LAW RESOURCE INDIA

Get tough with ‘killers on wheels’: Supreme Court

Posted in CRIMINAL JUSTICE SYSTEM, EVIDENCE, HUMAN RIGHTS, MOTOR VEHICLE ACT, RIGHT TO LIFE, RIGHTS, VICTIMS by NNLRJ INDIA on January 13, 2012

Supreme Court of India

Expresses concern at rising number of deaths in road accidents

Expressing serious concern over the rising number of deaths in road accidents, the Supreme Court on Thursday called for revisiting the sentencing policy to ensure harsh punishment for the ‘killers on wheels’.

Upholding the three-year jail sentence awarded by the Bombay High Court to Alister Anthony Pareira for causing the death of seven persons when his car ran into the pavement in Mumbai, a Bench of Justices R.M. Lodha and K.S. Khehar said the punishment must be in proportion to the crime.

Writing the judgment, Justice Lodha said, “The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”

Drunken driving

The Bench said: “The World Health Organisation, in the Global Status Report on Road Safety, has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau [NCRB], the total number of deaths due to road accidents in India every year is now over 1,35,000. The NCRB report also states drunken driving as a major factor for road accidents.”

It said the country had the dubious distinction of registering the highest number of deaths in road accidents. “It is high time lawmakers revisit the sentencing policy reflected in Section 304 A IPC [death due to negligence]. It is true that the appellant has paid compensation of Rs. 8,50,000 but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, the High Court had been quite considerate and lenient in awarding to the appellant a sentence of three years for an offence under Section 304 Part II IPC [death caused by driving] where seven persons were killed.”

According to the Bench, “the facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, the sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement.”

“Travesty of justice”

On the plea for letting the appellant off with the sentence already undergone i.e. two months in a case like this, the Bench said “in our view, it would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime.”

It said: “We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence. The appeals are, accordingly, dismissed. The appellant’s bail bonds are cancelled. He shall forthwith surrender for undergoing the remaining sentence as awarded by the High Court in the judgment dated September 6, 2007.”

“When an Institution No Longer matters, we no longer matter.”

Supreme Court of India

Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011

We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.

The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.

 Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.

Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the

Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.

 I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.

The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.

CONCLUSION :

B. R. Ambedkar delivering a speech to a rally ...

Image via Wikipedia

India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”

Will politicians understand hunger by experimenting with fast?

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Anna Hazare’s success reminded the political class about the magnetic effect a fast has on the common man, who suffers hunger on a daily basis and is hungry for good governance that could ensure some sort of social and economic equality in his poverty stricken and discrimination filled life.

 Two politicians in Gujarat have gone on fast. If Narendra Modi is using the communal harmony-coated fast for a boisterous projection of US-certified development in the state to exorcise the ghost of post-Godhra riots, then Shankersinh Vaghela is fasting to scratch the still fresh wounds to widen the chasm between communities for electoral gains.

 But no politician seems inclined to go on fast for the 40 crore Indians who even after 64 years of independence live below the poverty line. Recently, for the benefit of the Supreme Court, the Planning Commission said a person is below the poverty line if he is unable to buy food worth Rs 20 a day at a time when almost every essential commodity is out of his reach.

And if he did not live below the poverty line, that is if he is able to spend Rs 21 a day on himself and his family, then he would have to buy ration from the market as he would be disentitled to get it from PDS shops.

Faced with an absurd definition of poverty, fast has become a common man’s constant companion. Political inaction to streamline supply of subsidised foodgrain to the poor forced Supreme Court to intervene decisively. When Justices Dalveer Bhandari and Deepak Verma said “not a single person should die of starvation”, it would have sounded like a poll-eve political slogan had it not been accompanied by stern directions for distribution of additional grains in 150 poorest districts.

It is the faceless common man — farmer, cobbler, iron-smith, washerman, landless labourer, daily wager, painter, plumber, sewage worker, sweeper — who sustains the wheels of the economy, yet faces the brunt of the economic policies of the government.

Would politicians take turns to live for a few days in the households of the poor and try to understand the hunger, anger and anguish that is stripping the common man of the right to live with dignity? Have they tried to understand the root cause behind the suicide of over 1.40 lakh farmers who left behind tales of debt, poverty and sorrow? Is waiver of loans the answer?

Poverty and hunger have drawn the Supreme Court’s attention periodically. In People’s Union for Democratic Rights vs Union of India [1982 SCC (3) 235], it said utter, grinding poverty had broken the backs and sapped the moral fibre of a majority of the population. “They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce,” it had asked.

Three years later, in the case K C Vasantha Kumar vs Karnataka, the SC said, “Chronic poverty is the bane of Indian society. Market economy and money spinning culture has transformed the general behaviour of society towards its members. Bank balance, property holdings and money power determine the social status of the individual and guarantee the opportunities to rise to the top echelon. How the wealth is acquired has lost significance. Purity in means disappeared with Mahatma Gandhi and we have reached a stage where ends determine the means.”

Even when poverty still ruled society, the apex court in the year 2000 in Islamic Academy case said right to development was also part of human rights. “Economic prosperity or elimination of poverty is not the only goal to be achieved but along with it allow individuals to lead a life with dignity with a view to (make them) participate in the governmental process, so as to enable them to preserve their identity and culture,” it said.

 Sadly, we are very far from eradicating poverty, which was the poll slogan of the Congress party in the 1970s. Politicians still do not understand that hunger and poverty afflict the soul of a person and drive him to do things which are strange to his social and moral DNA.

Fasting may have brought Hazare support for a campaign against corruption. But fasting surely will not get politicians the votes. What voters need is development in the true sense and this alone can ensure prosperity and help eradicate poverty.

http://timesofindia.indiatimes.com/india/Will-politicians-understand-hunger-by-experimenting-with-fast/articleshow/10034539.cms

Rights & wrongs of vigilantism

Supreme Court of India

The Supreme Court’s judgment this month, which struck down the state’s authority to raise armed vigilante groups to counter Maoists, has prompted criticism. But did the apex court have any option?

Uttam Sengupta IN THE TRIBUNE

THE Supreme Court earlier this month declared as ‘unconstitutional’ the temporary recruitment and arming of tribal youth. The ruling was clearly unexpected and the Union Home Minister , while refraining from commenting on the decision, announced that he would have to discuss the issue with the Chief Ministers since it concerned not just Chhattisgarh but nine other states as well. According to reports in the media, both the Union Government and the Chhattisgarh government are preparing to file a petition for reviewing the decision.

The ruling has indeed put the government in a fix. After the apex court’s ruling, the entire force and structure of the SPOs has become illegal. The government would not only have to disband and disarm the SPOs in the shortest possible time, it would also have to stop paying them the token honorarium, ranging from Rs 1,500 to Rs 3,000 a month. Many of these SPOs, who have acted as the “eyes and ears” of the police in Maoist affected districts, may , in desperation, even cross over to the ‘enemy’ and share information and intelligence that they may have gathered as SPOs. Others may refuse to return the firearms given to them, supposedly to defend themselves.

A Superintendent of Police at Raipur was quoted as exclaiming in dismay, “ How do you tell them they cannot carry a weapon ? After all, they have been fighting the Maoists for long. They have been targets and could get killed anytime.” Both the Union Home Minister and the Chhattisgarh government acknowledged that the ruling had come as a major setback to anti-Maoist operations.

How special?

The dictionary defines ‘special’ as ‘uncommon’. And an ‘officer’ is of course a person who commands authority and holds an office. But in independent India, the SPOs, numbering over 70,000 this year and spread across nine states, are neither special or equal to policemen and nor are they officers, for reasons that will become clear later in this write-up.

The antiquated Indian Police Act ( IPA) of 1861 first provided for the appointment of SPOs. If there was an apprehension of rioting or any breach of peace and the regular police force was found to be inadequate to cope with the situation, any police inspector could apply to the court for permission to appoint a specified number of people as SPOs for a temporary period of time.

This allowed the colonial government to maintain a loyal band of ‘bonded’ people , it could fall back on in times of emergency. The provision was also used to reward police informers from the secret fund. The institution was apparently found to be convenient and has been in the statute books since then. Intervention by the Supreme Court of India actually prompted the Chhattisgarh government to enact its own Act, Chhattisgarh Police Act ( CPA) under which it went ahead to appoint 6,500 SPOs.

Those who have visited police camps in Maoist-affected states would have come across these SPOs. Young men or boys in their late teens, wearing ill-fitting uniforms, they generally appear even more scared than the visitors to their camps. They should have been far away from the war-zone, singing love songs and wooing soul-mates, raising families and pursuing their dreams. But here they are huddled like cattle in barracks with no space to stand or walk. The available space is generally occupied by folding cots and the ‘officers’ are forced to roll over cots to reach their own.

