Weak states make bad laws and kill the messenger

by Maja Daruwala

And the award goes to….. oops he is not here tonight ladies and gentlemen because he is in jail in India held under an infamously bad law. Human rights activist and public health specialist Dr Binayak Sen was not there in Washington on May 29 to collect his 2008 Jonathan Mann Award for Global Health and Human Rights.

He could not shake hands with the international jury of public health professionals who chose him for this singular honour. He could not hear the fine citation spoken in appreciation of his exemplary services to the poor and tribal communities and for his unwavering commitment to civil liberties and human rights.

Twenty-two Nobel Prize winning scientists and economists from across the globe had appealed to the Indian government that Dr Sen be allowed to receive the award in person in Washington DC. But Dr Sen remained in Raipur Jail, Chattisgarh. He has been there for over a year.

Dr Sen is President of the Chattisgarh chapter of the People’s Union for Civil Liberties (PUCL) an old and extremely well respected organisation of champions of the constitutional way. He has been speaking out against police excesses in Naxal infested Chattisgarh and the Salwa Judum – a violent and indisciplined government sponsored counter-Naxal effort which has been thoroughly disapproved of in many quarters – most recently even by the Supreme Court.

Dr Sen was arrested for being a member of an unlawful association and a terrorist gang or organisation, holding the proceeds of a terrorist act and giving support to a terrorist organisation. For good measure, Sen has also been charged with ‘sedition’ and ‘conspiracy’ and waging war against the state.

A month after his arrest as if to bolt the door thrice, the police added charges claiming he acted as a courier for the Naxalites. The Chhattisgarh State Public Security Act, (CSPSA) 2005 and the Unlawful Activities Prevention Act, 1967 under which Dr Sen is being held in essence mimic the disgraced and repealed POTA and as Noam Chomsky points out, “are extremely vague and subjective in what is deemed unlawful and give arbitrary powers to the State to silence all manners of dissent.”

These Acts – always allowed to remain on the books despite the demonstrable proof that their wide discretions are constantly misused – give officials wide latitude to detain people merely on the basis of their suspicions and nothing more. In law, suspicions always have to be reasonably grounded.

But given our laggard court system, challenges about whether it was reasonable to detain someone in the first place are guaranteed to take a long long time. In the meantime the nuisance person remains inside. Whether in the end the reasons are judged sound or untenable a citizen ends up locked up. The wider purpose of making an example of an inconvenient voice is served and a chill is cast on making any effective outcry against state policy.

After over a year, Sen’s trial is now in progress. Already three witnesses have turned hostile. At the same time another PUCL activist Ajay TG has also been arrested on similar charges. He too challenged authority by continuing to be very vocal about unlawful killings of adivasis, sexual assault on their women, abductions and forced displacement even after Dr Sen’s arrest.

The news out of Chattisgarh is bad. The Ministry of External Affairs should be worried. Its international image as an upholder of the rule of law is taking a pounding. The Ministry of Home Affairs should also be worried because across state lines, the counter-violence of Salwa Judum is fuelling the intensification of Naxal violence and that of other anti-state actors as they see justification for their own illegality mirrored in the illegalities of the Salwa Judum.

The news from Chattisgarh is indeed bad. But we must not kill the messenger because he says it to us. Our rulers must not loathe and fear human rights defenders. Human rights activists from the Mahatma to Dr Sen have long been the backbone of India’s struggle for rights, development and democracy. But sadly the State does not see them as allies in this great cause but, fearing criticism, treats them as enemies.

By their very nature, human rights defenders are defenders of the constitution dedicated to achieving its aims and ends. Laws like the CSPSA are not to be used against them. They are enacted not because Naxalites are too strong but because the state is too weak, with its law enforcement capacity dwindling and moral authority in tatters. But, it is true that non-violent critics are easier to catch and tame than violent opponents.

The writer is Director, Commonwealth Human Rights Initiative