via: www.sacw.net
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[1] India: Protest against POTA
[2] India: Censor scissors spare riot film (Chandrima S. Bhattacharya)
[3] India: Armed Forces Special Powers Act in Manipur (Sriram)
[4] India: Prevention of Terrorism Act (Pota) Repeal Ordinance - Myth and Reality (Rajindar Sachar)
[5] India: Who Attacked the Parliament? (Nirmalangshu Mukherji)
[6] India: Civilians and Localisation of Conflict in Assam
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[1]
The Hindu, 8 October 2004
http://www.hindu.com/2004/10/08/stories/2004100815550300.htm
Protest against POTA
By Our Staff Reporter
NEW DELHI, OCT. 7. Demanding a retrospective repeal of the Prevention of Terrorism Act (POTA), concerned citizens and families of those booked under the Act staged a protest march on Parliament Street here today.
Shouting slogans such as "Hindu-Muslim bhai-bhai, Phir beech mein POTA kahan se aaya'', the group demanded that all those booked under POTA should not face trial under the provisions of the "Draconian act". "How does the repeal of POTA help my family or me? My husband was booked under POTA in April 2003. And today, even after its repeal he is still booked under it. Even though these people have said that this is a Draconian act, there is no relief for those booked under the Act. I am hoping that something works out,'' said Nazia Nisar Ahmed Sheikh, a resident of Kalupur, near Ahmedabad in Gujarat.
Social activist Zakia Jowher from Gujarat Janandolan, added, "Why did they repeal POTA when it was about to lapse anyway? The Congress has repealed the Act before the Maharashtra elections so that they would get votes. The Congress should stop betraying the Muslims."
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[2]
The Telegraph - October 08, 2004
CENSOR SCISSORS SPARE RIOT FILM
Chandrima S. Bhattacharya
Mumbai, Oct. 7: The Censor Board made a complete turnaround today and cleared Final Solution, a film on the aftermath of the Gujarat riots, without any cuts.
In August, the board had rejected the internationally acclaimed film, made by Rakesh Sharma, on the ground that it could incite communal flare-ups. Sharma had appealed to the board to send the film for a review.
The film was shown today to the high-profile revising committee comprising Censor Board chairperson Anupam Kher, filmmaker Shyam Benegal, activist Teesta Setalvad, theatre personality Dolly Thakore and filmmaker Ashok Pandit, who said it could be released without any change.
Kher said the documentary was a "testament of history" and "a very well-made film". It was passed unanimously by the revising committee.
Rejecting the documentary, the Censor Board had previously said "the film promotes communal disharmony among Hindu and Muslim groups and presents the picture of Gujarat riots in a way that may arouse communal feelings and clashes. Certain dialogues involve defamation of individuals. The entire picturisation is highly provocative".
Final Solution shows Gujarat chief minister Narendra Modi and VHP leader Praveen Togadia campaigning before the Assembly polls, inciting Hindu crowds with inflammatory speeches against Muslims.
The film has won the prestigious Wolfgang Staudte Award at the Berlin International Film Festival, where it also won the Special Jury Award. But the Censor Board took more than a year in arranging for the screening of the film to one of its committees, then refused to give it a censor certificate.
Sharma said it was major victory for his film and the battle against censorship. "Documentaries should not require censor certificates at all."
Hope for 9/11
Fahrenheit 9/11, the controversial film on George W. Bush that got stuck at the Censor Board here, is also likely to be cleared soon. "The review committee will come to a decision on Saturday," said Kher.
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[3]
www.sacw .net | October 6, 2004 URL: http://www.sacw.net/hrights/sriram08102004.html
ARMED FORCES SPECIAL POWERS ACT IN MANIPUR by Sriram
When one observes the manner in which colonizing nations of the past and present flex their oppressive muscles under veils of righteousness, one is boggled at the consistency that is imbibed in imperialism. Whether it was educating savages in the 1850s, stemming the red tide in the 1960s or liberating Iraqis in 2004, it all boils down to the same neo-colonial machinery preceded and succeeded by bogus rhetoric. Words like freedom, liberation, and patriotism now more than ever are bandied about by the haves in order to further oppress the have-nots.
And when one observes leviathan developing countries like India, there's not too much of a difference, save one�where colonial nation-states of the West conducted and continue to conduct mass human rights violations outside of their borders, the Indian government and elite gleefully do so within their own borders. Whether it is oppression of minorities by state-supported fundamentalist groups like the Bajrang Dal and Ranvir Sena, or human rights abuses perpetrated by the state itself in Kashmir and the North East, the flow of blood and the disenfranchisement of the victims is one and the same.
