Given below is the text of the historical order of the Supreme Court of India according to which the mere membership of a banned organisation does not constitute a crime. Specifically the honorable judges reject the idea that someone can be ‘guilty by association’, a pernicious principle that has been certainly applied in the case of Dr Binayak Sen by the lower judiciary.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 889 OF 2007
ARUP BHUYAN Appellant (s)
STATE OF ASSAM Respondent(s)
O R D E R
Heard learned counsel for the parties.
This Appeal has been filed against the impugned judgment of the Designated Court, Assam at Guwahati dated 28.03.2007 passed in TADA Sessions Case No. 13 of 1991.
The facts have already been set out in the impugned judgment and hence we are not repeating the same here except wherever necessary.
The appellant is alleged to be a member of ULFA and the only material produced by the prosecution against the appellant is his alleged confessional statement made before the Superintendent of Police in which he is said to have identified the house of the deceased.
Confession to a police officer is inadmissible vide Section 25 of the Evidence Act, but it is admissible in TADA cases vide Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987.
Confession is a very weak kind of evidence. As is well known, the wide spread and rampant practice in the police in India is to use third degree methods for extracting confessions from the alleged accused. Hence, the courts have to be cautious in accepting confessions made to the police by the alleged accused.
Unfortunately, the police in our country are not trained in scientific investigation (as is the police in Western countries) nor are they provided the technical equipments for scientific investigation, hence to obtain a conviction they often rely on the easy short cut of procuring a confession under torture.
Torture is such a terrible thing that when a person is under torture he will confess to almost any crime. Even Joan of Arc confessed to be a witch under torture. Hence, where the prosecution case mainly rests on the confessional statement made to the police by the alleged accused, in the absence of corroborative material, the courts must be hesitant before they accept such extra-judicial confessional statements.
India: Repeal Sedition Law
Prosecutions Used to Silence Political Dissent
January 5, 2011
(New York) – The Indian parliament should immediately repeal the colonial-era sedition law, which local authorities are using to silence peaceful political dissent, Human Rights Watch said today. The Indian government should drop sedition cases against prominent activists such as Dr. Binayak Sen, Arundhati Roy, and others, Human Rights Watch said.
In two recent cases, in New Delhi and Chhattisgarh, the authorities have pursued sedition charges against peaceful activists, despite a longstanding Supreme Court ruling that prosecution under the sedition law requires incitement to violence, which was not alleged in either case.
“Using sedition laws to silence peaceful criticism is the hallmark of an oppressive government,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The Supreme Court has long recognized that the sedition law cannot be used for this purpose, and India’s parliament should amend or repeal the law to reflect this.”
Protest In Harvard Square Condemns Life-Imprisonment Sentence Against Noted Indian Physician Dr. Binayak Sen
FOR IMMEDIATE RELEASE
A New-Low in Democracy in India
Volunteers of the Association for India’s Development, Boston (AID-Boston), Boston-area alumni of Christian Medical College (CMC), Vellore (India), an activist of the South Asia Center (SAC) and the deputy-director of Cambridge-basedPhysicians for Human Rights (PHR) participated in a protest rally at Harvard Square at 3pm on Dec. 24.
They expressed their strong condemnation of the life-imprisonment sentence accorded to noted human-rights activist and physician Dr. Binayak Sen in the afternoon of Dec. 24, Indian Standard Time, in Raipur in central India. Dr Sen, along with two others, were accused of collaborating with anti-state forces.
Honorine Ward, an alumna of CMC and an assistant professor at Tufts Medical Center in Boston, said that she had met Dr. Sen and his wife just two weeks ago in India in Vellore where Dr. Sen was involved in developing a special academic course on health and human rights. “I asked them if they ever thought of leaving India to go somewhere else. And Dr. Sen said that they had to complete the work they had undertaken at the grassroots and in academics.”
Susannah Sirkin, the deputy-director of PHR, said that her organization had been supportive of Dr. Sen’s case right from the beginning. She also mentioned that she had been in touch with Dr. Jonathan Fine, a founder of PHR, who was on the court premises in Raipur during the hearing of Dr. Sen’s case on Dec. 24th. “He said he could not help crying when speaking with Dr. Sen’s wife before and after the verdict was declared,” she related.
