India: Stop Misuse of Counterterrorism Laws

(New York) – Authorities in India should conduct an independent review of apparent politically motivated terrorism charges filed against performers in a Dalit cultural group, Human Rights Watch said today.

Members of Kabir Kala Manch, charged in 2011 under India’s draconian counterterrorism laws, remain subject to prosecution for their alleged support of Maoist militants. One of them, eight months pregnant, was denied bail and must wait until June 27 for an appeals decision on her bail application. Indian courts have repeatedly ruled that ideological sympathy should not be interpreted as active membership in a banned organization.

“The Indian authorities should not conflate shared sympathy for concerns about oppression and social inequity expressed by the Maoists, with criminal complicity in violence,” said Meenakshi Ganguly, South Asia director. “The government should ensure that peaceful activists can speak out without fear of terrorism charges.”

India’s counterterrorism and sedition laws have been widely misused to target political opponents, tribal groups, religious and ethnic minorities, and Dalits. Amendments made to the Unlawful Activities (Prevention) Act in 2008 and 2012 could result in further misuse.

In 2011, authorities in the western Indian state of Maharashtra charged 15 people with being members of the banned Communist Party of India (Maoist) – also known as Naxalites. Eleven of them have been arrested, six of whom are members of Kabir Kala Manch, a Pune-based cultural group of singers, poets, and artists. The group, largely consisting of Dalit youth, uses music, poetry, and street plays to raise awareness about issues such as oppression of Dalits and tribal groups, social inequality, corruption, and Hindu-Muslim relations.

The state counterterrorism squad arrested two Kabir Kala Manch members, Dhavala K. Dhengale and Siddharth Bhosale, in May 2011. Dhengale’s lawyers allege he was tortured in police custody and was forced to make a confession, which he has retracted. Police also brought cases against four other members of the cultural group, who subsequently went into hiding.

The authorities accused the six of being members of a “terrorist organization” under the Unlawful Activities (Prevention) Act 1967. If convicted, they face sentences of up to life in prison. They have also been charged under numerous penal provisions dealing with extortion, cheating, and forgery.

In January 2013, the High Court in Mumbai granted bail to Dhengale and Bhosale, noting that the charges filed indicated that they were sympathetic to the Maoist philosophy but not active members of the Maoist organization. The court said that “drastic provisions” added to the Unlawful Activities (Prevention) Act in 2008 required that membership in an illegal organization be interpreted in the light of fundamental freedoms such as the rights to free speech and expression, and thus “passive membership” was insufficient for prosecution.

Following the court order, in April and May, the four other members of Kabir Kala Manch –Sheetal Sathe, Sachin Mali, Sagar Gorke, and Ramesh Gaichor – who had been named in the 2011 case, turned themselves in. All four remain in judicial custody as they wait for the police to file charges. A lower sessions court in Mumbai denied bail to Sathe, who is eight months pregnant.

“This is not the first time social activists have come under attack or been arbitrarily arrested on unsubstantiated accusations of Maoist links,” Ganguly said. “Wrongful arrests of peaceful activists only hurt the government’s image and provide a fertile ground for Maoist propaganda.”

Dr. Binayak Sen, a physician and human rights activist, was convicted in December 2010 and sentenced to life in prison for sedition, for allegedly acting as a courier for a Naxalite leader in jail, even though he had visited the leader under the supervision of jail authorities. After his arrest in 2007, Sen was awarded the prestigious Jonathan Mann Award for Global Health and Human Rights, and rights groups and doctors’ organizations have campaigned for his release. Sen has appealed his conviction, and the Supreme Court in April 2011 ordered his release on bail in the interim saying: “We are a democratic country. He may be a sympathizer. That does not make him guilty of sedition.”

Human Rights Watch has repeatedly called on the Indian government to revise the definition of terrorism, and ensure that restrictions on organizations do not violate the rights to freedom of association and expression under international law. Human Rights Watch has also urged the repeal of provisions in the Unlawful Activities (Prevention) Act, such as those authorizing pre-charge detention for up to 180 days including 30 days in police custody, limitations on bail, and presumption of guilt in certain circumstances.

“Instead of arresting people who are using art to raise their voices against poor governance and social malaise, the government should focus on better safeguards for fundamental freedoms,” Ganguly said. “Too often, police, frustrated by their inability to stem criminal acts by various armed groups, have misused the law to arrest critics, social activists, or ideological supporters of these groups.”

(2013-06-25/hrw)