Unbecoming conduct

On 26 December 2001, a woman and her 13-yearold daughter were allegedly attacked and gang-raped by eight young men from Sovima village near Dimapur, the cultural capital of Nagaland. The accused youths first overpowered the driver of the auto rickshaw the mother and daughter were travelling in, and then took the victims to the old airfield at Sovima and raped them. Word of the incident spread like wildfire in the area, even as women came out on the streets to protest the rape. The police arrested all eight accused within two days but by then the situation had stirred the public to an unprecedented level of rage.

Angry protest marches and public meetings were held. At one such, in the second week of January, some speakers from non-governmental organisations demanded that the administration hand over the accused to the public so that they could be paraded naked through the city. Reacting to the public hostility, Horangse Sangtam, the Naga Council chairman, submitted a memorandum to the Deputy Commissioner of Dimapur appealing that the severest legally possible punishment be given to the accused. Sangtam's memorandum also asked that authorities prevent lawyers from representing the defendants. In addition to this, several women activists severely criticised lawyers who represent accused rapists out of, what they believed to be, exclusively monetary persuasion. Tiala Sapu, president of the Naga Women Society, Dimapur, further alleged that lawyers openly lied in court to gain rapists their freedom, an opinion that drew the ire of many lawyers in the state. The Dimapur Bar Association resolved in an emergency general meeting to withdraw all legal advisors engaged with NG0s. Nonetheless, giving in to the pressure from public sentiment, the association decided not to represent the accused in this particular case.

This sequence of events raises compelling and uncomfortable questions about the relationship between progressive social campaigns and the principles of jurisprudence and justice. Liberal jurisprudence prescribes well-defined procedures to be followed in administering criminal law and justice. Among others, the accused is presumed to be innocent until proved guilty; the proof of guilt, besides being beyond reasonable doubt, must be judicially established through tangible, legally admissible evidence. Besides, the accused is not obliged to give self-incriminating evidence and has the right, irrespective of the nature of the crime, to legal representation. More importantly, punitive justice must be proportionate to the crime and can only be administered by the legally designated authority in accordance with prescribed procedure. These are well-established principles necessary to protect the individual from the juridical and enforcement agencies. They are just as necessary to protect the individual from the public and to insulate the processes of justice from the mechanics of society.

In the reported instance, the accused have not only been pronounced guilty outside the court, but that too even before the evidence has been submitted to, let alone examined by, the judiciary. They have been denied the right to legal representation through civic pressure, and in the process lawyers' rights to practise their profession freely have been impeded. In addition, the demand that they be handed over to the public is tantamount to equating popular justice with juridical justice and undermines the principles of proportionate punishment and the due process. In short, the modalities of justice seem to be shared between the duly constituted legal and judicial authorities and the public at large operating through non-official civic organisations. Leaving aside for the present the guilt or otherwise of those accused in this particular case, as a rule justice is bound to be miscarried if it is left to be decided by popular opinion. Through the prism of pure liberal jurisprudence it would appear that the established principles of dispensing justice are under threat from determined civic activism.

However, problems of this order are merely symptoms of a deeper and larger malaise that lies on the other side of the fence. How valid is it to view the practicalities of justice from just the prism of a purely theoretical jurisprudence, considering that the loftiness of its intent is rarely to be found in the mechanisms of its practice in illiberal South Asia? Why do the forms of civic activism that de facto contradict and undermine liberal jurisprudence emerge in the first place? The answer to this must lie in the maladies of the justice system and its methods. The abstract virtues of liberal theory are not sufficient to put a gloss on the frequent duplicities of its institutional procedures. Nowhere is the discrepancy more evident than in the legislations that affect ordinary members of the public in everyday situations.

All too often the travesty of justice lies in the anomalous laws governing specific crimes. In the case of rape and other sexual transgressions, where guilt, to begin with, is difficult to prove, the law is antiquated, based on conservative assumptions and prejudices, and has an inbuilt tendency to favour acquittal. Add to this a police force that is male-dominated and, in most part, prone to hobnob with the criminal classes, and whatever little evidence of the crime remains, and on which the slim hope of a conviction rests, can be expected to vanish. The situation is compounded by a largely conservative judiciary, which has all too often placed on record, in decision after decision, its view that rape is provoked by the purportedly "unbecoming conduct" of the victim. And since the law practically grants reprieve to the accused ab initio, legal representation is easier to come by for the perpetrator than the victim. In effect, in a rape case it is generally the rape victim who is on trial.

