Between the law and the outlaw

The Supreme Court's intervention in the efforts to meet Veerappan's demands for the return of Rajkumar adds to the predicament of the Karnataka and Tamil Nadu governments.

THE stalemate over the abduction of Kannada film actor Rajkumar and three of his associates by forest brigand Veerappan and his cohorts has continued to haunt the Tamil Nadu and Karnataka governments into a seventh week, with the legal hurdles in the way of meeting some of the abductors' demands proving to be the latest hitch. All that the checkmated Chief Ministers of the two States could do as they watched the drama unfold in the courts and in the forests was to counsel patience and make it known that they were trying to expedite their moves to secure the release of Rajkumar while gingerly manoeuvring their way through a legal minefield.

NAKKHEERAN

Rajkumar and three others, kidnapped on the night of July 30 from the village of Gajanur close to the Tamil Nadu-Karnataka border, have now become the hostages whom Veerappan has held for the longest period. The acute embarrassment of the Tamil Nadu and Karnataka governments, especially of the S.M. Krishna government in Karnataka, has meanwhile been compounded. The Krishna government has been facing flak from a number of quarters, including political opponents, the film industry and the powerful Rajkuma r Fans Association, for not being able to secure the release of the actor. According to the Leader of the Opposition in the Karnataka Legislative Assembly, Jagadish Shettar, "there has been virtually no government in existence in Karnataka ever since Raj kumar's kidnap".

Yet none of Krishna's critics has been able to indicate the possible alternative course of action that he should follow. As the Congress(I) Chief Minister himself confessed, "only those who are in the hot seat can fully understand the situation."

Krishna received a hand from Congress(I) president Sonia Gandhi when she sent Ghulam Nabi Azad, generally secretary of the All India Congress Committee, to Bangalore, to assure the Chief Minister that he had the backing of the party's central leadership with regard to his handling of the situation.

The latest legal twist was the filing of a special leave petition (SLP) in the Supreme Court on August 21 by Abdul Kareem, a retired policeman and father of Shakeel Ahmed, a sub-inspector of police from Karnataka who was slain allegedly by Veerappan in A ugust 1992. And then there was a related public interest petition preferred by two Delhi-based lawyers. These petitions stopped the moves by the two governments to barter 126 prisoners - including five Tamil militants jailed in Tamil Nadu and 51 others b ooked under the Terrorist and Disruptive Activities (Prevention) Act (TADA) - for Rajkumar and three others.

On August 29, hardly 24 hours after a weary Krishna had announced at the end of a meeting of a high-power committee constituted to deal with the crisis that his government had dropped all charges filed under different sections of the Indian Penal Code (I PC) against 121 (51 of whom face TADA charges) of Veerappan's suspected associates, a three-member Bench of the Supreme Court directed that pending further orders none of them should be released on bail or otherwise. The court's orders, on Kareem's petit ion questioning an August 19 decision of the Designated TADA Judge in Mysore according "consent" to the Karnataka government's special prosecutor Ashwin Kumar Joshi to withdraw charges for offences under Sections 3, 4 and 5 of the TADA Act against 51 all eged Veerappan associates, meant that the Karnataka government could not fulfil one of the bandit's key demands. (These 51 - including 12 women - detenus, who have been in a Mysore jail for seven years, till recently without trial, are among the 121 peop le whose release Veerappan has sought.)

Kareem's SLP contended that the August 19 order had "resulted in an unprecedented miscarriage of justice as the learned Designated Judge failed to appreciate that the permission (of the government to withdraw TADA charges) was sought on grounds extraneou s to the interest of justice". Chava Badrinath Babu, Kareem's advocate, told Frontline that while the initial plea in the petition was against the dropping of TADA charges against the detenus, as a corollary it sought a stay on their being granted bail. "In order to take a lenient view and get them released, the Karnataka government is circumventing the law by dropping TADA charges," he said.

