Jallikatttu: Nehru on mind of a judge

22th January 2017

22th January 2017

Pt. Nehru found judges too cold-blooded

(Supreme Court vs Masses is the present theme on the Jallikattu Crisis in Tamil Nadu. A view on the two opposing sides was taken by Pandit Jawaharlal Nehru, a practicing lawyer to begin with, in a piece he wrote for a magazine, Modern Review, in pre-Independent India which now is available as one of a collection of issues under the title “Patriots, Poets and Prisoners.” We reprint an abridged vesion of the piece here with due, grateful acknowledgement).

By Pt Jawaharlal Nehru

How does a judge feel or think? This second question used to occupy my mind to some extent even when I was in practice conducting or watching criminal cases, lost in wonder at the speed and apparent unconcern with which the judge send men to the scaffold or long terms of imprisonment. That question,  in a more personal form, has always faced me when I have stood in the prisoner’s dock and awaited sentence, or attended a friend’s trial for political offences.

The judge has considered the evil deed that was done and he had meted out justice and punishment as he had been told to do by the penal code. Sometimes he had addeda sermon of his own, probably to justify a particularly heavy sentence. He had not given a thought to the upbringing, environment, education (or want  of it) of the prisoner before him. He had paid no heed to the psychological background that led to the deed, or the mental conflict that had raged within that dumb, frightened creature who stands  in the dock. He had no notion that perhaps society, of which he considers himself apillar and an ornament, might be partly responsible for the crime he’s judging.

He is, let’s presume, a conscientious judge, and he weighs the evidence carefullybefore pronouncing sentence. He may even give the benefit of the  doubt to the accused, though our judges are not given to doubting very much. But, almost  invariably, the prisoner and he belong to different worlds with very little in common between them and incapable of understanding each other. There may sometimes be an intellectual appreciation of the other’s outlook and background, through that is rare enough, but there is no emotional awareness of it, and with the latter there can never be true understanding of another person.

Sentence follows, and these sentences are remarkable. As the realization comes that crime is not decreasing, and may even be increasing, the sentences become more savage in the hope that this may frighten the evil-doer. The judge and the power behind the judge havenot grasped the fact that crime may be due to special reasons, which might be investigated, and that some of these may be capable of control; and further that in any event a harsh penal code does not  improvethe social morals of a group, or a harsh sentence those of an individual who has lapsed from grace. The only remedy they know, both for political and non-political offences, is  punishment and an attempt to terrorise the offender by what are called deterrent sentences. The usual political sentence now for a speech or a song or a poem which offends the Government is two years rigorous imprisonment and a lavish use of this is being made from day-to-day; but even this seems trivial when compared with the cases of large numbers of those people who are kept confined for four or five years or more, indefinitely, without conviction or sentence.

The Central Prison are full of “lifers”, prisoners sentenced for life, and others sentenced to long terms. Most of these ‘lifers” come in huge bunches in dacoity cases  and probably a fair proportion are guilty, though I am inclined to think that many innocent people are involved also, as the evidence is entirely one of identification. It is obvious that the growing number of dacoities are due to the increasing unemployment and poverty of the masses as well as the lower middle classes. Most of the other criminal offences involving property are also due to this terrible prospect of want and starvation that faces  the vast majority of our people.

Do our judges ever realize this or give thought to the despair that the sight of a starving wife or children might produce even in a normal human being? Is a man to sit helplessly by and see his dear ones sicken and die for want of the simplest human necessities? He slips and offends against the law, and tha law and the judge then see to it that he can never again become a normal person with a socially beneficial job of work. They help to produce the criminal  type, so called, and then are surprised to find that such types exist and multiply.

The major offences lead to a life sentence of 10 years or so. But the petty offences and the way they are treated by judges are even more instructive. The vast majority of these are buried in court fiels and get no  publicity; only rarely do the papers mention such a case.

There, they sit, these judges, in their courts, and a procession of unfortunates passes before them—some go to the scaffold, some to be whipped, some to imprisonment, to which may be added solitary confinement. They are doing their duty according to their abstract ideas of justice and punishment; they must consider themselves as the protectors of society from anit-social criminal elements. Do their thoughts ever go beyond these set ideas and take human shape considering the miserable offender as a humanbeing with parents, wife, children, friends. They punish the individual but at the same time they punish a group also, for the ripples of suffering spread out and go far. Those who have to die at least die swiftly, the agony is brief. But the agony is long for those who enter prison.

Two years, threeyears, seven years stolen from life’s briefspan—each year of 12 months, each month of thirty days, each day of 24 hours—how terribly long it all seems to the prisoner, how wearily time passes!

