The verdict by the Sessions Court in Raipur sentiencing Binayak Sen and two others to life imprisonment raises questions that are both political and legal. Section 124- A, on which the prosecution rested its case before sessions judge B.P.Verma, did not figure when the Indian Penal Code was enacted in 1860. This section was inserted a decade after the act came into force and historians agree that the insertion was done in order to deal with the expressions of nationalism (disloyalty towards the Crown as it was seen by the rulers then) across the country by then.
The insertion, intended to deal with nationalist expressions in a section of the newspapers at that time, was put to use against Bal Gangadhar Tilak in 1897. Tilak was charged of sedition for writing an article in Kesri where he eulogized Shivaji and blamed the British officers for the hardships imposed on the people of India in the context of the Plague. Tilak defended himself saying that he did not intend any hatred against the Queen and was only blaming those who administered India on her behalf.
Justice Strachey, of the Bombay High Court, who heard the case against Tilak relied on a definition of sedition by Sir Comer Petheram (in the Queen Empress v Jogendra Chunder Bose case). That ``disaffection’’ meant ``a feeling contrary to affection’’ to hold that ``if a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection in fact, produced by them’’.
Tilak was sentenced to 18 months in jail in that instance. Lokmanya Tilak was tried, a second time, under the same section of the IPC in July 1906. Justice Dawar’s sentence, this time, led to Tilak being deported to Mandalay. As an aside, it may be added that Tilak went on appeal against the sessions judge and that Mohammed Ali Jinnah was his lawyer in that case!
Section 124-A was invoked again in 1922 and the accused this time was M.K.Gandhi. The charge was that articles he wrote in Young India were seditious. Gandhi did not deny the charges. He, instead, argued that ``to preach disaffection towards the existing system of government has become almost a passion with me…’’. Bapu then said: ``The only course open to you, the Judge, is … either to resign your post or inflict on me the severest penalty, if you believe that the system and the law you are assisting to administer are good for the people.’’ Justice Broomfield bowed to Gandhi, noted that Gandhi had made his task easier by pleading guilty added: ``You will not consider it unreasonable, I think, that you should be classed with Mr. Tilak’’ before pronouncing the judgment sentencing Gandhi to six years imprisonment.
That was not all. Justice Broomfield went on to add that if the government later deemed it fit to reduce the term ``no one would be better pleased than I’’. Well. Justice Broomfield, in 1922, did not have the benefit of a judgment that would radically alter the definition of disaffection and the law on sedition. On January 24, 1962, Justice B.P.Sinha, Chief Justice of India, along with four other judges, redefined the scope of Section 124-A in the Kedar Nath Singh vs State of Bihar (AIR-1962-SC-0-955) to hold that the Section can be invoked only where the words, spoken or written, have the pernicious tendency or intention of creating public disorder or disturbance of law and order. The necessary ingredient of ``intention’’ alone makes Section 124-A renders the provision as falling within the exceptions to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution.
This was held and reiterated by the Supreme Court by Justices A.S.Anand and K.T.Thomas in the Bilal Ahmed Kaloo vs State of Andhra Pradesh (AIR-1997-SC-0-3483): That mens rea is a necessary ingredient for prosecution under IPC Section 124-A as much as in such other sections as 153-A and others.
B.P.Verma, Session Judge at Raipur, may not have to be aware of such personalities as Tilak and Gandhi. But then, for him to have been unaware of the judgments in the cases involving Section 124-A, which are all part of any standard book on the Indian Penal Code and to have glossed over the substantial changes in the law between the time Justice Strachey and Justice Broomfield sat on judgment and the Supreme Court judgment in 1962 in the Kedar Nath Singh case is indeed baffling to say the least. He must have known that Sir Comer Petheram (in the Queen Empress v Jogendra Chunder Bose case) on ``dissafection’’ is no longer valid and if Justice Strachey were to try Tilak or Justice Broomfield was to try Gandhi on another day after 1962, the outcome could have been different.
Binayak Sen may have been found possessing some literature that may have been published by the CPI(Maoist), banned under the Unlawful Activities (Prevention) Act, 1968. But to hold that as the basis to conclude that he was a member of that banned outfit (which is what Section 20 of the Act deals with) is to have stretched the scope of the Indian Evidence Act, 1872 beyond all canons. That Session Judge Verma did not find sufficient evidence against Sen under Section 120-B of the IPC and hence acquitted him of charges under that section is a relevant point here. In other words, the judge did not find sufficient evidence of conspiracy and yet decided to sentence the accused to life imprisonment is certainly bad in law.
All these and may other points will be raised in the Chattisgarh High Court soon. And the High Court is certainly the forum for that. Meanwhile, it will be in order to recall what M.C.Chagla, then was the Chief Justice of the Bombay High Court, said on July 15, 1956 while unveiling a tablet in front of the court hall where Tilak was tried and sentenced: ``It may be said that this conviction was a technical compliance with justice, but we are here emphatically to state that it was a flagrant denial of substantial justice…’’