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.

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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)

Why Bombay HC granting bail to Hindu Rashtra Sena men in Mohsin Shaikh murder case is worrisome


The court’s logic for favouring bail in religious hate crimes will help heighten the existing communal bias of state agencies.

Proceedings in Justice Mridula Bhatkar’s courtroom at Bombay High Court are conducted briskly, even brusquely. A speedy pace of case disposal leaves scant cause for complaint due to delay.

However, one of the cases disposed in January 2017 has been the subject of much comment and criticism by the legal fraternity and other sections of civil society. A group of lawyers from Pune has even petitioned the Chief Justice of the court to take suo-moto cognisance and quash the order, which they feel gives sufficient ground for doubting the court’s religious impartiality.

Bail is welcome, but crimes claiming religious provocation cannot be entitled for favoured treatment

The court had granted bail, an act normally worth commending in a country where courts often do not implement the principle of “bail not jail” laid down 40 years ago by the Supreme Court. It was not the fact of grant of bail but the reasoning given by the court that was at issue.

The accused were three persons of the Hindu Rashtra Sena, charged with the murder of a Muslim engineer, Mohsin Shaikh. It was in the nature of a hate crime, with the religion of the deceased being the only reason for his killing. However Justice Bhatkar’s reasoning was that the religious motivation for the crime was a factor in favour of the accused, which entitled them to bail.

To quote the order,

“The applicants/accused otherwise had no other motive such as any personal enmity against the innocent deceased Mohsin. The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicants/accused. Moreover, the applicants/accused do not have criminal record and it appears that in the name of the religion, they were provoked and have committed the murder. Under such circumstances, I allow the Bail Applications.”

The court thus quite clearly seems to lay down that those murder accused who have religious hate motives against the person/s they have killed deserve more favourable consideration than accused having personal enmity motives. It also suggests that being provoked to murder in the name of religion can be claimed as a mitigating factor.

Unconstitutional and perverse reasoning

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The logic of this judgment has come in for all-round criticism, with former Supreme Court Justice PB Sawant even calling it unconstitutional, as it went “against the principles of secularism as well as equality”. He even argued that under such perverse reasoning one would also have to release jihadis accused of murdering people on the ground of religion.

There is however scant possibility of Justice Bhatkar applying her logic of religious provocation in the reverse direction – where the accused is Muslim. She in fact had, during her stint in the Bombay sessions court, faced protests of bias from the Muslim accused in the 2006 train blasts case.

They had even demanded that their case be transferred to another judge as they believed she was influenced by her husband Ramesh Bhatkar, who was purportedly linked to underworld don Chhota Rajan, known for several murders of lawyers and accused in terror cases.

Going by the trend in bail in cases concerning Muslim terror accused, the possibility of the Bhatkar judgment being of use to them to attain liberty is remote. The bias in the criminal justice system against Muslims framed as terrorists has been well documented in books such as Kafkaland and Framed as a Terrorist. The latter is the story of Amir Khan who had to spend 14 years in Tihar jail before being set free.

Jurisprudential opening for hate crime perpetrators to escape punishment

The real danger of this judgment lies in the jurisprudential opening it gives to those in the criminal justice system who are already using all present loopholes to ensure that Hindutva-inspired perpetrators of hate and terror crimes escape punishment.

Maya Kodnani, convicted of mass murder of over 90 Muslims during the Gujarat riots, is roaming free after serving less than two years of a 28-year sentence; her co-accused Babu Bajrangi has, in the space of just four years of his sentence, been released on temporary bail 14 times for periods extending from seven days to three months.

During the weeks after the Bhatkar judgment, the Bombay High Court was witness to repeated attempts by the NIA (National Investigation Agency) to facilitate bail for terror accused Sadhvi Pragya. The agency first gave a “no objection” to her bail plea and then dubiously claimed ignorance regarding crucial evidence against the accused.

They are only continuing along a path made clear when they moved to shunt out special public prosecutor Rohini Salian from this case, when she refused to play ball with their plan to go soft on the terror accused.

The NIA policy of softness towards such accused has already notched up its first “victory” on February 1, 2017, with the complete acquittal of Sadhvi Pragya and all her co-accused in a murder case in Dewas, Madhya Pradesh.

