#Mumbairiots – Two decades on, the inconvinient truth #mustread


Meena Menon, The Hindu

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The less privileged survivors of the 1993 Mumbai riots should not be deprived of justice on the grounds that old wounds will be reopened

It is 20 years since two cataclysmic events shook Bombay now Mumbai. If there is recollection now of the first — the communal carnage spread over two months and which killed over 900 people — it is called the reopening old wounds. On the other hand, if you speak about the second, the serial blasts of March 12, 1993, it’s about terror coming home to the city and claiming innocent lives.

Even the State makes a clear demarcation — a judicial commission of inquiry for communal riots, and a designated court under the Terrorist and Disruptive Activities (Prevention) Act (TADA) for a terror strike. While the judicial commission’s recommendations are not binding on the government, a designated or special court has complete legal sanction. When carnage in Bombay post the Babri Masjid demolition had somewhat abated, then Prime Minister P.V. Narasimha Rao constituted a judicial commission of inquiry. It was to probe the over two-month long violence on January 25, 1993, one and a half months before the city would be shaken and stirred by a series of bomb blasts. While the judicial commission on riots headed by Justice B.N. Srikrishna was conducting its hearing, Maharashtra was claimed by a saffron coalition of the Shiv Sena and the Bharatiya Janata Party (BJP). The new government changed the terms of reference of the Srikrishna inquiry to probe the circumstances and the immediate causes of the serial bomb blasts. Then, all of a sudden, on January 23, 1996, the State government disbanded the commission of inquiry on the grounds that it was taking too much time and that it would reopen old wounds. Finally, then Prime Minister Atal Bihari Vajpayee intervened to revive the commission by May 1996. For five years, the commission examined 2,125 affidavits, recorded 502 testimonies and gathered 9,655 pages of evidence and 2,903 documents. Twenty-six police stations were covered by the commission but its report was rejected by the State government which said it was biased.

Commission’s stance

The Srikrishna Commission says that the Shiv Sena-BJP government desired that it go into certain aspects of the serial bomb blasts which occurred on March 12, 1993 and expanded its terms of reference which included finding out the circumstances and the immediate causes of the incidents, commonly known as the serial bomb blasts, whether the riots and the blasts were linked, and whether they were part of a common design.

In its final report, the commission said the riots appeared to have been a causative factor for the bomb blasts. “There is no material placed before the commission indicating that the riots during December 1992 and January 1993 and the serial blasts were a part of a common design. In fact this situation has been accepted by Mahesh Narain Singh who was heading the team of investigators into the serial bomb blasts case. He also emphasizes that the serial bomb blasts were a reaction to the totality of events at Ayodhya and Bombay in December 1992 and January 1993 and the commission is inclined to agree with him.”

Recurrent theme

While rejecting the Commission’s report, the government berated it for not paying enough attention to the blasts while devoting over 600 pages to the riots. With these words, the Shiv Sena-BJP had laid the foundation for erasing the memory of the riots and layering it with a sharp and unforgettable image of the serial blasts.

The theme of reopening old wounds recurred again in a High Court judgment which acquitted the late Shiv Sena chief, Bal Thackeray, in 2007 after the State government appealed in two cases of acquittals of Mr. Thackeray by lower courts. The High Court observed that no ends of justice would be served by digging up the old cases after the expiry of seven years and that they would only revive communal tension. Time has already passed. In a review of these circumstances, it is difficult to find fault with the impugned order passed by the additional chief metropolitan magistrate terminating the proceedings in the two cases, the High Court said.

By 2007, after the designated TADA court sentenced 100 people for their roles in the March 12 serial bomb blasts case, there was uproar from civil rights groups and riot victims. The State government agreed to set up four special courts to expedite 16 of the 253 pending cases. Many important pending cases were not dealt with by these courts though some convictions were handed out. While both the Congress and its ally, the Nationalist Congress Party (NCP), promised to implement the Srikrishna Commission report in their election manifesto, they did nothing. When special courts were being set up to speed up old riot cases, there was a chorus that this would reopen old wounds.

