The Binayak Sen story has been about sending out a message, not facts or justice. Kunal Majumder & Anil Mishra pick out the shocking holes in the case
ON 24 DECEMBER 2010, Dr Binayak Sen — a man who has now become a cause célèbre across the country — was sentenced to life imprisonment by a sessions court in Raipur, Chhattisgarh, for “conspiracy to commit sedition”. Sen had worked for 30 years with the tribal poor in the state both as a doctor and a human rights activist. According to the Chhattisgarh state, however, Sen is a dangerous Maoist leader who is a serious threat to national security.
There was a spontaneous surge of outrage in civil society and the media over this scandalous miscarriage of justice. But there was little that could be done. The State had timed itself well. It was a day before Christmas. The high court and Supreme Court were on vacation; most lawyers were away. It would be at least two weeks before Sen’s family could appeal. Enough time for the dread to sink in; the message to go out.
The case against Binayak Sen is so weak, a few days after the judgement, eminent lawyer Ram Jethmalani thundered that he would resign from the BJP if Sen was not released. But from the very beginning, the case has only been about sending out a message; not about facts or justice.
|‘If the high court in Chhattisgarh has its thinking straight and unbiased, it will overturn the decision on Binayak Sen’AMARTYA SEN
RENOWNED ECONOMIST & NOBEL LAUREATE
|‘I will be very happy to fight for him. Personally, I think the case is weak. I think Sen has been wrongly convicted. I would resign from the BJP if Sen is not released’RAM JETHMALANI
CRIMINAL LAWYER & BJP MP
|‘I feel that Sen is a very fine human being and because of this, the judgement against him needs to be reviewed’DIGVIJAYA SINGH
Three years ago, when many in the media were still sceptical about the rights and wrongs of Sen’s case and no one was ready to stand up for him, TEHELKA had done a cover story on him laying bare the fictitious case that had been concocted against the doctor (No Country For Good Men: The Doctor, the State, and a Sinister Case, 23 February 2008). Chhattisgarh Director General of Police (DGP) Vishwa Ranjan had admitted to TEHELKA then, “Left to myself, I would have kept Binayak under surveillance, not arrested him.”
On 27 December 2010, speaking to TEHELKA again after Sen was sentenced, he claims he was misquoted. “What I actually said was I would have kept Binayak under surveillance and nailed him with more concrete evidence.” Ranjan, who spent most of his career with the Intelligence Bureau is now the face of the Chhattisgarh government’s ‘war’ against Naxals.
But in the three years that elapsed between the two conversations, neither DGP Vishwa Ranjan nor the state’s prosecution team could come up with any clinching evidence. What they relied on instead was creating baseless paranoia. In its closing arguments, for instance, the prosecution argued that both Sen and his wife Ilina should be put away for life because, among other dangerous affiliations, they had links with the ISI. Their basis for saying this? An email from Ilina Sen to Walter Fernandes, director of ISI, which happens to be the Indian Social Institute in New Delhi!
This was not a stray gaffe. The whole prosecution case built against Sen is littered with such malevolent faux pax. In fact, the primary charge itself is ludicrous. On 19 December, during his closing arguments in court, special public prosecutor TC Pandya admitted that there is no direct evidence of conspiracy against Sen. But that did not stop him from having a thesis. This, in brief, is what it is. According to the prosecution, Binayak Sen, who is national vice-president of the People’s Union for Civil Liberties (PUCL) (set up by Jayaprakash Narayan in 1976 during the Emergency) had met the jailed Naxal ideologue Narayan Sanyal 33 times in prison, between 26 May and 30 June 2006. During this time he had smuggled out seditious letters from Sanyal and passed them on to tendu leaf contractor Piyush Guha, who was supposedly acting as a courier for the Maoists. Three of these letters were supposedly seized when Piyush Guha was arrested on 6 May 2007. Based on this, Pandya argued that Sen was trying to establish an urban network of the banned extremist group, the CPI (Maoist).
