Justice served, with partiality

Mahatma Gandhi wrote in Young India (July 23, 1919), “Justice in British courts is an expensive luxury. It is often the longest purse that wins.” There was no change in the system after independence and moneybags are still able to twist and tweak the judicial process with impunity, a fact that’s borne out when some celebrity is in the dock.

The granting of interim bail to actor Salman Khan by the Bombay High Court, barely three hours after he was sentenced to five years of rigorous imprisonment by the district court, and that too on an oral prayer as the copy of the judgment was not available, is an eloquent commentary on the might of the haves. In fact, the prayer was made after the normal working hours of the High Court. Two days later, his appeal was admitted and sentence stayed. His lawyers and fans have since been asking shamelessly, must a celebrity suffer just because hundreds of thousands of undertrials are behind bars whose guilt is yet to be proven?

They argue that even the unprivileged should get expeditious justice but it is no ground to deny justice to those who have the resources to invoke their rights and move courts quickly.

In the same article quoted above, Gandhi had a piece of advice for such influential people, “…But it will be asked, what when we are dragged, as we often are, to the courts? I would say ‘ do not defend’. If you are in the wrong, you will deserve the sentence whatever it may be. If you are wrongly brought to the court and yet penalised, let your innocence soothe you in your unmerited suffering. Undefended, you will in every case suffer the least and what is more you will have the satisfaction of sharing the fate of the majority of your fellow-beings who cannot get themselves defended.” Will anyone listen to Gandhi? Will anyone with the “power of purse” undergo the tortuous process of law, much less share the suffering of the faceless, indigent class?

Heroes of reel-life fight against injustice to the common man — when an honest police officer beats up an influential criminal-politician on the screen, he gets a rapturous welcome from viewers. But in real life they are different, craving for differential and deferential treatment.

After 13 years of trial, Salman’s driver Ashok Singh pops up in the court and claims that he was driving the car. It is abhorrent but happens because anyone can lie on oath with impunity. Nobody is talking about the way Salman tried to drag the case and derail the wheels of justice; what is being talked about is that he has donated huge amounts of money for charity. It is definitely laudable but does not exculpate him from the offence.

There are certain issues that need reconsideration, like the amount of punishment awarded and the charge framed under Section 304-II (culpable homicide) of the Indian Penal Code, and not Section 304-A (death by negligence).

Sanjeev Nanda was sentenced to only two years’ imprisonment in the 1999 hit-and-run case, and that too in a retrial as he was initially acquitted. It was the media outrage over his ac- quittal that led to the retrial and his subsequent conviction for killing six people. A drunk Alistair Anthony Pereira drove his Toyota Corolla over a group of construction workers sleeping on Mumbai’s Carter Road on November 12, 2006. In the accident, seven people were killed and one was injured. There was a furore when the trial court sentenced him to six months in jail. Subsequently, the Bombay High Court enhanced it to three years. Salman was drunk while driving and hit five people sleeping on the pavement on September 28, 2002; one person was killed and another one was injured. Ordinarily, he should have been tried for causing death by negligence. But his police guard Ravindra Patil repeatedly cautioned him not to drive in a drunken state at such a high speed. Patil was the main prosecution witness whose statement nailed Salman. It was Patil who saved Salman when the mob that had gathered was about to thrash him. He played a stellar role by first saving the actor and then filing an FIR against him and standing firm during the trial, proving how one honest constable can make a difference.

In India, there is no sentencing policy and it is left to the absolute discretion of judges. In the US, a code which is followed. The application of charges is also arbitrary, which sometimes defies logic. In the Bhopal gas tragedy of 1984, in which around 25,000 people were killed and five lakh maimed, the Supreme Court diluted the charge and ordered trial under Section 304-A des- pite glaring scientific evidences to suggest that there was all probability of leakage of toxic gases and yet the management did not take any precaution against it. By no stretch of the imagination was it a case of mere negligence.

In Salman’s case, it’s inscrutable why the Bombay High Court showed so much indulgence towards him. The argument that bail is the law and jail the exception applies to undertrials, not to convicts. While undertrials are languishing in jails, convicts get latitude.

In 1985, Justice E.S. Venkatramaiah of the Supreme Court granted bail to Lalit Mohan Thapar, a major industrialist who was arrested on the basis of a Reserve Bank of India complaint that several companies run by him had violated the Foreign Exchange Regulation Act. The bail was challenged in Bihar Legal Support Society v. The Chief Justice of India, 1986, case in which the petitioner contended that the Supreme Court gives priority to important people at the cost of poor people. The Supreme Court disposed the petition saying that it shared the Society’s concern about the poor but it does not discriminate between the rich and the poor. Can this statement of concern for the depressed and the bail to the rich convince anyone? Laws, more often than not, are applied in such a way as to favour the “privilegentsia”, a word coined by Robin Crook who has commented: “Discretion runs from top to bottom.”

There can be a rule of law only when laws are applied uniformly, rooted firmly in the interrelated notions of neutrality, uniformity and predictability. Lord Denning described it in a judgment: “To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words: ‘Be you ever so high, the law is above you.’”

Laws, more often

than not, are applied in such a way as to favour the ‘privilegentsia’,

a word coined by Robin Crook who has commented: ‘Discretion runs from top

to bottom’

The writer is a senior TV journalist and

author