Saturday, January 22, 2011

Judging a Judgement?

Recently Professor David Cole of Georgetown University has written a thought provoking op-ed article in New York Times . The article questions the approach which branded the acts by Michael Mukasey, Rudolf Giuliani and France Townsend, all formerly associated with the highest echelon of US governance, as criminal act, a felony as stated by some. Actually, this trio, at a recently held conference in Paris, talked in support of Mujahedeen Khalq, a ‘foreign terrorist organization’ as labelled by the US Government. As the government stance goes that material support to such organization is not confined within financing them or providing them with support by means of other ‘tangible aids’, but extends also to making public speech which is likely to act as a moral booster to such organization or consolidates public support behind such organization. In other words any public display of any kind of association with such organizations, material or moral, actually consolidates such organizations’ support base, materially and tangibly and is thus prohibited under the US law.

Professor Cole, a legal expert himself, has long been advocating for human rights and here again he raises the debate about the right of people or groups which work for upholding the rights of the members of such off stream organizations. In the process he traces out examples from American legal history to prove the merit of his argument. We are neither legal experts as Mr. Cole, nor are we Americans. But, the issues raised by Professor Cole have some universal value. It will be clear if we leave the American context and to borrow a Deridaean term, ‘deconstruct’ his article, to construct our idea or understanding of what all the fuss is about a verdict recently pronounced by a sessions court in Chattisgarh, India, a place surely far away from US or Paris.

The verdict given by some learned judge of the session’s court in Raipur has recently been a point of focus for the media, local and also global, as the members of civil society are visibly upset with the judgement. The judgement pronounces one Mr. Binayak Sen guilty in charge of sedition and sentences him lifetime imprisonment. Now who this Binayak Sen is? As reported by the media and his colleagues Mr. Sen is a qualified medical practitioner; he passed out of one of India’s best medical colleges. But instead of relishing the butter which he could have easily made with his Paediatrics degree, as believed by many, he found bliss in sharing his bread with the poor, the left behind mass of Chattisgarh. He had been vigorously working towards the betterment of their lives at that infamous, nowadays notorious for ultra-left wing militant groups, corner of the country until he was arrested. Apart from serving the poor in his capacity as a medical practitioner he widened his domain of service to human rights activities and the like. He raised his voice challenging the very legitimacy of Salwa Judum, a so called anti-terrorist group, privately and dubiously managed and sponsored, reportedly, by the state, perhaps at a time when only a handful of people outside Chattisgarh were aware about the existence of such a savage and brutal mercenary raised, again reportedly, by the state. However, the Chattisgarh Government put charges of sedition against him, and the court found them sufficient to pronounce him guilty to such extent that it awarded him with the maximum penalty sanctioned for such a crime under legal provisions, a lifer. So far what can be deciphered from media reports, the court found the facts that Dr. Sen had frequently visited an elderly Maoist leader in jail, and passed a letter from him to another Maoist operative in Kolkata to be tantamount to sedition.

This shocked many, who knew Dr. Sen personally or somehow came to know about his selfless deeds. Almost the whole civil society, across political or ideological lines have come in Dr. Sen’s support and condemned the verdict. According to them Mr. Sen has never ever advocated violence leave alone himself resorting to it, nor did he support the Maosists. Among them are many high profile intellectuals like Nobel laureate economist Amartya Sen, whose commitment to democratic values are well known, Ramachandra Guha, the noted social historian and commentator of our time, to name just a few. Dr. Sen’s former as well as present colleagues are also seen in solidarity with him and support for Dr. Sen is flooding also the internet via online petitions and appeals. But to whom actually are these petitions being or intended to be sent? Bibek Debroy, another noted social scientist who somehow is maintaining some distance from the majority on this issue, has raised this question. In his article titled National Autocratic Council , Mr. Debroy has put his logics one by one. He in his article stresses that most of the people who are reacting to the judgement have not gone through the verdict; he is rather confident that none actually has gone through the verdict. As he says, most of them are reacting to the information made available by the media and other such agencies. Thus, the critics of the judgement are disqualified outright by Mr. Debroy. Secondly, he insists that since there is a systematic and tested judicial structure, one, if not content with a particular judgement, should follow the proper channel, of appealing before a higher court. If someone or some group, instead of seeking justice at the right door opts for media trials or other such platforms to upheld their or Dr. Sen’s democratic rights, that act itself in a way illustrates scepticism about a legitimate institution within the dynamics of democracy and the various layers of process it involves, and thus, Mr. Debroy opines, amounts to disrespecting democratic ethos. Thus, the commitment to democracy of all those who are advocating for Mr.Sen and criticising the verdict, have been questioned by Mr. Debroy. Besides, he also reminds us that one might have served the society in exemplary way, but that neither qualifies him as ‘incapable’ of committing a crime at any point of time, nor does it make him immune to law, if he commits one.

