The investigating agencies inquiring into the Delhi riots have worked uncompromisingly through the coronavirus pandemic. I doubt officers have had any time for their families, let alone for parables. Here’s hoping they will indulge me, because I see in the Delhi Riots Conspiracy Case the police have come up with clear shades of the Meerut Conspiracy Case of 1929.
It was a little more than 90 years ago that Viceroy Irwin – miffed with the relentless anti-imperialist agitations in India involving everyone from students, workers and peasants – tried to devise some way to cripple the nationalist Indian leadership and certain British socialists whom he was convinced were behind the protests. Secret communications flew thick and fast between the viceroy and the India Office in London, and a new law was proposed to give the government of India the power to remove any political organiser from British India, or even bar left-leaning Indians from travelling abroad so as not to expose them to further ideas.
However, this proposed law, the ‘Public Safety Bill’, was defeated in the Indian legislative assembly in September 1928 because of the concerted efforts of nationalist members. During the assembly debates, Lala Lajpat Rai scoffed at the idea that the special law was necessitated by the presence of two British Communists who had been organising workers’ strikes in support of the freedom movement. It was absurd to suppose that a few men could be instrumental in bringing about such widespread expressions of dissent, he said. Srinivas Iyengar also opposed the Bill on the grounds that ‘no proof had been furnished that the British government was going to be destroyed or Indian society subverted [because of such hartals]. It was the will of a police officer, a district officer or a commercial magnate strong enough to press his view, which the governor-general-in-council accepted without enquiry’.
In the aftermath of this defeat, which was seen as a nationalist victory, the colonial government announced it would reintroduce the Bill in the next session, and followed the announcement with an unyielding, single-minded campaign denouncing the ‘communist menace’ and propagating the idea that the defeat of the Bill was detrimental to the security of the state.
Lord Irwin, for his part, sent another secret missive to the Secretary of State in Britain:
“Although these movements are still in their infancy and may not be a serious menace in India for some little time, nevertheless they contain great potentialities of danger, and we are bound therefore to see what steps can be taken to discourage them while they are weak and prevent anything in the nature of rapid growth. We must consider what we can do in the way of preventing the Indian movement, which by itself is very weak, from receiving any impetus from outside either in the form of money or what is still more important, of brains and organizing capacity […] The Public Safety Bill as you have seen was defeated in the Assembly by the President’s casting vote and I have been carefully considering what lines we should take in the matter. We hope to run a conspiracy case against a considerable number of communists in India.’ [From Sir David Petrie and Sir Horace Williamson, Directors of Intelligence, Unpublished Papers, Edited by Saha, emphasis added]
The conspiracy case was run indeed, for four-and-a-half long years. Jurist and constitutional expert A.G. Noorani says that uniquely amongst political trials even, the stated objective of the ‘Meerut Conspiracy Case’ was not to secure the conviction of the 32 accused, but rather to crush the imminent Civil Disobedience Movement. ‘The accused were to be punished for the beliefs they held; not for any illegal act they had committed.’
The Public Safety Bill was to be reintroduced in the assembly on March 21, 1929. On the evening of March 20, raids were conducted in Bombay, Calcutta, Allahabad, Delhi, Lahore and other places: in houses, trade unions and at newspaper offices. Thirty-two people, members of the AICC and AITUC, the Workers’ and Peasants’ Party, were arrested and tried in Meerut. Although only two of the 32 arrested were from Meerut, it was chosen as the seat of trial by the prosecution in order to deny the benefit of a jury trial to the accused.
The end result, however, was far from satisfactory for the colonial authorities.
Delhi riots and FIR 59/2020
Ninety kilometres and 91 years separate Meerut and Delhi and the two conspiracy cases but it is hard not to miss the similarity between the political impulse behind both.
FIR 59/2020 was filed at the instance of a sub-Inspector, and on the basis of information received from an unnamed police informer. It states that the Delhi riots were planned by certain persons, who used the anti-Citizenship (Amendment) Act (CAA) protests as an opportunity to mobilise the masses against the government of the day. Specifically, it alleges that speeches were given that encouraged people to protest in the streets during US President Donald Trump’s Delhi visit, with the aim to internationally further the ‘propaganda’ that minorities were being oppressed in India.
Normally, FIRs refrain from making political statements. Sometimes, they reproduce the offending speech, verbatim, but it is unusual for an FIR to denounce a political assertion as ‘propaganda’. Whether minorities are in fact being oppressed in India is a political question, or, in specific cases, a judicial one, so it is certainly odd that the FIR pronounces it propaganda and delegitimises the entire protest at the very outset.
