Deny her bail

Rich and powerful convicts should be denied bail so as to stop the continuing mockery of our criminal justice systems

Former Chief Minister J Jayalalithaa is likely to approach the Karnataka High Court for bail tomorrow, or so the media quotes her lawyers as saying. It is imperative that the Court rejects this bail application. In fact this should be done, not just in this case, but in all cases where the convicts are powerful or rich. I believe that the present system of bail post-conviction needs to be seriously looked into and if necessary laws should be amended.

Let us examine a law in some detail, before we proceed. Post-conviction and pending disposal of an appeal to a higher court, a court can grant bail in two scenarios. The first is where it suspends the execution of the sentence and grants bail till the appeal is decided. The second is when it suspends the conviction itself, not just its execution.

In practical terms what this differentiation means – to take JJ’s case – is as follows. In the first case the court can grant bail and stop the sentence – four years imprisonment and Rs. 100 crore as fine – from being executed, but the conviction still stands and the lady continues to be disqualified from holding elected office, pending the appellate process. The second is where the conviction itself is stayed in which case, of course, even the disqualification is stayed.

While her lawyers are likely to try for the best possible scenario for her; i.e suspension of the conviction itself – this tends to happen in very very rare circumstances. Realistically her best chance is to get the execution of the sentence stayed, so that she can remain out of jail, pending the disposal of various appeals.

Laloo Prasad Yadav is out on bail on similar grounds, with the execution of the sentence having been stayed pending the appeals process. Sanjay Dutt enjoyed freedom long after he was convicted again on the same grounds till the final appeals were disposed off.

And it is exactly this process that needs to change, especially if the convict is a powerful or rich person. Why?

Before we go there, let’s consider the bail provisions for under-trails; what do the legal principles as well as case law say? Generally speaking, in courts around the world, bail is most cases is considered as a matter of the right for the accused. The two broad principles that stand in the way of granting of bail is if the court is convinced that the accused could a) either try and tamper with evidence/witnesses while out on bail and/or b) The court is not convinced about the presence of the accused during trial, if bail is granted.

In a celebrated judgment, called the “Bail or Jail” verdict, Justice Krishna Iyer of the Supreme Court had held that the principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. After holding that it makes sense to assume that a man on bail has a better chance to prepare and present his case than one remanded in custody the learned Judge observed that if public justice is to be promoted mechanical detention should be demoted.

There cannot be any argument against this principle. But look at how it pans out in reality. On September 5, this year, the Supreme Court ordered that release of all those people in Indian prisons who are pending trial and have spent half of their prescribed maximum sentence in jail during this period of pendency. It directed district courts to release such under-trial prisoners with or without a personal bond. It is estimated that the order will benefit over a quarter of million under-trials.

Even this order, welcome as it is, can only be a drop in the ocean if Amnesty International (AI), the global human rights group is to be believed. According to AI, over two-thirds of all Indian prison inmates are pending trial; over 30% of them are illiterate. One key reason for this large number of under-trials is that according to latest estimates (end of 2012) there are an estimated 30 million trials pending across India.

Who exactly are these under-trials who have spent long time in prisons without bail? If you take AI’s figures, it doesn’t require too much of a leap of faith to infer that an overwhelming majority of them are people who are poor, who cannot post bail or give personal bonds. The affluent, the powerful, the famous on the other hand can get bail, continue with their normal lives while their lawyers manipulate India’s creaking judicial system to defer trials and extend their clients’ freedom.

There are countless examples of this – here is one that has been attracting a lot of attention recently. Bollywood Superstar Salman Khan was accused in a “Hit and Run” case that was responsible for one death and injuries for four other people in 2002. It has been 12 years; the case still drags on. Incidentally, Salman Khan was accused of killing blackbucks in Rajasthan in 1998. He was convicted by lower courts but managed to get the conviction stayed (refer to the paragraphs above for the distinction between staying of execution of sentence and staying of conviction). The matter is now before the Supreme Court and will be heard next month.

Another Bollywood superstar, Sanjay Dutt was one of the accused in Mumbai Blasts trial that killed over 250 people. Barring the time he spent in prison under TADA, where no bail was allowed, he was out for most of the trial, even as several others who were too poor to post bail or personal bonds languished in prison. Don’t forget the blasts occurred in 1993 and the TADA Court delivered its verdict in 2006 – after 13 years. It took another seven years, before the Supreme Court in 2013, disposed off all appeals and Dutt was ordered to serve out his sentence.

Clearly, the criminal justice system in India, as it stands today is in practice biased against the poor, who cannot post bail or personal bonds and have to languish in jails while people like Salman Khan and Sanjay Dutt enjoy their freedoms. This flies in the face of the spirit behind the constitutional provision of equality before law.

