Mr. Vaiko’s conviction for sedition and the sentence imposed by Tamil Nadu Sessions Judge - Some reflections

1. The offence of ‘Sedition’ as defined under section 124A of the IPC, has been receiving attention periodically. Earlier some very illustrious personalities like Bal Gangadhar Tilak and Mahatma Gandhi were prosecuted and the latter was even convicted of the offence. But then, there is a major difference between then and now. Then, the inhabitants of India were under the authority of British Crown. Now we have our own elected representatives. All Indian citizens have a duty to respect the Indian government, however much they dislike the executive, legislative or even judicial actions of the Indian polity. It is really unfortunate that an accomplished Parliamentarian like Vaiko lost sight of this Fundamental Duty (in a liberal sense of the term!)

2. Mr. Vaiko has been a very passionate supporter of Tamil Eelam and LTTE. It was rumoured at one-point that LTTE wanted to bring about a change in the leadership of DMK (Dravida Munnetra Kazhakam, a dominant party in Tamil Nadu). LTTE believed that if Vaiko were the head of DMK, he would facilitate the formation of Tamil Eelam at an early date. Vaiko was expelled from DMK on the suspicion that Vaiko was aware of the LTTE plan. Thereafter, he founded MDMK. To begin with, he fought elections on his party’s political strength. After realizing that he was no match to the influential DMK and charismatic ADMK leaders, he has had electoral alliances with all the political parties (National and Regional), at different points of time. He has had a reasonable success in Tamil Nadu politics. His party legislators were once part of the Union Cabinet. He continues to draw an MP’s pension and now he has become a member of the Rajya Sabha with the support of DMK. In the past, DMK and ADMK have been at the receiving end of Vaiko’s tirades. Ironically, the complaint in question was lodged when DMK was in charge of Tamil Nadu’s Law and Order administration. Dr. Manmohan Singh, who is undoubtably one of India’s better Prime Minister, bore the brunt of Vaiko’s incendiary speech. It is another matter that this complaint was pursued, prosecuted and resulted in his conviction during ADMK’s regime. Mr. Vaiko at that point of time was not aware that his present entry to Rajya Sabha is facilitated by an alliance to which the Congress (I) is also a party.

Constitutionality of Section 124A of IPC

3. It is fashionable for liberal, influential intellectuals to assert that section 124A of IPC (which states, 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, a shall be punished with 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) is a draconian provision. Authors like Ms. Arundhati Roy take the view that in a truly democratic society, the oppressed population have a right to secede if that is the only way out. Apparently, even the supporters of Tamil Eelam justify a separate Tamil Eelam state only because the chauvinistic Sri Lankan government spear-headed by the Sinhala Buddhist clergy has repeatedly made sure that the Tamils in Sri Lanka can only be second-class citizens with very minimal civil, political, and economic rights. But one has to recognize that India today, unlike 50 years ago, is a more liberal, secular, democratic state not withstanding some present-day aberrations and challenges. Even now, 50% of the people are illiterate. Not very long ago, different religious majority in specified areas resulted in India being partitioned.  One of our neighbours used the aspirations of the Sikh population to create a state of Khalistan. In Jammu and Kashmir, a different religious identity is the dominant cause of Armed Conflict or war for more than 60 years. Even the members of the majority religions like the Hindus are hopelessly divided into different castes and sub castes. Lower educational levels and prevailing insecurities have pitted groups of the population against each other. Political scientists will also argue that in a classical copybook federation, the individual states have a right to secede. They will quote the case of Québec. But countries like the United States, right from the very beginning have been very clear that once there is a federal union, it is like a (‘marriage without divorce’). At best, there can be a autonomy with equitable distribution of political powers. In fact, the United States fought a full-fledged Civil War to fully understand this reality. India, also, has had such undeclared civil wars in different states during different points of time. Even now, there are parts where the writs of the Union of India are dishonoured and not respected. In this situation the Supreme Court has no option but to declare this provision constitutional and still expects that this provision will be used most sparingly and definitely not in a vindictive manner.

4. Hence, it would be improper for a lawyer to re-examine the question of constitutional validity of section 124A of IPC. But one should critically look into the following questions:

A. Whether Mr. Vaiko’s prosecution was justified under the then prevailing laws?

B. Did he get a ‘Fair Trial’ under laws?

C. Whether the investigators (Tamil Nadu Home and Police Department) treated Mr. Vaiko with kids gloves on the ground that Mr. Vaiko is an influential politician?

