Dr. N S Soman, ((B.Sc., D.S.S., LL.B (Kerala), LL.M, Ph.D (Cochin).))Associate Professor, School of Legal Studies, Cochin University of Science and Technology, Kochi-22, Kerala.
There are universally accepted norms for the Protection of human rights. International standards and norms for the protection of human rights are incorporated in the International Bill of Human Rights comprising of Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. Efforts are also made in national level to protect basic rights of individuals in their confrontation with the state authorities. Recognition and protection of common law rights in U.K., elevation of these rights into the level of constitutional rights through a set of Bill of Rights as the case in U.S. and India are some of the notable instances.
Both in national as well as in the international scheme of protection of human rights there is room for the government to take steps to see that individual rights does not go against larger social interests. Inherent limitations of the rights themselves as well as the reasonable restrictions that could be imposed on the exercise of the recognized rights are instances of the power of the government to interfere in the area of guaranteed fundamental rights. Apart from this there could also be total negation of the guaranteed rights by the government when the situations are such that such extreme steps are required for the preservation of the national interest. International Human rights law also recognizes the need for such derogation from the obligations for the protection of human rights. This power is conceded to the national states on strict international supervision. Even in cases where it is permitted the derogation could be resorted only to the extent required to meet the emergency. Such derogation could be extended only to the shortest period required for tiding over the difficulty faced by the government. This paper is an attempt to study the emergency powers exercised by the executive under special legislations and the response of Indian Supreme Court towards these extraordinary measures. It is also attempted to examine how the international machinery responds to the government of India’s move in this direction.
National Security Act
Challenges to national security ((“National Security can be defined as part of the Government policy, having as its objective the creation of national and international conditions, favorable to the protection or extension of vital national values against existing and potential adversaries” .K.M.Mathur, Challenges to Police Human Rights and National Security, Kalpoz Publications, Delhi (2003) at p. 233.))prompt states to adopt special legislations, which grant extensive powers of arrest and detention as well as use of force. The National Security Act, 1980 was enacted to use in areas of armed conflict against those who are engaged in such conflict. However in several instances its provisions were resorted to by the governments to deal with ordinary criminals in relatively calm states and areas ((This was despite an assurance given by the Government of India to the United Nations Working Group on Enforced or Involuntary Disappearance in 1997 that the Act had only been implemented ‘in periods of crisis in order to protect the citizens against terrorism.’ Report of the Working Group on Enforced or Involuntary Disappearance, U.N.Doc.E/CN4/1997/34 at 36 as cited in Venkat Iyer, Dtate of Emergency, The Indian Experience, Butterworths India, New Delhi, (2000) at p. 217)). By this unintended use of the special legislation the government circumvents the obligation under the ordinary law to produce the arrestee before a magistrate within 24 hours. This gives the authorities ample time to subject the detainees to lengthy interrogation, including under torture, without the fear of judicial intervention ((This was the finding of an official commission of enquiry headed by a high court judge, C.S. Tiwana, J., which investigated the arrests. Amnesty International, India: The Need to Review Cses against 324 Sikhs Held for more than Four Years in Jodhpur Jails, Rajasthan, London, September, 1988, A1 Index: ASA 20/03/88 at 9-10 as cited in Venkat Iyer, State of Emergency, The Indian Experience, Butterworths India, New Delhi, (2000) at p. 217-218)).
Preventive Detention
India is the only country where preventive detention is resorted to in peacetime. Attempts to challenge the preventive detention scheme, was unsuccessful. In A.K. Gopalan ((A.I.R. 1950 S.C. 27))the court ruled out the possibility of reading into the constitution any concept of fairness or natural law elements and took a narrow view of the issue and allowed the positivistic doctrine to have its say in the matter. The position has changed in Maneka Gandhi ((A.I.R.1978 S.C. 597))decision. The newly found out ‘just, fair and reasonable’ procedure gave an opportunity to challenge the preventive detention law in A.K.Roy v. Union of India ((A.I.R. 1982 S.C. 710)). The Supreme Court upheld the Constitutional validity of the National Security Act.The principles of natural justice were resorted to by the petitioner to challengethe procedure laid down in sections 10 and 11 of the National Security Act, 1980. It was argued that the denial of the right to cross examine the detaining authority and the persons on whose statements the order of detention is founded is violative of natural justice and the procedure thereby becomes unfair. It was also argued that since the Act neither give the detenu the right to present oral and documentary evidence in rebuttal of the allegations made against him nor the right to be represented by a lawyer of his choice before the advisory board it is violative of constitutional rights. The Supreme Court did recognise the importance of natural justice principles, which constitute the core of just process. The court pointed out that the above-mentioned rights are essential to disprove the allegations made against a person and to establish the truth. But the court observed that there is no prescribed standard of reasonableness. That being so what kind of procedural rights should be made available to a person depends upon the proceeding in relation to which the rights are claimed. It is also made clear by the court that the question as to what kind of rights are available to the detenu in the proceedings before the advisory board has to be decided in the light of the constitutional provisions. Preventive detention being provided under the Constitution, the court observed, the statutory provisions to that extent do not offend the Constitution. In short the court refused to examine the justness or farness of the procedure adopted in preventive detention.
