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The government
has created following set of laws to suppress, torture and
kill innocent Sikh men, women and children. Clearly, the
current Indian government is much worse than the 18th century
Mughal Empire.
A
DISILLUSIONMENT
When the
British tried to crush Indian dissent by passing more drastic
black laws like the Rowleatt Act in 1919, Gandhi gave a call
of 'Satyagraha' and it was Punjab which gave the most powerful
and militant resistance to such alien repression showing
remarkable Hindu-Muslim-Sikh unity. The historical
Jallianwala Bagh massacre in Amritsar took place on 13th April
1919 which formed a turning point in Indo-British relations
almost as important as the mutiny of 1857. Stanley Wolpert
comments, "... On April 13, 1919, Amritsar (Nectar of
Immortality), a city sacred to the Sikhs of the Punjab, was
transformed shortly before sundown into India's first national
urban shrine." (Jinnah of Pakistan by Stanley Wolpert, page
64).
Martial law
was promulgated in Amritsar, Lahore and a number of districts
in Punjab on 15th April 1919. Special Courts and summary
courts were appointed. Arrests, imprisonment and executions
on a big scale took place. Martial Law lasted from 15.4.1919
to 11.6.1919 during which whole of Punjab was isolated from
rest of the world by a rigid censorship.
Those who
suffered and faced gallows during freedom struggle in Punjab
resisting British repression could never have imagined that
Punjab would have to face again the same kind of repressive
laws, even more drastic, in free India against which they were
revolting! It is a sad commentary on the functioning of
Indian democracy that the same kind of repressive laws which
used to be condemned as Charters of Slavery during British
time are being enacted in one form or other in free India.
Though Indian Penal Code and other laws already provide for
all kinds of offences like, sedition, waging war against the
Government and acts of Terrorism, the Maintenance of Internal
Security Act, popularly known as MISA, was passed in 1971 with
the avowed abject of preserving national security, but we know
how this Act was used against political parties, Trade Union
workers and other innocent activists.
The same
government of free India has now passed the National Security
Act, 1980; the Punjab Disturbed Areas Ordinance, 1983; Armed
Forces (Punjab & Chandigarh), Special Powers Act, 1983; The
Terrorist Affected Areas (Special Courts) Act, 1984 and the
Terrorist and Disruptive Activities (Prevention) Act, 1985.
Our investigation has revealed that these Acts are being
widely used in depriving the people of Punjab of their civil
liberties and fundamental rights and have given a free hand to
the police and other Para military forces to torture and
harass the simple village folks for ulterior purposes.
NATIONAL
SECURITY ACT 1980
In spite of
the harrowing experience of MISA, the present ruling party
passed the National Security Act in December 1980. The object
and reasons proclaimed for the said Act were:
1. In the
prevailing situation of communal disharmony, social tensions,
extremist activities, industrial unrest and increased tendency
on the part of various interested parties to engineer
agitation on different issues, it was considered necessary
that the law and order situation in the country is tackled in
a most determined and effective way. The anti-social and
anti-national elements including secessionists, communal and
pro-caste elements and also other elements that adversely
influence and affect the services essential to the community
pose a grave challenge to the lawful authority and sometimes
even hold the society to ransom.
2.
Considering the complexity and nature of the problems,
particularly in respect of defense, security, public order and
services essential to the community, it is the considered view
of the Government that the administration would be greatly
handicapped in dealing effectively with the same in the
absence of powers of preventive detention.
Through
this Act the Government acquired powers for preventive
detention of such persons who posed a threat to the defense or
security of India and maintenance of public order. However,
the developments from 1980 to 1984 shows how the Government
tackled the deteriorating law and order situation in the
country, in spite of its resolve to tackle the same 'in a more
determined and effective way'. The activities of Sant
Bhindranwale and his various associates were well known to the
Government but the National Security Act was never revoked
against him. But how more draconian amendments were made in
it after Blue Star Operation and how the same were used
against innocent citizens will be seen subsequently.
BLUE STAR
OPERATION & RIGID CENSORSHIP
Then came
the Blue Star Operation, and rigid censorship was imposed in
Punjab. There was no independent and reliable source of news
about the happenings in Punjab. The rest of India and the
world could know about the situation in Punjab only through
the government sponsored news. Any journalist or other
independent person, who tried to discover the truth, was
charged with sedition. There is the case of Brahma Chellaney,
Correspondent, and Associated Press of American who was
arrested and is now being persecuted by the Government for
reporting unpalatable news about the official conduct. At the
start of the Blue Star Operation, a large number of foreign
and Indian journalists had been rounded up and forced to leave
Amritsar in a military convoy. A party to the dispute became
its own witness and its own judge in its own case.
If the
Government's intentions were honest and it had nothing to
hide, then why did it not allow independent observers,
journalists and other neutral persons to watch with their own
eyes as to how the conflict between the two sides developed
and how both of them conducted themselves during the course of
the attack? Even during international wars and battles
journalists are allowed to cover the same, but in this Blue
Star Operation by the Indian Army against its own citizens,
majority of them being innocent pilgrims--the Government did
not allow any neutral journalist or newsman. In such
circumstances, the following portion of the eye witness
account given by the 'girl student' who was trapped in the
Golden Temple along with her family becomes significant:
"...I could
not drink the water because it was mixed with blood.
