Is the judiciary acting independently under this Govt.?
By Faraz Ahmad
There was a general sense of disbelief and eyebrows raised when Justice A R Joshi of the Bombay High Court dismissed all the charges against film actor Salman Khan and completely overturned the order of the Sessions court which held him guilty of culpable homicide, not amounting to murder under Section 304-II of the IPC along with Section 337 and 338 for rash and negligent driving and driving under the influence of alcohol, in a case of road accident in Bandra, Mumbai, in September, 2002, where one person sleeping on the pavement died and a couple of others injured when Salman’s SUV allegedly rammed into Bandra Bakery after running over pavement dwellers.
In a way it was a landmark judgment because rightly so, Justice Joshi in his written order noted the hype created by the media about the case of this celebrity and stated, “He cannot be convicted through popular perception.” Virtually censuring the Sessions court which had last May held Salman guilty in the same case the High Court observed, “The court must decide the case on material brought on record (which) can be accepted as evidence. It must not be swayed by popular opinion. The court is expected to be impervious to pressure from public.”
In a serious indictment of the Sessions judge for having ostensibly been influenced by the media the honourable judge observed, “It is not new that a particular fact is repeatedly said and assumes the status of truth. The truth however, has to be probed before court of law and established on the principles of evidence and cardinal principle of jurisprudence. This burden cannot be forgotten.” One hopes that this judgment will deter the likes of Ujjwal Nikam who as a public prosecutor in the 26/11 terror case later admitted on record that he told a lie about Ajmal Qassab demanding Biryani, merely to influence the judges. But that is beside the point.
There are many who believe that Salman has managed to get away with murder largely because of his celebrity status and money power. That’s not really true for if that were the case then the Sessions judge would have been far more prone to such pressures. On that count, on the other hand one can actually commend the judges, both the Sessions and the High Court judge as well for having argued the case of granting acquittal to Salman logically and convincingly.
The facts of the Salman case are slightly different, even though the public memory is rather short. Salman had his accident in September 2002, just a few months after the 2002 Gujarat pogrom of Muslims under Narendra Modi and there was widespread condemnation in which Salman, upset with the plight of Muslims of Gujarat, being a bit of a loud mouth and rather naïve about politics, passed some uncharitable comments about that situation. From all appearances Salman was most likely driving under the influence of alcohol and did have an accident. Thus it was incumbent upon the law enforcing authorities to arrest him and charge him with rash and negligent driving under Section 337 and 338. But these Sections empower the Police to grant the accused bail immediately after recording the arrest. But in Salman’s case he was kept first under Police custody for interrogation and then in judicial custody for a while before the courts most reluctantly granted him bail. The Police also slapped on him Section 304-II of the IPC causing culpable homicide not amounting to murder.
The IPC is very clear that Section 304-II is applicable where a person had struck some person in the heat of a moment but not with the intent of killing. However if the victim dies the assaulter is charged under Section 304-II. Now can anyone argue that Salman Khan had intended to harm the pavement dwellers who were run over by his automobile. A bigger travesty of justice carried out by the Sessions Judge was to compare this case with the Sanjeev Nanda case. In that case Sanjeev Nanda first accidentally ran over six policemen standing at the police checkpost at Lodhi Road in New Delhi’s posh Luttyen bungalow zone while driving his BMW at great speed. But then seeing those injured lying on the road writhing in pain, he realized what trouble he could run into. So he reversed his car, ran over again on them to ensure that they died on the spot, drove away to Golf Links, parked his car inside his friend’s palatial villa, got his car washed and then pretended to be innocent. Sanjeev Nanda’s initial act was accidental, no doubt. But the second act was willful premeditated murder of six policemen for which he ought to have been charged with Section 302 and punished. This is not what Salman did. Therefore the answer to my question is a clear No. Then why was he charged with Section 304-II? To create a public outcry and ensure that Salman like Sanjay Dutt had to serve a jail sentence!
