Raja bola raat hai,
mantri bola raat hai,
court bola raat hai,
ye subah subah ki baat hai!”
(King said it is night, minister said it is night, court said it is night, it was early morning!)
On 24 Dec 2010, the District Court in Raipur, in Chhattisgarh state of central India, sentenced Dr Binayak Sen to life imprisonment. Given the flimsy nature of the evidence, the sentence came a shock, and represented a shot in the arm for the state’s strategy of silencing human rights activists and social workers who dare to dissent.
The targeting of Dr Binayak Sen, well-known civil rights and public health activist, has much wider implications for democracy and civil rights in India. Sen is the National Vice President of the Peoples’ Union for Civil Liberties (PUCL), one of the most respected civil liberties organizations in India, founded by the late Jayaprakash Narayan during the 1975-77 internal Emergency, the worst era in the history of post Independent India. Dr Sen’s work in the area of public health is well known; in fact, he was part of the group to set up the rural health care system for Chattisgarh. This is a man for whose release on bail 22 two Nobel laureates had appealed, with the British House of Commons moving a motion for his release.
Off the beaten track
Binayak Sen completed his basic medical studies from the prestigious Christian Medical College, Vellore, in 1972, and awarded the degree of MD (Paediatrics) by the same institution in 1976. He then joined the faculty of the Centre for Social Medicine and Community Health at the Jawaharlal Nehru University in New Delhi, where he worked for two years. After that, he worked in a field-based health programme at the Friends Rural Centre, at Rasulia in Hoshangabad district of Madhya Pradesh, concentrating on diagnosis and treatment of tuberculosis.
Rakesh Shukla practices law, does clinical psychotherapeutic work, is an Affiliate of the Indian Psycho-Analytical Society, Member of the Indian Association of Family Therapy and is associated with the Center for Psychoanalytic Studies, University of Delhi in Delhi, India.
A growing understanding of the social and economic causes of disease nudged Sen to move in 1981 to Dalli-Rajhara, the site of the captive iron ore mines of the Bhilai Steel Plant in central India. Initially beginning with a dispensary, a group of doctors, Sen among them, worked with the Chhattisgarh Mines Shramik Sangh, a trade union of contract workers in the mines. Along with the radical trade union leader Shankar Guha Niyogi, killed by the industrialists of Bhilai in 1991, Binayak helped workers to establish the Shaheed Hospital, which practiced low-cost and rational medicine for the miners and working people of the area. After a long period of work in Dalli Rajhara, Sen worked to develop a health programme among the adivasi population in the Dhamtari district of Chattisgarh.
Arrest and detention
In response to a summons, Dr Sen presented himself to the police and was arrested on 14 May 2007 under the Unlawful Prevention Activities Act, 1967 (UAPA) and the Chhattisgarh Special Public Security Act, 2005 (CSPSA). The draconian provisions of lapsed central laws like the Terrorism and Disruptive Activities (Prevention) Act, (TADA) and Prevention of Terrorism Act, 2002 (POTA) have been incorporated into the UAPA through an amendment in 2004 and in state laws like the CSPSA.
Thereafter, sedition under Section 124 A of the Indian Penal Code, 1860 (IPC) appears to have been added to the charges against Sen. The extreme prejudice caused by the mere leveling of allegations of sedition ensured the repeated rejection of his application for release on bail by all courts. Thus, the presumption of innocence notwithstanding, Binayak Sen had to spend two years in jail, including a stint in solitary confinement. Finally, the Supreme Court granted him bail on May 25, 2009. After his release, Sen continued the work of focusing on the pathetic health conditions of the poor, particularly the high level of malnutrition in adults and children in India, rivaling countries like Ethiopia and Somalia.
Arbitrary subjectivities
The Second Additional District and Sessions Judge, Raipur, convicted Sen of sedition and criminal conspiracy on December 24, 2010 and imposed the maximum punishment of life imprisonment. Laws creating offences involve the curtailment of the life and liberty of an individual, and therefore generally lay down precise ingredients which have to be established before punishment can be imposed. For example, offences like theft and dacoity are precisely defined as to the acts which constitute the crime, and there is little room for arbitrary play of subjectivities.
In contrast, the definition of ‘Sedition’ lays down that whoever by written or spoken words, or by signs or visible representations attempts or brings into hatred or contempt or attempts or excites disaffection towards the government established by law shall be punishable with life imprisonment. This provision has been on the books since colonial times, and was used by the British to act against those whom they perceived as a threat to the Empire. The use of imprecise and vague phrases like disaffection – which literally means absence or alienation of affection – leaves great room for arbitrary use and for the play of subjective notions of the executive as well as of the judicial officers. In fact, Gandhi, the father of the nation at his trial for sedition in 1922 by the court at Ahmedabad declared the provision of sedition as ‘the prince among the political sections of the IPC designed to suppress the liberty of the citizen’.
