Fair and humane laws and their just implementation

Objectives:

There are a number of antiquated and draconian laws governing national security. The Unlawful Activities Prevention Act with loose and elastic definitions of unlawful activities and virtually no provision for bail, The Armed Forces Special Powers Act which gives impunity to armed forces for even ghastly crimes of rape and murder, the National security Act which allows arbitrary preventive detention and various similar state laws have been widely abused to throttle liberty, incarcerate political activists and opponents and provide impunity to armed forces. These clearly have no place in a country governed by the rule of law and must be repealed. The law of sedition and criminal defamation continue to be misused and must be repealed. India stands out as one of the last democratic countries which has not yet ratified the International Convention against Torture, the Refugee Convention and the Rome Statute of the ICC. These need to be ratified.

The implementation of criminal law by a police controlled by the executive has led to widespread misuse by the government in power. This was sought to be remedied by the Supreme Court in the Police Reforms judgement but unfortunately remains unimplemented. The Parliament and States must pass Police Acts in accordance with that judgement and also provide for a 33% reservation for women in the police to reflect fairness and equity.

Action points

4.1 Section 124A of the Indian Penal Code (IPC)- Sedition- should be repealed as it does not meet the test of Article 19(2) of the Constitution and violates India’s obligations under international law. The offence contained in the read-down section, according to the Kedar Nath judgment, is covered by other offences in the IPC.

4.2 The Unlawful Activities Prevention Act, 1967 (UAPA) should be repealed because it permits prolonged pre-trial detention, uses sweeping definitions of ‘acts of terrorism’ and ‘membership’ of ‘unlawful’ organizations, and does not comply with international legal obligations. This legislation has normalised a state of emergency and routinized it as part of the legal landscape.

4.3 The Armed Forces (Special Powers) Act, 1958 (AFSPA) and the Armed Forces (J&K) Special Powers Act, 1990 (J&K AFSPA) need to be amended to provide for the removal of immunity for sexual violence, torture and enforced disappearances and to provide that the sanction for prosecution is reviewed by an independent commission instead of the central government.

4.4 The National Security Act, which is used to detain individuals on vague grounds, ignoring regular criminal justice safeguards, should be repealed. Section 107 and 151 of the Code of Criminal Procedure already provide for administrative detention thus eliminating the need for a specific statute for administrative detention. The Supreme Court of India has described the system of administrative detention as “lawless”.

4.5 The Foreign Contribution Regulation Act, 2010 (FCRA) should be critically reviewed because its broad terminology has made it possible for the union government to use it as a tool to silence organisations critical of it. Further, the implementation of FCRA must vest with an independent agency and not the government.

4.6 Section 499 of the Indian Penal Code that makes defamation a criminal offence should be repealed. Criminalising defamation has created a structure of censorship, which has a chilling effect on freedom of expression. Imprisonment for criminal defamation is a violation of international human rights norms.

4.7 Various state-levels laws, which give sweeping power to law enforcement and which do not meet the requirements of legality under international law and human right covenants, need to be repealed. These include: Jammu and Kashmir Public Safety Act, 1978 (J&K PSA), Maharashtra Control of Organized Crimes Act, 1999 (MCOCA), Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic Offenders, Sand-offenders, Sexual Offenders, Slum-grabbers and Video Pirates Act, 1982 (TN Goondas Act), Chhattisgarh Special Public Security Act, 2005 (CPSA).

4.8 The centre and each state must pass appropriate legislations on police reforms that are fully compliant with the 7 directions of the Prakash Singh case without dilution/omission. The Model Police Bill 2006, which seeks to modulate the relationship between the police and the political executive, can be a starting point.

4.9 India must ratify the International Convention Against Torture without delay, and enact and immediately operationalise a strong anti-torture law which is compliant with the convention.

4.10 India must become a party to, and ratify, the United Nations Refugee Convention and the Rome Statute of the International Criminal Court.

4.11 Implement policy of 33% gender representation in the police force, which is already an adopted policy, through appropriate changes to recruitment rules.