The court refused to accept the claim of right to cross-examine the witnesses in proceedings before the advisory boards. The rules of natural justice being one capable of fluidity and varying content the ambit of those rules must vary according to the context, the court observed. The elements of natural justice to be allowed in a particular instance have to be tailored to suit the nature of proceedings in relation to which the particular right is claimed as a component of natural justice. The question for consideration of the advisory board is not whether the detenu is guilty of any charge but whether there is sufficient cause for his detention, which is decided on subjective satisfaction of the detaining authority. The proceeding of the Advisory Board has therefore to be structured differently from the proceedings of judicial or quasi-judicial tribunals ((Id. at p. 749)). In such a context, the court observed, there is no relevance for the right of cross-examination ((Cross –examination may be necessary in proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Cross –examination is a powerful weapon to expose the untruthfulness of such evidence. The detention is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt.)). Another reason pointed out by the court is the unwillingness of the witnesses to come forward and the impracticability of conceding the right of cross-examination to a detenu in such cases. There may also be cases in which the sources of information of detaining authority cannot be disclosed without detriment to public interest. In these circumstances it is not possible to give to he detenu the right of cross-examination of witnesses. However, it is open for the detenu to lead evidence in rebuttal. It is within the power of the advisory board to regulate its own procedure and limit the time within which the detenu must complete the evidence. This is to ensure that the board could complete the proceedings within a limited period.
The right to consult and defended by a legal practitioner of his choice is a guaranteed right for any person arrested and detained ((Constitution of India 1950, Article 22 (2).)). However this right is not conceded to a person arrested and detained under any law of preventive detention ((Id. Article 22 (3).)). In view of this, the court observed, it is difficult to hold that the detenu has the right of legal representation before the advisory board. Since the Constitution itself contemplates that such a right should not be made available to a detenu, its denial cannot be said to be ‘unfair, unjust or unreasonable’. Though he court stick on to the requirement under Article 21 that the procedure adopted to curtail liberty must be ‘fair, just and reasonable’ it is not ready to go to its logical conclusion. The court reasoned that when the Constitution itself provides a yardstick, it would be difficult to hold that lack of legal representation is unfair, unjust or unreasonable. A holding to the contrary ought to have possible had the constitution been silent on this matter. That choice was not open to the courts because of the express language of Article 22 (3) (b) read with Article 22 (1). ((Supra. n. 6. at p. 745))The court added that no party, neither the government nor the detaining authority, nor the detenu would have legal representation before the board. If the detaining authority or the government takes the aid of a legal practitioner before the board, the detenu must be allowed to have the same facility. If this were not done it would amount to a breach of Article 14. The court banned the practice of government officers appearing before the board to justify detention orders by pointing out that this amount to doing ‘indirectly’ what could not be done ‘directly’. These officers should also be regarded as legal practitioners, the court pointed out. The court observed further that regard must be had to the substance and not the form. In Nandlal v. State of Punjab ((A.I.R 1981 S.C. 2041)), while denying the request for legal assistance by the detenu the board allowed legal representation to the detaining authority. The court held that this is an arbitrary action and vitiates the impugned order. The court clarified the position that though the detenu had no right to legal assistance in the proceedings before the board, the board was not precluded from allowing such assistance. This is more so when the board allowed legal representation to the state. Arbitrariness of procedure adopted by the advisory board would vitiate the order of preventive detention ((The court emphasized that the board’s procedure must be just and fair to both the parties. The court went on to suggest that Parliament should provide for legal representation before the advisory board in the law.)).
International response
Section. 8(2) of NSA allows the authorities to keep the grounds of arrest secret from the detainee, and s. 11 provides a period of up to seven weeks for the review of detentions by an Advisory Board. Even where the grounds of arrest are given, their communication to the detainee may take up to five days in normal circumstances, up to ten days in ‘exceptional’ circumstances. These provisions in the National Security Act was found to be incompatible with art 9 of the Covenant which requires that any arrested person be informed of the reasons for his arrest ‘promptly’ ((ICCPR Article 9 (2). Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.))and be given an opportunity to take proceedings before a court so that it is be able to decide ‘without delay’ on the lawfulness of the detention ((Id. Article 9 (4). Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful)). These periods ‘are very considerably longer than would be compatible with art 9(4) of the Covenant’ ((U.N.Doc.CCPR/C/SR.1041, para 62. Professor Higgins drew the attention of the Attorney General of India to the fact that the United Kingdom, which had legislation that provided for administrative detention for the much smaller period of up to seven days, found it necessary to enter a derogation under art 4 of the Covenant. This criticism was repeated in 1997 by another member of the Committee, Mr. Fausto Pocar, who said that ‘a five-day period for informing detainees of the grounds for their detention and a three-week period for bringing them before the Advisory Board [are] incompatible with art 9, para 3 of the Covenant’-U.N.Doc.CCPR/C/SR.1604, para 31)).