Just as in the case of ‘sedition’, acts like ‘terrorism’, ‘disruptive activities’ and ‘unlawful activities’ have been defined in broad imprecise terms under laws like TADA, POTA, UAPA and CSPSA. The broad and vague definition of the offence can be used to cover a wide variety of acts. This leaves room for a pick-and-choose strategy by the executive in the use of these punitive laws. The phrases employed in such extraordinary laws led to the provisions being used against peaceful protests by farmers, agitations by workers or led to the targeting of minorities by those in power. Recently, in the context of the present agitation in Kashmir, young boys throwing stones at security forces have in some cases been charged with the serious crime of sedition. Similarly, there have been instances of youth in the state of Bihar blackening the face of a minister, a minor offence by any standards, being charged with this crime.
Preying on anxieties
In India individuals can be charged with various offences as defined in statutes, and the prosecution can list the criminal cases pending against a person. The category of ‘hardcore Naxalite ’ is unknown to law. Yet the prosecution use and at every opportunity repeat, as in the case of Sen, that the accused associated with ‘hardcore Naxalites’. The use is deliberate in terms of trying to cause prejudice in the mind of the judge. An understanding of the reasons why the use of the term succeeds and adversely impacts an impartial evaluation of evidence may not be conscious. The term possibly feeds into the unconscious class fears of the judge. It may provoke anxieties of being over thrown or torn apart by violent mobs in a revolution. Or fears of breakdown of law and order or of being drowned, suffocated and swallowed in the quicksand of anarchy.
Factors lying in the unconscious come into play not just in the individual trials of persons dubbed as ‘terrorists’, ‘naxalites’ and ‘secessionists’ but at a broader level impact constitutional jurisprudence with regard to fundamental rights and civil liberties. The adjudication by courts of the constitutional validity of ‘anti-terror’ laws like TADA, POTA and UAPA or laws like the Armed Forces (Special Powers), Act, 1958 (AFSPA) brought in to deal with secessionist movements in the North-Eastern states of Nagaland, Assam and Manipur or in Kashmir, is on the surface solely about abstract principles and reasonable restrictions permissible on fundamental rights in public interest.
However, the under the surface processes, which on rare occasions may come through in the consciously written judgments, are at times discernible by minutely observing the gestures, mannerisms, the tone and affect of the queries of the judges during the proceedings. In the absence of the availability of the free-associations of judges, the observation of judicial proceedings offers some pointers. The positive feelings of individual judges towards their mother, and motherland come into play. The material produced in the proceedings to justify the law in the shape of instances of bomb blasts and attacks arouses feelings of anxiety and distress with regard to inimical forces waiting to pounce and violate the mother, which may conflate with dismembering and the break up the motherland into fragments. India is colloquially referred to as BharatMata, that is Mother Bharat. The trauma of the partition of India and the formation of Pakistan lends special potency to these anxieties. This in turn may provoke primitive fears of annihilation. The vague inimical forces get reified in the stereotype of the bloodthirsty bearded AK-47 toting ‘terrorist’ out to destroy. Childhood fantasies of protecting mother against the bad father may mesh in with those of the macho boy soldier and brave patriot son defending the Mother Nation. The plethora of feelings which may get provoked impact fair, balanced and rational application of mind with regard to the validity of such laws. Invariably all the laws in the arena of ‘terrorism’, ‘secession’ and ‘naxalism’ severely curtailing civil liberties have been held to be constitutional and valid by courts.
Minimizing biases
The significant role played by the biases, prejudices and stereotypes of the judge hearing a particular case is evident to any practicing lawyer. Usually, the roots of these biases, prejudices and stereotypes lie in the unconscious. It is rare that a judge would consciously think – ‘I am against workers’ or ‘I think Muslims are bad’ or ‘homosexuals are abnormal’, yet these notions impact judicial behavior and functioning. Given this understanding I felt that a psychoanalytic perspective may offer a worthwhile avenue to explore.
Coming from a background of three decades of law practice and recent training in psychoanalytical psychotherapy, I devised an interactive workshop module for judges to facilitate the taking on board of feelings and thoughts engendered by one’s biases, prejudices and stereotypes. The workshop module was introduced at the Delhi Judicial Academy as part of the training program for judges in Delhi, the capital of India. I conducted a series of workshops and now the module is a regular part of the training and refresher courses for members of the Delhi Judicial Service and the Delhi Higher Judicial Service.
A major problem area is the centrality of the belief in judges that they are individuals who are free from biases, prejudices and stereotypes. Assumptions taken for granted in the area of psychoanalysis with regard to the paradigm of conscious/unconscious could not be taken as shared by participants. The introduction to the workshop explains the basic premises, emphasizing that feelings in the conscious are amenable to processing. It then tries to illustrate from situations in the sphere of law familiar to the participants the playing out of unconscious biases, the possibility of taking on board onto the conscious, processing the feelings and an opportunity to minimize their impact on judicial decision-making.
