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Op-ed: Shiny face of Indian democracy disfigured by repressive laws

UN’s high commissioner for human rights has expressed 'concern over restrictions on non-governmental organizations, arrests of activists and implications of citizenship amendment act'.

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In yet another damning report, UN’s high commissioner for human rights, Michelle Bachelet expressed ‘concern over restrictions on non-governmental organizations, arrests of activists and implications of citizenship amendment act’.

The UN high commissioner for human rights `appealed to the government of India to safeguard the rights of human rights defenders and NGOs, and their ability to carry out their crucial work on behalf of the many groups they represent’. She also ‘expressed regret at the tightening of space for human rights NGOs in particular, including the application of vaguely worded laws that constrain NGOs’ activities and restrict foreign funding’.

Read more: UN rights chief ‘dismayed’ at India arrests, NGO restrictions

Besides, she `cited as worrying the use of the Foreign Contribution Regulation Act (FCRA), on which a number of UN human rights bodies have also expressed concern, is vaguely worded and overbroad in its objective’. The act prohibits `receipt of foreign funds for any activities prejudicial to the public interest’. But, it leaves a vague definition of the `public interest’ and `prejudicial’ to the wild imagination of police officers.

India was bound to explain to the committee that it was invoking national security and protection of public order as a reason to restrict the right to freedom of association

The act, which was adopted in 2010 and was amended last month, has had a detrimental impact on the right to freedom of association and expression of human rights. Amnesty International was compelled to close its offices in India after its bank accounts were frozen over alleged violation of the FCRA. Bachelet noted, `The FCRA has been invoked over the years to justify an array of highly intrusive measures, ranging from official raids on NGO offices and freezing of bank accounts, to suspension or cancellation of registration, including civil society organizations that have engaged with UN human rights bodies. ‘Constructive criticism is the lifeblood of democracy. Even if the authorities find it uncomfortable, it should never be criminalized or outlawed in this way.’

Read more: Pakistan urges UN to provide security to Amnesty International India employees

India keeps UN in the dark

The UN human rights committee oversees implementation of the International Covenant on Civil and Political Rights to which India is party. The committee found that India did not  `show the specific nature of the threat or risks posed, and limit its responses to those necessary and proportionate to address such threat or risks’ . India was bound to explain to the committee that it was invoking `national security and protection of public order as a reason to restrict the right to freedom of association’.

India claims to be the “world’s greatest democracy”. But, the shiny face of democracy has been disfigured by repressive Indian laws

The committee noted `more than 1,500 people have reportedly been arrested in relation to the [CAA] protests, with many charged under the Unlawful Activities Prevention Act – a law which has also been widely criticized for its lack of conformity with international human rights standards’.

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

Bachelet drew attention to the arrest and continued detention  of  the 83-year-old Catholic priest Stan Swamy, a long-standing activist engaged in defending the rights of marginalized groups, despite his poor health. She urged India `to ensure that no one else is detained for exercising their rights to freedom of expression and peaceful assembly, and to do its utmost, in law and policy, to protect India’s robust civil society’.

A bird’s eye view of India’s anti-human laws

India claims to be the “world’s greatest democracy”. But, the shiny face of democracy has been disfigured by repressive Indian laws like: (1) Indian Armed Forces (Special Powers) Act, (2) Terrorist-Affected Areas (Special Courts) Act, (3) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), and (2) Prevention of Terrorism Act, 2002 (POTA).

The POTA is just old wine in a new bottle

Read more: ‘Kattar Hindu Ekta’: Persecution of Muslims has defaced ugly face of secular India

The aforementioned laws clothed police and security/armed forces with emergency powers without explicitly abrogating people’s fundamental rights under the Indian Constitution (a fundamental right cannot be usurped or altered).

Prevention of Terrorism Act (2002)

POTA is successor to TADA. The TADA remained in force between 1985 and 1995 (modified in 1987) under the background of the Punjab insurgency and was applied to all over India. The act had a sunset provision for lapsing after two years post-commencement, which it did on 24 May 1987. The POTA is just old wine in a new bottle.  It does not repeal fake cases under TADA. Indian media termed POTA as ‘draconian’. Verily so as penalties under this law are akin to those stipulated in Draco’s code of 610 BC to forestall future revolts by common men.  The code provided death penalty for even trivial offences like stealing an apple, or an earthenware utensil.

The POTA attaches evidentiary value to the telephonic, telegraphic and internet conversations.  The brutality of the law was brought into limelight when S. A. R Geelani, a Kashmir lecturer in Delhi University was implicated for attack on the Indian parliament (December 13).

Read more: FO slams India for state terrorism in occupied Kashmir

POTA was employed to frame cases against several other Kashmiri leaders _ Yaseen Malik, Syed Ali Geelani et al.  Despite his frail health (ailing kidney, heart with right ear subjected to micro-surgery), Malik was arrested on March 25 under POTA for receiving ISI’s money when he was addressing a press conference at the Hurriyat office. The court acquitted him with observation that there is not an iota of believable evidence against him.

