World Sikh News, in its efforts to apprise its readers of the situation in the Punjab and the world view. of the area has obtained the 1992 U.S. Department of Stale report on Human Rights practices in India, We will be publishing the excerpts from the report in serialized form for Our readers. This is the Third: installment,
- Arbitrary Arrest, Detention, or Exile
There were credible reports of widespread arbitrary arrest and detention. The Constitution re quires that an arrested person be informed of the grounds for arrest, given the right to be represented by counsel, and (unless he is being held under a preventive detention law) to be produced before a magistrate within 24 hours of arrest. At this initial appearance, the accused must either be remanded for further investigation or released, provisions that have been upheld by the Supreme Court. However, these provisions do not apply to persons arrested under national security laws and are not always respected even when national security is not involved.
The Constitution permits the enactment of preventive detention laws in the event of threats to public order and national security. Several such laws have been adopted and provide for limits on the length of detention (up to 2 years) and for judicial review of such detention.
The National Security Act (NSA) of 1980 permits detention of persons considered security risks police anywhere in India {except Kashmir)may charge suspects under NSA provisions. The Jammu and Kashmir Public Safety Act (1978) covers corresponding procedures for that state, To be released from detention under the NSA, a court must determine that all grounds for detention are invalid. NSA detainees are permitted visits by family members and lawyers. Under NSA’s strong special and preventive detention provisions, a person may be detained for up to 1 year without charge or trial (2 years in Punjab) on loosely defined security grounds, but must be informed of the grounds for detention within 5 days of arrest and brought before an advisory board of three high court judges within 7 weeks of arrest. Al that time the detainee may be released on the basis of “insufficient grounds.” 14,400 people have been arrested under NSA since 1990, and all but about 500 have been released on bail.
The Terrorist and Disruptive Activities-Prevention) Act (TADA), though enacted in 1985 to fight terrorism in Punjab, is applicable in all states and to all Indians abroad. In 1992, 23 of 25 state governments had formally in yoked the TADA, though only a handful of states face actual insurgencies. The TADA is subject to renewal every 2 years and will next expire in May 1993, The law was promulgated to punish those found guilty of terrorist and disruptive acts with no less than 5 years’ imprisonment and up to the death penalty for certain terrorist crimes. Disruptive activities are defined broadly to include speech or actions which disrupt or challenge the sovereignty or territorial integrity of India. In some cases, the Government has been accused of using the TADA in criminal proceedings in order to avoid the lengthy process of building a criminal case. The TADA extends the period to There were wide Spread accusations that the Act was being misused in states not experiencing civil unrest, including Gujarat, Haryana, Madhya Pradesh, and Maharashtra, as a convenient way to hold people without trial. In Tamil Nadu, there were credible reports that the state government was using the TADA to arrest political opponents under the pretext of combating terrorism by the Liberation Tigers of Tamil Elam (LTTE). In Punjab, state authorities on several occasions arrested Sikh political leaders for short periods under the TADA in order to prevent opposition rallies and demonstrations, Exile is not practiced.
- Denial of Fair Public Trial
India has an independent judiciary with strong constitutional safeguards. Supreme Court Justices are appointed by the President and serve up to age 65. Judges of the state high courts are appointed by the President in consultation with the Chief Justice and the governor of the state, and may serve up to age 62. India’s legal procedures generally assure a fair trial when they function normally, but the process can be drawn out and inaccessible to the poor. Defendants have the right to choose counsel from an Indian bar that is fully independent of the Government Effective appeal channels exist at all levels of the judicial system.
The Indian Criminal Procedure Code provides for an open trial in most cases. Under certain circumstances it allows significant exceptions, including in proceedings involving official secrets, trails in which statements prejudicial to the safety of the State might be made, or under provisions of national security legislation such as the TADA. Sentences, however, must be announced in public. The TADA authorizes secret testimony lo protect witnesses and suspends the usual restrictions on the use of evidence obtained during police interrogation, Per sons charged under the TADA with certain categories of crimes are presumed guilty and carry the burden of proving their innocence. Human rights groups charge that these categories are so broad— including cases where weapons are recovered, where a codefendant has made a confession, or where there’ is strong incriminating evidence that they can be manipulated to fit any case. TADA trials are held before special courts, which sit in closed session in any district of the state where the crime was committed. Some 450 petitions have been filed before the Indian Supreme Court challenging the constitutionality of the Act, but none has been heard.
The judiciary is independent of the executive branch, Judges are selected by the Law Ministry following consultations with the Chief Justice of the Supreme Court. Islamic religious law governs many noncriminal matters involving Muslims, including family law, inheritance, and divorce, Government’s declared policy is not to interfere in the personal laws of the minority: communities, with the result that discriminatory personal laws, of ten against women, are upheld.
In Kashmir and Punjab, where armed militants demand independence for their states, the legal system barely functions. In both and their family members have created a situation in which no court is willing to hear cases involving militants. . As a result, there were no convictions of alleged terrorists in these states during 1992, even though some militants had been in detention for years, Security forces appear on many occasions to have meted out their own hasty “justice” with deaths in custody and faked en counter killings, rather than rely on the legal system,
f, Arbitrary Interference with Privacy, Family, Home, or Correspondence
Under Indian law, warrants are normally required for searches and seizures, In a criminal investigation, police may conduct searches without a warrant if obtaining one would cause undue delay, but they must justify such searches in writing to the nearest magistrate with jurisdiction over the offense being investigated. Under the disturbed areas legislation in Assam, Punjab, and Jammu and Kashmir, the authorities have special powers to search and arrest without a warrant and to shoot to kill suspected lawbreakers or disturbers of the peace.
Surveillance of communications, including tapping of telephones and intercepting personal mail, is authorized under the Indian Tele graph Act “on the occurrence of any public emergency or in the interest of the public safety or tranquility.” These powers have been used by every state government
to be continued
Article extracted from this publication >> March 19, 1993
