Laws and Regulations
India is a longstanding parliamentary democracy with a bicameral parliament. A parliament sits for 5 years unless dissolved earlier for new elections, except under constitutionally defined emergency situations.
State governments are elected at regular intervals except in states under President's Rule, i.e., rule by the central Government. On the advice of the Prime Minister, the President may proclaim a state of emergency in any part of the national territory in the event of war, external aggression, or armed rebellion. Similarly, President's Rule may be declared in the event of a collapse of a state's constitutional machinery. The Supreme Court in May 1995 upheld the Government's authority to suspend fundamental rights during an emergency. Although the 25 state governments have primary responsibility for maintaining law and order, the central Government provides guidance and support through use of paramilitary forces throughout the country.
Serious abuses have included extrajudicial executions and other political killings and excessive use of force by security forces combating active insurgencies in Jammu and Kashmir and several northeastern states; torture and rape by police and other agents of government, and deaths of suspects in police custody throughout the country; poor prison conditions; arbitrary arrest and incommunicado detention in Jammu and Kashmir and the Northeast; continued detention throughout the country of thousands arrested under special security legislation; lengthy pretrial detention; and prolonged detention while under trial.
The organization and responsibilities of intelligence and security agencies do not appear to be established or regulated by legislative acts of the Parliament of India.
Under the Official Secrets Act (OSA), the Government may restrict publication of sensitive stories, but the Government sometimes interprets this broadly to suppress criticism of its policies. Human rights activists state that government pressure caused one national, English-language daily to suppress some stories and transfer a staff reporter.
Newspapers Incitements to Offenses Act
The 1971 Newspapers Incitements to Offenses Act remains in effect in Jammu and Kashmir. Under the act, a district magistrate may prohibit the press from publishing material resulting in "incitement to murder" or "any act of violence." As punishment the act stipulates that the authorities may seize newspapers and printing presses. Despite these restrictions, newspapers in Srinagar regularly publish militant press releases attacking the Government and report in detail on alleged human rights abuses. The authorities allowed foreign journalists to travel freely in Jammu and Kashmir, where they regularly spoke with militant leaders, and filed reports on government abuses.
Special Protection Group Act
The Special Protection Group Act, which received the assent of the President on the 2nd June 1988 provides for the constitution and regulation of an armed force of the Union for providing proximate security to the Prime Minister of India and the members of his immediate family and for matters connected therewith. The SPG Act had an extremely significant fallout with far reaching implications. It legally circumscribed the parameters restricting SPG protection exclusively to the Prime Minister and his immediate family members. This became a controversial issue when the question of providing protection to Rajiv Gandhi was debated after he had ceased to be the Prime Minister of India in December 1989.
Criminal Procedure Code
The Criminal Procedure Code provides for an open trial in most cases, but it allows exceptions in proceedings involving official secrets, trials in which statements prejudicial to the safety of the State might be made, or under provisions of special security legislation. Sentences must be announced in public. The police must obtain warrants for searches and seizures. In a criminal investigation, the police may conduct searches without warrants to avoid undue delay, but they must justify the searches in writing to the nearest magistrate with jurisdiction over the offense. The authorities in Jammu and Kashmir, Punjab, and Assam have special powers to search and arrest without a warrant. The authorities sometimes require permits and notification prior to holding parades or demonstrations, but local governments ordinarily respect the right to protest peacefully. At times of civil tension, the authorities may ban public assemblies or impose a curfew under the Criminal Procedure Code. There are three classes of prison facilities. Prisoners are not classified by the nature of their crimes, but by their standing in society. Class "C" prisoners are those who cannot prove they are college graduates or income taxpayers. Their cells are overcrowded, often have dirt floors, no furnishings, and poor quality food. The use of handcuffs and fetters is common. Class "B" prisoners--college graduates and taxpayers--are held under markedly better conditions. Class "A" prisoners are prominent persons, as designated by the Government, and are accorded private rooms, visits, and adequate food, which may be supplemented by their families. Class "A" prisoners are usually held in government guest houses.
