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Archives for : October2018

Flawed Koregaon Bhima Judgment

Justice Chandrachud’s soaring dissent is an appeal to the brooding spirit of law

All fundamental rights are vital but if forced to prioritise, liberty must stand first. Judges must bend over backwards to exercise that bit of extra discretion to uphold liberty, more than any other virtuous goal of our Constitution. Sadly, the Supreme Court (SC) in its majority judgment in Koregaon Bhima (KB) fails this acid test while Justice Chandrachud’s soaring dissent is likely to find a resounding echo in a future majority.

As i was the lead (and losing) counsel for the petitioners you are entitled to discount everything in this article, ascribing it to a poor loser. But my sense of dissatisfaction arises not from the loss but simply because the core and dispositive issues argued were not even addressed, even by way of rejection, by the majority.

Additionally, two press conferences by the police flashed 13 letters selectively insinuating guilt, but the letters were not placed in SC nor mentioned in the transit remand. No fresh FIR was filed regarding the PM assassination plot and, as the dissent tellingly points out, “no effort has been made by the ASG to submit that any such investigation is being conducted in regard to five individuals (petitioners). On the contrary, he fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the PM. Nor does the counter affidavit make any averment to that effect”. None of this is mentioned in the majority.

The alleged materials against arrestees were gathered from third persons and the PM plot was based upon letters sent or received by one “Comrade R”. A final trial court judgment after full trial convicted Saibaba and returned a judicial finding that Comrade R was in fact none other than Saibaba, who was admittedly always under police/ judicial custody from months before the allegedly inculpatory letters were written. How a convict under custody could write or receive letters plotting to assassinate the PM remains a grand mystery which the majority does not even note. One letter appeared to be an obvious fabrication since it has over 17 references to words ascribed in Devnagari using Marathi forms of grammar and address, while the alleged author Sudha is non-Marathi.

Law mandates the presence of at least one independent witness who is a respectable member of the locality where the arrest is made, whereas the two Panch witnesses in the KB case are admittedly employees of the Pune Municipal Corporation who admittedly travelled with the police from Pune to Faridabad! Both this and the fact that 99.99% of the over 50 prior criminal cases collectively attributed to the arrestees had led to discharge, acquittal or quashing are ignored. The majority does not even note the total absence of evidence showing membership of CPI (Maoist), much less activity by arrestees on behalf of it and ignores the many judicial precedents appointing SITs and holding direct petitions in SC to be maintainable.

It oversimplifies by addressing only two points, viz whether the investigating agency should be changed at the behest of the five accused and whether a SIT should be appointed. As is obvious, even these two issues are opposite sides of the same coin. The other issues relating to locus had vanished as the arrestees themselves had filed applications directly in the SC.

Ironically, this sole issue on which the entire operative part of the majority (from paras 20 to 37) is based also does not arise for the simple reason that the petitioners had repeated in writing and oral arguments that they wanted neither exemption from investigation nor transfer from or substitution of the investigating agency. An SIT was only asked for supervisory purposes to lend independence and credibility to the investigation, which would continue to be done by the state prosecuting agencies.

By contrast, the dissent is masterful in its language, eloquence, comprehensiveness and soaring spirit. It will, in times to come, indubitably satisfy the prophetic words of a former US SC chief justice: “A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.”

Each one of the relevant probative issues listed above (and ignored by the majority) has been painstakingly addressed in the dissent. The judicial precedents cited by the petitioners have been approbated while state citations have been carefully and convincingly distinguished. The dissent sees judicial interference on such core issues of liberty as the “constitutional duty of the court so that justice is not compromised” and “not derailed”. It treats a fair investigative process as “the basic entitlement of every citizen faced with allegations of criminal wrongdoings” and “dissent as a symbol of a vibrant democracy (where) voices in opposition cannot be muzzled by persecuting those who take unpopular causes.

