SACW #2 | 8-9 Oct 2004 | India Human rights special

[sacw]

South Asia Citizens Wire  #2 |  8-9 October, 
2004 [India: Human Rights Special]
via:  www.sacw.net

=======

[1] India: Protest against POTA
[2] India: Censor scissors spare riot film (Chandrima S. Bhattacharya)
[3] India: Armed Forces Special Powers Act  in Manipur (Sriram)
[4] India: Prevention of Terrorism Act (Pota) 
Repeal Ordinance - Myth and Reality (Rajindar 
Sachar)
[5] India: Who Attacked the Parliament? (Nirmalangshu Mukherji)
[6]  India: Civilians and Localisation of Conflict in Assam

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[1]

The Hindu, 8 October 2004

http://www.hindu.com/2004/10/08/stories/2004100815550300.htm

Protest against POTA

By Our Staff Reporter

NEW DELHI, OCT. 7. Demanding a retrospective repeal of the
Prevention of Terrorism Act (POTA), concerned citizens and
families of those booked under the Act staged a protest march on
Parliament Street here today.

Shouting slogans such as "Hindu-Muslim bhai-bhai, Phir beech mein
POTA kahan se aaya'', the group demanded that all those booked
under POTA should not face trial under the provisions of the
"Draconian act". "How does the repeal of POTA help my family
or me? My husband was booked under POTA in April 2003. And today,
even after its repeal he is still booked under it. Even though
these people have said that this is a Draconian act, there is no
relief for those booked under the Act. I am hoping that something
works out,'' said Nazia Nisar Ahmed Sheikh, a resident of Kalupur,
near Ahmedabad in Gujarat.

Social activist Zakia Jowher from Gujarat Janandolan, added, "Why
did they repeal POTA when it was about to lapse anyway? The
Congress has repealed the Act before the Maharashtra elections so
that they would get votes. The Congress should stop betraying the
Muslims."

______


[2]

The Telegraph - October 08, 2004

CENSOR SCISSORS SPARE RIOT FILM
Chandrima S. Bhattacharya
Mumbai, Oct. 7: The Censor Board made a complete 
turnaround today and cleared Final Solution, a 
film on the aftermath of the Gujarat riots, 
without any cuts.

In August, the board had rejected the 
internationally acclaimed film, made by Rakesh 
Sharma, on the ground that it could incite 
communal flare-ups. Sharma had appealed to the 
board to send the film for a review.

The film was shown today to the high-profile 
revising committee comprising Censor Board 
chairperson Anupam Kher, filmmaker Shyam Benegal, 
activist Teesta Setalvad, theatre personality 
Dolly Thakore and filmmaker Ashok Pandit, who 
said it could be released without any change.

Kher said the documentary was a "testament of 
history" and "a very well-made film". It was 
passed unanimously by the revising committee.

Rejecting the documentary, the Censor Board had 
previously said "the film promotes communal 
disharmony among Hindu and Muslim groups and 
presents the picture of Gujarat riots in a way 
that may arouse communal feelings and clashes. 
Certain dialogues involve defamation of 
individuals. The entire picturisation is highly 
provocative".

Final Solution shows Gujarat chief minister 
Narendra Modi and VHP leader Praveen Togadia 
campaigning before the Assembly polls, inciting 
Hindu crowds with inflammatory speeches against 
Muslims.

The film has won the prestigious Wolfgang Staudte 
Award at the Berlin International Film Festival, 
where it also won the Special Jury Award. But the 
Censor Board took more than a year in arranging 
for the screening of the film to one of its 
committees, then refused to give it a censor 
certificate.

Sharma said it was major victory for his film and 
the battle against censorship. "Documentaries 
should not require censor certificates at all."

Hope for 9/11

Fahrenheit 9/11, the controversial film on George 
W. Bush that got stuck at the Censor Board here, 
is also likely to be cleared soon. "The review 
committee will come to a decision on Saturday," 
said Kher.

______


[3]


www.sacw .net  | October 6, 2004
URL: http://www.sacw.net/hrights/sriram08102004.html

ARMED FORCES SPECIAL POWERS ACT  IN MANIPUR
by Sriram

When one observes the manner in which colonizing 
nations of the past and present flex their 
oppressive muscles under veils of righteousness, 
one is boggled at the consistency that is imbibed 
in imperialism. Whether it was educating savages 
in the 1850s, stemming the red tide in the 1960s 
or liberating Iraqis in 2004, it all boils down 
to the same neo-colonial machinery preceded and 
succeeded by bogus rhetoric. Words like freedom, 
liberation, and patriotism now more than ever are 
bandied about by the haves in order to further 
oppress the have-nots.

