Review of Alpa Shah’s The Incarcerations | Anand Chakravarti

BOOK REVIEW

The Incarcerations:
Bhima Koregaon and the Search for Democracy in India

by Alpa Shah

HarperCollins Publishers India
2024, xxii + 561pp. Rs.699
P-ISBN 978-93-5489-986-7 (Paperback)

This is a book by a scholar of conscience – one who is deeply affected by the perverse use of state power to incarcerate sixteen persons accused of conspiring against the state in the infamous Bhima Koregaon case (henceforth BK case, and BK-16 for the sixteen accused in the case). [1] They were charged under the Unlawful Activities Prevention Act (UAPA) for their alleged role in conspiring against the state and instigating caste violence at Bhima Koregaon in January 2018, where Dalits celebrated the 200th anniversary of the victory of the British against the Peshwa ruler. All of them, irrespective of differences in background and profession, could be regarded as prisoners of conscience. The common thread running through their work was their commitment to the marginalised in Indian society – including Dalits, Adivasis, and Muslims – by unravelling the denial of their Constitutional right to social, economic, and political justice.

I view Alpa Shah’s book as an extension of her profound concern for the plight of Adivasis in the mineral belt in central and eastern India, which was evident in her earlier monograph Nightmarch (2020). The latter made a powerful statement on a major faultline in contemporary Indian society: the exploitation of Adivasis by corporate capital with the collusion of the Indian state, causing devastation to their lives and livelihood. This contradiction spawned the Maoist movement, which a former Prime Minister declared (in 2006) as the single gravest security threat facing the country. Since then, there has been a quantum leap in the state’s perception of the danger posed by Maoism. As Alpa Shah noted, ’The idea was spread that the extremists were everywhere, not just in remote parts of the country but right in the heart of Indian cities. Reports of "urban Naxals" increasingly appeared’ (2020: p.xxii). At the time of the publication of Nightmarch, the arrest of the human rights activists in the BK case had already begun. From the standpoint of the state, they were prime examples of urban Naxals. Having shown with rare sensitivity the contradiction between the state-corporate capital complex and the marginalised Adivasis, it is perhaps not surprising that HarperCollins, the publishers of Nightmarch, approached Alpa Shah to write the book under review, centred precisely on so-called urban Naxals.

In this book, Alpa Shah has undertaken a different genre of writing from that typically associated with social anthropologists who base their work on intensive fieldwork – which the discipline refers to as ’participant observation’. Nightmarch, as well as the monograph she authored earlier (2010), belong undoubtedly to the mainstream of the discipline because they are based on fieldwork spread over a long period. However, The Incarcerations is unique because the criminalisation of the BK-16 stirred her conscience, and drove her to unravel the circumstances of their incarceration, and in the process throw light on the authoritarian character of the contemporary Indian state.

The main body of the book shows, in varying detail, how the concerns of the BK-16 focussed on the lives of the structurally disempowered in Indian society, who suffered various forms of oppression: Dalits by dominant castes; Adivasis in the mineral belt by corporate capital in collusion with the state; and Muslims in contemporary India by a majoritarian state. The reader learns about the sixteen from Alpa Shah’s extraordinary synthesis of material drawn from a range of sources: interviews/conversations with some of them, or with persons close to them; their writings; and writings about them mined meticulously from the internet. Putting together this vast sea of material was indeed a mammoth task, and she was inspired to carry on, despite the difficulties, by the concluding part of an open letter to the Indian people at large written by Anand Teltumbde, one of the BK-16, on the eve of his incarceration, deploring his victimisation by the Indian state:

Well, I am off to NIA [National Investigation Agency] custody and do not know when I shall be able to talk to you again. However, I earnestly hope that you will speak out before your turn comes (p.221, emphasis added).

Thus, the author writes, ’Whenever I faltered on this book, wondered whether I should give up, I re-read this last line of Anand’s … It helped me to carry on" (p.221, emphasis added). Indeed, through her writing, she speaks out for the BK-16 – ’those unjustly incarcerated’ (p.v) – to whom she dedicates the book.

I share the author’s implicit belief that all the sixteen persons incarcerated in the BK case stood out as unusual human beings because of their idealism and their empathy for the lives of the oppressed whose voices they represented. The irony is that it is their commitment to their conscience that caught the eye of the state. To do justice to her book, I shall begin by highlighting, as briefly as possible, the salient features of their activism – which for the state was like waving a red flag. The parts on Sudha Bharadwaj and Stan Swamy (Parts 1 and 2 respectively), which cover close to one-third of the book, may be read as brief biographies, shedding light on their character before they attained adulthood, and hinting at the idealistic path they followed in the years ahead.

