During the recent parliamentary debate on the National Investigation Agency (Amendment) Bill 2019, the Union home minister claimed that the notorious Prevention of Terrorism Act (POTA) was repealed in 2004 not due to misuse but to safeguard vote bank politics. This, despite the fact that misuse of POTA is well established and its repeal in 2004 was welcomed as a significant step forward by India towards recognising that counter-terrorism cannot justify violation of civil liberties and rights of citizens. By attributing malafide political intentions to the repeal of POTA, the current government has signalled its retraction from the position of 2004. As a result, the space for raising questions about India’s security law status quo has shrunk once again.
India’s security laws framework is not restricted to one or two laws but is instead a persistent logic frequently used against minority communities and dissenters critical of the government of the day and its policies. We gained this understanding after the making of a video on the UAPA in 2017, the 50th 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 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, which is ethically unjustified.
Upholding this unfair system has not been restricted to one or two political parties either, as different governments have overseen their abuse over the years. Moreover, 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; of 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 21. The arrest of activists, lawyers, writers as well as eight Reliance Industry workers in 2018 under Unlawful Activities Prevention Act in connection to the Bhima Koregaon incident is the latest evidence of misuse of such laws to reach mainstream news. There are many other cases that don’t make the headlines with the accused struggling to get bail even years after arrest. 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.
PDA was passed as a temporary measure to deal with the challenges posed by violence and displacement during the partition of India. The law authorised the government to detain individuals without charge for up to a year. When introducing PDA as a temporary, twelve-month version, the then Minister of Home Affairs said that permanent preventive detention powers “required closer study” before more lasting legislations can be passed. However, the Act was annually reviewed by the Parliament and renewed repeatedly for almost two decades before finally being allowed to expire in 1969.
AFSPA 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 part of the country. When Nehru’s government passed AFSPA in the Indian 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 Indian government supplemented PDA’s preventive detention powers with the UAPA which gave it power to declare organisations “unlawful” and then limit and scrutinise 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 can be held in custody for six months without even the filing of a charge sheet. In comparison, those 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 PDA, the UAPA discarded the periodic review clause, thus making it valid indefinitely, unless repealed in Parliament.
MISA was established immediately after the lapse of PDA 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 is infamous for its excesses during emergency when it was aggressively used against political opponents, trade unions and civil society groups that challenged the government. MISA was repealed after the defeat of the Congress government in 1977.
NSA 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 PDA and MISA in its preventive detention powers and closer to UAPA in not requiring a periodic review, despite grave human rights concerns. The law gives power to the Central and State government 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. NSA is one of the most draconian laws operating in the country, and is easily prone to misuse.
TADA was instituted in the mid-80s 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 offences, 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 America, the ruling National Democratic Alliance proposed POTA as the new anti-terror law. The Bill was enacted in a Joint Session of the Parliament, despite stiff opposition from civil society. POTA reinstated many provisions of TADA thus ensuring a continuum of misuse of security laws. POTA incorporated TADA’s enhanced police powers, limits on the rights of defence, confessions made in police custody admissible as evidence and setting up of Special Courts. Like laws before 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 setting up of Special Courts to prosecute cases, which has in the past proved grounds for abuse, as evidenced under TADA. Furthermore, the list of offences in NIA overlap with those in UAPA 1967. This makes room for offences under UAPA to be prosecuted in Special Courts, although UAPA does not have provisions for such Courts. Under NIA 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.
POTA was repealed in 2004 amidst public outcry against its misuse. But alongside repealing it, the government amended the 1967 UAPA 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 November 26, 2008 terror attack in Mumbai, 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 perceived threat, there would be no need for the extraordinary legislation to continue. Like NSA, the UAPA does not have this clause.
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: Defence 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 defence 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 Defence of India Act in 1962. This emergency wartime preventive detention law corresponded to the World War II Defence 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 right to appeal and denied 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 UAPA 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 (AFSPA) & 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 Defence 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 authorised 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 destabilize 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.
The timelines presented here map the history of security laws in India, from the colonial era to 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 who they are applied against, it is unlikely that the new amendments will operate in the interest of national security as the government claims and far more likely that they will be used to curb dissent by incarcerating those critical of the government.
The 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).
Bhamati Sivapalan is an independent filmmaker. Vidyun Sabhaney is a writer, editor, and illustrator of graphic narratives. Her recent works include First Hand 1 & 2.