The Indian Express | 1 week ago | 19-03-2023 | 12:45 pm
As the function to mark the first death anniversary of slain singer Sidhu Moosewala got underway at the grain market in Mansa around 11 am Sunday, his father Balkaur Singh urged the administration to open the barricades and allow free flow of people. He said the prayer meeting could turn into a dharna if the people were not allowed free movement.Balkaur Singh claimed that many people were unable to attend the programme due to the tight security arrangements. “You have blocked Joga, Bhikhi, what is your intention? I request you to open the blockades.”Balkaur Singh said that it was a religious function in the presence of Guru Granth Sahib. “We have no intention of starting an agitation or protest, people are coming here to pay their respects. I can assure you that this will be a peaceful congregation.”He said, “You can book me if anyone in the congregation breaks the law or indulges in violence.”But he warned that if people continue to be stopped this gathering could turn into a dharna.Moosewala was shot dead in a village near Mansa on May 29 last year. His parents are demanding the arrest of the masterminds, saying there was a bigger conspiracy behind their son’s killing that the Punjab government had failed to unearth.They had also staged a dharna outside the Punjab assembly in Chandigarh recently and warned that they would take his bullet-ridden Thar all around the state if justice was not delivered soon.
Israel has been seeing an intense and large-scale people’s resistance for the last three months over the issue of how independent the judiciary should remain in a democracy. Lakhs of Israelis have been protesting against the Netanyahu government every week in Tel Aviv, Jerusalem and in over a hundred other cities. Israel is a small country with just nine million (90 lakh) people – yet, it is experiencing one of the most well-sustained and peacefully-organised protests in the name of democracy in recent memory. The issue of judicial reform concerns not only the political class but also much broader sections of society. Independent women’s organisations, academicians and universities, lawyers, doctors, industrialists, and entrepreneurs, tech companies, intelligence and national security heads, soldiers and high-ranking officials of the Israeli army have all taken part in debating whether Israel’s democracy is threatened by legal excesses or political intrusions into the judicial system. This debate is relevant to India, too.Israel Prime Minister Benjamin Netanyahu formed the government with a clear majority in December last year and in the very first month of the new administration, Deputy Prime Minister and Minister of Justice, Yariv Levin, introduced a judicial reform bill in parliament. The bill proposed to balance the power between the executive and judiciary so that the democratically-elected government is not constrained by the courts. People’s will would be expressed through the elected legislature and courts would not intervene in law-making by striking down laws passed by the legislature. The most contentious element of the reform would overhaul the selection committee which appoints judges — the existing system has a nine-member committee made up of judges, ministers, and members of the bar association. Netanyahu’s legal team proposed a new committee, that would give more powers to the government in selecting the judges. The key thrust of the reform is that judges shall not appoint judges.Keeping in mind the inevitable political as well as legal resistance to the proposed bill, the government chose “shock and awe” — a military strategy with no room for moderation, debate or discussion — and moved it in the legislature with breakneck speed. Netanyahu had a very strong base and the government was confident that it could do a historical realignment of the wheels of state, restructuring the political system, as Israel marks its 75th anniversary this year.The major bill regarding the appointment of judges was to pass on March 27. Netanyahu had weathered the protests for over three months while his traditional allies in the Israeli security establishment and industries and even staunch supporters in the US asked for negotiation with the opposition. The tipping point was when he fired his defence minister, Yoav Gallant, who had called for an immediate halt to the judicial bill in a national address. Netanyahu was seen by many as risking national security and Gallant emerged as a national hero. What followed was an unprecedented and spontaneous protest in support of the former defence minister and a nationwide strike by the national labour union (Histadrut), which shut down Israel’s only international airport within hours.For a full day, Israel was on the edge and Netanyahu had to suspend the reform bill till this summer. There is supposed to be a dialogue and debate over the contentious bill until then. The opposition parties have agreed to talk, while the protesting groups will continue with the weekly public protests since the bill has not been nixed, merely