Laws to be Outlawed!

This exercise has been undertaken is to identify legislations, which in their entirety, either in conception or implementation or both, are regressive and incompatible with a modern and progressive constitutional morality. Some of these laws are colonial in origin and have been adopted for continued use in post-independent India. However, not all of these are archaic; some of them are of recent origin but are incompatible to fundamental and essential constitutional values – gender equality, free speech and expression, personal liberty, non-discrimination, dignity and privacy. 

For the purpose of this exercise, we have identified laws that deserve closer examination that can be broadly categorised as laws adversely affecting life and liberty usually passed under the guise of ensuring ‘national security’ and those that are based on an outdated and biased perception of certain communities that results in their persecution. 

When it comes to laws that adversely impact the life and liberty of people in the context of ensuring national security, the following deserve to be discussed. Repressive laws concerning security range from the Armed Forces (Special Powers) Act, 1958 (AFSPA) to various Public Safety Acts and other state legislations to the notorious Unlawful Activities (Prevention) Act, 1967 (UAPA) which negate liberty and freedom in the name of protecting national security. While some of these laws are enacted as “temporary” with the promise that they would be repealed once their purpose is served, that does not often take place – even if some of them may have either lapsed or repealed, several draconian provisions of such laws get incorporated into current legislations in force. 

While the Unlawful Activities Prevention Act, 1967 itself has been a draconian law, the recent amendment to the Act which allows the state to designate individuals as ‘terrorists’ is an alarming development. The exceedingly vague definition of terrorism, criminalising mere membership of banned associations, extremely harsh bail restrictions, long detention periods – all cumulatively violate the constitutional guarantees of due process. Existing criminal laws in the Indian Penal Code are sufficient to deal with acts deemed to be terrorist activity, extraordinary provisions in laws like UAPA are used to stifle freedom of expression and lock up political dissenters, activists, human rights lawyers and anyone the state arbitrarily deems a threat, completely subverting the basic tenets of the criminal justice system. 

Earlier this year, the Ministry of Home Affairs made it clear that there is no proposal to repeal the Armed Forces (Special Powers) Act, 1958. However, it is essential to revisit the arguments in favour of its repeal. The AFSPA was modelled on the British Indian Armed Forces (Special Powers) Ordinance, 1942, a colonial legislation put in place to subdue the ‘Quit India Movement’. It was reviewed by the Justice B. P. Jeevan Reddy Committee in 2005, which recommended that the Act should be scrapped. The Committee called the AFSPA “a symbol of oppression, an object of hate, and an instrument of discrimination and high-handedness.” As human rights activists have noted time and again, AFSPA provides immunity from prosecution for serious human rights abuses by the armed forces, leaving victims with no scope for securing justice.

At the state level, we are looking at the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1985, also known as the Goonda Act, with its wide ranging preventive detention provisions infringes on human rights and is patently incompatible with the Constitution. 

While there are many laws and legal provisions that would under this reading of the law, for the purposes of this exercise, we have limited the list to those legislations that are, on a plain reading, have no place in a modern progressive constitutional democracy like India.