Justice Sachar was educated in Lahore, first at the D. A. V. School, and then at Government College Lahore and Law College, Lahore. In 1952, Sachar enrolled as an advocate in Shimla; in 1960, he enrolled as an advocate in the Supreme Court. Sachar was appointed as an Additional Judge of the Delhi High Court in 1970, then reappointed as a permanent in 1972. He also served as acting Chief Justice of the Sikkim High Court.  He served as Chief Justice of the Delhi High Court from August 1985 to December 1985, when he retired.

Justice Sachar was a longtime advocate for human rights, and was associated with the rights group People’s Union for Civil Liberties (PUCL) following his retirement. In 1986, he was elected as president of the PUCL, and he remained in this position until 1995. He co-authored the ‘Report on Kashmir Situation’, when militancy had reached a high. He also served on an advisory committee to review the Protection of Human Rights Act, and to consider if changes and amendments were required. The committee submitted its report in 2000, and recommended adaptations to the membership of the National Human Rights Commission (NHRC), its procedures to avoid delays, and recommended expanding its scope. Sachar was also a strong proponent for reservations for women in Parliament, and had several times stated that this measure could help avoid gender bias in legal cases. 

Sachar also served as the United Nations Special Rapporteur on Promoting the Realization of the Right to Adequate Housing. In his capacity as Special Rapporteur, Sachar researched and published literature in the 1990s on the the causes of the global housing crisis, as well as the legal issues tied to “the human right to adequate housing.”  In 2000, Sachar served on an unofficial two-day judiciary inquiry tribunal by the Indian People’s Human Rights Commission (IPHRC) that looked into the large-scale demolitions of slums in the Sanjay Gandhi National Park, resulting thousands of slumdwellers being evicted. Sachar said in his statement that the move to displace about two lakh people from the national park was a human rights violation, and questioned how “environmental concerns” weighed “against humans”. 

In 2003, Sachar, serving as PUCL’s counsel, argued that the Prevention of Terrorist Activities Act (POTA) should be reversed as it violated fundamental rights. He contended that the act’s provision that made statements given to the police admissible as evidence contradicted the right of the accused under criminal law, and argued that the act did not include appropriate provisions to uphold citizens’ fundamental rights. In October 2009, Sachar noted that innocent people were “victimised in the name of terror probes,” saying that they were being “taken into custody without registering a charge and are being detained” for long periods. He emphasised the need to reverse laws that permitted an individual’s detention without charges. 

Most significantly, in 2005, Sachar was appointed to head a committee established by the then United Progressive Alliance (UPA) government to examine the social, economic and education conditions of India’s Muslims. The Sachar Committee, as it came to be known, submitted a report to Parliament in November 2006. The report said Muslims in India were even behind Scheduled Castes and Scheduled Tribes, and underscored the fact that Muslims were not adequately represented in the fields of politics, civil service, the military and the police. The committee’s recommendations included the establishment of an equal opportunities commission to consider minority communities’ complaints, and connecting madrassas to boards of higher education. 

Sachar remained an advocate for civil liberties well into his twilight years. In August 2011, at age 87, Sachar was detained for protesting against the detention of anti-corruption activist Anna Hazare and his associates under the imposition of Section 144 of the CrPC. “Anna and his supporters are not confrontationist, nor am I. It is the government which is being so by clamping down on peaceful protesters and arresting people,” he said. Sachar had backed a Lokpal Bill that placed the executive, the Prime Minister, and Parliament in its purview. In 2012, Sachar spoke at the launch of a campaign to collect a million signatures in a push against sedition laws. “It seems tragic that we should be asking the government to redeem the pledge of Nehru,” Sachar said. In 1951, Nehru said of the Indian Penal Code’s Section 124A, which outlaws efforts to “excite disaffection towards” the government, “the sooner we got rid of it the better”. Sachar said, “For having a democratic society, it is necessary that these laws go”. 
 

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Dalit protest in Gujarat; Photo credit: NDTV

The Gujarat government is set to table the Gujarat Protection of Internal Security Act (GPISA) in the upcoming budget session of the State Assembly. A bill, various versions of which have been sent back to the state assembly, is being pushed once again by the BJP-led government in Gujarat. Inspired by the MCOCA (Maharashtra Control of Organised Crime Act, 1999) the Gujarat assembly in 2003 attempted to draft the Gujarat Control of Terrorism and Organised Crime Bill (GCTCB) ostensibly to fight internal security. It has been sent to three sitting Presidents and returned each time on grounds of conflict with existing central acts on evidence, communication and national security. Now, it is set to appear with a new name and thrust as a question of national interest.

The bill was first drafted by Modi-led state government of Gujarat in 2003. It was sent back in 2004 by the then President APJ Abdul Kalam who demanded that the clause pertaining to telephonic interception of communication be removed as it violated citizens' right to privacy. The Gujarat government tweaked this clause and sent it to the next President Pratibha Patil. Once again, in 2008, President Patil also refused to ratify this bill citing conflict with the Indian Evidence Act, which does not recognize confessions before the police as valid in court. Accepting this clause would have meant opening up the scope for torture under police custody.

These clauses pertaining to internal security were seen as falling outside the purview of the state government and thus, under the Union government as per Article 245 and 246 as well as the VIIth Schedule of the Constitution.

In September 2015, the state legislature of Gujarat once again tried to send a slightly amended version of (GCTCB) and it was hoped that with the change in central government this would be ratified. But once it became clear that President Pranab Mukherjee would not ratify a law that allowed the police to arrest merely on the basis of suspicion, the home ministry withdrew the bill. The proposed law allows the Gujarat police to remain immune from prosecution on grounds of wrongful arrest, as it insists on the “protection of action taken in good faith”.

A state government with a history of violence targeted against the minority community, oppressed castes and marginalised people, where police officers have been charged with fake ‘encounters’ and then subsequently earned promotions and legal immunity, and where voices of dissent have been repeatedly crushed, is now attempting to ratify a law that can effectively suspend the rights of the citizens in the name of internal security.

The ministry of information and broadcasting also challenged the bill, citing the utilisation of law to intercept private communication, a provision that could be used to fabricate cases against political opponents. In January 2016, the bill was returned to the state assembly. Despite these repeated reversals, it appears that the BJP-dominated state assembly of Gujarat is determined to pass GPISA, which defines internal security as threats posed by “proxies of a hostile foreign power” within the state. Here, it becomes crucial to understand why such a law is deemed essential for ‘internal security’.

Cursory assessments of the clauses of GPISA are reminiscent of the debates that surrounded the MCOCA, an act passed in Maharashtra to address organised crime. Inspired by MCOCA, the GPISA goes a few steps further to empower the state police force by including “challenges posed by terrorism, insurgency, communalism and even caste based violence”.

This renders any and all criticism of the existing political dispensation, especially the growing rage of the minority communities and Dalits against an increasingly intolerant regime, criminal. The GPISA allows the Gujarat Police to nab any person(s) on the basis of suspicion of being a ‘threat to internal security’. This means that no prosecution is required against the person under suspicion as it empowers the police to define the basis of suspicion.

Under this Act, offences are punishable and would be cognisable, non-bailable, non-compoundable and can be tried by a Sessions court. Both public and private institutions fall under the purview of the GPISA and such institutions can be put under electronic surveillance. Evidence collected through the interception of wire, electronic or oral communications shall be admissible as evidence against the accused in court.

