The Binayak Judgement Deserves ‘Suspended Public Approbation’!

7/31/2019 The Binayak Judgement Deserves Suspended Public Approbation!

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FrontierVol.43:No.38,April39,2011

JUSTICE AND INJUSTICE

The Binayak Judgement Deserves

Suspended Public Approbation!

Without exaggeration, a considerable, if not major, part of Dr Binayak Sen's adult life, with intermittentbreaks, can be said to have been a lived example of the precept, "Our watch word must be - Doctors:go to the wounded. Don't wait for the wounded to go to you", uttered by another doctor (Dr NormanBethune of Canada) at another time. In addition, he, for last few years, as a doctor-cum-human rightsactivist has also been regularly exposing the flagrant state violation of the basic citizens' rights, which,with its devastating aftermath, is affecting the lives of the deprived rural citizenry (in Chhattishgarh), hehas been serving as a doctor now for years. This later role expectedly infuriated power that be in thestate (Chhattishgarh). But the astoundingly inane judgment, sentencing him and two others to life

imprisonment on fabricated charges, reads more like a statement by some police spokesperson than acourt judgement.

Is it possible that the text of this trial (sessions) court judgment on Dr Binayak Sen andtwo others (Pijush Guha, Narayan Sanyal), delivered under obvious and loud extra-judicialcompulsion, sought to ensure, to the maximum extent possible, that the delivered sentence(life imprisonment) fails to stand scrutiny in appellate courts and is ultimately, and in not toodistant a future, overturned by one or the other of the same. In that case, apparenthope/presumption (valid or not) behind such an eventuality would be this that with itsexpected superior judicial sense/ability, appellate courts (if not higher then at least thehighest) would be able to see through the unmitigated hollowness of the judgement and theresulting monstrous conviction, both without the least rational basis in terms of judicial

rectitude and/or otherwise. And in addition, they may be in a position to ignore extra-judicialpressures, if any. In other words, whether the very wording of this rambling judgement (amockery of justice), prepared/delivered allegedly under extra-judicial compulsion, had ahidden, well-guarded agenda of sabotage, knowingly or unknowingly, from the very inside!

If one is a little mindful of the overall character (in addition to details, which, of course, areof fundamental importance) of the unbelievable, outrageous crudity/silliness, of the tiresometext of the judgement, supposed to have been coming from a supposedly erudite source (byconventional standard, judicial fraternity is not expected to be otherwise), the abovesuggestion may not be felt as wild as it possibly sounds first.

On every point of contention from two opposing sides in the trial, the judgement holds,without exception, the prosecution, i.e., police version to be valid just like that, dismissing thedefense argument/version off hand and giving way to all the flimsy, crude excuses of theprosecution, almost raising a doubt whether one is seeing or understanding right! To callthese excuses as 'explanation' would amount almost to a linguistic travesty. There appearsto be not even any semblance of at least a face-saving effort to make a show of weighingarguments of two contending sides, with an iota of some visible judicial sense so as to hidepre-fixed character of the sentence. Some examples of such rare feat and a past example(from different time and place) of apparently face-saving judicial decision are givenseparately in the APPENDIX at the end. It needs to be mentioned in this context, that theaccused were "acquitted" of some other charges, brought by prosecution. Why it can, in allreasonableness, also be looked upon as part of the same prosecution design has been

sought to be presented in the APPENDIX.


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The well known and transparently heinous motive of the state government, viz., to set anexample of the price to be paid by anyone, daring to expose the unabated violent misdeedsof the state, is the rule rather than the exception in India and perhaps is not so much of asurprise, which calls for continuing vigilance and intervention from civil society. But such anopen, visible and unashamed (no attempt to hide) illustration/demonstration of judicialservility to political bosses in power, throwing out all cannons of minimum justice in theprocess with an unmistakably ugly thud, cannot be said to be as common even today. Had itnot been so monstrous/repugnant as well as tragic in its implication, the judgement would besimply ridiculous!

It is difficult to believe that anyone (holding a highly esteemed official position in publiceye), in his/her senses, would make himself/herself such a laughing stock before the wholeworld. The act (deliverance), on the face of it, appears, psychologically speaking, almost likea suicidal attempt to smear the actor's own personal/ official/professional image. So,perforce, and presuming some amount of sanity and common intelligence of any one incharge of preparing and delivering (assuming, it is the same person) the judgement on thefate of others, one is left with the following inference as almost the only plausible (or so it

seems to this writer) one :Though submission to irresistible extra-judicial pressure caused this pre-fixed sentence tobe delivered, the text of the judgment, in effect, seeks silently to nullify the very sentenceand thus reflects a desperate attempt (conscious or more probably unconscious), even atthe cost of being publicly despised, to find a (roundabout, if you will) way out to bothsooth a severely disturbed conscience (judicial and otherwise) and at the same time tosave conscience-holder's life/limb/skin/service in that order!

