Monday, 20 October 2014

RULE OF LAW? REALLY?

     Its fashionable to begin articles these days with a disclaimer( it makes one appear more profound), so let me confess too. I am no law graduate, never having enrolled myself in the " La Fucklety" of Delhi University, as the Law Faculty was lovingly called in my days. My knowledge of law is also limited: I cannot tell a habeas from a corpus and don't even know the difference between a solicitor and a procurer. But I have of late been getting the feeling that you don't need to know law to realise that all is not well with our juridical ecology, that the pedestal on which we have ensconced our judiciary has far too many bird droppings on it- in short, it is impossible to make sense of either some of our laws or even some of the judgements of our higher courts.
    I am not talking here of the Courts' refusal to decriminalise homesexuality or to disallow  euthanasia in terminal cases, both important facets of a progressive value system which more and more countries are increasingly adopting but we seem to be shying away from because of an ossified mind set. I am not talking either of a government( both past and present) that prefers to flounder in legislations of the last two centuries rather than devise laws for the 21st century. These are serious crevasses in our legal system into which thousands have fallen, but they will have to wait for another day.
   I am addressing today the more immediate issue of how we treat different classes of accused, even though we are fed, ad nauseum, the lie that the law is the same for everyone. I am increasingly beginning to feel that the law is putty in the hands of skilled and expensive lawyers and that there is no consistency in the judgements handed down from those lofty heights.
   How else does one explain that in this country a convicted and sentenced felon can get bail while a person who is not even convicted is denied bail? Both Mr. Lalu Yadav and Ms. Jayalalitha have been convicted and sentenced but have been released on bail, simply because they have/ are appealing their convictions. Why then have the Talwars not been released, whose circumstances are exactly similar? I am no apologist for Tarun Tejpal but I am one for equality before the law, and therefore I am compelled to wonder why he has been locked up since one year even though he has not been convicted and his trial has a long way to go? Because one set relates to corruption( not heinous) and the other to violent crimes? Then why were Kanimozhi and A Raja imprisoned for a year( their charge was also of corruption)? Because they could influence witnesses? Really? It stretches one's credulity to believe that the latter two could threaten/bribe witnesses and Lalu and Jayalalitha cannot.
   As I said earlier, try as you might it will be impossible to locate any thread of consistency in the law applied in these cases. We are told that each case is different-yes, indeed, but isn't the law supposed to be the same? I do discern, however, a faint and nebulous thread running through these cases, and perhaps you do too- if you are a politician the law will treat you with kid gloves, and if your case is picked up by Arnab Goswami and Karan Thapar for prime time panel discussions then you are damned! This is a constantly emerging pattern and cannot be a coincidence. The Talwars and Tejpal( and Mr. Pandher-let us not forget this gentleman who has been acquitted in almost all the cases against him but has been reduced to a cadaver after seven years in jail)-they were dead meat the day the prime time mob got after them, and the law obliged.
    The grant of parole is another mystery I cannot fathom. Tens of thousands of undertrials cannot even think of getting parole but the privileged have no problem, even though they are convicted and sentenced. A Chautala gets the reprieve on medical grounds and then goes on to campaign for elections: our judicial conscience is assuaged by sending him back to jail AFTER the campaigning period is over! A Manu Sharma( sentenced to life for murder, no less) repeatedly obtains parole for attending funerals, weddings and taking exams. A Sanjay Dutt benefits likewise because his wife is supposed to be ill, though she is otherwise seen partying. Two Italian marines are given a vacation to celebrate Christmas with their families in Italy- if bilateral relations make this imperative, then why charge them in the first place: why not simply accept the crores offered by Italy as compensation and give the two a Presidential pardon? Why first bring them into the legal system and then twist this system and make a mockery of it?
