Let justice take its course


The Gadchiroli court verdict in the Saibaba case shows disdain for established law and judicial principles.

On March 7, 2017, the Sessions Court of Gadchiroli, Maharashtra, pronounced a life sentence on Delhi University professor GN Saibaba and four others, and a 10-year imprisonment on another. Many are now questioning the wisdom of handing life sentences to persons who had no accusation of violence against them and had, at the most, been charged only with sympathising with and supporting the Maoist movement. The security agencies, in their turn, attempted to justify the court’s verdict through press statements that painted Saibaba as a “mastermind of many arsons, murders, and abductions”. The Maharashtra Anti-Naxal Operations (ANO) office even seemed to criticise the Supreme Court for granting him bail earlier, stating that “72 offences were registered during this period [when Saibaba was out on bail], which included the murder of two policemen in explosion and encounters, 15 other murder cases and other offences”.

Many in the mainstream media were quick to pick up the ‘mastermind’ angle, without pausing to ask how a person with 90 per cent disability, who spent much of the period in question in Delhi hospitals, could direct violent operations 1,200 km away in Gadchiroli.

Some did point out that the ANO statement conveniently did not specify whether the cases were registered against the professor after his release on bail in April 2016; 72 registered crimes “masterminded by Saibaba”, but without a single FIR in his name!

What’s more worrying is when trial court judges start buying into this narrative of “violent resistance directed by ‘white-collar naxals’ in far-off metros”.

The 827-page judgement of Suryakant S Shinde, the principal district session judge in Gadchiroli, displays a reasoning that runs counter to the maxim “Not only must justice be done, it must also be seen to be done.”

‘Not harsh enough’

In para 1,013, the judge says, “Hence, merely because the accused no.6 Saibaba is 90% disabled is no ground to show him leniency and though he is physically handicapped but he is mentally fit and he is a think tank and high profile leader of banned organization CPI (Maoist) and its frontal organization RDF and by the violent activities of accused nos. 1 to 6… the situation of Gadchiroli district from 1982 till today is in paralyzed condition and no industrial and other developments are taking place because of fear of naxal and their violent activities. Hence, in my opinion, the imprisonment for life is also not a sufficient punishment to the accused but the hands of the Court are closed (sic)…”

The judge makes it plain that he personally feels the accused deserved the only harsher sentence available in Indian law — death by hanging. The law restricts death sentence to only the rarest of rare cases when aggravating circumstances outweigh mitigating circumstances. Shinde, however, offers no convincing basis for his assertion in favour of a death sentence.

His mention of “violent activities of accused nos. 1 to 6” is without basis, as there is nothing in the charges, chargesheet or judgment that alleges (let alone proves) this charge against any of the accused. There is also no evidence linking the development of Gadchiroli, or lack of it, to naxal violence.

These assertions are merely the judge’s personal opinions, which have limited weightage under the Indian Evidence Act. They would, however, certainly have served to prejudice him in favour of conviction and the harshest possible sentence. This bias is also seen in the rest of the judgment, particularly during the crucial evaluation of evidence.

Rules bypassed

The case rests heavily on the authenticity of the electronic evidence — memory chips, hard disks, pen drives and the like — shown to be seized by the investigating authority. As it is easy to tamper with electronic evidence, the law is stricter on its admission. The essential requirement of a certificate under section 65B of the Indian Evidence Act has been bypassed under the pretext that “prosecution has proved beyond reasonable doubt that at no point of time there was any alternation (sic) or manipulation in the electronic data contained in electronic gadgets.”

A trial court cannot waive the statutory requirement, but Shinde just brushed it away.

Biased evaluation

Eighteen of the 23 witnesses examined were police or government officials, and most others were professionalpanchas(apanchais a person called to witness and check the truthfulness of a police action), who had been used by the police in several cases, and included one who was a home guard and another employed to clean the police station. Among the most crucial witnesses was Jagat Bhole, thepanchfor the search-and-seizure at the Delhi University home of Saibaba. Illiterate, he had been specifically picked by the police over the numerous professors and students present there at the time — possibly because they felt he would be more amenable to manipulation.

Bhole, however, told the court that “the police kept myself and Saibaba out of the house and locked the door from inside while the search was going on”. This obviously rendered thepanchnama(a record of the search) unreliable, as it violated the provisions for searches and evidence gathering.