If so, it is a masterstroke in its own way, and may, in future be considered a very classic andcitable example of attempt at proverbial killing of 'two [difficult] birds with a single shot'! Froma different angle, such deliberate invitation of public wrath and ridicule may even be lookedupon as a kind of self-sacrifice at the alter of one's own conscience, notwithstanding the

primal motive of saving one's own life as well which perhaps is only human!

In view of such considerations, does not the trial court judgment, in addition to beingcensored, also deserves perhaps to be kept under, what may be called 'suspended publicapprobation', in analogy to 'suspended animation', used in well-known life science context?By 'suspended animation' is meant a state of existence of a life-form, where usualmanifestation of life process is held in abeyance, but may (and may not be too, dependingon the experimental requirement) be revived any time in future. Similarly, for the time being,'approbation' may be held in abeyance and revived if and when one or the other of appellatecourts sets aside this monstrous as well as senseless judgement!

Though one bird (ensuring safety of the deliverer) is killed through the very deliverance of

this caricature of a judicial verdict, it remains to be seen, of course, whether the other bird(annulment of this repugnantly loud travesty of justice by any appellate court) is alsoultimately killed! So, for now, an open approbation, contingent on this count, is prematureand may even appear to be a leak-out of a highly guarded secret of a fearful as well asconscience-stricken soul, harming in the process, the very purpose, hidden behind thisjudicial rigmarole!

A Postscript: The shocking news of the bail petition on behalf of Binayak Sen beingrejected by Chhattishgarh High Court (on 11 February, 2011) came after preparing theabove commentary. The rejection shows that the suggested possible hope/presumption(referred to in 2nd paragraph above) behind the judgement was not valid at least in case ofappellate court within the confinement of Chhattishgarh state. It is a confirmation of a knownchilling situation over there and in that sense is not perhaps totally unexpected, which ofcourse, is no consolation to Sen's family and friends. Maybe, the tentative interpretation of


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the trial court judgement offered above, has some validity even for the appellate courtswithin the state and explains its decision! Who knows? With fingers crossed, one can onlyhope against hope that when the appeal goes to Supreme Court, its decision will vindicatethe belief, held by some (and possibly hidden behind the original trial court judgement assuggested above!), that at least the highest judiciary is likely to have better sense.

1. What Does Court Say in Dr Binayak Sen's CaseAmitabh Thakur, IPS, Currently at IIM Lucknow

(http://www.binayaksen.net/2011/01/binayak-sen-moves-hc-against conviction/).2. A Critique of Binayak Sen's Judgment, which is a comprehensive, overall critique of the judgement. It

is available in the link: (http://www.binayaksen.net/2010/12/judgement-and-its-critique/).3. Full text: The Binayak Sen Judgement (English Translation)

(http://www.binayaksen.net/2010/12/judgement-english/).

Some isolated examples, among the glaring ones, of how on every point of contention

from two opposing sides in the trial, the judgement holds, without exception, theprosecution, i.e., police version to be valid

[The text below is based on the English translation of the judgement of the full text(http://www.binayaksen.net/2010/12/judgement-english/) of the original judgement in Hindi(http://www.binayaksen.net/wp-content/uploads/judgement-dec2010.pdf). Para nos. of thejudgement referred to below are, unless otherwise mentioned, under the section titled"Inference and Reasons" in the English translation.]

A part of the judgement in Para 104 reads :"Although there are some omissions and inconsistencies in the statements of

witnesses examined by the prosecution, these are not of substantial nature and theprosecution's entire case cannot be considered as doubtful and therefore rejected,

and also statements of prosecution witnesses cannot be considered unreliable on thebasis of these."

The very text of the judgement gives away the approach underlying the whole judgement.The universally accepted motto behind the jurisprudence in India, following the Britishtradition, to which it owes its origin, is along the line that "The motto of our judiciary is thatwe should prefer to release a thousand guilty rather than to convict an innocent"Sir WilliamBlackstone's Commentaries on the Laws of England (1765-69)(http://forums.catholic.com/showthread.php?t=266178). That's why it is an establishedtradition that in any judicial trial, even in a single case of doubt, it is the accused and not theaccuser who gets what in judicial parlour is called 'benefit of doubt'. The statement that"entire case cannot be considered as doubtful" has the unambiguous meaning that some are"doubtful". Yet the judgement, instead of rejecting the prosecution's case, punishes theaccused, and almost the harshest sentence possible under the Indian penal system isawarded. Life imprisonment is just short of that statutory murder, called 'Death Sentence', ablot on the judicial/legal system in India, which has been abolished in many countries acrossthe world. This shows that, in this particular case, the driving motto (for well publicizedreason) behind the judgement was: 'when in doubt, punish the accused, no matter whetherguilty or not', i.e., just the opposite of what should have been. So, in the judgement it is theaccuser, and not the accused, who got 'benefit of doubt' of its own "omissions andinconsistencies".

