3.2 The Jammu and Kashmir Public Safety Act

The Jammu and Kashmir Public Safety Act, 1978, permits detention for acts con side red prejudicial to the security of the state for a maximum of a year. Political prisoners have been detained without trial under it for engaging in alleged “anti-national activities”; a number of them may have been prisoners of conscience. For example, one was released by court order in December 1987, when the state High Court declared the newly introduced Section 10-A of the act unconstitutional. Section 10-A permits detention on any of the grounds specified by a deputy commissioner of a district. Under the original act a person had to be released even if one of the detention grounds was found to be invalid and unreasonable; but the new section 10—A, incorporated into the Act in early 1987, permits detention for “prejudicial activities” even if only one ground was found to be valid. The court ruled that section 10-A removed existing constitutional safeguards and infringed the fundamental rights guaranteed in the constitution. The court ordered the release of an alleged member of the Muslim United Front, saying that the detainee was not given any material with which he could have made an effective representation against his detention, as the constitution required. The court also granted him compensation.

3.3 The Terrorist and Disruptive Activities (Prevention) Act

In 1987 the government strengthened the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985. Its provisions lapsed in May but were immediately replaced by an ordinance and later, in September, by an act of the same name. The 1987 act allows detention in judicial custody without formal charge or trial for purposes of investigation for up to a year; during this period bail is difficult to obtain. The act also provides for trials on charges of widely defined “terrorist acts” by special courts sitting in camera, if necessary in jail. The identity of witnesses appearing before the courts can be kept secret. Appeal against orders passed by the special courts can be made only to the Supreme Court -a course of action few people can afford. The government also introduced a new section, Section 15, into the act which makes a confession to a senior police officer admissible in evidence provided the police have “reason to believe that it (the statement) is being made voluntarily.” This is an important departure from the existing rules of evidence laid down in the Indian Evidence Act which, as a long established legal safeguard to protect accused people, has always disallowed confessions to the police in court proceedings on the grounds that they were unreliable.

Section 21 of the new act shifts the burden of proof on to the accused, who is presumed guilty in four particular situations: if unauthorized arms have been found in an area specified by the government; if the prosecution produces a confession made to anyone who is not a police officer; if a co-accused has made a confession made to anyone who is not a police officer; if a co-accused has made a confession implicating the accused; or if there is expert evidence of fingerprints at the scene of the crime. This provision of the act is contrary to the presumption of innocence which is customary in Indian law and to an important principle enshrined in Article14 of the International Covenant on Civil and Political Rights to which India is a party. The act also makes bail much more difficult to obtain. Indeed, since the act was passed, bail applications have often been rejected, especially when made by Sikhs.

In August 1987 the Minister of State for Home Affairs, P. Chidambaram, said that special courts had been established under the act in 12 states and Union Territories including Jammu and Kashmir, Haryana, Gujarat, Rajasthan and the Union Territory of Chandigarh and added that changes had to be made in the act because of the many acquittals. He cited the case of Punjab where, he said, only six out of the 1,927 people arrested under the act had been convicted. He added that the act was intended to deal “with an extraordinary situation” and would be in force for two years. Amnesty International believes that several of the act’s provisions, notably those changing the presumption of innocence and the mandatory provision for trials to be held in camera, could constitute a departure from international human rights standards, and that the loose definition of “disruptive activities” could permit people to be held for peacefully expressing political views.

3.3.1 The indiscriminate use of the Terrorist and Disruptive Activities (Prevention) Act

The Indian press has carried reports that the central government has been concerned about the use of the TADA in Punjab. There have been repeated complaints that innocent people have been arrested under the act and have been released only after paying compulsory, large sums of money to the police. The central government reportedly requested the state authorities to review the cases of those held under the act in the “maximum security” jails in Sangrur and Nabha, whose number was put at 2,500. In addition there has been widespread concern that the act has been used without sufficient discrimination. In May 1987, for example, following the imposition of President’s Rule in Punjab, more than a thousand political prisoners were arrested under “antiterrorist” legislation. They included two former Akali Dal ministers and 37 members of the All India Sikh Students Federation, 35 members of the United Akali Kal and 35 members of the Damdami Taksal.

