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Tripura violence: Invoking anti-terror law on Delhi lawyers 'violates' India's UN obligation

Counterview Desk 

Commenting on the Tripura police India’s top rights group, People’s Union for Civil Liberties (PUCL), has taken strong exception to “criminalize fact-finding” carried out by senior Delhi-based advocates into Tripura violence, stating, it is “in effect criminalize human rights work itself.” Signed by Ravi Kiran Jain, president, and Dr V Suresh, general secretary, PUCL added, the “orchestrated violence” was unleashed by “Hindu majoritarian groups” against minority Muslims “with the tacit connivance and conscious abdication of their duties by the Tripura police.”
Pointing out criminalising fact finding “would violate India’s international commitment under the 1999 UN declaration pertaining to human rights defenders as well as the constitutional commitment to protect the rights of opinion, expression and association”, in a statement, PUCL said, “It is also a matter of some irony that the colonial state never thought of invoking anti-terror provisions against Gandhiji for doing a fact-finding, but the current regime seems quite comfortable with trampling upon the fundamental right of expression and association using UAPA.”

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The People’s Union for Civil Liberties (PUCL) strongly condemns the Tripura Police for registering a FIR dated 03rd November, 2021 under the Unlawful Activities Prevention Act (UAPA) and other draconian provision of the IPC against a team of advocates from Delhi, the “Lawyers for Democracy”, for conducting a Fact Finding Enquiry into communal violence incidents in Tripura in mid-end October, 2021.
It is clear that the police have invoked the draconian provisions of UAPA law only because of the findings of the fact-finding team that the large scale violence which destroyed numerous homes, shops, mosques and other properties of Muslims in many towns in Tripura was the result of orchestrated violence unleashed by Hindu majoritarian groups like the Vishwa Hindu Parishad (VHP) and Hindu Jagaran Manch (HJM), against minority Muslims with the tacit connivance and conscious abdication of their duties by the Tripura police.
What is most shocking is that the West Agartala Police Station has sent a notice u/s 41 A of the Criminal Procedure Code to Advocates Mukesh, national coconvener, All India Lawyers Association For Justice (AILAJ) and member of PUCL-Delhi and Advocate Ansar Indori of the National Confederation of Human Rights Organizations (NCHRO) imputing that it was their social media posts, statements and the report which were responsible for “promoting enmity between religious groups as well as provoking people of different religious communities to commit breach of peace”.
The absurdity of the police accusation and the malice underlying the police case becomes evident by the fact that the fact finding team of the Delhi Advocates visited Tripura on October 29-30, 2021 after the outbreak of communal violence which occurred between October 12 and 26, 2021. The team neither abetted nor provoked the violence, so even the lodging of the FIR by the police is nothing but a case of abuse of powers.
What is most disturbing for all those who are concerned about human rights in India is that the Tripura police are seeking to criminalize what is not only a constitutional freedom but also a constitutional and democratic duty of every citizen, to seek the truth about incidents of communal violence so as to fix accountability and transparency from the political and bureaucratic executive. In this case, the Tripura police is seeking to criminalise a Fact Finding exercise as the role of the police and state administration have been exposed.

The Context: What triggered the FIR against the advocates?

What is the crime that the Tripura Police are ostensibly investigating?
What advocates Mukesh and Ansar Indori, as well as advocates Ehtesham Hashmi and Amit Srivastav did is to take seriously the fundamental duty under Art 51A(h) - to ‘promote “harmony and the spirit of brotherhood’ as well as the duty to ‘cherish and follow the noble ideals which inspired our national struggle for freedom’. With this constitutional motivation founded in a search for truth and justice, disturbed by the violence in Tripura, they went to Tripura to understand the root cause of the violence.
They produced a report titled, ‘Humanity under attack in Tripura’ which documents the attacks on Muslim establishments and the vandalization of mosques and the terrible impact of the violence in creating insecurity in the minority population which took place in several districts between approximately October 12 to 26, 2021. The report quite unambiguously points to the role of the VHP and other right wing, Hindutva based groups in instigating the violence and the complicity of the state in allowing that to happen.
Evidently the findings in the report as well as the wide publicity the report got in the media were not to the liking of the Tripura government as it was quite clearly pointing to the role of majoritarian extremist organisations in the violence as well as the complicity of the BJP – ruled state in the violence.
It is undoubtedly a desire to control the narrative on the violence that has prompted the Tripura Police to issue the notice. The state also seeks to send out a message, that fact finding is a risky endeavor especially if you are challenging the narrative of the current dispensation. Such wanton prosecution is also meant to send a chilling message to others from joining such Fact Finding exercises in the future, especially in BJP ruled states.

