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POTA and the Case of Raja Bhaiya

The manner in which successive governments in Uttar Pradesh have made use of the extraordinary powers of initiation and dropping of proceedings granted to the executive under the Prevention of Terrorism Act is brought out in the case involving Raghuraj Pratap Singh, alias Raja Bhaiya. The entire episode also brings out the way in which caste is ubiquitously embedded in the political grid of the country.

POTA and the Case of Raja Bhaiya

The manner in which successive governments in Uttar Pradesh have made use of the extraordinary powers of initiation and dropping of proceedings granted to the executive under the Prevention of Terrorism Act is brought out in the case involving Raghuraj Pratap Singh, alias Raja Bhaiya. The entire episode also brings out the way in which caste is ubiquitously embedded in the

political grid of the country.

UJJWAL KUMAR SINGH

O
n November 10, 2005 a twomember Supreme Court bench passed a judgment1 on petitions against the order of the Uttar Pradesh government (August 29, 2003) withdrawing the Prevention of Terrorism Act (POTA) case against Raghuraj Pratap Singh, alias Raja Bhaiya, the commonly used appellation for the “Raja of Kunda”, and the state POTA review committee (April 30, 2003) ruling that no prima facie case could be made out against Raja Bhaiya. The judges found the orders of UP government and the state POTA review committee unsustainable, held that there existed a prima facie case to proceed against the accused under Section 4(b) of POTA2 and directed that the case be shifted to a special court in Madhya Pradesh to ensure a fair trial.

A significant characteristic of extraordinary laws like POTA has been the inordinate power of initiation of proceedings that they give to the executive, making it the primary decision-making agency in the matter of imposition of POTA in any specific case. This prerogative of the executive has played itself out in ways that manifest the interplay between legality and politics, with ramifications for coalition politics and federal principles. In significant ways the case also discloses the social bases of Indian politics, in particular, the ways in which caste is imbricated decisively and ubiquitously in the political grid of the country. In the entire episode of Raja Bhaiya’s arrest under POTA and the political and legal battles that followed it, what was striking, was the larger rajput camaraderie cutting across political divides against the then chief minister Mayawati, which gradually transformed the “goonda of Kunda”, as Kalyan Singh, a former BJP chief minister described Raja Bhaiya, into Maharana Pratap, the legendary rajput warrior king of Chittaur.3 We examine the trajectory of the case against Raja Bhaiya to show how POTA was inextricably imbricated in complex political configurations and permutations in the state. As we shall see successive political regimes in UP through its invocation and withdrawal used the law instrumentally and arbitrarily. The Supreme Court judgment at least ensured the minimal procedural norms for the operation of the rule of law amidst the closures that POTA proposes and prescribes. It may be seen as a process of reclamation of space for procedural democracy, since POTA forecloses the uncertainties of outcomes that just, fair and

Economic and Political Weekly January 7, 2006 transparent procedures necessarily institute in a democracy.

Caste and Prerogativeof the Executive

In the topsy-turvy political scenario of UP, the invocation of POTA on January 25, 2003 by Mayawati of the Bahujan Samaj Party (BSP), on Raghuraj Pratap Singh, independent MLA and minister in the previous Bharatiya Janata Party (BJP) government in the state and on his 80year old father, made things messier. It may be noted that both the BSP and Samajwadi Party (SP) were opposed to Prevention of Terrorism Ordinance (POTO) and had committed themselves tovoting against it in Parliament. Earlier, in December 2001, while gearing up for the forthcoming assembly polls in February 2002, Mayawati took issue with both, Rajnath Singh’s BJP government in the state and the BJP-led National Democratic Alliance at the centre, declaring that POTO was a manifestation of BJP’s “hidden agenda” and “political selfishness”, in the context of polls in three states where it was directly or indirectly in power but “in a bad shape”, viz, UP, Uttaranchal and Punjab.

