Arun Shourie
The provisions of TADA were much more stringent than those of the new Ordinance. The constitutionality of those provisions, of TADA itself had been challenged in the courts. The Supreme Court specifically upheld TADA, and declared its provisions -- the much more stringent provisions -- to be in accord with the Constitution.
While I happen to be in Government, my assessment for Parliament is the opposite one to that of the critics: the Ordinance bends too far back to accommodate human rightists, and that includes some impractical judgments too -- like that of the Supreme Court in D. K. Basu Vs State of West Bengal.
Under TADA, as we just saw, the accused was allowed only one appeal that to the Supreme Court. Even with that restriction, the judgment in the Rajiv Gandhi assassination case took all of eight years. By allowing another intermediate appeal -- to the High Court -- we are ensuring that the period would be not eight but a multiple of eight years!
Similarly, recall the provision that allows a lawyer to meet the accused while he is being interrogated. Imagine that the police have nabbed a terrorist sent across by the Lashkar-e-Tayyaba. He is certain to have been saturated with indoctrination to the point that he is nothing but a killing machine. Do you think he is going to give you information over a cup of tea? And if lawyers are going to be meeting him from time to time during interrogation, is there the slightest chance that you will be able to extract information -- information about their plans, about their networks, that is information which is literally a matter of life and death for our people and our country?
But-such is the condition of public life and public discourse in India today, and so far removed from reality are some of our judgments that a provision like that one about lawyers has had to be incorporated in the Ordinance.
Based on their experience in dealing with organized gangs of criminals, the states of Maharashtra, Andhra, Karnataka have formulated laws. Why should the law for combating terrorists be more circumspect than the laws required for neutralizing gangsters? But that is what the Ordinance is. To give just one example, the state laws provide that the Review Committees -- to consider orders passed by the Home Department shall be headed by the Chief Secretary, but the Ordinance requires that the corresponding Committee for terrorists must be headed by a High Court judge. What entitles terrorists or their agents to greater solicitude?
Similarly, consider the deletion of "disruptive activities" from the Ordinance. TADA provided that any action that questions or disrupts the sovereignty and territorial integrity of India or is intended to do so, or which is intended to bring about or supports a claim for the secession of any part of India from the Union shall be a crime under TADA. Imagine how far we have fallen when even such a provision has had to be jettisoned -- even from a law the specific purpose of which is to thwart terrorists out to break our country.
The charge that such provisions were used against Muslims, that TADA was an anti-minorities law was a travesty. The facts, as I had pointed out at the time, were completely to the contrary. The notorious case of abuse was by the Congress-I led Government of Gujarat: it threw almost 19,000 persons in jail under TADA, and these were farmers opposing its policies. I don�t recall any protests against that abuse by those who are now imagining possible abuses in the future. Just as important, ninety eight per cent of those arrested in Gujarat got bail under that very Act from the courts. In Kashmir it is true that the overwhelming proportion of persons held under TADA were Muslims: but they were arrested not because they were Muslims, they were arrested because they were out to break the country. These two instances apart, the proportion of Muslims among the total arrested under TADA was only 4.5 per cent.
But such is the shadow that the falsehoods circulated at the time cast, that even six years later, and with thousands more having been killed by terrorists, the provision about activities aimed at disrupting the sovereignty and territorial integrity of the country has had to be excluded from the Ordinance.
"But what was the need for an Ordinance? Should the Government not have first evolved a consensus on the matter?"
Is there never to be a finality? Not even in a matter relating to the security of the country? Guess since when the efforts to bring about a consensus on this law have been going on? Since May 1995. TADA was allowed to lapse because opportunist politicians looking for issues that would curry favour with the Muslim vote bank saw an opportunity. That itself was a crime -- an instrument vital to the security and defence of the country was sacrificed to the crassest political calculation. Then began the long march.
A Criminal Law Amendment Bill was drafted and circulated in 1995. It was abandoned. Consultations continued with all and sundry. The matter was eventually referred to the Law Commission in 1998. That Commission deliberated on the question for two years -- giving its report and draft Bill in April 2000.
That draft was considered at meetings of Directors General and Inspectors General of Police, of Chief Secretaries and Home Secretaries of state governments. It was considered at the Chief Ministers� Conference on Internal Security last year. It was sent to the Human Rights Commission for its observations. It was sent to the state governments for their comments.
Should the process go on indefinitely? And what are the prospects of "evolving a consensus" when it has become an article of faith of everyone who is out of office that his job is to block everything a Government does? That his job is to block even what he was doing when he was in office, in fact even what he is today doing in the states in which he is in office?
The comments that the states sent to the draft Bill themselves tell the tale. The Congress(I) is opposing the Ordinance. In fact, when the Law Commission�s draft was circulated, the (Congress-I) Government of Delhi supported the enactment of the law in toto. The (Congress-I) Government of Karnataka supported the enactment of the law in toto.
The (Congress-I) Government of Nagaland supported the law in toto. The (Congress-I) Government of Madhya Pradesh, the (Congress-I) Government of Rajasthan, and the (Congress-I) Government of Maharashtra supported the enactment of the law, they sent suggestions about specific clauses.
The CPI(M) Governments of Kerala, West Bengal and Tripura sent their usual "principled" opposition. That Government in Kerala has gone. The one in West Bengal is trying to cover up its embarrassment for having finalised its own version of the Maharashtra Act. The Government of Tripura, after some initial show of reluctance because of "the party�s stand", has begun using corresponding provisions from other enactments relating to national security.
Not just those governments in the states, representatives of those parties at "the national level" have in general endorsed the need for a law to deal specifically with terrorists and their organizations. The leading figure in Parliament from the CPI(M) went so far as to counsel Government that it should study what Israel is doing in the matter. One of the most highly regarded leaders of the Congress(I) in Parliament stated that the Indian Penal Code is inadequate for combating terrorism, that a special law is needed, that in fact the draft Bill itself was not adequate. Nailing the falsehood that is being circulated, he said that the Bill does not shift the onus of proof on to the accused, that the provisions only seek to raise a presumption in certain circumstances. He said that there were many loopholes in the Bill, and for that reason it should go to the Select Committee or Standing Committee of the House...
This process has been going on for six years. In the meanwhile terrorists have continued to maim, kill, blow up, bum...
Fifty-five thousand people killed... that is five times the number we have lost in the 1962, 1965, 1971 and Kargil wars. And we are still stalled -- awaiting a consensus before getting even a law in place to deal with terrorism.
My plea, therefore, is the one opposite to that of the critics: the Ordinance should be approved at the first opportunity, and soon thereafter toughened -- the diluted provisions should be replaced by tougher ones -- closer to those of TADA.
Part I - POTO: Interception, Confession, Confessions, Torture
BJP Today
December 1-15, 2001
Showing posts with label law and order. Show all posts
Showing posts with label law and order. Show all posts
Wednesday, May 28, 2008
POTO: Interception, Confession, Confessions, Torture (Part I of II)
Arun Shourie
"But look at Chapter V. It allows the police, the intelligence agencies to listen in to and intercept communications between any of us whatever means we use: electronic, wire, oral, paging devices, tracking devices. This wasn�t there in the Law Commission draft. It is a clear license to police, IB, CBI, anyone the Government fancies to invade our privacy."
First, about the Law Commission. While arguing that provisions on a particular matter were not in its draft, critics obscure the fact that the entire question of having or not having a special law to deal with terrorist crimes and organizations -- had been referred to the Law Commission, and that the Law Commission did not just endorse the proposal for having such a law, it provided a detailed draft also entitled, "Prevention of Terrorism Bill, 2000."
Second, recommendations of the Law Commission are just one of the inputs that go into the final outcome: it is ultimately the Government�s job, it is not just its power but also its responsibility to forge the instrument that is required. In this instance, the Government had before it, in addition to the Law Commission�s report, the laws in other countries - the UK the USA, Canada, among others; it had before it the law as it is being administered in Maharashtra; the laws that have been passed by the Assemblies of Karnataka and Andhra.
