Dalit Camera: Through Un-Touchable Eyes
Dalit Camera spoke to veteran human rights lawyer Bojja Tharakam after the acquittal of all the accused in the Tsunduru massacre case in the Andhra Pradesh High Court on April 22, 2014. Very recently Bojja Tharakam, who is the Special Public Prosecutor in the case, had openly expressed lack of confidence in the the court and was charged with contempt of court. Though the charges were later dropped even though he refused to change his stance, subsequent events, like the HC's order of acquittal of all the accused, seem to confirm his earlier judgment about the court. Read the entire transcipt of the interview below the video:
Bojja Tharakam: The judgment in the Tsundur case I feel is very biased, illogical and casteist. The reasoning given by the high court is contrary to all principles of criminal jurisprudence and appreciation of evidence. The trial court which gave the first judgment had elaborately discussed the evidence, the entire evidence, and come to a conclusion which is unassailable. But unfortunately the high court, throwing all the norms and canons of justice to the winds, gave a very unscientific reasoning, which is unknown to criminal jurisprudence, and acquitted all the accused.
The reasoning according to the high court – one of the reasons is that the prosecution failed to fix the timings of the incident. At what time they received injuries was not established, according to the high court. Those are all immaterial things. We told the judge that these are all immaterial, and contradictions if any (if taken into account)..should not be trivial, should not be immaterial. Only material contradictions can be taken into consideration by the courts. But without any reference to the law, without reference to the evidence, without reference to the principles of criminal jurisprudence, the high court gave its judgment.
It wanted to give its judgment in its own way right from the beginning of the case (we heard). It wanted to acquit. That's why right from the beginning – since how long can they wait in jails.. since how long can they languish in jails.. (that was the argument). That means the high court wanted to acquit them, release them from jail, without waiting for the arguments in the court. And ultimately, as it was planned, the high court acquitted all the accused.
That's why we objected in the beginning itself, that the entire case has to be heard, including the case charged under SC/ST (Prevention of Atrocities) Act, 1989. If the case is heard in accordance with the SC/ST (Prevention of Atrocities) Act, 1989, it has to convict them under the Act. The high court did not want to convict them under the Act, therefore it separated..it wanted to separate the case (the charges under the Atrocities Act from the rest). There is nothing like separation of a criminal case. The whole case has to be heard together, with all the witnesses, with all the evidence gathered.
There can't be any separation of such cases. But it was separated, and the court heard it and acquitted them.
Dalit Camera: You were recently charged with contempt of court, you had also argued that the judge was more interested in hearing the culprits' case. Could you talk about that?
Bojja Tharakam: I said right from the beginning that the interest of the high court was to acquit, without reference to the evidence. Normally evidence has to be considered and evidence has to be appreciated, in a logical way. The high court did not want to appreciate the evidence, did not want to come to a logical conclusion. Therefore, even the advocate appearing for the appellants was not heard. He was just hurried through.. (the court said) come on.. come on..,(finish your argument).
It did not hear the version of the appellants. Then it came to us. The way in which you're hearing the appeal, raises some doubts in our minds and in the minds of the victims that we may not get justice in this court. Then the court was taken aback, and said that this is a very serious accusation against us. I said, yes, I am serious. Then he (the judge) wanted to issue a notice of contempt. I said, we are prepared to receive it. Then the notice of contempt of court was issued, not only against us, but against the victim also.
But we requested the court to release the victim from the charge because he's not connected with the whole episode. Since he's a victim, he's under pressure, he had given evidence and he wanted justice for the bereaved, for the victims. And such a person he (the judge) wanted to charge with contempt. We requested, please release him from the charge and issue contempt notices to us (the advocates), to me and my junior. He asked us to give it (the request) in writing. And we gave it in writing.
When said we had no confidence in the court, the judge asked us to give it in writing. We gave it in writing that we have no confidence in this court and this may be posted before any other bench. In spite of taking a written undertaking from us the court wanted to hear the case. When we said we have no confidence in the court, normally any court would give away the case. Post before another bench, they'll say. And it will be posted before another bench for appreciation.
But he wanted to...in spite of our repeated assertions that we have no confidence in that court, he wanted to hear the case. That shows his bent of mind. He wanted to hear the case somehow and acquit (the culprits). Because there was no other go for us, we argued before him. We told the judge specifically that subject to the conditions that we have no confidence in the court, since there is no other go for us except to argue this case before this court, we are arguing. Please note that subject to that condition we are arguing the case. He said so (that he had noted it down) and he heard the case.
At the time of finalizing the contempt (charges against us) he gave it in writing and he wanted to separate the case from the victim, but in the order he issued contempt notices against all three of us. I told the judge, I brought it to his notice that, you wanted to issue contempt (charges) only against two of us, but why have you again included the victim? He said, sorry, I'll remove him. Then, while removing he said, since you said you've no confidence in the court, that you are prepared for contempt (proceedings) too and you wanted the victim to be exempted from the contempt charges, therefore we're relieving you too from contempt of court charges. Then we argued the case.
