Radical Socialist
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).
December 9 statement by La Via Campesina: We call on humanity to act immediately to rebuild the life of all of nature, applying the concept of “life in balance.”
Members of La Vía Campesina from more than thirty countries from all over the world united our thousands of struggles in Cancun to demand environmental and social justice, and respect for Mother Earth at the UN Conference on Climate Change (COP 16). We joined together to denounce the attempts of governments, mainly from the North, to commercialize the essential elements of life in benefit of transnational corporations and to publicize the thousands of grassroots solutions to cool the planet and stop the environmental devastation that seriously threatens humanity today.
Working mostly out of our base at the Alternative Global Forum for Life, Environmental and Social Justice, we held workshops, assemblies, and meetings with allies. On December 7 we staged a global action that we called “Thousands of Cancuns”. The events this day had an impact across the planet and even into the halls of the Moon Palace where delegates to the COP 16 meet. Actions included a march of thousands of members of La Via Campesina accompanied by indigenous Mayans from the Mexican peninsula of Yucatan and our allies from national and international organizations.
Mobilization to Cancun began November 28 with three caravans that left from San Luis Potosi, Guadalajara and Acapulco and traveled through places that exemplify environmental destruction, as well as local resistance of affected communities. The organization of the caravans was carried out along with the National Assembly of Environmentally Affected Peoples, the Movement for National Liberation, the Mexican Electricians Union (SME) and the hundreds of villages and people who opened their doors with generosity and solidarity. On November 30 the caravans arrived in Mexico City, where we held an International Forum and march accompanied by thousands of people and hundreds of organizations that also struggle for environmental and social justice.
On our journey to Cancun, other caravans—one from Chiapas, one from Oaxaca and one from Guatemala—joined us after many hours of traveling. We met up in Merida to hold a ceremony at Chichen Itza and finally arrived in Cancun on December 3 to set up our camp for Life and Environmental and Social Justice. The next day, Dec. 4, we inaugurated our Forum and began activities in Cancun.
Why did we go to Cancun?
Current models of consumption, production and trade have caused massive environmental destruction. Indigenous peoples and peasant farmers, men and women, are the main victims. So our mobilization to Cancun, and in Cancun, sought to tell the world that we need a change in economic and development paradigms.
We must go beyond the anthropocentric model. We must rebuild the cosmovision of our peoples, based on a holistic view of the relationship between the cosmos, Mother Earth, the air, the water and all living beings. Human beings do not own nature, but rather form part of all that lives.
Given the urgency to reconceive the system, the climate and the earth, we denounce:
We do not agree with the simple idea of “mitigating” or “adapting” to climate change. We need social, ecological and climate justice, so we demand:
La Vía Campesina, as an organization that represents millions and millions of small farmer families in the world, is concerned about the need to recover climatic equilibrium. Therefore we call for:
Today, right now, we call on humanity to act immediately to rebuild the life of all of nature, applying the concept of “life in balance.”
This is why, from the four corners of the planet, we stand up to say:
No more harm to our Mother Earth! No more destruction of the planet! No more evictions from our territories! No more murder of the sons and daughters of the Mother Earth! No more criminalization of our struggles!
No to the Copenhagen agreement. Yes to the principles of Cochabamba.
¡REDD NO! ¡Cochabamba SI!
The earth is not for sale, it must be recovered and defended!
GLOBALIZE THE STRUGGLE, GLOBALIZE HOPE
CALL FOR ACTION on CBI COVER-UP!!!
Let us Protest against CBI cover up report on Shopian Rape and Murder case
DEMAND JUSTICE FOR NEELOFAR AND ASIYA!!!
A Public Event in New Delhi on 13th December, 2010 at 4pm in front of CBI Office
Come and participate with one white bed sheet with the words ‘TO THE CBI - FOR YOUR NEXT COVER-UP!!!’ written in huge letters across it with the name of the organisation/individual below.
Dear friends,
Even as the Kashmir valley has been in turmoil, yet again, with excesses by the armed forces, cases of rape and killings remain unresolved especially when involving the police, para military or military.
Shopian Double Death Case: Asiya Jaan and her sister-in-law Neelofar Jaan left home in the evening of 29th May, 2009 BUT did not return. Their bodies were recovered from the banks of Rambiara Nullah on the morning of 30th of May 2009 in the same spot that a search party including the local police had searched- a very well-lit area- till the early hours of 30th May.
