Justice On Trial

Two stark accounts of the deficiencies in our law-and-order system

Colours of the Cage: A Prison Memoir Arun Ferreira Aleph Book Company 176 pages, Rs. 295 {{name}}
Colours of the Cage: A Prison Memoir Arun Ferreira Aleph Book Company 176 pages, Rs. 295 {{name}}
01 January, 2015

TEN THOUSAND ADDITIONAL SOLDIERS are now being sent to the forests of central and eastern India to counter Maoist insurgents, but most signs point towards protraction and stalemate. In the past decade of fighting, we have gotten used to the routines of this war. Newspaper dispatches from the conflict zone read like a lullaby of arrests and deaths—a few here, a few there, with names rarely mentioned. But every so often, like an alarm going off during a dream, the routine is interrupted, and headlines blare that the Maoist “infestation” still lurks, its destructiveness had only lain dormant. Passenger trains are bombed and derailed, a government convoy ambushed, influential politicians summarily shot—and we recall that somewhere out there, in places from which we are far removed, India is at war with itself.

Two such alarms went off in the span of one week in mid May 2007, when Binayak Sen and Arun Ferreira were both arrested, albeit in separate cases and in separate states. Ferreira was accused of taking part in the planning of various terrorist attacks, while Sen was accused of acting as a courier between a jailed Maoist operative and a businessman sympathetic to the Maoist cause. Their arrests were alarming and memorable to many because both men belonged to the urban middle class. Ferreira, then a social activist and now a student of law, hails from a Catholic family in Bandra, a peaceful and prosperous Mumbai suburb. Sen, from Kolkata, graduated from Christian Medical College in Vellore, one of India’s best training grounds for the profession, and founded a public health non-profit.

Arun Ferreira drew many scenes from the four years and eight months of brutality and torture he endured in Nagpur Central Jail. Javed Iqbal

If we look beyond the post-arrest press releases and the mainstream media’s rehashing of them, Sen and Ferreira seem ideal citizens, with deep faith in the constitution’s creed and a commitment to helping those less fortunate than themselves. This latter conviction in particular took both men to remote areas of central India. Their work brought them into constant contact with a population disaffected by the Indian state’s simultaneous absence and presence. Rural Chhattisgarh, where Sen established his non-profit, and the Vidarbha region in east Maharashtra, where Ferreira was active, have long lacked public infrastructure, but buzz with police who operate with state-sanctioned impunity. In June 2012, for instance, in a village in southern Chhattisgarh called Sarkeguda, officers of the Central Reserve Police Force murdered 17 people, including minors, who had gathered to plan the annual harvest festival. The CRPF then claimed that at least seven of them were Maoist soldiers, a charge that survivors of that night vehemently deny. According to the social activist Himanshu Kumar, whose own ashram was razed by Chhattisgarh’s state government after he made attempts to publicise such abuses, similar raids have occurred in over a hundred villages across the state in the past decade. Resistance seems an inevitable response in such cases, and the Maoists have gained adherents in both Chhattisgarh and Vidarbha by capitalising on the state’s heavy-handedness, if only to retaliate with their own brutal terror.

Ferreira and Sen learned to criticise the state out there, where it is most insecure. They learned to be sceptical of a judicial system that seldom punishes security forces, and detains innocents for years on end without charge. And despite the risk that they themselves might be mistaken as Maoists, they dug in to their work. When we spoke in a sunny room in Bandra recently, Ferreira did acknowledge that he had worked with groups that were anti-capitalist, anti-globalisation, and in favour of what he called “leftist revolution.” But he said the groups were neither violent nor part of the banned Maoist party; anyway, he said he had only helped them file RTI applications, and had tried to unionise workers. All the same, Ferreira said that violent uprising is understandable as a response to even greater violence from the state. “I see what the Maoists are doing and I don’t think of it as necessarily wrong,” he said. “To judge any movement on violence versus non-violence is just being too mechanical, or being box-minded, and expecting reality to fit into the boxes you made. But reality is far more complex than that.”

