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

How Unlawful Activities Prevention Act has eaten up fundamental rights and freedoms


The repeal of POTA was indeed an eye-wash.

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

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

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

The UAPA, 1967

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

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

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

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

2004 Amendment

In 2004, amid public outcry against the misuse of POTA (Prevention of Terrorism Act), the government repealed the Act but majorly amended the 1967 version of UAPA at the same time.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

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

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

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

2008 and 2012 Amendments

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

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

What is a crime and who is a criminal?

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

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

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

Repeal of UAPA

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

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

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

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

Draconian provisions of UAPA in a nutshell

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

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

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

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

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

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

By Arun Ferreira and Vernon Gonsalves

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

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

How Salwa Judum is making a comeback in Chhattisgarh


ColoursOfTheCage tries to visualise how a conversation between Chhavendra Karma and an agent representing the corporations must have arrived at this plan of action.

The Salwa Judum launched in 2005 in the Bastar region of Chhattisgarh has gone down as one of the most notorious counter-insurgency campaigns of post-1947 India. The governments of state and Centre joined together to arm an unlawful mercenary force of landlords and their henchmen that terrorised the local tribal population who supported the Maoist movement. Villages were burnt down, hundreds were murdered and raped, and 3,50,000 were forced out of their homes, and it was only in 2011 that the Supreme Court declared that the Salwa Judum was unlawful and that the state support for it was unconstitutional. Its main leader, the landlord politician, Mahendra Karma, was himself killed by the Maoists in 2013.

Now two years later, his son, Chhavendra, has created a furore and a new wave of fear in the area by announcing that he intends to launch part two of the Salwa Judum. Many are asking the question: why does Chhavendra Karma want to now relaunch something which has not only failed miserably but has also been prohibited. StoriesUnscene decided to go behind the rhetoric of Salwa Judum 2.0 to find out the motivation and support behind it and the corporate forces that mainly stand to gain from a new reign of terror. We try to visualise how a conversation between Karma and an agent representing the corporations must have arrived at this plan of action.

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Corporate agent: Namaste Shri Karma! How do you keep busy these days?

Chhavendra Karma: What to tell you Shethji. Forget about me, I’m worried about my boys. After the collapse of Salwa Judum, nobody is giving any funds and all my boys are deserting me. If this goes on for long I won’t have any body left.

Agent: That’s not good. There’s lots of work to be done. And lots of money to be earned. So many big companies are ready to spend thousands of crores – just two projects are worth 24,000 crores. They know they can make hundred times more in profit.

Karma: But we don’t see any of it. Nothing reaches us. Don’t you want the locals to develop.

Agent: Of course, of course! You local landlord guys should do well. You are our main support and we will definitely give you something. But the big bosses want results. The land has got to be cleared no. if your villagers are allowed to stand in the way how can we get profits?

Karma: They think their whole livelihood will be destroyed.

Agent: See Karmaji, both you and I know that there cannot be development without pain. Someone has to suffer. No construction without destruction. Vikas requires Vinash. Destruction of hundreds of villages and lives of lakhs of villagers may take place, but think of how many billion dollars of construction will take place. Tata, Essar, Jindal, Mittal, all ready to put money – even big American capitalists like Texas Pacific Group. If people like you handle things properly, your earnings will be in hundreds of crores. But the villagers shouldn’t be selfish and stop development. They should quietly leave.

Karma: You know they won’t leave quietly.

Agent: That we know. They are even forming their own government. But our government is making arrangements. Number of para military is being increased. Big part of Abhujmaad is being handed over to the military. If people start opposing the military, then the air force will have to help them. Drones are anyway there. All means will be used. No one should be allowed to stand in the way of development after all. Do you know how the USA became the most developed country? They did not allow some few lakh tribals to stop them.

Karma: My father was all for development. I am all for development. I know our adivasis – they won’t cooperate and sacrifice quietly for development – we will have to force them out like my father did in the Salwa Judum. My father worked at a different level and achieved much more than the para-militaries.

