Strong and small Julio Ribeiro

http://indianexpress.com/article/opinion/editorials/strong-and-small/

Strong and small

Modi is a tall leader. Then why does his government sometimes act in petty, vengeful ways?

Written by Julio Ribeiro | Published on:May 27, 2015 12:00 am

“Pseudo-secularism” is alive and kicking in our country. After I voiced my concern about the peaceful Christian community becoming a soft target of Hindu extremist elements, I received a pile of mail, overwhelmingly supportive but with the expected dose of hate messages. “Pseudo-secularists” outnumbered “secularists” by a wide margin.

What warmed the cockles of my heart was that the bulk of the support was from a wide assortment of Hindus, many of them old friends but many also individuals not known to me till then. A young Bengali executive I met at an airport came up to me to voice his agreement with my stand. The critics included a couple of my former colleagues in the IPS — incidentally, strangers to me — who, I learnt, had served in the country’s premier intelligence agencies. How could they have arrived at any objective conclusion in the course of their work if they were so steeped in a particular ideology?

Here, I must mention an honest, upright, remarkable police officer, a year senior to me in the service. S.E. Joshi, who hailed from a distinguished family in Amravati in Vidarbha, retired as chief of R&AW. When we were junior, he was the central intelligence officer covering Vidharba and Marathwada. I was superintendent of police of Parbhani district and then Nanded, both in the Marathwada region. Joshi would make half-yearly trips to review the work of his officers and stayed with me whenever he visited.

The Marathwada districts had been merged with the old Bombay state, later Maharashtra, from the nizam’s Hyderabad. The influence of the Razakars was still felt. The IB officer who patrolled my districts was a Brahmin from Vidarbha, as was Joshi. When I praised his deputy’s acumen, Joshi cautioned me to be careful in accepting all that he told me. “He is biased against Muslims,” he said, “and bias is a major defect in any intelligence operative’s armour”. It was a lesson I never forgot.

Contrary opinions, even extreme ones, should be taken seriously. They exist in every religion in all countries of the world. Religion brings out the best and the worst in human beings. We are lucky that hatemongers can be counted on one’s fingers. Among the voices which did not like what I had said was that of Jagdish Bhagwati, an internationally known economist, and of T.V. Mohandas Pai, the IT wizard. I got the feeling that they felt that my writing would denigrate Prime Minister Narendra Modi and weaken him in the eyes of the Western world, which he was so assiduously wooing for investments.

Actually, I want Modi to succeed. Let me make this clear. After Indira Gandhi, he is the only strong leader we have had. And the country needs a strong leader, a determined leader, a charismatic leader. Modi gives the impression that he is such a leader. Only he can change the mentality of a people. Many voted for Modi and not for the BJP — numerous Christians I know did. They voted for development and jobs. What needs to change if the country is to develop is the “chalta hai” attitude of the people when they routinely, though unwillingly, pay speed money to the lower rungs of the bureaucracy, when they disregard the rules of the road, when they litter public places without batting an eyelid and accept injustices without protest. Only a strong leader like Modi can lead a public campaign to rectify these innate defects in our collective psyche.

But instead of concentrating time and energy in bringing about such fundamental changes, his governmentseems to prioritise fixing Greenpeace and Teesta Setalvad, that intrepid champion of justice for the Muslim minority that fell victim to the 2002 Gujarat killings. In its anxiety to take revenge on Setalvad, the government has upset a universally acclaimed philanthropist organisation, Ford Foundation, which has funded a nationally recognised centre of learning and thinking, Tata Institute of Social Sciences.

Why is the Modi government wasting the precious goodwill it enjoyed after it was voted to power in small, mindless, negative acts of vengeance that do not behove a great nation? Is Modi the only giant among pygmies? We hear that he is the puppeteer who pulls all the strings from the PMO. In which case, how did this petty piece of governance get past him — especially when the complaint against Ford Foundation’s support to Setalvad’s NGO emanated from his own home state, Gujarat?

I hope Bhagwati is listening. He should advise Modi to refrain from acts of petty-mindedness that will only boomerang on all his other valiant attempts to reform the economy. And Pai should add his bit of advice. I am sure that on this issue, both of them think like me and numerous other fellow Indians.

The Modi government has completed a year in office. Its report card is positive. It has secured good grades in certain subjects — corruption in the higher reaches has gone down, noticeably down. In the lower reaches, it is business as usual. Modi will have to act drastically against those who refuse to reform. The voter must know that she can get what is legally due without having to grease palms.

And that brings me to the question that is uppermost in my mind. I run an NGO called Public Concern for Governance Trust (PCGT). It was established a decade ago in Mumbai by B.G. Deshmukh, a former cabinet secretary and a true servant of the public. The PCGT relies heavily on the Right to Information Act to fight the day-to-day corruption that troubles people.

Why is Modi so wary of the RTI that he does not think it necessary to appoint a chief informationcommissioner and information commissioners at the Centre? Is this his idea of good governance? He was also reluctant to fill the posts in Gujarat when he was chief minister there. Does he feel that he can single-handedly fight corruption without institutions in place? There are many others like me who would like to know.

The writer, a retired IPS officer, was Mumbai police commissioner, DGP Gujarat and DGP Punjab, and is a former Indian ambassador to Romania.

