Articles 9 and 10 of the Universal Declaration of Human Rights passed in the United Nations General Assembly, 1948 state, “No one shall be subjected to arbitrary arrests, detention, or exile. Everyone is entitled to full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charges against him.”’ The circumvention of and around the National Security Laws in India by way of indiscriminate amendment, and complete omission, noncompliance or no enforcement of the established laws, was clearly, in retrospect, directed to inhibit, suppress, defame, and discredit the Sikh community. By doing so, the government has UN abashedly denied the basic civil liberties and human rights to the Sikhs.
According to the Peoples’ Union for Civil Liberties (PUCL), Delhi, (1) “37 years after independence, the people of India have been subjected to jaws which violate all principles of national justice. In some ways, they are worse than the laws under the colonial regime. Not only do they subvert the right to a fair trial but they could also be used against individuals and groups working for social and political justice “and (2) ‘that the present political system is bent upon subverting the principal of freedom and justice, and destruction of the fundamental rights of the individuals.”” A black (bad) law once passed is not all: ways used against the bad alone. In times of panic and confusion and lack of direction, governments lose their heads. They resort to repressive policy, and even the innocent are not spared. We have seen plenty of instances in Punjab, Delhi and other parts of India where such laws have been and continue to be used in the recent past, and the victims being entirely the Sikhs.
In the November carnage, it is true that in some instances, Hindu families did provide temporary protection to aggrieved and tortured Sikh families in Delhi, and did make humanitarian gestures of providing food and provisions to refugees. These acts are to be commended. However, what cannot be ignored is the fact that all this tragedy was perpetrated by, in abidance with, and organized by the ruling political group and the government, mostly consisting of the majority \community. These horrible acts should have been I condemned publicly by ‘the decent minded majority community, particularly those who were instrumental to provide food and shelter to the innocent victims of the massacre.
The loss of lives, properties and businesses is extremely painful for many and all who have lost their earning heads. Who’s thousands of innocent children have beer orphaned, hundreds and women wide countless thousands owed, and young girls and women raped and molested. Some of the physical assets are replaceable, rehabilitatable, but lost lives are neither replaceable nor rehabilitatable. Traumatic experiences will linger on forever, and would continue to be painful reminders of this holocaust. But still more painful is the shattering of the trust that the most progressive and loyal community of Sikhs always placed in the majority community and its government. The Bhopal tragedy at and around the Union Carbide factory was unfortunate in which 2,000 persons were killed. The government as it should has responded by providing all kinds of relief measures, ordering a judicial enquiry, and even initiating legal proceedings against those responsible for this tragedy. On the other hand, many times more Sikh lives were lost in the army’s attack on the Golden Temple, scores of other Gurdwaras in Punjab since June 1984, and still many more times Sikh lives were lost in the carnage following Mrs. Gandhi’s death in Delhi and several other places in the rest of the country. Properties and businesses worth millions and millions of dollars were destroyed, and _thousands and thousands were made homeless, widowed or orphaned. The government has not only, not yet chosen to institute any kind of judicial enquiry in complete disregard to an overwhelming demand by numerous groups and institutions all over the world, but has been extremely callous and indifferent even to provide adequate relief and rehabilitation to those in dire distress, and derelict in the enforcement of established laws against widely known guilty for this atrocity.
The laws of the land are supposed to help alleviate occurrence or recurrence of any such similar ugly episodes. The National Security Amendment (second) NSA, 1984 and the Terrorist Affected Areas (Special Courts) Ordinance (TAAO), 1984 have given wide powers to the police and to the state. The widespread apprehension has been proved that such laws are enacted so as to directly affect adversely the civil rights of the citizens and that these laws have been used against dissenters and for narrow political ends of the ruling party. Such draconian laws are brought in by the government to keep itself in power and to safeguard the vested interests it represents, thereby curbing civil liberties and democratic rights of the people.
Article 21 of the Indian Constitution and subsequent rulings by the Supreme Court guaranteed to every person the right of life and property which could not be denied without honoring the due procedure established by law that must be just, fair, and reasonable. According to the Hindustan Times, August 18, 1984, 398 persons, presumably all Sikhs, were detained under the NSA in Punjab alone from 4/5/84 to 7/31/84. Of these, 315 are still under detention. These are government estimates. The actual numbers are many times more.
Article 22 of the Constitution provided for a Preventive Detention Act (PDA), enacted in 1950
(Cont. from Page 8, Col. 5) until the new Act of 1971, Maintenance of Internal Security ACT (MISA). The PDA has been reenacted seven times. It is different from detention under the normal laws, Indian Penal Code (IPC) and the Criminal Penal Code (CPC). Under the IPC and CPC, persons are arrested for having committed acts violate of the law. Under the PDA, however, persons are arrested to prevent them from doing what the government does not wish them to do. MISA was repealed in 1977 and the NSA promulgated in December 1980.
