The Indian Judiciary, the Salwa Judum Criminal Vigilantes, and Political Prisoner Dr. Binayak Sen


Analytical Monthly Review, published in Kharagpur, West Bengal, India, is a sister edition of Monthly Review.  Its June 2008 issue features the following editorial. — Ed.

When the issue is class struggle, everyone knows that today’s judiciary in India exhibits no qualitative difference from that of the British colonial regime.  When workers try to hold gate meetings, management goes to court and readily gets orders prohibiting meetings within a kilometre distance from the factory gate.  When workers are forced to resort to strikes, then the police, judiciary, administration along with whichever parliamentary political party is in government become active, strikes are swiftly (even eagerly) declared illegal and proceedings begin to suppress the protest by severe police force.  The police have a distressing record of willingness to apply third degree methods and engineer lock-up deaths on management allegations against workers, and judicial intervention is to say the least rare.  An open alliance of the highest court with one side of the class struggle is the only reasonable conclusion to draw from the recent decision in T.N. Rangarajan vs. State of Tamil Nadu, holding that workers lack any fundamental, legal or moral right to strike.  But management can resort to lockouts or closure, evade payment of gratuity, eat away workers’ PF and ESI funds, and know that they face at worst insignificant penalties and never police action.

For cultivators and, especially, the most discriminated against communities in rural areas, the situation is yet worse.  The neoliberal regime has seen a downward spiral marked by a rapid increase in extrajudicial killings by the police (so called “encounter deaths”).  According to the highly conservative figures of the National Human Rights Commission, all over the country (barring Jammu and Kashmir) 83 people died in encounters with police in 2002-03 while in 2003-04 there were 100 deaths.  The number reached 122 by 2004-5.  Since then the situation has gotten sharply worse.  Those who would deny that the police are operating with impunity will have a hard time finding evidence of restraint — let alone punishment — by the judiciary.  Nonetheless, up until this point we have been dealing with uniformed forces operating under discipline with recognized lines of responsibility, however poorly exercised.  In Chhattisgarh the creation of the state-backed “Salwa Judum”, a U.S.-style “counter-insurgency” vigilante death squad operation, and the ensuing murders and forced relocation of adivasis into “resettlement” concentration camps, marked a descent beyond even the form of the rule of law.

We know that the legal system inherited by India can on this issue be remarkably flexible.  In the course of the long struggle of Ireland for independence, right up until the end of English rule, “loyalist” civilians as “auxiliary” police in Ireland could with impunity commit acts that were felonies had they been done some miles away on the other side of the Irish Sea.  And in Iraq, U.S. “civilian contractors” with impunity commit what are most serious crimes when done on the soil of the United States.  But Chhattisgarh is neither beyond the sea nor an embattled border district, and the contradiction is judicially inescapable.

On 31 March, 2008, in response to two petitions seeking a direction to the BJP Chhattisgarh state government to refrain from supporting and encouraging the Salwa Judum, a Supreme Court Bench comprising Chief Justice K G Balakrishnan and Justice Aftab Alam said: “It is a question of law and order.  You cannot give arms to somebody (a civilian) and allow him to kill.  You will be an abettor of the offence under Section 302 of the Indian Penal Code [murder].”  Dr. Binayak Sen has been held for over a year for saying just that: the crime of saying in public in Chhattisgarh what everyone knows but is not permitted to say.  Increasingly the world is becoming aware of this outrage.  On 21 April 2008, the Global Health Council announced that Dr. Binayak Sen was selected for the highest international honour in Global Health and Human Rights, the Jonathan Mann Award 2008.  The Mann Award is presented annually at the Global Health Councils international conference to “a practitioner who makes significant contributions toward practical work in the field and in difficult circumstances; highlights the linkage of health with human rights; works predominantly in developing countries and with marginalized people; and demonstrates serious and long-term commitment.”  Prominent global health organizations issued a statement of support for Dr. Sen, requesting that Indian authorities assure the restoration of due process, and find the means to allow the doctor to receive his award in person in Washington, DC on May 29th, 2008, at the 35th Annual International Conference on Global Health.  Binayak Sen was not permitted to receive the award in person, but Dr, Ilina Sen, his wife and Dean of the School of Culture and Professor and Head of the Department of Women Studies, Mahatma Gandhi A. H. V. University, Wardha (Maharashtra), received the award on his behalf and gave the following address that we believe deserves the widest attention:

