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'Criminalising Thought, Identity & More': 8 Laws Experts Call Unconstitutional

Which laws go against the venerated document we are slated to celebrate this Republic Day? We answer.

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'Criminalising Thought, Identity & More': 8 Laws Experts Call Unconstitutional
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Imagine this: Tomorrow the police show up at your door, tell you that at a conference you indicated a plan to wage a war against India and arrest you.

There is no evidence to support this claim. The state just presumes your guilt based on the books you read and the company you keep.

Or...you believe in a certain ideology. You did not necessarily act on that ideology but even believing it is a crime.

Meanwhile, you continue to languish in prison for several years. With neither bail nor a trial in sight.

Finally, when the trial takes place you have already spent several years in jail. You might be acquitted then, but will you be compensated for the years you lost in jail? Not really.

Dystopian? Wrong. 

The Unlawful Activites Prevention Act (UAPA), a preventive detention law, which allows the government to designate an individual as a 'terrorist' without trial, can do just this.

But this, according to legal experts, violates the constitution.

And not just this – there are other laws, in their opinion, that criminalise livelihood, culture and identity – all of which go against the values enshrined in the venerated document, we are slated to celebrate this Republic day.

Which laws are these? And how are they unconstitutional? We find out.

'Criminalising Thought, Identity & More': 8 Laws Experts Call Unconstitutional

  1. 1. The Unlawful Activites Prevention Act

    “According to UAPA, if there is a prima facie case against me, I can be denied bail. But what is a prima facie case? It can even be an allegation of planning a conspiracy to overthrow the government. But this has to be substantiated, if it's not then it's as good as fiction. This is exactly what UAPA promotes."
    Supreme Court Lawyer Ujjaini Chatterji

     The Law: The Unlawful Activites Prevention Act (UAPA), a preventive detention law, which allows government to designate an individual as a “terrorist" without trial.

    • The legislation widens the ambit of terrorism and covers acts which are “likely to threaten” or “likely to strike terror,” meaning you can be imprisoned for having a particular ideology without having acted on it

    • It can also deem any organisation a terrorist organisation and ban it

    • It also puts the burden of proving innocence on the accused, making jail not bail the norm


    As articulated by Chatterji:

    “How can thinking be a crime?”

    A study by The People’s Union of Civil Liberties (PUCL), which cites data from the National Crime Records Bureau, reveals that less than 3% of the arrests made under UAPA between 2015 and 2020 resulted in convictions. 

    Further, the high rate of acquittal (97.2%) showed that prosecution under UAPA lacks merit in huge majority of the cases, PUCL said in its report titled “UAPA: Criminalising Dissent and State Terror."

    Even so, bail is very difficult for someone who has been accused of terror-related offences under the UAPA. Essentially because, according to Section 43D(5) of the Act, a court cannot grant bail to the accused in such cases, if there are reasonable grounds to believe that the accusations against them are prima facie true.


    Why do experts think the UAPA is unconstitutional? 

    • It goes against the legal maxim of innocent until proven guilty

    • It violates the right to personal liberty and promotes arbitrariness, thus going against Articles 21 & 14 of the constitution

    • It goes against the basic structure features of ‘individual freedom, equality and rule of law

    Expand
  2. 2. The Wildlife Protection Act

     “The Act criminalises you for using forest resources. But who uses forest resources? Adivasis living in the forest areas. So, under this law, if you are an Adivasi, you will be criminalised."
    Supreme Court Lawyer Disha Wadekar 

    The Law: The Wildlife Protection Act 1972 and its 2022 amendment is meant for the protection of plants and animal species in forests. Among other reforms, both the 1972 & 2022 versions of the act outlaw hunting certain animal species or harvesting certain plant, or animal species.

    Under the 1972 act, out of the offences recorded by the Forest Department between 2011-2020, close to 78% of the accused persons belonged to an oppressed caste community and were incarcerated for hunting vermin species, according to a report by the Criminal Justice and Police Accountability Project (CPA).

