By Arshia Jain
Published On: December 20, 2021 at 16:30 IST
Introduction
The right to a free, complete, and dignified life is one of the most fundamental values of human existence. Every individual has the right to conduct their lives on their terms, free from undue intervention. Only when people have the freedom to defend their own lives and liberties can democracy be truly effective.
Article 21 of Part III of the Indian Constitution of 1950 defines the right to life and personal liberty as follows: “No individual shall be deprived of his life or personal liberty except through the manner specified by statute.”
In India, these fundamental rights encapsulate the people’s essential principles and are protected from governmental action, which means that no state authority can violate a citizen’s fundamental rights unless it follows the legal system.
As a result, the state is prohibited from infringing on a person’s right to life and personal liberty under this Article. All bodies with legislative capacities, such as the federal and state governments, municipal governments, and so on, are referred to as “states.” As a result, violations of the right by private entities are not protected. The terms “life” and “personal liberty” allude to a wide variety of rights that have arisen as a result of the courts’ interpretation of Article 21.
The Bhima Koregaon case
Bhima Koregaon, a small town in Maharashtra’s Pune district that is now the epicentre of unrest, is linked to a pivotal period in Maratha history. On January 1, 1818, a few hundred Mahar soldiers of the East India Company, backed by the British, defeated the massive Peshwa military, led by Peshwa Bajirao II, in Koregaon. This conflict has since become legendary in Dalit history. Ambedkar Dalits do not see this through the narrow lens of nationalism and imperialism.
Approximately 500 Mahar troops fighting for the East India Company clashed with Peshwa Bajirao II’s 25,000-strong force, according to legend.
During that period, the Mahars were considered an untouchable caste, and the Peshwas refused to enlist them into the army. According to the Dalit version of the Koregaon Bhima conflict, Mahars challenged Peshwa Bajirao II to support his army against the British. Their offer was turned down. The Mahars were cordially welcomed into the British troops when they first met them.
In the Battle of Koregaon, the Mahar forces, led by the British, defeated the Peshwas. The triumph represented not just a victory for the Mahars, but also a victory for prejudice and injustice based on caste. In 1851, the British built a memorial pillar at Koregaon Bhima to honour the men who lost their lives in the conflict, the majority of whom were Mahars.
Who is Sudha Bharadwaj?
Sudha Bharadwaj, a 59-year-old human rights lawyer and activist from India, has dedicated her life to defending Indigenous peoples and workers’ rights. She has been held in pre-trial imprisonment since August 2018, when she was arrested under the harsh Unlawful Activities Prevention Act (UAPA) on false charges of having ties to Maoist terrorist groups, based on manufactured evidence.
She and 15 other human rights activists are accused of conspiring to instigate Dalits at a public gathering in Bhima Koregaon village in Maharashtra’s Pune district, which resulted in violence in January 2018. Sudha’s treatment exemplifies Prime Minister Narendra Modi’s government’s increasing use of oppressive measures to suppress dissent and punish human rights campaigners.
Unlawful Activities Prevention Act (UAPA), 1967
India’s anti-terrorism legislation is based on the Unlawful Activities (Prevention) Act of 1967. It was enacted to combat criminal conduct, and its measures have earned it the moniker “punitive.” It encapsulates the spirit of the 1969 Preventive Detention Act, which was never enforced. Over the years, the statute has been revised numerous times to widen its scope of application.
The most terrible characteristic of the UAPA is that anyone detained under it can be jailed for up to 6 months (or 180 days) without even having to submit a charge sheet. In comparison, and to emphasize the gravity of the situation, this period is only extended to three months (90 days) under ordinary criminal law, during which the detained person is eligible for bail.
The 2019 Amendment
For the time being, only organizations may be blacklisted or punished for performing a terrorist act. The central government can now declare a person a terrorist, thanks to a 2019 amendment voted by the Rajya Sabha on August 2nd and signed by the President on August 8th. As a result, the act’s popularity has skyrocketed. A person has 45 days to register an objection to such a declaration with the Home Ministry. A review committee comprising a retired or current judge as chair and three other members will be formed, to which the aggrieved party will request review.
The amendment has been criticized for granting the government autocratic power over the suppression of opposition. It empowers the government to designate a group or individual as a terrorist organization or terrorist if the following criteria are met:
- It is involved in or commits acts of terrorism.
- Terrorism is being planned or promoted.
- Other than that, he’s a terrorist.
