28, Aug 2018 | CJP Team
Allahabad HC has today directed the SP Sonbhadra to produce Adivasi Human Rights Defenders, Sukalo and Kismatiya Gond in Court on September 7. The order was issued in the Habeas Corpus petition filed by CJP and the All India Union of Forest Working People (AIUFWP) on June 29. The illegal detention dates to June 8.
Sharing the gist of the arguments in court, advocate Farman Naqvi who appeared for CJP and AIUFWP said, “Firstly they never stated the reason for custody or under what charges these women were being held. Sukalo and Kismatiya’s names were not even mentioned in the FIR which is why they remained untraceable necessitating a Habeas Corpus Petition.” Advocate Naqvi also highlights the instances of how the UP Police made two different contradictory statements. “They made an oral submission in court on July 9 that both women had been taken into custody under section 151 for causing breach of peace, but later released. This submission was recorded by the court in the order sheet. However, in the last week of July they submitted that both women were indeed arrested on June 8 and are presently in custody! We highlighted this anomaly in their statement during our arguments in court today.”
CJP has been closely following how Adivasi women of Sonbhadra, UP, who are a part of a peaceful struggle for land rights, are being systematically bullied and harassed. Many of them have fake cases filed against them on false or trumped up charges. CJP stands with the AIUFWP in their demand for the immediate implementation of the Forest Rights Act, 2006. Support these brave women, who are determined to get their rights despite hailing from oppressed, vulnerable and marginalised communities, by donating here.
But the UP cops have continued to play dirty, just to ensure that these brave women stay behind bars. CJP and AIUFWP have filed a rejoinder to the Counter Affidavit filed by the Inspector of Police, Rupesh Kumar Singh of Muirpur Police station in the order passed on Habeas Corpus Petition (Petition no 3332/2018 filed by CJP) hearing on August 14, 2018. The rejoinder bats for their release while highlighting several serious flaws in the Counter Affidavit. Referring to several committee recommendations passed in the past, the rejoinder draws attention to the plight of Adivasis and their struggle for their rights and dignity, and the specific historical context of Sonbhadra and its Adivasis.
The rejoinder by the petitioners and the counter by the state may be read here.
There are several flaws in the affidavit filed by the UP Police. In many instances there is a manipulation of the truth, in some cases factual inaccuracies have been allowed to be a part of the affidavit. Other instances include using procedural and bureaucratic loopholes to cause delays and in a manner, derail justice. Sample the following:
Questions Raised on Identity of the Deponent
The deponent of the counter affidavit, Rupesh Kumar Singh, claims to be presently posted as Inspector at P.S. Muirpur, District-Sonbhadra. However, his UP Police identity card, filed in support of proof of his identity, shows his designation to be that of a Constable! The said Rupesh Kumar Singh cannot hold two designations at the same time. This itself is a reason to reject the counter affidavit because the same is not filed apparently by a genuine person. Moreover, in the counter affidavit, it is not mentioned that out of 4 respondents, on whose behalf, he has filed counter affidavit.
No Names in FIR at Time of Arrest
The rejoinder filed by CJP and AIUFWP highlighted the fact that the affidavit itself mentions that at the time of arrest, i.e. on June 8, 2018, the names of the petitioners, Sukalo and Kismatiya, were not mentioned in the FIR, and yet they were arrested.
The counter affidavit by the state (to the Habeas Corpus petition) makes several false and unsubstantiated claims. The state has submitted that the two petitioners, Sukalo and Kismatiya were arrested on the basis of alleged confession of Sukhdev Gond. Since this confession was made in custody, the rejoinder highlighted, this can’t be treated as reliable or tested information. It said, “Confession in police custody is not admissible and can be done by pressurizing the accused.” It emphasised the need for verification of the statement recorded under section 161.
It said that the counter affidavit is full of contradictions. Drawing attention to the oral statement of the counsel for the state, on July 9 during the hearing of Habeas Corpus petition, in which they alleged that Sukalo and Kismatiya were issued challans under section 151 and had been released, the rejoinder said that now the Inspector says that both of them were never issued challans. This stood in contradiction to the state’s own version of things as they happened. The rejoinder raised the question, “Why was such a loose and irresponsible statement made before the Hon’ble court without any legal verification of the where-about of the two women Petitioners?” demands the rejoinder.
The rejoinder highlights that the conflict is about the forest land and the dispute with the Forest Department. The village Lilasi, which is the village in question, was where land was being cultivated by the Adivasis until about eight years ago, when it was suddenly and forcefully usurped by the dominant sections of certain upper caste communities of the village. The Adivasis were already in an ongoing conflict over the issue.
