SPEAKING FREELY Securing the Indian state from the people
By Ninan Koshy
Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click hereif you are interested in contributing.
The day that the "Iron Lady" of Manipur, Irom Sharmila, who for the past 12 years has been waging a battle for the repeal of the much-dreaded Armed Forces Special Powers Act (AFSPA), was hauled up before a Delhi court on the farcical charge of attempting to commit suicide, senior Jammu and Kashmir Congress leader Saifuddin Soz came out in support of Chief Minister Omar Abdullah's long-standing demand for the repeal of the Act.
Tuesday's killing of a youth in Baramulla, allegedly by security
forces, compelled the Congress leader to do so. It is not only the AFSPA that needs to be repealed; other laws in the National Security Statues of India also need to be scrapped.
In March 1984, on a visit to Colombo, I met Lalith Athulathmudali, on the day he took charge as the first Minister of National Security in Sri Lanka. I asked him what the portfolio of national security meant when there were already ministries for defense, home and foreign affairs. He laughed and then said seriously, ''It is everything''.
National security doctrine was developed in the United States at the beginning of the Cold War. It began with an attempt to bring the various dimensions of foreign policy and military affairs together. With the new doctrine, anything that happened in any part of the world became a matter of national security for the US. Soon the Soviet Union had its own national security doctrine.
National security doctrines became useful for all authoritarian regimes and dictatorships, like those in Latin America, Asia and Africa. Some states called it "total security", meaning that this doctrine guides all activities of the state and controls all those of its citizens. This was what Athilathmudali had in mind when he said, ''It is everything''.
Rather strangely, India's national security institutions - the National Security Council, National Security Advisory Board and National Security Advisor - were put in place only when India became a nuclear weapon state in 1998. This not only gave the impression that nuclear weapons were indispensable for national security, but also that national security is synonymous with the possession of nuclear weapons.
India's National Security Advisor, Shivasankar Menon, told a P C Lal Memorial Lecture on ''The National Security Challenges and Issues'' to the Air Force Association on April 2, 2012: "For a nation undergoing social and economic changes at a rate unparalleled in its long history and where expectations are rising exponentially, India as a society is remarkably at peace it with itself.''
If India is "a society remarkably at peace with itself", one may ask why the panoply of draconian laws in the name of security?
Security laws in India seem to be enacted and applied on two assumptions. One is that sections of the people are enemies of the state, and the regime should be secured against them. The second assumption is that democracy needs to be protected from itself. It has to be secured from the openness and freedom which democracy allows. In this disturbing logic, undemocratic means are required to safeguard democracy. This also assumes that the interests of democracy can be folded into that of state security.
The notion that state security can be reduced to regime security or the security of a particular government was thrust upon the Indian system, by the Emergency, a 21-month period from June 1975 to March 1977 when president Fakhruddin Ali Ahmed, upon request by prime minister Indira Gandhi, declared a state of emergency under Article 352 of the constitution of India, effectively bestowing on her the power to rule by decree.
The Emergency led to the legitimization of the use of emergency powers and security laws which go against the tenets of democracy. India's democratic institutions were suspended and fundamental rights enshrined in the constitution were violated on a massive scale. The Supreme Court betrayed the nation by abjectly justifying all this. Opposition to the Indira Gandhi government was recast as threats to the national sovereignty of India, thus giving an anti-people twist to the notions of nation and state. The regular additions to the plethora of security laws today give the impression of a creeping emergency in the country.
What is striking is that the draconian security laws India has are in general a continuation of the laws in the colonial times enacted to control a rebellious population fighting the British Empire. Some of them have been renewed or revised in the light of neo-imperialist notions of security.
The state's power to enact laws to maintain public order is not in question. What is questionable is when such laws go beyond reasonable limits in the name of security endanger people's security. It is when the extraordinary becomes the routine that the problem arises. Extraordinary laws have been used to target political opponents, human-rights defenders, religious minorities, Dalits, tribal communities, the landless and other poor, disadvantaged people.
The Prevention of Terrorism Act (POTA) 2002, made in the aftermath of terrorist attacks in Washington and New York and the attack on the Indian Parliament, was a statute built upon a long tradition of anti-terrorism and security laws, dating to well before independence. It was also influenced by the Counter-Terrorism resolution of the UN Security Council 1371 on 28 September 2001 - a resolution misused by several states to curtail fundamental rights - and the US's Patriotic Act.
