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Why Open Prisons Are The Solution To India’s Overcrowded Prisons

Since 2014, murder convict Deepak Lalaprasad, 33, has been living in an open prison in Udaipur, having conducted himself well for 10 years in a conventional prison. One of 24 inmates at the open prison, Deepak now runs a stall near the Udaipur central bus depot. As many as 1,127 prisoners in 29 open jails in Rajasthan work as accountants, school teachers, domestic help and security guards.

Udaipur: Kalu Tulsiram*, 35, a bespectacled, serious looking man, was brewing tea at a stall near the Udaipur central bus depot on a recent monsoon day. It was close to noon, a busy time for the tea stalls lining the main road. A few metres away, Deepak Lalaprasad*, 33, heavier built and more relaxed in demeanour, was helming another stall, waiting for a customer.

Casual passersby or customers could never guess that these two men were convicts serving life sentences under Section 302 of the Indian Penal Code of 1860–for murder.

Since 2014, Kalu and Deepak have been living in an open prison in Udaipur, having conducted themselves well for 10 years in conventional prisons. Inmates at this prison are permitted to stay with their families and go out during the day to earn a living. As many as 1,127 prisoners in 29 open jails in Rajasthan work as accountants, school teachers, domestic help and security guards, even those serving time for murder.

Prisoners’ rooms at the Udaipur open prison. Inmates at this prison are permitted to stay with their families and go out during the day to earn a living.

Not only do these prisons present an early opportunity for prisoners’ reform and rehabilitation back into society, they also cost less in terms of money and staff, a 2017 report on Rajasthan’s open prisons said, based on which the Supreme Court in May 2018 ordered state governments to fully utilise and expand the capacity of open prisons as well as set up more open prisons.

Why open prisons

Conceptually, open prisons were developed to rehabilitate prisoners who had almost completed their sentence. In the earliest open prisons developed in the U.S. in the 19th century, prisoners nearing release were sent to work as labourers to evaluate their behaviour. In India, the earliest open prison established in 1953 in Uttar Pradesh housed prisoners who were requisitioned to construct a dam over the river Chandraprabha, near Varanasi.

It was in Rajasthan’s first open prison–a farm set up in Durgapura near Jaipur in 1955–that prisoners were first allowed to stay with their families and work on the farm or nearby.

In December 2017, the Supreme Court asked states to establish an open prison in each district based on a 2017 report that detailed the success of Rajasthan’s open jail system. It followed up this suggestion with an order on May 8, 2018, asking states to “try and utilise the capacity of these open prisons”–which number 63 and have a capacity of 5,370, but have 30% seats unutilised–adding that states should consider increasing the capacity of existing open prisons and “seriously consider the feasibility of establishing open prisons in as many locations as possible”.

In creating open prisons where the rehabilitation of prisoners could start from the day they are incarcerated, instead of after they have served the greater part of their sentence, India would not become any less safe, the report mentioned above showed.

Commissioned by the Rajasthan State Legal Services Authority and released on National Law Day–November 26–in 2017, the report showed that open prisons “reduce the burden on the exchequer”, “reduce overcrowding in prisons” and “strengthen the social fabric by mainstreaming estranged individuals who are in conflict with the law”, to quote Kalpesh Satyendra Jhaveri, executive chairperson of the authority, who commissioned the report. He is now the chief justice of the Odisha High Court.

‘Not a threat to society’

Consider this scenario: A man’s daughter is raped. The man murders the rapist to avenge the crime. He is put in jail to serve a life sentence. The man is a murderer alright, but to what extent is he a threat to society now that he has no motive to kill?

Very low, according to prison researcher Smita Chakraburtty: “Seeing all prisoners through the same lens doesn’t help use the limited funds available for prisons judiciously.”

Or, consider how Kalu landed up in jail: “I squabbled with a man over a piece of land,” he told IndiaSpend. “I had a piece of wood in my hand, so did the man I murdered, we were beating each other,” said the native of Ghosunda village, in Chittorgarh tehsil of Rajasthan.

In the scuffle, the opponent got hit on the head and died, and Kalu became a murderer. “I hadn’t planned on killing the man,” Kalu said.

Kalu Tulsiram, 35, was imprisoned after a squabble with a man over a piece of land led to the latter’s death. Such accidental or unplanned murderers constituted 57% (244) of the 428 prisoners that researcher Smita Chakraburtty met during her visits to 15 of 29 open prisons in Rajasthan.

Such accidental or unplanned murderers constituted 57% (244) of the 428 prisoners Chakraburtty met during her visits to 15 of 29 open prisons in Rajasthan. She spoke to 90% of the inmates, except those out on work during her visit, so the 57% figure is fairly representative. Eighty-one percent (347 of 428) of the prisoners were also first-time offenders, with no previous police record.

This situation is mirrored in prisons across the country. Habitual offenders or ‘recidivists’ accounted for 3% of the 186,566 convicts admitted in prisons across the country during 2015, according to the National Crime Records Bureau’s (NCRB) prison statistics for that year.

“Repeat offenders are the ones with real ‘criminal minds’, who pose a threat to society and hence must be kept in closed jails, but they are also the ones who need reform and rehabilitation the most,” Udaipur Central Jail superintendent Surendra Singh told IndiaSpend.

“Repeat offenders are the ones with real ‘criminal minds’, who pose a threat to society and hence must be kept in closed jails,” Udaipur Central Jail superintendent Surendra Singh said. Habitual offenders or ‘recidivists’ accounted for 3% of the 186,566 convicts admitted in prisons across the country during 2015, government data show.