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History less known: Kasturba’s role as an independent woman and a freedom fighter in her own right

By Nandini Oza*
Even the most deserving of women do not find a place that equals their worth in history. Kasturba is one such woman whose contribution to India’s struggle for freedom has been exemplary, and yet, it has not received the recognition it deserves. Kastur Makhanji Kapadia was born in the year 1869, the same year and in the same town of Porbandar in Gujarat as Gandhiji. In fact she was older than Gandhiji by a few months.

This is Kasturba’s 150th birth anniversary year too. Popularly known as simply Ba (mother, in Gujarati), passed away while incarcerated in the Aga Khan Palace in Pune by the British.
Kasturba’s life journey was extraordinary, particularly in the context of the era she was born in. It was way back in the year 1913, when not many Indian women ventured out of home that Kasturba was sentenced to three months of hard labor in South Africa for having led a team of satyagrahis. Gandhiji was not a part of the team she led. Kasturba was already a mother when she passed the harsh three months in Martizburg jail.
About this episode, Manmohan Kaur in his book, ‘Women in India’s Freedom Struggle’, writes: 
“The women in the Phoenix Farm could not stay back. They joined the struggle. Mahatma Gandhi did not tell his wife Kasturba Gandhi about this programme, but she overheard the conversation and came to Gandhiji and said: ‘I am sorry that you are not telling me about this. What defect is there in me which disqualifies me for the jail?…Gandhiji replied thus: ‘I would be only too glad if you went to jail but it should not appear at all as if you went at my instance.’ She assured her husband: ‘You may have nothing to do with me if being unable to stand jail I secure my release by an apology. If you can endure hardships and so can my boys, why can’t I? I am bound to join the struggle…”

Kasturba was jailed several times thereafter and played an important role in the social and political history our country. Yet, popular books on history of the time either have no reference to her contribution or have cursory references to her role. Even where her contribution is referred to in some detail, it is often her role as a subordinate to Gandhiji that is highlighted. It is only when one digs further that her role as an independent thinking woman and a freedom fighter in her own right comes to light more clearly.
The other issue is, and is rightly put by Ved Mehta in his book titled, ‘Mahatma Gandhi and his Apostles’, while referring to two standard bibliographies of Gandhian literature:

 “…One gets the impression that practically everyone who ever spoke to Gandhi and could put pen to paper has written something about him, and by now his every thought and action has been worked over and preserved by his editors, biographers and bibliographers”.
In comparison, about Kasturba he writes:
“…Gandhi’s wife was neglected in life and seems to have been all but overlooked after death.”
It would be important for historians to focus and examine the available records and primary sources to place Kasturba’s contribution to the country first and foremost as an independent woman and a freedom fighter in her own right, and then her role in the context of her extraordinarily challenging life as the wife, in the shadow of her husband, the Mahatma himself.
It has happened that along with Gandhiji’s political growth, Kasturba’s growth happened too and Gandhiji did help her step out of home to struggle for freedom and against injustice. But soon, she came into her own and became independent in many different ways. The times also demanded that she become self-reliant as Gandhiji, when not in jail, was touring extensively, often leaving Kasturba to fend at home, and the ashrams and even the political struggles.
This conclusion is not difficult to draw from some of the records I quote as examples here.While Mahadevbhai Desai’s diaries in Gujarati in twenty three volumes focus primarily on events around Gandhiji, one gets glimpses of the firebrand freedom fighter that Kasturba was. I highlight some nothings from the diary here (Volume 1, year 1932):
“Yesterday there was news that Ba had gone on a tour of the Bardoli Taluka (in Gujarat). Therefore I [Mahadevbhai ] said, ‘This time Ba will get six months (in jail).’
“Bapu (Gandhi) said, ‘It will not be a surprise if she gets class ‘C’ (jail) and is sentenced to hard labour.’
“Just then the same news appeared. On getting the news, Bapu’s joy knew no bounds. He laughed aloud. He then spoke only this much: ‘Were they not ashamed to sentence a sixty year old woman to hard labour!’”

