Dissent as treason

By Mukul Kesavan

The arrests of Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves and Varavara Rao for their alleged complicity in both the violence that followed the bicentenary celebrations of the battle of Bhima-Koregaon and a conspiracy to overthrow India’s constituted government (including a ‘Rajiv Gandhi-type’ assassination) are an undisguised attempt to reduce India to a police State under formally democratic auspices.
The man who made these charges is Parambir Singh, Maharashtra’s additional director-general of police. His policemen simultaneously arrested these five activists in Haryana, in Delhi, in Tamil Nadu and Maharashtra in coordinated raids with the intention of transporting them to Pune under the Unlawful Activities (Prevention) Act, which allows the police to hold the citizens of this republic for up to six months in custody without bringing charges. To appreciate the enormity of the rights violation here, remember that Arun Ferreira was arrested as a Naxalite in 2007 and spent years in jail before being acquitted of all the charges the State had levelled against him.
The UAPA, a preventive detention law, has been amended several times mainly to incorporate within it every clause of defunct draconian laws such as POTA. The law basically says that if you are a member of an unlawful or terrorist organization (defined as any organization that questions the territorial integrity of India) you can be arrested, denied bail, and, if found guilty, be punished by life imprisonment.
Not only is the characterization of an unlawful organization dangerously broad, what constitutes ‘membership’ of such an organization is left completely undefined. The legal scholar, Gautam Bhatia, has pointed out that the police routinely use the possession of books or pamphlets published by proscribed parties and activist groups as evidence of active membership and violent conspiracy.
In the course of a judgment on a UAPA case, Justice Thipsay of the Bombay High Court observed that he had no “… doubt that passive membership was not what is contemplated by section 20 of the UAP Act. It is very clear from the observations made by the Supreme Court that if section 20 were to be interpreted in that manner, it would at once be considered as violative of the provisions of section 19 of the Constitution of India [dealing with fundamental rights], and would be struck down as ultra vires. In fact, Their Lordships of the Supreme Court of India have interpreted the concept of membership as an active membership to save the relevant provision from being declared as unconstitutional.”
Effectively, then, the higher courts have avoided striking UAPA down as unconstitutional by trying to interpret its clauses as narrowly as possible. Except that the intention of the framers, contrary to judicial attempts to make the law constitutionally respectable, was to give the police a free hand with ‘bad elements’ precisely by nullifying their fundamental rights. So despite this attempt to put lipstick on a pig, the police, with the blessings of their political masters, have continued to use UAPA as a blunt instrument and the judiciary has been generally happy to go along.
Thus, the chief judicial magistrate of Faridabad and the chief metropolitan magistrate of Delhi promptly granted the Maharashtra police transit remand for Sudha Bharadwaj and Gautam Navlakha. Given that arrest under UAPA could mean months if not years in jail without trial, you would expect that a conscientious magistrate would scrutinize the police’s application for such remand with care. Not a bit of it: Justice Muralidhar of the Delhi High Court criticized the chief metropolitan magistrate for not even reading the Maharashtra police’s paper work (which was in Marathi) before granting remand.
The intervention of the high courts of Delhi and Punjab and Haryana and, then, the decision of the Supreme Court to hear the petition lodged by Romila Thapar and others stayed the bid by the police to move their targets to Maharashtra, but this was a very partial victory.
First, instead of staying the arrests till the police’s charges were translated and scrutinized, all five were placed under house arrest. This is better than being consigned to a jail in Pune, but it is still a form of pre-emptive detention.
Secondly, the only reason the transit remands were stayed was because the people arrested were well-known figures with metropolitan lawyers quick to act on their behalf. Uncounted numbers of more obscure activists are arrested under laws like the UAPA and left in limbo in police custody, judicially unaccounted for. Recall that there was an earlier round of arrests after the violence in Bhima-Koregaon where Sudhir Dhawale, Surendra Gadling, Mahesh Raut, Shoma Sen and Rona Wilson were arrested in similar multi-state police raids.
And thirdly, the Indian judiciary, especially its apex court, is better at defending broad principles in the abstract than ruling in concrete cases where those principles are at stake. A case in point is the contrast between its resonant ruling on privacy as a right and its procrastination in the Hadiya case where the autonomy and privacy of an adult woman had been shredded by a high court judgment that annulled her marriage on no legal basis whatsoever. The Supreme Court was complicit for under a year in the infantilization of Hadiya despite the fact that the benches that made the privacy judgment and examined her right to marry the man of her choice overlapped.
Justice Chandrachud’s assertion in court that dissent was democracy’s safety valve is admirable but the interim order he was party to made no reference to this lofty idea; these orders placed these five dissenters under house arrest and sealed off that vaunted safety valve, giving ADG Parambir Singh and his men, not dissenting citizens, the benefit of the doubt.
The arrests in the wake of Bhima-Koregaon are the acts of a vindictive and partisan NDA government determined to spin Dalit assertion in the face of Hindutva violence (such as the appalling beatings of Dalits in Una and the violence orchestrated by upper-caste Marathas in Bhima-Koregaon during the bicentenary) as the work of shadowy ‘anti-nationals’. The integrity of the people that the Maharashtra police has targeted under the UAPA is a measure of the cynicism of its masters. When a ruling party uses emergency laws to stigmatize principled opposition as treasonous conspiracy, it is stoking paranoia for political ends.
This is the politics of the midnight knock, and it is a time for solidarity. Each of us (as the poet almost said) is a part of the (sub) continent, a part of the main. Thirumurugan Gandhi, Sudha Bharadwaj, Arun Ferreira and countless others are better and braver than most of us can hope to be, but in one crucial way, as free citizens of a constituted republic, they are us and we are them.