Fabricating Evidence : The Case of Two Diaries.

The country that gave India its Sedition law (IPC-124A), United Kingdom, abolished it in its own territory in 2010 (January 12), whereas the same year in India it gained well deserved infamy. Rattled by the rebellion of the 1857 (Indian mutiny or first struggle for independence, depending on which side one were on), the colonial administration drafted Indian Penal Code (IPC) in 1860 and was passed into law in 1861; and its sibling, the Criminal Procedure Code (CrPC) in 1861 (Replaced in 1972). IPC laid out what is crime & its punishment, and CrPc, how to deal with it. Concerns of colonial rulers to keep the stirrings of freedom in “natives” under firm control obviously played a guiding hand in their formulations. The section 124A1870 defines Sedition : “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards 2 the Government established by law in 3[India], 4 shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”. British convicted both B G Tilak and M K Gandhi for sedition among others, but none of them got a life sentence. Government of Independent India has found more and ready use of sedition to silence legitimate dissent especially when it is of the poor, dalits, or adivasis. It doesn’t appreciate criticism or tolerate peaceful mass actions to resist its policies, which seek these already marginalised sections to make more sacrifices in the name of growth and development, when they have literally nothing more to give save except their livelihoods or lives. UK’s justice minister Claire Ward said, “Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today. Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom. The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom”. This last sentence may smack downright of arrogance or paternalistic attitude, which it is, but it very much sums up what the central and state governments in India are up to.
Dr. Binayak Sen’s (& not to forget businessman Piyush Guha and Maoist Ideologue Narayan Sanyal) case has attracted so much attention because of flimsy evidence, dodgy witnesses, contradictory affidavits, and in general supreme ineptitude of the prosecution’s case; and yet the judge could muster his wits to find them guilty of charges beyond reasonable doubt disregarding the pronouncements of higher judiciary and sentence them to a life in prison. Many articles have been written on this controversial judgement and the one by Ajai Sahni, Guilty Before Proven Guilty, has taken an able liberal-democratic account of this judicial monstrosity. Some, like Rajesh Singh in daily pioneer have found the uproar against the judgement, Defending the Indefensible, quite untenable. Anyone can judge for herself the quality of arguments presented in both the articles for which links have been provided. Chandan Mitra is a sitting BJP Member of Parliament and also an editor of Pioneer. That may explain why Pioneer is so supportive of the visceral hatred of Binayak Sen, Himanshu Kumar, and other activists working for the betterment of marginalized people that the State BJP government of Chhattisgarh harbours. Daily Pioneer like the central Home Minister, P Chidambaram, somewhat gratuitously advised the “accused” and their supporters to seek redress in higher judiciary. Gratuitously because under the present dispensation that is the only course open, lest the CG government were to admit it had fabricated the evidence to implicate Sen.
Judges are not infallible, and recourse to appeal is always open to correct a miscarriage of justice, unless of course it happens to be the last court of appeal. There is no problem in theory with this formulation that judicial injustice should be rectified only through judicial remedies; because after all, are we not fed up with malfeasance of the overbearing & nosey executive? But in practice it suffers from many infirmities, some of which are not even within the powers of judiciary to correct. ‘Justice delayed is justice denied’ is one obvious ill that ails judiciary. Often cases languish at the trial stage itself for years if not for decades. Appeals to the higher judiciary further prolong that agony of wait. If the “accused” has to wait out this period in prison as an under trial, then he is punished even before the final judgement is pronounced. Dr. Sen was well-known & respected for providing healthcare access to the poor tribes in Chhattisgarh for past 30 years. He was also the secretary of the Peoples’ Union for Civil Liberties (PUCL) of the State Unit at the time of his arrest. Soon after his imprisonment in jail as an under trial, voices of disapproval began to rumble about falsely implicating him in the sedition case. He had documented in his role as a human rights defender the excesses of the government sponsored vigilante outfit, Salwa Judum that was targeting wholesale tribal villages in the name of fighting Maoists. It exposed the lie of the government that Salwa Judum is a popular uprising of the adivasis against the Maoist atrocities and that earned him its wrath. Once this became clear, a campaign began to which many renowned persons from different walks of life lent their support to demand his release on bail. Yet, it took two years for Sen to be released from prison on bail and that too at the behest of the Supreme Court, which also set a time limit by which trial court was to pronounce its verdict. If this is what happened in case of a high visibility case, one can only imagine what would be the fate of lesser mortals. The long and torturous legal grind through which the “accused” is put, itself acts as a Punishment by Trial. When even genuine cases shouldn’t languish in the judicial labyrinth like this, the plight of those who are falsely implicated would be undoubtedly devastating. Adding insult to injury, the cost of litigation are beyond the scope of most. Defending Dr. Biyanak Sen at the trial stage has run up a bill of Rs. 2.3 Million, and an estimated Rs. 5 million will be required at the appeal stage according to the Christian Medical College, Vellore, Alumni Association, who raised the earlier funds. How many people could bank on such support when they get into trouble with the government, which sees them as foes for doing the work that in fact the government should have been doing? Law therefore tends to reside on the side of moneybags, who are able to afford the fat fees of the best lawyers and have ample left over to grease the wheels of government machinery to fast forward the “justice”. Another problem is that subordinate judiciary sees itself as an extension of executive rather than fiercely guarding its independence. It is emasculated by its dependence upon the executive branch for the all resources it needs, whether for functioning of the courts or for the wellbeing of its staff. So when cases are brought up before the judiciary for framing charges, genuine or false, it is willing to play the ball instead of weighing the “evidence” for consistency, reasonableness, and the test of ‘beyond reasonable doubt’ – a higher standard of proof demanded in criminal trials. Lastly, like in the case of the executive, there is total absence of accountability, in fact more so, in case of the judiciary, even if mala fide is patently established. Lack of accountability frees reckless & self-serving behaviour.