As to these "omissions and inconsistencies" in evidence from prosecution side, being 'not

of substantial nature" just a few examples picked up from large numbers, densely populatingthe whole judgement, and presented below will show that the reality is, the just the opposite'beyond any reasonable doubt', an oft repeated judicial idiom.
http://www.binayaksen.net/2010/12/judgement-english/http://www.binayaksen.net/2010/12/judgement-english/http://www.binayaksen.net/2010/12/judgement-english/


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Example 1An unsigned letter (exhibit A-37), supposedly written by the Central Committee of CPI

(Maoist) to Binayak Sen and claimed by the police to have been seized from Sen's house,was not there in the original seizure list, signed by Sen, making it clear, as suggested by thedefense side, that it was planted by the police later on. Police explanation during crossexamination, was "Article A-37 could have stuck (chipak gaya tha) to some other Article,hence the signatures of the accused and the investigator could not be taken". Yes you haveheard/read it right"chipak gaya tha"! After some convoluted reasoning, centering aroundwhy it was not raised by the defense earlier on such and such dates/occasions and the like,the judgement concludes "... the accused Vinayak Sen does not get any benefit of thisargument". So, the judgement, unbelievably enough, accepts this police 'explanation' whenthey were unmistakably caught on their lie as pointed by the defense. (Para 105 to 108)

This means, among other things, that during an ongoing trial, delay (even if there is any)in pointing out a lie transforms that lie into the truth! It is worth mentioning that this plantedletter is a very crucial one among those few scraps of paper (all manufactured, as is evidentfrom statements of the accused and the defense witnesses) on the sole basis of which these

people were sentenced to life imprisonment.

Example 2 (a composite one of 3 interested parts) :(a) In the context of some letters written (admitted by the defense) by the accused

Narayan Sanyal, and supposedly recovered (denied by the defense) from another accusedPiyush Guha, this is what is stated in Para 101 of the judgement:

"The argument by the learned counsel of the accused Narayan Sanyal that thepolice and the prosecution had applied pressure to forcibly make him write the lettersin Articles A-8 to A-10 is also not acceptable as there is no evidence in the matter, norhas the accused Narayan Sanyal produced any reasonable evidence."

How on earth can a person, produce any "evidence", let alone "any reasonable

evidence", of he/she being forced to write something, while under custody? It almost seemsto be coming from an innocent from the Mars, having no idea about the reality of custodyand custodial violence.

(b) In a comparable situation [as in (a) above] in case of the accused Piyush Guha, partof the Para 100 says,

"As far as the question of the forcible nabbing of Piyush Guha by police on01.05.2007 from Mahendra Hotel and illegally detaining him blindfolded till 06.05.2007is concerned, there is no evidence in this matter and neither has Piyush Guhapresented any evidence in his defense to prove it."

It is the same kind of absurd logic (absence of direct evidence of custodial violence

behind bar), as put forward in case of the accused Narayan Sanyal, as mentioned in (a)above, to reject the very reasonable contention of the defense argument. How glibly thejudgement, to all intents and purposes takes leave of minimum rational sense, as if to grantthe wishes of the prosecution!

But accidentally, in this particular case, the "evidence", absence of which the above citedpart of Para 100 speaks of, leaked out through sheer inadvertence (of the prosecution, thatis)! It so happens sometimes, for, unlike reality, consistent in itself, lie has to be artificiallymade consistent, resulting in occasional failures, which is only natural! But instead ofcatching the prosecution on its obvious lie, viz., denial of "forcible nabbing of Piyush Guhaby police", the judgement, as one will see in (c) below, yielded to another lie (of crudestnature) of the prosecution to cover up their first lie.


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(c) The following is summarized from another part of the same para 100, referred to in(b)above :

Earlier, in the Supreme Court, during hearing on bail petition when Binayak was anundertrial prisoner, the police had said that Guha had been arrested from Mahindra Hotel(corroborating Guha's own statement). But in the Sessions Court, the police said that Guhawas arrested from Station Road, where the police supposedly seized the incriminatingarticles, mentioned in the charge- sheet, from Guha's bag. The prosecution/police sideargued that the discrepancy (as pointed out by the defense side) was because of a "typingmistake" (!) in the affidavit filed before the Supreme Court.

