Our democracy, like another it attempts to emulate, takes one step forward, two steps back. A victim of paranoia like the one it emulates, it is destroying its own founding principles by emphasizing “order” while sacrificing the law. Without the guiding hand of a civil society conscious of its rights, it may well fall on its face as it did during the dark days of the Emergency.

In April 2013 when Sheetal Sathe and Sachin Mali of the Kabir Kala Manch (KKM) did a satyagraha for freedom of expression and gave themselves up outside the State Assembly to an Anti Terrorist Squad (ATS) that had supposedly been hunting for them for 2 years, it seemed to have established a healthy precedent. Within a month, encouraged by the fact that under intense public scrutiny no torture of the arrested took place, Ramesh Gaichor and Sagar Gorkhe of the KKM surfaced from hiding and gave themselves up to the authorities expecting that the due process of law would restore their freedom of expression.

The KKM is a Pune based cultural troupe largely composed of working class Dalit poets and artistes. Two years ago they went underground after one of their members Deepak Dengle was arrested and tortured into giving a “confession” by the ATS. The ATS implicated him and many others under the Unlawful Activities Prevention Act (UAPA) as persons associated with a banned Naxalite party. It may be recalled that the ATS notoriously got similar “confessions” from Muslims who admitted to bombing their own mosque at Malegaon. When terrorists belonging to the Hindu faith later owned up to the bombing, the ATS was left with not just egg on its face, but the blood of innocents. Torture, at the very least, is an unreliable method of investigation.

After a KKM Defence Committee was formed by members of a civil society that had begun to learn about and appreciate the cultural and political contributions of the KKM, things began to change and the media started to take positive notice. Finally in March 2013, Justice Abhay Thipsay of the Bombay High Court gave a landmark judgment granting bail to 6 accused under the UAPA, which included KKM member Deepak Dengle. The judgment pointed out that while no case had been made out that the accused were Naxalites, even assuming they were, merely belonging to a banned organization did not constitute a crime unless an actual crime had been committed or contemplated. The Thipsay judgment followed logically from a Supreme Court judgment upholding the principle that even under the UAPA, which criminalizes membership of a banned outfit, a distinction had to be made between active and inactive members. These judgments were a shot in the arm for those who argued that even in difficult times, one must not criminalize expression and thought.

Back in April we learned that Sheetal of the KKM was 6 months pregnant. Thankfully rather than be subjected to third degree in police custody, she was remanded to judicial custody right away. The government prosecutor in open court said that they were not asking for her police custody, as they did not want to risk harming her baby! Does one need more proof of what is considered routine in police custody?

Since then 2 months have elapsed. In the sessions court Sheetal’s bail hearing kept getting delayed. When it finally took place bail was rejected. Bail is generally denied to those who might run away. Sheetal and the KKM came out of hiding voluntarily and are hardly a security risk. Yet her baby may now be born in jail.

It is nobody’s case that the KKM participated in violence but there are two possibilities. One is that they were mistaken as Naxalites because of the militancy of their songs. The other is that at some point they were attracted by the Naxalite ideology but changed their minds and decided to come overground to face the consequences. It is the latter possibility that prevents their release. The government does have a surrender policy in place where Naxalites, even those with a violent past, are given financial rewards in return for turning State’s witness and helping in the war against Naxalism. Such people are relocated at government expense and given “protection” but are regarded as mercenaries and often lose self-respect. The KKM chose a third, more honorable path, one that the government has never conceived of. They stoutly deny any wrongdoing and they refuse to turn into “approvers” of the system. They merely express the desire to live an open life within the bounds of democracy. Will they be granted this space?

Meanwhile in court and in the media the atmosphere has dramatically changed. The massacre in Chhattisgarh carried out by Naxalites has seen to that. Horrific as the event was, the undifferentiated use of State violence in the tribal belt and the use of draconian measures in court together with the blanket tarring of all dissidents can only aggravate the situation. Naxalites are undeniably fighting for, and with, the most oppressed sections of this land. It is their hearts and minds that must be won. Increased State repression will do just the opposite. Attempting to restore Order while abandoning the rule of Law will do exactly what the USA led bombing of Iraq and Afghanistan did to “restore democracy” in those countries.

Anand Patwardhan, May 30, 2013
(an edited version of this appeared in Outlook magazine)