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

inside1_020317040523.jpg

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

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.

story-1_010616012905.jpg

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”.

story-2_010616012937.jpg

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

How Telangana has crushed the dreams of its youth with terror


With continuing false encounters and repressive measures, the rulers of the new state have gone back on their promises.

The Telangana bandh called on October 10, 2015 demanding implementation of the ruling Telangana Rashtra Samithi’s (TRS) promise of farm loan waiver is only the latest in a fresh round of protest and turmoil mounting in India’s newest state. The “Chalo Assembly” rally scheduled before that, for September 30, 2015, was called by around 370 Left and Muslim organisations against the impunity with which the police have been continuing their policy of extra-judicial killings in the name of encounters, even in the new state of Telangana.

Five Muslim prisoners had been brazenly killed on April 7, 2015, while they were being taken to court. On September 16, 2015, two Maoist activists, Shruthi and Vidyasagar, were shown to be killed in an encounter. What aroused public anger was the vivid signs of torture on the bodies of the victims indicating again that the encounter story was fake and that the two had actually been picked up and then killed in cold blood after being submitted to brutal torture. There were even allegations of rape owing to obvious marks on Shruthi’s body showing that acid had been poured on her private parts to demolish evidence of sexual assault.

With an expectation of large participation, the government used all means at its disposal to suppress the rally, arresting hundreds on the previous night itself. Several thousands attempting to reach the Assembly were detained by the police, who not only threw a security cordon around the Assembly in Hyderabad, but also deployed forces in the neighbouring districts to stop those on the way to join the protest. There was even an attempt at self-immolation near the main gate of the Assembly.

telangana-embed_101515043730.jpg

The movement for a separate Telangana state was one of the most vigourously fought out ones in recent times, capturing the imagination of the students and generally the youth of the neglected region in a big way. It resulted in the death of over a thousand people, who are recognised by the new state as martyrs to the cause of statehood. All through the movement, a central rallying point for the youth, in particular, was the promise of a progressive social agenda for the new state to pull it out of backwardness. The leader of the movement and present chief minister, K Chandrashekhar Rao (KCR) had even gone so far as to declare that he would follow a policy in line with the socio-economic programme of the Maoists.

There were thus great expectations from the new dispensation. However, in the 16 months since the formation of the state, the direction taken by the new government does not seem to have offered much hope. Discontent, particularly among the youth is rising, giving impetus to a number of agitations. The police in the meantime has continued to operate with a heavy hand as before. The chief minister had given assurances that there would be no “encounters” in the new state, but there obviously does not seem to be any intention of putting it to practice. The way in which the police force was unleashed on the “Chalo Assembly” rally on September 30 was also no different from the way KCR’s own “Chalo Assembly” call in May 2013 had been suppressed. Even the parents of the encounter victims were not spared the police lathi.

Use of the police to suppress the resentment can however be, at best, of short-term utility. Movements in Telangana have a way of rising up again and again. This was the case with the movement for statehood, which went through various violent phases before achieving its end. Unless there is actual and visible progress on the ground by the government moving to fulfil people’s aspirations, new rounds of protest and agitation are only to be expected.

Soon after the September 30 police action, the government was trying to do damage control by reiterating the same old promises. KT Rama Rao, a cabinet minister and son of the chief minister, told that “the Naxalite agenda is our agenda“. There are few takers this time, however, for such rhetoric. Several youth who were on the forefront of the separate statehood movement have already been disillusioned enough to take the step of joining the Maoists.

Revolutionary writer, Varavara Rao has claimed that nearly 36 educated youth, including the recently-killed Vivek and Sruthi had joined Maoist group from Telangana. Since there does not seem to be any indication that the government will change its ways, this flow can only grow.

By Vernon Gonsalves and Arun Ferreira

 

Why repression of adivasis in Chhattisgarh doesn’t worry the media


However, amidst diminishing democratic space the struggles of the state’s tribal activists offer hope.

