Sen verdict a chance to make justice system more credible

Rights activist Dr Binayak Sen’s conviction and sentence to life for sedition awarded by a Chhattisgarh court will be discussed for a long time to come. This will be more for its message to the human rights movement, and less for the legal issues thrown up, because the latter are not all that complicated in this relatively simple case.

Sen has been accused of receiving some inflammatory documents from Narayan Sanyal, a detenu in the Raipur jail, whom he was allowed to meet more than 30 times as a physician treating a prisoner, and subsequently passing them on to Piyush Guha, a pro-Maoist businessman of Kolkata. Unfortunately, we are here dealing with a heavily emotion-laden movement that seeks to address a fundamental question: how long can the ill-organized and oppressed poor tribals put up with a rapacious landlord class?

The problem is that emotions unfortunately ignore the hard realities of an impersonal and rigid criminal law of the land that operates on wholly different parameters. Sen could be a victim of the technical application of a law, that itself is not wholly anachronistic or a mere legacy of the British past, if one considers the grave situation caused by the Maoists, for whom Sen had unconcealed sympathy. It is unexceptionable that we need a law that punishes incitement of disaffection against the State and promotion of violence and disorder in society. It is an entirely different question whether Sen directly indulged in or abetted such acts.

On the face, facts dished out by the media and staunch members of the extremist fringe in the country, Sen has possibly received a raw deal. There is no evidence or suggestion that he personally encouraged violence or promoted disaffection against the State. A full copy of the session’s court order is yet to be publicised. Hence all opinion on the verdict will have to be based mainly on surmises and arguments advanced both by the prosecution and defence, after the witnesses had finished their deposition.

The judicial order is bound to be challenged in the high court first and the Supreme Court later. It is great mercy that we have a hierarchy in the judiciary, but for which the criminal justice system could do many irreversible wrongs and get away with them. The lower judiciary has far too many faults – mainly, the susceptibility to political pressure and downright corruption - to allow it to have the final say on matters governing our fundamental rights.

Having said that, it is imperative that in the interest of making our criminal justice more credible and acceptable to the law-abiding citizen, the Sen judgment will have be subjected to a clinical scrutiny and its infirmities highlighted without fear or favour.

There are two specific questions: Was the evidence adduced by the State sufficient to make out the offences under the various enactments, viz., the Indian Penal Code, Chhattisgarh Special Public Security Act, and Unlawful Activities Prevention Act (as amended in 2004)? If such evidence is in fact enough in the eyes of a reasonable man (and not merely the judge who heard the case), was the quantum of punishment merited or was it disproportionate to the offences (primarily conspiracy and sedition) for which Sen was charge-sheeted. In sum, what is imperative is a reasoned national debate that avoids emotions. Many inconsistencies in the prosecution case - manner of recovery of the documents in question, contradictions in the statement of some witnesses, some prosecution witnesses turning hostile, and the intentional suppression of the fact that Guha had been kept in unofficial custody much before his recorded arrest – are no doubt a matter of concern. They do not, however, effectively demolish the prosecution theory.

What worries me however is that the prosecution is said to have depended on a single witness, Anil Kumar Singh (who was passing by the place where Guha was arrested) for establishing the fundamental ingredients of the charge of Sen acting as a conduit for passing on seditious documents. The uncorroborated testimony of a sole witness cannot normally sustain a conviction. The point then is that the defence does not seem to have established that Singh was either a motivated or an otherwise unreliable witness. If this is true, you cannot take umbrage at the trial judge going by his testimony and holding Sen guilty.

I am unhappy over the alleged statement by the judge that the difficult situation created by Maoist violence had influenced him to dole out a harsh penalty to Sen. If this statement is true, there is an indefensible mixing of law and emotions that is not called for while dealing with an accused who had not either committed any violence himself or had instigated such violence. The failure to take into account Sen’s past impeccable conduct is also a serious omission that may invite the attention of higher judicial forums when the case gets escalated there.