Manmohan Singh Prime Minister of India South Block, Raisina Hill New Delhi-110001 Subject: Appeal to release Dr. Binayak Sen, protect HRDs and repeal laws that violates human rights norms Respected Sir, Barak Human Rights Protection Committee (BHRPC) is shocked and deeply concerned at the incarceration of Dr. Binayak Sen, an internationally recognized physician, health worker and human rights defender. He has been convicted by an Additional District and Sessions Judge of Raipur, Chattishgarh on 24 December 2010 along with Kolkata based businessman Piyush Guha and maoist ideologue Narayan Sanyal. The judge has sentenced them to rigorous imprisonment for life under sections 124A read with section 120B of the Indian Penal Code, 1860 and sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam (Chhattisgarh Special Public Safety Act), 2005 and section 39(2) of the Unlawful Activities Prevention Act, 1967. Narayan Sanyal has been additionally sentenced under section 20 of the UAPA Act, 1967. The sentence came after two and a half year long trial. Dr. Sen has been in prison for over two years during trial and more than one month after the sentence. Dr. Sen, giving up great career opportunities, dedicated his life in providing health care to the poorest people in the remote villages in Chattishgarh without access to public medical care, where he founded a hospital and trained women to provide basic health care. He also served as an adviser to the state government's public-health committee until May 2007, when he was arrested. As human rights defender holding the positions of national vice president and president of Chattishgarh Unit of the People’s Union for Civil Liberties (PUCL), a leading civil liberties organization in India, Dr. Sen documented numerous cases of gross human rights violations by the security forces and Salwa Judum, a private militia held to be sponsored by the Chattishgarh government, in the name of fight against Maoists, an armed opposition group which also does not respect the rights of people. Dr. Sen often raised his voice against the massacres of people by both the sides and appealed for dialogue and peace. Dr. Sen has been active in exposing the capricious politics of assassination by both the sate and the non-state actors. In a 2005 memo, Sen outlined evidence of torture and abuse by the group and issued an appeal to all democratic forces, all human rights organizations, to join hands in investigating the reality of the Salwa Judum. BHRPC believes that Dr. Sen as been targeted maliciously for his peaceful and legitimate human rights works and criticism of the government policy that violates international human rights norms. His prosecution is malafide; in fact it is a persecution. He has been made an
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example of by the state as a warning to other human rights defenders not to expose human rights violations. The belief of BHRPC is because his trial was not fair. The prosecution could not produce admissible evidence to establish that Dr Sen has been involved in sedition and conspiracy for sedition as defined in the IPC. Or he has had membership of, association with, and has acted in furthering the interests, financially or otherwise, of organizations notified and banned under the CSPS Act as unlawful. Or he has had membership of a terrorist gang or association, has held proceeds of terrorism, or has supported a terrorist organization as required to attract provisions of the UAPA. Documents have been fabricated by the police and false witnesses introduced. The judgment suggests that the judge has ignored evidence provided by the defence and has relied on hearsay evidence of the prosecution. Guilt of Dr. Sen has not been proved beyond reasonable doubt as required by criminal jurisprudence. It is apparent that the judge has been influenced unduly and as a result he has ignored the well established rules of evidence that a statement made before a police officer is not admissible and rules of specificity that the charges framed against an accused should establish the manner, mode and particulars of an offence as laid down in the Code of Criminal Procedure, 1973 and the Evidence Act, 1872. He has also ignored substantive laws pronounced by the Supreme Court of India that a charge of sedition could be upheld if only it was proved that the accused acted to incite violence or public disorder in Kedar Nath Singh Vs. State Of Bihar (1962 AIR 955, 1962 SCR Supl. (2) 769). The SC interpreted section 124A limiting its import only to incitement of violence and public disorder in order to save it from the blows of right to freedom of speech provided by Article 19 of the constitution. BHRPC understands and hopes that these legal questions will be addressed in the High Court and Supreme Court expeditiously. But there is no judicial avenues to undo the damage done particularly to the mental and physical health of Dr. Sen who is a 61 year old heart patient, his family and friends by putting him in this legal wrangle. Facing trial in India is itself a punishment and deterrent. Human rights works in India and country’s image in the world have been affected adversely by this trial. This unfair trial has also put the Indian judiciary and democracy on trial before the international community. Further damage must be stopped and it can be done by releasing Dr. Sen and providing him with adequate reparation and by bringing to book those who conspired to falsely implicate Dr. Sen, fabricated evidence, committed perjury and unduly influenced the judge. Human rights defenders like Dr. Sen provide services that should be provided by the government. They play a great role in upholding and fulfilling the constitutional mandates and establishment of the rule of law by documenting incidents of unlawful actions and atrocities of state agencies, offering legal advice and intervention and constructive criticisms of the wrong policies. They provide legitimate outlet for the grievances of the people. They are not the enemies but the friends of the state and people.
