Skip to main content

Incarceration of Prof Saibaba 'revives' the question: What is crime, who is criminal?

By Kunal Pant*

In 2016, a Supreme Court Judge asked the state of Maharashtra, “Do you want to extract a pound of flesh?” The statement was directed against the state for contesting the bail plea of Delhi University Professor GN Saibaba. Saibaba was arrested in 2014, a justification for which was to prevent him from committing what the police called “anti-national activities.”
Saibaba, a 90% disabled man, was kept in solitary confinement. Less than a year after being granted bailment by the Supreme Court, he was convicted to life imprisonment, along with five others by Maharashtra District court under the Unlawful Activities Prevention Act (UAPA), 1967 for political beliefs and Maoists sympathies. This case revives the question around the UAPA, at the heart of which is “What is a crime?” and “Who is a criminal?”
However, Saibaba’s real “crime” was being one of the people who campaigned against what was known as Operation Green Hunt where the government had created vigilante groups as well as moved paramilitary forces into the forest of Central India where they had signed Memorandum of Understanding for moving indigenous people out of their lands to give it over to the mining companies.
There was absolute violence inside those villages, setting them on fire, raping killing, and displacing people. All of this conducted in the garb of an anti-Naxalite operation that began in 2009. Despite that, the people protesting displacements are being called anti-nationals. When Arundhati Roy, activist and Booker Prize winner, expressed concerns in an article regarding the prosecution and incarceration of a paraplegic professor, she was charged with contempt of court and had a criminal case against her.
UAPA has been disproportionately targeted against minorities (Muslims, Dalits, Adivasis), activists, human rights defenders and political opponents. According to Prison Statistics of India, while Muslims, Dalits and Adivasis accounted for 39% of Indian population, they accounted for 53% of prison population. Besides Saibaba, the five people convicted are journalists, social activists, students, and tribals.
To quote an excerpt from the judgment, “They hatched criminal conspiracy to wage war against the Government of India and to collect people with the intention of waging war against the Government of India.” The police mentioned that he was found in possession of Maoist literature.
There are several issues with UAPA. There are overly broad and ambiguous definitions of terrorism that fail to satisfy the principle of legality. The 2008 amendment of UAPA follows its precedent POTA by specifying that an unlawful act is one carried out with the intention to “threaten the unity, integrity, security or sovereignty of India or… to strike terror… in the people”.
However, the amendments also broaden the previous POTA definition, by specifying that any act “likely to threaten the unity, integrity, security or sovereignty of India” or any act “likely to strike terror in the people…in India or in any foreign country” is also a terrorist act. This leads to incorporating subjectivity into the definition and even extends the definition extra-territorially. So, you don’t actually have to commit a crime to be booked under this law. You could be arrested for attending a protest meeting or reading a book on revolution, or even not standing for the National Anthem.
Gautam Navlakha has pointed it out several times that the law essentially punishes people for “thought” crimes, if their ideology differs from the government. The convictions under the act are low. On an average, from 2014 to 2016, 75 percent cases have ended in acquittal/discharge because the arrests were made on flimsiest of evidence.
The vague definitions are used by authorities to label Muslims as aiding and abetting activities of SIMI (organization banned since September 2001). Cases in point are the withdrawal of money from own savings account being treated as financing SIMI, member of masjid committee being treated as hosting SIMI, and so on. Similarly, political dissenters (including members of Dalit and tribal communities) are lumped together as members of banned Maoist groups.
Cases in point are Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut, and Rona Wilson – all Dalit activists – allegedly for being associated with Elgar Parishad (Bhima Koregaon). The vagueness also creates a barrier of judicial review, where the judiciary has failed to differentiate the cases of law and order and national sovereignty. The judge in Saibaba’s case said, “In my opinion, the life imprisonment is also not the sufficient punishment to the accused.”
The pretrial investigation and detention procedures infringe upon due process and personal liberty. The recharge detention of 180 days without bail, provides enough time to the authorities to gather adverse evidence against the accused. In addition, there is an assumed presumption of guilt in the special law, and the burden of proof falls on the accused.
There is a lack of sufficient oversight of police and prosecutorial decision making, which leads to arbitrary, discriminatory, and dis-uniform application. There are broad immunities from prosecution of government officials. The act provides extensive power to national and state governments, military & police to set up special courts in "terrorist affected" areas, allow extra-judicial criminal procedures like stop, search, use force, and​ preventively detain individuals.
Vagueness of law creates barrier of judicial review,  leading to judiciary failing to differentiate cases of law and order from national sovereignty
The other issue is that the law does not have the provision for anticipatory bail. Bail is difficult because you have to prove that prima facie there is no case. All of these provisions make sure that the process of going through a trial is itself torturous. The earlier versions of the anti-terror legislations used to have a “sunset” clause, under which the law ceases to have effect after a fixed point of time. In contrast, the UAPA is a permanent statute, which means it does not need to be sent to Parliament for a new life.
Dr Saibaba’s health condition requires constant and immediate medical care and is reaching the point of a life-threatening, according to UN Special Rapporteurs. The Indian Prison system presents severe hardships, especially for the elderly. Despite his physical challenge Saibaba was locked up in the “Anda” cells, poorly ventilated with very little space to move. The insufficient medical aid and lack of support from prison authorities create an extremely inhospitable infrastructure of prisons.
There are instances like human rights activist Gautam Navlakha being denied a pair of spectacles, Father Stan Swamy, suffering from Parkinson’s disease, not receiving minimal support, and dependent on help from prison inmates. Safoora Zargar was charged under UAPA a Northeast Delhi riots case and had been in jail until recently for over a month without the prospect of bail.
This was despite her pregnant condition and the risk of being exposed to the coronavirus due to the overcrowded prison in Delhi. Recently, she was allowed to visit her maternal home for two months for proper nursing of her child, postpartum care and other customs.
The costs of UAPA are not limited to individuals, but extend to entire communities and villages. There are evidences of towns with Muslims-majority community being described as breeding grounds for terrorism, on the pretext of “large, uneducated Muslim youths.”
For example, Azamgarh (UP) and Bhatkal (Karnataka) remain in the institutional memory as terror models. This leads to linking cases in any part of India to these towns. Bhatkal (94.1% literacy rate) has become synonymous with Yasin Bhatkal (associated with Indian Mujahidin). As a result, despite its premier education facilities and more than a few hospitals, there was a severe shortage of professionals, such as doctors (especially gynaecologists) and teachers.
Such unforgivable laws like UAPA raise questions on the constitutionality of such special acts, and their impact on civil liberties.
---
*Second year student at Indian Institute of Management-Ahmedabad. The ideas are based on conversation with Pushpa Achanta, activist and journalist

