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This is an archive article published on October 4, 2010
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Opinion More than the judgment

The importance of due process cannot be overstated,even if it is often time consuming

Jaithirth Rao

October 4, 2010 05:04 AM IST First published on: Oct 4, 2010 at 05:04 AM IST

The attention of the media and the interest of commentators (some erudite,mostly foolish) has been entirely on “what the judges have said.” The “content” of decisions is no doubt important. But the real winner in the current situation is the “process” by which the decisions have been arrived at. All parties,however,remotely associated with Ayodhya have had more than ample time to implead themselves,hire lawyers,present evidence and make arguments. The judgment is 8,500 pages long. Wonder of wonders — it was kept secret till the end. None of the judges told their spouses or their friends about it. The stenographers and the typists kept it under wraps. Fortuitously or otherwise,two judges have Hindu names and one has a Muslim name. There is a dissenting judgment (that prerogative of democracies); the majority judgments while concurring with the final decision nevertheless are two long documents with different threads of reasoning,again representing an approach which is uniquely democratic. The only complaint we can have is that the process was too slow; it just went on for too long. And then maybe that is not such a bad thing — a judgment in 1949 or in 1993 may have had to confront too many raw passions in the air. I am not making a case for dilatoriness or delays in justice (one of the most unjust features of our society) — but there may be some exceptions to the rule and this just may be one of them.

I was talking recently to a friend of mine who is an independent director on the board of a company. A senior manager of the company,who my friend knows well and respects a great deal,was accused by a whistleblower of being guilty of sexual harassment. My friend was horrified that he had to deal with a case,at least nominally impartially,when he was quite certain that the individual concerned was a “fine fellow” incapable of what he was accused of. Luckily my friend was not called upon to make an instant judgment. The company is a sensible one and they had a well-prescribed “process” to deal with sexual harassment matters irrespective of whether seniors or juniors were involved. The process took on a life of its own. Committees were constituted,evidence was examined,memos were written,files were created — and all this seemed to take up an unfairly long time. But guess what — my friend and his fellow-directors were not required to make any snap judgments — the process automatically threw up enough material to suggest strongly that the so-called “fine fellow” was guilty of impropriety at a minimum and he left on his own. The directors did not have to deal with whether the impropriety amounted to misconduct which deserved dismissal. Literally,the process saved the participants from making any decision,let alone a wrong one.

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To run a society on the basis of a modicum of justice,reasonableness and competence we need appropriate processes — processes which are undoubtedly far more complex than those designed to run a company — and the democratic republic we have established in India,with all its faults (which are quite numerous) may have stumbled on the fact that “process is king.” A good recent example is when we stopped so-called traditional tribal lands in the middle of forests being appropriated for mining purposes. This was because the original acquisition/appropriation process had not been adequate,proper and transparent. The tribals had not been properly heard; the concerns of naturalists (who defend the tiger a little bit like the human intermediary who pleads for Ram Lalla) had not been addressed. The atmosphere simply did not exist where all parties,even if they were dissatisfied with the content of the final decision had the satisfaction that they had been heard and they had literally had their “hour in court.” It is to the credit of our state,that the mining was stopped. Many have argued that restricting mining activity is not at all a smart thing to do. In other words,the content of the decision is not up to the mark. That may very well be true. But then if they do want to change the decision,they have no choice but to start the consultative and judicial process all over again. This is time-consuming and admittedly not the style of totalitarian competitors who are moving ahead economically. But it is the style we have chosen and something tells that despite inefficiencies (trains not running on time as they did in Signor Mussolini’s Italy),our way of doing things will both endure and prevail.

The expression “due process” has become synonymous with societies which attempt to manage their affairs in a civilised way. The whimsical decisions of a tyrant or a small coterie of tyrants who need not listen to the views of aggrieved parties may in fact on many occasions turn out to be qualitatively the correct decision. But such actions lack moral legitimacy and inject a disruptive venom into the system which over time destroys the vitals of even the most glorious empires. In 1947 and in 1950,most intelligent (!),well-informed,neutral observers,especially the efficiency experts predicted that the first republic of India would not survive for long. They warned us of break-ups,civil wars and accompanying famine and privations. They have been proved wrong not because the content of all the decisions we have taken have been of a high quality; in fact many decisions have been stupid and wrong. But by and large,the way in which we have tried to govern ourselves,i.e. the process we have chosen has held up. Judgments which surprise many of us,and which faithful stenographers and typists keep a secret (I am still amazed by that) and which maintain the creative tension between the executive and the judiciary are part of this wondrous process. On that note,I suggest that we pipe in hesitantly and softly with “two cheers for the Indian Republic.”

jerry.rao@expressindia.com