Updated: Nov 23, 2020
This talk was delivered as part of the 5th annual History for Peace conference, The Idea of the Indian Constitution in July 2019.
After the very cogent and eloquent presentation by Prof. Thapar, mine may be a little scattered. I will string a few ideas together. We are grappling with a new political reality. Our relationship as citizens, with the state, is being altered as we speak. What is this new equation going to be? What roles will different institutions play? Institutions are changing, even mutating, not necessarily in the same manner or at the same pace, but there are early warning signs.
I will confine myself to looking at Courts. As Professor Thapar mentioned, this session can be called, ‘From Romesh Thapar to Romila Thapar’, and perhaps the issues raised then and now have not changed much. The Romesh Thapar case, in 1950, challenged the restrictions imposed by the state on media, which resulted in the suppression of ideas and opinions expressed through publication. The writ petition filed by Romila Thapar and four other eminent citizens in 2018, before the Supreme Court, questioned the State’s arrest and prosecution of activists, who through their work, writings, and activism challenged violations by the State. The silencing of voices articulating ideas—dissenting and diverse—by the state, lay at the heart of both litigations.
As mentioned by Professor Thapar, a new vocabulary has gained currency, and this is not just in the public sphere, whether on television or social media, but is also uttered and legitimised by Ministers in Parliament. Terms like ‘urban naxal’ or ‘anti national’, are deployed to cast a dark shadow of criminality and condemn persons disagreeing with the regime and project them as enemies of the nation. It’s alarming that such phrases are even being invoked during arguments in court, as though they represent a legal category.
Over the last two days, there have been discussions on the Constituent Assembly Debates, on the impulses of the Constitution, on the Preamble, etc. It’s interesting that the Elgar Parishad was organized by a committee led by former Supreme Court judge, Justice P.B. Sawant, and a former High Court judge, Justice Kolse Patil, to commemorate the 200th anniversary of the battle of Bhima Koregaon. The Elgar Parishad articulates a contestation of ideas and identities, a theme which runs through the Constituent Assembly debates. The commemoration event marked this contestation, to celebrate the defeat of the Peshwas by the colonial British army, with predominantly Mahar Dalits, in battle in 1818. The commemoration of this victory over Peshwas by the Dalit community is an important comment on the trajectory of Dalit struggle, and speaks to the pluralism of historical narratives and formation of identities. This contestation continues to be a part of our polity. The attempt to criminalize such contestations too, can be traced back to the debates of the Constituent Assembly. Let me read out the pledge that was taken at the Elgar Parishad on 31st December 2017:
'Today on the occasion of Shaurya Divas (Victory Day) in Bhima Koregaon, on the 200th anniversary, we pledge that we will protect the Constitution and Democracy. We will not support those organizations who speak against the Constitution or oppose the Constitution. We will never vote for the opponents of the Constitution—the RSS and the BJP.'
In tandem with the trend of coining new categories, narratives, whether substantiated or not, in Courts too we witness a novel approach to interpreting facts and appreciating evidence. When the Romila Thapar case was being argued in the Supreme Court, the State claimed that the Marathi word ‘Yalgar’ means ‘to attack’ and thus ‘Elgar Parishad’ should be read as ‘Yalgar Parishad’ and was a call to violence. Despite clarifications that ‘Elgar’ as distinct from ‘Yalgar’, denotes a clarion call, the malicious projection of an event, which sought to reaffirm and renew the constitutional pledge, as a call to armed rebellion continued unabated.
Let me outline for you the chronology of the facts of the Elgar Parishad case, which has already led to the arrest of 9 prominent activists. The Elgar Parishad was organised on 31st December 2017, in Shaniwada in Pune. Violence broke out in Bhima Koregaon and surrounding areas, from 1st January 2018 onwards. Hundreds of Dalits were arrested. On 4th January 2018 an F.I.R was lodged by a Dalit woman, Anita Savale, against persons who are alleged to be connected to Hindu extremist groups for inciting attacks against the Dalit community. On 8th January 2018 another F.I.R was lodged by one Tushar Damgude alleging that a poem recited at the Elgar Parishad event on 31st December, 2017, had incited the violence. The police response to these two FIRs lays bare the machinations of the state.
