Sunday, August 6, 2017

When Differential Approach and Differentiated Treatment Converge!

The allegation against Justice Dipak Misra for illegally acquiring lease of land meant for the landless poor through “misrepresentation” and “fraud” has shocked the nation. One fervently hopes that this doesn’t join the endless saga of corruption, but instead acts as a shining beacon of hope that such misdemeanor and fraud shall no more be tolerated in India.

Let me begin with a Whatsapp forward I’ve received recently titled A New Zealander’s view on reason for corruption in India: (Incidentally, New Zealand is one of the least corrupt nations in the world and there are plenty things for us to emulate.)
Indians are Hobbesian (Culture of self interest). Corruption in India is a cultural aspect. Indians seem to think nothing peculiar about corruption. It is everywhere. Indians tolerate corrupt individuals rather than correct them.
To know why Indians are corrupt, look at their patterns and practices.
Firstly: Religion is transactional in India. Indians give God cash and anticipate an out-of-turn reward. Such a plea acknowledges that favours are needed for the undeserving. In the world outside the temple walls, such a transaction is named “bribe”. A wealthy Indian gives not cash to temples, but gold crowns and such baubles. His gifts cannot feed the poor. His pay-off is for God. He thinks it will be wasted if it goes to a needy man. Indians believe that if God accepts money for his favours, then nothing is wrong in doing the same thing. This is why Indians are so easily corruptible. Indian culture accommodates such transaction.
Morally, there is no real stigma. An utterly corrupt Jayalalita can make a comeback, just unthinkable in the West.
Secondly: Indian moral ambiguity towards corruption is visible in its history. Indian history tells of the capture of cities and kingdoms after guards were paid off to open the gates, and commanders paid off to surrender. This is unique to India. Indians’ corrupt nature has meant limited warfare on the subcontinent. It is striking how little Indians have actually fought compared to ancient Greece and modern Europe. The Turk’s battles with Nadir Shah were vicious and fought to the finish. In India fighting wasn’t needed, bribing was enough to see off armies. Any invader willing to spend cash could brush aside India’s kings, no matter how many tens of thousands soldiers were in their infantry. Little resistance was given by the Indians at the “Battle” of Plassey. Clive paid off Mir Jaffar and all of Bengal folded to an army of 3,000. There was always a financial exchange to taking Indian forts. Golconda was captured in 1687 after the secret back door was left open. Mughals vanquished Marathas and Rajputs with nothing but bribes. The Raja of Srinagar gave up Dara Shikoh’s son Sulaiman to Aurangzeb after receiving a bribe. There are many cases where Indians participated on a large scale in treason due to bribery.
Question is: Why Indians have a transactional culture while other ‘civilized’ nations don’t?
Thirdly: Indians do not believe in the theory that they all can rise if each of them behaves morally, because that is not the message of their faith. Their caste system separates them. They don’t believe that all men are equal. This resulted in their division and migration to other religions. Many Hindus started their own faith like Sikh, Jain, Buddha and many converted to Christianity and Islam. The result is that Indians don’t trust one another. There are no Indians in India, there are Hindus, Christians, Muslims and what not. Indians forget that 1400 years ago they all belonged to one faith. This division evolved an unhealthy culture. The inequality has resulted in a corrupt society, in India everyone is thus against everyone else, except God and even he must be bribed.
See the recent issue concerning appointment of the new CJI through the prism of these observations and ask if Differential Approach and Differentiated Treatment aren’t emblematic of all problems concerning our country today. Does it not vindicate the foreigner’s observation that Indians don’t believe that all men are equal? And hasn’t this inequality resulted in a corrupt society in India where everyone is against everyone else, except God and even he must be bribed? Why should one organ of democracy be accorded separate and special treatment? Any overriding justifications? Doubtless none. Differential Approach for judges of the High/Supreme Court, as senior advocate Shanti Bhushan says, owes its origin to the Supreme Court, which while violating the statutory provision in the CrPC gave “direction in its Constitution bench judgement in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgement.”
