New Delhi: “We demanded justice and they are sending us to jail. With pride in my eyes, a smile on my lips and revolutionary songs in my voice, I will fearlessly go to jail.”
These are the words of Himanshu Kumar, a 57-year-old Gandhian activist. On July 14, the Supreme Court dismissed the activist’s petition for an independent probe into alleged extrajudicial killings of Adivasis by the Chhattisgarh police and central security forces during anti-Maoist operations in Bastar’s Dantewada in 2009.
“There is not an iota of material in the investigation on the basis of which even a finger can be pointed towards the members of the police force,” the Supreme Court said, imposing a fine of Rs 5 lakh on Kumar, to be submitted with the Supreme Court Legal Services Committee within four weeks. In the event that Kumar fails to deposit the fine, instructions would be given to authorities concerned to recover it, the court said.
It said that on the basis of chargesheets that were filed after the killings were investigated “would indicate that the alleged massacre was at the end of the Naxalites (Maoists)”.
“The materials collected in the form of the chargesheets substantiate the case put up by the respondents that the villagers were attacked and killed by the Naxalites,” the court concluded.
But the court’s decision to allow an interlocutory petition by the Union government has caused a lot of controversy. The petition asked the court to pass an order for an in-depth investigation to “identify the individuals/organizations, who have been conspiring, abetting and facilitating filing of petitions premised on false and fabricated evidence” before various courts “with a motive to either deter the security agencies to act against the Left Wing (Naxal) militia by imputing false charges on them or to screen off the Left Wing (Naxal) militia from being brought to justice by creating a false narrative of victimization”.
It asked the Chhattisgarh government or a central agency to take appropriate steps in accordance with the law. “We clarify that it shall not be limited only to the offence under Section 211 [false charge of offence made with intent to injure] of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface,” the court said.
This decision was criticised by former Patna high court judge Anjana Prakash, who told The Wire that defenders of human and civil rights “once felt secure coming to the courts with their grievances – no matter how small”. Activists never felt that their “petitions with fervent appeals to help was adversarial litigation. Nor did the state much less the courts behave as one. But times have evidently changed”, she said.
Kumar, in a video interview with The Wire, also said that the judgment is “proof of the Supreme Court’s changing character”.
Who is Himanshu Kumar?
Kumar is the son of a freedom fighter from Muzaffarnagar, Uttar Pradesh. A close ally of M.K. Gandhi, his father Prakashbhai Sharma had played a prominent role in several movements during the freedom struggle, participating in the Quit India Movement in 1942, staying with Gandhi in the Sevagram ashram for three years and travelling across the country with Vinoba Bhave during the Bhoodan Movement.
In 1988, Kumar visited Dantewada along with the late Gandhian activist Nirmala Deshpande and his father. After travelling across the area for around 15 days, he realised it may be one of the most neglected in the country. Kumar had always believed that true independence could be reached only if young people serve the villages. In line with these beliefs, he and his wife went to Dantewada in 1992. Gradually, they developed a team of thousands of activists across four districts of Chhattisgarh who worked for the causes of women’s empowerment, livelihood, health and education. He started the NGO Vanvasi Chetna Ashram.
In 2003, Kumar was appointed as a member of the Dantewada unit of the National Legal Services Authority (NALSA), an organisation of the Government of India. He told The Wire, “NALSA used to hold weekly meetings in the Adivasi villages. Even the district judges used to join us. We organised legal awareness camps where the judges used to tell the Adivasis, ‘Don’t let your poverty become a hindrance in seeking justice. If you face injustice, come to the courts. We will ensure that you get a government lawyer.’”
He followed this advice, he says, by filing the petition in the Supreme Court. “The Supreme Court told us that whenever there is some injustice done to the Adivasis, help them reach the courts – and we believed them. We did that only,” he said. He says perhaps, the courts don’t feel the same way anymore.
When The Wire asked why this could be the case, Kumar said that the top court’s verdict in another PIL, filed by Nandini Sundar in 2007, could have played a role in the state and the judiciary becoming “vindictive” towards activists. Kumar and others offered their help in the case.
In the Nandini Sundar verdict, the Supreme Court ruled that the government’s actions of arming local youth, called special police officers (SPOs), to fight the Naxals in Chhattisgarh was unconstitutional and illegal.
The court also addressed the ill-treatment, torture, murder and forced displacement suffered by local people, reducing “them to a ‘sub-human existence’ resulting from disproportionate action” on the Chhattisgarh government’s part. The court also asked the government to desist from funding the recruitment of other vigilante groups.
The government has not implemented the court’s orders, Kumar says. “The SC ordered that FIRs should be against SPOs who committed atrocities on the Adivasis and villages should be rehabilitated. But the government did not rehabilitate a single village. And so far, no FIR has been filed on a single SPO. In fact, our organisation rehabilitated 40 villages in the area,” he said.
