if a wrong person is put in jail,” he explained.
“We need to be an informed public that will stand up to injustice,” he urged and laid stress on ensuring the independence of the judiciary not just at the level of the Supreme Court and the High Courts but also at the level of the judicial magistrates too since the latter were the ones who dealt with the suspects at the very initial stage of arrest and could prevent a wrongful prosecution.
Later, answering questions from the gathering, he said, lawyers must imbibe constitutional values at a personal level. “If you have compulsions like I am a vegetarian and so, I will not deal with cases of non vegetarians, you cannot be a lawyer. You must believe in secular values. You must believe in constitutional values... Practise these values in the Bar. Don’t allow the Bar to be captured by forces that don’t believe in constitutional values.”
Rakesh Law Foundation, instituted by senior advocate N.R. Elango in memory of his son who died in a road accident in 2022, had organised the lecture in association with Roja Muthiah Research Library. Madras High Court judges Anita Sumanth and N. Anand Venkatesh; former judges Raja Elango, C.T. Selvam and G.M. Akbar Ali; Higher Education Minister K. Ponmudy and N. Ravi, Director, Kasturi and Sons, participated.
