Of late the news from India has been very mixed- on one side there is
the hype about economic progress and a powerful India;
on the other side there is a picture of decay and degradation
emerging. Everyday news is disturbing enough- scams worth multi million dollars have ceased to be a news long before. Now the
trend is powerful and mighty getting away with anything they do; land
grabbing (whatever happened to the land-grabbing case involving her
highness the President of India's husband ?), loot, and even rape and
murder. All these in the midst of our drum beatings about worlds
largest democracy.
Administration and Legislation has been always known to be corrupt in
India- the two grand pillars of democracy. But then we reposed our
faith in two other pillars; the press and judiciary. The latest CWG
scam has exposed
how the mighty in the press was manipulating news for the public consumption- and now the last remaining pillar, judiciary
shows signs of decay. Even the highest office of the CJI is not
spared. Why doesn't it shock us ?
It is the time to retrospect and correct whatever went wrong with our
democratic experiment. I have been looking for something sane to come
in the mainstream media- but then I found this article from
Proletarian Era. It is longish, but all who are pained by present
scenario would find it worth their time. The article argues that our judicial system is betraying signs of all out administrative fascism, and points out active participation of people in democratic movements is the sole deterrent against such a decay. It is an analysis from their view point- and I hope it would be good starting point for a soul searching discourse.
A child molester is sentenced to a year and a half in jail twenty years
after his victim killed herself, and gets out on bail within four
months. A convict of Mumbai terrorist attack is fed biriyani. A
corporate tycoon, who is responsible for death of 30, 000 odd people and
the continuing suffering of millions of victims 26 years after worst
gas tragedy, is allowed to lead a cosy life in the United States of
America. A central minister who cost the government lakhs of crores of
rupees is raided by the CBI after ample notice that would have given him
time to get rid of incriminating evidence. Yet, in this very same
nation, a well-known human rights activist is summarily sentenced to
life imprisonment — the maximum penalty for most rapists and murderers.
Civil rights activist Dr Binayak Sen was found guilty of sedition by a
Raipur court and slapped life term. Curiously enough, when the Raipur
trial court was pronouncing its verdict against Dr Sen and others, it
was found that some state governments were showing amnesty even to
persons booked for indulgence in secessionist activities and mindless
killing of innocent people One would recall that the Supreme Court had
dropped sedition charges against two Punjab government officers who were
accused of raising “Khalistan Zindabad” slogans in public several times
hours after the assassination of Indira Gandhi. But for Dr Sen and many
other political leaders, Human right activists and crusaders against
institutionalized crime and corruption, the ‘rule of law’ in Indian
capitalist state is found to have a different connotation. Naturally,
the court verdict against Dr Sen and others which has come on the close
heels of controversial Allahabad High Court judgment on disputed Ayodhya
land, has again brought to the fore many a question centring round
operation of due process of democracy, administrative neutrality and
above all, role of judiciary.
Alleged Travesty of Justice
After Dr Sen received his life sentence and the judgment was made
public, there has been a vehement protest and indignation against the
verdict from all quarters of right thinking populace Outrage began
mounting almost immediately among India’s intellectual circles including
eminent jurists. Some asserted that Sen was railroaded through the
system as payback for exposing many wrongdoings and criminal activities
of the government-administration. They have held that when annual
rituals of Human Rights Day are observed with much fanfare, what is
submerged beneath is the sordid reality of flagrant violation of human
rights by the power that be and instead is provided a deceptive cover to
the unremitting gloom looming large in our lives. Many critics said
that treatment of Dr Sen’s case once again exposed the weaknesses in
India’s legal system. Corruption and politically motivated trials,
critics said, have now joined incompetence and sloth to make a travesty
of justice.
“Convicting Dr Sen shows that sections of the judiciary are
willing to act as instruments of a State’s policy to silence dissent,”
said senior Supreme Court advocate Prashant Bhushan, “This will
undermine the people’s faith in the lower sections of the judiciary.”
