Monday, 13 February 2012

Gen VK Singh Case: India's Supreme Court Lowers Itself

Gurcharan Das, in his excellent book, The Difficulty of Being Good, describes a seminal episode from the Mahabharata epic where a powerful legal authority, when appealed to for justice, becomes so tied up in legalistic definitions that he fails to deliver justice. The echoes of that shameful scene were felt in India on Feb 10, when India's highest court not only tied itself up in legalisms but even went so far as to say it was not interested in establishing the truth! In doing so, the court missed an opportunity to fix one of Indian officialdom's most pervasive ills.

Some background is necessary on both of these matters that I'm alluding to.

In one of the early scenes of the Mahabharata, Draupadi, queen of the Pandava king Yudhishthira, was staked by her husband in a game of dice. When he lost, she was dragged from her chambers to the court by the victorious Kaurava prince Duhshasana, where he attempted to disrobe and humiliate her. The Kaurava king Dritharashtra and the elders of the court watched in shocked silence. None stood up to condemn the act.

What is relevant to us now is that at this point, Draupadi appeals to the oldest and most revered of them, the grandsire Bhishma. She asks if her husband had staked and lost himself first. In other words, did he even have a right to stake her?

Bhishma's answer is a classic of intellectual sophistry and moral cowardice. He wonders aloud about the legal pros and cons of the situation and finally tells her, "Dharma is subtle, my dear." With that non-answer, he abdicates his authority and lets the shameful humiliation continue. It falls to Lord Krishna to step in with a deus ex machina in the form of an endlessly unfurling sari that serves to protect Draupadi's modesty.

Bhishma had the authority to step in and stop the atrocity. He could have struck Duhshasana down and restored the dignity and dharma of the court. He did not. He talked about dharma but did not act it. A reader of the Mahabharata even today feels vicarious shame at the old man's inexcusable failure to act when he should have.

When Gen VK Singh approached the Indian Supreme Court in January this year to force the government to accept his date of birth as 10 May 1951 and not 10 May 1950 as it existed in his service records, he was appealing to the court to do the right thing. The "right thing" in my mind would be to establish the truth. What was the general's true date of birth? The answer to that question should have settled every other.

Instead, the two judges of the Supreme Court hearing his case argued that since the general had twice in the past agreed to accept the date of 10 May 1950, he had no right to raise the issue again. In other words, he had to "forever hold his peace". That's an absurd argument because the general did try to correct his records on two occasions but was knocked back each time. In other words, he did try to speak up but was silenced. Hence the admonition to him to keep his peace has no basis in natural justice.

Yes, your honours, dharma is subtle. But the truth is also simple, if you would only choose to cast your eyes in that direction.

The actual point of law raised by the appellant in both these cases was badly advised. Draupadi was damned whichever way her question was answered. If her husband had not lost himself first, then it would imply that he had a right to stake her, in which case her tormentors would be legally entitled to humiliate her. If her husband had lost all rights to her, then her status would be far worse, because she would be akin to a widow, and widows were treated terribly in Hindu society. What was needed was for Bhishma not to ponder the legalities of her question but to step up and do the right thing, which was to land a mighty sock on Duhshasana's jaw (or smite him with his mace if that was more in keeping with the mores of the time) and send him scurrying off like a rat.

The issue that Gen VK Singh raised was one of honour, which was a silly thing to raise at this stage considering that he had swallowed his pride on two past occasions and backed down before his superiors.  But the court should have seen beyond his appeal to recognise the very serious problem his issue was highlighting - the systemic malaise in India's institutions that makes them prize adherence to procedure above concern for establishing the truth.

Rather than debate the issue in narrow legalistic terms, the legal luminaries in each of those cases should have been more concerned with what was right, rather than clauses and subclauses of the law.

This is the Supreme Court, not a lower court that simply applies the law. The Supreme Court has the power to revisit the law, if necessary to overturn precedent and to re-interpret its letter to better obey its spirit.

It has done this before. In the early nineties, the Supreme Court forced the government to implement its clean air policies and thereby significantly reduced pollution levels in Delhi, even setting up its own expert committees to provide detailed advice. Under Justice PN Bhagwati, the Supreme Court had a welcome focus on the basics, i.e., justice for the common man. Justice Bhagwati innovated the concept of "epistolary jurisprudence", wherein a common man could write a simple letter to the court (i.e., there was no need for a writ petition drafted by a trained lawyer), and the court would be obliged to look into the matter to ensure justice was done. This started the era of Public Interest Litigation. Justice Krishna Iyer once said, “Judicial activism gets its highest bonus when its orders wipe some tears from some eyes”.

There is, after all, a far more important issue at stake here than the general's date of birth, his date of retirement, or even his honour as he chose to frame his case. It is that India's institutions are systemically flawed in that they are not concerned with establishing the truth but rather in ensuring adherence to procedure. If something is procedurally admissible, then no eyebrows are raised even if horrific injustice is thereby done. The court should have pointed this out and rapped the army and the ministry of defence on the knuckles for not pursuing the truth when they were informed of a discrepancy in their records. It is especially shocking that an institution like the army would resort to bargaining by issuing threats of withholding promotions and postings rather than set about establishing the truth with alacrity once a discrepancy was pointed out. Unfortunately, the two judges in this case have turned out to be far smaller men than Justice PN Bhagwati. They missed the chance to improve the system for the common man. After all, if this can happen to a general, is any citizen safe?

The important questions for the country that remain unanswered are:

- Why doesn't India have official records of birth? If a school leaving certificate is the authority for a person's date of birth, what does it say about the pathetic state of record-keeping in the country?

- How can someone be forced to "accept" a certain date of birth? Isn't there a notion of establishing the objective truth?

- Why is Indian administrative culture so concerned with procedure that it is blind to truth and justice?

The Supreme Court is now unfortunately no longer seen as a good referee or even as a referee; some even see it as a player. The entire episode has become one of mirth and merriment.

A learned and insightful critique of these systemic lapses in the light of this case would have done the institution of the Supreme Court an honour by affirming its authority, both legal and moral. The Supreme Court should be a beacon lighting the way to a better tomorrow, not a myopic microscope preoccupied with minutiae.

As it happened, the learned judges failed. Like Bhishma before them, they now stand exposed as bumbling old men who can debate the nuances of the law but miss dharma by a mile.
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