Alternate Report and Commentary to the United Nations Human Rights Committee on India’s Third Periodic Report under Article 40 of the International Covenant on Civil and Political Rights
July 1997
Preface
On 10 July 1979, the Government of India ratified the International Covenant on Civil and Political Rights (ICCPR). Pursuant to Article 40 of the ICCPR, the Government of India has submitted its third periodic report (CCPR/C/76/Add.6) after a delay of four years.
This “Alternate Report and Commentary” has been prepared by South Asia Human Rights Documentation Centre (SAHRDC) as a response to the Third Periodic Report of the Government of India. SAHRDC has given para-wise responses to the Third Periodic Report of the Government of India (CCPR/C/76/Add.6). SAHRDC hopes that “Alternate Report and Commentary to the United Nations Human Rights Committee on India’s Third Periodic Report under Article 40 of the International Covenant on Civil and Political Rights” would assist the Honourable members of the Human Rights Committee to effectively examine the observance of India’s obligations under the ICCPR and to make recommendations to strengthen democratic institutions and fortify the rule of law in India.
I. INTRODUCTION
Para 1: Although the Government of India ratified the International Covenant on Civil and Political Rights (ICCPR) in 1979, India’s reservation to Article 9 remains a serious obstacle towards building a protective regime for human rights. The reservation to Article 9 has virtually blocked a statutory right to compensation. Since ratification of the ICCPR in 1979, there have been multiple court judgements awarding compensation. The National Human Rights Commission of India (NHRC) has awarded compensation in numerous cases of human rights abuses.
The Government of India is yet to ratify the First Optional Protocol of the International Covenant on Civil and Political Rights. This has made it difficult to make individual complaints to the United Nations Human Rights Committee after exhausting domestic remedies.
South Asia Human Rights Documentation Centre (SAHRDC) is aware of numerous cases where the Supreme Court of India refused to entertain habeas corpus petitions. The ratification of the First Optional Protocol would have facilitated access to redressal structures for the relatives of victims who have been denied satisfactory access to domestic legal redress.
The non-ratification of the Second Optional Protocol is another serious concern of the Indian human rights community. Not only does the death penalty continue to be practiced in India, but the number of offenses that it is now prescribed for has seen an inordinate increase.
Recommendations:
- The Government of India should withdraw the reservation expressed on Article 9 of the ICCPR.
- The Government of India should inform the Human Rights Committee about the measures being taken for the early accession to and ratification of the First and Second Optional Protocols of the ICCPR.
II. GENERAL INFORMATION
Para 3: Recognizing geographic, social, economic and cultural diversity, SAHRDC is of the considered opinion that incidents and patterns of human rights abuses, whether of individuals or groups, can be reduced through an adherence to an effective accountability process. There are adequate mechanisms in India to address human rights abuses. However, as this Alternate Report attempts to show, a large majority of the victims in actual practice do not have access to such legal mechanisms except in theory. There is a yawning gap between the legal rhetoric and grim reality.
There is no doubt that every individual has a duty, to other individuals and to the community, to observe the rights embodied in the ICCPR. However, it is the primary responsibility of the State to protect the rights of every individual within its jurisdiction and to take effective measures without violating the rights of innocent people.
This report details how the Government of India through “unlawful laws” such as the Armed Forces Special Powers Act, 1958 (AFSPA) provides impunity for certain patterns of human rights abuses including violation of a non-derogable right, the right to life. These “unlawful laws” are targeted against particular communities with distinctly different social organizations, cultural practices and religious beliefs.
III. SOCIO-ECONOMIC AND CULTURAL DIVERSITY:
Para 4: Religious intolerance in India requires little introduction. The destruction of the Babri Mosque on 6 December 1992, the denial of reservations to untouchable Hindus converting to Christianity, denial of religious freedom to the untouchable Hindus by the upper caste Hindus, and sanskritization of the Adivasis (literally meaning original inhabitants) is evidence of religious and cultural intolerance in India.
Notwithstanding India’s legacy as the land of Lord Buddha and Mahatma Gandhi, the hierarchial structure of traditional Hindu society is repressive. The principles of democracy and the Hindu caste system are not compatible. Hinduism, the dominant religion of India, is more than a religion; it assigns specific tasks to every individual on the basis of her/his birth and perpetuates upper caste Hindu oppression of the lower castes.
Para 5: The complexity and diversity of India is inadequate excuse for its lack of accountability, transparency, good governance, and promotion and protection of human rights. While there have been commendable attempts to institutionalize the democratic institutions in India, such attempts are hamstrung by the lack of implementation mechanisms. In the following paragraphs, this Alternate Report will examine the Government of India’s efforts to institutionalize the democratic institutions and the lack of adequate enforcement machinery for these mechanisms.
There is some dialogue between the non governmental organizations (NGOs) and the Government of India. However, there are also Government Organized NGOs (GONGOs). The GONGOs participate in various international fora to assist the Government of India in the pursuit of its objectives. Transparency, ultimately would be reflected by the action of the Government. In certain circumstances, the Government only consults the GONGOs and in this way disenfranchises the NGOs.
Despite repeated requests, the Government of India still refuses to extend invitations to the United Nations Special Rapporteur on Torture and the Special Rapporteur on Summary, Arbitrary and Extrajudicial Killings. International human rights organizations such as Amnesty International and Human Rights Watch/Asia are yet to be given unrestricted access to investigate human rights abuses in Jammu and Kashmir and North Eastern India. UNHCR and the International Committee of the Red Cross have no access to North Eastern India to carry out their mandate.
Transparency and Responsiveness
Voluntary action has always been vaguely suspect in the eyes of the Indian Government. Voluntary groups, motivated by concern for social justice, inevitably challenge the status quo in the course of their work. The government, and its various executive agencies, perceive voluntary agencies and other non-governmental organizations, as enemies of the state, at worst, and at best a nuisance. This regressive point of view prevents the government from seeing NGOs as partners in the development process.
It is no secret that governments tend to resent NGOs for questioning and criticizing official policies. However, if unwilling governments at the national and state level are to recognize the value of the welfare efforts of NGOs, they must accept that non-governmental agencies are here to stay and that their overall objective is to provide a system of checks and balances essential to the creation of a democratic and responsive civil society.
Non-governmental organizations are engaged in every sector, from adult literacy in rural areas, to health care, to the public scrutiny of government programs. It is this last category which attracts the ire of the government, sometimes with devastating consequences.
The most common forms of harassment indulged in by the Government of India are:
(a) Bureaucratic harassment such as the mandatory registration of organizations, frequent surveillance under the Foreign Contributions Regulation Act (FCRA) and the usual brush with the income tax authorities; denial and withdrawal of registration; undue investigations and enquiries; Central Bureau of Investigation (CBI) investigations and interrogations; withholding of funds and other resources; supersession of organizations by appointing administrators; tapping and tampering with phone lines and mail, and impoundment of passports and other travel-related problems.
(b) Political harassment by raising unsubstantiated allegations in assemblies, Parliament and in the press; arrests under normal or special laws such as Terrorist and Disruptive Activities (Prevention) Act (TADA); changes in legislation to make control and interference easier; concocted letters alleging irregularities.
(c)Intimidation of the human rights community through extrajudicial killings:
The approach of the Indian state towards the human rights groups in India is predominantly coercive. The state tends to resort to unduly harsh and repressive measures against the human rights groups. Since the mid-1980s there has been an alarming rise in physical assaults on human rights groups in India. Human rights groups in India work under tremendous pressure, primarily from the state, but also from other non-state groups with a stake in maintaining the status quo. Armed opposition groups in many parts of the country have also made human rights activists, the targets of their ire.
All civil liberties activists must work under government surveillance if not the threat of violence. Peoples Union for Democratic Rights (PUDR) and the Peoples Union for Civil Liberties (PUCL) were harassed for their report on the 1984 organized violence against Sikhs in Delhi. The Citizens For Democracy (CFD) report on Punjab was banned; the authors of the report were harassed and arrested. The Committee for Protection of Democratic Rights (CPDR) were victims of a crack down when they tried to voice the demands of persons who were displaced as a result of dam-building in Maharashtra. Activists in the Andhra Pradesh Civil Liberties Committee (APCLC) were brutally attacked for daring to expose police atrocities. These are all examples of government sanctioned lawlessness that arises from peaceful but critical attacks on governmental policy.
Many of these attacks have been provoked by public exposure and condemnation of human rights violations perpetrated by government agencies, particularly those committed by police or the paramilitary forces. The documentation of human rights violations like illegal detention, torture, extra-judicial executions, indiscriminate shooting and the promulgation of various draconian laws have threatened the foundations of the state’s legitimacy as a custodian of the law.
On 17 May 1996, journalist and human rights activist Mr Parag Kumar Das was shot by unidentified gunmen in Guwahati, in the North Eastern state of Assam. Mr Das, the editor-in-chief of the daily, “Asomiya Pratidin”, was picking his son up from school when three men drove up in an automobile and opened fire. Mr Das was shot at least eight times. His seven year-old son, Rohan Das, sustained an injury to his right hand. The gunmen fled the scene immediately after the shooting.
Mr Das was General Secretary of the Assamese human rights organization, Manab Adhikar Sangram Samiti (MASS) (Human Rights Struggle Committee) and publisher of its monthly newsletter, “Voice of MASS”, which documented human rights abuses by police and armed forces personnel in the strife-torn state. A proponent of self determination for Assam, Mr Das had published an interview in “Asomiya Pratidin” with the leader of the armed opposition group, United Liberation Front of Assam (ULFA). Mr Das’s colleagues in Assam suspect that his assassination was carried out by a group of surrendered militants from the ULFA, popularly known as SULFA (S standing for surrendered) that allegedly has ties to the State administration in Assam.
Mr Das had been arrested twice earlier. The first arrest was in March 1992 and the second in February 1993, under the National Security Act (NSA) and the Terrorist and Disruptive Activities (Prevention) Act (TADA) respectively. The laws, which allow prolonged detention without trial, were apparently invoked against Das in connection with his human rights reporting and articles about the ULFA. In December 1993, police raided Das’s office and home, seizing copies of a book he had written about Assam and manuscripts of articles he had published in “Boodhbar”, the newspaper he was then editing.
Mr Jalil Andrabi, a lawyer and Chairman of the Kashmir Commission of Jurists (KCJ), was picked up by mercenaries acting under the orders of an officer belonging to the Rashtriya (National) Rifles on 8 March 1996, shortly before he was to leave for Geneva to attend the Commission on Human Rights session. Mercenary armed groups composed of surrendered elements from the armed opposition groups had earlier twice attempted to kidnap Mr Andrabi. South Asia Human Rights Documentation Centre (SAHRDC) raised the issue of the physical safety of Mr Andrabi with the National Human Rights Commission and India’s Ministry of Home Affairs prior to his abduction and subsequent killing. However, SAHRDC was not informed of any action taken in this regard. A First Information Report (FIR) was filed immediately after his arrest. Mr Andrabi’s body was found on the bank of Jhelum river in Srinagar on 27 March 1996. He had been brutally tortured and his eyes were gouged out before he was killed.
Mr Jaswant Singh Khalra, General Secretary of the human rights wing of the Akali Dal political party, was arrested outside his home in Amritsar, Punjab on 6 September 1995. In January 1995, his office filed a petition in the High Court claiming that hundreds of individuals had been killed and secretly cremated by the Punjab Police. As of June 1996, Mr Khalra had not been produced in court despite the habeas corpus petition which had been filed in the Supreme Court. His whereabouts are unknown and SAHRDC believes that he was extrajudicially executed and that his body disposed of secretly.
Mr Sheikh Mohammad Ashraf, President of the Baramulla branch of the Jammu and Kashmir Bar Association, which regularly documented abuses by Indian armed forces personnel, was arrested by the Rashtriya (National) Rifles unit of the Indian army on the night of 15 June 1995. He was released on 9 September 1995. During the period of his detention, his family and legal counsel were denied access to him.
On 1 May 1995, Mohammad Ashraf, an advocate at the High Court in Srinagar, was arrested and charged under the Public Safety Act (PSA), a preventive detention law.
On 22 April 1995, two unidentified gunmen opened fire on Mian Abdul Qayoom, President of the Jammu and Kashmir Bar Association, seriously injuring him. Mr Qayoom had vigorously investigated human rights violations by Indian armed forces and police personnel in Kashmir.
Denial of access to the NGOs
After the assasination of former Prime Minister Mr Rajiv Gandhi in 1991, the then Chief Minister of Tamil Nadu, Ms Jayalitha Jayaram, launched a vitriolic campaign against the Sri Lankan Tamil refugees and ordered their immediate expulsion from India. The refugees began to report a drastic change in the attitude of the Tamil Nadu Government officials and a worsening of the conditions in the refugee camps. This deterioration was hastened after May 1993, when the Government banned all Non-Governmental Organizations (NGOs) from the camps.
Before they were banned from the camps by an order of the State Government of Tamil Nadu in 1993, NGOs provided the mainstay of the medical and nutritional services to refugees. The prohibition on NGO activity within the camp hinders the activities of the UNHCR, because this latter body has always discharged its mandate through partnership with other members of the international and domestic community. In most refugee aid programs, NGOs act as complementary partners to the UNHCR and the government of the state of refuge.
The Government of Tamilnadu continues to deny access to the NGOs to help the Tamil refugees. After the Dravida Munnetra Kazhagam (DMK) came to power, conditions in the camps have eased. However, the NGOs have yet been allowed to help the Sri Lankan Tamil refugees in the refugee camps. SAHRDC is informed that the ban on NGO entry in the refugee camps continues thanks to directives from the Union Home Ministry to the Tamilnadu State Government.
IV. INSTITUTIONAL FRAMEWORK
Para 6: No comments
Separation of powers and independence of judiciary
The Constitution of India provides for a judiciary independent of the executive. Efforts have been made to keep the judiciary independent, though they have not always been successful.
Of late however, there have been moves towards the greater exercise of executive contol on the manner of appointment of Judges. The Law Minister has been discussing a proposal to wrest control on the appointment and transfer of Judges from the Chief Justice of India.
The judiciary has concurred with the executive in dealing with alleged “national security” measures. The writ petitions challenging the constitutional validity of the Terrorist and Disruptive Activities (Prevention Act) and the Armed Forces Special Powers Act are two cases in point.
A reading of the judgment of the Constitutional Bench, presided over by Justice S Ratnavel Pandian, in Kartar Singh vs. State of Punjab confirms this. In 1994 SCC (Cri. 899) (two out of the five judges dissented) the judges issued a decision which attempted to prove that TADA does not violate the constitution. By upholding the constitutional validity of the Terrorist Act, the judges proceeded on the assumption that the act is more fundamental than the Constitution. They made no attempt to look into the spirit of Fundamental Rights mentioned in Part III of the Constitution. The court failed to consider the post-Menaka Gandhi decisions of the Supreme Court and reverted to the status quo jurisprudence of the 1950s which characterized the A K Gopalan case.
It is surprising that while Justice Pandian took into account the fact that terrorism all over the world was on the rise and was a potential threat to society, he conveniently overlooked the fact that TADA, then in force in 22 states, was being misused or applied in a discriminatory manner. It is interesting to note that the majority judgement devoted as many as ten pages to “noticing” how terrorism in the country and on a global level had increased. He quoted the Indian Home Minister’s speeches during Parliamentary debates as a source of evidence that terrorism was on the rise. He built a formidable case for anti-terrorist legislation in all of the 22 states where TADA was applicable. The bench felt that it was more important to keep the Terrorist Act on the statute book in defence of India than to defend the Constitution of India.
Over a decade ago, writ petitions were filed challenging the constitutional validity of the Armed Forces Special Powers Act, 1958 (as amended in 1972). The Armed Forces Special Powers Act empowers even a non-commissioned officer to shoot at any suspect who may create a disturbance or pose a threat to the security of the State. No prosecution of the concerned officials could take place without prior permission from the Union Government. The Act gives out a license to kill and is applicable in Jammu and Kashmir, Punjab, the North Eastern Indian States of Assam, Meghalaya, Manipur, Mizoram, Nagaland, Arunachal Pradesh and Tripura. By failing to consider the constitutional validity of the Act even once in the last one decade, the judiciary has not risen to its obligations under the Indian Constitution and international law.
Justice delayed is justice denied. There is little need to reiterate the problem of judicial delay in India.
Recommendations:
The Government of India should appoint more judges to the Supreme Court, the High Court and the lower courts.
The courts should hold day to day hearings in all cases once trials begin. The present procedure of lenghty adjournments between hearings only serves to aggravate the backlog of cases.
Legal status of the Covenant and its embodiment in law
The Government, while ratifying the International Covenant on Civil and Political Rights, expressed reservations to Article 9. The Government of India stated “With reference to Article 9 of the International Covenant on Civil and Political Rights, the Government of the Republic of India takes the position that the provisions of the Article shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India. Furthermore, under the Indian Legal System, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State”.
As the Government of India in its report states “In India, treaties and covenants are not self-executing but require enabling legislation, or constitutional and legal amendments in cases where existing provisions of law and the constitution are not in consonance with the obligations arising from the Treaty or Covenant.” South Asia Human Rights Documentation Centre could not agree more. If that is the spirit of the Government of India, the Human Rights Committee should be informed as to when the right to compensation is to be made a statutory legal procedure.
Recommendations:
The Government of India should make the necessary amendments in the Constitution to guarantee the right to compensation.
The Government of India should withdraw reservations expressed to the International Covenant on Civil and Political Rights on the Right to Compensation (Article 9).
Legal and administrative remedies
Para 9: In its third periodic report under the International Covenant on Civil and Political Rights, India characterizes itself as a country in which “universally recognized human rights and fundamental freedoms are guaranteed to all.” This characterization is undoubtedly accurate. Under both the Indian Constitution and the ICCPR, India guarantees that human rights will be protected and that infringements of these rights will be remedied. But how real is this protection, and how effective are these remedies? The Indian court system is beset by millions of pending cases, ridiculous delays, and ineffective remedies. While India theoretically guarantees human rights to all, actually enforcing these rights in a court of law is difficult.
Under Article 14(3) of the ICCPR, “in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) . . .
(b) . . .
(c) To be tried without undue delay.”
The Indian court system as a whole currently has more than 20 million pending cases. The Supreme Court alone has a backlog of more than 200,000 cases, and High Courts as a whole have a total of 3,077,162 unheard cases. Of these cases, 1,068,246 have been pending for more than five years and 376,922 have lasted more than ten years. It is not difficult to argue that this constitutes “undue delay” under the ICCPR in relation to criminal cases; but perhaps even more disturbing is the fact that this situation makes it extremely difficult to enforce any human rights guarantees in India. For example, in 1982 a petition was filed with the Supreme Court on behalf of two tribal women of Bihar who wished to challenge iniquitous succession laws which prevented tribal women from inheriting land. Since then, both women have died a natural death, and their case lingers on “as a cruel reminder of their sacrifice in search of social justice.”
In its report to the ICCPR, the Government of India stated that “in the event of infringement of an individual’s fundamental rights, the highest court in the land, the Supreme Court, can be pressed into action to provide immediate relief.” In 1991, despite a backlog of more than 150,000 cases, the Supreme Court worked only 185 days. High Courts adhered to an only slightly more strenuous schedule, averaging about 200 work days. It would not appear that the Court has been “pressed into service” very often. Additionally, as thousands languish in jails and human rights abuses go unremedied, talk about “immediate relief” seems somewhat less than reassuring.
Perhaps equally disturbing is the ineffective nature of the remedies which are provided in the event that a case is actually heard. Under Article 2(3) of the ICCPR “each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy. . . .
(b) . . . .
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Despite the fact that State Governments must obey orders of the Supreme Court under Article 141 of the Indian Constitution, States regularly disregard the apex court. In a 1991 adoption case, L K Pandey v. Union of India, the Chief Justice noted that a 1984 judgement of the Court remained unimplemented. It eventually took 41 adjournments to force the States into compliance. Similarly, in the Chakma citizenship case NHRC v. State of Arunachal Pradesh, the State of Arunachal Pradesh has ignored the Court’s order to forward Chakma citizenship applications to the Central Government for processing. Despite the very simple nature of this order, the Chakmas of Arunachal Pradesh have been unable to apply for citizenship for more than a year because of the defiance of the State Government. As Supreme Court judgements are not enforced, the Chakmas of Arunachal Pradesh and many other people across India are vulnerable to human rights abuses.
Perhaps the most glaring and most ironic example of an unenforced Supreme Court judgement was put forth by the Government in an attempt to demonstrate its compliance with the ICCPR. The case of A R Antulay v. R S Nayak guarantees the right to a speedy trial in all stages of judicial proceedings including investigation, inquiry, trial, appeal, revision, and retrial. The statistics provided at the beginning of this section demonstrate just how empty this guarantee is. With such ridiculous delays in the court system and such ineffective enforcement of remedies, human rights protections in India are sketchy at best.
In Jammu and Kashmir, while there are legal remedies against arbitrary or unlawful administrative action, the State Government and the Army authorities have failed to respond to a number of orders of the Jammu & Kashmir High Court on habeas corpus petitions filed in cases of illegal arrests and disappearances.
Recommendations:
The Human Rights Committee should seek full information from the Government of India about the cases in which the State of Jammu and Kashmir and the Indian Army failed to respond to orders on habeas corpus petitions pending in the Jammu & Kashmir High Court.
The Human Rights Committee could consider recommending that all Courts in India consider the institution of a day to day hearing in all cases where a trial has begun, until a final determination is made.
Other safeguards: quasi-institutional safeguards
Para 10: SAHRDC has time and again asserted that it is not the lack of institutional mechanisms which is the issue. The significant problem is the lack of teeth in such mechanisms, lack of access to the administrative and quasi-judicial mechanisms, and complete disregard for such mechanisms by officials.
The Minorities Commission, Commission for Scheduled Castes or Scheduled Tribes, and the National Commission on Women have brought out reports with recommendations. However, the recommendations of such bodies have not been implemented by the Government.
For example, the Government of India adopted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in 1989. The Act bequeaths specific responsibility on the police to promptly register cases under the Act, to investigate them speedily, and to have them submitted to courts for disposal. A public servant who does not belong to the Scheduled Castes or Scheduled Tribes and who wilfully neglects duties under the Act can be imprisoned for six months. The Act provides for appointment of special public prosecutors, setting up of special courts, and deterrent punishment for various crimes against the Scheduled Castes and Scheduled Tribes. The Act also provides for forfeiture of property, externment, and collective fines. Persons arrested under the Act do not have the right to seek anticipatory bail. Writing in The Times of India on 14 February 1997, Mr Madhav Godbole, former Home Secretary to the Government of India said,
“An unusual feature of the Act is the responsibility cast on the Union Government of India to place an annual report before Parliament on the progress of implementation of the Act. Even though the Act has come into force on 30 January 1990, only one Annual Report that too for the year 1990 has been placed before the Parliament in 1993. Thus the very purpose of seeking an Annual Report of the implementation of the Act has been frustrated.”
It is a clear example of the chasm between the rhetoric of the Government of India and reality in implementation of various mechanisms. With the exception, in some areas through the activities of the National Human Rights Commission, the other statutory bodies are toothless wonders.
Para 11: India has ratified a number of international human rights instruments. However, what amazes South Asia Human Rights Documentation Centre is the fact that the Government of India refuses to enact enabling domestic legislation providing for the applicability of such international instruments after ratification.
In its periodic report to the UN Committee on the Convention on the Elimination of Racial Discrimination (CERD), the Government of India stated that Article 1 of CERD is irrelevant as “categorical distinctions of race or national ethnic origin have ceased to exist” in India.
The CERD Committee in its forty-ninth session in August 1996 stated that:
“The meaning of race used in the Convention clearly differed from India’s concept of the term.”…. “When the Convention had been drafted, the delegation of India at that time had made a valuable contribution to the same article 1… …. and there seemed to be some discrepancy between that historical contribution and the attitude in the report.”- added Professor Theo van Boven, a CERD Committee member and former Director of the UN Centre for Human Rights.
The CERD Committee expressed its unhappiness at the stance adopted by the Government of India on this issue.
Ratification of international human rights instruments is a statement of intent to promote and protect human rights. In this context, it is a step in the right direction. However, ratification is meaningless if India refuses to accept the applicablity of such international instruments. Ratification is also impotent if there are no amendments to the Constitution and to domestic law to bring them into conformity with international human rights instruments.
Holistic Approach
Human rights are indivisble, interdependent and interrelated. This was asserted in the Vienna Declaration. However, the Government of India considers “a holistic approach which seeks to tackle poverty and underdevelopment, generate awareness and take affirmative action for the socially and economically vulnerable sections of society”. In the Government of India’s scheme of things, “civil and political rights” of the economically vulnerable sections of the society are not included. It is the economically vulnerable people who are susceptible to violation of their civil and political rights at the hands of the law enforcement officials. It is precisely the poor people who do not have easy access to the courts and other quasi-judicial mechanisms.