Continuing further, he said, “”The judge has become a willing instrument
of the state to victimize people who are raising their voices against
[its] human rights abuses. It’s not merely a gross miscarriage of
justice, it’s outrageous.” “It is scandalous to say that Dr. Sen was
working against the interest of the country,” said Justice Rajinder
Sachar, former Chief Justice of the Delhi High Court. According to Soli
Sorabjee, former Attorney-General, “the tone and the tenor” of the
ruling is “worrying,” because it has created “an atmosphere of
paranoia.” Amnesty International has held that the ruling is violative
of “international fair trial standards”.
Eminent human right activist Medha Patkar said: “It is not a legal
or a judicial judgment but a political statement.” Teesta Setalvad,
noted civil right activist, believes that Sen got convicted on “trumped
up evidence” because the BJP-ruled Chhattisgarh government was gunning
for him. “By the same token, the killers of Shanker Guha Niyogi, a
well-known trade union leader of the Chhattisgarh Mining area, were let
off by the judiciary because they hailed from a powerful corporate
mafia with political links,” she added. Writer-activist Arundhati Roy
reacted, in a sarcastic reference to the attempt made by the prosecution
to pass off Binayak Sen’s correspondence with the ISI of New Delhi, a
benign NGO, as the dreaded ISI from Pakistan. “The crisis in Indian
democracy does not get more dangerous than this.”In some way the verdict
was a declaration. It was not a judgment, it was a warning to others,”
remarked she. Even Amartya Sen said he was amazed by the nature of the
“unjust” decision and was compelled to speak because the “legal process
was not divorced from human reasoning.” With the row of protest gaining
strength, the Union Home Minister Chidambaram could not but say that if
people felt that the life sentence dished out to human rights activist
and physician Binayak Sen was unfair then they were free to appeal
against the verdict.
Why the allegation
According to the critics, the worrisome features of the trial
court’s verdict are the illogical surmises leading up to the findings.
The testimony of Anil Kumar Singh, a cloth merchant is stated to have
sealed the case against Dr Binayak Sen convicted for conspiracy to
commit sedition as defined under Section 124A read with Section 120B of
the Indian Penal Code, in addition to several other terrorism-related
offences under Sections 8(1), 8(2), 8(3) and 8(5) of the Chattisgarh
Special Public Safety Act, 2005 apart from Section 39(2) of the Unlawful
Activities Prevention Act, 1967. In court, Mr Singh claimed to have
overheard Piyush Guha saying that Dr Sen had given him suspected
‘Maoist’ leader Narayan Sanyal’s letters, thereby establishing a link
between the three. During the trial, the defence lawyers argued that any
confessional statement made by an accused in the presence of police is
inadmissible under law, and so Singh’s claims on Guha’s confession
should not be counted as evidence. But overruling the objection, the
judge said Singh was “witness to the seizure and not to any
(confessional) memorandum... his testimony related to the circumstances
of the seizure of letters from Piyush Guha, and hence was admissible
under Indian Evidence Act 1872.” Critics argue that the one-sided tenor
of the judgment is best captured by the blanket dismissal of the
objections to the prosecution testimonies that were raised during the
course of cross-examination.
Apart from the fact that there seems to have been no record of
this letter in the seizure memo prepared on the spot, it is
inconceivable, claim the critics, how the content of the letter by
itself can be accepted as evidence of support for Naxalite activities.
What adds to the comedy of errors in the prosecution’s story are the
testimonies that this particular letter may have been stuck or misplaced
among the other items seized during the search and hence finds no
mention in the seizure memo. Like the other material inconsistencies in
the prosecution version, the trial judge bought this explanation as
well. So the critics of the verdict are of the opinion that even if one
were to disregard the investigative lapses and flimsy evidence presented
in this case and assume that the handing over of letters constituted a
conspiratorial relationship, such conduct cannot be equated with acts of
physical violence or direct incitement for the same. They also added
that slapping of sedition charges could not be on the basis that he was a
courier of letters, even if that allegation is taken as gospel truth.