In the absence of a clear mandate in the elections, and the tussle between BSP and SP – two significant political players in the state – the BSP formed the government with the support of BJP, with Mayawati as the chief minister. Raghuraj Pratap Singh, a rajput feudal lord whose rule of terror over parts of eastern UP was chronicled in the long list of criminal cases against him and his father, led a group of 11 independent MLAs to the governor of the state in November 2002, to withdraw support from and dislodge Mayawati’s government.4 Against this background, the imposition of POTA on Raja Bhaiya was largely construed as an act of political vindictiveness, aimed at snuffing dissident voices targeting Mayawati’s leadership.5 This attempt at consolidating her position shook the BSP-BJP alliance in the state and simultaneously drew a wedge between the BJP’s central leadership and

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its state unit. The powerful rajput segment within the BJP, which had patronised Raja Bhaiya and rewarded him in their earlier stint in UP with a ministerial berth for breaking the Congress and SP, criticised their legislators and the national party leadership for not taking an aggressive stand on the issue. While Arun Jaitley tried to balance the tilting coalition by reiterating its “larger political and social compulsions” and bought time by proposing that “the party would comment only after going through the FIR filed against the two”, former chief minister Rajnath Singh branded the arrest as a “political misuse” of the act. Mayawati labelled the criticism a “casteist and religious approach”.

As the relationship between BJP and BSP, the two coalition partners, took a downslide, the storm within the state BJP over the arrest continued to brew, and with it, the dissatisfaction over the central leadership’s inaction. The UP state BJP chief Vinay Katiyar termed the arrest as “political vendetta”, declaring aggressively

Economic and Political Weekly January 7, 2006

“Agar POTA laga hai to POTA hatega” (if POTA has been imposed, it can be removed) and “agar POTA laga to sota chalega” (if POTA is imposed then the whip will unleash). The SP, Mayawati’s political rival in the state, which like the BSP professed the support of the backward castes, with a claim to rajput support owing to the presence of Amar Singh, plunged into the campaign for Raja Bhaiya’s release. In a manifestation of rajput camaraderie, UP Congress chief Arun Kumar Munna, demanded that the BJP pull out of the coalition. Similarly, Amita Singh, a BJP MLA in the Mayawati government representing the Amethi constituency where her husband Sanjay Singh descended from the ruling lineage, criticised the arrest as “unjustified”. Meanwhile, lodged in Banda jail, Raja Bhaiya donned the air of a martyr: “...whether I live or not, the fight to establish democratic norms against dictatorial rule should continue”, he wrote from prison, urging in his letter to legislators – MPs and MLAs

– to join hands to fight “state-sponsored terrorism”.

Meanwhile, the threat to Mayawati’s government that had started looming with the withdrawal of support by Raja Bhaiya and his supporters, was gradually receding with Mayawati adding to her numbers eight breakaway MLAs from Congress and legislators of the Apna Dal considered close to SP. Her confidence resonated in the manner in which she took on all her opponents collectively, denouncing their “manuwadi mentality”. Her dalit constituents, mostly agricultural labourers, lauded her for taming a rajput and settling scores with two other prominent rajput leaders, Rajnath Singh of the BJP and Amar Singh of the Samajwadi Party.

The central government that had initially tried to strike a balance by forming a committee under Arun Jaitley seemed inclined to wash its hands of the case. Given the receding vote-share of the BJP in the assembly elections, clearly the appeasement of rajput sentiments was weighed against the benefits of continuing to humour Mayawati, and found wanting. On the other hand, for the state BJP unit the calculations had a different dimension. Out of 88 BJP legislators in the state, 30 were rajput. There were, a total of 89 rajput MLAs in the UP assembly, together forming a significant force. Moreover, there was not a single constituency in UP that did not have a minimum of 10,000 rajput votes, which probably explained the mounting anxiety of the legislators: “We have nothing to tell our voters on why the party did not take an aggressive stand on POTA”, lamented one of them.6

Arbitrary Executive Decisions

With August 2003, however, the configuration of political forces in the state changed. While even for a united opposition the task of toppling the government by engineering a split in the BJP and BSP would have been quite daunting with their respective strengths in the assembly at 86 and 110, respectively, a series of events between July and August changed the balance of power in the state. The controversy over the Taj heritage corridor and the institution of a CBI inquiry into it by the central government brought the already strained relationship between the two alliance partners to a breaking point. On August 25, 2003, Mayawati sprang a surprise on the BJP by getting her cabinet to recommend the dissolution of the government and holding of fresh elections. The BJP on its part refused to support the recommendation for fresh elections and decided that it would not obstruct the formation of an alternative government even if it meant a government led by Mulayam Singh Yadav. Eventually, the SP came to power in UP with the support of Congress, and to Mayawati’s humiliation, 37 breakaway BSP MLAs, with Mulayam Singh as the chief minister.7 Not surprisingly, among the first decisions that the new government took, even before it proved its majority on the floor of the legislature, was to roll back on August 29, the imposition of POTA on Raja Bhaiya. Even before Mulayam Singh Yadav formally took over as the chief minister, Raja Bhaiya was transferred from Kanpur jail to the VVIP ward of the civil hospital in Lucknow, where he received a string of visitors including union agriculture minister Rajnath Singh and Amar Singh, and pledged his support to the SP.