They are required to man the watch-towers and crouch in bunkers. They usually lead the security forces during Long Range Patrols, carefully watching out for landmines or sniper-fire. They do the night shifts and of course, as members of a disciplined, uniformed force, they are required to clean the barracks, toilets, fetch water, work in the kitchen as part of daily chores, acutely conscious that their lives can be cut short at any time. Officers indeed.

Criticism

Still the judgment has come in for considerable criticism. While Congress leaders have been understandably silent on the issue, BJP leaders have made no secret of their disappointment, describing the judgment as dangerous. The Supreme Court, it was insinuated, has gone a little overboard in striking down a seemingly reasonable and valid administrative arrangement. The ruling smacked of a political and ideological bias and would be an impediment to good governance, commented an editorial. It was a setback for anti-Maoist operations and would make it tougher for governments and police to enforce law and order in Maoist strongholds, it was eloquently argued.

Others frowned on the judgment that waxed eloquent on an “amoral political economy”, prevailing inequalities in society and the ‘corrupt social and state order’. The Supreme Court’s “lecture” reminding the state of its responsibility to ensure security to all citizens and prevent emergence of great disaffection also did not go down too well. The more charitable of the critics pointed out that the comments made by the Supreme Court were unnecessary and not really relevant. Others bitterly questioned whether it was the court’s business to quote from literature, philosophy and economic treatise and serve a sermon on morality.

The debate is not really central to the issue. The more relevant question is whether the apex court really had an option but to strike down the recruitment of SPOs ? The court has been deliberating on the case for nearly four years and quoted equally extensively from the affidavits filed by both the Union government and the state government in its judgment. For good reason, the critics have refrained from citing these passages from the judgment.

The Union government and the Chhatisgarh government, one also suspects, were far too confident and, therefore, casual about the case. The petition, after all, was filed way back in 2007 by “ Maoist sympathisers” and outsiders like Nandini Sundar and Ramchandra Guha. The apex court had passed a series of interim orders, had asked Chhattisgarh to vacate the schools occupied by security forces and directed the National Human Rights Commission to report on the ground situation. It had also ordered that the SPOs should be recruited strictly in accordance with the law and had refused to impose an interim ban on the recruitment. That possibly convinced both New Delhi and Raipur that the apex court was not inclined to strike at the edifice so painstakingly built by them.

The defence

The affidavit of the Chhattisgarh government claimed that there was an acute shortage of security personnel in the state. While the state required a minimum of 70 battalions to take on the Maoists, it had only 40 battalions at its disposal. Worse, 30 of them were central forces comprising “outsiders” who are neither familiar with the local terrain nor with the local dialects. That is why, it was claimed, it was necessary to recruit local, tribal youth as “guides” and “interpreters”.

The affidavit then argued that the tribal youth had actually volunteered to fight the Maoists. They had been victims of Maoist violence and hence they wanted to avenge the loss of lives and property their families had suffered.

The same affidavit then stated that the tribal youths were armed because they were soft targets and were vulnerable to attacks by Maoists. Arms were given to them in “self-defence”.

At some point, however, they seemed to discard the ‘self-defence’ explanation. It had become necessary to arm the tribal youth, stated one of the affidavits, because the Maoists had also raised local militias with intimate knowledge of the local terrain and the people. It was important, therefore, to raise a “force multiplier” with equally intimate knowledge of local dialects, terrain and customs.

It went on to argue that there was nothing illegal about the recruitment of SPOs since it was being done under a legislation passed by the state legislature and also provided in the Indian Police Act.

The affidavit by the Union government endorsed the claim and asserted that the SPOs played a crucial role in maintaining law and order, which, it pointedly stated, was a state subject. The Union of India claimed to have a limited role to play in the recruitment of SPOs. It merely fixed the upper ceiling of SPOs in each state, primarily because it bore 80 per cent of the expenses incurred on the SPOs. Thereafter, it had only an advisory role. The recruitment, training and deployment were responsibilities of the respective state governments.

The questions

The Supreme Court wanted to know the qualifications required for recruitment as SPOs, the kind of training imparted to them, how and when were they discharged and what kind of protection has been offered to them by the state. It also asked what kind of control the state exercised over the SPOs and what could it do if the SPOs refused to be disarmed whenever ordered ?

The affidavit admitted that the SPOs were barely literate. Pointing out that the law was silent on minimum qualification for SPOs, it added that preference was given to those who have passed standard five in school. In other words, they would not be eligible even for appointment as police constables, which requires them to pass standard eight.

It admitted that no training is given to the SPOs till they completed at least one year in “service”. Then also it was at the discretion of the Superintendent of Police. Later, a fresh affidavit claimed that a training module had been drawn up for the SPOs and they were being schooled in “ Human Rights, the Indian Penal Code, the Criminal Procedure Code and Forensic Science etc.” among other classes.

The Chhattisgarh Police Act made it clear that the SPOs are to be recruited on a purely temporary basis and they can be terminated at any time without assigning any reason. But the same Act also makes it clear that the SPOs would ‘always’ be deemed to be on duty and they could not take up any other assignment.

There was no answer to the obvious question, namely what prevented the state government from recruiting local tribal youth as regular policemen and training them.

The two governments also missed the irony. While they had failed to educate the tribal youth, they saw nothing wrong in using them as “cannon fodder” in the fight against Maoists. The state, exclaimed the Supreme Court Bench, should have been distributing books to them, not guns. Also paradoxical is the claim to train “in two months” the barely literate youth in complex laws and forensic science.

The government was also clearly tempted to take shortcuts. While Chhattisgarh paid Rs 3,000 p.m. to the SPOs, several other states apparently paid much less. Raising a regular police force would have called for a much higher salary payment and a lot more investment on their perks, pension and training. The principle of “equal pay for equal work” does not seem to impress the government. But the affidavits insisted that the SPOs were subject to the “ same discipline and the same chain of command” as applicable to the regular police force.

Indeed, the Chhattisgarh Police Act specified that the SPOs would be responsible for preventing crime, preserving internal security, maintaining public order, enforcing the law, providing security, providing public property, detect offences and arresting offenders.

It comes as no surprise, therefore, that the Supreme Court would be horrified at the brazen bid of the state to raise armed, vigilante groups that operate under the veneer of state patronage. The illiterate or the barely literate tribal youth, sandwiched between the Maoists on the one hand and the police on the other, may have had no option but to accept the ‘generous’ offer of the state, howsoever unfair, uncertain, unequal and humiliating.

But can the state really get away by treating citizens in such a cavalier manner ? The shameful and embarrassing conduct of the state has been redeemed somewhat by the ruling of the Supreme Court. It remains to be seen if our elected governments redeem themselves.

Neither special nor officers

  • Number : 70,000
  • Spread over : 9 states
  • Recruitment : Temporary
  • Discharge : Any time without assigning any reason
  • Training : Nil or farcical
  • Protection : Uncertain
  • Discipline : Same as the police
  • Duties : Same as policemen
  • Salary : `1,500 to `3,000 p.m.

The rationale

  • The state cannot push illiterate, untrained youth to fight
    insurgency
  • It is the state’s duty to protect citizens. Civilians cannot be armed to defend themselves.
  • Armed vigilante groups can turn into a Frankenstein
  • Tribal youth have a right to education, liberty and choice
  • Equal work should be compensated with equal pay
  • The cycle of violence has not abated. So, the problem lies elsewhere.

 http://www.tribuneindia.com/2011/20110717/edit.htm#1

Talk of judicial overreach is bogey: Supreme Court

Supreme Court of India

THE HINDU

Rejecting the criticism of judicial activism, the Supreme Court has said the judiciary has stepped in to give directions only because of executive inaction what with laws enacted by Parliament and the State legislatures in the last 63 years for the poor not being implemented properly. A Bench of Justices G.S. Singhvi and A.K. Ganguly pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution had been extremely inadequate and tardy, and the benefit of welfare measures enshrined in those legislation had not reached millions of poor, downtrodden and disadvantaged sections, nor did efforts to bridge the gap between the haves and have-nots yield the desired result.

Writing the judgment in a case related to sewerage workers, Justice Singhvi said: “The most unfortunate part of the scenario is that whenever one of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach.”

The Bench pointed out that the orders issued for the benefit of weaker sections were invariably challenged in the higher courts. In a large number of cases, the sole object of this exercise is to tire out those who genuinely espouse the cause of the weak and the poor. Justifying the directions issued by the Delhi High Court for protection of sewerage workers on a public interest litigation petition, the Bench said: “The superior courts will be failing in their constitutional duty if they decline to entertain petitions filed by genuine social groups, NGOs and social workers for espousing the cause of those who are deprived of the basic rights available to every human being, what to say of fundamental rights guaranteed under the Constitution.”

