Monday, May 9, 2011

The Disappointment of Democracy- Part 3


(As published in Nazar)

This article is the third in a series of pieces by the author that will discuss the foundations of India’s social and political situation in the context of the war the government has declared on the Red Corridor of India (Maoist-concentrated areas). This series focuses on the injustices inflicted upon civilians through draconian laws, forced displacement, and unlawful arrests.

The first article in this series outlined the inhumane and violent methods adopted by both the Salwa Judum and the Maoists, killing innocent tribals in the process. The second article described the plight of the Internally Displaced Persons who are refugees in their own country.

License to Silence

In a democracy, everyone has a voice. Every voice is free to agree, disagree, comment, protest, provoke, or persuade. This freedom is what distinguishes a democracy from a dictatorship. While the Indian government strives to uphold this freedom for all citizens through the Constitution and its laws, the government draws a line to limit this freedom. In fact, it draws many lines, citing public safety in some cases and national sovereignty in others.

Through certain draconian laws, the government tells us when it is acceptable to express our views, and when it is not. Some of these laws are implemented to combat the Maoist threat in the heart of India. Other laws are meant to counter the instability in Kashmir and the Northeast. These laws are the antithesis of what democracy stands for, because they criminalize those that disagree with the government. The proponents of these laws deem them a necessary evil, because they have the interests of this nation in mind. However, critics claim these laws are often implemented in an exploitative manner, resulting in unnecessary deaths and the unlawful curbing of human rights. Summarized below are a handful of such laws.

Sedition

The law criminalizing sedition was first created during the rule of the British to deal with the Wahabis who were active participants in the first war of Independence in 1857. Since then, it has taken the form of Section 124A in the Indian Penal Code (IPC) as a non-bailable offense that can be punished with life imprisonment. This colonial law is more than a hundred and forty years old, and states that “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India” is guilty of sedition1, 2.

During the struggle for independence, many nationalists were charged with sedition, including Bal Gangadhar Tilak and Mahatma Gandhi. When convicted under 124A, Gandhi responded with optimism:

“Section 124A under which I am happily…charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence1.

After independence, the law stayed in the constitution, despite Prime Minister Nehru’s belief that the law was “highly objectionable and obnoxious and it should have no place both for practical and historical reasons1.” Nevertheless, it remained in the Indian Penal Code, and the Indian government continued charging people for expressing dissent.

Recently, writer Arundhati Roy, Times of India resident editor Bharat Desai, photojournalist Gautam Mehta, and environmentalist Piyush Sethia are just a few of the many who were targeted for speaking out against the State’s wrongdoings3.While Roy has not been formally charged, her outspoken views on Kashmir have garnered criticism from government officials. However, others like Sethia were charged with sedition and arrested for passing pamphlets against Operation Green Hunt. Desai was charged with sedition for publishing articles on police links with criminal gangs, and Mehta for criticizing the Ahmedabad Police Commissioner(http://www.thehoot.org/web/freetracker/story.php?storyid=181&sectionId=9)

Armed Forces Special Powers Act (AFSPA)

The AFSPA bestows virtually unlimited power to security forces in order to “maintain public order” , as the law claims.4 Even non-commissioned officers can shoot and kill based on mere suspicion4. Upon enactment in 1958, the Home Secretary G.B. Pant stated that the AFSPA was temporary and would be used to fight the ‘Naga [hostilities]’, but the Act remained, never again being debated or reviewed in Parliament5. Today, it is being implemented in the Northeast Indian states (Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, and Tripura) and Jammu and Kashmir. Such unbridled power has faced criticism, considering law enforcement’s track record of suspicion-based targeting. According to the National Human Rights Commission (NHRC), 2560 police encounters took place between 1993 and 2009. The NHRC found half of these encounters to be fake, because they happened under false pretenses6.

The Jeevan Reddy Commission appointed by the central government has also suggested repealing the act due to improper implementation and widespread human rights abuses. However, this suggestion was rejected by the Defence Minister, Pranab Mukherjee (now Finance Minister) on the grounds that “it is not possible for the armed forces to function” in “disturbed areas” without such powers7. The United Nations (UN) Human Rights Committee also questioned the constitutionality of the AFSPA under Indian law and stated its inconsistency with the International Covenant on Civil and Political Rights. UN Commissioner for Human Rights, Navanethem Pillay, asked India to repeal the AFSPA; she termed the law a “dated and colonial-era law that breach[es] contemporary international human rights standards8.”

One of the most publicized critics of the AFSPA is Manipur activist, Irom Sharmila. For more than ten years now, she has been confined in the jail ward of the Jawarlald Nehru Hospital. Sharmila has not taken a single drop of water or solid food. She vows to fast until the AFSPA is repealed9.

Similarly, a group of women protested the exploitative use of the AFSPA when Manorama Devi, an alleged member of the armed revolutionary group, the People’s Liberation Army, was found dead in Imphal. Human Rights Watch reports:

“When Manorama’s body was found, it bore scratch marks and a gashing wound on her right thigh, probably made by a knife. Her body, according to her relatives, bore other signs of torture, such as bruising. There were also gunshot wounds to the genitals, which lent credence to the theory that she was raped before being shot dead10.”

On July 15, 2004 this group of women protestors stripped themselves naked and protested in front of the 17th Assam Rifles headquarters, claiming “We mothers have come. Drink our blood. Eat our flesh. Maybe this way you can spare our daughters11.”

Prevention of Terrorism Act (POTA)/ Unlawful Activities Prevention Act (UAPA)

On the heels of 9/11, the Jammu and Kashmir legislative assembly attack, and the attack on the Indian Parliament building in New Delhi, the Indian government enacted POTA. This Act allowed a suspect to be detained for up to 180 days without filing charges in court. The Act also permitted a confession to the police to be used as an admission of guilt, something that could not be done under regular Indian law. The United Nations found these provisions inconsistent with the International Covenant on Civil and Political Rights (ICCPR)12.