The filing of patently false cases would not have attracted so much ire if it was a one-off occurrence, but seems to have now assumed truly pandemic proportions across India. Mostly poor people resisting assault on their livelihoods and activists working with them seem to be falling prey. Gujarat Police have accused five activists in FIR 1-37/2010 Police Station Kamrej, Surat Range of sedition among other charges; cases filed against 5 trainees of Dalit Human Rights monitoring program of People’s Watch in Tamilnadu; West Bengal police filed several cases against an activist for his exposing custodial torture and other human rights atrocities, Rearrested on charges of sedition after release from prison in a case under Jammu & Kashmir Public Safety Act on High court’s orders; and so on such chronicling can continue. This pan India pattern has emerged over the past few years in consonance with the people’s movements gathering steam all over the country in opposing the escalating & forcible grabbing of resources, जल, जंगल और जमीन (water, forests, land), by the local & global capital,  and actively facilitated by state governments for obvious pecuniary benefits of the politicians. While the pattern is new, the trick is old. The conditions that facilitate such large scale abuse with reckless abundance need urgent attention. For one, the abuse continues due to foregoing infirmities in the judicial system. Much has been said and written about cleaning the Augean-stables of Indian Judiciary, but until that happens government extracts maximum advantage by falsely implicating activists and organizers of peoples’ movements in legal cases, where they remain entangled and immobilised for years. It is seen as a potent & ready weapon for silencing dissent. Interestingly, the police who are working at the behest of their political masters know that there task is easy. They don’t have to actually prove any case. All they need to do is that invoke some serious sections of IPC against inconvenient people, plant or fabricate some evidence to help the charges made, gather some professional witnesses to give “testimony”, and get a willing magistrate to frame the charges. The system does the rest. When some years down the line the accused is held innocent, it doesn’t matter. The purpose of neutralising her in the interim is well served. That is why police seem to be get away with some really shoddy work. Reform of judiciary will take long, but situation is so dire it brooks no delay.
Activists, who have been thus targeted and have learnt their lessons the real hard way, and public spirited lawyers, who represent them, have been really pressed hard by circumstances to come up with imaginative legal strategies. One is of course to use legendary lethargy of legal system, which otherwise hinders justice, for furthering justice by delaying prison sentence that the subordinate judiciary sympathetic to the local administration is likely to pass. This course extracts its own costs and is not without its trauma. Moreover, it’s of no use when nature of charges permits detention of an “accused” before & during trial until the judgement is pronounced. Such are the cases that are to be exclusively committed to the Court of Session and under section 209 subsection (b)(of CrPc) magistrate can remand the “accused” to custody during and until the conclusion of the trial. When the Investigative Officer (IO) completes his investigation of the case he has to file a report with the magistrate with requisite documents as those prescribed under section 173. The subsection (6) of this allows the IO to request in writing to withhold from accused any portion of his report including documents attached if their disclosure will harm the interests of justice or be inexpedient in “public interest”. This places additional burden on the magistrate to scrutinise all the evidence carefully, ask for any additional documents he deems are necessary to be scrutinized in the interest of justice, hear the submissions made by the prosecution & accused, and then arrive at an opinion whether to discharge the accused under section 227 if sufficient grounds do not exist to proceed against him or to frame charges under section 228 & commit the case to trial to Court of Session. Astute activists like Rahul Banerjee of Khedut Mazdoor Chetna Sanghat have observed what pivotal role magistrates can play to defend human rights by weeding out false cases at this stage. Every IO is mandated by section 172 of CrPc to maintain a diary of proceedings (or Case diary/ special diary) giving following information under subsection (1) : “Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation”. When activists are implicated in false cases, the IO has to create in the present the “events” & “evidence” belonging to the past. It is possible to cook up such trail in a case diary individually maintained by an IO as it is in his possession always. If it can be corroborated against another authoritative trail, then the lie can be nailed easily. Luckily such possibility exists, Banerjee avers, in the form of Station House Diary (other names are Roznamcha/ Daily logs) into which the substance of the first Information Reports and the daily movements of the police personnel attached to the police station are also recorded. Since station house diary is common to the entire police station and the events get recorded as they happen or soon after the information reaches, it is very difficult to doctor this document. Tallying these two diaries would be a very telling exercise as it would throw up inconsistencies and contradictions, especially when patently false charges are pressed, which the IO would be very hard pressed to explain under searching scrutiny. Even if the magistrate doesn’t do his job, the “accused” and his lawyer could certainly measure up to this task. But they can’t? And therein lays the twist in the tale. Subsection (3) of section 172 expressly prohibits such access, “Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court”, unless of course, “if they, are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer”. A thrust should be made to have “accused” and his lawyers an unfettered access to case & station house diaries once the investigations are completed. This would certainly minimize the incidences of implicating activists in false cases by making the job of police that much harder. At least it would teach them to desist from shoddy work.
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