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Some justice, at last

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Following a path-breaking directive of the National Human Rights Commission, the Maharashtra government pays Rs. 5 lakh as compensation to victims of police torture

On April 4, 2000 an officer of the Shreevardhan police station visited the home of the Haspatels, a Muslim family from Walwat village on the Konkan coast in Maharashtra’s Raigad district, to hand over to them a cheque of Rs 5 lakh on behalf of the state government. The Maharashtra government was merely acting on the interim order of the chairperson of the National Human Rights Commission, Justice J.S. Verma, ruling that the Haspatels be compensated for the brutal violation of their human rights in 1993 by officers of the law.

Seven years ago, police officers from the same police station had claimed to recover ‘projectiles’ (rocket launchers) from the Haspatel house. They were alleged to be part of the conspiracy which led to Mumbai’s serial bomb blasts in March 1993. Ten days after Iqbal Haspatel and his son Mubeen had been arrested, it was established that the "mini-rocket launchers" the police claimed to have discovered from the house of the Haspatels were nothing more dangerous than spindles used in a local yarn factory! It was also evident by then that the family members had nothing whatsoever to do with the bomb blasts and were released.

But meanwhile the Haspatels had been badly battered and brutalised. The two male members of the family, Iqbal (65) and Mobeen (17) had been detained under the Indian Arms Act and tortured daily. Also illegally detained, verbally abused and humiliated for five days were two women from the family — Zubeida (55) and her daughter-in-law along with her 18-month-old baby.

Senior police officials, including officers Bal, DSP Daithankar and Kalamkar, assisted by a woman constable, beat the family, stripped the men naked and paraded them before the Haspatel women everyday. Mobeen had suffered epileptic attacks in the past but had been cured for over ten years. He started getting renewed attacks after being subjected to "parrot torture" for four hours every day. "You have to stop saying Allah. Or you will have to go back to Pakistan," was the most common refrain they heard form policemen in the lock-up.

As part of the investigation into the bomb blasts, scores of Muslims from Mumbai and from the coastal part of Raigad district were illegally detained, brutally tortured and humiliated – because they were Muslims. The mistreatment of the Haspatels was among the most brazen and shocking examples of such police misconduct. Coming as this did so soon after the experience of the December 1992-January 1993 riots, for the Muslims of Mumbai and Maharashtra, the torture and the humiliation were fresh proof of the anti-Muslim bias of the police force.

Aided by social activist-cum-businessman Ghulam Mohammed Peshimam, former chief minister of Maharashtra, A.R. Antulay, and others – one of the editors of Combat had video-taped the accounts of the Haspatels and other victims of police brutality in Mumbai and in Raigad on – the Haspatel family was determined to seek redressal of their grievance. They wanted the police officers guilty of criminal misconduct to be tried and punished and they wanted compensation from the state.

Justice Vermeer’s path-breaking interim order of January 21, 2000 directing the Maharashtra government to compensate innocent victims of police brutality bypassing pending criminal plaints before the High Court and lower courts introduces an important precedent in crimino-judicial study. His interim order is also noteworthy for the fact that while two previous chairpersons of the NHRC failed to respond to repeated pleas for justice, Justice Verma promptly ordered the reopening of the case on being informed of the findings of a CBI-inquiry into the case.

"If I don’t get justice, I will turn into a rebel," one victim of torture by the Sreevardhan police had raged during a video-taped interview in 1993 to one of the editors of Combat. For the Haspatel family and for other victims of torture and humiliation in 1993, Justice Verma’s order should go a long way in re-establishing their faith in the system.

"All echelons of the Indian State must be sensitive to the sufferings and human rights violations of all sections of society. But when the rights of our minorities are abused, as was clearly the case here, we need to be particularly sensitive. Because our creed is secularism and this must be manifest and re-inforced through our actions. We must genuinely assure our minorities that they will be protected and compensated adequately when such violations take place," Justice Verma told Communalism Combat in a telephonic interview.

"It is a very encouraging order for the victims of human rights violations," says senior counsel for the Haspatels, Majeed Memon, "It will serve as a powerful deterrent for power-wielding police officers". "This case is definitely a trend-setter and an important precedent from the NHRC," adds Manohar Shetty, junior counsel for the Haspatels, "It may or may not have any effect on the pending case before the courts because the judiciary takes its own course. But in terms of acting as a restraint on the law and order machinery against further such actions, it is sure to send out the right signals."