A poem was in fact recited at the Elgar Parishad. It is a Hindi-Marathi translation of a verse from Bertolt Brecht’s 1943 play The Good Person of Szechwan. The verse reads,
Your brother is assaulted and you shut your eyes!
He is hit and cries aloud and you are silent?
The beast prowls, chooses his victim, and you say:
He’s spared us because we do not show displeasure.
What sort of a city is this? What sort of people
When injustice is done there should be revolt
in the city.
And if there is no revolt, it were better that the
city should perish in fire before night falls![i]
In this FIR, which forms the edifice of the ongoing investigation, arrests and prosecution, it is claimed that this poem was a call for violence. In Brecht’s play, these lines are recited by the protagonist, a woman prostitute, imploring people to not remain silent in the face of injustice. It is ironic, for in the play, responding to the cries of the woman, the Gods descend on earth in the form of Judges and rescue the person being ostracized from attack.
The other FIR relating to Bhima Koregaon lodged by Anita Savale names two people, Milind Ekbote and Sambhaji Bhide, as having instigated the mob to riot. While Sambhaji Bhide was never arrested, Milind Ekbote was arrested and released on bail. Also the F.I.R relating to the widespread attack and vandalism against Dalits was registered under provisions of the Indian Penal Code, while the F.I.R against the Elgar Parishad programme invokes sections of the UAPA, the anti terror law.
The echoes of the diverse viewpoints in the Constituent Assembly debates resonate even today in the Bhima Koregaon judgements, between the majority judgement of Chief Justice Deepak Misra and J.A.M. Khanwilkar and the dissenting minority judgment of Justice D.Y. Chandrachud.
The Constitution can be read as a technical rule book rather than a dynamic text encoding the philosophical values of liberty, democracy and freedom. Judges sitting on a Bench, hearing the petition in the Bhima Koregaon case, adopted different pathways, demonstrating the continuing relevance of the tensions during the Constituent Assembly debates.
I will now read some sections from Justice Chandrachud’s minority judgement to show how the Constitution can be interpreted in a way that remains true to the promise of the Preamble.
Justice Chandrachud in his minority judgment says:
The intersection between criminal law and constitutional rights has led to the evolution of judicial precedent which originates in this court. Our recent decisions reiterate the value of individual dignity as an essential principle in the democratic way of life. But lofty edicts and judicial pronouncements can have no meaning for a citizen unless the constitutional quest for human liberty translates into securing justice for individuals whose freedom is under threat in specific cases. The role of the court involves particularly sensitive balances when the state seeks to curb freedom to investigate perceived breaches involving offences against the state. Custodial interrogation involves the balancing of diverse and often conflicting values. The effective administration of criminal justice and impartial process of investigation and the liberty and reputation of the individual, the invocation of our jurisdiction under Article 32 in this case is founded on the grievance that a group of five human rights activists is sought to be persecuted for espousing the cause of the marginalized which is considered to be unpopular. Conscious as the court is of the public interest in the effective administration of criminal justice, it cannot be oblivious to the overriding constitutional concern to secure the dignity of the individual. The key to the balance between the two lies in a fair, independent and impartial investigation of crime. As a matter of principle I am unable to agree with the views expressed by the learned Chief Justice and my learned brother Justice Khanwilkar. On 29th August 2018, the jurisdiction of this court under Article 32 was invoked by five distinguished academics to seek an independent and comprehensive enquiry into the circumstances relating to the arrest of five human rights activists on 28th August 2018. The arrests by the Pune Police took place following the raids conducted at their homes and offices. The arrests took place simultaneously in Delhi, Faridabad, Pune, Thane and Hyderabad. The petitioners assert that our jurisdiction has been invoked not to impede the investigation but to ensure an independent and credible investigation is made by persons nominated by and subject to the supervision of this court. The petitioners urge that the invocation of the draconian provisions of the UAPA in the present case is an attempt to silence dissent by targeting human rights activists who have been working to protect the rights of the poor [. . . .]The grievance is that those five persons are being persecuted for their views and their voices are chilled into silence by a criminal prosecution.(Para 2, dissenting judgment, Justice DY Chandrachud)
This stands in sharp contrast to the framing of issues by the majority judgment, which formulated the questions interalia as follows:-
(i) Should the Investigating Agency be changed at the behest of the named five accused?
