An Open Letter On Undertrials
Adivasis need speedy and impartial justice, for humanitarian and strategic reasons
To the Government of India, Members of the Judiciary, and All Citizens,
One of the most disastrous consequences of the strife in the tribal areas of central India is that thousands of adivasi men and women remain imprisoned as under-trials, often many years after being arrested, accused of ‘Naxalite/ Maoist’ offences.
The facts speak for themselves. In Chhattisgarh, over two thousand adivasis are currently in jail, charged with ‘Naxalite/ Maoist’ offences. Many have been imprisoned for over two years without trial. In Jharkhand, an even larger number of adivasis, possibly in excess of five thousand, remain imprisoned as under-trials. The situation is similar in many other states of central and eastern India currently affected by armed conflict between the government and adivasi-linked militant movements, namely Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Odisha and West Bengal. The adivasi undertrial population may run into thousands in each of the states. Assessing the true scale of the problem is inherently difficult, given that none of the police or jail administrations are making comprehensive figures public, even after RTI requests have been filed by concerned citizens. This opacity adds to the injustice.
In each of these states, the adivasi under-trials, and particularly those arrested under special security statutes, face grave common handicaps that obstruct their Constitutional right to a fair, speedy trial, to justice.
One, language barriers. The vast majority of adivasi undertrials speak only adivasi languages, such as Gondi and Halbi. However, few if any courts have official interpreters/translators. This leaves the adivasis unable to communicate directly with the Officers of the Court or otherwise effectively make their case.
Two, the failure, in case after case, for evidentiary material, such as captured arms or explosives, to be promptly submitted in court by the security forces when they first produce the detainees before the Magistrate, as the Magistrate can statutorily direct the security forces to do when they level such serious charges. In the absence of prima facie proof, the grave risk of injustice being done to innocent adivasis is self-evident.
Three, procedural barriers relating to ‘Naxalite/Maoist’ and other security offences. Being charged with such offences, the under-trials are not produced in the courts for lengthy periods. Owing to this, the trial does not proceed for years together.
Four, other procedural barriers. Since under-trials charged with ‘Naxalite/Maoist’ offences are only held in Central Jails, many of them of them are transferred to jails at a great distance from their homes and families. In Chhattisgarh, for instance, nearly one hundred adivasi under-trials from Bastar have been transferred to Durg or Raipur Central Jails, a distance of over 300 kilometers. The great distance, coupled with the poverty of most adivasis, means that families are unable to regularly visit them or provide them with vital emotional support.
Five, the lack of proper legal defence. Lawyers who visit ‘Naxal/ Maoist’ under-trials in Chhattisgarh are photographed by the authorities and their information listed in a separate register, making lawyers reluctant to visit their clients. In any event, many of the adivasi under-trials are dependent on legal-aid lawyers who rarely go to meet the client or seek instructions regarding the case. Often lawyers are careless in their conduct of cases and are amenable to pressures from the police or prosecution.
In addition to the humanitarian imperative, the prolonged failure to provide speedy and impartial justice to these thousands of adivasi under-trials is damaging the prospects for peace in India’s heartland – by leading adivasis to feel that the Indian government does not treat them as full citizens and by intensifying their generalised sense of alienation. It is telling that in the widely publicised “Collector abduction” incidents of Chhattisgarh and Odisha, one of the major demands raised by the insurgents was speedy and fair trial for these thousands of jailed adivasis, accused of being Naxalites/Maoists. Yet, virtually none of the efforts belatedly agreed to by the state governments – such as the ‘High-powered Committee for review of the cases of Adivasi undertrials in Chhattisgarh’, set up in mid-2012 under the aegis of Nirmala Buch, the former top IAS officer – have come to fruition or been acted on to any degree by the concerned governments.
More than anything else, the failure to ensure justice for the adivasis is a grave blot on India’s human rights record. Not only are we as a nation committed to democracy and human rights, but our Constitution provides extensive safeguards and rights to the adivasis that are being violated by not ensuring fair and speedy trials for these thousands of adivasi under-trials.
On every count – whether humanitarian or strategic – it is imperative that this prolonged failure to assure our country’s adivasis of speedy, impartial justice be set right immediately.
Justice is in everyone’s interest. Hence, we the undersigned, a large group of concerned Indians – including adivasi leaders, jurists and lawyers, and public intellectuals – urge the Union Government, the concerned State Governments, and the Supreme Court to undertake to appoint a special Commission of eminent jurists to oversee dedicated fasttrack courts that hear these cases speedily and impartially.
VR Krishna Iyer, Mahasweta Devi, Swami Agnivesh, Nandita Das, Nitin Desai, GN Devy, Jean Dreze, Gladson Dungdung, Anand Grover, Ramachandra Guha, Girish Karnad, Manish Kunjam, Harsh Mander, Vinod Mehta, Arvind Netam, Rajinder Sachar, BD Sharma, Nandini Sundar, Father Stan Swamy, Tarun Tejpal, Mukti Prakash Tirkey
Guaranteed the same protection under law as the rest of us
Source: Times of India, Delhi Edition 6.5.2013