Triplet 8

'The Moral Structure of Universe': Dr Martin Luther King's vision and its corollaries

By Shiva Kant Jha

February 20, 2009

IT is great that we commemorate this year Dr Martin Luther King's 1959 India journey to study Mahatma Gandhi. In his address on the All India Radio in March 1959 his resonating voice articulated his edict of faith which time has not made stale; rather the plight of mankind world over has rendered it most imperative and timely for peaceful and just life of people. He had said:

“…..May I also say that, since being in India, I am more convinced than ever before that the method of non-violent resistance is the most potent weapon available to oppressed people in their struggle for justice and human dignity. In a real sense, Mahatma Gandhi embodied in his life certain universal principles that are inherent in the moral structure of the universe, and these principles are as inescapable as the law of gravitation….”

It is obvious to any discriminating person to see that the political ideas wrung from the operative political realities of the 18th to the 20th centuries have controlled, cabined and confined the prevailing juristic thinking. The political structure and its operational protocols have begotten juristic positivism of which John Austen and Hans Kelson are the leading lights. For the analytical jurists a legal provision is structured in “if-then” format: if ‘x’ is done, then ‘y’ is the consequence. This legal ‘ought’ is seldom considered worth being moderated by moral, or even, ethical ‘ought’. Law becomes a mere exercise in logic. Bertrand Russell once said: ‘the Satan will speak in their hearts with the voice of God.’ The western oeuvre proves, most so in John Milton’s Paradise Lost, that the greatest logician that the West has yet produced is Satan, and his lieutenant Mephistopheles. We see that legal ‘ought’ is most often in an obvious dissociation with moral ‘ought’. A reaction against this approach led to the growth of functional approach to law theorized ably by Dean Roscoe Pound.

But the ends of justice are served only when the administration of justice makes a constant endeavor to approximate more and more to the grammar of the moral structure of the universe. Under the Hindu jurisprudence this triumph of the moral structure is illustrated by the concept of ‘Dharma’. It must be recognized that the law and the constitution are needed to discipline only the demonic people. Krishna explained the ways how the demonic people behave, and he instructed ways how they should be dealt with in order to protect society. He had no reasons to segregate his ideas from the then spatiotemporal complex, but we can easily discern the norms governing that intersection of human affairs which comes within the province of ‘polity’. Under such an intersection befall the following problems needing solutions:

(a) how to tame Power so that none can turn into a demigod;

(b) how to ensure Justice in all the spheres of social existence which come within the frontiers of polity and governance;

(c) what sort of philosophy should govern our relationship with the resources including Property, and how to control greed and lust so that public welfare is not frustrated;

(d) how to ensure Equality amongst the humans in all matters essential for security, survival, peace and justice;

(e) how to ensure Freedom from Fear even to the point where our citizens can resolve, as Arjuna had done. “neither servility to anyone, nor abdication of the role which we consider just”;

(f) how to create conditions under which all can perform their Kartavy-karma in to realize a just order.

The Islamic jurisprudence too has a profound vision of the universal moral structure. In Jilani v. Government of Punjab [Pak. L.D. (1972) SC 139:

Despite the sway of the positivists in the West, many outstanding jurists have boldly adhered to the Christian moral values. One was Lord Denning of the U.K and the other was Earl Warren who headed the US Supreme Court in its most critical years.

It is this vision of the moral structure of the universe, to which King referred in his speech in1959, that got a resonant expression in his celebrated speech, "I Have a Dream", delivered on 28 August 1963 at the Lincoln Memorial, Washington D.C. Earl Warren put an end to the racial discrimination by delivering his Brown v. Board of Education 347 U.S. 483. It was a milestone in the social revolution to free the people from unjust fetters ( of which the election of Obama as the U.S. President is the crowning fruit of a great social revolution). Bernard Schwartz said that his Warren’s trip to India in the summer of 1956 had a” decisive influence…could be compared only with Woodrow Wilson’s tumultuous European reception in 1919.” I think Earl Warren’s visit can be compared with Martin Luther King’s visit for light and delight.

But while I write the above I do so with an iron in my soul. Gandhi is now in our country almost forgotten. He is used now for advertisement only. Now the Mahatma laughs at the currency notes, but is downcast on gazing at us in the Supreme Court campus! Standing under the shadow of the Lincoln Memorial, Washington D.C., King was on his wings, but standing under the shadow of Gandhi’s bust one droops to discover what went wrong and where.

II

The Fruits of Crimes: A Quest for Remedies

IN the first leaf of the Legal Potpourri of February 06, 2009, I had an occasion to reflect on the decision of the Madras High Court in CIT v. K Thangamani [2009-TIOL-48-HC-MAD-IT] which had held the quantum of bogus refunds taxable as income in the hands of the proximate beneficiary of the crime. A reader wants me to state my position with greater clarity for practical guidance of those concerned. In deference to this wish, I set out the possible options for the Revenue while dealing with the fruits of crimes, the source of which is not under dispute. The possible options worth being explored by the Revenue are the following:

The facts of the case are summarised by an expert thus:

“The defendant, Eugene James, was an official in a labor union who had embezzled more than 8,000 in union funds, and did not report these amounts on his tax return. He was tried for tax evasion, and claimed in his defense that embezzled funds did not constitute taxable income because, like a loan, the taxpayer was legally obligated to return those funds to their rightful owner.”

This Judgment is worth study as the Chief Justice Warren, the greatest Judge of the US Supreme Court after the legendary Chief Justice Marshall, had examined the provisions analogous to Section 5 of our Act, and led the majority in delivering that insightful judgment..