Syed Geelani and his journalist son-in-law, Iftikhar Gilani also were detained under POTA.  Funny charges on senior Geelani included: (1) “Being a member of Jamaat-e-Islami, he criticised US war against Afghanistan, and described himself as Pakistani”.

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Iftekhar Geelani was detained for violation of Official Secrecy Act for possessing information about Indian troops’ movement of pre-1996 period.  The alleged information was available on the internet. Having failed to make a case against him, police charged him under the Pornographic Act.

POTA features

In what follows, we would review significant features of POTA. It usurps Constitution-of- India safeguards for fundamental rights (part 3, articles 13-35). The rights include “life and liberty of the person” (article 21) and “freedom of expression” (article 19). The POTA also violates article 21 which provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

TADA was meant to suppress the Sikhs’ freedom movement.  POTA is intended to stifle Kashmiris’ freedom movement.  Due to heavy opposition from the NHRC, human rights organizations and political parties, POTA was not introduced as a bill in parliament.  Instead, it was promulgated as POTO, Prevention of Terrorism Ordinance.

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POTO became POTA on March 26, 2002. POTA as a modified version of TADA, with similar inconsistencies in protection of human rights.

The POTA violates international-human-rights standards, which provide the framework for international protection and promotion of human rights. It is also incompatible with international human rights standards and treaties, particularly the International Covenant on Civil and Political Rights (ICCPR), to which India is party.

India has signed but not yet ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to validate torture under POTA. However, notwithstanding non-ratification, adherence to international human rights standards has been upheld by the Supreme Court of India in a number of decisions (for example, Vishaka & Others vs. State of Rajasthan & Others: 1997(6) SCC24).

Read more: How Indian media is exploiting Pakistan’s internal political turmoil

The Telegraph Act makes intercepts inadmissible as evidence. But POTA allows it. Other rights-suffocative features of POTA include: (1) vague definitions, (2) insufficient pre-trial and trial safeguards, (3) threats to freedom of association and freedom of expression. Ensuing paragraphs highlight the features.

Vague definitions 

Section 3(5) of the POTA, while criminalizing membership of a “terrorist gang” or a “terrorist organization,” does not clearly define what these terms mean. The crime is considered complete upon proof of membership.

Thus, POTA provides for criminal liability for mere association or communication with suspected terrorists or expressing political opinions without the possession of criminal intent. Obviously, the section is repugnant to `the right to freedom of association’ enshrined in Article 22 of the ICCPR.

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Section 3(8), purports to punish those in possession of information of material assistance in preventing a “terrorist acts”. Failure to provide such information is punishable by up to three years’ imprisonment.

Section 4 of POTA allows legal presumption that if a person is found in unauthorized possession of arms in a “notified area,” he/she is automatically linked with terrorist activity. This along with other provisions undermines the basic right to be presumed innocent until proven guilty.

Arrest 

Section 48(2) provides for pre-trial police detention for up to 180 days. This provision contradicts Articles 9(2) and 9(3) of the ICCPR which require that all arrested people be promptly informed of the charges against them and that they are entitled to trial within a “reasonable time”, or release.

Torture

Torture in police custody is a well-known fact. Section 32 provides that confessions, even those under duress or torture, made to police officers are admissible in trial. This violates Indian Evidence Act, article 14(3) (f) of the ICCPR and article 20(3) of the Constitution of India.

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Section 56 of the ordinance provides for protection from punishment and blanket immunity to police officers who use torture or cruel, inhuman or degrading treatment during interrogations. POTA obviously contradicts India’s repeated promises that it is dedicated to eradicating torture”.

Efforts on the anvil to refine POTA are nothing but palliatives to cure police brutality.  Hence, they are not worth discussing.  When asked about the POTA, in an interview to The Hindu, Dato’ Param Cumaraswamy, former UN Special Rapporteur on Independence of Judges and Lawyers said: “Past experience had shown that draconian legislations did not provide much safety to the state against terrorists or militants but were used only to protect the safety of the government in power”. He added, “My concern is that extensive powers given to the executive can always be abused without there being any independent judicial review”.

Conclusion

India uses its draconian laws to gag dissent. The Hindu-monk chief minister of India’s northern state of Uttar Pradesh regards a cow as a citizen. He directed the police to register cases under National Security Act for offences concerning a cow. One hundred and forty cases were soon registered to terrify the Muslims.

Read more: India ‘financing, organizing mercenary terrorists’ against CPEC: Pakistan

The inescapable conclusion from the above analysis is that the POTA is meant to gag political dissent and crush freedom movements.  It baffles one’s imagination that POTA has the same goal as Draco’s code had 2,613 years back that is “crush common men’s revolt by use of brutal force”.  POTA is unnecessary in view of India’s other equally draconian laws like Indian Armed Forces  (Special Powers) Act and Terrorist-affected Areas (Special Courts) Act. These laws allow pre-trial detention of “suspected militants” without disclosing reasons and house searches without warrants. An arrestee is considered guilty until he is proven innocent. An appeal against POTA lies to the inaccessible Supreme Court.

Mr. Amjed Jaaved has been writing freelance for over five decades. He has served the 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. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.