The Binayak Sen case: An anomaly?
As I read the 92-page verdict in State of Chattisgarh versus Piyush Guha, Binayak Sen and Narayan Sanyal (by the 2nd Additional District and Sessions Judge, Raipur in Criminal Case No. 182-2007 on December 24, 2010) I felt an acute sense of embarrassment on two levels. The first was of the mundane variety, occasioned by the fact that it took me several hours to go through the text in Devanagari script, clearly because I have not done any sustained reading in Hindi (despite identifying it as my first language) since finishing mandatory classes in school nearly twelve years ago. The second prong of this embarrassment is more in line with the collective outrage that has been expressed in response to the trial judge’s findings that have little if any causal link with the charges framed against the defendants and yet form part of a determination of guilt. The disbelief at Dr. Binayak Sen’s conviction for conspiracy to commit sedition [as defined under Section 124A read with Section 120B of the Indian Penal Code] in addition to several other terrorism-related offences [under Sections 8(1), 8(2), 8(3) and 8(5) of the Chattisgarh Special Public Safety Act, 2005 apart from Section 39(2) of the Unlawful Activities Prevention Act, 1967] has been amplified by the fact that all three defendants have been sentenced to life imprisonment. The trial judge’s failure to account for the material inconsistencies and omissions in the prosecution version has already been highlighted in a note prepared by Dr. Binayak Sen’s well-wishers [See: Ilina Sen, Sudha Bharadwaj & Kavita Srivastava, ‘Note on the Binayak Sen Judgment – Raipur, 26th December, 2010’] as well as in journalistic coverage. [See: Jyoti Punjwani, ‘The Trial of Binayak Sen’, Economic and Political Weekly, Vol. XLV No. 52 (Dec. 25, 2010) at pp. 21-23; Manoj Mitta & Supriya Sharma, ‘Court overlooks weak links in Binayak Sen case’, The Times of India, Dec. 27, 2010; Praful Bidwai, ‘Shutting him up’, Hindustan Times, January 3, 2011]
It is not my intent to trivialize the gravity of the decision’s consequences that will be faced by the defendants and their families, but one can easily foresee pedagogic uses of this verdict, primarily as an example of how criminal law and procedure should not be applied and interpreted. This could be in pursuance of suggestions (made by Professor Upendra Baxi among others) that mainstream legal education in India should move away from its selective emphasis on progressive decisions rendered by higher courts which are not representative of the functioning of the judicial system as a whole. Instead, more attention should be drawn towards erroneous decisions that are routinely made by trial courts which are the first point of access for litigants. Of course, it goes without saying that Dr. Binayak Sen is no ordinary litigant. The fact that he has spent nearly three decades providing healthcare among deprived tribal communities and unorganised labour undoubtedly contributed to the widespread public criticism of his prolonged detention without bail (between May 2007 and May 2009). It will continue to be a factor in public conversations as this case proceeds to the appellate stage. While it is reasonable to say that both the conviction and the unduly harsh sentence are likely to be overturned on appeal, the high-visibility of this particular decision makes it a prime candidate for thorough discussion and dissection in academic settings. The trial judge has unintentionally (and may I say unwittingly) produced a writing sample that captures many of the structural flaws in our criminal justice system – namely, legislative overbreadth and obsolescence in defining offences and prescribing sentences, numerous irregularities in investigation on part of the State police, a finding of guilt despite insufficient and unreliable evidence and to top it all a clear abuse of sentencing discretion.
