Thursday, April 26, 2012

Modi and responsibility

We need to discuss if the CM’s office should be an integrity institution
The response to the Ahmedabad metropolitan magistrate’s order, which says, “According to SIT, no offence has been established against any of the 58 persons listed in Zakia’s complaint”, has to be ethical and philosophical, not ideological. We must accept that a judgment has been given and legal procedures followed (properly or not will be examined in the ensuing challenge before a higher court) and hence without going into the issue of the evidence available — 40,000 pages of the SIT report — and whether it meets the standards of the Indian Evidence Act, we still have to take a position on the magistrate’s order.
Since former Congress MP Ehsan Jafri and 68 others were killed or burnt to death in the Gulberg Society riots, while there was a democratic government in power that drew its authority from the Indian Constitution, we are required to reconcile the hard fact of the carnage with the minimum guarantees of due process and constitutional protection to all citizens. This reconciling can be attempted by introducing another level of argument into the debate on the delivery of justice in Gujarat. Somebody must be held responsible for what happened.
There have been times in the evolution of our Constitution when the apex court has responded to the legal complexities of a case by formulating new judicial doctrines that have helped us make progress on the issue and thereby strengthen the constitutional order. Indian jurisprudence has grown with doctrines such as “basic structure”, “rarest of rare”, “guilty until proven innocent” or “right to life includes right to a clean environment”. Oddly enough, the doctrine that comes to mind, and seems to be relevant to the Gulberg Society massacre case, is that of “integrity institutions” formulated by the Kapadia court in the CVC case of P.J. Thomas.
The doctrine is simple: people who head “integrity institutions” must be above suspicion and even if the judicial system has not completed the process of examining the evidence and establishing the guilt or innocence of the person beyond reasonable doubt (as was the case with CVC Thomas), the fact that they are charged with a crime is sufficient basis to debar them from heading integrity institutions. If the doctrine is to be universally applied, the issues that need to be debated are whether the office of the chief minister is an integrity institution, what constitutes integrity, whether Narendra Modi has been charged (not whether he is guilty) and whether this debars him from occupying office. The Gulberg Society case places this moral burden on the public discourse, and on the apex court, to refine further its doctrine of “integrity institutions”. Since the court is seized with several issues of corruption that involve high offices and it is fairly active in its monitoring of these cases, it is perhaps apposite for it to tell us to which institutions the “integrity institution” doctrine applies.