Retreat of democracy: The terror of laws

Accused in the Akshardham case (from left to right), Mufti Abdul Qayyum, Maulvi Abdulla, Adambhai Ajmeri, Mohammed Salim and Mohammed Altaf, at a press conference in Mumbai in May 2014 after being acquitted by the Supreme Court. Photo: PTI

By Venkitesh Ramakrishnan

The democratic space is shrinking in India as the government uses anti-terror legislation indiscriminately, leading to prolonged incarceration of innocents and dissenters.
Three international studies based on indices of freedom and democracy by renowned global research institutions were published in the months of February and March 2021, and all three of them contained one common observation − that India’s democracy is backsliding, leading to a rapid and alarming deterioration of political and civil liberties. The three institutions, which came to similar conclusions on India’s freedom and democracy record in 2020, are the Sweden-based Varieties of Democracy (V-Dem) Institute, the United States-based non-profit organisation Freedom House and the Intelligence Unit of The Economist magazine. Specifically categorising the Indian situation, the V-Dem Institute study said India had become an “electoral autocracy”, while Freedom House downgraded India from a “free democracy” to a “partially free democracy”. The Democracy Index published by The Economist Intelligence Unit termed India as a “flawed democracy”. All three studies emphasised the role of the Narendra Modi-led Bharatiya Janata Party (BJP) government in causing this backsliding of democracy. The studies have pointed out that the Modi regime is characterised by widespread attacks on human rights groups, intimidation of journalists and activists, and rampant assaults on minority communities, especially Muslims.

The response from the Indian ruling establishment was predictable. External Affairs Minister S. Jaishankar said the reports showed the “hypocrisy of self-appointed custodians of the world who find it very difficult to stomach that somebody in India is not looking for their approval, is not willing to play the game they want to be played”. “You use the dichotomy of democracy and autocracy. You want the truthful answer…it is called hypocrisy … So they invent their rules, their parameters, they pass their judgements and then make out as though this is some kind of global exercise.” Jaishankar’s denunciation was supplemented by the Foreign Ministry spokesperson’s statement, which asserted that India had “robust institutions and well-established democratic practices” and did not “need sermons especially from those who cannot get their basics right”. It added that the political judgements of the Freedom House report were “inaccurate and distorted”. Rajya Sabha Chairperson Venkaiah Naidu did not allow attempts by a clutch of opposition members to raise queries on the V-Dem Institute report in Parliament saying countries that were talking about India should first look inward.

The reports state that they were prepared in accordance with well-defined guidelines, procedures and rules. The V-Dem Institute claims that it measures “hundreds of different attributes of democracy” with almost 30 million data points, involving more than 3,500 scholars and country experts. The Economist’s Democracy Index is self-professedly based on measuring electoral process and pluralism, the functioning of government, political participation, political culture and civil liberties. Freedom House states that it uses a two-tiered system consisting of scores and status and that each country is awarded points for each of its political rights and civil liberties indicators. The Freedom House claims that it has taken into consideration developments in 195 countries and 15 territories, while the V-Dem dataset apparently covers the track record of 202 countries. The Economist Intelligence Unit claims to cover 165 independent states and two regions.

Executive excesses & the Surat case
A number of developments in the country in recent times have indeed highlighted a colossal democracy deficit and an absence of institutional credibility that permeates diverse segments of the political and administrative systems. Some of these developments unfolded in the judiciary and the legislature, but the central theme in all these instances was the excesses of the executive in its various arms, including the political leadership, the administrative apparatus and the security machinery.

One of the most striking manifestations of this came with the judgment of the Chief Judicial Magistrate’s court in Surat on March 6. The court acquitted as many as 122 persons stating that the investigating agencies were not able to prove the charges relating to jehadi terrorist activity against them. Shockingly, the accused had spent 19 years in jail. All of them were arrested in December 2001 under the Unlawful Activities (Prevention) Act (UAPA) for participating in a meeting organised by the banned Students’ Islamic Movement of India (SIMI). In fact, there were five others who were arrested at that time; they died at various junctures of this 19-year internment as undertrials.

Chief Judicial Magistrate A.N. Dave’s acquittal order stated clearly that the prosecution had failed to link the accused to SIMI with any “cogent, reliable or satisfactory” evidence. The accused were from different States — Gujarat, where the case was registered, Tamil Nadu and Karnataka in southern India, West Bengal and Bihar in the east, Maharashtra in the west, and Madhya Pradesh, Rajasthan and Uttar Pradesh in the north. The accused maintained throughout the trial that they were not members of SIMI and had gathered for a seminar under the banner of the All India Minority Education Board. But the investigating agencies kept them under confinement for nearly 20 years without being able to gather any substantive evidence of their culpability. Clearly, an extreme case of undemocratic, anti-human excesses by an arm of the executive.

