A Case Of Mistaken Identity: Guilty Until Proven Innocent

Will life imprisonment for two young human rights activists destroy people’s faith in the Indian judicial process?

Maulshree Pathak Delhi 

Dr Binayak Sen, Ajay TG, Prakash Ram, 6,000 nameless Jharkhand adivasis…and now, Seema Azad and Vishwa Vijay. It’s a long list of “dangerous Maoist leaders” whom the lower courts have found guilty of waging war against the nation, trying to topple the Indian State and establish a Maoist regime in the country. 

Are they indeed dreaded Maoist leaders? Are they plotting to kill their ‘targets’ and ‘class enemies’ or are they themselves victims of the complex layers of the Repressive State Apparatus? Are the impoverished tribals in the forests of Chhattisgarh and western Odisha truly the ‘number one internal security threat’, or is it a typical story of all options closed for the invisible masses on the margins, even as the State and corporates forge a formidable alliance? 

Indeed, are the alleged Maoists really victims of the ‘patriotic spirit’ of the judges, who, when confronted with an alleged Maoist, display a blatant disregard for established jurisprudential principles. And thereby categorically hold them guilty, often without paying much heed to the evidence available, the loopholes in the police version, or arguments put up by the counsels for the defendants. 

Innocent until proven guilty is the inalienable principle on which our criminal justice system is based. But a reading of the 65-page judgment delivered by a single-judge bench of a district court in Allahabad on June 8, 2012, makes it clear that this principle has not really been followed in letter or spirit. On the contrary, there seemed to be an unmistakeable belief in the mind of the judge that the ‘accused’ are a priori guilty of being active Maoist leaders. This was apparent from the ‘reverse engineered’ arguments the judge used to hold the editors of the Hindi monthly magazine, Dastak Nai Samay Ki (Seema Azad and her husband, Vishwa Vijay), guilty of (among other crimes) ‘waging war’ against the nation, and thereby sentencing them to life imprisonment. 

The details, as laid down in the judgment, based on an FIR, are as follows: On February 6, 2010, the Special Task Force (STF) received information that the activities of the Communist Party of India (Maoist) are on the rise in the states of Bihar, Jharkhand and Chhattisgarh. On the same day, a lady, Asha, who confessed to being a member of the CPI (Maoist), was arrested; she allegedly told the police that she, Vishwa and Seema are members of the CPI (Maoist). She also said that Vishwa is the head of the UP wing of the CPI (Maoist). A police team was set up to investigate their background and current activities. 

When the investigation team reached their home, it was told by the informer that they had left for the railway station. The two were found standing beside a ‘moped’ near Allahabad railway station. When the police asked their names, the man identified himself as Vishwa Vijay. According to the police, before searching him, they “searched each other” to determine that no one was carrying any mischievous or illegal item! It was found that he was carrying, in a bag (a detailed list is given in the judgment), pamphlets of the CPI (Maoist). Also recovered from the bag was Rs 30,000 in cash. The lady identified herself as Seema Azad, his wife. Pamphlets, a camera, and around Rs 5,000 in cash were recovered from her. 

The judgment says that when the police asked him, Vishwa told them that he was the head of the UP state organising committee of the CPI (Maoist), and it was his responsibility to organise party activities in the UP region. He said that his wife was an active member of the party. He apparently also said that it was the aim of the party to wage war against the nation, topple the government and establish a Maoist regime!

It says that Seema more or less corroborated everything Vijay disclosed. She also said that they were going to Kanpur for a party meeting;  she even apparently said that they wanted to topple the government to establish a Maoist regime in the country. According to the FIR, her actual words were… “Sasashtra yudh hamare maksad ki prapti ka ekmatra upay hai aur hum ise prapt karke hi rahenge… (Armed rebellion is the only means through which we can achieve our aim, and we shall not stop till we have achieved it)."

Para 6 of the judgment specifically says that “they were in possession of rashtra virodhisahitya” (anti-national literature), and it can be concluded that they were members of the CPI (Maoist). They were arrested under Sections 18, 20, 21, 23(2) of the Unlawful Activities Prevention Act, 1967 and  Sections 120, 121, 121A of the Indian Penal Code (IPC), 1860. 

Subsequently, a chargesheet was filed; the accused categorically denied the charges. The case was transferred from the STF to the Anti Terrorist Squad (ATS), who claimed that they have been inciting and brainwashing people to become Naxals and ‘wage war against the nation’. 

The case of the prosecution has essentially been built on the police version, the statements of the accused when they were interrogated , and the fact that Maoist literature was recovered from their possession at the time of arrest. 

No statement made by an accused to any police officer can be used against him in a court to prove his guilt and the confession made to a police officer cannot be used as evidence against that person while his trial is on

This case reaffirms that, often, the lower as well as higher courts do not keep in mind the principles enshrined in the criminal justice system which is meant to protect the rights of the ‘accused’. One such provision is Section 25 of the Indian Evidence Act, 1872, which runs thus: 

“Confession to police officer not to be proved: No confession made to a police officer shall be proved as against a person accused of any offence.” 

This Section is emphatic that no statement made by an accused to any police officer can be used against him in a court to prove his guilt and the confession made to a police officer cannot be used as evidence against that person while his trial is on. 

In this case, the only evidence based on which Seema and Vishwa were arrested was their ‘confession’ to the STF that they were active members of the CPI (Maoist).

