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Remembering the Constitution's Imprisoned Defenders on the Day the Constitution Came Into Effect

The saga of the 18 people slapped with 'sedition' and terror charges over anti-CAA protests after the Delhi riots does not sit comfortably with the belief that all Indians are equal before the law irrespective of their faith and beliefs.

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India’s Republic Day, with all its pomp and celebratory zeal, should be an occasion to also highlight the plight of the Delhi 18, the group of young students and activists, many of whom are in jail for staging protests against the Narendra Modi government’s laws that recast the inclusiveness of Indian citizenship laws.  

Sedition and other charges have been invoked against: Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha, Gulfisha Khatoon, Ishrat Jahan, Safoora Zargar, Meeran Haider, Shafa-Ur-Rehman, Tahir Hussain, Khalid Saifi, Shadab Ahmed, Tasleem Ahmed, Salim Malik, Mohammad Salim Khan, Athar Khan, Sharjeel Imam, Faizan and Umar Khalid.

These two events – Republic Day, when the Constitution of India was formally operationalised, and the protests against the Citizenship (Amendment) Act that directly discriminates against Muslims – are linked. 

The Delhi 18 were in effect protesting to retain India as a secular nation, which was one of the main achievements of the movement to end British rule. While there have been periodic attempts to undermine the legal standing of India’s secularism, a 1994 Supreme Court case reconfirmed the fact that India has been secular since the formation of the republic. 

Most of the Delhi 18 have been in jail for more than 20 months for the leading role they played at the end of 2019 organising the peaceful mass protest movement against Modi’s citizenship law. These actions encountered pro-government counter protests that backed the new law. Alarmingly these forces received strong police support.

Also read: Delhi 2020 | The Real Conspiracy, Episode 1: What the Delhi Police Chose Not to See

These developments reached an ugly climax in February 2020 when the northeast of Delhi, home to a large Muslim community and a number of anti-CAA protest sites, was attacked by mobs. More than 50 people were killed and higher numbers of Muslim homes, schools and businesses, as well as mosques, were destroyed. Video evidence showed the police failing to stop the attacks and on some occasions participating in the violence. In the period just before the outbreak of this violence BJP politicians and Hindutva figures spoke at events where they incited hatred of Muslims.

United Nations experts, in a statement released by the Office of the High Commissioner for Human Rights, detailed their concern that the official response to the protests seemed discriminatory. There were reports that supporters of the citizenship law incited hatred and violence and chanted “shoot the traitors” at their rallies. The experts reported that it appears these allegations were not investigated by Indian authorities.  

Amnesty International India and the Delhi Minorities Commission did conduct investigations. They found that the  police committed serious human rights violations, including complicity in attacks by Hindu mobs on Muslims, and that they engaged in incidents of brutality.  

However, no police officer or politician has been held to account. Rather it is the Delhi 18 that are being prosecuted for a number of serious charges including alleged acts of terrorism. All of those presently in jail without bail are Muslims. 

The treatment of the Delhi 18 is becoming a growing scandal in India not only because the new law is part of the Modi government’s Hindu-nationalist agenda, but also because of the violent state response to the anti-CAA protests. 

Tragically for the young people being so mistreated under the Unlawful Activities (Prevention) Act, the peaceful activities of the Delhi 18 that should be protected by state laws and law enforcers, are being painted as violent terrorist activity.

Police are using the punitive UAPA to target the accused.  In recent years, there has been a big increase in the number of students, journalists and community activists charged. Government figures reveal that in 2019, 1,948 people were arrested under the UAPA compared to 1,128 in 2015. 

Also read: Explainer: How the Sedition Law Has Been Used in the Modi Era

Many human rights organisations are critical of the UAPA for undermining civil society freedoms. The Office of the United Nations High Commissioner for Human Rights has raised concerns about the “sweeping counter-terrorism measures” of the legislation. The UAPA enables people to be detained without the police having any incriminating evidence and it makes it near impossible for those charged to be granted bail.

Similar concerns are being taken up within India. Opposition to the UAPA is building around the way it is misused to target critics of the BJP forces. Anjana Prakash, a former judge of the Patna high court has stated that “the UAPA over the years has degenerated into a lethal weapon to quell dissent … it is time for the government to redeem itself and repeal that UAPA in national interest.” 

The impartiality of Delhi police and their political backers will come under greater scrutiny when the cases come to court. 

It took Amit Shah, who as Minister of Home Affairs is in charge of the Delhi Police, nearly two weeks to break his silence about the attacks on Muslims in northeast Delhi. He offered profuse praise to the police despite numerous media reports about how the Delhi Police failed to contain the violence and in some incidents stood by while groups of men burned down houses and shops of citizens. 

The legal system the accused have to contend with is loaded against a fair trial. Analysis by lawyers and legal experts have found that some defendants have had their statements doctored and in some cases the police have refused to provide charge sheets to the accused and their lawyers. Police have also had to be restrained from leaking documents to the media – an action that before it was curbed was encouraging trial by media, which could have endangered witnesses.  

Muslim members of the Delhi 18 have reported incidents in jail of discrimination and restrictions on their movement, allegedly for security issues, which effectively results in solitary confinement. Many of the accused have complained to the court about denial of access to medical services and certain basic essentials. 

Also read: Backstory: Why Umar Khalid Is in Jail and Other Tales Spun by Media Disinformation

It is understandable that in India today the rise of extremist Hindu nationalism has made citizenship one of the central drivers of political mobilisation.

The saga of the Delhi 18 does not sit comfortably with the belief that all Indians are equal before the law, irrespective of their faith and beliefs, and that therefore they should enjoy the same citizenship rights. These contradictions will be in even sharper focus on India’s Republic Day, when the Modi forces will try and paper over the deep animosity they are fostering towards Muslims and other minorities. 

There is a long tradition within India and amongst the Indian diaspora to find progressive solutions to challenges at home and abroad. With regard to the future of citizenship and civil liberty issues that should mean the repeal of the CAA and the draconian UAPA. A top priority must also be the dismissal of all charges against the Delhi 18 and the immediate and unconditional release of the 13 still in jail. 

When these demands become achievements, Republic Day will be a proud day that Indians can all celebrate.

Lee Rhiannon is a former Australian parliamentarian. Rhiannon has a long history advocating for human rights through her community and parliamentary work. She is deeply troubled by current trends in India that are damaging the secular and democratic values the nation was built on. In her post parliamentary work she works closely with members of the Indian diaspora advocating for progressive solutions to these challenges.