Posts Tagged ‘the Unlawful Activities (Prevention) Act’

Stop the witch-hunt of activists and journalists in Delhi and Kashmir and repeal the draconian UAPA

April 25, 2020

Barak Human Rights Protection Committee (BHRPC) endorses and forwards statement issued by Campaign Against State Repression calling upon the authorities to stop witch-hunt of activists and journalists in Delhi and Kashmir and repeal the draconian Unlaful Activities (Prevention) Act, 1967.

April 24th 2020: Over the last two weeks, across New Delhi, numerous activists and students have been targeted and harassed by the Delhi Police. Operating under an open-ended FIR, the police are attempting to accuse these persons, many of whom are engaged in providing indispensable relief work to workers and people bereft of food and other supplies due to the ill-planned COVID-19 induced lockdown, of instigating and executing the violence that engulfed North East Delhi in late February 2020. Three activists, Meeran Haidar and Safoora Zargar of Jamia Millia Islamia and Umar Khalid, former student of Jawaharlal Nehru University, have now been charged under several sections of the draconian Unlawful Activities Prevention Act (UAPA) and Indian Penal Code (IPC).

These charges must not be seen as isolation. Rather, they are continuation of the numerous methods by which the State has sought to crush the vibrant struggle for democratic rights that emerged from the opposition to the communally charged and anti-people Citizenship Amendment Act (CAA), National Registry of Citizens (NRC) and the National Population Register (NPR). It must be noted here that by accusing these persons of orchestrating the violence in North East Delhi, the State is in fact perpetrating an absolute travesty of justice.

That the violence which wracked North East Delhi was orchestrated is indisputable. However, its real perpetrators and planners not only remain free but also bask under the protection of the police and the administration. BJP leaders like Anurag Thakur, Kapil Mishra and Ragini Tiwari who have been recorded making inflammatory and communally charged speeches, urging violence against Muslims and all those opposing the CAA, NRC and NPR have not even been questioned. The numerous RSS and Bajrang Dal karyakartas involved in mobilising and leading the Hindutva mob that ransacked North East Delhi remain unprosecuted. The innumerable police personnel who viciously attacked Muslim youth and actively aided the Hindutva mob, continue to patrol the streets with impunity, and now brutalise the hapless and starving residents of Delhi in search of food and other rations.

While all this happens in the Capital, the situation in Kashmir is equally dire if not worse. While the lockdown in India commenced on 22nd March 2020, Kashmir has been under lockdown since the abrogation of Article 370 on 5th August 2019, causing immeasurable physical and mental harm to the Kashmiri people. The lack of mobility, scarcity of resources, restrictions on information, disruptions to work and education that people across the country face today has been a fixture in the lives of Kashmiris for the last 9 months. Furthermore, the country wide dearth of medical facilities is even more pronounced in the Kashmir Valley where the doctor to patient ratio is drastically below the country-wide average. Journalists like Masrat Zahra, Mushtaq Ganaie and Gowhar Geelani who have attempted to document the difficulties faced by the Kashmiri people, particularly during the spread of the COVID-19 virus, have faced the ire of the State and are charged under sections of UAPA and IPC. Notably, Peerzada Ashiq, a journalist who exposed the diversion of COVID-19 kits from Kashmir to Jammu has been similarly charged. It is a grave reflection of our times that even the performance of journalistic duties is deemed a terrorist act.

Targeting and marginalising Muslims on the Indian mainland and militarily repressing Kashmiris are nothing new for the Indian State. However, at a time when the material conditions of the broad masses have deteriorated severely and the State has adopted a Brahmanical Hindutva Fascist character, these actions must be viewed as part of the larger narrative of establishing the Hindu Rashtra. Efforts to degrade Muslims to second-class citizen status, attempted via the CAA, NRC and NPR, have continued even during the COVID-19 pandemic. The labeling of the Nizamuddin Markaz as part of a “Corona Jihad”, the boycott of Muslim essential service providers and the denial of medical care to Muslims, including pregnant Muslim women, are all part and parcel of these efforts. Mainstream media has drilled this communal narrative into the public discourse feeding prejudice and bigotry with sensationalist headlines and dubious reporting.

