ACHR WEEKLY REVIEW

Embargoed for: 23 April 2012
Review: 238/12

India: Moving Towards the New Police State


By – Suhas Chakma, Director, Asian Centre for Human Rights

Also available in Tehelka

The Government of India’s attempt to empower its security agencies with the power of arrest must not be countenanced as the same is being done by infringing the sacrosanct principles of federalism of Indian Constitution and undermining the supremacy of the judiciary. A number of bills currently being discussed in the parliament reflect the tendency to make India the new police state.

The Finance Bill of 2012-13 not only seeks to retrospectively amend the Income Tax Act with effect from April 1962 to nullify the Supreme Court judgement in the Vodafone tax evasion case but also proposes to amend Section 104 of the Customs Act, 1962 and Section 13 of the Central Excise Act of 1944 to make all offences that attract more than three years of imprisonment cognizable and non-bailable. The Supreme Court in its judgement on 30 September 2011 in the case of Om Prakash Vs Union of India ruled that all offences under the Excise Act and the Customs Act should be made non-cognizable and bailable. Obviously, Finance Minister Pranab Mukherjee has been ill-advised by the Central Board of Excise and Customs which lobbied for the amendments to circumvent the Supreme Court judgement on the ground that even those smuggling arms, ammunitions and fake currencies have been getting bail. This is despite that there are stringent provisions under the India Penal Code, Indian Arms Act, the Unlawful Activities Prevention Act and host of other legislations to sternly deal with smuggling of arms, ammunitions, fake currency etc.

The Rajya Sabha, upper house of Indian parliament, is also currently considering the Border Security Force (BSF) Amendment Act, 2011 under which Sections 4 and 139 of the BSF Act, 1968 are being amended to extend the area of operation of the BSF to include “such parts of the territory of India as are notified by the Central government”.  The BSF, according to the Government, are deployed “(a) to counter insurgency operations and anti-naxal operations; (b) for internal security duties, (including duties during elections, communal riots, maintenance of law and order)”. Once the Amendments are passed, the BSF will have the power to arrest under Sections 41(1), 46, 47, 48, 49, 51(1), 52, 53, 74, 100, 102, 129, 149, 150, 151 and 152 of the Criminal Procedure Code. The sacrosanct principle of Indian federalism wherein law and order is a State subject will be withered.

At present, the Border Security Force personnel are empowered to arrest, search and seizure within the prescribed border belt which is 80 Kms in the State of Gujarat, 50 Kms in the State of Rajasthan and 15 Kms in the States of West Bengal, Assam and Punjab.  No such limit has been prescribed with respect to Jammu and Kashmir and five North Eastern States of Meghalaya, Nagaland, Mizoram, Tripura and Manipur.

The Indo-Tibetan Border Police deployed along Indo-China border and the Sashastra Seema Bal deployed along Indo-Nepal and Indo-Bhutan borders have already been empowered with the power to “search, seizure and arrest” in border areas under the Customs Act, the Passport  Act, the Narcotic Drugs and Psychotropic Substances Act and the Criminal Procedure Code.

The Armed Forces Special Powers Act (AFSPA), 1958, which is imposed in Jammu and Kashmir and North East India already empowers the army to “arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest”.

While the Central government has virtually empowered all its security forces to arrest, there is no protection for ensuring the rights of those detained by the army and the armed forces. The Guidelines issued by the Supreme Court in the case of D K Basu Vs State of West Bengal do not apply to the armed forces and the army. The army and armed forces are not required to maintain basic records of the persons arrested or detained. Further, there is no external oversight over these security forces.

The Supreme Court has also failed to address the need for protection of those who are arrested by the army or the para-military forces. In its judgement of 27 November, 1997 while upholding the constitutional validity of the AFSPA in the case of Naga Peoples Movement for Human Rights Vs Union of India, the Supreme Court held that “A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate”.  However, in reality, those detained by the army and the armed forces are seldom handed over to the nearest police station with the least possible delay. The detainees are mostly handed over only after interrogation. In conflict situations, once the detainees have no further intelligence value after interrogation; they are killed in fake encounters, often for the purposes of getting promotion.

The powers to arrest without ensuring the rights of those detained and/or arrested by the security forces under the control of the Government of India constitute a clear violation of India’s obligations under the International Covenant on Civil and Political Rights ratified by India. By equating customs and excise offences like duty evasion with terror offences with respect to grant of bail under the Finance Bill of 2012-13, India is setting a dangerous precedent on deprivation of personal liberty. If the Government of India continues to circumvent the Supreme Court judgement on personal liberty in such a manner and further empowers all its security forces to arrest, India will soon become the de facto police state ruled by the Centre.  [Ends]