Colonial Continuities: Human Rights, Terrorism, and Continuities: Human Rights, Terrorism, and Security Laws in India ... V. Human Rights Concerns In The Administration of POTA ... Colonial Continuities: Human Rights, Terrorism, and Security Laws in India, ...
<ul><li><p>2 0 0 7 V O L. 6 2 , N O. 2</p><p>375</p><p>Colonial Continuities:Human Rights, Terrorism,and Security Laws in India</p><p>The Committee onInternational Human Rights</p><p>SummaryI. IntroductionII. Background</p><p>A. Police and Criminal Justice FrameworkB. Fundamental Rights and Criminal Procedure</p><p>III. Emergency and Security Laws Before 1980A. British Colonial Emergency and Security LawsB. Emergency and Security Laws From 1947 to 1975C. The Emergency and Its Aftermath</p><p>IV. Contemporary Antiterrorism LawsA. The Terrorist and Disruptive Activities (Prevention) ActB. The Prevention of Terrorism Act of 2002 andthe Aftermath of Its Repeal</p><p>1. Definitions of Terrorist Acts and Terrorist Organizations2. Pretrial Investigation and Detention Procedures3. Admissibility of Confessions to Police Officers4. Special Courts and Procedural Rules</p><p>378382391392393</p><p>398399400403</p><p>405406411</p><p>414417420421</p></li><li><p>T H E R E C O R D</p><p>376</p><p>5. Adverse Inferences and Presumptions of Guilt6. Judicial and Administrative Oversight7. Official Immunity</p><p>V. Human Rights Concerns In The Administration of POTAA. Arbitrary, Selective, and Non-Uniform EnforcementBy State Governments</p><p>1. Discrimination Against Dalit, Other Lower Caste, andTribal Communities2. Discrimination Against Religious Minorities3. Violations of Political Speech and Associational Rights4. Malicious Prosecution and Prosecution of Ordinary Crimes</p><p>B. Police Misconduct and AbuseC. Back Door Preventive DetentionD. Threats and Intimidation Against Lawyers</p><p>VI. Structural ConsiderationsA. Police Reform</p><p>1. Arbitrary, Politicized, and Discriminatory PoliceDecision-Making2. Accountability for Human Rights Violations</p><p>B. Effectiveness and Professional Capacity of theCriminal Justice System</p><p>VII. Role of the International CommunityA. Resolution 1373 and the Counter-Terrorism CommitteeB. Indian Antiterrorism Laws and Resolution 1373C. Human Rights Concerns</p><p>VIII. Conclusion and RecommendationsAppendixAcknowledgments and Chronology of Meetings</p><p>I N T E R N A T I O N A L H U M A N R I G H T S</p><p>423425428</p><p>429429</p><p>430</p><p>432436439441445449</p><p>451453454</p><p>456458</p><p>464464466469</p><p>473481</p></li><li><p>2 0 0 7 V O L. 6 2 , N O. 2</p><p>377</p><p>ACRONYMS AND OTHER REFERENCES</p><p>ABCNY Association of the Bar of the City of New York</p><p>AFSPA Armed Forces (Special Powers) Act, 1958</p><p>BJP Bharatiya Janata Party</p><p>CBI Central Bureau of Investigation</p><p>CTC U.N. Security Council Counter-Terrorism Committee</p><p>ICCPR International Covenant on Civil and Political Rights</p><p>LTTE Liberation Tigers of Tamil Eelam</p><p>MDMK Marumalarchi Dravida Munnetra Kazhagam</p><p>MISA Maintenance of Internal Security Act, 1971</p><p>NHRC National Human Rights Commission</p><p>NPC National Police Commission</p><p>NSA National Security Act, 1980</p><p>OHCHR U.N. Office of the High Commissioner for Human Rights</p><p>PDA Preventive Detention Act, 1950</p><p>PHRA Protection of Human Rights Act, 1993</p><p>POTA Prevention of Terrorism Act, 2002</p><p>POTO Prevention of Terrorism Ordinance, 2001</p><p>SIMI Students Islamic Movement of India</p><p>TAAA Terrorist Affected Areas (Special Courts) Act, 1984</p><p>TADA Terrorist and Disruptive Activities (Prevention) Act, 1985</p><p>TNM Tamil Nationalist Movement</p><p>UAPA Unlawful Activities (Prevention) Act, 1967</p><p>UDHR Universal Declaration of Human Rights</p><p>H U M A N R I G H T S, T E R R O R I S M A N D S E C U R I T Y L A W S I N I N D I A</p></li><li><p>T H E R E C O R D</p><p>378</p><p>SUMMARYIn 2004, India took a significant step forward for human rights by</p><p>repealing the Prevention of Terrorism Act of 2002, which had establisheda permissive set of legal rules to prosecute acts of terrorism largely outsidethe ordinary rules of the regular criminal justice system. While POTA itself</p><p>Colonial Continuities:Human Rights, Terrorism,and Security Laws in India</p><p>The Committee onInternational Human Rights*</p><p>* The Associations India Project is comprised of Anil Kalhan, Visiting Assistant Professor,</p><p>Fordham Law School (2006-present); Associate in Law, Columbia Law School (2004-06),</p><p>Chair, India Project, Committee on International Human Rights, Association of the Bar of the</p><p>City of New York, and author of this report; Gerald P. Conroy, Deputy Commissioner, Office</p><p>of the Special Commissioner of Investigation for the New York City School District, partici-</p><p>pant, ABCNY India Project; Mamta Kaushal, Associate, Wachtel & Masyr, LLP (2002-05),</p><p>Principal Coordinator, ABCNY India Project; Sam Scott Miller, Partner, Orrick, Herrington &</p><p>Sutcliffe LLP., Participant, ABCNY India Project; and Jed S. Rakoff, U.S. District Judge, U.S.</p><p>District Court for the Southern District of New York, Participant, ABCNY India Project.