Monday, January 10, 2011

Guilty? Blame the judge!


It required just one unfavourable verdict – and that too from a lower court – for the family and friends of convicted doctor-activist Binayak Sen to launch a bitter tirade against the Indian judiciary. Until the other day they were confident that the legal system would give them justice. For a number of people, the verdict of the Additional Sessions Court in Chhattisgarh was indeed justice; for Sen and his sympathizers it was travesty of that. The matter will now be debated in the High Court – where it has reached, and, if necessary, in the Supreme Court as well. But already the wife of the high-profile activist, sentenced for life on a variety of charges including sedition, has declared her loss of faith in the judiciary. So upset was she that she announced her desire to seek asylum in a “more democratic and liberal country”, but retracted the statement a few days later.

That Ms Ilina Sen should not have trust in one of the pillars of Indian democracy is eerily similar to the credo of the Maoists who reject the Indian establishment and seek to replace it through their brand of violence. The Red ultras also have contempt for the political and the judicial system. But the Sens have claimed to be part of the mainstream, working for the welfare of tribals, and so they should not have succumbed to the extremist conclusions. Damning the Chhattisgarh administrative and judicial mechanism, she now says her husband should have demanded that the trial be conducted outside that state. If she believes that would have offered her a better chance of justice, it is still not late to resort to that move. But no, like the Maoists she too concludes that it is useless to depend on a system that has, despite its faults, delivered for six decades since Independence. The appeal to the High Court, one would presume, is just going through the motions.

It remains a mystery why she expressed a desire to seek asylum. There have been no reported threats to her – although she claims to fear for her life – nor has she exhausted all the means of justice and arrived at a dead end where staying back would entail a dangerous existence. Incidentally, she forgets that Maoists, who have been termed as among the country’s greatest threats to internal security, continue to flourish, though occasionally some get eliminated. If they can fearlessly continue, why should Ms Sen, who self-admittedly has done nothing wrong, be worried? Of course, innocent people do get trapped, harassed, tortured and even prosecuted at times in the country, and that is unfortunate. But there are mechanisms to address such excesses, and they have been applied to correct wrongs in several instances. In any case, if every ‘wronged’ person comes to believe that asylum is the only way out, there would be an exodus from this country – and from any other nation as well, since even the most liberal and democratic country suffers from drawbacks.

Perhaps the asylum declaration was designed to embarrass the country before the rest of the world that has been lapping up the Binayak Sen case. There are enough human rights activists across the globe to project her despair as a monumental failing of rights record in India. With such a network of well-wishers, Ms Sen can well become an international celebrity at the cost of India’s image. One wonders, though, which “more liberal democratic country” she had planned to settle down in. The US, the UK? Well, look at how they have dealt with Mr Julian Assange of WikiLeaks, who had the courage to publish classified material that has shaken several nations. She had the option of the Gulf States, one of which has given refuge to noted painter M F Hussain, who fled India because he had no “creative freedom” to perform here. One needs to be an extraordinary person to market the idea that a Gulf nation offers more creative freedom than India.

Having ridiculed the judge who convicted Binayak Sen, the latter’s friends have turned their attention to the “archaic” provisions dealing with sedition and conspiracy against the government that nailed Sen. There have been of late a number of articles slamming Section 124 (A) of the Indian Penal Code on the ground that it had been promulgated by the British regime to stifle nationalist sentiments, and thus had no place in present times. While its continuation is a matter of healthy debate, it must be remembered that the country did adopt the provision in 1951 after it had been thoroughly discussed by our law makers. Their relevance was felt even sixty years ago; surely now, when the country is faced with several threats to internal security, they are not out of fashion.

Incidentally, the law on sedition was upheld by the Supreme Court in the landmark Kedarnath Singh versus State of Bihar case in 1962 – the very same case that is being parroted by sympathizers of the convicted activist to claim that Sen had been wronged. The apex court had said that under provisions of 124 (A) that deal with sedition, there could be reasonable restrictions to one’s freedom of speech as guaranteed by Article 19 of the Constitution. A Constitution Bench observed that the provisions “impose restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interests of public order and within the ambit of permissible legislative interference with that fundamental right.”

Elaborating on the apparent contradiction between the sedition law and the constitutional right to free speech or expression, the Bench had stated, “It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction. The provisions of the sections read as a whole… make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency to create disorder or disturbance of public peace by resort to violence.”

All through the verdict, the learned justices took pains to explain why provisions of the law should not be read in isolation but should be considered in totality. In the Binayak Sen case, therefore, harping just on Article 19 that provides freedom of speech and expression without taking into account the restrictive measures of the constitutionally valid 124 (A), is bound to lead to lopsided conclusions.