The Law Commission draft did not have anything on intercepts. Does this mean that -- even though ever so often it is only through intercepts that the contacts between a controller sitting in Pakistan and his agents and instruments here can be proven -- no provision about intercepts should be included? Should we not take account of the experience we have gained in Maharashtra, for instance? That it is precisely through intercepts that the Government there has been able to nail the exchanges between dons in Dubai and their agents in Mumbai? The provision in the Law Commission draft relating to financial dealings of terrorists and their organizations was found on examination to be inadequate. Should the Government have stuck to the draft even when it had reason to believe that a more effective provision was required?
"But what about confessions being declared to be evidence admissible in courts? People can be made to confess to all sorts of deeds by methods that our police uses."
True, under ordinary law confessions made to a police officer are not admissible as evidence. And to gauge the result you don�t have to look far: just see what is happening in the Jessica Lal murder and the Gulshan Rai murder cases -- several persons saw the victims being murdered; one eye-witness after the other is going back on what he told the police. When conviction in even an ordinary murder can be thwarted by such a simple device, what will a terrorist organization -- one that can bring to bear pressures infinitely more frightening than an ordinary criminal -- not be able to ensure?
Arun Jaitley has given a telling illustration: not one of the persons who were eventually convicted for Rajiv Gandhi�s assassination could have been convicted had confessions not been admissible. In the case of every single accused, the Supreme Court�s pronouncement begins by recounting that the person has recorded a confessional statement. Next the Court sets out the averments in that confession which are incriminating. It then sets out some ancillary material which leads it to believe that the confession is true. The truth of the confession established, the Court pronounces the person to be guilty.
Thus, Accused-1, Nalini: "The principal item of evidence available in this case is her own confessional statement recorded on 9-8-1991..." Ancillary factors are then listed, and the Court concludes that this corroborative evidence establishes the truth of the confession. Accused-2, Santhan alias Raviraj: "His confessional statement was recorded on 17-9-1991... The incriminating admissions contained in (it) are the following...." Corroborative evidence establishes the truth of the confession. Accused-3, Murugan alias Das: His confession was recorded on 9-8-1991. Confessional statement of Nalini and other corroborative evidence confirms Murugan�s confession to be true. "The active and positive involvement of A-3 (Murugan) in the conspiracy for assassinating Rajiv Gandhi looms large in the said confession. We have, therefore, no doubt that A-3 was also one of the conspirators." A-4 to A-8, confessions not recorded, and/or acquitted. Accused-9, Robert Payas: confession recorded. Ancillary factors "have rendered the confessional statement made by A-9 in Exhibit P-85 as wholly true. We, therefore, concur with the finding of the Special Judge that A-9 (Robert Payas) was very much involved in the conspiracy to assassinate Rajiv Gandhi." A-10, A-12, A-18... In each instance the same sequence is repeated: confessional statement, ancillary factors confirm this as true, therefore guilty.
Nor is the point confined to what the Supreme Court has held in regard to these particular individuals. The judgment pronounces on the law in this regard. The Court specifically holds that confessions are admissible as evidence; that even if the police officer has forgotten to obtain the confessions made under TADA are valid for charges under another statute, in this case the IPC.
Given the quarters who are denouncing a provision like this so volubly, it is also good to note what the corresponding provisions are under the law in operation in Maharashtra, as well as the bills passed in Andhra and in Karnataka -- each of them provides that the confessional statement shall be admissible as evidence against the person who has made the confession, that it shall be admissible against a co-accused, that it shall be admissible against the abettor as well as against the co-conspirator.
It just so happens, and this is the point to which I shall revert, that the Ordinance is far more restrictive than these laws, indeed than what has been specifically upheld by the Supreme Court even in regard to confessions. To take on specific: under the Ordinance, confession made by a person shall not be admissible in a proceeding against a co-accused.
"But the fellow will be tortured and made to confess to whatever the police want."
Under TADA the accused could the kept in police custody for 60 days, and in judicial custody up to a year. Under this Ordinance, the limits have been cut down to 30 days and 180 days respectively. The family of the person is to be informed immediately upon his arrest. Before he is interrogated the person is to be informed in writing that he is not bound to make a confession.
The confession can be recorded only by an officer of or above the rank of Superintendent of Police. It must be recorded before a court within 48 hours. The court is to inquire of the accused whether he has been tortured or maltreated. If he alleges that he has been maltreated, the court is to record the allegation, and direct an immediate medical examination. Most important, the lawyer of the accused is to be allowed to meet him during interrogation.
Part II - POTO: Approve Swiftly, and then Toughen it
BJP Today
December 1-15, 2001
"But look at Chapter V. It allows the police, the intelligence agencies to listen in to and intercept communications between any of us whatever means we use: electronic, wire, oral, paging devices, tracking devices. This wasn�t there in the Law Commission draft. It is a clear license to police, IB, CBI, anyone the Government fancies to invade our privacy."
First, about the Law Commission. While arguing that provisions on a particular matter were not in its draft, critics obscure the fact that the entire question of having or not having a special law to deal with terrorist crimes and organizations -- had been referred to the Law Commission, and that the Law Commission did not just endorse the proposal for having such a law, it provided a detailed draft also entitled, "Prevention of Terrorism Bill, 2000."
Second, recommendations of the Law Commission are just one of the inputs that go into the final outcome: it is ultimately the Government�s job, it is not just its power but also its responsibility to forge the instrument that is required. In this instance, the Government had before it, in addition to the Law Commission�s report, the laws in other countries - the UK the USA, Canada, among others; it had before it the law as it is being administered in Maharashtra; the laws that have been passed by the Assemblies of Karnataka and Andhra.
The Law Commission draft did not have anything on intercepts. Does this mean that -- even though ever so often it is only through intercepts that the contacts between a controller sitting in Pakistan and his agents and instruments here can be proven -- no provision about intercepts should be included? Should we not take account of the experience we have gained in Maharashtra, for instance? That it is precisely through intercepts that the Government there has been able to nail the exchanges between dons in Dubai and their agents in Mumbai? The provision in the Law Commission draft relating to financial dealings of terrorists and their organizations was found on examination to be inadequate. Should the Government have stuck to the draft even when it had reason to believe that a more effective provision was required?
"But what about confessions being declared to be evidence admissible in courts? People can be made to confess to all sorts of deeds by methods that our police uses."
True, under ordinary law confessions made to a police officer are not admissible as evidence. And to gauge the result you don�t have to look far: just see what is happening in the Jessica Lal murder and the Gulshan Rai murder cases -- several persons saw the victims being murdered; one eye-witness after the other is going back on what he told the police. When conviction in even an ordinary murder can be thwarted by such a simple device, what will a terrorist organization -- one that can bring to bear pressures infinitely more frightening than an ordinary criminal -- not be able to ensure?
Arun Jaitley has given a telling illustration: not one of the persons who were eventually convicted for Rajiv Gandhi�s assassination could have been convicted had confessions not been admissible. In the case of every single accused, the Supreme Court�s pronouncement begins by recounting that the person has recorded a confessional statement. Next the Court sets out the averments in that confession which are incriminating. It then sets out some ancillary material which leads it to believe that the confession is true. The truth of the confession established, the Court pronounces the person to be guilty.
Thus, Accused-1, Nalini: "The principal item of evidence available in this case is her own confessional statement recorded on 9-8-1991..." Ancillary factors are then listed, and the Court concludes that this corroborative evidence establishes the truth of the confession. Accused-2, Santhan alias Raviraj: "His confessional statement was recorded on 17-9-1991... The incriminating admissions contained in (it) are the following...." Corroborative evidence establishes the truth of the confession. Accused-3, Murugan alias Das: His confession was recorded on 9-8-1991. Confessional statement of Nalini and other corroborative evidence confirms Murugan�s confession to be true. "The active and positive involvement of A-3 (Murugan) in the conspiracy for assassinating Rajiv Gandhi looms large in the said confession. We have, therefore, no doubt that A-3 was also one of the conspirators." A-4 to A-8, confessions not recorded, and/or acquitted. Accused-9, Robert Payas: confession recorded. Ancillary factors "have rendered the confessional statement made by A-9 in Exhibit P-85 as wholly true. We, therefore, concur with the finding of the Special Judge that A-9 (Robert Payas) was very much involved in the conspiracy to assassinate Rajiv Gandhi." A-10, A-12, A-18... In each instance the same sequence is repeated: confessional statement, ancillary factors confirm this as true, therefore guilty.
