The Association of Indian Progressive Study Groups (AIPSG) is deeply concerned about the trend among the authorities in India to add more black laws to the arsenal of existing anti-democratic laws, and calls upon everyone to oppose their use in any form.

In the last month the Jammu & Kashmir government ratified the Disturbed Areas Act, originally promulgated under decree during President's Rule, that gives the security forces full powers of shoot-to-kill as well as search and seizure without fear of prosecution or accountability. Meanwhile, the Andhra Pradesh government is reportedly drafting new legislation that would reinstate the provisions of the now-expired TADA law that allowed detention without charge, secret trials, denial of bail, and reversing the burden of proof to the accused.

This comes in addition to at least eight similar "black laws" in operation in different parts of India, the most notorious of which is the Armed Forces (Special Powers) Act, legislated in 1957 for use in Nagaland. Not only is the AF(SP)A still in effect there, 40 years later, but it has since been extended throughout the north-east to include Assam, Mizoram, Tripura and Arunachal Pradesh, and has periodically been used elsewhere, including Kashmir.

While these different "black laws" have different legal provisions relating to preventive detention, bail, burden of proof, search and seizure, or shoot-to-kill, they are uniform in one respect-- they legalize arbitrariness on the part of the law-enforcement agencies in the name of maintaining "law and order." Under their protection, the security forces are a law unto themselves, and become the prosecutor, witness, judge and executioner of their victims.

The cumulative experience in India with regard to black laws-- from the days of the Rowlatt Act in the colonial period to today-- is that they provide legal cover for eliminating the political resistance of the people. Political struggles in India have taken many forms. The organized parliamentary parties take their fights to the floor of the Lok Sabha or the state assemblies. But the most important political struggles in India have taken place outside the parliament, and outside the sway of parliamentary parties who have discredited themselves in more than one occasion through their narrow opportunism and self-serving aims.

It is these extra-parliamentary struggles of the people which are the targets of attack through black laws and state terrorism. It is only natural that extra-parliamentary struggles erupt, because the scope that exists for people to participate in the exercise of political power within the current electoral mechanisms is minimal. But whenever people take up extra-parliamentary struggles outside the control of one of the official parties, they are invariably considered a "law and order" problem. It is ironic that instead of seeking to renovate the political process with new mechanisms that can tackle the serious shortcomings in the present political process, the state only innovates with new black laws to crush these struggles.

The validity of India's myriad black laws has also been examined from time to time since 1950 by the High Courts and the Supreme Court. But on each occasion, the judiciary has ruled that black laws are in keeping with the provisions of the Indian constitution. Recently, they even upheld the continued detention of TADA victims, although the law itself has since lapsed. This is a matter of grave concern, because many consider the Indian constitution as the ultimate guardian of their rights. But in actual fact, it fails to defend any right as inviolable, and subjects each one to "reasonable" limitations. The constitution ultimately gives primacy to the executive branch of the government over everything else, and includes within it the mechanisms that permit the legislation and exercise of black laws.

To date, the National Security Act (NSA), the Maintenance of Internal Security Act (MISA) and the Terrorist and Disruptive Activities (Prevention) Act (TADA) have all had to lapse because of the weight of popular opposition. Of course, in each case, a variant of that law has since been brought back to life under one pretext or another. According to published reports, the Home Ministry in Delhi is currently drafting a variant of TADA for consideration by parliament in its next session.

The opposition of Indian people to state terrorism in general and black laws in particular is deeply rooted. Even the ancient Indian legal codes advised the praja to do away with a tyrant raja, while in modern times, people have handed electoral defeats to state governments from West Bengal in 1977 to Punjab in 1997 - and to central governments after the National Emergency in 1977.

In each of these cases, people had risen against Congress(I) governments for its use of state terrorism. What is noteworthy now - and particularly in the period since TADA was promulgated, is that the advocacy or use of black laws is no longer identified with just the Congress (I), but by virtually all political parties in power. Whether at the state-level or at the Centre under the United Front coalition, parties ranging from the Telugu Desam, DMK, Akali Dal, Asom Gana Parishad, BJP, Janata Dal, National Front (Kashmir), Rashtriya Janata Dal, CPI, or CPI(M) have brought disrepute upon themselves because of their implicit support or use of black laws - even though most of these parties have themselves been victims of state terrorism at one time or another.

In the opinion of the AIPSG, it is urgent for people to demand that the Indian state withdraw the use of black laws from all parts of India, and reject any future attempt to enact such legislation. People who participate in political opposition just cannot be dismissed as "law and order" problems and be dealt with through incarcerations and fake encounters. All those being held in detention under the black laws must be immediately released and compensated. This must be a demand of all the people of India, irrespective of their backgrounds, or where they live, for an attack on the rights of any part of the polity is an attack on the rights of everyone. Black laws are a black mark on democracy, always and under all circumstances.

Association of Indian Progressive Study Groups
Earl Hall,
Columbia University New York,
NY 10027
Email: ipsg@maestro.com
www.columbia.edu/cu/ipsg