Indian legal system produces unlawful laws

The laws based on personal agenda to maintain and retain power have paved the way for civil unrest

Law and order have always perceived as a relative situation although it meant to serve the purpose of maintaining order and peace, it has been observed that laws are not always enough to keep harmony in society. Law made by man for man has a coherent tendency to create craves between state and society.

The textbook example of that is Indian laws named UAPA, TADA, and POTA. These three laws created for the safety of society have been immensely used to subjugate the population of India and have been criticised by the civil society that named these laws as “Draconian Laws”.

Let me give you a review of these laws that are being used ruthlessly nowadays by BJP government to subjugate Indian population.

Unlawful Activities Prevention Act (UAPA) was established in 1967 and got blame to be linked with the political change in India. The second one, the Terrorist and Disruptive Activities Prevention Act (TADA) was introduced in 1985. And the third infamous law Prevention of Terrorism Act (POTA) came in being in 2002.

Due to the inhuman aftermaths and hue and cry of humanitarian sectors, the Terrorist and Disruptive Activities Prevention Act (TADA) got stop in 1987 leading to the repeal of the Terrorist Prevention Act (POTA) in 2004. Leaving one law, the Unlawful Activities Prevention Act (UAPA) fully operational to date.

Being the only one to cater to hate crimes, any act that is unsuitable for the establishment has narrow scope to encompass a huge range of activities. So to broaden the span of unlawful activities solely to victimize the population UAPA amended in 2019. The most barbaric inclusion was considering individuals as terrorists, because before that terrorists could only be associated with a group of people or cult. Any individual because of individual instance cannot be classified as a terrorist.

The way the provisions of the law are enacted is draconian. The law takes an exception to settled legal principles and rights that the accused in a criminal case are ordinarily entitled to. The accused are introduced to a new set of procedural and substantive rules—all of which give significant leeway to the state or the prosecuting authority.

Starting from the definition of unlawful activity, (s. 2(o)) and terrorist act (s. 2(k)), the provisions of the Act are designed to trap the opponents of the regime. Section 2(o) defines unlawful activity as “any action” that inter alia “supports or intended to bring about” cession or secession, disrupts or questions the “sovereignty and territorial integrity” or which “causes disaffection against India”. The definition is wide and elastic and allows the government to interpret criticism and dissent as falling within the purview of the provision.

For example, questioning the human rights abuses in Kashmir could be interpreted as an action questioning India’s sovereignty. A criticism of the Citizenship (Amendment) Act could be construed as something that causes disaffection against the country. In this way, any act like possession of critical literature or speech against the ruling regime could be penalised. Well-known authors, writers, and activists such as Anand Teltumbde, Gautam Navlakha, Safoora Zargar, Umar Khalid, and Sudha Bharadwaj were incarcerated essentially on the basis of varied forms of this interpretation.

Under this law accused could be held captive for up to 180days. Section 43D (5) seems to be crafted to consider accuse unbailable. Section 38 of the Act makes the life of the alleged even harder if there is a remote connection to any person related to the prohibited organization. Sections 43A and 43B give unfettered power to the police insignificant steps such as arrest, search, and seizure without adequate safeguards and judicial scrutiny. Section 43E of the UAPA builds into the law a statutory presumption of guilt in certain circumstances. Instead of the prosecution being required to prove the guilt of the accused as it happens in conventional criminal cases, the accused is required to prove his innocence.

This is not an extensive analysis of the complete Act there is much more to it, I have tried to establish a preamble for recent activities. The political undertone of the Law (UAPA) is the predecessor of (POTA) and (TADA). The brutality of the post-Indra Gandhi periods requires volumes to pen them down. The number of alleged, under custody and then never found has a long list.

The laws based on personal agenda to maintain and retain power have paved the way for civil unrest. The scenario, particularly recent example of a BJP MLA’s insult and humiliation by a crowd is the outcome of hate generating legal system. Anyone at any time doing anything that could be considered unlawful then the line between lawful and unlawful gets blurred. Protest for the right cause is illicit, supporting that protest is illicit, saying something humane could be illegal, telling the truth can make one a traitor than we must not get astonished to see today’s India.

Almost all human rights activists are being labelled as conspirators, Andolan jeevi and parasites. Independent journalists are tag as enemies of the sovereignty of the country, conscious writers, poets, students are all defectors. One can either with the ruling regime or conserved himself a deserter, who will be hunt down upon the very first opportunities.

In this chaos, it is difficult to differentiate between legal and illegal. Everything seems relative. The human mind is based on relatively, if there is no outward relative system available then it can create its own relativities for survival. Imagine if I do what suits me and you, what deems appropriate to you. You and I can have a different set of justifications for our right and wrong, that is the reason the judicial system work as a holist component, (blindly), to my utter agitation Indian Legal system evolved eyes over the period and now it can see who is powerful thus innocent and who is weak/criminal.

Sándor Márai who was a Hungarian writer and journalist while writing about the subjugation of people through laws wrote in his novel “Embers” in 1942 that hate originates subjugation among powerful against the powerless. He writes, “Every exercise of power incorporates a faint, almost imperceptible, element of contempt for those over whom the power is exercised. One can only dominate another human soul if one knows, understands, and with the utmost tact despises the person one is subjugating.”

Shazia Cheema
The writer Shazia Cheema is an analyst writing for national and international media and heads the DND Thought Center. She did her MA in Cognitive Semiotics from Aarhus University Denmark and is currently registered as a Ph.D. Scholar of Semiotics and Philosophy of Communication at Charles University Prague. She can be reached on Twitter @ShaziaAnwerCh and at [email protected]

3 COMMENTS

  1. We Indians are happy. You pls set your house in order first by repealing blasphemy law. Our land our rules what is your problem

  2. UAPA is over 50 years’ old, TADA is 30 years old and POTA is 20years old Indian governing statutes. They are governing norms for 1.3b humanity and are long time tested in Indian courts. Instead of idiotically questioning these governing norms, I suggest the na?ve writer to suggest comparing them with corresponding provisions of Pakistani laws for fair trials. What are her views of jungle laws like Protection of Pakistan Act, 2014 (POPA, Amendments in 2015, 2017 & 2020 to Pakistan Army Act, 1952 under which the boots hanged over 300 besides regular disappearances and exta-judicial killing in the land of pure?

    It is sheer foolishness to talk about law and order, without understanding the basics of legal theory. The law itself is defined as “will of the political superiors imposed on political inferiors” and citizenry of a nation which is largest democracy of the world understands it well. Indians damn cares for analysis of fools who like worm, are crushed under boots for half of their independence and have no guts to remove them or selected from their head. I challenge Shazia Cheema to read the objects and reasons of the Indian Acts, which she is quoting, and suggest any better provision of laws anywhere in the world, including in the land of their lord Chinkys or quote any judgments of Indian Courts of Records questioning provisions of these acts as unconstitutional? Please come out of the jungle which is full of ferocious animals to understand civilized law and order. ??

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