Don't subvert the legal system

IN Media Practice | 01/04/2013

When you read that Bollywood celebrities have extended moral support to Sanjay Dutt in his hour of despair, you understand their camaraderie, dismiss it, if you are cynical, as another celebrity endorsement and move on to the next headline.

When Markandey Katju appeals to the Governor of Maharashtra to exercise a power which he does not possess, you wonder: If Katju had to write to someone who does not have the power to pardon, why did he choose the Governor? Why not to the jail superintendent of Arthur Road or Pune prison that when Sanjay Dutt surrenders in the next four weeks as per the Supreme Court order, he should not lock him up?

When you learn the absurd reasons Katju advances for seeking pardon for Dutt, you realise that perhaps when he was busy mastering mathematics so that he could rap the Allahabad lecturer, he had forgotten law.

In other words, you tend to dismiss the clamour of the aforesaid persons to secure clemency for Sanjay Dutt as biased or inconsequential.

But when news channels use this chorus for mercy to Dutt to seek similar benefit for another convict in the Mumbai blast case or an eminent lawyer cherrypicks a paragraph in the Supreme Court judgement convicting Sanjay Dutt and advances a myopic legal argument for his release you realise that a dangerous precedent is being created furtively to disregard the judgement of the highest court of the country.

First the news channels. Times Now and Headlines Today highlighted the miseries of Zaibunnisa Kazi, a 70-year-old lady who has been convicted by the Supreme Court in the Mumbai blast case. Her crime, according to the channels, was comparable to or perhaps less than that of Sanjay Dutt’s – she had just kept a bag without knowing that it contained arms and ammunition whereas Sanjay Dutt had seen the weapons, kept them in his car and in fact bought some of them. While Kazi’s daughter swears that her mother did not know the contents of the bag nor did she open, confessional statement of Mansoor Ahmed (page 41) makes it clear that Abu Salem and he informed her about the contents, that they were meant for causing riots and that she opened the bag and inspected the contents. The channels threw down the obvious gauntlet to the high and mighty: Will you take up only a celebrity’s case? Will you not take up Ms Kazi’s case? While Katju made a general offer that he would open a counter for those seeking pardon from the Governor, Digvijay Singh made a specific offer – that he would take up the case of Ms Kazi.

This whole episode raises a few disturbing questions:

• How did the channels decide that Ms. Kazi’s crime was comparable to Sanjay Dutt’s?
• While on the one hand they were condemning those seeking mercy for Sanjay Dutt, how could they campaign for clemency to Ms Kazi? Rahul Kanwal, for example, did not have any qualms when Digvijay Singh asked for Ms Kazi’s daughter’s contact details so that he could take up her case.
•  If after going though the evidence, statements of witnesses, arguments of prosecution and defence laboriously for 20 years, the designated court under TADA and the Supreme Court convict a few persons, is it not a mockery of the justice system if a retired judge who owes his present job to the government and the ruling party and an out-of-job-in-native-state politician who, without even reading the full judgement, rush to offer their good offices to lobby for clemency to the convicts?

Next, the attempt by ex-law minister Shanti Bhushan to dismiss the Supreme Court judgement convicting Sanjay Dutt as a ‘travesty of justice’. Writing in The Hindu, Shanti Bhushan points out that para 70 of the judgement agrees with the designated court that Sanjay Dutt acquired the weapons for self-defence; Section 96 of IPC provides that an act of self-defence will not result in any offence; so there is no need for clemency; Sanjay Dutt in fact should be acquitted!

First, it is a convenient reading of a select paragraph to the exclusion of the whole range of arguments preceding and succeeding the same that makes Bhushan advance the perverted, technical view. Supreme Court analyses Sanjay Dutt’s confession in paras 18 to 20, corroborates it with the statements of other co-accused in paras 21 to 29 and concludes that he already possessed three firearms, he wanted to buy and in fact bought automatic firearms, that he had made friends with Dawood and Anees Ibrahim and that he took steps to destroy the weapons after the blast. It dismisses the subsequent retraction by Sanjay Dutt in paras 38 to 42 as the same was done more than a year later and not at the first available opportunity. Thereafter while deciding whether he is punishable under section 5 of TADA, it concurs with the designated court that the arms were not acquired for terrorist activities because the prosecution could not prove that the arms in the possession of Sanjay Dutt were part of the consignment which were used in the Mumbai blasts. (para 73). Thereafter it goes on to explain the social work done by the Dutt family in Behrampada, a predominantly Muslim locality, the threats received by the family and agrees to the self-defence argument. The initial force of arguments pinning Sanjay Dutt to the crime and the final agreement to self-defence theory indicates a subtle reluctance on the part of the court.

Secondly, being an eminent lawyer, Shanti Bhushan would know that the right to private defence under section 96 of IPC is not an unbridled, absolute right; it comes with riders.

It was held in Madan Mohan Pandey vs State of UP that while deciding whether a person exceeded his right to private defence, courts will take into account the weapons used. It is common knowledge that AK56, 250 rounds and hand grenades were far in excess of the weapons needed for self-defence. Shanti Bhushan’s argument that it is difficult to get licence for AK56 and that is why Dutt acquired it through alternative channels is laughable.

Further Section 99 imposes further restrictions on the right to private defence. When there is sufficient time to get protection from public authorities, one does not have a right to private defence. After the threats, Sunil Dutt in fact asked for police protection on January 6, 1993. This being so, where was the need for Sanjay Dutt to acquire disproportionately powerful arms in a clandestine manner?

Quite oblivious to the holes in his argument, Shanti Bhushan proceeds to ridicule the Supreme Court judges that they ‘hesitate to accept’ mistakes!

While emotional support of Bollywood celebrities and the hilarious appeal by Katju can be ignored, attempt by news channels to subvert the legal system by institutionalising the system of clemency and that by Shanti Bhushan to twist the judgement can not be and should not be ignored.