A Protest Convention was held at Gauri Sadan, near Dighalipukhuri, Guwahati, on 20th February 2000 by Manab Adhikar Sangram Samiti, to oppose the enactment of the proposed Criminal Law Amendment Bill. The Convention was a follow up of a protest rally which was organised by MASS on 17th February 2000. Thousands of people attended the rally and marched from the Assam Engineering Institute field, via Silpukhuri, to submit a memorandum for the President of India at the District Commissioner's office in Chandmari.
The Protest Convention attracted a large cross section of people and organisations. In his keynote address, Lachit Bordoloi, Secretary General MASS, briefly outlined the anti democratic nature of the Bill and called for a united struggle against it. Speaking about the need for the citizen to assume responsibilty in the face of State terror, Dr. Deba Prasad Barooah, former Vice Chancellor of Guwahati University, emphasised that the "Super TADA" Bill is nothing new. He mentioned that the Indian State has had a history of imposing Draconian Laws upon the people. In his paper, prof. N. Sanajaoba mentioned that the Bill, like its predecessor TADA, violated just about every statute of International law and jurisprudence. Nekibur Zaman, of the Guwahati Bar Association, reminded the audience that any democratic demand raised by the people of the North East, has always been met with brute force and state repression. He said that many people were still serving time under TADA in Assam and emphasised the fact that political solutions are the only solution to the political problems of the region.
Elaborating further, Niloy Dutta a prominent lawyer, analysed sections of the proposed Bill against the growing dictatorial climate in the country. He highlighted the clauses in the Bill which hold the entire people to ransom, for withdrawing information or for demanding their fundamental rights as citizens of the country. He held the Assam government as well as the central government responsible for the present state of affairs. His views were endorsed by Adip Phukan of Pratidin, as well as Mukut Singha Chutia, of URMCA and Anjali Daimary of Bodo Women's Justice Forum. They spoke of growing fascist tendencies and communalisation of the polity. Dilip Patgiri of AJYCP and Artex Shimray of NESO, drew the audience's attention to the specific problems that plague the people of the North East and to the possible ways in which they may be addressed.
Considering the opinions and views expressed by all the speakers and guests, MASS undertook the following resolutions at the end of the Convention:
- Unanimously oppose the enactment of the Criminal Law Amendment Bill, 1995.
- Organise further Protest Conventions in the North East and on an All India basis, with other Civil Liberties and Democratic Rights organisations.
- Approach all North Eastern and opposition members of parliament, to enlist their support to stop this Bill in parliament.
- Start a world wide campaign against the Bill by approaching bodies like Amnesty International and UNHRC, to pressurise the Indian government to withdraw this Bill.
- To form free legal aid cells, centrally in Guwahati and in all other district headquarters, to provide help to potential victims of this Bill.
- Organise citizens meetings in all districts and a signature campaign addressed to the President, Prime Minister and Home Minister, for the repeal of this and other Anti- people acts.
- Keynote address MASS
- Convention paper
The government of India is about to unleash yet another Draconian Bill to suppress its already beleaguered masses. It has enlisted the help of the Law Commission of India to draft what it calls the criminal Law Amendment Bill. We are told that the prevailing political climate in the country warrants the enactment of such a harsh measure that will curtail the fundamental rights of all citizens of the country. This holds true especially for those who are struggling for their legitimate political and economic rights.
This tendency of the State to deny any space for democratic debates to civil society is nothing new. In our long history of oppression the State has always worked in favour a few and ignored the issues raised by the poor and the downtrodden. It is this history that we wish to highlight, in trying to locate the political implications of the Criminal Law Amendment Bill. It is not enough for us in the human rights movement to oppose this Bill just because it is actually the old TADA in a new bottle. We have to try and find its links in the legal practices of the past.