The FIR does not mention any invocation to violence in the speeches. Yet, remarkably, it invokes Sections 147 [rioting], 148 [rioting armed with deadly weapons], 149 [being a member of a common assembly and acting in common object] and 120 B [criminal conspiracy], thus treating all anti-CAA protestors (and all protests across India) as a single collective rioting agent, while never once explicitly alleging that the protestors rioted.
There is a single reference to information being received that certain homes in northeast Delhi had stored firearms, petrol bombs, acid and stones, but there is no obvious connection of these homes with the protest. Even if the allegation were that some of these homeowners had attended the protests, it is not clear why their individual culpabilities in their homes would turn the entire protest into a rioting collective.
Derren Brown is a fascinating ‘mentalist’, or illusionist: he can manipulate any audience into thinking in a particular way. He says he does it by subtly and repeatedly inserting an idea into their heads. Thus, if at the beginning of a show he refers to someone as a ‘troublemaker’, and casually continues to do so during his act, he can get his audience to react to that person in a particular way by the end of the show.
FIR 59/2020 turns the protestors into rioters in peoples’ minds, without alleging any instance of collective violence by the assembly. The fact of the assembly itself is treated as an offence.
The FIR records that women and children deliberately blocked the road outside the Jaffrabad metro station, inconveniencing others and adding to the tense atmosphere, such that riots broke out. It is silent on who was apparently so provoked by the protestors that they felt that violent action to clear them out was justified. It does not attribute any violence to the protestors at Jaffrabad, but it implies that blocking the road and inconveniencing others was ‘violence’ in itself, which led to retaliatory action by others.
There was a time when the familiar trope for orchestrating a riot was slaughtering a pig and throwing it outside a mosque; or leaving a bag of meat in a temple; or pelting stones at a religious place or a religious gathering. Each of these actions, deliberate attempts to provoke communal violence, were offences in themselves.
FIR 59/2020 has successfully changed that trope by equating the anti-CAA protests with such provocation, proclaiming the protestors collectively as rioters, and suggesting that minority dissent to an idea that has popular support otherwise is in itself, a provocative act, and good reason for the outbreak of riots. In its silence on those who actually retaliated violently to the protests, it treats them as automated bots responding to ‘protest provocation’, and seems to find no reason to go into their individual and active roles.
The FIR also doesn’t look at the ‘charged circumstances’ as a gradual build-up: what accentuating circumstances turned the protests into a hateful thing for non-participants? It is not common in our country for any section of people to feel provoked by any other group – or indeed by the government – for merely having been ‘inconvenienced’. What was the role of certain leaders, or that of the media, in turning the protestors into monsters? What were the omissions, if any, on the part of the administration and the police? FIR 59 rather treats the fact of the protests as an apriori reason for retaliatory violence.
Be that as it may, it is altogether possible for any peaceful protest to become disorderly at any given moment, due to extraneous circumstances, or from a generally charged atmosphere.
While the constitution of India guarantees the right to assemble peacefully under Article 19(1)(b), this right is subject to reasonable restrictions in the interest of the sovereignty and integrity of India and of public order. If a public assembly has the potential of becoming unruly, or causing others to become unruly, the police have the responsibility to disperse it using minimal and proportionate force.
Section 141 of the Indian Penal Code says that an assembly may be designated an ‘unlawful assembly’ if it commits any criminal trespass, or any other offence, or if it deprives any person of the right of way, etc. An assembly that was not previously lawful may be designated ‘unlawful’ with changing circumstances.
Upon such designation, if a breach of peace seems imminent, the Code of Criminal Procedure (CrPC) and the Police Manuals describe a detailed code of conduct, which includes involving officers of the administration to persuade the protestors to disperse, followed by warning, and then application of minimal and proportionate force [Sections 129 and 130 of the CrPC The police also have the right to detain members of the unlawful assembly during the process of dispersal, or to preventively detain its leaders].
Post-facto prosecutions are possible, too: Sections 142 to 145 of the Indian Penal Code describe offences that range from knowingly being a member of an unlawful assembly, to being present in an unlawful assembly while armed with a deadly weapon, which, when used ‘as a weapon of offence’, is likely to cause death. All these offences are cognizable and bailable.
FIR 59 does not frame the alleged unruliness in terms of applicable law, which assesses the unlawfulness of an assembly ‘in the moment’. It frames it in terms of ‘a deep-rooted conspiracy’: of political action that opposed the CAA, and was implicitly ‘seditious’ and provocative, and which must, therefore, be the focus of all investigations relating to the riots.
There have been several arrests, some even under the Unlawful Activities (Prevention) Act (UAPA), mostly of students and activists involved in the protest. Many others have been summoned, amongst them writers and teachers, art workers and filmmakers, people who are otherwise called ‘intellectuals’, purveyors of new ideas.