But the trial and punishment of the police personnel if found guilty for torturing is still pending.

Soon after his release Iqbal Haspatel had filed a private complaint against the police in 1993 at Shreevardhan. The chief judicial magistrate dismissed it on technical grounds citing section 195 of the CrPC, according to which prior permission of the government is necessary for the prosecution of any public servant, including a police officer.

Haspatel’s plaint was dismissed despite the existence of a Supreme Court judgement that government sanction for prosecution of a public servant is necessary only where the charge is that of dereliction of duty. Since the conduct for which police officers in this case were accused amount to clearly criminal acts that include beating, abuse, dacoity etc, no government sanction is in fact necessary.

Iqbal Haspatel’s complaint was dismissed on technical grounds. However, the provisions of both the CrPC and the Bombay High Court Criminal Manual, compel the chief judicial magistrate (in this case, one Sakhalkar) in all cases where there is any complaint of assault in police custody (in this case it was brutal torture) to send all the requisite papers accompanied by certified medical findings by doctors to the Sessions Judge.

In the case of the Haspatels, in April 1993 itself, severe injuries on the person of both detainees had been certified in detail soon after release: 17 on one person and 9 on the other. Hence, when Sakhalkar’s report was sent to the Sessions Judge at Alibag, he was bound to order a prima facie investigation on the basis of the findings of the medical report. As sufficient evidence of torture and abuse in police custody were established beyond doubt on the basis of these prima facie investigations, the Sessions Judge, again, compelled by the law, directed the chief judicial magistrate Sakhalkar to himself file a private prosecution on behalf of the government.

Statements of all accused police officers were recorded and treated as final version for the purposes of the prosecution on behalf of the government. This is a routine procedure. Police officers Bal and Daithankar, and Kalamkar are the chief policemen accused of gross misdemeanours. The criminal plaint is still pending in the district court. Meanwhile, the accused police officers have approached the Mumbai High Court, once again, seeking the shelter of no government sanction against their prosecution. This writ is still pending before the HC and is expected to come up soon.

Meanwhile, in 1993 itself, a parallel CID inquiry that had been ordered independently recorded and established positive evidence against the erring policemen. Former chief minister, A.R. Antulay had approached the NHRC on the basis of the CID investigation report submitted in April 1994.

Archived from Communalism Combat, April 2000, Year 7  No. 58, Special Report 2

JUSTICE DENIED

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Seven years ago, India's Christians told the Union government they were ready for sweeping changes in their outdated personal laws to make it gender just. The community now plans an all-India
campaign to demand prompt legislation from the BJP-led NDA
government

When a delegation of Christian leaders met Prime Minister Atal  Behari Vajpayee in  early December,  among other things, the long–pending demand of the community for reform in Christian personal laws also entered the conversation. “I told Mr. Vajpayee, "Why don’t you make this a new millennium’s gift to India’s Christians?’ But the Prime Minister did not make any comment”, Delhi’s archbishop Alan de Lastic told Communalism Combat. 

What the archbishop was asking for and what the Prime Minister would not commit himself to is, in fact, not a question of ‘gift’ but a matter of ‘justice’ and ‘right’. Since February 1994, successive governments in New Delhi have been sitting tight on three Bills, which suggest comprehensive reforms in the family laws of India’s Christians and which enjoy the full backing of both the clergy and laity of virtually every Christian denomination in India. 

When enacted, the new laws would be applicable only to the Christian community in the country. But judged by the yardstick of gender justice, they would compare well with progressive family laws in force elsewhere in the world today. Among other things, several progressive features contained in the country’s Special marriages Act, 1954 have been incorporated in the proposed reforms.

Having waited for seven long years – first, for the avowedly secular Congress and United Front governments, and, subsequently, for the BJP–led governments to introduce fresh legislation — the All India Catholic Union (AICU), an organisation of the laity representing the largest body of Christians in the country, has now decided to launch a national campaign to jolt the Union government into action. 

As it  is well known, all religion–specific family (personal) laws in India — pertaining to marriage, divorce, maintenance, succession, adoption — are heavily biased against women. In the case of the Christian personal laws, the Indian Divorce Act 1869 (IDA 1869) and the Christian Marriage Act 1872, are in particular and urgent need of change. However terrible and traumatic the marriage may be, it is virtually impossible for a Christian woman to get a divorce under the provisions of the IDA.