A contentious section of the bill states that confessions before police officers are admissible in court against the accused. The period of custody and for filing chargesheet in a case is extended from 90 days to 180 days. Punitive action extends from fines to imprisonment or both along with confiscation of property. This builds a veritable ground for police corruption wherein officials can extort opponents with a threat of being charged under this Act. Political opponents can be put under electronic surveillance; the police can set up security zones with special powers.

Furthermore, the government can take action against caste groups and communities for promoting ‘sectarian interests’. And remarkably, as per this bill, no legal action can be taken against the police and security agencies for wrongful arrest, as all action is deemed to be done in “good faith”, even if the arrested citizen is honourably acquitted after trial.

A state government with a history of violence targeted against the minority community, oppressed castes and marginalised people, where police officers have been charged with fake ‘encounters’ and then subsequently earned promotions and legal immunity, and where voices of dissent have been repeatedly crushed, is now attempting to ratify a law that can effectively suspend the rights of the citizens in the name of internal security.

Human rights organisations and activists have described the proposed law as ‘draconian’ and ‘unconstitutional’ as it takes away the right to express one’s views, builds an atmosphere of fear, and is bound to be misused, especially considering the partisan views of the existing government. Central ‘anti-terrorism’ laws or acts like Unlawful Activities (Prevention) Act or UAPA 1967 (especially after the substantive amendments made in 2012) and Prevention of Terrorism Act or POTA 2002 are already in place, and along with MCOCA, its efficacy has repeatedly come under question with regards to containing law and order, combating organised crime and fighting terror.

Instead of equipping the existing security forces with means of combating crime and terror, laws are being drafted that effectively curb human rights and civil liberties. Unsurprisingly, following the efforts of the Gujarat state assembly, other states like Madhya Pradesh and Karnataka have been pushing for such laws. Laws such as these, that propose to provide the police with unregulated powers of surveillance, arrest and even torture while letting them get away with it in the name of ‘good faith’, are inconsistent with the Constitution of India, and in some instances, they directly violate it – as in the case, with the GPISA, of the Property Act, Indian Evidences Act, CrPC and IPC. Such laws are bound to be used against the socially and economically weakest sections of society, and threaten to put in place a new method of state-sponsored extortion against every political adversary.

(Vidhya is part of the Editorial Collective at the Indian Cultural Forum).

This article was first published on India Cultural Forum.
 

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I am writing this historic letter to you. I am making you aware of what is happening in the country after analysing history and assessing historic truth as well as the current situation, and warning you…. I have come to make you sleepless…. The life subscription for the Parishad is Rs. 2,000. The life subscription for Vishwa Hindu Samachar is Rs. 600. Donate Rs. 15,000 (rupees fifteen thousand) for each family of those arrested. Give the traitorous Muslims a taste of patriotism by boycotting them socially and economically……Peace cannot be attained by begging: Crores of united and powerful Hindus will be able to establish peace and security in the country.

Such a stringent economic boycott will suffocate those elements and break their backs. Then it will be difficult for them to live in any corner of the country. Friends, start this boycott from today so that no Muslim will have the guts to lift his head before us and live. Have you read this newsletter? Then make 10 copies and distribute it amongst our brethren….
— A true Hindu patriot

“Yeh kaum saamne hove nahin; yeh kaum kabhi aage badhe nain; yeh poore setting ke saath hua hai kaam!”
(That this community should not be seen or heard, should never move up in life; plans were swiftly put into operation to realise this objective)

These words, spoken by Usmanbhai Malek from Por village in Gandhinagar district barely 45 minutes drive away from the epicentre of hatred in Gujarat –Ahmedabad — on March 25, 2003, seem to sum up the situation.  The cycle shop that he had run for decades, catering to Hindus and Muslims alike, was destroyed, as were the 80 homes belonging to 400 Muslims in the post-Godhra genocide on the night of February 27-28 2002. In the traumatic months that he and other refugees from this area spent at the Mandali camp, a Hindu cycle shop was swiftly installed in its place. Today the Patel dominated village has no more use for Malek’s services and he and all other Muslims who are not solely dependent on land, face crippling economic and social boycott.

This coupled with clear attempts to pressurise victim survivors into not fighting for justice, makes everyday life in Gujarat an appalling and frightening experience.

Muslim women from over 40 households who used to work as agricultural labourers are not entertained, and youth who drove transport vehicles have had their businesses taken over. Hunger and deprivation continues to hit the 400 Muslim residents of Por, with over 70 young persons out of jobs. The total strength of this Patel dominated village is 5,000, of which Muslims number 1,100. Women were also involved in milching cattle, an occupation that is today unavailable to them as they do not have access to buffaloes that were either stolen or driven away. The mosque in Por, which was systematically pulled down using a bulldozer belonging to the municipal corpration, has however been re-built. While some of the village elders such as Nathubhai Nagar are trying to break the social boycott, others  insist that for Muslims,  the quid pro quo for leading a normal life will be their withdrawal of the pending criminal case where 35 villagers have been accused of rioting and arson. With the survivors adamant on getting justice, (senior advocate Allah Rakha is appearing for the victims), the deadlock, stealthily, continues.

In Por, Kasimbhai has been unemployed for over a year, after he lost his tabela and five milch cattle in the pre-planned destruction. He incurred a loss of Rs 1.5 lakhs and is one of the rare victims who received the full Rs 50,000 promised as house compensation. Recently he has bought, on loan, two buffaloes from a relative and is attempting to eke out a living.

A similar situation prevails in many of the other villages of Gandhinagar rural district. In Adalaj, 25 homes were rebuilt and people have returned, without work however. Kunadasa and Koba have just one Muslim home each. Jametpura has 10-15 Muslim homes, and  residents of Khoraj  with 250 homes also face stringent boycott. In Khoraj, actually, the post-Godhra tension and violence was cleverly used to capture the kabrastan by force, that too, by the panchayat leader, Ganpatbhai Patel. He summoned terrified Muslims on the night of February 27-28, 2002 itself and told them directly that if they wished to live there in peace, they would have to hand over the graveyard land to the Patels because the land lies near their homes and “aakhon mein ata tha” (it offends our sight). If they did not agree it would be burnt down. Terrified, Muslims agreed and because they were given grazing land outside the village as a substitute, no case was filed.

One year after the gruesome genocide that shocked the nation, 10 of Gujarat’s 24 districts have achieved the VHP-BJP-BD aim, penned succinctly by Chinnubhai Patel in the pamphlet quoted above, which was distributed in hundreds of thousands. In most areas of Ahmedabad and Vadodara and villages of Gandhinagar, Vadodara rural, Anand, Panchmahal, Mehsana, Kheda and Dahod, insidious economic and social boycott  continues to cripple the Muslim minority that is still reeling from the effects of  last year’s brutal violence. It is only the villages and areas that have a sizeable Muslim population that has built up a steely resistance to the politics of hatred and division through the security of numbers — ghettoisation is the stark solution in post-carnage Gujarat.

Parts of hard core Ahmedabad are no better. While overt aggression and violence has subsided, and in many areas of business and enterprise a sharp cleavage may not be visible,  as Yakubbhai Shaikh of Karnavati Travels, a prosperous monopoly transport business puts it, “Dil khule nahin” (Hearts have not opened up). Despite the police having recorded a huge loss of Rs. 25 lakhs on his Hotel, there has been no compensation forthcoming except the minimal Rs 50,000. A long-time owner of the Karnavati Hotel at Vatwa GIDC, which was burnt down and has now been re-built, he painfully recalls how non-Muslims simply do not enter the premises anymore.

“My transport business is a monopoly business and I have a 16 year old relationship with factory owners so that side is okay. I still feel however, that if they had options, I would have been dumped as so many other have been.” He is hopeful however that the passage of time will heal the schism.

