The Aarushi Verdict: Not 'ferocious penal law' but the ferocity of a judgement

Judges' Writing Styles (And Do They Matter?)

– Judge Richard Posner

Alexander Welsh in Strong Representations: Narrative and Circumstantial Evidence in England, draws particular attention to a lawyer’s charge to the jury, which included a statement that:

“...a presumption, which necessarily arises from circumstances, is often more convincing and more satisfactory than any other kind of evidence, because it is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof of guilt... But if the circumstances are such, as when laid together bring conviction to your minds, it is then fully equal, if not... more convincing than positive evidence.”

Judge Sham Lal’s 210 page verdict, characterised by lexical callisthenics, has provided considerable cause for amusement, bewilderment, justified angst and outrage. The case is one based purely on circumstantial evidence, and the accused have been sentenced to life imprisonment.  For the sake of brevity, let it be stated that the judgement in Aarushi Talwar’s murder case stands out as an example of a mediatised filicidal narrative which has now been concretised into judicial dogma. 

One approach of analysing the judgement could involve a dissection of the facts and evidence, usage of case law and legal principles, and test whether it stands to judicial scrutiny in the appellate courts. That would be legalistic, and stand the peril of being laden with legalese.  As it is, most of those who read the judgement with “dictionary in hand, decisions in head, and the Constitution at heart” are reeling from its effects. 

Since this case has been characterised by prejudice from the very beginning, a more interesting approach would be to look at it from the prism of the Law and Literature movement, one of the aspects of which is law as literature – it considers law to be capable of being subject to the kind of critique that literature is, by identifying the use of rhetoric, the construction of narratives (in a trial, by lawyers, and by the judge) and so on. One of the tools of analysis and critique is to examine the rhetorical flourish in a judgement and see how just or otherwise the effects are. 

Walter Benjamin in Critique of Violence and Derrida in Force of Law: the Mystical Foundation of Authority draw our attention to how legal language, though clothed with benevolence and morality, itself becomes a vehicle for perpetrating violence. Anél Boshoff also makes a strong case for resisting the belief of legal language and judicial interpretation as being “neutral” or free from violence. One could, for instance, consider the Allahabad High Court’s judgement in the Ram Janmabhhoomi case, and see how the court’s reliance on “the faith and belief of the majority” instead of settled principles of law has so pernicious an effect. 

Judge Lal’s opening salvo, “The cynosure of judicial determination is the fluctuating fortunes” of the Talwars, immediately raises suspicion. “Cynosure” of attention becomes relevant in a melee, not in a judgement, the sole purpose of which is to deliver justice. This is sometimes far removed from deciding the fate of an accused, especially in an atmosphere of intense speculation, which anyway makes one sceptical about the probability of justice being dispensed.  “To begin at the beginning, it appears apposite to deal with the concept of proof beyond reasonable doubt” provides some relief from the apprehension of a travesty being perpetrated, for presumption of innocence and proof beyond reasonable doubt form the strongest bulwark against an innocent bearing the brunt of the law’s force. 

However, this relief proves to be a reverie because with “Our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic”, it becomes evident that Judge Lal would vindicate the faith of the prosecution.

It has been a long-standing demand of jurists and practitioners of criminal law that the prosecution must be kept at more than an arm’s length from the investigative agency, for such working in tandem is nothing short of an unholy nexus. Securing convictions is the raison d'être of the prosecution, and it is but natural that in a case where the investigation has been a lesson in tomfoolery, the prosecution would pull out all stops to fulfil its objective. It must also be remembered that the CBI in its closure report had stated in no uncertain terms that there were “major shortcomings” in gathering evidence to link the Talwars to the double murders, and “even the circumstantial evidence has critical and substantial gaps.” India is not Denmark, but “something is (definitely) rotten” when the Talwars were charged with murder and destruction of evidence despite this closure report.

Therefore, convinced of the circumstances “triggering a plurality of persons into an adventure in criminality”, Judge Lal goes about applying his judicial (certainly not judicious) mind, likens the accused to “freaks in the history of mankind” and ensures that the full force of “the ferocious penal law” is brought down on them. 

