India The Advisory Council of Jurists observes and recommends that: 1. The provision of POTA extending the normal period for investigation prescribed in the ordinary criminal law, and extending the consequential period of detention of persons accused (up to 180 days) and denying the accused the right to be released on bail within one year from the date of detention unless the Special Court “is satisfied that there are grounds for believing that he is not guilty of committing the offence” – are at variance with the provisions of Article 9(2), (3) and (4) and Articles 14(2) and 3(c) of the ICCPR. They are also contrary to Principle 11 of the Body of Principles on Detention. 2. The ‘Special Courts’ established within the framework of POTA must exercise their jurisdiction with the same degree of impartiality, independence and fairness as the established Courts of the land, and in accordance with international standards as set out in Article 14 of the ICCPR: this must be ensured by the High Courts (who are empowered under the Constitution with ample writ jurisdiction over all administrative authorities and tribunals), and by the Supreme Court of India. 3. Section 54(2) permits the person arrested under POTA to meet with his legal practitioner during the course of interrogation, but does not permit the legal practitioner to remain present throughout the period of interrogation: this is not in conformity with Principle 8 of the Basic Principles on Lawyers which mandates that all arrested, detained or imprisoned persons shall be provided with adequate opportunity, time and facility to be visited by and to communicate and to consult with a lawyer without delay, interception or censorship and in full confidentiality: such consultation being within sight but not within the hearing of law enforcement officials. 4. Under Section 53 of POTA in a prosecution for punishment for “terrorist acts” (Section 3), Special Courts are permitted to draw adverse inferences against the accused in certain circumstances. Article 14(2) of the ICCPR provides, however, that everyone charged with a criminal offence “shall have a right to be presumed innocent until proved guilty according to law”: a right against which no derogation is permissible. 24