In his novel The Trial, Franz Kafka narrates the story of Josef K., who becomes the victim of an inhumane and cruel justice system. After being detained without cause, he is made to navigate a totalitarian system plagued with corruption and prejudice. Everyone who works in the system – the judges, police officers and advocates – is morally bankrupt and devoid of humanity. Justice becomes a privilege which remains out of reach for Josef K., as he is mysteriously murdered at the end of the novel.
In what is described as the Kafkaesque style, the novel talks about a failed system with compromised institutions and arbitrary state action taken at the whims of an authoritarian executive. However, it seems that Josef K. is not the only person trapped inside the system; along with him are many Indian activists, students, journalists and comedians. While all of them are at the receiving end of the same despotic regime, they face different absurdities. Student leader Umar Khalid faces a chargesheet of 11 lakh pages, while comedian Munawar Faruiqui faced prison time for a joke he never made. Father Stan Swamy was made to wait 20 days for a response on whether he could use a straw in jail, while Faisal Khan was arrested for preaching communal harmony.
The common genus that runs through the detention, trial and conviction of these people is the arbitrary state action that they face. In the chargesheets, FIRs and other prosecution documents, one hardly finds a proper application of mind and law. What one finds are frivolous charges under sections whose ingredients are far from met by actions of these individuals.
However, having grounds for arrest, no matter how illegitimate, has also become a privilege – a privilege which was not extended to the thousands of Kashmiris arrested under the Public Safety Act, which authorised their preventive detention. Such individuals have committed no crime. They are arrested on the grounds of suspicion, apprehension and subjective satisfaction of the executive.
As Josef K. finds himself in the middle of such a mess, he approaches the judicial system only to be disappointed at the collective failure of the institution to impart justice. While the executive enforces draconian policies and coercive action, the judiciary acts complicit by either evading scrutinising it or by actively enabling it. In recent times, courts in India seem to be doing the same. In June 2020, almost 13,000 habeas corpus pleas remained unheard in the Jammu and Kashmir high court for almost a year. Munawar Faruqi’s bail plea was rejected by the lower courts on improper grounds, and he had to languish in jail for a month before he was finally released on bail by the Supreme Court.
This practice of judicial evasion and complicity in arbitrary state action has contributed to what has been described as the “rise of the executive court”. The executive court not only upholds curtailment of civil liberties, but also crushes hopes of the citizens who look up to it as a custodian of civil rights.
What does one do then? To whom does one go? If all the institutions and “pillars of democracy” are complicit in enabling a witch-hunt against people who dared who speak up, where does one go to seek a remedy against those who are responsible for giving remedies? This reminds me of the couplet: “Mera qatil hi mera munsif hai, kya mere haq mein faisla dega? (My killer is himself my judge, how then will he decide in my favour?)”. The qatil of civil liberties isn’t just the officer who presses the charges, but also the judge who refuses to entertain the pleas of the victims. Right from the FIR to the conviction, one is made to climb an exhausting ladder where one meets different qatils at different steps.
This series of events lead to the Kafkaesque feeling of despair and hopelessness. When basic human rights are curtailed in such a manner and all the institutions remain complicit in one’s suffering, one can only feel astonished at the system which has trapped so many, and continues to trap so many, under charges which are either frivolous or unknown. The stories of the incarcerated are way deeper than the FIRs and chargesheets they’re printed on, for what we see on those is only a formal sanction provided to the witch-hunt.
I do not have a conclusion. I do not aim to ignite any false hope, for if this ended with a “don’t lose hope and have faith” paragraph, it would be unfair to those who have been rendered hopeless. It would be unfair to the boy who was arrested for going out to eat pizza with a girl. It would be unfair to the journalist who has spent more than two years in detention without a proper outcome of his case. It would be unfair to the hundreds of students who dared to speak up against authoritarian policies and are now languishing in jails. It would be unfair to the poet who spent more time in a hospital than in jail during the time he was detained. It would be unfair to thousands of detainees far away from home, lodged in prison cells in a foreign land.
It would be unfair to Josef K.
Instead, I wish to end by invoking the same feeling Kafka did in The Trial; of hopelessness and of anguish. If any change is to take place, it would be preceded by an acknowledgement of a broken justice system and a fractured executive that is constantly legitimising bureaucratic totalitarianism and paving the way for the transition of India to a Kafkaesque dystopia.
Therefore, it is imperative to stop and think. Think and acknowledge. Acknowledge and be anguished. Be anguished and speak. And if speaking up results in getting thrown in the same system as the people mentioned above, know that it was worth it – the cost of freedom will never be too much, and only too little, in front of a life of liberty and dignity.
Mohammad Zayaan is an undergraduate law student in Kashmir. You can find home on @zayawn and on Twitter @inquilaborator.
Featured image: Pariplab Chakraborty