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Janhit (Chhattisgarh) Bulletin August 2011

13 August 2011

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From: Sudha Bharadwaj
Date: Sat, Aug 13, 2011 at 8:50 AM
Subject:

JANHIT (Chhattisgarh) BULLETIN - AUGUST 2011

Dear friends,

It’s a long time since this bulletin came out, and that is only because Janhit has been flooded with so many requests for legal help - large and small - by organizations, activists and “peedit†persons from all over Chhattisgarh, that we have been working round the clock, straining our limited resources – human and financial!

Organizational situation of Janhit (Chhattisgarh)

Apart from Sudha and Anukul - the full time Janhit team at Bilaspur, we get the help of some part time professional lawyers in Rajnandgaon, Durg, Raipur, Baloda Bazar, and Simga who take up trade union cases and criminal cases arising from trade union activities. In the High Court we collaborate with the HRLN team – Alban, Rajni, Kishore and Amarnathji; and also work closely with friendly lawyers Mahendra and Rahul in criminal matters and PILs. Our young colleagues Smiti, Neelabh and Shishir are always ready to pitch in with legal research. Socially committed women lawyers - Poonam and Rekha - support us enthusiastically from Durg, and Father Josy does painstaking legal work for the very poor in Janjgir Champa. We gratefully acknowledge all these friends, who may not all be formally a part of Janhit and whose help is largely voluntary. Without them, the work of Janhit could never have taken the shape it has today.

Janhit is struggling to cope with the demands being made upon it. We need to support one or two more full time lawyers on some modest remuneration, and also widen our part time support to lawyers in district courts in Jashpur, Raigarh and Jagdalpur/ Dantewada. In the kind of cases we do, gathering data from RTI, photocopying and also travel entails considerable expense. So we request you to widen our circle of support and enlist some more regular contributors.

Here is a report of just a few of the interesting cases we have been doing in the past year.

  • Whether Ramesh Agrawal or Bhagwati Sahu – victims of malicious corporate litigation get no relief from the High Court.

Our recent experiences in trying to get bail for social activists Ramesh Agrawal, Harihar Patel and Bhagwati Sahu, all facing malicious criminal prosecution by companies, have been shocking. Ramesh and Harihar were arrested illegally in a non-cognizable offence without a warrant issued by the Magistrate, on a complaint by a Manager of Jindal. Their bails were rejected by the Sessions Court on the specious ground that it had not been revealed that anticipatory bail applications were pending in the High Court. Whereas in the case of Harihar Patel no such application was pending, and even if so, such an application would be infructuous after their arrest. The High Court (Justice TP Sharma) refused to enter into the merits of the case and rejected their application for bail. And all this, in an alleged offence of incitement in a public hearing, where even the ingredients of the case were not made out. At every stage of the legal process the highly paid lawyers of Jindal were present, objecting and generally throwing their weight around. Even in the High Court, the managers and lawyers of Jindal were highly visible. Finally Harihar Patel could get bail from the Sessions Court and Ramesh Agrawal from the Supreme Court, but not without a campaign in Chhattisgarh and nationally for their release.

Bhagwati Sahu, a popular leader of contract workers of Ambuja Cement (now Swiss multinational Holcim) and of peasants displaced by the plant, and an elected Janpad Panchayat member has been falsely implicated in a dacoity case by the Ambuja Cement through a Security Officer and has been in jail now for 3 months. His bail was rejected by the High Court mainly on the ground of “criminal antecedents†. The prosecution gave a list of 18 cases, which actually turned out to be 9 cases (the same cases were repeated several times over), out of which Bhagwati is implicated only in 5 cases. Out of these 5 cases, 3 are under Sections 107/116 of the Cr.P.C. for preventive detention and do not amount to any offence. The other 2 are under Section 341 (chhakka jam). All the cases relate to trade union activities. Now the charge sheet has been filed showing only a minor injury to the complainant. The allegation is supported only by the statements of security officers – all employees of Ambuja, whereas shopkeepers at the site of the incident have testified only to a fracas situation. It is pertinent that the company hired the son of a recently elevated High Court judge as an “objector†in the bail application.

