Terrorist Affected Areas (Special Courts) Act, these men and women have been waiting for court proceedings to resume since 1985, when the judge hearing their case ruled that police witnesses could not all remain anonymous and the government appealed against the ruling. The likelihood of these detainees being fairly tried is considerably reduced because of the changed rules of evidence which apply under the Terrorist Affected Areas – (Special Courts) Act combined with Section 111A of the Indian Evidence Act. Not only can the identity of witnesses be kept secret – a provision which could inhibit effective cross-examination of their evidence – but these special laws also transfer the burden of proving innocence to the accused if arrested “at a place…at a time when firearms or explosives were used at or from that place to attack or resist members of the armed forces.” These rules are contrary to both the presumption of innocence which is customary in Indian law and which is provided in Article 14(2) of the International Covenant on Civil and Political Rights. Under these rules all those in Jodhpur jail who were arrested at the Golden Temple in 1984 will have to prove their innocence of the charge of “waging war.” In March 1988 the government released 40 of the detainees, dropping the cases against 45 (five of whom it said had absconded), though not the cases against the rest.
Fundamental rights and the 59th Amendment to the Constitution: the apparent incompatibility of the amendment with India’s obligations under the International Covenant on Civil and Political Rights
The Indian constitution protects fundamental rights in Part III, including the right to equality before the law (Article 14), the right to freedom of speech, expression, assembly and association (Article 19), the right to life and personal liberty (Article 21) and protection from unlawful arrest and detention (Article 22). The Supreme Court is empowered to enforce these rights, which cannot be suspended unless an emergency is proclaimed in which
