File spoon-archives/seminar-12.archive/transl-asia_1997/seminar-12.9711, message 2


Date: Sun, 02 Nov 1997 07:58:19 -0800
From: Indian Progressive Study Group <ipsg-AT-maestro.com>
To: Indian Progressive Study Group <ipsg-AT-maestro.com>
Subject: India: The Resurgence of "Black Laws"


Status:   



"BLACK LAWS" HAVE NO PLACE IN DEMOCRATIC GOVERNANCE
Statement of the Association of Indian Progressive Study Groups (AIPSG)
New York, October 31, 1997

The Association of Indian Progressive Study Groups (AIPSG) is deeply
concerned about the trend among the authorities in India to add more
"black laws" to the arsenal of existing anti-democratic laws, and calls
upon everyone to oppose their use in any form.

In the last month the Jammu & Kashmir government ratified the Disturbed
Areas Act, originally promulgated under decree during President's Rule,
that gives the security forces full powers of shoot-to-kill, as well as
search and seizure - without fear of prosecution or accountability.
Meanwhile, the Andhra Pradesh government is reportedly drafting new
legislation that would reinstate provisions from the now-expired TADA
law, including detention without charge or bail, secret in-camera
trials, and a reversal of the burden of proof, so that its defendants
are assumed guilty until proven otherwise.

This comes in addition to at least eight similar "black laws" on the
books, the most notorious of which is the Armed Forces (Special Powers)
Act, passed in 1958 for use in Nagaland.  Not only is the AF(SP)A still
in effect there, almost 40 years later, but it has since been extended
throughout the north-east to include Assam, Mizoram, Tripura and
Arunachal Pradesh, and has periodically been used elsewhere, including
Kashmir.

While these black laws differ in their legal provisions relating to
preventive detention, bail, burden of proof, search and seizure, or
shoot-to-kill, they are uniform in one respect - they legalise
arbitrariness on the part of the law-enforcement agencies in the name of
maintaining "law and order".  Under their protection, the security
forces are a law unto themselves - they are in effect, the prosecutor,
witness, judge and executioner in one.

The cumulative experience in India with regard to black laws - from the
days of the Rowlatt Act in the colonial period to today - is that they
provide legal cover for eliminating the political resistance of the
people.  These political struggles have taken many forms over the
years.  The organised parliamentary parties take their fights to the
floor of the Lok Sabha or the state assemblies.  But the most important
political struggles in India have actually taken place outside the locus
of parliament, and outside the sway of parliamentary parties who have
discredited themselves on numerous occasions through their opportunism
and narrow aims.

It is these extra-parliamentary struggles of the people which are the
targets of attack through black laws and state terrorism.  It is only
natural that extra-parliamentary struggles erupt, because the scope that
exists for people to participate in the exercise of political power
within the current electoral mechanisms is minimal.  But whenever people
take up extra-parliamentary struggles outside the control of one of the
official parties, they are invariably considered a "law and order"
problem.  It is ironic that instead of seeking to renovate the political
process with new mechanisms that can tackle the serious shortcomings in
the present political process, the state only innovates with respect to
new laws to crush these struggles.

The validity of India's myriad black laws has also been examined from
time to time since 1950 by the High Courts and the Supreme Court.  But
on each occasion, the judiciary has ruled that black laws are in fact,
in keeping with the provisions of the Indian constitution.  Recently,
they even upheld the continued detention of TADA victims, even though
TADA itself has since lapsed.  This is a matter of grave concern,
because many consider the Indian constitution as the ultimate guardian
of their rights.  But in actual fact, it fails to defend any right as
inviolable, and subjects each one to "reasonable" limitations.  It is
the constitution that establishes the primacy to the executive branch of
government over all others, and which contains provisions that permit
the legislation and exercise of black laws.

To date, the National Security Act (NSA), the Maintenance of Internal
Security Act (MISA) and the Terrorist and Disruptive Activities
(Prevention) Act (TADA) have all had to lapse because of the weight of
popular opposition.  Of course, in each case, a variant of each one has
since been brought back to life under one pretext or another.  According
to published reports, the Home Ministry in Delhi is currently drafting a
variant of TADA for consideration by parliament in its next session.

The opposition of the Indian people to state terrorism in general and to
black laws in particular is deeply rooted.  For that matter, the ancient
Indian legal codes themselves advised the praja to do away with a tyrant
raja.  In modern times, this opposition has been manifest in the
resounding electoral defeats that people have handed to state
governments in West Bengal in 1977 or Punjab in 1997 - and even in the
case of the central government itself after the Emergency in 1977.

In each of these cases, people had risen against Congress(I) governments
for their use of state terrorism.  What is noteworthy now - and
particularly in the period since TADA was promulgated, is that the
advocacy or use of black laws is no longer identified with just the
Congress (I), but by virtually all political parties in power.  Whether
at the state-level or at the Centre under the United Front coalition,
parties ranging from the Telugu Desam, DMK, Akali Dal, Asom Gana
Parishad, BJP, Janata Dal, National Front (Kashmir), CPI, or CPI(M) have
brought disrepute upon themselves because of their implicit support or
use of black laws - even though most of these parties have themselves
been victims of state terrorism at one time or another.

In the opinion of the AIPSG, it is urgent for people to demand that the
Indian state withdraw the use of black laws from all parts of India, and
reject any future attempt to enact such legislation.  People who
participate in political opposition just cannot be dismissed as "law and
order" problems and be dealt with through incarcerations and fake
encounters.  All those being held in detention under the black laws must
be immediately released and compensated.  This must be a demand of all
the people of India, irrespective of their backgrounds, or where they
live, for an attack on the rights of any part of the polity is an attack
on the rights of all.  Black laws are a black mark on democracy, always
and under all circumstances.



