March 17, 2012
by Stan Swamy
“Mere membership of a banned organisation will not make a person a criminal … “
– Supreme Court on 3rd February 2011 (Criminal Appeal No(s). 889 of 2007)
“Mere possession of Maoist literature does not make a person a Maoist”
– Supreme Court , while granting bail to Dr. Binayak Sen on 15th April 2011
Context: in Jharkhand, during the past ten years, 550 young men & women were killed by the police & para-military forces as being Naxalites (Hindustan Times, Ranchi edition, 18.4. 2011.) There are now about 6000 Adivasis in jail (Ajay Sharma in Hindustan Times, 08.02.2012). The charge against the majority of them is that “Maoist literature” was found in their possession and that they are “helpers of Maoists”.
1. Mere possession of Maoist literature is not an offense
Observing that mere possession of Maoist literature would not be considered an offence of sedition, the Supreme Court granted bail to Dr.Binayak Sen.
The sad fact in Jharkhand is that in very many cases the police have arrested young men and women precisely because they had some “Naxalite literature” in their possession. What exactly constitutes ‘nNxalite literature’ has not been defined. The question is: Is any written material that is critical of the Government and its functioning forbidden in our democratic society? Is putting out pamphlets calling on people to resist displacement an offence? Is announcing rallies and public meetings to protest indiscriminate arrests of young people improper? Is calling on people to assert their rights on their jal, jangal, jamin not allowed?
What the police usually do is arrest a person on the alleged reason of having Naxal literature and then add on other clauses of the penal code on the hapless victim. Very sad to say, hundreds of young men and women are languishing in the different jails of Jharkhand under this accusation.
It is the urgent need of the hour that an independent commission is appointed to examine all the cases under this accusation and free them.
2. Mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.
The court rejected the doctrine of ‘guilt by association’. Mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence
It is common knowledge that very many young men & women are held in prison on the suspicion of being “helpers of Naxalites”. After arresting them other penal clauses are added on. It is an easy label that can be put on any one whom the police want to catch. It does not require any proof or witness. Let us keep in mind that they are not even members of any nNxalite outfit. Supreme Court says even membership in a banned organisation does not make a person a criminal. How far removed are the law and order forces from the judiciary!
Even if there is a modicum of humanity left in the govt and the police, these young men and women should be set free.
3. Supreme Court’s directives for arresting persons are ignored by police
The SC has issued very clear directives to the police in the process of arresting a person and has spelt out the rights of the arrestee / prisoner. In a judgment known as ‘D.K. Basu judgment’ passed on 8 March 2005, [D.K. Basu vs. State of West Bengal (1997) 1 SCC 216] the SC gives the following guidelines:
In view of the increasing incidence of violence and torture in custody, the Supreme Court of India has laid down 11 specific requirements and procedures that the police and other agencies have to follow for the arrest, detention and interrogation of any person.
— Police arresting and interrogating suspects should wear “accurate, visible and clear” identification and name tags, and details of interrogating police officers should be recorded in a register.
— A memo of arrest must be prepared at the time of arrest. This should:
– have the time and date of arrest.
– be attested by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made.
– be counter-signed by the person arrested.
— The person arrested, detained or being interrogated has a right to have a relative, friend or well-wisher informed as soon as practicable, of the arrest and the place of detention or custody. If the person to be informed has signed the arrest memo as a witness this is not required.
— Where the friend or relative of the person arrested lives outside the district, the time and place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest. This should be done by a telegram through the District Legal Aid Authority and the concerned police station.
— The person arrested should be told of the right to have someone informed of the arrest, as soon as the arrest or detention is made.
— An entry must be made in the diary at the place of detention about the arrest, the name of the person informed and the name and particulars of the police officers in whose custody the person arrested is.
–The person being arrested can request a physical examination at the time of arrest. Minor and major injuries if any should be recorded. The “Inspection Memo” should be signed by the person arrested as well as the arresting police officer. A copy of this memo must be given to the person arrested.
— The person arrested must have a medical examination by a qualified doctor every 48 hours during detention. This should be done by a doctor who is on the panel, which must be constituted by the Director of Health Services of every State.
— Copies of all documents including the arrest memo have to be sent to the Area Magistrate (laqa Magistrate) for his record.
— The person arrested has a right to meet a lawyer during the interrogation, although not for the whole time.
— There should be a police control room in every District and State headquarters where information regarding the arrest and the place of custody of the person arrested must be sent by the arresting officer. This must be done within 12 hours of the arrest. The control room should prominently display the information on a notice board.
These requirements were issued to the Director General of Police and the Home Secretary of every State. They were obliged to circulate the requirements to every police station under their charge. Every police station in the country had to display these guidelines prominently. The judgment also encouraged that the requirements be broadcast through radio and television and pamphlets in local languages be distributed to spread awareness.
Failure to comply with these requirements would make the concerned official liable for departmental action. Not following these directions constitutes a contempt of the Supreme Court, which is a serious offence, punishable by Imprisonment and fine. This contempt of court petition can be filed in any High Court.
These requirements are in addition to other rights and rules, such as:
– The right to be informed at the time of arrest of the offence for which the person is being arrested.
– The right to be presented before a magistrate within 24 hours of the arrest.
– The right not to be ill-treated or tortured during arrest or in custody.
– Confessions made in police custody cannot be used as evidence against the accused.
– A boy under 15 years of age and women cannot be called to the police station only for questioning.
The important question is: under which law or penal code the police & para-military forces are arresting young men & women as part of their anti-Naxal operations? It is very clear they are not abiding by the SC ruling. As such they should be sued for contempt of court.
4. ‘To get Bail is a right of the prisoner’. . .but who will bail them out?
Getting bail is not within the reach of most ‘under trial prisoners’. For one thing, the lower courts consistently refuse to grant bails even for the simplest of cases. That means the prisoner has to approach the High Court, and some times the Supreme Court to get bail. The second factor is the expense involved. An average expense at the level of the High Court is between ten to twenty thousand rupees. Now how many Adivasi families can afford this expense is a big question. In fact most of them are not even in a position to come to the jail and meet their dear ones. At the same time, the govt does not reach out to them by providing free legal aid. In short, the 6000 and more Adivasi under trial prisoners are just condemned to languish in jail for years to come. It is important to remember that of those who have been arrested under UAPA and CL-17 as part of Operation Green Hunt, there has not been even a single conviction. We can be sure that when the trial will take place, most of them will be acquitted. Regrettably there is no time limit within which the trial has to take place. Justice delayed is justice denied.
To conclude, it is no use taking this issue to the govt because it is itself doing this injustice. The only other possibilities, in my opinion, are that we make this the agenda of the Jharkhandi People’s Movements and explore ways of making a legal case and access the judiciary at the High Court / Supreme Court level and demand that an independent committee of legal & human rights activists examine all the cases and place their findings in public domain.