Binayak Sen

Prisoner of conscience

Print edition : January 28, 2011

Dr Binayak Sen at the Raipur Sessions Court on December 24, the day the court sentenced him to rigorous life imprisonment following his conviction on the charges of sedition and criminal conspiracy. - PTI

The trial court judgment holding Binayak Sen guilty of sedition has led to widespread outrage.

IN India's legal history, no trial court judgment in a criminal case has perhaps caused as much international outrage as the December 24, 2010, judgment of the Second Additional District and Sessions Judge of Raipur, B.P. Verma, did. In his 92-page judgment, Judge Verma convicted Dr Binayak Sen, the well-known human rights activist and medical practitioner, along with the co-accused Piyush Guha, a businessman, and Narayan Sanyal, a Maoist ideologue, for sedition and criminal conspiracy, and sentenced them to rigorous life imprisonment.

For those unfamiliar with the history of this case, the huge outrage against the judgment must indeed appear strange. The trial court is at the lowest rung of the three-stage judicial hierarchy, and if a judgment is patently perverse, as this one appears to be to many, it should be easy for the convicts to secure relief from the High Court, and if they lose there, from the Supreme Court.

But to many seasoned observers, the issues here are far deeper than what they appear to be. Therefore, they are surprised by Union Home Minister P. Chidambaram's suggestion that those who believe in democracy must also abide by the processes of democracy, and that those who are dissatisfied with the judgment could consider the option of appeal. For Judge Verma's verdict may have put the very processes of democracy at stake whether one is able to see light at the end of the tunnel or not.

The trial lasted two years, during which 97 prosecution witnesses many of them policemen and 12 defence witnesses (for Binayak Sen alone) deposed. Both Narayan Sanyal and Piyush Guha did not present any witnesses in their defence. The trial could have taken longer had it not been for the Supreme Court, which directed in October 2010, on a bail application filed by Guha, that the trial be completed in three months.

This helped to limit the process, which itself was a punishment of sorts for an offence sought to be established on the basis of dubious evidence. While Binayak Sen, after spending two years in jail, managed to secure bail from the Supreme Court in 2009, the other two continued to be undertrial prisoners until the delivery of the judgment. Now, with the conviction and the life sentence, the question of their securing bail is ruled out as the appellate courts will take their time to decide on the appeals.

According to the judgment, Narayan Sanyal is a member of the politburo of a banned organisation, the Communist Party of India (Maoist). Binayak Sen conspired with him to pass on his letters to his party comrades through Piyush Guha. On the basis of the evidence, which those following the case felt was of a doubtful nature, the judge concluded that all the three were involved in spreading hatred and disrespect and exciting disaffection against the government established by law in India, by circulating naxalite literature and publications promoting terrorist and naxalite activities.

The legal provisions that Judge Verma relied on are Section 124A of the Indian Penal Code read with Section 120(B) of the IPC, Sections 8(1), 8(2) , 8(3) and 8(5) of the Chhattisgarh Special Public Safety Act (CSPSA), and Sections 39(2) and 20 of the Unlawful Activities (Prevention) Act (UAPA), 1967.

In his lengthy judgment, Judge Verma not only ignored the Supreme Court's judgment in the Kedarnath case (see box on sedition law), but did not even care to record a finding that the convicts conspired to create disorder or disturb public peace by resorting to violence. On the contrary, by clearly concluding that they were involved in spreading hatred, disrespect and exciting disaffection against the government established by law in India, Judge Verma has opted to subscribe to an interpretation that the Supreme Court had consciously rejected because in its view it would render Section 124A of the IPC unconstitutional.

Recent sedition cases

If Judge Verma's ignorance of the Kedarnath judgment could be explained away by the plea that the case was decided in 1962 and much has happened since then, his failure to cite recent cases in which this provision came under review has surprised observers.

