1.International Human Rights Instruments and their Application in India
The Chart of Ratification of International Instruments, provided by the United Nations, should ideally form the corpus of international customary law, applicable in all democratic countries. Once an instrument is ratified a signatory is bound to bring in laws that conform to United Nations standards. Even if these instruments are not legally binding, they are morally compelling.
India has yet to ratify a host of international instruments.
Its adherence to them is, at best, ambiguous. The mandate of the National Human Rights Commission (NHRC), established under the Human Rights Protection Act of 1993, provides a lens through which the situation can be better understood.
According to the Statement of Objects and Reasons of the Human Rights Protection Bill, the NHRC would review the existing laws, procedures, and the system of administration, and emphasize that India is a party to the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR).
However, India is not a signatory to many other international conventions or mechanisms like the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Status of Refugees, Optional Protocols to the ICCPR and the Protocol relating to the status of refugees. The UN Code of Conduct for Law Enforcement Officials, the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions also form the basic tenets of customary international law.
On 18 January 1994, South Asia Human Rights Documentation Centre (SAHRDC) wrote to the National Human Rights Commission to reiterate SAHRDC’s desire to seek clarification on Clause 1, Sub Clause (d), of the Human Rights Protection Act which states “human rights means the right relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”.
“Human rights”, as defined in the sub-clause (d) of Clause 1 of the Human Rights Protection Act of 1993, is extremely restrictive and does not adhere to the international instruments; so restrictive, in fact, that it goes against the very spirit of the Universal Declaration of Human Rights.
For example, while ratifying the International Covenants on 27 March 1979, India expressed its reservation to Article 9 of the ICCPR relating to preventive detention. The delegation from India stated, “With reference to article 9 of the ICCPR, 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 the clauses (3) to (7) of the article 22 of the Constitution of India. Further, under the Indian legal system, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest and detention against the State.” However, the Supreme Court of India in recent judgements has been attempting to broaden the scope of compensation.
The reason offered by the Government of India is, as usual, a thinly veiled excuse. Though the right to compensation has been constrained by lack of adequate constitutional provisions and their official expression of reservations at the provisions in the ICCPR, compensation for illegal arrest and detention and custodial deaths have been awarded at the discretion of individual judges or benches.
A whole set of rights embodied in Article 12, 19(3), 21 and 22 of the ICCPR (the right to freedom of movement, the rights permissible curbs on freedom of speech, the right to assembly and association), are restricted. Article 17 of the ICCPR relating to the right to privacy is also legally enforceable in India, especially, in post and telephone communications.
In its letter to the National Human Rights Commission, SAHRDC stated that all international conventions that form the corpus of international customary law are applicable in all countries that are members of the United Nations and the World Community. SAHRDC specifically referred to the following conventions, declarations and principles in addition to the two covenants mentioned in the NHRC Act:
- Universal Declaration of Human Rights
- Convention against Torture
- Convention on the Elimination of Racial Discrimination
- Convention on the Prevention and Punishment of Genocide
- Convention relating to the Status of Refugees
- Convention on the Elimination of Discrimination Against Women
- Convention on the Rights of the Child
SAHRDC also drew the attention of the NHRC to the four Geneva Conventions and their Additional Protocols. It pointed out that internationally accepted principles relating to the administration of justice would have to be incorporated into the NHRC’s work.
These included:
- Standard Minimum Rules for the Treatment of Prisoners
- Code of Conduct for Law Enforcement Officials
- Body of Principles on Detention or Imprisonment
- Principles of Medical Ethics
- Basic Principles on the Independence of the Judiciary
- Basic Principles on the Role of Lawyers
- Declaration on Protection from Enforced Disappearances
- Principles on the Prevention of Summary Executions
SAHRDC did not receive a response from the National Human Rights Commission. However, in its first Annual Report the NHRC suggested some amendments to the Protection of Human Rights Act. Referring to Section 2(1)(d), the NHRC suggested “Human rights means the right relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants, Conventions and Treaties to which India is party”.
The only difference in the suggested amendment to the Section 2(1)(d) is that if India is a party to a Covenant, they do not have to be legally enforceable in courts in India for the NHRC to act on petitions based on these human rights issues.
Human Rights Education
Over the years, the government has taken very few steps to increase human rights awareness at either the institutional level or informal level. This has been one of the major contributing factors to persistent human rights violations, particularly by law enforcement officials, who are not given any human rights training.
The National Council for Teachers Education has introduced a self learning module on “Human Rights and National Values” on 11 March 1996 to train the teachers on human rights. The National Human Rights Commission also organized a seminar on Human Rights Education on 16 February 1996 in collaboration with Canadian Human Rights Commission. The National Human Rights Commission in cooperation with the National Council of Educational Research and Training has brought out a source book on human rights eduction. The NHRC’s programme evoked mixed reaction. Although, human rights activists welcomed the NHRC’s initiatives, it has not been modeled as to attract the students.
However, human rights eduction of the law enforcement personnel is yet to be comprehensively discussed. On 6 February 1996, personnel of several para-military forces at a debate asserted that undue stress on adherence to human rights would make them inactive thereby crippling anti-terrorist operations. Organized by the National Human Rights Commission, in collaboration with the Border Security Forces, the debate on “Security forces observing human rights are better equipped to combat organized violence” evoked divergent views with speakers opposing the proposition forcefully making the point that the language of love would not work with terrorists.
Stating that para-military forces would be rendered ineffective if they were more worried about human rights, the speakers said it had become a fashion to speak of human rights and its violation. They emphasized that terrorism and organized violence could be annihilated only through barrel of guns.
However, there were many who spoke the language of Gandhi and tried to bring home the fact that long-term remedy for terrorism and violence lay in persuasive efforts and observance of human rights. They said that by violating human rights short-term success might be possible. But the real remedy, they argued, was in getting the support of the people which was possible only by adhering to human rights to the core.(1)
2. Political murders, disappearances, torture: Frequency and Methods
Political killings, extrajudicial executions and disappearances continue across India. State agents, non-State agents, fundamentalist religious groups and political hoodlums regularly use terror tactics and violence for their own purposes.
Areas afflicted by internal armed conflict such as Jammu and Kashmir, the north eastern states, the southern state of Andhra Pradesh, and the North Indian states of Bihar and Madhya Pradesh have witnessed an increase in political killings. Security force personnel, in the name of maintaining law and order, have massacred scores of innocent people.
Political killings continued by both the Government forces and the insurgents at a high rate in Jammu & Kashmir and the seven north-eastern States where separatist insurgencies continued.
On 21 March 1996, the National Human Rights Commission (NHRC) directed the Bihar Government to conduct expeditious investigation into the killing of Communist Party of India (M-L) activists by the State police personnel at Begusarai and also effect payment of suitable compensation to the next of kin of the deceased and injured.
In August 1995, the Commission took suo motu cognisance of a press report that five political activists had been killed in unprovoked police firing. Subsequently, the Commission also received a complaint from Mr Swadesh Bhattacharya, a Politburo member of the CPI (ML), alleging that five of his party activists were killed by the police.
Following this complaint, the commission sent the Senior Superintendent of Police from its investigation division to conduct an on-the-spot enquiry, he reported to the Commission that the police killed Mr Nand Lal Paswan and Mr Sikander in firing and injured Mr Sunil Paswan and Mr Rajgir Paswan.
The report also held that the firing in the office of CPI (M-L) and in the adjoining area appeared to be an over-reaction to the stone-throwing by these activists. It was also mentioned that police had not used teargas nor had taken any other precautions like warning them or ordering a cane-charge before resorting to firing and that too from close range.
After noting that the First Information Report (FIR) was duly registered and that the case was under investigation, the Commission recommended to the Bihar Government to complete the inquiry expeditiously and also directed its Superintendent of Police to monitor it.
