Royalty of Political Sections of Criminal Law Challenge Repression on People’s Movements and Suppression of Right to Dissent

On Political Sections of Criminal Laws

Royalty of Political Sections of Criminal Law

Challenge Repression on People’s Movements and Suppression of Right to Dissent

Aditya Prakash

Father Stan Swamy’s death in Judicial Custody has once again brought to the public attention the horrendous crimes committed by the State against those who raise their voice against exploitation and oppression. Not only he was framed in a fake case, this 84 year old priest who suffered from many diseases was even denied bail on medical grounds. His death, which amounts to judicial murder, should bring to focus the galaxy of black laws that weigh like mountains on the people’s back.

As the crisis of the system has progressively deepened and people’s struggles for securing their rights and also those challenging the system have grown, ruling classes have armed themselves with greater powers to suppress the people’s struggles and deprive the people of the democratic rights which they were supposed to have secured through adoption of the Constitution. In fact, the process of annulment of those rights started soon after the Constitution was adopted. Indian rulers to whom power was transferred by British colonial rulers, not only retained the colonial framework of laws but further built on it, amassing more powers in the hands of executive. This was in response to rising struggles of the people, especially revolutionary struggles of peasantry of the country.

Black laws are a gift of the colonial system to the people of India. Colonial rulers proclaimed their civilizing mission by giving to Indian people a rule of law. They proclaimed and their apologists, compradors and hangers on repeated, that this marked transition from feudal lawlessness. But this was only in name. Soon after their conquest of Bengal and some other parts of the country, British Govt. promulgated Regulating Act 1773 to ensure that whole plunder of India reaches London. This among other things provided for creation of a Supreme Court at then Calcutta; the ones at then Bombay and then Madras, were set up later. Supreme Court was to administer common law in all spheres of its jurisdictions including civil, criminal, equity etc. and covering territorial and personal jurisdictions. The administration of this Court, which was made independent of Executive authority – Governor General and his council, brought it into conflict with aims of colonial rule over the country. It has been a well known proposition in Indian legal history that had the Supreme Court continued to work under its original mandate, British rule in India would not have lasted for long! No wonder people like Dadabhai Naroji longed for implementation of British laws in India.

This was corrected through The Act of Settlement of 1781 which brought Supreme Court under executive i.e. Governor General and his council, removed revenue collection from its jurisdiction thereby making loot of Indian people unchecked by law, and restricted its jurisdiction to only British citizens. The pretence of justice was given up. A system of law devoid of its spirit was instituted, which continues to this day. The ostensible reason was to respect the local laws and customs, which meant continuation of old feudal framework on which colonialism sat as a parasite cornering major part of exploitation and loot while giving a share to its collaborators. There are no rights for the colonized in the history of countries and India could not be an exception.

People of India did rise in their war of Independence which lasted from 1857 to 1859. They were defeated in this war, largely due to going over of a large part of feudal kings and princes to the side of colonial rulers. Rule of East India Company was formally ended. British Govt., having gained control over almost whole of India, proceeded to give a legal framework to its rule. The whole framework of criminal law was instituted to instil fear among the people of the country of the colonial rule and administration. There are whole chapters of criminal law which are designed to mete out collective punishment to the people, abridging their rights to protest and making these protests as criminal acts. Moreover, procedural law was made to fully empower the police and executive and leaving little rights for the people. There started the concept of ‘Procedure as Punishment’ which continues to this day, in even more robust form. The Indian rulers kept intact not only the colonial machinery of repression but also colonial laws including criminal laws. In fact, it was provided in the India Independence Act passed by British Parliament in 1947 that judiciary will remain the same. Even the Indian Constitution provided for continued validity of the colonial laws unless repealed by Indian Parliament. Indian Parliament, dominated by ruling class parties, did nothing of the kind. Whenever it amended any criminal law, adopted a new one to replace old or enacted a new legislation, it further increased the powers of the Executive and further sharpened the tools of repression. Democratic rights were respected only to the extent people’s struggles ensured their upholding.