India has had and continues to have a veritable spectrum of draconian laws that are supposedly aimed at stopping terrorism. Maintenance of Internal Security Act (MISA), Terrorist And Disruptive Activities (Prevention) Act (TADA), Prevention Of Terrorism Act (POTA), the Disturbed Areas Act (DAA), the Armed Forces Special Powers Act (AFSPA)�each, when implemented result in the oppression of the most under-privileged members of our society. The latest in a long list of human rights abuses under the benign gaze of the state and central government was the custodial death of Thangjam Manorama resulting in wave after wave of protests, both violent and peaceful, in Manipur where the AFSPA has been enforced for 24 years till date. 24 years of oppressing a region and a people who had long been discarded by the central government from the Indian mainstream.
The wording of the AFSPA enacted by Parliament in 1958 is indeed blood curdling to even read let alone act out. The act states that any commissioned officer, warrant officer, non-commissioned officer or person of equivalent rank in a disturbed area may fire upon or use force even to the point of causing death if he is of the opinion that it needs to be done to maintain public order. He may arrest, without a warrant, any person against whom a reasonable suspicion exists and may use the above mentioned force to effect the arrest, as well as enter and search without warrant any premises to make any such arrest or if reasonable suspicion exists. Any person arrested under this Act is to be taken to the nearest police station and placed in custody without any delay. If this weren't enough already, the Act gives sweeping immunity to anyone acting under it. It states verbatim "Protection to Persona acting under Act: No persecution, 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."
It does not take a sociopolitical genius to figure out that the very wording of the Act itself begets heinous misuse. When one considers it in tandem with a corrupt state and police machinery, as is the case in many parts of India, the human rights violations sky rocket upwards.
All the other laws mentioned above are regurgitated versions of one another. The Indian Government seems to have a periodic revisit to it's legitimized mechanism of oppression in order to repeal one law and fortify it with yet another law, more draconian and heinous than it's predecessor, all meant to quell "terrorism" and "threats to national unity"�with tragicomically abysmal results. First there was the Preventive Detention Act passed by Parliament in 1950 in the bloody aftermath of Independence and Partition to curb activity that was perceived as a threat to national unity. This Act expired in 1969 and was quickly replaced by MISA in 1971, primarily used to curb the Naxalbari uprisings, which in effect meant persecuting and killing leftists, trade unionists and poor peasants. In 1958 the AFSPA was passed and remains un-repealed and very much in use in Kashmir and the Northeast. The AFSPA and MISA were soon followed by TADA in 1985, and despite both MISA and TADA being repealed, thousands of innocents have been detained under TADA and continue to remain till date as under-trials, facing horribly trying conditions of malnutrition, torture and, many a time, custodial killings. After MISA and TADA came and went, 2002 signaled the arrival of the one act that could match the AFSPA in its lethality, and that was POTA, which was used by the BJP Government to rigorously oppress Muslims in various parts of India.
Did I once hear something about India being a democracy?
There is plenty of justification and rationalization from the Indian Government, army and police as to the need for these acts. It is often argued that these laws are needed to fight terrorism and maintain law and order. Soon the rhetoric to follow is the same pseudo-patriotic dribble.
While it appears that there is a very vague element of truth to the rationalization offered by the government, and seems to follow the means vs. end argument, what is often overlooked is that even these extreme, draconian means with the usage of laws like the AFSPA is flawed and corrupt. What then results is a scenario where the end is still as far away as it always has been, if not further, and the means employed by the state is causing the complete collapse of civil society and fundamental human rights. This is so, because even if by some astonishingly myopic stretch of logic this argument given by the government is bought, the very fact that there are absolutely no rigorous justice mechanisms for members of the police or army who misuse this act, proves that this is flawed logic, and that the government is only using these Acts to oppress those who don't fall within the mainstream setup.
It is high time that the Indian Government, and many other nations for that mater, realized that reactive measures of force could never achieve the sustained development of a stable and strong civil society that proactive measures of peace and dialogue can. How can the government hope to bring peace and stability to Jammu and Kashmir or the Northeast if they continue to station hundreds of thousands of soldiers without any plan for troop-reduction? How can the government consider itself one for the people if there is no sustained grievance-addressing dialogue with the people of these troubled regions?
Instead we have macho rhetoric and custodial deaths.