The Press Club of India should probably be one among the sacred-soil sites of Indian democracy. It ought to be a place from where the Fourth Estate sallies forth to test and stretch the spaces for free speech and democracy. Regrettably, these days that’s rarely the case. Nevertheless, on August 18, 2015 this was the venue selected for a press conference where three representatives of the tribals of Bastar in Chhattisgarh – Soni Sori, Lingaram Kodopi and Kawasi Hidme – came to tell of how democracy functions in their land.

Sori and Kodopi have done this before. In 2010 and 2011 they had exposed before the press the atrocities committed on the common people by the police in Bastar. They were then wrongly implicated and pursued by the Chhattisgarh police on patently fabricated grounds, arrested in 2011, faced severe torture and were only released on bail by the Supreme Court after they spent over two years in jail.

After release and return to Bastar, they have insisted on continuing to stand up against the innumerable cases of illegal detention, false implication, custodial torture, fake encounters and disappearances that have come to be a part of daily life in that area. Sori, in particular, has been in the forefront of numerous protests where thousands of adivasis have gathered in rallies and demonstrations at police stations and before district headquarters of the police and civil administration.

maoism-embed_082315071305.jpg

The latest was her exposure of a fake encounter killing of an unarmed villager, Hemla Podiya, in Nahadi village of Dantewada district on July 29, 2015. This killing done by Special Police officers, who have been outlawed by the Supreme Court, was protested by the villagers, who assembled under the leadership of Sori. The Bastar inspector general of police, SRP Kalluri, retaliated by calling for her, and Kodopi to be excommunicated from the area and by instigating local traders to demonstrate outside Sori’s house.

The attempt to “excommunicate” Sori and Kodopi is not something new. It is only the latest in a long line of such attempts and it is definitely not going to be the last. Binayak Sen was targeted in 2007 for his aid to Maoist political prisoners like Narayan Sanyal, as also for his exposure since 2005 of the first armed Salwa Judum campaign launched and equipped by the Chhattisgarh government. Gandhian Himanshu Kumar is another example of an activist and dissenter who has been hounded out of Chhattisgarh, who has had around a hundred cases registered against him and whose centre, the Vanvasi Chetana Ashram, was bulldozed and destroyed.

There have even been attempts to keep out those attempting to approach the judiciary for relief. In September 2013, activist and journalist Prashant Rahi was picked up from Chhattisgarh’s capital, Raipur, where he had gone to consult and coordinate with lawyers who were defending political prisoners. He was whisked off to Maharashtra, tortured and shown to be arrested there and remained in prison for one year. The lawyers of the Jagdalpur Legal Aid Group providing much needed legal help to the local tribals have also faced thinly-veiled threats of implication in cases of abetting Maoists.

maoism-embed-1_082315071322.jpg

The abiding reason for this insistence on the eviction of all democratic dissent is the state’s gameplan to use maximum force to crush the challenge of the revolutionary movement of the tribals led by the Maoists. Such militaristic solutions require not only the deployment of lakhs of armed personnel, but also the management of “facts” and therefore the evacuation of all civil society support that could potentially carry the truth to the outside world.

The immediate reason for the repression is, however, the land hunger of the corporate class. The country’s biggest corporations and some foreign biggies have all lined up investments to exploit the minerals below the forests of central and eastern India. They are in a mighty hurry to realise their gains and will brook no delay in seizing the land. Both the Centre and state governments alike are therefore scrambling to pander to this hunger. Ten months ago, the Centre spelt out its “Clear, Hold, Build” doctrine that promised “to use any element of its national power” to wipe out resistance. The state government, after the utter failure of its first Salwa Judum campaign, is now getting ready to sponsor a new round of civil war – Salwa Judum 2.0. These cannot smoothly move ahead without the systematic and complete closure of all democratic space.