To lend credibility to this supposed "typing mistake " in naming the place of arrest, theytalked of another "typing mistake" of writing 06.05.2005. instead of 06.05.2007 as date ofarrest of Piyush Guha. The judgement concludes, "Therefore, accused Pijush Guha gets nobenefit of the above argument" (Para 100).

Two things are notable here :One, name of the place of arrest, supposed to have been wrongly written due to "typing

mistake " being the same (Mahindra Hotel) as that given by Piyush Guha is a very unusualand remarkable 'coincidence', which apparently escapes court's notice!Two, prosecutions wonderful feat of equating "typing mistake" in date , where a single-

digit '7' was erroneously replaced by '5' (quite possible) , with that in place, where "StationRoad" was replaced by "Mahindra Hotel" supposedly for same reason, and thus explainingaway the latter, seemed quite reasonable to the judge!

The unmistakable conclusion by any sensible observer would be that at every turn of thetrial, when prosecution was caught on its lies, judgement showed an avid eagerness to jumpon and catch hold of (reminds one of a sinking man catching at a straw!) any excuse,masquerading as 'evidence', however wild/silly/senseless/ridiculous, to rescue the veryprosecution, which produced that 'evidence' in the first place! Judgement's single minded

devotion, to make way for passing the pre-fixed sentence by any means can hardly bemissed even by one, having no acquaintance with judicial process!

Example 3.According to prosecution version (para 3 to 6 of the judgement) Piyush Guha was

arrested near Railway station and, among other things three letters (mentioned in Example 3above) supposed to have been recovered (according to prosecution) from his bag on search.According to the witness of the said seizure, Anil Kumar Singh (PW 1), who according topolice, was just a passerby:

"In the police station, when accused Piyush was questioned by the policeregarding the seized articles, about where had he obtained the letters from, accusedPiyush Guha answered that accused Binayak Sen used to meet accused Narayan

Sanyal in Jail and accused Binayak Sen got the letters from accused Narayan Sanyal,which accused Binayak Sen gave to him, to take them to Kolkata" (Para 5).

And though Piyush Guha in his own earlier statement, before the Magistrate (only whichis acceptable under law) denied (in Para 8 under the section "ORDER") having ever met orknown any of the two above, Para 6 of the judgement says :

"During evidence, the counsels for accused Binayak Sen, Narayan Sanyal andPiyush Guha objected to recording the above statement of witness as evidence on theground that disclosure made by the accused to the police is not admissible asevidence and hence accused Piyush Guha's stating the name ofBinayak Sen in thepresence of a witness is also not admissible as evidence... the said objection, beingbaseless and without merit, is dismissed."


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So, in ultimate awarding of the sentence, supposed statement of the accused beforePolice (inadmissible under law as the defense pointed out) and not the statement beforeMagistrate was accepted! Apparently, law of land was sought to be bent to prove the un-provable.

Example 4.In para 43 of the judgement one will see the following:"One Prosecution Witness Anil Kumar (PW 1) said ".... that accused Piyush Guha,

on being questioned about where he had acquired the documents seized from him,replied that Binayak Sen used to go to meet with Narayan Sanyal in jail and that washow the said letters were given to Dr Binayak Sen."

Apart from the fact that Piyush Guha in his statement before the Magistrate denied allthese charges as presented in Example 3 above, anyone having least acquaintance withrules of interview between a prisoner and the outsider knows that such interviews, accordingto jail code, take place in the presence of a jail staff. So under such condition no prisonercan pass on anything to any outsider without secret cooperation of jail staff. But no such

allegation against any jail staff has been brought up. But ignoring the objection of the anyexplanation, judgement treats this piece of concocted evidence as one of the corner stoneson which the judgement rests. From the judgement it would appear that the prisoner insideand the doctor-cum-human rights activist Binayak Sen outside met in secret! It is difficult toimagine anything more absurd!

IION "ACQUITTAL"

The fact that the same judgement (paras 118 to 120) "acquits" the same accused persons ofthe charges, "wage a war or abetting the waging of war against the Government of India",apparently creates an air of impartiality about the judgement. But this is quite deceptive. Toall intent and purposes this 'acquittal' seems to be as much a part of the pre-fixed

prosecution design, as the sentence itself. These charges were of no material importance asfar as sentence was concerned. Because, even if these charges were 'proved', thesentence, at the maximum would be one more, life imprisonment'. And then both would runconcurrently. So, sentence could not be enhanced any more. It is very clear from the courtproceedings, as reflected in the judgement, that the design here was to present thesecharges just for form's sake without taking the trouble to press those (unlike the others,leading to the sentence) with any degree of seriousness. That the ruse did not work onlygoes to show that once power goes into head, public mood is often misjudged, as it hasbeen found again and again in despotic regimes across the history.

