Binayak Sen and the Right to a Fair Trial

Mukul Sharma in Kafila

The right to a fair trial is a cornerstone of democratic societies. How a person is treated, when accused of a crime, provides a concrete demonstration of how far a State respects human rights. Detention is ‘arbitrary’, where there are often grave violations of the right to a fair trial. Detention and imprisonment, which may be lawful under national standards, are considered ‘unlawful’ under international standards. A fair trial is indispensable for the protection of other rights, such as the right to freedom from torture, the right to life, and the right to freedom of expression. This right should never be compromised. However, throughout the country, people are being detained and imprisoned without a fair trial. In these circumstances, many face torture and other forms of ill-treatment. The continued detention of Dr. Binayak Sen, Vice-President of India’s leading human rights organization, the People’s Union for Civil Liberties (PUCL), should trigger a debate, not only in Chhattisgarh, but also around the country, about whether and to what extent the right to a fair trial may be compromised in the name of security.

Dr. Sen was detained on 14 May 2007. However, charges were not filed properly for seven months. In the meantime, he was denied bail, and was kept in solitary confinement for three weeks in March-April 2008. Much delayed, his trial commenced on 30 April 2008 and was adjourned till July. Before the trial began, the presiding judge announced that only one human rights activist could attend the hearing at a time, though he later relented, making the trial public. In jail, Dr. Sen continued to suffer from severe gout, which posed difficulties for him to take care of his daily needs. He also suffered from frequent micturation, indicative of a prostrate problem. Despite appeals to organize proper medical treatment as per the jail rules, no concrete action came from the trial court. Before and during the trial proceedings, the prosecution and the police were attempting to intimidate the family members and colleagues of Dr. Sen. The police so far has not produced any evidence from the materials in its possession, including a computer hard disk that they had seized from Dr. Sen’s residence and clinic. The police have yet to return the computer disk, ten months after getting it examined from the Hyderabad-based Forensic Science Laboratory, giving rise to doubts that it was being tampered to manufacture evidence. On every occasion that Dr. Sen was brought to the court, there was massive police presence, leading to an atmosphere of fear and intimidation. Dr. Sen has been charged under several sections of the Chhattisgarh Public Security Act, 2005 (CSPSA), the Unlawful activities (Prevention) Act (UAPA), 1967, and the Indian Penal Code. Both the CSPSA and the UAPA contain vague and sweeping definitions of ‘unlawful activities’, for which organizations may be rendered ‘unlawful’, such as ‘uttering words…which propound the disobedience of established law and its institutions’. If convicted, Dr. Sen could be sentenced to life imprisonment.

Abuse of the criminal process in a trial has a number of different, but related, aspects. Delay in the procedure, loss or destruction of evidence, abuse of power by the executive, use of unlawfully obtained evidence, prosecutor’s improper motives, denial of the rights of victims — these are some of the several serious concerns raised, regarding the everyday practices of the criminal justice system in the country. Delay is a cause of serious injustices in India. Lengthy periods of per-trial imprisonment, anxiety, expenses, loss of days and memory — all lead to a situation where the accused cannot get justice. Further, in criminal cases the prosecution has a virtual monopoly on investigation. It is therefore axiomatic that the prosecution should not be able to evade their duties of disclosure, by suppressing, loosing, preventing or destroying evidence. Prosecutions in various situations, including in conflict zones, are resulting in an abuse of power by the executive, where unlawfulness or breach of law by the State agents has made it virtually impossible to give the accused a fair trial. So many times the evidences are obtained unlawfully, the admission of which has an adverse effect on the fairness of the proceedings. Not only this, the circumstances in which evidences are obtained are crucial. For example, in any proceedings, international law strictly prohibits the admission of evidence of statements obtained by torture.

