After the Independence of India , political parties and people in power have formulated special legislation’s in order to crush the vote of dissent and to deal with their political opponents.
A study of these laws would disclose that the legislature had the sole object of suppressing the voices of dissent or to deal with the political opponents so that they do not become people’s movements. These legislation’s have been from time to time framed and mis-used in the beginning in one state or the other , but when the majority of the Indian citizens chose to not to raise their voice against such repressive laws, these laws were mis-used in the whole of the country. For example, TADA when it was originally introduced and passed in the Parliament, the excuse was to contain the elements who demanded a separate home land for the Sikhs and were considered by the interested parties to be a threat to national security. In the garb to contain the movement, the Act which was introduced mainly for Punjab was by and large mis-used in all the states till it was finally allowed to lapse and die its own death in April, 1995, but before its death, it ruined lives of thousands of innocent citizens, not only in Punjab, but also in various parts of the Indian State. In Punjab, more than fifteen thousand people were booked under TADA most of them were Sikhs and falling in the age group of 18-25 years. Though the Act is no more in force after April, 1995, but even today in the State of Punjab there are around fifty cases of TADA being tried in the various courts. So, the mis-use of TADA continues unabated, even after the death of the Act.
Similarly, the National Security Act, 1980 which was in force even before the political turmoil in the State of Punjab was made more stringent by amending the Act on June 9, 1987 and the period of detention was increased from one year for all other states to two years in the case of Punjab. The biggest mis-use of this legislation was seen in Punjab, when after “Operation Blue Star” in June, 1984, many Sikh political and religious leaders, besides lawyers, journalists, human rights activists and intellectuals who openly raised their voice condemning the worst kind of crime against humanity, were detained under N.S.A for months together. It was the glaring example of mis-use of special legislation against a particular section of people who opposed the government’s abuse of powers to suppress the peoples movement . One fact also deserves notice that a particular security legislation is enacted by keeping the situation of a particular state or region in mind, but it is indiscriminately applied to whole of India, without seeing whether that state is ridden by similar circumstances or not. To cite an instance, while TADA was enacted to protect the security and integrity of the country by fighting with militants in Punjab, it was applied to even Uttar Pradesh and Gujarat where there was no threat to national security nor there were similar armed groups fighting for their right to self determination, as was the situation in Punjab. The result was that the TADA was mis-used more in other parts of India, than in Punjab. In Uttar Pradesh there were more than thousand arrests under TADA and more than nineteen thousand people were booked under TADA in Gujarat. The State of Punjab claimed to have contained terrorism with the aid of special security legislation like TADA, but the government figures belies this. Many persons booked under TADA in Punjab were not even remotely connected with any terroristactivity or insurgency. Lawyers, retired senior army men, trade union leaders and social activists were branded as terrorists and put behind bars. It’s a fact that 90% of the cases which were registered under T.A.D.A Act in Punjab ,people were acquitted of the charges for the reasons there was not enough evidence , but innocent young men had to undergo much hardships due to wrong actions of the state.
Further, the intention behind the enactment of such repressive and draconian laws is mostly malafide and in order to achieve political objectives. By giving excessive powers to the police force under special
laws, every attempt is made to provide shelter to the excesses committed by the uniformed men. Principles like Retribution, repentance and leniency have no place in such legislation’s.
POSSIBLE TARGETS OF SECURITY LEGISLATIONs
Statistics show that repressive laws have been mainly used against religious and ethinic minorities.Besides this, political opponents are also a soft target of the state agencies. People belonging to socially backward classes like Dalits and under privileged persons are also made the targets. In Punjab, almost all the persons booked under TADA were Sikhs falling in the age-group of 18-25 years. In Jammu & Kashmir and Gujarat, most of the TADA detainees were Muslims. In Assam, Nagaland and other NorthEastern States, political opponents, who were fighting for their liberty, were targeted. In other words, repressive laws are meant to crush the religious minorities and people raising a voice of dissent. Lawyers, trade union leaders, human rights activists and journalists were also booked under TADA. Statistics show that particular section of the society are the main targets under various repressive laws. Religious minorities ,political opponents, members of socially backward classes and people struggling for their right to self determination usually face the wrath of state agencies under such laws . The list of organisations termed as “Terrorist Organisations” under P.O.T.A proves this argument as all such org either belong to Sikhs , Muslims, Tamils , North Eastern states and Andhra Pradesh , Whereas the fundamentalist organisaions aligned to the ruling party , which are inciting communal hatred have been left out .
