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.