The law on Extra Judicial Killings Part- II Teesta Setalvad Published in Rashtriya Sahara, Urdu, May 2015

The law on Extra Judicial Killings

Part- II

Teesta Setalvad

Why do Indian institutions observe the law more in it’s breach? A critical judgement of our Indian Supreme Court makes it mandatory for the law to ensure complete transparency and accountability in the case of brutal acts of killing.

What must be done after the incident of extra-judicial killing?

In September 2014 the Supreme Court of India (in PUCL vs State of Maharashtra ) laid down clear guidelines about the action that needs to be taken in the aftermath of an incident of extra-judicial killing:

a) para 31(2): "If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the Code, the procedure prescribed under Section 158 of the Code shall be followed."

So the first requirement is the recording of a First Information Report (FIR) about the incident. At a minimum the FIR must contain- the fact that the 'encounter' took place, where it took place and details of the resultant deaths that occurred. Shockingly, it is common practice for the police, particularly those in the erstwhile undivided Andhra Pradesh to lodge the FIR against the deceased individuals without naming the police personnel responsible for the deaths. However in the PUCL case the Apex Court has clearly directed that the fact of 'homicide/murder' of the deceased be recorded. By implication the names of the police personnel who caused the deaths and the offence of 'homicide/murder' must also be mentioned in the FIR, especially because the identity of the perpetrators is already known.

2) "31(3): An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter)."

So the next requirement is that the Investigation Officer must be: 1) from the CID or another Police Station and 2) of a rank higher than that of the person who headed the police party.

3) 31(3)(g): "Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed."

31(13): "The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution."

So the next requirement is that the weapons used in the incident must be taken away from the police personnel, preserved and sent for ballistic examination. I am unable to understand the connection with Article 20 as it is about non-self incrimination and protection from double jeopardy. Perhaps readers might like to educate me about this.

4) "31(4): A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code."

So in the Telangana case- the inquiry into the murder of the undertrials must be conducted by a Judicial Magistrate under Section 176, CrPC as the deaths occurred in police custody. But in the Andhra case an inquiry under Section 176 may be conducted by any Magistrate from the Executive or by a judicial Magistrate.

5) "31(15): No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt."

So in both Telangana and Andhra Pradesh, human rights activists and organisations must watch out for the list of awardees of gallantry or police medals or promotion orders that may be given to the officers involved in the in two incidents in future.

6) 31(16): "If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

There are many more directions in the PUCL judgement. Under Article 142 and 144 of the Constitution they become the law of the land which must be followed scrupulously.

Meanwhile, here are some of the NHRC's guidelines about how post mortem (PM) examination of the bodies of victims must be conducted after incidents of extra-judicial killings occur (2nd attachment):

1) Clothing of the body of the deceased should not be removed by the police or any person. Media reports indicate that the bodies of the victims in the Andhra Pradesh incident had been stripped to their underclothes and their clothes were lying in a heap beside them (See: http://www.tehelka.com/mystery-surrounds-the-killing-of-alleged-20-sandalwood-smugglers/) So the trend of disobeying the law, norms and standards continues after the incident. This is why I have put together these norms and standards.

2) The PM examination must be videographed along with a recording of the voice of the doctor conducting the examination. The Apex Court in the PUCL case has directed that the PM examination must be conducted by two doctors from the District Hospital one of whom should be its head, as far as possible;

3) 20-25 colour photos pf the bodies must be taken from the angles specified by the NHRC. The photography/videography must be done by a person trained in forensic photography and videography;

4) Within 48 hours of such incidents the police must send detailed reports to the NHRC and later on send PM reports, reports of the magisterial inquiry, ballistic examination and most importantly reports containing the names and designations of the officers responsible for the deaths and whether the use of force was justified and the action taken was lawful.

All these directions and guidelines have been laid down and must be followed so that each incident is properly documented, investigated and the guilt of the persons responsible is determined for further action in law.

Finally, as RTI activist Venkatesh Nayak has pointed out, since those killed so brutally and the police are citizens of India, the expenses of the salaries of those who killed are borne by the Indian taxpayer, the sandalwoos trees (centre of the Andhra incident) are also public property, the authorities must release information about each and all of these under the Right to Information Act, 2005!

The central government, under the Regime has virtually rendered paralysed the RTI by not appointing a CIC (Chief Information Commissioner) for months despite recently promising the Delhi High Court that it has! Transparency scares all those in authority making a mockery of democratic and accountable governance.

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When the law kills (Part – 1) Teesta Setalvad Published in Rashtriya Sahara Urdu, May 2015

When the law kills

(Part – 1)

Teesta Setalvad

More than a month ago, on the same bloody Tuesday, April 7, 2015, in the newly formed Telangana and Andhra Pradeh brutal killings took place. Two incidents, when lawmakers became the killers. ‘Extra judicial killings’ (and enforced disappearances) are issues of gross human rights violations where our Courts have spoken, albeit in a very delayed a diluted form.

