Thursday, November 29, 2007

Random thoughts on Defending the Indefensible

Today's Hindu carries an op-ed by Vishnu V. Shankar on the subject mentioned in the title. Here is how he begins:

What connects Captain Preston, Kehar Singh, Saddam Hussein, Manu Sharma, and Salim Hamdan? Besides being among our community’s most reviled individuals (many of them at least), they were defended by some of the most conscientious lawyers of their time. Unsurprisingly the legal profession’s time-honoured commitment to defend the most reviled of defendants has never been free from criticism, even in societies committed to the rule of law such as India and the United States. In November 2006, Ram Jethmalani, one of India’s most respected criminal lawyers, was attacked on television and in the press for defending Manu Sharma, the prime accused in the Jessica Lall murder case. In January 2007, Charles Stimson, a senior Bush administration official responsible for the Guantanamo detainees, called for a boycott of the law firms who were pro bono representing the detainees. A year has passed since these events and since the Supreme Court is to shortly decide Mr. Sharma’s appeal against his conviction, it is about time to re-evaluate the issue.

The author - who for a short while was a contributor to this blog, though he went under a different name then – goes on to argue exactly why such “reviled individuals” are entitled to a full and vigorous defence, and lists some of the classic justifications offered by liberal constitutionalists.

The article reminded me of another, more famous case argued by Ram Jethmalani to which Shankar makes a brief reference at the beginning of his piece: the Kehar Singh case. I have to say that I found his inclusion among the group of “most reviled individuals” identified by Shankar a bit puzzling, and I hope it is to Kehar Singh that Shankar's caveat (“many of them at least”) is directed. I’ve always thought that the handling of the Kehar Singh case was one of the low-points in the history of the Indian Supreme Court, and the weak reasoning which it advanced to sentence Kehar Singh to death shows up all the problems of allowing capital punishment to exist in our criminal justice system. The case had all the elements of a ‘hard case’ – a high profile assassination of a once popular Prime Minister, the visceral nature of the events involved, and the need for the legal system to be seen as delivering a ‘result’ so as to assuage the emotions of the public. The legal case against Kehar Singh was weak and circumstantial – this is clearly demonstrable by a reading of the charges and evidence against him as listed out in the Supreme Court’s judgment in the case against the conspirators to the assasination. Reading this case as a law student was a deeply affecting experience, and I believe this eventually led to my own opposition to the death penalty.

The saving grace of this sorry episode was the fact that a lawyer of the calibre of Ram Jethmalani stepped forward to defend Kehar Singh. Jethmalani was unable to stave off the inevitable, but he did demonstrate how weak the legal basis of the case against Kehar Singh was, thereby exposing the real motivations for the hanging of Kehar Singh. Jethmalani is a colourful and controversial figure among lawyers and the Indian populace at large, but no one can doubt that he has done his bit to both shake up and hold a mirror to our legal system. Here is a link to a recent biography on Jethmalani – not having read it, I can only hope that it provides some insight into the storied legal career of the man.

On a different note, but sticking to the subject of defending the indefensible, here is a link to a recent Hindu editorial reiterating (and defending) the CPM's criticism of Governor Gopal Gandhi’s “actions” on the Nandigram episode (link via Nanopolitan). Here, in overly pompous terms, is the stance of the editorial team at the Hindu:

The role of Governor Gopalkrishna Gandhi has, for a second time, come under the spotlight. In March 2007, he clearly stepped out of line in publicly airing his philosophical and tactical differences with the State government over Nandigram. He does not seem to have learnt any lessons from that experience and, in fact, his latest speaking out of line has had the effect of adding fuel to the flames. Let us concede that Nandigram represented a situation where the moral urge not to remain silent came into conflict with the restraints imposed by the constitutional office. Yet, of the restraints imposed by the office, there would seem to be little doubt, and a public statement critical of the government’s handling of the issue could not have been made without transgressing them. The Hindu has consistently regarded this as a major question of principle in the constitutional realm. (Emphasis added).

