Three incidents
On 9th March 2008, a tribal called Deu Atram died inside the premises of Tadgaon police station in district Gadchiroli. The newspapers reported that the death was in suspicious conditions and his family members had alleged foul play by the police. The reports also noted the version of the police that Deu Atram and another tribal person had surrendered with weapons and uniform on 21st February 2008 before the police at Tadgaon. The S.P. was on record saying that although the death had occurred in the Tadgaon police station premises, it was not a case of death in police custody because Deu Atram were not arrested. They had surrendered and were with the police for interrogation.
Between 17th and 19th March 2008 naxalites killed three persons in Gadchiroli district who had surrendered.
On 29th March 2008 two surrendered naxalites who had subsequently been employed as police ‘guides’ decamped with two AK-47 and seven magazines from Deori police station in Gondia district.
These incidents force us to consider what ‘naxalite surrender’ really entails, and how it is carried out under the provisions in the Maharashtra surrender policy.
The Gist of Maharashtra Surrender Policy
The government of Maharashtra issued a circular titled ‘Surrender Scheme for Naxalites’ dated 29th August, 2005. The stated objective of the scheme was to give a way out to the local people who had joined the Naxalite movement and to stop recruitment into Naxalite groups, to motivate surrendered Naxalites to live a life as law-abiding citizen and finally to ensure that nobody was taking advantage of the financial benefits of the scheme by first joining the movement and then surrendering. The surrender scheme offers the following to the surrendered Naxalites – (a) cash reward and rehabilitation (b) blanket amnesty including for those in judicial custody (c) to consider withdrawal of prosecution under section 321 of the Cr.P.C.
While hard-core Naxalites from Maharashtra, Andhra Pradesh and Chhatisgarh are eligible for the scheme, Naxalite sympathizers or informers are not. Those who divulge relevant information regarding their hideouts, training camps, weapons and ammunition, area of operation, modus operandi, etc are eligible for the blanket amnesty. The eligibility is to be fixed by the S.P. The surrendered naxalite, on their part, have to take a public oath that they would not further indulge in anti-national activities.
The cash rewards range from Rs. 5,000 to Rs. 10 Lakhs depending upon the rank of the surrendered person within the movement and other considerations like whether they are surrendering in a group, whether with weapons, type of weapons etc. They are paid separately for any weapon in working condition and ammunition that they bring along on market rates. The cash rewards are according to rank of the surrendered person within the Naxalite movement which is determined by the SP and are meant to be paid within a month of surrender.
If a surrendered person asks for police protection of the ground that his/her life is in danger from the Naxalites, such police protection shall be granted by the Special Inspector General of Police. Similarly, if he/she asks for a change in residence, this shall also be considered.
The rehabilitation of the surrendered persons was to be done within 3 months of surrender. The rehabilitation package consists of house or homestead and financial support for building the house, scholarship for the children, self employment through existing government schemes.
The withdrawal of prosecution is through the recommendation of a committee consisting of District Magistrate (chairperson). District Public Prosecutor and District Superintendent of Police.
Responsibilities of enforcement agencies
As per the policy, a Naxalite can surrender before the district magistrate, the superintendent of police, the sub-divisional magistrate, the sub-divisional police officer, police station in - charge or any other official designated by the state government. The officers other than the police shall hand over the person to the police for further action. A district level approval committee consisting of the district magistrate, superintendent of police and assistant commissioner of S.I.D (state intelligence department) shall finally decide on whether the person has surrendered and approve the surrender. The police shall keep a strict watch on the surrendered naxalites for a year. The district collector shall be responsible for rehabilitation of the naxalites through various government schemes.
Observations
1. The first stage of surrender is when a person comes to the police (or another official and is thereafter handed over to the police) and says that he wants to surrender. Here a mere entry is noted in the station diary and then the person is produced before the Sub-Divisional Police Officer and the Superintendent of Police for interrogation. The entire procedure of surrender is a departure from the normal procedure as envisaged in the Criminal Procedure Code where the statement of confession is recorded by a judicial magistrate who confirms that the person making the confession is doing so voluntarily. Naxalite surrenders have come under a lot of controversy partly because these are done before the police and there is no independent, impartial third party to ensure that there is no threat or inducement to bring about surrenders, and that there is no violence during the extraction of information.
