Sorry for the long post...I thought it will be better to go through some historical events related to terrorism related laws in India to validate Mr Murali's arguments..
The major part of this post is extracted from the report of *"The Committee on International Human Rights"*.. (2007 Volume 62, No: 2). Readers seeking greater detail and more complete citations should refer to the unabridged version, which is available on the Association's website and in the Columbia Journal of Asian Law. See Anil Kalhan, et al., Colonial Continuities: Human Rights, Terrorism, and Security Laws in India, 20 COLUM. J. ASIAN L. 93 (2006), available at http://www.nycbar.org/pdf/ABCNY_India_Report.pdf ) 1. The case of Dr Binayak Sen doesn't need much elaboration... He is in pretrial custody with the provision of Chattisgarh State Public Security Act for the last one year.. The state manipulation is nothing smaller than frightening and we have seen how much ineffective the courts (including Supreme court) in ending this violence2. 2. 2. Ajay TG's case revealed has shown us how a person suspected and nearly tortured by a Naxallite group can be hunted by the state machine using same "guilt by association" by the same law.. 3. Kangleipal Meitei's case in Manipur is again indicative of the existing draconian laws(after TADA, POTA, etc.) like National Security act , which can be used to hunt even human rights activists...The NSA authorizes preventive detention for up to 12 months, and both the permissible grounds to order preventive detention and the procedural requirements under the NSA are essentially the same as under the notorious MISA..The government also amended the NSA in early 1984 to permit it to be used more aggressively in Punjab 4. There are several other laws like Unlawful Activities (Prevention) Act of 1967, which are not widely discussed, used to target political opponents, human rights defenders, religious minorities, Dalits and other "lower caste" individuals, tribal communities, the landless, and other poor and disadvantaged people.. 5. Police matters are governed primarily by the Police Act of 1861, which self-consciously followed the paramilitary model of policing that the British had established in Ireland. 6. Most notably, the Anarchical and Revolutionary Crimes Act of 1919, also known as the "Rowlatt Act," extended many of the government's draconian wartime powers into peacetime.Both the substantive provisions of the Rowlatt Act and the circumstances surrounding its enactment and ultimate lapse three years later foreshadowed issues that have arisen in recent years under TADA and POTA 7. Procedural rules under TADA departed from ordinary rules of evidence and criminal procedure. While ordinary law precludes admissibility of any confessions made to police officers, TADA provided instead that confessions to police officers could be admitted as substantive evidence as long as the officer's rank was sufficiently high; the confession was recorded; and the confession was "voluntary" 8. Considerable evidence suggests that in its application, TADA's sweeping powers were predominantly used not to prosecute and punish actual terrorists, but rather as a tool that enabled pervasive use of preventive detention and a variety of abuses by the police, including extortion and torture. *For example, of the 67,507 individuals detained under TADA as of August1994, 19,263 of them were in Gujarat—more than in Punjab, and in a state without any significant terrorism problem.* 9. Large numbers of individuals were detained under TADA, but only a miniscule fraction of them were ultimately convicted of anything. *Statistics reported by the government in October 1993 showed that only 0.81 percent of the 52,268 individual detained under TADA since its enactment had been convicted. In Punjab, the conviction rate was even lower: only 0.37 percent of the 14,557 individuals detained under TADA in Punjab were convicted. In August 1994 the Minister of State for Home Affairs reported that of the 67,059 individuals reported to have been detained under TADA since its enactment, only 8,000 individuals had been tried, of whom 725 individuals were convicted.81 For individuals arrested under ordinary criminal laws, by contrast, the conviction rate in 1991 was 47.8 percent.* Despite this low conviction rate almost all the victims had to pay heavily during their extended period of unlawful detention..Violations of the rights to be free from torture, cruel, inhuman, or degrading treatment or punishment, and compelled self-incrimination 10. Despite TADA's lapse IN 1995, the law has cast a long shadow. *Cases initiated while TADA was in force were not automatically dismissed, and even today the central and state governments still have authority to institute new cases based on allegations arising from the period when TADA was in effect. As of 1996, over 14,000 TADA cases were pending, and by 1999, almost 5,000 trials under TADA remained to be completed and over 1,300 cases were still being investigated*.As under TADA, the substantive bail standard under POTA presents a nearly insurmountable burden. If the prosecutor opposes bail, then for one year the court only may release the accused if there are reasonable grounds to believe that the accused is not guilty of the alleged offense and not likely to commit any offense while on bail 11. As with TADA, the Supreme Court upheld POTA's provisions authorizing confessions to police officers against constitutional challenge.114 While POTA is silent on whether confessions obtained under these provisions may be used to prosecute non-POTA offenses, whether charged together with the POTA violation