But there is at least a fig leaf of a justification. A poor person, who is accused in a crime and is unable to post bail or personal bond, may not be able to convince the judge that his/her presence can be guaranteed during the trial. Under the circumstances the judge has little option but to send him/her to jail. Someone who is rich or powerful or famous, will definitely find it much easier to convince the judge that he/she will be around when the trial comes up for hearing.

So a Salman Khan continues to enjoy his freedom, make movies and make a load of money while being out on bail in the “Hit and Run” case while a poor taxi or truck driver who may been accused of a similar crime in the same year (may be even the same day, somewhere else in the country) probably spent a long time in the prison while his trial came up for hearing.

But what about those who are convicted by the lower courts? Why should the rich and mighty get bails, post-conviction? They have been tried under the due process of law and have been found guilty. It is hard enough to get convictions against such powerful people in the first place – JJ’s case for example took 18 years before the verdict was delivered.

Why then should they continue to enjoy the privileges of freedom after their conviction? Especially when, most other convicts, who are less powerful, less wealthy, would not get the same liberty!

Consider the consequences. Salman is accused of killing the blackbucks in 1998, is convicted in 2006 and then manages to get a stay on conviction. In the interim (after his conviction) he has made 17 more movies, most of them – given his fan following – top grosser. Sanjay Dutt between his conviction by TADA Court in 2006 and disposal of appeals by the Supreme Court, made 23 films including – incredible once you consider he was convicted in a TADA case – playing a Mahatma Gandhi inspired character in two super-hit movies.

Laloo Prasad Yadav is convicted in the fodder scam, gets bail and is back to sharing the stage and finalizing alliances with the incumbent Chief Minister of Bihar – Nitish Kumar.

Jayalalithaa if she gets bail – will be back in a few weeks as the most powerful political force in Tamil Nadu and running a puppet government.

What exactly is the message that all these instances send out? That if you are rich and powerful, conviction by the courts is just a joke. You can get bail, enjoy your freedoms, make money, even decide the fates of millions as a political leader and no one can touch you. How exactly would common people view the judicial process after this? Would they have any respect for the judicial system at all?

And then there is the point about natural justice and about the constitutional right of equality before the law. When rich convicts get bail while poor convicts continue to languish in prisons what does it say about equality before law?

In fact, I would venture so far to say that the courts should actually treat those who are powerful, rich, famous more strictly than the common man. After all, these people have had all the breaks; society has given them a privileged status and it is beholden upon them to repay society back by holding the highest standards of ethics in their own conduct. They are the role models. Even if it is technically a crime, a society can understand and – daresay even forgive – a poor starving man if he steals some bread. But there is absolutely no justification for a political leader – a MLA, MP, Minister or Chief Minister – to engage in corruption. If they are convicted be no bail granted and made to serve their prison terms. They can appeal their convictions, that their constitutional right, but pending the disposal of the appeals, they should be made to suffer the consequences of their acts as a poor convict would.

The Supreme Court, under the stewardship of Chief Justice R M Lodha, passed several landmark judgments. Some of the methods were perhaps unconventional perhaps – a case that comes to mind is the Sahara case – whereby keeping the Sahara Group’s Chief in jail, the SC is forcing a decision, which otherwise may have taken another decade or so of litigation. But generally CJ’s Lodha’s tenure will be remembered as one that furthered the Indian people’s faith and respect for the judiciary.

One just hopes that the new Chief Justice H L Dattu takes this forward. One of the areas to start would be stop the abuse of the bail system by rich and powerful convicts.

Caesar’s Wife

Supreme Court of India

If you look at several of SC’s judgments recently and you hardly find any criticism in the main stream media. We seem to, almost fatalistically accept the pronouncements, as if they were not from fallible human beings, but from infallible Gods and therefore no discussions and criticisms are possible.

Take the 2G case for instance. Sure Raja -- at best with the silent acquiescence, at worst with passive support of Manmohan Singh -- perpetrated a fraud on the nation. But think of Telenor. The company decides to buy into Unitech’s mobile business company after it has got a license from the Indian government. No proof has been forthcoming that Telenor was in any way involved in any wrong doing or influencing the policy. Now this company goes and invests billions of dollars only to be later told that the original license was fraudulently obtained and now stands cancelled. Eventually Telenor has to say goodbye to its investments. What exactly was its fault? That it chose to believe in the decisions of Indian government.

Similarly in the Coal Block case, the SC finds allocations going back 20 years to be illegal and cancels them.  Again, it is not my case that the allocation of the blocks was not arbitrary. But the fact is that banks have pumped in thousands of crores as funding to these mining projects as well related end-use projects like power, steel and cement. What exactly was their fault? That they believed in a decision taken by a legally constituted government? And now that these allocations are cancelled, god alone knows how the banks will recover these loans.

As far as the investors or banks go, one would venture to opine that the judgments served the cause of law but not necessarily natural justice.

Look at how this pans out among investors. Since clearly a decision of a legally constituted government is no longer enough to protect their investments; should they invest in projects based on government’s decisions or should they first refer them to the SC to get the legality examined and certified before making investment decisions?

