Sorabjee on Sanjay Dutt's Sentence

Has Judge P D Kode been fair to Sanjay Dutt? That was the key question Karan Thapar asked Soli Sorabjee, the former solicitor general and former attorney general, on CNN-IBN Devil’s Advocate.

Karan Thapar: Mr Sorabjee, let us start with the six-years rigorous imprisonment sentenced to Sanjay Dutt. Given that he and his family did face threats and that the gun was never used, is it excessive or fair?

Soli Sorabjee: The minimum sentence that could have been imposed is five years. Instead of five, he gave six. The question is not whether a family was under threat. That’s not the point. That doesn’t come in when you give the mandatory period required by the section.

Karan Thapar: But why did the judge go for rigorous imprisonment?

Soli Sorabjee: That is another point. The Section Penal Code doesn’t talk about imprisonment but there is another section in the penal code, Section 60, which says that it can be rigorous in part and simple in part. May be the judge could have done that.

Karan Thapar: So you think this is an area where the judge could have used his discretion and gone for simple punishment instead.

Soli Sorabjee: I don’t think it’s an error because the judge knows the best. He has seen the whole nature of the case, the circumstances, everything.

Karan Thapar: So in your opinion, you might have settled for a simple imprisonment sentence.

Soli Sorabjee: If I were the judge I would have settled for simple imprisonment for half the period and rigorous for other period.

Karan Thapar: What about something else. Many people say that Sanjay Dutt may be naïve, foolish, rash and impetuous but he is not a criminal. He has already served 16 months in jail. In those circumstances, six-year rigorous imprisonment seems too harsh and in fact excessive.

Soli Sorabjee: I don’t think so. Even if those circumstances were present the imprisonment could not have been for a term of less than five years. That’s clear. Whether rigorous or simple, the term could not have been less than five years. The judge can’t go against what the statute prescribes.

Karan Thapar: If public opinion widely believes that the sentencing is excessive and therefore unbalanced and unfair, would that not throw into question first of all its acceptability and secondly even raise question marks on the credibility (of the sentencing).

Soli Sorabjee: Public opinion, if it’s misinformed, I would like to ignore it. Does the public opinion know that the minimum sentence is 5-years. It cannot be reduced than that. Jude Kode would have committed an illegality if he gave him three.

Karan Thapar: So the only thing that can be questioned is the fact that the prison sentence could have been simple rather than rigorous, that’s all.

Soli Sorabjee: That’s one thing you can. There be two views on that.

Karan Thapar: And you have indicated already that you perhaps would have inclined personally towards simple rather than rigorous.

Soli Sorabjee: No, that’s not what I said. I said that it could have been simple for one period and rigorous for another. He has not held a toy gun or an air gun. This is a serious offence, though not as serious as TADA offence.

Karan Thapar: Let’s then come to some of the legal points that have been raised. To begin with Satish Maneshinde, Sanjay Dutt’s lawyer, has pointed out that even though all the TADA charges against Sanjay Dutt were dropped, the judge chose to refer to the fact that Sanjay had consorted at parties with criminal elements and took the characterization of a gun as weapon of mass destruction whilst explaining the six-year imprisonment.

In other words, facts that were left out at the stage of conviction were borne in mind at the time of sentencing, and Maneshinde concluded that as a result the judge misdirected himself and ended up with miscarriage of sentencing. How do you respond to that view?

Soli Sorabjee: To be quite frank, I have not read the judgement. I have not studied it. But if it is as Sanjay Dutt’s counsel says it is—and he is a very competent council—I would say that prima facie he has been acquitted of TADA charges doesn’t mean that the judge cannot take other circumstances into account as to how Dutt came in possession of those arms.

How did he come in possession? What did he try to do later on? He tried to destroy the evidence that he had the guns. So these are the factors, which you took into account for the purpose of determining whether the conviction was possible under the Arm’s Act.

Karan Thapar: So what you are saying is that even though these facts weren’t used for conviction, they could have been borne in mind at the stage of sentencing without the judge being guilty of either misdirection or mis-sentencing.

Soli Sorabjee: I would not like to say anything about misdirection, not having studied the judgement. But prima facie I don’t think so. By the way, Sanjay is in fact very fortunate. If he were convicted under the TADA, there could have been great problems.

Karan Thapar: Absolutely. And the point is, since the TADA charges were dropped, is it fair that the circumstances that could have applied to the TADA should now be made to apply to the Arm’s Act for the sentencing purposes only.

