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Katju Reads Sanju His Rights

When commenting on the Sanjay Dutt case, Katju would do well to expand his references beyond Shakespeare to Kipling.

katju and sanjay dutt

The letter written by Justice Katju to the governor of Maharashtra seeking a pardon for Sanjay Dutt, makes one thankful for the assimilation of the words “facepalm” and “headdesk” into our active vocabularies.

More seriously though, it worries me that senior public figures such as him would use such flimsy arguments to try and secure a pardon for someone accused of such a serious crime. The ridiculousness of the “Gandhigiri” argument apart, there are many reasons why Justice Katju’s letter does not even begin to make a credible case for Sanju baba’s pardon.

The power of pardon under Article 161 by the Constitution is different from the judicial power. The Governor/President can grant pardon or reduce the sentence of the Court, even if a minimum is prescribed. Hence there is no doubt that the Governor can grant pardon/reduce the sentence. For example in the case of Commander Nanavati who was held guilty of murder, the Governor gave him pardon although the minimum sentence for murder is life sentence.”

The Justice goes on to state that since Dutt’s crime is less serious than that of murder (as in Commander Nanavati’s case), a pardon should be considered. To my mind, the two cases do not even begin to compare. Cdr Kawas Manekshaw Nanavati was a naval officer who, in April 1959, shot dead his friend Prem Ahuja after he found out that he had been having an affair with his wife, Sylvia Nanavati. But it wasn’t as simple as that. Apparently, Cdr Nanavati wanted to shoot himself. However, he first asked Ahuja whether or not he was willing to accept Sylvia and his children. After Ahuja supposedly said, “Do I have to marry every woman that I sleep with…Get the hell out of here…” a scuffle ensued, in which it is claimed Cdr Nanavati shot his friend “by mistake”. The prosecution argued though that it was premeditated murder. The long and short of it was that Cdr Nanavati was found not guilty of murder by a jury. The judge found it to be a miscarriage of justice and the case went to re-trial where the prosecution’s version was upheld, he was found guilty and sentenced to life imprisonment. After serving three years of his sentence, he was pardoned by the then-Governor of Maharashtra, Vijaylakshmi Pandit. Yet, there is one crucial difference between Cdr Nanavati’s and Dutt’s case – Cdr Nanavati voluntarily surrendered to the Provost Marshall of the Western Naval Command and confessed to the murder. Moreover, if the Nanavati pardon is to be the precedent for and the pivot of Justice Katju’s argument, let’s not forget that the Commander was granted a pardon only after Ahuja’s sister granted the permission to do so. This is an important detail because it shows that the Nanavati case was between two individuals and the law. Ultimately, it was Ahuja’s next of kin who suffered the most and whose prerogative it was to grant that permission. Sanjay Dutt’s conviction is between a man, the law and society. In such a scenario, who has the prerogative to give such a permission?

Justice Katju goes on to list six reasons why Dutt should be excused of his sentence. In short:

a)    He has suffered for 20 years, had to seek permission for foreign shoots, could not secure bank loans etc.

b)    He has served 18 months of his sentence

c)    He is married and has small children

d)    He is not a terrorist, nor was he involved in the bomb blasts

e)    His parents worked for the good of society and often boosted the morale of troops at the border

f)     He has revived the message of the Mahatma through his films

This is the point where you headdesk. If Sanjay Dutt’s filmography on IMDB is to be believed, he has had the luxury of acting in 91 films from 1994 to 2013. In the interim, he got married and had children. In short, despite the “stress” that he might have faced, he has led a fulfilling personal and professional life which also benefited from the adulation of his fan following. This is much more than what can be said for non-celebrities acquitted of terrorism charges and not found guilty of any crime. Also, by the logic of point “e”, would Justice Katju support the dropping of charges against Air Chief Marshal (retd) SP Tyagi? After all, one does not rise to being the head of the Air Force without having served the nation to some extent. Why not then look away from the allegations of bribery, considering that he received the Vayu Sena Medal for distinguished service as well as the Ati Vishisht Seva Medal and the Param Vashist Seva Medal? Surely, one’s own service to the nation holds more sway than the service of one’s parents?