D. Whether the available evidence warrant the conviction of Mr. Vaiko?

E. Now that Mr. Vaiko has been convicted for sedition, will it be morally, legally correct for him to take the oath as a Member of Parliament?

F. Was the sentence imposed on him %  is fair and adequate?

The Actors and the Fact situation behind.

5. A.  It is interesting to note that the prosecutor and the judge were women. It is essential to remember that between the year 2000 and 2009, and even later,the LTTE was a prohibited terrorist organization not only in India, but also in liberal political democracies such as Canada, Australia, European community and big powers such as, United States of America, China and Russia.

B. Notwithstanding the denial by Tamil Nationalistic groups, LTTE was behind Rajiv Gandhi assassination.

C. At that point of time LTTE was actively involved in Global Drug smuggling, employment of anti-personal mines, use of forced abductions, using civilians as a Military shield and employment of child soldiers.

D. Sri Lanka tried to subjugate democratic dissent. The Buddhist clergy suffered a visceral hatred for other religious denominations such as Islam, Hinduism and Christianity.

6. As part of the foreign policy, India had no other option but to support the sovereignty, unity and territorial integrity of Sri Lanka besides ensuring that the ethnic Tamils in Sri Lanka are not discriminated against. Thus, when the LTTE was defeated in a genocidal war, Mr. Vaiko made the following points in the impugned speech. In the words of the learned trial Judge, the speech of Mr. Vaiko contained the following seditious statements;

[a. Tamil Eelam liberation pursued by LTTE is not over. It will continue. Tamil Nadu will provide its voice (support?) to that end.

b. The Indian Government provided Sri Lanka radars, missiles, multi-purpose launchers, cannons, guns besides buying weapons from Pakistan, China, Iran and Eastern Europe to pursue the war against LTTE.

c. In this book, I have clearly mentioned that Mr. Prime Minister, that you are responsible for every drop of blood that is shed by each and every Tamil and your government is responsible for the death of every male and female. The setback to the LTTE today is mainly due to the treacherous act of Indian Government. What is the object behind it? This treachery manifested by the imposed Indo Sri Lankan accord is the reason for Dilipan’s death and the death of twelve other Tiger Army generals including Kumarapa and Gunandhan is the Union of India.

d. It is an atrocious act of Indian Government. It is dishonest. Who is the Indian army to remove landmines? It is for killing our young people.?

e. LTTE was defeated because of the military plans framed by the Indian Government with global support.

f. Government of India has been supporting the murderous Raja Pakshe for more than five years and hence we have a duty to explain to the Indian public the traitorous acts of Indian Government.

g. Hence, the youth in Tamil Nadu should support the emergence of Tamil Eelam

h. Till the ethnic Tamils create a separate Tamil State, we will support them vocally and we’ll also get the support of the public in all possible ways.

Course of Trial

7.In support of the case, the state of Tamil Nadu examined 9 witnesses and nine documents were marked in evidence. Most of the witnesses were government servants. Even Mr. Vaiko’s defence team did not contest the statements that were attributed to Mr. Vaiko. They did not examine any defence witness. It is interesting to note that originally the State of Tamil Nadu wanted to prosecute Mr. Vaiko not only for section 124A of IPC but also under section 153A of IPC (promoting enmity between groups on religious, linguistic, or ethnic grounds). At the time of framing charges, the charges under section 153A of IPC was dropped. Vaiko’s defence team contested the validity of the sanction and admissibility of prosecution Ex P 1 which is the official report based on his shorthand notes. But subsequently, the defence team extensively relied upon the Ex P1 for vindicating Mr. Vai Gopalaswamy’s innocence. Hence, the court had no difficulty in accepting that EXP1 was an admissible and credible legal document. During the Statement of Accused under Section 313 of CrPC, on being questioned by the court, Mr. Vaiko sought to downplay his allegations against Union of India. He attributed responsibility to the Sri Lankan government. Surprisingly when the court found him guilty and wanted to hear Mr. Vaiko or the quantum of sentence, he did not pray for any leniency. It is evident by paragraph 107 of the judgment which states ‘Questioned and the accused sought for lenient punishment.’  (Quote includes striking off)    

Was the dropping of charge under section153A of IPC justified in these circumstances?

