Letting the leader go

Perhaps the most significant debate that lies gestated within the negotiations between the Indian National Congress, and the UPA-II coalition it heads, and Anna Hazare’s anti-corruption “camp” is one whose foundations lie in political philosophy as well as in jurisprudence: the prosecution of a political leader whilst he or she occupies a position of political responsibility. While the laws framed upon the provisions of the Indian Constitution find form in the establishment of the policing and judiciary arms, what of their judgmental validity when the Prime Minister or the President is being prosecuted—in other words, do those who partake of the power to amend the Constitution avail immunity from its sanctions while in office?

Definite immunity On the one hand, the dignity and process of the democracy instituted to serve the people hangs in the balance while, on the other, the rights of the people upon whose choices rests the democratic institution suffers the risk of offence. Perhaps a favourable point upon which to commence the debate on this issue would be the contention—which I sponsor—that immunity is definite: the person may not avail shielding from the due processes of law indefinitely and that the immunity granted by the office of responsibility ceases as soon as its occupation is ceased.

It must be noted that when speaking of immunity, two tributary questions must be answered:

1. Has the politician violated the law whilst in office?


2. Has the politician been elected to office with full knowledge of his or her infraction(s)?

Immediacy & delay If the case is that the politician has violated the law whilst in office, then speaking anymore of immunity from the process of law would be not as pertinent as speaking of the breach of trust that existed between him or her and the people of his or her constituency (just as it would seem pertinent if he or she has been elected to office with full knowledge of his or her infraction!?). Therefore, it would be sensible to purchase the commencement of a trial with the demand for immediacy surrounding its cause lest due justice become lost and separated from its meaning in the sense of being apolitical. Furthermore, any evidence and any witnesses cannot be expected by either the government or the legislature to remain perfectly consistent with their bearing on the litigation beyond a fixed period of time: inanimate evidence could erode and witnesses could forget—and it is not the place of the court to command either of them to survive.

Fair trial & dignity However, any trial thus commenced must be decidedly fair and allow for the defendant to be perceived in the eyes of those in whose midst the case proceeds as being spared from villainy as well as victimhood. However, the procession of any debate concerning the presidium suffers the risk of damaging the dignity of the presidium itself while it mobilizes its frustration with the corruption of polity as the denial of any amount of fairness (the dignity of the presidium is necessary to maintain exemplariness and so retain the moral "cleanliness" to keep from tainting the legal system with a modality of immoral behaviour associated with the office). For example, if there exists some evidence that establishes to a considerable extent, but not beyond reasonable doubt, the culpability of a politician, the judiciary will face mounting pressure from the electorate to arrive at a judgment that they will hope favours their collective opinion—fair or no—just so that their faith in the judiciary remains even as their faith in the polity is fading. To the extent of appearing to be accountable, however, justice must not be denied thus: the preservation of this priority is paramount.

Realpolitik In the context of the Jan Lokpal Bill 2011: the institution of an organization parallel to the government does not immediately grant its exclusivity for, before the Lokpal committee can commence independent recruitment drives, it must borrow of the processes of the existing legislative and litigating bodies. At the same time, considering that constitutional provisions exist to assert that the offices of the Prime Minister and the President supersede all other offices of responsibility in the ruling government, the Lokpal committee may never enjoy the power that its spearheading campaigner, Anna Hazare, seeks, even as, upon the insistence of every individual’s discomfiture with too much power in the hands of another man, clauses are included in the Bill to protect the misuse of power by the Lokpal Committee itself—in all, making the institution a complex affair to conceive as well as sustain.

Therefore, even as convincing arguments exist on either side of the prosecution-of-the-leader-debate, I would suggest that while the political leader may enjoy immunity from the law while he or she is associated with a political post, due recourse be provisioned by the Constitution to: first, quickly and purposefully authorize a Parliamentarily-elected panel to investigate the claims, compile a report, and submit it for debate in the Lok Sabha; second, ensure that certain procedures exist to disqualify and dissociate the leader from his or her corresponding post if proven guilty; and third, empower the party or coalition in power to nominate and self-elect a substitute. Such a mechanism, if deployed, frees up the office for more accountable occupation as well as procedurally revokes the immunity availed to the politician.

1. And if it is raked up that politicians, having tasted the blissful immunity that the occupation of an office grants, may so attempt to ensure their term in office is protracted to continue to escape prosecution, and that that is why they must be denied that “tempting” immunity at all times: visit SlutWalk Toronto.