TADA injustice continues unabated
Tada may have been repealed, or allowed to lapse, since long but people arrested using or misusing this draconian law continue to suffer endlessly in various parts of the country. The following report is about the plight of the TADA detainees in Mumbai. It has been compiled by two eminent lawyers of the Supreme Court of India.
The majority of TADA detainees around the country are Muslims and many have been falsely implicated or their cases are not terrorist-nature which was the excuse for enacting the law in the first place. Due to its gross misuse the law was allowed to lapse- but those already` booked under this so-called law continue to languish- Jails suffering from the proverbial sluggishness of Indian Judicial System.
Another sinister aspect of the TADA under-trials in Mumbai is that they feel safe behind bars since many of them have been liquidated as soon as they came out on bail.‘Chota Rajan gang’ is alleged to have murdered them but there is speculation that it may be the handiwork of some official agency. Here is the report of two supreme Court advocates who recently visited Mumbai to study the plight.
1. Our Journey started on 26.12.1999 to Bombay returned to Delhi on 30.12.1999
2. Date of visit 27 to 28 December, 1999.
3. Visited Arthur Road Central Jail Bombay on 28.12.1999.
4. Watched the court proceedings of the Bomb Blast TADA court Bombay in the premises of Central Jail on 28.12.1999
5. Special passes were issued by the Designated Judge Mr. P. D. Gode. No other lawyers, mediamen are allowed inside jail and court in the above case except the lawyers who have filed
6. Court proceedings were open and the statement of I.O. was being recorded at that time.
7. Court proceedings appeared satisfactory.
8. In jail we met all the under-trails whose bail have not been granted.
9. We also met other under-trials who were on bail and had come to attend their case.
10. We also met some other social workers and lawyers, namely, Mrs. Farhana Shah, Mr.
Vishwakarma, and 3 other junior lawyers who were present in court on that day.
CONDITIONS OF UNDER TRIAL AND TRIAL
11. Mostly they are from very poor family background so they were badly tortured when they were arrested at the hands of Police.
12. After their arrest their photographs were taken by the police and it was threatened that these photographs are beings handed over to Shiv Sainiks as soon as you will be released on bail you shall be killed by them.
13. That perhaps 4 accused who were released on bail and were murdered by the so called plain cloth dressed persons Policemen but it was declared that Chota Rajan Group has killed them.
14. Most of these undertrials were shabbily dressed and were disappointed of their detention as they were in jail for last 7 years without bail.
15. That their case was being defended by the Amicus Curiae (AC) on nominal Government expenses because they are unable to defend their cases and they are unable to engage lawyer of their choice due to their financial conditions.
16. This is a very serious case and the usual punishment in such cases is death sentence that is capital punishment.
17. A counsel Mr. Majeed Memon [not designated senior advocate but has good standing] has been engaged by a few accused persons but he was not present on that date and his participation in the proceedings are casual and one of the junior counsel was said to be his assistant was present.
18. In such cases not only competent but also intelligent vigilant counsels are needed.
19. Court proceedings of this case is day to day.
20. There are three sets of charges in this case-
a) Those who have been charged with direct commission of offense of Bomb Blasts.
b) Those who have been charged with the landing of packets of RDX etc.
c) Those who have been charged with the conspiracy for committing this offense.
d ) Some other miscellaneous type of collaboration such as harboring etc
21. Charge-sheet alone comprised of 10,000 pages and the statement of PWs are in 30,000 pages.
22. There are other documents which have been filed by the prosecution- About 10,000 pages.
23. There are 51 Investigating officers still to be examined. It shall take about 6 months more time to examine all of them as there are about 51
24. Then the statement of accused persons shall be recorded.
25. The accused persons may also adduce their defense ocular or documentary evidence.
26. Than there shall be argument of both sides.
27. This case may take 4-5 years more.
28. 31 accused are in jail; their bail has not been granted.
29. Some accused are on bail, some on interim bail and some have been released on medical ground.
30. About 38 accused are absconding and this case is proceedings against them in absentia.
31. This case is being taken up day to day. The lawyers are unable to represent them every day except a few lawyers who are junior and A. C. This is due to:-
a) Competent lawyer cannot represent them every day as they have to do other cases in other courts.
b) Perhaps the accused are unable to pay their adequate fee.
c ) It is not easy to attend a single case for years together.
SUGGESTION FOR LEGAL AID
32.There should be regular supervision, guidance and constant monitoring from competent lawyers that is:-
a) From Supreme Court Level and
b) From Local Levels that is from Bombay and day to day proceedings should be processed every day by at least two competent lawyers. It may hardly take one hour at any time in a day.
c) At least two competent lawyers should remain present in court room every day.
d ) About 4 assisting lawyers should assist their two senior lawyers. e ) At least one Marathi speaking junior lawyer should also be present in court every day.
This can only be possible if the lawyers are regularly, adequately and handsomely paid. These lawyers shall take interest only on payment of their fees because they will have to leave their other cases.
a) At least two set of file is needed here at Supreme Court which may only be obtained from Bombay on spending one Lac of rupees.
b) At least one set of brief should be prepared at Bombay and if possible 2 sets as there is no complete file with any lawyer.
33. Accused who are still in jail and their bail have been rejected or canceled their application for bail can be moved here before the Supreme Court on the ground of their length of detention and on other grounds.
34. That the fortnightly or monthly processing should also be done by the lawyers at the Supreme Court Level who have been entrusted with this work.
35. Office of the lawyer dealing with these cases may be used for the said purpose, as such it can be used on some nominal monthly payment.
36. On the spot inquiry and visit of the delegation of lawyers of Supreme Court reveals that this case should be vigilantly, intelligently and vigorously pursued and should be handled by only competent lawyers as lives of 180 persons are on the stake. Formal pairwi by lawyers, diligently mishandling may create problems for them and may result in miscarriage of justice consequently loss of valuable lives of accused as they are unable to defend themselves adequately.
37. The fee of the competent senior lawyers should be settled on per day basis.
38. The fee of assisting lawyers should also be settled on weekly or fortnightly or monthly basis.
39. The fee of lawyers who will be deputed for processing everyday should also be settled weekly.
40. The expenses of the permanent office should also be estimated monthly.
41. So also the expenses of Supreme Court level also estimated for office expenses and for monitoring.
42. In this case political pressure from the side of secular, Human rightist and Muslim leaders is also necessary because this case is the direct result of another political event.
43.No similar bill allowed to be introduced in the parliament to replace the ‘TADA’ Act.
44.There should be approach to the Central as well as State Government to review the cases of the accused persons and to discharge them as they have already undergone for 7 years.
45. That CBI should not file appeal in cases of bail if granted to the accused. This is possible only when Government of India takes a lenient favorable view.
46. It is also suggested that Muslim leaders should watch this case by holding a monthly meetings in Camera and should have acquaintance with the proceedings and development of this case.
47. Most of the detained accused were in despair and their condition was pitiable and our visit has boosted their morale and we saw brightness on their faces on our assurance of our legal aid in trial court and also in the Supreme Court.
48. That conditions of bail of the accused persons are very harsh. On every day or twice in a week they have to attend their respective police stations and 3, 4 times in every months they are bound to attend the TADA court, meaning thereby, they cannot do any job or business anywhere. Which is responsible for their deteriorating economic conditions. As such these bail orders are practically not workable. In our opinion petition should be filed in Supreme Court to remove or case the bail conditions.With these suggestions we hereby submit this report to you for further consideration and necessary action.
DR NAFIS AHMAD SIDDIQUI
Advocate, Supreme Court
MOHAMMAD TAIYAB KHAN
Advocate, Supreme Court