Against these methods, there are various kinds of international human rights standards, national laws and court judgments, relevant to fair trials. Impartial, constitutional bodies exist, that give authoritative guidance on how to interpret these standards. Pre-trial rights (the right to liberty, the right of people in custody to information, the right to legal counsel before trial, the right of detainees to have access to the outside world, the right to be brought promptly before a judge or other judicial officer, the right during interrogation, etc.), and rights at trial (the right to trial by a competent, independent and impartial court, the right to a fair hearing, the right to a public hearing, the presumption of innocence, the right to be tried without undue delay, the right to be present at trial and appeal, the right to call and examine witnesses, etc.), are many. Thus, assessing the fairness of a criminal trial, and establishing peoples’ rights is complex and multi-faceted. The severe shortcomings in our criminal justice system, and the unaccountability of the police, administration and judiciary, makes it virtually impossible to establish the right to a fair trial in contemporary India.

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August 23, 2008 | Filed Under articles | 2 Comments 

Update on PUCL challenge to Chattisgarh Special Public security Act

SUPREME COURT DIRECTS PUCL TO CHALLENGE THE DRACONIAN LAW IN CHHATTISGARH HIGH COURT

The Supreme Court of India has permitted the PUCL to withdraw its Petition challenging the constitutionality of The Chhattisgarh Special Public Security Act 2005, and said in the order that the petitioners were at “liberty to go to the High Court”.

Appearing for the Petitioners, Mr. Rajendar Sachar, Former Chief Justice of Delhi High Court & Former National President of the PUCL argued that the Chhattisgarh Act 2005 was linked up with the Unlawful Activities Prevention Act 1967 (Amended in 2004), and the main issue before the Apex Court was to examine whether the States could bring in similar laws when the Central Act like UAPA was already applicable to the entire country. Mr. Sachar also gave example of other State legislations like the Maharashtra Control of Organized Crimes Act, 1999 (MCOCA), whose provisions were under challenge before this Hon’ble Court. The questions relating to violation of constitutional provisions,human rights and civil liberties are required to be examined by this Hon’ble Court.

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July 30, 2008 | Filed Under announcements | 1 Comment 

Dr Binayak Sen as I know him: Dr Sandeep Pandey

Dr Sandeep Pandey

I first met Binayak, wife Ilina and their two daughters Aparajita and Pranhita at the conclusion of Pokaran to Sarnath ‘Global Peace March’ on 6th August, 1999 at the Central Tibetan Institute of Higher Learning in Sarnath, near Varanasi . Sarnath is the place where Gautam Buddha delivered sermon to his first five disciples after attaining enlightenment at Bodh Gaya. The peace march was symbolically between the place of destruction - Pokaran, to the place of peace - Sarnath. It began exactly a year after on the day when India tested the nuclear weapons in 1998 and concluded on the Hiroshima Day. The objective of the peace march was total global nuclear disarmament. Ilina had also brought with her drawings made by some children on the theme of nuclear disarmament. While the march was in progress for 88 days and 1500 kms, the Sen family was busy organizing activities in Raipur and their work area in its support. We also later got a chance to work together for the Coalition for Nuclear Disarmament and Peace (CNDP), a national level platform of organizations and individuals committed towards nuclear disarmament.

Dr. Binayak Sen is currently in Raipur jail. He has been targeted under the draconian Chattisgarh Special Public Security Act, 2005, and the Unlawful Activities (Prevention) Act, 2004, to silence the voices of humanity and justice. He is charged with sedition and conspiracy to wage war against the state, among other things. His trail has begun after a year in jail and his bail has been refused even by the Supreme Court. The six prosecution witnesses, out of a total of 89, who have been presented in court so far have failed to stand the cross examination. There doesn’t seem to be an iota of evidence against him. Yet, he is being illegally detained so that nobody dare question the experiment of Salwa Judum in Chattisgarh which legitimizes extra-constitutional violence and pits adivasis against adivasis. Binayak, who is the Chattisgarh General Secretary of nationally the most well known human rights organization, People’s Union for Civil Liberties, which was founded by none other than Loknayak Jayaprakash Narayan, exposed the killing of three teachers and one student, all innocent, in Gopapalli, Dist. Dantewada on 4th November, 2004, which was being projected as an encounter by the police. In November 2005 Binayak organized an all India team of human rights activists to visit Dantewada and study the systematic decimation, rape, loot, arson of ordinary adivasis and their properties by the police and Special Police Officers in the name of Salwa Judum. Binayak also objected to the brutal oppression by police of adivasis who were opposing the take over of their lands in Bastar for setting up a Tata-Essar industry. How could the Chattisgarh government tolerate Binayak who was out to expose what they claim as their successful experiment of countering the Naxalites through a ’self motivated people’s movement,’ the Salwa Judum?

