A threat to the nation, really?

Before I took charge of the office of the DGP, Punjab, in 1986, I had no experience of combating terrorism. After having been in the state for over three years, I feel empowered to pontificate on what constitutes a terrorist act and what does not. If Natasha Narwal, Devangana Kalita and Asif Iqbal have been declared as terrorists by the Delhi Police and arrested under the draconian Unlawful Activities (Prevention) Amendment Act, which entitles the police to dub an individual a terrorist, I will certify the police understanding of terrorism as flawed.

If the law was fairly and honestly interpreted and used, the police would have a powerful tool up their sleeves to counter truly subversive activities. But if it is misusing the Act to suppress dissenting voices that serve as irritants to autocratic regimes, then the application of its provisions to conscientious dissenters is nothing short of demonic! Natasha, Devangana and Asif could not be classified as terrorists by any stretch of imagination. They indulged in neither murder nor mayhem, did not encourage by words or deeds the forcible removal of the elected government from office, said or did nothing to incite their followers to revolt against the ruling dispensation. The Delhi High Court perused the entire thousand-page chargesheet filed by the Delhi Police more than a year ago and found no evidence to show that these three young students were terrorists.

The police could honestly allege that they were inciting local Muslim women to sit in dharna at Shaheen Bagh, disrupt traffic and shout slogans in protest against the CAA. But did they provoke the riots in Delhi in February 2020? In my view, no! Further, provoking riots does not make them terrorists.

The Delhi High Court adjudged the confinement of the students as ill-intentioned and ordered their release on bail. The police went in appeal to the Supreme Court, which in its wisdom did not interfere with the bail order but felt that the hundred-page order of the high court in a mere bail matter was extraordinary and needed a closer look.

That the Supreme Court did not interfere with the high court’s order is significant. The amendment to the UAPA, passed in 2019, had added “individuals” to “organisations” which could be dubbed terrorists by the police. The Delhi High Court held that the three youths did not fit the bill. The Supreme Court probably wants to determine this for itself. It wants to judge if the release of such accused on bail will militate against the State’s ability to keep terrorism in check and should the courts before trials begin to look so closely at the evidence to determine whether the police have used their discretion of proclaiming the accused as terrorists? The stringent provisions of the Act rule out grant of bail if the police say that terrorism is involved. Should the police be empowered with such singular authority that can keep citizens in jail for long years without trial?

It is unusual for cases prosecuted under the Act to start the course of trial till many years intervene. The accused languish in jail for years. The very process of trial becomes a punishment imposed by the investigating arm of the judicial process system. The police, like in the case of fake encounters, become the investigator, the prosecutor and the judge! If it can be ensured that trials would start and end in a year at the most, the ends of justice would have been met. In this particular case, I had spoken to the Police Commissioner of Delhi on the phone. He had averred that he had enough evidence to nail the students. My reply was that in that case let the trial start so that the people know that they were real terrorists and not mere protesters exercising their lungs.

But this regime has been consistently applying the UAPA and the sedition clause of the IPC to magnify offences that would only invite a slap on the wrists. The most recent example is that of Disha Ravi, a young student from Bengaluru who was whisked away by a police party from Delhi by plane. Mercifully, she was rescued by the trial court itself after spending three-four uncomfortable nights in the cold of Delhi at the height of winter she had never experienced in her native clime. Her only fault was that she was an environmental activist and was probably coming in the way of the government’s development agenda.

Since 2016, after the BJP won its landslide victory in the Lok Sabha elections of 2014, riding on the crest of a wave called hope, opponents and critics of the regime have been saddled with these harsh interpretations of the laws, resulting in a steep ten-fold increase in the number of cases. Only 2 per cent of UAPA and sedition cases that have run through the gauntlet of trials have ended in conviction, which means that 98% of the accused have spent years in prison for offences they had not committed or the evidence to prove it was scanty!

Of all the democracies, this nation has the unenviable record of accommodating more undertrials in our jails than actual convicts. The undertrials jostle for space to sleep and a piece of cloth to spread on the floor. My college friend, Rajamani Iyer, whose son was taken in for a white-collar offence he swore to me he had not committed, was denied bail for months. And after the bail was finally granted, he lingered in the Arthur Road holding centre in Mumbai for 24 days till he agreed to accept court-favoured sureties who he had to compensate! I brought this fact to the notice of the then Chief Justice of the Bombay High Court through a letter. I am sure she must have ordered an inquiry and taken some corrective action, the details of which have not been communicated to me.

We have numerous flaws in our democracy. But only democracies slipping into autocracy treat the right to liberty cavalierly. The right to liberty is guaranteed by our Constitution. Our courts have always prided in upholding it. Yet, recently, habeas corpus petitions have not been treated with the same reverence as they were earlier. Activists languish in jails despite their advanced age, their disabilities and chronic illnesses. Are they really such a threat to the existence of the nation as my ex-colleagues in the IPS say they are?