Categories
Human Rights

Four women lawyers help Bastar’s imprisoned adivasis access justice in a broken system

Manish_goodhumanrightslawyeringConflict zones, as this column has pointed out earlier, are particularly difficult places for human rights lawyers to work. In the Bastar region in southern Chhattisgarh, years of the Maoist insurgency and the counter-operation by the Indian state have created a battle zone where even normal life is subject to the oversight of security forces. In Jagdalpur, I was advised not to step out after sunset as I could be picked up by the CRPF.

Paradoxically, for the wide publicity it gets, there is little in-depth information or reportage about Bastar. The legal issues that affect the region have not been understood or documented in detail.

It is in this situation that a group of committed human rights lawyers has been quietly working towards documenting the plight of undertrials in Bastar and providing them with legal aid at the trial courts. The Jagdalpur Legal Aid Group (or “JagLAG” as they call themselves), is an all-women team of lawyers based out of Jagdalpur, the headquarters of Bastar district, where they are fighting state apathy, disempowerment, and patriarchy while helping the predominantly adivasi population secure access to justice.

Earlier this year, I interacted with the group at their office in Jagdalpur and visited the courts and the jail there. JagLAG is unique in that its members are all graduates from major law universities and have chosen to litigate at the trial courts in Bastar over other, more lucrative, options. Shalini Gera, 44, is the oldest member of the group and a graduate from Delhi University, and had previously been working with senior advocate Sudha Bharadwaj in Bilaspur. The others, Guneet Kaur, Isha Khandelwal, and Parijatha Bhardwaj, are recent graduates from Indian and foreign universities. For all of them, JagLAG was the first experience at practising law at the trial courts. In an unfamiliar location, theirs has been a trial by fire of sorts.

Early days of gathering data

Chattisgarh's Bastar district

Chattisgarh’s Bastar district

JagLAG had its genesis in conversations that took place in Mumbai and Delhi among lawyers and activists around the possibility of a systematic legal intervention in Bastar. Major human rights abuses, such as the Soni Sori case, had come to light from the region. The intervention aimed at documenting human rights issues from the ground and providing legal aid to undertrials and adivasis who had been framed as “Naxals”. As a result of these conversations, a few advocates committed themselves to providing funding and mentorship for the group, with the aim of supporting an effort at ensuring access to justice in this region.

The Bastar region, where the group works, is comprised of five districts – Bastar, Dantewara, Kanker, Sukma, and Bijapur. JagLAG, being the first such intervention in the area, has had to learn the ropes from scratch. They spoke to local lawyers to get a sense of the courts and the cases being handled, and used empirical data obtained through the Right to Information Act to substantiate the anecdotes.

The RTI applications about court and prison statistics revealed a complete breakdown of the criminal justice system in Bastar. The jails were severely overcrowded. While  the average occupancy in jails across the country is 112%, the corresponding figures ranged from 255% at the Jagdalpur Central Jail to an astounding 428% at the Kanker District Jail. Most of the prisoners were illiterate adivasi men between the ages of 18 and 30 and an overwhelming majority were undertrials.

Overcrowding-in-Bastar-jails-(2012) (1)

An analysis of the case disposal statistics between 2005 and 2012 revealed that two-thirds of undertrials in Jagdalpur had to spend between two and five years in prison before receiving bail, while on an average, across the country, 75 per cent of undertrials spend less than a year in prison before receiving bail. An astounding 96 per cent of the cases between 2005 and 2012 ended in acquittal, indicating that in most cases, the police had mostly framed innocent adivasis and there was no evidence to indicate any actual links with the Maoists.

ChattisgarhJails_Undertrials_Bail

Trademark Naxalite cases

Following up, JagLAG began to track the cases of those who had been incarcerated the longest, to identify the blocks in the system. As they interacted with more prisoners and went through their files, patterns began to emerge. Most of them had been incarcerated in what Shalini described as “trademark Naxalite cases” – allegations of being involved in Maoist activities or conspiracy – including charges under Sections 302 or 307 and 149 of the Indian Penal Code, along with Sections 25 and 26 of the Arms Act, 1959 and Sections 3 and 4 of the Explosives Act, 1884. In addition, provisions of the Unlawful Activities Prevention Act, 1967 and the Chhattisgarh Special Public Security Act, 2005 are also invoked. Many of the prisoners who had been in jail for a long time had not even applied for bail, due to a combination of circumstances.

