Friday, December 24, 2010

Binayak Sen and Section 124-A

The verdict by the Sessions Court in Raipur sentiencing Binayak Sen and two others to life imprisonment raises questions that are both political and legal. Section 124- A, on which the prosecution rested its case before sessions judge B.P.Verma, did not figure when the Indian Penal Code was enacted in 1860. This section was inserted a decade after the act came into force and historians agree that the insertion was done in order to deal with the expressions of nationalism (disloyalty towards the Crown as it was seen by the rulers then) across the country by then.

The insertion, intended to deal with nationalist expressions in a section of the newspapers at that time, was put to use against Bal Gangadhar Tilak in 1897. Tilak was charged of sedition for writing an article in Kesri where he eulogized Shivaji and blamed the British officers for the hardships imposed on the people of India in the context of the Plague. Tilak defended himself saying that he did not intend any hatred against the Queen and was only blaming those who administered India on her behalf.

Justice Strachey, of the Bombay High Court, who heard the case against Tilak relied on a definition of sedition by Sir Comer Petheram (in the Queen Empress v Jogendra Chunder Bose case). That ``disaffection’’ meant ``a feeling contrary to affection’’ to hold that ``if a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection in fact, produced by them’’.

Tilak was sentenced to 18 months in jail in that instance. Lokmanya Tilak was tried, a second time, under the same section of the IPC in July 1906. Justice Dawar’s sentence, this time, led to Tilak being deported to Mandalay. As an aside, it may be added that Tilak went on appeal against the sessions judge and that Mohammed Ali Jinnah was his lawyer in that case!

Section 124-A was invoked again in 1922 and the accused this time was M.K.Gandhi. The charge was that articles he wrote in Young India were seditious. Gandhi did not deny the charges. He, instead, argued that ``to preach disaffection towards the existing system of government has become almost a passion with me…’’. Bapu then said: ``The only course open to you, the Judge, is … either to resign your post or inflict on me the severest penalty, if you believe that the system and the law you are assisting to administer are good for the people.’’ Justice Broomfield bowed to Gandhi, noted that Gandhi had made his task easier by pleading guilty added: ``You will not consider it unreasonable, I think, that you should be classed with Mr. Tilak’’ before pronouncing the judgment sentencing Gandhi to six years imprisonment.

That was not all. Justice Broomfield went on to add that if the government later deemed it fit to reduce the term ``no one would be better pleased than I’’. Well. Justice Broomfield, in 1922, did not have the benefit of a judgment that would radically alter the definition of disaffection and the law on sedition. On January 24, 1962, Justice B.P.Sinha, Chief Justice of India, along with four other judges, redefined the scope of Section 124-A in the Kedar Nath Singh vs State of Bihar (AIR-1962-SC-0-955) to hold that the Section can be invoked only where the words, spoken or written, have the pernicious tendency or intention of creating public disorder or disturbance of law and order. The necessary ingredient of ``intention’’ alone makes Section 124-A renders the provision as falling within the exceptions to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution.

This was held and reiterated by the Supreme Court by Justices A.S.Anand and K.T.Thomas in the Bilal Ahmed Kaloo vs State of Andhra Pradesh (AIR-1997-SC-0-3483): That mens rea is a necessary ingredient for prosecution under IPC Section 124-A as much as in such other sections as 153-A and others.

B.P.Verma, Session Judge at Raipur, may not have to be aware of such personalities as Tilak and Gandhi. But then, for him to have been unaware of the judgments in the cases involving Section 124-A, which are all part of any standard book on the Indian Penal Code and to have glossed over the substantial changes in the law between the time Justice Strachey and Justice Broomfield sat on judgment and the Supreme Court judgment in 1962 in the Kedar Nath Singh case is indeed baffling to say the least. He must have known that Sir Comer Petheram (in the Queen Empress v Jogendra Chunder Bose case) on ``dissafection’’ is no longer valid and if Justice Strachey were to try Tilak or Justice Broomfield was to try Gandhi on another day after 1962, the outcome could have been different.

Binayak Sen may have been found possessing some literature that may have been published by the CPI(Maoist), banned under the Unlawful Activities (Prevention) Act, 1968. But to hold that as the basis to conclude that he was a member of that banned outfit (which is what Section 20 of the Act deals with) is to have stretched the scope of the Indian Evidence Act, 1872 beyond all canons. That Session Judge Verma did not find sufficient evidence against Sen under Section 120-B of the IPC and hence acquitted him of charges under that section is a relevant point here. In other words, the judge did not find sufficient evidence of conspiracy and yet decided to sentence the accused to life imprisonment is certainly bad in law.

