Exception becomes the norm as special laws are misused | Pankaj Butalia

by Pankaj Butalia

September 20, 2020

Delhi Police’s framing and subsequent reframing of charges, using UAPA (Unlawful Activities Prevention Act), against the young women of Pinjra Tod a few months ago is an example of the gross misuse of special laws enacted by the state for circumstances which lie outside the purview of ordinary laws. By definition such laws are meant to be temporary and exceptions but end up being permanent and the norm.

Over the years we have accumulated a plethora of such extraordinary laws, at both the central and state levels. Such is the fascination with these ‘extraordinary’ laws that even the judiciary no longer questions their misuse.

As has been the case so often in this country’s history, it was the Congress which set this ugly ball in motion. In 1971, Indira Gandhi passed MISA (Maintenance of Internal Security Act). It later proved to be very useful in putting two strange bedfellows, the communists and the Jan Sangh behind bars during the emergency. The end of the emergency saw MISA being repealed by the Janata Party of which the Jan Sangh was a part. Interestingly, the short stint that well placed Indian politicians spent in jail between 1975-77 made them suddenly aware of the fact that hundreds of thousands of ‘undertrials’ had been in prison for periods which were sometimes much more than the maximum sentence their crimes would have attracted. The Supreme Court also woke up to the plight of ‘undertrials’ and a clean-up of the system started.

But it was too good to last, and the politician’s impatience with the judicial system it had itself created led to the Jan Sangh’s successor, the BJP, taking up laws intended primarily to bypass judicial scrutiny. With a willing partner in the Congress and other equally authoritarian state-level political parties, the Indian system has seen a slew of Acts passed over the past forty years, all of them much more repressive than MISA.
It would take too much space to list all these in detail here. Their acronyms are enough — so deeply engrained are these in the psyche of the common person: POTA, TADA, ESMA, COFEPOSA, PSA, NSA, AFSPA, UAPA or their state level counterparts like MCOCA, GUJCOCA and KCOCA. Some have been repealed, only to be substituted by more repressive ones — compromising individual liberty. More than a year on, citizens of the country in J&K continue to be denied elementary rights. Those arrested for the Bhima-Koregaon/Elgaar Parishad case have not even got bail even as the prosecution is in no hurry to file the case a year and a half later. The idea is to intimidate and paralyse those who would question state policy. UAPA, for instance, was supposed to be a ‘preventive’ law intended to pre-empt certain ‘unlawful’ activities. It is not as if the criminal code did not contain preventive detention. But these were bailable and the burden was on the state to prove guilt or suspected intent. Under UAPA all that is overturned.

Under UAPA and NSA (National Security Act), bail can be denied almost indefinitely. In many cases, the state is not even under any obligation to present a credible case to the court nor frame charges in a time bound manner. Thus, both UAPA and NSA become easy tools with which anyone can be arrested and denied bail for indefinite periods. Laws and courts the world over have insisted on procedure — which remains the only protection an individual has from the overwhelming might of the state. But with this litany of laws which are slowly getting entrenched in the system, the relationship between crime and punishment is getting obliterated.

A year ago, a forest rights activist told me that corrupt forest departments threatened by exposure of their corruption had found a simple system of keeping activists away — just file charges against them and the adivasis in various courts all over the state. It would be a matter of time before the complex web of absentee lawyers, delayed proceedings, incessant adjournments exhausted even the most dedicated activist and lead to unfettered control by the very same corrupt forest mafias.

What is sauce for the goose must be sauce for the gander because the counterparts of the forest officials have found laws by which they can lock up all those who would oppose state policies under obscure laws which serve not the Constitution judges are sworn to protect but those who would rule by exception.

Pankaj Butalia is a Delhi-based filmmaker

(Courtesy: The Times of India)