The other pandemic: Special criminal laws

For decades, we have been told that the necessity of special criminal laws in India arises due to the inefficacy of the ordinary criminal justice legislation we have. We have been told, without elaboration, that the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act, which broadly form the body of general laws that apply to crimes, are inadequate to deal with extraordinary crimes such as terrorism. And following this logic, we have been witness to the enactment of numerous special criminal laws. Often, such laws have been passed in the immediate aftermath of a terror attack, where public support for such measures is at its peak, and the government of the day can use that moment to push through a ‘tough’ law.

The public accepts the rationale that a crime like terror needs an extraordinary law, and we seemingly also believe that this law will be used only against people who fit our conception of terrorists, a conception that has varied from the eighties to the present day. Terror laws are only one example of several in this context.

As a result, what we can observe in the Indian criminal justice system today is a plethora of special criminal statutes. The question of how these laws are different from the general statute, the Indian Penal Code (IPC), should be considered here. The IPC also covers terrorist activities and punishes them with the highest penalty known to law. Conspiracy to wage war against the Government of India, or waging war against the Government of India, for example, are offences for which the IPC prescribes the maximum punishments of life term and death, respectively. Special laws like the Unlawful Activities (Prevention) Act (UAPA) do not substantively add to these punishments. The second question that can be asked is this: if the IPC does not cover any specific offence, why is the solution not to amend the IPC to include such offences? Why and where does the need to enact a special law come from?

The answer to the above questions lies in the details of these statutes. Often the crucial difference between special laws and general criminal laws is the modification of procedural aspects of the latter. These relate to features such as the right to bail and the presumption of innocence to name a few. The UAPA effectively limits, if not neutralises, the right to bail of accused persons, based only on a preliminary view of police proceedings into an allegation of terror. Pre-trial custody under the UAPA is also extendable beyond what is permissible under general criminal law.

What these provisions cumulatively result in is the subversion of the criminal trial. I call it subversion because laws such as the UAPA by their mere application are negations of the principles of criminal law, which are the presumption of innocence and following from it, a bar on punishment till guilt is conclusively proved. These laws effectively equate an allegation with guilt and result in punishing a person presumptively.

To allow the State to administer laws which have procedural compromises built into them is to hand over precious constitutional liberties to violation. The denial of bail is not an ordinary inconvenience, but the deprivation of liberty. One need only look at the accused in the Bhima Koregaon case for a live example, where they continue to languish in prison for years on unproven allegations and untested evidence. It is debatable if such treatment could have been meted out to the accused if they were charged under the IPC, instead. One should ask the question whether this is desirable under any civilised criminal jurisprudence, that the accused languish in prison for years on end and bail be repeatedly denied to them despite the trial not even starting.

It is also the case that these laws are usually reserved by the State for dissidents and activists and are unleashed upon them as desperate and ill-disguised attempts to secure their silence. The selective arrests of anti-CAA protesters in Delhi, occurring in the midst of a global pandemic, and the addition of charges under the UAPA, are ludicrous examples of how these laws are used. There exists a reason why these students and professors are being charged under the UAPA, and that is precisely because of what these laws allow for, which general laws do not.

To be sure, we are encountering a two-fold problem in the criminal justice system as far as laws such as the UAPA are concerned. The first and foremost problem is that these laws are precisely designed and created to allow the State to violate citizens’ rights, which is not permissible under general criminal laws. This is achieved by using the rationale and excuse of national security and countering terrorism, which the public, and it must be added, the courts, buy into. As a result, we do not scrutinise what these laws actually provide for.

The judgements of the Supreme Court in cases challenging the constitutionality of the TADA and POTA are reminders of how judicial scrutiny can be substituted by a created narrative of national security. Second, with the violations already built into the law, all that the government of the day needs to do is invoke the law against people it does not like, and let them suffer a process that is designed to be punishment in itself. As citizens, we need to reflect more closely on what these laws have done for us in all these years. The answer, in my view, is an unsettling realisation that we have been fooled into bartering our rights for a false notion of security, which has only strengthened government power.

(The writer is Assistant Professor, National Law School of India University, Bengaluru)