Romila Thapar gave a title to her essay in her recently published book, “The Public Intellectual in India”. I want to borrow that title as a title of this note of mine. The title is: To question or not to question? That is the question.
My concern is with silence. As a negative quality silence is a reluctance to speak up and question. Such a silence is on account of loss of sensitivity and incapacity to be disturbed. In order to emphasize on the necessity to speak and not to remain silent on this historical occasion, I quote an urdu couplet by Faiz Ahmed Faiz,
Bol, ye thora waqt bahut hai
Jism o zaban ki maut se pehle Bol,
ke sach hai zinda ab tak Bol,
jo kucch kahna hai kah le
(Speak, this brief time is ample
Before the dying of body and tongue
Speak, for truth still lives,
Speak, to say what needs to be said)
‘Bol', Faiz Ahmed Faiz
Asking a question as a critical attitude is not merely to produce certain kinds of answer but also to be involved in a particular process of thinking.
At the outset I put certain questions to myself and then to answer them. What is the present situation today in regard to the violation of human rights? Is anything left of Civil Liberties with the country? A man can be detained without any reason being given to him without his being told why he is being detained, without his being able to give an explanation of his conduct. The basic question is- how and why has it has happened that the atmosphere in the country is worse than what it was during Emergency, though no formal Emergency has been declared.
The movement for human rights is a struggle against misrule and against unconstitutional governance. The position of human rights activists, that the political philosophy of a targeted group should not affect the protection of their rights, is being misinterpreted and is being projected as political support of human rights defenders for the targeted group, be they Naxalites/Maoists/Terrorists. Taking advantage of such a misinterpretation (misconception), the Finance Minister of India Arun Jaitley says that now some Maoists have intruded in PUCL. Mr. Prabhakar Sinha one of the oldest founder member of PUCL has issued an appropriate rejoinder against this statement of Arun Jaitley
Soon thereafter five prominent activists – Sudha Bharadwaj, National Secretary PUCL, in Faridabad, Gautam Navlakha, President PUDR, in New Delhi, Varavara Rao, in Hyderabad and Vernom Gonsalves and Arun Ferreira in Mumbai were arrested on 28th August 2018 by the Pune Police, controlled by the Home Department of the BJP-Led State Government in Maharashtra.
Five eminent citizens of this country, namely historian Romila Thapar, the economists Prabhat Patnaik and Devaki Jain, the sociologist Satish Deshpande, and the Human Rights Activist Ms. Maja Daruwala, filed a PIL in Supreme Court against the arrest of aforesaid five persons. The Supreme Court reserved the judgment after hearing the parties on 21 September and it has not yet been delivered till the writing of this note. During the pendency of the writ petition, the five arrestees also moved applications to become co- petitioners with the five eminent citizens who had filed the petitions and also heard in support of their petitions.
At the cost of the repetition, I put a question that how could a situation develop where the atmosphere of the country is worse than what it was during emergency, though no formal emergency has been declared?
There were not many Draconian laws during emergency. The emergency ended de-facto with the announcement of general elections on 18th January 1977, and it ended de jure when on 23rd March 1977 (on the last day of her government) Indira revoked the emergency declared on 25/26 June 1975. MISA was enacted during Indira Gandhi regime in 1971 under the still existing External Emergency on account of 1971 war. But then it was used on large scale during internal emergency against large number of political leaders, social activists and intellectuals. MISA 1971 was repealed by Janata government on 19th July 1978. Indira Gandhi's Congress – I roundly defeated Janata Party in the Elections, 3-6 January 1980.
From 1980 Central and State Govts, enacted or re enacted laws providing for preventive detention, banning strikes, and threatening freedom of speech. The justifications from such legislations typically was 'in the public interest or protection of National Security and integrity'. The National Security Act was passed on 27 December 1980 which presaged years of new repressive legislation empowering central govts as well as all the state govts to exercise the power under that Act. The Detention orders are being passed since then under NSA to prevent an individual 'for acting in manner prejudicial to the maintenance of public order' with the defence or security of India, to relations with foreign power, to protect the maintenance of essential supplies and services'. The law's intent was to combat “Anti-Social and Anti-national elements including Secessionist, communal and pro-caste elements” and elements affecting' the services essential to the community. A significant fact to be noticed here is that the Constitutional validity of this Draconian Law was challenged in the Supreme Court, but the Supreme Court upheld its Constitutionality at the end of December 1981.
The Terrorists and Disruptive Activities Act (TADA), came on the statute book in 1985, just after 10 years of declaration of Emergency in 1975. The Act defines terrorists and Disruptive Activities so broadly 'as to encompass even peaceful expression of views about sovereignty and territorial integrity'; permitted detention for upto 6 months without charge; provided for trials before designated courts ' in camera and adopting procedures at variance with the Criminal Procedure Code'; and said that if the person is detained from an area that the govt had declared to be a 'Terrorist affected area, then the burden of proving that he has not committed a terrorist act is on him'. Common law had been reversed: You are guilty until you prove yourself innocent.
