I was jailed on suspicion of being a Maoist
Kerala verdict could save others from my fate
Photo Credit: Arun Ferreira via Facebook
My co-accused was confused. In theory, during a trial, the accused person is given an opportunity to offer an explanation for any evidence presented against him. In this particular case, a policeman had testified that my co-accused and I were members of the banned Communist Party of India (Maoist). Though the charges against us were about an act of violence, the testimony of the witness related to membership of a banned organisation and we were being questioned about our adherence to an ideology. We shouldn’t have been surprised. These misinterpretations of the law are a regular feature of arrests, detentions and prosecutions of people like us who are determined to be “left-wing extremists”.
Against this background, we must heartily welcome Friday’s ruling by Justice A Muhamed Mustaque of the Kerala High Court stating that merely being a Maoist is not a crime. Upholding Voltaire in his oft-quoted words “I do not agree with what you have to say, but I’ll defend to death, your right to say it”, Justice Mustaque clarified that though the political ideology of Maoists is incongruous with the philosophy of India’s Constitution, he nevertheless believes that it is a basic human right to for people to have aspirations.
“Police cannot detain a person merely because he is a Maoist, unless police forms a reasonable opinion that his activities are unlawful,” he declared, reiterating the legal principles laid down by the higher judiciary over the years. While granting bail to the pediatrician and human rights activist, Binayak Sen in April 2011, the Supreme Court had observed that though Sen may be a Maoist sympathiser, that did not automatically make him guilty of sedition. Drawing an analogy, the court questioned whether it would be proper to draw an inference that a person is a Gandhian merely because Mahatma Gandhi’s autobiography was found in his possession.
Likewise in October 2012, Justice Abhay Thipsay of the Bombay High Court, while granting bail to a person in a similar case, had commented that the possession of literature having a particular social or political philosophy would not amount to an offence. The Bombay High Court further stated that such a proposition runs counter to the freedoms and rights guaranteed by Article 19 of the Constitution.
However, though the higher judiciary has clearly held that the constitutionally guaranteed fundamental freedoms and rights override any attempt to persecute a person on basis of his ideology, certain draconian laws allow the police to repeatedly detain persons on this very basis. The British-era sedition law (Section 124A of the Indian Penal Code) or the more recent Unlawful Activities (Prevention) Act provides this umbrella for contempt of the judiciary’s opinion. The Unlawful Activities Prevention Act, 1967, amended in 2004, 2008 and again in 2012, allows for the determination of guilt on the basis of ideology and association ‒ provisions that are inconsistent with existing constitutional freedoms of expression, ideology or association.
This act, like its predecessor the Prevention of Terrorism Act, contains a list of organisations deemed to be banned. The CPI (Maoist) and “all its formations and front organisations” is listed as no. 34. A rebel is often charged with being a member of a banned organisation by the police on the basis of the books he reads or possesses. In some cases, as in the case of Delhi University professor GN Saibaba or members of the Kabir Kala Manch cultural group, they continue to be incarcerated under the charges that the organisations that they represent espouse causes similar to those of the Maoist and hence considered to be “front organizations”. This is the criminalisation of an ideology, the Kerala High Court warned of.
The other aspect allowed under the Unlawful Activities Prevention Act for determination of guilt is by association. Existing criminal law allows for abettors and conspirators of an offence to be also made culpable for its commission. However the Unlawful Activities Prevention Act stretches this interpretation of who is an abettor or co-conspirator by mere membership or association with an organisation. On this count too, the Supreme Court had rejected the doctrine of “guilt by association” in the Arup Bhuyan and Indra Dasjudgments and held that mere passive membership of a banned organisation does not make a person guilty.
In those cases, the accused were charged of being members of the United Liberation Front of Asom. As in the Kerala High Court judgment vis-à-vis ideology, here too the Supreme Court held that “mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence.”
What makes the Kerala verdict different is that judge ordered that compensation of Rs 1 lakh be paid for wrongful detention, since there was no reasonable basis for suspecting that a cognisable offence had been committed. Though it is a well established practice for the state to pay compensation for constitutional violations by its functionaries, this is perhaps the first time such compensation has been awarded for wrongful detention in a political case. The strong adverse reactions from the Kerala Home ministry and the police were only be expected since the judgment challenges the assumption of the security forces that the Unlawful Activities Prevention Act and other anti-terror laws provides them full sanction to indiscriminately criminalise ideology or association.
The pioneering 2011 Supreme Court judgment in Indra Das has already been challenged by the Union of India through a review petition. It can only be expected that the state of Kerala will similarly try to overturn the present order. The road to acceptance of constitutional values of individual liberty, freedom of belief and expression by the executive organs and police forces is indeed a long weary one.
It took me four months and eight months to finally be released from prison. I was acquitted of all charges. This determination of guilt by ideology and association ensures that hundreds of others like me have spent years in prison, denied bail and other reliefs.
Arun Ferreira is the author of Colours of the Cage, a memoir of his years in Nagpur jail.