Skip to main content

Article 21 'overturned' by new criminal laws: Lawyers, activists remember Stan Swamy

By Gova Rathod* 

The People’s Union for Civil Liberties (PUCL), Gujarat, organised an event in Ahmedabad entitled “Remembering Fr. Stan Swamy in Today’s Challenging Reality” in the memory of Fr. Stan Swamy on his third death anniversary.  The event included a discussion of the new criminal laws enforced since July 1, 2024.
At the start of the event Fr. Cedric Prakash spoke about Fr. Stan Swamy, a fearless defender of tribal rights in Jharkhand, who was arrested by the NIA in 2018 in the context of the Bhima Koregaon case.  
Human rights defenders and members of political parties across the nation had protested the arrest of the then 81-year-old activist who had worked tirelessly with Adivasis to defend their rights.  He passed away on July 5, 2021 at the Holy Family Hospital, Mumbai, due to complications related to Covid while still under arrest, said Prakash.
Advocate Lara Jesani of the Bombay High Court delivered the keynote address and discussed the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) which have replaced the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act, respectively and their implications for citizens’ rights. 
She expressed serious concern regarding the manner in which the Law Commission was bypassed, views of public and experts not considered in the process of overhauling the criminal jurisprudence of the country, by just entrusting the task to a five member committee.  
It was strange that when 80-85% of the BNS, BNSS and BSA was taken verbatim from the erstwhile CRPC, IPC and the Indian Evidence Act and just reorganised, rather than “decolonised” as claimed, that the laws were replaced when the limited changes could have been brought through amendments as was being done from time to time, she added.
While examining the new criminal laws, Jesani expounded on the issues they throw up, some key ones being: 
(i) the discretion given to the police to conduct a preliminary investigation before deciding whether an FIR should be filed, 
(ii) the vagueness in the number of days of police custody that could be granted which could result in a situation where the earlier provision limiting to the first 15 days could be now extended to 60 or 90 days, and thereby almost pre-closing the  possibility of bail during this entire period 
(iii) the introduction of provisions from anti-terror law UAPA into the BNS, the introduction of the controversial sedition-like law in a graver and more dangerous form, 
(iv) criminalisation of hunger strike by protestors, and 
(v) the admissibility of electronic evidence without any safeguards for privacy and data protection or procedures for seizure of devices and integrity of device and data, and other provisions which give arbitrary and sweeping powers to the police. 
The way Stan Swamy was incarcerated  shows, new criminal laws could be used to snatch away civil liberties and fundamental freedoms of citizens
Jesani said that not only would these ill-conceived changes brought about through the new criminal laws lead to chaos in court and increased litigations in an already stressed legal system, but they are regressive and contradict the law laid down in several landmark Supreme Court judgements like in the case of DK Basu, Joseph Shine and Lalita Kumari, and are violative of fundamental rights enshrined in the Indian Constitution.
Activist Nirjhari Sinha spoke on how these laws could be used to curtail the freedom of speech, especially of independent media and fact-checkers. The window of 15 days given to the police to investigate and ascertain prima facie the commission of an offence would have far-reaching implications on ensuring justice in cases of sexual violence. 
Advocate Amrish Patel emphasized how the procedural law in the earlier criminal jurisprudence flowed from Article 21, which has been overturned by the new laws.  
Advocate Shamsad Pathan said that the struggle of the minorities to make their voices heard in the context of the spread of hate speech and targeted violence would be seriously affected as a result of the sweeping powers given to the police in the new criminal laws. 
Activist Kishor Chaudhury said that the impact of the new laws was already being felt in the Adivasi community. The police already cited the new laws when the Adivasi organizations informed them about the Indigenous Day celebrations on 9th August; and that Adivasis should limit to their ‘cultural programmes’ on this day and not any political demonstrations.
Trade union leader Ashim Roy was positive that the various stakeholders, especially the legal fraternity and civil society activists, would stand up against the new criminal laws and spearhead a collective, democratic and transparent process that would compel the government to withdraw the new criminal laws.
I told the meet that the manner in which Fr. Stan Swamy was incarcerated under draconian laws were an indication of how the new criminal laws could be used to snatch away civil liberties and fundamental freedoms of citizens. 
I expressed my apprehension that the changes in procedural law as envisaged in the new criminal laws could have serious implications on laws like the SC&ST (Prevention of Atrocities) Act. The new laws would be instrumental in suppressing the on-going struggles of the Dalit and Adivasi communities for justice. 
---
*PUCL Gujarat, General Secretary

Comments

TRENDING

Loktantra Bachao Abhiyan raises concerns over Jharkhand Adivasis' plight in Assam, BJP policies

By Our Representative  The Loktantra Bachao Abhiyan (Save Democracy Campaign) has issued a pressing call to protect Adivasi rights in Jharkhand, highlighting serious concerns over the treatment of Jharkhandi Adivasis in Assam. During a press conference in Ranchi on November 9, representatives from Assam, Chhattisgarh, and Madhya Pradesh criticized the current approach of BJP-led governments in these states, arguing it has exacerbated Adivasi struggles for rights, land, and cultural preservation.

