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- Special issues
[dropcap]D[/dropcap]espite years of peaceful commemoration, this new year began with the saffron brigade's violent attacks on people, mostly Dalits gathered at Bhima Koregaon to celebrate the 200th anniversary of the victory of the Dalit Mahar troops dominated British Army over the Peshwas in Maharashtra. This commemoration is an act of rebellion itself against the normative caste system perpetuated by scriptures like the Manusmriti which systematically denied any force, offensive or defensive, to the Dalits, Shudras or Ati-Shudras.
Activist Sudhir Dhawale recalled that these celebrations had occurred peacefully ever since Dr Babasaheb Ambedkar's visit to the war memorial on January 1, 1918, on the banks of the Bhima river, at Koregaon. Hence, overlooking the context of immense Peshwa oppression of the Dalits in Maharashtra and considering a unidimensional perspective of a certain notorious brand of 'nationalism' essentialises a complex reclamation of identity. In a convenient and typical modus operandi of using the law as a political tool to stifle any dissent, the Unlawful Activities (Prevention) Amendment Act, 1967 (UAPA) is being used to criminalise human rights defenders, those fighting for the rights of minorities, asking uncomfortable questions about the corporate-government nexus and speaking truth to power. The Leaflet previously covered the arrests here.
The violence unleashed by goons masquerading as self-styled guardians of the nation resulted in the death of two persons and damage to about 40 vehicles. Bharatiya Republican Party Bahujan Mahasangh president — Prakash Ambedkar — had called for a state-wide bandh to protest the violent clashes with Dalits in villages around Bhima Koregaon leading to an almost complete shutdown in Mumbai, Pune and some other towns in Maharashtra. The bandh was withdrawn at 5 pm on January 3, 2018.
A programme, 'Elgaar Parishad' was organised at Shaniwar Wada where Jignesh Mewani, an independent Dalit MLA from Gujarat, the late Rohith Vemula's mother, Radhika Vemula and JNU student leader Umar Khalid were invited to address a gathering of more than 200 organisations — including Kabir Kala Manch, Sambhaji Brigade, Muslim Mulnivasi Sangh, Rashtra Seva Dal, etc. This event was organised with the permission of the Pune Municipal Corporation (PMC) and the Pune Police, even as multiple right-wing outfits like the Akhil Bhartiya Brahman Mahasabha, Rashtriya Ekatmata Rashtra Abhiyan, Hindu Aghadi and the descendants of the Peshwas deplored the governmental permission for such an event to take place.
The Pune Police spearheaded a joint operation and arrested five activists on June 6, 2018 —Surendra Gadling, prominent lawyer for political prisoners; Shoma Sen, Professor of English at Nagpur University, whose husband was arrested and subsequently acquitted for links with Naxals; Sudhir Dhawale, Marathi poet and editor of Mumbai-based Vidrohi magazine; New Delhi-based Rona Wilson of a civil rights group called the Committee for Release of Political Prisoners (CRPP); and Mahesh Raut, an anti-displacement activist. They were branded as "Urban Maoists/Urban Naxals" by the Maharashtra Police for allegedly using Maoist funds for Dalit agitations and making incendiary speeches which led to the Bhima Koregaon violence.
Two months later, more human rights activists, academics, lawyers and journalists have been arrested after their residences were raided on August 28 — including Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves, and Varavara Rao — in the multi-city raid conducted by Pune Police.
The Terrorist and Disruptive Activities (Prevention) Act 1985 [TADA] lapsed due to a sunset clause in 1995 and the Prevention of Terrorism Act 2002 (POTA) was repealed in 2004 post widespread criticism within and outside the country for enabling grave human rights abuses by government forces under the façade of counterterrorism operations, entailing arbitrary arrests, torture, extrajudicial killings and forced disappearances. The UAPA as it stands today, after amendments in 2004, 2008 and 2012, brought back most of the repealed stringent provisions of POTA effectively packaging old wine in a new bottle.
The draconian provisions of the UAPA, be it the vague and over-inclusive definition of terrorism, membership of organisations, reversal of burden of proof, near impossibility to get bail, extension of period of detention etc. and their rampant misuse have been written about widely. Section 2 (ec)(vi) defines person broadly enough to include "an association of persons or a body of individuals, whether incorporated or not" allowing for creation of persons beyond those recognised by law permitting the imputation of guilt by mere association. As per section 43D(5) of the Act, courts cannot grant bail to a person if "on a perusal of the case diary or the [police] report … [the court] is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true", thus allowing indefinite imprisonment without trial. The requirement of government sanction prior to prosecution further concentrates power in the state and is reduced to a convenient administrative step when the state crushes dissent or sabotages peasantry, economic or political struggles by cracking the whip on their leaders.
