"Justice & Equity"-Ideally these two words should complement each other. Justice
shall be just only when it is delivered with equity. However, what is Ideal is
not mostly Real.What should be done is hardly equal to what actually is done.
„Justice, equity & good conscience' are the basic principles of common law.
Indian judicial system boasts to follow these principles effectively. However,
in reality, Salman Khan gets bail within hours whereas a poor man waits for
years for his trial itself. This general trend of VIP culture is followed
everywhere and courts are not an exception to this as well. While a celebrity
like Sanjay Dutt spends half of his time on parole, a poor man from Assam is
found spending 51 years in prison awaiting his trial for an offence punishable
with not more than 3 Years? This raises some big questions on the justice
delivery system: Is the law of equality granted by common law as well as our
constitution being followed in reality?
The judicial system of a country needs to be efficient in order to ensure
effective overall administration. However, when the British came to the country,
the judicial setup in India was in dire need of reform as it suffered from
defects like lack of uniform laws learned people to adjudicate disputes and
In December 2011, Justice S N Dhingra (Judge, Delhi High Court), said that the
criminal justice system in India needs overhauling. He also said that the higher
courts are preoccupied by persons with money or power. Similar statement was
made by Justice BS Chauhan & SA Bobde while dismissing the anticipatory bail of
IPS officer PP Pande in the famous Isharat Jehan fake encounter case. Here, the
judges said that "We are sorry to say the court's time is being used by senior
advocates and big criminal." The justices went on to add that only 5% of the
court's time is being used for the benefit of the common citizen. These facts
are undeniable. It is clearly evident that Indian Jails are overflowed with
numerous under-trials and also the convicts whose appeals continue to remain in
queue to be heard in the higher courts, a queue which seems to be never ending.
It is estimated that around 3 crores cases are pending in courts all over India,
with approximately 42 Lakhs in High Courts and more than 65,000 in Supreme
Court. This delays a common man's hope for a speedy justice.
It cannot be denied that the major reason for this bulk pendency is the VIP
culture in the Judiciary. While courts have continued their tirade against the
VIP culture all across the country, somehow courts are the places to be most
affected by it, without any signs of control upon it.
Right To Equality & Principles of Natural Justice
Dr. Gary Jennings, a prominent US Scholar & Academic said that: "Equality before
the law means that equality among equals the law should be equal for all. And
should be equally administered, that like should treated alike. The right to sue
and be sued, to prosecute and prosecuted for the same kind of action should be
same for all citizens of full age and understanding without distinctions of
race, religion, wealth, social status or political influence."
Two basic pillars of the Natural Justice, Nemo debet ese judex improria causa
sua 1 & Audi alteram partem2 specifically call for equity. The preamble of the
Indian Constitution emulates words like Justice Social, Economic and political
liberty of thought, belief, worship. It also preaches for equality of status and
of opportunity. This tends to uphold these basic principles of Natural Justice.
Article 14 of the Constitution grants the Right to Equality as a basic
Fundamental Right to all the Citizens. So when Constitution, being Supreme Law
of the Nation confers some rights or duties, respecting it becomes inevitable
and a prime duty of all the Organs of the State, be it Legislature, Judiciary or
Time and again, the Supreme Court through Art. 14 has established the principle
that natural justice is an integral part of administrative process. In Delhi
Transport Corporation v. DTC Mazdoor Union3, SC held that "The audi alteram
partem rule, in essence, enforce the equality clause in Art 14 and it is
applicable not only to quasi-judicial bodies but also to administrative order
adversely affecting the party in question unless the rule has been excluded by
the Act in question." Similarly in Maneka Gandhi v. Union of India4 SC said that
Art. 14 is an authority which states that the principles of natural justice are
an integral part of the
No one should be made a judge in his own case, or the rule against bias
Hear the other party, or the rule of fair hearing, or the rule that no one
should be condemned unheard
Right to equality guaranteed by Art. 14 & any action depriving a person of his
civil rights without providing him an opportunity of being heard accounts for
the violation of natural justice.
Apart from Article 14, there are various other provisions that give effect to
the principles of Natural Justice. Article 22 5 contains very valuable element
of natural justice as it gives protection to arrested person against arrest and
detention in certain cases. Right to life and personal liberty guaranteed under
Article 21 also embark these basic principles in broad sense.
The VIP Culture In Dispensing Justice
"No one commits a worst injustice than it is committed in the name of justice"-
These words by Plato sum up the whole story. Courts have advocated for
abolishing VIP culture all over, but when one looks inside the courts itself,
one can easily realize that Justice is also delivered according to classes.
