Posted by Tasmin Kurien and Aazhi Arasi

We live in dark times now. It’s evident every time we turn on our TV and switch to a news channel or read the Facebook comment section on any current issue. In this dark passage, our legal system seems to be the flicker of light that is offering us hope. The recent rulings of the Supreme Court on section 377, 497, and the verdict on women’s entry to the Sabarimala temple have comforted and consoled our agitated souls. These judgements have been progressive, commendable, exemplary, and have served well to the elite of the nation.

However, these judgements must not let us turn a blind eye to the other recent judgements of the Supreme Court that have been not so progressive. On August 31st, the court ordered that SC/STs can avail reservation only from their home states. On September 6th the Supreme Court extended the house arrest of the activists and writers who were arrested under the Unlawful Activities (Prevention) Act. On September 26th, the apex court announced that those belonging to the ‘creamy layer’ will be no longer be eligible for reservations in promotion for SC/STs.

The Supreme Court, on September 28th, has made a critical judgement allowing the Maharashtra police to continue investigations after the contentious arrests of five rights’ activists in multi-city raids in August.

Also read: Why The State Is Responsible For The Violence In Bhima Koregaon

What was peculiar about the verdict was the fractured and inconclusive judgement given by the apex court – while the plea for a SIT probe has been dismissed, the five accused will continue to remain under house arrest for four more weeks and be able to apply for bail in the lower courts.

Witch-Hunt Or Fair Investigation

The five activists Varavara Rao, Arun Ferreira, Vernon Gonsalves, Sudha Bharadwaj and Gautam Navlakha, have been under house arrest since August 29th. They were initially arrested for allegedly causing caste violence to break out between upper-caste and Dalit people by making inflammatory speeches at the Elghar Parishad conference, which was held on January 1st to mark the 200th anniversary of the Battle of Koregaon-Bhima

In cross-country raids in June, the Pune police cracked down on 10 activists and lawyers, who had, seemingly coincidentally, written criticising the incumbent government’s policies on Kashmir and Dalit issues.

On August 28th, the Maharashtra police arrested Telugu poet Varavara Rao from Hyderabad, activists Vernon Gonsalves and Arun Ferreira from Mumbai, trade union activist Sudha Bharadwaj from Faridabad and civil liberties activist Gautam Navlakha from Delhi.

All five were arrested for alleged Maoist links and conspiring to assassinate Prime Minister Narendra Modi. Right-wing politicians and many media outlets including Republican TV and India Today called them the ‘urban Naxals.’

Justice Chandrachud called out what he felt was the Pune police’s attempt to besmirch the activists reputation through a trial led by the media.

Subsequently, historian Romila Thapar and four activists moved the Supreme Court against the arrests seeking their immediate release and a SIT probe. The apex court then put them under house arrest till September 6, after a particularly suspicious attempt by the Pune police to hold a media briefing, where they announced on national television that the five activists were linked to banned Maoist outfits in the country – a move which shows a serious lack of professionalism in a matter as sensitive as this.

In fact, the minority judge Justice Chandrachud disagreed with the majority judgement, calling out what he felt was the Pune police’s attempt to “besmirch their [the activists’] reputation” through “a trial led by the media”. He pointed out that the “letter alleged to have been written by Sudha Bhardwaj was flashed on a TV channel, police selectively disclosing probe details to media [and] casting cloud on fairness of investigation”.

The Bombay High Court had expressed the same bone of contention when it pulled up the Maharashtra police for the briefing the press on the arrests when the matter was sub-judice and still under investigation.

It is worth noting that the press briefing by the joint commissioner of police against the rights’ activists was a hurried one and apart from casting accusations at the arrested activists, there was barely any attempt made to explain on what grounds they had done so.

Why This Verdict Is A Big Deal

The activists who are under trial in the case are all out-spoken critics of the Modi government. While it would be unfair to presume that the current administration influenced the verdict, the verdict seems to be following a pattern of verdicts that seem, on the surface, discriminatory to the oppressed castes.

On March 20, a two-judge bench of the Supreme Court comprising Justices AK Goel and UU Lalit amended the Prevention of Atrocities Act, saying that it had been abused by ‘vested interests’ to falsely implicate innocent people in cases. Justice Goel said, “Everyone has the right to seek protection from arrest”. It led to subsequent nationwide protests by Dalit groups.

It is unlikely that any of these activists will ever be convicted for their accused crimes but the process of proving their innocence can take years.

Another judgement passed last week also came under criticism from minority groups and the Opposition for making it tougher to get reservation in promotions. These had earlier made it possible to break the cycle of under-representation in the Group C and D level posts. The verdict ruled that it was necessary to determine who came under the ‘creamy layer’ of the OBCs (earning Rs 8 lakh per annum) and check reservation in their cases. As Sanjana Pegu rightly points out in her article, “One of the common fallacies or confusion with discourses related to reservation in this country is that it is seen as a correction for economic inequality which then engenders baseless rhetoric such as that of ‘creamy layer’”. 

In the light of these verdicts, the arrests of the five activists assumes more significance as these are primarily human rights’ activists and lawyers fighting for the rights of Dalits and SC/STs.

Fractured Verdict

It is not rare for the Supreme Court to have dissenting judges in important verdicts over sensitive issues. What is rare is the decisiveness of the court to choose not interfere in the case but still deny the Maharashtra police custody of the arrested activists for at least one more month.

The charge of a plot to assassinate the prime minister is a serious threat that requires investigation. On the other hand, a convenient letter written by one of the accused in the case discussing every detail of the plot to one suspiciously-named ‘Conrad’ reeks of false implications.

The Supreme Court bench seemed to think so too. For those booked under the Unlawful Activities (Prevention) Act, the process of applying for bail is a complicated, drawn-out process that can stretch on for years. The apex court, in their verdict, made it clear that the activists could approach the trial courts for bail. It is unlikely that any of these activists will ever be convicted for their accused crimes but the process of proving their innocence can take years, no thanks to the Supreme Court. 

Also read:  5 Times UAPA Was Used Against Dalit, Bahujan & Adivasi Assertion | #RepealUAPA

“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries” stated justice Indu Malhotra in the historic judgement of section 377. Is the Supreme court going to continue ignoring the current toxic pattern that is haunting the country, only to realise decades later that such an apology is necessary for the Dalit and the SC/ST communities as well?


Tasmin Kurien is a digital journalist with two prominent YouTube news channels. She’s a vocal feminist and an armchair social commentator. You can follow her on Twitter and Facebook.

Aazhi is a literature graduate who dreams of understanding Derrida, Foucault, and Nietzsche one day.

Leave a Reply