LAW RESOURCE INDIA

State, sedition , Sen

Lady of Justice

Image by Damon Duncan via Flickr

Uttam Sengupta in The Tribune , Chandigarh

States, specially when they feel vulnerable and insecure, are known to crack down on dissent and dissenters. Even the United States, which prides itself on its democratic credentials, has witnessed various witch-hunts, notably against communists. So much so that an American was sent to prison on charges of sedition during the First World War when he was overheard saying in public that he wished Germans would arrive and clean up the country.

Iran last month imprisoned filmmaker Jafar Panahi for six years and ordained that he would not be allowed to make films for the next twenty years !

In India also half a dozen well-publicised cases hogged the headlines. They included sedition charges against Arundhati Roy, the author and activist, and Ali Shah Geelani, the Kashmiri separatist leader, both of whom attended a seminar in the national capital on “Azaadi-the only way out”. Curiously, Delhi police did not find any material to prosecute the duo but the judiciary ordered the police to proceed. In Karnataka, the police had egg on their face when they slapped a case of sedition against the vice-president of the state unit of the People’s Union of Civil Liberties ( PUCL) for allegedly publishing a journal, which had ceased publication in 2007.

An activist in Tamil Nadu was less lucky when he chose to distribute pamphlets at the District Collector’s Republic Day function. Although the pamphlet spoke of the government’s failure to implement the Supreme Court’s directives, the poor chap was thrown into prison for sedition. On Christmas eve came the verdict against the Raipur-based Dr Binayak Sen (61), who was ordered to be imprisoned for life for ostensibly aiding and abetting Maoists and helping them wage a war against the government. At the same time, hundreds of other lesser-known cases may have gone unnoticed because they involved poor villagers in remote areas.

Sen, like all doctors working in Maoist strongholds, would necessarily have known many of the rebels. He would have treated some of them, known families of others and counseled a few. As the PUCL general secretary too, he would have been expected to meet Maoists, former Maoists, their sympathisers and officials. Some of them would possibly have visited his home as well and written to him. The question is, whether that made him also a rebel and a collaborator ?

The Binayak Sen case raises five basic issues. First, is it possible for doctors, journalists, police officers and activists in Maoist strongholds to avoid contacts with the rebels ? One would think such contact is unavoidable if they try to discharge their duty, which really leads to the second question. Could the state have taken advantage of Sen’s contacts to either have a dialogue with the Maoists or to nab them ?

The third question that arises is what the state would have gained by prosecuting the doctor. The verdict has caused outrage both here and abroad. Amnesty International has called him a ‘prisoner of conscience’.

It is also fine to say, as former Chief Justice of India V.M. Khare said, that our judicial system is perfect; that if the trial court has erred, the superior courts can always review and overturn the judgment. But with the Indian judiciary , specially the lower judiciary, being notorious for kowtowing to the powers that be, it is difficult indeed to keep the faith. And even if the doctor earns his freedom after three years or five, will the state ever be able to return the lost years to him ?

Finally, when the state takes no action against separatists like Simranjit Singh Mann in Punjab, Geelani in Kashmir, votaries of a Tamil state in Tamil Nadu, Muivah in Nagaland and now decides to have a dialogue with ULFA leaders, how does it explain the double standards

SEQUENCE OF EVENTS LEADING TO ARRESTS

On May 6, 2007 Raipur police were ordered to frisk suspicious people and search suspected vehicles, hotels, lodges, inns etc.

At 4.10 pm, the police spotted Piyush Guha ‘rushing’ towards Raipur Railway station.

Guha was stopped and taken to the police station, where his bag was searched. It yielded three handwritten letters addressed to another ‘Naxali leader’ ( sic).

Guha claimed the letters were given to him by Dr Binayak Sen and that the letters were written by Narayan Sanyal.

Thereafter a search was carried out in Sen’s flat in the Katori Talab area and incriminating literature and a postcard written to Sen by Sanyal from jail was recovered.

