Opinion | Three cheers for high courts
It is a sad comment on the state of India’s democracy that a person can spend months in jail for a speech promoting harmony and amity
I have gone through the inner case diary produced in a sealed cover along with pen drive and found that though her presence is seen in a peaceful agitation, which is a fundamental right guaranteed under Article 19 of the Constitution of India," the police have “failed to produce any material that she in her speech instigated women of a particular community." So wrote Delhi high court judge Suresh Kumar Kait while granting bail to Devangana Kalita of the feminist collective Pinjra Tod on 1 September. Kalita and her flatmate, fellow Pinjra Tod member Natasha Narwal, have been in jail since May, accused of inciting riots in north-east Delhi in February. The administration has presented the violence in Delhi as a conspiracy hatched by activists agitating against the discriminatory Citizenship (Amendment) Act (CAA).
On the same day that Kalita was granted bail, a bench of the Allahabad high court comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh ordered the release of Kafeel Khan, also accused of inciting violence during the anti-CAA agitation, in his case through a speech delivered at the Aligarh Muslim University (AMU) in December. The judgement said Dr Khan’s address “nowhere threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence."
It is a sad comment on the state of India’s democracy that a person can spend months in jail for a speech promoting harmony and amity, but Dr Khan has endured worse. Back in 2017, lives of infants in the Gorakhpur hospital where he was employed were threatened by a lack of medical oxygen resulting from a failure of the administration to pay overdue bills. He procured oxygen cylinders using his own connections and money, a heroic and selfless act that resulted in him being jailed for dereliction of duty. He was absolved of all charges in September 2019, a few months before being locked up under the stringent provisions of the National Security Act for his AMU speech.
On 21 August, a division bench of the Bombay high court at Aurangabad comprising Justices T.V. Nalawade and M.G. Sewlikar quashed cases against foreign citizens who had attended a convention of the Sunni Tablighi Jamaat in Delhi which became India’s first covid-19 superspreader event. The accused had entered India on valid visas and attended a meeting which, to the best of their knowledge, was perfectly legal. Even if a contravention of the law had occurred, it was on the part of the organizers and not ordinary delegates. Yet India jailed hundreds of foreigners from dozens of countries for months before freeing most on the condition that they admitted guilt.
Justice Nalawade, considering the case of some of those still detained, was scathing in his assessment, writing, “A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is probability that these foreigners were chosen to make them scapegoats." Nalawade stated that in order to quash an FIR, it was important to consider whether it was malicious. He concluded in the affirmative, connecting the Tablighi case with the agitation against the CAA and proposed National Register of Citizens (NRC) that many Muslims view as precursors to their disenfranchisement. The arrests of the Tablighis, the judge wrote, “gave warning to Indian Muslims that action in any form and for any thing can be taken against Muslims".
Many commentators have viewed the crackdown on anti-CAA activists and on Tablighi Jamaat members as part of a pattern of increasing persecution of Muslims in India. However, it is one thing for published opinion pieces to link the cases of Devangana Kalita and Kafeel Khan with those of foreign Tablighis, and quite another for a high court judge to make the same connection in a judicial order.
Justice Sewlikar, while concurring with the quashing of the FIR, dissented from Justice Nalawade’s linkage to the CAA and NRC, calling it outside the scope of the petitions. It might be that Justice Nalawade’s contentions fell short of the rigorous standards of proof demanded by courts but the targeting of Muslims he alluded to is glaringly obvious.
An instance of this is the double standards with regard to the spreading of covid-19. There have been cases of Hindu and Sikh religious gatherings in places like Tirupati and Nanded failing to adhere to distancing norms, where hundred of infections have been detected, but these have attracted no penalty.
Another infraction that invites no punishment is the act of arresting peaceful activists on accusations that seem baseless.
There are three steps involved in perverting justice, India style. First, the police, being beholden to politicians, stand to lose a lot for failing to toe the line, but give up nothing for jailing people on false charges, and are therefore incentivised to do the latter. Second, consequent to the invention of a category called the “urban naxal", peaceful dissent frequently becomes entangled in the gravest allegations. It is viewed as seditious, destabilizing, a threat to national security. Evidence related to such serious charges is often deemed too sensitive to be made public, and is handed over to judges in sealed envelopes, making it easier to fabricate and harder to contest.
Third, the elevation of charges attracts the imposition of draconian laws like the Unlawful Activities (Prevention) Act (Uapa). The Uapa was amended last year to allow individuals to be deemed terrorists, where earlier only organizations could be so categorized. Since the law defines the word “terrorism" vaguely, it gives the state wide latitude to imprison citizens on flimsy pretexts with no possibility of bail.
That is why Kalita will remain in jail despite the strong judgement in her favour. She faces other charges framed under Uapa, as do dozens of students, human rights activists, academics, environmentalists and civil rights lawyers across the country. We should cheer the recent judgements of the Delhi, Allahabad and Bombay high courts, for they bolster waning faith in the judiciary’s commitment to civil rights, but we ought also to keep in mind that their effect is the equivalent of lopping off one of Ravana’s limbs or heads, which simply grow back, leaving India’s criminal injustice system intact.
Girish Shahane writes on politics, history and art.