Today, a large section of the Indian masses face the dual risk of infection and starvation due to the BJP led Central Government’s refusal to bear responsibility to provide food and other rations during the lockdown. At such a time, when an eruption of popular anger against this complete disregard for the material conditions of the masses is possible, BJP led Central and State Governments and their lackeys in the mainstream media have made every effort to divert this anger towards the Muslim community. This narrative is being portrayed throughout the country in relation to COVID-19 and additionally in Delhi with regard to the violence in North East Delhi. This is a narrative that all democratic and progressive forces must condemn and combat.

Finally, it must be noted that the branding and targeting activists to demoralise and crush the movements they belong to is a tactic that the State is deploying with increasing frequency and intensity. Be it in the arrest of eleven academics, activists, lawyers, journalists and poets in the Elgaar Parishad-Bhima Koregaon case or the incarceration of Akhil Gogoi, Chingiz Khan, Ishrat Jahan, Dr. Kafeel Khan, Khalid Saifi, Sharjeel Imam and now several more, it is evident that the State is becoming more and more intolerant of any dissent or opposition. At such times, it is imperative that democratic and progressive voices speak out, else risk being silenced forever.

Campaign Against State Repression urges democratic and progressive organisations and individuals to condemn these charges against activists, journalists and students, demand that the arrested be released and the witch-hunt be ceased.

1. Immediately stop the witch-hunt of activists and journalists in Delhi and Kashmir under the draconian UAPA.
2. Immediate release of all arrested activists and political prisoners in fabricated cases particularly in light of the COVID-19 pandemic.
3. Immediate action (with restrain in light of COVID-19) against all the perpetrators of violence in North-East Delhi under the garb of cracking down on Anti-CAA protests.
4. Repeal of all draconian laws including UAPA, NSA and PSA, among others.

Campaign Against State Repression
(Organising Team: AISA, AISF, APCR, BCM, Bhim Army, Bigul Mazdoor Dasta, BSCEM, CEM, CRPP, CTF, Disha, DISSC, DSU, DTF, IAPL, IMK, Karnataka Janashakti, KYS, Lokpaksh, LSI, Mazdoor Adhikar Sangathan, Mazdoor Patrika, Mehnatkash Mahila Sangathan, Morcha Patrika, NAPM, NBS, NCHRO, Nowruz, NTUI, People’s Watch, Rihai Manch, Samajwadi Janparishad, Satyashodak Sangh, SFI, United Against Hate, WSS)

DIGEST OF INTERNATIONAL JURISPRUDENCE ON THE PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM

June 16, 2012

The non-state armed groups (insurgents, extremists or terrorists, whatever you may call them) need to be dealt with and contained because they violate rights of the people to live peacefully, they try to impose their will on the people and the state unlawfully and violently trampling the constitutionalism and the rule of law that are sine qua non for civilised human existence. It is the mandate of the state to maintain the reign of law and constitution and the writ of the government established by law along with ensuring security and safety of the person and property of the citizens. But when the state through its security forces and law enforcement agencies commits more atrocious acts than the acts which it professes it is fighting the difference between the non-state terrorists and the state gets blurred.

Since independence in 1947 as in colonial times India has a number of laws containing provisions that are termed by the liberal jurists and human rights defenders as draconian and repressive unparalleled in the democratic world. Such laws are held responsible for regular violations of human rights with impunity resulting in defeat of the rule of law and continuity of lawlessness breeding more terrorism and violence. Despite this reality there is also a shrill voice for more stringent laws in the country.

Even before the terrorist attack in Mumbai on 26 November, 2008 the demand for “stronger and tougher anti-terror laws” kept getting shriller and hasher and was being projected as panacea. It started after the present parliament repealed the Prevention of Terrorism Act, 2002 (POTA), although some provisions of POTA incompatible with human rights laws were incorporated into the Unlawful Activities (Prevention) Act, 1967 (UAPA) by way of amendment. The discourse of ‘tough’ laws is premised entirely on the misrepresentation of facts. It seems that the advocates of ‘tough’ laws want us to believe that there were no terrorist attacks in India when some of the “toughest” (read most draconian) laws in the civilised world were in force such as the Armed Forces (Special Power) Act, 1958 (AFSPA) and its other local variants; the National Security Act, 1980 (NSA); the Terrorist and Disruptive Activities Act, 1987 (TADA); POTA; UAPA and other state enactments. But the reality is that some of the worst terror offences were perpetrated when these “stronger and tougher anti-terror laws” were in force such as hijack of an airIndia flight from Kathmandu to Kandhahar, Red Fort attack, parliament attack etc.

