A lot of debate is going on about the judgement related with Dr Binayak Sen. It has resulted into a very large scale discussion in the society. Many Articles, write ups and analysis are coming on about this judgement along with its overall context and the background of the case, with a majority of them commenting upon the judgement adversely. It is very rare to see decisions in India being condemned particularly because of the inbuilt fear of the Contempt of Courts Act. Yet, in this particular case, criticism of the decision along with protests, seminars, petitions and discussions are taking place in large numbers.

But the not everyone is unanimous in his/her opinion about the judgement. Though the dominant voice presently seems to be that of protest, yet the other voice which out rightly supports this decision is also coming up. An interesting thing to be seem here is that while such Articles which find the judgement appropriate are lesser in number, many strong and supportive reactions of common readers to these articles can be seen coming up. In fact, in one of my own write-up where I had presented a fact about most of the defence witnesses of Dr Sen being from Media, I got two responses that were highly critical of me for supposedly glorifying Naxal activities, while I was merely stating facts.

Thus, not exactly presenting my own point of view and my own comments on this judgement, because firstly I need to understand many of the finer nuances of criminal law (including the CrPC and the Evidence Act, along with the interpretation and decisions on the sections in which Dr Sen has been convicted) before being in a position to give an authoritative comment upon a judicial pronouncement, here I am presenting two Articles each in favour of and against the judgement for the readers to analyse the matter and to make up their minds in this hugely debated matter.

The first of these is by Sri Ramachandra Guha, the eminent historian, titled “Not to question why” (http://www.binayaksen.net/2010/12/not-to-question-why/)
In his article, he concludes-“ Sen’s conviction happened in a court subject to intimidation by a government run by (and I use the word advisedly) paranoid politicians (helped by sometimes paranoid police officers). His conviction will and should be challenged. As it stands, however, it is a disgrace to democracy. His brave wife commented on the verdict that if “one who has worked for the poor of the country for 30 years, if that person is found guilty of sedition activities and conspiracy, when gangsters and scamsters are walking free, I think it’s a scandalous situation”. Any reasonable Indian would concur.”

The second Article I present is by Ms Jyoti Punwani, a Mumbai-based journalist and political commentator, titled- " A mockery of justice”. (http://expressbuzz.com/opinion/columnists/a-mockery-of-justice/235002.html ). In this Article she analyzes the case and the judgement from the legal perspective and says-“ s they do in court. Comparing Additional Sessions Judge B P Verma’s judgment with the notes of evidence, one agrees with Sen’s lawyer Mahendra Dubey that judge chose to ignore most of the cross-examination, relying only on the special PP’s examination-in-chief. The most far-fetched police testimonies have been accepted.”

An article favouring the judgement is that of Sri Kanchan Gupta, journalist and political analyst. In his Article- “ Spurious protests over Binayak Sen” (http://www.dailypioneer.com/306255/Spurious-protests-over-Binayak-Sen.html), he also delves into the legality of the decision and finally concludes with these words-“In this war, we can choose to be either with the state or the Maoists; there’s no halfway house because the future of our freedom, our liberty, our open society and our democracy is at stake. Binayak Sen exercised his choice.”

The fourth Article is in Hindi. It is by Dr Ved Prakash Vaidik, a political analyst and writer. His Article “Kamredon ka fizul rodan” (Irrelevant cry of the Comrades) ( http://www.bhaskar.com/article/ABH-comrades-of-the-nonsense-roadan-1700131.html ) says that the judgement in this case was completely fair and those who are condemning it are people from the upper echelons of the society who are not in touch with reality. He writes-
“कौन हैं ये लोग? असल में ये ही ‘बाबा लोग’ हैं। अंग्रेजीवाले बाबा! इनकी पहचान क्या है? शहरी हैं, ऊंची जात हैं, मालदार हैं और अंग्रेजीदां हैं। आम लोगों से कटे हुए, लेकिन देश और विदेश के अंग्रेजी अखबारों और चैनलों से जुड़े हुए। इन्हें महान बौद्धिक और देश का ठेकेदार कहकर प्रचारित किया जाता है.” (Who are these people- actually they are Baba log. English Baba log. What is their identity? They are urban, high caste, moneyed people and English oriented. They are cutoff from the rest of the Nation but are connected to the English channels and newspapers of India and abroad. They are advertised as great intellectuals and moral bearers of the country.)

So, here are the four Articles and having presented these four Articles, I seek excuse from all the people for whom I have presented unpalatable things and end here without presenting my own comments about either of the viewpoints.

