By Sumit Saxena
New Delhi, Dec 24 : A strong criminal justice system is often argued as a deterrent to arrest rising crime, but it is also vulnerable, as an excessively harsh system may result in over criminalisation and stand in the way of a fair and equal society.
On many occasions, the Supreme Court has urged the judges to show humane attitude and compassion while passing orders to incarcerate a person, and make bail a rule and jail an exception. But where does the balance exist?
Advocate Bansuri Swaraj, daughter of BJP stalwart late Sushma Swaraj, feels the criminal justice system should aim not only to be punitive, but it also needs to be reformist in its approach.
Bansuri is a graduate from the University of Oxford and is a Barrister from the Honourable Society of the Inner Temple, London. She is currently a practicing advocate in the Supreme Court and the Delhi High Court.
Citing the importance of empathy in the judicial system, Swaraj said: “Empathy and equity are an inseparable part of our judicial system. In many cases, we see the humane and compassionate side of the judiciary. Many a times, the judges have passed innovative judgments/orders to balance the scales of justice.”
The country’s criminal justice system has acquired a lot of attention across the partisan and ideological lines, which is completely appropriate and necessary. The deate now is what should be a framework for assessing challenges to reform the criminal justice system?
Bansuri said: “Punishing the criminal is necessary to deter future crimes, but a welfare state has to also aim to reform the criminal and integrate him back into the civil society. Every person who yields the sword of law must have compassion in her heart to prevent misjudgement.”
In January this year, Swaraj represented 14 men convicted in the 2002 Gujarat riots case. A bench headed by Chief Justice S.A. Bobde, while granting conditional bail to the petitioners, said the top court has held that punitive harshness should be minimised and restorative devices to redeem the man, even through community service, meditative drill etc., should be innovated.
The apex court found it appropriate that the appellants should be directed to engage in some spiritual programme or do some social/community services. “We, therefore, find that it will be appropriate in the circumstances to direct the release of the appellants on bail,” said the top court while granting conditional bail.
Swaraj said the top court in this matter adopted a novel approach at the time of granting bail. “The court imposed stringent conditions such as prohibiting the accused persons from travelling to their native state, which is Gujarat, and at the same time directed the accused persons to participate in spiritual activities and community service,” she said.
Swaraj termed the order as a positive step towards development of a compassionate criminal justice system, and insisted that compassion helps in reforming the criminal and aids in his assimilation back into the society as a productive member.
Swaraj emphasised that speedy trial is the most essential requirement in the criminal justice system, since it is necessary to provide justice to the victims’ families as well as to ensure that innocents do not languish in jails awaiting trial.
(Sumit Saxena can be contacted at sumit.s@ians.in)
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