The State can't offer the rationale that terrorist groups flourish, when it has done next to nothing to address the fundamental needs of the people in these same areas, in fact further marginalizing them every step of the way. Instead of escalating the confrontation with militant groups, the government would probably do a lot better by giving them a reason to not exist, and furthermore give the people of those regions a reason to not join or support these groups. When family members are killed, the youth are enraged and want revenge and secession from a government that oppresses them periodically.
And why not? If a government provides nothing of what it is supposed to provide to its citizens, and above that willingly oppresses them, who wouldn't want to secede and participate in an armed struggle. For ever Manorama who is killed in custody, there will be many more pushed towards the extreme step of arming themselves because of that death, and indeed that rage is well justified.
In the Northeast the government would do well to conduct dialogue not just with militant groups but also with the people residing there, the ones who are the most disenfranchised. Rigorous, proactive efforts have to be made to bring them into the Indian mainstream. For those who do not wish to be a part of India, the government should engage in constructive dialogue that is not based on blind ideologies of national unity, and preservation of borders, but rather based on what is best for the people. In a functioning democracy, people have the right to claim secession as long as human rights aren't trampled upon. And one can safely say that if the Indian Government were to provide their own citizens in the Northeast with proper socioeconomic development, and not marginalize then, the number of people wanting to claim secession would reduce quite drastically. One of the first steps to doing that is to repeal draconian laws like the AFSPA that condemn the whole state and the people residing in it. No doubt, terrorism has to be battled but it has to be done while upholding the constitution�a constitution that considers all citizens of India as equal, regardless of race, gender, religion, caste or creed. Instead of enacting one draconian law after another, why not improve the existing state and police machinery that indeed has strong laws to prevent genuinely criminal activity?
Just as important, everyday people in India who don't bear the brunt of these laws, have to look beyond government propaganda on supposed "terrorist " groups, and truly support and fight for the ones who are oppressed and upon whom human rights violations are perpetrated. Every Manorama in every part of India is our sister, brother and comrade. If we don't fight for them, we've lost the fight for ourselves�because we are them.
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[4]
www.sacw.net | October 7, 2004 URL: http://www.sacw.net/hrights/RSachar07102004.html
PREVENTION OF TERRORISM ACT (POTA) REPEAL ORDINANCE - MYTH AND REALITY by Rajindar Sachar (*)
A rose will smell the same by any other name, while Prevention of Terrorism Act (POTA) 2004, will stink by any other name, I am reminded of this by the cosmetic exercise of UPA Government in purporting to repeal POTA - but ironically providing at the same time that notwithstanding the repeal any investigations, legal proceedings may be instituted, continued, enforced and any penalty or punishment may be imposed as if the said Act had not been repealed. Put simply, it means that all action taken by NDA Govt. and even false cases instituted against Muslims in Gujarat have been given the cloak of legality permitting Narender Modi to continue to harass the minorites. At present the position is that 217 cases (involving 1600 persons) are being investigated under POTA and 116 of them are being tried (involving 500 people). Many of them are in jail for over 2 years but the trial has not yet even commenced. What does one now tell them that UPA Govt. though proclaiming its opposition to POTA in the past now feels that all pending cases should continue to be tried subject to being reviewed by Central Review Committee, (which was set up by NDA Govt.) and until it finds in favour of detenues they must remain in jail. What a demonstration of UPA Govt. of its secular commitment and safeguarding of civil liberties at the threshold of its governance. What prevents UPA Govt. straightaway to withdraw all cases considering the immediacy shown in withdrawing the case against Raja Bhaiya of UP, even when POTA was in existence.
A large number of objectionable features of POTA have been retained by the not so clever exercise of amendments made in Unlawful Activities (Prevention) Act, 1967 Ordinance 2004.
The blanket power to the Govt. to declare any association as terrorist has been retained but the remedy in the Unlawful Activities (Prevention) Act, 1967 to have the matter inquired by a sitting judge of High Court on facts has been dispensed with by providing for limited jurisdictional remedy by a Review Committee consisting of a majority of officials though headed by a sitting or a retired High Court Judge. The definition of unlawful activity is common to both 1967 Act and the Amendment Ordinance to mean an association which either by words spoken or otherwise acts so as to disrupt the sovereignty and integrity of India. The offence being the same but the remedy being less favourable under the Ordinance as against that provided under 1967 Act, no court can uphold such patent discrimination and the unfettered power of Central Government to pick and choose between two associations accused of the same crime. Such action is totally illegal.
By Section 7 of Amendment Ordinance, new Chapter IV, V, VI and Schedule of POTA have been bodily lifted from the repealed POTA and incorporated in 1967 Act. The result is that terrorist organization declared by NDA Govt. are accepted and continue to be so as such by UPA Govt. to be terrorists. Is it not tragically amusing that the governmental mantle makes fiercast opposing political parties think and behave in the same manner against common citizens.