The Committee was, concerned over the inordinately long period for which a person could be kept in preventive detention under the Act ((The period is 12 months under NSA.)). This was pointed out as against the ‘principle of proportionality’ ((U.N.Doc.CCPR/C/SR.1603,para 76 (remarks of Mr. David Kretzmer); see also, U.N.Doc CCPR/C/SR.1064, para 16 (remarks of Mr. Eckart Klein).)). This aspect of the law was pointed out as contrary to art 14(3) of the Covenant ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).)).
The Committee has also expressed the view that preventive detention being a restriction of liberty imposed as a response to the conduct of the individual concerned, ‘the decision as to continued detention must be considered as a determination falling within the meaning of Article14, para 1 ((Supra n. 14 Article14 (1). All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.)), of the Covenant’. That being so ‘the question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with that article’. ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).))The Committee was not persuaded that the Advisory Boards as constituted at present met that standard. It was pointed out that the ‘members of the Advisory Board were appointed by the executive, which would mean that they could also be dismissed by the executive’. This was pointed out, as a provision appeared to contravene a detainee’s right under art 14 ((Remarks made by Mr. Fausto Pocar during the examination of India’s third periodic report, U.N.Doc.CCPR/C/79/Add.81,para 24.)). The Committee rejected the government of India’s argument that art 14 did not apply to preventive detention because criminal proceedings proper had not begun at that stage. It was pointed out that though that may be true in case of Indian domestic law, but care should be taken to avoid too literal an interpretation of the expression “determination of any criminal charge” in [art 14 (1)] of the Covenant’. ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).))Furthermore, the Committee has expressed concern over the prolonged failure of the Government of India to bring into force s. 3 of the Constitution (Fourty-fourth Amendment) Act 1978 which introduced certain safeguards for persons subject to preventive detention.
Thus, the Human Rights Committee raised serious issues of concern, on the compatibility of the security legislation with India’s obligations under the Covenant. They referred to the reservation concerning art 22 of the Indian Constitution, which provided for preventive detention without the legal safeguards embodied in art 9 of the Covenant. By introducing such sweeping reservations, the Government of India had tried to circumvent the need to enter formal derogations under art 4. This strategy is adopted whenever the Government failed to give full effect to the Covenant’s provisions ((U.N.Doc.CCPR/C/SR.1042, para 7 at 2)). The reservations made by India were pointed out as ‘incompatible with the object and purpose of the treaty’ ((U.N. Doc. CCPR/C/SR.1604 dated 7 November 1997, Para 34 (Comment of Mr. Prado Vallejo).))a course of action which member-states were expressly forbidden to adopt ((General Comment No.24 of the Human Rights Committee, adopted on 2 November 1994, U.N.Doc.E/1995/49.)). The Committee has repeatedly called upon India to review its reservations with a view to withdrawn them ((U.N. Docs. CCPR/C/SE.1039, para 24; CCPR/C/SR 1042, paras 3, 7, 19, 21 and 28 ; CCPR/C/79/Add.81,para 14.)).
