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Emergence of Commercial Justice - Insolvency and Arbitration

Harish Salve

Senior Advocate, Supreme Court of India

Democracy was sired by the tyrannies of monarchy. One of the vicious features of monarchy was the abuse of power of incarceration and death. From the Star Chamber under Charles I to the guillotine of the French Revolution, the dungeons with their chains have been used by despots over the centuries until the time that the human race set about to institutionalise human freedoms.

A core value of any democracy is the rule of law. Translated into criminal jurisprudence, this mandates a fair investigation and an impartial trial. The presumption of innocence, founded on the belief that it is better to let go a dozen guilty persons rather than to convict an innocent one, grew out of this revulsion against tyranny.

Modern society with its growing institutions has seen a different kind of despotism that stems from power without real accountability. Elected representatives of the people, with their control over the police, successfully distorted the criminal justice system to make it into a weapon to be wielded against the weak or political foes, and to shield friends and family. The invasion of our living rooms by the small screen with the explosion of news channels competing to break news led the anchors to realise the use of the criminal justice system for their evening forays.

The growing disillusionment with the status quo has had its backlash, the criminal justice system, consistent with the consumerist mindset, set about seeking instant gratification. So first we break news of a crime, and then seek immediate retribution. Pre-trial arrest and incarceration is seen as a just punishment for those convicted by news channels and newspapers. The menace of terrorism and the Robin Hood form of justice against alleged economic crimes have persuaded the judiciary to reverse its view of civil liberties – jail not bail has sometimes appeared to be the new mantra. The judgement of the Supreme Court in the money laundering may be right or wrong – but what cannot be denied is that it sends shivers down the spine of liberals – the schedule of the money laundering act shows a broad characterisation of predicate offences and even regulatory breaches could see arrests without bail. As a lawyer, I find myself at a loss to explain the architecture of the criminal justice system –the proverbial common man is at a complete loss to understand what is going on! In this scenario, a book that attempts to explain notions of guilt and innocence as perceived in current times, and the dilemma of the modern criminal justice system, is a commendable attempt at trying to demystify the subject.

Judgments of the Supreme Court have, as is inevitable, wavered from the strict to the liberal in matters as vital as the grant of pre-trial bail. With increasing complexity in investigating and proving crime the shift from the overbroad ‘no innocent should ever be punished’ syndrome, which gave benefit of doubt when perhaps none was deserved, was inevitable and that is yet another complex issue addressed in this text. In an act of courage, the author has squarely addressed social media abuse. Social media has empowered us by making available a means of having our voice heard. It equally has allowed each one of us to vilify all and sundry, mostly with careless disregard to the truth. A WhatsApp forward is viewed with the same sanctity as the gospel. Balancing free speech with the equally important right of privacy and protection of reputation is always going to be legal work in progress. And the newly discovered torture device of the colonial past – sedition – has been polished painted and put to use by politicians who are hypersensitive to criticism. The notion of sedition and its incompatibility with the contemporary notions of rule of law find a place in the book.

This book written in language that makes easy reading would be a must-read for those who want to make sense of what is going on and to identify areas of strength and weakness in the criminal justice system. Democracy lives in the hearts of its citizens and perishes when we take it for granted. The rule of law is to democracy what the heart is to the human body and the criminal justice system is at its core. We owe it to ourselves and to generations that would follow to fix what has gone wrong and to strengthen what is right, and this book is a must-read for those who are ready and willing to engage in this task. I wish the book all success.