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HindustanTimes Fri,19 Sep 2014

Law, justice and Sanjay Dutt

BR Bajaj, Hindustan Times   March 31, 2013
First Published: 10:54 IST(31/3/2013) | Last Updated: 21:54 IST(31/3/2013)

Sanjay Dutt's case has once again brought the subject of law and justice or law v/s justice into debate. While justice is the goal in all civil societies, laws are enacted as instruments to achieve this goal.

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The law-enforcing authorities (in Sanjay Dutt's case, the police and the judiciary), thus find themselves as agencies responsible for implementing the laws, with the ultimate objective of providing justice. Where and why did things go wrong that a huge debate has been triggered by the verdict of the Supreme Court? Whether Sanjay deserves the punishment handed out by the apex court in 2013, for acts done 20 years ago?

Criminal justice system all over the world, by and large, stipulates that for every crime there has to be a punishment as prescribed by law. So far so good. But what about justice? Is it just and fair for all accused to be treated as guilty till proved innocent? Is it fair to inflict on them the punishment of hundreds of court appearances over several years, before a verdict is given?

The Criminal Procedure Code was designed to prescribe a procedure to prevent arbitrariness and the abuse of the process of law. Unfortunately, the biggest hindrance in providing justice is the subversion of the procedure prescribed by delays of a magnitude, that brings the system into such disrepute, that ends of justice are not sought in final verdicts, but in interim orders. Hence, you read about lakhs of cases pending for decades.

In Sanjay's case, for example, if the final verdict from the apex court had come 20 years ago, and Sanjay having undergone 18 months in prison then, would have had a different set of circumstances to face the five-year prison term. In contrast, at the age of 54 (and this equally applies to Zaibunissa, who is 70 now), the punishment becomes many times more harsh than prescribed by law, apart from depriving him of the life rebuilt in the last 20 years.

At times, the courts go out of the way in dealing harshly with the accused who happens to be a celebrity or called a VIP and try to make an example out of them, with the fond hope that others will learn a lesson.

This in reality reflects a bias and hurts the equality principle. In a country of a billion plus, many of those who commit crimes are uneducated and unaware of what is going on, being in social and personal milieus quite different from those who read newspapers every day.

Unfortunately, these intangibles are not considered relevant by those who implement the law in letter, and not in spirit, thereby sacrificing justice at the altar of procedure. This, in fact, is true of the bureaucracy as well, where the procedure prescribed gets precedence over the objectives, and those who cut short the procedure to reach the goals often get indicted in courts.

Nani Palkhivala, the celebrated jurist, is quoted to have said that if you want to know what eternity is, then be a litigant in India. Litigation, in an abstract way, actually involves search for the truth. Unfortunately, litigation has become a bad word, and to be afflicted with this disease has the worst fate than cancer, as Sanjay Dutt has seen. For cancer patients the remission period broadly is about five years, and the patient feels safe after that. Sadly, not so with litigation in this country -- it can go on and on, from generation to generation.

Justice delayed is justice denied, we all know. Yet, the stranglehold of the procedure, and the sanctity attached to it is so great that no one dare defy it. The existing milieu in the courts, particularly in the lower judiciary, requires judicial officers to perform mechanically, and follow the procedure, lest fingers are pointed.

A large volume of pending cases will get disposed quickly, if the milieu allows initiative, application of mind and a personal commitment to serve justice and not the procedure. Will that ever happen? Alas, Sanjay will remain one of the countless victims of the system that we all condemn, but lack the will to change. Why, because the system is based on distrust, and in spite of the title of 'justice' attached to the names of judges, no one ever dare challenge the status quo and liberate justice from the tyranny of procedure.

(The writer is a retired Punjab IAS officer and can be reached at brbajaj@gmail.com. Views expressed are his personal.)

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