Agent: Why do you think I came to you? Your father’s work must go ahead.

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Karma: Aah, but that Supreme Court will also create trouble.

Agent: That too can be seen too. Last time we made a mistake and didn’t give that enough importance. This time we’ll see that all that is arranged. Companies will even be ready to put some crores to buy the cleverest lawyers.

Karma: But do you think these parties have guts to fight in the open. Even Congress, my own party may not support me. And who can trust the BJP!

Agent: Parties no need to worry. My bosses will see to that.

Karma: This will all cost money. My boys like to enjoy …and they need modern arms and equipment.

Agent: That is our responsibility. It is called CSR – corporate social responsibility. We are all for the development of you and your boys. In fact you should give up the old ‘Salwa Judum’ name. I think it has got something to do with hunting, which is quite primitive. Let us be modern and give a name with ‘Development’ in it. Then our companies can even directly give you hundreds of crores from our CSR funds. Your ‘Development’ is the social responsibility of our big corporations.

Karma: (eyes lighting up) I will be responsible for proper usage of the funds. We will see that all the iron ore hills from Raoghat onwards are cleared of all villages. Along with the Bastar region we will also develop Rajnandgaon and Gadchiroli. And this time we will see that everyone sacrifices for the sake of development. We will call ourselves Vikas Sangharsh Samithi. We will do the Vinash necessary to attain Vikas.

(And this is how the idea of Salwa Judum 2.0 was conceived.)

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/salwa-judum-bastar-chhattisgarh-mahendra-karma-chhavendra-maoist-supreme-court/story/1/4233.html

The relevance of Kawasi Hidme’s unheard story


Sushmita

Being an adivasi, a woman and being born in a region desired by greedy multi national companies does not serve one well. That is the story of Hidme and many more like her in the regions of Bastar, Chattisgarh. Kawasi Hidme was a young girl, full of energy from Borguda village in Sukma, Bastar region. She helped her widowed aunt till a small piece of land. The rice grown was just enough for them and Hidme would, during the season, sell Mahua in the local market. Like every girl of her age, she would be excited about the occasional fairs from where she can buy colourful bangles and other items which were otherwise not available in the local market.

In January 2008 just after harvest, as in previous years, a fair was organised in Ramram, the nearby village. Kawasi accompanied her aunt and her other cousin sisters to the fair and to buy ribbons andchoodis. There she joined a group of other tribals who were dancing and singing. Having danced vigorously, she soon became thirsty and approached the nearby hand-pump for water. But as soon as she held the pump, someone very forcefully grabbed her. She looked up angrily and was shocked to see Police personnel. They had surrounded her and began dragging her by her hair towards their vehicle parked outside the fair. With hands and feet tied, she was thrown on the floor of the truck and driven to the Police station.A

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Art : Sushmita

This was just the beginning- the start of the atrocities that were to be perpetrated on Kawasi Hidme for the subsequent seven years or so. As the staff at one police station would satisfy themselves, she would be sent to another. Repeated torture resulted in a death like situation for her. The policemen however, got apprehensive that she might die in the station itself. That would be a major problem. Her detention had to be formalised and she had to be sent to prison. This was not something uncommon for this area- adivasi girls like Hidme were detained and tortured for months on end and would ultimately be falsely charged under draconian laws such as the Chattisgarh Public Security Act, UAPA, etc.

However before sending her to the prison, the formality of producing her before the court remained. Kawasi’s condition was such that she had to be admitted to the hospital. It was only after a few days that she was produced before the local Magistrate. The Police had conveniently accused her of an offence that related to the murder of 23 CRPF personnel and the Magistrate remanded her to the Jagdalpur prison. On reaching the prison, the excessive physical and possibly sexual torture ultimately paid its toll and her body suddenly ejected her uterus. She bled profously. Horribly scared, she somehow attempted and suceeded in putting her flesh back into her body.