or in a separate prosecution, the Supreme Court resolved a similar ambiguity under TADA in favor of permitting such confessions to be admitted in non-TADA offenses 12. While neither the Constitution nor international law per se requires the preclusion of voluntary confessions to the police, advocates have raised concerns that given the extensive, longstanding, and widely acknowledged problems in India with police torture and other violations of fundamental rights, relaxing the traditional rule increases the likelihood of torture, coerced confessions, and other abuses in violation of international human rights norms 13.The modified procedural rules governing cases before the special courts are essentially the same that applied before TADA's "designated courts." POTA affords the special courts discretion to conduct proceedings wherever they deem "expedient or desirable," including potentially prejudicial or intimidating locations such as the prison facility where the accused is detained. Upon an application by the prosecutor or a witness, or on its own motion, the court may conduct its proceedings in camera or take other steps to keep the witnesses' identities secret so long as it records its reasons in writing. The court also may try the accused in absentia and record the evidence of witnesses, subject to the right of the accused to recall witnesses for cross-examination. 14. In at least two states, Jharkhand and Andhra Pradesh, POTA has been widely used against individuals from Dalit, other lower caste, and tribal communities who ostensibly have been suspected of involvement with suspected insurgents, but who in fact appear to have been innocent of any terrorist involvement or, in many cases, even of any criminal wrongdoing at all.Like many Indian states, both states suffer from severe in-equality between semi-feudal "upper caste" interests and Dalit, other lower caste, and tribal communities 15. Police and other security forces have frequently violated the human rights of people from Dalit, other lower caste, and tribal communities in the name of their efforts to combat the Naxalites, raiding villages and engaging in extortion, looting, and arrests of individuals falsely accused of harboring Naxalites. The police also have frequently staged "false encounter" killings, shooting unnamed prisoners and sometimes photographing the corpses alongside planted weapons. At the same time, police and other officials not only have failed to prosecute the private militias of upper caste landlords, leaving them to engage in violence with impunity, but also at times have directly colluded with them—for example, by disrupting peasant organizing, training private militias, and accompanying militias during their raids on Dalit, other lower caste, and tribal villages 16. The use of POTA in Jharkhand was the object of sustained examination in early 2003 by a factfinding team of advocates from across the country and the news media. *The team found that approximately 3,200 individuals had been accused under POTA within the state as of February 2003—far more than in any other state in the country, including states with much higher incidences of terrorism such as Jammu and Kashmir*.Approximately 202 individuals had been arrested, including approximately ten minors; most of those arrested were farmers, students, or day laborers 17. In Andhra Pradesh, *POTA was not invoked at all in the first year after its enactment, but after that, approximately 50 cases were initiated, allegedly involving between 300 and 400 individuals as of March 2004*. Many of the individuals charged appear not to have been involved in any criminal activity at all, but rather have been targeted simply for their caste or tribal status alone. In other cases, the allegations against these Dalit, other lower caste, and tribal individuals under POTA appear to bear little relationship to terrorist or insurgent violence. Indeed, in Andhra Pradesh, the sheer* number of individuals killed in police "encounters"—approximately 1,200 individuals between 1996 and 2004*—casts doubt on the notion that the police have resorted to legal mechanisms, rather than counterinsurgency operations and encounter killings, to any significant degree at all when targeting suspected Naxalites. 18. In this context, *POTA has been wielded as a communalist instrument in several states. Hundreds of Muslims have been formally arrested or illegally detained for extensive periods in connection with cases pending under POTA*. I*n the immediate aftermath of the violence, the state government filed POTO charges against as many as 62 Muslims, including at least seven boys below the age of sixteen, who it accused of involvement with the Godhra fire, and illegally detained as many as 400 others without charge.While the POTO charges were quickly withdrawn in the face of sharp public criticism, ordinary criminal charges remained in place against these individuals, and approximately one year later the government retroactively filed charges under POTA against 121 individuals suspected of involvement in the Godhra incident. *19. *Despite the disproportionately high number of Muslim victims in the post-Godhra violence, no Hindus responsible for the post-Godhra violence have been charged under POTA at all*—even though POTA's broad and malleable definition of terrorism could have been applied to much of that anti-Muslim violence—and few have been charged under ordinary criminal law. the Gujarat police often have not simply applied POTA selectively against Muslims, but also have used the law to intimidate Muslim citizens from coming forward with evidence of police complicity in the organized post-Godhra violence. It has been reported that the police have unlawfully detained hundreds of young Muslims and threatened them with false charges under POTA if they did come forward. Indeed, after one key witness to a post-Godhra massacre came forward, not only did the state fail to bring charges against the perpetrators of that massacre, but they charged the witness himself under POTA. In this context, as one community leader put it, POTA became "a sword hanging over every Muslim in Gujarat." 