Qur’an, 7:179: They have eyes but they do not see, they have ears but they do not hear…
Bhagavad Gita, 9:14: Sattva binds through joy, rajas through action, O Bharata, while Tamas cloaks knowledge and binds through heedlessness.
Citizens’ Manifesto: Can authority abdicate power, ignore need to exercise it?
And the list goes on. The point is, where power and position of dominance stand vested, mindset or intent of the actor is revealed by conduct: exercise of that power, manner of/sincerity in its exercise, or failure to exercise it.
The constitution contains provisions for separation of powers. One of the three organs of governance is the judiciary. When there is a dispute or an allegation that something improper has been done or has become an undesirable norm, the institution that would be required to step in and determine that issue is the judiciary. The judiciary operates in more than one way and one method is for somebody to file a proceeding to activate a judicial response. Another method is by the judiciary taking suo motu cognizance of an event or a set of events from either newspaper reports or letters addressed by individuals or even a reference by some constitutional authority seeking an opinion of the court on an issue.
The court would then be expected to take the necessary steps to adjudicate if an education is required or deliberate and furnish an opinion and if an opinion is what is requested.
It can happen that sometimes events take place which are unsavoury for both, the victims of those events or persons caught in those situations as the case may be on the one hand, and those people in power whose images are, in the opinion of some people, impacted adversely on account of the events or situations being brought to the notice of the public through newspapers, media channels or via an act that can perhaps be described as whistle blowing.
What should be the State’s response when such events occur or situations are present is one aspect of the matter. Another aspect is what should be the role of persons who are in the media and whose role is to disseminate information in exercise of their right of expression. A third aspect is what should be the response of the persons who are seen as in-charge of the areas in which these events occur or situations are found and where there are authorities in charge of a subject matter which transcends geographical conference what should be the role of those bureaucrats and political figures in whose jurisdiction such events or situations have occurred or are found.
One more aspect is what should be the role of persons in charge of enforcement of the law if and when an allegation is laid against a person who has filed a report about such alleged situation or event or occurrence intending to bring it into the public domain has discharge of that individuals role as a member of the press desirous of bringing news to the public at large. It may be that the report is filed to defame somebody and it maybe that there is no such intent and the report is factually correct and objectively conveyed information. Yet another aspect will be what should be the role or response of the judiciary when it comes to know of either the events or situations or the response of one or more of the various actors above as a step taken either to address the event or situation or its fallout or the response of one or more members of the citizenry as a reaction to the event or situation or the response from the media, or the bureaucrats or political figures or both, etc.
Each of these can have more than one response and possibly the response that it chooses will educate the people on how it perceives its role and how it desires its response to shape the manner in which that institution of which he or she is a part will evolve to serve the interests of the nation in the future.
Before we proceed to examine that we must become aware of what an opinion is in law. To ascertain what an opinion, “mental fact”, a thought, which resides in the mind of a person and therefore an opinion is, it is necessary as an exercise to draw conclusions based on an individual’s conduct, in reference to a particular matter, contemporaneously with the occurrence or matter in question, or during the time leading up to it, or after the event, which conduct suggests what might have figured in the mind of, and possibly motivated, the individual to act as he or she did. I will not elaborate: anyone interested can refer to the definition of “fact” in section 3 of the Indian Evidence Act as also Secs. 7, 8 and 9 thereof, etc.
The reader will immediately perceive that it is a slightly time consuming exercise and it cannot be ascertained immediately or prima facie as to the intent of an individual in doing what he or she did. Now the Indian Penal Code is founded on a very profound legal philosophy, based on the Latin maxim “actus non facitreus, nisi mens sit rea” meaning “act does not constitute offence unless there is guilty intention”. A simple example would be my pointing somewhere when somebody asks me for directions and my hand touching somebody else’s face. What can be “assault and battery” if done with intent to hit, will not in this example be an offence since there was no such intent. Investigation may reveal that there was in fact such intent but for that an investigation which goes into my mental state, motives etc., will all have to be considered before conclusions can be drawn as to whether I intended assault.’
