No kangaroos in Karnataka

The zeal to prosecute corrupt public officials must be matched with tight adherence to the law

You might have missed it in the din surrounding the recent state assembly elections but the Karnataka High Court’s decision in B S Yeddyurappa v. The Lokayukta of Karnataka and others provides an important counterpoint to the clamour for a Lok Pal.

Mr Yeddyurappa had filed a writ petition challenging the Lokayukta’s filing of corruption charges against him, on account of which he was forced to step down as chief minister of Karnataka. Earlier this week, the Karnataka High Court allowed this petition because in its view, Mr Yeddyurappa “was condemned unheard and there is serious violation of the principles of natural justice..”. Now you can go into the text of the judgement for the details but the jaw drops considering the High Court held that the Lokayukta did not follow one of the most basic legal processes.

The High Court further noted that “there is no material placed on record to establish that the petitioner has shown any official favour to the companies” and “suspicion cannot be a ground to tarnish the image and reputation of a person holding a constitutional post”. The jaw drops further.

There are three issues here: first, that the state ombudsman did not give the accused a chance to defend himself. Second, that it didn’t even produce enough evidence for a prima facie case to be registered against him. Third, by leaking its report to the media “a lot of dust was created in the political circle” causing Mr Yeddyurappa to resign as chief minister.

This is not about whether Mr Yeddyurappa is truly guilty of corruption or not. This is not about whether public opinion believes him to be corrupt or not. This is about whether a quasi-judicial entity entrusted with being an anti-corruption watchdog could produce evidence and follow due process to establish his guilt. This is about whether its zeal was matched by its competence, meticulousness and respect for the principles of natural justice.

Now Justice Santosh Hegde, the high-profile Lokayukta who indicted Mr Yeddyurappa is both a experienced judge and an upright person. If the ombudsman could make such a mistake under him, we can only imagine how bad a less experienced and less upright person can be. All it would need to get rid of public officials would be public opinion, a leaked report and a compliant, complicit or conniving governor. Since people believe that all politicians are corrupt, the media loves to conduct trials and governors are loyal servants of the ruling party in New Delhi, it is not difficult to see that a “strong” Lokayukta, untrammeled by the higher judiciary, will be just another political plaything.

Mr Hegde’s own reaction to the High Court verdict is unfortunate. Claiming that his professional experience gives him the knowledge of what constitutes natural justice and when to give the accused a chance to defend themselves, he said “There were three Chief Ministers, two ministers and 797 officers who were indicted in the report. If I was legally required to issue notices to them, it would have stretched on like the Ayodhya case.”

It is hard not to be disturbed by Mr Hegde’s comments. However learned, experienced and well-meaning a person he is, it cannot be left to an individual to decide when an accused should have the right to defend himself. Also, to argue that cases will take too long to conclude if everyone was allowed to defend themselves takes us into kangaroo territory. Whatever the levels of outrage in the media and public discourse over corruption, you can’t dispense with the principles of natural justice.

This episode should remind us, once again, that there are no short cuts or miracle cures to fighting corruption. The populist demand for the Lok Pal comes with a thinly disguised contempt for constitutional processes and legal niceties. Attractive as it may appear to the outraged, once you destroy the latter, you lose the basis to distinguish the legitimate from the illegitimate, but with powerful inquisitors at large. It is a far better idea for us to insist that watchdogs and prosectors match their zeal with competence, humility and meticulous attention to legal processes.

Justice Sawant’s remarks on Anna Hazare

“When the social power is used irresponsibly, or to subvert the constitutional authority, it is hardly distinguishable from terror.”

The Maharashtra state government instituted a Commission of Inquiry under Justice P B Sawant, in September 2003 to inquire into allegations of corruption and maladministration against several people, among them Anna Hazare. The Commission submitted its report on February 22, 2005 and has been placed online (by Sampath Bulusu on June 8, 2010).

It goes into the minutae of the allegations and a cursory reading suggests how the enormity of red tape might cause people—like Anna Hazare—acting in good faith to commit technical violations of the law. Justice Sawant dismisses most of the allegations against Mr Hazare, but finds his trust acting illegally in at least one matter (see pages 269-271). The message is clear and ironic in the light of Mr Hazare’s demand for more bureaucracy and more laws: government encroachment on the citizen’s economic freedom creates a cesspool that criminalises ordinary citizens, that in turn breeds official corruption.

If we see Mr Hazare as an ordinary person—as this blog does—these transgressions are minor, excusable and should not cause us to doubt his personal integrity. Those who believe in the extraordinariness of Mr Hazare, however, should introspect.