At another place, Mahadevbhai notes (Volume 17, year 1923):

“Kasturba had promised that, ‘if the soldiers are ready then I will most definitely join you.’ This is because she finds living outside while Gandhiji is in jail worse than death. I have faith that keeping Kasturba in the lead, the army of people going to jail will get Gandhiji released.”
Kasturba’s contribution in addressing meetings especially of women, fund raising, running the ashrams where she and Gandhiji resided, spinning, engaging in political discussions etc during the struggle for freedom has been phenomenal. This comes to light when one reads some of the primary and secondary sources available to us. In the book, ‘Women in India’s Freedom Struggle,’ Manmohan Kaur writes:
“Kasturba… presided over meetings and also toured the various States propagating for the success of the movement. Presiding over the Gujarat Provincial Conference she condemned untouchability and preached Swadeshi… when it was reported to her that her son Devdas Gandhi has been arrested, she took the news saying: ‘Only two of my sons have gone to jail, but twenty thousand sons of mother Hind are in jail; how can I bemoan my lot!’”
In the book, “The Untold Story of Kasturba, Wife of Mahatma Gandhi” Arun and Sunanda Gandhi with Carol Lynn Yellin write:
“In 1938, spontaneous uprisings against arbitrary rule by local princes began erupting across India…But not until protests broke out in Rajkot did the crises reach its climax… on February 3, 1939, she [Kasturba] was summarily arrested and…was taken to Tramba to be confined… [Later] Ba was not only released from solitary confinement, but her companions Maniben Patel and Mridula Sarabhai, detained separately in Rajkot jails, were brought to Tramba to share her captivity in the royal bungalow…”
Further:
“For my grandparents, the year 1933 became a cycle of arrests, jails, fasts, releases and re-arrests…soon Kasturba was arrested again – the sixth time in just two years- and given another six-month sentence to be served in Sabarmati Jail. Apparently the British now regarded Mrs. Gandhi, due to her own unique ability to involve women in the independence movement, as an even more threat to law and order than Gandhi himself…”

The influence that Kasturba wielded on women during the freedom struggle is corroborated in Mahadevbhai’s diaries when he writes in reference to the Nagpur Satyagraha (Volume 18, year 1923-24):
“…The end of Nagpur order will be on August 17. It is to be seen what the Government does. If the new order is not passed, defeat will have to be accepted. If there is a new order, the struggle will continue. And now the new struggle will begin with Kasturba in the lead. By sending women, will the youth remain behind?”
Reading Sushila Nayar’s book titled, ‘Kasturba – A Personal Reminiscence’, one can understand the diverse roles that Kasturba performed and the qualities that she had. I quote:
“I again went to the Ashram during the summer vacations. My brother (Gandhi’s secretary Pyarelal) and Bapu at the time were in jail as a result of Salt Satyagraha. Ba was touring from village to village seeing workers, visiting the victims of police excesses in hospitals, and in their homes and talking to the people to infuse courage and enthusiasm into them…
“In 1935, I went to Wardha…I saw Ba labouring from morning till night at all sorts of domestic chores, visiting the sick, talking to workers…I happened to go to Wardha again in November the same year. At that time Ba’s youngest son Devdas Gandhi was ill. He was suffering from a nervous breakdown. The patience and deep understanding with which she looked after him was extraordinary… she took him to Shimla…my brother (Pyarelal) has told me that her motherly love and commonsense did more for Devdas than all the doctors combined. Her son recovered and she came back to Gandhiji.”
It is not just about looking after their four sons, but when it came to Laxmi, their adopted daughter who also is often absent from books on Gandhiji, Kasturba played an important role after her initial reluctance in accepting her. Recounting her experience in jail in 1932, Laxmi has said in her interview:
“…we were taken to Sabarmati jail where Kasturba was also locked up and since she was an A class prisoner she often passed on to us some bread and butter. The food was horrible so we made do with the supply and we spent 17 days in this jail after which we were transferred to the Yervada jail in Poona. Kasturba protested saying that we were still young and should not be transferred from one jail to another. But no one listened to us and we landed in Yervada where we met Sarojini Naidoo who was serving her sentence there. She was in the next cell and so she took care of us like Kasturba did…”
It was also because Kasturba was a threat to the British and because of the influence she wielded on the masses, particularly women that she too was arrested and jailed along with other leaders during the Quit India movement in August 1942. She was past seventy years of age and yet she was picked up along with Sushila Nayar to be brought first to the Arthur Road jail in Mumbai. About this arrest Sushila Nayar writes:
“The news of Gandhi’s arrest spread like lightening speed. People started pouring to the Birla House and Ba was kept busy talking to someone or the other the whole day…Bapu was to address a public meeting at Shivaji Park that evening. Ba announced that she would address the meeting instead of him and people were thrilled to hear it…the car that was to take us to the meeting was commandeered by the police and was used as a prison van to take us- Ba and myself and my brother to the Arthur Road Prison… ‘They won’t let us out alive this time,’ she [Kasturba] spoke at last…”
The conditions in Arthur Road Jail were appalling and Kasturba, who was already unwell, had no proper medical care. Later they were shifted to the Aga Khan Palace where Gandhiji had been jailed along with Mahadevbhai Desai. It was here that Kasturba witnessed the passing away of Mahadevbhai, their close aide. She also endured Gandhiji’s twenty days’ fast in captivity. All of this finally took a toll on Kasturba’s already failing health and she breathed her last in British custody on February 22, 1944, never to see her country free for which she had struggled powerfully.

