Sunday, August 23, 2015

VENU SUNDARAM - Uphaar and the Curious Case of the Judges Who Wouldn’t Listen

By hearing only the businessmen guilty of the Uphaar fire and letting them off without imprisonment, the Supreme Court upended a basic principle of natural justice

On August 20, a three-judge bench of the Supreme Court led by Justice Anil Dave declined the Central Bureau of Investigation’s plea that it be given 15 minutes to refute arguments made by Ram Jethmalani on behalf of the convicts in the 1997 Uphaar fire tragedy, Sushil and Gopal Ansal. Just a day earlier, the bench— after hearing Jethmalani at length, but not the other side — sprang a surprise by imposing just a fine of Rs. 30 crore each on both brothers, without any word on their further imprisonment. 59 people perished in the fire due to the Ansals’ negligence, most of them children.

The Supreme Court’s August 19 refusal to hear the CBI and the victims of the tragedy on sentencing is a complete denial of natural justice. Both Harish Salve, representing the CBI, and K.T.S. Tulsi, representing the victims, had been waiting in the court room for their opportunity to answer Jethmalani’s contentions, and were taken aback by the sudden decision of the bench to wind up arguments and announce its decision.

The fact that the Supreme Court has not yet uploaded the sentencing judgment of Justice Anil Dave’s bench has led to further suspense as to what reasons the bench could cite in defence of its decision not to impose any sentence of imprisonment on the duo.

It will be a mockery of justice if the judgment cites only Jethmalani’s contentions, and not the submissions of CBI and the victims on the question of sentence. But this is how the judgment will appear to be as both Salve and Tulsi only had the chance to briefly tell the bench—in response to a query—that they wanted the sentence of imprisonment to be maximum, that is, two years.

Denial of natural justice
The bench has obviously rejected their plea, but its decision, without hearing the reasons for their plea, is vulnerable to challenge—both in the review and curative petitions—on the ground of denial of natural justice. In the review petition, the petitioner has to cite an error apparent on the face of the record. But the fact that review petitions are heard and decided in chambers by the same bench which heard the principal matter means the CBI and the Uphaar victims may not succeed at that stage.

In the curative petition, however, the two judges who heard the principal matter, Justices Kurian Joseph and Adarsh Kumar Goel, and the three senior-most judges of the Supreme Court –Chief Justice H.L. Dattu, Justice T.S. Thakur and Justice Anil Dave (who also led the bench on August 19) are likely to sit on the bench. The ground of denial of natural justice, if raised by the curative petitioner, has a greater chance of ensuring an open court hearing of the matter — in contrast to the usual practice of disposal of the petition in chambers by circulation among the judges.

This is because the Supreme Court in 2002 specifically laid down the denial of natural justice as one of the two reasons for entertaining a curative petition. The other ground is an allegation of bias on the part of any of the judges who decided the principal matter.
It is of interest to note that one of the judges who decided the Uphaar sentencing case on August 19, Justice Kurian Joseph, had, while hearing Yakub Memon’s petition against his death warrant, contended that the curative bench need not confine itself with just these two grounds, but also consider a fresh ground not raised earlier. 

He also questioned the Supreme Court’s rule that excluded the judges who heard the review petition from hearing the curative petition, if they were not part of the bench that delivered the main judgment. The composition of the curative bench will, however, change if the respondents delay the filing of the petition, and in the meantime, some of those judges who might sit on the Bench, retire.

The split judgment
The Justice Anil Dave-led bench’s decision is all the more curioser because the three judge bench was constituted as a result of the split between two judges who heard the case earlier on the question of sentence. The split judgment of the two judges – Justices T.S. Thakur and Gyan Sudha Misra –was delivered on March 5, 2014. Both Justice Thakur and Justice Gyan Sudha Misra found the Ansals guilty of criminal negligence, but disagreed on sentencing. Justice Thakur opined that the sentence of one year’s imprisonment imposed by the High Court need not be enhanced.

Justice Gyan Sudha Misra, however, was unconvinced by the High Court’s reasoning justifying the reduction of maximum sentence, of two years, awarded by the trial court, to one year; therefore, she enhanced the sentence to two years, while holding that the enhanced imprisonment could be substituted by a fine of Rs. 50 crore each.

