Saturday, January 08, 2011

Guest Post: Is the Binayak Sen Case really an anomaly?

This guest post has been contributed by Sidharth Chauhan, who is currently a graduate student at the University of Pennsylvania Law School.

The initial outrage at the conviction of Dr. Binayak Sen and two others for conspiracy to commit sedition and several other terrorism-related offences was 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 as well as in journalistic coverage (linked in a previous post by Arun). For those who may be interested, I have tried to summarise the shortcomings in the appreciation of the evidence in a longer version of this comment (available here).

While not intending to trivialize the grave consequences that will be faced by the defendants and their families, 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 that 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, 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 other ‘prisoners of conscience’ taking a backseat.

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. The trial judge has bought the prosecution version despite there being no admissible evidence to show Dr. Binayak Sen’s involvement as an intermediary and an extremely doubtful narration about the time and location of Piyush Guha’s arrest as well as his subsequent custodial statements. 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 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. 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.

The proverbial icing on the cake 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.

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 if the defence counsels choose to attack the constitutional validity of that law before the higher courts.
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