‘Be you ever so high, the Law is above you’

Shafeeq R. Mahajir

Law: system of rules which a country or community recognizes as regulating the actions of its members and which it enforces by imposition of penalties.

Defined thus, law as a regulator, determines what is acceptable, not allowing what is generally acceptable to become a substitute for what is legal. When that happens (initially I wrote “If”, but there is no more “if” about it) law, no longer moored to Constitutional principles and values, no longer anchored to time-honoured inviolable human rights, is set adrift, aimless and emasculated, mocked at instead of respected, and, instead of informing every action of individual and State, remains content with being a historical record, a dirge, of what ought to be. When justice is not deliverable, a mocked-at vestigial remnant of the majesty of law withdraws into a shell, or tower, of ivory or insensitivity: insensitivity to its mandate, its majesty, its power, its sacred duty, and the expectations of those who made it what it is, superior to each of them and binding on all.

Nowadays, it is not what is done, that matters, but who does it. What can put you in jail, can make me a hero. In thus abdicating its space to lumpen elements, law’s impotence is gleefully gloated on by those its non-feasance benefits, while those adversely affected are aghast at what the portents are for the future of the nation. All great nations are built on solid foundations of justice, and its absence invites questions as to ineffectiveness of law, and hence the very legitimacy of its existence as something law-abiding citizens must respect while more “adventurous” politically well-connected souls “revel in their violations” and go from strength to strength.

Many political figures take their oaths of office in the name of the inclusive Constitution, then proceed to call it a foreign imposition and claim they will write a different exclusivist Constitution altogether. For instance, there is this trend to speak of a Hindu Rashtr. That cannot be gaddaari with the Constitution, for we don’t hear jail mein daalo yaaron ko, Samvidhaan ke gaddaron ko. It just means they think the Constitution, good enough when they swore on it, is no longer good for the future and must be given short shrift. That’s fine. We have freedom of thought and sometimes, even of expression, depending of course on what the expression is, if you don’t know what I don’t mean.

However, while that freedom is written in our Constitution, I am certain if someone were to test-drive slogans like Islamic Rashtr, or Christian Rashtr, responses would be less accommodative.  In fact, I would not even try an Atheist Rashtr. Who knows, even in these accommodative days where gay merits “Hurray!”, and multi-sexual multi-directional multiple-partner relations are as enthusiastically encouraged as the alleged two wives in Islam damned, when elsewhere everyone seems to welcome a situation where (quoting from Edward Lear’s Nonsense OmnibusThere was a chap called Lime / Who lived with three wives at a time / When they asked “Why the third?” / He said “One is absurd” / “And bigamy, sir, is a crime!” two (wives) is naughty, and twenty (mistresses) is fantastic. Get the point? When law is set adrift, bereft of moorings, it goes just about anywhere it is led by those who seek to indulge themselves, and to heck with the law, with morality, with stupid passé things, like ethics, principles, values, with society, with national interest, with everything we received as a valued heritage from those who crafted the nation at great personal cost. Free mein milaa, toh khadar kyoon hogi? Khoon aur paseena jin ka bahaa hai voh fikr karein.

A common misconception is that Justice is a by-product of law simpliciter. It is not. Justice is the product of applied law, and when law is either not applied at all, or is applied differentially, it ceases to be an equaliser between physically (or numerically) powerful and weaker competing claims, ceases to remain a force for establishing justice, and instead promotes oppression and injustice.

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The institutions of justice are mandated to ensure a “level playing field”, but that again is a widely misunderstood concept.  Allowing, for instance, a small unit to compete with a vastly more massive enterprise, seeking a tender deposit of Rs.50 lakhs from each is not equality: putting them on par requires a deposit stipulation which is say, a similar factor of the earnings of each. When that is done, the deposit for the small unit gets scaled down to say, Rs.5 lakhs. Applied law, applied fairly, delivers equality.

The composition of society, say, is 80 of X, 15 of Y and 5 of Z. A conflict between X and Y leads to a riot. The composition of rioters will usually also be approximates of the same 80:15.  Equal treatment requires violators being detained, 16:2 or 14:3 or whatever need be, maybe even 2:10, and not 6 from each of X and Y to say, “See, we treat them equally.” Smirking policemen walking along arm in arm with one detainee while another is dragged along by the scruff of his neck, expose claims of equality as sham. When the numbers show nominal presence of X among charged accused, and predominance of Y, questions arise, especially when a besieged Y is unlikely to invite disaster by rioting, yet must defend in real time when the equaliser looks away and sits complacent. These questions are naturally more focused and intense when those not charged either hold out threats, or hold press conferences, or are feted by political stalwarts, or simply walk around to convey a message: “Be you ever so high, the Law is above you…but be aware, we are the exceptions.”

