The Suhel Seth column: Are we still a democracy?

I am no lawyer but I do have an understanding of India's Constitution and the spirit in which it was conceived. My understanding is we are all free citizens until we break the laws, are hauled up before a court of law and if found guilty, sent out to serve the requisite punishment. There is no place for either media trials or for that matter a judiciary which believe it has the powers to send people to jail without a conviction. It is a travesty of our justice system that almost 60% of those languishing in jail our under-trials. So what if, after a long incarceration, they are found to be innocent. Will the State compensate them? Or give back their freedom or restore the lives of the relatives of these very people.

In India today, there are two such cases: I mention them only because they are in the public eye and I mention them because the media as well as the judiciary has publicly meted out these sentences and every Indian is aware of them.

I am holding no brief (or candle) for either Tarun Tejpal or for that matter Subrata Roy. If they are guilty they need to rot in jail but to deny them bail is violative of the very principles that the Constitution of India was founded on. We cannot have judges or the media (both of who play a critical role in maintaining the sanity of India) to be laws unto themselves. I am in complete disagreement of the justice meted out by a Goa Court to Tarun Tejpal or for that matter by the Supreme Court to Subrata Roy. If an actor, Sanjay Dutt is allowed on permanent parole to look after an ailing wife, why is Tarun Tejpal not allowed to meet his dying mother? I know I will have an army of feminists attack me for this, but the fact is Sanjay Dutt was tried and convicted. Tarun Tejpal has been jailed, convicted and will probably be tried. Is this fair? Most importantly, is it right?

Subrata Roy's case is even more peculiar. He is being tried in a civil matter and is now in jail because the judges want a proposal. The fact is that Subrata Roy did cock a snook at the Courts and for that he must be punished but then to send a man to jail indefinitely without allowing him bail is once against the principles of freedom and liberty that are every Indian's rights. I am not for a moment suggesting that either Tarun or Subrata are innocent. But then this country's law has taught me to believe we are all innocent until proven guilty. That is what India has taught me. So why should any Court of law tinker with that belief or perception?

This country has been saved time and again by the Supreme Court and the judiciary in general which is why they bear a greater responsibility in ensuring we feel protected not just as human beings but as citizens of this nation. When I step out of my home I know there is rule of law that the Supreme Court will guarantee, which is why I cannot understand what's going on with the legal framework today. Judges need to hear judicial arguments and not sway with popular opinion. In any event, we as a nation love to see other people in trouble and if that person is rich or powerful, then there's more grist to the mill. But then is it fair?

Amartya Sen in his wonderful book 'The Idea of Justice' opines that there is an inherent difference between neeti and nyaya. One is about the process and the other is about justice. But then he goes on to explain, that justice is ultimately all about fairness. In the light of both of the above cases, I do not believe there has been any fairness. There has just been a process that has been followed. This is what mobocracy is all about and this is what we often deem to be kangaroo justice. We all need to pause. People like me who go on television and pronounce judgment on people or those who have the faith of every Indian sitting in court-rooms and dispensing justice as if we were living in medieval times. We need to question the fairness of all we do. In that, we shall find the answers to a more robust and free India.