Frequently Asked Questions
1) Who is Dr Binayak Sen?
Dr Binayak Sen is an Indian pediatrician, public health specialist and activist who has been sentenced, on 24 December 2010, to life imprisonment by a Raipur Sessions Court for ‘sedition’ and ‘conspiracy’ against the Indian State. He is also the national Vice-President of the People’s Union for Civil Liberties (PUCL).
An outstanding alumnus of the prestigious Christian Medical College, Vellore. Dr Sen has spent nearly four decades doing healthcare and public health work among poor communities, particularly adivasis, in Chhattisgarh. He is the recipient of several major awards including the Dr Jonathan Mann Award 2008 for his work on health and human rights.
Binayak Sen and his wife Dr Ilina Sen played key roles in the foundation of the Chhattisgarh Mukti Morcha’s Shaheed Hospital, which is owned and operated by a workers’ organization and a community-based NGO called Rupantar. He is also an advisor to Jan Swasthya Sahyog, a health care organization near Bilaspur.
While Dr Sen has worked with the state government of on health sector reform he has also strongly criticized the government on human rights violations during the anti-Naxalite operations, while advocating non-violent political engagement.
2) What are the charges against Dr Binayak Sen?
On 14 May 2007, Dr Sen was detained for allegedly supporting the outlawed Maoists, thereby violating the provisions of the Chhattisgarh Special Public Security Act 2005 (CSPSA) and the Unlawful Activities (Prevention) Act 1967.
He was accused of acting as a courier, passing on letters, between jailed Maoist leader Narayan Sanyal and businessman Piyush Guha, also accused of having links with Naxalites. As part of his human rights work and also in the capacity of a doctor Dr Sen had met the 70-year-old Sanyal, who was unwell, 33 times in Raipur jail. All the visits were with prior police permission and Dr Sen’s meetings with Narayan Sanyal were held under supervision of the jail authorities.
3) The trial against Dr Sen so far
On 15 May 2007, Sen was presented before a local court where he was denied the bail and was remanded to judicial custody. On 18 May, he was produced in the Sessions Court, Raipur. The Court ordered a search of Dr Sen’s house in Raipur in presence of independent witnesses and his wife, Ilina Sen. The search was conducted the next day. His bail plea was again rejected on 25 May 2007 denied, as the Chhattisgarh Police claimed that he was a threat to the security of the State.
Sen applied for bail before the Chhattisgarh High Court in July 2007 and the Supreme Court in December 2007 but these were rejected also. He was finally granted bail by the Supreme Court of India only on 25 May 2009.
Meanwhile the trial against him in the Raipur Sessions Court continued and on December 2010, the Court found him ‘guilty’ of helping the Maoists and sentenced him to life term.
4) What was the Raipur Sessions Court’s verdict?
The Second Additional Sessions Judge, Raipur B.P. Verma has sentenced Dr. Binayak Sen, Kolkata businessman Pijush Guha and Maoist ideologue Narayan Sanyal for rigorous life imprisonment and shorter prison terms, to run concurrently under:
- Sections 124A read with Section 120B of the Indian Penal Code;
- Sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 (Chhattisgarh Special Public Safety Act); and
- Section 39(2) of the Unlawful Activities Prevention Act, 1967.
Briefly put, Section 124A read with Section 120B of IPC pertains to sedition and conspiracy for sedition; CSPSA, 2005 makes culpable membership of, association with, and furthering the interests, financially or otherwise, of organizations notified and banned under the Act as unlawful.
UAPA, 1967 seeks to penalize membership of a terrorist gang or association, holding proceeds of terrorism, or support given to a terrorist organization.
5) The ‘logic’ behind the Judgment
To hold the three accused guilty under the above mentioned laws, the judgment had to establish beyond reasonable doubt that:
- The accused were either directly indulging in seditious activities as individuals or as members of an organization, or conspiring to abet and further seditious activities of individuals or organizations;
- Also, the judgment was to establish beyond reasonable doubt that the accused were either members of organizations notified as unlawful under CSPSA or/ and UAPA, or conspiring to abet and further the activities of such unlawful organizations.