There has been so much clumsiness in drafting that though provisions of admissibility of evidence collected through interception of wire, electronic has been bodily lifted from POTA but the procedural safeguards put in POTA (which in fact were necessitated under compulsion of judgment earlier given jn PUCL case filed by us challenging telephone tapping). The Supreme Court though it upheld the legality of telephone tapping but subject to certain safeguards. Unexplainably these safeguards have been omitted. Further clumsiness that while incorporating a requirement of the order of competent authority permitting interception to be supplied to the accused before trial, the definition of "competent authority" given in POTA has been omitted - the result is to make this provision unworkable because no interception can be legally done unless with prior authorisation by competent authority, and as no competent authority has been provided by the Ordinance any interception will be illegal and inadmissible - the whole purpose of this provision will remain a dead letter. Moreover, in POTA there was a review committee formed to review the order of competent authority. This also is omitted in Amendment Ordinance.
I do not know what is the thinking of Govt. in omitting this Chapter. As the Supreme Court upheld the power of interception subject to safeguards so as to comply with the requirement of Article 19 (Right of Privacy), the deletion will make all such interceptions unconstitutional and inadmissible. It is to be noted that without such safeguards, the power of the Govt. to abuse this power was so prevalent that Govt. agencies used to intercept communications of even former Prime Ministers and Central Ministers as noticed in PUCL case. Does UPA Govt. wish to go back to such arbitrary police powers.
A very objectionable feature in POTA of permitting the court to keep the identity of witness secret has been retained and incorporated as such in Amendment Ordinance. Such a provision has been held to be unconstitutional by Inter American Human Right Court and evidence thus obtained is not admissible. Even the Supreme Court has accepted in PUCL case challenging POTA that keeping secret the identity of witness is a deviation from the usual mode of trial - but still Amendment Ordinance retains this provision thus denying fair trial to the accused, the very accusation made against the provision in POTA by the UPA Constituents.
Of course, credit must be given to the Government for keeping inadmissibility of confession before Police in the same way as general law of the land but then again it will not benefit the existing detenues who will continue to be governed by objectionable law of POTA which the Govt. itself feels denies safeguard to the detenues to defend himself/herself.
No credit need be taken by the Government in purporting to suggest accused can apply for bail in the first year. This position was laid down by the Supreme Court while disposing the PUCL case challenging POTA that even under POTA it was open to the accused to apply bail in first year. As a matter of fact, the Central Government had conceded this position before the Supreme Court. No relaxation has therefore been made and the Government cannot take any kudos in this behalf.
How clever you may try to become but reality will always catch up with you is an ancient maxim but Governments continue to ignore it at their peril.
[ * Rajindar Sachar A-19, New Friends Colony, Chief Justice (Retd.) New Delhi - 110 065 (India) High Court of Delhi, New Delhi UN Special Rappoetuer on Housing E-Mail:[protected] Member, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities (Ex.) Fax: 091-011-26313393 President, Peoples Union for Civil Liberties (PUCL) India (Ex.) ]
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[5]
www.sacw.net | October 8, 2004
WHO ATTACKED THE PARLIAMENT?*
by Nirmalangshu Mukherji Department of Philosophy Delhi University
[September 30, 2004]
On 13 December 2001 at about 11.30 A.M. five armed persons entered the Parliament complex in New Delhi in a white Ambassador car when the Parliament was in session. On being challenged near the cavalcade of the Vice-President of India, they opened fire. In the exchange of gunfire that ensued, all five persons died on the spot before they could enter inside the Parliament building. Nine other people, including some members of the security forces, died in the attack while sixteen persons from the security forces were injured. A much larger catastrophe was barely averted. In terms of the scale of the attack and its symbolic significance, it was perhaps the most daring terrorist attack on the Indian soil in recent years.
The attack led to the adjournment of the winter session of the parliament sine die; the nation had to spend over rupees one hundred crores to reinforce the security of the parliament complex. Holding Pakistan responsible for the attack, the government mounted a massive military offensive that brought India and Pakistan to the brink of war with fingers on the nuclear trigger. Prior to the attack, the central government failed to get the draconian Prevention of Terrorism Act (POTA) passed in the parliament despite repeated efforts. After the attack, the Prevention of Terrorism Ordinance (POTO) was duly converted to an Act in a joint session of the parliament. As Noam Chomsky put it in the context of 9/11, "The authentic threat of terrorism," was sought to be exploited "as a window of opportunity for intolerable actions."
