Judiciary’s Task: Challenge Misuse of Draconian Laws

img1 Jacob Peenikaparambil
21 Jun 2021

Ever since the BJP came to power at the centre in 2014 judicial activism in India slowly became feeble. The judicial principle, “Bail is the rule and Jail is exception” was overturned in many cases because of the excessive application of draconian laws like UAPA (Unlawful Activities Prevention Act), NSA (National Security Act), PSA (Public Safety Act), AFSPA (Armed Forces Special Protection Act) and Sedition Law to those who questioned or criticized the government. It appears that jail has become the rule and bail an exception. Getting bail for those who are charged under the anti-terror laws has become a herculean task. At the same time, there is also an extraordinary delay in starting the trial of cases. As a result the accused or the under-trails have to languish in jail indefinitely. 

The Bhima Koregaon case in which 16 activists, academicians, lawyers and journalists are arrested and put behind the bars is a classical example for the agony of those arrested under the anti-terror laws. The first batch of the five was arrested three years ago. Majority of the BK 16 are above the age of 70, and the oldest is Stan Swamy, an 84 year old Jesuit priest. There is no sign when their trial will begin, and at the same time except Varavara Rao no one is given even medical bail in spite of suffering from serious diseases, including Covid 19.  Thousands of Indians are languishing in the overcrowded and unhygienic jails without getting bail because of the stringent conditions for granting bail under the so-called anti-terror laws.     

According to the National Crime Records Bureau, there was a whopping 165% rise in the number of UAPA cases since 2016. As per the data provided by the Ministry of Home Affairs in Parliament in March 2020, a total of 1126 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015.

A  database launched by Article 14 in the first week of February 2021 showed that 96% of the sedition cases filed against 405 Indians for criticizing political leaders and government over the last decade were registered after the Narendra Modi government came to power in 2014. The database also showed that 65% of the 10,938 citizens accused of sedition over the last decade were implicated after Modi came to power at the Centre in 2014.

Against this backdrop the Delhi High Court granting bail to student activists Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita on 15th June is a landmark mainly because the court expressed some fundamental concerns regarding the arrest of citizens using anti-terror laws. Some legal experts have lauded the High Court’s scathing indictment of misuse of power and law by the State.  "The judgements restore the right of protest to its proper place,” said Indira Jaising, former Additional Solicitor General. She also added that the judgement is an appropriate interpretation of the object and purpose of the Unlawful Activities (Prevention) Act and that it will benefit many of those charged under that law. Geeta Luthra observed that the state has to ensure that laws which have been made to curb terrorism are not invoked so lightly.

The Delhi High Court highlighted the following aspects through its clarifications, explanations and assertions while granting bail to the three student activists. 

1) The court found no specific or factual allegations against the student activists who participated in the anti-CAA protests and were charged under the draconian Unlawful Activities (Prevention) Act, 1967. Therefore section 43D (5) of the UAPA, which denies bail, did not apply to them.  

2) The court said that the state failed to distinguish between the constitutionally guaranteed right to protest and terrorist activity. In Natasha Narwal’s case, the court said that “it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy”.

3) According to the court, ‘the phrase terrorist act' cannot be permitted to be casually applied to criminal acts that fall squarely within the definition of conventional offences under the IPC." Regarding Asif Tanha’s case, the court held that “the foundations of our nation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a university situated in the heart of Delhi”.

4) The HC made it clear that lower courts must apply their own mind to form their own view on whether an offence under a law like the UAPA can be made out in a case, instead of going by a “purported independent review of evidence by the purported independent authority…”

5) The court also clarified “that the object of bail is neither punitive nor preventative but is principally to secure the presence of the accused at the trial; and that punishment begins only after conviction and that everyone is deemed to be innocent until duly tried and found guilty”. 

Another law often abused by the State is SEDITION LAW, section 124 of Indian Penal Code. Increasing number of people ranging from students to journalists to political opponents is being frivolously charged with sedition by the governments at the Centre and the states and they are put behind the bars. Through the recent verdicts of Supreme Court and different High Courts judiciary has questioned the abuse of sedition law. Last month the Supreme Court squashed a case filed against journalist Vinod Dua in Himachal Pradesh. SC made it clear through its verdict that without an overt call to violence and disorder, the provisions of Section 124 of IPC covering sedition will not apply. Allahabad High Court also recently threw out sedition charges against two persons accused of distributing pamphlets in protest against the CAA. 

It is very heartening to note that the Supreme Court on May 2, 2021 agreed to relook at the relevance of the law in the present conditions. The Supreme Court consented to hear a petition filed by two journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla, from Manipur and Chhattisgarh respectively, challenging the validity of the sedition law. They have argued that it poses restrictions on the Fundamental Rights of Freedom of Speech and expression, guaranteed under article 19 (1) (a) of the Indian Constitution. If the Supreme Court declares unconstitutional the 151 year old sedition law which was inserted into Indian Penal Code by the British, it will be a great relief to the people of India and a boom to Indian democracy.  

The role of the Judiciary in a democracy is crucial from the perspective of safeguarding the rights of citizens. A government that has a brute majority in the parliament is inclined to impose laws on the people to restrict their freedom, especially when the opposition is weak and disunited. The government also can be dictatorial in implementing the existing laws and it can misuse and abuse the laws. Since 2019 the BJP government at the centre has been passing laws without proper discussion in the parliament and without taking into account the views of the people. The examples are the Citizenship Amendment Act (CAA) and the three controversial farm laws. Both triggered widespread protests. The farmers’ protest has entered the 10th Month and the government has been very insensitive to them. 

Along with imposing new laws on the people, the BJP government has been misusing the anti-terror laws to silence its critics and stifle any opposition. In such a critical situation judiciary is the only hope for the citizens. The Delhi High Court has risen to the expectation of the citizens of India by granting bail to the three student activists. It is more than granting bail to three persons; it is protecting the fundamental rights of individuals guaranteed by the Constitution of India. Hence it is saving democracy. It gives an assurance to the people of India that the Judiciary in India is vigilant and it would blow the whistle when the executive crosses the lakshman rekha.  

Unfortunately, the Delhi police appealed on 16th June to the Supreme Court against granting bail to the three student activists. As per the media reports, the three students were not released from jail by the Delhi police till evening on 16th June. According to a statement by Brinda Karat, the Delhi police is deliberately trying to ‘subvert and sabotage’ the High Court order granting bail to the three student activists. The behaviour of Delhi police clearly indicates that it is vindictive and not guided by the principles of justice and rule of law. It appears that the Delhi police instead of becoming guardians of law have become mere puppets in the hands of their political masters. 

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