The opposition has voiced concerns that the proposed amendment might be used to target civil society activists who work for political opponents. In criminal law, a condemned person is assumed “innocent until proven guilty.” This philosophy underpins the criminal justice system. This theory is contradicted by UAPA, especially after the 2019 modification. As a result, it has been charged with violating the 1967 International Covenant on Civil and Political Rights.
The legislation is once again at the centre of a debate following the arrest of parent Stan Swamy in connection with his role in the 2018 Bhima Koregaon incident, which rattled Maharashtra. In recent years, many notable activists have been arrested under UAPA, creating an uproar in political circles. Justice Madan Lokur, a retired Supreme Court judge, has expressed reservations about the use of UAPA to suppress dissent.
The Case
Tushar Ramesh Damgude filed the FIR at Vishrambaug Police Station on 8.1.2018. The FIR was filed for violations of Sections 153A, 505(1)(b), and 117 read with 34 of the Indian Penal Code. He was in the building business, according to the first informant. He learned about an event scheduled by Elgar Parishad at Shaniwar Wada in Pune on December 31, 2017, through a social networking site. On December 31, 2017, at about 2:00 p.m., he attended that program. In the FIR, he also mentioned that there were a few lecturers, comperes, singers, and other artists on stage. Kabir Kala Manch and its members were known to the informant. He’d heard about them in the news and on social media.
He went on to say that some of the performers performed brief plays, danced, and sang songs. The performances, he claims, were provocative and had the consequence of causing communal discord. Some 3 / 68 4 1-BA-428-19-order controversial remarks were delivered at the time. At the venue, a few offensive and controversial publications were stored for sale. In the FIR, he claimed that the banned Communist Party of India (Maoist) (hence referred to as ‘CPI(Maoist)’) was instigating violence by sowing communal discord.
According to him, members of the Kabir Kala Manch foment hate amongst different communities through their songs, plays, and lectures. As a result, rioting, burning, and stone pelting have occurred near Bhima-Koregaon. As a result, a police report was filed, naming six members of the Kabir Kala Manch. The inquiry progressed, and on 6.3.2018, Section 120B of the IPC was inserted based on the evidence acquired throughout the investigation.
Tushar Ramesh Damgude filed the FIR at Vishrambaug Police Station on 8.1.2018. The FIR was filed for violations of Sections 153A, 505(1)(b), and 117 read with 34 of the Indian Penal Code. He was in the building business, according to the first informant. He learned about an event scheduled by Elgar Parishad at Shaniwar Wada in Pune on December 31, 2017, through a social networking site. On December 31, 2017, at about 2:00 p.m., he attended that program. In the FIR, he also mentioned that there were a few lecturers, comperes, singers, and other artists on stage. Kabir Kala Manch and its members were known to the informant.
He’d heard about them in the news and on social media. He went on to say that some of the performers performed brief plays, danced, and sang songs. The performances, he claims, were provocative and had the consequence of causing communal discord. Some 3 / 68 4 1-BA-428-19-order controversial remarks were delivered at the time. At the venue, a few offensive and controversial publications were stored for sale. In the FIR, he claimed that the banned Communist Party of India (Maoist) (hence referred to as ‘CPI(Maoist)’) was instigating violence by sowing communal discord. According to him, members of the Kabir Kala Manch foment hate amongst different communities through their songs, plays, and lectures. As a result, rioting, burning, and stone pelting have occurred near Bhima-Koregaon. As a result, a police report was filed, naming six members of the Kabir Kala Manch. The inquiry progressed, and on 6.3.2018, Section 120B of the IPC was inserted based on the evidence acquired throughout the investigation.
On April 17, 2018, the investigating agency carried out searches at the homes of eight people:
- Rona Wilson, R/o. Delhi,
- Surendra Gadling, R/o. Nagpur,
- Sudhir Dhawale, R/o. Mumbai,
- Harshali Potdar, R/o. Mumbai,
- Sagar Gorakhe, R/o. Pune,
- Deepak Dhengale, R/o. Pune,
- Ramesh Gaychor, R/o On 6.6.2018, Shoma Sen and Mahesh Raut’s homes were searched.
During the searches, papers were recovered from numerous computers, laptops, pen drives, and memory cards, according to the investigative agency. The seized items were transferred to the Forensic Science Laboratory (‘FSL’) for examination. The clones that had been cloned had arrived. On 17.5.2018, the aforementioned Sections of UAPA were implemented based on the analysis of those cloned copies.
It is the argument of the investigative agency, as stated in the State’s affidavit, that it was discovered, based on the seized and recovered incriminating material, that a few more people were involved in the criminal conspiracy, and that their involvement was not only incidental but crucial. As a result, searches were carried out at the homes or offices of additional defendants, including the petitioner.