December 13 was India's 9/11 on other counts as well. Both led to a sense of helpless fear and to heightened prejudice against the Muslim community. In the Indian case, these factors, coupled with the enactment of POTA and the prospect of an imminent war with Pakistan, plunged the nation virtually into a state of emergency. Arguably, this enabled the government to divert the attention of the nation away from a series of scams and electoral defeats. As witnessed in the Gujarat elections that followed, the fear and the prejudice already generated by 9/11 grew rapidly after the parliament attack and drove people to huddle under state power, as elsewhere in the world. Ironically then, even though the terrorists failed to destroy the parliament building itself, their action left a gaping hole in Indian democracy.
Given the grave outcome, it is natural to ask: who attacked the Parliament? What exactly was the conspiracy? How could the attackers nearly succeed in blowing up the building itself? What are the domestic and international ramifications of this event? What steps have been taken to bring the real perpetrators to justice? Unfortunately, there are no direct official answers to these questions since the government never ordered a public inquiry or tabled a white paper on the topic.
Nevertheless, the answers may be indirectly obtained as follows. The attack on the parliament appears to be a singular exception to terrorist acts which are usually shrouded in mystery. The Delhi police claimed to have shot down all the terrorists, numbering five, on the spot. The terrorists not only did not blow themselves up, they left behind a thick trail of unused arms and ammunition, mobile phones supposedly used during the attack, addresses, phone numbers, and much else. Within days, the Delhi police traced and arrested four alleged local conspirators: Mohd. Afzal, Shaukat Hussain Guru, Afzan Guru, and S. A. R. Geelani. Afzal allegedly identified the dead terrorists, the hideouts, and the shops from where chemicals, mixer, the attack vehicle etc. were purchased. Finally, the police pieced together the entire story from the confessions made by Afzal and Shaukat. With the help of an obliging media, the Delhi police announced to the nation within a week that the case has been solved.
The case went on trial in 2002 in the Designated Special Court for POTA in Delhi and a judgment upholding the prosecution's case was delivered within months. The judgment was sent to the High Court which also delivered its judgment on October 29 last year. As per law, the Courts were not formally assigned the task of explaining the event; their only task was to decide whether the prosecution's case against the accused was valid. However, the four accused were not charged for taking offensive part in the attack; they were charged only with conspiring, planning and abetting the attack. Therefore, by proving the role of the accused in the conspiracy, the prosecution has deemed to have shown, at least in a broad outline, which terrorist acts and waging of war were planned and executed by whom. In other words, the proof of guilt in this case is also an explanation of the event. By parity of reason, if there are doubts about the proof, the explanation of the event remains incomplete to that extent.
The court judgments and the related material are the only official documents available to citizens who are anxious to learn the truth about the gruesome attack on the Indian Parliament. In the absence of any other official paper, we are thus compelled to enter into an unfamiliar territory. We have no opinion on questions of law, admissibility of evidence and the propriety of verdicts; needless to say, we do not judge the guilt or the innocence of the accused. As the angle and style of presentation of this study will show, our only concern is to examine whether the legal pronouncements contain a plausible explanation of the attack on Indian democracy.
Moreover, we are aware that the Parliament attack case currently rests with the Hon'ble Supreme Court of India. We have no intention or interest in interfering with the judicial process; if anything, our intention is to co-operate with it. As emphasized, we will be exploring aspects (viz., the aspects of truth and coherence) of the events leading up to the attack on the Parliament that do not even directly fall under the jurisdiction of the courts; they fall under the jurisdiction of an inquiry commission that was never constituted. In that sense, we hope that our effort will be seen as supplementing the judicial process, rather than confronting it.
As we will see, the story presented by the prosecution has too many grey areas to be credible. In fact, most of the doubts arise from a careful study of the High Court judgment itself. This is not to deny the possibility that it was indeed a genuine terrorist attack, perhaps masterminded by some terrorist organization across the border. Our only claim is that the story that appears in the court documents does not enable us to draw any inference either way. [...].
[Full Text at: http://www.sacw.net/hrights/Nirmalangshu30092004.html ]
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[6]
Economic and Political Weekly, October 2, 2004
Civilians and Localisation of Conflict in Assam
The findings of a participatory research project on the impact of armed violence on civilians living in Nalbari district of Assam.
[Full Text at:
http://www.epw.org.in/showArticles.php?root=2004&leaf=10&filename=7755&filetype=pdf ]
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