Till then, she couldn’t share her experience with anyone, but now in prison she would be comfortable to talk to the other Gondi speaking women inmates. The next day as her uterus was again thrown out of her body, Kawasi decided to cut it off. She asked an inmate for a blade and when all the girls had gone out of the barrack, she sought to operate herself so as to end the pain. As she was about to act, a girl entered the barrack and screamed on seeing the bleeding Hidme. The other women inmates gathered. The blade was taken away from her and the jailor was called, who sent her to the city civil hospital for treatment. After a surgical operation at the hospital she was brought back into jail.

In court, the fabricated case against Kawasi was not progressing. The Police had mentioned two women and two policemen as witnesses. The two women never came to depose before the court and the two policemen denied having any information about her involvement. The evidence put up was itself suspicious at face value. The offence in which Kawasi was alleged to be involved, took place on the 9th September 2007. Statements of police personnels (with ‘remarkable memories’) were recorded on 5thDecember 2007, mentioning names of around 50 Naxalites supposedly calling out to each other. This list did not contain Kawasi Hidme’s name. However after 15th December 2007 when the police personnels added a few more names, her name suddenly appeared in newly recorded statements. And finally in court they denied her involvemnet.

Soni Sori, an adivasi teacher, was also in prison during this period and could interact with Kawasi. Soni Sori had undergone a similar treatment in police custody. She was administered electric shocks and stones were inserted in her private parts. After her release Soni Sori had informed human rights activists about Hidme’s condition who in turn, with sympathetic lawyers, started raising their voices for Kawasi. One such lawyer argued before the Court that as all the witnesses were complete, orders to release Hidme should be given. The judge replied that since she had already spent seven years in jail, there should not be a problem in spending a couple of months more! So Hidme stayed incarcerated for many more subsequent months. Finally in late March 2015, as none of the charges against her could be proved the Court ordered her release.

On the date of her release, Soni Sori and her nephew, Linga Kodopi went to receive her from Jagdalpur jail. When Linga took her back to her village, her friends failed to identify her and as she called out to each one of them, they started weeping. Though she was now free, her body was almost completely wasted. She had undergone multiple operations for gallstones. And each operation resulted in further exhaution. The mental injury is almost beyond repair. She regularly faces depression and sudden mood swings. On the other hand, the IG of Bastar, Kalloori has planned to fabricate Kawasi in a further case as she continues to speak of her violations and join Soni Sori in their fight against these injustices

This is not just the story of Kawasi Hidme, but rather the story of thousands of Adivasi women and men incarcerated for longest years of youth and vitality.The hard question we need to ask here is, who is going to compensate for their lost years? In the absence of legal aid, the torture these young women and men have undergone are never proved . The even more shocking part is that we do not hear such stories in the mainstream media. Soni Sori was one of the few women whose voice did reach mainstream media, the reasons being her own courage and the extent of gruesome torture she underwent. Though among aware citizens, it is not unknown that the Police frame adivasis and vulnerable people in regions like Bastar in false cases by branding them as naxals, but serious documentation on it especially when it comes to women still remains minimalistic. But all this fades in the midst of the footage that mainstream media devotes to coverage of the IPL, paid-news reports or events that do not concern us. This has created an illusion in the minds of our youth that a good life means a good job and abundant money with no concern for society at large. The few courageous women who decide to stand up against the mighty and powerful state apparatus face hostility at every step of their work. Recently when Soni tried to help Bhima Madkam, a local injured in a police firing, from Madenar village in Bastar to file a complaint, the police started harassing and threatening her saying that they will send her back to the jail by getting her bail order cancelled by the Court on grounds that she is ‘instigating people against the State’.

Apart from investigatng the case and arresting people, the police in these areas also assume the role of delivering justice. The growing impunity they enjoy is disturbing. The power that comes from holding the gun with absolutely no accountability is indulging. They assume the role of the overarching patriarchal figure who under the pretext of ‘protecting’ society, extracts ‘small’ (sexual or otherwise) favours, ‘teaches’ the accused a lesson and gets away easily unnoticed. Unless we broaden the discourse and dialogue on these issues, there is faint hope that anything is going to change for the better.

