Let the facts lead you in a case, not ideology: Nitya Ramakrishnan

An interview hosted by Roots Resources and the Nyaya Forum, NALSAR on Friday saw senior lawyer Nitya Ramakrishnan speak in some detail on her experiences as a lawyer and her views on the criminal justice system. .The interview was conducted by Mustafa Rajkotwala, who started the discussion with questions about the experiences that shaped Ramakrishnan's early days as a lawyer. .Watch the full interview:.Ramakrishnan spoke of how the Emergency of the 1970s played a formative role in this process. ."The emergency taught us what State power could do. I am not qualifying it as what "unrestrained" State power could do because the emergency showed us how easy it is for the State to slip away from accountability. Norms and institutions are important, but the emergency also showed us that they may prove entirely ineffective and irrelevant. Soon after the Emergency - I was still in college - I became a philosophical anarchist. I started looking for anarchism in virtually everything I read", she said. ."Later wisdom tells me you don't need a declared emergency for the State to lose accountability."Nitya Ramakrishnan.As a result, she remarked that her concern has always been on "how to liberate the individual from the tyranny of systems." "To that end now, I am turning more and more to Gandhi. So, my faith in systems is limited. Systems are as they do and the law fits in within that worldview of mine", she added..In the course of her talk, she went on to note that,"Criminal law is very, very close to human rights..Makes no sense to dilute evidentiary standards in Terror cases.Ramakrishnan, who has handled the defence in several high profile terror law cases, also spoke on what sets terror case trials apart from other trials. .She pointed out that there were additional challenges involved, in terms of the atmosphere in which a terror case is fought and the strictness of the law against an accused. She observed, ."They (terror law cases) are fought under a social hype situation. The charge of a 'nation in peril.' If you remember the Parliamentary attacks case, even the media were hostile... So there is that hype against which you defend. Then the laws itself are not very friendly to the accused.".She registered her disagreement with how criminal law norms generally in place to protect the accused are absent when it comes to special laws including those in terror cases. Opining that these special laws should not be there, she explained,."It makes sense to have a different classification of an offence which is a terror offence - it is not the same thing as murder. It may even make sense to give some additional time for investigating and filing a charge sheet. But it makes no sense to dilute evidentiary standards... Once you have caught somebody, there is no reason why the normal law should not apply. What has happened in years and years of having these special legislations which go against the grain of criminal jurisprudence is the systems have become incapable of applying the normal norms of criminal jurisprudence. You have (instead) confessions to police officers, you have 'jail not bail'... the police is overworked and under-equipped...they rely almost entirely on custodial abuse to bolster a case. Obviously, there are exceptions.".Let the facts lead, not ideology.Do not always view cases from the lens of personal ideology, Ramakrishnan emphasised on being asked if she had any advice for young lawyers. She observed,."While ideology is important, - it is important to view law from the lens of patriarchy, colonialism and all of that - when you are dealing with a case at hand, don't perenially wear your ideology glasses." ."Deal with the facts, let the facts lead you to conclusions and strategies rather than trying to twist and turn the facts to fit into your preconceived notions."Nitya Ramakrishnan.Other words of advice she had for young legal professionals and aspirants included:Read up generally on history, philosophy, science, politics and more to get an academic perspective. The discipline of reading is important.Be ready to get acquainted with areas not necessarily your areas of interest. Don't limit oneself to areas of interest. That will not work with trials.Acquaint yourself with law, and more importantly with the procedural law. Understand what the structure of the law is about and the Evidence Act. "You have to be very conversant with the law of evidence. It's such a lovely law, in any case. It's such a fascinating area of law", Ramakrishnan remarked. Do not despise any area of the law, because any law will help hone skills and teach you advocacy.Eschew verbosity and pay attention to your language..On criminal law reforms.Given her long experience as a criminal lawyer, Ramakrishnan also had a fair amount to speak on when it came to general reforms required to better the criminal justice system. ."