Pursuit Of Proof Over Truth Ails India’s Criminal Courts, Says Fali Nariman

India needs more judges pushing more cases to a speedier resolution, Senior Supreme Court Advocate Fali Nariman said at the New Delhi book launch of the The Indian Legal Profession in the Age of Globalization, by the Harvard Law School Centre on the Legal Profession.

In its emphasis on proof rather than truth, the nation has not yet developed an ideal crime control model, Nariman said in his opening remarks as he outlined the state of the Indian legal system. The absence of a “relentless pursuit of truth” allows the crafty and wealthy to manipulate police investigations and suborn witnesses in criminal courts, he added.

Here’s a reproduction of his full speech.

Of this extremely well researched book…How do I know? Well, it was given to me yesterday. The Indian Legal Profession in the Age of Globalization, edited by two very good friends, Professor David Wilkins and Professor Vikramaditya Khanna. Without the grounding of a good legal education, there is not much a practising lawyer can contribute. Earlier, this year, the Harvard Law Review celebrated its by centennial with a special issue where the law school’s dean wrote, “Some call this a time of crisis in legal education, others emphasise a time of innovation and renewal. Most law schools straddle theory and practice. They also straddle service to the haves who pay lawyers’ bills, and have nots who bear the weight of laws without influence to change them.” She might as well be speaking of the Indian legal system. In this age of globalisation, the fastest of all ages over the centuries, we are all obsessed with time. We don’t have time for this or time for that. But as our national poet Rabindranath Tagore said in one of the verses in his great poem Gitanjali, ‘Even the butterfly has not months, but moments to live, and yet it has time enough.’ So if you permit me, I will adopt the butterfly approach in my brief welcome, flitting from point to point.

The Indian system of justice is British and so adversarial. Unfriendly to all traces of rustic dispute mechanism that had originally taken root in Bharat or Hindustan.

A legal system under India’s Constitution has everything to do with language – the English language. It is inextricably linked to it. Both were originally imported from abroad. But what was an English oak has become over the years a large sprawling banyan tree, whose serial roots have descended to the ground to become new trunks. Some of these new trunks are alternative methods of dispute resolutions like lok adalats and other indigenous species of ADR.

Our Constitution is founded on the rule of law, and the rule of law embodies a principle of institutional morality. A principal which suggests feasible limits on power to restrain abuses which occur even in the most compassionate administration of the law. But I like that definition in the rule of law which is the briefest, namely, the rule of law which is also the rule of the good law. A law which a court can – that’s my belief – if warranted, characterise as abhorrent, grossly unfair, totally unjust. A law which in the hands of a skilled judge can be validly invalidated under the broad parameters of our Constitution - Article 14, the equality clause.

With regard to punishment, our criminal laws are outdated, not in tune with the times. Previous attempts at reform by introducing forms of punishments like community services, compensation to victims, public censure, disqualification from holding office had been proposed, but they were all rejected by India’s Parliament. I believe, the time has come when it must be re-introduced.

We have not developed an ideal crime control model simply because, under our adversarial system, we insist on the search for proof rather than the search for truth. Relentless pursuit of truth is not yet a prescribed standard for criminal trials. And criminal courts function as places where evidence does get recorded, not where the search for truth is pursued. And the crafty, especially the craft-cum-wealthy, know how to manipulate police investigations and suborn witnesses.

I believe that in India, the crying need of the hour, both in civil and criminal trials, is what Lord Templeman used to call ‘robust judging’. A good trial judge needs to have a third ear to hear not only what is said but to have the mental agility to comprehend what is not been said as well.

In India, judges are far too few, lawyers far too many. Professor Mark Galante on his last visit to India a while ago, told us the then favourite joke in the U.S., and it was related as follows:

A couple of years ago the Oxford University Press published a perceptive analysis of the legal profession in the United States and its shortcomings. But one of the chapters which I like best had an unconventional heading. It read: “Too much law, too little justice, too much rhetoric, too little reform.” This sums up the current position in India.

And this is a point with a silver lining. Over the years, the lawyer in India has shown his true mettle. He is at this best when the going is rough. Lord Atkin once said that an impartial administration of the law is like oxygen in the air. People know and care little about it till it gets withdrawn. In India, the lawyer strives to see the oxygen is not withdrawn, even when times are bad as they were during the days of the internal emergency of June 1975. The majority of those who stood up then and were counted, I am proud to say were the country’s practising lawyers. They, and many NGOs, are now crusading under varying forms of injustice and exploitation and assisting in promoting change and development in favour of the poor, the deprived particularly through an expedient known as PIL or public interest litigation – an indigenous technique developed by India’s judges with the active assistance of the legal profession.

There are of course problem areas in our courts. We need more judges pushing more cases to a speedier resolution of the dispute at hand. What is required in many cases is not prolonged arguments, and not even long judgements but primarily solutions. At the highest level, we do strive to see that justice gets done but not always successfully. Let me end this address with my favourite story of how truly and difficult the business of judging is. So Owen Dixon was Australia’s Chief Justice for more than two decades and he sat in his high court, the court of final appellate jurisdiction. A lady sitting next to him at a dinner party was greatly enthused with the prospect of his dispensing justice. She leaned towards him, clapping her hands with joy, “How splendid!” Dixon’s response was stern, almost unfriendly. “Madam,” he said, “I have nothing to do with justice. I sit on a court of appeal where none of the facts are known. One third of the facts are excluded by the frailty of memory, one third by the negligence of the legal profession, and the remaining one third by the archaic laws of evidence.” And the woman’s face fell.

Watch the full speech here.