India: Turning into a Nation without Law, Order, or Justice
Anand Teltumbde, a well-known writer, academic, civil rights activist and a Dalit public intellectual is now under detention. He and Gautam Navlakha, a civil rights campaigner surrendered to the NIA. Running from pillar to post, their legal fight shows, laws and courts exist, but at the end of the day, they serve the whims of the state and offer little protection to the individuals who charged with draconian Unlawful Activities Prevention Act (UAPA). Where state institutions are no longer based on the rule of law, but on power and vested interests, criminalization and incarceration become easy and are the new normal. This is yet another in a string of arrests since Bhima Koregaon. Alarming crackdown on civil liberties continues apace, from the stifling of dissent through imprisonment and worse, arbitrary application of UAPA. The government continued its extensive violations of our constitutional freedoms.
Abrogating, denying or even suspending the Constitutional rights and the determined onslaught on democratic institutions, including the media and the judiciary, shadows an undeclared emergency in today’s India. The real Emergency will be that we will not even recognise that we are in an Emergency.
Impartial journalism, matters more than it ever as a trusted primary source of information that allows us to make reasoned choices. Only when journalists are free to monitor, investigate and criticize the public administration’s policies and actions can good governance take hold. Sadly, the fundamental right to seek and publish information through an independent press is under attack. The information with which audiences understand issues are effectively removed from public debate. The production, dissemination, and exchange of bad information and faulty facts through dedicated networks are the new media which aims conscious and intelligent manipulation of the habits and opinions of the masses.
The politicization of the judiciary, its lack of real independence and the frequent violation of the principle of equality before the law are some of the means by which the law is used as an instrument of domination rather than as a guarantee of justice. This is very clear in the case of jailed Bhima Koregaon activists, Anand Teltumbde and Gautam Navlakha, among others. Keeping people in jail for a crime they have not committed is an extremely dangerous erosion of our judicial system. At a minimum, the rule of law requires that public officials obey the substance of the law as well as respect the procedures embedded in the law. At the same time, Milind Ekbote, Sambhaji Bhide and their hooligan criminal gangs, the real perpetrators of mass violence enjoy de facto immunity from prosecution by virtue of their association with Sangh Parivar.
Hundreds of people are locked up on spurious grounds under the draconian laws like the Unlawful Activities (Prevention) Act (UAPA), Armed Forces (Special Powers) Act, Public Safety Act and National Security Act. The rule of law provides a structure through which the exercise of power is subjected to agreed rules, guaranteeing the protection of all human rights. But the Indian Police and other higher agencies learn to put their professional ethics aside to implicate innocent people, especially when “an authority figure is instructing and institutional circumstances” demand it. In other words, they enjoy more on their loyalty than ‘Rule of Law’.
Whenever the demography of Indian prisoners is mapped or classified, the data will always present a social disparity indicative of some discrimination or bias in judicial cases. Erstwhile National Crime Records Bureau’s data reveals over 55 per cent of undertrials across the country are Muslims, Dalits or Tribals (The government has since stopped giving religion, caste wise NCRB data). Adivasi’s and Tribal’s feared being framed for anti-state maoist activities, while Dalits for petty crimes and Muslims for terrorism-related charges.
Take Anand Teltumbde, his admiring service to this country in various roles in corporate world, as a teacher, as a civil rights activist and a public intellectual. He is in jail slapped with UAPA, this is because of the politics that he articulates, a politics that is anathema to the rightwing. It is not misadventure that Dalits, Adivasis and Muslims remain unjustly the prime target of draconian laws, along with anyone who dares defend civil liberties. For them prolonged pre-trial detention is one way of the ‘Punishment without Crime’.
The UAPA’s aberration from the general principles of criminal law are too grave and the effect that the law has had, along with its predecessors in TADA and POTA, used to target religious minorities, specifically Muslims. Terrorist and Disruptive Activities Prevention Act (TADA) had existed for almost a decade, and more than 76,166 persons were detained for years. The TADA had a conviction rate of a mere 1%.
Under POTA, 4,349 cases were registered, 1,031 people arrested only 13 people were convicted. Both TADA and POTA because of the sunset clause had a time limit of two years after which they had to be sent to the Parliament for a new lease of life, UAPA doesn’t have a sunset clause though. Gautam Navlakha who was also recently arrested along with Teltumbde wrote over a decade ago, “A law is bad in itself when it overturns all notions of natural justice on its head and allows the executive to apply the law at its subjective discretion”.
