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A/HRC/WGAD/2017/88

Opinion no. 88/2017 concerning Thirumurugan Gandhi (India)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2017-11-24 · en UN

Opinion; Subjects: INDIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.18-01025(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eightieth session, 20–24 November 2017

Opinion No. 88/2017 concerning Thirumurugan Gandhi (India)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The mandate of the Working Group was most recently extended for a three-

year period in Council resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/36/38), on 8 September 2017, the

Working Group transmitted to the Government of India a communication concerning

Thirumurugan Gandhi. The Government has not replied to the communication. The State is

a party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

A/HRC/WGAD/2017/88

General Assembly

Distr.: General

23 January 2018

Original: English

A/HRC/WGAD/2017/88

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Submissions

Communication from the source

4.

Thirumurugan Gandhi, aged 42 at the time of his arrest, is a citizen of India resident

in Chennai, Tamil Nadu. Mr. Gandhi is a supporter of the Tamil peoples’ cause and founder

of the “May 17 Movement”, established in remembrance of Tamils who lost their lives on

that day in 2009. Furthermore, Mr. Gandhi advocates for the self-determination of Tamils,

Palestinians, Kurds, Kashmiris, Sahrawis and Sikhs. He regularly lobbies the diplomatic

community on behalf of these groups, as well as on behalf of indigenous peoples and

communities that allege to have been subjected to war crimes.

5.

Moreover, Mr. Gandhi reportedly advocates for the right to life of migrant workers,

the right of farmers to water and the rights of workers, refugees, persons with disabilities,

persons belonging to linguistic and religious minorities and transgender persons. Mr.

Gandhi has been active in protesting against the World Trade Organization’s rules

concerning public distribution systems, privatization of electricity, projects that could be

potentially detrimental to the environment, such as hydraulic fracturing, and building

nuclear reactors in densely populated areas. Mr. Gandhi is a supporter of protests against

the use of nuclear power plants and has led such protests in Kudankulam since 2012.

6.

The source states that the May 17 Movement has been holding annual silent peaceful

gatherings since 2010. A candlelight vigil reportedly took place on 21 May 2017 in

Kamaraj Salai, near the Marina Beach in Chennai, and comprised more than 500

participants. The source notes that, on earlier occasions, the police had denied permission

for such gatherings, citing orders under section 41 of the Madras City Police Act. However,

since this gathering was intended to be a silent, non-violent candlelight vigil, no police

permission was formally received.

7.

The source reports that the Tamil Nadu police arrested two groups of individuals

participating in the vigil. These arrests were carried out according to sections 147, 148, 341

and 506 (2) of the Indian Penal Code; section 7 (1) (a) of the Criminal Law Amendment

Act and section 3 of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act.

Mr. Gandhi was included in a group comprising 35 persons. The source indicates that no

arrest warrant was shown at the time, contrary to the provisions of section 41 B (b) (i) and

(ii) and (c) of the 1973 Code of Criminal Procedure.

8.

The source notes that the entire arrest was captured live on television, with the press

following the arrested individuals and interviewing them. The video evidence therefore

clearly demonstrates the fact that those participating at the vigil had no weapons and carried

only candles and banners.

9.

The source further specifies that the arrested persons were transported from the

Community Hall to the Government Royapettah Hospital and, by midnight on 21 May

2017, to the police station. At 1.30 a.m. on 22 May 2017, the arrested individuals were

moved from the police station to the Metropolitan Magistrate’s Court for their remand

hearing. Some 17 persons were reportedly detained on the night of 21 to 22 May. Eighteen

other individuals, notably 1 woman and 17 students, were released. The source maintains

that the detained individuals were beaten and suffered injuries in police custody.

10.

According to the source, all those detained, except four individuals, were

subsequently released on bail. The source states that the duration of the preventive

detention without bail for Mr. Gandhi was set at one year. He was held in custody in the

Puzhal Central Prison in Chennai.

11.

