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  • Writer's pictureIRALR


This article is authored by Aditi Kotecha, a 2nd year law student at Hidayatullah National Law University, Raipur.


“To err is human”, is a typical defense taken by an individual to justify his mistakes. Of course, it is valid and justifiable, because in the end you learn from your own mistakes and no one is a saint without sins. But the question is at what expense? And this becomes even graver when the judiciary is to err, leaving behind several lives shattered and several others to follow up its decisions.

Each time the Judiciary made a mistake

Recently, Vishnu Tiwari[i], accused of false rape charges and provisions of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 was acquitted by Allahabad High Court after spending two decades of his youth in prison. The state government did not bother to release him after completion of 14 years term in the prison and his appeal was pending before the court for 16 long years. And now after complete incarceration of 20 years, he is expected, rather the only option left with him is, to restart his life in his mid-40s. During several media interviews, he spoke about the ordeals he faced inside the prison and also the difficulties he was going to face in this transformed world which for him has completely upturned in the past two decades. He also mentioned the plight of his family and how they were completely ostracized after the decision.

While there are many other aspects of looking into this judgment like the draconian Atrocities Act, the inefficiency of the judicial system with its various reasons like shortage of judges, pendency of cases, poor infrastructure etc., which are set forth time and again by various jurists and journalists and have been discussed in greater detail. But this case has also brought up the issue of judicial errors in front of the public. This backlog has been existent from the beginning, but becomes minimal concern whenever the shortcomings of the judicial system are discussed.

A famous book “Anita gets bail-What are our courts doing? What should we do about them?” by Arun Shourie talks a great deal about the backlogs judiciary has, its inefficient and troublesome system and many erroneous acts which are a blot on our judicial system.

Anita Shourie, a woman suffering from Parkinson’s condition and whose condition was deteriorating day by day, became the first person in her family to get bail in the environmental matter regarding the land which they didn’t own and house that was never built. In the end it was clear that facts of the case were utterly wrong and it had no basis. The case went on for around 6 years which had almost 50 hearings and Anita Shourie was not exempted from appearing in court even after her pathetic condition. Those tedious court appearances were good enough to harass her in that medical condition. This case is a perfect example of how loathing and cumbersome a judicial process can be.

In contrast to the above situations, recently the Bombay High Court passed two judgments which were publicly criticized and raised questions on the capability and understanding of the judges in our system. An accused of groping a minor girl’s[ii] breast was acquitted and his act was not considered to be sexual assault under section 8 of POCSO (Protection of Children from Sexual Offences) Act, 2012 because he did not have any skin to skin contact with that girl. Another accused[iii] who held the hands of victim (a minor 5 year girl) to unzip his trousers was not considered to be doing any sexual assault under POCSO Act. While the decisions are stayed by the Supreme Court, the kind of interpretation given by judges in these matters is inadmissible and taints the judiciary as a whole. One of the reasons which came forward was that sexual assault in the POCSO Act has a provision of minimum sentencing which the bench was trying to avoid by giving such interpretation and bringing the act under other provisions of Indian Penal Code.

The above cases show two extreme facets, one where innocent people suffer for years because of sloppiness of the system and another where people are being shielded from minimum sentence by giving vague interpretations.

Both the facets are linked to each other through a common string of judicial error that is scattered all over the system.

Basis of giving a judgment and where do we lack

When we particularly talk about criminal cases, the main task of a judge is to make the facts of the given case certain. For this, he has to evaluate the evidences available to him and establish the guilt, if any, of the accused beyond a reasonable doubt. The term “beyond reasonable doubt” is self-explanatory and it is what needs to be ascertained in order to prove guilt. The task is not as straightforward as it appears. When all the evidence point out in the same direction, the verdict becomes relatively easy but contrastingly if the evidences are weak or contradictory, mistakes are most likely to occur.

An experimental study based on the matter of how a judgment should be given and its common errors shows the following results.

Decision making in any case is mostly qualitative and not quantitative. As discussed earlier, the work of a judge is to make the facts of the case certain by his analysis and intelligence. And for this, a small proportion of quantitative analysis of the situation becomes necessary. The evidences in most of the cases are not enough and need to be combined in such manner that it makes sense when a court is arriving at a decision. This compilation is never easy and may involve a lot of errors which may lead to unfounded conviction. The inaccuracy here has two main causes, the first being absence of rationality and second being impreciseness in minimal rationality. By rationality here I mean basing the verdict on a valid reason or logic which is construed through evidence present. It is very likely that the judges have some pre-beliefs and notions regarding any circumstance, and due to this they generally tend to underestimate the strength of evidence present in cases. While the practice is not at all laudable, no person is hollow and the same cannot be expected from the adjudicators while looking into any case. In this case, their quantitative analysis, i.e., is looking into the probability of guilt becomes too close to 50% and that is what leads to wrong convictions and acquittals. It is also pertinent to note here that the probability considered here is normally subjective depending upon the amount of impact of prior beliefs on the adjudicator.

Another aspect which was brought up in the study stated is the unavailability of required and effective evidence. It was pointed out that in the cases even when there was a possibility of finding any evidence, it was not searched long enough and up to the potential of the court. While this aspect holds its significant relevance, the one discussed earlier has roughly equal importance as this one. The number of unfounded convictions and acquittals also remain roughly equal in both of them.

I agree that task of judges is much richer and complex than any statistical reasoning whatsoever presented. But the experiment in this regard cannot be overlooked, that too where its findings and conclusions are totally consistent with what normally happens. The uncertainty discussed in the experiment is fundamental to any decision given and optimal application of the theory of probability makes the task of adjudicators much easier, rational, and speedy, if not totally accurate but would surely reduce the errors.

While it is clearly visible that quantitative analysis including application of theory of probability and rational orientation would bring out positive results in general circumstances, the approaches seem to belong to a different world. The decision given by a judge is often intuitive and qualitative depending on the convincing power. This cannot be refuted, as anyway the independence of judiciary has to be kept intact in order to preserve the faith shown in it, nor the judges could be forced to show a report of how they came to a certain decision.

This situation can be handled in a better way by instilling the concept of rationality and quantitative analysis of the facts in budding judges right from the beginning. A judge, be it in district courts or high courts, undergo a training period before they start giving judgments independently. This training period could be utilized by showing the errors which are generally made by other judges (here again the term error is subjective but what is meant by this is the substantial error of looking into evidence or ignoring some or the error in compilation of evidences available etc., and not the error from perspective of any party in the case). They should be made aware of the benefits of judging a situation quantitatively (maybe not wholly, but partly) and how it helps judicial system in long run. The teaching of quantitative analysis would not be easy and will require experts in that field as well as experienced and retired judges who are willing to take up the job.

This system though is a kind of far-fetched dream as of now when we are struggling with many other issues, but would yield positive and compelling results when applied because it intends to make the judiciary very effective from the base itself. This would reduce the errors made and also the burden on the upper strata of the judicial system to a larger extent. And the substantial errors made in the cases above would come down to a greater extent.

[i] Vishnu v. State of U. P., 2021 SCC OnLine All 133. [ii] Satish v. The State of Maharashtra through Police Station Officer, Gittikhadan, 2021 SCC OnLine Bom 72. [iii] Libnus v. The State of Maharashtra through Police Station Officer, 2021 SCC OnLine Bom 66.

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