Judicial Abetment and Appeasement of Fascism

Recent bail judgments in India hold up a mirror to blatant judicial double standards – showing lenience towards Hindu-supremacist hate while showing indifference to the indefinite imprisonment of scores of defenders of democracy as under-trials under draconian laws.

A sessions court in Delhi recently denied bail to Umar Khalid, one of the young activists whose role in supporting protests against the discriminatory Citizenship Amendment Act and National Register of Citizens has been construed by the Delhi Police to be “conspiracy to instigate riots”. Umar Khalid, like several other activists in Delhi, all but two of whom are Muslim, are charged under the draconian anti-terror law UAPA, even while it was the Muslim community that bore the brunt of the state-sponsored violence in Delhi in February-March 2020.

The Supreme Court Watali judgment prevents judges from assessing the weight and credibility of evidence at the bail stage for persons accused under UAPA. Nevertheless, some judgments in Delhi and Bombay High Courts have at least scrutinised the allegations of the prosecution and found them wanting. The Delhi High Court, granting bail to Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita for example, found that the allegations listed the prosecution were related merely to democratic protest and did not meet the definitions of “terrorism” as expected of UAPA charges. But the sessions court that denied Umar Khalid bail did not even scrutinise the incoherence and flimsiness of the prosecution’s allegations, let alone examine the arguments of the defence. It blindly parroted the prosecution’s allegations and dismissed all objections with the remark that these could be addressed in the course of the trial. This order shows how, when the judiciary refuses to subject the State’s actions to constitutional scrutiny, individuals can be imprisoned indefinitely based on the flimsiest and wildest of allegations. Attending democratic meetings, making speeches calling for non-violent protests, and belonging to a WhatsApp group, are enough to imprison those whom the State views as political opponents.

Contrast this treatment of Umar Khalid with a Delhi sessions court’s sympathetic treatment of Niraj Bishnoi and Aumkareshwar Thakur, both accused of creating apps to “action” Muslim women online. Both were granted bail; and the court observed that “prolonged incarceration would be detrimental to his (Bishnoi’s) overall well-being and career” since he is a young man. Why is such admirable judicial concern expressed only for hatemongers, while it is withheld for young people like Umar Khalid, Khalid Saifi, and Gulfisha who are being subjected to “prolonged incarceration,” for organising protests in defence of India’s Constitution?

Even more dangerous are the remarks of a Delhi High Court judge while hearing a plea for prosecution of two BJP leaders for hate speech. Union minister Anurag Thakur and BJP MP Parvesh Verma had made election speeches inciting violence against anti-CAA protestors, saying “Desh ke gaddaron ko, Goli maaro saalon ko” (shoot these traitors). These speeches resulted in three incidents of firing at two different anti-CAA protest sites in Delhi. During the hearing, the judge implied that hate-speech was acceptable as part of election campaigns, and should not be treated as criminal if it was delivered “with a smile”. It should also be noted that those who actually fired at unarmed protestors have also got speedy bail and gone on to utter more Islamophobic hate-speeches and threats without their bail being revoked. Likewise, Yati Narsinhanand who has repeatedly called for genocide of Muslims, received bail as a matter of course.

In the Bhima Koregaon case as well, the same judicial double standard has been seen. Stan Swamy, the octogenarian human rights defender afflicted with Parkinson’s, who was the victim of UAPA charges in that case, died a prisoner because the court denied his repeated pleas for bail. Sudha Bharadwaj was recently granted bail after spending three years in prison, while other BK prisoners continue to be denied bail. Meanwhile, Ajay Teni Mishra, the Minister’s son who mowed down farmers at Lakhimpur Kheri, easily secured bail.

Bail ought indeed to be the norm and jail the exception. But India’s prisons are full of under-trials who have either been denied bail, or cannot afford to pay for legal representation or bail bonds. Bail has become an exception for the privileged.

But the double standard we are currently witnessing takes matters to new judicial lows. Increasingly the Indian judiciary is acting as a key enabler of the Hindu-supremacist state in its persecution of democratic activists and patronage of violent and hatemongering thugs. India’s people need to speak up in larger numbers and with greater boldness and unity, against such judicial abetment and appeasement of fascism.