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Its soon going to be six years since the Gujarat carnage took place in our ‘Democracy’. The actions we have seen so far have not been surprising. The Chief Minister gets re-elected, none of the people who arranged the attack on the muslims have been prosecuted yet and off late, the Court yells at one person who has been instrumental in getting justice to the victims of the carnage.
Let me begin by re-counting some of the incidents to most of my readers. The Tehelka issue on the Gujarat riots have been quite helpful in helping most of us re-visit the events. For people like Babu Bajrangi, the magazine is his worst nightmare. Surely it should be so when he is caught in the sting operation which giving an account of the Naroda Patiya massacre.
“Kauser Bano, was nine months pregnant that day. Her belly was torn apart and her foetus wrenched out, held aloft on the tip of a sword, then dashed to the ground and flung into the fire. Bajrangi recounts how he ripped apart “ek who pregnant b******d sala”; how he showed the Muslims the meaning of wrath – ‘if you harm us, we can respond- we’re no khichadi kadhi lot”
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Then there’s also 22 year old Sufiya Bano who was raped and burnt in front of her father and when the father and three sons went to save her, the sons were killed and the father beard was cut off.
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Naroda is an open area with a large pit that is actually a cul de sac – a slope leads into it from one side but the other side is a sheer rise that cannot be scaled. Several muslims had sheltered there; the mob surrounded the pit, poured fuel into it and set it afire. Around 200 people have said to have died in it.
Without going further in recounting these horrid tales, it must be stated that the action taken against those who were involved(hindus) in these crimes is as good as nil. On the other hand, the Supreme Court has denied bail to each of the 84 accused (muslims) of the burning of the Sabarmati express and all of them have been in jail for the past six years.
This is the irony of the Indian governance system. We are told that we are a democracy where everyone’s rights would be protected and there shall be no arbitrariness involved but on the other hand, communalism has penetrated so deep within us, that it is evident in the everyday actions of our Government. Most of the muslims in Ahmedabad still live in ghettos with inadequate facilities of water and electricity while Modi and his compatriots manage to come to power on the pedestal of “Gujarat Shining”.
Now when most of these issues are highlighted by Teesta Setalvad in an article, she gets a highly critical reaction from the Court. Well the article highlighted the fact that the Supreme Court had not done enough to deliver justice to the victims of the Gujarat riots and in fact was delaying the hearing time and again and not giving it much importance. This in a country where the Court has held that “Justice delayed is at par with Justice denied”. She also raised the following questions;
- · Can no questions be asked about the systems in operation in the Supreme Court of India?
- · Which matters get automatic priority and which do not?
- · Which matters suffer because of the delays and interim orders of the Supreme Court?
- · Is there no prioritization of cases where issues of personal liberty, denial of basic fundamental rights, mass crimes and impunity to the rich and powerful is concerned?
If we can ask no questions, we will receive no answers. - · The time has come to question the basic accountability procedures of the highest court in the land.
Has the Supreme Court of India lost its soul and is it turning a blind eye to cases related to fundamental rights violations? - · If so, where then do we turn?
In reply, when the Court was to hear the case on the 16th of this month, the Court was apparently fuming over the article and went to the extent of asking the lawyers whether they had any association with Teesta and if so, that they wouldn’t be hearing the petition. Well, quite juvenile I must say in a land where free speech is a highly cherished ideal.
So while the we enter the Sixth year since the riots took place, a lot of questions are raised about the efficiency of the administration in maintaining order and securing justice to the victims. In addition to this, it is disheartening to point out that even still we don’t have a law dealing with mass crimes in India and the Communal Violence Bill has not yet been passed. Like I said earlier, the irony of Indian democracy.
(See articles in the hyperlinks provided in the text)
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The recent events in Gujarat are tattering to an Indian’s heart. It’s not just the Tehelka tapes that have come out in the open; the banning of TV news channels in Gujarat, disgusting comments by the Press and politicians are all a consequence of it which further saddens me.
Mirza in an wonderful read pens down the responses,
BJP spokesman Prakash Javadekar said “This sting has rendered Tehelka as the investigative wing of the Congress”. BJP leader Rajiv Pratap Rudy said “Definitely the sting operation and its content are suspect, because we are aware for sometime that there are detractors against Modi in Gujarat and there is the Congress party, which has lost all ground in the state.” They talk about everything but not about the inhuman brutality. Vir Sanghvi wrote very aptly regarding this in 2002 “I was not surprised when the political establishment scrambled to look for conspiracies: the CIA was behind it, the ISI sponsored Tehelka…My point then, as now, was simple enough: let us first deal with the revelations and then worry about Tarun’s so-called backers.”
