What is the MISA Act of India

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In this sense, India's development path can be a good example of the fact that human rights are not linked to a particular culture. For, as can be shown, Indians themselves put the issue of human rights on the political agenda and consequently determined the degree of their implementation.

The emergence of the idea of ​​fundamental rights in the course of the independence movement

In India, the dispute over the introduction of basic rights was conducted both vis-à-vis the colonial power and within the independence movement. Essential elements of this catalog of rights emerged before independence was achieved. In addition, the implementation of this idea was linked to the progressive realization of independence from the British colonial power. The main political arena of the debate was the Indian National Congress (INC). Its development will serve to illustrate these relationships in the following.

The INC was founded in 1885. At first it was an exclusive club of lawyers and teachers who only wanted to improve the administration of Indian conditions. In 1919, Mahatma Gandhi became a leading figure in the INC. With it an important change in the movement was indicated: The INC became a political mass movement, and changed its methods and political goals. He now demanded a growing share of political power, which made the conflict with the British colonial government immanent. The 34th meeting of the INC in Amritsar that same year signaled this change. For the first time, a resolution on civil rights was also adopted there.

But as much as Amritsar showed the change, the INC was caught up in the old political conditions and their power elite. Her influence, which is still strong, was shown in two concrete moments. On the one hand, the INC still saw itself in Amritsar as "part of the British Empire" [2], so that it was not yet possible to speak of the implementation of the idea of ​​India's independence in the INC. On the other hand, the resolution on civil rights that was introduced there remained weak and contradictory. For example, the representatives of the INC envisaged cuts in freedom of speech, freedom of the press and freedom of assembly, "if under sentence by an ordinary Court of Justice and as a result of lawful and open trial." [3]

The process initiated in Amritsar reached its preliminary climax within the next year. The new policy was enforced more strongly at a special meeting of the INC in Calcutta in September 1920 when the program of a "policy of progressive, non-violent non-cooperation" [4] was adopted. As a result, a more extensive declaration of rights was presented at the INC meeting in Nagpur three months later. The President of the INC, C. Vijiaraghavachariar, presented them as part of the draft constitution for the Dominion British India. Now the INC spoke out explicitly against torture and the death penalty: "No torture or corporal punishment of any kind and no degrading punishment shall be legal." and freedom of assembly should be guaranteed, and education was made the most important task of government.

This political development continued until the demand for "complete independence" was adopted in December 1929. At the 45th meeting of the INC in March 1931, the resolution "Fundamental Rights and Economic Program" [6] was presented, which was presented or supported by none other than Mahatma Gandhi and Villabhai Patel. The final version of this resolution was finally adopted in August 1931 under the title "Fundamental Rights and Obligations and the Economic Program" [7]. At the latest with this resolution it became clear that demands for freedom of assembly, freedom of conscience, protection of minorities, equality before the law regardless of religion, caste, belief or gender, neutrality towards religion, universal suffrage, compulsory education, abolition of the death penalty and freedom of movement are entering political culture India and Indian thought had found. Embedded in the political struggle of the INC, these demands against the British colonial power were seen as a condition for a positive realization of India's "self-government". The realization of basic rights was thus made dependent on the success of the independence movement. Interestingly, even then, political rights were linked with economic and social rights.

However, neither in the 1930s nor, as we shall see, in the following years, the INC advocated a full guarantee of fundamental rights. The reasons for this are varied and must be understood against the background of the historical situation and the political conditions at the time: The resolution of 1931 was passed against the background of a compromise with the British colonial power. As part of the Gandhi-Irwin Pact, the INC had given up its blockade and the campaigns of civil disobedience, and Mahatma Gandhi went to London for the negotiations of the Round Table Conference that year. With its willingness to compromise, the INC also weakened the substance of the resolution on fundamental rights. Thus, in the conflict between the proponents of a constitutional striving for independence and those who relied on civil disobedience and a mobilization of the masses, the forces that built on cooperation with the colonial power prevailed. Ultimately, however, it became clear that a political mandate and public mobilization were necessary to promote fundamental rights.

Even the immediate vicinity of the INC can be seen as a good example of this: The All-India Muslim League, the political predecessor party of the state of Pakistan, has never adopted a resolution on fundamental rights. Instead, they and especially their chairman M.A. Jinnah on a constitutional path and negotiations to secure the establishment of the state of Pakistan. The political consequences of this development continue to have an effect to this day: Constant interventions by the military and bureaucracy block any progress in the implementation of civil rights. The executive power has been sustainably strengthened at the expense of civil society. As we shall see in the next paragraph, India also experienced a similar, if not comparable, development.

