India : The Virus and Creeping Fascism
Adv KP Muhammed Shareef, Senior Lawyer, NCHRO Exco Member.
For those who thought that fascism would take a back seat in the troubling times of a pandemic, they are mistaken – it has just gotten stronger. Fascism does not believe in intelligence and thought. It only believes in crude force and thrives merely on hatred and hostility.
While the Modi government is notoriously intolerant of critics, the systematic crackdown on some of the most compassionate civil society activists has been unprecedented in both scale and fervor. The political cowing through intimidation, the threat of violence or its actual use continues. Democratic institutions, such as the independent media, the legal system, law enforcement, and higher education are under clog.
As the pestilence continues to spread in our country and due to a large number of prisoners, the government has been asked to devise measures to reduce the spread of Covid-19 in jails. Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled. The Supreme Court had taken suo motu cognisance of the overcrowding of prisons and said it was difficult for inmates to maintain physical distancing to prevent COVID-19. A bench headed by Chief Justice SA Bobde and comprising Justices L Nageswara Rao and Surya Kant asked the state governments and Union Territory authorities to constitute respective high-level panels to determine prisoners who could be released on parole or bail those convicted or charged with offences entailing jail terms of up to seven years.
In line with the directive of the Supreme Court, the three-judge Bench of Kerala High Court, Justices C K Abdul Rahim, C T Ravikumar and Raja Vijayaraghavan gave the direction to decongest Kerala jails. The High Court said the order would not apply to prisoners having any criminal antecedents, previous convictions or in the case of habitual offenders.
A High Power Committee comprising the State Legal Services Executive Chairman, the Principal Secretary and the Director General of Prisons has been constituted and around 450 prisoners in Kerala’s prisons with interim bail and parole has been released.
Arnesh Kumar v. the State of Bihar is a landmark judgment, which was pronounced by the Apex Court as it imposed further checks and balances on the powers of the police before an arrest. In order to ensure that an arrest or detention is necessary and legal, the police and the Magistrate are required to follow certain protocol.
In the current pandemic scenario, the Supreme Court and various High Courts have devised mechanisms and procedures to resolve emergency cases with the help of modern technology and without even requiring litigants to appear in court.
However, the same Supreme Court rejected the bail applications of Gautam Navlakha and Anand Teltumbde. The constant abuse of personal liberty and constitutional rights by the government through their own spirited propaganda continues. “Clumsy and criminal fabrication” of both Gautam Navlakha and Anand Teltumbde, put on them with the nine other respected human rights activists and lawyers who have been in Maharashtra’s jails for close to two years.
The ruling dispensation, to gain support for their authoritarian rule, is running a sustained campaign, to discredit thinking minds and intellectuals. This campaign is nothing short from an assault on reason itself, a typical characteristic of fascism. Since there was overcrowding in jails which led to serious threat of Covid-19 spread, The Article 21 of the Constitution provided for an innovative aspect of releasing prisoners on a war footing by the order of the Supreme court. The same Supreme Court is inviting criticism on national and international levels for giving orders to imprison activists who do not have any criminal background.
Amnesty International India’s Executive Director Avinash Kumar rightly pointed-: “On one hand, the court acknowledges that overcrowded prisons present a serious threat and recommends the release of prisoners during the pandemic and then it directs two activists who have been critical of the government to surrender before the police and to be sent to jail”.
It is in the infamous Bhima Koregaon case of 2018, that both Gautam Navlakha and Anand Teltumbde have been charged with the draconian UAPA law. Sudha Bharadwaj, Shoma Sen, Surendra Gadling, Mahesh Raut, Sudhir Dhawale, Vernon Gonsalves, Arun Ferreira, Rona Wilson and Varavara Rao have been arrested in this case unjustly and without any reason. The arrested activists have been involved in fighting for the rights of Adivasis and Dalits, taking a strong stand for them, protecting them and their resources from exploitation by the Central Government and the Corporates and bringing this to public light and these activities have earned them imprisonment.
We live at a time when the language of democracy has been pillaged, stripped of its promises and hopes. On one hand, Innocent Human rights activists known for their civic courage and engagement have been targeted while real perpetrators roam free. A separate investigation into the Bhima Koregaon violence by the Pune rural police had pointed fingers at Hindutva fringe groups guided by their leaders Milind Ekbote and Sambhajirao Bhide behind the riots. Ekbote was arrested and was granted bail by the Supreme Court. Bhide, known for his proximity to senior Sangh Parivar leaders was never arrested.
Ironically Maharashtra Deputy Chief Minister Ajit Pawar and Home Minister Anil Deshmukh held a meeting on January 23 to review the Bhima Koregaon cases and initiate steps to set up an SIT. But the Union home ministry swiftly stepped in the very next day and handed over the case to the NIA. This decision was hasty and taken even when the Pune police had been investigating the case for close to two years. The law enforcement agency itself got changed with the new state government in Maharashtra. Who is afraid of whom?
On April 4, 2020, the United Nations High Commissioner for Human Rights has called for the release of all politically-motivated detainees in the wake of the rapid spread of Covid 19. The call fell on deaf ears as the government is busy in locking down those who criticize the government’s anti-people policies. Further The United Nations Special Rapporteurs, in a communication dated May 06, 2020, wrote to the Indian government, raising their concerns regarding the Unlawful Activities (Prevention) Act, 2019 (UAPA 2019). The report mentions the ongoing situation in India that demonstrates discrimination directed at religious and other minorities, human rights defenders and political dissidents, against whom the UAPA has primarily been used.