Often, people are incarcerated merely due to lack of awareness of the law, Chakraburtty said, citing as an example people imprisoned in Rajasthan for possession of opium. This reflects a lack of understanding of the nature of their offence, she said, “Because their communities have had access to opium since time immemorial, and they have no idea of the prevailing laws.”

The possession of any narcotic is a non-bailable offence under the Narcotic Drugs and Psychotropic Substances Act of 1985. However, the cultivation of opium is permitted, under license, in Rajasthan, Madhya Pradesh and Uttar Pradesh.

Apart from offenders who are psychopaths or who have performed exceptionally brutal crimes, most prisoners do not need to be removed from society, Chakraburtty said. They need to be watched over, made aware of their crime and rehabilitated.

“Justice is not revenge. It has to work for the victim as much as for the perpetrator,” Chakraburtty said, “If society responds with more violence, the prisoner develops vengeance for society and comes out hardened. If we ignore a prisoner’s need to earn a livelihood for his family, a man could enter the prison as a rapist and leave as a gangster.”

Open jails and prisoner behaviour

At Udaipur’s open air camp for prisoners (open prison for short), a roll-call each morning and evening keeps a count of the prisoners.

Overall, 1 in 45 prisoners in Rajasthan’s open prisons absconded from parole or escaped, while the all-India figure for closed prisons is 1 in 481, as per 2015 prison data. Chakraburtty’s report attributed most of the escapes from open prisons to “problems related to procuring parole and remission”–in other words, due to prisoners’ failure to furnish a bail bond, or due to adverse reports by police personnel willing to err on the side of caution.

“Administrative issues regarding parole are a common problem in prisons across India, and should be addressed,” said R.K. Saxena, former inspector general of prisons, Rajasthan, and the director of the 1982-83 Justice Mulla Committee on Prison Reforms. “Parole is a prisoners’ right, a conditional release and an opportunity for prisoners to assimilate into society.”

The report made several suggestions that would improve parole administration and thereby lower the number of prisoners recorded as having escaped. These are: Reducing the bond amount; encouraging personal bonds instead of requiring guarantors (unless a prisoner misbehaves); considering a prisoner’s behaviour alone based on social welfare department statements instead of police reports for the second parole onwards.

The police, on their part, could be sensitised on the role of open prisons in prisoner reform so that they make unbiased investigation reports when parole applications come up.

“A proactive approach in addressing the rights of prisoners is much needed,” said Ajay Chopra, an artist and social worker who was imprisoned in 2017 on corruption charges but was released on bail after three months. He now campaigns for greater acceptance of open prisons, especially after the Supreme Court’s endorsement. “A positive mindset towards prisoners is essential for prisoner reform,” he said.

Prisoners in Rajasthan’s open prisons have generally conducted themselves well, Chakraburtty told IndiaSpend. “Open jails in Rajasthan are doing something very right,” said Chakraburtty, a leading prison researcher and honorary prison commissioner for the aforementioned report, “Prison authorities have actually had to evict open jail inmates who asked for extensions after they had served their sentence because their children’s exams were approaching or because they were receiving decent medical care as convicts.”

In conversation with IndiaSpend, Kalu and Deepak, who are among 24 prisoners currently lodged in the Udaipur open prison, emphasised that a life of crime was far from their minds.

“Hotel business” is how Kalu described his tea stall work, something he said he wanted to continue doing after he was freed.

“I’d like to live in peace and work,” said Deepak about his plans after his prison term.

Segmenting by threat level

Rajasthan’s open prison system is considered a best practice in prisoners’ welfare and rehabilitation in the NCRB’s 2015 prison statistics. It has been acclaimed for “facilitating social adjustment and financial independence” of prisoners before their final release. Eligibility typically extends to “prisoners who have completed their one third part of total sentence and whose conduct in the jail was found good”, subject to the “recommendation of the committee formed by the State government,” the compilation notes.

Chakraburtty has proposed expanding the open prison network across the country to make it the norm instead of the exception, particularly for female prisoners; aged and physically infirm prisoners; people convicted for one-time offences, accidental offences, petty offences and those categorised as low risk for not showing any violent trait in prison; accused persons who surrendered; and prisoners undergoing extradition requests.

While the existing system provides for only convicted prisoners to be kept in open prisons, Chakraburtty has also recommended extending the facility to undertrials–who account for two in three people in prison in India today–to significantly lower overcrowding and inhuman living conditions in prisons.

But not everyone agrees with this idea.

“A person is denied bail and sent to judicial custody only when a magistrate has applied his mind and assessed that if not incarcerated, the evidence may be tampered [with] or investigation hampered, or there is a flight risk, thus disabling the trial process,” said Sugandha Mathur, senior programme officer for the prison reforms programme at the Delhi-based advocacy, Commonwealth Human Rights Initiative. “If none of these reasons exist, an accused should be released on bail to uphold their right to liberty,” she said, implying that basically, if the circumstances warrant bail, the undertrial should be freed, and if not, the prisoner should be put behind bars and not in an open prison.

Mathur is a member of the sub-committee convened by the Bureau of Police Research and Development in February 2018 to draft the Model Uniform Rules for the Administration of Open Correctional Institutions.

Economic sense, societal benefit

India has 63 open jails with a capacity of 5,370, enough to house 1.28% of the 419,623 prisoners across the country. However, 30% of their seats are unutilised, the Hindustan Times reportedon December 12, 2017.

While Rajasthan tops with 29 open prisons, Maharashtra has 13, Kerala and Tamil Nadu have three each, and Gujarat and West Bengal have two each, according to Prison Statistics 2015.

