The following is the continuation of the text of “CITIZENS GUIDE TO RAJIV GANDHI INDIA,” A book published by an Indian human rights organization, the People’s Union Of Democratic Rights. The book describes various new laws which have helped the Rajiv Regime to turn the once democratic India into an autocracy. Anyone can be arrested under these new laws which are still enforced in Punjab. An arrested person is presumed guilty till he proves that he is innocent. Hundreds are still in jail under these laws.

If the government wants to keep you in detention, two handpicked members of the board can overrule the chairman, a sitting or retired Judge, if the latter favors your release. You can be detained for a maximum period of 12 months (13). But even after the expiry of that period, or even if your detention order is provoked on the recommendation of the Board, you may be put back in jail under fresh detention orders (14-2).

In 1987, by an amendment the Rajiv Gandhi government took away from you even the little hope that you could expect from the Advisory Board’s recommendation. The amendment now enables the government to detain you “without obtaining the opinion of the advisory board for a period longer than three months but not exceeding six months from the date of detention.”

 If you are arrested under TADA.

You will be tri able only by a designated court and not the ordinary judiciary (9).

Your trial will be held in camera (13-1) and the

“The amendment now enables the government to detain you without obtaining the opinion of the advisory board for a period longer than three months but not exceeding six months from the date of detention.”

identity and address of the witnesses will be kept secret (13-2).

Do you understand the implications? You will be completely cut off from the rest of the world during your trial. With no friends or relatives to give you the moral support. You cannot hope for a fair trial, not able to challenge the witness brought to give evidence against you, (He could be a police officer in mufti, pretending to be a member of the public, since his identity cannot be asked for).

“The police, notorious for their third-degree methods in custody where almost every day there are cases of arrested suspects being beaten to death — will use all types of torture upon you to make you a sign a confession to crimes which you have not committed.”

You may be arrested in Punjab, but can be taken away for trial to Kanyakumari. For, the government can transfer your case from one Designated Court in a State to another Designated Court in a different state (9-2) thus depriving you of easy access to your family and friends living in the state to which you belong.

Two new amendments made to TADA in August 1987 have pushed you further to the walls. First, your confession to a police officer (and not to the judicial magistrate as in the past) should be good enough for admissibility in the courts. Its ominous meaning must be clear to you. The police, notorious for their third-degree methods in custody where almost every day there are cases of arrested suspects being beaten to death will use all types of torture upon you to make you a sign a confession to crimes which you have not committed. Thus, ironically enough, you can be convicted on the basis of a confession extorted from you at a bayonet point.

The other amendment shifts the onus of proof from the prosecution to the accused, in four circumstances; recovery of arms and explosives from the possession of the accused; finding of fingerprints at the scene of the crime; confessions to a co-accused and extra-judicial confession made to any person other than policemen.

If the over-zealous policemen want to get you prosecuted, he can plant arms or explosives on you at the times of your arrest. You will then have to prove that they do not belong to you. In practice it is extremely difficult for the accused to discharge this burden of proving his/her innocence.

This legal provision violates the International Covenant

“You will be barred from the outside world; witnesses will be brought against you whom you cannot. Challenge, you will beat the mercy of the police who will torture you with impunity to extort confessions from you, That had been the fate of about 9,300 people detained under TADA till the end of 1987.”

on Civil and Political Rights (to which India is a signatory), which lays down “Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law.” a right which is recognized by the Human Rights Committee in its statement; “…the presumption of innocence… is fundamental to the protection of human rights …By reason of the presumption of innocent the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt.”

But if you are arrested under TADA all the odds are rallied against you will be barred from the outside world; witnesses will be brought against you whom you cannot challenge, you will be at the mercy of the police who will torture you with impunity to extort confessions from you.

That had been the fate of about 9,300 people detained under TADA till the end of 1987. Of them 4,028 were in Punjab alone, 2234 in Gujarat and 1,410 in Haryana,

 “A judiciary of the type we have in India can rarely preserve at odds for too long with the ruling political party.”

What Do You Expect From The Courts?

The citizens last resort for protection from the tyranny of an authoritarian government is the judiciary.

But can you hope for a fair hearing in our courts? If you are poor many among the victims of the repressive laws come from the lowest rungs of the socio-economic order the odds are heavily stacked against you. A beggarly appearance itself is often a reason for suspicion in the minds of those who are better fed and better dressed, it is the latter again who man the judiciary. A classic case. Of their typical bias against the poor was provided by the acquittal by the Madras High Court of some landlords who were accused of burning to death 42 Scheduled Caste landless laborers, including 20 children on December 25, 1968 in Kilvenmani, Tamilnadu. Acquitting them, the High Court observed: “Most of them are rich men owning vast extents of land…it is difficult to believe that they themselves walked bodily to the scene and set fire to the houses.”

”Compliant” judgments are delivered from various motivations ranging from political bias to personal ambitions, The tendency towards such judgments increases during an Emergency as we remember in 1975-77. When MISA detents were being tortured and fired upon in jails, one Supreme Court judge in a famous judgment in the Habeas Corpus Case in April 1976 said “the care and concern bestowed by the state authorities upon the welfare of the detenus, who are well-housed, well-fed and well-treated is almost maternal.” The majority judgments in that same case, which upheld the government’s decision to suspend fundamental rights during an Emergency situation, indicated that a judiciary of the type we have in India can rarely preserve at odds for too long with the ruling political party.

The new extraordinary laws which have culminated in the passing of the 59th amendment are likely to lead to the judiciary’s progressive capitulation to the executive’s view of its legal powers. These laws seek to legitimize the oppressive authority of the police by deliberately obfuscating

“Under the SPG Bill “‘no suit, prosecution or legal proceedings shall lie against any member of the group who does anything which is in good faith done …”

the boundaries of what constitutes lawful and legitimate views and actions in a parliamentary democracy through attempts to brand all dissidents as “extremists” and “terrorists”. In such a situation, the judiciary can again act as a Suppliant tool of the executive as it did during the 1975-77 Emergency period.

But not quite reassured of the judiciary’s support, the government is trying its best to severely restrict the courts scope for judicial review, NSA and TADA detenus have been put beyond the pale of the ordinary courts the former to be heard by government appointed Advisory Boards, and the latter by specially designated courts.

Besides the judiciary is being barred from interfering in disputes between the citizens and the police armed forces. The latter are being granted protection from any legal proceedings in connection with actions carried out by them in accordance with the objectives of these laws.

As a result, you can be harassed your movements curtailed your voice muffled; your house demolished your body rots in jail and remains at the mercy of police bayonets.

Your Persecutors Go Scot-Free

Even if you are proved innocent if you’ are lucky

 “At least teen-aged girls were kidnaped b) the Assam Rifles personnel. They have not yet returned.”

enough or after you move heaven’ and earth to get released you have no redress for the harassment and. hardship caused to you, for the valuable time of yours: stolen by the jail and the police, for the loss of income caused by days and months of incarceration.

You cannot go to the court demanding compensation for the losses you have suffered, or punishment for those responsible for causing them. Both NSA (Section 16) and TADA (Section 20) prevents you or others from instituting any suit, prosecution or other legal proceeding against the central government OF the state government or any other officer or authority who might have been responsible for restricting your movements, expunging your reports, stifling your voice, putting you behind bars or even doing away with your life,

 The Next installment of Rajiv’s India will be published in the April 28th issue of the World Sikh

News.)

This regular feature is being brought to you by: World Sikh Organization U.S.A

 

Article extracted from this publication >>  April 21, 1989