</p><p>This is an abridged report based on information learned during a 2005 visit to India by</p><p>members of the Committee on International Human Rights. Readers seeking greater detail and</p><p>more complete citations should refer to the unabridged version, which is available on the</p><p>Associations website and in the Columbia Journal of Asian Law. See Anil Kalhan, et al.,</p><p>Colonial Continuities: Human Rights, Terrorism, and Security Laws in India, 20 COLUM. J.</p><p>ASIAN L. 93 (2006), available at http://www.nycbar.org/pdf/ABCNY_India_Report.pdf. The</p><p>author of both versions is Anil Kalhan.</p><p>Muzaffar A. Chishti, Director of the Migration Policy Institute office at the New York</p><p>University School of Law, and Prita R. Jha, of the University of Manchester (U.K.), provided</p><p>invaluable assistance and cooperation to the project participants in Delhi and Ahmedabad,</p><p>respectively. For a complete list of those who generously made time to meet with the project</p><p>participants and helped make this project possible, see the Appendix.</p></li><li><p>2 0 0 7 V O L. 6 2 , N O. 2</p><p>379</p><p>was enacted in the aftermath of the major terrorist attacks of 2001 inboth the United States and India, the statute built upon a long traditionof antiterrorism and other security laws in India dating since well beforeindependence. While India has faced serious threats from terrorism andother forms of politicized violence for decades, these special laws havenot proven particularly effective in combating terrorism. Terrorism haspersisted as a problem notwithstanding these laws, under which few ofthe individuals charged have been convicted.</p><p>Moreover, like antiterrorism laws in other countries, including theUnited States, aspects of Indias antiterrorism laws have raised significanthuman rights concerns. Some of those concerns have remained even inthe aftermath of POTAs repeal, since the government has preserved manyof the laws provisions in other statutes. Other, similar laws also remainin place at both the central and state levels, such as the Unlawful Activi-ties (Prevention) Act. Attentiveness to these human rights concerns is notsimply a moral and legal imperative, but also a crucial strategic imperative.As the Supreme Court of India has recognized, [t]errorism often thriveswhere human rights are violated, and [t]he lack of hope for justice pro-vides breeding grounds for terrorism. Since terrorists often deliberatelyseek to provoke an over-reaction and thereby drive a wedge betweengovernment and its citizensor between ethnic, racial, or religious com-munitiesprotecting human rights when combating terrorism helps toensure that advocates of violence do not win sympathy from the ranks ofthose harmed and alienated by the state.</p><p>This report comprehensively examines Indias recent antiterrorism andother security laws, situating those laws in historical and institutionalcontext in order to (1) analyze the human rights concerns that arise fromthese laws and (2) understand the ways in which British colonial-era pat-terns and practices have evolved and been maintained after independence.The study is based on information learned during a visit to India by sev-eral members of the Committee on International Human Rights of theAssociation of the Bar of the City of New York. In 2005, at the invitationof colleagues in India, the project participants met over a two-week pe-riod with a broad range of individualslawyers, human rights advocates,scholars, prosecutors, judges, senior government officials, and individu-als detained or charged under Indias antiterrorism laws and their familymembersin Delhi, Hyderabad, Chennai, and Ahmedabad, in order tobetter understand the human rights implications of these laws and toidentify lessons from the Indian experience for countries facing similarchallenges, including the United States. The Committee has previously</p><p>H U M A N R I G H T S, T E R R O R I S M A N D S E C U R I T Y L A W S I N I N D I A</p></li><li><p>T H E R E C O R D</p><p>380</p><p>conducted projects examining similar issues in other countries, which havefacilitated efforts by members of the Association to build long-term rela-tionships to promote mutual respect for the rule of law and fundamentalrights. These visits also have helped to inform the Associations extensivework examining the human rights issues arising from antiterrorism initia-tives by the United States since 2001.</p><p>POTA and other Indian antiterrorism laws have raised a host of hu-man rights issues, some of which are similar to those raised by antiterror-ism laws in other countries, including the United States. Such concernsinclude:</p><p> overly broad and ambiguous definitions of terrorism that failto satisfy the principle of legality;</p><p> pretrial investigation and detention procedures which infringeupon due process, personal liberty, and limits on the length ofpretrial detention;</p><p> special courts and procedural rules that infringe upon judi-cial independence and the right to a fair trial;</p><p> provisions that require courts to draw adverse inferences againstthe accused in a manner that infringes upon the presumptionof innocence;</p><p> lack of sufficient oversight of police and prosecutorial deci-sion-making to prevent arbitrary, discriminatory, and disuniformapplication; and</p><p> broad immunities from prosecution for government officialswhich fail to ensure the right to effective remedies.