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Thursday, May 23, 2024

Is India living up to its claim of being the world’s greatest democracy?

"India claims to be the ‘world’s greatest democracy’. But, repressive Indian laws have disfigured the shiny face of democracy," writes author.

India has a slew of laws to persecute minorities. The police or armed forces can cordon and search any premises, and arrest any person without a warrant. For instance, the Armed Forces’ Special Powers Act grants the forces impunity. Courts are debarred from looking into their atrocities. Then there are the National Security Act, Public Safety Act, national Investigation Agency, besides Prevention of Terrorism Act,

Uttar Pradesh, ruled by a Hindu monk chief minister is in the forefront of states persecuting minorities. He has passed two additional laws.

India claims to be the ‘world’s greatest democracy’. But, repressive Indian laws have disfigured the shiny face of democracy.

Fundamental rights

The Hindu extremists spread rumors that thousands of Hindu women, mostly of low caste, are getting married to Muslim youth. The chief minister of Uttar Pradesh himself made controversial claims in various public meetings. At a public meeting in Jaunpur, he warned that those waging ‘love jihad’ should either mend their ways or be prepared for their final journey – “Ram naam satya hai ki yatra nikalne wali hai” (final Hindu funeral chant). He had earlier directed that cow offences should be registered under the National Security Act (treating a cow as a citizen).

The love Jihad has also special force usurps Constitution-of-India safeguards for fundamental rights (part 3, articles 13 – 35). The rights include ‘life and liberty of the person’ (article 21) and ‘freedom of expression’ (article 19). All other draconian laws like the POTA, AFSPA, also violates article 21, which provides that “no person shall be deprived of his life or personal liberty except according to procedure established, by law”.  For instance, the POTA allows legal presumption that if a person is found in unauthorized possession of arms in a “notified area,” he/she is automatically linked with terrorist activity. This along with other provisions undermines the basic right to be presumed innocent until proven guilty.

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Love Jihad: non-bailable offence

Love Jihad is an Islamophobic term that implies a Muslim marrying a Hindu female. The saffron state government has issued an ordinance to make interfaith marriages between Muslim males and Hindu females a non-bailable offence, punishable with 10-year imprisonment.

The Hindu monk chief minister is impervious to the investigation carried out by Special Investigation Team into the fourteen cases of interfaith marriages. The team reported that there was no element of coercion or deceit in any of the investigated cases.

The state government issued the ordinance notwithstanding. Two more BJP-ruled states of Haryana and Madhya Pradesh have announced to undertake legislation against ‘love jihad’.

At least five opposition-rule states have condemned the law as an encroachment on personal liberty.  A Maharashtra Congress minister, Aslam Shaikh pointed out that Indian Constitution allows a citizen to marry anyone and adopt any religion. There is already a law in existence against forced marriages.I

India has a slew of laws to persecute minorities. The police or armed forces can cordon and search any premises, and arrest any person without a warrant.

Another Rowlatt Act

Earlier the UP government had notified on Sep 15, a Special Security Force to search or arrest any person in any place without a warrant. The Congress termed the Special Security Force Act 2020 as Rowlatt Act (Anarchical and Revolutionary Crimes Act of 1919.

A controversial provision: Subsection (1) of Section 10 (‘Power to arrest without warrant’) of the UPSSF Act says: “Any member of the force may, without any order from a Magistrate and without a warrant, arrest any person, who voluntarily causes hurt…”, or a person against whom there is a “reasonable suspicion”, or any person, who attempts to “commit a cognizable offence”. The force will also have the right to remove trespassers on the premises under its protection.

No rules: However, the Act says that the manner in which the powers under this section would be exercised would be “governed by the rules prescribed in this behalf”. There are as yet no rules to limit misuse of the law.
Special-force law is draconian and against the Roma, Talmudical and Islamic law.

Roman Law: The sixth-century Digest of Justinian (22.3.2) provides, as a general rule of evidence: “Proof lies on him who asserts, not on him who denies”. That is Ei incumbit probatio qui dicit, non qui negat is there attributed to the second and third century jurist Paul. It was introduced in Roman criminal law by emperor Antoninus Pius.

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Talmudical law: According to Talmud, “every man is innocent until proven guilty. Hence, the infliction of unusual rigours on the accused must be delayed until his innocence has been successfully challenged. Thus, in the early stages of the trial, arguments in his defence are as elaborate as with any other man on trial. Only when his guilt has become apparent were the solicitous provisions that had been made to protect defendants waived”.

Islamic law: Similar to that of Roman law, Islamic law also holds the principle that the onus of proof is on the accuser or claimant based on a hadith documented by Imam Nawawi,  “Suspicion” is also highly condemned, this also from a hadith documented by Imam Nawawi as well as Imam Bukhari and Imam Muslim.

After the time of Muhammad, the fourth Caliph Ali ibn Abi Talib has also been cited to say, “Avert the prescribed punishment by rejecting doubtful evidence.”

India’s plethora of laws

In legal parlance, the law for special force is otiose (unnecessary). It appears to be malafide and aimed at Muslim persecution. That’s obvious from its definition of an ‘Installation’ that includes ‘statue’ and ‘monument’. Again, the law defines ‘Establishment’ as both public and private buildings. The law is too wide in scope to frisk away any person without a warrant.

India already has a plethora of laws to protect its sensitive installations like nuclear research centres, industrial undertakings, State Security Corporation,  “State and Central Government offices, employees of all such establishments, Public Sector Undertakings, vital installations, financial institutions, religious institutions, cultural institutions, medical Institutions or commercial establishment like malls, multiplexes, clubs and hotels etc.”

The UPSSF’s definition of ‘Installation’, by contrast, also includes ‘statue’ and ‘monument’. It defines ‘Establishment’ as both public and private buildings.

The infinite scope of the new law is meant to empower the force to persecute minorities with impunity.

India claims to be the ‘world’s greatest democracy’. But, repressive Indian laws have disfigured the shiny face of democracy. The cataclysmic impact of these laws is that they clothe police and security/armed forces with phenomenal powers without explicitly abrogating people’s fundamental rights under the Indian Constitution (a fundamental right cannot be usurped or altered).

Mr. Amjed Jaaved has been writing free-lance for over five decades. He has served federal and provincial governments of Pakistan for 39 years. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is author of eight e-books including The Myth of Accession. He knows many languages including French and Arabic. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.