On the Guilty and the Innocent

So, we hear that Jantar Mantar is no longer a “designated” protest site. And so, we know what it was. A dole from the state, an indulgence, to be withdrawn at its pleasure. Just like protest itself. Not a right to broadcast your views to your fellow citizens, but an aberration so dangerous that only the state can define its boundaries.

Considering that even before the revocation of its status, you still needed a permission to protest at the site – from the same people that most protests were aimed at – it wasn’t much of a right. The idea that the permissions were necessary to ensure that general public suffered no inconvenience has always been laughable, considering the inconvenience “VIP movement” causes routinely to the general public. Their purpose is primarily to criminalise normal life – speech, assembly, eating, trading, praying – so that everyone is technically guilty of something. The state can then pick and choose whom to punish. Criminal law ceases to be a boundary and becomes a net.

In any functioning society, the laws are framed such that the behaviour of the vast majority of people falls within the law and criminals constitute a tiny, aberrant minority. It is for that reason, above all, that all kinds of cultures and religions, for thousands of years, are willing for ten (or twenty, or hundred, or a thousand, depending upon who you listen to) of the guilty to go free rather than have one innocent punished.

Blackstone’s ratio (ten to one) is often taught as a technical rule about burden of proof. But it is a moral imperative. And the justification is simple: no society can stand if its people lose faith in the value of being virtuous. That requires two beliefs: that virtue will not be arbitrarily punished, and that the line between virtue and crime is recognizable and stable.

Autocracies break both. Deliberately. Cynically. Fearfully.

They outlaw a far wider range of actions than would be consistent with the well-being of society. That, of course, is because they seek only their own well-being. They are deeply pre-occupied with the worry that that criminals will “laugh all the way to the bank, if they are not deterred”. That is because i) there is a much wider range of normal actions that they call "crimes", ii) they worry about letting any dissent go unpunished lest it snowball and iii) they don't care if innocent people suffer in their pursuit of "criminals".

Incarceration without definite guilt – through draconian laws or just endless undertrial detention does the same damage. It tells the citizen: your virtue does not protect you. The safest strategy is not to be good, but to be close to power.

That may feel rational to the autocrat. But it leads to consequences. Manusmriti 8.128 explicitly warns: "A king who punishes those who do not deserve it, and punishes not those who deserve it, brings great infamy on himself and sinks into hell". In more modern days, we recognise hell as revolutions.

As societies perch delicately between respect for human beings in general on the one hand and devotion to an autocracy on the other, they must ask whether criminalising everyday behaviour is the way to nourishing their lifeblood, whether that is the way to providing the security that Rajdharma enjoins on all who govern.