india - against repression of MODI's Regime - I was jailed on suspicion of being a Maoist -Arun Ferreira

I was jailed on suspicion of being a Maoist. Kerala verdict could save others from my fate

Arun Ferreira

“Are you a Maoist?” a trial court Judge asked one of my co-accused.
Both of us had been charged with theft and violence Maharashtra’s
Gondia district.

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.

Established principle

“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 Das judgments 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.”

Compensation ordered

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.