suspended for some time. Israelis are about to celebrate Pesach (Passover) and Independence Day in April. The chags (celebrations) this time will see lavish Mediterranean food coupled with more protests, songs of resistance and civil society mobilisation. There is a much bigger worry for many in the country beyond the fate of judicial reforms — the political and socio-cultural divide among the Jews of Israel: Religious and secular Jews or conservative and reform-minded communities have grown too far apart — some days ago, President Isaac Herzog said that the “abyss” of civil war was “within touching distance”.The last three months of internal upheaval have brought Israel to a diplomatic standstill. Its relations with the US are under tremendous stress due to failing democratic values and irresponsible unilateral policies with regard to the Palestinians. Friendly Arab states like Jordan, Egypt and the UAE have been concerned about the escalation of violence in the Palestinian territories, combined with some excessive statements by ministers in the Netanyahu government against Palestinians. Israel is not going to be in a position to attend to any of these pressing foreign policy matters, if its house is not in order.The writer is associate professor & director, Jindal Centre for Israel Studies, Jindal School of International Affairs, O P Jindal Global University
India’s political system is veering towards a full-blown tyranny. The targeting of Opposition leaders leading to the farcical disqualification of Rahul Gandhi, the hounding of civil society and research organisations, censorship of information, the suppression of protest, are harbingers of a full-blown system of rule where all the interlocking parts add up to the one objective of tyrannical rule: To create pervasive fear.These actions are alarming, not because this or that leader has been targeted. They are alarming because the current BJP government is signaling not just that it will not tolerate the Opposition. It will not, under any circumstances, even contemplate or allow a smooth transition of power. For, what these actions reveal is a ruthless lust for power, combined with a determination to use any means to secure it. Neither the form of power the BJP seeks, nor the ends they deploy to achieve it, knows any constraints or bounds. That is the quintessential hallmark of tyranny.In a democracy, a smooth transition of power in a fair election requires several conditions. The ruthless crushing of the Opposition and the squelching of liberty erodes these conditions. The first is that professional politicians treat each other as members of the same profession, not as existential enemies to be vanquished by any means. Once a regime does that to its opponents, it fears the consequences of losing power. It can no longer rest in the comfortable belief that democracy is a game of rotating power; transitions should be routine. Can you now imagine Prime Minister Narendra Modi or Amit Shah or their minions calmly contemplating the prospect that they could ever be in the Opposition, after the hubris they have deployed against opponents and critics? The hallmark of tyrants is impunity in power and therefore an existential fear of losing it.The issue is not whether the government is popular. It may well be. Tyranny can be a stepchild of democracy, as Plato knew so well. The insatiable show and assertion of power the BJP is engaged in traps them in a logic where they will seek to create the conditions in which a fair and open contest is no longer possible. Their institutional imagination is paranoid — desperately trying to shut out even the slightest opening from which light might appear. What else but a paranoid system would target small think tanks or civil society organisations that do social service? What else but a paranoid system would appear to politically orchestrate a disqualification of an Opposition MP?And this same paranoia will make the prospect of even risking a fair electoral contest from now on a non-starter. Paranoia is the seed of all repression and we are now seeing it in full measure.Political parties that situate themselves as unique vanguards of a majoritarian national identity find it difficult to relinquish power. In normal politics there are many sides to an argument, and we can all pretend that different sides are acting in good faith even when we disagree. But when the ideological project is singularly communal and wears the garb of nationalism, every dissent is treated as treason. Ideological parties like the BJP will play by the electoral rules when they are not in a position to wield power, or when they feel electorally secure. But once this regime is entrenched, it will think it is its historical destiny to act as a kind of nationalist vanguard, no matter what the circumstances.In its own imagination, this nationalism will justify everything: From playing footloose with the law to outright violence. It has institutionalised vigilantism, violence and hate into the fabric of politics and the state. But this culture is not just difficult to dismantle. It