There are of course many prominent voices that have alluded to the irony of convicting an acclaimed human rights defender for sedition at a time when numerous scam-tainted public officials go scot free, [See: Ramachandra Guha, ‘Not to question why?’, Hindustan Times, Dec. 26, 2010; Shiv Vishwanathan, ‘A case of conscience – Letter to Prime Minister Manmohan Singh on the conviction of Dr. Binayak Sen’, Posted on www.kafila.org on Dec. 28, 2010] but that is more of a rhetorical claim which should be clearly separated from the legal considerations. To be sure, in the trial stage Dr. Binayak Sen’s defence counsel did argue that he had been falsely implicated by the State police in retaliation for his documentation and criticism of the atrocities committed by the State-backed ‘Salwa Judum’ militia which had been organised to counter-act the Naxalites. Such claims of selective prosecution are very difficult to establish since investigators and prosecutors have considerable discretion in the filing of charges and the follow-up action leading up to the framing of the charge-sheet by the trial judge. Now that the trial judge has recorded a very questionable finding of guilt, in the appellate stage the emphasis should primarily be on the quality of evidence (or the lack of it) that was relied on during trial, with the ideological overtones and comparisons with ‘prisoners of conscience’ such as Nobel Peace Prize awardee Liu Xaobo taking a backseat. [See: Vinay Sitapati, ‘Judgment that risks tainting democracy’, The Hindu, Dec. 30, 2010]
Coming to the specifics of the case, the prosecution’s chief claim was that the three defendants were involved in a conspiratorial relationship wherein Maoist ideologue Narayan Sanyal passed on some letters to Dr. Binayak Sen during their meetings in Raipur Central Jail, which were subsequently passed on to Piyush Guha, a Kolkata-based businessman for further dissemination among Naxalite operatives in Kolkata (Para. 4, 15). According to the prosecution, the genesis of the case lies in Piyush Guha’s arrest near Raipur Railway Station on May 6, 2007 after he was stopped and questioned by the police (who were apparently acting under a directive from their superiors to investigate suspicious-looking individuals in several parts of the city). It was further claimed that the incriminating letters (submitted as A-8, A-9 and A-10 during trial) and some Naxalite literature were recovered from Piyush Guha, who subsequently named Narayan Sanyal as the author of the letters and Dr. Binayak Sen as the intermediary. Even though the handwriting in the letters allegedly recovered from Piyush Guha was forensically matched with that in samples collected from Narayan Sanyal, the prosecution did not produce any credible evidence to show the fact of Dr. Binayak Sen’s involvement as a conduit. There was a plain error by the judge in applying the law since statements purportedly made by Piyush Guha during the course of custodial interrogation were relied on to implicate both him and Dr. Binayak Sen. All that the prosecution produced were testimonies by policemen (P.W. 95 and P.W. 38) and one arrest witness (P.W. 1) that they had heard Piyush Guha naming Dr. Binayak Sen as the conduit for the letters written by Narayan Sanyal. The testimony of the arrest witness (P.W. 1) is especially intriguing since he claims to have heard these incriminating statements after having accompanied Piyush Guha to the police station following the latter’s arrest on May 6, 2007 whereas the policemen testified that they heard the same during questioning by the Investigating Officer (I.O.) on May 9, 2007. Irrespective of this discrepancy, it is a settled principle in the law of evidence that statements made in custody cannot be the basis for fact-finding at trial, unless they have been made before or verified by a magistrate in accordance with statutory requirements (Sections 160-167 of the Code of Criminal Procedure, 1973). Compliance with these procedural requirements is intended to check coercive police behaviour while at the same time ensuring that statements admitted as evidence during trial are both voluntarily made and of a reliable nature. While investigators can act on the basis of statements made in custody, the trial judge is not given the same leeway. This is one of the first concepts taught in any law school class on evidence.
Further weakening the prosecution’s version is the fact that two assistant jailers who were examined as prosecution witnesses testified that the meetings between Narayan Sanyal and Dr. Binayak Sen took place under the supervision of jail officials, necessarily implying that it was unlikely that any letters would have been exchanged without the latter’s knowledge. The defence also raised doubts about the involvement of Piyush Guha by pointing out the inconsistency regarding the location of his arrest that is apparent if one compares the prosecution’s submission to the Sessions Court with the I.O.’s reply filed in a bail application instituted before the Supreme Court at an earlier point of time (Para. 98). The trial judge simply bought the prosecution’s weak claim that this inconsistency was attributable to a typing error. It must also be noted that in his defence, Piyush Guha has maintained that he was arrested without cause and kept blind-folded for several days before being forced to sign a statement to the effect that the afore-mentioned letters and some Naxalite literature was recovered from him. The prosecution’s version was further put in doubt since they maintained that Piyush Guha was arrested near the Raipur Railway Station on May 6, 2007 whereas his defence counsel asserted that he had gone missing from a lodge on May 1, 2007 thereby implying that he had been arrested on the latter date and at a different location. The owners of the two lodges where Piyush Guha had stayed were also examined by the prosecution (P.W. 2 and P.W. 9) but were declared hostile after they testified that they could not recall any meetings between Piyush Guha and Dr. Binayak Sen. Even if one were to ignore the errors and inconsistencies outlined above and assume that the letters in question were indeed recovered from Piyush Guha, there is not a shred of properly admissible evidence to implicate Dr. Binayak Sen.