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This has been recognised by the United Nations as well as by the government of India. The UN adopted a Declaration on Human Rights Defenders in 1998 that provides for the support and protection of human rights defenders in the context of their work. The Indian parliament passed the Protection of Human Rights Act in 1993 that recognises the role of HRDs and mandates the National Human Rights Commission to support non-governmental organisations in their human rights work. But in reality people like Dr. Binayak Sen are persecuted and prosecuted under the same laws that were used by the British colonial rulers against people like Mahatma Gandhi and Bal Gangadhar Tilak. BHRPC believes that using repressive laws of colonial era against HRDs and innocent people and enacting new such laws empowering the law enforcement agencies to trample upon universally recognised human rights of the citizens is not the solution to the problem of unrest and insurgency. The rule of law, fundamental constitutional rights and universally recognised human rights must be upheld. To establish the rule of law the enforcement agencies and courts must not violate legal boundaries and the norms of natural justice. Laws passed by the parliament and state assemblies to be just and good at law must fulfil requirements of constitutionality, conformity with international human rights standards as enshrined in the treatises to whish India is a state party and rules of natural justice. There are legitimate inbuilt derogation provided in the constitution and international human rights treatises to deal with extra-ordinary situations. Many Indian laws meant to deal with insurgency and terrorism fall well short of the constitutional and human rights standards even keeping in consideration the derogation provided therein. Some of them have been struck down by the SC (for example, some provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985), some of them have been modified and their imports narrowed down (for example, section 124A of the IPC) and in cases of some others the SC provided additional guidelines to save them from unconstitutionality (for example, the National Security Act, 1980, the Armed Forces (Special Power) Act, 1958 some special laws enacted by state legislatures including the Assam Disturbed Areas Act, 1955 etc.). The UN Human Rights Committee and other organs continue to recommend the Indian state to repeal or amend such laws in order to make them compatible with the international human rights standards. However, these laws are maliciously being used against HRDs increasingly in many states in India. BHRPC, therefore, urges you to intervene to ensure the following: 1. Dr. Binayak Sen must be released immediately and his appeal must be disposed of as soon as possible. 2. An independent inquiry must be instituted to find out those who conspired to falsely implicate Dr. Sen, fabricated evidence, committed perjury and unduly influenced the judge. 3. Dr. Sen and his family must be provided with adequate reparation.
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4. Human rights defenders must be provided full protection and special professional privileges. 5. Repressive laws such as section 124A of the IPC, the Chattishgarh Special Public Safety Act, 2005, the Unlawful Activities (Prevention) Act, 1967, the Armed Forces (Special Power)Act, 1958 etc. must be repealed or adequately amended and brought in conformity with the international human rights standards. Looking forward for your actions, With best regards,
Neharul Ahmed Mazumder Secretary General
Copy to: 1. The Chief Minister of Chattishgarh, for information and actions concerning relevant matters; 2. The Chief Minister of Assam, for information and actions concerning relevant matters; 3. The Union Minister for Home Affairs, for information and actions concerning relevant matters; 4. The Union Minister for Law and Justice, for information and actions concerning relevant matters; 5. The Chief Justice of India, for information and actions concerning relevant matters; 6. The Chief Justice of Chattiahgarh High Court, Bilaspur, for information and actions concerning relevant matters; 7. The Chairperson, National Human Rights Commission, for information and actions concerning relevant matters
Neharul Ahmed Mazumder Secretary General, BHRPC
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