Yet, when the Supreme Court disposed of appeals by death row convicts and actor Sanjay Dutt in the March 12, 1993 serial blasts case on March 21, 2013, everyone revelled in the reopening of those old wounds. Bollywood was dismayed, people spoke in one voice saying that poor Sanjay Dutt must be forgiven. Hadn’t he spread Mahatma’s Gandhi’s ideals. For people convicted under TADA for disposing of Dutt’s weapons or storing them, there was no reprieve. While they were convicted and sentenced for an act of terror, Dutt got away unstained by the terror tag and with a sentence commuted to five years under the Arms Act. If that didn’t reopen old wounds for his co-accused in the case, nothing will. People also recalled fondly how Dutt’s father, the late Congress leader, Sunil Dutt, had to beseech Bal Thackeray to intervene so that the courts could grant his Sanjay bail after a stint in jail.

The survivors of the riots continue to despair. They can’t even get cases registered against culprits if they happen to be policemen. The Special Investigation Team, formed soon after the riots, closed more cases than it reopened. They have to approach the High Court for registering first information reports or demanding Central Bureau of Investigation inquiries. They have no choice but to reopen old wound

 

#India -Reject Amendments to Counter terrorism Law


The Terror of Law
December 14, 2012, HumanRights Watch

While India has a responsibility to protect citizens from terror attacks, the counterterrorism law has long been abused to detain suspects for excessive periods, file charges on fabricated evidence, and ban organizations without due process of law. These amendments will make the law an even more dangerous tool in the hands of officials who seek to oppress peaceful critics and minority communities.

(New York) – The Indian parliament should reject proposed amendments to India’s counterterrorism act that could lead to further misuse of the draconian law, Human Rights Watch said today. Parliament should call on the government to withdraw the amendments to the, which is scheduled for a vote in India’s upper house, the Rajya Sabha, on December 17, 2012.

On November 30, the lower house of the Indian parliament passed the amendments to the UAPA, India’s principal federal counterterrorism law, without significant input or scrutiny from the general public or civil society organizations. The amendments would allow the government broad leeway to increase bans on proscribed organizations to five years and widen the definition of a person to any association of individuals.

“While India has a responsibility to protect citizens from terror attacks, the counterterrorism law has long been abused to detain suspects for excessive periods, file charges on fabricated evidence, and ban organizations without due process of law,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “These amendments will make the law an even more dangerous tool in the hands of officials who seek to oppress peaceful critics and minority communities.”

The UAPA and counterterrorism laws preceding it have been widely misused to target political opponents, tribal groups, religious and ethnic minorities, and Dalits, Human Rights Watch said. For instance, state police have used the UAPA bans on groups to round up the same suspects after every terrorist attack simply because they had been previously charged – but not convicted – of membership in an unlawful organization.

The proposed amendments expand the definition of the “person” who can be charged under the law to include “an association of persons or a body of individuals, whether incorporated or not.” Human Rights Watch expressed concern that this would allow the police to charge an individual merely on the grounds of contact with a suspect.

The amendment increasing the period for which an association can be declared as unlawful from two years to five years will allow the authorities to ban for a longer period an organization it opposes, even though the organization has not been found unlawful by a court.

“Extending the ban on groups from two to five years without a court determination is a recipe for abuse,” Ganguly said. “The police and investigating agencies could arrest people for being part of a banned organization even though a court never found it to be involved in terrorism.”

The amendments also expand the definition of “terrorist act” to include acts that threaten the economic security of India and damage its monetary stability by production, smuggling, or circulation of “high quality” counterfeit currency. These crimes are not recognized terrorism offenses and are already covered by the Indian Penal Code. Including them under a more stringent counterterrorism law seems intended to make obtaining bail more difficult and to allow for a longer pre-charge detention period, Human Rights Watch said.

The bill would also enlarge the scope of punishment for raising funds to commit a terrorist act or for the benefit of terrorists irrespective of whether they have actually been used to commit a terrorist act. As long as one had knowledge that “such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act,” that person is culpable.
When opposition members called for a more thorough discussion of the amendments, India’s home minister, Sushil Kumar Shinde, told parliament that the government would never allow the misuse of the law and that the amendments would bring clarity to the exiting framework and remove deficiencies.
“The government’s claim that the law won’t be misused disregards the recent history of abuse of counterterror laws that have left suspects languishing in jail for years before being acquitted for lack of evidence,” Ganguly said. “Bad laws not only violate international human rights standards, but are counterproductive because abuses are used as a recruiting tool by extremist groups.”

