KASHMIR: LAWS VIOLATING FUNDAMENTAL LAW
By AHMED NASSIM
Kashmir has remained a moot point in Indo-Pak confrontational relationship. Kashmiris have always rejected Indian forced occupation of their land and the fact of the matter is the issue of Kashmir is one of the oldest disputes in international diplomatic arena. Despite the fact that international community has failed to perform its obligation under U.N resolutions, Kashmiris have lit the lamp of freedom with their blood. People of Indian Held Kashmir have witnessed draconian laws to subvert freedom movement. The recent developments in laws affecting the rights of the people of Kashmir have shown that Indian Government believes on iron fist to subjugate citizens of Kashmir. Even though United Nations Security Council Resolution 1456 confirms that states must ensure that measures adopted to combat terrorism comply with all their obligations under international law … in particular international human rights, refugee and humanitarian law. This fundamental principal finds no adherence in recent legal developments in Indian held Kashmir.
In 2002, Government of India introduced The Prevention of Terrorism Act, 2002 (POTA), it was repealed by the Prevention of Terrorism Act, 2004. It was again repealed and the Unlawful Activities (prevention) Amendment Act, 2004 was enacted which is now the Unlawful Activities (Prevention) Amendment Act, 2008.
PREVENTION OF TERRORISM ACT (POTA), 2002
The Prevention of Terrorism Ordinance (POTA), promulgated on 25th October, 2001 was initially rejected by the Upper House, when presented for enactment. However, it was passed at the joint session of the Indian Parliament on March 26, 2002. Though the law was for the whole country, its main focus was occupied Kashmir. POTA equipped the Indian forces with extra ordinary powers. Under the law, any act committed with a lethal weapon was termed terrorist act. The offences included even inviting support for an alleged “terrorist organization”, addressing a gathering of sympathizers (of a terrorist organization) and arranging, helping or assisting to arrange a meeting in which support for any “terrorist organization” or its activities is expressed. The properties of the alleged terrorists, terrorist organizations and their sympathies would be seized. The suspects could be detained for 3 months without framing charges against them and for another 3 months, if allowed by special Judge. It also allowed law enforcement agencies to withhold the identities of witnesses and treats a confession made to the police as an admission of guilt. Under regular Indian law, a person can deny such confessions in court, but not under POTA. The Government officials admitted that excesses had regularly been committed. A long list of illegal arrests and unlawful killings has been documented by the human rights organizations. This black law was used mainly in occupied Kashmir. Ninety Nine point nine percent arrested under this Act were Muslims. Owing to strong protests and denunciation from the world leaders and organizations, the Act was later withdrawn.
UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ORDINANCE 2004
One of the key election campaign slogans of Congress was that they shall abolish POTA, after securing victory in National elections Congress did abolish POTA only to bring more draconian law. The Ordinance UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ORDINANCE was passed by the Indian President in 2004 and was implemented forthwith. It has since been promulgated as Act. It again provides extraordinary powers to armed forces and other law enforcement agencies, similar to those previously provided by the POTA.In addition to the above-mentioned measures, the laws and ordinances regarding other disturbed parts of India can also be applied in occupied Kashmir. The Act was further amended in 2008. In December 2008 Unlawful Activities (Prevention) Bill was rushed through without adequate debate. The government ignored calls from some Members of Parliament (MPs) to refer the bill to a standing committee for review before being enacted. Disappointingly, the bill incorporated provisions borrowed from previous anti-terrorist laws, which were discredited due to their misuse by the police and their draconian anti-rights measures. Yet, despite the fact that these past anti-terror laws failed to achieve their objective, and divided Indian society by being used predominantly against minority groups, the United Progressive Alliance (UPA) government has chosen to revive them with minor alterations
Mr AHMED NASSIM is a well known Lawyer and an analyst.
It's a cross post from Media Point.