Prof Ujjwal K Chowdhury
“Dissent is the safety valve of democracy. If you don’t allow the safety valve, pressure cooker will burst,” said the five-judge bench led by the Chief Justice of India Dipak Misra, while ordering that the recently arrested left-oriented activists be kept under house arrest till September 6, and a response be given by the Maharashtra government to the petition of citizens against their arrest by the Pune Police.
“Arrests should surely be of those who actually spread terror in society through assassination and lynching, and not of those who work for human rights – the rights that are essential to citizenship and democracy. Are these arrests a demonstration to show that the democratic rights of the Indian citizen have been annulled?” asked historian Romila Thapar, one of the petitioners. This, in my opinion, is setting the tone of a new mass movement in India, and this time to save democracy and its safety valve.
Emergency to Lokpal to Save Democracy
There was the huge anti dictatorship movement led by Jaiprakash Narayan against Indira regime that led to Emergency being declared, 19 black months of which in 1975-76 then led to the elections of March 1977 which threw away the government of Indira Gandhi.
Then there was the anti corruption movement led by Anna Hazare against UPA II regime that led to Lokpal Bill being passed, opposition led by BJP gaining ground, AAP as a party was born and later came to power in Delhi, and Modi led BJP had thereafter come to power since 2014. There is a discontent brewing now. Once again India is at a crossroads. The time is ripe once again for a civil society led save democracy save constitution movement in India against the spate of anti democratic measures in the country.
The latest in the series is the arrest of recognized human rights, Dalits and tribal rights activists, writers and journalists across India on grounds of Maoist links, which at least two courts prima facie do not find very substantial.
Arrest of Rights Activists and Writers
Following multiple raids across five states, police have arrested several activists including Varavara Rao, Gautam Navlakha, Sudha Bhardwaj and her daughter Anu Bhardwaj, activists Vernon Gonsalves and Arun Fareira for their suspected Maoist links, under the stringent Unlawful Activities (Prevention) Act. The raids were conducted at eight locations in Maharashtra, Goa, Telangana, Delhi and Jharkhand.
They were also booked under IPC sections 153-A (promoting disharmony, enmity between groups), 505 (inciting class, community of persons to commit any offence against any other class or community), 117 (abetting commission of offence by the public or by more than ten persons) and 120-B (criminal conspiracy).
They include Gautam Navlakha, a civil liberties and human rights activist, actively involved with the People’s Union for Democratic Rights as an activist, and also writes for the Economic and Political Weekly.
Poet Varavara Rao heads “Veerasam” – an association of revolutionary writers, and is of 80 years of age. Human Rights activist and lawyer Sudha Bhardawaj is best known for her work in Chhattisgarh, where she has lived for 29 years and fought for the rights of mine workers in Bhilai. A civil rights activist and lawyer, Bharadwaj has also been fighting against land acquisition, and is currently the general secretary of the Chhattisgarh People’s Union for Civil Liberties (PUCL).
The nationwide crackdown on activists, advocates and human rights defenders is disturbing and threatens core human-rights values, Amnesty International India and Oxfam India said in a joint statement, and there has been widespread criticism in several international media.
Delhi High Court first restrained Pune Police from taking Navlakha out of Delhi and then Punjab & Haryana High Court restrained Pune Police from taking Bhardwaj out of Delhi. This was followed by Supreme Court’s intervention.
Interestingly, earlier, Lawyer Surendra Gadling successfully defending his tribal clients under the UAPA was arrested and thrown behind bars on 6 June of this year. Now, lawyer Susan Abraham defending Gadling in Pune saw her house in Mumbai be raided and her husband Vernon Gonsalves arrested.
The rules on professional standards laid down by the Bar Council note that lawyers “shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.”
By targeting lawyers who take this guideline seriously, the police are effectively saying that they do not recognise those who fight cases against them as professionals but as fair game. The aim is to intimidate other lawyers so that they will be reluctant to take up sensitive or controversial cases.
