Monday, 30th October 2017

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A war and its crimes

The Nuremberg principle and the State's treatment of Maoists

By Prabhat Patnaik
  • Published 18.06.15
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Kobad Ghandy being taken into police custody, New Delhi, 2009

The author is Professor Emeritus, Centre for Economic Studies, Jawaharlal Nehru University, New Delhi

I have little ideological sympathy for the Maoists. I believe that the transition from a neo-liberal State to one representing the interests of the workers and peasants can occur only through a defence and deepening of democracy, rather than through armed struggle resulting in a dictatorship of one particular political party, which is the Maoist vision. The dénouement they visualize does not, in my view, overcome the problem of alienation; it depoliticizes the people, and ultimately gets either overthrown by capitalism or transformed into capitalism. But notwithstanding all my differences with them, I am appalled by the atrocious treatment currently being meted out to Maoists (or suspected Maoists) who are lodged in prisons by the Indian State.

One of the supposed "ideologues" of the Communist Party of India (Maoist), Kobad Ghandy, went on a hunger strike on May 30 protesting against ill-treatment in Tihar jail, where he claims he was being denied basic facilities, necessary medicines and medical attention, and made to shift frequently from one cell to another. Since he has a kidney ailment, in the course of the treatment of which he was arrested from a south Delhi hospital in September 2009, and also several other major ailments, the denial of medicines and medical attention was a serious matter. He called off his hunger strike on June 5, only after a court ordered the jail authorities to provide him with basic facilities and adequate healthcare. The fact that the court had to do so underscores as much the veracity of his claim, as the absurdity of the fact that it needs a judge's order to provide a jail inmate, and that too a political prisoner, with basic facilities.

In the case of G.N. Saibaba, a professor of English at the Delhi University, who was arrested a year ago for alleged "Maoist links" and lodged in Nagpur central prison, there has not even been any judicial relief so far. He is wheelchair-bound, being 90 per cent handicapped owing to post-polio paralysis; and his condition has deteriorated considerably during the last year, with several serious additional ailments also afflicting him. According to his lawyer, the extreme heat in the special, secluded cell, where he is lodged, makes him faint every single day. Such inhuman treatment of a disabled person, and that too of a person under trial against whom no charges have been proved, should be impermissible in any society, let alone a society claiming to be democratic.

The Maoist prisoners are not the only ones being singled out for inhuman treatment. Muslim youths in several north Indian towns are regularly picked up as "terror suspects" and lodged in jails for years, during which they do not even have adequate access to legal defence. Their chances of acquittal, even when innocent, are naturally small; and, if acquitted, they neither get any compensation from the State for their lost years, nor any employment owing to the stigma of having been a "terror suspect" (a stigma that does not go away despite the acquittal).

Many may feel that since the Maoists are "waging a war" against the Indian State, in which several military and paramilitary personnel are being killed daily, the State's treating them in this manner should cause no great anguish. After all, the Maoist leaders and activists have chosen the path of confrontation; so why should they expect any softness from the State?

There are several obvious answers to this. First, the question is not one of softness but of legal rights. Second, a political project must be distinguished from a criminal project, and while nobody accused of being involved in either should be at the receiving end of inhuman treatment, this principle must apply with even greater force for political prisoners. Third, in the specific case of Professor Saibaba, who occupied no position in the Maoist leadership, even his involvement with that movement is a matter that has to be established. Fourth, under the most elementary principle of natural justice, namely that a person is innocent until proven guilty, the undertrial prisoners must be deemed innocent until they are convicted, and must therefore also be treated as innocent. This principle is being violated by the inhuman treatment accorded to them.

There is, however, an additional point that needs reiteration in this context. At the Nuremberg trial of the Nazi leaders at the end of World War II for war crimes and crimes against humanity, an important principle was established: namely, that a person, for whom a moral choice was possible, could not evade responsibility for his actions by claiming that he was simply following a superior's orders. It was on the basis of this principle, which asserted the culpability of individuals who also happened to be members of an organization, that sentences were handed out to the Nuremberg accused.

This Nuremberg principle has a number of important implications. One cannot, for instance, evade responsibility for one's action by claiming to be bound by the "discipline" of an organization, including a political party. One may follow the principle that "nobody is above the party", with the implication that one must always abide by "party discipline" even if the action one has to undertake for maintaining that "discipline" violates one's moral choice; but invoking "discipline" does not absolve one of individual responsibility for that action. The Nuremberg principle interestingly was accepted by all the judges at the trial, which included those representing the Soviet Union where the notion of "being bound by party discipline" would have been expected to receive greater sympathy.

But the Nuremberg principle has a reverse side as well. If nobody can evade responsibility for his individual actions by claiming that he belonged to a disciplined organization that asked him to act in a certain way, then, exactly on the same grounds, nobody can also be held responsible for the actions, supposedly carried out at the behest of such an organization, in which he has played no part, merely because he happens to be an individual member of such an organization. Just as one cannot escape punishment for one's actions by invoking one's organizational affiliation, likewise one cannot be given punishment for actions in which one has no part on the grounds of one's organizational affiliation. Responsibility for any action in short must be specifically assigned.

All this, it must be noted, has nothing to do with the action itself. I may exercise a moral choice to act in a certain manner that I consider justifiable, but which the law of the land as it exists, and the judges who preside over the administration of that law, consider criminal. The Nuremberg principle does not say that one must accept the law of the land; it concerns itself only with the issue of assigning responsibility for the violation of the law. The Nuremberg principle does not say for, instance, that Surya Sen and his comrades should not have carried out the Chittagong armoury raid; it only asserts that no person participating in that raid could claim lack of responsibility on the grounds that he did this because "Master da" asked him to do it.

It follows from this Nuremberg principle that nobody can be considered culpable only because he belongs to the Maoist Party. If sheer membership of an organization does not make one culpable, if culpability for a "crime" (which the individual may not, of course, consider a "crime") has to be established specifically for that individual, then, since every person must be considered innocent until proven guilty, each of the under-trial Maoists must be considered innocent. Even though he may admit to being a member of the CPI (Maoist), and not just to subscribing to the ideology of Maoism (which is all that Professor Saibaba has admitted to doing), he must be charged specifically under different counts of the law as an individual, and, in addition, be considered innocent until found guilty.

It follows that even Maoists admitting to party membership but undergoing trial have to be treated as innocent under law, even by a State that is engaged in a "war" with the Maoist Party. Their rights as prisoners must be respected and they must be given humane treatment. Not doing so would actually invite charges against the prison administrators who mete out inhuman treatment; and they, in turn, cannot, under the Nuremberg principle, hide behind the plea that they were simply "acting on orders". Everything I have said about undertrial Maoist prisoners holds with equal force for the under-trial "terror suspects" who, too, must be given humane treatment in custody, if at all they are kept in custody. And the trials in both cases must be expedited, so that no under-trial person stays in custody for more than a year, at the most.