At this stage, the editorial cites a passage from the colonial-era precedent of Walter Bagehot’s classic text, The English Constitution (1867). Note, however, that no explanation is provided for why this dictum is still relevant in our contemporary constitutional democracy. Recall that our nation now differs from England in that it is not Parliament, but the Constitution itself, which is supreme in India. Here is the rest of the argument:

The right to advise and the right to warn are to be exercised in private and in confidence, and not through public statements. This restraint required of the head of state is not a mere constitutional formality but is based on sound democratic principles. In the first place, the head of state must not, through statements critical of its functioning, place himself or herself in conflict with the representative government, which has a greater democratic legitimacy. Secondly, the head of state should appear non-partisan and remain above the fray when controversial and divisive questions are being debated in the political sphere, and avoid any public statements that could give comfort to one side or the other. The Governor’s public statements on Nandigram both challenged the wisdom of the government’s approach and came down on the side of the critics of its action. Further, Mr. Gandhi laid himself open to the charge of remaining silent when the supporters of the Left Front were at the receiving end. His conduct through this crisis has been constitutionally indefensible. (Emphasis added).

I am not sure where the Hindu editorial team gets its legal advice from, but I am intrigued by the categorical nature of this claim. I haven’t done any research on this, but it would be interesting to see what advice the Hindu editorial team had for our head of state during the Gujarat crisis, or during other similar crises where there were potential threats to life on a large scale. Many people have strongly argued for Governors and Presidents to adopt pro-active roles during times when human lives are at stake. What is more, some constitutional scholars have argued that the text of the Indian Constitution vests real (and not titular) powers in the heads of state at the Central and State levels (i.e. in the President and the Governors) which empower them to take pro-active action in precisely such situations to uphold constitutionally entrenched values. So, the Hindu's claim that Governor Gandhi's actions were "constitutionally indefensible" is highly contestable, and probably unsustainable on a textual reading of the relevant constitutional provisions.

Leaving aside the constitutional argument, it stands to reason that at times such as these, it is not political considerations, but those of basic humanity which must dictate the course of actions.Whatever be the nature of one’s political leanings, it is hard to deny that the Nandigram episode raised serious law and order concerns. Interestingly, Soli Sorabjee, who as Attorney General would have actual experience with such situations, had this to say about stances similar to that adopted by the Hindu:

Much has been written about Nandigram and the blame game is in full swing. Indisputably, there is prima facie evidence of excesses by CPM cadres. In that case, one would have expected a liberal, sensitive chief minister like Buddhadeb Bhattacharjee to acknowledge the lapses and reiterate his government’s resolve to remedy the situation in a spirit of constructive dialogue rather than ‘paying back his opponents in their coin’. Regrettably, any criticism of the West Bengal government’s handling of the Nandigram imbroglio is regarded as hostile and biased. And none is spared, including Governor Gopal Gandhi, a person with impeccable credentials, the chairperson of the National Human Rights Commission, former Chief Justice of India Rajendra Babu, and the Calcutta High Court.

When the Supreme Court transferred the riot cases from Gujarat to Maharashtra and issued other directions to ensure that there was effective prosecution of the guilty, there was no cry of judicial hyper-activism and the judiciary was rightly commended by CPM leaders. Its present tirade against the Calcutta High Court on the ground of judicial over-reach is utterly unjustified.

I have long been a faithful reader of the Hindu. Of late, my loyalty has wavered because I believe it no longer has regular columnists who provide interesting and insightful commentary on the important issues of the day. (There are exceptions, as is demonstrated by the fact that contributors to this blog continue to provide links to and discuss some such pieces, but those who remain are far fewer and less regular than in the past). Moreover, most of the Hindu’s op-eds seem to focus more on international affairs (especially domestic politics in the UK), while ignoring commentary on pressing domestic issues within the country. The Hindu's partisan stance on Nandigram may well turn out to be the last straw for those whose commitment to this venerable institution is already floundering.

7 comments:

Red said...