After his arrest in 2007, Ferreira became known in the press as the “Bandra Naxalite,” and at one point appeared on front pages with a hood over his head, squatting next to triumphant policemen who claimed he was the chief of propaganda and communications for the now banned Communist Party of India (Maoist). Many journalists were quick to drop the word “alleged” from before the word “Naxalite,” replacing it with perennial favourites such as “dreaded” or “hardcore.” It appeared that being a social activist in an area where Maoists were active was enough to have Ferreira reflexively presumed guilty. The courts too, acting on the police’s strong assertion of Ferreira’s guilt (built primarily upon the fact that they caught him with a flash drive in his pocket), repeatedly denied him bail. He spent four years and eight months in Nagpur Central Jail, battling an ever-expanding set of charges, including for attacks he would have had to have planned while under solitary confinement.

This September, Ferreira released Colours of the Cage: A Prison Memoir, a straightforward account of his (and his fellow inmates’) imprisonment and legal battles, which were anything but straightforward. In the book, Ferreira describes police brutality and torture, and a harrowing litany of violations of prisoners’ dignity and rights, in clear contravention of various Indian laws. Vengeance, however, is not his objective, and he uses pseudonyms to hide the identities of the officials and police officers he suffered under. Instead, he shifts his aim towards “the brutality of the system in which they work.” Ferreira’s writing is imbued with the earnest anger of someone who was stolen from his family (including a son who was two years old at the time of the arrest) and his work, and feels that telling his story is the only way he can unearth the truth and move on with his life.

Ferreira told me that an additional goal in recounting his experience was to make a political statement about the dysfunctionality of the Indian prison and judicial systems. But his memoir doesn’t read like a manifesto. Its chronological retelling plays before the reader’s eyes like a grim drama, going from one ordeal to the next. Through Ferreira’s eyes, Nagpur Central appears as India’s own Guantanamo Bay or Abu Ghraib. Tortured screams are muffled, faces viciously bashed in, nights are spent sleeping packed like sardines on stone floors. During the day, surrounded by intense heat and filth, inmates catch and cook squirrels and bandicoots to supplement the meagre, half-cooked slop they’re served.

Ferreira, like Sen, was charged under the Unlawful Activities (Prevention) Act, or the UAPA. The act was amended after the terrorist attacks on Mumbai in 2008 as an extension of similar provisions known by their own acronyms, TADA and POTA. The UAPA grants the police and armed forces special immunities from oversight and prosecution in order to root out any action that “causes or is intended to cause disaffection against India.” Unlike TADA and POTA, the UAPA has no “sunset clause,” meaning the immunities it grants have no expiration date.

Sen and Ferreira’s cases are cautionary examples of how the state can use the UAPA to ensnare those against whom the evidence is tenuous at best. The UAPA appears to criminalise sympathy for any banned organisation, by making even the “intent to further the activity” of such a group an offence. Anyone verbalising support, thus implying association and membership, can receive a ten-year sentence.

But the UAPA has not gone unchallenged. Justice Abhay Thipsay, of the Bombay High Court, recently argued in a case similar to Ferreira’s that numerous sections of the UAPA violate parts of the Constitution that guarantee freedom of speech, the right to form unions, and the right to assemble peacefully. Quoting from a Supreme Court judgment, Thipsay said, “Mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence.” He added that a belief in Maoist or other revolutionary principles was not valid ground for charging someone with a crime. The judgment continued:

The same views regarding social inequality are expressed by several national and eminent leaders and the expression for these views cannot brand a person as a member of CPI-Maoist. On the contrary, such a reasoning would indicate that these issues, which are real and important, are not addressed to by anyone else, except the CPI-Maoist, which would mean that the other parties or social organisations are indifferent to these problems faced by the society.

None of these considerations were applied in Ferreira’s case. Cynically, the police accused him of plotting to bomb Deekshabhoomi, the holiest place for Ambedkarite Dalits, where hundreds of thousands of them converted to Buddhism in 1956. As they lacked any evidence of this plan, Ferreira recounts in the book that the police threatened to kill him in a fake encounter if he didn’t confess to it. When he didn’t break, they beat him with belts, starved him, forced him to keep his arms raised for hours, and kept him awake for days. Other alleged Naxalites in Nagpur Central had petrol injected into their rectums, leading to days of anal bleeding, blood clots, burning sensations in the intestines, and continuous belching. Confessions extracted through torture are inadmissible in court, but the policemen who dealt with Ferreira were apparently relying on loopholes that they were used to exploiting.

