Thread by @barandbench

Nyaya Forum in collaboration with Roots Resources interviews Senior Lawyer Nitya Ramakrishnan on various aspects of Criminal Prosecution, Lawyering and the Justice System.

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Mustafa Rajkotwala introduces Senior Advocate Nitya Ramakrishnan

@RootsResource
@NyayaForum

Qn: What inspired you to study the law?

Nitya Ramakrishnan: I was a student of philosophy. In some ways, this is a continuation. Principles of deduction, inference, use of language, text... Perhaps that is an explanation.

Qn: What incidents impacted how you look at the law and its practice.

Reference is made to Ramakrishnan's article in the @thewire_in on George Fernandes

thewire.in/politics/why-g…

Nitya Ramakrishnan: 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.

Nitya Ramakrishnan: Norms and institutions are important, but the emergency also showed us that they may prove entirely ineffective and irrelevant.

Nitya Ramakrishnan: Soon after the Emergency, I was still in college, I became a philosophical anarchist... Later wisdom tells me you don't need a declared emergency for the State to lose accountability.

Nitya Ramakrishnan: The purpose is always, that has been my concern, is how to liberate the individual from the tyranny of systems.

To that end now, I am turning more and more to Gandhi

Nitya Ramakrishnan: So, my faith in systems is limited. Systems are as they do and the law fits in within that worldview of mine.

Qn: How did these thoughts shape your practice in the initial years? How has it moulded as you move forward today?

Nitya Ramakrishnan: As I said, I was in college when the Emergency took place. It was an important time for young India, it seemed to be make or break for us

Nitya Ramakrishnan: In my final year of law, a close friend got arrested for holding an MP hostage because workers in his constituency were in an abysmal stage. So this young political activist decided to hold him hostage, and he was arrested.

Nitya Ramakrishnan recalls that this friend referred to her several cases of the poor and indigent.

She also recalls that she was referred cases of police torture, torture of young homosexual prisoners, among other cases.

Ramakrishnan: That was not the days of internet... I would walk up to any senior lawyer and ask for advice. So actually, I caught hold of Ram Jethmalani in Supreme Court corridor and said 'Sir, how do you pin vicarious liability on higher officials.' He in fact spoke for 1/2 hour

Nitya Ramakrishnan: Criminal law is very, very close to human rights.

Qn: Could you tell us how your experience was in terror trial cases?

Nitya Ramakrishnan: That's a very wide question. But I'll try to answer.

Terror cases are different from other trials in terms of the atmosphere as well as in terms of the law, says Nitya Ramakrishnan

Ramakrishnan: They are fought under a social hype situation. The charge of a 'nation in peril...' There is that hype against which you defend.

The law is also stringent, Ramakrishnan adds.

She points out that these are additional challenges in terror cases.

Nitya Ramakrishnan, responding to another question: Cross-examination is the most difficult part of criminal lawyering.

Nitya Ramakrishnan: While dealing with an appellate brief, it is always useful to know the nitty-gritty of the trial process.

Asking or not asking a question in cross-examination may amount to an admission, she cites as an example.

Qn is asked on experience as a woman who is in the criminal law space.

Nitya Ramakrishnan: The only challenge that I recognise while doing a case is the case itself. I navigated it by applying myself to the case. I think I navigated more as a lawyer than as a woman.

Nitya Ramakrishnan: A trial is also a challenge because it is not limited to the law and law books.

Nitya Ramakrishnan: Suppose there is a medical witness, you have to virtually become a doctor to examine that witness.

Qn on how legal research, the practice of law has changed with reliance on technology.

Nitya Ramakrishnan: It is a great advantage.

However, she observes that sometimes nuances are lost and there are issues because research is dependent on a word search.

Nitya Ramakrishnan: Frankly, I like @indiankanoon the best. Because I consider it logically the best constructed. Because of the wide range of searches, probably because it was designed by scientists.

Nitya Ramakrishnan: On the other hand if you are sitting and reading a text, it gives you an answer not only to that word search but also the context. So you'll come across something else...

Qn: How would you advice law students today to make a career like you have?

Nitya Ramakrishnan: I am not a great one for dishing out general advice. But since you asked, let me try.

Nitya Ramakrishnan: Whether you do criminal trial... one thing is read up generally - history, philosophy, science, politics - get an academic perspective.

