Father Stan Swamy, a Jesuit priest from Tamil Nadu, died this week in police custody. He was 84 years old and suffered from Parkinson’s disease. His death has brought three important questions back into Indian headlines. First, what is the Elgar Parishad case and what links it to the violence of Bhima Koregaon in 2018 for which Father Swamy and fifteen others were arrested? Second, what is it about these sixteen activists and academics (known as the BK16) that made them a target for the then-BJP government in Maharashtra and the BJP government at the centre? Finally, why is the Unlawful Activities (Prevention) Act (UAPA) significant in this context, and why are demands to scrap it getting louder? Answers to these questions paint a bleak but accurate picture of contemporary Indian politics and society.
A Battle to be Remembered
The origins of this case go back to the event known as Elgar Parishad, held in Pune on 31 December 2017 to commemorate the 200th anniversary of the Battle of Koregaon Bhima. In this 1817 battle, a regiment of Mahar Dalits—considered among the lowest-ranked communities in the modern caste system—serving in the English East India Company army defeated the Brahmin army of the Peshwas of the Maratha Confederacy. The victory is celebrated every year and attended by thousands of Dalits and prominent activists who take part in the anti-caste themed festivities and speeches.
The day after the Elgar Parishad, on 1 January 2018, Dalits gathered at the Koregaon Bhima obelisk, a victory pillar of sorts, like they do every year to pay their respects to those who died in the battle. That year, however, the peaceful commemoration turned violent. Clashes broke out between the Mahars and the Marathas, another caste group whose members used to serve in the army of the Maratha Confederacy. Two people died, thirty-five were injured, and over three hundred were arrested.
Where do the BK16 fit in this story? They don’t. Most of them were not even present at the Elgar Parishad. In the months following the violence, though, their houses were raided, and they began to be arrested one by one. The charge sheets filed, first by Pune Police and then by the National Investigation Agency (NIA), accused the BK16 members of being part of the Communist Party of India (Maoist) and responsible for playing a major role in organising the Elgar Parishad event that was allegedly designed to provoke the violence that followed.
Using the Law Unlawfully
The Unlawful Activities (Prevention) Act (UAPA) of 2008 was passed by the government of Prime Minister Manmohan Singh who regarded the Maoists as “[India’s] single biggest internal security challenge.” Under the act, passed in 2009, CPI (Maoist) was designated a terrorist organisation. The BK16 members were arrested under the provisions of this law. They were accused of having a connection to this ‘terrorist organisation,’ based on evidence that appears to be planted, according to Arsenal Consulting, a Massachusetts-based firm that provides digital forensics services. This brings us to the second question: why does the state want these activists and academics locked up?
A closer look into the work of the BK16 members provides an answer. Father Stan Swamy was a life-long advocate of tribal rights. In Jharkhand, he worked with and for tribal communities who suffered from displacement and land alienation because of the government’s crony capitalist policies. More importantly, he fought against the arbitrary detentions of thousands of Adivasis accused of being Maoists. Father Swamy, too, believed that to be the reason for his arrest. Similarly, Sudha Bhardwaj, another co-accused, worked towards protecting the human rights of Chhattisgarh’s Adivasi population and has spoken out against the treatment meted out to minority communities by the Modi government and Hindutva fringe groups. Dr Anand Teltumbde, one of India’s most prominent intellectuals and a member of the BK16, was also a loud and significant pro-Dalit voice before his incarceration. Through their ceaseless witch-hunt of BK16, the government intends not only to suppress dissent but also warn dissenters of tomorrow about the consequences of it.