In 1908 the colonial British government passed the Explosive Substance Act, which was immediately followed by a Criminal Law Amendment Bill in the same year. These measures were taken to curtail the activities of the Indian freedom fighters of that age. The Khudiram Bose incident acted as the catalyst that seemingly pushed the government of the Crown?s colony to enact this law. For the first time in legal jurisprudence one was introduced to the concept of a ?terrorist?. The definitions were suitably vague because they were meant to encompass a wide range of activities that went against the established order. The shortcomings of such a definition becomes all the more glaring, when one is reminded of the fact that the terms of legal discourse have remained the same. Section 120 (a) and (b) of the Indian Penal Code owes its existence to the acts passed by a colonial power in 1908. The irony of a government with claims to being ?democratically elected?, more than five decades after the transfer of power, trying to push an old trick used by colonialists down our throats, is indeed symptomatic of the depths to which the State has sunk. Not satisfied with having defined the oppressed people of the land as its enemy, the colonial State went a step further in 1911 with the Prevention of Seditious Meetings Act in 1911, which was followed by yet another Criminal Law Amendment in 1932, in order to give it more teeth. This provision was used indiscriminately to make arbitrary arrests and detentions. In our part of the world, the workers in the tea plantations were brutally suppressed by this law. They were arrested at the slightest pretext when they met to discuss their problems. It is even more distressing to find out that some of the provisions of the new Bill remain much the same in character.
It is not our intention here to analyse the antecedents of each and every section of the Indian Penal Code as well as those of the Criminal Law Amendment Bill. The intention is to merely point out that the government is not really thinking about a new way to combat the ills that plague society. In fact, it is trying to very hard to make these ills take deeper root. It has not even begun to address the social contexts within which such conflicts occur within civil society. Instead it has negated the very concept of civil society by denying people their rights and by seeking to render impotent, the institutions which make the foundations of civil society. Again the history is distressing. In 1950 the country adopted a Constitution that was to be the basis for any future development, be it political, economic or cultural. It is sufficient to assume that the Constitution was accepted by a wide section of people and that honourable and democratic persons framed it. However, merely one month later the parliament passed the Preventive Detention Act on 26th February 1950. This act was to the precursor to many an act that would be passed to quell the voice of the nation?s masses. They invested in the State, the right to decide the suitable manner in which it would address conflicts that arise out of deprivation. It has always sought the shortsighted and anti people path to address the problems that affect the governed. This is demonstrated by the fact that the Preventive Detention Act of 1950 was renewed every six months, and yet it remained operative for 11years. This does not say much about the State?s willingness to address issues and grievances raised by the people, for it soon replaced this act with the Maintenance of Internal Security Act (MISA), which when it lapsed was immediately replaced by the National Security Act.
The Criminal Law Amendment Bill has this sordid history. It comes in the wake of yet another law, the Terrorist and Disruptive Activities Act, which was passed in 1985. TADA, as the Act was known as was opposed by a wide section of democratic opinion within civil society. Bodies like NHRC, National Commission for Minorities, non- governmental organisations, community based organisations, as well international bodies such as UN Human Rights Commission and Amnesty International joined in the call for its abolition. It was found that TADA was not at all compatible with the provisions outlined in the International Covenant for Civil and Political Rights. The mass scale misuse of TADA only served to underline the fear that the anti democratic tendencies of the State has always been on the surface. But it was not as if the State had a sudden change of heart. As a matter of fact, the Criminal Law Amendment Bill was sent to the Law Commission of India, to improve upon the text of TADA so that a new, ?more effective? law could be introduced.
The present government has made its dubious political agenda of repression of minorities and struggling masses the basis upon which it now seeks to foist this Bill on us. Draconian sections of the Bill may now be used at random to deny people their right to express dissent. Section 11, for example, designates the existence of Special courts, ostensibly to streamline the law and order problems. In reality what this entails is horrifying to consider. Among the provisions in this section, is the fact that only the Supreme Court will be deemed as an appellate court. For the millions, to whom even the normal course of judicial redressal is denied in the lower courts, this is indeed a cruel joke. Moreover, these ?special courts? can be moved at will to any state, putting a further impediment in the course of justice for the lay person. Section 14 of the Bill seeks to ensure ?protection of witnesses?. In the normal order of things this may seem innocuous but when one considers the fact that the accused may now be convicted on the basis of a statement passed to the police by someone who may not even appear in court, it seems like yet another effort to lock people up under any pretext. What makes this Bill even more ludicrous is Section 15 (a), which considers any statement given to the police (even under duress) as evidence that can be placed in court.