In investigating the intellectuals, the police are really investigating their ideas. ‘Why do you oppose the citizen amendment act? Why do you support street protests that inconvenience people? Why were you actively mobilizing people in support? What do you want so much ‘azadi’ for? You people have been allowed too much freedom in the past.’
It is not unknown for the police to question political ideas; however, the ‘midnight knock’ is associated with authoritarian regimes. In India, on the other hand, the constitution has allowed for loud political dissent. Even protests that embarrass the government of the day have ordinarily not been subject to investigative scrutiny under special acts.
Mobilising support for a political idea is a democratic process, even when it seeks to rupture or dislodge a prevailing discourse. In my experience, I’ve seen the Babri masjid-Ramjanambhoomi movement redefine Indian selfhood, significantly rupturing previously held notions. Politically, and peacefully, it is not illegal to mobilise even to make the polity ‘mukt’ from a certain party or ideology (although to make it ‘mukt’ of a people would amount to hate speech/ genocide). It is not a ‘shadowy conspiracy’ to suggest that the government of the day is apathetic to a section of the population. Those claims have often been made: most forcefully, in fact, by the ruling party in its assertion that the incumbents practised appeasement and neglected the majority.
The contours of a penal offence, as different from dissenting politics, are very well defined. Demonstrations and street protests are not in themselves seditious or dangerous. If they block traffic, they may be dealt with under applicable sections of the Penal and Criminal Procedure Codes. What is indeed an offence is a direct call to violence at such a demonstration and a causal and immediate link between the speech and actual violence.
The Tilak sedition trial
FIR 59 has, in fact, moved the clock even further back than 1929, to Bal Gangadhar Tilak’s sedition trial of 1897. In Tilak’s trial, the presiding judge, Justice Strachey, expanded the meaning of sedition, from violently inciting people against the government, to include general lack of affection for it. Thus any show of bitterness, or suspicion, or any speech or writing that might encourage others to like the government any less was termed seditious. Tilak was sent to jail for writing against the Epidemic Diseases Act, 1897, promulgated during the Bombay plague, which gave the British administration wide regulatory powers over the local population.
The post-independence Indian Supreme Court, on the other hand, categorically rejects that forceful discursive criticisms of the government and its policies are bases for sedition. It has employed the ‘spark in the powder keg’ test, which denotes speech or action that is as immediately incendiary as a lit fuse (chanting ‘goli maro…’ in close proximity to, and with reference to a group of people; and if soon thereafter somebody actually fires on a representative sections of that group, for instance). FIR 59 on the other hand, implies an ‘embers in the wind’ theory: it criminalises sustained criticism of the government, ostensibly on grounds that this has the potential to cause disaffection. Unfortunately, the claim has no basis in law.
In its construction of the anti-CAA protests, FIR 59 is not neutral. It takes the position that these political protests were based on misrepresentations, were anti-state and treacherous. By doing so, it criminalises arguments around minority rights and against the CAA; it makes suspect any kind of protest against the government, and it normalises the humiliation of scores of teachers and students when they are summoned to police stations and interrogated for their participation in the protests. FIR 59 makes believable even the most absurd, uncorroborated allegations about the grave ‘conspiracy’ of the protests, and thus equally acceptable that the police should take several extensions on the submission of the chargesheet – the substantiation of the allegations in the FIR – while accused wait in jail.
Back to the future
To come back to the Meerut Conspiracy Case, the investigations produced 25 printed, folio-sized volumes of documentary evidence. Three thousand five hundred prosecution exhibits and about 320 witnesses from across Britain and India sought to prove the political activities of the accused and their associations with each other. It was officially announced at the end of the trial that the process had cost 126,000 pounds.
However, at the end of proceedings in 1933, the high court let off the accused with minimal sentences. It also so happened that over the four-and-half-years, the proceedings attracted a lot of sympathetic interest in the political issues at hand, both in India and abroad. There was an outcry in the British press and parliament: the conservative government even lost the general election of May 1929. Neither was the anti-colonial political movement seriously affected, apparently because it had mass appeal, beyond its few organisers who had been arrested.
It has been said that the process left Lord Irwin and also the Secretary of State quite ‘disillusioned’. The Lord wrote to the Secretary ‘that he wished to heaven he had not embarked on the Meerut Trial’, and the Secretary of State confided that he would be ‘devoutly thankful when the whole thing is over and done with.’ Lord Irwin’s successor, Viceroy Willingdon declared summarily that he would ‘pretty well assure that there were no more of the terrible conspiracy cases while he was Viceroy’.
As the Delhi conspiracy cases drag on, will their architects similarly wish they never went down this path?
Shahrukh Alam is a lawyer practising in New Delhi