Akshardham temple attack case
But the Surat case is not the only instance where such excesses were committed on innocent and hapless people in the name of “security operations against terrorism”. The Akshardham temple attack case, registered in 2002 following an attack on the temple in September that year, was also strikingly similar. The attack resulted in the death of 30 people and caused injuries to 80. The case dragged on for nearly 12 years through various courts, but finally the Supreme Court on May 16, 2014, acquitted all the six accused, emphasising that innocents were framed through shoddy investigations. The court expressed its anguish over the incompetence with which the investigating agencies probed such a grievous case involving the nation’s integrity and security.

The court said: “Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing” (by the lower courts.) Another damning observation was: “Here, we intend to take note of the perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the State government to prosecute the accused persons under POTA [Prevention of Terrorism Act], the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court, cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us.”

The two cases are similar in terms of the excesses of the investigating agencies. But the Surat case stands out by the sheer scale of the number people who were incarcerated. The way in which the case dragged on for two decades also points to the monumental lack of accountability of security agencies in cases registered under anti-terrorism laws. After both the Akshardham and Surat verdicts, human rights activists called for monetary compensation and social restitution for the innocents who were kept in jail for crimes they did not commit. However, neither the judiciary nor the executive has responded adequately to these demands. Even more importantly, no member of the investigating agencies was called to question for illegal police custody, fabricating and concealing of evidence or committing torture, serious offences all.

The Supreme Court observed in May 2014 that the process adopted by the prosecution in the Akshardham case was flawed. It also pointed out that the sanction granted to the investigating agencies and the prosecution was “void”. It added that the process was illustrative of “clear non-application of mind by the Home Minister in granting sanction”. At that time, the person in charge of the Gujarat Home Ministry was the then Chief Minister, Narendra Damodardas Modi. His Minister of State for Home was Amit Shah.

Referring to the manner in which anti-terrorism laws were being formulated and advanced, the Supreme Court observed in the Akshardham case that “it was conscious that Parliament has placed the judiciary and the citizen in a situation that borders on the theatre of the absurd”. The court pointed out: “POTA was repealed in 2004. Yet, the trials, its implementation has entailed, are continuing till date. POTA was repealed for the gross violation of human rights it caused to the accused persons due to abuse of power by the police. This is an important aspect to be kept in mind while deciding this case and hence, it was pertinent to mention this in the beginning to say that we are wary of the abuse the provisions of this Act might bring.”

UAPA: rooted in insecurity
Such strong observations notwithstanding, implementation of anti-terrorism laws have continued unabated. Almost all State governments and most of the parties that have held power in Union governments over the last two and a half decades or so have contributed to this process, which is marked by gross misuse of authority. The history of the UAPA is a stark case study in this regard.

The very creation of this Act is deeply rooted in the Indian nation’s insecurity with regard to its sovereignty and integrity. While the UAPA is touted as an anti-terror law, the political climate in which it was first passed as a Bill amidst an ongoing Emergency in 1967 betrayed its true anxieties not about any foreign power but about the nation’s own people who may “in any manner whatsoever” be perceived as questioning the status quo of the nation-state. Thus, with this law, “reasonable restrictions” were imposed on the freedoms guaranteed by the Constitution, specifically on the freedom of speech and expression, the right to assemble peaceably and without arms, and the right to form associations or unions (see separate story on anti-terror laws).

The UAPA was amended repeatedly—in 1972, 2004, 2008, 2012, 2019—and kept alive as terrorism became a global concern, with the Muslim turning into a bogeyman. The fact that the law is vague works to the advantage of the government of the day, no matter what its ideology. Any organisation or individual can be termed “unlawful” if she/he is perceived as a “potential threat” to the country. “Unlawful activity” is defined as any action by an individual or association which intends to bring about cession/secession or aims to disrupt or question the sovereignty and territorial integrity of India or intends to cause disaffection against India.

For a long time, the UAPA existed as a dormant, less proactive piece of legislation alongside other severe anti-terror laws such as TADA (Terrorist and Disruptive Activities Act, 1985) and POTA, 2002. TADA was a precursor of sorts in undermining the safeguards provided in the Constitution and, to some extent, the Criminal Procedure Code. TADA was allowed to lapse in 1995 in the face of criticism of misuse.

The state chose to frame a more stringent law in the wake of the hijack of the flight IC-814 in 1999 and the Parliament attack in 2001 soon after 9/11. It enacted POTA. When POTA was repealed in 2004, its features were incorporated into the UAPA, which was a medley of clauses dealing with terrorist acts and unlawful activity. Both TADA and POTA had been used mainly against the minorities. Thousands of Sikhs were detained in Punjab during the TADA years, while Gujarat invoked POTA against hundreds of Muslims. The UAPA, over the years, has followed a similar trajectory by charging groups widely diverse in their ideology and composition. Tribal people and political dissenters are often labelled as Maoists while Muslims are mostly accused of being members or activists of SIMI, which was banned in September 2001.

Alarmingly, even though TADA and POTA have lapsed, several people arrested under TADA continue to languish in jails across the country. It is to be noted that TADA and POTA had a sunset clause—a time limit of two years, after which they would lapse unless renewed by Parliament. The UAPA does not have such a clause and there is a sense of permanency about it.