The even more worrisome features of the trial court’s verdict are the illogical surmises leading up to the finding that all three defendants were involved in Naxalite activities, even though there is hardly anything on record to show specific involvement in the planning or commission of any violent or subversive acts. The one-sided tenor of the judgment is best captured by the blanket dismissal of the objections to the prosecution testimonies that were raised during the course of cross-examination. While the prosecution testimonies about the grave threat posed by Naxalite activities in general and Dr. Binayak Sen’s alleged acquaintance with several hardcore Naxalites occupy a considerable part of the decision, the defence’s objections are not even outlined and have instead been disposed off in one paragraph. It is hard too imagine how a judge can take such a one-sided view, even if it were assumed that his personal sensibilities were those of being ‘conviction-minded’ and in support of a hardline approach against Naxalite operations. As many commentators have already pointed out, political posturing and ideological beliefs can neither be a justification or a means for diverting attention away from shoddy fact-finding.
The prosecution described Piyush Guha as a ‘hardcore naxalite’ by showing that he had been among those charged in a criminal case related to an armed attack on a CRPF camp, which was pending in Purulia, West Bengal since 2005. A fact that has been omitted in the trial court’s judgment is that Piyush Guha was charged in the Purulia case on May 6, 2007 – the very same day that he was supposedly arrested in Raipur. This suggests that there might have been some collusion between police officials in the two states, possibly to fabricate charges. In any case, the fact that an individual is facing charges cannot be equated with guilt. As for Narayan Sanyal, the trial court concluded that he is a member of the politburo of the Communist Party of India (Maoist), a proscribed organisation, by simply relying on references in the pro-naxalite literature allegedly recovered from Piyush Guha as well as those in the materials seized from Dr. Binayak Sen’s residence. Even if there is a deluge of mainstream journalistic materials that refer to Narayan Sanyal as a Naxalite ideologue, it was incumbent on the trial judge to ascertain the specific nature of his involvement through some independent evidence. Instead of searching for corroboration, the trial judge simply presumes that Narayan Sanyal is involved in Naxalite activities since he is named as an accused in other cases pending in Andhra Pradesh and Jharkhand.
The findings pertaining to Dr. Binayak Sen’s alleged support for and involvement in Maoist activities are partly based on stray references to naxalite activities in magazines and pamphlets recovered from his residence and the contents of his personal computer ( including e-mail correspondence) that were transcribed and presented as evidence. Taken to the logical extreme, such an interpretation could imply that any individual could face prosecution for merely researching and documenting terrorist activities [See: Ajay K. Mehra, ‘Conviction of a Doctor: Reminiscent of the colonial treatment of the terrorist’, January 1, 2011]. Even if one gives the benefit of the doubt to the trial judge by making the reasonable assumption that the prosecution’s reliance on such references was irrelevant, one of the most startling findings is in respect of an incriminating letter (A-37) that was allegedly recovered during the search of Dr. Sen’s residence on May 19, 2007. This particular letter is purportedly sent from a functionary of the CPI (Maoist) and addresses Dr. Binayak Sen as ‘comrade’ and thanks him for his services. Apart from the fact that there seems to have been no record of this letter in the seizure memo prepared on the spot, it is inconceivable how the content of the letter by itself can be accepted as evidence of support for Naxalite activities. What adds to the comedy of errors in the prosecution’s story are the testimonies that this particular letter may have been stuck or misplaced among the other items seized during the search and hence finds no mention in the seizure memo. Like the other material inconsistencies in the prosecution version, the trial judge bought this explanation as well.
