Samra Hashim

Who can think of sending their daughter freely at night without any real fear? Who can think of exercise their ‘Freedom of Speech’ without any fear of being detained? Although we live in a democratic nation, who can think to go against the discretionary power of the bureaucrats? Who can?

On this 15^th day of August 2021, India celebrates its 74 years of Independence but we need to think and ask ourselves, are we really Independent? Are we really liberated? Even after a long struggle and a lot of bloodshed, we are still not free from the clutches of Caste and Religion, Poverty, Corruption, Illiteracy, Unemployment, Child Labour, and many more social evils.

The definition of ‘Independence’ differs from person to person, but the ‘Rule of Law’ is sacrosanct for both the People and the Government. India adopted a written Constitution and we the People elect our representatives, a representative by the people, for the people and of the people, to run this largest democracy and diversity. But the question which is to be considered is that, whether these elected representatives are effective with regard to their duties.

Before Independence, the colonial government deprived us of one thing the most; The Rights. A right defines the Independence of the people. Independence and Rights are complementary to each other, one cannot exist without another. Independence without rights is like a body without a soul and vice versa. Rights are something that cannot be enjoyed merely by providing for it in the Statutes, but along with rights, favorable situations should be made for the execution of the same. For instance, if I sell my car to you with a condition that you will not drive it on the road. Having a right over the car for you is useless and the same is the case with our rights.

For the smooth functioning of the democracy, India opted to have the federal government along with the Doctrine of Separation of Power. But the Legislature overrides among all. As established by the Constitution of India, Parliament is the Supreme Legislature of the nation which is empowered to transforms the will of the People into a Statute. Amid the Covid19 pandemic, 11 bills were passed. This is not the reason for the celebration, but a cause for concern for the Parliamentary Democracy as it depicts the brute majority of one party in both the houses and lack of discussion & debates in the Parliament. Thus, an analysis of how independent we are is the need of the day.

Citizenship Amendment Act, 2019

In Keshavananda Bharti v. State of Kerala[1], Secularism has consistently been declared to be a facet of the Constitution’s basic structure that Parliament cannot abrogate, even though its constitutional amendment powers.

Secularism means “Indifference to or exclusion and rejection of religious considerations.” The term also denotes that the State is neutral in respect of religion.  The Act gives accommodation based on religion. It ensures the non-Muslim residents who illegally migrated from Afghanistan, Pakistan, and Bangladesh will be able to apply for citizenship through registration and naturalization. Similarly placed Muslim residents will continue to be barred. A child born in India after 2003 to Hindu “illegal migrants” would qualify as a citizen by birth. If the child is born to even one Muslim “illegal migrant,” they would not.

In Joseph Shine v. Union of India[2], it was delivered that Intelligible differentia must have rational nexus with the object sought to be achieved. But, the differential treatment of Indian residents must meet the requirement of equality before the law and equal protection of laws under Article 14 of the Constitution of India irrespective of religion. Equal protection does not demand the exact treatment. But, it does demand that any differential treatment is reasonable and justified and the classification provided under the Act based on religion and country is not found based on intelligible differentia. Hence, the Act fails to comply with the Test of Equal Protection and Intelligible Differentia.

It is quite erogenous to observe that even after 74 years of India’s independence; its people are deprived of the exercise of their rights.

The Right to Information (Amendment) Act, 2019

The Right to Information Act, 2005 has ensured that the true essence of democracy prevails. It has empowered the people at the ground level. But, in 2019 an amendment to the act was proposed in form of the Right to Information (Amendment) Bill, 2019, which is believed to put trouble in the way of getting independence and fair information.

The bill seeks to amend sections 13&16 of the Act which gives enough power to the government to influence the Information Delivery Process using the Act. It empowers the central government to decide salary, tenure, and allowance of Chief Information Commissioner and Information Commissioners at the center and state level, thereby adversely affecting the Independence of the body.

Information can be regarded as one of the most important rights which can be given to the citizens of a free and independent nation. On one hand, we call ourselves liberated, but on the other, we are denied access to Information, like it used to happen before 1947. The legislature should always seek to empower people more than before, and it is obligatory in the Democratic setup to help every organization work independently.

The Jammu and Kashmir Reorganization Act, 2019

Alfred de Zayas said, “Self-determination is an expression of the individual and collective right to democracy”. The violation of the same via any statute made the supreme legislature accountable for the reparation.

 This Act bifurcated Jammu and Kashmir into two UTs, secretly and abruptly keeping the people in dark, even the Jammu and Kashmir Assembly. Before introducing the bill, the State was locked down. The people residing there had no idea what was happening. The ruling leaders of Jammu and Kashmir were detained. Internet services were cut down. The special status given to the State was revoked by scrapping Article, aimed to make a better State. But, at present, the situation of Kashmir is worst.

