A Life in Law and Activism SUDHA BHARADWAJ SPEAKS People’s Union for Civil Liberties (PUCL) l January 2021 A Life in Law and Activism SUDHA BHARADWAJ SPEAKS Published by : Peoples Union of Civil Liberties (PUCL) Edition : January 2021 Sudha Bharadwaj’s Darshana Mitra and interview by : Santanu Chakraborty Edited by : Arvind Narrain Pictures credit : PUCL Cover Design : Vinay Jain Layout : Vinay C Dedicated to all those who have been unjustly imprisoned for exercising their constitutional right to freedom of speech and expression The struggle of man against power is the struggle of memory against forgetting. — Milan Kundera CONTENTS Acknowledgements ....................................................................11 Foreword ................................................................................... 13 INTRODUCTION Sudha Bharadwaj and the Right to Dissent Arvind Narrain ........................................................................ 19 ANTI-TERROR LAWS UAPA: Law as Instrumentality of State Tyranny and Violence V. Suresh ...................................................................................43 BHIMA KOREGAON The Bhima Koregaon–Elgar Parishad Conspiracy Case: A PUCL Background Document Shalini Gera and V. Suresh ......................................................83 SUDHA BHARADWAJ SPEAKS Becoming a Lawyer ................................................................. 105 Early Life ..................................................................................110 Shanker Guha Niyogi: Bringing the Constitution to Life ............................................115 Working at Chhattisgarh Mukti Morcha (CMM) ....................119 The Assassination of Niyogi and the Murder Trial ................ 120 Courts and Labour Rights: SAIL Judgment and its Impact .............................................. 129 Proving a Sham and Bogus Contract ...................................... 133 Contract Labour .......................................................................141 Whittling Down Labour Law Protections .............................. 145 A Socio-Legal Strategy: Unionization and the Use of Strikes .......................................147 The Chattisgarh Mukti Morcha ...............................................155 Dying Declaration: The Niyogi Murder Trial ..........................161 Beginning an Association with PUCL in the Time of Salwa Judum ................................................... 165 Fighting Habeas Corpus Cases ................................................172 Fighting Atrocities Cases .........................................................176 Filing Repeated Cases: State Vindictiveness.......................... 178 The CSPSA: Dangers of a Draconian Law ..............................180 Civil Society in Chhattisgarh .................................................. 192 A People’s Lawyer: The Story of Janhit ................................. 195 Challenging Arbitrary Arrests in a Militarised Zone .............205 International Human Rights Interventions ........................... 213 Role of SHRC .......................................................................... 215 The impact of the Nandini Sundar Judgment ........................217 Fighting Land Displacement Cases ........................................ 221 Building an Adivasi Jurisprudence ........................................232 Clients as Heroes ....................................................................240 Independence of the Judiciary ...............................................242 Fighting for Gender Justice ....................................................243 Being a Lawyer and Activist ................................................... 247 Environmental Cases ..............................................................250 A Mountain of Cases ............................................................... 255 Motivation for Continuing in a Bleak Situation ..................... 281 APPENDICES 1. Sections 2, 13, and 15 of the Unlawful Activities (Prevention) Act (UAPA) .................................................287 2. Section 65(3) of the Madhya Pradesh Industrial Relations (MPIR) Act, 1960 and Section 17(B) of the Industrial Disputes Act (IDA), 1947 ........................................................................290 3. Problems in Section 2 (Definitions) of the Chhattisgarh Special Public Security Act (CSPSA), 2005 .................................................................292 4. Janki Sidar Case ...............................................................296 5. Kashiram Yadav v. Union of India ..................................298 6. Extract from Janhit Bulletin, October 2013 .................... 