Mrinal Sharma, Amnesty International India
The criminal justice system loses credibility when people are detained for no good reason. In India, this happens frequently under many laws, where journalists, human rights defenders, lawyers, and students are arrested just for being critical of the government.
There are many laws in India that are problematic and need to be repealed immediately. Here are four Indian laws, in particular, that should have never existed, let alone be used to stifle dissent and free speech in the country.
1) UNLAWFUL ACTIVITIES (PREVENTION) ACT (UAPA), 1967
Advertised as a counter-terrorism law, the UAPA has created a convenient system of impunity. Enacted in 1967, but amended multiple times, it is used as a weapon by governments to concentrate unlimited power and attribute criminality to any individual, group or action without restraint.
- So what exactly constitutes as terrorism?
According to the legislation, any ’unlawful activity’ can be a terrorist act. This vague definition allows the government wide discretion in applying the law as it sees fit. For instance, various forms of legitimate public protests against government excesses or inactions over the years have been portrayed as terrorist activities under this legislation.
- How long can a person be detained under the legislation without charge?
Unlike the regular criminal laws of India, people can be held in detention without charge for up to 180 days or even more under the UAPA, a duration exceeding international standards.
- What does the Act primarily criminalise?
Until 2019, only membership to both unlawful associations and terrorist organisations was a crime under UAPA. This was challenged in a series of cases before the Supreme Court of India, which stated that criminalisation of mere membership of an organisation constitutes an unreasonable restriction on the right to freedom of association, until such membership leads to or incites violence.
In July 2019, in an unprecedented turn of events, the ambit of UAPA was expanded. It was amended allowing the government to designate an individual as a terrorist without trial. Besides being in absolute violation of international human rights law and the Constitution of India, this amendment opened the floodgate to further harassment of human rights defenders and activists.
- Why should UAPA be repealed?
UAPA has become a tool for the governments to keep the accused in jail for prolonged period of time. According to the National Crime Record Bureau, in 2018, over 93% of cases under UAPA were pending before the courts whereas the conviction rate was only 27%. This indicates that anti-terror trials rarely result in a conviction. Add to this, the strict bail provisions under UAPA and slow investigative process, release during trial is virtually impossible, creating a convenient setting for illegal detention and torture.
In 1998, 18-year old Mohammed Aamir Khan was arrested under UAPA only to be acquitted 14 years later, as his case drudged through the courts. Upon release, Aamir recounted torture at the hands of police.
Touted as a counter-terrorism law falling within the realm of the criminal justice system, UAPA is more allied with the concept of preventive detention.
Notable people who have been arrested under UAPA:
Safoora Zargar: 27-year-old Safoora Zargar a research scholar at Jamia Millia University, activist and organiser, who was three months pregnant at the time of her arrest, is alleged by the Delhi police of being a key ‘conspirator in the Delhi riots that took place in February. Before the riots broke out in Delhi, Safoora organized peaceful protests against the bigoted Citizenship (Amendment) Act that was enacted by the Government of India in December, 2019.
Bhima Koregaon 11: Activists Gautam Navlakha and Anand Teltumbde were arrested by India’s premier investigative agency, the National Investigative Agency (NIA) on 14 April 2020, and charged under various provisions of the Indian Penal Code along with UAPA for their involvement in the 2018 Bhima Koregaon riots. These arrests appear to be politically motivated and relate to the massive crackdown on human rights defenders in 2018.
Section 124A of the Indian Penal Code, 1860 which defines the offence of “sedition”, is a colonial-era relic. It was enacted by the British to repress India’s independence struggle.
Mahatma Gandhi, who was imprisoned under the law, called it “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.”
- What does it criminalise?
This law prohibits any signs, visible representations, or words, spoken or written, that can cause “hatred or contempt, or excite or attempt to excite disaffection” towards the government. However, according to the Indian Courts, an important criteria for any form of expression to be considered as ‘seditious’, is that the expression must involve incitement to imminent violence. Despite this important ruling, sedition has always been used to arrest journalists, activists and human rights defenders who simply express critical views.