Immediately then Bhai Amrik Singh sent us a message that all
of 'you must try to get out of the golden Temple because you
are innocent. If you are captured by the army, they would not
spare you because whosoever is captured by them--whether boy,
girl, old or child, would be a terrorist for them and would be
shot. Therefore you must try to get out somehow so there
would be somebody to tell outside as to what actually happened
inside. They are making so much false propaganda about us and
therefore you must get out to tell the real truth".
During this
rigid censorship all kinds of wildest and exaggerated rumors
spread in Punjab as well as outside. We already had such
experience of 'rumor mongering’ during Emergency. While All
India Radio and Television blurted out the government
propaganda, which no Sikh would believe, the
newspapers--national or local--had no independent source of
information to provide to the public. In the absence of any
reliable source of information, the Sikh and non-Sikh opinions
stood divided on opposite extremes. The Sikh masses were led
to believe that the government had completely destroyed the
Harmandir Sahib and occupied it and had deliberately insulted
Guru Granth Sahib by defiling and burning it. The other news
like destruction of Akal Takht and killing of innocent
pilgrims were accompanied by all sorts of exaggerations.
Resentment and anger began to develop fast and Akali Dal gave
a call to the Sikh masses to organize into 'Jathas' and march
to Amritsar to liberate Golden Temple from the clutches of the
'Satanic forces'. In the words Swarn Singh, aged 65 years and
Sarpanch of Jefferwal village: "Meanwhile Akali Dal had given
a call to liberate premises of Golden Temple and Morcha had to
be started from 17.7.1984 for this purpose. There were large
number of arrests on the eve of this and I was also arrested
on 14.7.1984 under section 107/151/IPC and was kept in the
Gurdaspur Jail for 15 days and then bailed out."
The news of
the attack on the Golden Temple, the rumors of destruction of
Harmandir Sahib and defiling of Guru Granth Sahib had a
traumatic effect on the Sikh soldiers. The training and
traditions of the Sikh Regiments are nurtured on religious
tenets and before being inducted into the Army as a trained
soldier, a Sikh has to take the oath of allegiance by
physically touching with both hands the Guru Granth Sahib.
Lest a Sikh soldier falter in keeping his vow to die fighting
in the thick of the battle for the honor of the country, the
Guru Granth Sahib accompanies the battalion into the
battle-field. And the same Guru Granth Sahib, the Sikh
soldier was informed, was now being trampled upon under the
booted feet of the Indian Army inside the Golden Temple and
other Gurudwaras in Punjab. Many of them went out of their
mind and started to march to the golden Temple to defend their
faith, without which their very existence seemed meaningless
to them.
Bhindranwale became a sort of martyr in the eyes of the Sikh
masses--not because he extolled violence and terrorism, but
because he had died fighting in defending their faith.
Folk-songs eulogizing the brave fight given by Bhindranwale
and his associates, and atrocities committed by the Indian
Army during the attack on the golden Temple began to be sung
in the villages and cities. The folk-song named 'SAKA' sung
by famous Nabha ladies, who were arrested later on, became
very popular. The song narrated as to how the Sikhs had
sacrificed most for the freedom of this country and how they
were being killed by bullets and cannon fire, and if they
wanted to save their pugree and beard, they had to stand and
fight.
As the
peoples movement began to gather strength, the Government
retaliated by passing the more brutal and draconian laws like
the Amendments in the N.S.A. and the Terrorist Affected Areas
(Special Courts) Act, 1984.
AMENDMENTS IN
THE NATIONAL SECURITY ACT
The
National Security Amendment Ordinance No. 5 was issued in
April 1984 by which a detenu may remain in jail for fifteen
days without knowing the reasons of his arrest and without
having any effective remedy because the period of furnishing
the grounds of detention was extended to 15 days. Further the
procedure for submission of the case of the detenu was amended
in such a way that a detenu will undergo imprisonment for a
period of six months before his detention could be found
unjustified by the Advisory Board.
The
National Security Amendment Ordinance was issued in June 1984
by which Section 5-A was introduced in the Act which provided
even if detention order is based on several grounds; it shall
be deemed to have been made separately on each of such
grounds. Thus the detenu now has to challenge each of the
ground of detention in order to get himself acquitted.
Another important amendment in this ordinance is that after
the revocation or expiry of a detention order, another
detention order can be issued even if no fresh facts have
arisen, provided that total period of detention does not
exceed one year.
Thus the
Government acquired arbitrary and repressive powers in its
hands by the above amendments in the said National Security
Act. The government officials started arresting the people at
their whims and fancy, and there was almost no check on their
arbitrary actions.
Following
are the few examples of the arbitrary manner in which the
National Security Act is used.
(a) Giani
Puran Singh, who is a Granthi at Akal Takht was arrested in
FIR No 263/84 on 30.9.1984 under section 124 and 153A and he
was released on bail after three months. He was again
rearrested after one month and is still in Amritsar jail. He
was involved with 10 others in the said case but none of them
was named in the said FIR.