The Rajasthan report advocated opening two open prisons per district because they are better suited to prisoner reform and pose less of a financial burden on the state. By comparing monthly spending on prisoners, it showed that Jaipur’s Central Jail was 14 times as expensive as its open prison in Sanganer town.

The report also recommended making legal aid and health services available to open prisoners and helping them get gainful employment by negotiating working hours with potential employers to facilitate their timely return to the camp. Keeping prisoners in their home district and improving the remuneration for those employed on state farms and facilities were some other recommendations.

“You can’t put people in prison and expect them to come out as Gandhi after seven (or however many) years unless the system is conducive to reform, which the existing closed prison system isn’t by any measure,” Chakraburtty told IndiaSpend, adding, “Open prisons should become the norm, the prisons of the future.”

Why prison reform is needed urgently

The fact remains that overcrowding is a pressing issue involving the “violation of human rights”, to quote the Supreme Court.

In 2015, the prison occupancy rate exceeded 200% in Dadra and Nagar Haveli (276.7%), Chhattisgarh (233.9%) and Delhi (226.9%), according to NCRB data. Prisons in another 13 states were full beyond capacity.

Source: Prison Statistics 2015, National Crime Records Bureau

In a recent TEDx talk, Chakraburtty, who has interacted with 30,070 prisoners lodged in closed jails in Bihar, described prisons so overcrowded that inmates tied themselves to the bars to sleep because there was no space to lie down.

Adopting the concept of open prisons–or “semi-open prisons” where eligible convicts could be allowed to work within the jail premises during the day, or in a factory after making special arrangements for their secured transport, which Mathur proposed–would free up scarce resources, in terms of funds as well as staff.

The Jaipur Central Jail spends 14 times as much as the Sanganer open prison–Rs 7,094 as against Rs 500–on each prisoner each month, Chakraburtty’s report said.

In the Sanganer open prison, Rajasthan’s largest with a capacity of 400, one staff-person manages 80 prisoners while in Jaipur Central Jail, one manages six prisoners (the recommended number is one staff for four prisoners), Chakraburtty recorded.

Staff shortages are a reality across prisons. In Rajasthan, of the 4,426 sanctioned jail department staff positions, nearly half or 2,129 are vacant.

“We’re managing roughly 1,250 prisoners with 155 guards today, while in the 1970s we had 165 guards to manage 250 prisoners,” said Singh of Udaipur Central Jail.

Staff shortages are a reality across prisons. “We’re managing roughly 1,250 prisoners with 155 guards today, while in the 1970s we had 165 guards to manage 250 prisoners,” said Surendra Singh, superintendent of Udaipur Central Jail.

Having more open jails would enable better management of closed prisons too.

“If only every state could set time guidelines for parole applications to be processed, and make prisoners aware of these rights and actively implement them, possibly fewer prisoners would abscond from parole and make open prisons a stronger proposition in prisoner reform,” Mathur said.

*The prisoners were introduced by their first name and their father’s name, as is prison convention in Rajasthan.

(Bahri is a freelance writer and editor based in Mount Abu, Rajasthan.)

Indiaspend.com

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India – Modi and the art of distraction

‘The arrests of Sanatan Sanstha members for committing murder and stockpiling explosives with the alleged intent of committing mass murder must be embarrassing to a majoritarian government,’ notes Devangshu Datta.

The great Jadugar K Lal once told me that stage magic just involved using imagination, followed by careful scripting and practice.

He said the really difficult thing was learning the art of distraction.

Misdirecting the audience’s attention was, he said, a skill that far transcended the performance of smooth sleights of hand and the crafting of clever mechanical illusions.

It is a skill that the current political establishment has learnt well.

Whenever it’s under pressure, it creates some sort of distraction to drag attention away from the embarrassment of the moment.

 

The dawn raids by the Pune police on activists across the country was undoubtedly an attempt to do just that.

It succeeded since the arrests have dominated the news cycle for the next two days.

The question is, what was so embarrassing that the Centre decided to risk public opprobrium and ridicule by arresting elderly academics and lawyers on absurd charges?

It’s hard to find answers.

Could it have been demonetisation?

A Parliamentary committee had just criticised the exercise in no uncertain terms, pointing out the many undesirable outcomes.

The Reserve Bank of India’s annual report has also underlined the futility of the foolish exercise, which, if you remember, led to the deaths of over 100 people and caused misery to hundreds of millions.

Practically all the cash came back.

Cash held by the public now is back above pre-demonetisation levels.

The structure of household savings has changed for the worse, with the aam jantapulling money out of banks.

Bureaucrats told to defend the move have been reduced to risible statements like ‘Demonetisation worked, don’t ask how.’

Or, perhaps, it’s the meanness displayed in disbursing relief funds to Kerala? The southern state will require many, many thousands of millions to bootstrap out of this calamity.

The Centre is being niggardly in releasing tiny amounts in dribs and drabs.

Enough ‘friends of the establishment’ have pushed out faked images of the Rashtriya Swayamsevak Sangh delivering aid to lead the cynical among us to wonder why no real images could be produced.

And the less said about refusing aid from abroad the better.

The excuse is that this is government policy.

Well, surely this brave decisive government could change the policy?

However, it might not be Kerala or demonetisation that required fuzzing out of primetime focus.

The arrests of Sanatan Sanstha members for committing murder and stockpiling explosives with the alleged intent of committing mass murder must be embarrassing to a majoritarian government.

Maybe the civil rights activists were arrested in order to ensure that mass media did not focus on those arrests?

Or is it actually the Rafale controversy that the government doesn’t want debated on primetime?

There are so many weird elements to that story that it would be hard to peddle it as fiction. One government negotiates for 126 planes.