‘Presumption of Innocence’, is undoubtedly the elixir of criminal jurisprudence. It means the burden of proving the alleged crime is on the one who declares and not the one who denies it. But isn’t it strange, that even with the right to silence, 99% convictions in POTA, TADA and UAPA are based only on confessions(retracted) made by the accused?. Draconian laws are used to continuously harass opponents. Besides a low conviction rate under UAPA, the police rush to slap the vague definition of ‘unlawful activities’ and ‘membership of terrorist organisations’. This is nothing for prolonged incarceration and ruining lives. As noted lawyer Mihir Desai said “If you commit murder, you are entitled to bail. Under UAPA even if you are innocent, you lose four-five years of your life”. Fascism always rigs the system and laws.
Dr. Kafil Khan, who questioned the UP government’s incompetence has been arrested and jailed. Months after being released on bail, he was thrown into prison again after punching NSA. Protest and public gatherings are fundamental tools for people to express their grievances and seek political, social and economic reform. Under the cover of Covid-19, the Union government-controlled Delhi Police has arrested several people who had been protesting against the Citizenship Amendment Act, NPR and the proposed National Register of Citizens, many of them slapped with draconian UAPA. The government has time and again used draconian laws such as sedition and criminal defamation laws to silence dissent.
Be it Devangana Kalita, Safoora Zargar, Meeran Haider, Ishrat Jahan, Natasha Narwal, Shifa-Ur-Rehman, and many known and unknown. All are arrested simply for upholding the Constitution. All the young voices irrespective of their religion, caste and creed joined the protest as they realized the arbitrary classification of citizens and implementation processes will be the beginning of a slow, structural violence targeting the poor, marginalised and Muslim sections of society. Fascism justifies the use of violence and its own tactics to rid the society of minorities and opponents.
When governments impose unjust laws, they have breached a fundamental condition of the social contract, public expressions of dissent lie at the very heart of representative democracy. Yogi Adityanath government has registered an FIR against Siddhartha Varadarajan, the founder editor of ‘The Wire’. The FIR is another attempt to intimidate journalists and prevent them from highlighting news that is uncomfortable to the powers that be. Assaults against working journalists and media outlets, especially those criticizing government policies and actions, have been on the rise in our country.
Mohammad Chingiz Khan, Manipuri PhD Student at JNU arrested for year old article critical of BJP led state government. It reflects; as India continues to slide down the World Press Freedom Index. In the annual rankings released by “Reporters Without Borders” in 2020, India was ranked 142 out of 180 countries. The targeting of independent journalists, from criminal defamation to inciting communal disharmony to sedition was part of an “established pattern” of harassment of independent scribes.
Biased Media, Disinformation bubbles, Media as collaborators, Media indirectly controlled by government regulation etc. are early warning signs of Fascism.
Civil society has a role of enabling the hitherto voiceless and unorganised communities interests to be represented and “ensuring the accountability” of the State in different spheres. ‘To Question’ is the right of every citizen under the constitution is now under threat. A democracy needs an informed citizenry with citizens who are actively engaged in civic life. The key role played by human rights defenders in protecting and promoting human rights and strengthening the rule of law, often at great risk to themselves, and to the organizations and movements they often represent. These are individuals who stand up for others who face discrimination often at their peril.
The message is clear across globe:- “By working together, humanity will eventually weather the COVID-19 crisis”. We have seen how the virus does not discriminate, but its impacts do. Across the world, we heard stories of responding to COVID-19 with strength, humanity, and kindness and mankind sees only two religions of ‘Covid Positive’ and ‘Covid Negative’. But in India every catastrophe is an opportunity to build exertions which artificially insert communalism and the hatred that is spilling out in every platform.
The effect of the gathering in Delhi Nizamudheen Banglewali Masjid has been blown out of proportion and slogans like ‘Covid Jihad’, ‘Corona Jihad’ and ‘Corona Terrorism’ have been used by the government and pro-government print and electronic media with aim of spreading communal agenda of hatred, sectarianism and communalism throughout the country. Social media and WhatsApp groups have been flooded by calls for social and economic boycotts of Muslims and there have been numerous physical attacks on Muslims, including volunteers distributing relief material, amid falsehoods accusing them of spreading the virus deliberately. Vilification messages circulated barring Muslims from entering certain neighbourhoods in states as far apart as Delhi, Karnataka, Telangana, Haryana, Uttar Pradesh and Madhya Pradesh. Even Mainstream Indian media repeatedly asserted that Tablighi Jamaat members were coronavirus “superspreaders”.
The fascist methods are not accidental, it is constantly revised and facilitated by technology. Fake news of the deliberately misleading kind doesn’t just happen. It’s often an organized effort. Fascist politics does is get people to disassociate from reality, transform their lie into a new reality, and they propagate that the people to believe in the unreality they’ve created.
When governments are seen as flawed or repressive, people search for avenues, the protests against the discriminatory Citizenship (Amendment) Act (CAA), National Register of Citizens (NRC), NPR etc. have shown the enduring creativity of people of India, Leaderless agitation on constitutional points, with the Preamble, Cartoon, Poetry, Meme’s, the national anthem and the tricolour on full swing, the country has witnessed one of the most moving and extraordinary displays of solidarity in recent history. The fight for justice, for equality, the fight for change has to continue.
The crisis in Indian politics and society is such that the cancerous spread of fascism while we are complacent. Building a vibrant culture where communalism, racism and fascism are not welcome is the need of the hour, to elevate people to make them better than they are and to have them live a life that is focused on human dignity for every human being. All of us who are committed to a tolerant and multicultural society now urgently needs to be deepened and extended, uniting all people and organisations of goodwill against the challenges we face from the fascists.