That the Delhi high court on Monday ended the house arrest of journalist Gautam Navlakha must be seen as a determined intervention by the judiciary to ensure that voices of dissent are not muzzled by the government. It was a logical follow up of the unprecedented decision of the Supreme Court to stop the police in its way to lock the five dissenters in jail under a draconian law.
“The Supreme Court vindicates our stand; Maoists were trying to kill PM Modi.” This was the comment Maharashtra Chief Minister Devendra Fadnavis made immediately after the apex court delivered a fractured verdict with a 2:1 majority in the petition filed by historian Romila Thapar, economists Prabhat Patnaik and Padma Bhushan awardee Devaki Jain, sociologist Satish Deshpande and human rights activist Maja Daruwala. This petition was filed for the constitution of a special investigation team (SIT) and bail to the five civil liberties activists who were arrested/detained on August 28, 2018.
The primary issue that was debated in the Supreme Court was whether the court should intervene in the arrests or should the investigating agency (the Pune police) should be allowed to carry on with its investigations. Doubts were cast on the Pune police right at the inception and the manner in which the scoop to lift the five activists was conducted. It looked quite evident that the real motive was different from what is projected in the media. This led to a petition being filed in the SC by five citizens who are respected in their fields.
The issue that came to light was the jurisdiction of the Supreme Court in its intervention under the Unlawful Activities (prevention) Act (UAPA), a re-incarnation of the Terrorists and Disruptive Activities (Prevention) Act (TADA), 1985, and Prevention of Terrorists Act, 2002. The majority upheld that there is no need to intervene and the accused should seek the remedy through the due process of law. But what is the due process of law? The provisions to seek relief of bail are a complete anti-thesis of criminal jurisprudence where it is not the state but the accused who has to prove his innocence beyond doubt. That is why bails are hardly granted. It means that once a person is picked up under the UAPA it will take years together to come out of the jail.
But why is it that the Supreme Court did not allow the accused to be immediately arrested? As we all know, there is no provision of bail under the UAPA. Also there is no provision of an anticipatory bail. Hence the provision of seeking a remedy under the writ petition was itself a debatable issue.
However, the Supreme Court not only allowed the house arrest to continue for a period of more than one month but even allowed a further period of four weeks for them to not to be arrested.
What does this signify? Once the petition for an SIT gets dismissed and bail not granted the accused should have been handed over to the Pune police. But this did not happen immediately. Instead, another four weeks of house arrest has been extended.
This amply demonstrates the point that the Supreme Court, too, is not satisfied with the way the investigations are conducted though the dissenting opinion of Justice D.Y. Chandrachud is a scathing indictment of the Pune police. He has termed the entire exercise as an attempt to muzzle dissent and the police sponsoring a media trial of the accused. Nothing more could be worse for a police to face a comment of the order as delivered by the dissenting judge.
Even keeping his opinion aside and considering the judgment of Chief Justice Dipak Misra and Justice A.M. Khanwilkar, nowhere have they mentioned or given a clean chit to the police of Maharashtra. In fact, the same bench not just admitted the petition but heard it for a period of one month. This is generally not the case registered under the UAPA.
The rejoicing by either the Mahartashtra chief minister or by the spokesperson of the BJP is to build up a campaign on the lies that gets spread as post truth reality.
CPM general secretary Sitaram Yechury has explained how this new post-truth campaign is completely divorced from the ground realities and harps solely on the propaganda unleashed very sharply.
One of the reasons to harp on such post truth propaganda is to divert the attention of people from their actual miseries.
But these are warnings of the wave rising to engulf our polity of dissent in the country. We all know about the 'five' who have been arrested. Not just are they lawyers, poets, journalists, writers and civil rights activists in their own capacities, but those who do not hide their identities.
Take for example Gautam Navlakha's articles and opinion are expressed quite unambiguously on his position on Kashmir and other issues. Similarly, views of other individuals may not match the views of the ruling dispensation. But that does not just turn them into terrorists as proclaimed by the Pune police. And it is this very point that Romila Thapar expressed in her remarks. She stated that the forms of terrorism are varied; one is that of individuals and groups that embark on this path and another is by the state itself to muzzle the dissenting voices. Both the forms are to be combated and fought back.
Only time will tell whether the five, now who are under house arrest will be able to see the dawn of liberty within four weeks or the state will be able to prow them and a long drawn battle will have to be fought on. The first signal has, hopefully, come on Monday when the Delhi High Court freed Gautam Navlakha from house arrest and quashed the trial court’s transit remand order which he had challenged before the matter was taken to the Supreme Court. The High Court also rejected the stand of the Maharashtra government that his house arrest be extended. Finallt, some hope from the judiciary, at last.
The author is former deputy mayor of Shimla and a commentator on public affairs