UAPA against the Advocates: Vindictive action to silence truth

What exposes the Tripura police action against the Delhi lawyers as a brazen, undisguised attempt to silence truth and to terrify and frighten future fact finding exercises are actions initiated by the Tripura High Court.
On October 29, 2021 the Chief Justice’s Bench of the Tripura High Court suo motu took cognisance of incidents of violence on October 26, 2021 in North Tripura, Unakoti and Sipahijala districts. The High Court order notes that the advocate general of Tripura had submitted a note stating that a VHP rally of over 3,500 people had been organised in Panisagar of North Tripura district to protest against attacks in Bangladesh in Hindus during the puja period.
During the rally clashes occurred in which three shops were burnt down, three houses damaged and mosques damaged. The report of the advocate general lists the various FIRs registered in several districts where communal violence had taken place.
The High Court while deprecating the spread of morphed and “false, fictitious or fabricated news articles or footages” being spread in social media, also pointed out that “the media has every right, as part of their activities, to publish the truth. It should not be allowed to spread untruth and spread communal passion”.
Similarly, on November 2, 2021, the National Human Rights Commission (NHRC) also took on file a complaint filed by the TMC against the communal violence in Tripura and asked the Chief Secretary and the DGP of Tripura to file a status report before the NHRC in four weeks.
It is very clear that from mid-October onwards as reports started getting published about attacks during Durga puja on Hindus in Bangladesh, tension started building up in many parts of Tripura, especially in parts where former Bangladesh origin Hindus had settled in. Several media reports points out that prior to the incidents of October 26, 2021, the VHP, the HJM and their affiliated organisations had organised numerous rallies and gatherings where the mood was markedly aggressive and demands made for retaliation against Muslims in Tripura.
For example the VHP and other Hindutva groups wanted to take processions in Futamati, Maharani and Hirapur area of Gomati district, which are minority dominated. When police refused permission, stone pelting occurred injuring policemen and others.
Similarly, on Thursday, October 21, 2021, a 10,000 strong rally of VHP was organised in Dharmanagar in North Tripura District while another rally was organised in Agartala of West Tripura district by 13 Hindutva related organisations.
So very clearly, the atmosphere in Tripura from mid-October 2021 was surcharged with feeling of communal hostilities against the minorities. This resulted in a series of attacks against Muslim owned properties.
Although the district police in some districts had taken preemptive action in several places to curb outbreak of violence, there were allegations that the state police had not effectively taken action in time and had by acts of omission and commission aided the right wing, Hindutva based majoritarian groups to attack with impunity minority Muslim houses, properties and religious places of worship.
This being the fact situation, the fact finding exercise undertaken by the four-member team of advocates was to visit the affected areas and gain a first-hand understanding of how events unfolded, by talking to the victims and various parties involved. Their Report indicated that they had spoken to the police officials also.
It is a matter of some irony that the colonial state never thought of invoking anti-terror provisions against Gandhiji for doing a fact-finding
It is for this act of truth finding that the advocates are being penalized by a UAPA based criminal case.
First they came for the journalists; then the student activists; now the advocates … Over the last few years, we have seen the Indian government assiduously going after all independent voices which seek to challenge its narrative and question its policies. Journalists have been targets of attack under this regime. A study by the Free Speech Collective has documented that there have been 198 serious attacks on journalists documented in the period between 2014 and 2019, including 36 in 2019 alone.
The notice under UAPA to Mukesh and Indori escalates the attack to now include advocates. Advocates perform a vital role in a democracy. Beyond the important function of legal representation, advocates have historically played the role of public spirited individuals in the quest for justice. Advocates have played a seminal role in India’s freedom struggle too.