    How does this violate the constitution? 

    • “Hunting tribes have existed since time immemorial. They hunt vermin species like pigeons, fish and so on. The act criminalises this and puts them behind bars for violating the fifth and sixth schedule of the constitution," Wadekar told The Quint.

    • The Fifth and Sixth schedule of the constitution allocate special land rights to tribal communities because their livelihood and identity is drawn from the land on which they live.

    • To enable more local control, the fifth and sixth schedules limit state control and directions over the land

    As Ankit Bhatia, Soumya Jha and Namita Wahi, in a piece for the Centre for Policy Research (CPR), point out: 

    “The Constitution guarantees special protections for land rights of Scheduled Tribes in scheduled areas because land is not only the most important source of tribal livelihoods, but it is also central to their community identity, history and culture.”

    Expand
  3. 3. The Citizenship Amendment Act (CAA), 2019

    “With the CAA, for the first time a legislation is making a distinction based on religion for giving citizenship."
    Supreme Court Lawyer Paras Nath Singh

    The Law: The 2019 Act seeks to make refugees who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. It, however, excludes Muslims from said countries.

    How does this violate the constitution? 

    “It is manifestly against the idea of a constitutional democracy. You cannot say that we will allow refugees if you are from specific religious communities but if you are a Muslim, you are not welcome, ” Chatterji told The Quint.

    Experts reckon that the CAA is violative of:

    • The right to equality before the law, as is mandated under article 14 of the constitution

    • The principle of secularism, which is part of the basic structure of the constitution

    Expand
  4. 4. Constitution 103rd Amendment Act - EWS Reservations

     “Reservations for oppressed castes was a constitutional right. The reservations for economically weaker sections (EWS) however, not only go against the principle of reservations but also privileges the oppressor community.”
    Supreme Court Lawyer, Disha Wadekhar

    The law: The Constitution 103rd Amendment Act introduces 10 percent reservation for economically weaker sections of the society. This, however, leaves out SC/ST/OBC communities on the grounds that it is already “loaded with benefits.”


    How does this violate the constitution?

    • Contradicts the right to equality before the law under Article 14

    • Alters the equality code, which includes non-discriminatory and non-exclusionary principles, of the basic structure of the constitution

    Expand
  5. 5. Anti-Conversion Laws

    “These laws that are coming up in various states are used by the state machinery to penalise a particular class of people who belong to a certain community, on the grounds of religion.”
    Delhi High Court Lawyer Harshit Anand

    The Law: Although India has no central law barring conversions, several states have come up with their own versions of anti-conversion laws  which criminalise converting or attempting to convert any person to another religious faith allegedly through “force or fraudulent means.”

    This often criminalises interfaith marriages as well.

    How do these laws violate the constitution?

    • They go against the fundamental right to freedom of religion (under Article 25) which has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world

    • These laws are directly in contravention with the secular character of the constitution

    Expand
  6. 6. Anti-Begging Law

    “This law criminalises homelessness, can you imagine that? Homelessness and begging are never community-blind. Who are these communities? Among others from oppressed castes, there are communities like the nomadic communities, the denotfied tribal communities, who by nature of their traditional livelihood are nomadic in nature.”
    Supreme Court Lawyer Disha Wadekar

    The law: India has no federal law on begging and destitution. However, about 20 states have adopted the Bombay Prevention of Begging Act, 1959, which carries a penalty of detention of three to 10 years in 'beggar homes.'

    Wadekar told The Quint, that this act criminalises Madaris, saperas and other nomadic communities which dont live in permanent settlements as part of their culture. 

    Chapter one of the act says any person “having no visible means of subsistence and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exist soliciting or receiving alms" can be deemed a beggar.

    Chapter 2  gives powers to authorities to arrest “beggars” without a warrant.

