Analysis by Praful Bidwai | Inter Press Service
NEW DELHI, Dec 19 (IPS) – Following the late November terror attacks in Mumbai, India has passed two tough laws being seen by rights activists as potentially eroding the country’s federal structure and limiting fundamental liberties.
Parliament — meeting under the shadow of the November 26-29 attacks on India’s commercial hub resulting in close to 200 deaths — approved the legislations on Thursday with no considered debate and the ruling United Progressive Alliance (UPA) of Prime Minister Manmohan Singh pushing them past amendments tabled by several parliamentarians.
One law, the National Investigation Agency (NIA) Act, seeks to establish a new police organisation to investigate acts of terrorism and other statutory offences.
The other, the Unlawful Activities (Prevention) Amendment (UAPA) Act, radically changes procedures for trying those accused of terrorism, extends the periods of police custody and of detention without charges, denies bail to foreigners, and the reverses the burden of proof in many instances.
Civil liberties activists and public-spirited citizens are appalled at the new laws, which they describe as draconian and excessive in relation to the measures India really needs to take to fight terrorism.
“The UAPA Act is particularly vile, and will have the effect of turning India into a virtual police state,” says Colin Gonsalves, executive director of the Delhi-based Human Rights Law Network. “It basically brings back a discredited law, the Prevention of Terrorism Act of 2002 (POTA), except for admitting confessions made to a police officer as legal evidence.”
POTA was an extremely unpopular law, which the UPA government abrogated upon coming to power in 2004 in response to innumerable complaints of its selective and discriminatory use against India’s Muslim minority, and its cavalier and irresponsible application to offences not even remotely connected with terrorism.
While rescinding POTA, the UPA kept in place all of India’s criminal laws, which are much stricter than those in many democracies.
In addition, it also enacted an amendment to the Unlawful Activities Act, 1967, which increased punishment for committing acts of terrorism and for harbouring terrorists or financing them, enhanced police powers of seizures, made communications intercepts admissible as evidence, and increased the period of detention without charges to 90 days from the existing 30 days.
However, this was not enough to please those who want a “strong” militarised state which will prevent and punish terrorism by violating the citizen’s fundamental rights, including the right to a fair trial, and not to be detained without charges.
India’s main right-wing political group, the Bharatiya Janata Party, has been stridently demanding that POTA be re-enacted. Until recently, the UPA, the Left and other centrist parties stood firm in rejecting the demand despite the numerous terrorist attacks that India has suffered over the past few years.
“But now, the UPA has suddenly, and shamefully, caved in to the BJP’s demand under the pressure of elite opinion,” says Jairus Banaji, a highly regarded Mumbai-based social scientist. “The capitulation seems to be based on the UPA’s anxiety to counter the BJP’s ridiculous charge that it lacks the will to fight terrorism, and on its political calculations about the next general election due by May.”
In its desperation to be seen to be taking a tough stand against terrorism, the Manmohan Singh government also tabled the NIA Bill earlier this week. The new agency will specifically investigate offences related to atomic energy, aviation and maritime transport, weapons of mass destruction, and Left-wing extremism, besides terrorism.
Significantly, it excludes Right-wing terrorism, which has become a greater menace in India.
Unlike the existing Central Bureau of Investigation, which needs the consent of a state before investigating crimes there, the NIA will not need a state’s concurrence. This is a serious infringement of the federal system, where law and order is a state subject.
Many state governments and regional political parties have sharply criticised the Act on this count. In India, Central agencies are politically vulnerable to manipulation by New Delhi and often used to settle scores with states ruled by opposition parties.
The NIA Act also provides for special courts to try various offences. This too has drawn criticism from eminent lawyers such as Rajeev Dhavan, who argues that the potential misuse of this anti-terror legislation will now “come from both the states and the union, which can hijack the case”.
The UAPA Act contains a number of draconian clauses, and is also applicable to the entire country — unlike the Unlawful Activities Act, which was originally not extended to the strife-torn state of Jammu and Kashmir. This too has drawn protests from Kashmir-based political parties and human rights groups.
The stringent clauses cover a broad range, including a redefinition of terrorism, harsh punishment extending from five years’ imprisonment to life sentence or death, long periods of detention, and presumption of guilt in case weapons are recovered from an accused person.
The new definition now includes acts done with the intent to threaten or “likely” to threaten the unity, integrity, security or sovereignty of India, and offences related to radioactive or nuclear substances, and even attempts to overawe, kidnap or abduct constitutional and other functionaries that may be listed by the government. Dhavan says: “The list is potentially endless.”
Under the Act, an accused can be held in police custody for 30 days, and further detained without charges for 180 days, although courts can restrict the period to 90 days.
“This is a travesty of constitutional rights and the rule of law,” says Gonsalves. “Even worse is the presumption of guilt in case there is a recovery of arms, explosives and other substances, suspected to be involved, including fingerprints on them. The police in India routinely plants such arms and explosives, and creates a false record of recovery.”
“The very fact that offences such as organising terrorist training camps or recruiting or harbouring terrorists carry a punishment as broad as three or five years to life imprisonment shows that the government has not applied its mind to the issue,’’ Gonsalves added.
Under the Act, there is a general obligation to disclose any information that a police officer of a certain rank thinks is relevant to the investigation. Failure to disclose information can lead to imprisonment for three years. Journalists are not exempt from this.
Besides making telecommunications and e-mail intercepts admissible as evidence, the Act also denies bail to all foreign nationals, and mandates a refusal of bail to anyone if a prima facie case exists, which is decided on the basis of a First Information Report filed by the police.
