Amending Jail Act
Defining Political Prisoners
Mamata Banerjee finalised an about-turn over her
pre-poll promise on the release of political prisoners by redefining the term and passing the West Bengal Correctional Services (Amendment) Bill 2013 in the state Assembly at the end of August. It's a Left Front-era irony that the notorious jails have been rechristened as 'correctional homes'. The amendment of the WBCS Act of 1992 has not only denied the status of political prisoners to the 'members and supporters of the terrorist or proscribed organizations' but also narrowed down the criterion for obtaining such status by redefining 'political and democratic movement or public agitation'.
The clause (VI) of the sub-section (3) of section 24 of the WBCS Act, 1992 now restricts the legal scope for obtaining the status of political prisoners from courts to those persons who are arrested and put on trial or have been convicted for committing/attempting/abetting the offences under the Indian Penal Code and any other law in force for the time being, 'in furtherance of any political or democratic movement or public agitation'.
But it excludes those who are 'members and supporters or involved with organizations' which have been 'proscribed, classified or declared to be a terrorist organization or similar organization under any law for the time being in force'. The Bill neither offers any definition of the 'terrorist(s) or their organizations' nor names the Maoists. But it makes room to borrow the definition from the Central laws like the Unlawful Activities (Prevention) Act and enforce the amended jail law in tandem with it as well as with a state law in future. Haidar Aziz Safwi, the minister in-charge of jails, in his 'statement of objects and reasons' of the bill, justified the bill saying that 'persons involved in terrorist activities or associated with terrorist organization cannot be equated with persons who strive to achieve political goals by means of democratic process in lawful manner'.
The 'explanation' in the Bill confines the contour of a 'political or democratic movement or public agitation' to a movement or agitation 'by any political party or any group or association of persons for furtherance of any political objective securing human rights or undertaking social reform'.
In contrast to this sectarian, ahistorical and egregious definition of political prisoner and political offence, the connotations in the LF-era law were broad-based and reflective of prevailing polity and socio-economic ground reality. It was another matter that the CPM-led Left Front government, except in its initial years, had hardly felt any pangs for the political prisoners from Opposition parties and groups across the ideological spectrum. The political initiative for the long overdue jail reform lost steam as the big brothers of the Indian Left stepped into the shoes of their former tormentors. Still, the 1992 legislation was a culmination of the fusion and fission within the ruling front as well as pressures from human rights movement and some judicial initiatives.
The clause (VI) extended the status of political prisoner to 'any person believed to have been prosecuted out of political animosity or grudge'. Keeping in mind the history of implication of political activists in false cases of murder, rape and decoity etc, the original law also said that 'a person charged under section 302 or section 379 or section 395 or section 411 of Indian Penal Code may be classified as a political prisoner if his case satisfies the requirement of this clause'.
The provision also explained that 'any offence committed or alleged to have been committed in furtherance of any political or democratic movement or any offence arising out of an act done by an Individual with an exclusive political objective free from personal greed or motive shall be a political offence'. This underscored the distinction between ideo-political and individualistic motivations behind offences as demanded by the nationalist and later Left discourses against the colonial and post-colonial jurisprudence which continued to be biased to elites.
Further, it widened the parameters of political crimes as it said: 'An offence coming within the preview of chapter VI of Indian Penal Code shall always be deemed to be a political offence.' These offences include waging war or attempting to wage war against Government of India, conspiracy and sedition. These qualifications reflected the decades-long struggles by the political movements and human rights groups to make the anti-State political activities including armed rebellions distinct from common violent crimes. Even if the colonial IPC remained largely unchanged, this qualification helped to calibrate certain notions of historical legitimacy and political morality behind armed resistance against brutal oppression by foreign or domestic rulers, so enshrined in some international rights covenants.
