December 23, 2010.
A Statement by the Asian Human Rights Commission
PAKISTAN: Sharia Court Launches Major Challenge to Protection of Women Act
On 22 December 2010, after three years and four petitions, the Federal Shariat Court (FSC) of Pakistan declared several critical clauses of the Protection of Women (Criminal Laws Amendment) Act of 2006 unconstitutional. In place of this act that created protections for women, the FSC supports the reinstatement of the Hudood Ordinances VII of 1979, which were used to discriminate against, falsely convict and imprison, and otherwise destroy the lives of hundreds of women.
Although the FSC does not have the power to make or change law, Article 203DD of the Constitution does give the FSC to rule any law which is “repugnant” to Islam based on the Holy Quran and the Sunnah of the Holy Prophet (PBUH). The dangerous, potentially destabilising implications will not be legal but rather primarily social and political, as the FSC declaration will incite Islamic fundamentalists and their supporters to suppress the rights of women for fair trial which they have achieved after a long history of struggle.
The petitioners sought to diminish the Protection of Women Act and reinstate provisions of the Hudood Ordinances concerning the kidnapping, abduction, or forced induction of women for purposes of marriage; kidnapping and abduction to submit the victim to “unnatural lust”; the selling or buying of a person for prostitution; cohabitation under false pretences, such as claims of lawful marriage; and enticing or kidnapping a woman with criminal intent.
The FSC has claimed that elements of the Protection of Women Act are not consistent with Islam and thus violate Article 203DD because they conflict with the FSC’s support of the Hudood Ordinances. The sections in question, 11, 25, and 28, are those pertaining to zina (adultery, rape) and qazf (enforcement of hadd). The FSC advocates the restoration of provisions of Hudood that require women who have been raped to produce four witnesses to support her testimony—and the reestablishment of the right of police to arrest women on a charge of adultery on the basis of their report of rape.
The court also held that sections 48 and 49 of the Control of Narcotics Substances Act of 1997 and portions of the Anti-Terrorism Act of 1997 fall under the Hudood Ordinances and should not give judicial powers to the high court instead of deferring to the FSC. The court would attempt to extent the term “Hudood” to cover apostasy, human trafficking, war against the state, and the right of retaliation. The FSC stated that the provisions it states are unconstitutional should be eliminated by 22 June 2011.
The FSC does not have the legal authority to overturn these provisions of the Protection of Women Act, the Control of Narcotics Substances Act, or the Anti-Terrorism Act. The former president of the Supreme Court Bar Association, Qazi Anwer, stated that the FSC does not have the constitutional authority to declare laws unconstitutional. Only the high courts and the Supreme Court have that power. Meanwhile, Parliament is the only body that can make laws or amend the Constitution.
Yet the implications of the FSC declaration will be tremendous for Pakistan. Of most concern is the effect the ruling will have on Islamic fundamentalists and the likelihood of a resurgence of support for the Hudood Ordinances and the repeal of the Women’s Protection Act. Extremists may start campaigns against women’s rights and protections similar to those currently ongoing surrounding blasphemy laws. The possibility that these fundamentalists may be incited to vandalism, violence, and extrajudicial killings is very real.
Beyond civil society, conflict and insecurity could provoke the extra constitutional forces to take action to support this extreme religious group over secular opponents—and invite the involvement of external actors which would prefer an Islamic fundamentalist government in Pakistan. The effect may be the destabilization of the government as well as the erosion of authority and support for democratic and civilian rule.
Not so long ago the defeat of the right wing candidates in the municipal elections in the two major cities in Greece, Athens and Thessaloniki, would have been followed by scenes of popular enthusiasm in the streets throughout the night. There was nothing like that this time, when the right was defeated in cities where it had ruled for decades!
There are at least two reasons for this: the depth of the crisis and its impact on the lives of the majority of the population do not encourage enthusiasm for such “victories” and, linked to this, the fact that in the two cities, the two candidates were elected by approximately one sixth of the voters. The most visible lesson of the municipal and regional elections of November 7 and 14, notwithstanding comments from foreign newspapers on the alleged support of the population for the dominant party, was that they represented a scathing disavowal of PASOK and the right, although, despite encouraging results for the radical anti-capitalist left, a political alternative to the current governments has not yet emerged.
