Malegaon blasts case: Implications of Supreme Court’s conclusions in Lt Col Purohit’s bail judgment

We witnessed the unnerving casualness of the top court.

“I am a small fry... I blame my destiny”: Lieutenant Colonel Shrikant Prasad Purohit, speaking to the press on August 22, 2017, after the Supreme Court ordered his release on bail in the 2008 Malegaon blasts case.

“We’ve done it and we’ll do it again”: Purohit and his co-accused, talking to other jail mates, at the time of their arrest, and their first entry into Arthur Road Central Prison in November 2008.

Both statements are true. The investigations initiated by Hemant Karkare, ATS chief in 2008, quite convincingly indicated that Purohit’s team “did it” – it executed a terror plan to engineer blasts in Malegaon and other Muslim-dominated areas. At the same time, it also seems true that he was not the prime architect of the larger terrorist conspiracy; he was relatively “a small fry”.

High-level involvement in terror plans

As pointed out earlier in our column, the conspiracy behind the Malegaon blasts and other similar Hindutva-inspired terror cases quite apparently extends high up, not only inside the Rashtriya Swayamsevak Sangh (RSS), but also within the state apparatus. Purohit was conducting the operations at the behest of higher-ups in the state apparatus and political setup of the country. He was thus, in reality, a somewhat minor foot soldier in a larger game plan masterminded by others.

The first judicial recognition of this fact came with the Supreme Court bail order of August 21, 2017. Among the reasons for granting him bail is the court’s “considered opinion” that Purohit “has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well” (para 24 of the bail order). The Supreme Court thus accepted his contention that “it was a ‘covert operation’ of Military Intelligence” (para 14 of the bail order).

This is not the first time that Purohit has advanced the argument that he should be exonerated because his higher-ups in the Army were well-aware of the blasts plan. However, the judiciary had, until now, refused to accept either the truth or the logic of this claim.

The Bombay High Court had, less than four months earlier on April 25, 2017, specifically concluded that his acts “do not, prima facie, support the contention of the Appellant [Purohit] that he was acting under the ‘Covert Military Operation’ and was also working in discharge of his duties. If it was so, he would have immediately contacted his superior officers in the Army or, at-least, appraised the Police, who were investigating the case, about his role. At-least, he would not have any apprehension of being arrested in the case.” (para 158 of the order of the Bombay High Court rejecting Purohit’s bail application).

Implications of SC findings

This logic of the high court and lower courts now, however, stands discarded after the setting aside of the entire April 25 judgment by the highest court of the land. The implications of this “considered opinion” of the Supreme Court are, to say the least, nightmarish. The apex court has — by setting aside the Bombay High Court judgment and agreeing prima facie with the Purohit version of “facts” that rope in his superiors — now become the first court in the country to incriminate the higher echelons of the military in a terrorist blasts conspiracy.

If Purohit is to be believed — that he was assigned as a mole and kept his seniors in the know about Abhinav Bharat’s terror activities — his bosses become equally culpable in the blasts for not passing on information in their possession to the investigation agencies. Karkare’s reasoning for keeping them out of the charge sheet was that he stood by the version that Purohit was acting on his own without the knowledge of his superiors.

This was earlier accepted by the judiciary. But now, with the Supreme Court holding otherwise, the door has been opened for seeing very senior military officers in a different light and even for implicating them in terror crime.

Hindutva communalists in high military ranks

The nightmare of Hindutva communalists in the high military ranks has often been flagged by those who have worked at those levels. Former Indian Naval Chief, Admiral Vishnu Bhagwat has even gone on record to say that he recalls briefings in the chiefs of staff committee, which were “communal and clearly biased against Muslims”. He has observed, “The RSS has always had an agenda right from 1947-48 to infiltrate the armed forces as well as the intelligence services and the bureaucracy.”

The post-bail scenes too have been extremely disquieting. The army establishment went into overdrive to organise a grand welcome for the terror accused. An advance team of officers visited the prison a day before Purohit’s release. He moved out of jail regally in an air-conditioned car with a six vehicle escort convoy of truckloads of army men. The pomp and pageantry on display could be explained, not by the excuse given of a “perceived security threat”, but more as a public assertion of the army brass as to where their sympathies lie.

Such assertions of celebration and support were also to be seen on several army and security websites and chat groups. The Military Intelligence (MI) community, in particular, went into self-congratulatory mode, with social media resounding with messages calling him “the pride of intelligencers” being circulated among MI and army personnel.

Few found it repugnant that a professedly professional army should freely fete a terrorist blast accused. It would be difficult to deny that this had to do with the religion of the accused and the religion of the targeted victims.