(ii) If the answer to point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL? (Para 20)
During the Supreme Court hearings, the State argued that the writ petition was not maintainable as the Petitioners had no locus standi to challenge the arrest of the arrested activist, and state, ‘being filed by third parties who are strangers to the offence under investigation’. . .Professor Thapar as one of the Petitioners, was affronted by this contention of the State. Her response was that being a social scientist she does not sit in an ivory tower, she studies social movements, she has a duty to engage with developments in her country. She said she is no stranger to what is happening in her country, and she is exercising her right to speak to draw the attention of the highest Court to what she thinks is unlawful and unconstitutional.
Justice Chandrachud, upholding the intervention by Prof. Thapar and others in the criminal investigation in the minority judgment states,
'I would not have been inclined to accept a technical argument of this nature in view of the constitutional imperatives for this Court to intervene when human freedoms and liberties are alleged to be imperiled. The jurisdiction under Article 32 is wide enough to reach out to injustice in any form and originating in any source. Securing human liberty and dignity must occupy an important space in the judicial docket. Liberty and freedom are defining values of our Constitution. The institutional role of this Court as a constitutional adjudicator should brook no technicalities which obstruct the cause of justice. When a group of citizens has moved this Court with an impassioned plea about the violation of human rights—in the present case no less than five distinguished citizens with a track record of service to the nation have done so—the Court must look beyond locus into the heart of the matter. Whether the grievance has any substance is indeed a distinct matter which must be determined objectively. The Court will not interfere in every case merely because it has the jurisdiction. But its duty to scrutinise, perceive and remedy violations of human rights is non-negotiable. However, the issue of locus, even in a technical sense, has receded into the background. During the course of the hearing, the Court has been apprised that each of the five individuals who were arrested has subscribed to the averments in the petition and would stand by what is urged before this Court in protection of their rights. The objection to maintainability lacks substance, in either view of the matter.' (Para 5, dissenting judgment, Justice DY Chandrachud)
Returning to the debates of the Constituent Assembly, apprehensions were raised with regard to special laws that suspend civil liberties. These anxieties were rooted in the experience of the strong arm of the colonial State, manifested through special laws like the Defence of India Act and the Public Safety laws. In the Constituent Assembly, during the discussions around preventive detention laws it was argued that such laws will be abused by whoever controls the levers of state power. In my view, Article 22 of the Indian Constitution which accords preventive detention powers to the state, strikes a jarring and discordant note, as it is couched in Chapter 3 of the Constitution which reaffirms our Fundamental Rights. Having guaranteed to every person the right to life and personal liberty under Article 21, the state then hurriedly steps in to assert its power to diminish freedom. The fears and apprehensions voiced in the Constituent Assembly Debates have indeed come true under every political dispensation. This continuing threat to our freedoms marks the juridical journey from the case of Romesh Thapar to Romila Thapar.
