Politics of blackmailing: Tearing off constitutionalism
Source :NewsBharati   Date :07-Sep-2018

The national scenario all over India appears to be dampened and the social and cultural peace in the society looks trembling. The Executive at the federal level as well as at the State level is under tremendous compulsion and at times it appears fallen at the mercy of the mobocracy.

 

Blackmailing defined:

“Blackmail is an act, often criminal, involving unjustified threats to make a gain—most commonly money or property—or cause loss to another unless a demand is met. It is coercion involving threats to reveal substantially true or false information about a person to the public, a family member, or associates, or threats of physical harm or criminal prosecution.

Blackmail is the name of a statutory offence in the United States, United Kingdom, and Australia, and has been used as a convenient way of referring to other offences, but was not a term of art in English law before 1968. It originally meant payments rendered by settlers in the counties of England bordering Scotland to chieftains and the like in the Scottish Lowlands, in exchange for protection from Scottish thieves and marauders into England.

Blackmail may also be considered a form of extortion. Although the two are generally synonymous, extortion is the taking of personal property by threat of future harm. Blackmail is the use of threat to prevent another from engaging in a lawful occupation and writing libellous letters or letters that provoke a breach of the peace, as well as the use of intimidation for purposes of collecting an unpaid debt. For the piece of information to be considered blackmail, the information obtained must contain items that the victim does not want to be revealed. Some U.S. states distinguish the offences by requiring that blackmail be in writing. In some jurisdictions, the offence of blackmail is often carried out during the act of robbery. This occurs when an offender makes a threat of immediate violence towards someone in order to make a gain as part of a theft.” (Source: Wikipedia)

Blackmailing as it stands in the book of the law: England and Wales

“In England and Wales this offence is created by section 21(1) of the Theft Act 1968. Sections 21(1) and (2) of that Act provide:

(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:

(a) That he has reasonable grounds for making the demand; and

(b) That the use of the menaces is a proper means of reinforcing the demand.

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.

Construction

The Theft Act 1968 section 21 contains the present-day definition of blackmail in English law. It requires four elements:

There must be a "demand".

The demand must also have been accompanied or reinforced (at the time or later) by a "menace". Broadly, a menace is any threat, or implied consequence or action, which would coerce or pressure an unwilling person to accede (give in) to the demand.

The making of a "demand with menace(s)" must have been "unwarranted". Broadly, a demand with menace is always unwarranted unless both the making of the demand was reasonably justified, and its reinforcement with the "menace" was proper, in the belief of the perpetrator.

There must have been an intention by the perpetrator to make a gain for himself/herself or someone else or to cause a loss to someone.

Therefore the requirement for this offence may be paraphrased as:

A person makes a demand of someone else, which is accompanied or reinforced in some way by some consequence if they don't comply, which would coerce an unwilling victim to do what is demanded, and,

The intent is to make a gain (for themselves or anyone else) or cause a loss (to anyone), and either (a) The perpetrator did not truly believe that the demand was based on reasonable grounds, or (b) The perpetrator did not truly believe that the menace was a proper way to reinforce the demand (Or both).

The law considers a "demand with menaces" to always be "unwarranted" (unjustified) unless the perpetrator actually believed that his/her demand had reasonable grounds, and also actually believed that the menace was a proper way to reinforce that demand. These tests relate to the actual belief of the perpetrator, not the belief of an ordinary or reasonable person. Therefore tests related to what a "reasonable" person might think, and tests of dishonesty are not often relevant - the matter hinges upon the actual and honest beliefs and knowledge of the perpetrator him/herself. The wording of the Act means that there is a presumption in law that demands and/or menaces are likely to be deemed unwarranted unless the perpetrator shows evidence that they were believed not to be. Ever, once a perpetrator has defended him/her by giving evidence related to the demand and menace both being believed warranted, the prosecution must overturn one or both of these claims to prove their case. The usual rule is that a criminal act, or a belief not truly held, can never be "warranted", although according to some authors, a "grey area" may (rarely) exist where a very minor illegality may be honestly believed to be warranted.

