On May 20, 2014, Shyam Balakrishnan was stopped by an anti-Naxalite police squad, while riding his bike in the forest area around Vellamunda in Kerala. He was taken into a police jeep and interrogated, and his phone and laptop were taken from him for verification. Eventually, he was released unconditionally. Balakrishnan sued the police for wrongful arrest. Last week, the Kerala High Court ordered the state to pay him Rs one lakh in compensation.
Anti-terror laws
Others have not been so lucky. The Akshardham Six and the Hubli Seventeen spent eleven and seven years in jail respectively, before being acquitted of all charges. Examples like these abound. The cause of all these ruined lives is a set of stringent anti-terror laws, such as the (erstwhile) Prevention of Terrorism Act and the Terrorist and Disruptive Activities (Prevention) Act, and the (current) Unlawful Activities Prevention Act.
With its strikingly broad and manipulable substantive provisions – it criminalises mere membership of unlawful organisations – the UAPA makes incarceration at the behest of the police and the magistrate unconscionably easy. Simultaneously, in creating a near-impossible threshold for the grant of bail, it renders any hope of being set free during years of pending trial all but illusory. This makes proceedings under the UAPA a serious threat to the rule of law, to the principle of "innocent until proven guilty", and to personal freedom.
It is of signal importance, therefore, that in his judgement granting Balakrishnan compensation, Justice Muhamed Mustaque made the following observation:
It is important not only because it helped to decide the case in favour of Balakrishnan and against state excesses, but also because with this observation, the Kerala High Court has added to a growing body of Indian jurisprudence, which is beginning to push back, ever so gradually, in favour of individual liberty and against state overreach in the name of fighting terrorism.
The famous Italian philosopher, Giorgio Agamben, recently argued:
Agamben points out that under the national security paradigm, what were originally thought to be extraordinary laws meant to deal with temporary, extraordinary situations, have gradually become part of the “normal technique of government”.
Extraordinary laws
The Indian trajectory largely affirms Agamben’s thesis. While both POTA and TADA were temporary – the former repealed, and the latter allowed to lapse – the UAPA has, over the last seven years, become an ineradicable feature of India’s legal landscape. As its supposedly exceptional departures from the basic norms of fair trial enshrined in the Code of Criminal Procedure and the Evidence Act have become normalised, the identity of those unlucky enough to be caught in its snares has been reduced to the “unnameable and unclassifiable”.
In such a situation, it is only the courts – the last bastions of individual rights against overwhelming State power – that can provide sanctuary to the victims of this permanent state of exception. “Amidst the clash of arms, the laws are not silent” – so wrote the great British judge, Lord Atkin, at the height of the Second World War. And fortunately, the Indian courts have not been silent.
Judicial pushback
The pushback began in a 2010. In a case called Vishvanath vs State of Gujarat, the Gujarat High Court released on bail various individuals who had been charged under the UAPA of subscribing to Maoist ideology, on the basis that certain “incriminating material” (such as books and documents) had been seized from them. Justice Dave observed:
The next year, in early January 2011, the Supreme Court followed suit in State of Kerala vs Raneef. Granting bail to a doctor who was charged under the UAPA for allegedly providing medical aid to terrorists, the Supreme Court firmly rejected the contention that our Constitution allows a theory of “guilt by association”.
This idea was refined a month later in Arup Bhuyan vs State of Assam. Interpreting a provision of the TADA, which like the UAPA, criminalised “membership” of terrorist organisations, the Supreme Court drew a crucial distinction between “passive membership”, which could be simply supporting or sympathising with the goals of an organization, and active membership, which involved actual incitement to violence. In order for provisions criminalising membership to remain consistent with the guarantees of free speech and association under Article 19 (1) of the Constitution, Justice Katju restricted the scope of those provisions to only active members, who were themselves involved in violence, or incitement to violence.
The impact of Arup Bhuyan upon individual liberty was directly felt a year later, when Justice Thipsay at the Bombay High Court invoked the distinction between active and passive membership to grant bail to a number of people accused of being members of the banned Communist Party of India (Maoist), and who had already spent a year and a half on jail without trial having even commenced. Justice Thipsay held:
The Kerala High Court’s judgement is a welcome addition to the small – but growing – list of judicial verdicts that are gradually erecting a wall between the creeping power of anti-terror laws, and individual liberty. These judgements affirm that freedom of speech and association are sacrosanct, that thought crime is no crime, that the Constitution does not punish ideology, and above all else, that a decent society does not ruin human lives through years of pre-trial incarceration, when there is not even a hint of the accused having committed violence, or instigated anyone else to do so. We can only hope that the examples set by Justices Dave, Katju, Thipsay and Mustaque will, sooner rather than later, become established judicial and constitutional wisdom.
