Op-ed: Draconian laws in India are not synonymous with constitutional democracy

Any mischievous police officer with a mala fide intent can misinterpret a conversation to send a person to the gallows, writes Amjed Javeed.

draconian laws

Reuters (September 11, 2020) stunned readers by reporting that `Indian state uses draconian law to detain those accused of killing cows’. The northern state has used the National Security Act (NSA), which allows for those deemed a threat to national security to be detained without charge for up to a year, almost 140 times in the first eight months of the year. “The NSA has been invoked in 139 cases across Uttar Pradesh, of which 76 have been against the slaughter of cows,” Awanish Awasthi, a top state official, said in a statement.

The agency said the couple was conspiring to create unrest during anti-CAA protests by coining seditious slogans and making graffiti at public places and highlighting the same on social and international media. Uttar Pradesh Chief Minister Yogi Adityanath has repeatedly urged use of the NSA to combat law and order issues in the state of more than 200 million people. The NSA, which Indian rights activists have described as draconian, is also frequently used in the contested region of Kashmir to detain people suspected of separatist activity.

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Several intellectuals (poets, historians, lawyers) were arrested under the NSA. Their sole offence was to air dissent against government policies regarding the treatment of minorities. Gautam Naulakha was arrested for simply attending a Kashmir conference, organized by Dr. Ghulam Nabi Fai, in the USA. Normally, intercepted phone conversations are used to get punished by Indian Kangroo courts, but the prosecution alleged that he talked in `codes’ and was linked to Naxalbaris and Kashmiri terrorists. The NSA is a handy law to send an innocent person to gallows.

The NSA had simply served as an excuse to humiliate the activists and hold them accountable in the name of public indecency. One could be declared a terrorist for graffiti, social posts, or shouting Pakistan Zindabad (long live Pakistan). NSA was brutally applied to those who protested military’s gross human rights violations. In 1992, Niloy Dutta, Parag Kumar Das and Ajit Bhuiyan were arrested in Guwahati under unspecified sections of the NSA.

The police translated the three words as ‘what have you done’. The Kashmiri equivalent for the police translation is ‘yeh kya korua’ which the lecturer did not use in his conversation

It was alleged that they were disrupting the process of peacebuilding in Assam and were involved in “anti-national” activities that threatened the sovereignty of the country. They were the founding members of Manab Adhikar Sangram Samity (MASS), which had been compiling evidence of military atrocities during `operation Rhino’. It had sent three groups fully equipped with audio and video gadgets to three zones of the slate to compile cases of army atrocities.

Braving severe restraints imposed by the army and civil authorities, these groups had succeeded in recording cases of arrest, torture, molestation, rape, killing and so on. With painstaking effort they compiled a comprehensive 65-page report enlisting the cases of army atrocities, which included 13 cases of death in army camps, seven cases of rape, as many as 120 cases of brutal torture, 139 cases of illegal detention and 63 cases of indiscriminate army raids in villages, unlawful public beatings and torture, all with specific dates, places and blow-by-blow accounts of the incidents, fully substantiated by physical evidence.

SAR Geelani’s case

Isn’t it eerie that the penal law (Prevention of Terrorism Act) of the world’s greatest democracy attaches evidentiary value to the telephonic, telegraphic and internet conversations? Any mischievous police officer with a mala fide intent can misinterpret a conversation to send a person to the gallows.

The brutality of this came into limelight when Professor Geelani was awarded the death penalty by the ‘fast-track’ court on the basis of the wrong translation of the three words ‘Delhi kya korua’, ‘what has happened in New Delhi’, picked up from his one-minute conversation with his brother.

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The police translated the three words as ‘what have you done’. The Kashmiri equivalent for the police translation is ‘yeh kya korua’ which the lecturer did not use in his conversation.

By the time, the court acquitted the innocent professor; he had already suffered two years of solitary confinement in the death cell. Interestingly, the prosecution’s misinterpreted transcript lasted for two minutes while the conversation tape took only one-minute’s duration. The professor was subjected to torture and he did not survive long after his acquittal. He owes his acquittal to the fine pleading by his lawyer Ram Jeth Malani.

