During the recent parliamentary debate on the National Investigation Agency (Amendment) Bill 2019, Union Home Minister Amit Shah claimed that the notorious Prevention of Terrorism Act had been repealed in 2004 not because it had been misused but to safeguard vote bank politics. This, despite the fact that the misuse of POTA is well established and its repeal in 2004 was welcomed as a significant step by India towards recognising that counter-terrorism cannot justify the violation of civil liberties and rights of citizens.
By attributing mala fide political intentions to the repeal of POTA, Shah and the Bharatiya Janata Party have made it clear that the space for raising questions about India’s security law status quo has shrunk once again.
The framework of India’s security legislation is not restricted to one or two laws but is instead a persistent logic frequently used against minority communities and dissidents critical of the government of the day. We gained this understanding after the making of a video on the Unlawful Activities Prevention Act in 2017, the fiftieth year since its enactment.
While seemingly present to protect national security, these laws vest unchecked powers in the police to circumvent due process that has been established to protect a citizen’s right to fair trial. These laws place the onus of proving innocence on the accused, which is a breach of natural justice. In principle, they operate as preventive detention laws – even criminalising intentions, beliefs and thoughts of a person, something that is ethically unjustified.
It isn’t just one or two political parties that have upheld this unfair system. Various governments over the years have overseen their abuse. In fact, such provisions and processes can be traced back to the British colonial administration.
Activists like Arun Ferreira, Vernon Gonsalves and others have long advocated the need for a citizen’s movement that questions the very premise of our security laws; who they disproportionately target; the long periods of wrongful incarceration ending in acquittal; the torture undertrials endure during interrogation; and the overarching infringement of our fundamental rights, especially those under Article 19 and Article 21.
The arrest of activists, lawyers, writers in connection to the Bhima Koregaon incident is the latest evidence of misuse of such laws that have come to public attention. There are many other cases that have not made the headlines, with the accused struggling to get bail even years after arrest.
The misuse of security laws, regardless of what the Home Minister says, is widespread.
In light of the National Investigative Agency (Amendment) Bill 2019 and the proposed Unlawful Activities (Prevention) Act Amendment Bill 2019, we are reminded once again of the urgent need for a collective response.
The timelines presented here map the history of security laws in India, from the colonial era to the present day. The first part is a brief overview of major national security laws in independent India. The second covers the overlapping features of colonial laws to present-day security laws.
The trajectory of these legislations demonstrates that the rationale used to persecute freedom fighters during British colonial regime endures in present-day India. At the receiving end now are minority communities, Dalits, indigenous communities, trade unionists, those living in states with separatist movements, journalists, activists, students and artists. Given the history of how these laws are applied and whom they are applied against, it is unlikely that the new amendments will operate in the interest of national security as the government claims. It is far more likely that they will be used to curb dissent.
India’s security laws in brief
The Preventive Detention Act was passed as a temporary measure to deal with the challenges posed by violence and displacement during Partition. The law authorised the government to detain individuals without charge for up to a year.
When introducing the Preventive Detention Act as a temporary, 12-month version, the Minister of Home Affairs at the time said that permanent preventive detention powers “required closer study” before more lasting legislations could be passed.
However, the Act was annually reviewed by Parliament and renewed repeatedly for almost two decades before finally being allowed to expire in 1969.
The Armed Forces Special Powers Act was enacted in 1958 to address separatist movements in Nagaland. It empowered the military to act alongside the police in designated “disturbed areas” while giving soldiers greater power to use force against civilians than the police are allowed.
In 1972, it was extended to all seven states of the North East of India. Between 1983 to 1977, an iteration of AFSPA was in force in Punjab and in 1990, the Act was introduced in Jammu and Kashmir.
AFSPA has proven to provide institutional impunity for human rights violations committed by state forces. In the process, it has played havoc in the lives of generations of civilians in many parts of the country.
When Nehru’s government passed AFSPA in Parliament, Surendra Mohanty, a dissident MP from Orissa, told the house: “We want a free India. But, we do not want a free India with barbed wires and concentration camps, where havaldars [sergeants] can shoot at sight any man”.
The government supplemented the preventive detention powers under the Preventive Detention Act with the Unlawful Activities Prevention Act, which gave it the power to declare organisations “unlawful” and then limit and scrutinize members to a significant degree.
The term “unlawful” was from the very beginning vaguely defined, facilitating the law to criminalise a broad spectrum of activities, which the government of the day found inconvenient.
Under UAPA, bail is notoriously difficult to obtain. Accused persons can be held in custody for six months without a charge sheet even being filed. In comparison, people accused of murder can get bail within three months of arrest if the entirety of the case is not revealed to them.
