Godman In The Dock

The arrest of Jayendra Saraswati, the Shankaracharya of Kanchi Peetham hasraised several legal and political issues. The media’s interest in the case,which has kept it continuously in the headlines, is partly due to the fact thatit is the first time that a Shankaracharya has been arrested, and on suchserious charges as conspiracy to murder. While self confessed and exposedbrokers and wheeler dealers masquerading as godmen such as Chandraswami andPremanada and their ilk have been arrested earlier, this is the first time thata person, regarded by many as a real man of God has been arrested. That alsoexplains the attempt of an issueless and floundering BJP to make politicalcapital out of it.

The Sangh Parivar have charged that the case against Jayendra Saraswati isbogus and his arrest shows that pseudo secular forces are trying to humiliatethe Hindus. While making this charge, Togdia, Advani and other leading lights ofthe Parivar made it very clear that they were not interested in the evidencethat the police had collected against the Shankaracharya. Starting with theletters of the murdered Sankararaman to the Shankaracharya threatening to exposehim in court (which establishes the motive), to the large sums of moneywithdrawn by the Shankaracharya to pay the hired hitmen, to the number of callsmade from the Shankaracharya’s personal mobile to the hitmen shortly beforeand shortly after the murder, the evidence collected by the police before thearrest was quite impressive. 

And now they claim to have a videotaped confession of the Shankaracharya tohis role in the murder during police interrogation. But all this is dismissed bythe Sangh parivar as concocted. While making the charge of pseudo secularism,they also conveniently ignore the fact that the arrest has been ordered not bythe Congress government, but by Jayalalithaa who has been the staunchest ally ofthe Sangh parivar.

But was his arrest justified under the existing law, while the case is stillunder investigation? The law says that there are broadly three circumstanceswhich may justify arrest during investigation: Firstly, if the accused may fleeand thus not be available to face trial. Though the police claims that he wasplanning to flee to Nepal, that does not sound credible. The second circumstancejustifying arrest is if there is reason to believe that the accused, if notarrested may commit other similar offences as in the case of a professionaldacoit. That also does not seem to be the case here. The third circumstancejustifying arrest is if the accused if allowed to remain free may tamper withevidence. The police claims that he was already tampering with evidence beforehis arrest and therefore that apprehension seems justified. It is quite commonfor such influential persons, involved in serious offences to attempt to buryevidence, intimidate and buy off witnesses. 

In this case therefore the arrest seems justified.

That said, it may however be noted that the police usually does not apply theabove yardsticks while arresting people during interrogation. It is routine forthe police to arrest people accused of a serious offence, even when none of theabove circumstances is present. 

Some judges have also adopted the policy of denying bail to an accused merelyif the police present some evidence of guilt. This is sometimes done by wellmeaning judges since they see the incarceration of an accused (whose guilt hasnot yet been established during trial) as just punishment, since they realizethat the trial will take long and in any case most influential people escapeconviction by compromising the investigating agency, buying off or intimidatingthe witnesses or influencing the judges.

It is also routine for the police to oppose bail and for the courts to denybail on the ground that they need the accused for ‘custodial interrogation’.This is a completely illegal practice, since no person can be forced to be awitness against himself. In fact in the US, the first thing that the police doeson arrest is to inform the accused of his right to remain silent. Unfortunately,the courts have been abetting this practice.

In a country where religious institutions have become extremely powerful andhave amassed hundreds of crores, and where the law almost never catches up withrich and influential people, the arrest of the Shankaracharya is a breath offresh air. One only hopes that the law will also catch up with several othersuch pontiffs who hold the masses in their thrall, but who are engaged in everykind of ungodly activity behind the curtain of influence and money.

Prashant Bhushan is a public interest lawyer in the Supreme Court.