These laws were enacted by the British Parliament during the British rule in India and based on the then prevailing notions of marriage and divorce in English law. Ironically, while they have since been radically overhauled in their country of origin, in India the situation has remained static for well over a century. Understandably, different segments of the Christian community have been engaged in intra–sect and intra–community dialogue, discussion and debate for changes in the personal laws applicable to their community since the mid–’80s. 

The issue of reforming existing laws was first raised by Protestant groups who have been asking successive governments for a new Christian Marriage Act. But initially there was resistance from the Catholic Bishops Conference of India (CBCI), the all-India religious body which represents Roman Catholics, the largest group of Christians in India. This is because for them marriage is an indissoluble sacrament; once a marriage is consummated, no power on earth could dissolve that bond. 

The Joint Women’s Programme (JWP), which began efforts to change the Christian personal laws in 1984, took the initiative in preparing a new set of draft bills for reform. By 1990, three new bills — the Christian Marriages and Matrimonial Clauses Bill (1990), the Indian Succession Amendment Bill (1990) and the Christian Adoption and Maintenance Bill (1990) were ready for consideration. Taken together, they were positive efforts towards updating family legislation and based on egalitarian gender values. 

Among other progressive changes, chapters 5, 6 and 7 of the Special Marriage Act 1954, on anullity of marriage, divorce, jurisdiction and procedure were incorporated, with the additional provision that marriages annulled by the Church be declared null and void.
The new bills enjoyed the support of Protestant and orthodox churches, as also of the All India Catholic Union, Satyashodhak (a Mumbai–based active group of Catholic women) and a large section of Catholics in the country. But the Catholic Bishops’ Conference of India (CBCI) did not give its consent because of the provision for divorce. 

At a national conference held in New Delhi, in 1990, to discuss the draft bills and at which representatives of the church and other Christian organisations of the laity were present, the CBCI told that it would not associate itself with that part of the bill which deals with divorce, but would not oppose the rest of the provisions which were in keeping with the teachings of the Roman Catholic Church. 

After protracted dialogue over the next three years, the CBCI finally agreed to give its consent after a compromise was worked out. It was agreed that divorce would be defined as “a termination of the civil effects of marriage” which does not compromise the teaching of the Catholic Church on the indissolubility of marriage. Finally, three draft bills — Christian Marriage Bill, 1994, Indian Succession Amendment Bill, 1994 Christian Adoption and Maintenance Bill, 1994 —  acceptable to all Christian denominations in India were submitted to Prime Minister Narasimha Rao in February 1994. There was also common consent on the repeal of the existing Indian Christian Marriage Act, 1872, Indian Succession Act, 1925 and Indian Divorce Act, 1869. 

The consensus for change within the Christian community was arrived at after extensive dialogue, discussion and debate in which a large number of organisations, representing both the clergy and the laity of different denominations were involved. Despite this, in response to a query, the then Union law minister, H.R. Bharadwaj, coolly stated in Parliament on March 6, 1996: “As the policy of the government has been not to interfere in the personal laws of the minority community, unless the initiative came from the community concerned, the government has requested the National Commission for Minorities to assess the views of the Christian community by interacting with different sections of it, before the matter is processed further. Hence, it is too early to set any time frame for undertaking any legislation in this regard.”

The Minorities Commission responded to the government with one of its members, B.S. Ramoowalia, observing that “the Minorities Commission had already informed the government that the CPLs (Christian Personal Laws) be changed according to the request of the Christian community”. Ramoowalia also recommended that the different church denominations send letters supporting the proposed bills. 

It is now four years since that requirement has been complied with. But for some inexplicable reason, successive governments at the Centre have reluctant to act. In the process, Christian women continue to suffer. 

It is in the context of this backdrop that the working committee of AICU, which met in Kanpur on January 15, has resolved to launch a nation–wide campaign on the issue. AICU is a mass–based, democratic, grassroots federation with a presence in more than hundred of the 122 dioceses of the Catholic Church in India. It has a collective membership that runs into lakhs. Will the NDA government listen?

Archived from Communalism Combat, February 2000. Year 7  No, 56, Cover Story

Herr Haider, a new Hitler?

