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India: A Security State

The Unlawful Activities (Prevention) Amendment Act of 2008 and the National Investigation Agency Act of 2008 form part of a series of laws that go back nearly a quarter century.

COMMENTARYEconomic & Political Weekly EPW april 4, 2009 vol xliv no 1413India: A Security StateA G NooraniThe Unlawful Activities (Prevention) Amendment Act of 2008 and the National Investigation Agency Act of 2008 form part of a series of laws that go back nearly a quarter century.It is fundamental that the great powers of Congress to conduct war and to regulate the Nation’s foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process un-der the gravest of emergencies has existed throughout our constitutional history,for it is then, under the pressing exigencies of cri-sis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action(Kennedy vs Mendoza-Martinez (1963) 372US 144 at 164) (emphasis added).India has not made any effort to resist that temptation ever since terrorism reared its head in Punjab. The Un-lawful Activities (Prevention) Amend-ment Act, 2008 and its twin theNational Investigation Agency Act, 2008, both enacted hastily in the wake of 26/11, mustbe analysed carefully on their own merits. But they form part of a series that began nearly a quarter century ago with the Terrorist and Disruptive Acti-vities (Prevention) Act, 1985 (TADA). The trees must be seen for what they are. But the wood in which they stand must not be overlooked.TADA lapsed but was re-enacted on 24 May 1987. It was amended in 1993 and again thereafter but was allowed to lapse on 23 May 1995. The Prevention of Terror-ism Act (POTA) was enacted in 2002, only by a joint session of Parliament on 26 March 2002, since the Rajya Sabha had rejected it on 21 March 2002 by 113 votes to 98. In the joint session 425 voted in its favour and 296 against it. POTA was repealed in 2004 and replaced by the Unlawful Activities (Prevention) Amend-ment Act, 2004.The Supreme Court upheld the con-stitutional validity of TADA (Kartar Singh vs State of Punjab (1994) 3SCC 569); the Armed Forces (Special Powers) Act, 1958 (Naga People’s Movement of Human Rights vs Union of India (1998) 2SCC 109) andPOTA (People’s Union for Civil Liberties & Anr vs Union of India; WP No 389 of 2002),on 16 December 2003. On past form, the two Acts of 2008 will also beupheld.Sardar Patel’s ObservationsWe must ask ourselves in all honesty. Pre-cisely what have these laws achieved? Sardar Vallabhbhai Patel has now become a mascot for advocates of the “hard state”. His observations as union home minister when he introduced and got passed the Preventive Detention Bill are very perti-nent. Both were done in one single day, the Sunday of 25 February 1950. The “Iron Man” said, he had spent two sleepless nights over the bill and moved it only because he felt, in the conditions of February 1950, that he had no other option. There were less sensi-tive people who came after him.Patel said: “When law is flouted and offences are committed, ordinarily there is the criminal law which is put into force”. As we know, preventive detention laws are being abused to deal with crime. What Patel had in mind was something different though opinions will differ on whether even that justifies preventive detention. “But where the very basis of law is sought to be undermined and attempts are made…”. He meant sheer subversion. But Patel was conscious of the infirmities of a hurriedly drafted bill. He said, “It requires to be closely examined whether a better substitute of a more or less permanent nature based on specific principles can be brought in or not”. The Act became “permanent” without the close examination Patel envisaged and without any “specific principles” being enunciated to serve as a check on power.The Preventive Detention Act, 1950 was copied blindly in the Maintenance of Internal Security Act, 1971 (MISA), and the National Security Act, 1980 because MISA had become a hated word during the Emergency.Despite the Janata Party’s election pledge (1977) to “repeal MISA”, Charan Singh, the home minister, and, even more so, Shanti Bhushan, the law minister, were enthusiastic about making preventive detention part of the ordinary law of the land. In December 1977, the government sought to insert a new chapter VIII-A to enable the central and state governments and even the district magistrate and com-missioner of police to detain a person without trial on the grounds not only of A G Noorani is a well-known lawyer, scholar and political commentator.