    Something else that addles my jurisprudence challenged brain is the constant interventions by higher courts in the proceedings of trial courts, somewhat similar to what Arnab Goswami does to his panelists. With more than 30 million cases pending in various courts as of 2013, should trials be stayed on the flimsiest of applications? A case which immediately comes to mind is the National Herald case against the Gandhi clan. Taking cognisance of a complaint the trial court issued summons to the accused for appearance almost three months ago. The accused immediately approached a higher court( no surprises here!) and got a stay-and added another number to the pendency. The case has not moved forward an inch-which suits the Gandhis just fine. Consider another odd case: Salman Khan was CONVICTED by a trial court in the black buck poaching case two years ago but the sentence was suspended by the Rajasthan High Court without even deciding his appeal. The Rajasthan govt. has challenged this in the Supreme Court. The main appeal is yet to be heard. Years have been unnecessarily added to the final disposal of this case enabling our dabang hero to add a few dozen more crores to his kitty. And this is in addition to the dozens he has already added because his hit-and-run case in Bombay has already taken 12 years and reached nowhere, because mid-way the honourable judge decided to add fresh charges against the thespian, and the whole trial had to be started de nouveau. Why can our courts not realise that delays benefit only the rich and powerful, and then do something about it?
   It has become almost the norm, if your pockets are deep enough and your connections extensive enough, to challenge every interim order of a trial court at a higher forum. Appeals are filed against charge-sheets, summons and warrants, framing of charges, summoning of witnesses, nature of evidences, and just about every excuse the fecund mind of a well paid lawyer can conjure up. I am unable to understand why these appeals are entertained at all-why not simply let the trial go on and let these issues become the causus belli in appeal when the trial court passes its final order? I have no difficulty in understanding why the lawyers do so- after all, if you are paid a few lakhs for every appearance( in court) your mind will be as fertile as a vermicomposting pit. But why do the courts allow this to happen?
   How is it that politicians who work 16 hours a day while in office and corporates who party for just as long, invariably develop heart/ blood pressure conditions the moment they are sent to jail? And why are our courts so accommodating as to send them to the nearest five star hospital ( in the comfort of which they can plan their next interlocutory appeal)? Why can they not be treated, if treatment is required at all, in the jail hospital or the nearest govt. hospital? After all, govt. hospitals are where law abiding and unconvicted( as yet) citizens like you and I go to-why not these hot shots? If the courts sent them there instead of molly coddling them I can guarantee that, given the conditions of our govt. hospitals, these worthies would be screaming to be sent back to their VIP cells in Tihar and such requests would end once and for all.
   And finally, about our laws and law makers. About 150000 Indians die in traffic accidents every year, victims of over speeding, drunk driving, unlicensed drivers, rash driving and other similar conscious acts. And yet the perpetrators of these deaths obtain bail within a few hours and, if convicted at all, can get a maximum sentence of two years only. In other words if you kill somebody with a six inch pistol or a nine inch knife weighing 500 grammes you will get life or death, but if you know your law you would be better advised to kill someone with a four meter projectile weighing two tonnes; chances are you would go scot free or spend just a year or two in jail, even less if you develop high blood pressure or an enlarged prostate or decide to take your bar council exams at this propitious moment. Why cannot the law be amended to make such a deliberate act( it IS deliberate if you drive while drunk or break the speed limit or do not have a driving license) culpable homicide at least? In the USA such offences come under a separate category termed vehicular homicide, an eminently sensible formulation. What prevents the government from bringing in a similar law, or the Supreme Court from ordering the govt. to do so?
   Civilisations cannot exist for long without a system for imparting justice that is fair, equitable, affordable, accessible; a system that is not hijacked by the rich or powerful few. In India our much vaunted justice or judicial system sadly lacks all these attributes. Furthermore, it is not merely laws that ensure the rule of law: its guarantee lies in the intellectual integrity of its practitioners-the plaintiffs, lawyers, the judges; here again there is much that is found wanting. 
   The time has come for us to tackle this creeping malaise. Otherwise there are Alternative Dispute Redressal Mechanisms( ADRMs) waiting in the wings to take over. These comprise a range of mediums or agencies, none of them compatible with a progressive society: the Taliban, The Khap Panchayat, the D-company, the Vigilante, the Encounter Specialist, the Dirty Harry cop. Their prototypes have already arrived. Its time for us to wake up.
    