Hidme’s question keeps haunting us: “I was never involved in any Maoist activity… What was my fault?” We, as concerned citizens, have to decide if we are prepared for more such questions or are we going to stand up and challenge these injustices?

(Note : Support for the facts related to Kawasi Hidme’s case has been taken from Jagdalpur Legal Aid group’s lawyer, also a large part has been translated from information available in Hindi on activist Himanshu Kumar’s facebook page. The relevance of Kawasi’s story in our lives is becoming more important than ever before, hence I chose to talk about her story. All views expressed are mine)

References:

http://www.indiaresists.com/bastar-villager-injured-in-police-firing-police-harasses-activist-soni-sori/

http://www.youthkiawaaz.com/2015/04/magdalene-mailpidi-village-maoist/

http://indiatoday.intoday.in/story/maoists-naxals-jharkhand-ranchi-crpf-cobra-battalion-camp-police/1/431818.html

http://www.thehindu.com/news/national/other-states/acquitted-after-7-years-tribal-woman-says-she-was-tortured/article7050393.ece

http://dantewadavani.blogspot.in/2015/03/blog-post_28.html

http://www.dnaindia.com/india/report-can-carrying-a-vessel-get-one-jail-yes-if-you-are-a-tribal-in-maoist-belt-2072969

Kerala cops’ campaign to criminalise dissent


Unlawful Activities (Prevention) Act is being used to harass and arrest activists and snuff out criticism and opposition to government policies.

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Malayali social media is known to be substantially alive to people’s issues. Within that, the Facebook page of Kerala social activist and blogger, Jaison C Cooper is a particularly lively space. Here, support for the long-standing adivasi “Standing Struggle” protest and anger at indiscriminate environmental degradation rub shoulders with opinion and debate on Kiss of Love and Obama’s visit – all actively shared, liked and vigorously commented upon. From 29th January, 2015 however, an eerie stillness rules – that was the day Jaison was picked up from his office at the State Insurance Department in Kochi and placed under arrest.

The very next day, Adv Thushar Sarathy, secretary of the People’s Human Rights Forum and of the Kerala Chapter of the Committee for the Release of Political Prisoners (CRPP), was picked up at Kozhikode from the site of a press conference. Both Cooper and Sarathy were charged with the crime of ‘unlawful activity’ u/s 13(b) of the Unlawful Activities (Prevention) Act [UAPA]. Their crime was “spreading Maoist thought“. The evidence against them was nothing more than the “pro-Maoist” literature allegedly seized from their homes.

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The two arrests were part of a much larger crackdown spread out over many of the districts of North Kerala. The Kochi city special branch even conducted a combing operation of the men’s hostel of Maharaja College in search of Maoist sympathisers, but only ended up booking two students for possession of ganja. On the evening of 1st February, Students Islamic Organisation leader Shahid M Shameem and Uday Balakrishnan of Youth Dialogue were picked up off a street in Kannur merely because their appearance aroused suspicions in the police that they were Maoists. They were released the next afternoon after intense online and offline protest. Similarly activists in Ernakulam and Wayanad districts, whose houses were raided at night, could prevent their books being taken off by demanding that the police give a seizure receipt – a statutory requirement which they did not want to comply with. On 22nd-23rd December, the midnight knock came for the Thrissur office of a monthly magazine, Keraleeyam, noted for highlighting tribal issues. Computers and materials were seized and three staffers sleeping on the premises were taken in only to be released the next day after extensive protests.

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Not everyone has however managed to get let off. The last week of December 2014 had seen the arrest in Palakkad district of Sreekanth Prabhakaran, a B.Ed student, and Arun Balan, a journalism student. Raids on their homes in Kasargode, Kerala’s northernmost district, had allegedly yielded pro-Maoist and other Left literature and this was considered sufficient evidence to hold them under UAPA. They continue to remain in jail due to the stringent anti-bail provisions.

UAPA provisions criminalise thought!

