It is necessary to analyse this development as it is very important for the future of Indian democracy. There is a serious problem in India with the lower judiciary which does not seem to have any idea of its crucial role as a defender of human rights in a democracy. Especially in a democracy in which the majority of the people are not aware of their rights and are routinely oppressed by governmental and private oppressors. The attitude of the bureaucracy and the politicians in this country remains both feudal and colonial they frequently use and misuse the law to stifle dissent.
The higher judiciary shows some awareness of its crucial democratic role and that is somewhat of a relief as it frequently intervenes to reprimand the executive for its unjust behaviour. However, it is extremely expensive to approach the higher judiciary and meanwhile the accused have to suffer imprisonment due to miscarriage of justice at the lower level. Normally most poor people are unable to appeal and it is only when there are human rights activists fighting along with them that higher courts are approached. In fact the only way to effectively tackle the lower judiciary at present is to prolong cases through various means and postpone trials. This is the route we in the Khedut Mazdoor Chetna Sangath normally adopt and there are cases in which we are still trudging to court after more than 12 years. It is a pain but it is better than getting convicted as has happened now with the famous Binayak Sen case.
The problem is compounded by the fact that the entire Indian Penal Code, of which Section 124A is a part, is a colonial law imposed by the British in 1860 in the wake of the first war of independence of 1857 to ensure that such revolts did not take place again. Section 124 A was inserted in 1870 when the British found that the intellectual ferment against their rule was gaining ground and needed to be stamped out and has been used to incarcerate such illustrious freedom fighters as Gandhi and Tilak. The IPC and its sibling the Criminal Procedure Code (CrPC) were so efficient that the British were effectively able to prevent all kinds of rebellion from getting out of control thereafter. It is sobering to remember that the British themselves have a much more democratic penal law and procedure in the UK.
Thus, the IPC and CrPC are colonial laws that our Brown Sahibs saw fit to continue with after independence precisely because of their efficacy in controlling mass protests against unjust rule. Many mass movements after independence have petered out because of the continuous legal harassment of activists and members by the police. The UAPA and CGSPSA are even worse laws that have been enacted after independence to further strengthen the powers of the ruling class to rein in mass protests. Basic civil liberties are denied in these laws under cover of the excuse of fighting armed terrorism. It is possible to convict people under these black laws without there being any evidence whatsoever other than hearsay! Over and above this over the past decade the Supreme Court in various judgments has diluted the law on conspiracy so much that two lovers mumbling sweet nothings to each other can also be convicted for this (conspiring to increase the population of this country in the future!)
The immediate question, however, in the present case is not the broader and more important one of the appropriateness of these laws in a modern liberal democracy avowed to providing social and economic justice to its vast majority of under privileged citizens but of the narrower one of whether the conviction of the accused is justified under the aforesaid sections of the IPC, CGSPSA and UAPA. The chargesheet, the later examination and cross examination of witnesses and other evidence and citations of various relevant judgments passed by the higher courts do not support conviction under any of the sections and laws mentioned. One fails to understand how the judge after having found the charge of waging war against the state to be not proved, yet convicted the three for sedition when there was no credible document presented by the prosecution supporting this serious charge.
Moreover, the relevant portion of section 124A of IPC that defines a seditious person is - "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 the Government established by law in [India]".
Disaffection means - "A state or feeling of being dissatisfied with the people in authority and no longer willing to support them". Now by this definition the Bharatiya Janata Party and the entire opposition have been exciting disaffection against the central government over the 2G mobile spectrum allocation scam for over a month now and the Trinamool Congress Party has been exciting disaffection against the West Bengal Government over the same period and so all these should be charged for sedition. But it is only the people who are fighting for the rights of the poor who are being targeted despite the Supreme Court having repeatedly pronounced in several judgments that this colonial section should not be used to trample on the fundamental rights guaranteed in the Constitution relating to freedom of speech and expression and of forming associations.
Thus, the judge has passed the judgment under pressure from the executive in a vindictive manner. In fact if the ruling classes could have their way they would have most people in jail doing free hard labour for them. That most poor people in this country nevertheless walk free is because there are not enough jails.
Obviously the verdict will be challenged in the higher courts. The case as a whole will be fought tooth and nail as false cases of this kind jeopardise broader human rights. However, there is a serious need to do something to repeal anti-people laws like these and to sensitise the lower judiciary to its crucial role as a defender of human rights independent from the executive. Otherwise the executive and especially the police will go on targeting the poor and the activists who organise them and stuff them into jails. If justice is to be delivered to the poor in this country and those activists who help them in their fight for this, then the whole judicial system from the lowest to the highest level has to be separated from the executive and funded independently directly from the Consolidated Fund of India. The lower judiciary has to be told to critically review all cases brought before it by the police at the stage of framing of charges under section 227 of CrPC. Section 172 of the CrPC should be amended so that entries in the case diaries and Section 91 should be amended so that the daily logs of the police station and the time and place of recording the evidence can both be made available for scrutiny to the accused for tallying with each other at the time of framing of charge. If there are inconsistencies as there are bound to be in the case of framing of false cases by the police then the magistrates should dismiss the case at this stage itself as provided for in section 227, instead of going through a prolonged trial wasting public money and harassing the accused.
This is a tall order no doubt but this demand needs to be publicly made and brought into the ongoing debate on judicial reforms if a vibrant grassroots democracy is to thrive in this country.