Nor is the point confined to what the Supreme Court has held in regard to these particular individuals. The judgment pronounces on the law in this regard. The Court specifically holds that confessions are admissible as evidence; that even if the police officer has forgotten to obtain the confessions made under TADA are valid for charges under another statute, in this case the IPC.
Given the quarters who are denouncing a provision like this so volubly, it is also good to note what the corresponding provisions are under the law in operation in Maharashtra, as well as the bills passed in Andhra and in Karnataka -- each of them provides that the confessional statement shall be admissible as evidence against the person who has made the confession, that it shall be admissible against a co-accused, that it shall be admissible against the abettor as well as against the co-conspirator.
It just so happens, and this is the point to which I shall revert, that the Ordinance is far more restrictive than these laws, indeed than what has been specifically upheld by the Supreme Court even in regard to confessions. To take on specific: under the Ordinance, confession made by a person shall not be admissible in a proceeding against a co-accused.
"But the fellow will be tortured and made to confess to whatever the police want."
Under TADA the accused could the kept in police custody for 60 days, and in judicial custody up to a year. Under this Ordinance, the limits have been cut down to 30 days and 180 days respectively. The family of the person is to be informed immediately upon his arrest. Before he is interrogated the person is to be informed in writing that he is not bound to make a confession.
The confession can be recorded only by an officer of or above the rank of Superintendent of Police. It must be recorded before a court within 48 hours. The court is to inquire of the accused whether he has been tortured or maltreated. If he alleges that he has been maltreated, the court is to record the allegation, and direct an immediate medical examination. Most important, the lawyer of the accused is to be allowed to meet him during interrogation.
Part II - POTO: Approve Swiftly, and then Toughen it
BJP Today
December 1-15, 2001
Sunday, May 25, 2008
A State Unimagined in Law: A Wrong Without a Remedy
Arun Shourie
Throughout last week one thing seemed completely uncertain: whether the Government at the Centre would survive. Throughout last week one thing seemed just as certain: that in Bihar, Laloo Yadav's Government would return. I think it inadvisable to peg the dismissal of a Government on a single massacre: when things have reached the condition they have in Bihar, in many other parts of the country, a few score can be killed at any time, anywhere. The test ought to be the general condition.
Recall the situation. The general condition in the State has fallen through the floor. A corrupt and intimidatory gang controls the majority of persons in the State legislature. The Central Government requests the President to take the State under President's Rule. He declines. Things continue to hurtle down. Five months pass. The Central Government again requests the President to take the State under President's Rule. This time even he is convinced that there really is no alternative. The State Government is removed. The Constitution requires that the removal be ratified by Parliament. In one House, the motion turns on how parties see their immediate political interest. In the other House, the Government does not have the numbers in any case to have the removal ratified.
That in brief has been the sequence in Bihar. And everyone is reconciled to the State being handed back to that very gang looters, extortionists and rowdies.
We are in the era of coalitions, everyone keeps saying, no party is going to get the sort of majorities in the coming years which will enable it to get such steps ratified in each of the two Houses. Could it then have been the intention of the Constitution that, even though such a large proportion of the area of the country as Bihar, that even though ninety million -- the population of Bihar -- vanish into a black-hole, that even though anarchy in the State becomes a threat to the security of the country, there shall be no remedy under the Constitution?
Because of the numerous occasions on which Article 356 has been misused, the focus of all proposals for instance, of the Sarkaria Commission -- and of judgements -- for instance, those of the Supreme Court in the Nagaland and Karnataka cases -- has been on preventing misuse. The case of Bihar shows that the opposite circumstance -- that of enabling the Centre to use Article 356 when it is imperative to do so in the face of a fractured Parliament -- requires attention just a urgently.
Pursuits keep drawing attention to remarks during debates in the Constituent Assembly to the effect that "mal-administration" shall not be a ground for removing a State Government, that the remedy for that shall lie with the electorate. The word -- "mal-administration" -- is so inappropriate in a context such as present-day Bihar as to be preposterous. If all that is happening in a State is "mal-administration" one can recline back, secure in the knowledge that the consequences of what is going on shall be some minor "mal-effects", but nothing which cannot be corrected in due course. In a word, one can wait for the natural correctives to take effect -- mal-administration causes people to turn away from the Government, elections are held, the Government is replaced, administration is put back on the rails. But when the situation has reached the condition which it has in Bihar, the consequences of waiting are going to be catastrophic -- not just for the State and its hapless people, but for the country. The correction is going to be even longer in coming because of what would have become -- because of what has become -- of elections in areas deteriorate the way Bihar has : at election time, caste will over-ride quality of governance, the rulers will manage "votes"...
The damage shall be irretrievable. The framers of the Constitution had just not envisaged that such a large chunk of the country will be allowed to deteriorate to this extent. The condition stares us in the face. Not to see it -- as the Congress suddenly chose to do -- or to continue to be in a position in which, though everyone sees it, no one can act on it because "mal- administration is not a ground" is murder -- plain and simple -- of the constitutional order.
This has been the classic, textbook affliction of liberals, and liberal societies: to keep debating legalisms, to let constitutionalism paralyze the State even as the rogues use the tools of democracy to destroy democracy, the articles of constitution to destroy the constitution. The massacres are terrible of course. But even they are just a symptom: they show that large parts of the province have literally gone out of the reach of the State structure, that in large parts it is the writ of the local gang -- some "Maoist" gang here, some landlords' Sena there -- which runs, not that of the State of India. Could any enemy prepare the ground better for inducting terrorists etc. into the area?
Every single statistic about Bihar speaks to the same effect. By nature's endowments, it is the richest state in the country: yet the proportion of people below the poverty line in Bihar is a quarter higher than in the rest of the country. It has the lowest literacy rate in the country. In each Plan, a target is set for every State for the extent to which it has to mobilise its own resources for development programmes: during the Eighth Plan Bihar was able to raise only five per cent of the targeted resources. Rs 13,000 crores had been approved as the outlay for the State; it was able to spend -- just spend not "spend productively" -- just Rs. 5,405 crores. When the fodder loot was in the news, we learnt how for years on end accounts of the relevant departments had not been submitted in spite of reminders and the like from statutory authorities like the Auditor General. In those cases, non-finalization and non-submission were at least functional: they were devices for facilitating the loot. In fact, dispensing with such elitist artifacts as audited accounts has become the norm!
To enforce some discipline, it was decided some years ago that central assistance would be cut by 1 per cent if a State did not furnish audited figures of actual expenditure within four years of the close of a particular financial year. Not much of a requirement, not much of a penalty, you will say. But the Bihar Government has not been able to live up to even this little bit: between 1990 / 91 and 1997 / 98 Bihar lost central assistance worth Rs 360 crores because it could not spend amounts which had been provided for plan projects and schemes, and it lost Rs 30 crores because it could not furnish audited figures of what it said had in fact been spent!
That itself is a surprise: as the fodder-scam shows, it is by spending that Bihar leaders have been earning! Things have broken down to such an extent that they cannot ensure even that the amounts they receive from the Centre are spent! The standard charges of the State's politicians is that the Centre is treating the State in a step-motherly way, they are forever clamouring for more schemes. The reality?
Department of Rural Development: scheme, followed by actual expenditure till 1st January, 1999 as a per cent of amount allocated for the current year:
RVS: 18%;
ARVSP: 0;
VNP: 50;
RSP: 0.07;
CRSP: 0;
NSAP: 39;
NOAP:39;
NFBS: 36;
NMBS: 43 ....
All schemes: 31 per cent.
