We are living in a reign of terror. In Delhi last month, serial blasts in crowded areas on a single day resulted in material damage and spread of terror. Within days, the police claimed to have cracked the case, to have zeroed in on the “masterminds” and gunned them down.
The media response was mostly laudatory — most carried the police line and did not even refer to those killed by the police as “alleged” terrorists. The real masterminds behind the terror apparently wanted to call the bluff. Another blast followed shortly. This time, the police was more hesitant in reacting with a claim of success.
A significant component of political society has started clamouring for “stringent” anti-terror laws that would make proving a crime of terror easier. This is quite similar to the areas of business and economics. Occurrence of gross crimes has always evoked a clamour for more stringent powers. Be it acts of terrorism or economic offences such as insider trading and price manipulation, in India more stringency necessarily has to mean lowering the standard of proof for a conviction.
It can have no other meaning because India has very severe punishments for such crimes in its substantive law. It is popular to argue in favour of lowering the standard of proof— such measures result in a greater number of convictions. More convictions, it is argued, will have a “deterrent” effect on society.
Nothing can be farther from the truth. Making it easy to prove a crime can only create a record of a higher percentage of convictions, and will not necessarily act as a deterrent. Such an approach would be similar to making examinations easier to pass for students so that we have a highly learned society.
Indeed, the number of students that scores over 95 per cent marks in public examinations today is exponentially greater than say 20 years ago. Yet, the employability of the average Indian graduate today is starkly lower than those who graduated over 20 years ago.
If the object of the law is to make it clear to society that crime does not pay, it will never help to enable the law-enforcers to have an easier task proving a crime. Making it easy to prove a crime will empower enforcement agencies to provide a false sense of security that crime has been detected.
A more plastic standard of proof would result in more innocents being convicted for crimes, and enable the enforcers to claim better statistical performance.
The role of judicial attitude too has to be judged on a similar barometer. It is becoming increasingly difficult for those accused of serious crimes to get a fair trial, thanks to media management by the men in uniform.
Be it enforcers of economic laws or criminal laws, obedient media coverage has made it easier for enforcement agencies to conduct trials by media, impacting the ability of any reasonable judge to conduct an uninfluenced trial.
Many of the high-profile trials one reads about in India today could be regarded as mistrials in other jurisdictions. Judges, but human, conscious of working under the glare of the media, are bound to be intimidated. It is not uncommon for judges to find reasons to reject challenges to regulatory action, when troubled by the morality quotient of the alleged offence. Such an effect can be felt across courts.
Increasingly, the jurisdiction of courts is being ousted by Parliament, which is setting up tribunals to hear appeals against regulatory actions. Be it securities laws or electricity laws, or then laws governing banning of alleged terrorist organisations, tribunals are where proceedings are fought.
Although Parliament has conferred a statutory right to appeal in higher courts — for instance, appeals on questions of law from the Securities Appellate Tribunal lie in the Supreme Court as a matter of statutory right — the Supreme Court is known to deal with statutory appeals as if they were “special leave petitions”, where the court has the discretion to decide whether it is worthwhile expending time and energy on the appeal. Many appeals from tribunal decisions are not even entertained, thereby eroding the effectiveness of the appeal process.
Depending on the mindset of the judge — some can be extremely liberal while others can be extremely pro-conviction — either the regulators or the accused would lose out on an effective appeal.
A more plastic standard for convicting crime does not further the cause of effective regulation and enforcement. Even while a greater percentage of convictions may provide a statistical comfort of well-being, grave crime, be it terrorism or insider trading, tends to continue unabated. The only real response to such crime is meticulous work to bring about convictions.
The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own
Correction:
In last fortnight’s column, an inadvertent error suggested that US had not yet effectively banned short-selling. The US had announced a comprehensive ban on all short sales in stocks of financial institutions.