All these and may other points will be raised in the Chattisgarh High Court soon. And the High Court is certainly the forum for that. Meanwhile, it will be in order to recall what M.C.Chagla, then was the Chief Justice of the Bombay High Court, said on July 15, 1956 while unveiling a tablet in front of the court hall where Tilak was tried and sentenced: ``It may be said that this conviction was a technical compliance with justice, but we are here emphatically to state that it was a flagrant denial of substantial justice…’’

Tuesday, December 21, 2010

Who then is our Prime Minister?

The Congress plenary at Burari (adjacent to New Delhi) last week has raised a whole lot of issues. The party leaders claimed a legacy of 126 years. It is true that the Indian National Congress by which name the party headed by Sonia Gandhi is known even today was founded in December 1885. But then, in the years between then and now, a whole lot of splits have reduced this outfit into just one small element of what it was. In any case, those who sat on the stage at Burari and those who formed the audience had nothing to do with any of the activities of the INC in the true sense of the term.

Well. With the passage of time, it is not proper to expect the generation that fought for freedom to be around to this day. The point is that even those who are alive from that generation would have nothing to do with Sonia’s party notwithstanding her own association with the Nehru dynasty. Those constituting the crowd at Burari and the leaders who sat there are at best the legatees of a political culture that look at their association with the Congress as a means to some place in the power structure and in that sense cannot claim the legacy of that mighty organisation that was born in 1885.

Beginning with Rahul Gandhi and including such others as Sachin Pilot, Jitin Prasad, Karthi Chidambaram, G.K.Vasan and all those young and flamboyant leaders, the fact is that they are all their because of their parents. And some others like A.K.Antony, Pranab Mukherjee and Ahmed Patel are there because they happened to join the Congress at some time when the party was in power and because they decided to live with the party. Dr. Manmohan Singh, however, belongs to another league. Like Kapil Sibal and Jairam Ramesh, he is there in the Congress because he decided at some time to be there and being in the Congress has done them good and some good has also accrued to the nation.

These men are known to be clean and unlike such others as Suresh Kalmadi and Vilasrao Deshmukh, they do not face any charges of corruption. It is indeed a silver lining that one can count senior ministers as ``clean’’ and this is inevitable when ``unclean’’ men around seem to be the rule.

Having said that, it is indeed important to stress here that such a record of being ``clean’’ cannot be made a virtue. If the claims to the 125 years legacy of the Indian National Congress is to be accepted, it is important that cleanliness is not treated a virtue but a necessary condition. And this is where Sonia Gandhi let the cat out of the bag. Insisting that the Prime Minister was a man of impeccable character and screaming against anyone who raised a finger against his integrity, Sonia simply let the cat out of the bag. Did she admit to un-clean men being around in the cabinet? She had to do that. It was inevitable given the one-scam-a-day record that the UPA cabinet is now facing and in the larger context of the 2G Spectrum allocation scam.

Well. None and not even Sonia can now deny that the 2G Spectrum allocation was a squeaky clean affair. In that case, Kapil Sibal need not be doing what he is doing after Raja left Sanchar Bhawan. In that case, the CBI need not raid the premises of Raja and many others. In that case, the Congress would not have to stonewall the opposition demand for a JPC. The fact is that something is rotten in New Delhi and the stink is pervasive. The UPA as a whole is in a state from where no rhetoric can save its image. The truth is that 2G spectrum was sold out to ineligible and bogus and fly-by-night firms at prices that were far too less than what it should have been and that the then Minister simply trampled upon all rules to achieve this.

And in the midst of all these, it was ironical that the Prime Minister invoked Ceaser’s wife and offered himself to be examined by the Public Accounts Committee of the Lok Sabha. It is indeed strange that the Prime Minister sought to present his willingness to speak before the PAC as evidence of his cleanliness! And that he does not have anything to hide.

But then, Mr. Prime Minister, let it be known to you and to the people who read this that the Rules of Procedure and Conduct of Business in Lok Sabha does not give you the option of not going before the PAC if summoned. Rule 269(1) clearly lays down the powers to the committee, to summon anyone, through the Secretary General of the Lok Sabha and also demand relevant papers in connection with the matter.

The question may arise then as to why does the opposition insist on a JPC and is not content with the PAC. The answer to this lies in Rule 279 of the same Rules of Procedure. The PAC, through its chairman, can only make a brief statement after the probe and lay the report before the House. The PAC report may be publicized but unlike in the case of a JPC, there is no need for the Government to act on the report and there is no need for an Action Taken Report, which is necessary in the case of the JPC.