While a celebrity like Navjot Singh Siddhu, Salman Khan or Sanjay Dutt is dealt
leniently by the courts even after committing a grave crime, more than 67% of
the prisoners in India are still under trials, with probably most of them being
guilty of an offence which would lend them lesser imprisonment than they have
already spent. So the bottom line is, that if you are a VIP, you have a luxury
of committing a serious crime and still getting away with it.
Coming to Navjot Siddhu Case which most of the people might have forgotten
except the Victim's family-Sidhu along with his friend 'killed' a person merely
because he tried to overtake Sidhu's car. After eighteen years of the commission
of the crime, he was convicted of culpable homicide not amounting to murder with
a jail term of 3 year and fine of Rs. 1 lakh. Such quantum of punishment was
always questionable, but what added salt to the wounds of the victim was the
Stay order passed by the Supreme Court on his execution till the appeal is heard
in the apex court. The appeal is still unheard and he is out on bail enjoying a
luxurious life. There is every possibility that he might not go to jail at all.
On the other hand, the Victim's family is still waiting for justice and sad part
is, that their wait can last forever.
The Court's reasoning in this case is certainly unjust as his conviction was
suspended as he was a sitting Member of Parliament at the time of his
conviction. Here, the court said that "Unless the attention of the Court is
drawn to the specific consequences that would follow on account of the
conviction, the person convicted cannot obtain an order of stay of conviction.
The courts should exercise the power to stay conviction only in exceptional
circumstances where failure to stay the conviction, would lead to injustice and
irreversible consequences6". This may be a valid reason, but categorizing
Sidhu's case as "Exceptional" is beyond understanding. The court went on to add
that "It was not necessary for the appellant (Sidhu) to have resigned from the
membership of the Parliament as he could in law continue as M.P. by merely
filing an appeal within a period of 3 months and had he adopted such a course he
could have easily avoided incurring any disqualification at least till the
decision of the appeal. However, he has chosen to adopt a moral path and has set
high standards in public life by resigning from his seat and in seeking to get a
fresh mandate from the people. A person who resigns from the Parliament or the
Assembly and seeks a re-election, if elected, will have greater moral authority
to represent the constituency7".
Following these parameters set by the apex court itself, life just becomes
easier for all the Convicted politicians as all they need is just resign from
their seats, and then seek reelection in order to get their conviction suspended
from the court. This is a clear example of the VIP culture followed in the
courts. This was not a one-off incident. From Salman Khan to Sanjay Dutt to
Laloo Yadav, this list of VIPs benefitted from Indian Judicial System is
everlasting, one of the rare exception being Jayalalita, who was denied any VIP
treatment by the court.
Coming onto Salman Khan's case, one can even argue that Justice was ultimately
delivered or at least he was convicted, but what followed thereafter was
something that just makes a common man to wonder, that if Indian Judiciary is so
fast, why are crores of cases still pending? The series of events on 6th May
At 1.10 pm, Khan was sentenced to five years in prison. Process of filing appeal
had already been initiated by his lawyers.
At 3:15 pm, Justice Abhay Thipsay agreed to hear Khan's plea at 4 pm.
At 4:40 pm, the paperwork was finally done and Khan's appeal8 came up before
Justice Thipsay. An order was passed that the applicant has been on bail
throughout his hearing in the lower court and since a copy of the lower court's
judgment was not made available to him, he was entitled to interim relief.
Salman Khan's bail was continued for two more days.
Now, anyone who is well worse with the process of filing a case knows it very
well that how slow and hectic is filing an appeal and an application, and
getting it numbered. Court clerks are overburdened by the sheer volume of cases
being filed daily, and this situation that worsens when court vacations draw
near, as in Salman's case. It would have taken at least a month for a common man
for the same. Here, it was Salman Khan, a high profile celebrity being
represented by a high profile lawyer that just put the system on superfast
wheels, which somehow slow down at a common man's station.
When we see this kind of injustice done by the Judiciary itself, it becomes
necessary to analyze the matter through the eyes of Jurisprudence. According to
the school of American realism, statutes are not law by virtue of their
enactment. They only become law when applied by a decision of a court. Hence,
the role of the judge is central to a proper understanding of the nature of law.
