Draconian Laws Promoting Authoritarian Rule Should Be Repealed
G Ramakrishnan
“A DISSENT in a court of last resort is an appeal to the brooding spirit of law to intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”.
These are the words of justice H R Kanna, made in his dissenting judgment in a five member bench of the Supreme Court in an appeal in 1976. The five member bench of SC four judges including the chief justice gave a judgment in an appeal by the Union of India (Indira Gandhi government) declaring that an order issued by the president of India under Article 359 (1) of the Constitution suspends the right of every person to move any court for the enforcement of the right to personal liberty under article 21 upon being detained under a law providing for preventive detention.
In June, 1975, the union government led by Indira Gandhi proclaimed emergency. Large numbers of leaders of the opposition parties were detained under the Maintenance of Internal Security Act. While proclaiming emergency, the right to move for the enforcement of the right conferred by the constitution was suspended by the presidential order dated June 27, 1975.
Affected persons filed Habeas corpus petitions in many high courts. Government of India raised preliminary objection to the maintainability of the petitions on the ground that the right to move the court was suspended. The preliminary objection was rejected by the High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan. Hence the appeal before the Supreme Court – ADM Jabalpur vs. Union of India, 1976.
Deciding on the above said appeal, a majority of four judges of the SC (excepting H R Kanna) held that “liberty is confined and controlled by law, whether common law or statute. If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of the emergency”. The judgment of the Supreme Court upheld the suspension of the fundamental right of liberty by the government.
Contrary to the views of the four judges, justice H R Kanna emphatically held that “the suspension of the right to move any court for the enforcement of the right under Article 21, upon a proclamation of emergency, would not affect the enforcement of the basic right to life and liberty”.
After a lapse of 41 years, in 2017, the SC in a larger bench gave a judgment in K S Puttasamy vs Union of India, overruling the judgment of SC in the case ADM Jabalpur vs. Union of India in 1976. The SC judgment in 2017 said “The Judgments rendered by four judges constituting the majority in ADM Jabalpur case are seriously flawed. The 2017 judgment further says that “Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati case, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberties are bounties conferred by the state nor did the constitution create these rights. The right to life has existed even before the advent of the constitution.”
Even before the constitution coming into force, no one could be deprived of life or personal liberty without the authority of law. All along, from A K Gopalan case to K S Puttasamy vs Union of India Supreme court case in 2017, many cases declared that the right to life and liberty is a fundamental right.
Unfortunately, in recent years, the Supreme Court and many of the High Courts have not been following the spirit of the judgment in K S Puttasamy vs Union of India.
After BJP came to power in 2014, the situation in our country has gone from bad to worse. The situation now is akin to an undeclared emergency. The last ten years of the Modi government have seen unprecedented attack on democracy and democratic rights. The lawless laws, Unlawful Activities Prevention Act (UAPA), National Security Act (NSA), Prevention of Money Laundering Act (PMLA) and the central Agencies like the Enforcement Directorate (ED), CBI and Income Tax department have been used to target the leaders of the opposition parties and those who criticise and oppose the policies of the Modi government at the centre. Under the provisions of the UAPA and PMLA, arrested persons find it practically impossible to get bail. Both UAPA and PMLA were amended in 2019 to make them more stringent.
To quote N Ram, a senior journalist explaining the grave situation in our country: “It (BJP government at the centre) has conducted targeted assaults on freedom of expression, media freedom, media independence and other fundamental rights. It has used anti-terror, sedition and other draconian laws to incarcerate journalists, students, human rights defenders, civil society activists and troublesome critics of the government often without bail or trial for prolonged periods. Since 2014, India has sunk to the rank of 161 among 180 countries and territories in Reporters without Borders’ World Press Freedom Index; It has systematically misused agencies of the State responsible for countering crime, corruption, income tax violations and money laundering in order to go after and arrest political opponents, including ministers, chief ministers and legislators.”
The Bhima Koregaon case which also became known as B-16 in which 16 people were arrested including some eminent activists like Rona Wilson, Varavara Rao, Sudha Bharadwaj, Fr. Stan Swamy, Arun Ferreira, Gautam Navlakha, Anand Teltumbde and Vernon Gonsalves. This case is also known as Elgar Parishad case. They were accused of “waging war against the nation, promoting enmity between different caste groups, and spreading Maoist ideology”. They were arrested under UAPA by NIA and denied bail for a long time. Fr. Stan Swamy died in custody on July 5, 2021. The 84-year-old’s bail pleas had been denied over the course of three years despite the fact that he was suffering from Parkinson’s and other age-related conditions. Critics have also pointed out that the NIA refused to provide simple accommodations like a straw and a sipper to Swami for weeks despite his ailing condition.