Justice Katju asked on NDTV 24X7 if we wanted to extract a “pound of flesh” from Sanjay Dutt (Left, Right and Center, March 22, 2013). I assume the implication was that if he has served 18 months in prison and is a reformed man, he should be let go. There is no reason why we should be apologetic about the retributive function of criminal justice. It is widely recognised that retribution, deterrence and reformation are the three aims of sentencing. If by “pound of flesh” Justice Katju is asking if Sanjay Dutt should be subject to retribution, the answer is yes.  Tempered retribution determined after a trial, under conditions which respect human rights and within legal limitations is important for closure and to ensure that vigilante justice doesn’t take over. It is nothing to be ashamed of. Moreover, the retributive act is important for the sentencing to fulfil its aim of deterrence.

Let’s be clear about one thing. Sanjay Dutt has been convicted of a serious crime. The consequences of hobnobbing with gangsters, procuring AK 56 rifles and grenades and then trying to destroy them would have much graver consequences for the rest of us than they have had for Sanjay Dutt. Though in all fairness it may be disingenuous to accuse Justice Katju of being in awe of Dutt’s celebrity, such a pardon will reinforce the notion that there is a separate law for the rich and the famous.

In the past, Justice Katju has waxed eloquent on how 90% of Indians are idiots and we are a poverty-stricken nation because we are unscientific, believe in astrology and pay way too much attention to filmstars. Yet, that does not explain why the United States, a nation where Kim Kardashian is famous for being famous and where the creationism v/s evolution debate gets serious attention, is so much more developed than India. A better explanation is that the United States has better institutions than India. Acemoglu and Robinson have written an entire book on the subject (Why Nations Fail) and have talked about how equality before the law (among other things) ensures that a larger chunk of a nation’s citizens can access the means to prosperity and economic success. If the good Justice does want to genuinely see the development of India, he would agree that Dutt’s case is a good motif to illustrate that everyone faces the same economic incentives and punitive deterrents under a genuinely democratic system. This opportunity must not be squandered.

Justice Katju may have been reminded of Portia saying that justice should be tempered with mercy but maybe, a verse from Rudyard Kipling is more apt in portraying the consequences of not pursuing the true course of justice:

Across a world where all men grieve

And grieving strive the more

The great days range like tides and leave

Our dead on every shore

Heavy the load we undergo

And our own hands prepare

If we have to parley with the foe

The load our sons must bear

The views expressed by the author are personal.

Priya kale

 

Image Source: [http://www.flickr.com/photos/80666643@N00/5954207202/]

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  • http://twitter.com/MrSamratX Samrat X

    Justice Katju’s arguments are not flimsy in the least. As a former judge of the Supreme Court, he presumably knows something of the law.
    The fundamental question here is, why does society put some of its members into jail? The first reason is to ensure its own safety. Rapists and killers need to be imprisoned because they are a threat to society.
    The second reason is reformation. It is to reform the erring individual.
    The third and final is deterrence and retribution for wrongs committed.
    In Sanjay Dutt’s case, it is clear that he is not a threat to society. Moreover, he has also reformed himself. And he has suffered retribution during his time in jail and also in the subsequent years during which the case dragged on.
    His story is widely known, and what has happened to him should serve as a deterrent to others who might feel tempted to keep assault rifles at home or hobnob with gangsters.
    In other words, the demands of justice are already met. Anything more is sheer and pointless vengeance.

    • durdant

      “His story is widely known, and what has happened to him should serve as a deterrent to others who might feel tempted to keep assault rifles at home or hobnob with gangsters.”
      Really?? He himself was caught talking with the same gangsters whose company landed him in jail. That too, good 8 years after he was jailed.

      Law guides the intensity of retribution and if it is 5 years, let it be.

      He should be completing the term, which is much lighter than what others got for same offense. For him, suffering 18 months does not equal to 5 yrs imprisonment of less equal people (poor people).

    • raghu

      There are too many KATJU’s in this country and your one among them………………..
      I think the article rightly argues why Katju is stupid in his pardon letter……………….
      What about the 70 year old lady who was trapped unaware by the Gangster, why not pardon Air chief marshal, after all though he is allegedly received bribes but he has served the country for almost 35+ years and was the head of well disciplined organisation……
      Well have some sense if not common sense…..

    • madhukar nikam

      His story is widely known, and what has happened to him should serve as a deterrent to others who might feel tempted to keep assault rifles at home or hobnob with gangsters…………………………………..how is it going to be a deterrent when you are asking for pardon for his crimes??

      • http://twitter.com/MrSamratX Samrat X

        Good point. One and a half years in jail is not enough to deter you? It is quite enough to deter me.