On an unrelated, I was wondering whether the readers/contributors had noticed this story

Proposal on Hindi as court language draws protest

Special Correspondent

NEW DELHI: Members of Parliament from Tamil Nadu on Wednesday forced an adjournment of the Lok Sabha for 20 minutes in protest against a proposal to make Hindi the language of judgments of the Supreme Court and High Courts.

When the House met again, A. Krishnaswamy (Dravida Munnetra Kazhagam) protested against the proposal mooted by the Committee of Parliament on Official Languages.

The Committee had recommended an amendment to the Constitution to provide for delivery of judgments and decrees of these courts in Hindi.
Copy forwarded

Stating that the Department of Legal Affairs in the Union Ministry of Law & Justice had forwarded a copy of the recommendation to the Law Commission of India, Mr. Krishnaswamy said no further action should be taken on this front.

Intervening, Union Minister for Parliamentary Affairs Priyaranjan Dasmunsi said the Government was very respectful towards all languages and no decision had been taken in this regard.

The Tamil Nadu members had tried to raise the issue as soon as the House met for the day but deferred it till after question hour. However, as their notice was not taken up first, the members trooped into the well raising the issue.

Speaker Somnath Chatterjee adjourned the House for 20 minutes.
Memorandum

Members of the Democratic Progressive Alliance in Tamil Nadu also submitted a memorandum to Prime Minister Manmohan Singh urging him that no action should be taken on the Committee’s recommendation.

They reminded him that DMK president M. Karunanidhi had sought his intervention in facilitating the use of other languages, including Tamil, as languages of the respective High Courts.

Sushant said...

Dear Arun,

I read the supreme court judgment on Kehar Singh and it seems that kehar singh knew about/part of the conspiracy to kill Indira Gandhi. So I would like to know what conclusion you disagree with in granting death sentence to Kehar Singh. I am listing a few possibilities.

1. Kehar was just part of conspiracy and did not murder Indira Gandhi. Conspiracy to murder is not sufficient for death sentence.

2. The testimony of Beant Singh's wife is not sufficient/lacking truth/dubious for indicting Kehar Singh.

3. Death sentence is a bad idea as it does not let a person repent/go back in case some new evidence is found/immoral to take life.

-Sushant.

tarunabh said...

Arun's post tempted me enough to conduct a five minute Google search and this is what a found:
An Editorial in the Hindu, called 'Upholding Core Values' found at http://www.hinduonnet.com/2002/07/27/stories/2002072700081000.htm
Although the entire editorial is worth reading in light of Arun's comments, I can't help quoting "As one who never hesitated to speak up for the socially disadvantaged groups — even at the risk of inviting snide accusations of transgressing the conventional limits of a constitutional head of state — Mr. Narayanan thought it fit to caution once again..." !!!!!

V.Venkatesan said...

Both the Hindu editorial on Governor’s Constitutional propriety (and by implication, the CPI(M)’s disapproval of the Governor’s statement) and Arun’s response to it, appear to be over-reactions to non-issues. The Governor’s statement on Nandigram, both in March and the recent one, can be read at this official website of the rajbhavan, http://rajbhavankolkata.gov.in/ (bulletin section). He has neither advised nor warned the state Government. His statement can be hardly interpreted to be critical of its functioning. He has just expressed his anguish and concern.

Tarunabh has been helpful in bringing out what The Hindu said at the time of the 2002 Gujarat crisis, when President Narayanan intervened. Clearly, we need to resist the itch to compare both Nandigram and Gujarat crisis on an equal plane: both are vastly different in terms of the scale of the violence inflicted on the minorities, and even the degree of state complicity in both the events may be debatable. I have always held the view that President Narayanan ought to have done more than just issue statements after the Gujarat crisis, which lingered on for two months. He should have precipitated a Constitutional crisis, sought the Supreme Court’s view whether he could dismiss a State Government, if the advice was not forthcoming from the Council of Ministers on such occasions, because of party considerations. Instead, he vacillated because he had not completely distanced himself from the lure of the second term in office, with the support of the NDA. The Hindu’s editorial support to Narayanan’s statement on Gujarat crisis is hardly relevant to a discussion on the Constitutional limits of the President’s power. The press ought to have appealed to him to do more, rather than exercise restraint, to stop the carnage.

