When the police acts above the law

Gajala Gopanna, during almost seven and half years in jail, was known to be a quiet reticent type, blending easily with the hundreds of other undertrial prisoners he was lodged with. The superintendent of the Jagdalpur Central Prison in Bastar, Chhattisgarh himself confirmed this to the press on September 30, 2014, the day of his release. During the few minutes that Gopanna then got to speak to the press at the prison gates, he said that he planned to go back to agriculture in his village in Nalgonda, Telangana.

But that was not to be. The Chhattisgarh police had, when they arrested him in early May 2007, projected him as a fierce Naxalite leader, personally involved in many violent incidents. Fifteen trials in courts in various districts had proved these claims to be quite hollow; but they were in no mood to bow to the courts' common verdict of acquittal.

So, as Gopanna was driven off through the streets of Jagdalpur on his lawyer's motorbike, he was followed, intercepted and rearrested by a police posse. They claimed his custody on the basis of warrants that had been applied for and obtained by them over seven years ago, but had been deliberately kept aside to be used on just such an occasion. The police officers even now do not disclose how many warrants they are going to use - five, six or more. Considering the delays in courts, this re-arrest quite easily means a few more years in jail for Gopanna; and after acquittal and release, there could yet be another round of re-arrest.

"Gate-ing"

The blatant injustice of such a deliberate ploy by the police to indefinitely extend the imprisonment of Gopanna despite his acquittal by the courts is however not something very unusual. It is known to be used in most countries where the police exercise much greater powers than are assigned to them by law. In the US the practice is so rife as to have earned a place for itself in American prison slang; it is called "gate-ing - to confront someone at the gate with new charges". Protest singer Joan Baez too tells about it in her Prison Trilogy composition, which is based on true stories from prisons where her husband, David Harris, was jailed in 1969-70 for resisting the Vietnam war draft. The third part of her trilogy tells the tale of Kilowatt, the 65-year-old "aging con", who, "on the day of his release … was approached by the police" to "claim another 10 years of (his) life".

Here in India the practice is widespread, particularly for political prisoners. During the time spent by the two of us at Nagpur Central Prison, where a large number of prisoners implicated in naxalite related cases were lodged, there was a dedicated police squad deployed at the gates to monitor the releases and, where possible, to ensure the re-arrest of political prisoners. Sometimes, re-arrest in new cases would be done just before the judgment in old cases; at other times, as in Gopanna's case, the old warrants would be fished out and executed on the day of release; but most of the time, the re-arrests took the form of sheer abduction - as in the case of one of us, Arun Ferreira.

Abductions

On 27th September, 2011, Arun, after acquittal in eight cases, happily bowed through the prison's wicket gate for what he thought was the last time. But, even before his foot could settle on the free earth outside the gate, he was literally lifted off the ground by a group of muscular plain clothed young men, thrust forcibly into an un-numbered car and whisked away in the presence of his parents, brother and lawyers. He was later shown to have been arrested somewhere in another district and was implicated in two new cases. There was no warrant, not even an explanation of the cause of detention. It was abduction pure and simple, but both, the jail authorities on whose premises it happened, and the local police station within whose jurisdiction it took place, were complicit, and refused to even receive a complaint.

Arun's abduction scenario is again no exception, but one among many that are regularly played out at prison gates in various parts of the country. Most happen unseen and remain unnoticed. But there have even been cases where abductions have even been done in full media glare. Mallesh Kusma was one such prisoner in Nagpur Prison, who achieved final release only after going through three rounds of abduction type re-arrests - one of which has a detailed photographic record. Sheila Marandi, a tribal woman in her late fifties, has been acquitted or obtained bail in over ten cases but continues to remain in jail in Jharkhand for the last eight years due to four re-arrests at the gates. There are many more.

The case against re-arrest

The case against such rearrest is firstly based on the violation of the fundamental right to a speedy trial caused by the deliberate delaying tactics of the police. Further, it is also a denial of the right guaranteed under Article 22(1) of the Indian Constitution that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest". Since this provision stipulates that the information should be provided "as soon as may be", the police tactics of deliberately concealing some cases for re-arrest, many years later, is a brazen constitutional violation.  Besides, in the case of abduction, there is the total illegality of the act and the arbitrary abandonment of all procedures established by law for legitimate arrest.

No one can thus deny that the case is very strong against gate-ing, abduction at the gates and other forms of deliberately delayed re-arrest, which are all highly violative of constitutionally guaranteed fundamental rights. However few cases are ever filed and since high courts, which hear petitions against constitutional violations, move extremely slowly, by the time the cases reaches near to solution the victims have invariably spent numerous extra years in jail without relief and the pleas have turned infructuous.

Punishment by police without conviction by courts

The law presumes that an accused is innocent until proved guilty. In Gopanna's case this presumed innocence has already been confirmed by the courts 15 times over and will be probably confirmed many more times again. But all that will still be insufficient to win him his freedom.

Finally, it will not be the courts, but the police higher-ups who will decide when Gopanna will be set free. Not only is it they who have decided his "guilt", it is they who will also decide the period of his "sentence". Thus Gopanna's prolonged period as an undertrial will effectively be a punishment sans conviction meted out to him - not by the courts, but by the police authorities who first arrested him and who will keep on re-arresting him till they feel that they can do it no more. And this flagrant abuse of due process of law seems likely to go on; unless some means are devised to deny the police their self-claimed right to be a law unto themselves.