This is a Bill that belies its colonial, anti people heritage. Its purpose is nothing short of the desire of the State to quell democratic opinion. What can one say about a Bill, wherein the alleged suppression of knowledge regarding one?s daily life, may be construed as a criminal act if not reported to the police (for verification)? This is the nightmare that George Orwell spoke of. ?Big Brother is watching you?, he said. We therefore call upon all sections of democratic opinion within civil society, journalists, lawyers, teachers, workers and students, to change the terms of this Orwellian nightmare by joining our struggle against this Draconian Bill. It is time to remind ?Big Brother? that his ?little brothers and sisters are also watching him?.
Manab Adhikar Sangram Samiti
TADA- II The Satanic Law:
Which the rule of law and civil society opposes.
Professor N. Sanajaoba
Former Head, Dept. of Law and Dean, Law Faculty
A Civil Society draws its sustenance from its populace without whose consent to be governed it would have been an uphill task the populace always for granted by those, who through some legitimate process or otherwise, exercise authority and power over the former. Occasions may arise that would put ordeals to the resilience of a Civil Society, as it is normally the prerogative of history to do so. Rule of law also may be put to severe test by preponderant political questions or, otherwise by its capacity to adapt to crisis situations. Questions may arise as to how far it has to be compromised to expediency. Once the basic tenets of rule of law and paradigms of accepted norms of the comity of nations, which every Civil Society lives in, are sacrificed at the alter of political expediency or its legal facade, or marginalised, no other institution than the Civil Society which suffers most from that damage.
Regimented or militarised Civil Society has to burst out at one time or the other, as the society has been heated to the utmost without letting out the accumulated heat. Emergency and laws of militarisation are inputs to this process. History bears testimony to this law.
Emergency laws cannot sustain an emergency- civil- society in perpetuity; political consequences have to follow such an eventuality. Permissible derogation from the rule of law and norms of the comity of nations as temporary measures are also made, but they are circumscribed by temporarity, accountability and compatibility with established standards. However, there is always an inalienable political component, when national questions are intricately involved in the process. TADA I has lapsed and the government is embarking upon enacting TADA II. The author examines here the virulent piece of legislation that has been proposed. Termination of Satanic Law
The National Human Rights Commission had urged in August 1994 that TADA be scrapped in toto and the National Commission for Minorities shared the same opinion. Not less than one hundred members parliament and nearly all the opinion makers, human rights NGOs the world over, articulated that TADA be scrapped. The Leviathan has been isolated.
When members of the UN Human Rights Committee sought answers from the representative of India about the compatibility of several provisions of TADA with the provisions of ICCPR (14: 73), the representative acknowledged the concern of the committee (14: 77). The Attorney General of India assured, ?I will convey to my government seriously to consider about the reservations, and you all know that it is a political decision?and I will communicate to my government the very respectful views of this committee? (15: 21). Prof. Higgins found that some of the TADA provisions are incompatible with the Covenant and as an example, Article 9 of the Covenant does not justify TADA. Similarly, Ms. Chanet and Mr. Aguilar held similar expert opinions (13: II).
SAHDOC, after examining the Criminal Law Amendment Bill, 1995 and TADA found the incompatibility of the TADA provisions with the rule of law in India and covenanted standard and recommended that ?the Criminal Law Amendment Bill should be withdrawn? (8: 72). The Government of India has assured the UN High Commissioner for Human Rights of modification of emergency laws, more particularly TADA (9: 13). The government of India has submitted the Third periodic report, as required under article 40 of the ICCPR stating to the UN Human Rights Committee that the TADA Act has lapsed and is no longer applicable (10: 20). The faithful obviously stands as such, as far as the UN Human Rights Committee is concerned.
Amnesty International, which enjoys the confidence of the government of India and the NGOs as well, wanted a possible review of article 22 of the Constitution by the government of India (6: 57) and felicitated the union government for allowing the lapse of TADA that contained provisions ?contravening international human rights law? (6: 58). Thus the US Department of State also recorded the lapse of TADA (4: II). The legicide of the Satanic law in India- the Rowlatt Act incarnate TADA- gave a sigh of relief to all the experts, NGOs, protagonists of rule of law the world over. Rule of law has been restored in both letter and spirit, in its legitimate place.
