How political dissenters end up languishing in jails without bail


Deliberate delays and denial of bail has amounted to sentencing without trial.

Activists of the Kabir Kala Manch, perhaps one of the best known progressive cultural troupes of Maharashtra, heaved a sigh of relief on January 3 when three of their members finally walked out of jail after three-and-a-half years. A Supreme Court bench granted bail to Sagar Gorkhe, Ramesh Gaychor and Sachin Mali.

The apex court’s bail order pointed out that though the state had told the Supreme Court in July 2016 that the trial would be completed within six months, it had, till January 2017, only partially completed the examination (leave aside cross examination) of just one of the 147 witnesses it proposed to examine. Such a rate of progress in trial would have meant a lifetime of waiting for its completion. The bench ordered their release.

Method in the madness of trial delays

While it has become customary to blame the backlog of cases in courts for these seemingly crazy delays in trial, there is at the same time a method in the madness that is quite clearly at work, particularly when in comes to political dissenters.

The delays are often the fruit of a deliberate dalliance between police and prosecution to postpone service of summons, hold back witnesses, neglect bringing the muddemaal or physical evidence to court and other such means to ensure that the trial process is effectively paralysed.

This strategy is deployed because the prosecution is aware that most cases against political detainees are weak and often falsely fabricated by the investigating authority and likely to end in acquittal. These “political” cases are normally instituted under harsher laws like the Unlawful Activities Prevention Act (UAPA) and the Public Security Acts of various states. Such laws allow arrests on vaguely defined charges with insubstantial evidence. They also prescribe bail norms which render it difficult for courts to grant bail.

Inordinate delays then become the prosecution’s means for imposing a “sentence” of long years, which entails rotting in jail as an undertrial without bothering to go through the hassle of obtaining a conviction. Thus, though the accused are finally found to be innocent, the judgment offers small comfort for someone who has already spent almost the maximum possible sentence as undertrial.

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Inordinate delays then become the prosecution’s means for imposing a ‘sentence’ of long years rotting in jail as an undertrial without bothering to go through the hassle of obtaining a conviction.

Protection for the perpetrators

Such tactics, while being criminal, neither hold consequences for the investigator or the prosecutor; nor are there any redressal for the victim. A classical case in this regard was related to the Akshardham Temple terror attack of 2002. Six accused in the matter remained in custody for 12 years before being finally acquitted in 2014 by the Supreme Court. The judgment, quoted then in DailyO, explained how the case had been fabricated and the accused framed through concocted statements.

The accused then filed a writ petition in the Supreme Court asking for redressal and compensation for the years lost. Despite the unequivocal observations of the 2014 SC judgment indicating that the accused had been falsely implicated, the same court refused to either punish the perpetrators or compensate the victims. If, in a case which the SC itself has held to be fabricated, there is not scope for recompense, there is obviously nothing much the judicial system can offer by way of righting such wrongs committed by the police-prosecutor combine.

Laxity of the courts

In fact it often seems that the bench too is, unwittingly or otherwise, part of a system that ensures that political dissenters are “punished” without trial. In the case of the KKM members too, though the SC granted bail, almost half of their period spent in custody was during the pendency of their application before the same court.

In another similar case of a political prisoner from Maharashtra, Sudhir Dhawale, editor of the magazine Vidrohi, the Nagpur Bench of the Bombay High Court rejected bail, but ordered a timebound trial within a period of six months — only to extend this period three times over, while each time rejecting Sudhir’s bail. He was finally declared not guilty — but only after serving a “sentence” of 40 months as an undertrial.

Reluctance to grant bail

The irony is that, even where the duplicity of the investigating agency is prima facie quite apparent, the courts have been reluctant to exercise their power to grant bail. A recent case is that of the team of lawyers and human rights activists from Telengana who, in December 2016, were on a fact-finding mission to Chhattisgarh to probe accusations of police atrocities in Bastar. Though they were arrested in Telangana they were taken across the border to Chhattisgarh so that they could be charged under the severe Chhattisgarh Special Public Security Act. The basis shown for arrest was the purported seizure of demonetised notes of one lakh, which they were allegedly taking to “help” naxalites in Bastar.

Despite the illogicality of the argument of lawyers carrying demonetised notes from Telangana to naxalites in Bastar, despite the notes being obviously planted and despite there being no law or rule in force prohibiting the possession of one lakh of demonetised notes, the bail applications of the team members were denied first by the magistrate’s court of Sukma and then by the sessions court of Dantewada. The Dantewada court felt that it was premature to grant bail.