Judge Shinde got around this by simply rejecting this part of the witness’s evidence. His logic: “It is to be noted that this witness is illiterate witness. He cannot read and write English language and his cross examination was held in whole day that too by eminent lawyer having standing practice of more than 25 years and this witness might have frightened because of Court atmosphere.”

But the judge did not use the same yardstick for other crucial evidence — for instance, the confessional statements of accused 1 and 2. Both young Madia and Gond tribals, they retracted their confession after alleging that it was extracted from them in police custody through torture and intimidation.

Judge Shinde chose to disbelieve the complaint of ill-treatment and used an unbelievable leap of logic to assert that Marathi, the language in which the confession was recorded, was known to the accused. He states that the confession was retracted through an “application in Hindi language and… accused no.1 Mahesh and No.2 Pandu also signed in Marathi language”. Since Hindi, Marathi and even Gondi (the mother tongue of the accused), all use the Devanagari script, it is meaningless to conclude that the “accused were well conversant with Marathi and Hindi” from their Devanagari signatures.

Contrast this with the confessions of Swami Aseemanand, a blast accused, that were made well after he was out of police custody and in jail. His subsequent retraction was accepted, leading to his acquittal.

Going bananas on evidence

The court uses the flimsiest of reasons to convict Prashant Rahi and Dilip Tirki. It says, “Finding of incriminating article i.e. Yatri card (Art.126) shows that accused no.4 Prashant Rahi was going from Delhi to Raipur and finding of newspaper with him which was usually used by the members of CPI (Maoist) and its frontal organisation RDF as identification code to recognize each other shows that he was going to forest area to meet underground naxals as alleged by the prosecution.”

The court arrived at this conclusion based on an article by award-winning Hyderabad journalist C Vanaja, who once reported how she established contact with Maoists by using a particular newspaper and bananas as identification codes. This article was shown to have been found on Saibaba’s computer and used as evidence at the trial — a bizarre reasoning that was considered sufficient to grant Rahi a life sentence.

Saibaba has been the joint secretary of the Revolutionary Democratic Front (RDF). In trying to establish that it is a terrorist organisation under the Unlawful Activities (Prevention) Act (UAPA), the judgment attempts to take upon itself powers that only the Central Government has. Its logic: “there is photo of accused no.6 Saibaba and there appears a meeting under the head of banner “Release all political Prisoners unconditionally”… Saibaba is addressing to the people. This shows that accused no.6 Saibaba is the active member of banned organization.”

Similarly, elsewhere it states, “Slogan “Lal Salam” is used by naxals and members of banned organisation RDF and hence it is clear that accused no.6 is a member of banned organisation CPI (Maoist) and its frontal organisation RDF and inciting the people with slogans Lal Salam Lal Salam.”

The Supreme Court has often held that the implementation of procedural provisions must be more rigorous in the case of special and stringent laws such as UAPA. In a similar case involving writer-activist Sudhir Dhawale and eight others, the Gondia Sessions Court had acquitted all on the grounds, among other things, of the non-fulfilment of provisions under the UAPA. The State appealed against the acquittal, but was rejected outright by the Nagpur Bench of the Bombay High Court. In an order passed just seven days after the Gadchiroli judgment, the HC gave prime importance to the sanction order showing compliance with the mandatory provisions of law, such as an independent review within the time limit, and that the sanctioning authority was aware of material that would constitute an offence punishable under the UAPA.

Overlooking basic principles

In contrast, the Gadchiroli court has been lenient to the prosecution, holding that the relevant sections of the UAPA were non-mandatory, and non-compliance did not vitiate the proceeding. Another important provision of law was given the short shrift.

In a criminal case, the proof should be beyond reasonable doubt — that is, no other explanation can be derived from the facts except that the accused committed the crime. A civil trial, on the other hand, simply requires a preponderance of probabilities — that is, its version of facts is more likely than not the correct version, as in personal injury and breach of contract suits.

At several points the judgment has dispensed with the principle of proof beyond reasonable doubt. On the other hand, it seems to be applying the civil trial principle in what is clearly a criminal proceeding. “According to the defence, the newspaper Sahara dated 19-8-2013 was found in possession of accused no.3 Hem Mishra and newspaper Lokmat dated 20-8-2013 was found in possession of accused no.2 Pandu Narote. This shows that accused were arrested on 20.8.2013. However, merely because the accused persons were found in possession of newspapers dated 19-8-2013 does not mean that they were arrested on 20-8-2013. According to the prosecution, newspaper is used as identification code by the members of banned organization… Hence, the version of the prosecution appears to be more probable than the defence”.