(b) Mrs.
Rajinder Kaur, President, Stri Akali Dal, Punjab, made a
speech on 14.9.1984 in a Gurdwara in which she said, "...We
want a place where Sikhs could have breath of freedom." Then
she asked people to raise their hands if they approved of such
a place. One lady Mrs. Harbhajan Kaur Khalsa raised her
hand. She was arrested under the National Security Act,
though Bibi Rajinder kaur was not arrested. She was able to
get bail only in February 1985.
(c) Shri.
G.S. Grewal, Advocate, Shri Manjit Singh Khera and Shri
Joginder Singh Sahni attended a small meeting in a Gurdwara in
Chandigarh on 8.6.1984. Students felt agitated and they wanted
to take out a procession. These three and some other elderly
persons were persuading them not to do so. During his speech
Shri G.S. Grewal said, "...The weapons which are being shown
by the army are not likely to be the ones used by the
terrorists. In that case there would have been more
resistance than they are telling us. We must rehabilitate and
help families killed in Blue Star and collect funds."
Shri Manjit
Singh Khera said, "Our struggle has not ended. It has just
begun. We must sit quietly and decide how to carry on our
agitation rather that just emotionally agitate."
Joginder
Singh Sahni said, "Next week we will commemorate the
operation. Then we can wear black turbans."
All the
above speeches were objected to as sedition and all of the
three were apprehended under NSA.
In the said
meeting only resolutions were passed and one resolution said,
"Deserters have deserted because their sentiments were
touched. Their cases should be looked at sympathetically and
their families should be looked after." This resolution was
also objected to and there was harassment of all those who
participated in the said meeting.
Thus the
people were being, and still are, prosecuted for merely
expressing their resentment and views which is one of their
fundamental rights. The time honored truth of a democratic
system, that "the ultimate good desired is better reached in
free trade in ideas that best test of truth is the power of
the thought to get itself accepted in the competition of the
market," has been rejected (Mr. Justice Holmes in Abrams Vs.
United States --250 US). In a democracy it is an insult to
the people to think that they cannot be trusted to read or
hear or understand or to discriminate among various points of
views. Gandhi believed if rights of minorities are to be
respected, the majority must tolerate and respect their
opinion and action.
WAGING OF WAR
AGAINST THE GOVERNMENT OF INDIA
It was
claimed by the government that 1592 civilian/terrorists were
captured from inside the Golden Temple and 796 from other
religious places. These civilians were charged with waging of
war against the Government. A great majority of them were
innocent pilgrims and if they were tried in the ordinary
courts, they would have easily proved their innocence and got
themselves released on bail and acquitted. And if it was
proved subsequently that there were only near about dozen of
terrorists among the captured, the government action would
have become a mockery that it had to use military to capture
such an insignificant number of terrorists. According to Shri
S.S. Bhagowalia, advocate, Bhindranwale's men were only 140 to
150. Therefore charges of waging war etc. were foisted on by
the government on thousands of innocent civilians apprehended
during the operation, in order to justify the government
action. Therefore in order to ensure that these innocent
accused do not get any relief entitled to in an ordinary
courts, National Security Act was amended in June 1984 and
Special Courts Ordinance proclaimed. Following are a few
examples to show the type of terrorists captured from the
Golden Temple:
1.
Kanwaljit Singh: He is a 20-year-old student of Khalsa College
(evening), Delhi whose father Satnam Singh runs a provisions
store at Lawrence Road, Delhi. He had visited the Golden
Temple on June 2 and wanted to return to Delhi but found that
all the outgoing trains were cancelled and therefore both of
them were forced to stay at the Golden Temple at Guru Ram Das
Serai. Kawaljit had to miss his interview at Delhi with the
Institute of Bank Management on June 3 morning and his
examination with the State Bank of India the same afternoon.
He was captured by the army along with the other pilgrims and
is still under detention in the Jodhpur jail.
2. Bakshish
Singh: He was manager of the Punjab & Sind Bank branch
situated at Guru Ram Das Serai, Golden Temple. He was
receiving a salary of Rs 3000 p.m. He had taken his wife to
the Golden Temple on June 1, 1984 for her treatment for tumor
and they were staying in Guru Ram Das Serai from where both of
them were arrested on June 6. His wife was taken to Jalandhar
jail, kept there for 22 days and then taken to Hospital and
operated upon and then released. Bakshish Singh, aged 43
years is still in the Jodhpur jail.
3. Raminder
Pal Singh, Aged 20 years. He is the son of Shri Harcharan
Singh Ragi who is an employee of the SGPC. His family has its
residential quarters in Parikrama Scheme in the golden
Temple. Finding themselves unsafe in the midst of the firing,
the family, along with some other employees took shelter in
the basement of the Information Office. Raminder Pal Singh
was arrested on June 6 along with others and is still in the
Jodhpur jail. Extremely studious boy, he also took his B.A.
II year examination from the Jodhpur Jail.
4. Kashmir
Singh, s/o Gujjan Singh, r/o village Baba Bakola, ages 45
years: He had gone to Darbar Sahib for Guru Purb. He has only
one and half acres of land and four small children to feed.