Amitabh Thakur,
IPS,
Currently at IIM Lucknow
# 94155-34526

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‘i hate gandhi’ Facebook group

To what extent can Freedom of expression be extended and misused from what is happening these days on Internet. One of the most serious cases that has come to my knowledge recently is about a group on Facebook  named “i hate gandhi”. From the records of the page, it seems to have been started sometime in March-April 2010. As on date (03/01/2010, 12.25 AM), there are 2484 people who like it. Even four of my friends on the Facebook like this group.

The Information page of the group says nothing about composition and details. The perusal of the comments there on the page seem to say that these people have a fascination for other great patriots like Sardar Bhagat Singh, Rajguru, Chandra Shekhar Azad, Subhash Chandra Bose and so on. At the same time they seem to singularly and immensely hate Mahatma Gandhi for many reasons which they provide as being mishandling Khilafat movement, mishandling Mopla riot, forcibly removing Subhash Bose from his post as Congress President, assisting Nehru instead of Patel for the leadership, mishandling the Bhagat Singh case, mishandling 1946 Noakhali riots, being responsible for partition, granting 55 crores to Pakistan and so on. These people also claim that Gandhi called Chatrapathi Shivaji Maharaj, Maharana Pratap, Guru Gobind Singh as misguided patriots, called Sardar Udham Singh, who shot that General O'Dwyer, as an insane person, made the Hindus who were come for shelter in Delhi to come out to the streets to let the Muslims enter again, was responsible for current day emphasis on psuedo-secularism and ignored the revolutionaries and militants, who according to these people were the true patriots.

While there can be views and counterviews on all the above issues, where people would be having differing views, as per their personal inclination, understanding of history, their cultural ethos etc., but what is very serious about this group is the way many of its members are openly using foul, intemperate and abusive language and words here. All kinds of offensive and insulting words have been openly used here. Most of these people seem to be young people. This being a group where all the members proclaim to be Gandhi haters, almost all the comments are adverse to Mahatma Gandhi. But there are a few names like Abhijeet Singh from IMS Indore, Bipin Goyal from University of Pune, Devendar Sharma from National Institute of Technology, Kurukshetra, Gadadhar Ghosal from Bokaro at Jharkhand who studied from WBUT, Gaurab Banerjee from Palan College of Management and Technology, Harjinder Singh Saini from University of Mumbai, Harshil Bhandari, Jay Bhatt working in software industry in Ahmedabad, Kamal Dhawan from Chandigarh, Nikhil Murali from BIT Manglore, Pratyush Jana from Kolkata, Rohan Shinde from Pune, Shikshit Kumar from Hindu College, Moradabad, Sunny from Khalsa College, Chandigarh, Umesh Motwani from University of Mumbai, Vignesh NV from Sivakashi who have gone beyond all limits in using intemperate and abusive language, which shall never be tolerated in any civilized country.

I have saved the shots of all these comments from the Facebook page as a future evidence and while this act of these people prima-facie constitute a criminal act, yet since they all seem to be young people with a future ahead for them, hence I have sent emails to all of them individually to apologize for their act and to disassociate from this such criminal activities. Having views and expressing them within the bounds of law is one thing and becoming abusive, that too about the Father of the Nation and one of the greatest Indians of modern India is a completely different one. They need to understand that all these people they love like Sardar Patel, Bhagat Singh, Maharana Pratap, Shivaji etc,. and the people they hate like Gandfhi and Nehru are all great men in their own way. They can be criticized and critically evaluated in all ways but no one cannot openly use abusive and dirty language for these people. I have also written to the Facebook to immediately disband this group.

If appropriate actions are not taken within a period of 15 days, I shall proceed as per law, both against these people and the Facebook. Hope, the people of this group agree with me.

Amitabh Thakur,
IPS,
Currently at IIM Lucknow
# 94155-34526

Relevance of the Unlawful Activities (Prevention) Act, 1967

Dr Binayak Sen’s case has brought a few Acts in public focus. While a lot of discussion is going on about the decision itself, even the two Acts, viz. the Unlawful Activities (Prevention) Act, 1967 and the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 are also being securitized by many people. Many Human Rights group and other intellectuals are calling these two Acts draconian and anti-people.

This made me go through the two Acts so as to know what exactly these Acts say. Here I present the salient features of the the Unlawful Activities (Prevention) Act, 1967.  Dr Sen has been convicted under section 39(2) of this Act which is related to support given to a terrorist organization. Here support includes inviting support, arranging, managing or assisting in arranging or managing a meeting or addressing a meeting. He was found not guilty under section 20 of the Act which is about being member of a terrorist gang or organization.

