Judge Frank Caprio again
By Justice Katju, former Judge of the Indian Supreme Court, and Savaira Shafaq, Advocate, Peshawar High Court
This article is a sequel to an article we wrote on the death of Judge Frank Caprio, a municipal court judge of Providence, Rhode Island, USA, who had become internationally famous due to his compassion while deciding cases.
🔗 In Memoriam — Judge Frank Caprio
Should a Judge Have Compassion?
The question we will discuss is whether a judge should have compassion while rendering justice.
Many say compassion should have no place in court verdicts, and that a judge should only follow the letter of the law. That is the approach of the positivist school of jurisprudence.
Such people forget that there is a difference between law and administering the law. Law is not mathematics — it has to be administered to human situations, not like a computer.
Judge Caprio’s Lesson from His Father
Judge Caprio himself explained this in an interview about the strong admonition he received from his father (whom he regarded as the most decent person he had known) after his very first day on the bench.
🔗 Caprio’s Interview
A poor woman with 3 small children was charged for illegal parking. She pleaded:
“I can’t pay. I have three kids.”
Judge Caprio thought she was trying to fool him. He imposed a $300 fine and said her car would remain booted unless she paid.
After court, he asked his father: “Dad, how did I do?”
His father replied: “That woman.”
- “What woman?” asked Judge Caprio.
- “That poor woman with three kids whom you fined 300 dollars,” said his father.
- “Dad, she was arrogant,” said Judge Caprio.
- His father responded: “She was scared. You should have talked to her, understood her problem. You can’t treat people like that.”
Judge Caprio said he never forgot that admonition, and for the rest of his 38 years on the bench, he never behaved like that again.
Ancient Wisdom — Brihaspati
The ancient Indian jurist Brihaspati wrote:
“ केवलं शास्त्रमाश्रित्य न कर्तव्यो विनिर्णयः ।
युक्तिहीनविचारे तु धर्महानिः प्रजायते ॥ ”
kevalam śhāstram āśritya na kartavyo vinirṇayaḥ
yukti-hīne vichāre tu dharma-hāniḥ prajāyate
Translation:
“A judgment should not be given by merely following the letter of the law.
“For if the decision is wholly unreasonable, injustice will follow.”
Judge Caprio would never have heard of this shloka, yet he instinctively followed its spirit. In every case he heard, he considered not just the law, but also the personal circumstances: number of children, financial condition, health, and reasons for breach of the law. Equity and compassion, not just the letter of the law, guided his decisions.
Shakespeare’s Mercy and Lord Denning’s Wisdom
In The Merchant of Venice, Shakespeare’s Portia declared that justice should be tempered with mercy.
A real-life example was given by Lord Denning in Due Process of Law.
Some Welsh students, upset that radio programs were broadcast in English rather than Welsh, invaded the High Court in London and shouted slogans. They were convicted of contempt and sentenced to three months in prison.
On appeal, Lord Denning upheld the seriousness of the offense but changed the sentence:
“These young people are no ordinary criminals. There is no violence, dishonesty or vice in them… They wish to do all they can to preserve the Welsh language. Well may they be proud of it… They have done wrong — very wrong — but, that having been shown, I think we can, and should, show mercy on them.”
He ordered their release.
📖 Morris v. Crown Office, (1970) 2 Q.B. 114
Conclusion
In our opinion, judges should display the same wisdom as Lord Denning and Judge Caprio.
In every case, judges must carefully consider all facts and circumstances, including mitigating factors, before passing an order — not merely the letter of the law.
(Markandey Katju is an Indian jurist and former judge of the Supreme Court of India who served as chairman of the Press Council of India from 2011 to 2014)
