New Delhi, Oct 5 Supreme Court judge Vikram Nath on Monday said compassion in judging is not favour or leniency, but the first duty of compassionate judging is to never let legal abstraction erase human reality.
Delivering the second Prof. (Dr) N R Madhava Menon Memorial Lecture here, Justice Nath said compassion cannot only belong to the party with whom public sentiment happens to sympathise.
The victim deserves dignity, the accused deserves fairness and the prisoner retains constitutional rights, he said.
Justice Nath was delivering the annual lecture on the topic of "Judging with Compassion: Human Understanding in the Practice of Law".
"Let me say what compassion in judging is not. It is not favour and it is not leniency. It is not deciding for a party merely because that party is weak, or allowing emotion to overcome evidence. And it is certainly not abandoning the law.
"Compassion in adjudication means understanding before judging -- the discipline of seeing the human circumstances in which a legal controversy arose. Its opposite is not strictness, which is sometimes exactly what an institution needs. The opposite of compassion is indifference," Justice Nath said.
The judge, who is also the executive chairman of the National Legal Services Authority, said impartiality and indifference are not the same thing.
"The blindfold on Lady Justice does not mean she cannot see. It means she does not look at who stands before her before deciding what is right. She still weighs and weighs with care. A judge must be impartial, but never indifferent," he said.
The judge said courts must pay attention to how those who pass through the system experience justice.
"For the survivor made to relive her trauma in the witness box or the litigant who cannot follow the language of the proceedings, the process is what justice actually feels like," he said. "We must ask whether, for too many, it has itself become a trauma," he said.
On cases involving survivors of sexual violence and child witnesses, Justice Nath said "a trauma-informed courtroom is not a softer courtroom".
"A compassionate court is not a court with a favourite side. It is a court that can understand every side, without becoming captive to any. In an age of trial by television, when the public often decides before we do, that takes the courage to be fair to the person everyone has condemned and the courage to be firm with the person everyone has forgiven," he said.
