THE BLACK LAWS: CHARTERS OF SLAVERY

The government has created following set of laws to suppress, torture and kill innocent Sikh men, women and children. Clearly, the current Indian government is much worse than the 18th century Mughal Empire.

A DISILLUSIONMENT

When the British tried to crush Indian dissent by passing more drastic black laws like the Rowleatt Act in 1919, Gandhi gave a call of 'Satyagraha' and it was Punjab which gave the most powerful and militant resistance to such alien repression showing remarkable Hindu-Muslim-Sikh unity.  The historical Jallianwala Bagh massacre in Amritsar took place on 13th April 1919 which formed a turning point in Indo-British relations almost as important as the mutiny of 1857. Stanley Wolpert comments, "... On April 13, 1919, Amritsar (Nectar of Immortality), a city sacred to the Sikhs of the Punjab, was transformed shortly before sundown into India's first national urban shrine." (Jinnah of Pakistan by Stanley Wolpert, page 64).

Martial law was promulgated in Amritsar, Lahore and a number of districts in Punjab on 15th April 1919.  Special Courts and summary courts were appointed.  Arrests, imprisonment and executions on a big scale took place.  Martial Law lasted from 15.4.1919 to 11.6.1919 during which whole of Punjab was isolated from rest of the world by a rigid censorship.

Those who suffered and faced gallows during freedom struggle in Punjab resisting British repression could never have imagined that Punjab would have to face again the same kind of repressive laws, even more drastic, in free India against which they were revolting!  It is a sad commentary on the functioning of Indian democracy that the same kind of repressive laws which used to be condemned as Charters of Slavery during British time are being enacted in one form or other in free India.  Though Indian Penal Code and other laws already provide for all kinds of offences like, sedition, waging war against the Government and acts of Terrorism, the Maintenance of Internal Security Act, popularly known as MISA, was passed in 1971 with the avowed abject of preserving national security, but we know how this Act was used against political parties, Trade Union workers and other innocent activists.

The same government of free India has now passed the National Security Act, 1980; the Punjab Disturbed Areas Ordinance, 1983; Armed Forces (Punjab & Chandigarh), Special Powers Act, 1983; The Terrorist Affected Areas (Special Courts) Act, 1984 and the Terrorist and Disruptive Activities (Prevention) Act, 1985.  Our investigation has revealed that these Acts are being widely used in depriving the people of Punjab of their civil liberties and fundamental rights and have given a free hand to the police and other Para military forces to torture and harass the simple village folks for ulterior purposes.

NATIONAL SECURITY ACT 1980

In spite of the harrowing experience of MISA, the present ruling party passed the National Security Act in December 1980.  The object and reasons proclaimed for the said Act were:

1. In the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest and increased tendency on the part of various interested parties to engineer agitation on different issues, it was considered necessary that the law and order situation in the country is tackled in a most determined and effective way.  The anti-social and anti-national elements including secessionists, communal and pro-caste elements and also other elements that adversely influence and affect the services essential to the community pose a grave challenge to the lawful authority and sometimes even hold the society to ransom. 

2. Considering the complexity and nature of the problems, particularly in respect of defense, security, public order and services essential to the community, it is the considered view of the Government that the administration would be greatly handicapped in dealing effectively with the same in the absence of powers of preventive detention.

Through this Act the Government acquired powers for preventive detention of such persons who posed a threat to the defense or security of India and maintenance of public order.  However, the developments from 1980 to 1984 shows how the Government tackled the deteriorating law and order situation in the country, in spite of its resolve to tackle the same 'in a more determined and effective way'.  The activities of Sant Bhindranwale and his various associates were well known to the Government but the National Security Act was never revoked against him.  But how more draconian amendments were made in it after Blue Star Operation and how the same were used against innocent citizens will be seen subsequently.

BLUE STAR OPERATION & RIGID CENSORSHIP

Then came the Blue Star Operation, and rigid censorship was imposed in Punjab.  There was no independent and reliable source of news about the happenings in Punjab.  The rest of India and the world could know about the situation in Punjab only through the government sponsored news.  Any journalist or other independent person, who tried to discover the truth, was charged with sedition.  There is the case of Brahma Chellaney, Correspondent, and Associated Press of American who was arrested and is now being persecuted by the Government for reporting unpalatable news about the official conduct.  At the start of the Blue Star Operation, a large number of foreign and Indian journalists had been rounded up and forced to leave Amritsar in a military convoy.  A party to the dispute became its own witness and its own judge in its own case.