The UN Human Rights Committee endorsed the development:
?The Committee welcomes the lapse, in 1995, of the Terrorists and Disruptive Activities Act (TADA) under which members of the security and armed forces enjoyed special powers in the use of force, arrest and detention?..? (5: 3).
The disruption caused to the established practices and principles of rule of law by way of creating black laws (3: 8) in a situation of undeclared emergency calls for a drastic Occam?s razor in order to examine the compatibility, accountability and propriety of reviving the Satanic law. It may be recalled that even when the British colonial regime invoked Rowlatt Act, it required three high court judges to announce capital punishment for the Indian terrorists and disruptionists. Even that much small mercy of calling three high court judges to the dispensation in the special courts has been done away with by the democrats of the day.
The international obligations of the government of India and her wings towards safeguarding human rights and humanitarian laws, more particularly in the post- cold- war- world order, in both thick and thin that every regime passes through, are not only clear but also carry accountability (18: 87- 113). The compatibility of reviving Satanic laws has to be examined in this context and perspective, as the heydays of Leviathan have already faded in the post cold war era.
Amnesty International has appreciated the provision for sanctions against public officials and the provision that the police officer who maliciously proceeds against any person for an offence would be prosecuted (II: II); yet such a freak provision would not save the Satanic law from being castigated for its illegality. The proposed bill suffers from this handicap. Amnesty International justifiably observes (12: 1):
?TADA provisions clearly contravene international human rights standards which India is bound to uphold and, arguably, fall short of fundamental rights guaranteed to in India?s own constitution. They contravene important rights provided in the International Covenant of Civil and Political Rights (ICCPR), especially the right to liberty and security of the person, to fair trial and to freedom of expression; they also facilitate violations of the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment.
TADA permits arrest and detention on vaguely defined grounds of ?terrorist? and ?disruptive activities?. The latter are so broadly phrased that they encompass peaceful expression or political or other conscientiously held views?.
Inspite of the overwhelmingly obnoxious characterisation of TADA I that lapsed in 1995, the government of India refers the TADA II i.e the Criminal Law Amendment Bill 1995, to the Law Commission of India (LCI) for further improvement of the text. The improved TADA II Bill remains more or less the same, notwithstanding a few safeguards that have been proposed to be incorporated. The LCI describes the political question in the North Eastern States by downgrading the same as ordinary law and order problem (I:I). It furnishes figures, arithmetic and nothing more.
In order to justify the return of the Satanic law- TADA II, the LCI paints the deep- rooted political questions (even the union government is holding political dialogue with an outfit at present) and the mindless religious fundamentalists of all creeds and pretensions, with the same brush (I: 2. Para I. 10). It may argue that LCI is concerned with legal frameworks only, whereas it does not mention the Geneva Convention Act 1961, passed by the government of India for regulating armed conflicts in the region and other parts of India. It has probably, by choice, overlooked the relevance of the Geneva Convention, 1949, two protocols, 1977 and international humanitarian laws in a situation, where armed conflicts are 50 years old and very sharp. Where the National Commission on Human Rights suggests a political to the festering wounds in the region, the LCI insists on a more severe Satanic law (I: I para I.II.I) that only a hard state ought to enact.
The international human rights regime of the UNHRC on the contrary recommends (5: 6 para 18):
?In this respect, bearing in mind the provisions of articles I, 19 and 25 of the Covenant, the Committee endorses the views of the National Human Rights Commission to the effect that the problems in the areas affected by terrorism and armed insurgency are essentially political in character and that the approach to resolving such problems must also, essentially be political and emphasises that terrorism should also be fought with means that are compatible with the Covenant?
Article I relates to the people?s right of self-determination. The government of India retains reservations to the right of peoples to self-determination under article I of the ICCPR. The UN Human Rights Committee recommends that the government of India has to review article I, among others, ?with a view to withdrawing them? (5: 4 para 14).
The LCI should have invariably incorporated these vital, essential legal inputs in its working paper, whereas not a single erudite member gave cognizance of the relevance of the UN, UNHRC and India?s international- national obligations to the comity of nations.