Within five to six weeks of these ghastly killings (that did not make it to the private television networks for any rational or human rights based discussions) none less than India’s defence minister justified a trigger happy attitude in the armed forced in Jammu and Kashmir, when in an interview to the TOI, he said, “ Our proactive attitude is to identify terrorists and then effectively neutralise them. Every case is handled firmly with clear-cut intelligence for targeted kills, ensuring minimal if any collateral damage.” While there was suitable outrage at the remarks and the Communist Party of India (Marxist) – CPIM issued a strong statement through its polit bureau, the overall lack of accountability in our law and order machinery, unlawful killings and disappearances especially when it comes to margialised sections, our poor, our Muslim minority, our Dalits and Adivasis raises serious questions of humane governance and accountability in our democracy.

The two most recent unlawful incidents took place in the Warrangal district of Telangana where the police escorting five under-trial prisoners shot them dead on the pretext that one of them tried to snatch a firearm from one of the escorts in a bid to flee police custody; and the second incident where 20 men alleged to be smugglers of red sandalwood were shot dead in the Seshachalam forest of Chittoor district in a joint-operation conducted by the Andhra Police and Forest Officials.

It is worse how the head of the Andhra Police, Director General of Police, J V Ramudu when questioned by journalists, whether the police in the Chittoor incident could have shot the deceased in the legs to avoid such a large number of deaths is alleged to have replied: "Is there a law that you should shoot on the legs? Dont ask nonsense questions(sic)". Readers may check this news item at this link: http://www.hindustantimes.com/india-news/andhra-government-defiant-continues-to-defend-chittoor-encounter/article1-1335343.aspx. This denila of their basic functioning and accountability sums up, in a nutshell, the attitude of the law to it’s citizenry.

The Andhra Pradesh Police Manual mentions the following norms regarding the use of force in relation to smugglers who are categorised under 'Organised Crime:

"J Organised Crime:

543-1-B. Organised crime is committed against property, persons or human welfare, engineered by a leader with members professing fierce loyalty. Organised crime in a large measure affects law and order and public order...

D. Boot legging, prostitution, gambling, manipulation of bids or tenders in auctions and contracts, land grabbing, illegal possession or dispossession of property, protection money, rigging elections, loan sharking (usury), extortion, kidnapping for ransom, drug trafficking, illicit trade in fire arms, explosives, smuggling, thefts of antiquities and cultural properties, trading in animal skins and human organs are some of the activities of criminal groups, which are some times small outfits and sometimes large...

546-3-A-D. The resistance to arrest is likely in such cases. In effecting arrest no force than what is permissible under the law should be used. All guidelines regarding arrest should be complied with." (Vol. 2, Chapter 29 accessible at:http://apstatepolice.org/jsp/appm/appm/appm/manch/c30.htm#30543)

954-1-A. Police are expected to work within the framework of law and are not expected to take law into their own hands on the plea that the existing law is not sufficient. They cannot play that role of lawmakers and judiciary. It is for the other wings to take care on the point of sufficiency or insufficiency of law. Police are only expected to play the role of an enforcing agency.

Reasons for violation of human rights by police

950-1. Some of the reasons for violation of human rights by police can be attributed to the following,

A. Lack of interrogation techniques.
B. Lack of scientific temper and professionalism.
C. Lack of knowledge of criminal law and procedures for investigation.
D. Unrealistic public expectation for results.
E. Political and official pressures for quick results.
F. Misconception that laws are not sufficient to achieve results legally.
G. Sadistic pleasure on the part of some police officers.

Code of conduct for the police to avoid allegations of violation of human rights

954-1-B. The police in establishing and enforcing law must as far as practicable, use the methods of persuasion, advice and warning. When use of force is inevitable, it must be as per the procedure and to be the bare minimum.  (Vol. 2, Chapter 54 accessible at: http://apstatepolice.org/jsp/appm/appm/appm/manch/c54.htm#3v54951)

Right of Private defence

740-3. In the matter of dispersal of unlawful assembly the right of private defence can be exercised to protect the life and property of public or to protect themselves. This right can be exercised by using force as much as is necessary and as long as it is necessary. This right extends even to the causing of death in certain cases as laid down in section 100 IPC as against body and in section 103 IPC as against property. The police should exercise this right cautiously. Any amount of exceeding the right may make them liable for penal action as per law. Therefore, the police officers must make a judicious use of this right, only in dire need to save the life and property, when occasion arises as shown in sections 100 and 103 IPC."  (See Vol. 2, Chapter 39 at: http://apstatepolice.org/jsp/appm/appm/appm/manch/c39.htm#2v39740) 

Not once, not twice but thrice does the Andhra Pradesh Police's own operations manual require reasonable restraint in the use of lethal force. The DGP's alleged statement is in complete violation of the norms and standards laid down by the police for themselves. I am not even going into the international standards on the use of force and also what has recognised by Courts in India to buttress my argument as they only strengthen this position.

The National Human Rights Commission (NHRC) and the High Court in Hyderabad have sought reports about the Chittoor incident from the Government. The district administration has ordered a magisterial inquiry into the Warangal incident while the NHRC has issued notice demanding a report of the incident from the Telangana Government. In Telangana and Andhra Pradesh there is outrage. But not much seems to have affected the establishment.