If the Government's intentions were honest and it had nothing to hide, then why did it not allow independent observers, journalists and other neutral persons to watch with their own eyes as to how the conflict between the two sides developed and how both of them conducted themselves during the course of the attack?  Even during international wars and battles journalists are allowed to cover the same, but in this Blue Star Operation by the Indian Army against its own citizens, majority of them being innocent pilgrims--the Government did not allow any neutral journalist or newsman.  In such circumstances, the following portion of the eye witness account given by the 'girl student' who was trapped in the Golden Temple along with her family becomes significant:

"...I could not drink the water because it was mixed with blood.  Immediately then Bhai Amrik Singh sent us a message that all of 'you must try to get out of the golden Temple because you are innocent.  If you are captured by the army, they would not spare you because whosoever is captured by them--whether boy, girl, old or child, would be a terrorist for them and would be shot.  Therefore you must try to get out somehow so there would be somebody to tell outside as to what actually happened inside.  They are making so much false propaganda about us and therefore you must get out to tell the real truth".

During this rigid censorship all kinds of wildest and exaggerated rumors spread in Punjab as well as outside.  We already had such experience of 'rumor mongering’ during Emergency.  While All India Radio and Television blurted out the government propaganda, which no Sikh would believe, the newspapers--national or local--had no independent source of information to provide to the public.  In the absence of any reliable source of information, the Sikh and non-Sikh opinions stood divided on opposite extremes.  The Sikh masses were led to believe that the government had completely destroyed the Harmandir Sahib and occupied it and had deliberately insulted Guru Granth Sahib by defiling and burning it.  The other news like destruction of Akal Takht and killing of innocent pilgrims were accompanied by all sorts of exaggerations.  Resentment and anger began to develop fast and Akali Dal gave a call to the Sikh masses to organize into 'Jathas' and march to Amritsar to liberate Golden Temple from the clutches of the 'Satanic forces'. In the words Swarn Singh, aged 65 years and Sarpanch of Jefferwal village: "Meanwhile Akali Dal had given a call to liberate premises of Golden Temple and Morcha had to be started from 17.7.1984 for this purpose.  There were large number of arrests on the eve of this and I was also arrested on 14.7.1984 under section 107/151/IPC and was kept in the Gurdaspur Jail for 15 days and then bailed out."

The news of the attack on the Golden Temple, the rumors of destruction of Harmandir Sahib and defiling of Guru Granth Sahib had a traumatic effect on the Sikh soldiers.  The training and traditions of the Sikh Regiments are nurtured on religious tenets and before being inducted into the Army as a trained soldier, a Sikh has to take the oath of allegiance by physically touching with both hands the Guru Granth Sahib.  Lest a Sikh soldier falter in keeping his vow to die fighting in the thick of the battle for the honor of the country, the Guru Granth Sahib accompanies the battalion into the battle-field.  And the same Guru Granth Sahib, the Sikh soldier was informed, was now being trampled upon under the booted feet of the Indian Army inside the Golden Temple and other Gurudwaras in Punjab.  Many of them went out of their mind and started to march to the golden Temple to defend their faith, without which their very existence seemed meaningless to them.

Bhindranwale became a sort of martyr in the eyes of the Sikh masses--not because he extolled violence and terrorism, but because he had died fighting in defending their faith.  Folk-songs eulogizing the brave fight given by Bhindranwale and his associates, and atrocities committed by the Indian Army during the attack on the golden Temple began to be sung in the villages and cities.  The folk-song named 'SAKA' sung by famous Nabha ladies, who were arrested later on, became very popular.  The song narrated as to how the Sikhs had sacrificed most for the freedom of this country and how they were being killed by bullets and cannon fire, and if they wanted to save their pugree and beard, they had to stand and fight.

As the peoples movement began to gather strength, the Government retaliated by passing the more brutal and draconian laws like the Amendments in the N.S.A. and the Terrorist Affected Areas (Special Courts) Act, 1984.

AMENDMENTS IN THE NATIONAL SECURITY ACT

The National Security Amendment Ordinance No. 5 was issued in April 1984 by which a detenu may remain in jail for fifteen days without knowing the reasons of his arrest and without having any effective remedy because the period of furnishing the grounds of detention was extended to 15 days.  Further the procedure for submission of the case of the detenu was amended in such a way that a detenu will undergo imprisonment for a period of six months before his detention could be found unjustified by the Advisory Board.

The National Security Amendment Ordinance was issued in June 1984 by which Section 5-A was introduced in the Act which provided even if detention order is based on several grounds; it shall be deemed to have been made separately on each of such grounds.  Thus the detenu now has to challenge each of the ground of detention in order to get himself acquitted.  Another important amendment in this ordinance is that after the revocation or expiry of a detention order, another detention order can be issued even if no fresh facts have arisen, provided that total period of detention does not exceed one year.

Thus the Government acquired arbitrary and repressive powers in its hands by the above amendments in the said National Security Act.  The government officials started arresting the people at their whims and fancy, and there was almost no check on their arbitrary actions.

Following are the few examples of the arbitrary manner in which the National Security Act is used.

(a) Giani Puran Singh, who is a Granthi at Akal Takht was arrested in FIR No 263/84 on 30.9.1984 under section 124 and 153A and he was released on bail after three months. He was again rearrested after one month and is still in Amritsar jail.  He was involved with 10 others in the said case but none of them was named in the said FIR.

