The Trial of Binayak Sen
By Jyoti Punwani
27 December, 2010
Economic & Political Weekly,December 25, 2010 vol xlv no 52
[This article was written before the judgment of the sessions court, Raipur.]
Human rights activist Binayak Sen spent two years in jail before being granted bail. Charged with sedition, waging war against the Indian state, as well as being a Maoist supporter, both under normal laws and under the Chhattisgarh Special Public Security Act and the Unlawful Activities Act, the evidence has been full of discrepancies and contradictions on material points. The trial has just concluded at the sessions court in Raipur.
The trial of one of the most celebrated political prisoners in recent times has just ended. Going through the trial proceedings makes one laugh at the kind of evidence the Chhattisgarh police have managed to gather against Binayak Sen; but the human rights activist spent two years in jail on the basis of this evidence, charged with sedition, waging war against the State, as well as being a Maoist supporter, both under normal laws and under the Chhattisgarh Special Public Security Act (CSPSA) and the Unlawful Activities (Prevention) Act (UAPA). The international clamour for his release, with Nobel Laureates joining in, had no effect on either our highly educated prime minister or the person who appointed him, the supposedly liberal Congress Party president who surrounds herself with some of the country’s leading intellectuals. Even the Supreme Court rejected his bail application the first time, with no reasons being given. Binayak Sen made news when he was in jail, but soon after he was released on bail by the Supreme Court (again, no reasons given) he faded away from media focus. But his trial continued. Had it been reported regularly, the country would have known the nature of the evidence against him, and also about the ordinary men and women who stood up in court and insisted the police version was wrong. The complete blackout of the trial throws light on the functioning of the Chhattisgarh media, which had gone to town when Sen was arrested, proclaiming in banner headlines his guilt by calling him a Naxali daakiya (Naxalite postman).
There is one more aspect of this episode that needs to be highlighted: Sen’s co-accused, the alleged “hardcore Naxalite” Narayan Sanyal, and businessman Piyush Guha, were denied bail and remained in custody all this time. The evidence against them did not inspire confidence either.
What were the specific charges against Sen? All three accused in the case faced the same charges: that of having conspired at any of six different places (sic) to wage war against the state, and of being members of or contributed funds to or assisted the work of an illegal organisation.
Evidence?
What was the evidence to support these charges? The prosecution alleged that Sen had passed on letters from Narayan Sanyal, whom he used to meet in Raipur Central Jail, to Piyush Guha, to be sent “out”. These letters were allegedly found on Guha when he was arrested. However, jailor after jailor testified that there was no way Sanyal could have handed over anything to Sen in jail because Sanyal’s visitors were not only searched before and after meeting him, but all Sanyal’s meetings with visitors were held under strict supervision. Not only could the jailors see Sen and Sanyal during the meeting, they could also hear their conversation, which they testified, centred on the 74-year-old Sanyal’s health, his case, and his family. When asked if they had been pulled up for carelessness in monitoring Sanyal, the jail staff said no. Two jailors were declared hostile by the prosecution.
The prosecution could not prove that Sen ever met Guha. The hotel owner and manager, in whose hotels the police alleged the two would meet, told the court that they had never seen Sen or anyone come to meet Guha. The prosecution declared them hostile. Thus the triangle sought to be established by the prosecution– of Sen as the link between Sanyal and Guha – could not be established.
It could be argued that witnesses normally turn hostile in cases against Naxalites, being too scared of the latter to depose against them. However, in Chhattisgarh’s cities, there is little evidence of Naxalite terror. On the contrary, be it Raipur or Dantewada, this state has seen members of the ruling Bharatiya Janata Party and the opposition Congress gang up to boot out anyone suspected of being a Naxalite sympathiser, even Gandhians and scientists. The police have of course taken the lead in targeting those they label “Naxalite sympathisers”. They did not allow academics Nandini Sundar and Ujjwal Singh to meet people in Dantewada last December, nor did they let an all-women’s team reach Dantewada to join Gandhian Himanshu Kumar’s peace march around the same time. If any terror exists in Chhattisgarh’s cities, it is the terror of the police. Hence the ordinary men and women who disproved the police story against Sen in court – two hoteliers and one school principal – were unlikely to have been acting under fear of the Naxalites. And what of the jailors? What motivated them to deny the police version?
Fabricated Evidence?
