The 2G case is a morality play
Lines from the recent 2G judgement denying bail to Kanimozhi and others are telling. "Kanimozhi belongs to the upper echelons of society and is also an MP," wrote trial court judge OP Saini, "By no stretch of imagination can she be suffering any discrimination on the grounds of being a woman." A court order on 2G also says: "If a person knows that after misappropriating huge public funds, he can come out on bail...it will only encourage many others to commit similar crimes in the belief that even if they have to spend a few months in jail, they can lead a comfortable and lavish life thereafter.." 2G petitioner Subramaniam Swamy has also said that the 2G accused are not ordinary people but billionaires and must be kept in jail to protect witnesses.
The implications here are: rich elite women can suffer no discrimination.Those wanting lavish lives must be given a strong deterrent. Billionaires can harm witnesses more than an ordinary person.
Visitors to India often ask why there has been no transformative social revolution - like the French Revolution - in India. Why is it that in a country where the gap between rich and poor is so vast, the crowd has not risen up in unison and guillotined the privileged class? The riposte to that question lies in VS Naipaul's famous phrase, "India's million mutinies." We may not have had a single revolution where mobs of aam janta have cut off the heads of the elite in a public square. But throughout our history there have been and continue to be millions of anti-rich outbursts, of which Naxalism and caste violence are most visible examples. Even the Hindutva movement sees itself as an anti-elite movement, as a people's protest against the privileged "English-speaking secular" elite.
The 2G trial too is one of India's "million mutinies". The overthrow of bail jurisprudence, the CBI's failure to provide comprehensive evidence so far, the many weaknesses of the case beyond its rhetoric, have been highlighted by several legal experts. It is no longer even clear how much "loss" there was to the exchequer, with the CAG's 1.76 lakh crore figure now being systematically questioned. Yet the 2G accused, before the trial, before proof of the money trail, appear to already have been declared guilty.
Why? Because the 2G case has gone beyond, some would say dangerously beyond, legal parameters. It is now a morality play. It is a symbol of a national catharsis on corruption. For the public, facts and legal arguments have ceased to matter because this is a war against the "evil rich", revenge against billionaires who loot the system. It is, in some ways, yet another geyser eruption in the bubbling ferment of suppressed anti-elite rage that has always existed in India.
The 2G case has thus become a class war. A class war which is a backlash against the undoubted fact that for years the rich and powerful have remained untouched by and scornful of the the law. An aggressive media has taken the lead in this class war. Sangh Parivar outfits for whom the anti-corruption campaign is an orchestrated operation to topple the UPA, are also whipping up "nationalist rage" against "looters" who have benefited from "foreign-born Sonia Gandhi's government."
The question is, how should a justice system operate in a society deeply divided between rich and poor where the rich have got away for too long and continue to get away? Should Kanimozhi and Co. be incarcerated for life in order to pay for the collective sins of their class and be made examples of? Or should they be given all legal rights available? There are powerful arguments on both sides. Lawyers like Colin Gonsalves have argued that the "bail not jail" rule does not apply to the poor. According to 2001 NHRC records, 3 lakh poor undertrials remain in jail without bail. If they haven't been given bail, why should the rich?
But if the rich are to be denied bail simply because they are rich, could any accused who hails from the "upper echelon of society" be held guilty simply on the basis of an inherited guilt of an entire class? Will a rich person not be entitled to a trial before he is jailed?
It's not just the rich who suffer the burdens of perception. Today the same lawyer who represents 2G accused Sanjay Chandra, also represents "Maoist" Kobad Ghandy and "terror-accused" Mohd. Rafiq Shah. Where Justice Krishna Iyer once held that bail is a civil liberty, all three remain incarcerated before trial, because of the "jail not bail" stance of the courts. Its almost as if a newly hardline judiciary is trying to over-compensate for long years of slow legal processes and weak prosecution.
A tough judiciary is indeed a crying need. Yet systemic overhaul, faster legal processes, better prosecution should be the focus rather than a focus on individuals suffering the burdens of public perception. Kobad, Rafiq and Chandra should be tried and if found guilty, convicted through fast and fair legal process. In that sense, the judiciary must be insulated from India's "million mutinies" because the courts, after all, recognize only evidence and law, not social angst or public demand.
Yet to separate out anti-rich anger and the 2G trial is now becoming difficult. Undoubtedly, public anger against corruption is an extremely important check on the gangs of rapacious - and often villainous - tycoons who exist at all levels of business and politics. But equally a "guillotine the powerful" mentality could overthrow the law in the name of moralistic policing. Let's not forget that the ayatollah phenomenon in Iran was born from anger against a decadent rich elite, but ended up becoming a force that curtailed liberties of even ordinary citizens.