The misuse of P.O.T.A in Gujarat against Muslims is a crude example of the abuse of special legislation .In similar manner the arrests of Yasin Malik a Hurriyat leader and M.D.M.K leader Y .Gopalaswamy ( Vaiko ) is also abuse of the act against political opponents . Such like acts by people in power are on the high increase . There is also a serious fault with our judicial system . The presiding officers of the courts often under public pressure or due to their own mental set-up, end up working against the legal norms and try to convict people who are being tried under the special laws, even in cases where there is not even an iota of evidence. The recent case of Parliament Attack is a glaring example of the first casualty of P.O.T.A and it has been experienced that the courts even did not try to provide effective legal aid and the counsel who was provided from the legal aid did not show his competence and the case ended up in conviction in the absence of a proper defense being made available to the accused. Similarly in the case of Prof.Devender Pal Singh who was accused of TADA offences, the designated court of New Delhi not only convicted him, but also awarded him death punishment, which was totally uncalled for in the given circumstances of the case and specially when there was no evidence worthy of conviction on the file and just on the basis of a retracted extra-judicial confession that too made before a police officer. It has also been experienced that the bench which considered the appeal also acted under influence of the incident of World Trade Center in USA and upheld the imposition of death penalty upon Prof.Devender Pal Singh Bhullar. It is also a fact that the Supreme Court of India through this judgment, ignored the earlier judgments of its own court.
I, in my sixteen years of career as a human rights lawyer have experienced that the courts do not handle the cases of people who are accused of offences falling under special legislation’s with a free mind and the immediate reaction of the judges is not free from bias. I have experienced that the judges feel the pride in acting as executioners and often exceed the legal norms in order to become national heroes. They feel that in case they are able to convict an accused, who is charged under special legislation, they would be working in the national interest. And in their ignorance and hazy conception of patriotism, they end up undermining the sanctity of law and pollute the judicial stream. I am reminded of the trial taking place in Canada, the infamous and tragic downing of Air India plane, Kanishka, for which three Sikhs are facing trial in the special court at Vancouver. In this case, only after fifteen years of tedious investigation, the R.C.M.P took into custody the suspects and the Canadian government provided them special free legal aid from the top most criminal lawyers of Canada and each accused was provided with a team of seven defense lawyers, whose monthly bill run into one million Canadian dollars. The reason why I am giving this fact is that the Canadian government did not leave any chance to ensure that the judicial process is not undermined in the eyes of the general public , and even the accused as the ultimate outcome of the case would have lacked credibility, in case the accused were not given a right to fair trial and defense. Whereas on the similar lines, if we see what happened in the case of the trial being held against three accused who are alleged to have conspired in the hijacking of an Indian Airlines plane from Nepal which landed in Kandahar and certain militants were released in lieu of the safe release of the passengers, in this case, the accused were being tried without a defense counsel for more than five months and in that period more than two dozen important witnesses were examined by the CBI in the absence of a defense counsel and on the top of it, the accused did not evenunderstand the court language,i.e. Punjabi or English. I have personal knowledge of the cases being a defense counsel in the Air India case in Canada and the counsel who has challenged the trial of the hi-jacking case in the High Court. So, one can imagine the attitude of an Indian Court on one hand and a Canadian court on the other hand, even though both the countries at one time were British colonies and the legal system adopted by both the countries is based on English law. The Canadians have protected the system ,while our judicial system has lost much of its credibility .
So, to conclude, I have reasons to believe that the rulers or the political parties adopt different repressive measures on different occasions and on different opponents, with the sole objective to stop the people raising their voices against their regimes. The last two decades have shown that political parties in order to stay in power use such oppressive tools may be in the shape of M.I.S.A, N.S.A, P.S.A, T.A.D.A or P.O.T.A, but the aim and objective behind all these legislation’s is to suppress and oppress the dissenting voices or the voices of freedom. Congress planned to sacrifice Sikhs in order to ensure victory in the next elections and now the B.J.P has sacrificed Muslims to stay in power. The incidents against the Christians are also politically motivated. The atrocities being committed upon the Dalits and members of scheduled castes and backward classes are also on the similar lines. I personally feel that the politicians are mis-using the religious and social issues in order to keep us divided and to consolidate
their vote banks and since the people by and large are too innocent to understand the deep rooted conspiracies and the evil designs of the politicians, the politicians are having their way. Draconian legislation’s must be opposed at all costs and so has P.O.T.A to be. but in my own humble understanding, there is a need to consolidate the forces which have respect for human rights and civil liberties and to start a national campaign to educate the general masses of the evil designs of the forces who enact such draconian legislation’s, only then we will be able to bring out a long lasting solution.
Navkiran Singh, Advocate