Dr. Binayak Sen will now be out on bail but not without celebrating the second anniversary of his needless detention. He was detained under Chhattisgarh Special Public Security Act and the Unlawful Activities Prevention Act. Under these laws a person can be detained for flimsy reasons with no provision of bail. This is not the only law in our book which can be used by the Government to harass a citizen who is inconvenient to them. Dr Binayak in addition to being a good and benevolent doctor is a conscientious human rights activist who was blowing whistles on Chhattisgarh government sponsored Salwa Judam's illegal killings of innocent tribals. The incarceration which the doctor has suffered was the "reward" the government of Chhattisgarh was giving him for his aggressive activism. Salwa Judam, whose misdeeds Dr. Sen was fighting against, has received strong disapproval of the Supreme Court of India.
Another recent instance of misuse of a bad law is the slapping of National Security Act on Varun Gandhi by the UP governmrnt The Chief Election Commissioner had already recommended FIRs against his hate-speech and the law was already taking its course. Even a layman would guess that the NSA was slapped against him with malafide intention of the state government to harass him and to keep him out of action during the pre-election days.
Such misuse of the draconian laws in our country is so extensive that one is inclined to believe that these laws are enacted as instruments of harassment and vendetta.
After every terror attacks young men are rounded up indiscriminately. They are locked up, tortured, humiliated for days and days and released after police finds no evidence against them. After bomb blasts in Makka masjid at Hyderabad in 2007, 75 young men were rounded up, detained illegally and tortured. When the case was handed over to CBI, within hours of interrogation the agency found the arrests of 43 persons unnecessary and released them. The remaining were acquitted by courts towards the end of 2008. The case remained unsolved. The Home minister P. Chidambaram has stated in a matter of fact manner that Makka case has now become cold. No wonder that most of the terror cases have remained unsolved and gone cold. A whopping 98 per cent of those arrested under stringent unconstitutional laws have had no case against them which can stand in the courts of law. It is as if the administration or the police knowingly arrest the wrong persons in order to shield the real culprits.
A thirty three year old software engineer Sadiq Shaikh was arrested on 24th September 2008, The crime branch booked him under Maharashtra Control of Organized Crime Act [MCOCA] for his alleged involvement in 11 July 2006 Mumbai train blasts. He was robbed of his liberty till ATS [Anti Terror Squad] took over the case and found no evidence against him. He was released this month. Like this Sadiq Shaikh many a young men were arrested in connection with this train blasts. They faced torture and humiliation. The Government of Maharashtra was mute spectator when anti-social elements threatened the legal fraternity of Mumbai against providing legal assistance to the detainees. Ultimately no evidence against these young detainees was found. The train blasts case remained unsolved and will be remembered as one more case of misuse of a draconian law and a case going cold.
Maulana Abdul Nasser Madani who has founded a secular political party in Kerala had spent 10 years in jail for alleged involvement in Coimbatore blasts in 1998, till he was acquitted of all charges against him. He spent only 4 years less than a life term. For no reason.
The draconian POTA was used by the Gujarat government to keep numerous persons in jail without bail accusing them of conspiracy to torch the train at Godhra station. The detainees right to liberty was in abeyance for seven years till Supreme court ruled that there was no case for booking them under POTA at all.
Following the Mumbai terror attack on 26/11, the Government of India was so rattled and came under so muchand MCOCA pressure from the NDA opposition that only after a debate of less than one full day it passed draconian amendments to the Unlawful Activities Prevention Act [UAPA], which not only incorporated all the nefarious provisions of the infamous POTA and MCOCA, but also gave a new dimension to the age old universal maxim of "ïnnocent till found guilty". Under the amended UAPA, a court is barred from granting bail to an accused unless it finds the accused prima facie innocent. In other words the accused has to be treated as guilty unless an evidence of his innocence is convincingly presented. This is in contravention of Supreme court's direction that granting of bail should be the norm and its rejection an exception. As if this was not draconian enough the NDA wanted the confession made to the investigating agency admissible as evidence. No need to mention here that most confessions made to the investigating agencies are under duress or torture.
The opinions of two big names on this amendment to UAPAct deserve mention. Soli Sorabjee called the provisions of the amendment "constitutionally vulnerable" and "inconsistent with the International Covenent on Civil and Political Rights [ICCPR]." Lord Meghnad Desai has called this amendment blatant violation of human rights. He said, "the law just passed by the Indian Parliament is unlikely to survive a PIL that challenges its violation of human rights."
So, there are bad laws in our statute-book . As long as there are laws which can be misused they will be misused.The bad laws are bad. They trample upon our human rights. They overturn many constitutional principles. As the Chief Justice of India puts it there are legislators who have no patience with the human laws to tackle terrorism. They don't want to be tied down by the human rights considerations. It is the duty of the legal community –in which the Chief Justice includes judiciary- to see that the constitutional principles are not diluted and the unconstitutional laws are protested against. The legal fraternity in India should establish a mechanism by which what is not constitutionally correct does not creep into our law-books and if it has creeped in, efforts should be made to repeal it. There should be a body of legal experts – a sort of legal ombudsman- who keeps a watch on the legislations passed in the parliament. If any act is found to be constitutionally vulnerable, as Soli Sorabjee puts it or is not consistent with Human Rights or any International covenant, the ombudsman should appeal to the legislative body to withdraw the bill or the act. The legal fraternity should stop bad laws from being enacted or from being notified and fight to scrap such laws from the book with the help of the courts.
An excellent amendment to the Section 41 of the Criminal Procedure Act was passed by the parliament early this year. Under this the freedom to the police to arrest a person for a crime punishable by less than 7 years imprisonment was curbed. The Police would arrest a person only if he fails to respond to a notice to present himself at the station. In short the amendment obviated the necessity of an arrest and therefore the necessity of a bail. The Chief Justice of India endorsed this pro-people act and to emphasize this endorsement he made a startling statement that sixty percent of the arrests made in India are needless. The legal fraternity of Delhi came down on the street protesting against this law. Of course they had their argument. They marched to the parliament, blocked roads and even resorted to hunger-strike forcing the government to defer the notification of the act.
If the legal fraternity and the Delhi High Court Bar Association can stop this amendment to Section 41 of the Criminal Procedure Act from being notified why can they not protest against the anti-people draconian laws being enacted or being misused? Why can we not revise our books to get rid of laws which violate human rights and right to liberty?
Dr. Mookhi Amir Ali, Sushma, Dadabhai Road, Santacruz West, Mumbai 400054
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