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.

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