What is to be done when powerful corporations file false cases against inconvenient activists and are hell bent on keeping them in jail? Worse still, when they have an obvious influence over the judiciary?
We are grappling with these questions.

  • Who will judge the judges?

Janhit has some unusually brave “clients†. One of them is Rashmi Nanda, presently an Assistant Prosecutor at Dhamtari and a candidate for the Civil Judge examination of 2008, who has challenged blatant corruption and nepotism in judicial appointments. Having obtained answer sheets in the RTI demonstrating tampering and overwriting of marks, she has challenged the appointments of several civil judges who were the children and relatives of powerful persons. One of them, an erstwhile Law Secretary, has since been elevated as a High Court judge. Rashmi’s petition has been kept deliberately pending since the year 2008 and after seeing several lawyers buckle under pressure, she approached us. More shocking is that her Transfer Petition in the Supreme Court was rejected saying that, merely because a matter is not being heard expeditiously, it does not deserve to be transferred. The substantive ground of conflict of interest and the fear that she may not get justice in the High Court was never considered by the Supreme Court. Clearly it is not only Allahabad that can remind one of the “State of Denmark†.

  • The Strange Case of Sanau Kadiyam

Sanau Kadiyam is a PDS salesman in Village Irapgutta, Tehsil Pakhanjur, district North Bastar. When the BSF camp was set up in this “dhur Naxal prabhavit†area, the BSF wanted to terrorise the villagers especially any educated adivasi, who has access to the town and has the “power†to distribute rice. He was called to the camp and beaten black and blue till he fainted. But he had the courage to complain about this. The Sub Divisional Officer of Police came to take his statement and forgot about it. The State Tribal Welfare Commission simply did not respond. Harrasment by the BSF increased. On 28th September 2010, Section 144 was declared in most parts of the country since the Supreme Court was due to pass an Order with regard to the Babri Masjid demolition dispute. Sanau was informed by his family on the telephone that, since he could not return from Kanker that day, the BSF have surrounded their house and are threatening to arrest and kill his family members since they believe that he has gone to contact Naxalites. We filed a case for protection to Sanau and his family, and justice for the earlier assault upon him. The State responded by declaring him an “inami naxali†(wanted Naxalite with a prize on his head) on the basis of a minor case in a village in faraway Rajnandgaon district, where he has never been, and in the process several discrepancies are visible on the face of the record. So far, Sanau is still in his village. He says that the BSF had called him again. This time when he went with some of the village Panches, he was served tea and biscuits and asked “But why did you go to the High Court? Even we have filed a case against you.â€

  • Labour disputes and Civil suits

Labour jurisprudence, patiently built up in decades, is being eroded - indeed bulldozed - at a rapid pace. One of the principles enshrined in the Trade Union Act is that the jurisdiction of civil courts is barred in labour disputes, and the office bearers and members of a registered union cannot be made responsible for civil liabilities for instance losses during a strike, or other labour unrest. The theoretical understanding behind this is that when a worker goes on strike, he does not damage existing wealth. He merely refuses to play his role in the creation of future wealth, in which he also has rights through the contract of employment. If the contract is not being properly enforced he has a right to withdraw from his part in it. But today, almost every company files civil suits against union leaders and members, making them liable for losses during labour agitations, and praying for civil injunctions restraining workers from holding meetings, shouting slogans or otherwise gathering at the company gates. Janhit is fighting many such cases against Ultratech Cement, Ambuja (Holcim) Cement, ACC (Holcim) Cement etc. We are contemplating raising this general legal issue in higher constitutional courts.

  • SECL is demanding damages from adivasis!