The conversation between SAR Geelani and his brother Shah Faisal was in Kashmiri. Not to speak of linguistic mastery, the person intercepting the conversation on December 13 did not know a single word of Kashmiri language. The next day, the Special Cell brought in an ‘expert’ to translate the conversation.

But the Special cell’s expert was a person, who only knew tidbits of the Kashmiri language, not intonations or linguistic nuances.  He was educated only up till the sixth grade.  He could only read and speak Hindi, and could not write it. As such, his spoken translation of the conversation was converted into a written text by another person.

The speedy-trial court had earlier convicted the accused persons to death (and life imprisonment) on various counts including ‘conspiracy to wage war’

It is this translation that was used as key evidence to charge Geelani’… ‘It appears unreasonable even for the most fertile imagination to stretch the meaning of the words “what have you done in Delhi” as a reference to participation in the December 13 attack on the Indian parliament.

The background to the conversation is that the lecturer’s brother, as instructed by their mother, wanted to know why Geelani had cancelled his plans to visit Baramullah (IHK) during the Eid Holidays _ “What has happened between him (lecturer) and his wife in New Delhi”.  Mrs. Geelani had complained about her mother-in-law that her husband is did not want to visit the native Baramullah on Eid holidays’.

India’s insinuations proved wrong as the Delhi High Court, upon appeal, honorably acquitted the main accused, Professor SAR Geelani, a lecturer of Arabic in Delhi College and his cousin Shaukat Guru. Nexus with Pakistan remain unproven. The speedy-trial court had earlier convicted the accused persons to death (and life imprisonment) on various counts including ‘conspiracy to wage war’. After his acquittal, Geelani suffered an attempt on his life by ‘unknown armed assailants’.

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Corollaries to Parliament attack

The much-touted Parliament attack case was erected on a very fragile basis: (a) No public inquiry was held to unearth the truth. The government did not rebut the allegation that Afzal, another accused in the case, was a freedom fighter who had surrendered to the Indian authorities. He was in regular contact with the Indian security forces. (b) In the absence of any solid evidence against professor Geelani, the Indian government used the transcript of Geelani’s intercepted conversation to frame a death-sentence charge against him.

Afzal Guru’s hanging

He was convicted in the Parliament House attack case. On October 21, 2004, in New Delhi’s Tihar jail, he wrote a letter to his lawyer, Sushil Kumar, a senior advocate in the Supreme Court. In a letter addressed to his lawyer, he had alleged that he had to confess under duress. Guru blamed that Davinder Singh tortured him to confess.

One of Davinder Singh’s “torture inspectors” was Shanti Singh. He “electrified him naked for three hours, and made him drink water while giving electric shocks through telephone instrument” Guru claimed that the Designated Court (the trial court) had sentenced him to death based on the police version of the case and under the influence of the media.

If so, why did the investigation into Afzal Guru’s role in the Parliament House attack not consider the plausible role Davinder Singh allegedly played in the conspiracy?

Guru regretted that the designated court had not provided him an opportunity to tell the “real story”. He hoped Supreme Court to look at the “reality through which he had passed”, but it was in vain. He argued that his incrimination was a ploy of the Special Task Force. “Special Police is definitely the part of this game because they forced me to remain silent. I hope my forced silence will be heard and justice will prevail. I once again pay heart-felt thanks to your good self for defending my case. May truth prevails,” he prayed in the letter.

Guru’s story is corroborated in Davinder Singh’s subsequent interview in 2006. A journalist Parvaiz Bukhari recorded the interview but could not publish it in the magazine. It was later published in the book, The Hanging of Afzal Guru and the Strange Case of the Attack on the Indian Parliament, with an introduction by Arundhati Roy.

In this interview, Davinder Singh, without compunction, confessed torturing Guru during interrogation in his camp at Humhama (Budgam district) for several days. He admitted that he never recorded Afzal Guru’s arrest.

Read more: Complete shut down in IOK on death anniversary of Afzal Guru

Davinder Singh’s 2006 interview appears to have given a clean chit to Afzal Guru. Davinder Singh told his interviewer thus: “His (Afzal Guru’s) description of torture at my camp is true. I had a reputation for torture, interrogation and breaking suspects. If anybody came out of my interrogation clean, nobody would ever touch him again. He would be considered clean for good by the whole department.”