20.* By March 2004, over 280 individuals had been charged under POTA in Gujarat, all but one of whom were Muslim.(the remaining one was a Sikh) .. These charges resulted in the detention of at least 189 individuals, the vast majority of whom were denied bail. *POTA also has been used in Andhra Pradesh to target Muslims accused of terrorism in Gujarat and other parts of the country. While the Andhra Pradesh police, based on their own investigations, have questioned the extent to which local residents have been involved in terrorism, at least *30 people from Andhra Pradesh have been arrested and transferred to Gujarat in connection with some of the POTA* conspiracies alleged in that state* * 21. In Gujarat, the police have threatened Muslims with charges under POTA in some instances simply to intimidate them from coming forward with information concerning police complicity with the post-Godhra violence 22. *In Jharkhand, POTA charges were brought against a 17- year-old young woman, Ropni Kharia, the only woman in her village to pass matriculation. The charges were brought in apparent retaliation for her resistance to patriarchal norms in her village and her work educating and encouraging others to do the same*; complaints were brought to the police about her supposed involvement with a banned organization by men in the community who were "worried about her knowledge and activities." Despite no evidence linking her to the organization, the police intimidated and beat her father and other family members and ultimately filed POTA charges against her 23. In several states, POTA charges have been filed against other youths below age eighteen, including some as young as ten. In some cases, these charges were brought to intimidate or retaliate against parents who were the real subjects of interest. 24. In Gujarat, the police have detained and taken many individuals into custody—in some cases for days or weeks—in connection with pending POTA investigations without formally arresting them, disclosing the basis for detention, or even documenting their custody or interrogation 25. *When the individuals sought by the police have not been available, the police have instead often taken family members (including minor children and elderly parents) into custody essentially as "hostages,*" to induce the individuals of interest to submit to police custody. This practice appears to have been particularly common in Gujarat, but individuals have been detained on similar bases in other states 26. Considerable evidence also suggests that individuals detained under POTA have been tortured and subjected to cruel, inhuman, or degrading treatment while in custody. These reports are consistent with the longstanding and well-documented concern that even in cases unrelated to allegations of terrorism, police in India routinely resort to torture, which has been described as the "principal forensic tool" of the Indian police 27. *Reports of torture have been documented throughout India, and have been particularly severe in connection with the POTA cases pending in Gujarat. *Although individuals have feared retaliation for coming forward with allegations against the police, examples of torture and cruel, inhuman, and degrading treatment have been extensively documented, including *severe beatings, use of narcoanalysis or "truth serum," use of electric shocks to the genitals and other parts of the body, and various forms of psychological abuse.* 28. In every state which the project participants visited, evidence suggests that the police have often coerced detainees (or in some cases their family members) to sign blank sheets of paper, which later could be filled by the police with a statement confessing or implicating someone else. Some have been forced to read statements while being audiorecorded or to memorize false statements to be recited later before a magistrate. Detainees also have been forced to cooperate in the creation of fabricated evidence, such as videos of the accused holding weapons in poses directed by the police. If detainees refused to cooperate, the police have threatened further detention or mistreatment of the detainees or their family members—and even have threatened that the detainees or their family members might be killed in staged encounters 29. When detainees have appeared before magistrates, the magistrates have not always scrutinized the circumstances of the individuals' arrest and detention closely.In one instance, a magistrate ordered the police to take a detainee who had been severely tortured to the hospital, but the police ignored that order and returned him to the jail without consequence. I*n other instances, magistrates have been complicit in the mistreatment, either directly intimidating detainees into confessing or, in at least one case, all but explicitly giving the police the green light to torture detainees further to obtain their confession* 30. Many individuals have been detained under POTA throughout the six month period within which the police may conduct its investigation and then simply released without charge upon the deadline for filing a charge sheet. For individuals who ultimately have been charged, examples of prolonged detention without bail beyond the six month period have been found throughout the country. 