is also part of a preparation to exercise other options in case a purely political hold on power is no longer possible. Parties that have institutionalised structures of violence are less likely to give up power unless they are massively repudiated.But the logic of tyranny goes further. Increasingly, the issue is not just the weaknesses of the Opposition parties. Even in the wake of this disqualification, Congress’s political reflexes, the willingness of its members to risk anything, and its ability to mobilise street power, is seriously in doubt. Opposition unity is still a chimera, more performative at the moment than real.But has the psychology of tyranny now been internalised by enough Indians to make resistance more difficult? India still has the potential for protest on many issues. But what is increasingly in doubt is whether India wishes to resist deepening authoritarianism.To take one example, India’s elites, broadly understood, have gone well past the quotidian fear of those in power. This kind of fear often expresses itself in a gap between public utterances and private beliefs. But what is happening is something far more insidious, where a combination of fear or outright support for government is so deeply internalised that even private demurring from blatantly authoritarian and communal actions has become rare. Ask any victim, who has been the object of the state’s wrath, whether they are at the receiving end of horrendous violence, or targets of administrative or legal harassment. Even the private shows of support will disappear as swiftly as the state intervenes. This suggests either a deep-seated cowardice or a normalisation of authoritarianism.The hallmark of a successful tyranny is to induce a sense of unreality in those who support it. This sense of unreality means no disconfirming evidence can dent their support for the regime. In this world, India has little unemployment, its institutions are fine, it has ascended to the glorious heights of world leadership, it has not ceded any territory to China, and there is no concentration of capital or regulatory capture. But the unreality centres mostly on the lynchpin of this system of tyranny, the prime minister. In his hands, repression becomes an act of purification, his hubris a mark of his ambition, his decimation of institutions a national service.Institutionally and psychologically, we are already inhabiting a tyranny, even if its violence is not in your face. A regime that is paranoid and full of impunity will overreach. But what is the threshold of overreach? The threshold seems to be shifting higher and higher. Communalism was unleashed. No reaction. The information order collapsed. No reaction. The judicial heart stopped beating. No reaction. The Opposition is being vanquished by unfair means. No reaction. Such is the logic of tyranny that the ogres of oppression roam free, while we look on indifferently as justice and freedom are tied in chains.
The district court in Odisha’s Nayagarh Monday (March 27) acquitted former Maoist leader Sabyasachi Panda in connection with an attack on the district reserve police in 2008.Panda, 55, who was arrested by Odisha Police in July 2014 from Berhampur town in Ganjam district, has been in judicial custody since then. Around 800 gm of gold ornaments, a revolver, multiple mobile phones with sim cards, a laptop and Maoist literature were seized from his possession on the day of his arrest.Panda was once marked as one of the most-wanted Maoist leaders in Odisha and allegedly involved in some of the high-profile crimes, including the killing of Hindu seer Laxamananda Saraswati and four of his disciples in Kandhamal district in 2008 that triggered communal violence in the region.In 2012, he was involved in the abduction of two Italian tourists in the Kandhamal district. While one of them, Claudio Colangelo, was set free, the other, Paolo Bosusco, was released after 29 days in captivity.Police sources said 134 cases were pending against Panda in different police stations in Ganjam, Gajapati, Kandhamal, Rayagada and Nayagarh districts. Panda has been acquitted in 57 cases.According to a lawyer, panda and two of his aides have been acquitted in the case from 2008 because of lack of evidence.Over 100 Maoists, including women cadres with firearms, attacked the police training school, the district armoury and a police station in Daspalla in Nayagarh district on February 15, 2008. As many as 14 people — 13 security personnel and a civilian — were killed in the incident and ten others sustained injuries.The Maoists also took away a huge cache of arms and ammunition in two vehicles. Panda was alleged to be the mastermind of the attack as the case was assigned to the crime branch for investigation.In May 2019, the additional sessions judge in Berhampur in Ganjam convicted and sentenced Panda, who was the founder-leader of Odisha Maobadi Party, to life imprisonment under Section 121 of Indian Penal Code (IPC) for waging war against the government or abetting the waging of such war. He has been lodged in the Berhampur jail.