Civil rights in the 1950 Indian Constitution

Independent India passed its first constitution on January 26, 1950. As indicated above, the constitution reflected contradicting developments. To a large extent, it is both revolutionary and conservative. It is revolutionary insofar as the constitution locates its source with the "people of India" [8]. With this in mind, the constitution integrates Part III (Fundamental Rights), an independent catalog of fundamental rights (Articles 12 to 35). In addition, the Constitution gives priority to fundamental rights, as Article 13 annuls laws that are or are in conflict with fundamental rights. The constituent assembly also declared universal suffrage (Article 326). [9] Some of the previously existing constitutional reservations were also seen as conflicting with this progressive legitimacy and were therefore curtailed. So was z. B. the executive power of the princely states abolished.

The constitution of independent India is conservative in that it is essentially a continuation of the colonial legal and administrative system that was created in 1935 with the Government of India Act. All laws that existed prior to the entry into force of the Constitution should continue to be in force under Article 371. So z. B. to this day the Indian Penal Code of 1860, which provides for the death penalty (Article 121) [10]. The Congress Party stepped back behind its own political goals. It seemed to regard such a development as not very dramatic or "natural", since it now saw "the administrative system [...] connected in an intimate relationship with the people" [11].

The extensive continuation of the colonial system led to various contradictions in the constitution. [12] Although the basic rights are an essential part of the constitution, their exercise is restricted by so-called reasonable restrictions in the interests of state security and public order, among other things. [13] Even if these restrictions were not regarded as absolute when the constitution was passed, they were nevertheless suitable for subsequent political elites to use for their own purposes. Thus, contrary to the prioritization of Article 13, the fundamental rights are largely vulnerable. The provisions on religious freedom set out in Article 25 did not prevent the state from intervening in religious matters. The political content of the constitution was also further limited by the provisions on preventive detention. Articles 22 and 34 even place them within the catalog of fundamental rights. In addition, Articles 352 to 360 of the Constitution codify Emergency Provisions. I.a. these regulate the Centre's relations with the Union states (Article 356) and hereby give the President the possibility, under certain circumstances, of removing the elected governments of the Union States. Such an approach of the president is only provided on the advice and with the help of the cabinet and his prime minister (Article 74), however, the head of state inherited with Article 356 of the Viceroy of the Government of India Acts "a legal reserve of power which a determined president will one day inherit could make use of ". [14]

When the Constituent Assembly negotiated the chapter on fundamental rights, the mothers and fathers of the constitution were aware of the international human rights discussion and the 1948 Universal Declaration of Human Rights had been available for two years. [15] Ultimately, however, they rated the security of the state higher than individual human rights. Parties that had experienced reprisals themselves in the independence movement now demanded that it was time to "soften the extravagant and idealistic demands of the people". [16] Thus independence did not bring full implementation of the principle of political accountability either. Rather, the Indian system suffered long-term damage because special laws, which according to a number of observers [17] had been declared exceptional as early as 1917, continued to hold a powerful position within the new legal system. Whether fundamental rights are guaranteed or denied in this context remains a central question of the post-colonial era.

Political development after 1950

Independent India has had an eventful history. One of the most important features of the post-colonial era is the gradual predominance of the executive branch, which repeatedly made use of the possibility of imposing a state of emergency. In the course of this, the special and standard law also converged "at the expense of the latter" [18].

The Preventive Detention Act of January 26, 1950 was the first step by independent India to take in this regard. With him, the District Magistrate, the executive head of the smallest administrative unit, was empowered to arrest people in order to prevent them from "acts against the security of the state" [19]. In the course of the wars with the People's Republic of China in 1962 and with Pakistan in 1965, India made its first experiences with the proclamation of a state of emergency from October 26, 1962 to January 10, 1968. This policy continued with the conflict in East Pakistan, when the state of emergency was declared again on December 12, 1971. It is true that the reason for the imposition of the states of emergency was "attacks from outside", but in all of these cases the exceptional provisions remained in force even after the fighting had ended. [20] The provisions on preventive detention had since been resurrected on July 2, 1971 under the name Maintenance of Internal Security Act (MISA), after the first law on this expired on December 31, 1969.