On 29 May 2017, Mr. Gandhi and three other individuals were charged by the City

Police Commissioner under the Tamil Nadu Prevention of Dangerous Activities of

Bootleggers, Cyber Law Offenders, Drug Offenders, Forest Offenders, Goondas, Immoral

Traffic Offenders, Sand Offenders, Sexual Offenders, Slum Grabbers and Video Pirates

Act, 1982 (Tamil Nadu Act No. 14 of 1982), commonly known as the Tamil Nadu Goondas

Act.

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12.

According to the source, Mr. Gandhi later appeared before the Advisory Committee,

which upheld his detention. Mr. Gandhi then challenged this decision in the Madras High

Court. Case hearings had been postponed at the time the source made the submission.

13.

The source points to a number of procedural irregularities. The source maintains that

the facts recorded by the police in their arrest report do not correspond to the above-

mentioned sequence of events. Furthermore, one of the witnesses, who supposedly signed

the arrest report, denies ever having done so. In addition, the police allegedly confiscated

some property from Mr. Gandhi on 21 May 2017. Court documents indicate that it was

received by the Metropolitan Magistrate’s Court only 10 days after the arrest, on 31 May

2017.

14.

The source further argues that Mr. Gandhi should not have been remanded in

custody in the light of the judgment of the Supreme Court of India in Criminal Appeal No.

1277 of 2014. In that judgment, the Supreme Court seeks to ensure that police officers do

not arrest persons unnecessarily and that magistrates do not authorize detention casually

and mechanically. As such, the Supreme Court stated that the police should comply with a

specified checklist and present it to the magistrate. The source notes that, in the present

case, the remand order does not confirm that the police report prescribed by the Supreme

Court was used. The source therefore maintains that the police arrested Mr. Gandhi illegally

and that the magistrate mechanically ordered remand measures.

15.

Moreover, the source indicates that five pending cases have been cited as the

grounds for the preventive detention order of the Chennai Police Commissioner, dated 29

May 2017. Those offences are merely first information reports registered by the police,

which have not been investigated for 805, 624, 387, 189 and 255 days, respectively. The

Code of Criminal Procedure states that, under section 167, investigations are to be

concluded in a period ranging from 60 to 90 days. The source therefore argues that the

detention order, which relies on five cases that were filed between 2015 and 2016, is

irregular.

16.

The source further maintains that any person who fights for the rights of the people

is a human rights defender and cannot be portrayed as a member of a gang under the Tamil

Nadu Goondas Act or as a person habitually committing offences. The source argues that, if

this practice continues to go unchallenged, human rights defenders will be placed at a great

risk of being detained arbitrarily under the above-mentioned Act.

17.

The source further states that a complaint concerning the arrest and subsequent

detention of Mr. Gandhi was presented to the National Human Rights Commission. The

Commission, however, did not consider itself able to intervene and transmitted the

complaint to the State Human Rights Commission of Tamil Nadu for appropriate action.

Response from the Government

18.

On 8 September 2017, the Working Group transmitted the allegations from the

source to the Government through its regular communication procedure. The Working

Group requested the Government to provide detailed information by 9 November 2017

about the current situation of Mr. Gandhi and any comments that it might have on the

source’s allegations.

19.

The Working Group regrets that it did not receive a response from the Government

to this communication, and the Government did not request an extension of the time limit

for its reply, as provided for in the Working Group’s methods of work.

Recent developments

20.

It has come to the Working Group’s attention that Mr. Gandhi and his associates

were released on 20 September 2017, one day after the Madras High Court, on 19

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September 2017, reportedly quashed the Chennai Police Commissioner’s preventive

detention order of 29 May 2017 under the Tamil Nadu Goondas Act.1

Discussion

21.

At the outset, the Working Group welcomes the release of Mr. Gandhi on 20

September 2017 after the ruling by the Madras High Court on 19 September 2017.