New law becomes necessary when existing provisions are proved ineffective or counter effective. There are still many draconian and colonial provisions in our general criminal law composed of the Indian Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC) the Evidence Act, 1972 and others. Records of implementation and effective implementation of laws in India is very dismal due to many factors including corruption and inadequacy in both quantity and quality of man-power in the Criminal Justice Administration System and the inefficacy of some of the provisions of law themselves. With registration of First Information Report the justice administration machinery gets into motion. There are hundreds of thousands of cases where police does not register FIR without being greased. It has become the rule in some part of the country. There are also numerous cases of custodial torture and death for not paying gratification by the detainee/arrestee or their relatives to the police. When the state of the things is this it is ridiculous to think that “stronger and tougher anti-terror laws” will free us from crimes and criminals, let alone the question of terrorism.

Terrorism is the worst form of crime. It is just a matter of common sense that the people who love to kill and get killed would not have any fear of law howsoever “tough” and “strong” that law may be. Soon after the terrorist attack in Mumbai, Barak Human Rights Protection Committee (BHRPC) reminded that “it has been seen that in countering terrorism the state often succumbs to the design of the terrorists by failing to respect the human rights of the people. When this happens the terrorism triumphs because the state itself does the act of terror. More over, failure to respect human rights creates breeding ground of terrorism” in a statement issued to condemn the attack. Counter terror laws and practice violating human rights are used by the terrorists to justify their heinous acts and the state cites these terrorist acts to justify its acts of violations of human rights. In the process the ordinary human beings are just sandwiched between state and non state terror. These two forms of terrorism feed on each other and are same for general population.

Unfortunately the Indian State has succumbed to the terror design and gave them the triumph after the Mumbai attack. A bill has been passed amending the UAPA after the November attacks in Mumbai which violates international human rights treaties.

New amendments to anti-terror laws include: 1. Sweeping and overbroad definitions of “acts of terrorism” in violation of the principle of legality, 2. No clear and strict definition of what constitutes “membership” of a “terrorist gang or organization” also violate the principle, 3. Minimum period of detention of persons suspected to be involved in acts of terrorism extended to 30 days from 15 days and the maximum period of detention of such persons to 180 days from 90 days – already far beyond international standards, 4. Denial of bail to foreign nationals who may have entered the country in an unauthorised or illegal manner, except in very exceptional circumstances, also violates international human rights standard, 5. The requirement, in certain circumstances, of accused people to prove their innocence, is in violation of basic principle of universal criminal jurisprudence and natural justice.

Another new legislation has been passed constituting the National Investigating Agency which, inter alia, authorises special courts to close hearings to public without defining or limiting the grounds under which they may do so. This is also in violation of the due process principle.

While introducing the bill for amendment of the UAPA, the government took plea in the preamble of the bill that it is bound under several international instruments to combat terrorism specifically citing some select United Nations Security Council Resolutions such as1267 (1999), 1333 (2000), 1363 (2001), 1373 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822 (2008). But ignored the dictum of the resolution 1535 (2004) adopted by the Security Council at its 4936th meeting, on 26 March 2004 which reminded the “States that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law”. More over, there are many international instruments acceded or ratified by India which put the state under obligation to adhere to the human rights norms in all its activities including counter terrorism.

When POTA was repealed by the government most of the resolutions cited were in existence. Citation of these resolution and invoking international obligations are nothing but taking recourse to false plea. A look into the jurisprudence of the united nations and regional organizations on the protection of human rights while countering terrorism would show the hypocrisy of the Indian State so far its invocation of the international obligations is concerned.

In this background the digest on terror jurisprudence complied by the Office of the High Commissioner of Human Rights of the United Nations is a necessary tool for the human rights defenders, lawyers, academics, law-enforcement officials. law-makers, policy makers etc. The digest can be downloaded from here.