8. While analysing the nature of the statements made by the accused, the learned judge rightly points out that each of the statements cannot be considered in isolation. Each of these statements has to be taken together and the entire speech has to be taken as a whole in order to appreciate the gravity of the above statements. What the court did not add is that the entire statement had to be considered in light of section 57 of the Indian Evidence Act which states that the court shall make judicial notice such a fact which includes matters of public history, literature, science, or art. Sometimes it will be incumbent on the prosecution to request the court to take judicial notice of the past behaviour of the accused. In the past, the accused, Mr. Paza Nedumaran, Kolathor Mani, Dr. Ramdas etc. have made no secret of their support to LTTE and the formation of Tamil Eelam state. True, at that point of time even India’s RAW and the former Tamil Nadu Chief Minister were ardent supporters of LTTE. But after the tragic assassination of Rajiv Gandhi the LTTE getting proscribed as a banned organization, the entire legal situation changed for the Tamil Nadu police and trial judiciary. If some people continue to support LTTE, and formation of Eelam, it is a real threat to the sovereignty, unity and territorial integrity of Sri Lanka which the Union of India had promised to uphold. In other words, what Pakistan did to Indian Khalistan and Kashmiri separatism, these groups are doing with Sri Lanka. To me, it would be an offence under section 125 of IPC which states ‘Whoever wages war against the Government of any Asiatic Power in alliance or at peace with the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.’  True, these leaders did not, as such, participate in the acts of war. But nevertheless, they are abetting the waging of such a war. Incidentally, this section also carries a maximum sentence of imprisonment for life. It is surprising why the Legal Remembrancer of the Tamil Nadu Home Department did not consider this option. As far as Mr. Vaiko is concerned, it is known that he had earlier violated the immigration laws of India and Sri Lanka. The judgment interestingly is silent on the past conduct of the accused. True, in criminal cases, as a general rule, evidence relating to past bad conduct of the accused is not really a relevant fact. But when the accused contended in defence that these statements were made to influence the Indian Government policies (vis a vis) the Sri Lankan Tamil problem, the prosecution should have let in some evidence on this. The main object of the Union of India is also to ensure that the Tamils in Sri Lanka are treated with dignity and that they enjoy a political and social environment which will help the effective realization of their civil and political rights. These and similar acts in Tamil Nadu make the position of Union of India unenviable. So long as belligerent statements are made from Indian soil, Sri Lanka will feel that the threat of the LTTE is real and continuing. The Sri Lankan government has to grapple with the problem of the chauvinism of the Buddhist clergy while it tries to grant fair treatment of Tamils in Sri Lanka. Hence, these statements are neither in the best interest to Sri Lankan Tamils nor will they promote chances of their congenial treatment in Sri Lanka. Hence Vaiko’s statements have caused great damage to Indian foreign policy objectives.

9. It is not without reason that successive governments in Tamil Nadu have been treating Mr Vaiko with velvet covered kids’ gloves. Mr. Vaiko and his party MDMK have always been enigmatic in forming their political alliance. Like most politicians in Tamil Nadu, Vaiko also negotiated with opposing and dominant political parties at the same time. Hence, during one General Elections, Mr. Vaiko was left without political partners, and had no other option but to boycott elections. He also tried a Third Front in Tamil Nadu after grudgingly accepting the political leadership of actor Mr. Vijaykant. That experiment did not bring him any political dividends. After opposing Dr. Kalaignar politically, he had no other option but to make peace with DMK. Apparently, it had been very beneficial to him and his party. Currently, (in the Indian Parliament), they have two representatives, one in the Lok Sabha and another in the Rajya Sabha. In fact, even before the just concluded parliamentary elections, he explored political alliances in a non- BJP, ADMK faction led alliance. Thus, irrespective of the party in power in Tamil Nadu, Mr. Vaiko has been getting more than favourable treatment.

Was Quashing of the Charge under Sec 153A IPC justified?