(b) Mrs. Rajinder Kaur, President, Stri Akali Dal, Punjab, made a speech on 14.9.1984 in a Gurdwara in which she said, "...We want a place where Sikhs could have breath of freedom."  Then she asked people to raise their hands if they approved of such a place.  One lady Mrs. Harbhajan Kaur Khalsa raised her hand.  She was arrested under the National Security Act, though Bibi Rajinder kaur was not arrested.  She was able to get bail only in February 1985.

(c) Shri. G.S. Grewal, Advocate, Shri Manjit Singh Khera and Shri Joginder Singh Sahni attended a small meeting in a Gurdwara in Chandigarh on 8.6.1984. Students felt agitated and they wanted to take out a procession.  These three and some other elderly persons were persuading them not to do so.  During his speech Shri G.S. Grewal said, "...The weapons which are being shown by the army are not likely to be the ones used by the terrorists.  In that case there would have been more resistance than they are telling us.  We must rehabilitate and help families killed in Blue Star and collect funds."

Shri Manjit Singh Khera said, "Our struggle has not ended.  It has just begun.  We must sit quietly and decide how to carry on our agitation rather that just emotionally agitate."

Joginder Singh Sahni said, "Next week we will commemorate the operation.  Then we can wear black turbans."

All the above speeches were objected to as sedition and all of the three were apprehended under NSA.

In the said meeting only resolutions were passed and one resolution said, "Deserters have deserted because their sentiments were touched.  Their cases should be looked at sympathetically and their families should be looked after."  This resolution was also objected to and there was harassment of all those who participated in the said meeting.

Thus the people were being, and still are, prosecuted for merely expressing their resentment and views which is one of their fundamental rights.  The time honored truth of a democratic system, that "the ultimate good desired is better reached in free trade in ideas that best test of truth is the power of the thought to get itself accepted in the competition of the market,"  has been rejected (Mr. Justice Holmes in Abrams Vs. United States --250 US).  In a democracy it is an insult to the people to think that they cannot be trusted to read or hear or understand or to discriminate among various points of views.  Gandhi believed if rights of minorities are to be respected, the majority must tolerate and respect their opinion and action.

WAGING OF WAR AGAINST THE GOVERNMENT OF INDIA

It was claimed by the government that 1592 civilian/terrorists were captured from inside the Golden Temple and 796 from other religious places.  These civilians were charged with waging of war against the Government.  A great majority of them were innocent pilgrims and if they were tried in the ordinary courts, they would have easily proved their innocence and got themselves released on bail and acquitted.  And if it was proved subsequently that there were only near about dozen of terrorists among the captured, the government action would have become a mockery that it had to use military to capture such an insignificant number of terrorists.  According to Shri S.S. Bhagowalia, advocate, Bhindranwale's men were only 140 to 150. Therefore charges of waging war etc. were foisted on by the government on thousands of innocent civilians apprehended during the operation, in order to justify the government action.  Therefore in order to ensure that these innocent accused do not get any relief entitled to in an ordinary courts, National Security Act was amended in June 1984 and Special Courts Ordinance proclaimed.  Following are a few examples to show the type of terrorists captured from the Golden Temple:

1. Kanwaljit Singh: He is a 20-year-old student of Khalsa College (evening), Delhi whose father Satnam Singh runs a provisions store at Lawrence Road, Delhi.  He had visited the Golden Temple on June 2 and wanted to return to Delhi but found that all the outgoing trains were cancelled and therefore both of them were forced to stay at the Golden Temple at Guru Ram Das Serai.  Kawaljit had to miss his interview at Delhi with the Institute of Bank Management on June 3 morning and his examination with the State Bank of India the same afternoon.  He was captured by the army along with the other pilgrims and is still under detention in the Jodhpur jail.

2. Bakshish Singh:  He was manager of the Punjab & Sind Bank branch situated at Guru Ram Das Serai, Golden Temple.  He was receiving a salary of Rs 3000 p.m.  He had taken his wife to the Golden Temple on June 1, 1984 for her treatment for tumor and they were staying in Guru Ram Das Serai from where both of them were arrested on June 6.  His wife was taken to Jalandhar jail, kept there for 22 days and then taken to Hospital and operated upon and then released.  Bakshish Singh, aged 43 years is still in the Jodhpur jail.

3. Raminder Pal Singh, Aged 20 years.  He is the son of Shri Harcharan Singh Ragi who is an employee of the SGPC.  His family has its residential quarters in Parikrama Scheme in the golden Temple.  Finding themselves unsafe in the midst of the firing, the family, along with some other employees took shelter in the basement of the Information Office.  Raminder Pal Singh was arrested on June 6 along with others and is still in the Jodhpur jail.  Extremely studious boy, he also took his B.A. II year examination from the Jodhpur Jail.

