Many Indian laws do not reflect modern and enlightened concepts of justice and require major revision.
The recent campaign in support of Dr. Binayak Sen has received much publicity. The mainstream media has enunciated his cause and dissected the evidence, conviction and judgment. Amnesty International argued that the case violated international standards for a fair trial. While Dr. Sen's conviction has received much attention, there is a need to foreground the context and to enunciate the larger issues facing the nation.
History and precedent: The ancient history of the Indian subcontinent is well recognised. However, the concept of an Indian nation state is much more recent. Diversity of traditions, cultural dissimilarity, religious heterogeneity, regional disparity and geographical variations divided the sub-continent. However, antipathy to British colonisation bound its diverse peoples and its numerous provinces, regions and kingdoms. The freedom struggle actually defined the nation.
Independent India is just over 60 years old. Its conceptualisation as a nation state is contemporary. Its federal structure and democracy are actually in their infancy. While its Constitution attempted to put together a broad framework of principles for an egalitarian society, its new rulers retained and continued many colonial traditions. The independence movement, led by the upper castes, the rich and landed gentry, morphed into its ruling class. All power over common and forestland was transferred from the Crown to the Indian government. The Indian Penal Code and other laws used by the British to rule the land were prescribed as statutes for the new India. The 19th century concept of sedition, employed by colonisers to control dissension and rebellion among the natives, is now employed to stifle legitimate debate and valid dissent among its citizens.
Developmental discord: The year 1991 was a watershed in India's economic history. Liberalisation of its economy resulted in an increase in the country's wealth and Gross Domestic Product. Nevertheless, the realisation that India needed to exploit its enormous natural resources to achieve global superpower status is not lost on its rulers and their corporate partners. The urgent need to clear forestland for mines and factories and to dam rivers to increase electrical power and water resources is obvious. The commons had to be exploited for national progress. India's indigenous peoples, the Adivasis and their ancestral lands, which had no recognised, registered and individual titles, were easy targets for displacement and acquisition. Such people, who were already marginalised with rates of malnutrition suggestive of famine, have had to pay the price for the country's development. The need for compensation and rehabilitation of livelihoods were minor irritants, best ignored. The structural violence against the poor and rural folk was dismissed as inconsequential. The armed rebellion by the Maoists is only viewed as a law and order problem. The plight of innocent civilians caught in security operations is considered unimportant in the national agenda. Human rights violations seem to be a small price to pay for a patriotic cause.
Simplistic world-views: Human rights and socialism tend to be bad words in the capitalist-development schema, as is dissent in the nationalist discourse. Simplistic world-views equate alternative perspectives and legitimate dissent as anti-national. Nationalism with its “You are either for us or against us” philosophy dismisses the discrimination of those already marginalised. Gross violations of human rights are considered as necessary evils. Human rights workers are hounded for voicing genuine concerns. The perception that those who fight for human rights have sold out to militancy is a common emotional response. Ancient statutes are employed to reign in resistance to the nationalist and development agenda.
Requiring review: Many 19th century precedents, traditions and laws in current use need serious reconsideration. Perceived threats to national security are often used to limit many freedoms guaranteed in civilised societies. Freedom of speech is often a casualty and tends to get stifled in times of war. Gag orders and prosecutions have been launched for genuine concerns, even in times of peace. The charge of sedition continues to be used in India to stifle dissent and disagreement. The use of such baggage reflects insecurity in a resurgent nation.
Many hundreds of thousands of people are currently in jail in India for minor and bailable offences. Their lack of access to legal advice and the slow and cumbersome judicial systems keep them confined for long periods and deprive them of their human rights, when bail is a valid alternative.
Studies, which have examined Supreme Court judgments on the death penalty, suggest the abuse of law and procedures, and of arbitrariness and inconsistencies in the trial, investigation, sentencing and appeal in capital cases. Contrary to beliefs that it is only applied in the rarest of rare cases, the death penalty is used disproportionately against ethnic minorities, the poor, the marginalised and the disadvantaged, all of which are factors that argue for its abolition.
India has yet to ratify the U.N. Convention Against Torture, legislate against inhuman and degrading treatment, and enforce it. Laws, which grant de facto impunity to the security forces are often prone to human rights violations and result in a complete lack of accountability. The Armed Forces Special Powers Act (1958), the Unlawful Activities Prevention Act (1967), the Chhattisgarh Special Public Security Act (2006) and sections of the Indian Penal Code need serious review. Deaths of “suspected terrorists” in staged encounters with the police are common in many parts of the country. National security is often employed to cover up major human rights violations. The security personnel involved in such extrajudicial killings are rewarded rather than punished.
The executive and the judiciary are often on the same side of the development argument and sing from the same sheet. The inconsistencies and flawed interpretations of judgments by the lower judiciary demand a serious review of the process of training and audit. Such standardisation is mandatory to achieve a semblance of fairness. Issues of political pressure and corruption are too serious to be wished away and demand urgent solutions.
The practice-theory gap: It is generally believed that theory drives practice. This is a simplistic interpretation of ground realities. In fact, practice defines theory. The distinction between justice and law is an example. Justice is an agreed concept and value, which is implemented through law. However, laws often fall short of delivering justice and need to be constantly interpreted and rewritten in order to provide justice. Practice constantly engages with theory and retools it. It cites theory in specific contexts, modulating, redirecting, and even remaking it. The demand for justice brings a case before the law; this demand puts the law at issue. The demand for justice can exceed the law, bring new issues before it and consequently require an extension or a reinterpretation of it. Justice, then, renews the law and extends its hold. The law can never escape from this demand for justice since it is a demand that can never be fully met.
The demands of the new era, the different context and the call of justice, mandate a creative citing of the law in relation to the questions that present before it. Judges may opt to close off the call of justice, and renew the rule of the law in relation to the new question that is presented. On the other hand, they may take up the challenge and rethink, remake and cite the law as best as they can in a way that measures up to the call of justice. When judicial and legal practice is simply understood as an application of theory, its ability to renew and remake theory — to render it more accountable to the present, is undermined. Legal and judicial practice needs to cite and remake theory, and to be aware of its responsibility to do so in situations where laws fall short of the call for justice.
The way forward: Dr. Sen's case is but the tip of the iceberg. Many innocents languish in jail. Others serve much time as under-trial prisoners awaiting judicial review. Our slow, cumbersome and expensive judicial system needs urgent reform. Does the different context of independent India need more enlightened laws? Does our current legal and judicial practice reflect our concepts and values of justice? Do our standards of justice reflect the new resurgent India? Or are we prisoners of our colonial and insecure past? Can our legal practice change the principles of our jurisprudence? Will our experience give us the clarity and confidence to break out of the straightjackets of our current theory and practice?
The judiciary needs to reconsider laws, which conflict with fundamental rights guaranteed in the Constitution. The legislatures should fashion enlightened statutes for the 21st century. India needs to seriously reconsider its legal and judicial practice and jurisprudence.
(Professor K.S. Jacob is on the faculty of the Christian Medical College, Vellore. The views expressed are personal and do not reflect those of any institution or organisation.)
Keywords: Binayak Sen case