24, Jul 2023 | CJP Team
Apart from the Unlawful Activities (prevention) Act (UAPA), there are other Central as well as State level legislations that deal with offences related to “security of the nation” and other related matters, and within this matrix accord unbridled powers to the government and its agencies. This control is over public movement, the power to conduct search and seizure at will, and to detain and deny personal liberty, among other things.
One common factor among all these laws, national or state level, is that they give unchecked immunity “in acts in good faith” performed by law enforcement agencies.
Let us have a look at these outdated laws that have been used by several governments over the years, all of which violate fundamental human rights.
NATIONAL SECURITY ACT, 1980 (NSA)
Despite the NSA being a central law, it is being increasingly used by states to detain individuals. Its misuse has even been brought into question by the Supreme Court. In recent times, the apex court expressed shock that NSA was invoked against Samajwadi Party leader Yusuf Malik in a revenue recovery case without application of mind. In another case, NSA was invoked by Tamil Nadu against a YouTuber from Bihar who was arrested for spreading fake videos of attacks on migrant worker and the apex court questioned this decision as well.
- Under the NSA, a person is detained to prevent him or her from acting in any manner prejudicial to “the security of the state” or for “maintenance of public order” or “to the maintenance of supplies and services essential to the community”
- Such authority to detain lies, apart from the Central and state government, with the District Magistrate or a Commissioner of Police; thus allowing detention on a mere administrative order.
- Such Order of Detention can be issued for a period of three months at a time and the administrative order has to be approved by the state government within 12 days of issue, for it to remain operative for 3 months.
- Section 5A of the NSA states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the Court to be vague or invalid, even that one ground would still remain and the detention order sustained.
- The grounds of detention are to be communicated to the detainee within five days or latest within 15 days in exceptional circumstances.
- The detention order is to be placed before Advisory Board within three weeks whereby it shall consider the grounds and the detainee’s representation.
- Once confirmed by the Board, the person can be detained up to one year. Once this period expires, the person can be detained once again without any fresh facts, for another period of one year.
- Under section 14A, the detention order can be extended beyond three months, without the Board’s confirmation, for up to six months if the person is detained to prevent him in any “disturbed area” from interfering with efforts of Government in coping with the terrorist and disruptive activities as also from acting in manner prejudicial to defence, security of the nation and state, maintenance of public order or maintenance of supplies and services essential to the community
- Delhi Lieutenant Governor Anil Baijal had authorised the Delhi Commissioner of Police to detain people under the National Security Act till October 18, 2021 amid the farmers’ protest and then upcoming Independence Day celebrations.
- Dalit leader Chandrashekhar Azad had been detained by the Yogi Adityanath led UP govt in November 2017 for his alleged involvement in violence over installation of Dr Babasaheb Ambedkar’s statue in Sharanpur in May that year. One year later, Azad was released from detention after this decision was challenged before Supreme Court.
JAMMU AND KASHMIR PUBLIC SAFETY ACT, 1978 (PSA)
- The law was brought in by the state’s first chief minister, Shaikh Abdullah in 1978 to prevent timber smuggling (and detain smugglers in prison) allows the state to detain persons up to two years without trial.
- Its provisions are similar to NSA but was enacted two years before the national law.
- Under section 3 and 4, the government has power to declare any place or area as prohibited or protected vide a notified order and any person, even unaware of such a notified status of the place can be imprisoned for contravention.
- Under section 6, the Government may deem any document to be detrimental to communal, sectarian or regional harmony or even public order and can prevent its circulation within the State.
- Under section 8, a person can be detained if he/she is deemed to be prejudicial to public order.
- The reference to the Advisory Board, about the detention order, is to be made within 4 weeks and once confirmed by the Board, the person can be detained for up to 2 years
- Section 19 grants the Government the power to re-issue a detention order on basis of same facts.
- A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.
- The PSA was indiscriminately used in the erstwhile state after August 5, 2019 to detain political leaders after Article 370 was abrogated by the Parliament.