Further, the Commission recommended a compensation of Rs 50,000 for the next of kin of those killed and Rs 10,000 for those with serious injuries and Rs 5,000 for the other injured.(2)
On 4 February 1996, armed militants raided Dab Bari village under Kamalpur subdivision in Dhalai district in Tripura and set ablaze houses in which three women, including a girl were burnt death.
They also opened fire indiscriminately and set ablaze several houses and threw a four-year-old child into the fire in which another two women were also charred to death. Many others who were injured were admitted to hospitals.(3)
Government employees in Manipur have been forced to pay a monthly tax to the armed opposition groups. The rate varies between one and five per cent of a person’s salary. Every month, a contact man working in government offices, hospitals, banks and even schools, collects the sum, ranging between Rs 50 to Rs 200 per person, and hands it over militants. Those posted in hill districts, a haven for insurgents, have to pay more.
Banks and financial institutions are a major target. Eleven bank branches stopped operations last month. The “tax” cuts across ethnic lines. The salaried classes fall under one category, and businessmen in another. Entrepreneurs are issued “demand notes” and the amount is usually in hundreds of thousand. No one protests. Neither the state administration nor the police have taken steps to counter the menace.(4)
One Kamaluddin Sheikh (45) headmaster of Gasbari Lower Primary School in Assam was gunned down by four unidentified bicycle-borne miscreants suspected to be activists of the United Liberation Front of Assam (ULFA) at around 8 am at Dumarha under Golokganj police station on 7 March 1996. The miscreants fired from a revolver at Mr Sheikh from point-blank range while he was waiting on national highway No. 31 at Dumardaha to board a Dhubri-bound bus. (5)
Mr Pranab Debbarma, a Member of Tripura State Legislative Assembly was kidnapped from his house in West Tripura on 19 January 1996. The officials alleged that Mr Debbarma was reportedly taken to the insurgent base camp in Sylhet, Bangladesh. His whereabouts are presently unknown.(6)
On 13 February 1996, the Assam executive, Mr B B Mukherjee was allegedly abducted by suspected ULFA activists. Mr Mukherjee, general manager of the Bharat Hydro Electric Power Corporation (BHEPC), was kidnapped from his office at Amtereng in Karbi Anglong district.(7)
On 23 February 1996, eight persons, mostly casual laborers, were killed when the Bodo armed opposition group members fired indiscriminately at their rest camp under Kokrajhar district, Assam. Two laborers were critically injured in the attack.(8)
On 26 February 1996, Mr B K Chanda, one of two Crompton Greaves executives kidnapped in January 1996 was “executed” by Bodo militants in Assam’s Sonitpur district. Mr Chanda was taken to Dakhinsala in Sonitpur adjoining Arunachal Pradesh by two motor-cycle-borne armed opposition group members and shot dead at point blank range. They left a note beside his body saying he was “given the death sentence” because the company failed to pay Rs 20 million as ransom.(9)
On 3 March 1996, armed opposition groups in Kashmir shot dead Karam Chand (65) in his house at Khar Bhaderwah in Doda district and kidnapped his son, Ram Raj. The Bullet-riddled body of Ram Raj was recovered by police from the same area later.(10)
On 14 March 1996, the United Liberation Front of Asom (ULFA) were suspected to have gunned down the Assam cultural affairs department director, Mr Bimal Bhuyan, who was also the Principal Information Officer (PIO) to then Chief Minister Mr Hiteswar Saikia. Mr Bimal Bhuyan, aged 35, former lecturer of Cotton College, Guwahati was gunned down as his vehicle stopped in front of the gate of his residence in Srimantapur. (11)
3. Torture
Torture is a sanctioned practice in the administration of justice in India. The police regularly violate the UN Code of Conduct for Law Enforcement Officials and the guidelines for the use of fire arms. Torture, extortion, and rape take place with impunity in police custody across the country. Terrorist and political groups also indulge in these practices.
Mr Deendayal, 40, a poor balloon seller in Bhopal, Madhya Pradesh was picked up by the police on 19 January 1996 for inquiry into a case in which a gas cylinder used to fill balloons burst, injuring five children. Unable to bear the torture, he 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, brought to the police station, and admitted to hospital at 1.30 am, where he died.(12)
Mr Prasad, an ex-convict died allegedly due to torture in police custody at Neredmet on the outskirts of Hyderabad on 2 March 1996. Mr Prasad, 28, was picked up by the police a couple of days earlier on a charge of a theft. During the interrogation at Saroornagar police station, the accused confessed to having committed theft. He was then taken to his room at Neredmet by the police who asked him to identify the stolen goods. Even as the police were in the process of seizing the stolen property, Prasad collapsed and died.(13)
The Central Bureau of Investigation (CBI) has indicted the Punjab Police officers involved in the widely publicized tattooing case in which the words “jebkatri” (pick pockets) were tattooed on the forehead of four women by the Punjab Police few years ago.
In its report 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 allegations levelled by the women 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.(14)
The police has 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 injury to him during interrogation in connection with a theft case. Mr Anil Kumar was picked up by the ASI concerned 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 genitals. Anil Kumar who fell unconscious was admitted to the Civil Hospital from where he escaped. But he was again arrested at Panipat and brought back to the local civil hospital. (15)
The People’s Union for Democratic Rights (PUDR) claimed that at least three police custody deaths, which were officially termed as “suicides” were actually due to poisoning and “foul play on the part of police officials cannot be ruled out.” The PUDR demanded that a FIR 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 (26), died in police custody in Sector 7, Faridabad, Haryana on February 7, 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 the inquest also confirmed torture and humiliation of the deceased while he was in police custody.
A vegetable vendor and a resident of Modinagar in Uttar Pradesh, Ravinder (21) was allegedly detained by the Inter State Bus Terminal police in Delhi on 24 February 1996, following a complaint by his neighbor, Amar Singh, that Ravinder had kidnapped his minor daughter. Amar Singh 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, referred to by the police did not exist.
A resident of Jammu and Kashmir, then employed as a fruit vendor at Azadpur mandi, Ghulam Mohammed allegedly consumed poison in the police post on 31 December 1995. Ghulam had allegedly eloped with a woman from his village and the girl’s relatives who caught Ghulam at the Capital had brought him to the police. However, no FIR was lodged. (16)
The officer-in-charge and a constable of Jhinkpani police station in West Singhbhum, Bihar were suspended for the death of 25-year-old youth Mr Kolai Sevayya in custody 19 February 1996. Kolai Sevayya had been arrested in connection with a murder case.
According to police sources, Sevayya was arrested in connection with the murder of 22-year-old Rajnish Srivastava a resident of Jhinkpani village. Srivastava was lynched and beheaded by irate villagers of Gindrubasa after he misbehaved with Sevayya’s wife.
The villagers alleged Sevayya was tied by his legs to a tree by the police for several hours and beaten up. He succumbed to his injuries at the police station. (17)
Treatment of Torture Victims
The Indian Medical Association (IMA) set up a high-level committee to develop a core content for undergraduate students in medical ethics and human rights that will include all aspects of identifying torture victims, giving them psychological counselling and involving them in the long term rehabilitation process.
Many medical practitioner do not appreciate the nuances involved in understanding an injury, whether it is physical or psychological. Subjects such as privileges of a prisoner are also not familiar to them. High level consultations have been held between the National Human Rights Commission (NHRC) and the IMA that has paved the way for greater cooperation in refining the curriculum of medical students, particularly in medical ethics and human rights.
The IMA had sent a questionnaire on medical ethics and torture to 10,000 of its members during mid 1995 to check the level of their awareness and knowledge. Based on the feedback, a three-day workshop on “Training master trainers and counsellors for counselling torture survivors” was conducted at the Dr A K Sinha Institute of Higher Education in October 1995. It was emphasized that the doctors must be taught to identify torture victims in the first place.
