Delhi University Professor GN Saibaba, who is 90 percent disabled, as well as JNU student Hem Mishra, journalist Prashant Rahi, as well as Mahesh Tirki and Pandu Narote were convicted under UAPA for “aiding and abetting” Maoist activities, and sentenced to life imprisonment by a sessions court in Gadchiroli. Another convict Vijay Tirki was sentenced to 10 years rigorous imprisonment.
The judgement in this case – and the Unlawful Activities Prevent Act itself – deserve a close examination because of the dangerous implications they carry for basic, internationally accepted principles of justice. Under such principles, an individual must be convicted for a violent crime, based on evidence directly linking him/her to the crime. Mere ideological agreement with the perpetrators of the crime cannot be the basis for conviction. This is why Courts have reiterated on several occasions that “Mere membership of a banned organization” is no crime. Acquitting Arup Bhuyan who had been convicted under the draconian TADA for his alleged membership of the banned outfit ULFA, the Supreme Court noted in 2011 that Bhuyan had denied being an ULFA member but “Even assuming that he was a member of ULFA, it has not been proved that he was an active member and not a mere passive member. Mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence.”
In 2012 the Bombay High Court granted bail to several persons who had been arrested and incarcerated without trial on the charge that they were Maoists. The verdict in this case observed, “Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organisation, and were perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members – much less such members as would attract the penal liability – of the said organisation.”
In 2015 the Kerala High Court ordered the State to pay Shyam Balakrishnan Rs 1 lakh in compensation for wrongfully arresting him on suspicions that he was Maoist, when he was riding a bike in the Vellamunda forest area in Kerala. The judgement granting compensation observed, “Being a Maoist is no crime, though the political ideology of Maoists does not synchronise with our constitutional polity. It is a basic human right to think in terms of human aspirations… therefore, Police cannot detain a person merely because he is a Maoist, unless Police forms a reasonable opinion that his activities are unlawful.”
The Gadchiroli court’s judgement goes against the basic constitutional and judicial precepts underlined in the verdicts quoted above. As a statement by the Human Rights Forum (HRF) observed, “It needs to be borne in mind that the six were not charged and convicted for committing acts of violence. They were charged and convicted for purportedly being members of and being associated with the outlawed Communist Party of India (Maoist), for being in possession of literature of that proscribed organisation and for providing financial assistance to it.”
The HRF statement points out that the judgement convicting Saibaba and others is legally unsound: “This judgment is bad in law on several counts. In convicting the six, the judge of Gadchiroli Court relied upon untrustworthy evidence. Pertinently, there were hardly any independent witnesses. It was a virtual beeline of police witnesses, stock witnesses and tutored ones which is hardly convincing enough to convict a person, much less for life. The judge relied upon documentary evidence consisting of material saved in electronic gadgets like scandisk memory cards, mobiles, pen drive, CDs, hard disks and a few pamphlets which were allegedly seized from the accused. Their contents were anything but incriminatory. Several doubts were raised by the defense counsel about the modus operandi of the seizures that were not answered properly in the judgment. There was heavy reliance upon confessional statements of Accused No. 1 and 2 which they later retracted. In fact, the two were vulnerable adivasis, compelled to be witnesses against their own cause.
“HRF hopes that the appellate court would reverse the judgment. We call upon all those who cherish the rule of law and democracy to seek repeal of the draconian UAPA and Section 120-B, IPC.”
The verdict has held even mere appeals to protest against crimes as ‘incitement to violence.’ For instance, the verdict refers to a Marathi leaflet that appealed to people to protest against the Maharashtra Government for shielding the perpetrators of the Khairlanji massacre of Dalits. The judgement holds that Mahesh Tirki, by circulating such a leaflet, was “inciting people and abetting the people for violence by spreading disaffection against the Government.” The verdict likewise refers to a video where GN Saibaba is seen on dais “speaking about Telangana and giving a call to give blood for creation of Telangana.” The verdict claims that this establishes that he was “instigating the people to fight and to wage war against the Government.” How can such a speech be interpreted as an incitement to violence?! Asking people to give up lives for a cause is not the same as asking them to kill for a cause!
The verdict claims that Saibaba’s organization Revolutionary Democratic Front is instigating disaffection in a criminal way because “RDF has rejected the use of parliamentary system and its electoral system by promoting and propagating communist ideology.” So according to the verdict it is a crime to say that one does not believe in electoral politics and a crime to propagate communist ideology.
Using circular logic, the verdict claims that the CPI Maoist is a banned outfit and RDF is a front of the banned outfit, and that accordingly RDF is a “terrorist outfit.” Members of the RDF accordingly “cannot claim right to freedom of speech and expression and to form association under Article 19 of the Constitution of India, which is available to ordinary citizen of India or members of registered political parties and not to the members of terrorists organization and they cannot claim the said right in the capacity of terrorists organization.” This is a dangerous argument that first declares an organization to be “terrorist” based not on its violent actions but merely on ideology, and then declares that members of such an organization cannot claim the constitutional protection of right to free speech!
The judgment relies on the draconian UAPA sections that allow for guilt by association: noting that under section 20 of UAPA, “it is not necessary that a person should commit an offence but the person should be member of terrorist gang or organization which is involved in terrorist act.” The judgement is unable to establish any direct link between the RDF organization and any violent crime, except for the fact that the RDF uses the slogan ‘Naxalbari Ek Hi Rasta’ (Naxalbari is the only path.)
As evidence against Saibaba, the judgement even cites leaflets appealing to “democratic and civil rights organizations and activists, writers and intellectuals, journalists, students and youth” to protest against a fake encounter killing and “to punish the police officers guilty of these crimes.” Since when is it a crime to appeal to citizens to demand justice for a crime that police officers are alleged to have committed?
The judgement will be challenged and hopefully set aside in a higher court. But we must also fight to repeal the draconian UAPA that makes thought a crime.
Some draconian features of the UAPA are summed up here
by Shoaib Daniyal (Scroll.in, March 9, 2017):
Expanded definition of terror: “Terror” under the Unlawful Activities (Prevention) Act includes even the “disruption of any supplies or services essential to the life of the community in India or in any foreign country”. Which means even an industrial strike could now be “terror” if the government so chooses it to be. Moreover, simply being the member of a “terrorist gang or organisation” is enough to merit life imprisonment, even if the accused played no actual part in a crime. This has led to cases where the police has tried to prove membership of the Communist Party of India (Maoist) simply by pointing to the person possessing “Maoist literature” – a unique case of your reading choices leading you to prison.
Encourages police torture: Gruesome torture is an almost regular part of policing in India. The UAPA makes it even easier for this to occur since it allows the police to detain someone for up to six months without filing charges.
Overturns presumption of innocence: Innocent until proven guilty is a fundamental feature of the common law system that India follows. The Unlawful Activities (Prevention) Act, though, overturned it in 2008. A person is automatically assumed to be guilty if weapons are recovered from him. India’s lawmakers, in a convenient bit of naiveté, did not consider the prospect of the police itself planting arms on a person even though instances of such false cases are rather common in India.
Arbitrary bans: The Unlawful Activities (Prevention) Act empowers the state to ban organisations summarily without having to provide a reason. This leads to a curiously Kafkaesque situation: how can an organisation logically contest its ban in court if it does not know why it was banned in the first place?
Guilt by association: This rather well-known logical fallacy is also a key part of the UAPA. In 2012, the Union government expanded the definition of a “person” to include “an association of persons or a body of individuals”. Given this clause, as this Human Right Watch report points out, a person could be charged with terror for simply being in contact with another accused.