Such unholy stratagems call for comprehensive exposure, but it would be far-fetched to fancy that today’s mass media organs have it in them to do it. Creeping control of the media by big corporations, with its complement of self-censoring editors, ensures that material inconsistent with corporate interests can rarely slip on to the front pages. Corporate-controlled media is unlikely to report on the effects of corporate land grabbing. This was also probably why, despite a packed house of journalists at the press conference mentioned earlier, there was hardly any reportage the following day.

maoism-embed-2_082315071341.jpg

During these days of rising undemocratic tendencies and shrinking democratic spaces, the decay of democracy’s fourth pillar is a cause for concern. There are, however, voices that make the horizons less bleak. One such voice is that of the frail-looking Kawasi Hidme, who was arrested at 15, tortured, gang-raped, falsely implicated and thrown into prison for seven years before she was acquitted and released in March this year. As she, with rare daring and dignity, related the horrors she had gone through, her mentor, Sori, had this to say: “I need to give her strength again, I want her to fight. Perhaps we can do something for all women who come out of jail but are still unhappy, to help them get their lives back.” She added: “Who knows, perhaps Hidme can become the strongest fighter of us all.”

Voices such as these, with their staunchness and stubbornness in the face of mighty odds can bring the greatest hope. Sori and Kawasi are after all only representative of thousands of other courageous people in their area who are standing up and refusing to give in. Long considered the wretched of the earth, it seems to be their struggle that is redemarcating and redefining what democratic spaces and democracy can mean. Their struggle to attain and sustain liberty, land and livelihood in the remotest forests of the country may be primarily their struggle to survive, but it has the potential to show the way for democracy in our country to thrive.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/maoism-bastar-chhattisgarh-soni-sori-salwa-judum-binayak-sen-naxalism-lingaram-kodopi-kawasi-hidme/story/1/5834.html

Why it isn’t just Modi government that’s soft on Hindutva terror


BannerSpecial public prosecutor in the Malegaon blasts case, Rohini Salian’s disclosures are not merely about the present government – they are more about the non-secular character of the Indian state.

When they came in November 2008 they had none of the coyness and reserve typical of new entrants into a prison. Even the more hardened Anda Barrack inmates of Mumbai’s Arthur Road Jail were somewhat taken aback at the cockiness of the new lot led by Lt Col Purohit, whose words were soon being passed through the cells in hushed whispers: “We’ve done it and we’ll do it again”. Though implicated in the 2008 Malegaon bomb blast, this set did not show any of the unease characteristic of other terror accused and were quite willing to wear their guilt on their sleeves like some badge of bravery.

Their bravado had of course a lot to do with the high-level backing that had been generated in their support. There was the present Union home minister, Rajnath Singh, giving them a clean chit and saying, “I’m not ready to believe that Sadhvi Pragya Thakur is a terrorist“. Former deputy prime minister and home minister, LK Advani, even met the prime minister to intercede on their behalf. No one in the Anda Barracks then anticipated that this group would remain long behind bars – not the the accused, not the other inmates, not the writers of this piece who were then in prison. Anyone with some experience of the workings of the criminal justice system can tell that those with sufficiently high-level friends championing their cause can find ways to soon get out by arm-twisting the investigating officers or fixing the prosecutors or even influencing the courts.

Cold calculations can however go awry in the face of the tenacity and obduracy of an uncommon individual or two who refuse to bend under the pressures of the powers that be. So it happened with the expectations of a quick bail-out for Purohit and his co-accused.

Hemant Karkare’s investigations

Hemant Karkare, the then chief of Maharashtra’s Anti-Terrorist Squad (ATS), who had reached there after a seven-year stint in the Research and Analysis Wing (RAW), had already created a name for being different. He had bucked the trend among “anti-terrorist” police officers in the country that had seen the implication and arrest of Muslims in all blast cases becoming some sort of a SOP (standard operating procedure). He led the investigations that first identified Sadhvi Pragya’s direct role in the 2008 Malegaon blasts and then uncovered the larger conspiracies of the Abhinav Bharat group, led by Purohit, which had planned and executed a number of bomb blasts, including the 2006 Malegaon, 2007 Samjhauta Express, 2007 Hyderabad Mecca Masjid, and 2007 Ajmer Sharif blasts. He had an uncorrupt reputation and was not known to easily submit to unlawful demands of higher-ups.

