When fair is foul and foul is fair

Let us begin to view the law as not an ‘end’ in itself, but as a mere spoke in the wider societal wheel, a spoke requiring constant re-evaluation and recalibration

Our notions of fairness appear to be predicated solely on the law.— PHOTO: AP

Edging closer to the New Year, India seems to be flitting from one scandal to another. Indeed, the last two months have been particularly boisterous in terms of the controversies courted.

First, there was Justice Ganguly and a devastating blog post by a law intern. Then came the “lacerating” Tarun Tejpal. Followed soon by the Supreme Court’s abominable criminalisation of homosexuality. The Devyani Khobragade scandal had most of the nation up in arms against an

apparently Janusian superpower. As one navigates these issues, one cannot help but recall the Bard’s sagacious sentiment in Macbeth : “Fair is foul. And foul is fair.”

The Ganguly case

Indeed, what is fair to some is foul to the others. And therein lies the issue. More problematically, however, our notions of fairness appear to be predicated solely on the law, with commentators arguing endlessly about whether there was any “legal” violation or not. Few people have dug deeper into the underlying socio-cultural malaise that triggers such issues in the first place. Fewer still have resisted the black versus white frame and moved beyond to explore the fuzzier shades of grey. Till such time as those in positions of power view the Ganguly incident as that of an otherwise excellent judge getting drunk, making an advance and failing (no big deal), we can never hope to really achieve gender justice and safety for women, which is really why the law was made in the first place. After all, if the sordid narrative in the intern’s affidavit is true, then this was not merely about the freedom to “court” (the age difference notwithstanding), but also about a serious asymmetry of power where a senior judge induces a young intern to walk into his hotel room as a “legal secretary,” share his drink and then proceeds to touch her inappropriately a couple of times, despite her giving out a clear indication that she was uncomfortable with this egregious invasion of her space.

On the other hand, should our media be permitted to condemn a man before his guilt is established in a court of law? Or does a prima facie finding from a Supreme Court committee suffice to merit this public condemnation? And if this public shaming has some deterrent effect, should this be factored into sentencing, when he is finally found guilty? But a more fundamental question needs to be posed: would punishing him through prison incarceration and the like obliterate deep-rooted cultural prejudices and the headiness of power that inform many in his position? And if not, how then do we reform the law to induce such internal reform?

After all, even though our genetic imprint may continue to bear a primal urge for retribution, we should do better through the law. How do we ensure that Justice Ganguly (if found guilty) internalises this gender justice norm and refrains from transgressing this sacred space in future. Unfortunately, the public debates engendered on this issue have not even touched on this aspect.

Diplomat and the help

Similarly, with Ms. Khobragade, we need to ask: is there a right to a “maid”? If it is too expensive to maintain one with decent “wages,” perhaps we ought to do the work ourselves? However, if the government of India thinks that its public “servants” abroad are entitled to one, they should pay for it, at rates considered lawful by the country in question.

Secondly, why should the law continue to privilege this superior class of “immune” diplomats? What lofty societal purpose does it serve? A blind adherence to the law simply sees us arguing endlessly on the diplomat vs consular distinction, prompting the Indian government to simply requalify her as a “diplomat” to enjoy the immunity retrospectively. How delightful!

And lastly, the retaliatory measures by India in removing security around the U.S. embassy premises. We now have legal eagles splitting hairs on whether or not such retaliatory measures are permissible under international law. Blissfully forgetting that we are a nation whose “father” once famously said: “An eye for an eye makes the whole world go blind.”

On the other side of the fence, however, we need to ask: was the response to this alleged felony (visa fraud in which both parties were complicit, and failure to pay the minimum wage) in terms of handcuffing and strip-searching proportionate? Why should a diverse range of “illegal” acts automatically answer to the charge of “crime,” with all its attendant public shaming consequences, without regard to the nature and gravity of the offence?

Section 377

Vikram Seth exemplified this sentiment so powerfully in a recent “criminal” cover in India Today , taking issue with the Supreme Court’s treatment of some kinds of love as more equal than others. In an unfortunate outlier of a decision, the court abdicates its constitutional duty to protect a minority against the tyranny of the majority, relying instead on the sanctity of a sanctimonious Victorian law that drew a problematic distinction between the “natural” and the “unnatural.” The court effectively unleashed a decision that was more political than legal, failing to convince even within its own narrow frame of judicial restraint.

In the end, those searching for answers within the four corners of the law are setting themselves up for failure. For the law is severely limited and these are part of a wider ecosystem of issues that are best resolved through a more holistic approach. As we tread into the New Year, let us begin to view the law as not an “end” in itself, but as a mere spoke in the wider societal wheel, a spoke requiring constant re-evaluation and recalibration. That might well be a good start towards appreciating that relativity applies not just to light but also to notions of fair and foul.

(Shamnad Basheer is Ministry of Human Resource Development Professor of Law at the WB National University of Juridical Sciences, Kolkata.)