Sudha Bharadwaj experienced the first stirrings of empathy for the poor within herself when she was just 11 years old. While driving with her mother from the airport in Delhi, on the latter’s return from England during the winter of 1972, she noticed ’poor, emaciated, naked children [jumping] in and out of a gutter to bathe …’ (p.64). Sudha worried that the children would freeze, but her maternal uncle, who had come to receive them, reassured the girl, saying, ’ "No, no, they are used to it" ’ (p.64). However, in spite of her young age, Sudha reacted against the idea that the poor could be ’used to’ their poverty. Having grown up in an upper-middle-class environment myself, I can say with certainty that her reaction to poverty while still a child was indeed unusual.

It should not be surprising, therefore, that in the years to come, the plight of the underclass became Sudha’s primary concern. Her dream of working for the poor crystallised in the course of her full-time association with the Chhattisgarh Mukti Morcha, the union of miners launched by the legendary labour leader Shankar Guha Niyogi in Dalli Rajhara, in Chhattisgarh. She also augmented her capacity to represent labour issues by qualifying as a lawyer (in 2002). Five years later occurred what Alpa Shah calls a watershed moment in Sudha’s life, partly because of personal reasons (her marriage failed), but perhaps more significantly because she expanded her involvement in the contradiction between labour and capital by covering the displacement and violence suffered by Adivasis in the mineral belt in Chhattisgarh. As an active member of the People’s Union for Civil Liberties (PUCL) in Chhattisgarh, she investigated many fake encounters carried out by the security forces against so-called Maoists, resulting in the killing of many innocent Adivasis. (In one such fake encounter in July 2012, at the village Sarkeguda in Chhattisgarh’s Bastar region, the security forces killed 17 Adivasis. According to the report of a Judicial Commission that Sudha had played a major role in initiating, none of them was a Maoist [pp.95-101]). As powerfully stated by the author, ’Sudha was now also taking on the pact between the Indian state and the world’s most powerful national and multinational corporations to expose some of the most horrific human rights abuses in the world’ (p.107).

Though Stan Swamy (’an engine of activism’ [pp.198-203]) was born into a dominant caste in a Tamil Nadu village, his character ran against the grain of the culture of exploitation that governed his castefellows. In an incident described by Alpa Shah while Stan was still a young man, he shouted at his elder brother (’ "stop" ’) to prevent the latter from caning a Dalit landless labourer accused of stealing rice. Stan said, ’ "The poor man has nothing. He needs the grain to survive. If he has taken some rice, it is because he has been left hungry" ’ (p.160).

Stan decided to become a priest, and eventually immersed himself in the lives of Adivasis, initially in West Singhbhum district, in the present state of Jharkhand. According to Alpa Shah, ’He wanted to be with the poorest of the poor, identify with them, witness their plight and join their struggle’ (p.187).
To pursue his objectives he organised Adivasis to resist displacement and conscientised them to become aware of their constitutional rights. The flashpoint leading to his arrest was the sequel to the report published by Stan and his team in January 2016, according to which 97 per cent of as many as 3,000 prisoners in various jails in Jharkhand, accused of being Maoists, had in reality nothing to do with Maoism. Further, approximately 70 per cent of them were either Adivasis or Dalits.

Based on the findings of the report, Stan Swamy filed a Public Interest Litigation (PIL) in the Jharkhand High Court in January 2018. The court directed the state to furnish details of all the under-trial prisoners in its jails, but even a year and a half after the court order, it did not receive the relevant information. As Stan persisted with his petition, he became, in his own words, ’ "a thorn in the flesh of the state and it is intent on getting me out of its way …" ’ (p.150, emphasis added).

Of the others comprising the BK-16, most operated mainly in Maharashtra, and only a few were located elsewhere, as shown below.