Well. Ceaser’s wife shall be above suspicion. Manmohan Singh may not have anything to hide. Not even such allusions from the Radia tapes that there was pressure, from many quarters, that Raja be made the Telecom Minister in May 2009. But then, the truth could be that he did not know most such things happening around him and that he did not know that 2G spectrum sale was a scandalous affair. All this, then raises a serious question: Who then is our Prime Minister?

Friday, December 17, 2010

We Deserve someone better as NHRC Chairman

Justice K.G.Balakrishnan, now heading the National Human Rights Commission (NHRC), seems determined to lend all his might to drain out the peoples’ confidence in the higher judiciary in India

The controversy involving Justice Balakrishnan was revived in the public domain only after a Division Bench of the Madras High Court found serious wrong doing on the part of R.K.Chandramohen and directed that he be suspended from the Bar Council of Tamil Nadu. But for that, the question as to whether the former CJI foreclosed a case, involving serious allegations against A.Raja, even at the cost of letting the majesty of the law and the courts be eroded. One is obliged to Justices F.M.Ibrahim Khalifullah and M.M.Sundaresh for their order on December 7, 2010.

Coming to the issue, Advocate Chandramohen, who is also chairman of the Bar Council of Tamil Nadu, had walked into Justice Regupathy’s chamber, on June 12, 2010, in an attempt to pressure the judge and obtain an anticipatory bail in favour of his client (a medical doctor and his son, a medical college student, accused in a marksheet scam and a murder). The advocate invoked the name of A.Raja, then a Union Minister, as someone interested in having such an order and held out his mobile phone to the judge saying that the minister was on the other end and wanting to talk. Justice Regupathy refused to entertain the lawyer.

No one knew about all these until the judge, provoked by the same lawyer in open court, said that he would reveal all that happened in his chamber. This was when the same case came up for hearing before Justice Regupathy on June 29, 2009. To be fair, the judge did not reveal the minister’s identity. But anyone who knew the father-son duo seeking anticipatory bail could conclude that it was Raja and it was discussed all along the corridors and the quadrangle area where advocates engage in tittle-tattle.

The media reported all that was said in the open court the following day. And that led to two things. Justice Regupathy wrote about all that happened in his chamber to Chief Justice Gokhale on July 2, 2009. And Justice Gokhale forwarded that letter along with a note to Justice Balakrishnan, the CJI at that time, on July 5, 2009. Even while none among us knew that Justice Regupathy had named Raja as the minister whose name was invoked by the lawyer, the Chief Justice of India knew that even then. He did not act. Justice Balakrishnan had another opportunity to act when a memorandum by MPs to the Prime Minister on the same issue was forwarded to him. He did not act. His own letter to Justice Gokhale, on August 8, 2009, mentioned about the media reports and about ``a Union Minister’’.

Justice Balakrishnan was a powerful person then. He had the powers to order a case of contempt suo mottu. He did not. He had the authority to order an investigation then and there and as the apex court is doing now in the 2G case, such an investigation could have been monitored by the court. He did nothing. It is possible that he knew the truth that Raja was not just ``a union minister’’ but one who had the courage to defy the Prime Minister too and decide on changing the rules in his ministry. Or he may belong to the league that believes that Raja being a Dalit must be allowed to do all that he wants and being a Dalit must render him immune from the law of the land; an argument that is peddled every time a Dalit wielding power is suspected of wrong doing and this was witnessed in case of Raja too.

But then, Justice Balakrishnan had refused to act, in defence of the majesty of the law and the courts, even on other occasions. He sought to brush aside documents showing wrong doing by Justice P.D.Dinakaran and did all that was possible to have him elevated to the Supreme Court. He refused to see the truth, as presented by a committee of judges, on the infamous Provident Fund scam involving High Court judges in Uttar Pradesh. Justice Gokhale, incidentally, was one of the judges who investigated into the scam and reported to Justice Balakrishnan. The former CJI did not see something rotten involving a particular judge in Chandigarh. Justice Balakrishnan, as Chief Justice of India, refused to part with information – as to whether the judges in the Supreme Court had filed their assets statement – under the RTI.

Justice Balakrishnan, as Chief Justice of India, instructed the Registry of the apex court to turn a litigant before the Delhi High Court against the order by the Chief Information Commissioner that the information whether judges had filed their assets statement be disclosed. When the Delhi High Court ordered in favour of the CIC, Justice Balakrishnan had the apex court to file an appeal. And when the appeal too got disposed of by a Full Bench of the Delhi High Court, Justice Balakrishnan ordered the Registrar General of the Supreme Court of India to file a Special Leave Petition against the order of the Delhi High Court before the Supreme Court of India.