Charge sheet softened, Karkare slandered

Simultaneously, there has been a concerted attack on the hitherto unquestioned integrity of Hemant Karkare, the police officer who was killed in the 26/11 Mumbai terror attacks. His investigations had cracked the terror ring of Abhinav Bharat and exposed its links to higher-ups in the RSS and the state apparatus. These findings were diluted by the post-Modi NIA, who had even evicted Rohini Salian, Special Public Prosecutor, from this case, by telling her to go soft on the terror accused who had been nailed by Karkare.

Subsequent to Salian’s exit, the NIA filed a “soft” supplementary chargesheet that inexplicably dropped charges under the Maharashtra Control of Organised Crime Act (MCOCA), which Salian had fought all the way to the Supreme Court to preserve. This meant that all the confessions recorded under MCOCA could not be used as evidence.

The supplementary charge sheet also deliberately deviated from the original charge sheet, which had the findings of Karkare. This “variance” was the principal reason given by the court for granting bail to Purohit.

More shocking was the Supreme Court’s acceptance of Purohit’s claim that the investigators had planted RDX on the accused’s body. If Karkare were alive today, acceptance of such wild allegations by the top court would potentially have opened him to an indictment under section 194 of the Indian Penal Code for fabricating evidence in a capital offence, which carries a punishment of life imprisonment – a high price to pay for making the mistake of assuming that the Indian State is as secular as the Constitution proclaims it to be.

Bleak prospects of a secular republic

The outlook for secularism in the republic is decidedly bleak. Officers like Karkare with a will to follow the Constitution and rule of law are a rare and vanishing species. As Admiral Bhagwat had observed, the armed forces, intelligence agencies and bureaucracy have, since long, harboured ominous communal biases.

Under UPA, these biases ensured deliberate delays and feet-dragging on cases implicating the Hindutva terror outfits uncovered by Karkare. Under Modi, the bureaucracy and investigating agencies have taken definite steps to ensure the release and acquittal of culprits.

Now we have the unnerving casualness of the highest court, which, while giving credence to the claims of an accused that the highest military intelligence officers were all complicit in a terror conspiracy, does not deem it necessary to even initiate their indictment in this regard.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/lt-col-purohit-indian-military-malegaon-blasts-hindutva-saffron-terror-supreme-court/story/1/19210.html

State is testing the limits of Narmada Bachao Andolan activists

The architects of this ‘state-engineered modern-day genocide’ are not gangsters or despots but genteel bureaucrats, industrialists, politicians, SC judges.

“We will request you to move from your houses after the dam comes up. If you move it will be good. Otherwise we shall release the waters and drown you all.”

This is not a mafia don from a Mario Puzo novel presenting his victims with an “offer they can’t refuse”. It is Morarji Desai in 1961, the then finance minister of the Indian Republic, speaking to its citizens who came within the submergence zone of one of its big dams – the Pong Dam in Himachal Pradesh.

Desai, who went on to become the prime minister in 1977, could, however, be excused the gangland tenor of his threat. He was, after all, only doing his duty and honestly expressing the cold non-negotiability in the coercive intent of the Indian State when it came to questions which it considered to be about “development”.

State violence and coercion

The same coercive intent continues to this day. It is right now on full display in a violent drama of epic proportions being enacted on and around the banks of the Narmada, where the oustees of the Narmada dams are resisting the latest round of aggressive actions being perpetrated on them by the state.

On August 7, a 2000-strong armed horde of policemen and other security personnel was deployed to lift a frail and aged Medha Patkar, along with five others, from the site of their 12-day-long hunger strike. The strike was in protest against the latest round of state-planned flooding, which aims to see 40,000 households being flushed out of their homes without any promise of their rehabilitation.

According to the government this deployment of such a huge force was necessary to save the hunger-strikers’ lives by providing them medical aid.

However, two days later, when Patkar had taken medical help and was proceeding back to the hunger strike site, her transport was encircled by 35 police vehicles and she was taken to jail. Despite doggedly sticking to the path of total non-violence, the Gandhian hunger striker has now been arrested by the Madhya Pradesh Police in four cases, including one of kidnapping, carrying a punishment of up to seven years’ imprisonment.

Thousands of more para-military personnel are waiting in the wings, tasked with the forcible eviction at the point of a gun of lakhs of forest dwellers from their ancestral abodes. Whole communities will see the end of the world as they have known it; the livelihoods, also the lives, of thousands of families will be destroyed.

The Patkar-led National Alliance of People’s movements (NAPM) accurately calls it “state-engineered modern-day genocide”.