The realists argue that besides the written rules and facts, there are certain
'illusive factors', outside the realm of law, which affect the outcome of the
cases. Such factors can be racial, religious, economic etc. which can prejudice
the judge in delivering his judgment. In many cases, such factors could have
been the personal stature of the offenders, media reports and the public opinion
which have worked adversely on the path of attaining justice as the judges
appeared to have been carried away by them.
It is unfortunate that such unequal treatment by the court convey wrong
messages to such star figures and the society in general. They serve to
highlight the apathy of courts and related judicial institutions towards the
plight of common men.
victim's poin reparation for victims and Impunity of perpetrators are two
sides of the same co VIP
Laloo Yadav was charged in the fodder scam of 1992 and was sentenced for 5 years
of imprisonment. However, the way he is served the imprisonment, it seemed to be
more of a luxury than punishment. Longer visiting hours in comparison with
regular inmates, an upper division cell with a TV and two cooks, a generous
supply of rice, fresh vegetables, mutton/chicken or fish, ghee, and seasonal
fruits and the option of getting food from outside, were just some of the
entitlements he got9. While he was in Jail, he reportedly spent a few hours each
day in the chamber of the jailor, meeting people and discussing various matters.
He was also reported to have issued some jail officials veiled threats, thus
clearly making a mockery of the rules and regulations. As per the jail manual,
relatives can meet a prisoner once in 15 days. Jail manual 1001 says there
should be no political discussion in the jail. Everyday Lalu Prasad met around
100 people, including political leaders. He held various political discussions
A Public Interest Litigation was filed in 2013 by Lawyer Rajiv Kumar against
this VIP treatment to laloo for his alleged violation of prison manual and other
jail regulations. The PIL also demanded action against jail authorities as
Jharkhand Vikas Morcha-Prajatantrik (JVM-P) legislator Dullu Mahto, who was
shifted to AIIMS in New Delhi from Dhanbad Jail for treatment was roaming free
in New Delhi as he was seen at a party with high-profile people like Congress
However, the instances of luxurious treatment for VIP convicts are hardly new.
Manu Sharma, son of congress leader Vinod Sharma convicted of the murder of
model Jessica Lal, had also been found partying in 2009 after being granted
parole by a court to attend his grandmother's funeral and see his ailing mother.
Similarly, Jagir Kaur, ex CM of Punjab also got some royal treatment in jail.
Also, one does not have to be only politically connected to get access to
privileges. Sometimes even having a impressive crime record helps. In Mumbai,
gangsters like Arun Gawli and others have frequently been accused of getting
privileges when they appear in court and even in jail thanks to staff that
choose to turn a blind eye. For a system that preaches equal justice for all,
sadly the extent and manner of punishment is not the same and is decided purely
by money or social/political standing.
The Helplessness Of "Non-Vip" Under-Trials
Machang Lalung, a man who had been arrested at his home village in 1951 under
section 326 of the Indian Penal Code for "causing grievous harm" spent 54 years
in a jail in Assam awaiting his trial, and was finally rescued by NHRC in 2005.
This seems shocking as he became just a lost entity. For initial 16 years he was
not said to be fit for trial due to his medical condition, but in 1967 he was
declared fit to appear before the court of Law. Shockingly, he was never
produced in the trial court for trial even though he was fit to stand for trial
after 9th Aug. 1967. He was finally released in 2005 when NHRC intervened in his
case and 4 other under-trials when some human rights activists brought these
matter to NHRC. Poor man died in 2007, with his life just going in prison
without any reason.
Among the other such cases were of Khalilur Rehman who had been in custody for
35 years, Anil Kumar Burman, who had been in custody for 33 years, and Sonamani
Deb for 32 years, while Parbati Mallik had been detained in a psychiatric unit
for 32 years. All these cases were cognizated only after grabbing Media
attention. According to a National Crime Research Bureau
(NCRB) study, Crime in India 2002, nearly 220,000 cases took more than 3 years
to reach court, and about 25,600 exhausted 10 years before they were completed.
A staggering number of prison inmates awaiting trial have already been
imprisoned longer than the most rigorous sentence that they could ever be given
for the offence they are alleged to have committed. In 2014, about 68% of the
prisoners in India were under-trials11.