The Bench clarified that it deemed it necessary to erase the impression and misgivings among some people that the superior courts, by entertaining PIL petitions for espousing the cause of the poor who could not seek protection and vindication of their rights, exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary, like that of the political and executive constituents of the state, to protect the rights of every citizen and ensure that everyone lived with dignity.

Beijing statement

Quoting the judiciary’s objectives as mentioned in the 1995 Beijing statement, the Bench said these would include ensuring that all persons were able to live securely under the rule of law; promoting within the proper limits of the judicial function the observance and attainment of human rights, and administering the law impartially among persons and between persons and the state.

http://www.thehindu.com/todays-paper/tp-national/article2228591.ece

Release 5 million tonnes of foodgrains: Supreme Court

J. Venkatesan in THE HINDU

To prevent starvation deaths and malnutrition

‘In 150 poorest districts, malnutrition is very intense’

‘The position of foodgrains stocks is extremely good’


New Delhi: To ensure that no starvation death takes place and people are saved from malnutrition as far as possible, the Supreme Court on Saturday directed the Centre to release five million tonnes of foodgrains immediately for distribution in 150 most poverty-stricken districts or other poorer segments in the country.

Though it was a holiday for the court, a Bench of Justices Dalveer Bhandari and Deepak Verma held a special sitting and passed the order, considering the urgency and gravity of the matter. The Bench heard Gopal Subramaniam, Solicitor-General; Mohan Parasaran, Additional Solicitor-General; Colin Gonsalves, senior counsel for the petitioner (People’s Union for Civil Liberties), and other counsel for the respective parties and passed the order. The Bench said: “Admittedly, in the 150 poorest districts of India, the problem of malnutrition is very intense and is related to the inadequacy or lack of food in those areas.

The Union of India must provide adequate foodgrains for these 150 poorest districts, on a priority basis.

“A number of cases of malnutrition and starvation are reported from time to time. Subsidised food is really meant for this section of our society. Fortunately, the position of foodgrains stocks in our country is extremely good. Mr. Parasaran, ASG, submits that as on April 1, 2011 there are 44 million tonnes of stocks. Perhaps, never before have foodgrains stocks been so high. The bumper crop of this season will further improve the situation of existing stocks. Even after keeping adequate foodgrains for emergency or unforeseen circumstances, we would still have huge stocks in our godowns.”

Further, it said: “Millions of tonnes of foodgrains are lying in the open for years because of inadequate storage capacity. Admittedly, about 55,000 tonnes of foodgrains rotted in Punjab and Haryana. A very large chunk of foodgrains were destroyed in the recent Punjab fire because the foodgrains were lying in open. In this background, the 5 million tonnes of foodgrains which the Union of India has already undertaken to additionally allocate, must go to the most vulnerable sections of our society and the parties are in total agreement about this proposition.

“Looking to the enormity and gravity of the problem, as a one-time measure, it is absolutely imperative in the larger public interest to direct the Union of India to reserve another 5 million tonnes of foodgrains for distribution to the 150 poorest districts or the extremely poor and vulnerable sections of our society. This additional 5 million tonnes of foodgrains would be over and above 5 million tonnes which the Union of India has already undertaken to allocate.

“The estimated population of the country as of March, 2010 is 117.67 crores and according to the office of the Registrar-General, Census, the projected population of India as in 2011 is 119.3 crores (Planning Commission working Group on Population Stabilisation for the 11th Five Year Plan). We see no rationale in not distributing foodgrains according to the estimate of the Union of India. The food allocation should be based on every year’s population estimate as carried out by the Planning Commission or the Registrar-General, in the absence of any official census figure,” the Bench said.

http://www.hindu.com/2011/05/15/stories/2011051555310800.htm

Who has the last word?

Posted in FUNDAMENTAL RIGHTS, HUMAN RIGHTS, JUSTICE, RIGHT TO LIFE, RIGHTS by NNLRJ INDIA on March 19, 2011

Euthansia

Euthansia

PUBLISHED IN THE HINDU

The Supreme Court ruling on the Aruna Shanbaug case, allowing passive euthanasia, has been alternately welcomed and criticised by people across the country. Legal experts and medical activists share their thoughts on the implications of the landmark judgement.

For dignity in death

PADMA PRAKASH, medical activist and writer, feels that the Supreme Court has taken a narrow view of an issue that has medical, ethical and social ramifications.

The case of Aruna Shanbaug before the Supreme Court has brought the subject of euthanasia into public debate once again; but allowing for the first time, passive euthanasia in specific circumstances. The Court has ruled, pending legislation, that passive euthanasia is permissible, and brain-dead patients need not be kept alive by support systems or artificial feeding. However, 60-year-old Aruna Shanbaug, having spent 37 years in a hospital bed, who is neither in coma nor brain-dead, may not be allowed to die.

Hailed as groundbreaking, the judgement takes a disappointingly narrow view of an issue that has ramifications across the medical, ethical and social dimensions of society. Primarily engaged with the question of who was Aruna’s ‘next friend’ who may decide to withdraw her life support, the court favoured the hospital staff who have looked after her all these years and rejected the plea of the journalist Pinki Virani who had sought permission to withdraw Aruna’s life support. Since the hospital wanted to keep Aruna alive, the Court upheld its wishes. If later the hospital wishes to withdraw life support to Aruna, it must apply to the court. Extending this logic, the Court has allowed that caretakers of those incapable and lying in similar states to seek passive euthanasia on the patients’ behalf in specific cases following an application to the high courts.

Cost of care

Curiously, the judgement does not touch upon the cost of providing such care. Interestingly, in the Airedale case (1993) in England that went before the House of Lords — quoted at length in the Aruna ruling — a noted member pointed out, “The large resources of skill, labour and money now being devoted to Anthony Bland [the PVS patient whose life support was sought to be removed] might, in the opinion of many, be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come.” Such a concern would be significantly more relevant in India, given that our overcrowded public hospitals have shrinking budgets.

In Belgium, for instance, where euthanasia was legalised in 2002, authorities have to ensure that poor patients do not ask to die only because they cannot afford treatment. In the Netherlands too, which was the first country to legislate on euthanasia, the premise is that the patient has received at all times adequate treatment and care including palliative care. Switzerland does not allow euthanasia, but it does permit physician-assisted suicide in certain conditions. In these countries, only about 35 per cent of such deaths occur in hospitals and end-of-life care is provided at home. Demographics too has weighed in — with an increasing number of people in the pension bracket, the state social welfare and health systems in many European countries are disinclined to support unnecessary prolongation of lives on life support leading to support for legalising euthanasia.

In Japan, where 80 per cent of deaths occur in hospitals, two local courts in separate cases had allowed voluntary euthanasia; but few have subsequently sought euthanasia. Some years ago Japan set up a “bioethics SWAT team” that is on call to help families/caretakers of patients on life support decide whether they may continue such care or withdraw it. The Northern Territories of Australia, where medicare or support is not easily available, passed a short-lived law allowing voluntary euthanasia, subsequently overturned. Singapore does not allow euthanasia, though there have been periodic demands, especially with the increasing technologisation of medicare. This is true in Turkey too, where availability of sophisticated technologies in medicine has revived the debate.

Access to care

Overall, the determination of whether euthanasia must be permitted or legalised is dependent on availability of care, the status of that care, and the social and economic constraints in providing such care. In sum, the premise for even considering euthanasia is the availability and access to care. The Supreme Court in the Aruna case has chosen not to engage with these issues. Even in stipulating the review team that must examine and comment on every plea made to the high courts for passive euthanasia, there is an underlying assumption that social, financial or psychological state of the caretakers are not of import.

It is also assumed that all such cases will be in hospitals. That is of course not the case. Take the case of my domestic help and general factotum, who, for years looked after a paralysed husband, whose condition progressively deteriorated — through neglect — to a near vegetative state. Hospitals had turned him away because “there was nothing they could do”. She would strap him down on the charpoy while she worked in several houses throughout the day; and one day, the cot overturned, he was trapped underneath for hours and died in a hospital that finally admitted him. Such cases abound — increasingly in villages too where the young migrate to towns and there are no able caregivers.

There is growing evidence that access to healthcare is shrinking; a circumstance that will only mean a large number of those who ought to be in hospital under supervised care will be in homes with few resources for end-of-life care. And, clearly, outside the reach of the medical system. If denying end-of-life treatment and care were to be considered passive euthanasia, then as a country we have certainly been practising it for long. Whatever the future direction the issue takes, it must be obvious that without expanding access to healthcare and providing end-of-life and palliative funded care, legislating to allow euthanasia is something of a mockery.

