The Indian Constitution gives pride of place to the fundamental rights of a citizen, including the right to life and liberty. One would assume that it implies two basic legal principles: one, that the accused is innocent until proven guilty; and two, that bail is the norm and jail the exception. The stories of thousands of undertrials — mostly Muslims and people from other oppressed sections of society — languishing in jails across the country, however, run against the grain of the constitutional promise that “no person shall be deprived of his life or personal liberty except according to procedure established by law” (Article 21). But what if the legal procedures themselves are stacked against the underprivileged and the dissidents?
After the collapse of the socialist world, a political thesis heralding the ‘end of history’ emerged. US-based political scientist Samuel Huntington, who envisioned the final triumph of liberal democracy, prophesied that the clash of ideologies that had been dominating world history since the Russian Revolution in 1917 would be replaced by a clash of civilisations. Though Huntington went on to retract his hypothesis, the clash of the civilisations continued to rip the world apart through most of the past three decades.
This new political dynamic made it necessary for liberal democracies across the globe to replicate a trait that was earlier considered to be peculiar to fascism: the concept of an enemy within. Once the communist challenge to the dominant world order bit the dust in a gradual process of decay from the 1970s to the 1990s, culture emerged as a key sphere for the emerging neoliberal financial order to assert its dominance. In India, the slot of ‘the enemy within’ could be most conveniently filled by the largest minority — the Muslims — and that is exactly how national politics panned out in the late 20th and early 21st century. And the process reached its zenith in the aftermath of the 9/11 attacks in the US, when Muslims were recast as the dangerous ‘outsider’, both as immigrants and even in their own native places where they happened to be in a minority.
The political economy of India had already undergone a tectonic shift that was triggered when the doors to liberalisation and globalisation were flung open in the mid-1980s. The rise of the Hindu Right following the Babri Masjid demolition in 1992 coincided with an insidious process of dispossession and alienation of the already-marginalised castes, classes and communities. Communal riots became an essential part of the political script and were increasingly used to prevent the oppressed from various communities to come together and resist the onslaught of dispossession. Muslims were portrayed as conspirators and instigators of violence, and condemned as enemies not just of the State but also of the much-celebrated Nehruvian idea of “unity in diversity”.
Besides Muslims, other communities living on the margins of the national mainstream — Dalits, Adivasis, fisherfolk etc — were left out of the growth trajectory as they failed to make the cut as consumers in the emerging market-driven economy. Though various political organisations, including several Left parties, were critical of the emerging economic order, the State had by then become increasingly militarised, stifling dissent when and where necessary. Sedition laws were imposed against those who questioned the dominant readings of ‘democracy’ and ‘development’. Anti-terror laws were passed and updated at regular intervals. The conviction rate of these laws was abysmally low.
The draconian provisions in extraordinary laws such as the Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention of Terrorism Act (POTA) and now the Unlawful Activities (Prevention) Act (UAPA), ensured that the accused were more often than not denied bail. In many cases, the accused spent long years in jail before being acquitted of all charges. The case of Abdul Nasser Maudany, who was incarcerated for nine years before the court found him innocent in the Coimbatore blast case, is a classic example of the oppressive and partisan nature of the anti-terror laws.
Parliamentary democracy rests on the assumption that there is enough freedom for dissenting ideas to be propagated so that the citizens can make informed political choices through the electoral system. The reality of Indian democracy, however, is a far cry from this ideal model. Had it been otherwise, the number of inmates rotting in the prisons would not have gone up so steeply in the past few years when the neoliberal development model was questioned and assailed by large sections of society.
In fact, most jail inmates in India are those who are yet to be proven guilty, and therefore, according to the legal principle mentioned earlier, are “innocent”. No less than 60 percent of prisoners in the country are undertrials. In 2014, the shocking numbers forced the apex court to direct all state governments to release every undertrial who had completed half of the maximum sentence for the crime he or she was accused of.
In light of the high and the mighty managing to secure their legal rights more often than not, the tragic case of the underprivileged undertrials stands testimony to the skewed application of basic legal principles under the Indian State. Of the thousands of such victims of the injustice of law, Tehelka profiles three to give a worm’s eye view of the partisan operation of our legal system.