Thus the Kerala police are adopting the classical model of security agencies throughout the country of using UAPA and other anti-terror laws to stifle protest and stamp out resistance to the establishment viewpoint. The bare provisions of the UAPA law do not require that any physical act of violence or intimidation be committed to constitute a terror crime. The enunciation of various penal and procedural provisions related to “unlawful association”, ‘unlawful activity”, “terrorism”, “terrorist organization”, are so all-encompassing as to make it easy to ban an organization and to criminalise anything indicative of even sympathy or support for an ideology or organization, or espousal of causes similar to those taken up by an ‘unlawful’ association.

Recently there has been a perceptible groundswell of genuine opposition from large sections of civil society in Kerala on a number of issues, particularly the exploitation of tribals and their displacement from traditional homelands in Kerala’s northern forests and the large-scale grabbing of scarce natural resources and poisoning of the environment by foreign and big Indian corporates. A number of peoples’ organizations have been successful in mobilizing in large numbers against government policies in this regard. Simultaneously, the CPI(Maoist), which is proscribed under UAPA, has also been championing similar demands and taking stands against the government and corporates. This commonality or even mere similarity of objectives has been treated by the police as sufficient ‘proof’ to target activists for ‘terrorist’ or ‘unlawful’ activity. This perverse logic extends to even the simple possession of literature that propagates issues that the CPI(Maoist) has talked about.

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Thus the list of subversive literature submitted in court as evidence of Adv Sarathy’s culpability under UAPA includes an article collection entitled “Vinasa Vikasanam” (destructive development). This collection, published in 2012 and prefaced by eminent economist Dr MA Oommen, comprises essays critical of the Emerging Kerala Summit held by the State Government promoting Kerala as an investment destination for private capital. Police reasoning here is apparent – if you propagate against, or even possess material that propagates against government development policy and big corporates, you are guilty of ‘unlawful activity’ or probably even “terrorism”. Sarathy’s investigating officer would probably make the absurd contention that since the CPI(Maoist) too, in statements and interviews, has talked on ‘destructive development’, Adv Sarathy’s possession of a booklet of the same name shows a link and warrants his arrest.

Of course most courts do not buy such arguments. The Supreme Court itself has ruled that the penal provisions of the UAPA and similar laws would only be applicable if the accused actually committed violence or incited to imminent violence. Thus most trials end in acquittal, but that is only after several years spent in custody due to denial of bail under the harsh UAPA provisions. Accused in similar cases, Hem Mishra, a cultural activist and student of Delhi’s Jawaharlal Nehru University, arrested in August 2013 and Dr. G N Saibaba, a professor of Delhi University, arrested in May 2014, continue, to this day, to stoically soldier on in the Anda Barrack of Nagpur Central Prison due to the power of the bail denial provisions of UAPA. They too were prominent activists in the forefront of opposition to state policies. Their continued incarceration is a standing testament of the power of such law to criminalise and penalize dissent.

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Resistance to Repression

And it is this law that the Kerala police pins its hopes on, to push resistance into retreat. The current phase of their arrests, combing, raids, seizures, interrogations, commenced in April 2014 with the release of a so-called look-out notice listing many of the most prominent names active on civil liberties and people’s rights. This and the later raids were intimidatory acts designed to frighten off at least some of those named and targeted, and to isolate the rest, who could then be put behind bars.

This may have had some impact and created some sense of aloneness among those standing, a feeling probably intended to be expressed in Jaison Cooper’s last post on his Facebook page – “I am a lone monk walking the world with a leaky umbrella”. It is Mao Zedong’s concluding comment at the end of a conversation with American journalist, Edgar Snow in December 1970.

Whatever be the import of Cooper’s post, he nevertheless would have no reason to feel alone in the response that has arisen to his and Sarathy’s arrest. There has been a surge of support throughout the country and even internationally. Within a short time Kerala has seen many protests to the arrests. Among others, Amnesty International has also called for the release of the four in prison in Kerala. A number of noted intellectuals and activists, including Arundhati Roy, have also petitioned the chief minister for releasing Cooper and Sarathy.

