MORALITY, LAW AND THE INDIAN JUDICIAL SYSTEM

 

“A tea Seller and a Judge”

A story of Criminalisation of the poor under the railway Act

Of a criminal,this judge writes –after thinking endlessly,

For days and nights;

Ayoung boy was produced before me,

His abject poverty and emanciation was for all to see.

In a rich India of poor people, Being poor was hid crime,

The ‘Welfare State’ naturally decided-that he should serve his jail time.

He was accused of selling ‘tea’,without license in a train,

He was migrant from a drought ridden village,

You could see his sheer pain;

His father had hung himself on a tree,

From the mountain debts on seeds, he wanted to break free.

With that torn shirt,as if modesty was just for the rich,

Law or Justice, I couldn’t ,at first,pick which;

Why do you seek justice?

This is a court of law u see-

Couldn’t say that to him and still be me;

An ‘end it itself’ law had become, why?

Couldn’t we re-calibrate the scales of justice, should we try;

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 honourable way, this boy could have earned a

Living-selling honest tea-with fair billing,

Couldn’t ask him for the illusionary dole to be handed out by the state;

Could I deprive him of self respect , his rare dignity waste;

If I went by the strict letter of law and did fine,

I wouldn’t be able to sleep with th 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!

 

Morality and law have often been weighed against each other. For the longest time, jurists have stumbled upon this question – does morality have its place in law? Morality is not legally tenable, it cannot be supported by legal works, cases or jurisprudence; it’s personal and varies from one person to another and continuously changes. So, can judges as fair and impartial arbiters allow their sense of morality? Edmund Burke, once famously said, “morality is more important than law because law depends on morality”. Recently, this debate has been sparked in India again with a viral poem written by Bharat Chugh, a Partner Designate in a top tier firm, Luthra & Luthra.

The case that moved, Mr Chugh to write this poem was during his stint as the Railways Magistrate. Section 144 of the Railways Act, criminalizes selling tea on the train without the license. Hawking or begging on the train also opens them up to a risk of a jail term of 1 year or a fine of 2000/-

The problem with the section lies with the people it often targets, it brings into the radar people who are deprived and are begging and hawking because of utmost necessity. These people not only do not have the knowledge or the money but are forced to resort to these activities. They are already victims of circumstances and law further incriminates people who have already been torn down by the system. The Constitution has to be abided by and given supreme importance to and our Constitution requires that justice is done to all the people who are downtrodden.

The judge through this poem highlights that the law has failed to support the people who are already deprived which in-turn means that it has been unsuccessful in embodying the Constitution in its letter and spirit. The author of the poem later clarified the problem with the law by advocating for the people who are doing these activities not by choice, but by force. voluntarily, or with an intention to cause disturbance or nuisance to others, but out of “circumstantial duress and necessity”. He stated that such acts are of desperation, of survival and not a conscious career choice that they make. This, in such circumstances, they should be exempted through the defence of necessity and protected instead of being prosecuted.

Mr Chugh during his stint as a Railway Magistrate exonerated the tea-seller and others like him in most of the cases that he dealt with in those six months. He also discussed the states’ failure to provide for jobs and the increasing unemployment in the country and stressed that under such circumstance one cannot be called a criminal if he finds one. He stressed the fact that these people more often than not because they do not have lawyers. Lastly, he highlighted that these were the kinds of cases that 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.

This clearly highlights that even though morality and law are separable, they need to meet at some point for us to reach the ends of justice.

By

Prerona Banerjee
Student Reporter- INBA