Justice for 'Prisoner of Conscience' Dr Binayak Sen

By Bobby Ramakant, CNS
March 27, 2011
The author is a World Health Organization (WHO) Director-General’s WNTD Awardee 2008 and writes extensively on health and development through Citizen News Service (CNS). Email: bobby@citizen-news.org, website: www.citizen-news.org

(CNS): Dr Binayak Sen, a medical practitioner and a civil liberties' activist, has been sentenced to life imprisonment in Chhattisgarh. Amnesty International calls him a 'prisoner of conscience' because he never advocated violence and was a champion of human rights causes in the state but was unduly targeted by the state. Probably his stand for human rights exposing gross injustices meted out to tribal population by the state, and a report had irked the government which slapped upon him violation of two draconian laws: Chhattisgarh Special Public Security Act and Unlawful Activities Prevention Act (UAPA).

His wife Ilina Sen, who is a Professor at the Mahatma Gandhi Antarrashtriya Hindi Vishwavidyalaya in Wardha, was in Lucknow as a key resource person for a programme against domestic violence and women equality issues. "As I fight the long and painful legal battle to extricate Binayak from the clutches of the penal administration, I realize that this battle is as much mine as that of any Indian citizen. Today, at many levels and in many fora, the people of India are struggling for the establishment of accountability and transparency in our governance structures as befitting our status as the world's largest democracy. However, it is a sad reflection on our system that once a false case is registered in the name of security, it is almost impossible to turn the clock back, even if facts stare us in the face that indicate that the case had no basis. To this, if we add dimensions of face saving, prestige, and drubbing the nose into the ground of uncomfortable critics, we have Chhattisgarh and Binayak Sen" said Ilina Sen.

Binayak Sen has been convicted of sedition and of violating sections of the Unlawful Activities Prevention Act (UAPA) and the Chhattisgarh Special Public security Act and sentenced along with two others to rigorous life imprisonment. His application for suspension of sentence and release on bail pending appeal, has been rejected by the Chhattisgarh High court. His jail ticket notes his provisional date of release as 2028.

"The conviction has followed an unfair prosecution and prejudiced judgment based on confessional statement recorded, according to the judge, during 'preliminary investigation' before the first accused in the case was taken into police custody, thereby defeating the provision of inadmissibility of custodial confessions. In the absence of any visible crime, this first arrest and the so called 'preliminary investigation' become the 'incident' around which the case is woven. The charges framed are equally vague regarding nature, time and place of the 'crime'. Extensive and expensive police investigations (sadly beyond the orbit of the Right To Information (RTI) Act, 2005) into Binayak's (and Ilina's) homes, places of work and associates failed to provide any evidence other than social service in remote rural areas, and obviously was not brought on record" said Ilina Sen.

"The case against Binayak hinged upon his 33 meetings with jailed Maoist leader Narayan Sanyal, his supposed couriering of Sanyal’s letters and their passing on to Pijush Guha, through which letters, the death and destruction being carried out by the Maoists was supposedly given effect. Since the prosecution failed to produce even a single jail official or any other eye witness testifying to any letter or message, oral or written, being passed by Narayan Sanyal to Binayak Sen in their jail meetings, the verdict makes much fuss about certain entries in jail registers referring to Sen being Sanyal's relative, ignoring the defence contention that these entries were filled in by the jail officials, and not by either the visited or visitor, as apparent from the face of the record" said Ilina Sen.

On the contrary, all the applications Binayak Sen submitted to the jail officials, requesting a meeting with Sanyal, were written on the letterhead of his organization People's Union for Civil Liberties - PUCL (a Civil Liberties and Democratic Rights organization founded by leading Sarvodaya leader Jayprakash Narayan). These visits were duly permitted by the jail officials and transpired in their full view and hearing. "Binayak's own statement to the court gives a perfectly rational explanation for these visits and the way in which his intervention was essential in facilitating the hand surgery of Narayan Sanyal at the Raipur Medical College,, but this was not taken into account" said Ilina Sen.

"Binayak is also supposed to have had prior acquaintance with Sanyal and facilitated the hiring of a house by him. This is based on the testimony of a landlord who, while testifying to this fact also alleges that Sanayal was arrested from his house, which is contrary to the facts brought on record during this trial. Sanyal's arrest was in Andhra Pradesh according to the testimony of the arresting officer, and how a witness who perjures himself in one part of his testimony becomes a reliable witness for the other part, beats imagination" said Ilina Sen.

So what is the 'evidence' against Dr Binayak Sen? According to Ilina Sen, the 'evidence' against Binayak Sen in court is as follows:

- Hearsay evidence from police officers about Binayak's presence in naxal meetings, his supposed association with 'hard core naxals' who are not even named in any case anywhere in the country

- Supposed seditious literature pertaining to resistance of US imperialism and atrocities committed during the salwa judum seized from their house during police search

- Correspondence addressed to the ISI (not Pakistan's ISI but to Walter Fernandez, Director of Indian Social institute (ISI) in New Delhi)

- Correspondence with people bearing Muslim names constitutes the rest of the evidence

Authorities claimed Dr Binayak Sen is a 'fake doctor' because no stethoscope was found in his house. Should every doctor hang a stethoscope in his house as well? Does a gold medal from second-ranked medical institute in the country - Christian Medical College (CMC) Vellore, the 2004 Paul Harrison Award, Global Health Council's Jonathan Mann Award 2008, founding Shaheed Hospital in Chhattisgarh and serving tribal communities for close to thirty years are not evidence enough to give him due recognition as a medical practitioner?

"While weaving a narrative of sedition against Binayak Sen and other accused in the case, the Sessions court verdict violates a well laid judicial principle of the Supreme Court in matters of sedition. In Kedarnath Singh Vs State of Bihar the Supreme Court has held that the provision of sedition in the Indian Penal Code must be interpreted in a manner consistent with the fundamental freedom of speech and expression guaranteed by the Indian Constitution. In this regard the Supreme Court held that the offence of sedition, which is defined as spreading disaffection against the state, should be considered as having been committed only if the said disaffection is a direct incitement to violence or will lead to serious public disorder. No speech or deed milder than this should be considered seditious. The Sessions court verdict in the case against Binayak Sen and others fails to establish that the words or deeds of the accused were a direct incitement to violence or would lead to serious public disorder. This would be the case even if it was established beyond doubt that Binayak Sen had passed on Narayan Sanyal's letters to Pijush Guha, or Pijush Guha was likely to pass on these letters to other members of the CPI (Maoist), or that Narayan Sanyal was a politburo member of the CPI (Maoist)" said Ilina Sen.

"Both the trial court as well as the appellate court (while passing and upholding the maximum sentence for sedition) have gone on record that the situation of violence and uncontrolled Maoist bloodshed calls for non application of any grounds for leniency in sentence. This is without any clear establishment that Binayak Sen had any involvement in any such bloodshed, in fact even the court does not allege this. How criminal justice can be based on the doctrine of lateral responsibility is mind boggling. Clearly the verdict and the sentence are both intended to make an example of a civil society activism, and to send a message to all of us who are asking any kind of questions. The issues in this case thus go beyond the case itself and the fight for justice for Binayak becomes the struggle of all of us for the Rule of Law in our polity" said Ilina Sen. (CNS)

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Posted on: March 27, 2011 07:47 PM IST