Insecurity from security laws

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.

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