SOUTH ASIA INTELLIGENCE REVIEW
Weekly Assessments & Briefings
Volume 1, No. 23, December 23, 2002

INDIA

Rare Justice
Ajai Sahni
Editor, SAIR; Executive Director, Institute for Conflict Management

The death penalty, in Indian jurisprudence, is awarded only in cases that are deemed to be the 'rarest of the rare'. On December 18, 2002, a special court at Delhi declared that three of the conspirators in the attack on India's Parliament on December 13, 2001, fell into this exclusive category, and sentenced Mohammad Afzal, Shaukat Hussain Guru and S.A.R. Geelani to pay the ultimate penalty for, among other charges, 'waging war against the state'. The fourth accused, Guru's wife, Afsan Guru, was sentenced to five years rigorous imprisonment for concealment of 'prior knowledge' of the planned terrorist act. The conviction is seen as a major breakthrough and a test case on India's 'controversial' counter-terrorism legislation, the Prevention of Terrorism Act, 2002 (POTA).

The judgement itself falls into the category of the 'rarest of the rare' on another count: it is very seldom that India's sluggish justice system succeeds in bringing terrorists to book - and the conviction of the accused in the Parliament Attack case in just over a year after the event is extraordinary in a system in which criminal trials often drag on for decades at end. It is useful, in this context, to take a quick look at the judicial record in Jammu & Kashmir: over 33,693 persons have been killed in the conflict in the State (since 1988 and till December 22, 2002); this includes 12,203 civilians and 4,575 security forces (SF) personnel. For these and many thousands of other crimes, precisely 13 convictions have been secured over more than thirteen years of terrorism in the State - eight of them on relatively minor charges, such as illegal border crossing or illegal possession of arms and explosives, and only five, in a single case, involve an act of terrorism resulting in death. Not a single sentence of death has been awarded in any case of terrorist violence in Jammu & Kashmir since terrorism took root in the State in 1989.

These astonishing numbers alone cannot convey the enormity and the horror of the situation that prevails on the ground. To say that 14 civilians were killed by terrorists in the last week, for instance, does not communicate - and indeed conceals - the fact that this number includes three young children who were murdered in cold blood in the presence of their father (who was also injured); that it also includes four unfortunate women who were dragged out of their homes and killed - two shot dead at point blank range, and the other two brutally beheaded by their fanatical tormentors, either to avenge their alleged connection with 'kafirs', or for their failure to wear the veil as decreed by the jehadis.

Harsh as it may sound, these victims of terror were, in some perverse sense, fortunate that death came swiftly. Others have not been that lucky. Among details available with the Institute for Conflict Management, of over 667 atrocities committed by terrorists against women and children, are many utterly gruesome accounts of gang rapes, torture and mutilation over days at end, culminating in a death that would have come as a relief to the victims. The headline of a national daily spoke of the December 13 attack on Parliament having been 'avenged' by the conviction of the four accused. It is not clear whether any significant proportion of these thousands of other outrages will ever be similarly 'avenged' by the judicial process.

The decision in the Parliament attack case demonstrates that the Indian justice system can respond when it chooses to. Earlier, in the case of the assassination of then Prime Minister Indira Gandhi, a conviction had been secured within fifteen months. The case of Rajiv Gandhi's assassination was more complicated, and judgement came after over five years in Court - but the process was more or less inexorable. There have been other cases - usually in areas not deeply afflicted by terrorism - where the investigative and judicial process has yielded just punishment against perpetrators of terrorist excesses. By and large, however, what is witnessed has been described by K.P.S. Gill, who led the successful campaign against terrorism in the State of Punjab, as a "complete abdication, indeed collapse, of judicial accountability in situations of persistent mass violence and terrorism."

It is useful, in this context, to note that, even where prosecutions were launched against terrorists under the Terrorist and Disruptive Activities (Prevention) Act (TADA) - the much-maligned precursor of the present POTA, which was allowed to lapse in 1995 - the conviction rate was under two percent. By contrast, the conviction rate under a legislation with comparable provisions, though it is primarily directed against organised crime and not terrorism, - the Maharashtra Control of Organised Crime Act (MCOCA) - has been as high as 78 per cent.

The 'deterrent' impact of counter-terrorism legislation cannot be secured by judgements in an occasional high profile case, where thousands of daily excesses and brutalities go entirely unpunished. Unfortunately, as Gill notes again, "The present judicial system is simply incapable of securing the levels of efficiency and delivering the quality of justice that are required to counter and contain the enormous threats that currently exist to national security…"

Nor, indeed, has the attack on Parliament been quite 'avenged' by the present judgement. The five primary perpetrators of the attack had been killed during the operation itself. The four convicted in the case were arraigned for their role in facilitating the strike and providing a safe haven to the fidayeen (suicide) squad. The primary conspirators, however, remain entirely outside the pale of law. The chargesheet mentions Pakistan's Inter Services Intelligence (ISI) as the chief instigator of the plot, which was executed by cadres of the Pakistan-based Jaish-e-Mohammed (JeM) and Lashkar-e-Toiba (LeT). The chargesheet indicts JeM chief, Mohammad Masood Azhar as the 'mastermind' behind the plot, and two other JeM 'commanders', Ghazi Baba and Tariq Ahmad are said to have been responsible for its execution. Ghazi Baba and Tariq Ahmad have been declared proclaimed offenders. Masood Azhar is on India's list of 'twenty most wanted' that had been handed over to Pakistan in the wake of the attack on Parliament. Azhar was recently released from 'house arrest' by a Pakistani court. There is little prospect of any of the three being brought to justice in the foreseeable future.