“A major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes license.”— Heraclitus of EphesusThe decision by a three-judge bench of the Supreme Court last Friday (Arup Bhuyan vs The State Of Assam Home Department) holding that mere membership of a banned association is sufficient to constitute an offence under the Unlawful Activities (Prevention) Act, 1967, is a severe blow to principles of fundamental justice. The verdict has done away with the distinction between active and passive membership of proscribed organisations, which has been the basis of court rulings since 2011.The judgment is fraught with the risk of making it legal for agencies to act lawlessly while claiming to fight terrorism and preserve the State’s security. Unless there is a specific intent to enhance the material abilities of a terrorist or unlawful organisation, permitting the conviction of a person as a member is abhorrent to the rule of law. The verdict also suffers from substantive contradictions in its reasoning.The Court has struck down three of its previous rulings from 2011: Arup Bhuyan vs State of Assam, Sri Indra Das vs State of Assam and State of Kerala vs Raneef. While the Raneef judgment had put a narrow construction on Section 10(a)(i) of UAPA, Arup Bhuyan and Indra Das had read down Section 3(5) of the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987.Section 10(a)(i) punishes membership of unlawful organisations with imprisonment for a term which may extend to two years. Section 3(5) of TADA penalised membership of terrorist organisations. Section(3), TADA, is in pari materia with Section 20, UAPA, which provides for punishment for being a member of a terrorist gang or organisation. The Court accepted the argument by the Union government and State of Assam that Section 10(a)(i) does not require any further overt act or mens rea on the part of a member of a banned outfit. However, both the Centre and State of Assam argued, “that in case of a terrorist organisation, mere membership is not sufficient but there has to be an act with intention to further the activities of the terrorist organisation which is not the case under Section 10 with an unlawful association.” (page 31, 32 of the judgment). The Court has set aside the reading down of both Section 10(a)(i), UAPA, and Section(3), TADA. By doing so, it has obliterated the requirement of mens rea from both membership of an unlawful organisation and membership of a terrorist organisation. In its effect, the ruling has gone beyond the pleadings made by the State.Terrorist or criminal organisations are not known to keep a registry with their members’ names, addresses, phone numbers, and email IDs. Even in the case of a lawful entity with records of membership, how will any agency or court conclude “who is and continues to be a member of such an association” even after the entity was banned? In most cases, membership must be inferred. Astonishingly, the 145-page long verdict, authored by two judges, is silent on this crucial point.Jyoti Babasaheb Chorge vs State of Maharashtra (2012) best demonstrates how innocent young men and women can get ensnared as members of unlawful/terrorist organisations merely by association. In that case, as many as 15 people, all young tribal women and men, were charged as members of the Communist Party of India (Maoist), a “terrorist organisation”, for possessing Maoist propaganda literature like books, articles and pamphlets. There was no accusation against them of being involved in any terrorist act or act of violence, organising a terrorist camp, recruiting or sheltering people or raising finance for terrorist acts. The Bombay High Court ruled Section 20, UAPA, making membership of a terrorist organisation punishable with imprisonment for a term which may extend to imprisonment for life, was “widely worded”. The Court relied on Arup Bhuyan and Raneef rulings (2011) that such membership cannot be passive.Arup Bhuyan was convicted under section 3(5) of TADA for being a member of a terrorist organisation. The Supreme Court ruled 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.” The Court relied on the landmark US Supreme Court decision of Brandenburg vs Ohio, distinguishing between advocacy and incitement. “Mere advocacy is not per se illegal. It will become illegal only if it incites imminent lawless action,” the US Supreme Court ruled. In the Raneef case, the Court referred to the US Supreme Court verdicts in Scales vs United States, distinguishing “active knowing membership” and “passive, merely nominal membership”, and Elfbrandt vs Russell, in which the US SC had ruled “guilt by association” had no place in penal law.The definitions of terrorist and unlawful organisations in UAPA are circular and vague. The Act merely states that they are organisations involved in “terrorist”/”unlawful activities” and notified as such. The central government has so far notified 42 organisations as terrorist and 13 as unlawful organisations.In Maoist-affected