A number of trials have been under the provisions of the TADA in several jails inside and outside Punjab, including in New Delhi’s Tihar jail. Lawyers who had defended people tried under the TADA have told Amnesty International that the public was often denied attendance at such trials, that witnesses felt overawed and inhibited from giving evidence freely against the police in the intimidating atmosphere inside a prison and that few lawyers were therefore prepared to defend people standing trial inside a jail.

A further concern is that in four situations identified in Section 21 of the Act 19 the burden of proof is shifted to the accused person, who has to prove his or her innocence. This clearly contravenes the important safeguard provided in Article 14(2) Of the International Covenant on Civil and Political Rights, which reads: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”. The Hu man Rights Committee, in its General Comment 13(21)(d) on Article 14 of the ICCPR, stated” the presumption of innocence’s fundamental to the protection of human rights. By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of the doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt…it is… duty for all public authorities to refrain from prejudging the outcome of a trial”.

The shift in the burden of proof and the obligatory provision to hold all trails con ducted under the TADA in camera were matters criticized by members of the Hu man Rights Committee when they examined India’s second periodic report. One member found the provisions of the TADA “disturbing” whereas another called the provision of presumption of guilt” completely unacceptable.”

Section 15 of the TADA permits a con fission made to a senior police officer to be considerable in evidence. This provision could serve as an incentive to the police to obtain “confessions” under torture: this is apparently the reason why Section 26 of the Indian Evidence Act normally excludes all confessions made in police custody, unless they are made in the presence of a magistrate. Section 15 of the TADA could also encourage the police to resort to re cording false statements. Amnesty International knows of several cases in which witnesses were forced to sign their name on a blank piece of paper, enabling the police to fill in their own version of events. This practice was referred to by the judge of the Designated Court, Chandigarh, in a case brought under the TADA, on Nov.17, 1987.

“…It appears that the recovery of these firearms was not affected in the manner alleged by these witnesses. the attestation of the witnesses figures right at the boom of this paper which clearly shows that the attestation was obtained on the foot of this paper when it was blank and that is why in order to fill up the gap between the attestation of the witnesses the spacing of lines inters had become wider towards the fag end of this document”.

Although Indian law normally permits a two staged appeal (first to the High Court and then to the Supreme Court), appeal against judgment by a Designated Court trying cases under the TADA lies only with the Supreme Court, and has to be filed within 30 days instead of the normal 60 days. Lawyers familiar with these appeals explained that most failed to meet this deadline because of the time involved in first finding a qualified lawyer and then raising the funds to pay him. Many people convicted under the provisions of the TADA are poor and are convicted by court sitting far away from Delhi; even if they can identify a Supreme Court lawyer willing to make the appeal you can rarely afford the high fees and make arrangements within the 30 day limit. Appeals are simply added to the long list of cases already pending: lawyers said that unless a special application was made of the Supreme Court, the appeal would not be heard until several years later. The result has been that very few appeals against judgments handed down by Designated Courts hearing cases under the TADA procedures have come up for final decisions before the Supreme Court.

Amnesty International believes that there should be sufficient time and adequate facilities to appeal against judgments handed down by Designated Courts acting under the TADA procedures, not only because other important legal safe guards have already been suspended under the Acts provisions, but also because the courts are empowered to impose the death penalty. This concern has also been reflected by the United Nations, when it called upon governments, in General Assembly Resolution 35/12 of Dec.15, 1978:

“…to review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safe guards for the accused in capital cases”.

Moreover, the United Nations Economic and Social Council recommended to member states of the United Nations, in resolution 1989/64 of May 24, 1989, to take specific steps by:

“(a)Affording special protection to per sons facing charges for which the death penalty is provided by allowing time and facilities for the preparation of their defense, including the adequate assistance of counsel at every stage of the proceedings, above and beyond the protection afforded in non-capital cases”.

Legal proceedings under the TADA, if initiated, are subject to long delays and rarely result in convictions. More than 130 Sikh men have complained to the Punjab and Haryana High Court that they were arrested at various dates during 1988 and that, although charges were brought against them under the TADA, the Arms Act and the Penal Code, their trial filed to proceed for two years or more. This was either because the judge who came to prison to try them found the room too small or because they could not be removed to another place for the trail to take place, the stale government having opposed their removal for reasons of danger to public order. Lawyers aid that, as of early 1991, the trial had still not proceeded.