POTA's definition of what constituted a terrorist act was too broad, criminalizing even political activism. The law permitted prolonged detention without charge and reversed the presumption of innocence which is the bedrock of the criminal justice system. In line with the Congress-led coalition's Common Minimum Programme, which vowed to launch terror-specific laws, the Manmohan Singh government repealed POTA. But in an unexpected act of betrayal, the government also reintroduced some of POTA's stringent provisions in an altered version of Unlawful Activities (Prevention) Act, and then amended the law a second time in the wake of November 2008 Mumbai terror attack.
A number of important human-rights issues are raised by anti-terrorism laws in India. The basic problem is a vague and ambiguous definition of terrorism that fails to satisfy the principle of legality, Pre-trial investigation and detention procedure infringe upon due process and personal liberty. Enforcement is often arbitrary and selective on the basis of religion, caste, tribal status etc. Hundreds of innocent persons have been incarcerated under these laws, many without trial for years and then released.
A day after his release from jail, 26-year-old journalist Muthi-ur-Rahman Siddiqui accused the police of harboring an "institutional bias" against the Muslim community. Siddiqui was arrested by the crime Branch of the Bangalore Police, along with 14 others, in August 2012 on charges of plotting to assassinate prominent Hindutva (roughly, a form of nationalist Hinduism) leaders as well as some journalists. The National Investigating Agency, which later took over the case, found no evidence against Siddiqui. Thirteen others arrested along with him are still in jail. This is only a recent example of the cruel misuse of the Unlawful Activities (Prevention) Act.
The AFSPA is taken straight out of the colonial statute book. It is based on a British ordinance - Armed Forces (Special Powers) Ordinance 1942 - aimed at containing the Indian independence movement during the time of World War II. The Act, enacted in 1958 for application in North East India, is still in force there and from 1990 in Jammu and Kashmir.
The Act allows the government to define, at its discretion - its language is deliberately vague - and without judicial review, an area as disturbed and empowers the armed forces to shoot to kill, conduct warrantless searches and arrests, arbitrarily detain people and demolish structures in order to maintain public order. The Act provides de jure impunity to the armed forces. No legal proceedings can be brought against any member of the armed forces acting under AFSPA without prior sanction from the central government, which is almost impossible to obtain. The rule of the Army has a drastic effect on the daily life of the average citizen.
The Act has legitimized a series of gross human-rights violations in northeast India and in Jammu and Kashmir, where it is in operation. Fundamental rights, such as the right to life (article 21), the right to a fair trial, the right to remedy and reparation and to peacefully assemble and protest as well as a series of economic, social and cultural rights, have been systematically violated in the area where the act is in operation. There have been several documented instances of the use of force causing death by the army in disturbed areas in the northeast and in Jammu and Kashmir.
It is no wonder that people in these areas consider the Indian Army an occupying force, adding to the sense of alienation from the Indian nation. The resentment is deep and widespread and the authorities are totally insensitive to the issue as shown by the cynical indifference to the poignant witness of Irom Sharmila of Manipur.
Prime Minister Manmohan Singh has expressed the need for reviewing the AFSPA. But the government has taken no action on the Jeevan Reddy committee's recommendations for changes in the Act. One thing is very clear. Any change to the AFPSA, that seeks even to moderate the powers given in it to the armed forces or its partial withdrawal, will be vehemently opposed by the army and the Ministry of Defence.
That the army personnel are above the ordinary laws of the country was once again shown in the Criminal Law (Amendment) Order 2013 on offenses against women. Contrary to the recommendations of the Justice Verma Committee, the ordinance on sexual assault does not include any reference to the AFSPA. The committee had suggested that sexual crimes by armed forces should be tried under ordinary criminal law but it was rejected by the Defence Ministry and the Army.
The most blatant way in which the colonial mentality is buttressed in the Indian legal system today, is in the offense of sedition in section 124A of the Indian Penal Code (IPC). This was the section used by the British masters against the stalwarts of India's freedom struggle, including Mahatma Gandhi and Bal Gangadhar Tilak. This provision stipulates that whoever excites "disaffection" towards the government established by law in India shall be punished by imprisonment for life.
The validity of this provision was upheld in the Kedarnath Case in 1962. The Supreme Court held that "strong words used to express disaffection of the measures of Government with a view to their improvement or alteration by lawful means would not come under this section and that prosecution under sedition laws should be conducted only in cases where there is incitement to violence".
Justice Rajinder Sachar, former chief justice of the Delhi High Court and defender of people's rights and security noted, "with regret", that "the Supreme Court refused to recognize the difference between the state and the government. Disloyalty can only be to the Indian State. But to spread disloyalty peacefully to the government because it is considered to have anti-people policies is the very foundation of a vibrant democracy.
