Democracy and Anti-terrorism Laws

This is a story of abduction, arrest, torture and acquittal of three prominent leaders of mass organisations in Punjab. They were arrested by the Punjab police under various sections of the Unlawful Activities (Prevention) Act, 1967 (UAPA) within a span of seven months (November 2009–May 2010). They were accused of being “dreaded Maoists.” According to the first information report (FIR) number 94, dated 18 November 2009, Surjit Singh Phul, state president of Bharatiya Kisan Union (Krantikari) (BKU [Krantikari]), was arrested on 18 November 2009 from inside the premises of a lower court at village Phool in Bathinda district on the information received through an “informer,” that he

has deep relations with CPI (Maoist) and is actively participating and supporting its armed struggle in Punjab and other states ... He is instigating the youth to join the CPI (Maoist) ... He has arranged meetings in Punjab of the leaders of CPI (Maoists) ... This organisation is actively working in anti-government activities by way of armed struggle. It is working to topple the government by unconstitutional means ... These crimes of his, amount to under sections 10/13 of UAPA. After receiving ... information, an ASI (assistant sub-inspector) along with other policemen went to search for him. When they reached bus stop at Phool, a person bearing turban and holding black … bag was coming ... He was caught with the help of fellow policemen. On inquiry, he identified himself as Surjit Singh.

As per FIR number 65, dated 1 May 2010, Dilbagh Singh, leader of Krantikari Pendu Mazdoor Union (KPMU), was arrested on 3 May 2010 from Zira in Firozpur District of Punjab. The FIR further stated:

[On 1 May 2010] SI [sub-inspector], police station Zira along with other policemen, saw some people were reading a poster pasted on the wall near the gate of grain market in Zira. The posters were saying ‘Oppose operation green hunt and anti-revolutionary war started by Indian ruling classes’; ‘hail the struggle against this war led by CPI (Maoist)’; ‘Let us unite to fight against the bloody battle waged under guidance of imperialist forces and to strengthen the ongoing peoples’ wars in various forms.’ The contents of posters are making very clear that it is an attempt to wage war against the government of India ... to instigate riots and ... to incite the people against the government ... The charges were framed under sections 121-A and 153-A of IPC against unknown people as no one caught red handed while pasting these posters. On 3 May 2010, SI and other policemen were patrolling when they saw a man putting up posters. He was caught hold of with the help of other personnel. Being asked about his identity, he revealed his name as Dilbagh Singh … After searching his bag more posters were recovered. And sections 10 and 13 of UAPA, 1967 were added into the charges.¹

In the case of Sanjiv Kumar Mintu, state president of KPMU, FIR number 57, dated 16 May 2010, stated that:

As per an informer, Sanjiv Kumar Mintu is active member of Maoist movement [organisation] banned by the government and doing propaganda and inciting people against the government. He is going to village Benra [district Sangrur] in same regard and can be apprehended on the road outside the village. The literature against government and diaries would also be recovered from him. The information is reliable and true. These activities of Sanjiv Kumar come under purview of sections 10, 13, 17, 18, 19 of UAPA, 1967. So, according to the police he was arrested on the road leading towards village Benra.²

But all the three respondents contradicted the versions of the police and accused the police of gross illegalities. They charged the police for violating every possible rule and law, and for literally abducting them. Phul claimed he was abducted by the police on 17 November 2009 from the premises of the lower court at village Phool in district Bathinda. He had come to the court, along with 17 other “accused,” in a case related to dharna by different factions of the Bharatiya Kisan Union (BKU). Phul recounted:

Around 25–30 police personnel were present inside the court premises in civil dress. They had placed barricades on almost all entry and exit points at nearby villages. As per a rough estimate, there were around 150–200 policemen present in that area. Ironically, I was completely oblivious of this plan. In the morning, we attended the court. The judge marked our presence and asked us to come back after lunch. I along with another peasant leader came out of the court room for having a cup of tea. This was when the police personnel caught hold of my collar and tried to force me into a jeep. I was taken aback for some time. But I started raising slogans after regaining my poise. A crowd began to gather and the police feared that members of peasant organisations might turn up and the situation could go out of hand. They dragged me into the vehicle. When I resisted their efforts, they started beating me. They drove the vehicle over a long stretch with the back door open. After they were sure that no one was chasing them, they stopped the vehicle and told me to sit properly. Only when I saw the SHO [station house officer] of the police station of village Phool did I realise that I had been abducted by the police. After a long journey which involved change in police staff accompanying me, I was taken to the police station of village Naianwala [in district Bathinda]. The police were worried about the mobilisation of peasant and labour organisations. This would have meant trouble for them. They decided to announce my formal arrest the next morning. I was charged under UAPA, 1967.