Worse is the statement of the Defence Minister. It is almost a sanction for unilateral killing if the Intelligence decides that someone is a terrorist. Notorious for its mis-judgements and misdemeanors this wing of our state law and order apparatus, (the IB and RAW) are not accountable to Parliament even, years after operations are ‘planned’ and ‘executed.” Besides be it in the Hashimpura case (in which a trial court recently acquitted 16 persons in probably India’s worst ever case of extra judicial/custodial killings, the paramilitary, military and army have been virtually held completely unaccountable and let off the hook.

Despite judgements of the Supreme Court that, under Articles 142 and 144 of the Indian Constitution become the law and need to be implemented, impunity rules. And the Indian people suffer at the hands of an increasingly unaccountable state.

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Justice and Last Teesta Setalvad Published in Rashtriya Sahara Urdu, May 2015

Justice and Last

It would be easy when you read a book like the one Mufti Abdul Qayyum Husain Mansuri has penned, I am a Mufti And I Am not a Terrorist in Gyarah Saal Salokhon Ke Peechen,  a book recounting the unspeakable experience of being dubbed a terrorist for a crime he and others did not commit. Though it took close to eleven long years, on May 16 2014, the day the man who was home and chief minister of Gujarat (and indicted by the judgement dated May 16 2014) swept to power in Delhi, the Mufti was set free acquitted.

It was past 8.30 p.m. on the next day that he and the others walked out of the prison in Ahmedabad to a changed reality. That city charred and scarred by the genocidal carnage of 2002 had seen Mufti (like so many other community leaders ) set up relief camps for the shelter and succour of the maimed and the traumatised. For that he had to pay and suffer the ignominy of being dubbed a traitor to his own country. Another Mufti, Maulana Umerji underwent a similar tragic faith after he had run the Godhra Relief camp where among others, Bilquees Bano had sought shelter.

The rank unprofessionalism of sections of the Gujarat Police’s Crime Branch (evident to this day...remember Vanzara walking of jail in February 2015 saying “Acche Din Aye Hai ???...” as also their Kashmiri compatriots shows a cross state, bonding by the security agencies when it comes to ‘terror’ attacks that is a real challenge to the Constitutional bedrock of our democracy.

There are many things we could say about the book published by the Jamiat Ulama Gujarat and Maharashtra, about the quality of printing editing production etc. All that could have been better, much better. But much more than the obvious, it is the courage of conviction that shines through in the very act of publishing. Regardless of the not most presentable quality, the fact that an organisation like the Jamiat has brought this shame faced truth before us all, raw and questioning, should make all of us Indians, think. Will it?

We live in a state of de-santised emotions where the daily firing squads led by some television anchors prevents any introspections into systemic lapses. Serious injustices.

It was bad enough to read about the pathetically cruel attempts to make the Mufti write and re-write the letter that would damn him (and which was so convincingly disbelieved by the Supreme Court) with a pack of lies concocted by the sick minds of the Gujarat crime branch. One sentence that struck me deeply was towards the end of the book when the Mufti is describing the undescribable joy he feels the day of the ‘convicts’ release.  Outside the jail, his jail companion, Hjai Farooq had made a bed of flowers that looked like a carpet...it was an emotional scene as fellow convicts, relatives all hugged each other. Loud and victorious slogans rent the air. Large sections of the print and electronic media were present and detailed euphoric interviews were taken. Very little got pubished or telecast, however. As the Mufti charmingly puts it, “But perhaps it was the censorship of the media, they censored thee whole talk.” Remember it was also the day when an election result had been declared.

As Mufti Abdul Qayyum Mansuri says the judgement delivered by the Supreme Court is a symbol of true justice which, in this fearlful and depressed environment is a ray of hope and motivation for all, including Indian Muslims.The Judgemet apart from acquitting the innocent has exposed the lies of the oppressor and the incompetence of the investigation agencies. Here was a case where the Supreme Court had used its special powers and re-examined chits in Urdu, so called Fidayeen’s clothes, dissected the cynically concocted evidence.

The moment the historic judgement was delivered, one of the senior advocates for the accused Ms Kamini Jaiswal stood up and said that “As our clients have been proved innocent and stayed imprisoned for 11 years, the Court should take immediate action for their release...because even after being acquitted the formalities and legal procedures are lengthy in which the Sessions court and Jail Authorities take many days.”

A wireless fax message was sent to the Sabarmati Jail authorities by the Supreme Court thanks to which the unfairly and unjustly held accused were released the next day!!

The quiet drama that was unfolding here in the Supreme Court, a human drama that reaffirmed faith in justice and non-discrimination meant that the Court accused all accused including those sentenced to lesser sentences. The Court held that the case was totally foisted on them and they were uninvolved and innocent.

What is remarkable is that the POTA Trial court and the High Court of Gujarat had both convicted the accused and therefore the SC effectively was overturning the concurring judgments of 2 courts. The entire case rested on confessions given by the accused, which were repudiated later on (i.e. withdrawn by them). The SC pointed out that there were so many inconsistencies amongst the confession statements themselves, that they could not be believed, apart from a important point, that there was no independent evidence to lend support to the confessions. The SC pointed out poignantly that the effect of such failure to notice inconsistencies was that the accused found themselves convicted and sentenced for serious crimes.

The following quotes are poignant and tell their own story:

Para. 131: " ..... take note of the perversity in considering this case at various stages, right from investigation level to the granting of sanction by the State Government ..... We being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human Rights of the citizens of this country were presented before us.”

