Posts Tagged ‘UAPA’

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 It started after the present parliament repealed the Prevention of Terrorism Act, 2002 (POTA), although some provisions of POTA incompatible with human rights laws were incorporated into the Unlawful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.

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Submission of BHRPC to the UN Special Rapporteur on summary executions

March 28, 2012

The few representative cases submitted here clearly show the abysmal state of lawlessness which people live in.  Life here is virtually “solitary, poor, nasty, brutish and short” (as was claimed by Thomas Hobbes in his The Leviathan) for some people, particularly those who belong to the vulnerable groups such as minority communities, working class.

The alleged perpetrators in some of the cases belong to the armed forces ofIndiawhether regular military or para-military operating invariably under the Armed Forces (Special Power) Act, 1958. The Act empowers members of the armed forces to use lethal force against civilians even to the causing of death on mere suspicion that they may act in breach of any law or any order along with the power to enter into any doweling places by breaking their entrance and search and seize anything without warrant and arrest any person without warrant and keep the arrestees in custody for unspecified times without charge in the valley along with the rest of Assam and parts of some other North East Indian states and Jammu and Kashmir. The AFSPA also places the army above the law, constitution and judiciary for acts claimed to be done under the Act by barring institution of prosecution, suits or any judicial procedure in any court inIndia.

Some other cases of extra-judicial execution noted above were perpetrated by the state police who operate under a state version of the AFSPA titled the Assam Disturbed Areas Act, 1955. Along with these special security laws with draconian provisions and laws like the Unlawful Activities Prevention Act, the regular law that governs the policing in Assam is the Assam Police Act, 2007, which was enacted apparently to comply with the requirements of the directives issued by the Supreme Court of India in Prakash Singh and Others vs. Union of India (also known as the police reform case), in essence conform more with the colonial-era Police Act of 1861. The colonial police law was not aimed to provide democratic policing. It meant to create a repressive force subservient to ruling class and devoid of any accountability to the law and people.

After decades of public pressure, lack of political will and continued poor policing, a police reform process is finally underway inIndiaas the apex court stepped in. On 22 September 2006, the Supreme Court delivered a historic judgment in Prakash Singh and Others vs. Union of India and Others instructing central and state governments to comply with a set of seven directives laying down practical mechanisms to kick-start reform.

The directives were aimed to ensure functional autonomy of the police and their accountability to the law. For ensuring functional autonomy the Supreme Court directed 1. to establish a State Security Commission to i. ensure that the state government does not exercise unwarranted influence or pressure on the police; lay down broad policy guidelines aimed at promoting efficient, effective, responsive and accountable policing, in accordance with the law; give directions for the performance of the preventive tasks and service oriented functions of the police; evaluate the performance of the state police and prepare a report on police performance to be placed before the state legislature.

2. The second directive was aimed at ensuring fair selection of Director General of Police (DGP) and guarantee of his tenure.

3. Security of tenure is similarly important for other police officers on operational duties in the field. In order to help them withstand undue political interference, have time to properly understand the needs of their jurisdictions and do justice to their jobs, the Supreme Court provides for a minimum tenure of two years for the following categories of officers:           – Inspector General of Police (in charge of a Zone)

– Deputy Inspector General of Police (in charge of a Range)

– Superintendent of Police (in charge of a District)

– Station House Officer (in charge of a Police Station)

4. To counter the prevailing practice of subjective appointments, transfers and promotions, the Supreme Court provides for the creation of a Police Establishment Board. In effect, the Board brings these crucial service related matters largely under police control. Notably, a trend in international best practice is that government has a role in appointing and managing senior police leadership, but service related matters of other ranks remain internal matters. Experience inIndiashows that this statutory demarcation is absolutely required in order to decrease corruption and undue patronage, given the prevailing illegitimate political interference in decisions regarding police appointments, transfers and promotions.

5. the Supreme Court directed the Central Government to establish a National Security Commission for Central Police Organisations and Central Cara-Military Forces.

