GYANOPROBHA

IS IT TIME TO DITCH DEMOCRACY?

Democracy has suffered recently from the failings of its strongest advocates. I will argue here that its future hope lies in rescuing democracy from faux democrats by strengthening the institutional infrastructure for a populism based on participation, accountability, responsiveness and transparency.

Recently, The Economist has published an essay on the decline of democracy. I generally do not agree with their ideological stance, which usually manifests itself in support of neoliberal economic and neocon foreign policies of the western (NA-UK-EU) alliance. But I do agree with their acknowledgement that democracy has been subverted by the rise of corporate power, and its capture of what is supposedly a democratic state; and by US interventions in Iraq, Libya, Syria and now Ukraine in the name of promoting democracy; and finally by the growing internal legitimacy of authoritarian capitalist states like China and Russia. Democracy has also been subverted in the EU, where referendums have been rejected when they went against the rule of the EU Commissioners, and elected politicians have been replaced by unelected austerity commissioners when the financial elite demanded it (e.g., Italy, Greece). The Economist essay, to its credit, acknowledges a general disillusionment with democratic politics in many countries which are still regarded - with diminishing conviction - as strong democracies. Yet at the same time, there are strong democratic impulses present in countries such as India, where many regard it as having already failed.

Take a closer look at what is happening in the US, which has appointed itself the global guardian of democracy, and arrogates to itself the right to spread democracy and freedom, even if delivered through cruise missiles, cluster bombs, drones, or through the sword of a beheading jihadist, under the pretext of the R2P (Right to Protect) doctrine whose latest exponent is Samantha Power, the US ambassador to the UN. Their serial involvement in catastrophic wars all over the world are giving rise to a state focused on "national security"in the name of fighting "terrorism". This is creating enormous economic and political pressures within the country, to which most people seem blind or indifferent or apathetic, and about whose main trends there is no agreement even among the politically savvy. As far as I as can tell - and I'm certainly not the only one - the US is turning into a plutocratic oligarchy, run by and for corporations and banks. The legislature is by and large bought up by them. What economists call "regulatory capture" (aka the "revolving door" between regulators and industry) has made it impossible to deter widespread criminality, as the cases of HSBC and JP Morgan Chase demonstrate. Ordinary people are getting shafted, the police are increasingly outrageous in their dealing with the public who pay their salaries, and the prisons are already housing the largest proportion of the population in the world. The state is spying on everybody on a scale that would have made the Stasi in East Germany envious. The same is true of the UK, though perhaps to a lesser extent. How can democracy flourish in such a climate, when the two prime examples – even if self-declared ones – are so far in practice from practicing the democracy they preach unceasingly to the rest of the world?

In India, we have an elite full of admiration for "development" with fascist tendencies, while the masses are the only force likely to keep the country from turning fascist. Despite all the corruption, injustice and horrendous inequalities of power and privilege, the people who believe most in the power of the ballot are the "uneducated" masses, whereas the disillusionment with democracy is greatest among the English-speaking, Twittering, Facebook-crazy elite of "educated" engineers, MBA'd business executives, doctors, lawyers and media professionals, who openly express admiration for the next great sectarian and fascist politician to hit India - Narendra Modi, our next Prime Minister.

Another example of an elite-dominated democracy is Turkey. It was long believed that only a westernised technocratically "educated" elite can save the country from chaos. That clearly didn't help, since the westernised educated secular elite was also unable to entirely shed the authoritarianism inherited from its Ottoman past, and failed to hear the voice of common people. It's common to hear them express contempt for the "uneducated". The AKP - having spread the welfare among the previously disenfranchised masses resistant to a secular, westernised version of modernity, and having used the process of membership (now all but abandoned) in a more democratic EU to remove the power of the military - have now given voice to a Muslim bourgeoisie which wants to redefine what it means to be modern. But the political culture of Turkey has not entirely shed its Ottoman roots, and the authoritarianism of the secular military elite has now been replaced by that of the AKP. This has begun to alienate the people who initially benefited economically from AKP policies, and were aspiring to having a greater voice. The Gezi protests and events since then demonstrate that It's still very easy for powerful figures like Erdogan to revert to what I call Ottoman authoritarianism (not Paşa this time, but Büyük Usta), because the culture of anti-authoritarian populism remains weak and unsupported by institutions and laws.

On the other hand, state-controlled capitalist societies like China and Russia are far from democratic, but seem to have achieved a high degree of internal legitimacy by sharing the national wealth with the public, even if they are run by unaccountable and powerful technocratic elites. This has not prevented the rise of a plutocracy, and internal pressures and possibilities of conflict remain, and these do erupt from time to time. It remains to be seen whether this alternative formation (the authoritarian capitalist state) is historically viable in the long run.

With the decay of Anglo-American models of liberal capitalism, and the flourishing of authoritarian but apparently prosperous forms of state capitalism in Eurasia and west Asia at the same time, people are drawing what I believe is the wrong lesson - it's time to ditch democracy.

