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.