To begin with, the Act defines two words cession and secession in following way-
(a) cession includes admission of the claim of any foreign country to any such part ;
 (b) secession includes the assertion of any claim to determine whether to remain a part of India

It defines "unlawful activity" as any action through an act or by words intended to bring about the cession or secession of a part of India or which incites others to bring about such cession or secession. It also includes such action which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India or to cause disaffection against India.

It defines "unlawful association" as that which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity etc or which has for its object any activity punishable under section 153A or section 153B of the IPC. 153 A is about promoting enmity between different groups and doing acts prejudicial to maintenance of harmony and 153 B is about Imputations, assertions prejudicial to national-integration.

The power of declaring of an association as unlawful vests with the Central Government where it needs to specify the grounds except those facts against that are public interest. This notification shall be published in not less than one daily newspaper.

But after this declaration, there is a provision about mandatory reference to a Tribunal, consisting of one person, who he is a Judge of a High Court, within thirty days. The Tribunal shall give opportunity to the affected association to present their disagreement, if any. If the declaration is confirmed by the Tribunal, it shall remain in force for 2 years.

After declaration of any association as an unlawful association, the Central Government has right to issue prohibitory order regarding transfer of money. Any person aggrieved by this prohibitory order may make an application to the District Judge within 15 days. Similarly, the the Central Government gets right to notify any place being used for unlawful act. Here again, any person aggrieved may challenge these orders before the District Judge within 30 days.

Section 10, 11, 12 and 13 define the offences in this Act. Section 10 provides penalty for being members of an unlawful association(two years), section 11 gives penalty for dealing with funds of an unlawful association  three years), section 12 talks of penalty for contravention of an order made in respect of notified place (one year) section 13 deals with punishment for unlawful activities (seven years or five years).

Chapter IV to VII of the Act and the schedule were added through the Unlawful Activities (Prevention) Amendment Act, 2004. Here in section 15 is defined the terrorist act. It includes threatening the unity, integrity, security or sovereignty of India or striking terror in the people by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by biological radioactive, nuclear substances or to overawe by means of criminal force or detains, kidnaps or abducts any person to compel any Government to do or abstain from doing any act.

Various punishments are described from section section 16  to 22, including punishment for terrorist act,  making demands of radioactive substances, nuclear devices, etc, raising fund for terrorist act, conspiracy, organizing of terrorist camps, recruiting of any person or persons for terrorist act, harbouring, being member of terrorist gang or organisation, holding proceeds of terrorism and threatening witness. Proceeds of terrorism means all kinds of properties derived from commission of any terrorist act.  There is also section 38 for offence relating to membership of a terrorist organisation, section 39 to support given to a terrorist organisation and section 40 for raising fund for a terrorist organisation.

A brief analysis of the law would make it clear that this Act is to control and act upon those associations which indulge in unlawful activities or in terrorist acts. Unlawful activity is as any action as regards cession or secession of a part of India or about questioning/disrupting the sovereignty and territorial integrity of India. Here again though an association is declared unlawful by the Central government, it needs a ratification by a Tribunal consisting of a High Court Judge. As obviously known to us, anyone dissatisfied by the order of this Tribunal can always move to the High Court under Article 226 of the Constitution and to the Supreme Court under SLP or Article 32.

Now there are two issues to deal with. One is about the conviction of Dr Sen under this Act and the other is about the Act itself. People might argue out the conviction of Dr Sen under this Act, delving into the law and the related facts of the case. But can there be any person who would deny that no Nation worth its name would ever tolerate an act that goes against its basic existence, that calls for its secession or cession, that challenges its sovereignty, unity and integrity? While there can be theoretical and ideological discussions about the basic concept of a State (or a Nation) but as long as a Nation exists in its given format, no such entity will ever endure such activities that raise question about their being. In the same measure, no Nation can tolerate terrorist acts being undertaken in its territory against the people whose protection is its basic duty.

Hence to say that the Act itself is draconian or needs to be scrapped is akin to openly inviting anarchy and mindless violence, where there would be no semblance of law and justice. Any Human Rights activist would easily understand that if the basic structures of law that have been framed to protect the society and its people, are themselves scrapped or removed, protecting the Human Rights would become an impossible task. Hence, asking for such things is nothing short of playing with fire, with an extremely short-sighted attitude. Yes, one might argue out individual cases, individual actions and individual organizations on a case to case basis, at all suitable and appropriate channels, including the Higher judiciary, but an attempt at rubbishing the very foundations of law seems to be an extremely dangerous feature.

Amitabh Thakur
IPS,
Currently at IIM Lucknow
94155-34526