Today Chandan Mitra, the editor of the 143 year old newspaper Pioneer and a BJP supported Rajya Sabha MP, invoked the third and the fifth point; Modi has won various elections and why do you take out dead issues now. This is the editor of one of the oldest national newspapers of India! In which moral system and when was justice decided by the street? If someone wins elections does it exonerate them? Mr. Mitra, is the state of journalism going down to this level in India? And since when did we start forgetting about injustices on the pretext of moving ahead? Should we have said the same to the Sikhs who were hounded in 1984? Should we have said the same to the utterly vulnerable Jews who were brutalized and killed in millions by the Nazis? That it will be all decided in the court of law and forget about it in the social aspect.
When I myself went to Ahmedabad last december, I was shocked to learn about and see the ghettoization of the Muslims; rich and the poor in the officially put ‘world class city’. But the other issue was, whoever I met (hindus only), were sort of equating Modi to Gabriel as a messenger of god.
And what about free speech? The governments decision to ban all the TV channels that showed the news clip is now a rider to the free speech clause in the Constitution. Hah! gone are the days when Article 19 1(a) was the ultimate sword for the press. If my readers are interested, I’d request you to read Express Newspapers v. Union of India; an amazing case that exposed the link between Gov action and free speech in 1985 and the Delhi riots. (A related article here)
My latest paper. Suggestions invited.
Introduction
Equality in administrative law and procedure is a Dicean concept. It delves into the fact that there must be equality in treatment between public servants and the ordinary citizen. The State- citizen divide in the legal system has always been a debatable issue that only some have sought to address. This issue also comes to the fore in the area of criminal law.
With its roots in the French droit administratif, the system of having disciplinary proceedings for certain crimes conducted by public servants is a facet of the Indian administrative system. It marks the diversion from the old common law system. That however is not the problem. The problem arises when there is a difference in the punishment meted out to these persons for the crimes they have committed that are way different from those meted out to the ordinary citizen for the same crime. Section 197 of the Code of Criminal Procedure still remains as a bar to prosecuting government servants with the latest case being that of UP Chief Miniser Mayawati where the Governor refused to give a sanction under Section 197. This despite a SC decision in Prakash Singh Badal v. Union of India, in December 2006 stating that no sanction is required in corruption cases.
It is observed that the Indian legal system is one bridled with impunity and looks at placing the State above the law. This, despite very well knowing that the state is the creation of the law and consists of the ordinary man itself.
In light of the above theoretical framework, this paper would like to explore the diverse link between disciplinary proceedings and ordinary criminal law. Along with analyzing the laws relevant, the researchers would also be looking at the collection of data concerning the punishments to public servants and finally presenting an argument as to why such a system must not be present today.
……………. Download full paper .
STATE SPONSORED ARMED CONFLICT :
THE SALWA JUDUM AND THE STATE OF CHATTISGARH[1]
Joseph Stalin once said, “One death is a tragedy, a million is a statistic”. Human emotion does not seem to ponder about the deaths occurring in numbers but seems highly passionate about the death of one being. The story of the Salwa Judum in the State of Chattisgarh is no different. Every month more than 300 people die as a result of fighting between two groups and till date more than 40,000 are displaced. The idea of violations and crimes in numbers just seems to baffle us.