As a preventive detention law, UAPA has been misused rampantly and has led to politically motivated detentions and human rights violations. Unlike the Preventive Detention Act, the UAPA discarded the periodic review clause, thus making it valid indefinitely, unless repealed in Parliament.
The Maintenance of Internal Security Act was established immediately after the lapse of the Preventive Detention Act in 1969. The preventive detention powers of the older law was reinstituted under a new name and eventually strengthened in 1975 when Indira Gandhi’s government declared a national emergency.
MISA was aggressively used against political opponents, trade unions and civil society groups that challenged the government. MISA was repealed after the Congress government was defeated in 1977.
The National Security Act is a special law instituted in 1980, and is popularly known as the law of “no vakil, no appeal, no daleel” (no lawyer, no appeal, no argument). It is similar to the Prevention Detention Act and the Maintenance of Internal Security Act in its preventive detention powers and closer to the Unlawful Activities Prevention Act in not requiring a periodic review, despite grave human rights concerns.
The law gives power to the central and state governments to detain individuals for a maximum period of 12 months. Under the Act, a person can be detained for up to 10 days without even being informed about the reasons for the detention. The government is allowed to withhold information supporting the detention in “public interest” and a detained person is not allowed a lawyer during this period.
The National Security Act is one of the most draconian laws operating in the country, and is easily prone to misuse.
The Terrorist and Disruptive Activities Prevention Act was instituted in the mid-1980s when separatist movements gained momentum in the country, especially in Punjab. “Disruptive activities”, whether “by act or by speech, or through any other media” was a vague definition under TADA that encompassed a wide variety of activities, including any form of protest.
Under the law, special TADA courts were set up to prosecute those accused of terrorist activities in areas designated by the national government as “terrorist affected areas”. TADA created new criminal offenses, enhanced procedural powers for the police and reduced protections for defendants. Under TADA, confessions made before police officers was admissible as evidence, which facilitated custodial abuse and torture.
In the guise of fighting terrorism, the law was used to detain marginalised communities as well as against trade unions. Over 76,000 people were arrested while TADA was in force from 1985 to 1995. The conviction rate for these arrests was less than one percent, which meant thousands were wrongfully incarcerated.
In the wake of terrorist attacks on the World Trade Center on September 11, 2001, in the US, the ruling National Democratic Alliance proposed the Prevention of Terrorism Act as the new anti-terror law. The Bill was enacted in a Joint Session of the Parliament, despite stiff opposition from civil society.
The Prevention of Terrorism Act reinstated many provisions of the Terrorist and Disruptive Activities Prevention Act thus ensuring a continuum of misuse of security laws. POTA incorporated TADA’s enhanced police powers, limits on the rights of defense, confessions made in police custody admissible as evidence and setting up of Special Courts.
Like the laws that had preceded it, POTA defined “terrorist” and “terrorist activities” vaguely. This allowed for discriminatory applications. For instance, a law like POTA has never been used against Hindu nationalist groups suspected in terror attacks against minority communities.
The National Investigation Agency Bill was passed in 2008, less than a month after the Mumbai terror attacks. The NIA Act sanctioned the formation of a central agency –
the National Investigation Agency – to probe terror cases in any part of the country.
It authorises the establishment of Special Courts to prosecute cases, which has in the past proved grounds for abuse, as evidenced under the Terrorist and Disruptive Activities Prevention Act. Furthermore, the list of offenses in NIA overlap with those in the Unlawful Activities Prevention Act 1967.
This makes room for offenses under UAPA to be prosecuted in Special Courts, although UAPA does not have provisions for such Courts. Under National Investigation Agency proceedings, (like TADA previously) the identities of witnesses can be kept secret, which forecloses cross-examination on behalf of defendants. This makes the trial patently unfair.
The Prevention of Terrorist Activities Act was repealed in 2004 amidst public outcry against its misuse. But alongside repealing it, the government amended the Unlawful Activities Prevention Act, 1967, to serve as an omnibus preventive detention law. The amended UAPA made changes to the definition of “unlawful activity” to include the definition of “terrorist act” and “terrorist organisation” from the repealed POTA.
After the terror attack in Mumbai on November 26, 2008, more provisions similar to POTA and TADA regarding maximum period in police custody, incarceration without a charge sheet and restrictions on bail were incorporated into the UAPA. A sunset clause ensures that when there is a drop in the perceived threat, there would be no need for the extraordinary legislation to continue. Like the National Security Act, the UAPA does not have this clause.
Colonial to Contemporary
Colonial: An 1818 Bengal Regulation was one of the first preventive detention laws in colonial India. In the name of preserving security of the state, it gave authority to place individuals “under personal restraint” notwithstanding the lack of “sufficient ground to institute any judicial proceeding”. The 1818 regulation was ultimately extended throughout India and remained in force until at least 1927. It was used to detain those with nationalist sympathies in pre-independent India.