The next government decides to pay much larger sums for 36 planes.

What’s more, an industrialist who has never fabricated a plane in his career and whose companies owe over Rs 450 billion, suddenly becomes a joint venture partner of Dassault Aviation.

The French say they have no objection to the costs being mentioned in Parliament.

The Indian government says it can’t mention the numbers because it has a secrecy clause in a treaty with France!

Maybe it’s not the Rafale controversy either.

It could just be the record prices of diesel and petrol and the record weakness of the rupee.

After all, the current prime minister spent a lot of time excoriating the last government for the weak rupee and the high price of fuels.

Or, it could be the release of the Sudipto Mundle-led committee report on real sector statistics that suggested the last government did a better job in terms of generating growth.

Or, it might be Doklam, where the People’s Liberation Army has apparently been settling down.

Or, it may be the failure of helicopter diplomacy in the Maldives.

That’s a lot of potentially embarrassing stuff that could have made it to the news cycle.

Instead, we had the spectacle of 70-year-old academics being interrogated on why they read books on Marx and Mao.

Well played!

http://m.rediff.com/news/column/modi-and-the-art-of-distraction/20180920.htm?src=whatsapp&pos=news

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Bhima Koregaon: Read the FIR that triggered the arrest of activists & lawyers

 

On Friday, the Supreme Court reserved its verdict in the case challenging the arrest of activists and lawyers in connection with the Bhima Koregaon violence.

The matter was heard by a Bench of Chief Justice of India Dipak Misra and Justices AM Khanwilkarand DY Chandrachud.

The arrests came based on a complaint by one Tushar Damgude, which led to an FIR on January 1 this year. As per his complaint, Damgude, who is 37 years old, is a post-graduate in History but has been engaged in the construction business for the past 4 years.

Tushar Damgude with Sambhaji Bhide (Image: Facebook)

The FIR which sets out the complaint by Damgude is replete with tirades against the Kabir Kala Manch and Dalit activism.

It states that Damgude learnt from Facebook about an event of Elgar Parishad to be organized on December 31, 2017, at Shanivar Wada, Pune.

On this date, he went to the ground in front of Shanivar Wada, Pune for the Elgar Parishad Program at about 2 pm in the afternoon.

The complaint then speaks about the persons who were present for the program.

“Sagar Gorkhe, person who gave background of the program Sudhir Dhavale, artists who sung and performed dramas Jyoti Jagtap, Ramesh Gaichor, and others, and at the same time as speakers, Jignesh Mewani, Umar Khalid, Vinay Ratan Singh Prashant Dontha etc were there.”

The complaint proceeds to state about Kabir Kala Manch and how Damgude came to know about its members from social media.

“I have read the information about Kabir Kala Manch and its members in social media and newspapers. That’s why I know the members of Kabir Kala Manch.”

He gives details about the slogans and speeches which were made at the program.

“…Bhima Koregaon has given a lesson, bury this neo peshwayi in cemetery, break it to the size of mustard, bury peshwayi, this is a war cry of Sidnak. The Peshwayi has arrived in new form, she needs to be knocked off, o soldier, she needs to be knocked off… like slogans were shouted from time to time, thereby making an inflammatory statement inciting enmity within society.

The Peshwayi has arrived in new form, she needs to be knocked off, o soldier, she needs to be knocked off… sung this song again, also presented dance and street play on the same, thus made a inciteful presentation which would incite communal hatred in the society.”

Many speakers delivered inflammatory speeches, and objectionable and inflammatory books were also kept for sale at the place of the said program, Damkude alleges.

Facebook Post of Tushar Damgude where he highlights excerpts from the Books sold CPI (Maoist)

The complaint then makes allegations about how the CPI (Maoist), a banned organisation, misguides Dalits and propagates radical Maoist ideas of violence. He also alleges that Sudhir Dhavale, Harshali Potdar and other activists of Kabir Kala Manch have undergone inquiry on allegations of connection with Naxals.

“I say that, the policy of banned organization namely Communist Party of Iindia (maoist) is to misguide dalits community, and propogate radical Maoist ideas which is of violence and not that of constitutional means. As a part of this policy, Sudhir Dhawale of Kabir Kala Manch and their other activists, in the similar manner, at different places in Maharashtra State, inflammatory and communal hatred inciting speeches, misguiding history, again inflammatory speeches and streetplays were performed.”

As a result of this, stone pelting, violence, and arson erupted in Bhima Koregaon and abutting areas, Damgude concludes.

And thereafter in Maharashtra, human loss and economic loss and communal hatred developed…..Hence my complaint is against (1) Sudhir Dhawale, anchor of the program (2)Sagar Gorkhe and his other artists, (3) Harshali”

Read the translated copy of the FIR below:

Bhima Koregaon: Read the FIR that triggered the arrest of activists & lawyers

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Human rights activists’ arrest: Will this be another case of justice delayed?

 

Human rights activists' arrest: Will this be another case of justice delayed?
Human rights activists’ arrest: Will this be another case of justice delayed?

KAMAL MITRA CHENOY

A number of severe laws have been existing in the annals of Indian politics and society. We often fail to assess them.

 

For example, the British mandated a new law in 1942, which came to be known as the Armed Forces Special Powers Ordinance, 1942. This law was promulgated to crush the Quit India movement.
Later, it became a feared Act — the Armed Forces Special Powers Act — used by the Army to crush insurgency.

Then, the Indian state promulgated a host of anti-terror laws.

These included (not necessarily in that order) the MISA (Maintenance of Internal Security Act), POTA (Prevention of Terrorism Act), and, of course, the UAPA (Unlawful Activities Prevention Act), among others.

