Applying fuzzy logic in criminal justice can be hazardous

It is difficult to understand how it becomes derogatory, defamatory, or a threat to the nation’s security and integrity.
Applying fuzzy logic in criminal justice can be hazardous

Hearing the bail plea of an accused, an honourable judge sternly advised that certain words like ‘jumla’ shouldn’t have been used to malign the prime minister. This was transgressing the Lakshman Rekha and should leave no one in doubt about the seditious intent of the person seeking relief. Now, ‘jumla’—the word that has caused much controversy and concern even before this—according to the dictionary is certainly not a word of abuse. Ironically, it was introduced into public discourse by a senior member of the ruling party who had used it to explain some exaggerated promises during the election campaign.

It is difficult to understand how it becomes derogatory, defamatory, or a threat to the nation’s security and integrity. By no stretch of imagination can it, in isolation, be outlawed arbitrarily as an explosive expletive comprising hate speech. The only conclusion that the stupefied citizen can draw is that the prime minister, in the eyes of some custodians of our Constitution, is consecrated and the person occupying it enjoys divinity-like status.

Any comment lowering his/her prestige is likely to arouse the wrath of devotee-followers and hurt their sentiments. If this is the fiery Lakshman Rekha all patriotic and God-fearing Indians—call them by any name—are legally obliged not to cross, then we can safely assume footsteps of blasphemy laws can be clearly heard in hallowed halls of a hitherto more or less secular state. One can feel a chill down the spine as it may not be long when agnipareeksha (ordeal by fire) in an appropriate hi-tech avatar becomes the magical touchstone to test innocence or guilt.

Efforts have been underway to erode the concept of secularism. It is referred to as ‘sickularism’ and frequently hyphenated with another derogatory invective ‘libtards’. We are reminded repeatedly that the word was inserted into the pristine preamble during the dark days of Emergency and the sooner it is excised out of the text, the better.

Sadhus and sanyasis of all shades have usurped the space that was till recent years considered the exclusive domain of the elected lawmakers. The highest court in the land treads carefully lest it is seen as trespassing into the territory where legislature is supreme. A lot of avoidable and dangerous confusion is created by autochthonous organisations flaunting the title of dharam sansad and either making unreasonable demands or issuing fatwa-like diktats that for vigilantes supersede the law of the land. The latest example of such overreach has been the demand by some sadhus to cleanse the Char Dham Yatra Path in Uttarakhand and banish non-Hindus from it.

To return to the pronouncements from the Bench. Honourable judges have shown their opprobrium on statements made by other accused and found them ‘obnoxious’ and ‘annoying’. The penal code as it exists doesn’t treat such utterances and conduct as criminal offences. What is even more disturbing is that different benches in different high courts are applying well-settled principles of natural justice and established jurisprudence differently. Not many in the judiciary are inclined to sympathise with the hassled citizen in his/her fight against a regime increasingly intolerant of dissent. Draconian laws in force have shifted the onus of proving innocence on the accused. It is under this scheme not required for the investigating agencies to prove the accused is guilty beyond reasonable doubt.

Not long ago when a lower court granted bail to an accused and passed strictures against the police for its high handedness and filing FIR in a fabricated case, the High Court came down heavily on the ‘erring’ judge. Though the bail granted wasn’t cancelled or stayed, the judicial officer was admonished for having clearly transgressed the invisible but inviolable Lakshman Rekha. Such comments, even in a speaking order, he was warned, demoralise the police and interfere with the government’s work. What about the morale of the lower courts and discharging of their duties? The Majesty of Law depends on the whole edifice from the anonymous stones at the ground level to the pinnacle.

The Indian Constitution recognises the separation of powers and while there remain many grey areas, deliberately blurring boundaries to fudge controversial issues can only aggravate the brewing crises. The people look up to the Supreme Court as the protector of their fundamental rights and to interpret constitutional provisions in a manner that preserves the rule of law. No one else—godmen or gurus, sadhus or priests or ulema—can be allowed to usurp this prerogative.

Vigilantes violating the law should be swiftly punished as per law. To our mind, the trouble starts and assumes serious dimensions when words are whimsically and arbitrarily used by those who should know better. Mythic metaphors and incidents from epic tales can’t be substituted for codified laws. Fuzzy logic has its place in mathematics and quantum physics but applying it in criminal justice or in the sphere of constitutional law can be extremely hazardous.

Former professor, Jawaharlal Nehru University

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