 Para 136: "Before parting with the judgment, we intend t express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which is resulted in their conviction and subsequent sentencing".

Such verdicts no doubt reaffirm each citizens faith in the judiciary. The tale of trauma and injustice deserves fair recompense and prosecution of the perpetrators.

http://supremecourtofindia.nic.in/outtoday/Crl.AppealNo.2295-2296of2010.pdf

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Hashimpura Unpunished, the Trend Continues Teesta Setalvad Published in Rashtriya Sahara Urdu, May 2015

Hashimpura Unpunished, the Trend Continues

Once the judgement acquitting all accused in a charge sheet where evidence was deliberately not knitted together well was out, we saw a plethora of media coverage. Unfortunately much of this focused media attention was missing while the trial was on. If the camera had turned its spotlight on the travesty of justice maybe, just maybe corrections could have been made. There is a Section in the Criminal Procedure Code, Section 311, that puts responsibility on the Judge hearing a case to push the boundaries of the prosecution, if he or she finds that the prosecution has not done justice to investigation.

On April 12, 2004 a historic order of the Supreme Court of India, Zahira Habibulla Shaikh & Citizens for Justice and Peace versus State of Gujarat, for the first time in Indian jurisprudence recognized the role of the Court, the Prosecution and the need for a Witness Protection programme. It is a pity that the principles laid down through this judgement and so clearly articulated by the apex court are not being followed countrywide by the lower courts.

“The principle laid down in the Best Bakery case judgement - ordering retrial and reinvestigation in the cases in which all the accused had already been acquitted - would guide future cases wherever injustice was done. The apex court performed its raj dharma in protecting victims and witnesses in the worst-ever case against humanity.”-- VN Khare, Chief Justice of India, in an interview to The Times of India the day after he retired (May 2004).

It is worth as citizens and activists recalling the principles laid down. The Judges held in this judgement that “ No Due Process of Law, Cardinal Principle of Governance Followed-       ‘If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. ….The role of the State Government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State’s approach in assailing the Trial Court’s judgment.”

Further in Paragraph 44 the Judgement reads : “ The power of the Court under Section 165 of the Evidence Act is in a way complementary to is power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court... However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - `essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth.

 (End of Para 49. 8): “Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the original court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".

Finally the historic conclusion in Para 54: “Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.

Para 55: “The Courts at the expense of repetition we may state, exist for doing justice to persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself. “

While as activists and citizens we must protest bad investigation and deliberately weak charge sheets as filed in the Hashmipura case, we must know that the law provides for even our Courts to intervene and push the boundaries of the Investigation. In the interests of public justice. The unfortunate trend is for the Courts to deliver verdicts placing the entire blame on a deliberately compromised investigation. And compromised it is. But should we then not legitimately expect our Judiciary to step in, lower Court upwards?

That is the question that begs an answer.

Ends

A relentless attack to break the resistance Teesta Setalvad Published in Rashtriya Sahara Urdu, 2015

A relentless attack to break the resistance

Teesta Setalvad

First it was “Kidnapping of Zahira Shaikh”. Teesta Setalvad, the author of this column, was a co-petitioner in the Best bakery case. Zahira Sheikh was the star witness. The first information report was based on Zahira’s eyewitness account of the massacre that occurred during the Gujarat communal carnage. Fourteen people were burnt to death on March 1, 2002, when a mob set fire to the Best Bakery, owned by Sheikh’s family, situated below their house. Zahira was the boldest witness in the cases.

Zahira changed her statement in front of Vadodra Fast Track Court and said that she did not see anything. After a few weeks Zahira Sheikh arrived in Mumbai and said that she lied under oath because local Bharatiya Janata Party leader Madhu Srivastav threatened her. Zahira was given protection in Mumbai after the CJP, of which Teesta Setalvad is secretary, who helped her file an appeal in the Supreme Court asking for a re-trial outside Gujarat. The Supreme Court granted her request and ordered a re-trial in Mumbai, as it felt that a fair trial was not possible in Gujarat. The Best Bakery case was a landmark case, as it was probably the first in which the Supreme Court ordered a re-trial outside a State.

The trial was under way in Mumbai and the prosecution had examined 27 witnesses, including two eyewitnesses. Zahira was scheduled to testify in a few weeks. However, she suddenly appeared in Vadodara and changed her stand once again at a press conference organised by Ahmedabad-based lawyer Jal Unwala at a five-star hotel. The details of how Zahira reached Vadodara and who paid to get her there remain unclear. After the press conference, she was put up at a club near the High Court in Ahmedabad and was provided commando protection. The staff of the Silver Pak Guest House was driven out so that top political functionaries could visit without being observed. Today these top state politicl functionaries are players in national politics. It was the Holy month of Ramadan then, and Zahira, who had never worn a burqa until the second turnaround suddenly swore that she would never lie during this especially Holy period. Until the ignominy of television cameras (more honest in their inquiry then) found her quite happily consuming chicken biriyani in the middle of the afternoon.

