A land of elusive evaders?

By: V Sundaram
September 04, 2005
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I understand from the newspapers that Jothi, the AIADMK MP, in his letter to the Chairman of the Rajya Sabha has stated that the appointment of Mrs. Nalini Chidambaram as Special Counsel on behalf of the Income tax department was not `accidental` but was `made to appear so` in the IT cases though there was the standing availability of K Subramaniam, the former chairman and settlement commissioner who was already on the panel of IT Department Counsels.

Besides, according to Jothi, the IT Department also strategically ignored the presence of an Additional Solicitor General in Chennai. He has further alleged that two IT cases, in which one K Subramaniam (who was already in the panel of IT Counsels) was expected to appear were specially transferred to Mrs. Nalini Chidambaram by the IT Department. He has alleged that Mrs. Chidambaram lost both the cases resulting in great loss of revenue to the Income Tax Department and corresponding gain for the spinning mills. In this context he also said that Karpagambal Mills at Rajapalayam in Tamilnadu is being run by the eldest brother of the Finance Minister.

Whatever that be, it is not disputed that the husband is the Finance Minister, and that his wife represented the Income Tax Department in two legal cases and `conveniently lost them`. If it is not a case of legal bad faith, it cannot be denied that it is not a `classical` case of political good faith. In the nationally insignificant context of my humble attempt in trying to analyse the exemplary ministerial conduct of P Chidambaram, the impeccable conduct and impartiality of the Chairman of the Board of Direct Taxes and his officers, and above all the unsurpassed professional competence, probity and fidelity of Mrs. Nalini Chidambaram, I cannot help quoting from a speech of Lord Moulton, a very great British Judge, eighty-one years ago. In June 1924, John Fletcher Moulton (Lord Moulton), speaking on the subject of `Law and Manners` observed for all mankind (the above three VIPs not excluded) as follows:

`In these dark days tyranny is yielding to the lust of the governing. It is often forgotten that there are three great Domains of Human Action. First comes the Domain of Positive Law, where our actions are prescribed by laws binding upon us which must be obeyed. Next comes the Domain of Free Choice, which includes all those actions as to which we claim and enjoy complete freedom. But between these two, there is a third large and important Domain in which there rules neither Positive Law nor Absolute Freedom. In that Domain, there is no law which inexorably determines our course of action, and yet we feel that we are not free to choose as we would. The degree of this sense of a lack of complete freedom in this domain varies in every case’.

‘It grades and ranges from a consciousness of a Duty nearly as strong as Positive Law, to a feeling that the matter is all but a question of personal choice. Some might wish to parcel out this domain into separate countries, calling one, for instance, the domain of Duty, another the domain of Public Spirit, another the domain of Good Form; but I prefer to look at it as all one domain, for it has one and the same characteristic throughout it is the `Domain of Obedience to the Unenforceable`. To my mind, the real greatness of a nation, its true civilization, is measured by the extent of this land of obedience to the unenforceable’.

Lord Moulton was of the view that ethics can be understood as `obedience to the unenforceable`. Law, by contrast, is the `enforceable`. Law comes with regulations, compliance, and judicial structures to penalise violations. Ethics, by contrast, involves the broadly accepted but unenforceable canons of a culture, the core values, abiding principles, and commonly held attitudes and conventions that lie beyond the reach of the law. Where ethics says, `Please don`t, because you shouldn`t,` law says `Don`t, or else`! Law enumerates specific penalties. Ethics operates in a more ambiguous realm, where the violations are against intuition rather than legislation. What Lord Moulton suggests, then, is a framework for analysing two sorts of restraints in our culture: self-regulation and imposed regulation. Self-regulation is ethics. Imposed regulation is law. The boundary between them can be fuzzy. Law, to be effective, requires a general ethic of responsibility. Ethics, in turn, undergirds law. But the two are broadly different, so much so that the commonplace assertion, `Well, if it ain`t illegal, it must be ethical,` is a hopelessly false muddling of these two distinct ideas.

When Mahatma Gandhi was the supreme Congress leader in the days of our glorious struggle for freedom, he insisted on `obedience to the domain of the unenforceable`. By stark contrast, under the supreme leadership of Sonia Gandhi today, the Congress Party has a total and indivisible contempt for the principle of `obedience to the domain of the unenforceable`.

Lal Bahadur Sastri in the true Gandhian tradition took full and total responsibility on his shoulders for the railway accident at Ariyalur in Tamilnadu in the 1950’s and resigned his post as Union Minister for Railways, even though he was in no way personally responsible for that accident. The comic situation today is that Chidambaram is being defended by the Chairman of the Board of Direct Taxes for the appearance of Mrs. Nalini Chidambaram on behalf of the IT department and Chidambaram is pleading complete innocence in this whole affair. The nation is only questioning the participation of Mrs.Nalini Chidambaram in a court case relating to Finance Department where her husband happens to be the Union Cabinet Minister. Will the same leeway be available to all the public servants in India under the supreme protection of the de jure Prime Minister and the super protection of the de facto Prime Minister?

Chidambaram spoke very eloquently in the Lok Sabha when he defended the decision to order a CBI probe against Arun Shourie, former Disinvestment Minister in the NDA Government. His sparkling political eloquence was of course missing when he tried to defend in the Rajya Sabha the appearance of his wife in the IT cases. Even assuming for a moment for the sake of good form that the Finance Minister was not aware of the fact that his wife was appearing in his departmental cases, it is not possible for the public of India to believe that the Chairman of the Board of Direct Taxes and the Commissioners of Income Tax working under him were unaware of the fact that Mrs. Nalini Chidambaram was the wife of P Chidambaram, the Finance Minister of India. The Chairman of the Board of Direct Taxes should have taken absolute care not to ignore the time-honoured dictum: “Caesar’s wife must be above suspicion”. If Arun Shourie is not above the law and he can get no reprieve from the due process of law, Chidambaram, the Finance Minister, cannot also claim any special exemption in a country where politicians are very fond of saying in regard to their political opponents that `the law will take its own course`.

If that is so, the nation expects the Prime Minister (of course with the full consent of the omnipresent, omnipotent, omniscient and de facto Prime Minister) to allow the law to take its own course and to refer this case also to the CBI for conducting a thorough and impartial enquiry into the whole affair in the larger public interest. By completely protecting the Finance Minister against the background outlined above, Manmohan Singh has declared to the country and the world that the UPA Government does not believe in the `rule of law` but only in the `rule of tainted men` like Lalu Prasad Yadav, Sibu Soren and a few others possibly in waiting for this kind of high honour!

The tragedy is that the noise in Parliament will die down with the Session coming to an end. Some more noise in some political platforms could be heard for some days when a few people might even clap enthusiastically. When another issue comes to the fore, this issue will be forgotten by one and all. But the fact remains that the motive behind the act and the benefit derived by vested interests at various levels in an organized and orchestrated manner will have a definite and long lease of life with the full blessing and benediction of the powers that be.

In my view, we face a crisis of the spirit. Its resolution far transcends the power of the State; it is a crisis too important, too far-reaching, to be resolved by mere governmental action. Its resolution, rather, is in our hands, the myriad millions of India. The future of our country, our future happiness and that of our children, depends decisively on whether we as individuals and as a people are willing to practice cheerfully `obedience to the domain of the unenforceable`.

V Sundaram

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