ARWSP, CRSP and NSAP are one hundred per cent centrally financed schemes -- the State Government does not have to put in any thing from its side: in these too the rates utilization are zero, zero and 39! Given the appalling State of Public Health and the recrudescence of diseases such as malaria, an intensive programme was drawn up for rural sanitation. No work, just no work has been done under it for the last three years.
Bihar has 67,000 villages. On paper 46,000 of these have been electrified. To say nothing of the number of hours for which electricity is available in these electrified villages, a Central team which visited the State in February found that, even on the telling of officials of State Electricity Board, 12,000 of those "electrified villages" have reverted to absolute darkness. Cause? The conductors etc. have been stolen!
Everyone keeps saying that the way land reforms have been sabotaged in Bihar has been one of the main causes of unrest and tensions in the State. Generations of politicians of the State have been fooling the poor saying they will deliver "land to the tiller". Facts? About twenty one lakh acres were donated under the Bhoodan movement. Vinoba is dead. The movement is long forgotten. It isn't as if the State had to part with any land of its own. It isn't if it had acquire land from the big landlords. The land had already been gifted. Nor is it that the Government had to do something that would be unpopular. And yet, all these years later, only a third of this land has been distributed!
Everyone has been saying that one of the impediments has been the woeful State of land records in the State. For this purpose the Centre formulated a scheme for the computerization of land records. It pledged to meet the entire expense of the task. About Rs 5 crores have been given to the State for this purpose; it has been able to utilise only Rs 22 lakhs! The target is that by December next year there shall be one hundred per cent coverage of "Jot Bahi/Khatta": actual coverage till now? Ten per cent. But Laloo is the mascot of social revolution, he is messiah of the poor!
The education system has broken down. Governmental hospitals are cess-pools of disease and dishonesty. Teachers have to go for months without their salaries, when at last they get the salary it is a fraction of what is due to them. The Secretariat remained paralysed for long a while ago...
It is well known of course that the State has sunk into a morass of crime. The even more ominous fact is that the nature of crime has changed. Indeed, the word "crime" is as much a misnomer as "mal-administration". Kidnapping for ransom, murders on failure to pay ransom -- these have become an industry, indeed, they are the only growth industry in Bihar. There is a second feature.
Reports available with the Centre list leader after leader, minister after minister as being the one behind this gang or that kidnappers and killers, of their being implicated in this instance of kidnapping and that, of murder, of gun-running, of smuggling.
"... Minister of State for Revenue and Land Reforms,... Minister of State for Relief and Rehabilitation,... Minister of States for Food, Civil Supply and Commerce,... Minister of State for Welfare are involved in various criminal cases," a Central report reads. Furnishing details of the cases, it remarks, "The charges against Shri..., Shri..., and Shri..., include, inter alia, kidnapping." It says that there are in addition reports that Shri..., another minister, "is patronising the gang of Bulaki Sah which is involved in kidnapping for ransom in Muzzafarpur area." "Another minister, Shri... is reportedly patronising the gang of Jamadar Singh which is involved in kidnapping for ransom... It lists two other ministers and notes that they too are suspected of being in the same industry.
"There are reports," it is proceeds, "that Shri..., MP (RJD) had connived in the kidnapping (July 15, 1997) of Shri N. K. Jaipuria, a leading businessman of Bangalore. Interrogation of one of the accused in the case revealed that the gang was in close contact with Shri... [The MP], Shri... (MLA, RJD) and Shri... of UP. The accused also revealed that he had collected three pistols from Shri... [the MP] to accomplish the task."
Next para: "S... M.... S..., an RJD MP from..., is a Mafia don having an estimated strength of 100 armed followers. He virtually runs a parallel administration in the district. His gang, it is reported, attacked those police officers who were inconvenient to him. It is learnt that he was responsible for the attack on SP, Siwan. Killing of Chandrashekhar, CPI-ML leader and ex-JNU student at Siwan, is also attributed to him. Equipped with automatic and semi-automatic weapons like AK series rifles (15), carbines (20), pistols/revolvers (160), Mausers (5), and hand grenades (80), the gang of.... operates in Siwan and its adjoining districts. The gang is responsible for political killings, collecting ransom from kidnapping rich traders/industrialists, extorting money from general traders/contractors, smuggling of arms, synthetic drugs, etc. The gang is reported to have relations with Daud Ibrahim gang presently based at Dubai..."
Next: "The gang headed by Parmanand Prasad, younger brother of Shri..., is active in East Champaran, Muzzafarpur and Siwan. The gang is reported to have in possession AK-47 / 56 rifles (10 approximately), carbines, regular and country-made revolvers / pistols / rifles / guns. The major activity of the gang is presently trans-border smuggling in association with Nepalese Mafia dons. The gang is also involved in illegal arms traffic. Besides, the gang is involved in kidnapping for ransom, political murder, extortion etc. The gang has a good hold in the State Government and the police machinery of the area..."
Next: "Apart from keeping their own criminal gangs, RJD leaders are also actively patronising criminal groups. Such patronization is learnt to have been extended by Shri..... through his close relatives, mainly his brother-in-law,..." The report goes on to detail the criminal activities --- smuggling across the Nepal border, it mentions the "close links" which the brother-in- law maintains with "the most dreaded criminal of West Champaran," Bhagar Yadav, it mentions that "huge money" is reportedly received from this dreaded criminal, involvement of the gangs is kidnapping for ransom. The report says that the officers have learnt that the leader, whom it names, "personally intervened and transferred the then SP of Bettiah district when the latter engaged the Bhagar Yadav gang in encounters (1997)..."
The activities of the rulers are listed -- elimination of criminals of other caste groups..., apart from links with criminal gangs, the links that are assiduously maintained with the Maoist Coordination Committee...
Each time a carnage attracts notice outside the State, the State Government has two standard responses. It sets up a commission of inquiry, it asks for more resources from the Centre -- more paramilitary forces of the Centre, more funds to modernize its own police. And what happens to these commissions and resources?
December, 1997: Massacres by the Ranvir Sena become an issue, allegations fly -- each party says the Sena is an affiliate of the other. Justice Amir Das Commission is set up to excavate the facts, and nail the affiliations.
Thirteen months have gone by. Last month the Chief Secretary told the Central team that accommodation for the Commission was in the process of being arranged!
June, 1998: Yet another leader is killed. A judicial commission of inquiry is set up. Seven months have gone by, the judge is yet to be named...
Resources: In December, 1997 Bihar had one company of central para-military forces, today it has twenty four... Funds have been given for modernization of the State police force: the Central team inquired about Palamu district which is severely affected by "Maoist" violence, only to find that not one bit of the funds made a vailable has reached; in other districts that are badly affected --- Dhanbad, Bokaro, Gumla and Ranchi -- the story turns out to be the same...
The terror in which the people live... The terror to which even the enforces of law have been reduced... the increasing incidents of violence against their own officers and defiance of their orders by policemen: 18 November, 1997: 50 - 60 policemen armed with lathis enter the court of the Additional District Judge, Bhagalpur, assault him for not granting armed bail to a sub- inspector...; 2 February, 1998: An assistant sub-inspector is killed by CPIML cadres, the D M comes to the funeral, the policemen manhandle and abuse him ..: 1 March, 1998: protesting the killing of a policeman by the MCC, policemen ransack the house of the SP, the SP and his family barely manage to escape from the rear gate, the D M rushes to pacify them, his car is set upon...; 14 April, 1998: Criminals kill a policeman, his colleagues block traffic near the Police Lines in Biharsharif, they refuse to lift the blockade even after the SP and D M appeal to them...
One of the senior-most officials visited Bihar in December, 1997. His note reveals what affairs have sunk to: "... Several Block Development Officers and Circle Officers do not stay at their headquarters and are seen mostly at district headquarters and/or loitering at Patna as they go only for a few days in a month to disburse the salaries and to honour the bills of the contractors. The routine functions of the revenue administration like inspection of sarkari land, preparation of land records are not taking place. The police station, the Circle Offices and blocks are not inspected by their Senior Officers. In some districts, even SPs and D Ms do not stir out of their houses after sun-set. Instances of police vehicles and police pickets being attacked and arms snatched are not infrequent. Development activities have been seriously undermined by all-pervasive corruption and extortions in the form of 'cuts', to the extent of 30% of the funds earmarked for various schemes, to the left-wing extremist groups. There are areas where the only symbol of administration is the isolated police picket set up to deal with the left wing extremist lawlessness and the Police Station...."