The prosecution had one more weapon against Sen, a “proof” that needed no eyewitnesses to validate it: a letter dated 1 December 2005, ostensibly written by Naxalites thanking him for his services in Chhattisgarh and hoping for similar services in Orissa. This unsigned letter, in the form of a computer printout, made a sudden appearance when a prosecution witness was deposing, a man who claimed to have been called by the police to witness their search of Sen’s house. Unlike the other documents seized from the house, this letter had neither Sen’s signature nor that of the investigating officer, B B Rajpoot, who was part of the police search party, on it. It had instead only the signatures of the two witnesses the police claim were present during the search. It is neither mentioned in the list of documents seized from Sen’s house (seizure memo) nor in the final report presented with the challan; nor in the list given to the court’s maalkhana where all seized material is stored. “I have no knowledge who found it or from where’’, the town inspector, B S Jagrit told the court, maintaining however, that it was found in Sen’s house. Both he and the investigation officer had the same explanation as to why it had neither Rajpoot’s nor Sen’s signature:
“Either we forgot, or this paper got overlooked because it was stuck to some other document seized during the search”. But how come the witnesses signed it?
To prevent planting of evidence, all the material seized from an accused’s house is supposed to be sealed in the presence of witnesses before being taken away. The prosecution claimed this was done. The defence alleged it was not. And to substantiate its allegation, Sen’s lawyer Surendra Singh asked for permission to play the video recording of the entire seizure, shot by a professional videographer hired by Sen’s wife Ilina, with the permission of the court. Summoned by Sen as a defence witness, the videographer told the court that he had seen the police take away the seized material in an open bag. However, the judge B P Verma refused to allow the video to be screened at that stage, even after the special public prosecutor (SPP) challenged the authenticity of the CD.
However, that same afternoon, the same judge allowed the SPP to play a CD which, claimed the prosecution, showed Sen talking to Naxalites in the jungle. In the witness box at that time was another defence witness, documentary maker Ajay T G, who had shot this particular video. Like the videographer, Ajay too maintained that he needed to see the CD before he could identify it. The judge allowed it to be played, but refused to see it himself. However, the CD could not be played and hence remained unidentified.
Ajay T G told the court that he had filmed Sen and advocate Holaram Prajapati talking to adivasis during a 2004 People’s Union for Civil Liberties (PUCL) investigation into the killing of three adivasis in a village adjoining the forest. This set of CDs made by Ajay was seized from Sen’s house. Sen’s alleged Naxalite links were sought to be established through other material seized from his house – especially his computer, wherein names of various persons were found, whom the police said were Naxalites. The computer had details of payments made to those working for Rupantar, the non-governmental organisation set up by Binayak Sen and his wife Ilina that works on issues of health and biodiversity.
In his testimony, inspector Jagrit described Rupantar as a Naxalite organisation run by the Sens, which did “urban networking” for the Naxalites. The Malti and Vijay mentioned in the computer, said Jagrit, were the same “Malti” and “Vijay” known to the police as Naxalites. An entry “Vijay-non AA budget” was interpreted by Jagrit as being “codewords used by Naxalites’’. The defence explained Malti Jadhav and Vijay had worked for Rupantar, and that “non AA budget” meant “non-Action Aid budget”. Incidentally, as pointed out by the defence, Rupantar continues to get funds from both the central and the state governments!
Then there is the case of Amita Srivastav, declared to be an absconding Naxalite by the police. A woman by the same name was recommended by Ilina Sen to a local school which employed her. However, when shown a photograph said to be of the absconding Amita, the school principal said she was not the person employed by her. The principal was declared hostile. Hum PUCL Ko Dekh LengeThe prosecution made a big deal about Sen’s visits to Sanyal in jail. But in cross-examination by Sen’s counsel, Mahindra Dubey, the jailors admitted that all applications to meet Sanyal were made by Sen as a PUCL office-bearer, on the PUCL letterhead, and that these meetings were allowed only after the local police had cleared them. Sanyal was not the only prisoner in whom Sen seems to have had an inordinate interest. A prisoner from Balaghat jail wrote directly to Sen for help; Sen gave the letter to the local press. The eveninger Chhattisgarh published it prominently.
