A Memorandum to the President of India
Peoples Union for
Democratic Rights (PUDR)
In its session in
December 2005, the Chhattisgarh Legislative Assembly passed the Chhattisgarh
Special Public Safety Bill, 2005. The Chhattisgarh Vishesh Jan Suraksha
Vidheyak, 2005 was introduced by the ruling party (the Bharatiya Janata Party)
and some of the members of the main opposition party, the Indian National
Congress, claim that the Bill was intentionally passed by the House during a
walkout by Congress legislators.
1. 1. The Bill is believed to have been sent to the
office of the President of India for assent by the Governor of Chhattisgarh,
despite it not being made available for public discussion and debate. Notably
there was no detained deliberation on the contents of the Bill in the
Chhattisgarh assembly, neither was there any public suggestion or expert
committee opinion sought with respect to the implications of this legislation.
The little public outrage seen so far has been in the context of the statement
that journalists would not be excluded by this legislation.
2.
2. The first public
reference made to such legislation was made on 5 September 2005 by the state
Home minister Ramvichar Netam in a public meeting in response to an attack by
Naxals that killed 24 jawans. The Minister stated that the Government would
shortly clear the ‘Chhattisgarh Special Public Safety Ordinance’ to combat the
growing naxal violence in the state.
3.
The need forsuch legislation is unclear. The
Chhattisgarh government already has recourse to the legal provisions available
in the Indian Penal Code and the Criminal Procedure Code to combat the violent
naxal movement. In fact all the naxal groups are already declared unlawful and
banned organisations under the new 2004 amendment to the Unlawful Activities
(Prevention) Act, 1967 (hereinafter UAPA).
4.
The present legislation clearly appears to be aimed against the sympathizers
of these organisations and also against the political dissent of all kind. Furthermore
while the particular attack on the jawans in September may have triggered the
public call for such legislation, the Ordinance and subsequent Bill themselves
are inspired from and draw heavily on the Madhya Pradesh Special Areas Security
Act, 2001.
.5
See ‘Cong to appeal to
President’, The Times of India, 16 February 2006 See ‘Chhattisgarh government
adopts law that could put journalists in prison’, Reporters Without Borders, 8
September 2005, at http://www.rsf.org/article.php3?id_article=14900
3 See ‘Chhattisgarh
moves to ban naxalite outfits’, Hindustan Times, 5 September 2005, at http://www.hindustantimes.com/2005/Sep/06/5922_1483456,0015002100000000.htm The UAPA
1967 was drastically strengthened by a central government amendment in 2004 to
provide a draconian pan-Indian legislation to combat organisations declared as
unlawful and terrorist. This amendment was carried out on the same day that
POTA was repealed.
This critique must
therefore be read to apply to both the M.P Act and the Chhattisgarh Bill to the
extent that the provisions of the two legislations are similar. Peoples Union
for Democratic Right (PUDR) has previously raised objections and concerns with
respect to the draconian UAPA.
6 The
Chattisgarh Bill however goes well beyond the UAPA in terms of provisions that
violate human rights standards as also for its lack of safeguards. This note,
while not a comprehensive critique of the Bill, is intended to highlight some
of the key areas and provisions of the Bill that PUDR is concerned about:
(A) The Chhattisgarh
Special Public Safety Bill, 2005 dramatically broadens the ambit of what is
deemed ‘unlawful’. In section 2(e) of the Chhattisgarh Bill, “unlawful
activities” includes any act (or communication
verbally or in writing
or by representation) by a person or organisation:
I. Which poses a danger or
fear thereof in relation to public order, peace or tranquillity; orII. Which poses an
obstacle to the maintenance of public order, or which has a tendency to pose
such obstacle; or
III. Which poses, or has
a tendency to pose an obstacle to the administration of law or to institutions established
by law or the administration of their personnel or;
IV. Which intimidates
any public servant of the state or central government by use of criminal force
or display of criminal force or otherwise; or
V. Which involves the
participation in, or advocacy of, acts of violence, terrorism or vandalism, or
in other acts that have a tendency to instill fear or apprehension among the
public or which involves the use, or the spread or encouragement, of fire-arms,
explosives or other devices which destroy the means of communication through
the railways or roads; or
VI. Which encourages the
disobedience of the established law or the institutions set up by law, or which
involves such disobedience; or Furthermore Section 2(e) (VII) provides that the
accumulation of large sums of money or large quantities of material goods with
a view to furthering any of the above acts would also be an “unlawful act”.
