Manipur, Nuh and the criminal law amendments: Terror outside the law and the injustices of the law
By PUCL Bulletin Editorial Board
Even as we write this editorial, the Manipur crisis, which is one of the most serious crises affecting the Indian state enters its fourth month. For over four months, the Central Government has criminally stood by and watched even as the division between the hill regions of Manipur and the valley regions of Manipur has hardened immeasurably. Even as the valley regions of Manipur were ethnically cleansed of Kukis, with Kukis suffering rape, murder and destruction of places of worship and the hill regions were emptied of Meiteis, the state stood by as a mute if not complicit spectator. The administration under Biren Singh has failed in the most elementary duty of a state which is to preserve law and order and protect the lives of all persons who inhabit its territory. The Central government has abysmally failed to fulfil its constitutionally mandated responsibility under Article 355 of the Constitution to ensure that ‘ governance of every state is carried on in accordance with the provisions of this Constitution.’ On the contrary, the Home Minister has given a clean chit to the underperforming state administration led by Biren Singh. All those with faith in the constitution are clear that the state government should be dismissed forthwith and should make way for a government which has the trust of all the communities in Manipur. The process of restoring trust, which needs to happen is still a long way off and the absolute sine qua non is the dismissal of the (at best) spectacularly incompetent and at worst (a criminally culpable) state administration.
The BJP administration apart from allowing Manipur to burn, has to take responsibility for the tragedy in Nuh as it is the ruling party. It has become a provocative practice for Hindutva groups to insist on holding processions which go through minority areas. The provocation comes in the nature of slogans, provocative whatsapp forwards by people such as Monu Manesar who is a murder accused, calls for murder as well the display of arms. It was this provocation which resulted in a cycle of violence and counter violence finally culminating in the state taking upon itself the task of arbitrarily punishing only the Muslim community as a whole for the violence. The punishment took the form of illegally bulldozing the homes and shops of Muslims alone followed by the arrest of Muslim youth. As Gautam Bhatia argues the demolitions of Muslim homes and establishments is outside the frame of rule of law, violates the constitutional principle of the right of all persons to livelihood and is a form of arbitrary collective punishment which has no constitutional sanction.
The state’s response of bulldozing only the homes of Muslims elicited a sharp response from the Punjab and Haryana High Court labelling it a ‘form of ethnic cleansing’. This practice of employing the bulldozer in Uttar Pradesh, Madhya Pradesh, Delhi and Haryana degrades Indian democracy. When the state begins to act outside the rule of law, then the state itself becomes an instrumentality of terror. What is terrorism if not the employment of means of violence outside the rule of law meant in particular to induce fear in the minority community? Unless this unconscionable practice of the state deploying the bulldozer is stamped out, the Indian state will metastasize itself from a constitutional state owing allegiance to the rule of law to a rogue state.
The Central Government is operating outside the rule of law both directly and indirectly. The support to the Bajrang Dal, Vishwa Hindu Parishad and other allied organisations to threaten, intimidate and provoke as in Nuh has the tacit support of the state administration. With illegal demolitions the state crosses a line and itself becomes a purveyor of illegality, nay terror itself. The hubris of disregarding the Constitution is hinted at in the order of the Punjab and Haryana High Court order staying demolitions, which quoted Lord Acton’s timeless insight that “Power tends to corrupt, and absolute power corrupts absolutely.”
The Central Government even as it degrades the rule of law and besmirches the Constitution through its silence and evasions ( as in Manipur) and arbitrary executive action ( as in Nuh), is also attempting to weaken the legal framework. In a move which is of deep concern, the Central Government this parliament session introduced three bills to replace the Indian Penal Code, Criminal Procedure Code and Indian Evidence Act. The Bharatiya Nyaya Sanhita to replace the Indian Penal Code; the Bharatiya Nagarik Suraksha Sanhita to replace the Code of Criminal Procedure and the Bharatiya Sakshya Bill is to replace the Indian Evidence Act.