Divisive and corrosive sentiments in Ahmedabad run high and deep, Courts, hospitals, bastis —none seem immune. A week ago, a well-placed advocate in the Gujarat High Court (name witheld) was shocked when he could get no doctors to examine and attend to one of the 6 accused, allegedly held for a plot to kill chief minister Narendra Modi. There is scant proof of the charges levelled against the hapless accused but when one of them fell ill, doctors he contacted simply refused to see him because one, he was Muslim and two he was an accused! So much for fair trial and justice.

In another bizarre incident some months ago, a senior advocate of the Gujarat bar quietly told his junior, a Muslim, to stop attending his chambers. While no pointed reasons were given, the generally held belief among senior members of the bar is that it was the identity of the lawyer that had guided the decision.

Naroda Gaon and Patiya will be remembered for the planned and bloody decimation of over 110 innnocents, in cold blood, led by elected representatives. The changes to these mass crimes have not yet been framed. Instead of honest and fair investigations, trumped-up charges on an FIR (No. 101/2002) filed by ASI Satuji Shivaji, which did not then name the accused, has, on August 5, 2002, falsely named and led to the arrest of one Bismillah Khan Pathan and 11 others. These 12 are believed to be eye-witnesses to MLA Dr. Maya Kotdani and Gujarat VHP general secretary, Dr. Jaideep Patel’s direct participation in the violence. It is only recently that six of them  obtained bail. What is more shocking is that none of the persons who were listed in these complaints, especially the leaders of the organisations, have been arrested, no identification parade held and no action whatsoever been taken against the police officers, despite repeated allegations and complaints of police complicity.

 Several testimonies and sworn affidavits before the Shah-Nanavati Commission reveal that witnesses have identified, by name, Guddu Chhara, Suresh Chhara, Jai Bhavani Singh as accused in heinous crimes of sexual violence and rape. Yet these men roam scot-free, as do the instigators who are men and women with clout and power. Today their freedom is a daily taunt to the survivors at Naroda Gaon and Patiya, and it makes a mockery of the process of justice in this country.
 This and most of the other   Ahmedabad cases are yet to begin, and no charges have been framed by the Sessions Court so far.

Though over 110 persons were quartered and killed at Naroda Gaon and Patiya, few bodies were recovered. Before the violence, there were 825 houses at Naroda Patiya. Only 400 homes have been repaired, and in which families have returned to live. Forty-five families from here now have homes in Vatwa, while 16 homes for widows and another 25 homes were built by the Citizens Relief Services (management of Shah-e-Alam camp) around Narol-Bombay Hotel. This makes a total of 486 families. Another  140 families who  could afford it resettled elsewhere. This makes a total of 626 families within Ahmedabad. A total of 199 families from Patiya have fled. The homes are in the same state as they were after the violence erupted. Forty-five widows here receive monthly aid. But the rest of the families, who used to work as rickshaw drivers and pullers and daily wage earners are without work, on the verge of starvation. The children cannot go to school. In all, before the violence there were 445 families at Naroda Patiya, working in nearby factories. For four-six  months they lived in camps. They were replaced at work, both men and women. Today they are all unemployed because their jobs have been filled. If they get work at all, they are paid half the daily rate. This may not be called a direct boycott but it is nevertheless a fall out of the violence. Men used to be paid Rs. 100-150 a day, working in small-scale units making plastic items, while women were paid Rs. 50. Today, if and when they get work, it is at half the amount.

But it is the raw humiliation of knowing that those guilty of unspeakable humiliations and violence roam free and taunt them that makes daily life unbearable. Fatimabi, a victim survivor who lost eight family members in the massacre, has three girls of marriageable age. She used to run a flour mill. “Earlier I used to earn Rs. 400 per day, and after paying the electricity  bill used to have Rs. 350 left over. Today, there are no Muslims to give me custom and the Hindus who used to come earlier have stopped coming to my chakki. How do I survive?”

“Ham majboori mein reh rahe hai, we have to because we have homes here. Where else can we stay? We are terrified. Every 15 days or two months when there is tension, we flee our homes. Is this living?” she asks. The last time they fled was about a fortnight ago, after Haren Pandya was killed. “Yeh koi zindagi nahin hui..this is no life..my young girls, they are taunted at by the same —s who performed those acts on so many girls and women..they roam scot- free. Guddu Chhara, Suresh Chhara, Bhavani Chhara..They taunt us that ‘we will rape you.’ We want justice,” she says, “even if we remain hungry…Roti mil jati hai; lootne ke baad aadha pet se bhi aadmi ji sakyta hai.” Hame sirf insaaf chahiye.” (Food we can get; someone who has been looted of all their worldly belongings can live with hunger. But we want justice.)
 

Legal Status
Ahmedabad

• Out of 961 registeread cases, 447 cases are being consigned away as “A” or “B” final summary.
• In sector–I, out of 15 police stations, there are 496 cases registered. Out of these, 200 cases are being consigned away as “A” or “B” summary (registered complaints are wrong or accused are not available). In 293 cases, inquiry has been completed and in 3 cases inquiry is still going on.
• In the same way, in sector–II, out of 15 police stations, there are 465 cases registered. Out of these, 214 are being consigned  away as “A” or “B” summary (in 80% cases “A” summary and in rest “B” summary), in 215 cases inquiry has been completed and in 36 cases inquiry is still going on.

Gauri Beevi Mohammed Qureshi has stated in her complaint that on February 28, 2002, the police were present but did not do anything to stop the mobs. On the contrary, the police fired at the victims, and, in this firing, the husband of Ayesha Beevi one Abidbhai Pathan and Shabnam Beevi Sheikh were killed. A number of shops were looted, houses were burnt with kerosene, petrol and gas cylinders. The police were present during this entire episode and when victims approached them, the police asked them to run away elsewhere.

KK Mysorewalla PSI has been quoted in testimonies (see Gujarat genocoide 2002) as telling victims who appealed for help that, “Today your time has come. We have been told not to help. There are orders from the top.”  In an affidavit sworn before the Shah-Nanavti Commission of Inquiry, Mohammed Iqbal, a labourer residing at Naroda Patiya,  affirms that he was eye-witness to MLA Maya Kotdani, along with others whom he identified, indulging in attacks and arson. “My family and I attempted to escape to save our lives and at that time I saw Mayaben Kotdani, Bipin Singh and some members of the VHP and Bajrang Dal. They attacked and looted my house and injured my family.”

A similar refusal by the state of Gujarat to push the justice process marks the proceedings of the trial in the Gulberg society case. The ghastly massacre of former MP, Ehsan Jafri and at least 70 others at the Gulberg society, Chamanpura on February 28, 2002, shook the conscience of the nation. Two FIRs were filed by the Inspector Erda of the Meghaninagar police station. Even now, more than a year later, the trial of the above case has not  begun. The ‘charge’ is yet to be framed.  Moreover, 18 eye-witnesses to the crime, have petitioned the trial court hearing the case in a special application, and accompanied by affidavits sworn on oath, detailing the blatant attempts to subvert the investigations. Investigations were undertaken without the preliminary and necessary legal practice of recording statements of eye–witnesses.

The charge-sheets were filed by the Gujarat police in November 2002, but the charge-sheets have excluded the names of key accused named in the FIR – Ramesh Pandey, Choti, Rajesh Dayaram Jinger, Bharat, Kali, Dilip, Gabbar, Kapil Munnabhai, Bharat Kali Mansingh, Prabhudas Jain.  Witnesses petitioned the Commissioner of Police, Ahmedabad, Kaushik on November 25, 2002, pointing out this discrepancy, to no avail. This amounts to the investigating agency protecting the accused..