Additionally, a statement that would not usually coerce or pressure someone may still be a "menace", if the perpetrator knew, believed, or expected that their specific victim would feel coerced or pressured by it. The law does not require a demand or menace be received by the victim, merely that they are made, therefore it is irrelevant whether the victim was affected or not, or even unaware of them (perhaps because they had not yet been received, read or listened to). Because the criteria include an intention to "cause" some kind of gain or loss, a demand for sex (for example) would not be considered blackmail, so threats with these and other demands are dealt with under a variety of other criminal laws. However even in these cases, a gain or loss of some kind can often be found, and then this law can then be applied.

In some cases, the perpetrator him/herself may claim to have acted under duress. The courts have ruled that a person who places themselves in a situation where they may be coerced to make a demand with menaces against a third party is likely, foreseeable, or probable, may not be able to rely on coercion as a defence because they voluntarily placed themselves in such a situation. This issue has arisen, for example, in gang-related violence.

Civil liability

A blackmailer who threatens to publish a defamatory statement of and concerning an individual may be liable to be sued after the regulations of the Defamation Act 2013. Offenders of defamation may be taken to court if serious harm is done to the victim. The requirement for serious harm defines:

(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

The trial for the offence must be with a jury in the case of charges with cases of (a) fraud, (b) malicious prosecution and, (c) false imprisonment

History and legal development

The terms in this law derive from the Larceny Act 1916 sections 29 - 31; which itself draws on the Libel Act 1843 and the Larceny Act 1861. For example, s.30 refers to a person who demands "with menaces or by force". An offence also existed in common law: for example, in R. v Woodward (1707) it was stated that "Every extortion is an actual trespass, and an action of trespass will lie against a man for frighting another out of his money. If a man will make use of a process of law to terrify another out of his money, it is such a trespass as an indictment will lie." The 1805 case R v. Sodherton stated that a threat needed to be such that a "firm and prudent man" would be overcome by it, and concluded that "The law distinguishes between threats of actual violence against the person or such other threats as a man of common firmness cannot stand against, and other sorts of threats. Money obtained in the former cases under the influence of such threats may amount to robbery, but not so in cases of threats of other kinds".

The origin of the modern offence lay in the 1723 Black Act, which addressed a group of notorious poachers and extortions. In 1823 an Act which was passed that criminalized "demanding money or other valuable thing” where no reasonableness or menace was required, and in 1927 this was updated in a further Act to cover "any letter or writing demanding of any person, with menaces, and without reasonable or probable cause", thus mentioning menaces for the first time in the context of blackmail. The 1827 offence was in turn replaced in 1837 by an offence concerning any person who “with menaces or by force, demand(s) any property of any person with intent to steal". In the Larceny Act 1916 the element of "taking" included taking by intimidation based on an earlier case R v. McGrath.

Before the enactment of section 21 of the Theft Act 1968, the word blackmail was not a legal term of art. The word was used by lawyers as a convenient way of referring to the offences under section 29 to 31 of the Larceny Act 1916, and those offences were commonly known as blackmail. But the word blackmail did not appear anywhere in that Act. In early legal history, the term appears to have referred to the extorted property itself, and included by reference both the perpetrator and the victim - the legal position was that the victim was as equally culpable as the extortion, insofar as he/she had given in to extortion and thereby made it profitable to extort.” (Source: Wikipedia).

Political drama:

Politics of blackmailing, freezing the spirit of the Executive and stalling its initiative to take action in the field of development, falls prey to the threats and intimidation, as explained above. Every executive day when it rises comes up with a new threat of ‘bandh’, ‘rasta-roko’, ‘marches’ or attacks on the officials and the offices. Almost every section in the society flairs up with some demand, and a threat that if not met with, will be followed by dire consequences. The Executive either succumbs or retaliates and faces the heat which it generates. The peoples’ sentiments do not feel ashamed or sorry. The judiciary like Robinson Crusoe on the lonely island keeps on its fiddle playing, issuing un-implementable orders for its own sake. Its orders on ‘flex-boards display’ on the streets and roads, has been an interesting example in this regard. The common man in the street feels sorry about this and is very much concerned about it. After all, the judiciary is the last hope for justice which he still needs and can remain dependent on it with respect. However, the common man feels let down.