His wife learnt after one month that he was picked up from
Bazar Kathian on June 6 and was falsely implicated as 'waging
war against the State' and was shown to have been arrested
from inside the Golden Temple.
5.
Bhupinder Singh, s/o Jiwan Singh, aged 22 years, r/o village
Rayya, Distt.Amritsar. He used to manufacture steel almirahs.
He was arrested from Kathiwali Bazar on June 6 in Amritsar but
was shown to have been arrested from inside the Golden Temple.
6. Manjit
Singh s/o Bawa Singh
7. Randhir
Singh s/o Mangal Singh
8. Randhir
Singh s/o Bahadur Singh r/o village Dehriwal Kiran, P.S.
Kalanaur, Distt. Gurdaspur:
These three
young boys, like hundreds of others, took the customary
village donation of grain to Darbar Sahib on the eve of Guru
Purb, where were trapped inside the Golden Temple and are now
lodged in Jodhpur jail as terrorists.
And there
are several cases like that. All these accused numbering more
than a thousand have been charged with 'waging war against the
State' and are detained under the National Security Act.
THE TERRORIST
AFFECTED AREAS (SPECIAL COURTS) ACT 1984
This Act,
hereinafter referred to be as the Special Courts Act, was
enacted in strange circumstances. Blue Star Operation in June
1984 claimed to have successfully curbed terrorism but soon
after one month of the said Operation, this Act was passed in
the form of a Presidential Ordinance on 14th July 1984 with
the ostensible purpose of curbing and controlling the menace
of terrorism.
The avowed
object of the Special Courts Act was declared to provide for
speedy trial of certain offences in the terrorist affected
areas, but in practice the Act is most dilatory, and
tortuous. A host of offences have been listed in this Act as
scheduled offences which are already covered by the Indian
Penal Code. The Explosives Act, the Arms Act, the Telegraph
Act, the Railway Act, the Unlawful Activities Act, the
Anti-Hijacking Act and the Prevention of Damage to Public
property Act. The offences such as waging war, sedition,
abetting mutiny or attempting to seduce a member of the armed
forces from his duty, creating communal hatred, threat of
injury to public servant, harboring offender, defiling or
injuring place of worship with intent to insult the religion,
intentional acts of such insult, murder, attempt to murder,
serious hurt, wrongful confinement, kidnapping, robbery and
dacoity are already provided and punishable under the Indian
Penal Code. All these things even on paper are so fearful,
but in life when used how difficult it must be for a human
being to carry out his every day life. The Government has not
explained as to why it resorted to such drastic measures as
this Act.
There are
about 47 courts presided over by the District and Sessions
Judges and Additional Judges and there are only 11 special
courts in Punjab. More than 3/4th work of the regular courts
now stand transferred to these 11 special courts which are
overworked as even ordinary offences without any element of
terrorism are being tried by them. The ordinary adjournment
is from 5 to 8 months and it is beyond any comprehension as to
how it can achieve the object of speedy trial.
The object
of 'speedy trial' could very well have been achieved by
establishing additional courts and appointment of more judges
to preside over these courts. But this has not been done. On
the other hand an extraordinary procedure has been adopted for
the special courts which is most fanciful, oppressive and
arbitrary.
According
to section 167 of the Criminal Procedure Code, Magistrate can
give police remand only for 15 days but in the Special Courts
Act this period has been extended to 30 days. Moreover,
according to the Criminal Procedure Code, on the expiry of 60
or 90 days as the case may be, the accused is bound to be
released on bail. But the Special Courts Act has extended
this period to one year. The result is that the police has
been empowered to deprive an innocent person of his liberty
for a period of one year without even bringing a charge
against him. There have been several cases in which a person
was arrested by the police just to harass and torture him and
after the expiry of 7 or 8 month period in jail, the police
has just withdrawn the case on the ground that no material
could be gathered against the detainee. Though the accused is
released in such cases, but during the period of detention,
the family of the accused stands broken and his means of
livelihood deprived.
Following
are the illustrative cases to show how the police is making
use of this Act in order to deprive the innocent persons of
their civil liberties:
1. Randhir
Singh, s/o Harbans Singh Ghumman, r/o village Ghumman Kalan,
aged about 20 years: Randhir Singh was arrested in Gurdaspur
on 16.8.84 in FIR No. 80/84 dated 2.4.84 u/s 302 IPC of PS
Dera Baba Nanak. After torturing him for a number of days and
keeping him in jail for more than 3 months, the police
withdrew the case against him. The orders of the Addl.
Sessions Judge, Batala. Shri R.N. Moudgil, dated 26.11.84 are
as follows:
Present: App accused in custody. ASI Gurpal
Singh, P.S. Dera Baba Nanak, ASI Gurpal Singh who is present
in Court states that Narinder Singh is no longer required by
them in this case. His further judicial custody is not
requested. Accused Narinder Singh, be therefore, released.
Sd/ R. N. Moudgil
JMIC 26.11.84
Contention of Shri Narindar Singh is that he
was released because the police wanted to liquidate him in
false encounter and now he saved himself. Since then he is
underground.