There is no direct evidence of conspiracy against Binayak Sen, admits special public prosecutor TC Pandya
However, none of this bears scrutiny. The three “seditious” letters are themselves ludicrous. They are addressed to a “Dear Mr P”, a “Friend V”, and a “Friend” and are unsigned. They could have been written by anybody and planted on Guha. In any case, their content is far from explosive. They complain about jail conditions, the onset of age and arthritis. They also congratulate P, V and Friend that the “ninth congress” has gone well and urge them blandly to expand “work” among the peasantry and urban centres. Sufficient basis to jail a doctor of peerless reputation for life? But that is not all. Even the jailers testified against the prosecution’s argument, saying there was no way Sen could have passed these letters on from Sanyal to Guha because their meetings were held under such close supervision.
There are other glaring discrepancies. After Sen was first arrested in 2007, the police had built such a miasma around him that he was denied bail twice both by the Chhattisgarh High Court and the Supreme Court. During the bail hearing in the Supreme Court, investigating officer BBS Rajpoot had claimed in his affidavit that Guha was arrested from Mahindra Hotel in Raipur, where he was meeting Sen. But when both witnesses from the hotel turned hostile, the prosecution suddenly changed its position. In the trial court, it claimed the police had arrested Guha on Station Road, near the Raipur railway station and that Mahindra Hotel had been a “typing error”! The court accepted this patently laughable assertion. The prosecution then introduced a new witness — Anil Kumar Singh, a clothes vendor — who they claimed was “passing by” when Guha was arrested on Station Road. Singh said he had “heard” Guha telling the police during his arrest on Station Road that Binayak Sen had passed the letters on to him. Even a novice would find that a thin assertion. (Singh’s address was listed vaguely as Noorani Chowk, Raja Talav — a little akin to saying someone lives in Dharavi, Mumbai. TEHELKA, however, tried to track Singh down in this locality but found no one who had heard of him.)
But that is the least of it. Three years ago, when DGP Vishwa Ranjan had spoken to TEHELKA, he had said confidently that since they had seized Sen’s computer CPU, they were sure to find a lot of evidence against him. The irony of his assertion seemed to have escaped him: Sen had already spent more than a year in jail by then and here was the DGP talking futuristically about the evidence that they would now surely find against Sen.
Despite all that delayed effort, this is the ‘key’ evidence that was marshalled against Sen: again, an unsigned typed letter allegedly written by the Maoists thanking Binayak Sen for his ‘service’, which the police claims to have seized from his house. However, unlike other items that were seized from Sen’s house during the search, this typed letter does not have either his or investigating office Rajpoot’s signature as proof that it was found in his house. “The judge simply accepted the police version. When we asked him to check the video footage of the seizure, he asked for a printout of the video!” recalls Ilina. This footage was shot with the permission of a District Magistrate when Sen’s house was searched by the police on 19 May 2007. Even the three letters to P, V and Friend allegedly seized from Guha do not bear his signature to prove it was taken from him, nor does Guha’s arrest memo mention the seized documents. However, DGP Vishwa Rajan claims, “If we had to plant evidence, we would have planted something more incriminating.”
But the ludicrous holes in the case go on endlessly. A postcard written by Ilina Sen addressing Kusumlata Kedia of the Gandhi Institute in Varanasi as ‘Comrade’ becomes evidence of Ilina’s Maoist ideology.“Comrade ussi ko kehte hai jo Maowadi hai (Only Maoists address each other as comrades),” argued special prosecutor Pandya. Investigating officer Rajpoot claimed to have seen a video of Sen meeting Naxalites inside a forest, but when questioned by the defence whether those Naxalites were armed and uniformed or just ordinary tribals, he could not give a clear answer.