In the light of earlier experiences of wanton abuse of executive/police power by the ruling classes and political parties to gag class and mass struggles, the original law had identified certain mass mobilization activities with the goals to achieve democratic rights, collective good and socio-economic justice as legitimate political activities. So it 'interpreted' political and democratic movements in terms of 'public agitation' for 'securing or safeguarding any political right, objective or relief with a view to obtaining common good for the people in general. ..or for remedy of any injustice of political nature'.
Subtly reminding the highly repressive, divisive and unjust nature of the Indian State and society, the parameters had also included 'safeguarding any well-recognized human right... social reform or for ameliorating the living condition of the afflicted or poorer section of the community or for securing reforms or for safeguarding public interest in social, economic, educational and cultural matters.' It precisely noted movements and organizations for the 'well-being of working class and collective activities for safeguarding the interest of tillers' as 'democratic'.
The new amendment by the Mamata Banerjee government has chopped off these elaborate explanations to the sub-clause except one. It only retains the LF-era secular-modernist rider that refuses to consider 'any movement or public agitation by any communal, regional, linguistic, religious, racial, sectional or caste group sponsored against any other group' as a political or democratic movement. But the rider within the rider that allowed 'promotion of social or economic interest of a particular social group' by such identity-based social-political organizations was dropped this time. The new amendment will help the government to book the Gorkha Janamukti Morcha leaders and supporters who have renewed separate statehood movement and deny them political prisoner status.
Altogether, the new definition of political prisoners has not only dismissed the idea of maximum possible political-ideological plurality in a liberal democracy, it has also undone the limited achievements of mass movements since the days of freedom struggle, which insisted on the right to dissent and oppose an oppressive and unjust State as a political right. At the same time, it has made the definition suitable to the narrow political design of the new regime to browbeat its dissenters and critics of all hues including her rivals in electoral politics. It may turn into the proverbial straw that will break the camel's back, especially those overburdened civil society members and human rights activists who are still fighting shy of calling a spade a spade in spite of increasing weight on their conscience.
It's an irony of much-hyped paribartan (change) that the Trinamul Congress and its supremo who cried foul about the politically motivated police cases whenever her party-men and other fellow-travellers had been booked by the partisan police during the LF regime. She made it one of the terms of references for the committee that she set up to review the cases of the political prisoners as soon as she assumed office. Most of the persons accused in criminal cases in Singur and Nandigram were released and their cases were mostly withdrawn following the recommendations of the committee on the ground of politically biased police fabrications by the erstwhile rulers.
Now the new amendment has done away with the very notion of 'persecution out of political animosity or grudge' by the rulers of the day as one of the criteria for getting the recognition as political prisoner.
Partha Chatterjee, the Number Two in the Mamata Banerjee Cabinet who wears the hats of both industry and parliamentary affairs defended the Bill in the assembly. He claimed that political persecution was a thing of past. "We have no intent for political animosity and believers in constitutional democracy have nothing to fear about," he said. But the likes of Ambikesh Mahapatra to Shiladitya Choudhury who were put behind bars and others like Mousumi and Tumpa Kayal of Kamduni who had incurred Didi's wrath by daring to question her in public knew the truth dearly.
It's true that the Congress-led UPA government at the Centre had been egging on the state to amend the law to prevent Maoists and Jihadi terror suspects from getting off the hook. Delhi mounted pressure after Gour Chakraborty and some other suspected Maoist undertrials got the status of political prisoner from Calcutta High Court. Following that, Aftab Ansari, the prime accused in the attack on the American Centre in Kolkata, reportedly planned legal moves for such recognition.
But the central move turned into a suitable politico-legal ploy for Mamata Banerjee. The self-styled crusader against New Delhi and the prodigal of the UPA wanted to end formally her pre-Paribartan brief bonhomie with the Maoists. Now that she is firmly on the saddle after consolidating her power in the rural polls, she has no qualms in turning her back on her former friends among Naxalites and other anti-CPM Left in the civil society who had helped her to ride the crest of popular discontent after Singur and Nandigram.