The LCI made an unusually elaborate argumentation to revive the Satanic TADA II with the help of crutches from UK and USA (I: 3- II) by citing Anti Terrorism and Effective Death Penalty Act of 1996 of the USA and Northern Ireland (Emergency Provisions) Act 1996 etc. The author wishes to draw attention to the ?political component? of the steps taken by the USA and UK in matters relating the political question. The LCI ignored this vital ?political component? in its paper for obvious reasons. It should be noted that South Asia has developed such a political culture that whosoever rules, can dispose of whosoever he dislikes, including the Prime Minister as a terrorist, through law.
The complimentary ?political components? are briefly cited herein. No national- political question has been raised in the USA except in the case of Puerto Rico. The Joint Congress of USA had accorded in 1979 Puerto Rico?s right to self determination and as of now, the UN backed self determination resolution of Puerto Rico remains valid. In regard to the Northern Ireland issue, the UK government had conceded by her Downing Street Declaration 15 December 1994, right to self-determination, which has been crystallised further by the US, backed Belfast Agreement of 10 April 1998. These inalienable ?political components? should not be severed from the linkage.
The USA?s stand in regard to capital punishment as provided in its emergency law is not above international scrutiny and it has to be cited along with the UN instruments if we are to be fair to law and justice. As many as 38 states including India?s neighbour Nepal had acceded to the second optional protocol of the ICCPR for the abolition of death penalty (2: 107). The legal experts, ministry, LCI and NGOs in India may apply their mind for abolition of death penalty in India as well. The LCI appears to be extremely enthusiastic about extracting death penalty by giving lame excuses at a time when the civilised world (7: CHR 1997) switches over to the abolition of death penalty by endorsing the second protocol. The LCI sadistically cites with pleasure federal death row inmates in the USA (1: 4). Its wisdom is exercised very much against the conscience of the civilised jurisprudence. The Northern Ireland Act is subject to annual renewal by the parliament, whereas such accountability has not been incorporated in the TADA II Bill. The Incompatibility
The Criminal Law Amendment Bill 1995 as improved upon by the LCI (1: 19-27) has suffered from inbuilt provisions that are found to be incompatible with the rule of law, international human rights standards and even the fundamental rights provision of the Constitution of India. The basic failure lies in the invocation of unproclaimed emergency contrary to the emergency provisions of the Constitution. The UK and USA do not have constitutional emergency provisions and hence, their approaches cannot be grafted in India?s political structure and arrangement, out of context.
India?s compatibility to enact emergency laws should be subject to Article 4 of ICCPR:
I. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the state parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation provided that such measures are not inconsistent with their other obligation under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion and social origin.
Derogation is prudent and judicious if the government of India officially proclaims emergency under Article 352 of the Constitution. The proclamation runs for 6 months only and in the event of extension, the executive government is accountable to parliament after the expiry of six months. This parliamentary accountability has been prescribed by the constitution and colourable legislation should not be made if democratic values and propriety have to be respected. In the event of derogation in accordance with the formal and official proclamation of emergency, the derogation is not permissible in the case of articles 6, 7, 8 (para I and 2), II, 15, 16 of the ICCPR.
Article 6 is non-derogable. It provides:
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The TADA II Bill has to be evaluated by applying these human rights standards, Jus Cogens, and India?s international law obligations. The LCI improved value added TADA II Bill still suffers from incompatibilities with the accepted standards of rule of law and jurisprudence. Some of these instances are pointed out for demonstration.
The first flaw is that these temporary laws are enacted in temporary derogation as stipulated in article 4 of the ICCPR, but the LCI in its wisdom makes a case of undeclared emergency in India in perpetuity. A complete chapter is devoted by LCI to the necessity of a permanent anti- terrorist law in India (I: 9), which is untenable as India cannot remain a permanent emergency State. This is simply absurd and outrageous to constitutionalism.