2. Pargat
Singh: Pargat Singh was arrested in June 1984 and he was able
to get his bail when he showed to Court the three different
versions of the police and the military about the recovery
made from him and his arrest. The whole order is reproduced
below:
In the
Court of Sardar K. S. Bhalla, Judge, Special Court
Judicial
Zone, Jalandhar
Bail
application No. 668 of 1984
Date of
Decision: 11.12.1984
State
Versus Pargat Singh, Son of Harbhajan
Singh r/o
village Bhullar Hans,
District
Amritsar.
F.I.R. No.
143 dated 29.6.1984 P. S. Kathu
Nangal (Distt.
Amritsar) U/s 4/5 Explosive Substances Act
Present:
Shri P. S. Hundal, Counsel for the applicant
Shri V. K.
Gupta, Public Prosecutor for the State.
ORDER
Arguments
heard. In this case under section 4 of the Explosive
Substances Act a hand grenade is said to have been recovered
from the possession of applicant Pargat Singh but there are
three different versions with regard to the recovery. One is
provided by Capt. S. C. Shukla, a commissioned Officer of
Indian Army. He in his written report dated 29.6.84 addressed
the SHO, Police Station Kathu Nangal, states that on receipt
of information houses were searched in village Bhullar Hans
and a hand grenade was recovered from the possession of
applicant Pargat Singh. It has not been spelt out in the
report from where the recovery was made and how the possession
of the applicant is fixed so far as the hand grenade is
concerned. The SHO in his turn provides 2nd version through
FIR No. 143 of 1984. In that important document it is
mentioned by S. I. Joginder Singh that applicant Pargat Singh
on his interrogation, made a disclosure statement to him at
his house in village Bhullar Hans, which was already secured
by Military authorities, leading to recovery of a hand grenade
after digging out of the court yard of his house.
The light
of the day has been shown in the third version in a Calendar
dated 10.7.1984 prepared by an officer not less than the rank
of Inspector Police. SHO, Police Station, Kotwali, Amritsar,
photostate copy of which has been placed on the file by the
counsel for the applicant and existence of which calendar is
not disputed. In the version provided by said responsible
officer in that Calendar under section 107/151 Cr. P. C. It
is mentioned that security forces apprehended the applicant
from Golden Temple complex, Amritsar while fighting after
collecting arms and ammunition against the Indian Government
during Military action. If the applicant was apprehended,
during military action which took place in the first week of
June 1984, recovery if any was bound to have taken place at
Amritsar and in the first week of June 1984. In this
situation of the matter for obvious reasons, it is fit case to
admit applicant Pargat Singh to bail and he is, therefore,
ordered to be released on furnishing personal bond with one
surety in the sum of Rs. 7000 each to the satisfaction of
Chief Judicial Magistrate Amritsar.
sd/Judge
Special
Court, Judicial Zone
Jalandhar
Announced
on December 11, 1984
3. Amrik
Singh: He was arrested on 3.7.84 and a case was planted on him
that Amrik Singh was making provocative slogans in a meeting
of 100 men audience. In April 1985 the police furnished the
names of two witnesses in the case i.e. Shri Kashmir Singh and
Shri Seva Singh. However, when contacted, these two witnesses
told the family of Amrik Singh that they had not seen any such
incident but the police had told them that they were witnesses
in the case. These two persons filed their affidavits in the
court alleging that they had not seen any such incident and on
the basis of the same Shri Amrik Singh was released on 3rd May
1985. His statement is enclosed as Annexure No.2.
4. Rajinder
Singh, s/o Subedar Ganga Singh, aged 35 years, r/o village
Narrawali, P.O. & P. Kalanaur, doing private medical practice.
He is an Akali activist and was arrested in July 1984 and was
falsely implicated in a case of fire which occurred in a shop
in Kalanaur on 25.11.1983. However, Rajinder Singh had
courted arrest in Akali Agitation and was in jail from 18.9.83
to 26.11.83. He showed these facts to the Judge and so the
judge released him after 15 days dismissing the case of the
police.
5. Shri
Puran Singh, s/o Fauji Singh, aged 27-28 years, employed as
Assistant Linesman with the Punjab Electricity Board: He was
arrested on September 10, 1984 as he was coming out of duty at
11 p.m. at Kanun and was badly tortured. He was acquitted in
February 1985 as the police withdrew his case for want of
evidence.
JAIL, NOT BAIL
"Bail, not
jail" is the general rule which has been adopted in the
criminal trials which begin with the presumption of innocence
in favor of the accused. The idea behind is this if the
accused is detained before and during the trial, then it has
grave consequences for the accused. Though he is presumed to
be innocent till his guilt is proved, yet he would be
subjected to psychological and physical deprivations of jail
life. The jailed accused loses his job and is prevented from
contributing effectively to the preparation of his defense.
Moreover, the burden of his detention fall heavily on the
innocent members of his family. Therefore to grant bail is
the rule than exception. But in Punjab this rule has been
changed into 'jail, not Bail', Special Courts Act has been
framed in such a manner that it is almost impossible for the
accused to be released on bail under it.
One of the
most obnoxious features of the Act is the denial of the rights
guaranteed under section 438 of the Criminal Procedure Code.