Para 67 of the judgment proffers weird logic as to how Section 25 is not being violated. It says that the arrest was made only after the statement was made, and not during the making of the statement, and that they were also carrying Maoist literature. The reasoning given by the judge is seemingly illogical, it does not measure up to rigorous judicial standards, and it is clear that not much heed has been paid to the argument of the defence counsel. 

In the case of Arup Bhuyanvs State of Assam, the Supreme Court held that confession made to a police officer is admissible only in cases of TADA, and, as in this case, is not applicable (TADA has been repealed). Thus, Section 25 is still applicable here. It was observed by the judges that confession is a very weak kind of evidence. This is also because of the widespread and rampant practice within the police system in India to use third degree methods for extracting confessions from the accused. Hence, the courts have to be cautious in accepting confessions made to the police by the alleged accused. It was held that confessional statements alone cannot be the sole basis for the conviction of an accused. 

The district court judge sentenced Seema and Vishwa to life imprisonment under Section 121 of the IPC which provides punishment for waging war against the nation. It was held in the case of KamalKishorevsAmitabhBagchi and TohidMulla that, when in pursuance of one’s political beliefs one tries to overthrow the existing government by using violence, it becomes punishable under Section 121 of the IPC. The trial judge further observed that it was not necessary that the accused be found collecting men, arms and ammunition; rather, waging war against the government is the attempt to accomplish by violence any purpose of public nature. When a multitude rises and assembles to attain by force and violence any object of a general public nature, it amounts to waging war against the government. 

The argument of the counsels before the division bench was that if the books and reading material were indeed so provocative, then the learned single judge ought to have become a Naxal too. This argument was accepted by the judges and it was held that merely the possession of Naxalite literature does not amount to criminal offence. The court argued that every citizen has the right to profess ideologies at will and this is not a crime under the IPC. 

It has been held by various courts that mere possession of Naxal literature is not enough to prove that the accused is a part of that organisation. The Gujarat High Court held in the case of Vishvanathvs State that seizure of incriminatory material by itself, in the absence of any contact or connection with any banned terrorist outfit, namely the CPI (Maoist), cannot be said to be an activity prohibited by any law. Possession of such material without there being any overt act or actual execution of such ideas by itself would not constitute any offence. This principle was held by the Supreme Court while granting bail to Sen. Speaking to Hardnews at the Gandhi Peace Foundation on the occassion of the 37th Anniversary of the Internal Emergency of 1975, Sen said, " The judgment in Seema's case is devoid of logic and reasoning, similar to what the judgment in my case was." 

Thus, mere possession of Naxal literature does not constitute an offence. If possession can still prove membership of an organisation, then, it has to be conclusively established that not only was there membership, but that there was active membership of the organisation. In the case of Bhuyan, the doctrine of ‘Guilt by Association’ was disregarded by the Supreme Court and it was held that mere membership of a banned organisation will not make a person criminal unless he resorts or incites  violence or creates public disorder by violence or incitement to violence. 

In the case of Seema, neither has the prosecution proved active membership, nor has it proved that the acts of the accused were inciting people to spread violence. The only two things the prosecution built its case on were the statement made to the police officers, and the recovery of Maoist literature from them. It has been held in the case of Balwant Singh vs State of Punjab that even shouting slogans such as ‘Khalistan Zindabad’ and ‘Raj Karega Khalsa’ will not constitute an offence if no one has been incited by the slogans. 

The mere possession of Naxalite literature does not amount to criminal offence. Every citizen has the right to profess ideologies at will and this is not a crime under the IPC 

An interesting aspect is that, in para 67 of the judgment, the judge states that it cannot be held that the Rs 30,000 recovered from the accused was for use for Maoist activities —  merely because it was found in their possession! However, ironically, the same logic is not being extended to the possession of Maoist literature. 

Following the judgment, human rights activists and the People’s Union of Civil Liberties jumped to the defence of the couple. Seema is herself the secretary of PUCL in UP, and has relentlessly taken up the cudgels against injustices of various kinds, working on behalf of mining workers and farmers. Activists are certain that she has been implicated precisely because she took on powerful forces and vested interests. Interestingly, when the counsel raised this argument before the judge, it was dismissed due to lack of “sufficient evidence”. 

Civil society groups and intellectuals are also arguing that the mere possession of Maoist literature is no reason to brand a person a Maoist, in the same manner as reading a book on Gandhi does not make a person a Gandhian; or, reading literature on Osama bin Laden does not make a person a jihadi! 

There is  a strong need for judges to not let extra-judicial considerations come into play in the rational process of justice while deciding if a person is guilty or not. Surely, a strict parameter needs to be evolved which must transparently determine, with irrefutable evidence, whether a person is a member of a banned organisation, or merely a supporter or sympathiser. The wide distinction between the two needs to be borne in mind at all times, especially because it is the question of a citizen’s freedom and liberty — a fundamental right under the Indian Constitution. 

Surely, more evidence than the one shown in this case needs to be brought forth before a person can be condemned (to life imprisonment!) as an active Maoist leader and left to spend his/her entire life behind bars. The prosecution needs to establish its case beyond reasonable doubt so that such accused are not victims of brazen miscarriage of justice, and must, in the true sense, be deemed innocent, until proven guilty. Not the other way around.

This story is from the print issue of Hardnews: JULY 2012