Lawyers fighting cases of accused Maoists face Harrasment

Lawyers who represent terror suspects often end up being seriously harassed, discovers Sonia Sarkar

Backlash: Lawyer Anjali Waghmare, whose house was attacked after she took up the case of Ajmal Kasab, the prime accused in the 26/11 Mumbai terror attack

Director Anurag Kashyap’s forthcoming film Shahid, which tells the story of slain lawyer Shahid Azmi, is set to be screened at the Toronto Film Festival next month. Around the same time, Azmi’s lawyer brother Khalid will be fighting for justice for him before the Bombay High Court.

Shahid Azmi was shot dead by three gunmen in his chamber in a Mumbai suburb in 2010 — two years after he took up the case of 26/11 co-accused Fahim Ansari. He had also represented many Muslim boys accused of being involved in the Ghatkopar blasts (2003), Malegaon blasts (2006) and Mumbai’s 7/11 (2006). That’s not all. Azmi had taken up the cases of 64 suspected operatives of the Indian Mujahideen (IM) involved in the Ahmedabad terror strikes in 2008.

“Four months before his death, he told me that there would be attempts to murder him. But he continued to fight for the accused,” says his brother Khalid Azmi.

Shahid Azmi is not the only one who has suffered — in his case with fatal consequences — for having chosen to defend terror suspects. In fact, such is the backlash against them — from society, from fundamentalist groups and even from the police — that getting a lawyer to represent those allegedly linked to terrorist and Maoist activities is becoming more and more difficult.

Take the case of Abdul Shakeel Pasha, who was arrested in Delhi in 2010 on charges of alleged links to Maoists. He languished in a Surat jail for three months before senior advocate Kirit Panwala came to his rescue.

“Before Panwala, four lawyers refused to take up the case,” says Pasha, who runs a non government organisation called Haq in Delhi. Though he got bail six months after his arrest, his case is still on.

Section 304 of the Code of Criminal Procedure lays down that the state shall provide legal aid to the accused in certain cases. But experts point out that in most cases, the legal aid provided to terror suspects is perfunctory. “Often, lawyers don’t take the trouble of meeting the accused in jail. They barely investigate the case and the accused do not get a fair representation in court,” says Bilaspur-based senior advocate Sudha Bharadwaj.

Of course, one reason for the lack of interest in representing these undertrials is that the state pays a pittance to defence lawyers — a sum of Rs 1,500 to Rs 5,000. “If the government can pay Rs 30,000 to Rs 1 lakh to a public prosecutor, why can’t this be paid to a lawyer who represents the accused,” asks senior advocate Colin Gonsalves of Human Rights Law Network, a lawyers’ collective that takes up human rights cases.

However, the few who do try to defend terror suspects to the best of their abilities complain that the environment is not at all conducive for them to work freely.

“Our photographs and identity cards are taken away by the police before we are allowed to meet the accused. We are treated like criminals,” says Bharadwaj.

A Human Rights Watch report titled The ‘Anti Nationals’ on the detention and torture of terrorism suspects in India released in February this year too states that when lawyers met suspects in jail “police in some cases unlawfully remained within earshot, making it difficult for the detainees to reveal abuse or seek counsel.”

In Chhattisgarh, where there are many Maoist-related cases, lawyers represent ing the accused are often harassed by the police. In 2009, one tribal lawyer, Alban Toppo, was allegedly beaten up by the police for taking up the case of human rights activist Kopa Kunjam who was arrested on murder charges.

Another senior Chhattisgarh lawyer, Amarnath Pandey, has been charged with sedition and 12 other criminal cases since 2000. Pandey had taken up a fake encounter case. “The state targets such lawyers as they don’t want the voice of the accused to be heard in court,” he alleges.

However, Chhattisgarh government spokesperson Baijendra Kumar denies these charges. “The state has no reason to target lawyers. If any illegal action is being taken against them, the state is answerable to the court.”

But charges of discrimination against lawyers who defend terror suspects are too numerous to be dismissed outright. Cuttack’s Pratima Das, who represented many villagers with alleged “Maoists” links, was arrested on charges of sedition and attempt to murder in 2008. She was acquitted only after having spent two years in jail. She has now filed a petition in Cuttack High Court, demanding a compensation of Rs 20 lakh from the state.

Harassment of such defence lawyers is common in Kashmir too. When senior advocates Miyan Abdul Qayoom and G.N. Shaheen took up the cases of young boys arrested on charges of stone pelting in 2010, both were arrested under the Public Safety Act and had to spend almost nine months in jail.