4. Kashmir Singh, s/o Gujjan Singh, r/o village Baba Bakola, ages 45 years: He had gone to Darbar Sahib for Guru Purb.  He has only one and half acres of land and four small children to feed. His wife learnt after one month that he was picked up from Bazar Kathian on June 6 and was falsely implicated as 'waging war against the State' and was shown to have been arrested from inside the Golden Temple.

5. Bhupinder Singh, s/o Jiwan Singh, aged 22 years, r/o village Rayya, Distt.Amritsar.  He used to manufacture steel almirahs.  He was arrested from Kathiwali Bazar on June 6 in Amritsar but was shown to have been arrested from inside the Golden Temple.

6. Manjit Singh s/o Bawa Singh

7. Randhir Singh s/o Mangal Singh

8. Randhir Singh s/o Bahadur Singh r/o village Dehriwal Kiran, P.S. Kalanaur, Distt. Gurdaspur:

These three young boys, like hundreds of others, took the customary village donation of grain to Darbar Sahib on the eve of Guru Purb, where were trapped inside the Golden Temple and are now lodged in Jodhpur jail as terrorists.

And there are several cases like that.  All these accused numbering more than a thousand have been charged with 'waging war against the State' and are detained under the National Security Act.

THE TERRORIST AFFECTED AREAS (SPECIAL COURTS) ACT 1984

This Act, hereinafter referred to be as the Special Courts Act, was enacted in strange circumstances.  Blue Star Operation in June 1984 claimed to have successfully curbed terrorism but soon after one month of the said Operation, this Act was passed in the form of a Presidential Ordinance on 14th July 1984 with the ostensible purpose of curbing and controlling the menace of terrorism.

The avowed object of the Special Courts Act was declared to provide for speedy trial of certain offences in the terrorist affected areas, but in practice the Act is most dilatory, and tortuous.  A host of offences have been listed in this Act as scheduled offences which are already covered by the Indian Penal Code.  The Explosives Act, the Arms Act, the Telegraph Act, the Railway Act, the Unlawful Activities Act, the Anti-Hijacking Act and the Prevention of Damage to Public property Act.  The offences such as waging war, sedition, abetting mutiny or attempting to seduce a member of the armed forces from his duty, creating communal hatred, threat of injury to public servant, harboring offender, defiling or injuring place of worship with intent to insult the religion, intentional acts of such insult, murder, attempt to murder, serious hurt, wrongful confinement, kidnapping, robbery and dacoity are already provided and punishable under the Indian Penal Code.  All these things even on paper are so fearful, but in life when used how difficult it must be for a human being to carry out his every day life.  The Government has not explained as to why it resorted to such drastic measures as this Act.

There are about 47 courts presided over by the District and Sessions Judges and Additional Judges and there are only 11 special courts in Punjab.  More than 3/4th work of the regular courts now stand transferred to these 11 special courts which are overworked as even ordinary offences without any element of terrorism are being tried by them.  The ordinary adjournment is from 5 to 8 months and it is beyond any comprehension as to how it can achieve the object of speedy trial.

The object of 'speedy trial' could very well have been achieved by establishing additional courts and appointment of more judges to preside over these courts.  But this has not been done.  On the other hand an extraordinary procedure has been adopted for the special courts which is most fanciful, oppressive and arbitrary.

According to section 167 of the Criminal Procedure Code, Magistrate can give police remand only for 15 days but in the Special Courts Act this period has been extended to 30 days.  Moreover, according to the Criminal Procedure Code, on the expiry of 60 or 90 days as the case may be, the accused is bound to be released on bail.  But the Special Courts Act has extended this period to one year.  The result is that the police has been empowered to deprive an innocent person of his liberty for a period of one year without even bringing a charge against him.  There have been several cases in which a person was arrested by the police just to harass and torture him and after the expiry of 7 or 8 month period in jail, the police has just withdrawn the case on the ground that no material could be gathered against the detainee.  Though the accused is released in such cases, but during the period of detention, the family of the accused stands broken and his means of livelihood deprived.

Following are the illustrative cases to show how the police is making use of this Act in order to deprive the innocent persons of their civil liberties:

1. Randhir Singh, s/o Harbans Singh Ghumman, r/o village Ghumman Kalan, aged about 20 years: Randhir Singh was arrested in Gurdaspur on 16.8.84 in FIR No. 80/84 dated 2.4.84 u/s 302 IPC of PS Dera Baba Nanak.  After torturing him for a number of days and keeping him in jail for more than 3 months, the police withdrew the case against him. The orders of the Addl. Sessions Judge, Batala. Shri R.N. Moudgil, dated 26.11.84 are as follows:

                Present: App accused in custody. ASI Gurpal Singh, P.S. Dera Baba Nanak, ASI Gurpal Singh who is present in Court states that Narinder Singh is no longer required by them in this case.  His further judicial custody is not requested.  Accused Narinder Singh, be therefore, released.

