A model judge

Justice Arijit Pasayat, a no-nonsense judge.-M. VEDHAN

A GLORIOUS chapter in the history of the Supreme Court of India comes to an end on May 10. Justice Arijit Pasayat, one of the most outstanding judges of recent times, bids goodbye to the Supreme Court on that day after serving the court for more than a decade. A god-fearing, affable and soft-spoken person, he will be leaving his deep impress on the criminal justice system of the country, which needed a guiding hand like his in its present hour of crisis. Many of his judgm ents revealed anguish over the decline in standards of criminal justice administration. He did not, however, stop merely with strong expressions of disappointment. He went beyond to fuse a few unique and practical remedies into the existing law so as to stem the rot at least partially. It is this determination to attempt proactively to improve matters that marked him from many others who believed that the system had gone beyond repair.

When one analyses his judgments a record 2,300-odd what stands out is his utter humanity and pragmatism. He was no believer in shibboleths. His rulings were not convoluted. Nor were they obfuscated or complicated by flowery language, intended more for the ear. He did not indulge in phoney philosophising either. His statements came directly from the bottom of his heart, out of a supreme desire to do justice to the victim, be it the innocent citizen who had been subjected to undeserved violence or an accused who had been framed by a conspiracy of circumstances and against whom the evidence adduced was only half-convincing.

If I remember right, it was former Attorney-General Soli Sorabjee who once described Pasayat as a no-nonsense judge. Those who knew the latter well enough would unhesitatingly agree with this down-to-earth description of the man. Where he was convinced that an accused was guilty, he had no hesitation in going the full length in endorsing the severest penalty. One instance that comes to my mind readily is the case of two men of Ghaziabad district (Uttar Pradesh) who gunned down five members of a family in August 1994. While the trial court sentenced them to death, the Allahabad High Court chose to commute the punishment to a life sentence.

Overruling the High Court and restoring the death penalty, Justice Pasayat (along with Justice Mukundkam Sharma) observed: Any liberal attitude by imposing meagre sentence or taking a too sympathetic view merely on account of lapse of time in respect of such offences, will be result-wise counterproductive in the long run and against societal interest, which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system the case at hand falls in the rarest of rare category. The depraved acts of the accused call for only one sentence, that is death. In effect, what Justice Pasayat, who wrote the judgment, had possibly in mind was that heinous crime had to be necessarily dealt with mercilessly. This was not actuated by any sadism or authoritarianism. The objective was to send the right signal to those out in society who were contemplating violent crime.

If Justice Pasayat ever wrote his memoirs, the Best Bakery case will figure prominently in it. This case is that during the post-Godhra violence in Gujarat, a bakery in Vadodra owned by Muslims was vandalised by a Hindu mob and 14 persons were burnt alive on March 1, 2002. The 21 accused in the case were acquitted by the trial court, a decision that was upheld by the Gujarat High Court. In a nearly unprecedented move, on a petition seeking fair trial from Zaheera Sheikh (whose close relatives were the victims), the Supreme Court ordered a re-trial to be held in Maharashtra.

The Supreme Court Bench that heard the case comprised Justices Pasayat and Doraiswamy Raju. Writing the judgment, Justice Pasayat lambasted both the State government and the Gujarat High Court in unusually strong language. He said: Those who are responsible for protecting the life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. A large number of people had lost their lives The modern day Neros were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice became flies in the hands of these wanton boys.

Justice Pasayat was also intrigued how, after finding the investigation faulty and dishonest, the Gujarat High Court did not choose to order a re-investigation, a perfectly legitimate course of action permitted by the Code of Criminal Procedure. Subsequent events proved the sagacity of the two judges in ordering a fresh trial outside Gujarat. In February 2006, the Mumbai Sessions Court found nine of the accused guilty and sentenced them to life. If this did not infuse confidence in the hapless victims of any dastardly crime, what else could?

What was most significant about the Best Bakery case was the conviction of Zaheera Sheikh, who turned hostile in the Mumbai Sessions Court, for perjury by the Supreme Court in March 2006, after she was found repeatedly changing her statements and the Registrar Generals enquiry concluded she was guilty.

Here, Justice Pasayat was not swayed by sentiment in having to send to jail for a year a young woman who had lost all her near ones in the attack on Best Bakery. Obviously, he thought that the credibility and respect of the judiciary had to be preserved, even if, in the process, a person who was already in extreme grief was hurt.

Another of Justice Pasayats concerns was to protect the innocent against gross abuse of the law by dishonest elements. In particular, he was aware of how some pieces of social legislation could be misused to fix ones adversaries. The Dowry Prohibition Act, in particular, is one law that has repeatedly come to adverse notice in many parts of the country. Where a marriage has failed and the girls parents are vengeful, the Act has become a handy tool to destroy reputations. Of course this is with the connivance of the womens wing of the police, whose reputation in most of India is soiled beyond description. This sordid situation is especially true in cases where the bride dies within seven years of marriage under abnormal circumstances, when the burden of proof nearly totally shifts to the husband and his close relatives that they were not responsible for the death.

Justice Pasayat has been more than sensitive to the many distortions of a law that was meant to root out a social evil, and his ruling that gifts demanded from the parents of a bride after the marriage, especially on the occasion of the birth of a child, however despicable the practice might be, could not be termed dowry, is a realistic recognition of age-old custom. Any complaint, therefore, against a boy or his parents would be untenable if such a demand was made to the girls party subsequent to a marriage. The same anxiety to protect individuals from a flimsy allegation of dowry death was evident in Justice Pasayats ruling in another case which ran like this: There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned [to take extreme step], it would be of no consequence.

Justice Pasayats outrage over violence on campuses led to the creation of a monitoring mechanism in the Ministry of Human Resource Development. In the form of a committee of educationists and administrators, this device has pumped some life into regulatory bodies such as the University Grants Commission, the All India Council for Technical Education (AICTE) and the Medical Council of India (MCI). These organisations have now become more accountable to putting down the evil of ragging and ensuring that innocent students are not terrorised by hooligans who have enrolled themselves in various professional colleges.

Justice Pasayat is pushing for exemplary punishments in the form of stoppage of grants and withdrawal of recognition to institutions from where instances of ragging get reported frequently, indicating a lack of enthusiasm to enforce anti-ragging measures endorsed by the court. The passion and drive displayed by Justice Pasayat in this area offers hope that the barbaric practice of ragging will become a thing of the past in the near future.

Justice Pasayat will be remembered for many years to come for his perceptive rulings in the area of criminal justice. His ability to sift facts even in complicated cases and place them in a legal perspective was his strength. His judgments deserve to be assembled in an exclusive volume that will guide practitioners, both in the law enforcement agencies and the legal fraternity. Young lawyers aspiring to occupy crucial positions in the judiciary will also do well to emulate his qualities of hard work, absolute integrity and, more than these, his concern for the lowliest of low who look to the judiciary for relief.