And when one observes leviathan developing 
countries like India, there's not too much of a 
difference, save oneŠwhere colonial nation-states 
of the West conducted and continue to conduct 
mass human rights violations outside of their 
borders, the Indian government and elite 
gleefully do so within their own borders. Whether 
it is oppression of minorities by state-supported 
fundamentalist groups like the Bajrang Dal and 
Ranvir Sena, or human rights abuses perpetrated 
by the state itself in Kashmir and the North 
East, the flow of blood and the 
disenfranchisement of the victims is one and the 
same.

India has had and continues to have a veritable 
spectrum of draconian laws that are supposedly 
aimed at stopping terrorism. Maintenance of 
Internal Security Act (MISA), Terrorist And 
Disruptive Activities (Prevention) Act (TADA), 
Prevention Of Terrorism Act (POTA), the Disturbed 
Areas Act (DAA), the Armed Forces Special Powers 
Act (AFSPA)Šeach, when implemented result in the 
oppression of the most under-privileged members 
of our society. The latest in a long list of 
human rights abuses under the benign gaze of the 
state and central government was the custodial 
death of Thangjam Manorama resulting in wave 
after wave of protests, both violent and 
peaceful, in Manipur where the AFSPA has been 
enforced for 24 years till date. 24 years of 
oppressing a region and a people who had long 
been discarded by the central government from the 
Indian mainstream.

The wording of the AFSPA enacted by Parliament in 
1958 is indeed blood curdling to even read let 
alone act out. The act states that any 
commissioned officer, warrant officer, 
non-commissioned officer or person of equivalent 
rank in a disturbed area may fire upon or use 
force even to the point of causing death if he is 
of the opinion that it needs to be done to 
maintain public order. He may arrest, without a 
warrant, any person against whom a reasonable 
suspicion exists and may use the above mentioned 
force to effect the arrest, as well as enter and 
search without warrant any premises to make any 
such arrest or if reasonable suspicion exists. 
Any person arrested under this Act is to be taken 
to the nearest police station and placed in 
custody without any delay. If this weren't enough 
already, the Act gives sweeping immunity to 
anyone acting under it. It states verbatim 
"Protection to Persona acting under Act: No 
persecution, suit or other legal proceeding shall 
be instituted, except with the previous sanction 
of the Central Government, against any person in 
respect of anything done or purported to be done 
in exercise of the powers conferred by this Act."

It does not take a sociopolitical genius to 
figure out that the very wording of the Act 
itself begets heinous misuse. When one considers 
it in tandem with a corrupt state and police 
machinery, as is the case in many parts of India, 
the human rights violations sky rocket upwards.

All the other laws mentioned above are 
regurgitated versions of one another. The Indian 
Government seems to have a periodic revisit to 
it's legitimized mechanism of oppression in order 
to repeal one law and fortify it with yet another 
law, more draconian and heinous than it's 
predecessor, all meant to quell "terrorism" and 
"threats to national unity"Šwith tragicomically 
abysmal results. First there was the Preventive 
Detention Act passed by Parliament in 1950 in the 
bloody aftermath of Independence and Partition to 
curb activity that was perceived as a threat to 
national unity. This Act expired in 1969 and was 
quickly replaced by MISA in 1971, primarily used 
to curb the Naxalbari uprisings, which in effect 
meant persecuting and killing leftists, trade 
unionists and poor peasants. In 1958 the AFSPA 
was passed and remains un-repealed and very much 
in use in Kashmir and the Northeast. The AFSPA 
and MISA were soon followed by TADA in 1985, and 
despite both MISA and TADA being repealed, 
thousands of innocents have been detained under 
TADA and continue to remain till date as 
under-trials, facing horribly trying conditions 
of malnutrition, torture and, many a time, 
custodial killings. After MISA and TADA came and 
went, 2002 signaled the arrival of the one act 
that could match the AFSPA in its lethality, and 
that was POTA, which was used by the BJP 
Government to rigorously oppress Muslims in 
various parts of India.

