The Binayak Sen and Nimesh Kampani cases must be used to draw up some markers that state assemblies should be advised to not cross when passing laws
Business Standard / New Delhi May 27, 2009, 00:40 IST
It is shameful that Binayak Sen had to be in jail for nearly two years, on charges that the state has so far failed to establish, before he could get bail. It is equally scandalous that Dr Sen should have been denied access to medical care of his choice, after it was established that he suffered from a heart condition. The Supreme Court finally stepped in on Monday to decide, in a minute, that this was a fit case for granting bail. But if it was such an open and shut case that the court could come to a view in a minute, should it have taken so long to get bail for Dr Sen—especially since it has been manifestly clear to everyone with an open mind that he is not a candidate for extreme rendition? The charge that he was waging war against the state (by carrying a letter from a Maoist whom he was treating in jail, with the permission of the jail authorities) will eventually stand or fall on the basis of the evidence that is produced, but the truth is that the state government has so far been able to do little to establish its charge, despite the passage of two years. Dr Sen’s record, as someone who has devoted his life to providing medical care for the poor, as someone who has been a human rights activist, and as someone who had voluntarily gone to answer a summons rather than running from the law, should have been seen as relevant factors and helped him get bail a long time ago. If a draconian state law could be first enacted and then used against such a person in the manner that it has, then the right to pass such laws should be questioned.
This is of a piece with the treatment being meted out to Nimesh Kampani, the investment banker whose misfortune it has been that he was on the board of Nagarjuna Finance many years before the company ran into trouble and failed to repay creditors. Just as Madhya Pradesh has a draconian law that made it so difficult for Dr Sen to get bail, Andhra Pradesh too has a law that has so far made it impossible for Mr Kampani to get anticipatory bail—despite his approaching the Supreme Court for relief. It hardly needs pointing out that no financial genius can peer several years into the future and therefore be held responsible for events that are well over the horizon. It is this kind of absurd logic that has resulted, in recent months, in a mass exodus of non-executive directors from company boards. Who, after all, would want to risk personal liberty for taking on a fiduciary responsibility that does not carry with it any executive powers?
The heart of the issue is the kind of laws that are passed by state governments. The technicality is that the President has to approve and sign a Bill into law, and therefore the Centre can in theory intervene to prevent crazy laws from being passed. Indeed, the President has on occasion refused to sign on the dotted line. But it should be obvious that this cannot be made into a routine occurrence. Nevertheless, there is a case for drawing up some markers that state assemblies should be advised to not cross, if they expect presidential assent. The Sen and Kampani cases should be used to bring about this necessary change.
Sure there need to be checks lest these laws become instruments for human rights violation of any individual. AP state law under question, by amendment included NBFC's (such as nagarjuna finance) under its purview though they were governed by Company law board. If by another amendment all public listed companies are also brought under its purview,overruling SEBI, it will be no wonder. Afterall as compared to losses suffered in stock markets by investors from public, losses in small financial companies would be peanuts- a fit case for protecting funds of innocent local population. Coupled with the huge backlog of cases in courts, the non bailable arrest provision under the law can only spell nightmares for anyone even remotely associated with any company.
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