(The News International, 3 January 2011)

by Praful Bidwai

An Indian sessions judge has disgraced the country’s judiciary by sentencing celebrated health and civil liberties activist Binayak Sen to life imprisonment. He held Sen guilty of sedition, no less, merely for passing on to others letters written by a suspected Maoist imprisoned in central India’s Chhattisgarh state, called Narayan Sanyal. Even this minor charge wasn’t established beyond reasonable doubt.

The trial followed the kangaroo court model – of reaching a predetermined verdict by substituting suspicion, surmise or conjecture for substantive evidence. The judgment has been condemned the world over by conscientious citizens – not least because Sen embodies the public conscience and civic courage.

The case against Sen, a Kolkata-based businessman (Piyush Guha), and Sanyal, was filed under Sections 124A and 120B of the Indian Penal Code on sedition and conspiracy for sedition, and other acts outlawing membership of and support to unlawful/terrorist organisations.

To pronounce the accused guilty, Judge BP Verma needed to establish beyond reasonable doubt that they indulged in seditious activities or conspired to abet them. He failed to do so. Of the 97 prosecution witnesses, all but one proved unreliable or turned hostile. The entire case hinged on the testimony of one person, cloth merchant Anil Kumar Singh, who claimed he had witnessed police seizure from Guha of three letters written by Sanyal.

Singh claimed to have overheard a conversation between the police and Guha, while Guha was in their custody, in which Guha said he was given the letters by Sen to be carried to top Maoist leaders. But statements made to the police in custody are not admissible as evidence. A mere passer-by, Singh couldn’t have known if the letters had been planted on Guha.

The judge accepted Singh’s hearsay as firm evidence. He made much of Sen’s 33 meetings with Sanyal over 18 months in his capacity as a doctor and People’s Union of Civil Liberties office-bearer. Several jail officials testified that the meetings were strictly supervised in the jailor’s room. Based on my September 2007 meeting with Sen, where at least two jailors kept a hawk’s eye on us, it’s hard to believe that any letters could have been smuggled out of the room.

Judge Verma ignored the fact that Sen has always opposed violence of any kind and has never been accused of a criminal act. Worse, Verma accepted contradictory accounts of the place of Guha’s arrest on May 7, 2007. According to Guha, he was arrested on May 1 at Mahindra Hotel and kept blindfolded in illegal custody for six days. The judge ignored Guha’s statements to a magistrate before whom he was produced on May 7.

The police swore before the Supreme Court in 2009 that they had arrested Guha from Mahindra Hotel. But they told the Sessions court that that they arrested Guha on Station Road. The discrepancy was explained away as a “typological error”. The judge uncritically accepted this and put the onus of proof to the contrary on Guha. This is legally impermissible.

Logically, the concerned policeman should have been tried for either filing a false affidavit in the Supreme Court, or for perjury in the Sessions court. Had Guha’s testimony been accepted, the entire case would have collapsed. Even the evidence that Sanyal is a Maoist leader is based on cases in other states, in which he hasn’t been pronounced guilty.

The prosecutor’s final argument was farcical. He started by quoting Marx’s Capital. He concluded with a claimed master-stroke – an email addressed to “Fernandes of the ISI”. He triumphantly declared: We don’t know who “Fernandes” is, but we know the ISI is Pakistan’s Inter-Services Intelligence agency.

It didn’t strike Judge Verma as absurd that links were alleged between the intransigently secular Maoists and the fanatically religious elements whom the ISI backs. In reality, the “Fernandes” is Walter Fernandes, a former director of the Delhi-based, Jesuit, Indian Social Institute.

The judge justified Sen’s life sentence on the ground that “the way that terrorists and Maoist organisations are killing … paramilitary forces and innocent Adivasis, and spreading fear, terror and disorder across the country … implies that this court cannot … give them the minimum sentence …”. So, the sentence was decided on political considerations, not legal ones.

In the 1962 Kedarnath Singh case, the Supreme Court of India held that sedition, defined as spreading disaffection against the state, must be interpreted in a manner consistent with the fundamental freedom of expression guaranteed by the Indian Constitution. It must not be used to muzzle dissent – which is why the colonial state introduced it into the IPC to be used against the Freedom Struggle. Sedition must involve direct incitement to violence or an act that will lead to serious public disorder. This emphatically doesn’t apply in the present case.

During the grotesque travesty of justice that Sen’s trial was, the police concocted a cock-and-bull story. The judge accepted it. Sen’s conviction is a huge miscarriage of justice and a judicial monstrosity worthy only of kangaroo courts in a Banana Republic.

The Sen case has become India’s L’affaire Dreyfus, which exposed anti-Semitic prejudices in French society and was a transformative moment a century ago. The Sen case will hopefully prove therapeutic for Indian society.

An appeal will of course be filed against Verma’s judgment in the Chhattisgarh High Court. But there’s no guarantee that it will overturn the verdict. The Chhattisgarh elite’s minds are poisoned by paranoia and rationalisation of a Maoist witch-hunt by a murderous state-sponsored militia, the Salwa Judum (call to peace).

The Verma verdict fits in with the militarist approach the government has adopted to the Maoist problem while letting off corrupt businessmen, politicians, scamsters, and those responsible for mass-scale violence – the anti-Sikh pogrom of 1984, the post-Babri demolition riots of 1992-93, and the butchery of Muslims in Gujarat (2002).

The official anti-Maoist strategy uses methods that are downright unconstitutional, illegal, and inhuman. It’s as if these were calculated to aggravate disaffection in the tribal belt – rooted in appalling social indices, chronic malnourishment, and state cruelty – and thus to help the Maoists.

Chhattisgarh has witnessed massive state excesses because of its abundance of natural resources which predatory capital wants to appropriate. To ensure this, the government must crush the Maoists and obliterate the distinctions between hardcore Maoists, their sympathisers, parliamentary Communists, Gandhians, civil liberties activists, progressive intellectuals, and even health workers. It muzzles people like Sen to demonstrate that it’s willing to be unreasonably brutal. This is the stuff of which Banana Republics are made.

The Communist Party of India alone has clearly condemned Sen’s conviction. The Congress, the Bharatiya Janata Party and the Communist Party Marxist have refused to do so – the BJP out of its machismo and suspicion of civil liberties, and the CPM, even more short-sightedly, because of its “Naxal problem” in West Bengal. The Congress says dismissing the verdict would amount to admitting that India is a Banana Republic. But that inverts all logic.

If the Congress has any sense, and unless it really wants to turn India into a Banana Republic, it should condemn the verdict and dismantle the entire structure of oppression built into the colonial law on sedition. The Verma verdict demands no less.