Special Emergency Legislations
Special legislations purported to be enacted to use in unusual circumstances incorporate provisions in variance from the ordinary criminal procedure. It establishes special courts with power to sit anywhere including in camera. It can also keep identity and addresses of witnesses’ secret ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 12(2) The Committee noted the wide divergence of the Act from the fair trial guarantees contained in art 14 of the Covenant. Referring to the secrecy provisions in TADA, it was observed thus: Witnesses could keep their identity and address secret, the court [could] determine where it would hold its hearings and the decisions would not be published. My question is how can one reconcile such provisions with the Covenant, particularly Art 14, since these courts dealing with terrorist activities may pass death sentences?[1][Remarks of Mrs. Chanet, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11- summarised in U.N.Doc.CCPR/C/Sr.1041, para 67])). It incorporated provision, which authorized detention in police custody up to 30 days ((Terrorist Affected Areas (Special Courts) Act 1984, s. 15 (2).))or even 60 days ((Terrorist and Disruptive Activities (Prevention) Act 1985, s.17 (2) (b).)), where the normal rule limits it to 15 days ((The Code of Criminal Procedure, 1973 s. 167 (2) (a).)). An accused could be kept in judicial custody pending investigation up to one year ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 15(2).)). The Act empowered the executive Magistrates to examine and remand accused persons ((Terrorist and Disruptive Activities (Prevention) Act 1985, s. 20 (2) and (3).)). They can record statements and confessions ((Ibid.)). Bail made very difficult by requiring hearing the Public Prosecutor before issuing an order on the bail application of the accused ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 15(6).)). The confessions made to the police officer made admissible in trial ((Terrorist and Disruptive Activities (Prevention) Act 1985, s.15.)). It also incorporated presumption of guilt in certain cases ((It is provided that a presumption of guilt is to be drawn in cases where arms and explosives are recovered from the possession of the accused or his finger prints are seen in the scene of crime or his co-accused made a confession or the accused himself made a confession to any person other than a police officer. [This aspect of TADA was found by the Human Rights Committee as incompatible with art 14 of the ICCPR. [Section 21, TADA 1987] This provision was characterized as ‘completely unacceptable’. [Remarks of Mr. Aguilar, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11-])). The above-mentioned special provisions, which are in variation from the general law of the land, were found to be in tune with the Constitutional Guarantee of Fundamental Rights ((Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569[the grounds included: Parliament’s lack of competence in enacting the Act, having regard to the fact that ‘law and order’ was a state subject and not a federal subject; the vagueness of certain terms used in the Act, eg. ‘abetment’ of terrorism; the Act overlap with ordinary criminal law and the possible discrimination this may led to in the launching of prosecutions; the extreme harshness of some of the Act’s provisions, eg. The presumption of guilt when a person is found with or near a cache of arms and ammunition; the Acts breach of well-recognised fair-trial norms, eg. The power of designated courts to hold trial’s in camera and keep the identity of witness secret; the Act’s contravention of the constitutional doctrine of division of powers, eg. By allowing executive magistrate to perform judicial tasks; and the Act’s disregard of the principles of natural justice, eg. By the absence of a requirement that an accused person be heard before his case is transferred from a designated court in one state to that in another. The petitioner also raised the question as to whether some of the curtailments of fundamental rights and freedoms which proceeding under the Act entailed could be justified in the absence of a formal proclamation of emergency.])). The court rejected most of the challenges and ruled that the Act was, largely in conformity with the constitutional guarantees of individual liberty, equality and procedural fairness. In particular, the court held that it was within the competence of Parliament to treat terrorist suspects different from the suspected of ordinary crime noting that:
Everyday, there are jarring pieces of information through electronic and print media that many innocent, defenseless people particularly [the] poor, politicians, statesmen, government officials, police officials, army personnel…have been mercilessly gunned down. No one can deny these stark facts and naked truth by adopting an ostrich-like attitude completely ignoring the impending danger ((Id. at pp. 621-22.)).
Of course they did point out some areas, which require reconsideration to make the law fairer. The court suggested to constitute Committees to carry out periodic reviews to ensure that no area continue to be designated as ‘terrorists affected areas’ for longer than is strictly required ((Id at p. 711 para362. [The Human Rights Committee has also questioned the unduly long periods for which declarations of ‘disturbed areas’ have been in force, and noted that the terms of the Act allowed for such declarations to run indefinitely without any review of the factual situation which gave rise to them. This was clearly contrary to art 4 of the Covenant, which required all exceptional measures derogating from states-parties’ obligations under the Covenant to be of a strictly temporary nature.[The Human Rights Committee, in its General Comment No.5, has expressed the view that: measures taken under art 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that in time of emergency the protection of human rights become all the more important, particularly those rights from which no derogation can be made.])). The court also emphasized the need to disclose the identity, names and addresses of witnesses appearing in special courts before the commencement of the trial, unless there are weighty reasons for concealment of this information ((Id. at p. 689 para 290)).
It is to be noted that the court is not unaware of the misuses of the law by the police. The court observed thus:
We have come across cases wherein the prosecution unjustifiably invokes provisions of the TADA with an oblique motive of depriving the accused person from getting bail and in some cases when the courts are inclined to grant bail in cases registered under the ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of TADA in cases, the facts of which do not warrant it, is nothing but sheer misuse of the Act by the police ((Id. at p. 707 para 352.[ Members of the Committee also assailed the indiscriminate application of the Act. Professor Higgins, for instance, deprecated the practice whereby TADA has been used in states such as Gujarat to tackle ordinary crime. She found this ‘disturbing’, because it detracted from the government’s own self-proclaimed policy of enacting the law to fight terrorism and As with the other special security legislation, the Committee was concerned that TADA had been used without a proper derogation being filed under art 4 of the ICCPR, even though it derogated from several of the Covenant’s rights. Emphasizing that any such derogation had to be justified by reference to the terms of that article, members doubted if the Act met the ‘strictly required’ test laid down therein. [Remarks of Professor Higgins, U.N.Doc.CCPR/C/SR.1042, para 14.] They believed that TADA, along with the Armed Forces (Special Powers) Act, effectively established ‘a continuing state of emergency’ without one being declared as such and without it being subjected to any time limit.[U.N.Doc.CCPR/C/SR.1030, para 42 (remarks of Mr. Agilar).][Remarks of Mr. Aguilar, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11- See also, U.N.Doc.CCPR/C/SR.1041, para 63.])).
