The writer is of the view that the Indian constitution has multifarious provisions about fundamental freedoms and other rights. But, the caste-based society and Hindutva-obsessed polity make the provisions meaningless. The constitution provides for equality and rule of law. But, several draconian laws enable administration and armed forces to persecute minorities, or stifle dissent.
Irked at being poorly rated for its democratic practices, India under Narendra Modi announced to devise its own index for measurement of democracy. India’s prestigious Frontline dated April 9, 2021 in its Cover Story titled “The terror of Laws” by Venkitesh Ramakrishnan and Divya Trivedi made the poignant observation that India’s democracy s backsliding leading to a rapid and alarming deterioration of political and civil liberties”. The three institutions that came up with similar freedom-and-democracy indices are Sweden-based Varieties of Democracy (V-Dem), the US based Freedom House (estb since 1972) and the Economist Intelligence Unit.
V-Dem said, “India has become an electoral democracy”. Freedom House downgraded India from a “free democracy” to a partially-free democracy”.
All the three studies held Modi’s government responsible for backsliding of democracy owing to widespread attacks on human rights groups, intimidation of journalists and activists, rampant assaults on minority communities, especially Muslims.
It is rare if a court gives relief to the incarcerated persons. For instance, the chief judicial magistrate (Surat) acquitted 122 innocent persons after they have been in jail for 19 years. They were charged for having links with the Students’ Islamic Movement of India.
The bitter truth is that Indian democracy does have the “persona” but not the “spirit” of the real democracy.
Rights of citizens
The framers of the Indian constitution did realise that India was not a monolithic polity in terms of religion, races or languages. Besides 80 per cent Hindus, India has 11 per cent Muslims and seven per cent (combined) Buddhists, Jains, Christians, Parsis and Jews. In view of the diversity, the Indian constitution recognises not only Hindi as the national language, but also 18 major languages originating in Dravidian South India or Indo-European north India. Furthermore there are 780 languages and dialects.
Such a diverse country could be held together only within framework of a “secular democratic and federal state”. As such, the Indian constitution promulgated on January 24, 1950 provides for a set of specific provisions, besides a set of fundamental rights to protect the interests of religious ethnic trial and the down-trodden (dalit) communities. The “fundamental rights” include “the right to equality”, the right to freedom”, “the right to freedom of religion” , “the right to freedom of religious, cultural, and educational rights”, “the right not to be exploited”, and the “right to constitutional remedies”.
Significant provisions
Article 14 of the Indian constitution “guarantees the equality of all persons before the law”. Article 15 strictly prohibits “any discrimination between citizens on the grounds of religion, race, caste, sex, or place of birth. Article 17 abolishes “the practice of untouchability”. Article 20 gives all minorities in India “the right to preserve and promote their language, script, and culture”. Under Article 25, all persons are entitled to freedom of conscience and to freely practise and propagate their religion. Article 35 provides reservations and quotas in college admissions and in government employment for the Scheduled Castes and Scheduled Tribes.
Contradictions
Neither the Hindu-dominant society nor the state allows preaching of one’s religion. A serial killer and member of Bharatya Janata Party Dara Singh set fire to the station wagon in which the Australian Christian missionary Graham Staines and his two children were sleeping, burning them alive at Orissa. A low-caste Hindu can’t enter a high-caste temple.
The caste-based society caricatures the constitutional provisions of equality. The so-called Love-jehad and anti conversion laws criminalise conversion from one religion to another.
A slew of draconian laws like the National Security Act, National Safety Act, Unlawful Activities Prevention Act, and Armed Forces Special Powers Act make the constitutional freedoms and protections meaningless. These laws oust jurisdiction of civil courts or severely limit them.
India’s northern state of Uttar Pradesh is most flagrant in using the NSA to crack down on cow related offences like transporting, or slaughtering cows or eating beef. Those charged under the NSA are deemed a threat to national security and can be detained without charge for up to a year. Even prestigious Reuters (September 11, 2020) confirmed that `Indian state uses draconian law to detain those accused of killing cows’.
