We need to discuss if the CMs office should be an integrity institution
The response to the Ahmedabad metropolitan magistrates order,which says,According to SIT,no offence has been established against any of the 58 persons listed in Zakias 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 magistrates 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.
The second issue is the ethics of responsibility. There are two aspects to this. The first is the acceptance by an individual in a position of power of the major lapses or commissions committed by the institution or agency under his or her watch. Ministers have been known to resign when trains or planes crashed when they headed the ministry in question. This ethic of accepting responsibility has unfortunately passed into oblivion. It belongs to another age. So let us move from the personal ethic of accepting responsibility to the public ethic of the fixing of responsibility,by political,social or legal process,on a person when a major crime has been committed by the institution or agency of which they are the head. The argument is simple. They could have prevented the crime from taking place,since they had all the necessary instruments at their command,and yet they did not. We have to consolidate this process of fixing responsibility for major crimes which requires us to initiate two exercises immediately.
First,we have to set up a process by which a crime can be named properly as a major crime,distinguishing between crimes that can be prevented and those that cannot. Was the Gujarat case a riot,a communal conflict,carnage,pogrom or genocide? The court must specify the elements,the basis and the institutional process by which a crime is to be named a major crime as has been done in international law in the case of a crime against humanity. This brings us to the second exercise. Once a case is so classified as a major crime,the person on whose watch it occurred should be debarred from public office. The constitutional order must trump democracy here. This will move the system towards better governance since the shame and fear of being debarred from public office will ensure effective exercise of authority and thereby better protection for the ordinary citizen.
Indian constitutional democracy must evolve such institutional innovations,just as South Africa did to deal with major crimes of the apartheid regime when it created the Truth and Reconciliation Commission,and not wait for the law to take its course to deal with cases such as that of the Gulberg Society. We need to reconcile law with justice.
This brings me to the third ethical argument,that of social healing. As forceful as the argument may be of moving on and being practical and forgetting,the pain,trauma and desire for justice can only be assuaged when there is a genuine gesture of remorse and a public symbol of reconciliation by those in power when the crime occurred. The state must express regret for what happened and build a grand monument to the victims. The state must acknowledge that innocent people lost their lives. It must create a public dialogue between the communities about the truth of 2002 and seek to rebuild the trust that was shattered. It must accept,not deny,what happened. Without this acceptance and remorse,social healing will not take place and the pain will not go away. We cannot have one section of our people in pain. This goes against the promise of our Independence struggle. We must not break that promise.
The author is director,Indian Institute of Advanced Study,Shimla. Views are personal
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