In Bilal Ahmed Kaloo vs State of Andhra Pradesh, decided by Justice A.S. Anand and Justice K.T. Thomas of the Supreme Court in 1997, a Kashmiri youth was convicted for sedition by the trial court. The Supreme Court set aside the conviction and sentence. The appellant was an active member of Al-Jihad, a militant outfit formed with the ultimate objective of liberating Kashmir. He was charged with spreading communal hatred among Muslim youth in the old city of Hyderabad and exhorting them to undergo training in armed militancy. He was accused of propagating the view that in Kashmir, Muslims were being subjected to atrocities by Indian Army personnel. The court held that the charges were bereft of the crucial allegation that the appellant did anything with reference to the government. The court, however, did not disturb his conviction under the Arms Act.

Lamenting the casual approach of the trial court, the Supreme Court observed that a mechanical order committing a citizen for trial for serious offences such as sedition and promoting enmity and hatred would harm the cause. He added that the graver the offence, the greater should be the care taken, so that the liberty of a citizen was not lightly interfered with.

In Balwant Singh vs State of Punjab (1995), also missed by Judge Verma, the appellant, a State government servant, shouted slogans in support of Khalistan while coming out of his office on October 31, 1984, the day Prime Minister Indira Gandhi was assassinated in New Delhi. The Supreme Court set aside his conviction after rejecting as false the statements of prosecution witnesses, and held that the prosecution did not establish the charge beyond reasonable doubt.

What the court observed on what constitutes sedition in this case was insightful:

Keeping in view the prosecution evidence that the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that upon the raising of such casual slogans, a couple of times without any other act whatsoever, the charge of sedition can be founded. It is not the prosecution case that the appellants were either leading a procession or were otherwise raising the slogans with the intention to incite people to create disorder or that the slogans in fact created any law and order problem. It does not appear to us that the police should have attached much significance to the casual slogans raised by two appellants a couple of times and read too much into them. The prosecution has admitted that no disturbance, whatsoever, was caused by the raising of the slogans by the appellants and that in spite of the fact that the appellants raised the slogans a couple of times, the people, in general, were unaffected and carried on with their normal activities. The casual raising of the slogans once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the government as established by law in India. Section 124A IPC, would in the facts and circumstances of the case have no application whatsoever and would not be attracted to the facts and circumstances of the case.

The similarity of the Binayak Sen-Piyush Guha-Narayan Sanyal cases with these cases decided by the Supreme Court is striking. Indeed, Judge Verma records in Paragraph 118 that it is not established that the accused persons were waging a war or trying to wage a war or abetting the waging of war against the Government of India or the State government, were continuing to be members of unlawful organisations, taking part in meetings, making or receiving or soliciting contributions for their purpose or abetting in some way the activities of such organisations or holding property generated by proceeds of terrorism or received or earned through terrorist funds.

Dr Binayak Sen's wife, Ilina Sen, and advocate Prashant Bhushan addressing a media conference in New Delhi on January 3.-V.V. KRISHNAN

Similarly, Judge Verma adds, it is not established that Piyush Guha and Dr Binayak Sen are members of some terrorist organisation or group, or are involved in terrorist activities or crimes relating to membership in a terrorist organisation. He held Sanyal to be a member of the CPI (Maoist) on the basis of cases against him in other States in which he has not yet been pronounced guilty.

In the light of the Supreme Court's observations in similar cases and Judge Verma's own finding acquitting the convicts of the charge of waging of war against the government, it could be asked whether their only remaining alleged offence, of circulating naxalite literature and publications promoting naxalite activities, had actually evoked a favourable response from any section of the State's public or posed a challenge to the Central or State governments. Needless to add, a denial, which could be the only answer to such a question, makes Verma's judgment and the sedition charge against the convicts very vulnerable.

On the contrary, what one comes across in a reading of Verma's judgment is an account of how the trial court reached its conclusions by giving the go-by to established legal principles of evidence. One such principle is contained in Section 26 of the Evidence Act, which says that no confession made by any person when in the custody of a police officer, unless it is made in the immediate presence of a magistrate, shall be proved as against such person. Because of the possibility that the police could torture an accused to extract a confession, the law treats such confessions as unreliable.

