Making people lose faith in law

Author: JKB
Date: December 4, 2004

It is the 23rd day since the Deepawali eve of Kali Samvat 5105 and the incarceration of Sri Kanchi Kamakoti Peethadhipati Jagadguru Shankaracharya Sri Jayendra Saraswati Swamiji. The Acharya continues to be in jail pending the consideration of his second bail application in the High Court of Chennai. Hearing on the application began on Monday, November 29. It is not yet completed because one of the prosecution lawyers has claimed that he is not available till December 6. One of the highest Acharyas of India today is thus made to await in jail the convenience of a mere lawyer from Delhi.

During the last three weeks, the concept of equality before law has been repeatedly mentioned to justify the treatment being meted out to the Acharya. But in order to prove our commitment to this concept of equality, do we also have to make the Acharyas equally suffer the idiosyncrasies of law and the lawerly ways of delaying relief to victims of law for which the Indian legal system is notorious? It is iniquitous to make anyone suffer the kind of delays that are inbuilt in the way our legal community practices law. By making the Acharya suffer these inequities and delays we are not proving any great principle. We are not enhancing the majesty of law as the great and greatly busy prosecution lawyer from Delhi has claimed in an interview. We are only making the ordinary believing people of this country lose faith in the way the law is practiced in this land.

The principle of equality before law has been iniquitously applied in the case of Acharya in several other ways. For example, the principle of equality before law does not and has never implied that everyone must be treated as a convicted criminal in prison. The prison manuals of India in fact legally prescribe unequal and special treatment in prison for several categories of individuals including ordinary Europeans and mere graduates. Important public figures have always been provided special treatment in prison, even when they are involved in criminal cases. This used to be done during the colonial times, and it has been done in Independent India in almost every case involving an important public figure. This has never been held against law or against the principle of equality before law.

The only exception that one can remember is the case of the unfortunate Mr. Kalpnath Rai, who was atrociously treated in prison and died soon after his release. That is known to have been a case of grave miscarriage of justice. Perhaps similarly grave miscarriage of justice took place when a judge refused to provide any special consideration in prison for Mr. Rajan Pillai, a successful businessman who was accused of some business-related misdemeanour in Singapore. Mr. Rajan Pillai died in prison as a result of judicial insensitivity.

Providing reasonable facilities to the Acharya would thus have violated no great principle of law, and probably would have avoided the possibility of the State and the judiciary being parties to some potentially grave miscarriage of justice.

In any case, what are the special facilities that a Sannyasi of his standing needed? A clean and hygienic though small place to sit and sleep; hygienic and clean facilities for performing his morning ablutions; water from a flowing river or a clean well; very simple food cooked according to the regimen that 68 previous Sankaracharyas of his Peetham have followed for nearly 2500 years; some flowers and other pooja materials to let him perform the rituals that have been performed without let or hindrance in the millennia old Parampara of his Peetham. Providing these minimal facilities would have violated no great principle of law. It would have taken away nothing from the majesty of law, that we seem to be so keen to establish. And, it would have probably added to the legitimacy of the colonial State apparatus with which we continue to burden our people.

We have not treated the Acharya in a spirit of equality before law. We seem to have chosen to treat him iniquitously, to subject him to the worse inequities of law. We have handpicked an officer with a judicially established record of human rights violation to execute the arrest of the Acharya and to head the investigation team. We have chosen to set-up a huge investigating team that seems to be empowered to fish around for other cases that may be pinned upon the Acharya. We have repeatedly announced through the press that any allegation brought against the Acharya of misconduct in the near or far past shall be investigated; and has in fact initiated investigation into all past incidents that have taken place in the neighbourhood of Kanchipuram. We chose to keep the Acharya in an all-woman police station after his arrest and during the period of police custody. We video-graphed the process of subjecting the Acharya to coercive police techniques to make him break-down and leaked the tapes to a television channel. And, we chose a special prosecution lawyer who is so motivated by a godless ideology that in an interview to the press he declares that showing respect to an Acharya is a feudal legacy. Another of the prosecution lawyers has pronounced the Acharya to be "worse than a criminal" in open court even before any charges have been brought against the Acharya.

We did not have to do all this in order to show our commitment to the principle of equality before law. By treating the Acharya the way we have treated, we have neither enhanced the majesty of law, nor the legitimacy of the State. We have only once again made a public spectacle of the iniquitous ways in which the law is practiced in this land. By lowering the Acharya thus, we have lowered ourselves in the esteem of nations and before the bar of history.