Reining in a soft state

Published : Oct 28, 2000 00:00 IST

The hearings in the Supreme Court on the Veerappan associates release case and the stern questions that the court has posed to the States concerned, reveal the potential of judicial intervention in checking the soft state syndrome.

THE curious spectacle of two State governments, which have the full range of the instruments of state power at their command, running around and pleading with the Supreme Court to let them release 51 people from detention in order to meet the demands of a forest brigand, has marked an ironic twist in the Veerappan-Rajkumar saga.

The Supreme Court's oral observations and the probing questions it put to counsel of the two State governments during the hearing of the Veerappan associates release case in the past fortnight seem to indicate that the court is not prepared to agree to t heir release from jails in the two States in exchange for the safe return of Rajkumar. The Supreme Court's August 29 interim order that none of the Veerappan associates should be released on bail or otherwise pending further orders from the court, is gen erally seen as an indictment of the two State governments, which have seemingly succumbed to the pressures generated by the Veerappan-related crisis.

The court's order came on a Special Leave Petition (SLP) filed by a retired Deputy Superintendent of Police, Abdul Karim, who challenged the Mysore Special Judge's August 19 order on an application by the State government for the release of some of the a ccused who are facing trial under TADA on charges of killing Superintendent of Police Harikrishna and Sub-Inspector Shakeel Ahmed in August 1992. Abdul Karim is the father of Shakeel Ahmed. The August 19 order allowed the Special Public Prosecutor to wit hdraw charges against the accused in the case under Section 321 of the Code of Criminal Procedure (CrPC), which deals with withdrawal of prosecution proceedings. Although there are 115 accused in this case, the Sessions Judge, Mysore, ordered on August 2 8 the release on bail of only 51 accused. This order was also challenged before the Supreme Court.

The court's interim order restrained the Tamil Nadu government from releasing five detenus lodged in jails in the State, against whom the State government has filed charges under TADA and the National Security Act (NSA). Veerappan had demanded the releas e of these five accused.

The court heard Karim's SLP, along with another public interest petition filed by advocate B.L. Wadhera who had challenged the decision of the two State governments to release the detenus. Wadhera argued that the decision was illegal as it did not advanc e the administration of justice, and as it was motivated by considerations of political expediency. He pointed out that even though the State governments could exercise powers under Section 321 of CrPC to withdraw prosecution in the public interest, they should explain the rationale of such directions in accordance with the various guidelines framed in the Supreme court's judgments pronounced earlier.

The Supreme Court expressed concern over the inability of the Karnataka and Tamil Nadu governments to apprehend Veerappan for the past eight years. The court was not convinced that the release of the detenus was necessary to secure the return of Rajkumar , and that if this is not done it would lead to serious law and order problems and public unrest in Karnataka, affecting the Tamil minorities. In oral observations the bench asked the governments to maintain public order, and said that if they could not do it, they should make way for somebody else who could do so.

A legitimate question has arisen as to whether the present governments in the two States can be held responsible for the failure of the earlier governments to apprehend Veerappan. At the same time, the two State governments cannot be faulted for taking t he view that the consequences of the release of the Veerappan associates would be less harmful than failure to secure the safe release of Rajkumar.

But the Supreme Court did not agree with this proposition. It asked counsel for Karnataka how the State government was sure that, upon withdrawal of the TADA charges against the 51 Veerappan associates, Rajkumar would be set free. It also asked on what b asis the State government had identified the 51 accused for release, when Veerappan had demanded the release of all the 115 accused in the case. Counsel for Karnataka, Solicitor-General Harish Salve, argued that these 51 accused had no terrorist links, a nd their only 'offence' seemed to be that they belonged to Veerappan's caste. This statement, in turn, amounted to admitting that their initial detention under TADA was wrong. Counsel also argued that decisions taken by the executive on policy matters, p articularly those involving larger issues of security in a crisis situation which needed quick decisions were not amenable to judicial review. The court, however, felt that it could inquire if all relevant material had been taken into account in deciding to withdraw the TADA cases.