The option of approaching the Chhattisgarh High Court in Bilaspur is not only cumbersome but also, considering the delaying tactics of the prosecution, likely to be long drawn out. The Telangana lawyers, research scholars and journalists who are part of this team will now have to prepare themselves to eke out a few months, if not more, in Bastar’s jails — a “sentence” being imposed without any realistic case at all.

Death sentence by encounter

But perhaps they should consider themselves lucky. In their very own state of Telangana, the police have taken the lead in taking this practice of delivering prison sentences to their logical conclusion. On April 7th 2015, five Muslim prisoners, who were on the verge of completion of their trial where they expected acquittal, were killed in cold blood while being taken to court. The Telangana police probably decided that they deserved not acquittal but the death sentence. They executed accordingly.

A similar dubious “encounter” killing of eight undertrial accused of the Students Islamic Movement of India whose trial was reportedly approaching acquittal was executed by the Bhopal police on October 31 2016.

Despite widespread protest by human rights organisations, the political establishment has indicated that those who have carried out these killings enjoy its support. Pehaps an indicator of the forms of justice delivery in the days to come.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/chattisgarh-maoists-bastar-kabil-kala-manch-political-dissenters-fake-encounters-cases-trial-delay-jail/story/1/15045.html

How the State makes Muslims pay for Hindutva terror


The court discharged nine accused in the 2006 Malegaon blasts case, which was an indictment of former ATS chief KP Raghuvanshi.

KP Raghuvanshi, former chief of Maharashtra’s anti-terrorism squad (ATS), was understandably absent from the media glare around the Mumbai special MCOCA (Maharashtra Control of Organised Crime Act) court’s order of April 25, 2016 that discharged nine Muslim accused from all charges in the Malegaon bomb blasts case of 2006.

The retired additional director general of police had led the ATS investigation of the Malegaon blasts as well as the Mumbai train blasts of 2006. Just a few months earlier, in September 2015, he had been prominently present in the MCOCA court at the time of the delivery of the train blasts case judgment, handing out sound bites and interviews to the electronic and print media alike. This time around, however, he was nowhere near the court.

Just three days before the court discharged the nine accused in the Malegaon case, Raghuvanshi had appeared in a lengthy exclusive interview with Times Now’s Arnab Goswami on prime time television (see video below) defending his investigation and implication of the nine accused and expressing confidence in the trial court.

Goswami, in his typical media trial fashion, had even delivered a verdict that he “believed” Raghuvanshi’s version. However, when the actual trial court ruling came, Raghuvanshi was unavailable even to the Times Group. Times of India reported that he was “not available for comment, despite repeated attempts by TOI“.

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ATS involved in serious offences

Raghuvanshi’s reticence obviously stemmed from the court’s systematic demolition of his chargesheet and its drawing of conclusions which pointed categorically to Raghuvanshi and his men being involved in a string of actions that actually amounted to serious offences under the Indian Penal Code (IPC).

The ATS case rested on the confessions extracted from eight of the accused, one of whom was targeted to be made approver against the rest. When the case was handed over to the National Investigation Agency (NIA) the confessions were all shown to be obtained under duress, making them worthless as evidence under section 24 of the Indian Evidence Act.

It was found by the NIA that the confessions in most cases could not be true as there was conclusive proof that the accused were actually at places other than they were shown to be in the confessions. Accused number two, Shabbir Ahmad, was actually in judicial custody at the time he was shown in the chargesheet to be participating in actions relating to the blasts. The obtaining of such false confessions, under duress, is an offence punishable with imprisonment up to seven years under section 195A and section 330 of the IPC.

The other important evidence proffered by the ATS was the matching of soil samples from the blast site and the godown of accused number two which was shown to also contain RDX. The NIA verified this and found “that the panchas/witnesses who are shown on the panchanama of lifting soil were not present at the time of collecting the soil samples but present at some other place” (para 59 of the MCOCA court order).

Such a discovery which has been upheld by the court is an extremely serious finding amounting to an offence committed by Raghuvanshi and his investigating team of fabricating evidence with intent to procure conviction for a crime, which is punishable under section 194 of the IPC with life imprisonment. It also raises questions regarding the source of the RDX shown, pointing to possible offences under explosives and terror laws. This would require a separate investigation.

The court also debunked the core of the ATS’ case to be “highly impossible and improbable” and “not a digestible story”. The ATS showed that the accused were making bombs and holding key conspiracy meetings in the godown of Shabbir, accused number two, when Shabbir himself was in custody in a case under investigation by the ATS. Few things could be less believable.

The judge also found the “basic foundation or the object” behind the blasts shown by the ATS to be “not acceptable to a man of ordinary prudence”. He didn’t believe the tale that a Muslim group aiming to stir up Hindu-Muslim riots had targeted a Muslim religious occasion rather than the Ganesh idol immersion that had just preceded the Muslim holy day. He concluded that the nine Muslim accused were innocent and had been made scapegoats by the ATS and therefore ordered their immediate discharge from the case.