The critics further claim that as one ploughs through the text of
the judgment, what initially appears to be a bundle of errors turns into
a legitimate apprehension of collusion between the prosecution and the
trial judge. Many commentators have already pointed out, political
posturing and ideological beliefs can neither be a justification nor a
means for diverting attention away from shoddy fact-finding. “We often
say punishment should be after due process, In India, due process can be
the punishment,” observed Bhanu Mehta, one of the critics.
Onset of administrative fascism
This ruling, therefore, cannot be viewed as an isolated instance
of miscarriage of justice or merely a farce or caricature of due
judicial process. It is a case in point which indicates the abysmal low
the entire judicial process has plunged into. It may be recalled that
during the Prime ministership of late Indira Gandhi in the mid-1970s, a
concept of ‘committed judiciary’ was floated. But that was not just a
brainchild of Indira Gandhi but the first step to make judiciary
function in such a way as to be complementary to the process of bringing
administrative fascism in the country. In the later period, there has
been relentless effort on the part of the rulers to move further ahead
in this regard. As a result, the separation between the roles of
Judiciary and Executive that the exponents of bourgeois democracy
contemplated can be said to be virtually non-existent today. In fact,
both seem to be entwined.
This is exactly what transpires in the case of Dr. Binayak Sen and
hence the allegations made by the various persons of eminence and
critics cannot be brushed aside. Rather there is enough reason to take
the criticisms seriously and seriously ponder over the same. Could those
elected by the people as their representatives in the legislature,
after ascending to governmental power, arbitrarily and unilaterally
impose ban on individual thinking, philosophy and activity and whether a
brutal state-sponsored terrorism backed by the ruling parties could be
let loose on the people tormented day in day out by appalling poverty,
hunger, unemployment, corruption, non- development, mal-development,
lack of minimal healthcare, education and justice? And above all,
whether those raising voice against such injustice, predicament, misery
and penury could be simply charged of treason or sedition, denied even a
semblance of fair trial and straightaway put behind the bar for life
with the judiciary remaining as a passive, if not indulgent onlooker? If
that be so and in view of the various aspects concerning present day
judiciary as discussed above, it has to be admitted that there is
considerable degeneration of the judicial system. If things go unabated,
one cannot overrule the apprehension that after concentration of
economic and political power in the hands of the ruling capitalists and
the state subservient to them, judiciary might well be turned into an
appendage of the ruling class. In the process, hands of the ruling
capitalist class are only getting strengthened. All these categorically
show that administrative fascism has completely set in. Danger inheres
here.
Allegations of discrimination and aberration
There is another worrying phenomenon that needs to be taken due
cognition of. It has been the experience of the common people that
contrary to the claim of the power that be, everyone is not viewed equal
in the eyes of the law. Law is distinctively tilted towards the rich
and affluent, the rulers and their subservient quarters and the wielders
of power. Legal process and even pronouncements can be manipulated at
will by spilling of money power or invisible hands of powerful
influencers. Let alone the poor and have-nots who do not have even an
access to the legal system and thus are hapless victims of gross
injustice meted out to them by the oppressive rulers and their agents,
some prominent cases involving relatively higher sections of the society
also bear evidence to that. If two persons are convicted of the same
crime like rape and murder, it is found that court shows some leniency
in the form of commuting death sentence to life term if the accused is
from the rich or having connection at influential quarters. If high-ups
in the government or administration are caught doing wrong, they either
get away with minor punishment or even let off. On the other hand, there
is often complaint of denial of justice or even circumvention of due
judicial process if the prosecution is against a person having no such
link or means or a background that the power that be founds inimical to
its interest. The discerning people have also observed how those
responsible for criminal act of demolishing in full media glare a
historic monument like Babri Masjid or orchestrating worst anti-minority
pogrom in Gujarat simply for reaping electoral benefits by inciting
frenzied communal hatred are not only moving around freely but even
enjoying ministership. Brazen ignorance of law points brazenly ignored
and distinctive discriminatory treatment were also alleged by noted
jurists in the recently pronounced Allahabad High Court verdict on
Ayodhya. The court made faith and belief of a particular religious
community override fundamental tenets of jurisprudence ignoring all
tenable facts and evidence while dismissing the claim of the other
contending party on the ground of lack of evidence. So, the said ruling
has come under severe criticism from many quarters. Countrymen also
notice that a number of fraudsters and scamsters are merrily moving
around and often challenging the law to take action against them. On
the other hand, harassment of the common people seeking justice has
become a routine affair. Common people often lament that those having
money can only fight a legal battle. Because they experience that the
rich and influential persons not only receive backing of the state in
subverting or circumventing law but often purchase legal opinion in
their favour by dint of their connection and money power. This, any
saner mind would agree, is also a kind of travesty of justice to the
citizens discriminated against because of lack of their ability to bear
the legal expenses. It is for all these reasons that any allegation
about law being not equal to all or discrimination in judicial
pronouncements cannot be ruled out.
