Remembering Comrade Sridhar

18^th August 2017. Two years since Comrade Sridhar passed on. Over a period of almost forty years Sridhar Srinivasan contributed in a variety of different ways to the revolutionary movement.

Though no longer with us, he lives on – in his writings and in the countless memories he has left behind. He continues to be the inspiration he always was. Many is the occasion, when confronted with an organisational or political issue, one has tried to measure up to it by a Sridhar yardstick – trying to figure how Sridhar would have looked at it or tried to solve it.

A small example of the Sridhar way is the letters he wrote from jail. Even a simple communication to his lawyer regarding a legal issue could become for him an opportunity to bond politically.

Adv Dhairyasheel Patil, Sridhar’s trial court lawyer, is not only one of the seniormost in the legal profession – he has served as Chairperson of the Bar Council of India; he is also one who keenly and actively participates in the political events of the day.

Sridhar’s letter below to Adv Patil, written in 2010 from Nagpur Central Prison, illustrates a connect somewhat beyond the normal political prisoner-lawyer relationship. Apart from the political commentary, the spirit of the letter has in it the potential to inspire, not only its recipient, but also those of us who read it several years later. A reading and re-reading provides many a lesson.

Dear Mr.Patil,

Here’s to hoping that 2010 will see the people’s struggles rescue Indian Marxism from the hole that the mainstream Marxists have pushed it into.  Just a few minutes ago, the transistor blaring in the corridor outside our cell reported the demise of Jyoti Basu.  It was depressing the way the worst reactionaries heaped encomiums on him.  Depressing because it once again brought home forcefully the abysmal depravity of these ‘Marxists’  who reduced the most  rebellious and radical ideology that man has created into a tame lap dog of the ruling classes.  Praise from Chidambaram and Arun Jaitley – any respectable human being should have been revolted, but I am sure Jyoti Basu  and also those of his ilk would have probably rejoiced as if it were the crowning glory of their lives. (Jyoti Basu from wherever people like him go to when they depart this world). 

There is probably some metaphorical significance in that this icon of defanged, truncated Marxism leaves this world just as the people of Lalgarh have begun to reclaim and resurrect Marxism to its pristine and exhilarating essence. It probably symbolises the process of the old and putrefying giving way to all that is fresh and fragrant.  There is this hint of a unique process of regeneration discernible in India.  In the history of Marxism it has often required the brilliance of individuals like Lenin and Mao to extricate Marxism from the abyss of revisionism and restore it to its rightful place in the van of the proletarian struggle.  But here in India the most advanced social science finds its saviour in the most ‘backward’ tribal people.  Marxism is being expounded and elaborated, not in a rich intellectual polemic or in studied treatises, but by the collective practice of an illiterate peasantry in the forests and mountains.  You may think I am romanticising things extravagantly (maybe so).  But then how else to view these movements in Lalgarh, Jharkhand and Chhattisgarh which are raising the most credible challenge to the ruling classes in the last 60 years.  And their challenge is not just a knee jerk reaction to deprivation but poses an alternative.  Implicit in the practice of this movement is the reassertion of all the fundamental principles of Marxist thought.  In the dialectic between theory and practice, here we find praxis leading theory by the nose.  Traditional and establishment Marxists are unable to grasp the character and essence of the movement and run behind flailing their hands, muttering inanities about violence, democracy, futility of armed struggle etc.  This movement has posed such questions which have confounded these intellectuals.  In the internet websites and columns of magazines like EPW you will find so many of these ‘wise’ men panicking at the way this movement has rendered them irrelevant and without a constituency (except for themselves). 

Undoubtedly the present people’s movement is not just some spontaneous upsurge, but the result of decades of work of a party whose hall mark has been an unswerving dedication to Marxist principles, determination to inseparably link themselves to the people and limitless capacity for sacrifice.  This party brought the theory to the people; now the people have owned it and surged ahead.  Theory now needs to keep pace with the praxis.  Maybe even the party which made all this possible too has lagged behind on drawing the correct theoretical lessons of successes and failures in this practice.  Very few of the Marxist intellectuals seem to be able to grasp or even sense the questions and challenges the movement faces or is itself raising.  Among a few who do attempt to grasp the issues or try to articulate it with some depth is one Saroj Giri.  Attached is another recent article of his which we found interesting especially since he has theoretically tried to present issues which the movement has raised in practice.  Hope you also find it interesting. 

To what extent the peoples movements will reclaim the Marxist heritage and render irrelevant the revisionist version will depend on how well the state’s offensive is repelled.  Chidambaram has wisely decided to disassociate himself from the operational name of his offensive.  He disclaimed any knowledge of ‘Green Hunt’.  He is not sure of a clear and decisive victory – so he talks of a long battle, that all those 70,000 troops are deployed to ensure ‘development’ etc.  He will not like to be burdened with a defeat or a festering war associated to him.  But unfortunately the current offensive has been irrevocably linked to him and he will not be able to wash his hands so easily.  However the balance in military terms is tilted in his favour.   However if he does not achieve significant military success in reasonable time the political initiative may tilt away from him. The consensus he has built behind him will slowly begin to crack. There are small hair line fractures already visible which seem to be coming from below.  Reformist social movements (who are essentially system status quoists), who always viewed the Maoists with anathema are more keen to distance themselves from the repressive state than from the Maoists. (A small but visible reversal of earlier trend).This was the situation a couple of years back.  Should these embryonic fault lines develop into a full blown fissure, spreading from below into the ranks of the ruling elite, then Chidambaram’s military advantage will be of no avail to him.  History shows that if asymmetric wars are stretched out over a long period then it is politics that will determine the outcome and not just military strength.  This is true even for the Maoists – something they should factor into their strategy and tactics. 

Any swing in the political balance of forces in favour of the movement cannot be easily achieved if the movement remains confined to tribal pockets.  Here in lies the Achilles heel of the Maoist movement – its immense weakness in the developed areas and urban centres.  If the Maoists succeed to build their movement in these areas it will strengthen them immensely and make it difficult for their enemies to defeat them.  All those who desire the flowering of Revolutionary Marxism in the country have no alternative but to pitch in and defend this movement from Chidambaram’s offensive.  Hope that 2010 will prove beneficial for the cause of revolutionary Marxism and democracy.

Now that we are ensconced in Nagpur jail we have been able to prod our cases along.  There has been some semblance of progress in this front.  Cases are getting committed to Sessions court and charges are being framed.  These sorts of things should have taken place as a matter of course much earlier.  But our worthy judicial system has the uncanny ability to make even these simple automatic steps in the trial of a person into occasions worthy of much rejoicing.  And jail instils a sense to appreciate small mercies.  But on the whole, things are undeniably slithering forward and who knows, in about 6 months, we may even have the first of our acquittals.  Insha’Allah.  

