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HindustanTimes Thu,31 Jul 2014
Faith, a lost commodity
Pratik Kanjilal
November 13, 2009
First Published: 21:47 IST(13/11/2009)
Last Updated: 21:49 IST(13/11/2009)

Why is everyone so outraged because Manu Sharma went clubbing while on parole? No, I haven’t ganged up with Ram Jethmalani, who seems to have lost his sense of propriety after taking Sharma’s case. He is suggesting that Sharma needed a drink for business reasons and though he’s lodged in Tihar, he believes he never killed anyone in a pub. I’m not feeling bizarre enough to support that position today. And yet, I am glad that Sharma went clubbing. Because if he hadn’t, we wouldn’t have known the story behind the story, which is that someone leaned on the administration in Chandigarh and Delhi and expedited his parole plea, though it was a parcel of lies.

Now, both administrations are claiming that they went by the book. In reality, the Chandigarh police submitted a favourable report without evaluating the grounds for parole. The authorities in Delhi accepted it, overriding the negative report of their own police. If they had indeed gone by the book, Manu Sharma would not have got out. On the contrary, they used their discretionary powers, the source of much knavery in government. Discretion is the fountainhead of corruption, which former Prime Minister I.K. Gujral famously described as a greater danger to the nation than the threat of war.

Discretionary powers were built into our systems in good faith, so that laws could be applied efficiently and humanely. But they are used in such bad faith that automation is beginning to look preferable. In fact, the government’s vision document on legal reform, which Law Minister Veerappa Moily presented recently, proposes to reduce discretionary powers in some areas.

Filing an FIR, the preliminary step towards entering the justice system, will become an automated process using the internet. The poor and the powerless are often prevented from taking this step, and even their betters usually take the elementary precaution of getting an IPS officer to put in a word. Or they take some cash along, which has the same effect. But if the matter goes to court, they face judicial discretion, which has helped to build India’s mountainous backlog of cases.

Let me illustrate from personal experience. I am involved in a minor, open-and-shut suit in a lower court against a small-time operator. Never mind the details, which might influence the case. What I can say is that a case which should have been closed in six months has dragged on for as many years because a series of affable judges has handed out adjournments to my worthy opponent. Who, ever since the case began, has been bowed under by alleged misfortunes that would have broken the back of a lesser man. But he stands tall, having used them as excuses to evade the court. His latest affliction is swine flu, the flavour of the season. In the future, perhaps he will get HIV too. Disease will not take him off, unfortunately, but merely stall justice.

Naturally, I’m happy that Moily has proposed zero tolerance for court adjournments, a widely misused judicial discretion. I hope the principle is applied widely, because discretion has delivered injustice in diverse areas — the law, civil administration, taxation and customs, compensation, the appointment of officials… And, of course, the parole plea of one Manu Sharma.

Pratik Kanjilal is publisher of The Little Magazine

The views expressed by the author are personal


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