Tuesday, March 31, 2009

Sanjay Dutt and Navjot Singh Sidhu: Flaws in Supreme Court's reasoning

Supreme Court's judgment in Sanjay Dutt's case, denying his plea for suspension of his conviction under the Arms Act is based on the subtle distinction which the Court tried to make between his case and that of Navjot Singh Sidhu. The Court suggested that in Sidhu's case, his conviction was suspended because he was a sitting Member of Parliament when he was convicted. He resigned, and sought election on moral grounds, even though he could have continued, filed an appeal within three months, and avoided disqualification under the S.8(4) of RPA. Secondly, the trial court had acquitted him, while the High Court had reversed the acquittal. These two factors are not present in Sanjay Dutt's case, so the Supreme court has suggested.

When I read the Navjot Singh Sidhu judgment of the Supreme Court, I was dismayed at the poor reasoning adopted by the Supreme court. I was even more dismayed to find that the Supreme Court relied on this very poor reasoning to set it apart from Sanjay Dutt's petition, though the Supreme Court might have been correct in refusing to suspend Sanjay Dutt's conviction on merits.

Let me explain some of the obvious flaws in the Sidhu judgment.

1. The Court: Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. The courts should exercise the power to stay conviction only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.

While this is a valid criterion, it cannot be said to make the Sidhu case unique. Sanjay Dutt too could have easily fulfilled this requirement.

2. The Court: It was not necessary for the appellant (Sidhu) to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. A person who resigns from the Parliament or the Assembly and seeks a re-election, if elected, will have greater moral authority to represent the constituency.

Read the above with what the Court said subsequently in the same judgment:

The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.

Inconsistency apart, if this is the yardstick, most convicted criminals in legislatures only need to resign from their seats,and seek reelection (which they are likely to win, considering their clout)in order for the Courts to suspend conviction.

3. Having considered the Sidhu's case on the ground that he sought reelection, the Court went on to say this, further heightening the inconsistency in its judgment:

We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called in

4.The Court was also making a judgment on the quality of the crime: a conviction for the offence of corruption is worse than one for any other offence. Read this:

When a conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here.

5. The Supreme Court gave relief to Sidhu also because he was not a Member of Parliament when he committed the offence, for which he was convicted; therefore, he could not have misused his position as an MP to commit the crime. But the Court overlooked the fact that he was then a celebrity, and being a celebrity in society carries with it certain amount of influence, normally denied to non-celebrities. Even if an accused does not happen to be a public servant or a celebrity at the time of commission of crime, how could it be a mitigating factor, when it comes to disqualification? The law does not envisage such a distinction between convicts.

It is surprising why the CBI's counsel did not seek a reconsideration of the Supreme Court's judgment in the Sidhu's case by a larger Bench, even though Sanjay Dutt's counsel relied on it to seek suspension of his conviction.
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