he jailing of Mohammed Zubair is the latest in a line of miscarriages of justice India’s government is inflicting on its citizens. I say India’s government because though law and order is a state subject, it is the Union government’s agencies under Amit Shah that have been misusing its vast power to destroy the lives of citizens without trial and without conviction.
Zubair, the brilliant fact-checker and founder of AltNews, an alternative news organ that has roiled the pliant media space, is in jail on such a ludicrous charge that it is not worth reproducing. There is no real complainant against Zubair except an anonymous individual who has forwarded a tweet, and the BJP has jailed Zubair and wants to keep him in custody though the tweet he has been jailed for is visible. The government has sent police to his house and ‘seized’ his property for no reason. Why is it doing all this? Of course the intent is to harass and humiliate and terrorise individuals. Zubair is the person who dug out the BJP spokeswoman’s abuse of a religious figure, which led to the government having to eat its words. This current spell of action is retribution and vengeance by our government against a fellow citizen.
The legal scholar Faizan Mustafa has noted that “since the promise of criminal law as an instrument of safety is matched only by its power to destroy, guarantees of due process were accordingly incorporated in the criminal procedure so that every accused person gets a fair trial.”
In India the presumption of innocence has been tossed out and replaced with the assumption of guilt. This is why jail is first and everything else later if at all. There was no reason to jail Zubair, just as there was no reason to jail Aryan Khan, on whom no drug or evidence was found. There was no reason to jail Teesta Setalvad, Rhea Chakraborty or Nawab Malik either, other than to make a circus out of the arrests and to punish people using the enormous and disproportionate power that the State holds over individuals.
In the criminal justice system, the State holds all the cards. The prosecution, the police, the courtroom and even the judge come from the State. The accused is alone. This is why justice systems have safeguards in favour of the accused and against the State. That is why we say “innocent until proven guilty” and that is why the burden of proving criminal activity is on the State.
India has reversed that principle on several laws and this is not just under the BJP. The laws of UAPA (on terrorism), NDPS (for narcotics), PMLA (for money laundering) and even on citizenship (the NRC of Assam) push the burden of proof on the individual. Many harsh state laws, such as Gujarat’s GUJCOCA (on organised crime) make the condition of getting bail so difficult as to be near impossible. But even without these laws, India is piling the burden onto the individual as we can see in the case of Zubair and the State is enthusiastic about using its destructive power. This is dangerous and the reckless State which the judiciary cannot contain is doing great damage.
The interest of the State is not in prosecuting, as we can see in the cases of the celebrities who were jailed and denied bail for weeks. Once they secure bail, the government usually loses interest and the case drifts. This is not about the rule of law or the upholding of Constitution. This is about how to harass someone and keep them in jail in the first instance. There are many who are enjoying the fact that activists like Setalvad and journalists like Zubair are in jail without being convicted. These people should realise that there is no benefit to India as a constitutional democracy or modern State from such actions. The world sees this angry state in India wreaking vengeance on individuals with a negative view. Our journey towards becoming a developed and prosperous nation becomes more difficult when the destructive power of the law is misused in the way that it is being done now.
I notice that I have not even once here referred to the positive qualities that Mohammed Zubair and his work have brought to our nation. He is a genuine hero who in another nation would be honoured for having done the sort of work he has done along with his partner Pratik Sinha. It is a sad reflection of our times that such a contribution is not only disregarded by the State and large parts of society but held in contempt and with hatred. This is New India, where our heroes and heroines are vilified and jailed by a State intent on damaging its own people.