Sunday, 8 December 2019

Verdicts that rattled the nation

Updated: May 23, 2015 5:25 pm

High Court’s order has set off a heated public debate in the country. Many claim that this leniency in these cases is yet another example of judicial compassion towards the rich and mighty. They have cited the cases of a staggering number of under trials languishing in prisons who are too poor to engage high-profile lawyers who can smoothen their passage to liberty

For the last one week, the whole country has been rattled with tremors all along its length and breadth. Apart from the scary earthquakes, the judiciary in India has seemingly given jolt after jolt to the people. The granting of bail to Salman Khan in a hit-and-run case and acquittal of former Tamil Nadu Chief Minister Jayalalithaa from corruption charges, and also suspension of sentence and granting of bail to  Raju Ramalingam in famous Satyam fraud case took the nation by storm. The cases have nothing to do with each other, yet, because of the timing, the former Tamil Nadu Chief Minister Jayalalithaa and Bollywood superstar Salman Khan are going to be compared with each other. Not because of Jayalalithaa being movie star in the past, but because both happen to be convicted criminals, albeit for very different crimes. The former CM was convicted for corruption, while Khan was found guilty of killing a person while driving drunk and running away from the scene of the crime.

The Salman saga

The Bombay High Court’s order suspending the five-year imprisonment given to the 2002 hit-and-run case convict actor Salman Khan was bound to raise many eyebrows. Known for snail-paced justice delivery, the judiciary was criticised for swift disposal of the actor’s bail plea. Khan, who was convicted and sentenced to five years in jail earlier last week after 13 long years of a hit-and-run case, got two bail orders in three days that keep him out of custody for now.

While admitting the actor’s appeal, Justice Abhay Thipsay said it would be proper to suspend the sentence during the pendency of the convict’s appeal as it raised “arguable points needing consideration”. Suspension of sentence is not that common in India. Even high-profile personalities such as RJD chief Lalu Prasad or more recently AIDMK supremo Jayalalitha aka Amma had to cool their heels behind bars before being granted bail in the fodder scam and the disproportionate assets cases respectively. Convicted of corruption in teachers’ recruitment scam, even 80-year-old INLD leader Om Prakash Chautala didn’t get fast-track bail during hearing of his appeal by the Delhi High Court. However, in the Salman case, the trial court found that Khan did not have a driving licence, was drunk, and was on the wheel on the fateful night, which was sufficient to conclude that he had knowledge that his act could put innocent lives at risk. The Supreme Court while converting the decision in famous 1999 BMW hit-and-run case convict Sanjeev Nanda from rash and negligent act (Section 304A IPC) to culpabale homicide not amounting to murder (Section 304 Part-II) had observed: “Once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both.” Going by Khan’s conduct of running away from the accident site and his lawyers’ delaying tactics, he should have been given harsher punishment.

Yet, High Court’s order has set off a heated public debate in the country. On the one hand, many claim that this leniency in his case is yet another example of judicial compassion towards the rich and mighty. They have cited the cases of a staggering number of under trials languishing in prisons, often on false charges, who are too poor to engage high-profile lawyers who can smoothen their passage to liberty. On the other hand, many have quoted senior lawyer Ram Jethmalani’s argument in the Amit Shah’s bail cancellation case. Ram Jethmalani argued that it is a settled law that bail is the rule and jail is the exception. They argue that “Bhai” is equally entitled to his fundamental right to liberty and presumption of innocence.

Indisputably, there is some merit in both sets of arguments. But it is important to take note of certain essential distinctions, which seem to have been drowned amid the torrent of outrage.