It is not state bodies alone that tend to make things tough for these lawyers. Often, they face flak from their own fraternity as well. Senior Lucknow lawyers Mohammed Shoaib and A.M. Faridi faced the wrath of their colleagues when they took up the cases of several of those accused in serial blasts in Lucknow and Faizabad in 2007. Earlier, various bar associations across UP had passed a resolution that no lawyer would defend the accused in terrorism cases.

“Lawyers called me ‘a terrorist’ and started beating me up. My clothes were ripped off and I was paraded in the court campus in my undergarments,” says Shoaib, recalling the treatment meted out to him in 2008 in a Lucknow court complex. Two years later, the Bar Council of Uttar Pradesh apologised to him in writing.

When lawyers defy such bans, they are attacked by political parties too. After 26/11, the Mumbai Metropolitan Magistrate Bar Association passed a resolution not to defend 26/11 accused Ajmal Kasab. Despite that, Anjali Waghmare took up his case, following which her house was allegedly attacked by Shiv Sainiks.

Again, in 2010 the Mumbai High Court ordered the Maharashtra State Legal Aid Services Authority to appoint criminal Lawyers Amin Solkar and Farhana Shah for Kasab. Shah was promptly labelled “anti-national” — even though he had been appointed by the court. “Many lawyers have asked me to leave the case but I didn’t because I saw Kasab as just another client,” says Shah, who is also the defence counsel for the accused in the Mumbai blasts of 1993.

A laudable sentiment. But if lawyers continue to be harassed for carrying out their professional duty, how many will have the resilience to defend terror suspects?

Is the government listening?

Source : http://www.telegraphindia.com/1120829/jsp/opinion/story_15910815.jsp#.UEzXHY3iaBp

Yesterday Iftiqar Gilani, Today Binayak Sen

By Subhash Gatade

26 July, 2007
Countercurrents.org

Does anybody remember the Delhi bureau chief of Kashmir Times, Mr Iftiqar Gilani who was hounded by the BJP government on fraudulent charges under the draconian Official Secrets Act supposedly for possessing some ‘secret’ documents. Interestingly when it was revealed that all the ‘secret’ documents purported to be in possession of Mr Gilani were easily available online, then the law and order people had no other alternative than to release him.

The world very well knows that why Mr Gilani was treated in such a humiliating manner. The only ‘crime’ the accredited journalist had committed was that he happened to be son in law of a famous Kashmiri leader.

Today the same fate awaits Dr Binayak Sen - a paediatrician by training and profession and a human rights activist by choice. This receipient of the famous Paul Harrison award for work in community health has received a new identity. - A menace to public safety - The Chattisgarh police whose own record of human rights violations would shame even the KPS Gills, has used the provisions of the draconian Chhatisgarh Special Public Safety Act and Unlawful Activities Prevention Act ( a substitute for POTA ) to detain Dr Binayak Sen in the wee hours of 14 th May. And the recent high court order has even refused him a bail.

It has been more than twenty five years that Dr Binayak Sen left his job at the Jawaharlal Nehru University, Delhi to dedicate himself to serve the poor and the downtrodden in Chhatisgarh. It was the time when a new workers- peasants movement was taking shape in Chattisgarh ( which was then part of Madhya Pradesh) under the leadership of the legendary leader Shankar Guha Niyogi. The martyrdom of more than eleven workers in Dalli-Rajhara in the immediate aftermath of the assumption of power by the Janata Party government was a news all over the country. Binayak Sen never looked back and continued working for the people despite many highs-lows of the movement. He played an important part in the formation of Shaheed Hospital at Dalli-Rajhara, a hospital run by the workers for the other downtrodden sections of society.

To further his concern for the really needy Dr Binayak donned many roles. He worked on community health projects, ran a clinic, also ran a organic farm near Raipur and was also adviser to the Chhatisgarh government for its community health project called 'Mitanin'. He found himself drawn into the fledgling human rights movement in the state when violations of human rights saw a quantum jump. But for his intervention ( of course alongwith other members of the civil liberty movement) the rest of the world would have never known the killing of twelve innocent tribals at Santoshpur by the security forces of the state supposedly to curb the Naxalite 'menace'. (31st March 2007) He was instrumental in forming an all India fact finding committee of civil liberty organisations to look into 'Salwa Judum' a campaign of arming tribals started by the government and using them as mercenaries. The report brought out by these organisations was an eye-opener. It showed how the state government has even allocated budget for this campaign which it calls a 'spontaneous response of the tribals towards the Naxalite 'menace'.