Eye-witnesses to the quartering, slaughter and burning alive of Mr. Jaffri have testified on oath to the fact that Police Commissioner PC Pandey visited the colony at 10.30 a.m. when the Gulberg society had been under seige by a carefully orchestrated mob of thousands since 7.30 a.m. on the fateful day of February 28, 2002. The NHRC, in its confidential report on Gujarat, has stated,“Representatives of many NGOs and some prominent citizens narrated a number of cases where they contacted the police and requested them to rescue the members of the minority community under attack from the marauding mobs but their pleas evoked no response. Shri Amar Sinh Chaudhry, former Chief Minister, Gujarat narrated to the team his futile efforts in seeking police help for Shri Ahsan Jaffery, former MP. He claimed to have personally contacted the Police Commissioner, P.C.Pandey, at 10.30 A.M. on 28 February and apprised him of the imminent danger to the life of Shri Jaffrey. The Police Commissioner assured him that police assist-ance will be dispatched rapidly. He reminded him again after receiving another frantic call from Ahsan Jaffery that no police reinforcement had reached his place and that the few policemen present were ineffective and unwilling to control the violent mob. Shri Chaudhry said that he also spoke to the CM Narendra Modi in the afternoon and found him well informed about the presence of a violent crowd outside Shri Jaffrey’s house. He also spoke to the Chief Secretary and Home Secretary between 12.30 and 2.00 P.M. Shri Jaffery was burnt alive along with his family and 39 others (total killed–50).”

Trade uionist and advocate Amrish Patel, secretary of the Gujarat Mazdoor Sabha, has recently taken up 16 cases of Muslims from Ahmedabad summarily dismissed from their workplace after 10-20 years of service on grounds of identity. He will be challenging their dismissal under section 25(1) of the Industrial Disputes Act and also on grounds of social boycott. Of the 16 victimised employees, some were small dealers, three worked as watchmen and three as clerks in small businesses. This is probably for the first time that labour laws will be used to challenge the social and economic boycott of a community.

Similarly in Vadodara, over 17 persons were dismissed from the Gujarat Electricity Board following anonymous complaints on their character being received by the authorities. All of them are Muslim.

In the Savli taluka of Vadodara rural, that has 252 villages,, Muslims live in Manjusar, Tundav*, Paladhi, Lasundhra, Gothdra*, Savli*Karchia*, Vakaner*, Ranier, Devnagar, Mokshi, Bhadarva, Desar, Pandu*Dhantej*, Vaccheshwar* (*Muslims majority). Traditionally Savli was a Congress bastion; this election brought the BJP to power. The shift has also meant a distinct shift in the atmosphere with Muslims suffering discrimination and boycott. The local police is also extremely partisan. In Bhadarva, the local Masjid pulled down with a bulldozer, was not repaired, In Sokhda, the  BJP man won seats after garnering Muslim votes in a ‘compromise’ offer for their safety therafter. Dilip (Dilavar) Dadhi, a Gharasia who had run a camp for 600 refugees until May 2002 was the chief negotiator for the Muslims.The dargah at Samliah, in Savli taluka, Vadodara remains destroyed and damaged with no repairs, one year later.

At Manjusar, 3 km from Tundva (18 km from Vadodara), also in Savli taluka, Shailesh Patel, who is the VHP president of Savli taluka unit, has his wife, Mrs. Meenabehn as the taluka panchayat member of the BJP. Shailesh’s friend, Raju Sanabhai Patel (Maya Traders), has a hooch and petrol business, and the violence was led by him. Both Shailesh and Raju had gone to Ayodhya by bus; the bus returned on March 1. Three police officials here, circle police Inspector  Katara, deputy sup. of police DN Patel (allegedly responsible for most of the atrocities against Muslims), and Tundav head constable (jamadar) Pardhi, have and continue to display a strong anti-Muslim bias. Victims stated that they sit at Maya Traders and make programmes of how “Mussalmanon ko kaisa “fit” karte hain.” (How we can fix the Muslims). The atmosphere as one drives through the villages of Vadodara rural, many of which cultivate the best quality tobacco in the country is infected by terror and suspicion.

Godhra epitomises the deep divide that prevails in the Panchmahal district of Gujarat. Villagers who returned to Pandharwada village where over 70 innocents were brutally killed, continue to eke out a minimum existence, living in terror.
The manner in which the criminal trial into the Godhra mass arson is being handled raises serious questions.  Fifty-eight Kar Savaks were burnt alive in the S 6 coach of the Sabarmati Express. That the Godhara tragedy reflected abysmal failure of State intelligence, both before and after the incident is a fact that has been stated before. The unprofessional manner in which the trial has been conducted can be judged from the proceedings. The state has arreste 71 persons who have been detained allegedly violating due process of law since they have not appeared in court since last June 2002, after their arrests.

POTA has been invoked post-facto in the Godhra case, indicating malafide intent and violating the provisions of the act itself. The Ahmedabad based government Forensic Science Laboratory report has interesting findings about the mystery of the fire, that should  warrant neutral investigations but these findings are not being taken into consideration at all.

Serum has been injected into 5 accused before questions were put to them last May 2002, in gross violations of human rights laws and international regulations.

The affidavits of six relatives, including the wife of Maulana Umerji, filed before the Supreme Court in late March 03 (in the petition filed by eminent citizens and supported by the Citizens for Justice and Peace, Mumbai urging transfer of investigations to the CBI) reveal how the due process of law has been subverted in the Godhra trial. They have appealed that in the course of the investigations fair and due process of law is not being followed, that their relatives have been wrongfully confined and illegally detained, to no avail, and therefore, the apex Court should intervene. There is a real possibility that,  in the Godhra trial, innocents will be punished and those guilty of this heinous crime will escape unpunished.
The affidavits filed by the relative of six, allegedly illegal detainees reveal:

1) The wife of Inayat Abdus Sattar Jujhara, a government servant, who was arrested for alleged involvement in the Godhra arson states that his office records show that between 11 –1 a.m on February 27, 2002 he was working at  Panan Jara Sarai Yojana, a ward of the education department of the Gujarat government. Yet, the police have stated in their statement that they have arrested him at 9 a.m.on that day when government records show to the contrary. He was wrongfully arrested and therefore his arrest was malafide.

His past record in government service has been good and he has no criminal record. Given the injustice of his arrest, she approached the Honorable trial court in an application for fair trial, yet there was no redressal.

2)The father of Ishaq Mohammad Mamdoo has also testified on oath that his son Ishaq Mohammad Mamdoo who is totally (100 per cent) blind has been wrongfully confined and named as accused in the Godhra arson. He is 24 years old and had even applied for government aid in 1997 claiming 100 per cent blindness. How could he have had any part in the crime? Due to the anguish caused to the family by the shameful detention of their visually handicapped son, his mother died out of sorrow two months ago. Their whole family has been ripped apart by the unfairness of the trial that has left them little faith in justice.

 3) The mother of Abdul Razzak, states that her son, a prominent businessman of Godhra was illegally detained for a whole year, suffering loss in personal reputation and business for alleged involvement in the arson.  She made an application to the trial court for proper investigation. Yet the court did not act. The family was kept in anguish for a whole year, her son was kept in a place they did not know, taken 156 km away to high security prisons. Shockingly, her son was also injected with serum for questioning that dulled his mind.
 