It is not as if the prosecution was not aware of Section 26 of the Evidence Act and its implications. But it is shocking how the prosecution sought to overcome this limitation by bringing in an independent witness Anil Kumar Singh, a passer-by to give legal sanctity to Guha's confession in police custody that Binayak Sen had given him the letters that the police seized from him. It is true that Section 26 does not bar the seizure of letters by the police as reliable evidence. But Guha's reference to Binayak Sen would definitely be hit by Section 26, and it is on the basis of this illegal confession that Judge Verma convicted all the three.

Judge Verma called Anil Kumar Singh as a seizure memo witness and admitted his statement about the facts and circumstances at the time of seizure saying it was evidence relating to the demeanour of the accused persons and their conduct. Even students of law are likely to consider this part of Verma's judgment a travesty.

Observers of the case found other infirmities as well in the judgment. The prosecution's version is that Sanyal handed over certain party journals and three letters to Binayak Sen when Sen met him in jail. Sen gave these journals and letters to Guha, who was supposed to pass it on to Sanyal's party comrades. Although the court relied on forensic evidence to prove that the letters were indeed written by Sanyal, it dismissed Sanyal's complaint that the police made him write them under duress and that he did not know Guha.

Guha's statement before the Magistrate, which was recorded when he was produced on May 7, 2007, says that he was arrested on May 1, 2007, from Mahindra Hotel, Raipur, and kept in illegal custody blindfolded for six days. Judge Verma said Guha failed to produce any evidence in favour of his statement, thereby putting the onus of proof on the accused and not the prosecution, which is bad in law. It has been pointed out that neither the CSPSA nor the UAPA, as amended in 2004, puts the burden of proof on the accused.

It appears that the prosecution did not find the fact of Guha's arrest at Mahindra Hotel consistent with the version of the seizure memo witness Anil Singh. Therefore, when it was brought to the court's notice that the police had claimed in their affidavit before the Supreme Court, while opposing the bail application of Binayak Sen, that he had been arrested from Mahindra Hotel, the judge simply accepted the police claim that it was because of a typographical error. The statement of an accused before a magistrate immediately after his arrest is legally more reliable than the statement of a passer-by whom the police apparently cajoled to testify against the accused, who was already in custody.

Judge Verma's refusal to weigh the conflicting evidence makes one wonder whether he had consciously blurred the distinction between himself and the prosecution. It is also not clear why he did not find credible enough Guha's explanation that he visited Raipur frequently in connection with his tendu leaf business.

Other similar omissions by the judge favoured the prosecution significantly. Binayak Sen contended that he merely sought to address the legal and health issues of an ailing undertrial prisoner on the request of the undertrial's family. Sen submitted documents to show that he had the permission of the Senior Superintendent of Police for his meetings with Sanyal in jail on the basis of his application written in the PUCL letterhead.

The judge ignored his pleas and relied on the phone calls that Sanyal's sister-in-law, Bula Sanyal, a housewife unconnected with Maoist activity, made to Sen as evidence of a conspiratorial relationship. He also cited entries, allegedly made by the jail officials, in the jail register to show that Sen secured permission to meet Sanyal in jail by claiming that they were relatives.

The judge's uncritical acceptance of the police's version regarding Sen's close relationship with the CPI (Maoist) smacks of his bias against anything purportedly Maoist. The police claimed that Sen and his wife, Ilina Sen, had assisted alleged hardcore Maoists Shankar Singh and Amita Srivastava. Sen did not dispute that Shankar was employed by Rupantar, a non-governmental organisation (NGO) founded by Ilina, or that he knew Amita, whom Ilina had helped find a job in a school. But the judge accepted without corroboration or material evidence the police's version that Shankar and Amita were Maoists.