There is a bit of good news in the Mumbai matter.  An RTI enquiry has yielded a useful response.  It helps to establish the lie regarding the alleged seizure of explosives etc on the day of our arrest.  Attached is a copy of the reply.  Please inform as to what follow up needs to be done and also how we should use it to bring this evidence on record. 

Should we apply for bail in the Mumbai case?  We were thinking of applying for bail in cases here after achieving some acquittals. 

Earlier I had sent you a note regarding the matter of rearrests and foisting of cases after long periods of incarceration or at time of release after acquittal in all cases.  Can you suggest some ideas as to how we could challenge this in the higher judiciary? 

Hope you and your family are in good health.

Yours sincerely, Love Sridhar

17/1/2010

Saibaba, Maruti Suzuki and Aseemanand rulings: Burden of ‘development’ and Hindutva

Judiciary leans to favour a corporate development narrative; NIA remains soft on Hindutva terror.

“Saibaba ko phaasi do” was the slogan that greeted members of human rights organisations from across India assembled at Nagpur on April 8, 2017, for a meeting on “Repression on Social Movements and the Judiciary”. It was a demonstration outside the meeting venue by a clutch of self-styled anti-Naxalite organisations, led by the recently formed Bhumkaal Sanghatan.

‘Mastermind’ Saibaba

The demand of death sentence was for 90 per cent disabled Delhi University professor Dr GN Saibaba who, along with four others, had just a month earlier been sentenced to life imprisonment by the Court of Sessions of Gadchiroli, Maharashtra, for membership and support of the Maoist party.

The demonstrators told the press that their demand was justified, as Saibaba was the “mastermind” of Naxalite violence.

It may seem ridiculous that anyone could think it possible that somebody who is wheel-chair bound, with full-time teaching responsibilities at Delhi, over a 1,000km away, could be the mastermind of the Naxalite movement in central India. But think again before writing this off as the fevered rants of fringe elements.

In fact, these demonstrators were only echoing the outpourings of the ANO (anti-Naxalite operations) police cell. It is the ANO that had, through a press statement within a week of the Saibaba judgment, indirectly criticised the Supreme Court for ordering the release of Saibaba, by claiming that he was the mastermind of 72 violent offences that had been registered while he was out on bail.

This mastermind storyline was widely publicised in the media. Saibaba was in hospital for most of his bail period, but no one asked the ANO how he could direct violent operations over such a distance from his hospital bed. More importantly, no one thought fit to question the police why none of the 72 FIRs registered had even named this so-called mastermind.

A fraudulent development narrative

This casual distortion of logic and truth has been a hallmark of much of what such agencies have spouted in recent years. Such stories aim at shoring up a fraudulent narrative that development – a nasty euphemism for big industry projects that displace and destroy local lives – is being held up by violent resistance devised and even directed by “white collar Naxalites” in far-off metros.

Organisations that are closely linked to security agencies would naturally be expected to remain faithful to this official “development” theme. Journalists are supposed to be more discerning, however, but even that is too much to ask of large sections of today’s mainstream media.

The problem however acquires disquieting dimensions when trial court judges start buying deep into this narrative. This can be seen in the judgment of Judge Shinde, the principal district and sessions judge of the Gadchiroli court.

The judgment seems to be gripped with a desire to see a particular type of “development” in Gadchiroli. Opposition to an iron and steel project at Surjagad is considered proof of being anti-development, and possession of a pamphlet against it is considering incriminating. Such is the judge’s fascination with this project that Surjagad is mentioned no less than 11 times in the judgment.

This despite the project itself being of dubious legality. Seventy gram sabhas in the area have voted against the project and without their approval, the project itself is rendered illegal as per the provisions of PESA (Panchayats (Extension to Scheduled Areas) Act).

Life sentence not sufficient

This however does not stop the judge from giving his understanding of development (or lack of it) a central place in his judgment. Even at the stage of pronouncing punishment, he says, at Para 1013 “…the situation of Gadchiroli district from 1982 till today is in a paralysed condition and no industrial and other developments are taking place because of fear of Naxalite and their violent activities. Hence, in my opinion, the imprisonment for life is also not a sufficient punishment to the accused (emphasis added by us) but the hands of the court are closed (sic)…”

He is so enthralled by the development narrative that he feels that the only appropriate punishment for those standing in its way is a death sentence – the only sentence harsher than life imprisonment. Since there is nothing in the charges, chargesheet or judgment that even alleges (leave aside proves) that any of the accused have engaged in violent activities, it seems that even non-violent opposition to big project “development” is a capital crime.

This bias is amply evident throughout the judgment. It ensured an undeserved conviction and an unjust sentence.

Maruti Suzuki: where unionisation becomes a criminal act

Another case decided around the same time was the Maruti Workers Union judgment decided by the Gurgaon (Gurugram) Sessions Court, Haryana. The case was vastly different and the socio-economic conditions of the two places too are vastly different – Gadchiroli is a forested, unindustrialised district, while Gurgaon is one of the most modern enclaves of the country.

However, here too the same development narrative, albeit another version, was being played out before the courts during the course of the trial.

In this case, an astonishing 148 workers had been implicated in the death of a manager who had been burnt in an unexplained fire during a protest at the Maruti Suzuki plant at Manesar, Gurgaon, in July 2012. They had all been kept in prison for long periods, many throughout the trial, which lasted four years and eight months.

Finally, 13 workers got a life sentence, 18 got imprisonment for various terms and 117 were acquitted. The workers’ actual crime was that they had formed a union of their choice and had demanded the regularisation of the contract workers in the plant.

This “crime” of fighting for their rights resulted in them being denied bail for years despite none having any previous criminal record and there being no substantial reason for keeping them behind bars. Courts at various levels who refused bail seemed to be bending backwards to satisfy big Indian and foreign corporates who wanted to crush the labour movement.

Clearing the way for foreign investors

The development narrative here was one of attracting foreign investment. It was voiced most articulately by Justice Puri of the Punjab and Haryana High Court who, while rejecting bail observed: “The incident is a most unfortunate occurrence which has lowered the reputation of India in the estimation of the world. Foreign investors are not likely to invest money in India out of fear of labour unrest.”

He thus apparently felt that it was the duty of the court to teach the workers a lesson and satisfy foreign investors so that they would be attracted to put their money in India.

Even at the time of sentencing of the workers, the special prosecutor demanded a death sentence by invoking these same words of the high court. He too, like the Gadchiroli sessions court, felt that standing in the way of “development”, here foreign investment, deserved death by hanging. Fortunately, here the court did not accede to this demand.

Nevertheless, the earnestness of the government to somehow bolster their “development” narrative by obtaining a conviction and stiff sentence was a constant pressure on the court throughout the trial. A special public prosecutor was specially appointed for this case who was assisted by a battery of lawyers, including a designated senior counsel.