I can understand -  but do not sympathise with - this weakening of faith in democracy, because as far as I can tell, democracy has mainly been understood as the political order that allows "free-market" capitalism to flourish. But as we are seeing, there is no such thing as a "free market". Real world markets are nearly always managed strategically by the players and regulated by the state. If the players "capture" the state ideologically and financially, then you get a market rigged in favour of the players, who will regard any attempt to curtail their irresponsible freedom to manage the markets as an attack on liberty.  A democracy that is based on a notion of liberty that only recognises the freedom of the dominant players in markets, and leaves no room for other substantive freedoms and some basic forms of social justice for the rest, is bound to be fragile, and open to abuse by the dominant players. This chokes off freedom for all those who do not serve the interests of that closed circle. It results in what has come to be called crony capitalism. But genuine democracy can be designed to prevent it. The so-called Golden Age of capitalism in the so-called West post-WW2 was also a time when a healthy countervailing power prevailed at least domestically against the power of capital.

I don't think we should give up on democracy, but work towards creating the conditions for its flourishing.  The essential feature of democracy is that ordinary individuals should have the power and the opportunity to make public decisions on matters that affect their private decisions, while respecting the dignity and integrity of all other individuals, including those who may be part of a minority on any public issue. In my view there are four essential conditions for this rather demanding feature to be realised. These are participation in public life for ordinary citizens beyond just voting once every now and then; accountability and responsiveness of those who have power to the people on whose behalf they exercise it; and transparency of processes through which power is exercised.

Now these four conditions require vigilance, hard work at understanding the issues and formulating good arguments, patience in taking seriously positions that one disagrees with, and above all, education, so perhaps they are not "realistic". The fact is that even though there are no perfectly democratic societies, some societies have come much closer to these ideals than others. And the process of moving towards greater substantive democracy (in my fourfold sense) rather than simply formal (electoral) democracy is long and messy.

A liberal capitalist order is like a well-designed garden without a gardener: eventually the freedom to flourish allows some plants to take over and choke the beautiful flowers and trees bearing nourishing fruit. The people using the garden need to understand that freedom to enjoy the garden and its products and beauty requires a gardener that can tend the garden and keep the weeds and other more useful but fast growing plants under control. The gardener too is a servant of those who employ him, and can't be allowed to get away with planting anything he pleases. If the gardener is to serve the people, rather than an unaccountable elite, then the people need to understand how the gardener works, and share some of his knowledge of gardening, and should even participate collectively in maintaining the garden.

The trouble with most capitalist democracies is that they have turned out to be too weak to prevent unaccountable and opaque but economically powerful institutions (mainly corporations) from usurping political power, to the point where even the media - which are supposed to inform the public and keep the state transparent and accountable - have basically become the hand-maidens of power. Ordinary people feel disenfranchised by their inability to influence the outcomes that affect them, and confused by the liberal rhetoric of politicians claiming mendaciously to be protecting the interests of their constituents. Meanwhile the financial and ancillary elites are seen to be immune from legal sanction for their crimes, and impervious to the suffering that their "freedom" has imposed on the rest.

Any substantive and meaningful democracy needs to have a strong element of populism, rather than reliance on formally democratic institutions dominated by elites. But the populism needs to be realised through institutions that create and nurture the four conditions outlined above - participation, accountability, responsiveness and transparency - along with the attendant conditions of education, and forums for public debate. Furthermore, the state needs to be seen as a servant and agent of all the citizens, rather than merely as the executive committee of the most powerful sections.

In Turkey, populism seems an unattractive option to the educated elite, who look to the west for its models in politics and economics and culture. Unfortunately for the Turkish elite, the west is largely failing to provide a viable model of democracy precisely at this time. Look at the mess the EU is now - especially after the economic ruin of austerity in PIIGS, and with a foreign policy supporting outright Nazis to come to power in Ukraine, and the Al Qaeda in Syria and Libya and elsewhere in Africa. The US government is the emperor whose nakedness is becoming apparent even as it becomes more brazen in its hypocrisy and its betrayals of the ideals it claims to espouse.

In India, the traditional political parties make grand populist gestures, but there are few attempts to build institutions that support a meaningful and constructive populism. The Aam Aadmi Party was an attempt to create a political movement based on a populist platform, but it has already floundered in the one state where it managed to capture pose. In the absence of an institutional infrastructure supporting the four elements I described earlier - participation, accountability, responsiveness and transparency - the expectations the AAP engendered had no prospect of fulfilment.

In the US, the Occupy movement was an attempt at building up a movement that could have laid the foundations of a principled populism. But the countervailing forces of the state were too strong, and the people who could have supported the movement were perhaps not adequately prepared ideologically or strategically.

Everywhere, the situation seems quite bleak, if not downright dangerous. The task for those who believe in democratic ideals and justice is to understand the nature of political power, and to work to build institutions that enable its exercise in the service of the all the people, rather than a narrow elite, or even only a majority. But unless the exercise of power is constrained by the four principles outlined above, it would be difficult to defend democracy against the growing countervailing onslaught of authoritarianism.

END OF A HIATUS

After a nearly three year silence - a hiatus during which I have moved to another job, and the world has moved even closer to war - I have decided to continue to write.