On 7 December 1987 the Supreme Court expressed distress that the Uttar Pradesh Government had opposed and a court in the state had not granted bail to two men arrested under the TADA because they were Sikhs and residents of Punjab. The Supreme Court held that there had been a “complete miscarriage of justice” and that “there can be no different treatment between citizens and citizens in the matter of granting bail.”

Elsewhere also there have been indications that the TADA has been grossly misused. Of particular concern is its use in Gujarat, a state from which no pattern of political violence has been reported. In September 1987, 1,364 people, some of them old, were reported to be in detention in Gujarat under the provisions of the TADA. By the end of October 1987 the Indian press put the number of people charged under the act in Gujarat at 2,230 1,800 of whom had reportedly been released on bail by judges apparently concerned because the act was being used without discrimination or justification. The act appears to have been used in Gujarat to curb legitimate political activity, including protests by students against a rise in milk prices, by workers opposing the contract labour system and by farmers campaigning for a reduction in electricity charges. In Ahmadabad the act was used in August 1987 to detain six trade union officials who had led a strike for increased wages at Reliance Industries Ltd, a private textile manufacturing company. The six men originally charged with criminal offences when violence erupted between striking and non-striking workers. But later the police added a charge under the TADA and bail was denied. The judge ruled: “… none of the applicants can be released on bail at this stage only because of there being (an) offence under Terrorist and Disruptive Activities (Prevention) Act”. The detained workers have appealed to the Supreme Court but the outcome of the appeal is not known. In November the Gujarat Government said it had received many complaints about misuse of the act and announced a review of all the cases registered under it. That same month the Minister of State for Home Affairs of the central government instructed police officers not to misuse its provisions.

Complaints about misuse of the act have also come’ from Maharashtra, where many tribal people have been arrested under it on charges of assisting Naxalites. The police have apparently not given details of these charges and those arrested have claimed that they were engaged solely in peaceful activities intended to protect their traditional means of livelihood, and that the police had used the act to extort bribes.

The act has also been used to detain alleged separatists in Jammu and Kashmir, alleged Naxalites in Andhra Pradesh and members of the Gurkha National Liberation Front; and it has been used in West Bengal, where the state government said that by December 1987, 95 arrests had been made under it. In Jammu and Kashmir members of the Muslim United Front were detained under it for “arousing religious sentiments” and demanding “independence” from the Indian Union.

In some instances the TADA and the NSA have been used in combination to keep people in detention for several years without trial. This has been the: case in Punjab. In March 1987 Julio Ribeiro, the then Director General of Police in Punjab, was quoted as saying: “We have put 52 such persons (political detainees) away for two years under the National Security Act. Then we will try them under TADA and that should keep them in custody for another year or two.”

3.4 The Terrorist Affected Areas (Special Courts) Act

The Terrorist Affected Areas (Special Courts) Act, 1984, ‘like the TADA, permits the establishment of special courts sitting in camera and allows the identity of witnesses testifying before a special court to be kept secret. Again like the TADA, the act transfers to an accused person the burden of proving innocence (if arrested on a charge of “waging war” and if found in a specific area). An appeal against orders made by the special court must be made within 30 days and can be made only to the Supreme Court.

3.4.1 The Jodhpur detainees

The government has given repeated assurances that it would review the cases of a single group of, originally, 366 Sikhs on trial under the act in Jodhpur jail, Rajasthan. These Sikhs were arrested in June 1984 in the Golden Temple in Amritsar, Punjab when the army removed armed Sikh fundamentalist leader Sant Jarnail Singh Bhindranwale and his followers from its premises. Among them are many apparently innocent men and women who happened to be in the Golden Temple at the time, including pilgrims and temple employees. First held under the NSA and later charged with “waging war” under the 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.