Judge Verma’s narrative hinges on the following points:
- Narayan Sanyal is a member of the highest decision making body, Politburo, of CPI (Maoist) a seditious organization and notified as unlawful under the CSPSA and UAPA. As a basis for this, the judgment cites the content of certain journals purported to be organs of the CPI (Maoist) and certain yet unproven cases lodged against him for Maoist activities in the states of Andhra Pradesh and Jharkhand.
- The above-mentioned journals have been reportedly seized from co-accused Pijush Guha, who has contended that they were planted on him by the police. The judge has unquestioningly accepted the version of the police on the basis of the supposed testimony of the seizure witness Anil Singh, a passerby, who was called in as a ‘witness’ by the police at the time of Guha’s arrest. The judge has ignored the objections of Pijush Guha and co-accused Binayak Sen to the effect that the seizure witness had claimed to ‘overhear’ a conversation between Guha and the police in a situation where the police had Guha in their custody. Any statement made by Guha to the police in a custodial situation is inadmissible as evidence under the Indian Evidence Act, 1872.
- The central point around which the verdict’s narrative is woven is the arrest and seizure of certain articles. These include the abovementioned journals and three letters supposedly written by Narayan Sanyal to his party comrades, given to Binayak Sen when he met Sanyal in jail, for further handing over to Pijush Guha who was supposed to pass it on to Sanyal’s party comrades. This supposedly establishes a chain binding the three in a conspiratorial relationship. According to this supposed conspiratorial chain, Narayan Sanyal is a leader of a seditious organization also notified as unlawful and as such banned; Binayak Sen conspires with Sanyal to pass on his letters to his party comrades through Guha, thus both Sen and Guha assist in the activities of a seditious and unlawful organization.
6) Discrepancies in the Verdict against Dr Sen
- In constructing this conspiratorial chain, the Judge has relied on forensic evidence testifying that the letters were indeed written by Sanyal. On the other hand to prove that these letter were in possession of Pijush Guha, he has relied solely on the evidence of police officers and seizure witness Anil Singh whose versions have been contested by Guha but ignored by the Judge. Guha’s statement before the Magistrate which was recorded when he was produced on the 7th of May, 2007 says that he was arrested on 1.5.2007 from Mahindra Hotel, kept in illegal custody blindfolded for six days and finally produced before a Magistrate only on 7.5.2007. The Judge has ignored even Guha’s statement to this effect made before the Magistrate as soon as he was produced. Judge Verma has said in his verdict that Guha has failed to produce any evidence in favour of his statement, thereby putting the onus of proof on the accused and not the prosecution, which is bad in law. Neither the CSPSA or UAPA (2004) puts the burden of proof on the accused.
- The Judge has also ignored the contradiction between the police affidavit filed before the Supreme Court while opposing the bail application of Binayak Sen and the police version presented in the charge sheet filed in the sessions court. In the Supreme Court the police said that Guha had been arrested from Mahindra Hotel (which Guha has alleged in his testimony) but in the sessions court the police have said that Guha was arrested from Station Road where the police supposedly seized the aforementioned incriminating articles in the presence of seizure witness Anil Singh. The police’s flimsy argument, that the discrepancy was because of a typographical error in the affidavit filed before the Supreme Court, has been fully accepted by Judge Verma. Actually, the police officer responsible should be tried for either filing a false affidavit in the Apex Court, or lying in the Sessions court under oath. Accepting Guha’s testimony would have rendered the seizure witness’s statement implausible on which the Judge has centrally relied for his narrative. This would have in turn resulted in a complete collapse of the case against all the accused, especially Guha and Binayak Sen, against whom there was no material evidence of either being a member of CPI (Maoist) or being in conspiratorial relationship with Narayan Sanyal, the principal Maoist character in Judge Verma’s narrative.
- But a certain planted letter, exhibit A-37, takes the cake in Judge Verma’s narrative. This unsigned letter, supposedly written by the Central Committee of CPI (Maoist) to Binayak Sen, was claimed by the police to have been seized from Sen’s house when the police ran a search there. But this letter finds no mention in the seizure list, neither has it been signed by Sen nor the investigating officers nor the search witnesses as per proper procedural requirement. The said letter was also not part of the copy of the charge sheet received by Sen in the court. But the Judge has completely overlooked this obvious planting of evidence, accepting the ridiculous explanation provided by investigating officers BS Jagrit and BBS Rajput that the Article A-37 probably stuck to another article (chipak gaya tha) and hence could not get signed by either Sen or the investigating officer or search witnesses.