ABDUL NASSER MAUDANY
(Bangalore Blast Case 2008)
Born in Sasthamkotta village in Kerala, Abdul Nasser Maudany started out as an Imam at a local mosque. Due to his exemplary oratorical and leadership skills, he went on to form the Islamic Seva Sangh in the wake of the 1989 Bhagalpur riots in Bihar.
At the peak of his popularity, Maudany went beyond Muslim-centric politics to forge a political alliance between the Muslims and the Dalits. This resulted in the emergence of a new political outfit based in Kerala, the People’s Democratic Party (PDP), in 1992. Six years later, Maudany was arrested as an accused in the Coimbatore bomb blasts case, which took place on 14 February 1998. Following the interrogation of Oma Babu, a prime accused in the case, charges under sections 153A (spreading communal hatred), 124A (sedition) of the Indian Penal Code (IPC) and some sections of the Arms Act, were slapped on Maudany.
It was then that Maudany’s first stint as an undertrial began. It lasted almost nine years until he was acquitted of all charges in 2007. Subsequently, he declared a strategic alliance with the CPM and campaigned for the party in the 2009 Lok Sabha election.
There was no end to the hounding, though. In December 2009, his wife Sufiya Maudany was arrested as an accused in the Kalamassery bus burning case. Though Sufiya was later released on bail, on 17 August 2010, Maudany was again branded a terrorist for his alleged involvement in the 2008 Bangalore blasts.
Official narratives insinuated a conspiracy between Maudany and Nasser, another accused in the case. A Tehelka investigation in 2010 blew the lid off the police conspiracy behind fabricating evidence against Maudany. A case was also filed against the reporter, KK Shahina.
Meanwhile, Maudany’s health was deteriorating by the day. A diabetic, he sought treatment at the Karnataka Institute of Diabetes. Besides coping with semi-blindness, he was suffering from numerous other ailments such as spinal pain, disc collapse, block in urinary tract, ulcer and many other infections. Despite such strong grounds for bail, it was repeatedly denied to him. The Supreme Court simply ordained, “He is not supposed to go anywhere.”
After enduring much agony, Maudany was finally let out of jail on conditional bail, to undergo medical treatment. The terms of the bail order do not allow him to leave the hospital premises.
Recalling his early childhood, Maudany’s son Salahuddin, says that he and his brothers never had the privilege to live with their father. While they have encountered several financial and emotional problems in the course of their student life, the stigma of being sons of an alleged terrorist alienated them from their neighbours and school friends.
“I was just eight months old when my father was arrested. Later, when he was acquitted, I was very happy and I thought that now, like other kids, I too can go out with my father. But, before that could happen, he was arrested again,” says Salahuddin. “I know my father has not done anything that could take the lives of innocents. In my short meetings with him, he always taught us to stand by the truth and not be afraid of the consequences. I believe that very soon my father will be a free man again and I will get to live with him.”
In his acclaimed documentary Fabricated, activist and filmmaker KP Sasi chronicled the story of the institutional bias in Maudany’s case. The film documented how the charges were manufactured and how bail was repeatedly denied.
“Maudany was the first political leader in Kerala to call for the unity of the minorities with other oppressed sections of society such as Dalits and Adivasis,” says Sasi. “If he were not in jail, this political equation that he put forward would have significantly transformed the scenario of Kerala. It could even have eroded the base of the existing political parties, including the Indian Union Muslim League. While in prison, he supported the people’s struggles in Koodankulam, against the POSCO steel project in coastal Odisha, Irom Sharmila’s campaign for the repeal of AFSPA and the struggle of the victims and survivors of the anti-Christian pogrom in Kandhamal in central Odisha. If his politics were different, perhaps, he would not have been targeted. In political terms, Maudany’s compassion is his weakest point.”
(Jaipur Blasts Case 2008)
On 13 May 2008, a series of explosions rocked Jaipur. The incident that shook the entire country claimed the lives of 70 and injured 200. Two days later, the Indian Mujahideen (IM) claimed responsibility via an email.
