Wednesday, October 12, 2005

Civil Liberties: A Rethink

The "Country Report on Human Rights Practices for 2004" released by the U.S. Department of State in February, 2005 makes interesting reading. While the State Department is hardly the international referee for human rights, its observations on India can not be entirely dismissed either. Here's food for thought on Vijayadasami!

The Armed Forces Special Powers Act of 1958 is in effect in Assam, Manipur, Nagaland and Tripura. This statute authorizes the Indian government to declare any area a "disturbed area", if needed. The military is permitted to fire on anyone to maintain "law and order", and to arrest anyone against whom "reasonable suspicion exists". Those detained need not be informed of the grounds for their arrest. Security forces are granted immunity from prosecution for acts committed under this legislation. The Disturbed Areas Act, similarly, gives police extraordinary powers of arrest and detention in the interests of public safety. The National Security Act permits the police to detain persons considered security risks without charge or trial for as long as one year. While the legislation lacks definition of what constitutes a "security risk", the relevant state government and a board of three high court judges are required to confirm the detention order within seven weeks of the arrest.

The Armed Forces (Jammu and Kashmir) Special Powers Act of 1990 gives military personnel the authority to shoot suspected terrorists and to destroy suspected insurgent structures in Kashmir, if warranted. Under the terms of this act, no "prosecution, suit, or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers of the act" without the prior approval of the central Government. The Jammu and Kashmir Public Safety Act of 1978 permits the detention of persons without charge and judicial review for up to 2 years. Detainees do not have automatic access to family or legal counsel during such period.

The Information Technology Act provides for censoring information on the internet and limits access to the internet under exceptional circumstances. It requires internet cafes to monitor internet use to this effect and has provision to search premises without a warrant, if needed. While the legislation is not enforced, New Delhi has still not defined the rules for the implementation of this act. The colonial Indian Telegraph Act gives police the power to tap telephones and intercept mail in instances of public emergency. Under the Official Secrets Act, the Government may restrict publication of sensitive stories in the national media on grounds of public security. The Terrorism and Disruptive Activities Act lapsed in 1995 while the Prevention of Terrorism Act was repealed in 2004.

Fortunately, most provisions have not been applied. The issue of terrorism and national security bedevils several countries, many of which have introduced drastic legislation potentially curtailing civil liberties. This includes the United States and Britain. India is not the only democracy that is faced with this dilemma. Moreover, India's human rights legislation is one of the best in Asia. This said, it might not be inappropriate to review these statutes to more effectively address concerns of public safety without unduly compromising citizen rights.

7 comments:

Primary Red said...

Of course civil liberties matter, but life matters above civil liberties.

In places where terrorists hunt down our national innocence, we must have no illusions about the needed severity of our response. And if this involves trading-off civil liberties for lives of innocents, the latter takes precedence. The last thing we want is American-style ACLU extremism in India, which cares only for "civil liberties" even if this has damaging implications for national security.

Having said this, there is indeed an Indian heavy-handedness in evidence even absent good rationale for it.

The real issue therefore is not that India is poor at balancing civil rights with security needs, rather it is not selective enough on where such trade-offs should be brought into play.

Best regards.

Laks said...

Primary Red said...

Of course civil liberties matter, but life matters above civil liberties.

This is exactly what one Interior Minister of one Western European country said. The anti-terror laws here are one of the stringent in the Western world which enables long periods of detention for terror suspects with no access to lawyers.

I too am sick and tired of the ACLU. From being a defender of liberty, it has become an apologists for extremists and anti-government anarchists. Given the naxalite and hard-left infiltration in Indian political left, this is the last things which India needs.

Rishabh Manocha said...

To Primary Red and laks:

The security of the innocent cannot be protected by eating away at their rights. The legislations mentioned above can be abused to no end - both by police and the Army - and we all know that locals are not below using such instruments at settling beefs or getting vendetta (many police officers can be exploited by local leaders or the majority). Hence, in my opinion, the only way to protect innocent people is to mantain their civil rights and then go after the bad guys, else you get what you have in kashmir and the east - gross civil rights violations ultimately leading to us alienating the people we are trying to protect (as happened with the case of the rape of a women by an army jawan - and the subsequent furore).
As for the ACLU, I fully support them because they are the ones fighting extremist legislations like the Patriot act, etc. and without the voluntary work of such people, the civil rights situation in this country could potentially have been much worse than it is now (not to say that it's too good right now).

Primary Red said...

Rishabh:

Thanks for sharing your perspective.

We take exception, however, to your calling Patriot Act "extremist" -- which it is not -- and suggesting that US civil rights situation is "not good" right now. What are you talking about?

Primary Red

Rishabh Manocha said...

Primary Red:
I think of the patriot act as an extremist peice of legislation, but you have a diferent opinion and I respect that.
As for the civil rights situation not being good in the states, I mean things like the patriot act, the guantanamo bay situation, the denial to grant homosexuals equal rights, the death penalty, censorship (like the recent censorship of GTA: San Andreas), etc.
Granted that most of the issues I hold exist in other countries too (though not the death penalty - every other civilized western contry has abolised it - except the US), it still does not mean that the situation of civil rights in the US is "good". I much prefer The Netherlands which I regard as the best example of a "free society" today - where adults are allowed to engage in whatever activity they want to - as long as that activity does not hurt others.

libertarian said...

Rishabh,
Your post was too tempting to pass up. I don't see too many people extolling the virtues of the woolly-headed Europeans (maybe I should get myself some centrist/leftist friends!). I wonder what happens to that oasis of freedom, The Netherlands, when they have a few more Bouyeri's. Wonder what version of the Patriot Act they'll put in place. Watch the U.K. and Australia as they enact their own versions.

My point (to reiterate PR's point) is all civil liberties take a back-seat to the freedom to live, which is what is under threat. I'm not being dramatic here.

There's no negotiating with some folks - unfortunately, the only way they'll respect you (and let you live) is if you kick their butts!

Best regards.

Rishabh Manocha said...

libertarian:
There are almost a million muslims living in The Netherlands and yet as per your account, there are not many extolling them. I think this goes towards proving the point that The Netherlands is a relatively free society which accepts others. Now we will always have cases like Bouyeri, but since that has happened only once in almost 3 decades , I would like to term it as an exception. (I do concede though that most european countries need to do a much better job at integrating their migrants into the society better.)
In any case, there are other good examples of free society - Switzerland, Austria, Denmark, The Scandanavian countries etc. - All of these countries have excellent human rights records and almost no terrorist attacks on them - a testament that you can be safe without sacrificing civil rights.
The right to live is paramount - no arguments there - but how you live your life is important too - I would much rather live in New York where the prospects of a terrorist killing me are relatively high but I am free to do my will, rather than live in Beijing where the basic civil rights I have come to take as granted are quashed on a daily basis.

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