Bringing in families to file for bail

Local lawyers are reluctant to file for bail, given that the sections involved are non-bailable and the charges are grave, making it rather difficult to obtain bail from a trial court. In addition, the prisoners are usually residents of remote villages and given the long distances and poor transportation facilities in the region, it is difficult for their families to visit the jail or the lawyers. As families was unable to take an active role in the case, the local lawyers lose interest and the cases – and the undertrials involved –  would languish for years.

The Jagdalpur Legal Aid Group - (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The Jagdalpur Legal Aid Group – (from left to right) Guneet Kaur, Isha Khandelwal, Shalini Gera, and Parijatha Bhardwaj

The group began their legal aid work by filing bail applications on behalf of these undertrials. This intervention, including working with the lawyers currently representing the undertrial prisoners and persuading them to file for bail and bringing the families back on board, was a learning experience. They visited the families in their villages rather than rely on them – mostly poor, illiterate adivasis – to make the long and expensive commute all the way to Jagdalpur. However, local security concerns and the looming threat of police action have forced them to restrict field visits in favour of courtwork. They also provide support to fact-finding investigations into grave human rights violations, such as the PUDR investigation into the Sarkeguda extra-judicial killings of 2012, and represent victims of custodial torture, violence, and death at enquiries before the sub-judicial magistrate. Incidentally, on the day of my visit, Guneet and Shalini had just arrived after a day’s trip to Dantewara, to record the affidavits of villagers in a case of extra-judicial execution.

Problems with data and procedure

From the beginning, JagLAG faced several challenges in their work. The initial set of RTI applications revealed that data was recorded in different ways in different places. For instance, while the jail records were referenced by crime numbers, the court records used case numbers, and matching the two took some effort. Many of the long-pending cases that they took up already had lawyers, and much time was spent in tracking down people and their cases, as well as persuading the current set of lawyers to file applications or hand over the cases.

Local procedural requirements also made simple processes, like the filing of a bail application, extremely onerous. The criminal court rules of practice in Chhattisgarh require that while applying for bail, an affidavit had to be filed by a person other than the accused, who was conversant with the facts of the case. Usually, this was a close relative who resides far away from the court and the lawyer. The bail application cannot be filed until such a person has been located and the affidavit filed. JagLAG therefore had to re-calibrate its strategy and adopt more realistic goals about the number of cases they planned to take up. At present, they have taken two cases to the High Court and have handled several more at the various trial courts.

The group’s successes have also exposed the rot within the system. One of their early achievements was securing bail for two undertrials who had been incarcerated for six years, without their names even appearing on the chargesheet. Shockingly, the bail was only granted on a surety of Rs. 10,000 which resulted in the individuals concerned remaining in jail for another ten months while they contacted relatives and raised the money. An application filed under Section 440 of the Code of Criminal Procedure, to reduce the bond amount, remains pending before the court. In another case, they managed to get bail for three arrested persons at the remand stage itself – something that, despite being permitted under law, was almost impossible to do in Bastar.

Threats to their safety

The Sukma court, deserted on a weekday.

The Sukma court, deserted on a weekday.

The rigidly binary nature of public discourse in conflict areas means that anyone who does not espouse the State’s views is seen as siding with the opposition. In Bastar, this has meant that the members of JagLAG have been branded as “Naxalite supporters” or “sympathisers” by the administration and the police, for trying to higlight human rights abuses by the State. Consequently, they work under a constant cloud of threats to their safety, and hostility from the courts. Working as ‘outsiders’ in Bastar has not been easy: they have also faced hostility from fellow lawyers, who view them suspiciously because of their model of human rights lawyering, where they blend activism with court work, and also see JagLAG as competition because do not charge for their services. Isha says, “People keep attributing ulterior motives to us all the time. It’s difficult to explain the concept to them.” In addition, they began work with no contacts or local networks, and have had to build these up from scratch. However, being outsiders with no familial or other investments in the area has also enabled them to take more aggresive stances against the State which local lawyers would have been reluctant to do. As a group, JagLAG is always conscious about the danger of their advocacy work appropriating the agency of the adivasi communities they are representing as lawyers. Says Guneet, “It’s something that goes on all the time in my head – in our role as civil society here, we shouldn’t make decisions [on behalf of the adivasis] that aren’t ours to make.”

The challenges of patriarchy

Being women in a partiarchal, all-male structure – there are almost no women among court staff and at the Bar in Jagdalpur – means that they are at the receiving end of condecension and a patronising attitude from lawyers and judges alike. Parijatha says, “We have inexperience going against us, but this gets compounded by the fact that we’re women.” Over the last couple of years, they have managed to negotiate an uneasy space for themselves, while in the process breaking stereotypes about how women are expected to work and behave in public spaces. Guneet, Isha, and Parijatha have recently featured in Forbes India‘s “30 under 30” list for their efforts.

