Bail and justice

Published : Jun 19, 2009 00:00 IST

in New Delhi

THE Supreme Courts direction on May 25 to release Dr. Binayak Sen, vice-president of the Peoples Union for Civil Liberties (PUCL), on bail from the Raipur Central Jail marks a milestone in the history of the civil liberties movement in India. Never before has the bail plea of an individual unjustly kept in prison been the subject of such an intense campaign by intellectuals and activists across the world.

The campaign seeking Sens freedom intensified after 22 Nobel Prize winners, including Amartya Sen, signed a public statement on May 9 last year describing him as a professional colleague and appealing to the President and the Prime Minister to ensure his release so that he could receive in person the prestigious Jonathan Mann Award for Global Health and Human Rights in Washington. The helplessness of the Centre, and the refusal of the Chhattisgarh government to oblige only indicated that the struggle for Sens freedom could be long and daunting.

When the Supreme Courts Vacation Bench, comprising Justices Markandey Katju and Deepak Verma, ordered his release on his furnishing a personal bond to the satisfaction of the trial court in Raipur, the Bench had understood the merits of his plea. To the surprise of many of Sens well-wishers, the Bench did not find it necessary to listen to his senior counsel Shanti Bhushans arguments in support of his release. Nor was it interested in listening to the Chhattisgarh governments counsel, Mukul Rohatgi, on why bail should not be granted to him. The Bench had already made up its mind, on the basis of the facts of the case.

A number of observers, however, are surprised more about the fact that it took two years for him to come out on bail.

Sen is a renowned paediatrician, who graduated from the Christian Medical College in Vellore, Tamil Nadu. From 1976 to 1978, he was a faculty member of the Centre for Social Medicine and Community Health at Jawaharlal Nehru University, New Delhi. He left this academic job to work in a community-based rural health centre in Hoshangabad district of Madhya Pradesh with its focus on tuberculosis-related problems. During the late 1970s, he became an active member of the Medico Friend Circle, a national organisation of health professionals working for an alternative health system that is responsive to the needs of the poor.

Later, he worked among mine workers in Dalli Rajahara, Chhattisgarh, addressing their health needs and helping them set up and manage their own hospital. Sen then moved to a mission hospital in Tilda where he worked in paediatrics and community health. After the murder of the trade union leader Shankar Guha Niyogi, with whom he was closely associated, Sen shifted to Raipur.

From 1991, Sen has worked in developing relevant models of primary health care in Chhattisgarh. He was a member of the State advisory committee to initiate the community-based health worker programme across Chhattisgarh, now well known as the Mitanin programme. The programme involved training village women in primary and preventive health care in order to discourage harmful practices that resulted in maternal and infant deaths. He also served at a weekly clinic in a tribal community in Dhamtari district. He continued to provide health care to the children of the marginalised, especially migrant labourers. In recognition of his work, the Christian Medical College conferred on him the Paul Harrison Award in 2004, the highest award given by the college to an alumnus for distinguished service in rural areas.

Meanwhile, Sen became the general secretary of the PUCLs State committee and then vice-president of its national committee. As the general secretary, he helped organise fact-finding campaigns on human rights violations in the State including custodial deaths, fake encounters and hunger deaths and dysentery epidemics and malnutrition-related cases. He also brought to light the large-scale oppression and malgovernance within the Salwa Judum, a state-sponsored anti-naxalite force in Dantewada district.

Sen was arrested on May 14, 2007, under the provisions of the Unlawful Activities (Prevention) Act, 1967, the Chhattisgarh Special Public Security Act, 2005, and the Indian Penal Code. The accusations against him were that he used to carry secret letters written by an accused lodged in the Raipur Central Jail, Narayan Sanyal, to his associates regarding the monitoring of the unlawful activities of the banned organisation, the Communist Party of India (Marxist-Leninist), or CPI(M-L), to which Sanyal belongs.

The prosecution alleged that Sen met Sanyal 33 times in the Raipur Central Jail between May 26, 2006, and April 30, 2007. Sen was also accused of arranging a house on rent for the activities of the CPI(M-L) and planning to commit, and being deeply involved in, unlawful activities in Chhattisgarh.