Following his release, the Working Group has the option of filing the case or rendering an

opinion as to the arbitrariness of the detention, in conformity with paragraph 17 (a) of its

methods of work. In this particular case, the Working Group has decided to render the

present opinion, and given the absence of a response from the Government, in conformity

with paragraph 15 of its methods of work. In making this decision, the Working Group

gives particular weight to the fact that, although Mr. Gandhi and his associates have all

been released, (a) the circumstances in which they were detained were serious and warrant

further attention2 as they were initially detained for taking part in an assembly and then held

in preventive detention under the Tamil Nadu Goondas Act; (b) Mr. Gandhi was deprived

of his liberty for four months; and (c) the Government has failed to inform the Working

Group about the guarantees of non-repetition let alone the Government’s version of events

or Mr. Gandhi’s release ordered by the Madras High Court.

22.

The Working Group notes that Mr. Gandhi’s arrest and detention largely concerned

the laws and officials under the jurisdiction of the federal state of Tamil Nadu in India. The

Working Group nevertheless reminds the central Government of India that the provisions of

the Covenant extend to all parts of federal states without any limitations or exceptions

under article 50 of the Covenant. In addition, the provisions of the Universal Declaration of

Human Rights extend no less universally to all subsidiary political units of decentralized

States.

23.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge

the prima facie credible allegations made by the source.

24.

The Working Group considers that it is entitled to assess the proceedings of a court

and the law itself to determine whether they meet international standards.3 However, the

Working Group reiterates that it has consistently refrained from taking the place of the

national judicial authorities or acting as a kind of supranational tribunal when it is urged to

review the application of national law by the judiciary.4

25.

The Working Group also reiterates that it applies a heightened standard of review in

cases in which the freedom of expression and opinion is restricted or where human rights

defenders are involved.5 Mr. Gandhi’s role as a social activist and human rights defender

for the self-determination of various peoples, for migrant workers and refugees, for persons

1 Mohamed Imranullah S., “HC quashes order detaining Thirumurugan Gandhi under Goondas Act”,

The Hindu, 19 September 2017. Available at www.thehindu.com/news/national/tamil-nadu/hc-

quashes-order-detaining-thirumurugan-gandhi-under-goondas-act/article19714081.ece.

2 See opinion No. 50/2017, para. 53 (c).

3 See opinion No. 33/2015, para. 80.

4 See opinions No. 63/2017, para. 45; No. 59/2016, para. 60; No. 12/2007, para. 18; No. 40/2005, para.

22; and No. 10/2002, para. 18.

5 See opinions No. 57/2017, para. 46; No. 41/2017, para. 95; No. 62/2012, para. 39; No. 54/2012, para.

29; and No. 64/2011, para. 20. Domestic authorities and international supervisory bodies should apply

the heightened standard of review of government action, especially when there are claims of a pattern

of harassment (see opinion No. 39/2012, para. 45). See also General Assembly resolution 53/144

(Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to

Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms), article 9

(3).

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with disabilities, for linguistic and religious minorities and for transgender persons requires

the Working Group to undertake this kind of strict scrutiny.6

Category I

26.

The Working Group will examine the relevant categories applicable to its

consideration of this case, including category I, when it is clearly impossible to invoke any

legal basis justifying the deprivation of liberty.

27.

While the Government has failed to offer any evidence to rebut the source’s claim,

the source has made a prima facie case that the police did not observe the relevant rules of

the international norms on detention at the time of the arrest of Mr. Gandhi, including the

right to be presented with an arrest warrant, except in flagrante delicto, which is inherent in

the right to liberty and security of a person under article 9 of the Universal Declaration of

Human Rights and article 9 (1) of the Covenant.

28.

The Working Group also notes that a number of procedural irregularities took place

while making judicial records of the event, which adds doubt to the whole process of

criminal administration concerning the present case.

29.

The Working Group also considers that the five pending cases cited as the basis for

the preventive detention order of 29 May 2017 under the Tamil Nadu Goondas Act are

obsolete and not convincing enough to warrant the validity of the order. Furthermore, there

has not been an individualized application of the law to the case. This belief is further

strengthened by the fact that the Madras High Court, on 19 September 2017, quashed the

same order.