The next point of grave concern is that, of late, the judiciary
itself has come under the scanner over charges of corruption and
misconduct. As per media report, over 10 High Court judges and nearly
two dozen district judges were charged by CBI of embezzling Rs 23 crore
of Uttar Pradesh Provident Fund (PF) money in February 2009. Ashutosh
Asthana, a clerk in the Ghaziabad district Court is alleged to have
illegally withdrawn provident fund money of lower-level employees and,
according to his statement to a magistrate, passed it on, among others,
to the judges. Here, too, it was found that 58-page charge sheet filed
by the CBI made three notable exceptions: Justice Tarun Chatterjee, then
a sitting judge of the Supreme Court; and Justice Subhash Aggarwal and
Justice Subhash Chand Nigam, both former judges of the Allahabad High
Court. These judges had all been named in the statement. J.S. Verma,
former chief justice of India and an ardent campaigner for the judicial
accountability bill, says, “The Supreme Court is the highest institution
to which people come for justice. So if any judge, serving or retired,
figures in a case, his name has to be cleared to maintain the sanctity
of the court.”
Just when exposes of scams have roiled the political class in the
second half of last year, Supreme Court has trained the spotlight on
growing corruption in higher judiciary by a stunningly candid
acknowledgement about the sleaze prevalent in the country’s largest High
Court. “Something is rotten in the Allahabad High Court,” Justices
Markandey Katju and Gyan Sudha Misra said in November last as they
expressed distress over rampant nepotism and corruption in the HC.
“Some judges (of the HC) have their kith and kin practicing in the same
court, and within a few years of starting practice, sons or relatives of
the judges become multi-millionaires, have huge bank balances,
luxurious cars, huge houses and are enjoying a luxurious life. This is a
far cry from the days when sons and relatives of judges could derive no
benefit from their relationship and had to struggle at the Bar like any
other lawyer,” the Bench said. “There is something rotten in the
Allahabad High Court,” observed the Supreme Court judges. Justice
Soumitra Sen of Calcutta High Court has been impeached for mixing the
money he received as Court Receiver in a case as his personal money and
thus converted the Receiver’s money to his own use which is tantamount
to misappropriation of the sale proceeds.
But Supreme Court too has now fingers pointed at its judges.
Former law minister Shanti Bhushan created a sensation in September last
in the Supreme Court when he moved an application accusing eight former
chief justices of India of “corruption”, and dared it to send him to
jail for committing “contempt of court”. Taking strong exception to such
judicial misconduct, Supreme Court also said, “The faith of the common
man of the country is shaken to the core by such shocking and outrageous
orders such as the kind which have been passed by the single judge.”
After venting their feelings, the two judges said both the Allahabad HC
and its Lucknow Bench “needs some house cleaning”. And now former chief
justice of India K G Balakrishnan has come under the spotlight for
having amassed wealth in his name as well as his nearest kins
disproportionate to their sources of income. The former Supreme Court
judge V.R. Krishna Iyer, informed this month that a former judge of the
Kerala High Court had requested him not to write to Prime Minister
Manmohan Singh on the issue relating to family members of Justice K.G.