But the fact remains that Davinder Singh did admit that he could not break Afzal Guru and that he sent him back after his torture wounds healed. If so, why did the investigation into Afzal Guru’s role in the Parliament House attack not consider the plausible role Davinder Singh allegedly played in the conspiracy? There are no answers. If Davinder Singh’s boast in that interview was correct, Afzal Guru could well have been an innocent, as there are no answers to why he could not break Afzal Guru when he was in his custody.

Davinder Singh’s revelations reflect Afzal Guru was innocent. He was hanged on the trumped-up charges, hyped by media.

Is torture legal in India?

Since 14 October 1997, India has been a signatory to the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. Yet it has not yet ratified the convention.

India’s draconian laws, including Section 4 of the Armed Forces Special Powers Act, 1990, as pointed out in international reports, allows any personnel operating under the law to use lethal force not only in cases of self-defense but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”. In India, torture is legal.

The severity of torture meted out by the Indian security forces in Jammu and Kashmir is the main reason for the appalling number of deaths in custody (Amnesty, Torture and Deaths in Custody in Jammu and Kashmir

Victoria Schofield graphically depicts the behavior of Indian forces in Kashmir in Chapter 15: Hearts and minds of her 1996 book, Kashmir in the Crossfire. Her observations are still relevant today. A few extracts are in order.

“…Initially there was tremendous reluctance to acknowledge or publicize any of the alleged excesses, indiscriminate killing or arbitrary disappearances noted by the human rights groups for fear of humiliating and hence possibly demoralizing the soldiers. …As noted by the Report of the International Commission of Jurists after their visit in August 1993…`The jurists, however, also noted that the authorities had been ‘tardy in instituting proceedings against governmental personnel who commit abuses against the people and have created an aura of impunity surrounding officials who violate human rights.’

In conclusion, they stated: ‘…There is however a long way to go, to overcome indiscipline and misconduct of the security forces, particularly the BSF, the persistent and regular use of torture in interrogation and the practice of extra–judicial execution’. (Human Rights in Kashmir, Report of a Mission, International Commission of Jurists, 1994).

‘Since the insurgency began, torture of the militants and suspected militants had been a feature of Indian counter-insurgency tactics as a means of extracting information, coercing confessions and punishment. According to Amnesty International, ‘the brutality of torture in Jammu and Kashmir defies belief. It has left people mutilated and disabled for life. The severity of torture meted out by the Indian security forces in Jammu and Kashmir is the main reason for the appalling number of deaths in custody (Amnesty, Torture and Deaths in Custody in Jammu and Kashmir, March 1995, p. 2).

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The torture generally includes electric shocks, beatings, and the use of a heavy roller on leg muscles, which can result in extensive muscles damage, leading to acute renal failure. Other forms of inhuman treatment on various parts of the body, including sexual molestation also have been reported. According to one victim, quoted by Amnesty,” You always know in advance about the “current” because they send in the barber to shave you from head to foot.

This is supposed to facilitate the flow of electricity. After he finishes shaving you, he hands you a cup of water to drink and then they attach the electrodes (The Observer London 13 November 1994, as quoted in Amnesty, Torture and Death in Custody January 1995, p. 19). Other common methods described by the U.S. Human Rights Agency, Asia Watch, include suspension by the hands or feet, stretching the legs apart and burning the skin with a clothes iron or other heated object. Victims have also been kicked and stamped on security forces wearing spiked boots.’ (Asia Watch, The Human Rights in Kashmir: A Pattern of Impunity’, Rawalpindi, June 1993, p. 58).”

“Sixty-three interrogation centres where torture is routinely carried out are believed to exist in Jammu and Kashmir, mostly run by the BSF and the CRPF. …In its December 1993 report Amnesty produced information about the appearance in Kashmir. In its response, the Indian government answered many of the allegations contained in Amnesty’s report and supplied details on some of those listed as missing… Another report by Amnesty in January 1995 regarding 705 people who, since 1990, had died in custody as a result of torture, shooting, or medical neglect, produced yet another rebuttal from the Indian government. Amnesty however, described their response as `evasive and misleading’. (Analysis of the Government of India’s Response to Amnesty International’s Report on Torture and Deaths in Custody in Jammu and Kashmir, March 1995).