Soli Sorabjee: I don’t like to use the expression ‘fair,’ because I think the judge was a bit lenient towards him in the way he kept on adjourning the matter, not pronouncing the verdict, and various other things.

But I suppose in the ultimate analysis what you can say is: just look at the offence and then see whether this punishment of six-year rigorous imprisonment could not have been tempered with mercy.

You may temper justice with mercy but not by sentiment. Not by what Bollywood says.

Karan Thapar: What about something else? Judge Kode in explaining the six-year rigorous imprisonment also said that Sanjay was guilty of inducing others to commit a crime when he asked them to dispose off the gun.

Now is that fair because to begin with all that Sanjay did was to telephone from Mauritius. The people he spoke to were adults. They had the right to refuse. So where does the word ‘inducement’ come into this?

Soli Sorabjee: Let’s not stress the word ‘inducement’.

Karan Thapar: But that’s the word the judge used. ‘Inducement’ is a specific that suggests that you are goading someone in some manner.

Soli Sorabjee: Suppose he had persuaded? It’s the same thing. Why did he phone them from Mauritius?

Karan Thapar: But they could have refused? Had they refused he could have found another means but they didn’t. In a sense they willingly agreed.

Soli Sorabjee: But the fact that they willingly agreed doesn’t detract from the fact that he wanted them to do destroy evidence.

Karan Thapar: But it does suggest that he didn’t induce them to commit a crime.

Soli Sorabjee: Well, I don’t know. You are just reverting on the word ‘inducement’. He did try, he did persuade, he did prevail over them and they tried to do it, so they have suffered imprisonment.

Karan Thapar: All right. A second legal issue is to do with Judge Kode’s refusal to grant Sanjay relief under the Probation of Offenders’ Act. Satish Maneshinde points out that the judge erred in not calling for the Probation Officer’s report, because it was mandatory for him to do so. And thirdly, he should have also examined the four witnesses the defence had provided.

Soli Sorabjee: Well, I don’t want to join issues with Shinde. But as far as my reading of the Probation of Offenders’ Act is concerned, I don’t think it is mandatory for the judge to ask for a report.

The fact that he did not ask for a report, I don’t think is an illegality.

Karan Thapar: In considering the issue of probation, should the judge have borne in mind the fact that Sanjay has had a troubled childhood, that he has been a drug addict, has had two broken marriages and yet he has pulled himself together, recreated his life, reformed himself. And now all of that could be at risk if he breaks down in jail.

Soli Sorabjee: Actually, the two main considerations which should regulate judicial discretion in granting probation or not is the nature of the offence and the character of the accused.

For these other factors, I have only asked myself one question: Suppose these factors were present even in the cases of ordinary persons, say Abdul Jalani—I am just naming any person, then we must be very careful that there should be no tilting of these factors one way or the other because Sanjay Dutt is a popular star. Because Sanjay is a very important personality, because his sister is an MP, because they have Dasmunsi and Kapil Sibal speaking out in his favour.

Most important thing is, no signal should go to the people that this is celebrity justice delivery system.

Karan Thapar: And if these factors that I have mentioned have been borne in mind at the time of considering probation, you are worried that the wrong signals would have gone out.

Soli Sorabjee: No, wrong signals would have gone out just because these are factors are there in the case of Sanjay.

Karan Thapar: But just because Sanjay is a celebrity, it is not a reason to treat him the other way either. You seem to be suggesting that scrupulousness may have led to certain unfair treatment because things that could have been considered weren’t considered for all the wrong reasons.

Soli Sorabjee: You have raised a valid point. What I’m trying to say is what is really of importance is, the whole idea of Probation Act is reformation.

Karan Thapar: And here as I pointed out is that the danger that a reformed man may break because he hasn’t been granted benefit under the Probation Act.

Soli Sorabjee: But the whole question is his character in the past.

Karan Thapar: But the character that I’m talking about is that of a reformed man.

Soli Sorabjee: But that past thing that he had a broken marriage and that he was a drug addict and all that, to my mind, is irrelevant. How his behaviour for the last so many months was the thing which is certainly important. And it is a very moot point whether under these circumstances he should or should not have been granted probation.

Karan Thapar: It’s a moot point! In other words it is a questionable and a debatable issue.

Soli Sorabjee: Of course, it is.

Karan Thapar: Would you personally, if you had been the judge, knowing the background of Sanjay, knowing the manner in which he has reformed himself, have granted probation.