Referring to Salwa Judum (a state-sponsored armed militia which was started in 2005), he added, “The government gave rifles to 5,000 goons and called them SPOs. They were tasked with clearing the villages. Paramilitary forces were also deployed along with them. These people started burning the villages. More than 650 villages were burned, thousands of people – including the children and the elderly – were killed, thousands of women were raped, their farms were burned down, their property was looted and their water sources were poisoned.”
Salwa Judum became increasingly violent and spun out of the government’s control. In the Nandini Sundar case, the Chhattisgarh state government admitted in December 2008 that Salwa Judum and security forces had burnt houses and looted the property of locals.
What is the PIL about?
In three incidents that occurred in September and October 2009, more than a dozen Adivasis were killed in the Gachhanpalli, Gompad and Belpocha areas of the Dantewada district in Chhattisgarh.
While locals and activists blamed the police and paramilitary forces such as the CRPF for the killings, the Chhattisgarh government (headed by BJP’s Raman Singh at the time) held the Naxalites responsible.
In Gompad, witnesses told journalists at the time that nine people were killed by the police as part of anti-Naxal activities.
Discussing the two massacres, Himanshu Kumar said at a press conference, “We used to stay in a village called Nendra in Bijapur district. People from the nearby village of Gompad came to us and informed us that the Commando Battalion for Resolute Action (CoBRA) of the CRPF killed 16 people in their village.”
The villagers described in graphic detail how the bodies of children and elderly people were mutilated and how others were brutally killed, he said.
Kumar told The Wire, “Along with other activists and civil society members of Delhi, we decided to form a fact-finding team. The team visited the village where the Adivasis narrated the whole incident. Sodi Sambo, a woman who was shot in the leg, was a witness to the whole incident. She was brought to Delhi and a press conference was held in the Constitution Club of Delhi. Prashant Bhushan, Swami Agnivesh, Arundhati Roy, Nandini Sundar and many others attended the conference and the villagers revealed everything about the massacre there. The very next day, we went to the office of Human Rights Law Network (HRLN) and filed a petition in the SC.”
Apart from Kumar, family members of some of the people who were killed were petitioners in the PIL.
Kumar said that six petitioners in the case – including key witness Sodi Sambo – were abducted by the police and subsequently threatened. “We have a video of that kidnapping. Uniformed people in cars without any number plates came to kidnap the petitioners,” he says.
After the PIL was filed, the police tampered with the evidence, Kumar says. “The then superintendent of police Amresh Mishra, who had orchestrated the massacre, sent his men to exhume the bodies of those who were killed. The hands of the buried Adivasis were cut off. He was afraid that the forensic report would reveal that the villagers had not fired guns at the soldiers,” he claimed. Kumar and others brought the incident to the Supreme Court’s notice, which rebuked the Dantewada police’s actions. The court had also observed at the time that the government should not dub human rights activists as Maoist sympathisers.
However, again in 2017, the Chhattisgarh government alleged that both Kumar and Soni Sori were Maoist sympathisers, requesting the SC to fine them for filing false cases. The SC did not entertain that petition either.
So, eventually, why did the court dismiss his petition?
Kumar asks, “Is the Supreme Court trying to say that asking for justice is a crime now? Is it saying that if you knock on the doors of the court, you will be put in jail? Does the SC want to stop the judicial process? Is it asking the people to not come to the SC for justice? Does it want to shut itself down?”
He said that the duty of the SC was to get the matter investigated to find out who killed these people. But it instead declared that an investigation is not needed and fined him Rs 5 lakh. “The government claims that I have filed this case to help the Maoists. But I do not understand how if the Supreme Court gives justice to the victims, will the Maoists benefit? And if justice is not given and the person who seeks justice like me is fined, then how will this benefit the country?” asks Kumar.
When asked about his hopes for the Indian judiciary, he said, “I believe that the Supreme Court of India is not the property of some judges who are scared of the government. It is the property of the people of India. It is our court. Together, we will save it. We will save both the judiciary and democracy.”
He once again reiterated that he won’t pay the fine. “We demanded justice and they are sending us to jail. With pride in my eyes, a smile on my lips and revolutionary songs in my voice, I will fearlessly go to jail. I won’t pay the fine. We will fill jails and will tell them that the people of India are not going to be scared by your fascist government. We will bring this fascism down. We will fight this war till our last breath.”
The 57-year-old Kumar suffers from myasthenia gravis, a condition which causes weakness and rapid fatigue in muscles. He also has blood pressure and asthma. When asked what jail could do to his health, he smiled and answered, “I might die. When people don’t get treated for myasthenia gravis on time, it reaches their lungs and they cannot breathe. I know, I might die.”
History of highlighting alleged state abuses
In the conversation with The Wire, Kumar said he had highlighted several cases of alleged state-sponsored massacres against the Adivasis in India. He said, “This is not the only case. I have submitted 519 cases to the Supreme Court, including murders, rape, kidnapping and robbery by the police. And so far, not a single case has been found to be false.”