300 7. Sections 4, 5A, 6, and 17 of the Land Acquisition Act (LAA), 1894 .............................303 8. Section 25N and 25F of the Industrial Disputes Act (IDA), 1947 .......................... 310 11 ACKNOWLEDGEMENTS This book has had a long gestation period. It first took shape with the interview of Sudha Bharadwaj, conducted by Darshana Mitra and Santanu Chakraborty, in 2012. Additions to that document were made by Atindriyo Chakrabarty who did the hard work of providing meaningful and illustrative annotations by digging into contemporary archives on Chhattisgarh. Siddhant Kalra did another valuable round of editing. Special thanks to Shalini Gera who looked over the manuscript from the perspective of all changes that the current year has brought with it and provided useful updates in the form of footnotes. Since the interview, a number of individuals read the whole text and provided inputs, indicating its value as a resource and pressing for the urgency of its public release. The assistance of Lekha Adavi, Poorna Ravishanker and Vinay C has been invaluable in the editing of the manuscript. The inspiring activists at PUCL including V. Suresh and Kavita Srivastava saw the potential of this work and were instrumental in getting this out as a PUCL publication. We would also like to thank the PUCL President, Mr. Ravi Kiran for providing a foreword at short notice. 12 13 Foreword Ravi Kiran Jain National President, PUCL On 25th June 2020, we marked the 45th anniversary of one of the darkest moments of Indian democracy, namely the declaration of emergency by Indira Gandhi in 1975. However, the fact that the darkness passed in a little under two years with the withdrawal of the emergency can be read as a triumph for Indian democracy. The People’s Union for Civil Liberties (PUCL) attributes this development to the impassioned resistance by thousands of ordinary citizens who, despite being illegally arrested, imprisoned, and tortured, chose not to be cowed down by Indira Gandhi’s police state and instead defiantly fought to reclaim the Constitution and democracy.1 There are parallels between the emergency then and our contemporary period when we are passing through a phase of what can only be described as an ‘undeclared emergency’. In the use of the Unlawful Activities Prevention Act (UAPA) and the National Security Act (NSA) today to target dissent in civil society, there is a parallel to the use of the Maintenance of 1 People’s Union for Civil Liberties (PUCL) (2020), PUCL: Current situation in the country worse than what it was during Emergency, in GroundXero, 26th June, available at https://www.groundxero.in/2020/06/26/pucl- current-situation-in-the-country-worse-than-what-it-was-during- emergency/, last seen on 9/9/2020. Internal Security Act (MISA) to target activists and opposition 14 politicians in the period of the emergency. It is estimated that today there are thousands of activists and ordinary people who have been imprisoned by the authorities. In the period of the ‘undeclared emergency’, the arrests of human rights activists and dissenters have been in three big waves. The state targeting of human rights activists began with an open- ended FIR, which has been used to arrest as of now sixteen activists in a false and fabricated case with respect to violence following the Bhima Koregoan event. The state followed this with the illegal detention of all political leaders and civil society activists in Kashmir, following the unconstitutional abrogation of Article 370 of the Constitution. The latest phase has been the arrests that have followed the Delhi pogrom in which peaceful anti-CAA protesters were wrongly, and maliciously, charged with having been complicit in the Delhi pogrom. While this development parallels the horrors of the ‘declared emergency’ in every way, what makes the ‘undeclared emergency’ so much more dangerous are the following four factors: Firstly, the attack on human rights defenders as ‘urban naxals’, ‘anti-national’, and ‘anti-social’ and using that label to launch and justify both state repression and induce targeted personalised attacks and assassinations as has happened to Gowri Lankesh and others. This is part of the state-sanctioned politics of violence unleashed on all those who oppose the majoritarian agenda of the state. Secondly, the power of the coercive state is further supplemented by a mob, which operates outside the rule of law. The mob’s lawless actions of murder and violence are justified and legitimised on the platform of a majoritarian nationalism and these actions threaten the very rubric of life governed by 15 the Constitution. Thirdly, the media is awash with hate speech against minorities. The hate speech has further crystallised and unfortunately deepened the ‘communal common sense’ that Muslims