The NIA blatantly contradicted the earlier police evidence that implicated the Sadhvi and her group. “The contradictory evidences by the police and NIA in the case raised serious doubts in the whole case,” is what the additional sessions judge observed, leaving him no option but to acquit the accused.

Deeper malaise of religious bias of the Indian state

As has been pointed out earlier in these columns, these moves are emblematic of a deeper malaise of the religious bias of the Indian state. Thus far many judges, at both the lower and higher levels, have refused to cooperate with the designs of the investigative and prosecuting agencies. The Bhatkar judgment provides just the judicial opportunity that such agencies have been waiting for.

Faizan Mustafa, vice chancellor NALSAR University of Law, Hyderabad, has, while drawing attention to the shocking and dangerous way in which the order rewrites the jurisprudence of provocation, naively suggested that it be used to rewrite “our law on bail… to make bail a rule, jail an exception”.

But the harsh reality of long years of bail resistance of the courts, despite extreme overcrowding of jails with undertrials, does not indicate a possibility of liberal change anytime soon.

Rather, there is a distinct possibility of other courts selectively advancing along the jurisprudential direction indicated by Bhatkar, to provide succour to those involved in similarly inspired hate and terror attacks. The devilish consequences for our society and polity can well be imagined.

Justice Bhatkar is a published poet. Her collection of poems Kavita Manatlya- Kavita Courtatlya (poems from heart, poems from the court) was released last year. One of her “poems from the court” is Nirnay (ruling).

In it she asks,Tula maahit aahe ka?/Nikaal zari tujha asla tari nirnay maajha asto/Krus zari tujha asla/tari khaanda maajha asto (Do you know? The decision may affect you, but it’s always “my” ruling/The cross may be yours to bear/ But the shoulder’s always mine.)

It will need more than strong shoulders to bear the cross of this ruling.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/mridula-bhatkar-judgment-hindu-rashtra-sena-mohsin-shaikh-maya-kodnani-nia-jihadis/story/1/15465.html

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.

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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

What India’s TV wars with Pakistan don’t tell us about our wars without witness


Thousands have died in internal battles waged against its own people in Kashmir, Chhattisgarh and the Northeast.

 There are wars and there are the TV wars and it is the second variety that has been raging over the last few weeks in the media studios throughout the land. The September 18 attack on Uri Army headquarters provided the trigger for TV anchors, ruling politicians and sundry other warmongers itching to declare war on Pakistan.

The luminaries of the political and defence establishment, who, despite Pathankot, had ignored security and were guilty of facilitating 19 soldiers’ deaths by the gross negligence of lodging them in inflammable tents, escaped all scrutiny. All lapses were well hidden behind a smokescreen of war clouds of their own making.

The shrillness of the war cries yet shows no signs of abating. A variety of war games are being played out on prime time. Many media outlets had, even before the announcement by the Indian Army of surgical strikes, already invented and announced surgical strikes of their own.

As the media sets up televised war rooms complete with maps and digital models, every actual, notional or imagined step of the armed forces is being chalked out and projected – more surgical strikes, Indian fidayeen units, hot pursuit, and implementation of doctrines  of cold start, and even limited nuclear war. The “war” with Pakistan is being fought out in full media glare even before it actually begins.

A make-believe war

An actual war with Pakistan is yet a remote possibility. Military confrontations in these times are usually proxy wars, with one or the other big power backing each of the sides. Both India and Pakistan being well within the same American camp, the likelihood of the US consenting to declarations of war on each other is extremely low. Meanwhile, major military moves contrary to Washington’s wishes are not options either country’s ruling class is willing to contemplate.

But a make-believe war too has its fair share of backers. The party in power can reap a rich harvest of votes; a jingoistic anchor and his channel can rake in the TRPs; a corporate house entering armaments can speed up the contracts.

So, war or no war, the business of warmongering will carry on. Under the camera glare, politicians will thump their chests and anchors will shout themselves hoarse, creating choruses from all corners.

Real and lethal internal wars

But TV wars are not the only type of wars. There are some very real and very lethal wars being waged by the Indian state in various parts of the country. Some of them have been on for decades with death counts far surpassing anything on the Line of Control (LoC). The news of these, however, rarely makes it to the newspaper headlines or prime time TV.

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In just the last three months of protests in Kashmir, the casualty count has been 92 dead and over 12,000 injured.

