India

April 18, 2011

The Observatory for the Protection of Human RightsDefenders, a joint programme of the World Organisation Against Torture (OMCT)and the International Federation for Human Rights (FIDH), has received newinformation and requests your urgent intervention in the following situation inIndia.

New information:

The Observatory has been informed by People’s Watchabout the release on bail of Dr. Binayak Sen, National Vice-President of the Peoples’ Union forCivil Liberties (PUCL) and Secretary General of the PUCL branch in theChhattisgarh State.

Accordingto the information received, on April 15, 2011, the Supreme Court of Indiaordered the release on bail of Dr. Binayak Sen. As a matter of fact, theSupreme Court had to review the decision of February 10, 2011 of theChhattisgarh High Court, which refused to grant bail to Dr. Sen on the groundsthat he was closelyassociated with “alleged” people from the Naxalite Maoist guerrilla, which made himguilty of sedition. Dr. Sen had filed an application for a release on bail onJanuary 6, 2011 before the Chhattisgarh High Court. In its April-15 ruling, theSupreme Court stated that Dr. Sen may be a sympathiser to the NaxaliteMaoist guerrilla[1] but that this could not be considered assedition, thus overruling the February-10 decision of the Chhattisgarh HighCourt and allowing the release on bail of Dr. Sen.

Dr. Sen had been sentenced in first instance onDecember 24, 2010 to life imprisonment by the Raipur Additional District andSessions Judge of the same Chhattisgarh High Court, on charges of “sedition” and “conspiracy” under theSections 124 (A) and 120 (B) of the Indian Penal Code. Dr. Sen had been accused - inter alia - of aiding Naxal activity throughthe transmission of letters written by Maoist leaders of the Communist Party ofIndia to a suspected guerrilla leader from the same party in Chhattisgarhprison. Dr. Sen had appealed against the December-24 decision to the Chhattisgarh HighCourt on the grounds that his incrimination lacked evidence toprove that he had committed sedition and conspiracy.

As of issuing this urgent appeal,in spite of the release on bail granted by the Supreme Court to Dr. Sen, the charges against him have reportedly not beendropped. The hearings in appeal against the December-24 decision will thereforebe held before the same Chattishgargh High Court, at an unknown date.

The Observatory welcomes the release on bail of Dr.Binayak Sen, and thanks all the persons, institutions and organisations who intervenedin his favour.

The Observatory nonetheless remains concerned aboutthe charges pending against him and calls the Indian authorities to put an endto the judicial harassment against Dr. Sen and to drop charges against him,since his condemnation only aims at sanctioning his human rights activities.

Background information:

Before his arrest, Dr. Binayak Sen had led humanrights activities in the State of Chhattisgarh, where the State police andarmed Maoists have been engaged in clashes over the last seven years.

Dr. Sen was notably engaged on the promotion andprotection of the right to health of marginalised and indigenous communities in Chhattisgarh. He reported onunlawful killings of indigenous peoples from the Adivasis minority by thepolice and by Salwa Judum, a private militia allegedly sponsored by the Stateauthorities to fight the armed Maoists.

He organised fact-finding investigations on humanrights violations in the State of Chhattisgarh, especially in prisons where hedocumented abuses against detainees such as murders, underfeeding and absenceof adequate sanitation leading to dysentery epidemics. In this context, hewas in contact with people arrested for their alleged involvement in the MaoistNataxite guerrilla.

Dr. Sen had notably visited Mr. Narayan Sanyal, a guerrillaleader of the Communist Party of India (CPI), to monitor his health status andconditions of detention in Chhattisgarh prison.

Those visits to the Maoist leader led to his arrestand detention four years ago. On May 14, 2007, he was charged under the“Chhattisgarh Special Public Security Act 2005” and the “Unlawful Activities(Prevention) Act 1967”, amended by the “Unlawful Activities (Prevention) Amendment Ordinance, 2004”, for“aiding and abetting Naxal activity” and for having transmitted letters writtenby Maoist leaders of the CPI to Mr. Narayan Sanyal in Chhattisgarh prison. FromMarch 15 to April 11, 2008, Dr. Sen was placed under solitary confinement atthe Raipur Central Jailin Chhattisgarh.

On May 25, 2009, the Supreme Court of India grantedbail to Dr. Sen on medical grounds as he was awaitinghis trial by a court of first instance. Dr Senhad been suffering from a heartailment and needed treatment at Christian Medical College, Vellore, in TamilNadu.

On December 24, 2010, Dr. Binayak Sen was sentencedin first instance to life imprisonment by the Raipur Additional District andSessions Judge of the Chhattisgarh High Court under chargesof sedition and conspiracy. Immediately after the sentencing, the bail grantedon May 25, 2009 by the Supreme Court of India to Dr. Sen was revoked, and hewas taken back into the Raipur Central Jail.

Dr. Binayak Sen thendecided to appeal against this sentence on the grounds that his incriminationlacked evidence to prove his accusation of sedition and conspiracy. He declaredthat he had met with Maoist leaders in prison in the frame of his work tomonitor conditions of detention, and that he had never transmitted anydocuments to Mr. Narayan Sanyal. Moreover, acccording to him, his visits to the latterwere always watched by the prison authorities, and no convincing evidence ofhis involvement in the Maoist guerrilla have reportedly been submitted to the Raipur Additional District andSessions Judge in Chhattisgarh.