Did I once hear something about India being a democracy?

There is plenty of justification and 
rationalization from the Indian Government, army 
and police as to the need for these acts. It is 
often argued that these laws are needed to fight 
terrorism and maintain law and order. Soon the 
rhetoric to follow is the same pseudo-patriotic 
dribble.

While it appears that there is a very vague 
element of truth to the rationalization offered 
by the government, and seems to follow the means 
vs. end argument, what is often overlooked is 
that even these extreme, draconian means with the 
usage of laws like the AFSPA is flawed and 
corrupt. What then results is a scenario where 
the end is still as far away as it always has 
been, if not further, and the means employed by 
the state is causing the complete collapse of 
civil society and fundamental human rights. This 
is so, because even if by some astonishingly 
myopic stretch of logic this argument given by 
the government is bought, the very fact that 
there are absolutely no rigorous justice 
mechanisms for members of the police or army who 
misuse this act, proves that this is flawed 
logic, and that the government is only using 
these Acts to oppress those who don't fall within 
the mainstream setup.

It is high time that the Indian Government, and 
many other nations for that mater, realized that 
reactive measures of force could never achieve 
the sustained development of a stable and strong 
civil society that proactive measures of peace 
and dialogue can. How can the government hope to 
bring peace and stability to Jammu and Kashmir or 
the Northeast if they continue to station 
hundreds of thousands of soldiers without any 
plan for troop-reduction? How can the government 
consider itself one for the people if there is no 
sustained grievance-addressing dialogue with the 
people of these troubled regions?

Instead we have macho rhetoric and custodial deaths.

The State can't offer the rationale that 
terrorist groups flourish, when it has done next 
to nothing to address the fundamental needs of 
the people in these same areas, in fact further 
marginalizing them every step of the way. Instead 
of escalating the confrontation with militant 
groups, the government would probably do a lot 
better by giving them a reason to not exist, and 
furthermore give the people of those regions a 
reason to not join or support these groups. When 
family members are killed, the youth are enraged 
and want revenge and secession from a government 
that oppresses them periodically.

And why not? If a government provides nothing of 
what it is supposed to provide to its citizens, 
and above that willingly oppresses them, who 
wouldn't want to secede and participate in an 
armed struggle. For ever Manorama who is killed 
in custody, there will be many more pushed 
towards the extreme step of arming themselves 
because of that death, and indeed that rage is 
well justified.

In the Northeast the government would do well to 
conduct dialogue not just with militant groups 
but also with the people residing there, the ones 
who are the most disenfranchised. Rigorous, 
proactive efforts have to be made to bring them 
into the Indian mainstream. For those who do not 
wish to be a part of India, the government should 
engage in constructive dialogue that is not based 
on blind ideologies of national unity, and 
preservation of borders, but rather based on what 
is best for the people. In a functioning 
democracy, people have the right to claim 
secession as long as human rights aren't trampled 
upon. And one can safely say that if the Indian 
Government were to provide their own citizens in 
the Northeast with proper socioeconomic 
development, and not marginalize then, the number 
of people wanting to claim secession would reduce 
quite drastically. One of the first steps to 
doing that is to repeal draconian laws like the 
AFSPA that condemn the whole state and the people 
residing in it. No doubt, terrorism has to be 
battled but it has to be done while upholding the 
constitutionŠa constitution that considers all 
citizens of India as equal, regardless of race, 
gender, religion, caste or creed. Instead of 
enacting one draconian law after another, why not 
improve the existing state and police machinery 
that indeed has strong laws to prevent genuinely 
criminal activity?

Just as important, everyday people in India who 
don't bear the brunt of these laws, have to look 
beyond government propaganda on supposed 
"terrorist " groups, and truly support and fight 
for the ones who are oppressed and upon whom 
human rights violations are perpetrated. Every 
Manorama in every part of India is our sister, 
brother and comrade. If we don't fight for them, 
we've lost the fight for ourselvesŠbecause we are 
them.