Poverty and underdevelopment (Para 12)
The United Nations Development Programme’s Human Development Reports have made it clear that poverty and underdevelopment are not impediments to effective exercise and enjoyment of all human rights.
The case of the Indian State of Kerala is a case in point. With limited resources, the State has achieved the country’s highest literacy rate, on par with South Korea. Women have access to land and education. The ultimate question is whether the Government is willing to address the issue of equitable income distribution. The study undertaken by Mr Jose Bengoa, the United Nations Sub-Commission Expert on Human Rights, illustrates dimensions of income distribution which could be useful in this context. The conclusion of Bengoa’s preliminary reports states that ” the concentration of wealth constitutes a serious obstacle to the realisation of human rights, be they economic, social, cultural, political, or civil, and that equality of opportunity is an essential element for participating effectively in the development process and for obtaining a just share of the benefits deriving from it.”
Empirical studies by Indian economists such as Bina Agarwal have shown that poverty and under-development do not have to be impediments to the enjoyment of human rights.
Awareness generation (Para 14)
South Asia Human Rights Documentation Centre is cognizant of the episodic training workshops organized by the National Human Rights Commission and the International Committee of the Red Cross. These sessions have benefitted a few law enforcement officials. In order to institutionalize such training on human rights, the Government of India should incorporate human rights courses in the training courses for the police and other law enforcement agencies.
“Information about human rights forms a very small portion of the syllabus at the Police Training School and is not conveyed with any seriousness. Moreover, no effort has been made to include human rights in the syllabus for the police training personnel. The bulk of the syllabus, for sub-inspectors and even constables, includes courses on human behavior, scientific aids to investigation, criminology and the laws relating to police work”.
The behavior of the Provincial Armed Constabulary (PAC) of Uttar Pradesh’s is a case in point. On October 1994, the PAC personnel were responsible for mass rape and indiscriminate shooting into a crowd of demonstrators. Ten people died at Rampur Ka Tiraha near Muzaffarnagar town in the state of Uttar Pradesh. In another incident, 13 PAC personnel, including a platoon commander, were charged with killing 17 Muslims during the 1988 riots in Meerut, UP. According to the Criminal Investigation Department (CID) inquiry, which took four years to complete, the PAC personnel, led by their platoon commander, identified 17 Muslims, took them to an isolated place, and shot them. Their bodies were transported to the Hindon river in a police truck, where they were disposed of. Two persons, presumed dead by the PAC, were found alive when the river was searched for bodies. Their testimonies led to the indictment of the constabulary personnel.
The role of the PAC has also brought into question its recruitment policy. The Union Home Ministry has been given several memoranda, mainly by Muslim organizations, against the deployment of PAC in riot-prone areas. There is a mandatory annual recruitment quota of 20 per cent for Muslims in the PAC force. Evidence shows that new recruits to the PAC are almost exclusively Hindu.
Justice Sen, whose Commission was sent by the Government of Manipur to investigate the massacre of 9 Manipuris at the Regional Medical College campus in Imphal, Manipur on 7 January 1995 by the Central Reserve Police Force (CRPF) personnel, states the following in one of his recommendations:
“4. As regards corrective measures and remedies to prevent the recurrence of such incidents, the Commission would like to suggest:
(a) that the CRPF personnel should be instructed in adequate fire control. They must be told that Law does not permit any firing unless there is immediate and otherwise unavoidable danger either to person or to property, destruction of which will prejudice the security of the state or minimum force should be inculcated in their mind. Further, they must be warned that any deterrent, retaliatory or retributive firing or use of force is not authorized by law and may well amount to an offence of murder or culpable homicide.
(b) that CRPF personnel when on static duty, particularly in inhabited areas, should be placed under the command and control of a civil police officer and also be attached to the nearest police station. Any deployment of CRPF personnel in “penny packets”, without effective control and supervision by civil police authority of the locality concerned, may lend itself to abuse and resort to excuses. It must be borne in mind that CRPF personnel are not trained in normal police duties and may be apt to overstep the limits of legitimate action, when deployed without adequate control and supervision.”
Justice Sen’s remarks about the armed and police forces in operation speaks for itself about the level of poor training.
Impunity
The United Nations Working Group on Enforced or Involuntary Disappearances stated that perhaps the single most important factor contributing to the phenomenon of disappearances is that of impunity. Perpetrators of human rights violations, whether civilian or military become all the more irresponsible if they are not held to account before a court of law. The Working Group further urged that impunity could also induce victims of those practices to resort to a form of self help and take the law into their own hands, which in turn exacerbates the spiral of violence.
In a social or political climate where there is all pervading fear, the very provision of seeking approval from the Government is tantamount to sanctioning impunity. It is hard to perceive that a system of justice and rule of law, as the Government of India exhibits, that cares for the rights of victims can remain at the same time indifferent and inert towards gross misconduct of perpetrators.
The Government of India provides impunity to its agencies under various legislation. The Government of India sanctioned impunity to the armed forces through a amendment of Section 197 of the Criminal Procedure Code (CrPC) in 1991. The Government of India introduced a host of sections prohibiting prosecution of public officials except with the previous sanction of the Central Government when the State is under President’s rule. Section 197(2) of the CrPC states “No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.”
The State Government by notification can also apply the same provision for its forces.
The members of the Armed Forces in the whole of the Indian territory are protected from arrest for anything done within the line of official duty by Section 45 of the CrPC. Section 6 of the AFSPA provides them with immunity for all atrocities committed under the AFSPA. A person wishing to file suit against a member of the armed forces for abuses under the AFSPA must first seek the permission of the Central Government.
The experience of getting permission from the Government of India to file a case by a private complainant in the North East is akin to waiting for Godot. Given that the armed forces personnel conduct themselves as being above the law, it is hardly surprising victims normally do not approach the Government of India for such permission. Moreover, when the armed forces are tried in army courts, the public is not informed of the proceedings and the court martial judgments are not publicised.
In a meeting with the National Human Rights Commission (NHRC) of India, a SAHRDC representative was able to discuss cases where BSF and armed forces in Jammu and Kashmir were punished for abuses. SAHRDC stressed that the results of these in camera trials needed to be publicised widely. SAHRDC emphazised that the names, ranks, crime committed, quantum of punishment meted out needed to be publicised. Justice needed not only to be done, but seen to be done. The NHRC representative stated that it would endanger the morale of the armed forces. SAHRDC however, avers that any professional army like the Indian Army, would do credit to itself by isolating the bad eggs within the basket. It would also have more than a salutary effect on discipline and command structures that have been wearing thin in situations of deployment in internal armed conflict situations.
By failing to ensure that the perpetrators of extrajudicial killings and other human rights abuses are brought to justice, the Government of India effectively condones the practice that led to its perpetuation, and the perpetrators to believe that they are beyond the reach of the law.
Instances of human rights abuses by the army have shown that unless there is public accountability there is no incentive for the army to change its conduct. Without the transparency of public accounting, it is impossible to be sure that perpetrators are actually punished.
Recommendations:
Human Rights Education and the need for humane behaviour should be incorporated as a primary component of the training of armed forces and police personnel. All Police and Armed Forces training manuals should be revised within a specific time frame to reflect human rights concerns.
The Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials should be incorporated in all Police and Armed Forces training manuals.
Para 15: Despite the Constitution’s direction that the State should provide compulsory and free education within 10 years of independence, the situation remains a matter of serious concern after 50 years of independence. Millions of child labourers, street children and children caught in internal armed conflict situations continue to be denied primary education. The education budget (with 1951 prices as the base year) has fallen dramatically, whereas the defence budget under various heads such as Science and Technology has increased exponentially.
Affirmative action for socially and economically disadvantaged sectors
Paras 16 and 17: No comments.
Creation of an environment conducive to enjoyment and exercise of human rights (Paras 18 & 19)
Terrorism, human rights abuses or violations of international humanitarian laws by groups or individuals in any part of the world should be condemned, and the State must take action to prosecute the perpetrators under the law of the land.
However, terrorism by armed opposition groups does not give the State the right to resort to State Terrorism. It is the responsibility of the State to abide by the rule of law, and under no circumstances should the State’s law enforcement agencies demean the majesty of the State by stooping to the level of the alleged terrorists.
Speaking in a seminar on human rights abuses by the army in insurgency areas, Mr Veerendra Dayal, member of the Indian National Human Rights Commission, said “just as national borders were sacrosanct, so also were the dignity and self-respect of every individual.” “If the insurgents have a thousand reasons to misbehave, the security forces do not have a single reason,” added the former Chief Justice of the Supreme Court of India, Justice M N Venkatachaliah, presently Chairman of the National Human Rights Commission.
SAHRDC is reluctantly compelled to state that the law enforcement personnel of India have a license to kill suspects and innocent people. In the period between 1984 and 1994, the Punjab Police were able to physically eliminate any person against whom they held a grudge. Thousands of people including human rights activists and journalists like Malvinder Singh Malli disappeared and were allegedly cremated secretly by the Punjab Police. Mr Jaswant Singh Khalra, a human rights activist who was investigating such disappearances and illegal cremations, was abducted and has since joined the disappeared. The Central Bureau of Investigation (CBI) has identified two senior Punjab Police officials responsible for the disappearance and alleged extrajudicial killing of Mr Khalra.
The reports submitted by India’s prime investigative agency, the Central Bureau of Investigation (CBI), to the Supreme Court of India on 9 December 1996 support these contentions, although the reports themselves curiously have been kept secret. The Supreme Court allowed them to be kept secret at the request of the CBI. The CBI stated before the Supreme Court on 12 December 1996 that gross human rights violations took place in Punjab. The Supreme Court’s order of 22 July 1996 in the case of Paramjit Kaur v. State of Punjab stated that “On the basis of the material collected in the inquiry by the CBI, it has prime facie been found that a total of 984 dead bodies were cremated as ‘lavaris’ (unclaimed bodies) by the police in the police district of Tarn Taran.” The Committee for Information and Initiative on Punjab stated in a writ petition that thousands of people had disappeared; the Punjab Police had extrajudicially executed and cremated their bodies as unclaimed. The cremation of unclaimed bodies excludes a large number of people who were extrajudicially executed and thrown into the canals as widely reported in the press. It was a clear case of State Terrorism, of the State not abiding by the law of the land. Besides such disappearances, members of the Punjab Police not only killed the alleged militants in Punjab but also hunted the suspected militants in the states of Maharashtra, Madhya Pradesh and West Bengal in violation of Indian law, which prohibits the police force of one state from operating in another state without the permission of the state.
The pattern of disappearances and killing continues in Jammu and Kashmir where India’s secret army, the mercenary groups composed of surrendered members of the armed opposition groups, are presently active. These mercenaries, called “renegades” by the general populace are titled “friendlies” by Indian armed forces personnel. These mercenary groups were earlier members of armed opposition groups that surrendered and now are willing to work against their erstwhile comrades for the government. Mercenaries acting under orders from a Indian Army major on secondment to the Rashtriya (National) Rifles killed human rights activists like Jalil Andrabi for discussing human rights abuses in Jammu and Kashmir.
The repression and harassment of the Muslim minority in Bombay in the aftermath of the March 1993 bomb blast needs little introduction. Human Rights Watch, Amnesty International and many other local human rights groups have documented the cases which testify that the Bombay Police targeted the Muslim minority specifically.
Violence by the armed opposition groups
It has been repeatedly argued by government sources that human rights NGOs, who are quick off the mark in condemning the smallest indiscretion of the official agencies and armed forces personnel during their effort to maintain law and order and ensure the security of life, liberty and property of ordinary citizens, remain ‘thunderously silent’ in the face of an increasing recourse to violence, often mindless and barbarious, by political armed opposition groups.
In more ways than one this ‘specious and flawed argument must be condemned as the diversionary tactic that it is’; a pathetic covering up for the increasing violation of fundamental human rights by the State. In fact, it needs to be noted that as the State loses legitimacy because of its widespread and endemic failure on both the political governance and developmental fronts, it increasingly takes recourse to law and order in dealing with any protest. The overwhelming reliance on law and order; the constant accrual and strengthening of coercive power; the promulgation of draconian laws like Armed Forces Special Powers Act (AFSPA), National Security Act (NSA) and Disturbed Areas Act; the increasing use of para-military and military forces to quell internal disturbances – not only makes these mechanisms out of the ambit of any democratic accountability. Worse, it contributes to a criminalisation of the official agencies and processes.
The Government while rightly condemning the violence by the armed opposition groups has turned a blind eye to the perfidious activities of upper-caste and communal(sectarian) organizations like the Bajrang Dal, Shiv Sena, Durga Vahini, even the Vishwa Hindu Parishad , to name just a few, what to speak of the private ‘Senas’ (armies) of feudal landlords in Bihar and Andhra Pradesh. Similarly, little notice is taken of not just the implicit/explicit support extended by the State to these formations, but its direct role in funding and arming, even setting up its own mercenary auxiliary militant groups. It is therefore likely that a significant proportion of the activities attributed to different political opposition groups is actually the handiwork of official agencies.
The South Asia Human Rights Documentation Centre (SAHRDC) emphatically states that violence by any person or non state group is equally condemnable. However, the State as the guardian of the law can not stoop down to the same level.
SAHRDC is cognizant of the serious problems posed by the armed opposition groups whether it is in Jammu and Kashmir or the North East India and unequivocally condemns such violence. It hopes that the state will deal with such acts of private violence with the full weight of the law, within the ambit of established law. SAHRDC has credible and consistent reports of killings, kidnapping, and other abuses by the armed opposition groups in clear violation of the Common Article 3 of the Geneva Conventions.
The Government of India needs to ratify Optional Protocol II of the Geneva Conventions. More than 1000 people have been killed so far in the violence between the ethnic Nagas and Kukis. There has been direct involvement of the armed opposition groups belonging to the Nagas and Kukis in these killings.
Recommendations:
the Government of India should be encouraged to ratify the Second Optional Protocol to the Geneva Conventions. It should also be requested to give unrestricted access to the International Committee of the Red Cross (ICRC) to all parts of India, in particular, the seven states of India’s North East.
Institutional developments since submission of India’s second report:
1. National Commission for Women:
The powers and functions of the National Commission for Women could be best described in the words of Mrs Mohini Giri, the present Chairperson of the National Commission for Women (NCW):
“….at present the NCW has the power to summon anyone but does not have the power to enforce its decisions. It is an autonomous body, enjoying the powers of civil courts but without penal authority.”
It was in this context that Mrs Mohini Giri recommended the appointment of Women Rights Commissioners to enforce the Commission’s decisions and to punish those found guilty of offences against women.
Though the Government of India has signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), it also has made a unilateral declaration that “with regard to Articles 5(a) and 16(1)…the Government of India declares that it shall abide by…these provisions in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent.” The government ratified CEDAW without any reservations on 9 July 1993 and is now obliged to implement the entire Convention. The policy of non-interference is incompatible with the objective of the Women’s Convention, which is to improve the status of all women, regardless of cultural and religious specificities.
While some reforms have been introduced in the criminal laws to deal with the issue of violence against women (rape and dowry laws), they have not been effectively implemented. There is also a complete absence of laws dealing with women workers, most of whom are employed in the unorganized rural sector. Equal pay for equal work for women workers in the construction industry or in agricultural labour sector remains eons away.
Domestic violence has assumed terrifying proportions in India. Government statistics show a phenomenal rise in crimes against women. It is also recognized that these statistics represent the tip of the iceberg since most cases of violent crime against women go unreported. About 10,226 rape cases were reported in the country during 1994 while there were 4,277 dowry deaths. In 1993 there were 11,242 rapes and 5,817 dowry deaths.
Women are very vulnerable in armed-conflict situations. In Kashmir, for example, Armed Forces personnel have committed custodial rape with impunity, according to numerous authenticated reports. The same is true in the North-East, a region torn by insurgency.
On 5 February 1996, a regional political party, the Tripura Upajati Juba Samiti (TUJS), staged a ten-hour mass sit-in demonstration in front of the Takarjala Police Station in the West Tripura district to press for the resignation of the state’s Home Minister Mr Samar Chowdhury and the punishment of the guilty Tripura State Rifles (TSR) personnel in the alleged physical assault of 11 tribal women. The TUJS alleged that of the 11 women, three were also criminally assaulted by TSR personnel during a search operation conducted to nab members of an armed opposition group around the Takarajala police station area.
Ms Bula Sinha, a 27-year-old woman, was killed and at least 20 others were injured when police opened fire on the Nikhil Bishnupuriya Manipuri Students’ Union and Bishnupuriya Manipuri Gana Sangram Parishad activists. They were trying to disrupt rail traffic on the Dharmanage-Badarpur route in Assam in a 501-hour rail roko (stop trains) agitation which demanded the introduction of the Bishnupuriya Manipuri language in the primary schools of the State.
The State Government of Uttar Pradesh set up a committee headed by the Chief Secretary, Mr Mata Prasad, to implement the Allahabad High Court verdict awarding compensation to the rape victims of the Uttarkhand agitation. The Allahabad High Court had earlier passed strictures against the Police on a writ petition filed by the Uttarkhand Sangharsh Samiti in connection with the incidents of 2 October 1994. The police resorted to firing and many women were raped and molested in Muzaffarnagar.
On the morning of 28 May 1996, personnel of the Rashtriya (National) Rifles stationed at Budgam town visited the village of Patwaw in Budgam district of Central Kashmir. Captain B L Dhoot led the personnel. They searched the houses in the village and finding nothing incriminating, they left. They returned the next morning, 29 May 1996, a little after 9 am. While entering the village, they noticed one Ali Mohamed sleeping in the field. Ali Mohamed upon seeing the approaching soldiers, fearing a thrashing at the very least ran towards his house in the village. This evoked the suspicion of the soldiers. They soon re-entered the village and specifically went to the house of Ali Mohamed. There the Captain, Mr Dhoot, and some other soldiers reportedly sent out all the men folk from the house. They then, it is alleged, raped Ms Shahida aged 22 years, daughter of Mr Baqir Mir and wife of Mr Bashir Ahmed. The soldiers are also reported to have raped Ms Mariam aged 21 years, wife of Ali Mohamed who had been sleeping in the field. SAHRDC learnt of this incident on 30 May 1996, outside a polling station in Budgam town. A villager who had observed for some time an SAHRDC researcher making enquiries from voters came up to the researcher and informed him of the incident. SAHRDC visited the village the next morning, i.e. 31 May 1996. Mr Tiziano Terzani, the New Delhi correspondent of the German Weekly “Der Spiegel,” accompanied the SAHRDC researcher. As the researcher was interviewing the village elders, he learnt that the Deputy Commissioner of the area, a Mr Naik, accompanied by the Senior Superintendent of Police, had visited the area earlier that morning to investigate the rape complaint. SAHRDC requested the village elders to take the two girls to a Medical practitioner for a detailed medical examination. However, the village elders said that this was not possible as it was against their religious practice and their cultural norms; those professing the Shia persuasion of Islam inhabit the village of Patwaw. SAHRDC is cognizant that evidence of rape is difficult to substantiate when medical examinations are not done. SAHRDC was unable to convince the villagers to take the women to the local police station to file a First Information Report (FIR). The village school master informed SAHRDC that they did not want to anger the Rashtriya (National) Rifles personnel any further. They said that filing an FIR would only invite additional unwanted attention from the personnel of the Rashtriya (National) Rifles. SAHRDC’s attempts to contact the Deputy Commissioner on the phone from Srinagar elicited no response.
A survey on the condition of women in Punjab reported that for every rape case registered in Punjab, nearly 70 go unreported. For every reported case of molestation, nearly 375 were not registered with the police. For every case of dowry harassment, 299 cases are unreported. Rape, molestation, and wife-beating were most prevalent in rural areas, while dowry deaths, dowry harassment, and eve-teasing took place in urban areas. Eighty percent of rape victims belong to lower castes, while a high percentage of those sexually abused or molested are in upper strata. More cases are reported to panchayats than to the police; however, the response of the panchayat depends on the caste and class of the victim. Lower caste victims are neglected, while lower caste attackers were severely punished, especially if the victim was of a higher caste.
In situations of armed conflict, women are vulnerable by the mere overwhelming presence of hostile men, whether members of armed opposition groups or soldiers.
Central Reserve Police Force (CRPF) personnel at Thalibari under Taidu Police Station of South Tripura district raped three tribal women on 1 April 1995 during a combing operation. The officer in charge of Taidu police station, a Central Reserve Police Force (CRPF) subedar (head constable), and 12 constables had raped the above mentioned three tribal women. One was pregnant, and another was a minor. A preliminary enquiry by the CRPF found prima facie evidence of rape. An inquiry by the District Magistrate of South Tripura, Mr Alok Dev, found CRPF members guilty of committing rape.
In another incident, seven CRPF personnel were arrested for raping five women, including a 10-year-old girl and three students, at Jutlidari village in Dibrugarh, Assam on 5 April 1994. The medical examination was conducted on 7 April 1994, 36 hours after the incident took place. The delay makes medical evidence even more difficult to come by to prove rape. The CRPF personnel were arrested.
In April 1995, the Delhi High Court ordered the transfer of a 12-year-old girl, allegedly raped by five policemen and three others two years ago, from the government observation home to the government children’s home. Usually children are kept for three months. If the parents are not found, the children are sent to other homes. Four NGOs, including the People’s Union for Civil Liberties (PUCL), filed a petition requesting that the girl be kept in the home until further orders. The rape case is still in the preliminary stage before the Sessions Court of Mr B V Chaturvedi due to a lack of evidence. The case gained notoriety when the girl was asked to testify before the court on the circumstances of her rape. Apparently, the Sessions Court asked her “offensive questions which should not have been asked under Section 152 of the Indian Evidence Act of 1872.” The policemen who committed the rape have not yet been convicted, nor has Rashid Khan, who brought the girl from Bangladesh.
Mr Karam Chand Jhaku, an under-secretary in the Union Home Ministry, allegedly sexually abused his eight-year-old daughter for several months. Mr Jhaku was arrested after his wife and daughter approached the police and Home Ministry officials. The case came up on 18 May 1995 before Sessions Judge Mr H R Malhotra. The NOIDA police had refused to register the case when the complaint was first made to them.
The ill-treatment of women by the police is a common phenomenon. A female student of Jamia Millia University in New Delhi approached the police to lodge a complaint of sexual harassment. The woman happened to be sharing an apartment with four other female students. The police reportedly told her that they would escort her around the colony to see how people reacted to her. Five women students from Jamia Milia Islamia were forced to leave their rented flat on 10 May 1995 when they were repeatedly harassed by local men. The police refused to register the complaint.
2. National Commission for Scheduled Castes and Tribes:
The Government of India widely refers to the National Commission for Scheduled Caste and Scheduled Tribes. Even though the Act came into force on 30 January 1990, only one Annual Report has been placed before the Parliament, and that was the 1990 report filed in 1993. Thus, the very purpose of an Annual Report on the Act has been frustrated.
Though the cases of atrocities against the Scheduled Castes and Scheduled Tribes registered under the Indian Penal Code during 1990 exceeded 21,000, those registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were less than 4000, or 18 percent of the total. Of these, 632 or 17 percent of the total number of cases were closed by police after preliminary investigation, 60 percent were chargesheeted in the courts, and 23 percent were pending investigations at the end of the year.
National Commission for Minorities (Paras 23-24)
The Government of India fails to provide any indicators to attest to the efficacy of the Minorities Commission. There is little information about the activities of the National Commission for Minorities and whether it has submitted Annual Reports regularly.
The decision of the State Government of Maharashtra to abolish the State Minorities Commission reflects on the status of the Minorities Commission. A coalition of the Hindu fundamentalist Shiv Sena and the Bharatiya Janata Party controls the Maharashtra State Government. Shiv Sena’s involvement in communal riots in Bombay and its attacks on Muslims are well known. Yet, the Supreme Court of India upheld the abolition of the Minorities Commission in its judgement on 18 February 1997. The Court stated “Maybe the perception is not correct in the view of another political party. The decision may not be right…… Under the circumstances, we can not hold that decision to abolish the Minorities Commission by the State Government, in the absence of any statutory compulsion, was not in accordance with law”.
A State Government can dismiss a State Minorities Commission at its whim.
National Human Rights Commission (Para 25)
The National Human Rights Commission (NHRC) was established in 1993 under the Protection of Human Rights Act, 1993. Mr V N Gadgil, the official spokesperson of the then ruling Congress (I) party, stated on 24 April 1992 that “It’s findings will act as correctives to the biased and one-sided reports of the NGOs. It will also be an effective answer to politically motivated international criticism.”
