SOUTH ASIA - House Foreign Affairs Committee Democrats

2229sions would seriously affect human rights guaranteed under the Constitution andviolate basic principles of criminal jurisprudence as internationally understood.’’Similar bills are pending in the Madhya Pradesh and Andhra Pradesh state assemblies.If enacted they would provide for special courts to try offenses, place the burdenof proof at the bail stage on the accused, make confessions to a police officerof the rank of superintendent of police admissible as evidence, extend the period ofremand from 15 to 60 days, and set mandatory sentences for terrorism-related offenses.The Maharashtra state assembly enacted TADA-like legislation in November1999. On September 6, the Mumbai Sessions Court issued the first conviction underthe act, the Organized Crime (Control) Act. The court sentenced three alleged gangmembers to death on charges of conspiracy to murder former Mumbai mayor MilindVaidya. The three persons have appealed their convictions to the Mumbai HighCourt. As of year’s end, their case had not been heard.The Constitution permits preventive detention laws in the event of threats to publicorder and national security. Under Article 22 of the Constitution, an individualmay be detained—without charge or trial—for up to 3 months, and detainees aredenied their rights or compensation for unlawful arrest or detention. In addition toproviding for limits on the length of detention, the preventive detention laws providefor judicial review. Several laws of this type remain in effect.The National Security Act (NSA) of 1980 permits the detention of persons consideredto be security risks; police anywhere in the country (except Jammu and Kashmir)may detain suspects under NSA provisions. Under these provisions the authoritiesmay detain a suspect without charge or trial for as long as a year on looselydefined security grounds. The state government must confirm the detention order,which is reviewed by an advisory board of three High Court judges within 7 weeksof the arrest. NSA detainees are permitted visits by family members and lawyers,and must be informed of the grounds for their detention within 5 days (10 to 15days in exceptional circumstances). According to the Government, 1,163 personswere being held under the NSA at the end of 1997. The NSA does not define ‘‘securityrisk.’’ Human rights groups allege that preventive detention may be orderedand extended under the act purely on the opinion of the detaining authority andafter advisory board review. Any court may not overturn such a decision.The Jammu and Kashmir Public Safety Act (PSA) of 1978 covers correspondingprocedures for that state. Over half of the detainees in Jammu and Kashmir areheld under the PSA. Jammu and Kashmir police reported that 514 persons werebeing held under the PSA as of December 1998. In September and November 1999alone, the Jammu and Kashmir police arrested 25 members of the Kashmiri separatistAll Parties Hurriyat Conference (APHC). The arrests followed a series of terroristattacks in the state for which members of this group allegedly were responsible(see Sections 1.a., 1.g., and 4). On April 4, the Government released 3 of the25 persons; in May it released 11 more of the APHC detainees and attempted toinitiate a dialog with the APHC. By year’s end, all of the remaining APHC detaineeswere released; no charges were brought against any of them. In December 1999,Shabir Shah, president of the Jammu and Kashmir Democratic Freedom Party, wasreleased. At the time of Shah’s release, Amnesty International expressed concernabout the 25 arrested leaders of the APHC and explicitly suggested that the chargeswere politically motivated.The Constitution provides that detainees have the right to be informed of thegrounds for their arrest, to be represented by counsel, and, unless held under a preventivedetention law, to appear before a magistrate within 24 hours of arrest. Atthis initial appearance, the accused either must be remanded for further investigationor released. The Supreme Court has upheld these provisions. The accused mustbe informed of their right to bail at the time of arrest and may, unless held on anonbailable offense, apply for bail at any time. The police must file charges within60 to 90 days of arrest; if they fail to do so, court approval of a bail application becomesmandatory.In November 1997, the Supreme Court upheld the constitutional validity of theArmed Forces Special Powers Act (AFSPA) of 1958. In a representation made to theNHRC, the SAHRDC asserted that the act’s powers were ‘‘too vast and sweepingand pose a grave threat to the fundamental rights and liberties of the citizenry ofthe (disturbed) areas covered by the act.’’ The SAHRDC asserted that the powersgranted to authorities under Section 3 of the act to declare any area to be a ‘‘disturbedarea,’’ and thus subject to the other provisions of the act, were too broad.Moreover, the SAHRDC noted that Section 4(a) of the act empowers any commissionedofficer, warrant officer, noncommissioned officer, or any other person ofequivalent rank in the armed forces to fire upon and otherwise use force, even tothe point of death, if he believes that it is necessary for the maintenance of law andorder. Further, Section 6 of the act states that ‘‘no prosecution, suit or other legalVerDate 11-MAY-2000 13:46 Sep 20, 2001 Jkt 071555 PO 00000 Frm 00073 Fmt 6601 Sfmt 6621 F:\WORK\COUNTRYR\S71555\71555.035 HINTREL1 PsN: HINTREL1