You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.
- Clarence Darrow
Kanimozhi was denied bail last week. General consensus seems to be that Judge Saini has done the right thing by denying her bail. “She deserves to be in prison”, most say, “the rich and wealthy never go to jail; they should not be allowed to get away”.
Only problem - the judgment was not the sentencing after trial – it was a decision on granting bail.
Bail is the incentive that the court seeks in order to ensure that the accused will come back to court and stand for trial. The accused is let go with a condition that he/she will come back to face trial once the prosecution has gathered evidence and built a case against the accused.
Now there are circumstances where it may be believed that the accused is likely to skip bail (abscond), believed to be a danger to public (commit another crime while he is out on bail), tamper witness (intimidate them) etc., due to which bail may be denied. But unless there is a reason to believe that such a circumstance exists, bail should be granted to the accused. The prosecution should have a convincing argument that granting bail will undermine their case.
(In this particular case, prosecution did not feel that such circumstances exist - maybe because they didn't think she could tamper witness any more than Karunanidhi can)
One may feel that Kanimozhi deserves to rot in prison, but it shouldn't be before she is convicted. We cannot decide that she is guilty before we have gathered evidence and built a case. What is denied to her will be denied to us.
Bail is not designed to be punitive and we should not punish before anyone is convicted of a crime. The accused should not be penalized for the time it is taking the state apparatus to build the case against the accused (unless there is a strong reason to believe that letting the accused to be free will stymie the delivery of justice).
Just because there are countless other cases where the guilty have not been brought to justice, it does not mean that Kanimozhi should be punished before her case goes to trial. That is just misdirected anger and not justice.
I have not read the full transcript of what the judge has said, but according to most news sources, the essence of the ruling was:
The persons involved in such offenses... do not deserve any indulgence; and any sympathy to them not only being entirely misplaced but also against the larger interest of the society [because] such offenses are preceded by cool, calculated and deliberate design with an eye on personal gains and in fact not all such offenses come to the surface.
Here are a few things that Judge Saini has decided:
- Because the crime Kanimozhi is accused of is a serious offense, the accused does not deserve sympathy
- Because the crime she is being accused of needs careful planning, the accused does not deserve sympathy
- Because crimes like these do not usually come to court, the accused does not deserve sympathy
- Because a strong message needs to be sent to... criminals [that] it does not pay to be on the wrong side of the law, the accused does not deserve sympathy
Key word here being, "accused". The judge is condemning the accused before she got her fair trial. I would have agreed with the judge if this was said at the time of her sentencing.
What's even more dangerous is that this sets a precedent. I believe the judge's decision itself has been based on a previous judgment - Mukesh Jain v CBI. From now on, any Judge arbitrating on a corruption case can deny bail to anyone because the crime is a serious one.
In the public's eye, Kanimozhi is guilty, but people have the luxury of sitting on the couch and passing judgment. People do not require evidence. We do not need hard facts. Public decides based on emotions. It is only understandable – we are dejected and impatient with the state of affairs. We are frustrated that justice is both delayed and denied especially when the rich and powerful are involved. The system has failed us so many times that we are baying for blood now.
But judiciary cannot be playing for the crowds! Judges cannot get emotional and make statements instead of passing judgment. The primary objective is to arbitrate, not make a point or an example of someone. What we need is justice, not a witch-hunt.
Judicial activism gets especially dangerous if judges are unable to rise above their bias, prejudice, or popular sentiment.