NHRC and abuses by armed forces
The National Human Rights Commission (NHRC) has no power to investigate human rights abuses by the “Armed Forces.” Under Clause 19 of the Protection of Human Rights Act 1993, where a complaint alleges human rights violations by a member of the armed forces, the NHRC may seek a report from the Central Government and may make its recommendations to the government only. It can not take any action against the army. This itself exposes the Government’s lack of concern for strengthening human rights institutions.
The Extrajudicial Killings of Khesiho Sumi
The National Human Rights Commission of India registered a case in the death of Khesiho Sumi. India’s Defence Ministry in its response to NHRC stated that Khesiho Sumi was arrested on 12 November 1995 from Purana Bazar in Nagaland because he was moving in a suspicious manner. Two days later, while he was allegedly being taken on a mission to uncover the hide outs of insurgents, Khesiho Sumi allegedly jumped from a running vehicle and was injured. When he was brought to hospital, he was declared dead. Since the NHRC could not find positive evidence of assault, it was not in a position to hold that Khesiho died of torture and recommended compensation of Rs 100,000 to the next kin of the deceased for violation of the law.
The directions of the NHRC brings into focus its inability to take action against the Armed Forces. Its lack of investigative machinery to deal with violations of the Armed Forces was exposed by its inability to reach a conclusion as to the reasons behind the death of Khesiho Sumi. The NHRC depends completely on the findings of the departmental inquiries of the Armed Forces. Such departmental inquiries have continued for decades without any salutary effect.
Mr Khesiho Sumi was allegedly extrajudicially executed after severe torture. The question arises since Khesiho Sumi died in suspicious circumstances, did the NHRC bother to inquire about the post mortem? If a post mortem was held, then what did it reveal, and if a post mortem was not held, what were the reasons for not doing so?
Most of the allegations of human rights infringements are against members of the armed forces who are deployed in low intensity conflict situations. Impunity is one of the main factors contributing to human rights violations. Section 6 of the Armed Forces Special Powers Act, 1958 and the amendment to section 197 of the Criminal Procedure Code in 1991 grant blanket immunity to members of the armed forces for the acts committed while on duty and for all actions taken by officials when a particular state is under President’s rule.
Scrutiny of the NHRC’s Annual Report for the Year 1994-95
In its Annual Report for the Year 1994-95, the National Human Rights Commission (NHRC) of India stated that the performance and credibility of the NHRC must rest on the “twin pillars of autonomy and transparency”. The treatment of complaints provides quite a different picture, however.
The NHRC considered 5710 complaints out of the 6,987 complaints that were received during the year 1994-95. Out of the 5710 cases, 2483 cases were dismissed in limini, 1567 cases were disposed off with directions, 276 cases were concluded, and 1348 are still pending.
The statistics provide that 43.49% (2483 cases) of the considered cases were dismissed in limini and a mere 17.61% of the cases (276) were concluded. The illustration in the Annual Report of only 12 cases out of 276 concluded cases — a mere 4.35% — and the complete dependence on the government agencies for investigation show that the phrases like “autonomy and transparency” are misdescriptive of the National Human Rights Commission. A “illustration” of only 12 of the 276 cases does not help in the assessment of the process of determination followed by the NHRC.
The NHRC does not have any written guidelines for making complaints, and the Second Annual Report fails abysmally to spell out clearly the grounds for dismissal of 43.49% of the complaints filed before the NHRC. The NHRC needs to explain the grounds for dismissal of many individual cases if it is to be seen, in its telling words, “to act with transparency and autonomy.” Setting written guidelines for the screening, registration and rejection of complaints is of paramount importance if the NHRC is to avoid allegations of being partisan and of taking up politically-convenient cases.
Human Rights abuses by the Armed Forces and NHRC
The Committee on Human Rights (COHR) in Manipur filed a complaint regarding the death of civilians in cross-firing between the 20th Assam Rifles and the National Socialist Council of Nagaland (NSCN) guerrillas in Ukhrul town. The COHR further alleged indiscriminate use of lethal force and illegal detention of the civilians. The NHRC “after considering the report of the Ministry of Defence was satisfied with the response” that the army had cordoned off the area, organized peace meetings with prominent church leaders and others of Ukhrul town, and exercised maximum restraint. The Defence Ministry report referred to in the Annual Report does not comment on the civilians killed. Nonetheless, the Commission recommended the Defence Ministry to pay compensation of Rs 50,000 to the next of kin of three civilians killed in the alleged cross firing.
This incident raises a few pertinent questions about the NHRC’s inquiry process. If the army had the time to organize a peace meeting, how were these three civilians killed? What about the NHRC’s reaction to the violation of the United Nations Principles on the Code of Conduct for Law Enforcement Officials on the use of firearms? What was the NHRC’s action about the alleged indiscriminate arrests and torture?
The answer to these questions is very simple. If the NHRC is satisfied with the report submitted by the Ministry of Defence and awards judgement on the basis of the reports submitted by the concerned parties, then there is no independent investigation. If there are no independent investigations, then the whole purpose of establishing an Human Rights Commission is a ploy to protect the culprits belonging to the Armed Forces. The NHRC is nothing but a mere “post office” when it comes to complaints concerning the Armed Forces.
The National Human Rights Commission rightly criticizes the systemic weaknesses in the police and criminal justice system as reasons for the violation of human rights. However, the increasing overload of the NHRC indicates that NHRC is heading towards the same problems as the criminal justice system it criticizes. Out of 1567 cases which were disposed of with directions, only 276 cases were concluded and 1348 cases are still pending. This also includes the cases which were registered in 1993-94.
Recommendations:
The Government of India should make amendments in Article 19 of the Human Rights Act 1993 to empower the National Human Rights Commission to investigate human rights abuses committed by the Armed Forces.
V. IMPLEMENTATION OF SPECIFIC ARTICLES OF THE CONVENTION:
Article 1: Paras 28-32
The right of self determination is an integral part of human rights. What constitutes the right of self determination is open to interpretation. In SAHRDC’s opinion, the right of self determination is relative and is best left to the interpretation of the “peoples” and “self” in question. While in certain situations the right of self determination could be interpreted as the right to land and resources, those under military dictatorship may interpret the right of self determination as the right to elect their government in a democratic manner.
The root cause of most internal conflicts can be traced back to the systematic denial of the fundamental right to self determination and national sovereignty. Hopes for peace, harmony and for long-term, sustainable development rest firmly on the foundation of self-determination and national sovereignty for all peoples.
Indigenous peoples have been forced of their land, their habitat destroyed, the fabric of their culture torn apart. When they fought back to preserve their land, their life, the custom and their culture, they were branded as terrorists.
Democracy is an integral and essential element of self determination. It is more than the ritual casting of a ballot at one party or multiparty elections. True democracy involves participatory democracy by the people at all levels so that the people have a voice in the decisions by which they are governed.
Article 2: Paras 33-37
There are many rights enshrined in the International Covenant on Civil and Political Rights which have not been incorporated in the Indian Constitution. Detailed comments are given below about India’s reservation to Article 9 of the ICCPR relating to the right to compensation. The right to privacy in Article 17 of the ICCPR has not been incorporated in the Indian Constitution. Although the Supreme Court has given the guidelines on telephone tapping and in a host of areas such as censorship of letters and other matters, the right to privacy is violated with impunity.
India’s intelligence agencies continue to open letters/parcels from Jammu and Kashmir sent to the South Asia Human Rights Documentation Centre. SAHRDC approached the National Human Rights Commission about such censorship while submitting an Alternate Report to the Committee on the Elimination of Racial Discrimination in July 1996. The mail of many NGOs in Delhi and in strife-torn areas continues to be subjected to censorship.
The problem does not relate to lack of legal mechanisms to challenge the constitutional validity of various legislation. In India, the Parliament has enacted numerous “unlawful laws” like the TADA and the Armed Forces Special Powers Act, 1958. Although a petition challenging the constitutional validity of the Armed Forces Special Powers Act was filed more than a decade ago, the Supreme Court has yet to rule on its constitutionality. In the meanwhile, Indian armed forces continue to violate human rights, including the right to life, with impunity.
Article 3:
The Government of India has set up the National Women Commission and has enacted numerous laws to improve the condition of women. Legislation such as Child Marriage Restraint Act 1976, the Dowry Prohibition Act 1961, the Commission of Sati Prevention Act 1987, the Indian Succession Act 1925 and the Hindu Succession Act 1956 are a few notable examples.
But, as stated previously, the National Womens Commission does not have adequate powers to take measures to improve the conditions of women. Furthermore, systemic failings are apparent in all this legislation.
Dowry deaths are rampant across the country. Women are tortured, inhumanly degraded and burnt for not bringing enough money when they get married. Newspaper columns are full of such incidents. Yet, due to the serious gaps in the Dowry Prohibition Act, very few get punished. Justice was not even done in the case of Roop Kanwar, a young widow who was forced to commit Sati by being compelled to ascend the funeral pyre.
Recommendations: The Government of India provide detailed statistics about the number of cases filed for crimes against women and the number of convictions in all these cases.
Article 4:
Paras 49-56: In India’s second periodic report, the Government of India points to terrorism as its main justification for the enactment of TADA, the National Security Act and the Armed Forces Special Powers Act, three draconian measures. It is necessary to set the history of the enactment of this legislation straight.
The National Security Act was passed in 1980 to ostensibly prevent smuggling. Punjab and Jammu and Kashmir did not experience any militancy during that period. The Government of India used the National Security Act, 1980 to silence political opponents. The first victim of the National Security Act (NSA), 1980 was the late Mr Shankar Guha Niyogi, a trade union leader fighting for tribal laborers in Chattisgarh area of the Central Indian State of Madhya Pradesh. Mr Shankar Guha Niyogi was later assassinated. The second victim of the NSA, 1980 was Mr P Chidambaram (not India’s present Finance Minister!), a trade union leader from the Indian State of Gujarat. The third victim of the NSA, 1980 was Mr A K Roy, an independent Member of Parliament from the Dhanbad constituency of the Indian State of Bihar and a trade unionist.
Over the years, the National Security Act, 1980 was used against political opponents. The Act was later extended to areas of internal armed conflict.
An Analysis of the National Security Act of India, 1980
“Secret violence is confined to isolated and very small parts of India and to a microscopic body of the people. But the passing of the Bills, designed to affect the whole of India and its people and arming the government with power out of all proportion to the situation sought to be dealt with, is a greater danger.”- Mahatma Gandhi in his letter to the press protesting the Rowlatt Act on 1 March 1919.
The rallying cry of anti-Rowlatt Act protestors translates “no appeal, no argument, no lawyer”. The Gandhi-led `Satyagraha’ protests against the Rowlatt Act of 1919 registered the birth of a new age of civil rights awareness in India. This civil rights movement laid the groundwork for the independence campaign that eventually led to the end of British rule in India. Yet laws similar to the Rowlatt Act outlived British colonial rule in India.
The National Security Act of 1980
The National Security Ordinance was promulgated on 22 September 1980, and subsequently replaced by the National Security Act on 27 December 1980. The objects of the Ordinance were stated as follows:
“In the prevailing situation of communal disharmony, social tensions, extremist activities, industrial unrest and increasing tendency on the part of various interested parties to engineer agitation on different issues, it was considered necessary that the law and order situation of the country is tackled in a most determined and effective way.”
Evaluating NSA under National and International Law
(a) SUBJECTIVE SATISFACTION OF DETAINING AUTHORITY
Section 3 of the NSA empowers the Government to issue a detention order if satisfied with respect to any person that such an order is necessary. The `subjective satisfaction’ of the detaining authority is the statutory requirement for the exercise of this power. The use of the subjective satisfaction of the detaining authority as the sine qua non of such a law is an overly broad delegation of power to the executive. Courts have been crippled in their capacity to effectively review detention orders made pursuant to this Act. In the end, this language precludes adequate judicial oversight of the executive’s exercise of this extraordinary power. The meager and ineffectual doctrines elaborated by the Courts provide ample evidence on this point.
Courts have developed little in the way of preconditions for the formation of the executive’s subjective satisfaction, having elaborated only vacuous standards. In Anil Dey v. State of West Bengal, the Supreme Court held that the veil of subjective satisfaction of the detaining authority cannot be lifted by the Courts with a view to evaluating its `objective sufficiency’. However, the satisfaction must be `honest and real and not fanciful and imaginary.’ The executive is required to `apply his mind’ to the decision to issue a detention order. Such standards are wholly inadequate to the task of defining an adequate and effective jurisprudence of preventative detention.
The standard rarely employed by Courts is that the materials used to inform the satisfaction of the executive must be of “rational probative value and must not be extraneous to the purpose of detention.” Only standards of this sort could accommodate full judicial review of detention orders.
More often the Court liberally construes the satisfaction of the executive. “The Court cannot substitute its own opinion for that of the detaining authority by applying an objective test to decide the necessity of detention for a specified purpose.” NSA establishes a substantive standard that creates an impossible procedural burden.
The executive is required by the dictates of natural justice and international human rights law to weigh and scrutinize the material made available to it and only then to reach a conclusion as to whether detention is necessary. The judiciary, however, must possess the institutional and statutory capacity to review this process, particularly when said process might result in the deprivation of fundamental liberties.
(b) ADVISORY BOARD AND DISTRICT MAGISTRATES: NSA AND THE EXECUTIVE REVIEW PROCESS
Prior to a case reaching the point of judicial review, the NSA prescribes the procedure for preventive detention orders. That is, a full review process is contemplated by the legislation itself. Warrants issued under the NSA can be and most often are issued by executive officers. Following arrest, detainees must be presented before an executive magistrate as soon as possible. Finally, the detainee has the right to have his case reviewed by an executive-appointed Advisory Board wherein a decidedly administrative, rather than judicial, review of the case is undertaken. Only then can a petition for a writ of habeas corpus be filed. All the `procedural protections’ afforded by the NSA involve executive review of decisions of the executive.
(c) THREE MONTHS ARBITRARY DETENTION
Even if the Advisory Board hearing constituted a full judicial review of the case, which it clearly does not, the NSA and the Constitution of India allow for detainees to be held without judicial review for up to three months. In Vijay Narain Singh v. State of Bihar (AIR 1984 SC 1334), Justice A P Sen proclaimed, in dissent, that:
“The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizens except in accordance with the procedure established by law.”
(d) RIGHT TO A FAIR TRIAL
The right to a fair trial is a fundamental freedom vital to civil society. Under preventative detention laws like the NSA, the right to a fair trial is systematically and comprehensively undermined.
Several comments can be made about the NSA in view of these established principles of international human rights law. First, the Advisory Board hearings do not comport with the requirements of Article 14 of the ICCPR. The Human Rights Committee has noted that special or military courts often “do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights.” The trial of civilians by such special courts should be confined to exceptional circumstances. The European Court and the European Commission of Human Rights requires that a trial be before an `independent and impartial tribunal’. The Court and the Commission have held that such a tribunal necessarily involves independence from the executive and the parties to the proceedings.
Second, the overly vague provisions of the NSA deny any possibility of a fair proceeding. The terms `public order’, and `security of state’are hopelessly vague. Accordingly, the NSA involves an overly broad grant of power to the executive that is unacceptably vulnerable to abuse.
The Courts have been unable to establish a consistent jurisprudence regarding these concepts. In the landmark judgement of Ram Manohar Lohia v. State of Bihar (AIR 1966 Sc 740), the Supreme Court distinguishes between the concepts `security of state’, `public order’, and `law and order’. In a now famous passage, Justice Hidayatullah stated: “One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of state. It is then easy to see that an act may affect law and order but not public order just as an act might affect public order but not security of state.” Acts which affect only `law and order’ and not the other two categories cannot be sufficient grounds on which to base a detention order. This case is universally cited in subsequent cases involving challenges to the sufficiency of grounds.
In an attempt to further specify the meaning of the concept `public order’, the Court in Arun Ghosh v. State of West Bengal (AIR 1970 SC 1228) constructs a definition (perhaps it is merely a turn of phrase, rather than a definition, though it is widely treated as a jurisprudential breakthrough) of acts contravening the `public order’. The Court stated: “Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility…[Acts of this sort] affect the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order…”
There is a logic to this definitional argument that points to the ever-expanding ambit of the National Security Act. In Union of India v. Tulsiram Patel, the Court spelled out the distinction between the three categories:
“The expressions `law and order’, `public order’, and `security of the State’ have been used in different Acts. Situations which affect `public order’ are graver than those which affect `law and order’. Thus those situations which affect `security of the State’ are gravest. Danger to the security of the State may arise from without or from within the State. The expression `security of the State’ does not mean security of the entire country or a whole State. It also cannot be confined to an armed rebellion or revolt.”
The routinization of emergency finds expression in the writings of the highest Court in the land and the rule of law according to just procedure becomes an increasingly remote possibility.
(e) RIGHT TO LEGAL COUNSEL
In Wasi Uddin Ahmed v. District Magistrate, Aligarh (AIR 1981 SC 2166), the Court ruled that the provision of Article 22 (5) requiring the Government to “afford” the detainee the opportunity to make a representation implies the right of the detainee to be informed of his or her rights under 22 (5). “The right to make a representation implies what it means — `the right of making an effective representation’.” [at 2173].
“The rationale for these decisions is that the right to be supplied with copies of documents, statements, and other materials relied upon in the grounds of detention without any delay flows as a necessary corollary from the right to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised.” [at 2173].
Thus, the language “and shall afford” in Article 22 (5) creates a positive right for the detainee: “The words `and shall afford’ in Article 22 (5) have a positive content in matters of personal liberty.” [at 2174].
“The right of the detenu to make a representation under Article 22 (5) would be, in may cases, of little avail if the detenu is not informed of this right.” [at 2174].
In the landmark judgment of A K Roy v. Union of India (AIR 1982 SC 710), the Supreme Court of India was asked to determine the constitutionality of the National Security Act. The NSA was challenged on numerous grounds in the A K Roy case. Among these was the charge that the NSA unconstitutionally denied detainees their fundamental right to representation by legal counsel in hearings before the Advisory Board. The Court rejected this claim, maintaining that detainees do not have the right to representation in Advisory Board hearings. The legal logic employed by the Court betrays its ultimate conclusion.
The A K Roy Court admits that: “Consideration by the Advisory Board of the matters and material used against the detenu is the only opportunity available to him for a fair and objective appraisal of his case.” [at 743]. Why then does this fact not imply, or rather demand, that the proceedings undertaken by the Advisory Board be as similar to normal judicial proceedings as possible?
When speaking of the right to legal counsel and the right to confront and cross-examine witnesses, the A K Roy Court waxes eloquent on the importance of these procedural protections: “These rights undoubtedly constitute the core of just process because without them, it would be difficult for any person to disprove the allegations made against him and to establish the truth.” [at 744].
“The other ingredient of fair procedure to a prisoner, who has to seek his liberation through a court process is lawyer’s services. Judicial justice with procedural intricacies, legal submissions, and critical examination of evidence, leans upon professional expertise…” [at 1554].
“If Article 22 were silent on the question of the right of legal representation, it would have been possible, indeed right and proper, to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards.” [at 745]. The dictates of justice and fairness, according to the Supreme Court of India, require the right to counsel in hearings before the Advisory Boards. However, the Constitution binds their hands: “It is unfortunate that Courts have been deprived of that choice by the express language of Article 22 (3) (b) read with Article 22 (1).” [at 745]. The upshot is that the Court thinks the Article 22 (3) of the Indian Constitution runs counter to the requirements of natural justice.
The Court utilizes an age-old theory of constructive interpretation. The claim draws on the fact that Article 22 (1) provides for the right to counsel and Article 22 (3) (b) states that nothing in Art. 22 (1) or (2) shall apply to persons arrested or detained under any preventive detention law. The Court concludes that since Art. 22 (3) (b) must be read so as to exclude all the protections outlined in Art. 22 (1), the right to counsel does not hold in cases of preventive detention.
There are several problems with this approach. First, if this is the case, do detenus have the right to counsel in any habeas corpus hearings before a normal judicial body? The Court has held that they do. Why doesn’t the explicit provision of Art. 22 (3) (b) apply to these proceedings as well? On what grounds can it be maintained that detenus have the right to file writs of habeas corpus in the first place? The Court’s logic in A K Roy runs counter to the settled law of the land.
Second, the interpretive construction adopted by the Court is only one of several possible and plausible interpretive methods available to the Court. The choice of this method to the exclusion of others is a political choice. The choice of appropriate rules of interpretive construction should be primarily guided by the higher principles of justice which undergird the very idea of constitutional government. Third, part of 22 (1) could be incorporated into the protections extended to detenus. The Constitution itself may not confer this right to detenus but this does not necessarily mean that the right does not exist. The Court insists that natural principles of justice dictate that the accused be represented by counsel. Also, the Court held that in the face of Constitutional silence the right to counsel would be recognized. The effect of 22 (3) (b) is to silence 22 (1) with respect to persons arrested under preventive detention laws.
The Court qualifies the holding in A K Roy thus: in view of the requirements of Article 14 (equal protection), if the Government is represented by legal counsel the detenu must also be extended the same privilege. “Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner…would be in breach of Article 14, if a similar facility is denied to the detenu.” [at 747].
The Court has the right idea here, but the Justices do not want to face the implications of their own ideas. The Government is always implicitly, and explicitly, operating under the advice of `legal practitioners’. The Government is well aware of the provisions, standards, and rules of evidence of the National Security Act and its ancestors. The Government has the distinct advantage of experience, given that the detaining authorities regularly issue orders for detention, whereas detenus, except in extreme cases, appear before the Advisory Board only once or twice. The detaining authority fully understands the procedure whereby the detention orders are to be issued and the matter submitted for review. After all, the Court’s rulings can be said to check the excesses of the executive only if the executive is both well aware of the Court’s findings and adjusts its administrative behavior accordingly.
The Government is at a very real advantage in these proceedings whether or not an attorney appears before the Board on behalf of the Government. Surprisingly, the Court fails to acknowledge this power imbalance despite the fact that it attempts to establish a stringent standard: “…no one should be enabled to take shelter behind the excuse that such officials are not `legal practitioners’ or legal advisors…whosoever assists or advises on facts or law must be deemed to be in a position of legal advisor.” [at 747]. By this definition, what Governmental authority operates without the assistance of `legal advisors’?
(f) RIGHT TO PRESUMPTION OF INNOCENCE
The presumption of innocence is the starting point for all standards regulating the procedures required of a fair and just trial. Many international legal instruments recognize the presumption of innocence as a fundamental human right.
The UN Human Rights Committee, in General Comment 13 (7), interpreted the presumption of innocence requirement of the ICCPR:
“…By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.”
Preventive detention contravenes the presumption of innocence requirement in a number of ways. First, the very idea of preventive detention violates the defendant’s presumption of innocence since such laws allow for the imprisonment of an individual irrespective of whether any formal charges have been filed. Preventive detention laws provide for the arrest and detention of individuals who have committed no crime. The underlying principle of the presumption of innocence is denied to persons detained because of the anticipated actions of the detenu. Second, the NSA violates the presumption of innocence by requiring only the `subjective satisfaction’ of the detaining authority as to the necessity of detention. Since this `subjective satisfaction’ is not reviewable by the courts, the necessity of detention is presumed to be true, rather than the `innocence’ of the detenu.
(g) NOTIFICATION OF ARREST
Article 22 (5) of the Constitution of India provides that all persons arrested under any law providing for preventive detention must be informed of the grounds on which the detention order is based. However, the protections afforded the detenu in the Indian legal system do not go far enough. The right to proper and prompt notification is considered a fundamental right only in so far as it is considered a precondition for the meaningful exercise of other fundamental rights. The right to notification then is a necessary but not sufficient condition for a fair trial in the eyes of international law and well-established principles of natural justice. In the Indian context, these other fundamental rights, the right to an attorney, cross-examination, and full judicial review, are not secured.
(h) APPEARANCE BEFORE A JUDICIAL AUTHORITY
All persons facing detention for criminal charges (or quasi-criminal charges) have the right to be brought promptly before a judicial authority whose legally sanctioned responsibilities include evaluating the legality of the arrest and detention.
In Alberto Grille Motta v. Uruguay (11/1977), the Human Rights Committee held that a delay of one month between arrest and appearance before a judicial authority did not meet the requirement of `promptness’ in Art. 9 (3) of the ICCPR. In response to a country’s report on its compliance with the ICCPR, the Committee stated that a law which allowed five days between arrest and appearance before a judicial authority violated the dictates of 9 (3)..
Authorities responsible for the detention of a person should not be the same authorities as those responsible for the investigation and arrest of said person. Persons arrested should be placed in under the authority of officials under the supervision of a separate chain of command. The NSA contravenes these principles in two important ways.