Uttar Pradesh Chief Minister Yogi Adityanath has repeatedly urged use of the NSA to combat law and order issues in the state of more than 200 million people. The NSA, which Indian rights activists have described as draconian, is also frequently used in the contested region of Kashmir to detain people suspected of separatist activity.
Several intellectuals (poets, historians, lawyers) were arrested under the NSA. Their sole offence was to air dissent against government policies regarding the treatment of minorities. Gautam Naulakha was arrested for simply attending a Kashmir conference, organized by Dr. Ghulam Nabi Fai, in the USA. Even phone intercepts are sufficient evidence to send a person behind the bars. SAR Geelani, a professor of Delhi University was sentenced to be hanged for a two minute conversation with his family in the occupied Kashmir. The police mistranslated the words `What has happened in New Delhi’ (‘Delhi kya korua’) ‘to ‘what have you done’ to unspoken ‘yeh kya korua’. He was acquitted on appeal but soon died after his release. The professor was subjected to torture and he did not survive long after his acquittal. He owes his acquittal to the fine pleading by his lawyer Ram Jeth Malani.
One could be declared a terrorist for graffiti, social posts, or shouting Pakistan Zindabad (long live Pakistan). NSA was brutally applied to those who protested military’s gross human rights violations. In 1992, Niloy Dutta, Parag Kumar Das and Ajit Bhuiyan were arrested in Guwahati under unspecified sections of the NSA.
It was alleged that they were disrupting the process of peace building in Assam and were involved in “anti-national” activities that threatened the sovereignty of the country. In actual fact, they were the founding members of Manab Adhikar Sangram Samity (MASS), which had been compiling evidence of military atrocities during `operation Rhino’. It had sent three groups fully equipped with audio and video gadgets to three zones of the slate to compile cases of army atrocities.
Braving severe restraints imposed by the army and civil authorities, these groups had succeeded in recording cases of arrest, torture, molestation, rape, killing and so on. With painstaking effort they compiled a comprehensive 65-page report enlisting the cases of army atrocities, which included 13 cases of death in army camps, seven cases of rape, as many as 120 cases of brutal torture, 139 cases of illegal detention and 63 cases of indiscriminate army raids in villages, unlawful public beatings and torture, all with specific dates, places and blow-by-blow accounts of the incidents, fully substantiated by physical evidence.
Local and international human-rights organizations have condemned India’s draconian laws. They have documented detention of children, older people and the disabled in custody incognito without trial. Amnesty documented several cases of custodial deaths, rapes, and arson.
Basic architecture of the UAPA and Prevention of Terrorism Act are the same. The provisions for arrest under the amended UAPA were as vague as they were in POTA
In a bid to enhance the jurisdiction of the anti-terror-probe agency National Investigation Agency the legislature has amended (July 24, 2019) the National Investigation Agency Act and the Unlawful Activities (Prevention) Act. Now, they are empowered to declare anyone a `terrorist’, at home or abroad.
An Indian-army major Leetul Gogoi was caught red-handed in the company of a teenage paramour in a Srinagar hotel. He was let off with a slap on wrist and a loss of six months’ seniority. He was charged with `fraternizing’ with a teenager Kashmiri woman on Facebook under a fake identity. The Indian army-chief had earlier awarded him a commendation certificate for driving a jeep in Srinagar streets with a Kashmiri protester tied to his jeep-front.
Public Safety Act is being used in Kashmir to arrest innocent people dubbed as “suspected militants”, following Burhan Wani’s death in 2016. Most of the FIRs are “open FIRs.” The police append the words “and others” to arrest anyone, not named in a FIR.
Concluding remarks
In practice, the society and the polity does not care a fig for the constitutional equality and freedoms. The Hindu society is highly stratified, and caste-based (varna jati system). Draconian laws are enforced under veneer of patriotism to persecute minorities and stifle dissent.
It is rightly said ` Patriotism is the last refuge of a scoundrel’ (Samuel Johnson). “Patriotism is your conviction that this country is superior to all other countries because you were born in it” (George Bernard Shaw). “Guard against the impostures of pretended patriotism’ (George Washington). To abolish war it is necessary to abolish patriotism” (Leo Tolstoy).
India must understand that draconian laws are incompatible with a constitutional democracy.