Discharge is not justice enough

The discharged accused welcomed the court’s pronouncement with tears of relief and prayers of thanksgiving. When one of the authors (Vernon) spent time with them in jail in 2007-’08 they had come across as simple men who had wrongly been framed.

Though they had been shown to be leading activists of the banned Students’ Islamic Movement of India (SIMI) and operatives of the Lashkar-e-Taiba (LeT), they did not show any signs that they shared the ideology and approach of these organisations.

They spent their time in jail trying to be of some help to their fellow prisoners. Shabbir had some knowledge of acupressure and his skills were constantly on call – even by the jail staff. Sridhar, one of the co-accused, had his arthritic knees attended to by Shabbir.

Vernon got advice on management of bleeding piles from accused number five, Farogh, when he met him in prison. Farogh was one of the two unani doctors implicated in the case. Their jail-time simplicity seems to have continued outside and most of them have not asked for anything more than the present court judgment.

But would the MCOCA court judgment suffice? On the day after the judgment, India Today TV’s Rajdeep Sardesai tweeted, “No outrage here? no hashtags/trends? No ‘framing’? Who will give these men back their 10 years?”

Others have called for compensation and punishment of the officers responsible. These calls for justice are correct and will probably go before the higher judiciary.

Deeper conspiracy of the higher-ups

Justice in a courtroom, however, cannot address a problem that goes somewhat deeper and extends much higher than Raghuvanshi and his men. Malegaon in 2006 was after all only one in a series of bombings of Muslim targets during 2003-2006, that included Parbhani, Purna, Jalna in Maharashtra, Modasa in Gujarat, Hyderabad, Ajmer and Delhi and also the attack on the Samjhauta Express.

Most of these were falsely pinned on innocent Muslim men, thus leaving the field open for the actual culprits to continue their terror plans. It was only after the cracking of the Malegaon blasts case of 2008 during the eight-month tenure of slain ATS chief Hemant Karkare that further investigations were made, which made it clear that all these were the handiwork of Hindutva-inspired modules engaged in a deep conspiracy with links to the higher echelons of the Rashtriya Swayamsevak Sangh (RSS) and even the state apparatus. As the links started reaching higher there was a definite slowdown in the investigations during the United Progressive Alliance (UPA) rule.

With the coming of the BJP in Delhi, there has been a systematic endeavour to subvert the cases. Investigators, prosecutors and witnesses have been pushed to toe the Centre’s line. The cap was blown on this by the senior public prosecutor in the Malegaon 2008 case, Rohini Salian, who disclosed how she had been told by the NIA to go soft on the pro-Hindu group Abhinav Bharat that is believed to have been a part of the conspiracy.

She was later removed as prosecutor. This plan of going “soft” on the Hindutva terror accused seems also to go hand-in-hand with going “hard” on Muslim accused. This was on display in the discharge of the nine Muslim accused a few days back, and the court order itself referred to the NIA doing a volte face. It had shifted from a “no evidence” stand of 2013 to a “no discharge” stand in 2016.

With such directions from the top to the premier agency investigating these blasts, it should come as no surprise that most of the witnesses are turning hostile in the trials of Hindutva accused and there is only a remote chance of any of them getting convicted. This fixing of the court trials is then being used in recent months to run parallel media trials where the principal accused, particularly Lt Col Prasad Purohit, are beind declared innocent.

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Thus the support to these terror accused, which was relatively discreet in the UPA days, is now on open display. It emanates from the highest levels of government and the state apparatus and from significant sections of the media and civil society.

It is the type of support that aims at nurturing “our” Hindutva terror gangs that will supposedly keep the “other” communities in check. It is the type of support that the Pakistani ruling classes displayed for years to “their” terror operatives until things got totally out of hand. It will require more than courts of law to handle this malaise, if we are not to tread the path traversed by our neighbour.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/hindutva-malegaon-blasts-narendra-modi-mcoca-ats-kp-raghuvanshi-ipc-hemant-karkare-muslims-simi/story/1/10339.html

Prison hunger strikes are part of struggle for azadi and democracy


When the cases are false, the authorities try all means to extend the period of the trial.

Naxalism, Odisha, Prison Reform

It is a battle for democracy and justice, a battle for azadi. It does not have the sound and lights and the cadence of the catchy “azadi” sloganeering of the current student agitations.

But that does not make it less of a fight for rights and freedoms than any of the other struggles that have captured the imagination of the country and its media over the last few months.