POTA defined ‘terrorism’ in an arbitrary manner, opening the law up to exploitation. For instance, the act criminalized ‘raising, receiving, or providing money or other property when either intending or having “reasonable cause to suspect” [that] it will be used “for the purposes of terrorism”’13. Who determined this ‘intent’ or ‘suspicion’ was left unanswered by the Act.

POTA was found to target minorities under the guise of ‘terrorism’. Many of the accused were innocent and unfairly prosecuted. For example, the Act was used in Andhra Pradesh and Jharkhand against individuals from Dalit, lower caste, and tribal communities. In February 2003, it was found that 3200 individuals were detained under POTA in Jharkhand, the largest number of detainees in any state13. Jammu and Kashmir had fewer individuals detained under POTA, even though the number of incidences of terrorism were higher there, indicating the presence of an ulterior motive in such detentions. POTA was also used to target religious minorities. By March 2004, over 280 individuals were charged under this Act, all of them Muslim except for one. Of these 280, 189 were detained, of which most were denied bail13.

Due to the misuse of POTA, the United Progressive Alliance (UPA) promised to repeal the act as part of their election promise. Upon election in 2004, the UPA repealed POTA and in its place strengthened the existing UAPA which banned association with certain organizations. The amended UAPA did not include certain draconian provisions of POTA, such as the detaining of a suspect for 180 days and using confessions to the police as evidence in court13. However, many aspects of the repealed POTA were added to UAPA, resulting in an equally draconian legislation.

According to the UAPA, those involved in “any operations directed towards combating terrorism” are given official immunity14. Furthermore, the UAPA bans ‘terrorist organizations’ without having to explain its reasoning for such bans. The UAPA also allows evidence through phone-tapping and other forms of electronic interception to be used without authorization and to be admitted as evidence in court. In the interest of national sovereignty, the UAPA allows restrictions to be placed on the freedom of speech, freedom to assemble peacefully without arms, and the right to form associations or unions15.

Chhattisgarh Special Public Security Act (CSPSA)

Passed in December of 2005, the CSPSA is designed to combat Maoist violence, although the UAPA already bans all Maoist organizations since the passing of the amended UAPA. Through CSPSA, one can be detained for exhibiting a “tendency to pose an obstacle to the administration of law.”16 As a result of CSPSA, the media can no longer report on Maoist related issues in Chattisgarh; by doing so they run the risk of being charged as ‘unlawful’16.

Bijapur-based Journalish Kamlesh Paikra was harassed for months by police and Salwa Judum forces as a result of his reporting on the Maoists. Another Bijapur journalist, Lakshman Kusram, was also threatened by police after he reported that police had been physically violent with women17. When these incidents were reported to the International Federation of Journalists (IFJ), the president of IFJ stated:

“Intimidation of journalists and preventing them from carrying out their profession is unacceptable under any circumstances, but when reporting on conflict, journalists are already in a precarious position between combatant parties. Only when they are allowed to report independently and without fear, can a genuine democracy be said to be in place17.”

Thus, this act seems to violate Article 19 of the Constitution, which guarantees all citizens the rights to freedom of speech and expression.

Conclusion

Such laws violate not only the Indian legal framework, but also international obligations India has ratified. They violate the right to life and liberty guaranteed by the Constitution, which reads “No person shall be deprived of his life or personal liberty except according to procedures established by law.” How far is the law willing to compromise the life and liberty of all citizens? When armed forces personnel are granted the right to shoot and and kill on suspicion alone, that is a violation of the right to life. All actions must have an objective basis and be judicially reviewable. This will also assist those who file suit against security forces, if they choose to do so. At the bare minimum, these laws need to comply with international law and the Indian Constitution. Only then can the Maoist threat be resolved. Only then can a true democracy be possible.

References

1 ‘Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India, Siddarth Narrain, Economic and Political Weekly

2 http://www.mightylaws.in/294/sedition-offence-state

3 “Sedition, Free Speech and Dissent” available at http://www.thehoot.org /web/freetracker/story.php?storyid=215&sectionId=14

4 http://www.hrdc.net/sahrdc/resources/armed_forces.htm

5 http://epw.in/epw/uploads/articles/15732.pdf

6 http://www.hindustantimes.com/Half-of-enounters-fake-says-NHRC/Article1-523361.aspx

7 http://www.businessandeconomy.org/19082010/storyd.asp?sid=5483&pageno=1

8 http://en.wikipedia.org/wiki/Armed_Forces_(Special_Powers)_Act,_1958

9 http://en.wikipedia.org/wiki/Irom_Chanu_Sharmila

10 http://www.hrw.org/en/node/75175/section/5

11 Human Rights Watch interview with L. Gyaneshori, President, Thangmeiban Apunba Nupi Lup, Imphal, February 26, 2008

12 http://en.wikipedia.org/wiki/Prevention_of_Terrorist_Activities_Act

13 Kalhan, Anil et al. (2006). Colonial Continuities: Human Rights, Antiterrorism, and Security Laws in India. 20 Colum. J. Asian L. 93.

14 http://www.hrdc.net/sahrdc/hrfeatures/HRF106.htm

15 Obsessive Pursuit: The Unlawful Activities Prevention Act, 2004: Reinforcing a draconian law, PUDR, January 2005: Delhi

16 http://en.wikipedia.org/wiki/Chhattisgarh_Special_Public_Security_Act

17http://www.newswatch.in/violation/chhattisgarhs-novel-way-to-counter-naxals-gun-for-journalists.html

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