Breaking the Law to Demand Justice
Ajay Skaria
In a Facebook post soon after four young persons set off smoke canisters in the Indian parliament, the political theorist Aditya Nigam wrote, “How state-like our thinking has become that most people – and parties – are only asking why and how parliament security (their VIP security) was breached. Very few are actually asking what these poor subaltern kids, members of Fans of Bhagat Singh (an FB page) were doing, daring to repeat Bhagat Singh’s act, knowing that they will face serious consequences.”
Nigam astutely puts his finger on one of the most troubling aspects of our current political and cultural moment in India – the profoundly anti-democratic phenomenon of statism, a phenomenon broader than Hindutva, but of which Hindutva is a particularly toxic manifestation.
A defining feature of the modern state – arguably the feature that defines its modernity above all else – is its claim to an exclusive right to legitimate violence; understanding violence here in its most limited sense as the infliction of physical hurt. Before the consolidation of the modern state, it was not only legitimate but also legal for many entities to physically hurt others in society – from the violence of caste panchayats to the violence that women and children faced from their patriarchs.
If things change with the consolidation of the modern nation-state, that is because it claims an increasingly exclusive sovereignty over “its” people and territory. By extension, it claims exclusive provenance over the law, and over the force needed to impose the law. Moreover, what makes this force legitimate, not “mere violence,” is that it is not merely the law, but also a claim to justice. This does not by any means render all other violence unjust or illegitimate, but that violence is now at least in principle illegal; only the just violence of the sovereign state is now legal. At its most basic, this order was what the Indian constitution sought to put in place – for example, by banning discrimination against citizens in public places based on caste, religion, sex, or place of birth.
Sovereign justice and law – we know already, in our commonsense, that these are not the same. But the difference between them is worth teasing out.
We could begin by observing that a democratic state-form is characterised by the empty place of power, as the political theorist Claude Lefort has noted. What this means, to begin with, is that even though a democratic state-form will obviously have a leader and a party in power, they recognise themselves to be only the government, and not the state (I resort to the awkward locution “state-form” to refer to the concrete combination of the two: state and government).
But what distinguishes a government from a state? Perhaps this: while the government is concerned with the law, the state is concerned with sovereign justice. (We recognise this in our everyday language: somebody is described as a statesman when they are concerned not merely with law or immediate advantage, but with justice from the point of view of sovereignty.) As such, the state provides the legitimating principle for the working of the government. Every government, of course, tries also to modify the legitimating principles in small and large ways, maybe even put new principles in place. But even if new principles were to be put in place, it would possess a democratic state-form only to the extent that it tries to maintain this distinction between government and state.
Matters get even more complicated when we dwell on the question of justice. The state is concerned with justice, yes, but this is so in two ways. First, in principle, a democratic state tries to create a just order through laws that recognise the dignity, equality, liberty and fraternity of all its citizens. Second, even so, such a state does not embody democratic justice; a state is democratic only to the extent that it recognises that justice lies beyond it somewhere, that justice is yet to come, so to speak, and that it will come by democratically reflecting on what dignity, equality, liberty and fraternity involve practically. This yet-to-come aspect of democratic justice is what we designate by many aspirational names: the people, fraternity, communism, socialism, or even liberalism. This yet-to-come aspect means that the democratic state realises that it cannot simply enforce justice; it must be open to recognising the potential inadequacy of the concept of justice involved in its laws.
One of the most striking things about the Indian constitution is the dramatic way that both its Preamble and its Directive Principles work with the force not of law, but of a justice whose form remains yet to come. This justice that is yet to come – perhaps we should call it a democratic tremor rather than a democratic horizon, for unlike a horizon, to which we may have a path, a tremor is something inchoate. And yet, in its inchoateness, in the lack of a path to it, it is faithful to what is most essentially democratic.
When those four young protestors released harmless coloured gas in the parliament, they were breaking the law in order to demand justice – both the spirit of justice that the state is supposed to embody, and the aspiration for a more radical justice, a justice yet to come, that the Preamble and the Directive Principles embody. Indeed, to the extent that we know at present, their protest took a form that could be described as driven by the spirit of nonviolence (they did not hurt anybody; they protested publicly with full awareness that this would lead to their arrest by a government that they surely knew was draconian – why else were they protesting, after all!; the impact of their protest was not so much causal as symbolic). And yet, they were met with the full force of the state, having nothing less than the UAPA invoked against them.
What is also striking, at least so far, is that, quite apart from the government reaction, “most people—and parties—are only asking why and how parliament security (their VIP security) was breached,” as Nigam notes. And in this response we encounter the dark heart of statism: not only is the difference between government and state disappearing, but so is the difference between the justice the state has already realised in its laws and the justice that is yet to come, and that is the essence of the democratic tremor. Where such statism comes to be prevalent, then dissent is by its very nature criminal, for what needs to be achieved by the state and government is already known, and all that remains at best to be resolved are technical matters of strategy.
