The Court Should Not Have to Bow Before the Unreasonableness of the UAPA

It was the ridiculousness of the charges, the doubtful nature of the evidence and the public character and reputations of the people arrested, that made it clear that the entire sequence of events is an attempt to stifle voices of dissent in a particularly diabolical manner. Thus, acquital is the only just option.

Consider the following hypothetical scenario. A certain agent, private or state, wishes to put you in trouble. This agent creates an email account on the Internet, using a fake name and writes you an email addressing you not by your own name but by some other, mentioning some plausible sounding names of other people, some events which you may have attended to give an air of authenticity and talking darkly about disturbances and terrorist activities, possibly suggesting that you are helping the writer of this email in procuring arms, money, or other such activities. Or perhaps writes a similar email to someone else, purporting to be you, from a fake email account, with similar content.

Going by the public arguments made by the Maharashtra police, or arguments made in court by the very senior lawyers that represent the government, this fake email will be enough to negate your entire history, because it’s presence must be taken on face value as evidence that the addressee, or the purported writer, is involved in the activities hinted at. It does not matter that nobody knows who wrote the email, it is not clear who it is addressed to, there is no evidence that the person it is addressed to has done anything illegal at all. Surely an easier, and more Kafkaesque way, of falsely implicating anyone has not been invented!

On August 28, the Maharashtra police raided the houses of several activists and arrested five individuals from different parts of the country: Gautam Navlakha, Sudha Bharadwaj, Vernon Gonsalves, Arun Ferreira and Varavara Rao. In response, Romila Thapar and other prominent intellectuals filed a petition in the Supreme Court, praying for its intervention and the court directed that the arrested people be placed under house arrest while it considered the matter and weighed the evidence. From press conferences held by the Maharashtra police, as well as what was argued in the court, it appears that the case rests on a few emails, 13 of which were released by the police to the press, with much fanfare, before they had been placed before any court. In fact, one of these emails appears to have been leaked to a TV channel even before the arrests.

These events had been preceded several weeks previously by the announcement of another email purported to have been recovered from another leftwing activist, Rona Wilson, who had been arrested along with four others – the lawyer Surendra Gadling, the cultural activists Sudhir Dhawale and Mahesh Raut and the academic Shoma Sen.

Weirdly, these arrests were made as part of a probe into a violent attack by an upper caste mob on a Dalit gathering on January 1 this year, and in a Kafkaesque twist, the police claimed that the violence had been instigated by these left-wing activists. This email became an instant media sensation because it seemed to suggest that the Maoists were cooking up a plot to assassinate Prime Minister Narendra Modi.

These emails have been analysed at length in other places, and even security analysts have shown little doubt that they are doctored or fabricated. The email purporting to show evidence of a plot to assassinate the prime minister was deconstructed at length by senior journalist Prem Shankar Jha a few months ago (and even the Shiv Sena made fun of it). The use of Marathi words by people who don’t speak Marathi, the fact that some of the emails are supposed to be written by Prof Saibaba when he was actually in jail, are just two examples of the sloppiness of the fabrication, and have been pointed out before.  The emails appear to suggest a “sprawling improbable fantasy”, that includes Christian missionaries, Congress leaders and the 76-year-old French Marxist philosopher, Etienne Balibar!

It was the ridiculousness of the charges, the doubtful nature of the evidence and the public character and reputations of the people arrested, that made it quite clear that the entire sequence of events is an attempt to stifle voices of dissent in a particularly diabolical manner. In fact, if the events so far revealed anything, they do suggest that there does exist a conspiracy to subvert the Constitution – emanating not from the jungles of Bastar, but far closer to the centres of power.

