By Gautam Navlakha
It is at a time like this that one faces a critical choice: to either fall silent and submit to the authorities or to continue to strive and struggle for freedom, unmindful of the outcome.
The following is an article written by activist Gautam Navlakha during his period of incarceration. He was implicated as part of the Elgar Parishad case in which 16 rights activists, lawyers, writers and academics were arrested.
“…..No, freedom does not die alone. At the same time justice is forever exiled, the nation agonises, and innocence is crucified anew every day.”
– Albert Camus in Resistance, Rebellion and Death.
A captive’s understanding of freedom, by its very loss, becomes acute. Severe restrictions on movement and mobility are compounded by unreasonable constraints placed on expression and speech. So much so, that were a prisoner to raise even basic issues concerning food, water, medical aid – all of which are intrinsic to the Right to Life – the jail authorities have a pavlovian response: to dismiss, deny or, in the best-case scenario, to delay redressal. Imagine having to fight for a prisoner’s right to breathe in fresh air, soak in the sun for at least an hour a day, read books of one’s choice or even be allowed to visit the jail library. As for me, when two years of pleading with jail authorities went unheard, I was forced to turn to the custodian court (trial court), which granted me permission to take a walk every morning for half an hour.
I was the sole prisoner in Taloja Central Jail, walking among more than 3,500 prisoners. The Bombay high court also allowed me to receive books of my choice. However, such concessions were not extended to all prisoners. Therein lies a story of hierarchy and inequality inside the prison.
When I entered the prison, I was confronted with a reality where every prisoner was expected to follow rules, but the prison manual, which listed those rules, was like a “national security matter”. Only some were allowed access it and that too after submitting a ‘request’ to the jail superintendent. Questioning is second nature of a civil liberties activist. Russian-American writer Vladimir Nabokov’s observation that ‘curiosity is insubordination in its purest form’ made profound sense to me and my struggle to access the Jail Manual arose from my curiosity to know its contents.
As a civil liberties activist, I believe that empowerment of citizens, which is a hallmark of democracy, comes from knowing that the outcome of the struggle for freedom from oppression does not matter, as much as the decision to continue to struggle. Without this engagement to struggle, people would be reduced to a state of captivity, whereas engagement and struggle frees one from feeling helpless. It is our engagement to struggle that gives us agency and enables us to persevere against odds and non-successes while creating some space for freedom at the same time.
Speaking for myself, I had more time to read books, meet and forge bonds of friendship, caring and sharing with other inmates. I got to know my co-accused and learnt to draw strength from their robust attitude and creative engagement, despite captivity. I realised that I felt free in my mind, which no rule or restriction could take away from me. Getting to know new people, learning from them and unlearning some of my own assumptions gave me a purpose in jail. I also realised that freedom lay in seizing opportunities, however small.
The distinction regarding jail as a place where those convicted after a trial are sent as punishment has lost its meaning in Indian prisons whose 80% population comprises undertrials and detainees. Indian regime and the judiciary send people to prisons without trial or conviction. Every prisoner is bound by the prevailing prison manual. Maharashtra jail manual prohibits prisoners from singing songs or even laughing loudly. [Chapter XXVI, ‘Prison Discipline’- Jail Manual of Maharashtra State, in Rule 19 lists acts considered as prison offences within the meaning of S45 of the Prison Act 1894 and Rule 19(1) prohibits “Talking when ordered by an officer to desist, singing, loud laughter and loud talking”].
I found the rule prohibiting laughter and talking rather offensive. If there is something to laugh about, why should I or any other prisoner be forced to suppress or mute it? As for “loud talking”, it depends on the context. In the Anda Cell (high security solitary confinement), after ‘bandi’ (when prisoners get locked up) how else should inmates talk to each other when their cells are at quite a distance from each other? When ‘bandi’ opens, we are able to speak normally. But if one wants to discuss things such as each other’s health or general well being across yards, there is no getting away from loud talking. As for singing, amongst my co-accused were cultural artistes who wrote lyrics, composed music and sang these songs, inspiring us to sing too. That is the reason why these anachronistic rules were routinely broken.