(ii) The Revenue’s course in civil or criminal prosecutions is always difficult. Such proceedings must be discreetly initiated and intelligently conducted. The factors which have chronically embarrassed the cause of the Revenue are very briefly summarized thus:

(a) The Assessing Officers are not generally well versed to have a clear comprehension of the relevant civil and criminal laws to gather and analyze the facts of a given case in the assessment proceedings to gather sufficient materials to meet the ingredients of the offenses and defaults.. They should be properly exposed to the Art of Cross-Examination. This art helps one in gathering materials , in ascertaining their veracity, and establishing their cogency for determination of the involved issues. Anyone who wants to have some comprehension of this topic may see “Art of Cross-Examination” by late Nageshwar Prasad, Sr. Advocate of Patna High Court (a Judge of Patna High Court in the pre-Constitution days) [vide at http://shivakantjha.org/openfile.php?filename=articles/cross_examination.htm], which he had delivered in the gathering of the Income-tax Authorities in 1969. But what is most worrisome is that these days the working-pattern of the Assessing Officers has become so routine, mechanical, and stereotype that even the ablest of them find no opportunity to develop such skill, and to keep on honing that with passing years. If they become mere Sisyphus put to routine drugery then, the Revenue can have in them a mere rocking-horse, not a Pegasus. Art of prosecution requires industry, skill, and to crown it all, a genius to see the end of the case at the theshold!

(b) Though a penalty proceeding for concealment of income is a proceeding separate from the assessment proceeding, yet an adverse decision in this tells adversely on the prosecution as the burden of proof to establish actus rea and mens rea are stiffer in the prosecution proceedings than that in the penalty proceeding. Hence, there should be proper marshalling of facts and presentation of law in support of case in the penalty proceeding also. Most often, the appellate authorities, especially the first appellate authorities, do not make out the Revenue’s case as they tend to labour under an erroneous notion that they decides issues in adversarial proceedings ( as in the courts).

(c ) Administrative decision to launch prosecution in appropriate cases is most often much delayed. The rogue, who has no case to make out, plays all his cards to cause delay at each point. Delay always helps the rogue. A story goes: some senior lawyer asked his devil to work on a client’s case where defence was weak. . The junior did his best, but could make out no case to take his client off the noose. In the end, his senior told him: “Your client has no case. The only way left is to DELAY IT.” The junior was nonplus: he asked him: “How can that help?” The senior said; “The witnesses may die or may not be available; the prosecutor may lose his verve, or might get fatigued; evidence may get lost; some straw to float with may come within his grasp from some judicial ruling; the client can die or become bankrupt, and the proceeding may abate or become infructuous….. Only gains, no loss for the clients, (with chuckle) and for us in the robe.” This story has a lesson that should get drummed into the ears of the custodians of public Revenue. They must be on the guard.

(d) The most worrisome problem for the Department has been deficient legal infrastructure. The problems to be faced in the civil and criminal courts are many. Most judges are so innocent of accounts that they are to be taught even elementary book-keeping. The provisions of the tax laws cause tedium, and baffle their wits. It is really difficult to break the psychological barriers from which most people suffer. The drudgery in conducting the prosecution is enormous. The officers often have neither time nor inclination for such a job. And lawyers are not up to it for reasons unwise to recount in this short account. When the Income-tax Department had a counsel like Nageshwar Prasad to appear before the District Court at Patna as the Department’s conducting counsel (with an able assistance of the AO), the Department’s prosecution for clear concealment of income was a thumping success reminding one of ………. It is for the Revenue to hold an inquest why prosecution for tax scams is so successful in other countries, and why our performance is dismal. Will it ever happen? Till then it is delight for the rogues, and discomfiture for the Revenue.

III

Attitudes towards taxation

DELIVERING his Hamlyn Lectures 1n 1981 H.H. Monoroe had made an observation with insight. He said:

“If social attitudes to evasion are tolerant, judicial attitudes to avoidance are ambiguous. Inevitably one judge will emphasize the citizen’s right to arrange his affairs within permitted legal limits to avoid the incidence of tax……”

It seems that the attitudes towards taxation continue to remain what they were once upon a time when the ancestors of Gilbert had wished his descendants to do in W.S. Gilbert’s Ruddigore..Sir Ruthven Murgatroyd, Bad Baronet of Buddigore, is cross examined by his ghostly ancestors. Has he discharged obligation under the Witch’s curse to commit a crime a day?

“ROB. Really, I don't know what you'd have. I've only been

a bad baronet a week, and I've committed a crime punctually every day.

SIR ROD. Let us inquire into this. Monday?

ROB. Monday was a Bank Holiday.

SIR ROD. True. Tuesday?

ROB. On Tuesday I made a false income-tax return.

ALL. Ha! ha!

1ST GHOST. That's nothing.

2ND GHOST. Nothing at all.

3RD GHOST. Everybody does that.

4TH GHOST. It's expected of you.”

Dr. Johnson had once defined Excise in his Dictionary as “a hateful tax levied upon commodities, and adjudged not by the common judges of property, but wretches hired by those to whom excise is paid.” Noting this definition of Excise, H.H. Monroe comments: “The same would in due course, and was, said about odious officers of Revenue.”

But we thought in our democratic ethos of our days things have changed. For bringing about an egalitarian and welfare society taxation is essential. This is what made Holmes consider the tax-payment a sacred duty: he said ‘ it is the price for the purchase of civilisation’; and Sir Leo Money encored it by saying: “I like to pay taxes. With them I buy civilization.” But, in reality, for reasons well known to us, we have not been able to scale that height. Rather we have descended to the level whereon a former Attorney General (Mr Sorabji) could write in the press (The Indian Express of 12-10-2003) with evident barbs:

This would have surely delighted Sir Ruthven of the Ruddigore..

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