According to Singh, he was picked up around 9 pm on 30 April 2010, from a police barricade placed near village Sekhvan in Firozpur District. He recollected his ordeal:

I was stopped at the barricade and forced to sit inside a police vehicle. Around 9:30 pm, I was brought to the police station at Zira. Next morning, members of my family and labour and peasant unions came to the police station to inquire about my whereabouts. But the SHO feigned ignorance and refused to pass any information. They had to return empty handed, though I was locked up at this very police station on directions of this very SHO. I was kept in illegal custody and tortured brutally for almost three days in the police station at Zira, and produced in front of the court on 3 May 2010.³

According to Mintu, he was picked up from a house of a member of his labour union in village Benra, in Sangrur District. According to him:

On 16 May 2010, 7–8 policemen in plain clothes barged into the house and asked me to identify myself. After I did so, they dragged me outside the house and pushed me into the vehicle. My wife, 4–5 months pregnant at that time, tried her best to stop the vehicle. They took me to Ladha Kothi in Sangrur district.

Talking about this incident, his wife, Bimla Devi, says:

I caught hold of the arm of one of the policemen and did not allow him to close the back door of the vehicle. But they started the vehicle and I ran along. I kept asking them who they were, why had they apprehended him and where were they taking him. No one responded. While running, my foot got struck and I fell down. The fall could have hurt the child I was bearing. That was none of their concern. They did not stop the vehicle and drove him away. As the news of his abduction spread, people started gathering in the village. I, along with other members of labour and peasant unions, came to the police station at Dhuri [Sangrur district] but the SHO feigned ignorance about the incident. Then we gheraoed the residence of the DSP [Deputy Superintendent of Police] but he also refused any information. The next day, I along with other activists came to court in Chandigarh [Punjab and Haryana High Court, Chandigarh], to file a habeas corpus petition. While they were briefing the lawyer, the police rang me up to inform that he has been arrested andthey would produce him in the court.⁴

In the above three cases, the police did not bother to intimate family members of the detainees of their whereabouts and the provisions of the laws under which they were arrested. The repeated attempts of families and members of various unions were of no avail. The police kept lying. All the provisions, related to the manner of effecting arrest and safeguarding the interests of the detainees, under the different sections of the criminal procedure code (CrPC) were violated.

Torture and Ghost Detainees

Going by the versions of the detainees, all of them were what John T Parry (2005) has called “ghost detainees.” They were apprehended for a period ranging from one day to three days. Parry used this term to refer to so-called “ ‘high value’ detainees,” who were “held ‘off the books’ in unknown locations” by the Central Intelligence Agency (CIA) and other intelligence agencies. If somebody is a “ghost” and “held outside the protections of any applicable and enforceable legal regime, one is already separate from one’s body, not to mention from one’s family, community and other support networks” (Parry 2005: 533). These detentions, at undisclosed locations, by definition are “hidden, exceptional and dominating.” This situation makes the detainee very vulnerable to torture.

Jurisprudence of Interrogation

According to Phul, rather than produce him in front of a regular court the police took him to the residence of a lower court judge in Bathinda at 6 AM. Phul had been abducted by the police from outside this very judge’s court. Countering this illegality, Phul reminded the judge about the legal rights of the accused and the right to be represented by the lawyer of his choice. But the judge responded that “he himself was no less than a lawyer and does not need any legal help.”

Rather than reprimand the police, he signed the remand papers prepared by the police and sent Phul to nine days in police custody at the Joint Interrogation Centre (JIC) in Amritsar. For the second remand, the police did not seek permission from the same judge/court, instead it placed the application in front of the sessions court at Bathinda. The plea was that of “an apprehension of violence and attempt to free the accused from custody as certain unions have given the call for seizing Rampur Phool court.” The sessions court ordered the chief judicial magistrate (CJM) to conduct the remand proceedings. Phul recalled:

I was made to sit outside the court room. After sometime policemen came out and told me that the remand has been extended. They asked me to sign certain papers. I refused and insisted they produce me in front of the judge. They were left with no option but to take me inside the court. I was hardly able to walk. Even then the judge responded as if I was healthy and fit. I said that the police have already taken a remand of nine days during which I was brutally tortured. My body was torn apart. Why are they asking for more remand? Did they want to kill me? Ironically, the judge responded that if I am telling the truth and have committed no crime, I must not fear anything.

Asked about legal rights, the judge pointed to a lawyer standing close by. Phul refused to accept him as his lawyer, but that made no sense to the judge. The remand was extended for another seven days while his lawyer and union members were waiting at the lower court in Phool, oblivious of this illegality.

Singh shared a similar experience. The judge ignored his physical condition and instead relied on the “brilliant” paper work of the police and the doctor. He was placed on five days’ police remand. Mintu was sent to police remand for nine days.