Similarly, the principle of adverse inference — “evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it” — has been turned on its head. The prosecution admitted to obtaining the CDR (call details report) of accused 1 and 2 but withheld it despite the defence asking for it to be produced, as it would prove false the prosecution’s arrest story (according to the prosecution, the accused were arrested along with JNU student Hem Mishra on August 22, 2013, from Aheri, whereas the defence contends they were picked up from Ballarshah on August 20 and their phone SIM were removed. The CDR would have settled the question and, had the defence been found right, proved the falseness of the very FIR on which the whole case is based).

Judge Shinde blames the defence for not obtaining the CDR on their own, overlooking the fact that such information can be shared by a telecom company only on the orders of a court. The judgment abounds with numerous such transgressions. The defence plans to appeal before the Nagpur Bench of the Bombay High Court at the earliest, given the fragile health of Saibaba.

Apart from his disability and cardiac and orthopaedic problems, Saibaba is suffering from acute pancreatitis, for which he was hospitalised in Delhi for four days just ahead of the judgment. Amnesty International has raised the issue of the alleged denial of medical treatment to him in jail.

Saibaba the human rights activist, however, is more pained by the misinformation shrouding the case.

In a letter to his lawyer from prison, he says, “We are deeply pained by looking at the false and defamatory and negative propaganda stories in newspapers… targeted for exerting pressure and influencing public opinion, in turn seeking to affect the legal process.”

Several civil liberties activists and organisations have raised their voice against the judgment. Two members of the European Parliament from Spain and Germany have written to the European Commission, calling for measures to ensure “all legal guarantees are respected under the highest human rights standards for him and the rest of prosecuted people”. Saibaba and his co-convicts can only hope that, whatever be the views on the bench, they will not be permitted to stand in the way of justice.

By Arun Ferreira and Vernon Gonsalves

(This article was published in the Business Line print edition dated April 8, 2017)

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Sexual violence by armed forces rising, and Modi wants to celebrate Women’s Day?


The more immediate and ongoing tragedy is occurring in Chhattisgarh’s Bastar district.

The yearly sarkari tokenism around International Women’s Day reached a new low with Prime Minister Narendra Modi’s proposal that this year “only women parliamentarians should speak in Parliament on March 8”.

The stark emptiness of the proposal was provided by the context across the country, where attacks on women and the suppression of their voices have seen no let up and there have hardly been any real steps to remedy the situation.

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The harsh irony is most sharply evident in the conflict zones of the country, where it is the government’s forces themselves which have been accused of the worst type of atrocities against women.

Around the time the prime minister was making his suggestion for Women’s Day celebrations, the Kashmir Valley was resounding with protests marking 25 years of awaiting justice for the victims of the Kunan-Poshpora rapes of February 23, 1991. The case against Rajputana Rifles personnel lies pending before the Supreme Court. Manipur’s 12-year-old Manorama rape and murder case against Assam Rifles personnel similarly remains pending before the courts.

Sharp spurt in sexual assaults by police

The more immediate and ongoing tragedy is occurring, however, in Chhattisgarh’s Bastar district. There, the paramilitary forces, police and state-sponsored vigilante gangs have over the last few months been on a continuous campaign of loot, sexual molestation and rape.

After a fact-finding visit to the area, Nandini Sundar, professor of Sociology at the Delhi University reports: “Between October 19-24, 2015, 40 women of Peddagelur, Budgicheru and Gundam villages were sexually assaulted, beaten, and stripped by the security forces; two women were gang raped. On January 12, six women from Kunna village in Sukma district were sexually assaulted and between January 11 and 14, 13 women were gangraped in Belam-Nendra village in Bijapur district. In all these cases, the rapes were accompanied by extreme physical and verbal abuse, and the looting of their homes.”

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Violence on women and other human rights violations in Bastar by the security forces most often remain unrecorded and unnoticed by the outside world. This time, however, it was somewhat different.