For the last few years till 2011, this blog remained focused on Dr. Binayak Sen. From my conversations with him, I sense a weariness with publicity, and a desire to be left alone. He still remains on bail, and still appears publicly, but with diminishing frequency. But his appeal against his sentence remains pending. Out of respect for his desire for privacy, I shall not be writing about him any more for the foreseeable future,

I shall, however, be writing about politics and education and other things that continue to fascinate me. Postings here may also appear in two other blogs that I have opened.

A TEACHER'S HOPE

As a teacher and a human being, I struggle to be hopeful about the future. But I am close to giving up. I am beginning to think this insistence that teachers need to be hopeful is also a red herring. Teachers need to be truthful above all, but I find it difficult to be hopeful and truthful at the same time. 

And here’s what I have noticed about myself: I have lost the capacity to be surprised by anything in politics any more. Each change appears to be for the worse, in absolutely predictable or explicable ways. What does surprise me is the occasional good news: the growing sense that there is a crisis (accompanied by the bad news that no one has any faith in any solutions any more). Ordinary people – as I discovered on a trip home to an India still recovering from the terrorist attacks in Mumbai – are still surprisingly capable of responding with compassion and empathy, although a disconcertingly large proportion of them still continue to wish for death and destruction on Pakistan, Muslims, Christians, tribals, dalits...and anyone who dissents from their dominant self-image of a resurgent, powerful India. 

Post-communism and post-modernism have left us unable to deal with a post-capitalist wreckage and construct something worthwhile from it, except in small groups. The World Social Forum has lost its way, if it was ever on the way to anything at all. It’s passé to say that there is no left left any more. But do right and left matter any more? Liberal democracy, feeling itself threatened by a terror that it has itself helped create, has quite simply now become the new fascism..."O Liberty! What crimes are committed in thy name!" cried Madame Roland as she passed a statue of liberty on the way to the guillotine during the Jacobin terror. That's an exclamation that has rung like a death knell around the world since the end of the 20th century. 

We are facing a catastrophe as a species, and the most urgent task for us humans is to find a way to survive. I am not quite sure whether we would be good for the earth if we do, but that’s another argument. I am trying to move towards constructing an inventory of ideas that can help us as a species to survive the coming catastrophe. The new test for ideas or ways of living could be: does this help our survival as a species or does it doom us to collapse? For some ideas, the choice seems clear. But for others, how can we be certain in advance? The Green Revolution was once touted as an idea that would prevent hunger for all who suffered from it; now some suspect it may have made hunger worse for some while assuaging it in others. Education - in the sense of schooling - is beginning to look like another idea whose time has gone, except for those, fewer in number every year, for whom it remains a passport to upward social mobility. 

I think the only sensible thing left to do is to prepare – culturally, cognitively, emotionally, materially – for the great cull of the human species that the world is likely to see in the 21st century and the next. Gather together traces of lost knowledge and ways of being and doing that may help us weather the oncoming tragedy, devise creative ways of surviving when we are hit by catastrophe, create repositories of wisdom from whatever we still have access to, pass them on to our children. Education (not schooling) now takes on a more urgent purpose than ever before: the survival of the human species, and the preservation of the impulses that helped us survive and flourish. The question is whether these impulses can be separated neatly from those that propel us towards self-destruction. 

Teaching needs to be de-professionalized, so that every one can be a teacher and learner at the same time. The usual modes of education, which served us well to teach us silence in the face of suffering and obedience to the needs of power, need to be firmly abandoned. Schools as we know them now will either die off into irrelevance or be radically re-structured. But don’t expect our leaders or our existing institutions to lead us in this, because they are part of the problem. 

BINAYAK SEN AND THE RIGHT TO INFORMATION

"How do you fight a rogue state?" asks Ilina, Binayak's wife. 

On a visit with her mother to Binayak in jail, Ilina discovered that the Chhattisgarh government has filed an appeal before the High Court at Bilaspur to re-instate the charges of which he was acquitted by the sessions court. Furthermore, they merely gave Binayak a copy of the appeal, and didn't even bother to inform his lawyers. 

Clearly, this appeal is designed to hedge against the "risk" that a Supreme Court bench may allow bail to Binayak. So even if Binayak is released on bail, the reversal of his acquittal on the charge of waging war against the state could ensure that he goes right back in as soon as he is released. Today, this has just hit the news media, despite the fact that it was already made public on Twitter a week ago. 

Every time you think some new low has been reached in the annals of the Chattisgarh judiciary, they surprise you with yet another legal legerdemain. Amazing, isn't it, that the brains of an entire bureaucratic apparatus are kept pre-occupied with inventing new forms of legal torture...because this is basically what it is. And yet must we keep faith in the Indian judicial system? As much as we must have faith in the compassion and mercy of our torturers. Or have faith that one part of the system still functions with a common sense understanding of justice. 

Here's her letter that appeared in The Statesman, Kolkata. 