This has strongly influenced the Army and police in their fight against terrorism.
But have the five activists jailed in the “urban Naxal” case been violating any of these laws?
There were three sets of lawyers involved:

Additional solicitor general Tushar Mehta tried to prove the five activists — Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj and Gautam Navlakha — guilty.
He took the bench through the allegedly recovered documents, including pen drives, laptops and hard discs.

Justice DY Chandrachud clearly stated, “We cannot sacrifice liberty at the altar of conjectures.”
When Mehta persisted that the judges should look at the evidence at length and not at a “few pages”, Justice Chandrachud stated, “Of course we will take a holistic view after going through the entire set of documents that would be shown to us. We will look at the evidence, but with a hawk eye.”

Justice Chandrachud also said, “We must differentiate between armed struggle against the government and expression of dissent by a section of people because of generations of suppression. Please keep this distinction in mind while presenting evidence. The shoulders of all, be it the government or the Supreme Court, should be broad enough to take criticism and dissent.”

When Tushar Mehta intervened, advocate Prashant Bhushan interjected and claimed that the letters and documents being cited were “fabricated” evidence.

To this, CJI Dipak Misra bluntly said, “We cannot deal with your allegation… We are at the preliminary stage of finding whether the evidence makes up a prima facie case for police to arrest the petitioners.”
The activists, through counsels AM Singhvi, Anand Grover, Ashwani Kumar, Rajeev Dhavan and Prashant Bhushan, vigorously argued that they were targeted for dissent against the ideology and practices of BJP-led governments and were arrested to muzzle criticism.

They argued that systematically unverified reports were leaked to the press by the Pune Police in an attempt to tarnish their reputation through a “media trial”.

Expectedly, Mehta denied this. He claimed, “The arrests are not remotely connected to their dissent against the government. But if some persons are energising a machinery for planned activities to cause widespread law and order problem in the country, we must look at these with a little more seriousness.”
There lies the paradox.

On the one hand, Mehta was dismissing the allegation that the arrests were connected to the activists’ dissent; on the other hand, he was talking of “energising a machinery”.

If these arrests “are not remotely connected to their dissent against the government”, then why are the five activists accused of wanting to “widespread law and order problem in the country…”?

Senior advocate Ashwini Kumar, who appeared for the petitioners, submitted, “Action against citizens under penal statutes, such as the UAPA, must pass the test of reasonableness, rationality and procedural fairness as mandated under Articles 14 and 21 of the Constitution.”

Senior advocate Abhishek Manu Singhvi contested the Pune police’s claim that a comrade named Prakash, who was identified as Saibaba, had written to these five activists. Singhvi raised questions over the possibility of this as Saibaba has been in jail since March 2017.
He also questioned the process of the Maharashtra police using witnesses from Pune to make arrests in Faridabad.

“What business do the Pune Municipal Corporation employees have in Faridabad?” Singhvi asked as he contended that the five activists were arrested because “they had been writing strongly against the other arrests made in June”.

Senior advocate Anand Grover, who appeared for those arrested in June, said that the Pune police had lodged two FIRs on the Bhima Koregaon violence. The second FIR cannot be used for starting a fresh investigation, when the first FIR is pending, he argued. He also pointed out that the police had not complied with any procedure while making the arrests. It was a fit case for being sent for an independent investigation, he said.

Seeking an independent inquiry, senior advocate Rajeev Dhavan also said that the unfairness began with the police going to the media with evidence.
The accused were “five respectable people who had been writing for a long time,” he said, adding that the case “is nothing more than a relentless pursuit of some people.”
“You target liberal and Left people,” he said, remarking, “(the) court will have to see if Pune police have targeted these people again and again and again.”

These are very serious issues here.
Why was the “evidence” shown to the media?

This would mean that the media could prejudge the later proceedings.
The very “contradiction” underlying Tushar Mehta’s argument; “falsely” linking Saibaba to the activists — all these take us to a much larger debate.

The Romans would say reductio ad absurdum — reducing an untenable charge to the absurd.
The trial is not over yet.

But those who follow it will see for themselves how the police apparently often create their own evidence.

 

Or, they delay it.

As the dictum goes, justice delayed is justice denied.

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UP Govt to Release Bhim Army Chief Chandrashekhar Azad,after 15 months in Jail #Goodnews

After 15 Months in Jail, 

The Dalit rights activist, accused in the 2017 violence in Saharanpur and booked under the NSA, was to be released on November 1.

Chandrashekhar was booked for his alleged role in last year’s caste violence in Saharanpur district, involving Dalits and upper caste Thakurs.

In a major decision, the Yogi Adityanath-led Uttar Pradesh government on Thursday decided the early release from jail of Bhim Army Chief Chandrashekhar Ravan, who is behind bars on NSA charges after last year’s Saharanpur caste violence. He was to be released on November 1.

Mr. Chandrashekhar was booked for his alleged role in last year’s caste violence in Saharanpur district, involving Dalits and upper caste Thakurs.

The UP department, which is under CM Adityanath himself, in a statement said the decision was taken on sympathetic grounds taking into consideration the representations by Mr. Chandrashekhar’s mother and the “current situation.”

The NSA allows the state government to detain any person it feels poses a ‘threat to the security of India’ or could ‘disrupt public order’. Its application is to be renewed every three months if the government is of the opinion that the person continues to be a threat. The application of NSA on Azad was last renewed in July and would have lapsed again in November.

Now, according to police sources in Saharanpur, they are waiting for the order to reach them and will release the three accused as soon as it does. Members of the Bhim army and Azad’s family have gathered outside the Saharanpur jail.