Monday, 13 October 2014

TIHAR REGENCY


       This is the century of Private Capital. While governments involve themselves in waging wars and making life as difficult as possible for their citizens it is the private sector that is pushing forward the frontiers of economic development and spawning the innovations that will make life sustainable in the years to come. It is  private enterprise and entrepreneurship again which is( happily for all of us) ensuring that governments are becoming more and more irrelevant to the life of the common citizen- whether it is Twitter and Facebook for information sharing, or Dupont and Suzlon for renewable energy sources of the future, or Amazon and Ali Baba for creating freer markets. It should surprise no one, therefore, that MacDonalds and Coca Cola have conquered more countries than all of Mr. Obama's armies, or that just the combined" Brand values" of just four companies- Apple, Google, Coca Cola and IBM- at US$ 380  billion, is more than the total foreign reserves of India!
     In this changing environment, therefore, Mr. Modi is spot on in stressing the primacy of the private sector in developing the country's economy, in sectors as diverse as defense production, power, infrastructure, tourism, food processing, housing and so on. But he appears to have neglected one critical sector which of late has become a magnet for powerful politicians, bureaucrats, corporates and well connected criminals, a sector which is like, pardon the pun, a " holding" company for all kinds of dubious operators. I refer, of course, to our prisons.
    I owe this path-breaking realisation to a very close friend of mine who is a successful hotelier in Shimla. Looking around for his next project, his usual fertile imagination bolstered by a couple of single malts, he voiced the desire to build a five-star hotel in Tihar Jail of Delhi, exclusively for its convicted inmates( or at least those who could afford to pay for it). If this sounds crazy to you, just list out the crazy ideas of a few decades ago which now go by brand names such as Gillette, KFC, Otis, Hoover, Ford, Frigidaire, or by product names such as submarines, steam engines, telephones, airplanes, even the humble condom for God's sake! To slightly alter a Shakespearean phrase-those whom the Gods would make billionaires, they first make crazy.
     The more I think of a luxury hotel in Tihar the more sense it makes to me. After all, prisons in the Us and UK have been handed over to private companies for their running and management, and even Tihar has its own snacks making division, a furniture unit and even has a food-court, all under the brand name " TJ". Why not then a franchised hotel? I even examined the idea on the crucible of the three hallowed P's of marketing management- Product, Price and Promotion- and found it a winner on all counts. Let me share this with you.
    PRODUCT. There is no doubt at all that there is a niche and unmet demand for this product i.e. a five star hotel in Tihar Jail. Firstly, with the change in govt. at the centre the list of erstwhile VIPs gradually lining up for admission to Tihar is growing by the day. These include politicians of the A. Raja and Kanimozhi variety whose brief sojourn earlier is likely to be followed by a more prolonged stay now that the 2G case is reaching its end, Kalmadi and Sheila Dixit whose ( commonwealth) game is almost over, Lalu Yadav and Jayalalitha and maybe even Mamatadi and Mayawati if the CBI is allowed to get on with its investigations unimpeded and the Supreme Court takes fewer vacations. Add to this the captains of industry involved in the 2G and Coal scam cases, Augusta Westland and other assorted scams too numerous to list. And of course, how can we forget those who are already ensconced in Tihar or other jails, earning loyalty reward points- Sahara Shri, Sudipta Roy, Kunal Ghose, or those, like Mr. Mallya, who should have been there much earlier, Sanjay Dutt whose bulging biceps rule out his own release on medical grounds and therefore his wife has to perforce fall ill every few months. Scattered among these heavy weights will doubtless be some bureaucrats or bank managers who thought that their fat pensions did not do justice to their talents.
    These gentlemen( and ladies) would pay anything to be provided in Tihar the comforts they are used to- this is the nub and heart of my friend's brilliant concept. Right now they get barely a fraction of the luxuries they desire, and that too by devious means-false medical certificates to obtain parole or get admitted to super speciality hospitals, generous contributions to the jailors' post retirement corpus for special favours such as special VIP cells and servings of biryani, killing off a relative now and then in order to attend the funeral simply to get out for some time.
    All this poses a massive headache for the courts and the governments. And things are about to get  worse. At least one ex-but-de-facto Chief Minister and one potential Chief Minister are all set to establish their offices and secretariats in jail and rule from there , surrounded by pimps and rapists and murderers. Very soon, other than Mr. Subrata Roy, there will be other corporate honchos wanting to sell their assets to get bail or liquidate their loans or to pay their fines- how many corporate offices can Tihar be expected to provide on the Sahara model? No indeed, this is a deluge that the government cannot counter by itself-it needs the services of entrepreneurs like my friend from Shimla.
   A luxury hotel in Tihar would resolve all these problems at one stroke-five star accommodation, multi national cuisine, all corporate facilities, wi-fi, access to hawala accounts. Given the inventiveness of our private sector I have no doubt that soon the basic product would be tweaked to offer all kinds of special packages: for example, a Corporate Package( or discount) for two or more CEOs booking in as a group, a Bail Package for two days and one night for those who intend to stay only till their bail petitions are approved, a Nuptial Package( two nights and one day) for those wanting to be reacquainted with their wives, a Parliamentary package for our legislators, a Repeat Offender package for inmates gracing the jail more than once. There could even be a Chief Ministerial suite( they'll probably need more the way things are shaping up). Of course all payments will have to be made in cash since the guests could hardly be trusted with any money-if they could they wouldn't be here in the first place.
   PRICE. This is not an issue considering that the combined wealth of all these worthies would probably be more than the GDP of all our neighbours, with the exception of China.
   PROMOTION. Most of this would be by word of mouth and hoardings put up outside prime catchment areas such as Parliament, corporate offices of companies, Stock Exchanges, major studios in Bollywood conveying messages such as TIHAR ME ACCHE DIN AAGAYE or TIHAR-THE KING OF GOOD TIMES or THE PERFECT ESCAPE-TIHAR REGENCY. Being a captive market, pardon the pun again, the expenditure on promotion would be negligible, adding to the viability of the project.
   Tihar Regency would be the perfect product-a win-win for all: the consumer, the promoter, the government and even the courts who would be rid finally of all those frivolous applications for parole, health check-ups, attendance at funerals, sitting for exams etc.which so far have not served the cause of justice one iota but have certainly enriched the likes of Mr. Ram Jethmalani and Salman Khurshid no end.
  My hotelier friend is preparing a project report for submission to the central government. He still has one problem, though: where does he find a Chief Guest for inaugurating Tihar Regency? If you think you have an answer please do leave a comment.