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    Posted on 14 April 2012
    Suhas Chakma

    Definite moves towards a police state

    Suhas Chakma on the why control of Indian states on law and order has to be protected

    Illustration: Tanmaya Tyagi

    THE CENTRAL government’s attempt to empower its agencies with the power of arrest must not be countenanced, as this being done by infringing the sacrosanct principles of federalism and undermining the supremacy of the judiciary. A number of bills currently being discussed in Parliament reflect the dangerous precedents.

    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, it 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 cognisable 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-cognisable and bailable. Obviously, Finance Minister Pranab Mukherjee has been ill-advised by the Central Board of Excise and Customs which lobbied for the amendments on the ground that even those smuggling arms, ammunitions and fake currency have been getting bail. This is despite there being 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 arms, ammunition and fake currency.

    The Rajya Sabha 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. This force is to be deployed to (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 many sections of the Criminal Procedure Code. The sacrosanct principle of Indian federalism wherein law and order is a state subject will be violated.

    At present, BSF personnel are empowered to arrest, search and seizure within the prescribed border belt, which is 80km in the state of Gujarat, 50km in the state of Rajasthan and 15km in the states of West Bengal, Assam and Punjab. No such limit has been prescribed in the case of Jammu and Kashmir and five Northeastern states viz., 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 can search, seize and arrest in border areas under the Customs Act, the Passport Act, the Narcotic Drugs and Psychotropic Substances Act and the Criminal Procedure Code.

    Already, 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. In its judgement of November 27, 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.

    THE POWERS to arrest without ensuring the rights of those detained and/or arrested by the central forces constitute a clear violation of obligations under the International Covenant on Civil and Political Rights. 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.

    Suhas Chakma is director of the Asian Centre for Human Rights.
    [email protected]

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    Posted on 14 April 2012



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