The Burden Of Proof
It’s one of the three oldest professions known to man. The other two, prostitution and smuggling, are on the wrong side of common social acceptance; and law — criminal law in particular — has always existed in a slightly murky twilight zone between good and evil, right and wrong. The fact that lawyers make a living out of something as basic as justice makes them a favourite butt of jokes (“why won’t a shark attack a lawyer? Professional courtesy”), and the best always seem to echo a truth. Given the legal penchant for ‘maxims’, there’s a Latin phrase for this: in joco veritas. In jest there is truth.
If we really want to assess how any institution, body or system is doing, we should listen to the language of the street, the things that are said by commuters on our trains and buses, in shared taxis, on our sidewalks. What they say about law, lawyers and the judicial system today is unprintable. One of the reasons for a widespread cynicism about our judicial system is that it seems to many to have become the refuge of the wicked and the corrupt. Too often, those we know to be guilty will spend time in comfortable jails and, when asked, will always say “let the courts decide.”
Why is this? Most assume that courts and judicial systems are about justice. They are not. They are about facts, and something called “truth”. Ascertaining facts and getting to the truth is, in law, a peculiar, tortuous, convoluted business. In its doing, justice very often falls by the wayside. And that leads to the cynicism and contempt we hear everywhere.
Knowing something to be true is very different from proving it. Facts are the law’s currency, but between a fact and its proof lies an abyss; and lawyering involves bridging that gap. A simple example from everyday life: Mr X sends a letter or an email, with legal implications, to Mr Y. Mr Y says he never got it. How does Mr X prove the fact that it was actually delivered? Assume that Mr Y’s denial is false. If Mr X cannot prove delivery, has “the truth” changed?
An even more immediate example: those embroiled in the 2G scam and who are currently living it up in Tihar Jail know that part of “the truth” that matters to a court: guilty or innocent. They plead innocence. Courts cannot get to “the truth” directly. They must follow a complex path of evidence, testimony, cross-examination and then weigh the entirety of the material to arrive at some conclusion. Is that conclusion an irrefutable truth? When an appeal court says differently, and the facts have remained as they are, has truth altered? Think Jessica Lall.
Truth and proof: the law shares these with mathematics. In the 1930, Kurt Godel, the legendary Austrian logician, mathematician and philosopher proposed his two “incompleteness theorems”, demonstrating (at least as I understand it) that even in simple arithmetic it is impossible to find a system that can always deliver a definite “true” answer (yes/no, true/false) in all situations. In his stunning book “Godel, Escher, Bach: an eternal Golden Braid”, which won a Pulitzer, Douglas Hofstadter examines this incompleteness theorem, among other things, and demonstrates how M.C. Escher’s images and Bach’s fugues also follow Godel’s postulates. You see shades of this in Christopher Nolan’s Inception. Are the Penrose Steps going up or down? What is the “truth”? In Akira Kurosawa’s classic, Rashomon, this is even more vividly demonstrated: the same criminal act is depicted from different points of view. Which one is “true”? Truth and reality are always subjective, and no one in India — and in Mumbai or Delhi especially — needs a reminder of this. This is a country of irreconcilable realities, each one “true” in its own context.
Escher: ascending and descending :: Are these steps going up or down?
(Click the image for a slideshow of more)
Legal standards of proof have always been unreliable. Courts do not decide matters strictly on the basis of the proof of every fact. They follow a system of approximation, something impressionistic and subjective, and decide what in all probability is most likely to have happened. Truth, like beauty, is in the eyes of the beholder.
The problem is, and always has been, a statutory diktat of what constitutes ‘evidence’ and ‘proof’. This law, our Evidence Act, is hopelessly out of step with our times. It is rigidly bound to the days of ink and paper, perhaps at best typewriters and, stretched a bit, to audio tapes and VHS footage. It demands the existence of something tangible in the pursuit of something that is by its nature fungible: the digital world. Any law that ties itself to a given technology is soon useless. In a world where technology changes by the minute, such a law gets dated with every passing day. A simple thing like “proving” an email or a digital online contract is almost impossible. In India, a digital record goes into evidence only after it is printed and assumes a physical form, and the process of doing that is so downright batty that anybody with even passing familiarity with technology would have to laugh at it.1 And there is nothing in the evidence act about cellphone technology, sms and other instant messages, chats, records of internet telephony. Yet this is how the world turns.
Therefore, justice is only an occasional and accidental by-product of this search for truth. The emphasis on unearthing the truth causes incessant problems. If a court arrives at “the truth”, does that ensure justice? Can you deliver justice without necessarily arriving at an absolute truth? Can you ever, in fact, arrive at an irrefutable, absolute truth at all?
Years ago, during the early days of the Harshad Mehta scam, a judge — later elevated to the Supreme Court — badgered a senior lawyer. “But what is the truth?” he kept asking. Finally, the exasperated counsel struck back. “Only God knows what the truth is,” he snapped. “Now can we please get on with the matter, if Your Lordship doesn’t mind very much?”
There are things in court that we lawyers take for granted; they seldom draw our notice. One of the tricks of practicing law is learning how to deal with tedium; and it is only then that you notice the little details like the engravings on judges’ chairs of India’s national motto. The seals of the High Courts too have it (it’s required by the High Courts (Seals) Act, 1950) and it includes the Upanishadic mantra Satyameva Jayate: the truth shall prevail. Truth, not justice. Why should truth, always unknowable, always subjective, always approximate, prevail? And prevail over justice? Where did that go?
At a time when the criminals in India’s public life want to do nothing so much as rush to a court, knowing that there time will be squandered in the futile pursuit of that which can never be irrefutably known — something that “God only knows” — perhaps we should refocus our attention and start by changing our evidentiary laws and forensic methods and recalibrating our judicial motto. Let justice be served, for example.