#MeToo And Due Process — How It Looks In India
The expanding movement to denounce sexual assault is a symptom of the problem, not the cure.
NEW DELHI — This is the age of absolutes. Absolute majorities, totalitarian governments and extremist ideas that allow for no difference of opinion. In this age of absolutism, ideas and thoughts that thus far identified themselves as "liberal" have fallen prey to the same extremism.
Liberalism has generally been understood as a political philosophy that prioritized liberty and equality, and sought to strike a balance between individual liberty and the power exercised by society and the state over an individual. Freedom to express and defend ideas that may not find favor with the majority is at the core of liberal thought. But today's "liberals' are so vehemently opposed to points of view different from their own that they are no different in political posturing from their sworn opponents from the religious or political right.
The recent furor created by the "liberal" junta over M.J. Akbar's decision to seek legal redress demonstrates that no matter who has power at any given moment, due process is always the first to be sacrificed. After reading the moving testimonies and judging just by their sheer number, we may each be personally convinced of Akbar's guilt. But we must realize that our personal conviction is not a substitute for due process. "Every woman must be heard" is the cry of the moment. And be heard she must. But we must not lose sight of the legal maxim audi alteram partem, which is the bedrock of our legal system and a principle of natural justice. It means "hear the other side too".
People hold their personal convictions to be above the law.
If you join the dots, an ugly and dangerous pattern starts emerging that cuts across political ideologies. That of people holding their personal convictions to be above the law. Preventing lawyers from representing a person or position that is unpalatable to the majority might begin with the Jyoti Singh gang rape and murder case, but it is not long before it transforms into protest marches against others in a very different context. Condemning a person as guilty before the trial commences may start with another heinous act but quickly spirals into attempts to lynch student leader Kanhaiya Kumar outside court for being an anti-national.
Let us once and for all disabuse ourselves of this idea that there exists a crime so heinous that it does not deserve to be defended. The law laid down by the Supreme Court on this subject is unequivocal: "Every person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society, has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him."It is not the fact of taking up a case on which a lawyer must be judged. It is how he or she conducts the case.
No doubt the problem is complicated by the fact that the #MeToo movement is a result of the failure of due process. It is the direct consequence of years of the legal system's inability to provide redress or even an environment where women feel safe seeking legal recourse. Despite this, we must not lose sight of the fact that the #MeToo movement is a symptom of the problem; the error lies in seeing it as the cure. The solution to the failure of due process is more stringent adherence to due process, not less. The churning that the #MeToo movement is causing is much needed and for the better, but it must result in the evolution of the mechanisms of justice delivery. To see it as justice in itself is wrong.
We must remember that when vigilante justice becomes the substitute for due process, it is the more powerful and more numerous of society who will always wind up winning.
*Nizam Pasha is a lawyer practicing in the Supreme Court. The views expressed in this article are personal, however much he may like to speak for the Supreme Court. He can be reached on Twitter @MNizamPasha.