Methodology
A series of words and pictures are projected on a screen one by one. The participants in the first round are asked to respond to the feelings evoked by the word or picture. The attempt is to create an atmosphere where people do not feel judged and give “politically correct” answers. The role of the facilitator is to check the responses in the nature of thoughts and associations. It is an exercise to get in touch with feelings evoked which do not have a place in the conceptualisation of the rational role of a judge, yet impact functioning. In the second round of responses the participant is asked to give the thoughts and associations evoked. It also attempts to illustrate the at times ambivalent and contradictory feelings which are evoked by people and situations. The words and pictures touch upon caste, class, gender, religion but are across a wide range in an attempt to include other factors at play in judicial functioning. To give a few examples there are slides which show just the colour black or white, or Mother or a picture depicting the stereotype of a terrorist or drug addict. In addition there are slides with just the word homosexual or promiscuous or a picture depicting a sex worker. This is followed by an attempt collectively to see inter-connections with and impact of the feelings, thoughts and associations evoked on judicial functioning. Such a process might enhance awareness of biases, prejudices and stereotypes which impinge on judicial behaviour and impartial evaluation of evidence as well as get reflected in the judgments by courts.
Evidence evaluation
A look at the trial court judgment convicting Binayak Sen is illustrative of the twin hazards of the playing out of prejudices and the retaining imprecise and vague provisions like sedition and terrorism on the statute books. The fact of Sen meeting “naxalite” leader Sanyal in jail several times seems to have caused a grave prejudice in the eyes of the court impacting the evaluation of the prosecution evidence. Dr Sen formally applied on the head of PUCL as General Secretary for each of the meetings, which were cleared by the jail authorities. In fact, the jailors deposed that all the meetings were strictly supervised, ruling out the possibility of any letters being exchanged between Sanyal and Sen. The sole testimony consists of ‘hearsay evidence’ which is inadmissible in courts under the evidentiary laws in India. There are vague unsubstantiated allegations about attending naxalite meetings and helping “hardcore naxalites”. Even if the prosecution story was to be accepted in toto, there is no reference or link to any act of violence. The trial court has on the basis of this flimsy material convicted Sen of sedition.
Ressentiment
The crime of treason harks to rule by kings as Masters with people as slave subjects with traitorous disloyalty being punished with death. The advent of British in India saw the enactment of sedition as an offence in 1860 as part of the Indian Penal Code. The offence punishable with “transportation for life” was part of the frame of the British as Masters who ruled over subjugated suspect natives. After the departure of the British and the independence of India, the Constitution declaring the sovereignty of People was adopted. However, the colonial frame of of the Ruler and Ruled remained in governance. The system of the heads of demarcated administrative districts ruling as heads of minor fiefdoms remains in place. Similarly, democracy meant election of people’s representatives but the paradigm remained that of choosing rulers. The Indian Parliament changed the punishment from “transportation for life” to “life imprisonment” but retained the grand crime of sedition.
It is interesting to see the methods Gandhi used for political mobilization in the Indian independence movement against the strong conquering British in the context of the formulation by Nietszche of the concept of Ressentiment. Lambs getting together and formulating a morality that the birds of prey are evil and lambs are good, in essence the weak rationalizing their weakness by inversely privileging it as morally superior to the strong. In an interesting aside, Gandhi as a young boy from a family which was vegetarian got persuaded by a friend to eat mutton, on the plea that the English ruled India because they ate meat and were strong. As Gandhi records in the autobiography, that at night he could hear the lamb bleating in the stomach!
Gandhi in politics always took the high moral ground and his hunger fasts were as much about self-purification as protest against the British. Unlike the macho revolutionary of the left, the conception of the political activist was as a seeker of truth (satyagrah) using the tools of non-violence and civil disobedience against imperial rulers. This is also the reason that a large number of women got mobilized in the Indian independence movement. It can be seen as Gandhi getting in touch with the feminine self. It has similarities with Freud journey of reaching the method requiring listening by the psychoanalyst in contrast to prevalent notions of active masculinity. The methods were non-violent, yet the actions were forceful and conveyed strength rather than weakness. The listening by the psychoanalyst too is an active listening, quite different from passively lending an ear to someone in ordinary conversation. Even Gandhi’s declaration that preaching disaffection against imperial rulers had become his foremost duty, pleading guilty and inviting sentence at the trial for sedition in 1922 conveys active strength.
A simplification of Nietzsche as championship of master birds of prey would put it quite at odds with and look upon Gandhian methods of mobilization and politics as the bleating of weak lambs. However, a reading of Nietzsche as essentially opposed to the formulation of retributive morality, of being against an abdication of responsibility for action would look differently at this politics. The frame of politics of Gandhi did not formulate the English as evil or enemy or preached hate and retribution against them. The latter reading could look upon the forceful actions of a politics using apparently passive means as not too far from the Nietzschean zest for life, action and creativity, an affirmative amor fati.
Citizens not subjects
The choice of Sen, who has been in the forefront of highlighting atrocities committed by the state-sponsored militia ‘Salwa Judum’ as well as by the police on people, as a target for prosecution by the state is undoubtedly a high-level decision by Master-Rulers. Possibly to send a message to desist from highlighting atrocities against people by the state in areas of Maoist activity. Perhaps it is part of a larger strategy of the state to break all connection between civil society and the Maoist movement as a prelude to an attempt at a military crushing. An approach more in tune with a democratic polity would be to work towards addressing the inequities in society, starting a dialogue with people as citizens and not subjects.