Balakrishnan. “A judicial scandal has always been regarded as far more
deplorable than a scandal involving either the executive or a member of
the legislature,” the three-judge Bench of Delhi High Court headed by
chief justice AP Shah said. “For a judge, to deviate from such standards
of honesty and impartiality is to betray the trust reposed to him. No
excuse or no legal relativity can condone such betrayal. From the
standpoint of justice, the size of the bribe or scope of corruption
cannot be a scale for measuring a judge,” said Justice Shah while
writing the verdict for the Bench. If the judges are found to be unable
to skirt lure of lucre and indulge in unlawful activities for
self-aggrandizement, how could one expect fair judgment from them? There
is every possibility that judicial verdicts would in that event be apt
to be tilted towards the side favourable towards serving personal
interest of the judges and thus might well be in violation, at times
fragrantly, of the laid down rules and procedures and thus contrary to
what exponents of bourgeois judicial system like Mill, Bentham and
others contemplated and formulated.
Degenerated Judiciary-boon for the rulers
And if judiciary is stripped of fairness and justice, the
oppressive rulers are bound to have heydays enacting one after another
black acts to render the legal system of the country further crippled
and deformed and merrily use it to their advantage and class need. And
now with promulgation of UAPA and other black acts, it has become more a
one-sided affair with the authorities having unlimited power to arrest,
detain and slap any punishment on anybody anytime merely on the basis
of ‘suspicion’ or ‘surmise’. And practically in complete subversion of
the very basic tenets of bourgeois legal system enunciated by the
proponents of bourgeois democracy during the period of its advent, the
onus of proving innocence now lies with the person accused of crime or
violation of law while those bringing the charges against him have
practically no obligation to prove the same. It is also pertinent to
mention that draconian black acts like PDA, DIR, MISA, TADA, POTA which
have been previous avatars of UAPA were never used to book any hoarders,
blackmarketers, black money operators, market manipulators,
unscrupulous traders, punters, underworld dons, persons indulging in
malfeasance and misfeasance, willful defaulters to bank loans or crooked
owners merrily embezzling employees’ provident fund or other miscreants
visibly acting against the interest of the countrymen. Rather, they
have all been misused or to be exact, used to curb individual freedom,
curtail individual right or muzzle voice of protest, disagreement or
dissent, circumvent social urge and aspiration, bully the opposition,
crush people’s movements and intimidate as well as falsely implicate
citizens or organizations who do not meekly surrender to the whims and
dictates of the political party or parties ruling at the centre or
in the states with the backing of the ruling bourgeoisie. Emboldened by
such anti-people enactments, the ruling class and its agents send out
veiled threat to all right-thinking democratic-minded pro-people
organizations and personalities who support the just struggle of the
hapless tribal and other sections of most downtrodden people
doomed to a sub-human life by the power that be of dire
consequence if they continue to do so. In fine, these are nothing but
attempts to use judiciary as an instrument of coercion.
People’s role — sole deterrent
But there is no reason to take it as fate accompli. Abatement
depends on the conscious role of the right-thinking conscientious people
from all sections of the society. When it is found that administrative
fascism is gradually pervading the judicial system as well, they must
stand up firmly and mobilize public opinion against this ongoing
degeneration of the judiciary. Right of the people to organize
democratic movements against all kinds of social injustice, oppression
of the vested class, anti-people measures of the government, corruption
of the bureaucracy-administration and people in the seats of power are
morally and legally recognized in democracy. Voicing protest is a
democratic right of every citizen. So is the right to expression. Mass
movements are conceived in democracy as correctives, as check and
balance. Hence, in order to thwart full-fledged fascism, powerful
democratic movement must be developed throughout the country to stem
this decline of judiciary. There is no other remedial course left
before the people in this decadent moribund capitalist regime where like
everything else, legal system is also sought to be merrily tampered
with to suppress common toiling people. Let alone the bourgeois parties,
when even the pseudo-Marxists have completely abandoned the path of
movement for pelf and power, it is the SUCI(C) which alone is holding
aloft the banner of left-democratic movement and thus is the only ray of
hope before the suffering people.