The case was based on the false evidence of labour contractors, who were interested parties, interested in preserving the contract system that the union sought to abolish. The investigating police officers were in constant attendance to ensure that the witnesses were tutored to parrot before the court the stories that had been cooked up.

NIA shields Aseemanand

Contrast this with the approach of the investigating authorities in the Ajmer bomb blast case that was decided in the same week as the above two cases. Here, the prime investigating agency of the country, the National Investigating Agency (NIA), had worked to ensure that the acquittal of the prime accused and former RSS member Swami Aseemanand was a foregone conclusion.

The Swami had voluntarily confessed before magistrates to being behind a number of bomb blasts throughout the country, but the NIA did not make use of this confession at the trial stage.

The prosecutor, Ashwini Sharma, complained that the IO [investigating officer] did not come once for the hearing, even when he was called and said the witnesses are turning hostile. This attitude of the NIA seems to be their policy in bomb blast cases involving Hindutva accused, as can be seen in the disclosures in 2015 by Rohini Salian, prosecutor in the Malegaon bomb blasts case, that she had been told by the NIA to go soft on the accused.

Now the Hyderabad NIA officers who wanted to appeal against grant of bail to Aseemanand have been refused permission by their top brass in Delhi.

Thanks to the NIA, Swami Aseemanand, a self-confessed bomb blast mastermind, now roams free. Other Hindutva-inspired terror accused like Sadhvi Pragya Thakur are soon expected to follow suit.

Unlike Prof Saibaba, who opposed the displacement of the poor by big projects and the Maruti trade unionists, who stood against the contract system that foreign investors love, their terror acts pose no threat to the dominant “development” narrative of the ruling classes.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/saibaba-aseemanand-maruti-suzuki-judiciary-hindutva-terror/story/1/16614.html

Let justice take its course

The Gadchiroli court verdict in the Saibaba case shows disdain for established law and judicial principles.

On March 7, 2017, the Sessions Court of Gadchiroli, Maharashtra, pronounced a life sentence on Delhi University professor GN Saibaba and four others, and a 10-year imprisonment on another. Many are now questioning the wisdom of handing life sentences to persons who had no accusation of violence against them and had, at the most, been charged only with sympathising with and supporting the Maoist movement. The security agencies, in their turn, attempted to justify the court’s verdict through press statements that painted Saibaba as a “mastermind of many arsons, murders, and abductions”. The Maharashtra Anti-Naxal Operations (ANO) office even seemed to criticise the Supreme Court for granting him bail earlier, stating that “72 offences were registered during this period [when Saibaba was out on bail], which included the murder of two policemen in explosion and encounters, 15 other murder cases and other offences”.

Many in the mainstream media were quick to pick up the ‘mastermind’ angle, without pausing to ask how a person with 90 per cent disability, who spent much of the period in question in Delhi hospitals, could direct violent operations 1,200 km away in Gadchiroli.

Some did point out that the ANO statement conveniently did not specify whether the cases were registered against the professor after his release on bail in April 2016; 72 registered crimes “masterminded by Saibaba”, but without a single FIR in his name!

What’s more worrying is when trial court judges start buying into this narrative of “violent resistance directed by ‘white-collar naxals’ in far-off metros”.

The 827-page judgement of Suryakant S Shinde, the principal district session judge in Gadchiroli, displays a reasoning that runs counter to the maxim “Not only must justice be done, it must also be seen to be done.”

‘Not harsh enough’

In para 1,013, the judge says, “Hence, merely because the accused no.6 Saibaba is 90% disabled is no ground to show him leniency and though he is physically handicapped but he is mentally fit and he is a think tank and high profile leader of banned organization CPI (Maoist) and its frontal organization RDF and by the violent activities of accused nos. 1 to 6… the situation of Gadchiroli district from 1982 till today is in paralyzed condition and no industrial and other developments are taking place because of fear of naxal and their violent activities. Hence, in my opinion, the imprisonment for life is also not a sufficient punishment to the accused but the hands of the Court are closed (sic)…”

The judge makes it plain that he personally feels the accused deserved the only harsher sentence available in Indian law — death by hanging. The law restricts death sentence to only the rarest of rare cases when aggravating circumstances outweigh mitigating circumstances. Shinde, however, offers no convincing basis for his assertion in favour of a death sentence.

His mention of “violent activities of accused nos. 1 to 6” is without basis, as there is nothing in the charges, chargesheet or judgment that alleges (let alone proves) this charge against any of the accused. There is also no evidence linking the development of Gadchiroli, or lack of it, to naxal violence.

These assertions are merely the judge’s personal opinions, which have limited weightage under the Indian Evidence Act. They would, however, certainly have served to prejudice him in favour of conviction and the harshest possible sentence. This bias is also seen in the rest of the judgment, particularly during the crucial evaluation of evidence.

Rules bypassed

The case rests heavily on the authenticity of the electronic evidence — memory chips, hard disks, pen drives and the like — shown to be seized by the investigating authority. As it is easy to tamper with electronic evidence, the law is stricter on its admission. The essential requirement of a certificate under section 65B of the Indian Evidence Act has been bypassed under the pretext that “prosecution has proved beyond reasonable doubt that at no point of time there was any alternation (sic) or manipulation in the electronic data contained in electronic gadgets.”

A trial court cannot waive the statutory requirement, but Shinde just brushed it away.

Biased evaluation

Eighteen of the 23 witnesses examined were police or government officials, and most others were professionalpanchas(apanchais a person called to witness and check the truthfulness of a police action), who had been used by the police in several cases, and included one who was a home guard and another employed to clean the police station. Among the most crucial witnesses was Jagat Bhole, thepanchfor the search-and-seizure at the Delhi University home of Saibaba. Illiterate, he had been specifically picked by the police over the numerous professors and students present there at the time — possibly because they felt he would be more amenable to manipulation.

Bhole, however, told the court that “the police kept myself and Saibaba out of the house and locked the door from inside while the search was going on”. This obviously rendered thepanchnama(a record of the search) unreliable, as it violated the provisions for searches and evidence gathering.

Judge Shinde got around this by simply rejecting this part of the witness’s evidence. His logic: “It is to be noted that this witness is illiterate witness. He cannot read and write English language and his cross examination was held in whole day that too by eminent lawyer having standing practice of more than 25 years and this witness might have frightened because of Court atmosphere.”

But the judge did not use the same yardstick for other crucial evidence — for instance, the confessional statements of accused 1 and 2. Both young Madia and Gond tribals, they retracted their confession after alleging that it was extracted from them in police custody through torture and intimidation.