COMMENTARYapril 4, 2009 vol xliv no 14 EPW Economic & Political Weekly14security of state but also “the maintenance of public order”. Have TADA and other repressive laws helped us to curb terror-ism in Punjab and in Kashmir?True,TADA, POTA and the Act of 2008 are penal laws; but in effect charges are slapped, persons put in jail, bail denied and acquittals follow. It is preventive de-tention. In Britain even in the worst days of unrest in Northern Ireland, jurists of the highest eminence were asked to review the operation of emergency laws. We have had no such review.In Northern Ireland detention without trial was introduced only on 9 August 1971, three years after the outbreak of mil-itancy. It was abandoned four years later on 5 December 1975.It has not been widely noted that the Amendment Act of 2008 only builds upon the Unlawful Activities (Prevention) (Amend-ment) Act, 2004. It repealedPOTA but retained its structure. The pass was sold in 2004. It discarded an obnoxious provision in POTA which made confessions to the police admissible in evidence. But the Act of 2004altered the parent Act of 1967 for the worse. The Act of 2008 aggravates an already bad situation.Worse than POTAIn two respects the 2004 Act is worse than POTA. It gives a carte blanche to the prose-cution to tender against the accused “evi-dence collected through the interception of wire, electronic or oral communication un-der the provisions of the Indian Telegraph Act, 1885 or the Information Technology Act, 2000 or any other law”. Section 46 of the Act makes all this “admissible as evi-dence”. No safeguard worth the name is provided. The one that does find mention in one proviso is an insult to intelligence. The accused must be furnished with a copy of the order of the “competent authority” which directed the interception, at least 10 days before the trial commences. Not the transcript of the interception, only the order. The next proviso wipes out even this illusory safeguard by empowering the judge to waive it if he feels that it was not possible to furnish the order and the accused will not be prejudiced thereby.Contrast this withPOTA. It had an entireChapter (V) containing 13 sections (Sections36-48) which contained at least some safeguards. The police was required to obtain in advance, albeit from an official, permission for the interception, giving grounds in support of its applica-tion. A copy of the order was to be submit-ted within a week to a review committee, set up under Section 60, for its approval. The government was obliged to present to Parliament an annual report on the inter-ceptions. The 2004 Bill drops all these provisions although they do not hamper the police of the prosecution.Also dropped is Section 58 of POTA which made it an offence if a police officer “exercises powers corruptly or malicious-ly, knowing that there are no reasonable grounds for proceeding under this Act”. Why was this been deleted?In respect of terrorist bodies also the framework of POTA is retained in the Act of 2004. POTA listed 25 of them while the Act listed 32 in schedule I. They stood banned as “terrorist organisation”. Others could be added. It is for the organisation to apply to the central government for its removal from the list. If the government refuses, it must refer the case to a review committee within a month (Sections 35 and 36).The Committee cannot review the mat-ter as a court of appeal on the evidence as to the facts; but, only as a high court exer-cising its writ powers on errors of law. It will be headed by a chairman who could be a retired high court judge handpicked by the government. Besides him, it could likewise handpick “such other members not exceeding three and possessing such qualifications as may be prescribed” by the government (Section 37). This is iden-tical to Sections 18, 19 and 60 of POTA.These provisions are utterly unconstitu-tional. They violate the fundamental right to freedom of association guaranteed by Article 19(1)(c) of the Constitution as laid down inState of Madras vs V G Row (AIR 1952 SC 196). A constitutional bench of five judges unanimously struck down as unconstitutional a ban on an organisation because there was no provision for an in-dependent judicial inquiry. Like the review committee of POTA and the Act, there was an advisory board only. It was held to be no safeguard.The law impugned in that case re-quired the government to place before an advisory board constituted by it a copy of thenotification and of the representa-tions, if any, received before such expiry, and the board was to consider the materi-als placed before it, after calling for such further information that it deemed neces-sary from the state government or from any office-bearer or member of the associ-ation concerned or any other person, and only then, submits its report to the govern-ment. If it was found by the Board that there was no sufficient cause for the issue of the notification in respect of the associ-ation concerned, the government was required to cancel the notification.The Supreme Court held thatthe right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, politi-cal and economic fields, that the vesting of authority in the executive government to impose restrictions on such right, without al-lowing the grounds of such impositions, both in their factual and legal aspects to be duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into ac-count in judging the reasonableness of the restrictions imposed by Section 15(2)(b) on the exercise of the fundamental right under Article 19(1)(c) for, no summary and what is bound to be a largely one-sided review by an advisory board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry.The formula of subjective satisfaction of the government or of its officers, with an advi-sory board thrown in to review the materials on which the government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this court upheld in Gopalan’s case, depriva-tion of personal liberty by such means, but that was because the Constitution itself sanctions laws providing for preven-tive detention, as to which no question of reasonableness could arise in view of the language of Article 21.The Act of 1967 itself sets up a tribunal to review bans on “unlawful associations”. The core of the Act of 2004 and of the Act of 2008 which relates to terrorist bodies is patently unconstitutional.UPA’s 2004 AmendmentsThe Act of 2004 amended the Unlawful Activities (Prevention) Act, 1967 which
