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From: adv sudha <[email protected]>
*ANOTHER CASE OF ARREST FOR VAGUELY DEFINED OFFENCES UNDER THE DRACONIAN
CHHATTISGARH SPECIAL PUBLIC SAFETY ACT.*
**
Pawan Verma was a worker - an expert cook in the Canteen and VIP Guesthouse
of the erstwhile L&T Cement, now Ultratech Cement plant at Hirmi, district
Raipur, Chhattisgarh. A few years ago, fed up with the anti-worker attitude
of the management, he took voluntary retirement and lives in village Hirmi.
I have known him ever since I fought cases for his union Pragatisheel Cement
Shramik Sangh.
Recently he contacted me after it was published in the local newspapers that
his daughter Ruchi Verma and her husband Bhola Bagh (both under 30 years of
age), and their one-and-a-half year old son had been arrested under Section
8(1) (3) and (5) of the Chhattisgarh Special Public Safety Act (CSPSA). It
was alleged that a "Naxalite woman" had confessed to the police that she
had put up for a short while with the couple. Section 8(1) of the CSPSA is
the penalty for being the member of an unlawful organisation, while 8(3) and
(5) concern managing or aiding such an organisation..
Along with Pawan Verma, I went to visit Ruchi Verma in the women's section
of the Durg jail. Any person who goes to meet suspected "Naxalites" or
"Sanghams" (Naxal supporters) is asked to supply proof of residence, is
photographed and even conversations with lawyers have been directed to be
taped by confidential circulars. Accordingly we were photographed.
Ruchi revealed that she, her husband and their baby had been picked up at
11.30pm from their house on 9th February. She said nothing whatsoever, and
certainly nothing incriminating had been seized from their house or person.
They were taken to the Nevai Thana of Durg and then to the Bhilai Bhatti
Thana, where she said they were repeatedly beaten and threatened and
interrogated. After this the family was seperated. She and her son were
taken to the Mahila Thana in Durg and kept there for 8 days before they were
finally taken to jail on 18th February. They were kept in the police van
while the formalities were carried out of producing them before a
magistrate, she did not get the opportunity of conveying that they had been
illegally detained for 8 days.
She expressed the desire that she wants to convey this fact to the
magistrate. But on most remand dates they were not brought to court. And
on 30th March when they were brought to court, the magistrate was
unfortunately on leave.
An undertrial is under the care of the court. Surrounded by the usually
hostile environment of the jail and police authorities, his production
before the magistrate is his only contact with the outside world. It is the
concrete expression of the constititional scheme of seperation of the
judiciary from the executive, and the only remedy of the undertrial against
arbitrary, illegal or otherwise colourable exercise of powers.
Bhola Bagh, Ruchi's husband, originally hails from Orissa and was a contract
worker in the Ultratech Cement plant at Hirmi. A skilled person, popular
among his co-workers, he was active in the workers struggles against the
management of Kumarmangalam Birla. Pawan describes how at that time the
issues of the management refusing jobs to the peasants of the surrounding
four villages who had given their lands for the plant, the use of contract
labour in the cement production process which is prohibited by the Cement
Wage Board agreement, and the non-payment of minimum wages were burning
issues of the workers movement. Bhola took active part in the meetings and
strikes. The management brought in about 250 lathi weilding goons from
outside and kept them in the factory premises and used them to attack
workers. On one occassion these goondas had even abused local women. At that
time some of the workers led by Bhola had snatched their lathis away from
them and had literally pinned them to the ground. After this the company
management had got after Bhola and other active workers filing endless
criminal cases and chargesheets. He was also repeatedly threatened, which
led to his finally leaving a couple of years ago. Also in the meanwhile,
Bhola and Ruchi had also decided to marry, despite being of different castes
and regions. This had also generated some tension in the extended family and
caste society. So the couple left and Pawan practically lost touch with
them.
It appears that Bhola was working as a contract worker in the Bhilai Steel
Plant when he was arrested. Today around 50% of the workforce in the public
sector Bhilai Steel Plant is contract labour, something patently illegal.
Although the paper work might be impeccable, but the reality is that for the
same work a contract labourer is actually paid Rs 50/- a day (for
non PFdeducted!) and Rs.150/- (for PFdeducted!) for the same work for which
a permanent worker gets almost Rs.350/- a day. Many of these contract
labourers have been working for decades without regularisation, yet the
sword of "hire and fire" hangs over their heads if they protest even a
little. Given the personality of Bhola Bagh, it is not surprising if he had
also been involved in organising contract labour in the plant. Perhaps this
is the real reason behind his arrest?
These young people have already been in jail for over 60 days and the
maximum penalties under the said Section 8(1) (3) (5) of the CSPS Act are
all below 10 years. No chargesheet has so far been filed. It is apparent
that the police have acted in a hurry based on a confession extracted in
police custody which is legally inadmissible, and are finding little
evidence to corroborate their charge. There is also talk that some sections
with graver punishment have been sought to be applied, without any basis,
only to extend the permissible period for filing of the chargesheet.
This case again brings to the fore the draconian nature of the provisions of
the Chhattisgarh Special Public Safety Act. The absence of the ingredient
of intention ("mens rea") in defining an offence of association or aiding or
managing or propogating an unlawful organisation - that is, not
distinguishing between an act knowingly and unknowingly done; and also
making any association whatsoever criminal including that of doctor and
patient, lawyer and client, journalist and interviewee, shopkeeper and
customer, house owner and tenant, or human rights defender and undertrial.
In fact, some sections of the TADA had been declared ultra vires and
unconstitutional in the past for the absence of mens rea by the Supreme
Court, and the lacunae in this Act go a step further.
Another extremely serious aspect of the CSPSA is that the definition of
unlawful activity is not confined only to offences connected to the security
of the state, secession or terrorist acts, which are considered to impose
reasonable restrictions on the fundamental rights of association, assembly
and expression. They include even peaceful opposition otherwise included in
the Indian Penal Code as offences against the public peace and tranquility.
The vague definition of "organisation", the refusal to professional legal
representation to an unlawful organisation, and the provision which does not
accept the formal dissolution of an organisation or resignation from
membership upon an organisation being declared unlawful, amounts to being
punished even for acts which were not criminal when they were carried out.
Perhaps the fact that the aims and objects of the Act presented by the Home
Minister of Chhattisgarh also include "opposition to development" may hold
the key as to why offences have been defined so vaguely and yet sweepingly.
The Peoples Union for Civil Liberties has challenged the constitutionality
of this Act in the High Court of Chhattisgarh at Bilaspur. The writ petition
has been admitted and the State has been asked to file its reply within 4
weeks.
A total of more than 70 persons have been arrested so far under this Act
which include doctors, a lawyer, journalist, film maker, shopkeepers,
tailors, and a large number of villagers accused of providing food and water
to Naxalites, or "showing the forest paths" to Naxalites. A number of
persons allegedly of a Naxal cultural troupe (Jan Natya Mandali), but
according to local persons who are folk performers at melas have also been
arrested. This case of a contractual worker and erstwhile trade union
activist is one more addition to the list.
It is high time such a draconian law was taken off the statute book.
Sudha Bharadwaj
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