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?”
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)
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