COMMENTARY
The Trial of Binayak Sen
Jyoti Punwani
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.
This article was written before the judgment of
the sessions court, Raipur.
Jyoti Punwani (jyoti.punwani@gmail.com) is a
Mumbai-based freelance journalist and human
rights activist.
Economic & Political Weekly  EPW   december 25, 2010  vol xlv no 52
T
he 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 sup-
porter, 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 Laure-
ates joining in, had no effect on either our
highly educated prime minister or the per-
son who appointed him, the supposedly
liberal Congress Party president who sur-
rounds 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 report-
ed 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 com-
plete 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 con-
spired 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 meet-
ings 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 al-
leged the two would meet, told the court
that they had never seen Sen or anyone
come to meet Guha. The prosecution de-
clared them hostile. Thus the triangle
sought to be established by the prosecu-
tion – 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 aca-
demics Nandini Sundar and Ujjwal Singh to
21
COMMENTARY
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 act-
ing 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 serv-
ices in Orissa. This unsigned letter, in the
form of a computer printout, made a sud-
den appearance when a prosecution wit-
ness 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 pre-
sented with the challan; nor in the list
given to the court’s maalkhana where all
seized material is stored. “I have no know­
ledge 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 signa-
ture: “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
22
substan­tiate its allegation, Sen’s lawyer a­ divasis in a village adjoining the forest.
Surendra Singh asked for permission to play This set of CDs made by Ajay was seized
the video recording of the entire seizure, from Sen’s house.
shot by a professional videographer hired Sen’s alleged Naxalite links were sought
by Sen’s wife Ilina, with the permission of to be established through other material
the court. Summoned by Sen as a defence seized from his house – especially his com-
witness, the videographer told the court puter, wherein names of various persons
that he had seen the police take away the were found, whom the police said were
seized material in an open bag. However, Naxalites. The computer had details of
the judge B P Verma refused to allow the payments made to those working for
video to be screened at that stage, even Rupantar, the non-governmental organi-
after the special public prosecutor (SPP) sation set up by Binayak Sen and his
challenged the authenticity of the CD. wife Ilina that works on issues of health
However, that same afternoon, the and biodiversity.
same judge allowed the SPP to play a CD In his testimony, inspector Jagrit described
which, claimed the prosecution, showed Rupantar as a Naxalite organisation run
Sen talking to Naxalites in the jungle. In by the Sens, which did “urban network-
the witness box at that time was another ing” for the Naxalites. The Malti and Vijay
defence witness, documentary maker Ajay mentioned in the computer, said Jagrit,
T G, who had shot this particular video. were the same “Malti” and “Vijay” known to
Like the videographer, Ajay too main- the police as Naxalites. An entry “Vijay-non
tained that he needed to see the CD before AA budget” was interpreted by Jagrit as
he could identify it. The judge allowed it being “codewords used by Naxalites’’. The
to be played, but refused to see it himself. defence explained Malti Jadhav and Vijay
However, the CD could not be played and had worked for Rupantar, and that “non
hence remained unidentified. AA budget” meant “non-Action Aid budget”.
Ajay T G told the court that he had Incidentally, as pointed out by the defence,
filmed Sen and advocate Holaram Prajap- Rupantar continues to get funds from both
ati talking to adivasis during a 2004 the central and the state governments!
­People’s Union for Civil Liberties (PUCL) Then there is the case of Amita Srivastav,
investigation into the killing of three declared to be an absconding Naxalite by
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december 25, 2010  vol xlv no 52  EPW   Economic & Political Weekly

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 princi-
pal said she was not the person employed
by her. The principal was declared hostile.
Hum PUCL Ko Dekh Lenge
The 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 appli-
cations 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 inordi-
nate 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 prom-
inently. 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 na-
tional vice-president, and state president,
has played no small part in the proceed-
ings. I O Rajpoot stated in court that PUCL
worked for the Naxalites. Sen was arrest-
ed 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.
Economic & Political Weekly  EPW   december 25, 2010  vol xlv no 52
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 per-
formed as sloppily as they do in any rou-
tine case. The evidence was full of dis-
crepancies 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 testi-
fied he had been arrested in Bhadracha-
lam, 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 prose­
cution. 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 docu-
ments were sent to Sen – but, they did not
have the signatures of the two witnesses.
What does this imply?
COMMENTARY
What is interesting also is the way po-
licemen 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 indif-
ference? 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 every-
where else, in Chhattisgarh too, the police
seem to have been pretty confident that
the press would not stray from the brief-
ings 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 pros-
ecution evidence having been demolished,
what’s left? Just a list of supposedly in-
criminating documents seized from his
house? Going by that, all scholars would
go to jail.’’ Advocate Surendra Singh, Sen’s
senior counsel, who concluded the de-
fence arguments, saw this case as “an at-
tempt 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.
23