Is it mutual blackmailing and connivance of vested interests?

It is interesting to note that in the Indian scenario, the entire circle seems to be full of mutual blackmailing episodes. The prominent components of the three constitutional pillars viz., legislature, the executive, and the judiciary and the ‘fourth estate’, pressure groups, lobbies, interest groups, NGO’s, professional groups, the media personnel, all these components have dangerously developed their own very high stakes. These do not mince matters but these particles aim at their respective targets shrewdly and at times lead to mutual destruction. These groups seem to dominate the laid down legal framework, moreover, these tend to undermine the legitimate authority of the ‘executive’ and openly flout the constitutional methods and invite lawlessness. The overpowering shadow of anarchic future does not shake these pressure groups as their stakes are far higher than the possible damages anybody may expect.

World phenomenon:

The polity of blackmailing, not only in India but also everywhere in the world, seems to have led the society to an uncertain future for all of us. Especially, the Indian polity seems to be suffering from a multiplicity of latent functional executives. There have emerged too many extra-constitutional executives which have posed a serious threat to the very sanctity of the civil and parliamentary democracy in India. It has become risky even to take a stand against these factors which are said to have posed a threat to the peaceful polity –essentially an ancient Indian secular unshaken feature. Those who dare to take such a stand run the risk of being termed as bourgeoisie and anti-democracy. Ironically, as if it were, the liberty of expression is reduced to suppression of liberty to stand against these dogmatic stake holders.

Components redefined:

Right to, not merely information, but also to publicity as well, have redefined several components and their roles in most perverted forms leading to social catastrophes. These are on way to ‘no come back’ strolling. The scenario in India has been extremely alarming. Not a single day passes when there is no channel ( may be exaggerated ) which does not report squabbles between the unruly mobs and the State, or report publicly made open threats amounting to almost treason hurled at the State, assaults on public servants, everywhere print media carrying out false news stories based on hearsay levelling frivolous allegations against the executive at almost every level, without any substantial evidence, these and several other factors have weakened the structure of democratic operations leaving the ‘executive’ in doldrums.

The judiciary may well observe that ‘dissent is the essence of democracy’, of course, it is, but open and rampant unruly threats and its consequential bloody riots in the name of democracy, can it be justified and defended? Peaceful agitations by political parties are justified but how can the riots cost several human lives and destruction of private and public properties be vindicated? In India, agitations are invariably turned into riots. These are justified in the name of parliamentary democracy. Strangely, there seems to be a consensus arrived at amongst all political parties. A common question rising in the mind of the citizen is who is to blame whom?

The languishing political parties:

It is interesting to note that the opposition political views are materialized by way of anarchic threats. Undemocratic methods are deployed to attain democratic destinations. The tragedy of the opposition views are expressed by ‘one-member-leader parties’ who vie for seats of power and authority while competing with one another replete with mistrust and hatred. In fact, it will not be an exaggeration that there is an absence of an ‘all India opposition party’. What exists are several splintered small groups enjoying and managing agitations and riots in the interest of popular ‘welfare’.

The challenges before the opposition groups are several a few of which are : (a) no positive or constructive programmes, (b) no policy making thinking and thinkers, (c) no institutionalized activities, (e) no popular support worth mentioning, several ‘paid’ slogan shouters seem to have been hired, (f) no intellectual calibre on the part of its leaders, (g) excessive craze for power,(h) excessive yearning for power, (i) agitations reduced to anti-development stances. The most talked of the common programme of the entire opposition seems to be personalized politics of hatred—‘MODI HATAV’.

The substantial content of the electioneering is based on ‘political’ in substance, impetuous and frivolous promises made to the helpless voters, and after defeat in the elections keep on playing the blame game. It is unfortunate in Indian parliamentary democracy that the elections veer around personalized charisma and appeals. The system is less discussed and personalities are debated. The system is misused for the petty party and personal interests.

