The law is an ass

An article by my father, S. Viswam

Courtesy: Janata, Mumbai, 11/24/2004

The law, famously said Charles Dickens’ hilarious Mr. Bumble, is an ass. We have been hearing during the last fortnight echoes of Mr. Bumble’s profound comment. Like laws the world over, Indian laws are also imperfect and asinine. But flawed seriously though they are, they are the laws of the land and must be allowed their natural course.

Stalwarts of the Sangh Parivar may or may not be acquainted with Mr. Bumble, but they have qualified themselves to be in his good books by wanting to stand the law of the land on its head merely because it has dealt with, or is charged by them to have dealt with, harshly in the case in which Shankaracharya Jayendra Saraswati of the Kanchi peetam stands accused of complicity in a murder case. The law as it has been made applicable to the seer by the Tamil Nadu government and police, they argue, is an ass and must be jettisoned since it has targeted a holy of holies. Shankaracharyas, as indeed all godmen, they say, must be treated as being above the law. Conversely, all religious heads, including those heading Muslim and Christian religious institutions, must be treated on par.

Certain postulates govern the law(s) of the land. The breach of these postulates in some cases does not negate them nor does the failure to observe them strictly, impartially and objectivity in all cases, particularly those involving influential politicians, renders them invalid or superfluous. Under the Constitution and the rule of the law, nobody can be above the law. The courts are the final arbiters and the public cannot take the law into its own hands or determine innocence or guilt. Every person accused of crime must be presumed innocent till proved guilty after a fair trial the course of which must not be interfered with.

Numerous influential politicians in our country have managed to escape the rigors of the law and have secured comfortable residences in guesthouses and hospitals while facing criminal charges when they ought to have been securely lodged in prisons. Some of them, though tainted with criminal charges, including the charge of murder and abetment, suppression of evidence, rioting and rape, and fraud, also happen to be ministers. There is no escaping the fact that the post-independence decades have seen persons facing criminal charges enjoying all the comforts of daily life in places other than government jails. Even so, that is not an argument for preferential treatment for some and privileged treatment for others.

The Kanchi Shankaracharya arrest has spawned an amazing number of theories on not only the rights and wrongs of the case but also on how the law of the land should be applied before and after godmen of the stature of religious heads like the Kanchi seer are arrested and detained. Vajpayee has pleaded for a different set of guidelines for religious leaders, while other BJP leaders have virtually questioned the very legality/propriety/wisdom/authority of the Tamil Nadu government in laying hands on a saint whose devotees cannot even conceptualise the possibility of a Shankaracharya ever being implicated in something as unholy as murder. By implication, what Vajpayee asks for is one law for ordinary criminals and another for religious heads, and that the arrest of a religious head is a patent act of adharma. If the logic is stretched to its limits, there can be nothing wrong in having different sets of laws and guidelines for ordinary criminals and politicians!

At the BJP-organized public rally to protest against the Kanchi seer’s arrest, and treatment after the arrest, were former Prime Minister Chandrasekhar and former President Venkataraman. Why did Chandrasekhar persuade himself to participate in a BJP-launched movement protesting against an alleged assault on Hindus and Hinduism inherent in the seer’s arrest which Vajpayee announced will continue till the Shankaracharya is released from jail? Chandrasekhar’s explanation was that the arrest had created a confrontationist situation which was not desirable. “If you want to break a nation, destroy its culture and tradition…that is what is happening now,” he said. Was Chandrasekhar suggesting that the arrest of the Shankaracharya on serious charges, serious enough for the Madras High court to deny him bail, serious enough for the Tamil Nadu government to proceed against him knowing full well the possible consequences, represented an assault on India’s culture and tradition? Is India’s culture and tradition so fragile as to be grievously injured and destroyed by a single act of police action against a single individual, revered though he may be by a large body of devotees? Was Chandrasekhar one with Vajpayee in the advocacy of immunity for religious heads from the laws of the land merely because they are religious heads?