As the attacks on him from within the ruling classes mounted, he dug his heels in. This was written about by retired Mumbai police commissioner, Julio Ribeiro, whom Karkare met just before he was killed in the 26/11 Mumbai terror attacks. His was a lonely job with even the Nationalist Congress Party (NCP)-Congress ministers in Maharashtra not coming out strongly in his support. His rivals in the police force – senior officers in the crime branch and the office of the director general of police (DGP) – were even tapping his telephone conversations to keep track of the Malegaon bomb blasts investigation.

karkare-cbi_070315075247.jpg

The deeper conspiracy

The concern shown by Karkare’s bosses was but natural. It was during the time of his predecessor in the ATS, KP Raghuvanshi, that the Maharashtra Police had even recruited prime terror accused, Purohit, to provide training to its anti-terror personnel. He also received a letter of appreciation from Himanshu Roy (who was till recently the ATS chief) for assistance, cooperation and information-sharing and an educative workshop in Nashik in November 2006 – just two months after a blast in Malegaon in the same Nashik district, which is now revealed to have been executed by Purohit’s own terror group. It was clear that Purohit had friends high up in the hierarchy and deeper investigation into the forces behind the blast conspiracy could very well end up at some very senior police officers’ doors.

Same is quite likely true of the Army. Purohit, despite being in prison for almost seven years under such grievous offences, has neither been suspended nor dismissed from the Army and his wife continues to receive his full salary.

Contrast this with Delhi University’s suspension of Prof Saibaba on half salary within five days of his arrest on a much less serious charge of supporting Maoists. There seem to be at least some among the top brass of the Army who are protecting Purohit. He, on his part, has even claimed that his Army bosses were aware of what he was up to. Thus, though it is obvious that there are more high-level officers involved in the conspiracy, no attempt is evidently being made to delve into the truth.

Prosecution sabotaged

It is in this background that one must see last week’s disclosures by Rohini Salian, the special public prosecutor (SPP) in this case, wherein she has detailed how, soon after the Modi government came to power, the NIA (National Investigation Agency) asked her to go soft on the accused in this case and how, when she did not comply, she was told to stop representing the NIA. She has also related how even Mariar Puttam, the senior counsel for the prosecution in the Supreme Court, was unceremoniously nudged aside in order to thwart the prosecution from obtaining favourable orders.

Salian’s disclosures also tell how in 2008 Karkare had, despite her having resigned from public prosecutorship, specially requested her to come back to handle this case. Karkare obviously handpicked her knowing that the other SPPs could not be trusted to stand up to the pressures that were already building up in favour of the accused. She apparently lived up to Karkare’s trust in her and did not let go. This is probably why, despite Karkare being killed soon after her appointment as SPP, the evidence collected under his watch was used to file a strong chargesheet, and the prosecution remained firm on it through all the legal twists and turns resorted to by a battery of top notch lawyers for the accused. This obviously will not continue now that Salian has been removed from the scene.

A non-secular state

However it would be a mistake to merely agree with Salian’s portrayal that the problem is the Modi government that is soft on Hindutva terror groups. It would also be a mistake to simply concur with post-Salian disclosures and media commentary that links the Modi government’s softness to the links of the accused with the Sangh Parivar. While this is undoubtedly true we must recognise that the malaise goes much deeper.

Salian herself narrates how after Karkare’s death she had to go to the ATS office and literally shout at the officers to go ahead with the case, to make Karkare’s “soul happy”. She also recounts how after the case was transferred to NIA in 2011 (by the United Progressive Alliance government) “they have not put in a single paper in court after taking over” and even allowed default bail for three accused by not submitting a chargesheet against them. All this slumber was under the watch of P Chidambaram, arguably India’s most hands-on home minister in recent times who, according to Salian, “has seen every paper of the case”. Similarly the Army’s leniency towards Purohit has been under AK Antony’s command.