31. Among those individuals formally arrested in Gujarat under POTA, a large number have been refused bail, even after becoming eligible for the normal bail standard after one year in jail. As of August 2004, 172 individuals charged under POTA were in jail, while only 17 had been released on bail. In other states, the percentages of POTA defendants released on bail also have been low. For example, as of August 2004, only 11 of the 88 POTA accused in Maharashtra, 5 of the 36 POTA accused in Andhra Pradesh, 1 of the 29 POTA accused in Uttar Pradesh, and none of the 48 POTA accused in Delhi had been released on bail 32. In Gujarat, where very few individuals accused under POTA have been released, a police official admitted that POTA in part had been used against the Godhra accused "to forestall the possibility of more of the accused obtaining bail," as would have been possible under ordinary criminal laws. 33 Today the judiciary is under extreme tension to deal with any POTA case. In fact, our bail applications went before at least three Division Benches [of the Madras High Court]. Each Division Bench excused itself from hearing the case. They thought hearing the case also amounted to supporting POTA or POTA detenues 34. There also has been evidence of threats and intimidation against lawyers and human rights defenders who have sought to document human rights violations under POTA and defend individuals who have been detained or charged under the law. Under the U.N. Basic Principles on the Role of Lawyers, states have an obligation to ensure lawyers are able to perform their professional roles free from intimidation or other improper interference and to "adequately safeguard[]" them when their security is threatened. 35. While lawyers with whom the project participants met disagreed on the extent to which they or their colleagues have been threatened or abused, in Gujarat, in particular, several lawyers agreed with the assessment of one human rights organization that "*harassment and intimidation of human rights defenders working with members of the Muslim community in the state appears to be widespread.*" 36. *Muslims accused in the Godhra case have faced threats and intimidation for doing so, and Muslim lawyers in Gujarat have largely withdrawn altogether from representing individuals accused under POTA because of these threats*. Intimidation and pressure also has come from other lawyers. In Gujarat, a resolution considered by one of the lower court bar associations strongly discouraged attorneys from representing any Muslims charged in the Godhra case. As a result of these formal and informal pressures, the same small handful of lawyers—including lawyers from outside the state altogether—have tended to represent almost all of individuals accused under POTA in Gujarat. 37.Similarly, in the prosecution under POTA of four individuals charged with involvement in the 2001 attack on the Indian Parliament building— the first major prosecution under POTA—many lawyers were initially reluctant to represent the defendants at all, out of an unwillingness to be associated with the case. While an All-India Defense Committee to support one defendant, S.A.R. Geelani, ultimately drew support from many prominent Indian citizens, the level of intimidation and prejudicial media coverage associated with the case was very high. Indeed,* Geelani, who was acquitted by the Delhi High Court, was shot and seriously injured in February 2005 outside his lawyer's home and office, as he arrived to meet with her to discuss the government's then-pending appeal of his acquittal to the Supreme Court of India*. On Sun, May 18, 2008 at 10:04 PM, salimtk <[EMAIL PROTECTED]> wrote: > when the constitution is found insufficient to accomodate the new claims > of the unrecognized sections of people for their rights and spaces, it is > forced to be amended. penal codes have to revoked to recognize the existence > of third sex. > > when the people are deprived of limited constitutional rights by violent > acts like aFspa, setting up gunatanamo bay beside the book of constitution > and long cruel years of invalidating adivasi land restoration act, seeking > constitutional protection is a matter of survival. > > complete belief in constitution and imagination of a flawless execution of > it have nothing to do with the rights of the people. it is through people's > aspirations and struggles new political spaces and freedom come up to amend > and amend the constitutions and to question the supremacy of the state. > > On Sun, May 18, 2008 at 4:08 PM, Murali K Warier <[EMAIL PROTECTED]> > wrote: > >> > it is quite natural for the people who are socially, racially, >> politically and economically enjoying the rights within theconstitutional >> framework to uphold the 'holiness' of the constitution. >> >> Isn't it obvious that the socially, racially, politically and economically >> disadvantaged require the protections offered by the Constitution more than >> the well off? >> That should have been a no-brainer. >> >> Best regards, >> Murali. >> >> >> On Sun, May 18, 2008 at 4:13 PM, salimtk <[EMAIL PROTECTED]> wrote: >> >>> >>> -- >> >> ------------------------------------------------------------------------------------------------------------------------------- >> Liberty, if it means anything, is the right to tell people what they don't >> want to hear. >> > > > > > --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. 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