It was only last year that Dr Binayak Sen, - alongwith other civil liberty organisations and activists - had taken the initiative to organise a Convention in Raipur. The aim of the convention was to highlight the precarious human rights situation in the state, but an important item on their agenda was to focus the attention about a sinister move by the Chhatisgarh government to silence every dissenting voice. In fact Raman Singh led government had already made decisive moves in the direction of enacting a new law 'Chhatisgarh Special Public Security Act' (2006) which had several provisions similar to the (now lapsed) draconian POTA.

It was rigthly pointed out that the proposed act CSPSA not only included violation of the principle of certainty in criminal law (including vague definition of membership and support to terrorist organisations) but also absence of pre-trial safeguards (including insufficient safeguards on arrest, the risk of torture, obstacles to confidential communications with counsel). An important provision which rather made it worse than POTA was the 'virtual impossibility of obtaining bail as there is no provision for remedy of appeal or review of detention.'

Little did any of the organisers or the participants to the convention had the premonition that Dr Binayak Sen himself would be charged under the act, detained for months together by denying bail on flimsy grounds.

Despite campaign by democratic rights activists which were joined in by voices of medical fraternity from the world over, the powers that be seem to be least concerned about his detention. For the powers that be it is not a matter of concern that world renowned intellectuals like Noam Chomsky, Romila Thapar and several others have expressed their 'opposition' to this unwarranted detention of Dr Sen. For them it is not a big thing that 1500 doctors spread in different parts of the world who have been acquainted with the work of their fellow doctor have appealed to the Chhatisgarh government that he be released immediately and all false charges against him be dropped forthwith.

It should be added that 'Medico Friend Circle'(MFC) - a thirty year old organisation of doctors who are working to make health services more accessible to the poor and who have consistently opposed the corporate control over people's health, recently held a press conference in Raipur to oppose Dr Sen's detention. In fact they showed the media a thirty minute CD based on the work of Dr Sen, who is closely associated with MFC's work since his youth. In fact more than thirty well-known medical professionals spread in different parts of the country made it a point to be present in the Press meet and declare their solidarity with their comrade.

But leave dropping charges or releasing him, the courts are is not ready to grant him bail.Dr Sen has been charged with 'a prima facie case that the applicant was involved with some banned organisation' .The high court did not deem it necessary to grant interim relief despite knowing the fact that ' the said meeting between leader of a Maoist organisation and Dr Sen took place in the jail premises themselves' in the 'presence of jail officials' and the letters which the police claimed to have seized from Mr Sen's house were sent from the jail themselves with due stamp of the jail officials.

The Chhattisgarh PUCL has termed this order of the Chhattisgarh High Court as “unfortunate” as the Court has not appreciated all the material facts and evidence of the case as presented by the legal counsel for Dr. Binayak Sen during the arguments. It has also decided to move the Supreme Court so that the highest courts of the country can decide on the merit of the case. It has also resolved 'to take stock of the alarming situation in Chhattisgarh with regard to ruthless use of repressive laws and anti-democratic actions of the State Government and, in turn, formulate future strategy and action plan to defend democracy and restore the rule of law.'

These days media is agog with news of another innocent doctor called Dr Haneef who has been apprehended by the Australian police. It is for everyone to see to what extent the Australian police went in proving that he is a 'terrorist'. It is a mark of the vibrancy of the Australian civil society that people there have stood up in Dr. Haneef's defence. The consistent campaign by the civil liberty organisations with due support from the media has helped expose Australian government's highhandedness in l'affaire Haneef. It is a matter of time that Dr Haneef would be released.

One just wishes that much like their Australian counterpart, the civil society in this part of the globe also wakes up to the innocence of Dr Binayak Sen and tell the powers that be that 'We want him out' !

If the Australians can fight for the human rights of an Indian, should the Indians maintain a conspiracy of silence when one of their own is being brutalised by the state.

Countercurrents.org

An intimate portrait of Shankar Guha Niyogi, and the arrest of Binayak Sen

By Anand Patwardhan
Dr Binayak Sen, General Secretary of the People’s Union for Civil Liberties, was arrested in May this year by the Chattisgarh police, apparently because he had ‘links’ with a jailed ‘Naxalite’. World over, from Amnesty International to Amartya Sen, there have been strong protests against the arrest. Support has also poured in from across the country. The world’s medical fraternity has also taken up the cause, for Sen is that rarest of rare doctors - one who walks and works among the poorest and the most deprived. Yet, our cries so far have fallen on deaf ears.

