EU-India at loggerheads on human rights
Suhas Chakma says India must comply with EU standards if it seeks cooperation of its Govts
INDIA AND member-states of the European Union like Denmark, Portugal and the UK are in a serious confrontation over human rights and counter-terrorism issues. The issues with individual countries are now turning into an EU-India issue.
In July 2012, India downgraded diplomatic relations with Denmark for its government’s failure to appeal the Danish High Court order that barred extradition of Kim Davy, prime accused in the Purulia arms drop cases of 1995. The court cited India’s poor prison conditions and its failure to ratify the UN Convention Against Torture (uncat). The Indian government did little to address the grounds raised by the Denmark High Court and even failed to respond to a pil filed in the Kolkata High Court as to the steps it has taken to ratify uncat. India essentially asked Denmark to certify that there is no ‘consistent pattern of gross, flagrant or mass violations of human rights’ as required under Article 3(2) of the uncat. But India’s National Human Rights Commission on custodial deaths leave little justification for this.
Then there is the messy situation with respect to extradition of Abu Salem, prime accused in 26/11 Mumbai blasts. After his arrest by Interpol in Lisbon in September 2002, Salem was extradited to India in November 2005 after India under the ‘Rule of Speciality’ assured that Salem will not be charged with offences that attract death sentence and more than 25 years imprisonment. Salem has since been facing trial in India. However, in September 2011, the Portuguese High Court cancelled Salem’s extradition on the ground that he was tortured in custody in India and charged with offences that attract the death penalty. The Indian government appealed against the High Court order but it was upheld by the Portuguese Supreme Court. In July 2012, Portugal’s Constitutional Courts dismissed India’s appeal for failing to suo moto challenge the Supreme Court order.
The cbi has indicated that Salem will not be repatriated back to Portugal. While the Portugal’s Constitutional Court’s dismissal remains technical in nature, if Salem is indeed not repatriated, the Portuguese government is most likely to be directed by the courts to pursue the matter. India should bear in mind that on 17 February 2011, the Supreme Court of India stayed trial of all fresh cases which invoked a death penalty or jail for 25 years. However, it remains also a fact that Delhi and Mumbai Police had slapped charges invoking the death penalty on Salem.
If indeed Salem’s extradition goes awry, it will have serious implications on the extradition of not Davy but Tiger Memon, prime accused in the 1993 Surat bombing, notwithstanding India’s consent to allow a British human rights expert to visit the prison in Surat to determine whether Menom should be extradited. The UK is equally bound not to extradite anybody who will face capital punishment.
The Ministry of External Affairs is fully aware of the German government’s reaction with respect to death row convict Devender Pal Singh Bhullar, whose mercy petition was rejected by the President of India in May 2011. Bhullar was taken into custody while in transit at the Frankfurt Airport en route to Toronto. He was deported to India on 19 January 1995, tried under the Terrorists and Disruptive Activities Prevention Act and convicted to death in 2000, based solely on his confessional statement made before the police. While confession made to a police officer is admissible under the tada, it is against India’s Evidence Act and Article 14(g) of the International Covenant on Civil and Political Rights. In fact, one of three judges of the Supreme Court, Justice MB Shah, dissented against awarding death penalty to Bhullar. Germany would not have deported Bhullar if it was known that he would be given the death penalty.
INDIA RIGHTLY takes offence at any insinuation against its judiciary. But it should be able to understand the legal compulsions of Denmark, Portugal and the UK. The orders of their apex courts can further be challenged before the European Court of Human Rights. India’ diplomatic brinkmanship with Denmark, Portugal and the United Kingdom is unlikely to help. It is akin to Norway asking India to annul the Supreme Court judgement over 2G spectrum scam just because Norwegian people have invested in the Telnor’s partner Uninor. No government other than the government of India knows better that a Supreme Court judgement cannot be overturned by the executive and therefore, a presidential reference on the 2G spectrum scam is being heard currently by the Supreme Court. India should comply with EU human rights standards if it seeks cooperation of the EU governments that cannot overrule their judiciary like the government of India with respect to its judiciary. If this basic fact is understood, there is unlikely to be any confrontation between the largest democracy and the largest democratic bloc in the world.
Suhas Chakma is the director of Asian Centre for Human Rights