« UPDATES FROM THE BERKELEY CONFERENCE (SEPTEMBER 26-27, 2008) | Main | A PLEA FOR PATIENCE »

October 03, 2008

Comments

Hem Sagar Panda

CONFUSION ABOUT INDIAN CONSTITUTIONAL AND LEGAL POSITIONS REGARDING CSPSA

I have been reading various write-ups and comments in web-sites on what DGP Chhattisgarh spoke in Berkeley and its contradiction by the DGP in one response. I also understand that about 50-60 students of Indian origin opposed his visit, shouted slogans, showed placards and posted posters against him. Even though the DGP has been the most popular and accessible police officer in Chhattisgarh not only in this present tenure as DGP but also because of his earlier postings as Superintendents of Police in Raigarh and Bastar, I can not object to slogan shouting etc. which was organized at Berkeley because we in India also have democratic right to oppose, raise slogans etc. We also raise slogans even though sometimes we are ignorant of full facts.
However as a lawyer I must explain that there seems to be misconceptions about CSPSA which emanates from wrong understanding of India Constitution. While the 'Directive Principles of State Policy' and 'Fundamental Rights' enshrined in Indian Constitution are based on basic principles of human rights a balance has been created between protection of individual right and loss of protection for society at large in Indian Constitution. For this, the principle of "reasonable restrictions" has been introduced. There are many Supreme Court decisions to determine the reasonableness of imposed restrictions of already existing laws or a new law, like CSPSA. A law of internment (which restricts fundamental rights) can only be void if it does not offer a right of representation against internment or an opportunity to be heard. It would be similarly held void if it denies the higher courts the jurisdiction to go into the constitutional validity and legality of the law. The CSPSA does not deprive the individual the right to represent against internment, seek bail in the court or challenge the constitutional validity of this law in higher courts. Dr. Binayak Sen is a known social worker but his bail application was finally rejected by the Supreme Court of India.
Secondly, Indian Constitution does not allow a police officer to be also a judge. The police officer charge sheets in the court a case, if there is prima facie evidence. Prima-facie evidence only means collection of evidences on which charges can be framed in a court of law. It is only after evidence is produced in the court; cross examination of witnesses done and examination of documentary evidence that the trial court comes to a judgment. Even then both the state and defendants can appeal to higher courts if they are not satisfied.
There is also some confusion regarding police officer withdrawing a case. In criminal cases the police may decide not to prefer charge-sheeting a case if it has not been able to collect enough evidence and can send 'Final Reports' but it is for the court to accept them and it is free to return the cases to police for further investigation. Similarly, once the charges have been framed and the trial has commenced the state may decide to withdraw the charges but court may or may not permit withdrawal of charges. So the final decision rests with the courts in such cases and not with the government or the police. This is the settled legal position in India.
There was another confusion in at least one of the letters/write-ups which talked of "legislative intrusion in the constitution". Well, if any aspect of the Indian Constitution is to be altered (and it can be altered), or if a new law is to be passed, it can only be done through legislative processes. Such things can not be termed "legislative intrusions". The settled law of India is that such alterations should not affect the basic frame work of the constitution.
I think that much of the opposition to DGP Chhattisgarh emanated from ignorance of Indian legal position, which is not much different from laws, in the most of the democratic nations.

H.S.Panda
Advocate, Raigarh, Chhattisgarh
India - 492001

yossarin 2

You are right Mr.Vishwa Ranjan. Anyone that protests wrongdoings is a maoist...so why not arrest them all? You are a writer and a poet in private and a top cop in public...Dr. Jekyll and Mr. Who? We all know that you are a man with a conscience in private yet you commit or help commit injustice in public. The question is why? In your funciton as DGP, you should be instrumental in bringing about social change not block them to favour your political masters for short term gains. You might end up spending a lot of time trying to rub off that spot of blood in your old age. It never will leave you, never. That is what we call natural justice. YOU know Dr. Sen is innocent, yet he is in jail. I am CERTAIN that it troubles you. So, what is the solution? You have it in your hands to release him. Go ahead and have the courage to act according to your conscience. Dr. Sen did.

Fil Munas

I was indeed "bemused and silently chuckle(d)" at Mr. Vishwa Ranjan's comment, as he himself so elegantly phrased it in a different context.

Mr. Vishwa Ranjan in his remarkably engaging style makes a startling and disingenuous comparison. The behavior of the Indian Maoists, whatever it may be, is not germane to this matter and has never been the issue raised by Dr. Binayak Sen's numerous supporters and admirers around the world. Dr. Sen, who should be a role model for India, has instead been arbitrarily incarcerated, torn from his family and friends, and deprived of his freedom for inscrutable reasons manufactured by social and political forces. Empathy for the least amongst us is not grounds for imprisonment. Neither are alleged "thought crimes."

Mr. Vishwa Ranjan appears to be a sensitive and thoughtful person. I genuinely hope he will not conflate the Maoist insurgency with Dr. Binayak Sen.

Vishwaranjan

LIES DO NOT HELP ANYONE
Lies have been one of the strongest weapons in the arsenal of Maoists - only next to weapons and explosives. Weapons and explosives are used to terrorize those who oppose them. Lies are meant to partly confuse and to partly win over people to their sides.
When I decided to go to University of California, Berkeley to present my point of view a psy-war was unleashed in Berkeley through SMSs and cyber-space to oppose my visit. Most people invited in the conference, the Maoists and their supporters thought, would castigate the government of India and Chhattisgarh for violating human rights etc. They did not want the DGP of Chhattisgarh to introduce a discordant note. The Maoists and their supporters decided to use the case of Dr. Binayak Sen as a mask to cover their real intention.
They send "questions for the DGP" on web-sites asking some inane, puerile and obscured questions about the case of Dr. Binayak Sen and CSPSA. As the case against Dr. Binayak Sen is sub-judice I would not comment on it but there are constitutional and legal ways to fight any ACT or LAW and that is that if it is held ultra vires of the constitution it goes automatically. But Maoists and their supporters who have no faith in the Indian Democratic System or the judiciary in India believe in pressure tactics. Dr. Binayak Sen's case must be fought more on the streets through dharnas, demonstrations and only incidentally through the courts.
So the demonstration at Berkeley was not surprising to me. What must have surprised them was that I remained unruffled. What must have further surprised them that a many amongst the listeners started to protest against their unruly slogan shouting. What must have equally flustered them was the fact I was prepared to talk to them and answer questions after the seminar and question and answers session.
But the psy-war had to be launched. Lies had to be invented. Facts had to be misconstrued. So the post card on which I wrote that I am the wrong person and if they want they should send it directly to the government has been circulated through the cyber-space as my having signed a post card demanding release of Dr. Binayak Sen. My explanation that we preferred postponing charge-sheeting of Ajai TG because his wife gave certain information which we wanted to verify was twisted to mean that arrest of Ajai TG was "technical mistake". More lies would fill the cyber-space I know. But these don't ruffle me. Lies have never ruffled me. And I have the strength to accept the truth. At Berkeley there were many other who also know the truth of what I spoke.
But there is a catch. The muck the Maoist supporters throw into the cyber-space is read mostly by those who believe in their cause. Others who accidentally see their sites only feel bemused and silently chuckle at them.
- VISHWA RANJAN

The comments to this entry are closed.