These laws, inter alia, include Armed Forces’ Special Powers Act, Public Safety Act, Unlawful Activities Prevention Act, and National Investigation Agency (NIA) Act

Several other reports document torture, custodial killings, and molestation in India. One such report is the United Nations High Commissioner for Human Rights, June 14 “Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit–Baltistan” by the Office of the United Nations High Commissioner for Human Rights (OHCHR). Its 49 pages have 388 footnotes, citing, mostly, Indian records such as official statements in Parliament, while refusing the UN’s repeated requests for on-site inspection.

Major recommendations of the report include: (1) `UN Human Rights Council to consider establishing a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.”(2) `It is essential the Indian authorities take immediate and effective steps to avoid a repetition of the numerous examples of excessive use of force by security forces in Kashmir’. (3) Repeal of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) Jammu and Kashmir Public Safety Act 1978 “urgently” and also “immediately remove the requirement for prior central government permission to prosecute security forces personnel accused of human rights violations in civilian courts.’

Read more: India’s claims on Kashmir rest on a dubious legal instrument

The report says “Impunity for human rights violations and lack of access to justice are key human rights challenges in the state of Jammu and Kashmir, noting that AFSPA and Jammu and Kashmir Public Safety Act 1978 (PSA) have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations”.

Other laws to declare anyone a `terrorist’ or a `traitor’

Besides the NSA, India has a slew of other draconian laws under which it carries on its reign of terror in `disturbed’ and peaceful states. These laws, inter alia, include Armed Forces’ Special Powers Act, Public Safety Act, Unlawful Activities Prevention Act, and National Investigation Agency (NIA) Act.

Local and international human-rights organizations have condemned these laws. They have documented detention of children, older people and the disabled in custody incognito without trial. Amnesty documented several cases of custodial deaths, rapes, and arson.

Basic architecture of the UAPA and POTA is the same. The provisions for arrest under the amended UAPA were as vague as they were in POTA

In a bid to enhance the jurisdiction of the anti-terror-probe agency NIA, the legislature has amended (July 24, 2019) the National Investigation Agency Act and the Unlawful Activities (Prevention) Act. Now, they are empowered to declare anyone a `terrorist’, at home or abroad. Even a telephonic conversation with a dubious fund-giver could be a ground for being so declared. The Naxalbaris, pro-Khalistan activists and Kashmiris are the obvious targets.

Licentiate Indian army

An Indian-army major Leetul Gogoi was caught red-handed in the company of a teenage paramour in a Srinagar hotel. He was let off with a slap on wrist and a loss of six months’ seniority. He was charged with `fraternizing’ with a teenager Kashmiri woman on Facebook under a fake identity. The Indian army-chief had earlier awarded him a commendation certificate for driving a jeep in Srinagar streets with a Kashmiri protester tied to his jeep-front.

The Statesman (editorial April 2, 2019) commented: (a)`The Army would do well to bring its considerable expertise in psychiatric medicine to bear to determine possible linkages in the deviant behavior of the officer who gained worldwide notoriety for the “human shield” incident in Srinagar in 2017, and the same man flouting prescribed regulations by entering into a questionable relationship with a young Kashmiri woman a year ago’.

(b) It is `a blatant violation of basic human rights and the military’s strict code of conduct that encouraged Major Letul Gogoi to play the Casanova role: at no stage has there been any suggestion of the officer being “honey trapped”’.

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(c) Local police registered no FIR. (d) `The “commendation” of Gogoi willy-nilly sent out the message that dissent would be crushed with force _ the origin of the trouble was a protest during a by-poll to the Lok Sabha from Srinagar. Gen Bipin Rawat has frequently suggested there are military solutions to most disputes, including electoral ones. By commending what Major Gogoi did the Chief of the Army Staff voted for intolerance’. Gogoi’s crimes coupled with Indian army-chief’s nods explain why Kashmiri youth are being radicalized.

