Corruption and the admirable jurisprudence

UNBRIDLED executive arrogance, both bureaucratic and political, has at many times halted the nurturing of democratic traditions and at worst resulted in the delay and denial of justice. In South Asian perspective it has not been unusual to unfortunately witness the discriminatory dispensation of justice, particularly when the overbearing executive has been at the wrong end of the transaction. It is in this background that the recent conviction of a sitting chief minister of India on corruption charges, and subsequent rejection of bail, assumes special significance and demands the attention of those desirous of establishing an equitable justice system for public relief.

In view of the menacing nature of corruption at all levels of the administration of the governmental and semi-governmental administrative institutions and concerns, a more pragmatic approach than has been the case so far on the part of the courts is needed at the investigation stage of corruption cases. In the nature of things, it is otherwise quite difficult to unearth all the ramifications of corruption indulged in by those accused of corruption, but if the courts seem to show leniency towards people accused of high corruption, then it would be well-nigh impossible for the investigating agency to effectively and successfully investigate such cases and help bring the culprits to book.

The granting of bail has been regarded as “judicial discretion,” and this vesting of discretion is the unspoken but inescapable silent command of our judicial system. Those who exercise it are expected to remember that “discretion when applied to a court of justice means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular.” “An appeal to a judge's discretion is an appeal to his judicial conscience. The discretion must be exercised, not in opposition to, but in accordance with, established principles of law.”

Seen in the above light one can see a significant message in the Karnataka High Court's refusal to grant bail to former Tamil Nadu chief minister. The clear message is that the higher judiciary has started treating corruption among public servants with greater seriousness than ever before. In the light of Indian Supreme Court decisions describing corruption as a violation of human rights that leads to “systematic economic crimes” and a “serious malady undermining the very health of the polity,” the High Court has chosen to place corruption cases on a different footing altogether.

Attention has been drawn to an Indian Court's ruling that says a convicted public servant should be deemed to be corrupt until exonerated by the appellate court. It has also been mentioned that suspension of sentence should not be an automatic event, but a relief that should be granted only if adequate grounds exist.

It has been impressed that the grant of post-conviction bail, undoubtedly, is not the same as one given in the pre-trial stage, when there is a presumption of innocence. Rather, early disposal of the appeal could be offered as an alternative to interim relief.

The Karnataka High Court has, in a landmark action, chosen to overrule the Special Public Prosecutor's stand on granting conditional bail and held that there were no grounds for granting any relief. In fact, the former chief minister of Tamil Nadu has suffered a major setback and will have to move the Supreme Court of India for immediate relief.

In view of the foregoing, we cannot fail to notice that in terms of corruption jurisprudence, the judge's order is in tune with the spirit of a series of Indian Supreme Court verdicts. It is refreshing to observe that in recent times the Indian Supreme Court has removed the protection from immediate disqualification enjoyed by convicted legislators, fixed a time limit for granting of sanction for prosecution of public servants, directed early completion of trials involving lawmakers and struck down discriminatory provisions that required governmental clearance for investigating cases involving bureaucrats above a certain rank.

The Karnataka High Court has shown itself to be immune to the political clamour for the convicted chief minister's release. The successor chief minister of Tamil Nadu, who has made an earnest appeal for calm, has been advised to ensure that the limits of democratic protest are observed and law and order is maintained. Do we, in Bangladesh, have reasons to initiate appropriate actions in the interest of democracy?  

The writer is a columnist of The Daily Star.