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

Letter to Nitish Kumar from Bhagalpur Prison’s death row


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

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

Dear Nitish Kumarji,

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

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

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

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Death sentence for dalits, acquittal for upper castes

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

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

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

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Justice for oppressed castes

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

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

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

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

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

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

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

Krishna Mochi,

Nanhe Lal Mochi,

Bir Kuer Paswan and

Dharmendra Singh

Prisoners on Death Row, Bhagalpur Central Prison, Bihar.

How rise of Hindutva in Bombay led to the making of Yakub Memon


The 1993 Mumbai blast accused was a product of the times he was born and brought up in.

Antonio D’Souza High School, which Yakub Memon attended and Burhani College of Arts and Commerce from which he graduated and completed his MCom degree are less than a mile apart. Both lie on one of the many deadly communal fault lines that fracture and scar the city of Mumbai. The road connecting the two passes past the Byculla police station, one of the more notorious police stations indicted by the Srikrishna Commission for being biased against Muslims and even committing “cold-blooded murder” during the 1992-’93 riots.

Bombay of the 1970s

Communal fracturing, however, seemed a distant nightmare during the 1970s and early ’80s when Memon studied there. (One of us authoring this piece [Vernon], too went through the same courses at the same institutions around the same time] The Partition killings – which had not affected Bombay that severely – were things of the past. Even the Indo-Pak wars of 1965 and 1971 had not managed to affect relations between communities. Secularism seemed to be working.

For the then students of the two institutions – a myriad mix of around fifty percent Muslim, sizeable number of Christians, smaller numbers of Hindus, Parsis and Buddhists and even a Jew or two – communal friction was practically unknown. Across communities, the student body of largely lower middle class and working class upbringing would, while being weighed down by common worries and doubts of an uncertain economic future, seemed nevertheless to feel entitled to a common set of dreams and destinies. Few, if any, feared being discriminated against on grounds of faith. It was the brave new world of post world war cosmopolitan Bombay, where you were inclined to think that opportunity – or the lack of it – was equal and not influenced by religious affiliation.

So when Yakub cleared school with a 70 per cent – pretty high in the days prior to ninety nine percent cut-offs – he could quite easily believe that academic achievement and hard work would be sufficient to raise himself above his father’s status – who housed his large family in a crowded chawl in Muslim dominated Bhendi Bazaar and ran a small workshop at Mustafa Bazaar near Yakub’s school. His later journey through graduation, post graduation and Chartered Accountancy and then on to becoming the affluent ‘Best CA’ of the Memon community has been well-reported.

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Fracturing of a city

Bombay was meanwhile changing. A report of the Mumbai based Committee for the Protection of Democratic Rights on the 1984 riots in nearby Bhiwandi, Thane and several parts of Mumbai details the programmed build up of anti-Muslim propaganda by Vishwa Hindu Parishad, Hindu Mahasabha and a reviving Shiv Sena leading up to the actual attacks of May 1984. These, the first major Hindu-Muslim conflict in Mumbai after 1937, caused fresh divisions on communal lines.

They were further sharpened during the all-India sustained campaign by the BJP from the second half of the ’80s for the construction of a Ram Mandir at the site of the Babri Masjid in Ayodhya. The post-Babri demolition riots of 1992-93 brought the permanent cleavage that ensured that Bombay would never be the same again. The Srikrishna Commission appointed to inquire into the causes of these riots and their link with March 1993 bomb blasts gave findings that it was the propaganda of the Hindu communal organisations and the “commands” of Bal Thackeray that were responsible for the riots and further,that there was a cause-effect relationship between these riots and the blasts that followed.

Over the last 22 years, none of those who conspired, planned and led the riots were even investigated; no one who participated in the attacks has been punished – three were convicted and sentenced to one year’s imprisonment, but immediately got bail during which one expired; and Bal Thackeray, who the Srikrishna Commission identified as the “veteran general” who led the riots, was given a state funeral. On the other hand, in relation to the blasts, hundreds of suspects were investigated, many remained in jail while a fifteen year trial was conducted, a hundred persons were convicted and are serving their sentences and Yakub Memon, who even the prosecution did not claim to be among the chief conspirators, has been executed.

The Yakub we saw in prison

When we, the authors of this piece, met Memon during our stints in the Nagpur Central Prison (Arun, who spent 16 months lodged on the same death row as him, has elsewhere given his impressions of the man), we found it quite impossible to see the person before us in any conscious role in such a major conspiracy as the Bombay blasts. Despite then having been sentenced by the TADA court, with only the Supreme Court appeal to pin his hopes on, he displayed an unbelievably solid faith in the judiciary. His confidence that justice would prevail and he would be saved from the noose was such that he even continued his academic pursuits, picking up two more Master’s degrees in the process. His conviction that he would get justice seemed incredulous to the cynic in us. His belief in the system even extended to his refusal to lend the slightest support to any protest that the likes of us would initiate within the prison. It seemed, to us at least, that it was this tremendous trust in the Indian state apparatus that prompted him to take the step of surrendering to it. One wonders whether and when, if ever, he realised how misplaced that trust had been.

Yakub Memon was thus in a way a product of the times he was born and brought up in – the times of a less communalised, more ecumenical Bombay – which offered better scope for a young Muslim boy to believe. The same can barely be said of today’s Mumbai. The last two decades and more have seen a steady retreat of the secular idea. The governments at both State and Centre are doing all they can to hasten its decline and demise. Hindutva ideology, a fringe phenomenon till the ’70s in Bombay, is now commanding centre stage in Mumbai.

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A hero’s funeral and a community feeling of victimhood

It was Yakub’s last journey that most starkly brought forth the future portents. The fears of the state apparatus were palpable in the police diktats to the media channels and the Memon family to prevent people from being even aware of the details of the burial. Nevertheless thousands managed to assemble for one of the largest Mumbai Muslim funerals in recent times. The reluctant hero Yakub was having heroism thrust upon him, some sections even proclaiming him a Shaheed – a title he could hardly have ever wished to lay claim to.

But we would do well to understand that the pronouncement of him as hero or martyr has less to do with some belief in his valour and more to do with a community’s feeling of victimhood. And victimhood is a dangerous thing – as best encapsulated in our prime minister’s famous declaration that actions are bound to have reactions. The ruling class apprehensions in this regard have been mostopenly articulated in BJP appointed Tripura governer Tathaghat Roy’s tweet, are potential terrorists”. While many may have condemned it as behaviour ill-behooving a governor, the unease the tweet epitomises is understandable. Its only foolhardiness lies in its belief that Intelligence or security agencies can hold down the hurt of millions.