However, the court seems to have influenced by the need to resort to stringent provisions to combat terrorism even at the cost of denial of procedural fairness to the persons caught in the web of criminal law. Thus, it could be seen that the constitutional scheme of protection of fundamental rights does not prevent the legislature and the executive from adopting extraordinary measures. This position is not in tune with what the International Human Rights jurisprudence require.
Torture is universally disapproved. Right against torture is a non-derogable right. And all the advanced legal systems provides for exclusion of confessions obtained through coercion and torture. It is also to be noted that exclusion of evidence obtained through such violations also reduce the possible abuse of the power by the police authorities considerably. Indian law requires that an arrested person have to be produced before the magistrate within 24 hours of his arrest ((Supra, n.32 s. 57)). Prolonged detention in police custody is to be adopted only if the magistrate authorized it ((Id. s. 167 (2) (a).)). Again in no case the magistrate can authorize detention in police custody for more than 15 days ((Ibid.)). It is also provided that a confession made to a police officer is inadmissible ((Indian Evidence Act, 1872 s. 25)). All these requirements under the general procedural law have been tilted under the special emergency law adopted by the Parliament. Now it is possible for the police to extract confessions by using the unusual powers. For remanding a person into police custody it does not require the intervention of a judicial officer. It is sufficient if an executive magistrate authorizes it. The executive magistrate could record confessions. Moreover the confessions given to a police officer could be proved before the court. Coupled with these relaxations of the procedures the adverse presumption of guilt, which the court could draw, adds to the peril of the accused. All these factors create a situation wherein the procedural safeguards against possible abuse of power by the police, available under the normal procedural law, no longer available for a person caught under the special legislations. This makes the position of the accused person precarious and is liable to compromise in his liberty.
Under the international human rights law deviation from the basic obligations created therein is possible in specified cases. For example Article 4 of the ICCPR ((Supra n. 14 Article 4 (1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. (2) No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. (3) Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.))provides for derogation. Derogation can be exercised in case of public emergency, which threatens the life of the nation. It is required that the existence of such an emergency shall be officially proclaimed. When these conditions are satisfied the state parties could resort to measures derogating from their obligations under ICCPR. This derogation shall only be to the extent strictly required by the exigencies of the situation. It is provided further thatthe measures so adopted under the power of derogation shall not be against any other international obligations. Again such a measure shall not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Any state which avails the right of derogation is duty bound to inform other state parties through the Secretary-General of the United Nations. This notification shall contain the provisions from which the state has derogated as well as the reasons for the same. Termination of the derogation shall also be notified likewise.
In this context it is to be noted that the actions of the Government of India is criticized as incompatible with the requirements under the international human rights obligations. It was pointed out that the laws resorted to by the Government of India, infringed a large number of rights guaranteed by the ICCPR. The Government of India resorted to this unusual emergency measures, which are incompatible with the ICCPR, without entering formal derogations under art 4 of the Covenant ((It raised this issue as far back as 1984 during its examination of India’s first periodic report, but received no satisfactory response from the Government which merely insisted that ‘the rights specified in art 4 from which no derogation was allowed were fully preserved under the Indian Constitution even during emergency’-see, U.N. Doc.CCPR/C/SR.493, para 20, and CCPR/C/SR.498,para 8)). The Human Rights Committee has expressed deep concern over this practice. It has been repeatedly pointed out that special security legislation ((The National Security Act, the Armed Forces (Special Powers) Act and the Terrorist and Disruptive Activities (Prevention) Act))contained provisions, which effectively derogated from the rights contained in arts 6 ((Supra n. 14 Article 6: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.)), 9 ((Id. Article 9: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation))and 14 ((Id. Article 14: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.))of the Covenant ((U.N. Doc.CCPR/C/SR.1041, para 61-63 (remarks of Prof Higgins); ibid para 76 (remarks of Mr.El-Shafei); U.N.Doc.CCPR/C/SR.1042,para 16 (remarks of Mr.Aguilar).)). This practice of the Government of India resulted in a situation of a continuing state of emergency without it being officially proclaimed as such ((U.N.Doc.CCPR/C/SR.1039, para 42 (remarks of Mr. Aguilar).)). It was aired the concern whether the special laws enacted by India met with the test of ‘strict requirement’ laid down in Art. 4 ((U.N.Doc.CCPR/C/SR.1042, para 14. [. For the text of Article 4 see supra. n.48])). The Government of India tried to justify the practice by pointing out that the special laws are enforced in some regions only and not through out India. The Human Rights Committee rejecting this justification observed that ‘they are still derogations of rights under the Covenant and would require notification to [the Committee]’ ((Remarks of Prof Higgins, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Committee, London, March 1993. AI Index: ASA20/05/93 at 7)). The special law has been seen to contravene the guarantee of the right to life contained in art 6 of the Covenant. The existing practice, the Committee pointed out, led to ‘de facto declaration of emergency which were not in line with the Covenant’s provisions’ ((U.N.Doc.CCPR/C/SR.1603, para 73 (remarks of Mr. David Kretzmer).)).
