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Journal of the National Human Rights Commission, India JOURNAL OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA Volume 8, 2009 Editorial Board Justice Shri G. P. Mathur, Acting Chairperson, NHRC Justice Shri B.C Patel, Member, NHRC Shri Satyabrata Pal, Member, NHRC Shri P.C. Sharma, Member, NHRC Prof. (Dr.) Ranbir Singh, Vice Chancellor, National Law University, Delhi Prof. L. M. Nath, Member, Core Group on Health, NHRC Shri R. N. Trivedi, Senior Advocate, Supreme Court Shri B.G. Vergese, Chair of the Executive Committee, Commonwealth Human Rights Initiative Prof. J.S. Rajput, Former Director, NCERT Shri A.K. Jain, Secretary General, NHRC Shri J.P. Meena, Joint Secretary, NHRC Editor Shri Akhil Kumar Jain Secretary General, NHRC Editorial & Technical Assistance Shri J.P. Meena, Joint Secretary, NHRC Dr. Sanjay Dubey, Director (Admn.), NHRC Shri Utpal Narayan Sarkar, AIO, NHRC National Human Rights Commission Faridkot House, Copernicus Marg New Delhi 110 001, India ISSN : 0973-7596 ©2009 National Human Rights Commission All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechani- cal, photocopying, recording, or otherwise without prior written permission of the Publisher. DISCLAIMER The views expressed in the papers incorporated in the Journal are of the authors and not necessarily of the National Human Rights Commission. The Journal of the National Human Rights Commission Published by Shri Akhil Kumar Jain, Secretary General on behalf of the National Human Rights Commission, Faridkot House, Copernicus Marg, New Delhi-110 001, India. Published on : 10 December, 2009 Price: Rs. 150 Typesetting & Printed at: Dolphin Printo-Graphics 4E/7, Pabla Building, Jhandewalan Extension, New Delhi-110055 JOURNAL OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA Volume 8, 2009 CONTENTS PREFACE v-vii Justice Shri G.P. Mathur, Acting Chairperson, NHRC From the Editor’s Desk ix-x A.K. Jain Secretary General, NHRC ARTICLES Impact of Recent International Developments on Terrorism 1-6 R.S. Kalha Critique of Recent Legislations on Terrorism in India from 7-30 Human Rights Perspective - Do We Need Special Laws? Prof. (Dr.) Ranbir Singh Role of Education in Preventing Terrorism through Creation of 31-48 Awareness and Educating People Prof. J.S. Rajput Economic Consequences of Terrorism in India’s North East 49-64 H.N. Das A Critique on the Issues and State Policy on Naxal Menace in 65-78 Contemporary India Om Prakash Root Causes of Naxalism - How a Person Becomes a Naxalite? 79-124 K.B. Saxena (iv) Terrorism and Human Rights 125-130 Shri P. C. Sharma Law, Terrorism and Human Rights 131-140 Justice Shri Amar Saran Combating Terrorism, Naxalism and Protecting Human Rights 141-152 Dr. Justice S. R. Nayak Extremism, Rule of Law and Human Rights 153-164 Prof. B. B. Pande Human Rights in the Age of Terrorism - A Balancing Act 165-174 Arvind Verma Terrorism, Insurgency and Intrnational Humanitarian Law (IHL) 175-180 with Reference to India Ngangbam Nongyai Terrorism - An Assam and J&K Experience 181-192 Lt. Gen. (Retd.) S. K. Sinha Terrorists and Human Rights 193-198 Justice Vinod Prasad CONFERENCE REPORT Conference of NHRIs of South Asian Countries on 199-200 “Human Rights Awareness and National Capacity Building” BOOK REVIEW Idea of Justice by Prof. Amartya Sen, Allen Lane, Penguin Books, 2009 201-210 Prof. (Dr.) Ranbir Singh Curfewed Night by Basharat Peer, Random House India, 2009 211-218 Prof. J.S. Rajput The Mind of the Terrorist by Jerrold M. Post, Palgrave Macmillan 219-222 Prof. B.B. Pande LIST OF CONTRIBUTORS 223-224 ACTING CHAIRPERSON NHRC PREFACE The death, destruction and misery of the Second World War gave birth to the United Nations when its Charter was signed on June 26, 1945. The idea of human rights predates the United Nations but it achieved a formal and universal recognition only after setting up of this body. The main objective of U.N. is “to save succedding generations from the scourge of war” and “to reaffirm faith in fundamental human rights”. Article 1 of the Charter states that one of the aims of the United Nations is to achieve international cooperation in “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”. Even before india had attained independence, it signed the Charter on October 30, 1945 and that shows its commitment to the cause of human rights. The articles of the Charter have the force of positive international law as a Charter is a treaty and therefore a legally binding document. All United Nations Member States must fulfill in good faith, the obligations to observe, promote and respect human rights and to cooperate with United Nations and other nations to attain this aim. On December 10, 1948 in Paris, the General Assembly, after thorough scrutiny and nearly 1400 rounds of voting on practically