Why the Salman Khan bail cannot be compared to Teesta Setalvad's case

Last week saw a tumultuous swing in the fortunes of Bollywood superstar Salman Khan in the hit-and-run case dating back to 2002. Salman was accused of running over five people (of whom one died) sleeping on a footpath in Mumbai in an inebriated state. The Sessions Court in Mumbai convicted him of, among other things, a rather serious charge of culpable homicide not amounting to murder under Section 304-II of the Indian Penal Code (IPC) and sentenced him to five years of rigorous imprisonment.

Within a few hours of this conviction, Salman's counsel filed an appeal before the Bombay High Court asking, as an interim measure, for bail while the appeal remained pending. Initially, the Bombay High court granted bail for a technical reason - Salman had not been handed a detailed judgment by the Sessions Court. Two days later, the High Court suspended the five-year sentence while the appeal remained pending and granted him bail.

 Why the Salman Khan bail cannot be compared to Teesta Setalvads case

AFP image

Reactions have, rather expectedly, been mixed. Notably though, while criticising the favourable treatment meted out to Salman, most people in the mainstream media did not allude to the case of anticipatory bail granted to activist Teesta Setalvad in the cheating and fraud case filed by some residents of Ahmedabad’s Gulbarga Society. Those few who did sought to paint the two with the same brush.

The bland fact, however, is that the Teesta and Salman cases are incomparable and have very few immaterial similarities that obfuscate the real nature of benefit both have got in their respective battles.

Quite frankly, Salman's legal team was extremely well prepared for the worst possible outcome and were ready to file an appeal with utmost immediacy should the verdict go against him. Sure, this robust preparedness isn't usually seen in India. But to blame Salman's power for that would be unfair.

What helped Salman initially was the fact that the Sessions Court could not hand over the detailed judgment copy to him. Some reports indicated it was a power failure. If so, that was good luck.

Sure, it must be stated that the Bombay High Court’s ability to substantively hear Salman's appeal two days after the conviction handed down by the Sessions Court isn't usual, given the severe delays that have plagued our judiciary. Nonetheless, to say it has never happened in judicial history isn't quite true either.

In fact, it would be ideal if the appellate courts hearing such matters would consistently act with such alacrity. At the same time, however, the importance of legal preparedness cannot be stated enough. Time and again, the lax attitudes of defense counsel have often been the reason why convicts and undertrials do not get a vociferous and legally compelling representation of their rights.

Moreover, while an order of the kind given by the Bombay High Court (suspending Salman's sentence and granting bail) may, indeed, have equally compelling legal arguments supporting and opposing the rationale (if the prosecution files an appeal, we may witness these arguments), there is nothing in the order to say that it is a questionable one. [The Bombay HC order can be read here.]

What primarily weighed in the High Court’s mind was the fact that the history of this case saw a difference in opinion among courts on the applicability of Section 304-II of the IPC (culpable homicide - a severe charge under which he has eventually been convicted) as opposed to a lesser charge under Section 304A of IPC (causing death by negligence - the charge that the initial FIR accused him of).

The former more severe charge requires the court to be satisfied that Salman either intended or had the requisite level of knowledge that his act would cause death. Therefore, while the appeal in which one of the main areas of focus was the applicability of the more severe charge remained pending, the High Court saw no reason for Salman to remain in detention.

The benefit that Teesta has got is almost entirely inexplicable. This writer has earlier explained at length why the Supreme Court’s approach has been perplexing. The court went around in circles in what should have been a simple case of whether or not Teesta and her husband Javed Anand should be granted anticipatory bail based on the facts of the case.

The Gujarat HC, in a detailed judgment, concluded that since Teesta and Anand employed “every means to avoid the due process of law", their custodial interrogation was necessary for the Gujarat Police to be able to effectively conclude its investigation.

Within hours of the Gujarat High Court judgment, Teesta's counsel Kapil Sibal intervened in another ongoing matter that an SC bench led by the Chief Justice of India was hearing citing an "extraordinary situation". The two-Judge bench which was going to hear this matter was replaced by another bench.

The official reason was that one of the judges recused himself, but the apex court hasn't yet clarified which judge sought a recusal. Moreover, The Times of India had reported that none of those two judges desired to recuse themselves, thus muddying this aspect even further.

And when the new two-judge Bench finally heard the matter and was ready to pronounce its judgement, it went into a tangent citing quotes by historical figures on the importance of liberty before referring the matter to a three-judge Bench. As this author has stated, the two-Judge bench merely had to take a stand, based on the facts, whether Teesta and Anand should or should not get anticipatory bail. The larger bench has placed the matter for a hearing in mid-July.

At least, in Salman's case, the prosecution has a reasoned order of the High Court which it can challenge on appeal. In Teesta's case, there has been a lot of uncertainty. While Salman's case can best be described as one of unusual judicial efficiency, the judiciary's approach in Teesta's case is really judicial exceptionalism that has witnessed, and continues to witness, several inexplicable turns.

The two are, frankly, not comparable.

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Updated Date: May 14, 2015 14:43:12 IST