Sent back to Kanpur jail by the POTA court, which objected to the fact that he was moving about freely in Lucknow, Raghuraj Pratap Singh was soon shifted from a solitary cell in Kanpur jail to Pratapgarh jail, where he enjoyed several facilities. The adulation and heroworship, continued. In a Kavi Sammelan organised in the jail as part of an AIDS symposium, he was exalted to the stature

of a “raja” or “king”, indomitable and unvanquished. Apart from poets, the function was attended by a cabinet minister, and top officials of the local administration including the superintendent of police, all of whom recited couplets in his praise:8 Jis baghi ko haalaat badal nahi sakte,

Us Raja ke aage koi mai ke lal nahin tikte

(None can challenge the rebel whom circumstances could not change)

Lakshya par chal pade, kabhi mat rukna Toot jana Raja par kabhi mat jhukna

(Once you set out on your goal, never stop. Raja, broken you may be but never bow to anyone)

Kuch log hain jo waqt ke sanche mein dhal gaye kuch log hain jo waqt ka sancha badal gaye (Some fade away with time, some change its course).

Supreme Court RestoresProcedures

In the meantime, with the intention of hastening the withdrawal of cases against Raja Bhaiya, on September 15, 2003, the UP government set up a high-power POTA review panel consisting of the chief secretary, the principal secretary (home) and the law secretary, to review POTA, NSA and Gangster Act cases, that were filed against him during Mayawati’s regime. What the SP government did not realise, was the fact that while the imposition could take place through an executive decision, its withdrawal was subject to the framework of legality outlined by POTA itself. Mulayam Singh’s public declaration of withdrawal was immediately followed by the instruction of the POTA court in Kanpur that any withdrawal will have to follow the procedure laid down in law, and the government will have to submit an application to the effect under Section 321 of CrPC (withdrawal from prosecution). In the meantime a petition was made in the Supreme Court by the relatives of three Pratapgarh residents who deposed as witnesses in the murder cases against Raja Bhaiya, requesting the court to declare illegal the August 29 order of the UP government withdrawing POTA charges. On December 18, 2003 the Supreme Court decided that the state government was not empowered to take a decision on a central law. The trial court could not, therefore, act on the public prosecutor’s application

Economic and Political Weekly January 7, 2006 seeking withdrawal of POTA cases. In other words, the assent of the centre became necessary for any initiation of withdrawal proceedings.

Following the Supreme Court’s directive, the state government sent the request to the home ministry for its consent. With the central government having been made party to the case, and having legally wrested the power to initiate the withdrawal of the POTA case, the war of words between the BJP and SP over their respective claims over the “thakur in prison” and through him to the rajput constituency in the state, continued. The contest assumed significance in the context of the Lok Sabha elections in which the caste/community profiles of candidates and the four major parties in the regions, viz, BJP, BSP, SP and Congress, were to play an important role. On May 17, 2004 Raja Bhaiya and his father were released on bail by the POTA court, after 19 months of incarceration. Still an accused under POTA, Raja Bhaiya was made a cabinet minister in Mulayam Singh Yadav’s government on

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    July 16, 2004. Adding this 60th member to his cabinet, Mulayam Singh made the induction appear a moral necessity, a symbol of the “victory of principles” against a dangerous law. In the ceremony to mark his induction, which was attended by thakur MLAs cutting across party lines, Raja Bhaiya, garlanded the statues of Mahatma Gandhi and Sardar Patel amidst chants by supporters of “Mahatma Gandhi Amar Rahe, Raja Bhaiya Zindabad”.9

    Independent of the show of thakur camaraderie in UP, the legal intricacies of the POTA case continued to unfold. On September 15, 2004, in its affidavit to the Supreme Court in response to the petition filed by the three witnesses in the POTA case, the central government challenged the UP government’s withdrawal of POTA case against Raja Bhaiya. It informed the Supreme Court that the state government had not sent to the union minister of home affairs “any specific proposal seeking prior permission of the central government for withdrawal of the cases against the respondent”. It, moreover, emphasised that the cases were under review before the central review committee, whose directions would be binding on both the central and state governments. The Supreme Court judgment of November 10, 2005, quashed the orders of the Mulayam Singh’s government, set aside the orders of the state POTA review committee, ordering that trial under Section 4(b) of POTA be held. Raghuraj Pratap Singh subsequently resigned from the state cabinet and surrendered to the POTA court on November 14, 2005.