One such war is the one waged against the almost three-decade-long mass insurgency for self-determination in Jammu and Kashmir, which has caused a death toll between 44,000 and 1,10,000 as per various estimates.

In just the last three months of mass protests against the killing of Hizbul Mujahideen commander, Burhan Wani, the casualty count has been 92 dead and over 12,000 injured, including 1,000 blinded in firing and shot-gun pellet attacks by security forces. These figures far outstrip the numbers of Indian citizens killed and injured in all the external conflicts waged by India since 1947.

Another conflict is the five-decade-old attempt by the Indian state to wipe out the Naxalite movement. The toll here too runs to several thousand. While the estimates for earlier years are disputed, government figures for the last 20 years run to around 14,000.

In the last seven months, Chhattisgarh’s Bastar region alone has seen more than a 100 adivasis killed in encounters shown by civil rights groups to be fake.

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Jammu and Kashmir figures in the Guinness Book of World Records as the world’s most militarised zone.

Jammu and Kashmir figures in the Guinness Book of World Records as the world’s most militarised zone. It has seven lakh military and paramilitary personnel in comparison to a population of only 125 lakh giving a soldier-people ratio of 1:18. A similar situation exists in the Bastar division of Chhattisgarh, which has one lakh paramilitary forces for a population of 31 lakh, that is, a soldier-people ratio of 1:31.

A report submitted to the United Nations by the Working Group on Human Rights in India points to similar intensified militarisation in the northeastern states. It has been a conflict zone right since 1947, with many groups fighting for self-determination. Government statistics admit to 21,400 fatalities from these conflicts in the last 25 years.

Wars without witness

As the body counts in such war zones grow grimmer, information flows from these parts get scantier. In fact, there has been a concerted attempt by the state and mainstream media to ensure that news and views on these wars remain highly restricted and are even fabricated.

The recent resignation by Naseer Ahmed, a senior Kashmir journalist with the Ambani-owned TV channel IBN7 brought to light the role of the Delhi-based media centres in fabricating news reports as per state directives and preventing factual reporting of the killings and unrest.

Raids on Kashmiri newspaper offices, Facebook censorship and a ban on the Kashmir Reader newspaper were some of the methods used to curb the local media. Well-known human rights activist Khurram Parvez was first prevented from traveling to Geneva to attend a session of the UN Human Rights Council and then was placed under arrest.

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The wars that the state wages on its own people are kept far away from the media glare.

In Bastar, the tool of arrest has been used rampantly by the state against journalists who refuse to toe the police line. The last year has seen at least four journalists being forced to spend months in jail on cooked-up charges. One of them is yet behind bars.

On October 15, two Mumbai-based writers were picked up from a Bastar jail merely for attempting to meet a woman Maoist prisoner with the jail superintendent’s permission. Lawyers and rights activists too have been systematically hounded and even evicted from the area. Amnesty International India has documented what it calls a near-total information blackout in the state in a report titled “Blackout in Bastar: Human Rights Defenders Under Threat”.

Thus, unlike the jingoistic TV wars with Pakistan, which the ruling classes relish and revel in, the wars that the state wages on its own people are kept far away from the media glare.

These are the wars which lay bare the lie of the democratic credentials of the Indian state. The dark designs of these wars must therefore be planned in secret. Their brutal consequences must be blacked out.

They must be wars without witness.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/india-pakistan-war-tv-media-kashmir-burhan-wani-chhattisgarh-bastar-naxals-fake-encounters-surgical-strikes/story/1/13452.html

Sexual violence by armed forces rising, and Modi wants to celebrate Women’s Day?


The more immediate and ongoing tragedy is occurring in Chhattisgarh’s Bastar district.

The yearly sarkari tokenism around International Women’s Day reached a new low with Prime Minister Narendra Modi’s proposal that this year “only women parliamentarians should speak in Parliament on March 8”.

The stark emptiness of the proposal was provided by the context across the country, where attacks on women and the suppression of their voices have seen no let up and there have hardly been any real steps to remedy the situation.

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The harsh irony is most sharply evident in the conflict zones of the country, where it is the government’s forces themselves which have been accused of the worst type of atrocities against women.