A meeting with Binayak 

SIR, ~ I met Binayak this morning, along with my mother. It was great that both the old ladies, my mother-in-law and mother, made the great trek to come this distance and to stand by us in solidarity. Binayak is in good health and reasonable spirits, but there are some developments that I think I should let you know as I rush to catch my train to go back to Wardha.

Following our Special Leave Petition in the Supreme Court, the state of Chhattisgarh has filed a criminal appeal on 28 February in the Chhattisgarh High Court, submitting that the acquittal of Binayak and others under certain sections, in the court of the sessions judge, should be reversed and that these charges should be maintained. This relates to waging war on the State etc. The specific sections are: 121A IPC, 10(A) UAPA.1967, in alternative 10(A)/120B IPC, 21 UAPA 1967, 38(2) UAPA 1967, 20 UAPA 1967.
I came to know about this because a copy has been advanced to Binayak. Obviously we are under obligation to inform them about our legal moves, but the state can get by with giving a copy to a person in prison who has no means of communicating anything to anybody. 

How do you fight a rogue state ? 

Yours, etc., Ilina Sen, Raipur, 14 March.

As this episode illustrates, this entire case, like so much else in the way we govern ourselves, is beset with the problems of asymmetry of information (the state knows more about you than you yourself - specifically, what your rights and obligations are), lack of information (can the state appeal against an acquittal of charges in a judgment that has otherwise gone in its favour?), and questions about the reliability of information (how can the justice system be trusted when the state can simply cook up evidence against an accused, who can be convicted even when the evidence is shown to be false?)

[Now I can already hear the nationalist jackals on the internet howling: Binayak should have known better than to tangle with the state! Now he must pay for it! 

So Binayak was supposed to have been aware that publishing a report critical of the state's policy towards tribals, and exposing the criminality of campaigns like the Salwa Judum, would earn him a life sentence for waging war against the state, even when the judge intially ruled that he was innocent of such a charge. You have to admire the touching faith of these nationalists in the right to free speech that the world's largest democracy enjoys, but also their breathtaking cynicism!]

As Ilina's statement - reproduced entirely below - to the RTI Convention in Shillong makes clear, Binayak's case is a vivid demonstration of the fact that even a Right To Information (RTI) law cannot succeed in shining the light of accountability, responsiveness and transparency on its governance to prevent the state's recourse to criminality in the pursuance of its aims. Who will be held liable for violation of judicial standards, for the waste of state resources and time in erecting a false case, for the suffering imposed on Binayak and his family? Many of these costs are unquantifiable, let alone calculable. But multiply Binayak's case several thousand fold, and you begin to get an idea (but not a measure, except in a metaphoric sense) of the enormity of the lack of reliable information in our benighted country, where thousands of undertrials are kept waiting for justice in our jails, often not knowing what they have been accused of. This must surely be one of the most painful injustices at the heart of our justice system. But what can a RTI law do to prevent such injustice, when so much else in our system allows such systemic criminality to continue? 

Ilina Sen’s Statement for RTI Convention Shillong, March 10-12. 

As I fight the long and painful legal battle  to extricate Binayak from the  clutches of the  penal administration, I realize that this battle is as much mine as  that of any Indian  citizen. Today, at many levels and in many fora including this one, the people of India are struggling  for  the establishment  of  accountability  and transparency  in our governance  structures as befitting our status as the world’s largest democracy. However, it is a sad reflection on our system  that once a false case is registered  in the name of security, it is almost impossible to  turn the clock back , even if facts  stare us in the face that indicate  that the case had no basis. To this ,  if we add  dimensions of face saving, prestige, and drubbing the nose into the ground of uncomfortable critics, we have Chhattisgarh  and Binayak Sen.

Binayak Sen has been convicted of sedition  and of violating sections of the UAPA and the Chhattisgarh Special Public Security Act and sentenced along with two others to  rigorous life imprisonment. His jail ticket notes his  provisional date of release as 2028, The conviction has followed an unfair prosecution and prejudiced judgment  based on confessional statement recorded , according to the judge, during   ‘preliminary investigation’ before the first accused in the case was taken into police custody, thereby defeating the  provision of inadmissibility of custodial confessions. In the absence of any  visible crime, this first arrest  and the so called ‘preliminary investigation’ become the ‘incident’ around which the case is woven. The charges framed are  equally vague  regarding nature , time and place of the ‘crime’. Extensive and expensive police investigations (sadly beyond the orbit of the RTI Act!) into Binayak’s (and mine) homes, places of work and associates failed to provide   any evidence  other than social service in remote rural areas , and obviously was not brought  on record.   The  case against Binayak hinged upon his  33 meetings with jailed  Maoist leader Narayan Sanyal, his supposed couriering of Sanyal’s letters and their passing on to Pijush Guha, through which letters, the death and destruction  being  carried out by the Maoists was supposedly  given effect.