Garga Chatterjee, an AID-Boston volunteer and a PhD student at Harvard University was also shocked by the sentencing. “This has shaken our faith in the Indian judiciary,” he said
Dr. Sen was awarded the 2008 Jonathan Mann Award for Global Health and Human Rights. Internationally celebrated for his work on behalf of the poorest and for his defense of human rights, Dr. Sen has been persecuted by the central Indian state of Chhattisgarh for speaking out against the violence perpetrated by the security forces and by the state-backed militia, Salwa Judum. Arrested in May 2007, Dr. Sen served two years in prison without trial, including a spell of solitary confinement, before being given bail by the Supreme Court in May 2009.
Hardeep Mann of SAC said that the sentencing of Dr. Sen was a way of setting an example for all those who dared to question the state and its authority. “It is meant as a warning to all of us,” she remarked.
by Sandeep Pandey
Mainstream, Vol XLVII, No 26, June 13, 2009
Akin to George Bush in the aftermath of the September 11, 2001 attack who, while declaring his war on terror, proclaimed that if one is not on the side of US Government then one is with the terrorists, the Chhattisgarh Government thinks that if one is not with the Salwa Judum, the state sponsored tribal militant group meant to counter the Naxalites, then one would be considered a sympathiser of the Maoists. Binayak Sen paid the price for criticising the Salwa Judum. Now, it the turn of Himanshu Kumar. Encouraged by the recent success of the Sri Lankan Government against the LTTE, the local administration moved in three JCV machines and 500 police personnel on the morning of May 17, 2009, to finish off the Vanvasi Chetna Ashram, the centre painstakingly created by Himanshu over the last 17 years in Kanwalnar village of Dantewada district.
Himanshu Kumar was presently engaged in a very important task of resettling tribals who had left their villages amidst violent confrontations between the Naxalites and Salwa Judum since 2005. Some of them were living in camps run by the Salwa Judum, under strict para-military supervision, and some of them had escaped to as far as neighbouring Andhra Pradesh. People of Lingagiri in Bijapur district have returned from Cherla in AP after three years. Similarly, people of nearby Basaguda have returned from a Salwa Judum camp across the river from their village, a river which nobody dare cross for the last three years due to fear of violence from both sides. The government-backed Salwa Judum wants people in camps, most of them on the roadside, but there is a Supreme Court directive that the government must help people resettle in their original villages. Around three lakh people were internally displaced during these violent years, of which 56,000 landed in the camps. But now their number has come down to less than half. More people yearn to return to their villages. The reason is simple. How long can one be dependent on government dole and live under armed security? Life has to start again in villages. That is where the agricultural fields and cattles are. Himanshu, who like the common people, is equidistant from both the Naxalites and Salwa Judum, was helping the people realise their dream of returning to normalcy. The government is certainly not in a position to undertake this perilous and arduous task at the moment.
The government, instead of being grateful to Himanshu, has been vindictive because Himanshu has been raising the cases of human rights violations of tribals by the security forces, SPOs—the 3500 adhoc tribal police force—and the Salwa Judum, the most recent being the killing of 19 innocent people in Singaram who were declared to be Naxalites in January, 2009, in a false encounter by the police. The government and the local administration were obviously not happy with him. They gave him a notice a day before the demolition to vacate the land, which they claimed the VCA was encroaching upon. The land was obtained by the VCA from the Gram Sabha based on a resolution in its favour. Even though it is a tribal area the government refused to recognise the right of the Gram Sabha.
as told over the Phone to Kavita Srivastava
As many of you are aware Himanshu and Kopa of VCA managed to escape Lingagiri in the early hours today through the forest area of that region and got into Bhadrachallam AP more than a hundred kilometres away. The distance between Bhadrachallam and Dantewada is a good two hundred and fifty kilometres.
