Need spine, not muscle, to fight for human rights
By Antara Dev Sen
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Deccan Chronicle
It took two years of sustained shaming to get Dr Binayak Sen out on bail. The state had been stoutly ignoring the worldwide chorus of appeals and angry protests since the doctor and civil rights activist’s arrest on flimsy charges back in May 2007.
Now the Supreme Court has finally ordered his release from custody on a personal bond, on grounds of ill health. While this is lovely news, it is not really a victory of civil rights over state repression. In fact, that the state had managed to keep Dr Sen behind bars for so long without evidence, ignoring the international outcry and unrelenting national protests for two years, shows us what our wonderful democracy has been reduced to.
No, I am not being churlish at a moment of jubilation. Just cautious. Remember that Dr Binayak Sen is just the most high profile of many civil rights activists around India who are being harassed, tortured and even killed by government agencies for speaking up against state repression. Remember that the horrific terror laws they are held under are still firmly in place. Remember that Dr Sen had been protesting human rights violations of the tribals in Chhattisgarh by a state government keen to label critics Maoists and kill them in fake encounters, that he was arrested following his investigations into the murder of villagers by the police and state-supported Salwa Judum. The vicious Salwa Judum that carries out ethnic cleansing in the tribal areas (many say to further corporate agendas in this resource-rich belt) and had reportedly clapped almost 50,000 people in concentration camp-like conditions. Remember that more than a year ago, the Supreme Court had declared that band of vigilantes illegal.
“How can the state give arms to some persons? The state will be abetting in a crime if these private persons kill others”, Chief Justice K.G. Balakrishnan had said. “You will be an abettor of the offence under Section 302 of the Indian Penal Code.”
In short, the Supreme Court had pointed out that the Salwa Judum makes the state an accomplice in murder. But Dr Sen was still behind bars — partly in solitary confinement — for more than a year after that April 2008 judgement. And it was only because of his urgent need of medical attention that the court could order bail. So after all those marches, fiery speeches, hard-hitting articles, public discussions and appeals that many of us have vigorously participated in for two years, after all those prestigious international prizes and grand awards and worldwide appeals, including one by two-dozen Nobel laureates, Dr Binayak Sen got bail on medical grounds. This moment of freedom underlined how merely demanding human rights is not enough, how we still need fig leaves like heart ailments to bail out our heroic activists who are unlawfully incarcerated.
But India is, after all, a well-oiled democracy. Our civil society does make a difference. We do have some control over the fate of our nation and our fellow citizens, even if the wheels of justice turn slowly and we need fig leaves to smuggle in justice. We are still far more fortunate than our neighbours in the failed and failing states around us. There has been a prolonged dearth of human rights in Pakistan, Sri Lanka, Bangladesh, Tibet and the jewel in the crown, Burma.
But the power of civil society is not limited to the democracy it lives and breathes in. Its power lies in being able to reach beyond local and national boundaries, beyond ethnic, religious and language barriers, in being able to come together to demand basic rights for unknown people far away simply in the name of humanity and justice.
And just as we need to get our government to stop its own human rights abuses, we also need to put pressure on it to be a responsible, ethical neighbour that protests human rights abuse elsewhere.
Right now, India has an excellent opportunity to help the government of Sri Lanka be fair in its rehabilitation and protection of the long-suffering Sri Lankan Tamils. It is not just M. Karunanidhi and J. Jayalalithaa’s concern, not just a matter of Tamil sentiments and vote-bank politics. The plight of the Sri Lankan Tamils is the concern of anyone who believes in human rights. And as the world’s largest democracy that wishes to be a regional superpower, India must rise to the occasion. Yes, our earlier intervention in Sri Lanka was a disaster, so we know what not to do this time.
Flexing muscle is not the point, but showing some spine has its merits. Take our screaming silence on Burma, even as the junta carries on its shameless attempt to jail Aung San Suu Kyi for a further five years as her house arrest ends this week. Like our earlier silences over Burma’s enormous human rights abuses and political wrongs, we have kept politely quiet on this make-believe trial to jail the Nobel peace laureate over a curious case of an unknown American swimming into her house and thus violating the terms of her house arrest just before it was to end.
This seems to be a clear attempt by the Burmese junta to deny Suu Kyi freedom yet again, to clap her in jail now to make it easier for the generals to win the elections next year. But why go for such lugubrious measures to retain power, you may ask, when all they need to do is reject the results of the elections? That’s what they did when Suu Kyi won with 82 per cent votes in 1990. She has been in and out of house arrest for decades, and has been in detention for a total of 13 years. Her supporters have been jailed and badly abused, hundreds of them killed by the military regime.
