The Curious Case of Dr. Binayak Sen's conviction on Sedition

One of the things, I really do not appreciate among the intelligentsia, whether in India or abroad, is their propensity to see things only through their rose-tinted glasses and to denounce all contrarian views as fascist or rightist .... What really makes me go mad in the brain and red in the face is the fact that these so-called mandarins of morality are often found to be appeasing to a fault to certain sections of society and critical to a detail to the others.... This is where my path diverges from these mandarins of morality for I believe that there should be the same set of laws for both the parties ... that it's important not only that Caesar and his wife should be above the law but also the entire retinue that associates itself with Caesar!

Still, there are times, when my own stand is found to be very much in sync with these custodians of public morality.... Contradictory? Well, I am quite a bundle of contradictions and so lately on one issue I have found myself closing ranks with the intelligentsia to a very large extent ... the case is that of the life-imprisonment imposed on Dr. Binayak Sen on charges of sedition.

This is indeed a curious case and a curious sentence for a crime under a curious charge... the charge of Sedition! And specially so, in a country like ours which got independence after a long battle wherein many of our national leaders like Bal Gangadhar Tilak were time again accused and imprisoned on the grounds of Sedition!

The question that I seem to be asking myself regularly these days is a simple one ... does a charge of sedition actually deserve merit in a democratic country and if yes, under what circumstances can the charge be made? And the more basic question is, does the concept of democracy allow for the charge of Sedition .... and finally, was the sentence proportionate to the crime, if any? Being a common man, I can only speak my heart on the last part, the learned judges do have much more material in connection with the case than a lay person like me to discuss the subtleties of the case, however I do think being an aware citizen of India, I can and should have a point of thought on the concept of Sedition....

The Indian constitution is a remarkable piece of art, in that it incorporates the best of all constitutions and provides for the loopholes in each and every constitution on Earth... Indeed, Indian ingenuity has to be appreciated that it can provide such a constitution and then tear it to shreds too ....

Para III of the Preamble to our Constitution underlines the Fundamental Rights of the Citizens of India.... Here I will not be concentrating on all the different rights including those enshrined in Articles 15-18 for in the current discussion, the important part of Part III that needs to be discussed, is enshrined in the Articles 19, 20, 21 and 22 ... in totality, these 4 articles give the citizenry of India the following rights:

• Freedom of speech and expression (although the phrase, "freedom of press" has not been explicitly defined, freedom of expression for all intent and purpose includes freedom of press.)
• Freedom to assemble peacefully without arms
• Freedom to form associations or unions
• Freedom to move freely throughout the territory of India
• Freedom to reside and settle in any part of the territory of India (This article does have a safeguard for the Tribal Regions, by restricting non-tribals from purchasing or moving into tribal lands. This has been done to protect them from exploitation of any sort. Furthermore, Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.)
• Freedom to practice any profession or to carry on any occupation, trade or business.

In addition to the above, the constitution also guarantees the citizenry the fundamental right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and can be enforced. They are as follows:

• Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time.
• Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person's life and personal liberty can only be disputed if that person has committed a crime.
• Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours.

None of these rights are absolute; the constitution imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India, and also in the interest of morality and public order, the government can impose restrictions on these rights. However, interestingly the right to life and personal liberty cannot be suspended, even in an emergency.

Let us now try and define Sedition: In simple words, Sedition is the stirring up of people against the government in power and is very much different from the much more intense word, Treason that means levying a war against the state.So if you look at it closely, Sedition is any overt act of a citizen or an organized group that not only criticizes the government of the day but also exhorts that people to start thinking on similar lines.... In the Indian scheme of things, there is a specific law against Sedition ... Sec124A of the IPC.

Sec 124A states, "Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”

This brings us to an interesting point.... .the concept of Sedition as outlined above can be applied in equal measures to anyone in the state, a leader of an opposition party who may have an axe to grind against the ruling party can call on to the people with a stated objective of getting the people to change the government... should that be considered as Sedition? If yes, does that not sit heavily on the rights as enshrined by Para III of the Indian Constitution?