Around the time the prime minister was making his suggestion for Women’s Day celebrations, the Kashmir Valley was resounding with protests marking 25 years of awaiting justice for the victims of the Kunan-Poshpora rapes of February 23, 1991. The case against Rajputana Rifles personnel lies pending before the Supreme Court. Manipur’s 12-year-old Manorama rape and murder case against Assam Rifles personnel similarly remains pending before the courts.

Sharp spurt in sexual assaults by police

The more immediate and ongoing tragedy is occurring, however, in Chhattisgarh’s Bastar district. There, the paramilitary forces, police and state-sponsored vigilante gangs have over the last few months been on a continuous campaign of loot, sexual molestation and rape.

After a fact-finding visit to the area, Nandini Sundar, professor of Sociology at the Delhi University reports: “Between October 19-24, 2015, 40 women of Peddagelur, Budgicheru and Gundam villages were sexually assaulted, beaten, and stripped by the security forces; two women were gang raped. On January 12, six women from Kunna village in Sukma district were sexually assaulted and between January 11 and 14, 13 women were gangraped in Belam-Nendra village in Bijapur district. In all these cases, the rapes were accompanied by extreme physical and verbal abuse, and the looting of their homes.”

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Violence on women and other human rights violations in Bastar by the security forces most often remain unrecorded and unnoticed by the outside world. This time, however, it was somewhat different.

Over the past three years, first with the moving in of three women lawyers of the Jagdalpur Legal Aid Group (JagLAG) in 2013 and later with the release and return of adivasi political prisoner and activist, Soni Sori in 2014, the villagers of Bastar have been better able to organise themselves to try and reclaim their legal rights and even to protest atrocities through mass mobilisation, often directed at forcing the police to register crimes in this regard.

In 2015, the noted scholar Bela Bhatia and Scroll.in journalist Malini Subramaniam also moved to Bastar. They, too, played a significant role in taking the stories of blatant law violations and repression and torture of the local population to the outside world.

A repressive police machinery is always allergic to the truth. Soni Sori’s leadership through padayatras and demonstrations, JagLAG reports of false implication and incarcerations of hundreds of innocent tribals, Bela Bhatia’s push for registration of FIRs against rapist cops and Malini Subramaniam’s posts on forced surrenders and numerous other unlawful practices all posed a threat to the unquestioned criminal acts of the law machinery.

Forced eviction of activists, lawyers and journalists

At first, indirect threats to fall in line and not oppose the police were given. When these did not have effect, the next step was to apply the brand of Naxal or Maoist on the local population and launch open campaigns against them. Bar Associations under BJP leadership passed resolutions against the lawyers as outsiders and tried to prevent them from practising in the courts.

Organisations propped up by the police with names like Samajik Ekta Manch, Nagrik Ekta Manch, Vikas Sangharsh Samiti, started demonstrating and issuing threats and even resorted to acts of violence like stone-throwing on Malini’s house and car.

The next step was outright eviction. Landlords of the places where the JagLAG lawyers, and where Malini were staying were called to the police station and forced to serve notice on their tenants. They were thus forced to pack up and leave. Soni Sori was told that she did not have proper title to the house she was staying at.

When she did not back down, she was attacked and had some chemical substance applied to her face. With continuing threats to her life, she had to be taken outside Bastar for treatment.

The police under the leadership of Bastar region inspector general, SRP Kalluri, has announced Mission 2016 during which he promises to crush Naxalism in Bastar. This has seen a rapid rise in forced surrenders and false encounters, besides rapes and molestation of women.

Whole villages are being forced out with all young men being detained and tortured in police camps until they agree to fake surrenders. As pointed out earlier in these columns, the stage has already been set for aerial attacks, which could result in even thousands of deaths of Indian citizens.

As Mizoram this week commemorates the 50th anniversary of the bombing of Aizawl – the last time that the Indian Air Force (IAF) was used to attack the people within the country’s borders – it seems that similar operations may form part of Kalluri’s Mission 2016.

When Sri Lanka had launched a similar assault in Mullaitivu in the last phase of its war on the Tamil Tigers, it had been called a “war without witnesses”. Sri Lanka had first ensured that all journalists, human rights activists and observers were thrown out of the area. The similarities in the recent evictions from Bastar carry grim portents.