Arun Thiruvengadam said...

I will seek to briefly respond to the various comments.
Red: Thanks for this interesting bit of information. I do not, however, have an immediate response for you.
Sushant: You have identified some of the reasons, but I would expand and explain them further to make good on my argument that this case was a “low-point.” I cannot respond in full right now, but I recall that there was legal literature analyzing the various faults and problems with the case. I will try and locate cites to that information and if successful, will put it up as an update to this post.
Mr. Venkatesan: Thanks for providing the link to Governor Gandhi’s actual statements, which I had not read in full earlier.
I agree with you that President Narayanan should – and was constitutionally empowered to – have done more. I wish to clarify however, that I do not “compare both Nandigram and Gujarat crisis on an equal plane.” You have pointed out some material differences, (though at one level you undermine your own point when you note that it is only a matter of degree and numbers). However, equality apart, there is indeed a similarity: in both situations, the head of State had to consider whether to take any action when faced with allegations that the government of the day was complicit in perpetrating mass violence. I therefore disagree with your assertion that “The Hindu’s editorial support to Narayanan’s statement on Gujarat crisis is hardly relevant to a discussion on the Constitutional limits of the President’s power.” Why not? Though there are some significant differences, the Governor is the analogue of the President at the State level. As Governor Gandhi has noted, the Governor, like the President, takes an oath to uphold the constitution, and when faced with allegations that the party which constitutes the ruling government is inflicting large-scale violence, surely the Governor and/or the President has a duty to take positive action. Perhaps I did not understand your point fully, and will wait for your clarification.
This leads me to a point that you do not make, but is related: Why this allergy to invoking Gujarat in the context of Nandigram? Sitaram Yechury has a column dated Nov 29 in the HT where he makes the following assertion:
“Those who in their overpowering desire to belittle, if not eliminate, the present influence of the Left in the country, compare Nandigram with Gujarat are not only belittling the tragedy of the 2002 carnage but are, in fact, extending support to Modi and giving a degree of legitimacy to the communal carnage. The debate on Nandigram has taken place in Parliament and will continue for sometime to remain in public discourse. We have joined issue and there shall be opportunities to do so in the future as well. Suffice to state here that one cannot afford to allow anti-communist prejudices to lead into positions of support to communal fascism.”

I find this more than a bit ironic – as I noted in the previous post on this issue, the CPM can’t take credit for the fact that the issue was raised in Parliament, because it tried to keep the issue out of Parliament. Indeed, the CPM has tried to prevent several constitutional functionaries – the High Court of Kolkata, the NHRC, and Parliament – from intervening on the issue.
I must say I’m a bit tired of this tendency of affixing labels of one sort or the other by either the right or the left in India every time someone seeks to make an intervention in the public discourse. (I leave aside for now the question whether either the BJP or the CPM can claim to have a monopoly over these respective positions – surely there is a right in India that is not part of the BJP, and likewise, there is a Left beyond and apart from the CPM?). Any discussion critical of Modi and Gujarat leads to charges of being “pseudo-secularist.” Now, Mr. Yechury takes a leaf out of the same book and labels people who raise the spectre of Gujarat in the context of Nandigram as “anti-communists” who seek “to eliminate the Left in India.”
Such attitudes seem to me to be designed to squelch rather than advance reasoned debate, and must therefore be resisted.

V.Venkatesan said...