2. The second stage is that of interrogation by the police, which can go on for one or two months. During this time the person is either in the police station or attends police station to divulge information. In Gadchiroli and Gondia the police have allowed persons who have come to surrender to live in the premises of the police stations partly to ensure the security of these persons who fear reprisal and partly because they would like to keep persons within their reach for interrogation. Although technically the police claim that the persons are not in custody and have the freedom to move anywhere and meet people, yet in reality one can presume that their movements are restricted by fear of the naxalites as well as the police.
3. Whether the person staying in the police station for security or for interrogation before being produced before the approval committee is in custody or not is a debatable issue. Yet the fact remains that as long as he is in the premises, the police is responsible for what happens to him. In case of any allegations the onus shall be on the police to prove their bonafides, especially given that Supreme and High Courts as well as Human Rights Commissions have taken an extremely serious view of custodial torture and deaths.
4. The legal status of the person from the moment he comes for surrender and till the moment he is formally declared as surrendered naxalite by the approval committee is totally unclear. The police claim that since he is not arrested and not in custody they are not expected to follow the usual norms like informing his family or well-wishers, taking him for medical examination. This, in effect means that the person who has come to surrender voluntarily has far lesser rights than an arrested accused.
5. An arrested person is produced before the magistrate within 24 hours, but in the case where persons come for surrender they may admittedly be kept for months for interrogation or security giving rise to peculiar situations. Deu Atram was already with the police for 17 days when he died, and subsequently he did not get any cash reward or rehabilitation or compensation. This can be construed to be a violation of the constitutional rights of a person.
6. There are other provisions in the circular which are not being followed viz. (a) The Special I.G has not taken any special steps to provide protection to the surrendered naxalites. (b) the government has not allocated a single paisa as against the promised Rs. 2 Crores to be spent through the revenue commissioner, Nagpur Division for rehabilitation. (c) Surrendered naxalites are not kept under police surveillance for a year, as can be seen from the free access that surrendered naxalites had into the Deori police station even to extent of having access to arms and ammunition.
Need for Guidelines
One can deduce that inspite of the laudable objectives the present surrender policy has certain grey areas. It is true that the surrender policy should be flexible enough to give the police and administration the scope to function with a certain amount of freedom, yet clear and carefully framed guidelines can help to protect the rights of citizens, and convince the public about the bonafides of police action instead of creating doubts in their minds. The following may be considered while framing such guidelines -
1. The judicial magistrate should record the statement of the person who wants to surrender and verify that he is doing so voluntarily.
2. The legal status of the person who comes forward to surrender should be clarified from the day that he comes forward to the day that the approval committee formally declares him to be a surrendered naxalite.
3. The approval committee should include the judicial magistrate or a member nominated by the State Human Rights Commission.
4. Since a number of surrendered naxalites are women, their needs in terms of protection and rehabilitation should be considered separately.
5. If the person requests to stay in the police premise for protection or is asked to stay for interrogation then -
a. The judicial magistrate should be informed by the police.
b. Medical examination of the person should be mandatory as soon as he comes for surrender.
c. Informing the family or well-wisher or the Gram Panchayat should be mandatory.
d. The Executive Magistrate or Sub Divisional Magistrate or Judicial Magistrate must personally visit the police station where such persons are staying to ensure their well being.
e. Beyond fifteen days the person should be physically produced before the judicial magistrate or approval committee.
6. If a person dies after coming forward to surrender and before he is presented before the approval committee, his family should be considered for cash reward / rehabilitation.
7. The cash rewards should be given in the presence of Sarpanch or other elected representatives and members of the public.
8. Provisions of the policy like rehabilitation package within three months, police protection and option of changing residence should be followed.
The present surrender policy should be reconsidered to remove the present anomalies and also to present a framework for other states in similar situations.
