Thursday, August 30, 2007

Are We A Police State?

Are We A Police State?

King Friend forwarded me a letter written by Justice H Suresh regarding "illegal arrests, torture and public statements by the Anti-Terrorist Squad, Mumbai." Most of us would be inclined to ignore this case, because it involves alleged naxalites—but pay closer heed to that word 'alleged'. I'm reproducing the letter in full below the fold—do read it all—with one question: Is a society where due process of law is not followed a lawless society?

Sub: Illegal arrests, torture and public statements by ATS Mumbai with regard to Shridhar Shrinivasan, Vernon Gonsalves and Adv K D Rao

We are deeply concerned at reports from the lawyers, family members and friends of Shridhar Srinivasan, Vernon Gonsalves and advocate K. D. Rao, who were arrested on August 19 and 20, 2007, in Mumbai by Anti-Terrorist Squad (ATS) Police. The gist of their claims is as follows:

1. These persons have been arrested for their political convictions rather than any specific unlawful activity. Rao is a practicing lawyer and an office bearer of Indian Association of People's Lawyers (IAPL) who has been in Mumbai from 2003. The families of these detainees were not informed of their arrests by the ATS police. Shrinivasan was arrested outside his house in Govandi and Gonsalves was arrested from near his house at 1.30 p.m. on August 19 from a busy public road. Almost 12 hours later at 12.30 a.m. on August 20, Gonsalves was brought to his house where an illegal and unauthorized `raid' was carried out till 7 a.m. in front of Susan Abraham, his wife who is a practicing lawyer and activist and his 12-year old son. Rao was arrested at 9 p.m. on August 20 from outside YMCA where he had gone to visit Adv P A Sebastian.

2. Shridhar and Vernon were subjected to torture which was recorded by the magistrate. In court, the injuries on the accused, and their inability to stand up in court, have been ascribed to such improbable causes as their struggle at the time of arrest, to arthritis osteoporosis - conditions the detainees were suffering from which got aggravated due to the torture. They have had to undergo prolonged hours of interrogation for days together.

3. In the case of Srinivasan and Gonsalves, the ATS claimed to have found arms and ammunition from the former's house in Govandi. However, no panchanama was produced for these items, and the accused denied ATS claim in Court. On the first date of regular remand, court gave permission for the destruction of the arms and ammunition because of which the detainees have been denied the scope to challenge the central evidence on which the police case rests.

The above account carries credibility, as we have been following this case in the press. The police have informed the media that the accused were plotting terrorist activity, such as carrying out bomb blasts throughout Mumbai. The police have plans to implicate them in murders and other such acts. These unsubstantiated claims have been given wide publicity, amounting to trial by the media.

Even more disturbingly, the police have announced that they are preparing dossiers on 75 persons and "will take action soon" ("Naxals involved even in murder, claims ATS", Times of India, August 23, 2007). These 75 persons have committed no offence but are deemed to be sympathetic with the cause of the accused.

Moreover, the police say that "Over half a dozen lawyers are on our radar" in connection with this case, "but we cannot arrest them if there is no offence against them" (ref. the same Times article). Such a statement serves to intimidate lawyers, who are officers of the court, from performing their duties. The arrest of advocate K. D Rao is a chilling reminder of the seriousness of the police threats. We have not forgotten the statement by a senior police officer, at the time of the arrest of Arun Ferreira and others in Nagpur in May 2007, that he would take action against any persons who are taking up the case of those accused.

It is public knowledge that suspects are rounded up, taken to the police station and kept there unlawfully for days together, in order to extract confessions by torture, threats and other illegal means such as narco-analysis. It is a fundamental constitutional principle that confessions extracted by the police are not admissible in law. It is also a Constitutional mandate that no one can be compelled to be a witness against himself.

Another fundamental constitutional principle is the presumption of innocence of an accused until proven guilty. Very often, the police issue statements to the press and media that the person so arrested is a "terrorist" or "has planned to commit serious offences" etc. proclaiming to the world that he is guilty of the offence. While the police have the right to investigate, they have no right to make public statements about the guilt of the accused.

Often when the accused refuses to make statements according to the wishes of the police despite being subjected to torture, the police approach the court for permission to have narco-analysis test performed. This was done in the case of Arun Ferreira and Murali. We are of the opinion that a narco-analysis test is itself a form of torture, and we were shocked that one of the television channels displayed the entire procedure of extracting statements through narco-analysis. This was in fact, a public display of torture.

We condemn the methods and the means which is followed by the ATS and other special cells, as if they are not bound by the law and as if they had a separate law for themselves. We want to emphasize that there is no special law for the ATS or any special cell in the matter of arrest and search and in the matter of legal rights of the accused.

Against this background, we demand that the state government intervene to ensure that torture and all the illegal methods listed above are not employed on the arrested persons and that false cases are not foisted on them. It should ensure that the police do not harass and threaten persons who have not committed any offence simply on the ground that they are suspected of holding certain political beliefs or sympathies. It should stop the police from threatening lawyers who are representing the detainees.

In a word, the state government must intervene to uphold the rule of law and ensure that the law meets the needs of justice.

-- Justice H Suresh

Justice Suresh and some others will speak at a press conference on the subject at 3pm tomorrow (August 31) at Mumbai Marathi Patrakar Sangh Hall, near Azad Maidan, Mumbai. In case you're interested…

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