Since the prosecution failed to produce even a single jail official or any other eye witness testifying to any letter or message, oral or written, being passed by Narayan Sanyal to Binayak Sen in their jail meetings, the verdict makes much fuss about certain entries in jail registers referring to Sen being Sanyal’s relative, ignoring the defence contention that these entries were filled in by the jail officials, and not by either the visited or visitor, as apparent from the face of the record. On the contrary, all the applications Binayak Sen submitted to the jail officials, requesting a meeting with Sanyal, were written on the letterhead of his organization - PUCL (a Civil Liberties and Democratic Rights organization founded by leading Sarvodaya leader Jayprakash Narayan). These visits were duly permitted by the jail officials and transpired in their full view and hearing. Binayak’s own statement to the court gives a perfectly rational explanation for these visits and the way in which his intervention was essential in facilitating the hand surgery of Narayan Sanyal at the Raipur Medical College,, but this was not taken into account.

Binayak  is also supposed to have had prior acquaintance with Sanyal and facilitated the hiring of a house by him. This is based on the testimony of a landlord who, while  testifying to this fact also alleges that Sanayal was arrested from his house, which is contrary to the facts brought on record  during this trial.  Sanyal’s arrest was in Andhra Pradseh according  to the testimony of the arresting officer, and how a witness  who perjures himself in one part of his testimony becomes a reliable witness for the other part, beats imagination.

Hearsay evidence from police officers about Binayak’s  presence in naxal meetings , his supposed association with ‘hard core naxals’ who are not even named in any case anywhere in the country , supposed seditious literature pertaining to resistance of US imperialism and atrocities committed during the salwa judum  seized from our  house during police search, correspondence addressed to the ISI  (read Walter Fernandes, Director, Indian Social institute, New Delhi) and the evidence of correspondence with  people bearing Muslim names   constitutes  the rest of the evidence.

While weaving a narrative of sedition against Binayak Sen and other accused in the case, the Sessions court verdict violates a well laid judicial principle of the Supreme Court in matters of sedition. In Kedarnath Singh Vs State of Bihar the Supreme Court has held that the provision of sedition in the Indian Penal Code must be interpreted in a manner consistent with the fundamental freedom of speech and expression guaranteed by the Indian Constitution. In this regard the Supreme Court held that the offence of sedition, which is defined as spreading disaffection against the state, should be considered as having been committed only if the said disaffection is a direct incitement to violence or will lead to serious public disorder. No speech or deed milder than this should be considered seditious. The Sessions court verdict in the case against Binayak Sen and others fails to establish that the words or deeds of the accused were a direct incitement to violence or would lead to serious public disorder. This would be the case even if it was established beyond doubt that Binayak Sen had passed on Narayan Sanyal’s letters to Pijush Guha, or Pijush Guha was likely to pass on these letters to other members of the CPI (Maoist), or that Narayan Sanyal was a politburo member of the CPI (Maoist).   

Both the trial court  as well as the appellate court  (while passing and upholding the maximum  sentence for sedition) have  gone on record that the situation of violence and uncontrolled Maoist bloodshed calls for non-application of any grounds for leniency in sentence.  This is without any clear establishment that Binayak Sen had any involvement in such bloodshed, in fact even the court does not allege this.  How  criminal justice can be based on the doctrine of lateral responsibility is  mind boggling. Clearly the verdict and the sentence are both intended to make an example of a civil society activism, and to send a message to all of us who are asking any kind of questions. The issues in this case  thus go beyond the case itself and the fight for justice for Binayak becomes the struggle of all of us for the Rule of Law  in our polity.

RESPONSE TO THE LESS ABUSIVE RIGHT-WING CHATTER ON BINAYAK SEN

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)

REFLECTIONS ON DR. BINAYAK SEN'S BIRTHDAY

Today, the fourth of January, 2011, is Binayak Sen's sixty-first birthday. He is spending it in solitary confinement in a small cell in Raipur Jail. He is taken out twice a day, each time for a couple of hours. Prolonged solitary confinement is known to break the strongest minds. Binayak spent a month alone during his last incarceration before the Supreme Court granted him bail. He later told me that he felt his mind turning into mush.

This is the punishment that a vengeful and vindictive probationary judge has thought fit to bestow on one who has spent the better part of his adult life in service to the poorest and weakest in our society - dalits and tribal villagers and mine workers - in what is now the state of Chhattisgarh.  Under any reasonable system of justice, his record should have served to mitigate any punishment if indeed he was guilty. However, this is Chhattisgarh, where  even the Supreme Court’s standards have little force in the judiciary, as the learned judge in Binayak’s case demonstrated. According to a Supreme Court ruling (Kedarnath vs State of Bihar), the charge of sedition, for which he has been sentenced to imprisonment for the rest of his life, requires clear evidence of incitement to violence and disturbance of public order. (See this detailed legal analysis of the case and the evidence presented before the court, by Madabhushi Sridhar, a Professor at the National Academy of Legal Studies and Research University of Law, Hyderabad.) But so keen was the judge to uphold the sanctity of the law, that he chose a much lower standard for the sentencing by simply accepting at face value the fabrications of the police witnesses in the charge sheet, even when they were contradicted by their own depostions in court. After all, why respect a quaint Supreme Court standard when there is a much more forceful message to convey to those who dare to criticize the state's policy towards tribals, in what amounts to a war on the forest people of Chhattisgarh? Why bother with that pesky Fifth Schedule in the Constitution and all those inconvenient Directive Principles, when the very “development” of the state is at stake?

