Namrata Joshi
Intern, Constitutional Law Initiative
The guiding principles mentioned in the preamble of constitution have been
reduced to a mockery. Justice and liberty mentioned therein now seem a
distant dream. Though one can’t deny the need and importance of security
laws, one couldn’t agree more on the fact that time and again these acts have
been used to ransack people’s constitutional rights. And therefore has rightly
been called “DRACONIAN LAWS”.
There have been a barter of rights and safety from the very old days, and ever
since constitutional rights or fundamental rights are being subjugated in the
name of national security. During Colonial era many Indian leaders like Bal
Gangadhar Tilak , Mahatma Gandhi and others, were arrested for sedition as
they were purportedly a threat to national security and were harming the
integrity and sovereignty of India as stated by British officials. This a classic
example which shows how security laws were used to supress the voices that
stood against the British Barbarism. One may think that supressing the Dissent
by using security laws is a thing of British India and is no more applicable to
new democratic India, but sadly this isn’t the case, use of MISA (Maintenance
of safety act 1971) to arrest leaders from opposition parties during emergency
in 1975 & the rampant arrest of 70,000 people under TADA (Terrorist and
Disruptive Activities,1987) within just 10 years, are only handful of instances
which depicts how security laws are doing more harm than the good. What
makes these acts so powerful? is probably the only question that crosses one’s
mind.
Well all these security laws deviates from the normal trial procedure and
endows uncontrollable powers to the police and ruling govt.
NSA(National Security Act, 1980), UAPA(Unlawful Activities Prevention Act,
1967) are amongst the few laws that are currently functional in India. These
laws were made for the specific purposes but are still in continuance even
when the purpose they sought is achieved.
In 1980, Indra Gandhi led congress govt brought the National Security Act,
1980, this act gave power to centre and state govt by which they can detain
and restrict personal liberty of an individual in the interest national security
and public order. A person can be confined for a maximum period of 12
months and this can be extended on the discovery of fresh evidences. What
makes this act more problematic is the abrogation of basic rights like Right to
Be Informed (as given in Section 50 of Crpc, 1973)& Right to Consult a Legal
Practitioner (Art 22(1) of Indian constitution). The biggest criticism of this act is
unavailability of data of arrested people as no FIRs are registered.
There is plethora of cases that shows the whimsical use of this act to crush the
voice of dissent. Fake charges are often levelled against lawyers, journalists,
activists or members from opposition to make them rot in jail for months,
party in power resort to this act for punishing those who raise voice against the
party. In 2020, Dr Kafeel Khan was detained for nine months, similarly a
journalist and an activist from Manipur were detained for 45 days in 2021.
There are many such cases that fell flat and no compensation or penalty was
awarded. This clearly shows how fundamental rights like Right to life and
liberty under article 21 & freedom of speech under article 19 are being
violated by the use of uncontrolled arbitrary power. And thus it can rightly be
said that the Constitutional guarantee of protection of a person’s fundamental
rights is a big hoax played with Indian citizens.
Another such swingeing act is Unlawful Activities Prevention Act, 1967. In the
year 1963, the 16th constitutional Amendment Act was enacted that
empowered the parliament to impose reasonable restrictions by due process
of law on Freedom of Speech & Expression, Right to Assemble Peacefully, Right
to form Unions and Associations, in the interest of Sovereignty & Integrity of
India. Based on this amendment UAPA was brought in 1967, to counter the
secessionist tendencies. The then political parties opposed the enactment of
UAPA on the grounds that it will supress the dissent and can be used to
prosecute the opponents, and with the passage of time this fear has definitely
turned into reality.
Initially under this act the govt had the power to ban any association by
declaring it as ‘unlawful’ and has to specify grounds for its ban, unlawful
activities here meant was the acts intended to disrupt the country’s
sovereignty, territorial integrity & cause disaffection against India. But over the
years UAPA has undergone through many amendments.
Amendment of 2004 - the definition of terrorist act and terrorist organisation
were included under unlawful activity, the government could now notify
organisations as “terrorist organisations” without a trial or requirement to
show evidence.
Amendment of 2008- here special procedures were inserted for persons
accused of terrorism related offences, which included maximum period in
police custody(i.e. 30 days), incarceration without a chargesheet (i.e. 180
days only on the ground of proceeding investigation) and restrictions on bail
(courts prima facie opinion) in Section 43D, further as per 43B the police can
take its time before informing the accused the grounds of his arrest, under 43E the court will assume the presumption of offence unless contrary is
proved.
Amendment of 2019-by this amendment the govt is now empowered to
declare not only the organisations but also individuals as terrorists under
section 35(2), & that too without trial and evidences.
All these amendments have loaded UAPA with more unchecked powers has
made it more stringent, in the present scenario any person can easily be
arrested for months, under the garb of charges like causing disaffection against
the state and questioning the national integrity. The Act has a vague definition
of terrorism that encompasses a wide range of non-violent political activity,
including political protest.
The unbridled arrest by govt, of Journalists, Students, Human Rights activist, &
Lawyers, depict the brazen misuse of this act. The spike of arrest cases shows
that individuals are being plainly charged for using their fundamental right of
speech and expression for showing difference of opinion on certain policies
and acts of govt.
However this is not the actual problem the actual problem lies in the post
arrest procedure, wherein almost in every case a person charged under UAPA
is detained for 180 days (till the time chargesheet is filed) or more as there are
only bleak chances of getting bail because the general rule here is guilty until
proven innocent. This causes civil death of a person, his Right to Life and
Liberty are curtailed and by branding him as terrorist his Right to Live a
Dignified life is also lost. Moreover the procrastination of trial makes accused
crumble in jail for years.
The death of an 85 year old man Father Stan Swamy in jail after 3 years of his
arrest, who was waiting for the trial proceedings to start, shows the broken
criminal justice system and gross human rights violation. Justice AP Shah on
this incident said “Why is the political establishment, and the police, so
emboldened to pursue cases under UAPA against individuals like Fr. Swamy? 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. It is perplexing
when, on the one hand, the Chief Justice of India grandiloquently states that
personal liberties and fundamental rights must be protected, and courts do
precisely the opposite”. And one certainly couldn’t agree more with him.
Similarly Sudha Bharadwaj, Varavara Rao and 13 others languishing in jail from
last 3 years are still waiting for their trial to start in Koregaon case. According
to NCRB (National Crime Report Bureau), from 2016 to 2019 the conviction
rate of people arrested under this act was 2%, the pendency rate at
investigation stage was 83% and at the trial stage it was 95.5%, this data
truthfully reveals the circumvention of Right to Speedy Trial.
Supreme court’s judgement in Union of India v K A Najeeb in 2021 is a
welcome decision, the Court held that “It is thus clear to us that the presence
of statutory restrictions like Section 43-D(5) of UAPA per-se does not oust the
ability of Constitutional Courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed, both the restrictions under a Statue as well as the
powers exercisable under Constitutional Jurisdiction can be well harmonised.
Whereas at commencement of proceedings, Courts are expected to appreciate
the legislative policy against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach
would safeguard against the possibility of provisions like Section 43-D(5) of
UAPA being used as the sole metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.” (MANU/SC/0046/2021)
Although this judgement definitely shows the ray of hope but is not sufficient
enough. There are still many flaws that need to be addressed. There is a need
of reforming several provisions under various laws to bring them in sync with
the constitutional rights instead of countering them. The essence of democracy
is dissent and therefore can’t be crushed by such laws. In any circumstances
Bail should be the rule not jail. Such laws cannot be used as weapon under the
guise of shield.