        • VV Raghav

          After taking a potshot at Mr. Madhukar Nikam’s comment, you have written that one & a half years in jail “is quite enough to deter” YOU. Perhaps, you have forgotten that the Supreme Court is not interested in deterring wannabe wisecracks (like you) but in deterring potential TERRORISTS.

        • madhukar nikam

          Perhaps realisation should have happened while hobbing with criminals …..all the goodwill earned by Senior Dutt got his son just 5 years instead …he must thank his parents for such a small time in prison, deterrence is for normal people not for criminals

    • Priya Kale

      Hi Samrat,

      Whether or not Justice Katju’s arguments are flimsy are a matter of personal opinion, I guess – more so as they are not rooted in the law (except for the Nanavati precedent).

      The question is not whether SD is a threat to society. The question is whether or not the law needs to be upheld. For good or bad, the IPC lays out a range of punishment which it feels should ideally serve as a deterrent depending on the severity of the crime. While SD’s serving an 18 month sentence may deter some, if such are the grounds on which a pardon is to be given, we might as well do away with the IPC altogether. I don’t think any of us would be comfortable in a situation where judges arbitrarily decide on the quantum of punishment because tomorrow, there may be a judgement wherein a month in jail for rape would be considered a minimum credible deterrent.
      So no, I don’t think upholding his sentence is vengeance. If that were the aim of the courts, they wouldn’t have knocked off a year – they would have given him the maximum possible 10 years.

      Lastly, the reasoning for his pardon is based neither on extenuating nor extraordinary circumstances. I have deliberately kept out the Tehelka investigation out of my article because it is not relevant to the judgement per se. Given that the circumstances surrounding the crime are murky AND the sentencing has been at its most lenient, the judgement should stand.

      • Ashok Jahnavi Prasad

        I agree with most of your reasoning Priya and as I have said elsewhere , I am not comfortable with the multitude of reasons that are being espoused for the pardon/commutation of sentence/ suspension of sentence. Moreover having followed the Nanavati trial as part of my dissertation on the merits of the jury system, I would wholeheartedly concur that Nanavati’s pardon is not a very apposite analogy. Mamie Ahuja did pardon Nanavati in writing but I happen to recall that the popular perception was that she was coerced into doing so and this perception was not helped by the unseemly haste demonstrated by Vijayalakshmi Pandit in pardoning him. The truth is that Nanavati was extremely well connected and this did not do his cause any harm. He had been the Military Atache to Krishna Menon in London at the High Commission and was a regular feature at the Nehru household. While one may argue that Sanjay is just as well connected-his father was always a very close buddy of Pranab- I cannot for the life of me visualize Sunil Dutt pleading for pardon being a person of uncompromising integrity. Must not be forgotten that he himself had said that his son had done something wrong and merited punishment BUT for the right reasons. I would contend that the Supreme Court finding that he was not in any way directly concerned with the blasts would have satisfied him. And while invoking the supremacy of the apex court we have to accept that verdict. My only point here was that if we do have a constitutional provision for pardon ,then the cases that are likely to be put forward for it inevitably are going to be the ones that have done the rounds of all the courts-including the apex court. And in that case, I doubt if any would have prima facie a markedly better claim to pardon than Sanjay. I would not even attempt to pre-empt how the Governor or the President would rule-that would be their own prerogative emergent from their own wisdom. But unless we remove the constitutional mandate , how can we argue that he does not qualify as a candidate for this advantage. Remove this constitutional provision by all means if you regard that as an anomaly but international experience suggests that the only democratic country that attempted to do this was France-and they re-introduced that seven years later. Every democratic country has for reasons best known to the different constitution framers retained this provision. My contention is that now the debate has arisen, we should try and work out a measure by which we can ascertain as to who qualifies for this benefit. There is understandably going to be resentment if those who can afford expensive lawyers are placed at an undue advantage. But that calls for reform of the system. Moreover if we are going to invest our governors and presidents with this power ( as our constitution has) it would be in the fitness of things not to place the likes of Hansraj Bharadwaj and his ilk in thise exalted positions to disgrace the office.So far we have not been able to ensure that those who hold these offices have a demonstrable record that inspires confidence.And lastly, if the precedents are any guide, let us not forget the Shamim Rahmani case. As far as I can recall, she served less than 2 years of her life sentence for brutal murder before the Governor ensured that she was out of prison and declaring that she wanted to write a book and act in films. Surely Sanjay’s case is much better placed than hers . I shall as I mentioned earlier not pre-empt how those in authority would have ruled. My sole purpose was to adumbrate that this post judiclal commutation is provided by our Constitution as it stands at present and perhaps the arbitrary manner in which it has been exercised has set not very healthy precedents which need to be addressed. All this is redundant now but my basic point I believe is valid-that as of now he does qualify to be put forward -how that would emerge is another matter! But my compliments Priya for your elaboration of this vexing issue!