______



[4]


www.sacw.net  | October 7, 2004
URL: http://www.sacw.net/hrights/RSachar07102004.html


PREVENTION OF TERRORISM ACT (POTA) REPEAL ORDINANCE - MYTH AND REALITY
by Rajindar Sachar (*)

A rose will smell the same by any other name, 
while Prevention of Terrorism Act (POTA) 2004, 
will stink by any other name, I am reminded of 
this by the cosmetic exercise of UPA Government 
in purporting to repeal POTA - but ironically 
providing at the same time that notwithstanding 
the repeal any investigations, legal proceedings 
may be instituted, continued, enforced and any 
penalty or punishment may be imposed as if the 
said Act had not been repealed. Put simply, it 
means that all action taken by NDA Govt. and even 
false cases instituted against Muslims in Gujarat 
have been given the cloak of legality permitting 
Narender Modi to continue to harass the 
minorites. At present the position is that 217 
cases (involving 1600 persons) are being 
investigated under POTA and 116 of them are being 
tried (involving 500 people). Many of them are in 
jail for over 2 years but the trial has not yet 
even commenced. What does one now tell them that 
UPA Govt. though proclaiming its opposition to 
POTA in the past now feels that all pending cases 
should continue to be tried subject to being 
reviewed by Central Review Committee, (which was 
set up by NDA Govt.) and until it finds in favour 
of detenues they must remain in jail. What a 
demonstration of UPA Govt. of its secular 
commitment and safeguarding of civil liberties at 
the threshold of its governance. What prevents 
UPA Govt. straightaway to withdraw all cases 
considering the immediacy shown in withdrawing 
the case against Raja Bhaiya of UP, even when 
POTA was in existence.

A large number of objectionable features of POTA 
have been retained by the not so clever exercise 
of amendments made in Unlawful Activities 
(Prevention) Act, 1967 Ordinance 2004.

The blanket power to the Govt. to declare any 
association as terrorist has been retained but 
the remedy in the Unlawful Activities 
(Prevention) Act, 1967 to have the matter 
inquired by a sitting judge of High Court on 
facts has been dispensed with by providing for 
limited jurisdictional remedy by a Review 
Committee consisting of a majority of officials 
though headed by a sitting or a retired High 
Court Judge. The definition of unlawful activity 
is common to both 1967 Act and the Amendment 
Ordinance to mean an association which either by 
words spoken or otherwise acts so as to disrupt 
the sovereignty and integrity of India. The 
offence being the same but the remedy being less 
favourable under the Ordinance as against that 
provided under 1967 Act, no court can uphold such 
patent discrimination and the unfettered power of 
Central Government to pick and choose between two 
associations accused of the same crime. Such 
action is totally illegal.

By Section 7 of Amendment Ordinance, new Chapter 
IV, V, VI and Schedule of POTA have been bodily 
lifted from the repealed POTA and incorporated in 
1967 Act. The result is that terrorist 
organization declared by NDA Govt. are accepted 
and continue to be so as such by UPA Govt. to be 
terrorists. Is it not tragically amusing that the 
governmental mantle makes fiercast opposing 
political parties think and behave in the same 
manner against common citizens.

There has been so much clumsiness in drafting 
that though provisions of admissibility of 
evidence collected through interception of wire, 
electronic has been bodily lifted from POTA but 
the procedural safeguards put in POTA (which in 
fact were necessitated under compulsion of 
judgment earlier given jn PUCL case filed by us 
challenging telephone tapping). The Supreme Court 
though it upheld the legality of telephone 
tapping but subject to certain safeguards. 
Unexplainably these safeguards have been omitted. 
Further clumsiness that while incorporating a 
requirement of the order of competent authority 
permitting interception to be supplied to the 
accused before trial, the definition of 
"competent authority" given in POTA has been 
omitted - the result is to make this provision 
unworkable because no interception can be legally 
done unless with prior authorisation by competent 
authority, and as no competent authority has been 
provided by the Ordinance any interception will 
be illegal and inadmissible - the whole purpose 
of this provision will remain a dead letter. 
Moreover, in POTA there was a review committee 
formed to review the order of competent 
authority. This also is omitted in Amendment 
Ordinance.

I do not know what is the thinking of Govt. in 
omitting this Chapter. As the Supreme Court 
upheld the power of interception subject to 
safeguards so as to comply with the requirement 
of Article 19 (Right of Privacy), the deletion 
will make all such interceptions unconstitutional 
and inadmissible. It is to be noted that without 
such safeguards, the power of the Govt. to abuse 
this power was so prevalent that Govt. agencies 
used to intercept communications of even former 
Prime Ministers and Central Ministers as noticed 
in PUCL case. Does UPA Govt. wish to go back to 
such arbitrary police powers.

