(Frontline, 15 January 2011)

by Praful Bidwai

THE Raipur Sessions Court has shocked the citizen's conscience by delivering a judgment that makes a mockery of fundamental rights. The judgment against human rights defender and health activist Binayak Sen has brought unprecedented disgrace and ignominy upon India's judicial system, and more generally, upon Indian society and politics. It will take a Herculean effort to roll back the personal, institutional, social and political damage that the verdict has caused. Merely overturning it in a higher court will not be enough.

Awarding life imprisonment to someone charged with an offence no greater than that of passing on letters from an undertrial prisoner to an allegedly extremist group's leaders should appear altogether revolting to a civilised mind. This violates the principle of proportionality between crime and punishment (or provocation and reprisal).

This principle is cardinal to all jurisprudence, international law and laws pertaining to war, which confronts society with extreme choices. Even when war is just, it must be fought justly, without disproportionate or indiscriminate force. But, as we see below, the charge of passing on letters was not established. This enlarges the verdict's injustice.

Equating the act of smuggling out jail documents with trivial content (for example, congratulating the Communist Party of India-Maoist on completing a party congress) with sedition, no less, requires the erasure of many critical distinctions between different degrees of association with a crime. Judge B.P. Verma practised just such erasure when he held Binayak Sen, Narayan Sanyal and small businessman Piyush Guha guilty of sedition and conspiracy to commit sedition under Sections 124(A) and 120(B) of the Indian Penal Code (IPC). They were all sentenced to life imprisonment, although they had committed no violent act nor conspired to do so.

This could only be accomplished by blurring the distinction between extremist leaders who preach and practise violence, and many other categories, ranging from harbourers and financers of extremists, to individuals who sympathise with their broad cause (though not specific actions), to those who defend their fundamental rights, to those who might indirectly help them survive — including shopkeepers who sell them groceries. (Petty traders in Chhattisgarh are regularly harassed by the police on this ground.)

The judge's acceptance of the sedition charge makes nonsense of the restrictive interpretation mandated by the Supreme Court so it would not be abused, as it was during the colonial period, to muzzle free expression. Sedition, defined as spreading disaffection against the state, was added to the original IPC and used against freedom fighters. Since the judgment in 1962 in the Kedarnath Singh case, the Supreme Court has repeatedly held that sedition must be interpreted in consonance with the fundamental right of the freedom of expression guaranteed by the Constitution. It must involve direct incitement to violence or a serious threat to public order.

In 1995, the Supreme Court quashed the conviction of two Punjab government officers who publicly raised pro-Khalistan, anti-India slogans. The trial court had sentenced them to one year's imprisonment, a far milder punishment than the three-year minimum under Section 124(A). But the Supreme Court rejected the claim that the act's consequences would prove harmful to India's unity. Similarly, pro-Khalistan leader Simranjit Singh Mann has been charged with sedition more than 50 times over, but never convicted.

Even if the charge that Binayak Sen carried Narayan Sanyal's letters to Piyush Guha – which Sanyal claims he was forced to write by the police – were to be established, the content of the letter must be analysed to prove that it amounted to abetment to specific acts of violence or furtherance of the Maoist strategy of armed revolution to overthrow the Indian state. The content does not remotely bear this out.

The charge was not proved. The “evidence” was the hearsay of the sole witness, cloth merchant Anil Kumar Singh (the other 96 prosecution witnesses proved hostile or unreliable), who claimed he had witnessed the police seizing Sanyal's letters from Guha. Anil Kumar Singh claimed to have overheard a conversation between the police and Guha while Guha was in their custody, in which he said Binayak Sen gave him the letters to be carried to Maoist leaders. But statements made to the police in their custody are not admissible as evidence, being presumed to have been extracted through coercion.

Forcing undertrials to write self-incriminating letters or planting articles on witnesses/accused is an old and despicable police trick. Anil Kumar Singh did not accompany the police before they allegedly arrested Guha. A mere passer-by, he could not have known if they planted anything on Guha. The seizure memo was not made on the spot.

It is hard to believe that any letters could have changed hands in the jailor's room during Binayak Sen's meetings with Sanyal in his capacity as an office-bearer of the People's Union for Civil Liberties. Several jail officials testified that the meetings were strictly supervised. This is fully in keeping with this writer's own experience. I visited Binayak Sen in Raipur jail in September 2007 with his wife, Ilina, with official permission. The jail superintendent and at least one constable kept a hawk's eye on our movements and conversation. Every magazine/newspaper brought for Binayak Sen was thoroughly screened. So, the story of a furtive transfer does not hold much water.

The judge was wrong to have accepted Anil Kumar Singh's hearsay account as irrefutable evidence and then gone on to deliver the maximum punishment to Binayak Sen. The judge had accepted two contradictory police accounts of the place of Guha's arrest on May 7, 2007.

The police swore in an affidavit placed before the Supreme Court in 2009 that they had arrested Guha from Mahindra Hotel. But they told the Sessions Court that they arrested Guha on Station Road. This 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.

Guha in his account says that he was arrested on May 1 at Mahindra Hotel and kept blindfolded in illegal custody for six days and produced before a magistrate only on May 7. This is corroborated by his Kolkata-based wife. Guha stated this to the magistrate. Judge Verma ignored the statement. Had Guha's testimony been accepted, the case would have collapsed. Even the surmise that Sanyal is a Maoist is based on cases against him in other States, in which he has not been pronounced guilty. This speaks of a cavalier treatment of evidence.


The verdict's significance can only be understood in relation to the socio-political climate prevalent in Chhattisgarh, where the State is waging an undeclared war on the Maoists and the people they claim to represent. Chhattisgarh was carved out of Madhya Pradesh a decade ago on the grounds that it has a substantial Adivasi population and great natural wealth, which could be harnessed for the “development” and empowerment of the tribal people.

