by BA and Venkatesh Sundaram

Laws such as NSA, UAPA and AFSPA are arbitrary and do not have a place in a democracy

A law is legitimately a law only if it is universally applicable and if it applies to everyone, big and small.  For instance, laws of Physics such as the famous Newton’s Law of Gravity applies equally to the sun and to the moon as it does to an apple.  Stated differently, manmade laws, in order to be rightful and universally respected are expected to be not arbitrary and also subject to the constraints placed on them by principles of natural justice.  Many laws were codified as in, e.g., the Code of Hammurabi, or Manu Smriti, or Roman Laws or in Code Napoleon.  However, these laws were also subject to scrutiny by Courts of Law where judges educated in law could strike down arbitrary applications or impositions of these laws.  World over, the imagery of justice is captured in a blind person holding scales in her hand, thereby implying that a judge must avoid bias at all costs, and that justice hangs in the balance.

Of all the laws in India today, some of the most controversial from the point of view of jurisprudence include such laws as the National Security Act (NSA) and other sister laws such as the Armed Forces (Special Powers) Act (AFSPA) and Unlawful Activities (Prevention) Act (UAPA) (what a ludicrous name!)  In essence, these laws place the burden of proving innocence of a detained person on the person himself or herself and do not uphold the principle of an accused to be presumed innocent until proven guilty, a cornerstone of law and natural justice. For a person arrested under these draconian laws, the “process itself is the punishment” – the prosecutors are able to punish and extract revenge, as it were, from a person who in most cases turns out to be innocent in the end.

Under the pretext of detaining individuals or members of groups who pose a threat to the `unity and integrity’ of the country, or of collaboration with external enemies, or as party to planning `terrorist’ activities, or of `disturbing the peace’ and `sowing seeds of mistrust amongst communities’ or of `sedition’ these laws basically allow for the indefinite detention of individuals who have typically stood up for democratic rights of weak and dispossessed, or those who oppose the displacement and loss of livelihood of those in, e.g., tribal areas or those who live in areas to be taken over under the `Eminent Domain’ provisions for expansion of facilities for the extraction of raw materials, or mining or other activities, and often having adverse environmental impact. These include people who were opposed to the Citizenship Amendment Act / NRC and also the so-called Elgar Parishad or the Bhima-Koregaon case.

Recently one of those accused in the latter, Ms. Sudha Bharadwaj was granted bail after 3 years of incarceration with a long list of conditions including not talking to the media. Several others also accused have been denied bail.  This flies in the face of the principle of equality of law.  Furthermore, even elderly persons with chronic ailments who pose no flight risk have also been detained, while they could well have been placed under house arrest.  Sadistic and patently unjust examples include having an elderly man sleep on the floor during the Covid epidemic, denying a patient of Parkinsonism the use of a sipper or straw, and yet another of denying a patient of hypertension who is practically legally blind the use of his spectacles.  It is clear that the incarceration of such persons is only to set an example to those who would have the temerity to question those in power.

Such activities of the custodians of the law have struck deep and hard at the conscience of all democratically minded persons.  It is of utmost importance to everyone from all walks of life, especially from the legal profession, to come together and to explore all avenues to expose the arbitrariness of these laws and to have them struck down.

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