PARDON CRY SMACKS OF LAW FOR PRIVILEGED

By Swapan Dasgupta

The British Empire, it has been suggested by at least one historian, was built on the principle of “Ornamentalism”—an innovative euphemism for pomp, splendour and pageantry. When it came to rewarding the distinguished men (women rarely featured) who served the Empire, the authorities were more than mindful that India is extremely status-conscious. One of the perquisites of loyalty, apart from Knighthoods and Rai Bahadur/ Khan Bahadur titles, was the privilege of being exempted from personal appearance in the civil courts.

Independent India has often made a fetish of repudiating the legacy of Empire. There is a sneer that invariably accompanies the invocation of the ‘colonial legacy’, despite the endurance of Lord Macaulay’s Indian Penal Code. In practice, however, our present-day rulers appear unwilling to dispense with the more iniquitous facets of Empire, particularly when it comes to privileges for the well-connected and the loyal.

Nothing highlights this more than the contrived outrage in rarefied circles of Delhi and Mumbai over the conviction of actor Sanjay Dutt under the Arms Act by the Supreme Court and his consequent five-year jail sentence (of which he has to serve some 42 months).

That many Bollywood producers whose films starring Sanjay are at a midway stage will be deeply upset by the apex court judgment is understandable. There is also likely to be considerable sympathy for his family and the deep embarrassment to his sister who represents a Mumbai constituency for the ruling Congress Party in the Lok Sabha. In addition, there are those who lament the misfortune that has hit the son of Sunil Dutt and Nargis, both highly regarded public figures. The case of Sanjay Dutt is indeed tragic.

Appreciating and sympathising with a personal tragedy is one thing but extending it to the realms of public policy is altogether different. This crucial distinction, plus the principle of ‘equality before law’ appears to have escaped the understanding of stalwarts such as Press Council chairman Justice Markandeya Katju and some other political and personal friends of Sanjay. With his penchant from going from the sublime, Katju has even suggested that Sanjay’s stellar role in popularising Gandhi-giri through a popular Bollywood film should be taken into consideration in judging the quantum of punishment. Sections of the political class have cited Katju’s pseudo-judicial opinion to argue for a pardon.

And the Law Minister Ashwini Kumar who, strictly speaking should not be commenting on individual cases, has let it be known that the Governor of Maharashtra K. Sankaranarayan “will use his discretionary power when there will be an appeal to him. He has the power to pardon”. Since the Governor is a political appointee who has served the Congress Party well in the past, the Law Minister’s use of the term “will” (as reported in Indian Express of March 23) assumes enormous significance. There is an inescapable suggestion that a pardon for Sanjay Dutt is pre-determined.

The law, as Mr Bumble famously said, “is an ass”. It may also be unmindful of the “quality of mercy”; but the scales of justice are held blindfolded. There can’t be one standard for Sanjay Dutt and another for the others convicted in the same case. If Sanjay is to be spared the ordeal of serving time in jail, a corresponding degree of generosity must be the norm for the others, including the 10 who have been awarded life imprisonment and Yakub Memon who is to hang.  

It is important to recall the magnitude of Sanjay’s offence. He is not being punished because he happens to be a star and the son of famous parents. His offence is grave because he used his privileged position to arrange a safe venue for a cache of arms and explosives that had been received from Pakistan by the underworld to organise the serial blasts in March 1993 that killed 257 innocent people and seriously injured another 713. What Sanjay did was not merely brandish an AK-56 assault rifle and a 9mm revolver before a mirror and pretend he was Rambo. He directly facilitated a massacre of monumental proportions, an offence that was no less serious than the massacre by Pakistan-trained terrorists on November 26, 2008.

In fairness, as the Public Prosecutor has pointed out, Sanjay should have been prosecuted under the stringent TADA. Instead, the CBI, for reasons that don’t need too much probing, dropped the charges under TADA and prosecuted him under the Arms Act where conviction involves a lesser quantum of punishment. Now that the punishment has been sanctioned by the highest court, there is a clamour to spare him all further punishment.

In 1994, shortly after Sunjay had first been arrested for his role as a facilitator in the Dawood-organised act of terrorism, I met Shiv Sena chief Bal Thackeray who told me ominously of an impending “civil war” in India. Having heard him out, I gently asked him why, in that case, was he pleading for leniency for Sanjay. In his inimitable style, Thackeray retorted: “What that boy needs is three tight slaps.”

In a normal case of truancy, three tight slaps delivered by the Tiger himself may have done the trick. But Sanjay wasn’t guilty of bunking school or whistling at a passing girl. He knowingly participated in the logistics of mass murder. The Establishment may see this as akin to rash driving, but are we obliged to forget? 

Sunday Pioneer, March 24, 2013