‘The Right To Protest Is Not A Terrorist Act’

 

 

 

 

‘The Right To Protest Is Not A Terrorist Act’

On February 23, 2020, the riots broke out in North-East Delhi between Anti-Citizenship Amendment Act (CAA) and pro-CAA protesters. The violence took a communal turn. Over 750 FIRs were filed and several people arrested for the communal riots, leaving 53 people dead and hundreds injured.

In the run up to the Delhi Assembly election in February 2020, political leaders from the ruling party were seen using incendiary slogans, equating the protesters to anti-national elements. During an election rally, the Union Minister Anurag Thakur raised the slogan:’goli maaro, saalo ko’. The BJP MP Parvesh Varma said that protesters at Shaheen Bagh would “enter your homes and rape your daughters and sisters”. And another BJP leader Kapil Mishra posted a communal tweet:”Pakistan has entered Shaheen Bagh. Mini-Pakistans are being created in the city…Pakistani rioters are occupying Delhi roads.”  He gave ultimatum to the Delhi Police  on February 23 to clear the roads, failing which he threatened to ‘hit the streets’. It was after this ultimatum the violence erupted.  And yet despite these provocative communal and hate speeches, the Delhi Police didn’t arrest them, sounding very partisan, and instead picking up the innocent protesters selectively, thereby losing its credibility. Many people and the students’ activists protesting peacefully against the CAA were arrested and sent to jail and denied bail, by invoking the draconian Unlawful Activities (Prevention) Act (UAPA).

On June 15, 2021 a division bench of Justices Sidharth Mridul and Anup Bhambhani,Delhi High Court, in its landmark judgment, granted bail to the three students’ activists- Natasha Narwal, Devangana Kalita (JNU) and Asif IqbalTanha (Jamia),who were arrested for their alleged role in the Delhi riots and charged under the UAPA. Their legal battle courageously fought from prison for more than a year, highlights the repressive nature of the state. The court found no prima facie case against the students, and held that the Section 53D (5) of the UAPA, which denies bail, did not apply to them. 

The Court reminded the authorities that the right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1) of the Constitution and that the “the right to protest  cannot be termed as a terrorist act” within the meaning of the UAPA.

The Court, inter alia, observed that-

“the foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however, vicious, organized by a tribe of college students…it seems that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy...the object of bail is neither punitive nor preventative but is principally to secure the presence of the accused at the trial; and that punishment begins only after conviction and that everyone is deemed to be innocent until duly tried and found guilty... There is absolutely nothing in the subject charge-sheet,by way of any specific or particularized allegation that would show the possible commission of a 'terrorist' act within the meaning of section 15 UAPA; or an act of raising funds to commit a terrorist act under section 17; or an act of 'conspiracy' to commit or an act preparatory to commit, a terrorist act within the meaning of section 18 UAPA.”

The High Court pulled up the trial court that denied the bail to the students, which “proceeded essentially on an uncritical acceptance of the allegations contained in the subject charge- sheet.” And made an important observation that the charges under UAPA being “extremely serious, inviting very severe punishment; and, therefore, the formation of an independent judicial view by the court at every step of the way is imperative”, and that the trial court should not have accepted what is presented by the police and the prosecution as the gospel truth, and instead applied its own mind. Consequently, the distinction between the ‘law and order’ and ‘security of the state’ is lost.

The UAPA is grossly misused. During the first five years of the present regime- between 2014 and 2019 as many as 7840 people were held under the UAPA, maximum being in Uttar Pradesh, with the conviction rate of just 2 per cent, as reported by India Today TV channel. The draconian law is invoked against the political and civil rights activists critical of the regime to silence and intimidate them; to keep them in jail for prolonged periods without bail and trial. The repression of activists and scholars are just the tip of a massive iceberg, where wrongful incarcerations for undertrials have become a rule. As Julio Ribeiro  rightly says,"if people who head India's institutions remember that their commitment is to the Constitution and not their political masters, justice will prevail. The man at the top can make all the difference. In a hierarchical uniformed body like the police, this is a given." The Delhi police high-handedness and misplaced loyalty is a serious matter of concern.

The students, released on bail, in a rare display of courage and high spirit, said that their fight was not over. Asif said the fight against injustice and against CAA-NRC would continue. Devangana said:”whenever women come together, stand against something…protest, society criticises them. They are vilified and called names...any peaceful protest or dissent is not terrorism...we hope to carry on the struggle to build an equal,just and free society." And Natasha-whose father died of Covid in May, while she was in jail; granted an interim bail to attend his funeral-in an interview to The Hindu (19/6) said:

“The past year in jail has brought many lessons that will remain with us for a long time…seeing the struggle of other inmates who do not have any strong support systems outside or even proper legal counsel has humbled one and strengthened the commitment to ensure that such violence and injustice is not allowed to go unchallenged. We have also learnt to value our freedom, and freedom in society ever more dearly…The rise in state repression is striking. Yet despite the increase in repression it has not been able to silence voices of struggle which have in fact been gaining in strength…Such repression is only exposing the fragility of the ruling regime and its anti-people character… this regime is trying to change the very fabric of our society, fanning hatred and pushing people into desperation…giving rise to a deep discontent and dissent which this regime is seeking to crush by ever greater repression.”

It is such brave hearts who promise to secure an equitable social order.

And to Pratap Bhanu Mehta, the Delhi High Court judgment is “an indictment of the Delhi Police and its masters in the Ministry of Home Affairs. In any civilized democracy, heads would have rolled.” This should prevent  the civil rights of citizens “from being swallowed up by the black hole of state power…the state is construing the expression of thought as a crime, ordinary protest is being suppressed or criminalized, bail is being routinely denied, and the state is actively targeting dissenters.” The Court 'has opened up the black box of UAPA jurisprudence'.

India was an invitee to the recent concluded G7 Summit. Addressing the Summit, Narendra Modi said India was a natural ally of G7 and pledged to fight against authoritarianism,as 'democracy and freedom were part of India's civilsational ethos'. India signed the joint statement on 'Open Societies' that reaffirm the value of 'freedom of expression both online and offline, as a freedom that safeguards democracy and helps people  live free from fear and oppression'. The Indian government must walk the talk, practice in India what it preaches to the world. It must distinguish between protest and terrorism;between nationalism and anti-nationalism;and stop misusing the UAPA agaisnt students,teachers, journalists and civil rights activists and imprisoning them..