Team after team documents the collapse. Far from acting on the information, the Central Government cannot even make the information public. How did the secret report become public?, the criminals will orchestrate the shout. How has this journalist got what has not been made available even to Parliament?... Esoteric analyses will commence about the Official Secrets Act, about the privileges of Parliament... And the culprits will be back in the saddle...
Is that what the Constitution-makers intended? Is this condition just "mal- administration"? Is there no remedy for it under the Constitution? If there isn't, what can be a stronger ground for amending Article 356?
Daily Excelsior
March 05, 1999
Throughout last week one thing seemed completely uncertain: whether the Government at the Centre would survive. Throughout last week one thing seemed just as certain: that in Bihar, Laloo Yadav's Government would return. I think it inadvisable to peg the dismissal of a Government on a single massacre: when things have reached the condition they have in Bihar, in many other parts of the country, a few score can be killed at any time, anywhere. The test ought to be the general condition.
Recall the situation. The general condition in the State has fallen through the floor. A corrupt and intimidatory gang controls the majority of persons in the State legislature. The Central Government requests the President to take the State under President's Rule. He declines. Things continue to hurtle down. Five months pass. The Central Government again requests the President to take the State under President's Rule. This time even he is convinced that there really is no alternative. The State Government is removed. The Constitution requires that the removal be ratified by Parliament. In one House, the motion turns on how parties see their immediate political interest. In the other House, the Government does not have the numbers in any case to have the removal ratified.
That in brief has been the sequence in Bihar. And everyone is reconciled to the State being handed back to that very gang looters, extortionists and rowdies.
We are in the era of coalitions, everyone keeps saying, no party is going to get the sort of majorities in the coming years which will enable it to get such steps ratified in each of the two Houses. Could it then have been the intention of the Constitution that, even though such a large proportion of the area of the country as Bihar, that even though ninety million -- the population of Bihar -- vanish into a black-hole, that even though anarchy in the State becomes a threat to the security of the country, there shall be no remedy under the Constitution?
Because of the numerous occasions on which Article 356 has been misused, the focus of all proposals for instance, of the Sarkaria Commission -- and of judgements -- for instance, those of the Supreme Court in the Nagaland and Karnataka cases -- has been on preventing misuse. The case of Bihar shows that the opposite circumstance -- that of enabling the Centre to use Article 356 when it is imperative to do so in the face of a fractured Parliament -- requires attention just a urgently.
Pursuits keep drawing attention to remarks during debates in the Constituent Assembly to the effect that "mal-administration" shall not be a ground for removing a State Government, that the remedy for that shall lie with the electorate. The word -- "mal-administration" -- is so inappropriate in a context such as present-day Bihar as to be preposterous. If all that is happening in a State is "mal-administration" one can recline back, secure in the knowledge that the consequences of what is going on shall be some minor "mal-effects", but nothing which cannot be corrected in due course. In a word, one can wait for the natural correctives to take effect -- mal-administration causes people to turn away from the Government, elections are held, the Government is replaced, administration is put back on the rails. But when the situation has reached the condition which it has in Bihar, the consequences of waiting are going to be catastrophic -- not just for the State and its hapless people, but for the country. The correction is going to be even longer in coming because of what would have become -- because of what has become -- of elections in areas deteriorate the way Bihar has : at election time, caste will over-ride quality of governance, the rulers will manage "votes"...
The damage shall be irretrievable. The framers of the Constitution had just not envisaged that such a large chunk of the country will be allowed to deteriorate to this extent. The condition stares us in the face. Not to see it -- as the Congress suddenly chose to do -- or to continue to be in a position in which, though everyone sees it, no one can act on it because "mal- administration is not a ground" is murder -- plain and simple -- of the constitutional order.
This has been the classic, textbook affliction of liberals, and liberal societies: to keep debating legalisms, to let constitutionalism paralyze the State even as the rogues use the tools of democracy to destroy democracy, the articles of constitution to destroy the constitution. The massacres are terrible of course. But even they are just a symptom: they show that large parts of the province have literally gone out of the reach of the State structure, that in large parts it is the writ of the local gang -- some "Maoist" gang here, some landlords' Sena there -- which runs, not that of the State of India. Could any enemy prepare the ground better for inducting terrorists etc. into the area?
Every single statistic about Bihar speaks to the same effect. By nature's endowments, it is the richest state in the country: yet the proportion of people below the poverty line in Bihar is a quarter higher than in the rest of the country. It has the lowest literacy rate in the country. In each Plan, a target is set for every State for the extent to which it has to mobilise its own resources for development programmes: during the Eighth Plan Bihar was able to raise only five per cent of the targeted resources. Rs 13,000 crores had been approved as the outlay for the State; it was able to spend -- just spend not "spend productively" -- just Rs. 5,405 crores. When the fodder loot was in the news, we learnt how for years on end accounts of the relevant departments had not been submitted in spite of reminders and the like from statutory authorities like the Auditor General. In those cases, non-finalization and non-submission were at least functional: they were devices for facilitating the loot. In fact, dispensing with such elitist artifacts as audited accounts has become the norm!
To enforce some discipline, it was decided some years ago that central assistance would be cut by 1 per cent if a State did not furnish audited figures of actual expenditure within four years of the close of a particular financial year. Not much of a requirement, not much of a penalty, you will say. But the Bihar Government has not been able to live up to even this little bit: between 1990 / 91 and 1997 / 98 Bihar lost central assistance worth Rs 360 crores because it could not spend amounts which had been provided for plan projects and schemes, and it lost Rs 30 crores because it could not furnish audited figures of what it said had in fact been spent!
That itself is a surprise: as the fodder-scam shows, it is by spending that Bihar leaders have been earning! Things have broken down to such an extent that they cannot ensure even that the amounts they receive from the Centre are spent! The standard charges of the State's politicians is that the Centre is treating the State in a step-motherly way, they are forever clamouring for more schemes. The reality?
Department of Rural Development: scheme, followed by actual expenditure till 1st January, 1999 as a per cent of amount allocated for the current year:
RVS: 18%;
ARVSP: 0;
VNP: 50;
RSP: 0.07;
CRSP: 0;
NSAP: 39;
NOAP:39;
NFBS: 36;
NMBS: 43 ....
All schemes: 31 per cent.
ARWSP, CRSP and NSAP are one hundred per cent centrally financed schemes -- the State Government does not have to put in any thing from its side: in these too the rates utilization are zero, zero and 39! Given the appalling State of Public Health and the recrudescence of diseases such as malaria, an intensive programme was drawn up for rural sanitation. No work, just no work has been done under it for the last three years.
Bihar has 67,000 villages. On paper 46,000 of these have been electrified. To say nothing of the number of hours for which electricity is available in these electrified villages, a Central team which visited the State in February found that, even on the telling of officials of State Electricity Board, 12,000 of those "electrified villages" have reverted to absolute darkness. Cause? The conductors etc. have been stolen!
Everyone keeps saying that the way land reforms have been sabotaged in Bihar has been one of the main causes of unrest and tensions in the State. Generations of politicians of the State have been fooling the poor saying they will deliver "land to the tiller". Facts? About twenty one lakh acres were donated under the Bhoodan movement. Vinoba is dead. The movement is long forgotten. It isn't as if the State had to part with any land of its own. It isn't if it had acquire land from the big landlords. The land had already been gifted. Nor is it that the Government had to do something that would be unpopular. And yet, all these years later, only a third of this land has been distributed!
Everyone has been saying that one of the impediments has been the woeful State of land records in the State. For this purpose the Centre formulated a scheme for the computerization of land records. It pledged to meet the entire expense of the task. About Rs 5 crores have been given to the State for this purpose; it has been able to utilise only Rs 22 lakhs! The target is that by December next year there shall be one hundred per cent coverage of "Jot Bahi/Khatta": actual coverage till now? Ten per cent. But Laloo is the mascot of social revolution, he is messiah of the poor!
