“We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice.”
These are the words of Justice Vinay G Joshi and Justice Valimiki S Menezes, in their noteworthy order acquitting Dr GN Saibaba, journalist Prashant Rahi, Mahesh Tikri, Pandu Narote, Hem Mishra and Vijay Tikri of all charges filed against them, almost all of them under the harsh provisions of the Unlawful Activities (Prevention) Act (1967), i.e., the UAPA.
In this piece, we consider some subtle notions of justice that are implicit and explicit in this far-reaching judgment.
Procedure is an Invaluable Protective Measure, Not an Incidental Inconvenience
A substantial part of the judgment deals with procedural violations that directly impacted the ‘valuable rights’ of the accused. These are the ‘mandatory provisions of law’ which the honourable judges note, were violated by the state, in prosecuting the accused.
To fully understand the implications of some of the observations that the judges made, we must remember that the law comprises both the set of legislations that the state has to enact, uphold, enforce and adjudicate on and the rules of procedure which the state must adhere to while doing so. These rules of procedure then, are not incidental but absolutely fundamental to the administration of justice. Indeed, in some senses, they are at the very foundation of justice. They are crucial to ensuring that the laws of the land are applied fairly and correctly, and they serve to check the possibilities of abuse and misuse of the law by the state, its agencies and functionaries.
In this case, the judges were particularly concerned with the fact that the lapses in procedure were not ‘curable’ because they violated the rights of the accused, and hence found that ‘the entire prosecution is vitiated’ on these grounds. Procedure is an invaluable protective measure, not an incidental inconvenience.
In fact, the procedural lapses, in this case, extend to the fact that the accused were tried and convicted by the lower courts, despite blatant violations of procedure in the collection of material and electronic evidence, and weaknesses in the presentation of witnesses and their statements. Therefore, the court’s finding of ‘failure of justice’, points to the fact that the case should never have been admitted in the first place. The matter should not have gone to trial in the lower courts, and, even if it did go to trial, the trial court should have found the accused innocent and acquitted them, instead of convicting them.
The phrase ‘failure of justice’ in this sense, though referring to the legal consequences of procedural violations, alludes equally to the failure of the judicial system’s obligation to protect and uphold the rights of the average citizen. But there is an even larger ‘failure of justice’ evident here. This is the failure to provide justice – understood here not just as upholding law or adhering to judicial procedure, but as a civic virtue and value, a manner of governance that grids the entire idea of rights. It is this subtle and invaluable understanding of justice that the astute judges have advanced. This implies it is vital that the state actively demonstrates to its citizens that it values and upholds this quality and that it will relate to its citizens on terms framed by this idea of justice. Unhappily, this hopeful ideal has receded almost into the never-arriving horizon.
When the State is Itself the Source of Such Injustice
The attrition or subversion of this idea of justice by the state erodes the citizen’s faith in the state as a guarantor of rights. Citizens – already in a vastly asymmetrical relation of power with the state – are left vulnerable to the unjust exercise of the massive power of the state and its representatives.
The extent of a person’s vulnerability to injustice and coercion is directly proportional to their marginalisation. And this marginalisation increases manifold once a draconian law like the UAPA is deployed against them. If one happens to be tribal or from among the minorities or the depressed castes, one’s vulnerability to violence and systemic violations multiplies. Access to robust redressal mechanisms is even more difficult than they usually are. Many political prisoners and falsely criminalised persons have disappeared into the convenient void of silence and darkness that is prison.
In the instant case, the fact that the case was admitted, tried and an order of conviction passed, despite the procedural violations, suggests that the state exercised unmitigated power in an excessive and motivated fashion. The increasingly muscular state appears fundamentally unjust and averse to the idea of justice as a civic value.
The unjust trial, suffering and imprisonment testify to the state’s failure to uphold precisely this idea of justice. As a result, there was unnecessary suffering and worse, the tragic death of one of the accused, Pandu Narote. The suffering of all and this particular death are also due to the failure to follow due process even by the prison administration.
These compounding failures of the state resulted in callous medical and administrative neglect which led to Narote’s death on 25 August 2022. The 82-year-old Jesuit Stan Swamy, was imprisoned and died in the same way. The medical condition of several of the acquitted – the consequence of the same inhuman neglect – has also deteriorated severely.
Now, if the state were to uphold, and hold itself to, the understanding of justice elaborated above, it would cognise another consequent set of injustices. These include a decade-long loss of employment, income and savings, that resulted from the earlier injustice of the unjust(ified) trial and conviction of the acquitted.
When the state is itself the source of such injustice – whether advertently or not – and therefore the cause of the suffering, it must, at the very minimum, compensate for financial losses endured and expected if it is to present itself as a just state. In other words, it must compensate the family of Pandu Narote and offer suitable medical treatment to those like Dr Saibaba whose health has been destroyed by its unjust actions. It must make amends for taking away a decade from the lives of its victims and their families.
The sense of ‘failure of justice’ must be extended to include the fact of these losses and sufferings.
There is Little to Ensure That the State Apparatus Will Be Accountable
Finally, this case has foregrounded an important lacuna in the judicial system. The state uses the judicial system to hold its citizens accountable for the violation of the laws that it passes and enforces. It does this through penalties that may sometimes be severe. But there is little to ensure that the state apparatus will itself be accountable to uphold the rules – the ‘mandatory provisions of law’ that the judges noted – by which it will administer the law.
Consequently, the agents and agencies of the state are relatively unaccountable for the consequences of the unjust actions they perform in the name of the state. Such impunity, whether tacit or statutory, effectively encourages state functionaries to violate the rules and laws if they deem it necessary and/or convenient, regardless of the consequences to the victims of those violations or to the cause of justice.
Effective impunity or indifference to statutory measures that recognise and enforce accountability show lawmakers and law-enforcers of the state as themselves above the law. This is the definition of an unjust state, and it is a patent violation of Article 14, and other provisions of the Indian Constitution that guarantee equality before the law.
It is then incumbent upon any state that claims to take justice to heart, to also initiate proceedings against those of its agencies and functionaries that were responsible for the injustice meted out to the acquitted. These principles of accountability must be applied in all such cases, including the Bhima-Koregaon case and the CAA cases. As importantly, the Indian state must repeal laws like the UAPA, which in letter and in spirit, facilitate state overreach and the drastic abrogation of the constitutionally guaranteed rights of its citizens to various freedoms.
(Karen Gabriel teaches English at Stephen’s College, Delhi University. PK Vijayan teaches English at Hindu College, Delhi University. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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