India's 'extraordinary' laws need to be revoked, not revamped

Mahtab Alam
When it comes to the UAPA, National Security Act, Public Safety Act and the sedition law, the problem does not end at misuse.
The recent round of arrests and prolonged detention of several political leaders and activists under the law against sedition, the National Security Act (NSA), the Public Safety Act (PSA) and the Unlawful Activities (Prevention) Act (UAPA) have once again put the spotlight on these extraordinary laws.
Among the notable people charged under these laws are right to information activist and peasant leader from Assam Akhil Gogoi, Jawaharlal Nehru University research scholar and student activist Sharjeel Imam, medical doctor and activist Dr Kafeel Khan, former chief ministers of Jammu and Kashmir Omar Abdullah and Mehbooba Mufti, and former IAS topper turned political leader Shah Faesal.
One of the most surprising cases to have made this list is that against the authorities of a Muslim-managed school in Karnataka’s Bidar district. On January 26, the Bidar police registered a case of sedition against the principal and other authorities of a local school for allowing its students to stage a drama which allegedly portrayed Prime Minister Narendra Modi in poor light in connection with the Citizenship (Amendment) Act and National Register of Citizens.
On January 20, two women – the school principal and the mother of a Class 6 student who had allegedly said lines insulting Modi – were arrested. After spending more than two weeks in Jail, they were granted bail on Friday by a local court on a personal bond of Rs 1 lakh, with two sureties of the same amount. They have also been asked to cooperate with the investigation and appear before the investigating officer as and when called.
The cases against Omar Abdullah and Mehbooba Mufti are no less strange. As per the police dossiers, while Abdullah was booked because of his ability to “convince his electorate to vote in huge numbers” despite the separatists’ call for poll boycott, Mufti is charged for “her dangerous and insidious machinations and usurping profile and nature”. Faesal has been charged for his alleged “anti-government” social media posts and for forging an alliance with former MLA engineer Shiekh Abdul Rashid, an accused in a terror funding case.
Several other Kashmiri leaders have also been booked under the PSA for equally strange reasons. What is noteworthy is that this is not the first time that the PSA has been slapped in a similar manner. And interestingly enough, both Abdullah and Mufti have been known for using the PSA to target political opponents and stifle voices in the name of curbing militancy and terrorism in Kashmir during their respective regimes.
These cases have raised several questions about the use and misuse of these laws over the years. One wonders why despite their rampant misuse, nothing has been done so far.
The problem, however, does not stop at misuse. These extraordinary laws are problematic in their very design. They are written to be anti-people and to curb any form of dissent. A mere amendment would, therefore, not suffice. If one were to stop their misuse entirely, nothing short of striking them down from the law books would be acceptable.
For example, the law against sedition, which Mahatma Gandhi described as the “prince among the political sections of the Indian Penal Code (IPC) designed to suppress the liberty of the citizen”, was originally designed to curb the freedom of expression and speech during the colonial era. Even in independent and democratic India, it has been used by political dispensations for the same purpose. Despite the constant demand for striking it off the law books and mounting evidence of its misuse over the years, no government has shown any willingness to touch it.
Most unfortunately, even the courts, including the Supreme Court, have failed to act in this regard. Advocate Chitranshul Sinha in his book The Great Repression: The Story of Sedition in India draws our attention towards this matter. According to him, in a PIL filed in the apex court by the NGO Common Cause and Kudankulam activist S.P. Udayakumar, in which the prayer before the court was to lay down specific guidelines for sedition cases, the court missed the opportunity to set the record straight. He rightly points out that the Kedar Nath judgement “does not provide (guidelines) for pre-arrest requirements and compliances. Any person arrested for sedition will have to obtain bail, attend proceedings, make themselves present for investigations, etc. before chargesheet is filed or the case is closed.”
The stated purpose of the NSA is to prevent individuals from acting in a manner prejudicial to certain state objectives, including national security, public order and the maintenance of supplies and services essential to the community. And this very purpose gives the state and its agencies unlimited power with impunity to detain individuals for up to a year without charges, a trial or other rights that an accused is usually granted under the rule of law. No wonder then that the act is often referred to as the law of ‘no vakil, no appeal, no daleel (no lawyer, no appeal, no argument)’.
Even though Dr Kafeel Khan was granted bail by the court, him being charged under the NSA will now ensure that he will be in custody for as long as as the Uttar Pradesh government wants him to, as was also seen in the case of Bhim Army leader Chandra Sekhar Aazad two years ago. Aazad had to spend 15 months in jail, between June 2017 and September 2018, for no crime.
As far as the PSA is concerned, it is a “lawless law”, as Amnesty International put it a few years ago. Like the NSA, it bestows unbridled power on the state to detain someone without charge for a prolonged period. According to information obtained by Amnesty through RTI applications, just between March 2016 and August 2017, over 1,000 people were detained under the PSA.
Section 19 of the PSA is often used by the authorities to issue repeat detention orders, this keeping people in detention for prolonged periods. According to Section 19, “there shall be no bar to the making of a fresh order of detention against a person on the same facts as an earlier order of detention” where the earlier order of detention “is not legal on account of any technical defect” or where the order “has been revoked by reason of any apprehension, for avoiding any challenge that such order or its continuance is not legal on account of any technical defect”. This paves the way for further detention of the accused even if there is hardly any proof against them.
The UAPA was amended in 2004 and most provisions of the Prevention of Terrorism Act (POTA) were incorporated into it. In 2008, it was further amended and the most recent amendment was done in 2019. POTA was repealed because of its widespread use to target political opponents and dissidents by the state. However, the UAPA in its current form (barring one aspect – the admissibility of a confession before the police as evidence in court) is nothing but an advanced version of POTA. After the latest amendment, individuals can be declared terrorists and their properties seized even before their crime is proven in a court of law. These kind of provisions in the law makes it prone to misuse and give ruling parties the opportunity to fulfil their vested interests, as we have been witnessing.
What is noteworthy is that in most of these cases, the accused almost always end up being acquitted by the court. But by the time they are acquitted or discharged, their lives and careers have long been ruined, given their prolonged incarceration and persecution at the hands of the state.
These laws also serve another purpose – they have a chilling effect on other activists and ordinary people. The classic case of this is a recent example of over 50 people being charged with sedition for just raising slogans in support of Sharjeel Imam and demanding his release. Courtesy : The Wire