Justice Thakur, however, found it unnecessary to disturb the sentence imposed by the High Court. Here, Justice Thakur had contradicted himself. On the one hand, he cited the Supreme Court’s verdict in State of Madhya Pradesh vs Ghanshyam Singh to support the proposition that a sentence ought not to be reduced merely on account of long pendency of the matter. However, he subsequently supported the contention that delay has often been made a basis for the award of a reduced sentence.

Despite Justice Gyan Sudha Misra’s finding that the High Court had not given any reasons for reducing the maximum sentence awarded by the trial court, Justice Thakur concluded that ‘there is no reason why in the case at hand, the delayed conclusion of the proceedings should not have been taken by the High Court as a ground for reduced sentence of one year”.

Ansals benefit from delaying tactics
Justice Thakur’s endorsement of delay as a mitigating factor in sentencing is questionable because the facts clearly suggest that the convicts were responsible for seeking repeated adjournments, and thus delaying the proceedings themselves.

The Ansals’ appeal case was first listed in the Supreme Court on October 29, 2010 before a two judge bench comprising Justices Thakur and Justice V.S. Sirpurkar, (who has since retired) and got adjourned. On August 24, 2011, it was listed before the bench of the then Chief Justice S.H. Kapadia and Justice Thakur, and again got adjourned on the request of Ram Jethmalani. On November 9, 2011, it was listed before Justice Thakur and Justice Dipak Misra.

The matter was first listed before the Thakur-Gyan Sudha Misra bench only on February 8, 2012, and Ram Jethmalani began his arguments before this bench on February 16 that year. He argued for nearly 25 days, while the counsel representing the CBI and the victims together argued for about 11 days. On April 17, 2013, the arguments were concluded and the judgment reserved. But the bench took almost a year to deliver its March 5, 2014 judgment in which it upheld the conviction of Ansal brothers but split on sentencing. The list of dates of hearing, available on the court’s website, shows that frequent and prolonged adjournments took place before and during the hearing of the case, on the request of the arguing counsel.

The victims say they did not stand to benefit from the delay. “Why should the accused be given the double benefits of first a prolonged trial as it is a well-known fact that it is they who seek adjournments on one pretext or the other, and then a lighter sentence on the grounds of delay”, they asked in a press release in June this year.

Apart from treating the delays as a mitigating factor for the Ansal brothers, Justice Thakur gave two other reasons for not enhancing their sentence. He observed that sending someone to jail for one year when the maximum sentence prescribed for the offence is only to two years cannot be considered inadequate. He also cited the fact that Harish Salve, who represented the CBI, had not argued before the bench that the High Court had prescribed an inadequate sentence for the Ansals. “This is in contrast to the grounds urged in the memo of appeal by the CBI, where the inadequacy of sentence was also assailed. In the absence of any attempt, leave alone a serious one by the State acting through CBI to question the correctness of the view taken by the High Court on the quantum of sentence, we would consider the ground taken in the memo of appeal to have been abandoned at the Bar”, Justice Thakur wrote in his judgment.

Indefensible
In the light of the arguments made by both these judges, the Justice Anil Dave bench’s decision to impose no sentence of imprisonment at all on the Ansals appears completely indefensible. There is one more factor which makes its decision even more vulnerable. The Supreme Court often invokes the theory of collective conscience to justify the imposition of the death sentence, especially if the offence committed by the accused is heinous. The basis for invoking this theory has been questioned by observers.

In an interesting coincidence, Justice Dipak Misra recently invoked this very same theory to justify enhanced sentence of imprisonment, in an abetment to suicide case, even though the facts of this case do not warrant it. There is reason to believe he might have done so in order to offer a belated justification for his decision to dismiss Yakub Memon’s plea against his death warrant on July 30.

However, the Justice Anil Dave-led Bench’s decision in the Uphaar case raises the question of whether the Supreme Court uses the theory of collective conscience selectively: while Memon had to die because of the theory of collective conscience which could have been invoked to justify his death sentence, the rich and powerful Ansals were let off the hook—even though the collective conscience of society might well have wished them to be behind bars.