I first met Sen in 1986 when Shankar Guha Niyogi, leader of the Chhatisgarh Mukti Morcha (CMM), had invited me to screen ‘Bombay Our City’ to the mine-workers of Chhatisgarh. Niyogi was no ordinary union leader. Originally a worker in the Bhilai Steel plant, his thinking went far beyond the wage-struggle politics of most unions of the day.

I witnessed democracy at work every evening when workers sat down in a large circle to discuss the ideological and practical issues of the day and saw how innovative their thinking was. The predominantly adivasi workforce needed to have their own symbols of struggle, so the CMM revived the memory of a forgotten hero, Shaheed Veer Narayan Singh, a 19th century adivasi who had been hanged by the British in 1857 for feeding his people from the granaries.

Inspired by Niyogi, Sen came to work among the mine workers of Chhatisgarh. They were instrumental in conceiving and setting up a 15-bed Shaheed Hospital, a modest but impressive institution built and maintained with the voluntary labour of the mine workers. By mid-1980s, the hospital had grown to a 50-bed one with its own self-sufficient operating theatre. The love, care and pride that went into the daily work at the hospital made it a unique institution, one of its kind.

The Legendary -Shankar Guha Niyogi

The revolution that Niyogi and his comrades envisaged was acquainted both by the failures of the Left as well as by the knowledge of environmental degradation wrought by the development paradigm.

When disillusionment with the traditional Left set in by the mid-1980s, there was a search for an alternate vision. Niyogi and the CMM in Chhatisgarh seemed a harbinger of a new Left movement, using not armed struggle but grassroots organisation and mass mobilisation as their primary weapon.

The screening of Bombay Our City, a film that described the daily struggle for survival of Bombay’s slum-dwellers, was an instant hit with the workers. Over a thousand attended the open air screening and discussions lasted long into the night. So lively was the exchange that the union wanted its own print. I promised to return but to my regret, never kept my promise.

But Niyogi and the CMM had other powerful enemies. Growing confidence among workers had allowed the union to tackle social evils like alcoholism. The union imposed a small fine on those who drank but incredibly, secretly returned the fined amount to the wives of the alcoholic worker. Shrinking consumption levels hit the liquor mafia hard. Other powerful enemies included labour contractors who had lost their exploitative livelihood, to the most intractable force of all, an industrialist/politician nexus that could not tolerate a strong workers’ movement.

On the night of September 27, 1991, Shankar Guha Niyogi was shot dead as he lay asleep in his hut. Those who organised the murder were never punished although everyone in the area knows who they are. The additional district and sessions court found six persons guilty and awarded the death sentence to the man who fired the gun and life sentences to the other five, including two prominent industrialists close to the BJP, charged with planning and funding the murder. With the BJP in power, the Madhya Pradesh high court freed the accused, citing lack of evidence. The orphaned CMM struggled on, led by Janak Lal Thakur among others. Sen, and his wife Ilina, stayed on, working with the CMM. He later began work with the civil liberties movement and took up the position of General Secretary of the Chhatisgarh unit of the People’s Union for Civil Liberties (PUCL).

The assassination of Niyogi and the logic of ‘liberalisation’ led to a rapid worsening of repression against adivasis and workers in the region. Into this vacuum, armed resistance in the form of the Naxalite movement began to grow. In response, the State launched one of its most infamous anti-Naxal operations we know as the ‘Salwa Judum’ — arming and training civilians to form para-military vigilante outfits to combat Naxalism. As General Secretary of PUCL, Sen documented and published reports on the reign of terror unleashed in Chhatisgarh by the State-para-military forces nexus.

The State took its revenge and put a warrant out for his arrest. It was alleged that Sen met a Maoist leader lodged in Central Prison, Raipur, and facilitated an exchange of letters from jail, despite the fact that the PUCL had sought and obtained official permission from prison authorities for this meeting. Since May 14, Sen has been held for over 2 months now as a Naxalite.

If Sen is deemed a Naxalite because he documented State atrocities, then count me in as one too.

Anand Patwardhan is a film-maker and human rights activist

Sanhati.com


Anand Patwardhan is known as the " Micheal Moore of India "
of India.To know more about him please visit this website on his movies
http://www.patwardhan.com/

Tags: shankar guha niyogi, anand patwardhan, micheal moore, binayak sen, pucl, naxalite, maosit, amnesty, chhattisgarh mukti morcha, CMM

Condemn Arrest of Dr. Binayak Sen:

Condemn Arrest of Dr. Binayak Sen:
Oppose Attack on People's Union for Civil Liberties, Chhatisgarh
by People's Union for Democratic Rights

13th May 2007

We, the following Civil and Democratic Rights organizations, strongly condemn the arrest of Dr. Binayak Sen, General Secretary, People's Union for Democratic Rights (Chhattisgarh) and Vice President, PUCL (National) under the draconian Unlawful Activities (Prevention) Act 2004 and Chhattisgarh Special Public Security Act 2006. Dr. Sen is a very well-respected civil rights activist of long standing who has the rare ability to integrate his medical profession with his activism. He had come to Bilaspur today to attend his clinic and was informed by the City Superintendent of Police to go to the local thana [police station] for recording of statement. When he arrived at the thana, he was arrested.