The Binayak Sen that sits condemned in jail, the butt of abuse by nationalist jackals with half a brain and an internet connection,  is not the tender, compassionate and learned Dada that I have known for as long as memories serve, the Ranka that our mother knows for sixty-one years, the affectionate Baba that his daughters have grown up with, or the constant life partner that our Boudi Dr. Ilina Sen has lived and suffered and triumphed  with for the last thirty seven years.  Nor is he the doctor who has empowered countless  patients to save themselves from malaria, malnutrition and other ravages. He is the creation of a paranoid state that feeds off the very terror that it creates by its policies. This paranoia has expressed itself through a prolonged,  wilful and vicious distortion of the judicial process. The tragic irony is that this is the very same process that Binayak must now trust with producing a remedy. 

The internet jackals are now feasting off our Boudi’s  anguish, howling at her desire to seek asylum abroad if she cannot get justice in India. Those who traduce Binayak by branding him a Maoist should be aware that both my younger brother, who is a European citizen,  and I who reside abroad, have repeatedly encouraged Binayak and his family to leave the country if they possibly could. Despite their world-wide network of friends and supporters, both Dada and Boudi have consistently refused to do so. They have always insisted that if justice is to be sought, it must be in India. 

We must cling tenaciously on to the same hope, knowing that we may be eventually disappointed. But we know with even greater certainty that even if the trial court’s verdict is overturned, the delivery of justice must remain dependent on a vigilant and educated citizenry, demanding the transparency and freedom from judicial caprice that is their right. This is precisely where I differ from those who warn us to shut up, since the law has spoken. They would rather have somnolent cattle for citizens, chewing  the cud of consumerism  while allowing justice to be outraged.

Ask yourselves who has been a more fervent upholder and believer in the law:  a state that repeatedy refuses to abide by its own laws and judicial standards, or an individual who has fought compassionately to maintain and extend our Constitutional protections to the weakest in our society? Who has the  more credible record in promoting peace: a state that fore decades wields the power of the gun against tribals who resort to violence as a last resort? Or a man who has constantly and publicly reminded anyone who would listen that violence solves no problems, and warned insistently that the prolongation of unremedied injustice inflames people to violence.

TWO POEMS FOR BINAYAK SEN - only in Hindi

Both poems are by Rizvi, as far as I could determine.

This one is recited by the Gandhian activist and founder of Vanavasi Chetna Ashram, Himangshu Kumar.

The second one is recited by the author himself.

 

 Diwaron se vicharon par jo ankush lag gaya hota, to Bapu dar gaya hota.
Yazidi zulm ke aage, Hussaini jeet na hoti
Krishna janm na leta, Vishnu mar gaya hota
Firangi surya na dhalta, Ye Bharat varsh na hota
Kabhi bhi satya ki khatir koi sangharsh na hota

Jahan par doctoron ki ek jhalak ka naam hai paisa
Jahan par zindagi aur maut ka sangram hai paisa
Wahin jakar Binayak ne dilon me dhadkane banti
Jagaya jeene ka jazba jalayi prem ki baati
Khilaye phool se chehre biyaban jangalon jakar

Basayi ujdi basti bhi usi ka ghar bana Bastar
Gareebon ki khushi ko dekh kar jalne lage afsar
Hua charcha to neta bhi lage aane wahan aksar
Andhere me jale deepak to bhoot bhaag jate hain
Bahane dhoond kar warna jale deepak bujhate hain

Binayak janta tha har kisi shaitan ki sazish
Police ki gundagardi aur gundaraj ki sazish
Kabhi majboor par goli kabhi sanghar ki sazish
Kabhi kursi bachane ki wahi sarkar ki sazish

Huye masoom jo ghayal to roya tha binayak bhi
Na jane kitni raton se na soya tha binayak bhi
Adalat par bharosa kar ke khole raaz jo usne
Hili kursi hua hadkamp phase usme vidhayak bhi

Lage nirdosh par POTA, aur hatyara bane CM
Hai apne desh ki ye reet abtak is tarah qayam
Usi hi shrinkhala me naam binayak ka bhi ata hai
Zulm dhaye jaate hain wo phir bhi muskurata hai

Chale jab zulm ki andhi na ghabrao na dar jao
Chalo mazloom ki khatir zara parcham to lehrao
Salakhen mom kar dalo maseeha hai salakhon me
Sikha do pyar ki boli sitam dhate ilaqon me

RABINDRANATH'S SONG FOR BINAYAK SEN

Here is my very awkward and somewhat literal translation of a song by Rabindranath Tagore that fits Binayak's situation perfectly...or so we hope! If someone can let me know the occasion for which the song was originally written, I would be grateful.

 

Say nothing to those who call you mad.
Those who throw dust at you today, thinking ill of you,
Will follow you with garlands at tomorrow's dawning

Say nothing to those who call you mad.
Those who today occupy their seats of power, puffed up in their pride,
Will descend from their thrones and bow their heads to you in love

Tomorrow morning.