Thus, though the Modi government has gone proactive in protecting and moving to release the accused of Hindutva terror organisations, this should in no way amount to an endorsement of the secular credentials of the earlier government. More importantly, there remains the nagging question of the commitment (or lack of it) of the various arms of our state apparatus to the idea of a secular state. Time and again our state police forces, central investigative agencies, paramilitaries and even the military have failed to show the required allegiance to the values of a secular India, which we do not tire of loudly proclaiming to the world. But scratch the surface and our state machinery displays slight variance, if at all, from the behaviour of an avowedly non-secular Pakistani state.

Julio Ribeiro has been quoted as saying, “the Hindu terror probe should be carried out professionally. If they are scuttled on religious grounds, India would lose its moral right to take on Pakistan for going slow on Hafiz Saeed and Zakiur Rehman Lakhvi… “. The question is whether, going by the practice of its prime organs over the past several years, the Indian state is secular enough to be up to the task.

cartoon-23_070315075351.jpg

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.

salwa-1_060915054443.gif

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.

salwa-2_060915054550.gif

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

Prisoners in their own country


I am deeply perturbed by the death of Suzette Jordan. I question myself, why does her death trouble me so much! by Sushmita Verma

Sush_ Suzette JordanFor those who do not know her, Suzette used to love to dance. She used to stay in Kolkata. She loved the color red and liked to wear red lipstick and red sandals. Suzette was bold and used to take a stand for herself without relying on people. At the same time, Suzette did not want to always feel like a heroine. She had her weaknesses like every other human being. She died because she did not get the support a rape victim needs after the ordeal. Yes, Suzette was a rape victim, from Park Street, who was raped again, by the society, by the politicians, by the neighbours, by the colleagues. What was her fault? She willingly chose to fight the stigma of rape by disclosing her real identity. Most of the survivors of rape assault do not disclose their identity because our societies have still not reached a stage where we accept rape victims in the entirety of their being. Rape stays as the single most identifiable event post the incident and affects their lives in many ways. Some employers throw away the women from jobs, the neighbors and society blames it on the outgoing nature of the girl, the politicians make obscene remarks on the girl (Mamata Banerjee called Suzette enemy of the state) apart from suspecting foreign hand and eating Chinese as the causes for rape. Suzette made a conscious choice of staying strong knowing the ways of the society, but what she was not prepared for, was an even more insensitive and cruel judicial process .

The parading of the victim’s underwear (that she was wearing during the time of rape) as examination of evidence in the court is not just outrageous, but also inappropriate. The purpose of such an exercise can only be to humiliate and break the will of the victim. And this was not an exaggeration but only the fact about how Suzette was treated in the court by a ‘female’ judge (She shared her trauma with a close friend Harrish Iyer). To imagine, from a society where buying undergarments and menstrual pads in small towns is still a stigma and one is always welcomed with sly smiles and weird looks to the same society where the victims of rape have to go through the demeaning task of identifying their undergarments in front of a hall comprising essentially of a predominantly male population, what is the level of trauma one can be expected to go through ? No wonder, many of the rape victims that we work with are undergoing many kinds of depression in a society that is cruel to the most unimaginable extent. In such situations one would expect at least the judicial process to be fair and just but the case is opposite. Suzette confided in Harrish, “I WAS GANG RAPED. AGAIN AND AGAIN AND AGAIN IN COURT.”

