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Persecuting victims: Justice for the emotionally overblown

Ranjeev C Dubey     October 7, 2015

Ranjeev C. Dubey, Managing Partner of N South
Long before Tarun Tejpal's legendary libido unfairly dented her credibility; Tehelka's Shoma Chaudhury devastatingly demolished CBI's case against Arushi Talwar's parents back in June 2013. Avirook Sen's recent book on the subject expands substantially on her critique without necessarily unearthing a great deal of new data. What neither Chaudhury nor Sen attempted to do is satisfactorily explain why any criminal court would base a conviction on this incredibly inventive story of cross-class puppy love and honour killing.

After 35 years of law practice, though, I must admit I am not particularly surprised at the fate of the Talwars. I am not surprised because what we have here is a heady cocktail of a botched initial investigation by local cops untrained for the task at hand, mixed with lurid coverage by a hysterical press determined to pre-judge the issue without basis or facts, topped with a judicial system in deep trouble unable to resist the pressures at hand. These three forces combined to hurtle the Talwars down a road from which it was difficult to turn back.

At the heart of this tragedy lies one simple fact: generally speaking, we Indians are a deeply emotional people, frequently at our own cost. At the simplest, nothing else can explain the ideological foundations, narratives or syntax of popular Indian cinema. This makes us extraordinarily vulnerable to manipulation. The Romans believed that there was nothing innately rational about human beings. At the base of our mental faculties lie instincts we barely control: fright, flight, fight and so forth. Reason, they believed, had to be cultivated through long years of (very expensive!) education. To wit, anyone who wasn't educated thus was a barbarian.

The Roman belief compels us to ask if we Indians continue to be a barbarian people. We have made little investment in education, and the investment we have made is not focused on teaching rationality. Some of it is rote memorising, some of it is ideological bias and propaganda, and practically none of it is grounded in questioning belief till the student learns to use reason to overcome prejudice and unsubstantiated belief curves. We are quick to condemn and relapse into hysterics, rather than sit back and ask; "Okay, what is the root of this particular problem and what do I need to do to fix it?" Allow me to illustrate through excess.

The problem of rape in India is grounded in culture, patriarchy, class conflict, widespread deprivation and pressure-cooked frustration, amongst others. It's a complex problem, yet any number of highly 'educated' Twitterati terrorists demand that rapists be hanged while happily leaving the underlying issues unaddressed. This is an emotional response and, for that reason, a barbaric one. This kind of convoluted logic can just as easily take us to arguing that the best way to deal with widespread hunger is to hang the hungry. Don't laugh: it's called Social Darwinism, and it has gained considerably in popularity in the past 10 years. Survival of the socially fittest, it is argued. In such a world, there is little room for justice, reason or fair play.

Our barbarism can be seen in many spheres of our public life. What is happening in visual media day-on-day is a very good example. Images of millions venting frustration and discontent by destroying public property assault us as hysterical commentators whip up emotion through highly manipulative demagoguery. Highly skilled TV celebrities take up substantive issues of national importance with half a dozen seemingly reasonable 'family men' and reduce them to venom spewing abuse spitting caricatures of mad dogs in minutes. Worse, in the minds of the viewers, this sorry spectacle elevates these same lunatics to the status of celebrities, as opposed to contemptuous boors as you would rationally expect. Mercifully, the print media is still substantially behind in this sordid game, though we can ask ourselves for how long.

The main impact of this unrelenting hysteria is borne by those who administer public functions. In this brave new world, men serving the justice machine - like cops - face huge pressure to respond to the emotional needs of the public they serve rather than this elusive spirit called justice. This is as charitable an explanation as any I can think of to explain what the CBI did to Aarushi Talwar's parents. Presumably, the judiciary experiences the same sort of pressure. Justice then, as we see it in action, has to do with 'what the public wants', not what 'the ideological construct of justice' dictates. The conclusion is inevitable; circumstances compel justice to play to the gallery, rather than its own rules.

This is not to say that substantial justice is always done in India in matters where the public has little interest. Regrettably, our emotional culture of excess still dictates the frame in which we function. As a lawyer, I have completely internalised this construct. For instance, when I wish to file a case, the Code of Civil procedure asks us to state facts, and identify the means we have to prove these facts. In turn, these facts are to be proved by evidence oral or written, meaning that we have to specify documents and witnesses who will prove our case. It's a simple bland exercise of putting down the basics. That is not how it plays out at all. Look at your average 'case' today and the statement of case runs to hundreds of pages. The pleadings read like a propaganda pamphlet. The best drafted cases tell a heart rending tale of ruthless injustice and victimisation, with polemics that would do a Nazi pamphleteer proud. The lesser drafted cases are blabber mouthed chop sueys of half-digested facts and overflowing emotion. Lawyers don't do this because they are too dumb to know better: they do it because it works.

This takes me to another central feature of our justice machine. Many Indian judges believe it is their sacred duty to do substantive justice between the contending parties in every case...as they subjectively define "substantive justice". This has two consequences. For one, parties are often delicately poised this or that side of the line the law draws. If a judge is prepared to push the line this way or that to "help" the party he sympathises with, the law immediately becomes uncertain, dependant more on the judge's feelings than the letter of the law. Our courts are notorious for unsettling settled principles of law. Second, because a judge will move the goal posts in a generous moment no matter how certain the law is, everyone tries his luck in court even if the law is firmly against them. I need say nothing about the burden of backlog in our courts and the decades it will take us to clear them, if at all. The main point here is that only a totally rational person will say "Look, I know this judgement is unfair to this poor guy before me but that doesn't matter." We need certainty of law a lot more than we need to deliver compassionate results to individual litigants.

The conclusion then is inescapable. India stands imprisoned by its emotional realities, which is now dictating both its public life and its social institutions. Unless we can retrain ourselves to be coldly rational in the way we confront all matters of wide public import, justice included, miscarriages of justice will continue to haunt us. Till that day arrives, the tragedies of the Talwars will continue to play out.

(The author is Managing Partner of the Gurgaon-based corporate law firm N South and can be rached at @ranjeevdubey.)

 


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