Meanwhile a report by a leading US digital forensic company offered ‘irrefutable’ proof of arrested activist Rona Wilson’s devices being hacked and explained how 22 files were planted. These files are key evidence in the Bhima-Koregaon case. It was alleged that an Israeli software was used to plant this material into Rona Wilson’s device. But NIA rejected this allegation and court did not consider it seriously.
Among the 16 persons arrested, lawyer and activist Sudha Bharadwaj was the first to be given bail among them. A year later, the High Court granted bail to Anand Teltumbde.
P Varavara Rao, the 82-year-old poet and activist, was granted bail by the Supreme Court on account of his advanced age.
Gautam Navlakha received limited respite when the Supreme Court directed that the 70-year-old be shifted to house arrest. To persecute him, NIA demanded more than Rs 1.8 crore from him as expenditure for his house arrest. Later, the Supreme Court granted bail to Vernon Gonsalves and Arun Ferreira. Finally, as Prabhat Patnaik notes: Prof Shoma Sen was granted bail on April 5th by the Supreme Court after she had spent six years in jail as an accused in the Bhima Koregaon case. While granting her bail, the Supreme Court said in no uncertain terms that there was no prima facie case of her being associated with any act of terrorism or being linked to any terrorist organisation.” The remaining people, some of them ordinary activists, still languish in jail.
Prabir Purkayastha, editor NewsClick was arrested under the provisions of the UAPA in October 2023. He was released on bail on May 15, on the technical ground that the remand report was not given to him while being arrested.
After coming to power in 2014 at the centre, the BJP amended several acts including UAPA, NSA, PMLA etc to make these acts more stringent so that accused persons cannot come out on bail. In these acts, burden of proof is put on the accused, treating an accused person under arrest guilty till proven innocent.
Justice V R Krishna Iyer, in his judgement said “Bail is the rule, jail is the exception”. But the prosecuting agencies in the BJP regime argue in the courts that bail is not a right of the accused.
In this background, the CPI(M) has come out with an election manifesto in defence of constitution and democracy. The election manifesto says that the CPI(M) will ensure dismantling of the authoritarian set up that tramples on the constitution, democracy and democratic rights. CPI(M) will take all steps to repeal the draconian acts, UAPA, NSA, PMLA and to ensure that the ED must be divested of law-enforcement powers.
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Draconian Laws Promoting Authoritarian
Rule Should Be Repealed
G Ramakrishnan
“A DISSENT in a court of last resort is an appeal to the brooding spirit of law to intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”.
These are the words of justice H R Kanna, made in his dissenting judgment in a five member bench of the Supreme Court in an appeal in 1976. The five member bench of SC four judges including the chief justice gave a judgment in an appeal by the Union of India (Indira Gandhi government) declaring that an order issued by the president of India under Article 359 (1) of the Constitution suspends the right of every person to move any court for the enforcement of the right to personal liberty under article 21 upon being detained under a law providing for preventive detention.
In June, 1975, the union government led by Indira Gandhi proclaimed emergency. Large numbers of leaders of the opposition parties were detained under the Maintenance of Internal Security Act. While proclaiming emergency, the right to move for the enforcement of the right conferred by the constitution was suspended by the presidential order dated June 27, 1975.
Affected persons filed Habeas corpus petitions in many high courts. Government of India raised preliminary objection to the maintainability of the petitions on the ground that the right to move the court was suspended. The preliminary objection was rejected by the High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan. Hence the appeal before the Supreme Court – ADM Jabalpur vs. Union of India, 1976.
Deciding on the above said appeal, a majority of four judges of the SC (excepting H R Kanna) held that “liberty is confined and controlled by law, whether common law or statute. If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of the emergency”. The judgment of the Supreme Court upheld the suspension of the fundamental right of liberty by the government.
Contrary to the views of the four judges, justice H R Kanna emphatically held that “the suspension of the right to move any court for the enforcement of the right under Article 21, upon a proclamation of emergency, would not affect the enforcement of the basic right to life and liberty”.
After a lapse of 41 years, in 2017, the SC in a larger bench gave a judgment in K S Puttasamy vs Union of India, overruling the judgment of SC in the case ADM Jabalpur vs. Union of India in 1976. The SC judgment in 2017 said “The Judgments rendered by four judges constituting the majority in ADM Jabalpur case are seriously flawed. The 2017 judgment further says that “Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati case, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberties are bounties conferred by the state nor did the constitution create these rights. The right to life has existed even before the advent of the constitution.”
Even before the constitution coming into force, no one could be deprived of life or personal liberty without the authority of law. All along, from A K Gopalan case to K S Puttasamy vs Union of India Supreme court case in 2017, many cases declared that the right to life and liberty is a fundamental right.
