SOP is Standard Operation Procedure. Two rivals eye each other. They assess the opponent’s via a SWOT analysis. If they find chinks in armour, they use those. Not finding chinks, they need to circumnavigate and enter the fortress by some other route. One way is to take out the opponent’s defence mechanisms. Something like a red herring air-raid that causes the opponent to trigger on its radar installations. Then, state-of-the-art surveillance techniques step in and locate the opponent’s radar installations. Missile strikes follow to neutralise those. Radar disabled, aircraft flying in thereafter to bomb targets safe from retaliatory action, wars are won! Example, USA and Iraq. So what if there were no WMDs found? What did the world’s champions of human rights and international law do except whine, and then resign? The world’s policeman had spoken, and the rest may kindly shut up. The winners write history, my boy, however base the victory. So, we shall write and, our Moving Finger having writ, shall write on. And where the past is at variance with our narrative, rewrite… if you don’t know what I don’t mean.
An advocate was subject of a raid. The allegation was fabrication, forgery or some such thing. Coincidentally the advocate in question happened to be defending certain cases which the State was prosecutor in. If the advocate is disabled, compelled to occupy self in other self-preservative steps, attention cannot be given to other issues he has been handling. Lack of attention disables cases. A disabled (or disappearing) advocate is a boon for the party ranged against the one he appears for.
Once upon a time an advocate who was appearing for accused in Mumbai courts was “taken out”. Today he is remembered, but the cases he was handling did not thereafter have his acumen applied. The taking out of that advocate triggered an inquiry, because any unnatural event like murder does. His taking out embroiled people in a controversy. Controversies are inconvenient. They draw attention. So, an uncontroversial mode is needed. Besides, the world watches, so people prefer to operate in safety mode. Moving Fingers that write brook no fingers pointing at themselves.
The law, set in motion, carries consequences. The accused is then subject of an inquiry. Whether an FIR is made or made up, courts decline to intervene at the stage of investigations. Investigations take time. Other ordinary people are unwilling to take a stand because they are unaware of what the facts really are. The fact that in a situation an allegation is prima facie far-fetched will not cut any ice. Big people have spent time behind bars based on allegations which did not eventually hold. Big people can survive these incarcerations. They have… uh, stashes for survival. Smaller ones fall by the wayside. Setting the law in motion is a non-controversial act. It enables the trigger-finger to claim complete sincerity of purpose, and enables all pontificators to solemnly hand-on-heart say “the law will take its own course” never mind the destruction it can leave in its wake.
Tornadoes have a momentum, a direction, a trajectory and a force of their own. Torpedoes, however, are carefully directed and launched, and fly-by-wire is now substituted with face-recognition software. Hard-hitting software. Recall the tag line “zor ka jhatkaa… dheere se lage”? Where a community is to be put under siege, facelessness and anonymity are fantastic alibis for, as a friend once quipped, “In an avalanche, every snowflake pleads not guilty!”
Let’s talk back and forth. Did the advocate forge and fabricate something? I don’t know. Could he have? Yes of course he “could have”. Can the allegation be false and fabricated? Yes of course it “could be”. Things can be false and fabricated. And things can be falsely alleged to be false and fabricated. Is the police guilty? How would the police be guilty and of what? If they receive a complaint, especially one referred by a person exercising magisterial power, they would be bound to investigate, right? If they don’t investigate, someone can say they are guilty of dereliction of duty.
Can the police tap into an advocate’s computer, copy stuff? If they have an order to do that, they would. Is it legal? So far as I know, it is not. The police would say “me no know, go ask issuing authority” and the issuing authority can put up an invisible label that reads (in invisible ink, of course) “no entry without permission”, permission of course, being had only inside. Catch 23.
Can the police tap into an advocate’s computer, install software that facilitates hacking, etc.? Of course not. That’s illegal. The allegation is they broke the passcode or whatever, and copied stuff. Whose? I don’t know. Why? I don’t know. Under what provision of law? I don’t know. Why would the police do such things? Well, policemen are humans too, and if I can, you can. But you said “If they have an order to do that, they would.” Yes, I did, because look: how many policemen have the legal awareness, the moral standing, the willingness to take consequences, the absence of skeletons in private cupboards, to be able to say “Oops! Sorry, that’s not permissible”? Do you know what it means to be transferred from Janpath to Junagadh and then again to Jamshedpur in the middle of an academic year or a relative’s medical treatment? Look, the policemen simply follow orders. The law will exonerate, or convict. What responsibility is of the policeman? Theirs not to question why, theirs but to do or die.
Making a complaint to an authority is not an offence. The complaint may be found false, but unless you establish the complainant knew it was false, and/or was made with malicious intent, he is free to complain. “Knew” presupposes knowledge. Knowledge is a mental fact as is intention. Both reside in the mind. Mind itself is an abstract, a construct of thought. Thought is electrochemical activity in the brain. Brain is the physical organ. Unseen. Resides in the cranium surrounded first by cerebral fluid, encapsulated in a skull, within an outer layer of skin, often with exoskeletal growth over it.
Go prove what resides in the mind. How do you do it? By conduct. What conduct would establish that a complainant harboured malice in his mind, when he had no grudge against the advocate? Why would the complainant make a false complaint, when he had no grudge against the advocate? Well, could he have been set up by someone? Oh wow! Now you are talking conspiracy! Who would dare conspire against justice? So what do associations of advocates do? They don’t lie. They just lie low. You see, wait and watch. Is it safe to venture out? Is he one of “ours”? No? Then ignore it…can’t take chances. Also, some people deserve it.
