Equality before Law

Murali Karnam

Sanjay Dutt has been released on furlough from prison. The regularity with which he has been out of incarceration has surprised many. The questions about the rule of law and of partisan treatment given to him have been raised once again. The government has ordered a departmental enquiry to look into the questions of a misplaced priority and deviation of equality before law in releasing him. The whole issue has also been seen by many as the violation of right to equality before law of the obscure prisoners, who are waiting for release.

The popular understanding of equality before law is very narrow and linear. It confuses the ideal expectation with a possible reality. The government, which can clearly distinguish between what is ideal from practical reality, plays its game of political legitimacy. The entire frame of debate demands the presumption that all the prisoners, for that matter, all citizens in practice are equal before law. Equality before law of all citizens is one of the political claims of all the liberal modern states and societies. The notion of equality in practice is trimmed down to legal process of handling the claims of citizens by governments. The fact that to stake one's claim before the law, one requires enormous economic and social capital, which is often underplayed or ignored completely.

Those who are endowed with such resources can also access the official information about their entitlements and the process of claiming it the moment they are declared eligible for it. Let's suppose Sanjay Dutt is eligible for release from a particular date. He would know about it well in advance through his legal advisors because, he can afford them, they have access to prison manuals and the officials are willing to provide it. Apart from the biases of bureaucratic machinery, the ruling elite across the political divide often is on the side of the privileged.
Law requires the reasons for release to be verified and also police reports on the potential threat to the offenders when released. The process of police verification in case of ordinary prisoners, left to itself, will take months and even years. After all most offenders are not Sanjay Dutt! Besides, the entire process consumes energy, money, perseverance and legal expertise to deal with bureaucracy at different stages of verification. It also requires invoking powerful political links, which are far beyond the reach of most of the prisoners whose social and economic status has already been devastated in the process of criminal prosecution.

The legal advisors and well-wishers of the actor must have got the entire process of verification completed well before his date of eligibility for release. The disproportionate percentage of Dalits, Scheduled Tribes, Minorities, social dropouts and property offenders among the prisoners tells this unjust story. This story is of working of criminal justice system against the underprivileged, which has been acknowledged by the Supreme Court. The impact of social and economic inequality on the principles of legal right to equality is consciously ignored. As the liberal society and state cannot afford to remember them and yet claim political legitimacy. The multi-layered understanding of right to equality cannot be accommodated by the trimmed down legal process, which crudely tells an ordinary citizen 'access me if you can'. The government plays a mere role of night watchman between the privileged and the marginalized in the age of neo-liberalization.

What will this inquiry into the release of Sanjay Dutt serve? There would be two kinds of outcomes from the enquiry: one is that since the process of legal verification has been completed in time for the actor, he has been released as per the law; second, if the report proves some partisanship by the state, that would be considered as one time deviation of practice of equality before law. But both the outcomes will serve the same purpose: reinforcing the myth that the ideal of equality before law has always been followed by the government. The seamless nexus between the socially privileged and the politically powerful enables mutual reinforcing of their interests beyond the ideal of equality before law is conveniently ignored.

Vol. 47, No. 30, Feb 1 - 7, 2015