The moment he got into range he called up his family, his colleagues and friends and supporters and said that he had escaped to Bhadrachallam and would be soon getting back to Dantewada. This is great news and we are glad that Himanshu and Kopa managed to escape the wrath of the local police and Salwa Judum although there are many concerns that still remain. He has addressed the press in Bhadrachallam with Bal Gopalji of HRF who reached late afternoon.
Himanashu gave me a long dictation over the phone of what happened and wanted people to know about what happened in the last four days. I think there are some facts that we need to act upon urgently.
MEMORANDUM GIVEN TO DANTEWADA SP RAHUL SHARMA AND THE COLLETCOR OF DANTEWADA ON DEMOLITION OF VANVASI CHETNA ASHRAM ON MAY 17 2009 BY FACTFINDING TEAM
- The Vanvasi Chetna Ashram (VCA) was implementing various government schemes in the area including Mitanin health programme , watershed development, water and sanitation programme in villages and Salwa judum camps and Himanshu Kumar was also on various government committees including district legal aid committee. It is inexplicable why an ashram run by him should have been demolished.
- We think the government should have been grateful to him as he has been doing this constructive work in the region for the last 17 years, without any vested interest.
- As the matter of land is subjudice the action of the demolition of the ashram by the district administration was unwarranted.
- The authorities’ contention that the land which was earlier agricultural land in government records was changed to revenue forest land , is unprecendented, We think that the due process was not followed in this case.
- The VCA was engaged in the important task of resettling the internally displaced persons in their original villages which no government agency had undertaken inspite of the Supreme Courts instruction to the CG government.
- The team spoke to various persons ( villagers, civil society activists and local media persons ) in Kanwalnar, Lingagiri, Basagudha, Kamaram, Bijapur and Dantewada.All of them confirmed and acclaimed the constructive work that the VCA has been doing in the region
- The resettled villagers need immediate provision of facilities like PDS, primary health, primary education and ;public transport and also to meet their immediate needs for foing agriculture We hope the government would do the needful in this regard without delay.
- We sincerely hope the authorities would take remedial measures at the earliest to mitigate the problems of the VCA and enable to it continue its constructive work in the area.
- Magasaysay award winner, Social Activist- Dr Sandeep Pandey, Lucknow
- President Chhattisgarh Mukti Morcha ( CMM), former MLA-Janak Lal Thakur, Dalli- Rajhara
- Senior Journalist Editor Mainstream- Sumit Chakravartty, New Delhi
- Human Rights Lawyer and Women Rights Activist- Adv Kamayani Bali Mahabal, Mumbai
- Editor Combat Law- Dr Harsh Dobhal, New Delhi
- PUCL Chattisgarh- Vijendra – Raipur
THE DETAILED REPORT WILL FOLLOW
The state has become intolerant after two developments — economic liberalisation and 9/11,” says S A R Geelani, vice-president of the Committee for the Release of Political Prisoners. “Anyone who talks about land rights or opposes the SEZ policy could be called a Maoist or a Naxalite and put in prison. And people who talk about self-determination in Kashmir, Nagaland or Tamil Nadu are labelled terrorists.”
In the absence of POTA and TADA, governments invoke the National Security Act or the state-specific counterpart, like the Chhattisgarh Special Public Security Act, under which Dr Binayak Sen was charged, or the recently amended Unlawful Activities (Prevention) Act.
Bhubaneswar (PTI) Demanding immediate release of POSCO Pratirodh Sangram Samiti (PPSS) leader Abhaya Sahu, social activist Medha Patekar on Sunday asked the Naveen Patnaik government in Orissa to hold talks with the PPSS and CPI on the proposed project of the South Korean steel giant.
“Abhaya Sahu should be released from jail immediately and unconditionally as he was arrested on false and fabricated charges in an arbitrary and anti-democratic manner,” Ms. Patekar told reporters here.
Maintaining that Mr. Sahu, whom she met at Choudwar jail, was not a Maoist, she said if he is not released forthwith a campaign would be launched to press for it as in the case of civil rights activist Binayak Sen.
