The prophetic words of Justice Jasti Chelameswar on January 12 this year that democracy was in danger appear to be true with the arrests of five activists based on a first information report (FIR) filed in January against members of the Kabir Kala Manch (KKM) — a cultural group which was long under the police scanner for alleged Maoist connections. This is why the renowned Telugu intellectual Pendyala Varavara Rao, journalist Gautam Navlakha and lawyers Sudha Bharadwaj, Arun Ferreira and Vernon Gonsalves are under house arrest.
The Unlawful Activities Prevention Act, (UAPA) 1967 was enacted to jail those who attacked the integrity and sovereignty of India, which is laudable. But even if they are Maoist sympathisers, the government cannot jail rebels unless they use violence to dismember India. The Maharashtra Police’s press conference during which catalogues of grenade launchers and machine guns were shown to the media, does not disprove the allegation that the police may have planted evidence against the five.
Like the defunct Jana Sangh which survived in the new avatar of the BJP with the RSS as the umbilical cord between the two parties, the draconian aspects of POTA surfaced as the UAPA with the need to preserve the sovereignty and integrity of India acting as the umbilical cord between the two laws. And so, like POTA, it is being (mis)used by the government to stifle its critics. There is no doubt that India’s security and integrity override the freedom guaranteed to activists if their activities dismember India.
Renowned medico Binayak Sen was convicted under the UAPA while Arun Ferreira was earlier jailed and tortured under the same Act. Varavara Rao and his friends have been accused of keeping catalogues of weapons like grenade-launchers and machine guns made in China and Russia. But keeping catalogues is not an offence under the law. How these alleged Maoists proposed to get these guns into India is a mystery as it is not easy to smuggle them here. Besides, they must have had a propensity for collecting huge funds to pay for the enormous cost of such deadly weapons.
Now, to deal with the chimera of judicial independence, Justice K M Joseph was humiliated by the Narendra Modi government which opposed his elevation to the Supreme Court on the specious ground that Kerala was already sufficiently represented in the Supreme Court and there was no need of another judge from that State. This was why his name was returned to the collegium. Chief Justice of India Dipak Misra succumbed to this move of the Modi government by meekly saying that “there was nothing wrong if the government returned the name of Justice Joseph for reconsideration of the collegium.”
After all, the National Judicial Appointments Commission (NJAC) Act was passed near-unanimously in both houses of Parliament with only the indefatigable Ram Jethmalani abstaining from casting his vote. When it was struck down by the Supreme Court, it was only Justice Chelameswar who supported the NJAC law to appoint judges. The thinking is that it is the MPs and MLAs who decide the future of India because they are accountable to the people whereas the judiciary is not.
Again, let us fast forward to April 2018 when the Modi government has allegedly tried to dilute the Right to Information Act, 2005 so that the salaries and allowances of the information commissioners would no longer be equal to that of Supreme Court judges. The Right to Information Act has been sufficiently diluted by the Modi government as alleged by Sonia Gandhi in Parliament.
Former information commissioner and RTI activist-expert Shailesh Gandhi has stated the Supreme Court has interpreted this sunlight law to the detriment of citizens in 18 out of 20 judgments so that its teeth have been taken away. Only two judgments have expanded the scope of the RTI Act. Prior to 2005, the judgments were laudable but after the Act came into force, the judiciary was shy of coming under its ambit.
Now, let us move the tape backwards to when Special Public Prosecutor Rohini Salian said in 2015 that she was sent feelers through the National Investigative Agency (NIA) to “go easy” on alleged extremists from the majority community because the BJP-RSS government, which had taken over in 2014, was not interested in getting the accused convicted.
Salian even wanted herself denotifed as the NIA special public prosecutor so that she could argue against that agency. In April 2017, a special court in Mumbai dropped charges under the stringent Maharashtra Control of Organised Crime Act against 12 accused in the Malegaon bomb blasts case. A powerful bomb exploded near the crowded Nooraji Mosque in Malegaon on September 29, 2008, killing six persons and injuring 100 others, around 300 kilometres north of Mumbai in Nashik district. The motorcycle used was owned by the firebrand Sadhvi Pragya Singh Thakur.
Initially, the 2008 case was probed by the ATS. In April 2011, it was taken over by the NIA but charges against all the accused have not yet been framed. Purohit continues in jail, accused of preparing a Constitution for a “Hindu Rashtra” and a separate saffron flag. Even after her release on bail, as she is a cancer patient, the Sadhvi gave an inflammatory speech with no action taken against her. As charges have not yet been framed, it will take five years for the trial to end.
A court of law may not always be synonymous with a court of justice when law and order become calamities because of majoritarian ideology.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.