As they were labelled Maoists, the issues of violation of legal and human rights—when it came to the nature of arrest, illegal custody, and torture—became irrelevant for the criminal justice system. The police and other intelligence agencies, while fighting the “war” to safeguard Indian “sovereignty” and “integrity,” need not follow or abide by the rule of law as the judiciary looks the other way.

Confirm and Inform

According to the respondents, the questions they were asked were aimed at ascertaining if they were part of the Communist Party of India (Maoist) party. The police officials started their interrogation with the presumption that they all were “hard core Maoists.” The interrogation was aimed at confirming this presumption and extracting more information. The “questions put to the accused under torture were ritualised and formulaic, asking for no more than an acknowledgment or confession of guilt... Their questions were prepared in advance... the interrogation was a fully anticipated and carefully orchestrated event” (Silverman 2001: 84).

The DSP began the interrogation by telling Phul that he is one of the main leaders of CPI (Maoist) in Punjab and a number of central level leaders of the party had met him in the past. The DSP said that as per his understanding the central level leaders usually do not meet the lower cadre or any other person, implying thereby that Phul was an important leader in Punjab. Phul recalled that the DSP asked him “what his position in the party was, the details of the party’s organisational structure in Punjab, the number of camps he had attended, both inside and outside Punjab, names of the leaders who had come to meet him, names of places where he accompanied them.” The interrogation of other respondents also began along the same lines.

Inverting Agency and Consent

The responsibility of the torture was squarely put upon the person under detention. The interrogators begin by warning the accused that he/she must confess and provide the information asked for. John Parry (2005: 525) has rightly argued that the agency held responsible for inflicting torture is not the torturers but that of the victims themselves. They are responsible for forcing the interrogators to resort to inhuman and degrading treatment. The responsibility of the consequences must also be owned by the victims. If they resist, there will be more torture as they had provoked the torturers. But the brutality does not end here, and one must add that if the victim provides some information she/he will be tortured more under the assumption that inflicting more pain will lead him/her to yield more information.

Clean Torture’

At the end of the conversation, Phul put forward an analogy: his tortured body was like a pack of biscuits in which the outer wrapper remained intact, neat, clean and even glossy, but the biscuits inside were broken into pieces. The torture may leave no mark on one’s body. The skin would look like the wrapper of the pack of biscuits but the person in question would be broken from inside. His/her muscles would have been torn apart and bones and joints disjointed, and the person completely shattered. But she/he will look fit and fine for the outside world, including the criminal justice system. Singh went through the same ordeal. It resulted in severe damage to his lower back and left ear, which had be operated upon after he came out of jail. Mintu was tortured through use of sleep deprivation techniques and kept awake for eight consecutive days during his interrogation.

Phul’s use of the biscuit wrapper analogy brings to fore what academicians like Darius Rejali (2009: 3) have called as “clean torture” or “stealth torture,” in which the torturer knows how to beat a suspect senseless without leaving a mark. The author elaborates extensively upon the fact that rather than abolishing the practice of custodial torture, democracies have evolved new methods and techniques to hide its existence. He argues that “there is a long history of torture in the main democracies,” which shows “clean tortures and democracy seem to go hand in hand” (Rejali 2009: 8). These techniques have been adopted in order to hide the existence of torture, in order to reduce the credibility of evidence of torture in the eyes of the law.

After being labelled as “dreaded Maoists” and having faced severe mental and physical torture, the cases against the people who talked about fell flat in the court of law. In the case of Phul, severely tortured at the JIC, Amritsar, the police failed to even get the permission to prosecute him under Sections 10 and 13 of the UAPA, 1967. He was later acquitted in a simple case under the Arms Act. Singh and Mintu were also acquitted.

Notes

1 The second FIR number 330, filed on 8 May 2010 against him at police station Kotwali Bathinda, has similar contents. But its fallacy was exposed by the fact that he could not have pasted the posters as he was already in the custody of Zira police.

2 In his case, a second FIR number 138, dated 20 May 2010, was filed at police station Kotwali Barnala.

3 Till his formal arrest, a number of unions had written to the Subdivisional Magistrate, Zira; Deputy Commissioner of Firozpur District; Chief Justice of Punjab and Haryana High Court; Punjab State Human Rights Commission and National Human Rights Commission accusing the SHO of Zira police station for keeping him in illegal custody and committing torture.

4 She, along with other unions, has also written to the Deputy Commission of Sangrur District, Director General of Police, Governor of Punjab and Punjab State Human Rights Commission, for an effective intervention to save the life of Sanjiv Kumar.

References

Parry, John T (2005): “The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees,” Melbourne Journal of International Law, Vol 6, No 2, pp 516–33.

Rejali, Darius (2009): Torture and Democracy, New Jersey: Princeton University Press.

Silverman, Lisa (2001): Tortured Subjects: Pain, Truth, and the Body in Early Modern France, Chicago: The University of Chicago Press.