Hon’ble Supreme Court Judge, Justice Dr. Dhananjaya Yeshwant Chandrachud said while addressing Indo-US Joint Summer Conference on Indo-US legal ties that “Criminal law, including Anti-terror legislations should not be “misused for quelling dissent.” He further added that “Deprivation of liberty for even a single day is one too many. We must always be mindful of the deeper systemic issues of our decisions.”
He goes on to say that “India & the USA share a constitutional relationship, respect for democracy, the rule of law, a rule-based international order, the espousal of the values of freedom, liberty, justice, and equality for all.” It’s common knowledge that a true democracy thrives on a fair and transparent system of governance and being. It naturally sees, during the course of its functioning, bouts of dissent but also takes on the responsibility to hear them duly. The constitution of India under Article 19, guarantees to its citizens, liberty or freedom of expression, and by extension, expressing dissent granted the same is within the ambit of the reasonable restrictions imposed on such liberty.
Security of state is one such restriction imposed on the liberty to express that a citizen possesses. Violence has always been one of the methods employed by those unsatisfied by the circumstances surrounding them to either bring satisfaction or to destroy that which seeds such dissatisfaction. Terrorism belongs to the category of such acts of violence that by the very nature of the act seeks to destroy whatever it is that stands on the route.
India, having been born from a messy discourse and being a diverse nation, has always been susceptible to politicized violence. It hence becomes imperative for such a nation to take measures to not only punish such violent acts but also to prevent such acts from happening to begin with. Originally, the inspiration drawn by such measures lies in the British era. That being said, the legislative measures taken by our state in this regard can be divided into 3 categories:
(1) Constitutional provisions authorizing the declaration of formal states of emergency and the use of special powers during those declared periods,
(2) Constitutional provisions authorizing preventive detention during non-emergency periods, and
(3) Substantive criminal laws, such as TADA, POTA, and UAPA, which define terrorism and other security-related offenses and establish special rules to adjudicate these offenses during non-emergency periods.
CONSTITUTIONAL PROVISIONS AUTHORISING FORMAL EMERGENCY
The Constitution under Article 352 authorizes the President to declare a national emergency in circumstances involving a grave threat to the security of India or any part of its territory on account of (1) war, (2) external aggression, or (3) internal disturbance or imminent danger of internal disturbance
The constitution under Articles 358 and 359 suspends the liberties guaranteed to the citizens under Article 19 including that of expression. The right to move any court to enforce Fundamental Rights during a National Emergency can also be taken away by an order. The President is also vested with the power of temporary law-making through ordinances in cases of emergencies while both houses are out of session.
The first proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA and was in force till January 1968 and the second proclamation of National Emergency was made in December 1971 in the wake of the attack by Pakistan.
CONSTITUTIONAL PROVISIONS AUTHORISING PREVENTIVE DETENTION
The Indian Constitution through Article 22 authorizes preventive detention during non-emergency periods in explicit terms subject to limited safeguards such as approval of an “Advisory Board” to extend the detention for more than 3 months.
The parliament under this authority can and has made laws for the execution of preventive detention. Currently, the Maintenance of Internal Security Act, 1971 is in force which was enacted post repealing Preventive Detention Act, 1950 in 1969 and has largely restored the provisions of the PDA.
SUBSTANTIVE CRIMINAL LAWS
When it comes to parliament-made laws, there are both – provisions enlisted in existing acts and separate legislations for the specific purpose of combating terrorist acts. The Indian Penal Code, 1860 is a substantive legislation that defines various crimes and prescribes punishment for such acts. Chapter VI of the act enumerates and punishes Offences against the State which include Waging of attempting to wage a War against the Government, Collecting arms with intention to wage a War, Sedition, and Committing Depredation on the territories at peace with India etc. Offences against Public Tranquillity have also been defined and punished under Chapter VIII.
Talking about separate legislations, pursuant to the authority, Parliament enacted the Unlawful Activities (Prevention) Act of 1967, which is the major legislation that affords the central government broad power to define and ban any association involved with any action “UNLAWFUL”, that intends to express or support any claim to secession or that “disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India” by “committing an act or by words, either spoken or written or by signs or by visible representation or otherwise,”.
The Act also defines a “TERRORIST ACT” under Section 15 as any act which intends to or is likely to threaten the unity, integrity, security economic security, or sovereignty of India or to strike terror in any section of the people by ways of using explosive or lethal substances hazardous to any person.
Two other major anti-terrorism laws that India enacted since 1980 – the Terrorist and Disruptive Activities (Prevention) Act, 1985, and the Prevention of Terrorism Act, 2002 were subsequently repealed. The repeal of POTA however was not complete.
Firstly, the repeal was not retroactive in nature, hence not applying to pending cases or other cases arising from incidents that occurred during the period in which the law was in effect. In addition, several of POTA’s provisions remain in effect even prospectively, since at the very moment POTA was repealed, those provisions were simultaneously re-enacted as amendments to UAPA.
The UAPA amendments eliminate POTA’s rules authorizing confessions to police officers, which, along with the rules governing bail and pre-trial investigations, were among the provisions in POTA that were most troubling as facilitating violations of the rights to be free from torture, cruel, inhuman treatment or punishment, and compelled self-incrimination.
Last week, we witnessed the death of the 84-year-old activist Stan Swamy, who was arrested under UAPA-in the Elgar Parishad case- last year due to health concerns. Amidst outrage on the above and other cases of arrests under UAPA making headlines, it becomes imperative to understand where does the balance lie? The Act has enabled the state to detain an individual prior to hearing if, under circumstances present, they apprehend terrorist activities from such an individual. Additionally, the offence has been tagged cognizable meaning that the right to bail is not available with the accused.
Putting the legislation aside briefly, the provisions related to sedition and criminal defamation have time and again been used to crush dissent. India is a mixture of cultures, languages, religions, faiths, and beliefs and such culmination more often than not sees itself as a victim to tension arising from ideological differences. In such situations, the importance of an anti-terrorism law is understood and appreciated. However, above the ideas that divide the nation, a state consists first and foremost of human beings, and the rights that they hold by virtue of them being human should not be surpassed by excessive use/misuse of provisions that have been employed in essence to protect them.
This article has been written by Ishita, IVth year.