A very objectionable feature in POTA of 
permitting the court to keep the identity of 
witness secret has been retained and incorporated 
as such in Amendment Ordinance. Such a provision 
has been held to be unconstitutional by Inter 
American Human Right Court and evidence thus 
obtained is not admissible. Even the Supreme 
Court has accepted in PUCL case challenging POTA 
that keeping secret the identity of witness is a 
deviation from the usual mode of trial - but 
still Amendment Ordinance retains this provision 
thus denying fair trial to the accused, the very 
accusation made against the provision in POTA by 
the UPA Constituents.

Of course, credit must be given to the Government 
for keeping inadmissibility of confession before 
Police in the same way as general law of the land 
but then again it will not benefit the existing 
detenues who will continue to be governed by 
objectionable law of POTA which the Govt. itself 
feels denies safeguard to the detenues to defend 
himself/herself.

No credit need be taken by the Government in 
purporting to suggest accused can apply for bail 
in the first year. This position was laid down by 
the Supreme Court while disposing the PUCL case 
challenging POTA that even under POTA it was open 
to the accused to apply bail in first year. As a 
matter of fact, the Central Government had 
conceded this position before the Supreme Court. 
No relaxation has therefore been made and the 
Government cannot take any kudos in this behalf.

How clever you may try to become but reality will 
always catch up with you is an ancient maxim but 
Governments continue to ignore it at their peril.

[ * Rajindar Sachar
A-19, New Friends Colony,
Chief Justice (Retd.) New Delhi - 110 065 (India)
High Court of Delhi, New Delhi
UN Special Rappoetuer on Housing E-Mail:[protected]
Member, U.N. Sub-Commission on Prevention of
Discrimination and Protection of Minorities (Ex.) Fax: 091-011-26313393
President, Peoples Union for Civil Liberties (PUCL) India (Ex.) ]

______


[5]

www.sacw.net |  October 8, 2004

WHO ATTACKED THE PARLIAMENT?*

by Nirmalangshu Mukherji
Department of Philosophy
Delhi University

[September 30, 2004]

On 13 December 2001 at about 11.30 A.M. five 
armed persons entered the Parliament complex in 
New Delhi in a white Ambassador car when the 
Parliament was in session. On being challenged 
near the cavalcade of the Vice-President of 
India, they opened fire. In the exchange of 
gunfire that ensued, all five persons died on the 
spot before they could enter inside the 
Parliament building. Nine other people, including 
some members of the security forces, died in the 
attack while sixteen persons from the security 
forces were injured. A much larger catastrophe 
was barely averted. In terms of the scale of the 
attack and its symbolic significance, it was 
perhaps the most daring terrorist attack on the 
Indian soil in recent years.

The attack led to the adjournment of the winter 
session of the parliament sine die; the nation 
had to spend over rupees one hundred crores to 
reinforce the security of the parliament complex. 
Holding Pakistan responsible for the attack, the 
government mounted a massive military offensive 
that brought India and Pakistan to the brink of 
war with fingers on the nuclear trigger. Prior to 
the attack, the central government failed to get 
the draconian Prevention of Terrorism Act (POTA) 
passed in the parliament despite repeated 
efforts. After the attack, the Prevention of 
Terrorism Ordinance (POTO) was duly converted to 
an Act in a joint session of the parliament. As 
Noam Chomsky put it in the context of 9/11, "The 
authentic threat of terrorism," was sought to be 
exploited "as a window of opportunity for 
intolerable actions."

December 13 was India's 9/11 on other counts as 
well. Both led to a sense of helpless fear and to 
heightened prejudice against the Muslim 
community. In the Indian case, these factors, 
coupled with the enactment of POTA and the 
prospect of an imminent war with Pakistan, 
plunged the nation virtually into a state of 
emergency. Arguably, this enabled the government 
to divert the attention of the nation away from a 
series of scams and electoral defeats. As 
witnessed in the Gujarat elections that followed, 
the fear and the prejudice already generated by 
9/11 grew rapidly after the parliament attack and 
drove people to huddle under state power, as 
elsewhere in the world. Ironically then, even 
though the terrorists failed to destroy the 
parliament building itself, their action left a 
gaping hole in Indian democracy.