That apart, Justice Sawant’s comments on Mr Hazare’s method of fighting corruption need more attention. Given that the latter is at the forefront of a movement to create an all-powerful super-watchdog, it is germane to look into his previous record.

6. There is no doubt that the participation in elections is not the end-all of the citizen’s role in democracy. The mere fact that the citizens have the power to change the government or to replace their representative by another in the next election, does not prevent them from exercising their other democratic rights during the period between the two elections. It is a mistake to believe that the only duty of the citizens in the democratic governance is to exercise their right to vote. The right to vote is only one of the democratic rights of the citizens. The citizens have a fundamental right to participate in the day to day governance of the society.

The mode and manner such participation may vary and may include all peaceful activities from petitioning to the government to taking out processions to register protests or to demand particular actions. The citizens may also undertake constructive activities, with or without the assistance of the government to improve the conditions and quality of the social life. Both the agitational and the constructive activities have become necessary in the present democratic societies, since the so-called democratic societies have limited democracy and that too only in their political life. Beyond the right to vote and the right to contest in the elections,the political democracy confers no other right. In the absence of the social and economic democracy, even the rights to elect and to get elected remain on paper for a majority of the people. With the enormous social and economic inequalities which are growing everyday, the right to vote itself may be manipulated, while the right to contest elections has become the preserve of the wealthy few. Thus, the equality, which is the basis of democracy, does not exist even in the formal political process.

7. This is because the so-called democracy as has been practised, has made no change to the class-structure of the society. On the other hand,it has deepened and widened the class distinctions. The ruling class is not interested in bringing about the social and economic democracy. On the other hand, since it can survive and thrive only on social and economic inequalities, it is interested in perpetuating them. Hence,the work by the civil organisations aimed at reducing the inequalities and their harsh social consequences, becomes all the more necessary.

The agitational activities have however to be carried on by observing certain norms. Not only have they to be peaceful, but also legal. A care has also to be taken to see that they do not lead to anti-social activities or become extra-constitutional centres of power. Such a development will itself encourage lawlessness and spell out the end of the rule of law. The mode of agitation has further to vary according to its object and the social conditions obtaining at the time. Else,it will not only not achieve its object but will prove counter-productive. It has to be remembered that the agitational activities also constitute a social power, which is as much liable to be abused as the political power. When the social power is used irresponsibly, or to subvert the constitutional authority, it is hardly distinguishable from terror.

8. When instead of the system, the individuals are targeted by the public agitation, several untoward consequences follow. As the present inquiry has revealed, while making the allegations of corruption,the complainant Shri. Hajare relies exclusively on the information supplied to him by his workers or on the contents of the representations made to him by the discontented. The information thus made available may not all be disinterested and may be motivated by various considerations, including personal, political and corrupt. In any case, such information coming from whatever source it may, has to be verified at least by giving an opportunity to the person against whom the complaint is made. This is an elementary precaution which has to be taken before making the individual a target of agitation.

As has been admitted by Shri. Hajare, the persons against whom he receives complaints, are not even intimated by him about them. They have, therefore, no opportunity to reply to the charges in the complaints. Shri. Hajare gave two reasons for dispensing with the said basic requirement viz. that this Andolan has no funds to call for the explanations from the concerned individuals, and secondly, his team of lawyers clears the complaints before the agitation is started. The first reason is both strange and indefensible, while the second is as much unjustified.

If the movement against corruption, which he has started, does not have sufficient funds even for the postal correspondence with the persons concerned, certainly he cannot make the targeted individuals suffer on that account. It is further not his case that even his lawyers give an opportunity to the persons concerned to explain the charges against them before they clear the complaints for agitation.

It must be realised that when persons like Shri. Hajare who have come to be respected by the society on account of their laudable work in other fields, publicly accuse any person for his misdemeanour, the people come to believe it intrinsically, and the person concerned earns a social odium for life-time, even if later he comes to be cleared of the charges. There have been cases where persons have been victimised either by public or private complaints, at the strategic moments in their life and career. The blackmailers, in particular, take advantage of such situation.The adequate precautions, which even otherwise are a must, become all the more necessary in such movements.The social power should not become or allowed to become an engine of oppression of the innocent. [Justice G B Sawant Report pp22-24, emphasis added]

Amartya Sen’s wrong idea of justice

Social justice is not justice, and it is dangerous and wrong to conflate the two

It’s not out yet, but we are at imminent risk of being drenched by a book on the principle of justice written by an celebrated expert on…economics. Now, no one would give too much credence to a book on nuclear physics written by a professor of English literature,if not for the Law of Indian Expertise (LIE). That law says that an Indian who has achieved distinction in one area is immediately considered an expert in all others. If you have a Booker or a Nobel, you will immediately be taken seriously by many people on almost anything…including nuclear physics.