Punishing Dissenting Activism
Under the UAPA, courts are supposed to presume every allegation made in the First Information Report (FIR) to be correct if it seems so on the face of it. Bail can only be obtained if the accused produces evidence to prove they are innocent. And so the burden rests on the accused to contradict the allegations, which can prove to be impossible in most cases since investigations often go on for months beyond the arrest dates. The act makes it difficult for the accused to get bail and excludes the admissibility of evidence at the stage of bail. The powers of the judiciary are significantly reduced in this regard. Under the 2019 UAPA (Amendment) Bill, two more elements were added: The National Investigative Agency (NIA) will have much more control over the cases, rather than the police and the state machinery. Since the NIA is answerable to the centre, this effectively gives more power to the central government. Furthermore, the amendment will allow the government to label individuals, not just organisations, as terrorists. The UAPA quickly transformed from an act to protect the sovereignty of the nation to a convenient tool that can be used to declare any individual a terrorist and be put behind bars indefinitely.
Father Swamy’s death represents the vindictive usage of a law that is infamous for its low conviction rate. His trial had not even begun in the two years he was kept behind bars. He was not a flight risk and had no capacity to manipulate any evidence whatsoever. The act of denying bail under the provisions of the UAPA can be—and often are—used as a way to punish anyone who openly challenges the supremacy of the ruling government. Outside of the BK16, Umar Khalid is another victim of the government’s UAPA-backed crackdown on activists. Arrested due to his alleged involvement in the 2020 Delhi riots, one of India’s leading Muslim activists continues to be in jail (because of the UAPA) despite a Delhi court granting him bail since he was not physically present at the crime scene when the riots happened.
This is what makes the UAPA so dangerous. It can render the courts helpless. Yet, it is the law. The Ministry of External Affairs has already put out a statement claiming that Father Swamy’s arrest and bail rejections were “strictly in accordance with the law.” But the law is not always morally right. They can sometimes be unjust and nevertheless command acquiescence from the state and society. After all, Nazi atrocities on the Jewish community in Germany in the late 1930s were also per a set of laws, called the Nuremberg Laws. Today, the National Security Law imposed by the People’s Republic of China (PRC) on the citizens of Hong Kong has become another tool of tyranny. It is also quite similar to the UAPA in how it curtails freedoms and endangers the personal security of any citizen of Hong Kong who tries to challenge the supremacy of the PRC.
‘Rule by Law’
The UAPA has no place in the jurisprudence of a country like ours that has been founded on democratic principles. Increasing the scope of this law reduces the scope of three of the most important articles of our Constitution – 14 (Right to Equality), 19 (Right to Freedom of Speech, Expression and Opinion), and 21 (Right to Life and Personal Liberty). It serves as a tool for the establishment to silence dissenting voices, justified by the principle of ‘rule by law,’ instead of ‘rule of law.’ As the Chief Justice of India argued in this article, “any law backed by a sovereign must be tempered by certain ideals or tenets of justice.” The UAPA is far from justice; it is antithetical to justice.
The current regime has exemplified its absolute unwillingness to tolerate criticism of its policies and its leaders. The most disturbing trend, though, is the ability of elected governments to democratically enact laws that erode the authority of the Indian Constitution and the inability of the Indian judiciary to act upon these unconstitutional actions. Father Swamy’s deteriorating health in prison mirrors the deteriorating collective consciences of Indian lawmakers and upholders of the constitution. His death is not just the death of an activist in police custody; it is a consequence of institutional oppression and injustice brought on by a disregard for the rule of law. It signals that those who dare to call out the injustices of the state will be oppressed and the law will be used against them. Democracies need strong institutions like an independent judiciary to keep the regime in check and prevent the passing of unjust laws. The UAPA is an antidote to the power of the courts. The inability and the unwillingness of the Indian judiciary to challenge the severity of the conditions imposed by the UAPA is exemplified by what Justice JR Midha argued in his farewell speech: ‘Often both the parties know the truth, but it’s the judge who’s on trial.’
Disclaimer: The views, thoughts, and opinions expressed above are solely of the individual author. ALMA MAGAZINE seeks to bring varied discourse to its readers and has no political affiliation.
Saptarshi is a master’s candidate of international affairs at the London School of Economics, England. He is interested in twentieth century international history and Indian politics.