In February 1996, senior IMA officials and Prof Erik Holst, Executive Vice-President of the International Rehabilitation Council for Torture Victims held discussion with the Secretary General of the NHRC on various aspects of medical ethics and human rights.(18)
4. Death Penalty: Frequency and Methods
Article 21 of the Constitution of India states: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. However, much is left to be desired from the judicial administration. 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.(19)
A District and Sessions court on 4 June 1996 awarded death sentence to a 38-year-old under-trial Mr Ajay Kumar under section 302 of IPC for murdering Ashok Kumar at Palika Bazar, Connaught Place, New Delhi on 6 October 1982. He has been in judicial custody for the past 14 years. The court also sentenced three of his accomplices to life imprisonment. Besides the death sentence, a fine of Rs 35,000 was imposed on Ajay for different acts under various sections of IPC. A fine of Rs 20,000 each was also imposed on Narinder Kumar and Mohinder Kumar, while their third associate was fined Rs 10,000.(20)
On 19 February 1996, Sk Firoj, Sk Chandi Munna and Sk Bablu were sentenced to death by hanging by the Fifth Additional Sessions Judge, Alipore, Mr Bimal Chandra Biswas, in Calcutta for the murder and rape of a nine-year-old girl, on the night of 6 June 1993.
The judge sentenced the three convicts also to life imprisonment on the charge of rape and an additional seven years rigorous imprisonment and a fine of Rs 2,000, in default another six months R.I.
The special public prosecutor said, when the girl was returning to her grandfather’s house in Shibtolla lane, Tiljela on 6 June 1993 accused Sk. Gia offered her a lollipop, which was seen by members of the locality. Parveen followed Sk. Gia to a temple where the three other convicts were waiting. There the four raped her one by one following which girl died. But to make certain, they throttled her and left her body covered with cardboard, which was discovered the next day. Local people who came to know of it caught Sk. Gia and beat him to death. The other three were arrested. (21)
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 before the Supreme Court has been filed challenging this provision. The writ petition suggested administering an overdose of tranquilizers or injecting the convicted prisoner with potassium cyanide as an alternative 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. (22)
India has progressively increased the number of offenses to which the death penalty applies – Section 121, Section 132, Section 302, Section 303, Section 305, Section 307 and Section 396 of the Indian Penal Code, as well as certain sections of the Narcotics and Psychotropic Substances Act of 1986 and the Terrorist and Disruptive Activities (Prevention) Act have provisions for the death penalty.
Section 302 of the Indian Penal Code (IPC) prescribes death or life imprisonment as the penalty for murder. The question was raised whether Section 302 of the Indian Penal Code, which provides for the death sentence as an alternative penalty, was constitutionally valid in the case of Bacchan Singh vs Union of India. The death sentence, even as an alternative penalty, was thought to be tempered by the wide discretionary powers given to the judge.
Judicial discretion makes it almost impossible to outlaw the death sentence as an alternative penalty for murder. The Supreme Court has held that section 302 could be imposed in the “rarest of rare” cases.
Even more unconstitutional is Section 305 of the Indian Penal Code, pertaining to murder by a life convict, which excludes judicial discretion and is therefore arbitrary and oppressive.
Judges in India have the discretion to impose or not impose the death penalty. It is one of the great burdens that judges in this country have to carry despite the fact that Section 354(3) of the Criminal Procedure Code (1973) attempts to narrow down this discretion through the following provision: “When the conviction is for an offence punishable with death, or in the alternative imprisonment for life or imprisonment for a term of years, the judgement shall state the reasons why the sentence was awarded, and in the case of a sentence of death, the special reasons for such sentence.” The burden of discovering these “special reasons” is on the judges.
Under the Indian legal system, the death sentence can be passed by a Sessions Court and appealed in the High Court. The decision of the High Court can be appealed in the Supreme Court, and as a last resort, an appeal for mercy can be made to the President of India. Petitions for mercy are very rarely entertained.
In parts of the country declared Disturbed Areas, like some states in the North-East of India and Jammu and Kashmir, draconian laws, such as the Armed Forces Special Powers Act of 1958, are brutally enforced. In these regions the judicial system has broken down. Legal provisions are such that under Section 4(A) of the Armed Forces Special Powers Act, a non-commissioned officer can give the order to shoot and kill purely on the grounds of suspicion. This too must be considered as an extension of the judicial validity of the death penalty.
Despite the fact that India is a signatory to the Universal Declaration of Human Rights and therefore compelled 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 violates the fundamental right to life stated in the Indian Constitution and the Universal Declaration of Human Rights. India, despite its great tradition of non-violence, still upholds a violative instrument that contradicts the very concept of Justice.
In a case relating to right to life, the Supreme Court on 21 March 1996 overruled its earlier judgement, observing that the punishment for attempt to commit suicide, as prescribed by the Indian Penal Code, is constitutional.
It ruled that attempt to suicide and its abetment would continue to be punishable under sections 309 and 306 of the Indian Penal Code (IPC) as article 21 of the Constitution, guaranteeing right to life, did not include right to die.
The judges said that one of the points raised in the appeal was that the inclusion of the “right to die” within the ambit of Article 21 (Right to Life and Personal Liberty) shows that any person abetting it was merely assisting in the enforcement of a fundamental right.
The appeal further said that section 306 of IPC, making abetment to suicide punishable, violates Article 21.
The judges said Article 21 is a provision guaranteeing personal liberty and protection of life. By no stretch of imagination can “extinction of life” be read to be included in “protection of life”.
They added, “right to life is a natural right embodied in Article 21, but suicide is an unnatural termination of life and therefore incompatible and inconsistent with the concept of right to life”.
The court said that any aspect of life which makes it dignified may be read into Article 21 but not that which extinguishes it. They added that the “right to die”, if nay, is inherently incompatible with the “right to life” as is “death” with “life”.
The judges said that assisted suicide and assisted attempt to commit suicide were made punishable for cogent reasons in the interests of society. They added that the abettor has to be viewed differently inasmuch as he abets the extinguishing of life of another person, and punishment of abetment is considered necessary to prevent the abuse of the absence of such a penal provision. (23)
5. Preventive Detention Laws in India
Preventive Detention was authorized in India in the first half of the Twentieth century by the Defence of India Acts of 1915 and 1939, by the Government of India Act of 1919, the infamous Rowlatt Act 1919, and The Bengal Criminal Law Amendment Act of 1925. Under some of these detention laws a prisoner could be detained for six months without informing him of the grounds of his arrest. Only if the detention period was to be extended would the prisoner be informed of the grounds for his arrest and be referred to a special tribunal.
Since independence, the Government of India had been passing legislation that violates the fundamental rights and liberties of the Indian people. These acts infringe fundamental rights, are devoid of the principles of natural justice and invest arbitrary powers in the hands of law enforcement agencies. They are passed with a specific purpose but are entirely misused. There are forty such laws presently on the statute book in India. What is most disturbing about all these pieces of legislation are the precedents set by their implementation. In essence new procedures, a new hierarchy of courts, new restrictions on the life and liberties of the people and in short, a new structure of democracy in the name of securing public order which gives wide powers to the law enforcement authorities are being created, gradually eroding the democratic process.
When the Constitution came into force on 26 January 1950, several provincial acts and ordinances providing for preventive detention became void because they were inconsistent with part three of the Constitution of India, which guarantees fundamental rights and liberties to the citizens. Article 22 of the constitution which guarantees protection against arrest and detention and also laid down the scheme under which a preventive detention law could be enacted.
Just one month after the Indian Constitution came into force, on 26 February 1950, the government of India enacted a central legislation: the Preventive Detention Act (PDA), 1950. It was originally enacted as a temporary legislation and was to expire in 1951 but its life was extended through various amendments until 1969. The Defence of India Act (DIA) was passed in 1962, the maintenance of Internal Security Act (MISA) in 1971 and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 and National Security Act (NSA), 1980.
