No Democratic Protest If No Fair Trial

[Ed Note: Over the next few days, we shall be discussing Prof. (Dr.) Upendra Baxi’s article titled “Human Rights in the Administration of Criminal Justice: The Concept of Fair Trial” published in the Annual Journal of the National Human Rights Commission, Volume-19, 2020. This is a response to the article by Prof. Amita Dhanda. The introductory post and the links for responses from commentators can be found here.]

 A Dalit activist reports being beaten black and blue in police custody; a liberal judge acclaims the significance of dissent in a democracy but restricts the right to only the Hindu dissenter before him; five persons are arrested for committing an offence but only three persons are granted bail. We encounter innumerable reports of such kinds of incidents in the print and electronic media. Every such report demonstrates that the right to free trial is in deep doldrums in India. In such a situation is there any point in dwelling on the normative requirements of the right? Baxi begins his exposition of the Criminal Justice System by expressing a similar sentiment, “ (I)t is a good theme for pontification and platitudes but does no more than induce … human rights weariness and wariness.”

Alfred Adler, a contemporary of Sigmund Freud, who parted ways with him because he was more interested in asking the what questions in comparison to Freud’s preference of seeking answers for the why questions. Be it childhood trauma or birth positions, Adler only asked what now? All the causation exploration he contended was not going to alter the past, hence the more important question was how to deal with the reality that has emerged?[1] How should the situation be addressed? What should be done about it? In responding to Baxi’s exposition on the criminal justice system, I am taking a leaf out of Adler’s book. From all appearances, the administration of criminal justice in India is in a sorry state. The right to fair trial is observed more in the breach, the critical Alderian question is what should we do about it?

A range of options could be explored. In this piece, I am focussing attention on two: one the suggestions put down by Baxi to transform the administration of criminal justice (ACJ) to a criminal justice system (CJS) and the other is the option of protest. The two options are not exclusive of each other and both can be suitably employed as demanded by the situation.[2] In this response paper, I firstly examine what Baxi has suggested and then reflect on the emancipatory potential of protest and lastly look at the inter se relationship between Baxi’s normative narrative and the politics of protest.

The Baxian Remedy to move from ACJ to CJS

Administration of Criminal Justice in the Baxian lexicon is just dealing with crime occurring in a society. The activity is managerial and primarily driven by the interests of the governors. A Criminal Justice System is driven by values, it distinguishes between right and wrong, fair and unfair, just and unjust, and constitutional and unconstitutional. Baxi assists in this process by putting down the ten commandments of operating a civilized CJS. A number of the postulates may be described as long accepted for example the presumption of innocence; the demand for the system to be non- arbitrary and non-discriminatory and a distinction being maintained between prosecution and persecution. As observance of even these norms has started to occur more in the breach, Baxi has felt it necessary to reiterate. With legislations increasingly according preference to crime control over fair administration Baxi asks for the presumption of constitutionality to be operable only after the Supreme Court has found the legislation to be just, fair and reasonable.[3] In order to strengthen protection against administrative waywardness, Baxi asks for the impunity of good faith and acting under the colour of office be denied to any law enforcement action which is tainted with suspicion. He requires all wrongful prosecutions to be penalised and full compensation in cash and kind be awarded to the violated and the next of kin.[4] In addition, the ten commandments reiterate the prohibition against discrimination and bail not jail should be the ruling norm.

It would seem that there can be little disagreement with the dictums incorporated in the ten commandments, even so as the commandments are being employed to educate, Baxi looks at the various components of a fair trial especially the right to counsel to demonstrate how the presence of a lawyer prevents abuse. To show that the claim is  empirically established and not just rhetorically sound, Baxi refers to an Israeli study which showed how the presence of a lawyer brought down custodial abuse. In the face of widespread cynicism, the strategy of promoting human rights conformity by relying on research-based facts seems a useful strategy to win over fence sitters.

In making the case for CJS Baxi has primarily relied upon the language of reason and persuasion. He is, however, not oblivious of the need to keep alive the threat of force. To this end, Baxi has used the obligations imposed by international law to show that flattening of all domestic opposition does not mean that national governors escape all constraints of accountability. Article 51 of the Indian Constitution requires due respect to the country’s international law obligations. Fair trial, no torture, right to counsel have been incorporated in binding international norms. Since the Westphalian claims of national sovereignty can no longer be asserted in international law, flagrant breach of fair trial norms could invite international sanctions. It is important that national government’s function, remembering that domestic impunity does not translate into total impunity and international accountability could be demanded and obtained.

Third world countries have often perceived the norms of international law as an instrument of neo-colonialism especially in the manner in which norms of international trade and intellectual property are formulated and implemented. Baxi, in drawing attention to the fair trial norms created by hard and soft instruments of international law and the resource of accountability present within that system, shows how international law can be used to make national governments responsible. Thereby, demonstrating that the Third World Approach to International Law (TWAIL) queries the neo-colonial impulses of international law but does not advance national parochialism. Moreover, the oppressed do not have the luxury of abandoning remedies, so the norms of international law can be both challenged and strategically used. 

Baxi has outlined the impulses existing within the system and how they can be strengthened. The other pathway to change is that of protest, where change is not being sought from within the system. Rather the legitimacy of existing institutions is condemned and reconstruction of norms sought by dissent, agitation and protest. In the face of a creaking criminal justice system, and disillusionment with the court it could well be asked is there any hope for the voice of reason, persuasion and democratic interpretation? If not, then why bother?

The aforesaid response arises when engaging with the system and protesting against the system are viewed as disconnected activities. So, if one is being pursued the other should be abandoned. Unless we believe that people who undertake movement level work should necessarily risk annihilation, investing into fair trial practices and discourse is required for all, those who believe in the system as well as those who question it. The creation of a civilized CJS is especially needed if voices of disagreement are not to be criminally gagged. And this is only possible if there are non-negotiables for everyone in the system. The voices of protest by questioning the legitimacy of the system help in creating space for those who seek reforms from within. For moderate voice to be seen as moderate the radical viewpoint is needed. A robust democracy needs dissenting voices hence the criminalising of dissent is problematic for all and not just the targeted. A civilized criminal justice system would not allow such like targeting. It is therefore important to keep building norms and practices in the criminal justice system which enhance its fairness. To abandon the discourse of reform due to institutional disillusionment is to give a carte blanche to arbitrariness. The absence of challenge would only expand impunity; hence that option cannot be availed. And Baxi, in putting together the commandments and renewing the call for a fair and equitable criminal justice system, seems to be saying that failure is no reason to give up the crusade for reform. And engagement with systemic reform does not mean that other options for change are being abandoned. It is important to retain and strengthen the symbiotic relationship between movements for reform both within and outside the system. To work on one is not to abandon the other.

[1] Alfred Adler Understanding Life ( One World Publications 1927)

[2] Mari Matsuda “When the first Quail Calls: Multiple Consciousness as Jurisprudential Method” 11 Women’s Rights Law Reporter 7 ( 1988)

[3] Whether this is a sufficient safeguard is debateable since the apex court in a number of recent pronouncements has leaned more towards the governors than the people.

[4] Id at 7.s

Prof. Amita Dhanda

Amita Dhanda is Professor Emerita NALSAR University of Law.

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