How plausible is the scenario I sketched in the first paragraph? Well, something like this just happened around the same time the Pune police embarked on its nationwide raids. The story concerns the claims of discovering high temperature superconductivity by scientists at the Indian Institute of Science at Bangalore, and the entire story, not yet settled, makes for fascinating reading in the twitter feed of Brian Skinner, a postdoctoral researcher at MIT. I will just quote the relevant sentences for my purpose here, that show that fake emails are not hard to generate:

Today PR [Professor Pratap Raychaudhuri] received an email from his famous and distinguished colleage (sic)TVR [Professor T.V. Ramakrishnan], asking him to not criticise Thapa and Pandey (the authors of the original paper) and to be patient. At the bottom of the email was a forwarded friendly discussion between TVR and Pandey. PR replied with a “rather strong response” to TVR, including a cc to TVR’s personal email address. Shortly thereafter, he got a phone call from TVR. It turns out that TVR had never written any such email. Both the email asking PR not to criticise the authors, and the supposed discussion between TVR and Pandey were fabricated by someone pretending to be TVR.

One wonders if the creative artist who fabricated the emails that seem to form the basis of the arrests of the five activists was inspired by this story, perhaps even could be a science buff! Or perhaps the inspiration came from the brilliant satirical Marathi film, Court, whose most fantastic moments eerily foreshadow these events. Though he or she certainly did a very poor job, the fact remains that even if the fabrication had been less sloppy, sending fake emails is one of the easiest things to do. We are all victims of it in other ways, since email scams have become part of daily life for those who use this mode of communication regularly. It seems that one new email scam has been added to the list of those that we all must already beware of.

Why should something as thin and flimsy as this have to lead to the incarceration of anyone? The answer of course is that the state believes that the UAPA gives them that power. Others have written at length about the draconian powers that the UAPA confers on the state, so I will just quote the lawyer Gautam Bhatia’s sharp critique of the law in the Hindu:

Much has been written about the UAPA’s draconian procedures: pre-charge sheet detention for up to six months, the near-impossibility of getting bail, and the inordinate length of an average trial, effectively leading to years of incarceration before a final acquittal. The problem with the UAPA, however, is not simply the manner in which it sanctions the long-term deprivation of personal liberty even before an individual is found guilty. Equally seriously, what the UAPA deems criminal is phrased in such broad and vague terms that a finding of guilt or innocence itself entails an extraordinary amount of discretion.

The government has argued before the Supreme Court that the law must be allowed to take its course and the Supreme Court can’t interfere. But here’s the rub. If all it takes are fake emails to incarcerate someone for years, then the governments interpretation of the discretion that the UAPA supposedly allows it are clearly violating the fundamental rights that the Constitution guarantees all citizens. Liberty cannot be denied on such flimsy grounds.

In my view, the petition by Romila Thapar and others before the Supreme Court is based on this straightforward and simple argument. It points out that very flimsy – and prima facie, even fake – evidence is being used to incarcerate activists by misusing the discretion that the UAPA allows the police and the government. Thus, these countrywide raids and arrests are a threat to democracy, the petition argues and it prays that the Supreme Court intervene to stem this threat.

The power of this false case rests entirely on the provisions of the UAPA, but the UAPA does not supplant the Indian Constitution, and its existence does not mean that judicial scrutiny ceases to exist. Can allegations, conjectures, doctored emails be accepted as evidence enough to incarcerate someone for months? If yes, then the fundamental rights guaranteed to us have no meaning. If evidence this flimsy can be used to incarcerate someone for months, then as the petition argues, none of us are safe. And this is not just true for left-wing activists currently being targeted by the state.

This sets a precedent for the misuse of UAPA against anyone by the party in power, even BJP activists under another government for example. The fact that the UAPA appears to allow this monstrosity is no reason why the Supreme Court should accept it. As the arbiter of the constitution and the protector of our constitutional rights, the court has the right to prevent this misuse of the Act, by acquitting the arrested activists and setting down limitations on the “discretion” the state believes it enjoys. There is no reason for the court to have to bow before the unreasonableness of this law.

Ashok Prasad is an engineering professor in a US university and a former activist with the PUDR. The views expressed here are his own.