Architects of genocide

The architects of this genocide are, however, not men known for their cruelty or tyranny – they are not gangsters or despots. They are the genteel technocrats, bureaucrats, industrialists, politicians, Supreme Court judges and the like who have drawn up the plans, served on the committees, drawn up the rules, signed on the judgments that have resulted in lakhs being driven from their homes with scanty hope of a similar alternative existence.

They are, with the rare exception, all highly learned and cultured, and many perhaps have never been known to have personally hit or physically hurt any human being. They are, however, all united by a commitment to a horrendous level of violence, which the most vicious convicted criminal would not even be able to contemplate, let alone commit.

Adivasis ‘should suffer in the interest of the country’

This commitment comes from a common belief that destruction and suffering and “sacrifice” is necessary to achieve “development”. This has been classically enunciated in Jawaharlal Nehru’s 1948 speech to those who were to be ousted by the Hirakud Dam, “If you suffer, you should suffer in the interest of the country.”

Clad in the rhetoric of self-sacrifice for the sake of the nation, Nehru’s words did not, however, disclose how that story of suffering and sacrifice would not only be calamitous, but also be extremely selective and discriminatory against the most exploited and oppressed of this land.

One estimate in 2000 said, “In India, during the past 50 years, more than 50 million people have been uprooted from their homes and huts, displaced from their farms, jungles and rivers and sacrificed at the altar of ‘national interest’.”

Another study found that adivasis, who constituted 8 per cent of the total population of India at 1991 Census, make up 55 per cent of the total displaced persons due to development projects up to 1990.

Thus, the model of development chosen by the state not only ensures that a tremendously large number of the people have to experience utmost misery, destitution and destruction due to this “development”; it has also targeted the most vulnerable sections to be the ones who, as Nehru said, “should suffer in the interest of the country”.

In the case of Narmada valley too, most of those displaced belong to the Scheduled Tribes – one study placed it at 60-70 per cent of the total.

Complicity of state organs

All organs of the State have been complicit in the violence. The Supreme Court has twice permitted an increase in the height of the dam that has, each time, drastically increased the numbers who have been chased out of the valley without even being rehabilitated. Governments have made deliberate false statements claiming total rehabilitation and then gone ahead and flooded larger areas and submerged more villages.

The present flooding is one more in a long line.

This time the people have resolved not to move from their homes unless they are fully rehabilitated. This doggedness may seem unreasonable to some, but going by the past record of the Indian state, their position is only understandable. It is well-known that once the villagers vacate their homes, they can have no hope of any rehabilitation.

The Pong Dam submergence area dwellers addressed by Morarji Desai in 1961 were ousted in 1974, but over 40 years later they are still awaiting the land and rehabilitation they were promised.

But, despite the determination and dedication of the valley people and the activists of the NBA, those who command the organs of the state are ruthlessly bulldozing ahead.

It is therefore unlikely that the fate of those on the Narmada would be far different from the horrors that the Pong oustees experienced. There in 1974, the people in the submergence zone “suddenly found the water rising and many were forced to run for their lives leaving their property to be submerged. In fact, several unfortunate oustees who had not been quick enough had been drowned. Most people lost their crops”.

Morarji Desai was a part of the government then, but his threat of 1961 had been fulfilled by the State.

Non-violence of the protestors met with bloody violence of the State

Medha Patkar and the Narmada Bachao Andolan (NBA), who have led the resistance of the people of the Narmada valley since almost 30 years, have been remarkably consistent in their insistence on non-violence. The NBA has been often held up as “an international icon of non-violent protest”, without a single instance of resorting to deliberate violence to achieve its ends.

Its main weapons have been propaganda, marches and rallies, lobbying with those in decision-making positions, petitions in courts and the moral pressure of hunger strikes.

The NBA was successful in creating sufficient opinion in international fora to force the World Bank to withdraw from the project. However, that has, in no way, stopped the Indian State from continuing on a course of violent implementation of its “development” plans and bloody suppression of all resistance to it.

This has forced the NBA, which started off on an agenda that directly opposed dam construction altogether, to retreat from that position to one of acceptance of the dam, provided there was minimum displacement with proper relief and rehabilitation. This too has, however, proved unachievable, despite the perseverance and commitment of the NBA and its supporters.

‘Do we meet the State army with a people’s army?’

As the waters rise, the Supreme Court has slammed its doors on a plea from the NBA for intervention. With no hope of moral pressure producing an impact on any branch of the state apparatus, the imprisoned Medha Patkar had no option but to give up her fast on the 17th day without any result.

Thousands of oustees have been implicated in false cases and many of the leaders have been put behind bars. The leaderless masses outside are now valiantly digging in their heels, but have no real options in the face of the might of the State. They now confront a situation which Patkar had seen coming for some time.