It is essential that we commemorate the life of Kasturba too, along with Gandhiji on their 150th birth anniversary.
*Independent researcher and activist, formerly with Narmada Bachao Andolan. This blog first appeared in http://nandinikoza.blogspot.com/

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India’s Unforgivable Laws

Several unconstitutional laws in India repress its citizens. A reading list from the EPW Archives.

As the second branch of government, the purpose of the legislature is to make laws that uphold the fundamental rights of all citizens. However, when met with extraordinary circumstances, the Indian legislature has made laws that have not only neglected fundamental rights, but also contradicted them. Often the use of these draconian laws has continued well after the circumstances in which they were created have passed. But they have endowed the state with excess powers to violate constitutionally guaranteed rights at both the individual and community level.

There is a need to conceptualise these laws in terms of what they purportedly combat, and what they actually combat. Usually, these unconstitutional laws are designed with a protectionist rhetoric against a threat (which could be real or imagined). But what they actually protect is the ruling dispensation’s ability to bypass human rights.

The most recent example of this is the use of the National Safety Act (NSA) to arbitrarily arrest 160 Muslim men in Uttar Pradesh, in the one year that Yogi Adityanath has been its chief minister. In August, the Unlawful Activities (Prevention) Act (UAPA) was used to arrest five human rights activists, by accusing them of being “Naxals” operating against the state.

Through EPW’s archives, we look at how India’s draconian laws are sometimes mobilised to serve partisan interests.

1) ‘National Security’ Laws to Suspend Fundamental Rights

In 2000, the NSA was used in Uttarakhand to target two civil rights activists Jasodhara and Abhijit Dasgupta, who ran the NGO, Sahayog. They had published a booklet, AIDS aur Hum, promoting sexual health that scandalised the local community. From Harsh Sethi’s article, which documents this incident, it is apparent that here, the use of the NSA was not politically motivated. It was used because the booklet was seen as explicit and perceived as a moral offence to society. The NSA simply served as an excuse to humiliate the activists and hold them to account in the name of public decency.

Even a cursory examination of the actual sequence of events, makes clear that despite the widespread dismay, even anger, at the ‘foolishness’ of the concerned NGO, what is today being termed ‘public protest’ has been carefully organised and orchestrated. For nearly a month before the offices of Sahayog were ransacked, both staff and trainees at their field office roughed up, and leading activists arrested, the local media in the region had been carrying on a campaign against the group, targeting in particular the booklet.

Perhaps more sinisterly, NSA has been deployed against those who have protested against gross human rights violations committed by the military and the government. In 1992, Niloy Dutta, Parag Kumar Das and Ajit Bhuiyan were arrested in Guwahati under unspecified sections of the NSA. It was alleged that they were disrupting the process of peace-building in Assam and were involved in “anti-national” activities that threatened the sovereignty of the country. They were released eight weeks later after the arrests were met with much protest. They were the founding members of Manab Adhikar Sangram Samity (MASS), which had been compiling evidence of military atrocities in the state for the past year.