Let’s look at the trajectory of some of the draconian counter terror laws. The Unlawful Activities Prevention Act, under which the activists arrested in the Bhima Koregaon case too have been chargesheeted, dates back to 1967. With each amendment the UAPA law was made more stringent. When democratic protests, civil liberties discourse and evidence of rampant misuse compelled the State to repeal laws like TADA and POTA, some of the egregious provisions of these laws found their way into the UAPA. It is significant to bear in mind that no counter terror law has ever been struck down as unconstitutional by the Indian Supreme Court. We know that constitutionality of AFSPA was upheld in the Naga People’s Movement for Human Rights Vs Union of India case in 1997 by the Supreme Court, by a bench headed by Justice Verma. TADA too had been upheld in 1994, by the Supreme Court as constitutional and then allowed to lapse by Parliament in 1995. POTA enacted in 2002, was repealed by Parliament in September 2004. It is indeed telling that on each occasion the Supreme Court upheld the constitutionality and vires of these laws, and it was only through democratic engagement that they were struck off the statute book.
As I walked into this conclave today, I learnt that a letter written by some prominent citizens seeking the Prime Minister’s intervention in the growing spate of mob lynching, has been challenged as a seditious and ‘anti national’ activity. A lawyer in Muzaffarpur, Bihar, has filed a criminal complaint before the Court, seeking a direction that the signatories be charged and prosecuted for the crime of Sedition. The mind boggles, how, requesting the Prime Minister to protect the lives of fellow citizens facing targeted attacks can attract sedition charges!
Let us look at how the Supreme Court has responded on the issue of sedition, which remains a criminal offence under the Penal Code. Freedom of speech and expression has often been upheld by court and Sec. 66A of the Information Technology Act was dismantled with a flourish by the apex court (S. 66A IT Act for instance allowed criminal prosecution for sharing material which caused nothing more than ‘annoyance’!). However the offence of sedition, which entails a life sentence, and has a documented legal history of being used to target human rights defenders and stifling democratic protest, has rarely invited the wrath of the Supreme Court in the last three decades, despite constitutional challenges being presented. The offence of Sedition (S.124A IPC) uses the term ‘disaffection’. This term is also used to define an offence under the UAPA. If you ask challenging questions, whether with regard to imposition of the AFSPA or the status of the Adivasis, would that amount to causing disaffection? It is under criminal offences using this terminology that the human rights defenders in the Bhima Koregaon case are now being prosecuted. It is now (July 2019) just a month short of a year, for the activists arrested in August 2018, and just over a year or more for the activists incarcerated since June 2018.
The Unlawful Activities Prevention Act proscribes organisations, classified as ‘Unlawful Organizations’ or ‘Terrorist Organizations’. The CPI(Maoist) is banned under the Schedule, and this Entry bans the CPI(M) ‘and all its frontal organisations’. This formulation creates an open-ended category, to which the state can keep adding associations and groups found ideologically inconvenient. The process of notifying a ‘frontal organization’ is a little unclear in the statute and even more in practice. This ambiguity allows the state to stealthily control and redefine our freedom of speech, expression and association. In the chargesheet filed in the Bhima Koregaon case, three organizations have been named as ‘frontal organizations’: one, the Indian Association of People’s Lawyers or IAPL, which is chaired by Justice Hosbet Suresh, former judge of the Bombay High Court, and consists of prominent cause lawyers from across the country, including Sudha Bharadwaj, Arun Ferreira, Surendra Gadling, who are all office bearers of IAPL. IAPL activities include organising conferences, fact-findings, publication of reports on a range of human rights issues. It is not an underground subversive organization, it takes up cases of people targeted by the state, marginalized and vulnerable groups and communities, political dissenters and human right defenders; two, The Anuradha Ghandy Memorial Trust, which holds an annual lecture in the memory of Anuradha Ghandy in Bombay. The lectures have been delivered by eminent scholars, social scientists and even former judges; three, Kabir Kala Manch, which is a cultural troupe highlighting injustices and discrimination against Dalits and other oppressed communities.