- How long can a person be sentenced under sedition?
The punishment for the offence of sedition extends up to life imprisonment, and the charge is both non-bailable and cognizable.
- Why should Section 124A be repealed?
Along with UAPA, the sedition law is also excessively vague and broad, making it an easy tool to stifle dissent and debate. There is no good way to apply Section 124A. It does not comply with international human rights law. It violates the right to freedom of expression under the Indian Constitution. And it goes against India’s tradition of tolerance.
The charges of sedition also rarely result in conviction. Since 2016, only seven cases have led to conviction. The rest either resulted in discharge or acquittal demonstrating that sedition is primarily used to harass and intimidate those who speak truth to power.
Freedom of speech or expression, applies to ideas of all kinds, including those that may be deeply offensive to some. While international law protects free speech, there are instances where speech can legitimately restricted under the same law – such as when it violates the rights of others, or, advocates hatred and incites discrimination or violence.
However, any restrictions on freedom of expression must be provided by law, protect certain public interests or the rights of others and, be clearly necessary for that purpose. The rampant application of Section 124A by the police does not fulfil this criteria.
Notable people to be accused of Sedition:
In 2019, P A Ranjith, a film maker and Dalit rights activist, Hard Kaur, a rapper, and Shehla Rashid, a Kashmiri politician and activist were amongst many others who were slapped with sedition charges for criticizing the government. On 7 June 2019, journalist Prashant Kanojia was arrested for sedition in the capital, New Delhi, after he posted social media content criticizing Uttar Pradesh’s Chief Minister. On 12 June 2019, the Supreme Court released him on bail but the charges against him remain.
On 3 October 2019, 49 renowned celebrities were charged with sedition for writing an open letter to Prime Minister Narendra Modi urging him to take meaningful action against hate crimes. In their letter, they had cited government and other independent data to highlight the rise in hate crimes and decline in their convictions.
In 2020, the Karnataka police arrested Amulya Leona, a student for allegedly saying “Be it any country, Zindabad to all” and “Pakistan Zindabad” during an anti-CAA protest. She has spent more than two months in jail.
3) JAMMU & KASHMIR PUBLIC SAFETY ACT (PSA), 1978
PSA is a ‘lawless law’, which has effectively circumvented the criminal justice system in Jammu and Kashmir.
- What is the ambit of the legislation?
The legislation allows administrative detention in Jammu & Kashmir which means a person can be detained without charge or trial.
- How long can a person be detained under PSA?
A person can either be detained for up to two years “in the case of persons acting in any manner prejudicial to the security of the State,” or for up to one year where “any person is acting in any manner prejudicial to the maintenance of public order”.
- Why should PSA be repealed?
The PSA, which was ostensibly introduced as an exceptional measure to detain people who pose an extreme and imminent danger to security, continues to be used as an alternative to the criminal justice system. Authorities use the PSA to detain people suspected of criminal offences against whom they do not have sufficient admissible evidence, or to detain people who should not have been arrested at all. In doing so, they violate not just the right of detainees to a fair trial, but also the right of victims of crimes to justice.
Under the guise of “security”, the authorities in Jammu & Kashmir have continued to use the PSA in a manner that furthers human rights violations: from detaining children to passing PSA orders without due diligence and on vague/general grounds, ignoring the limited safeguards under the Act to subjecting individuals to “revolving-door detentions”, and using the PSA to prevent release on bail and undermine the criminal justice system.
Amnesty International India has documented several instances where executive authorities have ordered the detention of minors, even when presented with evidence of their true age.
The text of the PSA continues to violate several of India’s obligations under international human rights law, including respecting detainees’ fair trial rights to be promptly informed of the reasons for their arrest, to judicial review of the detention, to be represented by counsel of their choice, and to remedy for abuses.
