|
States
of emergency: India in focus
(CORE E-Human Rights
Feature)
As the United Nations' Commission on Human
Rights is poised to convene next week for its
58th session, among many other human rights
issues, it will be looking into the question of
"states of emergency" all over the world. A
state of emergency is a temporary situation
declared within the territorial boundaries of a
State during which certain fundamental liberties
of its citizens are kept in suspension.
According to established international law, such
a state can only be declared by lawful means and
some core human rights such as the right to life
and the arbitrary deprivation of life, the right
not to be tortured, the prohibition of forced
labor, can never be derogated or set aside, even
in a state of emergency.
States of emergency are a continuing focus of
the UN's human rights monitoring activities
under both its Charter as well as its
Treaty-based bodies, in particular the Human
Rights Committee. The General Assembly, the
highest representative body under the United
Nations Charter, has an independent expert
reporting to the Secretary General annually on
states of emergency. On the other hand, the
Human Rights Commission (HRC), which was set up
to monitor the implementation of one of the most
important core treaties of the International
Bill of Rights - the International Covenant on
Civil and Political Rights (ICCPR) - also has a
special focus on this extremely important aspect
of civil and political. This worldwide concern
arises from the close relationship between such
emergency situations and democratic functioning
of States.
This year, a human rights organization in
special consultative status with the UN has
submitted a written statement to the 58th
Commission on Human Rights that strongly indicts
the Government of India. The statement titled as
"Undeclared state of emergency in India" that
the South Asia Human Rights Documentation Centre
has submitted describes a number of existing
legislation, which it claims violates
established principles that form the basis of a
democratic State.
SAHRDC's statement is particularly pertinent to
the continuous declaration of the entire State
of Manipur, for the past 22 years, as a
"disturbed area" thereby justifying the blanket
suspension of inviolable fundamental liberties
of over two million of India's population
assured by the Constitution as well as by
international treaty. Though the Supreme Court,
in its highly controversial 1997
verdict, upheld the constitutional legality of
this continued de facto state of emergency in
Jammu and Kashmir, Nagaland, Manipur, Assam and
parts of Tripura, wide legal and public opinion
persist that the Government of India is
blatantly and continuously acting in direct
contravention to its legal obligations under the
International Bill of Rights to which it is a
State Party.
SAHRDC says:
"India is awash in legislation that restricts
fundamental liberties. Laws purporting to
safeguard national security and public order
have been employed to counter ambiguously
defined threats. Applied over large swathes of
the country - from the state of Jammu & Kashmir
in the north to several states in the northeast
as well as Andhra Pradesh in the south - these
Acts contain provisions that are incompatible
with the principles that form the basis of a
democratic State.
"Preventive detention, extraordinary powers to
the police and security forces to arrest,
detain, and even shoot suspects - are measurers
that normally follow the proclamation of a state
of emergency, which, in turn, is justifiable
only in the face of threats to the life of a
nation. The extensive nature of these laws has
ensured that virtually the entire country
remains in a state of undeclared emergency.
"Some of the major legislative measures are
summarized below: "The Disturbed Areas Act is in
effect in the states of Assam, Nagaland,
Manipur, parts of Tripura, Jammu & Kashmir,
Andhra Pradesh, and in two districts of the
state of Arunachal Pradesh. It gives police
extraordinary powers of arrest and detention.
"The National Security Act (NSA) of 1980
provides for detention of a person "with a view
to preventing him from acting in any manner
prejudicial to" various State objectives
including national security and public order.
The maximum period of detention is 12 months.
The Act limits the powers of the court to review
detention orders. And while it requires the
Government to refer all cases to an Advisory
Board consisting of High Court judges within
three weeks of the detention, it does not permit
legal counsel to appear before the Board on
behalf of the detenu. The proceedings of the
Advisory Board are moreover closed to the public
and its report to the Government in
confidential. Finally, it gives legal immunity
to any government officer acting in good faith
in pursuance of the Act. At the end of 1997,
according to Government records, approximately
500 persons were in detention under the NSA.
"The Jammu & Kashmir Public Safety Act (PSA) of
1978 applies similar procedures to the state of
Jammu and Kashmir, allowing detention without
trial for two years. According to Government
records, updated as far as August 1997, nearly
1,600 persons were being held in five detention
centers in Jammu and Kashmir as compared to
2,070 in 1995. Of these, 1,298 persons were held
under the PSA.
"The Armed Forces Special Powers Act of 1958
remains in effect in Jammu and Kashmir,
Nagaland, Manipur, Assam and parts of Tripura.