Yet another draconian piece of legislation, the Terrorist And Disruptive Activities (Prevention) Act (TADA) was passed in 1985. It was meant to expire after two years, however, it was regularly extended every two years until April 1995. The constitutional validity of TADA was challenged before the Supreme Court in March 1994, but the Supreme Court effectively put a seal on it by upholding the constitutional validity TADA, putting the clock back about 40 years. It even overrode its own majority decision in Menaka Gandhi in 1978. TADA expired on 24 May 1995 and it is in the process of reenactment under a new name: the Criminal Law Amendment Bill.
Barring a short span of one and half years in the 1970’s and another short span of two years during the late 1970’s Janata Dal regime – the people of India have never been without the sword of draconian preventive detention laws hanging over their heads.
The new Criminal Law Amendment Bill was introduced in the Rajya Sabha (upper house of the Indian Parliament on 18 May 1995 and is still haunting the corridors of Parliament house. It met with stiff opposition from Janata Dal and left-leaning parties and was caught in the political tug of war between the right wing BJP party and the National Front on the left.
Designated Courts under TADA
TADA provides for the constitution of designated courts for speedy and expeditious trial of offenses. The Act does not provide any procedure for pre-trial cases, nor does the Criminal Procedure Code (CrPC) provide any guidelines. TADA, however, allows a maximum one-year detention, while 90 days is the prescribed limit under the CrPC. The First Information Report (FIR) is not available to the accused either upon arrest or when he/she is produced before the court for a remand. The identity of the witness is confidential and the accused has no right to cross-examine. Appeals against bail applications can only be addressed to the Supreme Court. Statements made to police officers are admissible as evidence in court, a provision which essentially sanctions coerced confessions.
Even under the existing preventive detention law, a person cannot be detained beyond three months without the case being referred to an advisory board that has the authority to release him/her if the grounds for arrest are irrelevant.
TADA has no system of checks and balances which would curb misuse of the law. In fact, the intention of the legislature is to by-pass judicial scrutiny. A TADA case is primarily prepared from the point of view of the police. In most cases the accused is acquitted, but nevertheless punished by the long period of pre-trial incarceration, which is usually no less than two to three years. This is the `just’ procedure prescribed for the trial of a terrorist in India. In essence the accused is blindfolded through out the trial.
The Supreme Court in a verdict in March 1996 liberalized release of TADA accused on bail and direction to all TADA courts to consider granting the “hardcore elements” languishing in jails all over the county with no prospect of speedy trial, in consonance with right to personal liberty enshrined under Article 21 of the Constitution.
The judgement, delivered by a division bench comprising the Chief Justice, Mr Justice A M Ahmadi and Ms Justice Sujata V Manohar, reconciled conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive activities.
For the purpose of release of TADA accused on bail, the Court classified all the accused persons in broadly two categories, namely hardcore elements and others. While in case of hardcore elements the bail provisions of TADA will apply strictly, in other cases the Designated Courts will be liberal in granting bail to the accused.
This will release the pressure on the courts in the matter of priority trial. Once the total number of prisoners in jail shrinks, those belonging to the hardcore category and, therefore, kept in jail, can be tried on a priority basis, Ms Justice Manohar, who delivered the judgement on behalf of the Court, observed.
That would help ensure that the evidence against them does not fade away on account of delay which may otherwise harm the prosecution case and the harsh bail provisions may prove counter-productive, she said and added a pragmatic approach alone can save the situation for, otherwise, one may be found to have completed the maximum punishment provided by law by being in jail without a trial.
The Court made it clear that even in cases where a large number of persons are tied up with the aid of Indian Penal Code Provisions like conspiracy and rioting, the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered.
“With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADA detenus, which is at present about 6,000, and then deal with hardcore under-trials on priority or is lost. Such an approach will take care of both the competing interest”, Ms Justice Manohar observed while requesting the TADA courts to act accordingly so that the real culprits are promptly tried and punished.
Further elaborating on this issue, the Court divided under-trials in four categories namely:
hardcore under-trials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general and to the complainant and prosecution witnesses in particular;
other under-trials whose overacts or involvement directly attract substantive provisions of the TADA namely Sections 3 and 4 of the law;
under-trials who are roped in, not because of any activity directly attracting under substantive provisions of the Act but by virtue of certain provisions of the Indian Penal Code relating to conspiracy and rioting, and;
those under-trials who were found possessing incriminating articles in notified areas and are booked under Section 5 of the TADA.
The Judges say ordinarily, it is true that the bail provisions of TADA would apply to all the under-trials booked under the Act. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of the charges.
Adopting this approach, the Court expressed the view that under-trials falling within group (A), namely hardcore elements, could not receive liberal treatment. Cases of under-trials falling in group (B), whose overt acts or involvement directly attract substantive provisions of the act, would have to be dealt with differently. If they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant, the family members of the complainant, or witnesses.
Under-trials falling in group (C) and (D) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively. Those falling in group (B), when released on bail, may be released on bail of not less than Rs 50,000 with one surety for like amount and those falling in group (C) and (D) may be released on bail on their executing a bond for like amount, subject to the following terms:
The accused shall report to the concerned police station once a week;
The accused shall remain within the area of jurisdiction of the Designated Court pending trial and shall not leave the area without the permission of the Designated Court
The accused shall deposit his passport, if any, with the Designated Court. If he does not hold a passport, he shall file an affidavit to that effect before the Designated Court. The Designated Court may ascertain the correct position from the passport authorities, if it deems it necessary;
The Designated Court will be at liberty to cancel the bail, if any of these conditions is violated or a case for cancellation of bail is otherwise made out.
Before granting bail, a notice shall be given to the public prosecutor and an opportunity shall be given to him to oppose the application for release.
The Court clarified that these conditions may be relaxed in case of those under groups (C) and (D) and, for special reasons to be recorded, in the case of group (B) prisoners.
The Judges say these directions may not be applied by the Designated Court in exceptionally grave cases such as the Bombay bomb blast case where a lengthy trial is inevitable looking to the number of accused, the number of witnesses and the nature of charges unless the court feels that the trial is being unduly delayed.
The Court made it clear that these directions were a one time measure meant only to alleviate the current situation.
When stringent provisions have been prescribed under an Act such as TADA for grant of bail and a conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under-trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes, the Judges opined.
They said this is the only way in which society can be protected against harmful activities.(24) Prior to the delivery of the judgement, former Union Minister Mr Kalpanath Rai and former Bharatiya Janata Party candidate Mr Brij Bhusan Sharma were arrested under the Act. They were later released on bail.
Judicial Response
Ironically, the first case to come up before the Supreme Court of India in 1950 was to judge the validity of the provisions relating to the preventive detention of the communist leader Mr A K Gopalan. The majority of the judges in Gopalan’s case confirmed the validity of the Preventive Detention Act. Article 21 of the Indian Constitution guaranteed to every person the right to life and liberty, a right which could not be denied without violating the due procedure established by law.
In A K Gopalan’s case, the Supreme Court distinguished “procedure established by law” from the “due process of the law” by stating that any procedure duly enacted by the legislature would be a “procedure established by law”. This trend of the Supreme Court continues today. The Supreme Court did not change its stand even after the Maneka Gandhi case in 1978 in which the Supreme Court held that the “procedure established by law” must also be just, fair, and reasonable.
Whenever these preventive detention laws have been challenged before the Supreme Court, the court has upheld their validity despite the blatant violation of national and international human rights standards. Whether challenging the Preventive Detention Act in 1964 or the MISA in 1974 and 1975, or the National Security Act in 1982, or the Armed Forces Special Powers Act in 1983 or TADA in 1994, the Supreme Court has consistently maintained its stand.
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.
The judiciary has collaborated with the executive in dealing with alleged “national security” measures. The writ petition 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 have dissented) the judges issued a decision which attempted to prove that TADA is not violating 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 previous 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 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 devotes as many as ten pages to “noticing” how terrorism in the country and on a global level has increased. He has quoted the Home Minister’s speeches during parliamentary debates as a source of evidence that terrorism is on the rise. He built a formidable case for anti-terrorist legislation in all of the 22 states where TADA is applicable. The bench felt that it was its duty to keep the Terrorist Act on the statute book in defence of India rather than defending the Constitution of India.