According to the Times of India Amartya Sen’s latest book, “The Idea of Justice”, is “his most ambitious book yet.” When Rashmee Roshan Lall asked him to summarise his key argument, Dr Sen’s response was incomprehensible.

Justice is a complex idea (I was not surprised that it took me 496 pages to discuss it), but it is very important to understand that justice has much to do with everyone being treated fairly. Even though that connection has been well discussed by the leading political philosopher of our time, John Rawls, I have argued that he neglects a couple of important connections. One neglect is the central recognition that a theory of justice has to be deeply concerned with systematic assessment of how to reduce injustice in the world, rather than only with the identification of what a hypothetical “perfectly just society” would look like.

There may be no agreement on the shape of perfect justice (and also perfect justice will hardly be achievable even if people did agree about what would be immaculately just), but we can still have reasoned agreement on many removable cases of manifest injustice, for example, slavery, or subjugation of women, or widespread hunger and deprivation, or the lack of schooling of children, or absence of available and affordable health care. Second, analysis of justice has to pay attention to the lives that people are actually able to lead, rather than exclusively concentrating only on the nature of “just institutions”. In India, as anywhere else, we have to concentrate on removing injustices that are identifiable and that can be remedied. [TOI]

Hasan Suroor’s report in The Hindu is more helpful. It says Dr Sen has argued “that there was no such thing as “perfect” justice; that justice was relative to a situation; and that instead of searching for “ideal” justice, the stress should be on removing the more visible forms of injustice such as subjugation of women, poverty and malnutrition.”

It is unjust to criticise Dr Sen’s book before reading it. But it is not unjust to criticise what he says about its contents.

Going by what Ms Lall and Mr Suroor write, he is engaged in the dubious enterprise of conflating “justice” with “social justice”. This is a dangerous argument: for delivering justice is the basic function of the state, and to do this efficiently, a parsimonious definition of justice is necessary. The simplest definition of justice is the redressal of a violation of rights. On the contrary, Dr Sen’s definition is expansive—covering everything from gender inequality to poverty to malnutrition. The more you ask a justice delivery system to do, the less efficiently it can do it, everything else being the same. Since Dr Sen professes to be concerned with practical delivery of justice, he contradicts his own objective by enlarging the scope of what justice should mean.

Then comes his reported contention that “justice is relative to a situation”, which is slippery and dangerous. Justice is the response to an objective evaluation of a deviation from a normative code—for practical purposes, a written or an unwritten constitution. In a rule-of-law environment, justice cannot be “relative to a situation”, but rather, has to be uniform across situations. If violation of rights is objective, how can the redressal be relative and just at the same time? (It’s like saying that justice should be, as a norm, different for a poor burgler caught stealing from Mukesh Ambani’s house and well-fed burgler caught stealing from mine.)

Dr Sen’s line is dangerous because it threatens to reduce the importance of individual rights and freedom, and supplant them with the discourse of social justice. It is dangerous because the premise of justice being relative befits an environment where the law of the jungle prevails, where the more powerful can make subjective decisions that the less powerful have to accept as justice. In a rule-of-law enviroment, the more powerful might still violate the rights of the less powerful, but it can’t be passed off as “justice”.

Related Post: Dandaniti, Arthashastra and Andre Béteille’s observation on Indian constitutional morality

On trying Kasab

The best prosecution and the best defence

Mohammad Ajmal Amir Iman is a terrorist who was caught red-handed by the police. He is very likely a trained covert operative and is likely to exploit the Indian media and through it, the legal process, to his advantage. In time, a coterie of jihadi apologists might rise to obfuscate his crime. Politicians might use his case as a political football.

Yet, none of these is good enough a reason to deny him proper legal representation and a fair trial. Quite the contrary—this case deserves an exemplary prosecution and an exemplary defence. And should he be found guilty after an exemplary judicial process, he deserves exemplary punishment. (See Salil Tripathi’s piece).

America’s greatest mistake after 9/11 was Guantanamo Bay. India should not make the same mistake.

Update: Ram Jethmalani says lawyers cannot refuse to take the case, and, “a person who thinks that by doing these actions, he is going to heaven he should be denied the chance to go to heaven, he should remain the rest of life in a jail in India.”

Three thoughts for the Republic

On justice, trade for security and ending competitive intolerance

For reflection on Republic Day: No turns in justice; Security lies in trade; on putting an end to competitive intolerance;

Related Links: Three thoughts on Independence Day 2007, 2006, 2005, 2004 & on Republic Day 2007, 2006, 2005