As expected, the draconian measures required by the IMF, the European Union and Bank – a sinister trio known as the “troika” here - have had only one effect: to accentuate the crisis, which sees every day more misery (the services of the Church, which in this country provide a good part of social assistance, indicate that request for help are increasing sharply). In addition, the 2009 deficit, already significant, has been revised upward, from 13.6% of GDP to 15.4%, which will result in new demands from the troika, which has long stressed anyway that the state does not bring enough money into its coffers and spends too much. A delegation from the troika which arrived in Athens on November 15 – to be welcomed by a rally and a demonstration called by the KKE (Greek Communist Party) and the radical and anti-capitalist left – made its priorities known: strengthening the attacks on the population by attacking the public sector and adopting new work contracts with less pay than that laid down in collective agreements. Already in March, they had said: “Besides the wages you must cut, you must dismiss 200,000 workers in this sector!” On November 17, European officials indicated that the state should save 4.9 billion euros next year: Obviously nobody believes Papandreou when he assures them that there will be no dismissals. The government also refers to necessary reductions in the health sector. Recent weeks have seen very violent attacks in some areas, including in commerce where, apart from the closure of many small shops, big chains are also closing down: this is the case with FNAC, which only recently triumphantly arrived in Greece, while on November 17, the ALDI supermarket chain announced its closure, with 700 employees thrown out of work.
Another sector openly in crisis is the politically influential one of the press: the major group Lambrakis, with a tradition of established cultural patronage (the opera in Athens, the “Mégaro Moussikis” was funded by them), has just closed an old publishing house, Ellinika Grammata, throwing around a hundred employees out of work, while redundancies are raining down in the newspapers, of which the best-known are “To Vima” and “Ta Nea”. We are also seeing public wealth stripping operations. Thus, a good part of the port of Piraeus has been sold to a Chinese group while an agreement is planned to sell off part of the seafront close to Athens to install casinos and luxury accommodation. So, whether or not the “Socialist” government discusses a new debt repayment schedule, what is certain is that new measures of economic strangulation of the population will not be delayed, possibly connected with the negotiation of a new memorandum.
Faced with all this, the workers try to resist, there are solidarity mobilizations, but these reactions remain very much smaller than the growing mobilization of spring. Working to connect all these struggles and prepare an overall offensive against the policies of Papandreou and the troika are matters of urgency. Since early November, it is now possible in support of this task to point to the results of the municipal and regional elections which saw, albeit in a fragmented manner, political tendencies to the left of the PASOK gaining 1.2 million votes out of approximately 6 million voters.
Aware of its discredit, PASOK had planned to focus the campaign solely on local issues, wanting to highlight its modernism represented by its Kallikratis programme of “bringing the institutions closer to the citizen”. However, this programme, for which PASOK has spared no advertising expenses, translates notably into the merger of the 1,004 existing communes into 370 super-communes, while administrative regions have been merged into 13 “super-regions. The logic of this model plan of liberal technocracy fits in with the anti-worker measures: indeed, the management of these super-communes involves public disengagement to offload onto private companies such tasks such as cleaning, green spaces, etc. The consequences for employment are mentioned above: in general, public companies are in the firing line (with the threat of removal of 60,000 contract workers) and the principle is to not replace 4 civil servants out of 5 leaving. And it is precisely by making the link between the local and national scales that the radical and anti-capitalist left has campaigned since the spring against the Kallikratis programme which in reality concerns many more people than this current alone.
But after having attempted, unsuccessfully, to lull everybody to sleep with the refrain of strictly local elections, PASOK abruptly changed its tune: two weeks before the elections, the issues had without explanation become so national that Papandreou was simply threatening to hold parliamentary elections as soon as December if his policy was not approved, without moreover defining the requisite approval threshold percentages!
