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Whether Justice delivered with equity or not

"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 administer justice.

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 Executive.

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 2015:

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 as well.

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 choice
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 

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