Justice Denied

Best Bakery Incident, Vadodara City
On March 1,2003 at 8.30 p.m. a mob of 200-300 people looted the Best Bakery,  set fire tao the room. A family of 5 people was burnt alive, 3 workers were hacked to death, 16 people were attacked and 4 workers injured. The incident took place after the staff from the local police Panigate police station drove by. Zahira, a victim and an eye-witness, was made to give her statement 3 times, and sign it, but the statement was not read out to her nor was she allowed to read it. Police did not come for over an hour even after being repeatedly called. The NHRC has recommended that this case requires to be investigated by CBI. The chargesheet has been filed but the trial is yet to begin.

Abasana Trial
The trial is on and victims have approached the Supreme Court for cancellation of bail after the Gujarat High Court granted bail to 29 of the 33 accused.
The criminal  trials at Ghodasar, Kheda, Kalol and Sardarpur Mehsana are underway.            

 4)  The wife and brother of of Abdur Rehman Yusuf Dhantiya have also stated that he has been illegally detained in connection with the Godhra arson when he was not even in Godhra at the time. He was in Bhudaaya, 7 kilometres away at a flour mill at the GIDC there. The person falsely accused was, it is their contention, helping to put out the fire.  Yet a man who was helping the police with water to douse the fire has been illegally detained and this shows malafide intent of the authorities. Due to this, they even approached the trial court urging for proper investigation.

5)  The allegedly illegal detention of Maulana Umerji is also a case in point. The accused, a religious preacher with a strong social conscience, has been illegally detained since February 6, 2003 and denied basic rights as a prisoner. His health, which is very frail, is faulty, he has been refused even a walking stick.

His record, during the past communal disturbances of Godhra,  in 1965, 1969, 1980 and 1989, when he helped the authorities to maintain peace by being active part of a peace committee are well known. Local DMs, DSPs and government officials have appreciated his role at times of conflict.

Mehsana is another district still reeling under the politics of the sangh parivar. While Muslims of Dasaj town have managed to carve out a secure corner for themselves —Dasaj proved a challenge to the BJP-VHP onslaught from over 45 villages last year when they held out against the onslaught led by MLA Naran Laloo Patel and others and moreover also gave shelter to refugees from nearby villages.

Says, advocate Yunusbhai Khan Faridkhan Pathan “ Position theek hai” The position is alright as far as survival goes. People living in Dasaj, about  1000-1200 of the total population of 5,500 have been left alone because we had put up a resistance…But the economic boycott is strong. They don’t let us buy from their shops; kheto mein kaam nahin karne dete. (They don’t let us work in their farms) Kaam aur roji roti cheen liya hai.(They have snatched away our daily earning)  As many as 50-60 labourers are jobless.Whatever we have is land, which is badly affected by drought this year.”

Residents in and around Dasaj  cannot even step into Patel areas of Dasaj town, nor work in their fields. The worst impact is the denial of access to shops with basic commodities —electric/cement/milk/vegetables/medical. The shops are all located on ‘their’ (Patel) side and they simply do not let the Muslim residents use them.

Says Pathan, “Even for medicines we have to go 16 km away to a town like like Sidhpur where the local situation is better. In Dasaj the boycott is very strong. The medical shop belongs to a Prajapati  and we are not allowed to go there. Dr. Narottambhai Patel, refuses to even treat us whereas one other Patel, Dr. Laksmanbhai Patel does come to our areas to give us treatment; Narottambhai follows the pratibandh (boycott).” As a result of this sustained and successful denial of access to basic amenities, Muslims have now set up their own rented vegetable outlet and shop for groceries.  They have also made arrangements for a Muslim khalifa (barber) since the Hindu one does not or cannot meet their requirements and a Muslim dhobi too, has been brought to Dasaj for its residents.

In the land of Gandhi, his bitter detractors have managed to sow deep distrust and division.

Schooling remains a critical problem for the residents of Dasaj because, again, the school for Stds IV-X, to which about 70 Muslim children need to go, is located in a Patel mohalla. The school for the little ones is regarded as relatively safe as it is at Char Rasta, Indira Nagar, a mixed mohalla, which is not such a frightening prospect.

Elderly residents from Dasaj including chacha Hatikhan Hayat Khan Pathan ex-sarpanch of the town, who had testified before a national audience in April last year and even met the then President, KR Narayanan, is bitter and sad. “Bahishkar chaloo hai… Dil toot gaye; Allah ke madat se Dasaj bach gaya. (The boycott is on. Hearts have been broken. Due to the will of god, Dasaj was saved.)The main aim was to destroy the Muslims of Dasaj who, living in 150 homes, faced an attack of huge mobs from 45 villages. “They did not succeed but we still suffer.”

Of the other towns in Mehsana district, Siddhpur and Mehsana itself are  manageable. Businesses on the highway, too, continue.

But Unjha, a huge agricultural market, has been purged of Muslims.There was unmentionable violence and marginalisation; so no one returned. The land on which the Mosque and Madrassa stood—that were destroyed by a bulldozer—is today still in the possession of the collector. Earlier, 100 persons from Dasaj would go to earn their living at Unjha, in different businesses. “This is out of the question now…who knows whether we will come back?”

Kadih is another economic centre where some business and earnings for the minority have been possible.  The former MLA and minister Niteen Patel who led the violence lost in the elections and has been replaced by a candidate from the Thakore community who has helped to restore a semblance of normalcy.

In Umta gaon, in Mehsana, where KPS Gill himself had started a rehabilitation programme, though 225 homes were built, a bitter boycott against the minorities continues. “Intermingling has stopped,” says one resident afraid of revealing his identity. “Earlier businesses ran on the barter principle; sharing of resources. Now none of that is possible. Even our barbers are separate. Bahut gandha hua.”(It is a terrible development).

No Muslims reside in Maktoopur anymore;  25 homes were destroyed and former residents are now settled in Sidhpur and Mehsana. Here, too, the Mosque was destroyed and the private land on which they stood is today being held by the collector.

Similarly, there are no Muslims left in Pilodra village though the Mosque still stands here. In  Kuwasna, Muslim residents have been unable to return because the local sarpanch is trying to bullying them into assuring the other villagers that they will return but not worship audibly. “Azaan nahin dena” (Do not give the call to prayer.)

Visnagar in Mehsana saw two major carnages were over 20 people were slaughtered brutally. None have returned to live in the Dipla Darwaza area, which is in the mdst of the Patel locality, and where severe betrayal was experienced as residents had been assured of their safety by their neighbours before they were attacked. In Pathan mohalla 13/14 families have gone back to live.

Similarly, in Sardarpur, where there was another brutal carnage,  about one and a half months back some Muslims have returned. They have no desire to stay there however. “It is a matter of months or a year. We are simply waiting for a decent price for our land and we will sell. There can be no question of living there, with those memories any more.”

Says Shahabuddin Nizamuddin Kazi, an employee of the State Transport corporation, who took three months leave to run a camp for 1,000 destitute refugees, speaks of the terrible situation at Chansama in Mehsana where there used to be 110 Muslim homes. “There is not a trace of them now. They have fled to Patan, 17 kilometres away. The land lies without owners, it is a matter of time. The homes, devastated, stand as painful relics. The entire topography of many of our villages has changed, been wiped out in front of our eyes.”

Amen.           

Archived from Communalism Combat, April 2003 Year 9  No. 86, Cover Story 1

The post Gujarat – One year later appeared first on SabrangIndia.

