The state of Uttar Pradesh is witnessing novel attempts at vapourising freedoms through legislation, this time through the already notorious “Uttar Pradesh Special Security Force Act, 2020”.
In December, 2019, without any petitioner before it whatsoever, a division bench of the Allahabad High Court took suo motu cognisance of incidents of shootings which had become common on the premises of district courts and magistracies.
Their lordships proceeded to pass sweeping directions regarding maintaining records of advocates, ID cards, CCTV cameras, entry of litigants, etc. and also directed that a “specialised well-trained force” be provided for the purpose of maintaining security in District Judgeships throughout the State of UP along with existing security provided by CRPF.
However, by means of the Uttar Pradesh Special Security Force Act, 2020, the Yogi government has envisioned and created an elite force of armed personnel, along the lines of the Central Industrial Security Force (CISF) and the Central Reserve Police Force (CRPF).
The UPSSF will soon be deployed for the protection of private persons and their residential premises, strategic and vital installations (including courts), administrative offices, shrines, metro rail, airports, banks, other financial institutions, industrial undertakings and any other installations or establishments notified by the state government from time to time.
The constitutionality of this act is likely to be challenged in the courts soon and rightly so for it has many draconian provisions.
Any member of the UPSSF, of any rank whatsoever, is authorised to arrest, detain and search a person or any premises without any warrant or order of a Magistrate. The officer, on the spot and in the moment, is to be the sole judge of whether the said arrest, search or detention is necessary.
ARE THERE ANY EXISTING SECURITY FORCES WITH SUCH POWERS?
Now, in all fairness, members of the Central Industrial Security Force, maintained by the Central Government since 1968, have the same powers to search, seize, arrest and detain without any warrant or order of a Magistrate. But there are some major differences. The Yogi Adityanath government gives its true motives away because of certain peculiar provisions in the Act.
Within the CISF, only officers above a prescribed rank have the authority to search and seize without warrant, whereas within the UPSSF, this extraordinary power has been bestowed on all members of all ranks. Even members of the Central Reserve Police Force, also maintained by the Central Government since 1949, do not have the power to search or arrest without warrant.
CRPF is India's largest Central Armed Police Force for internal security. It has several establishments, 246 battalions and a sanctioned strength of more than 300,000 personnel. Besides being tasked with law and order, the CRPF also guards the Parliament House, assists the army in border security and has been active against foreign invasions (Pakistan and China) as well as Naxals.
The counter-insurgency operations in India have been entrusted to the CRPF. CRPF units are also deployed to countries all over the globe on missions as part of the United Nations Peacekeeping Force.
The CISF has a sanctioned strength of 1,80,000 personnel. Its role has undergone a diversification and it now also protects airports, seaports, metro rail networks, government buildings, heritage monuments, etc.
Apart from guarding industrial installations and sensitive buildings, CISF now also guards notified universities and premises of the corporate sector and provides consultancy services to public and private sector organisations. CISF is highly specialised, trained and fully equipped to provide protection from fire hazards.
Both CRPF and CISF specialise in VIP security as well as disaster management, provide additional security during elections, guard vital installations and conduct counter-naxal operations. In addition to CISF and CRPF, the government also utilises the National Security Guard (NSG), Border Security Force (BSF), and the Indo-Tibetan Border Police (ITBP) for personal security cover.
SO WHY IS THE FORMATION OF THE UPSSF A CONCERN?
These units of the Central Armed Police Forces are long established elite corps readily available to the states when need arises. And yet, the UP Special Security Force has been created unnecessarily and tasked with the same duties, but with one truly alarming feature in the UPSSF Act:
No member of the UP Special Security Force can be sued for a civil liability or prosecuted for any crime, for any excessive use of physical force, for violation of privacy or any other resultant harm, without prior sanction of the state government.
This is an immunity that is not even enjoyed by members of the CISF or CRPF or by the special police force of any other state. Members of the CISF and the CRPF have to adhere to strict guidelines and codes of conduct.
The UPSSF Act, 2020, provides that the state government may pass orders to remove difficulties and make clarifications as needed from time to time, which is also not an unusual provision and is most practical.
However, it also states that no such order shall be made after the expiry of a period of 2 years from the date of commencement of the Act.
This is not merely an unreasonable stipulation. In 2 years, the term of office of the Yogi government elected in March 2017, expires.
This indicates that an attempt is being made to invest the UPSSF battalions with powers and privileges that cannot be pared down by any other political party if BJP loses power in Uttar Pradesh in 2022.
The state police force is sought to be given powers and immunities greater than those available to the Central Armed Police Forces. Uttar Pradesh is sought to be transformed into a State within a State, its law enforcement agencies are being converted into a pseudo-army that can intervene in routine matters but is immune from prosecution except through special procedures.
The law enforcement agencies in UP are sought to be set free of laws that otherwise ensure the rule of law and protect civil liberties in other states within the Union.
