During the recent passage of National Investigative Agency (Amendment) Bill, 2019 in Lok Sabha, Home Minister Amit Shah, while refuting opposition claims over "misuse" of law ,asserted that the Modi government will never misuse it on the basis of religion but ensure that terrorism is finished off irrespective of the religion of the accused[ii].
This claim of the Home Minister may not be reflective of ground realities, when one takes into account the history of use of anti-terror laws against innocent citizens.
Indians being subservient to the draconian law during British Raj was a norm. This hasn't changed much after independence. TADA[iii] (elapsed) and POTA[iv] (now repealed) enacted after India gained independence, by Indian legislators, were draconian in a way as they were used effectively by state agents to abuse personal liberty and Fundamental Rights. Take for instance, Section 17(4) of TADA, which stated "…nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under the provisions of this Act…". The provisions of the Unlawful Activities (Prevention) Act, 1967 (for short "the UAPA Act"), namely under Section 43D(4) and 43D(5) are similar to the aforesaid Sections 17(4) and 17(5) of the TADA Act.
Similarly, the provisions of Maharashtra Control of Organised Crime Act, 1999 (for short "MCOC Act"), namely, Sections 21(3) and 21(4) are identical in terms. According to one political analyst, these laws are regurgitated versions of one another[v]. There have been examples when Supreme Court has invalidated a law and Parliament has enacted another law, with more harsher provisions than previous one or Indian government has repealed one law and fortify it with yet another law, more draconian and heinous than its predecessor[vi]; The repealing of POTA in 2004, in this sense, was just an eyewash as most of its provision were added to UAPA act[vii] by amending it in 2008.
Innocents made scapegoats
The Fundamental Rights are all parts of an integrated scheme and their waters must mix to constitute grand flow of impartial justice. Legislation should not invade the rights and should not smack of arbitrariness. The restriction of law should be rational and connected to the purpose for which it is necessary[viii]. Needless to say, laws which abridge fundamental rights and personal liberty of human on mere suspicion of crime are worst form of law. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case[ix].Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person[x].
National Police Commission in its third report mentioned power of arrest as one of the chief sources of corruption in the police, in India. The report suggested that, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police arrests and action accounted for 43.2% of the expenditure of the jails[xi]. The Law Commission of India on many occasions has severely criticized the police for the arbitrary use of power of arrest. Arrest brings humiliation, curtails freedom and cast scars forever. Lawmakers know it so also the police. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive[xii]. A wrongful arrest violates Article 21 of the constitution; the victim of arrest is entitled to compensation[xiii].Although, compensation can be granted for wrongful arrest but no compensation can justify the loss of dignity or the hardships one has endured in jail due to wrongful arrest.
Most misused provision
There have been instances of tribals being branded as Maoists and arrested by police for the only crime of trying to protect their area from exploitation and mining. Out of 39% of population of SC, ST and minorities in India, 53% of them are behind bars and most of them have been convicted under UAPA act[xiv].
Subsection 2(o) (iii) of UAPA Act that was added by an amended act of 2004 is in itself very vague as it makes any action a crime if it causes 'Disaffection against India'. This has been effectively used by government, in lieu of national security, to suppress the critiques it fears. If a person is charged under UAPA, then even the court cannot exercise its power, to order or to direct the officer in charge of a prison to produce the detained person in court for inquiry, trial, answering to a charge or any other such proceedings, as UAPA specifies that S. 268 of the Cr.P.C. applies to every offence under the act. Accused charged under the UAPA can be denied all access to the court! Under UAPA police have 180 days instead of 90 to file a charge-sheet and it also doubles the time of one being remanded to police custody of up to 30 days and increases the duration of judicial custody to 90 days as well. The provisions of this law reminds of George Orwell's '1984'.
The fortification of NIA (amendment) bill, is no more than an act of bamboozle. The atrocities committed on Dalits, Tribals and minorities by state machinery outweigh the atrocities committed by government on any other individual .It is appalling to note that majority of those who charged under anti-terror laws are the people belonging to SC, ST and minority communities.
Dalit activist, Angela Sontakke was arrested on 24 April 2011 by the Maharashtra ATS for allegedly having links with Maoists. For police, mere possession of maoist literature was enough for her conviction under UAPA act. Six others arrest of dalits followed within days of Angela's arrest. Sushma Hemant Ramteke, 27 years, was arrested for the only offence of sharing rented accommodation with Angela. Anuradha Sonule and Mayuri Bhagat (Jenny), both 23 years of age, were found in possession of Maoist literature, and were thus arrested as they too have been accused of being members of the CPI (Maoist). Manoj Sonule was arrested in 2008 along with Arun Ferreira (human rights activist) and eight others on charges of being an alleged naxalite. (All the accused, including Manoj and Arun, were later acquitted in September 2017 as none of the charges could be proved against them).Even though, Supreme Court in the case of Arup Bhuyan[xv] ruled that, "Mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence".