Further, regressive amendments to the Act in 2018 have also led to detainees being held in prisons far from their homes, in violation of international human rights standards. Detainees are often not provided all relevant materials regarding their detention, and a shroud of secrecy surrounds the functioning of the Advisory Board, which is mandated to review the cases of administrative detention under the PSA. Unlawful detention and torture and other ill-treatment also continue to be enabled by the PSA.
While the J&K High Court routinely quashes detention orders which fail to comply with procedural safeguards, it does little to tackle the impunity enjoyed by executive authorities. This system has contributed to the already widespread fear and alienation felt by people living in the Kashmir Valley.
Notable people to be arrested under PSA:
Perhaps the most glaring example of this practice is the case of Masarat Alam Bhat. A separatist leader, Bhat has been held in PSA detention dozens of times since 1990. Despite being named in several FIRs, he has not yet been convicted in any case, and authorities have passed successive detention orders to keep him locked up. He has been detained under 37 different detention orders since 1990; cumulatively, he has been held in detention under the PSA for over 20 years.
After the Government of India unilaterally abrogated Article 370 of the Constitution of India on 5 August 2019, many leaders of opposition including former chief ministers Farooq Abdullah, Omar Abdullah and Mehbooba Mufti were detained under PSA for more than five months. Many students, journalists and human rights activists were also detained under PSA.
4) NATIONAL SECURITY ACT, 1980
- How long can a person be detained under the NSA?
The NSA is a repressive law that permits administrative detention without charge or trial for up to 12 months or one year on loosely defined grounds of national security and maintenance of public order.
- Why should NSA be repealed?
At the time of its enactment in 1980, it was stated that “these powers were needed to deal with black marketeers and smugglers, and that the question of its use to curb political action did not arise”. Today, the law is promoted as tool to prevent communal disharmony, social tensions, extremist activities, industrial unrest, etc. However, its application is far from its stated intention.
In many cases of NSA, the detention orders are broad and ambiguous and do not clearly communicate the crime which is likely to be committed if the person is not preventatively detained. As a result, like sedition or UAPA, this vague definition allows the Government to target protesters and human rights defenders in India without giving just cause.
To make matters worse, the grounds of detention are often not communicated to the person detained in violation of Article 22(5) of the Constitution of India and the International Covenant on Civil and Political Rights, to which India is a state party.
UN Security Council Resolution 1456 says that “States must ensure that any measure taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law in particular international human rights, refugee and humanitarian law”. Currently in clear violation, India must abide by its international obligations while enacting and applying laws to fight terrorism.
Notable people to be arrested under NSA:
Akhil Gogoi, a farmer’s rights activist in Assam was arrested under the NSA in 2017. He was later released after the order of the Gauhati High Court. Bhim Army leader, Chandrashekhar Azad Ravan was arrested under NSA for his alleged involvement in the 2017 Saharanpur riots.
UAPA, sedition, PSA and NSA are four of many laws that the government uses to sidestep human rights in the name of combatting terrorism in India.
Outliving and outlasting their original intent, these legislations are now used to circumvent the standards which set out minimum guarantees designed to protect the right to a fair trial in criminal proceedings. As a result, it has been disproportionately used by consecutive governments to marginalize human rights defenders, activists, journalists, student and other dissenting voices by intimidating them with unlawful detention and even torture. This puts India in absolute violation of its international obligations under the International Covenant on Civil and Political Rights, to which it is a state party along with the Constitution of India.
However, the Government of India often selectively picks international law standards to justify the use of such laws. To illustrate, in July 2019, the Union Home Minister falsely claimed that that the proposed amendments to the Unlawful Activities Prevention Act (UAPA) complied with international standards. International law clearly lays down that any measure taken to combat terrorism must comply with all their obligations under international law in particular international human rights, refugee and humanitarian law – making it clear that terrorism must not and cannot be countered at the expense of human rights.
Mrinal Sharma is a Policy Advisor at Amnesty International India.
The article is originally published in Amnesty India’s blog.