The Judgement

In Response to ‘‘Humanity in Prison’’-I

Desmond Coutinho

This has reference to the Comment "Humanity in Prison" appeared in the September 14-20, 2014 issue of Frontier. The Judgement of the District & Sessions Court in the piece "Humanity in Prison" was misquoted. In truth the judge dismissed the case because for this FIR indictment the prosecution neglected to present any evidence at all beyond paraphrasing hearsay.

He made no judgement on other cases previous or contemporaneous. Irom Sharmila is also standing trial in Delhi for the same offence but the Delhi Prosecutor is presenting evidence so the trial continues but in that case the Government of Manipur refuses to send her to Delhi because it brings their conduct into the attention of National Press and Politicians.

No doubt there are many articles written about Sharmila and few people actually bothering to meet with her or check facts.

This writer has never known any media agency willing to publish verifiable facts around this matter. For one thing the District & Sessions Judge did not rule hunger strike a legal form of protest and exempt from charges of attempt to commit suicide. He merely pointed out that in this particular indictment the prosecution had not offered any evidence at all of Sharmila's intention to fast until or unless the Armed Forces Special Powers Act (AFSPA) was repealed even if this meant her death. The Prosecution merely made hearsay allegations. Since they had not even attempted to provide evidence of mens rea he did not believe it necessary to look into whether a political hunger strike constituted actus reus in a charge of attempt to commit suicide. His Honour Mr Akash Jain, the Metropolitan Magistrate does accept that a trial should proceed and he also accepts that Irom Sharmila has a natural justice right to be present at her trial at the Delhi Patiala Court. It is not a question of the Republic of India being evil undemocratic or inhumane. The procedures are in place so that Justice may better be served. Her right to trial within a reasonable time is also a fundamental and inalienable human right. The District & Sessions Judge made no comment on the legality of previous detentions because those were distinct FIRs and he was not asked to look into those previous arrests or detentions. However it is clear that Indian Law places a limit on judicial remand of its citizens. [http://advocatechenoyceil.]

The usual maximum period of judicial remand for a citizen accused of a crime for which the maximum sentence if found guilty is 10 years, is a maximum of 60 days or 4 repeated judicial remands. In exceptional cases when dealing with a suspected terrorist this limit has been extended to 180 days to allow the police to gather evidence for presentation for trial.

However they have never sought this exemption the previous 13 years plus of judicial remand occurred because nobody checked or followed procedures. When the National Human Rights Commission (NHRC) made their first visit to Sharmila on 23 October 2013 they too realized that she had been kept under illegal isolation orders since 2004 though no one when asked by the 3-man team seemed to know who had given the order or why. Again nobody followed procedures. They accepted on that day that they had been duped by the previous administration they first started accepting complaints that visitors were denied permission to visit Sharmila in 2010 but for every case they accepted the Principal Secretary's defence that he was merely trying to preserve her health. Subsequent to their visit they accepted that they had been lied to. []

Even after their visit and after the State of Manipur had accepted that the isolation order signed by the then Principal Secretary in 2004 had no authority in law they still prevented visits. It was only after a Tamil Nadhu scribe Mega Tamizh Prabagaran took separate magistrate then High Court action that the Government of Manipur backed down and stated they were implementing the norms of the Assam Prison Manual for all visitors to all prisoners in Manipur. They do so niggardly and spitefully but without accountability this is how all those with power behave.

Sharmila espouses satyagraha. If one wants to understand her way it is absolutely necessary to meet with her and stop accepting the word of the many men who claim to speak for her. Part of satyagraha is avoiding confrontation, to allow the truth to seep in and work gently upon opponents till they realize what justice demands. Recently Mr Kiren Rijiju, a junior minister in the Union Home Ministry twice publicly stated that he wanted to meet with Sharmila. But nobody is interested in positive action, so his offer was published but never pressed for a day and time. The next production warrant against the SSP Imphal Central Jail is for him to produce his prisoner at the Delhi Patiala Court on 30 & 31 October 2014. He has refused to do so for 11 of the previous summonses and production warrants. The Patiala Court can issue contempt of court warrant against him or his superiors if they continue to show contempt for court orders. One may argue like President Jackson that the court can make its judgements but who is going to execute them. But of the treatment of the Italian Ambassador when he failed to make good on his pledge to return two Italian citizens for trial also at the Patiala Court. The Supreme Court ruled that the Treaty of Vienna giving absolute immunity to Foreign Ambassadors did not apply in his case. Unfortunately when the AFSPA was challenged they ruled that they lacked the competence to repeal the AFSPA and that the blanket immunity from investigation prosecution and judgement of the ordinary courts of the Republic of India must remain in place until the Legislature removes it. One may believe Mr Modi will do this for Manipur as part of his development plans. Indians must respect the laws that they have to obey, and that they do not clamour for Irom Sharmila either not to be presented at Delhi for trial which will help her cause or for her immediate unconditional release which will result in her death within weeks. This writer is her fiance and only chosen spokesman but if one wants to know her thoughts on this and her way of being one needs to meet with her. That Imphal is far too far away for Important Delhites to drop everything and interview is part of the problem why there are such draconian foreign laws still in India's northeast.

Vol. 47, No. 16, Oct 26 - Nov 1, 2014