 

The all-out assault on secularism is not merely against tolerance; it is against democracy itself and the very basis of a pluralist India. As before, a two- nation theory will only lead to Partition, or as Yugoslavia and the USSR have shown, to Balkanisation

Independent India was born in the fires of communalism, through the genocidal carnage of the Partition. In the desperate contest between the secularists led by the Congress under the Mahatma and Nehru, and the communalists abetted by the British and led on the one side by the Muslim League and on the other by the Hindu Mahasabha–RSS, the latter won. The periodic and increasingly menacing communal violence that has occurred since then is symptomatic of the unfinished secular agenda.

Those who fondly imagined that the bloodletting that followed the Babri Masjid demolition, particularly in Bombay and Surat, would be checked by the moderate and statesman–like Vajpayee leading an NDA coalition that included secular parties, were in for a rude shock, especially after the genocide in Gujarat by the RSS–appointed Narendra Modi’s government in February–March 2002. The BJP’s current moves to vacate the Supreme Court stay on religious ceremonies near the Babri Masjid site, and the proposed bill to ban cow slaughter, starkly highlight that secularism is under assault as never before.

A major reason this assault has progressed so far has been because of the assiduously spread myths and falsehoods about what secularism, democracy, the Indian nation and culture are. The core and co-ordinating body behind this Hindutva attack, the RSS, has its own Western roots. The Italian researcher Marzia Casolari has exposed the RSS links, after it was set up in 1925 with the Italian fascist party led by Mussolini. RSS sarsanghchalak MS ‘Guru’ Golwalkar’s admiration for Hitler is well known. Many of the core concepts of Hindutva are Indianised versions of Italian and German fascism. Swadeshi versions some might say.

For example, the sangh brigade has argued that since India is very largely Hindu, it is a Hindu Rashtra or nation. This is similar to Hitler’s concept of the German ‘herrenvolk’ or pure Aryan community. The sanghis argue that the Aryans, contrary to all historical evidence, were indigenous people and the forebears of a Hindu race. All minorities, esp. the Muslims and Christians (but the Sikhs and Jains are not so stridently included as they are considered part of the Hindu family), are considered illegitimate converts by force and fraud by Muslim and British rulers.

The attack on the Babri Masjid (a misnomer as Babar never visited Ayodhya) was part of the sangh purification (sudhikaran) of history, and righting of mythical historical wrongs by the Muslims. Babar and ‘Babar ke aulad’ demolished Ramajanmabhoomi, and so the sangh brigade had to repay the Muslims in the same medieval coin. And today, Vajpayee talks of historical proof that the Rama temple existed there, despite the evidence given by renowned archaeologists like D. Mandal, and eminent historians like RS Sharma, Romila Thapar et al. Despite the fact that in Ayodhya there already exist several Rama temples, for the sangh brigade desperate to remain in the seat of power, Lord Rama also has an accommodation problem.

Many of us forget that India was the birthplace of Gautama Buddha, and that the very influential emperor Asoka was his disciple. The Asoka chakra is at the centre of the Indian national flag. What happened to all the Buddhists in the land of the Buddha? They were forcibly converted to Hinduism by the Brahmins and their followers. Buddhist shrines and monasteries were despoiled and turned into Hindu sites. Thus the Bodh Gaya temple today in Bihar is managed by both Buddhists and Hindus. The sacred Boddhisatva tree nearby, where Buddha attained enlightenment, was chopped down by a Hindu fanatic centuries ago.

No one, including the Buddhists, talk of this now. So forcible conversion and the demolition and co-optation of religious shrines are nothing new, and the Brahmin–led Hindus because they were the most powerful, were the biggest offenders. This was pre–eminently not a matter of religion, but of political power, as indeed Hindutva is.

At the core of this history of hate is the communal project that argues, as the fascists did, that the Hindus are a homogeneous community, with little difference, and no pluralism. Thus the term ‘majority community’. This community is seen as having objective contradictions and differences with the minorities, the ‘other.’ But aren’t Hindus divided by class, caste, gender, region, language, etc.? Aren’t the Tamils and Kannadigas feuding over the Cauvery river waters mostly Hindus? Is SM Krishna who tried to side-track Supreme Court orders on this issue less of a Hindu than Ms. Jayalalitha?

Are those for and against affirmative action including the Mandal Commission recommendations less Hindu than the others? There are also Hindus on both sides of the bitter dispute on the Women’s Reservation Bill. Such examples can be multiplied. Clearly Hindus never were and never can be homogenous. Similarly, Muslims and other minorities are also not homogenous. For example, Muslims who claim to have descended from upper castes or more lofty ancestors like the Sayyids, Ashrafs, Khans do not normally marry the comparatively lower caste Ansaris and Qureshis. In Kerala, the Syrian Orthodox Christians do not normally marry the Latin Christians or frequent the same church. Thus there is no homogenous ‘majority’ community or its counterpart ‘minority’ communities.

The assault on secularism is also based on a crucial misrepresentation of democracy. The sangh argument is that democracy means majority rule, and since Hindus are a majority, Indian democracy must be Hindu, and what for them is the same thing, Hindutva rule. But this is another distortion. Democracy is not simply majority rule. Liberal democratic theory holds that all majorities are temporary. Take elections. Yesterday a party/coalition e.g., the BJP–Shiv Sena in Maharashtra, was in power. Today another party/coalition, e.g. the Congress–NCP is in power. The leadership/membership of both is predominantly Hindu.

If one makes the trivial statistical point that in either case Hindus are in the ‘majority,’ the concomitant confession will have to be that Hindus are different: they vote and act differently. That further proves they are not a homogenous community. Further, in the ‘first past the post’ electoral system, Narendra Modi’s sweeping electoral victory in Gujarat, like Mrs. Indira Gandhi’s famous Lok Sabha victory in 1971, was based on a minority vote, less than 50 per cent. Very few Indian political formations have got more than 50 per cent votes, and they have never consecutively repeated the performance. Moreover, democracies must guarantee minority rights.

That leads us to the next anti-secular canard of minority appeasement. For example, the sanghis argue, that Article 30 of the Fundamental Rights, which allows minorities to run their own educational institutions, has resulted in the proliferation of madrassas that are spreading Muslim fanaticism if not terrorism. This they say is minorityism, against democratic majoritarianism (that we have already refuted). In the first place, there are enough criminal laws in place in the IPC and CrPC to counter this, apart from the extraordinary anti–terrorist laws like NSA, Armed Forces Special Powers Act and POTA. No minority institution is above the law. But the question that arises is what about the ‘majority’ RSS–controlled Saraswati Shishu Mandirs, Vanvasi Kalyan Kendras and the like? Don’t these spread Hindu fanaticism? And don’t these fuel genocidal terrorism as in Gujarat and elsewhere? Behind the rhetorical façade it appears that ‘majority’ fanaticism is seen as patriotism, but ‘minority’ conservatism as ‘jehadi terrorism.’

Similar is the argument that subsidies to the Haj pilgrimage are minority appeasement. If subsidies for the restoration/rebuilding of Hindu shrines and pilgrimages and the Kumbh Mela are acceptable, then why not this? But there is a more profound objection. If secularism is about the separation of religion and politics, why is the state subsidising religion? We must distinguish between the state being partisan between religions, funding religions per se, and subsidising a few religious activities. In such a stratified and largely poor society, where religion not only for the pious, but even for the atheistic, is an integral part of culture, limited state subsidies cannot be simply decried as anti–secular, as favouring either Hindu or Muslim. In any case, quite contrary to the Hindutva argument, Hindus have got more subsidies than the minorities.

