Who Killed Father Stan Swamy? All Political Parties are guilty!

 

Has the blackbox of UAPA finally been opened?

Pratap Bhanu Mehta in The Indian Express

Student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha outside Tihar prison, after a court ordered their immediate release in the north-east Delhi riots "conspiracy" case, in New Delhi, Thursday, June 17, 2021. (PTI Photo)


The orders passed by Justices Siddharth Mridul and Anup J Bhambhani, granting bail to Asif Tanha, Devangana Kalita, and Natasha Narwal, have opened up the black box of the UAPA (Unlawful Activities Prevention Act) jurisprudence. The UAPA had become the black box of Indian jurisprudence for a number of reasons. First, as the orders note, the definition of “terrorism” in Section 15 of the UAPA is vague, and has been used as a licence to classify all kinds of infractions as terrorist. This order will put more spotlight on how individuals are charged under the provisions of the UAPA.

It requires that the state show why the alleged crimes or infractions should not be dealt with by laws dealing with conventional offences under the IPC or other relevant laws. It also helpfully points out that a simple law-and-order problem in a state should not be equated with a terrorist problem. By making a clear distinction that the former is a state subject, and the latter a Union subject under lists one and two, the order, potentially, also has implications for federalism in matters of law enforcement.

Second, it lays down at least a general standard for when a case might be made for being charged under the UAPA. In particular, this order insists that the allegations made against the accused must be backed up by facts, must pertain to acts undertaken by them as individuals, and must be specifically framed. This goes counter to the recent trend where sometimes chargesheets rely as much on speculation as fact, invoke circumstantial considerations about the broad political context rather than acts committed by individuals, and are framed vaguely.

Third, this order opens up the important issue of bail. The UAPA, broadly interpreted, can be a Kafkaesque law when it comes to bail. It prohibits granting bail if there are reasonable grounds for believing that the prosecution’s case might be prima facie true. The problem with this is that often the prosecution’s version was accepted without serious cross-examination. But the Supreme Court had put the defendants in an even more Catch-22 situation, by effectively prohibiting courts from engaging in a substantial examination of the merits of a case during the bail hearings. This order reiterates the fact that courts still have a lot of room to subject the government’s case to scrutiny even in bail hearings. They can examine, as this order has done, how the law has been applied, and they can even look into evidentiary questions. There is a little bit of a conceptual challenge here, though. The court rightly looked into the nature of the evidence presented by the state in this case, and effectively demolished it. Based on the considerations put forward in these orders, it is difficult to imagine another court being able to uphold the state’s case for prosecution. 

The question is, if a higher court hears a bail hearing, how can its orders be crafted in a way that does not prejudge the outcome of a full-blown trial. In this case, the charges and evidence were patently absurd. It is difficult to see how the court could have come to any other conclusion. But when higher courts hear bail hearings and grant relief based on the demolition of the prosecution’s case, what implications does it have for a full trial? This case gives a good prudential reason for the state not to oppose bail in many circumstances precisely for this reason: Opposing bail opens up the case to greater scrutiny without the context of a full trial. This is an interesting conceptual issue.

This order is also a welcome effort to prevent our civil liberties from being swallowed up by the black hole of state power. The UAPA is also a problematic law because it attacks the presumption of innocence. The Supreme Court is becoming wobbly on as fundamental a right as habeas corpus, the state is construing the expression of thought as a crime, ordinary protest is being suppressed or criminalised, bail is being routinely denied, and the state is actively targeting dissenters. In this context, the reiteration of some common sense principles is very welcome: It provides some relief and hope for constitutional wisdom to prevail. Hopefully, it will empower more judges to do their duty.

But it is premature to be optimistic about the direction of civil liberties in India. It is a matter of great relief that the trial court has finally released the accused. But prior to that, their release was delayed by a day on the grounds that their address had not been verified. If the state could not verify the address of someone they had in their custody for a year, you don’t know whether to laugh or cry. It is almost as if the authorities decided to enact a parody version of their impunity. But there is no escaping this fact. The order is an indictment of the Delhi Police and its masters in the Ministry of Home Affairs. In any civilised democracy, heads would have rolled. Instead, what we will get is an aggressive appeal by the state. We can only hope the Supreme Court will not let the cause of liberty down again.

We also know that landmark orders often have very little effect on the state or the culture of the judiciary. They sometimes work in high-profile cases. Sometimes they are a reflection of conscientious judges doing their duty as these judges seem to have done. But more often than not, they have been a flash in the pan that allow us to hold on to the illusion that the judiciary will at some point dispense justice. Will this order, by the power of its example, have an implication for the travesty of justice being enacted in the Bhima Koregaon cases, and the fate of Sudha Bharadwaj and Anand Teltumbde? Just yesterday this paper carried the story on the front page of Mohammed Ilyas and Mohammed Irfan, who were acquitted of UAPA-related charges after nine years, seven of which they spent in jail having had four bail applications turned down. It is a reminder that the pathologies of the UAPA are not specific to particular political parties, but were hardwired into the system.

This bail order has opened up the black box of UAPA jurisprudence. It is well reasoned, without histrionics, and full of constitutional common sense. But whether this order will be sufficient to wipe off the recent black marks against the judiciary remains to be seen.

India: Where does one turn when law, political parties and the state turn their back on justice?