There has often been a demand for the repeal of TADA. Even the National Human Rights Commission had been demanding its repeal. Merely decrying TADA as a 'Black' or 'Draconian Law' by the political parties could not evoke any response. It would be treated as a slogan of the political parties, on the presumption that the issue has its advantages for them. This temporary enactment went through renewal without any protests whatsoever within Parliament, because the opposition parties feared that objection might lead to loss of credibility and credentials as well.
Only the human rights groups opposed this measure. For them, calling the Act a Black Law, Draconian, Repressive or comparing it to the Rowlett Act is not a political slogan. It conveys the quality and contempt of the law in its essential form. Broadly stated, it is more repressive in character than the Rowlett Law, which was subjected to violent criticism and protests.
Constitutional validity of TADA came to be challenged in the Supreme Court in Kartar Singh which was upheld 'Virtually proceeding on the assumption that the act is more fundamental than the Constitution', says K.G. Kannabiran in his celebrated book, 'Wages Of Impunity''. Kannabiran further says, “in fact, the Constitution Bench did not feel it was necessary to submit the Act to a detailed scrutiny. They embarked on a peroration against Terrorism which showed they had been impressed by the speeches made in Parliament on this subject. The Bench skirted scrutiny and confirmed the validity of the enactment. Thus, confirming to post Independence practice, a legislature, Executive, Judiciary in unison mandated the 'absolute reign of law' overlooking the fact that this is often synonymous with 'Absolute reign of lawlessness”. After TADA came POTA (Prevention of Terrorism Act 2002). Its Constitutional validity was challenged by PUCL by filing writ petition in Supreme Court. The validity was upheld on the simple ground that it contained the similar provisions as TADA. The Constitutional validity of TADA was upheld by a Constitution Bench. Since the grounds of attack in the Supreme Court in POTA (which was decided by a 2 Judges Bench) as in TADA, the law laid down by the Constitution Bench was binding upon the Bench of two Judges. Then in 2008, drastic amendments were made in Unlawful Activities Prevention Act (1967) incorporating all the draconian provisions of TADA and POTA. This amended Act of 1967 is known as UAPA. The preamble of this Act provides: “An act to provide for the more effective prevention of certain unlawful activities of individuals and associations and, dealing with terrorist activities and for matters connected therewith. The long preamble further provides that the Security Council of the United Nations require the States to take action against terrorists and terrorists organizations, to freeze the assets and other economic resources, .................. it is considered necessary to give effect to the said Resolutions and the Order..............”
It is a matter of common public knowledge that the '”Terrorists” are never booked under UAPA and that they are being eliminated in fake encounters. The Human Right Orgnisations oppose such encounters. The police which kills the “terrorists” becomes the judge, jury and the executioner. The Supreme Court has taken a serious view regarding these fake encounters in a petition filed by PUCL in which Supreme Court has laid down certain conditions to be complied with in a case of so called encounter. But the police of various states without following the conditions laid down by Supreme Court, shamelessly is going on with its task of killing the “terrorists” in fake encounters on a large scale. This act of police is considered by the large section of misinformed general public as an act of heroism and the opposition of the human rights groups to this act of fake encounters is misunderstood by them as an act in support of terrorism.
Now since 2008, the governments of all political hues in the Centre (UPA as well as NDA) and the states are using this Act, National Security Act and Section 124A IPC (Sedition law) to book those public intellectuals, social activists and human rights activists who are opposed to their policies. Dr. Binayak Sen and Seema Azad of PUCL became the victim of these laws. Sometime back the government has booked an eminent professor Sai Baba who is a highly disabled man and uses wheel chair to move around. Now recently in June 2018, five activists were arrested in connection with the Bhima- koregaon clashes which occurred on 1st January. They are Advocate Surendra Gadling, General Secretary of Indian Association of People's Lawyers from Nagpur; Professor Shoma Sen Head of Department of English Nagpur University; Sudhir Dhawale, Editor of Marathi Magazine Vidrohi from Mumbai; Rona Wilson Public Relation Secretary, Committee for the release of the political prisoners. (CRPP); and Mahesh Rout, anti–displacement activist fromBharat Jan Andolan. All these five have been involved in various pro people movements often raising their voices against both State and corporate forces. Now the five human right activists were booked, on whose behalf five public intellectuals including Romila Thapar have filed petitions in the Supreme Court in which judgment is awaited.
Now this is high time that the public intellectuals, human right activists, journalists, lawyers and other social activists act in the spirit of the couplet of Faiz Ahmed Faiz and raise their voice against the repeal of UAPA, Section 124A IPC and National Security Act. They have to break their silence. Now they have to question, by peaceful means, these acts of terrorism by the states. There is no option left but to do this in as much as the Constitutional validity of UAPA is not possible to be challenged as the Constitutional Bench in Kartar Singh case, and relying upon this five judge Bench Constitution Bench, the constitutional validity of POTA has also been upheld in the petition filed by PUCL. The Constitutional validity of Section 124A IPC and NSA has been upheld by the Supreme Court long back. Kannabiran in his quote mentioned above rightly said: Thus confirming to post- independence practice, the legislature, executive and judiciary in unison mandated the 'absolute reign of law' overlooking the fact that this is often synonymous with 'absolute reign of lawlessness'.