Anand Teltumbde (an academic by profession), as a senior office-bearer of the Mumbai-based Committee for the Protection of Democratic Rights (CPDR), participated in fact-finding missions that investigated atrocities against Dalits. Shoma Sen (another academic), was also active in the CPDR, as well as in an organisation called Women Against Sexual Violence and State Repression. As a member of the latter, she investigated the sexual violence against women perpetrated by the Salwa Judum, a state-sponsored vigilante group. According to her friends, she was ’ "a relentless fighter for the oppressed and the marginalised" ’ (p.315, emphasis added). Her daughter, responding to her mother’s prosecution had exclaimed in utter disbelief, ’ "My mother’s been tagged a Maoist after a lifetime of working for others" ’ (p.521, n.86, emphasis added). The lawyer Surendra Gadling, based in Nagpur, provided succour to the victims of atrocities against Dalits and exposed fake encounters by the police. Arun Ferreira too was a human rights lawyer based in Mumbai. Also based in Mumbai was Vernon Gonsalves, who the author describes as a writer and political commentator. Mahesh Raut was a forest rights activist based in Gadchiroli district. Sudhir Dhawale was a Dalit rights activist, besides being a poet and a writer. Jyoti Jagtap, Sagar Gorkhe, and Ramesh Gaichor were part of the Kabir Kala Manch, a cultural troupe based in Pune that highlighted the injustices in the society around them.

Varavara Rao, based in Hyderabad, is famous as a poet and writer. His oratory, advocating the rights of the landless, added to his fame. Gautam Navlakha, a journalist by profession, became a marked man because of his ’extraordinary commitment to documenting the atrocities against Muslims in Kashmir …’ (p.408). Rona Wilson, with an M.Phil. degree from Jawaharlal Nehru University, could be described as a budding academic. He had applied for admission to the Ph.D. programme at a few British universities. His ’crime’ was his activism focussed on the release of political prisoners, apart from taking a stand against draconian laws, such as the UAPA and the Armed Forces Special Powers Act. Alpa Shah found it difficult to pinpoint why Hany Babu, a Delhi University teacher, came to be included in the BK case, because his ’only activism seemed to be making the university a more egalitarian and inclusive space for students and staff ’ (p.368). However, as speculated by his wife, it was his involvement in the campaign seeking the release of the college teacher Dr. Saibaba, who had been jailed because of his alleged Maoist connections.

As mentioned earlier, the dedication of Alpa Shah’s book makes it clear that she believes that the incarceration of the BK-16 is a travesty of justice. It is remarkable that she goes to great lengths to establish that a deep design is at the root of their criminalisation. She undertook a marathon series of inquiries, described in 64 pages, to unravel the weaponisation of surveillance technology by the police to plant ’evidence’ on the computers of some of the accused to implicate them in a Maoist conspiracy against the state. Powered by a profound sense of responsibility as a writer, she told one of the police officials who investigated the case, whom she had interviewed,’ "Sir, my responsibility as a writer is to present all sides of the story, all the unheard sides of the story" ’(p.400, emphasis added).

Towards this objective, she spoke with lawyers defending the accused, the police official mentioned above, and even various cyber security investigators, including the head of the cyber security forensic firm Arsenal Consulting, located in the United States (US). The defence lawyers had tasked this firm to verify the authencity of the evidence found on the computers of the accused. It is significant to note that Arsenal Consulting released as many as five reports that categorically stated that the computers of Rona Wilson, Surendra Gadling, and Stan Swamy had been invaded my malware (malicious software). Indeed, according to the last report, the computer of Stan Swamy, the most saint-like among the BK-16, had been ’the target of an extensive malware campaign for nearly five years, the longest known for any defendant …’ (p.514, emphasis added).

Alpa Shah’s inquiries revealed the startling fact that undercover firms, several of them based in India, undertake the nefarious task of hacking computers on a professional basis, and that the police employ their services. She discovered this by talking to ’one of the world’s leading cyber security journalists …’(p.360). The latter had based his findings on the research of a security analyst in SentinelOne, another US-based cyber security company that ’specialised in identifying networks of hackers … across the world’ (p.358). Obviously repelled by the revelations from his research, the security analyst had shared his feelings with the cyber security journalist:

These guys [the police] are not going after terrorists. They’re going after human rights defenders and journalists. And it’s not right (p.361, emphasis added).

Thus, the journalist’s story showed ’a direct link between the hackers and the Pune City Police who made the arrests [in the BK case]’ (p.358, emphasis added).

Alpa Shah’s compelling overview of the BK-16, highlighting their commitment to the marginalised, demolishes the proposition that they could be a danger to society. The irony is that the state viewed these ’custodians of democracy’ differently, and used the technology available to tar them as dangerous. The police official interviewed by her was categorical that ’ "they [were] all Maoists" (p.397) … involved in extremism, unlawful activity, and they were causing human loss …" ’ (p.401). Indeed, having just retired, he reminisced about his role in their arrest with pride: ’ "I am very much happy with what I could do for the well-being of society and for peace" ’ (p.399).