Mooting the youngest jailed Bhima-Koregaon activist Mahesh Raut, Adivasi rights defender, studied at the Tata Institute for Social Sciences, a former fellow of a prestigious Prime Minister’s Rural Development Programme of the ministry of rural development, and son of a police official. He’s been in jail without trial for two years. His ‘real crime’, raising his voice against illegal mining in Gadhchiroli, Maharashtra, understanding and deliberating for the rights of tribals and other communities not as an academic writer but with knowledge gained from years of living with rural communities in the forested villages. He highlighted how Adivasi’s, India’s original inhabitants including the Madia Gonds, an Adivasi community designated as ‘particularly vulnerable’, well known for their socio-cultural uniqueness were fighting to protect their lands, resources and sacred sites, often facing state hostility and criminalisation.
Supreme Court judges who author judgements in favour of the government are likely to be appointed to a “prestigious” job after they retire, according to a research paper titled ‘Job(s) for Justice: Corruption in the Supreme Court of India’. The research was based on a dataset of all Supreme Court of India cases involving the government from 1999 till 2014. The “pandering” to the government occurred through two channels: “through actively writing favourable judgements rather than passively being on a bench that decides the case” and “through potentially harmful manipulation of actual decisions in favour of the government”. These findings suggest the presence of corruption in the form of government influence over judicial decisions that seriously undermines judicial independence. (http://www.mysmu.edu/faculty/madhavsa/research/judges.pdf)
The Indian State clearly tends to an oppressive one. Violations of human rights and injustice by law enforcement authorities are not uncommon. To dissent is to invite the wrath of political authorities and their subsidiary bodies- bureaucracy, police, and the judiciary at all levels. Democracy tends to be reduced to a mere facade. In a country like India, when caste-class-ethnicity is the basis of political power, the system lends itself to creating endemic injustice. In writings the rights to liberty, security and equal justice under the law are cornerstones of justice systems but each year thousands of people find themselves in jail without being convicted of anything often years long as they await trial, ruining the lives of individuals snatched from their family and their social and occupational environment and deprived of their freedom and their good name for an indefinite period. All these torture are inflicted on them in the name of justice.
Indians of all ages, ethnicities and religions protested the new citizenship initiatives (Citizenship Amendment Act CAA, National Register of Citizens NRC, NPR) in nationwide demonstrations. Around the world, people have held vigils, organized protests and participated in creative ways to show solidarity. People spilled onto the streets offering hope, solidarity and reassurance to those threatened by the politics of hate and fear. The ruling establishment has responded with its well-used playlist of attempting to communalise and discredit the protestors; instigating divisions among people, violence, and by deploy crushing state force. But this time, none of it was worked as the people very much knew freedom of speech; right to assemble and peaceful agitation are the basic features of a democratic system. Now under the cover of covid pandemic, busy in mobilising police with mass arrests, slapping draconian laws against students in Delhi all emblematic of a troubling trend that attacks the very foundations of a democratic society.
The organised riots unleashed in Delhi between February 25 and 28, of the 53 people killed, two-thirds were Muslims who were shot, slashed with repeated blows or set on fire. Muslims properties were disproportionately targeted and Delhi police never had the ‘will’ to act and discharge their constitutional obligations, despite there are enough powers in the law to enable them to do it effectively. It is clear Delhi Police and Hindutva politicians complicit with acts of commission and omission. Now the trapeze started as Delhi police filing false and politically motivated charges against innocent anti-CAA activists connect them with the Delhi riots while not arresting any ruling party figures and police officers for their ‘real’ role in the violence. The conclusion is clear India a safe haven for Sangh Parivar for its crimes against humanity. This is what law and order without justice looks like: a nation without law, order, or justice.
Constitutional morality was a value that not just citizens but also the government and its branches must learn. The very essence of constitutionalism is that no organ of the State may accumulate or exercise powers beyond what is specified in the Constitution.. A culture of elite impunity, where law enforcement and political leaders face absolutely no accountability for misdeeds must change. The current environment of Rule of law actually provides law enforcement a sense of immunity or impunity in whatever crime, manipulation, cover up they do. Demands for justice must inevitably return to law and the mechanisms for its enforcement.
The National Confederation of Human Rights Organizations (NCHRO) has unequivocally condemned the way in which highly respected intellectuals are targeted. The remarkable and selfless people who lived their life in the progressive service of their fellow human being, we will not forget those unsung heroes who worked for humanity. There were quiet and unassuming extraordinary bravery displayed by ordinary people across India, including countless courageous human rights defenders, who exemplify resilience in the face of repression. In the meantime, our jails will continue to hold those arrested, and our courts will process their cases. Laws will be interpreted to justify state violence. “Only collective actions can transform laws, creative expression can change attitudes and an invention can alter the course of history,” as stated in the UN website. We must all join in the conversation for advocacy, expect change that is more transformative, fairness and justice.