They are not Final because They are Infallible, but They are Infallible only because They are Final, writes Noor-Ul-Shahbaz
By Noor UL Shahbaz
Much has been written on judiciary since its inception and still is the fashion to give vent to jeremiads about the courts or just to review and analyze its decisions and to probe the personalities and policies of justices. Not many writers like me have been constructive in giving basic suggestions for preserving and improving the court as the conscience and fulcrum of our government. It was Spinoza who said, “it is the part of a wise man not to bewail nor to deride, but to understand” or as it was more colloquially phrased in the aphorism of an unknown Chinese humanist, “it is better to light one candle than to curse the darkness.” In a country which follows the “rule of law”, independence of the judiciary is sacrosanct. There can be no rule of law; there can be no democracy unless there is a strong, fearless and independent judiciary. Independence and fearlessness is not only expected at the level of superior courts but also from the subordinate judiciary at district level as most of the litigants revolve around there. Therefore, it is equally important rather most important that judiciary at district level is honest, fearless and free from any pressure and is able to decide cases only on the basis of facts and circumstances on file and in accordance with the law, uninfluenced by any pressure from any quarters whatsoever.
To err is human and no one can claim to be super human, and also no judge can claim that he or she has never passed a wrong order or his decision has not been influenced by whatever the circumstances he faced. Legal education at the end of the day turns entirely on the question of whether judges can be wrong or not. There are two options: either it is the case that when judges make decisions, those decisions are authoritative, valid and enforceable, and therefore incontrovertibly right or it is the case that when judges make decisions, those decisions are authoritative, valid and enforceable, but they can nevertheless be wrong. The judicial fallibility thesis maintains that the validity of the decision is one thing but its rightness or wrongness is something different. Validity may be measured by reference to authority but rightness and wrongness are not measured by reference to authority but by reference to ‘authority-independent’ criteria. Simply put, a legal ruling can be valid but also wrong. In the words of Lord Hobhouse, “A court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed.” There is always a distinction between ‘want of jurisdiction’ and ‘irregular exercise’ of jurisdiction. Once it is held that a court has jurisdiction to entertain and decide a matter, the correctness of the decision given cannot be said to be without jurisdiction inasmuch as the power to decide necessarily carries with it the power to decide wrongly as well as rightly.
Justice Jakson has rightly stated that, “We are not final because we are infallible, but we are infallible only because we are final.” The moral of the story is that judges alone cannot be blamed for judicial fallibility; it is the entire legal system that should be looked into. Errors can happen during any step of procedure in criminal cases from arrest till court proceedings, during investigation, while collecting evidence, mishandling of evidence, misidentification by eyewitness, corrupt witnesses, there are many instances which might lead to passing of wrong judgment and hence judicial fallibility. It is here worth to mention here that sometimes the law itself might be ambiguous in nature. In such circumstances when the law is not clear, it will be really difficult to interpret it and take a call on which interpretation is correct and which one is wrong. When an error at such stages is made by the judiciary it results in innumerable consequences and the two main consequences are that and innocent will be convicted for a crime that he did not commit, and the criminal will be open with no punishment who is a potential threat to the society. Depriving a person from enjoying his life ‘life imprisonment/ death sentence’ is a severe punishment and the judiciary has made errors in such crucial cases. Mohammad Jalees Ansari & others v. Central Bureau of Investigation [2016] is an instance of judicial fallibility by subordinate courts, the accused was taken into custody by the police officials in the year 1994, he was charged for the bomb blast in Hyderabad (1993) and was later charged under TADA for bomb blasts in five trains. Eventually, after his ‘confession’ he was sent to jail where he spent twenty-three years of his life. During this time, he was convicted and given life sentence by the Ajmer TADA Court. In 2016, when the matter came under the Hon’ble Supreme Court, it overturned the decision of TADA Court and ruled that the ‘confession’ which was taken in the custody of police which was the basis for conviction of accused was inadmissible and did not have any legal sanction. Then the accused was the acquitted and cleared of all charges after enduring 23 years of wrongful incarceration.
We all may be aware about another case of wrongful imprisonment of 23 years of our Kashmiri brother Ali Mohammad Bhat, the Rajasthan High Court acquitted him along with four others in the 1996 Samleti blast case, the first thing he did after returning home in Srinagar was to prostrate in front of his parent’s grave – as they were no longer alive. He spent almost two-and –a-half decades of his life in jail during which he lost his young age and his parents. While acquitting him, the High Court said the prosecution had failed to provide evidence of conspiracy adding that the prosecution could not establish any link between them and the main accused Dr. Abdul Hameed, whose death sentence was upheld. The most relevant instance of judicial fallibility is that the Supreme Court has ordered the release of an accused [namely Perarivalan] in killing of former Prime Minister of India Rajiv Gandhi. He was in jail for 31 years and was released on the plea of the Tamil Nadu government. The top court in this case has refused the suggestion that the Court should wait till the President decides on the issue of ‘mercy petition’. Dear readers, there is relief in law for people who suffer due to judicial fallibility and they can be provided monetary compensation for their sufferings, however the question here is how can the judiciary compensate them for their ‘life, family, kiths and kin’s” which compose the tasteful life, which they did not enjoy? There are so many under trial accused persons languishing in jails who have families, kiths and kin’s behind them and are waiting for a word from a court of law, that can be their life changing moment – as some one’s hope is equivalent to what others have in person. Last but not the least, Supreme Court being the highest court has the power to set aside the decisions or at times confirm the same decisions of the subordinate courts, what if the Supreme Court itself becomes the victim of fallibility, as there is no court above the larger bench of Supreme Court in India?
Noor UL Shahbaz ,M.A, LL.M (GOLD MEDALIST) & Guest Lecturer and former Acting Principal at Sopore Law College, can be reached at im1415151819@gmail.com
