Political Prisoners and Political Offences

Right from the colonial era, political prisoners have been treated differently within India and abroad

Dr. Sheikh Showkat Hussain
Publish Date: Dec 11 2012 12:00PM

International Law has always distinguished between offences committed out of personal motives & the offences committed in pursuance of collective political goals. This difference is manifest in humanitarian law where a prisoner of war is immune from any sort of trial for whatever he did in pursuance of fighting the war. The power in whose custody he remains can’t try him in a court of law though its own soldiers remain victims of actions of the prisoner done in pursuance of fighting the war. There have been trials for violation of humanitarian law by war crime tribunals established by international community after the World War II in the form of Nuremberg & Tokyo tribunals. These were not the trials for the acts done within the parameters of law of war but for its gross violations; same way we do have at present two war crime tribunals operating in former Yugoslavia & Rwanda. These tribunals too try those who indulged in gross violations of humanitarian law & not the actions genuinely associated with fighting of war, be it of international or non-international character. The reason for immunity to prisoners of war is simple; they, in the words of Rousseau, are enemies by accident. They fight because they are associated with two different political entities and in pursuance of collective goals. What holds true about prisoners of war holds true about those who are associated with different political ideologies and organizations. Whatever they do in furtherance of their ideology is not guided by personal motivations but by collective goals. Such offenders are not extradited to the countries where they are wanted for trials. This is a well established rule of customary international law and is adhered to by vast majority of nations since times immemorial. The issue still remains as to what is an offence of political nature and thus non-extraditable. Different countries follow different yardsticks to identify the acts of political nature. Some countries rely upon nature of the act. There are other countries which follow the criteria of incidence. An act even if ordinarily a crime if incidental to a political activity qualifies to be treated as an act of political nature for the purposes of non-extradition. There are countries that follow different criteria, they neither go by the nature of the act nor by the criteria of incidence. They proceed to ascertain motivation of the offender. If an act is done with a political motive of whatever nature it may be, whether incidental to a political mobilization or not, is not an issue for them. The only basis of non-extradition remains motive of a person. Acts done with political motives qualifies an offender for non-extradition. The acts done with personal motives remain extraditable irrespective of their nature.
These ideas of international law have started to creep into domestic jurisprudence and recent judgment of Kolkata High Court Gaur Narayan Chakraborty & Others v. State of West Bengal  (CRR 463 of 2012WithCRR 1312 of 2012WithCRR 4000 of 2011 on 8August2012) has put a seal of confirmation on this idea. The court has accepted plea of the petitioners to be treated as political prisoners and not normal criminals. The court passed orders to this effect on 8 August 2o12. The case arose out of three revision petitions filed by members of a Naxalite/Maoist organization which was banned under the Unlawful Activities Act.  They were allegedly “engaged in terrorist activities” and instigated people at large to take up arms to destabilize the prevailing order. The petitioners Gaur Narayan Chakarborty, V. Venketeswara Reddy, Sambhu Soren, Sagun Murmu, Chatradhar Mahato, Suksanti Baskey, Prasun Chatterjee wanted to be declared as political prisoners as provided in Section 24 of West Bengal Correctional Services Act, 1992.
Citing the maxim that “those who believe in the system, it is their duty to ensure fairness to those who question the system” the court granted them this status. While adjudicating the case the court extensively relied upon various judgments given by the Supreme Court of India. Citing the case of ‘Rajender Kumar Jain v. State through Spl. Police Establishment and others’ {1980(3) SCC 435} that “It is sufficient to say that politics is about government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy.”  