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A xenophobic, extremist right–wing party — whose leader seems like a reincarnation of Adolf Hitler to many people and political leaders in Europe — is now an equal partner in the new government in Austria. The rise to power of such a man in the heart of democratic Europe has thrown the entire European community in an agonising soul–search. Quite apart from the spectre of a new fascist movement on the ascendant, there is the more immediate problem of the Austrian example providing a powerful boost to racist and xenophobic extremist organisations all over Europe.

Joerg Haider is the name of the man whose far–right Freedom Party (FPO) notched up 27 per cent of the popular votes in the general elections last October to emerge as Austria’s second largest party, with 52 of the total 183 seats. First in the electoral race but short of a majority, the Social Democrats failed to reach an agreement on renewing their 13–year–old coalition with Austria’s conservative People’s Party but refused any truck with the FPO. It was then that Herr Haider struck a deal and a very reluctant President Thomas Klestil finally swore in a new government on February 4.

(A throwback to 1933, when President Paul von Hindenberg had invited Hitler’s party into the German government? Not many had then foreseen the threat that Hitler’s 33 per cent of the vote posed to German democracy or world peace, no one had then anticipated the Nazi party’s aggressive military intent, its rampant anti-Semitism, or the ‘Final Solution’).

Herr Haider’s politics is as much a cause for concern as his background. The main plank of his party in the last election was his populist demand that the immigrants from the Balkans and Eastern Europe, who now constitute around five per cent of Austria’s population, be sent back to their countries. With unemployment running at nearly 11 per cent, the FPO attracted the votes of half of all male voters under 30. Haider also strongly opposes the entry of East European countries into the presently 15–member European Union of which Austria is a part.

That is not all. The FPO’s Nazi roots are well known. Haider’s own parents were strong Nazi supporters and the large estate he inherited from them was Jewish–owned until it was "Aryanised" in 1938. Recently, Haider publicly praised Hitler’s "orderly" employment policy, but subsequently apologised.

To compound matters further, unlike Germany, Austria as a country and Austrians as a people have yet to come to terms with their pro–Nazi past. Austrians see themselves as Nazism’s "first victim" while the rest of the West sees them as Hitler’s "first willing accomplice". When Hitler annexed Austria, there were jubilant crowds on the streets of Vienna and elsewhere; and spontaneous incidents of anti–Semitism followed. (Among other ignominies, Jewish women were made to scrub the streets on their hands and knees while Austrian Nazis urinated all over them).

This, incidentally is the second time in 14 years that Austria is troubling the European conscience. In 1986, the country elected Kurt Waldheim as its President ignoring his involvement in Nazi atrocities. Waldheim pretended he could not remember what he did many decades ago.

Now faced with a leader like Herr Haider in its midst, Europe is divided over how to respond to the challenge: No compromise on "principles and values", no truck with racism, rabid nationalism and crypto–fascism of the FPO variety? Or, adherence to the "first principle of democracy" ("parliamentary majority must be respected") and non–interference in the internal affairs of a sovereign state?

The other 14 members of the European Union, besides Austria, had threatened to sever relations with one of its own partners if Haider’s chauvinist party became a part of the Austrian government. To make itself more presentable to the western world, the coalition government has evolved a formula which includes the following: Haider himself did not join the national government but continues as a regional governor; two, despite him being Haider’s first choice for the post, Thomas Prinzhorn does not occupy the vice–chancellor’s chair; and, three, the coalition partners have pledged themselves to an extraordinary declaration which reads — "Austria accepts her responsibility arising out of the tragic history of the 20th century and the horrendous crimes of the National Socialist regime. Our country is facing up to the light and dark sides of its past and to the deeds of all Austrians, good and evil, as its responsibility". The declaration also pledges the future government to work for "an Austria in which xenophobia, anti-Semitism and racism have no place".

Despite this, several European governments — with Germany, France, Belgium and Portugal in the lead – took the first steps towards the political isolation of Austria the moment the new government was sworn–in. But some are worried that penal action against Austria will only increase Herr Haider’s appeal: the latest opinion poll in Austria indicates that if elections were held today, 33 per cent would vote for his party against the 27 per cent last October.

Is there some parallel between what Europe is now experiencing and India, where the political wing of the sangh parivar — the BJP — was a political pariah for other political parties for some years but now leads a coalition government at the Centre?

Archived from Communalism Combat, February 2000. Year 7  No, 56, International