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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     10 January 2011

IF GUILTY, BLAME THE JUDGE!

That Ilina Sen, wife of doctor-activist Binayak Sen, should trash the justice system is eerily similar to the credo of the Maoists who reject democracy and republicanism and seek to subvert the Indian state and overthrow its elected legitimate Government. Her ideology shows through the veneer of sophistry

It required just one unfavourable verdict — and that too from a lower court — for the family and friends of convicted doctor-activist Binayak Sen to launch a bitter tirade against the Indian judiciary. Until the other day they were confident that the legal system would give them justice. For a number of people, the verdict of the Additional Sessions Court in Chhattisgarh was indeed justice; for Binayak Sen and his sympathisers it was travesty of that. The matter will now be debated in the High Court — where it has reached, and, if necessary, in the Supreme Court as well. But already the wife of the high-profile activist, sentenced for life on a variety of charges including sedition, has declared her loss of faith in the judiciary. So upset was she that she announced her desire to seek asylum in a "more democratic and liberal country", but retracted the statement a few days later.

That Ms Ilina Sen should not have trust in one of the pillars of Indian democracy is eerily similar to the credo of the Maoists who reject the Indian establishment and seek to replace it through their brand of violence. The Red ultras also have contempt for the political and the judicial system. But the Sens have claimed to be part of the mainstream, working for the welfare of tribals, and so they should not have succumbed to the extremist conclusions. Damning the Chhattisgarh administrative and judicial mechanism, she now says her husband should have demanded that the trial be conducted outside that State. If she believes that would have offered her a better chance of justice, it is still not late to resort to that move. But no, like the Maoists she too concludes that it is useless to depend on a system that has, despite its faults, delivered for six decades since independence. The appeal to the High Court, one would presume from her point of view, is one of just going through the motions.

It remains a mystery why she expressed a desire to seek asylum. There have been no reported threats to her — although she claims to fear for her life — nor has she exhausted all the means of justice and arrived at a dead end where staying back would entail a dangerous existence. Incidentally, she forgets that the Maoists, who have been termed as among the country's greatest threats to internal security, continue to flourish, though occasionally some get eliminated. If they can fearlessly continue, why should Ms Sen, who self-admittedly has done nothing wrong, be worried? Of course, innocent people do get trapped, harassed, tortured and even prosecuted at times in the country, and that is unfortunate. But there are mechanisms to address such excesses, and they have been applied to correct wrongs in several instances. In any case, if every 'wronged' person comes to believe that asylum is the only way out, there would be an exodus from this country — and from any other nation as well, since even the most liberal and democratic country suffers from drawbacks.

Perhaps the asylum declaration was designed to embarrass the country before the rest of the world that has been lapping up the Binayak Sen case. There are enough human rights activists across the globe to project her despair as a monumental failing of rights record in India. With such a network of well-wishers, Ms Sen can well become an international celebrity at the cost of India's image. One wonders, though, which "more liberal democratic country" she had planned to settle down in. The US, the UK? Well, look at how they have dealt with Mr Julian Assange of WikiLeaks, who had the courage to publish classified material that has shaken several nations. She had the option of the Gulf States, one of which has given refuge to noted painter MF Hussain, who fled India because he had no "creative freedom" to perform here. One needs to be an extraordinary person to market the idea that a Gulf nation offers more creative freedom than India.

Having ridiculed the judge who convicted Binayak Sen, the latter's friends have turned their attention to the "archaic" provisions dealing with sedition and conspiracy against the Government that nailed Binayak Sen. There have been of late a number of articles slamming Section 124(A) of the Indian Penal Code on the ground that it had been promulgated by the British regime to stifle nationalist sentiments, and thus had no place in present times. While its continuation is a matter of healthy debate, it must be remembered that the country did adopt the provision in 1951 after it had been thoroughly discussed by our law makers. Their relevance was felt even 60 years ago; surely now, when the country is faced with several threats to internal security, they are not out of fashion.


Incidentally, the law on sedition was upheld by the Supreme Court in the landmark Kedarnath Singh versus State of Bihar case in 1962 — the very same case that is being parroted by sympathisers of the convicted activist to claim that Binayak Sen had been wronged. The apex court had said that under provisions of 124(A) that deal with sedition, there could be reasonable restrictions to one's freedom of speech as guaranteed by Article 19 of the Constitution. A Constitution Bench observed that the provisions "impose restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interests of public order and within the ambit of permissible legislative interference with that fundamental right."

Elaborating on the apparent contradiction between the sedition law and the constitutional right to free speech or expression, the Bench had stated, "It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction. The provisions of the sections read as a whole… make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency to create disorder or disturbance of public peace by resort to violence."

 

All through the verdict, the learned justices took pains to explain why provisions of the law should not be read in isolation but should be considered in totality. In the Binayak Sen case, therefore, harping just on Article 19 that provides freedom of speech and expression without taking into account the restrictive measures of the constitutionally valid Section 124(A), is bound to lead to lopsided conclusions.

 



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 4 Replies

Mr Sreejit (seek4sridhar@yahoo.com)     10 January 2011

Exceptional and Unchallengable comments and impressions of Shri. R. K. Makkad is well taken with a small foot note that India had great social Reformers and Leaders who really led the people in right direction. Now the pathetic condition of mother India is it is led my crooked, cunning, self-centered unworthy humanbeings who bot only bend but break laws in their material favour.

 

What India and Indians need this hour is REBELLISH REFORMERS who challnge to quash handicapped laws and court procedures, make target oriented process, with JUSTICE and RATIONALITY as ONLY objectives.