It is a silent, grim, almost wordless fight that is going on right now in Odisha, behind the walls of Bhubaneshwar’s Jharpada Special Prison.

There are no marches, no speeches, just a bare statement, by seven prisoners, asking for implementation of the most basic fundamental rights granted by law and by the country’s highest constitutional court – the right to a speedy trial and the right to be produced regularly from prison in order to be present at one’s own trial.

Those raising these demands are undertrial prisoners, mostly tribals and Dalits, implicated in cases of Naxalite violence. But the only violence in this struggle is the violence caused to their own bodies by their chosen mode of protest – hunger strike.

As these words are being written, the ongoing hunger strike of the political prisoners in Odisha, which began on March 30, 2016, is in its third week. This is the stage when the medical condition of the person on hunger strike worsens dramatically and it becomes difficult to even stand.

Two of the seven hunger strikers have already been shifted to hospital. The authorities, however, are not showing any signs of acceding to any of the demands. In fact, the delays in trial are mainly owing to deliberate non-appearance of police witnesses on several dates.

Since the cases are false and mostly end in acquittal, the authorities try all means to extend the period of trial so that the prisoners remain as long as possible in jail as undertrials. The police are in no mood now to give up this strategy.

The experience of the Odisha political prisoners is nothing new. Arun Ferreira (one of the authors of this article) had himself undergone a 27-day-long hunger strike along with 12 other political prisoners at the Nagpur Central Prison in 2008.

The demand of the hunger strike then too was a mere implementation of the law. They were demanding a stop to the illegal practice of re-arresting political prisoners at the prison gates immediately on their acquittal and release in earlier cases.

A recent example was the two-month-long hunger strike in August-September 2015 by 26/11 Mumbai attacks accused Zabiuddin Ansari at the Arthur Road Prison in Mumbai. He was protesting his illegal solitary confinement and non-production in court.

Thus the demands of these and numerous other strikes of political prisoners over the years have mostly been to merely secure implementation of the law and to stop violations of rights guaranteed under the Constitution.

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Prisons follow colonial standard operating procedure for hunger strikes

It is, however, rare that the prison and police authorities accede to the demands of political prisoners. The standard practice is to turn a deaf ear to even the most reasonable of demands while ensuring that the prisoners on hunger strike are kept completely cut off, not only from the society outside, but also from the other prisoners. During the present Odisha prison struggle, the striking prisoners have been denied all visits – even by close relatives or defence lawyers.

Meanwhile, while keeping each hunger striker separate, all attempts are made to dupe or tempt them into giving up the strike. If such attempts fail, the next method is force-feeding. This standard operating procedure was laid down during British rule and is still followed in all the prisons of the country. It is mostly successful in breaking a hunger strike without acceding to the demands.

In spite of the low possibility of the administration agreeing to their demands, political prisoners still very often resort to hunger strike. As Arun has explained, hunger strike is often the only option to get basic human rights in prison. This was also the approach of the revolutionary prisoners during the struggle against British rule.

Bhagat Singh launched several such hunger strikes during his period in jail. It was during one such hunger strike in 1929 that the revolutionary Jatin Das gave up his life after going 63 days without food. His death anniversary on September 13 is commemorated to this day by political prisoners in jails across the country. His protest was against the discrimination between Indian and European prisoners and the inhuman conditions in prisons. Soon after his death, some changes came about.

Hunger strikes in prisons increase the democratic space

Even if demands are not immediately agreed to, the mere assertion and determination involved in a hunger strike in prison is an announcement to those who rule that the political prisoner is not one to take things lying down.

This in itself often manages to open up a democratic space where none existed and forces a re-working of the equations of power in jails. When such struggles are repeated by the same prisoners and by future batches of prisoners, the administration is forced to give in to some, if not all the demands.

The results of such repeated struggles can be seen in better prison conditions in places where political prisoners have fought for their rights, such as Punjab, Telangana and Andhra Pradesh. Struggles have even forced the administration and judiciary to ensure better implementation of the principle of bail as the rule and jail as the exception.

In most states, however, prison conditions continue to be extremely inhuman with the deliberate violation of most constitutional guarantees. It was Russian novelist Fyodor Dostoyevsky who said: “The degree of civilisation in a society can be judged by entering its prisons.”

