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.

Post a Comment