Azad’s family and Bhim Army member outside Saharanpur jail. Credit: Abrar Ahmed

“This is a victory for us and the confidence that people had in Chandrashekhar Azad. I also appeal to people to celebrate this occasion but abide by the constitutional values that we stand by,” said Kamal Walia, district president, Bhim Army, Saharanpur.

Violence broke out in Saharanpur last year after tensions had began in April over the installation of a Ambedkar statue in Shabbirpur. The Dalits wanted the statue to be installed in the Ravidas temple in the village and the dominant Thakur community objected. The police urged the Dalit community to not install the statue in the ‘interest of peace’.

On May 5, 2017, the Thakur community took out a procession commemorating Maharana Pratap. The Dalit community objected because the “DJ was too loud”. This led to violence as a mob armed with swords, thick bamboo sticks, country-made revolvers and bottles filled with petrol ransacked the Dalit ghetto of the village, burning down 55 homes. Several Dalits were grievously injured. One member of the Thakur community died. Five Dalits were booked for murder.

A few days after the violence, the Bhim Army – a small and relatively unknown Dalit social organisation at the time led by Azad – called for a mahapanchayat in Saharanpur town to protest against the violence in Shabbirpur. The police denied them permission and the protest turned violent as vehicles were set ablaze, stones were pelted and a police post was damaged.

Cases were registered against almost every known member of the Bhim Army, and they rose to national prominence while in hiding. Its founder, Chandrashekhar, a lawyer from the village of Chhutmalpur, gained the status of a young Dalit icon, and the Bhim Army became a symbol of Dalit assertion.

In June, Chandrashekhar was arrested along with several other members of the Bhim Army. The five Dalits from Shabbirpur charged with murder had already been arrested earlier.

On October 15, two of the five charged with murder were booked under the draconian NSA. A couple weeks later, on November 3, Chandrashekhar too was booked under the NSA, a day after he had been granted bail by the Allahabad high court on the charges that the police had filed.

The Hindu

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Political prisoners start hunger strike today in Yeravda Central Jail

    Today, on 13th September, the martyrdom day of the great revolutionary Jatin Das, who sacrificed his life while on hunger strike for the political rights of the prisoners, 6 political prisoners in Yerwada jail have gone on a one day token hunger strike.
Initially Jatin Das worked in the Congress Seva Dal along side Subhash Chandra Bose. However, later he joined the revolutionary organization Hindustan Socialist Republican Association. He had mastered the craft of making bombs.
The Bombs which were thrown at the assembly hall by Bhagat Singh and Batukeshwar Dutt, with a stand that an explosion was required to make the deaf hear, were prepared by Jatin Das. Thus say the history. The revolutionaries while in Jail went on a hunger strike demanding that revolutionary prisoners should be treated as political prisoners. Jatin Das, who too participated in the hunger strike exhibiting glorious determination, died on the 63rd day of the hunger strike on 13th sept 1929. He was only 25 at the time.
That 13th sept, the martyrdom day of Jatin Das be declared as “Political prisoners’ rights day”, draconian laws like ‘Unlawful Activities Prevention Act’ and Armed Forces special Power Act be abolished, capital punishment be abolished, and political prisoners be given humane treatment are the prime demands of the prisoners.
Those on hunger strike include Adv Surendra Gadling, writer-editor Sudhir Dhawale, Mahesh Raut, Rona Wilson, being tried under the UAPA and Arun Bhelake and K Muralidhar, accused in other cases.
We must understand that when these prisoners are held for certain political ideas and action based on those ideas, they must be recognized as political prisoners. In the pre independence india the revolutionary political prisoners raised a similar demand before the british regime, but it was not fulfilled, and it remains unfulfilled even after 71 years of independence.
Books are as much essential for a thinking political prisoner as food for a human being. Hence, books of Law and a study of Judgements by High court in various cases are necessary for Adv Surendra Gadhling to satisfy his intellectual quest. The administration has obstructed the provision of these books despite clear orders from the session court.
Sudhir Dhawale, who is a writer and an editor, needs books on economics, sociology and Ambedkarite dalit movement in particular.
Mahesh Raut holds a post graduate degree from TATA institute of social science and is a researcher of tribal and forest laws, relevant policies and movements. He needs books about his subject of study.
Intellectual activity is necessary for the human brain to remain active. If the political prisoners are deprived of the reading material they need, it means they are being consciously harrassed.
The jail administration has intentionally been harrassing an intellectual like Surendra Gadling since last 3 months. The administration has shifted him as many as 5 times withing the jail so far, which is clearly a part of the harrassment.
The Jail administration has even refused to provide them the warm clothes. The administration has in clear terms denied provision of anything whatsoever on humane grounds. They are being harassed under the disguise of Law. A similar situation prevails among most political prisoners in other Jails as well.
*◆Demands: ◆*
*●1. Abolish UAPA/AFSPA and all other Draconian laws*
*●2. Abolish Death Penalty*
*●3. Declare and Observe today’s day (13 September) as ‘Political Prisoners Rights Day’.*
*●4. Give humane treatment to all the inmates irrespective of crime allegedly committed and irrespective of caste, class, gender, religion, etc.*

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UN Decries ‘Shameful’ Reprisals on Rights Activists in 38 Countries Including India

The annual report from UN Secretary-General Antonio Guterres included allegations of ill-treatment, surveillance, criminalisation and public stigmatisation campaigns targeting victims and human rights defenders in the countries.

Geneva:  The UN listed 38 “shameful” countries including China and Russia on Wednesday which it said had carried out reprisals or intimidation against people cooperating with it on human rights, through killings, torture and arbitrary arrests.