The education system has broken down. Governmental hospitals are cess-pools of disease and dishonesty. Teachers have to go for months without their salaries, when at last they get the salary it is a fraction of what is due to them. The Secretariat remained paralysed for long a while ago...
It is well known of course that the State has sunk into a morass of crime. The even more ominous fact is that the nature of crime has changed. Indeed, the word "crime" is as much a misnomer as "mal-administration". Kidnapping for ransom, murders on failure to pay ransom -- these have become an industry, indeed, they are the only growth industry in Bihar. There is a second feature.
Reports available with the Centre list leader after leader, minister after minister as being the one behind this gang or that kidnappers and killers, of their being implicated in this instance of kidnapping and that, of murder, of gun-running, of smuggling.
"... Minister of State for Revenue and Land Reforms,... Minister of State for Relief and Rehabilitation,... Minister of States for Food, Civil Supply and Commerce,... Minister of State for Welfare are involved in various criminal cases," a Central report reads. Furnishing details of the cases, it remarks, "The charges against Shri..., Shri..., and Shri..., include, inter alia, kidnapping." It says that there are in addition reports that Shri..., another minister, "is patronising the gang of Bulaki Sah which is involved in kidnapping for ransom in Muzzafarpur area." "Another minister, Shri... is reportedly patronising the gang of Jamadar Singh which is involved in kidnapping for ransom... It lists two other ministers and notes that they too are suspected of being in the same industry.
"There are reports," it is proceeds, "that Shri..., MP (RJD) had connived in the kidnapping (July 15, 1997) of Shri N. K. Jaipuria, a leading businessman of Bangalore. Interrogation of one of the accused in the case revealed that the gang was in close contact with Shri... [The MP], Shri... (MLA, RJD) and Shri... of UP. The accused also revealed that he had collected three pistols from Shri... [the MP] to accomplish the task."
Next para: "S... M.... S..., an RJD MP from..., is a Mafia don having an estimated strength of 100 armed followers. He virtually runs a parallel administration in the district. His gang, it is reported, attacked those police officers who were inconvenient to him. It is learnt that he was responsible for the attack on SP, Siwan. Killing of Chandrashekhar, CPI-ML leader and ex-JNU student at Siwan, is also attributed to him. Equipped with automatic and semi-automatic weapons like AK series rifles (15), carbines (20), pistols/revolvers (160), Mausers (5), and hand grenades (80), the gang of.... operates in Siwan and its adjoining districts. The gang is responsible for political killings, collecting ransom from kidnapping rich traders/industrialists, extorting money from general traders/contractors, smuggling of arms, synthetic drugs, etc. The gang is reported to have relations with Daud Ibrahim gang presently based at Dubai..."
Next: "The gang headed by Parmanand Prasad, younger brother of Shri..., is active in East Champaran, Muzzafarpur and Siwan. The gang is reported to have in possession AK-47 / 56 rifles (10 approximately), carbines, regular and country-made revolvers / pistols / rifles / guns. The major activity of the gang is presently trans-border smuggling in association with Nepalese Mafia dons. The gang is also involved in illegal arms traffic. Besides, the gang is involved in kidnapping for ransom, political murder, extortion etc. The gang has a good hold in the State Government and the police machinery of the area..."
Next: "Apart from keeping their own criminal gangs, RJD leaders are also actively patronising criminal groups. Such patronization is learnt to have been extended by Shri..... through his close relatives, mainly his brother-in-law,..." The report goes on to detail the criminal activities --- smuggling across the Nepal border, it mentions the "close links" which the brother-in- law maintains with "the most dreaded criminal of West Champaran," Bhagar Yadav, it mentions that "huge money" is reportedly received from this dreaded criminal, involvement of the gangs is kidnapping for ransom. The report says that the officers have learnt that the leader, whom it names, "personally intervened and transferred the then SP of Bettiah district when the latter engaged the Bhagar Yadav gang in encounters (1997)..."
The activities of the rulers are listed -- elimination of criminals of other caste groups..., apart from links with criminal gangs, the links that are assiduously maintained with the Maoist Coordination Committee...
Each time a carnage attracts notice outside the State, the State Government has two standard responses. It sets up a commission of inquiry, it asks for more resources from the Centre -- more paramilitary forces of the Centre, more funds to modernize its own police. And what happens to these commissions and resources?
December, 1997: Massacres by the Ranvir Sena become an issue, allegations fly -- each party says the Sena is an affiliate of the other. Justice Amir Das Commission is set up to excavate the facts, and nail the affiliations.
Thirteen months have gone by. Last month the Chief Secretary told the Central team that accommodation for the Commission was in the process of being arranged!
June, 1998: Yet another leader is killed. A judicial commission of inquiry is set up. Seven months have gone by, the judge is yet to be named...
Resources: In December, 1997 Bihar had one company of central para-military forces, today it has twenty four... Funds have been given for modernization of the State police force: the Central team inquired about Palamu district which is severely affected by "Maoist" violence, only to find that not one bit of the funds made a vailable has reached; in other districts that are badly affected --- Dhanbad, Bokaro, Gumla and Ranchi -- the story turns out to be the same...
The terror in which the people live... The terror to which even the enforces of law have been reduced... the increasing incidents of violence against their own officers and defiance of their orders by policemen: 18 November, 1997: 50 - 60 policemen armed with lathis enter the court of the Additional District Judge, Bhagalpur, assault him for not granting armed bail to a sub- inspector...; 2 February, 1998: An assistant sub-inspector is killed by CPIML cadres, the D M comes to the funeral, the policemen manhandle and abuse him ..: 1 March, 1998: protesting the killing of a policeman by the MCC, policemen ransack the house of the SP, the SP and his family barely manage to escape from the rear gate, the D M rushes to pacify them, his car is set upon...; 14 April, 1998: Criminals kill a policeman, his colleagues block traffic near the Police Lines in Biharsharif, they refuse to lift the blockade even after the SP and D M appeal to them...
One of the senior-most officials visited Bihar in December, 1997. His note reveals what affairs have sunk to: "... Several Block Development Officers and Circle Officers do not stay at their headquarters and are seen mostly at district headquarters and/or loitering at Patna as they go only for a few days in a month to disburse the salaries and to honour the bills of the contractors. The routine functions of the revenue administration like inspection of sarkari land, preparation of land records are not taking place. The police station, the Circle Offices and blocks are not inspected by their Senior Officers. In some districts, even SPs and D Ms do not stir out of their houses after sun-set. Instances of police vehicles and police pickets being attacked and arms snatched are not infrequent. Development activities have been seriously undermined by all-pervasive corruption and extortions in the form of 'cuts', to the extent of 30% of the funds earmarked for various schemes, to the left-wing extremist groups. There are areas where the only symbol of administration is the isolated police picket set up to deal with the left wing extremist lawlessness and the Police Station...."
Team after team documents the collapse. Far from acting on the information, the Central Government cannot even make the information public. How did the secret report become public?, the criminals will orchestrate the shout. How has this journalist got what has not been made available even to Parliament?... Esoteric analyses will commence about the Official Secrets Act, about the privileges of Parliament... And the culprits will be back in the saddle...
Is that what the Constitution-makers intended? Is this condition just "mal- administration"? Is there no remedy for it under the Constitution? If there isn't, what can be a stronger ground for amending Article 356?
Daily Excelsior
March 05, 1999
Lethal Custodians
Arun Shourie
Things work at two levels in India, that of paper and that of fact. On paper, for instance, we have section 167 of the Indian Penal Code under which a public servant is to be hauled up for preparing a false document; we have section 192 of the same code under which the punishment for fabricating evidence that leads to conviction for murder is the same as for murder itself; indeed, on paper, we have the entire Criminal Procedure Code which provides safeguard after safeguard for the accused. On paper we have sections 25 to 27 of the Indian Evidence Act which state that no confession made to a police officer shall be used as proof against a person unless it has been made in the immediate presence of a magistrate. On paper we have Article 20(3) of the Constitution which decrees that no one can be compelled to testify against himself.