Soli Sorabjee: I don’t know how he has reformed himself. I wouldn’t like to hassle an opinion because I knew his father very well and him when TADA was first challenged.

Karan Thapar: Leave that apart. Be a judge, don’t be a friend. Would you have considered giving probate if you were the judge?

Soli Sorabjee: Yes, I would.

Karan Thapar: Now the prosecution have said that they are considering appealing against the fact that the TADA charges were dropped. If they do so, there is no doubt that they have a right to, would it be fair and wise and justified?

Soli Sorabjee: As I said Karan, I don’t know the grounds on which the TADA charges were dropped. Look at it this way: suppose they have been upheld in the case of others and by the same reason and the same evidence, they will interrupt the prosecution.

Karan Thapar: There is an argument that has been made in some newspapers that if Zebunisa Qaidri as well as Mahmood Asar could have been convicted under TADA for either keeping or delivering AK-56 guns, then for Sanjay to be treated differently when the accusation is virtually the same is unfair. Does that in a sense make sense to you?

Soli Sorabjee: I don’t think so, really. The judge must have seen that the circumstances in the two cases were different. One thing is certain that these lawyers have said these were no ordinary weapons but he did not use them.

Karan Thapar: Sanjay’s lawyers are ready to go to the Supreme Court next week, on Monday or Tuesday. What are the chances, given the background of what you have said to me, the court will either reduce the sentence or grant probate?

Soli Sorabjee: The best person to answer that would be Sanjay’s lawyer. I am saying this because I do not know the facts.

Karan Thapar: You just said that had you been the judge you would give him probation.

Soli Sorabjee: I said ‘I’ would. I am not sitting on the Supreme Court.

Karan Thapar: Given that Sanjay has already served sixteen-month imprisonment, I would reckon that somewhere at the end of the next 30 months he would become eligible for remission of his six0year sentence. Are those grounds for the Supreme Court to consider expeditious bail?

Soli Sorabjee: There is no doubt about it that the Supreme Court will consider his bail application expeditiously. And I’m sure that these factors will be taken into account while deciding whether to grant him bail or not, and the various other conditions.

Karan Thapar: So what you are saying to me and I’m repeating because it’s important that you can’t comment on whether the Supreme Court will actually grant probation or whether the SC will reduce the sentence. But you do believe that the Supreme Court will consider and perhaps grant bail expeditiously.

Soli Sorabjee: Oh, yes. Expeditiously and may be, that’s my hunch, that they may take these factors and it may lean in favour of granting him bail. But mind you that media hype could be counterproductive. Sanjay’s friends are not doing him any good. The people are getting put off because of this. That why all this is happening in the case of one person. What happens to others who are rotting in jail?

Karan Thapar: Is there also a danger that what you call media hype might exercise such pressure on Supreme Court judges, that to be scrupulous and ensure that they haven’t in any way wilted, they may actually tilt the other way?

Soli Sorabjee: I think the Supreme Court judges by now are used to media hype, and I think they ignore it. They judge the matter according to the records and according to the provisions of law.

Karan Thapar: So it’s the public opinion that you are saying will get put off by media hype, it won’t really affect the judges.

Soli Sorabjee: I don’t think so. I think the Supreme Court judges don’t get affected by this at least very consciously.

Karan Thapar: Let’s come to the political response to the sentencing of Sanjay Dutt.

Priya Ranjan Dasmunsi has gone on record to express his deep shock and surprise. He says that Sanjay’s fault was unintentional. He adds, “The time has come for the civil society to gauge the parameters for an unintentional fault.”

Should a senior cabinet minister speak out in this way against the court ruling?

Soli Sorabjee: I think it’s inappropriate, especially he being a senior cabinet minister. He may have his own views in the matter. But when he is expressing his views as a cabinet minister, he is actually questioning the correctness of the judgment.

Now the judgment will be up in appeal. And I don’t think it was appropriate.

Karan Thapar: Priya Ranjan Dasmunsi has described Sanjay’s fault as what he calls as an “unintentional fault.” Now I ask you, what is an unintentional fault? Sanjay acquired the gun intentionally. He disposed of the gun intentionally and as you know, ignorance is no defence against the law.

Soli Sorabjee: There is no question of unintentional here. He got them. He knew what he was doing, he knew from whom he has got them. He knew that he had the guns and that’s the reason why he phoned from Mauritius, as you say, to get rid off them.

Karan Thapar: So, not only speaking inappropriately and out-of-tongue, in addition the concept that he has devised of an ‘unintentional fault’ makes no sense.

