“2020 marks 70 years since India became a republic, but the present state of affairs is no occasion to celebrate.”Justice (retd) AP Shah, Commissioner of the International Commission of Jurists
Retired judges and United Nations experts raised concerns on Monday, 13 July, about the way in which the government has responded to the anti-Citizenship (Amendment) Act protests in recent months, including the implication of many of the protesters in criminal cases.
Retired Supreme Court judge Justice Madan B Lokur, Justice (retired) AP Shah of the Delhi High Court, UN Special Rapporteur on Human Rights Defenders Mary Lawlor, and Aida Martirous Nejad (India desk of the UN Office of the High Commissioner for Human Rights), were all speaking during a side event to the current session of the UN Human Rights Council.
The event, moderated by journalist Saba Naqvi and co-organised by the International Commission of Jurists along with Amnesty International, Human Rights Watch and other organisations, focused on the way in which opposition to the CAA and NRC has been attacked by the Centre and state governments, and how the justice system is failing to protect the civil rights of dissenters.
THE TARGETING OF ANTI-CAA PROTESTERS
He set out how citizenship under the Indian Constitution specifically avoided religion as a criterion and that “Tagging religion to citizenship would conflict with these principles of secularism, liberalism, equality and justice.”
He considered the protests against the troika of CAA, NRC and NPR as a positive, given the unprecedented involvement of the youth and the way in which commitment to constitutional values was a key part of how they played out. In response, however, he argued that:
“The government is trying to silence protesters, liberally slapping criminal charges of rioting, unlawful assembly, sedition, criminal conspiracy. Police have license to run riot against – by and large – peaceful protesters, by arresting them,destroying vehicles, and even entering homes.”
Retired IPS officer SR Darapuri, now a social activist, gave testimony of his own experiences at the hands of the Uttar Pradesh Police because of his opposition to the CAA. He recalled how in December 2019, he had not even been able to leave his home as the police had prevented him from attending the anti-CAA protests in Lucknow – and yet he was still named as an accused in the violence that the police claim flared up as a result.
He explained how he was arrested by the police, and remanded to custody even though he wasn’t properly brought before a magistrate – when the magistrate started to agree that there no grounds for remand, the police whisked him away and claimed on paper that the judge was ill and therefore unavailable. On the first night in custody, he “was not provided food or a blanket, even in the freezing cold of winter.”
After being released on bail over two weeks later, the 76-year-old former Inspector General of police then found out that the UP government was trying to make him pay for the damage allegedly done to public property during the protests.
Darapuri is one of several dissenters, including Sadaf Jafar and Deepak Kabir, whose names, photos and addresses were plastered across public hoardings demanding payment, that Darapuri argues were a threat to their life and liberty.
The Allahabad High Court ordered the “undemocratic” hoardings to be taken down, but after the Supreme Court decided to refer the legal issue of whether such banners could be put up, the UP government disobeyed the high court order, even though the apex court had not passed a stay on it.
No progress has taken place in the Supreme Court on the issue, and while the Allahabad High Court has separately stayed the UP government’s attempts to extract ‘compensation’ from Darapuri and asked them where they are deriving the authority to do this at all, he says the police and administration continue to harass him, coming to his house and trying to seal it, and misbehaving with his family, including his bedridden wife.
“I have criticised previous governments before as well,” Darapuri said in conclusion, “but now, more than ever, the space for democracy in this country is shrinking.”
THE PROBLEM WITH THE COURTS
Darapuri’s account of how basic procedural rights of an accused to be produced before a magistrate, were a key segue into the comments by Justice Madan Lokur, who retired from the apex court in late 2018.
Justice Lokur pointed out that from the time the protests had started and concerns had begun to be raised about the way in which the police and the government were responding to dissent, the Supreme Court had failed to act, whether in terms of hearing the over 150 petitions filed against the CAA, or protecting the rights of protesters.