Email: padma@esocialsciences.com)

Condemned to a painful life

PINKI VIRANI on what compelled her to be the “voice” of a woman in permanent vegetative status for 37 years…

On why she went to the Supreme Court with a passive euthanasia plea

I have known Aruna since 1982. The book, Aruna’s Story, was published on her 50th birthday following one year of research and interviews with relatives, hospital authorities of that time, finding court and police records, the shocking unearthing of the fact that the sodomiser was never arrested for rape — because not one doctor or nurse from the hospital came forward to file a case — and so he walked free after a mere seven years in prison. I also travelled to her village in Karnataka to spend time in her home, spoke with relatives in several cities and the man she was to marry. It became clear that she would never have wanted to “live” with such lack of dignity.  So I asked about physiotherapy and was told the nurses had it stopped, which is why her body had atrophied the way it had. I organised a complete medical check-up. This was prevented by hospital doctors just before the ambulance could pick up Aruna for her state-of-the-art analysis in a private hospital. By her 60th birthday it was clear that Aruna would never receive appropriate medical care in the form of drugs and pain-killing dosages. Aruna had been denied a life of dignity for 37 years; she needed – at the very least — dignity in her death. So I requested the Supreme Court to define “life with dignity” as enshrined under Article 21 of the Constitution of India. And slowly taper-out the feed put through her pipe; this would have been done as per international norms set for vegetative patients with the inclusion of calibrated pain-killers.

Reaction to the Supreme Court ruling

Because of Aruna Shanbaug — this tragic woman who has been denied the choice because of those who profess to ‘love’ her by touting her bedsore-less agony – no Indian hereinafter need suffer the way she does. The Supreme Court has permitted Passive Euthanasia; its carefully prescribed parameters can be read on its website where the judgement has been uploaded. Readers could also look to see if her tormentors have been recommended they approach the High Court should they “change their mind”. Aruna’s other gift through this same landmark judgement is that there could be a boost in organ donations, once again positively helping millions of Indians. The judgement provides clarity on the definition of brain-death. Healthy vital organs are wasted while arguments rage over the medico-legal definition of brain-death.

Aruna’s current condition

Incurable. 62 years old. Locked in a room. Felt no direct sunshine for over three and a half decades. A feeding pipe directly to stomach. Prone to diarrhoea, catheter not used.  Finger nails grow into palms.  As a patient in a permanently vegetative state, does not have favourite foods, music, people and does not smile in reaction to external influences. Largely brain-dead due to massive brain-stem injury. Cortically blind. Cannot speak. Or walk. A brittle skeleton which is catatonic or shrieking. In acute pain, no medicines given. This is what her care-givers have condemned Aruna Shanbaug to; a very slow, excruciatingly painful, death.

National Award-winner Pinki Virani, 52, is author of four best-sellers including Deaf Heaven which is currently among international contenders for this year’s prestigious Impac Dublin Literary Prize.

AS TOLD TO R. KRITHIKA)

Judicially crafted remedy

The verdict is a commendable one because for the first time we have guidelines and a procedure outlined for legitimate use of passive euthanasia, feels Supreme Court advocate GOPAL SANKARANARAYANAN.

On April 15, 1989, the scene of a routine football match at Sheffield between the clubs of Liverpool and Nottingham Forest led to one of the worst ever stadium tragedies in history. Due to ineffective police control, many more Liverpool fans entered the venue than could be accommodated, which led to a stampede and the subsequent deaths of 95 people, with as many as 767 others suffering injuries. One of those severely injured was 18-year-old Tony Bland, who suffered punctured lungs and crushed ribs, which cut off oxygen supply to the brain and rendered him a vegetable.

Bland’s own story would have been unremarkable, were it not for the fact that as he continued in what is known as a ‘Persistent Vegetative State’, being kept alive only by artificial nutrition and hydration with no reasonable hope of recovery, his family and doctors sought to withdraw all such support and allow him to die. Although the legal position till then had allowed such a withdrawal only in limited cases where infants were concerned, the legal sanction for the request on Bland’s behalf was finally accorded by the House of Lords in Airedale NHS Trust v. Bland, handed down in 1993. On March 3, 1993, after nine days without food and water, Tony Bland became the 96 th victim of the Hillsborough disaster.

Landmark judgment

Unprecedented as the approach of the English courts was, thanks to the ruling in Bland, in the years since then, close to 50 cases of such deaths have been sanctioned in the UK, where people in vegetative states have died with apparent dignity and little or no distress.

This judgment, and similar trends internationally have come to form the foundation of the Supreme Court’s ruling last week in the case of Aruna Shanbaug, an unfortunate nurse who was brutalised and raped by a sweeper 37 years ago in Bombay — an act where a dog chain around the victim’s neck cut off the oxygen supply and gave her the same vegetative state of Bland — and who till date has been under the care and support of the KEM Hospital where she had been employed. Journalist and author Pinki Virani preferred a petition on behalf of Shanbaug and sought the Court’s intervention to direct the Hospital to stop feeding the patient and allow her to die peacefully.

The Court draws distinctions between active and passive euthanasia (killing and letting die) and recommends that the latter be permitted in certain circumstances. However, of equal importance is the question of who would decide whether life support ought to be withdrawn in a particular case. It is this question that gained prominence, with the Court declaring that it was the hospital staff that had been the family for Shanbaug and not Virani. As the hospital staff clearly wanted Shanbaug to live, the request by Virani for passive euthanasia was rejected.

While the attempt to commit suicide continues to be an offence on the statute book (one of those rare instances where the mere attempt alone can be penalised, but not it’s successful execution), and its validity has been upheld by the Supreme Court in 1996, the present judgment suggests that as the provision has become anachronistic, it is time for Parliament to consider deleting it.

Guidelines and safeguards

In conclusion, the Bench also issued guidelines for the purpose of processing applications for passive euthanasia, expressing its concern that without such safeguards, many unscrupulous elements may take wrongful advantage of the legal position. As a result, all such applications may be made to the High Courts, and three-member Committees of doctors would render their opinions on the cases, which would be considered along with the wishes of the families and near relatives before a decision is taken.

The decision of the Court is a far-reaching and commendable one, and it has been many years coming. It clarifies the limits of Section 306 of the Penal Code which criminalises the abetment of suicide and poses a penal threat to doctors who wish to withdraw life support to patients like Shanbaug. The rationale for this is the fact that in letting a patient die, there is no attempt to terminate his or her natural course of life (as would be the case with active euthanasia), but only removing the facility by which the natural course of life is being artificially extended. In the months to come, may be other families who no longer harbour the hope of meaningful life returning to their dear ones would avail of this judicially crafted remedy. It is interesting to note that this piece of judicial craftsmanship comes from the pen of Justice Markandeya Katju, who is one of the more strident critics of judicial activism.

But as always, as a grim reminder of the limits of the law, and the limitless machinations of the living world, there is one fact: In March 1997, eight years after he was also rendered vegetative by the events at Hillsborough, Andrew Devine became aware of his surroundings and started communicating with his family. After the judgment in Bland’s case, Devine’s solicitor had said, “Mr. and Mrs. Devine sympathise with the Blands but their attitude is not the same. They hope that one day Andrew may recover some of his faculties.”

Who decides?

Why was the customary ‘Best Interests’ test, where the court should be guided by the interests of the patient alone and not of others, ignored in the case of Aruna Shanbaug, asks JAYNA KOTHARI.

Aruna Shanbaug has changed the course of the right to die debate in India. While the Supreme Court rightly rejected the petition seeking permission to remove Aruna’s feeding tube, it went a step ahead permitting passive euthanasia for persons in a permanent vegetative state if it is in their best interests and laid down guidelines for it.

Who decides what is in the patient’s best interests when she is in a permanent vegetative state? Justice Katju held that it was in the Court’s power as ‘Parens Patriae’ to decide what is in the best interests of the patient.

The common law doctrine of ‘Parens Patriae’ has been generally applied in situations where the State must make decisions to protect the interests of persons who are unable to decide for themselves such as minors and persons who are mentally incompetent. Two tests for deciding the ‘Parens Patriae’ jurisdiction on behalf of mentally incompetent persons have been evolved — the ‘Best Interests’ test and the ‘Substituted Judgment’ test. The ‘Substituted Judgment’ test requires the court to step into the shoes of a mentally incompetent person and attempt to make the decision, which the person would have made if she was competent.

Interests of the patient

The Supreme Court in the Suchita Srivastava judgment, where the right to continue the pregnancy of a woman with mental retardation was decided, relied on the ‘Parens Patriae’ doctrine encompassing both these standards. In this case, the substituted judgment test was not required as the woman clearly wished to continue her pregnancy. It held that in deciding the ‘Best Interests’ test, the Court should be guided by the interests of the patient alone and not of others, including guardians. In this manner, the Court protected the patient’s autonomy and refused the termination of her pregnancy.