While the whole legal framework especially of criminal law continued mainly as of old, the Constitutional mandate was not translated into practice. Lofty principles of Preamble and Directive Principles were mostly left to be recited for effect but not to be put into action. We shall deal here with some important criminal provisions which have been and are being used against people’s struggles. Father Stan Swamy’s death in judicial custody and incarceration of a large number of academicians, advocates and intellectuals- all fighters for the democratic rights of the people, and languishing in jails, of thousands of innocent tribals most of whom do not even know what they are charged with, should impel every democratic person and organization to demand the repeal of the provisions of criminal law used for suppression of democratic rights and prosecution of those fighting for it. We will here see briefly some of the most often used criminal provisions which are fit to be described as the royalty of the political provisions of criminal law; provisions which hang over the heads of Indian people like Damocles’ sword. These are abuse of the word ‘law’ and should have no place in any democratic set of laws. It is not their abuse but their very use which is rape of the word law and nothing short of their wholesale withdrawal should be demanded by the democratic people.

Law against Sedition

One of the most often used law against those opposing the Govt., even criticizing its certain measures, has been Section 124A of the Indian Penal Code, 1861 inserted in 1870 which continues to be on the statute. This was inserted to prevent any propaganda against colonial rule which was almost overthrown in the war of independence of 1857-59 and British colonial rulers were keen to nip any opposition in the bud. The plain language of the provision betrays its real purpose:

“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.” The word disaffection betrays the real purpose- people of India are not to have any disaffection towards colonial rule. The three explanations added to the provision do not remove this expression. Now what criticism of the Govt. measures can escape the charge of causing disaffection!

True to its intent, the provision was extensively used against the leaders participating in the freedom movement and many were incarcerated under it. They too have described it as lawless law. To quote a few- M.K. Gandhi described it as “a rape of word law” “kept ready to descend upon us at the will of arbitrary rulers” and called its repeal as  part of his Swaraj. He also said, “Section 124 A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.

Another important leader, J.L. Nehru who was to assume power after its transfer by British rulers, had this to say, “Now so far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” However, nothing of the kind happened when Congress assumed power under his leadership. On the other hand, his Govt. moved to amend the Constitution to introduce the words “in the interests of public order” to the exceptions to Article 19(1)(a) which recognizes fundamental right of every citizen to freedom of expression. It is to be noted that these words were sought to be introduced in the Constitution in the Constituent Assembly itself, but the attempt failed there. Then they were introduced to validate suppression of journals and speeches of then communist leaders. It was the time of Great Telangana People’s Armed Struggle. After this amendment (First Amendment to the Constitution) challenge to Section 124A became difficult.

Section 124A continued to be used against the freedom of expression and cases kept on being registered under this Section. Congress leaders who were in power after 1947 refused to honour their commitment and sanctioned the use of this provision especially against those who were espousing people’s cause. Supreme Court had an opportunity to examine this provision and its order in Kedarnath Singh case and upheld the validity of the provision by reading it down. The Court held, “Keeping in mind the reasons for the introduction of s. 124A and the history of sedition the section must be so construed as to limit its application to acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence.” Disaffection was watered down. But given the unambiguous nature of the provision, this act of reading down had had little effect and the provision continues to be used against activists and dissidents. Its widespread use in a number of states such as UP, its use in even capital Delhi against student activists should make everybody realize that these judicial interpretations have little use to the people at large and even for those who can contest their cases, not before they have been incarcerated for some time. It is pertinent to recall, what to talk of read down version, cases kept on being registered under Section 66A of the IT Act and thousands of people (over six thousand) were framed under it even after the Supreme Court had struck it down holding it unconstitutional! And the Supreme Court just expressed disappointment without ordering action against those officers who sanctioned framing of these cases or offering suitable compensation to those affected by this unlawful prosecution.

This “Prince” of political sections of Criminal Law is alive and kicking. Rather its scope has been further extended to even cover disaffection against US imperialism as is evident from the charging with sedition of those who hailed the defeat of US imperialism in Afghanistan!