The fact is that while abdicating from his duty when it came to protecting the majesty of the law and the courts in case of Raja, Justice Balakrishnan did act with promptness when it came to achieving the contrary. No wonder that he said what he did on December 8, 2010; that he did not know that the minister involved was Raja. But then, he seemed to have presumed as much impunity as he had until May 2010! Justice Gokhale’s access to the records in the CJI’s office as much as his own interest to clear the air of the ``erroneous impression’’ about his role in the matter has now brought the truth that Justice Balakrishnan knew that Raja was the minister allegedly involved as early as in July 2009. And yet, on December 8, 2010, the former Chief Justice of India specifically denied any knowledge of this.

It is not possible to reverse all that had happened. But then, we the people of India, have the right to have a man of integrity and standing at the helm in the NHRC. Past conduct may not be a ground for the removal of a member or the chairman according to the provisions of the Protection of Human Rights Act, 1993. But then, moral principles certainly have a mightier force. In any case, we came to know that Justice Balakrishnan’s statement on December 8, 2010 (that the identity of the minister was not disclosed to him), was not the truth only when Justice Gokhale presented his own case with documents and the least he can do now is to vacate his office at the NHRC.

Wednesday, December 15, 2010

Chidambaram on Migrants and Crime

Union Home Minister, P.Chidambaram spoke of illegal migrants into Delhi being the cause for lawlessness in the capital; he said this in the context of an incident of rape in the city. Chidambaram did not think before he spoke and in a sense revealed the mindset of a certain kind of people who want fancy buildings and malls in their city but will insist that those who build them shall not linger around and make the place dirty. I recall a hindi cinema that I watched some years ago – Dil Chahtha Hai – in which one does not come across a single frame showing slums or the poor people.

Well, even before the issue came to be debated on the national TV channels, Chidambaram simply said that he did not mean to identify any particular kind of migrants and this he did in response to criticism from Lalu Yadav and Mayawati. Even those who got angry with Chidambaram are not innocent when it comes to evicting the poor in the name of building world class cities. Recall Sanjay Gandhi, who along with Jagmohan, used bulldozers to demolish homes in the Turkman Gate area in Delhi and send the poor people who lived there to locations across the Yamuna during the emergency in 1975-77. Chidambaram’s remark was indeed a reflection of the fascist mind that thinks the poor and the hapless as criminals.

Well. One did not have to wait for too long after Chidambaram said what he did to demolish this framework that there is indeed a nexus between poverty and crime.

Just the day after, the CBI carried out raids in 34 places across the country including several homes and offices in Tamil Nadu. I must draw Chidambaram’s attention to the simple and harsh fact: That none of those fell in the category that he described as natural criminals. Niira Radia, according to records with the Government, was worth over Three Thousand Crores of rupees. I will not dare to write that figure in numerals because I do not know how many zeroes I should add to the 3 to make it Three Hundred Crores. Some others raided include journalists and a priest running a NGO. None of them can be put in the bracket that Chidambaram described as the cause of all trouble in Delhi.

But then, the Union Home Minister is not just another politician who can be let away for making such remarks. He is, after all, a known lawyer. He must have read the Constitution of India and its salient features while in the Madras Law College as a student and many times after that when he appeared in the various High Courts and in the Supreme Court in his life as a lawyer. And he is one of those who had sworn, many times, to do everything to protect the Constitution. That is part of the oath that he had taken as MP and as Minister several times since 1984.

Now, Article 19 of the Constitution clearly lays down that every citizen of this land, and this includes all those poor people who move away from their villages to work in the cities for low wages and live like animals in the tin sheds in construction sites, on the banks of drainage canals, under the flyovers and bridges and on the pavements and roadsides, to move across the country. And Article 21, that guarantees the right to life also defines life as not mere animal existence but a life with dignity.

Now, Chidambaram did acknowledge that the migrants into Delhi live in illegal colonies. In other words, there is violation of the Constitutional guarantee under Article 21 in the case of these people whom Chidambaram described as people naturally prone to crime. That would mean that Chidambaram and others like him who have sworn to uphold the Constitution are under a mandate to ensure that the migrants are either stopped from leaving their villages (and that will mean that their livelihood is ensured in the villages) or to ensure that those who end up in cities as migrants are housed in legal colonies.