Judge Shinde chose to disbelieve the complaint of ill-treatment and used an unbelievable leap of logic to assert that Marathi, the language in which the confession was recorded, was known to the accused. He states that the confession was retracted through an “application in Hindi language and… accused no.1 Mahesh and No.2 Pandu also signed in Marathi language”. Since Hindi, Marathi and even Gondi (the mother tongue of the accused), all use the Devanagari script, it is meaningless to conclude that the “accused were well conversant with Marathi and Hindi” from their Devanagari signatures.

Contrast this with the confessions of Swami Aseemanand, a blast accused, that were made well after he was out of police custody and in jail. His subsequent retraction was accepted, leading to his acquittal.

Going bananas on evidence

The court uses the flimsiest of reasons to convict Prashant Rahi and Dilip Tirki. It says, “Finding of incriminating article i.e. Yatri card (Art.126) shows that accused no.4 Prashant Rahi was going from Delhi to Raipur and finding of newspaper with him which was usually used by the members of CPI (Maoist) and its frontal organisation RDF as identification code to recognize each other shows that he was going to forest area to meet underground naxals as alleged by the prosecution.”

The court arrived at this conclusion based on an article by award-winning Hyderabad journalist C Vanaja, who once reported how she established contact with Maoists by using a particular newspaper and bananas as identification codes. This article was shown to have been found on Saibaba’s computer and used as evidence at the trial — a bizarre reasoning that was considered sufficient to grant Rahi a life sentence.

Saibaba has been the joint secretary of the Revolutionary Democratic Front (RDF). In trying to establish that it is a terrorist organisation under the Unlawful Activities (Prevention) Act (UAPA), the judgment attempts to take upon itself powers that only the Central Government has. Its logic: “there is photo of accused no.6 Saibaba and there appears a meeting under the head of banner “Release all political Prisoners unconditionally”… Saibaba is addressing to the people. This shows that accused no.6 Saibaba is the active member of banned organization.”

Similarly, elsewhere it states, “Slogan “Lal Salam” is used by naxals and members of banned organisation RDF and hence it is clear that accused no.6 is a member of banned organisation CPI (Maoist) and its frontal organisation RDF and inciting the people with slogans Lal Salam Lal Salam.”

The Supreme Court has often held that the implementation of procedural provisions must be more rigorous in the case of special and stringent laws such as UAPA. In a similar case involving writer-activist Sudhir Dhawale and eight others, the Gondia Sessions Court had acquitted all on the grounds, among other things, of the non-fulfilment of provisions under the UAPA. The State appealed against the acquittal, but was rejected outright by the Nagpur Bench of the Bombay High Court. In an order passed just seven days after the Gadchiroli judgment, the HC gave prime importance to the sanction order showing compliance with the mandatory provisions of law, such as an independent review within the time limit, and that the sanctioning authority was aware of material that would constitute an offence punishable under the UAPA.

Overlooking basic principles

In contrast, the Gadchiroli court has been lenient to the prosecution, holding that the relevant sections of the UAPA were non-mandatory, and non-compliance did not vitiate the proceeding. Another important provision of law was given the short shrift.

In a criminal case, the proof should be beyond reasonable doubt — that is, no other explanation can be derived from the facts except that the accused committed the crime. A civil trial, on the other hand, simply requires a preponderance of probabilities — that is, its version of facts is more likely than not the correct version, as in personal injury and breach of contract suits.

At several points the judgment has dispensed with the principle of proof beyond reasonable doubt. On the other hand, it seems to be applying the civil trial principle in what is clearly a criminal proceeding. “According to the defence, the newspaper Sahara dated 19-8-2013 was found in possession of accused no.3 Hem Mishra and newspaper Lokmat dated 20-8-2013 was found in possession of accused no.2 Pandu Narote. This shows that accused were arrested on 20.8.2013. However, merely because the accused persons were found in possession of newspapers dated 19-8-2013 does not mean that they were arrested on 20-8-2013. According to the prosecution, newspaper is used as identification code by the members of banned organization… Hence, the version of the prosecution appears to be more probable than the defence”.

Similarly, the principle of adverse inference — “evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it” — has been turned on its head. The prosecution admitted to obtaining the CDR (call details report) of accused 1 and 2 but withheld it despite the defence asking for it to be produced, as it would prove false the prosecution’s arrest story (according to the prosecution, the accused were arrested along with JNU student Hem Mishra on August 22, 2013, from Aheri, whereas the defence contends they were picked up from Ballarshah on August 20 and their phone SIM were removed. The CDR would have settled the question and, had the defence been found right, proved the falseness of the very FIR on which the whole case is based).

Judge Shinde blames the defence for not obtaining the CDR on their own, overlooking the fact that such information can be shared by a telecom company only on the orders of a court. The judgment abounds with numerous such transgressions. The defence plans to appeal before the Nagpur Bench of the Bombay High Court at the earliest, given the fragile health of Saibaba.

Apart from his disability and cardiac and orthopaedic problems, Saibaba is suffering from acute pancreatitis, for which he was hospitalised in Delhi for four days just ahead of the judgment. Amnesty International has raised the issue of the alleged denial of medical treatment to him in jail.

Saibaba the human rights activist, however, is more pained by the misinformation shrouding the case.

In a letter to his lawyer from prison, he says, “We are deeply pained by looking at the false and defamatory and negative propaganda stories in newspapers… targeted for exerting pressure and influencing public opinion, in turn seeking to affect the legal process.”

Several civil liberties activists and organisations have raised their voice against the judgment. Two members of the European Parliament from Spain and Germany have written to the European Commission, calling for measures to ensure “all legal guarantees are respected under the highest human rights standards for him and the rest of prosecuted people”. Saibaba and his co-convicts can only hope that, whatever be the views on the bench, they will not be permitted to stand in the way of justice.

By Arun Ferreira and Vernon Gonsalves

(This article was published in the Business Line print edition dated April 8, 2017)

How political dissenters end up languishing in jails without bail

Deliberate delays and denial of bail has amounted to sentencing without trial.

Activists of the Kabir Kala Manch, perhaps one of the best known progressive cultural troupes of Maharashtra, heaved a sigh of relief on January 3 when three of their members finally walked out of jail after three-and-a-half years. A Supreme Court bench granted bail to Sagar Gorkhe, Ramesh Gaychor and Sachin Mali.

The apex court’s bail order pointed out that though the state had told the Supreme Court in July 2016 that the trial would be completed within six months, it had, till January 2017, only partially completed the examination (leave aside cross examination) of just one of the 147 witnesses it proposed to examine. Such a rate of progress in trial would have meant a lifetime of waiting for its completion. The bench ordered their release.

Method in the madness of trial delays

While it has become customary to blame the backlog of cases in courts for these seemingly crazy delays in trial, there is at the same time a method in the madness that is quite clearly at work, particularly when in comes to political dissenters.

The delays are often the fruit of a deliberate dalliance between police and prosecution to postpone service of summons, hold back witnesses, neglect bringing the muddemaal or physical evidence to court and other such means to ensure that the trial process is effectively paralysed.