Secondly, if you look at Section 124A, it can be argued that the spirit of the law goes very much against the right to life and liberty as enshrined in Articles 20 and 21 ... to the letter of the law, they may be different but if the person on the basis of a speech or an action is construed to be acting in defiance of a government in power and arrested,  and his fundamental rights abrogated, in the interest of the nation or public mortality, then without a shred of doubt, even his right to life and liberty in endangered, even before the court of law can take due course and find out if the accused in indeed a perpetrator of dissatisfaction or a victim of government mores.... this defeats the very purpose of the founding fathers of the Indian Constitution!

I think a democracy, as defined by Abe Lincoln, is the government of the people, by the people and for the people and so a democracy can have varied viewpoints and there need not be a consensus to the differences within. If we get to a stage where a criticism to the government can constitute a case of sedition, isn't it the end of democracy as we know it? To take things to the conclusive end, this is a draconian act that can be used by the opponents of Democracy to stifle every voice of dissent .... If Sedition is allowed to be a part and parcel of the democratic process, wherein constructive criticism can be put into the garb of Sedition, time if not far when a welfare state would be converted into a police state for lack of space for political dissent and opposition.

I do not advocate that Sedition should be per se removed from the annals of Indian legal code but I do firmly believe that in a democratic setup, the concept of Sedition has outlived it's requirement.... It can only be brought to the light only and only in times of emergency, and even then should be used only for acts that challenge the independence, sovereignty and integrity of the country.... such a law does not have any need in a society that's democratic, mature and has a stomach for digesting dissent.... which is the most notable power in a democratic setup.... else what Sahir wrote for a fascist state can be true of India as well:

Bediyaan Aaj Bhi Pehney Hai Azeezaan-E-Watan
Farq Itna Hai Ki Zanjeer Mein Aawaaz Nahin Hai....

The handcuffs are still bound on the hands of the patriots of my land,
the only difference being, they don't scream their presence like in the past (Transliteration)

Where is the Alternative?

Let me start off today by clearly stating that I am neither a Congressman nor a Comrade nor a revisionist though at different phases of my life, I have been associated with or fraternized with people who belong to any one of the 3 blocs that currently seem to hold in India - the Left, the Right and the Left-of-Centre.......

Yes..... I did vote for the Congress in 2009 but if the truth be told, I voted not for the Congress but for Manmohan Singh and Sonia Gandhi, had it been 2004, I would have still done the same ..... but had it been 1999, I would have voted firmly for Atal Bihari Vajpayee and his team ..... so, if you look closely, I have never voted for the party, but for the personality which is an anachronism, considering that we live in a parliamentary democracy and not a presidential one ... And I am not alone, a large number of people in this great country do the same - others of course vote on religious and castiest considerations....

The reason behind this anachronism is very simple.... there is nothing on paper and manifesto that differentiates the two largest parties in the country! On the face of it, both the Congress and the BJP are complete opposites of each other - the first, a symbol of minority appeasement in the form of secularism, the other reactionary to the principles of secularism.... the first, an unabashed speaker of crony populism, the second, a party close to the moneyed ..... but if you scratch beyond the surface, the one thing that strikes you is this simple fact, that beyond all the external posturing, all the blatant attempts at vote-bank engineering, both the right and the left-of-centre are one and the same.... Whether it's issues of foreign policy, whether it's issues of corporate and social paradigms, both the parties speak in the same language - the words used or phrases coined maybe different but the reality remains that the message is the same ..... Indeed, if the manifestos of the two parties could be exchanged and written on a simple parchment, minus the ideological posturing of Aam Aadmi or Ram Janambhoomi, the chances would be that none would be a bit wiser of which manifesto stands for which party -  so alike are they in thought or deed!

This is a sad point of reference - for the BJP at one time had a chance to be something different - they had a different agenda, they had a different focus, they had a different point of engagement - people would argue that their religious agenda had no place in a secular country like India ... that may be true but a Conservative space was there's for the taking..... this would have helped the country in many ways - the birth of a true Conservative Party would have pushed the dominant Congress to the Centre more strongly or even made a Liberal Party of it ... thus giving ample choices to the populace at large.... The failure of BJP to hold on to that space and it's continuous efforts to define it's position in religious terms led to the great failure of the 1990s. Today, the competition is not between two different strands of thought, but between two different hues of the same strand - it's either hawk or kite .... hard or soft ..... but increasingly the same!