Another police officer claimed Sen had participated in Maoist meetings in the jungle, but on cross-examination, conceded it could be hearsay. Deepak Choubey, son-in-law of Narayan Sanyal’s landlord in Raipur, testified that Sen had recommended Sanyal for the house. The defence claims this to be totally untrue. Its position is stengthened by the fact that Choubey claimed that Sanyal was arrested from Raipur in January 2006. However other police testimonies assert Sanyal was arrested in Bhadrachalam in Andhra Pradesh.
The prosecution had also claimed that Sen met Sanyal 33 times in less than 35 days, lending their meetings a kind of false urgency. However, Sen’s family claimed the meetings were spread over 18 months and each time Sen had filed an application to the jail authorities on the PUCL letterhead. The meetings took place in the jailer’s room, and instead of conversing in English or Bangla, they stuck to Hindi, so that every word could be understood by the supervising officer. Jail officials confirmed this.
Most crucially, back in 2007, when news had first started appearing in local papers that the police had declared “Naxal leader Binayak Sen” as absconding, far from running away or seeking anticipatory bail as his well-wishers had urged, Sen, who was visiting his mother in Kolkata, came racing back to Raipur. “There must be some misunderstanding,” he said. And driven by his idealistic belief in Indian democracy, his own good intention and years of public service, he went voluntarily to the police station to clear the air. They arrested him instead. The Chhattisgarh Police, therefore, did not arrest some dreaded combatant on the run, they arrested a citizen who had gone to them in good faith.
‘When we asked the judge to check the video of the seizure, he asked for a printout of the video!’ recalls Ilina
Despite all this, on 24 December 2010, at around 1 pm, Justice BP Verma pronounced Sen guilty of criminal conspiracy to commit sedition under Section 124(a) read with 20 (b) of the Indian Penal Code (IPC), and sentenced him to life imprisonment. In his 92- page judgement in Hindi, Verma declared Sen and Guha had aided and supported the Communist Party of India (Maoist) by carrying three letters written by Sanyal. The three were also convicted under Section 39(2) of the Unlawful Activities (Prevention) Act 1967, and Sections 8 (1), (2), (3) and (5) of the Chhattisgarh Special Public Security Act 2005, which charged them with supporting, aiding and abetting the activities of a banned organisation.
Justice Verma, who had replaced Justice BS Saluja midway into the trial and had only become a judge a year-and-half ago and is still on probation, announced: “The way that terrorists and Maoist organisations are killing state and Central paramilitary forces and innocent Adivasis and spreading fear, terror and disorder across the country and community implies that this court cannot be generous to the accused and give them the minimum sentence under law.”
Rather than justice, was the judge handing out deterrence?
“Two days before the verdict, the newspapers had screamed about the police bandobast being lined up for the judgement day,” Ilina told TEHELKA. “How did they know the verdict is going to be in their favour?” A week later, at a Delhi press conference, her disillusionment is even clearer. “My faith in the judiciary is weakening,” she said. “Sometimes I do think about walking into one of the embassies of a liberal democracy and asking for asylum.”
She might be wise to do that. The effort to nail Binayak Sen has included attempts to implicate the PUCL, of which he is the national vice-president. In 2004, when the Maoists had called a ban against voting, Ajay TG, a photographer-cum-filmmaker, had accompanied a fact-finding team of social activists that included Delhi University sociology professor Nandini Sundar and Binayak Sen, to south Bastar to assess the impact of this ban. A group of Maoists had accosted them and seized Ajay’s camera. Weeks later, a man visited Ajay at his home and apologised on behalf of the Maoists, saying they had mistakenly thought the team was from the government. However, they were willing to buy him a new camera if he could write down the make of his destroyed equipment. In all innocence, Ajay wrote a letter addressed to the Maoists asking his camera be replaced. In 2008, the police seized this letter during a raid on the house of Malti Rao, the wife of Gudsa Husendi, Maoist spokesperson. Ajay admitted to writing the letter explaining the circumstances under which he had done so. But he too was arrested for being a Naxalite. The police then claimed that Malti worked with Binayak and Ilina’s NGO Rupantar. Rupantar’s Malti, however, turned out to be a different person. (Speaking at a conference in Berkley in California in 2008, DGP Vishwa Ranjan admitted that arresting Ajay TG may have been a mistake. “It is possible he may not have been a Naxalite. There might have been some kind of technical error.”) Ajay is now out on bail.