Indeed, India is arguably in a political and cultural moment where the stain of statism has metastasized beyond the state; it seems to have lodged itself in our souls. Perhaps the most striking manifestation of this spread is the lynchings especially that have become common. Lynching is a statist act in that here, unlike communal riots (elaborating on what the political theorist Hilal Ahmed has observed), each of the members of the mob individually takes on the work of both police and judge, of both law and justice. Lynching, unlike communal riots, is not one social group attacking another; it is ordinary citizens becoming both the government and the state, and criminalising even the fact of being from another community or caste.
Bhagat Singh, who the rebels who exploded the smoke canisters were apparently drawn to, was sharply hostile to statism, and was committed to the vision of a justice that cannot be reduced to either law and government, or even to the sovereign state. Thus, as Simona Sawhney writes in a thoughtful essay, Bhagat Singh had an “existential approach to the political.” “By an existential approach I do not mean an approach influenced by Western existentialist thinkers, but rather an approach for which the essential mortality of human life and the question of political community were mutually implicated and gave meaning to one another.”
There is much to unpack in this thought. But for now, her remarks can be extended with this observation: an existential approach to the political moves away not only from law but also the justice centred around the state. It seeks instead a justice centred around the reflective communities that we form through conversations with ourselves and others. Which of these conversations – community or self – comes first is a chicken and egg question: neither is possible without the other.
The capacity for such conversations is what is first lost in statism, for statism involves surrendering one’s conscience to a higher good. Yet, such conversation is the essence of conscience. And we cannot – must not – rule out the possibility that those who engaged in the desperate act of exploding the smoke canister – an act that they would have surely known was futile in any instrumental sense of the word – were consciously or unconsciously hoping to spark consciences that have been deadened by statism.
(Ajay Skaria teaches history at the University of Minnesota. Courtesy: The Wire.)
Drop the UAPA Charges Against Youth Arrested in Parliament Jumping Case: PUCL
People’s Union For Civil Liberties
The PUCL condemns the UAPA charges which have been filed against the young persons who have been arrested on 13th December, 2023, for jumping over the visitor’s gallery in the new Parliament, releasing coloured but harmless smoke from canisters and shouting slogans, ‘Inquilab Zindabad’ and ‘Bhagat Singh Amar Rahe’. Sagar Sharma, a 26 year old youth from Lucknow and 35-year-old Manoranjan D, an engineering graduate from Bengaluru, who jumped from the visitors’ gallery were overpowered by the MPs, thrashed and handed over to the police.
At about the same time, 2 other youth standing outside the Parliament premises, Amol Shinde (25) and Neelam Devi (42), were arrested for spraying coloured gas, shouting slogans “tanashahi nahi chalegi” as well as raising slogans on unemployment, atrocities against women in Manipur, and shouting “Jai Bhim”. The others arrested were Vishal Sharma (40) and Lalit Jha (38). The arrested were a part of a group of six people who planned the incident and were associated with a social media page ‘Bhagat Singh Fan Club’. What seemed to be common to all the accused is their admiration towards freedom fighters, Bhagat Singh, Sukhdev Thapar, and Shivaram Rajguru.
All the 6 persons were booked for offences under sections 120B (criminal conspiracy), 452 (trespass), 153 (wantonly giving provocation, with intent to cause riot), 186 (obstructing public servant in discharge of public functions), and 353 (assault or criminal force to deter public servant from discharge of his duty).
What is very disturbing however, is that the youth have also been implicated for having committed ‘terrorist offences’ under sections 16 and 18 ( for committing a terrorist act and conspiracy to commit a terrorist act) of the Unlawful Activities (Prevention) Act, (UAPA).
Undoubtedly what the 2 youths, Sagar Sharma and Manoranjan did with assistance from the others does amount to an unprecedented security breach in the newly inaugurated parliament building and has to be taken seriously from the point of view of the safety and security of parliamentarians.
However, it is an egregious and condemnable misuse of the law to implicate them for committing terrorist activities, especially when it was widely reported that the main motivation behind the audacious, albeit dangerous act, of the 6 – member team was to highlight in a sensational manner, the nation-wide problems of unemployment, inequality, atrocities against women, the Manipur violence, authoritarianism and other issues of common social and political concern.
Behind the actions of the 6 young people is the harsh reality that the issue of unemployment has been simmering over the last nine years with no meaningful response from the Central Government. In 2023, the unemployment rate is 7.6 %, which is higher than pre-pandemic rates. As a response to this seeming indifference by the government, much like their hero Bhagat Singh, these young people too, sought to ‘make the deaf hear and to give the heedless a timeless warning’. As their hero Bhagat Singh explained in a statement when he was being prosecuted for his actions, ‘we dropped the bomb on the floor of the Assembly Chamber to register our protest on behalf of those who had no other means left to give expression to their heart rending agony’.
The use of a draconian law such as the UAPA against the arrested youth is nothing but an abuse of the legal process.