The only party that seems to have a different opinion is the Communist bloc parties but these parties have not stopped living in the heydays of the 1970s. How can a citizen of 2010 vote for parties, that though different, still are averse to change or even to keep in single step with the changing times? The Land reform policies, the Social Security Act may have a large Communist footprint to the text but the fact remains that the Left has failed the nation by not watching it's step and in the process has marginalized it's own existence in the country. So, what could have been a credible force of opposition has failed the right to enter the hallowed portals of the Parliament itself!

The less said about the regional and casteist and communal parties the better ..... the joke of India is that today we have more than 500 parties but not a single party that can be considered as an alternative. Interestingly, while the populace of India has increased and the pressures of governance become more and more crucial, the political space has shrunk and this is not a good sign for the future.....

Man lives on Hope and Hope is all I have with me today.....

Wo Subaah Kabhi To Aayegi ..... Wo Subaah Kabhi To Aayegi

Bihar Elections - A New Trend or Old wine in a New Bottle?

The Bihar Elections is not a story of the success of Nitish Kumar and the defeat of Laloo Prasad Yadav ... it's not a story of the astonishing growth of a party essentially built on a Hindu backlash to Muslim vote banks (the BJP), in the Muslim hinterlands, it's also not a story of the final dismantling of the great social engineering plank that the Congress once was ...... it's much beyond all of this!

It is a story of a state that was once at the vanguard of India, as we know it - a state that once led India in all possible indices of development and prosperity.... It is the story of a state that gave rise to the first empire of India, the Nandas and then nourished the next two..... This is the story of a state that was once synonymous with power and diplomacy, where Chandragupta taught the power of the sword and Ashoka showed the power of the word; where Arya Chanakya taught statecraft and Gautam Buddha delvered enlightenment .....

It's all of the above 'But' more importantly this is a story of a state that fell from grace as did Adam from Eden and then languished in the doldrums to such an extent that a day did arrive when the state that had burnt many a candles for two millenia and more, was suddenly left in the dark with no candles, no torch, no light.... It's also the story of Man's indomitable fight against circumstances - of the dream that lives on, even when the reality forces one on, on a path different from the dream...... This is the story of Bihar!

Karpoorji Thakur had two illustrious and much-appreciated students - students, any teacher would be proud of ... this is the story of those two students, their contrasting ways and purposes and how a state was destroyed while the two went their separate ways....

But for India and for the rest of the continent, this is also a story that asks one specific question: Can the Governance of the Indian Sub-Continent be ever liberated from the cesspool of personal and communal considerations in which it finds itself mired today? Do not think, for a second, that this is the question of India alone - for it's not! Every incident in this entire-subcontinent even if takes place on the far-flung corners of the same, does in a course of time impact each and every player, sooner or later....

The results are out - on the face of it, it seems development has won the first round and casteist and  communal politics have been shown the door... In the words, of television anchors and reporters, the ones who are the first to see a trend where there are none and also the first to abandon the trend when public or business opinions change, Bihar has made a turnaround..... today, the populace of Bihar has rejected the charisma of Laloo to the pragmatism of Nitish.....

To an extent, it's true that, yes, Nitish has been a benefactor to Bihar.... he has brought about a turnaround that none could have ever expected or believed in ..... where doing business yesterday was a matter of fear, today chambers of business proclaim increment in investment! Where kidnappings was once the order of the day, today womenfolk are seen travelling even about 7 PM! And finally, the roads of Patna do look somewhat like the cheeks of Hema Malini - so what if the cheeks still belong to the Hema of 2010 and not the Hema of 1970 - still it's a vast improvement, at least they do resemble the much-vaunted Libran cheeks and that too for quite a distance in the hinterland.... not even Delhi can boast of such cheeks in the hinterland!

Yes, development has come to Bihar! Finally! At Last! but is this the end of the Caste Politics, has the Vote Bank Politics finally come to an end, has the sub-continent finally moved on? These are more difficult questions and to be frank, it would be too early to sound the bugle on any of these....

