Nirbhaya Verdict: SC And Delhi HC Did Not Cover Themselves With Glory

How can a civilised society accept the decision of the Supreme Court and the Delhi High Court that a violent criminal, convicted of a horrible crime, be allowed to roam free, without any control or supervision, merely because there is no “law” that permits this?

The last fortnight has been troubling for those who believe in the law taking its own course, and resulting in some form of justice. But neither the Delhi High Court (DHC) nor the Supreme Court (SC) gave us a sense of closure as they declined to deliver justice in a way that would be comprehensible to the late Jyoti Singh (“Nirbhaya”), or her hapless parents, and the collective national conscience that had revolted against the brutal Delhi gang-rape and murder of 16 December 2012. Some would argue that this was par for the course, because we are now saddled with a fairly dysfunctional justice delivery framework.

Indeed, this writer has been disillusioned with the state of affairs that prevails in our courts, the “temples of justice” (read this essay written on this portal a few months earlier). The article was published when the Supreme Court (SC) was hearing arguments in the case related to the appropriate method of selecting judges for the upper judiciary.

The SC struck down the National Judicial Appointments Commission (NJAC) Act, 2014, as well as the Constitution 99th Amendment Act, 2014, that amended Articles 124 and 217 of the Constitution, and proposed a new process of appointment of High Court and Supreme Court judges. The apex court reaffirmed its blind commitment to the collegium system of appointment of judges in the higher courts, and, as a result, the country is again stuck with a cosy and incestuous system of judges appointing judges – a system that has found no favour in any other country of the world.

Yet, when the Nirbhaya case came up before the Delhi HC, a few weeks ago, one hoped that a bench comprising a lady Chief Justice and another judge would do the right thing and uphold justice. A few days earlier, another judge of the HC had delivered a ringing verdict (in the National Herald case) that upheld the basic principles of corporate governance and ethics in public life.

However, the HC decided to deliver an appalling order that opened the doors for the convicted juvenile criminal to walk free. The Delhi Commission for Women (DCW) commendably chose the right and principled path, and appealed to the SC. There was a faint flicker of hope in the public mind that the SC would opt for justice and not the dry rules of existing law.

Here again, the letter of the law won over its higher spirit. What Justices Adarsh Goel and UU Lalit, constituting the two-judge bench, said while dismissing the petition of the DCW ad limine was a simple: “We share your concern, but our hands are tied by law”.

There we go again, the same old refrain about the law taking its course, the law that requires us to follow it and stand by idly when someone takes it for a ride. Even more galling, the same Supreme Court had delivered a judgment just a few weeks earlier, which would have told the bench hearing the Nirbhaya case what exactly should have been done. The relevant judgement is related to Civil Appeal No. 13940 of 2015, [Arising out of S.L.P. (C) No. 28415 of 2011], Lalaram & Others (Appellants) versus Jaipur Development Authority & Anr. (Respondents).

The judgement was delivered on 1 December 2015 by a bench comprising Justices V. Gopala Gowda and Amitava Roy, with the latter reading out the verdict. Readers will find the landmark decision here.

Normally, legal decisions, particularly in this part of the world, are tedious, laborious and dry as dust, apart from being impenetrably technical at times. Little effort is made to descend from the lofty heights where the justices reside. It is only legal luminaries who quote these texts to their confrères and the bench, in the course of hearings and submissions. In this case, an exception should be made and the relevant segments of this landmark decision should be reproduced for the benefit of readers.

Quoting the renowned jurist and legal expert Roscoe Pound, Justice Amitava Roy (for himself and his companion judge) lays down the guiding philosophy for judges who want to dispense justice. The subject area is the role of equity in the application of law and the influence that equity should have in legal decision-making.

Equity demands a “reasonable and just” solution of any individual controversy. It seeks the appropriate legal precept, whether legislative or traditional, that would guide the judge to a “just result”. Roscoe Pound stipulates that the judge-

…within wide limits should be free to deal with the individual case so as to meet the demands of justice between the parties and accord with the  reason and moral sense of ordinary men…The application of law is not a purely mechanical process and it involves not only logic but moral judgments as to particular situations and courses of conduct in view of the special circumstances which are never exactly alike…The cause is not to be fitted to the rule but the rule to the cause. Equity uses its powers of individualising to the best advantage in connection with the conduct of those in whom trust and confidence has been reposed…The certainty attained by mechanical application of fixed rules to human conduct has always been illusory…

The judgement then goes on to refer to our Constitution (“our national charter”) as a living and organic document that should not be allowed to remain static or become stale. Finally, the bench refers to the plenary powers of the SC under Article 142 of the Constitution for ensuring complete justice. The judgment contains a  salutary warning against reducing the Constitutional guarantees to “mere ritualistic incantations:”

Had the bench of Justices Goel and Lalit, on 21 December, or Ms Rohini and Jayant Nath of the Delhi HC on 18 December, taken into account the decision handed down by their brother judges and senior judges on 1 December, every single ground cited by them to do nothing would have gone for a six. How can anyone buy the argument that a violent criminal who behaved in the most depraved manner be allowed to roam free on the plea that no law permits the court to do otherwise?

The detailed rationalisation for this decision of theirs defies the elementary logic of justice, with equity not even anywhere in sight.

It is another matter that Parliament, almost immediately after this verdict, passed a law to precisely fix the problem of juveniles being released after three years in detention after committing terrible crimes, but surely the Delhi HC and the SC missed their chance to plug the gap of just a few days between the old law and the new one to do the right thing. If the murderer of Jyoti Singh does, at some point, relapse into crime once more, one wonders how the consciences of Justices Goel, Lalit, Rohini and Jayant Nath will respond.

The last word should belong to Justices Gowda and Roy:

The Supreme Court has been conferred very wide powers for proper and effective administration of justice. The court has inherent power and jurisdiction for dealing with any exceptional situation in larger public interest which builds confidence in the rule of law and strengthens democracy. The Supreme Court as the sentinel on the qui vive, has been invested with the powers which are elastic and flexible and in certain areas the rigidity in exercise of such powers is considered inappropriate… Thus, failure to discharge an obligatory duty defined by public policy, without any justification in disregard thereto, viewed in the context of the sacrosanct content of human rights in Article 300A, is an inexcusable failure of the state to discharge its solemn constitutional obligation, the live purpose for its existence.