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In India today the laws are being misused to stifle the constitutional and democratic rights of freedom of speech and expression and assembly. Intellectual/academics, civil rights activists, lawyers, political opponents and those who belong to marginalised communities like Muslims, who criticise the present regime’s policies and actions are under constant threat. Many have been put into prisons.  

The Indian Constitution guarantees not only the freedom of speech and expression under Article 19 but also guarantees the right to protest and demonstrate in public. The Supreme Court in a number of decisions has upheld this right since the 1970s. In 1973, it held (Mazdoor Kisaan Shakti Sangathan’s case) that the right to protest is an integral part of democracy and holding peaceful demonstrations by citizens is a fundamental right under the Indian Constitution. Article 19(1) (a) confers the right to free speech while Article 19(1)(b) gives the right to assemble peacefully and without arms. The SC further stated in 1972 that the court can only impose reasonable restrictions on this right in the interest of public order but cannot by law “abridge or take away the right of assembly by prohibiting assembly on every public street or every public place”. 

The present government has decimated this right. It is extremely intolerant and arbitrarily demonizes those who oppose it by branding them  anti-nationals and/or terrorists. It files cases on trumped up charges against them under draconian anti-terror laws which allow for long periods of detention without bail like the Unlawful Activities Prevention Act. For instance, in a case under this law, bail was denied to a young  activist, Natasha Narwal by a court, on questionable prima facie evidence. This lax application of evidence law is commonplace in UAPA bail applications. In 2019 the Supreme Court  has also held that bail under UAPA is an exception and there is no requirement of “elaborate examination or dissection” of the evidence while refusing bail. 

Another law which has been widely used by the BJP Government has been the Sedition law.   Though this law was enacted by British to stifle dissent, the Supreme Court has restricted the use of this law to speeches that actually incite violence. Nevertheless around 3000 arrests have taken place under this act this January alone for voicing dissent. 

One of the most brutal attacks on dissenting citizens came when they protested against the anti secular and undemocratic amendments to the Indian citizenship act (hereafter CAA) which discriminated against Muslims and allowed non-Muslim refugees from certain neighboring countries. The Government also decided to make a National Register of Citizens and update the National Population Register which many felt would exclude Muslims and other marginalized citizens. Peaceful protest sites supported by liberals and progressives and Muslims mushroomed all over India. A furious government started a counter campaign against the protestors by naming them anti-nationals and terrorists. In the third week of February 2020, a planned pogrom was unleashed in the Muslim dominated areas of North-East Delhi. From the 23rd of February onwards, mobs shouting Hindu Nationalist slogans attacked North-East Delhi targeting Muslim citizens. Muslims overwhelmingly bore the brunt of the communal violence and forty out of the 53 killed were Muslims while hundreds were grievously injured. Houses, shops and small factories were burnt and looted. Apart from those killed hundreds were grievously injured and hurt. 

The police were complicit in the violence that unfolded. A Delhi Minorities Commission Report stated that the Police were mute spectators while the assault and looting and  arson took place. In some instance they aided and abetted the rioters who belonged to and were sympathizers of the BJP and the Hindu right. The police ignored calls made to them for help and protection during the violence and in complete dereliction of their duty, did not stop the violence for about 3 days. There are also testimonies that the police committed atrocities and participated in beating up and shooting people. Some videos have emerged where the police is actively indulging in violence. One heartbreaking video shows seven police men standing over four battered young Muslim boys beating them up with long, thick sticks while coercing them to sing the national anthem. One of the boys, Faizan died 2-3 days later, apparently because of the injuries he had suffered. To date there has been no action taken against these policemen. 

The police outrightly ignored various provisions of the Indian Criminal law meant to stop arbitrary police action and giving certain basic right to arrestees. The police illegally detained people without producing them within twenty-four hours in front of the Magistrate as stipulated by Article 22 of the Constitution and the Criminal law. For instance, 19 Muslim men, were kept in illegal detention for four days and subjected to custodial torture and then produced before the court. Many alleged that the police refused to register their complaints, or that the police intimidated them to change their complaints. Though one person stated that he had witnessed his brother being shot at by the people, this fact was not written in the complaint. The list of arrestees which is mandatorily to be presented in Police Control Rooms was not done. Most of the complaints were authored by the police themselves.

In the aftermath of the riots, the police started arbitrarily arresting people. The Delhi Minorities Commission wrote to the police commissioner that young Muslim men were randomly being picked up and arrested. Several arrested were booked under trumped up charges.  Arrestees were denied calls to a lawyer or their families. Even autopsies of the dead were sometimes carried out only after the family members intervened. No inquest was carried out, despite being mandatory under the law. In the aftermath of the riots, the Delhi Police blamed the Muslims for the riots by creating a false narrative that the anti-CAA protestors had conspired to start the riots. This was completely contrary to several reports that hate speech immediate preceding the riots by some prominent members of the ruling party, and some planning by cadres and sympathizers of the ruling party had started the riot. No rule of law existed.

The CAA is not an isolated incident of oppressive legislation. Many regressive legislations including a Workers Code which whittles down the rights of employees and allows employers to introduce arbitrary working conditions and truncate the right to unionize has been passed. The Government has also introduced a law for death penalty for child rapists. It is diluting environmental laws by bypassing the procedures which allow public participation in environmental assessment of any project. It has passed a law for jailing Muslim men for practicing Triple Talaq [a form of divorce in Islam, whereby a Muslim man can legally divorce his wife by pronouncing talaq — the Arabic word for divorce, three times, in oral or written form] While on the one hand, it promotes harsher punishment for rape and sexual assault, on the other hand, cases of rape are increasing exponentially and are not getting investigated properly because of governmental support of patriarchal norms and the upper caste. In a recent case of a gang rape and murder of a young Scheduled Caste girl in Hathras, UP,  government functionaries and the police tried to protect the upper caste perpetrators by botching up the investigation by first not registering the case and then using the lack of evidence because of delayed medical examination to deny gang rape. The laws in India are being moulded to suit the will of an autocratic government.

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Kirti Singh is a noted lawyer working and practicing on women’s issues in Delhi.

The article forms part of our Whither India? series, curated by Ira Raja and Shaswati Mazumdar.


ASD Kirti Singh Whither India?


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