The police was very much on the scene but did little to collect evidence; for five days no case was registered. The first post-mortem report (District Hospital, Shopian) and the second-post-mortem report (by a medical team from Pulwama district and analysed at the Forensic Sciences Laboratory, Srinagar) stated rape and murder in its report. Even as Shopian town observed a 45-day long Bandh the people of Kashmir put aside all other political demands to join this agitation and the people of Jammu also lent solidarity. Further investigations began slowly and progressed in fits and starts. The High Court said that the police were either implicated in the crime or were shielding the culprits. On the basis of the inquiries conducted by the (ex-Justice) Muzaffar Jan Inquiry Commission the interim report was of the view that the two women were sexually assaulted and probably murdered to cover up this crime. It also pointed to acts of omission and commission by members of the civil administration, police and doctors in gross mishandling of investigations.
Amidst the failure of the local police and political pronouncements of the Union Home Minister giving a clean chit to the armed forces before the Parliament, it was decided on September 17, 2009, to hand over the case from a Special investigation Team to the CBI. The CBI, however, built an extra-judicial case and used the media extensively to make all earlier investigations in the case seem motivated or incompetent. Some of the news leaks were simply fantastic – like finding an intact hymen in a body buried for four months and so deny rape, like finding diatoms of Rambiara to show that the women drowned when the Nullah is the source of drinking water for the whole town or like accusing the gynaecologist of substituting her own vaginal swab in the place of those taken from the victims.
The CBI concluded that the women died from ‘accidental drowning’! Its report is based upon the autopsy conducted in September, 2009 by forensic experts of AIIMS after exhumation of the buried bodes. The CBI inquiry is mired in the highly uncertain and contested medical claims of the AIIMS team, allegations of intimidation of many of the witnesses and state representatives and destruction of evidence, the dubious role of many government agencies, incompetence and lack of transparency. It filed supplementary charge-sheets against the State prosecutors, doctors, advocates for the complainant, advocates demanding justice and the family members of the women.
The CBI report states that there was no rape, no murder and that the implicated and suspended policemen were innocent. The report does not explain how the bodies of the two women were invisible to the search party the whole night and appeared suddenly at dawn how these young women drowned in a shallow, two-feet deep Nullah where no deaths have taken place or explained eyewitnesses’ accounts that Neelofar’s body was wet only from one side nor how the hymen can be found intact in a body buried for four months. The policemen’s acts of commission and omission - they did not collect any forensic evidence from the site, did not cordon it, did not register the case- have not been punished; the four suspended policemen have been reinstated. The CBI has not made public the findings of the Special Investigation Team. This calls into serious question the credibility of the CBI Report which has simply tried to bury the case and convinced no one.
We have been following up on this case from the very start. A demonstration demanding justice was held in Delhi in mid- June, 2009 followed by a fact-finding in August, 2009. A press conference on the findings was held prior to the submission of CBI’s final report to the Courts in December, 2009. In May, 2010, with no justice in sight, we wrote an open letter to the Chief Justice of India, to the National Commission for Women and to the National Human Rights Commission which was endorsed by many of you.
WE HAVE HAD NO RESPONSE SO FAR. If the country’s leading investigative agency can apparently facilitate a report to suit the political exigencies of the extant governments, whether at State or Union level, rather than conduct a professional and impartial inquiry that serves the purposes of justice, it points to the levels of both injustice and corruption that subverts the due rights guaranteed in the democratic republic of India.
With official channels exhausted we feel that it is time to make the issue public- expose the role of CBI and shame them for this COVER UP. We propose to send them white bed sheets to shame them for their role in this case.
We hope that every one of you, organisation or individual, who feels that the CBI is responsible for perpetrating this injustice, should participate and send us sheets as symbolic gifts to the CBI .
- Send one white bed sheet with the words ‘TO THE CBI - FOR YOUR NEXT COVER-UP!!!’ written in huge letters across it with the name of the organisation/individual below.
WE WILL
- collect all white bed sheets and display your solidarity with Neelofar and Asiya and the countless other rapes and sexual assaults that have taken place in Jammu and Kashmir and which have seen NO JUSTICE.
- display all your white bed sheets at a Public Event in New Delhi on 13th December, 2010 to mark the anniversary of CBI ’s handing over its COVER-UP REPORT.
THE WHITE BED SHEETS WILL THEN BE GIFTED TO CBI ’S HEADQUARTERS IN DELHI , WITH YOUR COMPLIMENTS.
You can also collect signatures on your sheet from public demonstrations in your region/city.
The Fortnight protesting Violence Against Women could be used to collect signatures in large numbers as many of you might be campaigning and observing this fortnight.
Through this action we want the Home Ministry and the CBI to be aware that we continue to DEMAND JUSTICE FOR NEELOFAR AND ASIYA, for all women of Jammu & Kashmir and for all women of India.
Women against Sexual violence and State repression (WSS), Delhi
For any queries, email us at:
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This work by Radical Socialist is licensed under a Creative Commons Attribution-Non-Commercial-No Derivative Works 2.5 India License.
Radical Socialist is an internationalist Marxist organisation based in India.