Bastar’s mothers and daughters in danger

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As the dirty war deepens, women will likely face the major brunt. The record of the past few months shows that governments that thrive on slogans of “Bharat Mata ki Jai” have had no compunction in plotting and perpetrating sexual assaults and violations of the matas and daughters of Bastar. As the days grow darker the need to bear witness to the darkness and stand in opposition will be felt all the more. It is in this context that the absence of the activists recently ejected will be felt all the more.

The evicted activists have, however, vowed not to give up. The JagLAG members, in an interview, have said that though they have now been forced out of Bastar, they want to go back. Though severely scarred by the chemical attack, Soni Sori has declared that she will not bow down.

On the eve of International Women’s Day, she is even scheduled to address the students of JNU, some of who may well be inspired to rise in her support. The state, by clamping down, may actually be giving birth to new forces in opposition to it.

by Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/womens-day-bastar-narendra-modi-chhattisgarh-naxalism-maoism-soni-sori-jaglag-rape/story/1/9423.html

Pardon Headley, punish Kanhaiya: How RSS plays nationalism game


Kowtowing to USA plus jingoism towards neighbours plus branding all internal dissent as anti-national equals to Parivar patriotism.

The Rashtriya Swayamsevak Sangh (RSS) mouthpiece Organiser‘s last issue has its editorial and another separate story on David Coleman Headley’s depositions at the second 26/11 trial before the Mumbai Sessions Court. It lists the admissions of Headley about the reconnaissance he did and numerous plans he conceived for terror attacks in India and other countries. It points to his claims to being within the top coterie of Lashkar-e-Taiba (LeT) providing advice and suggestions andtalks of his links with senior officers of Pakistan’s ISI.

The article also refers to Headley being a “double agent for American spy agency CIA”.  Thus the Organiser points to the many things that make Headley the top-most terrorist to have appeared before an Indian court in recent times.

One would have expected these self-proclaimed nationalists to launch a frontal attack on this terrorist and the American state. [Not only did the Americans not share such intelligence, which could have prevented the Mumbai attacks, but they also entered into a deal with Headley to ensure that he is not handed over to face justice in India].

No not a whisper against the Americans. They raise a point about the exposure of Pakistan as the fountainhead of terrorism. But the main focus of the RSS attack is directed within the country. They hit out at pseudo-seculars, i.e., all Indian citizens who disagree with their viewpoint.

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They cling on to the statements of this double agent and self-confessed top terrorist, as if Headley is the latest poster boy of their brand of Hindutva nationalism. Headley did not even mention Ishrat Jahan’s name until prosecutor Ujwal Nikam suggested it to him through multiple-choice questions. But Organiser uses it to hit out at those who, in 2004, had opposed her murder by the Gujarat police in a fake encounter. Obviously, even if Ishrat had been a member of the LeT, it would not make any difference to the crime by the Gujarat Police.

But such rationale is lost on the RSS, which goes to any lengths to twist things to fit their logic. Thus, they drag in the issue of the JNU programme against the hanging of Afzal Guru and say that tomorrow these JNUites may even stand by Headley. This absurd argument ignores the fact that it is they who are standing by Headley and his every word, and it is their government that asked the court to pardon him.

There is no equivalence whatsoever between an Afzal, who maintained his innocence right upto the gallows, and a Headley, who proudly proclaims his terror record and earns a complete pardon from the Indian state.

‘Nationalist’ doublespeak and doublethink

But doublespeak to induce doublethink is second nature for the Sangh Parivar. During the Independence movement, RSS nationalism kept away from any anti-British activity. Today, their nationalism prevents them from questioning the American superpower. Their nationalism concentrates on war-mongering against neighbours, attacks on religious minorities and on all ideologies opposed to their Hindutva thinking.

RSS is bent on crushing all forms of dissent. For their cadre and sympathisers, brought up to doublethink in true Orwellian fashion: continuous war on internal “threats” is peace, freedom means slavery to all big powers and ignorance of anything other than what is preached by the Pariwar is their strength.

It is this brand of nationalism that is trying to crush the anti-nationalismof dissent by the students and youth across the country. Using the strong arm of the state machinery, this government has applied the brand of “anti-national” to members of some of the best universities in the country – from Film and Television Institute of India (FTII) to IIT-Madras, from Hyderabad Central University (HCU) to Jawaharlal Nehru University (JNU) to Jadavpur University (JU).