- A detailed analysis of the Act may be read here.
THE ARMED FORCES (SPECIAL POWER) ACT, 1958 (AFSPA)
- AFSPA gives the armed forces the power to maintain public order in “disturbed areas”
- It was passed to curb increasing violence in north-east states in 1950s
- The law gives a free hand to armed forces to maintain law and order in these disturbed areas declared so from time to time by the Ministry of Home Affairs.
- The armed forces may use force or fire at anyone found contravening the law (for instance violating the curfew or assembling in larger numbers). They may also detain a person without warrant and search any place without warrant
- AFSPA was revoked in Meghalaya as of April 1, 2018 and in Tripura in 2015
- Under section 6 of the Act, no prosecution, suit or other legal proceeding shall lie against any person in respect of anything done or purported to be done in exercise of the powers conferred under AFSPA; thus giving complete impunity to armed forces.
- As of April 1, 2021 up until September 30, 2021 districts of Tirap, Changlang and Longding as well as (i) Namsai and Mahadevpur police stations in Namsai district; (ii) Roing police station in Lower Dibang Valley district; (iii) Sunpura police station in Lohit district have been declared as disturbed areas as per section 3 of AFSPA
- As of December 1, 2020 the entire state of Manipur, except Imphal municipal area has been declared as disturbed area for a period of one year i.e. until December 1, 2021
- On February 22, 2021 the entire state of Assam was declared as a disturbed area for 6 months citing the state Assembly elections and the activities of extremist outfits like ULFA(I).
On June 30, 2021 the application of AFSPA to the entire state was extended for another 6 months
MAHARASHTRA CONTROL OF ORGANISED CRIME ACT (1999),
- Organized crime is a grouping of highly centralized enterprises run by Criminals who tend to engage in illegal activity. Unlawful activities like terrorism, theft, prostitution, robbery, drug trafficking, human trafficking, forced labour which are practiced collectively by group of people are called as organized crimes.
- Section 2(e) defines ‘Organised Crime’ which means “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”.
- Under section 3 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.
- Presumption of offence means the court shall presume the accused to be guilty unless the contrary is proved, thus putting the onus of proving himself innocent upon the accused.
- The investigating authority has special powers like intercepting wire and oral communication in the process of investigation.
- Further, under section 18 confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
- The offences under the Act includes conspiring, attempting to commit or abetting organized crime or harbouring member of organized crime or being a member of such syndicate.
- Under section 21(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
- Under sub-section 5 of section 21, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
- MCOCA was passed to curb such activities of “gangs” that were part the “underworld” in Mumbai.
- In March 2003, the Bombay High Court had struck down as illegal the powers under MCOCA to intercept communications. However, these powers under section 13 to 16 were upheld by the Supreme Court in 2008.
- In 2002, the application of MCOCA was extended to Delhi as well.
KARNATAKA CONTROL OF ORGANISED CRIME ACT, 2000 (KCOCA)
- The KCOCA was modelled on MCOCA and was legislated during the tenure of a Congress government in 2001.
- In 2009, KCOCA was proposed to be amended bringing terrorism within its purview with a maximum punishment of death. If the investigation is not completed within 180 days, the Court is authorized to extend the period up to 365 days, which means an accused can be detained for a year without filing of chargesheet.
- Under the proposed amendment Organized crime has been defined expansively to also include ‘terrorist act’ apart from ‘any continuing unlawful activity’. A terrorist act includes within its definition, acts committed with the intent to ‘disturb law and order’ or ‘public order’.
- The proposed amendment, empowered courts to attach the properties of terror suspects and there is a provision for a fine of Rs 10 lakh for terrorist acts. Also, terror suspects can be in police custody for a maximum of one month and in judicial custody for 180 days.
- However, the amended law has not received the President’s assent and thus these 2009 amendments do not stand. The following provisions, however, are part of the main Act as it is operational in present day.
- The investigating authority has special powers, under section 14, like intercepting wire and oral communication in the process of investigation.