Zahira denied that she was ever threatened by Madhu Srivastav and said that the Sessions Court judgment acquitting the 13 accused was “correct”. Asked about the petition filed by Teesta Setalvad in the Supreme Court, and her affidavit,  Zahira said that the petition was drafted in English. She said she was told that the document was regarding the Best Bakery property and thus she signed. Sheikh claimed she was not aware that she was filing a petition in the Supreme Court. However, the fact that Zahira was physically present in the Supreme Court during one of the hearings went against her. As also the fact that she was freely moving around in Delhi, even visiting the Nizamuddin Dargah where a few dozen persons could vow that she had not been kidnapped.

Zahira sheikh also alleged that Teesta Setalvad kept her locked in a flat in Andheri for seven months. However, the magazine Frontline learned that Zahira fell out with Teesta Setalvad and had been living with her sister in Mumbai since December 2003. She had even written to the Police Commissioner saying that she did not want police protection. Around the time of her testimony, Zahira demanded that Teesta Setalvad’s organisation give her a flat and a bakery in Mumbai, said the public prosecutor Manjula Rao.

There were other witnesses who had identified some of the accused, so the case stood strong without Zahira and her family.After seeing  Zahira Sheikh’s multiple flip flops , I. Teesta Setalvad went to Supreme Court and asked for a thorough investigation.Supreme Court Registrar report found that unaccounted money had found itself into Zahira Sheikh’s account. Madhukar Srivastava BJP MLA refused to give voice test samples to the SC (who is above the law) (2005).  Zahira Sheikh was put behind bars for her blatant lies and Teesta Setalvad was found innocent.

http://infochangeindia.org/human-rights/news/perjury-earns-best-bakerys-key-witness-zaheera-sheikh-jail-term.html

http://indiatoday.intoday.in/story/best-bakery-case-supreme-court-slams-witness-zahira-sheikh-for-flip-flops/1/193039.html

Then there was the article “Tutoring of Witnesses” (Sardarpura, Naroda Patia and Gaam). Special Courts Sardarpura, Naroda Patia conclusively held there was no tutoring (other trials are still on (2011,2012)During this time there were attempts to arrest Teesta Setalvad. However the Supreme Court of India stayed Investigations. http://www.cjponline.org/gujaratTrials/teestayasmeenstat.htm

Then there was the case of “digging up mass graves” in Lunawada when Teesta Setalvad was hundreds of kilometres away. She was illegally “added” as an accused 5 years (2011) after the FIR was lodged (2006) a la Raees Khan Pathan via Gujarat Police . Attempts to arrest Teesta Setalvad were made yet again but the SC has stayed Investigations

The latest assault was about ‘funds’ for Gulberg Memorial. When the anticipatory bail to Teesta Setalvad was denied by Gujarat High Court an attempt to arrest Teesta Setalvad yet again was made by Gujrat Police  within hours of the verdict.  Supreme Court stayed the arrest yet again.

After 20,000 documents INCLUDING credit card vouchers etc have been submitted –and every single filthy allegation of using trust funds for personal expenses disproved--now there is a new attack on Teesta Setalvad’s Sabrang Trust. According to Gujarat’s Minister of State, Mr Rajnikant Patel, the state government contacted the Home Minister requesting the inquiry into the Setalvad’s Sabrang Trust on the basis of their belief that foreign funds sent to her NGO, in particular by the US-based Ford Foundation, were misused in order “to create communal disharmony” within the state of Gujarat, and carrying out “anti-national propaganda” abroad. Following the letter from the Gujarat Government to the Home Minister, senior officers from the FCRA monitoring unit visited the registered offices of the Sabrang Trust, along with those of Citizens for Justice and Peace. With the full co-operation of Teesta Setalvad and her staff, the inspection team carried out a detailed investigation into the records of both NGOs from 6-8 April 2015, during which hundreds of copies of original accounts and records were provided upon request to the investigation unit. The intensified investigation into Teesta Setalvad and the work of her NGOs comes in the build up to her anticipatory bail plea, which shall be heard by a 3 member bench of the Supreme Court on 21 April 2015, in relation to legal proceedings pending against her and her spouse, Mr Javed Anand, based on allegations of embezzling funds intended for the construction of a memorial to the victims of the 2002 Gujarat riots.

The question arises is Gujarat Government paranoid about the legal processes related to 2002 (still pending)? Are the constant attacks on us and our organisations CJP and SABRANG primarily to malign Setalvad’s image because she is the only activist in the history of Indian riots who has managed to put 117 rioters behind bars with astute legal advocacy? Narendra Modi’s minister Maya Kodnani was one of the many convicted along with Babu Bajrangi.

Zakia Jafri’s case proceedings will re-start soon.  Narendra Modi is one of those sought to be prosecuted in the case. We have been providing legal aid to Zakia appa and her family? Are we then being hounded because despite the intimidation and attacks we have continued in our work?

That in the forst week of April Survivor witnesses challenged in the Supreme Court attempts made in the Gujarat HC to single out Kodnani’s appeal and rush it through without other appeaks being heard? That the SIT, for once (after the survivors had filed the SLP) decided to also push for recusal of the case away from the Judge hearing it? And that the SC stayed the hearing of the appeal for two months?

The war is on. Between the foundations that this nation was built on and efforts to turn it into a majoritarian autocratic state. Vindictively stifling dissent and criticism is a way of crippling resistance. Will they succeeed? Only if we allow them to.

