What we are seeing now in the proscription of words does not aim at establishing an unquestionable nation-state, but rather its exact opposite – a provisional nation-state.
In an 827-page judgment earlier this month, the Gadchiroli sessions court sentenced G.N. Saibaba, Mahesh Tirki, Pandu Narote, Hem Mishra and Prashant Sanglikar to life imprisonment for their alleged links with the banned organisation, CPI-Maoist. The sentencing rides on the deliberate vagueness of the Unlawful Activities (Prevention) Act (UAPA) and its ability to marshal charges of ‘criminal conspiracy’ against mere ideological sympathy for proscribed political beliefs. An earlier Supreme Court judgment (Indra Das vs. State of Assam, 2011) that said “membership of a banned organisation would not make a person criminally liable unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”, was brought up by the sessions court only to be overruled by the contravening powers of the UAPA. Anti-secession and terror laws like the erstwhile Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act, 2002 POTA, though repealed now, have retained a sanctioning within the amendments appended to the UAPA.
A short history of the Act
Promulgated in 1967 and pitted against the constitutional right to freedom of speech and expression, the UAPA can effectively annul the very possibility of dissent. In enshrining prevention as a valid premise for ‘when necessity may know no law’, constitutional democracy is made to internally rest on a ‘state of exception’ for the withdrawal of individual liberties.
The state of exception is not always marked by a sovereign act of law, such as the ceremony of ‘imposing’ an Emergency in 1975 did. But it can, in its cunning, empower Acts like the UAPA to send out a message of the ‘strong state’s strong laws’ and use the logic of prevention to install a permanent state of exception. It is in fact this legal mandating of prevention which is far more dangerous to democracy than an order to censor and curb could ever be. Using a prophetic license, there is an attempt to stem the pre-visible processes that mark thought, and in that thwart democracy’s very premise.
At a time when the saying of a word – azaadi – constitutes the ambit of the criminal, what is at stake is not merely the idea of free speech, but the very capacity of language to hold meaning. It is the fundamental communicability of thought – the condition of being able to speak to an other – that marks the life of democracy. What we see now in the proscription of words/beliefs does not aim at establishing an unquestionable nation-state, but rather its exact opposite – a provisional nation-state. It thrives on converting every exercise of power into a moral claim, and in the process institutes separate demands of justice from devotees and dissenters.
Who is and isn’t exempted
Ironically, Section 2(p)(i) of the UAPA has for its object “any activity which is punishable under section 153A or section 153B of the Indian Penal Code (IPC), or which encourages or aids persons to undertake any such activity”. These sections of the IPC deem as criminal offence any attempt to promote “disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”. Through internal citation therefore, the Act mandates as ‘unlawful activity’ not just the routine content of hate-speeches owned by the current chief minister of Uttar Pradesh, but also much of what accounts for the political history of Hindutva. By threatening mass-deportations of dissenting civilians and organised violence on religious minorities, doesn’t Adityanath challenge the very “sovereignty and territorial integrity of India” that the legislative fiat of the UAPA seeks to protect? Isn’t he – who now speaks of “bringing back law and order” into an Indian state – himself liable to be charged and convicted by the very letter of the UAPA?
What happens instead is a routine application of the UAPA’s draconian codes on writers, activists, journalists and civilians who dare to speak up against the democratic deficit of the state and its atrocities on people in Kashmir, Chattisgarh or the North-East. For example, very recently, political activists associated with a peasant movement in Bhangar against the West Bengal government’s attempted land acquisition have been arbitrarily slapped with charges under the UAPA and remanded in police custody.
Saibaba, a wheelchair-bound professor of Delhi University, has been convicted (along with the five other accused) under several sections of the UAPA for “possession of naxal literature, pamphlets, letters, correspondence, audio-video, electronic materials which were to be used for inciting the people to create violence to cause public disorder” (S.C. No. 13/2014 and 130/2015, p.3). Ridiculously, the physical description of the incriminating evidence recovered from Saibaba’s residence includes, among other publications, a “red coloured book”! One is left wondering if, in the exact terms of the UAPA, the colour of a book’s cover is enough to “advocate, abet or incite the commission of unlawful activities” and therefore warrants the punitive-preventive logic of censorship. Does the colour of the yogi’s uniform then ensure impunity from the ‘unlawful’?
