A look at the draconian law

Latest arrests under Chhattisgarh Special Public Safety Act (CSPSA): A look at the draconian law

May 16, 2009. This article first appeared on CGNet.

Pawan Verma was a worker – an expert cook in the Canteen and VIP Guesthouse of the erstwhile L&T Cement, now Ultratech Cement plant at Hirmi, district Raipur, Chhattisgarh. A few years ago, fed up with the anti-worker attitude of the management, he took voluntary retirement and lives in village Hirmi. I have known him ever since I fought cases for his union Pragatisheel Cement Shramik Sangh.

Recently he contacted me after it was published in the local newspapers that his daughter Ruchi Verma and her husband Bhola Bagh (both under 30 years of age), and their one-and-a-half year old son had been arrested under Section 8(1) (3) and (5) of the Chhattisgarh Special Public Safety Act (CSPSA). It was alleged that a “Naxalite woman” had confessed to the police that she had put up for a short while with the couple. Section 8(1) of the CSPSA is the penalty for being the member of an unlawful organisation, while 8(3) and (5) concern managing or aiding such an organisation.

Along with Pawan Verma, I went to visit Ruchi Verma in the women’s section of the Durg jail. Any person who goes to meet suspected “Naxalites” or “Sanghams” (Naxal supporters) is asked to supply proof of residence, is photographed and even conversations with lawyers have been directed to be taped by confidential circulars. Accordingly we were photographed. Ruchi revealed that she, her husband and their baby had been picked up at 11.30pm from their house on 9th February. She said nothing whatsoever, and certainly nothing incriminating had been seized from their house or person. They were taken to the Nevai Thana of Durg and then to the Bhilai Bhatti Thana, where she said they were repeatedly beaten and threatened and interrogated. After this the family was seperated. She and her son were taken to the Mahila Thana in Durg and kept there for 8 days before they were finally taken to jail on 18th February. They were kept in the police van while the formalities were carried out of producing them before a magistrate, she did not get the opportunity of conveying that they had been illegally detained for 8 days. She expressed the desire that she wants to convey this fact to the magistrate. But on most remand dates they were not brought to court. And on 30th March when they were brought to court, the magistrate was unfortunately on leave.

An undertrial is under the care of the court. Surrounded by the usually hostile environment of the jail and police authorities, his production before the magistrate is his only contact with the outside world. It is the concrete expression of the constititional scheme of seperation of the judiciary from the executive, and the only remedy of the undertrial against arbitrary, illegal or otherwise colourable exercise of powers.

Bhola Bagh, Ruchi’s husband, originally hails from Orissa and was a contract worker in the Ultratech Cement plant at Hirmi. A skilled person, popular among his co-workers, he was active in the workers struggles against the management of Kumarmangalam Birla. Pawan describes how at that time the issues of the management refusing jobs to the peasants of the surrounding four villages who had given their lands for the plant, the use of contract labour in the cement production process which is prohibited by the Cement Wage Board agreement, and the non-payment of minimum wages were burning issues of the workers movement. Bhola took active part in the meetings and strikes. The management brought in about 250 lathi weilding goons from outside and kept them in the factory premises and used them to attack workers. On one occassion these goondas had even abused local women. At that time some of the workers led by Bhola had snatched their lathis away from them and had literally pinned them to the ground. After this the company management had got after Bhola and other active workers filing endless criminal cases and chargesheets. He was also repeatedly threatened, which led to his finally leaving a couple of years ago.

Also in the meanwhile, Bhola and Ruchi had also decided to marry, despite being of different castes and regions. This had also generated some tension in the extended family and caste society. So the couple left and Pawan practically lost touch with them.It appears that Bhola was working as a contract worker in the Bhilai Steel Plant when he was arrested. Today around 50% of the workforce in the public sector Bhilai Steel Plant is contract labour, something patently illegal. Although the paper work might be impeccable, but the reality is that for the same work a contract labourer is actually paid Rs 50/- a day (for non PFdeducted!) and Rs.150/- (for PFdeducted!) for the same work for which a permanent worker gets almost Rs.350/- a day. Many of these contract labourers have been working for decades without regularisation, yet the sword of “hire and fire” hangs over their heads if they protest even a little. Given the personality of Bhola Bagh, it is not surprising if he had also been involved in organising contract labour in the plant. Perhaps this is the real reason behind his arrest? These young people have already been in jail for over 60 days and the maximum penalties under the said Section 8(1) (3) (5) of the CSPS Act are all below 10 years. No chargesheet has so far been filed. It is apparent that the police have acted in a hurry based on a confession extracted in police custody which is legally inadmissible, and are finding little evidence to corroborate their charge.

There is also talk that some sections with graver punishment have been sought to be applied, without any basis, only to extend the permissible period for filing of the chargesheet. This case again brings to the fore the draconian nature of the provisions of the Chhattisgarh Special Public Safety Act. The absence of the ingredient of intention (“mens rea”) in defining an offence of association or aiding or managing or propogating an unlawful organisation – that is, not distinguishing between an act knowingly and unknowingly done; and also making any association whatsoever criminal including that of doctor and patient, lawyer and client, journalist and interviewee, shopkeeper and customer, house owner and tenant, or human rights defender and undertrial. In fact, some sections of the TADA had been declared ultra vires and unconstitutional in the past for the absence of mens rea by the Supreme Court, and the lacunae in this Act go a step further. Another extremely serious aspect of the CSPSA is that the definition of unlawful activity is not confined only to offences connected to the security of the state, secession or terrorist acts, which are considered to impose reasonable restrictions on the fundamental rights of association, assembly and expression. They include even peaceful opposition otherwise included in the Indian Penal Code as offences against the public peace and tranquility.

The vague definition of “organisation” , the refusal to professional legal representation to an unlawful organisation, and the provision which does not accept the formal dissolution of an organisation or resignation from membership upon an organisation being declared unlawful, amounts to being punished even for acts which were not criminal when they were carried out. Perhaps the fact that the aims and objects of the Act presented by the Home Minister of Chhattisgarh also include “opposition to development” may hold the key as to why offences have been defined so vaguely and yet sweepingly.The Peoples Union for Civil Liberties has challenged the constitutionality of this Act in the High Court of Chhattisgarh at Bilaspur. The writ petition has been admitted and the State has been asked to file its reply within 4 weeks.A total of more than 70 persons have been arrested so far under this Act which include doctors, a lawyer, journalist, film maker, shopkeepers, tailors, and a large number of villagers accused of providing food and water to Naxalites, or “showing the forest paths” to Naxalites. A number of persons allegedly of a Naxal cultural troupe (Jan Natya Mandali), but according to local persons who are folk performers at melas have also been arrested. This case of a contractual worker and erstwhile trade union activist is one more addition to the list. It is high time such a draconian law was taken off the statute book.

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