:: Legislation ::
During the 1980’s and 1990’s, 18 special laws giving the security\ forces unlimited power were enacted in Punjab, suspending basics fundamental rights to life, liberty and freedom of expression. Four of these special laws are referred to below:
“ The 59th Amendment destroys the rule of law, the rule of equality, the rule of life and implants instead the rule of law lessness, of the executives right to extinguish life without the right to justice in a court.” (VR KRISHAN AIYER NOTED JURIST)
The passing of the 59th Amendment, on March 1988 through both Houses of the Indian Parliament in effect brought the Emergency of Indira Gandhi’s administration through the backdoor. The Act gave power to impose a state of Emergency to control internal disturbances in the State of Punjab.
The amendment also permits direct rule from New Delhi (in India called President’s rule) in the state of Punjab for up to three years without having to obtain parliamentary approval.
Article 21 which insures that no person shall be deprived of there life or personal liberty except according to procedure established by law, was suspended during 1987 for a period of 2 years in the Punjab by the 59th amendment of the constitution. This was later repealed. During this period the Indian security services were deemed to have to have a ‘licence to kill’.
Terrorist and Disruptive Activities Act 1987 (TADA).
The Act established special courts or “designated courts” to try those arrested for terrorist acts and disruptive activities. It conferred broad discretion upon the authorities to arrest persons and to try them. One of the most important points about TADA was the effect it had on the population of Punjab, it erased the distinction between violent and peaceful protests.
Under the definition used in TADA, the state saw it self justified in ordering police forces to break up demonstrations and detain thousands of people, particularly those connected with political organisations, however weak those connections are. Under TADA a person could be detained, without charge or trial for suspicion of belonging to, supporting or having knowledge of militant groups.
The police were given strong search and seizure powers under the Act, they could indict any person on the basis of suspicion. Once indicted under TADA, the accused would be tried by a special court under extraordinary procedures. In such trials, protections normally available to an accused in a liberal society would be ignored. Once under trial the accused could be convicted on the basis of minimal evidence that would have been insufficient for conviction by an ordinary court under normal Indian law.
The government used TADA as a tool to fight trade unions and to detain Muslims, Sikhs, Dalits, and political opponents. Over 76,000 people were arrested while TADA was in force from 1987 to 1995. The conviction rate for these arrests was less than two percent. In the period since 1987 to its repeal in 1995, some 17,544 (The Tribune 1.6.94) persons suspected of terrorist activities were detained in Punjab under its provisions. However, no one has ever been convicted under section 3, which defines a terrorist and only 1.8% of those detained under T.A.D.A have been convicted.
Although TADA lapsed in May 1995 after immense international pressure from the organs of the United Nations and non-governmental organisations, it has been given retroactive effect and people are still being charged and held according to its provisions.
TADA permitted detention in judicial custody for up to a year (2 years in Punjab) without formal charges (s 20 (4)(b)). Bail was not allowed as of right; a magistrate had to be convinced of the innocence of the prisoner before it was granted and imposed a mandatory five-year sentence for those convicted of terrorist related activities in Camera (in private) trials and identity of witnesses was kept secret, so that no cross examination of them was allowed.
Terrorist Affected Areas (Special Court) Act 1984
Further, the Terrorist Affected Areas (Special Court) Act amends the Indian Evidence Act so that when a person accused of committing an offence can be shown to be in an area where firearms or explosives were used against the security forces, they are considered to be presumed guilty if an offence and must rebut the presumption at trial.
Armed Forces (Special Powers) Act 1983
In addition there are further legislation permitting pre-trial detention of those suspected of involvement with militant activities on very loosely defined grounds of national security. These include the Armed Forces (Special Powers) Act allowing the security forces wide powers of arrest, to conduct searches without warrant and prohibiting a detainee from being legally represented when an Advisory Board conducts review of the detention period. Reasons for the detention do not have to be disclosed if it is not in the “public interest” to do so.
These statutes were criticised by the International Human Rights Committee at India's third periodic report under the article 40 of the International Covenant on Civil and Political Rights.1
1 Report to the 59th Session of United Nations Human Rights Committee July 1997, by Sikh Human Rights Group, contains the findings of the Committee.