New Delhi: In a country where security agencies, paramilitary and police forces proliferate, 2021 witnessed the quiet birth of new ones with new powers.

— Jammu and Kashmir’s new Special Investigation Agency can prosecute crimes of “false narrative” and “spreading disaffection”. 

— Uttar Pradesh’s new Special Security Force is protected from civil or criminal action and can search or arrest anyone on “reasonable suspicion” alone, with no warrant or magistrate’s order. 

— Bihar’s new Special Armed Police can make arrests “on reasonable suspicion” without a warrant or order from a magistrate.

— The NATGRID is a surveillance system with unfettered access to 21 databases, including real-time information from agencies like the income tax department, banks, insurance companies, Indian railways, among others.

Considered together with new jurisdiction for a central paramilitary agency, the Border Security Force, in Punjab, West Bengal and Assam, the establishment of these new agencies heralds a new chapter in what critics have already warned as the emergence of ‘police states’ in J&K, UP and Bihar.  

These new agencies and their powers come at a time when free speech and expression are being stifled in what is supposed to be the world’s largest democracy: many provisions of the Unlawful Activities (Prevention) Act (UAPA), 1967—ostensibly meant to counter terrorism—and the colonial-era sedition law—struck down by most democracies—are  increasingly used against what are vaguely referred to as “anti-national” acts. 

Indeed, there is now a supporting new category of crimes by “anti-national elements” in national crime statistics of 2020, the latest available.

Criminalisation Of Expression, Impunity To Police

There is ample evidence of widening criminalisation of ordinary activity and expression. 

— In January 2020, a Muslim comedian was arrested and spent 37 days in jail for a joke he did not make. 

— In February 2020, a 23-year old climate activist did jail time for creating a Google document. 

— In November 2021, two young women journalists were detained by Tripura police while on a reporting trip. 

— Many student activists languished in jail for over a year, and others face continued incarceration for merely protesting against India’s new citizenship law. 

As a new Article 14 database and reporting (here, here, here and here) have revealed, section 124-A of the Indian Penal Code, 1860, is increasingly and widely used against a variety of expression.

On 4 December 2021, the effects of unchecked impunity granted to security forces under the Armed Forces Special Powers Act  (AFSPA) 1958 became evident, once again, after the army killed 14 civilians in the Mon district of Nagaland.  Home minister Amit Shah described the murders as “a case of mistaken identity”, but a first information report (FIR) filed by the police said the “intention” of the security forces was “to murder and injure civilians”.

The National Commission of Human Rights observed that it was “incumbent upon the security forces” to ensure “proper precaution with a humane approach even if it involved the militants”.

Use of excessive force is also evidenced from the treatment meted out to undertrial prisoners. According to official data shared by the ministry of home affairs, nearly five persons died in judicial custody in India every day over the last three years.

Examples of such police brutality in 2021 included multiple fractures and torn toe nails inflicted in police remand on a landless Dalit farmer’s son, arrested from a farmers’ protest site. In another case, a Dalit labour activist in custody was allegedly sexually assualted. 

Few concessions are made to those with chronic ailments. Recently, a research scholar in jail with a serious heart condition was denied medical services for over a year until the Allahabad High Court reprimanded the government for its failure to have him admitted in the All India Institute of Medical Sciences (AIIMS) for a heart surgery. An 84-year old patient of Parkinson’s disease died in prison after a long wait for a straw and sipper. 

These cases indicate a growing willingness to suppress dissent and abuse authority. 

Persistent criticism of the laws that embolden the law enforcement personnel and government come from several quarters—judges (here, here, here and here), former civil servants (here and here), activists and academics  (here, here and here)—but that has not deterred authorities. 

A ‘Special Investigation Agency’ in J&K

On 1 November 2021, days after union home minister Amit Shah’s visit, the home department of J&K issued an order to constitute a ‘Special Investigation Agency’ (SIA), reportedly to counter terrorism and ensure speedier investigations in terror-related cases. 

The move to set-up the SIA comes even as the Centre has maintained that all is well in Kashmir since the abrogation of Article 370, a special constitutional provision, in 2019.

For a region the Centre claims to have returned to “normalcy”, Kashmir reported more UAPA cases between 2014 and 2020 than anywhere else in India, save Manipur, according to 2020 national crime data, the latest available.