So much for the violence of law’s rhetoric. Let us now direct our attention to the role of “imagination” in judicial interpretation, as James Boyd White has so ably analysed. Presumptions, often informed by prejudices, constitute a critical component of such “imagination”. The Criminal Tribes Act of 1871 which branded the members of certain tribes as hereditary criminals is a pertinent example. This law, reeking of obnoxious bias, has been repealed, though the prejudice of law enforcement agencies remains entrenched. 

Closer home would be the deep-rooted misogyny and sexism in courts’ judgements. The Sixth Amendment of the US Constitution provides an inalienable right to an impartial trial, and if it is found that prejudice or extrajudicial considerations have influenced the jury, a trial is considered vitiated, and the accused is either acquitted or a retrial is ordered. The Remmer decision of the US Supreme Court, which is also mirrored in our constitutional guarantee of a free and fair trial, seems to have eluded Judge Lal. 

So, how does this prejudice-heavy “imagination” get canonized as judicial reality? Conclusions, which can at best be regarded as figments of a fertile imagination, are masqueraded as incontrovertible “proof.”

First, the “motive” for the murders. Clutching the “honour-killing theory” floated by an unscrupulous cop, lapped up and beaten to a pulp by a media baying for blood, Judge Lal relies upon Aarushi’s “vaginal status”. Despite the glaring lack of concrete scientific evidence, the facts of her vaginal cavity being enlarged and her hymen being ruptured were used to hold that she was habituated to sexual intercourse. The temptation of believing the media’s voyeuristic fable of Hemraj being Aarushi’s sex partner was too strong to resist for the good judge. 

Second, and based on the aforementioned “fact”, Judge Lal gives “willing suspension of disbelief” an entirely different paradigm. Hemraj’s corpse was found one-and-a-half days after Aarushi’s murder came to light. It was in a badly decomposed condition, and the post mortem had revealed a “swollen” penis. Redefining credulity, conflating “erect” with “swollen”, imagining “swollen” to mean “turgid”, the good judge concludes that Hemraj was either engaged in sexual intercourse, or had just got done at the moment he was killed. The manifestation of a foetid imagination scripting a new chapter in the annals of medical history? Your guess is as good as mine. 

Third, solving the mystery of the half-emptied bottle of whiskey, on which no clear fingerprints had been found. Because the Talwars “were brought up in a liberal atmosphere with modern outlook”, had admitted to regular alcohol consumption, it was held that Rajesh Talwar had drunk the whiskey to “ease off the tension” after having murdered his daughter and his servant.

Fourth, the murder weapon (a “small, thin surgical instrument”) which remains missing till date. Judge Lal assumes a scalpel must have been used, and the dentist couple managed to make it vanish into thin air. Piling fable on to erroneous judicial interpretation, he cites precedents where absence of the incriminating weapon did not affect the prosecution’s case since there was other reliable and clinching evidence to nail the accused. That this case was one of circumstantial evidence must have been too trivial to be considered by an “imagination” which was running riot.

We continue to have abiding faith in the apex court, but this case must force a rethink. In its judgement dismissing the review petition against the magistrate’s court committing the case to trial, the Supreme Court queered the pitch even further. The fact that the Talwars had essentially assailed the magistrate’s order and not the Supreme Court’s judgement upholding the same was ascribed to such a step not falling “within the realm of petitioners’ rational acceptability” and branded a “misuse of jurisdiction”. Can the Talwars expect any relief from either the High Court or the Supreme Court after such irrational strictures have been passed against them?

No, Judge Lal. It is not the “ferocious penal law” which shall be a deterrent. Rather, it would be the ‘ferocity’ of your judicial reasoning which shall be sending chills down our spines, more than the gruesome murders did. It shall not be a deterrent, but a fearsome impediment to our having faith in the courts of law. 

( Saurav is a lawyer who teaches Media Law & Jurisprudence in Mumbai and Pune)