    • http://www.facebook.com/manojsh Manoj Sharma

      almost half of the people in Indian jails today are under trials. Many of them would have spent more time in Jail than Sanju baba, without conviction. What about their rights?. Fundamentals of why we put people in jail, should be applied to everyone who is put in jail. This is the point of contention. Law should be same for Bolllywood as well as aam aadmi.

      Demands of justice can’t be revisited every time we are talking about a high profile case. If that is the case, then there is no need of a constitution, we should have a nationwide khap panchayat, where all cases may be decided.

      I watched a TV debate between Justice Katju and Dr. Subramaniam Swamy. Katju didn’t seem to have any valid argument on why Dutt’s sentence should be reduced. He was not comfortable answering questions on live TV and kept on repeating same arguments of humanitarian ground, again and again.

  • Dr T Guha

    Wonderful article! Thanks

  • navin dhighe

    when a democratically elected highly pragmatic honest chief minister wins a hatrick in election and plans to be more proactive katju is highly outraged but at the same time is not at all outraged when a proven anti national is sentenced the same justice katju wants the country to pardon this person and not serve even his minimum liberal sentence

  • K Sanjeev

    The issue is not what is possible under law. Do we today want to give an impression that the laws are different for people who are popular and have approach vis a vis the common man and further divide the society. Any way what has Sanju Baba done for the society at large? He has entertained masses for which he has made loads of money. Today in a already polarised society we need to shun the culture of ” Tumhe maloom hai main kaun hoon” and embrace law as concentious face less citizens.

  • http://twitter.com/Am8reesh skeptic

    Apply justice Katju’s parameters in Sanjay Dutt’s favor to any criminal, ANY CRIMINAL howsoever dreaded, he/she deserves pardon. Whoever said Law is An Ass stands vindicated

    • Qwerty

      skeptic, the Law tried and, very correctly, convicted Sanjay Dutt. It is a former Judge Katju (not the law) that is asking for a pardon. Under the circumstances it is abundantly clear that it is not the Law that is the Ass.

  • http://www.facebook.com/animesh.bhattacharya.92 Animesh Bhattacharya

    And to be noted that sanjay dutt musthave played underworld don the most number of times….now what the heck has gandhi melodrama to do with that. In the country where judges are infamous for spelling apalling decisions…katju is brick from the same wall. He shld first resign from PCI before appealing in such cases. Who could have believed that we will give leisure time to marines for celebrating festivals

  • http://twitter.com/MrSamratX Samrat X

    It is true that the law acts differently on different people in our country, and this is wrong. On one hand, thousands of nameless goons in Bihar and UP who carry ‘kattas’ are never charged under the Arms Act. No one bothers. At the other extreme, politicians who oversaw the murder of hundreds of Muslims and Sikhs are still very much around, and doing quite well for themselves. Again, they are not touched.
    But when a movie star does anything it becomes a huge issue. Even smoking a cigarette becomes a controversy and cases are filed. That is because people react irrationally to them, either with extreme fandom or extreme hate. Both are silly.
    As far as fulfilling the requirements of law are concerned, law exists in the service of justice. Where the letter of law is given precedence over the spirit, injustice is done.

    • http://www.facebook.com/manojsh Manoj Sharma

      it wasn’t one katta, or an unlicensed revolver. He had 3 AK56 assault rifles. It was given to him by the most wanted criminals of the world. He had connections with the D-company, which carried out Mumbai blasts.
      So, this case is not a usual case under arms act.
      Moreover, if nameless goons in UP and Bihar carry guns, which is wrong, does not make Dutt’s wrong, a right.
      Justice Katju should request Judges of those areas to take cognizance of this, and ask the police to take action against those goons as well, instead of spending time in batting for him.

  • madhukar nikam

    Very well argued!! The conclusion drawn by me,as one among the 90 % idiotic population(as defined by Justice Katju) hope Justice Katju has not delivered justice in the same manner the way he is speaking in this case!! I Do hope this hope is not against the hope!

