Some of the right wing chatterati notably Swapan Dasgupta , Joginder Singh, Chandan Mitra and Kanchan Gupta persist in their efforts to label Binayak Sen as a maoist activist, ideologue or sympathizer. Their persistence is partly a response to the immediate, public and generous chorus of outrage that greeted his sentencing to life imprisonment.
A few mainstream media outlets had been reporting on the developments in the trial as it progressed, and it was clear even before the judgment appeared that much of the evidence against Binayak Sen was fabricated, and the prosecution witnesses had failed to substantiate the charges. See especially these reports in The Hindu.
As soon as the judgment appeared, at least two things became quite clear to anyone who took the trouble to read it and the copious and public legal scrutiny that it has generated: firstly, that the judgment was a miscarriage of justice, being secured on extremely dubious evidence; and secondly, that it ignored established legal standards of conviction.
Here are the judgment in Hindi, and a translation in English
and critical commentary on it by
Dr. Ilina Sen, Ms. Sudha Bhardwaj, and Ms. Kavita Srivastava
Professor Madabhushi Sridhar at the National Academy of Legal Studies and Research University of Law, Hyderabad
Times of India
But the right wing chatterati are not interested in the arguments, but in continuing their smear campaign. It would be a mistake to expect anything less - like an attempt at objectivity or a mildly self-critical stance - from those who have never engaged in any act that could be remotely suspected of compassion or the relief of suffering, but who have instead prostituted their formidable intellects and academic distinctions in the service of a majoritarian victimology. Slander and smear are their weapons in the service of political authoritarianism, and they wield them with a cultivated genius.
The only way they have found of justifying this is by insisting that the law has charged and sentenced him in a supposedly fair and open process. So in their view, until the judgment is overturned on appeal, it is fair to continue to smear Binayak Sen as a maoist, despite his long and distinguished public record of service to the poor and his statements on the futility of violence. Their only response to a judgment that beggars belief is to demand a willing suspension of disbelief in our judicial system. For them, the law has spoken, and must be respected, even if it is patent to anyone with a rudimentary capacity to reason that the judgment was wrong.
This principle of the majestic infallibility of the law assumes that the law can seldom be wrong, and in the rare cases of error, can be quickly rectified. It also requires that people refrain from using their powers of reasoning in public. This is a country where judicial malfeasance, especially in the lower branches of the judiciary, is part of the everyday reality of massive and pervasive corruption. When the very air we breathe has been so fouled that fresh, clean air is an exception (and the judiciary in India is probably still the part of government with the greatest credibility), we are asked not to complain about the malodorous environment, lest we upset those whose job it is to keep the air clean.
The right wing chatterati also attack Binayak's defenders on the following grounds:
1. If every legal judgment were to be open to public discussion and an occasion for aggrieved parties to vent their outrage, the law would become a travesty. The only place to settle a legal argument is in a court, and the only way to remedy a judicial error is through appeal. But what if the law is made a travesty by the way the judgment has been reached? And what if the resulting injustice is apparent not just to leading luminaries in the legal profession, but also to the public? In what kind of democracy would an enormity of this magnitude be left unaddressed? Shouldn't the public express its concerns when the little trust there is in the judiciary is further eroded? Actually, Binayak's case is one of those rare cases of injustice where public opinion has been mobilized. Most of them remain unknown, or sink into oblivion after some brief publicity. Public opinion is generally either silent or amnesiac. By contrast, Binayak's case is an all too rare opportunity for the public to make its concerns known. (This is where I think the attention of activists should focus more broadly on the issues that Binayak's case raises, than on the man himself, although the man and the issues that he represents may not always be clearly distinguishable.) Only one blinded by unthinking loyalty to the state would insist that in a democracy, the public has an obligation to remain silent in the face of gross injustice.
2. Democracy and free expression cannot be allowed to criticize the judiciary, because if judges do not remain aloof from and uninfluenced by public discussion, then their courts could become vitiated by the interference of the media. Law courts would in effect be replaced by the courts of public opinion. Those making this argument seem to have little problem with the Supreme Court death sentence on Afzal Guru citing the "conscience of the nation" as a reason, despite the flaws in the evidence that the judges themselves acknowledged. Wasn't the court influenced by public opinion on Afzal Guru rather than the strength of the evidence? More substantively, I am in agreement with this argument, but in order for the courts to be trusted by the public, they must be seen to be fair. True, their functioning is undermined if their decisions remain the subject of argument. Nor is the public always the best judge of the functioning of courts, because of the many technical issues of law. But when courts undermine public trust by being as flagrantly in favour of one side, as the trial court has been in Binayak's case, then public discussion is inevitable and justified.
