(13 January 2011, Special to ‘Financial Chronicle’)

by Praful Bidwai

Thirtyfive years after it passed a bad human rights judgment during the Emergency, the Supreme Court has finally acknowledged its error. A Court bench has pronounced the 4:1 majority verdict in the ADM Jabalpur case as wrong in ruling that during Emergency rule, nobody can move a habeas corpus petition before a High Court on the ground that detention is illegal or mala fide. Habeas corpus (literally, having a body) is a fundamental right in any minimally civilised society, which empowers a court to order the police to produce a wrongly detained person to ensure that no harm is caused to him/her. Such an explicit correction was long overdue.

The recent verdict is a reminder of how abjectly India’s institutions got compromised and corrupted during the Emergency. Many people who could have resisted authoritarianism or despotism caved in. Among them were the captains of Indian industry. As has been famously said, when asked to bend, they crawled—presumably because the government had damaging evidence against many on tax evasion, bribery or illegal funds transfers abroad, and could not countenance an even mildly adversarial relationship with the government.

Industrialists have long ceased to have such fears. They have seen consistently business-friendly regimes in power for two decades. The “tough” Foreign Exchange Regulation Act has been abolished. Tax rates have fallen. And a new business-politics-bureaucracy nexus has developed. Political leaders now bend over backwards to please industrialists and transfer valuable natural resources to them at throwaway prices, including land, minerals and airwaves.

So it’s especially dismaying that business groups and associations are silent on issues of broad social or political concern, with major implications for the rule of law in India. A telling example is the atrocious judgment sentencing public health and civil liberties activist Binayak Sen to life imprisonment on what is clearly a trivial charge, that of carrying letters from an undertrial prisoner not yet proved to be an extremist. This was falsely equated with sedition, or spreading disaffection against the state, without an iota of evidence that it led to a single act of violence, leave alone a threat to public order. The judgment blatantly violates the Supreme Court’s restrictive interpretation of sedition, which must be in consonance with the right to free expression. Opposing the government, or calling for its overthrow, isn’t sedition—unless that’s accompanied by actual, effective instigation to violence.

The case against Sen, businessman (Piyush Guha), and alleged extremist (undertrial Narayan Sanyal), was filed on Indian Penal Code charges on sedition and conspiracy for sedition, and other laws. Judge BP Verma needed to establish beyond reasonable doubt that they indulged in seditious activities or conspired to abet them. He failed to do so.

The entire case hinged on the testimony of cloth merchant Anil Kumar Singh who claimed he had witnessed the seizure from Guha of Sanyal’s letters. Singh claimed to have overheard a conversation between the police and Guha, while Guha was in their custody, in which he said Sen gave him the letters to be carried to Maoist leaders. Statements made in police custody are not admissible as evidence. Singh couldn’t have known if the letters were planted on Guha.

Verma made much of Sen’s 33 meetings with Sanyal in his capacity as a People’s Union of Civil Liberties office-bearer. Several jail officials testified that these were strictly supervised in the jailor’s room. Based on my September 2007 meeting with Sen, it’s hard to believe that any letters could have been smuggled out.

Judge Verma accepted and forcibly reconciled two contradictory police accounts of the place of Guha’s arrest in May 7, 2007, calling these a “typological error”. This showed a clear pro-police bias. The prosecutor concluded his argument with a “master-stroke”—an email addressed to “Fernandes of the ISI”. He triumphantly declared: We don’t know who “Fernandes” is, but we know the ISI is Pakistan’s Inter-Services Intelligence agency. The “Fernandes” is Walter Fernandes, a former director of the Delhi-based, Jesuit, Indian Social Institute.

Verma’s verdict has disgraced India’s judicial system and damaged the claim that rule of law prevails in India. This should worry all citizens. It’s totally unacceptable that our judicial tribunals behave like kangaroo courts worthy only of Banana Republics and that the wide-of-the-mark and desperately militarist official anti-Maoist strategy is causing unprecedented human rights abuses. Governments in the tribal belt are bent upon erasing all distinctions between hardcore Maoists, their sympathisers, the parliamentary Communist parties, Gandhians, civil liberties activists, progressive intellectuals, and even health workers.

This will undermine India’s global image, just as the Nobel Peace Prize controversy has damaged China’s. Yet, our national-level chambers of commerce have maintained an ugly silence on the collapse of the rule of law signified by the Sen case. They had refused to comment 20 years ago on the assassination of the great trade unionist and social activist Shankar Guha Niyogi, which was organised by the businessmen of Durg-Bhilai and Raipur. Such complicity in violent crime has given Indian business a bad global and national reputation as a parochial group that cannot look beyond its nose. This will plummet further unless business leaders speak out against Sen’s conviction.