Indian justice: punishment by trial?

High-profile human rights activist gets life for treason, exposing cracks in justice system.

By Jason Overdorf
(GlobalPost - December 31, 2010)

NEW DELHI, India — Consider the following scenario: A much-admired man points out gross human rights violations committed against tribal peoples — including alleged rapes, murders, etc. But the state consistently seeks to cover up the incidents this man exposes, and instead uses a colonial-era law against free speech to sentence him to life in prison.

If this were China and its Nobel Prize-winning dissident Liu Xiaobo, it would come as no surprise. But, brace yourself, this is cuddly India we're talking about.

One of India's biggest selling points, particularly in contrast to China, has been its progressive attitude toward human rights and its commitment to the rule of law.

But the conviction and subsequent sentencing of human rights activist Binayak Sen — and the similar sedition charges leveled against novelist Arundhati Roy and several other outspoken Indians this year — show that India's commitment to democracy is more fragile than anyone believed.

The question now is, will it be enough to threaten India's image as a progressive, democracy-loving state?

Here's a play-by-play: On Christmas Eve, a lower court in the eastern state of Chhattisgarh sentenced Sen, a celebrated pediatrician and activist, to life in prison for his alleged links to the Maoist revolutionaries.

Sen and his supporters say he was targeted for exposing the state's involvement in the large-scale clearing of villages. In 2005, Sen led an investigation that pegged so-called economic development — in the form of Chhattisgarh's booming mining industry — as the culprit in driving indigenous tribes off their ancestral lands and turning them into beggars.

After Sen received his life sentence and the judgment was made public, outrage began mounting almost immediately among India's intellectual circles. Some asserted that Sen was railroaded through the system as payback for exposing alleged rape and murder committed in the name of the government.

Many critics said his treatment once again exposed the weaknesses in India's legal system. Corruption and politically motivated trials, critics said, have now joined incompetence and sloth to make a travesty of justice.

"The judge has become a willing instrument of the state to victimize people who are raising their voices against [its] human rights abuses," said Supreme Court lawyer Prashant Bhushan. "It's not merely a gross miscarriage of justice, it's outrageous."

So, what's the impact going forward?

The court decision has further polarized an India already deeply divided over the path its economic development should take. One side says develop at all costs, even if that means stealing land and giving it to mining companies who destroy the environment and ravage indigenous cultures. The other side says that further subverting the rule of law in favor of crony capitalism promises a disastrous future.

Already, street protests have mushroomed across India and associations of every stripe — including police — have condemned the verdict. But even if it is eventually overturned by a higher court, the apparent misuse of the legal system as a political tool could have broader implications.

Indian students, teachers and activists protest in New Delhi against Binayak Sen's life sentence, Dec. 27, 2010. (Raveendran/AFP/Getty Images)
"The whole judiciary system is a mess at so many levels — delays, process, sanctity of evidence — and [a judgment like this one] really shows you how vulnerable it is," said Pratap Bhanu Mehta, who heads the Center for Policy Research, a New Delhi-based think tank.

Some of those problems are notorious. An overburdened system has created a vicious cycle of continuances, appeals and a mounting backlog that some estimate will take hundreds of years to clear. Petty corruption — fees to access files and the like — is ubiquitous, and hardly a day goes by without a report of a witness recanting his testimony when challenged over lack of evidence.

But in recent years allegations of higher level corruption have been given seeming validity by the supreme court's refusal to make judges' assets subject to public scrutiny under the Right to Information Act (RTI).

Increasingly, high-profile judgments like the Allahabad High Court's decision to divide into three parts the disputed Ayodhya site [2] of the destroyed Babri Mosque and the decision to reopen the case and dole out a harsher sentence to the policeman accused of molesting Ruchika Girhotra have showed that India's courts are all too willing to ignore the letter of the law when it is expedient or popular to do so.

More and more cases like Sen's have demonstrated that the legal system's other deep flaws make it ideally suited for abuse for political, or even criminal, ends.

"We often say punishment should be after due process," said Bhanu Mehta. "In India, due process can be the punishment."

That doesn't make India look good in the eyes of investors. An unknown wag once quipped that an Indian civil suit was the closest one could get to experiencing eternity. A simple property dispute — such as evicting a delinquent tenant — can take decades of monthly court appearances to resolve. And corporations have by and large dismissed the Indian legal system as a means of enforcing contracts, writing in clauses that mandate arbitration or litigation in foreign courts.

But for the Indian people, who must depend on the courts to protect their rights and enforce their laws, it's chilling.

The Chhattisgarh court found Sen guilty of two counts of sedition and conspiracy based on charges that he carried letters from a jailed Maoist leader to his comrades in the field and opened a bank account on behalf of another rebel.

But because the evidence presented by the prosecution hinged largely on circular reasoning — proof of links to people whom the police claim are Maoists but who themselves have not been convicted, for instance, and the letters that Sen allegedly carried contain nothing incriminating — critics say that it's nothing more than another attempt to silence peaceful support for the tribal people caught between the Maoists and the state.

Most ironic of all, Sen earned his life sentence for the same crime — sedition — that India's British colonizers used against Gandhi and other freedom fighters.

Typical of persecution laws, the storied history of the supposed crime gives its perpetrator an added aura of legitimacy, much like China's old standby, "exposing state secrets" — which implicitly acknowledges that the dissidents jailed for it speak the truth.

Worse than that, to apply it to Sen's case, legal experts say the Chhattisgarh district judge had to ignore a landmark supreme court ruling that mandated that sedition could only be allowed to curb free speech when there is a direct incitement to violence or serious public disorder.

"It's a hideous judgment; it's a hideous case," said Ajai Sahni, executive director of the New Delhi-based Institute for Conflict Management, which researches terrorism and other Indian security concerns. "They had no business taking this to court in the first place. They had no evidence."

If there's any silver lining, it can be found in the encouragingly unified chorus against the verdict. However, most of the criticism has hinged on the claims that Sen is a good man, rather than a clearheaded assessment of the evidence and his legal rights.

And Sen himself — who was jailed for two years without bail after his arrest in 2007 — must be growing tired of all the support. In 2008, the cause celebre languished in jail while 22 Nobel winners lobbied for his release after he was chosen to receive the prestigious Jonathan Mann Award for his efforts to reduce the infant mortality rate and deaths from diarrhea. Who's to say today's protests will be any different?

"What you are doing right now is using what I describe as punishment by trial," said Sahni. "If he is innocent, how are you ever going to restore those years to this man? And if he's guilty, you should have brought the evidence against him. It's utterly disgraceful."

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