every word and every clause, adopted the Universal Declaration of Human Rights (UDHR). It is the primary international articulation of the fundamental and inalienable rights of all members of the human family and represents the first comprehensive agreement among nations as to the specific rights and freedoms of all human-beings. Among others, these include civil and political rights such as the right not to be subjected to torture, to equality before the law, to a fair trial, to freedom of movement, to asylum and to (vi) freedom of thought, conscience, religion, opinion and expression. It also includes economic, social and cultural rights such as the right to food, to clothing, to housing, to medical care, to social security, to work, to equal pay for equal work, to form trade unions and to education. Originally intended as a “common standard of achievement for all people and for all nations” over the years, the UDHR has become a cornerstone of customary international law and all Governments are now bound to apply its principles. The Constitution of India was in the process of making when the Universal Declaration of Human Rights was adopted by the U.N. General Assembly and many of these rights were given a concrete shape in our domestic law by incorporating them in Part III and Part IV of the Constitution dealing with Fundamental Rights and Directive Principles of the State Policy. We celebrate Human Rights day to renew our faith and commitment to the principles it set forth. On December 20, 1993, the General Assembly of United Nations voted unanimously to create the post of U.N. High Commissioner for Human Rights but our country had taken the lead in this regard by constituting the National Human Rights Commission on October 12, 1993 soon after the President of India had promulgated the Protection of Human Rights Ordinance on September 28, 1993. The current U.N. High Commissioner for Human Rights Ms. Navanetham Pillay was appointed on 1st September, 2008. She is from South Africa but of Indian descent. Her forefathers had migrated from India. It is the responsibility of the State and its agencies to protect the Human Rights of everyone. It does not mean protecting the human rights of only those who are accused of or suspected to have committed serious crimes and completely ignoring the human rights of vast majority of law abiding people of the country who suffer at their hands. Terrorism has spread its its tentacles in many parts of world but India is one of its biggest victim. Many countries including USA, UK, Australia and others enacted tough legislations with the primary object of protecting the life and property of the people soon after the attack on World Trade Centre and Pentagon on 9/11, containing provisions which according to some human rights activists violate human rights. But they have succeeded in containing terrorism and in protecting human rights of inncocent majority. The German Parliament enacted Air Transport Security Act in 2005, Section 14 (3) whereof gave power to the Minister of Defence to direct shooting of a passenger plane if it could be assumed that the aircraft would (vii) be used against the life of others and if the downing is the only means of preventing the present danger. There was lot of criticism of the legislation as shooting down a civilian plane, that too on mere suspicion, would have resulted in killing of innocent people. The Minister gave a statement that such a power would never be used but it was necessary to have such a power. Ultimately the Supreme Court of Germany struck down Section 14(3) as unconstituional. Having regard to the gravity of the situation being faced by the country, especially the problems of the law enforcing agencies in gathering intelligence, taking timely action to prevent acts of terrorism, collecting evidence and securing conviction of the perpetrators of such crimes in courts and at the same time ensuring that Human Rights are not violated, the Commission is bringing out the Jounal for the year 2009 on the subject ‘Terrorism and Human Rights’ on Human Rights Day. 10th December, 2009 (G.P. Mathur) SECRETARY GENERAL NHRC From the Editor’s Desk The National Human Rights Commission’s Journal is an endeavour to stimulate and promote discourse and research on various contemporary human rights issues. Since its inception in 2002, the journal has generated a great deal of interest amongst the scholars and practitioners of human rights. The articles from a crosssection of people including jurists, academics, public servants and others, published in previous issues of the journal, have not only enriched the literature on human rights but also helped in bringing into focus some key human rights issues. The year has been an eventful year for the Commission.
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