Dear Arun,
I am unsure whether you agree with me on Governor's statements, and the Hindu's edit and your response to it as over-reactions.
On Nandigram and Gujarat, let me further clarify the following:
1. It is not just the question of numbers, and the degree, though both are relevant. In Gujarat, the pogrom had the ideological backing of the Sangh Parivar, the urge to teach the minorities a lesson, and the pressure to seek a political mileage, though I am not at all sure, whether such mileage was indeed achieved through the carnage.
Therefore, when you compare the state's complicity in both, by reading too much in one statement made by the W.B. C.M. (pay them in their own coin), and completely equate this one with the wealth of evidence against Modi unearthed by Tehelka expose, certainly one feels uncomfortable. Because it is likely to dent the campaign against communalism elsewhere. I have always felt each historical event must be understood and addressed with reference to the circumstances prevailing at that time. Therefore, such comparisons do no good for an impartial attempt to understand. I am equally troubled by the response, for instance, to Manoj Mitta's book When a Tree shook Delhi. The Sangh Parivar is already on a campaign using that book to show that in 1984, Congress did worse, and that 2002 pales in comparison.
2. I was not trying to distinguish the role of the Governor from that of the President. My point was that The Hindu's editorial support to Naryanan for his role in 2002 is insufficient for a fuller understanding of the Head of State's powers in such situations - be it President or the Governor. The Hindu's edit team probably felt that given the constraints of Narayanan's office, he had no option, but to restrict himself with issuing statements. On the academic question on whether he should have done more, we agree.
3. I agree with you on your criticism of the tendency to affix labels of one sort or the other.

Siddhartha Lal said...

I will briefly attend to the aspect of comparison between Nandigram and Gujarat vis-à-vis role of governor/president. Various views presented on the blog make for engaging reading.

I hold the view that it is not only when worsening affairs of state belong to the category of communal violence that one can raise the issue of state complicity. Also, the extent of violence as noticed in the riots of 1984 or 2002 does not set the threshold for Governor’s or President’s reaction. It is the issue of state complicity which sets the backdrop for the intervention of constitutional functionaries. In Nandigram and also otherwise in W. Bengal the dividing line between the state and the party seems to be vanishing.

I also have a problem when we tend to discount or put premium when set of actions is perpetrated by a particular political party. It is not the party or its ideology but the precise nature of acts which are the issue. In a democratic set up state’s first role as protector of civil life such that people can conduct business and hold views without fear or favour is of prime importance. Space for consultations and dissent against state for anything ranging from minimum wage to SEZ is an indicator of democratic health. Self righteousness and arrogance flowing out of progressive policy and substantive ideals can not substitute propriety in methods and means. I find Gandhi’s guidance on the issue of means and ends quite informing in the instant context. Matters of bread and liberty can not be mixed in a democracy.

It is interesting to see the line of EPW editorial:
"Neither the Bharatiya Janata Party (BJP) nor the Congress lay much store by democratic practices in their day to day functioning. It is the Communist Party of India (Marxist) – CPI(M) – that has been until now the only all-India political party that has, by and large, adhered to democratic procedures and processes. However, the actions of its cadre in
Nandigram in East Medinapur district of West Bengal in the past week, with the acquiescence and silent encouragement of the state government, have at one stroke destroyed much of this reputation.
The well-planned “recapture” of Nandigram from anti-land acquisition forces by hundreds of well-armed cadre has made a mockery of all the basic norms of democracy. The situation in Nandigram was, to be sure, extremely complex and did not admit of easy resolution. But what does it say of a party and its government that mobs of cadre are allowed to go on a spree terrorising and occupying villages controlled by their opponents while the administration and police stand aside?"

Coming specifically to the issue of democratic traditions and CPI(M) I think the party does not have not much to boast for in particular. Progressive content of policies is one thing but to conform to the democratic methods and processes is quite another. On the later count I do not find much evidence so as to put the party in a different category. If anything, the record of the state government during naxalbari days is a stark reminder of typical state reaction in difficult circumstances. The EPW ends the editorial on a similar note without substantiating its claim:

"The Congress and BJP are regularly implicated in mob violence; not so the CPI(M) until now though it has been increasingly accused of exercising party rule in administration in West Bengal. The Nandigram tragedy has changed per ceptions. The behaviour of the party cadre and the attitude of senior functionaries does not augur well for the future of democratic functioning in India, fragile as it is in so many ways."

Political overtones only cloud the real issue and nature of problem in West Bengal.