King of Black Laws : UAPA

Ruling classes have always used black laws – Laws against democratic rights of protest and laws to suppress revolutionary movement, its leaders and cadres. Not only Preventive Detention Act, a myriad of undemocratic laws were made and enforced. These are besides the use of ‘ordinary’ criminal laws to suppress the people’s movements. DIR, MISA, NSA, ESMA, PSA etc. are just to name a few. These laws were designed to curb movements of workers and peasants. But of them UAPA has emerged the king of black laws.

It has its origin in an Ordinance promulgated in 1966 to check ‘unlawful’ activities which were defined very broadly. This was in the backdrop of rising people’s struggles especially in West Bengal and growing restiveness and movements of peasantry. The Ordinance was to curb the activities of the associations deemed unlawful but was criticized for its curbing the democratic rights particularly its lack of any provision to review such a designation. Its avowed purpose was to curb unlawful activities designed to challenge unity and integrity of the country and was also to supplement provisions of DIR. Some amendments were made in it but they did not substantially alter its character till wholesale incorporation of POTA provisions after the same was repealed in 2004.

Anti-Terror Laws: Despite several black laws against workers and peasants’ struggle, a specific anti-terror law was made in India in the backdrop of Khalistani militancy in Punjab. In 1985 Terrorist and Disruptive Activities (Prevention) Act, (TADA) was enacted which lasted till 1995 as its sun-set clause of two years was not extended due to widespread opposition to it. Though it was claimed to be curb militancy in Punjab, it was extended to all over India. Like the case with all subsequent legislations as well, it had particularly vague and extensive definition of “terrorism”:

“Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.” (italics added)

The Act was outright undemocratic, providing detention up to one year without any formal charge, police custody up to 6o days, detainee may be produced before Executive Magistrate i.e., a police officer, trial at secret place and secrecy of identity of witnesses. Dangerously if a person is charged of committing a terrorist act or there is even a suspicion of having arms and explosives, or providing financial assistance, then the person shall be presumed to be guilty unless proved otherwise thus reversing the principle of presumption of the innocence of the accused unless proven guilty. Confessions before the police officer above the rank of Superintendent were made as admissible evidence. Right to appeal was restricted.

The Act was widely abused with detentions under the Act exceeding 76,000 by June 30, 1994. Less than two percent were convicted. A large number of those arrested were textile workers from Gujarat.

While TADA was allowed lapse in 1995, it was replaced by more stringent Prevention of Terrorism Act (POTA) in 2002 by the then ruling NDA in the aftermath of attack on Parliament in December 2001. POTA made the confessions made before the police officer admissible as evidence, bail only to be granted if the judge is convinced that the accused was not guilty and the detention could be extended even if charge-sheet in not submitted. It had all the notorious provisions of lapsed TADA including its provisions of search and seizures.

The Act was widely misused especially against Muslims. NDA Govt., fitting its anti-terrorism legislation into US led ‘global war on terror’ and its communal narrative at home, targeted Muslims in the name of countering Jihad by Muslim groups. A large number of Muslim youths were arrested under the Act. The Act became so notorious that democratic public opinion demanded its repeal and it far surpassed whatever undemocratic legislations existed already in the statute book.

POTA Reincarnated in UAPA

Congress and other ruling class parties joined to form Govt. after 2004 parliamentary elections under the name United Progressive Alliance (UPA). National Common Minimum Programme, to which parliamentary left parties were party, said “But given the abuse of POTA that has taken place, the UPA government will repeal it, while existing laws are enforced strictly.” UPA repealed POTA through an Ordinance but despite its commitment to use only existing laws, UPA promulgated an Ordinance to extensively amend Unlawful Activities (Prevention) Act (UAPA) and through this the provisions of repealed POTA were wholesale brought into UAPA. Cases filed under POTA were to continue, even their review was shoddy. Even the operation of most hated provision of admissibility of confession before police officers as evidence was not deleted for the trial of cases registered under POTA.