From Tehelka Cover Story “Binayak & The Tragedy Beyond”
His political concerns are well known. Activist Binayak Sen shares insights into his detention with SHOMA CHAUDHURY
How did your loss of freedom affect you?
(Long pause) As a civil rights worker, never being in jail was a hole in my CV (laughs). But I thought it would be 10- 15 days. If I’d known it would last two years, I’d have been less sanguine. You cannot access any privilege in jail; you are an equal in a way you can never be in the outside world. This may not always be very pleasant, but for me, it was interesting. The physical circumstances were obviously not pleasant, but everyone is coping with the same thing — hot winds, mosquitoes, terrible food — so that didn’t bother me. The jail system runs on corruption. In some ways, this corruption is almost positive because it brings a kind of humanising intervention that the system has completely shut out. So though it’s illegal, almost every inmate has a stove and at six in the morning, you’ll find everyone making dal.
But as you realised you were in for a long haul, did you go through an emotional graph?
Your mind becomes soggy. After a while I couldn’t remember names, familiar words. That used to panic me. We have seven dogs — I couldn’t remember their names. That is how the absence of familiar intercourse impacts you. I was depressed quite often. There were interesting ideas in my head, but I just couldn’t write. There’s an infinite variety of human nature and circumstance on display in jail. This made me think very deeply about categories. You think section 302 is 302 (murder), but it could range from an entirely fabricated case to self-defence to a gang war to a supari (ransom). Yet this range of crime is subsumed under the same legal category. One of my closest friends in jail was a 25-year-old boy who had been arrested when he was 19 for stabbing his father. He had done it as a last resort to prevent his mother from being beaten to death by his drunk father. He’s been convicted to life imprisonment. What’s horrifying is that the authorities are consumed by active contempt for these inmates. Even the most basic human dignity is denied to them. Every evening I saw lambardars beating inmates with lathis and chappals — 10 to a man. There were much worse things as well. But if I complained the authorities looked at me as if I was soft in the head. There are so many people in jail who are innocent, or at least, who carry the idea of their innocence in their heads. And there is nothing ahead for them but this systemic brutalisation. So I had this feeling of helplessness. It was like living through a neardeath experience, watching yourself and your loved ones from a distance — [my wife] Ilina traveling every week by train to meet me for half an hour and then traveling back.
Tehelka Cover Story “Binayak & The Tragedy Beyond”
Far from the national gaze, the establishment practises a dangerous malevolence when confronted with its anti-people policies, reports SHOMA CHAUDHURY from Raipur and Dantewada. Photographs by SHAILENDRA PANDEY
|Old threshold 2.30pm and Binayak Sen finally closes the door of his home to the stream of visitors who have come to see him after his release|
ONE YEAR ago, before the campaign on his behalf had gained m o m e n t u m , TEHELKA did a cover story on Binayak Sen — doctor and human rights activist, jailed on false charges under the draconian Chhattisgarh (People’s) Public Security Act (See TEHELKA: No Country for Good Men). On May 25, when Supreme Court judges Markandeya Katju and Deepak Verma took just sixty seconds to undo an injustice that had been wilfully perpetuated by the State for two long years, it should have been an occasion for another cover story, more celebratory, documenting among other things, Binayak’s wife, Ilina’s Herculean legal struggle for his release. But Binayak and Ilina’s story is merely symbolic of a much bigger, on-going and faceless struggle. And so, even as the human rights community exploded in joy with the May 25 victory, 400 kilometers from Raipur, another big battlefront was being opened.
It is two days after 59-year-old Binayak Sen got to go home. May 28, scalding, red dust everywhere, a hot loo blowing. A man in a white lungi and kurta sits under a leafy tree, listening to ten Gond tribals tell their story of how two nights earlier their village was looted. Every ration burnt. Every goat taken, every hen kidnapped. Not even a little chick left behind. The tribals have trekked from faraway Kamanar village in the hope that this man in white will help them access the ear of the State. It is a difficult proposition because it is the State that has looted the village: How do you lodge an FIR with the police when it is the police that have stolen your chickens?