October 30, 2000


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Ashok Mitra

Judiciary to the rescue?

The preliminary judicial verdict is not the end of it, there are other rungs of the judicial hierarchy to be negotiated, likely to be followed by processes within the administrative hierarchy. The final outcome therefore remains altogether uncertain. Even so, the conviction and sentencing of the former prime minister and his Cabinet colleague have been, nearly and truly, an immense emotional catharsis for this hapless nation. For the first time, a bunch of political bigwigs have been found guilty of including in corrupt practices while in office, and the trial judge has not minced words to condemn them in outspoken terms.

India, according to international statistics, is reckoned to be among the ten most corrupt countries of the world. Such corruption, as about everybody is now aware, has its genesis at the top, from where it spreads throughout the system. The cynicism the sequence of events breeds has an eerie quality: since the highest in land is involved, corruption, it is generally assumed, is the nation's inexorable destiny.

Ajit Bharihoke has, by his judgment, tried to blunt the impact of this fatalism. Maybe, after the labyrinth of various administrative and other procedures has been traversed, the punishment ordained for the former prime minister would not be acted upon, thus providing to many further evidence of the iniquitousness of the Indian legal system notwithstanding the presence of Article 14 in the Constitution. But the very fact that the high-ups concerned have been, at least in the first instance, dealt with so severely mark a milestone in the annals of contemporary India. On that ground alone, the judge deserves the nation's collective gratitude.

Irrespective of the denouement of the case, two issues of jurisprudence arising out of it will still continue to grip public attention. Because of a ruling handed down by the Supreme Court, the alleged bribe-receivers in the Jharkhand Mukti Morcha Bribery Case have remained beyond the pale of the judicial process. The members of Parliament who reportedly received the bribe money dispensed by the former prime minister and his Cabinet colleague have escaped prosecution on account of the ruling: What transpires within the precincts of Parliament, the Supreme Court has implied, is outside the ambit of the judiciary; the presiding officers in Parliament have the exclusive jurisdiction on the matter.

Why should this be so? Bribe-giving and bribe-taking are a composite activity; both should be regarded as criminal pursuits as per the provisions of the Prevention of Corruption Act. If a terminology in vogue in economic science is invoked as analogy, the act of bribe-giving and that of bribe-taking are joint products, the existence of one automatically implies the existence of the other. It, therefore, appears to involve some asymmetry that while the former prime minister and his Cabinet colleague would be packed off to prison, the bribe-takers would escape unscathed.

Ajit Bharihoke evidently saw the absurdity of this situation. In the face of the Supreme Court ruling, he was however helpless. He has nonetheless instructed the Central Bureau of Investigation to liaise with the income-tax authorities so as to ensure that the MPs under the cloud of suspicion could be prosecuted for having income disproportionate to their station in life. This route, it is much to be hoped, would succeed in bringing the alleged bribe-takers to book.

But cannot the Supreme Court be appealed to review the ruling itself? The sovereignty of Parliament must not of course be breached under any circumstances. The fact though remains that the conspiracy of the offer of a bribe and, simultaneously, the reported acceptance of it took place outside the premises of Parliament. The bribe-receivers hence deserve to be treated on the same footing as the bribe-offers. The accent in judicial consideration should not be on the nexus between bribe-taking and the switching of votes in the no-confidence motion against the government on the floor of Lok Sabha, but on the participation of both sides in the act of bribery. Should the Supreme Court be sympathetic to this line of reasoning, a modulation of its ruling would be the logical consequence. That would be a blow for natural justice.

The other issue relates to some of the seeming absurdities which feature legislation pertaining to the Special Protection Group, the top-notch body set up to protect the life and limbs of a select number of very important citizens of the country. The Special Protection Group is required by law to offer highest category security to the present prime minister as well as his predecessors-and their families. By virtue of this legal provision, the former prime minister, had he been denied bail pending appeal to the superior courts, and immediately packed off to Tihar Jail would have continued to receive full SPG security even in prison. As the law now stands, assuming that his appeals to superior judiciary are negatived so that he would have no alternative but to serve the prison term, he would still be accorded SPG protection while undergoing sentence of hard labour. This, to say the least, is ludicrous. For let us take the existing provision of the law to its logical conclusion. Suppose a former prime minister has been found guilty of murder and sentenced to death by hanging, he would continue to enjoy SPG security until his corpse drops off from the gallows.

Hard datum is hard datum. Thanks to the manner things have regressed over the past three decades, the country is infested by rogues and crooks at high places. Some of these specimens, because of the offices they occupied in the past and some of them occupy at this very moment -- enjoy full-blown SPG security. This particular provision in the SPG legislation enabling this kind of outrage should be scrapped immediately. For instance, a simple amendment could specify that any person convicted on account of a criminal offence, who had hitherto been accord SPG protection, must cease to enjoy this privilege the moment he is convicted. In case the present administrators are chary to approve of such an amendment, the suspicion is bound to grow that they are reluctant to remove an insurance cover for themselves. Were the government to persist in stonewalling the proposal, there ought to be a case for moving a public interest litigation before the Supreme Court.

In the final analysis, therefore, it is the judiciary which emerges as the custodian of the liberal democracy our Constitution has aspired India to be. There is here an echo of the aftermath of the patent irregularity the state governments of Karnataka and Tamil Nadu, with the apparent connivance of the Union Government have indulged in, in the Veerappan-Rajkumar episode. The supposed enforcers of law and order have ceased to fulfill, in the proper manner, the duties and obligations the Constitution has delegated to them; the Supreme Court had to intervene in this situation.

The prime motor force of proliferating corruption in the country is the claque of politicians at the helm of administration who are devoid of both conscience and morality. The inevitable outcome is the sinking of the nation into a morass with every day. The dilemma voiced in St Matthew suddenly seems to be of acutest relevance: How shall the earth be salted when the salt itself has lost its savour? The highest judiciary in the land has the awesome responsibility of convincing the citizenry that all is not yet lost.

Ashok Mitra

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