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The distinctive features of the revised Karnataka Control of Organised Crime Act, like of many of the special security laws being passed in India, are directly lifted from one of the most odious laws of British India, the Rowlatt Act, says Arvind Narrain
The chief minister of Karnataka, in his Independence Day address, noted that, “a revised Karnataka Control Of Organised Crime Act (KCOCA) would come into force soon to tackle Naxalites, terrorists and anti-social elements”. The statement did not raise any eyebrows or cause any consternation. This is because few are aware of some of the distinctive features of KCOCA and how these features are directly lifted from one of the most odious laws of British India, the Rowlatt Act. In 1919, Gandhi launched the civil disobedience movement against the Rowlatt Act. 1n 2008, 61 years after Independence, an elected government of the people in free India decides to introduce the same repressive features as law. The irony could not be more telling. I would like to outline some key features of KCOCA, trace its history and finally examine the remarkable haste with which extraordinary laws are being enacted and enforced across the Indian republic. What are special laws? Special laws create new offences like committing ‘organised crime’, committing a ‘terrorist act’ or being a member of an ‘unlawful organisation’. They also do away with the procedural safeguards which exist under ordinary criminal law as embodied in the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act. Examples of special laws abound in post-colonial India -- MISA (Maintenance of Internal Security Act), AFSPA (Armed Forces Special Powers Act), MCOCA (Maharashtra Control of Organised Crime Act), KCOCA (Karnataka Control of Organised Crime Act), CSSA (Chhattisgarh Special Security Act). Since what is contemporary for us today is KCOCA, particularly after the chief minister’s statement on Independence Day, we will first look at some features of KCOCA and their implications for democratic practice. 1. | Confessions to a police officer are not permissible as evidence under Section 25 of the Evidence Act, but become admissible under Section 19 of KCOCA. This is a key procedural safeguard against institutionalising torture which has been wilfully dropped under KCOCA. A key technique for building evidence under a lot of special laws is the role of so-called ‘voluntary’ confessions. A recent example is the arrest of SIMI members. One of the key pieces of evidence marshalled against SIMI members is the confession. In the words of Tehelka reporter, Ajit Sahi: “That the confessions by the SIMI accused are fabricated is evident from the fact that, in several cases, the police claim that numerous accused are struck by remorse all at the same time and confess to their crimes on the same day, and, most surprising, in near identical words. To be sure, the minute the accused are brought before a magistrate, they deny having made confessions or say that the police tortured them to sign on the dotted line.” The history of the confession statement as a tool used by the State to build up false claims against those it wishes to persecute is too well known to bear further repetition. | 2. | Limiting police power is a central feature of a legal regime which is in consonance with democracy. The conventional understanding within the criminal code is that the time when the police are entitled to custody of the accused has to be limited. KCOCA liberally increases the time limits for police custody, under Section 167 of the CrPC. After production before a magistrate within 24 hours, instead of a 15-day detention, KCOCA authorises detention for 30 days. The chargesheet, which is to be completed within 60 days for some offences, is increased to 90 days and where it is to be filed within 90 days the time is increased to 180 days. The increase in the duration of time that the accused will spend in police custody will only facilitate the perpetration of police torture. | 3. | Limitations on the granting of bail are once again a significant feature of special laws. Special laws often make the granting of bail difficult, if not impossible. For example, KCOCA does away with the application of anticipatory bail for anyone accused of an offence under the Act. Further, it statutorily increases the bar for the granting of bail. Under Section 2 (4), it says that apart from reasons under the existing law, the person accused under this Act cannot be released on bail unless: • | The public prosecutor has been given an opportunity to oppose the application. | • | When the public prosecutor opposes the bail application, the court is satisfied that there are reasonable grounds for believing that the person is not guilty of the offence and not likely to commit any offence whilst on bail. | • | Not to be granted bail, if he is out on bail in an offence under this Act or any other Act. |
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The premise of this provision is that the person is not to be released unless the court is convinced that he/she has not committed the offence. The only way the court can come to the conclusion that the person has not committed the offence is on conclusion of the trial. In effect, this provision ensures that bail will never be granted to any accused during pendency of the trial. Professor Balagopal, in his analysis of TADA (Terrorist And Disruptive Activities Prevention Act) makes the point that the bail provisions of TADA are designed to function not only as a punitive law but as a preventive detention law. The bail provisions of TADA go to the heart of its oppressive character. It is important to note that the number of people who languish in prisons because of denial of bail is central to understanding the law as a disguised preventive detention statute. Convictions under special laws like TADA and POTA are finally very minuscule compared to the tens of thousands who have been picked up, detained for years, and, if lucky and the case is concluded, inevitably released. Since KCOCA’s bail provisions mirror TADA in character and intent there is a strong basis for apprehending a similar story of preventive detention of thousands under KCOCA. 4. | There is a wider ambit of people who come within the purview of criminal law under special laws such as KCOCA. This is done by redefining the word abetment to include, for example: • | “Communication or association with any person with the knowledge or having reason to believe that such person is engaged in assisting in any manner an organised crime syndicate.” | • | Passing on or publication of, without any lawful authority, any information likely to assist an organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from an organised crime syndicate. |
