The moot question is whether it is possible to reconcile individual liberties and state’s interests. The bigger question would be what would be the responsibility of the courts if individual liberties and state’s interests are at loggerheads and state uses illegal means to curtail individual liberties.
The Court noted that investigation is at very crucial stage, and thus accused are not entitled to be released on bail.
Stressing the provision available to the arrestees under the Code of Criminal Procedure (CrPc), Justice Mridula Bhatkar says that the provision as contemplated by Section 167 of the Code is a “laudable provision” vindicating the right of the accused to be released after the stipulated period and an incomplete investigation beyond 90 days cannot be a ground to deny the accused bail.
Activists are being called “urban naxals” to criminalise dissent and holding a differing ideological position. RSS and the Modi government have been indulging in a nefarious game of eliminating the Dalits, Muslims and rights activists on the plea of fighting urban naxals. With Dalit resistance spilling out on the streets, the Maharashtra police has been trying to implicate activists who have stood their ground to help promote the movement for the rights for marginalised groups.
The stark difference between the majority judgment authored by Justice AM Khanwilkar and signed on by the then CJI Dipak Misra and the one written by Justice D Y Chandrachud outline how starkly divergent Supreme Court’s understanding of a complex political and legal issue that is the Bhima Koregaon arrests and the subsequent case hearing can be. While Justice Chandrachud’s judgment is a fine example of constitutional morality, the same simply be not said of the other.
The entire basis of the FIR against those arrested is that Sudhir Dhawale sang a song whose words were a call to bring down the State — he explained how these words are actually a translation of a poem in a play by Bertolt Brecht, The Good Person of Szchewan. He quoted CJI Dipak Mishra’s judgments rejecting the ban on the Malayalam novel Meesha where there SC upheld freedom of expression particularly cultural, artistic expression of a poet.
Behind this orchestrated targeting of the immigrants is the party’s need to pose as the sole saviour of the nation in the run-up to the next general election when all other parties are unwilling, in its view, to denounce the “aliens” and take effective steps against them because they are a part of the Muslim vote bank of the “secular” parties.
This piece comments on the Bhima Koregaon arrests, the multitude of problems with the UAPA as well as its empirically evident history of sinister targeting of those defending the powerless against State excesses. 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. 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 arrests of human rights activists and lawyers on August 28 and earlier on June 6, 2018 are all part of a wider theatre of Hindutva’s state-sponsored repression on those demanding democratic rights and freedoms for the most marginalised of Indian citizens. What began with Bhima-Koregaon had actually begun long back, with the atrocities against Dalits and Adivasis crossing the political threshold, such as those in Una and Saharanpur, as well as the ‘institutional murder’ of Rohith Vemula in January 2016.
'I fear that these activities of mine have angered the powerful interests within the government that they not only have foisted a case of sedition against me in Jharkhand but now have included me in a false case that links me with banned organizations at national level in order to discredit me together with other intellectuals, legal professionals and social activists raising our voices for the rights of poorest of poor people in the state of Jharkhand and all over India.'
It has been important for Governments, both the Congress-led UPA and the BJP to disguise their attacks on Adivasis, and now, in the case of the BJP, their attack on Dalits— as an attack on “Maoists” or “Naxals.” This is because, unlike in the case of Muslims who have been almost been erased from electoral arithmetic, all political parties do have an eye on those Adivasi and Dalit constituencies as potential vote banks. By arresting activists and calling them “Maoists’, the Government manages to undermine and insult Dalit aspiration by giving it another name.
Minal Gadling, the wife of advocate Surendra Gadling, on behalf of the five activists arrested on June 6, 2018 — including her husband Gadling, Professor Shoma Sen, Sudhir Dhawale, Mahesh Raut and Rona Wilson — has approached the Supreme Court seeking intervention in a petition filed by Romila Thapar and others. She has prayed for extending the benefit of Supreme Court’s order passed on August 29, 2018 in Romila Thapar case to all the above-named persons who are under arrest since last two months.