Dalit Camera: In the initial stages of the Tsunduru case, when the case was being tried at a Dalit judge's court the upper castes had demanded that the judge be changed and the government complied, but when the Dalits complained during this hearing, the judge was not changed but you were charged with contempt of court instead.
Bojja Tharakam: Yes.
Dalit Camera: Now what is the way forward, and what do victims think?
Bojja Tharakam: Victims want to take the battle to the Supreme Court. They feel that the judgment is very atrocious. We also want to take the battle to the Supreme Court.
Dalit Camera: Now that Telangana state has been formed and the state does not have any chief minister but a governor who is not seen as very democratic – what is the way forward?
Bojja Tharakam: We request the government to file an appeal, that's the procedure. Since we've been appointed by the government as special public prosecutors we have to make a request to the government's law department to prefer appeal. If they don't prefer appeal we will file a private appeal on behalf of the victims. That can be done.
That is exactly had happened in the case of Karamchedu. In the case of Karamchedu, the trial court convicted the accused, gave life sentences to six people and some other similar sentences were handed out to the others. They went in appeal to the high court. The high court acquitted all of them, like what has happened in the Tsunduru case. All the accused were acquitted. Then we took the matter to the Supreme Court. Ultimately in the Supreme Court we got convictions. The same thing is going to be probably repeated.
Dalit Camera: How many more years will that take?
Bojja Tharakam: That we can't say. We've to wait for justice which is eluding us. We are not able to get justice. Even when we get justice, it is after twenty years, after everything is over, when the survivors are unable to enjoy the fruits of justice.
Dalit Camera: Is there any political motive behind this judgment?
Bojja Tharakam: I don't think there is any political motive; I can't say because there's a caste angle in this case. I find a caste angle in this case. We did not want to bring this matter up in the initial stage because we thought that the judges, the two judges, will not go in that line. But what was happening during the proceedings of the court made us suspect that the caste angle is coming out.
The judge is a Reddy judge; one of the presiding officers is a Reddy judge, the accused are all Reddies, influential Reddies belonging to coastal Andhra. Then we thought justice may not be done but we put confidence in the court, looking at the gravity of the case. In such a case where there is abundance of evidence, no judge can do any harm to the case (we thought). Enormous evidence is there, law is on our side, but the judges are not on our side. He's on the side of the upper caste people.
Therefore we've to wait, we've to fight. We've to continue to fight in the Supreme Court. We expect the Supreme Court will do justice. We cannot say that with certainty now, but we hope justice will be done as it was done in the Karamchedu case.
Dalit Camera: Now, the judgment was given by the High Court on the appeal made by both the parties. There was a bench formed to hear these appeals from the culprits and the victims. So they heard both the appeals and passed the judgment..
Bojja Tharakam: No, the appeal from the victims' side has not been heard till now. That appeal is still pending.
Dalit Camera: The appeal is pending?
Bojja Tharakam: Yes, it is pending. And it was numbered and they said it will be heard. But the appeals filed by the convicted persons, those appeals were first heard. We objected, saying you cannot separate the appeals like this because they refer to the same transaction and you've to hear the same evidence. So you've to hear both appeals together. But they were separated.
Dalit Camera: The victims' appeal made the point that that case was filed under SC/ST (Prevention of Atrocities) Act, the police registered the case under the SC/ST (Prevention of Atrocities) Act and the charges were also framed under the SC/ST (Prevention of Atrocities) Act..
Bojja Tharakam: Yes, evidence was read in, finding was there, conviction was there, but sentence was not there..
Dalit Camera: Sentence was not based on SC/ST (Prevention of Atrocities) Act? So that is why the appeal was filed?
Bojja Tharakam: Yes. That appeal is pending against all the accused persons. Those who were acquitted earlier and those who have been acquitted now. Around 213 people are there. So this appeal under SC/ST (Prevention of Atrocities) Act is against all.
Dalit Camera: Ok. So that has not been heard yet?
Bojja Tharakam: No.
Dalit Camera: When are they going to hear it sir? When they release everyone?
Bojja Tharakam: We will make a request.
Dalit Camera: Thank you sir.
Bojja Tharakam: See, we can't help it. The whole system is in their hands, including the judicial system. They form their own benches, they make their own judges, they come to their own conclusions without any reference to the law, justice, principles of equity. Nothing is sacred.
Please also read other related articles on the issue:
Brahmanical Courts and the Death of Justice: by N. Sukumar and Shailaja Menon
Tsunduru says: 'You just fight back': by Unnamati Syama Sundar