Stripped Law - Rajan Case - A Revisit.

3/10/2014 Stripped Law: Rajan Case: A revisit..
http://strippedlaw.blogspot.in/2011/06/rajan-case-revisit.html 1/7
Rajan Case: A revisit..
Jyothy Jawahar Rajan Case
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This is a case which evolved from the tears of a father Prof: T.V. Eachara Warrier,
who is the petitioner in this case. His sons disappearance draws from him this
eloquent, moving and remarkable statement on cruelty, courage and enduring
hope. This case touches upon a story that took place in India but it is a story but it is
the story of millions throughout Asia and many parts of the globe. The global human
rights community must listen to this story. But unfortunately the much of these
communities tries to avoid getting close to these realities faced by the
overwhelming majority of the people of the world preferring instead to dwell in
academic works on human rights which also on their parts avoid these realities.
Professor Warier through filing this petition was on an unsuccessful attempt to get
his son out of the temporary
Police camp to where he was taken one morning for no reason. Camps such as this
exist in many other countries even now. These are places where the rules of life and
death are very different to the rest of the world. They are places where relatively
low ranked officers have absolute power to decide who to arrest, hw to arrest them,
hoe to torture them, when to kill them, how to dispose of their dead bodies. Above
them are other persons- senior police officers, politicians and bureaucrats- who
must hide the truth from the families of victims and wider society. A bond of
complicity thereby forms between the actual perpetrators and other authorities, a
bond so strong that in this story it did not break even in cases where the father
knew any of the government officials personally. This is not a story of some event in
the history; it is the story of todays India, todays Asia. Across the region huge
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16, Jun
2011
numbers of innocent people suffer from the cruellest forms of torture and death in
custody, and thousands are forcibly disappeared. Most victims do not have a father
as educated and as vocal as the petitioner in this case.
In India human rights abuse by the police are set to increase dramatically. A body
known as the Malimath Committee has recently suggested reforms to the criminal
justice system, which would create conditions, which are even worse than those
that happened in this case. These reforms, if realised, will remove the basic legal
defences available to an accused person. They will permit torture, custodial deaths
and disappearance to occur anywhere anytime. Proper redress will no longer be
available through the courts, which will themselves become places for bargaining,
life with corruption. This case is a story for our times. It should be read carefully by
anyone concerned about the real meaning of human rights. It should be on the
reading list of every human rights and democracy education programme. This father
deserves to be heard. We will all be better off if we learn something from his bitter
and deeply moving experiences.
This case portrays the stories of the thousands of others whose pain and suffering
have never been made public. In India, human rights abuses by the police are set to
increase dramatically. This case holds a lot of relevance in this context and it brings
about the various unique aspects of law, it shows the different possibilities of the
writ of habeas corpus and how the court has issued it in the present case.
Facts in Issue
The petitioner in this case is the father of one Mr. P. Rajan who was a final year
engineering student in the regional engineering college, Calicut during the
academic year 1975- 76. The petitioner has been residing in Cochin after he retired
as a Professor of Hindi in the Government Arts and Science College, Calicut. Rajan is
said to have been a fairly bright student and he is said to have never indulged in any
kind of political or objectionable activity. His only activity was a said to be in the
field of music, drama and other arts. He had been the Secretary of the Arts
Association in his college in1973-74. The petitioner complaints that his son Rajan
was taken into police custody on 1.3.1976 when Rajan was staying in the college
hostel and the police had not disclosed his whereabouts. The Principal of the
college informed the petitioner by registered letter sent on the same day that his
son had been arrested by the police.
This was at a time when the proclamation of emergency was in force. The petitioner
has not seen his son thereafter nor has been able to get any definite information
about him. The petitioner made enquiries to police officers, who he felt would be
able to give him the details about his sons arrest and also about his whereabouts. It
was at this point of time that the petitioner came to know that Rajan was arrested
according to the directions of the Deputy Inspector General of Police, Trivandrum
who was the 3
rd
respondent in the petition and also that he was kept under the
custody of the crime branch of the State Police. The petitioner then met the then
home minister Sri.K.Karunakaran and made a complaint to him, which he promised
to look into. But nothing turned out of it. Subsequently, the petitioner sent a
petition to the Home Secretary to the Government of Kerala on 15.6.1976, another
on 1.7.1976 and yet another on 6.8.1976. To all these there was not a reply or not
even an acknowledgement to the petitioner.