                                           Sd/ R. N. Moudgil

                                             JMIC 26.11.84

                Contention of Shri Narindar Singh is that he was released because the police wanted to liquidate him in false encounter and now he saved himself. Since then he is underground.

2. Pargat Singh: Pargat Singh was arrested in June 1984 and he was able to get his bail when he showed to Court the three different versions of the police and the military about the recovery made from him and his arrest.  The whole order is reproduced below:

In the Court of Sardar K. S. Bhalla, Judge, Special Court

Judicial Zone, Jalandhar

Bail application No. 668 of 1984

Date of Decision: 11.12.1984

State  Versus  Pargat Singh, Son of Harbhajan

Singh r/o village Bhullar Hans,

District Amritsar.

F.I.R. No. 143 dated 29.6.1984 P. S. Kathu

Nangal (Distt. Amritsar) U/s 4/5 Explosive Substances Act

Present:  Shri P. S. Hundal, Counsel for the applicant

Shri V. K. Gupta, Public Prosecutor for the State.

ORDER

Arguments heard.  In this case under section 4 of the Explosive Substances Act a hand grenade is said to have been recovered from the possession of applicant Pargat Singh but there are three different versions with regard to the recovery.  One is provided by Capt. S. C. Shukla, a commissioned Officer of Indian Army.  He in his written report dated 29.6.84 addressed the SHO, Police Station Kathu Nangal, states that on receipt of information houses were searched in village Bhullar Hans and a hand grenade was recovered from the possession of applicant Pargat Singh.  It has not been spelt out in the report from where the recovery was made and how the possession of the applicant is fixed so far as the hand grenade is concerned.  The SHO in his turn provides 2nd version through FIR No. 143 of 1984.  In that important document it is mentioned by S. I. Joginder Singh that applicant Pargat Singh on his interrogation, made a disclosure statement to him at his house in village Bhullar Hans, which was already secured by Military authorities, leading to recovery of a hand grenade after digging out of the court yard of his house.

The light of the day has been shown in the third version in a Calendar dated 10.7.1984 prepared by an officer not less than the rank of Inspector Police.  SHO, Police Station, Kotwali, Amritsar, photostate copy of which has been placed on the file by the counsel for the applicant and existence of which calendar is not disputed.  In the version provided by said responsible officer in that Calendar under section 107/151 Cr. P. C.   It is mentioned that security forces apprehended the applicant from Golden Temple complex, Amritsar while fighting after collecting arms and ammunition against the Indian Government during Military action.  If the applicant was apprehended, during military action which took place in the first week of June 1984, recovery if any was bound to have taken place at Amritsar and in the first week of June 1984.  In this situation of the matter for obvious reasons, it is fit case to admit applicant Pargat Singh to bail and he is, therefore, ordered to be released on furnishing personal bond with one surety in the sum of Rs. 7000 each to the satisfaction of Chief Judicial Magistrate Amritsar.

sd/Judge

Special Court, Judicial Zone

Jalandhar

Announced on December 11, 1984

3. Amrik Singh: He was arrested on 3.7.84 and a case was planted on him that Amrik Singh was making provocative slogans in a meeting of 100 men audience.  In April 1985 the police furnished the names of two witnesses in the case i.e. Shri Kashmir Singh and Shri Seva Singh.  However, when contacted, these two witnesses told the family of Amrik Singh that they had not seen any such incident but the police had told them that they were witnesses in the case.  These two persons filed their affidavits in the court alleging that they had not seen any such incident and on the basis of the same Shri Amrik Singh was released on 3rd May 1985.  His statement is enclosed as Annexure No.2.

4. Rajinder Singh, s/o Subedar Ganga Singh, aged 35 years, r/o village Narrawali, P.O. & P. Kalanaur, doing private medical practice. He is an Akali activist and was arrested in July 1984 and was falsely implicated in a case of fire which occurred in a shop in Kalanaur on 25.11.1983.  However, Rajinder Singh had courted arrest in Akali Agitation and was in jail from 18.9.83 to 26.11.83.  He showed these facts to the Judge and so the judge released him after 15 days dismissing the case of the police.

5. Shri Puran Singh, s/o Fauji Singh, aged 27-28 years, employed as Assistant Linesman with the Punjab Electricity Board: He was arrested on September 10, 1984 as he was coming out of duty at 11 p.m. at Kanun and was badly tortured.  He was acquitted in February 1985 as the police withdrew his case for want of evidence.

JAIL, NOT BAIL

"Bail, not jail" is the general rule which has been adopted in the criminal trials which begin with the presumption of innocence in favor of the accused.  The idea behind is this if the accused is detained before and during the trial, then it has grave consequences for the accused.  Though he is presumed to be innocent till his guilt is proved, yet he would be subjected to psychological and physical deprivations of jail life.  The jailed accused loses his job and is prevented from contributing effectively to the preparation of his defense.  Moreover, the burden of his detention fall heavily on the innocent members of his family.  Therefore to grant bail is the rule than exception.  But in Punjab this rule has been changed into 'jail, not Bail', Special Courts Act has been framed in such a manner that it is almost impossible for the accused to be released on bail under it.