In Aruna’s case, surprisingly, the Court completely ignored this ‘Substituted Judgment’ standard, upheld by a three-judge bench in the Suchita case. It only relied on the Airedale judgment of the House of Lords where the substituted judgment standard was not used and permitted passive euthanasia on a low standard of ‘best interests’ which should be decided by taking the wishes of parents and relatives in mind.

Denial of rights

Such a ruling denies all recognition of the right to autonomy and self-determination of a person although she may be incompetent to consent. Debates on legal capacity of mentally incompetent persons have moved to protection of their legal capacity and not its usurpation under the criteria of ‘best interests’. In the Nancy Cruzan case, the US Supreme Court held that individuals incompetent to consent retained a right to refuse treatment, but that such a right could be exercised by a surrogate decision maker only when there was clear evidence that the incompetent person would have exercised it. Only when such evidence was lacking could the court still invoke this right in certain circumstances under the “best interest” standards.

The Aruna Shanbaug judgment leaves the door open for passive euthanasia by relatives of persons who are severely disabled, sick and the elderly, with no requirement to see if the patient herself would have consented to it. Are we ready for this?

(The author is a lawyer and researcher practising in the Karnataka High Court.)

A celebration of life?

Most of the concerns about the abuse of the law are relevant only if involuntary euthanasia is legalised and not when it is voluntary, says DR. NAGRAJ G. HUILGOL.

There seems to be considerable confusion about euthanasia with the lay people as well as doctors. It was evident while listening to debates on various TV channels in India.

Euthanasia could be voluntary, non-voluntary, involuntary and passive. Patient seeks to die when euthanasia is voluntary; non-voluntary is when a relative seeks euthanasia with appropriate power of attorney. Involuntary euthanasia is an act of intervention without consent or request by the patient or patient’s relatives with a power of attorney. Voluntary euthanasia is the least controversial. Voluntary euthanasia is expression of autonomy of an individual over his or her own body. It is an answer to the clichéd question, ‘whose life is it anyway?’.

Necessary conditions

There are certain prerequisites to be fulfilled before a request for euthanasia can be made. The conditions are: a patient must voluntarily on his/her own initiative, express the desire to die than suffer. The patient’s judgment must not be altered or influenced by illness, medication, social or economic circumstances or depression. The diseases must be terminal, incurable and causing unrelenting suffering. It has to be ensured that the request was done due to lack of adequate resources. Euthanasia should never be linked with organ donation and harvesting for transplants. A set of doctors who are independent of primary care of the patient need to certify that patient is suffering from terminal and incurable illness. An independent psychiatrist should certify that the person is not undergoing severe depression. There should be adequate time for the person to reverse the decision to seek euthanasia after deciding on the same. All these guidelines have ensured that the fear of a slippery slope is far from real.

Legitimate concerns?

There are many concerns besides the abuse of the law — the famous slippery slope. The experience of Dutch and Oregon law have dispelled this fear. There is no evidence of abuse of the provision so far. Some other concerns are the abuse of the provision to reduce healthcare cost, the law acting as a dampener to evolve better therapeutic options and eliminate the less privileged or those who lie on the fringes of society. Most of the concerns are relevant if involuntary euthanasia is legalised and not when it is voluntary. Death is only a pregnant pause in the symphony of life. Good death, in fact, is a celebration of life.

The writer is Chief Radiation Oncologist, Dr. Balabhai Nanavati Hospital, Mumbai.)

Uniting bond

At the hospital where she has spent more than 42 years of her life, Aruna Shanbaug is much more than just another patient, says VINAYA DESHPANDE.

Aruna Shanbaug, now 60, has been a part of King Edward Memorial (KEM) Hospital, Mumbai, for more than 42 years now — first as a nursing student, then as a nursing staff and then a patient who, while lying in permanent vegetative state for more than 37 years, has bound generations of hospital staff.

“Aruna is the bond that unites us. She means a lot to KEM hospital,” KEM Dean Dr. Sanjay Oak is said to have told the Supreme Court during the hearing.

Most of Aruna’s colleagues and friends have retired now. But the memory of November 27, 1973 has not yet faded in their minds.

Work ethic

Before that fateful day, she was a budding professional who wanted to scale new heights. Aruna could not withstand tardy and shoddy work. Her colleagues still tell tales of her impeccable work standards. That was the reason she reprimanded Sohanlal Valmiki, a ward boy at the canine experiment department of the hospital, whom she suspected of stealing the meat that used to be ordered for the dogs. It was the grudge and the ill-will of this man which was to permanently alter Aruna’s life.

“I still remember the day it happened. After the sister-in-charge informed us, matron Beliman and I rushed to the basement. The moment she saw matron Beliman, tears started rolling down her eyes. She was conscious, she wanted to say something. Her lips were moving, but she could not speak up,” says Pramila Khushe, a nurse at the hospital then and Aruna’s senior.

Aruna was strangulated by a dog chain and sodomised by Sohanlal in the basement of the hospital where she had gone to change after her duty. The brutal attack severely damaged her brain. “I remember the day this incident happened, there were many food poisoning cases in the paediatric ward. Children were lined up for treatment. Aruna volunteered to stay longer that day to help. Such was her integrity towards work. She was very committed,” Ms. Khushe says.

“She was a good girl, a good student and a good nurse. She was a disciplinarian. That may also be the reason why she had to face the kind of misery she did,” Durga Mehta, the then matron of the KEM Hospital and a teacher to Aruna, says.

After the incident, a fleet of doctors and neurosurgeons tried to pull her out of the vegetative state. The attack had cut the oxygen supply to her brain and left her cortically blind. She also suffered brainstem contusion injury and cervical cord injury.

“The one who put her through all this pain, went off with a light punishment. But she is still suffering unbearably for his sins,” Ms. Khushe said. Sohanlal was booked for robbery and attempted murder, but not for “unnatural sexual offence”. The hospital authorities probably did not want to register such a case against Sohanlal because they wanted to protect Aruna from the social ostracism considering her impending marriage. He served a sentence of seven years after which he was let off.

“Her parents had already passed away. She had a brother, but he himself was old then. For four-five years after the incident, her niece used to come regularly and feed her. Then probably she got married and never returned,” Ms. Khushe says.

Dedicated

But the man in Aruna’s life stood strong by her for quite a few years in the hope that she would recover some day. He religiously continued giving her physiotherapy. “We used to feel touched every time we saw him come and sit next to her. He used to give her physiotherapy treatment. He served her when she was so helpless! We felt deep appreciation for him,” Ms. Khushe remembers, even as she fought to hold her tears back.

“He was very dedicated towards her. But after a few years, the doctors in the hospital convinced him to move on with his life,” Ms. Mehta says. Since then, it has been the entire KEM staff including the medical, administrative, nursing and para-medical staff, which has been taking care of Aruna. She is introduced to every new staffer as a family member.

The Mumbai corporation tried to shift her to another hospital twice since 1973, but the nurses protested the decision, making authorities revert. For years, the corporation has spent for her treatment and the KEM hospital has stood by this Ward 4 patient.

“She is like a sister to me. I know her since the time I joined this hospital as a student. We are her family and we want her to live. No one else has the right to decide for her. The verdict is the victory of humanity,” Sister-in-charge Vibhawari Winge says, celebrating the Supreme Court verdict.

Across the spectrum

Passive euthanasia was practiced by the ancients, a prime example being Bhishmacharya choosing the time of his death. Ayurveda says that if the treatment cannot provide a person a quality-life then it is better to give no treatment other than palliative measures. Death is not something to be feared. It should neither be accelerated nor delayed but must be treated as a natural process. Thus it would be considered acceptable to remove life support in the case of a terminally ill person with the consent of all involved.

Death is simply the soul giving up an old body and moving on. There is a saying in India, It does not matter how your life has been throughout but the last thought is very important. Hence dignity of death is a very treasured aspect of Hindu life.

Sri Sri Ravi Shankar, spiritual guru, and Founder, Art of Living.

Passive euthanasia is justified. The quality of life is more important than quantity. If a person can think for himself/herself and wants to go, he/she should be allowed to go using passive euthanasia.

Dignity in death is when a person dies while being surrounded by people he/she loves and who love him/her.

N.S. Hema, Founder, The Association of People with Disability and wheelchair-user for 70 years.

Passive euthanasia is a process by which you withdraw supports like general care and feeding so the patient gradually dies due to dehydration. We are trying to induce western standards into the Indian scenario. Euthanasia in our country can be disastrous as we simply do not have the infrastructure to prevent the misuse. The definition of dignity in death is that there is a process in which we expect the patient to die without much pain.