A person detained under the PDA finds it virtually impossible to challenge his detention by filing a Habeas Corpus petition till the grounds of detention are communicated to him. The NSA provided a period of 5 days, and in special circumstances, 10 days, later amended to 15 days, during which the detainee must be told the grounds of his detention. It is relatively simpler for the detaining ‘authority to label some exceptional circumstances to explain the delay in communicating the grounds. Under the amended NSA, sections 10 and 11, the case of a person detained must be submitted to the Advisory Board within 4 months and 2 weeks, as against only 3 weeks originally, of his detention and the Advisory Board shall submit its report within 5 months and 3 weeks of the detention. Thus, a detainee, under this amendment, will undergo imprisonment for a period of nearly 6 months even if his detention is ultimately found by the Advisory Board to be unjustified. The Constitution Act, 44th Amendment, 1978, Article 22(4) was amended so as to provide that this Advisory Board be constituted “in accordance with the recommendations of the Chief Justice of the appropriate High Court and two others who may be either serving or retired High Court judges.’’ Even though the 44th Amendment was passed on June 10, 1979, the above amendment to Article 22(4) still has not been promulgated. Thus, a Constitutional Amendment duly passed by the requisite majority of the Indian Parliament has been virtually flouted by the Central government for over 5 years.
One of the amendments under the NSA is in Section 14(2). Before this amendment, it read that on the revocation or expiry of a detention order, a fresh detention order could be issued only if fresh facts had arisen after the date of revocation or expiry. The amended section 14(2) now provides that after the expiry or revocation of a detention order, another detention order can be issued even if no fresh facts have arisen. The serious implication of this amendment is that even if a detention order is held invalid by a court of law, the detaining authority can revoke the said order and can make another detention order on the same grounds, provided the detainee is not thereby detained for a total period of more than 12 months. Thousands of Sikhs have been thrown in jails under these new provisions.
The Terrorist Affected Areas Ordinance 9 (Special Courts) can be applied to any area which is declared by the central government as a terrorist affected area. The definition of “‘terrorist”’ is too wide. The term “‘terrorist’? Can be applied to any person who causes “‘disruption of services or means of communications essential to the community.” Thus, a body of workers who go on strike in the railways or in the postal department to press their demands would come under the definition of ‘‘terrorists,” and the area affected by the strike can be declared as a “terrorist affected area.”’ At present, the entire state of Punjab has been declared such an area, and the Sikhs, who are in fact the grieved party, have been made the victims.
Drastic amendments have been made by the Ordinance in Section 167 of the CPC. The Ordinance provides that the arrested person may be produced before an executive magistrate, and not necessarily a judicial magistrate as originally stipulated. It is interesting to note that the executive magistrates are appointed by the executive branch of the government and would be amenable to executive influence. The Ordinance also extends the ordinary period of in
visitation from 15 to 30 days, and where adequate grounds are shown, to one year instead of 60 or 90 days originally. Thus, under this Ordinance, a person arrested for an alleged offense may remain in custody for a whole year without charge sheet being filed against him in a court of law. This amounts to detention without a trial for a period of one year. Thousands of Sikhs are presently being held under this provision.
The Ordinance reverses (Section 438 of the CPC) the ordinary rule laid down by the Supreme Court that an under trial prisoner, since he is assumed to be innocent till his guilt is proved, should normally be released on bail. Most of the laws here in America and other countries provide that one is innocent unless proven guilty. Unfortunately, the Ordinance lies down that one is guilty unless proved innocent. The new provision under Section 112A of the Evidence Act puts the burden of proof on the accused, if he/she is charged with criminal conspiracy or attempt to wage a war against the State. If the police can show that the accused had been in a ‘disturbed’ area at the time “when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or forces charged with the maintenance of public order,” it shall be presumed that the accused is guilty unless and until proved innocent in a court of law. This is a heavy burden for the accused to have to bring witnesses and bear the enormous cost and time of prolonged litigation. This has resulted in endless harassment of the Sikhs. The record of police has shown that they have not used these sweeping provisions with due caution. If an innocent person had been at a place in an area and at time when firearms or explosives were used to counterattack forces charged with the maintenance of public order, he shall be presumed to be guilty. It is not necessary that he should be found with weapons; his mere presence will automatically condemn him, The burden of proof has shifted from the accuser to the accused, Besides, a ‘terrorist’ has been defined so vaguely that an individual need not have necessarily indulged in violence. If the government, in its unquestionable discretion declares any part of the country as terrorist affected area, any individual in the area can be arrested on mere suspicion and it would be for that unfortunate defender to establish his innocence. Moreover, an individual, under the NSA, can be arrested again and again on the same ground, and the police officials are absolved of the time honored obligation of being specific in their charges while detaining an individual.
The indiscriminate resort to the ordinance making power itself, diluting the procedural safeguards available to a detainee, shows scant regard for democratic norms and a tendency to go by the letter rather than the spirit of the con situation. To come out with ordinances when a parliamentary session is not far off, or even adjourning the legislature, as some states did, in order to issue ordinances, is a curious commentary on India’s parliamentary practices. It has been a blatant curbing of civil liberties and human rights and a serious threat to social workers, trade unionists, civil libertarians, political Opponents, and other individuals and groups. The entire Sikh community has been branded as “‘terrorist’”’ under the above mentioned pseudo definitions, and is being denied its basic birth rights of civil liberty and human rights guaranteed to it by the constitution, in Punjab, Delhi and many other cities in India. Sikhs have become the ‘victims’ of the National Security Act.
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