Kareem's petition has posed other questions, the most important of them being the resort to Section 321 of the Code of Criminal Procedure (CrPC) by public prosecutor Joshi. Said Badrinath Babu: "While it is the prerogative of the public prosecutor to wit hdraw charges under Section 321, it cannot be done under pressure from the executive. There can be no extraneous considerations. We believe that in this case he has sought the dropping of charges on extraneous considerations. How can the government be ju stified in dropping TADA charges and not contesting the bail applications of the detenus? It has wholeheartedly agreed to the contention of the accused without any reservations when on the contrary there is plenty of evidence to deny bail to the detenus. Joshi will also have to file his reply since he has now been impleaded in the matter."

A related SLP challenging an order of the Mysore Principal and Sessions Court on August 28 granting bail to 50 of these 51 detenus was also admitted in the Supreme Court. In the wake of public interest petitions, the Supreme Court also put on hold steps initiated by the Tamil Nadu government to release Ponnivalavan, Muthukumar, Manikan-dan, Sathyamurthy and Radio Venkatesan, the five Tamil militants whose release Veerappan has demanded.

A STUNNED Karnataka government, which was allowed to file a counter-affidavit, reacted on August 30 by doing a volte-face on its stand that it had dropped all cases booked under sections of the IPC against 121 of Veerappan's associates. Stating th at through a Government Order of August 28 it had only withdrawn cases filed under TADA, State Law and Parliamentary Affairs Minister D.B. Chandre Gowda sought to clarify that the IPC cases could only be withdrawn after the Supreme Court decided on the S LP filed by Kareem.

But if the Supreme Court's interim orders with regard to the release of Veerappan's associates put the Karnataka government on the backfoot in its negotiations with Veerappan, more tough talking was to come from the same court. On September 1, a three-me mber Bench comprising Justice S.P. Bharucha, D.P. Mohapatra and Y.K. Sabharwal made oral observations criticising the Karnataka government for both its recent decisions - succumbing to Veerappan's "illegal and unreasonable" demands (hostages-for-prisoner s swap) in a bid to secure the release of Rajkumar, and its inability to apprehend Veerappan over the past eight years. The Bench asked: "What have you done for eight years to apprehend that man? We make it clear it is the responsibility of the State gov ernment to maintain law and order. If you cannot do it, then quit and make way for somebody else who can."

The court was not impressed by the argument put forward by Harish Salve, the Solicitor-General of India who appeared for Karnataka, that the impugned decision of the Karnataka government to withdraw the TADA cases was not taken in order to secure the rel ease of Rajkumar but in the larger interest of the linguistic communities, and harmony and tranquility in the State. The Bench rejected the argument, indicating that the deal was made purely for extraneous or political reasons, and observed that "as the facts exist today (September 1) we will not give any relief as it amounts to compounding negligence upon negligence upon negligence". The court, however, agreed to Salve's plea that Karnataka be permitted to file a more comprehensive affidavit giving the reasons and the background that prompted it to decide to withdraw the TADA cases. The court on September 3 asked both the States and the petitioner to submit all documents pertaining to the matter by September 13.

WHILE the Supreme Court's staying of the move to release Veerappan's associates has been a thorn in the flesh for both Krishna and Tamil Nadu Chief Minister M. Karunanidhi, it has brought cheer to Kareem. The 76-year-old person who sold a residential sit e which had been allotted to him in order to raise funds for his legal battle against the State, told Frontline that "justice has been done". He said he had been aghast that the government, which had as recently as last December fought tooth and n ail efforts by non-governmental groups to quash TADA charges against the 121 persons, had now capitulated to the demand. (The Karnataka High Court has over the past few years dismissed over 40 writ petitions - including a habeas corpus petition - challen ging the legal aspects of detaining the 51 detenus under TADA.)

Kareem said that support for his fight had come from all over. He said that Dr. Harshavardhan Raju, Director-General of Police and now Commander of the Karnataka Special Task Force (KSTF), had sent him to a lawyer in Bangalore to file an affidavit agains t the bail application of the 51 detenus.

Others who have lost their near and dear ones to Veerappan's bullets are also vehemently opposed to the government's move. Preetha, widow of slain Karnataka Special Task Force Superintendent T. Harikrishna, said: "This would bring to nought the supreme s acrifice made by many policemen and others."