When a prisoner from Bilaspur Central Jail sent an appeal to the Supreme Court, the jail authorities sent a copy to Sen as PUCL general secretary. This was a month before his arrest. PUCL, of which Sen is now currently national vice-president, and state president, has played no small part in the proceedings. I O Rajpoot stated in court that PUCL worked for the Naxalites. Sen was arrested in May 2007. As far back as January 2006, then Chhattisgarh Director General of Police O P Rathore had declared to the press: Hum PUCL ko dekh lenge (we will take care of PUCL). That was a month after the Chhattisgarh PUCL, under its general secretary Binayak Sen, had investigated the brutal displacement of adivasis under Salwa Judum, the state-backed vigilante movement that has drawn the Supreme Court’s disapproval.
On 2 December 2005, PUCL released its preliminary report of a joint fact-finding done in Dantewada, with other human rights groups. It was an indictment of the Chhattisgarh administration’s role in setting up and running Salwa Judum camps, and the havoc this had wrought on the lives of the adivasis there. All through 2006, PUCL statements against Salwa Judum and against the newly-enacted CSPSA were published in the local press.
More than one policeman testified that PUCL members Sen, his wife Ilina and then general secretary Rajendra Sail, participated in meetings with Naxalites in Chhattisgarh’s jungles. Under cross-examination, they admitted this was just hearsay. One policeman said that local villagers had told him this, but he had not recorded their statements because it would have been dangerous for them!
Discrepancies and Contradictions
What is surprising is that in a case that attracted international attention and a trial at which foreign observers were present (when Sen was in jail), the police performed as sloppily as they do in any routine case. The evidence was full of discrepancies and contradictions on material points, be it the letters alleged to have been found on Piyush Guha’s person (no mention of them have been made in the arrest panchnama), or the time and place of his arrest (the affidavit filed in reply to his bail application in the Supreme Court, mentioned it as Mahindra Hotel, the charge sheet in the case mentioned it as the busy station road in Raipur), the arrest of Narayan Sanyal (two policemen testified he had been arrested in Bhadrachalam, but a prosecution witness told the court he had been arrested from his house, only to admit in cross-examination that this was hearsay), or the SPP’s description of the Indian Social Institute as Pakistan’s ISI. Bill books and registers were seized from the two hotels in which Guha was said to have stayed, and remained in the possession of the police since. Yet, in one of the registers, an entry was made on a date after it was seized from the hotel. The CD in which Sen is supposed to be talking to Naxalites should have been a crucial piece of evidence for the prosecution. Yet, I O Rajpoot admitted that he had neither investigated who made the CD, nor did he know which village it featured.
Take the articles seized from Sen’s house. Those in the possession of the prosecution, produced in court, had the signatures of Sen, inspector Rajpoot, and two police witnesses. Xerox copies of these documents were sent to Sen – but, they did not have the signatures of the two witnesses. What does this imply? What is interesting also is the way policemen deposed about Naxalites – giving long accounts of their violent acts and the terror they create, their lack of belief in any law and their desire to overthrow the state at the point of a gun. Under cross-examination, these policemen admitted they had neither read Naxalite literature, nor interacted with any of them. What could be the reason for such indifference?
Did the police feel the accused would not be able to get good lawyers? Or, that since the trial would not attract media attention, these discrepancies would never come to light outside the court? Like everywhere else, in Chhattisgarh too, the police seem to have been pretty confident that the press would not stray from the briefings given to it.
What is frightening is that on such flimsy evidence, the accused were deprived of their liberty for three years (Sen for two years). Said Sen’s advocate Mahendra Dubey, who cross-examined most of the witnesses: “With the most important prosecution evidence having been demolished, what’s left? Just a list of supposedly incriminating documents seized from his house? Going by that, all scholars would go to jail.’’ Advocate Surendra Singh, Sen’s senior counsel, who concluded the defence arguments, saw this case as “an attempt to stifle any form of dissent’’.
That attempt seems to have succeeded; few fact-finding teams have been allowed to enter Dantewada in the last year, especially after Operation Green Hunt was launched. Even established political parties such as the Communist Party of India (CPI) are being targeted. Their leading activists are being arrested on false charges; when they organise protest rallies the adivasis going to these rallies are beaten, as happened in November. More such conduct will leave the field open to the police and the Maoists.
But hope exists. Lawyers such as Sudha Bharadwaj continue fighting at the local level, and at the Supreme Court, Nandini Sundar and ex-CPI MLA Manish Kunjam have not given up. The very fact that Binayak Sen, Narayan Sanyal and Piyush Guha could get lawyers who demolished the prosecution’s version, in the capital of a state where human rights is a dirty word, is proof that the State has not made cowards of all of us.
Jyoti Punwani ([email protected]) is a Mumbai-based freelance journalist and human rights activist.
