In my response to contentedbloke‘s well-written piece An analysis of public reaction, I tried to state how politics overrides every issue, including Law of the Land.

I opinionated there that the reason most Indians did NOT come out in the open on the Shankaracharya’s arrest is because most felt that there was something more to the issue, than that the poltically motivated right/left-wingers would like us to believe. That most of us felt that the law should take its own course… as we were NOT talking of a white collar crime here…

Today’s Deccan Herald carried on the Edit Page Doctrine of religious immunity?, a very well thought out article by Punyapriya Dasgupta, stating that the Investigation must press ahead then, without faltering before entreaties or threats. I liked this piece essentially as it matches my train of thought over the last couple of weeks.

In analysing the “support” given by the BJP leaders, the so-called “right-wing proponents of Hindutva and Hinduism” – the VHP and RSS leaders, and other good natured sections of the society, Dasgupta writes:

There is also a large number of honest people, whose traditional faith in their religion and their devotion to seers and saints make it impossible to believe that a Shankaracharya can be implicated in or even accused of murdering anyone. Their deep-rooted loyalty pulls them to the viewpoint that their guru should be treated, in practice, if not also in theory, as above the law. They find it difficult to come to terms with the fact that under India’s republican Constitution, all its citizens are equal before the law.

When pressed hard, they raise one question to which no one can give a satisfactory answer: If the law is the same for all Indians, then why are some of those who should be in prison, ministers in New Delhi or in the states? This, of course, is a shame to India’s politics and government. Yet, the point remains that if one criminal escapes justice, that is not reason enough for helping others to do so.

This is something I have been saying all along. And thus it is no surprise that my thoughts are in total agreement with Dasgupta’s words:

If India is to remain a law-abiding polity as its Constitution ordains, none should be allowed to ask for setting anyone above the law.

I for one want to enjoy my fundamental right of Equality before law as guaranteed to me, a citizen of India, under Article 14 of the Indian Constitution.

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

And that’s exactly how it should be. Add to that Article 15 (1) which states that:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Before people start branding me a right/left-winger, let me make one thing clear: I am NOT saying that ONLY Hindus be subjected to the above.

I AM however stating that let us as Indians begin looking and identifying ourselves as Indians. Just that. Nothing more.

The fundamental rights are applicable to us because we are Indian citizens, not because we belong or do not belong to a particular religion.

The constitution in effect states that a hindu, muslim, sikh, christian, jain, buddist, and the like… including an athiest should NOT be discriminated by the State under the Law of the Land.

Let’s get our act together. Let’s try working towards achieving the democracy our constitution guarantees us, and states that we are!

As Purushottam Aggarwal says in Hindu silence, extremist noise published in the Indian Express:

Questioning the manner of arrest is perfectly valid, but to demand a separate law for religious figures is quite another. Governance draws sustenance from the idea of certain universal values that transcend culture and tradition. These values are the rule of law and a secular notion of citizenship.

Nakul

NOTE: I truly CAN’T say that I agree with the rest of Prof Aggarwal’s statements. I don’t!

6 Comments

  1. I don’t agree with the article “Doctrine of religious immunity” in entirety. Especially the statement “The police has already extended to the Shankaracharya enough preferential treatment.” The whole case seems to be a police conspiracy, and here the author talks about extending preferencial treatement. Probably he referrs to the fact that the Sankaracharya has not yet been physically tortured by the police – is that the preferential treatement?

    While the constitution lays down the law very clearly, there is a great deal which is left to the discreetion of the judges and magistrates – like whether judicial custody is necessary (to be decided based on the indication of flight or interference with other material witnesses), whether police custody is required (when suspect resists arrest and interrogation), whether house arrest would have been sufficient, the number of days of custody etc. All these things are solely within the discretion of the court and no law (including the constitution) lays down rules.