Mahatma Gandhi and the innovation of the fact finding enquiry

The lawyer who innovated an understanding of the use of the law going beyond legal representation was Mahatma Gandhi. In 1917 he invented the practice of using Fact-finding Report in the Indian context doing an initial study regarding the condition of the indigo workers in Champaran district in Bihar. Gandhiji had gone to Champaran to find the truth about a problem known as Tinkathia which was a regulation that forced the tenants to grow indigo on three katha out 20 katha of their land for the benefit of the white landlords, who made indigo from it and exported.
The British were uncomfortable with his presence and Gandhiji was ordered to leave Champaran and when he refused he was tried for disobeying the order. He admitted his disregard of the order and said to the court: “I have disregarded the order served upon me, not for want of respect for lawful authority but in obedience to the higher law of our being -- the voice of conscience.”
What is important to noted is that the British Raj did not jail Gandhiji. Not only was the expulsion order withdrawn but Gandhiji was allowed to make his own inquiry and later made a member of the official inquiry committee looking into the peasants' complaints. In October this committee unanimously asked for an abolition of the Tinkathia system.
The fact-finding team practice by Gandhiji was thereafter expanded into a full-fledged exercise exposing the horrible atrocities inflicted on innocent Indians by the British forces in Jallianwala Bagh.A team headed by Gandhiji visited the Punjab and spoke to scores of affected people to reconstruct what truly occurred in Jallianwala Bagh.
The resultant report on the Jallianwala Bagh massacre and its aftermath challenge the British colonial state’s smug and self-serving narrative that the firing was necessitated because of unruly and violent crowds of locals. Gandhiji’s Report sought to establish the truth of what happened in Jallianwala Bagh.
As Gandhiji himself says, “I would recommend a perusal of this report to anyone who wants to have an idea of the kind of atrocities that were perpetrated on the Punjab people. All that I wish to say here about it is that there is not a single conscious exaggeration in it anywhere, and every statement made in it is substantiated by evidence.”
Mukesh, Ansar Indori and other team mates, in undertaking a fact-finding exercise and producing a report on communal violence in Tripura are following in the footsteps of Gandhiji. What they are doing is producing a document which will tell the story of what happened from the viewpoint of the victims. As such it is an important narrative, especially when the state seeks to control the narrative.
We should note that since the 1980s fact-finding exercises have been repeatedly undertaken in a wide variety of settings to counter attempts of the state to cover up its lapses, omissions and commissions leading to serious violations.
Former Supreme Court judges like Justices VR Krishna Iyer and PB Sawant and High Court judges including Justices AP Shah, Hosbet Suresh, and others have led FF teams in incidents like the Gujarat pogrom following the Godhra killings, into encounter killings and so on. The UN Human Rights Council and other bodies also respect and accept the report of citizens’ fact-finding teams into incidents of human rights abuse or violation of socio-economic and cultural rights by state agencies.

PUCL opposes criminalizing fact finding enquiries

Advocates Mukesh, Indori and others should not be criminalized for undertaking the fact-finding but should rather be appreciated for undertaking what after all is the fundamental duty of the Indian citizen. It is also a matter of some irony that the colonial state never thought of invoking anti-terror provisions against Gandhiji for doing a fact-finding, but the current regime seems quite comfortable with trampling upon the fundamental right of expression and association using the heavy handed instrument of the UAPA.
We applaud Mukesh, Indori and his team mates for fearlessly performing their fundamental duty of honouring the ideals of the freedom struggle and demand that the Tripura police withdraw the notice and drop the prosecution with immediate effect. The legal basis to the notice is untenable as their fact-finding did not provoke any violence even as per the notice of the police and there is no reason to consider it an unlawful activity.
They went to study and document the violence that had already occurred. By considering the legitimate freedom of speech and expression in both its off line and on line avatars as unlawful activity, the Tripura police are overstepping the bounds of their legal authority and without any legitimate cause violating constitutionally protected rights. By asking that Mukesh and Indori remove their social media posts, they overstep the limited authority they have been conferred in Section 41-A of the IPC.
PUCL stands with those who undertook the fact-finding exercise as `fact-finding’ is the essence of human rights work. To criminalize fact-finding is to in effect criminalize human rights work itself. This would violate India’s international commitment under the 1999 UN declaration pertaining to human rights defenders as well as the constitutional commitment to protect the rights of opinion, expression and association.
We demand that the FIR registered against the lawyers’ team of Mukesh, Indori and others be immediately withdrawn and no further action is undertaken pursuant to the notice. We also demand that the conclusion of the Fact-Finding Team Report be implemented in letter and spirit so that all officials found to be complicit in abdicating their responsibility to enforce the law fairly, fearlessly and impartially and failed to prevent communal violence in different parts of Tripura State in October 2021 are prosecuted.
It is equally important that all those who were responsible for the communal attacks also be criminally prosecuted.
These measures will be the necessary efforts to ensure that Tripura again enjoys communal harmony and peace which marked its history for decades after independence.

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