Mr. Debroy and some other people sharing his view have recommended measures following proper procedure rather than allowing the issue to be sensationalised by the media or getting carried away by such sensation. All these logics hold good to some extent. Indian media has recently earned something which cannot be termed as good repute in its handling of various issues. There remains a question whether such kind of media activism is really effective in sustaining the cause or it only helps the media houses earn more TRP, particularly so when it receives encouragement and support from such big names from the intelligentsia. In this regard, what automatically comes to mind was the lines written by Ramachandra Guha in his famous article The Arun Shourie of The Left : “Celebrity endorsement of social movements is always fraught with hazard. In the beginning, it may attract media attention, and draw to the cause previously silent bystanders. However, the media will soon abandon the cause for the star, and the converts will soon return to their humdrum lives.” In that particular article he also accused Arundhati Roy of being more sentimental in her approach than logical. Interestingly enough, in his more recent article Not to Question Why he gave a very touchy account of how Binayak Sen, under the inspiration of the maverick socialist and activist Sankar Guha Niyogi, plunged into social work among the downtrodden and often displaced people of Chattisgarh. Being acquainted with Dr. Sen’s work for long, he too, in this case might have been a bit sentimental, when he came to know about the punishment imposed on him, instead of the recognition and reward that should be bestowed upon the selfless man he knew. But, he has not cited sufficient reason as to how the charges against Dr. Sen could be proved void. As a matter of fact, one cannot be sure whether the petitioners are asking for a waiver on the ground of Dr. Sen’s positive contributions or credentials; or whether they have detected any error or are smelling any foul play associated with this particular judgement by a particular judge; or whether they are really sceptical about the potential of Indian judiciary to deliver justice as a whole. Mr. Guha and Mr. Amartya Sen, however have a credential of respecting both the system of democracy and its organs to the utmost. So what calls for writing such articles or making public statements on their parts? Instead of being judgemental about a judgement of a learned judge, which few of us dare venture into, partly because of our lack of legal knowledge in general and partly because of the fear of committing a contempt of court, or questioning the wisdom of persons involved in the debate from either side, we better try to understand both the viewpoints.

People condemning the judgement have not, at least publicly, showed their scepticism about the judicial process in general. They mostly questioned or expressed their astonishment on how a mere acquaintance or association with someone considered as a Maoist can amount to a crime or how somebody who never directly contributed to Maoist violence or incited it can be branded a criminal or an anti-national, if he just supports the Maoist ideology, if we presume for that matter that Dr. Sen did so though his supporters have staunchly rejected even such a conjecture. People criticising the judgement are perhaps criticising the law on which such judgements are based. Such laws in the present context of our country, world’s largest democracy as we often refer to it, have long been viewed as ‘draconian’ and ‘outdated’ by the Indian intelligentsia. Of course, people directly involved in governance often advocate the necessity of such laws in light of what they call their pragmatic view. The verdict in concern has actually offered us a scope to sharpen this debate as we enter this new decade. Such laws are of course not created by the judges but our politicians. So merely criticising a judgement would not definitely serve any purpose effectively. But such movements if gains the optimum momentum, will undeniably consolidate public awareness that in turn, who knows someday may manage to bring about some positive change in the broader policy. And despite the negative character attributed to the media, no one can deny their role in building mass awareness in N number of cases from the Jessica Lal case, or Priydarshini Matto case to the more recent Ruchika Girhotra case. Besides, though no one is questioning about the efficiency of our judicial system in general, one must admit that judges are also human beings and hence subject to error and sometimes even follies. Despite the fact that we have a strong and sustainable judicial system, one has to admit of the loopholes in it and the existence of ‘Black sheep’ within the judiciary to quote none other than K G Balakrishnan, the former Chief Justice of India. And there remains the enormous scope for the media to function, not by judging the cases themselves but by creating mass awareness about the present legal structure of the country, the relevance of various laws and policies in contemporary context and the issue of judicial accountability. Yes, the sensationalizing aspect remains there. But one cannot and should not just snub the impact of media for that matter.