What is quite the cherry on the top is the brazen immunity with which the law can be misused given that Section 58 of the POTA pertaining to punishment and compensation for malicious action was excluded from the UAPA. Jamia Teachers' Solidarity Association had pointed out post the 2012, amendments in the UAPA, rushed through the Parliament without adequate public debate or scrutiny, that counterterrorism measures should not be a veneer for state terrorism and "in delivering justice, laws cannot rest on assurances (against misuse)".
It is a known practice to use terror laws even when comparable provisions are available under the Indian Penal Code (IPC) for the same offence in order to afford greater leverage and impunity to the police and its agencies due to stricter bail provisions and longer periods for authorised detention. The charges against Sen, Gadling, Dhawale, Wilson and Raut have been levelled for commission of offences punishable under Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the UAPA. The original FIR had only named Dhawale and contained charges only under Sections 153A and 505 of the IPC for promoting enmity between communities.
Their authorship and contents still suspect, the clinching proof of these allegations are dramatic and unverified "incriminating letters" naively addressed to "Comrades" with their full names and laced with bizarrely unconnected details coincidentally providing a basis to the UAPA charges slapped. The letters are drafted too obviously sans any coding in stark distinction with Maoist correspondences and their veracity has been seriously questioned by two former IPS officers with experience of extra-judicial killings and anti-insurgency operations, former Jharkhand DGP GS Rathore and former Gujarat additional DGP (Intelligence) RB Sreekumar.
The criminalisation is not of an incitement to violence disrupting law and order, but the celebration of an ideology directly at loggerheads with what is espoused by the current political dispensation, as noted by Arun Ferreira and Vernon Gonsalves — both victims of the UAPA. "UAPA criminalises ideology and association. By virtue of declaring an organisation 'unlawful' or/and 'terrorist' and banning them, it criminalises their ideologies de facto" and verily creates a regime of thought crimes. Given the causes these activists have dedicated their lives to such as rights of Dalits and Adivasis, they may have links to Naxals. However, it does not spell out their membership of a terrorist organisation, much less the commission of any terrorist act. A disturbing pattern of targeting those working for the rights of minorities subscribing to ideologies at variance with that of the dominant state brass emerges if one were to look at those who were detained for years under the UAPA. The mere possession of literature by or associated with an organisation considered "terrorist" or belief in a common ideology as that of the organisation or membership of such an organisation is sufficient to constitute an offence even without any act of violence.
The original complaints for instigating violence against Maharashtra government's nominee for the Padma Shri Sambhaji Bhide of Shiv Pratisthan and Milind Ekbote of Hindu Ekta Aghadi have been unsurprisingly dropped by the police while the counter complaints against Dalit leader and Gujarat MLA Jignesh Mevani and JNU student Umar Khalid have been pursued rather doggedly. FIRs had been registered against the right-wing leaders Milind Ekbote and Sambhaji Bhide 'Guruji' by the Pune Rural Police under the SC/ST Prevention of Atrocities Act and sections of the IPC, including attempt to murder for involvement in the caste clashes. Ekbote has been booked in 36 cases since 1990, ranging from rioting, inciting violence to breach of preventive orders under the Maharashtra Police Act as late as 2013.
Yet, instead of Bhide and Ekbote, the activists arrested in two phases have denied the allegations against them as baseless and cried foul of the state ploy to shield the right-wing leaders who incited the violence. Harshali Potdar of Samata Vidyarthee Aghadi, co-organiser of Elgaar Parishad, said that the event's organising committee broadly comprised over 200 organisations, none of which were banned, that raised funds collectively. Jyoti Jagtap, member of Kabir Kala Manch (KKM) noted that KKM members had sung the songs cited in the FIR for a long time at various platforms without inviting any case against them. This turn of events seems to breathe life into the Gramsci, Machiaveli, Chomsky and Foucault that we read on the relationship between the State-Media-Corporate alliance against the dissenting citizen and brings into stark relief Chaintanye Tamhane's Court depicting a performer's tragic ordeal with the criminal justice system upon being slapped with absolutely ridiculous UAPA charges.
The government's defence for strengthening the UAPA via the 2012 amendments was hinged on its membership of the Financial Action Task Force (FATF) and pursuant obligations to set global standards against money laundering and terror financing overlooking the obvious primacy of fundamental rights guaranteed by the Indian Constitution which the UAPA treads roughshod over. Perhaps it would be important to also afford due weightage to other international obligations, for instance the International Covenant on Civil and Political Rights (ICCPR), to which India is a party and which lays down fundamental due process and fair trial protections to be applicable at all times, including states of emergency or the UNSC Resolution 1456 which confirms, "States must ensure that any measure taken to combat terrorism must comply with all their obligations under international law … in particular international human rights, refugee and humanitarian law."