In effect, it upholds one of the two things: either all members of the higher judiciary were/are squeaky clean or there have been cases deserving of filing of FIRs but the CJI didn’t accord his approval. “Quis custodiet ipsos custodes? Or in English: “Who will guard the guards themselves?” The guards themselves? Doesn’t it then give rise to institutional conflict of interest? Does it resemble elements of any modern democratic state based on cardinal principles of separation of power and checks and balances and believes in equality and rule of law?
“The filing of that affidavit by Justice Misra is… a very serious matter” and cries out for an answer. This brings me to my next paradigm that is a besetting narrative of India: Did any Differentiated Treatment spawned off nepotism and venality brooking no rules or unassailable principles for privileged people — well-heeled, well-oiled, and well-connected, well-networked — kick in when antecedent verification and police reports were done before his elevation to the High Court bench? I guess the same check too must have been exercised prior to his elevation as Chief Justice of a High Court and then the Supreme Court. How serious offence of “misrepresentation of facts” and “fraud” detected and indicted upon that led to cancellation of land allotment was overlooked not once but many times over, when the offence antedated every stage of police check? These are disturbing issues for our society and our governance apparatus. They speak volumes of our loose and porous governance ecosystem. Not to speak of the nepotistic spread and sway it commands like a potentate that sadly has reduced public service into one of private service and private interest. The lack of an arm’s length system and culture surely has helped such aberrations.
While it may be presumptuous on my part to draw inferences here in the case of Justice Misra, the ineluctable question that crops up and needs answering is this: How could a person, who, as per information available in public domain, made a false statement in a declaration, “which is by law receivable as evidence, and using as true such declaration knowing it to be false, are serious offences under Section 199 and Section 200 of the IPC, punishable with up to seven years of imprisonment and a fine” could be appointed as a High Court judge? What sort of antecedent check was carried out by the earlier collegiums and by the then government through their statutory investigating agencies when the CBI had recorded its conclusive findings against Justice Misra and the case had attained finality by nullifying allotment of the land leased to him? Of relevance here is the fact that in the recent past, the present government has rightly refused to agree with the recommendations of the SC collegium based on adverse intelligence reports against few of the names proposed by the latter. There obviously cannot be different standards and approaches. Now that adverse information against Justice Misra have come to light and put out in the public domain, the government must take note of these facts and information, and “right” the string of glaring past “wrongs” of (i) blatant shrouding of facts and details post-cancellation of land leased to Justice Misra; (ii) willful non-cognizance of information available on government records/documents against Justice Misra; and (iii) letting a “wrong” getting perpetuated time and time again over the past two decades and more. Agreeing with the CJI’s recommendation on the part of the present government will sadly tantamount to perpetuating the past “wrongs” with yet another egregious “wrong” added to it — only made worse many times over, in the wake of adverse information against the concerned judge already available and assiduously debated about in the public sphere. That will be extremely unfortunate and it shall obscure a chronic malaise that may be timelier to smother now than we would like to think.
The saga of Justice Misra career progression despite grievous wrongs amounting to fraud makes for a perfect case-study in law schools in India and abroad. It is now for the government and the Prime Minister to pluck the high-hanging fruit to “right” the “wrongs” committed thus far for institutions to emulate, so that the fear of an overarching check and balance architecture that’s inviolate bounces across the nation vociferously and unequivocally. Let me wind down by quoting the words of wisdom of Justice (as he then was) Khehar from the NJAC judgment: “The judiciary has to be manned by people of unimpeachable integrity, who can discharge their responsibility without fear or favour.” In his action the CJI may not have lived up to his own words, but as citizens we cannot but emphasize that people of unimpeachable integrity must man the judiciary and without a shadow of doubt the man who helms it — the Chief Justice of India.
(Reproduced from

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