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Anti-terror laws
Others have not been so lucky. The Akshardham Six and the Hubli Seventeen spent eleven and seven years in jail respectively, before being acquitted of all charges. Examples like these abound. The cause of all these ruined lives is a set of stringent anti-terror laws, such as the (erstwhile) Prevention of Terrorism Act and the Terrorist and Disruptive Activities (Prevention) Act, and the (current) Unlawful Activities Prevention Act.
With its strikingly broad and manipulable substantive provisions – it criminalises mere membership of unlawful organisations – the UAPA makes incarceration at the behest of the police and the magistrate unconscionably easy. Simultaneously, in creating a near-impossible threshold for the grant of bail, it renders any hope of being set free during years of pending trial all but illusory. This makes proceedings under the UAPA a serious threat to the rule of law, to the principle of "innocent until proven guilty", and to personal freedom.
It is of signal importance, therefore, that in his judgement granting Balakrishnan compensation, Justice Muhamed Mustaque made the following observation:
“Being a Maoist is no crime, though the political ideology of Maoists does not synchronise with our constitutional polity. It is a basic human right to think in terms of human aspirations… therefore, Police cannot detain a person merely because he is a Maoist, unless Police forms a reasonable opinion that his activities are unlawful.”
It is important not only because it helped to decide the case in favour of Balakrishnan and against state excesses, but also because with this observation, the Kerala High Court has added to a growing body of Indian jurisprudence, which is beginning to push back, ever so gradually, in favour of individual liberty and against state overreach in the name of fighting terrorism.
The famous Italian philosopher, Giorgio Agamben, recently argued:
“the voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones… radically eras[ing] the legal status of the individual, thus producing a legally unnameable and unclassifiable being. Neither prisoners, nor accused, but simply detainees, they are the objects of a pure, de facto rule.”
Agamben points out that under the national security paradigm, what were originally thought to be extraordinary laws meant to deal with temporary, extraordinary situations, have gradually become part of the “normal technique of government”.
Extraordinary laws
The Indian trajectory largely affirms Agamben’s thesis. While both POTA and TADA were temporary – the former repealed, and the latter allowed to lapse – the UAPA has, over the last seven years, become an ineradicable feature of India’s legal landscape. As its supposedly exceptional departures from the basic norms of fair trial enshrined in the Code of Criminal Procedure and the Evidence Act have become normalised, the identity of those unlucky enough to be caught in its snares has been reduced to the “unnameable and unclassifiable”.
In such a situation, it is only the courts – the last bastions of individual rights against overwhelming State power – that can provide sanctuary to the victims of this permanent state of exception. “Amidst the clash of arms, the laws are not silent” – so wrote the great British judge, Lord Atkin, at the height of the Second World War. And fortunately, the Indian courts have not been silent.
Judicial pushback
The pushback began in a 2010. In a case called Vishvanath vs State of Gujarat, the Gujarat High Court released on bail various individuals who had been charged under the UAPA of subscribing to Maoist ideology, on the basis that certain “incriminating material” (such as books and documents) had been seized from them. Justice Dave observed:
“writing or authoring any document or material or a book, cannot be considered as an anti-national activity amounting to waging a war against the nation…possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence.”
The next year, in early January 2011, the Supreme Court followed suit in State of Kerala vs Raneef. Granting bail to a doctor who was charged under the UAPA for allegedly providing medical aid to terrorists, the Supreme Court firmly rejected the contention that our Constitution allows a theory of “guilt by association”.
This idea was refined a month later in Arup Bhuyan vs State of Assam. Interpreting a provision of the TADA, which like the UAPA, criminalised “membership” of terrorist organisations, the Supreme Court drew a crucial distinction between “passive membership”, which could be simply supporting or sympathising with the goals of an organization, and active membership, which involved actual incitement to violence. In order for provisions criminalising membership to remain consistent with the guarantees of free speech and association under Article 19 (1) of the Constitution, Justice Katju restricted the scope of those provisions to only active members, who were themselves involved in violence, or incitement to violence.
The impact of Arup Bhuyan upon individual liberty was directly felt a year later, when Justice Thipsay at the Bombay High Court invoked the distinction between active and passive membership to grant bail to a number of people accused of being members of the banned Communist Party of India (Maoist), and who had already spent a year and a half on jail without trial having even commenced. Justice Thipsay held:
“Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organisation, and were perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members – much less such members as would attract the penal liability – of the said organisation.”
The Kerala High Court’s judgement is a welcome addition to the small – but growing – list of judicial verdicts that are gradually erecting a wall between the creeping power of anti-terror laws, and individual liberty. These judgements affirm that freedom of speech and association are sacrosanct, that thought crime is no crime, that the Constitution does not punish ideology, and above all else, that a decent society does not ruin human lives through years of pre-trial incarceration, when there is not even a hint of the accused having committed violence, or instigated anyone else to do so. We can only hope that the examples set by Justices Dave, Katju, Thipsay and Mustaque will, sooner rather than later, become established judicial and constitutional wisdom.