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The inclusion of “communication with any person having knowledge of that person assisting any crime syndicate” criminalises ordinary human interactions. Thus friends, lovers, wives, children, relatives and others who have any sort of human interaction with those who are deemed to be part of an organised crime syndicate come within the criminalising ambit of KCOCA. The best example from the past is the case of Mohammed Hanif who was arrested under the Terrorism Act, in Australia. The charge in legalese was of “recklessly providing assistance to a terrorist organisation”. In simple English it meant that Hanif gave a SIM card to Sabeel before his departure from the UK. What Hanif did was what most Indians would do: give his cousin his SIM card to save money. This became the basis of his arrest and his “guilt by association”. 5. | Redefining organised crime. This is the most direct example of how politics comes to be treated as a crime in this country. Organised crime means “any continuing unlawful activity by an individual… by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic advantage or promoting insurgency”. The twist in the tale is the last phrase --promoting insurgency -- and how it gets linked to organised crime. As K G Kannabiran presciently notes: “Politics is treated as a crime. The subversion of law begins with the reduction of politics to a crime. After such subversion, the law becomes a pretext for violence.” | 6. | Use of special courts. Bypassing the ordinary judicial structure, those committing offences under this Act are to be tried by special courts. The judge is to be appointed by the state government with the concurrence of the chief justice. This casts a shadow on the independence of the judiciary when it comes to offences under this Act by giving the executive unwarranted power in the selection of the trial court bench. This has very serious consequences in the long run. | 7 | Use of presumptions. Under Section 23 of the Act, if unlawful arms or other material including documents or papers are recovered from the possession of the accused and there is reason to believe that such unlawful arms and other material including documents or papers were used in the commission of such offences then it is presumed that an offence has been committed, unless the contrary is proved. Based on the arrests of SIMI activists, once again the key recovery is videos, CDs, pamphlets, etc. Some of these depict the 9/11 bombings, the Gujarat riots and other issues of free speech. The moment these documents get read into the chain of being used to commit offences, the presumption of guilt is raised. This once again has serious implications for ensuring a fair trial. | 8. | Use of a competent authority to authorise interception of wire, electronic or oral communication. Clearly, illegal practices like wire-tapping become legal under this statute with powers to oversee this process of wire-tapping entrusted to an executive authority. The executive authority will be an officer in the home department not below the rank of secretary of state. Clearly, this is part of the process of what has been called the “executivisation of law and the tribunalisation of justice”. Once again, the implications are serious with illegal acts becoming legal and the power of overseeing these actions vested in the executive. |
The crux of how these special laws operate is that they, in effect, set out two regimes. One regime is for the ‘ordinary’ criminal and the other is for those whose criminality the Indian State views with such antipathy that it sets up an entirely different legal regime with a minimum of fair trial guarantees. In effect, what India does by setting up the regime of special laws is to state that Indian democracy falters at the doorstep of those who are different. As Balagopal puts it: “Democracy in the best sense has always meant justice for the dissident, the abnormal, the peripheral, notwithstanding that their proclivities may be held morally unjustifiable and politically unsupportable by the mainstream, or even a majority of the periphery too.” By these standards, Indian democracy would be found wanting. The historical origins of special laws The question that comes to mind is where does this departure from the ordinary come from? What are the histories underlying the constant enactment of more and more security legislation by the State? The answer lies in colonial administration. Ujwal Kumar Singh explains that, responding to criticism that these laws (preventive detention) were “arbitrary in nature,” “odious” and “un-British,” the Home Member noted: “our system can never see these laws: we shall never see them in England. But England is a settled civilised country. These laws are applicable in India and the colonies where a handful of white people have to maintain themselves against lawless, sometimes violent, people.” Of course, Indians did not take kindly to these extraordinary laws, as seen in the launch of the non-cooperation movement by Mahatma Gandhi against the passing into law of the Rowlatt Bills. One of the forefathers of legislation such as the Chhattisgarh Special Security Act and KCOCA was the Rowlatt Act. The preamble to the Rowlatt Bills read, “whereas it is expedient to make provision that the ordinary criminal law should be supplemented and emergency powers should be exercisable by the government for the purpose of dealing with anarchical and revolutionary movement”. To do so, the Rowlatt Bills authorise a large-scale departure from the criminal law including special courts, preventive detention, diluting rules of evidence, confessions to