By Surabhi Agarwal, Sandeep Pandey, Kushagra Kumar*
Writer, poet, artist, perennial protestor and Dalit leader Sudhir Dhawale, arrested and jailed in mid-2018, remains incarcerated under charges of the controversial Unlawful Activities Prevention Act (UAPA) and assorted Indian Penal Codes.
He has been accused of instigating violence at Bhima Koregaon event on January 1, 2018.
Ironically, the UAPA sections under which Sudhir has now been jailed are the same under which he was previously jailed – between 2011 and 2014 – before being acquitted of all charges in court. The presiding judge in that case pulled no punches in his acquittal order. Judge RG Asmar in his 108-page order lambasted the prosecution and cops for not just using discredited tools such as “guilt by association” but also failing to present any admissible evidence. This is what the judge said in his order then: “From the evidence on record there appears not single piece of evidence that the accused persons had organized any terrorist camp, or having recruited any person for terrorist acts.”
And just like that Sudhir was released after three years in jail while the “just-following-the-orders” police, career bureaucrats and conniving politicians, who aided and abetted this farcical civil rights debasement paid zero penalty for Sudhir and his family’s lost years.
The judge in Dhawale’s 2014 acquittal order took the effort to point out that just a few months earlier a similar razor sharp judgement regarding three other cultural activists – who had been under detention for 2 years at that point – had stated that:
“It is surprising that the state should consider these activities of the applicants as incriminating material against them. Speaking about corruption, social inequality, exploitation of the poor etc. and desiring that a better society should come in existence is not banned in our country… “[T]he same views are expressed by several national and eminent leaders and the expression for these views cannot brand a person as a member of the ‘Communist Party of India (Maoists)’… The legal position… seems to be that the element of criminality would enter into the activities of such persons only when they indulge into any violent activities or provide incitement to commit any particular violent or unlawful act. “Also, the possession of some literature which was not specifically banned by an order under section 95 of the Code of Criminal Procedure, or any other law, would not amount to any offence, and by itself would not indicate the person possessing such literature to be an active member of the ‘Communist Party of India (Maoists).’ Many of the books found with different applicants, it is claimed, are available in the market; and there is no denial of that by the State.”
It is disquieting to note that in a time when contempt of court is readily invoked even for an imagined hurt through a tweet, for actual state overreach which threatens individual liberties and where case law precedent exists (one cannot be charged of thoughtcrimes or of possessing literature or even membership of a radical or even a banned organisation), the state continues to wilfully disrespect previous court judgements and the court itself looks away.
In 2011, during a bail judgement in a similar case for Dr Binayak Sen, the SC judge inverted the logic used by the state lawyers, and asked – “Could a person be called a Gandhian merely for possessing a biography of Gandhi?”
Meanwhile, Sudhir has been accused and jailed for (as per the FIR) publicly using dangerous metaphoric speech. Allegedly calling for “an end to what he referred to as modern-day Peshwa rule.” And this time, for good measure they jailed his 2014 lawyer Surendra Gadling as well.
Once again, the police by incompetence (or more likely deliberate malevolence) failed to distinguish between dissent and criticism of the government, and wilful incitement leading to violence. Bail for him and others, in cases based on hearsay and poorly secured computer evidence, has been repeatedly denied by the courts.
Activists like Sudhir Dhawale are condemned to habeas-corpus-free bail-resistant multi-year detentions for having committed no crimeSince the time Sudhir was arrested, the National Investigation Agency has taken over the case. Two years of passing the buck and foot-dragging are all part of the state’s commitment to its well-oiled the-process-is-the-punishment modus operandi. In the interim years, many have demanded Sudhir’s release and written of his unwavering commitment to social justice.
Sudhir’s commitment to the struggle of Dalits goes back three decades – to before and after the Khairlanji killings and he has regularly been under the state’s cross hairs since then. Not one to ever shy away from calling a spade a spade – in a 2016 interview he stated eloquently and presciently what many would agree with:
“Definitely, it [the government] doesn’t have a pro-people character. As a student, then later as a literary person and as a political activist, we have had only one goal in mind, to build people’s struggle, participate in their struggle and create a truly democratic society. It is this aspiration that drives lakhs of people like me to enter the domain of democratic struggle. “You can call this a war if you wish. The military and police of this country have taken up arms against its own people and the people have become compelled and are trying to fight back. This is the reality today. You can call it whatever name you want but this is a war.”
As for his being under (re)imprisonment for the past two years, Dhawale is likely stoic. In 2014, responding to a question around the time lost when he had been falsely charged and imprisoned, he was matter-of-fact:
“…I don’t believe that I lost four years of my life. My suffering is not separate from these [hundreds and thousands of people who fought for our rights and went to jail]. I am also part of the hundreds and thousands who have been hounded by fabricated charges and sent to jail… And thus, there is nothing I can underline as exceptional about it.”
It is evident that it is the executive branch of our government that is in contempt of court – otherwise they would have followed judicial case precedent and not continued to file bogus UAPA cases using taxpayer money. With one branch of our democratic “checks and balances” neutralised, and our media severely compromised by state repression and corporate control, activists like Sudhir Dhawale are condemned to habeas-corpus-free bail-resistant multi-year detentions for having committed no crime.
Surabhi Agarwal and Sandeep Pandey, a Magsaysay award winning social activist, are associated with Socialist Party (India); Kushagra Kumar is a student in Lucknow—