One of the most obnoxious features of the Act is the denial of the rights guaranteed under section 438 of the Criminal Procedure Code.  Section 438, usually called the Provision for Anticipatory bail, empowers the High Court and the Court of Sessions to grant anticipatory bail i.e. direction to release a person on bail even before the person is arrested.  According to the Forty First Report of the Law Commission on the Code of Criminal Procedure Code, the necessity for granting anticipatory bail arises because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.  Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems to be no justification to require him to first submit to custody, and remain in prison for some days and then apply for bail.  The section is salutary provision which enacts the mandate of Article 21 of the Constitution of India but the people of Punjab have been deprived of this salutary provision.  The numerous cases mentioned in the report elsewhere show that the deletion of section 438 of the Cr. P.C. for the people in Punjab has brought misfortune and havoc for the innocent persons.  The case of Shri Paramjit Singh Sidhu, Advocate at Jalandhar, is also illustrative of this.  Though this advocate has been daily practicing in the Jalandhar Court and there is no likelihood of his absconding yet the police has raided his houses several times in his absence and tried to arrest him on false charges.  His only crime is that he is valiantly fighting for justice for the several innocent citizens who have fallen victim to the police rapacity.  It is with great difficulty that he has been able to save himself from the mollified detention, but there is no security in future so long the Special Courts Act exists.

Further, when person is arrested, to make it almost impossible to secure his release on bail, it has been provided in the Act that the Court, while making an order must be satisfied that there are reasonable grounds for believing that such an accused is not guilty of such an offence and that he is not likely to commit any offence while on bail.  Which court will take such future guarantee for an accused?

EVERYONE GUILTY TILL PROVED INNOCENT

Section 20 of the Special Court Act puts everybody in jeopardy and the dreaded sword of Damocles hangs on everybody's head.  According to this section, if an accused person is shown to have been at a place declared as disturbed area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or other state forces, then presumption is there, unless contrary is shown that 'such a person had committed such an offence.' This section is applicable to offences under sections 121, 121A, 122, or 123 Indian Penal Code which relate to the waging of war or attempting to wage war against the Government of India, conspiracy to wage war or overawe the Govenment of India, collecting arms with the intention to wage war, and concealing with intent to facilitate design to wage war.  Thus any law abiding and innocent person can be roped in with the help of these draconian principles.  Such brutal laws have no place in a society which call itself as democratic and civilized.

AVOIDING THE PUBLIC: TRIAL IN CAMERA

Section 327 of the Criminal Procedure Code provides for open trial to which the public generally may have access, because public trial in open court acts as a check against judicial caprice or vagaries and serves as powerful instrument for creating confidence of public in fairness, objectivity and impartiality of the criminal justice.  But the Special Courts Act offends these basic norms of fair trial.  Sub-section (1) of Section 12 under the pretext of protection of witnesses provides that all proceedings before Special Court shall be conducted in camera.  This provision is serving as a cover for hiding governmental incompetence and inefficiency and police brutality.

In order to justify the existence of the special courts, the police have been hauling up large number of innocent persons, mostly in Arms Act.  More than 80 per cent cases pending in various special courts in Punjab are under Arms Act because it is easy for the police to plant a knife or pistol on anyone.  Due to trial in camera, the public has been deprived of the benefit of seeing with its own eyes as to what kind of terrorists the special courts try.  If the trial is done openly, then public can see how the police has been dragging the innocents, the poor and the deprived.  Since under the Special Courts Act accused can be detained for one year without charges being brought against him, and it may take another couple of years in detention if the trial begins, most of the accused, in spite of being innocent admit their guilt, on the advice and pressure of the police.  The police does so in order to justify the arrest of the 'real guilty' convictions in cases under Arms act generally ranges from 7 to 8 months and the accused therefore after passing 7 or 8 months in jail, deem it better to admit there as the judge of the Special Court sentences them to imprisonment already undergone and release them.  If these poor fellows do not admit the guilt then they will have to face trial for 2 to 3 years and remain in jail, which period will be far longer than they are going to get in sentence.  Mrs. Narinder Kaur, Advocate at Jalandhar, narrated the following incident, which are usual in the Special Courts:

A very poor, thin young man in tatters was brought before the Special Court and the police had advised him to make a confession that he had a knife in his pocket, so that he may be released as he had already undergone 5 months imprisonment.  This incident was in December 1984.

"Did you have a knife?" the judge asked.

"Sir, I do not have even a shirt to wear" the boy answered in feeble voice.

"Did you have a knife or not?" the judge asked.

"Sir, I feel severe cold in the night.  Please provide me some warm clothes in the night in the jail", the boy again answered.

The judge again asked in a loud angry voice. "Did you have a knife or not?"

The boy then said, in a harassed voice. “Okay Sir, if you say I had a knife, then I did have a knife.”

