Thursday, January 15, 2009

Guest Post: Justice to Binayak Sen - why and how we failed to deliver

[I am pleased to introduce Vinay Sitapati , a promising and dynamic journalist with Indian Express, New Delhi, with keen interest in reporting and exploring legal aspects of contemporary issues. I thank him for promptly agreeing to write this post for us -VV]

Guest Post:
By Vinay Sitapati


I’ve written three serial pieces on the Binayak Sen case for The Indian Express:
1. why he’s been in jail-without bail for 19 months;
2. how the case against him is unravelling;
3. the politics behind the case

Since it’s a reporting piece, I’ve tried to inject very little of my own opinion. I’ve also tried to make it less partisan. As it is, I think a mistake his supporters made was to make it into a political issue (are you for or against salwa judum; how can a doctor be accused thus – it’s a conspiracy), instead of a legal issue (Is Sen guilty under Indian law?). I think the latter question is more clearly in Sen’s favour.

The larger question, which I’m working on for an op-ed piece, is why India’s many public institutions (the police, the magistracy, the high court, NHRC and Supreme Court; apart from the state govt.) failed Binayak Sen. Some (especially Binayak’s supporters abroad) believe this is an instance of a monolith, venal state going after its opponent. That’s the kind of thing that happens in dictatorships and banana republics. India is not one of them. Given our obvious weaknesses, we still have a genuine democracy, and some vigorous public institutions. Witness how the NHRC and the Supreme Court went after Narendra Modi post-Gujarat. Also, the Central govt. sympathises with Binayak, as I pointed out; but are powerless. But these institutions all failed Binayak Sen. Why?

My own sense is that in the face of Naxal terrorism (which, make no mistake, is a grave threat) these institutions have 'bought' the war cries declared by the state govt., and see Binayak's arrest as a political issue -- collateral damage in the war against Naxalites. For just one analogy, witness how so many US institutions -- Supreme Court, Senate, Congress, media -- all rallied around Bush in the heady initial days post 9/11, when they should have been questioning him instead. In other words, I’m interested in exploring the question: what happens to cross-institutional checks and balances, when the law goes to war (in the context of the Binayak Sen case). Any takers?

[Relevant Links: Chattisgarh High Court Judgment declining to grant bail to Binayak Sen. The SC order, which Vinay refers to in his story, is curiously not available on its site, though I managed to get the case number. It is SR 4949/2007, Binayak Sen vs.State of Chhatisgarh -VV]

Update:: (JAN.20, 2009): Read Vinay's oped piece here.

1 comment:

K.V.DHANANJAY said...

Forgive me for attempting to rock this boat where everyone except the Government and Courts believe in this individual, Binayak Sen's innocence.

33 Jail visits in a span of 11 months is quite extraordinary. Isn't it? Thats a visit every ten days. I am curious really. What exactly were the purpose of these visits?

However, as pointed out by the Chattisgarh High Court, the bail application of Binayak Sen was resolved by applying the settled law concerning judicial grant of bail.

The settled legal principles however, seem to favour Binayak Sen. The Prosecution fails to identify who are the witnesses who are likely to be threatened and how. Prosecution simply failed to discharge its burden of proof. So, it appears to me that Binayak Sen is retained in custody not because he does not legally qualify for bail, but simply because he hasn't fully explained himself. Of course, the Courts could have made that observation and granted bail. Its unfortunate that they have failed to note the true basis for denial of bail.

And, until this day, I hadn't heard much about this case except a line or two in a few papers. So, what's next?