Why this blackmail? In fact, PASOK never risked coming second: they were ten points ahead of the right wing New Democracy in the parliamentary elections of 2009, so there was no suspense! The real issue was that of PASOK voter disaffection and therefore of the necessary credit to continue this policy of smashing all social gains. Late August polls gave 28.6% for PASOK (43.9% in the elections of October 2009), 21.1% for the ND (33.5%), 9% for the KKE (7.5%), and 17% for small parties or spoiled votes with 10% being don’t knows. During the campaign the disillusionment of PASOK voters was evident at meetings: thus in the PASOK stronghold of Patras (among the five biggest cities in the country) Papandreou could not start his meeting due to the low attendance! This note is also verified by the victory of a “diverse left” candidate’ (supported by Synaspismos) above the PASOK candidate in Patras.
Overnight, Papandreou therefore turned to blackmail of the “me or chaos” type, with abject populist arguments challenging the workers’ mobilization: "If the interest groups that we have affected with our reforms are saying “that’s enough!”, then I will have no other alternative than to address myself to the Greek people.” Later, he said: “I admit that some changes, imposed out of necessity, have hurt workers, who are not responsible for the crisis. Yet maturity is required also in the trade unions: the crisis must transform all of us.” (November 6, 2010 “Eleftherotypia”). A dramatisation which suddenly forgot the local issues but justified all those who had insisted for weeks on the importance of this election for beating not only PASOK and the right, but also the anti-worker policies.
Because the main parties were present in all 13 regions, the regional elections constituted a good reference in relation to last year’s parliamentary elections. We should however be careful: the fare right LAOS only ran in six regions as such, SYRIZA was challenged by a right wing split, Aristeri Dimokratiki (Democratic left), and lists supported by Antarsya were present in 11 regions.
In any case what leaps out is the incredibly high abstention rates: running at 2.88 million votes in October 2009, it was for the first round of the regional elections 3.81 million out of a total of 9.81 million registered voters, with additionally 9.10% spoiled ballots. In the second round, which in the regional elections involved PASOK and the right alone, the abstention rate went from 39% to 53%, with an additional 11.6% of spoiled ballots! Nothing in these figures justifies the view of some European newspapers which saw these results as a successful gamble for Papandreou or as the Prime Minister escaping lightly!
In fact, the scale of the setback is even clearer in that PASOK, despite the blackmail of its leader, paid a heavy price: in the first round of the regional elections. PASOK lost approximately 1,150,000 votes, with the region of Attica, comprising one third of the voters and the most industrialised area, accounting for a loss of 446,000 votes (-7%). It counted on certain victory in the first round in three regions: it won two, including the fiefdom of Crete, where it won 50.3%, losing 71,000 votes, or 8.4%! In the third “safe” area, it lost 90,000 votes, or 9%, winning a total of 43%. In the Peloponnese, the PASOK candidate was a former right wing minister, supported also by LAOS and in Attica, if the candidate for PASOK was finally elected in the 2nd round, it was with an abstention rate of 58%, a total of 16% spoiled ballots and, here also, the support of LAOS. In the municipal elections, the two major defeats for the right did not mean a victory for PASOK alone: in Athens, the candidate Kaminis was in the second round also supported by the Greens, by Aristeri Dimokratia and by some right wing sectors, the same being true of Boutaris in Thessaloniki. In both cases against a background of gigantic abstention rates, about 65%. In addition, PASOK lost significant towns like the suburb of Aghia Paraskevi, the big city of Patras, in a duel to its left, as in the suburb of Elliniko, where the outgoing mayor, an activist who had led radical mobilizations, was supported by the Greens, SYRIZA, ANTARSYA and other left forces. In other popular suburbs, PASOK was beaten by left lists: Kaisariani, Keratsini, Elefsina and so on. With such results, it is clear that this is a major disavowal of PASOK.