Burma, once an integral part of the Indian consciousness, is now a lawless jungle that we don’t even think about. Other than occasional squeaks, India has not had much of a say in the junta’s atrocious affairs.
Today, as Suu Kyi’s trial continues and the world demands her release, India looks away. The European Union, the United Nations, America and practically every civilised country has spoken up against the junta and appealed for her release.
There is further talk of sanctions against Burma and of dragging Burma to the UN Security Council. But India, scared of China’s wrath, keeps its head down. Hopefully, our civil society will show more spine. And we will not have to hang our heads in shame in the world out there.
* Antara Dev Sen is editor of The Little Magazine. She can be contacted at: sen@littlemag.com
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Binayaksen.net is one of many efforts by well wishers and supporters of Dr Binayak Sen to bring the injustice being done to him by the government of Chhattisgarh to the attention of people around the world. 
Dear Kavita,
(No need to add any “jee”, I suppose.)
Thanks and congrats for such a graphic account of those historical 40 seconds. Making the essential points in the clearest possible manner.
Unfortunately, it is just not those standing on the side of state in its bid to repress and crush legitimate dissents are trying to spread this canard that Binayak has been freed on bail on medical grounds – as an act of mercy on the part of the magnanimous Indian state – but even perfectly well-meaning people are almost refusing to acknowledge the facts as they stand now, refusing to believe in our own strength – the strength of the civil society.
(I was far from the scene when history was being enacted in those 40 seconds, but had the good fortune of being briefed directly by you on the written order almost as soon as it had been obtained. And the order was later uploaded on the site .)
I’d, in this context, like to quote from my forwarding note under which I had circulated the otherwise excellent write-up by Antaraji.
Quote
(W)hile Dr. Sen’s health condition must have had weighed on the minds of the changed Supreme Court bench – the original one had played a rather nasty trick even on that count – the bail order does not make any reference whatever to his health. The bench implicitly acknowledges the elaborate and ugly farce that went on for over the last two long and excruciating years.
Unquote
It’s a bail on merit, NOT on mercy.
One arm of the Indian state, even if implicitly, acknowledges the gross misuse of powers by some other arms.
That’s very important.
Thanks to the changed Supreme Court bench. And thanks to the huge civil society campaign which made the whole world take note. During the last days, even the mainstream national newspapers felt so embarrassed by this persistent exposure of gross act of misuse of power by the state (of Chhattsgarh in particular) that just not articles were carried to voice the demand for Binayak’s release, even editorial comments kept ceaselessly streaming out. And at the end the bail was granted. Let us repeat: on merit.
Here is the text of the May 25 written order reproduced below:
ITEM NO.32 COURT NO.2 SECTION IIA
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).3378/2009
(From the judgement and order dated 02/12/2008 in MCRC No. 1421/2008
of The HIGH COURT OF CHATTISGARH AT BILASPUR)
BINAYAK SEN Petitioner(s)
VERSUS
STATE OF CHHATTISGARH Respondent(s)
(With appln(s) for bail and office report ))
Date: 25/05/2009 This Petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE MARKANDEY KATJU
HON’BLE MR. JUSTICE DEEPAK VERMA
[VACATION BENCH]
For Petitioner(s) Mr. Shanti Bhushan, Sr. Adv.
Mr. Soli J.Sorabjee, Sr. Adv.
Mr. Sandeep Kapur, Adv.
Mr. Shivek Trihan, Adv.
Mr. Mehul Milind Gupta, Adv.
Ms. Anjana Prakash, Adv.
Mr. Anuj Prakash, Adv.
Mr. Shishir Pinaki, Adv.
Mr. Anwesh Madhukar, Adv.
Mrs Manik Karanjawala,Adv.
For Respondent(s) Mr. Mukul Rohatgi, Sr. Adv.
Mr. Atul Jha, Adv.for
Mr. D.K.Sinha, Adv.
UPON hearing counsel the Court made the following
ORDER
Heard learned counsel for the parties.
In the facts and circumstances of the case, We direct that the
petitioner shall be released on bail on furnishing personal bonds to
the satisfaction of the trial Court.
The Special Leave Petition is disposed of accordingly.
(Parveen Kr. Chawla) ( Indu Satija)
Court Master Court Master
[Source: .]
Dear Kavita, thanks and congrats again for clarifying the issues.