3. Those who publicly declare their lack of confidence in the judicial process seem to muster enough confidence to launch an appeal. This is not a matter of choice or confidence, but because if a remedy is to be found, it is to be sought within the system. The alternative is to accept the injustice. I believe the system does allow for the trial to be conducted outside Chhattisgarh, but we cannot know if such a request would have been granted. At any rate, the failures of the judicial system are so pervasive that even if Binayak's verdict is overturned on appeal, that by itself will not restore public confidence in the integrity of the system. As I said in the previous entry in this blog, the fact that there are moments of lucidity in a patient dying of brain cancer, does not entitle us to place great confidence in the patient's state of health.
4. The concern for human rights and justice that Binayak's defenders express must be specious, because when maoists use violence to kill innocent villagers, policemen and other state functionaries, and seek revenge through their kangaroo courts, the human rights wallahs have never condemned such acts of violence with the same force as they condemn the violations of the state. This argument has been rebutted so persuasively by some of Binayak's supporters on the Save Binayak forum, that I can do no better than to quote them directly.
Mary Ganguli 11 Jan
I think there is a fundamental misunderstanding in these people's minds, which is being exploited by those who wanted Binayak convicted.
1)Maoists don't believe in the state and they operate outside the state's laws, i.e. they are outlaws, and whether their original goals are noble or not, their violent methods are unlawful; they can and should be prosecuted under the law by the state and its agents.
However, Binayak Sen is not a Maoist, and he has openly repudiated the Maoists' approaches as "invalid and unsustainable." His opponents' arguments seem to all be based on the false assumption that he is a Maoist.
2) The People's Union for Civil Liberties was founded by Jayaprakash Narayan to hold Indira Gandhi's government accountable for its violation of civil liberties during the "National Emergency" in the mid 1970s. It is still carrying out the same function, i.e. holding the state and central governments accountable for violating the civil liberties of its citizens. By definition, the state is supposed to uphold our civil liberties, and should be brought to book when it violates them Only the state can violate them. If someone breaks into my house and steals something, he is charged with a crime, not with violating my civil liberties.
3) In other words; the state is supposed to prosecute the outlaws, and non-state agencies such as the PUCL has to hold the state accountable when it violates its own laws. It is a matter of checks and balances which are central to a functioning democracy.
4) So it is a false argument for the RSS and others to criticize the PUCL and Binayak Sen for not spending their time criticizing the Maoists. That is not the role of the PUCL. By analogy, it is not the role of the bookseller to sell bread or the baker to sell books.
5) Surely we have a right to expect the state and its agents (e.g., the police) not only to uphold the law but to maintain a higher standard of lawfulness than we expect from the outlaws. When the state break the law and violate the civil liberties and human rights of citizens, someone has to hold them accountable; otherwise, we would be living in a police state.
Margaret Dickinson 11 Jan
Perhaps one can go a little further by pointing out that those who complain that we are not criticising Maoists in the same way as we are the forces of Government are by implication suggesting the Maoists and the Government as equivalents. So, are they both criminals or both legitimate political entities? As you say, Maoist don’t pretend to be operating within the law as it stands. So, to whom could one usefully complain about their behaviour? By suggesting that the public should put the same energy into criticising Maoist killings as into unlawful police killings suggests that the Maoists are a legitimate alternative government. Surely the friends of Raman Singh do not think this? And if they don’t, then there is no substance to their case.
5. Satya Sivaraman (Save Binayak Forum 11 Jan) introduces another counter argument to the constant slurs by association that the right wing chatterati apply to Binayak:
To add to all these excellent arguments I would suggest that the editors of the Organiser also explain how come senior members of the RSS and its sister organisations have now been caught (Swami Aseemanand, Indaresh Kumar) carrying out bomb blasts in mosques in Malegaon, Ajmer, Hyderabad and the Samjhauta train bombing. We do not know yet which other terrorist attacks they have been responsible for in the past twenty years but we do know that in Narendra Modi's Gujarat they killed around 3000 Muslims in broad daylight eight years ago. They are as much against the Indian Constitution as the Maoists are. And if the dubious principle of guilt by association is to be applied to them- as has been in the case of Binayak- then several BJP Chief Ministers will find themselves charged with 'sedition'. And when that is done they will discover the merits of having some human rights wallahs take up their cases and insist on democratic norms, due process of law, a fair judiciary etc.
Lastly, here is a deliciously sarcastic reply to the arguments of the right-wing chatterati (H/T Khushwant Singh)
The guilty doctor
We have the greatest respect for our judiciary
Not just for the justice done but also its travesty
Hence the butchers of nineteen eighty four roam free
And the murderers of Gujarat have boundless glee
While a doctor who looks after the health of the tribals and downtrodden,
Whose services make him one in a million
Is a guilty man of the nation.
Against our great nation, he waged a fight
For, whatever the police says must be right
So he should get a taste of this country’s might,
While the scamsters and swindlers, for their brilliant record
Should never be held guilty of fraud
And because our judiciary can never fail
Dr Sen will remain in jail.
(Courtesy: Kuldip Salil, Delhi)