The police claimed that they seized an unsigned letter, supposedly written by the central committee of the CPI (Maoist) to Binayak Sen, from the latter's house during a search. But this letter did not find a mention in the seizure list. It was signed neither by Sen nor by the investigating officers, nor was it attested by the search witnesses as per the procedural requirement.

Even the charge sheet against Sen did not refer to this letter. But the judge, without doubting the veracity of this document as evidence, accepted the police version that this letter probably stuck to another seized document and could not get duly signed by Sen, the investigating officer and the search witnesses.

Observers underlined Judge Verma's insinuation that Binayak Sen's principled opposition, as a human rights defender, to Salwa Judum and its repressive vigilante operations put him in the Maoist camp. This stance you are either with us or with them adopted by the judge raised doubts about his objectivity.

The judge inferred Sen's alleged support for Maoist activities on the basis of stray references in magazines and pamphlets recovered from his residence and from the contents of his personal computer, including his email correspondence. What followed was a clear abuse of his sentencing discretion, when he awarded the maximum sentence under the law, citing the grave threat posed by Maoists.

Ilina Sen, in her press conference in New Delhi, referred to the massive mobilisation of the police by the Chhattisgarh government on the eve of the judgment and asked how the government knew in advance that the judgment would favour the prosecution.

Prashant Bhushan, senior advocate in the Supreme Court and a well-known voice defending civil liberties, asked how a judge like Verma came to be appointed to the lower judiciary. In his view, the High Court had a responsibility to take action against the judge for authoring this judgment which was a clear proof of his nexus with the prosecution.

Ilina Sen appears to draw inspiration to fight for justice for her husband from the many voices of support from civil society. While public opinion against the judgment has mounted, the silence of the major mainstream political parties within the State and outside has been deafening. It gives credence to the belief that both the Congress and the BJP agree on taking action against human rights defenders, who are the biggest hurdle in implementing inequitable corporate-led development in the Indian hinterland.

The People's Union for Democratic Rights (PUDR), a prominent civil rights group, placed Sen's case in the larger context of state repression. In a statement, it said:

The case against Binayak Sen has become a focal point to oppose the attempts by the state to criminalise civil rights activities. Yet, we strongly feel that in order to make the entire campaign into a success we have to enlarge the present focus from the individual, Binayak Sen, to include the co-accused, Piyush Guha and Narayan Sanyal, and also take into consideration the plight of others who are similarly imprisoned in unfair cases of sedition.

Consider the following: Piyush Guha, the supposed courier in this case, has never been granted bail. He lost his parents in the course of these three years but was not given the right to even attend to the last rites of his parents. Piyush was kept in illegal custody and tortured for five days and he was only produced when the Chhattisgarh PUCL issued a statement demanding his whereabouts. His family lost its breadwinner and his wife, Rupa Guha, has been carrying out a lone fight for three and half years. Our efforts in demanding the release of Binayak must include the release of Piyush Guha.

It further said: Narayan Sanyal, the other co-accused, has been in jail for five years already. He is old and ailing and is suffering from a chronic and painful ailment, fibromatosis. Despite directives from the court, he has not received any serious medical treatment in prison. The argument that his being a Maoist ideologue is sufficient to keep him in prison for the rest of his life is unfair, cruel and undemocratic, particularly since the other cases in which he has been arrested have nearly collapsed. As has been pointed out by many, the decision to charge him with sedition happened only after the police arrested Binayak Sen.

Amnesty International said in a strong statement: Many of the charges against Sen stem from laws that contravene international standards. Repeated delays in the conduct of his trial have cast doubts about its fairness. The life sentence handed down against him violates international fair trial standards and is likely to enflame tensions in the conflict-affected area.

As the Chhattisgarh High Court hears the appeals from the convicts, civil society's anguish will hopefully give an opportunity to both the judiciary and Parliament to review our archaic sedition laws and bring them in line with contemporary tenets in jurisprudence. Even if this leads to criticism that public opinion could influence a neutral judiciary, it should be construed as a healthy influence to correct the distortions in the justice delivery system.

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