The Constitution of India does not provide for any non-derogable rights in par with the requirements of article 4 of the Covenant ((U.N.Doc.CCPR/C/SR.493 (remarks of Sir Vincent Evans during the Committee’ examination of India’s first periodic report).)). Committee has questioned the rationale of this constitutional position ((Except the right to life and personal liberty (art 21) and the prohibition against retroactive legislation (Art 20).)). The provisions in the Constitution of India, allows automatic suspension of various fundamental rights during emergencies. The Committee wondered whether there existed any legal mechanism to ensure the proportionality principle implicit in the Covenant ((U.N.Doc.CCPR/C/SR. 494, para 7 (remarks of Mr.Christian Tomuschat). The Attorney General of India did not make any direct response to this query.)).
Armed Forces (Special Powers) Act
The Armed Forces (Special Powers) Act empowered the civil authorities to resort to the help of Army to repress civil disturbances from the part of militants. As such army personnel are deployed in specified areas to resort to drastic powers to bring the ‘disturbed areas’ under control and bring them back to normalcy. However in practice the powers seen to work against the normal administrative system resulting in situation wherein the civil authorities are made helpless and powerless and the Army was running a parallel government. In this context the following observation is relevant.
“The civil law has, unfortunately, ceased to exist in Senapati District in Manipur due to the excesses committed by the Assam Rifles with complete disregard shown to civil administration. The Assam Rifles are running [a] parallel administration in the area. The Deputy Commissioner and Superintendent of Police were wrongly confined, humiliated and prevented from discharging their official duties by the Security Forces ((Cited in Amnesty International, India: ‘Operation Bluebird’-A Case Study of Torture and Extra Judicial Execution in Manipur, London, October, 1990 AI Index: ASA 20/27/90 at pp. 60-61 as quoted in Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 250.)).”
The Joint Secretary for Home who, after a visit to the area along with the Chief Minister of the state, wrote as follows endorsed this complaint:
“The Assam Rifles authorities have been behaving with the civil administration in an extremely contemptuous manner and treat virtually every civil functionary as anti-national. This has led to a virtual collapse of civil administration in the area as the government official[s] visiting the area is scared of torture/harassment at the hands of [the] Assam Rifles ((Cited in Amnesty International, India: ‘Operation Bluebird’-A Case Study of Torture and Extra Judicial Execution in Manipur, London, October, 1990 AI Index: ASA 20/27/90 at p.61 as quoted in Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 251.)).”
The constitutional validity of The Armed Forces (Special Powers) Act was challenged in Naga People’s Movement of Human Rights v. Union of India (([1998] 2 S.C..C. 109)). The Supreme Court rejected the challenge and held it to be constitutionally valid. Section 3 of the Act, authorized the government to declare an area as ‘disturbed area’. This provision was challenged before the Supreme Court. It was argued that the provision is vague and fails to provide any guidelines in identifying an area as ‘disturbed area’. The court rejected the argument and held that the requirement that there must exist a grave situation of law and order, which warranted the use of armed forces in aid of the civil power, was sufficient guidance ((Id. at p. 140)). However the court took care to read into the statutory scheme an implied duty on the government to review periodically the gravity of any situation, which gives rise to declaration of ‘disturbed area’. The court further held that such reviews must take place at least once in every six months. The court further added that even in cases where the government finds it necessary to continue a declaration, it is duty bound to look at the feasibility of reducing its geographical extent ((Id. at p. 141.)).