Two months ago, as the Central and state governments were then massing their troops, she was running from pillar to post to get the support required to stall the process and prevent forced eviction of the villagers. She had in desperation then asked, “What do we do? Do we meet the state army with a people’s army?”

As the state armies now advance, armed with a mandate to turn the Narmada red with the blood of their victims, this may well be the question running through the oustees’ minds.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/voices/dams-displacement-state-violence-narmada-medha-patkar/story/1/19007.html

Challenges before Azadi Kooch and Bhim Army

The caste-annihilation movement must guard against threats from the State and from ‘within’.

Eighteen months after the start of the countrywide #JusticeForRohithVemula movement and 12 months after the radical response of the Gujarati Dalit to the Una atrocity, the upsurge of anti-caste protests led by militant Dalit organisations shows no signs of abating.

Notwithstanding a cycle of protest-arrest-protest-arrest-protest, the movement is yet advancing, gathering new forces with each new wave.

Azadi Kooch and Bhim Army

The ongoing Azadi Kooch (Freedom March) in Gujarat from July 11 to July 18, 2017, commemorating the first anniversary of the public stripping and thrashing of seven Dalits by gau rakshaks of Una town, is perhaps emblematic of this process.

Led by young lawyer Jignesh Mevani of the Rashtriya Dalit Adhikar Manch (RDAM), it encompasses a wide-ranging coalition of Dalits, Muslims, Patidars and others and has been joined by activists of various shades from throughout the country, including student leader Kanhaiya Kumar of JNU. Despite cancellation of permissions and detention of all participants at the very start of the seven-day march, it determinedly soldiers on.

This has been preceded by several months of militant Dalit resistance to Thakur-led onslaughts in and around Saharanpur in western Uttar Pradesh. It was spearheaded by the Bhim Army, led by another young lawyer, Chandrashekhar Azad.

One of the high points of this resistance was a 50,000 strong gathering on May 21, 2017, at Delhi’s Jantar Mantar, one of the largest agitational mobilisations seen in the capital in recent times.

This rally, held in the shadow of an imminent offensive by the state, saw Chandrashekhar and Mevani together on stage appealing to the crowds to take ahead the movement. Two weeks later, Chandrashekhar and a yet undisclosed number of Bhim Army activists were held, amid a total clampdown, including an indefinite internet blackout.

Chandrashekhar, in anticipation, had concluded his address at Jantar Mantar by prophesising, “I want to say that if they try to kill one Chandrashekhar, there will be lakhs more to rise.”

His statement well embodies the audacity of hope that such a movement on the ascent has, and must have. This obligatory optimism must however also confront the enormity of the challenges before any movement possessed with the mission of annihilation of caste in this country.

Threats and challenges

The threats and challenges before the contemporary anti-caste movement are broadly of two types: the first being the open attacks and repression of the dominant feudal castes and the State machinery that stands solidly behind them; the second being the surreptitious, sabotaging, interventions from “within” by those sections of the oppressed castes whose interests lie in holding back the movement’s creativity and militancy, and diverting it into acceptable channels.

State repression

It is no secret that the very State machinery that is supposed to implement constitutional provisions and laws for the abolition of caste, is itself deeply wedded to the preservation of the caste system. It is thus extremely rare for the perpetrators of upper caste violence to face action from the coercive arms of the state. Police authorities do not easily register complaints of caste atrocity. If they do, the cases are diluted and it is common to file false counter-cases against the victim.

If, on the other hand, should the oppressed dare to show some militancy in resistance, they must be ready to face all the vehement violence that the security agencies are capable of – lathi-charges, firing, implication in false cases under draconian laws, and even torture.

Naxal-branding

These brutalities are sought to be rationalised by first branding the anti-caste organisations and their leaders as Naxalites. Once this label is stuck, it is seen as fair justification for any cruelty and the abandonment of the rule of law.

Both Jignesh and Chandrashekhar have seen this branding. Jignesh says: “A Dalit activist is conveniently labelled a Naxalite.”

Chandrashekhar goes one step further. He told the May 21 crowds at Jantar Mantar: “If anyone speaks of justice these people call him Naxalite and terrorist.”

While denying being one, he warned his oppressors not to test the patience of the oppressed, thus implying that they would, if necessary, take such steps.

He even used the imagery of Udham Singh, the revolutionary who assassinated British governor O’Dwyer, to promise retaliatory violence on those involved in caste atrocities.

However, Chandrashekhar is now in prison with several cases clamped on him, and the cases against Jignesh too are steadily building up. This will call for answers from the anti-caste movement to the state violence that is bound to be its constant companion.

One of the answers has been Chandrashekhar’s earlier mentioned pronouncement that “lakhs more will rise” to replace him. He is thus telling the casteists and the State that attacks and repression will only inspire many more to join the movement. While not denying the historical truism in his statement, there will yet be the need for more practical and immediate solutions.