The special court's judgement is, moreover, not the end of the story even as far as the four convicted are concerned. There is certain to be an appeal in which a wide range of procedural and evidentiary issues will be raised, and the outcome is entirely unpredictable. It is useful to note that, in the Rajiv Gandhi assassination case, 26 persons had been sentenced to death by the trial Court. Eventually, however, 19 of these were acquitted by the Supreme Court, and another three had their sentences commuted to imprisonment for life.

"If judicial action is to have any credibility among the people, and any deterrent impact," Gill notes, "especially on the hardened cadres of terrorist and organised crime groupings, the link between crime and punishment must be swift and inexorable." It is clear that this is far from the case in the Indian situation, and immensely more so in areas seriously afflicted by the scourge of terrorism.

INDIA

Jharkhand: Leftist Carnage
Sanjay K Jha
Research Associate, Institute for Conflict Management

In one of the most daring attacks on security forces (SFs) in the Indian State of Jharkhand, Left-Wing extremists - called Naxalites - of the Maoist Communist Centre (MCC) ambushed a police convoy killing 13 police personnel and injuring 15 others, according to official sources, in the dense forests at Bitkilsoya, under the Manoharpur police station area, West Singhbhum district, on December 20, 2002. The Naxalites also set ablaze 11 vehicles in the convoy and looted arms and ammunition. Some 70 policemen were in the cavalcade that was attacked.

The attack came at a time when the State government was claiming to have achieved remarkable success in its anti-Naxalite operations. A booklet, 'Achievements in 22 Months', brought out by the State government in November 2002, on the occasion of the second anniversary of the creation of the State of Jharkhand, claimed that police morale was very high as it had been 'successful in containing extremism'. The government claimed further that the continuous pressure on the extremists had 'lowered their morale to an all time low'.

Immediately after the creation of Jharkhand, the National Democratic Alliance (NDA) government led by Bharatiya Janata Party's Babulal Marandi, had launched vigorous anti-Naxalite operations. Major components of these operations included the greater use of central paramilitary forces, joint operation with neighbouring States, largescale arrests of Naxalites and their sympathizers under the Prevention of Terrorism Act (POTA), and a rehabilitation policy to lure Naxalites to join mainstream. A careful assessment of the activities of the Naxalite groups in the State over the last two years, however, demonstrates that these groups are not only expanding their influence, but are also working to achieve their larger goal of unification of Maoist movements in the country and across South Asia. Such an analysis also demonstrates that the State government's anti-Naxalite drive has failed to yield desired results as it has not taken into account the lack of preparedness in the police force to counter the Naxalites.

The Naxalite movement originated in the late 1960s at Naxalbari, a small township in the Darjeeling district of West Bengal. Inspired by the Chinese leader Mao Tse Tung's theory of organized peasant insurrection, the Naxalites reject parliamentary democracy and believe in capturing power through protracted armed struggle based on guerrilla warfare. The Naxalbari movement has had a continuous impact in different parts of the country, with several groups embracing the Maoist ideology of armed struggle in many States.

At present, Jharkhand lies squarely at the center of the swathe of territories stretching from Bihar (indeed, from Nepal further North), through Orissa, Chattisgarh, parts of Madhya Pradesh and Maharashtra, to Andhra Pradesh, that are worst affected by Left Wing extremist violence. The prominent Naxalite groups currently active in the State are the MCC; the Communist Party of India, Marxist-Leninist, (People's War), [CPI-ML (PW)], popularly known as the People's War Group (PWG); the CPI-ML (Liberation) - though this is a mainstream political party it maintains armed squads in some districts; CPI-ML (Provisional Central Committee); CPI-ML (Red Flag); CPI-ML (Shanti Pal Group); CPI-ML (New Democracy); and the CPI-ML (Unity Initiative) are active in Jharkhand. Of these, the MCC and the PWG are the most formidable forces. An estimated 15 out of the 22 districts in the State are Naxalite affected, of which the worst off are: Chatra, Palamu, Garhwa, Giridih, Latehar, Gumla, Ranchi, Hazaribagh, Lohardaga and Bokaro. The Naxalites run virtual parallel governments in many areas of these districts, holding Jan Adalats (People's Courts) to settle both civil and criminal disputes, and imposing penalties that range from simple fines to mutilation and death.