    "If you are arrested under this law and then released onto the streets, you have no other livelihood opportunity but to go back to doing that again. And once you are out on the streets you  can be criminalised again. It is an endless cycle,” Wadekar added.

    How does this violate the constitution?

    • Inconsistent with the rights to livelihood and dignity, guaranteed by Article 21 of the constitution

    • Violates equal treatment before law which is part of article 14

    Expand
  7. 7. New Labour Codes

    “You cannot snatch my right to life from me and legally sanction exploitation.”
    Supreme Court Lawyer Ujjaini Chatterji

    The law: The Indian parliament passed four labour codes in  2019 and 2020. These four codes, that consolidated the 44 existing labour laws,  are: The Industrial Relations Code 2020, The Code on Social Security 2020, The Occupational Safety, Health and Working Conditions Code, 2020 and The Code on Wages 2019.

    Among other concerns, Chatterji pointed out that these codes increase the maximum working hours from 8-12. They also deny workers the right to form trade unions and indulge in collective bargaining for their rights.


    How does this violate the constitution?

    • Contradicts the non-discrimination and non-exploitation related principles found in the basic structure of the constitution. Incidentally, the 8-hour rule became a part of our constitution after it was borrowed from international labour rights movements

    • Goes against the right to protest which comes under the freedom of speech and expression (Article 19) of the constitution 

    Expand
  8. 8. Criminal Procedure Identification Act, 2022

    “Based on the current form of the bill, it would be violative of the fundamental right to privacy, because under the Justice Puttuswamy [right to privacy] judgment, beyond a law being passed, it also needs to have a necessary state-purpose that is tied only to a proportional invasion into a person's privacy. It also requires adequate safeguards.”
    Apar Gupta, lawyer and executive director of the Internet Freedom Foundation (IFF)

    The Law:  The new law replaces the colonial Identification of Prisoners Act, 1920 and authorises the executive to take "measurements" of convicts and other persons for the purpose of identification and investigation in criminal matters.

    The “measurements” Anand points out can range from retina scans to biological samples. The National Crime Records Bureau (NCRB) can preserve these details for 75 years.

    “It allows for excessive delegation where unbridled powers have been given to the magistrate without any kind of statutory prescription," Anand further added.

    How does this violate the constitution?

    • It violates one’s right to bodily integrity and privacy mandated under article 21

    • It goes against the ideals of individual freedom and equality, which form part of the basic structure of the constitution

    • It goes against the right to equal protection under law guaranteed under article 14 and promotes arbitrariness

    Expand

The Unlawful Activites Prevention Act

“According to UAPA, if there is a prima facie case against me, I can be denied bail. But what is a prima facie case? It can even be an allegation of planning a conspiracy to overthrow the government. But this has to be substantiated, if it's not then it's as good as fiction. This is exactly what UAPA promotes."
Supreme Court Lawyer Ujjaini Chatterji

 The Law: The Unlawful Activites Prevention Act (UAPA), a preventive detention law, which allows government to designate an individual as a “terrorist" without trial.

  • The legislation widens the ambit of terrorism and covers acts which are “likely to threaten” or “likely to strike terror,” meaning you can be imprisoned for having a particular ideology without having acted on it

  • It can also deem any organisation a terrorist organisation and ban it

  • It also puts the burden of proving innocence on the accused, making jail not bail the norm


As articulated by Chatterji:

“How can thinking be a crime?”

A study by The People’s Union of Civil Liberties (PUCL), which cites data from the National Crime Records Bureau, reveals that less than 3% of the arrests made under UAPA between 2015 and 2020 resulted in convictions. 

Further, the high rate of acquittal (97.2%) showed that prosecution under UAPA lacks merit in huge majority of the cases, PUCL said in its report titled “UAPA: Criminalising Dissent and State Terror."

Even so, bail is very difficult for someone who has been accused of terror-related offences under the UAPA. Essentially because, according to Section 43D(5) of the Act, a court cannot grant bail to the accused in such cases, if there are reasonable grounds to believe that the accusations against them are prima facie true.