The Great success has not come without making concessions to the other side, the decadent dark face of the spectrum .....  as we shall see, the politics of they versus us has not yet been fully dismantled and this is where the concern lies ....

Where Laloo had ruled the crest of power on the MY factor (Muslim-Yadav factor), what Nitish did was to make the same combine redundant by taking two concurrent steps; the first step was to create a bigger block of the Mahadalits ..... the castes, now called MBC (Most Backward Castes), these are the backbone of his current success and have taken the war to the next level.....

From the 50s to the 80s, the battlefield was the SC and the ST, by using the Mandal Commission to it's benefit, Laloo and his counterparts, launched the OBC (Other Backward Caste) Revolution, becoming thus the face of social re-engineering and enjoying years at the helm; what Nitish did in Bihar was to position himself to the lower ends of the spectrum and weld them into a weapon of his choice..... Laloo's alliance partner, Ram Vilas Paswan could have countered him as a leader of the MBC but Nitish, using brilliant choice of men and measures, converted him from a leader of the Dalits to only a leader of the Paswan community, thus taking away from him the leadership of the entire Dalit community, thus marginalizing him in his own den ... It takes a Mayawati to play those kind of smart manoeuvring games (one of the reasons she continues to be a powerful player in neighbouring Uttar Pradesh), but Ram Vilas is no Mayawati ..... hence, what could have been, did not happen....

On the other hand, by consistently refusing Narendra Modi, who's perceived all over India as a butcher of innocent Muslims, a chance to campaign for his allaince, he got 2 things in clear perspective - 

• he reminded the entire BJP brass, that in matters concerning Bihar, he was the boss and he also ensured that the man on the street also felt and understood this message clearly, and 
• secondly assured the Muslims that a Gujarat kind of carnage could not be repeated in Bihar, since he was in complete control here ......

Contrary to the expectations from a Chief Minister of the NDA, Nitish actually reached out to the Muslims by effectively allowing the integration of the most backward in the community - the Pasmanda Muslims, thus creating a major rift in the formidable MY Equation.....

These two strokes, masterfully played along religious and casteist lines ensured that the much-famed Laloo hand was in severe disarray.....

Add to it, the fact that Development that was something the secular public (not to be confused with leanings but with the open category) always wanted and were now finally enjoying after more than a decade of hunger.... today Bihar is more connected, more confident, more sure of itself and the janata there feels more empowered then it ever did in the last 20 years ....  it was but obvious that Laloo had a battle on his hand...

The final act in the game was women .... with 50% reservations accorded to the women in local and panchayat polls, with free bicycles being distributed among women so that they could study and by endorsing and ensuring the safety of women on the streets by killing the crime rate, Nitish was able to get the most powerful and most difficult players in the game on his side..... whether it's tokenism or not, we will see later .. but as for now, Nitish had the backward community, the Muslims, the general public, the businessmen and the women on his side- something that got reflected in the elections..... Muslims were voting for BJP candidates not because suddenly there was no love lost between traditional enemies but because they were looking beyond BJP to Nitish.....it was the strings of Nitish which got him the result

Looking backwards, everything seems so easy .. .the challenge is not behind but ahead... as the Spiderman comics and movies, often declare..... 'With Great Powers come Great Responsibilities' .... I would say, with Great Expectations come Greater Disillusionment.... the clock is ticking .... and he is now in the most challenging of times.... till yesterday, he was being judged against the inefficiencies of Laloo.... today, he's being judged against the past successes of Nitish.... the battlelines have been drawn.... one wrong step and things can go downhill.... Public perceptions are fickle, they can never be trusted, as Obama would regretfully attest..... so from this time on, it's a walk on a tightrope.....

If Nitish succeeds this time, it may mean that Caste and Community considerations, can, if not today then tomorrow, be slowly marginalized because a second consecutive success would mean that a new rainbow coalition has emerged and rainbow coalitions can and may change the rules of the games..... till then, the battle is in balance....

All the Best Nitish.... and a beautiful couplet from Iqbal ..may it help

Khud Hi Ko Kar Buland Itna, Ke Har Taqdeer Se Pehle,
Khuda Bandey Se Khud Poonchey, 'Bata, Teri Raza Kya Hai?'