The Bills are a performative gesture in the direction of the so called agenda of ‘decolonization’ ignoring the express mandate of the constitution. Article 348 of the constitution mandates that ‘authoritative texts of all Bills to be introduced in parliament…shall be in the English language’. ‘Decolonization’ in the Government’s understanding seems to synonymous with the imposition of Hindi ! Even the Government’s argument that they are ridding us of colonial laws has no basis in fact as studies of the changes indicate that over 80% of the old codes are retained. However the changes are likely to have serious implications for the future of human rights. The Hindi replacement of the Indian Penal Code has replaced sedition with a provision which criminalise whoever ‘excites or attempts to excite, secession or armed rebellion or subversive activities, encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India.’ In its essence Section 150 of the BNS remains a speech offence, criminalizing speech which should rightly be protected speech under Article 19(1)(a). In fact the ambit of criminalisation has become broader with the offence becoming vaguer with serious implications for the right to expression and association. The PUCL will study these changes, host discussions and strive to facilitate a greater public understanding of these three bills.
The other law passed by parliament with serious implications for human rights is the Digital Personal Data Protection Act, 2023 which again empowers the state at the cost of the individuals right to privacy in violation of Supreme Court decisions. The right to privacy of the individual as pertains to his or her online information is now subject to the whims of the government. As per Section 17(2), the Central Government can exempt by notification any ‘instrumentality of the state’ in the interests of ‘sovereignty and integrity of India’ and other grounds in Article 19(2) of the Constitution from the obligation to safeguard the right to privay of the individual. Thus the individuals right to online privacy can be violated by the Central Government through a mere notification, without conforming to the standards laid down for limiting the right to online privacy in Puttaswamy v Union of India.
On 13th September we will mark “Political Prisoners’ Day” in India. This day marks the martyrdom of Yatindra Nath Das, a comrade of Bhagat Singh, after a long hunger strike in jail. The significance of remembering ‘prisoners of conscience’ today is even more relevant in the context of the regime’s prolonged war against writers, artists, thinkers, activists and lawyers. Many of the BK-16 have marked over 5 years in jail, with 9 of them still in jail. With respect to the anti-CAA protestors, of the 18 people arrested under FIR 59 of 2020 in which the UAPA was invoked, 13 are still in jail with the bail applications still pending either before the High Court of the Supreme Court. Its imperative that these prisoners and many others like them in Kashmir, Chattisgarh, Jharkhand, the North East of India and other parts of the country as well who are in jail for being dissenters be released at the earliest as in a democracy dissent is a right ! Seema Azad’s piece evocatively traces the historic importance of prisoners day right down to the contemporary moment.
This issue also carries a poignant note by the Kashmirwalla staff, which states that, ‘ we woke up to another deadly blow of finding access to our website and social media accounts blocked.’ Kashmirwalla was one of the independent online sources of information on Kashmir which has been subjected to unremitting persecution by the state. Its founder Fahad Shah was arrested in 2022 and still remains incarcerated. Its trainee reporter Sajad Gul is also in prison. As the authors of the letter put it, ‘The Kashmir Walla has strived to remain an independent, credible, and courageous voice of the region in the face of unimaginable pressure from the authorities while we watched our being ripped apart, bit by bit…the Kashmir Walla’s story is the tale of the rise and fall of press freedom in the region’. These arrests as well as the shut down of any on-line distribution of news marks a low in the Government’s clamping down on the freedom of expression in Kashmir. It is violative of the constitutional right of the freedom of speech and expression and has to be condemned in no uncertain terms.
Finally, we note a sliver of hope in this otherwise dark time in the Supreme Court decision which released Vernon Gonsalves and Arun Ferriera on bail. Senior Advocate Mihir Desai makes a case for the significance of the judgment in Vernon Gonsalves v State of Maharashtra as diluting the rigours of the denial of bail under the UAPA. He notes that the Supreme Court held that the ‘mere possession of certain literature through which violent acts and methods of overthrowing democratically elected government may be propagated would not on its own attract the provisions of the UAPA.’ Significantly the Supreme Court has held that the holding of opinions by itself is not a criminal offence of terrorism under the UAPA, thereby underlining the significance of dissent in a democracy.
The struggle continues !