In an attempt to catch the perpetrators at the earliest, the investigating agencies arrested a number of Muslims from various parts of the country, including Shahbaz, a resident of Lucknow. Ever since his arrest, Shahbaz has been denied bail three times in eight years. Besides, eight FIRs have been filed against him in the case. However, according to Abu Bakr Sabbaq, a lawyer and a member of the Association for Protection of Civil Rights, there were numerous loose ends in the police narrative and the documents provided as evidence to the court. Copies of a readily available Urdu magazine called Tehreek were found on him and produced as evidence of his involvement in jihadi activities. This flies in the face of the Supreme Court’s observation in the much-celebrated Binayak Sen case that possession of extremist literature is no ground for conviction.
According to the defence, the prosecution has so far failed to produce any important documents to justify Shahbaz’s arrest. Though the Rajsathan ATS claimed to have seized a Nokia 1100 cellphone from his possession, the SIM number and call details record were not mentioned in the chargesheet. The log register of the Internet café, from where he had allegedly sent out an email on behalf of the IM claiming responsibility for the Jaipur blasts, and the modem were not seized. Moreover, there was no official record on the history of the email account, the first receiver of the email or the one who forwarded it. A fact-finding report by the People’s Union for Civil Liberties (PUCL) found that Shahbaz was in Lucknow on the day the blasts were triggered in Jaipur.
Yet, despite the glaring gaps in the prosecution case, Shahbaz has been denied bail all these years. As Mahmood Pracha, his lawyer, puts it, “By trying to implicate Shahbaz in the case, the police are only trying to shield the real terrorists who carried out the blasts.”
(Alleged Maoist Links 2014)
At the age of five, GN Saibaba was diagnosed with polio, which paralysed nearly half of his body. Yet, in the face of physical disability, he pursued higher education in English literature and in 2003 was appointed as a lecturer at Ram Lal Anand College, Delhi University.
By then, he had begun organising protests on various issues. Playing an instrumental role in organising and mobilising people in Delhi, he became a key figure in campaigns against laws such as AFSPA and UAPA. His teaching career and political activism were brought to an abrupt halt on 9 May 2014, when the Maharashtra Police picked him up while he was returning home for lunch.
Played out like an abduction, Saibaba’s car was intercepted minutes away from his residence by plainclothesmen. Not only was he not shown a warrant, no element of due process was followed in arresting him. While his wife AS Vasantha along with some of his friends and colleagues approached the local police station with a missing person complaint, he was flown that very evening to Maharashtra and lodged in Nagpur Central Jail.
Two months later, on 9 July, a team led by Justice (retd) Kolse Patil, Varavara Rao and AS Vasantha visited Saibaba in jail to ascertain the jail conditions. Despite being a disabled person, he was held in solitary confinement and not even a wheelchair was provided to him. At that time, Justice Patil raised objections over his living conditions.
Though Saibaba has approached the sessions court twice for bail on medical grounds, the court rejected his plea both times.
On 12 February, in a video conference with Saibaba, the judge had expressed concern seeing his deteriorating health. Upon medical examination, which was conducted after several orders from the sessions court, it was found that the professor had a bent spine resulting in crowding of the ribs affecting the lungs and the heart.
Noting other cardiac problems, the local doctors had advised angiography, which cannot be performed in jail. Medical reports also showed stones in the gall bladder and kidneys. Though most of the medical details were reported to the court during the hearing of the last bail application, the Nagpur bench of the Maharashtra High Court rejected his plea.
Three of his co-accused, Pandu Narote, Mahesh Tirki and Prashant Rahi were granted bail, but the judge reiterated that the documents recovered from his house “are going to show that the applicant accused is deeply concerned with Naxalactivities” and refused to grant him bail.
Meanwhile, the English teacher’s colleagues and sympathisers have intensified the campaign for his release. Teachers from different universities organised a symbolic hunger strike on 9 May demanding his release.
“Dr Saibaba’s only ‘crime’ is that he stood in solidarity with the marginalised who were protesting against the corporate loot of natural resources. He was protesting with them against the current development model practiced in the world, which is making the already marginalised even more impoverished. Coming from a similarly disadvantaged background, Saibaba talked about the plight of the oppressed through his classroom teaching and activism. It is to protect the crisis caused to the legitimacy of the State by activists and academics like him that the State has started curtailing dissenting voices through arrest and torture. It is no wonder that the courts have rejected his bail three times despite knowing about his physical condition,” read a statement released by the teachers of the Delhi University, also endorsed by Nandita Narain, president of the Delhi University Teachers’ Association.
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