30.

The Working Group underlines that the right to liberty and security of the person

prohibits arbitrary arrest and detention as guaranteed in articles 3 and 9 of the Universal

Declaration of Human Rights and article 9 of the Covenant. As stated in the United Nations

Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, deprivation of liberty is

regarded as unlawful when it is not on such grounds and in accordance with procedures

established by law.7

31.

The Working Group therefore considers that the arrest and detention of Mr. Gandhi

lack any legal basis in violation of articles 3 and 9 of the Universal Declaration of Human

Rights and article 9 of the Covenant. The Working Group thus concludes that his detention

is arbitrary, falling under category I.

Category II

32.

The Working Group recalls that holding and expressing opinions, including those

that are not in accordance with official government policy, are protected by article 19 of the

Universal Declaration of Human Rights and article 19 of the Covenant. In the same

manner, the Government must respect, protect and fulfil the right to assemble peacefully

and to associate with others even if the peaceful assembly and association stand for causes

not to its liking in accordance with article 20 of the Universal Declaration of Human Rights

and articles 21 and 22 of the Covenant.

33.

Mr. Gandhi, as a social activist and human rights defender, was exercising these

fundamental freedoms under international human rights law when he advocated for the self-

determination8 of Tamils, Palestinians, Kurds, Kashmiris, Sahrawis and Sikhs. He later

6 Human rights defenders, in particular, have the right to study, discuss, form and hold opinions on the

observance, both in law and in practice, of all human rights and fundamental freedoms and, through

those and other appropriate means, to draw public attention to such matters, see the Declaration on

Human Rights Defenders, article 6 (c). Human rights defenders have the right to investigate, gather

information regarding human rights violations and report on them, see opinion No. 8/2009, para. 18.

7 See A/HRC/30/37, para. 12.

8 The Working Group notes that India made a declaration upon its double accession in 1979 to the

International Covenant on Economic, Social and Cultural Rights and the International Covenant on

Civil and Political Rights that the words “the right of self-determination” appearing in common article

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founded the May 17 Movement and organized annual candlelight vigils, when he was

initially arrested without due process on 21 May 2017 and held under a preventive

detention order that was subsequently quashed by the Madras High Court on 19 September

2017.

34.

According to the source, 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.

35.

The 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. The only legitimate limitations to the exercise of such rights and freedoms must

be for the purposes of securing due recognition and respect for the rights and freedoms of

others and of meeting the just requirements of morality, public order and the general

welfare in a democratic society. However, the Government has offered no such justification

in this case. Nor did the Government deny that the candlelight vigil on 21 May 2017 was

peaceful. The Working Group therefore considers that Mr. Gandhi’s preventive detention

was neither legitimate, necessary nor proportionate under its four-prong test.9

36.

Furthermore, the Working Group notes that the Tamil Nadu police detained over

1,250 persons in 2015 under preventive detention laws, including the Tamil Nadu Goondas

Act.10 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.

37.

For these reasons, the Working Group is of the opinion that Mr. Gandhi’s

deprivation of liberty was in violation of articles 19 and 20 of the Universal Declaration of

Human Rights and articles 19, 21 and 22 of the Covenant, falling within category II.

Category III

38.

The Working Group has also considered whether the violations of the due process

and fair trial rights suffered by Mr. Gandhi were of such gravity as to give his deprivation

of liberty an arbitrary character, falling within category III.

39.

Article 9 (3) of the Covenant provides for the right to trial within a reasonable time

or to release and stipulates the general rule that pretrial detention should be the exception.

In accordance with articles 10 and 11 of the Universal Declaration of Human Rights and

article 14 of the Covenant, everyone is entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law in the determination of any criminal

charge against him or her, at which he or she has had all the guarantees necessary for the

preparation of his or her defence and during which the individual must be presumed

innocent until proven guilty.

40.

The 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. 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,

1 “apply only to the peoples under foreign domination and that these words do not apply to sovereign

independent States or to a section of a people or nation — which is the essence of national integrity”.