This strategy is deployed because the prosecution is aware that most cases against political detainees are weak and often falsely fabricated by the investigating authority and likely to end in acquittal. These “political” cases are normally instituted under harsher laws like the Unlawful Activities Prevention Act (UAPA) and the Public Security Acts of various states. Such laws allow arrests on vaguely defined charges with insubstantial evidence. They also prescribe bail norms which render it difficult for courts to grant bail.

Inordinate delays then become the prosecution’s means for imposing a “sentence” of long years, which entails rotting in jail as an undertrial without bothering to go through the hassle of obtaining a conviction. Thus, though the accused are finally found to be innocent, the judgment offers small comfort for someone who has already spent almost the maximum possible sentence as undertrial.

Inordinate delays then become the prosecution’s means for imposing a ‘sentence’ of long years rotting in jail as an undertrial without bothering to go through the hassle of obtaining a conviction.

Protection for the perpetrators

Such tactics, while being criminal, neither hold consequences for the investigator or the prosecutor; nor are there any redressal for the victim. A classical case in this regard was related to the Akshardham Temple terror attack of 2002. Six accused in the matter remained in custody for 12 years before being finally acquitted in 2014 by the Supreme Court. The judgment, quoted then in DailyO, explained how the case had been fabricated and the accused framed through concocted statements.

The accused then filed a writ petition in the Supreme Court asking for redressal and compensation for the years lost. Despite the unequivocal observations of the 2014 SC judgment indicating that the accused had been falsely implicated, the same court refused to either punish the perpetrators or compensate the victims. If, in a case which the SC itself has held to be fabricated, there is not scope for recompense, there is obviously nothing much the judicial system can offer by way of righting such wrongs committed by the police-prosecutor combine.

Laxity of the courts

In fact it often seems that the bench too is, unwittingly or otherwise, part of a system that ensures that political dissenters are “punished” without trial. In the case of the KKM members too, though the SC granted bail, almost half of their period spent in custody was during the pendency of their application before the same court.

In another similar case of a political prisoner from Maharashtra, Sudhir Dhawale, editor of the magazine Vidrohi, the Nagpur Bench of the Bombay High Court rejected bail, but ordered a timebound trial within a period of six months — only to extend this period three times over, while each time rejecting Sudhir’s bail. He was finally declared not guilty — but only after serving a “sentence” of 40 months as an undertrial.

Reluctance to grant bail

The irony is that, even where the duplicity of the investigating agency is prima facie quite apparent, the courts have been reluctant to exercise their power to grant bail. A recent case is that of the team of lawyers and human rights activists from Telengana who, in December 2016, were on a fact-finding mission to Chhattisgarh to probe accusations of police atrocities in Bastar. Though they were arrested in Telangana they were taken across the border to Chhattisgarh so that they could be charged under the severe Chhattisgarh Special Public Security Act. The basis shown for arrest was the purported seizure of demonetised notes of one lakh, which they were allegedly taking to “help” naxalites in Bastar.

Despite the illogicality of the argument of lawyers carrying demonetised notes from Telangana to naxalites in Bastar, despite the notes being obviously planted and despite there being no law or rule in force prohibiting the possession of one lakh of demonetised notes, the bail applications of the team members were denied first by the magistrate’s court of Sukma and then by the sessions court of Dantewada. The Dantewada court felt that it was premature to grant bail.

The option of approaching the Chhattisgarh High Court in Bilaspur is not only cumbersome but also, considering the delaying tactics of the prosecution, likely to be long drawn out. The Telangana lawyers, research scholars and journalists who are part of this team will now have to prepare themselves to eke out a few months, if not more, in Bastar’s jails — a “sentence” being imposed without any realistic case at all.

Death sentence by encounter

But perhaps they should consider themselves lucky. In their very own state of Telangana, the police have taken the lead in taking this practice of delivering prison sentences to their logical conclusion. On April 7th 2015, five Muslim prisoners, who were on the verge of completion of their trial where they expected acquittal, were killed in cold blood while being taken to court. The Telangana police probably decided that they deserved not acquittal but the death sentence. They executed accordingly.

A similar dubious “encounter” killing of eight undertrial accused of the Students Islamic Movement of India whose trial was reportedly approaching acquittal was executed by the Bhopal police on October 31 2016.

Despite widespread protest by human rights organisations, the political establishment has indicated that those who have carried out these killings enjoy its support. Pehaps an indicator of the forms of justice delivery in the days to come.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/chattisgarh-maoists-bastar-kabil-kala-manch-political-dissenters-fake-encounters-cases-trial-delay-jail/story/1/15045.html

How the State makes Muslims pay for Hindutva terror

The court discharged nine accused in the 2006 Malegaon blasts case, which was an indictment of former ATS chief KP Raghuvanshi.

KP Raghuvanshi, former chief of Maharashtra’s anti-terrorism squad (ATS), was understandably absent from the media glare around the Mumbai special MCOCA (Maharashtra Control of Organised Crime Act) court’s order of April 25, 2016 that discharged nine Muslim accused from all charges in the Malegaon bomb blasts case of 2006.

The retired additional director general of police had led the ATS investigation of the Malegaon blasts as well as the Mumbai train blasts of 2006. Just a few months earlier, in September 2015, he had been prominently present in the MCOCA court at the time of the delivery of the train blasts case judgment, handing out sound bites and interviews to the electronic and print media alike. This time around, however, he was nowhere near the court.

Just three days before the court discharged the nine accused in the Malegaon case, Raghuvanshi had appeared in a lengthy exclusive interview with Times Now’s Arnab Goswami on prime time television (see video below) defending his investigation and implication of the nine accused and expressing confidence in the trial court.

Goswami, in his typical media trial fashion, had even delivered a verdict that he “believed” Raghuvanshi’s version. However, when the actual trial court ruling came, Raghuvanshi was unavailable even to the Times Group. Times of India reported that he was “not available for comment, despite repeated attempts by TOI“.

ATS involved in serious offences

Raghuvanshi’s reticence obviously stemmed from the court’s systematic demolition of his chargesheet and its drawing of conclusions which pointed categorically to Raghuvanshi and his men being involved in a string of actions that actually amounted to serious offences under the Indian Penal Code (IPC).

The ATS case rested on the confessions extracted from eight of the accused, one of whom was targeted to be made approver against the rest. When the case was handed over to the National Investigation Agency (NIA) the confessions were all shown to be obtained under duress, making them worthless as evidence under section 24 of the Indian Evidence Act.

It was found by the NIA that the confessions in most cases could not be true as there was conclusive proof that the accused were actually at places other than they were shown to be in the confessions. Accused number two, Shabbir Ahmad, was actually in judicial custody at the time he was shown in the chargesheet to be participating in actions relating to the blasts. The obtaining of such false confessions, under duress, is an offence punishable with imprisonment up to seven years under section 195A and section 330 of the IPC.

