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

We witnessed the unnerving casualness of the top court.

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

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

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

High-level involvement in terror plans

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

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

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

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

Implications of SC findings

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

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

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

Hindutva communalists in high military ranks

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

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

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

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

Charge sheet softened, Karkare slandered

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

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

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

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

Bleak prospects of a secular republic

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

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

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

By Vernon Gonsalves and Arun Ferreira

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

Saibaba, Maruti Suzuki and Aseemanand rulings: Burden of ‘development’ and Hindutva

Judiciary leans to favour a corporate development narrative; NIA remains soft on Hindutva terror.

“Saibaba ko phaasi do” was the slogan that greeted members of human rights organisations from across India assembled at Nagpur on April 8, 2017, for a meeting on “Repression on Social Movements and the Judiciary”. It was a demonstration outside the meeting venue by a clutch of self-styled anti-Naxalite organisations, led by the recently formed Bhumkaal Sanghatan.

‘Mastermind’ Saibaba

The demand of death sentence was for 90 per cent disabled Delhi University professor Dr GN Saibaba who, along with four others, had just a month earlier been sentenced to life imprisonment by the Court of Sessions of Gadchiroli, Maharashtra, for membership and support of the Maoist party.

The demonstrators told the press that their demand was justified, as Saibaba was the “mastermind” of Naxalite violence.

It may seem ridiculous that anyone could think it possible that somebody who is wheel-chair bound, with full-time teaching responsibilities at Delhi, over a 1,000km away, could be the mastermind of the Naxalite movement in central India. But think again before writing this off as the fevered rants of fringe elements.

In fact, these demonstrators were only echoing the outpourings of the ANO (anti-Naxalite operations) police cell. It is the ANO that had, through a press statement within a week of the Saibaba judgment, indirectly criticised the Supreme Court for ordering the release of Saibaba, by claiming that he was the mastermind of 72 violent offences that had been registered while he was out on bail.

This mastermind storyline was widely publicised in the media. Saibaba was in hospital for most of his bail period, but no one asked the ANO how he could direct violent operations over such a distance from his hospital bed. More importantly, no one thought fit to question the police why none of the 72 FIRs registered had even named this so-called mastermind.

A fraudulent development narrative

This casual distortion of logic and truth has been a hallmark of much of what such agencies have spouted in recent years. Such stories aim at shoring up a fraudulent narrative that development – a nasty euphemism for big industry projects that displace and destroy local lives – is being held up by violent resistance devised and even directed by “white collar Naxalites” in far-off metros.

Organisations that are closely linked to security agencies would naturally be expected to remain faithful to this official “development” theme. Journalists are supposed to be more discerning, however, but even that is too much to ask of large sections of today’s mainstream media.

The problem however acquires disquieting dimensions when trial court judges start buying deep into this narrative. This can be seen in the judgment of Judge Shinde, the principal district and sessions judge of the Gadchiroli court.

The judgment seems to be gripped with a desire to see a particular type of “development” in Gadchiroli. Opposition to an iron and steel project at Surjagad is considered proof of being anti-development, and possession of a pamphlet against it is considering incriminating. Such is the judge’s fascination with this project that Surjagad is mentioned no less than 11 times in the judgment.

This despite the project itself being of dubious legality. Seventy gram sabhas in the area have voted against the project and without their approval, the project itself is rendered illegal as per the provisions of PESA (Panchayats (Extension to Scheduled Areas) Act).

Life sentence not sufficient

This however does not stop the judge from giving his understanding of development (or lack of it) a central place in his judgment. Even at the stage of pronouncing punishment, he says, at Para 1013 “…the situation of Gadchiroli district from 1982 till today is in a paralysed condition and no industrial and other developments are taking place because of fear of Naxalite and their violent activities. Hence, in my opinion, the imprisonment for life is also not a sufficient punishment to the accused (emphasis added by us) but the hands of the court are closed (sic)…”

He is so enthralled by the development narrative that he feels that the only appropriate punishment for those standing in its way is a death sentence – the only sentence harsher than life imprisonment. Since there is nothing in the charges, chargesheet or judgment that even alleges (leave aside proves) that any of the accused have engaged in violent activities, it seems that even non-violent opposition to big project “development” is a capital crime.

