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A Critical Take on the Binayak Sen Judgement Mukund P Unny

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A Critical Take on the Binayak Sen Judgement Mukund P Unny A Critical Take on the Binayak Sen Judgement Mukund P Unny Inferior Court judgements are not generally topics of study for law students. And so, it usually does not get debated in the intellectual circles. Many lower court judgements are worth praise and several would be packed with flaws. The recent conviction of Binayak Sen on grounds of conspiracy to commit sedition and subsequent award of life sentence by a Raipur Sessions Court has raised many eyebrows, mainly due to the fact that it was flawed. The ground on which the noted human rights activist is convicted is still questioned. The Acts invoked for his conviction are Section 124(A) and 120(B) of the Indian Penal Code (IPC), Section 8(1), (2), (3), (5) of the Chattisgarh Special Public Safety Act, 2005; Section 39(2) of the Unlawful Activities Prevention Act, 1967. Binayak Sen has been in police custody since May 2007. Sen was arrested for couriering a Naxalite journal and letters from Pijush Guha to Narayan Sanyal, a suspected Maoist ideologue. The police, on searching Sen's house, found a postcard addressed to him by the jailed Sanyal, a letter from Naxalite Commander Barkade lodged in Central Jail Bilaspur addressing him as 'comrade', and eight CDs that show him conversing with women and children in the villages of Salwa Judum and Narayanpur. During the search, a letter written in English and one booklet containing a banned and objectionable write-up, as well as cassettes on Salwa Judum, and CPU were seized. Investigations stated that Sanyal, who is a member of the highest organization of the Naxalites-Maoists - the 'Politburo', executed destructive activities for the Naxalites with the help of Sen and Piyush Guha, which was found to amount to 'sedition'. The probe stated that through Sen and Guha, Sanyal had executed violent activities in the plains and urban areas, and was involved in dispersal of Naxalite propaganda in order to raise money. This led to the arrest of Dr Binayak Sen and accused Narayan Sanyal, through a production warrant. Evidence There is no concrete proof to adjudge that Narayan Sanyal is a Naxalite. The judge arrived at the conclusion that he is a Maoist on the basis of cases against him in other states, where he has not been pronounced guilty. Moreover, the main evidence that the prosecution has mounted against Sen and Sanyal are the letters and write-ups that the latter allegedly wrote and handed over to Sen when they met in prison. The letters, as the prosecution contended, were then given to Piyush Guha, who circulated it. However, the jailors at the prison have unequivocally stated that the conversation between Sen and Sanyal took place under police supervision. Sen was also physically examined before he left the prison. This proves beyond doubt that evidences recorded by the prosecution are fake. Guha, on the other hand, claimed that the letters have been planted by the police. The Judge, however, accepted the testimony of witness Anil Singh, a passer-by. The witness supposedly overheard a conversion between the police and Piyush Guha, who was already in police custody. According to the Indian Evidence Act, 1872, Guha's statement is void, as it was made while he was in police custody. To ascertain the conspiracy chain between Sen, Sanyal and Guha, the Judge relied upon forensic evidence testifying that the letters were indeed written by Sanyal. However, for them being in the possession of Guha, he relied solely on evidence put forth by police officers and the testimony of witness Anil Singh, whose versions were contested by Guha, but ignored by the Judge. The prosecution, however, could not prove that Sen ever met Guha. The hotel owner and manager, in whose hotels the police alleged that the two had meet, told the court that they had never Sen neither had anyone come to meet Guha. They were declared hostile by the prosecution. Thus, the triangle sought to be established by the prosecution - of Sen as the link between Sanyal and Guha - could not be established. It was also ignored that the police cited two separate places for Guha's arrest: one from Mahindra Hotel and the other from Station Road. Confusion also prevails on the place of Sen's arrest. Another proof, again of suspected origin, appeared in the form of a letter, a computer print out allegedly written by Maoists thanking Sen of his services in Chattisgarh and expecting for similar help in Orissa. The letter found no mention in the attested list of documents recovered from his residence on the same day. To prevent planting of evidence, all the material seized from an accused's house is supposed to be sealed in the presence of witnesses, before being taken away. Although the prosecution claimed this was done, the defence alleged it was not. Binayak Sen has had 33 meetings with Sanyal in prison. However, the Judge ignored the fact that he had prior permission of the Senior Superintendant of Police to do so. Moreover, the prosecution failed to produce even a single jail official or any other eyewitness testifying to any letter or message, oral or written, being passed by Sanyal to Sen in their meetings. The verdict makes much fuss about certain entries in jail registers referring to Sen being Sanyal's relative, ignoring the defence contention that these entries were filled in by the jail officials, and not by either the visited or visitor, as apparent from the face of the record. The Sessions Court has also not given plausible evidence whereby it can be stated that the accused have directly been involved in acts that endangered public order. It is not too ripe to give a comprehensive take on the entire judicial process, as the case is still within judicial purview and has not been adjudged by the Apex Court. The well wishers and followers of Sen will have to fight the case again in the High Court. Sudha Bharadwaj, Nandini Sundar, Manish Kunjam, and Mahindra Dubey have so far taken the case up for Sen. We will have to wait till justice is rightly delivered. ReferencesA Critique of Binayak Sen's Judgment. Accessed on 8 January 2011 at http://www.binayaksen.net/2010/12/judgement-and-its-critiqueDutta, Damayanthi. 2011, Justice Denied. India Today, January 10, Volume XXXVI, No. 2Law and Other Things. 8 January 2011. Accessed on 9 January 2011 at http://lawandotherthings.blogspot.com/2011/01/guest-post-is-binayak-sen-case-really.htmlPunwani, Jyothi. 2005, Trial of Binayak Sen. Economic and Political Weekly Volume XLV, No. 52. The author is a first year student at National University for Advanced Legal Studies, Kochi. He can be reached at [email protected] .
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