Promoting love or instilling hate and fear: Why is RSS seeking a meeting with Rahul Gandhi?

By Ram Puniyani*  India's anti-colonial struggle was marked by a diverse range of social movements, one of the most significant being Hindu-Muslim unity and the emergence of a unified Indian identity among people of all religions. The nationalist, anti-colonial movement championed this unity, best embodied by Mahatma Gandhi, who ultimately gave his life for this cause. Gandhi once wrote, “The union that we want is not a patched-up thing but a union of hearts... Swaraj (self-rule) for India must be an impossible dream without an indissoluble union between the Hindus and Muslims of India. It must not be a mere truce... It must be a partnership between equals, each respecting the religion of the other.”

Right-arm fast bowler who helped West Indies shape arguably greatest Test team in cricket history

By Harsh Thakor*  Malcolm Marshall redefined what it meant to be a right-arm fast bowler, challenging the traditional laws of biomechanics with his unique skill. As we remember his 25th death anniversary on November 4th, we reflect on the legacy he left behind after his untimely death from colon cancer. For a significant part of his career, Marshall was considered one of the fastest and most formidable bowlers in the world, helping to shape the West Indies into arguably the greatest Test team in cricket history.

Andhra team joins Gandhians to protest against 'bulldozer action' in Varanasi

By Rosamma Thomas*  November 1 marked the 52nd day of the 100-day relay fast at the satyagraha site of Rajghat in Varanasi, seeking the restoration of the 12 acres of land to the Sarva Seva Sangh, the Gandhian organization that was evicted from the banks of the river. Twelve buildings were demolished as the site was abruptly taken over by the government after “bulldozer” action in August 2023, even as the matter was pending in court.  

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah  The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

Will Left victory in Sri Lanka deliver economic sovereignty plan, go beyond 'tired' IMF agenda?

By Atul Chandra, Vijay Prashad*  On September 22, 2024, the Sri Lankan election authority announced that Anura Kumara Dissanayake of the Janatha Vimukthi Peramuna (JVP)-led National People’s Power (NPP) alliance won the presidential election. Dissanayake, who has been the leader of the left-wing JVP since 2014, defeated 37 other candidates, including the incumbent president Ranil Wickremesinghe of the United National Party (UNP) and his closest challenger Sajith Premadasa of the Samagi Jana Balawegaya. 

Will Bangladesh go Egypt way, where military ruler is in power for a decade?

By Vijay Prashad*  The day after former Bangladeshi Prime Minister Sheikh Hasina left Dhaka, I was on the phone with a friend who had spent some time on the streets that day. He told me about the atmosphere in Dhaka, how people with little previous political experience had joined in the large protests alongside the students—who seemed to be leading the agitation. I asked him about the political infrastructure of the students and about their political orientation. He said that the protests seemed well-organized and that the students had escalated their demands from an end to certain quotas for government jobs to an end to the government of Sheikh Hasina. Even hours before she left the country, it did not seem that this would be the outcome.

A Marxist intellectual who dwelt into complex areas of the Indian socio-political landscape

By Harsh Thakor*  Professor Manoranjan Mohanty has been a dedicated advocate for human rights over five decades. His work as a scholar and activist has supported revolutionary democratic movements, navigating complex areas of the Indian socio-political landscape. His balanced, non-partisan approach to human rights and social justice has made his books essential resources for advocates of democracy.

Tributes paid to pioneer of Naxalism in Punjab, who 'dodged' police for 60 yrs

By Harsh Thakor*  Jagjit Singh Sohal, known as Comrade Sharma, a pioneer of Naxalism in Punjab, passed away on October 20 at the age of 96. Committed to the Naxalite cause and a prominent Maoist leader, Sohal, who succeeded Charu Majumdar, played hide and seek with the police for almost six decades. He was cremated in Patiala.