While debating the new anti-terror laws passed in Parliament last month, Home Minister P Chidambaram acknowledged the need for a “fair balance” between respecting human rights and tough laws to deal with terror. That counter-terror measures can hurt individual rights is no idle concern. The 19-month incarceration of Binayak Sen shows why.

Dr Binayak Sen, a graduate of CMC Vellore and a practising doctor, was arrested on May 14, 2007 in Bilaspur under the Chhattisgarh Special Public Safety Act as well as the Unlawful Activities (Prevention) Act and the Indian Penal Code.

He is accused of conspiring with, and being a conduit between Naxalites. Chhattisgarh Director General of Police Vishwa Ranjan admits that Sen is not a “Naxal terrorist hiding in the forests” but accuses him of giving “logistical support” to the Naxals — charges that Sen vigorously denies. His trial began on April 30 last year and 38 prosecution witnesses have so far been examined.

The sheer length of Sen’s incarceration without bail is significant. To compare: Sanjeev Nanda, prime accused in the BMW hit-and-run case, was given bail just four months after being arrested. Another eventual convict, Vikas Yadav — accused of shooting model Jessica Lall in full public view — not only got anticipatory bail, but after a brief four months in jail, was free on bail. Yet Sen, accused with evidence that is fast unravelling, has spent the last 19 months in jail.

The reasons for denying bail have also raised a storm. Sen is accused of non-bailable offences, and the special laws he has been booked under don’t affect his bail rights. Sen first applied for bail before the Raipur Sessions Court and then the Chhattisgarh High Court in July 2007, soon after his arrest.

Typically, a bail court’s primary concern is not the applicant’s guilt or innocence; it is to ask whether, if released on bail, the applicant would interfere with the trial. Will he, for instance, run away? Influence witnesses? Is he required for further police inquiry? How respectable is he? Sen has been honoured by the Indian Academy of Social Sciences and recently won the Jonathan Mann Award for Global Health.

“Sen was never required for investigation,” DGP Vishwa Ranjan concedes, but cautions: “I will definitely oppose bail as Binayak Sen is an important man, and in a position to influence witnesses”. But while opposing bail in court, the state of Chhattisgarh didn’t list out any witnesses likely to be influenced. According to Sen’s lawyer, Supreme Court senior counsel Rajeev Dhavan, this is because “the evidence against Sen is documentary, there are no witnesses to influence”.

The Sessions Court and Chhattisgarh High Court denied him bail in July 2007. Since charges had not yet been framed at the time, the courts relied on police allegations of a “strong prima facie case” to deny bail. This bail rejection was questioned before the Supreme Court in December 2007. Since there is no inherent right to approach the Supreme Court for bail, the court can refuse to hear the matter altogether. On December 10, 2007, the Supreme Court declined to hear the petition but gave no reason.

For the Chhattisgarh government, this counts as moral validation. Soon after winning the state elections in November 2008, Chief Minister Raman Singh brushed off questions on Binayak Sen with: “even the Supreme Court has denied him bail. What is my role?” Since the matter is in court, judges — past and present — are reluctant to take a public stand. Former chief justice and current NHRC chairperson Rajendra Babu declined to comment as “the matter is sub-judice”. But former Attorney General Soli Sorabjee termed Sen’s detention “on fabricated charges” as “illegal” and Rajeev Dhavan called it “the single biggest blot on freedom for bail that we have seen in a while”.

The Chhattisgarh High Court reected a second, more recent bail petition in November 2008. This time, the court refused to consider the unravelling evidence in the trial court as weighing the “arguments relating to the examination of the witnesses”is not an exercise to be undertaken by a bail court”.

Sen’s arrest has provoked international outrage, with demonstrations in India and abroad. Amnesty International, as well as 22 Nobel laureates — Amartya Sen included — have called for his release. BJP spokesperson and senior lawyer Ravi Shankar Prasad, the party in-charge for Chhattisgarh, dismisses this as part of “a systemic international campaign which ignores that in the recent state elections, the people of Chhattisgarh — both urban and rural— have spoken in favour of the government”.

Sen’s legal woes have taken on political colours. State Congress leader Ajit Jogi says: “I know Binayak Sen to be an honest, selfless, server of the poor. To deny bail to such a person is totally wrong. While I can’t comment on the court’s decision, if I was chief minister, I wouldn’t have opposed bail”.

Wife Ilina Sen recently met P Chidambaram. “He was very sympathetic” she says, “but pointed out that the matter was out of his hands, and the decision rested solely with the state of Chhattisgarh”. The Chhattisgarh government continues to oppose bail. Ravi Shankar Prasad cautions against “glossing over the naked violence of the Naxalites under the cover of Binayak Sen”.

At the centre of the storm, Sen remains in Central Jail, Raipur and his trial will likely last a couple of years. Doctors from Sen’s alma mater CMC Vellore, along with medics from Raipur and Bilaspur, have examined him and certify to his “persistent loss of weight, heart problems and arthritis”. Wife Ilina worries that Sen has a “suspected prostrate problem”. Illness, alone, can be grounds for granting bail. Meanwhile, the trial continues in Raipur. Key witnesses are turning hostile, and the case itself is fast unravelling.

— (To be continued)