Well, courts have on occasion had reason to adjudge complaints as false, charges as trumped up, documents as fabricated, in some cases found charges of serious offences as would ensure accused do not get bail were laid. Is that the case here? I don’t know. Is this a “defame demonise destroy” exercise devised by someone? How would I know? Who would do such a thing? Why ask me?
Is it intimidatory of advocates in general or that specific advocate? Why would anyone feel intimidated by the law being enforced? Well then why was this done at all? How would I know? Who would do such a thing? Why ask me?
Is the advocate evaporating somewhere, disappearing? Not to my knowledge. If the allegation is about forgery and/or fabrication, and there is a document or documents to show that, the evidence is already available. So what was the raid all about? How would I know? Why ask me?
The advocate seems to be quite successful, so it can’t be some desperate soul out to gain notoriety or make some money attracting clients… would a successful advocate who has his hands full handling cases, little time for family, go about doing funny things guaranteed to destroy a successful career? No, one thinks not. But the police says it has an order to carry out the operation, and if there is an order…there is an order! Stand down, sir! No disorder, please. Everything you say may be taken down and used against you. Even your silence may be noted and used against you. You won’t speak, very good you shall be booked for obstructing public servant in discharge of official duty. Bu..but… the constitution protects me, guarantees protection from self-incrimination… yeah, that you can argue in Court…when you case reaches, that is… meanwhile a State institution will be your host.
Look if the order is unjustified it will be set aside. Yes, but the compromising of information that is privileged would have been a fait accompli? The damage would have been done? Well, all right, the evidence obtained, if it is later held to have been illegally obtained, will be held unusable. The trigger-finger can be penalised. The damage can be compensated. Right. By the way, in how many cases has that been done?
Are political heavyweights behind the matter? How would I know? Who would have a motive to have such a raid carried out? What is the advantage to him her or them? Why ask me? If there was no prima facie case, would the person issuing the order not have declined to do so? Logic says yes. Courts’ records in many cases show orders issued are struck down as colourable exercise of power. So despite logic, facts can be interesting.
Let me shift gears. Let’s talk Kerala: there is an issue re halal signs. It seems to announce “halal”, is discriminatory. Why? Well, though I believe halal means permitted, for some people it seems halal is prohibited. Let’s extrapolate. Enter the Moving Finger. Every shop selling meat products must now sell, let’s say either every form of meat, halal, jhatka, neither, and any other, including pork, or forfeit licence. Objective obvious. Target obvious. Judiciary oblivious.
So, since tornadoes can move in any which direction, acquire unexpected multidirectional momentum, suppose a multitude of Indians who eat meat, whether Muslims, Christians, Sikhs, Hindus, Jews, atheists, poltergeists or whatever, get together and say “Excuse us ! We want meat. Serving only vegetarian food, and not serving meat is discriminatory. I am a Sikh. I want jhatka meat served. I am a Muslim. I want halal meat served. I am a Jew. I want kosher meat served. All vegetarian establishments must now sell all types of meat, else non-vegetarians stand discriminated against. Their religious and gastronomic sensibilities are hurt. Extrapolate more. Let’s think a Jain andolan: no onions, no garlic, using those offends their religious sensibilities… they cannot be discriminated against. Enter animal rights activists. No meat. Any meat, their sensibilities are hurt seeing poor animals, poor fowl cut down, they cry foul. Next, extrapolate some more: confining worship of one type in any religious place of worship discriminates against all other forms of worship. Free all places of worship for all forms of worship. Anyone must be able to go anywhere and do anything he calls worship. I drive a rickshaw, the hoi polloi are angry. You see, they are, because of my driving my rickshaw, made to feel guilty riding in fabulous cars. I trigger their guilt sensibilities. I drive my car, the proletariat is incensed. They are made to feel less well-endowed. Their economic sensibilities are hurt.
To imagine that once the “other” is destroyed, good will return and calm prevail, is simply delusional. The traumatic road Germany travelled is documented. Those who do not learn from history, are doomed to a replay. The powers that be need to understand that the storm-troopers who rule the roost today, will slowly work their way up the political ladder with increasingly outlandish demands and one day will be big enough to call the shots. Already the world’s opinion about India is changing. The political thinkers and strategists all seem willing to allow destruction of Project Vishwa Guru.
Where do we go from here? Are those at the steering wheel of the nation able to see the road ahead, or are they driving us into an unknown chasm, a hinterland of restrictions, constraints, straitjackets, intolerance, hate and mutual exclusion? Can a Constitutional Court take judicial notice of what is going on, treat the news reports as a taken up case, note the deliberate violation of treaty obligations and Constitutional provisions that mandate honouring those, and order the Moving Finger to please stop fingering civil rights? Or do incumbents hesitate, factoring in being faced with sudden judicial transfer orders? Oh by the way, where would one transfer a Supreme Court judge?
Are you suggesting…? Hey, now don’t go putting words in my mouth. I never said anything. Mine not to wonder why, mine but to observe and sigh.
Jai Hind.
Shafeeq R. Mahajir is a well-known lawyer based in Hyderabad