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Gujarat anti-terror bill & other similar laws must be repealed: Amnesty India

April 10, 2015 | By Parmjeet Singh

Gujarat/New Delhi: A new anti-terror bill passed by the Gujarat state assembly falls far short of international human rights standards and must not receive the President’s assent to be passed into law, Amnesty International India said today. Similar laws already in force in other states and nationally must be immediately repealed.

On 31 March, the Gujarat state assembly passed the Gujarat Control of Terrorism and Organised Crime (GUJTCOC) Bill, 2015. The bill needs presidential assent to become law.

“The Gujarat bill contains several provisions which violate international human rights standards,” said Shemeer Babu, Programmes Director at Amnesty International India. “Indian authorities do have a duty to take affective measures to ensure security. However, security concerns should not be used to jeopardize people’s human rights, including the right to a fair trial, which is guaranteed by the Constitution of India.”

“Instead of weakening criminal procedure safeguards, authorities should be giving the police the training, resources and autonomy they need to prevent and solve crimes.”

The Gujarat assembly had passed similar bills on three previous occasions in 2003, 2008 and 2009. In 2008 and 2009, the then-Presidents had denied assent to the bills.

“Political parties have tried to paint the passing of the bill as a political tussle. But unfortunately, several parties have been guilty of supporting similar laws at the state and national level,” said Shemeer Babu.

“The issue is not one of political ideology, but of a basic lack of respect for the right to a fair trial.”

The GUJTCOC bill is based on similar laws in force in the states of Maharashtra and Karnataka. Similar laws have also existed previously in other states including Arunachal Pradesh and Andhra Pradesh, before being repealed or allowed to lapse.

Below are some of the provisions in the GUJTCOC bill which are incompatible with international human rights standards, and must be repealed or extensively revised:

Definitions of terrorism

Section 2 (1) of the bill uses a sweeping and overly broad definition of “acts of terrorism”. The definition includes, for instance, acts “committed with the intention to disturb…public order”, or “likely to cause…loss of, or damage to, or destruction of, property”.

Similarly, the definition of abetment in the bill covers a range of activities including “communication or association with any person” assisting an organized crime syndicate, or publishing “without any lawful authority, any information likely to assist an organized crime syndicate.”

These broad definitions could threaten several basic rights, including the rights to freedom of expression and association. Organizing a demonstration or protest critical of the government could be labelled and prosecuted as an act of terrorism under the overly broad definition used in the bill. Writing a journalistic report on an act of terrorism could be prosecuted as abetment.

Any definition of terrorism and related acts should be exact and legally precise. Counter-terrorism measures should be necessary and proportionate to countering specific threats of terrorism. The International Covenant on Civil and Political Rights – to which India is a state party – has been interpreted by the UN Human Rights Committee as requiring states to ensure that counter-terrorism measures do not lead to unnecessary or disproportionate interference with freedom of expression.

Extension of pre-charge detention

Section 20 (2) of the bill seek to extend the minimum period of detention of suspects from 15 days to 30 days and the maximum period of detention without charge from 90 days – already far beyond international standards – to 180 days.

The only safeguard provided is that the court should satisfy itself from the prosecution about the progress made in the investigation and the specific reasons for the detention beyond 90 days.

Under Article 9 of the ICCPR, all arrested people be promptly informed of the charges against them and must be entitled to trial within a reasonable time or release. The possibility of long periods of detention without charge increases the risk of torture and other ill-treatment in custody. Such violations have frequently taken place during similar detention in Gujarat and other states. A longer period of pre-charge detention cannot be a substitute for more effective policing and investigation.
Confessions to police officers

Section 16 of the bill seeks to make a confession made by a detainee to a police officer at or above the rank of Superintendent admissible as evidence in court, subject to certain conditions.

Under ordinary Indian criminal law, confessions made to the police are not admissible as evidence because of fears that they may be obtained through torture or other ill-treatment. Other laws that made confessions to police officers admissible have led to several cases of torture. The National Human Rights Commission has said that making confessions to police officers admissible “would increase the possibility of coercion and torture in securing confessions”.

The bill does not contain adequate provisions for safeguards against torture and other ill-treatment of detainees. Section 18 only says that in case of any complaint of torture following a confession to a police officer, the accused shall be medically examined. There is no provision for independent investigation of allegations of torture or other ill-treatment, or for prosecution of police officers where torture or other ill-treatment is found to have been committed, or for ensuring that statements obtained through torture or ill-treatment are not allowed as evidence, as required by international human rights law.