- The police officer also can seek an order from the competing authority directing a cellular phone operator to de-activate any mobile phone and delink the calls from or to any mobile phone reasonably suspected of being used for any criminal act or conspiracy.
- Further, under section 19, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
- If a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government.
- Under sub-section 5 of section 22, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
- Under section 23 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.
CHHATTISGARH SPECIAL PUBLIC SECURITY ACT (2005)
- Under the Chhattisgarh Special Public Security Act (CSPSA), 2005, or the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, “unlawful activities” include posing a danger to public order, peace or tranquility in society, posing an obstacle to maintenance of public order, interfering with administration of law and encouraging the disobedience of law among others.
- The Act borrows heavily from UAPA in its formation of Advisory Board, declaring organizations as unlawful, penalising membership of unlawful organization and so on.
- The government is also empowered to forfeit funds of such organization and District magistrate (DM) is empowered to take possession of places used for unlawful activities.
- The decision of the DM and/or state government in matters under the Act is final and cannot be appealed against, saving writ jurisdiction of the high courts and Supreme Court.
GUJARAT CONTROL OF TERRORISM & ORGANISED CRIME ACT, 2019 (GCTOCA)
- The law received the President’s Assent 16 years after it was first introduced in the state assembly. Three Presidents before Ram Nath Kovind had returned the bill to the state
- While the law borrows significantly from MCOCA, what it misses out on is the checks on interception of communication. Also, the definition of “terrorist act” also includes “an act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the state”.
- Economic offences include ponzi schemes, extortion, land grabbing, contract killings, cybercrimes, human trafficking, and multi-level marketing schemes and organised betting.
- MCOCA has 5 sections dealing with interception of communication having checks like application for extension of period beyond 60 days must include a statement of the results of the interception thus far or officer above SP level is required to supervise the investigation.
- GCTOCA deals with the admissibility of evidence collected through interception, and does not mention the procedure for intercepting communication.
- under section 16, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
- Under Section 18, if a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government. Further, is any property is suspected to be proceeds of terrorist act or organized crime, the police can have it seized once confirmed by the Special Court.
- Under section 20(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
- Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail. Bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.
- Under section 21 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene
THE PREVENTION OF ANTI-SOCIAL ACTIVITIES, 1985 (PASA)
- The ‘definition’ of offenders who can be charged under this law are vague and easily prone to misuse. The definitions include “cruel person” “dangerous person”, “property grabber”, “unauthorised structure” among many others.
- A “cruel person” means a person, who either by himself or as a member or leader of a gang, commits an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954.
- A “dangerous person” means a person, who either by himself or as a member or leader of a gang, habitually commits, any of the offences punishable under Chapter XVI (offences affecting human body) or Chapter XVII (offences against property) of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.
- Section 3 of the Act gives the government the power to issue a detention order against any person for preventing them from acting in “any manner prejudicial to the maintenance of public order”.
- public order is deemed to be affected if any activities of the offenders is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof, or if (there is) a grave or widespread danger to fife, property or public health.
- Under section 5, the law provides for place and conditions of detention which means a detainee can be kept under prolonged detention so as to maintenance, discipline and punishment for breaches of discipline, as may be specified in the order.
- Section 6 states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the court to be vague or invalid, the one ground would still remain and the detention order sustained.
- In case a person against whom a detention order has been made “is believed” to have absconded or is concealing himself, the concerned authority is empowered to attach or sell his property within the State.
- The detaining authority has up to 7 days to communicate the grounds of detention to a detainee, from the date of detention order and if any of these are facts that are against the “public interest”, then they may not be disclosed.
- The Advisory board hears the detainee without legal representation and decides a within 7 weeks whether the detention is confirmed. The Board is empowered to confirm detention for a maximum period of one year.
- The amendment Bill of 2020 brought cyber offences also under its ambit which meant any person committing offences described under the Information Technology Act can be detained under PASA.
- It also now includes sexual offenders which could mean anyone who commits sexual offences as defined under the Indian Penal Code.
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