Soli Sorabjee: Well, I think may be was an off-the-cuff remark. That’s a charitable explanation.

Karan Thapar: Let’s come to a bigger, wider issue. Last week, the courts completed the two major bomb blast cases: the Bombay blasts and the Coimbatore bomb blasts case.

And yet the 1992-93 Bombay riots have been treated very differently. In fact just a few people indicted by the Sri Krishna Commission for those riots have actually been brought to justice.

How do you view this disparity?

Soli Sorabjee: I think it’s scandalous. The recommendations of Justice Sri Krishna report have not yet been duly implemented, not been pursued with the energy that they should. The matters should have come up in the Supreme Court.

At one stage I was there, and I know that the Supreme Court asked the government of Maharashtra what you are doing about it? Then I don’t know what happened. I got off the case, was out off the office. But I think it must be, because it also shatters the people’s confidence in justice.

Karan Thapar: On that particular last point that you have made, do you get the feeling that India responds to those, accused of the bomb blasts, very differently to the way it responds to those accused of riots.

Soli Sorabjee: I won’t say it but it is all about the personalities involved in the Sri Krishna Commission report. I think that’s the reason they don’t want to take action.

Karan Thapar: So it’s politics rather than the differentiation between the two categories of accused?

Soli Sorabjee: Oh yes. Riots also kill people. But bomb blasts affects the whole community.

Karan Thapar: Let me interrupt to tell you why I made that particular point. The vast majority of those accused of bomb blasts particularly in the two cases that I have quoted, were Muslims. The large number of people accused of riots, particularly in the Bombay instance that I have quoted, are Hindus.

Even if this may not be deliberate religious discrimination, will it not appear so to many of those who feel they have been denied justice.

Soli Sorabjee: I don’t think Karan. That’s supportive to circumstances. The question is why you are taking action against those people, against whom action should be taken, on serious offenses? Because they are high political personalities or are there other reasons? I don’t think it’s really the question of Hindu or Muslim as such. I won’t even look at it that way. That’s portentous.

The question is that the two things must not be mixed up. The law must be implemented fully and evenhandedly in both the cases. It was not done in the case of the riots. It’s unfair and as I said, it’s scandalous.

And I think also the Supreme Court, I just read in the paper, have seized off the matter. Mr Yusuf Mushara has done some excellent work, bringing out these facts before the Supreme Court. And I hope the Supreme Court will give preemptory deductions in this matter.

Karan Thapar: What about something else? It’s also reported in the newspapers that of the 60 police officers indicted by the Sri Krishna Commission for their involvement in the riots, as well as the police officers who were identified by the Special Task Force for punishment, only a small number has actually been punished.

The rest have either been ignored or worst still gone scot-free, or in some cases, promoted.

Soli Sorabjee: That’s why I used the term ‘scandalous’. That has to be looked into.

Karan Thapar: But is it just scandalous? Will this sort of uneven treatment, infect this sort of discrimination, if I may use that word, breed disillusionment, disenchantment, and perhaps even dissent in Indian Muslims?

Soli Sorabjee: This is not discrimination by the judiciary. It’s not as if the court has said that those people should be let up. It is a fact that the political executive is not doing anything about it.

Karan Thapar: Absolutely. And the inefficiency deliberate or otherwise of the political executive to act, worst still, perhaps their culpable negligence—will it not breed disillusionment, disenchantment and dissent in Indian Muslims?

They look at their politicians and say, they behave very differently in one case, and very differently when it affects ‘us’.

Soli Sorabjee: But what is ‘they’ here?

Karan Thapar: The politicians and perhaps the police.

Soli Sorabjee: May be. The police could have traversed this all right. But the whole question is, now we should wait and see what happens after the matter is in the Supreme Court.

Karan Thapar: How long will they have to wait? The people have waited perhaps for as much as 16-17 years. Surely patience must be running out for those who are crying out for justice.

Soli Sorabjee: Correct, but now the Supreme Court seized off the matter. I think they should wait and see what the outcome of the Supreme Court directions are and I think that will restore their confidence.

Karan Thapar: So you are saying to those, who are disenchanted and disillusioned, “You have waited for so long. Wait just a little longer. The Supreme Court has taken the matter in its hands. It is bound to produce results.

Soli Sorabjee: Yes, that’s right.

Karan Thapar: It was a pleasure talking to you on Devil’s Advocate.

Soli Sorabjee: Thank you.