The Reuters (September 11, 2020) stunned readers by reporting that `Indian state uses draconian law to detain those accused of killing cows. The northern state has used the National Security Act (NSA), which allows for those deemed a threat to national security to be detained without charge for up to a year, almost 140 times in the first eight months of the year.“The NSA has been invoked in 139 cases across Uttar Pradesh, of which 76 have been against the slaughter of cows,” Awanish Awasthi, a top state official, said in a statement. The NSA has been invoked in 139 cases across Uttar Pradesh, of which 76 have been against the slaughter of cows…Uttar Pradesh Chief Minister Yogi Adityanath has repeatedly urged use of the NSA to combat law and order issues in the state of more than 200 million people. The NSA, which Indian rights activists have described as draconian, is also frequently used in the contested region of Kashmir to detain people suspected of separatist activity’..
The northern state has used the National Security Act (NSA), which allows for those deemed a threat to national security to be detained without charge for up to a year, almost 140 times in the first eight months of the year. For instance, several intellectuals (poets, historians, lawyers) were arrested under the NSA. Their sole offence was to air dissent against government policies in regard to the treatment of minorities. Gautam Naulakha was arrested for simply attending a Kashmir conference, organized by Dr. Ghulam Nabi Fai, in the USA. Normally, intercepted phone conversations are used to get punished by Indian Kangaroo courts. But, for want of intercepts, the prosecution alleged that he talked in `codes’, and was linked to Naxalbaris and Kashmiri `terrorists’. The NSA is a handy law to send an innocent person to gallows.
SAR Geelani’s case: Isn’t it eerie that the penal law (Prevention of Terrorism Act) of the world’s greatest democracy attaches evidentiary value to the telephonic, telegraphic and internet conversations. Any mischievous police officer with a malafide intent can misinterpret a conversation to send a person to the gallows.
The brutality of this came into limelight when Professor Geelani was awarded the death penalty by the ‘fast-track’ court on the basis of the wrong translation of the three words ‘Delhi kya korua’, ‘what has happened in New Delhi’, picked up from his one-minute conversation with his brother.
Afzal Guru’s hanging based on confessions obtained under torture: He was convicted in the Parliament House attack case. On October 21, 2004, in New Delhi’s Tihar jail, he wrote a letter to his lawyer, Sushil Kumar, a senior advocate in the Supreme Court. In a letter addressed to his lawyer, he had alleged that he had to confess under duress. Guru blamed that Davinder Singh tortured him to confess. One of Davinder Singh’s “torture inspectors” was Shanti Singh. He “electrified him naked for three hours, and made him drink water while giving electric shocks through telephone instrument” Guru claimed that the Designated Court (the trial court) had sentenced him to death on the basis of the police version of the case and under the influence of the media.
Torture is legal in India: Since 14 October 1997, India has been a signatory to the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment. Yet it has not yet ratified the convention.
India’s draconian laws, including Section 4 of the Armed Forces Special Powers Act, 1990, as pointed out in international reports, allows any person operating under the law to use lethal force not only in cases of self-defense but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”. In India, torture is legal
Victoria Schofield graphically depicts the behaviour of Indian forces in Kashmir in Chapter 15: Hearts and minds of her 1996 book, Kashmir in the Crossfire. Her observations are still relevant today.
Several other reports document torture, custodial killings, and molestation in India. One such report is the United Nations High Commissioner for Human Rights, June 14 “Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit–Baltistan” by the Office of the United Nations High Commissioner for Human Rights (OHCHR). Its 49 pages have 388 footnotes, citing, mostly, Indian records such as official statements in Parliament, while refusing the U.N’s repeated requests for on-site inspection.
Major recommendations of the report include: (1) `UN Human Rights Council to consider establishing a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.”(2) `It is essential the Indian authorities take immediate and effective steps to avoid a repetition of the numerous examples of excessive use of force by security forces in Kashmir’.(3) Repeal of the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSPA) Jammu and Kashmir Public Safety Act 1978 “urgently” and also “immediately remove the requirement for prior central government permission to prosecute security forces personnel accused of human rights violations in civilian courts.’
The report says `Impunity for human rights violations and lack of access to justice are key human rights challenges in the state of Jammu and Kashmir, noting that AFSPA and Jammu and Kashmir Public Safety Act 1978 (PSA) have created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.
Other laws to declare anyone a `terrorist’ or a `traitor’: Besides the NSA, India has a slew of other draconian laws under which it carries on its reign of terror in `disturbed’ and peaceful states like. These laws, inter alia, include Armed Forces’ Special Powers Act, Public Safety Act, Unlawful Activities Prevention Act, and the National Investigation Agency (NIA) Act. Local and international human-rights organisations have condemned these laws. They have documented the detention of children, older people and the disabled in custody incognito without trial. Amnesty documented several cases of custodial deaths, rapes, and arson. In a bid to enhance the jurisdiction of the anti-terror-probe agency NIA, the legislature has amended (July 24, 2019) the National Investigation Agency Act and the Unlawful Activities (Prevention) Act. Now, they are empowered to declare anyone a `terrorist’, at home or abroad. Even a telephonic conversation with a dubious fund-giver could be a ground for being so declared. The Naxalbaris, pro-Khalistan activists and Kashmiris are the obvious targets.
National Safety Act” It was employed to arbitrarily arrest 160 Muslim men in Uttar Pradesh with the connivance of Hindu monk chief minister Yogi Adityanath.
Unlawful Activities (Prevention) Act: In August, the (UAPA) was used to arrest five human rights activists, by accusing them of being “Naxals” operating against the state. Well-known persons including poets and teachers were arrested simply for showing sympathy for the oppressed Naxalbaris. In 2000, the NSA was used in Uttarakhand to target two civil rights activists Jasodhara and Abhijit Dasgupta, who ran the NGO, Sahayog. They had published a booklet, AIDS aur Hum, promoting sexual health. For nearly a month before the offices of Sahayog were ransacked, both staff and trainees at their field office roughed up, and leading activists arrested, the local media in the region had been carrying on a campaign against the group, targeting, in particular, the booklet.
Public Safety Act: It is being used in Kashmir to arrest innocent people dubbed as “suspected militants, following Burhan Wani’s death in 2016. Most of the FIRs are “open FIRs.” The police appends the words “and others” to arrest anyone, not named in an FIR.
Inferences: Draconian laws are enforced under a veneer of patriotism. It is rightly said ` Patriotism is the last refuge of a scoundrel’ (Samuel Johnson). “Patriotism is your conviction that this country is superior to all other countries because you were born in it” (George Bernard Shaw). “Guard against the impostures of pretended patriotism’ (George Washington). “When a whole nation is roaring patriotism at the top of its voice, I am fain to explore the cleanness of its hands and purity of its heart (Ralph Waldo Emerson).” “The feeling of patriotism – It is an immoral feeling because…each man under the influence of patriotism … commits actions contrary to his reason and conscience …To abolish war it is necessary to abolish patriotism” (Leo Tolstoy). “One of the great attractions of patriotism…we are able, vicariously, to bully and cheat. … With a feeling that we are profoundly virtuous (Aldous Huxley).” “It is lamentable, that to be a good patriot one must become the enemy of the rest of mankind (Voltaire).”
India must understand that draconian laws are incompatible with a constitutional democracy.
Mr. Amjed Jaaved has been writing freelance for over five decades. He has served the federal and provincial governments of Pakistan for 39 years. His contributions stand published in the leading dailies and magazines at home and abroad (Nepal. Bangladesh, et. al.). He is the author of eight e-books including The Myth of Accession. He knows many languages including French and Arabic.