The Protection of Children against Sexual Offences Act 2012 and Justice Verma Committee recommendations 2013 provided women and children with really progressive provisions, which would empower the women if implemented . Provisions relating to protecting the identity of victim, zero FIR, wherein one could report the incident of sexual violence to the nearest police station, provisions that the medical facilities or treatment can not be denied to such victims, statements can be recorded in private, not having to face the accused except for test identification parade, to have a screen when the victim might be feeling intimidated etc. But barely any of it has come in practice. Another fact to be noted is that the CLA ( Criminal Law Amendment ) that was adopted after the Justice Verma Committee recommendations were made available , did not come through a transparent procedure, nor was tabled for discussion in the parliament or in any open discussion. Rather some of the provisions that the government ‘liked’ came as part of CLA without a proper explanation and without any measures or regards of how those will be implemented on the ground, i.e. in Police Stations and Courts . No wonder that the process still continues to be mostly apathetic to those who most need it. For example, the Section 376(2) of the IPC expanded its provision from custodial rape, rape by authorities of an institution, rape by police officers or military personnel in uniform etc. to include rape which results in the victim being mentally or physically disabled and now attracts a punishment of imprisonment for a minimum period of 7 years to life. Now, the important point to note is that custodial rape and sexual assault of adivasi women, dalit women has been in common public knowledge. There are rows of such cases in front of us. The question is where is the rule of law here? Do these women have the privilege of even lodging a complaint charging the policemen, SPOs of aggravated sexual assault? Do they have a voice?

The women remain as distanced as ever from the law. Especially, the women from lower strata of the society are not merely disconnected from any provisions of law but also, in many cases their existence is in conflict with the legal provisions. The law, needless to say, serves the purpose of the people who have the luxury of time and money to go through the tedious judicial processes.

It is not an unknown fact now that rape is only a symptom of the deeply demented patriarchal societies we live in. In India, where the imagination of the nation constitutes a Brahminical Upper Caste Hindu Male figure as Perry Anderson so eloquently analyses in his works, the situation is worse. Hence we can conclude that the problem of rape is not just in the mindset of ‘THE’ Criminal as the society would have us believe but in our deeply entrenched patriarchal overarching values. This combined with the power that comes from being in charge of the law and order for the society becomes an extremely addictive and fatal formula to maintain the hierarchical order of the society. The people who are expected to defend the rights of the people become actually the abusers of it.

Hence it is important to see how this structure can be broken. To understand this, we have to start from where the society is and not our utopia of what a society should be. I think the first step should be to treat rape as any other crime (against women) and deprive it of the aspect of honor. Now it is easier said on paper. But how does one achieve this? By supporting the victims of rape in their struggle to pursue justice. In many cases the rape victims do not want to follow the tedious road of justice, and that should be respected too. But in any case, to start forming those support groups, those communities, those conscientious people, who, when come to know about these instances, take responsibility of at least one survivor in their community or neighborhood. The very feeling that someone is there to share their pain can be a great boost to their moral strength. Once this person is made to feel accepted and like a normal human being and not a ‘victim’ or ‘survivor’ only, the process of reform starts. The internal has to heal first in order for the external to fight its cause. That healing, that belief, that first support, that first acknowledgement is a small but a very important step. Even if a few of these women come together, supported by the society, they can be a great support and encouragement to other women amongst them. Take for instance the example of four women lawyers in Jagdalpur area of Chhatishgarh district who have come together to fight against fabricated cases. Such local and grounded groups are required and can be aided by groups with more resources and knowledge from time to time. It is my dream that feminism does not remain in Vogue empower videos but comes down to the bastis of Mumbai and muhallas of Ranchi and to jungles of Chhatisgarh.

Allahabad lawyer killing shows how khaki is above the law


All-India advocates’ strike fails to have any impact on rising police impunity.

 

The story of the near-total strike on March 16, 2015 by 1.3 million advocates throughout the country began on March 11 on the steps of the entrance to the Allahabad District Court building. The shaky mobile-shot video available on YouTube shows a sequence of events which started with an argument between a uniformed sub-inspector, Shailendra Singh, and an advocate, Nabi Ahmed. The cop decides to settle the argument by other means and reaches for the gun in his holster. There is a scramble as other lawyers try to intervene. The police officer however fires from his weapon, felling the advocate. As shocked lawyers and standers-on run helter-skelter, the cop brandishes his gun, pointing it all around. As howls of protest rise he runs for the gate.