- The verdict lets the cat of its ideological bias out of the bag , however, when it accepts above the Supreme Court’s wise judicial pronouncements which were brought on record in the case by Sen, the testimony of a mere district collector KR Pisda in charge of Dantewada district that Salwa Judum was a peaceful and spontaneous protest movement of the tribals against the atrocities committed by the Maoists, and not a brutal and armed vigilante operation sponsored by the state. Later in his judgment Judge Verma insinuates that Binayak Sen’s principled opposition as a human rights defender to such a non-legal, repressive, brutal vigilante operation indulging in mayhem and violence put him in the Maoist camp against whom the Salwa Judum was targeted.
6) Is the Sedition charge against Dr Sen justified?
While weaving a narrative of sedition against Binayak Sen and other accused in the case, the Raipur 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).
7) Why is the Chhatisgarh government targeting Dr Binayak Sen?
Binayak Sen earned the government’s ire by being a fierce critic of the high-handed and illegal ways that the government is using to put down a Maoist insurgency in Chhattisgarh. Dr. Sen participated in many investigations, which drew attention to severe human rights violations, including murder of unarmed and demonstrably innocent civilians by the police, and the “Salwa Judum” – a government-backed vigilante group active in Southern Chhattisgarh.
For instance, Dr. Sen’s and PUCL’s investigations had exposed that 12 alleged Maoists, killed by the police in Santoshpur village in a supposed gunfight on 31st March, 2007, were actually tribals executed at close range. The State Human Rights Commission took note of this investigation, and ordered the bodies of the victims exhumed. A few days later, Dr. Sen was detained and remains in prison.
Dr Sen’s defence lawyers told the Sessions Court that there was prima facie evidence of the Chhattisgarh police showing malice against him for criticism of the Salwa Judum campaign. They exhibited newspaper reports carrying statements of the then DGP Police (in 2007) threatening to take human rights activists ‘to task’.
8) What is Salwa Judum?
Salwa Judum is a vigilante movement in Southern Chhattisgarh that has been armed and supported by the Government of Chhattisgarh, and the Indian Home Ministry since June 2005, apparently in order to combat the Maoist insurgency.
The policy of arming a civilian militia has escalated the level of violence and a
civil war like situation has emerged with innocent citizens caught between the
Maoists and the Salwa Judum. Over 100,000 people have been displaced
and hundreds of villages have been abandoned and those displaced and others forcibly picked up from their villages, have been confined into roadside ‘relief camps’, where they face acute shortage of food, water and other basic amenities.
Dr. Sen had been a vocal opponent of the Government’s policy of arming Salwa Judum, and had organized fact-finding teams to visit the area and bring the harsh living conditions to light. The Supreme Court of India also issued a strong disapproval of the State’s backing of Salwa Judum.
9) What Happens Next?
Dr Binayak Sen’s legal defence team has filed an appeal against the Raipur Sessions Court verdict while also applying for suspension of the sentence (bail). In the meanwhile thousands of people in India and abroad are organizing a series of protests to demand the immediate and unconditional release of Dr Sen and the scrapping of draconian internal security laws, particularly those pertaining to ‘sedition’. Groups are also holding medical camps, film festivals, lectures and other events aimed at educating the Indian public about the injustice done to Dr Sen. On 30th January 2011, the anniversary of Gandhi’s martyrdom, there is a call for nationwide protests culminating in a jail bharo program.
10) What You Can Do?
Everyone outraged by the travesty of democratic norms and judicial process in the conviction of Dr Sen can organize protests wherever they are in a creative and peaceful manner. Holding public meetings, campaigns, producing publications, writing to MPs and members of the state legislature, organizing medical camps and film festivals are just some of the ideas proposed. Given Dr Sen’s lifelong work in the areas of public health and human rights, various issues at the local, regional or national level can also be taken up. Check for campaign news and ideas at www.binayaksen.net.
The message to the Chhattisgarh Government in particular and state authorities in general is ‘ We Are All Binayak Sen Now!’