Some States raised objections to the declaration of India, which they regarded as a reservation to the

two Covenants. The Working Group is also of the view that the declaration of India is not only

contrary to the clear language of the provision but also incompatible with the object and purpose of

the Covenants in line with the view expressed by the Human Rights Committee. See the Human

Rights Committee, general comment No. 24 (1994) on issues relating to reservations made upon

ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to the

declarations under article 41 of the Covenant, para. 9.

9 See opinions No. 56/2017, para. 51; No. 41/2017, para. 86; and No. 54/2015, para. 89.

10 Amnesty International, “Urgent action: activists held under administrative detention”, 2 June 2017.

Available at www.amnesty.org/download/Documents/ASA2064092017ENGLISH.pdf.

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such as beatings, during police custody in violation of article 5 of the Universal Declaration

of Human Rights and articles 7 and 10 of the Covenant, as well as the Convention against

Torture, to which India is a signatory. India is thus obliged to refrain from acts that would

defeat the object and purpose of the Convention against Torture in accordance with article

18 of the Vienna Convention on the Law of Treaties. The Working Group is of the view

that the prolonged preventive detention and ill-treatment of Mr. Gandhi impermissibly

prejudiced his right to the presumption of innocence and negated his right to a fair trial.

41.

In the light of the foregoing, the Working Group concludes that the non-observance

of the international norms relating to the right to a fair trial established in the Universal

Declaration of Human Rights and the Covenant is of such gravity as to give the deprivation

of liberty of Mr. Gandhi an arbitrary character, falling under category III.

Category V

42.

The Working Group will now examine whether Mr. Gandhi’s deprivation of liberty

constitutes illegal discrimination under international law and whether it therefore falls

under category V.

43.

The Working Group has already established that Mr. Gandhi’s arrest and preventive

detention resulted from his exercise of the right to freedom of expression, assembly and

association. When it is established that deprivation of liberty resulted from the active

exercise of civil and political rights, there is a strong presumption that the deprivation of

liberty constitutes a violation of international law on the grounds of discrimination based on

political or other views.

44.

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.

45.

The Working Group cannot help but notice that Mr. Gandhi’s political views are

clearly at the centre of the present case and that the authorities have displayed an attitude

towards Mr. Gandhi that can only be characterized as discriminatory. The police denied bail

and continued to place him under prolonged preventive detention. The Working Group also

considers that Mr. Gandhi’s detention constitutes a violation of his right to equality before

the law as he has been discriminated against on the basis of his status as a human rights

defender.11 All this does not point to the equal protection of the law.

46.

For these reasons, the Working Group considers that Mr. Gandhi’s deprivation of

liberty constitutes a violation of articles 2 and 7 of the Universal Declaration of Human

Rights and articles 2 (1) and 26 of the Covenant on the grounds of discrimination based on

political or other opinion, as well as on his status as a human rights defender, aimed at and

resulting in ignoring the equality of human beings. His deprivation of liberty therefore falls

under category V.

Preventive detention under the Tamil Nadu Goondas Act

47.

The Working Group will elaborate further on the propriety of preventive detention

under the Tamil Nadu Goondas Act in view of the principle of legality and its effect on the

right to a fair trial. One of the fundamental guarantees of due process is the principle of

legality, including the principle of nullum crimen sine lege certa, which is particularly

relevant in the case of Mr. Gandhi. The principle of legality, in general, ensures that no

defendant may be punished arbitrarily or retroactively by the State.12 This means that a

11 See opinion No. 45/2016, para. 28.

12 See opinions No. 57/2017, para. 64; No. 56/2017, para. 70; No. 51/2017, para. 55; and No. 20/2017,

para. 49.

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person cannot be convicted of a crime that had never been publicly announced or made

publicly accessible; nor can they be charged under a law that is excessively unclear or

convicted under a penal law that is passed retroactively to criminalize a previous act or

omission.13

48.