The right is now headed by the former leader of a dissident nationalist group within the ND, who has the difficult task of restoring the fortunes of a party reeling from its heavy defeat last year as well as a series of scandals for which trials are currently underway. As with Papandreou for PASOK, Antonis Samaras sees a victory for the right in these elections. Observe: in the regional elections, the right, which could only advance after October 2009, lost 563,000 votes, 256,000 of them in Attica! Proclaiming that it wanted to win between 6 and 8 of the 13 regions, it obtained only five and, if it won Piraeus, it was more due to the internal crisis in PASOK than its own dynamic. It can only be welcomed: it is obviously paying for its share of responsibility in the crisis, and its demagoguery against the memorandum fooled nobody, since at the same time it supports the austerity measures. The crisis of the right is certainly a durable one and its luck is that in this period, the LAOS grouping, whose profile is equivalent to that of the Front National in France, is one of the biggest supporters of PASOK’s policies. This positioning of LAOS has two consequences: an electoral weakening, where it ran, as in Attica where, with 6.57%, it lost 1% and 53,500 votes, but also the freeing up of space for openly fascist currents.
One notes then a very important fact: for the first time since the beginning of the 1980s, the bipartisanship which infected Greek political life has been dramatically weakened. The results of the elections, as well as discussions in workplaces, prove that a deep political crisis has opened, not witnessed since the junta of the colonels in the years 1967-74. It has become clear that a positive outcome to this situation depends exclusively on the responses and credibility offered by the radical anti-capitalist left. And on this terrain, things may begin to evolve.
The KKE was presented as the main winner of these elections and this is largely correct. It must be said that it began its campaign a long time ago since it is in fact almost permanent. Indeed, the KKE favours mobilisations as the sole solution, not hesitating to accuse workers who do not vote for it of bolstering the "plutocracy”. In this systematic electoral campaign, it utilises a discourse which is in part anti-capitalist. But in part only, since arguments about “real”" patriotism have lately been employed, and the party continues to sow division, refusing any unity of action of workers: for it, the sole unitary framework is its PAME current, framed by itself, and on the “political scene”, the KKE presents itself as alone against everyone, it being understood that the radical left defends according to this party the capitalist system!
Nevertheless, once again its campaign found an echo and the KKE was able to attract young people. Its score in the regional elections was approximately 580,000 votes, or almost 11%, with a gain of 62,600 votes and 3.5% on 2009. Yet this increase should be put into perspective. First because it was not in the most industrialised regions that the KKE advanced most: the southern Aegean Islands (+ 6,000), central Greece (+ 12,000). It even lost votes in the north Aegean (-500) and above all, its progress in Attica was very modest: certainly, it scored 14.4% but it only won 6,000 extra votes, which is very little given PASOK’s losses and the gains made in the same area by Antarsya, namely + 23,000 votes. Similarly, the KKE won only a single municipality, the popular suburb of Petroupolis. Even though it is by far the main force to the left of PASOK, we must be aware of these weaknesses, which once the official period of satisfaction is over, may facilitate internal questioning, until now fairly discreet.
One of the most urgent balance sheets to be drawn is that of Syriza: this radical reformist coalition has for several months experienced existential problems, quite simply of political identity, which hark back to the confusion related to its formation. Bringing together revolutionary or radical groups around Synaspismos, without these groups having had any common project of developing an anti-capitalist wing, Syriza has been buffeted over three years by the rhythm of the polls and actual results, which hardly exceeded those of Synaspismos alone, if we put aside the good result of Alexis Tsipras in the Athens mayoral elections four years ago (more than 10%). In recent months Syriza has divided into at least three currents: the first is that of the “renovators” of Synaspismos, who eventually left the latter and Syriza also in spring to form Dimokratiki Aristera (Democratic Left). Their electoral baptism of fire electoral was satisfactory to them: presenting alliances of variable geometry (with the Greens, with Syriza, with PASOK and so on), they got quite a number of elected representatives and their regional candidate in Attica, Grigorios Psarianos, a former MP for Syriza, won 52,500 votes, or. 3.8%. This also raises their political profile as a party of elected representatives with a discourse oscillating between radicalism and the flattest reformism.