If this continues, oppression and injustice become the norm, and those who observe the law are deemed fools, while those who do not, prosper and flourish. What law is: whether a force promoting justice, or a means of deception of decent people, watching, spectator-like, their exploitation at the hands of the rich, the connected and the powerful, facilitating an effective “law of the jungle” to prevail: is a matter of perception.

Whose perception?  Obviously, the decent citizens’. Why? Well, if I perceive law as powerful, fair and just, I obey it. If I perceive it as my friend, winking at deviant aberrations, willing to bend matters and tweak things where I am concerned, I can ignore it, play with it. Whether it is celebrated and revered as a force ensuring justice, or ignored and violated as an something relied on to be a mere non-intervening spectator, making it an object of disappointment and consternation, or smug smiles, mirth and merriment, depends on what it is perceived as. Procedure being a handmaiden of Justice, the Law becomes mine, and I ride on freely, unregulated.

Perception is the key. Which is why judges keep away by convention from umpteen things that engage the attention and interest of ordinary people, souls carrying lesser burdens (the dispensing of justice is a very great burden, if you know what it entails, considering the responsibility a judge is expected to carry and the standards he is mandated to uphold). Which is why we had the century old “Justice must not only be done, it must be seen to be done.”

If a judge wants to buy a Bentley, and can afford it, he would not if he was hearing or had just recently presided over a case involving big stakes, because people might put 2 and 2 together and make 22. Mind you, the judge could be very rich, and afford not just a Bentley but ten from the Bugatti or Rolls Royce stable, but that is not the consideration, nor the convention. He wouldn’t go to a daawat where people he is hearing cases of, might be around, just in case. If a lawyer wanted to meet him in chambers, he would say “Ask him to speak in open Court.” And he would do the same if there is a series of cases involving an ideology, or public alarm about a certain unidirectional, monochromatic politico-administrative drift, and a person from that grouping, even an old friend of his from the past, turned up with an exciting or interesting gadget.

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The gadget can be accessed in the night, away from the prying eyes of inquisitive paparazzi, video cameras, and an out of the way home of a relative, or friend, could be the location for experiments. Then, nothing seen, reason for people to put anything together, or dissect events, draw conclusions, harbour apprehensions, are absent.

There is of course, an alternative. Most gadgets are available to test use so you know exactly how comfortable you are using it and if not fully satisfied, say sorry no deal and walk away.

Flashback 1: Rajiv Gandhi reportedly once bought a black cloth for a Jodhpuri from a Delhi shop, at Rs.3000/- a metre. As soon as he left, the shopkeeper pegged the price of that roll of cloth at Rs.30,000/- a metre, and it was sold out the same day. Everyone who was anyone, wanted only that cloth for his Jodhpuri.

There is then, a third alternative. The gadget can be accessed in full public view, which unfortunately can be misunderstood as declaring or announcing a connect between the gadgeteer and the judge. It is like saying “Look here, this is my friend.”

If I wanted to drive a top flight car, the shop won’t let me in: it seems you can get some only if they invite you, and I don’t qualify.

However, if I was, say, a Minister for Heavy Industries, they would bring a brand new car to me, allow me to test drive it, videograph the event with a lot of fanfare, ensure media glare, make an occasion of it, and splash it all over social media as well, because that is fantastic publicity for them! Even the Minister is driving our car!

So, if I as Minister for Heavy Industries, do my gadget testing in public, and the gadget is already a favourite with gadgeteers, and I could just have got the manufacturer get me one to test, but the one I test belongs to my friend, and I do it such that it is bound top make news, it must be more than the gadget. What if my gadgeteer friend is in line for an industrial licence? Eyebrows would be raised, right? With not a word spoken, bureaucrats processing his application would certainly get the cue.

The Minister angle is perhaps skewed, because Ministers are expected to be public figures, while judges are not.

Flashback 2: a gentleman revered as a faith healer was subject of an inquiry by the police. A powerful Union Minister was visiting. The gentleman knew him. He spoke to the politician who visited the gentleman’s house and sat before him, hands respectfully folded in a namaste. The press had been called. The picture was carried. The message was clear. Some messages are.

I once owned a Bullet motorcycle. Those days Harley Davidson, Triumph, Kawasaki, Indian, etc. had not arrived in India. Now they have, but I am too old to ride one, and the roads will not do justice to such machines. So why ride one?

Shafeeq R. Mahajir is a well-known advocate based in Hyderabad

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