Monday, May 11, 2015

Pragmatism mocks at morality?

In the Jayalalithaa appeal case, Justice C.R.Kumaraswamy has gone by the precedent set in the year 1977 by the Supreme Court. The learned (pragmatic?) judge has also calculated the value of disproportionate assets in a way that intentionally or otherwise went in Jayalalithaa's favour.

Irrespective of whether Jayalalitha (as her name was then spelt) was corrupt or not in her initial term as chief minister (1991-96), her obscene demonstration of wealth was repulsive. There is one school of thought that discharging her from corruption charges sends a wrong signal to others, would incentivise corrupt behaviour atleast on the part of others and would further erode people's diminishing faith in judiciary. This is no doubt a noble thought.

On the practical side, what would have been the consequence of the High Court upholding the finding of the trial judge, Justice Michael D'Cunha? Probably, DMK would have replaced AIADMK as the ruling party post- 2016 state elections. DMK's redoubtable leader is alleged to be even more corrupt and on top of that, his family is mired in the 2G scam. So the consequence might not have pleased the protagonists of  theory of morality.

If Kumaraswamy's mind was agonising over the need to deliver an ethically unexceptionable judgement that would not lead to unintended consequences, he would have been caught in the horns of an intractable dilemma. If he were an adherent to 'nishkama karma', his judgement would have been otherwise. In the event, he has proved to be pragmatic and a skillful practitioner of the art of the possible by choosing a particular precedent set by the Supreme Court and in the process perhaps ignoring some other precedents to the contrary.

This raises an important legal issue. The repertoire of legal precedents set by the apex court is so rich and varied that it is possible for any lower court to cherry-pick a precedent to justify a judgement. There is an urgent need for a group of jurists to collate binding principles / precedents in the area of corruption. Else, there is no purpose in judicial pontifications that "we have zero-tolerance for corruption". As Justice Kumaraswamy has shown, there is now a 10% tolerance for corruption !

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