The other important evidence proffered by the ATS was the matching of soil samples from the blast site and the godown of accused number two which was shown to also contain RDX. The NIA verified this and found “that the panchas/witnesses who are shown on the panchanama of lifting soil were not present at the time of collecting the soil samples but present at some other place” (para 59 of the MCOCA court order).

Such a discovery which has been upheld by the court is an extremely serious finding amounting to an offence committed by Raghuvanshi and his investigating team of fabricating evidence with intent to procure conviction for a crime, which is punishable under section 194 of the IPC with life imprisonment. It also raises questions regarding the source of the RDX shown, pointing to possible offences under explosives and terror laws. This would require a separate investigation.

The court also debunked the core of the ATS’ case to be “highly impossible and improbable” and “not a digestible story”. The ATS showed that the accused were making bombs and holding key conspiracy meetings in the godown of Shabbir, accused number two, when Shabbir himself was in custody in a case under investigation by the ATS. Few things could be less believable.

The judge also found the “basic foundation or the object” behind the blasts shown by the ATS to be “not acceptable to a man of ordinary prudence”. He didn’t believe the tale that a Muslim group aiming to stir up Hindu-Muslim riots had targeted a Muslim religious occasion rather than the Ganesh idol immersion that had just preceded the Muslim holy day. He concluded that the nine Muslim accused were innocent and had been made scapegoats by the ATS and therefore ordered their immediate discharge from the case.

Discharge is not justice enough

The discharged accused welcomed the court’s pronouncement with tears of relief and prayers of thanksgiving. When one of the authors (Vernon) spent time with them in jail in 2007-’08 they had come across as simple men who had wrongly been framed.

Though they had been shown to be leading activists of the banned Students’ Islamic Movement of India (SIMI) and operatives of the Lashkar-e-Taiba (LeT), they did not show any signs that they shared the ideology and approach of these organisations.

They spent their time in jail trying to be of some help to their fellow prisoners. Shabbir had some knowledge of acupressure and his skills were constantly on call – even by the jail staff. Sridhar, one of the co-accused, had his arthritic knees attended to by Shabbir.

Vernon got advice on management of bleeding piles from accused number five, Farogh, when he met him in prison. Farogh was one of the two unani doctors implicated in the case. Their jail-time simplicity seems to have continued outside and most of them have not asked for anything more than the present court judgment.

But would the MCOCA court judgment suffice? On the day after the judgment, India Today TV’s Rajdeep Sardesai tweeted, “No outrage here? no hashtags/trends? No ‘framing’? Who will give these men back their 10 years?”

Others have called for compensation and punishment of the officers responsible. These calls for justice are correct and will probably go before the higher judiciary.

Deeper conspiracy of the higher-ups

Justice in a courtroom, however, cannot address a problem that goes somewhat deeper and extends much higher than Raghuvanshi and his men. Malegaon in 2006 was after all only one in a series of bombings of Muslim targets during 2003-2006, that included Parbhani, Purna, Jalna in Maharashtra, Modasa in Gujarat, Hyderabad, Ajmer and Delhi and also the attack on the Samjhauta Express.

Most of these were falsely pinned on innocent Muslim men, thus leaving the field open for the actual culprits to continue their terror plans. It was only after the cracking of the Malegaon blasts case of 2008 during the eight-month tenure of slain ATS chief Hemant Karkare that further investigations were made, which made it clear that all these were the handiwork of Hindutva-inspired modules engaged in a deep conspiracy with links to the higher echelons of the Rashtriya Swayamsevak Sangh (RSS) and even the state apparatus. As the links started reaching higher there was a definite slowdown in the investigations during the United Progressive Alliance (UPA) rule.

With the coming of the BJP in Delhi, there has been a systematic endeavour to subvert the cases. Investigators, prosecutors and witnesses have been pushed to toe the Centre’s line. The cap was blown on this by the senior public prosecutor in the Malegaon 2008 case, Rohini Salian, who disclosed how she had been told by the NIA to go soft on the pro-Hindu group Abhinav Bharat that is believed to have been a part of the conspiracy.

She was later removed as prosecutor. This plan of going “soft” on the Hindutva terror accused seems also to go hand-in-hand with going “hard” on Muslim accused. This was on display in the discharge of the nine Muslim accused a few days back, and the court order itself referred to the NIA doing a volte face. It had shifted from a “no evidence” stand of 2013 to a “no discharge” stand in 2016.

With such directions from the top to the premier agency investigating these blasts, it should come as no surprise that most of the witnesses are turning hostile in the trials of Hindutva accused and there is only a remote chance of any of them getting convicted. This fixing of the court trials is then being used in recent months to run parallel media trials where the principal accused, particularly Lt Col Prasad Purohit, are beind declared innocent.

Thus the support to these terror accused, which was relatively discreet in the UPA days, is now on open display. It emanates from the highest levels of government and the state apparatus and from significant sections of the media and civil society.

It is the type of support that aims at nurturing “our” Hindutva terror gangs that will supposedly keep the “other” communities in check. It is the type of support that the Pakistani ruling classes displayed for years to “their” terror operatives until things got totally out of hand. It will require more than courts of law to handle this malaise, if we are not to tread the path traversed by our neighbour.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/hindutva-malegaon-blasts-narendra-modi-mcoca-ats-kp-raghuvanshi-ipc-hemant-karkare-muslims-simi/story/1/10339.html

Prison hunger strikes are part of struggle for azadi and democracy

When the cases are false, the authorities try all means to extend the period of the trial.

It is a battle for democracy and justice, a battle for azadi. It does not have the sound and lights and the cadence of the catchy “azadi” sloganeering of the current student agitations.

But that does not make it less of a fight for rights and freedoms than any of the other struggles that have captured the imagination of the country and its media over the last few months.

It is a silent, grim, almost wordless fight that is going on right now in Odisha, behind the walls of Bhubaneshwar’s Jharpada Special Prison.

There are no marches, no speeches, just a bare statement, by seven prisoners, asking for implementation of the most basic fundamental rights granted by law and by the country’s highest constitutional court – the right to a speedy trial and the right to be produced regularly from prison in order to be present at one’s own trial.

Those raising these demands are undertrial prisoners, mostly tribals and Dalits, implicated in cases of Naxalite violence. But the only violence in this struggle is the violence caused to their own bodies by their chosen mode of protest – hunger strike.

As these words are being written, the ongoing hunger strike of the political prisoners in Odisha, which began on March 30, 2016, is in its third week. This is the stage when the medical condition of the person on hunger strike worsens dramatically and it becomes difficult to even stand.