The other flaws are also found. Charges are to be promptly communicated to any arrested person, but a mere custody memo is provided in section 19 (A) of the proposed TADA II. The denial of prompt trial under the Bill is a contravention of article 9 (3) of the ICCPR. Section 21 of the Bill sets out with presumption of guilt whereas in the established criminal law jurisprudence ? presumption of innocence? is the basic tenet, which cannot be violated. In the case of conviction of the provisions of punishment in Section 4 of the Bill and trial, the special court waives the fundamental tenets of criminal law, i.e ?proved beyond reasonable doubt?. Section 4 (I) preventing peaceful discussion or dialogues like the one the union government holds with an insurgent from Nagaland or discussing the plebiscite in Kashmir as per UN resolution, that ought to bind the parties, is a clear transgression of Article 19 (I) (A) of the Constitution of India and Article 19, ICCPR. This provision smacks of Nazi ideals and form of government. The LCI espouses this without any refrain. Section II A of TADA II Bill that leads to presumption of guilt for a person, who does not provide his saliva or semen etc, violates article 20 of the constitution.
The fundamental requirements of framing prompt charges, public hearing and evidence as stipulated by article 14 of the ICCPR are not respected by section 13 of the Bill. The provisions of the confession made before police official under section 15 (A) and its admissibility as evidence violates Indian Evidence Act. The notorious way of torture, conducted in police custody in India is well known. Under Section 17, the High court lacks the jurisdiction to grant bail and the Supreme Court, which is beyond the reach of 99% of Indians, and particularly the citizens of North Eastern States has the jurisdiction. Virtually the power to grant bail has been removed. The review committee as stipulated in section 27 of the Bill lacks judicial elements like, persons eligible for appointments as high court judge. Token safeguards are incorporated, but virtually they may be of little assistance to the detenues and prisoners.
One cannot make an isolated study of TADA I or TADA II without considering the whole gamut of other Black Laws like NSA, Disturbed Areas Act 1995 and Armed Forces (Special Powers) Act, which have been regimenting the civil Society for decades. Not being content with the right to shoot down the citizen in the North Eastern region with immunity and impunity, the Civil Society has been unbearably overloaded with Satanic laws and the imagination of the law factories including the LCI is so fertile that it gives the impression that they desire to a holy shrine with human skulls from this region and permissible aberrations in officially proclaimed emergency situation.
The civilised Civil Society considers the denigration of the rule of law and efforts to perpetuate Satanic laws as the best evidence of decaying mindset of the Indian ruling classes. No Civil Society can remain permanently militarised and regimented either under one law or another. The Satanic law, TADA II has no place in Civil Society. References
- Law Commission of India, Working Paper on Legislation to Combat Terrorism, 2000.
- UN, Report of the Human Rights Committee, vol. I, 1999.
- Lawyers, Scribes?discuss Bill to replace TADA, Statesman, Dec.17, 1999: pg.8.
- U.S Dept. of State, India Report on Human Rights Practices for 1997, Jan. 30, 1998.
- UN, Human Rights Committee, India, CCPR/C/60/INDIA/3, 1997.
- Amnesty International, India, July 1997, ASA 20/27/97
- Extracts from 1996/ 1997Annual Reports of UN?Mechanisms..India.
- SAHDOC, Alternate Report?on India?s Third Periodic Report, July, 1997.
- UN, Report of the UN High Commissioner for Human Rights, 1996.
- UN, Third Periodic Reports of States, India (Nov. 29, 1995), 1996.
- Amnesty International and India, March 1996.
- Amnesty International, INDIA, The Terrorist and Disruptive Activities Act, Nov. 1994.
- Amnesty International, INDIA?Second Periodic report, March 1993.
- UN, report of the Human Rights Committee, General Assembly, 1991.
- NPMHR, Transcriptions of proceedings of Human Rights Committee, 1991, Goodwill Press, Imphal, 1991.
- Alternate Report to the Third Periodic Report of States parties, India, Committee on Human Rights (COHR), Imphal, Feb. 1997.
- N. Sanajaoba, Mee-Oibagee Haq (Human Rights), 1999, 312 pp, TADA in pp. 118- 131.
- See N. Sanajaoba, ?International Dimensions of Human Rights and International Obligations of India?, Journal of the Indian Law Institute Human Rights Special Issue, Jan- Dec, 1998, pp. 87- 113.
India's international obligations to maintain international standard has been discussed thoroughly with the help of Apex court decisional laws, constitutional imperative and contemporary state practices.