What I speak today reflects the thoughts of my husband Dr Binayak Sen, who, in other circumstances should have been here, as well as of myself.  On behalf of PUCL, Rupantar, Medico Friends Circle, Jan Swasthya Sahayog, Peoples’ movements and Human Rights organizations across my country, we would like to thank the Global Health Council for the Jonathan Mann Award given this year to Dr Binayak Sen, as well as for the hospitality they have extended to me and my daughters.  I can not emphasize how much this honor and recognition of our work, and the support of the global health community, means to us at this time.  We would like also to specially remember the Christian Medical College, Vellore, and its alumni all over the world, who have made the cause of Binayak’s freedom their own.  Binayak would especially like to tell you that it is a great privilege to be heir to the legacy of Dr Jonathan Mann and to be able to carry it forward.  Like Dr Mann, Binayak believes that unless we try to change the world it will never change, and he is even now paying the price for following this principle.

Both Binayak’s and my parents came from the part of the world that is now Bangladesh, and as such, we can perhaps lay claim to a South Asian identity.  This is the first time that this award has been given to a South Asian — a region that is home to more than a quarter of humankind, and to some of the world’s poorest communities.  It is in this context that the intersection between Health and Human Rights acquires the special meaning that it has for us, a meaning embedded in Article 25 of the Universal Declaration of Human Rights, affirming the right of ALL to a standard of living adequate for health and well being . . . including food, clothing, housing, necessary social services, and the right to security in situations beyond individual control.  The critical importance of this section becomes clear when we compare the promises of this ideal with what prevails on the ground.  In India, nutrition surveys of the National Nutrition Monitoring Bureau have shown that over 33% of the population have a Body Mass Index (BMI) of less than 18.5, considered to be the minimum level for less than starvation standards.  Translated to demography, this means that over 400 million people are exposed to near starvation conditions.  To add to this catastrophic situation, we are confronted now with a new set of crises.  Between 1990 and 2005, the daily per capita availability of foodgrains has fallen from 510 grams to 438.  World food prices have risen, and the concentration of land ownership in a few hands has intensified.

These poverty-stricken communities are not mere statistical data sets for us.  For the last quarter of a century, it has been our privilege to work with, and share the lives of many such communities in a part of Central India called Chhattisgarh.  Our experience with these communities tells us that in the kind of situation we have been describing, it is the communities’ access to common property resources — grazing lands, water, forest resources, biodiversity — that mitigate to some extent the baleful effects of an alienated economy.  Unfortunately in the recent past, the pressures of ‘development’ have seen to it that these resources have become increasingly sequestered in private and corporate hands.  This new round of resource acquisition has placed major stresses on the modalities of democratic discourse that the civilized world has come to cherish after the bloody history of colonial conquest and intolerance.  In our part of the world, Peace has been a major casualty, with official policy often privileging the interests of the few over the well being of many.  The work of Rupantar and other groups has attempted to uphold a more convivial model of development, but in the face of contradictory tendencies that are much larger, it becomes very hard to preserve even small islands of common good.  The roots of extremism in many of our societies lie in this kind of a situation.  It is impossible to seek a purely law and order or vigilante solution to what are basically the problems of non-inclusive growth.  The Salwa Judum in Chhattisgarh has actually increased the fissures and increased the violence in our society.  Behind the 8% growth rate of the Indian Economy, there are major subsets of the population that are totally disenfranchised.  We are firmly committed to Peace: but to a Peace animated by justice and equity and based on the values of life and liberty.  In the absence of these, restoration of peace through military action can only lead to the graveyard of peoples’ aspirations.  I end with a plea that in the twenty first century let us not repeat the bloodshed that our ancestors inflicted upon populations across large areas of the globe.  The resources of the world are for us all to share.  Let us affirm our faith in that common cause.

We urge our readers, friends and community to join us in making the case of Dr. Binayak Sen our own, for it is, and not to rest until we have seen him released.

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