First, warrants can be issued by executive rather than judicial officials. The subjective satisfaction of the detaining authority is the basis for this power. Second, under the NSA, detenus appear before District Magistrates who are executive magistrates. This double denial of judicial involvement in the detention process denies the detenu the right to appear promptly before an independent authority.
(i) SUBSTITUTES FOR CONFINEMENT
The ICCPR, in Article 9 (3), guarantees that persons awaiting trial will not generally be subjected to detention. The relevant provision states: “…It shall not be the general rule that persons awaiting trial shall be detained in custody…”
The United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) ensures in rule 6.1 that “[p]re-trial detention shall be used as a means of last resort in criminal proceedings…”
Rule 6.2 of the Tokyo Rules provides that ‘[p]re-trial detention shall last no longer than necessary to achieve the objectives stated under rule 6.1…”
In interpreting Art. 9 (3), the UN Human Rights Committee has held that detention pending trial should be used only where it is lawful, reasonable, and necessary. `Necessity’ is interpreted narrowly so as to allow States to invoke the claim that detention is `necessary’ only when needed “to prevent flight, interference with evidence or the recurrence of crime” or “where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.” The seriousness of a crime alone cannot justify detention pending trial. Thus, a `clear and present threat to society’ must be interpreted as a systemic threat wholly distinguishable from the seriousness of an isolated criminal offense. Imprisonment should always be a last resort. In India, preventive detention laws have created a culture of law enforcement where investigatory doubt translates into arrest and detention.
(j) LENGTH OF PRETRIAL DETENTION
The right to trial without undue delay means the right to a speedy trial in which a final judgment is rendered.
In its reviews of national legislation, the UN Human Rights Committee held that a six-month pre-trial waiting period is not compatible with Article 9 (3) of the ICCPR.
The NSA provides for detention of persons without charge for up to one year. No clearer violation of the aforementioned provisions could be envisioned. Even in the case of an Advisory Board hearing, which can in no way be considered a trial or any sort of full scale review, the detainee can be held for months before being heard by the Advisory Board.
(k) SUBVERTING CRIMINAL PROCESS
The possibility of launching a criminal prosecution against the detainee is not an absolute bar against issuing a detention order. As such, essential criminal processes (i.e. trial) can be circumvented by the executive through the use of preventive detention. Only a very small percentage of the prison population in India will receive sentences exceeding one year. In Bhutnath v. State of West Bengal, the Supreme Court rightly pointed to the danger that preventive detention might be used to `subvert’, `supplant’ or `substitute for’ the criminal law of the land. The Court in Kanchan Lal v. State of Gujarat expressed similar concerns once again, but in the end the Court constructed a legal rule which overly favors the State:
“The ordinary criminal process is not to be circumvented or short-circuited by ready resort to preventive detention. But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of the case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention.”
One need look no farther than the subsequent Supreme Court rulings to see the dangers implicit in such an approach. Justice Bahrul Islam, speaking for the Court in Smt Hemlata Kantilal Shah v. State of Maharashtra [AIR 1982 SC 8] ignored the warnings issued by the Bhutnath Mate Court against allowing the subversion of the normal criminal process. Notice how the Court reinforces the logic of Kanchan Lal and extends it, increasing the ambit of State power:
“The rule laid down is that a prosecution or the absence of it is not an absolute bar to an order of preventive detention; the authority may prosecute the offender for an isolated act or acts of an offense for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventive Detention Act…In some cases of prosecution it may not be possible to bring home the culprit to book as in case of a professional bully, a murderer or a dacoit; as witnesses do not come forward to depose against him out of fear, or in case of international smuggling, it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt.”
Such logic poses a serious threat to the rule of law in India. The Government, including the Court, puts the cart before the horse on a number of issues here. The fundamental principles embodied in both the Constitution of India and various International Instruments, including the Universal Declaration of Human Rights and the International Covenant on the Protection of Civil and Political Rights, require just criminal procedure as a prerequisite to incarceration. The Court in Smt Hemlata Kantilal Shah presumes that guilt can be established wholly divorced from the findings of a duly-convened criminal proceeding. This major premise in the Court’s argument is deeply flawed. Under the rule of law, `offenders’, `murderers’, and `dacoits’ are `defendants’ until proven guilty in a court of law.
Worse still, the Court claims that `unreasonable delay or expenditure’ in the prosecution of accused international smugglers would justify the use of preventive detention in lieu of normal criminal proceedings. The upshot of the Court’s holding is that the guarantees of Article 21 of the Indian Constitution can be suspended by the executive (not even the President of the Union, but by a local executive magistrate). The executive nimbly performs this feat through the use of preventive detention laws, on the grounds that a normal criminal prosecution involves `unreasonable expenditure’ or effort.
Under no circumstances should the law of the land allow imprisonment without trial merely because authorities think it “irksome to undertake the inconvenience of proving guilt in court”. The prospect of an executive tendency “to shy at courts for prosecution of ordinary offences and to rely generously on the easier strategy of subjective satisfaction” represents a severe threat to civil society.
The Courts have provided little in the way of safeguards against this eventuality. In Kanchan Lal, the Supreme Court turned to the long-standing `application of mind’ standard. As a check on the power of the detaining authority, the `application of mind’ standard requires that the court be satisfied that the detaining authority reached the requisite `subjective satisfaction’ through `applying his or her mind’; that is, the detaining authority reached an informed, deliberative decision. The `application of mind’ requirement imposes no effective constraint on the detaining authority. Such a procedural protection ensures only that the court be satisfied that the detaining authority took into consideration certain factors prior to issuing the detention order.
The problem with preventive detention laws is not that detaining authorities tend to act haphazardly, without purpose, or without the `application of mind’. The real threat to civil and political rights emanates from the pernicious intentions all too often found in those who occupy positions of power. That is, the courts need be aware of the `over-application of mind’ among detaining authorities.
The Act so understood gives a free hand to the executive to subvert the normal criminal law and the concomitant procedural protections. The executive might issue a detention order even following acquittal in criminal court proceedings:
“The Act creates in the executive authorities concerned a new jurisdiction to make orders for preventive detention. It is a jurisdiction of suspicion and it is different from that of judicial trial. Even unsuccessful judicial trial or proceeding would, therefore, not operate as a bar to a detention order, or render it mala fide [`in bad faith’].”
As such, detention orders can be passed pending the outcome of criminal trial. Parallel proceedings do not bar detention under the National Security Act. In Abdul Aziz v. District Magistrate, Burdwan, the Supreme Court asserted that it is conceivable that in some cases it may be necessary to pass a detention order in anticipation of acquittal. Since the Court views the difference between preventive and punitive detention and the related proceedings as a difference in kind, the grounds of a detention order might mirror the charges on which the defendant was acquitted in a full criminal trial. Such an order is permissible.
The distinction the Court wants to draw between preventive detention and ordinary criminal law deprives the judiciary of any effective means by which to check the executive. Preventive detention orders can be issued before, during and after criminal proceedings and the viability of the detention order is entirely distinct from the outcome of said trial. The Court has gone so far as to hold, on two occasions, that preventive detention has nothing to do with trial and punishment of persons for commission of offences. In the end, criminal law can be by-passed with reckless abandon.
The Court overlooks the most critical way in which the two types of prosecution are identical: both preventive detention and ordinary criminal law result in one of the most severe deprivations of personal liberty, namely imprisonment. The most important distinction between the two also seems to escape the Court: ordinary criminal law guarantees the accused a full, fair and public hearing wherein she is represented by counsel and allowed to cross-examine adverse witnesses while preventive detention laws do not.
(l) TREATMENT OF DETAINEES
Persons detained under the NSA must be segregated from prisoners convicted of a crime in violation of international human rights law.
Para 51: In paragraph fifty-one of its report, the Government of India referred to anti-terrorism legislation in the United Kingdom and France to justify this draconian legislation. The South Asia Human Rights Documentation Centre would like to state emphatically that alleged human rights abuses under an anti-terrorist law in the United Kingdom can not justify human rights abuses under anti-terrorist laws in India. In the simplest of terms, two wrongs do not make a right.
The state and parliament have discretionary power to enact necessary laws to meet extraordinary and abnormal circumstances. However, checks and balances must necessarily be incorporated to ensure that human rights are not violated. This is of the utmost importance. The United Kingdom has been subjected to serious criticism for its Prevention of Terrorism (Temporary Powers) Act of 1989.
The United Kingdom, which faces a highly organized and violent terrorist movement in Northern Ireland, has a provision in its anti-terrorist legislation that a suspect can be kept in custody without charge for seven days subject to the approval of the Home Secretary. The European Human Rights Court felt that even this was too long a period. The six month custodial period allowed under the Terrorist and Disruptive Activities Prevention Act (TADA), was more than twenty-six times that of the UK act, is clearly an unacceptably stringent provision.
Para 52: Defending the indefensible
In 1958, Parliament passed the Armed Forces Special Powers Act (AFSPA) to tackle a particular political problem — the Naga tribal insurgency. Amended in 1972, the AFSPA allows arbitrary arrest, search without warrant, and summary execution with virtual impunity; it was supposed to be on the statute book for one year. But 35 years have elapsed, the Act is still in operation, and the political problems of the Nagas remains as acute as when it was passed originally. In the process, AFSPA was extended all over the North East, and many innocent people have become victims of the Act.
While justifying the introduction of the Armed Forces Special Powers Act, the then Home Minister, Mr G B Pant stated on 18 August 1958 “there (Assam and Manipur), they (certain misguided sections of the Nagas, in the words of Mr Pant) are indulging in arson, murder, loot, dacoity etc. So it has become necessary to adopt effective measures for the protection of the people in those areas. In order to enable the armed forces to handle the situation effectively wherever such problem arises hereafter, it has been considered necessary to introduce this Bill (AFSPA).”
“If arson, murder, loot, dacoity, etc” are the yardsticks for the imposition of the Armed Forces Special Powers Act, then the Act has been imposed discriminatorily on the North East. There have been equal numbers of such incidents, if not more, in Uttar Pradesh and Bihar; the incidents of violence and insecurity of common citizenry has been systematic and persistent. Armed insurrections have taken place also in parts of India other than the North East: by the Maoist Communist Centre in Bihar and by other Maoist groups generically known as the Naxalites in Bihar, Andhra Pradesh, West Bengal and Madhya Pradesh. What is most disturbing is that state governments themselves have resorted to “arson, murder, loot, dacoity, etc” and sought to get away with impunity. A glaring example is the involvement of Shiv Sena, the Hindu right wing fundamentalist party, in the communal riots in Bombay in the aftermath of the demolition of Babri Mosque on 6 December 1992 and the subsequent attempt by the Shiv Sena-controlled Maharashtra Government to nullify the Sri Krishna Commission inquiring into these incidents.
According to the stated purpose of the AFSPA, it could well have been imposed in these States. This observation should not be misinterpreted: SAHRDC does not want the imposition of an unlawful law like the Armed Forces Special Powers Act in mainland India. What SAHRDC seeks is to highlight is the Government of India’s “step-motherly” treatment of North Eastern India and to assert unequivocally that if the normal law of the land such as Indian Penal Code and Criminal Procedure Code can deal with the violence in other parts of India like Uttar Pradesh, Bihar, Andhra Pradesh, there is no reason why the normal laws cannot address the situation in the North East. An emergency law which targets specific groups of people in clear violation of the Indian Constitution and India’s obligation under international human rights law is legally and morally unjustified.
“It pains me that we have an occasion in this House to give our assent to martial law which was forced on us by an Ordinance . . . . Why have they (Government) smuggled this legislation in this way? It is really a challenge to the concept of democracy and freedom that we have,” — stated the Deputy Speaker of the Lok Sabha while chairing the afternoon session on 18 August 1958.
Section 3 of the AFSPA empowers the Governor of the State, the Administrator of the Union Territory, or the Central Government to declare the whole or part of State or Union Territory to be a disturbed area. This is illogical: why can a Central Government representative declare some parts or the whole State as a “Disturbed Area” when there is a State Legislative Assembly to assess the law and order situation? The dismissal of many State Governments in the North East refutes the claim that India is a federal state in any practical way.
Section 4(a) of the Armed Forces Special Powers Act provides that any commissioned officer, warrant officer, non-commissioned office or any other person of equivalent rank in the Armed Forces is empowered to “fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of more than 5 or more persons or carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or, explosive substances” if he believes that it is necessary for maintenance of law and order. He may shoot to kill after giving such due warning as he may consider necessary.
These provisions give a broad “license to extrajudicially execute” innocent and suspected persons under the disguise of maintaining law and order. It violates every norm of civilized society: the primary responsibility of the State is the protection of the lives of the people, not the taking of those lives.
“This (Indian) Parliament is giving its seal of approval to a legal monstrosity to quell another kind of monstrosity,” said Mr Mohanty, Member of Parliament, on 18 August 1958 while opposing the AFSPA.
Article 21 provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 6 of the International Covenant on Civil and Political Rights states that the right to life is non-derogable. A law empowering security forces to deprive a person of his life or personal liberty on mere suspicion treads on the fundamental rights of Article 21 and Article 6. The courts have explained that a “procedure established by law” under Article 21 is a procedure which is reasonable, fair and just. But, the courts need to go further; they need to give a practical definition to the words “reasonable, fair and just.”
Is it “procedure established by law” when a non-commissioned officer can shoot to kill on mere suspicion? According to the AFSPA, this life or death decision would be made on the dubious basis of the non-commissioned law enforcement personnel’s intuition rather than on the solid ground of legal evidence and judicial decision.
“Does the honourable minister feel that this is the procedure, he can shoot if it is a disturbed area, that is the procedure established by law? He can shoot. Anybody can be killed or shot at, but is this procedure established by law, does it go to that extent? Article 21 says that no person can be deprived of his life. Here any person can be deprived of life by any commissioned officer, he can shoot.” — asked the Speaker of Lok Sabha on 18 August 1958 to the then Home Minister Mr G B Pant.
In its hearing on the Armed Forces Special Powers Act, the Government of India justified the legislation on the grounds that the armed forces operate on a “war footing.” This implies that there is a state of emergency in the areas where the AFSPA is imposed. However, the Government of India has never declared a state of emergency in the areas where the AFSPA is applicable. Why does the Government of India refuse to provide the International Committee of the Red Cross with access to the areas where Indian armed forces operate on a “war footing” and where there are possibilities of violations of international humanitarian laws?
While one appreciates the constraints the law enforcement officials face in abnormal circumstances, the test of any country’s commitment to the protection and promotion of human rights is reflected under such trying situations. Enactment of broad provisions empowering summary executions is not the way a modern civilized State ought to act. Instead, the Government should set strict limits to the circumstances in which firearms can be used to prevent arbitrary killing by the armed and police forces. It is necessary for the Government of India to ensure an adherence to the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
Section 4(C) of the Armed Forces Special Powers Act empowers a commissioned officer, a warrant officer, a non-commissioned officer or other ranking officer to “arrest without warrant, any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence… “. This provision violates the customary Indian Code of Criminal Procedure (CrPC) and Article 22(2) of the Indian Constitution.
Under Section 6 of the Armed Forces Special Powers Act, “No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government against any person in respect of anything done or purported to be done in exercise of powers conferred by this Act.”
This provision virtually eliminates any prosecution of armed forces personnel.
Para 53: The Government of India has been economical with the truth on the operation of the Armed Forces Special Powers Act when it says that “this legislation can be exercised only in situations enumerated in the legislation, namely dispersal of unlawful assembly, preventing persons from carrying weapons, destruction of arms dumps, search and seizure, and effecting of arrest of persons suspected of commission of a cognizable offence.”
For reasons of brevity, SAHRDC will cite only a few examples of where the Indian armed forces have massacred innocent civilians in cold blood in name of maintaining law and order. On request, SAHRDC can provide more detailed statistics and case studies of such violations of the right to life. Killings of innocent people and suspects under the Armed Forces Special Powers Act, 1958 in India’s North Eastern States is pervasive, systematic and persistent.
Imphal Massacre and the Armed Forces Special Powers Act in operation
On the morning of 7 January 1995, the Central Reserve Police Force (CRPF) personnel shot dead nine innocent ethnic Manipuris at the North East Regional Medical College (campus) in retaliation for attacks on them by members of an armed opposition group.
Justice D M Sen Inquiry Commission:
The Government of Manipur ordered an one man Inquiry Commission headed by Justice D M Sen, a retired Judge of the Guwahati High Court. On 15 July 1995, Justice Sen submitted his report into the deaths of the following persons:
Moni Riba, a student of Regional Medical College (RMC), Imphal, Manipur
Laimayum Pradeep Sharma, Chowkidar (guard) of the Sulab toilet
Wangkhem Upendra Singh, driver of a Ambassador Car, bearing Registration No. MNS 1379
Saikhom Premchand Singh, an auto rickshaw driver
Hijam Khogen, a young auto rickshaw driver
R K Khogen Singh, an auto rickshaw driver
Angom Debendra Singh, an auto rickshaw driver
Koijam Rajendra Singh, an auto rickshaw driver
Mohamed Jakir, a Manipuri Muslim and rickshaw puller
Manipuri ethnic Meitei armed opposition groups reportedly fired at the Central Reserve Police Force (CRPF) personnel posted at the North East Regional Medical College Hospital’s main gate who were guarding their colleagues who were injured in Bishenpur district on 1 January 1995. One CRPF soldier identified as Mr D S Yadav was injured in the firing. When the CRPF personnel returned fire, the members of the armed opposition group retreated. No civilian was injured in this exchange of fire.
However, the injury of Mr Yadav provoked the CRPF personnel of the 199th battalion sufficiently. They went berserk and rushed towards the Sulab toilet of the Hospital.
According to eyewitnesses interviewed by Justice Sen, the CRPF personnel shouted “Hamara Admi Mara, Sab Manipuri ko Maro” (our man has been killed; kill all the Manipuris.) At that point, three persons — Moni Riba, one Sulab toilet worker and one non-Manipuri — were crossing the old gate of the RMC. The armed forces personnel targeted the medical college student and the Sulab toilet worker and shot them dead in cold blood; they let the non-Manipuri go free.
After killing these two innocent persons, the three CRPF personnel came out of the old gate of the Regional Medical College (RMC) where cycle rickshaws were parked. Kunjamani Singh, a witness told Justice Sen that CRPF personnel were shouting by saying “Shala, Bhag Giya, Jitne Manipuri Hei Mar Dalo” (B…ards have run away, kill all the Manipuris present.) The rickshaw pullers raised their hands and identified themselves as rickshaw pullers. However, one CRPF personnel shot at them, and Mohamed Jakir was injured. According to Amusana Devi, after getting the bullet injury, Mohamed Jakir shout “Allah Hu Allah” and fell down on the ground. One of the CRPF men again approached him shouting “Kya Allah” (what Allah?) and shot him again. Mohamed Jakir died on the spot.
Regarding the death of five auto rickshaw drivers and of the car driver, the report of the Justice Sen Commission states:
“24. I shall now discuss the evidence relating to the causes and circumstances leading to the death of these six civilians namely Saikhom Premchand Singh, Angom Debendra Singh, R K Khogen Singh, Hijam Khogen Singh, Toijam Rajendra Singh and Wangkhem Upen Singh.
The evidence of T Chinglen Singh, CW 3 is very relevant in this connection. Chinglen Singh is an auto-rickshaw driver and he had parked his auto rickshaw at the parking place inside the RMC complex that morning. Shortly after 7 am, he heard one or two firing sounds from the direction of the Sulab toilet. Soon thereafter, he heard many firing sounds.
He felt that if he left the auto rickshaw parking space, he might be suspected by the CRPF personnel and be fired upon. When these firing sounds stopped, he left his auto rickshaw and proceeded towards the gate of the casualty Department. At that time, he saw some pairs of CRPF personnel running out from the ward and passing through the Casualty Department with Rifles in their hands. He went to seek safety in the room of the Nursing Staff. At that time he saw one CRPF personnel calling out the auto rickshaw drivers from their respective auto rickshaws. These drivers were then taken by the CRPF personnel towards the cycle shed.”
He then stated,
“Thereafter the CRPF started firing upon those auto rickshaw drivers when they reached the place in between the Casualty Department and cycle shed”.
He goes on to say,
“After a while firing stopped, I then raised up my head and looked out through the windows of the Casualty Department and saw those auto rickshaw drivers fallen on the ground…….. From the next room I also heard a shout by the said person that he was an auto rickshaw driver and had sustained injuries having shot down by the CRPF personnel, he was crying for help. On hearing the voice, I approached the said place and found death, he was R K Khogen Singh, auto rickshaw driver.”
The Justice Sen Commission of Inquiry states “The Commission on an appraisal of the evidence on record, the Affidavits and the exhibits filed, find there can be no other explanation for the death of the nine civilians and injury to another, except that they were fired upon by the CRPF after the militants had already retreated and when there was no further need for resorting to any firing by the CRPF. As already stated in the preceding chapter, Head Constable Ram Dayal, Constables S K Pandey and Uma Shankar were responsible for the death of Moni Riba, Pradeep Sharma and Mohamed Zakir and injury to Sarat Singh. The death of the five auto rickshaw drivers were caused by shots fired at them, by Puttu Lal, Mohamed Razak and may be one or two of the CRPF personnel, who were on guard duty in the Medical and Surgical wards and had also come out at that time. As for injuries sustained by Constable Mohamed Yusuf, the Commission has found that the militants had fired at him and caused the injuries.”
The Commission in recommendation number five stated that “It does not have to be stated that no person, however highly placed he may be or whatever official post or rank he may hold, is beyond the reach of the arms of the Law. Every citizen of our country, irrespective of his office, rank or status, is accountable under the law of the land for all his actions, official or otherwise. Further it is very unreal to take the stand that any investigation and prosecution, if so warranted, will reflect, adversely on the dignity, prestige, morale or lustre of any Security Force, on the contrary; punishment, where necessary, of refractory elements of a Security Force will only enhance its honour and dignity. The public will then have faith that the `President’s Uniform’ does not make a person immune to any legal action, if so justified; and that all of us are equally accountable under the law. Failure to adhere to this norm will only alienate the Security force from public.”
Yet the Government of India has yet to take any punitive action against the guilty law enforcement personnel. Prosecution of these guilty law enforcement personnel would require permission from the Union Government of India under section 6 of the Armed Forces Special Powers Act.
The Government of India’s report states that “The Act, Moreover specifically provides that once a member of the armed forces has arrested any person and taken him into custody, the person must be handed over to the nearest police station.”
This claim is absolutely false in practice. Members of the armed forces routinely severely torture and extrajudicially execute suspects before they hand the suspects, or their bodies, over to the police. The situation has become perverse. Given the track record of the armed forces in the North East, the National Human Rights Commission issued a directive in May 1996 “to produce any person arrested to the nearest police station” in the death of Kheshiho Sumi at the hands of the army.
Para 53: The examples given above in paras 51 and 52 have made it clear that contrary to the assertion of the Government of India, special powers conferred on the armed forces are not limited to the stage of making the arrest. Section 6 of the Act permits army officers to execute extrajudicially innocent people and civilians with impunity.
It is hard to imagine that a poor victim who lives under constant fear and intimidation in an armed conflict situation — where retaliation on the civilians are systematic and persistent — would have the material resources as well as necessary courage to seek prior permission from the Central Government to prosecute the perpetrators belonging to the armed forces.
Why does the Government of India wait for someone to seek permission before prosecuting the perpetrators when an independent judicial inquiry commission set up by the Government has found cognizable and prima-facie human rights abuses such as those in the Imphal massacre as stated in para 52 of this Alternate Report? The Government of India’s Central Bureau of Investigation (CBI) has established the disappearance of human rights activists like Jaswant Singh Khalra for investigating extrajudicial killings. The fear which keeps people from coming forward in these situation is obvious.
In a society where accountability exists, one would expect the Government to take action against the armed forces to uphold the rule of law, to increase the faith of the people in the system of governance, to strengthen the democratic institutions and to ensure that the armed forces distinguish between the alleged terrorists and civilians.
Rather than stating the fact that the Government of India provides permission for prosecution of guilty officers, the Government should inform the Human Rights Committee members as to what action it has taken against the Central Reserve Police Personnel responsible for the cold-blooded massacre in Imphal. It is equally important that the Government of India inform the Committee members as to the specific action it has taken to ensure that the punishment is not just another “departmental action” like a “red mark” in the service record of the guilty armed forces officer or a “transfer in other areas”; killing civilians in cold blood without any provocation demands much harsher and more appropriate penalties.
Article 6: Paras 57-62
Article 21 provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” A law empowering armed and police forces to deprive a person of his life or personal liberty on mere suspicion treads on the fundamental rights of Article 21 and Article 6. The courts have explained that a “procedure established by law” under Article 21 is a procedure which is reasonable, fair and just. But, the courts need to go further; they need to give a practical definition to the words “reasonable, fair and just.”