The core of Syriza, around Synaspismos, got nearly 240,000 votes (4.5%), as against 315,000 and 4.6% in October 2009. If the decline in percentage is not huge, it is more so in votes, and even if the leadership of Synaspismos expressed satisfaction at this score, it is clear that not to advance in such a context is a setback. Moreover, before the vote two Syriza MPs and the representatives of a few currents (Kokkino, AKOA, Xekinima and so on) in the secretariat highlighted in an appeal the deep crisis of the coalition, undermined by conflicts between different projects but also by centralism and bureaucracy, and affirmed its failure to promote that which had justified its creation, namely left unity and common action of the broad forces of the radical left. Their conclusion is that after the elections, Syriza can no longer continue under the same conditions. During this time, the leadership around Alexis Tsipras imposed for the municipal elections the line of turning towards PASOK cadres in disagreement with the Papandreou line, and thus in Attica the Syriza leadership hoped that the head of the regional list would record a two digit score, attracting disappointed PASOK voters: the result was a total of 89,000 votes, representing 6.2%, down by 42,000 votes from 2009. This suggests that the youth who had voted for Syriza did not identify with such combinations, while the disappointed PASOK voters did not find it credible either.
A word on the third current in Syriza, grouped around a list represented in Attica by the former leader of Synaspismos, Alekos Alavanos. Alavanos, very much on the right when he was an MEP, now uses a very leftist language, as seen in his central leaflet for the campaign whose conclusion is: “To combat youth unemployment, we are ready to go to jail.” Alavanos’s list, in which he had high hopes, ultimately obtained 30,000 votes, 2.2% and a single elected representative. But the most serious aspect in this case is that the disagreements between the former and current leaderships of Synaspismos will tear apart the radical and revolutionary groups which are members of Syriza, with all the resentments that might leave. This relates to the absence of a joint project for these groups at the launch of Syriza.
This is the good news of the elections, although modest in terms of numbers, but for many observers a new element: clearly anti-capitalist lists supported by the coalition ANTARSYA (Cooperation of the anti-capitalist left for the overthrow of the system), present in 11 of the 13 regions, scored about 2% and had seven representatives elected. Its percentages varied from 1.5% to 2.6%, much better than the usual very low vote for the Greek revolutionary left! The vote increases were spectacular and was the vote that increased the most: if the KKE got 62,500 more votes, ANTARSYA got nearly 71,000 more, reaching a total of nearly 95,500 in 11 regions. In Attica, it got 31,500 votes and elected Angelos Hagios, also leader of the NAR. And ANTARSYA supported several lists in the municipal elections, as in Athens where it got 5,500 votes (2.9%) and one elected representative, Petros Konstantinou, leader of the SEK. In various suburbs, lists supported by ANTARSYA and sometimes other forces got good scores: in Piraeus, 2%, 3% and one representative elected in Peristeri, the largest of the suburbs and a working-class neighbourhood, 2.8% and one representative elected in Petroupoli, 6.5% and one representative elected in Nea Smyrni, 5% and one representative elected in Zografou, 6.3% and one representative elected in Ymittou, 10.7% and two representatives elected in Halandri, 13.8% and two representatives elected in Vrilissia. And other good scores outside Attica in Iannina with 4.1% and one representative elected or Pyrgos with 4% and one representative elected.
This significant breakthrough has at least two explanations. The first is the dynamism of the ANTARSYA grouping in which the two strongest Greek revolutionary left organizations, the NAR and SEK are involved, as well as different groups such as OKDE-SPARTAKOS, the Greek section of the Fourth International, and individual members. We saw it throughout the mobilizations of spring, when ANTARSYA helped structure rank and file unions against the line of the GSEE confederation leadership. Big contingents on demonstrations, and an activist profile helped affirm ANTARSYA’s place, with its posters and slogans present in many regions. The second reason is a vote of radicalization in favour of the only list clearly stating the need for an anti-capitalist alternative to defeat the PASOK and troika policies. In the massive vote to the left of PASOK, the vote for ANTARSYA is a bearer of hope also because sectarianism has broken down: given that outside of SYRIZA and ANTARSYA, other far-left groups called for abstention, it is clear that the Antarsya lists benefited both from the votes of voters rejecting the evolution of Syriza and those young people closer to radical proposals.
