For some years an activist judiciary has been struggling to fill the vacuum in administration created by the collapse of the executive branch of the central government. By and large its initiatives, to close down polluting industries, regulate the use of child labour in workshops, clean the air of Delhi, resettle the residents of unauthorised shanty colonies or clean up the rotting garbage that disfigures and spreads disease in the capital, have been welcomed by the people. It is doubtless in the same spirit of public service that the Delhi High Court convicted the former prime minister of India, Narasimha Rao, of bribery, and sentenced him to three years in prison. But on this occasion the high court has exceeded its brief, for it has interpreted the law in a manner that is simply not defensible.
My quibble is not with the details of the judgement but the charge itself. To put it bluntly, no court should have entertained this charge, let alone handed down a guilty verdict. For the action for which Rao was convicted, of arranging for a sum of money to be paid to members of the Jharkhand Mukti Morcha (JMM) to vote with the government on a vote of confidence in Parliament in 1993, does not constitute the offence of bribery under the law. In fact, it would not have been an offence even if Rao had gone personally to their houses and handed out wads of cash with his own two hands.
At this point, some readers may well start to wonder why a layman is disputing a point of law with the learned judges of one of the most progressive and respected higher courts of the land. The answer is that someone has to do it. Let us start by asking ourselves precisely what bribery is. Bribery is not simply offering inducements to a person to change his mind. We entertain our bosses, offer presents to our parents, cajole our children and propitiate our spouses in scores of ways, large and small, all the time. All of them wield a certain amount of power over us and we want them to bend our way. Offering an inducement becomes a bribe when the person to whom it is offered holds an executive position, in which he exercises discretionary power or authority that he can use to benefit the bribe-giver.
The executive position has to be held within an organisation. What is more, the acceptance of a bribe is an offence only with respect to the laws of that organisation. Under the Indian Penal Code, a person can be guilty of offering a bribe only if the person he seeks to influence holds an executive post in the government. Thus, if a purchase manager in a firm accepts a commission on the orders he places for his firm, he is guilty of accepting a bribe only within the laws of that company. As far as the State is concerned, he may be guilty of cheating, ie, making a false declaration on a legal document, or fraud, or tax evasion and other associated crimes, but since he is a private person, he cannot be accused of accepting a bribe.
The position of the Jharkhand MPs is akin to that of the purchase manager. Not one of them held an 'office of profit' in the government. Nor by any stretch of judicial interpretation could they, as members of the legislative wing of the State, be considered members of the Executive (that would require them to be ministers). If there was any 'organisation' to which they owed an explanation, it was their constituency. Even there the voters could hold them guilty of having accepted a 'bribe' and betrayed their trust only if they had given them explicit instructions or they'd made an explicit promise in their manifesto, to always and unrelentingly oppose the Congress in Parliament.
The learned judges may have believed that by extending the definition of an office of profit to cover an MP, they were creating law by judicial interpretation that would close a loophole in the penal code and help to enforce financial accountability on members of Parliament. But a close look at the circumstances of their judgement shows that it is more likely to deepen the disillusionment that Indians now feel towards their 'democracy'. The evidence produced in court and accepted by it shows that three Congress chief ministers brought the money that was paid to the JMM leaders, in cash. This immediately raises the question of its status. If it was a personal gift from them, was it declared in their tax returns and did they pay income and gift taxes upon it? If it was party money, had the Congress declared its existence? In Delhi it was handed over to Satish Sharma's secretary, who was then instructed, presumably by Sharma, to pay it to the Jharkhand MPs. Yet it was Sharma who went free and Rao, who had no direct contact with the money, who was convicted.
Again, was this a personal gift to the MPs or a contribution to their party fund as they claimed to begin with? Once again, either answer raises the question of whether it was declared to the tax authorities. Since the money was used to buy apartments in their own names, one presumes that the money was a gift. But then we find that the entire building, Lilaram Estates, in which they bought their apartments, was unauthorised. Worse still, that it has not been pulled down in one of Jagmohan's urban renewal drives suggests that this was because a large number of other MPs had also purchased flats in it. Misuse of influence apart, were these too paid for in cash, one wonders?
In the end, all that the judgement has done is to throw into glaring relief the sea of black money and crime on which the Indian political system floats. Is it not a supreme irony that the only one of the entire chain of actions that was necessary to 'influence' the Jharkhand MPs that was not a crime was the one committed by Rao to save his government and give the country three more years of stability, reform, high growth and falling unemployment?
