The case of the good doctor   28 December 2010

Raja bola raat hai, 
mantri bola raat hai,
court bola raat hai,
ye subah subah ki baat hai!

(The king said it was night. The minister said it was night. The court said it was night. It was early morning!)

On 24 Dec 2010, the District Court in Raipur in Chhattisgarh state of central India sentenced Dr Binayak Sen to life imprisonment. Given the flimsy nature of the evidence, to most it came as a shock; to the Indian state seeking to silence dissenting human rights activists and social workers, it was shot in the arm.

Targeting Dr Binayak Sen, a well-known civil rights and public health activist, has wide implications for democracy and civil rights in India. Dr. Sen is the National Vice President of the Peoples’ Union for Civil Liberties (PUCL), one of the most respected civil liberties organizations in India founded by late Jaya Prakash Narayan during the 1975-77 internal Emergency, the worst era in the history of post-independence India. Dr Sen’s work in the area of public health is well known; in fact, he was a part of the group which set up the Mitanin rural health care system for Chhattisgarh twenty years ago when the state was still under formation. He is a man for whose bail, twenty two Nobel laureates had appealed. For whose release, the British House of Commons had issued a motion.

Off the beaten track
Dr Sen completed his basic medical studies from the prestigious Christian Medical College, Vellore, in 1972. He was awarded an MD in Pediatrics by the same institution in 1976 after which he joined the faculty of the Centre for Social Medicine and Community Health at Jawaharlal Nehru University in New Delhi. There, he remained for two years before working on a field-based health programme at the Friends Rural Centre in Rasulia in Hoshangabad district of Madhya Pradesh, concentrating on diagnosis and treatment of tuberculosis.

A growing understanding of the socio-economic causes of the disease nudged Dr Sen to move to Dalli-Rajhara in 1981, the site of the captive iron ore mines of the Bhilai Steel Plant in central India. Initially, beginning with a dispensary, a group of doctors, Dr Sen among them, worked with the Chhattisgarh Mines Shramik Sangh, a trade union of contract workers in the mines. Along with the radical trade union leader Shankar Guha Niyogi, killed by the industrialists of Bhilai in 1991, Dr Sen helped workers to establish the Shaheed Hospital which practiced low-cost and rational medicine for the miners and working people of the area. Popularly known as 'bada' doctor, Dr Sen is remembered with fondness and affection by the people in the area. After a long period of work in Dalli Rajhara, Dr Sen worked to develop a health programme for the adivasi population in and around the village Bagrumnala in the present Dhamtari district of Chattisgarh.

Cracking down

Poster: Orijit Sen

In response to a summons, Dr Sen presented himself to the police and was arrested on 14 May 2007 under the Unlawful Prevention Activities Act, 1967 (UAPA) and the Chhattisgarh Special Public Security Act, 2005 (CSPSA). The draconian provisions of lapsed central laws like the Terrorism and Disruptive Activities (Prevention) Act, (TADA) and Prevention of Terrorism Act, 2002 (POTA) have been incorporated in the UAPA through an amendment in 2004 and in state laws such as the CSPSA.

Thereafter, sedition under Section 124 A of the Indian Penal Code, 1860 (IPC) appears to have been added to the charges against Dr Sen. The extreme prejudice caused by the mere allegation of sedition ensured the repeated rejection of his application for release on bail by all courts, beginning with the trial court and culminating with the apex court of the land. Thus, the presumption of innocence notwithstanding, Dr Binayak Sen had to spend two years in jail, including a stint in solitary confinement as an under-trial. Finally, the Supreme Court granted him bail on 25 May 2009. After his release, Dr Sen continued to focus on the pathetic health conditions of the poor, particularly the high level of malnutrition in adults and children.

Arbitrary and subjective
The Second Additional District and Sessions Judge, Raipur, convicted Dr Binayak Sen of sedition and criminal conspiracy on 24 December 2010 and imposed the maximum punishment of life imprisonment. Sedition is the most serious of the charges; however, Dr Sen also stands convicted of lesser offences under the UAPA and the CSPSA, with terms ranging from one to a maximum of five years of imprisonment.

A look at the principles of constitutional jurisprudence and criminal law in the context of provisions such as sedition will assist in getting a comprehensive picture of the trial of such offences. Laws against offences involving the curtailment of the most fundamental rights of life and liberty of an individual generally lay down precise and specific ingredients which have to be established before punishment can be imposed. For example, offences like theft, murder and dacoity are defined precisely as acts which constitute such crime, and there is little room for the exercise of arbitrariness and play of subjectivities.