Section 4(a) of the Armed Forces Special Powers Act provides that any commissioned officer, warrant officer, non-commissioned office or any other person of equivalent rank in the Armed Forces is empowered to “fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of more than 5 or more persons or carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or, explosive substances” if he believes that it is necessary for maintenance of law and order. He may shoot to kill after giving such due warning as he may consider necessary.
These broadly defined provisions of the Armed Forces Special Powers Act give a “license to extrajudicially execute” innocent and suspected persons under the disguise of maintaining law and order. It violates Article 21 of the Indian Constitution and Article 6 of the ICCPR.
Brief history of death penalty in India
From the hanging of Nathuram Godse and Narayan Apte within 22 months of the assassination of Mahatma Gandhi to the controversial execution of Mr Kehar Singh on 6 January 1989 for allegedly conspiring in the murder of Mrs Indira Gandhi on 31 October 1984, the issue of death penalty has been one of the most disturbing features of the Indian judicial system.
Despite the fact that India is a party to the Universal Declaration of Human Rights and therefore is obliged to respect its provisions, India has yet to “accept” and “observe” the principles regarding capital punishment in their fullest sense. The General Assembly of the UN resolved in 1971 that “in order to fully guarantee the right to life, provided for in Article 3 of the Universal Declaration of Human Rights, the number of offenses for which capital punishment may be imposed should be progressively restricted,” stressing “desirability of abolishing this punishment in all countries.”
The death penalty can be applied under sections of the Armed Forces Special Powers Act described above and under various sections of the Indian Penal Code listed below:
Section 121. Waging or attempting to wage war or abetting waging of war against the Government of India — Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine.
Section 121-A.Conspiracy to commit offences punishable by Section 121. — Whoever within or without India conspires to commit any of the offences punishable by Section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.
Section 132.Abetment of mutiny, if mutiny is committed in consequence thereof — Whoever abets the committing of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 302.Punishment for murder — Whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.
Section 303.Punishment for murder by life convict — Whoever, being under sentence of life, commits murder, shall be punished with death.
Section 305.Abetment of suicide of child or insane person — If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.
Section 307.Attempt to murder — Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned.
Attempts by life convicts — When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
Section 396.Dacoity with murder — If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Recent statistical data:
At least six executions in 1992 and four executions in 1993 are reported to have been carried out in India.
Two executions were reported in 1995. Mr Auto, alias Gauri Shankar, was executed by hanging at the Salem Central Prison, Tamil Nadu on 27 April 1995. He was accused of the murders of six persons between 1987 and 1989 and of running brothels. The Chengalpattu Sessions Court sentenced him to death in May 1991. The High Court and Supreme Court confirmed the sentence. The President rejected Mr Shankar’s subsequent petition for mercy on 16 April 1994. Mr Eldin, Mr. Shankar’s brother-in-law and a co-accused, was hanged on 28 April 1995.
On 4 June 1996, a District and Sessions court gave a death sentence to 38-year-old Mr Ajay Kumar under section 302 of IPC for the murder of Ashok Kumar at Palika Bazar, Connaught Place, New Delhi on 6 October 1982. Mr Ashok Kumar, a shop owner in Palika Bazar, was shot dead and his brothers, Naval Kishore and Mukesh Kumar were seriously injured in shootout at shop number 33.
Mr Ajay Kumar was in judicial custody for the 14 years. Besides death sentence, the court levied a fine of Rs 35,000 on him for violations of various sections of IPC.
In Calcutta on 19 February 1996, the Fifth Additional Sessions Judge, Alipore, Mr Bimal Chandra Biswas, sentenced Sk Firoj, Sk Chandi Munna and Sk Bablu to death by hanging for the murder of a nine-year-old girl, on the night of 6 June 1993.
Methods of execution of death penalty:
The death penalty in India is generally carried out by hanging. The Supreme Court reiterated on 19 January 1995 that hanging was constitutionally valid, stating that it was a humane, painless, and quick method of execution. The procedure for awarding a capital punishment sentence stipulates that the body should hang for 30 minutes to ensure death. Only after the medical officer certifies that the person is dead can the body be brought down and the rope be removed. This procedure is outlined in the Punjab jail manual.
A writ petition challenging this provision has been filed before the Supreme Court. The writ petition suggests administering an overdose of tranquilizers or injecting the convicted prisoner with potassium cyanide as alternatives to hanging.
The division bench comprised of Justices Kuldeep Singh and B L Hansaria ruled that when the “jerk” was delivered by the executioner from the scaffold, the body should be released from the rope only after the medical officer has declared that the person is dead.
Upholding the constitutional validity of the execution of a death sentence by hanging, the bench said that the apex court in its earlier judgements had upheld hanging by rope provided under section 354(5) of the Criminal Procedure Code.
Recommendations:
The Government of India should ratify the Second Optional Protocol to the ICCPR to abolish death penalty.
The Government of India should amend the Armed Forces Special Powers Act to remove the provision empowering extrajudicial executions.
Article 7: Paras 63-68
Despite the existence of a plethora of legislation to stop torture, inhuman and degrading treatment, it will not be an exaggeration if India is termed as a State where torture, inhuman and degrading treatment have reached a perverse level. Incentives and encouragement for such treatment are covered up officially at both the national and international levels.
While Sections 25 and 26 of the Indian Evidence Act preclude the admission of confessions made to police officers, the Terrorist and Disruptive Activities (Prevention) Act permits exactly this type of evidence. This form of legal impunity allows and encourages police to subject suspects and innocent parties to abject torture and to reduce them to a pulp before they confess.
By referring to various other pieces of legislation, the Government of India seeks to paint a rosy picture contrary to reality. South Asia Human Rights Documentation Centre once again asserts that it is not the lack of legal mechanisms which leads to widespread torture, inhuman and degrading treatment by the Police but the lack of accountability in preserving the so-called “moral” calibre of the police force.
It is neither good governance nor democratic to paint a rosy picture to hide reality. It is in the interest of the largest democratic country of the world, in the interest of democratic institutions and good governance, that the Government of India presents the true picture about the intensity and pattern of torture in India to the Human Rights Committee. The Committee’s distinguished members could then suggest more easily measures to stop such an ugly practice.
The Annual Report 1995-96 of the National Human Rights Commission states “During the course of calendar year 1994, 65 deaths were reported in police custody and 34 in jail custody. In 1995, 105 such deaths were reported in police custody and 207 in jail custody. Between 1 January-31 March 1996, a further 47 deaths were reported in police custody and 112 deaths in jail custody” (Para 3.15 page 12).
It is sickening that law enforcement officials commit such extrajudicial killings almost every day. Human rights groups including the South Asia Human Rights Documentation Centre can provide hundreds of cases of torture, inhuman and degrading treatment to show the intensity and pattern. That there is condonation of torture. These cases of torture, inhuman and degrading treatment could stand any judicial scrutiny. For brevity of the report, SAHRDC provides the following examples.
The police picked up Mr Deendayal, aged 40, a poor balloon seller in Bhopal, Madhya Pradesh, on 19 January 1996 for an inquiry into a case in which a gas cylinder used to fill balloons burst, injuring five children. Unable to bear the torture, he allegedly consumed poison while in custody. The district administration ordered a magisterial inquiry into the matter, after the police made a vain attempt to hush up the case.
In a written statement issued to the press, the police claimed Deendayal was picked up at 12.30 am in a serious condition, was brought to the police station, and was admitted in hospital at 1.30 am, where he died.
Deendayal’s case was the 46th case of suspected custodial death in the state since 1992 and the fourth in the state capital of Madhya Pradesh.
Mr Prasad, an ex-convict, died allegedly due to torture in police custody at Neredpet on the outskirts of Hyderabad, Andhra Pradesh on 2 March 1996. A couple of days prior, the police had picked up Mr Prasad, aged 28, on charges relating to a theft case. During the interrogation at Saroornagar police station, the accused confessed to having committed theft. The police then took him to his room at Neredpet and asked him to identify the stolen goods. Even as the police were in the process of seizing the stolen property, Prasad collapsed and died.
The Central Bureau of Investigation (CBI) has indicted the Punjab Police officers for tattooing the words “jebkatri” (pick pockets) on the foreheads of four women a few years ago. In its reports submitted to the Punjab and Haryana High Court on 16 February 1996, the CBI indicted the then Superintendent of Police of Amritsar, Mr Sukhdev Singh Chhina.
The report, opened before a division bench comprising Mr Justice G S Singhvi and Mr Justice S S Sudhalkar, confirmed the women’s allegations that the words “jebkatri” were engraved on their foreheads by police officials, including Mr Narinder Singh Malhi, Assistant Sub inspector (ASI) and Mr Kamaljit Singh, ASI. The report confirmed that prior to their being taken into custody, there was no mark on the forehead of the women.
The police arrested ASI Ram Kumar under Section 342 and 323 of Indian Penal Code (IPC) on charge of beating up Anil Kumar of Loharo Mohana village in Haryana and causing injuries to him during the interrogation of a theft case. The ASI picked up Mr Anil Kumar in connection with a theft, and the police recovered some articles from his possession.
However, at night, the ASI under the influence of liquor gave the suspect a severe beating leading to injuries on his private parts. Anil Kumar who fell unconscious was admitted to the Civil Hospital from where he allegedly escaped. But he was reportedly again arrested at Panipat and brought back to the local civil hospital.
The People’s Union for Democratic Rights (PUDR) has claimed that in at least three police custody deaths, which were officially termed as “suicides,” were actually due to poisoning and that “foul play on part of police officials cannot be ruled out.” The PUDR demanded that a FIR ( First Information Report) be registered under abetment to suicide or causing death due to negligence “in every instance where the cause of a custodial death is recorded as suicide.” It also demanded that “adequate compensation be paid to the families of the victims in the concerned cases.”
Citing the cases, the PUDR said that a factory worker, Ram Gopal, aged 26, died in police custody in Sector 7, Faridabad, Haryana on 7 February 1996. The police claimed that he consumed acid in the police station toilet. However, following a Sub-Divisional Magistrate’s inquest, it was found that death occurred due to poison and that the deceased was tortured and humiliated while he was in police custody.
On 24 February 1996, the Inter State Bus Terminal Police in Delhi detained Ravinder, aged 21, a vegetable vendor and a resident of Modinagar in Uttar Pradesh, following a complaint by his neighbor, Amar Singh, that Ravinder had kidnapped his minor daughter. Amar Singh also allegedly told the police that an FIR was registered at Modinagar Police station against Ravinder.
The police is said to have claimed that soon after Amar left, Ravinder consumed poison which he was carrying in his bag. The PUDR said that a few hours later, when Ravinder died at the Bara Hindu Rao hospital, Amar returned to say that his daughter had come back. Moreover, the FIR at Modinagar, refered to by the police also does not exist and later on Ravinder’s relatives claimed that two days earlier, Ravinder had been also allegedly beaten up by Amar Singh and his relatives.
Ghulam Mohammed, a resident of Jammu and Kashmir employed as a fruit vendor at Azadpur mandi, allegedly consumed poison in the Police Post on 31 December 1995. Ghulam allegedly had eloped with a woman from his village, and the girl’s relatives caught Ghulam at the Capital and brought him to the police. However, no FIR was lodged.
The officer-in-charge and a constable of Jhinkpani police station in West Singhbhum, Bihar have been suspended for the death of 25-year-old youth Mr Kolai Sevayya in custody 19 February 1996.
Kolai Sevayya was arrested earlier in connection with a murder case.
The villagers alleged that the police tied Sevayya to a tree for for several hours and beat him up. He succumbed to his injuries at the police station.
Recommendations:
The Government of India should inform the Human Rights Committee about its decision to ratify the UN Convention Against Torture, Inhuman and other Degrading Treatment as recommended by the National Human Rights Commission.
The Government of India should seek technical assistance from the Centre for Human Rights to confront torture by the law enforcement officials.
The Government of India should inform the Human Rights Committee about the reasons for its refusal to extend an invitation to the UN Special Rapporteur on Torture.
Article 8: Paras 69-70
South Asia Human Rights Documentation Centre is baffled by the Government of India’s assertion that “There have been no changes in the legal framework on abolition of bonded and forced labour in India since the last report, since existing legislation has served to tackle the situation”.
UNICEF reports indicate that child labour and bonded labour are on the rise. Given the enormous number of bonded labourers, the National Human Rights Commission of India (NHRC) stated that their main priority in 1997 would be bonded labourers. Unless both the UNICEF and NHRC are incorrect, the increase in bonded labourers is clear testimony that the legal framework in India has failed to tackle the problem of contemporary forms of slavery. In a seminar on 25 July 1996, the NHRC stated that the Child Labour Prohibition Act was full of lacunae.
In its 10 December 1996 judgment, the Supreme Court of India ordered the abolition of child labour in India. In another judgement on 14 February 1997, the Supreme Court gave the state governments a two-week deadline to file detailed affidavits on the status of bonded labour. The Court emphasized that the Chief Secretaries would be personally liable if the order was not obeyed.
“We also get the impression that the requisite seriousness in the performance of the exercise which should have been there even without these court proceedings, is not to be found now”.- added the judges, referring to the government’s inaction in identifying and rehabilitating bonded labourers.
The Government of India’s assertion stands exposed. Nonetheless, the Government cites examples of ad-hoc initiatives it has taken to eradicate bonded labour problems. The efforts of the Government of India and other institutions to eradicate problems such as child labour through ad-hoc policies are at best “models” for specific types of assistance, but their programmes rarely address the structural and institutional shortcomings that perpetuate the problem. The failure of the Government of India to invest in the primary school system is a case in point. Article 45 in Part IV on the Directive Principles of the State Policy of the Constitution of India specifically envisages primary education for all under 14 years of age. Without reasonable quality, free, and accessible education for all, there is little hope of improving the status of the child. It is in this context that the NHRC recommended to move Article 45 from Part IV to Part III on the Fundamental Rights to make primary education an enforceable right.
SAHRDC is seriously concerned that the Government of India has restricted its discussion of contemporary forms of slavery to the issue of bonded labour. Thousands of children have been forced into prostitution. Countless girls from Nepal and other parts of India have been sold in the brothels in Mumbai (Bombay), Calcutta and Delhi. The Government of India, by strictly limiting the scope of its discussion to bonded labourers, has indicated that it has little concern for the thousands of girls trapped in the brothels across India. This uncaring attitude persists despite the fact that the NHRC has decided to form a core group to tackle the growing problem of child prostitution. SAHRDC is deeply concerned about the attitude of the Government of India towards the child prostitution problem in India.
Recommendations:
The Government of India delegates should inform the United Nations Human Rights Committee of the progress in implementing the NHRC’s recommendation to make primary education a judicially enforceable right.
The Government of India be asked to provide full information about the number of bonded labourers and child prostitutes in India. It should be encouraged to create a sub-regional legal arrangement with Nepal and Bangladesh for the arrest and prosecution of traffickers.
The Government of India should inform the Human Rights Committee of the NHRC’s recommendation to make necessary changes in the Child Labour Acts.
Article 9: Paras 74-82
The Law Commission of India has suggested that the Government of India should make necessary changes in the law to make the right to compensation enforceable. If the judiciary is to uphold this right, as the Government of India claims, SAHRDC can find no reason why the law should not be amended to ensure the right to compensation. If the law ensures that this compensation is paid by individual officers from their provident funds, gratuity and salaries rather than by the State, it could act as a deterrent to police brutality.
The Terrorist and Disruptive Activities Prevention Act:
The Government of India’s report from paras 75 to 82 discusses the Terrorist and Disruptive Activities (Prevention) Act (TADA) at length. Although the TADA has been allowed to lapse, it was sought to be reintroduced, with minor changes, as the Criminal Law Amendment Bill in 1995. This bill seeks to incorporate provisions of emergency legislation into the normal law of the land. The CLA Bill is still pending.
Suspects continue to be arrested under the lapsed TADA and all prosecutions launched under the lapsed TADA continue.
It is in this context that SAHRDC wishes to provide an analysis of the TADA, CLA and the urgent need to transfer all suspects still being held under the lapsed TADA to provisions available under the Criminal Procedure Code and the Indian Penal Code.
TADA in operation:
If one were are walking down a certain road, or taking a stroll along a railway track, or loitering near a certain building, one might have committed a crime under the TADA. One could be hauled up by the police and sent to jail for a period of six months to three years.
Under the Terrorist and Disruptive Activities (Prevention) Rules, 1986, made by the Central Government in exercise of the powers conferred by the Terrorist and Disruptive Activities (Prevention) Act, or TADA of 1985 : “No person shall, without the permission of the Central Government or the State Government enter or be on or in or pass over or loiter in the vicinity of any prohibited place”, (Rule 6). What is a prohibited place? According to the Rules, it is defined in Cl.8 of Sec.2 of the Official Secrets Act, 1923. The relevant clause of that Act describes, among other places : “… any land or water….which is for the time being declared by the Central Government by notification in the official Gazette to be a prohibited place for the purpose of this Act.”
If one was unlucky enough to miss the official gazette notification or fail to memorize the ever-growing list of such prohibited places, and inadvertently walk into their vicinity, let alone enter them, one could attract the provisions of TADA.
If one received a letter, or had a handbill thrust into one’s hands, or picked up a newspaper from a stall, one should be careful. These items could carry “information likely to assist terrorists or disruptionists.” Once you touch them, you can be jailed for a term of six months to seven years.
Under TADA, “acquisition, possession or publication, without lawful authority or excuse , of information likely to assist terrorist or disruptionist” is a crime (S.5(2)aii). The mere receipt of such information is enough evidence for arrest.
The government can intercept and interrupt your conversation if you are talking to a friend (TADA Sec.5(2)i) on the telephone, under suspicion of facilitation of “the commission of terrorist acts”.
We pass and receive “information” by speaking and writing. What is the definition of “information likely to assist the terrorist and disruptionists?”
The TADA Rules, 1986 are quite explicit about the nature of such information. It includes “any information which is intended or is likely –
(i) to bring into hatred or contempt, or to excite disaffection towards the Government established by law in India.
(ii) to bring into hatred or contempt, or excite disaffection towards the Armed Forces of the Union or the police force by whatever name called of a State or any public servant or class of public servants.
(iii) to promote feelings of enmity or hatred or otherwise affect the harmony between different classes of persons in India,” (19.1.e.i,ii,iii)
One instance illustrating the danger inherent in this bill occurred in Ahmedabad in August 1987. Workers of Reliance Industries Limited went on strike to demand the implementation of Industrial Tribunal Award and an increase in wages. Six leaders of their struggle committee were arrested under TADA, and were refused bail by the specially designated court set up under the Act.
Under the TADA Rules: “No person shall, without lawful authority, make, print, publish, or distribute any document containing or spread by any other means whatsoever, any matter derived from terrorists or disruptionists, their sympathizers or associates, or sources sponsored or utilized by or otherwise connected with terrorists, disruptionists, or their associates or sympathizers.”(20.1)
Publication of “any matter derived from terrorist or…” through interviews or otherwise, does not necessarily indicate that the reporter or publisher of the newspaper sympathizes with the views of the interviewee. Clearly, our government thinks otherwise, and bundles together the interviewer and the interviewee as criminals. If you publish “any matter derived from terrorists or disruptionists” or even “their sympathizers or associates”, you can be punished with “imprisonment for a term which may extend to five years and shall also be liable to fine.” (20.3)
If the contents of a leaflet are used for a news report (a common practice in journalism), this may fall under the TADA. The Act holds that if “any leaflet distributed by the terrorist and disruptionists, by any means whatsoever, is at any subsequent time reproduced, whether in the same or a different form and whether with or without comments in any document”, the designated court can take action (20.2.ii)
Patterns of abuse
Common criticisms of the Act are that bail is rarely granted under it, that TADA is used for preventive detention, that many charges are trumped up and that torture is encouraged by the legislation, that in Punjab particularly it is only used against the non-Hindu communities, and that TADA is used mainly for political purposes.
The pattern of abuse of the Act varies from state to state. In Bihar, cases are registered predominantly against the landless poor, in Andhra Pradesh the cases are largely against alleged Naxalites, and there seems no doubt that in Punjab the vast majority of detenues are Sikhs.
Arrests in Punjab, Kashmir, Delhi, Rajasthan, Haryana, Gujarat, Maharashtra, Tamil Nadu, Assam, Andhra Pradesh and other states were increasingly made under the provisions of the TADA instead of the normal provisions of the Code of Criminal Procedure (CrPC) or the Indian Penal Code (IPC). In fact, in August 1990, the Punjab Government brought specific guidelines directing the district authorities not to bring cases under sections 302, 307, 392 and 397 of the Indian Penal Code and various sections of the Arms Act under the ambit of TADA.
Before a further discussion of individual accounts of the operation of the Act, attention should be drawn to the patterns found in the limited official figures.
The Act until recently was in force in 23 of the 25 states and two out of nine union territories.
The real question is, why was the jurisdiction of the Act extended across the majority of the country?
A charitable reading of this extension might be that the occasional terrorist may be operating as part of a national network in any part of the country and thus each state should have the legal wherewithal to stop these activities. Unfortunately, no such explanation can be upheld if one looks at the distribution of arrests under the Act. The dubious distinction of recording the largest number of arrests under this legislation belonged not to Punjab but to Gujarat.
This pattern of use in “non-terrorist affected areas” calls into question the government’s intentions regarding the use of the Act. It also casts doubt upon the government’s good faith in persuading Parliament and the people that the suspension of certain fundamental rights could justified in the name of the struggle against armed opposition elements.
If its original justification for the act remains, the government should demonstrate that this is anti-terrorist legislation and not anti-dissent legislation. The government could accomplish this by restricting the operation of the act to certain states and making very stringent guidelines for when a state can declare itself a notified area. The TADA legislation exemplified no such intention – there were no restrictions on the invocation of provisions of TADA. Thus the fundamental rights of ordinary citizens were suspended with alarming ease.
If any doubt remains as to what type of suspects constitute the majority of those arrested under the provisions of TADA, it may be resolved by the following figures:
A total number of 67,507 were detained, out of which 19,263 were in the state of Gujarat alone. Speaking to the Press Trust of India on 28 August 1994, Mr Rajesh Pilot, then Minister for Internal Security, said out of the total 67,509 people detained under the Act, only 8,000 cases had been tried. That means that 59,509 people had been detained and no charge-sheet had been brought against them. The rate of conviction is reportedly less than 0.05 percent.
If the government did intend to obtain convictions under the Act, then the legislation manifestly failed. If it has failed, why did it remain on the statute books until 1995? Why is the government so interested in maintaining the Act or equivalent legislation in the face of so much national and international opposition?
We can only conclude from the above that the Administration finds that the Act satisfies other requirements than those set out in the objects and reasons. Possible government agendas for the real use of TADA or such as those proposed under the Criminal Law Amendment bill are multiple:
Preventive detention under the Act may take various forms. The first and most obvious is that under TADA the suspect can be remanded to custody without charge for 180 days. Bail under the TADA is more difficult to obtain than under the penal code.
It was common for people to be held on the strength of an FIR for a year. If a charge sheet is filed, then it is almost impossible for the accused to be released on bail. Thus the accused, though in most cases acquitted, is preemptively punished by incarceration, normally for a period of 2-3 years.
The real ‘offence’ might be opposition to a local politician or to a powerful local landowner or businessman. The evil stems partly from corruption and bribery of course – the politician or businessman has to have the cooperation of the police in this exercise. However, it feeds on the broad definitions of offences under the Act and the lack of judicial checks and safeguards on its use. One example of the lack of safeguards is that charge sheets earlier did not have to be prepared until a year after arrest, and the state needn’t have the inconvenience of naming it’s witnesses when it filed the FIR.
Religious Discrimination under TADA
There is no doubt that in some parts of India the Act was used almost exclusively against non-Hindus in a discriminatory way. The application of the legislation in some parts of the country amounts to institutionalized discrimination and lays the government open to allegations of provoking sectarian tension.
According to the Rajasthan Home Minister Digvijay Singh, 228 people were detained under TADA after the communal violence in the state. While 96 were Sikhs arrested from Ganganagar and Bikaner districts bordering the Punjab, of the remaining, 119 were Muslims and only 13 Hindus. Of the 13 Hindus, it is alleged by civil liberties groups (Abdus Sattar, advocate and convener of the minority cell of the Rajasthan PCC / TADA Relief Committee) all but three had been released.
Sattar also points out that originally more than thirteen Hindus were arrested: in 1990, in the wake of the communal riots in Beawar, 60 Hindus were detained under TADA. However the TADA charge against them was subsequently held to be incorrect and withdrawn. Instead the case was referred for speedy disposal to the Rajasthan Advocate General, and they were all released in November 1990. When Muslim leaders appealed to the state government to withdraw the TADA charge in the case of the 119 Muslims, the government reportedly declared that they were helpless as charges had been framed against them and it was now outside the state government’s power.