By that yardstick, the civilisational standard of our society would be pretty low. But all is not bleak. Struggles in prisons, like the present one in Odisha, are growing. Many of these struggles may not achieve their immediate demands. But they will nevertheless make their own significant contribution to the ongoing struggle for azadi and true democracy.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/prison-reform-odisha-naxalism-mumbai-attacks-bhagat-singh-maoist-azadi-british-rule/story/1/10131.html

Letter to Nitish Kumar from Bhagalpur Prison’s death row


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

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

Dear Nitish Kumarji,

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

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

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

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Death sentence for dalits, acquittal for upper castes

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

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

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

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Justice for oppressed castes

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

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

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

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

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

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

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

Krishna Mochi,

Nanhe Lal Mochi,

Bir Kuer Paswan and

Dharmendra Singh

Prisoners on Death Row, Bhagalpur Central Prison, Bihar.

Yakub Memon, the 7/11 train blasts and Collective Conscience


BannerThe Maharashtra government’s overeager announcement of July 30 as the date for the 1993 Mumbai blasts accused Yakub Memon’s hanging even before his curative petition in the Supreme Court was decided has been met by a host of divergent voices. Some, while pointing to the Memon’s voluntary surrender, have opposed his hanging, even calling it a travesty of justice. But such voices have been drowned by a number of others calling for an execution without delay – mostly basing themselves on an argument sanctified in various judgements of the Supreme Court – that in such cases it is only the death penalty that can satisfy “the collective conscience of society”.

But collective conscience has an ambiguous arithmetic. While the 257 dead in the March, 1993 blasts in Mumbai – for which Memon is to be hanged – demand retributive judicial action, the 1,000-odd killed in the riots just a couple of months earlier have been quietly laid to rest without a single person being punished – and society’s conscience seems none the worse for this. The political parties, media and other manufacturers of this collective conscience are obviously not that intensely affected by the terror of pogroms by the majority community.

Studies show how this concept of collective conscience, when applied to criminal law, is highly subjective and flexible, and differs widely depending on the views and whims of the judges involved. This undermines the principles of objectivity and neutrality that are supposed to govern the operation of the criminal justice system. Conviction and sentencing then does not depend solely on evidence brought before the court during a trial. If the preconceptions of a particular judge lead him to consider an offence as particularly heinous, he is likely to decide that conviction and a harsh sentence is the only way to satisfy the conscience of the society. This then leads to the conclusion that capital punishment has to be imposed on someone – anyone.

Delay in delivery of the 7/11 judgement

The next major case of this kind that is due for judgement is the one relating to the Mumbai train blasts of July 11, 2006 – also known as the 7/11 case. When the trial in this case was closed and judgement reserved on August 19, 2014, the special public prosecutor in the matter told the press that the judgement would come in a month. Almost a year has passed without a judgement being delivered and the latest expectation is that it will come by July-end or early August.

The delay is understandable considering the difficulties before the judge. On the one hand, the horrific nature of the blasts brings the pressure of the collective conscience-makers to bear on him to somehow ensure that capital punishment in sufficiently large numbers is imposed. On the other hand, the large holes in the prosecution’s case on account of false implication of the accused by the investigation team makes his task a tricky one.

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False implication, fabricated story, torture and forced confessions

Many of the 13 accused in the case were office-bearers, activists and supporters of the Students Islamic Movement of India (SIMI) who were first arrested at the time of the initial ban on SIMI in 2001. During the five years upto the July, 2006 blasts they were under constant surveillance, while regularly attending the court cases lodged against them for membership of SIMI. Some among them even had to regularly report at local police stations as part of the conditions of bail granted to them in those cases. Interviews conducted with some of them, available on YouTube, detail the close watch and scrutiny they were under right till the time they were implicated in the train blasts case. The cases against them and their attendance at police stations is a matter of record. It is thus clear that it was quite impossible for such highly-watched individuals to have been part of a plan to make and plant bombs in the city. But being easily and quickly available to the Anti-Terrorist Squad (ATS), which was eager to show some results and arrests in the case, it did not matter that these were not the real culprits. Anyone would do anything to satisfy the collective conscience.

The proceedings that followed have been related by Manisha Sethi in her article, “Dr NARCO and Other Stories from KAFKA Land“, which is included in her book, Kafkaland: Prejudice, Law and Counterterrorism in India. Using material from terror cases in various parts of the country, she describes the modus operandi of torture, narco analysis and forced confessions to produce chargesheets. In the 7/11 case the application of MCOCA (Maharashtra Control of Organised Crime Act) made forced confessions before police officers admissible in court and these became the basis of the chargesheet.

An important challenge to this chargesheet came from within the police force itself. The Mumbai Crime Branch, then under the leadership of Rakesh Maria, the present Mumbai police commissioner, came out with its own version, which completely contradicted the ATS’ version. While investigating the Maharashtra links to the Ahmedabad and Surat blasts of 2008, they produced another confession that showed it was another group, which had nothing to do with the 13 arrested accused, that planned and executed the train blasts. The ATS refused to use this confession as it would show the ATS’ original story to be false.