The annual report from UN Secretary-General Antonio Guterres also included allegations of ill-treatment, surveillance, criminalisation and public stigmatisation campaigns targeting victims and human rights defenders.

“The world owes it to those brave people standing up for human rights, who have responded to requests to provide information to and engage with the United Nations, to ensure their right to participate is respected,” Guterres wrote. “Punishing individuals for cooperating with the United Nations is a shameful practice that everyone must do more to stamp out.”

The 38 countries included 29 countries with new cases, and 19 with ongoing or continuing cases.

The new cases were in Bahrain, Cameroon, China, Colombia, Cuba, Democratic Republic of Congo, Djibouti, Egypt, Guatemala, Guyana, Honduras, Hungary, India, Israel, Kyrgyzstan, Maldives, Mali, Morocco, Myanmar, Philippines, Russian Federation, Rwanda, Saudi Arabia, South Sudan, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, and Venezuela.

Governments frequently charged human rights activists with terrorism or blamed them for cooperating with foreign entities or damaging the state’s reputation or security, it said.

“(There is a) disturbing trend in the use of national security arguments and counter-terrorism strategies by states as justification for blocking access by communities and civil society organisations to the United Nations,” the report said.

Women cooperating with the UN had reported threats of rape and being subject to online smear campaigns, and UN staff often encountered people who were too afraid to speak to them, even at UN headquarters in New York and Geneva.

UN Assistant Secretary-General for Human Rights Andrew Gilmour, who will present the report to the Human Rights Council next week, said in a statement that the cases in the report were the tip of the iceberg.

“We are also increasingly seeing legal, political and administrative hurdles used to intimidate – and silence – civil society,” he said.

Some of the countries listed are current members of the Human Rights Council, which adopted a resolution last year reaffirming that everyone – individually or in association with others – had a right to unhindered communication with the UN

(Reuters)

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Muzaffarnagar Riots: Amnesty Blames UP Government For Plight Of Survivors

 

They survived the bloody riots in September, but the winter chill seems determined to do some real harm to over 50,000 people displaced during the Muzaffarnagar riots and now living in dozen-odd relief camps. One of these – Malakpur relief camp in Shamli district — in pictures offers no respite to riot-affected people – women, aged and children alike. The December chill has reportedly claimed lives of 34 children so far. More are likely to lose the battle against damp and dew in the coming month not because the winter will get harsher but because those in the seats of power have already displayed their callous attitude for the plight of the victims – living under tarpaulin covers for three months now. These images reflect the minimum protection that the riot victims have against the brutal winter, and cold response from the concerned authorities. (Photo: IANS)

NEW DELHI (IANS) – Amnesty International on Saturday castigated the Adityanath government in Uttar Pradesh for doing little to ensure justice and rehabilitation for the survivors of the 2013 Muzaffarnagar communal violence.

On the fifth anniversary of the deadly riots in Muzaffarnagar district that claimed at least 60 lives and displaced over 50,000 people, the Amnesty International India blamed the state government’s apathy for seven gang-rape survivors still awaiting justice and the displaced continuing to look for rehabilitation.

“The Uttar Pradesh government has forgotten the riot survivors of Muzaffarnagar and Shamli. The state has done very little to redress the injustice they have faced. The government’s attempt at rehabilitation and compensation has been woefully inadequate”, said Asmita Basu, Programmes Director, Amnesty International India.

She said justice remained elusive for the seven gangrape survivors who have received little assistance from authorities to rebuild their lives and livelihoods.

“There has not been even one conviction in any of the seven cases so far. In 2016, one of the survivors died during childbirth,” she said.

Quoting one of the survivors, a mother of five, Amnesty International India said the victims have lost all hope of getting justice and are now hoping for survival of their families.

“Their rapists are out in the open for years now. Women are scared to pursue their cases and they cannot be blamed for this. There are media reports of compromises being made and of money being offered and accepted by many of the seven families. We need to understand the realities in which these women have survived all these years. They are scared and have lost all faith in the system,” said Rehana Adeeb, an activist working with the survivors.

The rights body said an overwhelming majority of families in resettlement colonies lack access to basic services like clean drinking water and drainage facilities.

“The Uttar Pradesh government’s callous treatment of Muzaffarnagar and Shamli riot survivors is a breach of its commitment to uphold basic constitutional values. The riot survivors have been forced to live in a vicious cycle of poverty and discrimination. The Uttar Pradesh Chief Minister must ensure that the voices of the survivors are heard immediately, and justice is delayed no further”, added Basu.

Muzaffarnagar Riots: Amnesty Blames UP Government For Plight Of Survivors

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India – Rights Activists Arrest: This Law Is An Ass

 

Arresting activists is an attack on dissent in keeping with UAPA’s history

On August 28, the Pune police mounted raids across several cities,taking into custody five civil liberties activists, invoking that dreaded anti-terror law, the Unlawful Activities Prevention Act (UAPA). They were acc­­used of inciting violence in Bhima Koregaon in January, and generally of aiding the banned Maoist party. The police’s swift operation—oiled by a section of the media that flashed dubious letters about a conspiracy, and a lower judiciary that speedily signed transfer remands—has received a jolt for now.

The run of events evoked a sense of déjà vu. Have we not seen a vicious trial by media every time an agency presented its latest arrests as operatives of whichever group was in the home ministry’s favour that season? Have we not seen courts signing blank cheques for investigators—be it extended remands or ignoring signs of custodial torture? The ever-exp­anding circle of suspects since January, the stubborn refusal by the police to book Hindu right groups inv­olved in the Bhima Koregaon violence, the convenient recoveries of self-incriminating letters—all of it fits the template of arrests made under UAPA.

