In honour of slain journalist and rationalist Gauri Lankesh, Gauri Memorial Trust and Citizens for Justice and Peace (CJP) have been hosting a series of webinars since August 15. On August 29, we hosted a lecture on the subject: Dissent Is Not Treason, Understand National Security Laws, delivered by Gautam Bhatia, a practising lawyer and academic with close involvement in constitutional rights.
The lecture started with CJP’s Secretary, Teesta Setalvad mentioning that the city of Burnaby, Canada has declared September 5 as Gauri Lankesh Day to celebrate her courage. She was gunned down on the same day, four years ago by right wing extremists outside her Bengaluru home.
Before highlighting the important issues of national security laws, Gautam Bhatia praised Lankesh and her body of work. “If it was one thing that really characterised Gauri Lankesh’s work, it was scepticism to all kinds of power and authorities and existence of ruthless questioning!”
Bhatia’s detailed lecture examined three lines of thought when it comes to the record of civil rights in independent India in the Constitutional context.
The first, is that after independence there was a period of two decades, where courts were still colonial in nature, trying to find their feet. Eventually, things started to improve after the public interest litigation era.
The second line of thought is that there has been no one particular point where there has been a change in the Supreme Court’s behaviour. But since independence there is a “more consistent trend of judicial deference towards national security laws”, that depart from normal criminal law principles and protection of rights. He added, “The reason for that is because our judges have failed to correctly interpret the Constitution, they have chosen to interpret the Constitution in a way that accords to the executive with some courageous exceptions.” The Constitution is good and transformative, but this line of thought suggests that the problem has been “bad” judges.
But Bhatia feels it is not that simple. He referred to the Bhima Koregaon case, where the first set of arrests had taken place exactly 3 years ago and prominent lawyers, academicians have since then, been imprisoned without a trial. “It’s hard to forget that just 2 days ago, we were at the third anniversary of the Bhima Koregaon arrests including Sudha Bharadwaj. Their bails have been rejected at every level of the judiciary. It is not that simple, there are structural issues in the Constitution too and this enables judges to make bad decisions. So, it is not only about a Good Constitution and bad judges,” he said.
Characteristics of National Security Laws
From a bird’s eye perspective, Bhatia referred to some national security laws like the Unlawful Activities (Prevention) Act (UAPA), National Security Act (NSA), and the now repealed Terrorist and Disruptive Activities (Prevention) Act (TADA), and said that they are all characterised by four common features. They are:
1. Executive supremacy – It is the executive’s decisions to trigger a legal regime that effectively takes us from a state of normalcy to a state of exception. The executive sits in judgment over complaints against its own abuse of powers.
2. Denial of remedies – There is a limit upon the role of independent bodies that can play to check abuse and impunity. The classic example of this, as cited by Bhatia is section 43-D (5) of the UAPA that denies bail and ensures that people remain imprisoned.
3. Jurisdiction of suspicion – He explained that in criminal law, one needs a tight causal link between a crime and the person responsible for it. A strong causal link needs to be established to hold somebody guilty. But when it comes to national security laws, he said that the chain of link is non-existent. “There is presumptive guilt from association like, who do you meet, what books you read, what you have said in the past, all this becomes a proof of your complicity in the alleged offence,” explained Bhatia.
4. Public welfare as supreme law – These impugned laws provide for public safety and welfare, but we are never informed or told who constitutes the public, and what is the exact threat to them.
Another commonality he hinted at is that these four characteristics of national security laws are repeated in all three eras – the colonial time, the period of framing the Constitution and finally the post-colonial period. In the colonial time, Bhatia explained, the ordinance-making powers of the Governor General were used to draft and legitimise preventive detention laws. He added that preventive detention should be called out for what it is, that is “administrative or executive detention”. These laws were also unreviewable by the courts and the Governor General continued to have power to dominate such laws.
He then referred to the Bengal regulation that first authorised the use of executive detention to maintain tranquility and security from either foreign intervention or “internal commotion”. He then cited the Rowlatt Act, “which became the flashpoint for nationalist protests that authorised detention upto 2 years”. Besides these legislations, Bhatia highlighted the Criminal Tribes Act, 1871, that was brought about by British colonisers and “which foreshadows a lot of what we see today”. He said that the most telling feature of this Act was that in order to establish guilt by association, it labelled an entire tribe as presumptively criminal. He said that this act was important, especially in the context of the draconian UAPA in today’s times.
Bhatia then pointed out how during the framing of the Indian Constitution, there was a nationalist response that became a constitutional critique. He explained, “In various Presidential addresses of the Indian National Congress, stalwarts like CR Das and Motilal Nehru critiqued this legal regime from the perspective of constitutional rights of freedoms and liberties. In 1919, Nehru specifically argued that just because some people are endangering peace, we cannot have a law in place that presumptively criminalises the entire population.” Bhatia also quoted the exact words of Motilal Nehru, “No executive in the world, however competent it may be, has any business to usurp the jurisdiction of the constitutional court or deprive the protection of people by them”.