So the confession was made, the boy released to be roped in again in future because now he had become a confirmed convict, a confirmed terrorist.

Following is another instance:

State Vs. Sunder Singh, s/o Kaseru Singh, r/o Batala

Dist. Gurdaspur, clean shaven

U/S 25/54/59 Arms Act

FIR No. 241 dated 26.10.84 P.S. Div. No 6 Jalandhar

Sunder Singh's niece was married in Ludhiana.  He was going to Ludhiana on 23.10.84 to give some gifts and a new wrist watch to his niece.  He also had Rs. 300 with him. While on his way at Jalandhar, ISI Iqbal Singh asked him to get down from the bus and brought him to Police Post at Model Town and snatched Rs. 300/- and the watch from him, and kept him in illegal detention from 20.10.84 to 26.10.84 and gave him severe beating.  He also made Sunder Singh to write a letter for his family to bring money and his family members came and gave Rs. 400 to the ASI. A small knife was planted on him and case was registered.  As the offence fell under the Special Courts Act, no bail was granted to him. 

During his detention his father died and wife became mental.  As more than six months passed, he decided to make confession in order to be released.  But he could not even make a confession because the police had not put up challan yet.  Therefore, he requested the Court of Shri Arzinder Singh, Executive Magistrate, directing the police to put up the challan.  The Magistrate directed the police to put up the challan but the police did not do so.  Shri Sunder Singh again made an application on 18.2.85 for putting up challan and the magistrate passed an order on it on 19.2.85 directing the police to put up challan on 4.3.85 and also wrote a D.O. letter to SSP Jalandhar.  But on 4.3.85 also the challan was no put up. Then Magistrate again ordered for production of the challan in the Court and also sent his Naib to the police station.  However, the police informed that the said challan was not traceable and the next date was fixed on 16.5.85 Mrs. Narinder Kaur Varick, Advocate in the case told that there are several cases like this where the accused wants to falsely confess his guilt in order to get out of the jail, but this cannot be done because the police has been avoiding to put up the challan in the Court on one pretext or the other.

WHO IS A TERRORIST?

The people of Punjab, especially the Sikhs, have been smarting under the weight of the terrible onslaught of the definition of 'terrorist' flung over them under this Act.  At the time of the promulgation of the said Act, the people of India were led to believe that the object of the Act was to deal with the terrorists only.  But the Act is framed in such a manner that even petty crimes, family disputes, individual offences, which have no element of terrorism in them, are being tried under the Special Courts Act.

One example illustrative case is of Toti alias Jaspal Singh Vs. State of Punjab, which is pending in the Supreme Court.  The facts of the case are that on 15.7.84 at about 12.30 p.m. some accused, namely Toti alias Jaspal Singh, Bhajan Singh alias Harbhajan Singh, Harbans Singh and Harjeet Singh had a quarrel with Harvinder Pal Singh (since deceased) over the distribution of 'langar' at the Gurdwara of Ramgarhias, Jallandhar.  After about 2 hours, the said accused waylaid Harvinder Pal Singh and one Randhir Singh near their houses.  While Harbans Singh allegedly gave a fatal spade blow to Harvinder Pal Singh, Toti and Bhajan Singh allegedly gave two blows with sticks each on the person of Randhir Singh and injured him.  After being arrested, all the aforesaid four accused filed bail applications in the court of Shri Jai Singh Sekhon, Sessions Judge, Jalandhar.  The Judge accepted the bail of Toti and Bhajan Singh but refused bail to other accused.  The Judge observed that the case of Toti and Bhajan Singh stood on a different footing as they were alleged to have given only simple injuries on the person of Randhir Singh.  The learned Sessions Judge also held that the act of these two accused did not fall within the definition of 'terrorist' as defined in section 2(h) of the said Act and that it was a stray incident.

Aggrieved by the above order of the Section Judge releasing Toti and Bhajan Singh on bail, the brother of the deceased filed a petition in the Punjab and Haryana High Court for quashing the order of the Sessions Judge and cancellation of the bail, on the ground that the acts of Toti and Bhajan Singh fell within the definition of 'terrorist' as defined in the Special Courts Act and therefore the Sessions Judge had no jurisdiction to hear the matter and only Special Court had jurisdiction over the same.  This petition was heard along with similar other petition CRP No. 1292 of 1984 in the case of State of Punjab Vs. Piara Singh and the High Court disposed of both the petitions with the common judgment on 21.9.1984.  Justice M. M. Punchhi, the learned judge of the High Court quashed the order of the district and Sessions Judge holding that the said Sessions Judge had no jurisdiction to hear the said bail applications because the offences were covered under the Terrorist Affected Areas (Special Courts) Act 1984.  The judge further declared that the purpose of the Special Courts is not only to try the 'terrorists' but also other accused who have committed the scheduled offences.  The judge said, "...It is a fallacy to say that the special courts are set up to try special offenders.  They have been set up rather to try scheduled offences committed by offenders, whether terrorist or non-terrorist."