In 2008, following an attack in Mumbai, the government amended the UAPA by borrowing from earlier counterterrorism legislation that had been allowed to lapse or been repealed because they had led to serious rights violations. These laws ­– the Terrorist and Disruptive Activities (Prevention) Act 1985 (TADA) and the Prevention of Terrorism Act 2002 (POTA) – had enabled serious human rights violations by government forces during counterterrorism operations.

The 2008 UAPA amendments also increased the risk of arbitrary detention, custodial abuse, and violation of basic due process rights by allowing courts to double the maximum period of

detention without charge for terrorism suspects. A judge can now extend pre-charge detention from the 90 days allowed under the Indian criminal code to 180 days upon a vaguely defined special request from a prosecutor. The law also doubles the maximum period of police custody from the 15 days allowed under the Indian criminal code to 30 days.

Following the passage of amendments in 2008, Human Rights Watch wrote a detailed report discussing the problematic provisions and offering recommendations to the Indian government to prevent abuses. Human Rights Watch called on the Indian government to revise the definition of terrorism and ensure that restrictions on organizations respect the right to freedom of association under international law. Human Rights Watch also urged the repeal of provisions such as those authorizing pre-charge detention for up to 180 days, limitations on bail, presumption of guilt in certain circumstances, and overly broad search, seizure, and arrest.

“It is sad that efforts by civil society groups to repeal or amend abusive laws such as the Armed Forces Special Powers Act get ignored by the government,” said Ganguly. “Yet, when it comes to enacting new laws likely to cause further abuse, the government forces them through without any serious public discussion, at the expense of due process, justice, and India’s global image.”

The Kinship Of Impunity #justice #Law


By Mukul Dube

02 October, 2012
Countercurrents.org

A Supreme Court decision of 26 September 2012 was reported in the newspapers in a manner that suggested wishful thinking. Headlines are necessarily abbreviated, and those in this instance said that the SC had sent a message to “the police” about branding people on the basis of religion. The message, in fact, was specifically to the Gujarat Police: “District Superintendent of Police and Inspector General of Police and all others entrusted with the task of operating the law must not do anything which allows its misuse and abuse and [must] ensure that no innocent person has the feeling of sufferance only because ‘My name is Khan, but I am not a terrorist.’”

It could be argued that the message should have been sent out explicitly to all the police forces in the country, because there is probably no part of India in which Muslims are not automatically and unthinkingly treated as terrorists. The SC bench may well have decided not to make general its specific injunction because that could have invited the accusation that it had over-stepped its bounds.

It is, however, impossible for anyone connected with the application of the laws to be unaware of the noise that has recently been made about the targeting of Muslims in India in matters related to terrorism. Report after report from citizens’ groups has spoken of the indefensible and arguably motivated phenomenon, and there have been public meetings about it in many cities across the land. It is high on the agendas of those concerned with civil rights.

The SC was dealing with appeals related to a January 2002 judgment of a Designated Court in Gujarat in TADA cases from 1994, 1995 and 1996. The matter hinged on whether or not the necessary permission had been obtained from specified officials before the accused were charged under TADA.

The SC did not accept the prosecution’s contention that A.K. Suroliya, the Deputy Commissioner of Police, Crime Branch, had given the necessary permission. Among other things, it found the tale of lost documents too tall to swallow. However, it did not speak of penalising any of the persons involved in dishing out falsehoods to cover up the illegality of their action.

The realist will ask, of course, what good that would have done. We know that nearly all the enquiries into religious violence – I hold the expression “communal riot” to be a lie – starting with that into the Jabalpur violence of 1961, have pinned down responsibility and have spoken of officials’ dereliction of duty or worse. No punishment worth the name followed.

Recent judgments of many courts in cases related to terrorism which have exonerated the innocent individuals who were arrested and then incarcerated and tortured for long periods, in the process destroying their lives and those of their families, have also censured members of the police force and have recommended departmental action against them. Here too, no action other than the white-wash kind was taken.

Indeed, the report on the Special Cell of the Delhi Police released recently by the Jamia Teachers’ Solidarity Association gives examples of the absurdity of police functionaries actually being promoted and rewarded despite having had strictures passed against them by courts of law.

Do our country’s police forces function in circumstances of impunity? Are there means and mechanisms by which it can be ensured that the “upholders of the law” do not themselves go against the law in their actions? Or are the law-men to be always a law unto themselves?

