Wednesday, November 23, 2011

Finally, Supreme Court intervenes to deliver justice in the 2G bail matter….

The Supreme Court intervened to deliver the long-delayed justice to the 2G scam accused. By granting bail – the Supreme Court has reinforced its long-practiced preference for “bail not jail”. Not only has the SC corrected the mistakes made by the High Court and the Trial Court, it has also criticized the basis on which the bail had been denied to the accused by these courts.

There are several points that the SC has made while delivering its bail order.

Firstly, it has said that it saw little merit in keeping the accused in jail even after the investigations were over and the chargesheets had been filed. This is precisely what I had written in my post of October 23rdHappy that charges have been framed…..but now bail must be given to the 2G accused”. Once the investigations are over and the chargesheet has been filed, there is no risk of the accused tampering with the evidence.

The second point that the SC made is that since the trial is not going to be over soon – the accused cannot be kept in the jail indefinitely. The SC has clearly admonished the HC and the Trial Court for their insensitivity to the fundamental rights of the accused. It has been compelled to reemphasize that every person is innocent unless proven guilty. Why this was not understood by the lower courts is something I cannot understand.

Thirdly, the SC has rejected the CBI’s argument that the accused could tamper with the evidence. Since investigations are over, the accused cannot tamper with the evidence. But they can surely influence the witnesses. My view is that while it is true that witnesses could be influenced, that by itself cannot be the reason to deny bail. What the courts must ensure is that witnesses are protected. Protecting witnesses is the state’s job – the fear of them being influenced cannot lead to indefinite incarceration of the accused – those who may eventually be found to be not guilty at all. This is what we saw in the Godhra riots cases also when some 90 Muslims who were arrested in the immediate aftermath of the train burning incident were acquitted after spending 9 years in jail – as undertrials. Even then I had raised the question: who is going to retur n these people their 9 years? (August 12th, 2011 – The Stench from Gujarat). This is also one reason why I am not in favor of draconian laws like MCOCA – in spite of the fact that the scourge of terrorism is increasing. I don’t trust the cops in doing a thorough investigation before nabbing the right guys. Under pressure, cops are known to arrest the first guys available. If innocent people are so arrested, and if bail is denied to them under MCOCA, then what kind of a country would we become? We saw the same thing in the Malegaon blasts case – where some Muslims were arrested under MCOCA and put in jail. It now appears that the terrorists may not have been the Muslims at all.

Fourthly, the SC has also argued that the accused cannot be denied bail just because the community’s sentiment is against them. I totally agree with this view. We are not a mobocracy. We are a proud democracy where the rule of law is followed. Public opinion is irrelevant in deciding the guilt of a person. In the case of Raja and Kani and all the others, the public may well have decided that they are guilty. But it’s entirely possible that upon review of evidence, the courts may find them to be innocent. Unfortunately, courts in India often look at public sentiments before pronouncing their judgments. What else could the reason be for the lower courts denying bail to these two?

And finally, the SC has rejected the argument made by the lower courts that the size of the scam was so big that it was fair to keep the accused in jail. The SC has categorically stated that the constitutional rights of the accused do not depend on the size of the charge against them. This is so obvious; I am surprised that the lower courts didn’t believe in this principle.

Likewise, it was a good thing for the Bangalore court to release Yeddy on bail – who knows if he is really guilty or not. Kalmadi also must be released. All the thousands of undertrials lodged in the jails should also be released. And Sify’s Raju should also have been released much earlier – he eventually spent more than two years before being given bail. We saw in the US how both Dominique Strauss Kahn (DSK) and Rajat Gupta were given immediate bails though the charges against them were very serious.

I do hope that the trial court and the higher courts will help separate the two intertwined issues in the 2G scam. One issue is the free spectrum that was given away. In my opinion, there is no scam there. It was a conscious government policy backed by the regulator TRAI’s recommendations. Besides, the same policy was framed and followed by the previous NDA regime. If giving spectrum bundled with the license for free was a scam, then giving diesel, kerosene and LPG subsidized is also a scam. The spectrum may have been valued anything (the so called “presumptive loss” figures that the hyper-active CAG has put out) – but that’s irrelevant. The government was not interested in making that money. Instead, they were interested in increasing the penetration of mobile phones and making it available to the lower strata of society. Had they not followed this policy – and had they charged lacs of crores as suggested by the CAG – the mobile phone penetration would never have reached 800 million. And vast sections of the poor would have remained bereft of the advantages of this tool. The second intertwined issue is the actual implementation of the policy where it appears that Raja may have played tricks. The court must focus its energies on finding out the truth about these tricks. I have also mentioned that there is no point in investigating Pramod Mahajan’s decision to increase the free spectrum from 4.4 to 6.2 Mhz (November 20th, 2011 - Another 2G chargesheet....another round of politics…..another round of misdirected investigations). It is important to investigate why he reduced the charges (as % of Adjusted Gross Revenues) of additional spectrum beyond 6.2 Mhz.

The Supreme Court must also question the lower courts for their wrong verdicts. It cannot simply treat these errors as a case of different courts having different interpretations. The SC had in its verdicts of 1978 clearly specified its preference for bail, not jail.

It’s now time to give bail to all the others accused including Raja – who I read in the papers has never even applied for bail. The rule of law should apply to everyone – whether one seeks it or not. There are no grounds left anymore for bail to be denied to them.

I also wish the judiciary would take upon itself the task of speeding up the trial process in this case and in all other cases as well. The country is keen to know the final verdict now…..not after ten or twenty years. Sukh Ram’s recent conviction – coming after so many yers as it did – carried no deterrence value for others who may want to try similar tricks. Had the judgment come many years back when the matter was still hot, it would have had that impact. Likewise, if Raja is guilty, let him be given exemplary punishment – quickly – so that no one else thinks he can get away lightly.

The real truth is that the SC has done the right thing by releasing the accused on bail. It should now make sure the lower courts follow the same principle with respect to the other accused ……

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