The definitions of crimes under the UAPA are so vague, overbroad and ambiguous, that most dissenting political expressions and activity fall within its punitive net. These developments are so far removed from the impulses of the Constitution and its vision—the distance that law and polity has travelled in the last 70 years, is striking. Apart from the actual commission of violence, which of course is always punishable under law, what other acts are effectively criminalised by the UAPA? During the discussion in Parliament on amendments to the UAPA in August 2019, to designate an individual, as distinct from an organisation, as ‘terrorist’, the Home Minister speaking on the floor of the House said, ‘then there are those who attempt to plant terrorist literature and theory in the minds of the young. Guns do not give rise to terrorists. The root of terrorism is the propaganda that is done to spread it, the frenzy that is spread.’
The amendment to designate individuals as ‘terrorists’ enables the targeting of ideas by criminalizing individuals who dissent, who differ. In the working of special counter terror laws, ‘use’ and ‘misuse’ of the law don’t necessarily constitute two separate watertight registers. The law is framed in a way that renders lawful, what would otherwise be a misuse of the law. The scheme of the UAPA statute requires that the declaration of an organization as ‘frontal organisation’ is placed before a judicial tribunal, which has to either confirm or reject this prohibitory classification, followed by an appellate procedure. So what will be the consequences, legal and otherwise, for the individual designated as a ‘terrorist’ under UAPA? What are the parameters or requirements for an individual to be designated a terrorist? Earlier, under UAPA, the state was required to demonstrate an active membership with a banned terror group to penalise the individual. This legal safeguard has now been deleted and this law can now be used to prosecute the ‘individual’ labeled as ‘terrorist’ by the state, just for her ideas and ideology.
On 2nd August 2019 the UAPA Amendment Act was passed by both houses of Parliament and on 8th August 2019, it received Presidential assent. The Amendment effectively substituted the term ‘terrorist organisation’ with ‘terrorist organisation or individual’ and ‘organisation’ with ‘organisation or individual’ through the Act. [ii]
I would also like to comment on the role of the media, discussed earlier by Siddharth Varadarajan at this conclave, and emphasize that the media is the state’s new accomplice, particularly so in the Bhima Koregaon case. In fact, when this case began, I actually started watching Republic TV and Times Now television channels in order to try and figure out the next move of the state. There is a good reason for this, because the state prepares the ground by first demonising and vilifying the human rights defenders, spreading falsehoods about their work and lives. The media, a willing accomplice, peddles the myths of imminent danger and conjures a frenzy against the projected internal enemy and external threats to the nation. These narratives permeate the public imagination and create the public mood to justify the arrest and prolonged incarceration of human rights activists, the very interrogation of which is taboo. For instance, in the case of lawyer and trade unionist Sudha Bharadwaj, one of the alleged incriminatory letters appeared first on Republic TV news channel, months before her arrest. She promptly sent a legal notice to the channel vehemently denying the letter. But the broadcast of this letter on Republic TV, even before the police had whispered about it, was a forewarning of the impending State crackdown. The sequence itself speaks volumes that the alleged prime evidence against Sudha Bharadwaj is first presented as ‘breaking news’ by a certain news channel and much later as evidence before the court by the Pune police.
Prof. Thapar spoke about speedy trial, which the Supreme Court has held to be a fundamental right. In the Bhima Koregaon case, while all the arrested activists remain incarcerated, the Pune police has filed chargesheets and supplementary chargesheets, including CDs containing the alleged letters allegedly recovered from the devices of some of the accused. It is this electronic evidence, letters, without dates, without signatures, which is presented as material that discloses the criminal conspiracy. The prosecution provides one CD a day, and it has been estimated that at this pace it will take 230 days to provide the electronic copies of all the evidence. The law does not require them to be kept in prison once the investigation is over. As the Supreme Court has held on many occasions, bail and not jail should be the rule. The bail petitions of all the accused activists are pending in different courts. It’s interesting to know that the Supreme Court has directed the institution of fast-track courts for trial of Members of Parliament, so that an MP is not needlessly waiting for years for the case to be decided. There are, however, no courts for human rights defenders cases to be heard with any reasonable speed, although in my opinion it would be reasonable to assume that the state may foist false criminal charges on them, to silence them.
