Guilty before proven guilty--by Ajai Sahni - Director of Institute of Conflict Resolution

Guilty before proven guilty--by Ajai Sahni - Director of Institute of Conflict Resolution

The verdict given by the Second Additional Sessions Judge at Raipur in Dr. Biyanak Sen case has attracted lot of publicity and generated much heat. At one end of the spectrum are those who argue that no quarter should be given to those who are seen to hobnob with Maoists. Since Maoists don't accept the Indian constitution or State, and in fact seek to liquidate it, anyone seen even remotely associated with them deserves no sympathy. So what Dr. Sen got, life behind bars, is well deserved. At the other end of the spectrum are those who argue that Sen was a good doctor, a gold medallist from a prestigious institute, a man who toiled for providing health care to most poor & vulnerable sections of society, and therefore arraigning him before any court itself is a case of gross miscarriage of justice. Both positions fail to appreciate the nuances of the liberal democracy that India is supposed to be with all its warts and imperfections. The premises of the liberal democracy are themselves open to scrutiny and critique, but so long as the decisions of the courts operating within the framework of that liberal democracy are to be examined then one would have to willingly bind oneself to the discipline it imposes. More so, because advocates of both the positions claim to be the true followers of Liberal Democracy, it is another matter though that they deny the same inclusion to the opposite side. Judged on this touchstone, the positions taken by both sides fall woefully short of sound reasoning and careful attention to facts. A case of lot of sound and fury, but very little substance. Based on this perspective, the article below in Hindustan Times by Ajai Sahni - Director of Institute of Conflict Resolution, is simply outstanding.
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Guilty before proven guilty

In the stream of 'civil society' responses to Binayak Sen's conviction on sedition and other charges, and his sentencing to life imprisonment, there is a strong element of pious indignation against the very idea of accusing Sen. He is described as a 'human rights defender', a benevolent doctor, 'a gold medallist from the Christian Medical College in Vellore... with the world at his feet', who dedicated his life to serving the poor.

It's useful to recall here that Kobad Gandhi, who was arrested in Delhi in September 2009, was a Doon School, St Xavier's College and London-educated chartered accountant. Numerous testimonies by perfectly respectable people assure us that he is a rather decent soul who also gave up a life of privilege and luxury to 'struggle' for the oppressed. Since he, nevertheless, rose to the membership of the Maoist Politburo, it must be conceded that some of the culpability for the many crimes committed by his 'comrades' would naturally fall on him.

History is, indeed, replete with examples of 'the great evil that good men do'. Subjective virtue has little to do with culpability, and the arguments advanced on this sentiment have no bearing whatsoever on Sen's conviction (though such considerations, and the absence of prior convictions, should certainly have had some bearing on sentencing).

A parallel line of argument is that Sen, who's "worked for the poor of the country for 30 years”, has been "found guilty of sedition and conspiracy, when gangsters and scamsters are walking free”. This, again, has no acceptable resonance in law. The fact that some get away with outrageous crimes can't be grounds for not punishing others, who are found guilty even of lesser offences.

It must be recognised, moreover, that the creation of a range of 'front organisations' and the use of an overground network of sympathisers and 'useful idiots', are integral to the Maoist strategy and tactics to advance their 'people's war'. 'Civil society' activists often demand impunity for themselves, even as they call stridently for accountability in all others. This is, obviously, unacceptable. The NGO sector, with its expanding role and patchy record, must be under as close a scrutiny as any other institution. Enforcement officials are often justified in their rantings against unscrupulous, compromised and criminally complicit NGOs, and the ministry of home affairs annually brings out inventories of blacklisted organisations in this sector. The law of sedition must rein in elements among these who cross given lines.

To move from this point to a specific allegation of culpability, however, requires a case to be built. The point is not that Sen's virtue is beyond the possibility of suspicion because he is a 'good man'. The scandal of the Binayak Sen judgement is that the evidence against him is appallingly weak.

Even on the most cursory examination, no self-respecting investigator or prosecutor would have taken this case to court, and it's evident that purely extraneous factors have engineered Sen's ordeal. This case is, indeed, an index of the incompetence of the State and its agencies. Once again we are brought back to a consciousness of the tremendous infirmity of the Indian State; its inability to secure its objectives by due process; its consequent desire for and resort to short-cuts and quick fixes. In this sense, what we have here is the judicial equivalent of a fake encounter — a paper-thin plotline; dodgy witnesses; incoherent, internally contradictory testimonies from tainted, partisan, sources; and the visible neglect or suppression of convincing evidence that undermines the State's case.

Some supporters of the Chhattisgarh government have facetiously argued that if a 'judicial error' has indeed occurred, 'judicial correctives' will 'soon' restore the balance. Given the evidence on record, it's inevitable that this judgement will be overturned by a superior court — probably the High Court, and certainly the Supreme Court. This would be acceptable in a system where minimal efficiency was available in the judicial process, and minimal acceptable standards of living existed in our jails. What we have, instead, is a process of 'punishment by trial', where judicial delays and incarceration during trial become powerful weapons in the hands of unscrupulous, often vindictive, State agencies, to intimidate and repress vulnerable individuals.

Several luminaries have argued, ignoring the absence of evidence in Sen's case, that no leniency should be shown for those engaged in 'sedition'. An examination of the record would demonstrate that most of these, in other circumstances, have argued that the Maoists are 'not a law and order problem', that 'these are our people', and that 'negotiations' or 'development', and not the use of force, offer the only constructive solution to India's many insurgencies. At a time when the Union government's interlocutors are desperately supplicating those who openly and violently preach sedition in Jammu and Kashmir, and when the prime minister himself has seen fit in the past to sit across the table with terrorists, the postures of moral outrage against Sen are beyond hypocrisy.

The settled law of sedition in India recognises an offence only where a clear intention to incite violence or public disorder is demonstrated 'beyond doubt', on impeccable evidence. What we see in the Binayak Sen case, instead, are politicians and policemen in search of symbolic quick fixes, unwilling to go the necessary and difficult distance to build the capacities to fight the Maoists, or to construct a convincing case against their front organisations and collaborators.

Frustrated with the failure of their 'counter-insurgency strategies', ineffective State agencies are venting their rage against vulnerable targets. In the lexicon of those who have orchestrated this judgement, this was necessary to 'teach a lesson', or to 'send a strong message' to those who collaborate or sympathise with the Maoists. This can't be the purpose of the judicial process or of the law of sedition.

Ajai Sahni is executive director, Institute for Conflict Management. The views expressed by the author are personal.
http://www.hindustantimes.com/StoryPage/Print/645377.aspx