10 May 2017
We thank you for your reply dated 3 May 2017 in relation to the clemency granted to the prisoners in the case of Bara massacre 1992. PUDR applauds the efforts of NHRC in taking up the matter with the Home Ministry and facilitating the President’s scrutiny on the mercy petition which eventually led to the commutation of the death sentence of the prisoners. PUDR, however, believes that commutation in this case is justice half done. The decision to confine them in prison for the rest of their natural life without any consideration for remission sentences the prisoners to an endless ordeal of imprisoned life to which they have already been subjected, for years.
While the decision for commutation was taken bearing in mind the inordinate delay caused in execution of the sentence, we believe that the following facts must also be considered as mitigating factors in the case which make a strong case to demand for their remission.
- The convicts in this case belong to the poorest of the poor sections of the society and are mainly dalits. The facts of the case and the judgements which had earlier sentenced them to death need to be viewed in the context of the impoverished status of the convicts and their Dalit/OBC identity within a society marked by caste-class hierarchies.
- Bara was the only case of caste massacre in which the accused were tried under TADA which allowed for unfair provisions related police confessions, denial of bail and denial of appeal before the High Court. Additionally, the TADA designated court glossed over several infirmities in evidences in the course of trial. A law that was allowed to lapse in 1995 on account of evidences related to its rampant misuse, continues to be the basis of their indefinite incarceration.
- During the decades of 1980s and 1990s a series of caste massacres took place in Bihar in which the Ranvir Sena (upper caste army) was responsible for 23 incidents of mass killings resulting in 256 poor and Dalits losing their lives. In at least four of the cases which were tried under normal law, Bathani Tola, Laxmanpur Bathe, Nagari Bazaar and Miyanpur, 125 members of Ranbir Sena were brought to trial, and 56 were initially acquitted by the lower courts and 68 were later acquitted by the Patna High Court for want of evidence. Only 1 person was given life imprisonment in the Nagari massacre.
- Despite the infirmities in the trials under TADA in the case of Bara massacre, the accused where given death sentence while the perpetrators in other caste massacres that belonged to the upper castes have been acquitted. This makes the bias in the justice system fractured by caste and class, most apparent and raises serious questions on the basis of the punishment granted to the Bara convicts.
- The prisoners in the Bara case have been kept in solitary confinement for years despite the Supreme Court ruling in 2014 in Shatrughan Chauhan vs Union of India that solitary confinement of death row prisoners is unconstitutional.
- The prisoners in the Bara case since their incarceration have never got any relief, never granted parole and were not allowed to attend even the last rites of family members. One of the prisoners, Dharmender Singh, has sustained permanent damage in his legs due to inhuman torture while in custody. Another prisoner, Krishna Mochi is succumbing to mental abnormalities on account of several years of ordeal in prison. The families of the prisoners barely managing their basic survival needs find it extremely taxing financially to even make a jail visit.
In Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors (2006), the Supreme Court had ruled that the ‘President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review'. One of the grounds under which the Supreme Court can review the President’s decision is when "certain relevant materials were not considered or certain materials of extensive value were kept out of consideration". PUDR believes that the facts mentioned above have not been allowed to become the central concerns of the case so far in decided upon the fate of the prisoners.
PUDR, therefore urges the Commission to take the matter of remission in case of the six prisoners of Bara, further. A sentencing that ensures imprisonment till the end of natural life, is inhuman and purposeless. In absence of any possibility of release or remission, the confinement of prisoners for the rest of their lives defeats the very purpose of punishment which is reform and subjects them to torturous conditions in over-crowded jails. The justice system for them at best appears to be vengeful and retributive despite the orders of commutation.
To discuss the matter of granting relief to the prisoners, PUDR seeks an appointment with you. We urge you to kindly facilitate our endeavour of seeking justice for the prisoners.
Cijo Joy and Anushka Singh