National Safety Act

It was employed to arbitrarily arrest 160 Muslim men in Uttar Pradesh with connivance of Hindu monk chief minister Yogi Adityanath.

Unlawful Activities (Prevention) Act

In August, the (UAPA) was used to arrest five human rights activists, by accusing them of being “Naxals” operating against the state. Well-known persons including poets and teachers were arrested simply for showing sympathy for the oppressed Naxalbaris. In 2000, the NSA was used in Uttarakhand to target two civil rights activists Jasodhara and Abhijit Dasgupta, who ran the NGO, Sahayog.

They had published a booklet, AIDS aur Hum, promoting sexual health. For nearly a month before the offices of Sahayog were ransacked, both staff and trainees at their field office roughed up, and leading activists arrested, the local media in the region had been carrying on a campaign against the group, targeting in particular the booklet.

One of the great attractions of patriotism…we are able, vicariously, to bully and cheat. … With a feeling that we are profoundly virtuous (Aldous Huxley)

After the November 26, 2008 terrorist attacks in Mumbai, the UAPA, 1967 was amended as to serve as the primary anti-terrorist law, just four years of eye-wash repeal of the Prevention of Terrorism Act. Basic architecture of the UAPA and POTA is the same. The provisions for arrest under the amended UAPA were as vague as they were in POTA.

The 2008 UAPA Amendment extends the maximum period of pre-charge detention to 180 days. The UAPA has been grossly misused. Delhi University professor G N Saibaba, and his comrades, were arrested on the allegation of being Naxals. The prosecution charged the professor of `waging war against the country and supporting the ideology of a banned organization, CPI (Maoist)’.

No arms and ammunition could be recovered from the hapless professor. Notable dalits (oppressed) activists, including Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson were arrested under the UAPA, for being associated with Maoist “Elgar Parishad”. They were accused of being Maoists or Naxals who delivered inflammatory.

Public Safety Act

It is being used in Kashmir to arrest innocent people dubbed as “suspected militants”, following Burhan Wani’s death in 2016. Most of the FIRs are “open FIRs.” The police append the words “and others” to arrest anyone, not named in a FIR.

TADA & POTA with embedded persecution

The POTA was preceded by the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA). By mid-1994, 76,166 people had been arrested under TADA but less than 4% were convicted. There was public outcry on the arrest of 28 Dalit and Adivasi (tribal) agricultural workers in Uttar Pradesh under POTA) in February 2003. The arrestees were dubbed `Naxalites’.  Some of those arrested were later shot in a fake “encounter” with security forces.

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Persecution is inbuilt in POTA’s in predecessor. Only one per cent of 76,000 people arrested under TADA were convicted. POTA was used to arrest landless or land-poor Dalits and Adivasis accused of being Naxalites, Kashmiris fighting against oppressive Indian rule or Muslims accused of working in tandem with Pakistan’s Inter-Services Intelligence.

Inferences: Draconian laws are enforced under veneer of patriotism. It is rightly said ` Patriotism is the last refuge of a scoundrel’ (Samuel Johnson). “Patriotism is your conviction that this country is superior to all other countries because you were born in it” (George Bernard Shaw). “Guard against the impostures of pretended patriotism’ (George Washington).

“When a whole nation is roaring patriotism at the top of its voice, I am fain to explore the cleanness of its hands and purity of its heart (Ralph Waldo Emerson).” “The feeling of patriotism – It is an immoral feeling because, …each man under the influence of patriotism … commits actions contrary to his reason and conscience …To abolish war it is necessary to abolish patriotism” (Leo Tolstoy).

Read more: India: Emerging Hub Of Terror under Hindutva and BJP

“One of the great attractions of patriotism…we are able, vicariously, to bully and cheat. … With a feeling that we are profoundly virtuous (Aldous Huxley).” “It is lamentable, that to be a good patriot one must become the enemy of the rest of mankind (Voltaire).”

India must understand that draconian laws are incompatible with a constitutional democracy.

Mr. Amjed Jaaved has been writing free-lance for over five decades. He has served federal and provincial governments of Pakistan for 39 years. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is the author of eight e-books including The Myth of Accession. He knows many languages including French and Arabic. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.


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