Ten years on, Chhattisgarh has failed to fulfil either objective. Its stupendous forest and mineral wealth has been ruthlessly exploited by predatory capital without much benefit to the Adivasis, who remain both socially and politically marginalised. Chhattisgarh's social indices are among the worst in India, especially in the predominantly tribal districts, where female and male literacy rates are 13 and 30 per cent. Scores of Chhattisgarh villages have no literate people at all.

Today, more than half of Chhattisgarh's adult Adivasis are malnourished, with a Body Mass Index under 18. Chhattisgarh qualifies for the description of an area marked by a permanent state of famine or near-famine, the global threshold mark for which is 33 per cent. The health-care and education situation in the State is appalling. Even in some predominantly non-tribal districts of the State, no health-care centre, indeed even a clinic or a chemist's shop, exists within a 20- or 30-kilometre radius. Many Adivasis have been pitilessly uprooted from their ancestral habitat and forcibly integrated into the market by traders, moneylenders and forest contractors. The history of a complete and violent transformation of Adivasi society is recent, and the pace of forcible integration extremely rapid.

Forty years ago, when the writer first visited Bastar, it had no money economy worth the name. There was a distinct tribal culture, where people combined work and play; women did not cover their breasts; and everybody danced every night. Egalitarianism and local democracy prevailed. The legendary ghotul, where adolescents from the entire village spend every night together and explore friendship and intimacy before choosing a partner, was a flourishing institution.

Then came the traders and contractors working in collusion with forest and police officials. They systematically “underdeveloped”, Chhattisgarh to use an African analogy for European colonialism. By the late 1980s, Bastar had undergone something akin to the “enclosures” and forced commodification in Western Europe described as The Great Transformation by Karl Polanyi. The process took centuries in Europe, only a few decades in Chhattisgarh.

“Modernisation” and commodification, recently intensified by the spread of Big Business-run extractive industries, has unhinged the Adivasis and left them without moorings in their culture. Systemic violence is an integral part of their life. Meanwhile, the bureaucrat-forest-police-contractor-trader mafia has consolidated its tyrannical rule.

Law and order collapsed in tribal Chhattisgarh long before the Maoist violence of the past five to seven years. Deprivation and dispossession has driven many Adivasis into unstable survival, crime, drunkenness and fragmentation. But others have resisted the onslaught of predatory capital through social mobilisation, often under the Maoist banner.

The state has reacted to the resistance with savage force, both directly and by sponsoring the armed militia, Salwa Judum, whose ferocity remains unmatched in India. Both the State government's and, increasingly, the Centre's approach to the Maoist mobilisation in Chhattisgarh is viciously militarist and based on maximal force, often calculated to terrorise the non-combatant population into submission or severing its links with the Maoists, whom many see as their protectors against predatory interests.

The State's leadership, including Raman Singh, the Chief Minister, E.S.L. Narasimhan, until recently the Governor of Chhattisgarh, (a former intelligence officer) and Vishwa Ranjan, the police chief , fashioned a strategy which demands that the law of the land be violated to crush the Maoists – no matter what it takes, including illegal detention, abductions, sexual violence, severe beatings, torture, even murder, as in the notorious Gompad village killings. The approach is underpinned by a visceral, almost racist, prejudice that considers the tribal people sub-humans who only understand the language of violence. The state has deliberately restricted or barred people's access to public services on the ground that these would be abused by the Maoists.

Civil liberties defenders, public health activists, Gandhian social workers, progressive intellectuals, and even ordinary citizens concerned about appalling social indices and disempowerment of Adivasis, are anathema to this approach. They must be muzzled, banished and “taught a lesson”. That is why Gandhian activist Himanshu Kumar's ashram was razed and he was forced into exile. Young Lingaram Kodopi, with no history of radical activism or crime, was declared a dangerous extremist and tortured.

Binayak Sen falls into the “dangerous” category. He is especially targeted because he is internationally known. The police arrested him on trumped-up charges in 2007 under a raft of laws including the draconian Chhattisgarh Special Public Security Act.

So insistent was the administration on denying him bail for two years that even pleas from the highest quarters, including Prime Minister Manmohan Singh, were scornfully rejected by the Chief Minister. The Chief Minister, Narasimhan and Vishwa Ranjan had convinced themselves that Binayak Sen was a dangerous Maoist or a collaborator and must be “taught a lesson”. The Chhattisgarh High Court also refused him bail. Clearly, the ruling elite had held Binayak Sen guilty without trial. It was united behind the police in its witch-hunt of Binayak Sen.

The prosecution's case reflects this consensus. The remarkable sloppiness, and factual and legal inconsistencies with which it is shot through, bear testimony to its desperation to secure a harsh verdict against Binayak Sen – no matter that he has never been previously accused of any wrongdoing, leave alone crime, and has always condemned all kinds of violence, including the Maoists'.

The prosecutor became a laughing stock. He started by quoting Das Kapital to prove that Marxism divides society and preaches violence and ended by triumphantly discovering a link between Binayak Sen and Pakistan's ISI (Inter-Services Intelligence). In reality, this ISI was the Jesuit-run Delhi-based Indian Social Institute.

Instead of coolly analysing, discounting/dismissing the police case, the judge obliged the prosecutor and delivered a black mark of a verdict. The higher judiciary must undo this gross miscarriage of justice – not merely by overturning the verdict, but also compensating Binayak Sen for the privations imposed on him, including two years in jail, and psychological and physical suffering. Not least, it must penalise the police and the judge in an exemplary manner for disgracing India's democracy and judiciary.