The privilege of justice

Amba Salelkar“Why can’t justice be more like this?” everyone asked, astonished at Salman Khan’s quick transformation from convict to free man (not really, he still has two days to get admitted to a hospital, or face surrender before the court). Was this a ‘Cash ready Procedure Code’ at work, in operation for the 1%?

Truth is stranger than conjecture.

According to the order granting interim bail, the main contention raised was that the copy of the order of the trial court was not provided to Khan. The Code of Criminal Procedure provides that a copy of the judgment is to be given to an accused, immediately and free of charge, if the accused is sentenced to imprisonment. This is an indisputable right of an accused, and that, as Sanjay Dutt can testify, failure to provide this copy creates a ground for bail.

The fulfilment of this right is facilitated by seemingly ‘piecemeal’ procedure. After pronouncing a finding of guilt, there are arguments on sentencing. Sufficient time is to be given to the defence for this — courts have noted that a finding of guilt comes as a surprise to an accused, who now has to formulate reasons for lenient sentencing. The delay between these affords time for the judgment to be transcribed, approved, and signed, with just the smaller part of sentencing and reasoning to be appended when delivered. This bizarre process includes proofreading by three separate officials before the judge signs it.

Rest assured, the copy will eventually come to the accused in a day, or a few. A trial court cannot release an accused on bail after the sentencing, so any grouse can only be raised before the appellate court, in this case, the Bombay High Court.

Once the error is rectified, there is no ground for bail. Bail isn’t to reprimand officials for not doing their work on time. Section 167(2)(a)(ii) of the CrPC, provides for bail in case a ‘chargesheet’ is not filed on time by the police. There is no authority running a stopwatch for each case. If the chargesheet isn’t filed on day 90 of a murder case, no jailor comes running to release the undertrial at the stroke of midnight. The undertrial needs to hire a lawyer, file a bail application, and make his case out. More often than not, the prosecution turns up for hearing with a copy ready, rendering the application infructuous. Such is the nature of ‘safeguards’.

Khan’s order will be ready on May 8. In any other case, urgency would get a matter listed for the first time on May 8, and that’s being optimistic. His legal team had the resources to ensure that the appeal and accompanying bail application were filed probably minutes after the sentence was pronounced, relying on hasty notes taken on the judgment dictated in the open court, or perhaps with boilerplate grounds, which Khan would “crave leave to add to, rescind from, or alter” in his petition. At work are a team of dedicated lawyers, efficient filing clerks, and perhaps India’s best-known senior counsel — who walked into a court at
2 pm and asked for the production of the case papers in the post-lunch session for consideration.

And once the state conceded that the copy was not given, it was over — dictation of the order would have taken longer than the arguments. It was an irresistible cocktail of procedural violations, professionalism and persona that could not be ignored.

All persons are equal before the law — procedure, on the other hand, is different. An accused, represented by a legal aid lawyer, sentenced to imprisonment, would be lucky to have the lawyer sitting around for the pronouncement of the judgment, let alone drafting an appeal on her smartphone. The appellate court might be 500 km away and not just down the road, as it is in Mumbai. Families would be scrounging to raise the thousands required to file the appeal, and this is the cost of a competent clerk alone. And even if everything was in place, within one’s means — the lawyer, who would be busy before another court — would send his junior to attempt to mention the matter as the eager judge rose for lunch, only to hear: “Counsel, where is the urgency?”

“All animals are equal, but some animals are more equal than others.”

Amba Salelkar is a Chennai-based lawyer specialising in gender and disability

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