As per the 2014 reports, there were a total of 2,31,962 Under Trial prisoners
charged under IPC, whereas 50,730 lodged as Under Trial prisoners under other
local/special laws. A total of 12,052 under-trial prisoners were lodged between
3 to 5 years at the end of the year 2014. Uttar Pradesh was on top with having
3,479 such under-trial prisoners in followed by Bihar (1,198), Rajasthan
(1,088), Punjab (1,038), Jharkhand (839), Maharashtra (677), West Bengal (633) &
Gujarat (614). The highest percentage of under-trial prisoners detained for 3-5
years was reported from Jammu & Kashmir (14.4%) followed by Goa (12.0%), A&N
Islands (10.3%) and Gujarat (8.2%). All those under-trial inmates were detained
up to 5 years in Himachal Pradesh and A&N Island during 2014. During 2014, a
total of 3,540 under-trials were detained in jails for more than 5 years in the
country. The highest number of such under-trial prisoners were again seen from
Uttar Pradesh where 1,022 such under-trials were lodged in various jails , which
accounted for 28.9% of such prisoners at the national level, followed by
Rajasthan (523, 14.8%) and Bihar (477, 13.5%)12.
This overpopulated status of under-trials is a worrying sign because when we
look at the speed at which a celebrity is granted bail or is heard, there can
not be any fault in the process. It is just the approach which has to be
questioned. Boasting of equality and working on priority is what the Justice
dispensing system has turned into. The effects of this are grave as the problems
for these poor under-trials are not just limited to confinement, but cruel and
gruesome treatment in prisons, something which they are not entitled too. It
seems that they have committed a grave crime for being ordinary or poor people
than the crime which brought them behind the bars. Abhijnan Basu, who was
serving his prison sentence at the Presidency Jail, West Bengal, was someone who
paid the price for raising his voice against such treatment as he was murdered
by the officers at the prison in 2004 because he dared to complain about the
inhuman conditions and
Misuse of Liberty-The Law of Parole & Its Application
The rule of parole in India is largely governed by two acts namely The Prisons
Act, 1894 and the Prisoner Act, 1900. The Prisons Act of 1894 defines the
furlough system 14 and the parole system15. Basically there are two types of
Parole in India-Custody & Regular. Custody parole is generally granted in
emergency situations like death/serious illness or marriage in the family. It is
limited to a time span of six hours during which the prisoner is escorted to the
place of visit and return therefrom16. The grant of parole is subject to
verification of the circumstances from the concerned police station and is
granted by the Jail Superintendent.
On the other hand, Regular Parole is allowed for a maximum period of one month,
except in special circumstances, to convicts who have served at least one year
in prison. It is granted on certain grounds such as Accident/death/Serious
Illness or marriage of a family member, Delivery of Child by wife of the
convict, to maintain family/social ties, serious damage to life or property of
the family of convict by natural calamities or for pursuing the filing of a
Special Leave Petition or other appeal.
Every law seems perfect, unless the offenders find a way to play with it. Same
has been done in the case of Parole. More often than not it has been misused.
Manu Sharma, convict in Jessica Lal murder case, was found partying while being
on Parole. This not only shows the casual administrative approach from the
Prison authorities as well as state governments, but also tells us how an
influential person can make the mockery of the Justice Delivery system in this
country. Interestingly, a second parole was granted to him after he was found
misusing the first one.
When we talk of Parole, one name always comes in mind-Sanjay Dutt for every
alternate month a news flashes that he has been granted Parole again. Since the
pronouncement of the Judgment, he has availed this liberty numerous times.
According to the records, he has spent more than 40%
of his punishment outside the jail being on parole. This attracted a huge
agitation, with everyone slamming the state administration that was too lenient
to deal with this issue. Ultimately, Bombay High Court had to interfere and
strictly addressed this issue. The court said that it was high time the rules
for such relief were looked into, and that there was a need for making "radical
changes" in the Prisons (Bombay Furlough and Parole) Rules, 195917. The court
then directed the State Govt. to constitute a committee on the issue.
Interestingly, when we look into the history of his parole, one comes to know
why his parole was termed as "VIP treatment" by many. Even before he was to
surrender before 21st April 2013, the court granted him further extension of one
month on "Humanitarian Grounds", when he pleaded to complete his movies. Also,
while he took parole on his wife's poor medical condition, his wife could be
seen in various parties and he could be seen shooting for some movies. Currently
he is out on parole for his Daughter's surgery and seems to have been enjoying a
luxurious life. Thus, looking at these instances, one can say that for people
possessing money, higher status and power, Law is an easy thing to play with
Need For Reforms-How Can People's Faith In Justice Be Restored
With our Justice delivery system being derailed, it becomes necessary to set a
right path. The need of the hour is to set some right examples. The Judiciary
from time to time has set certain examples, but the larger part of this issue is
still to be dealt by the Judiciary itself. In Kesar Singh Guleria v State of
Himachal Pradesh and Ors18, the court referred to the grounds for declining
parole & thereafter proceeded to hold that "a mere disturbance of law and order
leading to disorder is not the same as disturbance which subverts the public
order. An apprehended breach of peace or the possibility of the prisoner
committing a crime during the parole period, without anything more, would
constitute a law and order problem and not a problem touching public order. It
would thus appear that "public order" comprehends disorder of lesser gravity
than those affecting "security of the State" and that "law and order"
comprehends disorders of lesser gravity than those affecting public order".
