Gustakhi Maaf Haryana-Pawan Kumar Bansal
Gustakhi Maaf Haryana-Pawan Kumar Bansal
By our enlightened reader Ashok Lavasa ex Election Commissioner of India.“Dhan ke hathon bike hain sab kanoon, Ab kisi jurm ki saza hi nahin” wrote the poet Krishan Bihari Noor some years ago.
One might not agree with the sweep of this damning poetic generalization but it comes dangerously close to contemporary reality. One may disagree with what drives this wave of impunity, but the instances where illegality goes unpunished seem to increase.
Take the flurry of pardons granted by Biden to pre-empt indictment and by Trump to those already charged. Biden provided a shield against possible vengeance; Trump exonerated those who had acted violently to seek revenge. Forgiveness for deeds not done and forgiveness for serious crimes against public order exemplified that mercy was indeed “twice blest” as Shakespeare wrote “It blesseth him that gives and him that takes”.
Trump became the first-ever former or sitting president to be formally convicted of felony in a hush money criminal case. The judge gave him “unconditional discharge” letting him off without any punishment. He explained that his leniency was to “the office of the President of the United States” and “not the occupant of that office” reminding of Portia in The Merchant of Venice skilfully permitting Shylock a pound of flesh without a drop of blood. The verdict made Trump triumphantly proclaim that the unconditional discharge “proves … there is no case, there was never a case, and this whole scam fully deserves to be dismissed”. That surely is a new low when the constitutional head of the state calls the judicial system a scam.
Contrast this with an incident narrated by Gandhi in the chapter ‘How A Client was Saved’, in his book My Experiments with Truth. Gandhi advised his client Rustomji who admitted to smuggling to submit before the law and face the consequences, which could be a fine or jail. He told his client “I am of the opinion that the shame lies not so much in going to jail as in committing the offence. The deed of shame has already been done. Imprisonment you should regard as a penance. The real penance lies in resolving never to smuggle again”. As the case against Rustomji was compromised, he paid the penalty and “reduced to writing the facts of the whole case, got the paper framed and hung it up in his office to serve as a perpetual reminder to his heirs and fellow merchants”. Rustomji faced the punishment inflicted by law and demonstrated his contrition; Trump benefits by the leniency of the judge and traduces the system.
Consider the Anil Masih case where the Supreme Court of India took the extraordinary step of investigating the video to determine the illegality in tampering the ballot papers in the Chandigarh mayoral election. In an unprecedented move it instantly cured the effect of that illegality and restored justice. Yet a year later the culprit hasn’t been brought to book. No punishment for a blatant violation of law detected by the highest court of the land! Contrast this with yet another incident recounted by Gandhi in the same book in a chapter titled ‘Stealing and Atonement’ where he describes his stealing a piece of gold and then volunteering to write a confession to his father. He hands over the note to his father not only confessing his guilt but asking for “adequate punishment for it”. “A clean confession, combined with a promise never to commit the sin again, when offered before one who has the right to receive it, is the purest type of repentance.” We know that Masih hasn’t been punished; we don’t know whether he is penitent.
In the Babri masjid demolition judgement, the SC observed that the destruction of the mosque and the obliteration of the Islamic structure was “an egregious violation of the rule of law” and “constituted a serious violation of the rule of law”. And yet those responsible for the violation went unpunished.
In the case involving the Maharashtra Legislative Assembly that saw a change in government in June 2022 amidst the emergence of two Shiv Sena factions, a constitution bench of the SC held that the Maharashtra Governor did not act in accordance with the law in calling for a floor test as the Constitution does not “empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes”. However, the action of government formation that followed this illegal act was effectively legitimised.
The electoral bond case similarly left one wondering how easy it is in our system to get away with letting a law be declared “unconstitutional” by the SC and yet continue to be benefitted by such unconstitutionality akin to being allowed to enjoy the proceeds of crime after conviction.
The Election Commission, the supreme monitor of the model code, admitted after the 2024 General Elections that it overlooked the violations of the superstar campaigners of both the national parties. As per a report last year in Scroll on June 3 by Ayush Tiwari, the Chief Election Commissioner told Scroll that the EC having deliberated over poll code violations at length “decided to not admonish two top leaders each from the Bharatiya Janata Party and the Indian National Congress” because “we deliberately decided – this is such a huge nation – that the top two people in both the parties we did not touch. Both party presidents we touched equally. … Why did we leave two this side and two that side? The persons in position in this huge country also have responsibility. We reminded them of their responsibility.”
EC appears to have taken a leaf out of Gandhi who refused to file a complaint against those who assaulted him when he returned to South Africa. He writes in the chapter ‘The Calm After the Storm’ “It is my conviction that I should not prosecute the assailants” because “I am sure that when the truth becomes known, they will be sorry for their conduct.” One needs to check the conscience of the star campaigners to see if they realized that their speeches were violations of the Representation of the People Act 1951, and the Indian Penal Code. Gandhi’s act of forgiving by abdicating his right to complain had a larger purpose because in his view a personal act of seeking action against the assailants would trigger a vicious chain of social vendetta but the EC’s approach seemed to perpetrate unequal treatment by law.
In a society governed by the rule of law, punishment follows detection of wrong as the purpose of punishment is both retribution and deterrence. Admission of wrongdoing, repentance, atonement is part of social ethics and a personal code. The EC introduced the element of ‘forgiveness’ in a rule-bound system. It invoked Gandhi in its press note dated 6.06.2024 that reads “our inspiration behind this pledge to keep the electoral exercise free from violence was the Father of Nation Mahatma Gandhi. He championed equality amongst human beings and espoused democratic rights for all.”
The modern version of the statue of justice is no longer blindfolded. Should we be prepared for some new experiments with ‘truth’ and a phase of crime and no punishment?