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Binayak Sen case: “This is a trial the world should be watching”

From Tehelka Magazine, Vol 6, Issue 9, Dated Mar 07, 2009

The Shark Has Pretty Teeth

This is a trial the world should be watching. The story of Binayak Sen is a wake-up call for India

by Nawaz Kotwal

HUMAN RIGHTS activist and public health specialist Binayak Sen was arrested two years ago for being a member of an unlawful association. For good measure he has also been charged with ‘sedition’ and ‘conspiracy’ and waging war against the state. The police also added charges claiming he acted as a courier for the Naxalities. He is being held under the Chhattisgarh State Public Security Act and the Unlawful Activities Prevention Act — both ugly images of the repealed POTA and tools in hands of the state to silence voices of dissent.

Looking ahead Sen and his wife llina step
outside the Raipur district court
Photo : Shailendra Pandey
If one were to describe Sen simply, he would be a widelyacclaimed public health practitioner who served the tribals of Chhattisgarh for over two decades. Realising that the causes of ill health lay in malnutrition and poverty, Sen recognised that basic human rights needed to be bolstered in order to make ‘health for all’ a reality. Sen, also the President of the Chhattisgarh chapter of the People’s Union for Civil Liberties, has been vocal against police excesses, custodial deaths and fake encounters in Naxal infested Chhattisgarh and more recently, the Salwa Judum, a violent and indisciplined government-sponsored counter-Naxal effort. Today, he is paying the price of dissent.

So how did Sen get involved? In 2006, Sen helped Narayan Sanyal – an alleged Naxal ideologue — get medical treatment in Raipur jail. Sanyal was suffering from a wrist ailment needing immediate attention. Sen visited Sanyal in prison several times — always with the prior sanction of jail authorities and following every rule in the book. A few months later Piyush Guha, a businessman from Kolkata, was arrested in Raipur.

From Guha, the police recovered letters written by Sanyal to friends talking about plans to expand his work. The police extracted a statement from Guha stating that Sen smuggled the letters out of prison and gave them to him. Guha has gone on record denying having ever made such a statement. Till date, the police has not brought Guha’s confession on record.

Today, Sen stands on trial. It’s been a year and, from the way it’s proceeding, it worries me how much longer it’s going to take. Before I entered another hearing, I was asked my name, address, relationship with the accused and reasons for attending the trial. Earlier, I used to be asked if I was a Naxal sympathiser. Having attended trials elsewhere, I had not gone through this procedure. There was no order that said that this would be an in-camera trial. There was no reason for the investigating officer to hang around the court. The law guarantees to every accused the right to a public hearing, which necessarily means that the court shall be open to the general public. This principle is an important safeguard in the interest of society at large. It guarantees that the public is informed of how justice is administered and how decisions are reached. A public hearing affirms the independence, impartiality and fairness of the courts, thereby increasing general trust in the judicial system. In this case, any façade of independence was totally lost.

The trial never commenced before noon. The ‘fast track’ court’s time and the respect for the judge’s chair had to give way to the convenience of the jail authorities who could not bring the accused to court on time. At noon, a large closed van drove into the courtyard. Close to two dozen armed guards jumped out. One would think a dreaded criminal was held in the van. But 60-year-old Sen walked out. The armed guards escorted him to the courtroom. He looked weaker. But more than his body, his spirit had weakened. Three of the accused were cramped into a small box with no place to sit.

A supplementary chargesheet had been filed a few months ago, along with additional evidence of 47 witnesses added to the list of prosecution witnesses. This was a deliberate attempt to delay the trial. Judge sahib was, as usual, a silent spectator. The prosecution left no stone unturned to violate procedure. Numerous attempts, mostly successful, have been made to include evidence which, in the normal course, would be inadmissible. Judge Saluja could have objected. He didn’t. Tampered evidence came on record. It seemed a waste of time to hold the trial in a court.

Things are not much different in the High Court or Supreme Court. Sen’s bail in the High Court had been rejected earlier. At the Supreme Court, the judge did not merit giving reasons to reject the bail. It was a one-word order, “dismissed”. In December 2008, the High Court did not even admit his second bail petition. It felt that no circumstances arose which were convincingly different to merit reconsideration of bail. This, against a backdrop of the DGP of the state going on record to say, “Left to myself, I would have kept Binayak under surveillance, not arrested him.” But obviously, Sen is not Salman Khan or Sanju baba, or for that matter, even Pappu Yadav, a dreaded baddy who recently got bail for murder. Sen is an inconvenient voice of dissent that the state has decided to put away.

OUTSIDE OF court, Sen’s detention continues to draw protest. Shri Shri Ravishankar has written to the Chief Minister asking him to release Sen and standing guarantee for him. Amartya Sen has publicly stated that Sen’s incarceration has been a travesty of justice. During the same period Sen was bestowed with several awards. In May 2008, the Global Health Council honoured him with the Jonathan Mann award for Health and Human Rights. Over 20 Nobel Laureates from across the globe appealed to the Indian Government that Sen be allowed to receive the award in person. But Sen remained in Raipur jail.

Sen’s condition is deteriorating. His heart is not doing too well. He is hypertensive and suffering from an untreated prostrate ailment, needing medical care. He has asked the court several times to permit him private care at his own expense. The court will not grant it. Sen said to the judge, “Sir, my condition is deteriorating. I could suffer a heart attack any moment.” The judge was not moved. On the other hand, the police are making every attempt to make things difficult by restricting Sen’s visiting rights. Save family, no one is allowed to meet him. There is no procedure in the jail manual or Prisons Act which allows this. But it is still being done. The might of the state prevails.

Before I left I spoke to Sen. He asked me how the trial is going. Till date, there was nothing incriminating that had come up against him. But I still hesitate to comment. He was an enemy of the state and it is unlikely that the state is going to spare him. His conviction or acquittal will not depend on the evidence before the court. The struggle is a long one. Knowing that, Sen still believes in the system. He still believes that justice will be done. And I can only hope that he is not disappointed.

Kotwal is Coordinator of the Commonwealth Human Rights Initiative and part of Sen’s legal strategy team