</p><p>Enforcement has varied widely from state to state, facilitating arbi-trary and selective enforcement on the basis of religion, caste, and tribalstatus; violations of protected speech and associational activities; pros-ecution of ordinary crimes as terrorism-related offenses; and severe policemisconduct and abuse, including torture. In most states, prolonged de-tention without charge or trial appears to have been the norm, ratherthan the limited exception. As a result, to a considerable degree Indiasantiterrorism laws have functioned more as preventive detention lawsthan as laws intended to obtain convictions for criminal violationsbut without heeding even the limited protections required for preventivedetention laws under the Indian Constitution, much less the more ex-acting standards of international law. At times, human rights defend-</p><p>I N T E R N A T I O N A L H U M A N R I G H T S</p></li><li><p>2 0 0 7 V O L. 6 2 , N O. 2</p><p>381</p><p>ers who have challenged these violations or defended individuals ac-cused under the antiterrorism laws have faced retaliatory threats andintimidation.</p><p>Continuing a pattern established by the British, Indias antiterror-ism and other security laws have periodically been enacted, repealed, andreenacted in the years since independence. To some extent, this cycle de-rives from underlying weaknesses in Indias ordinary criminal justice in-stitutions. Even when they create distinct mechanisms and proceduralrules, Indias antiterrorism laws rely upon the same institutionspolice,prosecution, judiciaryused in fighting any serious crimes, and to theextent these institutions fail to protect human rights when enforcing or-dinary criminal laws, they are no more likely to do so in the high pressurecontext of fighting terrorism. At the same time, the impulse to enact spe-cial laws stems from real and perceived problems concerning the effective-ness of the regular criminal justice system itself, which create intense pres-sures to take particular offenses outside of that system. To break this cycleand fully address the human rights issues arising from Indias special an-titerrorism laws, it is therefore necessary to improve and reform the policeand criminal justice system more generally, both to protect human rightsmore adequately and to alleviate the pressures to enact special antiterror-ism and security laws in the first place.</p><p>While debate in India over its antiterrorism laws has been shapedprincipally by a domestic political context which has evolved over severaldecades, in recent years that debate also has been shaped in part by theU.N. Security Councils efforts to implement and enforce Resolution 1373,the mandatory resolution adopted after the September 11, 2001 terroristattacks under Chapter VII of the U.N. Charter. As human rights advo-cates have noted, the Security Council and its Counter-Terrorism Com-mittee have not been sufficiently attentive to human rights concerns intheir efforts to monitor states compliance with Resolution 1373. In someinstances, the Security Council and CTC appear to have directly enabledhuman rights violations by pushing states to demonstrate compliancewith the resolutions antiterrorism mandate without simultaneously makingsufficient efforts to ensure adherence with applicable human rights stan-dards. Aspects of that neglect can be seen in the role that Resolution 1373has played domestically in Indian public discourse and in Indias reportsto the CTC on its compliance with the resolution.</p><p>Independent Indias constitutional tradition is a proud one. In com-bating some of the most serious terrorist threats in the world, a durable,enduring, and ever-improving commitment by India to protect funda-</p><p>H U M A N R I G H T S, T E R R O R I S M A N D S E C U R I T Y L A W S I N I N D I A</p></li><li><p>T H E R E C O R D</p><p>382</p><p>mental rights can serve as an international example. And in recent years,the Indian government has taken several positive steps to limit the use ofits antiterrorism laws and to renew its efforts to transform its colonial-erapolice and criminal justice institutions. Following the July 2006 bombblasts in Mumbai, the Indian government also wisely chose not to enactnew draconian legislation to replace POTA, emphasizing instead the needto upgrade its intelligence and investigative capacity to prevent acts ofterrorism and hold perpetrators accountable.</p><p>To protect human rights and advance both the rule of law and long-term security, we urge the Indian government to maintain and build uponthese recent positive steps. Part of these efforts may require the centralgovernment to develop mechanisms that provide for greater administra-tive and judicial oversight of investigative and prosecutorial decision-making,and transparency in that decision-making, to ensure nationwide unifor-mity and adherence to fundamental rights. Mechanisms for citizens toseek redress and hold government officials accountable for abuses shouldbe improved. While broader efforts to reform the police and judiciaryhave proven elusive, such reforms will be essential in seeking to eliminatethe human rights concerns that arise under antiterrorism laws and, in-deed, in many i...</p></li></ul>