POTA and its predecessor, Terrorist and Disruptive Activities (Prevention) Act (TADA), were extensively abused. They typically targeted the religious minorities, specifically Muslims, and allowed for their harassment and persecution.
The TADA story is especially horrifying. Some 67,000 people were arrested under it, but only 8,000 put on trial, and a mere 725 convicted.
Official TADA Review Committees themselves found the law’s application untenable in all but 5,000 cases. In 1993, Gujarat witnessed no terrorism, but more than 19,000 people were still arrested under TADA.
Religious minorities were selectively targeted under both Acts. For instance, in Rajasthan, of 115 TADA detainees, 112 were Muslims and three Sikhs.
Gujarat had a worse pattern under POTA, when all but one of the 200-plus detainees were Muslims, the remaining one a Sikh.
The passing of the two new laws is certain to increase the alienation of India’s Muslims from the state. They have been the principal victims of India’s anti-terrorism strategy and activities in recent years.
Muslims are first to be arrested and interrogated after any terrorist incident, even when the victims are Muslims, and although strong evidence has recently emerged of a well-ramified pro-Hindu terrorist network, in which serving and retired army officers were found to be key players.
Muslims also distressed at the alacrity and haste with which the new laws were passed, especially since it contrasts with the UPA government’s failure to enact a law it promised five years ago to punish communal violence and hate crimes targeting specific religious groups.
“This will pave the way for more disaffection amongst Muslims and make the social and political climate more conducive to terrorism,” argues Gonsalves. “Even worse, it will promote excesses of the kind associated with state terrorism. And that is no way to fight sub-state terrorism.”
The Unfortunate, the Innocent and the Wrongly Convicted in the United States
December 22, 2008Country Without Mercy
PAUL CRAIG ROBERTS | Counterpunch, Dec 19 – 21, 2008
The Christmas season is a time to remember the unfortunate, among whom are those who have been wrongly convicted.
In the United States, the country with the largest prison population in the world, the number of wrongly convicted is very large. Hardly any felony charges are resolved with trials. The vast majority of defendants, both innocent and guilty, are coerced into plea bargains. Not only are the innocent framed, but the guilty as well. It is quicker and less expensive to frame the guilty than to convict them on the evidence.
Many Americans are wrongfully convicted because they trust the justice system. They naively believe that police and prosecutors are moved by evidence and have a sense of justice. The trust they have in authorities makes them easy victims of a system that has no moral conscience and is untroubled by the injustice it perpetrates.
Lt. William Strong, son of a military family, tired of his wife’s unfaithfulness and filed for divorce. The unfaithful wife retaliated by accusing Strong of rape. There was no evidence of rape, but Strong was deceived into a plea bargain. Once Strong entered a plea, he was double-crossed and given 60 years.
Christophe Gaynor took an adolescent skateboard team to New York City for a competition. One of the kids attempted to buy illicit drugs. Gaynor threatened to tell the boy’s parents, and the boy pre-empted Gaynor by accusing him of sexual molestation.
Gaynor was openly framed in the Arlington, Virginia, court system.
Americans, or, perhaps more accurately, some Americans, were horrified by the photographs showing the torture of Iraqi detainees in Abu Ghraib by the U.S. military. The Senate Armed Services Committee has issued a report, which concludes that the torture policy originated at the highest level of the Bush administration. Those Americans with a moral conscience have reeled under further revelations – the torture of Guantanamo detainees, the transport of people seized by U.S. authorities to Third World countries to be tortured.
We have to ask ourselves, why American service men and women and CIA operatives delight in torturing people about whom they know nothing? It has been well known since the Stalin era that torture never produces accurate information. Yet, U.S. soldiers and CIA personnel jumped at the green light given to torture by President George W. Bush, Vice President Dick Cheney, Secretary of Defense Rumsfeld, and the U.S. Department of Justice. Why weren’t our soldiers shocked instead at the immorality of their leaders?
One answer is that the U.S. military no longer operates according to a code of honor. Military discipline in the traditional sense does not exist. The ethos of the U.S. military has degenerated into kick-ass macho. Major General Taguba, who, instead of covering up the Abu Ghraib scandal, attempted in his report to hold the U.S. military to its traditional principles, was forced to resign from the U.S. Army.
Another answer is that the work of torture, like police work and prosecutorial work, attracts brutal people who enjoy inflicting harm on others. The two Republican female U.S. attorneys in Alabama who framed Democratic Governor Seligman enjoyed ruining Seligman and bringing grief to his family.
Deborah Davies of the BBC’s Channel 4 undertook a four-month investigation of the torture of American prisoners inside American prisons. Videos taken by sadistic prison guards and videos recovered from surveillance cameras reveal horrible acts of torture and even of murder of prisoners by prison guards.
An American prison reformer told Deborah Davies, “We’ve become immune to the abuse. The brutality has become customary.”
“Law and order conservatives” have a great responsibility for this evil. Just as “law and order conservatives” created hysteria among the people about crime, they created hysteria about terrorists. Hysterical people condone great evils and arm government with power in the mistaken belief that it will protect them.
What kind of people have we become when we exercise no oversight over a criminal justice (sic) system that destroys the lives of innocent people and locks them away in prisons to be tortured by sadistic guards?
Paul Craig Roberts was Assistant Secretary of the Treasury in the Reagan administration. He is coauthor of The Tyranny of Good Intentions.He can be reached at: PaulCraigRoberts@yahoo.com
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