The ‘Salwa Judum’ in Chattisgarh is termed by the government to be an anti- maoist force formed by the common man himself. For those sitting in the seats of government power, it is an alternative to tackling the Maoists and anti- naxalite factions in the state. But there is something more to it. In December 2005, a fourteen member team from five organizations all over the country conducted an investigation and the revelations were shocking. What the Chattisgarh government calls an anti- naxalite force seems to be more of a state sponsored private army supplied with guns, ammunition and basic supplies to deal with the Maoists.[2] On the basis of the fact-finding, three facts stood out strongly, First, that the Salwa Judum is not a spontaneous people’s movement, but a state-organized anti-insurgency campaign. Second, the situation is not one where the ordinary villagers are caught between Maoist- State clashes. Rather than questioning its own nonperformance on basic development, the government has resorted to clearing villages on a large scale. Tens of thousands of people are now refugees in temporary roadside camps or living with relatives with complete disruption of their daily lives. Prospects for their return are currently dim. Third, the entire operation, instead of being a peace mission as it is claimed, has escalated violence on all sides.[3]
The Salwa Judum is a force in the State of Chattisgarh led by elitist landowners, traders and trained by State police personnel. Not only that but these personnel are paid salaries out of State funds.[4] The facts in this regard are disturbing. There are child soldiers prevalent amongst the armed people. More than 40,000 tribal people have been displaced till date and 80% of the population in DanteWara district in Chattisgarh have been victims of the clashes.
There is no doubting the fact that atrocities and human rights violations have been committed. More importantly, the problem is that it is a state sponsored armed conflict. To tackle the naxal menace, the state seems to have formed a private army and removed the burden from state forces. In most territories, civilians belonging to the Salwa Judum are seen carrying around guns and ammunition and not even a single state police group is within the area. The problem does not stop here; both the forces are known to kill civilians who should not be a part of this conflict. There is evidence of torture techniques being used, rapes and a host of other human rights violations.
Questions need to be answered. Can the state sponsor a private army to handle an internal disturbance? Can the state discharge its constitutional duty to protect, if any and hand it over to private groups? The idea of state sponsored conflicts is clearly in violation of UN principles[5] and other international obligations. Protocol II of the Fourth Geneva Convention categorically puts forward the rights of victims in non- international armed conflict. These include the provisions of basic needs, health and compensation.[6] Furthermore, without doubt, the State has a primary constitutional duty to protect its citizens from any disturbance; external or internal.[7] The maintenance of law and order in the territory of the state is a constitutional obligation that states must follow. The Supreme Court has used this explanation in the cases of terrorism as in Kartar Singh v. Union of India[8], and AN Ray C.J. in ADM Jabalpur v. Sivakant Shukla[9] used this obligation to justify the violation of rights during emergency. If such explanation has been used in these cases then certainly they are applicable in this instance too and no exceptions can be created.
The discharge of such an obligation is inherently related to the power- responsibility equation. If power is to be delegated, which in this case is to deal with naxal factions, so must responsibility and both of them can’t be separated. Not surprisingly then, no one seems to be taking responsibility for the violations and deaths of civilians in Chattisgarh while the power seems to have been conspicuously discharged and frequently used and abused.
In May, 2007, Nandini Sunder and Ramchandra Guha filed a petition before the Supreme Court challenging the Constitution of the Salwa Judum in Chattisgarh. While the case is still sub judice, I would like to put forth an observation of the Court in this regard. Initially the Bench consisting of Chief Justice KG Balakrishnan and Justice Raveendran asked counsel that when the Central Government in its assessment to control naxalites menace permitted local restraint groups to be armed, “should the court interfere in such a policy. You must understand that naxalites go on killing innocent people in villages. The police are not coming to the rescue of these people. What is wrong in arming the local people to counter the naxal menace.”[10] (Quoting the Court)
Only after the atrocities and human rights violations were bought to the notice of the Court did it issue a notice to the Government of Chattisgarh to respond it. It is interesting to note the observation of the Court in this regard. With all due respect, the Court has commented that the formation of a state sponsored army is justified to meet the end of handling the naxalites. In doing so, the Court has again given sanction to a means- end approach. That is, state action is to be held valid if it is purposeful in nature and meets a desired end. Such is the approach taken by the Court in the case of terrorism and emergency. The Naxal problem just got itself temporarily added to the list. This seems to attract Jhering’s notion of law serving as a means to an end[11]. Accordingly, in such a purposeful evaluation of law, even if it sacrifices individual liberty, it will be valid[12]. To quote from Kartar Singh’s case[13] ;
“that it has been felt that in order to combat and cope with such activities effectively, it had become necessary to take appropriate legal steps effectively and expeditiously so that the alarming increase of these activities which are a matter of serious concern, could be prevented and severely dealt with.”
