India’s Guantanamo (or Belmarsh)?

Lok Sabha has just passed the amendments to the Unlawful Activities Prevention Act. Although I have not seen the full text of the amending Bill, media reports indicate that it allows for indefinite detention of foreign suspects. If this is true, we might be in the process of creating our own version of the Guantanamo or Belmarsh prisons, and without any public debate. A similar law was declared by the House of Lords to be incompatible with the British Human Rights Act, 1998 in A v. Secretary of State for the Home Department (Belmarsh detainees case).

I hope this analysis is wrong and that the media reports (or my reading of them) have missed some crucial nuance in the Bill. Perhaps all it does is mandatorily denies bail after a chargesheet has been filed (which is not great either), but retains the 180-days-detention-limit-without-charge for foreigners. Can anyone please clarify?

Update – The new Section 43D (8) added by the amending Bill states: Notwithstanding anything contained in sub-sections (6) and (7), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except invery exceptional circumstances and for reasons to be recorded in writing.

I think a person becomes an ‘accused’ only after a chargesheet is filed, so detention without charge should still be possible for 180 days only, even for foreigners.

[Hat tip to Dilip for posting the link]

Update 2 – The analysis in the first update above may be wrong. Please see the comment section.

Written by
Tarunabh Khaitan
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  • It is ridiculous that these bills, which have the potential to severely curtain individual rights, are not available in public, and have been enacted without any public debate. And, speaking qualitatively hardly any parliamentary debate. But hey, We the people of India trust our own big brother don’t we?

  • Agree with Anonymous – the Bills were drafted overnight and passed the next day. Should these things happen in a democracy? On the other hand, we have Women’s Reservations Bill lingering for over a debate because there is not enough consensus, so the debate is on.

  • Not to mention the fact that the Bills have been made available by a non-governmental body (PRS), the government not even bothering to release the text to the public for wider discussion.

  • Tarunabh, could you point towards any case-law on your point about ‘accused’? Because the CrPC refers to a person as ‘accused’ even beforea chargesheet is filed. That is clear from provisions which talk about the procedure on completion of investigation. They aslo refer to “forwarding the accused to the magistrate” or “releasing the accused” in case where the investigation yields no evidence; the inference being that the person is an accused even in investigation stage prior to filing chargesheet.

  • Dear Anonymous
    Thanks for pointing it out. I was speaking on an assumption, rather than careful research (my bad)! If the provisions are indeed as you have quoted, this provision is more dangerous that my update suggests. But surely ‘accused’ must be a term of art? When does one stop being a suspect and become an accused? Any ideas?

    More generally on the manner of bringing legislation, does anyone have any research on legislative practices in other countries – white and green papers, several readings of a Bill etc? I remember (again, only vaguely) that the South African constitution requires Bills to be published. Can the RTI Act be used to impose an obligation on government to publish bills suo motu?

  • I doubt if RTI Act per se could be used to further the cause u seek. Since the same is for getting information by the applicant and that too on a private basis. Once received that information could be made public by the recepient.

    But yes, i will check the RTI Act to see if this could be done.

  • To my mind, a person becomes an accused if accusations are made against him in the FIR. Note that Article 20(3) says “No person accused of any offence shall be compelled to be a witness against himself.” Unless we extend the term accused to cover investigations, we will be left with a situation that there is no constitutional cover against tortured confessions. ‘Witness’ is interpreted broadly covering more than just testimony in Court, consequently, ‘accused’ must also be interpreted broadly. Any idea what Nandini Satpathy says about these issues? I think this was discussed…

  • Dear People, why do you regret that this Bill was not debated as much as you would expect? In any case, even if it were debated for a month or more, the outcome could not have been any more reasonable. By the way, the new law will be, like its predecessors, challenged in a Court of Law and lets hope that our Supreme Court will take time to review its earlier decisions and to generate a coherent law on these issues. I don’t understand if our parlimentarians will ever recognise that they, like others, make mistakes. So, given their reluctance to admit that they make mistakes, let alone that they made one in the past on TADA, POTO or POTA, there was hardly any basis to expect a meaningful debate on this issue in Parliament.

    By the way, am I the only one to say that Mr.Kapil Sibal was not at all pursuasive every time he spoke on television? He is a brilliant attorney and his facial expression and cues seemed to suggest that, notwithstanding his confident tone, he didn’t seem convined enough himself. And my belief in his brilliance is reaffirmed even more after that – he does not seem to believe much of what he says himself on this law.

    After all, a reasonable attorney will likely struggle to market a law such as this one unless he manages to suppress the subtle pursuasive expressions that he habitually employed to gain eminence in the past. By the way, I watch news on satellite digital reception on 50″ Plasma Television and always turn off the volume.