Both Tamil Nadu and Karnataka requested the court to expedite the matter. But given its complexity and the many replies and rejoinders involved, the matter could take a while. With legal hurdles preventing the two governments' from making the prisoners-f or-hostages deal a basis for the release of Rajkumar, the governments might just have to look for other means to secure the release. So far they have refused to do so, ruling out, for example, commando action as it would endanger the lives of the hostage s. According to police officials, any change in the governments' strategy could only be expected after the legal avenue route is closed. Said Krishna: "We have been able to establish contact with Veerappan on three occasions through our emissary (R.R. Go pal). This is how governments conduct business in hostage crises - by opening up negotiations. No other method has prevailed."

The Karnataka government, in a bid to circumvent an unpalatable judgment from the apex court vis-a-vis Kareem's writ petition, hinted that the Central government could be approached to promulgate an ordinance to do away with already registered TAD A cases (The TADA Act was repealed in 1995).

At an all party meeting convened by Krishna to brief leaders of other political parties on his discussions with Karunanidhi, it was suggested that Karnataka promulgate an ordinance. But it was pointed out that it was for the Centre to do it taking into c onsideration the national situation.

ON September 6, Gopal returned to Chennai unable to secure the release of Rajkumar, for the Supreme Court indefinitely stayed the release of the detenus. Besides, the Karnataka High Court again imposed the stay on the hearings of the Justice Sadashiva Co mmission. Gopal and Nakkheeran associate editor A. Kamaraj met Karunanidhi and briefed him on the mission. The same evening Gopal and film actor Rajnikant, who has been showing a keen interest in the release of Rajkumar, flew together to Bangalore . Gopal briefed Krishna and also met Rajkumar's wife Parvathamma.

Two days later, on September 8, Karunanidhi flew to Bangalore and met Krishna. Karunanidhi stressed that he had come to Bangalore to assuage the feelings of Kannadigas and to see to it that nothing was done to harm the amity between Tamilians and Kannadi gas.

Krishna and Karunanidhi stressed that though Gopal had so far been unsuccessful in bringing back Rajkumar, he had been able to convince Veerappan of the two governments' earnestness in seeking to meet Veerappan's demands. Krishna pointed out: "Some kind of arrangement had been worked out by Gopal with Veerappan (for the release of the hostages) but the subsequent intervention of the Court has delayed the process."

The governments will stick to Gopal as their emissary since, as Krishna explained, "not everybody and everyone can get to Veerappan". Added Karunanidhi: "Gopal has been able to take our explanations to Veerappan, and Veerappan accepted some of them, but the matter went to the Court and got delayed. We cannot call Gopal's efforts a failure, only a setback."

But the governments' insistence on continuing with the strategy of negotiations through the medium of Gopal has its share of critics in Tamil Nadu and in Karnataka. According to P.G.R. Sindhia, former Home Minister who is now the floor leader of the Jana ta Dal (United) in the Legislative Assembly, the Karnataka government should come out with a fresh strategy instead of depending only on Gopal. Sindhia added: "Even if the governments want to stick to Gopal they must adopt a carrot and stick policy. So f ar only the carrot is in evidence. Where is the stick?"

The leaders of most of the Opposition parties in Karnataka, during a meeting of the floor leaders of the various political parties on September 4 and again on September 9, even while offering their full support to the government in its efforts to secure the release of the hostages, asked the government to rethink on the strategy since the one used had failed to produce the desired result. During the September 4 meeting, for the first time the Opposition, which had been until then one with the Krishna go vernment in its responses to the abduction, sounded a discordant note. But Krishna's response was that negotiations were at the mid-way stage and Veerappan would probably understand the legal complexities and release his hostages. But Gopal's return on S eptember 6 proved Krishna wrong. The brigand had insisted that his demand that the governments free 126 of his associates be first met.

ANOTHER key demand of Veerappan that the governments pay compensation to victims of alleged Special Task Force excesses has also run into legal difficulties. Though the two governments have decided to set aside Rs.5 crores for this purpose, the proceedin gs of the Justice Sadashiva Commission (set up under the chairmanship of Justice Sadashiva by the National Human Rights Commission in June 1999 to look into the alleged human rights violations) were stayed again by the Karnataka High Court on September 5 .