The most typical illustration of will delays from which political prisoners arrested in Punjab are likely to suffer is the case against 324 Sikhs who were held in Jodhpur Jal, Rajasthan, Arrested in June 1984 at the time the army forcibly removed the armed Sikh leader Sant Jarnail Singh Bhindranwale and his followers from the Golden Temple in Amritsar, Punjab, these Sikhs were held without trail for more than four years. Their trial, held inside the prison on charges of “waging war”, had begun in January 1985 but was indefinitely suspended in July 1985, 137 detainees were released in Sept.1988 and the rest in March 1989:no reasons were given either for their release or why they had spent between four and five years in jail without trial. Such practices contravene not to the assurances .India gave to the Human Rights Committee when it said that “speedy trail is a fundamental right of an accused implicit in article 21 of the Constitution”, but also the requirements of Article 9(3) of the ICCPR that “Anyone arrested or detained on a criminal charge hall be brought to trial within a reasonable time or to release”, In its General Comment 13 (21)d.0n Article 14 the Human Rights Committee specified that “This guarantee relates not only to the time by which a trial should commence, but also the time by which its hounded and judgment be rendered; all sages must take place “without undue delay”.

In other cases, people were rearrested on new charges immediately after the courts ordered their acquittal. Bhupinder Singh, alias Binda, son of Teja Singh, was arrested on July 10,1989 on charges of having conspired with four others to assassinate the then Minister of Home Affairs, Buta Singh. Charged under the TADA, he pleaded not guilty and on Nov.29, 1990 the Designated Court acquitted him, finding no evidence of conspiracy to kill. He was kept in prison, however, apparently in connection with other charges, but as of Feb, 1991 no steps had been taken to pros cute him.

According to official figures given in the Lok Sabha (Lower House) in May 1987, only six out of 1,487 cases registered under the TADA resulted in conviction or acquittal Justice 8.8 Sodhi of the Punjab and Haryana High Court found in April 1989 that only eight out of 364 investigated cases registered under TADA had been “disposed of “by the Additional Designated Court established under the Act in the preceding two years.

“The lack of convictions is no doubt related to the intimidation of witnesses and the attacks on judges to which members of armed Sikh groups have persistently resorted: witnesses are said to be too frightened to give evidence and some judges reportedly fear to give judgments. On the other hand, the fact that many charges are brought without substantive evidence or at based on evidence fabricated by the police must also contribute to the low conviction rate. nan number of cases Designated Courts have a equated accused persons on the basis of inadequate police investigations, invoking a Supreme Court directive that the investigations of cases under the TADA, not only have to be thorough but also of a high order. The lack of court convictions, according to some reports, has resulted in the police resorting to extrajudicial executions instead of arresting suspects and bringing them to court. But very few of those committing such grave human rights abuses are ever held accountable.

Lack of accountability

Indian law provides criminal liability for law enforcement personnel committing buses, Apart from other substantive pro visions in the Indian Penal Code, Sections 330 & 331 of the Indian Penal Code make it a criminal offence to “voluntarily cause hunt” or “grievous hurt to Exton confession”, punishable with up to seven or 10 years imprisonment respectively, Furthermore section 346 of the Indian Penal Code prohibits Keeping People unacknowledged detention. Wrongful confinement of any person in such manner as to indicate an intention that the confinement of such person may not be known to any person interested in the person so confined or to any public servant, or that the place of such confinement may not be known to or discovered by any such person or public, servant.” can be punished with up to two years” imprisonment. A three year prison Sentence can be imposed if the wrongful confinement is aimed at extorting a confession

However, Amnesty International knows of no case in which police officers who have tortured detainees or killed detainees or who have kept them in unacknowledged and illegal detention have been held accountable under these or other provisions: of the Indian Penal Code, As described in this report, legal proceedings have still not been instituted against the policemen accused of having tortured Sikh detainees in Ladha Kothi jail more than six years 250, though the official inquiry had identified by name 21 police officials against whom there was prima facie evidence of  evolvement in torture and although the Supreme Court had ordered an inquiry against the relevant police officials. In several other cases described in this report, police officials have failed to appear before or refused to cooperate with injuries conducted 16 establish responsibility for torture allegedly perpetrated.

If no action is taken by the authorities, the victim can bring a criminal complaint against the police. For that purpose, he or she can complain to a magistrate under the. Procedures provided in Sections 200-204 of the Code of Criminal Procedure. But these provisions do not apply to acts committed by the paramilitary forces, such as the CRPF and the BSF. Moreover, the accountability of the military in cases of human rights violations is inhibited by Section 7of the Armed Forces (Punjab and Chandigarh) Special Powers Act, introduced in October 1983, and still in force in the state. The Act provides general impunity to members of the military and air forces from all prosecutions or legal action: “No prosecution, suit or other legal proceeding shall be instituted, except with the Previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.

Most members of the Human Rights Committee, when reviewing India’s second report at their in March 1991 meeting, expressed deep concern about this and other Provisions of the Armed Forces Special Powers Act, particularly in respect of its application in northeast India, One member said he found the Provision of immunity from prosecution to be contrary 10 ICCPR Article 2(3)(a) which requires that any person whose rights are violated should have an effective remedy. Another Committee member asked the Attorney General to draw the attention of his government specifically o the words purporting to be one” in the Act which he described “dangerous”. The Committee member pointed out that any member of the military could justify kitting anybody by simply saying he thought he was performing function and so remain immune from Prosecution.

Article extracted from this publication >> October 11, 1991