As one ploughs through the text of the judgment, what initially appears to be a bundle of errors turns into a legitimate apprehension of collusion between the prosecution and the trial judge. While some might consider this to be an unfair criticism, it is very difficult to digest the uncritical acceptance of the policemen’s testimonies about Binayak and Ilina Sen’s supposed acquaintance with several hardcore Naxalites. Both the People’s Union for Civil Liberties (PUCL) and the Rupantar Trust (the NGO through which the couple works to provide medical services and education to tribal communities) have been described as front organisations for Naxalites, without any contextual inquiry into their activities. The names of individual acquaintances have been sloppily matched with those of fugitive Naxalite leaders, again without any independent corroboration. One policeman’s testimony that Binayak and Ilina Sen regularly attended meetings with Maoist leaders in rural Maharashtra has been accepted despite no other proof of the same. This is not to say that the ‘kitchen-sink’ of allegations and charges thrown at the defendants is entirely baseless. Even on appeal, Dr. Binayak Sen’s lawyers will have to explain the implications of Dr. Binayak Sen’s acquaintance with Narayan Sanyal prior to their meetings in Raipur Central Jail.
The proverbial ‘icing on the cake’ (to use some sarcasm) lies in the sentencing decision. All three defendants have been sentenced to life imprisonment for conspiracy to commit sedition, which is the maximum prescribed sentence. This is a clear abuse of the sentencing discretion that is accorded to the trial judge for differentiating between the various degrees of culpability and the gravity of an offence. Even if one were to disregard the investigative lapses and flimsy evidence presented in this case and assume that the handing over of letters constituted a conspiratorial relationship, such conduct cannot be equated with acts of physical violence or direct incitement for the same. Instead, the sentencing transcript cites the grave threat posed by Naxalite activities in general as the basis for awarding the maximum sentence. It is unclear how the punishment will serve the ends of deterring Naxalite violence or even those of retribution if one were to take the view of hardliners. On the contrary, such an excessive sentence could serve as fodder for Naxalite propaganda and recruitment in the region.
As suggested at the beginning of this note, it would not be stretching one’s imagination too far to see this verdict as a symptom of the many woes of India’s criminal justice system. Irrespective of the divergent and sometimes polarized positions on how to tackle the Naxalite mobilization, this case is an apt illustration of why responsiveness in the framing of penal legislation as well as fairness in investigation, prosecution and adjudication matters to all citizens. For far too long, our Parliament has delayed the necessary re-evaluation of many obsolete offences that remain on our statute books. This case amply highlights the dangers of offences that are defined in a vague and overbroad manner while providing for a wide sentencing range. The trial court’s ignorance of Supreme Court precedents which restrict the definition of ‘sedition’ to direct incitement of violent acts is not a one-off occurrence of such ignorance in the lower courts. If one takes a random sample of criminal appeals in the higher judiciary, one will readily find many cases of such erroneous application and interpretation of statutory offences. The Indian Penal Code was enacted by the colonial government in 1860 and till this day it is the mainstay of substantive criminal law in our legal system. While there have been piece-meal changes from time-to-time, both in respect of prescribing ingredients of offences and sentencing ranges, there is no sustained move towards a coherent overhaul of the criminal law. In recent years, there have been some studies such as the Draft National Policy on Criminal Justice (2007) that have suggested a holistic re-examination of the scope and justifications of existing statutory offences and sentence-ranges. It must also be reiterated that several important legislative changes in our criminal justice system have been triggered by questionable verdicts. Examples that readily come to mind are the Nanavati case in the early 1960’s where an acquittal in a ‘crime of passion’ ultimately led to the legislative abolition of jury trials, the Mathura Rape Case in the early 1980’s which led to the expansion of the definition of ‘rape’ to cover custodial circumstances as well as the prohibition on references to ‘past sexual conduct’ during trial, and in more recent times the Ruchika Girhotra molestation case which finally convinced the Law Ministry to push for an expansion of the definition of ‘sexual assault’. It remains to be seen whether the regrettable verdict given by the Raipur Court will trigger at least a piece-meal legislative change such as an amendment to the definition of ‘sedition’ under the Indian Penal Code. A more likely consequence could be the judicial invalidation of some vaguely defined offences under the Chattisgarh Special Public Safety Act, 2005 provided that the defence counsels choose to attack the constitutional validity of that law before the higher courts.