Last month, while speaking about the need for better court procedures during a lecture on crime, punishment and justice, Delhi High Court Justice Dr S Muralidhar spoke about how a “young” Railway Magistrate’s “poignant poem” on a case he disposed of under the Railways Act helped even the higher court.
“After a year serving in the Railway Magistrate’s Court, he actually wrote out a very poignant poem for all of us in Delhi Judicial Academy… it tore him to sentence the same young persons time and again…He said, ‘Sir, this system simply cannot work’,” Justice Muralidhar said during the lecture organised by the National Law University-Delhi on September 28.
That judge was Bharat Chugh. And the poem: “Tea seller and the judge: criminalisation under the Railways Act”.
Chugh, who served as Railway Magistrate for six months in 2016, resigned from the Delhi Judicial Services at the end of that year, after three-and-a-half years of service. He is currently a lawyer in the firm Luthra & Luthra.
Today, speaking to The Indian Express about the resounding resonance of his words, Chugh says it was penned during his short stint when he came across cases that “rankled his conscience”.
Chugh’s poem is about a young man who was arrested for illegally selling tea in trains. Chugh says the man was produced before him by Railway Police, charged under section 144 of the Railways Act, for selling tea without a licence in a train. This section prohibits unlicensed hawking and begging, with a jail term of up to one year or a fine of Rs 2,000.
In his poem, Chugh wrote: “…A young boy was produced before me, his abject poverty and emaciation was for all to see. In a rich India of poor people, being poor was his crime, the ‘Welfare State’ naturally decided that he should serve his jail time. He was accused of selling ‘tea’, without licence in a train, he was a migrant…you could see his sheer pain; with that torn shirt, as if modesty was just for the rich, law or justice, I couldn’t, at first, pick which.”
Chugh says he found the provision under Railways Act “extremely harsh” and “regressive”. “They (accused) somehow make ends meet by selling things like tea, biscuits, chips or doing odd jobs; they are often prosecuted and persecuted. After being tried, they have little alternative but to return to the same odd jobs, in and around the railway station, where they again face prosecution for the same offences,” he says.
In the poem, he wrote: “…The law required me to punish him, it’s dry, blindfold diktat and arbitrary whim; I chose to exonerate him, but didn’t say anything; how could I ask him not to earn his bread — when the state couldn’t bring…Could I think of a more honorable way, this boy could have earned a living — selling honest tea — with fair billing. If I went by the strict letter of the law and did fine, I wouldn’t be able to sleep with the already vexed conscience of mine. For legal authority was there, but moral authority I had none, my nation’s law had somewhat failed, and poverty had won!”
Chugh, who takes up cases pro-bono at times, says people do not hawk or beg in trains voluntarily, or with an intention to cause disturbance or nuisance to others, but out of “circumstantial duress and necessity”.
“It is an act of desperation, of survival and not a conscious career choice that they make…In such circumstances, is it fair for the state to prosecute them? Shouldn’t they be protected by the defence of necessity,” he says.
According to Chugh, he exonerated the tea-seller and others like him in most of the cases that he dealt with in those six months. “Any other view will amount to the state saying: ‘We cannot give you a job, and you are a criminal if you find yourself one’. Most of these accused do not have lawyers and it would be unfair to expect them to defend themselves. This is where the courts should recalibrate the proverbial scales of justice and actively inquire into the circumstances of the case and wherever needed, invoke this defence suo motu.”
In his lecture last month, referring to Chugh’s decision, Justice Muralidhar said: “…this kind of sensitive orders shaped our order in the High Court.”
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