It must be pointed out at this juncture that 178 of those arrested had not had any firearms or explosives on their person, and that the detainees included 3 boys under 16 years and some eighty year old men.
In all the riots in Rajasthan, Muslims suffered the largest number of deaths and destruction of property, yet it was Muslims who the authorities arrested. In the light of all the above, the Government of India’s assertion that the arrests were to curb the activities of foreign agents requires some substantiation.
Moreover, the detainees were arrested, according to state government sources, in 1989 while the official notification invoking TADA was issued by the Rajasthan Government only on 6 March 1990. Home Ministry sources say that under the provisions of the Act, it could only be invoked by the state government after issuing an official notification.
According to the National Commission for Minorities, the total number of persons arrested under TADA in Rajasthan as of 1 September 1994 was 432. Of those arrested, 409 persons belonged to minority groups.
Reviewing the Supreme Court’s judgement on the Constitutional Validity of TADA (Kartar Singh Vs State of Punjab)
The Government of India cites the Supreme Court judgement upholding constitutional validity of the TADA.
The Supreme Court’s decision to uphold TADA was disappointing. Reading the majority judgement, one could not help recall what the great American Supreme Court Justice, Judge Frankfurter said,” Put not your trust in judges to save your liberties.”
TADA is violative of the Constitution of India. It is in the spirit of Art 51 that TADA must be reviewed. TADA is unconstitutional in its arbitrariness and its removal of safeguards against the conviction of the innocent. It is an assault on two fundamental principles of the Constitution — the equality and dignity of citizens of India.
Art 13 deals with laws which are inconsistent with or in derogation of fundamental rights. If TADA breaches fundamental rights, those provisions which violate fundamental rights are void under this Article.
Art 14 states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” TADA violates Article 14 by setting up a separate procedure and trial in a special court for those accused under the Act. It has been held that the Article is not above the recognition of exceptions and qualifications on certain grounds.
Courts have upheld legislation containing apparently discriminatory provisions where the discrimination has a reasonable basis. “Reasonable” means that the classification must be rational and not arbitrary.
A challenge to TADA could argue that when an offence falls under the ambit of the Act, it could equally be charged under a different Act, since adequate provisions already existed to address all of the offenses designated under TADA. The choice of statute used for prosecution would radically affect the procedure under which the suspect is prosecuted.
The government may argue that it has implemented safeguards by declaring that TADA should only be used in serious cases. Firstly, this is not a sufficient guideline. The police should not be the judge of what is and is not a “serious” offence. The guideline is too arbitrary. It also provides insufficient protection to the accused given the enormity of the difference in treatment s/he will receive under TADA and under normal criminal procedure.
Secondly, case law under Art 13 declares that state action must be adjudged in light of its operation on the rights of the individual and groups of individuals in all its dimensions. (RC Cooper v. Union of India 1970). In Bennet Coleman Co. v. Union of India, Justice Ray speaking for the majority, reiterated that the tests of “pith and substance of the subject matter” and of “direct object and of incidental effect of the legislation” were irrelevant to the question of infringement of fundamental rights, and the true test was the “direct and inevitable consequence or effect” of the impugned state action on a particular fundamental right. In Maneka Gandhi v. Union of India, 1970, the Supreme Court ruled that if the effect of a state action is direct and inevitable then a fortiori it must be presumed to have intended to take the action.
The definitions of offence are so broad under TADA, and the offenses so clearly overlap with ordinary criminal procedure that it is a direct and inevitable consequence of the Act that Art 14 will be infringed. This infringement is caused by the arbitrary selection of those who are to be tried under TADA and those who will be tried under the ordinary criminal code with its attendant protection.
There is no nexus of terrorist activities with the offenses under the Act. For example, the possession of arms without a license could be an offence under TADA. If a weapon license expired within a notified area, the holder of the weapon could be prosecuted immediately under S(5) of TADA. The holder could be imprisoned for the minimum sentence of 5 years for an administrative error.
The lack of guidelines in other provisions of the Act make these void for arbitrariness and inequality before the law. These provisions are as follows:
– S(8), which deals with the forfeiture of property of the accused. This gives an unfettered and thus unconstitutional discretion to the judiciary as to whether they should confiscate property and how much property they can confiscate.
-S 16(1), which requires all proceedings before a designated court to be conducted in camera, unless the Public Prosecutor applies for the proceedings to be held in open court. The section does not contain any guidelines as to how the discretion of the public prosecutor should be exercised.
-S20(4) entrusts the investigation Officer with unguided and arbitrary powers to seek remand in one case from an executive magistrate and in another case from a judicial magistrate, and thus can discriminate between one accused and another. (The distinction can be very significant as the executive magistrate is more open to pressures from other parts of the executive than a judicial magistrate and indeed may be a police officer himself/herself.)
– S3(4) makes it an offence to harbour or conceal or attempt to harbour or conceal any terrorist. However, the Act fails to say who has power to designate someone a terrorist for the purposes of this section. Thus, people are being prosecuted under this section when the person they are harbouring has not been convicted as a terrorist. There is no mens rea requirement in the section, that is to say there is no requirement of knowledge that the person was involved in terrorist activities.
Terrorism is indeed a great evil where it exists. Once more we must look at where the Act is in force and who is arrested under its provisions. In regard to the non-terrorist afflicted states, the evil sought to be remedied does not justify restrictions on fundamental rights.
Lastly, the court must consider the prevailing conditions at the time. The government could cite the increase in terrorist attacks as justification for TADA. Again a distinction must be drawn between the situation prevailing in Kashmir and that in Gujarat. The prevailing conditions in the latter and in most of the other states in which the Act is in operation do not justify the restriction of fundamental rights.
Moreover, this argument can be turned on its head : The prevailing conditions at the time include the fact that the Act has manifestly failed to control terrorism – the increase in terrorism can again be cited. There is even a case to be made that it has promoted tension. In this light the Act cannot be justified.
Alternatively, this argument might be introduced as a development of the law, rather than as part of the prevailing conditions argument. Another criterion to be considered in assessing reasonableness should be made explicit – the effectiveness of the law. It is a matter of common sense and within a reading of the spirit of Article 19 that a restriction of a fundamental right for a particular purpose will not be reasonable unless that purpose is to some extent at least, achieved. Since TADA has manifestly failed to fulfil its objects in practice, any discussion as to the balance struck on paper between the rights of the individual and those of society will be empty verbiage, and a travesty of the spirit and intention of the Indian Constitution.
Aftermath of repeal:
TADA was technically alive until midnight on May 22, 1995. The lapse of the Act shall not affect the validity of any investigation, legal proceedings initiated earlier under the Act. Any investigation or legal proceedings instituted, continued or enforced before May 22, 1995 would be still legal and valid. The investigation, trial, conviction or acquittal would also be treated as justified.
The designated courts established under TADA will function until all pending cases have been heard. The cases instituted under the Act, even on the date of the expiry of the Act, will be tried by the designated courts, if not barred by the new Act. According to sources, only 12% of cases brought under TADA have been tried.
India’s Minister of State for Home Affairs told the upper house of Indian Parliament, Rajya Sabha on 18 December 1996 that 1986 persons continue to be detained under the TADA. Of these, maximum (482) detenues were in Jammu & Kashmir followed by Maharashtra (272), Delhi (214) and Punjab (211). The Government also introduced Criminal Law Amendment Bill in 1995 which has been pending before the Parliament.
Criminal Law Amendment Bill, 1995: In defence of India?
The present Criminal Law Amendment Bill, 1995 pending before the Parliament is a new guise for the same old TADA Act. The greatest danger is that temporary legislation like TADA will become a permanent feature of the Indian criminal justice system. This is nothing but imposing undeclared emergency through the back door. The Government of India stated in objects and reasons for enacting this new law that “They had taken note of the aid and assistance from across the borders received by various terrorist groups in India. Terrorism which was initially confined to the states of Punjab, Jammu and Kashmir, North East has spread to several other parts of the country. The acquisition by terrorists groups of highly sophisticated weaponry, remote control devices, rocket launchers and professional training have added a new dimension to the problem. Therefore the Government of India brought new legislation for the prevention of and for coping with terrorist and disruptive activities.” This is why Parliament felt the need for new legislation in defence of India and created the new Act.
The CLA Bill deleted the following provisions of the TADA:
1.Section 5 of the TADA on possession of unauthorized arms in a specified area was deleted in order to save the noted film actor Sanjay Dutt who had been caught in a vice-like grip under this provision.
2.Section 7 of the TADA (regarding the responsibility of the Central Government and the State Governments to issue notice in the official gazette when invoking the Act) was deleted. This made TADA, intended to be temporary legislation, a permanent addition to criminal law in India.
3.In Section 8(3) of TADA sub clauses (a),(b), and (c) were deleted. These were the provision for subpoenas for those who had absconded. The designated court’s power to attach property belonging to the proclaimed offender under TADA was entrusted to the Superintendent of Police. Thus, what was once judicial scrutiny was entrusted to the police. This has the potential to lead to widespread abuse. Under TADA, within six months of the attachment, any person whose property has been attached can voluntarily appear before the court. If she proves to the satisfaction of the court that she did not abscond or conceal herself and that she did not receive notice within the delineated time, then the property or the net proceeds of the sale will be delivered to her. This provision was deleted in the new Act.
4.Section 15, regarding confession made to police officers to be taken into consideration had been deleted.
5.The confession made by the co-accused under section 21 (c) of TADA has been deleted.
6.Sec.22 of TADA regarding the identification of the accused by witnesses on the basis of photographic evidence was removed.
Except for the deletion of these six provisions, the Criminal Law Amendment Bill was retained as is. The proposed CLA Bill is much more draconian than the old Act in many ways.
Draconian Features of the proposed new Act:
1.Under TADA, the government had to issue notice in the official gazette to declare an area to be terrorist affected. The new bill has removed this provision, which could allow for the whole of India to be declared and notified as a terrorist affected area.
2.The definitions of terrorist and disruptive activities under section 3 and 4 have been retained verbatim. The proposed new Act does not clearly and precisely define “terrorist” and “disruptive” activities. The potential for abuse is ripe in these two sections of the Act.
3. A new category of offences was created by adding Sub sections 5 and 6 in Section 3. This was done in order to suppress all types of dissent. Members of a `terrorist gang` or `terrorist organization` involved in a terrorist act will be punished with a minimum sentence of five years and a maximum sentence of life imprisonment. Another new section (Subsection 6) states that ` whoever holds any property derived or obtained from the commission of any terrorist act or acquired through terrorist funds shall be punishable with minimum of five years and may extend to life imprisonment. These two newly added sub sections are drafted so vaguely and loosely that anyone could be detained for a term ranging from five years to life imprisonment.
4.The newly-added Section 6 concerns the attachment of property obtained from the commission of terrorist acts or proceeds of terrorism. This attachment must be undertaken with the approval of the Superintendent of Police. The investigating officer has to inform the Special Court of the attachment within forty-eight hours. In this way, the rightfully judicial function of prior permission was entrusted to the Superintendent of Police.
5.A new Sub Section(1) was added to Section 14, allowing the Special Court to decide whether a trial is open or incamera. All the designated courts constituted under TADA are deemed to be Special Courts.
6.The first provision of Section 16 of TADA was modified, denying the Public Prosecutor’s power to apply in any proceedings in open court and under the new Act this power had been deleted making all the court proceedings as in – camera if the Special court desires.
7.Section 19 of TADA was modified, giving the High Court jurisdiction over judgements and sentences based on fact and on law but denying its inherent power under Art.226 to set bail. Section 17 of the new act mentions that the High Court cannot hear an appeal from an interlocutory order of a Special Court. The Supreme Court has ruled that orders on bail application are interlocutory orders. This means that the High Court has been barred from granting bail. The new Subsection 2 of Section 17 states that a bench of two judges from the High Court will hear all appeals from a judgement or sentence of the Special Court. This made bail much more stringent. The inherent powers of the High Court regarding bail have been taken away, leaving only the Supreme Court empowered to hear appeals on bail.
8.Under Section 18 of the new Act, a minimum period of detention of up to 90 days was set. This period can be extended to 180 days on receipt of a report from the Public Prosecutor indicating specific reasons for detention of the accused beyond 90 days.
9.Under Section 19 of the Criminal Law Amendment Act 1995, the recording of the commission of an offence is to be entrusted to the District Superintendent of Police. The Court shall recognize of an offence only with the sanction of Inspector General of Police or Commissioner of Police. Under Section 20 of the new Act, investigation of the cases is entrusted to the Deputy Superintendent of Police or Assistant Commissioner of Police in case of metropolitan area. This provision was included in the 1993 amendment of TADA. This provision is even more repressive and arbitrary since it dispenses with the supervisory jurisdiction hitherto exercised by the Government.
10.Subsection 2 was added to Section 24 of the new Act, providing punishment of up to one year for any police officer who corruptly or maliciously proceeds against any person. Even though such provision exists, very few will dare complain about misuse of the Act by the police. In fact, the witnesses against police atrocities are very afraid to file a complaint. A provision for anonymity should be made, as mentioned under section 14 of the new Act.
Two conflicting provisions were kept in section 24. The first part of section 24 protects acts done in good faith or purported to be done in pursuance of the Act and bars any type of punishment. However, the second part of the same section provides punishment for corruptly or maliciously proceeding against any person under the Act. A claim on this basis would be extremely difficult to prove. This is not a new section as a provision for malicious prosecution exists in the Indian Penal Code. Moreover, it is almost impossible for an ordinary person to prove that a police officer has misused the provisions of the Act.
Recommendations:
The Government of India should repeal the Armed Forces Special Powers Act.
Criminal cases should be filed against law enforcement officials responsible for extrajudicial killings.
All cases of armed forces personnel charged with human rights violations should be heard by civilian courts rather than military courts.
The Criminal Law Amendment Bill should be withdrawn.
Article 10
Mistreatment of prisoners and deaths in prisons due to unhygienic conditions are severe and well-publicized problems in India.
In its 1993-94 report, the NHRC expressed deep concern over-crowding, lack of sanitation, poor medical facilities, and inadequate nutrition in prisons in the country. It also expressed dismay at reports of delay in disposal of cases and mismanagement in the administration of prisons.
Among other things, the NHRC report states that:
“In the course of the year under review, the Commission decided to visit prisons, wherever possible. Accordingly, its Members inspected institutions in Delhi, Hyderabad, Patna, Indore, Vellore and Imphal. In addition, the Commission visited a detention centre and an interrogation centre in Srinagar. In each instance, the Commission gave its views and recommendations in regard to the institutions visited directly to the competent State Governments.
The situation in the prisons visited was varied and complex. Many, such as Tihar Jail in Delhi were over-crowded; yet others, like the open jail in Hyderabad, were under utilized. Often, within a single State, conditions varied from one jail to another in this respect, pointing to the need for a more rational State-wide use of facilities. The Commission saw a few jails which were notably clean and where the diet was reasonable, such as the Central Jail in Vellore. Unfortunately, it saw many others which are squalid, such as the newly constructed Central Jail in Patna. In yet others, diet was inferior, the management was denounced by the inmates as brutal and corrupt. In some, care was being taken to separate juveniles from others, petty offenders from hardened criminals. In others, no such care was being taken and the atmosphere appeared to nurture violence and criminality. In a few, major efforts were being made to reform conditions, to generate employment in a worthwhile and remunerative way, to encourage education and restore dignity. In others, callousness prevailed, prisoners were seen in shackles, mentally disturbed inmates – regardless of whether they were criminal or otherwise – were incarcerated with others, with no real effort being made to rise above the very minimum required for the meanest survival. Where prisoners worked, their remuneration was often a pittance, offering scant hope of savings being generated for future rehabilitation in society. By and large, the positive experiences were the exceptions rather then the rule, dependant more upon the energy and commitment of individual officials rather then upon the capacity of the system to function appropriately on its own.
The inescapable conclusion drawn by the Commission is that the prison system is seriously in need of reform, nation-wide. At present it is mired in attitudes and practices that are antiquated at best, but that often border on the intolerable. Reliance on the century old Indian Prison Act is symptomatic of the lack of vision or progress in this area.
Once again, it is not the lack of ideas that is at the core of the problem, but the apathy and lack of priority accorded to prison conditions and the rights of prisoners and undertrials that lie at the root of the difficulties. The Commission has accordingly undertaken a study of certain key reports to examine the best ways in which their recommendations can, wherever necessary, be re-activated. These include the Report of the All-India Jail Manual Committee 1957-59, the report of the All-Indian Committee on Jail Reforms 1980-83 chaired by Justice A N Mulla, the Report of the National Expert Committee on Women Prisoners of 1987 chaired by Justice V R Krishna Iyer, and the Report of the Group of Officers on Prison Administration chaired by Mr R K Kapur in 1987. In addition, the Commission remains most mindful of the need for the country to abide by the United Nation Standard Minimum Rules for the Treatment of Prisoners of 1957″.
“The latter issue has been of special concern to the Commission as it has noticed, during its inspections, that this distressing practice is by no means rare: prisoners languish in jail beyond the dates for their release, often because of the negligence of the authorities and sometimes because of their mala fides. In other instances, prisoners are not released despite bail orders from the courts, or re-arrested on other charges immediately after being released.” (NHRC Annual Report 1994-1995).
Article 11
Para 87: No comments
Article 12
Para 88: No comments
Article 13
Para 89-90: No comments.
Para 91: The non-ratification of the 1951 Convention and 1967 Protocol by the Government of India has subjected refugees to political arbitrariness. The grant of “refugees status” is dependent on the vagaries of India’s political interests in a particular situation. There is little legal framework under Indian law for refugee status determination. The Government of India, in the main, has dealt with the refugees on an adhoc basis. This has led to the use of refugees as pawns in regional geo-politics.
With several groups, repatriation has taken place without individual determination of desire to return.
The UNHCR and other international agencies have been denied access as repatriation takes place after bilateral discussions between India and the respective countries of origin. Bilateral discussions involve geo-political and economic trade offs, which are not always in the interest of the refugees.
Of late, there has been involuntary repatriation of the Jumma refugees from the Chittagong Hill Tracts of Bangladesh, the Chin refugees from Burma, and the Sri Lankan Tamil refugees.
Forcible Repatriation of the Jumma Refugees:
On 22 August 1996, on the basis of a petition filed by SAHRDC, the NHRC held that the Jumma refugees from the Chittagong Hill Tracts of Bangladesh were involuntarily repatriated in 1994. This was because camp conditions were made untenable by officials of the Government of India. On 29 October 1996, the NHRC further directed the Government of India to suggest the involvement of the UNHCR in future repatriation discussions with the Government of Bangladesh.
This order was given after the NHRC Team visited the Jumma refugee camps in the State of Tripura. The team reported on “the shortage of water, inadequacy of accommodation and woefully inadequate medical facilities.” The report also pointed out that rations were meagre and their supply was often suspended. During the visit the team found that many of the tube wells were out of order and that the inmates of the camps were bringing water from far-off places. The camps were also unclean and bore signs of neglect. The report noted that refugee children were suffering from malnutrition, water-borne diseases and malaria, while there was no visible effort to improve their living conditions.” On 13 August 1996, the NHRC stated that the investigation team “attributed the problems faced by the refugees to the callousness and hostility of the officials towards the refugees, accumulated over the years, as they are not keen to go back”. The SAHRDC has with regret, good reason to believe that there has been little change in the attitude of the officials in Tripura.
SAHRDC filed a complaint with the National Human Rights Commission of India on 10 March 1994. After two years of repeated requests, the National Human Rights Commission visited the Jumma refugee camps in Indian State of Tripura in May 1996.
Over 55,000 Jumma refugees from the Chittagong Hill Tracts of Bangladesh fled to the North-Eastern Indian state of Tripura after a series of massacres by the Bangladesh security forces and plainsmen settlers in 1986. The recurrence of massacres brought more Jumma refugees in 1989 and 1992. The Government of India refused to register the Jumma refugees who fled after the Logang massacre of 10 April 1992, denying even basic humanitarian assistance to the hapless refugees.
Several rounds of discussions have been held between the Governments of India and Bangladesh regarding repatriation of the Jumma refugees. In 1992, the Government of India adopted a “non-violent policy” to put pressure on the Jumma refugees by making the camp conditions inhospitable to compel the refugees to go back or starve to death. In 1994, the Government of India initiated a repatriation process reluctantly agreed to by the Jumma refugee leadership. The refugees were under “subtle duress” exerted by the then Governor of Tripura, Mr Romesh Bhandari.
An estimated 5,123 individual Jumma refugees were made to agree under duress to return in the first phase of repatriation in February and July 1994. The 13 Point Charter of Demands of the Jumma refugees were set aside and the Bangladesh Government provided a 16 Point Rehabilitation Package to convince the refugees of its good faith. The United Nations High Commissioner for Refugees and other international agencies were not permitted to monitor the repatriation process.
South Asia Human Rights Documentation Centre(SAHRDC) visited the Jumma refugee camps ( See “No Secure Refuge”, SAHRDC/7413/1/94). SAHRDC found that the Jumma refugees were being repatriated “under duress”.
Despite the findings of the National Human Rights Commission, the Government of India forcibly repatriated another batch of 6,000 Jumma refugees in March-April 1997. In a report submitted by the Jumma Refugees Welfare Association after their visit to the Chittagong Hill Tracts in May 1997, the Jumma refugee leaders stated that more than 60% of the returnee refugees could not go back to their lands, as they feared reprisals by the Bengali settlers.
There have been instances of forcible repatriation of the Chin refugees from Indian State of Mizoram.
In December 1995, five SLORC soldiers defected to the Chin National Front (CNF) and then six more defected in July 1996. They came from LIG 268 and 269, entered through the Burma-Mizoram border, and stayed in the triangle area of Burma-India-Bangladesh for three weeks.
The defectors were accompanied to Delhi, where the first group obtained UNHCR refugee status. The second group had been interviewed by the UNHCR and the decisions were still pending. Because of the Indian Government’s absence of a clear refugee policy, the asylum seekers were asked to move to a safer place. An Indian intelligence agent went to the New Delhi office of the NCGUB (National Coalition Government of the Union of Burma, the government in exile) and suggested that the eleven deserters be brought back to Mizoram where they could be protected in a camp. Mr Ko Nine, President of Democratic Students of Burma and a student activist, accompanied them back to the North East. No one knew their whereabouts after they left Delhi with the Indian intelligence agent.
On 1 August 1996 in a letter to Mr I K Gujral, then Minister of External Affairs from Dr Tint Swe, MP, NCGUB, alerted the Indian Government to the possible deportation. In a letter on 29 October 1996 to then Prime Minister Mr H D Deve Gowda and Mr I K Gujral, Minister of External Affairs, Dr Tint Swe of the NCGUB stated that the group was picked up by an Indian helicopter and handed over to Burmese SLORC Army at the North East Command by the end of August 1996.”
The story was reported by Mr Subir Bhaumik, Correspondent of British Boradcasting Corporation (BBC) on 3 October 1997, who quoted an Indian army spokesperson
The UNHCR could do little to protect these refugees as the Government of India does not allow access to the UNHCR in the North East. The lack of protection for UNHCR-recognized refugees also directly calls into question UNHCR’s rationale for maintaining a presence in the country at all.
Impending Refoulment of Ronthong Kunley Dorji
Mr Rongthong Kunley Dorji, a Bhutanese national was arrested by New Delhi Police at the office of the United Front for Democracy (UFD) Bhutan at Gautam Nagar, New Delhi on 18 April 1997. He has been staying in Nepal as a political refugee. He was arrested after the Indian authorities received an extradition request from the Bhutanese authorities. Earlier, Minister of Home Affairs of Bhutan had stated that Rongthong Kunley Dorji “had violated the laws of the land and should appear before a court of law to prove his innocence.” Mr Dorji was accused were failure to repay loans and “anti-national” activities under the National Security Act.
The Delhi High Court has indicated that the extradition Magistrate will consider Rongthong’s bail application without prejudice with respect to the earlier observation that was given to the application in the lower court. The Court also decided that Rongthong should be medically examined at the Institute of Medical Science with a view to being admitted there for treatment. His current ailments include blood pressure related problems and he is also passing blood. He is not getting proper medical treatment in jail. However, although his health problems predated his detention, his health has certainly deteriorated since. Till 14 July 1997, Mr Dorji was not medically examined.