The petitioner continued his efforts by sending similar representations to the
President of India and Home minister to the Government of India with copies to all
the Members of Parliament from Kerala. The President had made assurances and
the petitioner had made representations to the Prime Minister of India. He had also
made similar representations to two of the Parliament members from Kerala, Shri.
A. K. Gopalan of the Lok Sabha and Shri. V. Vishwanatha Menon who informed him
that they received intimation from the Prime Minister and the Home Minister of the
Government of India respectively and that the matter was receiving their attention.
But all these attempts made by the petitioner turned out to be yielding no purpose
at all. There were many things happening at the ministerial level, which a layman
like the petitioner failed to understand. Every incident, which followed, seemed to
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be very suspicious. Later on the petitioner received an acknowledgement letter,
which was sent to Shri. Vishwanatha Menon from Shri. K. Karunakaran directing the
release of Rajan and on the receipt of this the petitioner met several police officers
and coming to know that some of the students who had been similarly arrested
were detenus in the Cannanore Central Jails he vigorously searched in vain for his
son in the three central jails and various other police camps and other places.
On the last occasion when the petitioner met the then Chief Minister Shri. Achutha
Menon he expressed his helplessness in the matter and also said that the matter
was not dealt by him but by Shri. K. Karunakaran the then Home Minister. It is also to
be noted that Shri. K. Karunakaran who was a candidate in the oncoming elections
had, in public meetings held at Kalpetta and Mala mentioned that Rajan was
arrested and kept in detention, as he was involved in a murder case. But, if that be
the case the petitioners son should have been produced with before a Magistrate
under the provisions of the Code of Criminal Procedure in spite of the fact that the
rights under Articles 21 and 22 remained suspended during the period of
proclamation of emergency. The petitioner was disheartened by the response of
the authorities and responsible officials who were in fact hindering the path of
justice, which was to be made available to the petitioner and his son. Subsequently,
the petitioner went for litigation in the Kerala High Court where the first writ was
filed after the emergency period the case was Prof: T.V.Echara Warrier v. Secretary
to the Ministry of Home Affairs and Others.
Case in the background of the emergency period in the India
In the history of India, the days from June 22, 1975 to March 21, 1977 were the black
days of the Emergency. Many in the country are unaware of what the Emergency
meant, and how it affected the lives of common people. A State of Emergency is
declared under special circumstances. Emergencies have been in force in different
countries to face foreign aggression, or deal with internal violence. When a State of
Emergency is declared, it affects the whole populace of a country. In India, the
Emergency was declared not to protect
the country from danger, but to protect the personal interests of a single leader,
Mrs. Indira Gandhi, the then Prime Minister. She had been defeated in elections.
She then filed an election petition, which she lost, and she appealed to the High
Court and the Supreme Court. She lost her case everywhere. After that, to safeguard
her own political position she declared the Emergency, thereby concentrating all
powers in herself. Most of the country was in deep sleep when the Emergency was
declared. India awoke in darkness. The emergency deeply affected the social life in
Kerala. Even those who supported emergency strongly felt the absence of freedom.
The was censor not only of the news papers but also limits on the freedom of
expression among the people, who were scared to meet the talk among
themselves, scared to criticize either Mrs. Indira Gandhi or Mr. K. Karunakaran. All
sorts of human rights were taken away mercilessly. The Universal Declaration of
Human Rights was declared in 1948. It encompasses the rights of people anywhere
and everywhere in the world. To make sure that these rights are fully enjoyed by
the common person, the Supreme Court of India had made certain suggestions.
Justice V. R. Krishna Iyer compiled these into law. Of these, the most important
ones are the right to life and the right to know. If these two rights are protected, all
others will get protected along with them. The clause dealing with the right to life
makes clear the rules applicable during arrest, and details of the rights of the person
arrested. It clearly instructs that the person arrested should be brought before the
court within 24 hours of arrest, and subjected to medical examination at least once
within 48 hours of arrest. If the authorities had obeyed these rules, Rajans case and
others like it would never have happened. The most inhuman aspect of the
Emergency was that the two major human rights, the right to life and the right to
know, were totally denied. The tragedy of my son was typical of this denial of rights.
The Emergency was lifted over 25 years ago. The general public has forgotten those
days almost completely. This is dangerous. The dark powers of the Emergency are
still there. Like venomous snakes they are hiding in their holes. Given a
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chance, they will raise their heads again, so people need to be constantly alert.