Between 2019 to August 2021, over 2,300 people in more than 1,200 cases were booked under the UAPA, and 954 under the Public Safety Act (PSA) 1978. According to official police data reviewed by the Indian Express, 46% of those arrested under the UAPA and about 30% of those detained under the PSA continue to be in jail.

While PSA cases showed a marked decrease in 2020, the number of UAPA cases increased (after a 2019 amendment, which allowed individual persons, as opposed to organisations, to be booked as terrorists), pointing to police intent to charge individuals with more stringent laws.

On one hand, some have argued that the newly created SIA will reduce the burden on the local police stations and enhance transparency. On the other hand, regional political parties and others (here, here and here) contended that the creation of a new agency is a tacit admission of the failure of the Centre’s policies in the region and is likely to be used to further stifle dissent. 

The manner in which the SIA has been established suffers from gross illegalities. The J&K administration has by-passed the standard legislative process, constituting a state agency through an administrative order and without consultation. 

As per the Constitution of India, the legislative mandate to create such agencies rests with the Parliament or state legislatures under Articles 245 and 246. The constitutionality of the order passed by the J&K administration, thus, is itself questionable. 

Inventing New Crimes In J&K

While the order suggests the SIA has been constituted along the lines of the central National Investigation Agency (NIA), which it says will serve as the “nodal agency for coordinating with the NIA”, there are significant disparities with regard to the offences they can investigate.

The J&K Home Department has sanctioned the “investigation and prosecution of offences” specified in an “Annexure” to the order. The Annexure lists 16 different acts and offences that the SIA may consider. 

Of these 16 legislations and offences, some are identical and traceable to the NIA Act, as amended in 2019. However, there are additional items which do not find mention in any penal law. These include: 

— 10. offences having terrorism linkage, all terrorist act, and terrorist financing...

— 16. cases relating to terrorism linked propaganda, false narrative, large-scale incitement, spreading of disaffection, enemy against Indian Union”.

These newly invented offences are neither defined nor have any backing in law. The power to act on such offences violates the Constitution’s Article 20(1), which states that “no person shall be convicted of any offence except for violation of any law in force at the time of commission of the act charged as an offence”.

In a region where civilians live in widespread fear—of homes being raided and burned, of bodies of those accused of terrorism or being supporters not returned to families—and journalists harassed and criminal cases filed against them, the possibility of misuse and misinterpretation of such vaguely worded terms cannot be ruled out. 

False Narratives And Manufactured Crimes

In September 2020,  the following were produced as evidence of terrorism by the NIA: a book called Great Russian Revolution; notices demanding implementation of a report to protect ecology in the Western Ghats and safeguard Adivasi interests; portraits of communist leaders Mao Tse Tung and Che Guevera; and books that propagated Marxist and Islamic ideologies. 

In October 2021, the Supreme Court, while granting bail to two students, held that mere recovery of literature from a person, membership of a banned organisation and shouting of slogans alone would not attract charges under the UAPA. Other courts have echoed these findings (here, here and here).

Given that the NIA has previously invoked provisions of the UAPA for mere possession of books and articles it considers objectionable, the SIA’s power to act on arbitrary and vague offences such as “false narrative” and “spreading disaffection” is fraught with the risk of imperiling individual liberties. 

The inclusion of “false narrative” in the list of offences infringes Article 19(1)(a), and by extension Article 21, as the fundamental right of speech and expression cannot be restricted on the ground of falsity alone, unless it falls under the ambit of “reasonable restrictions” imposed by Article 19(2).

These provisions also strike at the heart of Article 14 of the Constitution for being arbitrary. Former Chief Justice of India, Justice P N Bhagwati wrote in 1973: “..equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies… Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14”.

The creation of a new state agency is also questionable because of the issue of overlapping jurisdiction with the NIA. Ajai Sahni, a terrorism expert who runs the South Asia Terrorism Portal, an online platform that tracks militancy in the region, told The Wire: “They (NIA and SIA) operate in same old frameworks and under same political bosses, so what is going to be different this time?”

“How will the new agency work differently?” asked Sahni.

Sahni’s statement raises an important question about the independence of the SIA, which comes directly under the home department headed by the lieutenant governor of J&K. Since the lt governor is appointed by the President of India and nominated by the union government, the SIA’s ability to work autonomously is suspect, with the union government now assuming more control on security-related matters of J&K.

‘State Security Forces’, A Dark Trend

On 2 August 2020, in the midst of a raging pandemic, the government of UP passed an ordinance for the formation of a special force called the ‘Uttar Pradesh Special Security Force’ (UP SSF). 