When an officer visited our yards, we did not shy away from raising issues that we had. Not always, but occasionally, voices do get loud and songs do get sung but the point is that simply because there are rules, it does not mean that one must follow them blindly.
Pitching low
Informed by such experiences, my perception of events and developments in the outside world became acute. I must mention here that for those in captivity, daily newspapers are the only window to the outside world. If some remark or observation troubled me more than ever, I could not dismiss these because of what these remarks portend. For instance, when India’s Prime Minister claimed, on January 2, 2022, that precedence given to rights while “completely forgetting about duties since Independence left the country weak” it rekindled in me memories of the Emergency of 1975-77. It was former Prime Minister Indira Gandhi’s government then which propagated duties over rights and amended the Constitution to insert Article 51 listing duties of a citizen. This was rightly perceived as a way to demand unquestioning obedience from citizens, just the way it is being done now in “new” India, sorry, Bharat.
Exhortation to duty by those in position of power is invariably a code for obedience and loyalty that breeds narrow-mindedness. It is when rights are invoked that it brings in duties; my right to free speech and expression is intrinsically tied to my duty to respect the same of others or else rights will cease to mean anything. When rulers invoke duty, it is to make people fall in line, to uncritically accept whatever is dished out to them.
What struck me was that the newspapers did not comment editorially on Prime Minister Modi’s rather disingenuous remarks on rights of citizens. This silence struck me as being a mark of fear to criticise the prime minister. As ominous as Modi’s implied drift towards diminution of rights was, later I came across another remark by him which showed that he was being deliberately convoluted regarding this matter.
On November 26, 2023, the prime minister, in his radio talk ‘Mann ki Baat’ claimed that it was “unfortunate” that the First Amendment to the Indian Constitution (May 1951) was done to “curtail” freedom of speech and expression. As is typical of him, he failed to mention that this amendment was also to push for ending the ‘zamindari’ system and to protect Dalits from caste oppression. Instead, the prime minister implied that that he, along with his government, stood for free speech and expression. Within 24 hours of his radio broadcast, the Jammu and Kashmir police, controlled directly by the Union government, charged and arrested seven students under the draconian anti-terror law, Unlawful Activities (Prevention) Act (UAPA), for celebrating Australia’s victory over India in the ODI World Cup final.
The police claimed that the arrests were aimed at “terrorising others who may be nourishing pro-India feelings or anti-Pakistan feelings or disagreeing.” However, the police had to beat a hasty retreat in face of widespread criticism. But the point is that the police’s instinctive response was to crack down on those who refused to tread the straight and narrow of chauvinistic nationalism.
J&K police and their counterparts in Uttar Pradesh had gained notoriety when they arrested those who who celebrated Pakistan’s victory over India in a cricket match in 2021. The police read “sedition” in this celebration. In Maharashtra, the Pune police tried to physically prevent ‘Nirbhay Bano Andolan’ from hosting a meeting where the feisty journalist Nikhil Wagle was to speak, despite having the requisite permission. Why? Because right-wing rabble rousers opposed the meeting and threatened to disrupt it. Lo and behold, the Pune police filed an FIR under Section 153-A of the IPC (enmity between communities) against the meeting’s organisers.
So solicitous has the police in BJP ruled states become of hate mongers’ freedom of speech and expression, that the Bombay high court recently expressed surprise that the premises of the Police Commissioner of Mira-Bhayandar and Vasai-Virar was used to host a press conference where allegedly hate speeches were made by BJP’s ‘star performers’.
Intolerance of differences, diversity and dissent is rather pervasive now. On April 10, 2023, the Bombay high court claimed in an order that it could not be ruled out that there existed “the possibility of stirring up emotions of a group of people” by a WhatsApp post of Javed Ahmed Hajam wherein he described the abrogation of Article 370 as a “black day” and also wished Pakistan “Happy Independence Day” – thereby upholding the Kolhapur police’s contention.