The stakes emerging from this new situation are clear: ANTARSYA is now invested with new responsibilities, huge in relation to the urgency of the situation, but also if we take into account its small size and the fact that its process of constitution, work and co-operative debates remain recent. It is first and foremost about helping, despite the obstacles, the construction of a unitary and massive response to the policies of the bourgeoisie, making all the necessary proposals along the lines of a break with capitalism. Rejecting the payment of the debt, a ban on layoffs, defence and improvement of public services, these are some urgent axes, which involve extending cooperation well beyond ANTARSYA!
But another sector is of greatest urgency: on the basis of the achievements of the anti-racist battles, to organize the broadest unitary mobilization against racism and fascism, without delay. In Athens, a neo-Nazi group, Chrysi Avgi (Golden Dawn) has for month organized violent campaigns against immigrants in some districts and at the municipal elections they got 10,000 votes (5.3%) with one representative elected. If electorally they have had no other successes, these practitioners of the fascist salute, enjoying a disturbing indulgence from the police, are attempting to implement their racist practices in several areas, and only an anti-racist mass mobilization can neutralise them.
Two indices of the possibilities of rapid development since the second round of the elections – the meeting hastily organised by Antarsya on November 16 with more than 1,000 highly motivated participants, and the next day, the commemoration of the massacre of students at the Athens Polytechnic by the military junta in 1973 – a 50,000 strong demonstration, with a lot of youth, and several tens of thousands in Thessalonika. Reviving the hope of being able to win by actually constructing together against the policies of poverty as the only way forward, that is the crucial issue for the weeks and months to come.
.Tassos Anastassiadis is a member of the leadership of OKDE-Spartakos, Greek section of the Fourth International, which is part of the coalition of the anti-capitalist Left, Antarsya.
Andreas Sartzekis is a member of the leadership of OKDE-Spartakos, Greek section of the Fourth International, which is part of the coalition of the anti-capitalist Left, Antarsya.
This note critiquing the judgement that setences Binayak Sen for life has been written by ILINIA SEN, SUDHA BHARADWAJ and KAVITA SRIVASTAVA
As you are aware the Second Additional District and Sessions Judge of Raipur Sh. B. P. Verma convicted Binayak Sen, Pijush Guha and Narayan Sanyal for rigorous life imprisonment on the 24 December, 2010. A ninety two page judgement was delivered by Judge BP Verma on the 24 December, 2010. What follows is a quick analysis of the facts of the case and the judgement that has finally been delivered.
Important Dates of the case
The FIR was lodged on the 6th of May, 2007, when Pijush Guha’s arrest was shown. Dr. Sen was arrested on the 14th May, 2007 from Bilaspur and Narayan Sanyal was only made an accused in July 2007, who was already an under trial detained in the Bilaspur Jail in another case. The Charge sheet was filed in August, 2007. The charges were framed on 27th December, 2007 and subsequently the trial began. The trial lasted for two years where 97prosecution witnesses and 12 defence witnesses deposed. Many of the prosecution witnesses were policemen. Three judges presided over the two year trial. They were Judge Saluja, Judge Ganpat Rao and finally Judge B P Verma (a judge awaiting confirmation in the lower judiciary). The judgement would have taken longer had it not been for the Supreme Court, which on a bail application filed by Pijush Guha ordered in October, 2010 that the trial be completed in three months.
The Analysis of the Judgement
The Second Additional Sessions Judge, Raipur B.P. Verma has sentenced human rights defender Dr. Binayak Sen, Kolkata businessman Pijush Guha and Maoist ideologue Narayan Sanyal for rigorous life imprisonment and shorter prison terms, to run concurrently under Sections 124A read with Section 120B of the Indian Penal Code, Sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 (Chhattisgarh Special Public Safety Act) and Section 39(2) of the Unlawful Activities Prevention Act, 1967. Narayan Sanyal has been additionally sentenced under Section 20 of the UAPA Act, 1967. Briefly put Section 124A read with Section 120B of IPC pertains to sedition and conspiracy for sedition; CSPSA, 2005 makes culpable membership of, association with, and furthering the interests, financially or otherwise, of organizations notified and banned under the Act as unlawful. UAPA, 1967 seeks to penalize membership of a terrorist gang or association, holding proceeds of terrorism, or support given to a terrorist organization.