Comments

TRENDING

'Halt Covid-19 vaccination drive': Indian doctors join campaign across 36 nations

By Rosamma Thomas*  A group of Spanish doctors first got together to call for a halt to the Covid-19 vaccinations, and doctors from other countries too later joined them – there are now over 12,000 doctors from India, Portugal, Canada, Hungary, South Africa, Israel and a host of other nations who have issued a call to halt vaccinations. On September 10, a group of Indian doctors came together to address the press over a webinar to explain why they thought the vaccination drive should end forthwith. Dr Amitav Banerjee, who after a career as an epidemiologist in the Indian Army now teaches at a private medical college in Pune, said there was no longer a medical emergency. Children are at low risk of infection, and there is good reason to halt vaccination and conduct proper research, given the high number of adverse events. There is a sudden and poorly explained spike in the number of young and healthy people dying. While it may be impossible to attribute deaths entirely to the vaccinatio

Did Mother Teresa trivialise poverty? 'You are suffering, that means Jesus is kissing you'

By Harsh Thakor*  The world commemorated the 25th death anniversary of Mother Teresa on September 5. Whatever her flaws, she rendered service to humanity in regions almost untranscended, resembling the relentless spirit of the waves of an ocean. Irrespective of community or religion, she offered her service. Even those not drawn by sainthood revere the role of Mother Teresa. For 68 years, she had worked selflessly and tirelessly in India and elsewhere in the world, taught the destitute, healed the sick, fed and clothed the poor, cared for abandoned children, housed lepers and those afflicted with HIV/AIDS and offered dignity in death to desolate persons abandoned by family and society. Mother Teresa was born in Skopje in 1910 to an Albanian family as Anjezë Gonxhe Bojaxhiu. She became wedded to religious vows at an early age and moved to India to join the missionary work of the Catholic Church. Heartshaken by the misery faced by the Indian masses, in 1950 she set up her own

Tracing roots of Hindutva Zionism: cannon fodder for 'warped' nationalist pretensions

By Shamsul Islam*  Those who believe in a world free of hegemonic ethno-nationalism, racism, religious bigotry and hatred have rightly taken note of Zionism and its ally Christian Zionism, major perpetrators of ethnic cleansing of ‘Others’. However, the civilized world with its core belief in multi-culturalism and peaceful co-existence is oblivious to a no less dangerous threat to the present human civilization: the Hindutva Zionism. As the term reads it is part of the Hindutva world-view which stands for an exclusive Hindu India minus Muslims and Christians. The other religions like Sikhism, Buddhism, and Jainism will have no independent status but treated as part of Hinduism. The Rashtriya Swayamsevak Sangh (RSS; National Volunteer Organization) is the most prominent flag-bearer of the Hindutva politics whose cadres presently rule India, the largest democracy in the world. RSS was founded by Keshav Baliram Hedgewar (1889-1940) in 1925 who was disillusioned with the Indian freedom st

Regional parties, anti-Congress progressives, civil society groups 'joining' Bharat Jodo

By Harshavardhan Purandare, Sandeep Pandey*  The Congress party declared Bharat Chhodo (Quit India) movement against the British regime in 1942. The Congress party has now launched a movement Bharat Jodo (Connecting and Uniting India) against the Modi regime in 2022. Indian people have had a journey of 80 years since Mahatma Gandhi gave that Quit India call to the British and we have to agree that we stand most divided in our modern history when Rahul Gandhi is giving this Bharat Jodo call to the nation. And back then, Congress was a thriving idealistic political movement against the British rulers and now it is an ever weakening political organization electorally defeated several times. However, it is India at stake, not just the Congress party. That is why so many regional political parties, civil society organizations, traditional anti-Congress progressive forces like socialists and communists, intellectuals and civil servants have declared their support and are proactively partici