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June 19, 2008 | Filed Under statements | Leave a Comment 

Caught between Naxals and police: Another Journalist Arrested under CSPSA

Joseph John
Posted online: Wednesday, June 11, 2008 at 2348 hrs IST
Indian Express

Raipur, June 10
As the international campaign for the release of human rights activist and Peoples Union for Civil Liberties (PUCL) leader Dr Binayak Sen gathers steam, Sai Reddy, a rural journalist arrested under the same Chhattisgarh Special Public Security Act, is fighting a lonely battle for freedom, away from the media glare.

In many ways, Reddy’s case highlights the predicament not just of journalists working in this conflict zone but also of the common people living in Bastar. His is the story of a people caught between Naxals and police.

Reddy, 46, a resident of Basaguda in Naxalite-hit Bijapur district, was arrested on March 1. Police say he was detained after an arrested Naxalite, Rambabu, revealed he had “connections” with him and that Naxals took their ration from a shop run by his wife. Read more

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June 13, 2008 | Filed Under Press Reports | Leave a Comment 

Call to resist Silent Emergency!.. Global protests for Binayak Sen’s Release

PRESS RELEASE
14th May 2008

Hundreds of activists in India and across the world today called for the unconditional release of jailed pediatrician Dr Binayak Sen, dubbing his incarceration a gross miscarriage of justice and a shame to Indian democracy.

On the first anniversary of the arrest of the renowned health and human rights activist they also demanded the scrapping of the Chhattisgarh State Special Security Act, a draconian legislation under which Dr Sen was detained. The protestors quoted the recent statement signed by 22 Nobel Laureates that says the internal security law does not ‘comport with international human rights standards’.

Candlelight vigils, fasts, public meetings and rallies in support of Dr Sen’s release were held in cities like New York, London, Paris, Stockholm, New Delhi, Raipur, Chennai, Bangalore, Kolkata and Pune. Apart from rights activists large number medical professionals all over the world took part in the protests.

In New Delhi in a memo to the Chhattisgarh Chief Minister Dr Raman Singh, the Committee for the Release of Dr Binayak Sen said that the trumped up charges of ‘treason’, and ‘abetting unlawful activities’ foisted on Dr Sen have so far not been backed up with any evidence. The judicial process initiated against him is only meant to harass him personally and intimidate all those working for human rights in Chattisgarh.

The memo said that the arrest of Chhattisgarh PUCL executive member and independent filmmaker Ajay TG on 5 May 2008 on similar flimsy and vague charges exposed the desperation of the Chhattisgarh government following its inability to substantiate charges against Dr Sen.

The Committee for the Release of Dr Binayak Sen has made the following demands to the Chhattisgarh government:

  • Drop all charges against Dr Binayak Sen, release him unconditionally and pay compensation for the harassment and loss of liberty he has suffered due to his detention;
  • Drop all charges against Ajay TG, who is being victimised by your government for being an active member of PUCL and supporting the release of Dr Sen;
  • Scrap the Chattisgarh State Public Security Act that violates the basic principles of the Indian Constitution as well as internationally accepted norms of justice and rule of law;
  • Stop encouraging all-out civil war in Chattisgarh in the name of ‘Salwa Judum’, which even the Supreme Court has indicated is unconstitutional and amounting to abetment of murder by the state.
  • Ensure a just and honest governance that improves the lives of millions of desperately poor people in Chattisgarh

Activists supporting Dr Sen have vowed to continue their peaceful agitation for his release and also raise the issue of other political prisoners around India who have been detained under various undemocratic laws. They have called upon the people of India to resist the imposition of a silent Emergency on the country in the name of ‘national security’ and containing terrorism.

For further information contact:

  • Sreerekha Ph: 9868120339
  • Satya Sivararaman Ph: 9818514952
  • Kavita Srivastava Ph: 09351562965

Visit: www.binayaksen.net and www.freebinayaksen.org and www.pudr.org for more details

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May 14, 2008 | Filed Under Global day of protest, Press Release, Protests | Leave a Comment 

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