Certainly there are rules within the police bureaucracy. The repeated recommendations by courts of departmental action call for these rules to be applied. However, there seems to be in the police bureaucracy – as in other bureaucracies which, coexisting with one another and also ranged against one another, go to make up the government – what might be called a culture of impunity or a kinship of impunity.

Every policeman, from constable to Inspector General or Commissioner, belongs to the same “family”: and while an unruly youngster may have his wrist slapped, he will not be expelled from the collectivity or have serious action taken against him. Every policeman is, after all, dependent on every other policeman. If one is harmed, all are harmed.

The courts are held to be supreme in matters to do with the law. But they are no more than another bureaucracy – the babudom of justice – and they cannot realistically be expected to apply to the police the laws which they apply to ordinary people. Thus the recommendation of departmental action, despite it being common knowledge that that is little more than a matter of going through the motions, appearing to impose discipline while merely covering up errors and crimes and warding off disgrace.

I see no reason why the courts must limit themselves to making recommendations. When they have taken independent action in many other circumstances, why should they be essentially toothless when the police are involved?

Don’t give terror tag to innocent minority people: Supreme Court #goodnews


 

26 September 2012 , By J. Venkatesan , The Hindu
Police must ensure that no innocent person has the feeling of sufferance only because “my name is Khan, but I am not a terrorist,” a Bench of Justices H.L. Dattu and C.K. Prasad said on Wednesday. File photo

Police must ensure that no innocent person has the feeling of sufferance only because “my name is Khan, but I am not a terrorist,” a Bench of Justices H.L. Dattu and C.K. Prasad said on Wednesday. File photo
Ensure that no innocent has the feeling of sufferance only because ‘my name is Khan, but I am not a terrorist,’ Bench tells Police

No innocent person should be branded a terrorist and put behind bars simply because he belongs to a minority community, the Supreme Court has told the Gujarat Police.

Police must ensure that no innocent person has the feeling of sufferance only because “my name is Khan, but I am not a terrorist,” a Bench of Justices H.L. Dattu and C.K. Prasad said on Wednesday.

It ordered the acquittal of 11 persons, arrested under the Terrorist and Disruptive Activities (Prevention) Act and other laws, and convicted for allegedly planning to create communal violence during the Jagannath Puri Yatra in Ahmedabad in 1994.

“We emphasise and deem it necessary to repeat that the gravity of the evil to the community from terrorism can never furnish an adequate reason for invading personal liberty, except in accordance with the procedure established by the Constitution and the law,” the Bench said.

Being an anti-terrorist law, the TADA’s provisions could not be liberally construed, the Bench said. “The District Superintendent of Police and the Inspector-General and all others entrusted with operating the law must not do anything which allows its misuse and abuse and [must] ensure that no innocent person has the feeling of sufferance only because ‘My name is Khan, but I am not a terrorist’.”

Writing the judgment, Justice Prasad said: “We appreciate the anxiety of the police officers entrusted with preventing terrorism and the difficulty faced by them. Terrorism is a crime far serious in nature, graver in impact and highly dangerous in consequence. It can put the nation in shock, create fear and panic and disrupt communal peace and harmony. This task becomes more difficult when it is done by organised groups with outside support.”

‘Means more important’

But in the country of the Mahatma, the “means are more important than the end. Invoking the TADA without following the safeguards, resulting in acquittal, gives an opportunity to many and also to the enemies of the country to propagate that it has been misused and abused.”In this case, Ashraf Khan and 10 others, who were convicted under the TADA, the Arms Act and the IPC were aggrieved that no prior approval of the SP, as mandated under the provisions, was obtained before their arrest and recording of statements.

Appeal allowed

Allowing their appeals against a Gujarat TADA court order, the Bench said: “From a plain reading of the provision, it is evident that no information about the commission of an offence shall be recorded by the police without the prior approval of the District Superintendent of Police. An Act which is harsh, containing stringent provisions and prescribing a procedure substantially departing from the prevalent ordinary procedural law, cannot be construed liberally. For ensuring rule of law its strict adherence has to be ensured.”

The Bench said: “In view of our finding that their conviction is vitiated on account of non-compliance with the mandatory requirement of prior approval under Section 20-A(1) of the TADA, the confessions recorded cannot be looked into to establish the guilt under the aforesaid Acts. Hence, the conviction of the accused under Sections 7 and 25(1A) of the Arms Act and 4, 5 and 6 of the Explosive Substances Act cannot also be allowed to stand.”

 

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