 

When 90 % of us know that the Indsian Legal system is mundane and unworthy a system at the hands if its Influential FEW, wny not the HONEST legends amoung LAW people come forward to make a REVOLUTION for the IMMUNE AND INNOCENT LAY-MAN IF Mother India.

 

Present India is overpowered by Poisonous People in all walks of life, be it education of law or defence of administration. We are over populated, rather polluted by this sh*ts alaround.

 

 

WE NEED VIOLENT SOCIAL REFORMERS IN NUMBERS, JUST LIKE RAJARAM MOHAN ROY.

 

British period is considerably a golden one when humanity, sacrifice, fellow-feeling are admired and appreciated which wrought us freedom. Now we need INTERNAL FREEDON.

VANDEMATARAM - JAIHIND -  SEEK4SRIDHAR@YAHOO.COM

N.K.Assumi (Advocate)     11 January 2011

If the British raj caused Injustice leading to the people revolution What are we doing today? Today the systems is such that it is worst than the Colonial  Rule, but we have lost that spirit and the courage to revolt" We can only sing the song "Que sara sara what ever will be will be, the future not ours to say Que sara sara what will be will be:" As far as the Judges are concerned our Judicial Jurisprudence systems is such that the great Judge can decide rightly or wrongly" full and absolute freedom is given to them to decide as they like and the worst judgement delivered by the Judge will be elevated by the constitutional systems: this is what we have inherited a legacy handed down through the ages. We the People of  Indians all look like a man coming out from a comic book.:

2 Like

Arup (UNEMPLOYED)     11 January 2011

thanks to mr assumi.

 

i am having the same opinion.

 

i do not like the undemocratic attitude of nakshals, but human rights should not be ignored to any citigen of india. the police; the government; the judge must have to work within this frame.

1 Like

Mr Sreejit (seek4sridhar@yahoo.com)     11 January 2011

WISHES AND GREETINGS TO ALL ACTIVISTS, VETERANS AND FRESHERS LIKE ME!!

 

Whatever be the theme, weather BURNING or OF COLD WAR, some basic TRANSACTION PRINCIPLES are amiss in current SYSTEM. SYSTERM I mean anything and everything we easliy blame as such, be it inclusive or exclusive of us.

for instance, If any one of us donot reach office or return back home on time there is somebody to get concerned. That is officially termed 'RESPONSIBILITY' which translates to TURN AROUND TIME' shortly 'TAT' Whenever any responsibility is fixed on any activity TAT is implied. If this be the scenario where goes the TAT for legal/judicial procedure, police investigations, Trial-sessions, executions, implementations. All these implies that THESE are the zones where TAT is not applicable which means there is no RESPONSIBILITY.

 

Now we come to the start of the topic. The SYSTEM we mean. Willingly or Unwillingly we happen to be part of the system we praise of critisize. At tiems of uncomfortness we disown ourown membership of this SYSTEM and feel us aloof and ABOVE THE EARTH syndrome and be the BEST CRITIC to comment and even call it absurd.

 

The ground reality is UNLESS the WE, the members of the system realise, rationalise, REBEL-TO-REFORM, the lame system will be as such timelessly.

 

Any particle of job/activity/process/system need to be divided into its iota and TAT be fixed parallelly along with the reporting/controlling matrix.

 

Now can we just refer the term 'ACCOUNTABILITY' which reads parallel but at micro level addresses the INDIVDUAL LEVEL of TAT COMMITTMENT. Now it is time to conclude my lecture, that all reforming activity be focussed on the MASS COMMON GOOD, here it means THE JUSTICE, (Please DONOT mistake this with the term 'JISTICE' what BLACK COATED ROBBERS shout in front of 'A BLIND IDOL OF ANGEL OF JUSTICE  at buildings called COURTS) Justice, I mean, in absolute and holistic terms. Factually each one of us is biased when it comes to our oun interests and as such rarely few can qualify to call themself as ADVOCATES OF JUSTICE. Judgement can be described as WHAT A JUDGE DELIVERS. And the mundane process of Indian Law always PROVIDES for an APPEAL which opens the secret that the JUDGE under its system are not PILFER_PROOF and the victim is confessed with his right to call him so and should have all financial/moral/economical/social/mental strength to ESCALLATE not to ONE STEP ABOVE, but till IT COMES TO THE ULTIMATE APEX STEP. What else you can term a system which is CASCADED WITH INTERNAL LACUNAS.

When we analyse Indian Judicial system in form of science, there is no need for an ACID TEST to fail it. It fails at the entrance of lab itself.

And WE the components of the SYSTEM live or dead with it and shamefully even criticise it at our high pitch. In modern Democratic world few brave REVOLUTIONISTS are termed ANTI-SOCIAL. Agreed for arguement sake. If it is so are they born ANTI-SOCIAL and always wish to spend their life under bunkers and land-mines?

 

These are the creatures, born similar to us in all ways to parents who again are similar to our parents, who's ambition is always HIGH, who are PUSHED to that cruel level by such mechanism/machinery call it legal/judicial/politics/autocracy/administration/corruption/discrimination/economic/social/illegal/adulteration, and what not, and at one angle given an option of pleasent life or a painful one, I bet none of such termed ACTIVIST will opt the later.

 

2011 SHOULD USHER IN AN ERA OF MODERN HUMAN REVOLUTION THAT RECOGNISES THE LACUNAS INSIDE AND OUTSIDE THE SYSTEM AND DESTROY IT IN TOTO.

 

VANDEMATARAM-JAIHIND- seek4sridhar@yahoo.com 9047028232&9830928232@vodafone.com


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