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The widening fissure in India’s rule of law

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The relationship between the individual and the state is still marked by a deep, pervasive imbalance of power

Last month, the news website Scroll revealed that more than 10,000 people in the Khunti district of Jharkhand had been chargesheeted by the police for sedition. These people are overwhelmingly Adivasis. Then, in early December, a judicial probe completed a seven-year long investigation, finding that a so-called encounter of “Maoists” in Chhattisgarh by security forces, in 2012, had been a “fake encounter” all along. The people killed had not been Maoists, but innocent villagers.

These two incidents from central India — separated by time, but united in their character — illustrate a gaping tear in the fabric of constitutionalism and the rule of law in India. Put simply, even after seven decades of Independence, the relationship between the individual and the state is marked by a deep and pervasive imbalance of power. In ways that are strikingly similar to those employed by its colonial predecessor, the Indian state retains a range of legal — and extra-legal — weapons, which it can turn against its own people with minimal scrutiny or accountability.

While these weapons remain sheathed in large parts of the country, it is in places like Jharkhand and Chhattisgarh, where there exists an intense conflict over land and resources, and serious challenges to the legitimacy of the state, that their ugly reality is revealed for all to see.

Sedition, a grey area

Khunti’s sedition cases go back to 2017, and the start of the “Pathalgadi movement”. Adivasis who were faced with corporate takeover of their land resorted to an innovative form of protest: they began to carve provisions of the Indian Constitution’s Fifth Schedule — that guarantees tribal autonomy — upon stone slabs, placed upon the boundaries of the village. The first information reports (FIRs) that follow allege that the police were attacked with “sticks and traditional weapons” (an allegation that the Adivasis dispute); but additionally, the FIRs also state that the leaders of the movement have been “misleading the innocent people in the name of scheduled areas”, and “erecting stone slabs presenting wrong interpretation of the Constitution”. As a result of these FIRs, individuals spent many months in jail.

The ongoing events in Khunti reveal multiple faultlines in the legal system, and multiple faults in those who implement it. A century-and-a-half after it was first enacted into the Indian Penal Code by the colonial government, the vague, ambiguous, and unclear wording of the sedition provision continues to make it ripe for abuse. Sedition is defined as “disaffection” against the government, or bringing it into “hatred or contempt”.

It should be immediately obvious that the scope of these words is boundless, and boundlessly manipulable. However, when the sedition law was challenged in 1962, the Supreme Court of India chose to uphold it, while claiming to “narrow it down”. The court noted that only acts that had a “tendency” to cause public disorder would fall within the scope of the section.

Tool of oppression

As the years since that judgment have shown, however, this dictum had no impact whatsoever on the abuse of the sedition law. To start with “tendency to cause public disorder” was almost as vague as the text or the original section. Second, as long as the section continued to exist in the form that it did, the police could, and did continue to invoke it to stifle protest and dissent; and trial courts could and did continue to refuse bail to jailed people. The failure, thus, extended to every wing of the state: to Parliament, for allowing the provision to remain on the statute books, to the Supreme Court for not striking it down when it had the chance, to State governments and State police, that have found in it a ready tool of oppression, and to lower courts, that enable prolonged incarceration of people under the section.

The playbook of the sedition law has, of course, been replicated elsewhere, in postcolonial legislation. The Unlawful Activities (Prevention) Act, or UAPA, for example, contains language that is as wide and vague, criminalising “membership” of terrorist gangs or unlawful organisations, without any explanation of what “membership” means. Under these provisions, journalists, activists, and human rights lawyers allegedly associated with events at Bhima Koregaon in 2018, were arrested later that year, and still remain in jail without a trial.

They have been denied bail by both the trial court and the High Court, raising once again the spectre of many years of imprisonment without any finding of guilt. There could be no easier way of silencing the voices of dissent.

Fake encounters

The Chhattisgarh issue, on the other hand, is a mirror image: from alleged individual violence against the state, we turn 180 degrees to state violence against citizens. The problem of “fake encounters”, which has long dogged the Indian polity, was thrown into sharp relief when the Telangana police “encountered” four people accused of a brutal rape and murder in the early hours of December 6.

It hardly needs to be said that “encounters” — and “fake encounters” — take place because there do not exist adequate structures of accountability. Without those structures, the police effectively operate in a zone of impunity. In 2009, the then High Court of Andhra Pradesh passed a landmark judgment, in which it attempted to create a regime of accountability. Central to this regime was the requirement that encounter deaths would be investigated as if they were murder cases. An FIR would have to be registered against the police officers responsible for the encounter, and to the extent that they invoked self-defence they would have to prove it.

The High Court’s judgment, however, was stayed by the Supreme Court, which then passed a series of vague and unclear guidelines a few years later, on the same subject. Even this regime, however, was given a go-by in the recent Telangana encounter case, where, acting on a public interest litigation, the Supreme Court stayed all pending proceedings (including before the Telangana High Court, which was following the guidelines), and handed over the investigation to a “committee”, with a six-month reporting period, to boot.

As the Chhattisgarh case shows, however, these committee-led investigations take years to complete, and even at the end of the process, the outcome remains unclear. Here again, then, an attempt at mitigating the stark imbalance of power between the state and the citizen , in a particularly violent and abusive context, has been progressively diluted.

The Jharkhand and Chhattisgarh incidents show that the rule of law and the Constitution continue to fail those who need it the most, and in the places where it is needed the most. And the root cause of this failure is the active complicity of the very actors who we most expect to maintain the rule of law: clearly, abusive laws are enacted by Parliament, upheld by courts, misused by the police, and sanctioned (again) by courts.

To break this seemingly unending cycle, it is important to understand that its root cause lies in how laws such as the sedition provision, the UAPA, and many others, systematically concentrate power in the hands of state agencies, and equally systematically, strip individuals and communities of legal ways to resist (the UAPA, for example, prohibits judges from granting bail if the police makes out a “prima facie” case against the accused).

In our recent history, on the other hand, we also have had examples of laws that have done the opposite: both the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, or FRA, and the Right to Information (RTI) Act, for example, have rebalanced the relationship between the individual and the state in important domains. If we are to ever fulfil the promises of freedom and equality that the Constitution of India guarantees to all, we must learn from the social movements that gave birth to the RTI and the FRA, and organise in similar ways against laws such as sedition and the UAPA.

Gautam Bhatia is a Delhi-based lawyer

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Printable version | Jan 20, 2020 1:52:33 PM | https://www.thehindu.com/opinion/lead/the-widening-fissure-in-indias-rule-of-law/article30323344.ece

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