The huge contradiction between the ideals and work of the BK-16 and their criminalisation by the state raises a fundamental question regarding the character of the contemporary Indian state. The source of such a contradiction, according to various commentators and intellectuals cited by Alpa Shah, with whom she is in broad agreement, is that the current regime is essentially authoritarian, though there are variations in the terms used by them – such as ’Hindu authoritarianism’, ’authoritarian populism’, and ’electoral authoritarianism’ (p.488). Without disagreeing with such characterisations, she is persuaded by those who go much further by highlighting ’how the current playbook of authoritarianism in India has considerable parallels with Nazi Germany and Mussolini’s Italy’ (p.488). Therefore, according to her, the paramount reason for the incarceration of the BK-16 is that the regime has metamorphosed into ’an Indian form of fascism’ (p.487).

Though it is important to define the character of the present regime, it is, in my view, even more significant to explain why our polity has descended to an ’Indian form of fascism’. From Alpa Shah’s citation of the views of one of the BK defence lawyers in the section, ’The judiciary compromised’ (pp.459-63), it is clear that the institution has failed the incarcerated. Pointing to the reluctance of the courts to scrutinize the material presented by the prosecution against the accused, he said, ’ "[They] should have shown a bit of spine (p.459) … [They] have been overly compliant and subservient to the government. It is shocking. It is a scandal, it is a disgrace (p.460) … I have never seen the judiciary so compromised in such a systematic manner" ’(p.461, emphasis added).

While the above-mentioned views of the lawyer concerned on the courts are specific to the BK-16 case, they raise a question of critical importance: is the judiciary in India losing its capacity to uphold what has quintessentially been termed the ’conscience of the Constitution’ (Austin 1999), encompassing the ’fundamental rights’ and the ’directive principles of state policy’ (Parts III and IV respectively of the Constitution of India)? More specifically, does the Indian judiciary today possess the capacity to protect citizens at large under Article 21 against the arbitrary exercise of state power? This article is undoubtedly the heart of the Constitution because it covers the right to life and personal liberty. From the hostile treatment of the BK-16 by the Indian state, shown in Alpa Shah’s book, it is impossible to give a positive answer to these questions, as pointed out here.

Arguably the most egregious failure of the judiciary, with specific reference to the BK-16, is the death of Stan Swamy in judicial custody. Of the many outraged responses to his death by well-known voices in civil society, I cite that of an eminent personality in the judicial fraternity. A.P.Shah, a former Chief Justice of the Delhi High Court, and former Chairperson, Law Commission of India, captioned his article on Stan Swamy’s death in a leading newspaper as, ’Darkness at noon, felled by the judiciary’ (2021, p.6). He wrote,

Fr. Swamy’s death is much more than the death of an activist accused of terrorist activities. It is the result of a systemic abuse of majoritarian authority and disregard for the rule of law … A key reason, undoubtedly, is the weak judiciary we have today. Indeed, our judiciary today suffers from a great many flaws besides mere weakness. In Fr. Swamy’s case, the judges displayed apathy of a shocking order … (emphasis added).

Equally shocking is the response of the judiciary to the right to liberty. In the same article, A.P. Shah indicted the institution for hollowing out this right by its interpretation of the stringent provisions of the UAPA, because of which those prosecuted under this law have to suffer indefinite periods of incarceration without trial. Shah is referring here to an April 2019 Supreme Court judgement (National Investigation Agency vs. Zahoor Ahmad Shah Watali), laying down that in applications for bail under the UAPA, ’courts must presume every allegation made in the First Information Report to be correct’.

It is only when the case come up for trial that the scrutiny of evidence is permissible. As Shah points out, this judgement has ’created a new doctrine’, because it dilutes the presumption of innocence – a basic principle in criminal law. Without a doubt, the impact of the judgement on the right to liberty is truly devastating, because it inhibits the courts from scrutinising the merits of the case against the accused made out by the prosecution, and thus the denial of bail becomes inevitable. Commenting pithily on the judgement, the legal scholar Gautam Bhatia wondered ’whether the UAPA actually requires the courts to become stenographers for the prosecution …’ (2022, p.7, emphasis added). It is not surprising, therefore, that nine of the BK-16 are still in custody, and only four, to date, are on regular bail, but only after their cases reached the Supreme Court (see Notes). Of the four who secured bail on merits, Anand Teltumbde is the only one who could secure this ’privilege’ through a High Court order, which the Supreme Court upheld later. Alpa Shah captures the uniqueness of this event colourfully by saying that Teltumbde’s lawyer ’managed to argue the merits of his case and miraculously the judges listened ’ (p.493, emphasis added).