Ends

Then and Now (Published in Rashtriya Sahara, Urdu, April 2015)

Then and Now

(Published in Rashtriya Sahara, Urdu, April 2015)

Teesta Setalvad

In February 1995, in the cover story of Communalism Combat (www.sabrang.com) Vibhuti Narain Rai gave an interview that turned the searchlight within, on the Indian Police Force. I had met him at the National PoliceAcademy where I had been asked to become part of a training given my work in the post Babri-Masjid demolition Bombay violence.

Even then, he was an IPS officer, with 20 years service behind him,  whom the saffron brigade loved to hate. Based on his personal experience as a junior officer during the 1980 communal riots in Allahabad, he wrote a novel. Shahar mein curfew. In 1989, on the eve of his promotion as the superintendent of police of the same city in U.P. Ashok Singhal, the general secretary of the Vishwa Hindu Parishad, felt enraged enough by its contents to engage in a public burning of the book.     In 1987, he was the SP of Ghaziabad, when in the course of the Meerut riots, the state’s Provincial Armed Constabulary (PAC) arbitrarily rounded up a group of Muslims from Hashimpura, packed them in a truck, killed them in cold blood and dumped them like garbage. He and his men, cried themselves hoarse for three hours in desperate search of a survivor among the victims so that the gruesome tale of ‘criminals in uniform’ could be told to the world.  Having succeeded at last in finding Babudeen, the lone survivor, he ensured top security to the victim until an F.I.R was lodged against the murderous PAC men. After the Hahsimpura verdict we interviewed him agin and this interview can be heard on http://www.sabrang.com/Infocus/VibhutiInt25032015.htm

 He had then (1995) taken a year’s study leave for research on the subject of communalism and the police force in India.    Among other things, Rai’s interviews with hundreds of riot victims from across the country produced the startling finding that in all riot situations, Hindus consider policemen as their friends while, almost without exception, India’s minorities—Muslims and Sikhs—experience them as their enemy.    The implications of his finding are frightening because “losing faith in the police may lead to loss of faith in the state” itself. The candour and depth of feeling with which Rai spoke to Combat is rare for a police officer still in service. Excerpts :-

What is the specific subject of your dissertation?

The subject that has been assigned to me is “Perception of Police Neutrality during Communal Riots”, that is, the perception of the police among different strata of society. I concentrated on perceptions of police neutrality among all minority segments in Indian society. How they perceive the police was my specific area of research.

To collect information, I framed a questionnaire for a wide cross-section of riot victims from all over the country. The responses that I have got are startling, there is a sharp difference between the perception of the minorities and those of the majority community.

Hindus responded in one way while the response of Muslims and Sikhs was entirely different. From the hundreds of responses that I have collected is clear that during communal riots, Hindus always visualise the police as their friends while almost every Muslim and Sikh sees them as his enemy.

Now, this is a truly shocking revelation to me. Though I had anticipated that a large majority of Muslims and Sikhs might feel this way, I expected at least some sections from both the communities to view the police otherwise. I was shocked to find a near universal minority response that the police are enemies.

A second question I asked my respondents was whether they would approach the police during a communal riot when their life was threatened or their property was in danger. The responses to this question, too, were yet another revelation to me. The vast majority categorically stated there was no question of their, approaching the police. A few said they would not like to reply to this question. Among those who responded, barely 5-10 per cent said that they would like to approach the police. These responses, again, are truly shocking.

As a senior police officer what do you feel are the implications of such responses?

The implications are nothing short of disastrous because the police represents the state. Losing faith in the police may amount to losing faith in the state. But I must make a qualification: one of the heartening findings was that while loss of faith in the police was near total among the minorities, many of the riot victims I interviewed still expressed faith in other of the state like the army, the BSF or the CRPF.

But if the communal virus that is so virulent spreads further, I wonder how long can we keep our army free from it? Especially, if the army is called in so frequently to tackle communally explosive situations and jawans are stationed for long durations, there is every likelihood of their catching the same virus. The consolation for now is: at least, the minorities still have some faith in some institutions of the state.

Now that you have completed your research and are near the end of your dissertation what are the major conclusions that you have reached? As an insider who has been extensively researching on the issue, how serious and widespread, according to you, is the problem of communalisation in the Indian police force?

Communal prejudice and bias is so deep and widespread that I feel some drastic steps need to be taken and fast. Especially by the senior leadership within the Indian police. Prejudice governs our actions much more than the fair-play we are sworn to. It is heart-warming to come across instances of decent, non-partisan police officers. But, and I say this with deep regret, such examples are more the exception than the rule. Many times we take shelter behind politicians for our own failures. We say that politicians did not permit it. But no politician can ever ask us to behave in a communal fashion.

It is useless to decry or condemn or constantly put blame only on politicians. We in the police force have to accept that our house is not in order.

It has become a routine, a fashion almost, after each riot when the allegations begin coming in, senior officers defend the force and counter-allege that the accusations are biased, that they have been levelled by ill-informed persons, etc; that sections of society, the media, social activists, minorities and communists who commonly bring these facts to the notice of the public are biased and that, in a nutshell, their accusations are mala fide.Personally, I feel that unless we begin by accepting that there is something seriously wrong, we may not be able to rectify it and put our house in order.Our leadership must improve, IPS officers must stop blaming the force. This applies to Bombay or anywhere else in the country.