Illogical, Arbitrary, and Unreasonable Internet shutdown

In AnuradhaBhasin v. Union of India, the bench of N.V. Ramana, R. Subhash Reddy, and B.R. Gavai, J.J., declared that free speech and expression on the Internet is a Fundamental Right and constitutionally protected by Article 19. Following this Judgment, Advocate Hashmi filed a petition contending that “Right to access the Internet is a Fundamental Right under Right to Education and the Right to Privacy under Article 21 of the Constitution. Suspension and shutdown of the Internet services is an infringement of the freedom and rights guaranteed and safeguarded under Article 19 and 21[3]”.[4]

We are witnessing internet shut down throughout the nation and that too for a long period of time, on the ground that it may lead to rumors. But, because of the fear to meet an accident the parents can’t restrict the child from going to school. In short, it is illogical and unreasonable to allow the restrictions to override, what we call Rights.

The Unlawful Activities (Prevention) Amendment Act, 2019

Dr. B.R. Ambedkar has defined Article 21[5] as the ‘Heart and Soul’ of the Constitution. It guarantees the right to life and personal liberty and UAPA Act, 2019 is the first step towards the curtailment of the same.

The Unlawful Activities (Prevention) Amendment Act, 2019 amended certain points of the act. In UAPA, 1967 only organizations were brand as ‘Terror Organization’; but the recent amendment has empowered the investigation agencies to label any individual as ‘Terrorist’. It also gives immense powers to the Central Government Agencies and takes away the role of the State Government to a large extent as it expands the role of NIA officer. We can trace back in history that such law which empowers the government to brand any individual as ‘Terrorist’ has done much more bad than good. In the year 2002 Prevention of Terrorists Activities Act was introduced which was considered as a complete failure and out of 1031 people who were jailed only 13 were found guilty, which makes the conviction rate of such law very low, and at the same time destroys the lives of many innocent people.

Armed Forces Special Powers Act (AFSPA), 1958

“Power corrupts and absolute power corrupts absolutely”.

This law gives excessive power to the military, to control areas on the pretext of it being disturbed.

It was introduced in Kashmir in 1990. Since then, thousands of people were killed, thousands of custodial disappearance was reported, and extrajudicial killing was made. All these things crush innocent people in a real sense and give unreasonable powers to the army, making them fearless about laws. This kind of excessive power is a setback to “Rule of Law” and detrimental for the smooth democratic machinery of the country.

As per this law, members of armed forces cannot be tried in Civilian Courts, they have a special court. But despite thousands of death, extrajudicial killings, etc., the conviction rate is zero. There is also a disparity that is made by this law between common citizens and the armed force. In case of conviction, the law allows only the army to appeal in Civil Court while preventing the civilians. It is detrimental to the delivery of justice, by providing one party edge over the other.

If the statute allows ignoring the ‘Rule of Law’ in the country, that law is nothing but a threat to democracy. Independence in the real sense can only be ensured by eliminating such toxic laws. The statistics are proof that this law is nothing but an abuse of the rights of the people.

Sedition Law

M.K. Gandhi termed Sedition Law as, “The Prince among the Political Sections”.

Despite being the world’s largest Democracy and Secular Constitution, Sedition is the most heated topic in India which took the lives of many Indians. Since the passing of the CAA Act, 2019[6], the National Crime Records Bureau (NCRB), in December 2019, 194 Sedition Cases were recorded in India.  The Sedition Law 

Freedom of speech and expression is given under the Constitution as it is regarded as an essential ingredient of Independence to speak freely, to say right to what is right, and vice-versa is the spirit of democracy. Section 124A of the Country’s Penal Code, restricts people from speaking against the government, the purpose of this law is to prevent hatred towards the government, but it is widely misused to suppress people more than serving the purpose of the law. This law is in existence from the British era, to suppress any opposition against the colonial government, but this law is existent till date, it is widely argued that instead of punishing for criticizing the government, the criticism of the nation should be made illegal, but there is no such provision in the code.

Criticism of the government makes the democracy stronger, and due to the existence of this law, much constructive criticism is also shown as a threat, this adversely affects common citizens of the nation.

Conclusion

The real ‘Independence of the Nation’ which is being dreamt by our freedom fighters, is always accompanied by the responsibilities of the citizens. Until and unless we don’t understand our responsibility and get rid of these evils, we cannot call ourselves free. It is the legislation of the country which is responsible for maintaining the “Rule of Law”. To prevent such a situation of abuse of power, a mechanism of checks and balances is to be maintained at every level of governance.

[1]AIR 1973 SC 1469

[2]2019, 3 SCC 39

[3]Constitution of India, 1950.

[4]KrishnadasRajagopal, ‘Arbitrary Internet shutdowns violate fundamental rights, says plea in SC’, New Delhi, The Hindu, 2020, https://www.google.com/amp/s/www.thehindu.com/news/national/arbitrary-internet-shutdowns-violate-fundamental-rights-says-plea-in-sc/article30588825.ece/amp/, (accessed on: 14^th August, 2020).

[5]Ibid.

[6]Citizenship Amendment Act, 2019.

• Auther is a Law student at the Aligarh Muslim University. She was an acting secretary of the Law Society in the University.