"How do you fight a rogue state?" asks Ilina, Binayak's wife.
On a visit with her mother to Binayak in jail, Ilina discovered that the Chhattisgarh government has filed an appeal before the High Court at Bilaspur to re-instate the charges of which he was acquitted by the sessions court. Furthermore, they merely gave Binayak a copy of the appeal, and didn't even bother to inform his lawyers.
Clearly, this appeal is designed to hedge against the "risk" that a Supreme Court bench may allow bail to Binayak. So even if Binayak is released on bail, the reversal of his acquittal on the charge of waging war against the state could ensure that he goes right back in as soon as he is released. Today, this has just hit the news media, despite the fact that it was already made public on Twitter a week ago.
Every time you think some new low has been reached in the annals of the Chattisgarh judiciary, they surprise you with yet another legal legerdemain. Amazing, isn't it, that the brains of an entire bureaucratic apparatus are kept pre-occupied with inventing new forms of legal torture...because this is basically what it is. And yet must we keep faith in the Indian judicial system? As much as we must have faith in the compassion and mercy of our torturers. Or have faith that one part of the system still functions with a common sense understanding of justice.
Here's her letter that appeared in The Statesman, Kolkata.
A meeting with Binayak
SIR, ~ I met Binayak this morning, along with my mother. It was great that both the old ladies, my mother-in-law and mother, made the great trek to come this distance and to stand by us in solidarity. Binayak is in good health and reasonable spirits, but there are some developments that I think I should let you know as I rush to catch my train to go back to Wardha.
Following our Special Leave Petition in the Supreme Court, the state of Chhattisgarh has filed a criminal appeal on 28 February in the Chhattisgarh High Court, submitting that the acquittal of Binayak and others under certain sections, in the court of the sessions judge, should be reversed and that these charges should be maintained. This relates to waging war on the State etc. The specific sections are: 121A IPC, 10(A) UAPA.1967, in alternative 10(A)/120B IPC, 21 UAPA 1967, 38(2) UAPA 1967, 20 UAPA 1967.
I came to know about this because a copy has been advanced to Binayak. Obviously we are under obligation to inform them about our legal moves, but the state can get by with giving a copy to a person in prison who has no means of communicating anything to anybody.
How do you fight a rogue state ?
Yours, etc., Ilina Sen, Raipur, 14 March.
As this episode illustrates, this entire case, like so much else in the way we govern ourselves, is beset with the problems of asymmetry of information (the state knows more about you than you yourself - specifically, what your rights and obligations are), lack of information (can the state appeal against an acquittal of charges in a judgment that has otherwise gone in its favour?), and questions about the reliability of information (how can the justice system be trusted when the state can simply cook up evidence against an accused, who can be convicted even when the evidence is shown to be false?)
[Now I can already hear the nationalist jackals on the internet howling: Binayak should have known better than to tangle with the state! Now he must pay for it!
So Binayak was supposed to have been aware that publishing a report critical of the state's policy towards tribals, and exposing the criminality of campaigns like the Salwa Judum, would earn him a life sentence for waging war against the state, even when the judge intially ruled that he was innocent of such a charge. You have to admire the touching faith of these nationalists in the right to free speech that the world's largest democracy enjoys, but also their breathtaking cynicism!]
As Ilina's statement - reproduced entirely below - to the RTI Convention in Shillong makes clear, Binayak's case is a vivid demonstration of the fact that even a Right To Information (RTI) law cannot succeed in shining the light of accountability, responsiveness and transparency on its governance to prevent the state's recourse to criminality in the pursuance of its aims. Who will be held liable for violation of judicial standards, for the waste of state resources and time in erecting a false case, for the suffering imposed on Binayak and his family? Many of these costs are unquantifiable, let alone calculable. But multiply Binayak's case several thousand fold, and you begin to get an idea (but not a measure, except in a metaphoric sense) of the enormity of the lack of reliable information in our benighted country, where thousands of undertrials are kept waiting for justice in our jails, often not knowing what they have been accused of. This must surely be one of the most painful injustices at the heart of our justice system. But what can a RTI law do to prevent such injustice, when so much else in our system allows such systemic criminality to continue?
