1-2 January February 1999
the Rowlatt frame work
The 'tryst with destiny' is not a total brake with the colonial past and its administrative and judicial structures. There was a transfer of power and the Indian Independence Act 1947 enabled us to succeed the British. The idealism which Nehru brought into his midnight speech does not find a place in the utterances of the Court - major institutions described by one of its earliest judges as the sentinel on the qui vive. Nearly seventeen years after independence the Court in State of Gujarat vs Fiddali Badrudin (1964 SC 1043) held the view that the advent of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union. The continuance of the governmental machinery and laws of the dominion give a lie to any theory of transmission of sovereignty and from its ashes, the springing of another sovereign.
The Court continued that there is no holding that at the stroke of midnight of 25 January 1950 all our pre existing institutions ceased to exist and in the next moment arose a new set of institutions completely unrelated to the past. According to the Court all the Constituent Assembly did was to give form to the Constitution which functioned for several years under the old regime and set up the constitutional machinery on the foundations of the earlier set up. It did not seek to destroy the past institutions. It raised an edifice on what existed before. The Constitution moulded no new sovereignty. Affirming this decision twenty two years later in Ummaji (1986 SC 1272) a Full Bench decision which held that the Constitution made a complete break with the past was set aside.
The mindset so unequivocally and categorically set down cannot be explained away by trying to confine it to the subject matter that came up for adjudication. Once the premier institution of democracy holds this vies, all institutions of governance begin to perceive people as subjects with no right to change their lives and fate. Their transformation as citizens, an identity which enables them to participate in governance, is ignored and any people's movement to build up a better society or to bring forth better conditions to live is seen as a threat to security of State. The Rowlattian response is then justified by all these institutions. In that sense Emergency did not make any differences as our understanding of democracy has always been very superficial with frequent polls satisfying our democratic conscience. And we have the same repressive legal structure continuing, as a dominant component of Part III of the Constitution.
The result was the country's institutions were not geared to deal with efforts to undermine the constitution and when for the first Mrs. Gandhi by use of Emergency provisions in the constitution attempted to undermine almost successfully, the constitution the nation was unprepared. A feeble attempt was made to check political crimes an abuse of political power as were revealed by the various commissions set up during the post emergency period. The Special Court Act was passed. Chief Justice Chandrachud in his opinion on the Special Courts Bill wrote "Parliamentary democracy will see its Halcyon days when the law will provide for a speedy trial of all offenders who misuse public office held by them. Purity of public life is a desire goal at all time and in all situations, Emergency or no Emergency". Before passing the Special Courts Act care was taken to see that the parliament did not legislate political vendetta against Mrs. Gandhi and the people who supported the Emergency by having the Bill referred to the Supreme Court for its scrutiny. After such clearance by the Supreme Court the Act that was passed by the Parliament was a permanent one intended to check future abuses as well. Clause 4 of the permeable made the Act a permanent one. According to this clause persons holding high public and political officer are actually trustees in regard to the powers vested in them and offences committed by them in breach of the trust and confidence reposed in them would also fall within the ambit of the Act.
The result "The entire Emergency and all that went with it had been reduced by now to 21 First Information Reports. These had resulted in 4 cases, 2 per special court: 139 Jeeps valued at Rs. 70 lakhs had been obtained for the 1977 election campaign without payment or hire charges; a Minister of information had used some artists of a government department to design election posters; for four officers have been arrested while collecting information to answer a Lok Sabha question, Bhimsen Sachar and 7 others had been arrested for writing a letter to Indira Gandhi. That was all" (1980 Arun Shourie).
The experiment that was introduced by the Special Court Act was short
The National Security Act 1980 devised a method to validate incarceration of personal liberty by a "deemed" provision, by a legal fiction. While, it is said, that procedure remained the last defence of a citizen as a person, by this Act even that defence was also taken away. The detaining authority's subjective satisfaction and a person's liberty is governed by this legal fiction. Every ground, whether relevant or irrelevant, shall be deemed to be a separate detention order. This legal structure diminished democracy and emphasis on rights was viewed as supporting anarchy. Once this found acceptance, the abuse of law leading to violence by the state was looked upon as valid exercise of power. This acquisition of enormous power produced an irresponsible and corrupt system of governance.