With this application of this approach, the Court seems to discount the fact that rights and constitutional obligations are inalienable and cannot be discarded to meet an particular end. The point needs to be noted here that not only has the state outsourced its duty to protect its citizens but also has given them a free hand do commit human rights violations and not hold them accountable for killing people. Such state action cannot be justified at any cost. It is hoped that the Supreme Court would take note of such rights violations, disband the Salwa Judum and concentrate on the welfare of the lakhs of tribals in the State who have fallen victim to the clashes. The law has been violated and someone has to be held accountable for it and the State cannot get away with this.
[1] Aditya Swarup, B.A.L.L.B. (hons.), NALSAR University of Law, Hyderabad.
[2] The Study was conducted by People’s Union for Civil Liberties (PUCL) Chhattisgarh, People’s Union For Civil Liberties (PUCL) Jharkhand, People’s Union for Democratic Rights (PUDR) Delhi, Association for the Protection of Democratic Rights (APDR) West Bengal, and Indian Association of People’s Lawyers (IAPL). The details of the Study can be found at http://www.pucl.org/Topics/Human-rights/2006/salwa_judum.pdf (last visited 12th May, 2007).
[3] Ibid.
[4] “War in the Heart of India: An Enquiry into the ground situation in Dante Wara District, Chattisgarh”, Independent Citizen’s Initiative, 20th July 2006.
[5] UN General Assembly Resolution 49/60 of 1995,Measures to eliminate terrorism : UN Security Council Resolution 1373/ 2001. Also to be noted is the Lockerbie Case (UK v. Libya), 1992 ICJ Rep. 3 where Libya’s sponsoring of activities was held in violation of International Law.
[6] Protocol II, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. Though India is not a party to this Convention, it still has a customary obligation to protect such people.
[7] Article 355, Constitution of India. A reading can also be inferred from the Directive Principles of State Policy.
[8] Kartar Singh v. Union of India, (1994) 3 SCC 569.
[9] ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
[10] “Constitution of Salwa Judum Challenged”, THE HINDU, 20th May 2007.
[11] R. Von Jhering, “Law as a Means to an End”, MDA Freeman, (ed.), Lloyd’s Introduction to Jurisprudence, 7th Ed. 2001, p. 703.
[12] I. Jenkins, “Jhering”, (1960-61) 14 Vanderbilt L. Rev. 169.
[13] Kartar Singh v. State of Punjab, (1994) 3 SCC 596. The approach was further upheld by the Court in People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580<!–[if supportFields]> TA \l "People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580" \s "People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580" \c 1 <![endif]–>.
Chapter III – POLICE AND THE LAW
The above chapters are indirectly related to a greater issue of accountability and responsibility on the part of the government on the part of the government to educate the citizens about the law and not abuse the powers in the hands of the state machinery. In this chapter we shall discuss mainly about the attitude of the police towards the poor and the treatment meted out to them. This will later lead us to conclude the need for checks in the police functioning today.
3.1 The fallacy of Ignorantia Juris Non Excusat
Legal systems all over have been based upon the common maxim of ignorantia juris non excusat, that is ‘ignorance of the law is no excuse’. The principle, the had first originated in the Code of Justinian [1], was used as a defence by the government when people said they did not know about the law. The reason then was that it was simple to understand and not complex in nature.
With time, law became more and more complex in nature and so did the excuse of the government for using this principle. Now, they said, “it was a small evil in exchange for a greater good”[2]. If this was removed then everyone would claim that they did not know the law which would then become difficult to prove. What it then did become was a manner by which the government shed the responsibility for educating its citizens about the law. It removes any trace of accountability on the part of the government and places the burden on the common man to know the law.
In the past few decades, some Courts in the world are trying to do away with this maxim in the area of ‘rights education’. They seek to place the burden on the government to educate the citizen[3]. It all started in 1966 with Miranda[4] and similar instances in the United Kingdom[5] and other European nations[6]. In the USA, this issue was recently upheld in Dickerson v. United States[7]. As regards to the situation in India, the Courts have always sought to apply and interpret the maxim in its strict sen.[8]se without any exceptions In this way, DK Basu was a relief to the poor. But the fact remains that the government does not have any responsibility to educate the poor in this country. All mechanisms of accountability seem a distant dream.
I argue that the rights of the poor would be secured only if the government takes upon itself the responsibility to protect them. Such responsibility does not seem to exist in India. It is then imperative that if this country must develop, the rights of a 250 million people must be secured.