There should be strong defences built to face these dark forces.
How such simple questions assumed so much of relevance?
The questions involved in this case were simple ones. The petitioners case is that
he did not know why his son was arrested, that he made enquiries to police officers,
who, he felt would be able to give him details about his sons arrest and also about
his whereabouts. The petitioner was a person who had very good relations with
officials of the state as a last resort he had knocked the doors of many a number of
responsible officials of the state as well as the centre whom he expected to give
him some informations about Rajan. He even made representations to the
President of India and the Home Minister to the Government of India with copies to
all the Members of the Parliament from Kerala. The prayer that he made to all these
responsible people were that at least the whereabouts of his son may be made
known so that the sufferings of himself and his family may be alleviated. Instead of
providing some information to the petitioner as to where his son was, surprisingly
all these high officials made him wander from one place to the other with numerous
letters and representations. The irony is that from all these places the petitioner
received the same vague responses even the ones who were close to him had
turned their faces when such an issue came up. Even the Chief Minister Mr. Achutha
Menon made a remark that he was helpless and that the whole issue was dealt with
by the Home Minster. Even the most powerful person of a state had said that he was
helpless; we can in the abovementioned situations imagine the plight of common
man of those periods. The court has also in its judgement made an observation that
the respondents had not viewed the matter with the sense of responsibility
expected of them at least when their attention was drawn to the serious situation.
The court adds that the petitioner has posed here only three simple questions:-
(i) Whether Shri Rajan was taken into police custody on 1.3.1976?
(ii) Whether Rajan is in police custody at the moment?
(iii) What relief the court should grant in the circumstances of the case and
against whom?
The solution to it would have been equally simple but, the solution has been
rendered to be difficult due to the unhelpful attitude of the respondents. Also, if
we observe the matter closely we can very well see that there has been a lot of
ministerial interference in the matter which would not have taken place if it was
some other case which had taken place at time where such an emergency was not in
force in the country. Otherwise why should the Home Minister of a state bother to
give explanations with respect to the arrest of a student and that too with
supportive imaginary and cooked up stories in election campaigns in which he took
part across the state known to be the sampana rally. Moreover the explanation
that was given by Mr. K. Karunakaran who himself admitted the fact that Rajan had
been detained, was insufficient and the court has itself pointed out in its judgement
that the explanation was not meeting the point raised by the petitioner, for one
would like a direct answer particularly in view of the seriousness of the averments
as to whether the petitioner did meet Shri. K. Karunakaran on 10
th
March 1976, the
answer to which was not provided. This is pointing fingers to the fact that there
were enough and more ministerial interference in this case. The petitioner and also
Professor Bahauddin, the principal of the regional engineering college had all made
attempts to meet the investigating officers like Shri. Jayaram Padickal. But, the
response that they received was shocking. Instead of information about Rajan what
they got was insult and humiliation. All these weakened the feelings of the
desperate father who had to surrender even his self- respect in front of officials like
him. In the witness statements it mentioned that one Mr. Joseph Chali was also
arrested along with Rajan on the same day and was taken in Police vans by police
officers who were in mufti but, none of the witnesses gives any information with
respect to the exact time at which both were arrested neither have they mentioned
whether they had actually seen the boys being taken into the van and by which all
officers. All these creates doubts in the mind of the court as to whether the
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witnesses are speaking the truth, whether they are fearing anyone which would
probably be the reason why they are not speaking out what they saw. It has come
out that repeated representation made to the Government of Kerala were not of
any use to the petitioner. He was not even shown the courtesy of an
acknowledgement. As mentioned already he had knocked the doors of many
officials of the State Government. It could possibly be noted that the several
representations received by the Home Secretary did not come to the notice of the
Home Minister. But the representation sent along with the letter of Shri.
Vishwanatha Menon did come to his notice. The respondents in this case had all
filed counter affidavits but four of the respondents did not purport to speak on the
issue before the Court from their personal knowledge. They were not in a position
to say from first hand knowledge that Shri. Rajan was not taken into police custody.
Also Shri. Lakshmana, the District Superintend of Police had not offered himself for
cross- examination. What does all this show? It shows that there were certain things
which are unknown to us and which have been cleverly tried curtained from the
judiciarys eyes in all possible ways by the Executive.
