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Monday, August 15, 2022

An Inequitable Justice

Uphaar verdict reinforces a dispiriting message: scales of justice tilt towards well-heeled

Written by Gopal Sankaranarayanan |
Updated: September 3, 2015 12:15:36 am
Uphaar tragedy, Supreme Court, Ansal brothers, Neelam Krishnamurthy, Uphaar cinema fire, Uphaar fire, Uphaar Ansal brothers, iecolumnist, Gopal Sankaranarayanan, The Indian Express Uphaar Cinema

In an unprecedented ruling, a Supreme Court bench showed undue sympathy to the infamous Ansal duo regarding their criminal culpability for the Uphaar tragedy that claimed 59 lives in 1997.

Of course, for an incident that has the might of Delhi’s pre-eminent real estate developers ranged against the families of the average movie-goer, little has been hidden from public view. Tales of the owners’ avarice and apathy have been recorded and catalogued over these last two decades, the brave Neelam Krishnamurthy’s fight for justice yielded yet another dimension to the David versus Goliath struggle, and pre-eminent lawyer Harish Salve’s descent into the trenches to argue pro bono for the prosecution brought greater attention still.

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Yet, for a case so well-detailed and apparently thoroughly worn through, the recent order reveals an ignorance of SC practice and procedure that beggars belief.

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The trial in the case took 10 years and finally resulted in the conviction of, among others, Sushil and Gopal Ansal as well as one H.S. Panwar, the divisional fire officer who gave no-objection certificates without inspecting the theatre. Two years of rigorous imprisonment under Section 304A of the IPC were awarded to all three. When they appealed to the high court, their convictions were sustained, but their sentences were reduced to a year each. Emboldened by this, the three approached the SC and were granted bail pending the outcome of the case. The dismayed victims’ association also approached the apex court, demanding the enhancement of the sentence.

When these various appeals were taken up by a bench of Justices T.S. Thakur and Gyan Sudha Mishra, their verdict on the culpability of the three was unanimous. Guilty, they pronounced, and both judges dismissed the appeals by the accused on conviction and sentence. However, and here’s the rub, in the victims’ appeal, while Justice Thakur declined to enhance the high court sentence, Justice Mishra accepted the plea and recommended a further year in prison, which could be set-off against a fine of Rs 50 crore to be paid by each brother. So, as any layman could tell you, the enhancement of sentence remained unresolved. It was this, and this alone, that was referred to a bench of
three judges. On the high court’s award of one year’s rigorous imprisonment, there was no doubt.

Once arguments concluded this month, that bench of three judges decided that they would agree with Justice Mishra to enhance the sentence of the Ansals to two years, but in lieu of the entire period, they could pay Rs 30 crore each.

But the bench seems to have overlooked a fundamental point: they were not called upon to decide on the first year’s sentence at all. Both Justices Thakur and Mishra maintained that the one-year sentence would stand. It was only on the second year that the difference arose. This order, for which reasons are awaited, seems to be wholly without jurisdiction.

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What about Panwar, the fire officer? Both Justices Thakur and Mishra had agreed on his conviction and his one-year sentence with nary a dissenting word. Yet, the three-judge bench has weighed in on Panwar and allowed his sentence to be substituted by a payment of Rs 10 lakh. This makes matters worse, as there was not even a semblance of a difference of opinion. In effect, the SC has sat in appeal against itself, rendering this order a nullity as well.

In addition, this trend of allowing the well-heeled (or the well-sponsored) to set off their prison sentences against substantial penalties ought not to be encouraged. At a time when access to justice in the true sense is still a distant hope for many of poor and disenfranchised citizens, this inequitable option would only lead to greater disgruntlement and lends credence to the view that the scales of justice are not so evenly balanced.

The rule of law is a fundamental underpinning of the Indian state. It must be observed by all — patrician and plebeian alike. Any departure from it, especially by the very institution that is its custodian, would only be a harbinger of doom.

The writer is advocate, Supreme Court

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First published on: 03-09-2015 at 12:15:33 am
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