Bombay High Court's Justice Abhay Thipsay struck the perfect note of legality and justice on Friday while admitting actor Salman Khan’s appeal against the five-year jail term he had been awarded two days earlier in a drunk driving incident in 2002 that left one man dead. “We cannot take pleasure in sending people to jail,” Thipsay said, releasing the actor on bail and suspending his sentence.

The tone was most appropriate. Despite the outrage against Khan’s actions, and the outrageous defences mounted in his favour by some of his well-wishers, it is essential for justice to be pristine, shorn of any vindictiveness.

Yet, Thipsay’s order has set off a heated public debate. On the one hand, many claim that his leniency is yet another example of judicial benevolence towards the rich and powerful. They have cited the cases of a staggering number of undertrials languishing in prison, often on trumped up charges, who are too poor to engage legal heavyweights who can smooth their passage to liberty. But others have quoted the Supreme Court’s principle of “bail is the rule, and jail is the exception”. They argue that Khan is equally entitled to his fundamental right to liberty and presumption of innocence.

Considerable merit

Undeniably, there is considerable merit and truth in both sets of arguments. But it is important to take note of a number of essential distinctions, which seem to have been drowned amid the torrent of outrage.

The first is the essential difference between pre-trial and post-conviction bail for every criminal case. A Constitution Bench of the Supreme Court categorically stated this in the seminal case of Gurbaksh Singh Sibbia in 1980, which stands as the binding precedent. The court held that while every person shall be presumed innocent until held guilty by a court of law, once there is a conviction, this presumption is rendered invalid. A person has the right to appeal, but that doesn’t earn him a default right to bail while the case is pending.

In fact, the court reiterated the fundamental principles to guide judicial discretion in granting or refusing bail, first laid down in 1978 by Justice Krishna Iyer, one of the most renowned champions of civil liberties. The court should not treat the bail hearing as the occasion to decide guilt or otherwise, he said. It should only consider the applicant’s antecedents, the totality of the circumstances, and consider whether if released on bail, he could manipulate the prosecution, tamper with evidence, or influence witnesses, Justice Iyer had stated.

How does this apply in Salman Khan’s case? There is no fresh investigation to be done; the lone witness, Constable Ravindra Patil, on whose inculpatory testimony the Sessions Court relied the most, is no more; there is also a judgement of conviction. During the trial, his defence tried to claim that it was his driver Ashok Singh who was at the wheel when their vehicle jumped off the road, ramming four people sleeping on the steps of a bakery. Only the magnanimity of the judge saved Singh from a perjury charge. The painfully long trajectory of the case shows that Khan, aided to no small extent by a battery of the best legal minds, left no stone unturned in adopting dilatory tactics and evading the process of justice. Now that he has been convicted, and with a huge degree of public opinion against him, can it be presumed that he will desist from such tactics?

Not a right

The second aspect is that of the sentence being suspended. It is true that if the sentence is of seven years or less (Khan was given five), courts are usually in favour of not sending convicts to jail. But there is no legal provision or precedent elevating this as a right. In fact, while interpreting Section 389 of the Code of Criminal Procedure (which grants an appellate court the discretion to suspend a sentence), the Supreme Court in 2004 held that a court suspending a sentence must record the reasons in writing, and not grant bail as a matter of routine. In 2008, the court again stated that this judicial discretion must be used only in the most exceptional of circumstances.

One could possibly argue that in a high-profile case of this nature, Khan needs to stay out of jail in order to instruct his legal team and prepare his defence, which is his fundamental right. However, a similar plea by actor Sanjay Dutt, whose case was far more serious, was turned down by the Supreme Court in 2009.

As things stand, Khan will be at liberty until the High Court decides his appeal, which is slated to be heard from June 15. It would be speculative to pillory him by presuming he will use Thipsay’s order to secure undue advantages. What seems pertinent, however, is a 2003 ruling in which the apex court cited Lord Camden’s statement in a 1680 case: "The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable.”