Salman suffered for more than a decade and it seemed almost certain that the prosecuting agencies were bent upon teaching him a lesson, unmindful of the facts of the case, by holding him guilty of culpable homicide. In the runup to the 2014 general elections when Modi was desperately looking around for a well-known popular Muslim face to stand along side Salman made his move. He and his father Salim Khan publicly supported Modi and Salman joined Modi in his kite flying publicity stunt in Ahmedabad. Is it too outrageous to guess that this acquittal is Modi’s repayment to Salman?
The same day another story broke out of how one of the prime accused in the 26/11/2008 Mumbai terror attack case, Dawood Geelani, nee David Coleman Headley, currently staying in the safe confines of some American prison, location not to be disclosed, agreed the Indian prosecutor and the court, has been granted pardon by a Special Judge in Mumbai G A Sanap in a jiffy at the instance of none other than our much celebrated public prosecutor Ujjwal Nikam because in a video conferencing this Geelani demanded this as a precondition for disclosing anything to the judge.
He was an important and trustworthy functionary of Lashkare Toiba (LeT) waging a war against India. Under the law there is only one punishment for the likes of Geelani, alias Headley, death by hanging. What did Yakub Memon did? We are not discussing here his culpability because that itself is a matter of debate. But even assuming his culpability, he had brought a whole suitcase full of evidence against Pakistan’s ISI proving their hand in the 1993 Mumbai bomb blasts and a whole lot of under cover terror attacks from Pakistan. The Indian investigating authorities had assured him a safe passage. Yet court after court from the Special Court in Mumbai to the just retired Chief Justice of India, H L Dattu each one dismissed his plea. One standard for David Coleman Headley who was also an undercover agent of the US intelligence. Another for the likes of Yakub Memon and Afzal Guru? Is that justice? Can you grant Geelani pardon with the wave of a hand just because he has a white skin and you anyway cannot touch him for he is under the protection of the USA? This doesn’t smack of a fair and impartial judiciary as Judge Joshi has tried to underline through his judgment.
And how can it be when the Supreme Court of India is unmindful of the Constitution and the right of universal suffrage granted by the framers of the Constitution led by Dr Babasaheb Ambedkar. It has upheld the right of the state governments like Haryana, Rajasthan and Gujarat to restrict the right of contesting panchayat elections to a few educated well off people, who have completed school education, sit on a commode in Modi and Sangh’s Bharat and have only two children. It is common knowledge that this will automatically disqualify the bulk of the poor Dalits, backwards and Muslims of any north Indian village. Thus in effect now only the educated, with pucca homes and commodes, practicing family planning will be entitled to contest the elections. And who would they be? Naturally the crème de la crème of the rural upper caste. What Mohan Bhagwat and his Sanghi band could not achieve through executive orders has now been facilitated by the apex court of India. Will it now be too far-fetched to call these Kangaroo courts, doing a command performance at the bidding of the Government and behaving as an extended arm of the Hindutva brigade?
In this scenario what is the significance of Delhi High Court order against Sonia and Rahul Gandhi in the National Herald case? Justice Sunil Gaur has left no scope for the lower court to deliberate on this case for he has pronounced that the criminality of the accused, in this case Sonia and Rahul Gandhi, is established. Now isn’t it a fact that the National Herald was established by Pandit Jawaharlal Nehru? Isn’t the Nehru Gandhi family the owners of the National Herald? This paper has all along been, till it was published a mouthpiece of the Congress party. For decades it was in the Red and successive Congress functionaries from Yashpal Kapoor to Moti Lal Vora have been looking after the affairs of the National Herald, running it with Congress funds. Simultaneously Subramanian Swamy has not hidden from anyone his personal animus against the Nehru-Gandhi family, except for a short stint of camraderie with Rajiv Gandhi resulting in his killing in Sriperumbudur. It is also a fact that this case has gladdened the hearts of all the Sanghis, each one jumping from the rooftop over supposedly tripping Sonia Gandhi. Sonia may not be Indira, despite whatever she may have said, but one act of the Janata Party government to arrest Indira made the whole of northern India revise its opinion about Indira. One wonders what Swamy and the RSS and their kangaroo courts are attempting.