A Striking Contrast
Prabhat Patnaik
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THE Reichstag Fire was a crucial event in the conversion of Germany from a liberal democracy into a fascist dictatorship in 1933. The fire, suspected to have been started by the Nazis themselves, was falsely blamed on the Communists, on whom massive terror was unleashed on this pretext; many of them were arrested, including several of the 81 Communist deputies in the Reichstag (the German parliament), and this was exploited by the Nazis, who till then had lacked a majority in parliament, to ram through measures that in effect gave them absolute power and converted Germany into a fascist state. Among the Communists who were accused of setting fire to the Reichstag and brought to trial was Georgi Dimitrov the Bulgarian revolutionary who happened to be in Germany at that time.
During the trial Dimitrov who had conducted his own defence had demanded the right to cross-examine Herman Goering the Reich Minister for Aviation and Hitler’s right-hand man; and despite the judge having been chosen by the Hitler regime itself, this right had been granted. The confrontation between Dimitrov and Goering in that court has since become a legend, especially the stark contrast between Goering’s ferocious and threatening statements and Dimitrov’s calmness in confronting them; and even that court operating under Nazi rule had acquitted Dimitrov of the charge of arson. He had subsequently gone on to become the President of the Communist International and had formulated the strategy of United Front against fascism at the Seventh Congress of the Comintern in 1935.
Now, contrast the behaviour of that court operating after the Nazi seizure of absolute power, a behaviour that no doubt represented a carryover from the days of the Weimar Republic when courts were independent, with the behaviour of the Indian courts even before the fascist elements have reached anywhere near seizing absolute power in this country. Let me give a couple of examples relating only to cases of individual freedom.
Professor Shoma Sen was granted bail on Friday the 5th of April by the Supreme Court, after she had spent six years in jail as an accused in the Bhima-Koregaon case. While granting her bail, the Supreme Court said in no uncertain terms that there was no prima facie case of her being associated with any acts of terrorism or being linked to any terrorist organization. And yet she had to spend six years of her life in jail, which raises two fundamental questions: first, shouldn’t the government be held responsible, and hence be penalized in some way, for her extremely long incarceration without any trial, and that too on non-existent grounds according to the Supreme Court itself? And, second, what were the various courts doing all these six years, letting her languish in jail, when they were duty-bound under the Constitution to protect her fundamental rights?
The position taken by the National Investigating Agency in the court during the hearing on her bail application had been that “bail is not a right of the accused”, a proposition that the Supreme Court in its judgement rejected as being violative of Article 21 of the Indian Constitution; but this outrageous argument was nonetheless advanced by the prosecution. When this argument is taken in conjunction with the fact that she had been arrested and kept in jail for six years when there was no prima facie case against her of being connected with any terrorist act or terrorist organization, we get a remarkable proposition being propounded by the present central government. This states that anybody can be arrested at the whim of the central government, which controls agencies like the NIA, and can be kept as long in jail as the government wishes, since “bail is not a right of the accused”. This is a complete rejection of the normal basis of jurisprudence that holds that a person must be considered innocent until proven guilty; the jurisprudence being pushed by the Modi government amounts to saying, since anybody can be arrested even without any incriminating evidence and can be incarcerated for any length of time, that any person can be considered guilty until proven innocent at a trial that itself may never even be held.
While the Supreme Court’s granting bail to her is excellent news, both in itself and also because it rejects the government’s perverse jurisprudence, this rejection cannot yet be taken as final for two reasons. First, it has come at the level of the highest court of the land, while the lower judiciary has yet to be fully sensitized to the need for defending the rights of the individual against the depredations of the executive. Second, the NIA itself had withdrawn, towards the end, its objections to the bail application of Professor Sen, stating that it no longer needed her for interrogation. This of course was as absurd an argument as it was insensitive: it is not as if the NIA was interrogating her for six years or needed six years of her life to complete the process of interrogation. The main consideration behind it seems to be that if the Supreme Court granted her bail despite the NIA’s opposition then this precedent might be cited in future bail applications by others similarly placed. The last minute withdrawal of the NIA’s objection therefore still leaves open the question whether the judiciary, at least the lower judiciary, would grant bail in similar cases in future, or whether it would continue to go along with the perverse jurisprudence that the present government is propounding.
The case of Prabir Purkayastha is another instance of the application of this perverse jurisprudence. The central government agencies had carried out prolonged raids on Prabir’s residence and office looking for incriminating evidence, but had failed to find any. Meanwhile The New York Times published on August 5, 2023, an utterly dishonest and duplicitous piece on an American billionaire, resident in China and holding progressive views, who had allegedly been providing finances to several Left organizations around the world including anti-war organizations in the U.S. This piece was dishonest and duplicitous because it did not cite any evidence for this billionaire being associated with the Chinese government, nor did it directly claim any such association; it did not even claim any specific legal wrongdoing. But it only made innuendos; its objective was to start a McCarthyite witch-hunt against anti-war groups in the U.S., without at the same time publishing anything that might be legally actionable. In that article it had mentioned Newsclick only in passing, as a beneficiary of this billionaire’s funds.
The nefarious design of the New York Times got a boost when a Right-wing Senator from Florida called Marco Rubio wrote to the U.S. Attorney General wanting investigations into nine anti-war groups in the U.S.. But nothing came of it because there was simply no basis for starting investigations, and while the U.S. administration goes around trampling human rights all over the world, it is more circumspect when it comes to the rights of its citizens within the U.S.. And yet this same article was used in India as the excuse for the arrest of Prabir and another colleague of his: the Indian government with its new-found fascistic jurisprudence moved in with steps that even the imperialist U.S. government had found untenable. Not surprisingly, when the charge-sheet was prepared against Prabir almost six months after his arrest, apart from repeating the New York Times’ innuendos as charges, it included Newsclick’s criticism of the government’s Covid policy and its support for the famers’ agitation in the charge-sheet, as if these constituted legal offences!
Until now, the Indian judiciary has been much more solicitous towards the executive, even when the latter has been following a fascistic path and propounding an obnoxious jurisprudence that runs contrary to the Indian Constitution, compared to its German counterpart in the early days of Hitler’s rule; the German judiciary had thrown a spanner in the works of the Nazis by summoning Herman Goering as a witness for cross examination and even acquitting Georgi Dimitrov of charges of setting fire to the Reichstag. Of course Hitler’s ascendancy could not be stopped by the judiciary, as it was not in its hands, but it showed some pluck nonetheless in discharging its Constitutional obligations. One would like the Indian judiciary to show similar pluck.
The recent appeal by several distinguished academics and authors located abroad to the personnel of the Indian state, especially the judiciary, to prevent the executive’s trampling upon the Indian Constitution, becomes particularly urgent in this context.
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