In solidarity,
Sukla
From: Kavita Srivastava
Date: Fri, May 29, 2009 at 12:11 AM
Subject: setting the facts straight on Binayak’ s bail and thanking you for your support
To: sen@littlemag.com, Sukla Sen , india-unity@yahoogroups.com, Samuhik Khoj , indiathinkersnet , mahajanapada , bahujan , IHRO , issueonline , mihre , international-peace-festival , “invitesplus@yahoogroups.com” , humanrightsactivist , peace-mumbai , citizen-mumbai
- Hide quoted text -
Dear Antaraji,
I am putting the “ji”suffix as I donot know how else to address you, respecting your stature as a writer and columnist.
Firstly let me thank you for your candid writings in Asian Age and other papers, highlighting the issue of Binayak’s incarceration and demanding his freedom. In January, ’09 when Dr. Ilina Sen, myself and a few other friends were trying to get editors to see how violative Chhatisgarh Government and the judiciary had been and how unwilling they were to restore the civil liberties of Dr. Sen, we were pleasantly surprised to see your piece in the Asian Age, Mahashweta Devi’s in Dainik Hindustan, Karan Thapar and Khushwant Singh’s in HT and the long three part series in IE along with an edit piece and an Op-Ed piece in the same paper. That is why I was very happy to see your May 8th Deccan Chronicle piece on IHRO group. However, there are certain facts that are not right which I would like to bring on record.
I was in Court on 25th of May, when the matter came up in the Supreme Court. It was number 32 on the cause list. When our number was announced, the two senior counsel’s Shanti Bhushan representing Binayak and Mukul Rohtagi for Chhattisgarh State got up. The senior judge Justice M. Katju spoke. His first comment, even before any of the counsel’s had spoken was that ” We know that Dr. Binayak Sen has been two years in jail bail should be granted”. Sh. Mukul Rohtagi promptly spoke up and said “Your lordship I would like to bring to your notice the facts of the case”. He was interrupted mid sentence by Justice Katju who told him, take your seat Mr. Counsel….we are aware of the facts of the case and in the same breath, Bail is granted on furnishing personal bonds to the satisfaction of the trial court. Next Case…”
We were shocked, as it happened too fast. Had he really been granted bail…?One of our friends in court looked at my confused state, raised his fist with a sense of victory and said “celebrate”. We got out and all our lawyers met us and we knew that bail been granted on the merit that Binayak had been incarcerated too long and that the Supreme Court trusts Binayak so it has asked the lower court to leave him on a personal guarantee, no securites, no conditions, no ground – medical or any other. I had mentioned this even in an earlier debate on the Times Now news channel on the 25th evenig itself when the anchor Arnab kept saying that Binayak had been granted bail on medical grounds. I am doing it again.
The attitude of Justice Katju who did the speaking during the hearing which lasted 30 to 40 seconds, was clear from the first sentence that Binayak had been kept too long. The case papers that were drafted by our lawyers and presented to the SC were built on the merits of case, where not a shred of evidence could be fixed against Binayak even after examining 70 witnesses in the trial. And since the grounds for bail are dependent on whether the person would influence witnesses if granted bail and whether he/she could be trusted and not as one who would disappear, we had presented these dimensions very strongly.
The medical grounds were only argued orally by Mr Jethmalani on the 4th day when notices were issued to the Chhatisgarh State Government as the Government had filed an application in the trial court that Binayak’s heart’s health was not as serious as the Raipur doctor who exmained Binayak made it out to be. And that too was presented after the main grounds on why the bail application needed to be entertained by the SC had been argued.
The morning before the 25th of May, when we were preparing for the hearing, our lawyers had showed us several judgements, including one that was as recent as 18th May where Justice Katju had granted anticipatory bail, arguing that bail should be granted before jail as a person’s civil liberties and reputation had to be guarded, equally strong were his words in bail matter of the month of March where once again interim bail had been granted. So an elment of pro civil liberites, did reflect in these judgements.
While I agree that it can be said that there is not much to celebrate about either the Indian Judiciary or the Indian State when it has taken two years to grant bail to one who has been falsely implicated. However, I feel that precisely if those fiery marches, speeches, hard hitting articles, Globally people appealing including the noble laureates, all those awards had not happened the Government, the complete black and white nature of the case would never have been higlighted and then maybe I would agree with you that “we still need fig leaves like heart ailments to bail out our heroic activists who are unlawfully incarcerated”. However, you yourself say at a later point that ourcivil society matters. SO lets celebrate that. Just as we also need to celebrate the fact that finally justice did prevail courtesey our Supreme Court.
Sorry for the fact that it has become really long. Hope you read it still.
Thanks!!
Kavita Srivastava
(General Secretary) PUCL Rajasthan
Address for correspondence :
76, Shanti Niketan Colony, Kisan Marg, Barkat Nagar, Jaipur-302015
Tel. 0141-2594131
mobile: 9351562965