And if you read commentaries on these sections and Articles or the judgements in which they figure, you will find them becoming more and more liberal, more and more esoteric with each passing year.
That is what is on paper. In practice we have the police lockup. With the help of some of our correspondents, I have surveyed 45 police custody deaths that occurred during the last year in seven states and Delhi. Several states-even UP, and Bihar -- could not be covered for reasons to which I shall return in a moment. Even so the patterns are so uniform one death to another, from one state to another, that generalisations are possible.
First, the victims are invariably poor. You can decide for yourself whether this is so because the well-to-do do not commit crime in India; or, if they do, because they are not hauled in; or, if they are hauled in, because they are not interrogated vigorously (and in that too whether that is so because they confess more readily or because the police feel that vigour in such cases is liable to become public knowledge); or, finally, if they too are questioned just as vigorously as the poor, it is just that they are a hardier lot and can survive torture more cheerfully. In any event, the custody -- literally, the "guardianship", "care", "safe-keeping" of the police is fatal only for the poor.
Second, several of them seem to have been hauled in on no charge at all. Latoor Singh, a well respected Harijan of Hodal, the last Haryana township on the Delhi-Agra road, landed in police custody because he got into a heated argument with the SDM about the construction of a Harijan chaupal. Next, the police said, his body was found in a well. Outraged, the people gheraoed the police station. Police opened fire, killing two. Gangu, a Bawaria of villace Dehina in Mahendragarh district in Haryana was picked up, not because hee was wanted in a crime, but because the police could not locate the Bawaria they were looking for and thought that the Bawaria, sitting then at the village bus stand, must know where the other fellow is. That was on November 1, 1979. By November 5 he was dead. (His wife Misarli, who used to take him food every day, and was told on November 5 that Gangu had died, filed a private complaint, and sent letters to the Prime Minister, Home Minister etc., the usual lot. On January 23, two days before her complaint was to come up for hearing, a police party came to her house, dragged her out and shot her at point blank range). And so on.
Hauling a person in without "arresting" him and without registering a charge has become common practice in states such as Punjab and Haryana. The man is formally "arrested" and charges are registered only later when he has confessed to the crime under the customary methods. If he does not confess or if, through the thrashing, the police get convinced that he is indeed the wrong man or that he has learnt the lesson they wanted to teach him, he is let off with the warning that should he talk... Both Punjab and Haryana have institutionalised the more productive methods of interrogation by establishing a separate Criminal Interrogation Agency, an outfit of dregs specially skilled in the swadeshi methods of brutality.
Third, in the case of persons who were formally arrested and in whose case we have been able to obtain information about the charge, in the overwhelming number of cases the alleged crimes were puny -- theft (a goat in one case, copper wire in another), the casual complaint of another that the victim had occupied his land, ticket-less travel (believe it or not). In four cases the charge was serious: interrogation in relation to a murder in two cases, attempt to murder in one and murder in the fourth. But remember these are deaths in police custody. That means that in none of the cases was the guilt of anyone of them established, In each case the matter was still being investigated. Indeed, the hauling in of three of these four victims was the first step in the investigation.
Fourth, in seven of the 45 cases the bodies were so badly mauled, the evidence of external and internal injuries was so considerable that even the authorities had to eventually register cases of murder against policemen. Five were reported as having died from natural causes ("snake-bite", "heart failure on way to the hospital", "suddenly took ill", etc.) Five were said to have died for mysterious reasons (e.g., "found dead in lock-up"). All the others are said to have committed suicide.
Now, there are a few things to note about these accounts of suicide. If the police are to be believed, suicides almost invariably come in three forms -- the Victim jumps into a well, the victim jumps in front of a running bus (in Haryana the victims are, as in the case of the 59-year-old Rattan Singh of village Gumana, considerate enough to dive between the front and rear wheels of speeding buses so as to spare the drivers the liability that would be theirs if the victims were crushed by the front wheels of the vehicles) and third, the victim hangs himself by his lungi or his belt (the last in his lockup or, as in a case reported from Tamil Nadu, in the open courtyard of the police station).
Quite apart from the fact that even terminal patients, even those facing execution, do not commit suicide as readily as these victims accused of theft etc. seem to do, many of the police accounts of suicide are idiotic. Latoor Singh, to whose case I alluded earlier, is said to have committed suicide by jumping into a well when he went unescorted to ease himself in the fields. Now, why did he go unescorted into the fields when the police station itself has a lavatory which detainees use all the time? The police in Delhi cantonment started calling Emmanuel in to question him about a girl who had disappeared. They terrorised him into believing that he would be held responsible for her murder. Each time he was beaten severely and told to return the following evening. This went on every single day, every single day from March 27 to April 10, in this the capital of India. On April 11 he presented himself as usual at the police station. That evening he was found lying on a road, badgered and unconscious. He was rushed to one hospital and then to the other. But he died without regaining consciousness. The police version: suicide by taking poison. What about the beatings from March 27 to April 10? Why was his body bruised and badgered if all that had happened was that he had taken poison? And so on. (The girl Emmanuel was said to have murdered or kidnapped has since turned up).
So improbable are the accounts of suicide that in five of the cases in which the enraged people obtained new post mortems, deaths that had earlier been reported to have been by suicide were eventually proved to have been caused by external and internal injuries.
Next, what action was taken in the case of the deaths? In the seven cases where, under intense pressure from the public, murder was eventually proven, policemen have been suspended and murder charges have been framed against them. (As all the deaths occurred within the last year, one would not expect any conviction and none indeed has come). The customary procedure, however, is to assert first that no action is required as the case is obviously one of suicide or of death from natural causes; next, if public pressure is intense, to transfer a few policemen; if that too does not assuage public outrage, to suspend a policeman or two and then reinstate them (most often in another police station) after few months. In Gangu's case in Haryana, for instance, the inspector in charge of the CIA cell has been transferred to Chandigarh. In Emmanuel's case in Delhi, the sub-inspector and constable who were initially suspended in April have been reinstated and transferred to another police station within Delhi.
So much for the patterns in death. Now for five general points First, in no state are deaths in police custody examined systematically, not by the government, not by any civil rights organisation, not by the press. In no state is even information about them collected in a systematic manner. In each case, inquiries about the death are looked upon by the police and the civil administration as illegitimate encroachements into their private preserves. And this is why in spite of our efforts we could obtain little information about U.P. and Bihar.
Second, in each instance where an inquiry was ordered, it had to be wrested after intense pressure by the people.
Third, remember that even when torture does not result in death, its effects can be lethal. Three months ago in Delhi the local police successfully got two young boys to confess that they had murdered a third boy only to have the latter turn up soon after the case of murder was formally registered against the first two. (Contrast the formal provisions of section 192 of the IPC I cited earlier with the fact that all that has happened to the Station House Officer and two sub-inspectors who had shown such exemplary efficiency in proving murder is that they have been transferred to a neighbouring police station).
Fourth, contrast the helplessness of these victims and of those who subsequently take up their cause with the effectiveness with which the well-heeled and the influential are able to use the same sections of the Codes, of the Evidence Act and the same Article 20 of the Constitution to stall proceedings against themselves for decades.
Finally, note the strength of the police (which functions in these matters as quite the most effective trade union) and note its causes -- the almost total absence of civil rights organizations and the inability of the people to sustain their anger. How else would the police get away by merely transferring the guilty or reinstating them after a month or two?
How would you want me to end this survey -- with the plea that the formal provisions of law should be adhered to, with the plea to the police to be humane, with the plea to the public to keep their anger from subsiding with such unvarying certainty, with the plea that we build up strong civil rights organizations, with the plea that the press do its job better? Choose the one you think will bear fruit.
