review this article and highlight the main points . India’s Democracy at 70 The Troublesome Security State Beyond the Colonial Legacy

review this article and highlight the main points .

India’s Democracy at 70

The Troublesome Security State

Beyond the Colonial Legacy

The most egregious abrogation of civil liberties in post independence India came on 25 June 1975, when Prime Minister Indira Gandhi of the Indian National Congress (INC) advised President Fakhruddin Ali Ahmed to declare a nationwide state of emergency. Unlike 1962 or 1971, the year 1975 was not a time of war with a foreign power. Instead, Indira Gandhi’s resort to the measure (the presidential declaration was essentially a formality) was for domestic reasons. The immediate occasion was a lower-court judgement that had convicted her of minor election-law violations. Even as she sought to stay the ruling pending an appeal, she had her majority in Parliament retroactively repeal the [End Page 119] laws under which she had been charged. This extraordinary maneuver infuriated enough of the opposition to trigger a parliamentary impasse as public protests and calls for her resignation mounted.

As discontent reached a boil, Gandhi declared that “internal disturbances” had put national security at risk. With that stroke, whole batteries of constitutional rights were abridged. Thousands of opposition politicians found themselves in preventive detention, the normally feisty press felt the censor’s hard hand close over its mouth, and judicial independence came under threat. “The Emergency” lasted until 21 March 1977. In January of that year, Gandhi had followed the advice of her closest confidants and announced that there would be a fresh general election in March. She and her INC colleagues were surprised when the voters, who had gone to the polls from March 16 to 20, tossed her government from office.

The 1970s and 1980s were difficult years in India owing not only to public controversies, but also to large, deadly riots and a number of armed insurgencies. The violence around one such insurgency—a campaign by some Sikhs to create a separate homeland called “Khalistan” in and around the northwestern state of Punjab—claimed the life of Indira Gandhi herself. In October 1984, two of her Sikh bodyguards shot her to death in retaliation for a military raid she had ordered earlier that year against armed Sikh secessionists on the grounds of the Golden Temple (the holiest Sikh shrine) in the Punjabi city of Amritsar. The raid had cost hundreds of lives; the anti-Sikh riots that followed Gandhi’s assassination cost thousands.

The State Reacts

Faced with events such as these, the Indian state sought to cope by means of laws limiting civil and political rights. In considerable part, this approach was a comment on the shortcomings of India’s police agencies and the drawbacks of the Indian judicial system. The police too often failed to find and stop those who were perpetrating violence and disorder, and even when they were found and arrested, the courts too often failed to mete out swift and severe justice to them. Confronted with these two critical shortfalls, governments of various ideological hues fashioned legislation that increasingly constrained civil rights and personal liberties.

A case in point was the Maintenance of Internal Security Act (MISA) of 1971. Originally passed to deal with the Naxalite rebellion, an urban insurgency that emerged in the state of West Bengal in the late 1960s, MISA provided for indefinite detention without trial, warrantless searches and arrests, and widespread wiretapping.9 This law was widely used to suppress the insurgency, and was subsequently amended and applied during the 1975-77 Emergency. The coalition government, led by [End Page 120] the Janata Party, that came to power in March 1977 repealed MISA. Yet when Indira Gandhi returned to office three years later, she reinstated most of the law’s key provisions in the National Security Act (NSA) of 1980, which remains in force.

The months following Indira Gandhi’s assassination saw the passage of the Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1985. The law was a testament to the sense of alarm that gripped the central government as it struggled to deal with the situation in Punjab and its associated cycle of bloodletting. The army’s ill-fated, sanguinary move on the Golden Temple had fueled rage among Sikhs at what they deemed a violent desecration of their leading holy place. Prime Minister Gandhi’s murder, born of this rage, together with many lethal revenge attacks against innocent Sikhs (especially in New Delhi) that came in reaction to the crime, had driven matters to a new pitch of horror and despair.

This was the climate in which the INC government of the new prime minister, Indira Gandhi’s son Rajiv, passed TADA in 1985. Although aimed mainly at quelling the Punjab insurgency, the law was nationwide in scope. It criminalized not only acts but any speech that supported secession or otherwise challenged the sovereignty and territorial integrity of India. The routine rules of evidence and criminal procedure were amended. For instance, in India, confessions made to the police are normally not admissible in court. Yet they became so under TADA as long as certain procedures were observed.10 Anyone suspected of certain crimes, moreover, could be detained for up to a year without charge, and trials could be held in camera.

As critics had predicted, widespread abuses took place under this law. Many individuals were detained without substantive cause, while only a few were ever convicted. In 1994, the Minister of State for Home Affairs reported that since TADA’s adoption, 67,059 people had been TADA detainees. Of these, exactly 8,000 had been tried, and a mere 725 found guilty of any offense.11 In 1995, Parliament allowed TADA to lapse, although a host of cases that had been launched under it remained an active danger to the civil rights of numerous Indians.12 The most widely known TADA case resulting in a conviction long after the law’s lapse was that of a Mumbai-based Muslim accountant, Yakub Memon. He was the brother of an accused (and still at large) terrorist named Tiger Memon. Yakub Memon’s conviction for involvement in a terrorist conspiracy was appealed all the way to the Supreme Court, but the appeal failed and he was hanged in July 2015.13 Although precise numbers are unavailable, some TADA cases continue to linger, leaving those charged in legal limbo.14

Sikh secessionism has receded since the mid-1980s, but this has not meant an India free from terror attacks—or from draconian laws passed in their aftermath. Following the car-borne 13 December 2001 assault [End Page 121] on New Delhi’s Parliament House—costing fourteen lives all told—that was attributed to the Pakistan-based Islamist group Jaish-e-Mohammed, the coalition government led by the Bharatiya Janata Party (BJP) passed the Prevention of Terrorism Act (POTA). This legislation gave the federal authorities power to detain suspects without formal charges for up to 180 days, to withhold the identity of witnesses, and to treat confessions made to the police as admissible in court. Pressures from the opposition, however, led to some easing of the law’s more draconian provisions before its passage. The POTA, for instance, did not include a TADA-style preventive-detention clause.15 Moreover, there were some new (albeit limited) safeguards, such as provisions for appealing bail rulings and verdicts.

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