Ilina Sen’s Statement for RTI Convention Shillong, March 10-12.
As I fight the long and painful legal battle to extricate Binayak from the clutches of the penal administration, I realize that this battle is as much mine as that of any Indian citizen. Today, at many levels and in many fora including this one, the people of India are struggling for the establishment of accountability and transparency in our governance structures as befitting our status as the world’s largest democracy. However, it is a sad reflection on our system that once a false case is registered in the name of security, it is almost impossible to turn the clock back , even if facts stare us in the face that indicate that the case had no basis. To this , if we add dimensions of face saving, prestige, and drubbing the nose into the ground of uncomfortable critics, we have Chhattisgarh and Binayak Sen.
Binayak Sen has been convicted of sedition and of violating sections of the UAPA and the Chhattisgarh Special Public Security Act and sentenced along with two others to rigorous life imprisonment. His jail ticket notes his provisional date of release as 2028, The conviction has followed an unfair prosecution and prejudiced judgment based on confessional statement recorded , according to the judge, during ‘preliminary investigation’ before the first accused in the case was taken into police custody, thereby defeating the provision of inadmissibility of custodial confessions. In the absence of any visible crime, this first arrest and the so called ‘preliminary investigation’ become the ‘incident’ around which the case is woven. The charges framed are equally vague regarding nature , time and place of the ‘crime’. Extensive and expensive police investigations (sadly beyond the orbit of the RTI Act!) into Binayak’s (and mine) homes, places of work and associates failed to provide any evidence other than social service in remote rural areas , and obviously was not brought on record. The case against Binayak hinged upon his 33 meetings with jailed Maoist leader Narayan Sanyal, his supposed couriering of Sanyal’s letters and their passing on to Pijush Guha, through which letters, the death and destruction being carried out by the Maoists was supposedly given effect.
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. Binayak’s own statement to the court gives a perfectly rational explanation for these visits and the way in which his intervention was essential in facilitating the hand surgery of Narayan Sanyal at the Raipur Medical College,, but this was not taken into account.
Binayak is also supposed to have had prior acquaintance with Sanyal and facilitated the hiring of a house by him. This is based on the testimony of a landlord who, while testifying to this fact also alleges that Sanayal was arrested from his house, which is contrary to the facts brought on record during this trial. Sanyal’s arrest was in Andhra Pradseh according to the testimony of the arresting officer, and how a witness who perjures himself in one part of his testimony becomes a reliable witness for the other part, beats imagination.
Hearsay evidence from police officers about Binayak’s presence in naxal meetings , his supposed association with ‘hard core naxals’ who are not even named in any case anywhere in the country , supposed seditious literature pertaining to resistance of US imperialism and atrocities committed during the salwa judum seized from our house during police search, correspondence addressed to the ISI (read Walter Fernandes, Director, Indian Social institute, New Delhi) and the evidence of correspondence with people bearing Muslim names constitutes the rest of the evidence.
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. In Kedarnath 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).
Both the trial court as well as the appellate court (while passing and upholding the maximum sentence for sedition) have gone on record that the situation of violence and uncontrolled Maoist bloodshed calls for non-application of any grounds for leniency in sentence. This is without any clear establishment that Binayak Sen had any involvement in such bloodshed, in fact even the court does not allege this. How criminal justice can be based on the doctrine of lateral responsibility is mind boggling. Clearly the verdict and the sentence are both intended to make an example of a civil society activism, and to send a message to all of us who are asking any kind of questions. The issues in this case thus go beyond the case itself and the fight for justice for Binayak becomes the struggle of all of us for the Rule of Law in our polity.
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