Without the existence of adequate safeguards, making confessions to senior police officers admissible in court will almost certainly increase the risk of torture and other ill-treatment of detainees.

Restrictions on bail

Section 20 (4) places undue additional restrictions on the availability of bail to detainees. It requires that detainees not be released on bail unless the court “is satisfied that there are reasonable grounds for believing that accused is not guilty of committing such offence and that he is not likely to commit any offence while on bail”.

International law makes a presumption in favour of pre-trial release for all persons in detention. As specified in Article 9(3) of the ICCPR, it must not be the general rule to hold people in custody pending trial. The right to liberty requires that deprivation of liberty should always be the exception, and imposed only if it is justified, necessary, reasonable and proportionate in the circumstances of the case. All possible non-custodial measures, such as bail or undertaking to appear, must be explored by the judicial authority before making a decision to remand in custody, and such detention must be regularly reviewed by a judicial authority.

Immunity provision

Section 25 of the bill contains an immunity provision which prohibits the prosecution of any police officer or government official for any action “which is in good faith done or intended to be done” in pursuance of the bill. In doing so, it goes beyond ordinary criminal law, which requires prosecution of a police officer to be conditional on permission from the relevant government.

The absolute prohibition on prosecution violates the non-derogable right to remedy guaranteed to all persons under international human rights law. States have a duty to investigate and prosecute human rights abuses.

The term ‘good faith’ is wide ranging, and it is not clear who should bear the burden of proving it. Officials could claim that even torture of an arrested person suspected of terrorism is an act done in good faith. It is essential that all public officials be held accountable for their actions. Immunity provisions can often lead to absolute impunity for serious human rights abuses including torture and arbitrary detention.

Interception evidence

Section 14 of the bill states that evidence collected “through the interception of wire, electronic or oral communication under the provisions of any other law shall be admissible as evidence against the accused” in court.

Interception of communications can interfere with the right to freedom of expression and association and the right to individual privacy. The bill makes evidence gathered through interception admissible as evidence, but does not lay down safeguards requiring officials to determine whether the communications interception was legitimate: whether it was based on reasonable suspicion, was in accordance with the law, and was strictly necessary and proportionate to meet a legitimate aim.

To help protect against abuse of interception powers, the power to authorize such interception should not be in the hands of the executive alone, but should be supervised by an independent judicial body.
Making evidence obtained through communications interception in a manner that violates international human rights standards admissible in court can violate the right to a fair trial.

Reversal of burden of proof

Section 21 of the bill seeks to reverse certain evidential burdens of grave crimes and require, in certain circumstances, the accused persons to prove their innocence. In these cases, the bill states that “the court shall presume, unless the contrary is proved, that the accused had committed such offence”
Specifically, this section applies where an accused person:

– possessed “unlawful arms and other material including documents or papers” believed to be used to commit an offence; or

– their fingerprints were found at the site of the offence or on “anything including unlawful arms and other materials like documents or papers and vehicles” used in the offence; or

– they provided financial assistance to anyone knowing that they were suspected or accused of a terrorist act or organised crime.

The right to be presumed innocent is a norm of customary international law – it applies at all times and in all circumstances, and is an essential element of the right to a fair trial and the rule of law. By reversing the burden of proving guilt, Section 21 of the bill violates the presumption of innocence until proven guilty.

India’s earlier national anti-terror legislations, the Prevention of Terrorism Act 2002 and the Terrorist and Disruptive Activities (Prevention) Act 1985 contained several provisions that were similar to the GUJTCOC bill. They were repealed respectively in 2004 and 1996 after criticism that they were widely abused and enabled serious human rights violations including arbitrary detention, torture and fabrication of evidence.

The Unlawful Activities (Prevention) Act, which is in force across India, also contains several similar provisions. Human rights groups in India have highlighted several instances where the UAPA has been abused, with the use of fabricated evidence and false charges to detain activists defending the rights of Adivasi and Dalit communities and peacefully exercising their rights to freedom of expression and association. In February 2012, the UN Special Rapporteur on the situation of human rights defenders called for the repeal of the UAPA.

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Related Topics: Amnesty International, Human Rights, Indian State, UAPA

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