All this is very sad and deplorable no doubt, but what is the poor judge to do?Is he to wallow in a sea of sentimentality and give up sentencing offenders against the laws? If he is so soft and sensitive he is not much good as a judge and will have to give place to another. No, no one expects the judge to embrace every offender and invite him to dinner, but a human element in a trial and sentence would certainly improve matters. The judges are too impersonal, distant and too little aware of the consequences of the sentences they award. If their awareness could be increased, as well as a sense of fellow-feeling with the prisoner, it would be a great gain. This  can only come when the two belong to more or less the same class. Afinancier who has embezzled vast sums of public money will have every sympathy from the judge, not so the poor wretch who has picked up a rupee or stolen a sheet to satisfy an urgent need. For the judge and the average offender to belong to the same class means a fundamental change in social structure, as indeed every great reform does. But even apart from and in anticipation of that, something could certainly be done.

It  was Bernad Shaw, I think, who suggested that every judge and magistrate as well as every prison official, should spend a period in prison, living like ordinary prisoners. Only then would they be justified in sentencing people to imprisonment, or to governing them there. At least one well-known prison official has adopted it. This was Thomas Mott Osborne of the famous Sing Sing prison in New York. He trained himself by undergoing a term of voluntary imprisonment and, as a result of this, he introduced later on many remarkable improvements in the social rehabilitation and education of the prisoners.

Such a term of voluntary imprisonment will do a world of good to the bodies and souls of our judges, magistrates and prison officials. It will also give them a greater insight into prison life. But obviously no such voluntary effort can ever approach the real thing. The sting of imprisonment will be absent as well as the peculiarly helpess  and broken feeling before the armed and walled power of the State, which a prisoner experiences. Nor will the voluntary prisoner ever have to face bad treatment from the staff. The essence of prison is a psychological background of having been cast off from society like a diseased limb. That will necessarily be absent. But with all these drawbacks the experience will be worthwhile and will help in making the administration of the criminal law more human and beneficial.

At one time I was strongly opposed to the death penalty and, in theory, my opposition still continues. But I have come to realize that there are many things far worse than death, and if the choice has to be made, and I was given it, I would probably accept a death sentence rather than one of imprisonment for life. But I would not like to be hung; I would prefer being shot or guillotined or even electrocuted; most of all other methods I would like to be given, as Socrates was of old, the cup of poison which would send me to sleep from which there was no awaking. This last method seems to me to be by far the most civilized and humane. But in India we favour hangings.

A friend of mine who became High Court judge had a “crisis of conscience” when he has first to sentence a man to death. The idea seemed hateful to him. He overcame his repugnance, however, (he had to or else he would not have long continued in his job) and I suppose he soon got used to sending people to the scaffold without turning a hair. He was an exception and I doubt if many other sin his position have ever had such scruples.

It is probably easier to sentence a man to death than to see the sentence carried out. And yet even sensitive people get used to this painful sight. A young English member of the Indian Civil Service had to attend hangings in the local gaol. At his first hanging, he told me, he was thoroughly sick and felt bad all day. But very soon the sight had no unusual effect on him whatever and he used to go straight from the execution to his breakfast table and have a hearty meal.

I have never seen a death sentence being carried out. IN most of the gaols where I have lived as a prisoner executions did not take place, but on three or four occasions there were hangings in my gaol. These took place in a special enclosure, cut off from the rest of the prison, but the whole gaol population knew of it, perhaps because the unlocking of the various barracks and cells took place at a later hour on those mornings. I experienced a peculiar feeling on those days, and ominous stillness and a tendency for people to talk in low voices. It is possible that all this was the product of my own imagination.

The official defence of the whipping is that it is meant for horrible crimes, like rape with violence. In practice, it has a much wider range and in 1932, 500 civil disobedience prisoners were whipped. Whipping is usually administered in prisons by some low caste prisoner. No prisoner likes the job but he has little choice in the matter. The higher caste prisoners would in any event refuse to whip, and even the warders are reluctant to do so. It is interesting to compare the sensitiveness to whipping of the prisoners and warders with that of our judges and prison officials who order it.

Sentences of death and whipping impress us and pain us, but after all, they affect only a very small number of the scores of thousands who are sentenced by our courts. The vast majority of these go to prison, mostly for long periods over which their punishment is spread out. It is a continuing torture, a never-ceasing pain, till mind itself grows dull and the body is blunted to sensation. The criminal type develops, the ugly fruit of our gaols and our criminal law, and there is no fitting him in  then with the social machine outside. He is the square peg everywhere, with no roots, no home, suspicious of everybody, being suspected everywhere, till at last he comes back to his only true resting-place, the prison, and takes up again the tin or iron bowl which is his faithful companion there. Do our judges ever trouble to think of cause and effect, of the inevitable consequences of an act or decision? Do they realize that their courts and the prisons are the principal factories for the production and stamping of the criminal type?

We come back to the job of the judge and the prison governor and we can say this, at least, with certainty: that the deliberate infliction of punishment or torture of the mind or body is not the way to reform anyone, that (thought this may break or twist the victim it will not mend him, that it is much more likely to brutalize and deform him who inflicts it. For the inevitable effect of cruelty and torture is to degrade but the sufferer and the person who causes the suffering.

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