Over a decade ago, writ petitions have been 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 disturbance for the security of the State. No prosecution of the concerned officials could take place without seeking prior permission from the Union Government. The Act gives license for killings and is applicable in Jammu and Kashmir, Punjab, north eastern Indian States of Assam, Meghalaya, Manipur, Mizoram, Nagaland, Arunachal Pradesh and Tripura. By failing to hear the constitutional validity of the Act even once in the last one decade, the impartiality of the judiciary under suspicion.
6. Freedom of Expression and Media Freedom
India has always been proud of the freedom granted to the press. It has said that Freedom of the press in India is a strong and vibrant example of the country’s commitment to the principles of democracy and freedom of expression. The freedom of expression, though not classified as a fundamental right, is ensured under Article 19(1)(a) and 19(2) of the Indian Constitution.
With violence rising across India, journalists covering religious, separatist, and ethnic conflicts often become victims in the cross-fire and victims of political violence.
Journalists in Indian work on the razor’s edge. In an environment where both the state and non-state agents are trying to control the media, journalists are often accused of giving biased coverage. Militants and state governments regularly attack and coerce journalists in an attempt to curb press freedom.
State authorities, irrespective of the political party in power, are not beyond resurrecting forgotten laws to restrict the right to freedom of expression.
A cursory analysis of press freedom in India exposes the erosion of freedom of expression over the years. The culture of secrecy in India leads to self-censorship on the part of journalists and editors. The web of disinformation, both intentionally and unintentionally generated by the government and the press makes it impossible for the reader to gage the extent of repression and human rights violations.
In the late eighties, in the wake of the Bofors scandal, which led to allegations of corruption in the government, Parliament tried to bridle the freedom of expression. “Restrictions through special laws passed by state and central governments to deal with political and communal violence” has always been a feature in India.
The Defamation Bill
The attempt to restrict the exposure of the Bofors Scandal was the most serious threat to media in Independent India. The central government tried to introduce the Defamation Bill in July 1988. The legislation would have sanctioned far-reaching changes to the criminal law of defamation. The Defamation Bill sought, inter alia, to formulate a new offence, criminal imputation, punishable by imprisonment coupled with a fine. A resounding protest in the media forced the government to withdraw the bill. The Press and Registration of Books (Amendment) Bill 1988 also met the same fate.
In 1994, a private members bill on the “right to reply” moved by Mr Vittal Gadgil, the official spokesperson of the ruling Congress party sought to bridle media freedom. Media protest has done away with the bill.
Meanwhile, the ban on Indian editions of foreign newspapers and magazines continues. In 1955, on the recommendation of the First Press Commission, the government decided that “no foreign-owned newspaper or periodical should be published in India and that foreign newspapers and periodicals, which dealt mainly with news and current affairs, should not be allowed to bring out Indian editions.” After a much publicized bid, TIME magazine, gave up its attempt to introduce an Indian edition of the weekly.
Among other mechanisms employed by the state to hinder the freedom of the press is the newsprint policy. Under this policy, imported newsprint is channelled through the State Trading Corporation of India. The government has consistently refused to let newspapers import paper.
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 not only censors press reports of human rights violations but has also ransacked the offices of some newspapers, and arrested journalists under the Terrorists and Disruptive Activities (Prevention) Act. Some of the 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 the assassination of a number of journalists.
All Srinagar-based newspapers suspended publication from 20 April 1996 for an indefinite period after both the government and militants 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 militants’ diktat came in reaction to a government order advising the editors in Srinagar not to publish threats, militants’ statements, interviews of 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 at an emergency meeting decided to suspend their publications.
At least six journalists have been killed in the violence in Kashmir during the past six years. Lassa Koul, former Director of the Srinagar Doordarshan, 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.(25)
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.(26) The Supreme Court in a judgement later revoked the High Court judgement.
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.(27)
Electronic Media
The Government of India has been contemplating legislation that would curb broadcasting of independently produced news and current affairs programmes. In 1994, the government had planned to introduce the Cable Bill in Parliament. Such as bill would strangulate alternative television channels like Zee TV and Jain TV. It would also restrict independent television stations
from uplinking to satellites outside the country. Currently, the Indian Telegraph Act does not allow a station to uplink from within the country. Doordarshan is fighting a loosing battle in an effort to maintain a government monopoly over the news and current affairs broadcasting. In fact the government television station has struck a deal with CNN, which would indicate that broadcast regulations are likely to remain conveniently vague.
Private television producers have taken advantage of the sudden expansion of the medium to bring out a number of new melodramatic serials, talk shows, current affairs programmes, and film music shows, all sponsored by commercial interests.
In addition to massive growth in the domestic media, the barrage of news and entertainment available on foreign satellite channels has given viewers more choice than ever before. The poor quality of Doordarshan programming has forced the government channel to the margin. Though some unimpressive attempts have been made to revamp its programming, Doordarshan is unable to compete with the multitude of domestic and foreign channels now available to many viewers. However, under current regulations, Doordarshan is the only broadcaster permitted to carry live news broadcasts, a privilege the government is not likely to relinquish. The government also screens all domestic productions before broadcast, and reserves the right to censor sensitive or otherwise provocative information.
7. Elections and the Right to Political Governance
The government has a federal structure, based on a bi-cameral national assembly. State assemblies govern at the highest level while local governments, known as Panchayats, govern at the grass-roots. At the time of independence India adopted the Westminster-type of government, in which the Prime Minister is selected from the majority party of the Parliament. The President carries out a largely ceremonial role.
Those who framed the Constitution, wishing to establish standards for fair and free elections, decided to give utmost importance to the Election Commission, freeing it from any kind of political interference. Article 324 (1) of the Constitution vested the Election Commission with plenary powers “for superintendous, direction and control of the preparation of the electoral rolls, for the control of all the elections to Parliament, the legislatures of every state, the offices of the President and Vice President held under the Constitution”. In addition, the Representation of the Peoples Act (1950) provides for the preparation of the electoral rolls and registration of voters. Article 325 of the Constitution provides against discrimination in the electoral rolls on the grounds of religion, race, caste or sex.
The Constitution guarantees autonomous status, independent of the political executive in the functioning of the Election Commission to hold free and fair elections. The present Election Commissioner, Mr T N Seshan, has stirred several controversies about election procedure, and election-day crookedness, which the previous election commissioners preferred to ignore. The Election Commission itself had become a weak institution as ruling political parties nibbled away at its independence. Mr T N Seshan attempted to implement a code of conduct for political parties and for candidates participating in the elections. Though he has clamped down on electoral bribes and favors, this rule has been brazenly flouted by every party in power.
The Parliamentary Elections for the Indian Lok Sabha (lower house of the Indian Parliament) were held in India from 27 April to 8 May 1996 with the exception of Jammu and Kashmir. The Election was relatively free and fair except for some political killings in Bihar.
However, the elections in the Kashmir valley from 23 May to 30 May 1996 have violated each and every established and universally recognized norm of holding free and fair elections. The security forces threatened and forced the voters to cast their votes. A SAHRDC representative was present in Kashmir during the elections. The elections in Jammu and Kashmir have certainly exposed the bias of the Election Commission of India.
On the 31 May 1996, the South Asia Human Rights Documentation Centre (SAHRDC) expressed concern to the National Human Rights Commission in New Delhi about the arrest and unlawful detention of one Mr Mohammed Ramzan son of Mr Abdur Rahman Najar, aged about 22 years and one Mr Abdul Rashid, son of Ghulam Mohamed, aged 45 years. Mr Ramzan and Mr Rashid are both carpenters by profession and are residents of the Solina Balla neighborhood on the Airport Road, Srinagar, Jammu and Kashmir.