Article 14 (Paras 92-94)
Para 94 (a) The Parliament has the sole authority to enact laws. However, there is ample proof that Parliament alone does not provide an adequate guarantee against unfair or unconstitutional laws. For example, the Parliament of India enacted the Armed Forces Special Powers Act, which empowers summary executions with impunity. The Protection of Minorities Act gives the State Governments the authority to dismiss their Minorities Commisions on a whim, if the abolition of the State Minorities Commission by the right-wing Hindu fundamentalist Government in Maharashtra is any indication.
(b) Section 16 of the TADA provides for an in camera trial, and permits the identities of the witnesses to be kept secret, thereby ensuring that the accused cannot have an effective cross-examination. Without an opportunity for effective cross-examination, no trial can be considered fair.
Trials under the TADA take place before special courts which may sit at any place, including in prisons, and the Act obliges all Special Courts to conduct trials in camera. This enables the prosecution to conceal the identity of the witnesses produced against the person accused of an offence under the Act. The justification for this procedure is that witnesses will be afraid to testify against an accused terrorist if his/her identity is known. If this is a legitimate concern, defence witnesses who harbor similar fears about testifying against the police should receive analogous protections. These protections are not available.
A number of trials have been held under the provisions of the TADA in several jails inside and outside Punjab, including in New Delhi’s Tihar Jail. Lawyers who had defended people tried under the TADA have stated that the public was often denied attendance at such trials, that witnesses felt over-awed and inhibited from giving evidence freely against the police in the intimidating atmosphere inside a prison and that few lawyers were therefore prepared to defend people standing trial inside a jail.
(c) The provision regarding admissibility of confessions made by a person before a police officer provides an incentive for police to obtain “confessions” under torture: presumably, this is the reason why Sections 25 & 26 of the Indian Evidence Act normally exclude all confessions made in police custody, unless they are made in the presence of a magistrate. Section 15 of the TADA could also encourage the police to resort to recording false statements. There are several cases in which witnesses were forced to sign their name on a blank piece of paper, enabling the police to fill in their own version of events. This practice was referred to by the Judge of the Designated Court, Chandigarh, in a case brought under the TADA, on 17 November 1987:
“…it appears that the recovery of these firearms was not affected in the manner alleged by these witnesses…the attestation of the witnesses figures right at the bottom of this paper which clearly shows that the attestation was obtained on the foot of this paper when it was blank and that is why in order to fill up the gap between the attestation of the witnesses the spacing of lines inter se had become wider towards the fag end of this document.”
Although Indian Law normally permits a two stage appeal (first to the High Court and then to the Supreme Court), appeal against judgement by a Designated Court trying cases under the TADA lies only with the Supreme Court, and has to be filed within 30 days instead of the usual 60 days. Lawyers familiar with these appeals have asserted that most fail to meet this deadline because of the time involved in first finding a qualified lawyer and then raising the money to pay him.
Many people convicted under the provisions of the TADA are poor and are convicted by courts sitting far away from Delhi: even if they can identify a Supreme Court lawyer willing to make the appeal, they can rarely afford the high fees and make arrangements within the 30 days limit. Appeals are simply added to the long list of cases already pending. Lawyers have stated that unless a special application is made to the Supreme Court, an appeal will not be heard for several years. The result has been that very few appeals against judgements handed down by Designated Courts hearing cases under the TADA procedures have come up for final decision before the Supreme Court.
There should have been sufficient time and adequate facilities to appeal against judgements handed down by Designated Courts acting under the TADA procedures, not only because other important legal safeguards have already been suspended under the Act’s provisions, but also because the courts are empowered to impose the death penalty. This concern has also been reflected by the United Nations, when it called upon governments, in General Assembly Resolution 35/72 of 15 December 1978: “…to review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases.”
Moreover, the United Nations Economic and Social Council recommended to member states of the United Nations, in resolution 1989/64 of 24 May 1989, to take specific steps by:
“(a) Affording special protection to persons facing charges for which the death penalty is provided by allowing time and facilities for the preparation of their defence, including the adequate assistance of counsel at every stage of the proceedings, above and beyond the protection afforded in non-capital cases.”
Additionally, according to the then Minister for Internal Security, Mr Rajesh Pilot, out of the total 67,509 people detained under TADA in India 19,263 are in the State of Gujarat alone and only 8,000 cases have been tried so far. This indicates that 59,509 people have been detained without any case being brought against them. In Punjab, out of 15,000 reported cases as of 16 January 1994, only 111 cases have been committed for trial and the rate of conviction is just 0.05%. In October 1994, the Home Ministry revealed that the conviction rate of those tried by designated courts under TADA throughout the country is 0.81% since the law came into force in 1985. This demonstrates that TADA has been used as a law for preventive detention under the guise of a penal statue.
The lack of convictions is no doubt related to the intimidation of witnesses and the attacks on judges which have been perpetrated by members of armed Sikh groups. Witnesses are said to be too frightened to give evidence and some judges reportedly fear to give judgements. On the other hand, the fact that many charges are brought without substantive evidence or are based on evidence fabricated by the police must also contribute to the low conviction rate. In a number of cases Designated Courts have acquitted accused persons on the basis of inadequate police investigations, invoking a Supreme Court directive that the investigations of cases under TADA have to be extremely thorough. The lack of convictions, according to some reports, has led the police to conduct extrajudicial executions instead of arresting suspects and bringing them to court. But very few of those committing such grave human rights abuses are ever held accountable.
The Supreme Court of India has often stated that TADA is an extreme measure employed only when the police have no other way of tackling the situation under ordinary law.
(d) In the 1978 Maneka Gandhi case, the Supreme Court ruled that if criminal procedure is such that it is arbitrary, fanciful, or otherwise oppressive, it does not satisfy the requirements of Article 21. In Sunil Batra vs Delhi Administration, the Supreme Court further stated, ” true, our constitution has no ‘due process’ Clause or the VIII amendment; but in this branch of law, after Cooper (1971) 1 SCR 512:(AIR1970 SC 1318) and Menaka Gandhi, (1978) 1 SCC 248: AIR 1978 Supreme Court 597 the consequence is the same. For what is punitively outragous, scandalisingly unusual or cruel…, is unarguably, unreasonable and arbitrary and is shot down by Art.14 and 19 and if inflicted with procedural unfairness, falls foul of Art.21″.
Article 21 of Indian Constitution was derived from Article 31 of the Japanese Constitution of 1946. It reads, “no person shall be deprived of life or liberty nor shall any other criminal penalty be imposed except according to procedures established by law.” The judicial history of Art.31 of the Japanese Constitution is similar to Indian Constitution. In the beginning they also held that procedures established by law were to safeguard against the executive and not the legislature. However, in the 1960s the S.C. of Japan has read into Art.31 the requirement of due process.
Clause 4 S.20 of the TADA gives police the power to seek a remand from a judicial magistrate or an executive magistrate. There are no guidelines when the accused need to be taken before an executive magistrate or a judicial magistrate. This is important because the procedure and the burden of proof on the police before these two magistrates is different. The police can get remand from an executive magistrate very easily because he is one of them. But for the protection of the rights of accused he should be produced before a judicial magistrate. As there are no guidelines, the police may bring the accused before either magistrate and thereby discriminate. Thus the procedures established by TADA facilitate discrimination by biased police officials.
By reversing the burden of proof so as to require the accused person to prove his innocence in certain circumstances, TADA clearly violates Art 14(2) of the ICCPR which enshrines the principle that “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” The importance of this principle was also underlined by the Human Rights Committee thus: “…(T)he presumption of innocence…is fundamental to the protection of human rights….By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of the doubt. No guilt can be presumed until the charge has been presumed beyond reasonable doubt….It is a duty for all public authorities to refrain from prejudging the outcome of a trial”.
It is also arguable that, by allowing the identity of witnesses to be kept secret at trials, TADA offends against Art 14(2)(e) which confers on the accused the right “to examine or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
Experience has shown that keeping the identity of witnesses secret hinders effective cross-examination by the accused and thus undermines the fairness of the trial.
Article 15 Para 95: No comments.
Article 16 Para 96: No comments.
Article 17 Para 97: Under the Armed Forces Special Powers Act, the police have the power to search and arrest without a warrant.
The Indian Telegraphic Act authorizes surveillance of communications. Telephone tapping and censorship of personal correspondence is practiced in India. While one has access to legal remedies against telephone tapping, the authorization of a Joint Secretary will foreclose any such remedy. The right to privacy is not a fundamental right in India.
Article 18
The South Asia Human Rights Documentation Centre is concerned about the growing religious intolerance in India. The Government of India remains inactive as religious freedom is under attack across the subcontinent.
Though religious minorities do not face any outright discrimination in areas such as jobs, housing and education, various preventive detention laws have been applied in a discriminatory manner, particularly against Muslims.
In the aftermath of the demolition of Babri Mosque on 6 June 1992, more than 1,000 people, mostly Muslims, were killed in India’s premier commercial city, Mumbai (Bombay). The Government set up the Sri Krishna Commission to identify the individuals responsible for criminal acts including murder, rape and arson during the riots, and to investigate the failure of the Maharashtra State Government to take prompt action.
However, on 23 January 1996, Chief Minister Manohar Joshi announced that “there was no need for an inquiry” and disbanded the Commission before it could issue its (long overdue) report. By terminating the Commission, the coalition Government of the Hindu fundamentalist Bharatiya Janata Party and Shiv Sena indicated that those responsible for the bloodshed, including the members of the Bombay Police, will not be held accountable for it.
However, the Bharatiya Janata Party Government which was in power for a brief period requested the Maharashtra Government on 26 May 1996 to restore the Sri Krishna Commission.
In 1996, the State Government of Maharashtra also withdrew 1100 cases filed under the Scheduled Caste and Scheduled Tribe (Atrocities) Prevention Act. Many of the atrocities committed upon the Scheduled Castes and Scheduled Tribes were against Christians and animists.
Article 19:
Under the Official Secrets Act, the Government can restrict publication of stories perceived as “sensitive.” The Official Secret Act is a simple gag rule which permits the Government to conceal its own incompetence. Without a right to information, the Government has the authority to hide everything.
In the last few years, the press has been caught in the cross-fire of the armed opposition groups and the government forces, especially in the strife-ridden states of Jammu and Kashmir, Punjab, Andhra Pradesh, and the north eastern states. The government and armed opposition groups not only censor press reports of human rights violations, but have also ransacked the offices of some newspapers and arrested journalists under the Terrorists and Disruptive Activities (Prevention) Act. Some of these journalists have disappeared after being abducted by official agencies and are believed to have been extrajudicially executed. The armed opposition groups have ordered journalists to abide by their code of conduct and to publish their warnings. The failure to meet their demands has led to a number of cold blooded killings.
The 1971 Newspapers Incitements to Offences Act remains in effect in Jammu and Kashmir. Under the Act, a District Magistrate may prohibit the press from carrying material resulting in incitement to murder or “any act of violence.” The authorities are empowered to seize newspapers and printing presses.
On 8 July 1996, mercenary groups backed by the Government of India kidnapped an detained 9 journalists in Kashmir. The journalists were detained to secure a meeting with the Kashmir’s leading newspaper.
All Srinagar-based newspapers suspended publication from 20 April 1996 for an indefinite period after both the government and the armed opposition imposed fresh curbs on them.
The decision to suspend publication was taken late in the evening of 19 April 1996 after a diktat from the pro-Pakistan Hizbul Mujahideen asked the editors not to publish official statements and government advertisements. The diktat threatened that “stern action” would be taken against them if the restriction were not observed.
The armed opposition’s diktat came in reaction to a government order advising the editors in Srinagar not to publish threats, armed opposition statements, interviews of alleged terrorists or subversive material. It had said legal action would be taken against the erring editors.
Under pressure from both sides, the editors of six Urdu and two English dailies decided to suspend their publications. “There was no other alternative,” Mr Manzoor Anjum, spokesman for the editors stated.
At least nine journalists have been killed in the violence in Kashmir during the past six years. Lassa Koul, former Director of the Srinagar Doordarshan (State run Television), Mohammad Shaban Vakil, former Editor of the Al-Safa, an Urdu daily and Mushtaq Ali, ANI cameraman-cum-reporter, who died in a parcel bomb blast at the local office of the BBC in September 1995 were among the victims. In 1995, local newspapers stopped publication six times.
At least 21 journalists were among over 100 people injured as police and Bharatiya Janata Party workers assaulted media persons at the rally of veteran leader Atal Behari Vajpayee in Dehra Dun on 21 March 1996. The trouble started when some BJP activists entered into an argument with two journalists at the venue and assaulted them. Their colleagues in the Press enclosure rushed to their rescue, the Uttarakhand agitationists, who had shown black flags when Mr Vajpayee arrived, went berserk and indulged in stoning. The seriously injured journalists and 12 others were admitted to the Doon hospital here.
A further example of freedom of expression being discouraged occurred on 7 March 1996. The Delhi High Court stayed the screening of the controversial film “Bandit Queen” across the country, and rejected the Censor Board certificate awarded to the film. In a 26-page judgement, Mr Justice Anil Dev Singh observed that the film was not fit to be screened as it contained scenes depicting nudity of woman in violation of guidelines set under the Cinematography Act. The Supreme Court in a judgement later revoked the High Court judgement.
A Critique of the 1997 Broadcasting Bill: (excerpts from SAHRDC’s forthcoming report)
On February 9, 1995, the Indian Supreme Court ruled that the Indian Government no longer has the right to monopolize the broadcast spectrum. The Court noted that the Indian people have a Constitutional right to express themselves on a wide range of topics, that the freedom of speech includes the freedom to disseminate information and opinions as widely as possible, and that the airwaves are public property; therefore, Indian citizens have a right to use the broadcast spectrum to share their views and to receive those of others. The Court called on the Indian Government to establish a body to issue broadcasting licenses to private parties.
Now, more than two years later, a Joint Parliamentary Committee (JPC) is considering legislation to create such an organization. The proposed Broadcasting Authority of India will allocate spectrum and licenses for privately-owned terrestrial and satellite television and radio stations, and it will oversee cable systems and others who transmit audiovisual signals for reception by more than one party.
But the draft bill does much more. It requires the Broadcasting Authority to develop and implement restrictions on programming content. It places certain positive programming obligations on broadcasters. It criminalizes the reception of “unauthorized” signals by citizens. It states that certain groups are unable to hold or acquire licenses. And it places restrictions on cross-media holdings and foreign equity; the caps appear to increase competition between different media sources but might actually lead to a decrease in the quantity, quality, and variety of programming available to Indians.
The proposed legislation violates the spirit — if not the letter — of the Indian Constitution, the Indian Supreme Court decisions, and the international human rights treaties ratified by the Indian government. The Bill seeks to control and to regulate the dissemination of information rather than merely to license those who wish to speak through the airwaves. Several provisions of the proposed legislation illustrate this very point.
First, the legislation criminalizes the reception of “unauthorized” signals by viewers. Section 21 states that “a person who in contravention of the provisions of this Act . . . receives any broadcasting service which is neither a licensed service nor a permitted service . . . shall be guilty of committing an offense of illegal broadcasting and on conviction, shall be punishable with imprisonment which may extend upto five years, or with fine which may extend upto rupees ten lakhs and in subsequent offense such fine may extend to rupees fifty lakhs, or with both.” Therefore, a person could be imprisoned for watching a satellite service that is not up-linked from India soil and that does not qualify for a special news or sports channel exemption under Section 22; it is worth noting that the exemption is not available for channels which do not fulfill the Broadcasting Authority’s “programming standards” or which carry more than a “limited number of advertisements.” This reception of “unauthorized” shortwave broadcasts would also lead to criminal liability.
Second, the Bill prevents certain groups of people from holding licenses. Schedule I states that political groups, religious groups, advertising agencies, foreign individuals and companies, and “any person convicted of an offense under this Act or convicted of the offenses referred to in section 8 of the Representation of the People Act, 1951 (43 or 1951) or declared as insolvent” are ineligible. These disqualifications generally apply not just to the bodies themselves but also to their officers and to the organizations that control these bodies. These restrictions are unreasonable, inappropriate, and may be unconstitutional. According to the Indian Supreme Court, Indian citizens have a right to express their views and to hear the views of others; they are also entitled to the widest range of opinions. These restrictions curtail the free speech rights of these individuals and organizations and reduce the diversity of information and opinions available to the public. They are an unwarranted form of prior restraint, based solely on the status of the speakers and not even the content of their speech.
The Bill similarly restricts cross-media holdings and foreign equity. Those who own or control newspapers are limited to no more than 20% equity in any broadcast enterprise; similarly, those who own or control broadcast ventures may not own more than 20% of a newspaper. A person may hold only one type of license covered by the Broadcasting Act: terrestrial radio or television broadcasting stations, satellite radio or television broadcasting operations, Direct-to-Home systems, or Local delivery services. And foreign companies can own no more than 49% of any joint-venture. The Indian Supreme Court has stated that freedom of expression includes the right to disseminate one’s views as broadly as possible and through different forms of media.
Preventing individuals from participating fully in the ownership of more than one type of media limits their constitutionally -guaranteed rights. Furthermore, it may reduce the quality of the programming available. Those who own more than one form of media outlet are able to realize cost-savings through the operations of multiple operations. For example, it does not require twice as much effort to research and report a news story for both the television and a newspaper when the work is done by the same organization. Those who own more than one media outlet can reinvest the savings in more and better programming; they will be forced to do so and not be able to pocket the profit if they function in a truly competitive market. The net effect of such proposals, as drafted, is to limit the rights of Indians to express their views and to increase the costs for all media companies of doing business with a minimal gain, at best, for the public.
Third, the Bill gives the Broadcasting Authority a great deal of discretion in setting and interpreting programming standards and requirements. Section 10 of the proposed legislation lists several content-based restrictions. Those who hold licenses shall ensure that none of their programming “offends against good taste or decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling.” They shall avoid “improper exploitation of religious susceptibilities” and “offense to the religious views and beliefs of those belonging to a particular religion or religious denomination.” Section 10 of the proposed legislation also lists several positive content requirements. They shall guarantee that they present the news with “due accuracy and impartiality” and that they discuss “social or political issues or matter relating to public policy” with similar “due impartiality.” Those who hold licenses will devote a specified amount of time to “children’s programmes, educational programmes, developmental programmes and programmes of Indian (regional or local) origin” and “a range of diversity of independent production.” Licensees will also give due emphasis “to promote values of national integration, religious harmony, scientific temper and Indian culture.”
While these goals may be laudable in theory, the concern is that the Broadcasting Authority will apply them arbitrarily in practice. This fear may be greatest with regard to news programming, where a government could gain the most by requiring journalists to frame policy issues in a way to support the government’s position. Through direct supervision or indirect pressure, editors and reporters would choose to avoid stories of a controversial nature so that they would not open themselves up to claims of bias; when they did report on those topics, they would simplify the issues in order not to offend or run afoul of the government requirements. It is worth noting that the Federal Communications Commission in the United States recently abolished the fairness doctrine for broadcasters in the United States because it found that the informal ethics, practices, and competitive pressures in the print media checked most journalistic excesses effectively and did not chill constitutionally-protected speech.
These concerns are present with regards to other types of programming as well. The standards are vague, overbroad, and probably unconstitutional. It is not obvious what offends against good taste or what is likely to encourage or incite to crime or to lead to disorder. For example, do all Bombay-produced movies or Hindi pop songs qualify as Indian culture, or is there some other definition or agenda? The Indian Supreme Court has said that the government can restrict the freedom of speech and expression only for the specific reasons stated in the Constitution. Therefore, the language of the legislation should conform directly to that of the Constitution; broadcasters and their lawyers will be able to look at court precedents to determine what is and is not appropriate. They should not be required to guess about the constitutionality of the standards that are listed in the Bill and that will be supplemented by an advisory board; even if the programmers believe that they have a right to show a certain program, they may not do so because they might be afraid of irritating regulators who might find some other rationale for denying license renewal.
Finally, the Bill offers a back door for the Indian government to regulate access of the World Wide Web. Although the responsibility for overseeing these resources may appear to fall to other authorities and ministries, the Bill does give the Broadcasting Authority the right to regulate services which transmit audio, visual, or audiovisual programming, “irrespective of the means of delivery of that service.” A program is “any matter the purpose of which is related to entertain, educate or inform the public . . . but does not include any matter that is wholly related to or connect with private communication.” Private communication means “(i) a communication between two or more persons that is of a private or a domestic nature; (ii) an internal communication of a business, government agency or other organization for the purpose of the operation of the business, agency or organization; and (iii) communications in such other circumstances as may be prescribed.” A World Wide Web site could be regulated under these definitions because it displays a visual image, may entertain or inform the public, and is not a private communication. Needless to say, such regulation would reduce the freedom of expression already available to the Indian public and might trade on Constitutionally-protected speech.
These are just some of the ways in which the proposed legislation does damage to the free speech and democratic values underlying the Indian Constitution, the Indian Supreme Court cases, and the international human rights treaties ratified by the Indian government. The Broadcasting Bill states “[k]eeping in view our great democratic traditions, it is imperative that our citizens are well[-]informed and given wider choice in matters of information, education and entertainment.” It is wrong that the Bill does not meet its own lofty objectives.
The new Broadcasting Authority should do no more than ensure that private broadcasters compete on a level playing field and that the public broadcasters focus on those programs that the free market will undersupply, such as vocational training. Effective anti-trust enforcement and professional journalistic ethics will solve most, if not all, of the problems of over-concentration that might result from liberalization of the media sector.
In closing, it is worth noting that the Joint Parliamentary Committee considering the Bill requested submissions from interested members of the public and stated that any documents received would be confidential, as a matter of parliamentary privilege. It is ironic, to say the least, that the Committee has decided to close off public discussion on a piece of legislation that says itself that is supposed to give “wider choice in matters of information” to the Indian people.
The legislation is a step forward in one regard. It does comport with the Supreme Court’s decision that Indian citizens must be able to own and operate broadcast stations. At present, the government monopolizes the broadcast spectrum through the Doordarshan television network and All India Radio service. Indians can receive satellite signals and shortwave broadcasts, if they have the correct equipment or a cable operator who provides the signal to them.
It is generally accepted that a licensing scheme may be necessary – but in this Bill, no discussion of how will allocate the broadcast licenses (highest bidder, “social worth”, diversity of views, political connections, lottery, etc.
Article 20:
Para 103: No comments.
Para 104:
“Noting the declaration in paragraph 7 of the report reiterated in the oral presentation, the Committee states that the term “descent” mentioned in article 1 of the Convention does not solely refer to race. The Committee affirms that the situation of the Scheduled Castes and Scheduled Tribes falls within the scope of the Convention. It emphasizes its great concern that within the discussion of the report, there was no inclination on the side of the State party to reconsider its position.” (CERD/C/304/Add. 13) – emphatically asserted the United Nations Committee on the Convention on the Elimination of Racial Discrimination in August 1996.
The assertion of the Government of India that “Racial discrimination is contrary to the tenets of Indian society” needs examination.
India is a land of diverse races including the Aryans, Austrics, Mongoloids and Dravidians. In such a heterogenous society, incidents of racism inevitably occur. The South Asia Human Rights Documentation Centre is once again taken aback by the Government of India’s inconsistent position on racism and racial discrimination.
India was commented upon by the UN Committee on the CERD in its forty-ninth session in August 1996 for racial discrimination. India stated that Article 1 of CERD is irrelevant as “categorical distinctions of race or national ethnic origin have ceased to exist” in India.
“When the Convention had been drafted, the delegation of India at that time had made a valuable contribution to the same article 1… …. and there seemed to be some discrepancy between that historical contribution and the attitude in the report.”- stated Professor Theo van Bhoven, a CERD Committee member and former Director of the UN Centre for Human Rights.
There is no society or no race in the world which has not intermingled with other races or ethnic groups or has not imbibed cultural traits from other races or ethnic groups. It does not, however, mean that distinctions of “race” or “national ethnic origin” have ceased to exist. As Edward W Said writes in Culture and Imperialism, “Far from being unitary or monolithic or autonomous things, cultures actually assume more `foreign’ elements, alterations, and differences than they consciously exclude.”
Before the arrival of the Aryans around 1700 B.C., the Indian sub-continent was inhabited by Adivasis. Indian historian Romila Thapar writes “Wars were not confined to inter-tribal fighting alone. The Aryans had still to contend with the indigenous peoples of North India, who were of non-Aryan origin, and of whom the Aryans were contemptuous.” Professor Thapar further adds that the indigenous peoples were called dasas meaning slaves. The famous Unknown Indian, Nirad C Chaudhuri in The Continent of Circe and Professor A L Basham in The Wonder that was India lucidly describe the extermination of the Adivasis.
The Adivasis differ from the Indo-Aryans in their cultural practices, absence of caste system, caste based occupational specialization and believe in animism. In the Hindu caste system, the Adivasis are referred as “Atisudra” meaning lower than the Sudras, the untouchables.