    Significant about the judgment is perhaps not primarily the legal arguments surrounding the petition, but the manner in which the judges identify the tensions between the public prosecutor’s responsibility of conducting legal proceedings on behalf of the government, and on the other hand his role as “an officer of the court”. The judges decided that as an officer of the court, the public prosecutor could not act “like a post box” “on the dictate of the state government”. Similarly, the courts too were not bound by what the public

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    Economic and Political Weekly January 7, 2006

    prosecutor said and were “free to assess whether the prima facie case is made or not”. The process of extrication of an autonomous domain of law, irrespective of what the political executive dictated in “the larger interest of the state” is manifest in this delineation of the public prosecutor’s role. Moreover, the rolling back of the state government’s decision of withdrawal of POTA case, and the direction to shift the case to a special court in Madhya Pradesh is a serious indictment of the UP government

    – a trend that replicates the transfer of specific cases from Gujarat and Tamil Nadu exhibiting a growing distrust of the political contexts in which such cases unfold.

    POTA was an insidious law, reflective of a politics that sought to institutionalise exceptions in law, and free itself of the constraints of due process, political equality, burden of proof and free and reasoned assessment of possible alternatives. We have not focused exclusively on the legal points of the POTA case against Raghuraj Pratap Singh, and have also steered clear of building a case for his conviction, given the long history of criminal cases against him. What we have tried to show, however, is that for democracy to be openended, and for its deliberations to be seen as just, fair and equal, and to be accepted as binding, respect and faith in its procedures should be sustained. While POTA as an exceptional law, foreclosed the possibility of justice in and through procedures, the Supreme Court’s order may be seen as a function of restoring procedures. What is ironical, however, is that the space for restoration of procedural democracy has been squeezed out from within a law that sought to impose an increased possibility of conviction of the accused. The steps taken by the Supreme Court for dismantling the certainty of outcome is, however, welcome, not because it brings the accused back into the purview of an extraordinary law, nor because the outcome may be a preferred one, but primarily because the Supreme Court order brings back reasonable restraints on the processes of arbitrary decision-making.

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    Email: singh_roy@rediffmail.com

    Notes

    1 Judgment dated November 10, 2005 in the case S K Shukla and Others vs State of UP and Others, writ petition (CRL) Nos 132-134 of 2003.

    2 Section 4(b) of (now repealed) POTA reads as follows: “Where any person is in unauthorised possession of any bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not, he shall be guilty of terrorist act…”.

    3 On May 20, 2005, at a function organised by the Rajput Welfare Association of India to mark the birth anniversary of Maharana Pratap, several legislators of the rajput community felicitated Raja Bhaiya, who was out of prison on bail and installed in the UP government as the food and civil supplies minister, the 60th minister in Mulayam Singh Yadav’s government. These legislators equated Raja Bhaiya to the Maharana, and referred to him as the “unquestionable leader” of the thakurs in UP. “Thakur Bhaiya is Rana Pratap”, The Indian Express, May 21, 2005.

    4 The Kunda MLA, Raghuraj Pratap Singh, entered UP assembly for the first time as an independent candidate in 1991. He also won elections in 1993, 1996 and 2002. Raja Bhaiya had 32 criminal cases, including murder, attempted murder, dacoity and abduction, pending against him and was barred by the Election Commission from entering his own (Pratapgarh) constituency following complaints of torture and intimidation and violence.

    5 POTA was imposed on them on the ground that they were plotting to kill the CM on Republic day and the recovery of an AK-56 rifle and walkie-talkie sets was construed as proof of the same. See ‘Maya Slaps POTA on Raja Bhaiya, Father’, The Indian Express, Delhi, January 26, 2003, p 4.

    6 ‘POTA: BJP Caught between Maya, Manu’, The Indian Express, February 3, 2003.

    7 For details see ‘The Uttar Pradesh Drama’, Frontline, September 26, 2003.

    8 ‘Don’t Tell This to Jaya: In UP, POTA Is Poetry’, The Indian Express, October 31, 2003.

    9 ‘Meet UP Minister 60: POTA – Free, 32 Cases Down’, The Indian Express, July 17, 2004.

    Economic and Political Weekly January 7, 2006

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