Late last month, Justice M. Mishra of Calcutta’s Sealdah Court sent a woman who slapped a traffic constable to three days’ judicial remand. But just as the prison van carrying her was about to set off, he retracted the order and set her free. “I realised I was wrong…...wrong,” Justice Mishra is reported to have told the lawyers present. The woman had hit the traffic constable because she and her daughter were nearly run over by a bus and she held the policeman responsible for it.

At Sealdah Court a few days later, Justice Mishra politely declines to comment on the decision that has earned him, in the words of a legal commentator, “enormous reverence for the humanness with which justice was delivered”. But the revocation gives rise to a question. How exactly does a judge in a court of law come to that final conclusion about right and wrong? The body of evidence is, of course, the fundamental element upon which the decision is based. But is there something beyond that — some instinct, gut feeling, a judge’s sense of humanity — that guides him or her towards the right judgement?

“Sometimes you just know that someone is guilty, but you have to let him go because there is not enough evidence. That’s when you feel helpless.” That’s what Dr Justice V.S. Malimath, chairman of the committee for reforms of criminal justice in India and formerly Chief Justice of the Karnataka and Kerala High Courts, says when he talks about what goes on in the mind of a judge when he has to decide whether to send someone to prison or let him walk. “And sometimes, though there is sufficient evidence that a person has committed a crime, you have to assess the motive behind it before delivering your verdict and pronouncing your sentence.”

“The first consideration is the evidence,” explains Justice Malimath. In Indian criminal law, the onus is on the prosecution to prove a person guilty “beyond reasonable doubt”. Malimath points out that while the defendant has the right to establish counter proof and proof of innocence, it’s not binding on the accused to prove his innocence. His only role, as it were, is to say, “prove it”. If the prosecution leaves any doubt whatsoever in establishing a person’s guilt, the accused has to be given the benefit of the doubt and allowed to go free, says Malimath.

One of the most high profile cases where the accused was awarded the benefit of the doubt was the .J. Simpson trial where the American football star, accused of murdering his ex-wife and her friend, was allowed to walk free. The reason cited was lack of substantial evidence. In India, in a judgement dated December 3, 1999, a Delhi sessions court gave the benefit of the doubt to Santosh Kumar Singh, who was charged with the rape and murder of a fellow law student, Priyadarshini Matoo. The verdict was subsequently challenged in the Delhi High Court and rendered “set aside” by the bench of Justice R.S. Sodhi and Justice P.K. Bhasin on October 17, 2006. The latter judgement not only found the defendant guilty under Sections 302 (murder) and 376 (rape) of the Indian Penal Code but also expressed shock at the earlier verdict.

That is just one example of how different judges may view and interpret the same evidence somewhat differently, while operating within the same framework of the law. Indeed, Malimath and other judges speak about “something over and above just the material evidence” when it comes to making a decision about delivering verdicts and meting out punishment. While some claim to look only at the hard facts, others talk about relying on other determinants, ranging from experience to empathy, insight to intuition, a sixth sense to spiritual guidance. For instance, after he retracted his earlier order, Calcutta’s Judge Mishra is reported to have told the lawyers present, “Something within me told me I was wrong.”

However, some legal experts hold that when a judge acts in a “humanitarian” way, he really invokes an essential element of the country’s criminal justice system. Says Calcutta High Court lawyer Joymalya Bagchi, “Indian laws are ‘pro-weak’. When a judge exercises empathy or insight, it is really the exercise of the powers vested in a judge to deliver justice as per the legal system of our country.”

According to Bagchi, it is not unusual for a judge to consider and reconsider a case before finally coming to a decision. “Until he is satisfied that he has done the utmost to ensure that justice has been done, he may think and rethink as many times as it suits him before finally signing a verdict.” Calcutta High Court lawyer Aryak Dutta clarifies that in legal parlance this is often referred to as “judicial conscience”.

In fact, even when a verdict has been delivered, a judge can decide to admonish a person who is being acquitted as well as speak words of encouragement to someone being given a jail term. Judge Mishra is understood to have told the woman who hit the constable, “But then this cannot continue. You just can’t assault a man in uniform who’s performing his duty.” And sentencing him to six years in prison for illegal possession of weapons, Judge Dattatreya Kode of the special TADA court told actor Sanjay Dutt not to lose heart. “You should not be perturbed. …Act till you are 100. I have only taken away six years.”

Speaking on condition of anonymity, a Calcutta High Court judge says, “Judgements are serious business. A person’s very fate depends on your decision. So it is not enough to look at the material evidence. As a judge you have to exercise the x-factor, the same inexplicable quality that distinguishes mere education from intelligence.”

He recounts a case he had once handled as a lawyer. He had defended a woman, who had killed a man, her neighbour, who she thought was harming her child. He explains, “The woman was chopping vegetables when she heard her son scream. She ran out, knife in hand, and saw that the neighbour was attacking her son. As a reflex action, she drove the knife into the man. The judge who heard the case let her off the hook. She was a mother trying to protect her child. She acted on the spur of the moment. If she had repeatedly stabbed the man, it may been have been a different story.”

Justice Malimath says that for a judge, the delivering of a judgement is a complex process of weighing the evidence, hearing the arguments and interpreting them all with insight. Clearly, it’s the “insight” that often makes the difference between a right and a wrong judgement.