Similarly Section 2(f) provides, rather loosely, that any organisation engaged
in
any of the above
(whether directly or indirectly) or whose aims are to further, or aid, or
assist, or encourage, through any medium, device, or other way any unlawful
activity would be an “unlawful organisation”. By this definition, the
Chhattisgarh Special Public Safety Bill, 2005 adopts broadly the definition of
unlawful activity in the M.P Act – going well beyond the definitions of
“unlawful activity” and “terrorist act” in Sections 2(o) and 15 respectively of
the UAPA.
7. In
fact only Section2(e)(V) compares to the understanding of terror as contained
in the UAPA. By broadening the scope of ‘unlawful’, this Bill ignores the principle
of certainty of offences in criminal law. The categorisation of activities as
unlawful banks entirely on subjective interpretation. In fact 6 For a critique
of the Act, see Obsessive Pursuit: The Unlawful Activities Prevention Act, 2004:
Reinforcing a draconian law, PUDR, January 2005: Delhi. With the exception of
sub-clause IV, the remaining section is similar to the definition in the M.P
Act. through the MP Act and this Bill, an entire new layer of imprecise and vague
‘unlawful activity’ is sought to be introduced – applicable only in the
central-Indian states of Madhya Pradesh and Chhattisgarh. This vagueness extends
the reach of this Bill to just about any person or organisation, allowing
(inherent) potential for misuse and abuse of the legal process – patterns that have
been only too obvious with TADA and POTA previously. The reference to
‘tendency’ to do certain acts in Section 2(e) II and III also ignores the very
basics of criminal law jurisprudence by which intent
to commit an act cannot
be punished and only the acts and attempts to commit certain acts can be
punished. Furthermore by seeking to bring criminal liability upon persons who
the State perceives to have a tendency to commit offences, this Bill gives the
state arbitrary powers to effectively decide who is “unlawful” irrespective of
the person’s or organisations acts or intentions. The reference to ‘unlawful
activities’ being committed by communication– verbal or written or even by
representation in Section 2(e) raises concern that this particular provision
may be used against journalists and media-persons or any individuals who
publish or telecast news or images relating to naxal activities or reporting on
state repression. Such vague and broad language only gives unbridled power to
State agencies and invariably lead to misuse. At present propounding and
encouraging disobedience of any law is a valuable freedom and an essential
ingredient of a democracy. Section 2(e) clause VI makes ‘encouragement to disobedience
of established law and its institutions’ an unlawful activity. The target of
such provisions are often writers, poets or other individuals who may share a
political ideology but are not part of the organizations declared as unlawful.
Such provisions may also be used against academic and civil society seminars
and meetings highlighting state repression and questioning state policies. Such
restrictions on the constitutional freedom of speech and expressions cannot be
considered reasonable restrictions and are a severe curtailment of democratic
rights. Under Section 8(4) seven years imprisonment is provided for a person who
commits any unlawful activity or makes abetment to that or tries to comment or
plans to commit shall be imprisonment up to seven years. Given the broad and
vague definition of ‘unlawful activities’ in Section 2(e), this amounts to
harsh and severe punishment which fails to distinguish between committing
violent acts on the one hand and ‘having a tendency’ to create danger to public
order or encourage disobedience to law and institutions and the other.
(B) The state government
can arbitrarily declare any organisation 'unlawful' for a period of one year [Section
3(1) and 3(4)] of and it need not necessarily give grounds of the declaration
[Section 3(2)]. Furthermore organisations that may seek to contest being
declared unlawful are given only 15 days in which to make representations
before the Advisory Board (Section 4).
Questions also need to
be raised with respect to the composition of the Advisory Board. Section
5(1)(b) allows the three-member board to consist of retired High Court judges
or even those who are qualified to be a High Court judge. This is a dilution of
safeguards as it ensures that the credibility of the advisory board is reduced
in as much that senior lawyers sympathetic to the ruling party can be made
members of such a board. In contrast even UAPA requires that the Tribunal
established must be staffed by sitting High Court judges.
(C) Section 8(1) of the
Chhattisgarh Bill provides for up to three years imprisonment for merely being
a member of an organisation declared unlawful. In criminal law a person is
required to commit a specific act in order to be punishable. Mere membership
without participating in other concrete acts is against the basic canons of
criminal law.
Furthermore section 8(2)
of the Bill also provides for upto two years imprisonment for persons who not
being members of any unlawful organisations may in any manner even make
contributions. Peculiarly the Bill does not define contribution nor does it
make a distinction between knowingly and unknowingly contributing. In fact the
absence of knowledge and intention, as a pre-requisite to pinning criminal
liability is a recurring and dangerous feature found in various provisions of
this Bill.
