CONSTITUTIONALISM AND STATE FAILURE

The constitionalist luminaries over at Acorn are always great advocates of supporting the state, "law and order", and upholding the constitution. "You must take a constitutional, law-abiding route if you want to take up something as a political agenda," Nitin Pai urges one of his correspondents. And indeed so we should. 

But what happens when the state itself acts against the interests of significant sections of the citizens, or has been corrupted enough for its institutions to become power centres up for sale, or has turned into a rogue state? In other words, what is the role of parliament, and what is the point of established constitutional procedures, when the separation of powers breaks down, and all the instruments of state - including law and order - become tools in the hands of particular interests? What happens when the state acts contrary to the intentions of the constitution? Does the constitution prescribe or imply limits to the actions of the state when they come into conflict with the rights of its citizens? What are peaceful and law-abiding citizens supposed to do when the state acts without the participation of the people affected by its policies, without any accountability to the people affected by its actions, responding forcibly with violence even to non-violent expression of the suffering of citizens, and  when the processes of governance are opaque to the citizens whom the state is supposed to govern? Does it not matter what kind of state we are referring to: a state that is a servant of its citizens, or a state that, motivated by the greed of its functionaries, acts as a facilitator for only certain interests - domestic or foreign - at the expense of the general mass of the people?

In his Independence Day posting, Nitin Pai reminds us approvingly of the words of Ambedkar pleading for an end to what he called the 'grammar of anarchy' - an end to all extra-parliamentary forms of agitation for change, including Gandhian satyagraha, now that the constitution had vested in parliament the power to make changes on behalf of the people who elected its members. Some sixty years later, Pai seems to think, the powers of parliament to give people a voice in determining their own political destiny - rather than having it determined for them - remains undimmed.

Surveying the political situation of his country from the summit of his achievement, Ambedkar might be forgiven for overlooking the possibility that parliament and the political process itself might one day become vitiated by venality and corruption. But I can't think why it should escape as thoughtful and observant a commentator as Pai that this corrupt variant of parliamentary "business-as-usual" politics fails to serve large sections of the people at all, while serving others very well. And if it does not escape his attention, why does he uphold business-as-usual? What is it that he dislikes about non-violent methods of protest and struggle against a state that has turned violent and oppressive? Does he look upon them as the thin end of a wedge that can split the country apart into anarchy? What would he recommend to the tribals of Chhattisgarh and Orissa when they find themselves displaced forcibly from their forests with which their entire way of life is intimately connected? Or to dalits and peasants, facing the murderous effects of development and trade policies that plunge them into debt and deprive them of their livelihoods? That they write to their MP's to express their desire for redress?

I am not here pleading for an abandonment of the constitution, or a descent into anarchy, but a more vigorous use of the constitution both by the state as well as by civil society. If the state were to obey its own laws, adhere more faithfully to the intentions of the constitution, stop arming itself with greater powers of curbing freedoms guaranteed in the constitution in the name of national security, take more vigorous steps to ensure individual property rights to not just private property but to traditional common property resources such as forests, lakes and rivers, design a more inclusive (and not a predatory) model of development implicit in the constitution, then perhaps the state would fulfill its obligations towards its citizens in a way that would obviate the resort to extraconstitutional means of protest.Civil society could use the constitution to demand the four PARTs of democracy - Participation, Accountability, Responsiveness and Transparency.

Take the case of Dr. Binayak Sen. Pai and friends think that Dr. Sen has full access to the legal processes of the country: after all, he is being brought to court and is being defended by lawyers against accusations of being a terrorist engaging in treason. Let the law take its own course, they say. As it happens, my brother is exceptionally lucky that he is being held under relatively good conditions - no torture, trial in open court (despite an attempt to bar entry to the public), a world-wide network of friends and supporters who are able to publicize his case. But as he told our youngest brother Dipankar: "I am just a name and a face for the thousands like me [who don't have these networks of support]. Who speaks up for them?" So what happens to the thousands of undertrials languishing in jail without the benefit of a trial, lawyers, a chargesheet and the full panoply of a justice system, because they are too poor and therefore too powerless for anyone to speak up for them? To compound the enormity of the injustice, most of them in fact happen to be innocent. The reason why they are languishing in jail is that the state has ignored its obligations under the constitution, and has kept them imprisoned despite lack of evidence. How does strict adherence to constitutional procedure in trying to administer justice to these people help them, when the state itself is deliberately in violation of its constitutional obligations? Ask the Gandhian activists at the Vanavasi Chetna Ashram. Ask Prashant Rahi.

But even in Binayak's relatively privileged cirucmstances, there is a flagrant failure of justice. I provide below a report of one of his trials by his friend Dr. Sridhar - a third one after my brother Dipankar's and Binayak's wife Ilina's - that substantiates this claim yet again.

Is it business as usual in a constitutional republican democracy for the state to regularly produce witnesses and evidence that fall apart on examination, and are introduced in violation of proper procedures? Is it business as usual for a prisoner to be held for 90 days without charges, denied regular access to lawyers, while the state goes around trying to concoct a case? Is it business as usual for undertrial prisoners to be occasionally removed for fictitious reasons to solitary confinement? Is it business as usual in the case of a prisoner who has not been proved guilty, for the state to continue extending his stay in jail by dilatory tactics in the courts, in the manner described below?

Madhukar Sarpotdar is sentenced after sixteen years of justice for participating in armed riots, all the while roaming free, and then gets a suspended sentence. The rioting criminals of 1984, 1992-3 and 2002 have their cases dismissed while they become powerful politicians, even contenders for Prime Ministership. But Dr. Binayak Sen's reward for thirty years of dedicated service to the poor is an indefinite stretch in jail, under patently false charges of treason and terrorism.