The other defendants were Varavara Rao, a resident of Hyderabad, Vernon Gonsalves, a resident of Mumbai, Arun Ferreira, a resident of Thane, and Gautam Navlakha, a resident of Delhi, in addition to the petitioner, who was a resident of Faridabad. On August 28, 2018, they were detained and placed under house arrest. The gadgets were retrieved and forwarded to FSL for analysis.
The final analytical reports for orders 5 / 68 6 1-BA-428-19 are currently pending. In the State’s affidavit, it is stated that in the document titled “The outlawed terrorist group CPI(Maoistgoal )’s is stated as follows in “Strategy and Tactics of The Indian Revolution”: “the essential task of the Indian Revolution is the capture of governmental power.” To complete this essential mission, the Indian people will need to form a people’s army, which will have to wipe away the Indian State’s armed forces through war and replace them with a people’s democratic state, as well as establish their political power.
The essential aim of the People’s Democratic Revolution of India is to construct the people’s State machinery by defeating the reactionary ruling classes’ current autocratic State machinery – the state’s army, police, and bureaucracy – through war.”
According to the investigating agency, the CPI(Maoist) Party is fighting a people’s war by organizing people on a huge scale both militarily and politically to achieve the fundamental aim. The investigating agency believes that the banned organization is attempting to sow discord amongst different classes to overthrow the democratically elected government and gain political power through armed revolution.
As a result, the scope of the investigation was not limited to determining the purpose and impact of Elgar Parishad’s program on December 31, 2017, or to investigating the violence that followed the event; rather, it was broadened to uncover a much larger conspiracy to seize political power through armed revolution by mobilizing the masses.
On the 28th of August 2018, the applicant and others, Varavara Rao, Arun Ferreira, and Vernon Gonsalves, were arrested, and a petition was filed in the Hon’ble Supreme Court, Romila Thaper and others Vs. Union of India and others, Writ Petition (Criminal) No.260/2018, Romila Thaper and others Vs. Union of India and others. It was resolved in a ruling dated September 28, 2018. It was made up of both mainstream and minority viewpoints. The following are the prayers in that Petition that are replicated in the judgment:
- Issue an appropriate writ, order, or direction requiring an independent and thorough investigation into the arrests of these human rights advocates in connection with the Bhima Koregaon violence in June and August 2018.
- Issue a formal writ, order, or instruction to the Maharashtra government demanding an explanation for this massive round of arrests;
- Issue an appropriate writ, order, or direction directing the immediate release of all activists arrested in connection with the Bhima Koregaon violence, as well as the stay of any arrests until the case is thoroughly examined and decided by this court.
Conclusion
Finally, as Honourable Justice D.Y. Chandrachud correctly stated, “Dissent is the safety valve of a Democracy.” The rule of law is broken when the use of state machinery to stifle criticism instils panic. With the arrest of Stan Swamy, the NIA is sending a message to the rest of society and the human rights world that there is no limit to how far they will go to repress and squash dissent. Stanislaus Lourduswamy, commonly known as Stan Swamy, thinks that everyone, regardless of faith, community, or race, must stand up for fairness and realism.
The most essential thing to him in all of his encounters is to be humane. Other Indian human rights activists have spoken out against Fr. Stan Swamy’s confinement, demanding his immediate release and calling for an end to arbitrary arrests of law-abiding citizens. He has always acted within the country’s democratic and constitutional norms. It is not only ludicrous but also a total miscarriage of justice, that anyone could assume he was seeking to “overthrow the nation’s constitution.”
Also Read:
Supreme Court rejected NIA plea challenging default bail to Sudha Bharadwaj in Bhima Koregaon case
Bhima Koregaon Case: Sudha Bharadwaj granted Default Bail by Bombay HC
What is the case of Father Stan Swamy?
ABOUT THE AUTHOR
Arshia Jain is a second-year law student at SVKM’s NMIMS, School of Law in Navi Mumbai, Mumbai, India, pursuing a BBALLB. When it comes to work, she is a dedicated and hardworking individual. She believes in pursuing one’s dreams and remaining optimistic throughout life.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
References
- Sudha Bharadwaj Vs State of Maharashtra Criminal Bail Application NO. 428 OF 2019
- Stan Swamy Bail rejected
- Judicial Interpretation of Right to Life and Personal Liberty under Article 21 of Indian Constitution
- Chronology of harassment against Human rights defender Sudha Bharadwaj
- Bhima Koregaon Case