Dear reader, Help.

Written by  //  December 7, 2010  //  Law & The Judiciary  //  4 Comments

Dear reader,

The Hindu last week carried a report on a rather fascinating comment by a Supreme Court judge in the course of a hearing on the Godhra riots case. Justice D. K. Jain apparently took issue with letters that the Centre for Justice and Peace, Teesta Setalvad’s NGO, had written to the U. N. High Commissioner for Human Rights. We aren’t told about the content of these letters, unfortunately, except that they have to do with ‘witness protection’. Justice Jain complained:

It [the case] is our matter. Do you mean to say that from Switzerland they will provide witness protection? What you have to do with the international body? Are you justifying that? Then we have to consider it in a different perspective. It is a reflection on us.

You [the CJP] may have association with hundreds of bodies around the globe, but why is this letter sent to the international body? What is the business of the international body? Don’t we have the capability to provide protection to witnesses? We can’t allow an international body to interfere with what is happening in our courts. This cannot be allowed. We cannot permit outside agency.

I have much to say about these comments, but I’m worried that if I say what I think in my current state of high agitation I might get into trouble. (The entirely rational reason for that reticence, given the current state of contempt law, is a topic for another day).

So I’d like instead to start a conversation. Accepting, of course, the handicaps of having neither a copy of the letters, or a verbatim transcript of Justice Jain’s comments, or the context of the exchange between bench and bar, what should we make of what his Honour said? Write below and, once I’ve calmed down, I’ll join in.

Please help,

Not a Martyr

4 Comments on "Dear reader, Help."

  1. Alok December 7, 2010 at 6:11 pm ·

    Being written by J. Venkatesan, you may confidently assume that this is as close to the actual words of Justice Jain as it can get. Venkatesan is one of the rare breed of Supreme Court reporters who reports courtroom events and judgements correctly.

    Not having the letters with me (or having gone through their contents), I cannot say for sure what CJP was trying to do, or hope to achieve with this. A stern reprimand from the UNHRC? Official communiques of displeasure? Strongly worded reports?

    Be that as it may, Justice Jain’s outburst is probably understandable (if not justified, since that would depend on the content of the letters themselves) because when a matter is sub judice, it is frowned upon to undermine the Court’s authority by trying to approach other authorities without the Court’s leave or permission. It’s one thing for concerned persons to approach other bodies for relief, but when a party before the Court tries to bypass the Court for relief, it is not likely to be treated indulgently.

    On a related note, having witnessed some of the hearings in this case, the lawyers for CJP are increasingly turning the Court against them with their courtroom manner and through overly aggressive and adversarial argumentation. Passion is good for a lawyer, but unbridled it will turn a Bench against you. Even judges know the oft repeated maxim “When the law is on your side, hammer the point of law to the judges; when the facts are on your side, hammer them to the judges; when neither are on your side, just hammer”

  2. Arghya December 8, 2010 at 5:24 am ·

    Hi Eesvan,

    With the caveat that I haven’t read the letters and have no inkling of its content except the Hindu report, I am surprised by what has angered you so.

    If the letters by CJP were a report on witness protection systems in India and their failing then of course there would be nothing wrong. But the tenor of the Hindu article and Justice Jain’s reaction suggests that it was neither that academic nor innocuous. And if the attempt was to seek witness protection from an international body, or even use the letter as a tool to internationalise the issue then the Supreme Court can justifiably take umbrage at the action and feel as if its competence in the matter is questioned. This is especially so given that witness protection was one of the key reasons as to why the Best Bakery trial was shifted outside Gujarat.

    I would be curious to know the reason for your anger because as it stands now I’m not sure I really understand.

  3. Dalai Shawarma January 3, 2011 at 6:53 am ·

    I’m equally angry, and not just due to my IBS. I think the issue is one of freedom of speech, and the appropriateness of judges suggesting that there ought to be fetters on this.

    I know the Indian Constitution qualifies this right to a greater extent than do many others, but still – as parts of a mature democracy, Indian institutions ought to recognise the signalling and fact-finding roles bodies like Amnesty International and appropriate UN watchdogs can play in making witness protection systems more effective.

    Again, we don’t have a great deal of context, so if the statements made were completely defamatory or unfounded in fact, that’s one thing. Respectful criticism of the system to outside bodies can be helpful, however. Contempt of court has often been used as a muzzling device in less free countries than India, as have signs of intimidation by judges who feel that they are infallible by dint of their office.

    As long as the other authorities were only being given publicly available information or advocates’ thoughts on the case, I don’t think the judge’s outburst was at all warranted. It’s quite an Indian trait, I think, to equate criticism of a system or a likely outcome with criticism of the enforcer. “Outside agency”, as the judge terms it, is a valid advocacy tactic in many cases where the law seems completely against you or your voice is unlikely to be heard. Judges and lawmakers generally ought to be less sensitive to the source of the criticism, and might consider evaluating the criticism on its merits – it’s only then that good change might actually take place.

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