areas, the agencies have a track record of booking tribal youth, often semi-literate, on charges of possessing Maoist literature or being sympathisers of Maoist ideology. Often, there is no evidence of these youth indulging in any violent or unlawful activity or of being a party to any conspiracy for committing any crime. They are booked as offenders simply because they come in contact with the members of banned organisations.States worldwide are grappling with defining terrorism/terrorist acts/terrorist groups with some precision to protect against the improper stigmatisation of those inappropriately labelled as “terrorists,” and to curtail the abuse of counterterrorism powers. Mislabelling dilutes efforts to combat actual terrorism. It undermines democratic values and institutions and the gravitas of the security threat terror groups pose.It is instructive to cite a judgment authored by the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, while reviewing the constitutionality of the 2001 Anti-terrorism Act (ATA) of Canada (R. vs Khawaja, 2012). Like UAPA, the provisions laid out in ATA are quite extensive, covering everything from the definition of terrorism to proscribing terrorist groups, the financing of terrorism, the freezing, seizing and restraint, and the forfeiture of property.McLachlin ruled the law “required a high mens rea threshold that involves specific intent — the person knowingly participating in and contributing to a terrorist activity” and “that their actions must be undertaken for the purposes of enhancing the ability of a terrorist group to facilitate or to carry out terrorist activity.” She further ruled: “A purposive and contextual reading of the provision confines ‘participation in’ and ‘contribution to’ a terrorist activity to conduct that creates a risk of harm that rises beyond a de minimis threshold. While nearly every interaction with a terrorist group carries some risk of indirectly enhancing the abilities of the group, the scope of s. 83.18 excludes conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity.” (Section 81.18 defined participating or contributing to a terrorist group).Instead of being outliers, the three previous rulings (Arup Bhuyan, Indra Das and Raneef) are in accordance with strict judicial interpretations in every liberal democracy of what constitutes terrorist/unlawful activity or being a member of a terrorist/unlawful group. The effect of this heightened mens rea is to exempt those who may unwittingly come in contact with terrorists or groups — for example, in social or professional interactions. With Friday’s ruling, the Supreme Court has done away with the mens rea requirement.In countries like the US, UK and Canada, the pushback to the aggressive assertion of executive power to unlawfully detain, interrogate, and falsely label and prosecute people as terrorists have often come from the legislature and judiciary. Sadly, neither Parliament nor the courts have done enough to protect individual liberties from a rampant executive in India.The writer is associate professor, Jindal Global Law School
After the United States and United Kingdom invited New Delhi’s ire over pro-Khalistani groups attacking its missions in both countries, India has now lodged a protest with Canada flagging actions of “separatist and extremist elements” against Indian diplomatic missions and consulates.On Saturday, the High Commissioner of Canada was summoned by the Ministry of External Affairs, which conveyed India’s “strong concern” over the attacks over the last week, according to an MEA official statement issued Sunday.“The Government of India sought an explanation on how such elements were allowed, in the presence of police, to breach the security of our diplomatic Mission and Consulates,” the statement said.“It is expected that the Canadian Government will take all steps which are required to ensure the safety of our diplomats and security of our diplomatic premises so that they are able to fulfil their normal diplomatic functions,” it added.India also reminded the Canadian government of its obligations under the Vienna Convention and asked it to arrest and prosecute the individuals “who have already been identified as being involved in such acts”, the MEA said.Canada is home to a large Indian diaspora, particularly from Punjab. Last September, the MEA issued an advisory for Indian nationals and students who are in Canada citing a “sharp increase in incidents of hate crime, sectarian violence, and anti-India activities” in the country.Recently, there have been multiple incidents of vandalism in Indian missions in the US and the UK. Two weeks ago, protesters, chanting pro-Khalistan slogans, had taken down the Indian flag at the Indian High Commission in London.Last Sunday, the Indian Consulate in San Francisco was attacked by protesters raising pro-Khalistan slogans. They broke the makeshift security barriers and installed two “Khalistani flags” inside the Consulate premises.