Is India on its way to becoming a censorship state?

It is worse than the Emergency because everyday life and discourse is being twisted by reading draconian emergency powers without an Emergency.

 |  4-minute read |   03-09-2018
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The Sangh Parivar has declared an unholy war against free speech, activism and democracy itself. A fascist state is one which sports uncompromising populist fundamentalism, using state and non-state forces to silence dissent by all means including destruction, murder, violence, beatings and illegalities.

To enable its rise, the Parivar stopped at nothing.

Rath yatras to destroy Babri Masjid. Using police for violence. Pogroms and murders in riots, in Mumbai (1992-93) and Gujarat (2002). Violence in JNU and university campuses to control education and make arrests. The murder of Reverend Staines, conversion statutes in BJP states, ghar wapsi, cow vigilante killings, murder of free thinkers Gauri Lankesh, Kalburgi, Pansare, Dabholkar, Rajdeo, Sai Reddy, Jogendra Singh and others, Niyogi’s murder, arrests of Stan Swamy, Binayak Sen, Teesta Setalvad, banning of Shivaji book, Sahmat exhibitions. All these are part of a pattern of long-standing practices which even Vajpayee countenanced.

The Dalit Assertion

The background to the present cases is that the Dalits celebrated their 200-year-old victory over casteists through an Elgar Parishad in Bhima Koregaon, on December 31, 2017. Amongst the organisers were Justice Sawant, former Supreme Court judge, who says that these activists had nothing to do with organisation and funding of these events. But DCP Sardeshpande accuses them on suspicion without any credible proof.

The FIR’s of January 4, 2018, instigated by Tushar Damgude, claiming to be a "reconstructionist" by profession, without mentioning the persecuted activists. In January, Hindu Right supporters Milind Ekbote and Sambhaji were arrested in connection with the violence.

Months passed. Five activists (Sudhir Dhawale, Rona Wilson, Shoma Sen, Surendra Gadling and Mahesh Raut) were arrested in June. In earlier cases, they were acquitted. It was later alleged they possessed materials. Months passed. On August 28, raids in Maharashtra, Delhi, Hyderabad and Jharkhand led to arrests of Sudha Bharadwaj, Gautam Navalakha, Vernon Gonsalves, Arun Ferreira and Varavara Rao. Name? Not in FIR. Nothing incriminating against them. Some public domain literature. The offence is guilt by association under the dreaded unlawful Association Act ULPA (successor to TADA, POTA) and creating enmity among groups.

Nothing of substance.

beauty-naxal_090318083732.jpgThe offence is often just guilt by association.

Arrests made, houses ransacked. NHRC issued notices, the Supreme Court (SC) ordered house arrests in the interim. Delhi judges had all but released Navlakha. Now the net is wide. In 2012, the Union’s Home Office identified 128 organisations all over India in urban hideouts. Anyone challenging the ideas and actions is an urban terrorist. Soon, for me and others, this will be an appellation to be proud of. No doubt, more will be added and persecuted without cause. Maharashtra JCP Shivaji Bodkhe speaks of a Rajiv Gandhi assassination of PM Modi. Any connection with these arrests? None.

Any proof? None.

ULPA was originally struck down by the SC in 1952, re-enacted in 1967, and further amended is to include provisions of the dreaded post TADA-POTA version. Northeastern states and Kashmir have their own armed forces legislation. TADA was a response to Punjab insurgency of the 1980s. To declare an organisation requires a due process (Sections 3-9).

The Background

Individuals can be indicted for terrorist acts (Section 15-16), funding such acts (Section 17), conspiracy (Section 18), harbouring (Section 19) and membership of terrorist gang or organisation (Section 20). In the last case, punishment is up to life and possibly fine. The government makes arrests on unfounded suspicions. The law demands prima facie proof.

On February 3, 2011, Justice Katju said in Arup Bhuyan’s case (2011) that mere membership of a banned organisation is not criminally liable. On February 10, 2011, in Indra Das (2011) after a survey of Indian and foreign decisions, the court said that any other interpretation would make the ULPA unconstitutional unless actual acts of involvement or active membership can be shown. These reinforced the earlier decision of January 3, 2011, in a Kerala bail case. With this the criminality provisions of the law would collapse into illegality if misused, transforming counter terrorism into state terrorism.

The Road Ahead

India is on its way to become a censorship state to control all media, films, TV social discourse. But the Constitution rightly safeguards free speech and privacy, freedom of thought and belief. The government’s agencies invoked the law to violate it. Its supporters, the Sangh Parivar, believe that the only speech guaranteed is for them and empowers them to intimidate even murder.

In the SC, Prashant Bhushan filed a petition by Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande, Maja Daruwala. In court, the government questioned their locus to file for the activists. Against this petty intervention, the court felt the issue went to the heart of India’s governance. When Justice Chandrachud said dissent is the pressure value of democracy, he did not mean that dissent is therapeutic but the heart and soul of democracy itself. The SC ordered interim house arrest in their own home not jail until it hears the matter.

Why is this worse than Emergency? Not just because this is twisting everyday life and discourse by reading draconian emergency powers without an Emergency. This is an Emergency in continuous motion misusing and defying all laws as long as fascists are in power opening up a vector to totalitarianism of mind and spirit in governance and society.

Permit me to add: One of the lawful lawyer groups with which Sudha is associated is legally funded by me for its legal aid work.

I dare and defy.

Also read: Why is RSS scared of making its stand clear on Sabarimala issue?

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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