In another case of Chatradhar Mahto, a peasant-Tribal leader from Lalpur (West Bengal) who was also the spokesperson the Peoples Committee against Police Atrocities (PCPA) was arrested in 2009 and was charged under UAPA Act. Twenty cases including those of keeping arms, exploding land mines, waging war and riotous assembly were registered against him. He was granted bail since Police could not prove any charge against him, but is not being released from the jail because of pending UAPA charges against him. Ranjit Murmu, who was arrested along with Chatradhar Mahto, died in police custody on 24th September 2011.
In April 2008, Jiten Marandi, a cultural activist of Jharkhand was arrested and charged under UAPA for Chilkhara massacre, a crime which he never committed. The police filed a charge-sheet and used three stock witnesses to get him convicted. The Sessions court awarded him death penalty but it was Jharkhand High Court which reversed the order and dropped all charges under UAPA against him.
Swapan Dasgupta, the editor-publisher of the Bengali version of People's March was arrested in February 2010 and was charged under UAPA on the ground that his magazine was an organ of banned CPI (Maoist) party and thus is accused of waging war against India. He died on 2nd February 2010 under the custody of West Bengal Police. However, one of the peculiar fact here to mention is that the magazine was registered under Govt. of India and was never outlawed or banned.
On 28th of August 2018, Arun Ferreira and Vernon Gonsalves were again arrested along with Gautam Navlakha (civil liberties activist), Sudha Bhardwaj (trade union activist) and Varavara Rao (telugu poet) for their alleged links to Communist Part of India – Maoist[xvi].However, one curious fact here to take note of is that, Maharashtra police was unable to explain the specific offence for detaining Gautam Navlakha[xvii].
In a similar fashion, on 6th of June 2018, police arrested 5 activists namely Dr Soma Sen, Surendra Gadling, Mahesh Raut, Sudhir Dhawale and Rona Wilson on the ground of their alleged links with Maoists and charged them under UAPA along with other provision of IPC, for their financial contribution in organizing 'Elgar Parishad' (an event culminated into Koregaon-Bhima riots) to commemorate the contribution of Dalits in the Koregaon-Bhima battle fought on January 1,1818; When the dalits gathered for commemoration, Right-Wing activists led by Hindutva leaders Milind Ekbote and Shambhaji Bhide allegedly attacked them, which led into the incitement of Koregaon-Bhima riots on January 1, 2018[xviii]. Post-violence an F.I.R was filed on 3rd of January 2018 against Milind Ekbote and Shambhaji Bhide for inciting violence. The police, has totally abandoned this line of enquiry despite a number of evidences. Instead, they are following up on an F.I.R. filed on 8 January, 2018 claiming that the violence was made against the speeches made by the members of Elgar Parishad[xix]. However, later as the plot started to thicken, police started claiming that, these 5 members were part of Naxal operation and a letter was found from their possession in which they were planning a 'Rajiv Gandhi type assassination' of PM Modi.
Two former IPS officers with experience in probing cases related to anti-insurgency operations and extra-judicial killings have contested the police's claims of a Maoist plot. Former Jharkhand director-general of police G.S. Rath, who dealt mainly with intelligence on Maoists from 2000 to 2013, said that[xx], "In my career, I never came across Maoists using original names in communications. They stuck to aliases. They use hand-written notes only for political propaganda.... The threat of killing the PM may be an individual opinion of a member but it would have to be cleared by the politburo."
Former Gujarat additional DGP (intelligence), R.B. Sreekumar, who had testified before several probes into extra-judicial killings and the Gujarat riots, said[xxi] that, "These letters seem to be planted. Maoists never use real names. In Gujarat some 22 alleged terrorists, including Ishrat Jahan, were killed in fake encounters that were investigated by the Justice Bedi Commission. In every other case the police would say that they (the accused) were Lashkar-e-Toiba or Hizbul Mujahideen (operatives) and that they were trying to kill then CM (Narendra) Modi."
Of the five arrested, Gadling spent his legal career fighting for those arrested under TADA and UAPA; Dhawale, a dalit activist and editor of 'Vidrohi' magazine, earlier spent his three years in jail on Naxalism charges and was acquitted latter of all charges; Raut, is an anti-mines activist, and led various campaign against mining activities; Shoma Sen is an English professor whose husband was earlier arrested for Naxal links and latter acquitted and Wilson is a Public relations Secretary for the Release of Political Prisoners.
There have been also various cases in which Dalit activists or members belonging to tribal communities when demanding their rights or fighting for their rights in a lawful manner have been dealt with iron hand by the government and have been implicated under false charges so as either to save the police from the pain of further investigation or to prove their faithfulness towards their leader, resulting in custodial tortures or deaths to obtain their confession. Take for instance, Indian government harassment of persons belonging to Dongria Kondh tribe of Odisha, a tribe which protested against Vedanta's mining operation, a project which endangered their lands at the foot of Niyamgiri hills. One of the leaders of protest, Dodi Pusika's daughter-in law was arrested and in exchange for her release whole family including Dodi Posika was made to 'surrender' as Maoist and paraded in front of whole media. Another example is of Soni Sori, a tribal teacher who was arrested for Maoist connection and was cold-bloodly tortured in the police custody and was subsequently released after many national and international campaigns[xxii] Even though there is a remedy available for bail if the charges are not proved against a convict in frivolous cases, but there is no remedy available to restore his honour.