The first is the essential difference between pre-trial and post-conviction bail for every criminal case. A Constitution Bench of the Supreme Court categorically stated this in the decisive case of Gurbaksh Singh Sibbia Vs State of Punjab in 1980, which remains the binding precedent in these types of cases. The court observed that while every person shall be presumed innocent until held guilty by a court of law, once there is a conviction, this presumption is rendered invalid. A person has the right to appeal, but that doesn’t earn him a default right to bail while the case is pending. In the same verdict, the court has highlighted the fact that everyone is equal before law and the social status of a convict doesn’t hold ground before the law. The court observed: “The argument that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial was rejected by the Full Bench with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the concept of equality before the law.”

One could possibly argue that in a high-profile case of this nature, the “Robinhood” Khan needs to stay out of jail in order to consult his legal team and prepare his defence, which is his fundamental right. However, a similar plea by actor Sanjay Dutt, whose case was far more serious, was turned down by the Supreme Court in 2009. As things stand, Khan will be roaming free until the High Court decides his appeal, which is slated to be heard from June 15.

Acquittal of Jayalalithaa

j-jayalalithaa

In perhaps one of the longest legal battles involving a political leader ever since the case was filed, the country has witnessed five Lok Sabha elections and Tamil Nadu three Assembly polls. The Karnataka High Court’s acquittal of J Jayalalithaa of all charges of corruption recently gives out an impression as to how the high and mighty are being treated with kid gloves by the judiciary. That a case which painstakingly wound its way through the courts for 18 long years can be junked by a high court less than eight months after a conviction shows seeming dichotomy between the lower and upper courts.

Jayalalithaa was convicted and sentenced to a four-year term in jail by special judge John Michael D’Cunha on September 27 last year. She spent a few days in jail after her conviction for crimes for which Judge D’Cunha had fined her a massive Rs 100 crore and barred her from holding elective office for 10 years.

While hearing her bail plea, the Karnataka High Court declined to set aside her conviction or give her bail 10 days later, saying corruption amounted to a “violation of human rights” and should be treated seriously. However, the Supreme Court held that she could be given bail and she was out 21 days after her conviction. The Supreme Court imposed some conditions for her release. Among them: her lawyers would not adopt delaying tactics, and her appeal should be filed within two months.

Since the verdict in the J Jayalalithaa case was pronounced, there has been a raging debate over the arithmetic errors in the verdict. According to the Special Public Prosecutor in the case, B V Acharya, the calculation was crucial as it decreased by a huge margin the quantum of the disproportionate income which resulted in the acquittal of Jayalalithaa. Acharya said he didn’t expect this judgement and felt a fair opportunity was not given to the prosecution.

“I feel this is a case where prosecution has been denied adequate opportunity to present their case,” Acharya said, adding that the prosecution was denied opportunity to give oral arguments. The public prosecutor in the disproportionate assets (DA) case said that there is no ground for appeal in the case.

amma dates

After witnessing some of the latest developments unfold, how the rich and the powerful are able to avoid and evade the law is worrisome, to say the least. After Dabangg Khan managed to get bail within three hours after he was sentenced to five years in jail, and later get his sentence suspended by the Bombay High court, Jayalalithaa’s DA case verdict goes on to show how the mighty and the rich in this country can influence a case. But for this, the court cannot be held accountable as a judge’s verdict happens to be based on whatever is presented or argued in the court by the prosecution and defendant. However, as Amma’s supporters thronged the streets in celebration of the Karnataka High Court verdict, the majority of the country is left perplexed at the judgement. After reprieve for Salman followed by acquittal of Jayalalithaa voices have begun echoing their sentiments on social media attacking the verdict in the country. The court was unable to see what was known to everyone. As Mohan Guruswamy, former adviser to the Ministry of Finance, rightly puts on Facebook, “Jayalalitha’s acquittal is literal proof that Justice is blind and her disproportionate assets are there for all to see. The property and farm in Secunderabad, the tea garden in the Nilgiris, the jewellery and the properties in TN and elsewhere are there for all to see. They are common knowledge. But the Karnataka High Court cannot see that. Read this (with) how Salman Khan was given bail and one can only wonder if the rich and powerful can ever be punished in this country?”

By Nilabh Krishna

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