Fortuitously, the matter reached the Supreme Court bench of Justices Abhay S. Oka and Ujwal Bhuyan who set aside the high court order on March 7, 2024 by reiterating that the yardstick for “reasonable” speech, set up by Justice Vivian Bose way back in 1947, held that: “…(T)he effect of the words must be judged by the standards of reasonable, strong-minded, firm and courageous men (sic) and not those who scent danger in every hostile point of view.”
I use the word ‘fortuitously’ because I do wonder if the outcome would have been the same had the matter reached another bench of the top court. Nevertheless, there has been a palpable shrinkage of space in Indian polity for freedom and to exercise one’s rights.
Taking it lower
I wondered if the police authorities would respect and follow this yardstick in their own work, especially when National Security Advisor Ajit Doval famously said that “civil society has become the battleground for fourth generation warfare.” He claimed that civil society “can be subverted, divided and manipulated to hurt the interests of the nation.” By characterising a vibrant civil society and its activism to ‘fourth generation warfare’, the NSA was signalling the government’s virulent intolerance of dissent and independent non-government led activities.
The hyperbole of ‘subversion and manipulation’ appeared to be a call for thought policing and crackdown on those who refuse to kow-tow the government diktat. Pitching non-violent engagement in civil society to ‘warfare’ has another, somewhat sinister feature. War, unlike peace, turns opponents into enemies. In warfare an enemy is, to use a euphemism, meant to be ‘neutralised’. In peace, in contrast, an opponent is a potential ally, one to be befriended or at least not be pushed to become an antagonist. If civil society turns into a front of war, then ‘national security’ would trump the constitutional freedoms and rights of citizens.
The point to remember is that civil society activism is necessary as neither law-makers, law enforcers or justice providers are infallible; like all mortals they are prone to err, at times grievously. Civil society engagement and contestation help save the polity and society from causing damage, trigger conflict and prevent rulers from becoming despotic.
When the Bhima Koregaon-16 (BK-16) were confronted with the issue of our correspondence being shared with the investigating agencies via jail authorities, we protested and some of my fellow co-accused moved the Bombay high court and the Maharashtra Human Rights Commission. As a result, the jail superintendent thought of shifting us to another jail. We refused even as he tried to persuade us to agree to be transferred to another jail. All the BK 16 rejected this. Did the superintendent have to take this extreme recourse to talk to us? This instance shows how the jail bosses enjoy enormous arbitrary powers and rarely do the higher echelons of power hierarchy (police and the home department) countermand their decisions.
The jail superintendent was forced to take this course of shifting us to another jail because he had come under criticism from courts for a variety of reasons, including the death of Father Stan Swamy due to the criminal negligence of the jail authorities. Such arbitrariness seems to have spread lately when rulers are busy constricting citizens’ rights and empowering themselves. They back down only when they are faced with popular resistance – as the farmers’ protest showed and the three anti-farmer bills, hurriedly pushed through parliament during the pandemic, had to be withdrawn. The jail superintendent too had to appear conciliatory when faced with widespread criticism and protests. This brings another feature of our times to my mind.
The NSA, addressing the 2020 batch of IPS probationers at SVP National Academy in Hyderabad (November 12, 2021) told them that democracy is “laws made by the elected representatives.” This is what distinguishes ‘Rule of Law’ from ‘Rule by Law’; former being an essential feature of democracy and the latter of autocracy. That laws are made by elected representatives does not invest them with value. A report by Association for Democratic Reforms (ADR) on the 17th Parliament pointed out that 45 Bills out of 222 were passed in the Lok Sabha in a single sitting. Another 20 bills were passed in both houses of Parliament in a single day. This included the Bill to abrogate Article 370, downgrading after dismembering a once special status state into two Union Territories. This is what makes for tyrannical majority in Parliament where the ruling majority rams through important Bills without scrutiny and debate. The Supreme Court, in recent times, has cautioned the government against rushing through Bills in this manner as drafting errors result in a plethora of litigations that clog an already over-burdened justice system.