P B Mehta in The Indian Express


Anand Teltumbde, one of India’s important and courageous thinkers, just turned 70 in prison. He, along with Sudha Bharadwaj and others, is being held in the Bhima Koregaon case. They are being repeatedly denied bail. Varavara Rao, poet and Maoist intellectual, contracted COVID and has been subject to degrading and humiliating conditions at the age of 80. The overwhelming power that the Unlawful Activities (Prevention) Act gives to the state, the sheer impunity with which government can treat this group of accused, the Kafkaesque role of the judiciary in denying bail and making procedural safeguards ineffective, and the deafening political silence on their detention, all warrant deeper reflection. The accused in the Bhima Koregaon case are not the first to be victimised in this way; and they will not be the last. The UAPA is being used to target protest from Assam to Delhi.

Anand Teltumbde’s work, particularly “Republic of Caste”, presciently forecast his own condition. He, like the others, has drawn support from the usual petition-writing crowd of intellectuals. But his case provides a disturbing window on the political loneliness of a genuine intellectual in Indian conditions.

Here is a well-known Dalit intellectual being put in prison and yet no serious political protest, even from Dalit politicians. Teltumbde had, in another context written, “When Sudhir Dhawale, a Dalit activist, was arrested in 2011 on the trumped up charge of being a Naxalite and incarcerated for nearly four years, there was hardly any protest from the community.” This phenomenon of figures like Teltumbde not drawing broader political support requires some reflection. Teltumbde himself, in part, attributed this to divisions amongst Dalits, and their greater faith in the state. But his work points towards a subtler reason.

For all of India’s handwringing, that we need to escape identity politics, there is a great antipathy to anyone who tries to escape it. Teltumbde is one of those rare figures who argued that the Left and liberals failed to take caste seriously, and caste mobilisation failed to take class and economics seriously. But the result is a kind of suspension in between two constructions: Most of society does not get outraged because he is often reduced to being a Dalit intellectual; Dalits don’t get outraged because he becomes a “Left” intellectual. The blunt truth is that, if we leave the rarefied world of petitions, the only modality of protest that is politically effective is the one that has the imprimatur of community mobilisation behind it. If you can show a community identity is affected, all hell will break loose; without it, there is no political protest.

Teltumbde was also prescient about the way the term “Left” is used in India. Teltumbde himself is closer to the Left in his economic imagination. But the rhetorical function of the “Left” in India is not to describe the contest over the free market versus the state. The rhetorical function of the “Left” is to describe any ideological or political current that, while recognising the importance of identity, wants to escape its compulsory or simplistic character; so any broadly liberal position or a position that distances itself from “my community right or wrong” also becomes Left. For Hindutva, anyone who resists or transcends the narcissisms of collective identity becomes “Left.” But the same is increasingly true of other identities — Maratha, Jat, Dalit, Rajput. “Left” is anyone who complicates identity claims. That, rather than secular versus communal, is the big chasm in Indian politics. But the result is that if you are labelled “Left” in this way, you will have no political protection.

The charge of Maoism is the hyper version of this “Left” in the context of Adivasi mobilisation. Which is why the entire political class, and so much of India’s discursive space, keeps invoking the “Left” spectre. And Teltumbde was insightful in thinking that once you had been labelled Left in India, it was easy to secure a diminution in your legal and cultural standing. Even the Courts will turn off their thinking cap. It is in this that the genuine intellectual enterprise is a lonely one, whose disastrous political consequences Teltumbde is facing.

The Bhima Koregaon cases also throw a spotlight on so many state institutions. The UAPA, and its ubiquitous use is a travesty in a liberal democracy. The lawyer, Abhinav Sekhri, has, in a recent article (“How the UAPA is perverting the Idea of Justice”, Article14.com) pointed out two basic issues with the law. The law is designed in a way that it makes the question of innocence or guilt almost irrelevant. It can, in effect, inflict punishment without guilt. The idea that people like Teltumbde or the exemplary Bharadwaj cannot even get bail underscores this point. And second, the safeguards of our criminal justice process work unevenly at the best of times. But in the case of the UAPA, the courts have often, practically, suspended serious scrutiny of the state. What legitimises this conduct of the court is two things: The broader ideological construction of the “Left” as an existential threat. And the impatience of society with procedural safeguards. The UAPA has in some senses become the judicial version of the encounter — where the suspension of the normal meaning of the rule of law is itself seen as a kind of justice.

The state has been going after Varavara Rao for his entire life. He is a complicated figure. He is an extraordinarily powerful poet who made visible the exploitative skeins of Indian society; his poetry, even in translation, cannot fail to move you out of a complacent slumber. He was formidable in consciousness raising. Of this group, his ideological excusing of horrendous Maoist excesses, has been indefensible and disturbing. His moral stance once promoted a deeply meditative critique on the morality of revolutionary violence by Apoorvanand (“‘Our’ Violence Versus ‘Their’ Violence”, Kafila.online).

But the farce that the Indian state is enacting in pursuing Varavara Rao in the Bhima Koregaon prosecutions is proving him correct in two ways. First, in his insistence that what is known as bourgeois law is a sham in its own terms; the rule of law indeed is rule by law. And second, that repression and degradation is indeed the argument of a despotic state. Where does one turn when law, political parties and the state turn their back on justice?