Announced on December 11, 1984
- 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.
- 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.
- 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 defence. Moreover, the burden of his detention falls 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 how the deletion of section 438 of the Cr. P.C. for the people in Punjab has brought misforture and havoc for the innocent persons. The case of Shri Paramjit Songh 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 malafide detention, but there is no security in future so long the Special Courts Act exists. Further, when a 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 Government 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 it 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 has 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 their 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, and 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 not put up. Then 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 is the case of ‘State Vs. Girdhari Lal in Jalandhar Special Court. Girdhari Lal was only 16 years old and was working in a shop of Surgical instruments’’. His proprietor had a dispute with his neighbor over the shop building which belonged to the Wagf. The other party, with the help of the police, got Girdhari Lal implicated in a false case under Arms Act. A small knife was planted on him. The police generally plants a knife on a Hindu and a pistol or Barchha on a Sikh. Girdhari Lal could come out only after making a confession before the Special Court, after remaining in jail for about 8 months.
Another very important 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 ona 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 terrorists or non-terrorists.”
Therefore while general impression has been created in the rest of India that special courts have been established to try special offenders ie 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 ultra-vires and 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 than 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 affect 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.