Though it was attempted to challenge the provisions of the Act as arbitrary since it conferred extensive powers (including the power to use lethal force) on relatively low ranking non-commissioned officers, the court refused to accept the argument. Such officers, said the court, usually had considerable status and experience and could be trusted with important powers ((Id. at p. 143-144.)). The court also rejected as untenable the argument that the power to open fire (even to the causing of death) conferred by the Act was unreasonable and arbitrary. The court pointed out that these powers are conferred with sufficient safeguards. In order to exercise the powers certain conditions are to be satisfied. Firstly there should exist a prohibitory order at the time. Secondly the circumstances should be such that opening of fire is required to maintain public order and lastly, due warning had been given for the intended action ((Id. at p. 145)). The Act requires that a person arrested by the armed forces is to be handed over to the nearest police station ‘with the least possible delay’. The court construed the provision to mean that every such person would have to be taken to the nearest police station soon enough as to enable him or her to be produced before a magistrate within 24 hours of arrest, as required by Art. 22 of the Constitution ((Id. at p. 146)). It was also ruled by the court that there is a duty to hand over any property or arms, ammunition or explosive substances seized by the armed forces to the nearest police station ‘with the least possible delay’. This, the court said, is implicit in the Act. The reason for such a reading is that such property or material would be required to be tendered in evidence in any criminal proceedings that may follow ((Id. at p. 147)). According to section 6 of the Act prior sanction of the government is required to initiate legal proceedings against any member of the armed forces acting under the Act. This was challenged as discriminatory and arbitrary. It was argued that the provision conferred arbitrary power to government since the Act does not provide for any guidelines in exercising the power. The court rejected the plea and pointed out that such a distinction had already existed under ordinary law, and this had been held to be lawful by previous judgment of the court ((Id. at p. 150 The reference here is s.197 of Cr.P.C and the decision in Matagog Dubey v. H.C.Bhari, (1955) 2 S.C.R. 925.)). However the court took care to specify that any order of the government granting or refusing sanction must be accompanied by reasons ((Id. at p. 150)).
The argument that the Act had been abused was not found favor with the court as a relevant factor in deciding the constitutional validity of the Act. The court accepted the government’s statement that members of the armed forces had been issued with detailed instructions by the army headquarters in the form of ‘dos and don’ts’ concerning the Act, and that violations of the instructions were made punishable under the Army Act. The court stressed the binding nature of the instructions and emphasized the need for the government to punish those found infringing them ((Id. at p. 150-151.)). The court also directed the government to incorporate in the instructions the various safeguards which had been laid down in relation to the use of the Act:
“In order that the people feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces, it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred by the Act should be thoroughly inquired into and, if it is found that there is substance in the allegations, the victim should be suitably compensated by the state and the requisite sanction under s.6 of the Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation ((Id. at p. 152)).
The Court limited its power of review to the determination of the relevance of the material tendered by the government in support of its decision to invoke such laws ((Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 255)). It was ruled by the court that it could not independently assess the sufficiency of the material placed by the government for invoking the provisions of the Armed Forces (Special Powers) Act ((Ibid.)).
International response
The sweeping powers granted by Armed Forces (Special Powers) Act to the armed forces were a matter of concern for many members of the Human Rights Committee. These powers, they believe, were open to abuse. According to the Members of the Committee these powers were ((U.N.Doc.CCPR/C/SR.1040, para 55 (remarks of Mr. Amos Wako).))‘too broad’ and went beyond the Committee’s General Comment on art 6 of the Covenant ((General Comment 6 on art 6 reads in part: The protection against arbitrary deprivation of life…is of paramount importance. The Committee considers that state-parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the state is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.)), as well as the Commentary to art 3 of the Code of Conduct for Law Enforcement Officials ((Adopted by the UN General Assembly on 17 December 1979 (Res.34/169). The Commentary on art 3 of the Code reads in part: (a) This provisions emphasises that he use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorised to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected ogffenders, no force going beyond that may be used… (c) …The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain and apprehend the suspected offender…)). One member highlighted the dangers of the width. The Act empowered the soldiers to shoot to kill anyone acting in contravention of a law prohibiting the assembly of five or more persons. Since the violation of the prohibition is not qualified it can even take in assemblies of person joining together for harmless purposes such as marriage or other ceremonies, which has nothing to do with the keeping of law and order. It was pointed out by way of criticism that the wording here is so broad that it could cover lawful exercise of basic liberties ((Remarks of Mr. Rajsoomer Lallah, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at9. To this, the Attorney General of India replied that the use of firearms was only authorised to break up assemblies, which had been declared illegal under an order by a magistrate, but he provided no legal authority for this.)).’