THE DEFENCE PLEA

Guha claimed he was a businessman dealing in tendu ( beedi) leaves and that police had picked him up from his hotel, blindfolded him, detained him for six days and forced him to sign on some papers. He knew neither Sanyal nor Sen.

Dr Binayak Sen claimed that senior police officers had threatened to implicate him in false cases because of his opposition to the state government’s ‘Salwa Julum’ campaign.

Interestingly, Sanyal claimed that he is not even a Naxalite but police wants to keep him in jail by ‘falsely terming him as a Naxal’

ISSUES BEFORE THE COURT

Whether the accused waged war or attempted to wage war or conspired to wage war against the Government of India.

Whether the accused committed sedition by inciting or attempting to incite hatred, contempt or disaffection against a government established by law in India.

Whether the accused committed a conspiracy to commit sedition.

Whether the accused participate in activities or meetings of any unlawful organization.

Whether the accused encouraged or executed terror ?

Whether the accused are members of a terrorist group ?

Whether the accused possessed property obtained or received from terrorist acts ?

Did the accused commit the offence related to giving support to a terrorist group ?

EVIDENCE PRODUCED BY THE PROSECUTION

Guha had been visiting Raipur regularly and stayed in hotels in 2006 as well as 2007.

A production warrant was issued by a court in West Bengal and Guha was escorted from jail to West Bengal and back.

A West Bengal police officer testified that Guha was among the 150 Maoists suspected to have laid landmines around a CRPF camp and a challan had been issued in his name.

A police inspector from Andhra Pradesh testified that Sanyal was arrested from a bus stand in Bhadrachalam in 2006 and his bag contained a pistol, walkie talkies, cash and books. He had admitted that he was a member of the Central Committee of the CPI ( Maoists).

The SHO of Chhuriya police station testified that he knew the accused and that meetings of Naxal leaders , central committee members and state committee members were regularly held in the area and attended by Binayak Sen, his wife Ilina Sen and others like Shankar Singh and Amita Shrivastava.

Prosecution Witness Deepak Choubey testified that he had rented out two rooms to Sanyal and Amita Shrivastava on the recommendation of Dr Binayak Sen.

In January, 2006 , when he went to collect his rent, he learnt that Andhra Pradesh Police had raided the house and arrested Sanyal while Shrivastava had absconded. They had been tenants for six to seven months.

The Principal of Jatan Devi Daga Higher Secondary School, Manish Daga, testified that Amita Shrivastava was working as a teacher but suddenly left in March, 2005, never to return.

Prosecution Witness Meena Singh Puri testified that Shrivastava was employed on the recommendation of Dr Ilina Sen.

PW Arun Kumar Dubey deposed that he had rented out two rooms to Shankar Singh who had introduced Amita Shrivastava as his sister-in-law.

PW Ramswaroop deposed that he too had rented out his house to Shankar Singh, who had said that he worked for Rupantar, an NGO run by Dr Ilina Sen.

Prosecution has established that a call was made to Binayak Sen’s mobile from the mobile phone of Sanyal’s elder brother’s wife in Kolkata.

Prosecution has proved that Sen met Sanyal in prison on 33 occasions by posing as a relative.

CONCLUSIONS DRAWN

Sen, Sanyal and Guha are Naxalites with links with other hard-core Naxalites.

Sen had helped Sanyal and other Naxalites to secure jobs and accommodation.

Sen was found in possession of letters and literature that established his complicity with Naxalites.

Sen was also in touch with the wife of Sanyal’s elder brother, who called him from Kolkata.

DOUBTS RAISED

If the police knew that central and state committee members, along with Binayak Sen and his wife, were holding meetings in the Chhuriya Thana area ( deposition by SHO) then why were they not arrested and all members rounded up ?

Is it possible that Andhra Pradesh police raided the house, picked up Sanyal and went back without interrogating the landlord ?