The lengthy police custody remands needed by the ATS for torture and forced confessions were obtained by claiming that they needed to interrogate the accused in relation to their mobile phone call data records (CDR), which they claimed would prove their guilt. However, when the chargesheets were finally filed, they did not contain any CDR whatsoever. When the accused asked for the records, the ATS first refused to give them, then said they had lost them and then told the telecom companies to charge the accused an exorbitant sum running into several lakhs of rupees. It was only as a result of orders from the Bombay high court that the CDRs were handed over to the accused, which conclusively disproved the ATS’ story.

Considering these and other major contradictions and holes in the prosecution’s case, it is only just and reasonable to expect that the judgement will declare the ATS’ story to be false and order that the accused be acquitted and released. But will the blindfolded goddess of justice be able to remain deaf to the loud cries for blood being raised by many political parties, media channels and other manufacturers of collective conscience and deliver a true and independent verdict? The coming days and weeks should provide the answer.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/yakub-memon-simi-1993-mumbai-blasts-mumbai-train-blasts-mumbai-crime-branch-rakesh-maria/story/1/5124.html

How Maharashtra robbed Dr Saibaba of his rights


BannerUntil police can be compelled to respect basic human rights, we will continue to remain far removed from the democracy we claim to be.

“I hope you are doing well, despite the fact that you are all in a larger penitentiary, as Uncle Sam would call it. I have been in a smaller enclosure here for the last ten months. My wish to join you back in the larger prison-house has been thwarted once again. I am sure you all understand the anxieties of your friend’s existence in the claustrophobic sealed concrete enclosure of an ‘anda cell’ behind seven heavy and gigantic gates.” Gokarakonda Naga Saibaba’s words (written over three months ago from the confines of the Nagpur Central Prison) carry that gritty tone characteristic of the man ‘guilty’ of supporting and participating in sundry issues and causes of the poor and dispossessed in various parts of the country over the last three decades.

Dr Saibaba, a Delhi University Professor in English, with 90 per cent permanent physical impairment of his lower limbs, was abducted on May 9, 2014 from a Delhi road by the Maharashtra police and has since been behind bars. His story is a telling commentary on the biases of a criminal justice system that readily releases convicted film-stars and politicians but insists on incarcerating those accused of committing the ‘crime’ of supporting or believing in thought contrary to the ruling ideology. Despite many Supreme Court rulings and the recent Kerala High Court assertion that ‘being a Maoist is no crime’, the reality is that it is just this accusation that keeps Saibaba and hundreds of others like him in prison for years on end.

Excuses for Denying Prof Saibaba his Rights

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In the last thirteen months, Saibaba has had his bail rejected four times – thrice in the Sessions Court and once in the High Court. Despite his severe disability and his rapidly deteriorating medical condition, the State has not only vigorously opposed bail, but also gone out of its way to deny him proper medical care. Whenever Saibaba has applied for bail on medical and disability grounds, the prosecution has adopted the tactic of ensuring that facilities were provided in the jail when the bail application came up for hearing, but after the bail application was disposed of, those facilities are withdrawn.

It was these tactics leading to a rapid deterioration in Saibaba’s health that prompted the bench of the Chief Justice of the Bombay High Court to take suomoto cognisance of the matter and pass orders on June 17, 2015 directing that Dr Saibaba should be taken from jail to a private hospital within 24 hours and be allowed to be accompanied by his wife and brother and a court-appointed doctor, where he was to be kept for a week until further orders of the court. Despite the detailed order of the High Court, the prison authorities, under the directions of the police anti-Naxal operations (ANO) department, did not implement the court’s directions and no one except the police were allowed to be with Saibaba when, as a formality, he was taken to the hospital for an hour and returned back to jail. Though Dr Saibaba is in jail custody and the court directions were to the jail and medical authorities, it was the ANO’s Inspector General of Police, Ravindra Kadam, who was directly supervising operations and even giving medical updates to the press on behalf of the doctors. It can now be expected that the doctors’ earlier report submitted to the court, which showed he required hospitalisation, will now, under police pressure, be changed to show some miraculous recovery. The long weary battle of Saibaba to salvage his health and reclaim his liberty is likely to continue its uphill course.

His letter relates an earlier experience when the Chief Medical Officer (CMO) of Nagpur was questioned by the Sessions Court why his treatment constituted primarily of diclofenac tablets. The CMO explained that this was because all physically handicapped persons were affected by excruciating pains for which medical science had found no answers except pain-killers. All this when Saibaba was known to have a number of medical problems, including stones in the kidney, heart problems, neurological and orthopedic issues, which were continuously being aggravated by the jail conditions.