Under the Act, for augmenting the force, in case such personnel are needed in large numbers, the Uttar Pradeshik Armed Constabulary may be deployed which in turn shall enjoy the same powers and immunities as the rest of the Special Security Force. Thus, at any whim of the ruling party, a veritable army may march down the streets, authorised to act as it sees fit and immune from prosecution in ordinary courts of law for its actions.
Throughout the Act, it is repeatedly provided that the special security force is to function as a wing of the state police force and its members are to be recruited and their conditions of service are to be regulated by the regular police authorities and the laws applicable to them.
But, this special force is to have its own commanding officer – an ADG-ranked officer – and its functions and powers shall be governed by this new Act and which in turn overrides the guidelines and restrictions on members of the ordinary police force.
THE UP GOVT’S TROUBLING USAGE OF PUBLIC ORDER LAWS
This is a doubly worrying move in light of the fact that the UP government has been playing fast and loose with laws relating to sedition, UAPA, Sec. 144 - Cr.P.C., house arrests and preventive detention, National Security Act, and the U.P. Gangsters Act, all in a bid to lock up dissenters and by-pass the courts completely.
These are laws under which it is next to impossible to be released on bail pending trial. Citizens who are anti-government are deemed anti-India and are sought to be convicted as gangsters and terrorists. In the aftermath of the anti-CAA protests in UP, the BJP-led governments across the country felt routinely suffocated by having to show grounds for arrest of protestors and felt defeated when arrestees were granted bails and were at liberty to continue their rhetoric in public.
Things become much more sinister if, before an arrestee is taken before a Magistrate or to the lock-up, the cops on the ground themselves are authorised to arrest without warrant and decide for themselves as to whether someone is “resisting arrest” or is involved in a crime.
Interestingly, this is not the first time that questionable orders of the Allahabad High Court have resulted in controversial schemes from the Yogi Cabinet.
Another over-reaching judgment passed in 2010 by the same judge of the Allahabad High Court has been used as basis for an executive order to charge anti-CAA protestors in UP with illegal destruction of public and private property during the riots of December, 2019.
However, it is unconstitutional for any court to direct the Executive to establish any tribunals or other authorities for the determination of people’s rights and liabilities, as this violates the principle of separation of powers. Nor can a tribunal or court be established by way of an order of the ruling party/Executive.
When this mechanism for recovering compensation from the protestors, by-passing the courts, was challenged before the Supreme Court and other benches of the Allahabad High Court early this year, the Yogi government proceeded to convert its executive order into an Ordinance so as to legitimise its actions.
However, the Yogi Adityanath government seems to have learned lessons in how to deploy the legislative process. Tribunals or police forces can only be constituted by an Act of the Legislature. Thus, the UP government did not pass a flimsy executive order that can be shredded in court on the first day, or which can be rescinded by the next political party that comes to power.
It used its majority in the legislative Assembly to first pass the Uttar Pradesh Special Security Force Ordinance in August, 2020, and converted the same into an Act of the legislative Assembly in just over a month to solidify the ground under its feet before the public outcry could even begin.
AN UNNECESSARY OVERREACH?
CRPF personnel already guard the court premises. The Allahabad High Court need only have hauled up the police authorities for the lack of training and vigilance on the part of police personnel deployed to guard the court premises. There was little need to create an entirely new security force to protect the courts.
Despite the overzealousness of the Allahabad High Court, it is not unusual for a state to have a special police force. However, a “specialized security force” usually has special skills, training and resources in order to carry out additional/special/onerous duties that the regular police force is not tasked with. A “Special Police Force” of a state does not imply one with extraordinary powers and immunities.
However, the Yogi Government’s Additional Chief Secretary (Home) Awanish Awasthi has stated that the need and legitimacy of this special security force is derived from the orders of the Allahabad High Court, and the same is reiterated in the Statement of Objects and Reasons of the Bill that was passed by the legislative Assembly.
This is an eye-wash to gain legitimacy in the eyes of the general public.
The Allahabad High Court’s orders do not direct or envisage the creation of a state-wide special security force with extraordinary powers and immunities, but merely a special unit paying close and exclusive attention to security within court premises.
Despite Uttar Pradesh failing to contain the spread of the novel coronavirus, much needed bureaucratic and ministerial will and a sum of Rs. 1747.06 crores has been doled out to set up this special security force, which has been described as the dream project of Chief Minister Yogi Adityanath.
Even if the extraordinary powers of the UPSSF are pared down by the High Court, it seems that the “Uttar Pradesh Special Security Force” is here to stay and will remain vested with wide powers in a state already (in)famous for police brutality and encounter killings.
Even when the lockdown fully ends, the residents of U.P. may not find public spaces as they used to be or as they remember them.
(Riya Ghosh is a graduate from Dr. Ram Manohar Lohiya National Law University, Lucknow, and an advocate practicing in courts across Lucknow Judgeship. This is an opinion piece and the views expressed in this article are that of the writer’s own. The Quint neither endorses nor is responsible for the same.)
(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.)