Unfortunately, in recent years, the Supreme Court and many of the High Courts have not been following the spirit of the judgment in K S Puttasamy vs Union of India.
After BJP came to power in 2014, the situation in our country has gone from bad to worse. The situation now is akin to an undeclared emergency. The last ten years of the Modi government have seen unprecedented attack on democracy and democratic rights. The lawless laws, Unlawful Activities Prevention Act (UAPA), National Security Act (NSA), Prevention of Money Laundering Act (PMLA) and the central Agencies like the Enforcement Directorate (ED), CBI and Income Tax department have been used to target the leaders of the opposition parties and those who criticise and oppose the policies of the Modi government at the centre. Under the provisions of the UAPA and PMLA, arrested persons find it practically impossible to get bail. Both UAPA and PMLA were amended in 2019 to make them more stringent.
To quote N Ram, a senior journalist explaining the grave situation in our country: “It (BJP government at the centre) has conducted targeted assaults on freedom of expression, media freedom, media independence and other fundamental rights. It has used anti-terror, sedition and other draconian laws to incarcerate journalists, students, human rights defenders, civil society activists and troublesome critics of the government often without bail or trial for prolonged periods. Since 2014, India has sunk to the rank of 161 among 180 countries and territories in Reporters without Borders’ World Press Freedom Index; It has systematically misused agencies of the State responsible for countering crime, corruption, income tax violations and money laundering in order to go after and arrest political opponents, including ministers, chief ministers and legislators.”
The Bhima Koregaon case which also became known as B-16 in which 16 people were arrested including some eminent activists like Rona Wilson, Varavara Rao, Sudha Bharadwaj, Fr. Stan Swamy, Arun Ferreira, Gautam Navlakha, Anand Teltumbde and Vernon Gonsalves. This case is also known as Elgar Parishad case. They were accused of “waging war against the nation, promoting enmity between different caste groups, and spreading Maoist ideology”. They were arrested under UAPA by NIA and denied bail for a long time. Fr. Stan Swamy died in custody on July 5, 2021. The 84-year-old’s bail pleas had been denied over the course of three years despite the fact that he was suffering from Parkinson’s and other age-related conditions. Critics have also pointed out that the NIA refused to provide simple accommodations like a straw and a sipper to Swami for weeks despite his ailing condition.
Meanwhile a report by a leading US digital forensic company offered ‘irrefutable’ proof of arrested activist Rona Wilson’s devices being hacked and explained how 22 files were planted. These files are key evidence in the Bhima-Koregaon case. It was alleged that an Israeli software was used to plant this material into Rona Wilson’s device. But NIA rejected this allegation and court did not consider it seriously.
Among the 16 persons arrested, lawyer and activist Sudha Bharadwaj was the first to be given bail among them. A year later, the High Court granted bail to Anand Teltumbde.
P Varavara Rao, the 82-year-old poet and activist, was granted bail by the Supreme Court on account of his advanced age.
Gautam Navlakha received limited respite when the Supreme Court directed that the 70-year-old be shifted to house arrest. To persecute him, NIA demanded more than Rs 1.8 crore from him as expenditure for his house arrest. Later, the Supreme Court granted bail to Vernon Gonsalves and Arun Ferreira. Finally, as Prabhat Patnaik notes: Prof Shoma Sen was granted bail on April 5th by the Supreme Court after she had spent six years in jail as an accused in the Bhima Koregaon case. While granting her bail, the Supreme Court said in no uncertain terms that there was no prima facie case of her being associated with any act of terrorism or being linked to any terrorist organisation.” The remaining people, some of them ordinary activists, still languish in jail.
Prabir Purkayastha, editor NewsClick was arrested under the provisions of the UAPA in October 2023. He was released on bail on May 15, on the technical ground that the remand report was not given to him while being arrested.
After coming to power in 2014 at the centre, the BJP amended several acts including UAPA, NSA, PMLA etc to make these acts more stringent so that accused persons cannot come out on bail. In these acts, burden of proof is put on the accused, treating an accused person under arrest guilty till proven innocent.
Justice V R Krishna Iyer, in his judgement said “Bail is the rule, jail is the exception”. But the prosecuting agencies in the BJP regime argue in the courts that bail is not a right of the accused.
In this background, the CPI(M) has come out with an election manifesto in defence of constitution and democracy. The election manifesto says that the CPI(M) will ensure dismantling of the authoritarian set up that tramples on the constitution, democracy and democratic rights. CPI(M) will take all steps to repeal the draconian acts, UAPA, NSA, PMLA and to ensure that the ED must be divested of law-enforcement powers.
or reload the browser
