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India has two legal systems to use when needed: Democratic and dictatorial

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Bhima-Koregaon arrests show how Indian Constitution ‘guarantees’ rights and liberties but also snatches them away.

The multi-city raids and the arrest of lawyers, activists and intellectuals in connection with the Bhima-Koregaon incident point to the dual legal system prevalent in India.

India professes to be a democracy, and fundamental rights and civil liberties are ‘guaranteed’ by Part III of our Constitution.

But paradoxical as it may seem, it is also a fascist despotism with a system of draconian laws, though this despotism is kept in reserve. They remain in the dark shadows of our democracy to be used in certain contingencies.

India assures freedom of speech (Article 19), liberty (Article 21), equality (Articles 14 to 18), freedom to practice religion (Article 25) – but all these freedoms are subject to ‘reasonable restrictions’ by Articles 19(2) to (6), the word ‘reasonable’ being elastic, Article 22(3)(b), which contemplates preventive detention laws under which a person can be detained without trial and without the right to consult or appear through a lawyer. Thus, what is given by the left hand is taken away by the right.

There is a system of laws to deny democratic rights that are utilised only when the government of the day feels its urgent need, for example, Section 124A of the IPC (the law against sedition), the Unlawful Activities (Prevention) Act, and the preventive detention laws (both federal— National Security Act— and state laws).

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Section 124A, which had been enacted way back in 1870 by our British rulers, states that whoever by words, spoken or written, or by signs or visible representations “brings, or attempts to bring, into hatred or contempt, or excites or attempts to excite, disaffection towards the government” can be awarded life-imprisonment. Obviously, such a draconian provision was made to protect the British rule, and should have no place in a free country. Yet despite Independence, India has not repealed it. Whoever comes to power in ‘free’ India finds it to be a useful tool to suppress or terrorise the opposition. When it was challenged, the Supreme Court upheld its validity in Kedar Nath vs State, saying that the section renders penal only such activities that would create disorder or disturbance of public peace by resorting to violence. But if someone gives a speech or writes an article or publishes a cartoon strongly critical of the government, how can one know whether this may lead to violence or not?

Professor Ambikesh Mahapatra of Jadavpur University was arrested under sedition charges for forwarding a cartoon about Mamata Banerjee through email, and Aseem Trivedi was arrested for drawing cartoons showing corruption. Kanhaiya Kumar and Umar Khalid were arrested for allegedly shouting anti-national slogans, a charge they have denied and has not yet been proven.

The Unlawful Activities (Prevention) Act makes mere membership of an organisation banned under Section 3 a criminal offence, vide Section 10, and this draconian law has been widely used, including against those recently arrested in connection with the Bhima-Koregaon incident. The Supreme Court in Indra Das vs State of Assam has tried to read down Section 10 but to no avail.

Preventive detention laws, which provide for detention without trial, and without the right to consult a lawyer, are an anathema to democracy, and they do not exist in countries like the United Kingdom or the United States (they existed only during wartime). But strangely enough, they are legitimised by Article 22(3) of our Constitution.

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We have really two legal regimes in India, a democratic one, and a dictatorial one.

From the time of the Magna Carta in 1215, it is a settled principle of English law that any person detained has the right to a fair trial. Even during the Second World War, when such a law was enacted and sought to be implemented, celebrated English judge Lord Atkin delivered a powerful dissent to the majority opinion in the House of Lords in Liversidge vs Anderson. However, in view of terrorist activities in recent times, the Terrorism Act, 2000 has permitted preventive detention up to a maximum of 28 days in the UK.

In the US Constitution, the sixth amendment provides: “In all criminal proceedings the accused shall enjoy the right to a speedy and public trial by an impartial jury, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for having witnesses in his favour ; and to have assistance of counsel for his defence.”

There is no specific provision permitting preventive detention in the US Constitution.

However, Article 1 Section 9 of the US Constitution permitted suspension of habeas corpus during invasion or rebellion, and President Lincoln used that power to detain without trial persons suspected of working for the Confederacy.

Similarly in 2006, President Bush signed the Military Commissions Act, which authorised the US President to suspend habeas corpus to enemy combatants. Under this law, persons captured in Afghanistan belonging to the Al Qaeda or the Taliban were regarded as enemy combatants and denied the right to have a trial by ordinary criminal courts. They were tried by a military commission and if found guilty were sent off to Guantanamo Bay and detained there. By the National Defence Authorisation Act, 2012, suspected terrorists could be detained indefinitely, and this law has been controversial in America.

Apart from the above exceptions, there is no preventive detention in UK or USA.

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In India, on the other hand, Article 22(3)(b) specifically permits preventive detention, without the opportunity to present one’s witnesses or cross-examine the prosecution witnesses, and without the right to consult a counsel or be represented by him/her. The only right a detenue has is to be communicated the grounds for his/her arrest, and the right to make a representation to an Advisory Board. Apart from the National Security Act, 1980, preventive detention laws have been enacted by many Indian states, and are often applied.

So, India is both democratic and dictatorial, whichever the rulers choose at a particular time. This is proved by the recent crackdown on activists allegedly linked to the Bhima-Koregaon incident.

The writer is a former judge of the Supreme Court of India. The views expressed are his own.

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  1. It is more than the constitution, the mindset of the rulers matter the most in deciding what is democratic and what is autocratic. They decide and execute their powers in their interest depending upon their requirements. Constitution applicability will come only in the court of law that too if one is fortunate. Else their own version of situations will be created . Our country requires social reformers , not just one but many to protect value systems from every power centres

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