The court observed that Maoists fall within the same category. Justifying the different treatment which such offenders deserve, the court emphasized that reasons for violating law, to them, remain different from ordinary delinquents. Citing from a Supreme Court judgment that the “People do not take up arms, in an organized fashion, against the might of the State, or against fellow human beings without rhyme or reason. Guided by an instinct for survival, and according to Thomas Hobbes, a fear of lawlessness that is encoded in our collective conscience, we seek an order. However, when that order comes with the price of dehumanization, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived people revolt””  ‘Nandini Sundar v. State of Chhattisgarh’ AIR 2011 SC 2839 ( Salwa Judam). The court declared that it is apparent that Naxalism or Maoism is a political movement wedded to violence and the participants thereof are political offenders.” Should the State administer a different treatment to those offenders who take recourse to violence by subscribing to retributive or deterrence penology”? The court asserted that this is a question, which is neither new nor raised for the first time. Right from the colonial era, political prisoners have been treated differently within India and abroad for different reasons.” Therefore, in the above background there can be no denying the fact that the basic human rights cannot be denied to the Naxalites or Maoists.” The court declared the Maoists/Naxalites are political prisoners within the meaning and ambit of Correctional Services Act.
In context of Jammu & Kashmir though there is no statutory recognition to political prisoners, Indian state has practically, to some extent, acknowledged the difference between political prisoners & other offenders. Since 1995 it allowed International Committee of Red Cross to visit these prisoners and ascertain their conditions within jails. This distinction, however, remained confined to the recognized jails and not other detention centers, like interrogation centers and police stations, though the fact remains that most of the brutalities are perpetrated against detainees inside interrogation centers and police stations. Since Maoists now stand recognized as political offenders it is high time that their jail conditions be subjected to international monitoring and supervision. Without such monitoring this judgment too, like many others, may be followed in breach rather than compliance.       
Despite this judgment the ambit of the distinction between political and non-political offenders still remains confined to the domain of treatment of prisoners. It has not yet crept into the jurisprudence of conviction and penology. The question that courts are yet to answer is that whether penalty for political offences should be the same as the ones committed for a personal gain, revenge, greed or fulfillment of lust. In case courts remain mute on this point or fail to answer it they will be liable for betrayal of raison deter of Indian freedom struggle and those who suffered for it.  Furthermore absence of a settled judicial approach in this domain is bound to lead selectiveness and discrimination in this field. Those who defy and subsequently come to power will manage to get exonerated where as the ones who remain struggling will get penalized. This happened with the cases filed against opposition leaders during emergency. In spite of being alleged to be involved in sabotage of a railway track George Fernandez became railway minster in the Janta party government. LK Advani too shields himself under the idea of political offences for whatever he did on December 6, through inciting Babri Masjid demolition. A Kashmiri or a Maoist activist on the other hand never enjoys this privilege and has to spend his life shuttling between jails and courts. By making prisoners of war immune to trials for their acts and omissions, and offenders of political nature from extradition, international law has already acknowledged this difference. It is lack of acknowledgement of this difference that has made the Courts in Jammu & Kashmir to go by literal interpretation of statutes in case of Dr. Qasim Faktoo, Nazir Ahmad Sheikh and Showkat Ahmad Khan. Apart from being indifferent to the idea of difference between political and non-political offenders the judgments in these cases and some Supreme Court judgments are in conflict with the right to equality. They make an arbitrary distinction between present day life convicts and those in whose case life term was treated to be equivalent to fourteen years of imprisonment for more than a century now. Consistent practice creates a legitimate expectation with the minds of the life convicts and it stands acknowledged within jail manuals. By overlooking this aspect of the trail the courts deny the legitimate expectation of Faktoo and others who have already undergone fourteen years of imprisonment. It is high time that the courts instead of remaining besieged to prevalent notions of national security embark upon a paradigm shift and follow such approach in context of political offences which is in line with legal frame work that operates in relation to extradition and prisoners of war at international level.  

An expert in International Law, the author teaches law at Central University, Kashmir. Opinions and ideas expressed in this article are author’s own.

This site uses cookies to deliver our services and to show you relevant news and ads. By using our site, you acknowledge that you have read and understand our Cookie Policy, Privacy Policy, and our Terms of Service.That's Fine