In the circumstances, when even the procedures of justice are not available to the victims of crime, and the judicial process is not immune to orthodox social mores, the pretence of securing the principles of jurisprudence from civic activism is meaningless. Clearly, the disposition of the law and the operation of the judicial system are calculated to provoke, in extreme instances, the rejection of the duly constituted system. In effect, jurisprudence has first to be secured from its own internal infirmities before justice can be saved from public interference. In Nagaland, which has been debilitated by military conflict for the last five decades, the organs of the Indian republic have through heinous acts of omission and commission eroded their own legitimacy. It is not surprising that the civil agitation in the state against the Sovima rape did not demand immediate and efficient action by the administration. Instead, it actually influenced to some degree the judicial process, besides of course asserting the public's right to award punishment as it saw fit.

This makes for a piquant paradox. Nevertheless, trial by the public is no substitute for judicial trial and the question that arises is whether the liberal model can meet the requirements of traditional societies like those of South Asia, which it has been grafted into. Judicial systems across the region are in crisis; burdened by, outmoded laws, self-serving judges and corrupt enforcement mechanisms, they are now increasingly coming under attack from various quarters. It is customary for the higher judiciary in typically supercilious fashion to regard the judicial crisis as one originating in and restricted to the lower courts. However, the recent conduct of the Supreme Court of India concerning two different, high profile mass issues will suffice to prove just how deeply entrenched the problem of illiberal attitudes is even in the higher judiciary.

Over the last few years both the Sardar Sarovar Project and the Ayodhya temple issue have repeatedly come up for hearing in the Supreme Court. The former involves the construction of a series of dams that will displace thousands of the mostly poor and marginalised in the submergence zone of the reservoirs. Since the rehabilitation of dam oustees has not been convincingly addressed either administratively or judicially the matter has attracted widespread attention and public protests. A few months ago, in one of the most egregious instances of judicial expropriation on behalf of the rich farmers who are the primary beneficiaries of the project, the highest court in India endorsed the decision of the project authorities to increase the height of the dam. The fate of those who will thus be deprived of their livelihood was not among the court's concerns. And faced with criticism for its unconscionable decision, the judges responded by admitting contempt proceedings against some of the leading opponents of the project, including the Narmada Bachao Andolan leader Medha Patkar, lawyer Prashant Bhushan and writer Arundhati Roy. The court, in fact, went so far as to lower its dignity by demanding that Roy desist from criticising the courts decisions.

In sharp contrast, the apex court which displayed such indecent enthusiasm in depriving people of their land and livelihood, has been stricken by an obsequious paralysis when it comes to issuing a ruling on the status of the disputed site at Ayodhya, vacillating on one count or another every time the matter surfaces for hearing. More than a decade has passed since the temple controversy came into prominence and in all these years the court has been unable to summon the necessary vigour to hand down a conclusive ruling. Meanwhile, spiritual lumpens associated with the ruling party in New Delhi, and their political henchmen in the government have run amok, making offensive statements about the inapplicability of court orders in matters of faith.

A court overly attentive to its own prestige could not have found a larger and more appropriate crew of contemnors to vent its anger on. Instead, it chose to ignore all the assaults on its dignity, such as it is. Perhaps the court is sensitive to the possible repercussions of its ruling. If that is indeed the case, the court's extreme concern about political violence is at odds with its extraordinary indifference to the fate of the people it has displaced from the vicinity of the Sardar Sarovar dams and condemned to virtual destitution. Whatever the reason, it is clear that justice in India is not to be readily had from the courts unless there is a lot of influence to be peddled and favours to be curried.

The discrepancies in the Supreme Court's conduct are too stark, too numerous and too symmetrically aligned to power and influence to be either ignored or regarded as accidental outcomes. If the crisis of legitimacy stretches all the way from the apex court in the national capital to the lower court in the boondocks, there is little reason for any sentimental attachment to liberal concepts and institutions of justice, particularly among those whose lot it is to be at the receiving of judicially dispensed injustice. The Naga episode is just one of the numerous instances where segments of society selectively secede from the ambit of judicial jurisdiction.