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when the bail application came up for hearing, but after the bail application was disposed of, those facilities are withdrawn.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

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How Salwa Judum is making a comeback in Chhattisgarh


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

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

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

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

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

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

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

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

Karma: They think their whole livelihood will be destroyed.

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

Karma: You know they won’t leave quietly.

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

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

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

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

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

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

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

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

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

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

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

By Vernon Gonsalves and Arun Ferreira

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

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

Prisoners in their own country


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

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

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

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

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

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

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

Allahabad lawyer killing shows how khaki is above the law


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

 

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

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

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

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

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

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

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

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

By Arun Ferreira and Vernon Gonsalves

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

Kerala cops’ campaign to criminalise dissent


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

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

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

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

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

UAPA provisions criminalise thought!

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

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

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

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

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Resistance to Repression

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

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

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

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

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


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

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

Law of Sedition and Other Colonial Laws

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

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

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New Rulers, Same Laws

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

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

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

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

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

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

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