The story of Wahid Shaikh here is worth mentioning as he was arrested in 2006 and charged under UAPA for 2006 Mumbai Blasts case. He was reportedly subjected to various tortures (one of the dreaded torture was of forcing him into a narrow space between two rooms) to sign his confession and lived almost 7 out of 9 years in solitary confinement. He was acquitted of all charges in 2015. "Maine nau saal main is nizam se faith kho diya (I have lost faith in the government and the courts)" said Wahid[xxiii], after acquittal.
At last, these lines by Edmund Burke stand relevant in contemporary Indian times, "People crushed by laws, have no hopes but from power. If the laws are their enemies, they will be enemies to the law; and those who have much to hope and nothing to lose will always be dangerous."
[iii] Terrorist and Disruptive Activities (Prevention) Act 1985, s. 17(4).
[iv] The Prevention of Terrorism Act 2002, s. 49(5).
[v] Sriram Ananthanarayanan, 'Legislating terror' (South Asian Magazine for Action and Reflection, Issue 18, 11 March 2014) http://www.samarmagazine.org/archive/issues/18
[vi] George Anthony, 'Impact of Anti-Terrorism Laws on the enjoyment of Human Rights in India' (2008) LIB IND UPR S1 https://lib.ohchr.org/HRBodies/UPR/Documents/Session1/IN/LIB_IND_UPR_S1_2008
[vii] Acharya, Bhupendra, 'Anti- terrorism Laws in India', (11 October 2010) http://www.legalservicesindia.com/article/article/anti&-8208-terrorism-laws-in-india-382- 1.html
[viii] Maneka Gandhi v Union Of India (1978) 1 SCC 248; Subramaniam Swamy v Union Of India (2016) 7 SCC 221.
[ix] Siddharam Satlingappa Mhetre v State of Maharashtra (2011) 1 SCC 694.
[x] Joginder Kumar V State of UP (1994) 4 SCC 260.
[xi] National Police Commission, Third Report (1980) para 22.2 http://www.angelfire.com/theforce/npcreport/
[xii] Arnesh Kumar v State of Bihar (2014) 8 SCC 273.
[xiii] Rini Johar v State of M.P. (2016) 11 SCC 703; Supra note 7.
[xiv] Arun Ferreira and Vernon Gonsalves, 'How Unlawful activities Prevention Act has eaten up Fundamental Rights' (dailyo, 9 March 2017) https://www.dailyo.in/politics/terrorism-uapa-indian-constitution/story/1/16081.html
[xv] Arup Bhuyan v State of Assam (2011) 3 SCC 377.
[xvi] Special Correspondent, 'Five arrested for 'Maoist Links' in nationwide arrest' The Hindu (New Delhi, 29 August 2018) https://www.thehindu.com/news/national/five-arrested-for-maoist-links-in-nationwide-raids/article24804371.ece
[xvii] Soibam Rocky Singh, 'Raids on activists: Maharashtra police had no answers in courtroom' The Hindu (New Delhi, 29 August 2018) https://www.thehindu.com/news/national/maharashtra-police-had-no-answers-in-courtroom/article24803954.ece
[xviii] TNN, 'Five held; cops claim Maoist links behind Elgar Parishad' The Times of India (Pune, 7 June 2018) https://timesofindia.indiatimes.com/city/pune/link-between-elgar-parishad-and-maoist-money-unearthed-police/articleshow/64486751.cms
[xix] Vakasha Sachdev, 'Why the case for arresting activists for "Maoist Ties" is so weak?' (The Quint, 13 June 2018) https://www.thequint.com/explainers/arrest-of-dalit-activists-under-uapa-gadling-sen-dhawale-wilson-raut
[xx] Phiroze L. Vincent, 'Cops claim Maoist plot on PM' The Telegraph (New Delhi, 9 June 2018) https://www.telegraphindia.com/india/cops-claim-maoist-plot-on-pm-236552#.WxtE6e5xGsU.twitter
[xxii] 'Indian authorities harass tribal leaders' (Survival, 10 May 2017) https://www.survivalinternational.org/news/11682
[xxiii] Zeeshan Shaikh, '2006 Mumbai blasts case: Acquitted after 9 years, Wahid says has lost faith in the system' (The Indian Express, 26 December 2015) https://indianexpress.com/article/india/india-others/acquitted-after-9-yrs-2006-mumbai-blast-accused-wahid-says-has-lost-faith-in-the-system/