The Tamil Nadu Goondas Act (Tamil Nadu Act No. 14 of 1982 as amended by Acts

Nos. 52 of 1986, 1 of 1988, 32 of 2004, 16 of 2006, 16 of 2008, 19 of 2014 and 20 of 2014)

grants the State authorities, including police commissioners, extensive power to order the

detention of goondas and other criminals to “prevent [them] from acting in any manner

prejudicial to the maintenance of public order” (section 3).

49.

Section 2 (f) of the Tamil Nadu Goondas Act defines a “goonda” as

a person, who either by himself or as a member of or leader of a gang, commits, or

attempts to commit or abets the commission of offences, punishable under section

153 [wantonly giving provocation with intent to cause riot — whether rioting does

or does not take place] or section 153A [on promoting enmity between different

groups on the grounds of religion, race, place of birth, residence, language, etc., and

engaging in acts prejudicial to the maintenance of harmony] under chapter VIII or

under chapter XVI [on offences affecting the human body] or chapter XVII or

Chapter XXII [on criminal intimidation, insult and annoyance] of the Indian Penal

Code, 1860 (Central Act XLV of 1860) or punishable under section 3 [punishment

for committing mischief in respect of property] or section 4 [mischief causing

damage to property by fire or explosive substance] or section 5 [punishment for

throwing stones, bricks, etc., at persons travelling in motor vehicles] of the Tamil

Nadu Public Property (Prevention of Damage and Loss) Act, 1992 (Tamil Nadu Act

59 of 1992).

50.

The Working Group notes that laws that are vaguely and broadly worded may have

a chilling effect on the exercise of the right to freedom of expression, as they have the

potential for abuse. They may also violate the principle of legality under article 11 (2) of

the Universal Declaration of Human Rights and article 15 of the Covenant, as it makes it

unlikely or impossible for the accused to have a fair trial. Furthermore, the Working Group

notes that the Human Rights Committee found, in its case law, that detention pursuant to

proceedings that were incompatible with article 15 were necessarily arbitrary within the

meaning of article 9 (1) of the Covenant.14

51.

The concerns expressed with regard to the vague definition of terrorist conduct (see,

e.g., CCPR/CO/81/BEL, para. 24) and other criminal offences, such as organized crime

(see, e.g., CCPR/C/79/Add.115, para. 12), are equally pertinent for the terms used in the

Tamil Nadu Goondas Act. The Working Group underlines that Mr. Gandhi’s ordeal clearly

demonstrates the potential for abuse by authorities acting ultra vires.

Country visit to India

52.

The Working Group would welcome the opportunity to conduct a country visit to

India, in accordance with the request it made on 6 April 2017, so that it can engage with the

Government constructively and offer assistance in addressing its serious concerns relating

to the arbitrary deprivation of liberty. The Working Group notes that India has issued a

standing invitation to all special procedure mandate holders since 14 September 2011 and

looks forward to an invitation to visit the country.

Disposition

53.

Although Mr. Gandhi has been released, the Working Group, in accordance with

paragraph 17 (a) of its methods of work, reserves the right to render an opinion as to

whether or not the deprivation of liberty was arbitrary, notwithstanding the release. In the

light of the foregoing, the Working Group renders the following opinion:

13 Ibid.

14 Fardon v. Australia (CCPR/C/98/D/1629/2007), para. 7.4 (2).

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The 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.

54.

The Working Group requests the Government of India to take the steps necessary to

remedy the situation of Mr. Gandhi without delay and bring it into conformity with the

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

55.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to accord Mr. Gandhi an enforceable right to

compensation and other reparations, in accordance with international law.

56.

In accordance with paragraph 33 (a) of its methods of work, 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.

57.

The Working Group encourages the Government to withdraw its declaration on

common article 1 of the International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural Rights.

Follow-up procedure

58.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(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.

59.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example, through a visit by the

Working Group.

60.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

61.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.15

[Adopted on 23 November 2017]

15 See Human Rights Council resolution 33/30, paras. 3 and 7.