To hold the three accused guilty under the above mentioned laws, the judgment had to establish beyond reasonable doubt that the accused were either directly indulging in seditious activities as individuals or as members of an organization, or conspiring to abet and further seditious activities of individuals or organization. Also, the judgment was to establish beyond reasonable doubt that the accused were either members of organizations notified as unlawful under CSPSA or/ and UAPA, or conspiring to abet and further the activities of such unlawful organizations. Judge Verma’s verdict weaves a flawed legal narrative trying to establish the aforementioned links.
Judge Verma’s narrative hinges on the following points:
1. Testimony of the so called Landlord of Narayan Sanyal
Deepak Choubey’ in his testimony stated that he accepted Narayan Sanyal as a tenant in his house on the recommendation of Binayak Sen some time before Sanyal’s arrest.
The Judge has ignored the fact that Deepak Choubey did not own the house but acted on behalf of his brother in law. More crucially, the Judge set aside Sen’s objection that Choubey’s assertion came in response to a leading question by the Public Prosecutor. Judge Verma’s verdict makes no reference to Sen’s objections against this witness going beyond his statement under Section 161 of the Cr.P.C., and the fact that the witness admitted in cross examination that an earlier statement recorded by the police at the time when allegedly a Maoist leader was arrested from his house was not brought on record. This casts doubt as to the veracity of the statement made subsequently since the same could be manipulated so as to suit the Prosecution story. Judge Verma rejected Sen’s contention that Choubey’s statement was made under duress because the police threatened to implicate him in context of the said arrest. It also does not take into account the contradiction with the police’s own version that Narayan Sanyal was arrested from Bhadrachalam in Andhra Pradesh to which effect police officers of Andhra Pradesh have testified.
2. Binayak Sen’s thirty three meetings in eighteen months with jailed Narayan Sanyal.
The judge without giving any reason has ignored Sen’s contention that he was merely performing his duty as a human rights activist and a physician in addressing the legal and health issues of an ailing undertrial prisoner on the request of the undertrial’s family. The Judge has not considered the documents exhibited by the defence showing that Sen had permission from the Senior Superintendent of Police for his jail visits. Instead, Judge Verma’s verdict makes a convoluted argument by holding that Sanyal’s sister-in-law’s (Bula Sanyal’s) phone calls to Binayak Sen in this regard proved a conspiratorial relationship between him and Narayan Sanyal, whereas Bula Sanyal is a housewife absolutely unconnected with any kind of Maoist/ unlawful activity. Since the prosecution failed to produce even a single jail official or any other eye witness testifying to any letter or message, oral or written, being passed by Narayan Sanyal to Binayak Sen in their jail meetings, the verdict makes much fuss about certain entries in jail registers referring to Sen being Sanyal’s relative, ignoring the defence contention that these entries were filled in by the jail officials, and not by either the visited or visitor, as apparent from the face of the record. On the contrary, all the applications Binayak Sen submitted to the jail officials, requesting a meeting with Sanyal, were written on the letterhead of his organization – PUCL (a Civil Liberties and Democratic Rights organization founded by leading Sarvodaya leader Jayprakash Narayan). These visits were duly permitted by the jail officials and transpired in their full view and hearing.
3. Binayak Sen’s relationship with the CPI (Maoists)
3.1 That Binayak Sen had a close relationship with CPI (Maoist) is sought to be established by the unsubstantiated testimonies of police officials claiming that Sen and his wife Ilina Sen had assisted alleged hard core Maoists Shankar Singh and Amita Srivastava. Sen has not disputed that Shankar was employed by Rupantar – an NGO founded by his wife Ilina. Nor has he disputed that he and Ilina knew Amita Srivastava whom the latter, on the recommendation of a friend, had helped find a job in a school. But the Judge has just accepted the police’s word, without any other testimony or material evidence whatsoever that Shankar and Amita were Maoists.