Since arranging jobs for Naxalites or giving jobs to them apparently amount to sedition, why has Dr Ilina Sen and the NGO that she runs spared ?

The court’s order records that Prosecution Witness S R Thakur, posted as a deputy jailor in Central Jail, Raipur admitted during cross-examination that Sen did not describe himself as Sanyal’s relative while applying for a meeting. But the judge seemed to have disregarded the statement.

Defence Witness Mahesh Mahobe deposed that he had video-recorded the search and seizure by the police at Sen’s flat and it clearly showed that the police had carried CDs, documents and cassettes in an open bag, raising possibility of planting of evidence by the police. The judge overlooked the lapse.

Prosecution Exhibit No. A-37 , an incriminating letter, did not bear any signature or signature by the witness to the seizure. But the court accepted the prosecution’s plea that ” …as A-37 possibly got stuck to some other article, it couldn’t have the signatures”.

TRIAL OF A DOCTOR & A GENTLEMAN

On Christmas eve, a Raipur Session Judge awarded Dr. Binayak Sen (61), a pediatrician, Narayan Sanyal (74), an old Naxalite ideologue, and a tendu patta (bidi leaves) Kolkata businessman Piyush Guha (38), life imprisonment on charges of sedition (‘rajdroh’) and criminal conspiracy to wage war against the duly elected government.

As the Second Additional District and Sessions Judge B. P. Varma’s verdict hit the headlines, human rights activists the world over cried “foul” and said it was “injustice.” Legal pundits, however, are divided over the judgment though and the jury is still out.

Demonstrations demanding “Free Binayak Sen” are taking place in New Delhi, other cities and many global capitals. Twenty two Nobel Laureates made a strong appeal demanding his release. On June 7, 2007, the British House of Commons published an ‘Early Day Motion’ titled ‘Arrest of Dr. Binayak Sen’ – supported by several Members of Parliament across party lines. The atmosphere was similar when Sen was arrested on May 14, 2007, by the police under the Chhattisgarh Special Public Security Act 2005 and the Unlawful Activities Prevention Act 1967.

Sen first applied for bail before the Raipur Sessions Court and then the Chhattisgarh High Court in Bilaspur in July 2007, but was granted bail only by the Supreme Court on May 25, 2009.

Sen’s conviction has been criticised by his supporters as ‘politically motivated’ and based on ‘bogus evidence.’ The judge, however, accepted the prosecution’s evidence against the accused as ‘clinching.’

During the trial, the prosecution claimed that Sen was actively helping Maoists by providing them logistical and strategic support in establishing urban cells. He made 33 visits to Narayan Sanyal in jail. “They were perfectly legal visits and allowed under the jail manual. There was nothing clandestine about it. Sanyal was suffering from many diseases and required regular medical support,” Sen’s wife, Dr. Ilina Sen, a professor at Wardha university, has claimed.

The police countered this by saying that “Sen is a pediatrician…why did Sanyal need him, when there is a doctor in the jail.” Two jailors testified stating that Sen used to pose as Sanyal’s relative to meet him to discuss “household matters.”

“Not everyone in the urban network is a Maoist. There are genuine civil liberty activists, Gandhians, writers, poets, university teachers, journalists and NGOs,” says Chhattisgarh Director General of Police Vishwa Ranjan. “But it is astonishing how they are not able to see the Maoists’ gruesome violence,” he adds.

The Maoists draw inspiration from a secret red book ‘Strategy and Tactics of the Indian Revolution.’ Published by the Central Committee of the CPI (Maoist), it is their Bible. It says: “The central task of the revolution is seizure of political power through protracted people’s war.” Their goal is to seize power in Delhi by 2050.

“We had developed intelligence that in Delhi and around, the Maoists are trying to catch the young talent in universities and in economically poor districts,” claims Ranjan.