    That being the case, the judge should have taken a fair view of the case, and atleast remanded the Acharya to house arrest, or atleast limited judicial custody. Remanding him to police custody IS NOT a fair application of the law – for given the behaviour of the Acharya, it seems completely unjustified. He has not resisted interrogation or taken a vow of silence or gone on a hunger strike. He’s as cooperative as anyone can be! All this indicates undue bias and makes people suspect unfair play. That’s why the BJP and other went to the President. There was a signatory campaign in Chennai two weeks back, where more than 3000 citizens including myself signed a written petition to the President asking him to enquire into the case, and make sure that justice with “mercy and compassion” is applied.

    Justice devoid of compassion is the first step towards injustice.

    1. Really. The constitution is to be understood the way the judges understand it. Ain’t that how it goes?

      “Justice with mercy and compassion”… now that’s something new to me. So are we saying that anything that is NOT construed as merciful and compassionate is injustice? I guess you have made your stand clear when you say Justice devoid of compassion is the first step towards injustice.

      I somehow do not agree with this line of thought.

      I remember that in merchantile law, there is something called the Law of Equity, states that “to get equity one must do equity”. Does this apply to a heinous act? I don’t think so.

      As the explanation in wikipedia goes: ”’Equity”’ is the name given to the whole area of the legal system in countries following the English common law tradition that resolves disputes between persons by resort to principles of fairness and justness. Equity comes into play typically when none of the parties to the dispute has done anything against the law, but their rights or claims are in conflict.

      My guess is that the same logic (?) applied by the law of equity applies here (or does not apply), in relation to the magnitude of heinousness of a crime.

      Thus, while it is the judge, and the judge alone, that has a say over the binding over of the accused, I guess this is (and should be) considered in relation to law of equity and Article 14.

      A murder or an attempt to murder, IF TRUE, is as heinous a crime as one can commit.

      And thus, ‘Law of Equity’ should not be considered as the “dispute” at hand (IF TRUE), is entirely “against the law”.

      Thus, if we are saying that a person should be immune to arrests and detention, ONLY because s/he was a political/religious/financial/social Big Honcho… I don’t agree.

      Nakul

      PS: Still speaking only from the perspective of the law and the contitution, being as neutral as I can on the issue.

      1. Nakul, I wasn’t being biased. Let me clarify myself one more time:

        Section 167 of the Criminal Procedure Code, 1973:

        Procedure when investigation cannot be completed in twenty four hours.- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

        (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

        Refer to the parts highlighted in bold. This is what I referred to as the discretion of the judge. There’s no question of special treatment or immunity here. The judge can decide based on the behaviour of the suspect (the suspect’s standing in society, past background, evidence of flight, interference with witnesses, resisting interrogation etc), the extent and nature of custody. These are also the very same factors used to decide whether a suspect can be subsequently released on bail or not – another area solely within the discretion of the judge.

        All that I’m asking here is why the court took such an extreme stand (first ordering judicial custody, then police custody, then denying bail), and similarly why the Government (through the public procecutor) requested such an extreme stand like 15 day custody and 3 day police custody and asking for denial of bail. Given that the Acharya has fully cooperated with the police in the past, has displayed no hostile behaviour, given his social standing and national respect, this stinks of conspiracy and unfair play.

        I reiterate – this is not about special treatement, this is based on the facts of the case and the behaviour of the suspect. Its about what the judge and Government could have legally done, and why they didn’t do it.

        1. Interesting point Bala.

          Also note that the authorities have been careful in that they have not violated the Shankaracharya’s fundamental right under Article 22 (2). Yes. they have bent the rules to the utmost, but have not been in violation.

          As you rightly pointed out, Section 167 (2) of the IPC thus clearly vests the authority of detaining “the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole”. It is for the judge to decide. And at his sole discretion.

          In this context, why don’t we also understand that the judge has, in view of the facts placed before him in the court of law (which need NOT be presented to the public), decided to grant the said detention. The judge would have, I presume, adjudged the matter and given it the due consideration, and taken his decision.

          What you are doing is questioning the decision of the judge. And that is something I am not prepared to do. Anyway, this matter is sub-judice of the Supreme Court. And let’s see what the apex court has to say.

          Nakul

          PS: I am enjoying this debate. I hope you are too…

          1. This has definitely been interesting.. And its made me verbalize and crystalize many of my arguments! 🙂

          2. Aaah! And I thought you were all set to give up 😉

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