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.
Judgment on Dr Binayak Sen portends an ominous future
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.