The arrest of Dr. Binayak Sen came after a week of false charges by the SP Raipur that Dr. Binayak Sen is a Naxalite. For the last few days, the police has made similar public statements against several other PUCL (Chhattisgarh) activists and democratic rights activists including Ms. Rashmi Dwivedi and Mr. Gautam Bandopadyay.

Arrest of civil and democratic rights activists is neither new nor original. The experience of various Civil Rights organizations including the Andhra Pradesh Civil Liberties Committee over the last two decades is enough proof of how the state has attacked those who have questioned the state and exposed the truth behind fake encounters, disappearances, and rapes that form an integral part of the operations of state forces. In the present context, it is well known that the Chhattisgarh Government has been indulging in the most brazen brutality in the adivasi areas of the state to suppress the Maoist movement. Dr. Sen's untiring work in documenting the atrocities and violations committed by the state forces in the guise of the Salwa Judum [militias employed by the state government] has earned him the ire of the police. PUCL, Chhattisgarh and other democratic activists have been raising their voice and campaigning against these illegal and inhuman practices, and for this service to democracy, the familiar allegation of being a "Maoist" is made against them.

When the UAPA was amended in 2004 after the repeal of the Prevention of Terrorism Act and when the Chhatisgarh Special Public Security Act was enacted in 2006, we expressed the apprehension that it would be used against democratic movements and activists, and the apprehension has been proved right.

We condemn the arrest of Dr. Sen and demand his immediate and unconditional release.

• K. Balagopal, General Secretary, Human Rights Forum, Andhra Pradesh
• G.K.Ramaswamy, Convenor, People's Democratic Forum, Karnataka
• Nagraj Adve, Secretary, People's Union for Democratic Rights, Delhi
• D. Suresh Kumar, Joint Secretary, Andhra Pradesh Civil Liberties Committee
• Sujato Bhadra, Secretariat Member, Association for the Protection of Democratic Rights, West Bengal

Download a PDF file containing the following:

• Joint Press Release from Civil Liberties Organisations
• Press Release from People's Union for Democratic Rights, Delhi
• Appeal from Chhattisgarh PUCL
• Press Release from Chhattisgarh PUCL
• Chhattisgarh PUCL Statement on Fake Encounters
• Open Letter from the Brother of Dr. Binayak Sen
• Bio of Dr. Binayak Sen

Who Is Dr. Binayak Sen?

Dr. Binayak Sen is a very well-known activist who is highly respected both in Chhattisgarh and elsewhere. As a medical doctor, Dr. Sen has been actively involved in providing health care to the poorest people as well as monitoring the health and nutrition status of the people of Chhattisgarh. Dr. Sen helped to set up the Chhattisgarh Mukti Morcha's Shaheed Hospital, a pioneering effort to establish a health programme and hospital owned and operated by a workers' organization for the benefit of common people. Besides being actively involved in the Shaheed Hospital, Dr. Sen is a very well respected member of Jan Swasthya Sahyog which is committed to developing a low-cost, effective community health programme in the tribal and rural areas of Bilaspur district of Chhattisgarh. He was also a member of the state advisory committee to create a pilot community-based health worker programme across Chhattisgarh that later became known as the Mitanin [community health volunteer] programme. He also donates his service to a weekly clinic in a tribal community in Dhamtari district.

As General Secretary of the Chhattisgarh PUCL, Dr. Sen has helped to organize numerous fact-finding campaigns about human rights violations in the state including custody deaths, fake encounters, hunger deaths, dysentery epidemics, malnutrition, and other similar violations. In recent times he has worked intensively to bring large-scale oppression and malgovernance within the so-called Salwa Judoom in Dantewara to national and international attention. Dr. Sen has regularly spoken to the local and national media on these issues.

Dr. Sen has been contributing theoretical papers to books and journals on public health. He was the recipient in 2004 of the Paul Harrison award for lifetime work of medical care in the service of humanity, an award given annually by the Christian Medical College, Vellore to one of its alumni.

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People's Union for Democratic Rights is a Delhi-based organisation, fighting for people's rights in India for more than twenty five years.

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