Last year, a TADA Special Court sentenced 14 people to life imprisonment in the case of an incident dating back to 1988, where a policeman and three people were killed in an exchange of fire at Bhadasi, Jehanabad. Although there was no evidence linking them to this incident, the 14 convicted include several CPI(ML) leaders as well as those who were mere children in 1988. Although TADA stands discontinued, and the Bihar Government publicly opposes laws like TADA and POTA, it has had no qualms about using the long-standing TADA case to settle political scores with CPI(ML). It is notable that TADA cases in Bihar against a range of criminals and feudal goons have been withdrawn by the RJD Government, even as it continues to pursue this case against ML activists and leaders.
The TADA Court judgement was appealed in the Supreme Court, and eminent jurist Shanti Bhushan argued the case. Shockingly, the Supreme Court Bench of Justice Arijit Pasayat upheld the conviction under TADA, disregarding the total lack of evidence linking the 14 defendants to any activity that could remotely fall under the definition of terrorism. Instead, in a highly contentious manner, the SC verdict takes the opportunity to ‘define’ terrorism and by implication suggest that draconian laws like the discontinued and discredited TADA or the present POTA are needed to tackle terrorism, since it is “beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law”. In the current international climate, where powerful nations are invoking the bogey of terrorism to justify systematic human rights violations, and many countries from the US to India have introduced ‘counter-terrorist’ laws which target political dissent and people’s movements by branding them as terrorist, the implications of this SC judgement are particularly disturbing. If, as the judgement indicates, the activities of the popular mass organisation IPF in 1988, of which the 14 were activists, were ‘terrorist’, it means that any and every mass organisation or democratic movement can be branded as ‘terrorist’ too. For the highest Court in the land to link popular mass leaders of a legal organisation to ‘terrorism’, defined as ‘the peacetime equivalent of war crime’, is highly disquieting and bodes ill for basic human rights. The question arises, when political dissenters are falsely targetted as ‘terrorists’ by the regimes and governments they oppose, can’t they expect justice even in the highest court?
Liberation discussed the case with Supreme Court Advocate Prashant Bhushan, who is closely involved with helping the convicted to file a review petition in the Supreme Court. We reproduce here the text of the interview.
Excerpts from the Supreme Court verdict
"A ‘terrorist’ activity.....is in essence a deliberate and systematic use of coercive intimidation.
It is a common feature that hardened criminals today take advantage of the situation and by wearing the cloak of terrorism, aim to achieve acceptability and respectability in the society...As noted at the outset, it is not possible to precisely define “terrorism”. Finding a definition of “terrorism” has haunted countries for decades. The UN member States still have no agreed-upon definition apparently on account of what at times reveal to be state sponsored terrorism, both at national and international levels.... The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international counter measures. Cynics have often commended at national and international levels that one State’s “terrorist” is another State’s “freedom fighter” and that too with the blessings of those in power. ...In order to cut through the Gordian definitional knot, terrorism expert A. Schmid suggested in 1992 in a report for the then UN Crime Branch that it might be a good idea to take the existing consensus on what constitutes a “war crime” as a point of departure. If the core of war crimes – deliberate attacks on civilians, hostage-taking and the killing of prisoners – is extended to peacetime, we could simply define acts of terrorism veritably as “peacetime equivalents of war crimes”.
....Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilized and orderly society... the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government and disturb the harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquility of the society and create a sense of fear and insecurity.
In the aforesaid background, the inevitable conclusion is that the appeals are sans merit and deserve dismissal, which we direct."
Liberation: On what basis has the Supreme Court upheld the conviction of the fourteen people of Bhadasi village, Jehanabad, under TADA?
PB: The verdict contains just two sentences which indicate justification for conviction for a terrorist offence. One refers to the “printed materials, i.e. literature seized”, which “clearly indicates” their involvement in terrorist activities covered by TADA. Another asserts that the appellants participated in an assembly which was “unlawful due to the presence of a huge quantity of arms”.
Lib: What would you say about the implications of inferring ‘terrorism’ on the basis of political literature?
