A journalist and an activist were detained for close to three months by Manipur State Police using a law which has no place in a democratic society. The specific law, the National Security Act, allows the government to detain anyone with little procedural safeguards. A Facebook post ridiculing the use of cow urine as an alleged medical remedy to COVID-19 is what led to the two individuals, a journalist and an activist, being arrested by the police. As silly as these two cases sound, there are two issues with the way the State has handled these which present a threat to free speech.
The first is the way in which the State treats the application of ordinary penal law, which is law meant to deal with ordinary crimes. When the two were arrested the first time, they were arrested under provisions of the “ordinary” Indian Penal Code. I refer to it as an “ordinary” law because it provides for provisions of bail and allows an accused to fairly present his case. This Code applies also to crimes such as theft, defamation and murder, and can be seen as a way in which the state deals with “conventional” crimes.
Shortly after their arrest and, as per norm, the two were released on bail by a trial court in Imphal. However, before being released from custody, they both received notices informing them that they were subsequently going to be detained under provisions of the National Security Act (NSA).
Now the NSA, enacted to originally deal with cases of terrorism and sedition, is a world of a difference from the Penal Code. For instance, a person accused under the NSA does not give them a right to be advised by a lawyer. In addition, it allows a person to be detained without a trial, because it presumes that an accused person is guilty. The decision of the State to use provisions of the NSA in these two cases, especially after having been set at liberty by a court, is an insult to the rule of law in a democratic society.
It also presents a disregard for the application of ordinary penal law, which it sees, in the government’s own words, as “not adequate” to deal with alleged criminal actions. The state’s actions are therefore not guided in the maintenance of law and order but by an urge to prevent dissent.
The urge of the state to stifle dissent using unlawful means is the second issue of this case. I say so because this is not the first time that Kishorechandra Wangkhem, the journalist who was detained, has been detained by the police under this Act. Following a Facebook post in 2018, he was arrested multiple times by state police under the Indian Penal Code. However, when a court released him on bail, the State chose to then use the NSA and keep him in detention.
While doing this, the State chose to disregard each safeguard a citizen is accorded. While on bail, the journalist was picked up by unidentified police personnel who refused to inform him of the grounds for his detention. In addition, the police refused to show him a copy of the statements he was alleged to have made. The State went to the extent of keeping him in detention even when he fell ill.
When the state police recently picked up Erendro Leichombam, an activist, from his home without a warrant, his aged mother was physically abused by police personnel when he was being taken into custody. Soon after he was charged under the NSA, he was assaulted by personnel while in detention. These actions demonstrate that the State, guided by its authoritarian tendencies, is not afraid to silence dissent using the harshest means possible.
In these two almost similar cases of detention under the NSA, Manipur has shown an unapologetic habit of using laws meant for the most severe crimes to target free speech. This is an extremely worrying trend to note, and the threats posed by it threatens the universally recognised right to speak freely without fear of being unfairly targeted. What does it say of democratically-elected governments which impose terrorism charges on dissenting individuals?
Following two separate orders to release the two individuals from NSA detention, the Supreme Court and the high court of Manipur will now respectively hear pleas filed by their families. The courts will need to go beyond the imposition of a penalty upon the Manipur government and reaffirm the democratic right of free speech. This would send a message to authoritarian leaders in the region and beyond who seek to misuse terrorism laws to stifle dissent using unlawful and arbitrary means.
A larger trend
The allegations of physical abuse while under police custody are certainly not new when it comes to Manipur. The Manipur State Police, along with the Assam Rifles and Indian army, have been accused of thousands of extra-judicial killings in Manipur under protection of the controversial Armed Forces Special Powers Act (AFSPA). These murders form part of the 1,528 instances of extra-judicial killings which are being documented in a case before the Supreme Court. We therefore understand that law enforcement agencies in the state have gotten away with far too much for too long, and these actions and subsequent state impunity are in contravention of Indian law and international human rights law.
Unfortunately, the application of extra-ordinary penal laws in Manipur is part of a trend developing in the wider region of North-East India as well as other parts of the country. We have seen the application of the Unlawful Activities Prevention Act, or UAPA, another extra-ordinary penal law, being applied against political activists in Assam.
In the case of Akhil Gogoi, who was arrested during the anti-Citizenship Amendment Act protests, serious allegations of torture while under detention of the National Investigation Agency have been raised. These include the detainee having to sleep on the floor in biting cold weather, and being pressured to join a right-wing party and its ideological organisation in exchange for liberty.
While advocating for the repeal of these archaic and undemocratic laws is necessary for the long run, we must continue to speak truth to power, be it through speech, cartoons, or memes.
Jade Lyngdoh is a Constitutional Law Honours candidate at National Law University, Jodhpur, and has research interests in human rights and free speech. Follow him on Twitter @jadelyngdoh_