On May 6, 2007, the police apprehended Piyush Guha, a CPI(M-L) activist, and recovered three letters and Rs.49,000 from him. The police claimed that Guha had told them that Sanyal had given those letters to Sen who, in turn, handed them over to Guha for delivering them to certain other persons.

The prosecution alleged that Sen played a vital role in communicating the instructions of Sanyal to the field workers of the CPI(M-L) and promoted naxalite activities in Chhattisgarh. The police also relied on the seizure of a computer and eight CDs allegedly containing objectionable material pertaining to naxalite activities, from Sens residence during a search on May 19, 2007.

Although the Chhattisgarh High Court found prima facie evidence that Sen was associated with the CPI (M-L) and therefore refused to release him on bail, many of the allegations against him were demolished during the trial. None of the 38 prosecution witnesses examined by the trial court supported the allegations against Sen.

The police relied on the custodial confession of Guha, which is legally inadmissible. Guha subsequently stated before a magistrate that he had been tortured by the police to make the confession. Understandably, the prosecution did not list him as a witness in the current trial.

The prosecution alleged that Sen and Guha were close acquaintances who met regularly in Raipur hotels. As evidence, the prosecution relied on statements of some hotel owners and employees, which were made to the police as witnesses. But these witnesses later turned hostile and disowned these statements.

The prosecution alleged that Sen had visited Sanyal 33 times in jail, where he falsely posed as the latters relative. Sens wife, Ilina, filed a Right to Information application to gain access to the jail records. The records showed that Sen had applied for jail visits using the PUCL letter-head, rather than posing himself as Sanyals relative.

The police might have recovered some letters with objectionable contents, written by Sanyal, from the possession of Guha, but there is no evidence to suggest that Guha received them from Sen.

The police tried to show further evidence of Sens alleged support to naxalites in the form of some documents and computer seized from his house. But they apparently did not distinguish between Sens critique of the Salwa Judum and globalisation, which was evident from these recoveries and his alleged pro-naxalite leanings. Neither the Sessions Court nor the High Court, which refused him bail, made this distinction.

In a letter to Prime Minister Manmohan Singh on April 17, 2009, former Supreme Court Judge V.R. Krishna Iyer pointed out some facts of the trial: By March 2009, of the 83 witnesses listed for deposition by the prosecution as part of the original charge sheet, 16 were dropped by the prosecutors themselves and six declared hostile while 61 others have deposed without corroborating any of the accusations against Dr. Sen. Irrespective of the merits of the case against Dr. Sen, there are very disturbing aspects to the way the trial process has been carried out so far. This is a case of grave injustice which is a cause of much shame to Indian democracy.

In 2005, the Supreme Court made it imperative for the courts to consider certain matters in an application for bail. These are a) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; b) nature and gravity of the charge; c) severity of the punishment in the event of conviction; d) danger of the accused absconding or fleeing, if released on bail; e) character, behaviour, means, position and standing of the accused; f) likelihood of the offence being repeated; g) reasonable apprehension of the witnesses being influenced; and h) danger of justice being thwarted by grant of bail.

In refusing bail to Sen last year, both the High Court and the Supreme Court relied on the polices allegations, as the charges against him had not been framed. To grant bail, there is no necessity to do detailed examination of the evidence and documentation of the merits of the case.

From the High Courts judgment, it is not clear how it concluded that the evidence against Sen was prima facie sufficient to refuse him bail. By refusing to interfere with the High Courts questionable judgment on December 10, 2007 (Human Rights Day), the Supreme Court paradoxically reinforced the view that it was not concerned with the rights of commoners. The Vacation Benchs direction has helped somewhat to reverse that perception.

The direction came as a result of Sens plea that he was suffering from a heart ailment, which required timely medical intervention at a hospital of his choice. In fact, that was one of the grounds for seeking bail, so that he could go to Vellore for treatment.

During the hearing on May 4, another Bench of the Supreme Court asked the State government to provide him the best possible medical treatment within the State, and adjourned the case to July, with the liberty to Sen to approach the Vacation Bench for urgent relief, if necessary. The May 4 decision failed to satisfy Sens family and friends, who were suspicious of the State governments sincerity in ensuring Sens good health. The grant of unconditional bail by another Bench of the Supreme Court has thus vindicated these suspicions.

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