Contemporary: All preventive detention laws in India mirror this regulation in its principles of criminalising dissent and in the lack of having to prove suspicions to a standard of proof as present in ordinary law.
Colonial: Defense of India Act 1919 & 1935 (lapsed in 1946) were the wartime “emergency code” adopted from Britain. At the outset of World War II, the government adopted the power to preventively detain anyone whose conduct was likely “prejudicial to the defense of British India, the public safety, the maintenance of public order, His Majesty’s relations with foreign powers or Indian states, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war.”
Contemporary: Independent India drafted its own Defense of India Act in 1962. This emergency wartime preventive detention law corresponded to the World War II Defense of India Act of 1939, in letter and spirit. The 1962 iteration was infamously used against Indians of Chinese ethnicity, mostly residents of West Bengal. While the war between India and China lasted barely a month, those interned stayed in jail for many months after.
Colonial: The Rowlatt Act conferred authority to order the preventive detention of individuals for up to two years based on suspicion, especially in parts designated by the government as “affected areas”. But the law did not define what constituted “anarchical and revolutionary movements” that it sought to combat.
The Act eliminated the right to appeal and denied the right to representation by counsel. With the extension of its draconian wartime powers into an ordinary, non-emergency period, the Rowlatt Act became a focal point of the Non-Cooperation campaign led by M. K. Gandhi in the early 1920s.
Contemporary: The Rowlatt Act in its substantive powers and circumstances of enactment fore- shadowed issues that have risen with Terrorist and Disruptive Activities (Prevention) Act (1985-1995) and Prevention of Terrorism Act (2001-2004). In its lack of definition of what constitutes “anarchical and revolutionary movements”, it mirrors the Unlawful Activities Prevention Act for the vague use of the term “unlawful”. In the designation of “affected areas” – where detention laws receive broad leeway – the Rowlatt Act can be considered a precursor to Armed Forces (Special Powers) Act and TADA.
Colonial: During the Civil Disobedience movement in the 1930s, repressive powers of the police were intensified by issuing ordinances. For example, an ordinance was passed that authorised bans of associations designated as “unlawful”. Other ordinances authorized warrantless searches, indefinite detention, ban on nationalist newspapers, and confiscation of property from associations the government declared unlawful.
Contemporary: The Unlawful Activities Prevention Act resonates with these ordinances in its designation of certain organisations unlawful, thus banning and outlawing, without review, selective associations of citizens.
Colonial: It established elected, semi-autonomous provincial governments and explicitly granted provincial legislatures authority to enact preventive detention laws of their own. Initially, Congress-led governments resisted enacting such laws but eventually relied on the same measures as the British to maintain control.
After the lapse of Defense of India Act 1939, the provincial governments kept the same principles alive by enacting “Public Safety Acts” authorising preventive detention in the absence of a formally declared emergency.
Governors were authorized to legislate by ordinance to deal with “any persons committing, or conspiring, preparing, or attempting to commit, crimes of violence” intended to overthrow the government. This broad sweep of emergency powers conferred upon the Governor General by the 1935 Act led Winston Churchill to famously describe them as “likely to rouse Mussolini’s envy”.
Contemporary: The colonial state viewed every Indian as a potential criminal and “unlawful” agent working to destabilise the regime. This mentality seamlessly transitioned into post-independence India.
Colonial: Lord Linlithgow, the viceroy of India, enacted the Armed Forces Special Powers (Ordinance) on August 15th 1942 to suppress the Quit India Movement launched by M. K. Gandhi. Thousands were killed during police firings on Indian protestors and many more were jailed.
The ordinance stated: “The use of force against any person... shall include the power to arrest and take into custody such person, and the use of such force as may be necessary, even to the causing of death, in order to effect such arrest.”
Contemporary: The Naga insurgency began post-independence in 1954. To suppress this movement, Nehru’s government passed the Armed Forces (Special Powers) Act in 1958. PM Nehru echoed Churchill and Linlithgow and said: “No infirm government can function anywhere. Where there is violence, it has to be dealt with by government, whatever the reason for it may be.”
The brutalities unleashed by Indian soldiers in Nagaland were as ruthless as the British force in India. AFSPA has since been applied in all the states of the North East, Punjab and Jammu and Kashmir.
These timelines are based on Colonial Continuities: Human Rights, Terrorism and Security Laws in India by Anil Kalhan, and National Security Laws in India: The Unravelling Of Constitutional Constraints by Surabhi Chopra. For further reading, refer to The Terror of Laws (PUDR) and Framed Damned and Acquitted: Dossier of a Very Special Cell (Jamia Teacher’s Solidarity Association).