Sunanda K Datta-Ray: How laws in India become malleable

Who enforces the laws often determines how effective they will be. In India, the laws are often enforced by those whose hands can be greased easily

The furore over Vijay Mallya flying off to London, where Lalit Modi had already escaped, recalls a conversation in Singapore with an Indian holding forth on India's moral superiority over China. "We are governed by the rule of law," he boasted, to which a Chinese-Singaporean asked quietly, "Who makes laws in India?" In the silence that followed, the Chinese-Singaporean pushed on, "Who enforces those laws?"

Who indeed! To suggest anyone other than an honest-to-goodness desi who won't any longer expose his knobby knees, bow legs and spindly calves in baggy shorts would be seditious, anti-national and unpatriotic. It would be as objectionable as chanting "Jai Hind!" instead of "Bharat Mata ki Jai!" Or the ultimate anti-Indian crime of demanding "azaadi" from fear, superstition and discrimination. It would be worse than protesting that a licence to spy and snoop cannot masquerade as a Money Bill to circumvent parliamentary objections. Indeed, protest is seditious, anti-national, unpatriotic and anti-Indian unless it's against something seditious, anti-national, unpatriotic and anti-Indian like beef, Valentine's Day or church service.

Many argue that only tough laws can solve the problems Mallya and Modi pose. Jawaharlal Nehru asked colleagues to do something ("Thoda kuch de do") for Jayanti Dharma Teja only because the law didn't forbid such requests. As a result, Teja's shipping company hoodwinked the Japanese and Norwegians out of fortunes while he jet-setted between his villas in the south of France and Geneva, with halts at New York's Waldorf Astoria hotel, until his buddy, Jose Figueres Ferrer, president of Costa Rica, provided him with home, job and a diplomatic passport.

If Ram Kishan Dalmia, Harshad Mehta, Abdul Karim Telgi or B Ramalinga Raju defrauded people only because the law didn't stop them, it means Indians are instinctively and chronically dishonest. Presumably, Haridas Mundhra wouldn't have become bankrupt if the National Democratic Alliance government's Insolvency and Bankruptcy Code, repealing the Presidency Towns Insolvency Act, 1909, and the Provincial Insolvency Act, 1920, and amending 11 other laws, had existed in 1973. Can we, therefore, now expect the amended Benami Transactions (Prohibition) Act to expunge India's vocabulary of a word that signifies a whole way of doing business?

Literally, benami means "no name". There's no precise equivalent in English because the concept is utterly alien to the ethics of the English-speaking world. Indian flexibility allows a man profitably to divest himself of his worldly goods. The businessman who railed at the perfidy of relatives, who refused to return the shares belonging to his client that he had lodged in their names, was lacking in ingenuity. He could have gained additional merit and the piety of a sebaiyat by transferring those shares to some of the 330 million deities the scriptures identify.

Religious orthodoxy isn't at fault. Teja, one of India's first big-time scamsters, belonged to the reformist Brahmo Samaj. So does Rajat Gupta, who was scheduled last week to take off a US court-imposed ankle bracelet. Brahmos are believed to be so puritanical that when the legendary pioneering educationist, Heramba Maitra, was asked in the street for directions to the Star Theatre, which enjoyed an unsavoury reputation in those days, he retorted, "I don't know." Overcome with remorse at having lied, Maitra ran after the enquirer to add, "I know but won't tell."

No one who has ever experienced our lower courts will disagree with Penderel Moon, the scholar and ICS officer, that Anglo-Saxon jurisprudence is unsuited to Indians. It's not only that concepts like legibus solutus (the sovereign's immunity) or habeas corpus (you should have the body) are incomprehensible to the bulk of our countrymen. What is far more dangerous is that the clever few twist and exploit British statutes in ways the authors could never contemplate.

The sanctity of the rule of law is not exclusively European. To quote the Brihadaranyakopanishad, "Law is the King of Kings, far more powerful/ and rigid than they; nothing can be mightier than Law,/ by whose aid, as by that of the highest monarch,/ even the weak may prevail over the strong." But as my Chinese-Singaporean friend would have observed, the forums where the law is enforced are manned by Indians.

He would have chuckled if he had known that Teja, too, escaped amid a flurry of acrimonious charges. The passport and income tax authorities accused each other of collusion. New Delhi blamed Pan Am. Pan Am blamed Air India. The home ministry and the Prime Minister's Office were not above suspicion. The rules were written in black and white. Implementation was in hands that could be greased.