The attempts underway to rapidly ramp up the organisational structure of the movement in both Gujarat and UP is one of the answers. The solidification of genuine solidarities and the emergence and spread of similar struggles in other centres could be others.

Challenges from “within”

The other challenge, that is emerging from some members of the oppressed castes, is however more complicated. It lacks the simplicity of direct confrontation that is there in the contradiction with the violent caste oppressor and state repressor.

Over the years there has been an extremely tiny segment of Dalits who have earned places high up in the structures of the state and academia. Ruling politicians, high-ranking officers of the IAS, IPS and other services, and professors inhabiting the upper echelons of elitist academic institutions in India and abroad are typical of those who have been able to occupy seats at centres where opinions, decisions and policies are formulated.

Most of them have the natural aversion to fundamental transformation that is characteristic of people in high places. Though their caste origins compel them to pay lip service to the revolutionary mission of annihilation of caste, they have long abandoned that project. They typically seek to confine themselves to lobbying and adjustments that could strengthen their position without significantly displacing contemporary social structures and power relations.

They thus are among those who feel highly threatened by radical movements which aim to shake up and demolish the existing caste order. In the face of such upsurges they see their role as interveners, who can ensure that things do not go “out of hand”. Though extremely small in number, they, by virtue of their positions of relative power, demand and command considerable influence, within Dalit communities as well as organisations. They use that influence to control and contain the movement within limits that do not threaten the existing order of things.

Stemming radicalisation

Such a role was played by a coterie of Dalit IAS-IPS officers during the #JusticeForRohithVemula movement. They pooled money, expressed support on social media and directly established connections with the students. Their expressed purpose however was clearly expressed as “Ambedkarisation, not radicalisation”. By thus counterposing “Ambedkar” and “radical” they were clear that they wanted to keep #JusticeForRohithVemula well away from Ambedkar’s radical mission of annihilation of caste.

A member of this group is RS Praveen Kumar, an IPS officer who, when asked about the ongoing anti-caste movement, has expressed a desire to play the role of keeping it within constitutional means. His own past however has seen involvement in numerous fake encounters of Naxalites, with scant respect for constitutional guarantees and rule of law.

One explanation of the thinking underlying this is provided by Suryakant Waghmore, a professor at top-rung institutions like Tata Institute of Social Sciences and IIT-Bombay. While analysing the Bhim Army and its “rhetoric of “hitting back”, he propounds that “use of violence undermines the Dalit cause and emancipatory politics”.

In a classic convoluted argument typical of academia, he, while arguing that the Bhim Army should refrain from violence because the law-implementing machinery will target Dalits, in the same breath proposes that the “Dalit response to atrocities is one of legal measures”. This means that he is telling the Dalit victims to go for justice to the same law-implementing machinery that targets them.

Suryakant also bases his argument of non-violence on the premise that the aim of Dalit movements is to mobilise towards civilising the oppressor (caste Hindus). The absurdity of expecting that the Thakurs of Saharanpur would be amenable to being “civilised” by its Dalits is lost on him. Any farcical prescription to embark on a mission to civilise the oppressor has nothing to offer to the Bhim Army or any other movement serious about the annihilation of caste.

As the ongoing anti-caste movement grows in strength, the impact of such arguments on it has so far been minimal. But the leadership would have to be vigilant to guard against the confusion and diversion they have the potential to cause.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/bhim-army-azadi-kooch-dalit-una-naxalites-rohith-vemula-caste-system/story/1/18414.html

Inmate’s torture and murder in Mumbai’s Byculla Women’s Prison exposes horrors

The torture team was only keeping to a standard operating procedure that is commonly followed throughout the country’s prison system.

The recitation in the murder FIR against woman jailor Manisha Pokharkar and women jail constables Bindu Naikade, Waseema Shaikh, Shital Shegaonkar, Surekha Gulve and Aarti Shingne of Mumbai’s Byculla Women’s Prison describes deeds sinisterly similar to the acts attributed to the Nirbhaya killers, who recently had their death sentences confirmed by the Supreme Court.

On June 23, 2017, they mercilessly beat convict warder Manjula Shetye with sticks, all over her body and head. She was stripped naked, then two of the accused, Bindu and Surekha, held her legs apart and Waseema shoved her lathi into Manjula’s private parts.

Jailor Pokharkar and woman police constable Surekha Gulwe taunted her and took turns to assault Shetye. The Nirbhaya Supreme Court judgment’s adjectives – “brutal, barbaric, and demoniacal” – would well apply here too.