He drew parallels between Motilal Nehru’s motive and section 43D (5) of the UAPA that effectively imposes a statutory bar on the courts to grant bail. Similarly, CR Das had once said, “The personal liberty of each person depends to a great extent on the exercise by the persons in authority of wide arbitrary powers. Where such powers are allowed, personal liberty is denied.” Bhatia pointed out that the critique of UAPA is something that was raised 100 years ago on the same lines of liberty and freedom and it is still relevant to us today.
Article 22 of the Constitution expressly authorises detention
According to the constitutional scholar, India is almost unique amongst other Constitutions as it specifically authorises executive detention under Article 22 (Protection against arrest and detention in certain cases) of the Constitution. Bhatia said, “Not only that, the insertion of Article 22 was strongly resisted by multiple members of the constituent assembly on grounds of fundamental freedoms and state overreach.”
The entire trend of constitutional arguments made throughout history against the British, continued into the Constituent Assembly against the dominant faction that wanted to maintain such laws, Bhatia opined. He referred to the specific stormy debate that led to the framing of Article 21. The debate at that time was whether the provision should include the “due process” clause on the lines of the United States Constitution or “procedure established by law”, which was adopted by the Assembly, and still stands today.
As per Bhatia, some members of the Assembly had argued that adopting the due process clause would give far more reaching powers to the courts in interfering with government policy, including welfare policies, but adopting procedure established by law would make the role of the courts minimal. Finally, the due process clause was dropped.
In response to dropping of the due process clause and existence of an executive detention regime, Bhatia explained that BR Ambedkar introduced Article 22 (1) and (2) to “bring about some measure of protection”. But he explained that this was a “negligible kind of protection” because such provisions just warranted the production of a person before the magistrate within 24 hours of arrest and that, the provision itself is subject to any law that provides for preventive detention in the first place!
“This was, in the Assembly, called a thin kind of compromise, this is what the Constitution gave us. Ambedkar said he was trying to restore due process without using the term due process and this has haunted our jurisprudence since the beginning. This was a half-hearted protection, almost an afterthought,” Bhatia remarked.
Judicial pronouncements post framing of the Constitution
Bhatia then went on to mention some Supreme Court cases to understand how the role of courts have been limited to interpret and read down some of the preventive detention laws that impinge on people’s liberties. He referred to the case of ADM Jabalpur vs Shivkanth Shukla AIR 1976 SC 1207, (popularly known as the Habeas corpus case) during the Emergency period which was taken to be the “moment of great shame”. The court had held that a person’s right to not be unlawfully detained can be suspended during the Emergency. He pointed out that even before ADM Jabalpur, there was a whole range of cases that held the same ratio. So, Jabalpur wasn’t the first judgment that suspended Article 21 that guarantees right to life and personal liberty, said Bhatia.
After Jabalpur, he referred to what scholar Ujjwal Kumar Singh had to say that there is a regime of interlocking legal systems where the state of exception and normalcy has been enmeshed with each other, leading to a temporary system becoming a permanent and defined one. In this backdrop, he then referred to the AK Roy case (1982 AIR 710) which was delivered in 1980, just three years after the Emergency.
This case is important since the constitutionality of the National Security Act (NSA) was upheld. The court had said that the chain of authority and accountability which solely involves executive action is constitutionally valid, and the trigger for the government to use preventive detention in defense of the country’s security is valid too. This continuing perspective has been harmful, said Bhatia. He also quoted a paragraph from the judgment to highlight the bizarre view adopted by the Supreme Court in the case, where they accept that the provisions of NSA are vague but expressed hope and confidence that when the provisions will be invoked, it will be done in a precise manner without leaving any scope for misuse by the government.
He also referred to the Kabir Kala March judgment in 2013 of the Bombay High Court, wherein the court highlighted that participation has to mean “active participation” in a banned organisation or an illegal activity to establish the accused person’s guilt. He also referred to the Asif Iqbal Tanha bail case (Crl. Appeal No. 34 of 2021), wherein the Delhi High had said that the offence under UAPA requires the accused to be an active member to prove that there was ultimately incitement to violence. The court had also opined that the term “terrorism” cannot be expanded to include any kind of public disorder. But Bhatia pointed out that though these judgments are important, the impact still remains marginal.
Co-panelist VS Sreedhara, Professor of English and Human Rights activist, added that the whole burden of demanding the revision of the Constitution in context of these laws have to be dealt with a lot of caution. He said that preventive detention laws are a way to criminalise people without any proof which is dangerous and warrants the concern of people. He ended on a hopeful note that a people’s movement is required to save the Constitution, which would mean saving the dignity and life of the people of this country.
The entire lecture may be viewed here:
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