Sen is a gold medalist MBBS and MD, from the prestigious Christian Medical College, Vellore, Tamil Nadu. He moved to Chhattisgarh in 1978. He began working with well known trade union leader Shankar Guha Niyogi, who built up the Chhattisgarh Mukti Morcha. Niyogi was killed allegedly by the ‘industry mafia.’

Sen and his wife played a key role in setting up the Chhattisgarh Mukti Morcha’s Shaheed Hospital, which is owned and operated by a workers’ organisation and a community-based NGO called Rupantar. He is also an advisor to a healthcare organisation, Jan Swasthya Sahyog. He is the recipient of the 2004 Paul Harrison award for a lifetime of service to the rural poor. This award is given annually by Christian Medical College to its alumni. He was also awarded the R.R. Keithan Gold Medal by the Indian Academy of Social Sciences on December 31, 2007. The citation describes him as “one of the most eminent scientists” of India.

In 2008, Sen was selected for the Jonathan Mann Award “for his untiring work in the field of people’s health and human rights.”

 

I feel as if I have been mistreated  – Amartya Sen

I am very upset about the court decision in Chhattisgarh about Binayak Sen. It is a huge perversion of our system of justice, and particularly of the laws concerning sedition.

It’s not at all clear, to start with, that the thing he has been exactly accused of – of passing letters – has been really proved beyond doubt.

Secondly, even if this were correct, that doesn’t amount to sedition. He hasn’t killed anyone, he hasn’t incited anyone to rise in violent protest or rebellion. In fact, we know that in his writings he has written against the use of violence in political struggle, arguing that this is neither correct, nor is it ultimately successful. So, I think, even if this is the case – that the exact thing he is accused of is exactly what they are saying it is, which is by no means clear – even then the charge of sedition does not stand.

Thirdly, in exercising any kind of judgment, one has to take into account the character of the person. In this case, Binayak Sen is a very dedicated social worker, working extremely hard for the welfare of some of the most neglected people in the world. He has dedicated his life to doing that rather than having the prosperous, successful life of a doctor, and making a lot of money.

So his dedication is not in doubt.

To turn the dedicated service of someone who drops everything to serve the cause of neglected people into a story of the seditious use of something – in this case, it appears to be the passing of a letter, when sedition usually takes the form of inciting people to violence or actually committing some violence and asking others to follow, none of which had happened – the whole thing seems a ridiculous use of the laws of democratic India.

This is part of a legal process, and we have to bear in mind that this is only the first step in a state which has been extraordinarily keen in keeping Binayak Sen behind bars.

And the legal process will not stop there. If the high court in Chhattisgarh has its thinking straight and unbiased, it will overturn the decision. But if it turns out that – as it happened in Gujarat – justice is difficult to get in the state, which is under the control of a political regime that is keen on justifying its policies, some of which are very deeply problematic, rather than bringing justice to people living in Chhattisgarh, then the issue will have to be dealt with at the central level, that is the Supreme Court.

The Supreme Court has shown, time and again, that it is very committed to the fundamental rights of all human beings, and I don’t doubt that if Chhattisgarh is left in this utterly unsatisfactory state we will get satisfaction from the Supreme Court. So, I am not suggesting that we overrule the judicial system in any way. But the reasoning that makes many concerned citizens think that this is a deep miscarriage of justice should be aired and should be known to the people as well as the court. That is the reason for my willingness to make a statement in a case where I am outraged, upset, and feel unjustly treated.

As Rabindranath Tagore said, the maltreatment of any human being is a mistreatment of me as well. I do feel as if I have been mistreated.

I hope to make it clear that in spite of the similarities of our names, Binayak Sen is no relation of mine. But then he is also a relation of mine as an Indian citizen, and he is a relation of yours too as an Indian citizen. He is a relation of a lot of people as a global citizen, particularly a relation of those who, like him, fight against injustice in the world, right across the globe

http://www.tribuneindia.com/2011/20110103/nation.htm#8

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