Even as the UP government claimed the “top spot” in terms of law and order, in the ‘Statement of Objects and Reasons’ of the UP SSF Act, 2020, it claimed the need for “immediate legislative action”.

The UP SSF is tasked with the security and protection of notified persons or establishments, including court premises, administrative offices, shrines, metro rail, airports, banks, and industrial undertakings, among others, as may be notified by the state government.

The UP government claimed that a special force was required because its police and the UP Pradeshik Armed Constabulary (UP PAC) were not “specially trained and skilled” to protect these establishments. 

Yet, section 9 of the UP SSF Act contradicts the state’s contention, providing as it does for the UP PAC to work in coordination with the Force when required. 

The most notable provision of the UP SSF Act, is section 10(1), which provides for any member of the Force to make an arrest, search a person and his belongings without a Magistrate’s order or warrant, while allowing them to act on “reasonable suspicion” alone.  

The UP SSF has reportedly been constituted on the lines of the Central Industrial Security Force (CISF) and authorities claim that the powers of the UP SSF are similar to those provided under the CISF Act. 

Some have then questioned: if the new force is much like the CISF, why does the government not utilise the services of the central force?

Extraordinary Powers, Immunity To UP’s New Force

A reading of both the CISF and UP SSF Acts reveals significant differences in the functions and powers of the two forces.

The ambit of powers of the UP SSF is much wider when compared to the CISF. Under the CISF Act, only officers above a prescribed rank have the authority to search and seize without warrant, but the UP SSF Act accords these extraordinary powers to all ranks.

Another key difference is that CISF personnel do not enjoy the same immunities as members of the state’s special force. Section 15 the UP SSF Act provides blanket protection to the UP SSF against any “action taken in good faith”. Section 16 goes further, as it forbids courts from taking cognisance of an offence against any member of the state force for action taken in “discharge of duties”.

While section 21 of the CISF Act protects its personnel for acts done “under the orders of a competent authority”, it allows for civil or criminal proceedings against any CISF personnel found to have violated or breached their powers.

Justifying the move, the additional chief secretary (Home), Avaneesh Awasthi, said “this type of force is already working in Maharashtra and Orissa". 

Indeed, besides Maharashtra and Odisha, Karnataka, West Bengal and Kerala have also created somewhat similar State Industrial Security Forces (SISFs).

However, D. Kanakratnam, director general of police (DGP), Maharashtra State Security Corporation told the Hindustan Times: “We can arrest a person without a warrant, but cannot search a place without it”.

Similarly, a senior Odisha police official said that while Odisha Industrial State Force (OISF) was created in 2012 for protection of public and private industrial undertakings, it did not have the power of arrest, raid or seizure.

Abuses Of Power By Similar Special Forces

Even with fewer powers compared to the UP SSF, the OISF has exploited and abused its power in the past.

When Adivasis and Dalits of Niyamgiri, who had lost their land to a mining company, protested and demanded enrolment of their children in a nearby school and more jobs, a particularly violent OISF baton charge left 50 people injured and one dead. 

In light of the abysmal, recent track record of the UP criminal justice system, the decision to grant the UP SSF unfettered powers has evoked disquiet. As per Prison Statistics 2019, UP’s jails held the highest number of Muslim (21,139) and scheduled castes prisoners (17,995) in India. 

In 2005, a Congress-led government in Haryana disbanded its SISF for having been constituted illegally and the High Court of Punjab and Haryana upheld that decision. 

The then state government of Haryana also said that it had asked district commissioners to inquire if there was any demand for such industrial security staff, and said the force was disbanded after it was found that there was no one in industry or in commercial organisations interested in deploying the force.

UP’s decision to create a new force comes despite a shortage of regular police in the state. As per data compiled by the Bureau of Police Research and Development, as of July 2019, UP accounted for the highest number of vacancies in the police. 

Bihar Follows UP, Both Poor States With Understaffed Police

UP has announced five battalions of the UP SSF initially, at a cost of Rs 1747 crore. According to Awasthi, as many as 9,919 personnel will be deployed within three months in the first phase, after which 1,913 will be hired.

Ankur Otto, a project officer in the police reforms programme at the Commonwealth Human Rights Initiative, said that “setting up another force shows the government’s misplaced priorities. It is not increasing the efficiency of the current police force”.