Section 438, usually called the Provision for Anticipatory
bail, empowers the High Court and the Court of Sessions to
grant anticipatory bail i.e. direction to release a person on
bail even before the person is arrested. According to the
Forty First Report of the Law Commission on the Code of
Criminal Procedure Code, the necessity for granting
anticipatory bail arises because sometimes influential persons
try to implicate their rivals in false cases for the purpose
of disgracing them or for other purposes by getting them
detained in jail for some days. Apart from false cases, where
there are reasonable grounds for holding that a person accused
of an offence is not likely to abscond, or otherwise misuse
his liberty while on bail, there seems to be no justification
to require him to first submit to custody, and remain in
prison for some days and then apply for bail. The section is
salutary provision which enacts the mandate of Article 21 of
the Constitution of India but the people of Punjab have been
deprived of this salutary provision. The numerous cases
mentioned in the report elsewhere show that the deletion of
section 438 of the Cr. P.C. for the people in Punjab has
brought misfortune and havoc for the innocent persons. The
case of Shri Paramjit Singh Sidhu, Advocate at Jalandhar, is
also illustrative of this. Though this advocate has been
daily practicing in the Jalandhar Court and there is no
likelihood of his absconding yet the police has raided his
houses several times in his absence and tried to arrest him on
false charges. His only crime is that he is valiantly
fighting for justice for the several innocent citizens who
have fallen victim to the police rapacity. It is with great
difficulty that he has been able to save himself from the
mollified detention, but there is no security in future so
long the Special Courts Act exists.
Further,
when person is arrested, to make it almost impossible to
secure his release on bail, it has been provided in the Act
that the Court, while making an order must be satisfied that
there are reasonable grounds for believing that such an
accused is not guilty of such an offence and that he is not
likely to commit any offence while on bail. Which court will
take such future guarantee for an accused?
EVERYONE
GUILTY TILL PROVED INNOCENT
Section 20
of the Special Court Act puts everybody in jeopardy and the
dreaded sword of Damocles hangs on everybody's head.
According to this section, if an accused person is shown to
have been at a place declared as disturbed area at a time when
firearms or explosives were used at or from that place to
attack or resist the members of any armed forces or other
state forces, then presumption is there, unless contrary is
shown that 'such a person had committed such an offence.' This
section is applicable to offences under sections 121, 121A,
122, or 123 Indian Penal Code which relate to the waging of
war or attempting to wage war against the Government of India,
conspiracy to wage war or overawe the Govenment of India,
collecting arms with the intention to wage war, and concealing
with intent to facilitate design to wage war. Thus any law
abiding and innocent person can be roped in with the help of
these draconian principles. Such brutal laws have no place in
a society which call itself as democratic and civilized.
AVOIDING THE
PUBLIC: TRIAL IN CAMERA
Section 327
of the Criminal Procedure Code provides for open trial to
which the public generally may have access, because public
trial in open court acts as a check against judicial caprice
or vagaries and serves as powerful instrument for creating
confidence of public in fairness, objectivity and impartiality
of the criminal justice. But the Special Courts Act offends
these basic norms of fair trial. Sub-section (1) of Section
12 under the pretext of protection of witnesses provides that
all proceedings before Special Court shall be conducted in
camera. This provision is serving as a cover for hiding
governmental incompetence and inefficiency and police
brutality.
In order to
justify the existence of the special courts, the police have
been hauling up large number of innocent persons, mostly in
Arms Act. More than 80 per cent cases pending in various
special courts in Punjab are under Arms Act because it is easy
for the police to plant a knife or pistol on anyone. Due to
trial in camera, the public has been deprived of the benefit
of seeing with its own eyes as to what kind of terrorists the
special courts try. If the trial is done openly, then public
can see how the police has been dragging the innocents, the
poor and the deprived. Since under the Special Courts Act
accused can be detained for one year without charges being
brought against him, and it may take another couple of years
in detention if the trial begins, most of the accused, in
spite of being innocent admit their guilt, on the advice and
pressure of the police. The police does so in order to
justify the arrest of the 'real guilty' convictions in cases
under Arms act generally ranges from 7 to 8 months and the
accused therefore after passing 7 or 8 months in jail, deem it
better to admit there as the judge of the Special Court
sentences them to imprisonment already undergone and release
them. If these poor fellows do not admit the guilt then they
will have to face trial for 2 to 3 years and remain in jail,
which period will be far longer than they are going to get in
sentence. Mrs. Narinder Kaur, Advocate at Jalandhar, narrated
the following incident, which are usual in the Special Courts:
A very
poor, thin young man in tatters was brought before the Special
Court and the police had advised him to make a confession that
he had a knife in his pocket, so that he may be released as he
had already undergone 5 months imprisonment. This incident
was in December 1984.
"Did you
have a knife?" the judge asked.
"Sir, I do
not have even a shirt to wear" the boy answered in feeble
voice.
"Did you
have a knife or not?" the judge asked.
"Sir, I
feel severe cold in the night. Please provide me some warm
clothes in the night in the jail", the boy again answered.