Dr.Devi Shetty, cardiac surgeon.

I don’t agree with euthanasia––passive or active. Everybody has a right to live. No one should be allowed to kill himself/herself or give permission for another person to die. Suffering is not an excuse to take away God-given life. Dignity in death is surrendering to God’s will, being patient and going when He takes you away.

Y.G. Krishnamurty (100 years), Advocate, Andhra Pradesh High Court, with a record 75 years of being a practising lawyer.

http://www.thehindu.com/arts/magazine/article1553065.ece

Emergency, judiciary , polity

Hans Raj Khanna

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Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is” therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.

JUSTICE HANS RAJ KHANNA IN HIS DISSENTING JUDGEMENT IN THE ADM JABALPUR CASE 1976

 

Belated admission of grievous wrong by Inder Malhotra IN THE TRIBUNE

RATHER belatedly the media has discovered that in a “recent judgment” a two-member bench of the Supreme Court has declared that the apex court’s 1976 judgment upholding the suspension of fundamental rights for the duration of the Emergency (June 1975-March 1977) was “erroneous”. This admission ought to have come much, much earlier, but let that pass. Incidentally, Justice Aftab Ahmed and Justice Ashok Kumar Ganguly made their welcome pronouncement while reviewing and partially reversing an earlier verdict.

On May 5, 2009, the court had confirmed the death sentence passed on a man convicted of murdering four members of a family in 1992. Commuting this sentence to life imprisonment, Justice Ganguly, who wrote the unanimous judgment, argued that the instances of “this court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.” In this context he added: “We can remind ourselves of the majority decision of the Constitution bench of this court (in the Emergency case) … There is no doubt that the majority judgment violated the fundamental rights of a large number of people in this country”.

Understandably, the two Justices have expressed themselves with judicial restraint. But the story of the Supreme Court’s conduct during the Emergency is chilling. Like the other institutions expected to underpin democracy, the highest judiciary also caved in. The five-member Constitution bench’s decision, by a majority four to one, to uphold the virtual elimination of fundamental rights for the duration was nothing short of horrendous.

Chief Justice A. N. Ray had presided over the bench. His elevation was highly controversial because to appoint him as CJI, Prime Minister Indira Gandhi had superseded three of his senior colleagues amidst countrywide protests. This had happened in 1973 immediately after the apex court’s epoch-making judgment — by a majority of seven to six — ruling that Parliament could amend any part of the Constitution but could not alter its “basic structure”. Interestingly, this judgment was a tangled skein of conflicting opinions. So much so that the seven judges who prevailed in relation to an issue were not exactly the same that upheld or rejected another contention. Broadly, the picture was that six judges, headed by the then chief justice, S. M. Sikri, and including the three that were later superseded, were against the government’s contention while the remaining six, of whom Ray was the most senior, were wholly for the government. Justice H. R. Khanna provided the balance, agreeing with the first set on some points and with the second on others.

Justice Khanna was still on the bench when three years later the apex court heard arguments on the legality of the suspension of fundamental rights under the Emergency proclamation. From the word go it was clear that all the judges except Khanna were inclined to uphold the government’s view. At one stage, the dissenting judge asked Attorney-General Niren Dey, whether there was a remedy if a policeman told a citizen that he was going to be shot for no rhyme or reason. Dey replied: “My conscience revolts, My Lords, but under the law there is no remedy.” There was eerie silence in the court’s chamber.

It is also noteworthy that when the time came for CJI Ray to retire, Justice Khanna was the most senior of the possible successors. Needless to add that he was passed over and Justice M. H. Beg, a clone of Ray, appointed CJI. Justice Khanna resigned, of course. The crowning irony is that his dissenting judgment of 1973 is today the law of the land. For, the 44th Constitution amendment has made sure that any future declaration of the Emergency cannot interfere with fundamental rights to life and liberty under Articles 20 and 21.

By a curious coincidence, the Emergency is in the news again for another reason that is essentially trivial. To celebrate its 125th anniversary, the AICC published a volume on the Indian National Congress’s contribution to the making of the Indian nation. A mild criticism of Sanjay Gandhi about the “authoritarian” way in which he enforced such policies as family planning and slum clearance almost instantly touched off a cacophony that often made no sense. Senior BJP leader and former Deputy Prime Minister L. K. Advani has now given a totally different twist to the discussion. Since copies of the AICC publication are not yet available, one has to take Mr. Advani’s word that it has devoted only two paragraphs to the Emergency. His grouse is that the second paragraph on the subject is “a ridiculous attempt to make Sanjay Gandhi a scapegoat” for all the misdeeds such as “mass arrests, suspension of fundamental rights, etc”, that the country had to suffer. For these he lays the blame squarely on Indira Gandhi.

This is not all. Mr Advani compares the Emergency era in India to the Nazi rule in Germany. This surely is ridiculous, to borrow the expression from him. Ugly though the Emergency undoubtedly was, during it Delhi wasn’t like Berlin under Hitler, Moscow under Stalin, Beijing under Mao or Islamabad under Zia.

Two factors seem to have affected the BJP leader’s judgment. First, the Congress general secretary Digvijaya Singh’s overblown rhetoric against the Sangh Parivar describing RSS leaders as “Nazis”; and, secondly, that while the Gandhi dynasty controls the Congress and rules the country, there are at least two Gandhis in the BJP ranks, too.

Tragically, we Indians are disinterested in history, and when in need of interpreting history we tend to do so in a partisan or palpably esoteric manner. Any dispassionate person can discern that over the last 35 years the perspective on the Emergency has undergone a major change, regardless of the fact that more than half the Indians were born after that hammer-blow. They know little about the Emergency and care even less. Remarkably, an ever-increasing proportion of even those who used to hold Indira Gandhi alone responsible for what went wrong now accept that if she sinned, politically speaking, she was also being sinned against. Some are doubtless implacably hostile to her. However, premier sociologist Andre Beitelle, eminent historian Bipan Chandra and prominent scholar Ramchandra Guha are agreed that the Emergency was “scripted jointly by Indira and J.P.”, as Jayaprakash Narayan was popularly known. According to Professor Beteille, the “anarchy” that J.P. promoted and the “abuse of power” by Indira and her younger son, Sanjay, were “but two sides of the same coin”.

ADM JABALPUR CASE

Young Bhil woman paraded naked- SC slams state

Posted in ACCESS TO JUSTICE, CRIMINAL JUSTICE SYSTEM, RIGHT TO LIFE, RIGHTS by NNLRJ INDIA on January 5, 2011
An ethnic Adivasi woman from the Kutia Kondh t...

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INDIAN EXPRESS

Observing that it is time to undo the “historical injustice” to tribals, the Supreme Court today rued that the one-year jail term for four persons for parading a young Bhil woman naked in Maharashtra was too little and wondered why the State never sought harsher punishment.

The Apex court also said the mentality of people in the country towards tribals must change, and they must be given the respect they deserve as the original inhabitants of India.

“The injustice done to the tribal people of India is a shameful chapter in our country’s history,” it said, observing they are “generally superior” in character to non-tribals.

The court made these remarks while upholding a one-year jail term awarded to four persons, including a woman, for the “shocking” incident involving the 25-year-old tribal over 16 years ago in a village in Maharashtra.

“The parade of a tribal woman on the village road in broad daylight is shameful, shocking and outrageous,” said a bench of justices Markandey Katju and Gyan Sudha Misra.

“The dishonour of victim Nandabai called for harsher punishment, and we are surprised that the state government did not file any appeal for enhancement of the punishment awarded by the additional sessions judge in February 1998,” it said.

The bench also lamented that the Bombay High Court earlier, while adjudicating the appeal by the four convicts, had set aside their convictions under stringent Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on mere technicalities that the victim was not able to produce her caste certificate.

“It is the duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimised for thousands of years by terrible oppression and atrocities,” the court said upset by the injustice meted out to the Bhil woman.

“The injustice done to the tribal people of India is a shameful chapter in our country’s history,” said the bench, adding, “The tribals were called ‘rakshas’ (demons), ‘asuras’, and what not.

“They were slaughtered in large numbers and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries.

Despite this horrible oppression on them, the tribals of India have generally retained a higher level of ethics than the non-tribals in our country. They normally do not cheat, do not tell lies, and do other misdeeds which many non-tribals do,” the bench said.

“They are generally superior in character to the non-tribals. It is time now to undo the historical injustice to them,” the court said.

The incident dates back to 1994, when the Bhil woman was assaulted and paraded naked by four of her co-villagers – Kailash, Balu, Subhash and Subhadra, for having a relation with one of their family members, Vikram, who was also the father of Nandabai’s daughter.