Thursday, January 6, 2011

Defending the Indefensible


(First published in The Pioneer dated Decembeer 31, 2010)

The life sentence handed down by a trial court in Chhattisgarh to doctor-activist Binayak Sen, convicting him for sedition, criminal conspiracy and collusion with Maoists, has attracted a furious response from so-called civil society groups and individuals. They have condemned the verdict as biased and influenced by political considerations. Not just that, these vocal critics — who find copious space in the print and electronic media to voice their concerns — have even questioned the judicial process that arrived at the damning conclusion.

Binayak Sen has every right to feel aggrieved by the judgement, and so do his family and friends. They have already decided to approach the High Court against the verdict. Like any other convicted person who believes he has been wronged by a court of the land, Binayak Sen can employ the best legal brains he can access to fight his case higher up the legal ladder. What will happen thereafter, we do not know, and this is no occasion to second guess the outcome. But, right now it is naïve to hail him as an innocent victim of state repression or slam the verdict as a manufactured one. He is guilty until proved innocent.

Before we get to the specifics, a small comparison will be in order. While Binayak Sen, convicted and sentenced for serious crimes against the nation, is being hailed by human rights activists as an icon of humanity, Gujarat Chief Minister Narendra Modi, with not a single charge against him in a court, let alone prosecution or conviction, has been pronounced guilty of communal crimes by these very activists. Binayak Sen’s friends have a funny sense of justice.

One of the strongest criticisms against the ruling has been that due process of law was not followed. Organisations like Amnesty International, always fishing for adversial human rights references — particularly in developing countries — were quick to claim that the trial was conducted in an opaque manner. This charge, at least, ought to have been rubbished even by Binayak Sen’s Indian friends, because they know only too well that our legal process is transparent to a point where it gets frustrating. The best example of that is the Ajmal Kasab case, where the terror accused has succeeded in waging a long winded, and for now unending, legal battle to prove his innocence even though all of India watched him on television killing people on Mumbai streets two years ago.

There was nothing secretive about the Binayak Sen trial nor did the court engage in shortcuts. The accused had at every stage of the trial opportunities to defend his position. The case went on for more than two years before Binayak Sen was convicted. He was formally charge-sheeted in August 2007 and sentenced only in December 2010. In the course of this period, the Indian legal system, which has now become a subject of scorn for the convict’s friends, afforded him relief when he merited the benefit. Thus, although in December 2007 the Supreme Court rejected his bail plea, it did give him bail later in May 2009 on the ground of his failing health. It is, therefore, churlish for his supporters to point accusing fingers at the Indian legal system now that he stands convicted.

If one goes by Additional Sessions Judge BP Varma’s verdict, Binayak Sen had produced a dozen witnesses in his support. He also had the occasion to cross examine the 97 witnesses that the prosecution presented to fortify its case against the doctor. Besides, Binayak Sen knew fully well the provisions of the various laws that he was being charged, whether it be the Indian Penal Code, the Chhattisgarh Special Public Safety Act and the Unlawful Activities (Prevention) Act. As an educated and well-informed individual, he was fully equipped to deal with the accusation against him. In what sense, thus, can somebody allege that he was not given a fair trial?

As for the charge that the judge was “persuaded” to rule against Binayak Sen, it is a serious one and ought not to have been made without sound basis. Just a sweeping remark that verdicts of the lower judiciary can be rather easily manipulated and that judges are prone to succumb to political pressure, like they have in the Sen case, is easily said than substantiated. While no one denies that actions of certain sections of the judiciary, especially at lower levels across the country, have indeed been questionable, it does not automatically lead to the conclusion that Mr Sen became a victim of that malaise. Not securing a favourable ruling is not reason enough to rant against the judges. Remember that even the recent Allahabad High Court judges who recently ruled on the Ayodhya title suit were criticised by some leading activists as being “un-secular” because their verdict was seen to have “favoured” the Hindus.

It would be more prudent for Binayak Sen’s friends to prepare a sound case for his defence in the High Court rather than waste time besmirching the reputation of the judiciary. After all, the convicted doctor has not denied that he had carried letters from and to individuals involved in Maoist activities. Given his education and intellect, he cannot take the plea that he did not know the letters he was ferrying across were written by and meant for Naxals involved in seditious activities, nor did he realise that his action, even strictly as a messenger, was questionable. And the other argument that he was unaware of Section 124 (A) of the IPC that deals with sedition, is fit to trashed, because being uninformed about the law is no justification for breaking it. But then, reportedly, Binayak Sen went even beyond the seemingly innocent activity of delivering letters; he helped people having Naxal connections with accommodation and opening of bank accounts. What business did a medical doctor, who is working among tribals to improve health facilities, have to become a conduit for Naxal activities and assist in their nefarious functioning?