Comment

Misfeasance

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Satish Sharma’s actions were wholly arbitrary, mala fide and unconstitutional’ – Justice Kuldip Singh and Justice Faizanuddin in November 1996 in their judgment on the petrol pump sanction case relating to the then minister extending favours to members of the Oil Selection Boards.

 

THE recent judgement by a three-judge bench, comprising Justice Saghir Ahmad, Justice Venkataswami and Justice S. Rajendra Babu on an appeal by the former Minister for Petroleum and Natural Gas, Satish Sharma, seems to have worried a section of the public about the unassailability of those in positions of power. Two issues need to be understood while examining the judgement. First, that judgements are delivered on the basis of facts and arguments as presented in the courts and, second, a close inspection of the judgement emphasizes the fundamental wrong committed by the minister while not agreeing with certain technical aspects under which justice was sought to be delivered.

To begin with, the three-judge bench dismissed the arguments put forward by the counsel for Satish Sharma seeking to hold the entire cabinet responsible for the established wrongdoing in the handling of the licences for petrol pumps. They summarily dismissed the specious argument that the minister’s actions could not be questioned in any court, including the Supreme Court, since they were carried out on behalf of the President. Furthermore, the court upheld the decision of the earlier bench on the cancellation of licences wrongfully issued by the minister. In fact, the review bench did not even consider the re-examination of the cancellations and emphasized that the bench could not ‘entertain any plea which even indirectly aims at setting aside the judgement under review on that question.’

In doing so, it affirmed certain specific observations of the earlier bench: ‘He made allotments in favour of relations of his personal staff…on wholly extraneous considerations. The allotments to the sons of ministers were only to oblige the ministers. The allotments to the members of the Oil Selection Boards and their chairmen’s relations have been done to influence them and to have favours from them. All these allotments are wholly arbitrary, nepotistic and are motivated by extraneous considerations.’ Having quoted such sections of the earlier judgement, the three-judge bench pointed out that, ‘This court has already used judicial vituperatives in respect of such allotments and we need not strain our vocabulary any further in that regard.’ This should not really occasion unease in any section of the people.

A sense of unease, however, arises because the review bench has held that the conduct of the petitioner falls short of ‘misfeasance in public office’ which is a specific tort arguing that the ingredients of tort are not wholly met in the case. That being so, there was no occasion to award exemplary damages. The second area of concern relates to the review petition’s interpretation of the earlier judgement to mean that it had suggested that the minister be ‘hounded out by the police or the CBI.’ The point that was not argued by counsel for Common Cause, the petitioner in the writ petition before the review bench, was that the earlier bench had not directed the arms of the law to look for offences but had come to the conclusion that other offences had indeed been committed and that the law should take cognizance of them and follow them up without being influenced by the observations of the court. This is where the arguments seem to have been flawed and may well be rectified in the course of future legal actions in this matter. What also needs to be argued is the scope of such review petitions, which should essentially look into legal flaws and not factual details.

The review bench’s decision to call off the CBI, on grounds that there was no case of criminal breach of trust, deserves detailed scrutiny because it has agonized a section of the populace. The fact of the matter is that the decision on review is correct because the infringement in the Satish Sharma case was not one under Section 405 of the IPC, punishable under Section 409 IPC. What is not readily understood is why the arguments did not proceed to have the offence dealt with under the Prevention of Corruption Act instead of harping on the criminal breach of trust aspect.

A public servant whose actions in the allotment of petrol pump sites are adjudged as ‘wholly mala fide and motivated by extraneous considerations’ is guilty of offences under the Prevention of Corruption Act. The relevant section of law relating to criminal misconduct by a public servant is Section 13(1)(d)(iii) which reads, ‘A public servant is said to commit the offence of criminal misconduct if he, while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.’

There is also the issue of awarding personal damages which the earlier judgment had imposed on Satish Sharma, charging him exemplary damages of Rs 50 lakh. This has been suspended by the review bench. It may be worthwhile noting that the Supreme Court of Canada levelled personal damages on the prime minister of Quebec for cancelling a restaurant owner’s liquor licence on grounds that the cancellation was an abuse of discretion. In what way is our democracy different from that of Canada?

It is difficult to comprehend the review bench’s position that the ingredients of the tort of misfeasance were not properly made out, the rule of exemplary damages was not properly invoked, and that the penalty was arbitrarily fixed. The petitioner also claimed that those who suffered on account of the acts of the minister were not identifiable and, therefore, no finding about misfeasance could have been recorded. In accepting the petitioner’s position, the review bench has gone by the literal interpretation of the doctrine of misfeasance in public life. In that it seems to have run counter to its own description of the minister’s crime which it reiterates, ‘reflected a wanton exercise of power.’ When persons in high places are found to be guilty of misconduct, commonsense suggest that the law needs to be appropriately severe.

 

Shantonu Sen

 

On conversions

 

Father Anthony de Mello in The Song of the Bird recounts an allegorical tale about a world fair of religions which he and his friend visited. They came upon a Jewish stall. Its handouts claimed, ‘God is all compassionate and the Jews are His chosen ones.’ At the Moslem stall, they were told that ‘God is all merciful, Mohammed His only Prophet, and salvation comes from listening to the word of the Prophet.’ The message at the Christian stall was, ‘God is love, there is no salvation outside the Church – join it or risk damnation forever.’

