Deal or No Deal

As l’affaire IPL moves towards its denouement, I am amazed by the utter disregard towards burden of proof – by both professional and lay commentators. This is best reflected in sympathy for Shashi Tharoor (“poor guy; now nobody is innocent-until-proven-guilty”) and indignation towards Lalit Kumar Modi (“this IPL is a real can of worms; off with his head”) but as the dramatis personae now cover large swathes of the well-heeled, others too have been subjected to such indiscriminate thought, freely expressed over the vacuous mainstream media.

This may just be an illustration of Dante’s “...hasty opinion too often points the wrong way and then affection for one’s own opinion binds up the intellect”. But I suspect it is more deep-rooted, rooted in our conditioning to harbour only shallow expectations of those in public life; to conflate investigation and prosecution; and to understand nothing of jurisprudence beyond presumed innocence.

First, what is burden of proof? It is the standard by which a case is decided. In a court of law, this standard spans a wide range. In different civil disputes, for example, balance of probabilities or preponderance of evidence is used. It is in criminal cases that the standard is for the state to prove the accused party’s guilt beyond reasonable doubt (and it is here that the aforementioned crowd-favourite – presumption of innocence – applies).

Anyway, none of these distinctions are germane to Mr. Tharoor’s case. In the reams of commentary, there have been a few nuggets of sense which harked to the “Caesar’s wife should be above suspicion” standard. Had we as a nation maintained a strong moral fibre, yes indeed, but as Charles Baxter wrote, “Fuck and alas”. That’s simply too much to expect, given the depths to which our polity has sunk. Yes, that betrays my own diminished expectations, but my expectations are not non-existent; another standard does apply – when prima facie believable charges are laid unto someone in public life, the defence should bear an "air of reality”. Mr. Tharoor’s elegantly phrased explanations didn’t come close to any such bearings and, better late than not, he’s out of his ministerial job (only that, not from public office). And in any criminal matter relating to this episode – not that there is one, the media and mob’s attention having shifted to readying other guillotines – the presumption of his innocence is intact.

As for the fallout – the flurry of activities on part of various investigating agencies that the central government controls – what should we make of that? These agencies are doing their job and yes; their timing, vigour, simultaneity and hype together admits strong suspicions that this is a vendetta; but that is – and should be – irrelevant to the actual investigations. A thorough investigation is important because at some stage, we have to restore the credibility of these law-enforcement agencies. There have been far too many episodes when they have betrayed the truth in the interests of the established order; far too many cases of governments in power directing investigative agencies to zealously purse flimsy charges (or, in other instances, directing to desist them from pursuing strong cases) – and this reflects in the poor conviction rates that most of these agencies achieve.

Once again, important as it is, this discussion doesn’t apply to the brouhaha around Mr. Modi. He is under investigation and, by all accounts, he is serving the requirements to cooperate with the agencies involved. He is not yet charged of wrong-doing in any competent forum. Again, to return to burden of proof, investigating agencies are using reasonable suspicion as the standard to question and investigate him and others related to the IPL. But investigation is not the same as prosecution: for that, these agencies have to satisfy themselves that there has been violation of some or more laws, and then they will file charges in competent forums. It is then that the prosecution begins.

Bizarrely, however, there is this loud and sustained public and media indignation, accompanied with the clamour for his dismissal. For what? Allegedly, for doling out favours to “friends and family”! But what is his answerability to the public or the media? The fact that BCCI is a public body is not established unconditionally. That the IPL is a public body has never even been discussed. So, the standards that Mr. Modi should be judged by are those as were agreed to in constituting this IPL entity. As far as I can tell, the public – or public interest – had no role.

