In June, the Supreme Court sent an important reminder on growing misuse and misapplication of extraordinary legislations in ordinary cases.
The court was hearing a case involving a clash between two parties in 2023 in which the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 was invoked.
It noted that such legislations cannot be wielded as instruments of harassment, particularly where political motivations may be at play. The constitutional guarantee of personal liberty acquires even greater significance when stringent extraordinary legislations are invoked, the court observed.
The bench said that the guidelines, framed by the Uttar Pradesh government in compliance with a Supreme Court ruling, to invoke the gangsters act were not met either. These guidelines included evidence of coordinated criminal activity and proof of violence, threats or intimidation.
The judgement criticises a troubling pattern: the growing normalisation of special laws in everyday policing and governance.
For instance, in 2021, the National Security Act, 1980, was invoked against Manipur journalist Kishorechandra Wangkhem, to detain him for a Facebook post criticising the state government, despite no evidence of any real threat to public order or national security.
Similarly, the misuse of anti-terror and preventive detention laws, has been well-documented.
According to a draft report by the Peoples Union for Civil Liberties analysing the National Crime Records Bureau data for 2015-2020, a total of 5,924 cases were registered under the Unlawful Activities (Prevention) Act, 1967 and 8,371 individuals were arrested during that period. Of those arrested, only 235 were convicted, yielding a conviction rate of 2.8%.
The frequent invocation of special laws suggests that a tool originally designed for exceptional circumstances has now been reduced to a routine instrument of state control. From preventive detention laws to anti-terror statutes, the use of exceptional legal frameworks has become routine and normal.
The most striking sign of this drift came recently from the Supreme Court itself, which commended the use of preventive detention against cyber offenders, stating that regular laws were proving inadequate.
But this is deeply problematic. It has a corrosive effect on the criminal justice system.
The failure of ordinary laws to deliver justice efficiently cannot justify a shift to draconian laws that erode civil liberties.
Logistical nightmare
The growing reliance on special laws to address everything, from organised crime and financial offences to cow slaughter and online speech, has created serious logistical strain on the criminal justice system.
Indian institutions are already struggling to enforce general laws, with overburdened judges, undertrained police and inadequate legal infrastructure.
Expecting them to apply the heightened safeguards that special statutes demand is unrealistic. Special laws require precision, restraint and procedural rigour, but in practice, they are enforced indiscriminately, resulting in widespread violation of rights.
This casual reliance on special laws renders ordinary or general legislations obsolete. A first information report peppered with sections of the UAPA or National Security Act alters the entire process.
Once invoked, bail becomes harder, trials become longer and the burden of proof is reversed. The special law procedure overrides general procedure, turning the process itself into a punishment. Even when higher courts eventually strike down these charges, the damage is already done.
Colonial baggage
India’s preventive detention and public order laws, trace their lineage to colonial governance, when the British deployed extraordinary powers to suppress rebellions. Founded in colonial fears of insurrection and disorder, these legislations were drafted not to adjudicate discrete offences, but to manage large populations deemed potentially disloyal or unruly.
The colonial rulers created a policing regime built on summary detention, limited judicial scrutiny, suspicion and preventive control. By adopting these as standard tools, we risk importing the very authoritarian ethos that the Indian Constitution sought to displace.
The Supreme Court’s judgement is a reminder that it is time to reassert that special statutes are exceptions, not norms.
Democratic governments are meant to govern by consent and accountability, not fear and exceptional power. The proliferation and routine use of special laws reveals not just a failure of law enforcement, but a deeper political failure: a refusal to build systems that work. If we continue to sacrifice due process on the altar of expediency, we will undermine the very liberties we claim to protect.
Eesha Shrotriya and Shantanu Pachauri are Assistant Professors and Co-Directors at the Centre for Criminal Justice Studies, School of Law, RV University, Bengaluru.