Given the grave outcome, it is natural to ask: 
who attacked the Parliament? What exactly was the 
conspiracy? How could the attackers nearly 
succeed in blowing up the building itself? What 
are the domestic and international ramifications 
of this event? What steps have been taken to 
bring the real perpetrators to justice? 
Unfortunately, there are no direct official 
answers to these questions since the government 
never ordered a public inquiry or tabled a white 
paper on the topic.

Nevertheless, the answers may be indirectly 
obtained as follows. The attack on the parliament 
appears to be a singular exception to terrorist 
acts which are usually shrouded in mystery. The 
Delhi police claimed to have shot down all the 
terrorists, numbering five, on the spot. The 
terrorists not only did not blow themselves up, 
they left behind a thick trail of unused arms and 
ammunition, mobile phones supposedly used during 
the attack, addresses, phone numbers, and much 
else. Within days, the Delhi police traced and 
arrested four alleged local conspirators: Mohd. 
Afzal, Shaukat Hussain Guru, Afzan Guru, and S. 
A. R. Geelani. Afzal allegedly identified the 
dead terrorists, the hideouts, and the shops from 
where chemicals, mixer, the attack vehicle etc. 
were purchased. Finally, the police pieced 
together the entire story from the confessions 
made by Afzal and Shaukat. With the help of an 
obliging media, the Delhi police announced to the 
nation within a week that the case has been 
solved.

The case went on trial in 2002 in the Designated 
Special Court for POTA in Delhi and a judgment 
upholding the prosecution's case was delivered 
within months. The judgment was sent to the High 
Court which also delivered its judgment on 
October 29 last year. As per law, the Courts were 
not formally assigned the task of explaining the 
event; their only task was to decide whether the 
prosecution's case against the accused was valid. 
However, the four accused were not charged for 
taking offensive part in the attack; they were 
charged only with conspiring, planning and 
abetting the attack. Therefore, by proving the 
role of the accused in the conspiracy, the 
prosecution has deemed to have shown, at least in 
a broad outline, which terrorist acts and waging 
of war were planned and executed by whom. In 
other words, the proof of guilt in this case is 
also an explanation of the event. By parity of 
reason, if there are doubts about the proof, the 
explanation of the event remains incomplete to 
that extent.

The court judgments and the related material are 
the only official documents available to citizens 
who are anxious to learn the truth about the 
gruesome attack on the Indian Parliament. In the 
absence of any other official paper, we are thus 
compelled to enter into an unfamiliar territory. 
We have no opinion on questions of law, 
admissibility of evidence and the propriety of 
verdicts; needless to say, we do not judge the 
guilt or the innocence of the accused. As the 
angle and style of presentation of this study 
will show, our only concern is to examine whether 
the legal pronouncements contain a plausible 
explanation of the attack on Indian democracy.

Moreover, we are aware that the Parliament attack 
case currently rests with the Hon'ble Supreme 
Court of India. We have no intention or interest 
in interfering with the judicial process; if 
anything, our intention is to co-operate with it. 
As emphasized, we will be exploring aspects 
(viz., the aspects of truth and coherence) of the 
events leading up to the attack on the Parliament 
that do not even directly fall under the 
jurisdiction of the courts; they fall under the 
jurisdiction of an inquiry commission that was 
never constituted. In that sense, we hope that 
our effort will be seen as supplementing the 
judicial process, rather than confronting it.

As we will see, the story presented by the 
prosecution has too many grey areas to be 
credible. In fact, most of the doubts arise from 
a careful study of the High Court judgment 
itself. This is not to deny the possibility that 
it was indeed a genuine terrorist attack, perhaps 
masterminded by some terrorist organization 
across the border. Our only claim is that the 
story that appears in the court documents does 
not enable us to draw any inference either way. 
[...].

[Full Text at: http://www.sacw.net/hrights/Nirmalangshu30092004.html ]

_____


[6]

Economic and Political Weekly, October 2, 2004
Civilians and Localisation of Conflict in Assam
The findings of a participatory research project 
on the impact of armed violence on civilians 
living in Nalbari district of Assam.

[Full Text at:
http://www.epw.org.in/showArticles.php?root=2004&leaf=10&filename=7755&filetype=pdf 
]


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