Joining such ill-informed chorus is certainly not a substitute for (and indeed, probably an enemy of) the real measures required to improve the management of cricket in India – as Kirti Azad and others have shouted themselves hoarse suggesting, lets figure out how to reform BCCI. Till then, for all us cricket fans, the combination of good cricket and the off-field farce reminds me of that old Jimmy Durante song, “Did you ever have the feeling that you wanted to go and still have the feeling that you wanted to stay?”

ps:
Sid Hudgens: Something has to be done, but nothing too original, because hey, this is Hollywood. Off the record, on the QT, and very hush-hush.
Captain Dudley Smith: Reciprocity, Mr. Hudgens, is the key to every relationship.
LA Confidential (1997)

pps:
Governor Jeb Bush asked Bernie McCabe, the state attorney for Pinellas County, to "take a fresh look" at this already exhaustively investigated case… …"I wouldn't call it an investigation," he told me in a telephone conversation. The word "investigation," he said, "is a term of art in my business."… He then explained: "When I conduct an investigation, it would mean that I have a criminal predicate. In other words, that I have some indication that a crime has occurred. That's my job.”… …"In this circumstance, that does not exist at this time. So what I'm attempting to do is respond to the governor's request by conducting what I'm calling an 'inquiry' to see if I can resolve the issues he raised."… …He chuckled at his use of the word inquiry. "It may be a distinction without a difference," he said…
Cruel and Unusual, New York Times, June 23, 2005

The Eleventh Commandment

Shashi Tharoor was a successful diplomat, is a bearable writer (when allowed more than 140 characters) and one of our few telegenic and coherent politicians. But what’s with the IPL shenanigans: is he merely foolish, or does he believe he is beyond reproach?

One could laugh at his being tone-deaf to the calls of his new profession – when you are in public life, it is not enough to do the right thing, you have to also be seen to be doing the right thing (the deluxe hotel residency facts were ‘made to look right’, post revelations); you’ve got to be somewhat more sensitive than openly mocking party decisions (cattle class and holy cows); and you’ve got to keep intra-ministry differences exactly that – intra-ministry. But hey, he’s learning on the job and we like him, so let all this be. It was wrong, but there are worse things to worry about (different from his fans who found nothing wrong with the cattle class tweet or living the high life).

But this IPL mess makes me wonder: is he actively plotting to get thrown out of politics? Has he collected enough material to write a sequel to The Great Indian Novel and would like to be left in peace? Because if this mess isn’t by design, he’s either plain stupid or is living in some hubristic la-la land. Or both? That’d make him the invincible twit.

Read his official statement – it is full of howlers. In (1), he says “...approached me for help and guidance...” (after the auction, this read “...was pleased to give Rendezvous Sports World my encouragement and blessings...”: blessings, I saw, and thought – good, he’s making an effort, learning the vernacular). In (7), he admits he spoke to Lalit Modi but presents a different version of the contents of his chat. (6) is a bizarre version of “No Comments” – here’s a lady you know very well, who is likely to be your spouse; she gains a reported Rs. 70 crore as “sweat equity” in this franchise; you admit (2) that your “... role in mentoring the consortium included several conversations with Mr Lalit Modi...”: why wouldn’t anyone on the sidelines believe that the payoff is for services rendered by you (and/or for your continued patronage and, yes, “blessings”), and not recompense for Ms Pushkar’s unknown contributions? Also, why Lalit Modi took this matter public (5) or what he should do – or not do – about revealing shareholdings in other IPL teams are irrelevant. He’s not in public life and need not be compelled to similar disclosure standards.

BJP’s talk of a CBI enquiry is balderdash. There’s nothing in this exchange that comes under the ambit of corruption, as defined in our laws. It is a transaction between private parties, the bidding was transparent, and indications that the Commissioner is not happy about who won suggests that it wasn’t Dr. Tharoor’s clout (such as it is) swung it Kochi’s way. The question isn’t “should Shashi Tharoor be prosecuted for corruption”?

However, it IS about what sort of people we want in public life. It is one thing to live with those from a different era who, by now, have shed any pretensions of propriety. But for these “21^st Century Indians” in politics, who have made a fetish of their being “different” than the “average/ old-gen guy”, let’s not tolerate them. We’ll make the same mistake as did our previous generation – complicity of the silent – as the latest set in politics promises a new dawn, which will turn out as false as the last one.