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When the police arrived at the scene, they found hundreds of people throwing stones at a shopping mall called Big Bazaar, a retail venture owned by a private concern. Protesters then started attacking the police officers, particularly one woman police constable. The officer was assaulted and manhandled by the protesters.
This incident happened in full view of the media. Video and pictures of the incident were broadcast the same evening and printed in the dailies the next day.
The protestors were arrested and taken to the Cantonment Police Station with jurisdiction over the area. Within minutes of their arrest two senior ministers, Minister of Revenue K.P. Rajendran and Minister of Civil Supplies C. Divakaran, went to the police station along with CPI-M Party Secretary Veliyam Bhargavan and forced the police to release the detainees.
The government however denied this illegal act of the ministers and even issued a statement saying they went to the police station to meet the party secretary. A writ petition has now been filed at the state High Court challenging the ministers' misuse of office.
A fundamental question haunts anyone who believes in democracy, the rule of law and constitutionalism: How could persons holding authority under the Constitution use their office to intimidate law enforcement agencies? The constitutional duty of an elected government representative is to serve the people. Serving the people obviously includes a commitment to promoting democratic institutions and their functions. The state police are one among many such institutions.
Being a minister does not make one immune to the constitutional mandates and the law of the land. Had it been an ordinary person who approached the local police to threaten and bully the officers into releasing a bunch of rowdies, how would the police have treated such a person?
Intentional interference with the duty of a government servant is a crime. When the interference concerns the police, in India the person also runs the risk of being assaulted. Then why were the ministers and the party secretary treated differently?
A few months ago the president of Sri Lanka interfered with police and also with a local magistrate when the son of a minister in that country was arrested for assaulting another person in a bar with a pistol. The president of Sri Lanka is not held in high esteem for various reasons, and his action was condemned both inside and outside Sri Lanka.
The ministers in Kerala are not much different from Mahinda Rajapaksa on these counts. It is trite to say that internal security in Sri Lanka has turned from bad to worse after Rajapaksa assumed power. Can India be different?
Intentional destruction of private and public property is a crime in India. If so, why are cadres of the ruling party allowed to interfere with the due process of law in such a case?
A current estimate says that some 64 percent of all prisoners awaiting trial in Kerala would have already served their terms in custody had they been convicted of the offenses for which they are being held. In such a state, why is it that the government pays so much attention to the party cadres?
Last year, a division bench of the Kerala High Court ordered the state government to release all prisoners awaiting trial who had already served the time in custody merited by their alleged crimes. The Supreme Court of India has also confirmed this view. What makes the CPI-M cadres different from the prisoners awaiting trial?
In the past -- and even as one reads this -- ministers and influential persons have been illegally interfering with government business in India. But most of them do it clandestinely; that is what governance is often about in India. Had these things happened in any reasonably established democracy, with a well-functioning legal framework, the ministers and their political careers would be history. In India however, such actions could carry their careers forward.
In South India there is a saying -- one should not scratch one's back with a lit torch. What the ministers in Kerala did is exactly this. Now that they have set a precedent and the matter is in the court, it is up to the court to decide the issue. But whatever the court decides will ultimately remain in bound volumes of legal journals.
At least the decision of the court in this case, for better or worse, will be a contribution toward jurisprudence. In this India is rich. Indian democracy and rule of law are good in theory but dead and putrid in practice.
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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
