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.


Derogations are many, and they are now being misused to illegitimately deny people their rights, under the cloak of a threat to national security. The police, army and administration become a law in themselves. However, seeing the various experiences in conflict zones, it must be emphasized that some core fair trial rights, and the right to habeas corpus, should be considered non-derogable. In such cases, the monitoring of trials is an important effort to protect rights. Public or experts’ monitoring influences both the judge and the prosecutor to carry out their duties with impartiality and professionalism. The public has a right to know how justice is administered and what decisions are reached by the judicial system.


When an individual stands trial on criminal charges, he or she is confronted by the whole machinery of the State. Every criminal trial tests the State’s commitment to respect for human rights. The test is even more severe when the accused is a political prisoner; when the authorities suspect the person of being a threat to those in power. When people are subjected to unfair trials, justice cannot be served. When people are tortured or ill-treated by law enforcement officials, when innocent individuals are convicted, when trials are manifestly unfair, or are perceived to be unfair, the justice system itself loses credibility. Unless human rights are upheld in the police station, the interrogation room, the detention centre, the court and the prison cell, the government has failed in its duties and betrayed its responsibilities. The risk of human rights abuses starts at the very first moment the officials raise suspicions against a person, through the moment of arrest, in pre-trial detention, during the trial, during all appeals, and right to the imposition of any punishment. The human rights community has developed fair trial standards, which are designed to define and protect people’s rights through all these stages. They set out the minimum guarantees that all systems should provide. These should be the basis for a collective agreement amongst the community of state actors, for treating people accused of crimes.


Either a fair trial within a reasonable time period, or set the prisoner free without conditions; either an interference by an independent judicial authority to stop prosecutions which result from an abuse of power by the executive, or bail out/release the prisoner immediately — decisive interventions are the need of the hour.

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