On the Tibeto-Mongoloid tribal peoples, Nirad C Chaudhuri also writes “any wild and unkempt person was called a Garo or a Hajong. Bhutia, Lepcha, Kuki and other tribal names were equally terms of contempt or abuse.” Today, the situation has changed little. The Adivasis continue to be treated with great contempt and are casually displaced by development projects such as Naramada, Subarnarekha and Koel Karo.
The British brought the Tibeto-Mongoloid groups from the North East India under their control in the 19th century. The mainstream Indo-Aryans had no real knowledge or record of dealings with the Mongoloid tribes of the North East, but felt themselves superior to these tribes. Today, India is trying to rewrite history by saying that all peoples have been coopted into a “melting pot” called India. “It is the same attempt at melting pot alchemy – forcible assimilation of the Tibeto-Mongoloid tribals – which has turned the North East India into a ‘boiling cauldron.'”
The Tibeto-Mongoloid peoples are pejoratively called chinkies, an expression which is analogous to calling Africans niggers. Caught in an interminable armed conflict, they have been targeted under the Armed Forces Special Powers Act, 1958 which permits summary executions. Worse, India still enforces a racial Act like the colonial Criminal Tribes Act of 1871 and many tribals in Gujarat and Madhya Pradesh are still identified as criminals!
The rise of Hindu fundamentalism has led to sharp increase in racism in India. In Madhya Pradesh, tribals were depicted as descendants of Rakshashas, demons, in primary school textbooks. Despite this, no punitive action was taken. Even in the knowledge of such glaring examples of racism, the Government of India refuses to address this problem.
The CERD Committee made the following principal subjects of concern (CERD/304/Add. 13):
“14. Noting the declaration in paragraph 7 of the report, reiterated in the oral presentation, the Committee states that the term descent mentioned in article 1 of the Convention does not solely refer to race. The Committee affirms that the situation of the Scheduled Castes and Scheduled Tribes falls within the scope of the Convention. It emphasizes its great concern that within the discussion of the report, there was no inclination on the side of the State party to reconsider its position.
15. The Committee is seriously concerned that the Kashmiris and other groups are frequently treated in ways contrary to the basic provisions the Convention on account of their ethnic or national origin.
16. Clause 19 of the Protection of Human Rights Act prevents the National Human Rights Commission from directly investigating allegations of abuse involving the armed forces. This restriction on the NHRC’s power is overly broad and contributes to a lack of accountability for actions undertaken by the armed forces. Moreover, it is regrettable that the Commission is debarred from investigating cases of human rights violations which occurred more than a year before the filing of the complaint.
17.The absence of information provided on the functions, power, and activities of the National Commission on Scheduled Tribes and of the National Commission on Minorities makes it impossible to assess whether these Commissions have a positive impact upon the enjoyment of human rights and fundamental freedoms by members of the groups in question.
18. It is regretted that no information has been provided to the Committee on the effective implementation of the penal provisions referred to in paragraph 8 above. In this regard, concern is expressed at numerous reports of acts of discrimination based on race, colour, and descent or national or ethnic origin, although it was stated that no such case has yet been brought before the courts; this leads the Committee to wonder whether individuals are sufficiently well informed about their rights.
19. It is regretted that there is no concrete information on the legal provisions in force to prohibit organizations which incite and promote racial discrimination and hatred. There is also no information available on the provisions for punishment of members of such organizations or their application in practice. This is a serious omission in view of the widespread violence perpetrated against certain minorities sponsored by extremist organizations that have not been declared illegal.
20. The lack of information on the text of the Directive Principles of State Policy of the Constitution relating to the promotion of social, economic and cultural rights, and on measures to give them effect, makes any evaluation of the implementation of article 5 of the Convention very difficult.
21. Regrets are expressed that the National Security Act, and in some areas of India, the Public Safety Act, remain in force.
22. It is noted with concern that the National Security Act, and in some areas of India, the Public Safety Act, remain in force.
23. It is noted that although constitutional provisions and legal texts exist to abolish untouchability and to protect the members of the scheduled castes and tribes, and that social and educational policies have been adopted to improve the situation of members of the scheduled castes and tribes and to protect them from abuses, the fact that widespread discrimination against those people still exists and goes largely unpunished points to the limited effect of these measures. The Committee is particularly concerned about reports that people belonging to the scheduled castes and tribes are often prevented from using public wells or from entering cafes or restaurants and that their children are sometimes separated from other children in schools in violation of article 5 (f) of the Convention.
24. The Committee regrets that certain communities do not enjoy representation in proportion to their size.
25. Although it is noted that the Supreme Court and the High Courts have the jurisdiction to award compensation to victims of human rights violations, including in the field of racial discrimination, concern is expressed that there exists no specific statute providing for the right of individuals to seek from the courts just and adequate reparation or satisfaction for any damage suffered as a result to acts of racial discrimination, as required by article 6 of the Convention.”
The CERD Committee made the following suggestions and recommendations (CERD/C/304/Add.13) after examining India’s report in August 1996:
26. The Committee recommends that the State party continue to strengthen its efforts to improve the effectiveness of measures aimed at guaranteeing to all groups of the population, and especially to the members of the Scheduled Castes and Scheduled Tribes, the full enjoyment of their civil, cultural, economic, political and social rights, as mentioned in article 5 of the Convention. In this regard, the Committee recommends that the next report to be submitted by the State party contain full and detailed information on the legislative aspects and the concrete implementation of the Directive Principles of the State Policy of the Constitution.
27. The Committee recommends that special measures be taken by the authorities to prevent acts of discrimination towards persons belonging to the scheduled castes and tribes, and in the case where such acts have been committed, to conduct thorough investigations, to punish those found responsible and provide just and adequate reparation to the victims. In this regard, the Committee particularly stresses the importance of the equal enjoyment of the right of access to health, education, work, and public places and services, including wells, cafes or restaurants.
28. The Committee recommends that clause 19 of the Protection of Human Rights Act be repealed to allow inquiries of alleged abuses committed by members of the armed and police forces to be conducted by the National Human Rights Commission, and that the Commission be enabled to look into complaints about acts of racial discrimination that occurred more than a year before the filing of the complaint.
29. The Committee recommends that the next periodic report of the State party include information on the powers and functions, as well as on the effective operation, of the National Commission on Scheduled Castes and Scheduled Tribes and of the National Commission on Minorities.
30. The Committee also recommends that the Government provide information about the implementation of the legal provisions prohibiting acts of racial discrimination and organizations which promote and incite racial discrimination, including the number of complaints lodged and sentences passed, in accordance with articles 2 and 4 of the Convention.
31. The Committee recommends a continuing campaign to inform the Indian population about human rights, in line with India’s Constitution and with universal human rights instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination. This should be aimed at eliminating the institutionalized thinking of the high-caste and low-caste mentality.
32. The Committee reaffirms that the provisions of article 6 of the Convention are mandatory, and that India should adopt legal provision making it easier for individuals to seek from the courts just and adequate reparation or satisfaction for any damage suffered as a result of acts of racial discrimination, including acts of discrimination based on belonging to a caste or tribe.
33. The Committee suggests that the State party ensure wide publicity to its tenth through fourteenth reports and to the present Concluding Observations in the official and state languages.
34. The Committee recommends that the State party ratify at its earliest convenience the amendments to article 8, paragraph 6, of the Convention, adopted by the fourteenth meeting of States parties.
35. The Committee recommends that the State party’s next periodic reports, due on 4 January 1998, be a comprehensive report, and that it address all the points raised in these concluding observations.”
The Adivasis are still outcasts from society. They continue to face political, economic, social, cultural and religious discrimination.
In December 1996, six Adivasi children (Kusiram, Jam Singh, Som Singh, Jai Singh, Budhram and Ramesh), all between one and half and three years old, died of starvation in Bodhalaka village in the Balaghat district of Madhya Pradesh. The district officials attempted to hide these fatalities from the public eye. The Madhya Pradesh Human Rights Commission ordered an inquiry into the starvation death of tribal children.
On 7 January 1997, the police of Kansabel Police Station raided the house of Mr Suneraj Urav without any warrant. The police could not find anything incriminating from the house and registered a false case for allegedly stealing gold and ganja (marijuana). According the Bharatiya Janata Party Member of Parliament, the police stripped Saneraj’s wife and his sister-in-law and demanded Rs 30,000 to withdraw the false case. Mr Suneraj had to raise the Rs 30,000 by selling his store of food and by dipping into his pension.
Article 21
Para 105: Though the right to peaceful assembly is recognized under the Constitution of India, there is a serious gap between legal rhetoric and implementation. There have been many violations of the right to peaceful assembly.
Article 22
Paras: 106 and 107: Thousands of non-governmental organizations all over the world operate on shoe-string budgets with the help of dedicated volunteers. Though very little money is available, most NGOs depend on grants from donor agencies to cover their overhead costs. In India, the Foreign Contribution Regulation Act (FCRA) controls the flow of donor funds to Indian NGOs and other organizations involved in development, education, and human rights.
Adopted by Parliament in 1976, during the infamous Emergency, FCRA monitors and restricts the work of NGOs by requiring them to apply for permission to receive donations or to associate with foreign agencies and individuals. A department manned in the main by the Intelligence Bureau under the control of the Ministry of Home Affairs grants or denies these requests.
Any voluntary organization wishing to receive “contributions,” particularly funds, from foreign donor agencies must first register with the Ministry of Home Affairs.
An NGO’s first application for registration will be denied usually on the grounds that the organization is too young. Since there are neither guidelines for registration nor well-defined criteria, it is impossible to know why the Government accepts some applications and rejects others. It appears that the decisions are made arbitrarily, based on political considerations.
Once an organization registers, it is subjected to the scrutiny of the Intelligence Bureau. The Home Ministry requires all registered organizations to submit frequent reports on their activities and to present their bank books for inspection, a strategy which allows the government to influence the programs and activities of the voluntary organizations.
Past experience has shown the government is not beyond harassing voluntary organizations and threatening to withdraw their permission to receive funds. The stated reason? “Public interest.”
India is in the midst of a broad economic liberalization policy that includes the deregulation of foreign investment. While multinational corporations are pumping money into the private sector, non-governmental organizations remain at the mercy of paranoid bureaucrats bent on frustrating their efforts for development and social justice.
Recommendations: The Government of India should repeal the Foreign Contribution Regulation Act. Any reporting requirements for reasons of financial probity should vest with the Ministry of Finance and not with the Ministry of Home as is presently the case.
Article 24:
“The inhuman system of bonded labour continues to follow like eternal shadow of death, the new generation of SCs and STs in our Sovereign and Parliamentary Democratic Republic which claims to be very modern. The Annual Reports of the Ministry of Labour as also the Statements of Ministry of Home Affairs or of Welfare continue to feed the people with half truths and in fact exercises in camouflaging the truth of inactivity and intrigue of the authorities to make the enactments a farce. The statistics are thrown to confuse.” — an emphatic statement of sixty Members of the Indian Parliament of the Scheduled Caste and Scheduled Tribe Parliamentary Forum as stated in a memorandum to India’s then President Mr R Venkataraman on 13 September 1991.
Most of India’s estimated 200 million child laborers are agricultural workers, helping cultivate the family land, caring for siblings and doing domestic chores. However, hundreds of thousands of children work as bonded laborers, forced into servitude to pay off their parents’ debt. In the city, the children of migrant laborers work in restaurants, shops, in railway stations, and on construction sites. Street children are the most vulnerable of the lot; without the protection of a family and a home, many of the girls end up in prostitution.
Though the few available statistics on child labour are alarming, the Labour Ministry has yet to conduct a comprehensive study on the employment of children, leading one to believe that the Central Government is not as committed to the elimination of child labour as it says it is. Without comprehensive and gender desegregated data, appropriate legislation cannot be drafted. Current legislation, seeking to “regulate” the employment of children, is in fact legalizing a deplorable practice based on the premise that poor families need a working child’s extra income.
The 1986 Child Labour (Regulation and Prohibition) Act prohibits the employment of children in certain occupations, namely those which are deemed hazardous to the health and well-being of the child. The Act includes a list of these occupations and processes, including employment in the formal and informal sector; however, the word “hazardous” is never defined.
According to Ms Neera Burra, a noted child labour researcher, the Government of India subsidizes many of the so-called hazardous industries which employ children. According to Burra, the government should initiate labour negotiations at the subsidy level, rather than rely on the ineffective labour enforcement machinery to curb the employment of children.
The Child Labour (Regulation and Prohibition) Act does not regulate child labour in agriculture, the sector which employs the most children, particularly during harvest seasons. Although many children are required to help their own families’ farming activities, others are hired away or are bonded to a landowner; they are vulnerable to the same kind of exploitation and abuse meted out to children in the manufacturing sector.
All non-formal education programmes face tremendous obstacles. According to Mr Joseph Gathia, founder of Centre of Concern for Child Labour (CCFL), a Delhi-based NGO that has set up several non-formal educational programmes for working children, poverty alone does not compel parents to force their children to work: lack of a sound educational infrastructure is also part of the problem. Parents feel that children, especially girls, do not learn anything useful in school. To address this concern, non-formal education classes take an integrated approach; instruction in reading and writing is followed by vocational training, health education and social skills. But direct economic pressures still exist: even those children allowed to attend non-formal classes must continue to supplement the family income.
Although the Government of India has pledged repeatedly to end child labour — at least in hazardous industries — the promises are sounding more and more hollow. NGOs in India and their concerned counterparts in countries which import items manufactured by children, are taking a more drastic approach, one which plays upon the conscience of consumers and aims to hit the Government where it hurts, in trade and export revenue. The Indian carpet industry earns more than US $480 million a year in foreign exchange.
A coalition of concerned activists and socially conscious exporters formed the Rugmark Foundation. The Foundation seeks to provide an alternative for consumers concerned about the use of child labour. The Foundation monitors and certifies that manufacturers are producing all their carpet yardage on looms operated by adults. Surprise inspections are meant to ensure that the factories are child-labour free. Once the manufacturer has demonstrated, to the Foundation’s satisfaction, that they are indeed complying with established standards, then the labels will be given to the manufacturer to be affixed to the finished carpets.
The Government of India, feeling the pressure of a looming trade boycott, issued a new label, “Kaleen,” which will alert buyers and consumers to “child-friendly” carpets. According to Mr Kailash Satyarthi, of the South Asia Coalition Against Child Servitude, the new label is a ploy to diffuse the popularity of Rugmark carpets. He points out that the Child Labour (Prohibition and Regulation) Act of 1986 prohibits the use of child labour in the carpet industry. If the government is, as it claims to be, “unswerving in it’s commitment to end child labour in the carpet industry”, then why does it act as if a special “child-free” label required? Enforcement of the existing laws would go a long way towards ending child labour in all industries.
The Convention on the Rights of the Child, which India ratified in December 1992, stipulates that states parties shall protect the child from economic exploitation and work that may interfere with education or be harmful to health and well-being. In particular, Article 19 of the CRC states that “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of the parent(s), legal guardian(s) or any other person who has the care of the child.”
The guiding principle of the Convention is the need to protect children. The needs of children should be given the highest priority in the allocation of resources. It obligates the state to respect and to ensure that children get a fair and equitable deal in society. It emphasizes the importance of family and the need to create an environment that is conducive to the healthy growth and development of the child. It advocates public concerted action by all individuals and agencies — government as well as non-governmental, local, national, regional and international — to promote the rights of the child. It is a means of empowering children and securing an environment in which all children are able to live securely and to realize their full potential.
It is unfortunate that India, one of the first signatories to the Convention on the Rights of the Child, has yet to conform existing provisions in the Indian Legal system to the provisions of the CRC. Lack of political will has left a proposed amendment to the Child Labour (Prohibition and Regulation) Act pending before Parliament for more than a year. This amendment aims to close the loopholes which are abused by defiant employers, factory owners, labour inspectors, doctors, and district authorities on a regular basis.
The Child Labour (Prohibition and Regulation) Act, 1986, which defines the child as any person below the age of fourteen, prohibits the employment of children in hazardous industries including the construction industry and the manufacturing of matches, fireworks, bidis, and carpets. This law and the spirit of the Constitution, the CRC, and the Universal Declaration of Human Rights are blatantly violated every day. According to a 1991 UNICEF report, an estimated 75 million children in India are out of school. Although accurate figures do not exist, one can assume that they are put to some kind of work, in either the formal or informal sector to help support their families. Past experience leaves most activists skeptical. It seems unlikely that the Rs 8500 million earmarked by the Home Ministry for the abolition of child labour before the year 2000 will ever find its way into legitimate funds and programmes, or that child labour will be totally eradicated by the year 2000.
Denial of Educational Facilities in Indian State of Arunachal Pradesh:
The State Government of Arunachal Pradesh has adopted a policy of denying educational facilities to the Chakma and Hajong tribal migrants. The State Government of Arunachal Pradesh withdrew all the 35 Anganwadi (Child Care) Centres functioning in the Chakma and Hajong-inhabited areas. More than 2000 children of 3-4 years age group have been denied pre-primary school facilities. On the other hand, they can not take admission in primary schools without attending Anganwadi schools.
In September 1994, the government closed abruptly the lone Primary School at Chakma Basti under Chowkam Circle in Lohit district of Arunachal Pradesh which provided education to more than 350 Chakma children. At present, there is no school for any of these children.
The middle school at Bijoypur under Changlang district was also closed down in September 1994. More than 600 Chakma students have been denied school facilities since September 1994 in this school. Similarly, M-Pen Lower Primary School and Divan Lower Primary School have also been closed down in September 1994, denying educational facilities to hundreds of Chakma and Hajong children.
Chowkam Senior Secondary School and Namsai Senior Secondary School in Lohit district and Miao Senior Secondary School in Changlang have denied admission to the Chakma students. All Arunachal Pradesh Students Union (AAPSU) activists have assaulted many students and threatened others with dire consequences. On 29 September 1994, AAPSU activists beat to death Mr Bhaskar Chakma, a class IX student at Miao school.
The Union Government of India has been informed about the denial of educational facilities. The Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh also filed a complaint with the National Human Rights Commission.
Article 25:
The Indian Government has continued to deny the citizenship rights of a large number of Chakma and Hajong ethnic minorities; the Supreme Court stated that the government must recognize the citizenship claims of these individuals.
In circular No Pol-21/80, dated 29 September 1980, the State Government of Arunachal Pradesh said it would not appoint Chakmas and Hajongs to jobs until a final decision on the issue of citizenship is arrived at. After more than 16 years, no decision has yet been taken by the Government of India. Despite repeated appeals, the Union Government has taken little initiative to enforce equal opportunities.
The Chakmas in Arunachal Pradesh migrated to India in 1964 from the Chittagong Hill Tracts of then East Pakistan (now Bangladesh) to escape from religious persecution and the flooding of their lands by the construction of the Kaptai Hydro-Electric Project. A large number of Hajong tribals also migrated in the same year from the Mymonsingh and Syllet districts of the then East Pakistan, now Bangladesh. The Government of India, through the then North East Frontier Agency (NEFA), settled the Chakma and Hajong migrants at the Tirap (now Changlang), Subanchari (now Papumpare) and Lohit districts, the present Arunachal Pradesh.
For the last three decades, the government has denied the Chakmas and Hajongs their citizenship rights. This despite the fact that under the Indira-Mujib agreement of 1972, all those persons ethnically belonging to the Indo-Aryans who had migrated before 25 March 1971 were accorded Indian citizenship. However, there is little concern for the tribal Chakmas and Hajongs.
In 1992, the State Government of Arunachal Pradesh became more hostile and started inciting sectarian violence against the Chakmas and Hajongs. The All Arunachal Pradesh Students Union (AAPSU) served a “Quit Arunachal Pradesh” notice to the Chakmas to leave the State by 30 September 1994. A large number of Chakmas fled from Arunachal Pradesh and took refuge in the neighboring Indian State of Assam.
The Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh approached India’s National Human Rights Commission on numerous occasions to draw its attention to various human rights violations like the deaths of 144 Chakmas in November-December 1994 from a malaria epidemic due in large part to the denial of medicine by an AAPSU economic blockade, the burning down of 187 houses by the Arunachal Pradesh Police, and the withdrawal of Anganwadi (creche) school facilities, trade licenses, and ration cards.
In the light of the State Government’s refusal to comply with various directions of the National Human Rights Commission (NHRC) and prima-facie involvement of the State Government with an extra-legal authority like the All Arunachal Pradesh Students Union, the National Human Rights Commission was compelled to approach the Supreme Court of India on 29 October 1995 to protect the lives and properties of the Chakmas and Hajongs in Arunachal Pradesh.
In its judgement on 9 January 1996, the Supreme Court gave the following directions:
(1) The first respondent, the State of Arunachal Pradesh, shall ensure that the life and personal liberty of each and every Chakma residing with the State shall be protected and any attempt to forcibly evict or drive them out of the State by organized groups, such as the AAPSU, shall be, repelled, if necessary by requisitioning the service of para-military or police force, and if additional forces are considered necessary to carry out this direction the first respondent will request the second respondent, the Union of India to provide such additional force as is necessary to protect the lives and liberty of the Chakmas;
(2)except in accordance with law, the Chakmas shall not be evicted from their homes and shall not be denied domestic life and comfort therein;
(3)the quit notices and ultimatums issued by the AAPSU and any other group which tantamount to threats to the life and liberty of each and every Chakma should be dealt with by the first respondent in accordance with law;
(4)the application made for registration as citizen of India by the Chakmas under Section 5 of the Act, shall be entered in the register maintained for the purpose and shall be forwarded by the Collector or the DC who receives them under the relevant rule, with or without enquiry, as the case may be, to the Central Government for its consideration in accordance with law; even returned applications shall be called back or fresh ones shall be obtained from the concerned persons and shall be processed and forwarded to the Central Government for consideration;
(5)while the application of any individual Chakmas is pending consideration, the first respondent shall not evict or remove the concerned person from his occupation on the ground that he is not a citizen of India until the competent authority has taken decision in the behalf;
The State Government refused to abide by its constitutional obligations and implement the Supreme Court judgement. There have been instances of serious human rights abuses including violation of the right to life. The National Human Rights Commissioned issued various directions in this regard after receiving complaints. The Union Government of India also failed to abide by constitutional obligations to implement the Supreme Court judgement.
Recommendations:
The Union Government of India should inform the Human Rights Committee about its exact plan for awarding citizenship rights to the Chakmas and Hajongs of Arunachal Pradesh, as per the Supreme Court judgment.
Does the fact that the Government of India has not granted citizenship to a single Chakma or Hajong migrant — even though they submitted their applications in February 1997 — indicate that the Government of India wishes to keep the Chakmas and Hajongs stateless if the State Government of Arunachal Pradesh refuses to abide by the Supreme Court directions?
Article 27
The establishment of a National Commission for Minorities is inadequate to protect the rights of the minorities as envisaged in Article 27 of the ICCPR. There is glaring gap between what the Government of India states to the Human Rights Committee and what really exists.
Discrimination persists even at the parliamentary level. For example, the Maharashtra Government of the right-wing Hindu Shiv Sena dismissed the State Minorities Commission. A cursory examination of parliamentary procedure shows further how minorities, tribal and indigenous peoples are discriminated against:
Panchayati Raj or Village Council Rule
“The most important fact of the proposed law (73rd Amendment) is that it will remove the dissonance between tribal tradition of self-governance and modern formal institutions which has been at the root of simmering discontent and occasional confrontation. This will mark the beginning of a new era in the history of tribal people. After the new institutional frame becomes operational, the people will be able to perceive the state apparatus as an extension of their own system in the service of community, that too, in a crucial phase of modernization firmly rooted in the tradition.” — The Bhuria Committee Recommendations.
For the first time after adoption of the Constitution, a law passed by the Parliament was not automatically extended to the scheduled area (for tribals) when the 73rd Amendment to the Constitution was enacted in 1992. This amendment related to establishment of Panchayats (Village Councils) as per the Provisions of Part IX of the Indian Constitution. The Amendment empowered the village councils with limited administrative powers to develop grassroot democracy. The 74th Amendment (Part IXA) concerning Municipalities followed suit soon thereafter.
The 73rd Amendment came into force on 24 March 1993. It was envisaged that all state legislatures will enact suitable laws for establishing panchayats in their respective states within a year. This was implemented, and a new set of Panchayat laws covered the entire country by 24 April 1994. However, it was not extended to the scheduled areas inhabited by the tribals.
The Government refused to implement the Bhuria Committee recommendation which also noted the fact that the process of bringing all tribal majority areas under the fifth schedule which started in 1976 has remained incomplete.
On 24 December 1996, Parliament passed the Bill. However, the Government is yet to start scheduling of the tribal areas although Bhuria Committee recommended to implement it within a year.