Lop-sided reading of evidence led to Sen’s conviction

IN Media Practice | 31/12/2010
In convicting Binayak Sen of sedition, the sessions court has not only chosen to ignore evidence to the contrary but has also extended the interpretation of section 124A illogically.
MADABHUSHI SRIDHAR says the verdict even flouts norms set down by the Supreme Court
Kaloji Narayanarao, (Padmavbhushan) a poet and freedom fighter, was charged with sedition and conspiracy for possessing a revolutionary letter from Ravi Narayana Reddy who was imprisoned for his fight against Nizam Rulers in Telangana in the 1930s. The Nizam’s Adalat refused to convict Kaloji holding that mere possession of a letter could not be a proof of sedition. Binayak Sen is being held guilty on a similar charge.
Raipur Additional Sessions Judge B P Varma has held Sen guilty under section 124A (sedition) and awarded him a life sentence. The prosecution relied solely on investigating police officers who can hardly be considered as impartial witnesses. Following are some of the points which explain the bad aspects of the evidence and flouting of law and norms set by the Supreme Court. 
I. Bad on Evidence
  1. The allegation is that Sen ferried three letters from Narayan Sanyal, detained Maoists leader, from jail to other leaders outside. Given the paranoia surrounding the issue it can be reasonably assumed that there would have been little or no opportunity to hand over letters from known Maoist leaders held in Indian prisons. These three letters were considered as key evidence to link Sen to a conspiracy to commit acts of sedition. When three other accused were not convicted of conspiracy to wage war under Section 121A of IPC based on these letters, how can they form valid evidence to convict Sen?
  1. Questions raised by the defence over an unsigned letter, purportedly sent as an introduction by the Maoists to Sen, and used as evidence against him, have not been answered. The letter is not signed by Sen or the Maoists but by two witnesses who seized the letter from Sen’s house. This letter was not part of the list of sized articles submitted to Sen, giving rise to doubts that it was planted by the investigators. The inspectors explained this during the trial by saying, “Either we forgot, or this paper got overlooked because it was stuck to some other document seized during the search.’’ 
  1. The judge ignored evidence of two jailors who said that it would not have been possible for Sanyal to hand over letters to Sen while he chose to rely on the examination-in-chief of the jail superintendent, who stated that Sen would pass himself off as Sanyal’s relative. This despite the fact that prison records exist to show that every time Sen applied meet Sanyal he declared himself to be PUCL  general secretary, on applications written on PUCL letter-head. These applications are part of the court’s record but not considered as evidence.

  2. The material that was seized from Sen’s house was carried in a bag that was not sealed. This lapse raised doubts about the possibility of introduction of letters at a later point. This lapse has been video recorded but was not allowed to be submitted as evidence by the court.
  1. Additional Sessions Judge B P Verma chose to ignore most of the cross-examination, relying only on the special PP’s examination-in-chief.
  1. The Chhattisgarh police could not prove that Sen and Guha (an alleged Maoist) ever met. A hotel owner and a hotel manager told the court they had never seen Sen visiting Guha in their hotels. But this finds no mention in the judgment. Instead, the testimony of one Anil Singh is relied upon, a man who apparently happened to be passing by when Guha was being arrested, and who overheard Guha tell the police that the letters found on him had been given by Sen. These letters find no mention in Guha’s arrest panchnama.  Guha, points out the judge, is an accused in a Naxalite case in West Bengal.
  1. Sen’s wife Ilina sent an email to the Indian Social Institute, a Delhi based institution. ISI is also an acronym for Pakistan’s Inter-Services Intelligence and the judge took this as evidence of links with the neighbouring country.
II. Bad in Law
  1. Mere criticism of state is not sedition, unless it is coupled with incitement to violence or public disorder.
  1. When it is not sedition at all where does the charge of conspiracy to sedition stand? Sen did not even know what sedition meant and the judge told him that it meant ‘Rajdroh’. When two Education Department officers had raised the slogans of “Khalistan Zindabad, Raj karega Khalsa, etc” and were convicted of sedition’, the Supreme Court had set aside the conviction saying that the court should have looked at whether their act led to a consequence which was detrimental to the unity and integrity of the nation.
  1. When Sanyal is not being charged with sedition or conspiracy to wage war how is it possible to charge Sen who allegedly only carried his letters? Sanyal is being held because he belongs to the banned Communist Party of India (Maoist).
  1. Section 124A was used against Gandhi and Nehru by the British to scuttle criticism against their rule. Unfortunately even in a democracy ‘Rajdroh’ continues to be a crime under the same section. The Supreme Court has rightly pointed out that section 124A should not be used to violate freedom of expression. It can be used only if it can result in violence or public disorder. Such eventuality was not proved against Sen. Going by this interpretation by Supreme Court based on its own judgment in Kedarnath v State of Bihar AIR 1962 SC 955), even if it is proved that Sen couriered the letters, he cannot be convicted of sedition because no public disorder resulted. The then Chief Justice of India was against using this section in situations where intention and tendency to create disorder is either missing or not proved. Though Supreme Court limited the scope of this section for Sedition it could have struck down the section as unconstitutional because it gives enormous power to governments to arrest any body. Supreme Court should have gone into the origins and purpose of this section. The British used it to curb the nationalist movement. Why should Indian Government resort to this weapon? As long as this anti-expression provision is available in the statute book, governments will use it against people raising their voice to criticize its actions.
(The writer is faculty Criminal Law, National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad.)


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