Admittedly, in sanctioning the seer’s arrest, TN Tamil Chief Minister Jayalalithaa handed over to the Sangh Parivar on a silver platter as it were a sizzling hot issue for agitation at a time when the morale of all the front units of the Sangh Parivar, particularly the BJP, has hit the nadir. The combination of the impact of the post-electoral debacles and the upsurge of inner-party factionalism was proving too heavy for the BJP’s consumption. Nothing could have been more tailor-made for the revival of the BJP’s hopes of working its way back into the esteem of the people than the arrest episode. It is just the kind of potent issue which the Parivar was waiting for, and it dropped into their courtyard like manna from heaven.

It went to the heads of the Parivar Hindutva fanatics who have done and said everything other than any act or utterance upholding the rule of the law. On the contrary, they have done and said everything calculated to inflame religious sentiments, communalize and politicize the polity, projected the arrest not as exemplary of the enforcement of the rule of the law but as an attack on Hindus and Hinduism, and above all, as a well-hatched conspiracy against the majority community as a whole. Would the government have arrested the Pope or the Delhi Imam, they asked. India’s Shankaracharyas were higher in religious order than the Pope himself, they contended. How could the government even dare act against God’s representatives on earth?

What has been even more bizarre is the kind of statements made by the Parivar leaders and innuendos and accusations hurled by them at all and sundry in their frenetic zeal to absolve the Acharya. Ashok Singhal,VHP president, attributed the conspiracy to arrest and harass a top Hindu divine at the doors of Sonia Gandhi, of all people. How the Congress would wish that its president, who is better known as a political innocent, can be so diabolically clever and cunning as to hatch conspiracies which have the potential of shaking the Hindu citadel to its roots! Singhal’s was a typical VHP tactic to embarrass Sonia, a Roman Catholic. Will they arrest Imam Bukhari of the Jama Masjid on the day of the Eid? Asked VHP’s Pravin Togadia. Again, a typical VHP tactic consistent with the Parivar’s anti-Muslim hate campaign. How could the saint have run away to Nepal when he is in custody, innocently asked BJP’s Murli Manohar Joshi. The short answer of the TN police is that the Saint planned to run away to Nepal in a helicopter supplied by an industrialist and hence he was taken to custody. Not till the prosecution proves this charge in court will we know whether the Saint any plans to go to Nepal. However, the entire episode brought out the limits the Sangh Parivar is ready to breach in defence of Hindutva.

Similar has been the Parivar campaign against the alleged shabby treatment meted out to the seer who is supposed to have been subjected to all manner of indignities. Yet, when the court asked him whether he was lodged in comfort, free of harassment, and whether his medical needs were attended to, the seer expressed complete satisfaction. The video coverage by the police on the arrest was played in court and it showed that none of the guidelines had been breached. The seer’s only complaint was that the fact he was being arrested was conveyed to him late and only after he was brought to Chennai from Andhra Pradesh.

Unlike in France, where the law of the land would have an accused prove his innocence rather than the prosecution establish his guilt, in India, as in many other democracies, an accused is deemed innocent till proved guilty by the courts. Judging by the long list of material cited by the Madras High Court as constituting prima facie evidence implicating the Shankaracharya and thereby pre-empting bail for him, the Seer may find it hard to prove his innocence in a French court. However, that is not the point at issue. The seer may well be innocent of all the charges. The prosecution’s evidence may not stand up judicial scrutiny. The defence may be able to prove conspiracy against the Seer. The defence may also be able prove sinister motivation and vendetta on Jayalalithaa’s part, as belatedly alleged by Karunanidhi who first praised her only to condemn her later. The point at issue is that it is only the courts and not the public at large that can determine the seer’s guilt or innocence. In the instant case, the BJP-VHP combine has hastened to pronounce the Acharya innocent as the snow and demand his release. It has no business to be judge and jury. If the seer is innocent, he will walk, as the Americans say. And if he walks, Jayalalithaa will lose her job and the Tamil Nadu government will invite dismissal by the Centre for arresting a saint and dubbing him a sinner. It is as simple as that.