The current fracas over Tarun Tejpal’s sexual misdemeanors
and Justice (Retd) A K Ganguly’s alleged act of harassment have yet again shown
that harsh laws, even when vehemently demanded by public, fail the test of
natural justice.
For someone who has always believed that Tehelka was an
illegitimate off-spring born out of a union of the rabid left with an
intrinsically corrupt dynasty based political party, the fall of Tarun Tejpal
would normally have evoked schadenfreude. While it is true that the despicable
acts of an even more despicable Tejpal have justly brought about his long
overdue fall, one cannot but ignore the relative harshness of the laws being
sought to be applied to him.
What Tejpal did was not rape as it is commonly
understood. At worst, it was a case of sexual assault compounded by his blatant
misuse of authority. But, the law as it stands today categorises the crime as
that of rape. With due respect to all - if molestation is as grave a crime as
rape, then is penile rape only as grave as molestation?
The circumstances surrounding the case of Justice (Retd.)
Ganguly are much more sad. An intern makes some allegations, long after the
purported event had happened. Even though the Supreme Court displays quite some
alacrity in forming a panel to probe the issue, the complainant further
complains publicly that the probe panel looked at her with suspicion! One may
wonder; again, with due respect to her trauma – was she really expecting that
her allegations not be investigated and be taken as facts? Unfortunately, this
is what she was expecting and being a lawyer, not so without reason. The laws
and the string of judicial pronouncements governing such crimes have resulted
in a situation that mere allegations suffice to pronounce a man guilty unless
proven innocent.
Unfortunately, this tendency of the law to transgress
principles of natural justice does not seem to be restricted to such crimes
alone. Over the years, the Indian polity has shown a remarkable proclivity to
legislate harsh statutes. If dowry couldn’t be socially fought, have draconian
provisions like 498A; if casteism cannot be eradicated, have another law which
puts the onus of proof of the accused; if foreign exchange cannot be managed,
have a FERA, if terrorism cannot be fought, have a POTA or a MCOCA; if internal
disturbances cannot be handled, have a MISA (thankfully scrapped) and if riots
cannot be prevented, have a ‘Promotion’ of Communal Violence Bill.
The number of people acquitted by the courts, even when
booked under the erstwhile TADA & POTA, even when so much so skewed against
the accused only indicate that the laws were more abused than used. Will it
then be unfair to deduce that a large number of convicts under these stringent
acts were framed?
The aftermath of many events lead the public to ask for
strict regulations. But, at times, getting what you ask for is dangerous. Laws
which are designed such that they be open to abuse are dangerous and gnaw away
at the existence of a well balanced society.
Laws where the State is handed unbound powers, where the
onus of proof shifts to the accused and where the police have untrammeled rights
over the accused simply indicate that the State has abdicated its responsibility
to govern.
The proverbial Chaupat
Raja had enacted had the harshest laws possible in his kingdom. Those laws
did not result in that Andher Nagari
becoming either secure or progressive. Why should the end result be any
different here if we continue on our quest for mindless laws?
