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Updated: January 25, 2011 11:14 IST

Jethmalani kicks off Binayak Sen's defence

Aman Sethi
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Dr. Binayak Sen
Dr. Binayak Sen

“What have I been charged with? At least, tell me what I have done,” said Ram Jethmalani, in a packed courtroom, “Have I committed sedition by words spoken, or written? Have I caused hatred or contempt, or have I excited disaffection?”

Appearing for Dr. Binayak Sen in the Chhattisgarh High Court at Bilaspur, counsel Ram Jethmalani argued for the suspension of sentence and grant of bail to the paediatrician and rights activist on the grounds that the judgment of a lower court violated the established tenets of jurisprudence.

On December 24 last, Judge B.P. Verma of the Raipur Additional District and Sessions Court ruled that Dr. Sen had passed on three letters written by the alleged Maoist Narayan Sanyal, an inmate of the Raipur central jail, to Pijush Guha, a Kolkata-based businessman. The judge convicted the three men of the charge of conspiracy to commit sedition and sentenced them to life imprisonment.

In his arguments, Mr. Jethmalani first focussed on the prosecution case and then turned his attention to the judgment.

‘Three points”

“I have three points,” Mr. Jethmalani said: the prosecution produced no admissible evidence to prove that Dr. Sen delivered the letters; the prosecution's own evidence excluded the possibility that the letters were exchanged; and Dr. Sen was never allowed to explain or contradict the inferences gleaned from the circumstantial evidence gathered against him.

On May 6, 2007, Mr. Guha was arrested near the Raipur railway station and allegedly found in possession of three letters. When questioned, Mr. Guha was said to have told the police that the letters had been written by Mr. Sanyal and delivered to him by Dr. Sen. Prison records show that Dr. Sen visited Mr. Sanyal 33 times in jail. A search of Dr. Sen's house yielded literature termed ‘seditious' by the prosecution.

Dr. Sen denies having acted as a courier and says he visited Mr. Sanyal in his capacity as a physician and as secretary of the People's Union for Civil Liberties, and that the visits were authorised by the jail authorities.

Mr. Jethmalani argued that as per the Evidence Act of 1872, a confession made by an accused before a police officer was not admissible as evidence in court, and hence the prosecution could not use Mr. Guha's confession against Dr. Sen. He then quoted from the testimonies of several jailers from the Raipur jail to prove that jail staff strictly supervised all meetings between Dr. Sen and Mr. Sanyal, making it impossible to exchange any letter.

Turning his attention to the charge of sedition, Mr. Jethmalani cited two landmark judgments — the 1962 Supreme Court ruling in Kedernath vs the State of Bihar, and the 1971 Gujarat High Court ruling in Manubhai Tribhovandas Patel vs the State of Gujarat.

In the first instance, Mr. Jethmalani said, the court held that a charge of sedition could be upheld if only it was proved that the accused acted to incite violence or public disorder.

In the second, the High Court cited the Kedarnath judgment and allowed the publication and circulation of a Gujarati translation of the speeches of Mao Zedong, thereby implying that possessing Maoist literature in itself would not constitute a seditious act as long as the possessor did not incite violence or public disorder.

Commenting on the Raipur Additional District and Sessions Court's judgment, Mr. Jethmalani said Judge Verma's observations suggested “an ignorance of Sections 212 and 213 of the Code of Criminal Procedure (Cr.PC).”

The two Sections required that the charges framed against an accused establish the manner, mode and particulars of an offence.

Mr. Jethmalani felt that the judgment was not sufficiently specific.

“When was this conspiracy hatched? Where was this conspiracy hatched…Before you charge me with sedition, you must mention the manner and mode of sedition.”

The arguments will continue on Tuesday.

Keep up the good work, Mr. Ram Jethamlani! It is one thing to belong to or support a political party; it is pure professional ethics on the other side. You dare to see both sides and not blindly oppose any communist because you support a political party like the BJP! You are also doing a national service with your professional ethics. I wonder why the Government does not confer Padma Awards on those like you - is it just because you are anon-conformist?!

from:  P.S. Nath
Posted on: Jan 25, 2011 at 20:53 IST

It is unfortunate that in India innocent and good people are implicated/framed and put in jail. While many anti-national elements continue to be free to do what they want. Will India ever change? Do we need others to tell us on what it is to be JUST and FAIR to our own people.

from:  D. Magoh
Posted on: Jan 25, 2011 at 15:20 IST

So far, the correct line of argument. People are asking the same questions over and over again. However, I believe that too much power has been given to the lower courts while the system has failed to recruit sufficient competent judges to handle sensitive cases at the bottom. There should be a system of referring the suits to the higher courts where more competent people are there.

from:  C Parthapratim
Posted on: Jan 25, 2011 at 14:10 IST

Let us hope for restoration of justice...let India be a country of humanity again...

from:  Gopikanta Ghosh
Posted on: Jan 25, 2011 at 10:32 IST
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