Letting the law take its course : Gautam Sen

Goutam Sen writes in his blog Gyanoprapha

Would you say that the law is respected in a country where

  • the police routinely abuse the powers that they have been given, in flagrant violation of the law?

  • the Supreme Court’s rulings regarding the treatment of undertrials are routinely ignored by the police and the executive?

  • torture is so common, despite extensive bans against it, that people meet in public to condemn it, and the organizers of the meeting are implicated in false cases by the police after public protests against torture attended by former judges, civil servants and former and serving police officials?

  • human rights investigators are routinely threatened and harassed ?

  • the police ignore an order given by a judge at a trial allowing the accused to meet a member of his family, and physically try to prevent the meeting?

  • the police threaten the family member of the accused while she attempts to meet with the accused during a court recess pursuant to the judge’s order, within the court premises?

Each of these shows the utter contempt in which the law is held by those charged with upholding it. In such a country, it is arguable that the chief breaker of laws in the country is the police itself. The independence of the judiciary from the executive appears to have assumed a new meaning here – if the judiciary commands that the executive do or refrain from doing something, the executive frequently either ignores the injunction, or does precisely the opposite.

The country I am referring to is of course precisely our mahaan Bhaarat. The specific incident of the intimidating conduct of police officials occurred at the trial of my brother Dr. Binayak Sen, when the police tried to physically obstruct a meeting between him and his wife Dr. Ilina Sen despite a specific order from the judge permitting such a meeting. One of the officials present actually threatened to entrap her too in a Naxalite case (”inko bhi phansa do naxal case mein”), suggesting that there was at least one other person (did he mean Binayak? Piyush Guha? Narayan Sanyal? Ajay T G? all four?) who was entrapped to begin with. The same official was heard to have remarked, while frisking the European Union observers to Binayak’s trial, that these observers are the external supporters of terrorism. The police have been careful about their behaviour after Dr. Ilina Sen lodged a written complaint with the state DIG of Police Vishwaranjan and the local Superintendent of Police. No doubt the EU observers will also include those revealing remarks in their reports. The overall impression of a police force that is out of control will be further enhanced. In the case of Binayak’s colleague Ajay T G, also held in Durg jail under the CSPSA, he has been refused access to a magistrate, and handcuffed despite specific Supreme Court orders that ban such treatment. The idea that those held under the CSPSA are being treated under the normal processes of law is blatantly refuted every day. There ought to be a special name for those “laws” which in effect sanction utter contempt for the law and the Constitution, because to call such enactments “laws” simply adds to the terminological and conceptual murkiness that prevents ordinary people from seeing these things clearly.

The second session of Dr. Binayak Sen’s trial was conducted again in Raipur between July 1-4. The next session will be held on July 29-31and August 4-8. The second session too saw another witness contradict himself, claiming that he was acquainted with Binayak, and then admitting that he was only aware of him from news reports on TV.

So how far have we reached? I am not a legal expert, and do not claim to possess detailed knowledge of how our arcane and complex legal system works. But it strikes me that if Dr. Binayak Sen was really guilty as charged, would it have taken the state more than a year to accumulate evidence of his guilt? The actual evidence is either being demolished in court, or has already been shown in the public media to have been questionable. Despite the insistence of the DIG of Police Vishwaranjan that the state has enough evidence to lock him away for a very long time, such evidence has not emerged so far. One might be forgiven for wondering whether such evidence actually exists, or for imagining, on the basis of the prosecution’s conduct at the trial so far, and on one’s general impression of the way the police conduct themselves in shining India, that they are busy concocting such evidence. Meanwhile the Supreme Court’s refusal of bail without an adequate consideration of the arguments in his defence has effectively acted as a verdict of guilt without the benefit of a trial.

We are supposed to believe that justice is being done. Despite the fact that others who were arrested in January 2008 under the CSPSA have been released on bail. Despite the fact that those who have been most directly responsible for the deaths of thousands in communal riots are still at large in our political landscape, one as Prime Minister in waiting, another as a Chief Minister of a state that is supposed to be a model of good governance. Despite the fact that Madhukar Sarpotdar, a former low level Shiv Sena politician, having been finally sentenced to a derisory year in prison for crimes of inflaming communal violence in the 1992 Mumbai riots, is released on bail, and receives a sentence suspended till August 16 to enable him to file an appeal. But if you are a doctor who has spent thirty years of your life working among people whom the state treats as if they don’t exist as citizens of this country, and if in the course of your work, you feel compelled to highlight state abuses of human rights, then you become a deshdrohi, and get treated like a terrorist, despite international and even state recognition of your work.

Let’s pull the various threads of this posting together: when a state that misuses its power of policing with complete impunity, arrests activists for indefinite lengths of time on the basis of lies, under laws like the CSPSA that criminalizes thought crimes and allow for very few checks and balances, what recourse or protection does a citizen have against the arbitrariness of such a state? To those who pontificate about the National Interest without ever bothering to clarify whose interest it actually represents, this question is meaningless, because they will not admit the premises of the question itself. But politically, we have come to a very paradoxical situation: those charged with upholding law and order are themselves violating the law in the name of upholding order. And they are doing this by means of “laws” which are specifically designed to enable such abuse. The injunction “Let the law takes its course” now means whatever a powerful enough state bureaucrat wants it to mean, thus rendering it devoid of any substantive meaning.

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