3.2 Judge Verma has also wrongly concluded, on the basis of hearsay by the police, that one Malati employed by Rupantar was the same person as Shantipriya, also using the alias Malati, a Maoist leader’s wife convicted for 10 years in a case tried in another court in Raipur. The judge has not even mentioned or verified the defence evidence put on record that the Malati employed by Rupantar was actually Malati Jadhav, whose address was provided by defence witness Prahlad Sahu.
3.3. Judge Verma’s narrative seems to have a particular fondness for police hearsay as he has blindly accepted, without any corroboration by another witness or any material evidence, wild allegations made by police officials Vijay Thakur and Sher Singh Bande, officer in charge of Konta and Chhuria police stations respectively that Binayak Sen, his wife Ilina Sen and other PUCL members and human rights activists attended the meetings of Maoists in their respective areas. These officials have gone well beyond their Section 161 statements introducing documents not earlier annexed with the charge sheet, and all defence objections in this regard were overruled by the Judge.
3.4 But a certain planted letter, exhibit A-37, takes the cake in Judge Verma’s narrative. This unsigned letter, supposedly written by the Central Committee of CPI (Maoist) to Binayak Sen, was claimed by the police to have been seized from Sen’s house when the police ran a search there. But this letter finds no mention in the seizure list, neither has it been signed by Sen nor the investigating officers nor the search witnesses as per proper procedural requirement. The said letter was also not part of the copy of the charge sheet received by Sen in the court. But the Judge has completely overlooked this obvious planting of evidence, accepting the ridiculous explanation provided by investigating officers BS Jagrit and BBS Rajput that the Article A-37 probably stuck to another article (chipak gaya tha) and hence could not get signed by either Sen or the investigating officer or search witnesses. It is no surprise that the judge has also ignored the very valid testimonies of defence witnesses Amit Bannerji and Mahesh Mahobe in this context.
3.5 The verdict lets the cat of its ideological bias out of the bag , however, when it accepts above the Supreme Court’s wise judicial pronouncements which were brought on record in the case by Sen, the testimony of a mere district collector KR Pisda in charge of Dantewada district that Salwa Judum was a peaceful and spontaneous protest movement of the tribals against the atrocities committed by the Maoists, and not a brutal and armed vigilante operation sponsored by the state. Later in his judgment Judge Verma insinuates that Binayak Sen’s principled opposition as a human rights defender to such a non-legal, repressive, brutal vigilante operation indulging in mayhem and violence put him in the Maoist camp against whom the Salwa Judum was targeted.
Not taking into cognizance the evidence provided by the Defence
The statement made by Binayak Sen, the evidence that he brought on record as to his work as a human rights activist, and the newspaper reports which were exhibited by the defence carrying statements of the then DGP Police threatening to take human rights activists to task, which reveal prima facie malice and motive have not been taken into consideration by the Judge, who appears to have considered and relied only upon that interpretation of the evidence that supported the prosecution case without a reasoned consideration of the lacunae and contradictions therein, the objections of the defence and the evidence adduced by Sen, or even the well settled legal principles on which the defence rested its arguments.
Using the legal provision of sedition as a political instrument
While weaving a narrative of sedition against Binayak Sen and other accused in the case, the Sessions court verdict violates a well laid judicial principle of the Supreme Court in matters of sedition. InKedarnath Singh Vs State of Bihar the Supreme Court has held that the provision of sedition in the Indian Penal Code must be interpreted in a manner consistent with the fundamental freedom of speech and expression guaranteed by the Indian Constitution. In this regard the Supreme Court held that the offence of sedition, which is defined as spreading disaffection against the state, should be considered as having been committed only if the said disaffection is a direct incitement to violence or will lead to serious public disorder. No speech or deed milder than this should be considered seditious. The Sessions court verdict in the case against Binayak Sen and others fails to establish that the words or deeds of the accused were a direct incitement to violence or would lead to serious public disorder. This would be the case even if it was established beyond doubt that Binayak Sen had passed on Narayan Sanyal’s letters to Pijush Guha, or Pijush Guha was likely to pass on these letters to other members of the CPI (Maoist), or that Narayan Sanyal was a politburo member of the CPI (Maoist).