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"Many energy companies have invested in closed or repressive countries -- arguing that their investment would help develop the local economy and thereby improve the human rights situation. But in this case, Enron has invested in a democratic country -- and human rights abuses there have increased. Enron hasn't made things better for human rights; it has made things worse." |
The Applicable Laws |
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Table of Contents
Key Individuals Named in this Report I. Summary and Recommendations II. Background: New Delhi and Bombay III. Background to the Protests: Ratnagiri District IV. Legal Restrictions Used to Suppress Opposition to the Dabhol Power Project V. Ratnagiri: Violations of Human Rights 1997VI. The Applicable Laws VII. Complicity: The Dabhol Power Corporation VIII. Responsibility: Financing Institutions and the Government of the United States ![]() Appendix A: Correspondence Between Human Rights Watch and the Export-Import Bank of the United States Appendix B: Report of the Cabinet Sub-Committee to Review the Dabhol Power Project Appendix D: Correspondence Between the Government of India and the World Bank ![]() |
VI. The Applicable Laws
Leading activists and members of organizations representing villagers opposed to the project have been subjected to repeated short-term detention and abuse in custody by police. Most frequently those detained have been held under laws which provide for preventive detention. In many cases, they have been detained for periods ranging from several days or longer without being produced before a magistrate within twenty-four hours, as required under Indian law. During mass arrests at demonstrations in villages surrounding the project site, protesters have been beaten with canes (lathis), or otherwise assaulted by the police, in some cases sustaining severe injuries. Police have also tear-gassed peaceful demonstrations.
Freedom of expression is protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.238 In particular, the right to receive and impart information has been suppressed under the guise of protecting public order. Similarly, by invoking sections of the Bombay Police Act, Human Rights Watch believes that the Maharashtra government has engaged in a systematic attempt to suppress the right of peaceful assembly when the reason for assembly is opposition to the Dabhol Power Project. Freedom of assembly is protected under Article 21 of the ICCPR.239
Article 19 of the Constitution of the Republic of India protects freedom of speech, expression, peaceful assembly, association, and movement. It permits restriction of these rights in order to maintain the public order, provided that the restrictions are “reasonable.”
238 ICCPR, Article 19 states: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certainrestrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. 239 ICCPR, Article 21 states: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. 240 ICCPR, Article 9 prohibits arbitrary arrest or detention, and Article 9(5) mandates that “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation; 241 ICCPR, Article 9(2), 9(3), and 9(4). 243 United Nations Code of Conduct for Law Enforcement Officials, Article 3. 244 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Section 5(a) and 5(b). 245 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Section 13. 246 The specified rules are: (a) Whether the law imposes a restriction on the freedom in question; (b) Whether the restrictions have been imposed by law; (c) Whether the restrictions are reasonable; and (d) Whether the restriction, besides being, reasonable, is imposed for one of the specified clauses (2) to (6) of the article. Clauses (2) to (6) of Article 19 define the conditions under which laws can be imposed to restrict freedom of expression and peaceful assembly and include restrictions to protect public order or public morality, to protect the Scheduled Tribes, or to ensure operation of State-owned enterprises. 247 In order to determine the reasonableness of the law, the Supreme Court devised test criteria. The test criteria are: (a) the nature of the right infringed; (b) underlying purpose of the restriction imposed; (c) evil sought to be remedied by the law, its extent and urgency;(d) how far the restriction is or is not proportionate to the evil; and (e) prevailing conditions at the time. 248 Sunil Batra v. Delhi Administration, A.I.R., 1978 S.C. 1675; Sunil Batra v. Delhi Administration II, A.I.R. 1980 S.C. 1579, paragraphs 31 and 42; Sher Singh v. State of Punjab, A.I.R. 1983 S.C. 465, paragraph 11; Javed v. State of Maharashtra, A.I.R. 1985 S.C. 231, paragraph 4. In Sita Ram v. State of U.P., A.I.R. 1979 S.C. 745, the Supreme Court ruled that: An undertrial or convicted prisoner cannot be subjected to a physical or mental restraint (a) which is not warranted by the punishment awarded by the court, or (b) which is in excess of the requirements of prisoners discipline, or (c) which constitutes human degradation. | |
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