A letter from Ilina Sen, dated, 14th March '11, published in the "Letters to the Editor"Column of The Statesmanon 16th March '11 Informs that,

"Following our Special Leave Petition in the Supreme Court, the state of Chhattisgarh hasfiled a criminal appeal on 28 February in the Chhattisgarh High Court, submitting that theacquittal 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 waron the State etc."

Clearly the "rogue state" (an apt epithet used by Illina, in other part of her letter) hassuddenly become apprehensive that move in the Supreme Court on behalf of the convictedmay after all win, first, bail, and then ultimate acquittal from the false charges. So, this isevidently an attempt to throw a spanner in the proceedings of the Supreme Court via HighCourt with the hope to be able to obstruct possible release (temporary and/or permanent) ofthe convicted. Early delusion, common with a power-drunk and vindictive state of mind, ofbeing able to get away with anything it does, seems to have given way to a belated


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realization about the deplorable quality of the judgement. That may explain this desperatemove to save the situation by not taking any chance. This is so, even at the cost of changingprosecution's (state's) own earlier pre-design of not pressing for these charges in trial court.

An example of a 'face-saving' effort in judicial decision making at a different time andplace

In a judgement in Bankshall Court, Calcutta, delivered on 5th June 1996, on privately filed'Archana Guha' case* against two Calcutta police personnel accused of custodial violence,inflicted on Archana Guha (paralysing her lower limbs), back in 1974 (when she was aschool teacher), accused policemen were sentenced to 7-year-imprisonment. This is beingcalled a 'face-saving measure because, just after delivering the judgement, apparently as acounter-measure, convicted were granted bail and as a consequence they did not have tostay in jail even for a single moment, and the conviction remained just on the paper. Thecase is still (now for over 35 years) continuing after an appellate court (Sessions Court here,because trial was held in a lower court), in response to appeal against the judgement by theconvicted policemen, sent the case back to lower court for retrial. That the appellate court

did neither grant the prayer of accused (policemen) for dismissal of the case nor did itconfirm the sentence, as prayed by the complainant (the torture victim) and took the safestcourse of sending for retrial, can perhaps also be looked upon as another 'face-saving'judicial effort of appearing neutral.

The main accused (Runu Guha Neogy) in this case, who is no more, earned quite anotoriety for custodial violence during Congress regime but curiously or perhaps not socuriously, he continued to get special patronization as before and got promotion afterpromotion, even when the opposition Left front came to power in West Bengal after InternalEmergency and case was filed against Runu and others. That may explain the judicialcompulsion to first grant him immediate bail and then not confirming the sentence evenduring later regime, who, as is well known, during election campaign have been vociferous in

their condemnation of reign of terror unleashed (true to fact) by the previous Congressregime during the 70's of last century.

Just contrast this with the situation, as in the present case, when policemen are not theconvicted but the complainant/prosecutor is. Just getting bail can become such aninsurmountable barrier!

Perhaps it will not be out of place here to mention here that both the cases enjoyedconsiderable mainstream media attention. One feels, it was very much expected in ArchanaGuha case and is quite fortunate in the present case. Because in the former, for a routineaffair, as everybody knows, like custodial violence, a very rare event like conviction (eventhough on mere paper) of policemen took place. But in the latter, a routine event like

conviction of fighters for people's cause, which major part of the mainstream media does notseem care two hoots aboutwitness the media indifference to many others like the presentaccused, rotting inside prisons for years, for the same reason(s)did attract media attention!

A notable aspect of this case was that the counsel for the complainant Archana Guha at thedecisive last stage of trial was not any professional lawyer but her younger brother SaumenGuha (himself and his wife were custodial torture victims along with Archna Guha), acting ascounsel with special permission of the court, granted after a special hearing session for thepurpose. It is his argument in the trial court which won the case 14 years back.*Details about the case was published in the article "The Forgotten Decade: Archana Guha Case"published first in three consecutive issues (21 & 28 Sep, 5 Oct, 1996) of Frontier, Kolkata(http://frontierindia.scriptmania.com/pagelO.htm). Currently it is available in the website:http://sites.google.com/site/subhascganguly/writings.

The Binayak Judgement Deserves ‘Suspended Public Approbation’!

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