Institutionalisation

“Institutionalisation refers to the process of embedding some conception (for example a belief, norm, social role, particular value or mode of behaviour) within an organization, social system, or society as a whole.” (Institutionalisation – http://wikipedia.org/wiki/Institutionalisation).We consider parliamentary democracy as an institutionalized system which is supposed to stabilize the human society and guarantee it a protected peaceful life. “Political institutionalization is the act of creating formal structures that embody a political system across a population”. (“Wikipedia”).

Another excerpt from Wikipedia is worth learning: “No matter the region of the world under study, party (system) institutionalisation has been traditionally considered to be a necessary, but not sufficient, condition for the survival of democracy. Despite being one of the most quoted statements in the democratisation literature, the few studies looking at the relationship between institutionalisation and democratic endurance have found no evidence of the ‘almost magical’ powers of the former.

This article revisits the abovementioned research question by making use of an original dataset covering all European democracies between 1848 and 2014. The main findings are threefold: (1) it is not the institutionalisation of political parties but the institutionalisation of party systems as a whole that has fostered the prospects for democratic survival in Europe; (2) there is a threshold of systemic institutionalisation which, once reached, will avoid democratic collapse; and (3) systemic over-institutionalisation does not seem to be so perilous for the survival of democracy.”

Following a summary of the research work carried out by Mainwaring 1999 Mainwaring, Scott titled “Rethinking Party Systems in the Third Wave of Democratization: The Case of Brazil”. Stanford: Stanford University Press would remind the observers of the Indian scenario. The main points are as following:

First of all, it seems reasonable that PSI and PI are two different if related, concepts which should not be conflated. As a result, the former should be operationalised with an eye to excluding indicators that measure aspects at the party, rather than the systemic level. Secondly, it has not been the institutionalisation of political parties but the institutionalisation of party systems as a whole that has had a positive effect on the prospects for democratic survival in Europe. However, thirdly, such impact has taken place in a different manner than what most scholars had predicted, as PSI has not been necessary, but a sufficient condition for the survival of European democracies. In fact, democracy has survived in many post-communist countries despite, sometimes even in spite of, extremely inchoate party systems (e.g. Latvia, Bulgaria, Lithuania, Poland, etc.). What scholars, and politicians, should bear in mind is that continuous lack of PSI ‘necessarily’ puts democracy in peril, as most pre-World War II European cases demonstrate.

Fourthly, European democracies do seem to be unthinkable save in terms of moderately institutionalised party systems. In other words, democracy will never collapse as soon as a certain degree of PSI is reached. At least this is what our historical analysis of 64 different European political regimes reveals.

Fifthly, when trying to measure PSI or looking for the ways to avoid democratic collapse, scholars might want to consider putting their focus on the stability of partisan interactions rather than on the volatility of electoral attachments or the number of political parties.

Finally, party system over-institutionalisation has not proved as dangerous for the survival of democracy in Europe as some may have predicted

All in all, as Sontheimer noted almost 30 years ago, ‘the stability of the party system [rather than the parties] is the really decisive factor for the stability of the whole system in all democratic systems’. Notwithstanding the fact that any generalisation of the results of this article outside the European continent should be treated with caution, its findings have important implications in terms of how democracy should be promoted as – needless to say – the whole question of democratic survival should be approached with a preferential eye on party systems rather than merely on parties, as has usually been the case .

In other words, paraphrasing Pridham (1990 Pridham, Geoffrey (1990). Securing Democracy: Political Parties and Democratic Consolidation in Southern Europe. New York, which states----

“Focusing on party systems must remain a basic if not the central theme for examining the survival of liberal democracy”.

The purpose of referring the European experiences is to point out that the Indian experiment of parliamentary democracy too is undergoing a similar trauma of the political and party institutionalization process.

Weak party structure:

Party structure of political parties in India is weak, devoid of ideology and the ideologues, therefore several parties are split and leadership shattered, the workers scattered. This situation has led to the emergence of a plethora of political parties. Moreover, the meaning of democracy too was exaggerated by the party managers, consequently leading it to a game of free for all defying all norms and code of conduct presumed in the process of parliamentary decency. There seems to be a diectomy like a situation where parties follow principles of European polity whereas the economy follows the Indian old model where principles of the native economy are differently observed which emphasizes social justice on a priority basis. The conceptual essence of social justice in India is different from Western welfare ideas. This issue is required to be understood in its proper perspective.

