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India's 11 activists face 'malafide' intentions, political vendetta, extraneous consideration

Maharashtra chief minister Uddhav Thackeray
By Kamayani Bali Mahabal*
The Constitution of India, Article 21, guarantees protection of life and personal liberty to every individual. Yet, the rights of activists and lawyers incarcerated under the draconian Unlawful Activities Prevention Act (UAPA) since 2018 in Maharashtra jails are at grave risk due to the delay and dragging of cases since the last 24 months.
Even after the pandemic outbreak, social distancing norms were not followed in prison and neither were the inmates informed when the first inmate tested positive. While inmates are told by authorities in Mumbai to maintain social distancing, however, in an overcrowded prison, which has a capacity of 804 but houses 2,800 prisoners whom are they kidding? 
Many undertrials spend sleepless nights, sitting in the barracks to ensure they do not end up sleeping close to an infected person as no one knows the condition of the other.
After the first case came to light, doctors examined others who were in contact with the infected inmate and tests revealed 26 infected jail staffers. Since jail staff goes to check each barrack daily, it was suspected that more prisoners were infected than only the one’s tested.
A jail official revealed that only those showing symptoms are tested and maintained that no other inmates were positive. The undertrials allege that many in the jail had fever but were given medicine for dengue or the usual antibiotics.
Besides, only two screenings were held since the pandemic began. To make matters worse undertrials are not produced before courts even via a video conference as only urgent matters are being heard. Prisoners from Arthur Road jail who opted for a hunger strike to protest delays were beaten and transferred to Taloja jail and again beaten there.
At Taloja the jail authorities have started a quarantine facility in a school 3 km away from the prison. Though the school capacity accommodates only 291 person there are 350 inmates packed into six classrooms. These inmates have to make do with 3 toilets, 7 urinals, and a common bathing space without a bucket or mug.
Many sleep in corridors or passageways and are highly at risk for skin infections besides the pandemic, as no social distancing is practiced and they are arbitrarily kept at the school quarantine facility even beyond 14 days.
The Home Department announced the release of half of the prison population — at least 17,000 inmates. Jail officials said about 1,000 prisoners from Arthur Road jail will be released but it still leaves the prison overcrowded according to its capacity and the need to maintain distance in pandemic times.
Prison rights activists say the decongestion exercise is an eyewash. Prisoners have no money to buy basic requirements from the jail canteen as the post office is shut and they are unable to receive money from their families.
At the Byculla prison, which houses women, 98 prisoners and 38 staffers were affected including the two women accused in the Bhima Koregaon (BK) case namely advocate Sudha Bharadwaj and Shoma Sen. All jails stopped prison visits by lawyers and family members since March and phone calls to the family are only two minutes per inmate.
After an incidence of violence in January 2018 at Bhima Koregaon, Pune, during an annual celebratory gathering of Dalits an FIR was lodged against two right-wing Brahmanic Hindutva leaders who had perpetrated the violence, but they were soon let free after preliminary investigations.
Thereafter, random unconnected persons in different parts of the country with a common thread of being dissenters were targetted and their homes were raided simultaneously by Pune police. Later they were jailed and trapped in a web of conspiracy theories using a draconian law, UAPA, from which the road to freedom seems like a tunnel with no light at the end.
Varavara Rao, Arun Ferreira, Vernon Gonsalves and Sudha Bharadwaj are being held in pre-trial detention without legal justification
While five were arrested in June 2018, another four arrests were made in August 2018 and an additional two persons labeled as “suspected” accused, a term which does not exist in criminal law statutes were given a call to surrender in April 2020 amid the pandemic.
All the accused are persons from different professions including lawyers, journalists, activists and academics. Retired High Court Judge of Bombay (late) Justice Hosbet Suresh expressed great concern for the way lawyers had been falsely implicated in the BK case. He remarked that never before had lawyers been arrested and that they were being targeted to silence those who speak against government atrocities.
The American Bar Association (ABA) raised questions on the arrest of lawyers and activists following the Bhima-Koregaon violence, and a preliminary report by ABA outlines irregularities in the pre-trial proceedings and potential violations of the right to freedom of expression and association.
The ABA Center for Human Rights observes trials around the world to help promote compliance with international fair trial standards. It is monitoring the legal proceedings against the accused to determine whether they are in line with India’s international treaty obligations, including its obligations to preserve the rights of freedom of expression, freedom of association, respect for fair trial rights, and freedom from arbitrary detention.
It has concerns over efforts by the police to prejudice the accused, material that was purportedly recovered from the arrested not seized in accordance with law, and the arrested individuals not informed about the grounds of their arrest.
They noted that Varavara Rao, Arun Ferreira, Vernon Gonsalves and Sudha Bharadwaj are being held in pre-trial detention without adequate legal justification, and the government has not demonstrated sufficient evidence of a direct and immediate connection between the actions taken by these individuals and any threat to security sufficient to justify the charging of the defendants.
The Center for Human Rights is concerned that the vague provisions of the UAPA render it susceptible to arbitrary and capricious misuse to silence human rights activists and that the proceedings against these arrested individuals will not comport with India’s international treaty obligations.
Furthermore, on January 24, 2020, the BK case was transferred from Pune police to the National Investigation Agency (NIA). A plea filed by activist lawyer Surendra Gadling and social worker, poet Sudhir Dhawale came up for hearing on 23 June before Bombay High Court. The court issued notices and directed the respondent parties to file their replies before July 14, 2020. 
The petition challenged the intentions behind the sudden and belated transfer of investigation of the case to NIA. While calling it a misuse of power, the petition also enlists various reasons to support its contention of malafide intentions, political vendetta, and extraneous consideration.
In the meanwhile, the five renowned public intellectuals – Romila Thapar, Prabhat Patnaik, Devaki Jain, Maja Daruwala and Satish Deshpande – who had earlier petitioned the Supreme Court to stop the persecution of activists and requesting bail for the August arrestees, have once again appealed to the chief minister of Maharashtra, Uddhav Thackeray, through a letter dated June 29, 2020 asking that the 11 rights activists who have been arrested in the BK/Elgar Parishad case be moved to house arrest in light of the Covid-19 pandemic.
In conclusion, the only demand raised at this point of time – in the midst of the pandemic – is to Uphold the Right to Life of those unjustly incarcerated we ask for temporary bail for all the 11 arrested persons.
---
*Human rights activist. This is the background note for signatures sought by July 15 10:00 p.m. for an online petition (click here) to chief minister Uddhav Thackeray

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