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Sunday, June 7, 2015
Modified and posting the original!Whither Justice? Vol - L No. 23, June 06, 2015 | Anand Teltumbde Margin Speak
Justice is a far cry today. The judicial process has been hijacked by the wealthy and the powerful. Witness the course of Salman Khan's "hit and run case," or the net result of J Jayalalithaa's "disproportionate assets case," or, in sharp contrast, the situation of a wheelchair-bound professor who took up the cudgels on behalf of the oppressed, confi ned to an anda cell in Nagpur Jail, unable to get bail.
Anand Teltumbde (firstname.lastname@example.org) is a writer and activist with the Committee for the Protection of Democratic Rights, Maharashtra.
This court has become a safe haven for big criminals.
— The Supreme Court bench of Justice B S Chauhan and Justice S A Bobde1
The Preamble of the Constitution of India, containing among other things "justice, social, economic and political"—surely the most important assurance to common people—paradoxically, is getting distanced at an accelerated pace as we traverse the "developmental" avenue. This first page of the Constitution has become a bitter satire on the Indian people, and Part IV of it, "the directive principles of state policy," that further emphasise how the rulers should rule this country, a dead document except for its provision for "the holy cow." The majority, the poor, constitutionally the owners of this country, crave for justice while the rich commit crime and roam scot-free as VVIPs. The entire judicial process stands hijacked by the moneybags as admitted by the highest court of the land:
We are sorry to say that the court's time is being used by senior advocates and big criminals....We can say on oath that only 5% of the time is being used for common citizens, whose appeals are waiting for 20 or 30 years.2
Unfortunately, the hijacking is not confined to time alone; it goes far deeper into judicial prejudice against the poor and the oppressed that need justice the most. While this leg (the judiciary) of the state may be said to have performed better than the other two, the legislature and the executive, or rather appears so because the people helplessly rely upon it, justice surely has been the casualty. This can be glaringly seen in the cases of Dalits, Adivasis and religious minorities, resulting in a denial of justice, and in the cases of politicians, big ticket criminals, corporate fraudsters, leading to, from their point of view, fair play.
Two judgments, not unusual as such, but which came in quick succession last month, namely, Salman Khan's "hit and run case" illustrating the plutocratic influence on justice and J Jayalalithaa's "disproportionate assets case" insinuating the influence of politics on justice, delivered by two high courts in different states, surely strengthen this dictum.
Salman versus Saibaba
"Bail is the rule, not an exception" is the guideline by the Supreme Court in granting bail to undertrials. But how this precept gets differentially applied by courts is widely known. The big-ticket lawbreakers engage high-profile advocates who manage to get them bail even before they are arrested or immediately thereafter, and then stretch the period as long as possible, as in the case of Salman. By the time a verdict is delivered, many of the witnesses would be dead or made to die, and whatever incriminating evidence existed is diluted or destroyed beyond retrieval. The least said about the investigating agency, the police, in this context, the better. Salman, the Dabang of Bollywood, while in a drunken state, drove his Toyota Land Cruiser without licence into a group of people who were sleeping on the pavement in the wee hours of 28 September 2002. One person was killed and four others were seriously injured. He fled the scene and was later arrested from a lawyer's house. Though booked for "culpable homicide not amounting to murder," he got bail and lived as a celebrity for the next 13 years. When eventually he was convicted and awarded five years of imprisonment, within hours the Bombay High Court, where ordinary mortals have to wait for years to see their case on board, heard the plea of his lawyers and granted him bail with supersonic speed. It is not the bail per se but the manner in which it was granted reveals the attitude of the judiciary towards the rich, and conversely, disdain for the poor.
Contrast this with the case of G N Saibaba, a wheelchair-bound professor in a college of Delhi University with 90% physical disability, who until a few years ago only crawled on his hands and perhaps cannot even survive without assistance, is being denied bail repeatedly despite public concern for his failing health. Years of physical strain have taken a severe toll on his heart and lungs and continue to damage his spinal system. In addition, the irregular and inappropriate medication in jail, for which his lawyers had to continually struggle, has reportedly damaged both his kidneys. Saibaba never made any secret of his political views, and as the police claims, may have even had contacts with Maoists, but by no stretch of imagination could he commit any crime.
