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Dissent and Democracy: Denying Access to Justice to Political Prisoners in India- I

Updated: Feb 10, 2021

By Medha Srivastava

In a recent report by the United Nations Office on Drugs and Crime, the institution pointed to the COVID crisis not only being a public health emergency, but one of access to justice as well. The slowing down of judicial processes, combined with political unrest in several countries, has also given rise to the problem of access to justice to undertrial prisoners.

The Cambridge English Dictionary defines a political prisoner as “someone who is put in prison for expressing disapproval of their own government, or for belonging to an organization, race, or social group not approved of by that government”. Currently, several individuals across India are being arrested on various charges concerning their involvement in what the state sees as seditious or “anti-national” activities. Under International Human Rights Law, nobody can be detained without legitimate reason, and has in case of the same, a right to a fair trial. Further, Article 9 of the International Covenant on Civil and Political Rights (ICCPR, of which India is a signatory) details the right of a person in detention to be informed of the charges against them and also their right to a timely and fair trial. In this regard, the criminal justice system and the higher judiciary in India have failed the political activists in India, by denying them the right to a fair and transparent trial, and hence access to justice.

In 2018, several academics and activists were arrested for their suspected involvement in the Bhima-Koregaon incident, where unrest broke out at the bicentenary celebrations of the Bhima Koregaon battle. The unrest broke out after a peaceful gathering of a group called the Elgar Parishad, who gather in support of the Dalit community in India. Following the arrest of Surendra Gadling, Shoma Sen, Sudhir Dhawale, Mahesh Raut and Rona Wilson, the police also arrested activists Varavara Rao, Sudha Bharadwaj, Arun Ferreira and Vernon Gonsalves. So far, a total of 16 arrests have been made in this case, with the accused still in jail. These arrests, starting in 2018, were made hastily on the basis of information on the hard drives of human-rights lawyer Surendra Gadling and the prison-rights activist Rona Wilson.

The Supreme Court of India has been vocal about the problem of backlog that plagues the justice delivery system, particularly in the lower courts. Every year, the Lok Adalats pride themselves on facilitating out of court settlements as well as speedy justice delivery for those seeking it who do not have the means or security to drown in the long-drawn legal process. But now the judicial system is facing a different kind of challenge- namely the abuse of the legal framework for national security. It is being used to jail political activists without sufficient proof against them and they are detained without heed to their basic human rights. According to the Report of the National Crime Records Bureau in 2018, the latest statistics show that 69% of the inmates in jails across the country are undertrials. As if the number and condition of undertrials in India was not bad enough, activists and academics questioning the government are now adding to these numbers.

Selective Justice and granting of bail

This blow to peaceful dissent and inaction by the Courts was hardened further when the Supreme Court decided to grant bail to Arnab Goswami of Republic TV, who was arrested on the charge of abetment of suicide of an interior desginer and the designer’s mother. After denial of bail by the High Court, the appellant (Goswami) filed a Writ Petition of Habeus Corpus in the Supreme Court of India. The Court outlined its reasons to grant Goswami bail, emphasizing the need to respect personal liberty and free speech. What stands out the most on an initial reading of the Order is the engagement of the Supreme Court at the legal nuances of Goswami’s case, carefully perusing the different stages of filing charges, arrest and the petitions filed on his behalf in the High Court, as well the High Court’s error in refusing him bail. This, coming from a Court whose hands were mysteriously tied when it was faced with the cases of academicians and scholars arrested and charged under draconian laws with flimsy evidence, raises serious questions.

Many of these political activists in jail find themselves under difficult or unusual circumstances. Telugu poet and activist Varavara Rao, after weeks of being severly ill, got shifted to JJ Hospital in Mumbai. Sudha Bharadwaj, who has been in jail for two years since 2018, was accused of “taking advantage of the pandemic” when she applied for medical bail from Byculla jail to the Bombay High Court. The High Court asked the NIA to inform them on the social distancing measures in jail given COVID spread concerns. However, ultimately the Court was convinced that she was getting ample treatment in the hospital and was not eligible for bail. In 48 days, her bail hearing was adjourned 9 times. Detention of this kind violates the civil rights of individuals who peacefully dissent. That justice is being denied to them as they languish in jail is particularly worrisome now in light of the pandemic. The Supreme Court of India itself has laid down in countless judgments why the right to a fair and speedy trial is of utmost importance, even observing in Maneka Gandhi vs. Union of India that in the broad sweep and content of Article 21, right to speedy trial is implicit.

When the case for the Appellant Mr. Goswami was being argued, there were arguments that he was arrested on malicious grounds, being outspoken about the Maharashtra government and police. The discretion exercised by the Supreme Court in his case, and the inaction in other similar ones, leads to serious questions of discretion taking precedence over law in these cases. One wonders at the courts’ exercising selective justice, particularly at a crucial time for India when press and academic freedoms are being threatened.

The law laid down by the Supreme Court relating to bail is also unclear and gives wide discretion to the courts, which can be an issue particularly when the courts do not function independently. The Supreme Court has been criticised for applying the provisions and jurisprudence under the Code of Criminal Procedure but does not pay due heed to special legislation. The Court has on occasion been liberal in granting bail, considering that personal liberty is a guaranteed right under Article 21. Considering that jails are slowly turning into hotspots for COVID, one would expect that the courts would pay heed to the exceptional circumstances and apply the law of bail more proportionately to these cases. This was clearly evidenced when the Court was quick to overlook the complexities of Goswami’s case, allowing him bail, when several activists are still in jail despite suffering from medical conditions.

The inherent bias of the law

While International law and covenants have laid down the importance of humane conditions to persons in detention, India’s criminal justice system seems to be inherently rigged against these political prisoners. The legislations under which most political prisoners, activists and academics are being arrested and detained are themselves the subject of much debate. Legal scholars and activists have expressed their concerns in particular about the infamous Unlawful Activities Prevention Act (UAPA) and the working of the National Investigation Agency (NIA), particularly in regard to the weak standard of proof required and the grey areas in the collection and usage of evidence.

The recent Farmers’ Movement protesting the new farm laws in India has also expressed its solidarity with the political prisoners, stating that they should be released as soon as possible. The individuals who spoke on behalf of the movement stated that like the farmers, the jailed activists had done nothing but uncovered the truths about problematic policies and laws of the government. Sadly, the criminal justice system and relevant laws are framed in a way to give these political prisoners a weak stand to start with, and need to be critiqued, and urgently reformed.

Medha Srivastava is a PhD student and researcher at the Humboldt University of Berlin, working in the area of judicial accountability, independence and performance evaluation, previously having worked at a Legal Policy think-tank in New Delhi in the area of judicial reforms.


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