Nirbhaya and Byculla – similarities and differences

It is, however, the differences, rather than the similarities, that make the June 23 crime all the more chilling and horrific. The Nirbhaya convicts were all poor slum dwellers, who well knew that the crime they were committing had no social sanction and that they could have the might of the State upon them and likely face its consequences.

The Byculla killers, on the other hand, were middle class employees, who had been tutored and mentored to wear such violent crimes as a badge of honour, who were assured that the whole state machinery would not only protect them from any consequences, but also likely shower them with accolades.

Events so far show that their confidence in the state apparatus has not been misplaced. The office of the topmost prison official of the Mumbai Metropolitan Region – the  Special Inspector General of Police (prisons), southern region – literally overlooks the prison where the crime openly took. The murder took place under its oversight, its cover-up also would.

Beating, stripping and sexual assault

Manjula was brutalised in two installments. First, around 10.30 am, when she was called to Pokharkar’s office regarding her complaint of shortage in the supply of eggs and paav loaves and was viciously beaten and dragged by her hair, with her sari pulled round her neck, back to the barracks. The second round in the afternoon was a lengthy torture session, including stripping, sexual abuse and assault.

Sushma Ramteke, a former Byculla Prison inmate and victim of jailor brutality, recounts how the office, which is at some distance from the barracks, was the jailors’ choice locale for beating recalcitrant prisoners into submission.

While what transpired there will remain disputed, it seems the jail administration felt that a public power display was required to not only cow down Manjula further, but also to terrorise the prisoners who were objecting to the shortages and the corruption it implied.

Standard operating procedure of prison torture

Jails in Maharashtra have an afternoon bandhi lock-up period between noon and 3pm, when all inmates are locked in their cells or barracks. It is at this time the torture team opened the locked barrack where Manjula was lodged and attacked her for the second time.

The torture team was only keeping to a standard operating procedure that is commonly followed throughout the country’s prison system: ensure that all prisoners have been locked in, perform the torture in view of those you want to terrorise, prevent both victim and captive audience from opening their mouths to the outside world.

It was as per this modus operandi that Manjula was tormented for over an hour and then left bruised and bleeding in the midst of the barrack as a lesson for all. Though it must have been amply clear to all the jail staff on duty that Manjula was in dire need of hospitalisation, the rule of silence in the jail torture protocol ensured that even the most sympathetic jail employee would not lift a finger.

A prisoner injured by torture is supposed to be denied medical aid, particularly outside medical help, until the wounds and bruises subside a bit, at least to the level of plausible deniability. If the prisoner dies in the meantime, then no problem – dead men (and women) tell no tales – and there is a highly accommodative and cooperative medical and law enforcement fraternity out there, who are willing to oblige in the cover-up.

Operation Cover-up

This is just what happened on the night of June 23. It was only after the prisoners had been locked up for the night and after Manjula was clearly dead, that the jail medical officer was called to examine her lifeless body.

She was sent to the JJ Hospital, the principal government medical facility in Maharashtra, which is barely a kilometre away from the jail. She was declared brought dead. The first story given out by the jail administration was that Manjula had suffered a heart attack.

The prison medical officer, Dr Khan, is a qualified pediatrician, with around a decade of service at Byculla Prison, as well the much larger Arthur Road Central Prison. He has had a rich experience of examining jail torture victims over the years. There is no way he could have missed the severe bruises on Manjula’s body and scalp and mistakenly thought it to be a case of cardiac arrest.

But there is also no way the heart attack story could have been given by the jail officialdom without the assured connivance of Dr Khan. Thus, the good doctor and the good jail superintendent (Shri Indurkar, a 2016 President’s Meritorious Correctional Service Medal awardee, who was in Pune on the day of the murder) and quite probably the good Special IG Prisons next door (Shri Rajvardhan Sinha, a 2014 President’s Meritorious Police Service Medal awardee) came together to make up a story of heart failure in order to cover-up the murder by jail employees.

The JJ Hospital authorities did not show any signs of contradicting this false heart attack story, nor did the police register any FIR till well after a very public agitation broke out from the prison inmates themselves.

The bruises and bleeding on the body had been disclosed in the police inquest panchnama itself, so there could be no valid reason for the hospital to delay the postmortem for almost 24 hours and for the police to delay the investigation and FIR for a still longer time. The delay can only be explained by an apparent readiness to collaborate in the cover-up conspiracy.

Inmates’ protest brings out the truth

It was only the creative means that the women prison inmates adopted the next morning to publicise the murderous truth that put paid to the criminal collusions of the state organs. The Byculla jail is situated on Clare Road, a busy Mumbai artery, swarming with traffic for over 20 hours in a day.

The next morning, women climbed up on the terrace on one of the barracks that overlooks the road and managed through screams, banging of plates and burning of papers to attract the attention of passers-by and traffic.