The four had assaulted her and paraded her naked to drive her out of the village as they wanted to get Vikram married to some other girl of their own caste.

SOME OBSERVATIONS FROM THE JUDGEMENT ARE:

This appeal furnishes a typical instance of how many of our people in India have been treating the tribal people (Scheduled Tribes or Adivasis), who are probably the descendants of the original inhabitants of India, but  now constitute only about 8% of our total population, and as a group are one of the most marginalized and vulnerable communities in India characterized by high level of poverty, illiteracy, unemployment, disease, and landlessness.

The victim in the present case is a young woman Nandabai 25 years of age belonging to the Bhil tribe which is a Scheduled Tribe (ST) in Maharashtra, who was beaten with fists and kicks and stripped naked by the accused persons after tearing her blouse and brassieres and then got paraded in naked condition on the road of a village while being beaten and abused by the accused herein.

The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonor of the victim Nandabai called for harsher punishment, and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge.

It is alleged by the appellants that the people belonging to the Bhil community live in torn clothes as they do not have proper clothes to wear. This itself shows the mentality of the accused who regard tribal people as inferior or sub-humans. This is totally unacceptable in modern India.

The Bhils are probably the descendants of some of the original inhabitants of India living in various parts of the country particularly southern Rajasthan, Maharashtra, Madhya Pradesh etc. They are mostly tribal people and have managed to preserve many of their tribal customs despite many oppressions and atrocities from other communities.

It is stated in the Article `World Directory of Minorities and Indigenous Peoples – India:      Advasis’, that in Maharashtra Bhils were mercilessly persecuted in the 17th century.      If a criminal was caught and found to be a Bhil, he or she was often killed on the spot. Historical accounts tell us of entire Bhil communities being killed and wiped out. Hence, Bhils retreated to the strongholds of the hills and forests.

Thus Bhils are probably the descendants of some of the original inhabitants of India known as the `aborigines’ or Scheduled Tribes (Adivasis), who presently comprise of only about 8% of the population of India. The rest 92 % of the population of India consists of descendants of immigrants.    Thus India is broadly a country of immigrants like North America. We may consider this in some detail.

India is broadly a country of immigrants   While North America (USA and Canada) is a country of new

immigrants, who came mainly from Europe over the last four or five centuries, India is a country of old immigrants in which people have been coming in over the last ten thousand years or so. Probably about 92% people living in India today are descendants of immigrants, who came mainly from the North-West, and to a lesser extent from the North-East. Since this is a point of great importance for the understanding of our country, it is necessary to go into it in some detail.

People migrate from uncomfortable areas to comfortable areas. This is natural because everyone wants to live in comfort. Before the coming of modern industry there were agricultural societies everywhere, and India was a paradise for these because agriculture requires level land, fertile soil, plenty of water for irrigation etc. which was in abundance in India. Why should anybody living in India migrate to, say, Afghanistan which has a harsh terrain, rocky and mountainous and covered with snow for several months in a year when one cannot grow any crop? Hence, almost all immigrations and invasions came from outside into India (except those Indians who were sent out during British rule as indentured labour, and the recent migration of a few million Indians to the developed countries for job   opportunities). There is perhaps not a single instance of an invasion from India to outside India.

India was a veritable paradise for pastoral and agricultural societies because it has level & fertile land, hundreds of rivers, forests etc. and is rich in natural resources. Hence for thousands of years people kept pouring into India because they found a comfortable life here in a country which was gifted by nature.

As the great Urdu poet Firaq Gorakhpuri wrote:

“Sar Zamin-e–hind par aqwaam-e-alam ke firaq

Kafile guzarte gae Hindustan banta gaya”

Which means –

“In the land of Hind, the Caravans of the peoples of

The world kept coming in and India kept getting formed”.

24.   Who were the original inhabitants of India ? At one time it was believed that the Dravidians were the original inhabitants. However, this view has been considerably modified subsequently, and now the generally accepted belief is that the original inhabitants of India were the pre-Dravidian aborigines i.e. the ancestors of the present tribals or advasis

(Scheduled Tribes). In this connection it is stated in The Cambridge History of India (Vol-I), Ancient India as follows:

“It must be remembered, however, that, when the term `Dravidian’ is thus used  thnographically, it is nothing more  than a convenient label. It must not be assumed that the speakers of the Dravidian languages are aborigines. In Southern  India, as in the North, the same general distinction exists between the more primitive tribes of the hills and jungles and   the civilized inhabitants of the fertile tracts; and some  ethnologists hold that the difference is racial and not merely the    result of culture. Mr. Thurston, for instance, says:

“It is the Pre-Dravidian aborigines, and not the later and more cultured Dravidians, who must be regarded as the primitive existing race…… These      Pre-Dravidians …… are differentiated from the Dravidian classes by their short stature and broad   (platyrhine) noses. There is strong ground for the belief that the Pre-Dravidians are ethnically related to the Veddas of Ceylon, the Talas of the Celebes,    the Batin of Sumatra, and possibly the Australians.     (The Madras Presidency, pp. 124-5.)”

It would seem probable, then, that the original speakers of the  Dravidian languages were outsiders, and that the ethnographical  Dravidians are a mixed race. In the more habitable regions the  two elements have fused, while representatives of the aborigines are still in the fastnesses (in hills and forests) to which they retired before the encroachments of the newcomers.   If this view be correct, we must suppose that these aborigines  have, in the course of long ages, lost their ancient languages and adopted those of their conquerors. The process of linguistic  transformation, which may still be observed in other parts of  India, would seem to have been carried out more completely in  the South than elsewhere.

The theory that the Dravidian element is the most ancient which we can discover in the population of Northern India, must also be modified by what we now know of the Munda languages,the Indian representatives of the Austric family of speech, and the mixed languages in which their influence has been traced (p.43). Here, according to the evidence now available, it would seem that the Austric element is the oldest, and that it has been overlaid in different regions by successive waves of Dravidian and Indo-European on the one hand, and by Tibeto-Chinese on the other. Most ethnologists hold that there is no difference in physical type between the present speakers of Munda and Dravidian languages. This statement has been called in question; but, if it is true, it shows that racial conditions have become so complicated that it is no longer possible to analyse their constituents. Language alone has preserved a record which would otherwise have been lost.

At the same time, there can be little doubt that Dravidian languages were actually flourishing in the western regions of Northern India at the period when languages of the Indo-European type were introduced by the Aryan invasions from the north-west. Dravidian characteristics have been traced alike in Vedic and Classical Sanskrit, in the Prakrits, or early popular dialects, and in the modern vernaculars derived from them. The linguistic strata would thus appear to be arranged in the order- Austric, Dravidian, Indo-European.

There is good ground, then, for supposing that, before the coming of the Indo-Aryans speakers the Dravidian languages predominated both in Northern and in Southern India; but, as we have seen, older elements are discoverable in the populations of both regions, and therefore the assumption at he Dravidians are aboriginal is no longer tenable. Is there anyevidence to show whence they came into India? No theory of their origin can be maintained which does not account for the existence of Brahui, the large island of Dravidian speech in the mountainous regions of distant Baluchistan which lie near the western routes into India. Is Brahui a surviving trace of the immigration of Dravidian – speaking peoples into India from the west? Or does it mark the  limits of an overflow form India into Baluchistan? Both   theories have been held; but as all the great movements of  peoples have been into India and not out of India, and as a  remote mountainous district may be expected to retain the survivals of ancient races while it is not likely to have been  colonized, the former view would a priori seem to be by far the more probable.” (See `Brahui’ on Google).

In Google `The original inhabitants of India’, it is mentioned :

“A number of earlier anthropologists held the view that the  Dravidian peoples together were a        distinct race. However, comprehensive genetic studies have proven that this is not the case.  The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either  Indo-Aryan or Dravidian languages”

Thus the generally accepted view now is that the original inhabitants of India were not the Dravidians but the pre-Dravidians Munda aborigines whose descendants presently live in parts of Chotanagpur (Jharkhand),Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman Islands, the Adivasis in various parts of India (especially in the forests and hills) e.g. Gonds, Santhals, Bhils, etc. is not necessary for us to go into further details into this issue, but the facts mentioned above certainly lends support to the view that about 92% people living in India are descendants of immigrants (though more research is required).

It is for this reason that there is such tremendous diversity in India.This diversity is a significant feature of our country, and the only way to explain it is to accept that India is largely a country of immigrants.

There are a large number of religions, castes, languages, ethnic groups, cultures etc. in our country, which is due to the fact that India is a ountry of immigrants. Somebody is tall, somebody is short, some are dark,some are fair complexioned, with all kinds of shades in between, someone has Caucasian features, someone has Mongoloid features, someone has Negroid features, etc. There are differences in dress, food habits and various other matters.