Two of the seven hunger strikers have already been shifted to hospital. The authorities, however, are not showing any signs of acceding to any of the demands. In fact, the delays in trial are mainly owing to deliberate non-appearance of police witnesses on several dates.

Since the cases are false and mostly end in acquittal, the authorities try all means to extend the period of trial so that the prisoners remain as long as possible in jail as undertrials. The police are in no mood now to give up this strategy.

The experience of the Odisha political prisoners is nothing new. Arun Ferreira (one of the authors of this article) had himself undergone a 27-day-long hunger strike along with 12 other political prisoners at the Nagpur Central Prison in 2008.

The demand of the hunger strike then too was a mere implementation of the law. They were demanding a stop to the illegal practice of re-arresting political prisoners at the prison gates immediately on their acquittal and release in earlier cases.

A recent example was the two-month-long hunger strike in August-September 2015 by 26/11 Mumbai attacks accused Zabiuddin Ansari at the Arthur Road Prison in Mumbai. He was protesting his illegal solitary confinement and non-production in court.

Thus the demands of these and numerous other strikes of political prisoners over the years have mostly been to merely secure implementation of the law and to stop violations of rights guaranteed under the Constitution.

Prisons follow colonial standard operating procedure for hunger strikes

It is, however, rare that the prison and police authorities accede to the demands of political prisoners. The standard practice is to turn a deaf ear to even the most reasonable of demands while ensuring that the prisoners on hunger strike are kept completely cut off, not only from the society outside, but also from the other prisoners. During the present Odisha prison struggle, the striking prisoners have been denied all visits – even by close relatives or defence lawyers.

Meanwhile, while keeping each hunger striker separate, all attempts are made to dupe or tempt them into giving up the strike. If such attempts fail, the next method is force-feeding. This standard operating procedure was laid down during British rule and is still followed in all the prisons of the country. It is mostly successful in breaking a hunger strike without acceding to the demands.

In spite of the low possibility of the administration agreeing to their demands, political prisoners still very often resort to hunger strike. As Arun has explained, hunger strike is often the only option to get basic human rights in prison. This was also the approach of the revolutionary prisoners during the struggle against British rule.

Bhagat Singh launched several such hunger strikes during his period in jail. It was during one such hunger strike in 1929 that the revolutionary Jatin Das gave up his life after going 63 days without food. His death anniversary on September 13 is commemorated to this day by political prisoners in jails across the country. His protest was against the discrimination between Indian and European prisoners and the inhuman conditions in prisons. Soon after his death, some changes came about.

Hunger strikes in prisons increase the democratic space

Even if demands are not immediately agreed to, the mere assertion and determination involved in a hunger strike in prison is an announcement to those who rule that the political prisoner is not one to take things lying down.

This in itself often manages to open up a democratic space where none existed and forces a re-working of the equations of power in jails. When such struggles are repeated by the same prisoners and by future batches of prisoners, the administration is forced to give in to some, if not all the demands.

The results of such repeated struggles can be seen in better prison conditions in places where political prisoners have fought for their rights, such as Punjab, Telangana and Andhra Pradesh. Struggles have even forced the administration and judiciary to ensure better implementation of the principle of bail as the rule and jail as the exception.

In most states, however, prison conditions continue to be extremely inhuman with the deliberate violation of most constitutional guarantees. It was Russian novelist Fyodor Dostoyevsky who said: “The degree of civilisation in a society can be judged by entering its prisons.”

By that yardstick, the civilisational standard of our society would be pretty low. But all is not bleak. Struggles in prisons, like the present one in Odisha, are growing. Many of these struggles may not achieve their immediate demands. But they will nevertheless make their own significant contribution to the ongoing struggle for azadi and true democracy.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/prison-reform-odisha-naxalism-mumbai-attacks-bhagat-singh-maoist-azadi-british-rule/story/1/10131.html

Letter to Nitish Kumar from Bhagalpur Prison’s death row

The re-elected chief minister of Bihar needs to show whether he has the will to render justice to the oppressed castes.

The election of the new mahagatbandhan government in Bihar has raised hopes of various sections, with many expecting a lot from the alliance that defeated Narendra Modi. A number of demands and appeals are landing at the newly sworn-in chief minister’s door. We thought it only appropriate to appeal for justice on behalf of four prisoners rotting in jail on death row.

Dear Nitish Kumarji,

We are four citizens who reside in Bihar and wish to congratulate you on becoming the chief minister of Bihar once again!

At the outset itself we want to make it clear that we did not vote for you. But we did not even vote for Narendra Modi. In fact we did not vote for anyone. We have not been allowed to vote for anyone from almost twenty four years. That’s because we have been in jail since then and no one in jail is allowed to vote in any election.

We have spent more than fourteen of these years on death row, in the shadow of the scaffold, knowing that we could be the next to get the hangman’s noose. Over twelve-and-a-half years have been spent waiting for the government to decide on our mercy petition and we still do not know where it has reached.

Death sentence for dalits, acquittal for upper castes

Nitishji, you may have heard of our case, where we have been convicted in an offence where 35 upper caste Bhumihar landlord men were killed in February 1992. In the Supreme Court the judgment of one of the three judges pointed out how the police investigation was “totally defective” and how the evidence was unreliable. He acquitted one of us and removed the death sentence of the other three because the only evidence against us was that we were present on the spot. This evidence too we must say was totally false.

The other two judges however gave all of us death penalty because they felt that the offence was such that the collective conscience of the community demanded the death penalty. They felt that the act was “depraved” and those who committed it were “beast”.

But the courts did not use the same principle of collective conscience for judging the upper caste men who were accused of killing 21 Dalits at Bathani Tola in 1996 or of massacring 58 Dalits at Laxmanpur Bathe in1997, or of butchering 23 in Shankarbigha in 1999, or for any of the numerous other caste massacre crimes committed throughout the country, where children, women and men of oppressed castes have been killed. It seems that those who calculate collective conscience only favour the upper castes. This naturally not only makes us believe that injustice has been done to us as individuals, but also makes all the oppressed castes feel that they cannot expect justice from the casteist system.

Justice for oppressed castes

We therefore appeal to you as the CM of a mahagatbandhan, which has come to power with promises to ensure the welfare of the backward castes, minorities and dalits, to do something to ensure justice for us and for the numerous members of the oppressed castes and exploited classes who are behind bars in the jails of Bihar.

Please decide immediately regarding our petitions to the government which have remained pending since March 2003 and which now appear to have been lost. This long delay itself has been a punishment and we deserve to be released.

Please try and ensure that the casteist investigative and judicial machinery, which gives death sentence to Dalits for the death of upper castes but acquits upper caste accused who have massacred Dalits and other oppressed castes, is corrected.