The ball is in the Government’s court. And if money to build such legal colonies is an issue, ask Niira Radia for help! She will certainly tell you the means to make such money. The Home Ministry can engage her as a consultant on a project of this nature and ask her to lend her skills free. I am sure she will agree for such things!

Wednesday, December 01, 2010

Nira Raadia and the Tapes

France in May 1968 witnessed such tumult that the rulers were almost on their way out. Charles de Gaulle’s regime appeared to be brought down. And the leadership of the student movement of that time came from the professional classes. There were a number of journalists who played an important role in that movement in which the factory workers, fairly organised in trade unions, simply joined the tail.

I am provoked into recalling this in the aftermath of the revelations made by the Nira Raadia tapes. Well. I am not unaware of the wheeling-dealing culture among journalists. Nor am I among those who insist that the journalist must behave a stenographer. I do hold such journalists as Kuldip Nayar with lots of regard for the simple reason that he was a man of strong opinion and did not hide them.

The late Ram Nath Goenka was also an activist among the media barons. He is known to have teamed up with political leaders and orchestrated battles. Goenka’s guest house in New Delhi and his pent-house at the Express Towers in Mumbai were also hubs of political confabulations. The fact is that draft copies of the then President Zail Singh’s missive to the then Prime Minister Rajiv Gandhi (sometimes in 1986-87) were found in Goenka’s guest house in New Delhi and it led to a series of arrests, cases and finally the fall of Rajiv Gandhi!

I should also recall that Swaminathan Sadanand. His Free Press Journal was indeed the greatest of newspapers at a time between India’s independence and the first general elections. Sadanand was quite unabashed about his political agenda on a given day. Sadanand, indeed, took journalism to be a means to intervene in the political discourse and even set the agenda at that time. It is said that Sadanand, at the same time, would throw reporters out of their jobs when he found them playing games for politicians.

And we are now in times when senior editors of newspapers and TV channels have been caught in the act that is not even political conspiracy by any stretch of imagination. Barkha Dutt, in fact, was actually talking with Raadia and promising her of moving mountains to ensure that the telecom portfolio remained with the DMK’s A.Raja. She was, at times, advising Raadia and later taking instructions from Raadia towards this. Well. To be fair, Nira Raadia, now facing interrogation, did her job. She was engaged by two powerful corporates – one who sold opium some 150 years ago and is now dressed as a gentleman and another who sold opium two decades ago – to do their job.

That the corporates who paint the politician black with tar whenever they can do spend crores of money to make the politician rich is one end of the story that political India knew so well. It is also a known story that the corporates organise education tours where journalists covering the beat are wined and dined and also handed with goodies to write only good things about them. It is also known that the political leaders take care of the various needs of reporters and others in newspapers so that they get a good press. Such goodies range between direct cash transfers or in kind by way of material gifts on festive occasions and extend to subsidized housing sites for them. But the Raadia tapes have revealed an entirely new dimension and that is the dubious role that some journalists play in the nexus between the corporates and the politicians in order to loot the nation of its resources.

In less than a week between the days when Barkha Dutt was seen interrogating Jayanthi Natarajan on TV and with so much concern for the wealth of the nation, we are now told that she too played her own small role in ensuring that A.Raja remained Minister for Communications during the time when all the dirty deals in selling 2G Spectrum at prices far lower than the market value. And I shall not believe that Barkha Dutt was so naïve or committed so much to the cause of the DMK-Congress alliance that she did all of what she did and at Raadia’s behest as part of a political agenda. And if she is that naïve that she did not know why Raadia was asking her to do those things, she is not to be a journalist in the first place.

The point is Burkha Dutt knew what she was doing and in plain and simple language it was wheeling-dealing. And that is what Vir Sanghvi, another journalist, was caught doing. I am not too sure if the Raadia tapes that we know is all that we have. I will not be surprised if more such men and women are paraded in the days to come with their voices on the phone, striking deals and promising help have been taped. And there is no way these can be called as invasion into their privacy. They were not discussing wine and dishes; nor were they discussing costumes to be worn when ministers were sworn in. They were meddling with things in the democratic edifice and hence all that they did come under the public domain.

Well. I do not think that Section 124A of the Indian Penal Code should exist. But then, it does exist in our statutes and is invoked to hound someone like Arundati Roy. And since the provision exists in our penal code, I will demand that it is invoked against Raadia, Ratan Tata, Mukesh Ambani, Barkha Dutt and Vir Sanghvi for now. And if more names tumble out in the days to come, those others too be hauled and sent up to trial under Section 124 A of the Indian Penal Code.