Another welcoming action taken recently was Jayalalita not getting any VIP
treatment in Jail. She was treated as an ordinary prisoner only and apart from
some security and medical aid, she was not getting any luxury in the Jail. Best
part was that she did not even ask for it. Steps like these tend to restore
people's faith in Judiciary. However, these incidents are very less as compared
to those contrasting to it. Also, the problems for the poor Under-Trials remains
the same. Thus, it becomes very important to establish a uniform procedure for
each citizen of India regardless of his/her social, political or economic
status. For example, like in Salman Khan's case it happened, every convict who
is not served with a copy of the judgment sentencing him to prison, should be
granted the same relief and at the same speed as Salman got. The day when every
poor man, represented by a non-celebrity lawyer, can get his appeal and
application numbered the same day, and that he or she is then heard by the judge
and granted necessary relief within hours, that day we can say that Justice is
served with equality.
Speedy Justice is the need of the hour. Lakhs of Under-Trials who await their
turn to be heard, should be heard as early as possible. In those cases where an
Under-Trial has served an imprisonment equivalent to the quantum of punishment
to be served for the crime he is alleged of, those under-trials should be
released immediately and their cases must be disposed of. Equal treatment in
prison is the need of the hour and the authorities must now give a serious
thought about it. The law of parole, as discussed above needs some quick and
stricter reforms so as to prevent its misuse.
Going to jail is something that strikes a serious fear into the mind of most law
abiding people. However, if you possess a VIP status in the society, jail is
just a temporary stay away from home with a few inconveniences thrown in to
gently remind you of where you are and most of the other things remain the same
there. It is a big irony that if we come out of books and theories, we will see
that in reality, Justice is not just, Equality is not equal and Equity seems to
be missing somewhere outside the VIP enclosure.
While world's largest democracy needs to show the way to the world, it is
actually moving backward by widening the gap between the rich & the poor. When
we see the actual implementation of these terms, it is nowhere close to their
meaning. So, for restoring people's faith in justice, it becomes a must to
deliver justice with equity and thereafter ensure its strict implementation.
Also, justice has to be delivered with a fair speed, as it is said that "Justice
delayed is Justice Denied".
For a system that preaches equal justice for all, surely the extent of
punishment should be the same and not decided purely by money or social
standing. Also, going ahead with the punishment, the manner and process of
exercising that punishment must also be uniform and impartial to everyone. If
that happens, then only we can say that Justice is actually served with equity,
otherwise, the answer to this question shall remain negative.
AIR 1991 SC 101
AIR 1978 SC 597
5 No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his
Navjot Singh Siddhu vs State of Punjab, Appeal (crl.) 59 of 2007
Supra Note 6
8 Criminal Application No 592 of 2015 in Criminal Appeal No 272 of 2015
9 B Vijay Murty/Bedanti Saran-VIP treatment for Lalu Prasad in Prison,
Hindustan Times, Ranchi, 03/10/2013
leader Oscar Fernandes. The PIL still awaits any substantial outcome as it is
pending in Jharkhand High Court10.
10 Fodder scam: PIL filed against Lalu Prasad's durbar, jail comforts-India
Today, IANS Ranchi-04/10/2013
NCRB Report on Prisoners, 2014
Supra Note 11- the poor quality of food13. These incidents are very common,
but unfortunately are limited to a common man only.
OMCT Report-India, Case Id. IND 061204
Sec. 5(A) ‘Furlough system' means the system of releasing prisoners in jail on
furlough in accordance with the rules for the time being in force.
Sec. 5(B) ‘Parole system' means the system of releasing prisoners in Jail on
parole, by suspension of their sentences in accordance with the rules for the
time being in force.
Parole/Furlough Guidelines, Government of National Capital Territory of Delhi,
Home Department, 2010
Vaibhav Ganjapure- Bombay HC concerned over misuse of parole rules, asks Maha
govt to reconsider them, The Times of India, 14/02/2014
1985 Cri.L.J 1202