Under the UAPA, for an act to be deemed a terrorist act under Section 15 there must be an intention to ‘threaten’ the ‘unity and integrity’ of India or an intention to ‘strike terror’ in a section of the people. The intention must be accompanied by an action in which ‘bombs, dynamite or other explosive substances or inflammable substances’ or ‘noxious gases’ of a ‘hazardous nature’ are employed which are likely to cause ‘death, ‘loss of life’ or even ‘economic disruption’.
Even under an expansive understanding of a terrorist act in Section 15 of the UAPA, there is no prima facie material to indicate an intention to ‘strike terror’, ‘threaten’ the ‘unity and integrity of India or the use of any ‘noxious gases’ of an ‘hazardous nature’. There is no loss of life or threat of the loss of life or even ‘economic disruption’ in the intrusion into and disruption of parliament.
The fact that what was released in parliament was harmless yellow smoke seems to indicate that the aim of the fans of Bhagat Singh was to ‘make the deaf hear’. The objective seems to have been to draw attention to youth unemployment, authoritarian government and atrocities against women in Manipur.
While the aim of abuse of laws like UAPA is to turn the populace into meek subjects, because of the `chilling effect’ it produces on others who may want to express their views to the government. Incidents like the protest of these 6 youth highlights that democratically minded citizens will find peaceful, non-violent and Gandhian means to protest and express their opposition to authoritarian and fascist politics becoming risky and dangerous.
We would like to stress that it is vital that the issues raised by the young people be addressed by the government as socio-political concerns and these substantive concerns not be twisted into a ‘terrorist act’. The government will do well to keep in mind Bhagat Singh’s statement in his trial when he said that, ‘we then deliberately offered ourselves to bear the penalty for what we had done and to let the imperialist exploiters know that by crushing individuals, they cannot kill ideas… can ordinances and Safety Bills snuff out the flames of freedom in India?’
In another egregious example of the abuse of UAPA, the Jammu and Kashmir police invoked the law against seven students of Sher-e-Kashmir University of Agricultural Sciences and Technology (SKUAST) – Kashmir for allegedly raising anti-India slogans and celebrating the Indian cricket team’s loss in the World Cup 2023 final. While the ensuing widespread condemnation of the police action led to the police reportedly dropping the UAPA charges, this incident once again highlights the abandon with which the state uses laws like UAPA. What permits this continued abuse of laws like UAPA by the executive is the unwillingness of the judiciary to check the abuse at the inception stage of prosecution itself.
It is unfortunate that cases like the parliament case as well as the Kashmir case are not isolated instances of the abuse of the law. There is an increasingly trend of the invocation of UAPA to deal with dissenting opinions. While 814 cases were filed in 2021, 1005 cases under the UAPA were filed in 2022. The injustice of the UAPA is that of the 24,134 who were arrested between 2016-2020, only 212 were convicted, leaving the rest to languish in prison under the harsh `no bail’ doctrine of the UAPA. A study by the PUCL of UAPA cases from 2015-2020 concluded that the conviction rate of UAPA cases is an abysmal 2.8%.
The continued unconstitutional invocation of UAPA is an egregious violation of the right to freedom of speech, assembly and association. The arrest of the six young people is nothing but a weaponization of the UAPA to extinguish these constitutional freedoms.
Over the last 4 decades PUCL has opposed draconian, anti-democratic so-called anti-terrorism laws like TADA and POTA and successfully campaigned for their repeal. Our report on the abuse of UAPA has highlighted the widespread nature of abuse of UAPA across India to silence human rights defenders, rights activists, academics, journalists and other concerned citizens who have questioned the state. The PUCL once again calls upon all democratic minded citizens and groups to unitedly demand repeal of UAPA.
The PUCL reiterates its demand that the cases under the UAPA against the six young people be withdrawn by the state, the accused be released and the state desist from filing such frivolous UAPA cases against all those who dissent.
(Kavita Srivastava, President and Dr. V. Suresh, General Secretary, People’s Union for Civil Liberties. Courtesy: Countercurrents.org.)
In another article published in ‘India Today’, ‘Unemployment, Inflation: Rahul Gandhi Blames PM Modi’s Policies for Parliament Security Breach’, Amit Bhardwaj writes (extract):
Congress MP Rahul Gandhi blamed unemployment due to Prime Minister Narendra Modi’s policies for Parliament security breach. “The citizens of the country are not getting employment because of (Prime Minister Narendra) Modi’s policies. Unemployment is the reason why the security breach happened,” he told reporters on Saturday.
Rahul Gandhi further said that the biggest problem the Indian population is facing currently is unemployment.
“The security breach has indeed happened. But the point is, why did it happen? The main issue is unemployment. Owing to Modi ji’s policies, the people of India are not getting employment,” the Wayanad MP said.
Rahul Gandhi said that unemployment and also inflation due to the Prime Minister’s policies are the reasons behind the Parliament security breach.
(Courtesy: India Today.)