Chatterjee revealed the new ruling party's changed political equations with the Maoists as well as other Naxalite groups and civil society members. "The definition of political prisoner in the 1992 act was confusing and it was being misused. Now it's clearly defined. We want to stop violent and destructive politics," he said. "Extremists and half-extremists were part of our movement during Singur and Nandigram. They wanted Mamata to promise release of political prisoners. Accordingly, she constituted the review committee and released 56 out of 76 on bail on the basis of its recommendation", the minister commented.
Most of those released belonged to the Kamtapur Liberation Organization and Greater Coach Behar Movement, Chatterjee added. Another 188 prisoners, mostly old and infirm persons who had been sentenced for life, were also released. What he did not say was that the state government had not released any "Maoist" prisoner on its, own, except on court order.
For long two years since May 2011, Mamata Banerjee and her ministers spoke with forked tongue over the recognition of suspected Maoist undertrials/convicts as political prisoners and their release on bail. The review committee members claimed to have asked for the release of all political prisoners but the chief minister sat tight on their advices and made selective nods in tune with her political designs. But neither did the government ccme out with the committee's recommendations nor did the panel make it public.
Meanwhile, the government's soothsayers blamed the CPM-recruited public prosecutors for opposing Maoist prisoners' petition seeking the status of political prisoners as the 1992 law required. But the cat came out of the bag after the state government filed a special leave petition in the Supreme Court opposing the High Court recognition to Ckakraborty and others.
It's no more politically correct for Mamata Banerjee and her ministers to call Maoists as 'brothers and sisters with common concerns but different paths'. Gone are those political exigencies which had made her play agony aunt to Kishenji and his comndes in Junglemahal, demand probe into slain Maoist top gun Azad's killing and promise release of Chhatradhar Mahato and other leaders of People's Committee Against Police Atrocities.
Two years is a long time in politics, particularly after Maoists have reaped in Junglemahal what they had sown—the cult of mindless and sectarian violence and miscarriage of genuinely potential mass movement against tyrants—and suffered defeat, both military and political. Now that Trinamul hegemony in Junglemahal is near total, TMC leaders have given enough indications that Mahato and other suspected Maoist leaders will be left to rot in jails. The CPM and its LF partners opposed the Bill, albeit half-heartedly, while the Congress walked out on another issue without moving its motion to send the Bill to the House select committee. The lone SUCI MLA moved a motion against redefining the term 'political prisoner' but the Trinamul-dominated House rejected it. The Opposition leader in the state assembly and the CPM politburo member Surjyakanta Misra said that the 1992 law was enough to deal with terrorists and Maoists.
Misra rather focused on the government's 'doublespeak as he criticised Mamata's meeting with surrendered Maoist leaders at the Writers' Buildings and release of 'foreign-trained' KLO militants who had been accused of killing six CPM leaders in Dhupguri in north Bengal. He as well as other LF members like Forward Bloc's Udayan Guha referred to the chief minister's arbitrary labeling of public protesters including Kamduni women as 'Maoists'. They feared that the new amendment would help the government to put any dissenter behind bars in the name of containing Maoists and terrorists. "The government did not bother to wait for the SC's order on its SLP. Why this hurry?" Guha asked.
But the CPM's game was clear as Chatterjee pointed out that Misra did not join in the debate on the Bill, except at the fag end of the proceedings. Nor did he ask for a 'division' or vote-on-record on the Bill. With the memory of the Marxist-Maoist mutual hatred and bloodshed still fresh and the CPM's desperate efforts to regain power, the alarming implications of the amended jail law are too little to care about for a party, which is immersed in realpolitik. After all, the Big Brothers of mainstream Lefts still have their parliamentary forums to cry foul against the ruling party and government in Bengal, but the marginals including the suspected Maoists hardly can afford it.
Vol. 46, No. 12, Sep 29 -Oct 5, 2013
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