According to data compiled by the Institute for Conflict Management, a total of 100 persons, including 27 civilians, 66 SF personnel and seven Naxalites have been killed in MCC and PWG related violence between January 2002 and December 22, 2002. The extreme vulnerability of the SFs in the State is apparent in these numbers, and is borne out by the intensity and frequency of attacks on SFs in the State. The current year has seen a number of landmine explosions that inflicted serious casualties on the SFs. Thus, on November 20, 2002, eight SF personnel were killed in Latehar district. On October 9, seven police personnel were killed in Palamu district. On June 11, a Deputy Superintendent of Police (DSP) was killed, again in Palamu district. On May 7, during an economic blockade called by the MCC and the PWG, at least 15 police personnel were killed in a landmine blast in Kodarma district. On January 27, 2002, nine SF personnel were killed in Gumla district. In the year 2001, 13 police personnel were killed in an attack on the police station in Topchanchi, Dhanbad district, on October 31. Four police personnel, including a Deputy Superintendent of Police (DSP), were killed and four others seriously injured in a landmine blast in Garhwa district, on October 4, 2001. 12 personnel of the Central Reserve Police Force (CRPF) were killed in Hazaribagh district on September 23. Two senior police officials, Deputy Inspector General of Police (DIG) Hazaribagh and Superintendent of Police (SP) Chatra, were among seven police personnel seriously injured in a landmine blast in Chatra district, on May 6, 2001.

Jharkhand, with a dense forest cover over large parts of the State, offers favorable terrain for the Naxalites to operate and build their bases. Moreover, the poor performance of institutions of civil governance in remote and tribal areas gives the Naxalites the political space to capitalize on popular discontent. Before the creation of Jharkhand, the feeling was that the region was backward and neglected because the political and bureaucratic establishment, dominated by officials from the 'non-tribal' areas of Bihar, did not care for the tribals. It was widely believed that a new government that was more representative of tribal interests would be in a better position to address their legitimate grievances. The present NDA government has, however, failed to revitalize the institutions of civil governance in Naxalite affected areas. There is, moreover, a collusive arrangement between a section of political leaders, businessmen and bureaucrats that stems the flow of developmental funds and activities in these areas. Indeed, it seems that the creation of Jharkhand has helped the MCC and PWG consolidate their roots in the region, as the potential for extortion from contractors, traders and industrial units is greater in the new State. According to one estimate, the Naxalites collect at least one billion rupees a year from government offices, contractors, businessmen and industrialists.

There is, moreover, an increasing measure of understanding and coordination between the MCC and the PWG in the State, which has deepened the challenge for the government. The two groups had, in earlier years, inclined towards bloody internecine confrontations, but have been working together for some time now. In November 2002, a joint Statement issued by the two groups at Patna (Bihar) stated that the indiscriminate use of the POTA against the activists and sympathizers of the Naxalite groups by the Jharkhand government had 'compelled them to iron out differences' and fight jointly against the State machinery. Earlier, both the groups had organized an 'economic blockade' in Jharkhand between May 6 and 8, 2002.

The MCC and the CPI-ML (Party Unity) - which merged with the PWG in 1998 - had long engaged in a bitter turf war in several districts of Bihar and Jharkhand. In the last five years, an estimated 300 persons from both the organisations have reportedly been killed in internecine clashes. The cementing over of differences between the two most powerful Naxalite groups in India is part of a larger strategy aimed at unification of Maoist movements across South Asia. Available evidence suggests that the Naxalites, in collaboration with Maoist insurgents in Nepal, are trying to create a 'compact revolutionary zone', and plan to create conditions that would allow them to declare the stretch of territory running from Nepal to Andhra Pradesh as a 'liberated zone'.

The State response to this growing Left Wing has relied heavily on police operations to neutralize the armed groups, but this is clearly not working, particularly since systematic and lethal attacks on SF personnel have undermined morale and preparedness, especially in the ranks. The SF operations suffer due to lack of adequate and appropriate equipment - including basics such as automatic weapons, landmine detectors, transport and communications; a proper intelligence network at the grassroots level; and better protection to police officers and personnel in the Naxalite affected areas. After the lethal December 20 attack on the police convoy at Bitkilsoya, angry survivors reportedly blamed the malfunctioning of their SLRs for the high casualty figures as much as they did the attacking MCC cadres. Regrettably, plans to modernize the State police force and a proposal to network all 369 police stations in the State, remain 'pending'.

The State government had also announced a 'rehabilitation policy' for Naxalites who were willing to give up arms and 'come overground'. Unfortunately, the response to the 'package' announced in April 2001, has been very poor. The government is now believed to be 'reviewing' its rehabilitation policy, clearly conceding its failure to lure the Naxalites back to the social mainstream.

The problem of Left Wing extremism is sustained largely by the failure of the administrative machinery at the grassroots level, and any effective policy to counter the increasing sway of the Naxalites will have to take into account the efficiency and effectiveness - or lack thereof - of institutions of civil governance and the developmental machinery of the State. Such a policy will also have to assess and neutralize the dynamics of the underground economy of extortion and terrorism and the parallel structures of 'governance' that the extremists have installed in their areas of influence.