The Unlawful Activities (Prevention) Act of 1967 [21] is another example of the standardization of special laws [22], although other provisions of the executive branch already made it possible to contain public protests. The Code of Criminal Procedure (Act V) of 1898 and its Section 144, adopted from the colonial era, has become synonymous throughout the country with the negation of freedom of assembly. [23] This political and legal development reached its first climax on July 25, 1975, when then Prime Minister Indira Gandhi declared a state of emergency due to internal unrest. [24] The state of emergency, which lasted until March 21, 1977, has become known in particular for the negation of civil rights, the violation of human rights and the revocation of freedom of assembly and the freedom of the press. [25] Under the provisions of the MISA and Defense of India Act, 111,000 people were arrested in just under two years. In this context, the 42nd amendment to the constitution also substantially expanded the idea of ​​fundamental duties by including a whole new section in the constitution with Part IVa. The emphasis on basic civic duties was by no means self-evident in the Indian context, but rather reflects a political development that grants the executive increasing power.

Even after the state of emergency was lifted and the Janata Alliance came to power, constitutional amendments such as the Fundamental Duties and all other special laws passed under the emergency regime remained in force. Paradoxically, these special provisions initiated by Indira Gandhi were directed against herself and the Congress Party. The Janata alliance of former opposition forces "initiated [within days] a massive unfolding of centralized power". [26]

This development continued with the re-election of Indira Gandhi in 1980. A new law on preventive detention, the National Security Act (NSA), was immediately passed. A new type of law then came into effect in the light of the political situation in Punjab after the Terrorist and Disruptive Activities (Prevention) Act (TADA) was passed in 1985. TADA enabled increased penalties and set up special courts. The law was founded with civil unrest and growing secessionism. Until it was repealed in 1995, it was used in other parts of the country such as Jammu & Kashmir, the north-east and the central eastern states of the Union. Between 2001 and 2004, TADA was reborn in a very similar form as the Prevention of Terrorism Act (POTA) against the backdrop of the fight against terrorism. However, POTA surpassed its predecessor in one essential respect: Actions that "alienate any population group or disturb the harmony between the various population groups" were no longer subject to special punishment. POTA was thus the legal expression of a time that was shaped by the growing importance of Hindu nationalism. [27] Hindu nationalist attacks against Muslims, among others In contrast to previous laws, should no longer be particularly punished. The most prominent prisoner under POTA was Vaiko, MP for the Tamil party MDMK.

After POTA expired, anti-terrorism provisions were to be added to the Unlawful Activities (Prevention) Act of 1967 in 2004. In the course of 2005, the discussion about the review of the Armed Forces (Special Powers) Act of 1958 became politically significant. This law enables the army in the North-East and Jammu & Kashmir to use firearms unhindered. The frequent use of special executive rights in the Union states, where up to the present day 120 governments have been ousted and subordinated to central administration through the so-called President's Rule, should not go unmentioned at this point.


Special laws and exemptions have achieved a powerful position in the legal and political order of India. The executive branch has grown in power and has been strengthened unilaterally at the expense of other governments. Preventive detention, exception regulations and safety legislation were adopted and applied to an increasing extent in this context. Ultimately, they had a seductive charm for the "executive power" [28] and "the security legislation enormously strengthened the power of the government to curtail civil rights and regulate the affairs of citizens" [29]. In the absence of widespread civil society institutions, the abuse of that power was inherent and the so-called safeguards to prevent abuse were ineffective. [30]

The provisions on preventive detention had been judged critically by the courts because they "were not in line with the ideals of the rule of law" [31]. However, the courts saw themselves hardly in a position - even if they were "not very much in favor" of this authorization basis "[32] - to do anything against them, since the process itself had been legalized by the constitution. Thus, special laws have increasingly become standard laws. In this process, fundamental rights have increasingly been curtailed and replaced by obligations.

The consequences of this development require further analysis, as there is a possibility that it will not only weaken the rights of citizens, but also "weaken the state or even put it in danger of collapse" in the medium term [33]. This is to be understood in the context of recent political developments. Because with the Bharatiya Janata Party from 1998 to 2004 a political force was in power that questions the concept of human rights. Ideologically, it defines every Indian as a Hindu and thus challenges the idea of ​​a citizen. Although the party recognizes the idea of ​​the individual, it sees the individual embedded in a larger ideological context that ultimately negates the individual in his own development.

So it is all the more important to remember the ideals of the independence movement, to help politics regain its place and to make rights tangible for as large a section of the population as possible. India is no stranger to human rights. In the last century, its implementation was seen as an essential element in the struggle against foreign power and a quasi-natural result of the realization of the self-government of the Indian people. A revival of this political initiative will only strengthen India, not weaken it.


[1] Freeman, Michael (2002): Human Rights: An Interdisciplinary Approach. Cambridge: Polity, p. 167

[2] The Encyclopaedia of the Indian National Congress (INC), Zaidi, A. M (ed.), Volume VII: 1916-20, New Delhi: S. Chand & Company, pp. 530-1

[3] INC: VII, loc. Cit.

