A parallel penal system which is outside the purview of judicial oversight, which is not accountable to anyone, and which can penalize anybody whom the political dispensation dislikes with total impunity, has of late developed in the country. It amounts to a de facto devaluation of the judiciary, and it justifies itself by invoking the threat to the ‘nation’ from acts of terrorism. Its main instrument at present is the Unlawful Activities (Prevention) Act, which is the successor to a whole series of similar acts that have been in force for quite sometime, although the sinister use of such legislation has acquired perfection under the current Bharatiya Janata Party-led government.
The modus operandi of this parallel penal system is as follows. Suppose you are a known critic of the government, or simply belong to a community that the ruling dispensation dislikes; the police come and arrest you under the UAPA for indulging in an anti-national terrorist conspiracy on the purported “evidence” of some letter or e-mail from somebody who could even be a police agent; this “evidence” is then leaked to “friendly” media channels which both claim a “scoop” and build up public opinion against you through systematic slander; you are produced before a magistrate who, because the nation’s “security” is involved, dare not refuse the police their wish to take you into custody; you are refused bail for the same reason; you are tortured and beaten in the effort to persuade you to “spill the beans”, and robbed of your dignity; your trial, like all such trials, drags on ad nauseam, with new charges added from time to time, during which, if at all you are lucky to find a decent lawyer, you are utterly drained financially; and at the end of it all, which may take several years, even if you are released, for the “evidence” against you was flimsy to start with, you live with the stigma of being a “suspected terrorist”, and you have lost several precious years of your life.
I have come across persons who have been incarcerated in this manner, until eventually acquitted, for six, eight or even 10 years, and have been told of cases where the incarceration was as long as for 14 years, which is more than is usually endured even in a sentence of life imprisonment. And nothing happens to the police officers and their bosses who took away these precious years of your life just to satisfy their whims, or just to teach you, and others like you with a dissenting view, a “lesson”.
I am not suggesting that all detentions under the UAPA are of this sort. But such a denouement is perfectly possible and has occurred repeatedly. This has been the experience of numerous Muslim young men in Uttar Pradesh and elsewhere for quite sometime, and of human rights activists in many BJP-ruled states. Now the attack on human rights activists has even reached the capital region of the country from where two of the five activists arrested on August 28, Gautam Navlakha and Sudha Bharadwaj, were picked up by the Maharashtra police.
So habituated have the police become to running this parallel penal system, which should more aptly be called a “rogue penal system”, with no questions asked by anyone including the lower judiciary that is immediately involved, that the Pune police came to Delhi to make their searches and arrests, with documents written in Marathi, which neither the arrestees nor the magistrates could understand; and they brought their own witnesses (panches) from Pune for signing the papers detailing what had been seized during the search operations, thus openly flouting the legal requirement that the witnesses should be independent local persons.
The Pune police’s brazen act of attempted forcible entry into people’s homes initially without an intelligible warrant, arresting them on charges unintelligible to them, and whisking them off to Pune for interrogation, almost succeeded, with the lower judiciary doing its usual rubber stamp act even when it could not read or understand the charges. Three of the five accused were actually taken to Pune, including Varavara Rao from Hyderabad where Marathi could scarcely have been understood. Sudha Bharadwaj and Gautam Navlakha were allowed to be taken away from Faridabad and Delhi respectively by the concerned magistrates. The spanner in the works was thrown by their appeals to the Punjab-Haryana and the Delhi High Courts respectively, which granted them “stays”, and a public interest litigation petition before the Supreme Court by Romila Thapar and four others (including myself).
An important turning point was the Supreme Court’s taking cognizance of our petition, dismissing the argument of the Maharashtra government that being third parties (“strangers”) we had no role in a criminal case, and thereby acknowledging that there were constitutional issues involved relating to individual freedoms and democratic rights. There were several other turning points. The Pune police, which had already leaked supposed “evidence” against Sudha Bharadwaj to a favoured television channel, actually had the temerity to organize a press conference where they disclosed more such “evidence”, flouting the legal rule that when a case is sub judice all documents must first be submitted to the court; the Supreme Court, however, pulled up the police for this gross misdemeanor. The arguments before the Supreme Court stretched over a period of more than one month, during which some of the most illustrious lawyers of the country appeared pro bono for the human rights activists; and during this period the entire country was made aware of the parallel penal system which had developed through the UAPA. Even though the majority verdict of the bench did not favour a special investigation team under the supervision of the Supreme Court, the fact that it extended the house arrest of the accused by four more weeks during which they could seek legal remedies, underscored its refusal to treat the matter as a mere criminal case. The minority judgment by the judge, D.Y. Chandrachud, which vindicated the stand of the petitioners by holding the Maharashtra police incapable of carrying out an impartial probe given their conduct, and suggesting an SIT instead, was another major turning point.
The Supreme Court thus has taken a step towards asserting judicial oversight of the parallel penal system, and thereby restraining this rogue system that has developed. The issue is not just the fate of the five arrested on August 28, or of the others arrested earlier in the Bhima-Koregaon case. The issue is not just the question of individual freedoms and democratic rights. It also concerns the independence, the relevance, and the spine of the judiciary, which the BJP government has been trying to subvert; the parallel penal system is an outgrowth of this.
Of course, as long as laws like the UAPA exist, the potential for such a rogue penal system continues. As many, including the jurist, Fali Nariman, had warned when it was enacted, the UAPA can do more harm to freedom than to terrorism. What is heartening, however, is that the discourse is changing. The petitioners before the Supreme Court have in this sense had an epistemic victory. But unless democratic opinion fights against it ceaselessly, this rogue system will not disappear.
The author is Professor Emeritus, Centre for Economic Studies, Jawaharlal Nehru University, New Delhi