Indian Express
August 11, 1980
Things work at two levels in India, that of paper and that of fact. On paper, for instance, we have section 167 of the Indian Penal Code under which a public servant is to be hauled up for preparing a false document; we have section 192 of the same code under which the punishment for fabricating evidence that leads to conviction for murder is the same as for murder itself; indeed, on paper, we have the entire Criminal Procedure Code which provides safeguard after safeguard for the accused. On paper we have sections 25 to 27 of the Indian Evidence Act which state that no confession made to a police officer shall be used as proof against a person unless it has been made in the immediate presence of a magistrate. On paper we have Article 20(3) of the Constitution which decrees that no one can be compelled to testify against himself.
And if you read commentaries on these sections and Articles or the judgements in which they figure, you will find them becoming more and more liberal, more and more esoteric with each passing year.
That is what is on paper. In practice we have the police lockup. With the help of some of our correspondents, I have surveyed 45 police custody deaths that occurred during the last year in seven states and Delhi. Several states-even UP, and Bihar -- could not be covered for reasons to which I shall return in a moment. Even so the patterns are so uniform one death to another, from one state to another, that generalisations are possible.
First, the victims are invariably poor. You can decide for yourself whether this is so because the well-to-do do not commit crime in India; or, if they do, because they are not hauled in; or, if they are hauled in, because they are not interrogated vigorously (and in that too whether that is so because they confess more readily or because the police feel that vigour in such cases is liable to become public knowledge); or, finally, if they too are questioned just as vigorously as the poor, it is just that they are a hardier lot and can survive torture more cheerfully. In any event, the custody -- literally, the "guardianship", "care", "safe-keeping" of the police is fatal only for the poor.
Second, several of them seem to have been hauled in on no charge at all. Latoor Singh, a well respected Harijan of Hodal, the last Haryana township on the Delhi-Agra road, landed in police custody because he got into a heated argument with the SDM about the construction of a Harijan chaupal. Next, the police said, his body was found in a well. Outraged, the people gheraoed the police station. Police opened fire, killing two. Gangu, a Bawaria of villace Dehina in Mahendragarh district in Haryana was picked up, not because hee was wanted in a crime, but because the police could not locate the Bawaria they were looking for and thought that the Bawaria, sitting then at the village bus stand, must know where the other fellow is. That was on November 1, 1979. By November 5 he was dead. (His wife Misarli, who used to take him food every day, and was told on November 5 that Gangu had died, filed a private complaint, and sent letters to the Prime Minister, Home Minister etc., the usual lot. On January 23, two days before her complaint was to come up for hearing, a police party came to her house, dragged her out and shot her at point blank range). And so on.
Hauling a person in without "arresting" him and without registering a charge has become common practice in states such as Punjab and Haryana. The man is formally "arrested" and charges are registered only later when he has confessed to the crime under the customary methods. If he does not confess or if, through the thrashing, the police get convinced that he is indeed the wrong man or that he has learnt the lesson they wanted to teach him, he is let off with the warning that should he talk... Both Punjab and Haryana have institutionalised the more productive methods of interrogation by establishing a separate Criminal Interrogation Agency, an outfit of dregs specially skilled in the swadeshi methods of brutality.
Third, in the case of persons who were formally arrested and in whose case we have been able to obtain information about the charge, in the overwhelming number of cases the alleged crimes were puny -- theft (a goat in one case, copper wire in another), the casual complaint of another that the victim had occupied his land, ticket-less travel (believe it or not). In four cases the charge was serious: interrogation in relation to a murder in two cases, attempt to murder in one and murder in the fourth. But remember these are deaths in police custody. That means that in none of the cases was the guilt of anyone of them established, In each case the matter was still being investigated. Indeed, the hauling in of three of these four victims was the first step in the investigation.
Fourth, in seven of the 45 cases the bodies were so badly mauled, the evidence of external and internal injuries was so considerable that even the authorities had to eventually register cases of murder against policemen. Five were reported as having died from natural causes ("snake-bite", "heart failure on way to the hospital", "suddenly took ill", etc.) Five were said to have died for mysterious reasons (e.g., "found dead in lock-up"). All the others are said to have committed suicide.
Now, there are a few things to note about these accounts of suicide. If the police are to be believed, suicides almost invariably come in three forms -- the Victim jumps into a well, the victim jumps in front of a running bus (in Haryana the victims are, as in the case of the 59-year-old Rattan Singh of village Gumana, considerate enough to dive between the front and rear wheels of speeding buses so as to spare the drivers the liability that would be theirs if the victims were crushed by the front wheels of the vehicles) and third, the victim hangs himself by his lungi or his belt (the last in his lockup or, as in a case reported from Tamil Nadu, in the open courtyard of the police station).
Quite apart from the fact that even terminal patients, even those facing execution, do not commit suicide as readily as these victims accused of theft etc. seem to do, many of the police accounts of suicide are idiotic. Latoor Singh, to whose case I alluded earlier, is said to have committed suicide by jumping into a well when he went unescorted to ease himself in the fields. Now, why did he go unescorted into the fields when the police station itself has a lavatory which detainees use all the time? The police in Delhi cantonment started calling Emmanuel in to question him about a girl who had disappeared. They terrorised him into believing that he would be held responsible for her murder. Each time he was beaten severely and told to return the following evening. This went on every single day, every single day from March 27 to April 10, in this the capital of India. On April 11 he presented himself as usual at the police station. That evening he was found lying on a road, badgered and unconscious. He was rushed to one hospital and then to the other. But he died without regaining consciousness. The police version: suicide by taking poison. What about the beatings from March 27 to April 10? Why was his body bruised and badgered if all that had happened was that he had taken poison? And so on. (The girl Emmanuel was said to have murdered or kidnapped has since turned up).
So improbable are the accounts of suicide that in five of the cases in which the enraged people obtained new post mortems, deaths that had earlier been reported to have been by suicide were eventually proved to have been caused by external and internal injuries.
Next, what action was taken in the case of the deaths? In the seven cases where, under intense pressure from the public, murder was eventually proven, policemen have been suspended and murder charges have been framed against them. (As all the deaths occurred within the last year, one would not expect any conviction and none indeed has come). The customary procedure, however, is to assert first that no action is required as the case is obviously one of suicide or of death from natural causes; next, if public pressure is intense, to transfer a few policemen; if that too does not assuage public outrage, to suspend a policeman or two and then reinstate them (most often in another police station) after few months. In Gangu's case in Haryana, for instance, the inspector in charge of the CIA cell has been transferred to Chandigarh. In Emmanuel's case in Delhi, the sub-inspector and constable who were initially suspended in April have been reinstated and transferred to another police station within Delhi.
So much for the patterns in death. Now for five general points First, in no state are deaths in police custody examined systematically, not by the government, not by any civil rights organisation, not by the press. In no state is even information about them collected in a systematic manner. In each case, inquiries about the death are looked upon by the police and the civil administration as illegitimate encroachements into their private preserves. And this is why in spite of our efforts we could obtain little information about U.P. and Bihar.
Second, in each instance where an inquiry was ordered, it had to be wrested after intense pressure by the people.
Third, remember that even when torture does not result in death, its effects can be lethal. Three months ago in Delhi the local police successfully got two young boys to confess that they had murdered a third boy only to have the latter turn up soon after the case of murder was formally registered against the first two. (Contrast the formal provisions of section 192 of the IPC I cited earlier with the fact that all that has happened to the Station House Officer and two sub-inspectors who had shown such exemplary efficiency in proving murder is that they have been transferred to a neighbouring police station).
Fourth, contrast the helplessness of these victims and of those who subsequently take up their cause with the effectiveness with which the well-heeled and the influential are able to use the same sections of the Codes, of the Evidence Act and the same Article 20 of the Constitution to stall proceedings against themselves for decades.
Finally, note the strength of the police (which functions in these matters as quite the most effective trade union) and note its causes -- the almost total absence of civil rights organizations and the inability of the people to sustain their anger. How else would the police get away by merely transferring the guilty or reinstating them after a month or two?
How would you want me to end this survey -- with the plea that the formal provisions of law should be adhered to, with the plea to the police to be humane, with the plea to the public to keep their anger from subsiding with such unvarying certainty, with the plea that we build up strong civil rights organizations, with the plea that the press do its job better? Choose the one you think will bear fruit.
Indian Express
August 11, 1980
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