Most of the political parties, esp. the regional outfits, hang around for their respective bases, i.e. social appeals esp. the caste affiliations for their institutional strength, which subsequently fall short of the mark. These ultimately remain pigmy forts only to create nuisance value and temporary chauvinism throwing their support-base backwards culminating into a retrograde step.

Moreover, the thought of self-defined social justice has been the genesis of mutual blackmailing amongst their competitors, which is deployed as a political device by several political groups to accomplish their goals. The situation explained earlier viz. a multiplicity of latent functional executives secretly substantiates the demands of these smaller political groups from within the public administration. These splinter groups employ the device of ‘public interest litigation’ (PIL) to accomplish their goal hand in gloves with anonymous individuals who paralyze the administrative action causing irreparable losses to the larger public interest.

The smaller groups within the parties smartly articulate their mediocre lobbies and deploy these as dissuasive pressure sub-groups to force their respective leaderships to adopt anti-government stand threatening the Executive its stability. In this process, it is often observed that these smaller parties too face the danger of its split, which in several cases does happen. After the split, naturally, the strength of these parties is diminished thereby losing its bargaining power. The parties consider their bargaining power as its real political power and ideology do not figure anywhere in the process. Such a situation is considered as an invitation to chaos.

India has already received the invitation.

‘Blackmailing’ is a tendency, tendency of manipulating ways and means irrespective of its moral side and consequences, to one’s own advantage. Cruelty is its metaphor. Christophe Jafferrolot in his article published in ‘INDIA REVIEW-2016, VOL. 15, and NO. 2, 196–217’ (http://dx.doi.org/10.1080/14736489.2016.1165557) has suggested that sub nationalism as explained by Prerana Singh (in her thought—‘the concept’) is realized by Narendra Modi’s style of politics. Is it blackmailing? Both the intellectuals referred to as above aim at the same point. Let us differ in these two. In fact, those who understand and know the facts, should know that it was the then Chief Minister of Gujarat, Narendra Modi, who underwent a traumatic period of torturous victimization (remember Godhra killings?) process inflicted upon him by the preceding administration. That was blackmailing per-say.

There are several blackmailing cases which can be referred to at the lower echelons. In many cases, the blackmailing cases emerge result-oriented. It becomes a mutual blackmailing game. It is a bulldozing game. Wild tendencies, beastly attitudes find a way out from the minds of the disgruntled souls whose desire for power has remained unfulfilled. Blackmailing is a powerful device to create terror.

To summarize the content of the preceding narration, can we state that the outstanding feature of the present Indian polity is that blackmailing has of late become all pervasive, omnipresent and omnipotent. Leaders with unruly psyche appear to have dominated the mobocracy which has paved the way for lopsided and dogmatic interactions amongst all the players of the game. Such a situation has posed a serious threat to the operation of the democratic process. The destination of the welfare of the commoners looks a distant goal. The welfare of the poor looks like a myth. It looks like an unachievable dream and it is reduced to a mere ‘slogan mongering’ and a topic of the day or a well-managed seminar.

The thought of nation-building simply does not arise. Self-interest, party interest, group interest, community interest, caste-interest, family interest these and several interests are carefully safeguarded, fostered and fought for at the cost of national interest. There are political groups which are family drives—under the garb of ‘party’ in our parliamentary democracy and shockingly these groups command popular support during the electoral battles keeping the national interest at bay.

Who cares for the spiritual advice tendered by Narendra Modi when he expected the citizens and all the political parties to adopt and practice for national prosperity a code of conduct the tenets of which are ‘charitable service,’ ‘equilibrium’ , ‘restraint’ , coordination’ , ‘positive’, ‘sensitive’ and ‘dialogue’ the underlying hymn being ‘Nation first’.

Dr Sharad Vasudeo Khare is the Secretary of Dr Sripaty Sastry Research Institute of Social Sciences, Pune