A principal challenge before our judiciary has not changed in six decades: the problem of one statute and two laws, one for the powerful and the other for the weak. Kautilya, author of Arthashastra, was perfectly happy to sacrifice the ideal for the good of the state, so there was neither conflict nor confusion in the golden age of Mauryas. The Mughals, during their jewelled period, were not perturbed by concepts like equality, although, like the Mauryas, they understood that a state could not sustain itself without some sense of equity. Big fish cannot quite swallow minnows with the impunity to which they got accustomed in the imperial age of history, at least in the theory that guides a democratic constitution. But only the delusional believe that double standards have disappeared in the application of law in democratic India.
The private sector has wealth, a useful yardstick of power. But even those few ministers without wealth have the police. No prizes for guessing which of the two is more advantageous. And so justice, which wears a blindfold in statues, turns out to have not only two eyes but more than one face.
In the first week of last December, an appalling fire broke out in a private hospital in Calcutta, killing patients. The guilt was obvious: greed and indifference had bred a culture of mismanagement in which the legitimate need for profit had long succumbed to the lure of profiteering. There is always good money to be made out of misery. Public anger, predictably, was intense. Eleven members of the board of directors have been arrested, including two reputed doctors held in great esteem in the city, one of them old and infirm. The law should be, and was, indifferent to esteem; even if those directors who were not directly involved with the management share some responsibility. But they have no immediate hope of getting bail, not because of the law, but because politicians deflect public anger at the first opportunity. These are fundamentals of democratic behaviour.
But why are there two laws, one for the private sector and one for the public? Why do members of the Railway Board never get arrested when a railway accident kills scores or even hundreds of passengers? The Chief Minister of West Bengal, Ms Mamata Banerjee, has been Union minister for railways. She never jailed members of her Railway Board, which is the direct equivalent of the board of directors, after an accident. Her party still controls the railway ministry, and accidents have not stopped. We should not however blame her for not offering her resignation, since no Union minister has resigned after a railway accident since Lal Bahadur Shastri in 1956.
The board of directors of Air India has never gone to prison for an accident; indeed, no one has even tried to prosecute an Air India or Railways manager, let alone incarcerate him. Why? Is death in a hospital, or building collapse, somehow more heinous than death from a mismanaged government utility? Why is the private sector punished for negligence of public welfare, but never the public sector, when in fact it should probably be the other way around?
Those who run public sector institutions have, without any fuss, simply placed themselves above the law. If there was any justice, dozens of nationalised bank directors would have been behind bars for the manner in which they handed out the people’s money to fly-by-night operators in the full knowledge that most of the loan would be stolen before being written off as a “Non Performing Asset”. My particular compliments to whoever coined that phrase. Never has a sweet deal been veiled by such a clever euphemism. Every Non Performing Asset should be rewritten in the account books as a Very Active Liability. Many balance sheets would suddenly look very imbalanced indeed.
I happened to be among the subclass called journalists at the White House during the visit by Atal Bihari Vajpayee after America had destroyed the Taliban government in Kabul in its search for justice after 9/11. George Bush was President, and through some mysterious process I am still unable to comprehend I was given the opportunity of asking president Bush a question. My query was not very complicated. When terrorists attacked America, the Pentagon travelled 10,000 miles to exact revenge. When terrorists attacked India, Washington urged patience, calm and various other measures designed to make you a competitor for the Nobel Prize for Peace. Why? Was an American life more valuable than an Indian life? Were there two laws in the world, one for America, and another for India?
There are.
This would not have bothered Kautilya; and he would not have asked for the resignation of the Mauryan empire’s Oxcart Board either. But I hope there is some reason for thought and reflection over double and triple judicial standards in 2012.
The columnist is editor of The Sunday Guardian, published from Delhi, India on Sunday, published from London and Editorial Director, India Today and Headlines Today.