“If the Supreme Court doesn’t act, or doesn’t act in time, what is going to be the effect down the line with the lower courts,” he warned. He considered Darapuri’s case, where the remand was “patently illegal” as well as the recent Jeyaraj-Bennicks custodial death case in Tamil Nadu, to be examples of how the lower courts will fail to perform their duties if they don’t see the senior courts rigorously safeguarding fundamental rights.
In addition to how basic procedural guarantees were being given a pass, Justice Lokur was concerned how judges were automatically refusing to grant bail in cases just because the police claimed the draconian UAPA was invoked against the accused.
In such cases, he argued, the judge still has to “apply their mind” and must see if the accusations are borne out by the material provided by the police.
He also questioned the process of filing multiple FIRs against accused, so that if the accused gets bail in one, they still can’t be released. This was, he said, part of a larger problem with how the process of law was being abused by the authorities in the name of ensuring law and order, in the face of protests.
“It’s the principle of law that we are concerned with. Can you impose Section 144 just because you have the power? Can you impose internet restrictions, just because you have the power? Can you file these multiple FIRs, just because you can?”Justice (retd) Madan Lokur
Finally, he observed that if the anti-CAA protesters have committed some infractions as part of their protest, they can be prosecuted using the appropriate laws, charging them with milder offences. “You don’t have to use serious offences like sedition, UAPA, he argued, adding “This is a sledgehammer approach, where you are trying to scare the opposition, and it is this approach which is frightening.”
UN EXPERTS ON THE WAY FORWARD
Both Special Rapporteur Mary Lawlor and UNHCHR representative Aida Martirous-Nejad discussed ways in which these issues could be resolved going ahead.
Lawlor, who was given the mandate to examine the situation of Human Rights Defenders (HRDs) two and a half months ago, noted that the targeting of HRDs in India didn’t start with COVID and the anti-CAA protests. For years, HRDs have faced severe threats of violence, judicial reprisals, with women HRDs even receiving threats of sexual assault, acid attacks and the like.
As a result, when it comes to the current backlash against the anti-CAA movement, she said “It’s no great shock that the Indian government has not protected the rights of HRDs in accordance with India’s obligations under international law, given this long history.”
Nevertheless, she was concerned with how peaceful protesters had been targeted ever since the CAA came into effect, with many of them “false charged and wrongfully detained.” The arrests, she suggested, are meant to have a “chilling effect on those who want to stand up for civil rights” – Safoora Zargar’s case was a good example of this, she suggested.
“India is on the Human Rights Council, but is clearly violating its obligations under international law,” she went on to say. To try and remedy the situation, she said there needed to be a dialogue with the Indian government about respecting the rights of HRDs, to avoid cracking down on dissent and reining in the police.
While she will be trying to do this through her own discussions with the government, she also said it was important for corporations with interests in India to play a part in arguing against the targeting of HRDs and protesters.
From the UNOHCHR side, Martirous-Nejad discussed how they had from a very early stage raised concerns with the Modi government about how the CAA was “fundamentally discriminatory.”
However, they saw that the government was not willing to change its position politically, and so the only way in which any changes to the law would happen would be through the courts. As a result, the UN High Commissioner for Human Rights Michelle Bachelet filed an intervention in the cases before the Supreme Court.
While the UNHCHR has filed amicus briefs before, this was the first time that it had filed an intervention in the Indian courts. The intervention application sets out the international law standards relating to non-discrimination and equal protection of laws (including those binding on India) that the UNHCHR believes the Supreme Court should consider when deciding whether the CAA is constitutional or not.
In Martirous-Nejad’s opinion, “this was a good opportunity to set the record straight on international legal obligations,” which are a vital way for approaching how to go about the CAA – the intervention doesn’t take a side per se, but only notes the principles that should govern the assessment of a law like this.
International law also will hopefully point the way for how to treat HRDs and the anti-CAA activists, she hoped, an idea that Justice AP Shah seconded.