Over the past three years, first with the moving in of three women lawyers of the Jagdalpur Legal Aid Group (JagLAG) in 2013 and later with the release and return of adivasi political prisoner and activist, Soni Sori in 2014, the villagers of Bastar have been better able to organise themselves to try and reclaim their legal rights and even to protest atrocities through mass mobilisation, often directed at forcing the police to register crimes in this regard.

In 2015, the noted scholar Bela Bhatia and Scroll.in journalist Malini Subramaniam also moved to Bastar. They, too, played a significant role in taking the stories of blatant law violations and repression and torture of the local population to the outside world.

A repressive police machinery is always allergic to the truth. Soni Sori’s leadership through padayatras and demonstrations, JagLAG reports of false implication and incarcerations of hundreds of innocent tribals, Bela Bhatia’s push for registration of FIRs against rapist cops and Malini Subramaniam’s posts on forced surrenders and numerous other unlawful practices all posed a threat to the unquestioned criminal acts of the law machinery.

Forced eviction of activists, lawyers and journalists

At first, indirect threats to fall in line and not oppose the police were given. When these did not have effect, the next step was to apply the brand of Naxal or Maoist on the local population and launch open campaigns against them. Bar Associations under BJP leadership passed resolutions against the lawyers as outsiders and tried to prevent them from practising in the courts.

Organisations propped up by the police with names like Samajik Ekta Manch, Nagrik Ekta Manch, Vikas Sangharsh Samiti, started demonstrating and issuing threats and even resorted to acts of violence like stone-throwing on Malini’s house and car.

The next step was outright eviction. Landlords of the places where the JagLAG lawyers, and where Malini were staying were called to the police station and forced to serve notice on their tenants. They were thus forced to pack up and leave. Soni Sori was told that she did not have proper title to the house she was staying at.

When she did not back down, she was attacked and had some chemical substance applied to her face. With continuing threats to her life, she had to be taken outside Bastar for treatment.

The police under the leadership of Bastar region inspector general, SRP Kalluri, has announced Mission 2016 during which he promises to crush Naxalism in Bastar. This has seen a rapid rise in forced surrenders and false encounters, besides rapes and molestation of women.

Whole villages are being forced out with all young men being detained and tortured in police camps until they agree to fake surrenders. As pointed out earlier in these columns, the stage has already been set for aerial attacks, which could result in even thousands of deaths of Indian citizens.

As Mizoram this week commemorates the 50th anniversary of the bombing of Aizawl – the last time that the Indian Air Force (IAF) was used to attack the people within the country’s borders – it seems that similar operations may form part of Kalluri’s Mission 2016.

When Sri Lanka had launched a similar assault in Mullaitivu in the last phase of its war on the Tamil Tigers, it had been called a “war without witnesses”. Sri Lanka had first ensured that all journalists, human rights activists and observers were thrown out of the area. The similarities in the recent evictions from Bastar carry grim portents.

Bastar’s mothers and daughters in danger

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As the dirty war deepens, women will likely face the major brunt. The record of the past few months shows that governments that thrive on slogans of “Bharat Mata ki Jai” have had no compunction in plotting and perpetrating sexual assaults and violations of the matas and daughters of Bastar. As the days grow darker the need to bear witness to the darkness and stand in opposition will be felt all the more. It is in this context that the absence of the activists recently ejected will be felt all the more.

The evicted activists have, however, vowed not to give up. The JagLAG members, in an interview, have said that though they have now been forced out of Bastar, they want to go back. Though severely scarred by the chemical attack, Soni Sori has declared that she will not bow down.

On the eve of International Women’s Day, she is even scheduled to address the students of JNU, some of who may well be inspired to rise in her support. The state, by clamping down, may actually be giving birth to new forces in opposition to it.

by Vernon Gonsalves and Arun Ferreira

http://www.dailyo.in/politics/womens-day-bastar-narendra-modi-chhattisgarh-naxalism-maoism-soni-sori-jaglag-rape/story/1/9423.html

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


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

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

Bombay of the 1970s

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

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

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

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Fracturing of a city

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

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

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

The Yakub we saw in prison

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

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

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A hero’s funeral and a community feeling of victimhood

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

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

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

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


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

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

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

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

Court’s lead actor – A victim in real life

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

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

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

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

Tarikh pe tarikh in Dantewada Court

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

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

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

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

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

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

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