The amended UAPA included definition of terrorist offences including a new concept of ‘terrorist gang’.It incorporated three chapters lifted from POTA. This reinforced RSS-BJP argument that existing laws were not effective against acts of terrorism. There were some changes though from POTA. Provision that made confession made before police officers admissible was left out. Provision for bail was changed. Under POTA, bail could be given only if the Judge comes to conclusion that the accused had not committed the offence. Obviously with only police material before the Judge, bail was virtually ruled out. Under UAPA, Judge has only to conclude whether prima facie the accused is guilty or not. There was some change in extension of custody if charge sheet is not filed in time unless Judge agrees that it was not possible to conclude investigation in the stipulated time. POTA provision regarding admissibility of evidence collected through the interception of communication was included in UAPA. All the organizations banned under POTA were banned under UAPA without any examination about the veracity of allegations against them. Through this exercise of incorporating POTA into UAPA, UPA tried to fool the people. Further, unlike TADA and POTA it has no sunset clause; it is a permanent statute till repealed. Further it did not even include some safeguards, howsoever insignificant, of POTA and TADA into amended UAPA.

In the backdrop of Mumbai attacks on November 26, 2008, UPA Govt. further amended UAPA to make it even more draconian and gave more powers to Central Govt. In 2008 amendment definition of terrorist act was made even more vague and broad including damage to property and disruption of supplies or services to community, incorporated from TADA. The amendment makes it a crime to question any claim of the Govt. of India on any territory. Further it makes an offence any act which causes or intended to cause disaffection against India. The provision makes it criminal to sympathize or support demands or struggles of minority nationalities.

Some more provisions empowering police to search, seize and arrest without warrant or court order, power to detain for 180 days including 90 days in police custody without filing charges and provisions regarding in camera hearings, secret witnesses, were added. Another provision relates to rebuttable presumption of guilt on the basis of certain evidence thus shifting onus of proof on the accused in such cases. How routine it is for police to plant weapons on the accused!

Along with this amendment, National Investigation Agency Bill, 2008 was passed unanimously by Lok Sabha that created a Federal Agency- NIA- to investigate terror-related incidents. This was a serious blow to federal structure as law and order is a state subject. Further accretion to the type of offences to be investigated by NIA led to Central Govt. transferring cases to NIA at whims and fancies of the Party in power at the Centre.

UAPA was further amended in 2012 in the name of India becoming a member of Financial Action Task Force (FATF), an international organization for combating financing of terrorist acts. It added associations of people, whether they were incorporated or not as persons related to terrorist acts, as ‘persons’ thereby increasing the ambit of those charged with terrorist offences merely on the basis of acquaintance or contact and making any group of persons as association. This amendment increased the maximum ban allowed on proscribed associations from two to five years. Further, it brought economic offences within the ambit of terrorism. It included no safeguards against the abuse of the law though the law itself is an abuse of word law. Moreover, once an organization is proscribed, the onus is on the organization to prove it wrong but State is not even obliged to disclose the basis of its proscription. What a travesty of even a modicum of law!

In the most recent amendment to UAPA in 2019, the definition of “terrorist” was further expanded to include individuals. It allowed the Govt. to frame anybody under the Act and his/her association with the proscribed organizations is not necessary to be alleged. It brought all the people’s movements under the ambit of UAPA. Even de-notification of an individual has been brought in the hands of Central Govt. Further it allows NIA to seize property as proceeds from terrorism.

UAPA grants immunity for those involved in “any operations directed towards combating terrorism”. Such immunity breeds impunity.