Have your say. You can comment here.They have unequivocally declared, “We, the undersigned, believe that this police action is a well concerted political act to silence all voices raising critical questions about the political, economical and social issues in the country.” It remains to be seen whether the silencing will succeed, or whether the reaction to the police action will build up into a movement that will bring into focus an alternative voice and view on crucial questions that concern us all.

Why Modi won’t remove some colonial-era repressive laws


Decoding sedition, preventive detention, unlawful activities, armed forces special powers.

Once upon a time a group of traders came to India from a cold distant land called Britain. Bit by bit they took over the country and came to rule through a combination of trickery and tyranny. They built up their system of rule around an elaborate scheme of laws governing all areas of people’s lives. Each time the Indian masses rose to oppose British rule, more stringent laws were brought in to sustain their regime.

Law of Sedition and Other Colonial Laws

Thus, soon after the First War of Independence in 1857 was crushed, the British Crown brought in the Indian Penal Code 1860, where the initial chapters defining crime were all political and dealt severely with offences against the state, armed forces, public tranquility, etc. Later, as discontent continued, the British introduced Section 124A, which prescribed life imprisonment for the “crime” of sedition. It defined sedition as an attempt to excite “disaffection towards the government established by law”. It was soon used repeatedly against all leaders of the independence movement, including Bal Gangadhar Tilak, Mahatma Gandhi, Annie Besant and others. Gandhi in his defence statement in court said, “Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law.” History proved him right. Section 124A did not succeed in gaining any affection of the Indian people for the British Crown.

But that did not stop the Britishers from introducing other laws to try to halt the rising tide of disaffection of the Indian masses. They brought in Preventive Detention laws like the Defence of India Act 1915 to imprison political activists even before they committed any offence. The Rowlatt Act – called the Anarchical and Revolutionary Crimes Act 1919 – was the first “anti-terror” law designed to suppress revolutionaries like Bhagat Singh. When all these failed and the masses took to the streets during the Quit India movement, the British brought the Armed Forces (Special Powers) Ordinance, 1942 giving powers to armed forces personnel to shoot to kill the protesters agitating for Quit India, without fear of prosecution. But all these were of no avail and the movement against British Rule went on rising, finally forcing them to retreat and hand over power to another set of rulers from the Congress in 1947.

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New Rulers, Same Laws

Post 1947, it was naturally expected that the new government had the affection of the people and did not need any of these laws. As Gandhi had said and British experience had shown, affection could not be manufactured by law. The Constitution, which came into effect in 1950, guaranteed freedom of thought, expression and association, the right to life and liberty, and various other fundamental rights which were to override all the repressive enactments of the British period. The government would now win the affection of the people by its actions, not demand it by fiat.

But that was not to be. The Constitution itself allowed preventive detention and the Preventive Detention Act 1950 was introduced within a few weeks of the Constitution coming into force. This was supposed to be a temporary measure for one year, but it lasted for 19 years. It was then replaced, within two years, by the Maintenance of Internal Security Act 1971, the notorious preventive detention law used widely during the Emergency of 1975-77. This was withdrawn by the post-emergency government in 1978, only to be substituted by a new preventive detention law, the National Security Act, 1980, which is in use to this day.

The First Amendment to the Constitution provided another indicator of how soon the new rulers would revert to the ways of the British. It was brought to restrict Article 19(1)(a), the right guaranteeing freedom of expression, because the courts had ruled in favour of certain political magazines critical of the government. Later, when the High Courts struck down Section 124A as being ultra vires of the Constitution, the government fought in the Supreme Court to preserve sedition law in the statute books. The Supreme Court preserved Section 124A but prescribed that it should only be applied when there was a direct incitement to violence.

