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Judicial Collateral Damage

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When it comes to criminals, a great many Indians think that the real problem with India is its laws, or lack of them. We hear cocktail party chatter that criminals should be shot out of hand and that corrupt politicians should be sent to jail without trial and so forth. Not that we don't already shoot criminals out of hand: what else are 'encounters' but assassinations? Lately, we also seem to be sending a lot of people to jail without any great 'legal' reason to do so.  I will give you some examples.

This new trend first emerged in October 2010 when Satyam's promoter Raju had his bail cancelled by the Supreme Court because he was "involved in one of the greatest corporate scams of the commercial world". In the old world, businessmen didn't go to jail for economic offenses, not for long anyway. Then it got worse. Notwithstanding that it is no part of an auditor's job to discover accounting frauds (Fall Guys), Satyam's internal and external auditors were tossed into jail too and, when the Andhra Pradesh High Court finally let them out, the Supreme Court send them right back. You could have spotted a paradigm shift right there.

Then there was the Pune-based stud farm owner Hassan Ali Khan, who is accused of stashing away humungous amounts of cash in Swiss bank accounts. Like it or not, this rather dodgy looking man, who is also defending a Rs 70,000 crore tax demand, has been attending Enforcement Directorate summons in its on-going investigation for money laundering for nearly ten years! In all these years, the Directorate has not been able to gather material sufficient to arrest him. In March this year, the Supreme Court suddenly decided that custodial interrogation of the man was a good idea. Am I the only one who thinks that in the best tradition of the inquisition, the Enforcement Directorate has received carte blanche to 'cleanse his soul through pain' till he squeals and they have a case against him?

Not that anyone cares about this Khan or the Satyam protagonists. Two of them are seriously crooked and the others are either dumb or easily corrupted. Yet the fact remains that if you look at the law on bail as it stands, what is happening here is not right. Let me share some nitty gritty legal stuff with you.

Since at least 1978, the law on letting people out on bail has been clear to the legal community. In the 1978 Gudikanti Narasimhulu case, the Supreme Court ruled that there were primarily only two reasons to keep a man in jail: (a) to make sure he turns up for his trial and (b) to keep him from interfering with witnesses. In the colourful words of Justice V.R. Krishna Iyar: "Realism is the component of humanity which is the heart of the legal system…the injustice of innocence long in rigorous incarceration inflicted by the protraction of curial processes, is an irrevocable injury". Okay, that was comic relief for you! I think Justice Iyar is saying that unless we have a very good reason to deny it, we must protect a man's liberty! Who can disagree and still claim to be a liberal?

There is another critical spin we need to put on the table. The 2004 Delhi High Court judgment in Court on its own motion versus CBI arose when the first secretary in the Embassy of Tanzania made some fast bucks by issuing visas for cash. The CBI concluded its investigation and filed the charge sheet in court without ever arresting this hotshot. Could he be arrested after the case went to court? The high court said no. A man who does not flee and does not interfere with witnesses during an investigation is not likely to do so later. You'd think that was the last word on the subject. Not so.

Look what is happening in the 2G case. Throughout the investigation, the CBI never made any arrests at all. Once the case went to court, we find powerful businessmen, not so powerful employees of powerful businessmen and a poetic politician —and a woman too — chucked into the slammer for a good bit. Why? The Delhi High Court judgment defeats me when it argues that the CBI's failure to arrest these persons during investigation "gives an insight into the influence wielded by the petitioners during investigation". Damned if you do and damned if you don't, isn't it? That not being enough, the court also said that just because these accused behaved perfectly "cannot be guarantee that during trial, the petitioners would not try to interfere with the process of justice by tampering with witnesses". What can you say? Why don't I get sent to jail because there is no guarantee I won't drive dangerously and kill someone next week?

What comes through in all this legal speak is that since last year, the courts have found a way to send and keep a great many corrupt types in jail for long periods. The courts have done so in the face of clear and established law thus unsettling well settled principles of law. Most people would agree that at least some of these people deserve to be in jail. Isn't this doing wrong things for the right reasons?

All this may seem very cerebral, arcane and remote because you are dealing with corruption in high places and exotic laws. What happens if these same issues face you? Have you ever tried to get your burnt out electricity meter changed or hook your spanking new house to the municipality's sewerage line. Would you like to spend a long hot summer in jail because you need to move into your new house and can't get a completion certificate without paying someone off? Sure Unitech can live without a telecom license, like you can manage without electricity…

Seen at a distance, I see a clear pattern emerging. As I have already argued (A Century After), the serendipity of changing dynamics in the Indian climate is creating something of an inflection point. The first of these dynamics is political. Having only just managed to put Bofors behind it, very few people believe that the Congress party has a realistic chance of winning another election without doing something about corruption. King Singh wants to do something and Madame agrees. The time has come.

Then there are the changing dynamics within the Indian judiciary. We finally have a man of impeccable integrity at the head of the Supreme Court, determined to undo the damage his two immediate dubious predecessors have done. We also have amongst us now a new breed of crusader lawyers - Prashant Bhushan amongst them - who care nothing for the risk they run in what they are trying to do. These forces have come together to try to initiate change that India desperately needs. Suddenly, corruption is not okay, and we are attacking it at the top.

But there is a problem. In this august quest for a better cleaner society, we are seeing a certain subversion of the very legal system that we have so doggedly and meticulously developed. In our quest for a more obtuse, elusive sense of justice, we are handing out judicial order that on the face of it are unjust. You can be cynical and say this is just collateral damage but can you afford such damage? I think we need to pause and ponder because history shows that when you start to tamper with something as complex as India's judicial system in this radical way, the Law of Unintended Consequences may have some really nasty surprises yet. And the erosion of individual liberty may be the first of them.

The author is managing partner of the Gurgaon-based corporate law firm N South and author of the pioneering business book Winning Legal Wars. He can be contacted at [email protected]



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