UK: Howard's way blocked (feature)
01 November 1996
On 15 November, the European Court of Human Rights ruled that the British government was violating the fundamental human rights of Sikh dissident Karamjit Singh Chahal. An hour later, Chahal was free, after over six years in Bedford prison awaiting deportation to India, and Michael Howard was mulling over the profound implications of the judgment.
Karamjit Singh Chahal came to Britain illegally in 1971, and became settled in 1974, getting the benefit of Britain's only amnesty for undocumented immigrants. He married and had two children. In 1984, he visited Punjab shortly before the Golden Temple massacre by Indian troops in Amritsar. Chahal was detained and tortured by the Punjab police. On his return to Britain, he became involved with British Sikhs campaigning for an independent Khalistan. Apart from two arrests for assault and affray after disturbances in temples (one resulted in acquittal, the other in a conviction which was overturned by the Court of Appeal) he had no problems with the police. But in August 1990, Douglas Hurd, then home secretary, had him arrested and taken to Bedford prison for deportation to India on grounds of national security, as part of the "international fight against terrorism". The allegation was that Chahal was involved in supplying funds and equipment to terrorists in the Punjab, and planning and directing terrorist attacks in India, Britain and elsewhere. No evidence was ever produced. There was no appeal, only a hearing before a panel at which he was not entitled to hear the evidence against him or to be legally represented, or to know what the panel's decision was, or whether the Home Secretary followed it. Chahal applied for political asylum, saying that he faced a real risk of torture and persecution in India because of his non-violent support for Khalistan. The application was refused in March 1991.
Three more home secretaries were to uphold Hurd's decision. In July 1991 Kenneth Baker signed a deportation order against Chahal. The refusal of asylum was confirmed by Kenneth Clarke the following year, a decision defended by lawyers representing Michael Howard in the British and European courts in London and Strasbourg. But because of the national security dimension, the courts refused to engage with the merits of the asylum claim, the proposed deportation, or the detention. The Court of Appeal adopted a deferential attitude in October 1993, and the House of Lords refused leave to appeal. Even after the European Commission reported in July 1995 that in its opinion the British government was guilty of breaches of Articles 3, 5, 8 and 13 of the human rights Convention, the High Court still refused to release him, saying they did not know how strong the countervailing national security factors were.
The decision
The European Court voted by 12 to 7 that Chahal's proposed deportation to India would violate Article 3 of the human rights Convention by exposing him to torture and inhuman or degrading treatment. Since there was a real risk of torture in India, they reasoned, and since the prohibition on exposure to torture was absolute, admitting of no derogation, the issue of national security was irrelevant. It did not matter whether Chahal had been engaged in terrorism or not; he could not be sent to a country where he was at real risk of torture.
The Court also ruled, unanimously, that the British government had violated Article 5(4) by failing to provide effective judicial control of his detention. "The national authorities cannot be free from effective control by the domestic courts", the judges ruled, "whenever they choose to assert that national security or terrorism is involved".
Finally, the court unanimously upheld the complaint that the government violated Article 13 in conjunction with Article 3 by not offering an effective remedy to prevent the deportation. This would require independent scrutiny of the asylum claim, and neither the national securi