Another instance of misuse of civil jurisdiction is a civil suit filed by the South Eastern Coalfields Ltd. against 6 adivasis for recovery of 36 lakhs with 9% interest. The defendants include Jangsay – a young adivasi leader of the Bharat Jan Andolan. The adivasis under BJA leadership had been protesting because, when their lands were compulsorily acquired for mining under the project Mahan -II, not only was the PESA Act (Panchayat Extension to Scheduled Areas Act) violated in that the Gram Sabha was not consulted before such acquisition, but the SECL submitted a forged Gram Sabha resolution to obtain clearances. About 5000 adivasis of nearby villages decided to march to the Mines Offices to protest on 26th December 2009 (Gram Ganrajya Divas – the day the PESA Act was notified.). The SECL, which has illegally begun mining and destroyed the livelihoods and environment of the adivasi villagers that are probably not measurable in monetary terms, is suing them for the loss of production on that day! Needless to say the villages are gradually organizing to see that the future expansion under Mahan III and Mahan IV cannot be carried out without compliance with PESA. Janhit is helping them file counter cases on SECL.

  • How charges under Section 124A were framed on Ruchi Verma

For nearly 2 years after she, her trade unionist husband and infant son were arrested, Ruchi Verma @ Sunita had not been given a copy of the seditious documents on the basis of which she was charged under Section 124A. It was after a long legal battle that these could be obtained. To our surprise most of the ostensibly seized documents were absolutely legal ranging from copies of CDs on Nandigram or an award winning film Azadi, to legal leftist literature and none of them were countersigned by either the seizure witnesses or Ruchi’s husband Bhola Bagh in whose presence the search is supposed to have taken place. The sole illegal literature was a magazine “Chingari†of the PWG group dated several years earlier. Several sheets bearing various visibly different hand writings are also part of the evidence. Most of the content is regarding working class struggles. A large number of pamphlets of the Chhattisgarh Mukti Morcha, a popular working class organization in Bhilai, which are distributed publicly on the streets are also items on the seizure list. Apart from the Chingari magazine, which seems evidently planted, the only other evidence against Ruchi Verma was a sentence on an A4 size paper written in Bhola Bagh’s hand saying “Sunita ka kya karna chahiye†. She has been refused bail by the High Court, though she was not even present during the seizure. Evidently she is being punished for being married to a “member of a banned organisation†. It appears that Bhola Bagh had a number of cases related to trade union activities pending against him when he was working in Ultratech Cement. He married Ruchi Verma in an intercaste marriage which was not looked favourably on, and therefore he left. He had been working in the Bhilai Steel Plant as a contract worker under a false name and license. He has been accused of harbouring a Naxalite woman for 15 days, a fact in support of which there is absolutely nothing in the chargesheet except a letter of the SP Sarguja to the SP Durg. That is the sum and substance of an allegation which could lead to a sentence of life imprisonment. Indeed – we need to free all the Binayak Sens.

  • Dainik Bhaskar – the power of the media!

On 28th February 2011, thousands of men and women thronged the site of the public hearing to protest against the captive coal mines for the DB Power Plant. One by one they would line up in front of the mike to address the officers and company managers sitting inside a cage like structure as hundreds of police looked on. Efforts of hired goons of the company to distribute “samarthan patras†failed completely. These are events that the people of Chhattisgarh are quite used to and even after vociferous protests environment clearances are still granted. But the legal issue on which Janhit is challenging the legality of this public hearing is a peculiar one. About a month before the hearing, a Senior Vice President of DB Power executed an affidavit that no mining would be carried out within the Dharamjaigarh Nagar Panchayat where about 47% of the coal bearing land of the project is situated. Then, a day before the hearing, all the prominent leaders in the Nagar Panchayat were summoned by a letter of the district administration to a meeting. There, in the presence of the Collector, SP, local MP etc this assurance was reiterated by the DB Power top management and considerable pressure was brought to bear on them. The assurance was given wide coverage in the Dainik Bhaskar which has the largest readership in the state. But there was no modification in the project proposal whatsoever, nor was there any fresh EIA report (Environment Impact Assesment Report) prepared. Thus when the public hearing was carried out, the people at large were subject to deliberate misrepresentation and fraud with the connivance of the state authorities. The legal issue that has come up is that, since public hearing is only one of the steps in the process of grant of environmental clearance, and clearance has not yet been granted, has a cause of action arisen yet? And of course, if clearance is granted, then the appropriate forum would be the National Green Tribunal, Delhi! There are Division Bench judgments in Tamil Nadu which say ….yes, a cause of action has arise because the public hearing is a important and independent step crystalising precious rights of the people, but this matter still needs to settled for Chhattisgarh.