The counter affidavit by the state makes a “blithe” and “casual” reference to Sukalo’s and Kismatiya’s Call Data Records (CDR) and says that it “is the only basis of their arrest”. Countering this, the rejoinder submitted, “The fact that someone was in telephonic conversation with someone, the fact that Petitioners No 1 and 2 are prominent leaders of the Adivasi community, the fact that they may have been offering reassurance and support to persons facing violent repression by the police; all these factors could be the reason for the phone calls. On what basis can the state in a counter in a Habeas Corpus case, use confessional statements and the mere mention of CDR records for incarcerating women leaders for over two months like this?” In fact, the rejoinder rightly highlighted that the state and its officers prevaricated for weeks leading to significant delays in the hearing affecting the Fundamental Rights to life, freedom and equality before the law, as granted by the Constitution.
Highlighting a big loophole in the claim by the Inspector that Vijendra Kumar, the Van Daroga, had filed a case 28/ 2018, the rejoinder submitted, “Should not the District Magistrate or SDM at this point have intervened to ascertain the facts as they are the Authorities empowered to do so, and responsible for the implementation of the FRA according to the Act of 2007? Instead of any such responsible intervention (and investigation) of the authorities required under the Act, the matter was left to police and forest department who are the vested interests identified by the 2007 law for their anti-Adivasi stances.”
The villagers of Lilasi had filed community forest rights claims, and hence “without the process of claims being completed the rights of forest people needs to be protected according to FRA”. So, the rejoinder submitted that the actions of the Van Daroga (forest department officials) were completely against the spirit of the FRA and in fact, were perpetuating historical injustices on the people.
The rejoinder ascertained that there was no “direct convincing evidence of Sukalo’s involvement in any so-called crime” and that all the supposed evidences by the witnesses was based on the evidence of telephonic conversation, which didn’t hold any ground.
Both Sukalo and Kismatiya’s names appeared in the Chargesheet only after they were arrested.
BD Sharma’s (29th) report had recorded that the district of Sonbhadra has recorded the highest number of land disputes since independence. Referring to other reports such as the Mangal Dev Visharad committee report, the rejoinder said that “Gram Sabha lands” are “transferred illegally to Forest Department” on many occasions. Again, as noted by Maheshwar Prasad Committee report, the Gram Sabha revenue lands were (wrongfully and erroneously) notified under section 20 as reserved forest. However, unfortunately, none of the recommendations provided by the committee were taken seriously by the Government, the rejoinder highlighted.
Brief background of the case
Adivasi human rights defenders Sukalo and Kismatiya Gond have been held captive for over two months! Their crime… to bravely demand rights to forest land… rights that have been guaranteed to them under the Forest Rights Act 2006. Kismatiya Gond (Secretary, Forest Rights Committee), Sukalo Gond (Treasurer of AIUFWP) and Sukhdev Gond were picked up in a clandestine manner from Chopan railway station by the Sonbhadra police on June 8, 2018. They were arrested just as they were returning after a meeting with the state forest minister, Dara Singh Chauhan and the Forest Secretary in Lucknow in which the minister had assured that he would look into the matter of previous police assaults on Lilasi villagers in connivance with the Forest Department. But not only were they picked up by the police in a clandestine manner, their names were also not mentioned in the FIR! CJP and AIUFWP had to move a Habeas Corpus petition before the Allahabad High Court.
The rejoinder has highlighted that all their documents were forcibly taken away from them after their arrest. The counter affidavit filed by the state has alleged that because Sukalo and Kismatiya were accompanying Sukhdev Gond, they were also involved in the crime. Calling such an assertion devoid of any “logic” the rejoinder asked for the basis of such an inference.
Following CJP’s and AIUFWP’s campaign for their release, recently, even political parties such as Congress and Samajwadi Party have raised their voices for their release on social media and other platforms, with Congress President Rahul Gandhi tweeting that he feels concerned about both the women and that the local Congress ministers should follow up on this.
On August 14, after much delay, a Counter Affidavit was filed by the Sonbhadra Police, on August 14, in which they alleged that both the women are ‘wanted’ in criminal cases, shockingly after two months of their illegal arrests.
Quoting from the book “Tribal Administration in India”, the rejoinder for the AIUFWP and CJP highlights how the “lands belonging to Adivasis, especially the Kol, Gond and Agaria Adivasis were illegally encroached upon by the Forest Department in both the Kaimur and Bundelkhand regions of Uttar Pradesh.”
Hence, that both Sukalo and Kismatiya were doing nothing more than carrying forward their legacy of fighting against exploitation and violence faced by the Adivasis.
Towards the end, it points to a very important fact about the context of the arrests, “That this case of illegal detention and arrest needs to be understood and seen in this context where in all these cases –regardless of the ideology of the government in power– a falsified ‘criminal history’ of the entire section of agitating and organising forest peoples and women en-masse is being is being constructed by the authorities, especially the Sonbhadra district police. That this is motivated by vested interests trying to deny them their rights, finally recognised under the FRA, 2007.”
In view of all this, the Sonbhadra police needs to be held accountable for the illegal detention and arrests of Sukalo and Kismatiya and should be released immediately. Moreover the DM and SDM of Sonbhadra district too, need to be held accountable regarding their duties as per the Forest Rights Act. Finally, that the State Forest Secretary and State Forest Minister should be called upon to make their stand clear on the “brazenly unfair arrests.”