 

 

 

BINAYAK SEN'S CONVICTION: THE GRAMMAR OF ANARCHY?

On December 24, 2010, Dr. Binayak Sen was convicted for sedition and various other charges at the district court in Raipur, and sentenced to life imprisonment. The 92 page judgment - of which I have just received a copy - could not possibly have done justice to the entire range of evidence brought by the prosecution, and the detailed counterarguments that were made by the defence team in the eight or so days before it was delivered.  Most of the defence arguments seem to have been ignored altogether.

Once again, we are left wondering whether our country is turning into something that its founders would - if our nationalist hagiographies are to be believed - scarcely have recognized: a kleptocratic republic in which the state and powerful institutions are the foremost violators of its laws.

When a state organizes the fabrication of evidence for someone like Binayak Sen, and the judge simply relays the opinions of the prosecution without considering the arguments and the collapse of the evidence in his own court, how is one supposed to retain any confidence in the system of justice that we have? I know we will have to use the same justice system to appeal against the sentence and seek bail for our brother. But just because a patient suffering from progressive brain cancer retains moments of lucidity, we do not conclude that all will be well with him. In fact, when we succeed in getting the patient to communicate, we might feel even more fortunate and grateful that we have beaten the odds. But even if Binayak is ultimately freed - a likely but painfully protracted prospect, I understand - it will not bolster my confidence in the system by even an iota.

First Wikileaks, then 2G, and now Binayak's sentence, have entrenched in my mind the near-conviction that the state in India, like states elsewhere, has been showing increasing signs of regressing towards the abandonment of consitutionalism. In his "Grammar of Anarchy" speech urging the abandonment of all forms of political struggle outside those prescribed in the constitution, BR Ambedkar also prefaced his remarks thus: "When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods."  We appear to be returning to such a condition, when constitutional methods for achieving economic and social objectiives are being increasingly ignored and abandoned by both private corporations and agencies of the state, each in league with the other.

Apparently the normal "business-as-usual" workings of an electoral democracy aren't enough to stop the natural tendency towards the misuse of power. Until we have a vigilant and well-infomed citizenry, and a state that sees itself as their servant rather than their master, and unless we have mechanisms of accountability, transparency, responsiveness and popular participation embedded in the organs of the state, the degeneration of the state into a vast predatory machine extracting the national wealth for the benefit of a kleptocratic elite is a virtual certainty. Surveying the contemporary scene in India, Ambedkar would probably now say that the language of governance is being spoken in the Grammar of Anarchy.

The fragile and illusory security of our daily lives that we enjoy as members of the middle class has long been lost among tribals and dalits, among rural peasants and urban workers who are constantly abused by agents of the state in various ways.  Of course the picture of social anarchy is probably not yet universal, but we seem to be getting there with disturbing rapidity, despite occasional small and tenuous gains like RTI made after long and arduous struggles. Here too, one must invoke Ambedkar in the same prescient speech:

We must make our political democracy a social democracy as well....[meaning] a way of life which recognizes liberty, equality and fraternity as the principles of life. ....We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has  laboriously built up. [Emphasis added]

If these arguments appear to be the febrile rantings of a disturbed mind, I am open to efforts to convince me I'm wrong. But until someone does,  I'm increasingly afraid of the future that we have left our children.

Meanwhile, hold them, if you have any, ever closer to your heart. The encircling and deepening gloom makes the "affirming flames" and "ironic points of light" even more necessary.

PS: See also an earlier post titled Alternatives to Naxalism.

SYNERGY OF BARBARISMS

The publicity blitz accompanying the release of Tony Blair's book has several levels of irony. 

Firstly, it is an ironic comment on the state of international politics that the heads of states of two of the major liberal democracies in the world have waged war with the ostensible purpose of bringing democratic freedoms to Iraq and Afghanistan, and have enjoyed complete immunity for the enormous destruction and mayhem that they have wreaked in both countries (to say nothing of ancillary attacks in other countries like Yemen, Pakistan and Somalia in pursuit of a vague and quixotic "war on terror"). It is even more ironic that according to the standards that their countries' laid down at Nuremberg in 1945, these heads of states would qualify to be charged and tried as war criminals. And it's more ironic still that the supposedly democratic world seems powerless to bring these criminals to account, thanks to the complicit silence of the mainstream media in educating the public about their criminality, and their stenographic repetitions of, and indeed outright support for, their mendacity, racism and violence. 

That's what enables Blair to make millions as author and speaker strutting about the globe, dispensing advice and admonition to all and sundry on the self-proclaimed righteousness of his psychopathic stance as leader of a supposed democracy. His tawdry role as Middle East "Peace" Envoy coincides precisely with the further consolidation of the occupation and destruction of the Palestinian people by a succession of psychopathic Israeli regimes spurred on by the self-appointed inheritors of the Western Enlightenment tradition. Meanwhile, all attempts to hold Blair to account for his criminality founder on traditions of politeness and propriety (or hypocrisy) in western political discourse. 