Today, the latest furore is over cow slaughter instigated by the Congress CM of MP, Digvijay Singh. Facing an election later in the year, the two term CM sought to beat the BJP at its own game like other Congress leaders before him, and raised the issue of cow slaughter, accusing the BJP of being insincere in this objective. The local youth Congress even printed posters accusing Vajpayee of being a ‘beef eater.’ In the first place, eating habits have nothing to do with nationalism or democracy. Secondly, many lower caste Hindus as well as Hindus in eastern, north–eastern and southern India, apart from the minorities, eat beef. Thirdly, Article 48 of the Directive Principles, which unlike Fundamental Rights are not judicially enforceable, does not focus exclusively on the prohibition of cow slaughter. It concerns the scientific organisation of animal husbandry and enjoins on the state to preserve and improve on all existing indigenous breeds, and prohibits the slaughter not only of cows, but of all "draught and milch cattle." In other words, under this Directive Principle, all draught and milch cattle including cows, buffaloes, yaks, mithuns, should not be slaughtered.

So why this Brahminical insistence only on cows? The comprehensive prohibition in Article 48 is just not enforceable. Hindus, especially lower caste and poor, widely eat buffalo meat, and where they can get it, beef, as in Kerala, West Bengal and the north east. In any case there are other Directive Principles such as Article 41 which includes the right to work, Article 39 for an equitable distribution of wealth, etc. that no one talks of today. Is cow slaughter more important than all this?

It is clear that the current assault on secularism is motivated, aimed at establishing a pseudo–theocratic, authoritarian polity in which the BJP can secure its rule forever. Where progressively the sansad (Parliament) will be substituted by a dharma sansad of self–appointed ‘sants’ acceptable to the sangh brigade and the political opposition be booked under POTA.

The all–out assault on secularism is not merely against tolerance; it is against democracy itself and the very basis of a pluralist India. As before, a two–nation theory will only lead to Partition, or as Yugoslavia and the USSR have shown, to Balkanisation. 

Archived from Communalism Combat, February 2003 Year 9  No. 84, Cover Story 5

The post Secularism Under Siege appeared first on SabrangIndia.

Indian Parliament is on the  verge of passing a freshly  drafted, preventive detention leg islation, the Criminal Law 
Amendment Bill, 1998 (CLA) that is a brazen measure aimed at stifling democratic dissent and which, moreover exposes a sinister motive of incorporating a preventive detention law permanently within the criminal law statute.

Inherent to all preventive detention laws are severe curtailments of basic rights of the citizen, rights related to grounds for arrest, detention, fair trial and other crucial checks and balances on a law and order machinery that, with arbitrary power under law, could well misuse these against the detainee.

The present Bill was introduced by the ministry of home affairs under Congress rule in May 1995. The draft of the new legislation proposed then to replace TADA after toning down some of the harsher provisions contained within TADA. The government proposed to rush it through with open support of the Bharatiya Janata Party (BJP) but this attempt was stalled. A working paper circulated by the Law Commission in early 2000 with the revised draft, the CLA, 1998 reveals that the proposed law is a replica of TADA, with some additional draconian features brought back in. Following highly critical feedback on the new Bill, the Law Commission,  is currently working on a revision of the working paper that is likely to be ready in April 2000.

The working paper of 1999 reveals a narrow and partisan view of the political situation in the country and our recent political history. The section Security Situation in the Country  contains statistics and other data concerned with acts of violence in Jammu and Kashmir, Punjab and the North-East. The Religious Fundamentalist Militancy section mentions that Muslim militancy increased after the bomb blasts in Mumbai, but there is no mention at all of the events before and on December 6, 1992 and the nationwide holocaust that followed.

In 1985 the following clauses contained within TADA were removed from the new Bill. They now re-appear in the CLA Bill of 1998.

Ø The pernicious clause (section 15) which made confessions before police officers admissible as evidence was deleted

Ø The right of appeal to the High Court (and not only to the Supreme Court was restored

Ø Restrictions on the right to bail were removed following judicial direction in Hitendra Thakur v/s State judgement, SC 255.

Ø Section 5 of TADA that had been incorporated into the new Bill, the section pertaining to the mere possession of arms in a notified area constituting an offence was also removed. This followed the SC judgement in the Sanjay Dutt  v/s State through CBI (1994 5SCC 410). This section is now back.

Ø Section 22 of TADA, 1987, also incorporated in the new Bill, which substituted a test identification parade with photo identification was deleted. This provision in TADA had also been held by the SC to be illegal in Kartar Singh. It is now back.

The new Bill sets dangerous precedents in the already black history of preventive detention in India

Ø TADA had to be specially notified in areas that were deemed to be fit for the operation of such a law, the CLA will automatically operate throughout the length and breadth of the country.

Ø The proposed CLA Bill, 1998 will remain in force for five full years. The Law Commission is of the opinion that India requires a permanent anti-terrorist law in view of the alarming  proportions that terrorism has acquired over the past few years.

Ø Modeled on UK and US Anti-Terrorism legislation, a factor that the government is using as justification, the CLA, 1998 omits critical features of accountability contained in the originator legislations. In those countries, government is bound to present annual details of arrests and convictions on the floor of Parliament to ensure a measure of accountability. No such measure of government accountability is contained here.

Ø In the wake of the bomb blasts in Coimbatore in February 1998 (that incidentally also followed three months after brutal bloodletting against the city’s Muslims in November 1997, the Tamil Nadu government enacted the Prevention of Terrorist Activities Act (POTA) which was only recently repealed due to sustained campaigns in that state. In early 1999, the Maharashtra government brought in the Control of Organised Crime Act, 1999 which also contains the most draconian provisions of TADA.  In such a situation, what will the combined effect of a surfeit of preventive detention be except to unlawfully and unconstitutionally vest more and more arbitrary powers with the police?

Ø Article 4 of the International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory since 1979, permits states to derogate from certain sections when there is a ‘public emergency that threatens the life of the nation,’ and only ‘to the extent strictly required by the exigencies of the situation.’ This qualification makes it difficult to justify the application of CLA indiscriminately to all parts of the country.

India has a abysmal record of blatant human rights violations that include systematic encounter killings by the law and order machinery or security forces (note the senseless killings of four innocent Kashmiri Muslims near the Zontangri peak to ‘avenge’ the massacre of 35 Sikhs allegedly by foreign militants at Chitti Singhpora on March 20 by the Indian army and the police), a pathetic record of deaths and brutal torture in custody and a non-existent adherence to basic criminal law procedures in matters of arrest, detention and questioning. A new law that grants further immunity to the Indian state and the police from checks and balances from arbitrary misuse, is to put it mildly, ominous.

We are also a state with the longest history of preventive detention since our Independence barring the three-year period between 1977-1980. The worst human rights record was during decade-long existence of the Terrorist and Disputed Activities (Prevention) Act, 1987, the legislation first introduced in 1985 in the wake of Operation Bluestar in the Punjab and prime minister Indira Gandhi’s assassination and thereafter extended for a two year period until it was finally repealed on May 23, 1995. The repeal of TADA followed burgeoning protests from the human rights’ movement all over the country. 

Justice Ranganath Mishra, then chairperson of the National Human Rights Commission had publicly stated that the act had ‘been prima facie abused in Gujarat.’ He convened a meeting on August 22, 1993, at which several chief secretaries and home secretaries of states were present, to push for the review of its application. 

The official admission of allegations of misuse of TADA is evident from a letter by former union home minister, S.B.Chavan, dated July 27,1994 to the chief ministers of all states where TADA was applicable. The letter emphasised that TADA should not be used against political opponents, trade union leaders, journalists, former judges and civil servants. The very need for such a letter is evidence that such abuse of the law had been taking place.