The writ of Habeas Corpus
The first writ filed at the High Court after the Emergency was lifted was Professor
Eachara Warrier v. Secretary to the Ministry of Home Affairs. It was filed on February
25, 1977. The next day all the major newspapers in Kerala, and also outside the
state, carried details of the writ. The news spread through Kerala like wild fire.
There was such a huge crowd in the High Court on the day the writ was considered.
Because of this crowd, the case was shifted to the most spacious hall in the High
Court. Rajans case was being felt among the people. The Kerala State Assembly was
boiling over after the heat of the Emergency. On February 26, one member raised
Rajans case in the Assembly. Mr. Karunakaran jumped up from his seat and declared
that Rajan had not even been arrested. Such was the hue and cry raised while the
petitioner filed a writ petition for the issuance of a writ of habeas Corpus. The court
found it very difficult to decide upon the remedy that was to be given to the
petitioner. The court held that their object was not to impose any punitive action for
the improper conduct of any official but invoke and exercise the authority placed on
it to protect the citizens freedom solemnly remembering the obligation of the
Higher Judiciary of the land to act as sentinals of human liberty whenever and
wherever there is serious threat to it. It added that the petitioners grievance was
genuine and as a distressed father he invoked the powers of the court to command
whoever is in custody to direct production of his son so that he may be released.
Relying on a R.J. Sharpes treatise on the Law of Habeas Corpus the court even held
that the writ of habeas corpus might even be issued to several persons in order to
know who has the actual custody of the person who has been detained unlawfully.
It also held that in the normal course the writ of habeas corpus is issued to present
the person who has been detained by a party before the court but in the present
case it has been issue in order to know the truth as to whether Mr. Rajan had been
actually taken into custody. In the circumstances of the case it would be difficult for
any person seeking a writ of habeas corpus to pin point the officer who has arrested
the person to police custody. When the fact was that officers using police powers of
the state took persons into custody dealt with them as is custody was required for
interrogation, it was not necessary that the petitioner had to show which officer had
the custody of the person at the moment. To consider otherwise would have been
limiting the scope of the writ of habeas corpus and deny the legitimate exercise of
the function of the court. Thus the writ of habeas corpus was issued to numerous
persons since there was a doubt as to who had the actual custody of Shri. Rajan. The
object of the Court was similar to that of the petitioner i.e., to know whether Rajan
was taken into custody or not if so, where he was?
Judiciarys emphasis on the Human Rights perspectives involved: A Conclusion
The court has throughout its judgement opined that the case is more a human
problem than a legal one. In its words the case is all about A heart broken father,
with is wife mentally deranged, with his home made desolate after the
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disappearance of his only son, with his two daughters grief stricken after this
tragedy, has, after approaching the high dignitaries of the State and the Centre
taken refuge in this Court as a last resort requesting this Court to exercise its sacred
duty to cause the production of his son who disappeared from 1.3.1976. The Court
has done the best it can do to protect the interest of a desperate family shattered in
the lost of their beloved son and loving brother. The doubts that were created by
the officials as well as the witnesses throughout the case became a black mark in
the process of the trial. The reluctance shown by the witnesses to give truthful facts
and clear evidences. The haphazard manner in which the investigation was carried
out and moreover the extraordinary executive interference in the case all created
doubts in the minds of the judiciary. The court had throughout its judgement given
comments on the non- cooperation of the investigating officers who failed to give
informations about the petitioners son. They did not even make remarks as to
whether the petitioners son was in their custody or not. The absence in
transparency throughout the case was enough for the Court to move into such a
conclusion. The Court thus gave more weight age to the feelings of a grief stricken
family, which is a representative of the society as a whole, rather than providing
loopholes to the executive and its officials to escape from the clutches of the
interests humanity. It has given an order, which is a walk towards the judiciarys
interest towards the protection of Human rights of the people who approach it with
expectation, which has got the value of their own lives. As a conclusion a scene may
be depicted in the words of the Rajans father Prof. T.V. Eachara Warrier:
That day even in the midst of her pain she handed over to me a handful of metal
coins and said I give this to you, because I only trust yougive this to our son Rajan
when he comes back
As she completed these words the cold hands of death had already touched her. She
slept in the hope that her son would come back one day.
That plantain of rice was still kept open in the kitchen as if in the middle of the
night.. Wet in the heavy rains. someone would come to eat it
hungrilythat was his mothers last wish
Memories of a Father, written by Rajan's Father is available here:
Memories of a Father
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