The accused activists have asked for a full copy of their seized hard disks, etc., to be supplied to them because, on the face of it, we can see that these letters are falsified. Justice Chandrachud, too, notes this in his dissenting judgement. There is a letter that the State claims to have recovered from the computer of one of the accused, allegedly written by Sudha Bharadwaj. A look at the typed letter, written in Hindi, shows that it contains some alphabets from the Marathi script. Clearly it could have only been written by a keyboard that is used to type Marathi! Sudha Bharadwaj is a prominent trade unionist and lawyer practising in Chattisgarh in the Bilaspur High Court. For more than a year before her arrest, Sudha was living in NCR and working as a Guest Faculty, teaching at the National Law University, Delhi, with no access to a Marathi keyboard while living and working in Chhattisgarh and Delhi.
I also want to remind us that the prayer made to the Supreme Court by these citizen petitioners was not that the case against the activists be dropped; all that was asked for was an impartial, fair and professional investigation, because there was strong and shocking prima facie material, like these letters, that the activists were being falsely implicated. The general election campaign of 2019 further revealed that this case featured prominently in the government’s political accomplishments, when posters enumerating the achievements of the NDA government and its strong leader, mentioned the arrest of ‘urban Maoists’.
I will end by turning my eye to a different location, Turkey, for I think it may be instructive for us to occasionally glance at the developments here. In January 2016, over one thousand academics signed a peace petition, ‘We Will Not Be Party To This Crime’[iii] protesting against the Turkish state and Turkish army’s attacks on predominantly Kurdish occupied areas, and calling for peace negotiations. Most of these academics for peace were terminated from their jobs, imprisoned, prosecuted and sentenced for ‘making propaganda for a terrorist organisation’. It was only in July 2019 that the Constitutional Court of Turkey ruled that the conviction of the Academics for Peace was a violation of their freedom of expression.
At this juncture, as citizens we have to deliberate how to keep the letter and spirit of the Constitution alive. Institutions have and will falter. It’s always been the people of this country who have believed in and upheld the Constitution. I think that time is upon us again.
Post Script, 14th April 2020:
In February 2020, the Ministry of Home Affairs transferred the investigation to the National Investigation Agency (NIA). By this time the Maharashtra police had already filed the chargesheet and a supplementary chargesheet. In November 2019, the NCP-Shiv Sena-Congress alliance formed the government in Maharashtra.
The bail applications of all the 9 arrested activists have been rejected by the Sessions court and the High Court.
The trial in the case is yet to begin. Currently, the Court before which the chargesheet has been filed is hearing plea’s by the accused seeking cloned copies of the hard drives and electronic data that has been filed with the chargesheet.
On 14th April 2020, on Ambedkar Jayanti, in the midst of the COVID-19 lockdown, Dalit activist and public intellectual Anand Teltumbde and human rights activist Gautam Navlakha, neither of whom have been named in the F.I.R or the chargesheet, surrendered before the NIA, after their pleas for anticipatory bail were rejected by the Supreme Court of India.
Recommended: Read in conjunction with ‘Arrest without Trial’ by Romila Thapar.
Vrinda Grover is a lawyer, researcher, and human rights and women’s rights activist based in New Delhi, India. As a lawyer she has appeared in prominent human rights cases and represented women and child survivors of domestic and sexual violence; victims and survivors of communal massacre, extrajudicial killings and custodial torture; sexual minorities; trade unions; and political activists. Focused on the impunity of the state in relation to human rights violations, her research and writing inquires into the role of law in the subordination of women; the failure of the criminal justice system during communal and targeted violence; the effect of ‘security’ laws on human rights; rights of undocumented workers; challenges confronting internally displaced persons; and examines impunity for enforced disappearances and torture in conflict situations.