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PUCL, June, 2009

Binayak Sen free on bail

-- By Kavita Srivastava
(General Secretary) PUCL Rajasthan

Dr Binayak Sen was granted bail on the 25th of May, 2009. In the midst of our celebrations that the illegal detention of Dr. Sen is over, some clarification is needed. One question doing the rounds is whether   

  • Binayak was granted bail on medical grounds? No it was a general bail without any conditions on furnishing personal bonds.

I was inside the Court on 25th of May, when the matter of Dr. Sen's bail came up in the Supreme Court. Just before we entered we were given the counter that the Chhattisgarh Government had filed the previous evening. It was the same old things. Profiling Binayak as a naxalite sympathiser, as one sharing the same ideology, claiming that his being doctor was just a cover for his work with the maoists. (See the attachment. I have made a pdf file of the counter filed by them). That really disturbed us. In an hour's time at about 11.15 am we went in.
Our case number was 32 on the cause list. When our number was announced, the two senior counsels Shanti Bhushan representing Binayak Sen and Mukul Rohtagi for Chhattisgarh State got up. The senior judge Justice M. Katju spoke. His first comment, even before any of the counsel's had spoken was that "We know that Dr. Binayak Sen has been in jail for two years, bail should be granted". Sh. Mukul Rohtagi promptly spoke up and said "Your lordship I would like to bring to your notice the facts of the case....". He was interrupted mid sentence by Justice Katju who told him, "take your seat.......we are aware of the facts of the case", and in the same breath," Bail is granted on furnishing personal bonds to the satisfaction of the trial court. Next Case...". . It was actually Justice Ashok Bhan's order on its head. On 10th Dec, 2007 the Ashok Bhan and DK Jain infamous one line order said "The SLP is hereby dismissed".

Atleast I was in a state of shock. It had happened too fast. Had the court really granted bail...? We were still wondering what the outcome of that brief moment had been when one of our friends in court looked at my confused state, raised his fist with a sense of victory and said "celebrate". We got out and met our lawyers and we knew that bail had been granted on the merit that Binayak had been incarcerated too long and that the Supreme Court trusts Binayak so it had asked the lower court to leave him on a personal guarantee, no securites, no conditions, no ground - medical or any other.  That evening when we finally got the certified copy to send to Raipur we read another line in the SC order which further confirmed that the court was in a hurry to ensure the release of Dr. Sen. It said that the "..and this court doth further order that this order be punctually observed and carried into execution by all concerned.” Maybe that is why the Court refrained from giving a longer more reasoned order as that would have further delayed the release.

I had mentioned this even in an earlier debate on the Times Now news channel on the 25th evening itself when the anchor Arnab Sen kept saying that Binayak had been granted bail on medical grounds. I feel the need to set the record straight again.
The attitude of Justice Katju who did the speaking during the hearing which lasted 30 to 40 seconds, was clear from the first sentence that he made that Binayak had been kept two years (as if meaning too long). The case papers that were drafted by our lawyers and presented to the SC were built on the merits of case, where not a shred of evidence could be fixed against Binayak even after examining 70 witnesses in the trial. And since the grounds for bail are dependent on whether the person would influence witnesses if granted bail and whether he/she could be trusted and not as one who would disappear, we had presented these dimensions very strongly as none of them applied to Binayak. Supporting the profile of Binayak we had also filed several news reports, appeals by noble laureates, Amnesty, UK Academics and the awards etc. We had ofcourse also filed the medical status report of the Doctor.
The medical grounds were only argued orally by Mr Jethmalani on the 4th May after Justice DK Jain had issued notices to the Chhatisgarh State Government. The Court's first question to Mr. Jethmalani that day, was whether anything had changed since Dec 10th 2007 when the SLP for bail had been dismissed. Mr. Jethmalini stated that not just the charge sheet but also the trial was underway and more than 70 witnesses had deposed and there was nothing to prove the case of the prosecution. After the show cause notices were issued to the Chhattisgarh State, Mr. Jethmalani brought the health question to the notice of the SC. Let us recall that at the trial court in Raipur the Proseuction had filed an application that Binayak's health was not as serious as opined by the Raipur doctor who had exmained him on the 24th of March. That had got us worried so the argument of him getting treatment of his choice were brought up in the Supreme Court.

The SC order that day was in this order:

  1. Issue returnable notices to the State Government in two weeks,
  2. The case can be listed during vacation if the petitoner wanted
  3. That the best treatement be provided in the State at State expense.


The last part of the order actually was heard by all in the open court as "the best treatment be provided by the State at State expense". When the typed order came the "by" had been replaced by "in". When we got that order we knew that in the next hearing we knew that we would have to make a case for a general bail (not bringing in the medical ground at all).

The morning before the 25th of May, when we were preparing for the hearing, our lawyers had shown us several judgements, including one that was as recent as 18th May where Justice Katju had granted anticipatory bail, arguing that bail should be granted before jail as a person's civil liberties and reputation had to be guarded. Equally strong were his words in bail matter of the month of March where once again interim bail had been granted. So an elment of pro civil liberties, did reflect in these judgements.
While it can be said that there is not much to celebrate about either the Indian Judiciary or the Indian State when it has taken two years to grant bail to one who has been falsely implicated. However, I feel that precisely if we had not built a campaign through the Satyagarh, those fiery marches, speeches, hard hitting articles, Globally people appealing including the noble laureates, all those awards to Binayak and had the complete black and white nature of the case not been higlighted then maybe then I would agree that "we still need fig leaves like heart ailments to bail out our heroic activists who are unlawfully incarcerated".

But in this case I think it is clear that Binayak was granted bail on the merit that nobody who has no evidence against him can be kept in jail for so long. Particlularly in Binayak's case since his profile was that of a Doctor and a civil liberties person who challenged the State, the court could perhaps see that his was being penalised for his views.

So let us keep the argument straight that Binayak was granted bail as his confinement was all wrong. Freedom was his right. His medical condition gets addressed once bail gets granted.

The man is out and let us be happy and it is time we got others out.There are more than 150 of them in Jail.

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014