It gives the Central Government the power to
declare any State or Union Territory a disturbed
area, allows security forces to fire at any
person if it is considered "necessary for
maintenance of law and order." They can also
arrest any person "against whom reasonable
suspicion exists" with no obligation to inform
the detainee of the
grounds for arrest. Finally, security personnel
are given immunity from
prosecution for any acts committed by them in
relation to the Act.
"The Prevention of Terrorism Ordinance (POTO) of
2001 is the latest in the series of measurers
that often cause more harm than the threat they
are meant to tackle. POTO provides for the
holding of an accused person for a prolonged
period of detention for up to 180 days without
charges, and effectively subverts the cardinal
principle of the criminal justice system - the
presumption of innocence - by putting the burden
of proof on the accused, withholding of the
identity of witnesses, making confessions made
to the police officer admissible as evidence,
and giving the public prosecutor the power to
veto bail.
Certain rights must be fully respected at all
times and under all circumstances. These include
the right not to be arbitrarily deprived of
life, the right to freedom from torture, the
right to a fair trial and the right to
protection against discrimination. The Acts
listed above lack the safeguards needed to
ensure the protection of these basic rights.
"India is a party to the International
Convention on Civil and Political Rights (ICCPR)
and is therefore obliged to abide by its
provisions. Furthermore, any derogation from its
provisions is only permissible under three
conditions. Firstly, it is only "in times of
public emergency which threatens the life of the
nation and the existence of which is officially
proclaimed" that states may derogate from their
obligations under the ICCPR. Also, such
derogation must be "strictly required by the
exigencies of the situation" and cannot be
inconsistent with other international law
obligations. The AFSPA, for example, was enacted
without such an official proclamation of
emergency and goes beyond the requirements of
the situation. No official proclamation was made
with regard to the application of the NSA or
POTO either.
"Secondly, there can be no derogation from
articles 6, 7, 8 (paragraphs 1 and 2), 11, 15,
16 and 18. The AFSPA violates three of these -
Article 6 guaranteeing the right to life and
prohibiting the arbitrary deprivation of life,
Article 7 prohibiting torture and Article 8
prohibiting forced labor.
"Certain elements contained in this Acts violate
other key provisions of the ICCPR. Article 4 of
POTO violates Article 14(2) of the ICCPR which
states that any person "charged with a criminal
offence to be presumed innocent until proven
guilty.”POTO allows detention for a minimum of
one year, and it is for the accused to prove his
or her innocence, which is made more difficult
by the courts' powers to convict a person using
only the testimony of the arresting police
officers.
"The NSA also derogates from rights guaranteed
under the ICCPR, in particular Article 9 which
provides that anyone who is arrested must be
informed of the reasons for the arrest and the
charges against him. Under Section 8(2) of the
NSA, the authorities may not disclose the
grounds on which the person has been detained.
This is also in direct contravention of article
14(3) of the Covenant.
"Thirdly, under article 40 of the ICCPR, any
state which derogates from the Covenant must
inform the other States parties immediately,
through the Secretary-General. It must also give
reasons for the derogation and the date on which
the derogations are terminated. India has not
met this obligation with regard to any of the
above legislation.
"In its Concluding Observations after having
considered India's Third Periodic Report in July
1997, the UN Human Rights Committee expressed
its concern ‘at the continuing reliance on
special powers under legislation such as the
Armed Forces Special Powers Act, the Public
Safety Act and the National Security Act in
areas declared to be disturbed and at serious
human rights violations, in particular with
respect to Article 6, 7, 9 and 14 of the
Covenant, committed by security and armed forces
acting under these laws as well as by
paramilitary and insurgent groups.’ The
Committee also expressed regret that by applying
legislation such as the AFSPA, the State party
was ‘in effect using emergency powers without
resorting to Article 4, paragraph 3, of the
Covenant.’ It recommended the close monitoring
of the application of ‘these emergency powers’
to ensure strict compliance with the provisions
of the Covenant.
"The September 11 attack in New York prompted
many countries to adopt
anti-terrorism policies and legislation. In this
context, the High Commissioner for Human Rights,
Ms Mary Robinson, has pointed to the need to
ensure that States conform to the standards set
out in the ICCPR dealing with emergency
measures. Such measures, the High Commissioner
added, may be justified in principle in
international law, provided they are
demonstrated to be necessary and there are
effective safeguards. However, she stressed,
they may also require notice of derogation under
the Covenant.
"The need to strike a balance between personal
freedoms and national security will and must
remain the major concern of States while framing
policies and legislation. A good yardstick by
which to measure State action is the set of
standards laid down in the ICCPR. India, along
with other countries, must be reminded of its
obligation to conform to these standards. It
must also submit its actions to scrutiny. That,
as the High Commissioner pointed out, is the
sign of a healthy democracy."
(Courtesy: The Imphal Free Press) |
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