SOME DESCRIBED IT as close as one can get to a midnight knock. In a swoop across four states of the country, the Pune police arrested five Leftist activists and sympathisers of Maoists on August 28th. This attracted widespread criticism from liberal circles in India as being draconian. The story, however, is more complicated.
A day after the arrests, the lawyers for the arrested activists took the matter to the Supreme Court for their immediate release. The court—which made a comment about dissent being the safety valve of democracy—took a middle path. It did not free the five but neither did it give the police what it wanted. Two activists who were arrested from Delhi will remain under house arrest until the next hearing on September 6th.
The five—Gautam Navlakha, a long-time activist of the People’s Union for Democratic Rights; lawyer Sudha Bharadwaj; Arun Ferreira; Vernon Gonsalves; and the revolutionary ideologue and poet P Varavara Rao—were detained for allegedly inciting violence at a gathering in Bhima Koregaon this January. The gathering was commemorating the 200th anniversary of a historic battle where a contingent of Dalits serving under the East India Company had defeated the forces of the Peshwa. Immediately after the violence a number of activists had been arrested. Since then, this is the first set of arrests that the Pune police has carried out.
Immediately after the arrests of Bharadwaj and Navlakha, courts intervened and denied a transit remand to the police. On January 29th, the National Human Rights Commission (NHRC) issued a notice to the Maharashtra government for not following ‘proper procedures’ while arresting the activists.
In a press release, the NHRC noted that, ‘According to the media reports, carried today on the 29th August, 2018, the Delhi High Court has stayed the transit remand for civil liberties activist Gautam Navlakha, observing that police have not been able to satisfactorily explain the offence he had been arrested for. The decision on a transit remand for lawyer-activist Sudha Bharadwaj is also pending before the Chief Judicial Magistrate of Faridabad. The activist has told the court that she had nothing to do with the incident for which she has been arrested. According to her, the FIR did not even name her and she is being harassed and arrested only because of her ideology.’
So it was not quite a midnight knock. If anything, these activists had quick access to legal counsel and courts, something that many Indians don’t get when placed in similar situations. In any case, the evidence that the Pune police presents will be examined, cross-examined and tested in a court. India’s judicial system is sufficiently robust to prevent a miscarriage of justice. In cases of such gravity, conviction on weak evidence is rare.
Soon after the arrests were made, a vigorous debate commenced on the legal and political aspects of the case. It has been alleged that a political witch hunt of sorts is on and ‘dissenting’ activists are at the receiving end from a Government that does not agree with their politics. That is an extreme view. In the past, three of the arrested activists—Arun Ferreira, Vernon Gonsalves and P Varavara Rao—have had a brush with the law. Gonsalves, for example, was booked under the harsh Unlawful Activities (Prevention) Act (UAPA) and was convicted in one such case. Rao is a well-known Maoist ideologue. The earlier arrests were made during the time of the United Progressive Alliance (UPA), a ruling coalition of a very political complexion.
Then there is the issue of ‘dissent’ in contemporary India. This is a complex terrain. In any democracy the right to political protest is part of the package of freedoms available to all citizens. In India, a raucous democracy by any measure, this right has amplitude that is comparable to most established democracies. When viewed dispassionately, the country ranks fairly high in standard measures of political freedom as calibrated by established indices such as Freedom House. In fact, in the Freedom in the World 2018 rankings, India is among the handful of countries in Asia ranked as ‘free’. Something similar is observed in the Polity IV index, another standard measure of classifying countries along the spectrum from democracy to autocracy. Viewed from that perspective, the claim that India is flirting with authoritarianism is off the mark.
At the same time, when contrasted with established democracies, India has a number of specific features that marks it off from them. Foremost being the prevalence of a number of insurgencies and secessionist movements across the country. In the instant case, a number of those who have been arrested have been known to have links with the Maoist insurgency that rages in different parts of India. In the usual course, sympathy with Maoist ideas is tolerated as part of the standard package of freedoms. But at times, the lines get blurred: what if advocacy melds—surreptitiously and seamlessly—into the actual task of executing those ideas, including the task of overthrowing an established state? In the usual course, there are plenty of markers available to make a distinction between the two. But at times it is not so simple in this age of instant communication where an allegedly ‘harmless’ advocacy of extreme ideas can have real-world consequences elsewhere. If political rights are valuable and should be protected, it is equally true that states have their own security interests that are equally vital. It is loose talk to suggest that powerful states are a threat to freedom. If anything, freedom and liberty cannot survive in weak states with anarchic conditions.
The arguments being made now in favour of the arrested activists were made in another similar—and celebrated—case just a few years ago. At that time, too, an academic activist from Delhi, G N Saibaba, was arrested for alleged links with Maoists. The same arguments about his innocence, lack of evidence, a vengeful state intolerant of dissent were made at that time as well. Last year, a court in Maharashtra convicted and handed a life sentence under the UAPA.
So how should the conflicting demands between national security and some very valuable political freedoms be balanced? On the whole, India has done a commendable job in maintaining this balance. The Indian Constitution provides safeguards on both ends. One the one hand, it prescribes almost watertight freedoms that no government since Independence has had the courage to tinker with—barring a brief interlude in the 1970s when they were suspended. On the other hand, it provides ‘reasonable restrictions’ on these rights and also provides for the possibility of preventive detention. Almost all harsh laws, including the Armed Forces Special Powers Act, sections of the UAPA among others, have been challenged in courts and tested on the balance between these twin objectives. Laws that did not meet these standards or were in danger of being thrown out by courts, for example the Terrorist and Disruptive Activities (Prevention) Act 1987 and Prevention of Terrorism Act 2002, were repealed. So on legal grounds, too, there is little to worry about abridgement of freedoms.
The legal process against the five detainees has only begun. At appropriate stages, the courts will take a call on the evidence and charges and as is the normal practice, order their release if there’s no evidence against them or if it is so weak that it merits no action. But these are early days, it is important to let the police present the evidence it has on its hands and conclude its investigation freely.