On 9th March 2008, a tribal called Deu Atram died inside the premises of Tadgaon police station in district Gadchiroli. The newspapers reported that the death was in suspicious conditions and his family members had alleged foul play by the police. The reports also noted the version of the police that Deu Atram and another tribal person had surrendered with weapons and uniform on 21st February 2008 before the police at Tadgaon. The S.P. was on record saying that although the death had occurred in the Tadgaon police station premises, it was not a case of death in police custody because Deu Atram were not arrested. They had surrendered and were with the police for interrogation.
Between 17th and 19th March 2008 naxalites killed three persons in Gadchiroli district who had surrendered.
On 29th March 2008 two surrendered naxalites who had subsequently been employed as police ‘guides’ decamped with two AK-47 and seven magazines from Deori police station in Gondia district.
These incidents force us to consider what ‘naxalite surrender’ really entails, and how it is carried out under the provisions in the Maharashtra surrender policy.
The Gist of Maharashtra Surrender Policy
The government of Maharashtra issued a circular titled ‘Surrender Scheme for Naxalites’ dated 29th August, 2005. The stated objective of the scheme was to give a way out to the local people who had joined the Naxalite movement and to stop recruitment into Naxalite groups, to motivate surrendered Naxalites to live a life as law-abiding citizen and finally to ensure that nobody was taking advantage of the financial benefits of the scheme by first joining the movement and then surrendering. The surrender scheme offers the following to the surrendered Naxalites – (a) cash reward and rehabilitation (b) blanket amnesty including for those in judicial custody (c) to consider withdrawal of prosecution under section 321 of the Cr.P.C.
While hard-core Naxalites from Maharashtra, Andhra Pradesh and Chhatisgarh are eligible for the scheme, Naxalite sympathizers or informers are not. Those who divulge relevant information regarding their hideouts, training camps, weapons and ammunition, area of operation, modus operandi, etc are eligible for the blanket amnesty. The eligibility is to be fixed by the S.P. The surrendered naxalite, on their part, have to take a public oath that they would not further indulge in anti-national activities.
The cash rewards range from Rs. 5,000 to Rs. 10 Lakhs depending upon the rank of the surrendered person within the movement and other considerations like whether they are surrendering in a group, whether with weapons, type of weapons etc. They are paid separately for any weapon in working condition and ammunition that they bring along on market rates. The cash rewards are according to rank of the surrendered person within the Naxalite movement which is determined by the SP and are meant to be paid within a month of surrender.
If a surrendered person asks for police protection of the ground that his/her life is in danger from the Naxalites, such police protection shall be granted by the Special Inspector General of Police. Similarly, if he/she asks for a change in residence, this shall also be considered.
The rehabilitation of the surrendered persons was to be done within 3 months of surrender. The rehabilitation package consists of house or homestead and financial support for building the house, scholarship for the children, self employment through existing government schemes.
The withdrawal of prosecution is through the recommendation of a committee consisting of District Magistrate (chairperson). District Public Prosecutor and District Superintendent of Police.
Responsibilities of enforcement agencies
As per the policy, a Naxalite can surrender before the district magistrate, the superintendent of police, the sub-divisional magistrate, the sub-divisional police officer, police station in - charge or any other official designated by the state government. The officers other than the police shall hand over the person to the police for further action. A district level approval committee consisting of the district magistrate, superintendent of police and assistant commissioner of S.I.D (state intelligence department) shall finally decide on whether the person has surrendered and approve the surrender. The police shall keep a strict watch on the surrendered naxalites for a year. The district collector shall be responsible for rehabilitation of the naxalites through various government schemes.
Observations
1. The first stage of surrender is when a person comes to the police (or another official and is thereafter handed over to the police) and says that he wants to surrender. Here a mere entry is noted in the station diary and then the person is produced before the Sub-Divisional Police Officer and the Superintendent of Police for interrogation. The entire procedure of surrender is a departure from the normal procedure as envisaged in the Criminal Procedure Code where the statement of confession is recorded by a judicial magistrate who confirms that the person making the confession is doing so voluntarily. Naxalite surrenders have come under a lot of controversy partly because these are done before the police and there is no independent, impartial third party to ensure that there is no threat or inducement to bring about surrenders, and that there is no violence during the extraction of information.