Wadhera argued that the Public Prosecutors concerned had not applied their minds independently to any relevant material to satisfy themselves of "good grounds" in the interest of administration of justice and the wider public interest. He also filed an a ffidavit from Walter Dawaram, former Director-General of Police, Tamil Nadu. Dawaram, an Indian Police Service officer, commanded the joint task force consisting of personnel from both the States and led operations against Veerappan's gang.

Dawaram's affidavit questioned Tamil Nadu's plea that the impregnability of the forest area made it impossible to apprehend Veerappan. Dawaram claimed that as a consequence of the numerous encounters with the Veerappan gang that he had led, its strength had come down from 150 to a mere five. More than 20 officers and men of the police force had been killed and injured. After his exit from the joint command, he alleged, Veerappan could enlarge his gang with the accretion of criminals, proclaimed extremis ts and banned anti-national organisations. "The Tamil separatist forces and LTTE supporters have established links with Veerappan as they find the forest under him a haven for all their anti-national and terrorist activities. They have elevated his statu s from a mere forest brigand to a champion of Tamils," Dawaram, who had a reputation while in service as a tough, no-nonsense officer, stated in his affidavit.

The Supreme Court, which expressed extreme distress over the apparent nexus between Veerappan and various secessionist elements, asked the State governments to satisfy it with the aid of primary material why Veerappan had not so far been apprehended, and what would happen if Veerappan's associates now in jail, were allowed to join him in the forest. The court observed that the effect of the release of the accused Veerappan associates on the witnesses who had deposed so far and on those who are yet to de pose before the trial court, and on the morale of the police force and on society at large had to be taken into consideration. It also asked whether giving in to the brigand's demands would not amount to an invitation for another kidnapping, followed by fresh demands.

The Supreme Court Bench comprising Justice S.P. Bharucha, Justice D.P. Mohapatra and Justice Y.K. Sabharwal, while hearing the case on October 19, observed that all concerned in both the States had been acting out of "pure fear" and reacting with "panic" from the beginning. Indicting the Tamil Nadu government for failing to provide security to Rajkumar at his farm house in Gajanur village in Erode district on the ground that he had not asked for it, and terming it an "unpardonable" lapse, the Bench even wondered whether the whole drama was indeed a ploy to help Veerappan.

THE court described as a "lethal combination" the forging of links between the Tamil Nadu Liberation Army (TNLA) and the Tamil Nadu Retrieval Troops (TNRT) with Veerappan. (The TNLA and the TNRT want Tamil Nadu to secede from the Indian Union. Some of th e TNRT members were trained by the LTTE). The Bench said, "We will take into account the fact that Tamil Nadu has confirmed the association of Veerappan with these secessionist elements... What we are worried is that from now on, the government is not go ing to face Veerappan alone but a lethal combination of a bandit associated with secessionist elements." The Judges asked, "If there is an association of these people with Veerappan in that terrain, who knows what plan will be hatched, what arms would be procured and what training would be imparted?" Justice Bharucha said that Veerappan's activities coupled with that of the secessionist forces were "really dangerous and should wake everybody up."

Whatever the denouement in the case before the Supreme Court (the court has adjourned further hearings on the matter till October 31), the court, by holding the two State governments guilty of various omissions and commissions, has seriously impaired the ir current efforts to secure Rajkumar's release. In Kandahar last year, the Central government acquiesced to the terrorists' demand to release three hardcore militants from Jammu and Kashmir in exchange for the passengers and crew members of Indian Airli nes Flight IC-814. Since then there has been no move towards evolving a national policy in such situations. Although Home Minister L.K. Advani indicated that the Centre was working on such a policy, no serious efforts seems to have been made in this dire ction. The Centre has apparently washed its hands of the Veerappan episode, claiming that the State governments concerned did not seek its intervention.

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