Guilt by association and insinuation

A recap of the Saibaba case shows just how urgently the UAPA needs to be read down
In the 1950s, the U.S. was gripped by an anti-communist hysteria that is now known as “McCarthyism”, after Senator Joseph McCarthy, its chief propagandist. McCarthyism was characterised by blacklists and harassment, investigations and inquiries, dismissals from employment, and sometimes arrests and imprisonment of persons suspected of having left-wing sympathies. Many of these activities took place under cover of broadly-worded and vaguely drafted laws, and were sanctioned by judges who were hardly immune from the corrosive public mood at the time.
Pathological approach
Senator McCarthy was ultimately brought down, and McCarthyism has since become a byword for persecution of dissent and state paranoia. However, noting the prevalence of McCarthyist cycles in the lives of contemporary democracies, the American legal scholar, Vincent Blasi, proposed taking a “pathological approach” towards the constitutional right of freedom of speech and expression. Prof. Blasi argued that courts must interpret the right to free speech so that it can “do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically.” This means that laws and statutes allowing wide discretion to state agencies and to judges should be interpreted narrowly, and judicial doctrines marking the line between criminal conduct and the permissible exercise of fundamental rights should be clear and specific. In this way, he believed, the rule of law would act as a protector of individual liberty and a constraint upon state power in those times when the temptation to view dissent as treason was at its highest.

The Saibaba judgment
To understand how this works in practice, consider the recent, high-profile case of Professor G.N. Saibaba. In March 2017, the Sessions Judge at Gadchiroli convicted Prof. Saibaba — along with five other persons — under various provisions of the UAPA, and sentenced him to life imprisonment. The accusations against him included criminal conspiracy to wage war against the government, membership of the banned Communist Party of India (Maoist) and its “front organisation” (the Revolutionary Democratic Front), an intention to facilitate and abet the commission of terrorist activities, and so on.
In order to prove Prof. Saibaba’s “membership” of the banned organisation and its “front”, the primary inculpatory material included, for example, interviews in which he had discussed the history of the communist movement, his attendance at a public meeting where government policy had been criticised and the release of political prisoners had been demanded, his offer (as part of a team of persons) to mediate between the government and the Maoists, and copies of various pamphlets and videos that already existed on the Internet. The Gadchiroli Sessions Court put great store by this material as demonstrating Prof. Saibaba’s membership of, and involvement in, the activities of the CPI (Maoist) and the RDF.
There have been some judicial attempts to push back against this climate. The Supreme Court has held, for example, that the word “membership” has to be restricted to active incitement of violence (and not possession of books or attendance at meetings). In a famous judgment granting bail to members of the Kabir Kala Manch, the Bombay High Court applied this standard, and specifically rejected the prosecution’s argument that it was the “ideology” itself that was contagious. However, such judgments are few and far between, and the dominant approach remains one that is antithetical to individual liberty, and deeply McCarthyist in character.
Back in 1952, while debating the extension of the Preventive Detention Act, Syama Prasad Mookerjee protested that while preventive detention may be justified in some extreme circumstances, “you cannot just treat it as sandesh and rasgulla that you make it a normal part of the law of the land and start relishing it.” There is now enough evidence to suggest that our state has begun to relish the crackdown on dissent under the cover of combating terrorism. It is time for citizens and courts to ensure a dialling down. Interpreting the provisions of the UAPA through the lens of Prof. Blasi’s pathological principle might be a good start.

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