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CREAMY LAYER AMONG CRIMINALS

On November 26, 17 Maoists accused in the 2010 massacre of 24 jawans of the Eastern Frontier Rifles at Silda in West Bengal’s Midnapore district were granted the status of “political prisoners” by a district court.

The status, awarded under the West Bengal Correctional Services (WBCS) Act, 1992, entitles an inmate, among other things, to a comfortable bed, a television with a cable connection, two newspapers, barber service and non-vegetarian food.

Section 24 of the WBCS Act states that if a person is charged under Sections 121-124A of the Indian Penal Code (IPC) that deal with sedition and waging war against the state, he or she may be granted the status of a “political prisoner” and entitled to special privileges. Moreover, if a person has been conducting a mass political movement and in the process is charged under Sections 302 (murder), 379 (theft), 395 (dacoity) or 411 (hiding stolen articles) of the IPC, the offence would be treated as a political offence and the offender may be given the political prisoner status.

Critics say that this provision of the WBCS Act — and, incidentally, this exists only in West Bengal — ought to be done away with to prevent abuse and to ensure that terrorists and criminals do not receive special treatment in jail.

“It is only in West Bengal that such an option exists. The Correctional Services Act needs to be amended or safeguards included to stop the misuse of these provisions by terrorists and just about anybody who may be ‘waging war against the state’,” says Nabakumar Ghosh, a senior public prosecutor in West Bengal.

Misuse of the law is, indeed, a serious worry. Last month, Aftab Ansari, convicted of masterminding the killing of five policemen in front of the American Center in Calcutta in 2002, and given the death sentence by the Calcutta High Court, also applied for the status of a political prisoner. His appeal cited the West Bengal Correctional Services Act and the Calcutta High Court ruling on August 6 that granted the same status to Maoist inmates such as Chhatradhar Mahato and V. Venkateshwara Reddy.

The state’s criminal investigation department has already written to the West Bengal government to either scrap the law or put in safeguards as members of terrorist organisations such as Laskhar-e-Taiba and others may also exploit it to try and claim the status of political prisoner.

Experts say that the only way to stop the misuse of the law is to amend it at the earliest. Says Ranvir Kumar, inspector-general, prisons, “The act definitely calls for an amendment. Since ‘waging war against the state’ is a political offence, terrorists and others can use this particular clause to get the status of a political prisoner.”

The state law department is, in fact, planning to do just that. “Law officers have been asked to look into the matter and very soon we are going to bring amendments to the act. We are planning to submit our proposal by early next year,” says West Bengal law minister, Chandrima Bhattacharya.

The ministry of home affairs too recently asked West Bengal to amend the law. The issue was brought to the home ministry’s notice after the Calcutta High Court awarded the status of political prisoner to eight Maoists in August and Aftab Ansari petitioned for the same privilege in November.

This contentious provision of the WBCS Act was introduced by the Left Front government in 1992. Its rationale, argues former jail minister Biswanath Choudhury, was that those who were carrying out political movements to bring changes to society should not be treated on a par with heinous criminals.

B.D. Sharma, additional director general (East), BSF, and a former inspector general, correctional services, agrees that the original amendment certainly had a progressive outlook. “It was framed to protect the democratic rights of the people.” But he also concedes that the provision is open to individual interpretation. “This ambiguity gives anyone who is ‘waging war against the state’ the opportunity to exploit it to his advantage. So the law certainly needs to be amended,” he says.

Human rights activists feel that the fault lies in the application of the act and not in the act itself. “We are a democracy, where there can be opposing movements which may not always follow a legal process. Political movements can be violent at times. But the act should not be applied to those who are not Indian citizens fighting to change the system. There is a big difference between Maoist protests and Al Qaeda-type of terrorism,” says Deboprasad Roychoudhury of the Association for Protection of Democratic Rights.

Indeed, almost everyone agrees that the law should be amended forthwith and the offending clause deleted. Kausik Sinha, who has defended Maoists such as Chhatradhar Mahato, too feels that the law needs clarity and fine-tuning. “The law should be amended in such a way that the nature of the crime would be considered properly before granting anyone the status of political prisoner,” he says.

It now remains to be seen how soon the West Bengal government responds to the clamour to bring about a much-needed amendment to the WBCS Act.