Political discontent which was genuine to start with was never examined. No attempts were made to resolve crisis. Discontent was allowed to fester and later treated as a law and order issue, to be outlawed de facto without any overt banning of activity. The issue soon begins to be perceived as intractable calling for a new attitude and new penal code. After the 44th Amendment it is no longer possible to invoke the emergency provision to contain internal disturbance. It can be invoked only when there is a threat of armed rebellion within. When this Amendment was brought about the obvious intention was to prevent the state from frequently resorting to the Emergency provisions to impose an arbitrary and authoritarian rule on the slightest pretext. Ironically this amendment seems to have given more space to the Executive to introduce repressive legislation without the necessity of suspending any of the fundamental rights.
The Terrorist and Disruptive Activities (prevention) Act 1985 took leave of the time honoured principles of criminal jurisprudence. One major achievement of this piece of repressive legislation was, by extending the remand period to one year, the appropriation of the powers of preventive detention without attracting the limitations in Article 22 as also the publicity which a Habeas Corpus petition in the High Court would invite. Such arbitrary procedure and powers would only lead to its abuse which was so widespread that its continuance was resented even by the NHRC and so it was not revived.
The Supreme Court validated the provisions of the Act and ruled that as terrorism is not an enumerated category in any of the three lists in the Seventh Schedule it falls within the residuary powers which belong to the Parliament. We notice in the case of the validity of TADA (Kartar Singh) the emergence of a disturbing trend of the validation of arbitrary laws passed by the Parliament by the Court. For instance providing guidelines for recording confessions by superintendents of police under TADA or in the case where the validity of The Armed Forces (Special Powers) Act (Naga Peoples Movement for Human Rights), accepting army instructions to subordinates issued with a view to avoid arbitrary actions as adequate safeguards against violation of one's fundamental and human rights. Such a course is not authorised by Article 21 as interpreted from Maneka Gandhi (1978) onwards. While judgments rendered by the court have the force of law they suffer from absence of communication and so by and large remain ineffective. In fact there is no way of communicating the law laid down by the court to the public at large.
The length of these judgments and the difficulty in unravelling the rationale of the case are daunting obstacles which discourage any attempt at effective communication. If these guidelines are to be effective these should be known to the accused before he/she is chargesheeted and to the public so that they may know what their rights are when they may know what their rights are when they are arrested as suspected terrorists. Questioning the competence of the Parliament and the validity of the enactment of The Armed Forces Special Powers Act, quite a few writ petitions were filed between the years 1980 and 1991 by the Naga Peoples Movement for Human Rights and others and these came up for hearing before the Supreme Court in the month of November 1997. The Court considered the instructions of do's and don'ts claimed to have been issued by the Army as adequate safeguard against abuse. These instructions have been elevated to the status of Procedure Prescribed by Law, the mandatory requirement of Article 21 as interpreted by the very same court in several decisions.
Can instructions take the place of law? Should not a law or a rule effecting liberty be published and available for the public to inform themselves? Do the judges expect a havaldar to hand over on demand these instructions? In 1982 Mr. Tarkunde an ex-judge of the Maharashtra High Court was mauled by the police at Madurai just for asking the Additional Superintendent of Police to name the provision which enabled the police to prevent photography of the police brought to control a mere hundred processionists. This after he announced that he was a high court judge for quite a few years. What is objectionable in these trends is making up the deficiencies in law by Court's exercise of power under Articles 141 and 142.
The amendment brought about by the 44 Amendment to Article 352, instead of restricting the power of the Executive, has in fact expanded the powers of parliament to pass laws with reference to "internal disturbances' without let or hindrance. TADA could not have become operative without invoking Article 352 prior to the 44th Amendment. After the Amendment it appears to be no longer necessary to comply with any of the fundamental rights so long as the Act to deal with internal disturbance is of limited duration but with the power to keep the law alive by unlimited extensions. The Preventive Detention Act was extended year after year for eleven years and now we have it permanently. TADA was extended every two years for ten years. This also may become part of permanent penal code. The Armed Forces (Special Powers) Act commenced its career as a temporary measure but gained a permanent status in 1958.
The Central legislation broadly understood as Security Laws was possible when the centre was strong, which in a system of parliamentary democracy, meant an absolute majority in the parliament. The ruling party headed by Mrs. Gandhi in 1967 lost in five states. Corruption and unhealthy political practices made their first appearance quite brazenly. By an adroit political sleight of hand the crisis was transformed into an ideological confrontation with the court. There were also efforts to mount an authoritarian structure. As the centre was weak the states were directed have their own preventive detention laws. The Elections in 1971 and 1972 and the successful war with Pakistan contributed to the emergence of a strong government at the centre. A strong government need not necessarily be a good government. This was adequately demonstrated by the Emergency that followed.