The advocate died even before reaching the hospital. Lawyers immediately started protests both at the District Court and at the Allahabad High Court, the largest high court in India, but had to bear the brunt of police lathi charges even within the court premises. They also marched to the office of the SSP (Senior Superintendent of Police), where the killer cop had reportedly taken shelter. As the protests there turned violent there was police firing. The lawyers struck work and boycotted the courts, first in Allahabad and Lucknow and from the next day, throughout Uttar Pradesh. A one-day All-India lawyers strike was called on Monday by the Bar Council of India. The lawyers of UP continued their strike, demanding action on the SSP, among other things. On the seventh day however, the Allahabad High Court Bar Association withdrew the strike without this demand being met. A mahapanchayat of all the District Bar representatives of the state has also decided to bring the boycott to a close on March 23rd.

arun-story_032315035109.gif

The incident and its aftermath raises questions germane to the function of the system of justice in our country.

First, is the extent to which the police have become a law unto themselves. The sub-inspector not only used his service revolver to settle his dispute, but, after the incident, even visited his own police station and another police station, without any attempt being made to arrest him. The dispute itself arose from a criminal complaint filed by Nabi Ahmed, which was to have been investigated by Singh. The advocate’s grouse was that Singh has taken a bribe from the accused and had filed a closure report in the matter, without doing any investigation. That he dared to accost and question the officer about it cost him his life. A press report, which gives some indication of the police mindset, quotes the officer after the incident as saying there was nothing greater than sanmaan – thus implying that it was his “respect” that was at stake and hence the firing.

But it was not only the sub-inspector’s mindset. During the lawyers’ agitation the higher level officers too went out of their way to present a story indicating that the firing could be an act of self-defence. In a way they were merely mirroring the numerous fake stories of “encounters” in “self-defence”, used by police all over the country. To a society which has grown to accept hundreds of such stories without question, the story of an unarmed lawyer in a court building being a threat to the life of an armed sub-inspector does not seem too absurd.

The killer cop was no criminal in the eyes of the police. Though he continued to remain with the city limits he was not arrested until the rising tide of lawyers’ anger forced the authorities to show his arrest after 48 hours. Some police officers even started sending out messages on WhatsApp calling for contributions in Shailendra Singh’s support from all officers-in-charge of police stations in UP. The collection was reported to have touched twenty lakhs on the second day itself. Such measures quite possibly had the support of police higher-ups.

It is such brazen operations of a police force that call to question any claim that rule of law has sanctity in most parts of the country. Both of us (Arun and Vernon) have spent time in police custody and, having experienced torture and threats of being finished off in an ‘encounter’, are quite aware of the extent of the lawlessness of those assigned to uphold the law. We have seen officers react angrily when questioned in court on such illegal acts, implying that it was a question of their “honour”. But in advocate Nabi Ahmed’s case, the contradictions are all the more stark. Here is a case concerning the courts and the bar, which could at least have been expected to be immune to the acts of a lawless force. It is a case where the local lawyers fought resolutely to protect themselves and their rights. They were joined by all the lawyers of India’s largest state and then by all the lawyers of the country. However, even such a large and organized body could not achieve their demand of action on the district police chief, who sheltered the killer officer. It is perhaps indicative of the degree to which the police have been given a free hand that the government is unwilling to act on members of a coercive arm of the state.

Another less important, but nevertheless worrying aspect of this whole episode is the way such a massive All-India strike action by lakhs of lawyers has simply gone by without much of a ripple in society. Outside Allahabad, reports and commentary in the mainstream media have been minimal. Parliament too, despite being in session, and despite having many legal leading lights among its members, did not notice the strike. An event having a direct impact on crores of litigants has passed off relatively unnoticed. Another telling comment on our level of acceptance of the “tareek pe tareek” court-delay syndrome that ails the whole justice system.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/allahabad-lawyer-killing-nabi-ahmed-shailendra-singh-lathi-charge-high-court/story/1/2710.html