Particularly for when you go straight from school to law school - that discipline of reading is important.

Nitya Ramakrishnan: Second, while ideology is important - it is important to view law from the lens of patriarchy, colonialism and all of that - but when you are dealing with a case at hand, don't perenially wear your ideology glasses.

Nitya Ramakrishnan: 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: Be ready to get acquainted with areas not necessarily your areas of interest. Don't limit yourself to areas of interest. That will not work with trial.

Acquaint yourself with law, and more importantly with the procedural law.

Nitya Ramakrishnan: Understand what the structure of the law is about.

Likewise, 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.

Nitya Ramakrishnan: Do not despise any area of the law. Because any law will hone... teach you advocacy.

Eschew verbosity, pay attention to your language... yeah, I think that is enough advice for one evening.

Qn on changes that could be made to the trial courts in the country, what are the areas that need change

Nitya Ramakrishnan: Shall we restrict it to criminal courts for the moment?

Nitya Ramakrishnan: First the HCs will not deal with the matter because it has not gone to the Magistrate, then sessions court.

I do not know what the logic is, because if the law decides to give concurrent powers, why you must insist on this, especially in a matter of liberty.

Nitya Ramakrishnan: Magistrates don't dispose of bail applications even in cases carrying imprisonment of 3 years' maximum, 7 years.. one thing, give them the wherewithal...

Nitya Ramakrishnan: There should be a specification that bai 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.

Nitya Ramakrishnan adds: ... 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.

Nitya Ramakrishnan: 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.

Nitya Ramakrishnan: It should be made clear to them (courts) that an accused is not obliged to move for bail, not under S 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

Nitya Ramakrishnan: You still see people languishing in jails despite half their terms being over.

Nitya Ramakrishnan: 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!

Nitya Ramakrishnan: 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 trial does not conclude in 5-6 years, then there must be an entitlement to bail.

Ramakrishnan, referring to how official witnesses take time to appear: I know police is overworked. But liberty is more important. Of course, national security is important

But you have fancy agencies working and prosecuting cases - for days on end, their witnesses don't come!

Nitya Ramakrishnan: There must be a limit for how many adjournments they can take for producing witnesses.

Nitya Ramakrishnan also suggests 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."

Nitya Ramakrishnan: 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.

How long (can you let them languish in jail)? That is no solution to terrorism.

Qn asked on #MediaTrial

Ramakrishnan: By and large, I am opposed to bans. However, when it affects the right of somebody in custody & reporting goes beyond reporting, virtually building up mob hysteria that "they must go to jail", I think qns will be asked and are being asked.

Nitya Ramakrishnan: 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...

#MediaTrial

Nitya Ramakrishnan: Of course, there is a certain kind of publicity which is unacceptable. Courts can only juggle this on a case to case basis.

She refers to the Sahara case as well

#MediaTrial

Ramakrishnan: 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.

Nitya Ramakrishnan: But I have some issues about demanding from the #Media the source of their information.

Nitya Ramakrishnan: I can understand a case-to-case situation.

She expresses reservations about making general propositions one way or another when it comes to media regulation.

Nitya Ramakrishnan: 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.

Ramakrishnan: So I don't think a single proposition is possible in these circumstances

She adds that, otherwise, she is glad the media is being called to account

Specially the visual media has gone overboard in recent times, I am glad it is being called to account: Ramakrishnan

Qn asked on #custodialtorture

Nitya Ramakrishnan responds that those meting out custodial torture should face departmental proceedings, but are not facing it enough.

Nitya Ramakrishnan: Victims of custodial abuse often have to go to court, get orders, get directives. Even then... it is really not enough.

Ramakrishnan opines that police brutality has to do with the nature of custody.

She adds: It (Custody) is so opaque. Power corrupts, and absolute power corrupts absolutely.

Nitya Ramakrishnan: 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. The power is absolute.

Nitya Ramakrishnan highlights that the only way to counter this is to ensure that there are consequences if police brutality occurs.

Ramakrishnan on custodial violence: It is an aspect of brutality, greatly enhanced by immunity & 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

Nitya Ramakrishnan: It (custodial violence) is also there because there is a social acceptance of it as somewhere inevitable for law enforcement.

Which is nonsense.

Session has come to an end.