Why do experts think the UAPA is unconstitutional? 

  • It goes against the legal maxim of innocent until proven guilty

  • It violates the right to personal liberty and promotes arbitrariness, thus going against Articles 21 & 14 of the constitution

  • It goes against the basic structure features of ‘individual freedom, equality and rule of law

ADVERTISEMENT

The Wildlife Protection Act

 “The Act criminalises you for using forest resources. But who uses forest resources? Adivasis living in the forest areas. So, under this law, if you are an Adivasi, you will be criminalised."
Supreme Court Lawyer Disha Wadekar 

The Law: The Wildlife Protection Act 1972 and its 2022 amendment is meant for the protection of plants and animal species in forests. Among other reforms, both the 1972 & 2022 versions of the act outlaw hunting certain animal species or harvesting certain plant, or animal species.

Under the 1972 act, out of the offences recorded by the Forest Department between 2011-2020, close to 78% of the accused persons belonged to an oppressed caste community and were incarcerated for hunting vermin species, according to a report by the Criminal Justice and Police Accountability Project (CPA).

How does this violate the constitution? 

  • “Hunting tribes have existed since time immemorial. They hunt vermin species like pigeons, fish and so on. The act criminalises this and puts them behind bars for violating the fifth and sixth schedule of the constitution," Wadekar told The Quint.

  • The Fifth and Sixth schedule of the constitution allocate special land rights to tribal communities because their livelihood and identity is drawn from the land on which they live.

  • To enable more local control, the fifth and sixth schedules limit state control and directions over the land

As Ankit Bhatia, Soumya Jha and Namita Wahi, in a piece for the Centre for Policy Research (CPR), point out: 

“The Constitution guarantees special protections for land rights of Scheduled Tribes in scheduled areas because land is not only the most important source of tribal livelihoods, but it is also central to their community identity, history and culture.”

ADVERTISEMENT

The Citizenship Amendment Act (CAA), 2019

“With the CAA, for the first time a legislation is making a distinction based on religion for giving citizenship."
Supreme Court Lawyer Paras Nath Singh

The Law: The 2019 Act seeks to make refugees who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. It, however, excludes Muslims from said countries.

How does this violate the constitution? 

“It is manifestly against the idea of a constitutional democracy. You cannot say that we will allow refugees if you are from specific religious communities but if you are a Muslim, you are not welcome, ” Chatterji told The Quint.

Experts reckon that the CAA is violative of:

  • The right to equality before the law, as is mandated under article 14 of the constitution

  • The principle of secularism, which is part of the basic structure of the constitution

ADVERTISEMENT

Constitution 103rd Amendment Act - EWS Reservations

 “Reservations for oppressed castes was a constitutional right. The reservations for economically weaker sections (EWS) however, not only go against the principle of reservations but also privileges the oppressor community.”
Supreme Court Lawyer, Disha Wadekhar

The law: The Constitution 103rd Amendment Act introduces 10 percent reservation for economically weaker sections of the society. This, however, leaves out SC/ST/OBC communities on the grounds that it is already “loaded with benefits.”


How does this violate the constitution?

  • Contradicts the right to equality before the law under Article 14

  • Alters the equality code, which includes non-discriminatory and non-exclusionary principles, of the basic structure of the constitution

ADVERTISEMENT

Anti-Conversion Laws

“These laws that are coming up in various states are used by the state machinery to penalise a particular class of people who belong to a certain community, on the grounds of religion.”
Delhi High Court Lawyer Harshit Anand

The Law: Although India has no central law barring conversions, several states have come up with their own versions of anti-conversion laws  which criminalise converting or attempting to convert any person to another religious faith allegedly through “force or fraudulent means.”

This often criminalises interfaith marriages as well.

How do these laws violate the constitution?

