Opinion of UN Working Group on Arbitrary Detention over the arrest and detention of Mr. Thirumurgan Gandhi in Tamil Nadu
Peoples Watch in July 2017 had send a complaint to the UN Working Group on Arbitrary Detention against the arrest of human rights defender Mr. Thirumurugan Gandhi and three others - Mr. Arunkumar, Mr. Tyson and Mr. Ilamaran associated with May 17 Movement in Chennai, Tamil Nadu and also against their detention under ‘The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers, Act, 1982’ (Tamil Nadu Goondas Act). The complaint had questioned the detention order passed by Mr. A.K. Viswanathan, the Commissioner of Police, Chennai City and that the Chennai Police Commissioner issued the preventive detention order under the Tamil Nadu Goondas Act based on unproven allegations that the police had failed to investigate for years
In this regard, Human Rights Defenders Alert – India had also sent an urgent appeal to the National Human Rights Commission on May 30, 2017. This complaint was registered as case number 1310/22/13/2017 and the NHRC passed orders to transfer the case to the Tamil Nadu State Human Rights Commission.
The UN Working Group on Arbitrary Detention at its eightieth session in November 2017 had rendered its opinion as to the arbitrariness of the detention of Mr. Gandhi and others. The UN Working Group in its report which has been made public, has mentioned that a communication had been sent to the Government of India (GoI) seeking its response and since it did not receive any response nor a request seeking time to reply from GoI, it had to proceed without its response.
The UN Working Group in its report states that it considers the arrest and detention of Mr. Gandhi violates articles 3 and 9 of the Universal Declaration of Human Rights (UDHR) and article 9 of the International Covenant on Civil and Political Rights (ICCPR) and also concludes that there is no ‘legal basis justifying the deprivation of liberty’.
The UN Working Group further stated that “The Working Group expresses its concern at the chilling effect that the widespread use of preventive detention against human rights defenders is bound to have on their exercise of the right to freedom of expression, assembly and association” and thus the detention violates articles 19 and 20 of UDHR and articles 19, 21 and 22 of ICCPR. The UN Working Group notes that the Tamil Nadu Goondas Act gave the police inspector and other State officials the power to detain any person indefinitely without trial in the name of crime prevention.
The report states that “Although Mr. Gandhi and his associates won a reprieve after the Madras High Court’s intervention, they had already been deprived of their liberty for four months due to the preventive detention order and had endured inhuman treatment, such as beatings, during police custody” and reminds the GoI of its obligations as a signatory to the UN Convention against Torture. The UN Working Group also states that Mr. Gandhi’s detention ‘prejudiced his right to the presumption of innocence and negated his right to a fair trial’.
The UN Working Group establishes in its report that Mr. Gandhi’s arrest and preventive detention resulted from his exercise of the right to freedom of expression, assembly and association and also constitutes a violation of international law on the grounds of discrimination based on political or other views and it emphasises that in paragraph 44 of its report that
“The Working Group notes that the police initially denied Mr. Gandhi’s May 17 Movement permission to gather and arrested the peaceful participants of the candlelight vigil. The incidents demonstrate the Government’s indiscriminate prejudice and bias against the whole group of demonstrators who took to the street on 17 May 2017 because of their political or other views and their desire to exercise their civil and political rights, regardless of their individual responsibility for causing violence or committing other illegal acts. Mr. Gandhi’s role as the founder and leader of the May 17 Movement also deserves consideration.”
The UN Working Group mentions that Mr. Gandhi’s political views are at the centre of the present case and that the authorities have displayed a discriminatory attitude towards Mr. Gandhi and hence equal protection of the law was not followed in this case. The report point out that the grounds of discrimination was based on political opinions, and also his status as a human rights defender.
The UN Working Group has also asked the Government of India to provide information on the following:
“(a) Whether compensation or other reparations have been made to Mr. Gandhi;
(b) Whether an investigation has been conducted into the violation of Mr.Gandhi’s rights and, if so, the outcome of the investigation;
(c) Whether any legislative amendments or changes in practice have been made to harmonize the laws and practices of India with its international obligations in line with the present opinion;
(d) Whether any other action has been taken to implement the present opinion”
The UN Working Group is convinced that Mr. Gandhi’s preventive detention is clearly connected to the exercise of his rights and freedoms as a social activist and human rights defender and hence considers that Mr. Gandhi’s preventive detention was neither legitimate, necessary nor proportionate under its four-prong test.
The report also notes that the Tamil Nadu police detained over 1,250 persons in 2015 under preventive detention laws, including the Tamil Nadu Goondas Act. The Working Group expressed its concern at the “chilling effect that the widespread use of preventive detention against human rights defenders is bound to have on their exercise of the right to freedom of expression, assembly and association”.
The final opinion of the Working Group will be submitted to the UN Human Rights Council as per its working methods.
The Working Group concludes in the report that “deprivation of liberty of Thirumurugan Gandhi, being in contravention of articles 2, 3, 5, 7, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and of articles 2, 7, 9, 10, 14, 15, 19, 21, 22 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V” as per its methods of working. The Working Group also notes that the appropriate remedy would be to accord Mr. Gandhi an enforceable right to compensation and other reparations, in accordance with international law. The Working Group refers the case to the Special Rapporteur on the situation of human rights defenders, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur on the rights to freedom of peaceful assembly and of association.
People’s Watch welcomes the opinion of the Working Group on Arbitrary Detention in Mr. Gandhi’s case and also urges the Government of India to remedy the situation in this case as iterated by the Working Group in conformity with international laws and standards including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. We also urge the Tamil Nadu Government to consider the opinions of the UN Working Group to seriously consider the opinion and refrain from such arbitrary detention of human rights defenders.
The full text of the UN Working Group on Arbitrary Detention is available at http://www.ohchr.org/Documents/Issues/Detention/Opinions/Session80/A_HRC...