Democracy and Dissent
The arrest of dissenting intellectuals, lawyers, and activists scales a new height in the abuse of law of conspiracy, write Shantonu Sen and N Dilip Kumar
Ominous signs of intolerance are visible. On the horizon of our democracy is blurred but visible bitterness among religious faiths, customs, and differences in political ideology. While bigoted vigilantes are emboldened by the government's supportive silence as they mete lynch justice, dissent is criminal. People are arrested on allegedly manipulated charges of criminal conspiracy by our police at the behest of a democratically elected government. The cross-country arrest of five intellectuals who are academics and activists and the dramatic way they were charged and then deprived of their liberty in violation of Standard Operating Procedures and Human Rights by Pune Police on the 28th of this month heightens the fear of abuse of law by this government. An atmosphere akin to the actions of 'thought police' of the Big Brother in George Orwell's book Nineteen Eighty Four has descended on our democracy. Selective amnesia in protecting their political kin and abuse of law in trampling dissent and opposition has become the new norm of governance. And in the process, Law of criminal conspiracy has become their hand-maiden.
However, the arrest of the dissenting intellectuals, lawyers and activists scales a new height in the abuse of law of conspiracy. Pune Police raided the homes of prominent left-wing activists in several states and arrested five of them – poet Varavara Rao in Hyderabad, activists Vernon Gonzalves and Arun Ferreira in Mumbai, trade unionist and lawyer Sudha Bhardwaj in Faridabad and Chattisgarh and civil liberties activist Gautam Navalakha in Delhi. The raids were carried out as part of a probe into the violence at Koregaon-Bhima village near Pune after a pro-Dalit event called Elgar Parishad on December 31. The arrested dissenters, each with a long record of working with the poor, have been labelled as 'Urban Naxals'. It is openly suggested through print and electronic media that a plot to assassinate the Prime Minister has been unravelled and 'incriminating' documents and close surveillance reveal the arrested activists are a part of this criminal conspiracy. Additional D G Law and Order had held a one hour long press conference on August 31 reading mails, letters, and messages that Pune police link them with the banned organisation. Some of these materials have appeared earlier and have been denied. Be that as it may, the link up of events looks bizarre. Dragging eminent people who have not committed any act of violence or disorder without coherent reasons without credible evidence will throw up charges of intolerance, of dissent, of trampling on civil liberties.
Investigations and arrests go hand and hand. Yet, the five arrests by Pune Police in Bhima-Koregaon episode that took place on the last day of December 2017 has started a fire, a kilo of fat as if, is in the fire. Five arrests in four States, several searches in many more, boorish behaviour at the time of searches and the combined rage of comrade in arms creates an ugly picture by itself. Add remand magistrates being knocked on the knuckles by superior courts and the top court pronouncement on dissent being a safety valve in a democracy, the eternal fall boy, the man in khaki is once again being chastised in front of all and sundry. Sadly, he is beyond help here.
Search and arrests are two vital weapons in our armoury. They have been both used here. What Pune Police have done when exercising their powers to use these weapons is in their records. It is not in public. They may have done all the right things to obtain search warrants and arrest warrants. They must have done also all the right things after leaving their territorial jurisdiction and entering the territory of another State police. Be that as it may, in public, they have fallen flatly on their face and hurt themselves badly.
What has emerged? First, all documents they carry are in Marathi. It is Hebrew and Greek in Haryana, Delhi, and Jharkhand, and while it may be comprehended in some other States like Goa it is not the language of the Court there either. Foolish not to have translations! Secondly, their application for warrants for search and arrest warrant does not show they submitted material evidence or even had material evidence to justify getting either of the warrants. It has been argued by the RSS expert and two former IPS officers, all on NDTV, that the remand application cannot contain reference to material evidence as these must remain under cover till the charge-sheet stage is reached. While that is wholly correct, it is also wholly correct that nothing can be secret from the court. He needs to see the case diaries and all documents and exhibits mentioned therein as evidence in order to be able to pass reasonable and legally correct orders on the prayers for search and arrest warrants. The perception is that material evidence was not shown to the court.
Much more damaging for the police is the critical references to their alleged boorish manner of search. Their collecting books and then shrieking it is useful evidence, making a mess of the place searched, making snide remarks on ladies regarding their ornaments, dress, and occupation; seizing laptops, diaries, notebooks of son-in-law, son, grandson of persons against whom they have warrants of arrest, and dragging the dissenter intellectuals out of their homes – all speak of the unacceptable and unbecoming conduct of a professional police governed by a Standard Operating Procedure and handling a very sensitive case.
Moreover, the search warrant and custodial interrogation eight months after the FIR was registered, prima facie, is a wasted effort. Every police officer knows these are done within days after FIR becomes the start of criminal investigation. The perception that has gone home is both searches and arrests are totally unwarranted. It was done to put the fear of God on activists similarly placed. It is all nothing but brutal abuse of law.
Now, the Supreme Court and the NHRC are seized of the matter of violation of Human Rights and the Standard Operating Procedures in the arrests. The context provides an opportunity to have a relook at the colonial law of criminal conspiracy. Supreme Court's attention may seize on the gross abuse of the law of criminal conspiracy that has been invoked to join these five, living away from each other, distanced by thousands of miles and separated by custom language creed.
On September 6, we will all know the outcome. It does not look as if Pune Police will escape a rap.
(Shantonu Sen is a former Joint Director of CBI and N Dilip Kumar, IPS (retd)
is a former Member, Public Grievances Commission, Delhi. The views expressed
are strictly personal)