The sentencing of Dr. Binayak Sen involves unverified charges, and unreasonable and unconstitutional findings.

The constitutional validity of the charges of sedition and conspiracy that were used to implicate rights activists such as Binayak Sen merely for their anti-establishment political thoughts needs to be challenged. The action ridicules the constitutional guarantee of freedom of expression.

The sections of the Indian Penal Code that deal with “conspiracy to wage war against the government” (121A) and “sedition” (124A) are draconian in terms of their definition and ambit and carry a disproportionate quantum of punishment. Section 121A was not a part of the original IPC of 1860: it was inserted by an amendment in 1870. After Independence it was amended in 1951, just to replace ‘British India' with ‘state'. In order to punish the nationalist leaders who were fighting against the Government of India and the rulers of princely states also, the British brought in an Ordinance in 1937. It amended the IPC to add to the definition “local government,” expanding the power to grant punishment for conspiracy against any government. Section 124A was used against nationalist leaders to punish anyone who advocated freedom.

In the Meerut Conspiracy case, the accused were charged with conspiracy to wage war for having formed a union on the lines of trade unions in Soviet Russia. They were convicted by a sessions court. The Allahabad High Court held that unless it was a conspiracy to overawe a government by means of criminal force or show of criminal force, such a finding would be wrong.

Section 124A defined as an offence, exciting disaffection against the state; it was replaced with ‘sedition' in 1898. The English law meaning of sedition is basically libel of government, but its ordinary English meaning is “stirring up rebellion against the government” (Kedarnath v State of Bihar, AIR 1962 SC 955). But in Niharendu Majumdar (AIR 1942 FC 22 (26)), the Federal Court gave a liberal meaning to ‘sedition': “The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.” But in Bala Gangadhar Tilak (ILR (1898) 22 Bom 112), the court held that if a person excited or attempted to excite feelings of disaffection great or small, he would be guilty under this section. This meaning was later was confirmed by the Privy Council.

After Independence, it was argued before the Supreme Court that Section 124A was ultra vires of the Constitution insofar as it sought to punish merely bad feelings against a government, and that it was an unreasonable restriction.

The First Amendment to the Constitution in 1951 incorporated ‘public order' in Article 19(2) as a ground on which the state could impose reasonable restrictions by law. Thus, the inclusion of ‘sedition' was held constitutional by the Supreme Court in Kedarnath. But the Constitution-makers did not specifically state that ‘sedition' should be a ground to restrict free speech. Though the additional ground of ‘public order' is held to be valid for restricting freedom of expression, sedition cannot be read into the wide expression ‘public order.'

Hence, punishing Binayak Sen for “conspiring to commit sedition” is unreasonable and unjustified, besides being unconstitutional. Mere adverse criticism of the state is not sedition, unless it is coupled with incitement to violence or disorder. When it is not sedition at all, where does the charge of “conspiracy to sedition” stand? Dr. Sen did not even know what the term sedition meant. He asked, and the judge answered: ‘Rajdroh'.

When two officers of the Punjab Education Department raised the slogan “Khalistan Zindabad, Raj Karega Khalsa,” they were convicted of ‘sedition'. But the Supreme Court set it aside (1995(3) SCC 214), saying the court should look at whether it had led to a consequence detrimental to the nation's unity and integrity. It pointed out that Section 124A should not be used to violate freedom of expression. Free speech can be reasonably restricted if that would result in violence or public disorder. Such an event linked to the relevant communication needed to be proved before pronouncing a person guilty of sedition. Going by this interpretation by the Supreme Court based on its own judgment in Kedarnath v State of Bihar, even if it is proved that Dr. Sen acted as a courier, he cannot be convicted of sedition because it was not proved that any public disorder resulted.

A crime has to be proved by the prosecution beyond reasonable doubt. Even if a single reasonable doubt is left unanswered, a conviction is not possible. The prosecution has not, then, discharged the burden of proof. Raipur Additional Sessions Judge B.P. Verma was supposed to explain all the reasonable doubts raised by the defence to establish the conviction, but he did not do so.

Charging Dr. Sen of ‘sedition' under Section 124A is uncalled for and he cannot be convicted for that offence even if the court considered that the prosecution had fully discharged the burden of proof. The interpretation of the section by the Supreme Court has to be followed as the law, along with the penal provisions of the IPC.

When the investigating police officers were the only crucial witnesses, their evidence has to be corroborated as they are not independent witnesses. Sentencing the accused solely based on their evidence is unreasonable and unjustified. The judgment should at least appear to be an independent opinion and be supported by a convincing articulation of available evidence. There are at least six bad aspects of evidence, reasonable doubts and unreasonable contradictions involved.

1. The allegation is that Dr. Sen ferried letters from Mr. Narayan Sanyal to leaders outside the jail. It could be reasonably believed that there would have been close supervision affording no opportunity to hand over letters from a Maoist leader to Dr. Sen, a PUCL office-bearer. Yet, the judge considered the letters as key items of evidence to link Dr. Sen to a conspiracy to commit the crime of sedition. When three of the accused were not convicted for the crime of “conspiracy to wage war” under Section 121A based on these alleged letters, how can the same letters form valid evidence to convict him of “conspiracy to commit sedition” under Section 124A read with 120B of the IPC?

2. The reasonable doubt that was raised by the defence that an unsigned, computer-printed letter (labelled article 37) supposedly sent by the Maoists to Dr. Sen was an introduction, has not been clarified. Nobody had signed it: it bears only the signatures of two seizure witnesses. Thus there is a reasonable doubt whether this letter was recovered from Dr. Sen's home or planted later. The letter found no mention in the attested list of documents recovered. A copy of it was not given to Dr. Sen, though copies of all the other seized articles were. Nor is it mentioned in the seizure memo.

3. When doubts over how the letters could have been handed over to Dr. Sen while the police/jail officials would have been closely watching any transactions, persisted, not disproved by any other evidence, either direct or indirect, how can those letters being found with Mr. Pijush Guha be taken as a basis to convict Mr. Guha? The prosecution did not explain how the letters exchanged hands. The judge ignored the testimony of two jailors that it was not possible for Mr. Sanyal to hand over anything to Dr. Sen in jail. The judge relied on the examination-in-chief of members of the jail staff, who stated that Dr. Sen would pass himself off as Mr. Sanyal's relative. Under cross-examination, they admitted that applications to meet Mr. Sanyal were made by Dr. Sen as the PUCL general secretary, on the PUCL letter-head. These applications are part of the court's record.

4. After the police searched Dr. Sen's house and collected the material, they carried it in an unsealed bag. This lapse raises doubts about the possibility of the introduction of letters at a later point. The fact that the bag was not sealed was recorded on video, which was not considered in the court.

5. Judge Verma chose to ignore most of the cross-examination, relying only on the special public prosecutor's examination-in-chief. If the witness contradicted what he stated in chief during cross examination, evidence loses value.

6. The Chhattisgarh police could not prove that Dr. Sen and Mr. Guha ever met. A hotel owner and hotel manager told the court they had never seen Dr. Sen visiting Mr. Guha in their hotels. But this finds no mention in the judgment. Instead, the testimony of one Anil Singh is relied upon: he had apparently passed by when Mr. Guha was arrested, and overheard Mr. Guha telling the police that the letters found on him had been given by Dr. Sen. These letters find no mention in Mr. Guha's arrest panchnama. Mr. Guha, points out the judge, is an accused in a Naxalite case in West Bengal.

(The author is a Professor at the National Academy of Legal Studies and Research University of Law, Hyderabad.)

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