Rohith Vemula was branded anti-national and punished for being a Dalit who exposed the Parivar’s role in organising the Muzaffarnagar riots and for his opposition to the hanging of Yakub Memon. Umar Khalid is being branded anti-national and punished for being born a Muslim and for daring to oppose the hanging of Afzal Guru and Maqbool Bhat. Kanhaiya is anti-national and put behind bars merely for standing in defence of the right to free expression.

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There is however a method in the madness. In line with Samuel Johnson’s dictum that “patriotism is the last refuge of the scoundrel”, the present government is increasingly resorting to the nationalism mantra to save itself from the mess it is in. The achhe din promise has rapidly failed on all counts. Sensex and rupee are at pre-May 2014 lows, inflation is out of control despite low international oil prices and unemployment has been on the rise with no new employment generation despite the hype of Make in India.

Voter disillusionment seen in the loss of Delhi and Bihar has bitterly shaken the ruling party. The Sangh attempts to control and saffronise the universities has met with stiff resistance from the students and there has been a massive upsurge of the student movement culminating in the countrywide movement for #JusticeForRohith. It was therefore only to be expected that the Modi government would evolve some very devious tactics to divert, divide and crush the opposition against it.

An elaborate fascist conspiracy

An elaborate plan was drawn up on classic fascist lines with the launchpad being a strike upon JNU, which has been in the forefront of the students’ battles. Ironically and with typical fascist hypocrisy, the programme selected to start the attack was on the issue of opposition to Afzal Guru’s hanging – an issue regularly raised by the Peoples’ Democratic Party, under whose leadership the BJP has been in government in Kashmir.

Pressure was brought on the JNU administration to withdraw permission to the programme, it was attacked while videos were taken by crony media, doctored videoswere deployed by immoral anchors to create a frenzy of nationalistic fervour against the students, lawyers and other goons were massed at the university gates and court rooms to physically assault students, faculty, journalists and anyone remotely suspected of being in any way linked to or supportive of JNU and all this was done with total connivance of the police machinery.

In typical fascist fashion, those bombarding the “anti-national” students’ questioning of the Supreme Court’s decision on Afzal Guru were the same “nationalists” who used the terrorist Headley’s word to counter Supreme Court and high court decisions on Ishrat Jahan.

The attack has been well met by a variety of progressive forces, particularly the students and faculty of JNU and other universities in the country and abroad. The #JusticeForRohith movement too continues with a broader canvas of a campaign for social justice in universities and all spheres in society.

Meanwhile, while nationalistic lawyers were on the rampage in the Delhi courts, the focus shifted away from another lawyer, Ujwal Nikam who quietly closed his examination of witness, David Headley. After five full days of questioning, the witness had not been asked, nor had himself volunteered a word about the only accused in the trial, Zabiuddin Ansari.

Headley obviously knew nothing about the accused and had nothing to do with the trial. Headley had been summoned merely to be given a pardon so that he may spout things which could be used against any opponents of the regime, while protecting his American handlers. But this is the way of nationalism, the way of fascism.

by Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/pardon-for-david-headley-and-punishment-for-rohit-kanhaiya-umar-are-two-sides-of-the-nationalism-coin/story/1/9172.html

Pardon to David Headley in 26/11 trial is travesty of justice


Fahim Ansari was tried for same acts for which the US citizen was let off.

Fahim Ansari – accused No 2 after Ajmal Kasab in the 26/11 Mumbai attacks trial – is one of those quiet, gentle types. The several interactions that one of the authors of this piece (Vernon) had with him in the Anda Circle of Mumbai’s Arthur Road Central Prison left the impression of a person polite to a fault, who rarely, if ever, lost his temper. It would not however be surprising if even the serene Fahim were to fume with fury at the proceedings in the Mumbai courtroom of Additional Sessions Judge GA Sanap on December 10, 2015.

December 10, 2015 was when the court pardoned US citizen David Coleman Headley in the same case and guaranteed him protection from punishment for the very same charges for which Fahim had earlier been indicted. Headley has admitted, among other things, to performing the same role of reconnaissance for which the same prosecution had implicated Fahim. But the Special Public Prosecutor, Ujwal Nikam was proudly proclaiming in the Court, “Now David is my witness also.” This was the Nikam who had, despite Fahim’s acquittal in the Sessions Court, gone right up to the Supreme Court trying to fix his conviction and death sentence. Now the very same Nikam had no qualms in claiming that another man had actually done the crime and that he should be pardoned – because this other man was “his” witness.

