Since the dawn of the idea of the nation-state, paramount significance is given to the notion of security which was intended toward the preservation of the territorial borders of a country from external nation-states. This notion held its clout since then in the security priorities and functioning of the government of the day. The definitional, and practical, application of security since then underwent a radical shift in each of the intervening centuries as the notion of security shifts from merely preserving the territorial defence of a country to the preservation of internal stability and security.
Traditionally, when it comes to the notion of security as merely preserving territorial defence, the enemy is known and identified thus making the application of security a matter of clarity and precision, leaving little ambiguity as to its application. But with shifting sands in the geopolitical composition of the world including periods of colonialism, World Wars, post-colonialism, and globalization, the notion of security going significant transformation from merely be the reserve of territorial defence to also maintaining a strong social cohesion within the boundaries of the state gave prominence in the state apparatus of thinking and application of security.
This modern transformation of the notion of security from being the reserve of the only foreign environment to also negotiating a space in domestic challenges to the established order gave the notion boundless prominence in the state apparatus. Eventually, with the rising threat of terrorism and insurgencies, the notion was applied liberally by many nation-states to subdue opposition from armed and unarmed group to the status quo by terming them as a threat to the social stability of the country, leading to the application of security which poetically termed as the ‘cries of the oppressed’.
Being an inheritor of the British strategic legacy including its normative legislative behaviour, geography, and security constructs, India as the largest nation-state geographically in comparison to its immediate neighbours, inherits the problem set and ideas of security from the British security establishment. Imagined as a post-colonial construct, the nation-state of India has been confronting acute threats to its territorial sovereignty which largely stems from its domestic configuration than overt foreign interventions.
Although the Indian constitution guarantees that the disparate set of tribes, ethnicities, and religions are part of the whole Indian nationalism, Indian sovereignty is challenged since the post-colonial establishment of the nation-state by the restive population. This challenge mostly centred in Northeast India and Indian-occupied Kashmir along with intermittent challenges by Sikh nationalists is a resource-straining security issue to the territorial sovereignty of the Indian state.
To confront these disparate set of security challenges to its territorial integrity and security of the state, the Indian government enacted various legislations which are presumably per the letter and spirit of the Indian constitution and international human rights accord to which India is a signatory, but in practice are more in the spirit of a draconian legislative armour of the state to fight the separatists’ challenges with a hardened approach.
In the benefit of understanding, we will take four Indian security laws to illustrate the absolute impunity which the state enjoys and the draconian intervention in the civil liberties of the people. These laws are the following: Unlawful Activities (Prevention) Act (UAPA) (1967), Sedition, Jammu and Kashmir Public Safety Act (PSA) (1978), and National Security Act (1980).
Among these sets of laws, the Sedition offence is the most impunity-guaranteeing and despotic compared to the rest. Taken from the British colonial administration, the act of 1860 embedded in the Indian penal code as Section 124A criminalizes any representation in visuals, written or spoken words which can instigate “hatred or contempt, or excite or attempt to excite disaffection” towards the government of the day.
But Indian legislative armour interprets the law as to seditious when incitement leads to impending violence. The penalty for violation of this ambiguous law is life imprisonment as the offence is a non-bailable one. This law has been extensively used by the Indian government of various ideological inclinations to browbeat its political opponents and dissenting views more than separatist challengers. The law has been liberally used by successive Indian governments to intimidate critical views.
From the extensive list of the accused, one can see names from literature such as Arundhati Roy, student activities such as Kashaiya Kumar, or politicians such as Akbaruddin Owaisi. While the law has been liberally used, it has resulted in a far lesser conviction rate. The law is also facing consistent calls for its repealing. Furthermore, the law as a colonial relic is not per the international standards of human rights and even in violation of the freedom of expression guaranteed by the Indian constitution.
The second most repressive law is the Unlawful Activities Prevention Act (UAPA). The law has been touted as an instrument of state to prosecute terrorism. Enacted in 1967, the law underwent amendments in successive years, the latest one in 2019, which grants the Indian government absolute power to prosecute any individual or group in detention “without charge” for more than three months, violating international standards for detention. Even more so, the definition of what constitutes “terrorism” is termed as “any unlawful activity” thus giving the government wide-ranging powers with impunity.
Before its 2019 amendment, the law was challenged in scores of litigation on the aspect of mere holding of membership, or association, of an organization which government sees as an unlawful or terrorist entity. However, in 2019, the amendment led to a wide-ranging concentration of power within the law as it grants the government absolute power to direct the law toward any entity it felt constitutes ‘terrorists’. The suspects then could be held without trial for more than three months.
While the law aimed at curbing terrorist activities, the statistical data paints a different picture. The conviction rate under UAPA is 29.2%, with an overwhelming number of cases before the Indian courts. Alongside this, there’s exist a drastic statistic of 67% of cases leads to discharge or acquittal. It then follows that law, like Sedition law, is used more in line with successive governments attempt to intimidate its critics and political opposition than curbing terrorism. Recently, the law is notoriously used by Indian administration including police to book Indian activists protesting new citizenship amendment acts which including prominent Indian activist Umar Khalid.
In the most glaring disregard for the fundamental universal human rights, the Indian government enacted the Jammu and Kashmir Public Safety Act (PSA) in 1978 to curb the occupied territories sentiments of separatism. The law, infamously termed as “lawless law“, is used to detain, without charge or trial, any person from the Indian-occupied Kashmir for two years. Maintaining a perception of stability and peace in the Indian-occupied valley, the Indian state irrespective of national governments regularly bypasses the valley’s prosecution system to interrogate “separatists” under this despotic law.
The law, since its enactment, has been attracting a global outcry over its despotic application to the people of a territory which is, by international law, a disputed one. After abrogating constitutional clauses in the Indian constitution regarding Indian-occupied Kashmir, the law has been used by the Indian government to book the valley’s politicians. Ironically, these same politicians used the same law against their political opponents in the valley when they were in power. Due to its oppressive nature, the law has been variously criticized as the most shocking example of the stringent and repressive Indian legislative armour.
Lastly, the National Security Act, which was enacted in 1980, gave legal cover to the Indian administration to detain for a year in ambiguous notions of “national security” and “public order” without charge or trial. Though coming in the decades of organized crime prominence in New Delhi and India’s financially important cities, the law intended to cripple the networks of organized crime in the urban areas. But, as time passed on, the law has been used, like UAPA and Sedition, to targeted intimidation of government critics and political opposition, expanding more than its intended application. The law is so repressive that the detained, or charged, person is not informed of the reason for the arrest.
As the long review of the four primary instruments of Indian state repression shows, the laws are intently kept ambiguous in their definitions to expand the scope of government powers to charge anyone with whom it shares a troubling relationship; be they separatists or political opposition. These laws expand the government’s ability to obscure the real intent behind the arrests under the ambit of national security, territorial sovereignty, and social stability. More than its application for terrorists, criminals, and separatists, the law has been extensively used for the detention of the political opposition and critical voices in academia, journalism, and civil society. These laws gave any Indian government broaden powers and an extensive legal cover to prosecute arrest and intimidate critical voices without the fear of juridical interventions. As has been noted above, the increasing voices of civil society, politicians, and international organizations against these repressive laws should navigate away to repeal these legally introduced laws and subject India to even the most fundamental standards of its constitution and to the international human rights conventions.