“Quis costodiet ipsos custodies? (Who will watch the watchers?)

excerpts from http://sankaracharyaarticles.blogspot.com/

Apart from the odd article in the Tamil Press, we were unable to find any detailed coverage of erstwhile Kanchi Mutt manager Sundaresa Iyer’s Habeas Corpus hearing.

Yet, this case has significance for the entire Tamil public, if not the nation, as it touches on fundamental questions of governance and the limits of police power. Any judgments handed down in this case will, directly or indirectly, impact Tamilians’ lives, and the degree of power the Executive branch of the State Government has over them.

If this article from Tamil daily Dinakaran (translated here) is accurate, then the Tamil Nadu Government is staking the claim that anyone accused of participation in a gruesome murder can be preventively detained under the Goonda’s Act, and thence become ineligible for bail for upto a year.

The Prosecution’s argument appears to be that, since gruesome murders (especially those committed in daylight) disturb the public peace, the Goonda’s Act can be applied to anyone merely accused of such a crime.

It is a bit difficult to discern how exactly the public peace was disturbed in this case. The unfortunate victim was murdered way back in September of last year – more than 6 months ago! What public disturbance has occurred in Kanchipuram since then? Were there any riots back in October or November?

Since the Sankaracharya’s arrest, there have been demonstrations in Vellore, Chennai and all across Tamil Nadu. Most of them have occurred under the watchful eyes of intense police security, with hardly any violence, save a skirmish or two. In fact, the Chief Minister of Tamil Nadu herself was so unimpressed by these events that she declared in the Tamil Nadu assembley on November 18th: “These steps (referring to the Sankaracharya’s arrest) have not led to any law and order problem in Tamil Nadu.” (The Hindu, Nov 18, 2004).

In any case, those public protests, immediately suppressed ruthlessly by police, arose in response to the Sankaracharya’s arrest, an action the Tamil Nadu Government took. What do these - bye and large peaceful - protests have to do with Sri Sundaresa Iyer?

The Government’s contention that Sri Sankarraman’s gruesome murder disturbed the public peace is not only untenable, but, even if granted, wholly irrelevant to Sundaresa Iyer’s petition.

Moreover, the rationale given by the Prosecutor for invoking the Goonda’s Act is itself arbitrary. Is anyone accused of murder to be detained preventively now? After all, what murder isn’t gruesome?

If the Prosecution’s argument is upheld, anyone in Tamil Nadu need only be accused of a murder in order to be thrown in prison by executive order for up to a year, with no opportunity for bail, and no due process of law. In Sundaresa Iyer’s case, no court has ever examined the evidence to say whether even a prima facie case exists against him. Yet, Sri Sundaresa Iyer is locked up in a cell, and cannot even get a bail hearing before a judge because the Goonda’s Act has been slapped on him.

Is society served by such a state of affairs? What would limit the Executive branch from curtailing the liberty of any individual, effectively suo moto? What would stop any dishonest cop from getting anyone he bears a grudge against - or who won’t pay him protection money - charged of such a crime, and thrown into prison as Sundaresa Iyer has? What would protect a sitting Government’s political opponent or even civilian critics of the Executive from the same treatment?

Who, as the Roman poet asked, will watch over the watchers? This broad an interpretation of the Goonda’s Preventive Detention Act is surely an invitation to tyranny. That an individual so accused could file a Habeas Corpus plea before the courts is simply insufficient remedy. Sundaresa Iyer has now spent 95 days in prison. It is simply unacceptable that any accused, presumed innocent until proven guilty, should be deprived of due process in this manner.

It is the Executive’s power that must be curtailed at the outset. Any law, most especially one that allows preventive detention, must be applied judiciously – with restraint. That has simply not been the case here.

Meanwhile, we are appalled by the paltry coverage of this case in the media-at-large. When such grave public issues are involved, the press ought to at the very least show up. Instead, the English Language Media has largely absconded. The issues in this case surely deserve national attention and public debate. Where is The Indian Express or The Hindustan Times? Where, for that matter, is Chennai-based ‘The Hindu’? Here arise fundamental questions about the limits of police power – Where have all the secular humanists run?

George Washington once said: "Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action."