Note: Not only were no steps taken but there is institutional amnesia in our country, the refusal to accept the extent of the bias. Hence Hashimpura to Bhagalpur to Delhi to Bombay to Gujarat the deep seated bias had flourished with cynical impunity.

Post Script: The news this morning that Masum Akhtar, a newspaper columnist and the headmaster if of a madrasah in Kolkatta’s Metiabruz area was badly beaten up and escaped narrowly with his life, pained and angered me. Why was he attacked? Because he taught about traditions of transparency and accountability within Islam, wrote freely about issues that may or may not have angered a few in Dainik Statesman and Ananda Bazar Patrika. He believes he was attacked by fanatics belonging to his own faith. The news pained me because the attackers (like those among the Hindutva fold) do not necessarily represent the majority of thinking, feeling, breathing Muslims but by their acts of violence  they generate a climate of fear that silences the majority. Angered,  because the great traditions of Islam and Islamic learning lived/lives comfortably with dissent, criticism, introspection. But a brand that is being sold sullies and stereotypes the Islamic faith.

Ends

The end of impunity, 2010

http://www.indianexpress.com/news/the-end-of-impunity/585869/0

02 March 2010

The end of impunity

Teesta Setalvad

The struggle of man (or woman) against power is the struggle of memory against forgetting. — Milan Kundera

It was not simply the number of lives lost, though the number — perhaps 2,500 — is not insignificant. It was the cold-blooded manner in which they were taken. It was not simply that 19 of Gujarat’s 25 districts burned while Neros watched, fiddled and smirked but the sinister similarity in the way they were set alight. Militias were armed with deadly training, weapons, technology and equipment; with a lethal brew of deadly intent, inspired by constructed tales of hate, using the February 28, 2002 edition of a leading Gujarati daily that urged revenge; all combined with a deadly white chemical powder that seared to burn and destroy already killed bodies. And, of course, truckloads of gas cylinders, in short supply for cooking, were used instead to blast mosques and homes. Mobile phones and motorcycles made communications easy and movement swift.

Part of the plan was to humiliate, destroy and then kill. Another was to economically cripple. But at heart the desire was to construct a reality whereby a whole ten per cent of the population lives (and a few even prosper) as carefully whipped into shape, second-class citizens. Most incidents that racked the state, except the famed Best Bakery incident, took place in the glare of the day, not the stealth of the night. Critical to the plan to mutilate and humiliate was to subject women and girls to the worst kind of sexual violence. Tehelka’s “Operation Kalank” records victorious testimonies of rapists and murderers who claim to have received personal approbations from the man at the helm. Over 1,200 highway hotels were destroyed, more than 23,000 homes gutted, 350 large businesses seriously damaged (and are still unable to recover) and 12,000 street businesses demolished.

Genocide is about economic crippling as much as death and humiliation. The Concerned Citizens Tribunal — Crimes Against Humanity 2002 called the happenings in Gujarat a genocide, because of the systematic singling out of a group through widely distributed hate writing and demonisation, the economic destruction, the sexual violence and also because over 270 masjids and dargahs were razed to the ground. The bandh calls on February 28 and March 1 by rabid outfits and supported by the party in power enabled mobs free access to the streets while successfully warding off the ordinary citizen.

Eight years on, it is this level and extent of complicity that is under high-level scrutiny. The involvement of high functionaries of the state in Gujarat did not begin, and has not stopped, with the violence. It has extended to destruction of evidence that continues until today, the faulty registration of criminal complaints, the deliberate exclusion of powerful accused and, worst of all, the utter and complete subversion of the criminal justice system by appointment of public prosecutors who were not wedded to fair play, justice and the Constitution — but were and are lapdogs of the ruling party and its raid affiliates. The proceedings in the Best Bakery case in the Supreme Court and the judgment of April 12, 2004 strips our legal system, especially lawyers, of the dignity of their office.

The hasty granting of bail to those involved in the post-Godhra carnage remains a scandal. While over seven dozen of those accused of the Godhra train arson have been in jail, without bail for eight years — and today face trial within the precincts of the Sabarmati jail — powerful men, patronised by the state’s political hierarchy who are accused of multiple rapes and murders roam free in “vibrant Gujarat” even as the trials have resumed. The few that are in jail — ten of the 64 accused in the Gulberg society carnage, eight of the 64 accused in Naroda Patia massacre, two of the 89 in the Naroda Gaam killing, eight of the 73 in the Sardroura massacres (all the 84 accused of the massacre at Deepda Darwaza roam free on bail) are those with no political godfathers. A vast majority have lived in freedom even after committing unspeakable crimes. All this and more is being investigated under the orders of our apex court on a petition filed by Zakia Ahsan Jafri and the Citizens for Justice and Peace. For the first time in our history criminal conspiracy and mass murder are the charges, the chief minister and 61 others the accused. Will the wealth of evidence be matched by the rigour of investigation? Will the will to prosecute surmount political considerations? Will the Indian system throw a spotlight on what surely must be its darkest hour? As we stood, remembered and prayed in painful memorial, with lit candles at the Gulbarg Society this Sunday we did so in both faith and hope.

The writer is the secretary of Citizens for Justice and Peace