The Constitution guarantees freedom of faith and speech and the Supreme Court explicitly averred that mere acquaintance with persons of a banned organisation or just sympathy to the latter's cause was no crime. It was no crime even to be a member of a banned organisation unless the person participated in the unlawful activities of the organisation. The police have not provided even a shred of evidence that Saibaba was involved in any unlawful activity of the Maoists. What does it mean when such a person gets arrested under the draconian Unlawful Activities (Prevention) Act (UAPA) and gets incarcerated in a solitary anda cell of the notorious Nagpur Jail? What does it mean when the judiciary, which routinely grants bail to Salman and his ilk, but persistently denies it to Saibaba who takes up the cudgels on behalf of the oppressed? Does the court think that the latter can flee and escape trial if he is granted bail?
On 11 May, the Karnataka High Court turned down the conviction of J Jayalalithaa by the special court in the infamous "disproportionate assets case" filed by Subramanian Swamy in June 1996. The trial went on for 18 years and was transferred from Chennai to Bengaluru. The special court pronounced the judgment on 27 September 2014, which convicted her and three of her accomplices, namely, Sasikala Natrajan, Ilavarasi and V N Sudhakaran, sentencing them to four years of simple imprisonment. It also imposed a fine of Rs 100 crore on Jayalalithaa and Rs 10 crore each on the others. This was Jayalalithaa's third conviction and the second instance of being forced to step down as chief minister. All the four convicts were arrested and lodged in the Parappana Agrahara Central Jail. Their bail application was rejected by the Karnataka High Court but was subsequently accepted by the Supreme Court granting them bail. The Karnataka High Court while deciding on their appeal acquitted all of them of all the charges. Now Jayalalithaa can formally take over the chief ministership of the state.
The acquittal was reportedly based on a miscalculation of assets and liabilities by the judge. If one just reads out the list of the assets involved (farmhouses and bungalows in Chennai, agricultural land in Tamil Nadu, a farmhouse in Hyderabad, a tea estate in the Nilgiris, valuable jewellery, industrial sheds, cash deposits, investments in banks, a set of luxury cars, 800 kg of silver, 28 kg of gold, 750 pairs of shoes, 10,500 sarees, 91 watches, and other valuables kept in a vault of the Reserve Bank of India in Chennai) one can straightaway say it was a case of corruption. But it took 18 years for the court to say so and just a year for the higher court to reverse it.
The logic of the judgment is linked to the political need of the Bharatiya Janata Party (BJP). Jayalalithaa, with 37 members of Parliament in the Lok Sabha and 11 in the Rajya Sabha, is an invaluable ally for the BJP, for which she needed to be exonerated of the corruption charges first. When done, it was none other than Narendra Modi who made one of the first congratulatory calls to her. The BJP is desperate to overcome its weakness in the Rajya Sabha, as seen in its attempts at wooing Mulayam Singh Yadav in Uttar Pradesh and befriending Mamata Banerjee in West Bengal. In the given circumstances, the judge could make some hodgepodge of a calculation to de-stigmatise her, assuming that it would not be challenged. Subramanian Swamy made it clear that he would not do it. Even if the Congress government in the state does it, the case would take a long time to conclude.
Indian democracy, we are tutored, stands on three equal and independent legs—the legislature, the executive, and the judiciary—which represent the constitutional mechanism of checks and balances. This theoretical dictum of independence has been problematic in theory itself because the government that is formed by the majority legislative party represents a merger of the legislature and the executive; it assumes the executive power and directly controls the bureaucracy while continuing to exercise its legislative functions. Over the years, in the political paradigm created by the first-past-the-post type of electoral system, and a blurring of substantive distinctions among parties, the bureaucracy learns to carry the writ of the legislature (politicians). Stray episodes of the Ashok Khemka type merely illustrate the dynamics. Whatever independence existed was in the judiciary, which was the ultimate custodian of the Constitution and the guarantor of the rule of law. It could strike down executive or legislative action as ultra vires of the Constitution. Notwithstanding the delays and occasional controversies, the Indian people, by and large, relied on the judicial system for justice.
The present Parliament has created the National Judicial Appointments Commission (NJAC) by the Constitution (Ninety-Ninth Amendment) Act, 2014 which came into force on 13 April 2015. The NJAC replaced the previous collegium system for appointment and transfer of judges. While in theory, the NJAC appeared quite all right, it has actually created an avenue for political meddling and potentially marred the independence of judiciary. The NJAC has yet to make its appearance, but its influence is being smelt through the judgments that appear to benefit the political party at the helm.