We may compare India with China which is larger both in population and in land area than India. China has a population of about 1.3 billion whereas our population is roughly 1.1 billion. Also, China has more than twice our land area. However, all Chinese have Mongoloid features; they have a common written script (Mandarin Chinese) and 95% of them belong to one ethnic group, called the Han Chinese. Hence there is a broad (though not absolute) homogeneity in China.

On the other hand, as stated above, India has tremendous diversity and this is due to the large scale migrations and invasions into India over thousands of years. The various immigrants/invaders who came into India brought with them their different cultures, languages, religions, etc. Which accounts for the tremendous diversity in India.

Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.

Thus it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country. The Constitution guarantees to all citizens freedom of speech (Article 19), freedom of religion (Article 25), equality (Articles 14 to 17),liberty (Article 21), etc.

However, giving formal equality to all groups or communities in India would not result in genuine quality. The historically disadvantaged groups must be given special protection and help so that they can be uplifted from their poverty and low social status.   It is for this reason that special

provisions have been made in our Constitution in Articles 15(4), 15(5),16(4), 16(4A), 46, etc. for the upliftment of these groups. Among these disadvantaged groups, the most disadvantaged and marginalized in India are the Adivasis (STs), who, as already mentioned, are the descendants of the original inhabitants of India, and are the most marginalized and living in terrible poverty with high rates of illiteracy, disease, early mortality etc.Their plight has been described by this Court in Samatha vs. State of Andhra Pradesh and Ors. AIR 1997 SC 3297 (vide paragraphs 12 to 15).Hence, it is the duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic and social status, since they have been victimized for thousands of years by terrible oppression and atrocities. The mentality of our countrymen towards these tribals must change, and they must be given the respect they deserve as the original inhabitants of India.

The bravery of the Bhils was accepted by that great Indian warrior Rana Pratap, who held a high opinion of Bhils as part of his army.

The injustice done to the tribal people of India is a shameful chapter in our country’s history.    The tribals were called `rakshas’ (demons), `asuras’, and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. They were deprived of their lands,and pushed into forests and hills where they eke out a miserable existence of poverty, illiteracy, disease, etc. And now efforts are being made by some people to deprive them even of their forest and hill land where they are living, and the forest produce on which they survive.

The well known example of the injustice to the tribals is the story of Eklavya in the Adiparva of the Mahabharat. Eklavya wanted to learn archery, but Dronacharya refused to teach him, regarding him as low born. Eklavya then built a statue of Dronacharya and practiced archery before the statue. He would have perhaps become a better archer than Arjun, but since Arjun was Dronacharya’s favourite pupil Dronacharya told Eklavya to cut off his right thumb and give it to him as `guru dakshina’ (gift to the teacher given traditionally by the student after his study is complete).  In his Simplicity Eklavya did what he was told.

This was a shameful act on the part of Dronacharya. He had not even taught Eklavya, so what right had he to demand `guru dakshina’, and that too of the right thumb of Eklavya so that the latter may not become a better archer than his favourite pupil Arjun?

Despite this horrible oppression on them, the tribals of India havegenerally (though not invariably) retained a higher level of ethics than the non-tribals in our country. They normally do not cheat, tell lies, and do other misdeeds which many non-tribals do. They are generally superior in character to the non-tribals. It is time now to undo the historical injustice to them.  Instances like the one with which we are concerned in this case deserve total condemnation and harsh punishment.

With these observations the appeal stands dismissed.

…………………………..J.   (Markandey Katju)

………………………….J. Gyan Sudha Misra)

New Delhi;

5th January, 2011

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Judgment that risks tainting democracy

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Vinay Sitapati IN THE HINDU

Indian law affords Binayak Sen one automatic right to appeal, and another at the discretion of the Supreme Court. Meanwhile, given the visible disparity between the quality of allegations against him and the repercussions, the judgment is sure to provoke a national and international outcry.

One thousand three hundred and twenty days after he was first arrested, Binayak Sen has been sentenced to life imprisonment for sedition against the Indian state. Narratives on his guilt portray him as an “intellectual” coordinating Naxal attacks in the red corridor, just as narratives on his innocence are of a sainted doctor fingered by a vengeful state. But the only narrative that really matters is the legal case against him, and this in turn hinges on three distinct legal questions: Is the evidence against Dr. Sen enough to convict him? Are the laws applied to him fair? And finally, is the maximalist sentence (life imprisonment) justified?

Around a single event

The evidence against Dr. Sen centres on a single event. He is accused of having met a jailed Naxalite, Narayan Sanyal, 33 times and carried letters from him to a Naxalite, Piyush Guha. But Dr. Sen met Sanyal in Raipur Central Jail with the permission of the Chhattisgarh police; the jail superintendent who supervised the meetings told the Raipur sessions court that no letters were exchanged. At the other end of the “crime”, Piyush Guha did not name him when he appeared before a magistrate. He is alleged to have implicated Dr. Sen while in police custody. But this is legally barred from being weighed as evidence, since all custodial confessions are presumed tainted with torture. The central allegation against him is therefore tenuous at both ends. Other attempts to link him to Naxalites are individually trivial (or downright dubious, like an unsigned letter from the CPI-Maoists allegedly found in his house, but which is not part of the official seizure memo). But taken together they have managed to convince Justice B.P. Verma of Dr. Sen’s role in aiding and abetting Naxal groups.

The second concern is the fairness of the laws used against Dr. Sen. Section 124A of the Indian Penal Code (Sedition) is a colonial-era law that has been previously invoked against Mohandas Karamchand Gandhi. Since it is a serious offence with the possibility of life in jail, in the 1962 case of Kedar Nath Singh v. State of Bihar the Supreme Court limited the definition of sedition to the “tendency to create disorder or disturbance of public peace by resort to violence.” Dr. Sen is convicted for acting as a letter courier between Naxalites; it is questionable if this “act” falls within the definition of sedition.

The other laws that Dr. Sen has been convicted under, the Chhattisgarh Special Public Security Act and the Unlawful Activities (Prevention) Act, make illegal a wide variety of actions that “support” unlawful activities: taking part in meetings or harbouring a Naxalite. These laws have been invoked against grain merchants and cloth traders who unwittingly sold their wares to Naxalites. Taken together, what all these laws do is to broaden the scope of what “guilt by association” means. Perhaps this is understandable in a State where Maoists are present in half of its 18 districts and requires an army of civilian supporters to sustain a war under forested cover. But fashioning a blunt legal tool to go after an elusive enemy enhances the risk of snaring innocents.

The final concern

The Congress party has declined to comment on the judgment, invoking the prerogative of an independent judiciary. It is no one’s argument that the decision was politically determined. But political abuse includes the fairness of the laws formulated by the political class for judges to impose. After all, judicial independence must also consider the quality of laws that the Raipur sessions court had to enforce, and those laws define “guilt by association” so broadly that they blur the line between innocent and guilty.

The final concern is that of punishment. Dr. Binayak Sen has been sentenced to life imprisonment for conspiring to commit sedition. Sentencing ranges from three years to life in jail. Justifying the use of the maximalist sentence, Justice Verma’s Hindi judgment points to “the way that terrorists and Maoists are killing … paramilitary forces … and innocent Adivasis.” But surely there is a difference between CPI (Maoist) General Secretary Ganapati, a man with much blood on his hands, and a mere courier of letters between Naxalites? Even if Dr. Sen is guilty as charged, that charge is not of violence — something he has repeatedly spoken out against. To club varying actions together defeats the purpose of flexibility in sentencing, which is after all to permit the judge to recognise degrees of motivations and culpabilities.

The Raipur sessions court verdict is only the quarterfinal. Indian law affords Dr. Sen one automatic right to appeal, and another at the discretion of the Supreme Court. Meanwhile, given the visible disparity between the quality of allegations against him and the repercussions, the judgment is sure to provoke an outcry, if the national and international outrage over his two-year long arrest without bail is any indication (already Amnesty International has criticised the verdict).

The outcry will reverberate beyond one man. In 2009, a non-violent critic of the state was held guilty of sedition and sentenced to a lengthy spell in prison. That man’s name is Liu Xiaobo, and the international focus on him dims the mandarin equivalent of India Shining. While the specific “crimes” of the 2010 Nobel Prize winner vary from those of Dr. Binayak Sen, the life imprisonment given to the Chhattisgarh doctor will surely discredit the justifiable struggle against Naxalism much as Mr. Liu’s incarceration discounts the distance China has travelled since Tiananmen Square. Apart from the irreparable harm to the life of an individual and his family, the judgment risks tainting Indian democracy itself.

( The writer is a doctoral student working on law and politics in India.)

http://www.hindu.com/2010/12/31/stories/2010123155081300.htm

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