According to SAHRDC researchers who visited the neighborhood on the morning of 31 May 1996, the inhabitants of the locality stated that both the detainees were arrested in the morning of 29 May 1996 at 11 am. The arrests were effected by a group of soldiers belonging to the para-military force, the Border Security Force (BSF). The BSF personnel were accompanied by personnel of the Special Task Force of the Jammu and Kashmir Police. According to eyewitness accounts, both detainees were dragged out of their respective homes, beaten and bundled into BSF vehicles and driven to the nearby Shergadi Police Station. There, a Sikh BSF officer who had led the arresting party beat them further. This was done in the presence of neighbors who had gone to the police station in Shergadi to seek their release. SAHRDC made detailed enquiries in the neighborhood and learnt that both individuals arrested, had no previous record of arrests and were not even remotely involved with any militant or separatist activity.
SAHRDC learnt that both Mr Mohamed Ramzan and Mr Abdul Rashid were later taken to an illegal detention center housed in a house of a Mr Bhatt, a hindu migrant, who had fled the Kashmir valley. The house is situated near the D A V School in the Jawahar Nagar neighborhood of Srinagar. SAHRDC enquiries near the illegal detention center revealed that local residents had seen about 21 young men being taken into illegal detention center in the last few days.
Neighbors of Mr Ramzan and Mr Rashid informed SAHRDC researchers that both of them were arrested to intimidate the neighborhood to cast their votes in the elections to the Srinagar Parliamentary constituency. The elections was held on the 30 May 1996. SAHRDC was witness to large scale intimidation by personnel belonging to the Border Security Force and the Central Reserve Police Force (CRPF). Unwilling residents were dragooned out of their homes at the crack of dawn and herded at gun point to polling booths. The Kashmir valley was witness to a mockery of the election process which should have been democratic, but was anything but that.
8. Discrimination on the Basis of Sex, Color, Ethnic Origin, Religious or Political Belief
The most primitive idiosyncracy of the modern Indian state is the systemic mistreatment of people belonging to lower castes. Scheduled Castes (SC) and Scheduled Tribes (ST) form 22.5 percent of the total population of the country. These figures omit several millions of people classified as Other Backward Classes (OBCs), and Dalits (untouchables).
Ethnic/racial minorities
In Article 15(4) the Constitution provides for special reservations for the advancement of (a) socially and educationally backward classes of citizens, and (b) scheduled castes and tribes. Article 16 of the Constitution lays down that the state shall promote the educational and economic interests of the tribal people and protect them from special injustice and all forms of exploitation.
The rapid increase in the crimes committed against lower castes tells a different story. Members of these castes and tribes are subject to the most inhumane and barbaric treatment. They are disgraced, humiliated and indiscriminately murdered. Women are paraded naked and raped, their children are abused and denied access to schools and health care. Their fields and property are ransacked and burnt. There are a number of legal instruments that investigate atrocities committed against the SC/ST, the Protection Of Civil Rights Act (1955), the Scheduled Castes and Scheduled Tribes (Prevention Of Atrocities) Act (1989) and other legal provisions.
Socially degraded and economically impoverished, the tradition of “untouchability” sanctions widespread discrimination and human rights abuses. Unlike the problem of racial discrimination, “untouchability” is a construction of the caste system. Birth defines membership in a particular caste, but prejudice is the factor which maintains the social hierarchy.
Not a day passes without news of caste-related atrocities perpetrated with impunity by upper-castes. However, this represents a very small portion of the violence against lower castes. Most cases go unreported and are routinely hushed up. From the local panchayat to the district administration, lower castes are denied their civil rights for no other reason than their social status.
Constitutional and legal safeguards for the SC/ST
The Constitution of India provides an impressive array of provisions for the removal of disabilities and discrimination against the Dalits. These provisions try to counter institutionalized discrimination like the restriction of access to public places (Art. 15.2); they provide for employment reservations in the civil service that favor classes not adequately represented (Art 16.4); the abolition of untouchability (Art 17); the prohibition of traffic in human beings, and forced labor (Art 23); they guarantee of right to practice, profess and propagate any religion (Art 25); protection of the right to admission to educational institutions (Art 29.2); the promotion of educational and economic interests of SC/STs (Art 46); special administrative jurisdiction over scheduled areas and scheduled tribes in any state (Art 244 and Schedules V and VII); the reservation of seats and special representation in Parliament and state legislatures (Art 334); reservation in civil services (Art 355) and the appointment of a Commission for Scheduled Castes and Scheduled Tribes (Art 338).
The constitutional safeguards are further buttressed by special enactments relating to the SC/STs. These are the Protection of Civil Rights Act (1976) and the SC/ST (Prevention of Atrocities) Act, 1989.
The Untouchability (Offenses) Act (1955) penalizes the practice of untouchability in any form. This act was amended in November, 1976 and renamed as the Protection of Civil Rights Act with a number of additional provisions for stringent punishment for repeat offenders. Before this amendment, a large number of cases had been acquitted or compounded, and a substantial number of trials remained pending year after year. Since the victims of offenses under this act are economically weak and socially handicapped they tend to succumb to coercive tactics by the accused which affects their testimonies in the courtroom. Revision of the act would it was hoped close the loopholes and lead to better enforcement of the law.
The Scheduled Castes (Prevention of Atrocities) Act 1989, which came into force on 30 January 1990, lists the atrocities which are punishable under the Act. The following classes of offenses committed by a non-SC/ST person against an SC/ST person include:
Offenses against human dignity like the forced consumption of noxious substances, dumping waste, stripping, outraging modesty, and public humiliation.
Economic offenses like wrongful occupation or cultivation of land, or interference with rights over land or water, and bonded labor.
Intimidation or coercion of voters to abstain from voting or to vote for a particular candidate.
Offenses that endanger health like the pollution of water used by members of the SC/STs.
Placing restrictions on movement or residence like the denial of rights of passage or entry to public places and forced eviction.
Giving or fabricating false evidence knowing it might lead to the conviction of an SC/ST.
The destruction by fire or explosive substances of property, homes or places of worship of the SC/ST’s.
The Scheduled Castes and Scheduled Tribes (SC\ST) Welfare Committee, in its report submitted in 1995 lambasted the Government of India for not taking action against the atrocities committed against SC/STs. The Special Courts to be set up under the Protection of Civil Rights Act (PCR) have not been set up. Only six states have set up Special Court under the Protection of Civil Rights Act (1955) and two states under the Prevention of Atrocities Against Scheduled Castes and Scheduled Tribes Act. Under the SC/ST Act, Andhra Pradesh and Rajasthan have set up three and ten special courts, respectively. Under the PCR Act, Andhra Pradesh has set up 22 Courts, Bihar, Madhya Pradesh and Tamil Nadu have four each, Rajasthan has six and Karnataka has four. (28)
On 3 June 1996, one Harijan, Mr Ramdeo’s wife Laxmi, two of her daughters-in-law, one teenager girl and a boy were working in the field adjoining the land of one upper caste Rajput family. About a dozen people arrived there to plough the land of Mr Ramdeo. When Ramdeo’s family objected to it the outsiders attacked them. At that time, no male member of the family was present there except the boy.
“They attacked us with lathis and threw us outside the field”, said Laxmi. Her two daughters-in-law, Pista and Brahma were severely beaten up. The teenage girl also received a blow of lathi near her throat. According to Laxmi, the attackers took away the gold earrings of the girl. The fourteen year old, boy received injuries to his testicles.
