The Bail to Dr Binayak Sen

This is the story of how and why I granted bail to Dr Binayak Sen in May 2009
Dr Binayak Sen was a Bengali medical doctor who was an M.D. from Christian Medical College, Vellore, one of the foremost medical colleges in India. He could have easily gone to USA or some other Western country and earned tons of money there. Instead he chose to serve the poorest of the poor, the tribals of Chattisgarh state, charging nothing from them for their medical treatment. His friends and relatives ( including his younger brother Dipanker Sen, a businessman in Antwerp, Belgium ) provided him the funds for medicines and medical equipment.

Dr Sen lived an austere life amongst the tribals while serving them medically. This probably created a belief in the Chattisgarh government and its police that he was secretly a Naxalite ( Naxalites are a group who believe in armed revolution ). At that time Naxalite activities were going on in the state of Chattisgarh, and any outsider who entered the state and started doing any social work among the tribals was immediately regarded a dangerous person, branded as a Naxalite, and arrested on trumped up charges.
Consequently, the Chattisgarh police, at the instance of the state government, arrested Dr Sen in 2007 on the charge of being a secret Naxalite, and apparently manufactured/fabricated all kinds of false evidence against him, as is often the practice of police in India.

Dr Sen was in jail for 2 years, with seemingly no chance of release for many years, when fortunately for him his bail petition came before my 2 member bench, in which I was the senior judge, along with Justice Deepak Verma, in the summer of 2009 when I was a vacation judge in the Supreme Court.

The Court was closed at that time for summer vacations, but there are vacation judges during court vacations who hear urgent matters, and I had been designated by the Chief Justice of India as a vacation judge.

Dr Sen’s earlier bail petition had been dismissed by another bench of the Supreme Court after long arguments ( after it had been dismissed by the district court and the High Court ), and had the Supreme Court been open his second bail petition would have gone to the same bench, as is the practice of the Court, which would in all likelihood have rejected it, as it had done to the earlier petition. But the judges who had heard the earlier petition were on vacation, so the second bail plea came before my bench, in which I was sitting as the senior vacation judge.

It was my practice as a judge to read the files of cases in the evening previous to the day when they were to be heard. Among the files I read was that of Dr Sen’s case. After going through the record in great detail I was prima facie convinced that the evidence against him was concocted.

Here was a doctor who could have gone to America and made a lot of money, as many Indian doctors have done, but instead he chose to serve the poor. If I had been the Chief Minister of Chattisgarh I would have called him and said ” Dr Sen, I have heard of your selfless work among the tribals of the state. Please prepare a scheme for medical service to the tribals throughout the state, and my government will give you all financial and other support to implement it”.

Instead, it was decided to jail him, and he would in all probability have remained in jail indefinitely, but for his good fortune that his second bail petition came before my bench.
I was always a strong supporter of individual liberty.

Also, I was known to be a judge who disposed off cases quickly, since there was a huge pendency of cases in the Supreme Court, and I wanted to do my best to contribute to their early disposal. So I would often tell lawyers who appeared before me ” Be brief, be quick, and be off ”.

When the case was taken up in Court, the courtroom was packed with a large number of lawyers, including senior counsels like Mr Shanti Bhushan, Mr Soli Sorabji, Mr Ram Jethmalani, etc present, along with many supporters of Dr Sen. Before the arguing counsel, Mr Shanti Bhushan, could begin his arguments i said ” Dr Sen has already been in jail for 2 years. The normal rule is bail not jail, as laid down by Justice Krishna Iyer in State of Rajasthan vs Balchand. I think bail should be granted. After all, bail is not an acquittal ”.
My brother judge on the bench, Justice Vema, agreed with me.

At this, Mr Mukul Rohatgi, the lawyer for the state of Chattisgarh, stood up and said he wants to go through the evidence in the case.

I interrupted him, and said I had spent 2 hours the previous evening going through the record of the case, including the evidence,.and was well acquainted with it, so he need not take the trouble. And saying that I told him to sit down, and promptly granted bail to Dr Sen. The entire hearing lasted less than 2 minutes.

A few people later criticised me for not permitting full arguments, but most people, including former Chief Justice of India, Justice J.S. Verma, hailed the verdict