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”.

... contd.