Association of Indian Progressive Study Groups (AIPSG)
Earl Hall, Columbia University, New York, NY 10027

Email:    ipsg-AT-maestro.com
Web:    www.columbia.edu/cu/ipsg



HTML VERSION:

"BLACK LAWS" HAVE NO PLACE IN DEMOCRATIC GOVERNANCE
Statement of the Association of Indian Progressive Study Groups (AIPSG)
New York, October 31, 1997

The Association of Indian Progressive Study Groups (AIPSG) is deeply concerned about the trend among the authorities in India to add more "black laws" to the arsenal of existing anti-democratic laws, and calls upon everyone to oppose their use in any form.

In the last month the Jammu & Kashmir government ratified the Disturbed Areas Act, originally promulgated under decree during President's Rule, that gives the security forces full powers of shoot-to-kill, as well as search and seizure - without fear of prosecution or accountability.  Meanwhile, the Andhra Pradesh government is reportedly drafting new legislation that would reinstate provisions from the now-expired TADA law, including detention without charge or bail, secret in-camera trials, and a reversal of the burden of proof, so that its defendants are assumed guilty until proven otherwise.

This comes in addition to at least eight similar "black laws" on the books, the most notorious of which is the Armed Forces (Special Powers) Act, passed in 1958 for use in Nagaland.  Not only is the AF(SP)A still in effect there, almost 40 years later, but it has since been extended throughout the north-east to include Assam, Mizoram, Tripura and Arunachal Pradesh, and has periodically been used elsewhere, including Kashmir.

While these black laws differ in their legal provisions relating to preventive detention, bail, burden of proof, search and seizure, or shoot-to-kill, they are uniform in one respect - they legalise arbitrariness on the part of the law-enforcement agencies in the name of maintaining "law and order".  Under their protection, the security forces are a law unto themselves - they are in effect, the prosecutor, witness, judge and executioner in one.

The cumulative experience in India with regard to black laws - from the days of the Rowlatt Act in the colonial period to today - is that they provide legal cover for eliminating the political resistance of the people.  These political struggles have taken many forms over the years.  The organised parliamentary parties take their fights to the floor of the Lok Sabha or the state assemblies.  But the most important political struggles in India have actually taken place outside the locus of parliament, and outside the sway of parliamentary parties who have discredited themselves on numerous occasions through their opportunism and narrow aims.

It is these extra-parliamentary struggles of the people which are the targets of attack through black laws and state terrorism.  It is only natural that extra-parliamentary struggles erupt, because the scope that exists for people to participate in the exercise of political power within the current electoral mechanisms is minimal.  But whenever people take up extra-parliamentary struggles outside the control of one of the official parties, they are invariably considered a "law and order" problem.  It is ironic that instead of seeking to renovate the political process with new mechanisms that can tackle the serious shortcomings in the present political process, the state only innovates with respect to new laws to crush these struggles.

The validity of India's myriad black laws has also been examined from time to time since 1950 by the High Courts and the Supreme Court.  But on each occasion, the judiciary has ruled that black laws are in fact, in keeping with the provisions of the Indian constitution.  Recently, they even upheld the continued detention of TADA victims, even though TADA itself has since lapsed.  This is a matter of grave concern, because many consider the Indian constitution as the ultimate guardian of their rights.  But in actual fact, it fails to defend any right as inviolable, and subjects each one to "reasonable" limitations.  It is the constitution that establishes the primacy to the executive branch of government over all others, and which contains provisions that permit the legislation and exercise of black laws.

To date, the National Security Act (NSA), the Maintenance of Internal Security Act (MISA) and the Terrorist and Disruptive Activities (Prevention) Act (TADA) have all had to lapse because of the weight of popular opposition.  Of course, in each case, a variant of each one has since been brought back to life under one pretext or another.  According to published reports, the Home Ministry in Delhi is currently drafting a variant of TADA for consideration by parliament in its next session.

The opposition of the Indian people to state terrorism in general and to black laws in particular is deeply rooted.  For that matter, the ancient Indian legal codes themselves advised the praja to do away with a tyrant raja.  In modern times, this opposition has been manifest in the resounding electoral defeats that people have handed to state governments in West Bengal in 1977 or Punjab in 1997 - and even in the case of the central government itself after the Emergency in 1977.

In each of these cases, people had risen against Congress(I) governments for their use of state terrorism.  What is noteworthy now - and particularly in the period since TADA was promulgated, is that the advocacy or use of black laws is no longer identified with just the Congress (I), but by virtually all political parties in power.  Whether at the state-level or at the Centre under the United Front coalition, parties ranging from the Telugu Desam, DMK, Akali Dal, Asom Gana Parishad, BJP, Janata Dal, National Front (Kashmir), CPI, or CPI(M) have brought disrepute upon themselves because of their implicit support or use of black laws - even though most of these parties have themselves been victims of state terrorism at one time or another.

In the opinion of the AIPSG, it is urgent for people to demand that the Indian state withdraw the use of black laws from all parts of India, and reject any future attempt to enact such legislation.  People who participate in political opposition just cannot be dismissed as "law and order" problems and be dealt with through incarcerations and fake encounters.  All those being held in detention under the black laws must be immediately released and compensated.  This must be a demand of all the people of India, irrespective of their backgrounds, or where they live, for an attack on the rights of any part of the polity is an attack on the rights of all.  Black laws are a black mark on democracy, always and under all circumstances.
 
 

Association of Indian Progressive Study Groups (AIPSG)
Earl Hall, Columbia University, New York, NY 10027

Email:    ipsg-AT-maestro.com
Web:    www.columbia.edu/cu/ipsg
 
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