(D) The Bill also
provides sweeping powers to the District Magistrate with respect to notifying a
place being used for the purpose of unlawful activities and taking occupation
thereof and seizure of properties
(Sections 9 & 10). The
provision for notification of any place as being used by an ‘unlawful organisation’
under Section 9(1) does not provide an objective criteria on the basis of which
this decision may be made. There is no requirement for any material or evidence
to be placed on record prior to the decision
to declare the place as
‘notified’ and there is no opportunity for hearing provided before the formation
of the opinion thus violating all tenets of natural justice.
Furthermore there is
even no remedy of appeal or review provided against such arbitrary powers and
decisions that may be made by the District Magistrate. In fact Section 14 goes
even further by providing an ‘ouster of jurisdiction’ clause and providing that
action taken under this Bill by any officer authorised by the government for
this purpose or by the District Magistrate shall not be questioned before any
court.
Of particular concern is
Section 9(2) that allows the District Magistrate to evict persons living in any
place notified as being used for activities of ‘unlawful organisations’.
Similarly Section 10(1) allows the District
Magistrate to seize all
movable properties found in notified places. Such seizures may also include
agricultural and other trade implements and even livestock thus severely
affecting the livelihood of affected persons. Representations relating to the
properties seized are to be made to the District Magistrate himself and even
the appeal provided for is to the State govt. Similarly the powers of
forfeiture are to be exercised by the State Government (Section 11), but they
may be delegated to the District
Magistrate [sec.
11(11)].
It is important to note
that powers of seizure and forfeiture are ordinarily exercised by the judiciary
and transfer of such vast powers to the executive can lead to gross abuse,
especially to harass family members of persons accused of being involved in
'unlawful activities'.
PUDR is concerned that
the transfer of judicial powers to members of the executive along with ouster
of jurisdiction of the courts is dangerous as it provides for vast and
unchecked powers. More so given that a large number of people are unable to
access constitutional remedies available in the High Court and Supreme Court.
PUDR believes that the absence of judicial review and transparency can only
lead to increased misuse of this legislation.
Conclusion
In the name of combating
violent movements the Chhattisgarh government is bringing in a legislation
which would target all peoples movements, civil liberties and democratic rights
organisations, other groups challenging the State’s human rights record and
questioning the State’s understanding of development as also its anti-people
development policies. This is also reflected in the Statement of Object and
Reasons of the legislation which states that the Bill is required to be enacted
to keep a control on organizations and individuals who engage in disruptive
activities and create an atmosphere of terror and fear thereby having an
adverse impact on the security and development of the State.
After the passing of the
Madhya Pradesh Special Areas Security Act by the state legislature, a large number
of peoples’ movements and organisations, trade unions etc had issued a press
release expressing concern that the enactment was targeting dissenters and even
those who opposed the state in a non-violent manner.8 The results of the M.P
Act were soon evident as the law was even enacted in the three districts of
Mandla, Dindori and Balaghat though none of these districts had any significant
presence of naxal or other armed groups. Instead the use of the MP Act in these
districts which were
host to a large tribal
population and emerging local movements for control of local natural resources
was predominantly to harass the local groups and dissuade them from protesting
against state policies.9 8 ‘Targeting people’s organisation in the name of
Naxalism’, PUCL Bulletin, Feb 2001.
9 Special ‘Security’
Legislation and Human Rights, Amnesty International India, December 2002:
Delhi.
By including a clause
penalising those not even members of unlawful groups, the Chhattisgarh Bill has
even exceeded the M.P Act. The use of the Bill against peaceful protest groups,
peoples movements and democratic rights groups is inevitable given the growing
discord between state policy and peoples interest. What this Bill will do is
give the local administration at the district level huge powers to forfeit monies
and seize movable and immovable property without any system of appeal, thereby
only increasing corruption and harassment.
The Chhattisgarh Special
Public Safety Bill, 2005 is a perfect example of legislation enacted in the
garb of security and protection, leading to increased repression and
suppression of peoples rights. PUDR calls upon the President of India to reject
the Chhattisgarh Special Public Bill, 2005 and refuse to give his assent to the
Bill.
***
3 March 2006
Peoples Union for
Democratic Rights
5, Miranda House
Teachers’ Flats
Chhatra Marg, Delhi
University
Delhi – 110 007