Who would know better than Arun Ferreira, now under house arrest, saved from the Pune penitentiary by the Supreme Court’s grace? In 2007, he was picked up, accused of conspiring to blow up a monument in Deekshabhoomi in Nagpur. Eventually, 10 more cases were filed against him, including arson, assault, murder and firing on police; one was said to have occurred while he was in jail. A pen drive supposedly recovered from him was the sum of the evidence. He was acquitted after five years in jail.

UAPA lets the Centre criminalise any idea, thought, art or writing that ­challenges the ­dominant narratives.

This is how cases under UAPA are registered and prosecuted. Charges multiply. Bail is rarely gran­ted. But it isn’t merely the procedure that blights this law. Passed in 1967 and amended repeate­dly, UAPA enables the Centre to declare an association “unlawful” if it is seen as a threat or pot­ential threat to the country’s “sovereignty and integrity”, or is seen as promoting “enmity between different groups”, or for “imputations prejudicial to national integration”—all subjective criteria contingent on the ideology of the government of the day. The ban on the Students’ Islamic Movement of India (SIMI) in 2001 saw arrests of hundreds of Muslim youth across the country for allegedly furthering the group’s activities, and is still a potent wea­pon to render the community perennially suspect.

The sections most often invoked—3, 10 and 13—refer not to violence, but to membership of unlawful and terrorist associations. But how to prove membership and participation in an organisation that no longer exists? This is resolved by investigators ‘seizing’ literature of the organisation. In the case of SIMI, in an overwhelming number of cases the evidence centred on copies of the group’s organ, Islamic Movement, all antedating the ban, or pamphlets of programmes held by SIMI when lawful, or photocopies of these, or the same magazine in multiple cases in different cities with a different set of accused!

Under UAPA, the ‘intention’ of the suspect is central in condemning him or her as a terrorist (“whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India”). ‘Unlawful activity’ defined as “an act or by words, either spoken or written, or by signs or by visible representation or otherwise”, practically grants the government the power to criminalise any idea, thought, art or writing that challenges the dominant narratives of development, governance and social inequality. Commission of violence has thus become peripheral to the charge of terrorism.

It is true that some judicial pronouncements have sought to temper the law’s razor edge by distinguishing between active and passive membership of banned organisations. That hasn’t discouraged pro­s­ecutors from citing the accused’s commitment to jus­­tice and equality as inc­riminating evidence, or discouraged the courts from accepting this.  So G.N. Saibaba—wheelchair-bound and 90 per cent disabled—has been sentenced to life, mainly for his ideas.

And yet, this was a spectacular operation—a psy-op if ever there was one. The ‘shock-and-awe’ nature of the multi-city raids was meant to force us all into submission, and to congeal the ‘Urban Naxal’ legend in this government’s relentless pursuit of foes. And while the Opposition decries it—rightly—as an attack on dissent, it must itself commit to the repeal of this law, which in the past it created and nourished.


(Manisha Sethi is the author of Kafkaland: Law, Prejudice and Counterterrorism in India.)

 

source- outlook

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Bail over jail: on due process

The chain of arrest, custody, and remand must be linked only by due process

The power of arrest is an extraordinary one, conferred on the police to be employed with discretion and deliberation, not as a tool of oppression and harassment at the hands of prosecuting authorities or the government of the day. The Supreme Court has emphasised that arrests should never be a reflexive response to an allegation of an offence, or even its commission. The law that empowers the police to arrest people without warrants (Section 41 of the CrPC) is reasonably stringent, demanding that some conditions be met, including that such arrests be carried out to prevent commission of further offences, tampering of evidence, and influencing of witnesses. Unfortunately, a power that affects the liberty of citizens and which can ‘bring humiliation… and cast scars forever’, as the Supreme Court noted in Arnesh Kumar v. State of Bihar (2014), continues to be used in a cavalier way. Recently, Tamil Nadu has attracted attention in this connection, particularly for the heavy-handed treatment of those opposing the Chennai-Salem eight-lane highway project. The latest in a slew of unjustified round-ups and arrests was Swaraj India Party’s chief, Yogendra Yadav; ironically, he was on nothing more than a fact-finding mission to meet farmers affected by or opposed to the project.

Mr. Yadav was let off, but in most cases arrests without warrant follow a dishearteningly familiar course, with the accused sent to custody after the police oppose bail. In this prosecutorial ecosystem, jail succeeds in trumping bail almost every time and magistrates, who are empowered to refuse remand and grant bail, continue to issue orders mechanically. Tamil Nadu was witness to another high-profile example of this recently, when a student was arrested and remanded to 15 days judicial custody (before eventually being let off on bail) for political sloganeering on an aircraft; the complaint was filed by the BJP’s State president. The dilemmas over maintaining the right balance between individual liberty and the interests of society invariably become more acute when the charges against the accused, well-established or otherwise, are serious. The recent and shocking arrests of activists, over their alleged links to Maoists, have focussed attention on the severe restrictions on bail when booked under the Unlawful Activities (Prevention) Act. The prosecution has 180 days to file a charge sheet, a period during which bail is routinely denied. And after the charge sheet is filed, bail is extremely difficult to secure, dependent as it is on the accused establishing his or her innocence, a reversal of the usual burden of proof. If the Supreme Court decides that justice will be secured only by its intervention in the case, it will probably be forced to invoke its extraordinary powers under Article 142 of the Constitution, another reminder of the need to break the customary chain of arrest, custody and remand.

https://www.thehindu.com/opinion/editorial/bail-over-jail/article24910019.ece

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