Bail under the UAPA

UAPA has somewhat different provision for grant of bail as compared to other laws like POTA or NDPS or MCOCA. The latter two acts – one dealing with Narcotics and second with organized crime- operate on different level. But the provision in POTA, whom amendment of UAPA replaced, was different as mentioned above. But the Courts including High Courts have been refusing bail. In fact, Supreme Court itself closed the door on the provision by its Judgment in Watali case (2019). As noted earlier under UAPA, for grant of bail the Judge has to come to conclude whether a prima facie case exists or not. Courts cannot go into evidence at the stage of granting bail. Supreme Court in Watali judgment held that discarding of evidence on the ground of inadmissibility is not permitted. If evidence cannot be gone into, even its admissibility, then Court has to judge only on the basis of police averments in FIR and charge sheet. Thus the difference that was sought to be made from POTA, NDPS, MCOCA wherein degree of requisite satisfaction is higher, is nullified in practice. Many legal luminaries have advocated review of Watali judgment.

While granting bail to student activists who were falsely implicated in the North East Delhi violence, Justice Bhambhani of Delhi High Court has mentioned the Supreme Court pronouncements. He held that as the UAPA was enacted by the Parliament under Entry 1 of List 1 which deals with Defense of India and every part thereof … The offences charged must have some relation with the avowed objective. Going through SC averments that terrorism is “not capable of precise definitions, Court strive to give to these concepts a narrower construction than what literal words suggest” upholding a well known principles of jurisprudence that harsher the legislation, narrower the construction. Justice Bhambhani correctly commented that punishment begins after conviction thereby disavowing procedure as punishment and noted bail should not be denied owing to long period of trial. Satisfied on the concerns about evidence tempering, witness intimidation and abscondence, he granted bail.

Supreme Court hearing the Govt. appeal against grant of bail expressed “surprise” and dissatisfaction with HC order.

What is Terrorism?

While Govts. world over have launched operations against “terrorism” there is no agreement on definition of terrorism. Most of the UN resolutions deal with the steps to deal with terrorist offences or their funding but do not define terrorism per se as there is no consensus. The Govts. have used anti-terrorism to suppress dissent and opposition at home while they have used it as a state policy in other countries. Without going into history of the use of this term we can see its present usage. UN General Assembly in a resolution of December 9, 1994, said, “.. criminal acts intended or calculated to provoke a state of terror among general public, a group of persons or particular persons for political purposes.” The US Code Chapter 38 Title 22 defines it as “premeditated, politically motivated violence perpetrated against non combatant targets by sub-national groups or clandestine agents.” On the contrary, UN Security Council resolution (2004) defines it as “..criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a govt. or an international organization to do or to abstain from doing an act.” Security Council resolution is definitely broader and includes types of acts without defining their common character, is broader in ambit than General Assembly Resolution (1994) or under US law. It obviously bears imprint of US’s ‘global war of terror’ in whose name US had invaded first Afghanistan (2001) and then Iraq (2003).

War on terror has been an instrument of US imperialism to launch wars of aggression to secure its world hegemony. It sought to maintain economic supremacy over other powers through military means by controlling resource rich regions, trade routes and power to enforce business decisions. The war failed due to continued decline of economy epitomized by Great Recession- explosion of world financial economic crisis- and Resistance of the people of invaded country while rise of other powers mainly China changed the world to multi-polar world. However, combating terrorism has remained a ploy in the hands of reactionary rulers all over the world who have sought to crush the democratic rights of the people and their struggles for better future. Hence, definition of the terrorism is deliberately kept vague and broad to suit the interests of imperialism and reactionaries.

In India as well, the Govt. has deliberately kept the definition of ‘terrorist’ act vague and broad so as to target people’s movements. And this trend has grown over time. Even though our very criminal laws are routinely used against people’s movements as there are several political sections in the criminal law as it does not accord any exemption to political motivations or actions, ruling classes have further sharpened these tools through laws against terrorism. Even prior to that there was a galaxy of laws authorizing preventive detention, ESMA, National Security Act, Public Safety Act. And all these have been validated because the ruling classes have made “maintenance of public order” as a limit on the exercise of fundamental right of speech and expression. Supreme Court of India has been very indulgent towards the notion of the security of the state even at the expense of the rights of the people guaranteed under the Constitution. Supreme Court too has not defined “terrorist” act nor has it struck down the vague or broad term given in the statutes. When the law and its interpretation is tilted against the people, the rest is done by law and order machinery gloating under the immunity offered to it under these laws.