In contrast, Section 124 A of the IPC titled 'Sedition' lays down that whoever by written or spoken words, or by signatures or visible representations attempts or brings into hatred or contempt, or attempts or excites disaffection towards the government established by law shall be punishable with life imprisonment. The explanations to the proviso exclude comments expressing disapprobation of government or administrative measures as long as they do not excite hatred, contempt or disaffection. This provision has been on the books since colonial times, and was used by the British to act against those whom they perceived as a threat to the Empire. After Independence, Parliament amended section 124A to insert the punishment of 'imprisonment for life' instead of 'transportation for life or any shorter term' but chose to retain the substantive provision.

The use of imprecise and vague phrases like disaffection – which literally means absence or alienation of affection – leaves great room for arbitrary use and for the play of subjective notions of the executive and the judicial officials. In fact, Mohandas Karamchand Gandhi, the father of the nation, at his trial for sedition in 1922 by the court at Ahmedabad declared the provision of sedition as 'the prince among the political sections of the IPC designed to suppress the liberty of the citizen'. Gandhi declared that preaching disaffection against imperial rulers had become his foremost duty. He pleaded guilty and invited sentence.

Just as in the case of Section 124 of the IPC, acts like 'terrorism', 'disruptive activities' and 'unlawful activities' have been defined in broad and vague terms under laws like TADA, POTA, UAPA and CSPSA. This leaves room for a pick-and-choose strategy by the executive in the use of these punitive laws. The phrases employed in such laws led to the provisions being used against peaceful protests by farmers and against agitations by workers. It also led to the targeting of minorities by those in power.

The broad and vague definition of the offences can be used to cover a wide variety of acts, which would not fall within sedition in the ordinary common-sense understanding of the term. The range of acts which can be brought into its ambit can be seen in the conviction of Bal Gangadhar Tilak for sedition in 1897 - he had published a poem about the murder of the Mughal general Afzal Khan by the Maratha king Shivaji  - and in the Bombay High Court verdict in 1910 which declared the publication of a photograph titled 'The Nation Personified' showing a self-reliant India wearing bracelets of self-rule (swarajya) and holding the sword of boycott (bahishkar) with the words Vande mataram (Hail, motherland) was seditious. Recently, in the context of the present agitation in Kashmir, young boys throwing stones at security forces have in some cases been charged with the serious crime of sedition. There have been instances of youth in Bihar being charged with this crime for blackening the face of a minister, a minor offence by any standards.

Infirm evidence
A look at the trial court judgment convicting Dr Binayak Sen illustrates the hazards of retaining provisions like sedition on the statute books. The principal allegation against Dr Sen is of passing three letters written by jailed Naxalite leader Narayan Sanyal to unspecified people in Kolkata. The fact that Dr Sen met Sanyal in jail several times seems to have caused a grave prejudice in the eyes of the court thereby, impacting the evaluation of the prosecution evidence. Dr Sen had formally applied for permissions for each of the meetings as the General Secretary of the PUCL, permissions granted by the jail authorities. In fact, the jailors deposed that all of the meetings were strictly supervised, ruling out the possibility of any letters being exchanged between Sanyal and Dr Sen.

The three letters were purportedly recovered from one Piyush Guha at the time of his arrest. According to Guha, the police detained him from Mahindra Hotel on 1 May 2007 after which they blindfolded him and kept him in illegal custody for six days. Guha said he was produced before a magistrate on 7 May 2007. The police, on the other hand, claimed before the Sessions Court that Guha was arrested on 6 May 2007 from Station Road along with incriminating letters in his bag. Besides being a grave violation of fundamental rights, illegal detention and confinement are serious offences under the IPC, yet the allegations made by Guha on this count were never investigated. The police affidavit in the Supreme Court, which opposed Dr Sen’s bail application, does reflect Guha's position, that Guha was arrested from Mahindra Hotel; however, this gross contradiction between the police version before the Sessions Court and the affidavit in the Supreme Court, which erodes the credibility of the prosecution story, has been passed off and accepted as a 'typographical error' by the trial court.

The sole independent witness produced by the prosecution to establish the arrest of Guha and the seizure of three incriminating letters from him is a cloth merchant named Anil Kumar Singh. According to the testimony of Singh, Piyush Guha, on being questioned about the letters at the time of seizure, said that Dr Sen used to visit Narayan Sanyal in jail and that the letters were given then. Under the law of evidence, 'hearsay evidence' is not admissible in court. However, under Section 27 of the Indian Evidence Act, 1872, in case of facts discovered as a consequence of information received from an accused in police custody, the information relating to the fact thereby discovered may be proved.