10. If we analyse the case docket of this case, he was also charged for an offence under section 153A of IPC (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc., and doing acts prejudicial to maintenance of harmony). However, the charge under section 153A was quashed during the pre-trial process. The state of Tamil Nadu in its wisdom decided not to pursue an appeal. But anyone who had followed the developments in Tamil Nadu after the defeat of LTTE, will be aware that Mr. Vaiko and similarly placed political personalities tried to initiate a vicious political campaign against people of Sinhalese ethnicity. They made successful threats (direct and indirect) to the Sri Lankan ethnic groups. When the Indian air force sought to train a Sri Lankan pilot at an airbase in Coimbatore, these groups exerted pressure to discontinue the training. They made sure that no SriLankan sportsmen of Sinhalese ethnicity were hired by Madras based sports clubs. Undoubtly, these groups, by their acts, tried to increase the enemity and animosity between people of Sinhalese and Tamil ethnicity. Hence, to me a charge under section 153A of IPC would also be perfectly justified. It is important to note that even when Sri Lankan leaders came for pilgrimage to Hindu temples in South India, these groups have held political demonstrations. Thus, a Charge under section 153A of IPC against Mr. Vaiko should have been pursued to its logical conclusion.

Whether Mr. Vai Gopala Swamy got a fair trial under CrPC?

11. As required under CrPC, this sedition case was tried by a Sessions judge, a woman at that. The all men defence team availed all the procedural defences to discredit the witness and documents provided as prosecution evidence. His defence team did not submit anyone as a defence witness. They did not even provide video or sound recordings of the meetings. Though his defence team, disputed the admissibility of prosecution documents, they were not able to discredit the witness. Hence, the virtually ineffective defence team did not seriously dispute the fact that Vaiko made the statements which were attributed to him by the prosecution. Thus, the learned judge had no other option but to examine whether these statements are seditious within the meaning of section 124A of IPC. In fact, during the ‘Statement of the accused’ under section 313 of CrPC the judge enquired again as to whether he made the statements attributed to him , making the Government of India and the Government of Sri Lanka equally responsible for the defeat of LTTE and the genocide of innocent Tamils Mr. Vaiko merely said that his statements made the Sri Lankan government responsible and evaded any reply on Indian Government’s role in it. This, to me, is not a total retraction of his earlier statements but a hypocritical response to cover his follies before an Indian Court. Hence, the judge had no other option but to hold him guilty of sedition. True to his political spirit, Mr. Vaiko did not plead for any leniency in punishment. He is aware that leniency can be sought only if one genuinely repents the commission of a crime. Mr. Vaiko is aware that a longer, stiffer sentence will make him a political hero in Tamil Nadu, and he can hopefully cash in on this in future elections.

Whether the punishment imposed on Mr. Vaiko is fair and proportionate?

12. The learned judge in her wisdom thought it fit to impose a simple imprisonment of one year when the maximum imprisonment can be for Life. In addition, the judge also imposed a fine of rupees ten thousand which was duly paid. The judge, in all fairness, suspended the sentence for a period of 30 days to enable Mr. Vaiko to file an appeal at the Madras High Court. Mr. Vaiko has duly filed the appeal and his sentence of imprisonment has been suspended by the Madras High Court. Just prior to the nomination of Mr. Vaiko to the Rajya Sabha by the DMK led political alliance, the learned trial judge pronounced the judgment. Had the judge imposed a sentence of at least two years, Mr. Vaiko would have been disqualified from membership of Parliament even before his election to the Rajya Sabha. In fact, section of people believes that even though the sentence is less than two years considering that offence proved is sedition, morally, Mr. Vaiko does not have a right to become a Member of Parliament of the same country against which he committed seditious act. Mercifully, for Mr. Vaiko and Tamil Nadu the Returning officer did not reject Vaiko’s nominations. Hence, a political crisis in Tamil Nadu was averted and Mr. Vaiko did not make any political capital out of his conviction. Nevertheless, I believe that leaders of political parties who have themselves been elected representatives several times, and are drawing a sumptuous parliamentary pension, should be treated on a different footing from a card-carrying Marxist - Leninist or an indoctrinated, brainwashed religious fundamentalist who is supporting foreign groups.  Mr. Vaiko did not repent his crime and he never sought leniency in punishment. Hence, the judge should have granted a minimum sentence of three years considering that Vaiko is a trained post graduate and an experienced politician who knows the laws of the land. The government of Tamil Nadu should file an appeal seeking enhancement of Mr. Vaiko’s punishment.