A medical team, which went to the village, confirmed the injuries of lathis but were not very clear about the pouring acid on their faces, as none of the alleged victims was having any sign of acid burns on any part of the body. The harijan women had lodged an FIR at Khairthal Thana naming 12 Rajputs including Vijay Singh, Prahlad, Jagdish, Ashok, Sanjay and Naresh all residents of Khairthal.(29)
In March 1996, a Scheduled Caste woman, Khimli Devi was stoned to death over a land dispute near Bongachinna in Pithoragarh in Uttar Pradesh. On 7 March 1996, official sources stated that five accused in the crime have been arrested. Khimli Devi had a dispute over some forest land in Chamu village with another family. The dispute has been going on for three years. The administration has sanctioned Rs 75,000 as relief to Khimli Devi’s family.(30)
Special Focus: Displaced Tribal Peoples
A large number of tribal people have been affected by constructions of large dams in their regions. Their lands have arbitrarily taken over by the Government under the Land Acquisition Act. Thousands of tribal people were displaced from their traditional homeland.
On 7 March 1996, the Committee on Welfare of SC and ST has recommended to the Welfare Ministry inclusion of representatives of displaced tribals, including women, in the project rehabilitation committees at the project level. This is to ensure involvement of tribals displaced by major projects in the process of rehabilitation.
The report on rehabilitation of tribals displaced by major projects in Madhya Pradesh presented to the Lok Sabha on 7 March 1996 said that the delay in finalizing a uniform national policy on rehabilitation of tribals was causing resentment among the displaced tribals.
It underlined the need for formulating a separate policy for tribals exclusively keeping in mind the number of tribals vis-a-vis others displaced due to execution of major projects.
The Committee also recommended that the displaced tribals mostly dependent upon agriculture should be provided with alternative lands for their sustenance as far as possible.
The Committee expressed unhappiness over the fact that sometimes lands acquired from tribals for execution of projects were found to be more than what was required “and surprisingly no decision has been taken so far to return the surplus lands to the tribals.” The Committee, therefore, recommended that land acquired in excess of the requirement should immediately be given back to the tribal land-holders without fail.
It also recommended that all concerned should take immediate steps to finalize the identification process so that the needy landless oustees were rehabilitated without loss of time.
The report said the Committee was surprised to note that the Tribal Advisory Council, consisting of 18 ST members, was consulted in the rehabilitation and resettlement process of displaced tribals under the execution of any project in Madhya Pradesh.
“The Committee fails to understand that when the tribal division of the ministry has been entrusted with the responsibility of looking after the rehabilitation and resettlement programmes of the displaced tribals throughout the country, what would have prevented it in playing a responsible role towards the displaced tribals of Madhya Pradesh,” the report said.
The Committee also urged the Madhya Pradesh Government to carry out an indepth study with a view to finding out reasons for which its present system of monitoring and evaluation of the rehabilitation programmes was considered to be inadequate.
It recommended that in order to guard the interest of tribals displaced due to projects undertaken by the State Government, an ST member as far as possible should be appointed in the rehabilitation committee.
In a separate report on working of integrated tribal development projects in Orissa, the Committee recommended that fertilizer manufacturers in Orissa should be granted adhoc increase of incentive of Rs. 52 per ton under the freight equalization scheme. This would enable them to deliver their products by road in various blocks to tribals sub-plan areas not covered by rail in Orissa. In neighboring States of West Bengal and Madhya Pradesh the incentives ranged from Rs 45 to Rs 60 per ton.
The Committee also recommended provision of adequate medical and para-medical staff in the new primary health centres and community centres and all other medical institutions at an early date to provide full health care in tribal areas. (31)
Religious Minorities
The religious minorities do not face some subtle discrimination in areas such as jobs, housing and education. However, various preventive detention laws have been used against religious minorities, particularly 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 commercial city, Bombay, Maharashtra. 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 Mr Manohar Joshi announced that “there was no need for an inquiry” and disbanded the Commission before it could issue its long delayed 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 at the Centre requested the Maharashtra Government on 26 May 1996 to restore the Sri Krishna Commission.
9. Discrimination Based on Education, Employment, Health Care and Housing
The realization of economic and social rights rests on the belief that individual welfare results in part from the economic, social and cultural conditions in which people live, and the view that the government has an obligation to ensure the adequacy of such conditions for all citizens. The fundamental rights embodied in the Indian Constitution are essentially liberty rights. Welfare rights are consigned to the directive principles of state policy. Within this notion of welfare, well-being is based on the convergence of needs and rights. Though the Indian state, is an interventionist state and has taken on some welfare functions, it is not a welfare state. The provision of state welfare is generally viewed as a positive obligation rather than an imperative right.
Education
The 300 million people live below the poverty line in India and 324 million are illiterate, a situation that demands an immediate and sustained response from the Indian state. Investing in universal primary education, one of the directive principles of state policy in India, would be a step towards social justice.
This can be well illustrated by the case of Nellore district in Andhra Pradesh and its subsequent anti-arrack struggles. Nellore is an example of how education can facilitate grass-roots civil movements. The total literacy movement fostered the anti-arrack movement. In turn the anti-arrack movement empowered women to start a savings scheme thereby strengthening their socio-economic status.
Two decisions by the Supreme Court on the Right to Education have established an important precedent for universal education. In the first case, Mohini Jain in 1992, the Supreme Court took a broad view of the Indian Constitution, and held that every citizen has a right to education. Although the right was not expressly incorporated in the Indian Constitution, the Supreme Court interpreted that the right to education flows directly from the right to life, under Article 21. It stated that the dignity of the individual cannot be assured unless it is accompanied by the right to education. The court argued at length that the Indian Constitution combines social and economic rights along with political and civil rights, thus fundamental rights must be interpreted against the backdrop of the directive principles contained in the Indian Constitution.
The Supreme Court’s decision in Unnikrishnan case in 1993 reiterated the previous attempt to develop a minimum core of entitlement to the right to education. The court argued that the right to education implies that every child has a right to free education until the age of 14. After that age, that right is circumscribed by the economic capacity of the state.
There is no outright discrimination by the authorities against particular groups. However, members of the scheduled castes and scheduled tribes have 22% and 7.5% reservation to educational institutions.
10. The Status of Women
The Constitution of India, adopted in November 1949, contains several articles mandating equality and non-discrimination on the grounds of sex, however several laws that violate this principle continue to exist, particularly in the area of family law and personal law. So far there have been minor reforms in Hindu personal law, however, these changes have been motivated by political expediency and have resulted in the denial of womens’ equal rights.
Though the Government of India has signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) it also 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 on 9 July 1993 and is now obligated 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 dictates.
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 never 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.
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.(32)
Women are very vulnerable in armed conflict situations. In Kashmir there have been numerous reports of custodial rape, committed with impunity, by the Border Security Force personnel. The same is true of the North-East, a region torn by militancy.
On 5 February 1996, Opposition Tripura Upajati Juba Samiti (TUJS) staged ten-hour mass sit-in demonstration in front of the Takarjala Police Station in West Tripura district to press for the resignation of Home Minister Mr Samar Chowdhury and punishment to the guilty Tripura State Rifles (TSR) policemen in the alleged physical assault of 11 tribal women. The TUJS alleged that of the 11 women, three were also criminally assaulted by TSR policemen during a so-called search operation conducted to nab militants around the Takarajala Police Station areas.(33)
Ms Bula Sinha, 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 their 501-hour rail roko agitation demanding introduction of the Bishnupuriya Manipuri language in the primary schools of the State.(34)
The State Government of Uttar Pradesh has 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 passed strictures against the officials 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.
Besides ensuring the strict compliance of the high court verdict regarding compensation to the victims of atrocities, the committee would also ensure the implementation of observations regarding development of the Uttarakhand region.(35)
On the morning of 28 May 1996, the village of Patwaw in Budgam district of Central Kashmir, was visited by personnel of the Rashtriya Rifles (National Rifles- a new internal security force officered by personnel of the regular Indian Army) stationed at Budgam town. The personnel were led by a Captain B L Dhoot. They searched the houses in the village and finding nothing incriminating, they left.