Therefore while general impression has been created in the rest of India that special courts have been established to try special offenders i.e. the terrorists, but the fact is that these courts are mainly busy in trying the cases of the non-terrorists.  The Special Courts Act has been so vaguely worded that even the offences of a purely private nature like murder or injury in a domestic quarrel which do not have any element of terrorism in them are being tried by the Special Courts with the sole purpose of harassing the public.

The appeal pending in the Supreme Court has one of the grounds, amongst others, that there is a discrimination patent on the face of the Special Courts Act. In as much as whether an offence has a connection with terrorist activity or not the accused concerned have been clubbed together with persons charged with offences involving terrorist activities and therefore this Act becomes unconstitutional being violative of the Articles 14, 19, 21 and 22 of the Constitution.  Another writ petition challenging the constitutionality of the Special Courts Act has also been pending in the Supreme Court since October 1984.  As the Supreme Court has not yet pronounced any judgment in the aforesaid two cases, many people in Punjab are feeling very bitter and sore over this delay in the Supreme Court because the decisions in these cases are going to have a great bearing on the fate of the people of Punjab.

A FUTILE CAUSE

The ruthless repression in Punjab has been inspired by the belief that the so-called Punjab extremists are being aided and encouraged by the foreign power.  It would not be out of place to mention similar parallel during the British repression of Punjab in 1919.  At the time also there was a belief in the government circles that the Punjab was on the verge of rebellion, and extremists in Punjab were being aided by German, Afghan and Pan-Islamic agents.  However, in their secret correspondence, Sir C. R. Cleveland, the Director of the government of India's Intelligence Bureau, wrote to M. L. Robertson, Bombay, Inspector General of Police on May 23, 1919--"So far no trace of organized conspiracy have been found in the Punjab. There was organized agitation, and then in particular place the people went mad. I am sorry to say that the Times of India and the Pioneer have committed themselves to the theory of Bolshevism or Egyptian instigation for our Indian troubles.  I have satisfied myself that they have no evidence worth the name to support the theory."

While the Indian national Congress had appointed its own committee known as the 'Congress Punjab Inquiry Committee' to investigate into Punjab atrocities, the British Government had to appoint its own Commission, known as the 'Hunter Commission' for the same purpose on Public demand.  Even the Hunter Commission in its report agreed that "there was no evidence to show that the outbreak in the Punjab was part of a pre-arranged conspiracy to overthrow the British Government in India by force." However, at present, thousands of Sikh youths are imprisoned in various Punjab jails in the country on the charges of waging of war against the Government--entirely on the basis of one-sided version.  The Government of the free India does not even see the need of some impartial agency to investigate into Punjab disturbances on the lines of the 'Hunter Commission'.

The Indian National Congress held its next annual session at Amritsar on 25 December 1919 to mark its protests against Punjab atrocities.  However, at the same time, King of England issued a Royal proclamation which announced political amnesty and expressed admirable sentiments.  "So far as possible", King George Vth had declared, "any trace of bitterness between my people and those who are responsible for my government should be obliterated."  The Royal Proclamation came as a balm to the assembled leaders at Amritsar.  They expressed their 'humble appreciation' of the Proclamation. 

"This is a document", affirmed Gandhi, "of which the British people have every reason to be proud and with which every India ought to be satisfied."

But now in free India, on comparison, the attitude and actions of our present rulers seem to be worse that those of the British Government in relation to Punjab.  In spite of the recent Rajiv-Longowal accord, thousands of innocents are languishing in different jails in the country, and the cases of the other thousands of innocents are simply going to be transferred from special courts to the ordinary courts.  This second gesture of transferring cases from special courts to the ordinary courts has not much meaning in effect because the period of keeping an accused in detention for one year without submitting challan was soon going to be exhausted in a month or so in most of the cases and a large number of them were automatically likely to be released because of the failure of the police in submitting challan within the prescribed time of one year.

It is also worth mentioning that before deciding not to extend the term of the Terrorist Affected Areas (Special Courts) Act, 1984 (this does not effect the pending cases) beyond July 1985 the Government armed itself with another repressive measure i.e. The Terrorist and Disruptive (Prevention) Act, 1985 in May, which contain similar draconian provisions as in the former Act.  In the latter Act, the Special Courts are going to function under the label of 'Designated courts".  Moreover, another dreadful Black Law i.e. National Security Act, still hangs over the heads of the people like the Sword of Damocles.

While discussing constant attempts of the Government to use such Black Laws for continuous repression of the people, one old man remarked:

(NASHEMAN PAR NASHEMAN IS KADAR TAMIR KARTA JA, KI BIJLI GIRTE GIRTE

KHUD BE JAR HO JAYE)

You go on building your mansions in such a manner, that the thunderbolt, after repeated attacks, becomes tired and exhausted.

Source: Report to the Nation: Oppression in Punjab