Nitish Kumarji, the Bihar State Legal Services Authority (BSLSA) has recently done a survey of all the prisons in Bihar during which the surveyors visited all the jails and met many prisoners, including us in Bhagalpur. The BSLSA has brought out a Status Reort – 2015 which points out that  there are over 30,000 prisoners rotting for years in Bihar’s overcrowded jails. This report has given various suggestions for improving prison conditions and changing rules. These suggestions should be implemented and the numbers in the jails should be reduced, by releasing on bail or personal bond or otherwise the countless inmates from the exploited and oppressed classes who are suffering only because they do not have the money and resources to get the legal help to set them free.

While making this desperate appeal to you we must nevertheless make it clear that we doubt whether you will give us justice or even try to give us justice. You have been the CM of Bihar for ten out of the twelve-and-half years that our mercy petition has remained pending, but your government did not even try to find out whether the petition had been lost and take a decision. But since you are now again re-elected we have no option but to ask you to decide.

We also know that you too are very much a part of the casteist state structure that is biased against the oppressed castes. When you got elected in 2005, one of the first things you did was to dissolve the Justice Amir Das commission that was investigating into the caste massacres of the Ranvir Sena and its political links. At that time many in your alliance and your party were involved in providing money, arms and political backing to the upper casteist killers. I hope you will be different this time because you have been elected through a mahagatbandhan which claims to speak for the backward and oppressed sections of society.

Hope in a hopeless situation is perhaps foolish, particularly after spending almost a quarter century behind bars. But do we have a choice? Without hope what would we be?

Krishna Mochi,

Nanhe Lal Mochi,

Bir Kuer Paswan and

Dharmendra Singh

Prisoners on Death Row, Bhagalpur Central Prison, Bihar.

Yakub Memon, the 7/11 train blasts and Collective Conscience

The Maharashtra government’s overeager announcement of July 30 as the date for the 1993 Mumbai blasts accused Yakub Memon’s hanging even before his curative petition in the Supreme Court was decided has been met by a host of divergent voices. Some, while pointing to the Memon’s voluntary surrender, have opposed his hanging, even calling it a travesty of justice. But such voices have been drowned by a number of others calling for an execution without delay – mostly basing themselves on an argument sanctified in various judgements of the Supreme Court – that in such cases it is only the death penalty that can satisfy “the collective conscience of society”.

But collective conscience has an ambiguous arithmetic. While the 257 dead in the March, 1993 blasts in Mumbai – for which Memon is to be hanged – demand retributive judicial action, the 1,000-odd killed in the riots just a couple of months earlier have been quietly laid to rest without a single person being punished – and society’s conscience seems none the worse for this. The political parties, media and other manufacturers of this collective conscience are obviously not that intensely affected by the terror of pogroms by the majority community.

Studies show how this concept of collective conscience, when applied to criminal law, is highly subjective and flexible, and differs widely depending on the views and whims of the judges involved. This undermines the principles of objectivity and neutrality that are supposed to govern the operation of the criminal justice system. Conviction and sentencing then does not depend solely on evidence brought before the court during a trial. If the preconceptions of a particular judge lead him to consider an offence as particularly heinous, he is likely to decide that conviction and a harsh sentence is the only way to satisfy the conscience of the society. This then leads to the conclusion that capital punishment has to be imposed on someone – anyone.

Delay in delivery of the 7/11 judgement

The next major case of this kind that is due for judgement is the one relating to the Mumbai train blasts of July 11, 2006 – also known as the 7/11 case. When the trial in this case was closed and judgement reserved on August 19, 2014, the special public prosecutor in the matter told the press that the judgement would come in a month. Almost a year has passed without a judgement being delivered and the latest expectation is that it will come by July-end or early August.

The delay is understandable considering the difficulties before the judge. On the one hand, the horrific nature of the blasts brings the pressure of the collective conscience-makers to bear on him to somehow ensure that capital punishment in sufficiently large numbers is imposed. On the other hand, the large holes in the prosecution’s case on account of false implication of the accused by the investigation team makes his task a tricky one.

False implication, fabricated story, torture and forced confessions

Many of the 13 accused in the case were office-bearers, activists and supporters of the Students Islamic Movement of India (SIMI) who were first arrested at the time of the initial ban on SIMI in 2001. During the five years upto the July, 2006 blasts they were under constant surveillance, while regularly attending the court cases lodged against them for membership of SIMI. Some among them even had to regularly report at local police stations as part of the conditions of bail granted to them in those cases. Interviews conducted with some of them, available on YouTube, detail the close watch and scrutiny they were under right till the time they were implicated in the train blasts case. The cases against them and their attendance at police stations is a matter of record. It is thus clear that it was quite impossible for such highly-watched individuals to have been part of a plan to make and plant bombs in the city. But being easily and quickly available to the Anti-Terrorist Squad (ATS), which was eager to show some results and arrests in the case, it did not matter that these were not the real culprits. Anyone would do anything to satisfy the collective conscience.

The proceedings that followed have been related by Manisha Sethi in her article, “Dr NARCO and Other Stories from KAFKA Land“, which is included in her book, Kafkaland: Prejudice, Law and Counterterrorism in India. Using material from terror cases in various parts of the country, she describes the modus operandi of torture, narco analysis and forced confessions to produce chargesheets. In the 7/11 case the application of MCOCA (Maharashtra Control of Organised Crime Act) made forced confessions before police officers admissible in court and these became the basis of the chargesheet.

An important challenge to this chargesheet came from within the police force itself. The Mumbai Crime Branch, then under the leadership of Rakesh Maria, the present Mumbai police commissioner, came out with its own version, which completely contradicted the ATS’ version. While investigating the Maharashtra links to the Ahmedabad and Surat blasts of 2008, they produced another confession that showed it was another group, which had nothing to do with the 13 arrested accused, that planned and executed the train blasts. The ATS refused to use this confession as it would show the ATS’ original story to be false.

The lengthy police custody remands needed by the ATS for torture and forced confessions were obtained by claiming that they needed to interrogate the accused in relation to their mobile phone call data records (CDR), which they claimed would prove their guilt. However, when the chargesheets were finally filed, they did not contain any CDR whatsoever. When the accused asked for the records, the ATS first refused to give them, then said they had lost them and then told the telecom companies to charge the accused an exorbitant sum running into several lakhs of rupees. It was only as a result of orders from the Bombay high court that the CDRs were handed over to the accused, which conclusively disproved the ATS’ story.

Considering these and other major contradictions and holes in the prosecution’s case, it is only just and reasonable to expect that the judgement will declare the ATS’ story to be false and order that the accused be acquitted and released. But will the blindfolded goddess of justice be able to remain deaf to the loud cries for blood being raised by many political parties, media channels and other manufacturers of collective conscience and deliver a true and independent verdict? The coming days and weeks should provide the answer.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/yakub-memon-simi-1993-mumbai-blasts-mumbai-train-blasts-mumbai-crime-branch-rakesh-maria/story/1/5124.html