VC, NALSAR University of Law, Hyderabad
Justice or righteousness is the source, the substance and the ultimate end of law. Law without justice is unthinkable, but unfortunately, power, not justice, has become the basis of law today. This year, we are observing the centenary of the Jallianwala Bagh massacre. On the fateful day in 1919, people were protesting against the Rowlatt Act that had provided for detention without trial. But it was more humane than our terror laws. The UAPA (Unlawful Activities Prevention Act) amendment is an insult to the Jallianwala Bagh martyrs.
With the UAPA amendment becoming law, India has moved away from rule of law to the rule by law system. The UAPA amendment not only provides for longer period of detention without judicial scrutiny, but has also come up with an extremely draconian provision of declaration of an individual as a terrorist. Thus, even prior to conviction or FIR, the state may on its own designate anyone as a terrorist. The framers of the Constitution must be turning in their graves. In ADM Jabalpur (1975), Justice HR Khanna observed that “preventive detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life.”
Cicero famously said that “we are in bondage of law so that we may be free.” Rule of law is an unqualified human good. Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial of all individuals, however heinous their crimes may be, will be a moral loss against those who preach hatred and violence. It is difficult to give a definite and precise definition of terrorism. More than 100 definitions of terrorism are globally available. Retributive justice has not given rich dividends anywhere in the world in curbing terrorism.
In spite of having extremely repressive anti-terror laws such as TADA, POTA, UAPA, terrorism continues to thrive and no noticeable decline has been noticed in the terror violence. The stringent clauses in these laws include defining terrorism in widest possible terms, harsh punishment extending to life sentence or death, reversal of presumption of innocence, presumption of guilt in case weapons are recovered from an accused person, admissibility of confessionals made to police officers, longer durations of detention, denial of bail etc.
These laws were largely used against the petty offenders, trade union leaders, political dissenters, civil rights activists, elderly citizens and young children. During the Congress rule in Gujarat in the 1990s, TADA was frequently invoked though the state was not affected by terrorism. It was similarly misused and abused in Jharkhand. In Punjab, even a retired High Court judge was detained for several months.
These violations of the cardinal principles of classical criminal jurisprudence are generally justified as the consequences attached to these heinous terror crimes are grave and, therefore, it becomes essential for the state to enact such repressive laws in the name of the so-called ‘security of the state’. But the state cannot and must not assume arbitrary powers in the name of terrorism. In 2014, the apex court had come down heavily on the Gujarat police in the Akshardham temple terror attack case and indicted the state’s justice system, including the High Court, and criticised recording of confession and the recovery of an unstained piece of paper from the pocket of the terrorist killed in the crossfire.
In rest of the country also, in many terror-related cases, accused were finally acquitted, but the lives of these innocent people have been permanently destroyed. The BJP does accuse the Congress governments of misuse of the Unlawful Assembly Act against the right wing Hindu activists. What is the guarantee that it will not be used by the BJP against the opposition or liberal intellectuals?
The strategy to devise new laws, procedures and institutions to tackle the menace of terrorism has not brought down terrorism, but has indeed resulted in increased restrictions on individual liberty and freedom in varying forms and degrees. It is the settled strategy of all terror groups to push a civilised state into a terror state. Once the state indulges in state terrorism, these terror groups go to the disappointed, frustrated and unemployed youth and convince them that the state has been unfair to them and they must fight against these injustices. These groups will succeed in the indoctrination of these hapless victims because of injustices to which they had been subjected to and due to the perception that these injustices were being done with the connivance of the state.
The UAPA amendment not only impinges on our federal character but is also another instance of going against the longstanding juridical principles of the criminal justice system. The criminal justice system has to be tilted in favour of the accused as unlike civil cases, there is no parity between the parties. Here one party is the mighty state and on the other side is the accused, one little man who is pitted against the might of the state.
The UAPA amendment has removed the vital distinction between an ‘accused’ and a ‘convict’ and to be an ‘accused’ would now be as bad as to be a ‘convict’. In fact, a person becomes an accused when a judge frames a charge against him after taking cognisance and applying judicial mind. Now the government on its own will have the power to declare people as terrorists. It is a blanket power with no guidelines having been specified. No redress mechanism to get the declaration removed has been stated either. What the government gains by such a declaration is also not clear as no new offence has been created or new punishment provided.
Unwarranted curtailment of individual liberty in the name of counter-terrorism by the state is the greatest tragedy of our times. The best approach to criminal justice system is the ‘minimalistic approach’, ie limit the scope of application of criminal law to the minimum possible level. Finally, rule of law and fair procedure are constitutionally protected concepts and any deviation from them would be unconstitutional. The UAPA amendment may be struck down as after the Maneka Gandhi judgment (1978), every law must be just, fair, reasonable and not arbitrary.
The UAPA amendment terrorises citizens. Let us hope that the Supreme Court will stand up to the challenge and prove to be the true guarantor of civil liberties.
Views are personal
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Parida joined the UT Administration on December 26, 2018