Sustainability          

JagLAG is supported, financially and professionally, by a number of lawyers around the country, and they are grateful for the mentorship that has helped them work in a very difficult location with very little experience. All four of them have found the work to be an enriching process. Says Guneet, “There were times we would call [the senior lawyers] up at night with minute legal queries and they were always very encouraging and helpful.”

The group has not fully considered its future, given that their experiences have been different from what they had originally planned. However, they are optimistic that they will be able to sustain themselves and include more local lawyers in the process. Shalini concludes, “The key to replicating and making this sort of initiative sustainable in other places is to involve local people as a core part of the work. That is something that we look forward to doing in the future.”

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)

Categories
Human Rights

New Gujarat terror law creates vague crimes, allows confessions to the police, permits secret trials, gives police immunity

Manish_authorOn March 31, the Gujarat Assembly passed the Gujarat Control of Terror and Organised Crime Bill, 2015 (“the Bill”), which is now awaiting the Governor’s assent. It is modelled on the Maharashtra Control of Organised Crime Act, 1999 (“MCOCA”), a law that was criticised for being draconian, in excessive violation of civil liberties, and with several documented instances of misuse. This bill had previously been passed on two occasions, in 2003 and in 2009. Each time, it was unsuccessfully referred for the President’s assent. Now, the Opposition has abstained from voting on it and has appealed to the Governor to decline assent.

Poor drafting, vague definitions

The Bill is poorly drafted, especially in places where it deviates from MCOCA. Definitions of “continuing unlawful activity”, “organised crime”, and “organised crime syndicate” (Sections 2(1)(d), (e), and (f) respectively) all refer to one another in a circular manner and offer little clarity. The definitions are also vague. “Organised crime” includes “cyber crimes having severe consequences” and “running large scale gambling rackets”. What constitutes “severe consequences” or “large scale” has not been defined. These terms are absent in MCOCA. The Bill also attempts to define “terrorist act” in Section 2(h) through a long-winded, logically inconsistent, and grammatically incorrect sentence that is painfully strung together and offers no useful guidance regarding what exactly constitutes the act in question. A much clearer definition (with the same ingredients) is found in Section 15 of the Unlawful Activities Prevention Act, 1967.

The substantive offences are defined in Sections 3 and 4 and are mostly similar to those defined in the MCOCA except for the addition of “terrorist act” in addition to “organised crime”. Besides these acts themselves, conspiracy, abetment, harbour, membership of an organised crime syndicate, and possessing property derived therefrom are all criminalised, with the possibility of life imprisonment (and the death penalty if the organised crime or terrorist act causes death).

Special courts

Sections 5 through 12 deal with special courts and their functioning. The state government, with the concurrence of the Chief Justice, is empowered to set up one or more special courts and appoint judges for exclusively trying offences under the Bill. The special courts have the powers of sessions courts but can also take cognisance of offences. Of interest is Section 10, reproduced verbatim from MCOCA, which states that trials before a special court shall have precedence over trials before any other courts, and imposes a de facto stay on all other proceedings for the period of the trial.

Evidentiary rules for intercepted communication and confessions

Section 14 provides for the admissibility of evidence collected through the interception of wire, oral, or electronic communication. This is where the Bill makes a significant departure from MCOCA – while the latter actually provides a procedure for the interception of communications, the Bill does not do so, only making existing intercepts admissible. Therefore, the procedure that will have to be followed will be as laid down in Rule 419A of the Telegraph Rules, 1951 and Rule 3 of the IT (Interception, Monitoring and Decryption) Rules, 2009. The unhappiness of the drafting reveals itself in a rather confusing (and possibly unnecessary) non-obstante clause at the beginning of the section, followed by the words “under the provisions of any other law”. Interestingly, the first proviso to the section also requires that the accused be provided with a copy of the order of the authority authorising the interception, ten days prior to the hearing where the intercept is sought to be admitted as evidence. This is partially nullified by the second proviso, which gives the judge the discretion to waive the period of ten days.

