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July 06, 2017

Ominous arrests point at imminent rule of the outlaw in Uttar Pradesh

[This is an AHRC Article.]

The arrests of 31 Dalit activists in Lucknow, state capital of Uttar Pradesh, is an ominous marker of the things to come. Add the circumstances of their arrest and they also hint at an authoritarian regime lurching around, set for the takeover of whatever little is left of dissent, democracy and the rule of law in the state. The arrests are not exceptional in being that; arrest of activists critical has become a norm ever since the incumbent Bhartiya Janata Party government came to power in March this year. There has been a battery of arrests- of anyone criticizing the government in general and the Chief Minister Yogi Adityanath in particular.

A young man, named Zakir Ali Tyagi was arrested over ever changing and bizarre allegations almost as soon as the current government took over. The police first claimed that he was arrested because of criticizing the chief minister and objectionable comments including against river Ganga. Ironically, the police dropped all these charges later and booked him for forgery for using the picture of a slain police officer as his profile picture- a very common practice for showing solidarity and absolutely legal as one cannot be charged for duping unless there is a sufferer!

The arrest was followed by similar crack down across Uttar Pradesh and arrests of many a youth over charges, to name a few, of circulating morphed pictures of the chief minister, for objectionable Facebook post against the chief minister, for ‘objectionable remarks against the chief minister and the prime Minister, Narendra Modi and so on. The police, of course, never elaborated on what really was objectionable in the remarks they found objectionable. The police, of course, often even using Section 66A of the Information Technology Act that Supreme Court of India found ‘unconstitutional in entirety’ and held that it invaded ‘right to free speech’ and that every expression used in it was ‘nebulous’.

These arrests were followed by slapping serious criminal charges under serious sections of Indian Penal Code including 143, 147, 332, 341, 353, 504 and 506 on eleven students of Lucknow University. The students had black flagged CM Yogi Adityanath, another routine method of protest. Yet, the charges were slapped for making it difficult for them to get bail and they indeed failed to get that and were sent to 14 days’ judicial custody.

And yet, yesterday’s arrests are of a different league altogether. While the earlier ones came in the pretense of a crime, even if no criminality was involved, yesterday’s one did away with even that. In these, the activists were arrested before holding a press conference against increasing atrocities against Dalits in the state, on the pretext that they could later march to the chief minister’s residence which they did not have permission for. Yes, they were arrested not for committing any crime or breaking any law, the police simply arrested them on the basis that it thought they could! If this was not enough, then add that the tale of their arrest is one in which travesty meets irony! The huge contingent of the police that was waiting for them since morning arrested them from inside the premises of the Press Club of Uttar Pradesh, in perhaps a true tribute to the freedom of speech guaranteed by the constitution of India!

Sadly, arrests for such a whimsical reason challenge the very essence of the rule of law, as outlined by Professor A. V. Dicey, one of the biggest authorities on the issue and elaborated by Tom Bingham, another giant on the subject. The very first meaning Dicey attached to the rule of law was that “no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the lands.” If the meaning is lost on anyone, Bingham made it clear. He explains that “If anyone- you or I- is to be penalized it must not be for breaking some rule dreamt up by an ingenious minister or an official in order to convict us. It must be for a proven breach of the established law of the land.”

The government of Uttar Pradesh has evidently failed to follow this cardinal rule. Sadly, and unquestionably, the breach is not a mistake or an oversight. It is done to deliver a message, the message it sent by all those arrests and brutal crackdown on dissent- any dissent.

The arrests only continue the trend. If not ‘arrested’ right away’, the trend could only lead to what Bingham calls the “hallmarks of a regime which flouts the rule of law”. If broad day light arbitrary arrests have begun, ‘midnight knock on the door’ cannot be far away, can it?

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