Following theDecember-24 sentencing, on January 6, 2011, Dr. Sen’s filed a bail application,which was notably supported by forty Nobel Laureates in asigned letter dated February 8, 2011[2].The EU delegation in India was allowed to attend the proceedings which tookplace on February 10, 2011. However, at the end of these hearings on thesame day, his release on bail wasrejected by the Chhattisgarh High Court on the grounds that Dr. Sen wasclosely associated with “alleged” people from the Naxalite Maoist guerrilla. The Chhattisgarh High Courtreferred to the doctrine of ‘guilt by association’ to justify its refusal. Dr. Sen then appealed the decision of the Chhattisgarh High Court dismissing his bailapplication before the Supreme Court of India, which ordered the release onbail on April 15, 2011.

Actions requested:

Please write to the Indian authorities and ask themto:

i. Takeall necessary measures to guarantee, in all circumstances, the physical andpsychological integrity of Dr. Binayak Sen;

ii. Putan end to any act of harassment, including at the judicial level, against Dr.Binayak Sen as well as against all human rights defenders in India;

iii. Complywith the provisions of the Declaration on Human Rights Defenders adopted by theUN General Assembly on December 9, 1998, in particular:

- Article1, which states that “everyone has the right, individually and in associationwith others, to promote and to strive for the protection and realization ofhuman rights and fundamental freedoms at the national and internationallevels”;

- Article6.a, which provides that “everyone has the right, individually and inassociation with others, to know, seek, obtain, receive and hold informationabout all human rights and fundamental freedoms, including having access toinformation as to how those rights and freedoms are given effect in domesticlegislative, judicial or administrative systems”;

- Article9.3.c, which states that: “everyone has the right,individually and in association with others, to offer and provideprofessionally qualified legal assistance or other relevant advice andassistance in defending human rights and fundamental freedoms”;

- Article12.2, which provides that “the State shall take all necessary measures toensure the protection by the competent authorities of everyone, individually orin association with others, against any violence, threats, retaliation, defacto or de jure adverse discrimination, pressure or any otherarbitrary action as a consequence of his or her legitimate exercise of therights referred to in the present Declaration”;

iv. Guaranteethe respect of human rights and fundamental freedoms in accordance with theUniversal Declaration on Human Rights and other international human rightsinstruments ratified by India.

Addresses:

· ShriManmohan Singh, Prime Minister of India, Prime Minister’sOffice, Room number 152, South Block, New Delhi, Fax: + 91 11 2301 6857 E-mal:pmosb@pmo.nic.in

· Dr.P. Chidambaram, Union Minister of Home Affairs, Ministry of HomeAffairs, 104-107 North Block, New Delhi 110 001 India, Fax: +91 11 2309 2979.hm@nic.in

· JusticeKapadia, Chief Justice of India, Supreme Court, Tilak Marg, New Delhi -1,Fax: +91 11 233 83792, Email: supremecourt@nic.in

· JusticeK. G. Balkrishnan, Chairperson of the National Human Rights Commission ofIndia, Faridkot House, Copernicus Marg, New Delhi 110 001, Tel: +91 11 23074448, Fax: +91 11 2334 0016, Email: covdnhrc@nic.in ;ionhrc@nic.in

· AmbassadorExtraordinary and Plenipotentiary Permanent Representative to the UnitedNations (Geneva), Rue du Valais 9, 1202 Geneva, Switzerland. Tel: +41 22 906 8686, Fax: +41 22 906 86 96, Email: mission.india@ties.itu.int

· Embassyof India in Brussels, 217 Chaussée de Vleurgat, 1050 Brussels, Belgium, Fax:+32 (0)2 6489638 or +32 (0)2 6451869

Please also write to the diplomatic representationsof India in your respective countries.

***

Geneva-Paris, April 18, 2011

Kindly inform us of any action undertaken quoting thecode of this appeal in your reply.

The Observatory, an OMCT and FIDH venture, isdedicated to the protection of Human Rights Defenders and aims to offer themconcrete support in their time of need.

To contact the Observatory, call the emergency line:

· E-mail: Appeals@fidh-omct.org

· Tel and fax OMCT + 4122 809 49 39 / + 41 22 809 49 29

· Tel and fax FIDH + 331 43 55 25 18 / +33 1 43 55 18 80

[1] Dr. Sen always asserted, however,that his visits to prisons had solely a humanitarian basis. This human rightsdefender has been harassed since 2007 under the "Chhattisgarh SpecialPublic Security Act 2005" and the "Unlawful Activities (Prevention)Act 1967", amended by the “UnlawfulActivities (Prevention) Amendment Ordinance, 2004”, for alleged links with the Naxalite Maoistguerrilla. See infra, and 2010 Annual Report of the Observatory.

[2] The letter is available on the Free Binayak Sen campaign’s website:http://www.freebinayaksen.org/?p=1504