Modern day criminal justice systems are supposed to operate under the assumption that everyone is equal before law. And there is a good reason to say so. One of the earliest texts that codified a way of life and regulated social behavior is the manusmriti. The book approached all aspects of life through the prism of varna – something that may not be aligned with modern day values. Not surprisingly, today’s politicians vilify the book and dub it discriminatory. But, not everything ancient is anachronistic. If recent happenings are any indication, some of the ancient concepts of criminal justice seem particularly relevant. In the chapter on crime and justice (Chapter VIII), the text says (verse 336-338):

 

Where another common man would be fined one cent, the king shall be fined one thousand; that is the settled rule

In case of theft the guilt of a Sudra shall be eightfold, that of a Vaisya sixteen-fold, that of a Kshatriya thirty two fold

That of a Brahmana sixty-fourfold, or a hundredfold, or (even) one twenty eight fold

 

In the ancient days, those placed at the top of the social strata also faced the harshest punishments. Today, the situation has turned on its head. There is competitive clamorfor leniency towards a privileged Bollywood star convicted by the highest court of the country. While the much hated manusmriti prescribed a 1000 times harsher punishment for an erring ruler, we need to look no further than the recent behavior of a few Maharashtra legislatures to understand how our modern day rulers take refuge under privileges to subvert the rule of the land. In most cultures, killing the king will be an act of war. In modern India, there is demand to shower ‘mercy’on those who assassinated the country’s Prime Minister

In egalitarian cultures (like those in Scandinavian nations), the principle of proportional justice may not be relevant. But, in a country like ours where the power distance is high, that principle is not just relevant but also desirable. People enjoying certain privileges by dint of their power, position, authority or social status have a greater influence in our culture. With great influence comes power and with power comes responsibility – a responsibility to be a model citizen and follow the law in letter and spirit. We have seen instances where people leverage the power differential to deflect/dilute/stonewall penal actions. When powerful politicians, wealthy business men, celebrities and those with the right connections manage to unethically soften the blows coming their way, ordinary people start losing trust in the justice system. Worse, such abuses may come to be seen as the norm and may serve as a powerful incentive to ascend the social chain in an attempt to preserve self-interests. The economic growth fuelled social upliftment will end up catalyzing-rather than mitigating- this decay.

Seen in this context, Sanjay Dutt has to be lauded for deciding not to plead for mercy. Of course, Dutt’s decision is not going to change the society. There will be politicians who will still import luxury cars and SUVs without paying the full duties. But, Dutt has done his bit. It is the ‘save Sanjay Dutt’ campaigners who have a lot to answer. What if the then Maharashtra governor pardoned Commander Nanavati for murder? Is there universal acceptance that the then Maharashtra governor did the right thing? If at all we have to draw lessons from history, we must look at the number of convictions under Section 25(1(A)) of the Arms act( or similar offences ) where Article 161 (Governor/presidential pardon) was applied and see whether there are similarities between those cases and Dutt’s.

Narendra Modi has been under a cloud since 2002 despite not even being charge sheeted. Suppose he is convicted tomorrow for a crime less grave than the ones he is accused of, will the ‘pardon Sanjay Dutt’ campaigners make the following appeal?

a. The event happen in 2002 i.e. 10 years ago. During this period Modi suffered a lot, and had a cloud hovering over his head throughout. He had to undergo various tribulations and indignities during this period. He had to go to Court often, he was denied visa by the US and the UK barred him from entering the country

b. Modi has led a life of brahmacharya committing his life for the welfare of his people

d. He has not been held to be a genocidal, and had no direct role in the riots.

e. He has been repeatedly reelected as chief minister and for over a decade has worked for the good of society and the nation. He often went to villages to extend help to our farmers and did other social work for society. He has brought in billions of investment and generated millions of jobs for the youth.

f. Modi in this period of 10 years has through his sadhbhavana yatras revived the memory of Mahatma Gandhi and the message of Gandhiji, the father of the nation.

 In these circumstances I respectfully appeal to your Excellency to pardon Modi and set him free.

 In a democracy, any decision based on discretion can set tongues wagging. Since Article 161 applies to a vast swathe of convicts, a watertight process must be established for its application so that undeserving convicts are weeded out and deserving convicts gain visibility – irrespective of their power, position or popularity. While the legal luminaries figure out a way to eliminate the discretionary nature of such decisions, bleeding hearts must consider larger societal implications before making random demands. Even if we don’t set the bar higher for the privileged sections, let’s not encourage voices that advance dubious arguments for selective lowering.

About the author: The author is an analyst who writes on politics, business and media affairs. His twitter handle is @murhari

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Muralidhar

Muralidhar is an analyst who writes on politics, policy and media affairs

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