Curiously, the constitution bench of the Supreme Court saw nothing wrong abrogation of Article 370 and upheld the downgrading of JK as perfectly reasonable. The abrogation was accompanied by a crackdown in which more than 7,000 persons across JK were arrested and the JK high court chose to look the other way, refusing to entertain any habeas-corpus petitions of those arrested.
ADR also pointed out that in contrast to the 15th Parliament (2009-2014), which scrutinised 71% of the Bills brought before it, the 16th Parliament (2014-2019) managed to scrutinise a mere 26%. The result being that the substantive basis of Rule of Law was undermined by jettisoning scrutiny. Recall that the new criminal law codes were cleared by a truncated scrutiny by a parliamentary committee and the government was reluctant for the country to debate the Bills.
The remarkable thing about the ‘Bharat codes’ is that they virtually bring back the dreaded ‘Police Raj’ of the colonial era. The police in India is still governed by the colonial Act (Indian Police Act, 1861) and is modelled not as a community police but a semi-military formation. In BJP ruled states, it now carries out ‘bulldozer justice’ without any court order, as a routine activity. In the new codes, police custody has been increased for general criminal law from the current 15 days to upto 90 days, depending upon the offence. It provides arbitrary powers to the police to arrest, search and seize without a warrant from the court. An insidious form of sedition law with an expansive language and loose definition of crimes against the state has been inserted in Chapter 7 of the Bhartiya Nyay Samhita. Thus, instead of decolonising the criminal law codes and putting citizens’ interests and rights at the centre, the new codes make citizens subservient to authority.
I recollect my 11-day long interrogation by the National Investigation Agency (NIA) in July 2020, during the course of which, I was told that once Parliament passed a law and if I had any reservation regarding it, I should turn to the court instead of protesting against it. I contested this and said that because citizens elect their representatives, it does not mean that they mortgage their sovereignty for five years and must simply follow what is dished out to them. I insisted that citizens retain their right to oppose laws that are unjust, unfair and divisive.
The NIA investigators were unhappy at civil liberties organisation such as People’s Union for Democratic Rights (PUDR), of which I am a member, for its criticism of the UAPA as well as its criticism of NIA repeatedly failing in cases involving Hindutva terror. One investigator was surprised that civil liberties groups protested the trial court order awarding life sentence to G.N. Saibaba and five others. Now that all of them have been acquitted by the Bombay high court, I wonder if my interrogator would see merit in our protests. I must add that these exchanges were conducted in a relatively decorous manner, although being in their custody gave it an ominous hue, but I must admit that I did not feel intimidated.
Sum of the above
The prime minister’s advocacy of paramountcy of duty read with substantive hollowing out of ‘Rule of Law’ means that citizens are expected to obediently subject themselves to authority, circumscribing of their freedom and rights. With a dithering judiciary, speedy justice and fair play become victims of the Executive’s over-reach where arbitrary and unreasonable actions enjoy a free hand.
Ironically, those imprisoned, and those who are not, are now having to confront a situation where a citizen’s life and liberties are constricted and their voices muted. I faced prison because such was the law (UAPA). I was implicated in a victim-less offence and thrown in jail without being tried and convicted. It appears to me that the attack on Rights and the invocation of Duty, read with the argument of civil society being cast as the new battleground for fourth generation warfare portend a crackdown on those who do not accept the official narrative. A prisoner, meanwhile, faces the likelihood of the jail authorities’ wrath if he dares to be curious or to raise questions regarding his rights as a prisoner.
To conclude, I can do no better than to cite Camus again: ‘I merely wanted to express that anguish I feel every day when faced with the decrease of liberal energies, the prostitution of words, the slandered victims, the sunny justification of oppression, the insane admiration of force.’
It is at a time like this that one faces a critical choice: to either fall silent and submit to the authorities or to continue to strive and struggle for freedom, unmindful of the outcome. As my co-accused, father Stan Swamy reminded us, we are not “silent spectators”.
Courtesy: The Wire