3.2 The Police and Implementation of the Law
I would like to approach the aspect of police accountability by showing how the police is presently implementing the law. The data presented is based on the research that was conducted by myself in the month of December in the city of Mumbai.
The DK Basu judgment says that the rights laid down in para 36 must be placed in a conspicuous place in every police station. In the eight police stations that were visited, only three of them were in a place that could be well seen. The rest five were in the office of the inspector which is visited only by a few of them. These five police stations were in the slum areas of Mumbai that included the Dharavi, Sion and Chembur areas of Mumbai. On questioning a few police constables, I learnt they knew about the procedure and the way it was to be followed.
On enquiring as to how many cases are reported to the Control room within 24 hrs, three persons reported by myself were not known to the control room for the next 48 hours. One of them by the name of Walekar was placed in a police locker for 2 days and there was no record of his arrest.
3.3 Police Brutalities in India
The issue of police brutalities and custodial violence and no surprise in this system of ours. According to the statistics of the National Human Rights Commission alone, in the year 1999, there were 193 custodial deaths in the country.[9] Every day violence in the police station is not a new phenomenon. Sadly, there is no law in the Country to protect the citizens from torture specifically. Such brutalities have been read into the normal sections of assault[10] and hurt[11] in the Indian Penal Code. The Courts have also at numerous instances discussed the issue of custodial violence [12] and condemned the same.
In the Survey conducted by the researcher, around 41 % of the people interviewed had been subjected to some form of violence or the other at the hands of the police. Some of them also included lathi beatings and slaps. One of them, a juvenile, was even paraded around the police station in his underwear. If this is just an analysis of 25 odd people in the city of Mumbai, we can only imagine what would be happenning in the whole of India. I again get down to the same argument that there is a great need for police accountability in the country to stop such acts of violence against the poor and illiterate.
3.4 Reforms in the Police Act
We today have a 146 year old Police Act[13]. The first comprehensive review at the national level of the police system after independence was undertaken in 1977, when the Government of India appointed the National Police Commission. In its first report[14], the Commission dealt with the modalities for inquiry into complaints of police misconduct in a manner which will carry credibility and satisfaction to the public regarding their fairness and impartiality and rectification of serious deficiencies in the system. Various Committees that have been set up after this period like the Dharma Vira Commission, Julio Roberto Committee, Soli Sorabjee Committee and the Padmanabiah Panel have zeroed in on the maladies of the Police Act and called for drastic changes in the functioning of the system.[15] I argue that the issue at hand is not ‘police reform’ that these committees and judgments propose but that of ‘police accountability’. Our country has not taken a serious stance on the issue of Police accountability and the status of such investigations.
In the United States of America, the rights of individuals have always received supremacy over the investigation process.[16] This is to the extent that, if the rights of arrested persons are affected, then the investigation to that extent will be declared invalid.[17] In this manner, some degree of responsibility to follow the law is placed on the Police. Similar situations must be applied in India too so that the rights of the poor are protected in this country. The accused must have full knowledge of his rights at the time of the investigation and if he is not aware of them, the state must remind him of them.
[3] JW Meeker and John Dombrink, “ Access to Civil Courts for those of Low and Moderate Means”, 66 S. Cal. L. Rev. 2217.
[4] Miranda v. Arizona, 384 US 436 (1966).
[5] Criminal Justice and Public Order Act, 1994 (United Kingdom).
[6] § 136 Strafprozessordnung (German Criminal Procedure Code) : Letter of Rights (European Union)
[7] Dickerson v. United States, 530 US 428.
[8] State of Maharashtra v. Mayor Hans George, AIR 1965 SC 722.
[9]“Right to Free Legal Aid: Cause to Despair, Reason to Hope”, A Report of the Centre for Social Justice, 1st ed. 1998, p. 4.
[10] Section 324, Indian Penal Code.
[11] Section 321, Indian Penal Code.
[12] Prakash Singh v. Union of India, (2006) 8 SCC 1 : Vineet Narain v. Union of India, AIR 1998 SC 889 : Sube Singh v. Union of India, AIR 2006 SC 1117.
[13] Indian Police Act, 1861.
[14] Report of the National Police Commission, February 1979.
[15] Poonam Kaushish, “Police Reform: Who Should Control the Police”, Central Chronicle, October 25, 2006.
[16] Miranda v. Arizona, 384 US 436.
[17] Ibid.
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