The judge
again asked in a loud angry voice. "Did you have a knife or
not?"
The boy
then said, in a harassed voice. “Okay Sir, if you say I had a
knife, then I did have a knife.”
So the
confession was made, the boy released to be roped in again in
future because now he had become a confirmed convict, a
confirmed terrorist.
Following
is another instance:
State Vs.
Sunder Singh, s/o Kaseru Singh, r/o Batala
Dist.
Gurdaspur, clean shaven
U/S
25/54/59 Arms Act
FIR No. 241
dated 26.10.84 P.S. Div. No 6 Jalandhar
Sunder
Singh's niece was married in Ludhiana. He was going to
Ludhiana on 23.10.84 to give some gifts and a new wrist watch
to his niece. He also had Rs. 300 with him. While on his way
at Jalandhar, ISI Iqbal Singh asked him to get down from the
bus and brought him to Police Post at Model Town and snatched
Rs. 300/- and the watch from him, and kept him in illegal
detention from 20.10.84 to 26.10.84 and gave him severe
beating. He also made Sunder Singh to write a letter for his
family to bring money and his family members came and gave Rs.
400 to the ASI. A small knife was planted on him and case was
registered. As the offence fell under the Special Courts Act,
no bail was granted to him.
During his
detention his father died and wife became mental. As more
than six months passed, he decided to make confession in order
to be released. But he could not even make a confession
because the police had not put up challan yet. Therefore, he
requested the Court of Shri Arzinder Singh, Executive
Magistrate, directing the police to put up the challan. The
Magistrate directed the police to put up the challan but the
police did not do so. Shri Sunder Singh again made an
application on 18.2.85 for putting up challan and the
magistrate passed an order on it on 19.2.85 directing the
police to put up challan on 4.3.85 and also wrote a D.O.
letter to SSP Jalandhar. But on 4.3.85 also the challan was
no put up. Then Magistrate again ordered for production of the
challan in the Court and also sent his Naib to the police
station. However, the police informed that the said challan
was not traceable and the next date was fixed on 16.5.85 Mrs.
Narinder Kaur Varick, Advocate in the case told that there are
several cases like this where the accused wants to falsely
confess his guilt in order to get out of the jail, but this
cannot be done because the police has been avoiding to put up
the challan in the Court on one pretext or the other.
WHO IS A
TERRORIST?
The people
of Punjab, especially the Sikhs, have been smarting under the
weight of the terrible onslaught of the definition of
'terrorist' flung over them under this Act. At the time of
the promulgation of the said Act, the people of India were led
to believe that the object of the Act was to deal with the
terrorists only. But the Act is framed in such a manner that
even petty crimes, family disputes, individual offences, which
have no element of terrorism in them, are being tried under
the Special Courts Act.
One example
illustrative case is of Toti alias Jaspal Singh Vs. State of
Punjab, which is pending in the Supreme Court. The facts of
the case are that on 15.7.84 at about 12.30 p.m. some accused,
namely Toti alias Jaspal Singh, Bhajan Singh alias Harbhajan
Singh, Harbans Singh and Harjeet Singh had a quarrel with
Harvinder Pal Singh (since deceased) over the distribution of
'langar' at the Gurdwara of Ramgarhias, Jallandhar. After
about 2 hours, the said accused waylaid Harvinder Pal Singh
and one Randhir Singh near their houses. While Harbans Singh
allegedly gave a fatal spade blow to Harvinder Pal Singh, Toti
and Bhajan Singh allegedly gave two blows with sticks each on
the person of Randhir Singh and injured him. After being
arrested, all the aforesaid four accused filed bail
applications in the court of Shri Jai Singh Sekhon, Sessions
Judge, Jalandhar. The Judge accepted the bail of Toti and
Bhajan Singh but refused bail to other accused. The Judge
observed that the case of Toti and Bhajan Singh stood on a
different footing as they were alleged to have given only
simple injuries on the person of Randhir Singh. The learned
Sessions Judge also held that the act of these two accused did
not fall within the definition of 'terrorist' as defined in
section 2(h) of the said Act and that it was a stray incident.
Aggrieved
by the above order of the Section Judge releasing Toti and
Bhajan Singh on bail, the brother of the deceased filed a
petition in the Punjab and Haryana High Court for quashing the
order of the Sessions Judge and cancellation of the bail, on
the ground that the acts of Toti and Bhajan Singh fell within
the definition of 'terrorist' as defined in the Special Courts
Act and therefore the Sessions Judge had no jurisdiction to
hear the matter and only Special Court had jurisdiction over
the same. This petition was heard along with similar other
petition CRP No. 1292 of 1984 in the case of State of Punjab
Vs. Piara Singh and the High Court disposed of both the
petitions with the common judgment on 21.9.1984. Justice M.
M. Punchhi, the learned judge of the High Court quashed the
order of the district and Sessions Judge holding that the said
Sessions Judge had no jurisdiction to hear the said bail
applications because the offences were covered under the
Terrorist Affected Areas (Special Courts) Act 1984. The judge
further declared that the purpose of the Special Courts is not
only to try the 'terrorists' but also other accused who have
committed the scheduled offences. The judge said, "...It is a
fallacy to say that the special courts are set up to try
special offenders. They have been set up rather to try
scheduled offences committed by offenders, whether terrorist
or non-terrorist."