We are now facing almost a similar situation. We have a weak government at the centre with no credible politics to offer to the people. Religion has never been a unifying force capable of converting the entire Hindu Majority into a vote bank as was amply demonstrated by the results of the elections. We have been entertaining the poor of this country to a Barmecides' feast for nearly half a century an as the illusion is wearing thin, people will organise themselves against this enveloping insecurity and this is perceived as a threat to security of state. The Home Minister, as Mrs. Gandhi did earlier, advised the states to have their own terrorist laws. Thus Tamilnadu passed the prevention of terrorist activities act without allowing any debate and is awaiting the assent of the President. The Act is a reproduction of the TADA 1985 unexpurgated. Already the contents of the law as in TADA 1985 was held valid by the Supreme Court.
The only question that remains is whether the Tamilnadu Assembly has the competence to legislate for the control of terrorism as this falls within the residuary power of the Union? The jurisprudence of power may this time yield a different interpretation and the court may find the law competent as it is intended to deal with local terrorism comprehended by public order which is a state subject and under entry 2 A of the Union list the central government can deploy its armed forces to aid civil authorities, but always subject to its control. This would be in tune with the desire to respect the federal principle. Thus fascism can be made a state field of legislation.
Andhra Pradesh after Jalagam Vengal Rao has been a model Police State. Not to be outdone by Tamilnadu they also manufactured a bill to become a law later. The State, on account of the presence of a continuing left movement has always been a forerunner in bringing about innovative pieces of legislation. When Mrs. Gandhi said the states could have their own preventive detention laws, it brought about the AP Preventive Detention Act 1970, which legislated that every ground of detention should be viewed as detention order. This law was struck down by the AP High Court as violative of Article 22 (5) itself. Those were the days when fundamental rights were still fundamental and were not subordinated to the jurisprudence of power. This provision found its place in The National Security Act 1980 and its validity has not been questioned. Andhra Pradesh established successfully that no law need to be applied to control inconvenient political dissent. It also established yet another principle that the constituent units of the Indian Union need not comply with the provisions of the various International Covenants to which this country is signatory.
The present legislation is to obliterate part III of the Constitution. The legislation may come through or may suffer some modifications. The mind set is what is important. In the brochure brought out for study by its legislators, it has provided the resource material which includes all the British laws used to suppress the freedom struggle. While the Constitution by Article 51 A makes it a mandatory duty to cherish the ideals which inspired our freedom struggle, the State has always been cherishing the methods that were used by the British to suppress the freedom struggle and its police have truly been the heir of General Dyer of Jalianwala Bagh fame. It is not necessary to deal with all the provisions in the bill. One novel aspect of the legislation is sufficient to demonstrate the fascist inclinations of the government. Ex Ungue Leonem.
We are all familiar with a legal category called "National Area". But none of us ever heard of a person being notified in the Gazette as a "Notified Person". It is not necessary that this person should be found in a notified area. He can be found anywhere. Once a person is notified he cannot be given shelter or food. He cannot approach any doctor, nursing home or hospital for treatment. His parent's kith and kin and other relatives become suspect and will be subject to surveillance and repeated arrest for apprehension of the notified person. He is likely to be shot on being spotted or apprehended and the announcement that he was killed in an encounter-the fig leaf legality - is dispensed with. It can neither be homicide nor murder. The Notified Person epitomises and confers legality on thirty years and odd of the brutal practice of physical liquidation of radical dissent by the Andhra Pradesh police. It sets at naught all International Covenants ensuring respect for human rights; it abrogates Article 21 primarily and the other freedoms as well. It did not invite the protest it should. In fact there has been no protest worth the name.
This measure is seen as measure directed against CPI (MLPWG) and other
naxalite parties and groups and that would be an irretrievable mistake.
While he advice to the states to have their own terrorist law may bear
some similarly to Mrs. Gandhi and the Congress she led that the BJP led
coalition would stage a come back as she did is not even a remote possibility.
But the emergence of a federal structure with fascist states appears to
be a frightening prospect. The centre can supply forces to the constituent
units and be satisfied with a limited role. It is becoming increasingly
difficult (and therefore disturbing) to visulaise a political programme
or ideology spanning the entire country nor is there a leader acceptable
to all the people-a national leader.