  • http://www.facebook.com/bhuvarahan.seshadri Bhuvarahan Seshadri

    your notings on the nanavati case is revealing. The point of permission given by the affected is very apt. Thanks Priya

    • Priya Kale

      Thank you. I’m glad you found it useful

  • John LeGrasse

    I wish the exalted Justice, in the highest Gandhian tradition, offers to undergo Dutt’s prison term for him, instead of repeatedly reinforcing the point that he will champion the lousiest cause if only to ensure that the spotlight stays on him. This will give us a 3-year respite from having to witness public debate in our country being dragged down to such sordid levels by self-loving busybodies.

    In causing erosion of public faith in the judiciary which he served, he is translating one of Arundhati Roy’s wettest dreams into reality.

  • Nidhi

    Justice Katuju epitomized the very flawed Indian Education, Examination, Recruitment, Personnel, Social, Cultural , Political, Non-Political system that has been cultivated, brought up and is still flourishing in India since the day of dawn of Independence, There are many Katjus playing out judicial-political-social roles from the rank of authority even now. I wonder this person who is completely devoid of Basic Common Sense ( forget about the mechanical knowledge about the man made laws) has ever been a judge of supreme court. Shame.

  • Amarnath Wanchoo

    I think that Katju needs to get his head examined

  • Boombox321

    Excellent article! Idiot Katju needs to be packed and shipped to black sea, never to return!

    I didn’t know much about this case in details. I just wonder, why in India, prominent people like Sub. Swamy, have not filed a petition for review of the case, to decide on what basis and logic tada charges were let go!

  • http://www.facebook.com/people/Arun-Kumar-Saxena/100002541830588 Arun Kumar Saxena

    Hold on Justice Katju. Please do not send a wrong message to society.
    My emotional quotient is high.My heart bleeds for Sanjay Dutt. I can empathise with him and feel the pain.But, my empathy would be misplaced as emotions have no place in the verdict of the highest court of Justice.
    But, I am amazed at the sharp reactions of the bleeding hearts in the world of politics and filmdom.Not to lag behind,even Mr Markanday Katju ,former judge of Supreme court who besides being a citizen of India, also wears the hat of Chairman, Press Council of India. He is a public servant holding a statutary office.One wonders whether he is discharging his duties diligently? Is he being fair and just by appealing to the Constitutional head of Maharashtra to use his discretionary powers and grant gubernatorial pardon to Sanjay Dutt . Did he visualize the sweeping repercussions, such an action would have on other cases,that are similarly circumstanced ?
    Against this background ,one trusts, Katju Sir takes a judicious and holistic view in the matter with his wisdom,not emotions.

    A K SAXENA (A retired civil servant)
    http://www.aksaxena.co.in
    blog.aksaxena.co.in

  • Suresh P

    Wonderfully written. Even though everyone should get a chance to get rehabilitated, it should not be selective. Human beings make mistakes and we should pardon non heinous crimes but after saying that, it should be democratic.

  • AKM

    SD has enjoyed several privileges for being Sunil Dutt’s son,a film star , and rich. I don’t begrudge him his luck in being born to these things. The process of a pardon is also part of the constitutional rights accorded to him. Let him state all his mitigating factors and appeal. I wish he does his chakki peecing to the last second. For a start, can you imagine the plight of a middleclass XYZ who had seen too many gangster movies and got himself an illegal popgun, leave alone an AK56, at that point in time ? He would have been lucky to get life and if he had by some stroke of luck been a Muslim, could have got capital punishment. Mr Dutt, you’ve exhausted your quota of luck. Don’t stretch it. Would be a big joke if you got a pardon and some party or the other (the Shiv Sena has made a start) commences to make life a hell for you.

  • Rutvik Pathak

    We live in a world where money is the REAL power,ABSOLUTE POWER…… see A raja… moving around after looting billions.Anybody going in jail will come out. I think even if sanju baba goes he will not finish his term he will come out and we will be watching Munnabhai part 3 .
    Money rules in this World.Sanjay was unlucky that he got caught , Any crime is difficult quantify in context, some actors get caught having drugs , scoot free…. actors killing anything and everything moving around him and what happens to him , he is minting millions.
    Law has become a joke , joke beacuse law and be bought and sold as you wish. They can be charged only in utopian world.