police officers, etc. Gandhi, in a fact-finding report, presciently noted the logic behind these laws. “And when it is remembered that the Act has been passed not in order that a single suspected person may occasionally be placed under confinement, but that it is intentionally designed to affect large bodies of people at a time of anxiety and excitement, it is not difficult to picture to oneself a reign, not of law and order but of organised terror and disorder, or martial law without the name.” “When the Rowlatt Bills were published, I felt that they were so restrictive of human liberty that they must be resisted to the utmost. I observed too, that the opposition to them was universal among Indians. I submit that no State, however despotic, has the right to enact laws which are repugnant to the whole body of the people, much less a government guided by constitutional usage and precedent, such as the Indian government.” The agitation was so successful that though the law was enacted nobody was ever prosecuted under the statute. So if repressive laws are the very chains that bonded India and if they were responsible for so much disaffection against the British in India, what happened post-Independence? The context of post-Independence is best illustrated by the story of the veteran communist leader A K Gopalan. Kannabiran describes how, when Nehru made his historic tryst-with-destiny speech, the Madras government had released all its prisoners except A K Gopalan. “He was in solitary confinement. He celebrated India’s independence within the jail premises. Joined by some of his fellow prisoners, he walked the length of the jail carrying the national flag. Hoisting it on the roof of the third block he addressed those gathered there for four or five minutes. For his performance, he was produced before the ADM Calicut on charges of sedition for stirring up the people against His Majesty the Emperor. Like Gandhi and Tilak he too made a statement before the court, but in independent India. He said: ‘I am proud that I am being tried for creating enmity against the legally constituted Emperor of British India. All freedom lovers in this country and the leaders of the freedom movement from its birth like Nehru, Gandhi and such leaders, have tried to create enmity against the emperor’s government… Most of my colleagues who committed the same crime along with me have become ministers and governors. There is some incongruity in bringing me to trial at this time when, on the face of it, we have just achieved freedom. I am sorry that things should have come to such a pass.” Kannabiran adds: “For the magistrate and the public prosecutor, nothing appeared incongruous. They were not able to see any break. Governance for them was a continuous process and the principles of governance set up by the British in India were seen as appropriate and relevant for free India. The advent of independence was just an event which did not disturb continuity; it did not announce a change in the existing social order.” As George Orwell put it appositely at the end of Animal Farm: “The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” Reclaiming the meaning of independence: The struggle against special laws I think it is important to bring up the point about continuity between colonial and post-colonial times so that we can begin to reclaim the meaning of independence which has been confiscated by the nation-state. Surely independence should mean more than the military might of India which we paraded again this 15th of August 2008. If we can connect to the agitation against the Rowlatt Act, it would bring meaning back to the notion of Independence Day. Independence Day should be a day when we remember and memorialise courageous activists like Binayak Sen and T G Ajay and thousands of others who for the courage of their convictions are still in jails around the country. Among the numerous activists who have opposed special laws of iconic significance is Irom Sharmila who is on a seven-year fast against AFSPA (which gives an NCO the power to shoot to kill and is, in effect, the Constitution of the northeast of India). Deeply disturbed by the number of people who have been repeatedly killed by the army, Irom Sharmila embarked on an epic fast. For eight years she has been kept a prisoner and force-fed through a tube. When asked if it was difficult, as she had not seen her mother for the past five years, she replied: “Not very hard… (pauses). Because, how shall I explain it, we all come here with a task to do. And we come here alone.”12 This Gandhian strategy takes the Gandhian fast to a limit that the father of the nation might never have envisaged (Gandhi’s longest fast was 21 days against a colonial ruler). The independent Indian State refuses to be moved by an eight-year-long fast. As we commemorate Independence Day it is important to remember that the true meaning of independence lies in the stories of Irom Sharmila and A T Babu, Lalit Mehta and Binayak Sen, activists of Kalinganagar who are still in jail and thousands of others who continue to keep alive the spirit which animated the independence movement. (Arvind Narrain is a human rights activist and lawyer with the Alternative Law Forum [ALF], Bangalore. This article is based on his presentation at a discussion following the screening of films by Ajay T G, in Bangalore, on August 11, 2008, organised by Pedestrian Pictures, Vikalp Bengaluru and Alternative Law Forum) Endnotes 1 The Hindu, August 16, 2008
2 SIMI Fictions, Tehelka, August 16, 2008
3 K Balagopal, ‘In defence of India’, Economic and Political Weekly, August 6, 1994
4 K G Kannabiran, The wages of impunity, Orient Longman, New Delhi, p 10
5 Ujwal Kumar Singh, The state, democracy and anti-terror laws in India, Sage, New Delhi, 2007, p 56
6 Report of the Commissioners appointed by the Sub-Committee of the Indian National Congress, Collected Works of Mahatma Gandhi, Vol 20
7 p 42
8 Ibid. 30
9 Ibid. 31
10 Ibid. 31
11 George Orwell, Animal Farm
12 http://www.tehelka.com/story_main17.asp?filename=Cr032506_Iroms_iron.asp Also read: http://infochangeindia.org/200808187283/Film-Forum/Documentary/Anjam.html InfoChange News & Features, August 2008
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