NB: The rendering permanent of an ’emergency’ was the Nazi jurist Carl Schmitt’s contribution to the jurisprudence of tyranny. For him, ‘sovereign is he who decides the state of exception‘; and politics was defined in its essence by the ‘friend-enemy distinction‘. I have developed this argument at length in my 2023 essay on the demolition of justice. Readers interested in the political-philosophical dimension of the attack on justice (on all sides of the political spectrum), may kindly read the aforementioned piece, as well as my extended note on militant capitalism. (And here’s an example of the uses of Schmitt’s juridical philosophy). All those who go on about decolonisation may kindly reflect on the fact that the origins of the UAPA (passed by the UPA); and all other laws such as MISA, and the Defence of India Rules, lie in the Bengal Regulation III of 1818; which gave the state the power of preventive detention.
The entire Indian establishment is addicted to keeping people in prison without trial for an indefinite duration, even until death (as in the case of Fr Stan Swamy). This is the simple truth of the matter, and while the ultra-patriots may tell us they are ‘decolonising’ Indian culture, the fact remains they are clinging to a 206 year old legal tyranny established not even by direct British rule, but by the East India Company. Judges, police officers, bureaucrats and the thinking public may consider whether we are citizens of a constitutionally grounded Republic or subjects of (an aspiring) despotic empire. Maybe somewhere between the two, with our rulers desperately trying to push the structure in the latter direction. DS
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Colonial-era laws were marked by one basic feature – they enabled perpetual expansion of punitive powers that the State exerted over its subjects. The argument that we are in the process of decolonizing laws is a bogus one… There are two modes through which the coloniser’s mentality continues to be deployed. First, through a constant declaration of emergency and danger, and by showing rights as a “limitation” on the regime’s capacity to deal with the threat. This makes it possible for the sovereign to (a) create an “exceptional” regime of repression inside the larger framework of democratic legality; and (b) sanction the breach of an ethical minimum represented by basic rights and their statutory safeguards, thus reproducing the dynamic of subjecthood in present times.
Rajshree Chandra
I toiled through Arundhati Roy’s Ministry of Utmost Happiness, but what the book did was to make the transgender community and their extreme vulnerabilities visible to me in ways that I had not seen before. Each time I see them at a traffic red light now, I smile as I hand over a small cash-note, time permitting I ask them their names, pay them a compliment, oftentimes wondering about their back-stories as I drive on. This is what Roy does best: she humanises the vulnerable in a way that we begin to feel and empathise – with the tribals of Dantewada, with the displaced locals of the Narmada Valley, with the anti-mining protestors at Jaduguda, or with the Kashmiri locals. It is important to underscore the emotion she evokes, as much of the debate on what she is charged with – sedition, treason, fostering enmity – rests on the impact of her words.
It is also important to understand that many of us who admire her courage and commitment, disagree with the political resolutions she proposes. And it is not because we cannot see the atrocities and appropriation, or do not seek an end to conflict and injustice. It is because there are differing perspectives on their political resolution. We may not agree with her solutions for Kashmir, or her ideas of developmentalism, or her summary dismissal of capitalism but the point simply is this: We do not have to agree with or be persuaded by the Manichean dualities she draws up, to acknowledge the legitimacy and constitutionality of her speech-acts.
Arundhati Roy today is now going to be being tried under many provisions of IPC along with the Unlawful Activities Prevention Act (UAPA) for a speech she gave in 2010, 14 long years ago.
Fourteen years ago, she was charged with sedition (S. 124 A) based on a complaint that her speech (in Delhi) advocated separation of Kashmir from India and therefore “jeopardised public peace and security”. Fourteen years later, charges have been upgraded, and she is now also charged under the anti-terror law UAPA for reasons that are legally confounding but politically quite apparent. A few more years later – after her multiple bail applications are opposed and rejected, after police extensions, after a chargesheet is filed and after her trial begins – our over-loaded legal system will spend time to ascertain the possibility of a causal link between her speech and the resultant exacerbation of conflict and secessionist impulses in Kashmir in these long intervening years. Till then, UAPA’s draconian provisions will effectively sanction her pre-trial detention, notify her as a threat for extended and extendable periods of time, with a stronger-than-ever presumption against bail.
Along with Arundhati Roy, Sheikh Showkat Hussain – a former professor at the Central University of Kashmir, who was also a speaker at the 2010 event – has been similarly charged. Before Roy, journalists incarcerated under UAPA include Aasif Sultan of Kashmir Narrator; Sajad Gul of The Kashmir Walla; independent journalist Rupesh Kumar Singh; independent journalist Gautam Navlakha; Siddique Kappan journalist from Kerala; Prabir Purkayastha of NewsClick and independent journalist Irfan Mehraj, to name some in a list that is likely much longer.
UAPA has also claimed 16 people in relation to the Bhima Koregaon violence, arrested systematically from June 2018 onwards. This includes human rights lawyers, civil rights activists, a law professor, a professor of English, a poet, a student, a Dalit-rights activist and a Jesuit Father – almost all of them had worked for the protection tribal-rights. Of the 16, only six have received bail so far, while one person – Father Stan Swamy – died in custody. UAPA has also been used to incarcerate 18 persons (accused in FIR 59) for riots in Delhi during the anti-CAA (Citizenship Amendment Act) protests. Twelve, including a brilliant scholar, Umar Khalid, are still awaiting bail nearly four years after being arrested and held without trial.
UAPA is an” exceptional law”, i.e. those laws that exist as exceptions to “ordinary” statutory law, and deal with exceptional contingencies like terror or treason. It is a special statute that bypasses safeguards available to the accused under statutory law provisions. For example, it allows for a 180-day detention without a chargesheet; sanctions police custody up to 30 days; bars anticipatory bail, and creates a strong presumption against bail. As per NCRB data, over 241 cases under sedition and 5,610 under the UAPA are pending investigation. To this the government has added many more in 2023 and 2024, Roy being the latest and the most illustrious.
Colonial-era laws were marked by one basic feature – they enabled perpetual and continued expansion of punitive powers that the State exerted over its subjects…
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Militant capitalism, bad infinity, and the longing for total revolution
Closing the Circle (Frontier, August 2012)
The Disappearing Present: Reflections on Ideology: Webinar delivered on October 16, 2020
Satyagraha: An answer to modern nihilism
An Open Letter to the world on the Bangladesh crisis of 1971
Achintya Barua remembers Ranajit Guha
Ajay Singh: Fiji – A Love Story
Annihilation – 50 years of Naxalbari
Yesterday once more – 50 years after Naxalbari
Naxalites should lay down their arms and challenge the ruling class to abide by the Constitution
After the truth-shower 