The Indian Telegraph Act authorizes the surveillance of communications, including monitoring telephone conversations and intercepting personal mail, in case of public emergency or "in the interest of the public safety or tranquillity." These powers have been used by every state government. The Union Government also uses the powers of the Indian Telegraph Act to tap phones and open mail.
Armed Forces Special Powers Act of 1958
The Armed Forces Special Powers Act of 1958 remains in effect in several states, i.e., in Jammu and Kashmir, Nagaland, Manipur, Assam and parts of Tripura.
Armed Forces (Jammu and Kashmir) Special Powers Act
Under the Armed Forces (Jammu and Kashmir) Special Powers Act passed in July 1990, security forces personnel have extraordinary powers, including authority to shoot suspected lawbreakers and those disturbing the peace, and to destroy structures suspected of harboring militants or arms.
Disturbed Areas Act
The Disturbed Areas Act has been in force in a number of districts in Andhra Pradesh for more than a year. The Disturbed Areas Act remains in effect in several states, i.e., in Jammu and Kashmir, Nagaland, Manipur, Assam and parts of Tripura. It gives police extraordinary powers of arrest and detention. Human rights groups allege that security forces have been able to operate with virtual impunity in parts of Andhra Pradesh under the act.
Jammu and Kashmir Disturbed Areas Act
Under the Jammu and Kashmir Disturbed Areas Act passed in July 1990, security forces personnel have extraordinary powers, including authority to shoot suspected lawbreakers and those disturbing the peace, and to destroy structures suspected of harboring militants or arms.
Public Safety Act
The Jammu and Kashmir Public Safety Act (PSA) of 1978 covers corresponding procedures for that state. Over half of the detainees in Jammu and Kashmir are held under the PSA. The Government acknowledges that, as of August 1997, it held about 1,600 persons in connection with the insurgency in 5 detention centers in Jammu and Kashmir, compared with 2,070 persons acknowledged held in 1995. Of these 1,298 were held under the Public Safety Act
The National Security Act (NSA) of 1980 permits detention of persons considered security risks; police anywhere in the country (except Jammu and Kashmir) may detain suspects under NSA provisions. Under these provisions the authorities may detain a suspect without charge or trial as long as 1 year on loosely defined security grounds. The state government must confirm the detention order, which is reviewed by an advisory board of three high court judges within 7 weeks of arrest. NSA detainees are permitted visits by family members and lawyers and must be informed of the grounds for detention within 5 days (10 to 15 days in exceptional circumstances). At the end of 1997 approximately 500 persons continue to be detained under the NSA. The NSA does not define "security risk." Human rights groups allege that preventive detention can be ordered and extended under the act purely on the opinion of the detaining authority. Such a subjective decision cannot be overturned by any court.
Although the law that had been subject to the most extensive abuse--the Terrorist and Disruptive Practices (Prevention) Act (TADA)--lapsed in May 1995, 3,785 persons previously arrested under the act continued to be held in a number of states at year's end, and a small number of arrests under TADA continued for crimes allegedly committed before the law lapsed. Criminal cases are proceeding against most of those still held under TADA, with more than 3,000 charged under other laws in addition to TADA. In March, the Government asserted that all TADA cases would be reviewed. In February 1996, the Supreme Court eased bail guidelines for persons accused under TADA, taking into account the large backlog of cases in special TADA courts. In reply to a question in the Jammu and Kashmir state assembly in May 1997, the Government reported that 15,826 people were detained under TADA in the state between 1990 and 1995. The Government acknowledges that, as of August 1997, it held 772 persons under the TADA in Jammu and Kashmir. TADA courts use abridged procedures. For example, defense counsel is not permitted to see witnesses for the prosecution, who are kept behind screens while testifying in court. Also, confessions extracted under duress are permitted in evidence.
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