Meanwhile the prosecution sees that the trial is deliberately delayed so that Saibaba can remain imprisoned as long as possible. Aside from the first production in court, there has been no attempt to take him to court – on the plea that the police lack a low-carriage vehicle suitable for the physically challenged. This was also a reason earlier given at an earlier hearing for not even taking Saibaba to the hospital, until a strict order from the court forced the authorities to bring such a vehicle, which had always been in their possession.

Have your say. You can comment here.The High Court is now seized of the matter and has again on June 22, 2015 taken serious note of non-compliance by the state of its earlier directives and has passed further orders in this regard. But for a Dr Saibaba, long languishing in Anda dungeons, this perhaps would bring scant comfort. One could not fault him if he were to be a bit cynical of the outcome of such orders – he has after all seen the casual contempt with which the authorities have treated many such judicial orders thus far. Until ways can be found to compel the police to respect basic human rights and the rule of law, we will continue to remain far removed from the democracy we claim to be.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/dr-saibaba-gadchiroli-police-high-court-maoist-anti-naxal-operations-naxalites-human-rights/story/1/4555.html

When even the Supreme Court’s voice drowns behind prison walls


Infringements of the rights of detenus are the norm rather than the exception in the country’s jails.

VVIP convicts and prisoners like Jayalalithaa, Salman Khan and Sanjay Dutt often receive special treatment leading to an outcry that prisoners are being treated with kid gloves by the criminal justice system. But, for every “special” jail inmate, there are thousands of prisoners in the country’s jails whose basic rights are constantly trampled upon.

Over forty years ago, a three-judge bench of the Supreme Court made it absolutely clear that “convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess”. In 1981, the court repeated, “The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration.”

However, despite the rulings of various constitutional courts down the years, jail administrations and police throughout the country continue to follow procedures that operate on the basis that prisoners deserve no human rights – perhaps assuming that detenus are “less human” or “non human” beings. Infringements of everyday rights are the norm rather than the exception. Here, we depict some of the most common breaches of rights in detention:

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Routine Torture

Torture in police custody as well as in jail custody is practiced on a daily basis throughout the country, even leading to custodial death. The Supreme Court in 1996 declared, “The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditibility of the Rule of Law and administration of criminal justice system”. It instituted guidelines to prevent torture, but the practice continues.

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Habitual Handcuffing

It was way back in 1980 that the Supreme Court laid down, “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Article 21.”

In 1996, the apex court again reiterated, “We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner – convicted or undertrial – while lodged in a jail anywhere in the country or while being transported or in transit from one jail to another or from jail to court and back.” However, despite the law being stated so unequivocally, the sight of chained, roped and handcuffed prisoners is common in almost all the states.

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Trial in Absentia

Section 273 of the Code of Criminal Procedure, 1973 provides that “all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused”. However in many areas, the police plead a lack of personnel and do not provide escort guards to take the undertrial prisoner to court.

To avoid repeated adjournments, the advocate representing the prisoner is compelled to apply for “exemption” from appearance of the accused and the trial takes place without the accused knowing anything of what has transpired in court. This most basic legal right to be present during one’s own trial is thus denied.

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Irrational Restrictions on Mulaakats

One of the few interactions that a prisoner has with the outside world is the “mulaakat”, when relatives and friends are allowed to visit the inmate in jail. The Supreme Court has held, “Considered from the point of view also of the right to personal liberty enshrined in Article 21, the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article.”

It thus ordered that jail administrations be liberal in allowing visits of family and friends. This is, however, rarely implemented. Poor and indigent families from remote and backward areas are particularly affected. They are often denied meetings on some technical ground even after travelling long distances and undergoing great expenses.

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Prolonged Solitary Confinement

Section 73 of the Indian Penal Code (IPC) specifies, “… the court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, … ” Section 74 further rules, “In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, …” Jail manuals of all states have similar restrictions on solitary confinement and separate confinement. However, the use of prolonged solitary and separate confinement, sometimes for years on end, continues unchecked in all jails.

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Ban on Reading and Writing

Jail administrations arbitrarily decide what the inmates should and should not read. Some prison bosses, owing to a fear of petitions and complaints against them, even impose a complete ban on writing materials. Such bans go against the writ of the Bombay High Court, which ruled that a detenu could receive any periodical or book which can be lawfully obtained and read by the general public, and of a full bench of the Kerala High Court that held that a prisoner was entitled to receive “Maoist literature”.

As regards writing material, a five-judge bench of the Supreme Court, way back in 1965, held that it was lawful for a prisoner to write and even publish a book from jail. However, such judgements remain on paper while the unwritten bans are rigidly applied in all jails. For many centuries the Manusmriti kept the Shudras away from the Vedas by prescribing that “the ears of him who hears the Veda are to be filled with (molten) lead and lac”. Today’s prison superintendents forcibly keep many books away from the inmates under the pain of prison punishments.

By Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/supreme-court-jayalalithaa-salman-khan-sanjay-dutt-rule-of-law-ipc-crpc/story/1/3884.html

Why CCTVs in India won’t put an end to torture, abuse and crime


Banner 01Technology may provide some assistance, but it is only the pressure of civil society that can bring about real change.

Last month, when Union HRD minister Smriti Irani strode out in anger from the Goa Fabindia outlet that had CCTV cams peeping at the trial room she used, reactions ranged from Twitter snigger to outright outrage. Complaint was made, crime was registered, arrests were effected – all serving to draw needed attention to the voyeuristic potential and other insidious implications of a little piece of technology that has been creeping continuously into more and more areas of everyone’s lives. Aside from stores and malls, the closed circuit camera has been steadily stealing into more and more areas of day to day existence, offering itself as a panacea for a host of ills varying from shoplifting to rape. The AAP has even promised, as part of its manifesto for Delhi, to set up ten to 15 lakh cameras throughout the city in order to enhance “women’s security”. The march to a surveillance society seems inexorable and all this is happening without the least debate on whether it infringes on the right to privacy, which has been recognised as part of the right to life and liberty guaranteed under Article 21 of the Constitution.

Thus, at the same time as Smriti Irani was being violated by the peeping toms of Fabindia, the women prisoners of Byculla prison in Mumbai were forced to fight back the attempt by the jail administration to install cameras in all the living areas of the women’s barracks and cells. The cameras, which were supposedly a response to the escape by five male prisoners in Nagpur, were to be put up in the areas where the women change clothes and where, with little or no fans during summer, the women are compelled to remain in minimum clothes when confined within the stone walls of the barracks, especially during the nights. Naturally not wanting to offer them up as spectacles for those who use the offices where the screens were to be set up, the women refused to allow the cameras to be set up. The authorities however remained adamant despite the inmates pointing out that they could not be made into objects of lewd interest of the prison staff. The administration only retreated after a protest hunger strike by a political prisoner, Angela Sontakke.

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The whole incident only served to display the lack of any controls or regulation on the use of CCTV in all areas. In a case of hidden cameras put up in jail cells in Washington, USA, the city was sued for damages. The jail staff would watch, like some porn video, the women detenues changing and then make sexualised comments to them regarding their bodies and habits. In some Indian prisons e.g. in Gujarat, CCTV has been introduced inside barracks and such behavior by prison staff is common, but no steps have been taken to remove the cameras from living areas.

The main arguments given for introducing cameras in prisons are control on contraband, prevention of violent attacks and torture and deterrence to escape. But, since in most cases the prison staff themselves have been known to be involved in the offences, it is hardly likely that a CCTV mechanism managed by them would be effective in preventing crime. During the period when CCTV was introduced in 2008 in Arthur Road Central Prison in Mumbai the staff who normally supplied drugs would ensure that their transactions took place in the blind spots where the cameras did not reach.

Torture and corporal punishment of inmates, though forbidden by law, is a daily fact of life in prison life. Since it is perpetrated by the authorities themselves, a CCTV system offers no solution at all for this crime. An enquiry conducted under the supervision of the Bombay High Court in 2008 concluded that the authorities of Arthur Road Prison in Mumbai had used excessive force against some Muslim political prisoners resulting in several cases of grievous hurt and broken bones. Though this attack on the prisoners was conducted in full view of the CCTV cameras then in operation, the prison administration refused to hand over the record and claimed that the cameras had malfunctioned at the time of the attack. Similarly the escape of prisoners in Nagpur in 2015 was disclosed to have been done in collaboration with the jail staff itself. CCTV which is now being installed there will be manned by the same staff. The security that the system is supposed to ensure is thus a mere illusion.

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Have your say. You can comment here.Similar is the project to install CCTVs in all police stations as a means to prevent torture and custodial deaths. The Bombay High Court and Madras High Court have recently issued such directives. However a police force used to torture does not need to use the lock-up of a police station for torture. When Arun Ferreira, one of the authors of this piece, was tortured in 2007, it was done in a room in the Police Gymkhana. Even if a CCTV system were to be in place it would not have recorded the crime. Technology may provide some assistance, but it is only the pressure of civil society that can bring about real change.

By Arun Ferreira and Vernon Gonsalves

http://www.dailyo.in/politics/cctv-solution-crime-indian-prisons-smriti-irani-fabindia-jail-torture-atrocity-human-rights/story/1/3606.html