While all the anti-terror laws, including TADA, POTA, AFSPA (Armed Forces Special Powers Act), the Disturbed Areas Act and the National Security Act, reiterate the power of the state to curb the rights of the citizens, each successive law has become more draconian than its predecessor. In that sense, the UAPA is the worst of all pieces of anti-terror legislation. It bars the grant of anticipatory bail and makes it impossible for the accused to get a regular bail. If a court certifies that the charges against an accused are prima facie true, they cannot be released.

In its 2012 report “Terror of Law: UAPA and the Myth of National Security”, the Coordination of Democratic Rights Organisations explained how the provision for denial of bail was misused to keep the accused indefinitely behind bars.

“The law cannot be separated from the manner of its use… The purpose of the UAPA is to allow the government to outlaw opponents or those who question the status quo. The extraordinary nature of the UAPA is clearest in the time taken between arrest and bail or acquittal. The fact that the UAPA overturns one of the fundamental principles of jurisprudence—the presumption of innocence to the presumption of guilt—makes the possibility of a fair trial for the accused very rare. Even if the judiciary grants a reprieve, laws like the UAPA allow the authorities to promptly implicate the person in another case and re-arrest him. The entire period of detention itself, therefore, amounts to punishment.”

Brazen amendments
The amendments that the Modi regime has introduced to the UAPA are by far the most brazen. The amendment brought in August 2019 literally empowers the government to designate individuals as “terrorists” without providing them any effective redress. It also gives powers to the government to ban organisations branded as “terrorist” even if it merely “believes” that the organisation is involved in terrorism. The amendment states: “Under the Act, the Central government may designate an organisation as a terrorist organisation if it commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism, or is otherwise involved in terrorism. The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.” It does not define clearly which activities would constitute “participation” or “preparation” or “promotion” or “involvement” in terrorism. This leaves the field wide open to misuse. In such a context, the law has the potential to criminalise even ideas that may not lead to any violence or public disorder.

Under the Act, 42 organisations have been banned as terrorist, along with all their “formations and front organisations”. But there is no clear explanation of who can declare an organisation as a front or on what basis an organisation can be declared as such. Similarly, the 2019 amendment enables declaration of an individual as a lone wolf terrorist without trial and transfers all the provisions used to ban an organisation to an individual. It is silent on many critical aspects of the application of the law. Students of Jawaharlal Nehru University and Jamia Millia Islamia and members of Pinjra Tod (a Delhi-based women’s movement for protecting women’s rights against hostel regulations imposed on women inmates) were booked under it for protesting against the Citizenship (Amendment) Act. It was also invoked against those who were protesting against the National Register of Citizens (NRC) in Assam; members of Fridays for Future, a non-governmental organisation campaigning against the draft Environmental Impact Assessment notification; those who used the Virtual Private Network (VPN) in Kashmir; 11 people in the Bhima Koregaon case and many people who were accused of being behind the Delhi riots of February 2020.

Arrests and acquittals under UAPA
In 2019, there was a jump of over 72 per cent in the number arrests under the UAPA compared with those in 2015, according to data that the Ministry of Home Affairs provided in the Lok Sabha. Around 1,948 people were arrested in connection with 1,226 cases registered across the country in 2019. Between 2015 and 2018, the total number cases registered under the Act stood at 897, 922, 901 and 1,182 in the successive years, and the number of arrests were 1,128, 999, 1554 and 1421 respectively. In 2019, a large number of cases were registed in Manipur (306), Tamil Nadu (270), Jammu & Kashmir (255), Jharkhand (105) and Assam (87). Uttar Pradesh topped the list with 498 arrests. While the number of arrests is higher under the UAPA than under other anti-terrrorism laws, the rate of acquittals is also pretty high. In 2016, according to National Crime Records Bureau (NCRB) data, 67 per cent of the trials ended in acquittal. This means that only a third of all cases registered led to conviction. Over three years ending 2016, around 75 per cent of the cases ended in acquittals or discharge, according to NCRB data. In most cases, prolonged incarceration of the accused has acted as the punishment, with the prosecution failing to provide any substantive evidence against the accused. Observers say that judicial redemption for victims after the lapse of many years, and sometimes decades as in the Surat case, cannot be considered as real delivery of justice.

In their acclaimed 2018 book How Democracies Die, Steven Levitsky and Daniel Ziblatt delineated the manner in which new autocracies have emerged in the world in recent decades. They observed: “Democracies still die, but by different means. Since the end of the Cold War, most democratic breakdowns have been caused not by generals and soldiers but by elected governments themselves…. Many government efforts to subvert democracy are ‘legal’, in the sense that they are approved by the legislature or accepted by the courts. They may even be portrayed as efforts to improve democracy—making the judiciary more efficient, combating corruption, or cleaning up the electoral process. Newspapers still publish but are bought off or bullied into self-censorship. Citizens continue to criticise the government but often find themselves facing tax or other legal troubles. This sows public confusion. People do not immediately realise what is happening. Many continue to believe they are living under a democracy.”

Levitsky and Ziblatt did not refer specifically to contemporary India. Yet the India of laws that go against the letter and spirit of the Constitution make it fit for the description ‘backsliding democracy’.

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