Most controversies involving the law have shown some broad conformance to certain broad parameters. Take for instance the Binayak Sen issue. Here the stance of civil society was clear, even in strictly legal terms – the law of the land manifestly did not justify Sen’s prolonged incarceration. Whereas the state’s stance was as legally flimsy as it was morally reprehensible.
Take the second question. The key to this lies in distinguishing between answers and solutions. People tend to conflate the two; more significantly, in doing so they locate both in the present. This oversimplifies the matter. Indeed, the solutions, or the means to provide to victims whatever succour is possible, lie in the present. But in order to frame appropriate solutions, we must first seek the answers to questions still unresolved. And to my mind, these solutions lie in the past. Questions about why Anderson has not been extradited need to be balanced with questions how he left the country in the first place. The truth be told, some attention is now being paid to this question. Former Chief Minister of MP Arjun Singh is reportedly under fire for arranging Anderson’s departure to Delhi in the official state aircraft. But the bigger question seems to have evaded much attention. How is that that Anderson, who had been arrested at Bhopal and released on bail, was able to fly out of India with impunity? The possibility exists that his departure from Bhopal was due to concerns for his own safety. It is on record that Moti Singh, who was then Collector of Bhopal, told Anderson he was not welcome in Bhopal and that permitting him to visit the affected areas was simply out of the question. But regardless of whether this is actually true or not, the question remains why the immigration officials at Delhi airport were not alerted Anderson might try and jump bail, to put it crudely. Indeed it is this fact more than his departure from Bhopal that smacks of collusion in high places.
A bigger instance concerns the role of the judiciary. After the trial court’s judgment came out, both victims and the media were quick to blame the prosecution, investigative agencies, and even the court for failing to adequately punish the accused. But as former Supreme Court Chief Justice A M Ahmadi pointed out, this criticism is misplaced. The court had awarded the accused the maximum sentence for the crimes they had been charged with; it simply did not have the option of imposing punishment of greater magnitude. As is well known, the state had sought to prosecute the accused under S. 304 of the Indian Penal Code, which carries a maximum sentence of ten years for culpable homicide committed without intention but with sufficient knowledge. In Keshub Mahindra v. State of Madhya Pradesh (((1996) 6 SCC 129), the Supreme Court used its powers under Ss. 227 and 482 of the Code of Criminal Procedure 1973, to quash prosecution under S. 304 and other penal provisions. It permitted prosecution under only S. 304A (Causing Death by Negligence), which carries a maximum punishment of only two years’ imprisonment with or without fine.
Justice Ahmadi was himself a member of the bench (though the judgment was delivered by Majmudar, J). In the rediff.com article mentioned earlier, he justified the decision. On the other hand, former Solicitor General Altaf Ahmed, who had represented CBI in that case, disagrees with this. He expressed his disappointment with the 1996 judgment, claiming there was “ample material” presented before the Court was ample to justify a charge of homicide. Clearly then, a deeper analysis of the judgment becomes essential at this point.[Continued in Part II]