news Saturday, May 23, 2015 - 05:30
In its ruling on May 22, the Kerala High Court called the “Thunderbolt” commandoes of the Kerala police “nothing but disguised aberration of law in uniform”. In simple English, it called the police lawbreakers where “protector has become aggressor”. The court was hearing the petition of Shyam Balakrishnan who was stripped searched by the police on charges of being Maoist under the Unlawful Activities Prevention Act (UAPA). The court said that Maoism was not a crime and security forces could not imprison someone simply because they held Maoist beliefs, and added that the state should arrest only those who have committed a crime. In essence, the court distinguished between holding a particular belief or ideology and committing actions in furtherance of that belief or ideology. In the case of Balakrishnan, the Kerala High Court said: “It is the activities of the Maoists which have to be curbed if it affronts to the law of the land.  But, the State moved to nab the Maoist like a predator vying for prey.  This is nothing but disguised aberration of law in the cloth of uniform and the protector has become aggressor.” There are four takeaways from the above statement: One, this not the first time the higher judiciary has taken such a view and said that the police have committed excesses in their zealousness to nab Maoists. In the past too, the Supreme Court and other high courts in the country have ruled in a similar manner. Granting bail to Binayak Sen in 2011, the court said: “If Gandhi's book was found in my house, would that make me Gandhian?” These remarks were made in light of the prosecution arguing that Maoist literature had been found in Sen’s possession. But much earlier, when hearing a POTA case there must be something to suggest that an accused under the law had “acted with intent of furthering or encouraging terrorist activity or facilitating its commission”. POTA was repealed, and currently it is the UAPA under which terror charges are usually applied. Two, it drew a distinction between the beliefs and the activities of a person, in terms of whether any action of the accused constituted a cognizable offence. Three, calling the police lawbreakers in uniform is not an aberration, neither in connection with the crackdown on Maoists, not with relation to crime in general. It is routine in a myriad ways. Four, this is unlikely to have any effect, except to elongate the list of cases in which the higher judiciary has said that merely holding certain beliefs does not itself constitute a crime, but that the police should have reasonable evidence of an actual activity that qualifies as an offence. Despite the many rulings, in the last five years alone, there have been many arrests under UAPA which have received widespread attention. Although there is no exact number, most human rights groups and activists agree that cases under UAPA run into a few thousand, and many of people have been falsely branded as Maoists to curb dissent.   In its report on free expression in India titled Imposing Silence, PEN International included UAPA as one of the laws that the Indian government used to stifle views it considered uncomfortable. The report said: “The very broad language deployed by the act is, like many of the other laws discussed here, vulnerable to misuse by overzealous private citizens, police and judicial officials and may catch legitimate political speech.” It added: “Several human rights groups in the country have reported that UAPA has been used in conjunction with “fabricated evidence and false charges to detain” and therefore silence peaceful activists.”
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