legal immorality in indian laws.

Circa early 2000 BCE, the Mesopotamian civilization. After approximately a thousand years of successful civilized life, the Code of Ur-Nammu was written, under the dynasty of King Ur. This code, prescribed on tablets, is to us the oldest known written law of any civilisation. From then on, it became a norm to list out the rules of your social contract. In our dear subcontinent, evidence of legality affecting society can be found in the Mature Indus civilization. By then, it had become the norm to judge people on the metric of how well they abide by the law. It was fair too, after all, the people facilitated the social contract, and its binding terms, so why not?

Somewhere down the line, it would seem that humanity stopped viewing laws as agreed rules of functionality, and more from the metric of how well justice is enacted (I blame the Greek). Righteous as the development was, the interplays and effects of authority on systems of justice were lost to us momentarily. The nature of laws, which was to regulatory authority and commoners, soon saw a paradigm shift towards becoming a means of regulating behaviour. The overarching concept of moral and ethical conduct was lost in translation and slyly replaced by the freedom of perspective. This has enabled the existence of a backdoor, an exploitable loophole in the system for the ruling class.

Ever since laws and legalities have been often used as tools of oppression, subjugation, and marginalisation through aiming to benefit selective sects. Tyrannical and exploitative ruling bodies have time and again used laws to create imbalances in social as well as materialistic capital. Identities are stolen, histories are erased, communities are labelled invalid under the pretext of “abiding by the law”. Though from the Bronze age, several religious and political bodies of power have been at fault of this, the past half-millennium has seen the ledgers of the colonizers gushing red. The American continents, Australia, the Caribbean, the Indian Subcontinent, and eventually sections of Eastern Asia, have all suffered from the ‘abusive policy’ politics of the colonizing nations.

Post-colonial India has surely taken a few pages out of our oppressor’s book, fostering certain unlawful pieces of legislature. In light of our current two-term running government creating policies that seem to absolutely coincidentally hound disadvantaged communities, let us visit some of the rather unjust justice norms of India, some of which have served as rather unpleasant parting gifts from our colonising cousins.

I.) The Anarchical and Revolutionary Crimes Act (Rowlatt).

The archaic colonial law gave the government permission to preventively detain individuals for up to two years, based solely on suspicion. Furthermore, it did not define what constitutes “anarchical and revolutionary crimes”, and was predominantly implemented in certain areas deemed “affected” by the government. The act did not allow for the right to appeal or even the right to representation by counsel. It was the protest of this very act that led to the imposition of the Martial Law in Amritsar on April 13th, 1919.

While the law was repealed in 1922 by British authority, its inequitable remnants could be found in the Terrorist and Disruptive Activities (Prevention) Act (1985-1995) and Prevention of Terrorism Act (2001-2004), both of which were repealed. The Unlawful Activities Prevention Act (UAPA) is precariously similar to the Rowlatt act in terms of ambiguity, and the Armed Forces Special Powers Act (AFSPA) reflects a facet of being especially implemented in exclusive areas.

II.) Sedition Law.

Another colonial-era relic that is still used to apprehend folks who offend the ruling government, Section 124A of the Indian Penal Code, 1860 defines the offence of “sedition”. It was originally enacted by the British to repress India’s independence struggle. This law prohibits any signs, visible representations, or words, spoken or written, that can cause “hatred or contempt, or excite or attempt to excite disaffection” towards the government. The Indian Judiciary does indeed specify that for an action to be deemed “seditious”, it must have incitation of imminent violence.

Source: https://bit.ly/2NMfzv9

III.) Jammu and Kashmir Public Safety Act (PSA)

Established in 1978, the PSA is a gratuitous piece of legislation that has successfully outmanoeuvred the criminal justice system. It permits administrative detention of any individual in Jammu & Kashmir for up to two years “in the case of persons acting in any manner prejudicial to the security of the State,” or for up to one year where “any person is acting in any manner prejudicial to the maintenance of public order”. Authorities have time and again used the law to detain individuals biasedly, in order to prevent them from attaining a fair trial. Detentions are conducted without specification of clear grounds for arrest and ignoring the safeguards of the act.

Source: Danish Ismail/Reuters

IV.) National Security Act (NSA)

The NSA also has its roots in colonial preventive detention acts. Its first post-colonial reiteration was the Preventive Detention Act of 1950. This was replaced by the Maintenance of Internal Security Act of 1971 and finally the National Security Act of 1980. The act empowers the Centre or a State government to detain a person so that he does not act in any manner prejudicial to national security. The person need not be charged during the period of detention. An individual can be detained without a charge for up to 12 months, and the detained person can be held for 10 days without being told the charges against them.

Almost all of the afore-mentioned laws permit the detention of individuals on unfair grounds, be it preventive or punitive. The pattern of precautionary incarceration we’re seeing here is also fostered by our constitution. Article 22(3) says that the rights available to an arrested person will not be applicable under cases of preventive detention. Several of our detention laws are no longer required if only the constitution could also specify grounds for detention.

Thus, we stand to question the very virtue of our own legal elements. When our legality is immoral and selective immorality is legal, we must stop and ponder upon the kind of social contract we are in.