In a robust democracy, where the rights and freedoms of every single citizen are meant to be guaranteed, there is no place for any draconian laws
Arun Ferreira was brought up in Bandra, Bombay and graduated from St. Xavier’s College there. Since his college days, he engaged in social and political activism organising students to fight for their rights and against social atrocities. He deeply involved himself in the ‘right-to-housing’, struggles of Mumbai slum-dwellers and later on with the tribals and other marginalised communities in rural Maharashtra. For his commitment to the rights of the poor, he was picked up in 2007 and was falsely charged of being a naxalite. For almost five years he was incarcerated and languished in the Nagpur Central Jail under the Unlawful Activities (Prevention) Act (UAPA) which is applied to people the State brands as terrorists.
For two years after his prison term, Arun still had to fight the system on the false charges which were foisted on him. Only in January 2014, he was finally acquitted of all charges. Today, he has completed his law studies and fights on behalf of political prisoners, for prison reforms and very particularly against the repeal of draconian laws like the UAPA.
The Unlawful Activities (Prevention) Act undoubtedly is the country’s most draconian law – first introduced in 1967 – and is becoming increasingly repressive and regressive. It is essentially an anti-terrorism law which enables the police to abduct any person on grounds of suspicion or even if he has in his possession some incriminating materials; the police can arrest the person for an indefinite period of time and deprive the person of one’s fundamental rights. The arrested person is kept in solitary confinement and is also subject to the most brutal torture.
When the UAPA was passed, several civil rights groups (nationally and internationally) voiced their disagreement with several provisions of the law, but successive Governments have turned a deaf ear only providing an ‘assurance’ that the law would not be misused. This is however not the case in reality: Dr. Binayak Sen was arrested and jailed for almost three years. In May 2014 Prof. G.N. Saibaba, an English Professor in a Delhi University College was arrested and kept in solitary cell in spite of being a 90% disabled person.
In 1985, the Terrorist And Disruptive Activities (Prevention) Act (TADA) was introduced with a clear focus on Punjab and the Sikhs. The Act was finally scrapped in 1995 but not before several from Punjab had to bear the brunt of the draconian law.
In 2002, Prevention Of Terrorism Act (POTA) was introduced but after huge outcry it was finally removed in 2004. However, in 2004, the UAPA was given more bite and in subsequent amendments (2008 and 2012), several of the provisions of the POTA Act were incorporated.
One should also note that way back in September 1958, the Parliament passed the Armed Forces (Special Powers) Acts (AFSPA). It gave special powers to the Indian Armed Forces to deal in ‘disturbed’ areas particularly in the seven States of North East India. In 1983, it was applied to Punjab and Chandigarh but withdrawn in 1997. In 1990, it was applied to Jammu and Kashmir and is still in existence there. The AFSPA has come in for much criticism by people from every walk of life. Sharmila Irom, a civil rights activist from Manipur has been on a hunger strike for fifteen years now for demanding an immediate and total repeal of the AFSPA.
On 31 March, 2015, the Gujarat Legislative Assembly passed ‘the Gujarat Control of Terrorism and Organised Crime (GUJCOTOC) Bill 2015’. It is now waiting Presidential assent; very interestingly, three earlier versions of this draconian bill in 2004, 2008 and 2009 were rejected by the President of India.
There are several provisions in the bill which are draconian in nature and will surely enhance tyranny by the police and the abuse of law in order to settle political scores or to quell dissent and human rights, including:
i. the empowerment of an investigating agency to continue for 180 days its investigation – as against the maximum period of 90 days laid down in the Code of Criminal Procedure (CrPC); during this period the accused will be in judicial custody
ii. the confession made before police officer while in police custody can be used against the accused in a trial
iii. the authorisation for the interception of wire, electronic or oral communication as admissible evidence against the accused in court
iv. the Government (according to Section 25 of the bill) is made immune from any legal action for ‘anything which is in good faith done or intended to be done in pursuance of this act’
The justification given by the Gujarat Government for such an inhuman legislation is that it has borrowed several of its provisions from already existing laws both from India and abroad and that it has striking parallels to the Maharashtra Control of Organised Crime Act (MCOCA) 1999 – which of course has no reference to terrorism.
Civil society in India, particularly in Gujarat, is up in arms against the GUJCOTOC and other draconian laws. Mr. Girish Patel, Senior Counsel of the Gujarat High Court says: “Modern criminal law suggests that an accused should be treated as a human and the onus is on the State to prove that he is guilty. It also entitles him for a fair trial as per the Constitution and benefit of doubt, if any, is enjoyed by him; however, the bill is against these principles.”
At the end of the day, one thing should be clear that in a robust democracy, where the rights and freedoms of every single citizen are meant to be guaranteed, there is no place for any draconian law whatsoever! We need to join Arun, Sharmila and the others in fighting for the total repeal of such laws.