Therefore
while general impression has been created in the rest of India
that special courts have been established to try special
offenders i.e. the terrorists, but the fact is that these
courts are mainly busy in trying the cases of the
non-terrorists. The Special Courts Act has been so vaguely
worded that even the offences of a purely private nature like
murder or injury in a domestic quarrel which do not have any
element of terrorism in them are being tried by the Special
Courts with the sole purpose of harassing the public.
The appeal
pending in the Supreme Court has one of the grounds, amongst
others, that there is a discrimination patent on the face of
the Special Courts Act. In as much as whether an offence has a
connection with terrorist activity or not the accused
concerned have been clubbed together with persons charged with
offences involving terrorist activities and therefore this Act
becomes unconstitutional being violative of the Articles 14,
19, 21 and 22 of the Constitution. Another writ petition
challenging the constitutionality of the Special Courts Act
has also been pending in the Supreme Court since October
1984. As the Supreme Court has not yet pronounced any
judgment in the aforesaid two cases, many people in Punjab are
feeling very bitter and sore over this delay in the Supreme
Court because the decisions in these cases are going to have a
great bearing on the fate of the people of Punjab.
A FUTILE CAUSE
The
ruthless repression in Punjab has been inspired by the belief
that the so-called Punjab extremists are being aided and
encouraged by the foreign power. It would not be out of place
to mention similar parallel during the British repression of
Punjab in 1919. At the time also there was a belief in the
government circles that the Punjab was on the verge of
rebellion, and extremists in Punjab were being aided by
German, Afghan and Pan-Islamic agents. However, in their
secret correspondence, Sir C. R. Cleveland, the Director of
the government of India's Intelligence Bureau, wrote to M. L.
Robertson, Bombay, Inspector General of Police on May 23,
1919--"So far no trace of organized conspiracy have been found
in the Punjab. There was organized agitation, and then in
particular place the people went mad. I am sorry to say that
the Times of India and the Pioneer have committed themselves
to the theory of Bolshevism or Egyptian instigation for our
Indian troubles. I have satisfied myself that they have no
evidence worth the name to support the theory."
While the
Indian national Congress had appointed its own committee known
as the 'Congress Punjab Inquiry Committee' to investigate into
Punjab atrocities, the British Government had to appoint its
own Commission, known as the 'Hunter Commission' for the same
purpose on Public demand. Even the Hunter Commission in its
report agreed that "there was no evidence to show that the
outbreak in the Punjab was part of a pre-arranged conspiracy
to overthrow the British Government in India by force."
However, at present, thousands of Sikh youths are imprisoned
in various Punjab jails in the country on the charges of
waging of war against the Government--entirely on the basis of
one-sided version. The Government of the free India does not
even see the need of some impartial agency to investigate into
Punjab disturbances on the lines of the 'Hunter Commission'.
The Indian
National Congress held its next annual session at Amritsar on
25 December 1919 to mark its protests against Punjab
atrocities. However, at the same time, King of England issued
a Royal proclamation which announced political amnesty and
expressed admirable sentiments. "So far as possible", King
George Vth had declared, "any trace of bitterness between my
people and those who are responsible for my government should
be obliterated." The Royal Proclamation came as a balm to the
assembled leaders at Amritsar. They expressed their 'humble
appreciation' of the Proclamation.
"This is a
document", affirmed Gandhi, "of which the British people have
every reason to be proud and with which every India ought to
be satisfied."
But now in
free India, on comparison, the attitude and actions of our
present rulers seem to be worse that those of the British
Government in relation to Punjab. In spite of the recent
Rajiv-Longowal accord, thousands of innocents are languishing
in different jails in the country, and the cases of the other
thousands of innocents are simply going to be transferred from
special courts to the ordinary courts. This second gesture of
transferring cases from special courts to the ordinary courts
has not much meaning in effect because the period of keeping
an accused in detention for one year without submitting
challan was soon going to be exhausted in a month or so in
most of the cases and a large number of them were
automatically likely to be released because of the failure of
the police in submitting challan within the prescribed time of
one year.
It is also
worth mentioning that before deciding not to extend the term
of the Terrorist Affected Areas (Special Courts) Act, 1984
(this does not effect the pending cases) beyond July 1985 the
Government armed itself with another repressive measure i.e.
The Terrorist and Disruptive (Prevention) Act, 1985 in May,
which contain similar draconian provisions as in the former
Act. In the latter Act, the Special Courts are going to
function under the label of 'Designated courts". Moreover,
another dreadful Black Law i.e. National Security Act, still
hangs over the heads of the people like the Sword of Damocles.
While
discussing constant attempts of the Government to use such
Black Laws for continuous repression of the people, one old
man remarked:
(NASHEMAN
PAR NASHEMAN IS KADAR TAMIR KARTA JA, KI BIJLI GIRTE GIRTE
KHUD BE JAR
HO JAYE)
You go on
building your mansions in such a manner, that the thunderbolt,
after repeated attacks, becomes tired and exhausted.
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