Ram Jethmalani is not the only lawyer incensed by the judgement against Sen. At the press conference in Delhi on 3 January, Supreme Court advocate Prashant Bhushan pointed out that in the Kedar Nath Singh vs State of Bihar case (1962), the Supreme Court had ruled that provision 124(a) in the Indian Penal Code was a relic of a colonial, pre-Constitution era, and that it infringed on the individual’s right to freedom of speech and expression. “The Supreme Court had ruled that if, and only if, there is incitement to violence and public disorder, will the charge of sedition be said to be complete. The Raipur judge completely disregarded this important judgement in Dr Sen’s case,” Bhushan said.
He also questioned the very premise of the case. “The letters that Sen allegedly couriered, on which the charges against him were based, do not contain any conspiracy to commit crime or violence, but are routine letters written by somebody in prison. No acceptable, legally tenable evidence exists to back up this charge. Even if there is evidence, does it warrant life imprisonment?”
That is the key question. Why has the State been so adamant in making a lesson out of Binayak Sen? The answer lies outside the court.
BINAYAK SEN turned 61 on 4 January in jail. A gold medallist from the prestigious Christian Medical College in Vellore, he had moved to Chhattisgarh exactly 30 years earlier to work with Shankar Guha Niyogi, the legendary mine workers’ unionist. Sen helped set up the Shaheed Hospital at Dallirajhara, built with the workers’ own money. Later, he moved to the Mission Hospital in Tilda, and then, in 1990, joined his wife Ilina in Raipur to set up Rupantar, an NGO that has for 18 years trained village health workers and run mobile clinics in remote outposts.
As Dr Suranjan Bhattacharji, director, CMC Vellore, says, “Binayak walked the talk. He was an inspiration for generations of doctors. He reminded us that it takes many things — access, freedom, food security, shelter, equity and justice — to make a healthy society.” In 2004, the medical college honoured Sen with its prestigious Paul Harrison Award. The citation read, “Dr Binayak Sen has carried his dedication to truth and service to the very frontline of the battle. He has broken the mould, redefined the possible role of the doctor in a broken and unjust society, holding the cause much more precious than personal safety. CMC is proud to be associated with Binayak Sen.”
Anyone who opposed the Salwa Judum was deemed a Maoist. You were either with Us or with Them
Even DGP Vishwa Ranjan calls Sen “a good doctor”. However, all of that changed in 2005 when the State launched its infamous Salwa Judum initiative — raising and arming a tribal civil militia to fight the Maoists, triggering a kind of civil war. Sen, whose work straddled both medicine and human rights, protested strongly against the excesses of the Salwa Judum and the State’s atrocities against the tribals. This earned him the State’s ire. Anyone who opposed the Salwa Judum was deemed a Maoist. You were either with Us or with Them. The State wanted to send out a message: Fall in line. Even a man as illustrious as Binayak Sen can be put away.
The irrational doggedness with which the police has pursued the case has only driven the message home harder. On 31 December 2007, seven months after he was arrested, the Indian Academy of Social Sciences conferred the RR Keithan Gold Medal on Binayak Sen. On May 2008, still in jail, he was given the Jonathan Mann Award for Global Health and Human Rights. Around the same time, 22 Nobel Prize winners appealed to the Indian government for his release. But none of that was enough to keep Binayak out of jail.
Now, as the fight for his release stretches in the months ahead, he will become a test case for pulling back some of the draconian laws that are threatening to change the very fabric of indian democracy. As Amartya Sen says, “Democracy has to be judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard.’’
The first step woud be for the Chhatisgarh High Court to suspend the trial court judgement against Binayak Sen.