He listed a few in detail.
In 2009, 19 Adivasis from the Singaram village, including four women, were allegedly lined up in a row and gunned down by the police. The National Human Rights Commission (NHRC), in its report, called the killings a fake encounter.
In 2008, the police gouged out the eyes of three Adivasis living in the Salwa Judum camp of Matwara. Their bodies were buried and the blame was put on the Maoists. “Following this, I moved the high court. The NHRC investigated the matter and accepted that the murder was done by the police. In this case, the SHO and two constables were jailed,” he said.
Seventeen Adivasis, including nine children, were killed by the CRPF in Sarkeguda village in 2012. The government claimed that these people were Maoists. The villagers told us that the people killed by the forces were innocent. “Later, the inquiry report of the judicial commission also found that those killed by the CRPF were innocent unarmed tribals,” he said.
In 2013, eight Adivasis were murdered by the police in Edesmetta village. Those killed were called Maoists by the government. Again, the report of the judicial commission revealed that those people were innocent civilians.
“We lodged complaints about the rape of Adivasi women by the constables of the police. A team from the National Human Rights Commission investigated the matter and reported that there is prima facie evidence to support that 16 Adivasi women were raped by police officers in November 2015,” Kumar said.
Kumar said that he had also complained that many tribal girls in Chhattisgarh jails were tortured in police stations, sexually assaulted and jailed under false charges. His allegation was supported by a female deputy jailer, Varsha Dongre. She said, “When I was posted in Bastar jail, I trembled to see the minor tribal girls whose bodies were burnt with electric shocks.” After this comment, the government suspended Dongre.
Kumar asks, “When, till date, not a single case raised by me has been found to be false, then how is the Supreme Court calling me a liar and that too without conducting an inquiry into the 2009 killings?”
“The court says that the police had registered a report and also filed the chargesheet, so we should have trusted the police and should not have come to the Supreme Court. But how can the victims trust the investigation of the policemen who were involved in the murder gang? Those Adivasis had come to the SC to demand justice against the police. They demanded an investigation by CBI or SIT to find out if the police was involved in the murder,” he says.
He told The Wire, “The aggrieved villagers had earlier sent a complaint to the Superintendent of Police of Dantewada in writing about the entire incident, but the police did not help. The copies of these complaint letters were handed over to the SC. So, the court knew that the local police were of no help.”
The court had also pointed out that in a statement before a magistrate in Delhi’s Tis Hazari Court, six of the 12 applicants did not identify the attackers. But, in fact, in the petition, the same applicants had identified the attackers as policemen.
Kumar explains why this was the case. “The fact is that those six people were kidnapped by the police to fabricate fake evidence to save themselves. We also have the video of this kidnapping, which was made by the journalists present there. After the abduction, the police kept them in illegal custody, threatened to kill them and forced those Adivasis to change their statements. Interestingly, in the changed statements, the tribals said that some unidentified people in uniform came from the forest and killed the petitioners. These people, however, did not say that Himanshu Kumar is lying or that they have put the case under any pressure,” he says.
He stated, “It was the responsibility of the Supreme Court to get the matter investigated to find out who the killers were. After all, how can the Supreme Court give a clean chit to the accused without an investigation? And without investigation, how can they call us guilty?”
At a press conference in Delhi, after the court’s verdict, Kumar said the judges were ‘scared of Modi’. A journalist asked if this might invite contempt of court charges. He responded, “We are not disrespecting the law, but criticising the wrong judgments. We want to save the dignity of the Supreme Court which can happen only when it gives judgments to safeguard the human rights and constitutional rights of the public and not by putting a fine on the petitioners. We can’t leave the judiciary to such judges. It is an institution of the public of India. This judgement will strip the Supreme Court of its dignity and we are trying to save that.”
Kumar also had some advice for young activists. He said he hopes that the decision to go to jail instead of paying the fine will motivate other activists.”If Himanshu Kumar didn’t bow down before injustice, you [other activists] should also fight without any fear. We have to continue the fight for justice. Keep fighting and don’t give up,” he said.
In a Facebook post dated July 16, Himanshu Kumar wrote (in Hindi),
‘My family agrees with my decision to not pay the fine imposed for raising my voice for justice and I will happily go to jail.
My daughter has made a poster in which under my photo, she wrote, ‘I am proud of being his daughter.’
Soni Sori, a social activist who was also my student, has said that I am very happy that my guru is going to jail while fighting for justice for the Adivasis.
I suffer from Myasthenia so I know that I won’t be able to survive for long in the prison
My last wish is that I should be put in the jail of Bastar where innocent tribals have been kept as Naxalites. I want to spend my last time with Adivasis who are wonderful people, filled with immense love.’