All the above happened before the defendants had seen a day in court. According to the National Crime Records Bureau’s data for 2012, more than two-thirds of all inmates of Indian prisons—around 265,000 people—were still awaiting trial. Over three thousand had been waiting for more than five years. Bail is rarely given to undertrials charged under the UAPA, as they are seen as national security threats. Some jails in “Maoist-affected” areas in Chhattisgarh for instance are filled to six times their capacity, and inmates sleep in shifts for lack of space.

THE DEFICIENCIES OF INDIA’S LAW and order system are even more stark in the case of Binayak Sen. In the early 1980s, Sen took his medical degree to rural Chhattisgarh, where healthcare largely was, and remains, rudimentary or completely inaccessible. There, he helped found a rural hospital, and provided lifesaving services that the state had failed to deliver. Sen saw advocating for humane and holistic development as inextricable from his mission to provide healthcare. He openly criticised the state and its affiliated militias for their abuses, just as he did the Maoist militias, both of whom prevented people from accessing his medical services. In time, he became the leader of Chhattisgarh’s branch of the People’s Union for Civil Liberties.

For the two years Binayak Sen was in jail, his supporters across India and the world dedicated rallies, songs and poems to the hope of his release. Courtesy ViBGYOR Film Collective / Creative Commons

Sen’s arrest, on charges of sedition, was based on dozens of visits he paid in his capacity as a doctor to Narayan Sanyal, a jailed man found guilty of being a Maoist leader. Though the police explicitly permitted Sen’s visits, and a monitor was always present, Sen was accused of smuggling letters, under the policemen’s noses, from Sanyal to Piyush Guha, an apparently revolutionary businessman. Presumably due to Sen’s leadership of the PUCL, his arrest garnered unprecedented international attention. It only took seven months for his trial to begin, and two years for him to get bail. In those two years, twenty-two Nobel laureates petitioned against his incarceration, requesting that Sen be allowed to travel to the United States to receive an international award for his public health and human rights work. Eight observers from the European Union were present at one of his bail hearings in Raipur. Between 2007 and 2009, while Sen was in jail, rallies and songs and poems across India were dedicated to hopes for his release. Perhaps sensing that for once they were being closely watched, the police did not try to torture a confession out of Sen, as they had with Ferreira and countless others.

But the pressure did not stop the police from putting together an investigation docket filled with baseless and paranoid insinuations. In The Curious Case of Binayak Sen, Dilip D’Souza’s 2012 book on Sen and his trial, the author makes abundantly clear that the charges against Sen are preposterous. Writing in the tone of a scandalised citizen, D’Souza outlines the lazy innuendo underlying the life sentence Sen eventually received. In hundreds of pages submitted to the Raipur Sessions Court, the police mistake family nicknames mentioned in files and emails on Sen’s computer for code names of Maoist operatives; the Indian Social Institute in New Delhi for Pakistan’s Inter-Services Intelligence agency; and an email sent by Sen’s teenaged daughter to the publisher Scholastic India as a request for suspicious literature. These are some of the least brazen examples. D’Souza is, if anything, overly generous to the court and police in his choice of adjective in the book’s title.

The Curious Case of Binayak Sen Dilip D’Souza HarperCollins India 192 pages, Rs. 250 {{name}}

D’Souza began writing the book soon after Sen was released on bail, in April 2011. Sen has since been acquitted on some charges, but is still appealing his life sentence, which hinges on several clauses of the UAPA. Like Ferreira’s book, D’Souza’s is more than just a narrative of injustice; it is an appeal for the practice of the kind of scepticism towards the courts, the police and the government that is essential to democracy. He implores readers to carefully study the court documents, which are partially reproduced in the book. But instead of responding to them as a journalist or a lawyer might, he asks each person to react “as any ordinary Indian citizen would, and assess how you feel.”

I get the sense that the “ordinary” citizen D’Souza has envisioned is someone from the middle or upper class, like Ferreira or Sen themselves. For such a reader, it is imperative to remember that for all their humility, the two stories are of relatively privileged men. Thousands of poor and tribal people suffer far worse, and we scarcely hear their stories. Still, Sen and Ferreira tried to alleviate that suffering in Chhattisgarh and Vidarbha, and paid an unconscionable price. With the publishing of their stories, we might hope that they will be remembered as the courageous men they are.