A constitutional democracy like India subsumes a diversity of voices in its political process. A wide spectrum of ideas competing for popular acceptance should be at the core of a democracy. The Indian version of democracy, however, violates this basic idea by banning some political ideologies. The ban then leads to criminalising people associated with those ideologies. By defining some political views out of the democratic process, the state sets up the first basis for undermining its own democratic credentials.
The so-called three pillar conception of democracy—the legislative, executive and judiciary— is expected to provide checks and balances to guard against abuse of power by any one of the three arms. The very idea implies that each of the arms is prone to excess. Over the last several decades, in the name of combating terror or insurgencies, the Indian state has sought to meet political challenges to its legitimacy by empowering itself with arbitrary powers. With the promulgation of public security acts in various states, the Armed Forces Special Powers Act (AFSPA), and the Unlawful Activities Prevention Act (UAPA), the executive arm has empowered itself disproportionately. As Giorgio Agamben explains in his seminal book State of Exception, when the military authority’s wartime powers are extended to the civilian sphere, it soon leads to suspension of the constitution.
‘Law encompasses living beings by means of its own suspension’ and soon exception becomes the rule. In Kashmir, North East and Central India, we are witnessing the abuse of such acts with great impunity. The way lower courts in India operate, they strengthen the impunity and lawlessness that has characterised Indian law enforcement agencies. A fact-finding team from Telangana comprising high court lawyers, Dalit and Adivasi rights activists, research scholars, and a journalist was picked up from the State by plainclothes policemen from Chhattisgarh on December 25, 2016 and booked under the Chhattisgarh Special Public Security Act (CSPSA). When their second bail petition came up for hearing in the Dantewada District Court, neither the public prosecutor assigned to argue the case, nor the police who filed the case ensured the documentation required was presented to the court and the defence lawyers. The case diary itself was not presented.
They had to be given several hours to fetch the case diary and the panchnama reports. The prosecutors refused to share any of the records including the seizure reports. The defence lawyers were supposed to defend their clients flying blind, without any information about what they are being accused of. The charges were filed under the CSPSA without following due process prescribed under that Act. The accused were caught in Telangana but the police claimed the arrest was made in Chhattisgarh. The public prosecutor even accused them of entering Chhattisgarh “without permission”. Now, for the lower courts, neither the patently false charges, nor the violation of the Act itself matter. The judge listens to the arguments and rejects bail because they have been charged under “serious” provisions of CSPSA. It is rare for a judge to question the need to invoke CSPSA in the first place. To be charged under the Act itself becomes the justification.
No further fact or proof is necessary. Additionally, the system was under severe political pressure to refuse bail as, for the first time, lawyers and civil society activists were going on a factfinding mission to investigate the atrocities perpetrated on Adivasis by the state agencies. People who speak for the rights of Adivasi and against rights violations perpetrated by state agencies have to be silenced with threat s o f long incarceration. In Binayak Sen’s case, reminding the lower courts that India is a democracy, the Supreme Court said mere possession of literature or being a sympathiser of a banned organisation is not a crime. In Anup Bhuyan’s case, the apex court said membership of a banned organisation is not a crime, unless the individual directly incites violence or participates in violent activities.
Recently, Prof. G N Sai Baba and four others have been handed life sentence for their association with Maoists by a sessions court in Gadchiroli, Maharashtra. The UAPA was invoked. Again, the state is not obliged to prove what has been seized from the accused. And whether such seizures prove any violent crime was committed by them is not even debated at the lower rungs of the judicial process. Earlier judgments of the apex court do not seem to matter. Invocation of the UAPA itself appears sufficient to justify denial of bail. Special police forces have complete freedom to detain anyone and charge them under these Orwellian laws that are supposed to protect public security. They are under no obligation to follow either the norms set out by the Supreme Court for invoking these laws, nor are they obliged to prove anything at the lower courts.
The victims have to wade through this insensitive legal system for years and give up several years of their lives before their case reaches the apex court. Neither the police who have falsely charged people under these laws, nor the judges who play along with the local police and the politicians have ever received more than a rebuke from the apex court. So it is imperative that such acts which confer wartime military powers in perpetuity to civilian governments are revoked to stop this erosion of the moral core of our democracy. Though in the name of law and order, “exceptionally broad regulatory power … granted to the executive” may be compatible with democracies in the short-term, Agamben says systematic use of such practice will necessarily lead to the “liquidation” of democracy.
Padmaja Shaw
A retired journalism professor, Osmania University
Email: padmajashaw@gmail.com