COMMENTARYEconomic & Political Weekly EPW april 4, 2009 vol xliv no 1415has been used to ban secessionist and terrorist organisation. It also empowers the centre to ban as an “unlawful associ-ation” any outfit that spreads group hatred which is punishable under Sec-tions 153-A and 153-B of the Penal Code. Why this behaviour is not included in the definition of “unlawful activity” which remains confined to secessionism, is inexplicable.That former union home minister L K Advani and his colleague law minister Arun Jaitley dropped that ingredient in POTA is understandable. That Shivraj Patil’s Act also dropped that very ingredi-ent is significant. The omission is deliber-ate. Section 7 of his Act which inserts the definition of “a terrorist act” as Section 15 of the Act of 1967, adds the word “in any foreign territory” after the words “strike terror in the people or any section of the people in India”. No amends are made in the Act of 2008. In illiberality there is nothing to choose between L K Advani and Shivraj Patil.The flaws which the Act 2008 adds to the Act of 2004 have been widely noted. Ravi Nair’s critique (EPW, 24 January 2009), as one might expect, defies im-provement. The revised definition of “terrorist act” dilutes, if not deletes, the requirement of mens rea, the guilty mind. The powers of arrest have been widened.Section 12 inserts a new provision in the main Act of 1967. It is Section 43F which gives unfettered powers to the police to ask anybody to furnish information in his possession “in relation” to an offence un-der the Act “on points or matters” where he has reason to believe it “will be useful for or relevant to the purpose of the Act”. The offence of failure to provide that information is triable summarily and attracts punishment with imprisonment which may extend to three years. The demand need not be made in writing. Journalists are not exempt from this sweep-ing provision.Both, the Acts of 2004 and 2008, are permanently inscribed on the statute book. TADA andPOTA had fixed terms. While agitating against the provisions of the Act of 2008, the immediate wrong, its parent of 2004 must not be ignored nor the grandparent of 1967. What we need is a small group of earnest persons who, shunning publicity, quietly do re-search on this law, drawing on foreign studies, and publish a critique to alert public opinion. Precisely what advan-tages have the Acts of 1967, 2002 and 2004 provided to the detection and prevention of crime?Remembering Thingnam Kishan SinghTilottoma MisraThis is a tribute to Thingnam Kishan Singh, who is the latest victim of a series of killings perpetrated by militants as well as by the official counter-insurgency forces in Manipur. His death has brought thousands of people, especially mothers into the street for protests against the mass killings. His voice of social commitment is echoed in their protest.Let me begin by recreating three scenes, one from a play, another from the pages of a diary and the third from a recent newspaper report, all are eerily similar and related to the trau-matic experiences of the women from north-east India, who are looking on help-lessly at the total collapse of the govern-ment machinery that should have ensured the protection of their loved ones. Scene 1Four Manipuri mothers with babies tied on their backs, sing lullabies and light lamps on top of the hills to bring back peace to their devastated land. Some of the lines they sing are: In the land shredded to pieces,Sinking with each movementNo one is allowed to speak,Even if they can speak.No one is allowed to walk,Even if they have feet....The humans, living without souls, have turned into black oak trees on the hillside after the wildfire, unable to express their pent-up sorrows with heartrending wails.– From Ratan Thiyam’s play Nine Hills, One Valley.1Scene 2So, armed with a tirpal to sit on, and a few placards proclaiming our intentions and requests, six of us, all women, set out for Bongaon,on a rickety jeep of a well-wisher…The few odd people around the charialilooked at us, as we spread out our tirpal under the shade of a tree, and dis-played our placards. These were simple and to the point – “Where is Sanjoy?” “Return him back safely. ‘We want peace’. We could see people glancing, almost surreptitiously at them, almost as if they were aware of the purpose of our visit, yet did not want to ac-knowledge the fact…Yet, strangely enough, not a single person came to talk to us” – From Sumita Ghose’s account inSanjoy’s Assam.2Scene 3On 17 February 2009, Manipuri women staged a sit-in demonstration on the roads of Imphal in protest against the killing of Thingnam Kishan Singh and two others. Romita Devi, the widow of Kishan said, My husband left home along with five others in the office vehicle to attend a meeting on Friday morning. He was supposed to return on Saturday. We saw his body being brought Tilottoma Misra ( is a writer and social analyst based in Guwahati.

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