... bail applications should be decided within a certain limited time."She asserted, to begin with.She observed that in matters of custody, Magistrates should be equipped with checklists and engage with prisoners, especially those in police custody, to know how they have been treated. Ramakrishnan said,."They (courts) must be equipped, have a checklist, deal with each prisoner who is coming from custody. They must know what all to ask, how to look at the remand papers, how to grant custody. It should be made clear to them (courts) that an accused is not obliged to move for bail, not under (Section) 437 (CrPC). When an accused is produced before you (court), you can release the accused on bail without an application. You (courts) are not obliged to remand. You may decide not to remand that person to police or judicial custody.".A related problem was that "Magistrates don't dispose of bail applications", even in cases involving low-penalty offences. She went on to highlight, ."There should be a specification that bail applications should be decided within a certain limited time. If it carries less than 7 years (penalty), I don't think the Magistrates should be given more than 3 days to dispose of the bail application. The Sessions courts should not be given more than a week. The High Court should also - specially where the sentence is low - not take more than 2 weeks.".She added, "You still see people languishing in jails despite half their terms being over. In special cases, like terror cases, where the allegation is just that A and B and C conspired to do something and nothing even happened - 10 years, 15 years, trials don't get over! They are in jail because of UAPA cases and no judge is ready to give bail."."I say that even for offences punishable with life imprisonment, there must be a limit. If a trial does not conclude in 5-6 years, then there must be an entitlement to bail."Nitya Ramakrishnan.She observed further, "There must be an upper limit for custody, even in serious cases - why not? How serious can it be if you're not doing anything about it? Often the process becomes the punishment. You feel that you may not succeed in actual prosecution so you think 'let them languish in jail', but for how long? I know of many cases where people are there on the basis of material that cannot be dignified as evidence and who have not got bail because they are POTA cases. Years on end, they are in jail. That is no solution to terrorism.".Another suggestion made was to put a system in place so that inadmissible material is struck off the record. Referring to how inadmissible police confessions may inadvertently end up influencing the course of a trial, Ramakrishnan said, "Even today you see huge chargesheets which say "accused disclosed (so and so)" with disclosures not leading to any discovery. On the face of it inadmissible! And many of the accused are such who are people to whom it may not even occur to have a lawyer... So this enters the stream of evidence somewhere...".Finally, she also mused that Judges should be empowered to award compensation suo motu where the prosecution is found unjustified, without making the wrongfully accused person go through the "atrocious process of malicious prosecution.".Media checks should be on case-to-case basis.While agreeing that the media has, on occasion gone overboard, sometimes virtually building mob hysteria, Ramakrishnan opined that the solution may not be found by issuing singular, broad media guidelines. ."I am also full of trepidation about broad-brushed guidelines because really it is a matter of case-to-case basis. The more you give general guidelines, the more it becomes difficult to interpret and then you're back", she said. .She went on to add, ."I am glad that they (media) are being called to account for irresponsible, excessive reporting, usurping the role of the police and the judiciary. They have to answer. They are as accountable as anybody else. But I have some issues about demanding from the Media the source of their information. In some cases, it is publicity that has forced investigation and forced a fair trial. In some other cases, it is publicity that has vitiated it. So I don't think a single proposition is possible in these circumstances.".Custodial violence, police brutality linked to opaque custody system.Answering a question concerning custodial violence by the police, Ramakrishnan noted that police brutality has to do with the nature of custody.She observed, ."The power that someone has over someone in custody, there is no law that can reach there. There is no directive of the Supreme Court that enters it, though it may be there outside on the walls of the police station."Nitya Ramakrishnan."It is an aspect of brutality, greatly enhanced by immunity and impunity. The systems do not punish them enough. There may be pious statements of the law, but I don't think a policeman indulging in torture feels he is going to be called to account", she said..She further opined that the only way to counter this is to ensure that there are consequences if police brutality occurs. As the discussion concluded, she also noted,."It (custodial violence) is also there because there is a social acceptance of it as somewhere inevitable for law enforcement. Which is nonsense."