Did Salman Khan’s Superstar Lawyers Unlock Judicial Generosity?

Salman’s bail and suspension of sentence raise disturbing questions.

#SalmanBailorJail, even if it features among the top trends on Twitter in India, wouldn’t be the best question to start with. This is because the events of May 6 took the wind out of the sails of this hysterical endeavour of speculation.

Why? Because the alacrity with which Justice Thipsay agreed to hear Salman Khan’s plea on grounds of urgency. True, there was no illegality – explicit or implicit, on the judge’s part because the rules of the Bombay High Court do permit something called “production.” Meaning – the court has the discretion to hear a case – be it about evictions, or a convict sentenced and staring at jail, if it is of the opinion that declining a hearing at super-short notice would cause irreparable harm to a person’s fundamental rights.

Speedy Breather

But, does it matter that for Salman it took roughly three hours and forty minutes to go from being held guilty to being given a breather? Is it pertinent to ask, or probe, if it was an ordinary litigant, without the means to engage a superstar lawyer as Harish Salve, would he have bestowed with a similarly speedy course of action?

Any attempt to arrive at a definitive answer would be speculative at best and, at worst, might well invite charges of criminal contempt. But it is a matter of fact that every litigant, even if on the verge of losing the roof over his head, or his liberty, does not benefit from such indulgence.

However, this question can be an indicator for questioning if Salman should have been granted bail, and spared the privations of spending time in a prison, even if it was for a night or two.

‘Bail Not Jail’ Clamour

Contrary to the general, uninformed clamour which passes as “public discourse” these days, “bail not jail” is not a dictum cast in stone. As the Supreme Court held in Sanjay Chandra v CBI (2011) – one of the 2G scam cases – it must be seen whether a person could manipulate the course of justice if released on bail.

Also, a distinction has to be drawn between bail pending trial, and bail pending appeal. That Salman and his defence have tried every trick in the book to hoodwink and stonewall justice cannot be disputed, except by the devoted or the deluded. Then what could have influenced the judge’s decision? One can know, and then criticise, only after the order is made available.

The suspension of the sentence, which means that Salman won’t be jailed till the high court disposes of his appeal, also needs scrutiny. Again, it is wrong to presume that if the sentence is less than seven years (Salman got five), such suspension is an entitlement. In fact, in Shiv Kumar v Delhi (2008) the Supreme Court held that the power to suspend sentence must be used only in exceptional cases, where not doing so would lead to injustice and irreversible consequences. The convict’s conduct, and not merely the fact that he was out on bail during trial, would be a critical determining factor.

It isn’t known if the prosecution would appeal against the May 8 order, but if they do, they have the odds on their side.

(Saurav Datta teaches media law and policy in Mumbai and Pune. On twitter: @SauravDatta29)