When an aberration of the law i.e. its misuse by an official agency of the state like the police becomes routine enough to subvert the rule, it no longer remains a question of individual misinterpretation or misapplication but perhaps signals a high time to repeal such a law altogether. According to a feature by Media Collective, detention under the UAPA leads to acquittals in 72.2% of the cases as per the government's own statistics but the personal liberty, rights and dignity of people detained without safeguards for decades is lost in the bargain. The UAPA has no provision for periodic review as the sunset clause under TADA was scrapped after the 2004 amendment to the UAPA. As legal scholar Gautam Bhatia notes, the UAPA indeed makes "anti-terror law permanent" and thus in another way creates a rule out of an exception. It allows extraordinary restrictions of fundamental rights sans any extraordinary situation of a terrorist threat and can only be repealed by a mass movement in the absence of a sunset clause.
The UAPA is ineffective as there is no proof of either a greater conviction rate under tougher terrorism laws or more deterrence in terms of fewer offences but well documented evidence of gross misuse. Experience across the world highlights that counterterrorism laws violative of basic human rights radicalise and alienate communities making them a breeding tool for militant groups.
The overwhelming implications of the vivid and poetic abstraction of Navtej Johar and NALSA judgments of the Supreme Court of India must translate to improve the lived experiences of persons subject to the repercussions of unconstitutional disciplining. We must latch on to and concretise the amorphous yet complex and nuanced possibilities opened up by Johar to realise our co-extensive rights as complete citizens.
Finally, the convenience and impunity of the State slapping such charges has transgressed the purely academic realm and hit very close to home this time around. Lawyer and national secretary of the People's Union for Civil Liberties (PUCL) Sudha Bharadwaj was arrested on August 28. Bharadwaj had previously been compelled to send a legal notice to Republic TV and its editor-in-chief/main anchor Arnab Goswami for making deeply malicious and defamatory statements against her, which alleged she had links with Maoists and Kashmiri separatists. Republic TV had carried out an extensive smear campaign against Bharadwaj when they dangled yet another "incriminating letter", akin to the ones aforementioned which had led to the arrest of the five activists on June 6, something Bharadwaj has vehemently denied, while also sending a legal notice to the channel. Quite evidently, it would seem that Republic TV is working as an "ideological state apparatus" (to quote Louis Althusser) in order to malign the image and work of someone who has vehemently opposed the Bhima Koregaon arrests, or at the very least, State complicity in enabling an environment where purely private actors, if we were to assume, have the gall to make such infuriating and baseless statements without the fear of adverse consequences.
While integrity of someone like Sudha Bhardwaj can't really be measured, what I write is only to testify to the lucidity, sincerity, and impartiality with which she taught my batchmates and me as a Visiting Professor at National Law University, Delhi, becoming a unanimous favourite of the student community in no time. In a nationwide ecosystem where pedagogy is increasingly entwined with propaganda and more often than not reeks of the binary of reckless indifference or stern adherence to dogma, I have had the rare privilege of being taught by someone like Bharadwaj who was every bit invested in and passionate about her subject and yet fair enough to acknowledge any opposing views and respond to them with the utmost respect. It was astonishing that despite having worked for union workers' rights for three decades, she resisted all temptation (if any at all) to outrightly dismiss any doubts regarding, for instance, the possibility of corruption among union workers, or workers slacking off. With an absolutely balanced pedagogy, we learnt slowly that an opinion, no matter how illogical, would always be engaged with and only refuted by the logic of the letter and spirit of the law. Bharadwaj brought to the classroom a spectacular understanding of theory and praxis when it came to delivering our course on law and poverty, spanning rights of adivasis, contract workers, bonded labour and land acquisition.
She was always a remarkably kind and accommodative teacher and I remember quickly rescheduling with her once upon being utterly embarrassed to learn that she had agreed to come all the way from Ghaziabad to Dwarka on one of her non-working days at my request for our project consultations. She is a living inspiration to all of us and one who does more than complete justice to the "pedestalising" of the "noble profession" that is teaching. With her disarming smile and fast delivery, it always felt that she had so much more to tell us than the course prescribed or could be packed in one teaching lecture and understandably so. In a despairing, cynical, loud and whining world, there are few teachers we look up to and remember as a vestige of hope for the lost inspiration and purpose in our lives. Sudha ma'am is one of them. Given the current political climate and existence of laws like the UAPA, all I can manage as a spectator is to lament that the propaganda and defamation against her is the most manifestly arbitrary and unjust of things to happen to someone who has worked so relentlessly for a selfless cause.
