DR.BINAYAK SEN & TWO OTHERS VS THE STATE

(To be read in continuation of my article of October 27,2010, titled "Arundhati Roy Vs the State" at http://www.southasiaanalysis.org/papers42/paper4128.html)

Dr.Binayak Sen, a paediatrician who is the Vice-President of the People's Union of Civil Liberties (PUCL), an alleged Naxal ideologue Narayan Sanyal and a Kolkata businessman Piyush Guha were sentenced to life imprisonment on December 24,2010, after having been found guilty by Shri B.P.Verma, a sessions judge of Raipur in the State of Chattisgarh, of the charge of sedition by colluding with Maoists to establish a network to fight the state. Dr.Sen had been accused by the police of acting as a courier for Sanyal, who was in jail, by carrying his messages and letters to the underground Maoists.

2.The "Hindu" of December 27 has reported the following police version based on the testimny of a witness by name Anil Kumar Singh: " Anil Kumar Singh claimed that on May 6,2007, he saw Town Inspector B.S.Jagrit detain Mr.Guha near the Raipur railway station. According to Mr.Singh's court testimony, the police searched Mr.Guha's black and blue shoulder bag and found pamphlets supporting the banned Communist Party of India (Maoist), a mobile phone, a rail ticket dated May 6,2007, Rs.40,000 in cash and three letters which, Mr.Guha said, were written by the jailed Narayan Sanyal, an alleged Maoist, and handed over to him by physician and human rights activist Binayak Sen."

3. The judge found the statements of Inspector Jagrit regarding the circumstances under which Guha was arrested and Anil Kumar Singh regarding what he saw and heard on May 6,2007, credible enough to sentence Binayak Sen, Sanyal and Guha to life imprisonment for supporting the CPI (Maoist) and conspiring to commit sedition. The "Hindu" has reported as follows: " Despite holding Mr.Guha in prison for nearly four years and producing 97 witnesses, the Chattisgarh Police have been unable to explain how Mr.Guha was arrested, how he got hold of the letters written by Mr.Sanyal and how they relied on Mr.Anil Singh's testimony that he heard Mr.Guha tell the police that Dr.Sen gave him the letters."

4.Expressing shock over the awarding of the life sentence to Binayak Sen on charges of sedition, over 80 intellectuals including Noam Chomsky demanded on December 27 that his appeal be heard 'expeditiously' with 'enlightened reason' and sought his immediate release on bail. They claimed that Sen never resorted to violence or incited anyone else to do so. On the contrary, according to them,as a doctor and a human rights activist, he stood up in defence of the rights of the downtrodden."Yet he has been handed down this sentence whose savagery is unbelievable. Such an action on the part of the State in the name of preserving the Constitutional order will only serve to undermine that Constitutional order itself.It will inevitably raise the thought in the minds of many that an order within which the activities of a person like Dr Sen can be held to be seditious is not worth defending."

5. Dr.Sen's supporters have started an online campaign for his release by posting a petition on the Internet. It alleges: "The charges against Dr Sen, of allegedly aiding outlawed Maoist rebels in Chhattisgarh, have not been corroborated by any of the witnesses or evidence produced in court so far.On the contrary, there have been numerous instances of the prosecution resorting to the use of fabricated documents and contradictory testimonies to press its case."

6.The conviction and sentencing of Dr.Sen and two others have been questioned by the critics on grounds of the reliability of the facts as adduced before the court and the interpretation of the laws relating to sedition. The police version regarding the date of the arrest of Guha and the circumstances under which he was arrested has been questioned. It has been alleged that he was already in the informal custody of the police for five days before the police officially showed his arrest. There is apparently no independent corroboration of Guha's statements that the documents allegedly written by Sanyal had been brought out of jail by Sen after one of his meetings with Sanyal and handed over to Guha. The conviction of Sen seems to have been based largely on the uncorroborated testimony of Anil Kumar Singh who claims to have heard Guha tell the police that Sen gave him the letters from Sanyal.

7. The awarding of the extreme penalty of life sentence on the basis of an independently uncorroborated testimony of a single witness has shocked the critics of the judgement. Questions have also been raised regarding the interpretation of the laws relating to sedition. To prove a charge of sedition, it is necessary to show that Sen---even if he had received the letters from Sanyal as alleged by the police--- had intended to cause disaffection against the State and promote acts of violence.

8. Certain mitigating circumstances should have been taken into consideration while awarding the punishment.Among such circumstances, one could mention, firstly, the benign personality of Dr.Sen as a human rights activist and as a humanitarian medical worker; secondly, the fact that he had not come to notice in the past for indulging in or advocating acts of violence; and, thirdly, the fact that the prosecution case was largely based on circumstantial evidence as narrated by the police without credible corroboration. In many terrorism-related cases in other countries, it has been held that convictions can be awarded purely on the basis of circumstantial evidence provided there was a continuous chain of such evidence. In the case of Sen, a continuous chain would mean evidence to connect his visit to the jail to meet Sanyal, his receiving the letters, his smuggling them out and handing them over to Guha.The only facts in the chain which the police has apparently been able to establish are that the letters were recovered from the possession of Guha who stated that he got them from Sen.

9. A careful identification of the missing links in the chain and an examination of the evidence regarding the benign personality of Sen might have led to the mitigating circumstances being given greater weight than they apparently were. One would find it difficult to avoid the conclusion that the prosecution and the court had adopted a narrowly legalistic approach to the case without seeing it in the broader context of the benign personality of Sen. Available reports indicate that he might be a peripheral sympathiser of the Maoists, but he definitely was a not a hard-core Maoist.

10. It has been reported that one of the reasons the Judge awarded the extreme penalty of life sentence is the fact that the Maoists in the area have been indulging in savage acts of violence directed against the security forces and innocent civilians. This fact could have been a valid ground for awarding a deterrent punishment to those involved in acts of violence when they are arrested and prosecuted, but not to those like Sen who had no previous proven history of indulging in or advocating violence.

11. Our counter-insurgency operations against the Maoists should be more nuanced than they are at present----marked by strong action against those in the hard core indulging in or advocating violence and a more sympathetic approach to those like Sen, who do not belong to the hard core and do not advocate violence. By treating both as no different from each other who deserve deterrent punishment, we will be driving more people who are now merely in the periphery into the arms of the hard core. The police should not unwittingly become a source of aggravation of the problem. ( 28-12-10)

( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai. E-mail: seventyone2@gmail.com )