Your Ad Here

Monday, 17 October 2011

Anna & businessmen not above rule of law

When Indira Gandhi was at the pinnacle of her power in the early 1970s, Congress president Debakanta Barooah had said "Indira is India and India is Indira" and engraved his name on the top of the list of official sycophants. Barooah had political ambitions to nurture and knew that in the Indian political system, eschewing sycophancy would not permit one to jump the queue. It is another matter that he ended up disillusioned and left Congress.

But it is hard to fathom why an educated, intelligent and public spirited person like Arvind Kejriwal would make a statement "Anna Hazare is higher than the Constitution". Howsoever popular and respected Hazare may be, can he be placed on a pedestal higher than the Constitution, which is the collective will and resolve of the people of India to abide by certain principles and guiding factors that form the backbone of rule of law.

If it is common knowledge that 'Rule of Law' is vital for equality-based democracy, how can a person be catapulted to a position which is superior to the people's collective wisdom and conscience.

Attempts by the high and mighty or undisputed mass leaders to bend the law in their favour to legitimise their every action had prompted British physician, preacher and intellectual Dr Thomas Fuller to say: "Be you ever so high, the law is above you." This expression has been widely used by the Supreme Court of India in many of its judgments to underline the importance and supremacy of 'Rule of law'.

Allowance could be given to Kejriwal, who is riding the crest of popularity as a key Team Anna member, for making a statement that Hazare is above the Constitution. But it is hard to understand what prompted a seasoned lawyer like law minister Salman Khurshid to say, "If you lock up top businessmen, will investment come?" Timing of the statement was even more questionable, for the Supreme Court is in the midst of hearing bail pleas of several corporate biggies named as accused in the 2G spectrum scam.

'Rule of Law' does not recognise the difference between successful businessmen and beggars on the street and strikes with equal force if either cross the line. If it does and become lenient towards businessmen, who may be accused of swinging a billion dollar deal through unfair means or avoiding crores of rupees in tax, then it is sure to sow seeds of discontent and rebellion among masses for reaping chaos in future.

The law is already tilted towards the businessmen compared to the commoner. If a businessman avoids paying crores of rupees in tax, he can still pay a penalty to compound the offence. But a poor fellow would languish in jail for years as an undertrial even for a petty offence, for he does not have the means to file a bail bond of a few thousand rupees.

The danger of condoning tax-avoidance was discussed in detail by the Supreme Court in McDowell & Company Ltd vs Commercial Tax Officer [1985 SCC (3) 230]. It had said, "The evil consequences of tax avoidance are manifold. First, there is substantial loss of much needed public revenue, particularly in a welfare state like ours. Next, there is serious disturbance caused to the economy of the country by piling up of mountains of black money, directly causing inflation.

"Then there is the 'large hidden loss' to the community by some of the best brains in the country being involved in the perpetual war between tax-avoider and his expert team of advisers, lawyers and accountants on one side and tax-gatherer and his, perhaps not so skilful, advisers on the other side."

It added, "Last but not the least is the ethics (to be precise, the lack of it) of transferring the burden of tax liability to the shoulders of guideless good citizens from those of the 'artful dodgers'."

The law minister's concern was for maintaining peace and prosperity of the political economy and not create chaos by going after top businessmen. But for that, 'Rule of Law' must be manipulated to wink at the alleged illegalities committed by the 'top businessmen'. Rightly, the Supreme Court reiterated that it would go only by the law and laid down parameters and procedures on grant of bail.

One of the greatest judges of the 20th century, Lord Alfred Thompson Denning, had aptly said in Bradbury vs London Borough Council [1967 (3) All ER 434] that "if a local authority does not fulfill the requirement of law, this court shall see that it does fulfill them. It will not listen readily to suggestion of chaos.... Even if chaos should result, still law must be obeyed."


Post a Comment