REPRESIVE LAWS OF INDIA

The Indian constitution provides for the rule of law but sometimes the government acts in a manner that deals a sever blow to this concept and encourages authoritarian trends. For example, in the name of dealing with the communist revolt in Telangana in 1951, the first peasant movement that took place in independent India; crushing the naxalites, curbing smugglers and terrorists, the Indian Government has over the years passed certain acts and issued ordinances which give it absolute power. The government justifies its action stating that some people commit crimes and misuse constitutional provisions and go scot free after taking recourse to judicial action. However, critics say that very often, it is the government that abandons the rule of law to achieve its political motives by crushing the opposition in order to remain in power. Whatever maybe the arguments on either side, it is true that in the last 50 years, such authoritarian tendencies have gathered momentum through the detriment of democracy and the rule of law in India. 

The Fundamental Rights given by one hand have been taken back by the other because of certain exceptions and restrictions thus depriving the ordinary citizen of his rights in reality.

Eg. The Fundamental Rights are incomplete because they do not include the right to work and leisure.

The right to Freedom and Speech has many obstacles such as censorship moral policing – this was noted in Tehelka, and the case of Satyandra Dube.

Authoritarian Trends in Indian Democracy:

1950 – PDA

1958 – Armed Forces Special Powers Act

1971 – MISA (Maintenance of Internal Security Act)

1975 – Emergency

1980 – NSA

1982 – TADA

1994 – MCOCA

2001 – POTO - POTA

1950 – PDA, passed as a result of the communist led revolt in Andhra Pradesh.

The Preventive Detention Act (PDA) was passed in 1950, which constituted a serious restraint to personal liberty and was in force till 1969. It gave the government the right to imprison without trial before any crime had actually been committed as a precautionary measure. For 19 years the PDA was enforced.

In 1958 the Armed Forces Special Powers Act was formed and it continues to date. It empowers the Armed Forces with extra ordinary powers of arresting without a warrant and killing any person just on suspicion. Entering premises and destroying property. Gave immunity to armed forces. The armed forces have used this arbitrarily in J & K from 1990 and the North – East from 1958.  The Pathribal fake encounter is a case where the CBI has given evidence point out to the encounter case to the Supreme ( eight Army men ), but due to the protection provided by AFSPA they cannot not be punished since they have immunity from law.

In 1971 the notorious MISA was passed to deal with the Naxalites, the secret agents of East Pakistan, smugglers etc. Maintenance of Internal Security Act is the full form of MISA. Thousands of people were detained for 3 months without trial. Many of them were set free when they went to court.  The 39th Amendment to the Constitution of India placed MISA in the 9th Schedule to the Constitution, thereby making it totally immune from any judicial review; even on the grounds that it contravened the Fundamental Rights which are guaranteed by the Constitution, or violated the Basic Structure. During Emergency, this law was used to detain many opposition members.

In 1975, the President curtailed the right of the detainees to go to court for protecting their fundamental rights. 1975 was probably the darkest hour of Indian democracy. This was on the 26th of June, 1975.

In 1980, the Congress with Indira Gandhi at the helm again came to Power and the NSA, National Security Act was passed, which was applicable to the whole of India except J & K. Anybody who acted prejudicial to the country could be arrested. This was the time when the Khalistan movement had begun. The law allows for preventive detention of up to two years of persons believed to have committed offences under the Act.

In 1982, when the terrorist and extremist problem became acute, another repressive law called TADA (Terrorist and Desruptive Activities Act) was passed in 1985 and remained in power till 1995. Under this law anybody could be arrested, detained and even tortured if the government was convinced if he or she was engaged in anti state violence. 

Under TADA, several politicians and human rights activists were arbitrarily arrested.

In 1994, Maharashtra formed the MCOCA – Maharashtra Control of Organized Crime Act. Unlike normal law the confessions before senior police officers are admissible, not only against the accused giving the confession but also against the other accused in the same case.

Amendments to Unlawful Activities (Prevention) Act (UAPA), 1967: These included increased punishment for committing acts of terrorism, enhanced police powers of seizure, communication intercepts made admissible as evidence and extended periods of detention without charges to 90 days from the original 30 days.

The Government has tried to curtail the power of the Judiciary by clipping it’s wings since 1970. Many senior judges at the Supreme Court and the High Courts have been superseded or transferred and their vacancies have been filled with pliable judges.

Look up POTA and POTO and what it entails. The ordinance was passed in 2001 in the wake of the attacks in the US. Several attacks in the state of Jammu and Kashmir, and the attack on the Indian Parliament in December 2001 acted as catalysts for the enactment. POTA allowed for detention of a suspect up to 180 days without filing charges in court. It also allowed authorities to withhold identity of witnesses, treated confessions to police as admissions of guilt, and included provisions for banning organizations and for cracking down on funding for terrorism. It gave the government sweeping powers to arrest and detain anyone labelled as a terrorist and was used as a political weapon to harass ordinary citizens. POTA is a threat to freedom of expression. One of the most high-profile arrests under POTA was not of a terrorist, but of a politician

from Tamil Nadu – V. Gopalaswami alias Vaiko.

The Prime Minister’s Office (PMO) has become an institution of influence and authority. There is complete politicisation of the Civil Services in India and very often bureaucrats and politicians become a law unto themselves and misuse their office. They look down with contempt on the ordinary citizens and are neither effective nor efficient. They are often pressurized by the politicians for personal gain.

If an ordinary citizen and the media can be more vigilant and active, authoritarian tendencies can be curbed and true democracy and the rule of law can take routes in the country.

@Notes courtesy of Aparna, Shruti Gokhale, Dhanika and myself