2. The second stage is that of interrogation by the police, which can go on for one or two months. During this time the person is either in the police station or attends police station to divulge information. In Gadchiroli and Gondia the police have allowed persons who have come to surrender to live in the premises of the police stations partly to ensure the security of these persons who fear reprisal and partly because they would like to keep persons within their reach for interrogation. Although technically the police claim that the persons are not in custody and have the freedom to move anywhere and meet people, yet in reality one can presume that their movements are restricted by fear of the naxalites as well as the police.
3. Whether the person staying in the police station for security or for interrogation before being produced before the approval committee is in custody or not is a debatable issue. Yet the fact remains that as long as he is in the premises, the police is responsible for what happens to him. In case of any allegations the onus shall be on the police to prove their bonafides, especially given that Supreme and High Courts as well as Human Rights Commissions have taken an extremely serious view of custodial torture and deaths.
4. The legal status of the person from the moment he comes for surrender and till the moment he is formally declared as surrendered naxalite by the approval committee is totally unclear. The police claim that since he is not arrested and not in custody they are not expected to follow the usual norms like informing his family or well-wishers, taking him for medical examination. This, in effect means that the person who has come to surrender voluntarily has far lesser rights than an arrested accused.
5. An arrested person is produced before the magistrate within 24 hours, but in the case where persons come for surrender they may admittedly be kept for months for interrogation or security giving rise to peculiar situations. Deu Atram was already with the police for 17 days when he died, and subsequently he did not get any cash reward or rehabilitation or compensation. This can be construed to be a violation of the constitutional rights of a person.
6. There are other provisions in the circular which are not being followed viz. (a) The Special I.G has not taken any special steps to provide protection to the surrendered naxalites. (b) the government has not allocated a single paisa as against the promised Rs. 2 Crores to be spent through the revenue commissioner, Nagpur Division for rehabilitation. (c) Surrendered naxalites are not kept under police surveillance for a year, as can be seen from the free access that surrendered naxalites had into the Deori police station even to extent of having access to arms and ammunition.
Need for Guidelines
One can deduce that inspite of the laudable objectives the present surrender policy has certain grey areas. It is true that the surrender policy should be flexible enough to give the police and administration the scope to function with a certain amount of freedom, yet clear and carefully framed guidelines can help to protect the rights of citizens, and convince the public about the bonafides of police action instead of creating doubts in their minds. The following may be considered while framing such guidelines -
1. The judicial magistrate should record the statement of the person who wants to surrender and verify that he is doing so voluntarily.
2. The legal status of the person who comes forward to surrender should be clarified from the day that he comes forward to the day that the approval committee formally declares him to be a surrendered naxalite.
3. The approval committee should include the judicial magistrate or a member nominated by the State Human Rights Commission.
4. Since a number of surrendered naxalites are women, their needs in terms of protection and rehabilitation should be considered separately.
5. If the person requests to stay in the police premise for protection or is asked to stay for interrogation then -
a. The judicial magistrate should be informed by the police.
b. Medical examination of the person should be mandatory as soon as he comes for surrender.
c. Informing the family or well-wisher or the Gram Panchayat should be mandatory.
d. The Executive Magistrate or Sub Divisional Magistrate or Judicial Magistrate must personally visit the police station where such persons are staying to ensure their well being.
e. Beyond fifteen days the person should be physically produced before the judicial magistrate or approval committee.
6. If a person dies after coming forward to surrender and before he is presented before the approval committee, his family should be considered for cash reward / rehabilitation.
7. The cash rewards should be given in the presence of Sarpanch or other elected representatives and members of the public.
8. Provisions of the policy like rehabilitation package within three months, police protection and option of changing residence should be followed.
The present surrender policy should be reconsidered to remove the present anomalies and also to present a framework for other states in similar situations.
Paromita
the same essay appeared in
'The Hitavada' Nagpur edition 6th April 2008
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