The statement of objectives of the Act specified that TADA that is reproduced verbatim within the new Bill, was meant to curtail overt acts of terrorism in Punjab and Haryana. A spate of terrorism-related violence in the two years that followed between 1985-87 exposed the ineffectivity of TADA for the specific purpose that it was ostensibly enacted. 

On the contrary, TADA in ten years of its existence was actually used, highhandedly, against the Indian civilian population in different states, albeit those sections that the police and governments decided were most inconvenient at that particular moment in time. 

TADA was used to stifle any form of democratic protest. For example, 57 women belonging to the progressive organisation of women protesting against GATT were arrested under TADA in  Nandyal in Andhra Pradesh during a prime ministerial visit. By 1995, in 22 of the 25 states TADA had been notified for application. In ten years a staggering 52, 998 persons were arrested all over the country under TADA, of which only 448 were convicted. The rate of conviction of TADA detainees  was less than one per cent.

Maximum TADA detentions took place in the state of Gujarat that arrested 19,000 persons under that law. Trade unionists, environmental activists and citizens belonging to the minority community were the sufferers. The tale of Mumbai in December 1992-1993 is a sorry record of partisan and brutal police behaviour (see pages 23-24) against the state’s minorities. In the aggression and frenzy unleashed by the Maharashtra and Mumbai police following the bomb blasts of March 1993, members of the minority community were threatened with indiscriminate arrests under TADA and huge monies extorted from them under this threat. Muslim businessmen had then alleged that as much as Rs. 25 crores had been extorted from them in this fashion. 

The National Minorities Commission also passed a unanimous resolution condemning the misuse of the law against the minorities. Justice Rajinder Sachar, a retired chief justice of the Delhi High Court and senior functionary of the People’s Union for Civil Liberties (PUCL) had stated on record, “TADA is being misused…After Bombay (bomb blasts) many Muslims have been arrested under TADA.”

The revised CLA retains the earlier definition contained within TADA of a ‘terrorist act.’ However under section 3(1) it widens the scope of the definition. Apart from intentions to overawe the government, strike terror, alienate any section and adversely affect harmony, the definition of a terrorist act  has been expanded further.

To this already wide definition, the Law Commission has added the words, ‘threaten the unity, integrity, security and sovereignty of India.’ This section three is very wide and over-arching in its definition and scope. It includes within it acts that are both violent and non-violent.

 Within the political scenario that confronts us at the moment a profound battle rages on. It is a battle for the ideological and political future f the Indian state. Details of the battle apart, a major and contested issue is on what and who constitutes the threat to the unity, security and sovereignty of India. Arguably, some of us feel that the divisive and pernicious politics of the BJP-RSS-VHP-BD combine, overtly manifest in senior functionaries who occupy government posts today and who have as their goal the transformation of the Indian state from its current democratic character to an authoritarian and sectarian one, is the singular and greatest threat to our unity, our integrity and our security. 

Saying, believing and campaigning for what we believe could, for the sake of argument, immediately attract the provisions of these draconian sections. 

The really dangerous aspect of the section is that it seeks to punish political ‘intent’ as much as the act itself. Section 3(1) of the Act states that it is an offence to conspire, attempt, incite, abet, or assist in the preparation of a terrorist act, or to knowingly harbour or conceal a terrorist. Membership of terrorist gangs, holding of property derived from terrorist funds are also offences under the Act.  Section 4(2) also provides that whoever commits or conspires or attempts or abets advocates, advises, facilitates the preparation or commission of a disruptive act or harbours a disruptionist would also come within the purview of this section.

This section clearly violates section 19 (1)(a) of the Constitution that guarantees freedom of speech and expression. For example, a poet or a cartoonist merely expressing the opinion that a plebiscite should be held to determine the future status of Kashmir could well be held and tried as a disruptionist if this Bill becomes law. This means that anyone can be detained for peacefully expressing their views on matters of ordinary political debate and if found guilty would be sentenced for a minimum sentence of five years, considerably longer than the envisaged international human rights standards.

Under section 5 of the CLA enhanced penalties can be given for offences under the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 or the Inflammable Substances Act, 1952 “with an intent to aid a terrorist or a disrputionist.” Offences related to the possession of arms have been linked to ostensible acts of terrorism in ways that are bound to make them deadly weapons in the hands of the police.

Section 3(8) of the proposed legislation makes the failure to disclose information to the police to prevent a terrorist act by any person liable to imprisonment for a year. All citizens have a moral duty to assist in the enforcement of law; the failure to do so here makes this omission a penal offence. Another way of legitimising police harassment and torture of relatives and friends of alleged terrorists? 

A critical feature of the Indian Constitution is the separation of the judiciary and the executive (Article 50). The CLA Bill seeks not only to erode this but also to vest extraordinary powers to the executive. The executive that is the government and its wing, the police have been given the power to frame all rules, mete out punishment, prescribe procedures, seize and confiscate property. Under section 6A the investigating officer (Superintendent of Police) can seize or attach property which at the stage of the investigation, he believes to be obtained by terrorist acts or the proceeds of terrorism.

In continuation of the thinking behind TADA, the CLA upholds the logic that special crimes need special procedures. Checks and balances in accordance with the basic rights of a citizen, rights relating to procedures for arrest, detention, ownership of FIRs and other police records, detailed at length in the CRPC, are given the complete go-by. Permanently.

Section 14c) of the CLA provides for not disclosing the identity of the witness even during cross-examination, while section 3(7) provides for the punishment to a person who may threaten the witness. Arbitrary tools for the police. It is a very serious matter that trade unions and other mass movements have been covered within the purview of the act. The provision implied in section 4(1)© is that if such organisations even by mistake become a party to violence, they can be booked under the section of ‘disruptive activities.’

The Bill gives no discretionary power of bail to the Court unless by prior consent of the public prosecutor. This provision from TADA was grossly misused especially in Gujarat. 

The Bill does not allow for appeal on the interlocutory order. Further, the Bill requires that the FIR must be ratified by the DGP within 10 days or the review committee within 30 days: since both are state authorities, it is unlikely that the verification will not take place. Section 13(5) provides that ‘a special court may if it thinks fit and for reasons recorded ….proceed with the trial in the absence of the accused or the pleader.’ 

This could allow for the grossest abuse. Section 18(2)(b) gives unlimited power to the police to retain the custody of the accused for 180 days without filing a charge sheet. Finally, section 17(3) restricts the period for appeal by the accused to only thirty days when Indian criminal law allows for sixty-ninety days.

Ironically all offences mentioned both in TADA and the CLA find mention in the Indian Penal Code –sections 121-A, 122, 124, 124-A, 153-A and 153-B, besides offences of rioting, grievous hurt, murder, dacoity and piracy.  The IPC also contains various offences relating to the Army, Navy and Air Force. In the past, for the protection of defence of the country, a statute like the Defence of India, Act 1962 was enacted which authorised the Central government to make such rules as appeared to be necessary for the Defence of India: civil defence, public safety, maintenance of public order, efficient conduct of military operations and security forces.

The experience of TADA and its brutal and insensitive application to the Indian civilian population is testimony of the desire and designs of a government and law and order machinery that wishes the experience to be repeated. Terrorism was not curtailed then, it was not even contained despite the existence of TADA On the contrary, thorough investigative procedures were given the go-by, dulling the professionalism of the law and order machinery that was simultaneously empowered by a brutal law to become trigger happy and break the law. Do we want this experience to be repeated? 

Archived from Communalism Combat, April 2000. Year 7  No, 58, Special Report 3

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