Supreme Court has said in PUCL case, “It is not possible to give a precise definition of terrorism to lay down what constitutes terrorism.” In an earlier case (H.V. Thakur) Supreme Court had defined it as “.. deliberate and systematic use of coercive intimidation.” In a number of cases SC has defined terrorism in various ways, sometimes the concepts advanced being at variance. SC in yet another case even went to the Latin root of word “terror” as intense fear but failed to come up with even ingredients of defining an act of terror, thus making it easy to abuse the provisions relating to it. In an earlier period, when terrorism was not the flavour of repression, SC had held in Ram Manohar Lohia case that offences can be grouped into concentric rings of offences in ascending order of severity from periphery to centre.

Supreme Court had in A.K. Roy vs. Union of India (a case relating to National Security Ordinance) held, “… crimes must be defined with appropriate definitiveness is regarded as fundamental concept in criminal law.” At that yardstick the anti-terror legislation fails the test of fundamental concept of criminal law but is reduced to a mere tool of repression and suppression of the people.

Emperor of Repressive Laws: AFSPA

No discussion on the undemocratic laws would be complete without mentioning what takes place of pride among them- the Armed Forces (Special Powers) Act, AFSPA. It grants absolute power to the armed forces and total immunity to them for their actions under the Act. Armed Forces establishment has resisted any dilution of the provisions of this Act. This law has been used in Jammu & Kashmir and states of Northeast. In fact it is being used where nationalities are struggling for their democratic aspirations including right to self-determination. Here, there are little democratic rights available to the people and none in relation to Army. Army can kill at will and search & raid where-ever it wishes. First the state or a region is declared as ‘disturbed’ and then Central Govt. deploys armed forces to quell that disturbance.

Based on the Ordinance promulgated by colonial rulers in 1942, AFSPA was first applied to Nagaland and Manipur but later extended to several regions of Northeast states.  A similar law was passed in relation to Punjab and Chandigarh, but later repealed. Similar law exists in relation to J&K where another draconian Act, Public Safety Act is also in operation.

The law is an open violation of the International Covenant on Civil and Political Rights and UN Human Rights Commission has repeatedly asked India to repeal it. There are a number of incidents of killing of civilians and a number of reports have found the armed forces guilty of such killings. The Act is not a solution to the disturbances but has become a part of problem of increasing disturbances. Manipur, Nagaland and other states have witnessed several people’s protests against AFSPA. This does not qualify to be a law but a measure to control the people as an occupying power with people having no right.

The law has evoked much controversy in the country but the ruling class parties have stood behind the law. Justice Jeevan Reddy Commission had recommended its repeal as “the Act is a symbol of hate, oppression and instrument of highhandedness.” The report submitted in 2005 was formally rejected by the Central Govt. ten years later. Several other commissions have also depicted violation of rights of people.

Fight for Repeal of Black Laws and End of Repression

Death of Father Stan Swamy in judicial custody and incarceration of a larger number of democratic rights activists and intellectuals besides thousands of tribals languishing in jails under UAPA, demonstrate the need to develop a broad based struggle for democratic rights in the country. Movement for democratic rights is quite weak in India despite several organizations working for it. There is a need for all of them to come together and mobilize the intelligentsia in defense of democratic rights. This has to go along with growth and development of people’s movements to counter ruling classes’ false propaganda that such laws are in the interests of the people. Struggles involving masses as well as attempts to mobilize intelligentsia are necessary for growth of the democratic rights’ movement. While the former provides it the base the latter makes it reach all sections of people to make it broad based.

Ruling classes’ need for black laws grows in proportion to its recourse to repression to increase exploitation and oppression of the people. Black laws are the ornaments worn by worn out system. Ruling classes will not give them up, they have to be forced to give these up. To build a powerful movement against these black laws and for end to repression will be the proper homage to Father Stan Swamy and countless others who have suffered and are suffering the vagaries of these lawless laws, of these unjust juridical manoeuvres.