And then why stop at decisions taken two decades ago. What happens if someone decides to challenge all the licenses and permits granted by the government going back six decades – most of them were as arbitrary as the coal block allocation. Would the SC then cancel these as well? And what kind of chaos would that cause?

The point I am making is that the SC cannot just look at these issues from a legalistic angle; there are wider ramifications that need to be considered. Ideally there should be a constant dialogue between the judiciary and the government and civil society so that the judges understand these ramifications before pronouncing their judgments.

Clearly it cannot be anybody’s case that SC should not take action when the government does something wrong just because economic issues are involved. But just taking inputs from the government is pointless; because a government is also governed by the politics of the situation. Attorney General of a BJP government is hardly going to tell the SC that it does not support the cancellation of coal blocks, especially when the scam was one of its major election planks. Surely a more nuanced approach is necessary.

For example, both the 2G case and Coal Block cases, the SC could have easily asked the RBI for its opinion on the impact on banks if licenses were cancelled. It could have even gathered inputs from reputed economic experts to see how the interests of investors like Telenor or banks could be protected while ensuring that the wrong doers – the Indian companies which got the licenses/blocks allocated in an arbitrary manner did not benefit.

In my conversations with several people – analysts as well as business leaders, the sense that I get is that they feel both these decisions are ham-handed. But you will never have any of them airing these views due to the fear of the SC’s wrath.

But let’s not forget that the same SC that cancelled these allocations because of the non-transparent manner of functioning of the government, has itself a very poor record of disclosures. For example, SC has refused to be subjected to mandatory disclosures of judges’ assets and the declarations made are "purely voluntary". This has obvious legal implications. If a candidate in an election makes false declaration about his or his dependants’ assets, he can be disqualified. But a SC judge will not attract a similar penalty. Just think about this for a minute, the level of disclosure required from a no consequence independent candidate fighting an assembly election, for example, is greater that required from an SC judge!

The coal block scam was broken by the use of RTI, since the Coal Ministry and its steering committee is governed by RTI, but the working of the higher judiciary is not covered by RTI (according to a Madras High Court Judgment) nor is the process of appointment of judges to the higher judiciary.

So the SC can strike down Coal block allocations going back two decades, because of arbitrariness and lack of transparency, but citizens of this country have no right to know why a particular person has been appointed as a judge, only the final name of the appointee. This is because we are asked to trust the institution and process.

But, while according all due respect to the institution of the Supreme Court or High Courts, it is important to make a distinction and recognize that the judges who man these courts are themselves humans and not saints. They have their likes, dislikes, biases, failings, ambitions, even peccadilloes. It is but natural that these will tend to affect their decisions, rulings and judgments.

In fact even in the most important constitutional case in the history of our Republic, the Kesavananda Bharati case these elements were on full display. T.R. Andhyarujina, former Solicitor General, who fought the case as a junior to Kerela government’s counsel, the legendary H M Seervai has recounted all this in an excellent book.

The book is fascinating in the kind of details it provides; especially how most of the judges on the bench already had taken public positions on either side of the central issue at stake – the parliament’s untrammeled power to amend the constitution.

What is even more fascinating – considering the importance it has come to enjoy in our constitutional law – was how this so-called majority view was arrived at!  With most judges already having taken public positions on either side of the issue, the 13-member bench was deeply divided and there was no consensus. Even between six of the judges including CJ Sikri who supported restrictions on parliamentary powers, there no consensus as to which articles of the constitution these restrictions would apply. Justice H R Khanna, often credited with the “Basic Structure” hypothesis, actually rejected this argument about limitations on parliamentary power. His limited point however was that power to “amend” cannot be extended to mean power to “abrogate.” 

With his retirement impending – he retired the day after the judgment was pronounced – and since there was no consensus, CJ Sikri, whose earlier judgments were in favour of restricting parliamentary powers to amend the constitution, used a “stratagem” (word used by T.R. Andhyarujina in his book), by producing a paper summarizing the majority view. It was in this paper (relying on Justice Khanna distinction between amendment and abrogation) that the proposition "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution" was formulated and has since become the law of the land.

So, even the most important judgment on a point of constitutional law was determined by the judges declared positions and what was arrived at was a hastily drawn up compromise that was rejected by four of the 13 judges – they were so incensed by this so-called summary that they refused to sign this summary of majority opinion.

This is the history of our jurisprudence. Surely then, without in any way disrespecting the institution of higher judiciary, as citizens we need to freely and openly discuss, debate and criticize its pronouncements and judgments.

We also need to also build public opinion to make it more transparent and ensure that the same standards of disclosure that we impose on the legislature and executive are also applicable to the judiciary. The SC after all is the final arbitrator of what is right or wrong; it is our last resort when it comes to safeguarding our freedoms. It has to be like the proverbial “Caesar’s Wife”, above all suspicion and speculation and this should not be based on blind faith alone, but by more transparency.