  • They go against the fundamental right to freedom of religion (under Article 25) which has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world

  • These laws are directly in contravention with the secular character of the constitution

ADVERTISEMENT

Anti-Begging Law

“This law criminalises homelessness, can you imagine that? Homelessness and begging are never community-blind. Who are these communities? Among others from oppressed castes, there are communities like the nomadic communities, the denotfied tribal communities, who by nature of their traditional livelihood are nomadic in nature.”
Supreme Court Lawyer Disha Wadekar

The law: India has no federal law on begging and destitution. However, about 20 states have adopted the Bombay Prevention of Begging Act, 1959, which carries a penalty of detention of three to 10 years in 'beggar homes.'

Wadekar told The Quint, that this act criminalises Madaris, saperas and other nomadic communities which dont live in permanent settlements as part of their culture. 

Chapter one of the act says any person “having no visible means of subsistence and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exist soliciting or receiving alms" can be deemed a beggar.

Chapter 2  gives powers to authorities to arrest “beggars” without a warrant.

"If you are arrested under this law and then released onto the streets, you have no other livelihood opportunity but to go back to doing that again. And once you are out on the streets you  can be criminalised again. It is an endless cycle,” Wadekar added.

How does this violate the constitution?

  • Inconsistent with the rights to livelihood and dignity, guaranteed by Article 21 of the constitution

  • Violates equal treatment before law which is part of article 14

ADVERTISEMENT

New Labour Codes

“You cannot snatch my right to life from me and legally sanction exploitation.”
Supreme Court Lawyer Ujjaini Chatterji

The law: The Indian parliament passed four labour codes in  2019 and 2020. These four codes, that consolidated the 44 existing labour laws,  are: The Industrial Relations Code 2020, The Code on Social Security 2020, The Occupational Safety, Health and Working Conditions Code, 2020 and The Code on Wages 2019.

Among other concerns, Chatterji pointed out that these codes increase the maximum working hours from 8-12. They also deny workers the right to form trade unions and indulge in collective bargaining for their rights.


How does this violate the constitution?

  • Contradicts the non-discrimination and non-exploitation related principles found in the basic structure of the constitution. Incidentally, the 8-hour rule became a part of our constitution after it was borrowed from international labour rights movements

  • Goes against the right to protest which comes under the freedom of speech and expression (Article 19) of the constitution 

ADVERTISEMENT

Criminal Procedure Identification Act, 2022

“Based on the current form of the bill, it would be violative of the fundamental right to privacy, because under the Justice Puttuswamy [right to privacy] judgment, beyond a law being passed, it also needs to have a necessary state-purpose that is tied only to a proportional invasion into a person's privacy. It also requires adequate safeguards.”
Apar Gupta, lawyer and executive director of the Internet Freedom Foundation (IFF)

The Law:  The new law replaces the colonial Identification of Prisoners Act, 1920 and authorises the executive to take "measurements" of convicts and other persons for the purpose of identification and investigation in criminal matters.

The “measurements” Anand points out can range from retina scans to biological samples. The National Crime Records Bureau (NCRB) can preserve these details for 75 years.

“It allows for excessive delegation where unbridled powers have been given to the magistrate without any kind of statutory prescription," Anand further added.

How does this violate the constitution?

  • It violates one’s right to bodily integrity and privacy mandated under article 21

  • It goes against the ideals of individual freedom and equality, which form part of the basic structure of the constitution

  • It goes against the right to equal protection under law guaranteed under article 14 and promotes arbitrariness

ADVERTISEMENT

(This article is a part of the The Quint's 'Know Your Constitution' series, to celebrate 73 years of India being a republic. Click here to view the entire series.)

(Click here to play the full 'Know Your Constitution' quiz by The Quint, on lesser-known facts regarding the Indian Constitution.

The first 10 people to correctly answer ALL 20 questions of the quiz will win a Quint Membership, with benefits including members-only content and videos, exclusive documentary screenings, previews to Special Projects, and much more!)

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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