The quality of mercy

By V.R. Krishna Iyer
The Hindu, Monday, Feb 28, 2011

Every instance of criticism that seeks to expose a government's operation against the people and their liberties is not a bid to overthrow it. That is not sedition but a patriotic mission on account of public commitment.
The life sentence imposed on Binayak Sen on a charge of sedition has provoked much vocal, even militant and hostile, public opinion. The judicial verdict is seen widely as being unjust, contrary to the people's conscience, and as an act of violence to public justice. It has invited severe mass criticism as an outrage.

It is nobody's case that Dr. Sen can be above the law or that the courts can ignore the evidence on record and rely merely on rumour or reputation or other arbitrary irrelevance. Nobody challenges the obligation and the duty of the court to act only on the evidence before it, but that does not apply to mercy power or privilege beyond the record. There is a clemency jurisdiction that can act on other benign considerations and show compassion beyond the technical ambit of the law in order to do justice. Mercy is nobler than law and it can have priority over law. This is a finer function of public conscience that does not destroy the conviction but deals only with the sentencing. The law remains; so too any guilt.

The court's decision based on the letter of the law is not undone, but a larger vision and certain sublime considerations prevail. Good things done with admirable motivation ought to be given recognition in giving a fair deal to an accused. Mercy is more than law or narrow judicial justice. This clemency factor is a dialectical operation that not the courts but members of the highest executive, like a President or a Governor, alone can exercise. This special jurisdiction is particularly relevant in Dr. Sen's case at this stage.

Extraordinary charge

Dr. Sen has been found guilty of sedition. This charge is an extraordinary one and is based, according to newspaper reports, on his association with certain Maoists. Dr. Sen has worked extensively in the rural areas, providing medical assistance to the poor. He has a reputation for having sacrificed much of his time and his skills for the poor. This should be an important factor in considering the sentencing dimension of his guilt.

Similarly, the Maoists have received medical aid, which is expensive; doctors often charge heavy fees. Dr. Sen's services are commendable and the general public feeling is that he deserves praise for his commitment to those who suffer from disease. To serve the public is not sedition. I would regard this as an alleviating consideration in the sentence that has been given to him. When a government provides hardly any medical facilities to the poor, service-minded doctors are not guilty of sedition even if their words go against the government's. Otherwise all opposition will turn out to be sedition.

Philanthropy is not fascism and public commitment critical of the state administration should not be confused with a traitor operation. I therefore view Dr. Sen as eligible for tribute, not to be condemned for sedition. Was Gandhiji or other critics of the state that hardly cared to wipe the tears of the poor, guilty of sedition? There is often grave confusion between criticism of a government demanding its overthrow — not by violence but by positive service and commitment to the people. Operation patriotism is not sedition.

Every confident motion, every instance of strong criticism that seeks to expose a government's operation against the people and their liberties, is not meant to overthrow the government and its bad politics. This is not sedition but a patriotic mission on account of public commitment. When you go to the villages and serve the people by providing them medical aid, where the state has failed to do so, that is patriotism, not sedition. Because the government does nothing to serve the people's right to live it is not sedition; otherwise every writ petition filed against a government or one of its agencies could be considered as seditious. Every activity in support of public causes that are meant to counter the government's grievous failure is the fulfilment of a democratic duty, not sedition.

Judges cannot miss a glorious vision of great sacrifice for the common people for fear of being imputed with sedition. The rule of law must support the rule of life and not scare away integrity, fraternity, fellowship and compassion and national commitment for fear of misconstruction by justices. Justices who miss the majesty of swaraj, which means wiping every tear from every eye, do not deserve their robes. To describe service done to the poor as sedition will be an outrage of the mandate of the Mahatma.

Binayak Sen should be released. To put him behind bars is a grave violation of social justice.
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To know about the author, Justice V R Krishna Iyer see here:
http://www.vrkrishnaiyer.org/
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