The trouble with this kind of criticism of current versions of Anglo-American "liberalism" is that it is often confused with support for the thoroughly odious Islamic extremism that it has nurtured (but not always created) in various parts of the world. To criticize the Israeli occupation of Palestine or the US/NATO invasion and occupation and destruction of Afghanistan and Iraq is - through some kind of intellectual legerdemain - too often taken as support for Osama bin Laden and Al Qaeda, the Taliban and various terrorist outfits emanating from Pakistan. Few seem to notice that this aggressive "liberalism" of neocons like Blair and Bush and their ideological soul-mates is supported ideologically and financially by the no less odious Christian and Jewish extremists - who are the Christian and Jewish mirror images of the Taliban in the US and Israel. Apparently, colonialism and racism and apartheid are somehow respectable in these "liberal" circles, including - sadly but predictably - among the Hindu right in India, as long as it appears in the guise and shape of Zionism in Israel. 

The barbarism of the neocons (in which I include all those who think it's a good idea to wage wars in other countries in the guise of a global war on terrorism, but actually to defend their interests against threats both real and imaginary) and the barbarism of extremist groups using the garb of religion to further their own egregious aims both nourish each other with the oxygen of publicity, and hog the attention of the media, distracting the public from far more urgent and important struggles to make the world a more liveable place. Thus it comes about that successive US regimes have persuaded their public that the Taliban in Afghanistan  are a serious enough threat to the US to warrant invading that country and waging a war there for nine years costing thousands of lives both Afghan and US, and billions of dollars in resources. Thanks to the media, few Americans apparently care that the effect of this war has been to entrench the Taliban more firmly in power and destroy any prospect of a peaceful life for millions of Afghans for the foreseeable future, enrich the military and other contractors and the armaments industry, all at the expense of the health, education and well-being of current and future generations of American citizens. 

Notice what is happening in Pakistan: the US is aiding and arming a pseudo-democratic (but effectively military) regime in Pakistan in the guise of enlisting its support against terrorism, while this aid is being spent by the Pakistani regime on fighting an internal civil war which is designed to create more terrorists (including the heroic predator drone strikes on civilian populations from the safety of Kansas and West Virginia). Both donor and recipient have developed incentives to continue this killing spree in the name of fighting the very terrorism whose flames are being fanned by their actions. Consider the synergy between the military-industrial-congressional-thinktank-university-media complex in the US/NATO countries and the military-jihadi complex in Pakistan, and follow the money. Ask yourself who is gaining by all this. Notice similar synergies developing elsewhere, e.g., in the alleged Peace Talks between a Palestinian quisling and his US and Israeli masters while ordinary Palestinians continue to lose their homes to settlements, and keep getting killed for reasons which only rarely pose a threat to Israeli citizens. The war on terror has expanded, not shrunk, because it has evolved into a political project to keep people in a permanent state of insecurity in which they would feel  compelled to support policies to protect them against imagined terrors. 

I would predict that the politics of the 21st century will be characterized by the Synergy of Barbarisms rather than by the Clash of Civilizations. But the synergy of barbarisms cannot be broken by a counter-alliance of another set of barbarisms, but by an alliance of civilizations. Between the extremes of ideologies there is the silent majority of mostly apathetic, but mostly decent people who care principally about their own futures and that of their children and their own communities. Yet they feel powerless and insecure in the face of vast political and economic issues when these become their own private problems. The violent faces of Islam, Christianity, Judaism, Hinduism and Buddhism do not represent the vast majority of such people, many of whom are the adherents of these religious traditions. Nor do their religious texts speak unambiguously about the need for compassion, kindness and mercy in dealing with suffering engendered by the different problems that beset our world today. But they provide a narrative, language and symbolism for what are essentially worldly (secular) conflicts born out of the confusion and insecurity that economic, historical and political forces beyond their control have created. These anxieties are felt in different forms and for different reasons both among powerful elites as well as among powerless and marginalized masses. These threats and fears then present opportunities for neocons to exploit  "Pearl Harbour" moments of insecurity to disseminate perceptions of threats to so-called security or "national interests" that will help them initiate invasions and killing sprees in the name of peace, security, democracy and development. In reality, all that improves is the wealth of those invested in this permanently elusive, but ultimately destructive, search for security. 

Yet there is enough in various religious traditions to propel a search for peace and justice and a better world that secular ideologies, with their absence of any sense of the sacred, have so far failed to provide. There is a need for ordinary people (civil society) to get together across national boundaries to commence dialogues aimed at peace. Let's talk, eat, make music, worship together; visit each other's homes, help each other out in times of distress. Let's not wait for governments to do these things, because the indications are that the only things they are interested in is arming each other against threats that they themselves manufacture, or are manufactured for them, to keep us frightened and pliant. Therefore it is absolutely imperative that foreign policy be taken away from the stranglehold of states - most of which often behave as if they have an incentive to continue the killing and destruction. Let's re-read all significant texts, re-assess all sources of wisdom. Let's use them to build traditions of dissent that will use the oldest civilizational narratives known to humanity to stop the killing and destruction and live in peace with justice. Yes, let's use religion as a political resource, but to renew, rebuild and heal our civilizational inheritance, not destroy ourselves with our barbarism.