Among the most controversial of the Bill’s provisions is Section 16, clause (1) of which makes a confession to a police officer admissible in evidence. This section overrides Section 162 of the Code of Criminal Procedure and Sections 25 and 26 of the Indian Evidence Act, 1872, which specifically prohibit the use of statements made to police officers in evidence, in order to protect the rights of the accused by preventing the extraction of confessions under duress or torture by the police. While investigating agencies ordinarily have the option to record statements before a magistrate under Section 164 of the Criminal Procedure Code, the Gujarat bill destroys this delicate balance between the rights of the accused and the powers of the investigative agencies. It opens the door to egregious violations of human rights while extracting confessions from persons detained under its provisions. By means of an eyewash, the Bill provides some ‘safeguards’ in clauses (2) to (4), which are mostly meaningless given that the authority administering them is not independent, but a part of the investigating process. The shallowness of the provision is revealed by clauses (5) and (6), under which both the statement and the person making it are required to be forwarded to a magistrate within 48 hours. In such a circumstance, the statement could well have been recorded by the magistrate. This section appears to be an elaborate ruse for legitimising confessions to the police, and the inhuman machinations that go behind it: under clause (7), an allegation of torture by the person making the confession does not invalidate the confession, but merely prompts a reference to a civil surgeon for a medical examination.

Witness protection and closed trials

Section 17 contains provisions for the protection of witnesses, and is modelled on Section 19 of MCOCA. It empowers the special courts to hold the trial in-camera and take any measures necessary for concealing the identity and address of the witnesses. As part of this power, Clause 3(d) allows the court to make a decision that “it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner”. This is an extreme provision which is reminiscent of the attempt at holding a “secret trial” in the UK for terrorist offences, which was rejected by the Court of Appeal on the ground that “open justice” was both an integral part of common law and a means of ensuring public confidence in the legal system. The same considerations regarding open trials apply to India as well: Section 327 of the Criminal Procedure Code mandates that trials be held in open court, with limited exceptions on reporting. In a situation where the Supreme Court has already laid down guidelines for court reporting, the blanket media gag proposed by the Bill is extremely troubling and avoidable.

Procedural safeguards diluted, stricter conditions for bail

Section 20 dilutes several procedural safeguards provided to the accused under the Code of Criminal Procedure. On the lines of MCOCA and UAPA, it increases the time for which a person may be detained in police and judicial custody, pending investigation, to 30 and 180 days respectively. Clause (3) removes the option of anticipatory bail and clause (4) provides for extremely restrictive conditions regarding bail, almost mandating the acquiescence of the public prosecutor. Clause (5) is another controversial provision, which denies bail even if the accused had been released on bail in an offence under any other law on the date of the offence. This clause is based on Section 21(5) of MCOCA, which was held to be unconstitutional by the Supreme Court in 2008. The Bill therefore deviates from the well-established jurisprudence of bail being a right and jail being the exception. Thus, even if no charges are made out, people detained under the provisions of the Bill will have to languish in jail.

Burden of proof shifted

Section 21 of the Bill, which is identical to Section 22 of MCOCA, is a reverse-onus clause, which shifts the burden of proof from the prosecution to the accused in certain circumstances. In doing so, it dispenses with the presumption of innocence of the accused and breaks the “golden thread” of criminal jurisprudence, requiring the prosecution to prove the guilt of the accused beyond reasonable doubt, which originated in common law but has become a settled proposition in Indian criminal jurisprudence as well.

Immunity for state functionaries

Image above is from the website of the All India Radio.

Image above is from the website of the All India Radio.

As a matter of abundant caution, Section 24 of the Bill contains another non-obstante clause giving it overriding effect over all other laws for the time being in force. Section 25 caps off the draconian legislation by granting complete immunity to all state functionaries for any action taken under the provisions of the Bill. This effectively provides impunity to police officers for torture and extra-judicial methods employed in criminal investigations, under the garb of “anti-terror operations”. Thus, even in cases of false prosecutions, like the 2002 Akshardham terror attack, the victims will be left empty handed and without any recourse to justice.

“Tough anti-terror laws” have rarely if ever proven useful at combating terrorism, and usually serve to provide a cover for the incompetence of investigating agencies. A case in point is the aforementioned Akshardham terror attack case, where the Supreme Court came down heavily on the investigating agencies for conducting a shoddy investigation, which led to the framing of innocent persons, while the actual masterminds behind the attack were still at large. Gujarat already has a history of draconian legislation in the Gujarat Prevention of Anti-Social Activities Act, 1985 (“PASA”), which authorises preventive detention, and has been heavily criticised for being used to detain activists and protestors. For now, hope rests with the Governor and the President to prevent the new Bill from becoming law. Unfortunately, judicial history shows that the Supreme Court has also been extremely restrained while testing the validity of these laws under the Constitution, with the most draconian provisions being upheld repeatedly. The last of these was MCOCA in 2008, which was upheld (although the challenge was mainly on grounds of legislative competence rather than violation of Article 21). While hope is eternal, the outlook remains bleak if the Bill is assented to.

(Manish is a 2013 graduate of NLSIU, Bangalore and works on issues of access to justice. He is currently based in Ahmedabad.)