Thursday, November 3, 2011

Denying bail to 2G accused… India a banana republic or what?

It looks like the special court has already decided that the accused in the 2G scam are guilty. Where is the need for trial then? The chargesheet is good enough to convict all of them. Why even go through the formality of a trial? Why not just pronounce the punishment? It’s truly ridiculous – denying bail to the “mere accused” is akin to a dictator imposing his whims on the people. Or to the system of justice in a banana republic.

I haven’t heard one single legal expert agreeing with the decision of the trial court. Why, even ex-CJI VN Khare has indicated that in cases of economic offences, courts usually give bail. Sure, there is no rule which says that bail has to be given in every case – but the reasons sited by the judge make the entire denial look like a joke. I can understand that Kani doesn’t deserve bail on grounds of being a woman etc (she’s affluent; powerful….I got it), but the basic question to ask is: Has she been proven guilty? Has she had the chance to defend herself? Not once have I seen the entire legal fraternity speak out against the ridiculousness of a court order. Even the main opposition party – BJP – chose to refrain from commenting on the matter. Usually, they would be vocal about it. Is it because their MP Ram Jethmalani is representing Sanjay Chandra of Unitech?

Denying bail merely because the accusations are of a “grave” nature cannot be reasons for denying bail. Likewise, merely being worried that the accused will influence the witnesses cannot be a reason for denying bail. There have to be other ways to protect witnesses….

The judge appears to be playing to the galleries. I am sure he reads the newspapers every day and watches the news channels every night. Out there, in the world of news anchors who see themselves as part-judges, the accused have already been proven guilty. Why the anchors take such a position is not difficult to understand – with weekly pressures on TRPs, the more sensationalist you are, the better ratings you get. Who wants to go against public opinion? Clearly, the public opinion is to call these people guilty. Media has irresponsibly built a perception of guilt; and the people have lapped it up and fanned the sentiment against the accused even more. Now it’s a vicious cycle. No one has the guts to say that maybe they are not guilty. In the same way 90 Muslims (unfortunately, that’s the only way to identify them) – arrested after the Godhra riots nine years back – were recently acquitted. Who should they blame for having had to spend nine years in jail? But then who cares? The judiciary which was once taken as the watchdog of the Constitution had become the perpetrator of a dictatorial regime in their case.

Many legal luminaries argued that the courts have started treating the denying of bail as a way to punish the accused who they think is guilty. They know how long trials take in India. But then, who is responsible for the delays, if not they themselves? No one stops them from increasing the number of judges in the system. Their budgets don’t need the approval of the Finance Minister – that much being provided in the Constitution itself. It’s plain inefficiency in the judiciary. The logic that since trials take many years, we cannot have the accused walk around “free” is rubbish. The way to handle the problem is to admit the mistake, add more judges, and reduce the trial period. The first department that needs to provide citizens with a committed period of delivery is the judiciary.

No where in the cultured and developed world does this happen. Rajat Gupta who was recently charged with multiple counts of conspiracy could technically go to jail for 105 years or so. But he was given bail the very first day. Julian Assange was likewise given bail – and was allowed to live at his friend’s estate outside London. In our country, even a sick Amar Singh – someone who has undergone a kidney transplant – was initially denied bail. Fortunately for him, he’s now been given one and allowed to go to Singapore for treatment. No one is saying that Amar Singh is acquitted…..but he’s not been proven guilty either. What if Amar Singh had died in the jail – what would the SC have said then? That it’s ok – we had already decided he was guilty?

On the one hand, we have a system of parole where even a convicted criminal (who is serving a sentence) can be released for a specified period of time – of course with conditions imposed. And on the other hand, we have a system now where judges deny bails to those who are not even convicted. What a shocking travesty of justice.

Look also at the quality of justice in India. I read yesterday that in the UK, the Supreme Court usually agrees with the decisions taken by the High Courts. That would indicate a certain consistency in the judicial process. Out here, the SC routinely overturns orders passed by the High Courts. What does this indicate? That the SC routinely finds faults with the orders passed by the High Courts? Does the SC admonish judges who have passed those faulty orders? Do judges go through a performance appraisal process, where they are reviewed for quality of judgments? Are there any checks and balances at all within the judiciary? What started off as an noble institution sometimes gives an impression of having become an irresponsible authority answerable to no one. The judiciary itself is so random; one wonders if it follows any rules. Take another example of inconsistency. Yeddy is given bail (in one case) the same day that the 2G accused are denied the same. Likewise, the BJP MPs accused in the cash-for-votes scam are denied bail. The three cases are different – investigations have been completed and chargesheets filed in the 2G and the cash-for-votes cases; probably not so in the Yeddy case. Then why was Yeddy given bail and the cash-for-votes MPs and 2G scam accused denied bail? I’ll tell you why. Because each court has its own rules. There is no consistency. That is why it is important to choose which court you file a case in……This is not justice; this is like a banana republic….

There is serious need for judicial reforms. The judiciary has to be answerable to someone. If not to the executive, then there has to be a stronger system of checks and balances within itself. The judiciary cannot pander to public opinion. It cannot be vindictive. Like someone said on TV last night “It cannot pass messages through its orders”. What right does it have to pass messages? Who does the judiciary think it is? Some dictator who gives messages to his people? Like Saddam Hussein or Gaddafi, whose every action was laden with meaning? Or mere adjudicators of justice, who look at the facts and pass judgement accordingly?

I wonder if the Supreme Court can suo-moto take the matter up to itself and correct the wrong that has been done by the trial court. I think the SC does have powers to do so. But will it do so? Or is it also complicit in the crime of pandering to public opinion? We’ll get to see very soon.

Maybe we can use the same system of “ankle monitors” (GPS tracking devices) that the western world uses. That’s how Julian Assange was kept a check on. That’s how Dominique Strauss Kahn was kept a check on. These are off-the-shelf technology products and if citizen’s liberties are important to us as a nation, we should invest in these devices. In addition to pursuing a time-bound program to reduce the period of trial. Status quo cannot continue. The judiciary has to answer for its misdeeds.

The real truth is that the accused in the 2G scam cases have been denied justice. This has to be reversed. The judges cannot listen to public opinion. They say the law is blind – but it doesn’t appear so in this case….

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