Saibaba has been the vice-president of the Revolutionary Democratic Front of India, an organisation that has misguidedly found easy conflation with the banned CPI-Maoist. It is important to recall a 2010 Tehelka article written by him, decrying the capture and killing of Lucas Tete, a policeman, following a Maoist ambush in Lakhisarai. In the article’s very titular demand, ‘Revolutionaries do not kill policemen. The Maoists have to come up with a policy on this’, there is a clear rejection of Maoist violence. This is a crucial act of disavowal from Saibaba’s recent history that the judgment cannot afford to bypass, even as the paranoias fomented by the UAPA wilfully elide factual histories.
The absurd legal reasoning behind this judgment
A close look at the Gadchiroli judgment betrays the absurdity of legal reasoning and the extent of its flawed nature, the infirmities in the trial proceedings, the judge’s utter disregard for the defence arguments as well as the sheer fragility of the prosecution’s case. The text of the judgment – in its sprawling richness of detail – not only makes the verdict seem grossly in conflict with the particulars of the case, but also undercuts its own legitimacy by listing out every minute discrepancy that it eventually chooses to overlook.
The selection and statements of panch witnesses in the investigation procedure repeatedly betray the police’s attempts at tutoring them. Section 100 of the Code of Criminal Procedure ordains that for any search of an accused in a closed place, it is mandatory for the investigating officer to “call upon two or more independent and respectable inhabitants of the locality” to act as panch witnesses – and in the presence of whom the panchnama must be prepared and ratified. The two different panchas called upon to testify to the seizure of “audio-video, electronic” evidence from Hem Mishra and Saibaba even admitted in court that they had “no personal knowledge about digital storage media” and could not tell the difference between a pen-drive and a memory card. Yet, the panchnamas that they were made to sign claimed the confiscation of objects like “16 GB memory card of Sandisk company”, “hard disks”, “CDs of Moserbaer company”, “pen-drive of Sony company”, etc. While one of the panch witnesses – a subsequent home guards recruit – had since been acting as panch on several occasions at the Aheri police station, the other was an ‘illiterate’ barber by profession who could not read or write any language except for signing his name in English.
Clarifying legal requirements for the reliability of panch witnesses, the Bombay high court judgment in Simon Kaitan Fernandez vs State of Maharashtra (1951) warned that “the very fact that a man constantly acts as a panch may lead to the inference that he is easily available to the police and he would be prepared to be amenable to their influence.” It also stressed the need to consider the panch’s “status and position in life,” because the working poor are more likely to be threatened and intimidated by the local police into acting as pliable agents.
During cross-examination, the panch witness provided by the Maurice Nagar police station confessed that he had been locked outside of Saibaba’s house (along with Saibaba and his wife) through the duration of the search. Though there were other professors and students gathered outside the residence, none of them was allowed to enter the premises or act as panch witness while 40 to 50 policemen conducted a raid inside. Disregarding the presence of several teachers on the spot, the self-admittedly ‘illiterate’ panch witness was summoned in to sign on the panchnama after the contents of it were dictated out to him. The investigating officer, Suhas Bawche, not only confessed that the severally recorded videos of the search proceedings were lost and cannot be produced in court, but also that electronic devices were not enlisted by their unique identification number (UIN) and that sealing labels (containing police and panch signatures) were never mentioned in the panchnama. Despite such glaring inconsistencies – absence of best evidence, possible planting and tampering of seized property, violation of search procedures, contradictory statements made by the panch witness, falsification of objective evidence (like the number of doors to Saibaba’s residence) – the judgment goes on to ignore the self-vitiating grounds of the case as “special circumstances”.
The state of exception resides in these “special circumstances” that stand in for the new normal circumscribed by the paranoias of the UAPA. This is the point where the rule of law and the order of justice fade into the shadow of the inexplicable – another name for the ‘special’. We lose sight of the wily manipulations within law itself, as the moral charge of ‘prevention’ perceives danger in every dream, and terror in every turn towards a thought.