The Committee has expressed its concern about the provision, which confers immunity on members of the armed forces from prosecution. It was pointed out as one which ran counter to the terms of art 2[3] ((This article requires states-parties to ensure that an effective remedy is provided to anyone whose rights had been violated ‘notwithstanding that the violation has been committed by persons acting in an official capacity.’))of the Covenant. It was pointed out that the phrase ‘acts purported to be done under the Act’ could justify any officer who makes a plea that he was under the notion that he was performing his duty while by killing a person. It was pointed out that such a phrase is highly dangerous when one is dealing with right to life ((Remarks of Mr. Rajsoomer Lallah, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Commottee, London, March 1993, AI Index: ASA 20/05/93 at 9)).The Committee noted with disapproval the unduly long periods for which declarations of ‘disturbed areas’ have been in force. It was observed by the Committee that the terms of the Act allowed for such declarations to run indefinitely without any review of the factual situation, which gave rise to them ((U.N.Doc.CCPR/C/SR.1041,para 77 (remarks of Mr. Omran El-Shafei).)). This position runs counter to the requirement under Article 4 of the ICCPR which required all exceptional measures derogating from states-parties’ obligations under the Covenant to be of a strictly temporary nature ((The Human Rights Committee, in its General Comment No.5, has expressed the view that: measures taken under art 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that in time of emergency the protection of human rights become all the more important, particularly those rights from which no derogation can be made.)). It also expressed doubt as to whether the Armed Forces (Special Powers) Act could be justified under art 4 of the Covenant as a law that was ‘strictly required by the exigencies of the situation.’ The Government tried to justify the Act by pointing out that the provisions authorizing use of firearms were rarely used. But it was pointed out that if that is the case these provisions cannot be considered as “strictly required by the exigencies of the situation” and it could be better to get rid of them ((Remarks of Professor Higgins, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Commottee, London, March 1993, AI Index: ASA 20/05/93 at 10)).
CONCLUSION
Protection of societal interest even at the cost of denial or restriction on basic individual rights are the norm accepted both in national legal systems as well as international human rights jurisprudence. International Human rights law recognizes the need for such derogation from the obligations created under ICCPR for the protection of human rights, though under strict international supervision. This is visualized as an emergency power to be resorted to temporarily and to the extent require meeting the emergency. Such an emergency measures shall last for the shortest period required for tiding over the difficulty faced by the government. The National Security Act, 1980 that provides for preventive detention in peacetime, is in variance with the international human rights norm that insists for declared emergency and public derogation from the obligations created by ICCPR as a prerequisite for exercise of such powers. Indian Supreme Court refused to look into the ‘fairness, justness and reasonableness’ of the preventive detention law. It justified the law of preventive detention on the ground that the Constitution provided for it. The court reasoned that when the Constitution itself provides a yardstick, it would be difficult to hold that lack of legal representation as ‘unfair, unjust or unreasonable’. However the court conceded a limited right to be represented by lawyer in cases where the government avails such a right. The Human Rights Committee observed that the provisions in the National Security Act is incompatible with art 9 of the Covenant which requires that any arrested person be informed of the reasons for his arrest ‘promptly’ and be given an opportunity to take proceedings before a court so that it is be able to decide ‘without delay’ on the lawfulness of the detention. The period for which a person could be detained without the opportunity of examining the legality of such detention was pointed out by the Committee as ‘…very considerably longer than would be compatible with art 9(4) of the Covenant’. The Committee was, concerned over the inordinately long period for which a person could be kept in preventive detention under the Act. This was pointed out as against the ‘principle of proportionality’. This aspect of the law was pointed out as contrary to art 14(3) of the Covenant.
‘The question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with Article14, para 1. The Committee was not persuaded that the Advisory Boards as constituted at present met that standard. Thus the Human Rights Committee raised serious issues of concern, on the compatibility of the security legislation with India’s obligations under the Covenant.
Special legislations, which incorporate provisions in variance from the ordinary criminal procedure, were found to be in tune with the constitutional guarantee of Fundamental Rights. Thus it could be seen that the constitutional scheme of protection of fundamental rights does not prevent the legislature and the executive from adopting extraordinary measures. This position is not in tune with what the International Human Rights jurisprudence require and invited criticism that the actions of the Government of India is incompatible with the requirements under the international human rights obligations.
It infringed a large number of rights guaranteed by the ICCPR resulting in a situation of a continuing state of emergency without it being officially proclaimed as such. The Human Rights Committee has questioned the rationale of not providing for any non-derogable rights under the Constitution of India.
The Armed Forces (Special Powers) Act was held to be constitutionally valid by the Supreme Court. The sweeping powers granted by Armed Forces (Special Powers) Act were criticized by the Human Rights Committee as one open to abuse. These powers were ‘too broad’ and went beyond the Committee’s General Comment on art 6 of the Covenant, as well as the Commentary to art 3 of the Code of Conduct for Law Enforcement Officials. Thus it could be seen that Government of India is at the receiving end in the matter of protection of human rights and the legal framework existing in India does not guarantee adequate protection to basic rights. This is specifically true with regard to emergency powers. The courts also take hands off position and fail to discharge its basic obligation to safeguard the liberty.