Videos of the protest were taken from the road and started appearing in the electronic media. Male police were brought in for lathi-charging and beating the protesters into submission. All this forced the jail, police and hospital authorities to give up their plan of a total cover-up.

Operation Cover-up Plan B

Plan B of Operation Cover-up is now in motion. The Addl DG Prisons announced the suspension of six jail employees for dereliction of duty and ordered an inquiry by the prison department led by DIG Prisons, Swati Sathe. While the macabre irony of referring to rape and murder as “dereliction of duty” was lost on the Addl DG, it was left to DIG Sathe to make clear, by her subsequent statements, that her inquiry was targeted not at tracking and tackling the violence of the murderers, but at nailing and punishing those who had brought these crimes to light.

The JJ Hospital authorities, despite having senior forensic professors available, assigned such a sensitive postmortem case to two trainees and a lecturer, who have not expressed an opinion on the sexual assault and the jail story of heart attack. The police, while being forced to register an FIR for murder, have not applied the sections pertaining to sexual assault and misuse of official position that are apparent from the complaint, nor have they shown any sign of investigating the larger conspiracy of the other staffers and seniors, who have backed the killers and covered up for them.

They even inordinately delayed the arrest of the torture squad by six days, giving them ample opportunity to fabricate a story, while even going missing to seek anticipatory bail. They have also imposed a case of rioting and criminal conspiracy on all 291 women jail inmates.

As it would be absurd to assume that each and every woman inmate, several having infants and children with them, could have conspired and participated in rioting, this move seems more as a move to silence potential witnesses.

The jail administration is also doing its bit by following Saturday’s lathi-charge with further threats of beating, mass punishments and jail transfers. As Operation Cover-up proceeds full steam ahead, the man who must be in the know, Maharashtra CM and home minister Devendra Fadnavis declares benignly, “Whatever the truth is, it will come out soon”.

Policy of condoning and rewarding perpetrators of custodial violence

Thus, despite the best efforts of the women prisoners of Byculla Prison, the likelihood of Justice for Manjula remains a distant dream. Three of the accused – Bindu, Surekha and Waseema – were named in March 2012 in a complaint of assault filed in court by political prisoners Sushma Ramteke, Angela Sontakke and Jyoti Chorge. Surekha and Waseema again figured in an assault on Ramteke and another Bangladeshi pregnant prisoner in November 2013.

After a fact-finding report by the Committee for the Protection of Democratic Rights (CPDR) and a complaint in court, an inquiry was ordered by the court, which remains pending. This “lax” approach of courts possibly encouraged them to new heights of cruelty.

Such condoning of custodial torture and violence however extends right up to the topmost levels of the judicial arm of the state. DIG Swati Sathe herself was indicted by the Bombay High Court for one of the most violent planned attacks on prisoners in Mumbai in recent times, when she was superintendent of the Arthur Road Central Prison in June 2008.

An inquiry into the attack by the principal district and sessions judge, Mumbai, had found that she had used excessive force for extraneous reasons and the high court had ordered criminal proceedings against her. However the Supreme Court, while paying lip service to the bane of custodial excesses, retracted the high court order and left it to the state government to decide whether or not to proceed against Sathe.

This was done by the apex court knowing full well where the State’s sympathies lay. The government had, during the pendency of the appeal against the high court indictment, already rewarded her with one of the earliest promotions of a prison cadre official from superintendent to DIG. With Sathe now in the lead of Operation Cover-up, the likelihood of the Byculla killers being applauded with similar career advances is firmly on the cards.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/variety/custodial-torture-murder-devendra-fadnavis-byculla-womens-prison-manjula-shetye/story/1/18138.html

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 Unlawful Activities Prevention Act has eaten up fundamental rights and freedoms

The repeal of POTA was indeed an eye-wash.

Soon after its adoption, the Constitution of India was amended in 1951. At the time, several progressive judgments (Romesh Thapar versus the State of Madras, 1950; VG Row versus the State of Madras, 1950; and the AK Gopalan case, 1950) by the judiciary held that laws which curb fundamental rights are essentially unconstitutional and fundamental freedoms could only be curbed in the most extreme of cases.

The First Amendment countered this by amending Article 19 to add the word “reasonable” before restrictions and to add “public order” as being one more ground for abridging fundamental rights.

The evolution of the Unlawful Activities (Prevention) Act (UAPA) has to be seen in the background of this gradual but steady constriction of Article 19 which guarantees the fundamental freedoms of expression, assembly, association, etc.

The UAPA, 1967

The next major step in the abridgement of freedom of expression, assembly and association occurred in the shape of the 16th Amendment in 1963. Further “reasonable restrictions in the interest of the sovereignty and integrity of India” were amended to Article 19 (2).