Vibhuti Narain Rai, a retired UP DGP, told NewsClick: "The UPSSF won't work for a long time, as it will be very expensive.”

“In Uttar Pradesh, where a hospital, metro station, religious places easily get a security guard for Rs 10,000 per month, this (the SFF) will charge more than Rs 50,000,” said Rai. “No public or semi-government outfit can afford this expensive security guard.”.

Section 18 of the UP SSF Act allows the state government to pass any orders to “make necessary provisions.. as may appear to it to be necessary or expedient for removing the difficulties” and make clarifications from time to time, which is not an uncommon provision. It also provides an arbitrary and unconstitutional stipulation: that no such order shall be made after the expiry of two years from the date the Act becomes law. 

On 23 March 2021, the Bihar legislature enacted the Bihar Special Armed Police Bill, 2021, (BSAP Bill) amid significant protests by the opposition. On the passing of the Bill, the Bihar assembly witnessed chaos and violence, which spilled into the streets.

The provisions of the BSAP Act are much like the UP SSF. As in UP, Bihar, which is also short of regular police, promulgated during the peak of Covid-19, a controversial Act that grants unbridled powers and excessive discretion to a special force.

Centralisation Of Policing Powers & Excessive Surveillance

On 11 October 2021, the ministry of home affairs issued an order extending the jurisdiction of the central Border Security Force (BSF) in Punjab, West Bengal and Assam, without consulting the states concerned. Only Assam is governed by the BJP.

The BSF’s jurisdiction has been increased up to 50 km from the international borders of the three states, compared to the earlier limit of 15 km. In Gujarat, governed by the BJP, the ministry reduced the BSF’s jurisdiction from 80 km from the border to 50 km.

Jurisdiction was extended using the authority given to the BSF under the Criminal Procedure Code, 1973; Passport (Entry into India) Act, 1920; and Passport Act, 1967, which include the powers to arrest, search and seize. 

However, as per section 139(2) of the BSF Act, 1968, the union government cannot confer such powers on BSF personnel unless state governments agree.

The Punjab and West Bengal governments claimed that the union government’s unilateral decision to extend the jurisdiction of the BSF was a blatant attempt to centralise power and impinged on state autonomy. 

The state governments’ concerns appear to be valid in that ‘law and order’ is a state subject; yet the BSF will now be allowed to operate in a large part of the territories of these states. 

For instance, in Bengal, “nearly one-third of the state, and most parts of the geopolitically sensitive northern Bengal”, will now come under the jurisdiction of the BSF. In Punjab, the Force will be able to operate, either fully or partially, in “at least nine districts”.

While some have argued that the decision has been made to “strengthen the hands of state police”, others apprehend that the enhanced jurisdiction could result in the arbitrary use of powers and increased human rights violations (here, here, here and here). BJP-governed Assam welcomed the move.

In 2012, the then Gujarat chief minister, Narendra Modi, had himself opposed the same move that his home ministry recently approved. He wrote to then Prime Minister, Manmohan Singh, accusing the Centre of weakening India’s federal structure, while calling it a systematic move to “create a state within a state”.

A National Surveillance Grid With No Safeguards

In another attempt to centralise policing powers, the government of India is set to launch a surveillance system called the National Intelligence Grid (NATGRID), first announced in 2009 after the 26/11 Mumbai terror attacks.

The system is reported to have access to 21 databases, including real-time information from agencies like the income tax department, banks, insurance companies, Indian railways, among others.

The Centre has claimed that the NATGRID will counter terrorism and allow "speedy collection of actionable intelligence". However, the use of the system by the government in absence of adequate privacy laws and lack of transparency has triggered criticism from experts. 

A public interest litigation (PIL) filed before the Delhi High Court by lawyer Prashant Bhushan in 2020 challenged the execution of NATGRID and two existing systems—the Centralised Monitoring System (CMS) and Network Traffic Analysis (NETRA). 

While the CMS can listen in on an individual’s phone conversations, NETRA can track online personal activity. 

The PIL contended that these surveillance systems attack the constitutional right to privacy and allow law enforcement agencies to intercept and monitor all telecommunications. It is also alleged that permissions for surveillance are granted by the government routinely without proper oversight.

Without safeguards, the PIL argued, such “intrusive” mass surveillance systems would threaten privacy and individual liberties of Indian citizens.

(Mani Chander is a lawyer based in New Delhi.)