To take a hypothetical example, if A says B said to him, 'I have slit the throat of C and the knife is buried near the well'. If, as a result of the information, the knife is recovered from near the well, then the knife is admissible as evidence. However, the statement 'I have slit the throat of C” is not admissible as evidence in a court. In the present case, the letters could be admissible; however, the alleged statement from Guha that Sen said that the letters were given to him by Sanyal on the jail visits would be inadmissible. Despite this, the trial court has held the statement as evidence against Sen.

Quite apart from the issue of admissibility, the contents of the letter do not refer to or show or link to any acts of violence. This is important, because in post-independence India, the Supreme Court held that this section aims at rendering penal only such activities as would be intended, or have a tendency to create disorder or disturbance of public peace by resort to violence. For example, in 1995, the apex court which set aside the conviction of Balwant Singh and Bhupinder Singh observed that the raising of slogans like ; ‘Khalistan Zindabad’ and ‘Raj Karega Khalsa’ did not have any consequences such as inciting people to disorder and therefore, Section 124 A had no application in these circumstances. In the Binayak Sen case, even if the prosecution story were to be accepted in toto, it is doubtful that the act of carrying letters neither inciting nor resulting in acts of violence would amount to sedition in the context of the earlier apex court judgments. 

Extreme prejudice
 The prejudice caused by the mere allegation of sedition can be seen in the attitude of the court towards the prosecution's production of an unsigned letter, purportedly written by the Central Committee of Communist Party of India (Maoist), as having been seized from the house of Dr Sen. This letter is not mentioned in the seizure list prepared at the time. Neither has it been signed by the investigating officers, the witnesses to the search or by the accused Dr Sen, as is required by law. The letter was also not a part of the charge sheet received by Dr Sen in court. The aforesaid circumstances clearly indicate that an afterthought and subsequent plant by the police has been accepted on the specious plea that it was probably stuck to some other documents and hence, could not be signed by the investigating officers, search witnesses and Dr Sen.

The other 'evidence' the trial court relied on seems to include a statement from Inspector Sher Singh Bande, in which Bande states that the area under the Churia police station in adjoining Maharashtra state often hosts state and central Committee meetings of Naxalites, and that Dr Sen and his wife used to attend these meetings. The judgment does not mention any evidence produced to corroborate the allegation. In a similar vein, getting jobs and house on rent to help Shankar Singh and Amita Shrivastava, referred to as 'hardcore Naxalites', to open bank accounts has been held to establish the offence against Sen. The category of 'hardcore naxalite” is unknown to law in India. Individuals can be charged with various offences as defined in statutes, and are presumed to be innocent until convicted. However, police routinely refers to and uses terms like 'hardcore naxalites” to cause prejudice in the minds of the judge. In any event, persons in public life, especially social work, routinely help hundreds of people and cannot be held guilty of crimes even in cases where some of those individuals in need of help may have been accused of specific offences.

An attempt to silence
In addition to the work in the field of public health, Dr Binayak Sen, in his capacity as General Secretary, Chattisgarh PUCL, has been in the forefront of organizing numerous investigations and highlighting atrocities committed by the state-sponsored militia 'Salwa Judum” and by the police and para-military forces on ordinary people residing in the areas looked upon as hotbeds of Maoist activity by the Government. Aside from the allegation that he was conspiring to commit violent acts, Dr Binayak Sen throughout his long open public life – whether with Friends Rural Centre, Rasulia, which was focused on promoting natural farming; or at Kishore Bharti, an experiment in education; or the health work in Chattisgarh; or as a civil rights activist – has never been associated with or has advocated violence.

The choice of Dr Binayak Sen, a winner of international awards, for prosecution by the state would be really puzzling if the motive were not so obvious. The targeting of an individual like Dr Sen is not something initiated by a Superintendent of Police or an Inspector General of Police. It is but, undoubtedly, a high-level decision made by the powers-that-be to send a message to civil liberties activists to desist from highlighting atrocities committed by the state against people in Maoist-affected areas. Instead of starting a dialogue or addressing  inequalities in society that give rise to Maoist movements, it seems that the state is bent on breaking all forms of connection between the civil society and the Maoist rebels, as if to prepare a prelude to a military crushing, 

Rakesh Shukla is an advocate at the Supreme Court of India.