This bias is amply evident throughout the judgment. It ensured an undeserved conviction and an unjust sentence.

Maruti Suzuki: where unionisation becomes a criminal act

Another case decided around the same time was the Maruti Workers Union judgment decided by the Gurgaon (Gurugram) Sessions Court, Haryana. The case was vastly different and the socio-economic conditions of the two places too are vastly different – Gadchiroli is a forested, unindustrialised district, while Gurgaon is one of the most modern enclaves of the country.

However, here too the same development narrative, albeit another version, was being played out before the courts during the course of the trial.

In this case, an astonishing 148 workers had been implicated in the death of a manager who had been burnt in an unexplained fire during a protest at the Maruti Suzuki plant at Manesar, Gurgaon, in July 2012. They had all been kept in prison for long periods, many throughout the trial, which lasted four years and eight months.

Finally, 13 workers got a life sentence, 18 got imprisonment for various terms and 117 were acquitted. The workers’ actual crime was that they had formed a union of their choice and had demanded the regularisation of the contract workers in the plant.

This “crime” of fighting for their rights resulted in them being denied bail for years despite none having any previous criminal record and there being no substantial reason for keeping them behind bars. Courts at various levels who refused bail seemed to be bending backwards to satisfy big Indian and foreign corporates who wanted to crush the labour movement.

Clearing the way for foreign investors

The development narrative here was one of attracting foreign investment. It was voiced most articulately by Justice Puri of the Punjab and Haryana High Court who, while rejecting bail observed: “The incident is a most unfortunate occurrence which has lowered the reputation of India in the estimation of the world. Foreign investors are not likely to invest money in India out of fear of labour unrest.”

He thus apparently felt that it was the duty of the court to teach the workers a lesson and satisfy foreign investors so that they would be attracted to put their money in India.

Even at the time of sentencing of the workers, the special prosecutor demanded a death sentence by invoking these same words of the high court. He too, like the Gadchiroli sessions court, felt that standing in the way of “development”, here foreign investment, deserved death by hanging. Fortunately, here the court did not accede to this demand.

Nevertheless, the earnestness of the government to somehow bolster their “development” narrative by obtaining a conviction and stiff sentence was a constant pressure on the court throughout the trial. A special public prosecutor was specially appointed for this case who was assisted by a battery of lawyers, including a designated senior counsel.

The case was based on the false evidence of labour contractors, who were interested parties, interested in preserving the contract system that the union sought to abolish. The investigating police officers were in constant attendance to ensure that the witnesses were tutored to parrot before the court the stories that had been cooked up.

NIA shields Aseemanand

Contrast this with the approach of the investigating authorities in the Ajmer bomb blast case that was decided in the same week as the above two cases. Here, the prime investigating agency of the country, the National Investigating Agency (NIA), had worked to ensure that the acquittal of the prime accused and former RSS member Swami Aseemanand was a foregone conclusion.

The Swami had voluntarily confessed before magistrates to being behind a number of bomb blasts throughout the country, but the NIA did not make use of this confession at the trial stage.

The prosecutor, Ashwini Sharma, complained that the IO [investigating officer] did not come once for the hearing, even when he was called and said the witnesses are turning hostile. This attitude of the NIA seems to be their policy in bomb blast cases involving Hindutva accused, as can be seen in the disclosures in 2015 by Rohini Salian, prosecutor in the Malegaon bomb blasts case, that she had been told by the NIA to go soft on the accused.

Now the Hyderabad NIA officers who wanted to appeal against grant of bail to Aseemanand have been refused permission by their top brass in Delhi.

Thanks to the NIA, Swami Aseemanand, a self-confessed bomb blast mastermind, now roams free. Other Hindutva-inspired terror accused like Sadhvi Pragya Thakur are soon expected to follow suit.

Unlike Prof Saibaba, who opposed the displacement of the poor by big projects and the Maruti trade unionists, who stood against the contract system that foreign investors love, their terror acts pose no threat to the dominant “development” narrative of the ruling classes.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/saibaba-aseemanand-maruti-suzuki-judiciary-hindutva-terror/story/1/16614.html

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

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.

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”.

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.

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.

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.

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.

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

Special 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.

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.

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.

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.

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