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My dear law students, this letter begins with Arnab Goswami but it’s more about why you became lawyers in the first place. I have already spoken to you about Arnab as an example of how not to engage with one another.
Arnab barely listens to interlocutors; when the other person is speaking, he uses the time not to appreciate what the other person has said but to gather his thoughts on his next course of attack.
If Arnab were an isolated example, I wouldn’t be alarmed but he appears to have remade the entire Indian television landscape in his own image. Today Indian TV is essentially Indian talking heads TV and the talking heads are busy talking over each other.
I see some of you behaving like Arnab in the class, interested greatly in what you have to say but ignoring the responses of others, or worse, interrupting others mid-way. The Arnabisation of everyday discourse worries me greatly.
I notice that even Arnab’s detractors have become like Arnab. A comedian heckles Arnab on a flight and is cheered by others for doing to Arnab what Arnab does to others. This is how toxic cultures flourish.
Arnab shows us that we miss something vital when we refuse to listen to the other side, or to give them a fair opportunity to make their case. Today, when Arnab himself has been incarcerated and not given a fair chance, I want to revisit this idea that I believe animates the law.
One of the primary aims of the law is to apportion blame and punishment whenever a wrong is committed. Wrongs-thefts, murders, rapes - are committed all the time. The tricky question is how to treat people who are accused of committing wrongs.
A society is judged on how it treats people who are accused of wrongs. There is a great tendency in human societies to exact punishment when a wrong is done. The situation is ripe for a demagogue or a despot to exploit emotions and round up innocent people for punishment.
The people who usually get caught are the poor and the vulnerable, who have no one to protect them from the corrupt and the powerful. The procedural law is a powerful ally of the weak; it makes sure that every single person is heard and is given a chance to prove himself innocent
Lawyers stand between the mobs and instant justice. You might all become hot shot corporate lawyers tomorrow; but remember the most enduring reason for your profession is that you are the instrument of procedural justice.
It is in this context that the great tenets of procedural justice make any sense. Guilt can be established only through a prescribed procedure by an independent authority, not through media outrage or mob justice or political fiat.
An accused should be granted bail at the earliest opportunity. Every accused should be accorded the benefit of doubt, for guilt cannot be a question of mere appearances.
Arnab’s arrest in a case that was actually closed earlier by the police after investigation raises important questions of procedural justice.
In today’s India, there is a great impatience with procedural justice. Trials for suspected terrorists are considered a waste of time, police encounters of suspected criminals are celebrated, and there is a yearning for quick and efficient closure whenever a wrong is committed.
As law students, I hope you will be the the sandbags against which the waves of instant justice break ground. I want it embedded in your DNA that without procedural justice, any closure for a wrong is futile.
If the government puts people behind bars on flimsy reasons, and courts keep the accused in jail for months on end even before their trials begin, there will be no justice served even if the person arrested turns out to be guilty.
For tomorrow, a canny politician or a powerful businessman will engineer an arrest of an innocent person, who could be any of us.
My favourite tenet of procedural justice is the rule that a person has the right to remain silent when accused of a crime. Why so, one might ask, for if a person is silent when accused, surely he has something to hide?
But it is the anxiety of the law to ensure that a person should not be placed in a situation where he can harm his own prospects that has led to this rule.
Such rules are probably scoffed at by people who believe that the law is an ass. I believe that these rules form the scaffolding of our civilisation. Without these rules, we are beasts, not men.