This amendment occurred in the immediate wake of the Indian Army’s defeat in the Sino-Indian War, as well as the threat posed by DMK’s contesting elections in Tamil Nadu with secession from India being part of their manifesto.

It was in this background that UAPA was enacted on December 30, 1967 – to satisfy the need of the Indian State to declare associations that sought secession from India as “unlawful”. In this way, UAPA 1967 gave powers to the central government to impose all-India bans on associations.

The process of banning associations could simply be done by the government announcing them as “unlawful” and hence banned (Section 3). Though the original 1967 Act too had provisions for a tribunal to review or to hear an appeal against the ban, this remained a mere farce as seen in the case of Students Islamic Movement of India (SIMI).

2004 Amendment

In 2004, amid public outcry against the misuse of POTA (Prevention of Terrorism Act), the government repealed the Act but majorly amended the 1967 version of UAPA at the same time. The repeal of POTA was an election promise of the then newly elected Congress government.

The amended UAPA made substantial changes to the definition of “unlawful activity”, included the definition of “terrorist act”, “terrorist organisation” from the repealed POTA, and also introduced the concept of a “terrorist gang”. In fact Chapters IV, V and VI dealing with “punishment for terrorist activities”, “forfeiture of proceeds of terrorism” and “terrorist organisations” respectively, were heavily borrowed from the repealed POTA. The Schedule to the POTA Act of “terrorist organisations” too was incorporated into UAPA verbatim. A sunset clause that was earlier part of so-called anti-terror acts like TADA and POTA was done away with.

Even if one were to buy the “desperate times call for desperate measures” logic, where a restriction to fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA.

In fact, the justification to the inclusion of a sunset clause in previous extra ordinary acts like TADA is that when there is a drop in the perceived threat, there would be no need of the legislation.

2008 and 2012 Amendments

On December 17, 2008, another amendment of the UAPA was moved and adopted following the attack by armed gunmen in Mumbai on November 26, 2008. More provisions similar to POTA and TADA regarding maximum period in police custody, incarceration without charge-sheet and restrictions on bail were incorporated into the UAPA.

The 2012 amendments to the Act further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.

What is a crime and who is a criminal?

Like earlier anti-terror laws such as TADA and POTA, UAPA too, criminalises ideology and association. By virtue of declaring an organisation “unlawful” or/and “terrorist” and banning them, these Acts have de facto criminalised their ideologies.

Hence, mere possession of any literature of such an organisation or even upholding an ideology common to that organisation in the absence of any violent act is construed as an offence. On the other hand, mere membership or association with such an organisation too becomes an offence.

It is by this logic, that very often, organisations advocating the rights of a certain minority community or that of oppressed sections are easily labelled as fronts of a proscribed organisation under the Schedule of the Act. Their activists or members get arrested and remain in prison for years, denied bail.

Repeal of UAPA

If UAPA 1967 made anti-secession law a permanent requirement, UAPA 2004 made anti-terror law permanent. After it effectively substituted POTA in 2004, the UAPA has been used by all law enforcement agencies throughout the country as the foremost anti-terror law. The repeal of POTA was indeed an eye-wash.

(Many states have their own anti-terror laws, such as Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Chhattisgarh Special Public Security Act, 2005 (CSPSA), Jammu and Kashmir Public Safety Act, 1978; Andhra Pradesh Public Security Act, 1992, etc. These local laws are sometimes as draconian if not more, and are used by state prosecution agencies in addition to UAPA.)

In the absence of any sunset clause or provisions for mandatory periodic review, the repeal of UAPA will depend on a mass movement. However, merely mentioning its misuse or low conviction rate may eventually lead to another eyewash, as in 2004.

A movement against UAPA should hence clearly stand for its repeal and that of all other state anti-terror laws with similar provisions.

Draconian provisions of UAPA in a nutshell

– The Act introduces a vague definition of terrorism to encompass a wide range of non-violent political activity including political protest.

– The Act empowers the government to declare an organisation as “terrorist” and ban it. Mere membership of such a proscribed organisation itself becomes a criminal offence.

– The Act allows detention without filing of a charge-sheet for up to 180 days, police custody can be up to 30 days.

– The Act creates a strong presumption against bail and anticipatory bail is out of the question. It creates a presumption of guilt for terrorism offences merely based on the evidence allegedly seized.

– The Act authorises the creation of special courts, with wide discretion to hold in-camera proceedings (closed-door hearings) and uses secret witnesses.

– The Act contains no sunset clause and provisions for mandatory periodic review.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/terrorism-uapa-indian-constitution/story/1/16081.html