For ensuring accountability the Supreme Court directed the governments to set up:

6. Police Complaints Authority and

7. To separate investigation and law and order function of police.

The Commonwealth Initiative for Human Rights (CHRI), a regional human rights organization which was also one of the interveners in the Prakash Shingh case, after an analysis of the newly enacted Assam Police Act says that the Act only partially complies with the directives:

State Security Commission was established but the composition is not as per the Supreme Court directive. The Act has also weakened the mandate of the commission and has made its recommendation non-binding.

The second directive regarding selection process of the DGP and guarantee of his tenure not complied.

Directive regarding guarantee of tenure of the police officers on the field are also not complied. Only one year of tenure is guaranteed to the Superintendent of Police in charge of a district and Officer-in-Charge of a police station with vague grounds for premature removal.

Police Establishment Board was set up but the mandate was not adhered to. DGP has also been given the power to transfer any officer up to the rank of Inspector “as deemed appropriate to meet any contingency”, contrary to the directive.

The Central Government did not establish National Security Commission in utter contempt of the judgment.

The Assam Police Act, 2007 establishes Police Accountability Commission to enquire into public complaints supported by sworn statement against the police personnel for serious misconduct and perform such other functions. But the Chairperson and members of the Commission are appointed directly by the government. This can, at best, be called partial compliance.

Half hearted attempts can also be seen regarding separation of investigation from law and order function of the police. Special Crime Investigation Unit has been set up in urban police stations but there is no specific section on separation of between law and order and crime investigation.

This deliberate attempt to bypass the Supreme Court directives prompted the petitioner in the case formerAssamdirector-general of police Prakash Singh to describe the Assam Police Act, 2007, as a fraud on the people of the state. He was speaking at a seminar  jointly organised by the commission and the Assam State Legal Services Authority at theAssamAdministrativeStaffCollege, Guwahati. According to him, the government had violated the letter and spirit of the apex court guidelines by passing the act without conforming to these guidelines.

The Act needs drastic amendment to be brought in conformity with the Supreme Court guidelines and to be compatible with International Human Rights Standards. More importantly the role of the police needs to be redefined “taking into account the emerging challenges of policing and security of the State, the imperatives of good governance, and respect for human rights”.

The cases cited also highlight another huge challenge to the civil and political rights inAssamwhich is non-adherence and non-implementation of laws and other instruments that are meant to protect such rights. The Supreme Court guidelines in DK Basu case, and NHRPC guidelines regarding arrest, custodial deaths have the potential to drastically reduce the number of extra-judicial executions if implemented properly. The DK Basu guidelines are only implemented in papers. In rural police stations the guidelines are not even hung in a language eligible to the public at a conspicuous place.

It may be noted that in many of the cases mentioned no magisterial inquiry was conducted in contravention of the statutory mandate of section 176 of the Code of Criminal Procedure, 1973. In the cases where such inquiries are conducted the magistrates employed were not judicial ones as is mandate of the law. Although even the executive magistrates when found in their inquiries the guilt of the accused police personnel established beyond doubt, neither prosecution has been started nor has any compensation been provided to the kin of the deceased. Apart from legal immunity provided by security legislations such as the Armed Forces (Special Power) Act, 1958, the Assam Disturbed Areas Act, 1955 there is a regime of de facto impunity guaranteed to the violators which is responsible for the increase of the cases of extrajudicial killings.

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BHRPC submits cases of extra-judicial executions in Barak valley to the Special Rapporteur

March 28, 2012

Guwahati, 28 March: “Ours is a case of doing works of police by the army and using the regular state police by ruling politicians as their personal army” said Waliullah Ahmed Laskar during his oral presentation at the North Eastern regional briefing to the United Nations special rapporteur on extrajudicial, summary or arbitrary executions held today here at Ashoka Brahmaputra hotel. Mr. Laskar, director of law and legal affairs of the Barak Human Rights Protection Committee (BHRPC) added, “although there are no terrorist activities and any home grown insurgent groups in Barak valley that can pose a threat to the national integrity and security the Armed Forces (Special Power) Act, 1958 is in force in the valley along with the rest of Assam and parts of some other North East Indian states and Jammu and Kashmir. The Act empowers the army personnel to use lethal force against civilians even to the causing of death on mere suspicion that they may act in breach of any law or any order along with the power to enter into any doweling places by breaking their entrance and search and seize anything without warrant and arrest any person without warrant and keep the arrestees in custody for unspecified times without charge. The AFSPA also places the army above the law, constitution and judiciary for acts claimed to be done under the Act by barring institution of prosecution, suits or any judicial procedure in any court inIndia.” He further added that the state police also operate under a similar draconian law called the Assam Disturbed Areas Act, 1955 and showed how the Assam Police Act, 2007 is a fraud on the people as well as on the Supreme Court of India in so far as it claims to conform with requirements of directives issued by the supreme court in Prakash Singh and others Vs. Union of India and others.