This of course was not to be. Sedition today is being applied in more harsh and absurd ways than ever before. Award-winning Doctor Binayak Sen has been sentenced to life imprisonment for providing human rights assistance to Maoist accused prisoners; Kashmiri students in Meerut who cheered Pakistan during a cricket match on TV faced sedition charges which soon had to be removed; a Muslim youth who did not stand during the National Anthem in a movie-house in Kerala is in jail for sedition; and more than seven thousand cases of sedition have been registered against opponents of a nuclear plant in Koodankulam, Tamil Nadu.

The “anti-terror” Rowlatt Act too was brought back in much harsher form, first with the Terrorist and Disruptive Activities Act 1986, then with the Prevention of Terrorism Act 2001 and now with the Unlawful Activities (Prevention) Act. And for places like the North-East and Kashmir, where the level of disaffection of the people towards the government is seen by the authorities to be as high as it was towards the British during the Quit India movement, the government has enacted the Armed Forces Special Powers Act 1958. It is a copy of the British Ordinance of 1942 with the difference that the British government gave power to order shooting to kill to the level of Captain and above, whereas our government has given the same power to even a non-commissioned officer who is several ranks below.

Thus we have the irony of a situation where, sixty-seven years after the end of British rule and almost sixty-five years after the Constitution, we have in use all the repressive laws that the imperial rulers had unsuccessfully deployed to hold down the Indian people. Many of the laws have had harsher provisions added to them, but there are no signs that they are achieving the objective of reducing the disaffection of the people they are targeted against.

Naturally many democratic rights organisations and activists are campaigning for the repeal of these colonial-type oppressive laws. Since these laws are basically undemocratic, many would like to see them join the list of obsolete and archaic British period laws that Prime Minister Narendra Modi has vowed to junk by January 26, 2015. But there is no likelihood of such desires being fulfilled. As struggles of the people continue to grow, these laws are being used frequently and more intensively. If anything, these laws are only likely to get further strengthened and entrenched.

How Chaitanya Tamhane’s award-winning film Court mirrors courts in Bastar and beyond


The film has been called a damning critique of a criminal justice system that crushes the poor and exploited underfoot.

With ten awards and counting, Chaitanya Tamhane’s debut feature film Court has had a remarkably successful run so far on the Film Festival circuit. Opening with two prizes at its world premiere at the Venice Film Festival in September, it has so far picked up honours at Turkey’s Antalya Golden Orange Festival, the Mumbai Film Festival, the Austria Viennale, the Hong Kong Asian Film Festival, Ukraine’s Kiev Molodist Festival and Belarus’ Minsk Festival.

Director Tamhane’s script revolves around the proceedings of a trial in Mumbai of an aging Dalit cultural and social activist, Narayan Kamble (Vira Sathidar), indicted on patently sham charges of his songs having incited a sewer worker to commit suicide. Unlike Bollywood courtroom drama, Tamhane’s Court is striking for its undramatised, realistic portrayal of court proceedings. It also has an unusual and disquieting depiction of the ordinariness of the lives of officials like the Public Prosecutor and Judge and their mechanical approach to the judicial processes that decide destinies. The litigants, meanwhile, remain mere bystanders in various states of dazed despair. As the trial drags on endlessly, Kamble is finally bailed out by his human rights lawyer, only to be quickly re-arrested under draconian provisions of law like sedition and the Unlawful Activities (Prevention) Act [UAPA]. The film has been called a damning critique of a criminal justice system that crushes the poor and exploited underfoot.

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Tamhane’s characters are admittedly fictional and located in the big metropolis, but the story they tell is never far away from real life court-room and prison tragedies played out everywhere – whether in metros, district towns or remote forests. Take the abetment to suicide charge for example. Reviewers have variously called it absurd, ridiculous or plain farcical and seen it to be merely a satirical play – something that does not actually happen in real-life. But reality often throws up cases much more absurd, particularly if the police have got orders to target someone, often a dissenter.

