Equality before the law is a myth, except for the politically ambitious
A person accused of a crime, when acquitted, should, under normal circumstances, feel relieved and absolved of all taints. But we live in abnormal times where the person accused of committing a crime can be apprehended on mere suspicion, and the trial drag on for decades, and all this while the incarcerated is condemned to live in ‘judicial’ custody. The long years spent in detention often are more than the maximum number of years that could have been imposed as punishment.
There are many distressing issues. While convicted gangster-politicians like Mukhtar Ansari/Atiq Ahmed, Shahabuddin and their Hindu counterparts have no difficulty running their empires from behind the bars, it is the other offenders who are left to suffer slow deaths with no hope of release on even medical bail.
Godmen and gurus flout manmade laws with impunity and even when faced with serious charges of contempt of the Supreme Court keep thumbing their noses. Baba Ramdev’s apology is just one such case. Gurmeet Ram Rahim Singh’s political heavy weight facilitates his frequent release on furloughs, paroles, bail on medical grounds, etc. What is ironic is that the same politicians who rant about getting rid of colonial vestiges like the IPC, are happy to retain the provisions of CrPC and the jail manual that can mitigate the discomfort of the jailhouse for their protégés. Remissions for ‘good conduct’ certified by authorities concerned is again a loophole selectively used in a partisan manner.
We are told repeatedly that some white-collar crimes are more heinous than rape and murder of infants, burning children who dare to marry intercaste or running over protesting farmers to break the morale of peaceful protestors. The definition of rarest of rare crimes that shock the conscience of the community has changed beyond comprehension. Money laundering and defrauding banks are no doubt serious offences, but to use this red flag to airbrush out of sight and legal oversight makes no sense at all. The investigative agencies and departments charged with enforcement abuse ill-drafted laws to run rampant ravaging the rule of law at the command of their masters.
It must be made absolutely clear that the rot had started before the Modi Wave swept all Opposition out of the way. The Preventive Detention Act was routinely opposed by the Congress governments before the Emergency. The Defence of India Rules were there years before the MISA. It was the mild-mannered soft-spoken Dr Manmohan Singh who had declared war on the Naxalite and Maoists and labelled them as the greatest threat to India’s security.
Encounters real and fake mushroomed as ‘Improvised Extra Judicial Executions’. Draconian laws passed by all governments have turned jurisprudence upside down. Saddest development is the betrayal by some politically ambitious judges to guard the constitutionally guaranteed liberties and rights. National and public interest as defined by those in power has shaken peoples’ belief that crimes violating their life and liberty will not go unpunished. This is what has given rise to vigilantes, lynchings and feudal casteist kangaroo courts harking back to the dark ages.
Manmade laws versus Laws of God revealed as commandments have generated heated debates in lands where Abrahamic religions are professed.
We have forgotten about crimes against humanity and war crimes, but are increasingly agitated about blasphemy as crime in a secular state. Many learned judges are seriously worried about unspeakable crimes against nature. While the rich and the powerful have legally sanctioned privileges and immunities, the poor and the powerless now have the burden to prove their innocence.
In days gone by, the jurists had listed a whole set of frightening ordeals by fire, water, poison and stake. When the present CJI, whom the writer of these lines greatly admires as one who has never shied of talking to power, expresses admiration for legal reforms such as the Nyay Samhita that will free us from colonial fetters, the confusion is compounded. If dharmashastras and smritis of yore are going to replace the existing foundations of laws of the land then we must tread carefully and slowly. It’s a sobering thought that our Constitution is also a creature of legislation during the colonial period.
It is easy to blame the lower judiciary, wardens in jails and ill-paid cops. Violating the basic principles of natural justice by a sitting CJI who chose to be a judge in his own cause shocked everyone and caused serious damage to the institution’s image he headed.
There has been no dearth of politically ambitious policemen and judges who have made a mockery of the separation of powers and majesty of law.
Maybe equality before law was always a myth. The poor and the powerless knew that to endure years of expensive litigation, legs of steel and hands of sterling silver were needed.
Pushpesh Pant
Former professor, Jawaharlal Nehru University
pushpeshpant@gmail.com