MASS had accumulated incontrovertible evidence of army atrocities and flagrant violations of human rights by the armed forces during operation Rhino. It had sent three groups fully equipped with audio and video gadgets to three zones of the slate to compile cases of army atrocities. Braving severe restraints imposed by the army and civil authorities, these groups had succeeded in recording cases of arrest, torture, molestation, rape, killing and so on. With painstaking effort they compiled a comprehensive 65-page report enlisting the cases of army atrocities, which included 13 cases of death in army camps, seven cases of rape, as many as 120 cases of brutal torture, 139 cases of illegal detention and 63 cases of indiscriminate army raids in villages, unlawful public beatings and torture, all with specific dates, places and blow-by-blow accounts of the incidents, fully substantiated by physical evidence. They also recorded the most brutal incidents on films. Most damaging of all was a video cassette which had recorded the atrocities on women much of which cannot be written and shown in public.

2) Detaining Kashmiris in the Name of ‘Public Safety’

The Public Safety Act (PSA) is another act that has been used indiscriminately in Kashmir to facilitate preventive detentions of “suspected militants”, especially since Burhan Wani’s death in 2016. The PSA has been called a “lawless law” because of the arbitrary nature in which it is used. In his article published in May 2018, Gaurav Bhawnani pointed out that in the 130 days following Wani’s death, over 500 PSA detention orders were issued to clamp down on the turmoil in Kashmir. Bhawani argues that the arbitrariness of the act is best illustrated by human rights activist Khurram Parvez’s arrest.

The scope for arbitrary detentions under the PSA is tremendous. On an average, each person has been identified as having committed offences under three first information reports (FIRs). However, most of these FIRs are “open FIRs.” The police merely record that a certain incident has occurred, and even if some names are recorded, the FIR also states “and others.” Therefore, any person can be arrested under these FIRs as having been involved in the protests. The scope for misuse is best highlighted by Khurram Parvez’s case. The police dossier listed four FIRs as the grounds for his arrest. However, he was not named in a single one of these FIRs. He was just one of those “others” to have been arrested as a consequence. Another case that highlights the scope of misuse is that of Abdul Rasheed Bhat. As per the records of his government job, he was present at work at the time of the offence, but was named under all three open FIRs listed in his PSA dossier.

3) ‘Anti-Terrorism’ Laws to Repress Dissent

After the November 26, 2008 terrorist attacks in Mumbai, the Unlawful Activities (Prevention) Act, 1967 was amended to become India’s main anti-terrorist law — merely four years after the Prevention of Terrorism Act (POTA) was repealed. However, some of the provisions introduced in the UAPA’s amended version were almost replicated from POTA, and broadened even further,  wrote Ravi Nair. The provisions for arrest under the amended UAPA were as vague as they were in POTA. Nair wrote that the key problem with the UAPA is that it fails to understand the multidimensional nature of terrorism, and what makes acts of terrorism distinct from other forms of crime.

The 2008 UAPA Amendment extends the maximum period of pre-charge detention to 180 days, if after 90 days the public prosecutor can show that the investigation has progressed but more time is needed. This standard is inadequate. A judge considering the extension of pre-charge detention should consider whether there is adequate evidence against the accused, justifying his/her continuing detention, not merely whether the investigation is progressing.

The UAPA has been misused rampantly, and several controversial arrests have been made under it. For instance, the arrest of Delhi University professor G N Saibaba, and his comrades, on the allegation of being Naxals. Susan Abhraham’s 2017 article details the case against Saibaba and his consequent imprisonment based on flimsy evidence. She also points out various procedural lapses.

The major charge of the prosecution is that the accused in this case were waging war against the country and supporting the ideology of a banned organisation, CPI (Maoist). Anybody can easily understand that to “wage a war” somebody needs weapons and none of the six accused were shown as possessing any weapon on them when arrested, nor did the police find any in searching their houses. Supporting an ideology, even if the same ideology is adhered to by a banned organisation, cannot be a crime. Such a verdict would not have been possible without the extreme provisions found in the draconian anti-terror UAPA.

