Article written by Professor Vishavjeet Chaudhary on "Guilt of innocence & the burden of justice" - The Tribune

November 11, 2016 | Professor Vishavjeet Chaudhary

The killing of eight suspected terrorists has caused massive outrage and raised many questions. It is only with the benefit of time, and with thorough investigation that the truth will be uncovered (or at least a version of truth) will be uncovered. Yet, some fundamental, basic principles need to be settled before any such inquiry is set up, to tame the discourse of any such expedition.

On a news channel, recently, a reporter said, “It has become fashionable to question any terror operations these days.” It is certainly unfortunate slipping journalistic standards that invites comments like this (Since when  has  discovery  for truth by a journalist become a question of “fashion”?). But it is also undeniable misunderstanding of the whole justice system and the procedure. A tenet that has stood the test of time, and that is sacrosanct is the presumption of innocence until proven guilty. This is enshrined in the Indian Constitution, the United Nation's Universal Declaration on Human Rights, our Criminal Procedure Code and in our common law roots.
 
The whole point of the justice system, and of the separation of functions of the police and the judiciary is to decide on whether someone has actually committed a crime. Different nations use different standards to come up with mechanisms on how to come to these conclusions. Some have juries decide on whether guilt has been proven. Others, like ours, have judges- who decide the same after hearing from both the prosecution and the accused.
 
The basic idea is that the State with all her power and might should be the one proving guilt rather than the other way round. It also ensures protection of arbitrary behaviour by the state — so that any allegations are substantiated by relevant and convincing evidence. So, in order to take away someone's liberty, and in order to punish them, the State has to prove beyond reasonable doubt that the accused did actually commit the crime.
 
This is, of course, a lengthy process — but also one in which the benefits outweigh the costs. It ensures a system where the principles of fairness, natural justice and procedural rigour are upheld. There are of course lapses — guilty people do unfortunately sometimes walk away free. But this is an even more compelling reason to preserve and cherish this right. By the same logic, innocent people are also convicted due to these lapses. The investigations, inquiries and trials are not beyond mistakes. And it is these mistakes that compel the high standards expected of the State. Unless we have a Utopian system, where all investigations are perfectly carried out without prejudice, mistakes or lapses, removing the presumption of innocence will be fatal.
 
As a democratic country and with a system that is well established, we must not forget these founding, non-negotiable values. One person wrongly convicted, one person wrongly killed is one too many — and that is the burden the justice system has to bear and work under.
 
The writer is Assistant Director, Centre for Penology, Criminal Justice and Police Studies, Jindal Global Law School, Sonipat