PB: The nature of the literature seized is Marxist literature and leaflets of the organisation to which many of the appellants belonged – the Indian People’s Front (IPF), which was a legal organisation with several MLAs and MPs. To infer that such Marxist and democratic political literature is proof of terrorist involvement is quite disturbing. It threatens the basic democratic right to political expression and organisation, and may provide legitimacy for political vendetta and muzzling of dissent.
Lib: How valid is the assertion that the TADA accused possessed sophisticated arms?
PB: The weapons, according to the police's own admission, were recovered from the scene of the incident, whereas the accused were arrested from elsewhere; some from near the singada(waternut) pond, and some from their own homes. This is substantiated by the fact that the prosecution could produce no evidence whatsoever that the weapons had been seized from the appellants. Despite repeated reminders in the TADA Court itself, the prosecution failed to produce a copy of the original seizure list of arms. Their witnesses gave conflicting accounts of who, actually, had prepared the seizure list that was eventually produced. It emerged that this list was prepared by the sub-inspector of Arwal PS, who was neither part of the original raiding party nor was a prosecution witness. So there was no witness who could state that they had in fact seized the said arms from the possession of the accused. In fact, of the total 25 Prosecution witnesses, not one of the 10 ‘star’ witnesses – namely the investigating officer and members of the raiding party – stated that the accused carried arms. So the SC verdict’s heavy reliance on the ‘evidence’ of possession of contraband literature and arms is quite baseless and misguided.
Lib: What are the other flaws in the prosecution story?
PB: The counsel for defence had pointed out that even if one assumes that an ‘unlawful assembly’ took place at the house where the incident is said to have occurred, there is no evidence that the appellants were actually part of it. In fact, two of the appellants had not even been named anywhere by any prosecution witness. The original contention was that the incident had occurred in the house of one Vakil Ram, whom the police claimed had been arrested from his house. In the TADA court itself, it was established that the house in question did not belong to Vakil Ram, and that far from being arrested, he had surrendered a few days after the incident. Vakil Ram was acquitted, but not before he had spent 15 years in jail as an undertrial.
Those who were convicted have asserted that they were not present at the said house; rather, on that date, they had assembled at their singada pond in the same village, apprehending danger from higher castes who had been threatening to harvest the singada crop. The SC verdict instead mistakenly infers that the appellants’ plea was that “the place of occurrence was different”. It then dismisses this plea, asking why, if they were merely guarding the crop, did they fire at the police force instead of welcoming it! It does not address the defendants assertion that they were not present or involved in any incident of firing at the police party.
Further, the prosecution witnesses who were part of the police raid admitted that most of them had never, before the raid, visited Bhadasi, or seen any of the accused. Despite this, they are supposed to have identified and positively recognised that it was the defendants and no other, who were the ‘extremists’.
It is also interesting that some of those who face life imprisonment for ‘terrorism’, have in fact been felicitated for their social work for the village community by none other than government authorities. For example, Jagdish Yadav is known and respected as a social worker, and has been publicly felicitated for his educational and social concerns. Shah Chand, elected ‘Mukhiya’ of Bhadasi, received a certificate from the DM as the ‘best mukhiya’, especially for his contribution to canal irrigation in the village. There is no evidence whatsoever that any of these people have a record of violence or anti-social activity.
Lib: What do you feel this decision of the SC to uphold the TADA court judgement, implies for our society?
PB: This verdict is not only a serious miscarriage of justice resulting in punishment for innocent people. It also has highly disturbing implications for human and democratic rights. It’s a precedent that can be used to legitimise the increasing trend of using ‘terrorism’ as an excuse to violate fundamental rights and freedoms. What is most dangerous is the way the verdict uses this case as an exemplary instance of 'terrorism'. The Court does not at any point state that the defendants planned to terrorise people or overawe the State. It condemns them as 'terrorists' simply because they are alleged to have clashed with the police. Going by such a logic, anyone who happens to cross the police - be it an ordinary criminal or a political dissenter, can be branded a 'terrorist'. For instance, take a very common situation, where people at a peaceful dharna are lathicharged or fired at by the police, and retaliate with any kind of resistance. According to the logic of this judgement, they can be called terrorists! This is precisely what laws like TADA or POTA are intended to do - erase the vital difference between democratic protest and terrorism. And this verdict, as it stands, does the same thing.