Regardless of that result it will still be only a conclusion and the validity or otherwise of the conclusion of my alleged intent will have to be proved in court. If the official investigating reasonably and in good faith concludes that there was such an intention based upon his evaluation of the aforesaid factors (my mental state, motives, etc.) then an FIR prepared, then on his finding from investigation that a prosecutable offence is made out, charge-sheet filed. This exercise interferes with the accused individual’s freedom and rights and therefore cannot be carried out in a casual or speculative manner and must be carried out following not only the letter but also the spirit of any police manual or other treatise which regulate the manner in which these things ought to be done. The law is that if statute prescribes a certain thing be done in a certain manner it should be done in that manner or not at all.
To make this less boring let me digress for a minute. A man driving a car in London, parked at some distance from the edge, ordered by the policeman on duty to park closer, angrily reversed his vehicle, the rear wheel whereof mounted the policeman’s foot causing him considerable inconvenience. The driver left the car there and drove off after some time. The time lag had caused the policeman’s inconvenience to aggravate into severe pain. The driver was prosecuted and his ingenious defence was “actus non facitreus, nisi mens sit rea” ! The court threw out that defence holding that while there was no guilty intention when the event commenced, the driver’s act of leaving the car there after becoming aware of what had happened superimposed a subsequent guilty intention onto a pre-existing act, and on that reasoning, convicted him!
What a person does or does not, is based on what his thinking is; conduct showing what that thinking reveals why he did something or did not.
There is an event, an adversity for a section of the population. The common man feels helpless, does little except talk about it. News reporters have a duty to perform. This incident is reported in the media and becoming public knowledge, comes to the notice of local politicians.
They can take steps to remedy the situation, provide succour to those adversely affected, or ignore it or pretend the report is incorrect, because they are in power and the elections are years away.
The incident, becoming public, comes to the notice of the judiciary. Nobody has filed a case about this matter so the judiciary believes it is justified in not seeking a report or directing remedial action. Alternatively, although nobody has filed any case about it, the judiciary can take suo motu cognizance of the matter and proceed to assume seisin and seek a report, and/or direct remedial action, etc.
The incident, now in public knowledge comes to the notice of the police, as of that time not required to do anything, and so do not. However, the people in power are unsettled by this public knowledge as projecting their incompetence, alleged or real. They can introspect and take steps to do what they ought to. Alternatively they can feel angered and take steps to teach a lesson to those who would make public comment about such matters. This is in the above alternative, brought to the notice of an individual not connected with the incident. She or he, zealous supporter of people in power files a police complaint. It doesn’t matter what the allegation is: defaming the government, causing disaffection, creating enmity…
The matter is now before the police. They can investigate, find out what the facts are and take steps in accordance with law, following their police manuals. Alternatively, they can choose to please the politicians in power and take steps to prosecute the person filing the report in discharge of his duty and in exercise of his constitutional right, on the ostensible grounds that he has been, well, it doesn’t matter: defaming the government, causing disaffection, creating enmity…
The message to public spirited citizens, sincere press reporters and media personnel and others is loud and clear. So loud and so clear that I need not repeat it here.
The common citizen choosing to stay silent or make a complaint…the press reporter by filing a report or choosing to ignore what he saw…political figures were concerned in jurisdictional terms by choosing to provide succour or defend their claimed reputation…upset citizen who files a police complaint…the police administration in receiving the complaint, investigating it and deciding to prosecute all throwing out the complaint…judges on coming to know of this, choosing judicial restraint until somebody files a case, if at all that happens, or proceeding suo motu to take action issuing notice etc., balancing rights of citizens versus procedural law (procedure the Supreme Court has held “is a handmaiden of justice and not its mistress”)…in deciding whether to continue to cover events and report them as in the normal case, write editorials which the powers that be don’t care a damn about, pass resolutions which are a source of mirth and merriment in political clubs, or alternatively, choose to blank out all reports demonstrating their unity and power as an indispensable constitutionally empowered check on violations of law or rights, the media … each reveals from its choice, conduct or inaction, what principles or thinking it stands for.
Choices tell us what people stand for, whether they are for the nation, for upholding Constitution, law and rights, or demonstrate lack of concern for vital aspects of national life. Eyes that do not see… ears that do not hear… power not exercised…responsibility that is ignored…power that is abdicated…where will these lead nations? Answers, anyone ?
Shafeeq R. Mahajir is a Hyderabad-based nationally known lawyer