[4] INC: VII, supra, p. 582

[5] INC: VII, supra, pp. 680-3.

[6] INC: X, supra, pp. 111-21

[7] INC: X, supra, pp. 180-183

[8] The text of the constitution refers below to: The Constitution of India (1991), P. M. Bakshi (ed.), New Delhi: Universal Book Traders

[9] The withdrawal of the right to vote was limited to "grounds of non-residence, unsoundness of mind, crime or corrupt or illegal practice."

[10] Lt. Indian Penal Code, No. 45 of 1860 (as modified up to November 1st, 1990), Government of India; Article 121 (Of Offences Against The State): "Whoever wages war against the Government of India, or attempts to wage such a war, or abets the waging of such war, shall be punished with death or imprisonment for life [...] . "

[11] Tandon, P. D. (1950): Presidential Address at the 56th Session of the INC, Nasik, September 21 & 22, in: INC: XIII, op. Cit., P. 519.

[12] O'Toole, Therese (2001): Secularizing the Sacred Cow: The Politics of Cow-Protection (unpublished article)

[13] In this regard, important criteria were "the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense".

[14] Conrad, Dieter (1999): "Constitutional Exceptional Law in India", in: Conrad, Dieter: Between the Traditions. Stuttgart: Franz Steiner, p. 11

[15] National Commission to Review the Working of the Constitution (2002), Report, Volume I, New Delhi, p. 65

[16] Sitaramayya, B.P. (1948): Presidential Address at the 55th Session of the INC, Jaipur, December 18, in: INC: XIII, op. Cit., P. 220

[17] Conrad (op. Cit., P. 4) took the declaration of August 20, 1917 as proof of his thesis: "increasing association of Indians in every branch of the administration and the gradual development self-governing institutions with a view to the progressive legislation realization of responsible government in India as an integral part of the British Empire "(in: Report on Indian Constitutional Reforms, 1918, Calcutta: Superintendent Government Printing, p. 1)

[18] Conrad, op. Cit., P. 36

[19] "Preventive Detention Act", 1950 (Act No. 4 of 1950). in: The National Security Act, 1980 along with other laws on Preventive Detention, Past and Present (1991), Vijay Malik (ed.), Lucknow: Eastern Book Company, p. 141 ). However, the arrest warrant could be renewed (Article 13).

[20] The withdrawal of the Chinese troops was announced on December 21, 1962. The Tashkent Agreement of January 1966 ended the war with Pakistan. The external state of emergency of 1971 lasted until March 27, 1977, while the Pakistani High Command signed the "Instrument of Surrender" on December 16, 1971. In: Austin, G. (2001): Working a Democratic Constitution, The Indian Experience, Oxford: University Press, pp. 63, 432.

[21] Under this law, the government can publicly declare "any association" to be "unlawful". A tribunal, led by a judge in the High Court, may consider this notice.

[22] Conrad, op. Cit., P. 34.

[23] Lt. Section 144 (power to issue in urgent cases of nuisance or apprehended danger), a District Magistrate can "direct any person to abstain from a certain act [...] if such Magistrate considers that such direction is likely to prevent [...] ] obstruction, [...] disturbance of the public tranquility, or a riot, [...]. " (BB Mitra on the Code of Criminal Procedure, 1973, Act 2 of 1972 (1978): (15th edition), by AR Biswas, Vol. 1, Calcutta: Debooks Eastern Law House, p. 616. See also the chapter "Use and misuse of the law against human rights defenders ", in: Amnesty International (2000): INDIA Persecuted for challenging injustice: Human Rights defenders in India, London, AI Index: ASA 20/08/00, pp. 12-20.

[24] For a description of the political circumstances see Austin, op. Cit., Pp. 314-27

[25] Austin, supra, p. 309; Sorabjee, S. (1977): The Emergency, Censorship and The Press in India, 1957-77, New Delhi: Central News Agency.

[26] Austin, op. Cit., P. 441.

[27] See Amnesty International India (2003): Special 'Security' Legislation and Human Right, Delhi, March.

[28] Austin, op. Cit., P. 67

[29] Austin, op. Cit., P. 63

[30] In contrast, India was always aware of the possibility of abuse of these laws. In the 1950s, the courts simply assumed that "a great safeguard against any abuse of power" would exist. In: Banerjee, D. N. (1960): Our Fundamental Rights, Their Nature and Extent (As Judicially Determined), Calcutta: The World Press Private, p. 145

[31] Banerjee, op. Cit., Pp. 260-1

[32] Banerjee, op. Cit., P. 260

[33] Conrad, op. Cit., P. 38

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