A Human Rights Watch Briefing Paper for the 59th Session of the United Nations Commission on Human Rights
[ This chapter looks at human rights concerns raised by counter-terrorism measures in China, Egypt, Georgia, India, Indonesia, Russia, Spain, United Kingdom, United States, and Uzbekistan. Particularly troubling, and common, have been the pretextual use of counter-terrorism laws as new weapons against old political foes, systematic violation of terrorist suspects' due process rights, and tightening of controls on refugees and migrants. The cases detailed below include far-reaching restriction of civil liberties, crackdowns against internal political movements, misuse of immigration laws to circumvent criminal law protections otherwise available to suspects, pervasive secrecy, allegations of torture, and at times indiscriminate detention of non-nationals.]
India's response to perceived threats of terrorism intensified in the wake of an attack by militants on the national parliament in December 2001. On March 26, 2002, the long debated Prevention of Terrorism Act (POTA) was enacted. Like its predecessor, the much misused and now lapsed Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987), POTA has already been used by the Indian government to target minorities and political opponents.
POTA creates an overly broad definition of terrorism, while expanding the state's investigative and procedural powers. Suspects can be detained for up to three months without charge, and up to three months more with the permission of a special judge. Its close resemblance to TADA foreshadowed a return to widespread and systematic curtailment of civil liberties. Under TADA, tens of thousands of politically motivated detentions, acts of torture, and other human rights violations were committed against Muslims, Sikhs, Dalits (so-called untouchables), trade union activists, and political opponents in the late 1980s and early 1990s. In the face of mounting opposition to the act, India's government acknowledged these abuses and consequently let TADA lapse in 1995.
Indian and international human rights groups, journalists, opposition parties, and minority rights groups have unequivocally condemned POTA. Numerous political parties have alleged the misuse of POTA against political opponents in states such as Uttar Pradesh and Jammu and Kashmir. Since it was first introduced, the government has added some safeguards to protect due process rights but POTA's critics stress that the safeguards do not go far enough and that existing laws are sufficient to deal with the threat of terrorism. India's own National Human Rights Commission has stated that "existing laws are sufficient to deal with any eventuality, including terrorism, and there is no need for a draconian POTA." India has a plethora of security laws, some pre-dating independence. Many lack adequate procedural safeguards and have been similarly abused.
Since its passage, POTA has been used against political opponents, religious minorities, Dalits, tribals and even children. In February 2003 alone, over three hundred people were arrested under the act.
On July 11, 2002, in the state of Tamil Nadu, Vaiko, a leader of the political party Marumalarchi Dravida Munetra Kazhakam (MDMK), was arrested and charged under POTA for making remarks in support of the banned terrorist group, the Liberation Tigers of Tamil Eelam (LTTE). Only two weeks after Vaiko's arrest, P. Nedumaran, a leader of the Tamil Nationalist Movement, was also arrested under POTA for making pro-LTTE remarks at a conference on April 13.
In Kashmir, the Jammu and Kashmir Liberation Front (JKLF) chairman, Yasin Malik, was held under POTA the very day of its enactment, March 26, on charges of receiving smuggled money from a Pakistan-based separatist group. Malik was released on bail for medical reasons, but was immediately rearrested under a Jammu and Kashmir preventive detention law, the Public Safety Act (PSA), for anti-national activity. Acknowledging the extent of its misuse, the newly-elected government of the state of Jammu and Kashmir announced in October 2002 that POTA would no longer be used in the state.
An independent member of the legislative assembly in Uttar Pradesh and political opponent of the state's chief minister was charged under POTA in January 2003, along with his seventy-year-old father. Both were arrested in November 2002 under the National Security Act. Also in Uttar Pradesh, between April and July 2002, over twenty-five Dalits and tribals were charged under POTA. Tribals in the area, who work for Rs. 20 (U.S.$0.42) a day, claim that POTA has become an instrument to brand them as Naxalites (members of extreme leftist Maoist-Leninist groups) whenever they challenge the government official-landlord nexus. One villager remarked, "We are thrashed, arrested and called Naxalites. The nexus between the contractors, police, landlords and industry is just growing stronger here…. when we protest we are booked under POTA." In one case from Sonbadhra district, nine out of twelve people arrested were bonded laborers who refused to return to work because of the physical abuse of their employer.
On February 19, 2003 in Jharkhand state almost 200 people were arrested under POTA, among them a twelve-year-old boy and an eighty-one-year-old man. According to the government, the accused are being held for supporting Naxalites. According to press reports most of those arrested were farmers, students, or daily wage earners. When asked how a Naxalite was identified, a senior police official told reporters, "Anyone caught with a copy of the Communist Manifesto or Mao's Red Book becomes a suspicious character. We then watch him and often find clinching evidence." Following widespread criticism against the charges, Deputy Prime Minister Advani directed the state to review the cases. As a result, officials decided to drop the POTA charges against eighty-three of the detainees. Rights groups have charged that POTA is being used indiscriminately against ordinary citizens in the state, including young children. In January 2003, for example, a thirteen-year-old boy was arrested because his father was suspected of involvement with the insurgent Maoist Communist Centre group. The charges were later withdrawn. At this writing, a total of ten children, mostly students, had been arrested under POTA in Jharkhand state.
On February 19, 2003, the Gujarat government charged 131 Muslims under POTA for allegedly attacking Hindus. A year earlier, a Muslim mob set fire to a train carrying Hindu activists in Godhra in the western state of Gujarat. Fifty-eight people were killed. In the days that followed, Hindu nationalist groups and their supporters killed more than 2,000 Muslims throughout the state. Muslims were branded as terrorists while armed gangs set out to systematically destroy Muslim homes, businesses and places of worship. Scores of Muslim women and girls were gang-raped before being mutilated and burnt to death. Human Rights Watch investigations revealed that attacks against Muslims were carried out with extensive state participation and support and planned months in advance of the Godhra attack. The Hindu nationalist Bharatiya Janata Party that heads the state government has not charged any Hindus under POTA for violence against Muslims.