On September 25, 2006, the Committee on International Human Rights of the New York City Bar Association released a report, Anti-Terrorism and Security Laws in India, calling on the Indian government to limit its application of anti-terrorism laws. The 135-page report, based on extensive research and a two-week trip to India, provides a thorough analysis of the use and effectiveness of anti-terrorism laws in India, and the need for reform of the Indian police and criminal justice system in order to prevent further human rights violations. Anil Kalhan, Visiting Assistant Professor at Fordham University School of Law, serves as chairman of the committee’s India project. During their two week trip, project participants met with attorneys, government officials, detainees and their families, scholars, and human rights defenders throughout India.
The report challenges the effectiveness of India’s anti-terrorism and security laws, stating that terrorism has persisted despite these laws and few terrorists have been successfully prosecuted. Instead, these laws have facilitated human rights violations, such as arbitrary and selective enforcement against lower caste and minority communities; prolonged detention without trial; prosecution of ordinary crimes as terrorism-related offences; custodial abuse and torture; and violations of the freedoms of speech and association. The report asserts:
“Attentiveness to these human rights concerns is not simply a moral and legal imperative, but also a crucial strategic imperative. As the Supreme Court of India has recognized, ‘[t]errorism often thrives where human rights are violated’ and ‘[t]he lack of hope for justice provides breeding grounds for terrorism.’
The report analyzes the historical and institutional context and human rights concerns arising from three categories of laws:
(1) constitutional provisions and statutes authorizing the declaration of formal states of emergency and the use of special powers during those declared periods, (2) constitutional provisions and statutes authorizing preventive detention during non-emergency periods, and (3) substantive criminal laws, such as TADA [Terrorist and Disruptive Activities (Prevention) Act], POTA [Prevention of Terrorism Act], and UAPA [Unlawful Activities (Prevention) Act], which define terrorism- and other security-related offenses and establish special rules to adjudicate them during non-emergency periods.
The Association discusses the use of these laws in the counter-insurgency operations in Punjab. Prior to the Indian Army attack on Harmandir Sahib in June 1984, for example, the government relied upon its emergency powers under the Constitution to repeatedly impose President’s Rule and dismiss the state government. The report discusses the enactment and application of TADA in response to the violence in Punjab:
Considerable evidence suggests that in its application, TADA’s sweeping powers were used predominantly not to prosecute and punish actual terrorists, but rather as a tool that enabled pervasive use of preventive detention and a variety of abuses by the police, including extortion and torture. In Punjab, advocates extensively documented evidence that thousands of individuals, virtually all of them Sikh, had been arbitrarily arrested under TADA and detained for prolonged periods without being told the charges against them. The availability of TADA’s provisions as a means of coercion also helped facilitate many of the other well documented human rights violations by the police.
Only less than one percent of the 14,557 individuals detained under TADA in Punjab were convicted. Similar violations occurred throughout India in the application of TADA.
The report highlights major human rights concerns with the anti-terrorism laws, such as overly broad and ambiguous definitions of terrorism, the use of special courts that infringe on the right to a fair trial, and broad immunities from prosecution for government officials that obstruct victims’ right to an effective remedy, among other problems. The Association praises India for repealing the Prevention of Terrorism Act (POTA) in 2005 and taking steps to limit its use, but highlights concerns from the continued retroactive application of POTA. Further, the government of India preserved key provisions from POTA in amendments to the Unlawful Activities (Prevention) Act of 1967.
The authors further highlight the lack of effective mechanisms in India to ensure police accountability for human rights violations. In its recommendations to improve these mechanisms, the Association includes protection of lawyers and human rights defenders, the elimination of provisions granting official immunity, and the elimination of the requirement of prosecution sanction, among others. The Association insists on the need for further transformation of India’s criminal justice and police institutions in order to alleviate the pressure to enact anti-terrorism laws and fully address the human rights concerns.