Pai and friends claim to be defenders of law, justice and the constitution. They urge the path of seeking constitutional forms of redress for social injustice in an environment when the very guardians of law and order are acting like wolves. But they paint the likes of Mukul Sharma, as terrorist sympathizers because they plead for adherence to constitutional procedures, and quick dispensation of justice for all, and respecting the rights of individuals - including alleged terrorists - in a liberal democracy. What, I wonder, would be their advice to innocent undertrials, including Dr. Binayak Sen, the most privileged among them? To the peasants displaced without adequate or any compensation for the sake of dams and SEZ's? To the forest dwellers of Bastar, caught between the maoists and Salwa Judum and the security forces? I do not expect an answer from Pai and friends, because they seem incapable of putting themselves in the shoes of such victims of state failure. In their world of political realism, perhaps they do not represent a significant enough interest, and can therefore be ignored. 

Finally, a brief comment on Raman Singh's contemptible reference to Binayak Sen in his independence day speech: "We have nabbed a bearded naxalite...". Indeed, but without a shred of evidence that stands up to scrutiny even in the court of a judge disposed to bend the rules of court procedure to favour the prosecution. Also, as J A points out: "Why imprison an innocent person who has saved many more than 2000 lives from malaria, TB and other diseases? I thought they were trying Binayak on the merits of his own case. It appears that the CM would prefer to try him on the merits of other people's crimes."

And now the report from Dr. Shridhar...

I was in Raipur on Tuesday and attended the hearing for the few hours that it lasted on that day. Met Binayak's lawyer, and had a chance to have a longish chat with Binayak. One Navaz Kotwal from PUCL was present, and said she will attend all scheduled hearings. There was no one other than Navaz present on Monday, and I do not know if anyone else attended yesterday's (Wednesday's) hearing.

The case is dragging on. So far, of the total of 83 witnesses listed, about 25 have been summoned and examined (as of 27th), since Jan. Not all have turned up, and many have been irrelevant. According to the lawyer, virtually all the remaining witnesses are not relevant to Binayak's case, and the only relevant ones are probably turning / have turned hostile. However, since the cases of Narayan Sanyal and Pijush Guha are entwined with Binayak's, it is difficult to expedite this further. Besides, of course, the prosecution is trying its best to prolong the case to the utmost - the trial begins late, examining each witness takes hours of mostly irrelevant detail, there is a long lunch break, arguments verge on the puerile and adjournments happen as a matter of routine. Not more than 3 witnesses are posted each day. On Tuesday, a total of about 90 minutes of examination of one witness was carried out between 11 am and 5 pm - and even that witness was not fully examined, because the defense successfully argued that the prosecution was adding charges that were not originally included in the charge-sheet, and that therefore persual of that point was illegal. Sanyal's lawyer angrily charged the judge with colluding with the prosecution in not following procedures laid down in the law, and suggested that the case might as well have been heard by the prosecutor or the DGP. Apparently, this has been a pattern in the case so far - introducing new witnesses and evidence that were never mentioned in the original chargesheet - and the judge allowing such contravention without a word. Tuesday was one of the rare instances where the judge gave a favourable ruling on such a matter - perhaps because he was personally attacked. Hilarious, but tragic.

They will probably move a bail application for Binayak in the High Court on Friday, although the chances of getting bail are slim. Hoping that a rejection here will provide another opportunity to move the SC. Not much hope, given the utter hostility of the prosecution, and the pressure on the judiciary. In the meanwhile, the trial will limp on.

Binayak has lost weight further since I saw him in December-end, but was pretty cheerful. I could give him a long hug, and felt good about it (though I was later quizzed by the police about who I was and why I was there!). I apologized to Binayak for us not having been able to get him out yet. He smiled and told me to dismiss the thought. Meeting him in jail is apparently much easier now than some months ago. He had asked for permission to get himself investigated for his hypertension, etc. at a facility of his choice, but this was rejected. He appears to be in reasonable health at the moment.

The CM apparently mentioned Binayak in his independence day address - saying something to the effect that "we have nabbed and imprisoned a bearded naxalite, but have received faxes and emails from 21 countries criticizing us for it - and they just don't care for the 2000 widows created by naxalites ...". Ominous.

We chatted about many other issues. He was insistent that I convey his love to "all our friends".

[It] would be nice - if not materially useful - for us to take turns to keep meeting him.

Comments

[M. Fisherman]

In the paper today there was an article about India's use of "brainscans" to convict presumably innocent people in open court. The article said:

"But it was only in June, in a murder case in Pune, in Maharashtra State, that a judge explicitly cited a scan as proof that the suspect’s brain held “experiential knowledge” about the crime that only the killer could possess, sentencing her to life in prison."

A genuinely Orwellian nightmare, a McCarthyesque denouncement. India has lost her soul ... and her brains!

[KB]

I guess the INI discourse points at the anxieties of closet right wingers who mask their outlook by appropriating the language of the left and fitting it into a conservative and rightist agenda. For example on one hand the folks at INI claim support for liberalism and then make a case for limits to proselytism (http://offstumped.nationalinterest.in/2008/08/29/the-case-against-proselytization/). The fact that Acorn makes a McCarthyesque demand that Binayak Sen condemn the maoists gives their game away. This is both amusing and frightening at the same time. Amusing that such shallow patriotic weasel words can be made. Same goes for why it is frightening.