Friday, December 11, 2015

If you wish to jay-drive or get frisky in elevators - make sure you are rich, famous and a celebrity

Salman Khan's acquittal demonstrates the well-heeled have access to fairer trials

First published in +ABP NEWS (Click here to read)

Salman's lawyer Amit Desai after his acquittal (via ANI

Two news items dominated the lunchtime airwaves and social media today: Salman Khan's acquittal by Bombay HC and the conviction of 5 accused of the Park Street Rape Case by a Kolkata Sessions Court. First of all, let me make it clear I hold no grudge against Salman Khan (except that he gets the best girls) nor do I hold any brief for the Calcutta scoundrels. And, I have no pretensions of being a made-for-media "2 minute instant" legal expert to comment on the merits of the cases. But, questions do arise in one's mind about the legal system in our country that swears by the rule of law and justice for all.

It was said in the case of Rajat Gupta and Rajaratnam - one fundamental mistake they made was to think the US was India where the rich and famous eventually manage to slip out of a legal noose. Think of Ramalinga Raju or a business tycoon who has a reputation as much for his habitual philandering  as for being a wilful defaulter of bank loans. Sanjiv Nanda of Delhi BMW fame got away with a truncated sentence and 2 years of community service. Another high profile guest of Tihar is reported to lead a cushy lifestyle inside the jail when he is not out on parole just like the famous "Khalnayak" from Bollywood who is given a month's recess to go home for daughter's tonsil surgery. The list can go on endlessly.  But, how many real cases of conviction of the high and mighty do we know of in India over the last 60 years ?

The story is not much different in cases of sexual offence or rape. While it is a welcome and reassuring development that alleged culprits of Nirbhaya and Mumbai Shakti Mills rape cases were so quickly brought to book - we still have a celebrity journalist rake merrily doing the rounds of Delhi's Page 3 circuit hopping in and out of elevators and a climate scientist  freely travelling  around the world presumably for a change of weather.
For every such case that we know of - there are probably 100s that are languishing in jail just because they didn't have or couldn't afford competent lawyers. Many are not able to move an appeal to a higher court and some can't get basic legal help to defend them even at the first stage. Had it not been for books and movies based on real stories - as in the Arushi case - the public would not know how the prosecution can swing a criminal case either way at their will.

Talk to senior lawyers and they will tell you about the breakdown of the criminal justice system at the lower courts - which, therefore, make it necessary for trials to come up before the higher courts for review. Granted that may be so, but it would take years to fix the structural flaws. Till then we can't continue with a situation where hundreds of innocent people get convicted and many guilty ones - who have fortune, fame and resources - escape scot free - after delaying trials for years.

While one can't agree with Mallikarjun Kharge that there are separate sets of laws for different classes of people - it can't be denied varying standards are applied for people depending on their standing in society and the "face-value" of their lawyers. So we have star counsels getting cases admitted in the top court over a phone-call (apocryphal, may be) - while others languish in custody for months till their appeals are even listed. No wonder - the top-notch legal-eagles charge mind-blowing  that makes even judges wince with envy.

In contrast, the state is hardly able to get any lawyers of consequence to appear for them - barring, perhaps, the top law officers (AG, SG and state Advocate Generals) - who take up the assignment as a matter of status rather than fees. Only the dregs of the profession are willing to work for the pittance that government pays in comparison to those who have independent practice and naturally end up compromising on their ethics and integrity. Thus, it's no surprise that the Government prosecutors are not able to stand up to private counsels.

Therefore, what can - perhaps - be done in the short term is to find a system by which those who can't afford to pay have high quality legal support made available to them free or at a nominal cost. Here - I know rules exist for state support  for the needy - but the operative word "quality". This can be done by making it mandatory for senior counsels to take a up a certain number of pro-bono cases or put a cap on their fees for criminal suits (difficult to implement) while they are free to charge the moon for commercial matters. This is a matter that politicians should seriously ponder over. Hopefully, the Salman Khan verdict will trigger such a debate in the country.

The only saving grace - or poetic justice - is - those who manage to give the prosecution the slip - lose an arm and a leg in lawyers' fees.