  • Criminalising dissent – the case of Sukhranjan Usendi

It is not only the “naxali samarthaks†that the State harasses in Chhattisgarh, even the “naxali peedit†are not spared. Sukhranjan Usendi is a young adivasi CPM karyakarta and he fought Lok Sabha elections in 2004, coming 3rd after Congress and BJP, with a few thousand votes. He is a well to do person with about 45 acres of land and in 2003 Naxalites had looted his home taking away 3 trucks full of rice and household belongings. He has not returned to his village since. Sukhranjan was staying in a rundown government quarter in Pakhanjur on the verbal assurance of the then Collector and SP. A case carried out for 3 years for him to get an unencumbered plot land in Pakhanjur (as per the rehabilitation scheme for the naxal-affected) resulted in closure because now Pakhanjur is now a Nagar Panchayat. But Sukhranjan has also earned the wrath of the administration by organizing repeated agitations for health facilities, for teachers in the local school etc. So his house has been sealed, and when he filed a writ petition, adding insult to injury, a recovery notice of Rs. 87,000 for illegal occupancy was foisted. His criminal antecedents –as glorious as Bhagwati Sahu’s – were being waved around in court. “My lord†said the Additional Advocate General, in a highly dramatic tone, “he belongs to the Communist Party of India (sic)†Fortunately, for Sukhranjan, in this particular Court, the Judge presiding retorted… “Is that a banned organization, Mr Murthy?â€

  • Singhdev Yojana and adivasis of Ambikapur – neither here nor there

The State is on a demolition spree in Village Gangapur, right next to the Ambikapur town, in the Scheduled area of district Sarguja. Despite repeated resolutions of the Gram Sabha, the Tehsildar arrived with a posse of police personnel and demolished the houses of a dozen Oraon families, handing them a 7 day show cause notice after the demolition had been carried out! The demolition is ostensibly been carried out for the Tribal Welfare Department! But that is not all. In 1968-69, a scheme called the “Singhdev Yojana†had been initiated in Sarguja (the erstwhile Rajas of Sarguja were of the Singhdev family, and even today they are the MLAs of the area). In a sense this was a prophetic predecessor of the Forest Rights Act since it entailed denotifying forest lands which had been occupied and cultivated by adivasis for generations, converting them to Revenue land and fixing a Land Revenue on them in preparation for grant of pattas. But, as often happens with government schemes, the pattas never came. So for 40-45 years the adivasis, whose successors/ heirs had their houses demolished recently as “encroachers†, had been paying Land Revenue! The greatest irony is that today Vijay Kujur, Lalsu Kujur, Butul Xalxo and others who have suffered cannot even apply under the Forest Rights Act, since the land is no longer forest land. So they are neither here nor there…the historic injustice, referred to in the Preamble of the Forest Rights Act, continues in a different form. The villagers of Gangapur apprehend that the “tod phod†has some vested interest behind it, and it must be a way to hand over such land, now made prime by proximity to Ambikapur town, eventually to private persons.

These are only a few of the cases that Janhit is taking up…..With your support, we can do much more!

On behalf of the Janhit (Chhattisgarh) Team

Sudha Bharadwaj.

You can contact us at
- Janhit People’s Legal Resource Centre
- Behind Nida Chicken Corner, Ring Road No. 2,
- Maharana Pratap Chowk, Bilaspur,
- Chhattisgarh.