On the way out, Father de Mello’s friend declared, ‘God is bigoted, fanatical and cruel.’ Upset, Father asked God as to how he put up with the ‘misuse’ of his name. God said, ‘It wasn’t I who organised the fair. In fact, I’d be too ashamed to visit it.’

One wouldn’t be surprised if God is once again hanging his divine head in shame. If it were not for the charred churches, murdered priests and molested nuns, one could mistake the happenings in parts of India for an advertising blitzkrieg with product promoters vying for the faith of the devout, chiming, ‘My God is better than yours.’ If this sounds blasphemous, surely more has been done to give Him a bad name.

It all began with some ‘Hindu’ fanatics burning down churches and raping nuns. Father Graham Staines and his young sons were singed in cold blood. Another Christian priest, Father Arul Doss, was brutally hacked soon after. A young nun in Chhapra, Bihar, was forced to strip and made to drink urine by a couple of demented zealots.

Reason: The Christian missionaries are at it again. Buying faith with bread. Converting by dubious methods the poor, illiterate tribals of India, purportedly Hindu, to Christianity. Revenge: Murder, molest and rape to halt the silent onslaught of Christianity and keep the Hindu dharma from fading into oblivion.

Well, the fact is that conversions to Christianity, second only to Islam in numbers, have been an ancient reality in the remote world – be it India or Africa. The hill peoples, tribes, backwards, poor, low castes ... they find favour with the missionaries, far and wide.

The equation is simple. The hungry man needs food. The illiterate, education. The jobless, employment. The casteaway, admission. The divested, dignity, and if possible, power. If he gets it all in the name of Christ, so be it. Before long he converts. The mission is accomplished.

One wonders, however, if the accomplishment isn’t borne of a subterfuge of sorts, howsoever noble. Bluntly put, the whole idea of conversion is based on a self-defeating argument. If the zealous evangelist serves the creation for the love of its Maker, he serves and loves without condition. If the service is conditional, it is obviously out of something less than love.

One is reminded of another gem from Father de Mello about Jesus Christ at a football match between the Protestant Punchers and Catholic Crusaders. Crusaders scored to be followed by the Punchers. Both times, Jesus cheered and threw up his hat in excitement. A co-spectator, puzzled, asked him: ‘Which side are you rooting for, my good man?’ ‘Me?’ says Jesus, ‘Neither. I am just enjoying the game.’ The questioner turned to his neighbour and sneered, ‘Hmm, an atheist!’

‘I side with people rather than religions,’ said Jesus. The important thing, then, is to respect and allow freedom to an individual to profess and practise his chosen faith without suspecting the reasons to do so or threatening his life for it. It is equally important to categorically denounce the brutal opposition to conversions, such as in Orissa and recently, Bihar.

I was born to Hindu parents, studied in missionary schools, and now go to a Buddhist centre to learn from a nun who converted from Christianity years ago. Luckily for me, I have been encouraged to see not the differences but the similarity and the basic unity of the religions that have touched my life. The most enduring, and certainly the most powerful, is that of karma.

‘...every action contains its consequences. If we share in doing something, we share equally in the karma,’ is Eknath Easwaran’s pithy comment on the law of karma in his brilliant commentary on the Katha Upanishad, ‘A dialogue with death’. ‘If John hits Joe, ... and Joe hits him back, I would call it cash karma. The debt is immediately repaid.’ But sometimes, Joe credits the slap to John’s account. And John may have to wait much longer before someone else hits him and clears the ledger. It isn’t easy then to see or even trace the connection. But there is undeniably one.

One can see, if one agrees with this view, that the tragedy of Graham Staines was merely the working out of this disinterested law. Neither a Dara Singh or others of his persuasion will be able to decamp with their destiny. In letting loose their bestiality, they have let loose the arrow, as the Buddha says, which will not stop until it has hit the target.

Christ says it simply, yet so powerfully: ‘As you sow, so shall you reap.’ Is it too plain, indeed provocative, to argue that a ‘Hindu’ priest or a sanyasin might have to meet as equal, as frightful, a consequence as that of a Christian priest or a nun?

‘In karma, tragically, the effect becomes the cause,’ warns Easwaran. If that be the case, there is no getting out of this boundless, binding but benign law. Except by serving and loving. For, ‘As we serve, we demonstrate love. As we demonstrate love, by law we get love. That strengthens and potentizes the individual in a way in which he can deal with his own karma.’

And that, perhaps, is the single-most important instrument of the successful proselytiser. Truth, reason and the ability to defend his position certainly quicken the process. Any real and lasting conversion, then, can happen only in the heart. Anywhere else, it merely stands for expediency. Anyway, it is only the benign face of fundamentalism. In any case, conversion belongs with currency in today’s world and is best left in the money market. Why drag it with religion – Hinduism, Islam, or for that matter, Christianity.

Bhavana Pankaj

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