If the right to liberty, even in the context of securing bail, depends on miracles, one wonders whether Article 21 has ceased to be in the judicial consciousness. The recent release on bail of Shoma Sen after six years of incarceration (on 5 April 2024) is perhaps the latest instance of a miracle. A Supreme Court bench granted her bail stating that it ’[did] not find prima facie commission or attempt to commit any terrorist act …’ under the UAPA (Express News Service 2024, p.8). Her case suggests that in present day India constitutional rights and freedoms lie dormant most of the time, and the writ of an authoritarian state is able to hold the polity to ransom.

In conclusion, Alpa Shah’s book on the incarceration of the BK-16 points to the enormous faultline between the contemporary Indian state and its citizens, who include the poorest and most disadvantaged people, especially the Adivasi and Dalit communities. As Stan Swamy’s report showed, their incarceration on false charges could run into thousands. And, as the Sarkeguda fake encounter showed, their lives could be extinguished in a flash. Above all, her material shows that the judiciary today, wittingly or unwittingly, is a facilitator in India’s descent into authoritarianism for failing to stand up against state repression. In this connection, the Adivasi rights activist Dayamani Barla made a strikingly relevant observation in a recent documentary made by Uma Chakravarti (2024). She said, ’If you are working for the welfare of the people, then you are jailed. That is how it is today’. Clearly implied here is that the state has a free pass to trample upon the rights of the poor and incarcerate human rights defenders, while the judiciary is a passive spectator. There is no better way to foreground this grim truth than by quoting one of Alpa Shah’s leading ’protagonists’ Sudha Bharadwaj:

Sometimes you’re a worker in an employer’s court, sometimes a villager in a company’s court, sometimes a woman in a man’s court, sometimes a people’s movement in a state’s court. The court isn’t your space … (p.123, emphasis added).

The book carries an excellent analytical index. However, I regret that the publishers decided to physically separate the notes from the main body of the book, requiring the reader to scan a QR code to access them. This is quite unacceptable from the standpoint of a serious reader of any book.

Notes

[1] They include the following, many of whom were professionals – as shown in the text. As all of them were involved in the lives of the marginalised, they could all be designated as activists. They are categorised by the year of their incarceration. (The Pune City Police arrested those listed under 2018; those listed under 2020 were arrested by the National Investigation Agency after the case was transferred to it by the central government.)

2018: Arun Ferreira, Mahesh Raut, Rona Wilson, Shoma Sen, Sudha Bharadwaj, Sudhir Dhawale, Surendra Gadling, Varavara Rao, and Vernon Gonsalves

2020: Anand Teltumbde, Gautam Navlakha, Hany Babu, Jyoti Jagtap, Ramesh Gaichor, Sagar Gorkhe, and Stan Swamy.

The following facts, at the time of writing this review, about the above-mentioned may be noted. Stan Swamy died in judicial custody on 5 July 2021; Sudha Bharadwaj is out on bail due to procedural errors in the filing of her case; Varavara Rao is on medical bail; Gautam Navlakha is under house arrest; finally, Anand Teltumbde, Vernon Gonsalves, Arun Ferreira, and Shoma Sen have been released on bail by the Supreme Court on merits. Thus, nine of the BK-16 (including Gautam Navlakha) continue to be in custody.

(Review Author: Anand Chakravarti, Former Professor of Sociology, University of Delhi)

References:

• Austin, Granville (1999), The Indian Constitution: Cornerstone of a Nation, Oxford University Press, New Delhi.
• Bhatia, Gautam (2022), ’How the UAPA is wrecking lives’, The Hindu, 7 April.
• Chakravarti, Uma (2024), ’Zameer’ (Conscience) – a documentary, Pension Pictures, New Delhi.
• Express News Service (2024), ’6 yrs after arrest, Shoma Sen gets bail from top court’, The Indian Express, 6 April.
• Shah, Alpa (2010), In the Shadows of the State: Indigenous Politics, Environmentalism and Insurgency in Jharkhand, India, Duke University Press, Durham, N.C. and London.
• Shah, Alpa (2020), Nightmarch: A Journey into India’s Naxal Heartlands (Paperback), HarperCollins Publishers, Gurugram.
• Shah, A.P. (2021), ’Darkness at noon, felled by the judiciary’, The Hindu, 8 July.