A single Bench of the High Court, which had stayed the functioning of the Commission on March 27 acting on a writ petition filed by M. Muthuraya, a former STF officer - one of the many officers against whom allegations that range from illegal confinement , extra-judicial killings, torture, forced labour and rape have been levelled - had given the commission a breather on August 8 when it modified its earlier order to permit the Commission to hold sittings. The order, however, specified that the NHRC shal l not act on the Commission's report till the writ petition was disposed of.

But on September 5, a division Bench of the High Court comprising acting Chief Justice Ashok Bhan and Justice Gururajan, acting on another writ petition filed by Muthuraya, stayed an order of the single Bench that allowed the Commission to go ahead with the inquiry. Both parties (the petitioner and the NHRC) were asked to submit relevant documents.

Muthuraya had challenged the authority of the NHRC to delegate powers to a Commission and argued that under Section 36(2) of the Protection of Human Rights Act, 1994 (the NHRC functions under this piece of legislation) the NHRC (or a State commission) ca nnot inquire "into any matter (of human rights violation) after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed". While most of the allegations relate to May 1993, complaints from tribal welfare organisations and human rights groups to the NHRC were only made in 1997. The Commission itself was only set up in June 1999. Prior to the stay, the Commission had held sittings at Gobichettipalayam near Erode, and Kolathur, near Mett ur (Frontline, March 31, 2000).

According to Justice Sadashiva, it is now up to the State's Advocate-General, who will appear for the NHRC, to convince the court. Sadashiva had decided to resume the sittings of the Commission at Kolathur from September 11, since during the previous sit ting there many of the people who had turned up were unable to testify. But the court's intervention upset the plans.

The fact that Karnataka is yet to establish a State Human Rights Commission is a handicap too. Had a State commission existed, all that the NHRC would have had to do was to forward the papers to it to look into cases such as STF atrocities. But suggestio ns - a writ petition in this regard was filed by two non governmental organisations some time ago - made to the Karnataka government have not been acted upon. All that the government of the day said was that it was looking into them.

But Justice Sadashiva told Frontline categorically that the writ petition did not mean a bar on a remedy for the alleged victims. He said: "In the instance of the panel not being able to function, the NHRC will itself record a finding of illegal c onfinement, rape, etc., and decide what action has to be taken. This can be acted upon by the governments."

The Karnataka government was also embarrassed when it was reported that the State's Director-General of Police, C. Dinakar, had conveyed to Home Secretary M.B. Prakash his opposition to the dropping of charges against the suspected associates of Veerappa n. But Dinakar would neither confirm nor deny reports in this regard.

THOUGH life has gone on as usual for nearly all of Karnataka's residents - whatever their linguistic identity - especially in Bangalore which bore the brunt of vandalism in the immediate aftermath of the abduction, Rajkumar's continuing absence has affec ted the film industry. Despite the abducted actor's plea to the contrary, the activities of the Kannada film industry have come to a stop. Though there are a number of voices which would like to restart operations, the general feeling is that a few peopl e who have taken "whimsical decisions" have been able to "frighten away those who want to restart". Theatres in Bangalore reopened after a month. The matter is creating a rift between the Kannada film industry and non-Kannada film distributors and exhibi tors.

For their part, Tamil organisations have gone out of their way to condemn Veerappan for his actions and have disassociated themselves from the brigand, stating that they did not need "a plunderer and murderer to take up the cause of the Tamils".

While both the Chief Ministers were unwilling to spell out what changes in strategy could be expected, Karunanidhi hinted at the direction they may be forced to take when he said, "We will try to speed up the case in the Supreme Court and also mount effo rts to persuade Veerappan to release the hostages, but in the meantime if Krishna and I feel that there is no other alternative, a situation may arise when we will have to seek central assistance". The Tamil Nadu Chief Minister disclosed that his Home Se cretary had been periodically informing the Union Home Secretary of the developments and that both he and Krishna would meet Prime Minister Atal Behari Vajpayee depending on the court's verdict. Thus the ball now lies in the Supreme Court.