He also submitted a report to the special rapporteur professor Christof Heyns, who is on a fact-finding mission inIndiafrom 19 March to 30 March, containing cases of extra-judicial or arbitrary killing of innocent people both by the state police and armed forces of the central government. Cases that were submitted include 1. killing of one Islamul Hoque Choudhury (of Sonai, Cachar) by police because he became to threat to them as he witnessed how they tortured another person to death, 2 extra-judicial killing of Hashmat Ali (Kalain, Cachar) by police after being bribed by another person to teach him a lesson, 3. death of Motahir Ali (Kalain, Cachar) caused by torture in police custody as his family could not pay the amount of bribe demanded by the police for his release, 4. death of Mr. Moyfor Raja (Katlicherra, Hailakandi) in police custody due to torture, 5. fake encounter killing of Jamir Uddin (Katlicherra, Hailakandi) by central reserve police force personnel, 6. death of Iskandar Ali (Dholai, Cachar) caused by indiscriminate firing of  CRF personnel at a market place, 7. killing of a car driver by police apparently for speeding and 8. extra-judicial execution of Iqbal Hussain Laskar (Algapur, Hailakandi) by army after they picked him up and some other cases.

The BHRPC urged the special rapporteur to recommend to the authorities inIndiato 1. to repeal the Armed Forces (Special Power) Act, 1958; 2. to repeal the Assam Disturbed Areas Act, 1955; 3. to make the Unlawful Activities Prevention Act, 1967 compatible with international human rights standards by amending the Act; 4. to bring the Assam Police Act, 2007 in conformity with the directives of the Supreme Court of India through amendment; 5. to amend the Protection of Human Rights Act, 1993 to extend the jurisdiction of both the state and national human rights commissions to conduct independent inquiries into cases of alleged human rights violations by the armed forces and to lengthen the limitation period of one year to five years; 6. to constitute an independent commission headed by a retired chief justice of a high court or the supreme eligible to be appointed as the chief justice of India with adequate numbers of members from the civil society to conduct time-bound inquiries into all allegations of extrajudicial, summary or arbitrary executions leading to the initiation of prosecution and provision of adequate reparation; 7. to constitute special courts to conduct trial of all cases of extrajudicial, summary or arbitrary executions under direct monitoring of the Supreme Court of India; and others.

At the meet presided over by Justice W A Shishak, former chief justice of the Chhattisgarh high court, Mr Babloo Loitongbam of Human Rights Alert (Manipur), Ms. Bubumoni Goswami, chairperson of the Manabadhikar Sangram Samiti (MASS, Assam), Ms Rosanna Lyngdoh of the Impulse NGO Network (Mehgalaya), Taring Mama of the Association for Civil Rights (Arunachal Pradesh), Neingulo Krome of the Naga Peoples Movement for Human Rights (Nagaland), Anthony Debbarma of the Borok Peoples Human Rights Organisation (Tripura) and others also made both oral and written submissions.

The special rapporteur who is accompanied by the UN human rights officer Irina Tabirta and other staff said in his concluding remark that he was thankful to the government of India for extending invitation to his mandate to the country and he assured the participants that he would take up the issues raised here with the government of India and is going to have a press conference in Delhi on 30 March where he would share his preliminary recommendations. He is expected to submit his report on the situation of extra-judicial execution inIndiato the UN human rights council and the General Assembly of the UN at the end of this year.  (Submission of BHRPC to the SR on Summary Execution)

Neharul Ahmed Mazumder

Secretary General,

Barak Human Rights Protection Committee