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Pardon-plea or Plea-bargain?

The dealings in the courtroom were businesslike and lacked any notions of mercy or magnanimity that one would associate with a plea for pardon. It sounded more as if Headley was negotiating an agreement rather than praying for indulgence. His statement through video conferencing from the US was short, ending with a curt, “I appeared here ready to answer questions regarding these events if I receive a pardon from this court. That’s it. Thank you.” A veteran of several plea-bargains, Headley has, in America, got out of two earlier drug charges and clinched a leniency deal with the US government to save him from a death sentence and extradition to India to face trial for his role in the 26/11 attacks. On December 10 he knew that Indian courts have no control at all over him and any pretence to place conditions on him was just a farce.

One of the conditions required for pardon under Section 306 of the Code of Criminal Procedure is that the person being tendered pardon “be detained in custody until the termination of the trial”. In Headley’s case he has been tendered pardon without being even arrested or detained by the Indian police. The other more important condition is that he should make “a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.” That this condition, which Sanap explained in some detail to Headley, will see breach rather than compliance goes without saying.

No ‘full disclosure’

It is widely known and even documented that David Headley, born of a Pakistani father, was a double agent for America’s Central Intelligence Agency (CIA) who, while working with Pakistan’s Inter Services Intelligence (ISI) and the Lashkar-e-Toiba, had shared information with US agencies about impending Mumbai attack targets. The US therefore has no interest whatsoever in Headley making any “full disclosure” before an Indian court. As long as he remains in US custody, these agencies will ensure that disclosures will be restricted and refurbished according to American interests. What then is the national interest in the Indian state granting pardon to a Pak-American ISI/CIA agent, who has succeeded in causing deadly damage on Indian soil?

The fatuous argument that Headley’s evidence would bring out the truth behind 26/11 hardly warrants serious consideration. That leaves us the prosecution objective of using Headley to strengthen the case against Indian national Zabiuddin Ansari, who is currently facing trial. The evidence of a double agent should by definition be dubious. When such proof is being proffered over video-conferencing from a place out of your courts’ control, the insincerity of the exercise is palpable. Should the state go to such loutish lengths to somehow nail an Indian citizen in the conspiracy, while absolving the Americans of all responsibility?

Prosecution pursued Fahim despite knowledge of Headley’s guilt

As another Ansari goes to trial, one cannot help but recall Fahim Ansari’s anxieties and anticipation during the first 26/11 trial in 2009-10. First the dismay at the fabrication of falsehoods in the charge-sheet; then the elation at the exposure in court by Adv Shahid Azmi, his defence lawyer, of the patently fabricated nature of the maps, which Fahim had been tortured and forced to draw while in police custody. The elation then was also moderated by the realisation that it would be extremely unrealistic to expect a Sessions Judge to go only by the evidence and not succumb to state, media and public pressure. A discussion that particularly comes to mind took place on February 11, 2010, when Fahim related how he sensed a more sympathetic shift in the Judge’s attitude after news reports that Headley had been indicted in December 2009 in an American court. But that was also the day that Shahid Azmi was shot dead and there was again the worry whether another lawyer would be able to put up as good a defence.

Fahim finally came to be acquitted of all charges by the Sessions Court on May 3, 2010 with the judgment (particularly at paras 1248 to 1251) pointing out in detail the doubtful nature of the prosecution evidence against him. The prosecution, despite being well aware that it was not Fahim but Headley who had done the recce, continued to appeal in the High Court and Supreme Court against the acquittal. But the Supreme Court judgment (at para 595) too found the evidence of the prosecution’s star witness against Fahim to be “completely unacceptable”.

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Zabiuddin, however, is likely to meet a different fate. The fact that the state is seizing on suspect sources such as double agent Headley to prop up its case obviously means that the evidence they claim to have against him is at best flimsy. But it is also a pointer to the extent to which it is ready to go to fabricate falsehoods to prove a point convenient to its narrative. And this time Adv Shahid Azmi will not be around.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/pardon-to-david-headley-in-26-11-trial-is-travesty-of-justice/story/1/8303.html