‘Urban Naxal’ or #UrbanNaxals has long been the favoured tinted abuse of Sangh Parivar social media operators, first deployed on Delhi Chief Minister Arvind Kejriwal and then put to a much wider use against a range of intellectuals, media-persons and others perceived to be unaccommodating toward the BJP-Rashtriya Swayamsevak Sangh agenda.
Arundhati Roy and Barkha Dutt, Prashant Bhushan and Rajdeep Sardesai, Shekhar Gupta and several others have been at the receiving end of such branding.
In Maharashtra, this appeared as the ruling regime’s response to the rise of an anti-BJP multi-caste alliance around the commemoration of the 200th anniversary of the battle of Bhima-Koregaon that vanquished Brahminical Peshwa rule.
The Sangh’s opening gambit of organising violent attacks by saffron flag-wielding upper caste mobs on the predominantly Dalit congregation at Bhima-Koregaon failed to result in the widespread caste riots and polarisation that it desired. It in fact backfired and only led to an expansion and consolidation of the opposition, with state-wide protests and a bandh and a demand for the punishment of Hindutva organisation leaders, Sambhaji Bhide and Milind Ekbote, who had been named in the First Information Report.
But, later, Urban Naxal, a term, hitherto the staple of right-wing trolls, became mainstream. It appeared on official police Twitter handles and at high-level police press conferences, prime time debates and print media headlines. Its use spread. Petty trollery rapidly grew to petty tyranny of government functionaries in a number of states, who resorted to the #UrbanNaxal tag to justify the threat of, or the actual application of draconian provisions like sedition or the Goondas Act or UAPA.
BJP MP Poonam Mahajan claimed that the March 2018 ‘Kisan Long March’ to Mumbai was propelled by ‘Urban Maoists’ whereas it was led by All India Kisan Sabha and was an extremely peaceful demonstration. Bastar police arrested a Bangalore-based unarmed critical blogger and tweeted that they had got an Urban Naxal. Union Minister from Tamil Nadu Pon Radhakrishnan provided the ‘Urban Maoist’ justification for the arrest of an advocate for the agitation against Sterlite’s polluting copper plant in Thoothukudi.
As former additional solicitor general Indira Jaising rightly pointed out on a prime-time programme, “The word ‘urban naxal’ does not exist anywhere in law. It is something only coined by the BJP.’ State agencies using the ‘Urban Naxal’ terminology do not seem to need any definition in law for the labelling, implicating and arresting they have done so far”.
What the Law says?
This easy branding and incrimination are made possible by the arbitrary wording of UAPA, which outlaws thought and criminalises association, merely by a notification of the State proscribing a particular organisation. Such lawmaking obviously runs counter to the very essence of democracy and Constitutional rights.
This doctrine of ‘guilt by association’ has been unequivocally rejected by the Supreme Court. The apex court has ruled, ‘the provisions in various statutes i.e. 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution.
It has explicitly held, ‘mere membership of a banned organisation cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence.’
It has to be noted here that Binayak Sen and Kobid Ghandy were acquitted by the Courts after years of being arrested on grounds of mere membership of banned organisation or ‘guilt by association.’
Following the lead of the top court, the Kerala high court has defined the Constitutional position more explicitly, ‘Being a Maoist is no crime… Police cannot detain a person merely because he is a Maoist, unless police forms a reasonable opinion that his activities are unlawful.’
Thus, the category of crime and criminals called Maoist or Naxal or #UrbanNaxals is an illegitimate creation of right-wing propaganda and media frenzy. It is a fiction repugnant to the Constitution and law of the land. Its creation is merely to raise an alternative right-wing narrative on the face of the failure of the development plank of the rulers today. Only a major civil society movement against the attacks on independent critical voices, and against the failures of the government on the economic front can work towards protecting democracy in India.
(The author is School Head, School of Media, Pearl Academy, Delhi and Mumbai campuses. He has been earlier the Dean of Symbiosis and Amity Universities, and of Whistling Woods School of Communication.)