In June 2018, in an article titled Urban Maoist, Anand Teltumbde wrote that the “draconian Unlawful Activities (Prevention) Act (UAPA) gives the police unaccountable authority to arrest, slap any number of charges, and ensure that the arrested rot in jail as the law meanders through the courts”. He was writing in defence of Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson – all Dalit activists –  who were arrested under the UAPA, allegedly for being associated with the “Elgar Parishad”. The state insinuated that they were Maoists or Naxals who engaged in inflammatory speech that eventually precipitated the violence at Bhima-Koregaon. Incidentally, in August, Teltumbde himself faced arrest under the UAPA, ostensibly for being an “urban naxal”.

While the search warrant clearly mentioned “Bhima–Koregaon,” the chief minister stated that they did not have anything to do with Bhima–Koregaon. On 6 June, the police arrested four of them and Mahesh Raut, a noted social activist and member of the Prime Minister’s Rural Development (PMRD) fellowship who after passing out from the Tata Institute of Social Sciences (TISS) has devoted his life to the tribals of Gadchiroli. The police made out a story that the Elgar Parishad was organised and funded by the Maoists, which was duly publicised by the media ignoring the repeated explanation of Kolse Patil that he along with Justice Sawant was its convener, that they did not spend any money, and that none of the arrestees had much to do with it.

4) Terrorism Laws to Target Minorities and Marginalised Groups

In 2003, activist Gautam Navlakha wrote, “A law is bad in itself when it overturns all notions of natural justice on its head and allows the executive to apply the law at its subjective discretion.” Navlakha was discussing the Prevention of Terrorism Act (POTA), which in February 2003 was used to arrest 28 Dalit and Adivasi agricultural workers in Uttar Pradesh, who were allegedly Naxalites. Some of those arrested were later shot in an encounter killing. Navlakha outlined how the “preventive” nature of POTA allows the law to be misused.

Like its predecessor TADA the promulgation of POTA falls in that category of law where persecution is embedded in it. Let us recall that TADA’s pathetic conviction rate of 1 per cent obscured its wide use as a preventive detention measure where more than 76,000 persons were detained for years on end destroying lives, and ruining their kith and kin…POTA has established itself as a piece of legislation that is meant to terrorise precisely those sections of the population which are vulnerable and are victims of gross injustices and therefore the maximum numbers of those charged under POTA are landless or land-poor dalits and adivasis accused of being Naxalites, Kashmiris fighting against oppressive Indian rule or Muslims accused of working in tandem with Pakistan’s ISI.

Writing in 2004, Ujjwal Kumar Singh argued that “like all extraordinary laws, it [POTA] bypasses due process, so that abuse/ misuse is woven into its provisions”. But he also identified a larger trend which suggests that POTA has been used surreptitiously to restructure centre–state relations away from federalism.

POTA epitomised an executivisation of law, giving the executive extraordinary powers of initiating procedures and investigations under the act. Subsequent developments have shown a further deepening of this executivisation through (a) the judicial affirmation of the procedures laid down in POTA, and (b) further augmentation of the process by authorising a review process as a quasi-executive and quasi-judicial function.

POTA was preceded by the Terrorist and Disruptive Activities (Prevention) Act, 1985 or TADA. When it was repealed a decade later, a report in EPW said, “The abuse of TADA is built into the law itself. By replacing normal law and procedure it eats into the foundations of democracy.” According to the report, by mid-1994, 76,166 people had been arrested under TADA but less than 4% were actually found guilty.

Today it is widely accepted that TADA has been thoroughly misused. Large numbers of innocents have been arrested. Protests against the Act have also grown. In this situation every political party has suggested some change in the Act to curb large-scale arrests. However, it is not so widely accepted that the provisions of TADA are themselves responsible for such a state of affairs.

https://www.epw.in/engage/article/indias-unforgivable-laws

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