As for keeping the media ethics as well as our democratic rights high, we are looking forward for such erudite people as Mr. Amartya Sen, Mr. Guha, Mr. Debroy and the like, who are very well aware of the process in which different agencies of democracy function and should function. Instead of getting drifted to either extreme ourselves, let us watch them debate and try to gather a little bit wisdom for ourselves in the course of this great democratic process. Let this dialogue lead us to the avenue of a better democracy.

All said, the general Indian wish at this juncture, perhaps, is that all the praises made for Dr. Sen prove to be real and may he come out clean in some later judgement. That, though would put this specific judgement in question, will reaffirm every Indian’s faith in its judicial process, make them proud of their coveted democracy and will present before them a truly inspiring Indian alive, that to say if even the half of the praise bestowed upon Dr. Sen’s positive contributions are true. In contemporary India we really lack in such inspiring figures who devote themselves to light up the lives of its people in such a way.


Gautam said...

I came to your blog via a post about my brother Binayak from another Sourav writing in The NRI blog. Very sensible and balanced writing, without directly taking sides in the issue. But I don't agree that it will restore the public confidence in the judiciary if my brother finally meets justice at some higher court, whether in Bilaspur or in New Delhi. The reason is that - as Binayak himself insists - he is only one person among thousands of victims of the miscarriage of justice mostly in the lower courts. Unless the independence and accountability of the jusiciary is restored, public confidence will remain low, irrespective of what happens to Binayak.

I invite you to read my own blog Gyanoprobha at

Gautam said...

Thanks for an impartial and thoughtful comment about my brother Binayak Sen. I came to your blog from your reply to the other Sourav (Roy)'s posting on the same subject. I disagree though with your belief that public confidence will be restored if Binayak receives justice at one of the higher courts (either at Bilaspur or New Delhi). As Binayak himself reminds us often, we should not focus on him personally, but on the issue of the human rights, whether of tribals, of Dalits, or of prisoners held without trial, or of the malnourished people he was lecturing about all over the country. Seen in this context, Binayak's release will not prove that the system works unless the state of governance in general, and of the judiciary in particular, ensures that the state acts to uphold its constitutional obligations. After all, the fact that a patient with brain cancer has occasional moments of lucidity does not mean that the cancer has disappeared.

I invte you to read my own blog Gyanoprobha, where I have written extensively about my brother and other matters.

Simply Sourav said...

@Gautam: Thanks for your feedback.
I also stressed on the same point as you did- about the the scope of reform in our systems of democarcy in general rather than focussing on a personal case, to which however thousands of Indians are associating themselves. In my writing I laid emphasis on the scope to engage ourselves in the dialogue concerning these necessary reforms. Yes, you are right as you say that justice in one case would not consolidate the public belief in judiciary, if statistics show the usual way to be the opposite.But, perhaps hundreds of Indians today want justice for Dr. Sen with the hope that this would be a milestone. May be truth is somehow distant from such hopes. But,what else can we do other than being optimistic towards a noble goal? Probably Dr. Sen was also motivated by such positive spirit when he thought that his bit of service in some remote part of India would really contribute towards a better day for India in general.
Thank you once again.

Anwin said...

Hi Sourav,

Have you registered for the Kolkata IndiBlogger Meet? After a long time the IndiBlogger wagon is coming to our favorite city Kolkata. Hope to meet you and other bloggers at the meet.

IndiBlogger Team