''Disloyalty to a government is different from disloyalty to a state. But alas, because of the Kedar Nath Singh case the police confidently go on resorting to Section 124 against social activists and being non-bailable, the courts as a routine deny bail and the activist remains in jail for years even without the trial starting. A greater degree of human rights violation is hard to imagine". Our highest court has reduced state security to regime security.
This provision has been used against a number of human-rights activists, journalists and public intellectuals in the country. Among them are Arundathi Roy, Binayk Sen, and Udaya Kumar, the leader of the anti-nuclear Kudankulam agitation. When the Supreme Court has laid down clearly that the provisions of section 124 A are applicable only when there is a tendency to public disorder by use of violence or incitement to violence, how is that so many cases and First Information Reports (FIRs) continue to be registered against the media and others for their speeches and writings?
The Report of a Seminar conducted by the Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore and Alternate Law Forum, Bangalore, in February 2011, is entitled "Sedition Laws: the End of Free Speech in India''. The Report has raised important questions on the undemocratic nature of the laws and their validity in a constitutional democracy like ours.
The law on sedition is being used to stifle any dissenting voice and prevent any exploration of an alternate political philosophy which goes against the ideas of the regime. The right to free speech in democratic India is held hostage to an old colonial law, enacted under entirely different circumstances. There is absolutely no justification for a draconian law of this kind in independent India.
The Information Technology Act is the latest addition to the statutes book undermining the constitutional right to freedom of expression. A national daily reported recently.
"On February 6, 2013, Sanjay Chaudhary was arrested under Section 66 A of the Information Technology Act for posting 'objectionable comments and caricatures'', of Singh, Union Minister Kapil Sibal and Samajwadi president Mulayam Singh Yadav, on his Facebook wall.
This arrest follows numerous others over the past few months for political speech through social media: Manoj Oswal for having caused 'inconvenience' to relatives of Nationalist Congress Party Chief Sharad Pawar for allegations made on his website, businessman Ravi Srinivasan in Puducherry for an allegedly defamatory Tweet against the son of Union Finance Minister P Chidambaram; Asseem Trivedi accused of the violation of the IT Act for drawing cartoons lampooning parliament and the constitution to depict its ineffectiveness.
However, the incident that rocked the nation was the arrest last November of two young women, Shaheen Dadha and her friend Renu Srinivasan, in Mumbai for a comment posted on Facebook that questioned the shutdown of Mumbai following the demise of Shiv Sena Supremo Bal Thackeray. The girls were arrested under Section 66 A(a) of the IT Act for allegedly sending "a grossly offensive" and "menacing" message through a communication device.
Kerala cyber-police on Sunday, February 24, booked a total of 111 people for allegedly defaming PJ Kurien, deputy chairman of Rajya Sabha who is reportedly involved in the Suryanelli gang-rape case, in Facebook postings. In addition to the person who posted the allegedly defamatory comment, the other 110 people booked have been charged under Section 66 A of the IT Act.
Several Public Interest Litigations (PILs) have been filed challenging the constitutionality of Section 66A of the IT Act. Obviously the provision is a clear violation of articles 14, 19 and 21 of the Constitution, the right to equality, the right to freedom of expression and the right to life.
The most condemnable use of security provisions, related to sedition laws currently in force, is against the peaceful agitators against the Kudankulam nuclear plant in Tamil Nadu. The Tamil Nadu government has filed 325 cases including sedition, waging war on the Indian state and on other sections of Criminal Procedure Code and Indian Penal Code, with 5,296 named as accused and even larger number unnamed accused at one police station alone near the plant site.
The struggle in Kudankulam is one of the most remarkable people's struggles in independent India. It is a peaceful agitation of the people around the plant to secure their rights for survival and livelihood - yes, people's security. There has been a ruthless attack on the struggle by the State with the machinery at its disposal, political, administrative and police. In addition to the continuing physical harassment and attacks, as we mentioned thousands of police cases have been foisted upon the agitators, charging them with ''sedition'' and ''war against the State''.
Our prime minister said in his New Year Message of 2013, said: "Our democracy is our strength. It is the basis of our unity. It is also the most important guarantor of internal security". His government has failed miserably to apply this principle to governance in the country.
Ninan Koshy is a political commentator based in Trivandrum, Kerala, India, and formerly Visiting Fellow, Harvard Law School. He is the author of War on Terror: Reordering the World and Under the Empire: India's New Foreign Policy.
Speaking Freely is an Asia Times Online feature that allows guest writers to have their say. Please click hereif you are interested in contributing.