Court’s lead actor – A victim in real life

Vira Sathidar from Nagpur, who plays the lead role of Kamble in the film, but is a distributor of progressive books in real life, has often himself been at the receiving end of such action. On October 15, 2006, he was picked up by police from the Diksha Bhoomi grounds at Chandrapur, Maharashatra, where he was selling books during the annual commemoration of the historic Dalit conversion to Buddism. He was interrogated over two days in a case registered under Section 18 UAPA, which carries punishment of life imprisonment. Though Sathidar was let go, 200 of his books, covering 41 titles, mostly by Dr. Ambedkar and some by Shahid Bhagat Singh, were seized, never to be returned. The police never thought it was ridiculous to suggest that selling such books could constitute conspiracy or abetment of a terrorist act, which is what Sec. 18 of UAPA is about.

Though the case did not reach the stage of a charge-sheet or trial, the police have not, till date, formally informed whether the charge has been withdrawn or not. Sathidar thus, to this day, carries the very real fear of his fictional Kamble, facing trial for abetting suicide through song becoming a real-life Sathidar, facing trial for abetting terrorist acts through books.

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Sathidar has had to again face more such book seizures in 2010 and again in 2013. But he has at least been saved the misfortune of the many others who have remained for years in prison on the basis of highly bizarre allegations.

Recently a report from a group of lawyers based in Bastar, Chattisgarh, gave details of numerous such cases, most from Dantewada District. One of the cases was of a 65 year old tribal, Kawasi Rajkumar, shown to be arrested in 2010 with a bow and some arrows and charged under the Arms Act and Explosives Act, who is still in prison awaiting trial. Many more like him continue to be denied bail and rot in jail.

Tarikh pe tarikh in Dantewada Court

The tarikh pe tarikh routine common to practically every court in the country is starkly shown in Court, where the investigating officer goes on asking for adjournments, sometimes for the lack of papers, at other times for illness of a witness. This tale of delay however takes on an altogether new dimension in the Dantewada courts, where almost all adjournments are because the police officers themselves refuse to show up and court summons and warrants are simply ignored for months and years on end.

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The Bastar lawyers’ report tells of a case where there are only five witnesses, all police, including two investigating officers, but the trial has yet to commence while accused remain in jail for six years. Court summons have been issued calling these police personnel no less than 30 times since April 2010, but not a single one of them has appeared even once to give evidence.

In another case, Kunjami Posca, a 60 year-old has been waiting in jail for seven years for his trial to complete. The case has been at a total standstill for over four years since May 2010 as the court waits for two witnesses – the post-mortem doctor and the investigating officer. Though both are government officials drawing regular salaries, they blatantly refuse to comply with court summons.

All this continues under the benign gaze of the courts, which do not use any of their powers to haul up the officials and halt deliberately delayed proceedings, often on charges that are clearly unsustainable. It often happens that the chargesheet produced by the police is not read before the trial by any officer of the court – not the judge, not the prosecutor and not even the defence advocate.

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In the case described above, where 30 summons have not yet produced a single witness, two of the three accused, Midiyam Lachu and Punem Bhima, are not even mentioned once in the whole charge-sheet. It was only after they had been six years in prison that this was shown to the judge, who promptly scolded the prosecutor, who in turn pointed out that it was the Honourable Court that had framed charges against the two without even bothering to read whether the charge-sheet had anything against them. The advocate for the accused was a court-appointed legal-aid lawyer who too had not cared to look at the charge-sheet.

This Kafkaesque scenario was complete when, despite discovering that the two had been wrongly imprisoned, the court did not have any procedure to even order their release. Since the charges had already been framed over four years ago, the Code of Criminal Procedure did not have any provision for the court discharge the two, so it ordered bail. Since Lachu and Bhima did not have the resources to provide bail, they could not get released. Since the police, who are the witnesses, continue to ignore summons the trial cannot proceed. Since the trial cannot be completed the accused cannot be acquitted, and, despite the judge and every other court officer knowing that there is nothing against them, they continue to remain in jail.

In the film, Tamhane has a scene where the camera remains still as the court closes and descends into emptiness and darkness. Lachu and Bhima are rarely taken from prison to court because the police rarely provide escort guards for court production. But if they did attend court they would very likely be overcome by a similar sense of emptiness and darkness.