AUGUST 11, 2003

By Shiva Kant Jha, Former Chief Commissioner of Income Tax & Advocate

IT is appropriate to take a notice of the realities fast emerging from the womb of time. The globalization has spawned a new style of corruption. Before it whatever was earned from improper sources was kept in the country itself. Because of mass communication, information technology, and closer interactions in matters of commercial dealings, the fruits of corruption are gathered and amassed more often outside the territorial jurisdiction of India. The FIIs, the MNCs, and the OCBs, through their rich band of lobbyists provide a very stable system to indulge in corrupt practices on global basis. A country's vigilance commission is totally outdated. The experts are in plenty to function as their fund managers investing such resources in movable or immovable property from the north pole to the south, perhaps exploring ways, if technologically feasible, to transmit the bags of ill-gotten wealth in some vaults in the Sea of Tranquility on the Moon or some other Planet.

The profile of the political structure of the world would show that it consists of sovereign States at different levels of political integration, socio-economic attainment, socio-political morality and cultural moorings.. Some of them have vast potentialities of development whereas many others have not much scope on account of poor natural and human resources. The countries less endowed with resources are ironically more prone to assertion on the plea of their sovereignty. Many of them tried in varying measure to turn their countries into spheres of darkness where the possessors of the ill-gotten wealth can find best places to keep un-noticed by those who are swindled or whose duty it is to bring the criminals to book. Many of such states are the Members of United Nations and are the recognized players, because of their sovereign status, in international politics. They do not have much effect in shaping the reality of international politics but they, as recognized players, can provide assistance on account of their voting numbers. This situation has to be taken as a fact of the present day international relations.

The modern technological advancement, especially in the field of information technology has broken all barriers in transmission of information, and has opened up the limitless possibilities to violate law and to amass wealth shrouded in secrecy. It is a misfortune of human society that whenever great fruits of science are available to better our lot, crooks and knaves emerge in plenty to use them for their ends. Now the global interactions have opened up infinite possibilities for restructuring global economy. In this restructuring the voice of common people worldover is very feeble; the voice of the common people in the developing countries is evidently virtually mute. The powerful players emerge as the key-operators in global economic structure. They build their power centres. As financial providers they control the sinews of many governments. They promote their policies through an intricate, deceptive but accurately efficacious system of patronage whereby a powerful constituency of supporters is created amongst the senior bureaucrats and politicians.

Hired intellectuals and the shady lobbyists mushroom to convince more and more persons who matter that globalization, and whatever goes by it, alone can do good for the society. Chances of detection of crimes in financial dealings have become so remote as to make it impossible to insure punishment, not to say quick punishment. Communications are so fast on our earth and in the space that ill-gotten wealth can quickly move to the tax havens and many other destinations where nothing matters except financial gains. This is an emerging world where the vigilance machinery would become substantially redundant because the payments for remissness would be made at remote places far from the jurisdiction of the States where they work. It is not a mere feat of wild imagination to think that in this globliased world vaults would be opened even on the hundreds of islands for keeping the fruits of corruptions till ways are found to funnel them into the regular economic system for which legal regimes have already been tailored.

On browsing the present scenario it is clear to find that judiciary is the only institution which in this so-called global world can ensure justice to the common people. This institution in all the great countries of the world goes on : "At the whirring loom of Time unawed I work the living mantle of God."

This is so because Judiciary worldover functions under one loadstone, moves towards the same morning star, realizes in varying degrees the same goal which we call justice. Judiciary appears to be the only institution which by and large functions under discipline and accountability. It is not difficult to see that the great judges have in their consciousness not only the years of their tenure but even the decades and centuries over which they would be referred and evaluated. No other institution in the world is so much conscious of the facts that it is on trial before the bar of history as this institution. It has the inner discipline and the inevitable urge to rise to excellence because the interactions of the various judicial systems world over generate the powerful sense of accountability on account of evaluation by the Bench and the Bar of different countries.

These days by and large the world has two broad legal systems, common law and civil law. On fundamentals they all converge. The immanent judicial policy is to do justice, to frustrate fraud, to prevent unjust enrichment, to enforce transaction in good faith, and to see that wrongs are not done causing wrongful gains to the unworthy. These golden threads are the real threads with which over the loom of time the majesty of justice proceeds working out imagery and metaphors revealing that this is the best that humans can do as they are now. It is for this reason that even a man on gallows has the serenity because of this catharsis.

Administration of justice without commitment to certain values is inconceivable. This is as truer of common law as of the statutory interpretation. The purposive approach to the statutory interpretation is most conducive to this. W. Friedmann correctly points out "The clash of values and interest, the conflict between different judicial approaches, is no less marked in the interpretation of statutes than is in the common law." The moral imagination which worked to produce Rylands v. Fletcher and Donoghue v. Stevenson , and works underneath the operation of ‘les principes generaux du droit.'

In the global juristic architecture jural and moral imagination would work under a creative synergy otherwise the forces of the corruption which the political structure in most States can not prevent because of its fragility and porousness may make the world for crooks to thrive holding political institutions under their thralldom.

In the end we must always bear in mind what Lord Krishna said:

uddhared atmana'tmanam;
Na'tmanam avasadayet;
atmai 'va hy atmano bandhur;
atmai'va ripur atmanah.

(The views expressed are strictly personal)