Shocking? No Covid vaccine trials conducted on pregnant, lactating women: RTI reply

By Rosamma Thomas*  A Right to Information applicant who sought details of safety trials conducted in India on pregnant and lactating women for three Covid vaccines in use in India – Covishield, Covaxin and ZyCov-D -- was shocked to learn from the Central Drugs Standard Control Organization (CDSCO) that Serum Institute, manufacturer of Covishield, and Cadila Healthcare, manufacturer of the ZyCov-D vaccine, had not sought permission for such trials.  Bharat Biotech, manufacturer of Covaxin, had sought permission for trial on pregnant women and later withdrawn its application. This response , provided after the applicant was initially unsatisfied with the response and went in appeal, is from the joint drugs controller, CDSCO. It was dated September 13, 2022. One researcher closely following the vaccine rollout, however, is of the opinion that the lack of a trial on pregnant and lactating women is a blessing; potential trial participants and their unborn babies thus escaped harm. Aruna Ro

Grave error? Scholar blames ex-Gujarat babu for anti-Christian riots 'citing fake report'

By Rajiv Shah  A few days back, I received a message from one of the finest former Gujarat government bureaucrats, PG Ramrakhiani, a 1964 batch IAS official, who retired in November 2000. I would often interact with him in 1997-99, even later, after I was sent to Gandhinagar as a Times of India man to cover Sachivalaya. Those were turbulent times. Shankarsinh Vaghela was the Gujarat chief minister, under attack from two sides – from the BJP, which he had left to form a separate breakaway party, Rashtriya Janata Party (RJP), one one hand, and the Congress, which was supporting him from outside, on the other. Ramrakhiani, in his message, referred to the book authored by Ghanshyam Shah and Jan Breman, both top-notch scholars who have known Gujarat in and out. Called “Gujarat, Cradle and Harbinger of Identity Politics: India’s Injurious Frame of Communalism”, I reviewed the book in January 2022.  It claims that Muslims in Gujarat have been turned into “new untouchables”, thanks to the Hin

Excess to cheetah in Kuno to increase 'woes' of local people, 'disturb' wildlife balance

Bharat Dogra*  The release of eight cheetahs into the Kuno National Park ( Madhya Pradesh) by Prime Minister Narendra Modi on September 17, although accompanied by a media blitz, has raised several questions. The animals were flown from Namibia to Gwalior and from there they were taken to the release site in a helicopter. Official sources have stated that this is the first time a large carnivorous species has been moved across continents for establishing a new population. This first release will be followed by others under this project. However, precisely for this reason, it is important to be cautious because if such translocations have been generally avoided in the past, there may have been reasons for this and at the same time we do not have much learning experiences from the past. The Cheetah became extinct in India in 1952, although this very fast moving animal is still remembered in the folklore of many areas. Hence the first impulse is to say that trying to introduce and revive

Introducing non-native cheetahs is 'not equivalent' to restoring pride in the nation

By Bappaditya Mukhopadhyay*  The Cheetahs from the African continent has finally been introduced to India by the Indian Prime Minister on his 72nd birthday. The process had started with the previous Government in 2009. However, the Supreme Court clearance was pending owing to the objection by the National Tiger Conservation Authority (NTCA) plea to reintroduce cheetahs. Finally the clearance was obtained in January 2020 and thereafter Kuno National Park (KNP) was chosen for the reintroduction of first set of Southeast African Cheetahs. In the near future, depending upon the success story of the current reintroduction, more cheetahs from South Africa may also be introduced. This exercise has generated a lot of interest among various stakeholders with opinions on both sides galore. It is important to pose some questions that surround the whole exercise. Let us evaluate some of these arguments. The first set of arguments are quite detached from the issues of conservation as they most

'Military diplomacy': US praises Bangladesh Army for leadership role in UN operations

By Kamal Uddin Mazumder* As the Indo-Pacific region represents the world’s economic and strategic center of gravity, the Indian Ocean today is becoming the centerpiece of all geo-strategic play. Cooperation in the region is crucial to implementing the international community’s global agenda, including achieving the UN’s Sustainable Development Goals. Major powers like the US have enhanced and deepened their strategic engagement and leadership roles with countries in the region. The Indo-Pacific Army Management Seminar, or IPAMS, is a U.S. Army Pacific (USARPAC) initiated conference that is aimed at facilitating and enhancing interactions among the armies of the Indo-Pacific region. This year's 46th Indo-Pacific Armies Management Seminar (IPAMS)-2022, co-hosted by the Bangladesh Army and US Army Pacific (USARPAC), concluded in Dhaka. The objective of IPAMS is to promote peace and stability in the region through mutual understanding, dialogue, and friendship. It is the largest confer

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".