The Sahayog affair

By Rajeev Dhavan

SAHAYOG IS an organisation working on `AIDS' education in the Kumaon Hills of Uttar Pradesh. In September 1999, it published a pamphlet called `AIDS aur Hum' (AIDS and us) which described sexual acts explicitly. It also portrayed, what it, perhaps wrongly, believed to be the licentious social sexual practices of the area. For seven months, nothing happened. Then, all hell broke loose. By April 20, 2000, fuelled by both politics and anger, Sahayog's offices in Almora and Jageshwar were attacked. Members of the Uttarakhand movement, who had themselves been victims of outrage, joined the merciless chorus of indictment. Little was done to protect Sahayog. Instead, 11 staff members and some trainees of Sahayog, who had nothing to do with the publication or its aftermath, were arrested - five for `breach of peace' and six more substantively for `obscene publications' and `public mischief'. After this, nothing was easy for Sahayog or its workers. The Sub-Divisional Magistrate increased the bail amounts for the breach-of-peace arrestees to make it more difficult for them to be `bound over' on their own recognisance. The Almora Bar Association announced that no one should represent the accused; and jeered at the four courageous lawyers who did so. On April 22, a show cause notice was issued to the organisation. An apology and withdrawal of the pamphlet by Sahayog on April 26 was of no avail - even though this was the equivalent of a self-imposed forfeiture order. Faced with this kind of pressure, on May 1, the application for bail was rejected for the alleged offenders. Then, needless public humiliation was added to the brazen denial of civil liberties. On May 4, the four men in judicial custody were handcuffed and paraded with medieval cruelty through the market along with the women.

Instead of being released the remaining six (including five staff and a visitor), who were accused of substantive offences, were remanded to judicial custody. High Court proceedings continue. But there was no respite for the social worker activists. The Union Minister, Mr. Murli Manohar Joshi, who comes from the Kumaon areas, spoke publicly and angrily against Sahayog and asked for strong measures to be taken against them. A supine administration obliged. On May 9, the National Security Act was invoked on Jasodhara Das Gupta (Secretary), Dr. Abhijit Das (Coordinator), Ms. Subita Shah and Mr. Surendra Dhapola (both Sahayog staff). All of a sudden, respected activists were treated as goondas, porn- pushing criminals and, to top it all, a security risk and threat to the nation - after being handcuffed, humiliated and jailed.

This sequence of events must give us pause. In 1996, the then Chief Justice of India, Mr. Venkatachalaiah, incisively observed that ``(t)he quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of its criminal law''. By this test, Mr. Joshi, the State of Uttar Pradesh, the Kumaon officials and the leaders of the Uttarakhand movement fail miserably. They have been uncivilised. Everything they have done is contrary to law on at least six major counts.

First, let us take handcuffing. In 1980, the Supreme Court (speaking through Mr. Justice Krishna Iyer) categorically prohibited handcuffing unless there was a clear and present danger of violence or escape. This was reiterated in several cases including a remarkable case from Assam in 1995. In 1996, the Supreme Court indicted police and judicial officers of Punjab and Madhya Pradesh of having violated its general directions on handcuffing. In the Sahayog case too, the police and the magistracy of Uttar Pradesh have violated civil liberties and committed contempt.

Second, the rule is `bail not jail'. In the `breach of peace' cases, it is difficult to comprehend why the Magistrate did not follow the routine procedure of releasing the detenus on their own recognisance. Instead, the surety amount was increased. There was little reason to deny bail to those accused of `obscenity' and `public mischief'. The Supreme Court decrees that bail is to be denied only if the accused might abscond, tamper with evidence or is accused of a serious offence. None of these conditions exist. The activists continue to languish in jail.

Third, the seven-month-old pamphlet on AIDS may have ruffled sensitivities, but the `breach of peace' was by the protesters who attacked Sahayog's premises, intimidated the staff and made them feel like hunted animals in a lynch-mob atmosphere in which neither the police nor the magistracy acted with fairness.

Fourth, the local Bar seems to have forgotten the long line of cases - including the Bihar Blinding's cases (1979), Khatri (1978) and later cases - which not only guarantee a right to legal services but repose a proactive duty in the state and providers of legal aid to ensure that legal services are available to all - especially to those who are arrested and incarcerated. For a Bar to deny such legal services, and jeer at the lawyers who did provide them, is in the worst traditions of civil liberties lawyering and violative of the Bar's `conduct of ethics' rules and its constitutional obligations.

Fifth the `obscenity' charges seem overwritten. Everything that is in bad taste and hurts sensitivities is not obscene. From at least 1951, there are several decisions of various High Courts which pay due attention to the need for not just medical education but also sexual education. In 1970, the Allahabad High Court stressed the importance of family planning and sexual education as along as it did not become pornographic.

The dividing line is delicate - even more so in Hindi and its colloquial variations (as is amply demonstrated by so many legal aid pamphlets on rape and sex offences). In the Sahayog case there was no calculated pandering to the prurient interest, no intent to hurt social sensitivities and no commercial exploitation of sex. On the contrary, there was an apologetic withdrawal of the pamphlet, precisely because its authors contritely agreed they had made a mistake in their use of language and in the description of local sexual relationships.

Sixth - and, this is the crowning insult to civil liberties - there was the preventive detention order under the National Security Act (NSA). The administration seems to have gone overboard to please Mr. Joshi, who thundered on this subject, and the members of the Uttarakhand movement, who have tried to make political capital out of these incidents. The NSA is meant for terrorists, smugglers and goondas. Even against them, it is to be sparingly used. Ironically, according to cases successfully argued by the Union Law Minister, Mr. Ram Jethmalani, preventive detention has a protective due process of recall and review which the U.P. authorities have not chosen to use.

In the Sahayog cases, the detentions must be cancelled. The activists released. The charges withdrawn. The peaceful and beautiful region of Kumaon is in ferment not because of Sahayog's pamphlet, but because of its prime political importance. The impending creation of the State of Uttarakhand, which is to be carved out of Uttar Pradesh, makes it a political prize. Apart from his ancestral links with the area, Mr. Joshi recognises this as a power base.

The leaders of the Uttarakhand movement are no less ambitious for profile and power. There is a considerable flexing of political muscle - no less from the BJP Governments in Lucknow and Delhi. The result is the scapegoating and humiliation of Sahayog which has gracefully withdrawn its publication and apologised. The Uttarakhand movement which were brutally treated by the administration in its struggles seems to have forgotten Brecht's evocative advice that those who fight for kindness must themselves be kind. They should strive in Sahayog's favour, not against them.

Every little blow to civil liberties hurts democracy. Every political misuse of power is despotic. Every activist who is needlessly jailed is a martyr. But, is this the shape of things to come in India?

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