The brutal gangrape and murder of a young lady in Delhi has understandably evoked spontaneous outrage throughout the country. It has also led to certain proposals regarding changes in the law, and in particular about the punishment to be imposed on the rapist convict. Various suggestions have been made by different persons. For example, (a) the convict should be stripped and flogged in public, (b) the convict should be physically castrated in public, (c) public hanging of the convict straightaway and forget ‘this trial thing’. These persons are unaware of international norms and that our Supreme Court has frowned upon cruel and unusual punishments. Besides history testifies that public executions had become carnivals when people evinced vengeful and sadistic emotions which were expressed in the violence and ribaldry of crowd behaviour and had a brutalising effect on society, especially on children who would find nothing wrong in treating pets and other children with cruelty. Public executions have been abolished in several countries. The rationale of the legitimate ‘Cry for Justice’ is a swift day-to-day trial which should mandatorily conclude in three to four months. The proposal that criminal trial should be dispensed with in the case of alleged rapists is contrary to the guarantee of fair trial in Article 21 of the Constitution. Barbaric conduct and acts of the convict certainly deserve most stringent punishment but not barbaric punishment without a fair trial. Otherwise the rule of law, a basic feature of our Constitution, would be subverted. It behoves a civilised nation to exercise restraint in matters of life and death, even in ghastly cases.
The Curse of Adjournments: Delays in criminal trials result in serious adverse consequences to society and also affect a person’s fundamental right to speedy trial under Article 21 of the Constitution. The phenomenon of ‘laws’ delays’ which Hamlet bemoaned is ancient and persistent. Way back in 1912, a Division Bench of the Allahabad High Court ruled that it is most inexpedient for a Sessions trial to be adjourned and that adjournments should be granted only on the strongest possible ground and for the shortest possible period. Unfortunately, this admonition has been brazenly disregarded.
In a recent judgment delivered by a Bench of the Supreme Court comprising Justices Swatanter Kumar and Fakkir Mohamed Ibrahim Kalifulla, the court stressed that grant of adjournments is the principal cause for delays. Justice Kalifulla after an extensive discussion of the previous Supreme Court judgments stated that the mandate of Section 309 of Criminal Procedure Code (CrPC) dealing with the subject of adjournments was ‘flouted with impunity’ and that adjournments are granted on flippant grounds on the mere asking. The court was concerned that adjournments are granted to suit the convenience of the advocate concerned and declared that “at any rate inconvenience of an advocate is not a special reason for bypassing the mandate of Section 309 of the CrPC”.
It is shameful that some advocates utilise their legal acumen and resourcefulness in perfecting the art of getting adjournments and are popularly known as ‘adjournment counsel’. Their tribe flourishes because of the ease with which adjournments are granted by courts so as not to displease advocates and become unpopular. Judges must remember that they are not participating in a popularity contest. In this context, the Supreme Court has rightly directed the high courts to take note of the conduct of any particular trial judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as per the law. The bane of frequent adjournments, however, will not be mitigated unless the Bar Council of India issues a direction to advocates to not seek adjournments on false and flimsy grounds. The autonomy of the Bar will not be affected thereby. On the contrary, the image of the legal profession will improve and the justice delivery system will function with expedition.
solisorabjee@gmail.com
Sorabjee is a former Attorney General of India