They returned the next morning that is 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 only 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 been observing the SAHRDC researcher for some time making enquiries from voters, came up to him and informed him of the incident. SAHRDC visited the village the next morning, i.e. 31 May 1996. The SAHRDC researcher was accompanied by Mr Tiziano Terzani, the New Delhi based correspondent of the German Weekly “Der Spiegel”. As SAHRDC was interviewing the village elders, it learnt that the Deputy Commissioner of the area, one Mr Naik accompanied by the Senior Superintendent of Police had visited the area earlier that morning to investigate the complaint of rape.
The village of Patwaw, is inhabited by those professing the Shia persuasion of Islam. 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.
SAHRDC is cognizant that when medical examinations are not done evidence of rape is difficult to substantiate. 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 Rifles personnel any more. They said that filing an FIR would only invite further unwanted attention from the personnel of the Rashtriya Rifles.
SAHRDC’s attempts to contact the Deputy Commissioner on the phone from Srinagar evoked no response.
11. Bonded and Child Labor
“Her 2 month-old son was snatched away from her and flung out of the room into the cold January night as four men took turns to rape her. After satiating themselves, they threw her out of the room and she stumbled over the body of the toddler, who could not withstand the cold winds and the impact of the fall and had died” – the condition of a bonded laborer women.
After the Supreme Court ordered the Haryana police to take action on a complaint, a gruesome tale of torture of bonded laborers in a brick kiln near Rohtak, Haryana came to light.
The 13 families were “bought” by the kiln owner for almost Rs 43,000 from a contractor who brought them from their village in Shyanli, Uttar Pradesh promising them a better life and higher wages. For three months they were shunted from one kiln to another, all owned by Vijendra Singh. In November 1995, they were brought to the Hassangarh kiln and the sordid saga began almost immediately.
“At first, we protested. We even refused to go to the kiln but they had bought us, and beat us mercilessly. Our children were beaten up and naturally, all our defenses crumbled,” a victim said. But the desire to resist did not die. “Babuji, whenever we got an opportunity we tried to escape. More than for ourselves, we wanted our children to get out of that hell,” one woman told at the Sampla police station in Rohtak. (36)
On 14 February 1996, the Supreme Court asked Labor Commissioner Ashok Kapur and Deputy Commissioner of Police (West) Deepak Mishra to investigate a newspaper report that 2,000 electroplating units in Subhash Nagar, New Delhi were employing child labor on meager daily wages between Rs 8 and Rs 10.
Justice Kuldip Singh and G B Pattanayak asked Mr Kapur to report to the court in a week’s time and directed that Mr Mishra assure the children involved and their parents about their safety so that the child laborers from UP and Bihar were not whisked out of the city. (37)
Most of India’s estimated 200 million child laborers are agricultural workers, helping cultivate the family land, helping care 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 labor are alarming, the Labor 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 labor 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 Labor (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 Neera Burra, a researcher on child labor issues, many of the so-called hazardous industries which employ children are in fact subsidized by the Government of India. The government should initiate labor negotiations at the subsidy level, she says, rather than rely on the ineffective labor enforcement machinery to curb the employment of children.
By omission in the Child Labor (Regulation and Prohibition) Act, child labor in agriculture, the sector which employs the most children (particularly during harvest season) is completely unregulated. Though many children are required to help in the family’s farming activities, children who are hired away from the family or are bonded to another landowner 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 Joseph Gathia, of the Centre of Concern for Child Labor (CCFL), a Delhi-based NGO that has set up several non-formal education programmes for working children, poverty alone does not compel parents to force their children to work, lack of a sound educational infrastructure is part of the problem. Parents feel that children, especially girls, do not learn anything useful in school. For this reason non-formal education classes take an integrated approach; teaching reading and writing followed by vocational training, health education and social skills. Even those children allowed to attend non-formal classes must continue to supplement the family income.
Though the Government of India has repeatedly pledged it’s commitment to end child labor, 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 carpet industry in India earns more than $ 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 labor. The Foundation monitors and certifies that manufacturers who are producing all of their carpet yardage on
looms operated by adults. Surprise inspections are meant to ensure that the factories are child-labor 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, has issued a new label, “Kaleen”, which will alert buyers and consumers to “child-friendly” carpets. According to Mr 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 Labor (Prohibition and Regulation) Act of 1986 prohibits the use of child labor in the carpet industry. If the government is, as it claims to be, “unswerving in it’s commitment to end child labor in the carpet industry”, then why is a special “child-free” label required. Enforcement of the existing laws would go a long way toward ending child labor 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 says 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 the essential vulnerability of the child. The needs of children should be given the highest priority in the allocation of resources. It obligates the state to respect and 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 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 amend the Constitution in conformity with its agreement to the provisions of the CRC. Lack of political will has left a proposed amendment to the Child Labor (Prohibition and Regulation) Act pending before Parliament for more than a year. This amendment aims to close the loopholes which are defiantly abused by employers, factory owners, labor inspectors, doctors, and district authorities on a regular basis.
The Child Labor (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 manufacture of matches and fireworks, bidis, carpets, and the construction industry. Blatant violation of this law, and the spirit of the Constitution, the CRC, and the Universal Declaration of Human Rights, takes place every day across the country. According to a 1991 UNICEF report, an estimated 75 million children in India are out of school. Though 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 850 crore, earmarked for the abolition of child labor before the year 2000, will ever find its way into legitimate funds and programmes, or that child labor will be totally eradicated by the year 2000.
12. The State and Human Rights Groups
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 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.
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.
So-called subversive activities can be categorized under two headings:
- critical reappraisal of development policies of the government.
- promotion of freedom for voluntary action.
- The most common forms of harassment indulged in by the government are:
- Bureaucratic harassment such as the mandatory registration of organizations, frequent surveillance under the Foreign Contribution Regulation Act (FCRA); denial and withdrawal of registration; undue investigations and enquiries; Intelligence 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.
- 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.
- Also common is harassment by the police and local vested interests: detention, interrogations, and the disruption of meetings as well as threats of, and actual bodily harm, sometimes culminating in murder.
Assaults on Human Rights Groups
The approach of the Indian state towards the human rights groups in India is predominantly coercive. The state tends to resort unduly harsh and repressive measures against the human rights groups. Since the mid-1980s there has been an alarming rise in physical assaults on the human rights groups in India. Human rights groups in India work under a tremendous amount of pressure, primarily from the state, on the one hand, and the other groups with a stake in maintaining the status quo.
All civil liberties must work under government surveillance if not the threat of violence. Peoples Union for Democratic Rights and the Peoples Union for Civil Liberties have been harassed for their report on the 1984 violence against Sikhs in Delhi. The Citizens For Democracy (CFD) were banned for their report on Punjab; the report writers were harassed and arrested. The CPDR witnessed a crack down for trying to voice the demands of the displaced persons as a result of dams in Maharashtra. Activists in the Andhra Pradesh Civil Liberties Committee (APCLC) were brutally attacked for their anti-government activities. These are all examples of government sanctioned lawlessness that arises from peaceful but critical attacks on the administration of India’s so-called democracy.
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.
On 17 May 1996, journalist and human rights activist, Mr Parag Kumar Das was shot by unidentified gunmen in Guwahati, in the northeastern 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.
Das was also General Secretary of the Assamese human rights organization Manab Adhikar Sangram Samiti (MASS) and publisher of its monthly newsletter, “Voice of MASS”, which documented human rights abuses by police forces in the strife-torn state. A proponent of self-rule for Assam, Das had recently published an interview in “Asomiya Pratidin” with the leader of the separatist group United Liberation Front of Assam (ULFA). Mr Das’s colleagues in Assam suspect that his assassination was carried out by a splinter group of the ULFA that allegedly has ties to the previous administration in Assam.
Mr Das was arrested earlier twice in March 1992 and February 1993, under the National Security Law and the Terrorist and Disruptive Activities (Prevention) Act. The laws, which allowed 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, Chairman of the Kashmir Commission of Jurists, was picked up by Rashtriya Rifles jawans on 8 March 1996 shortly before he was to leave for a UN human rights meeting in Geneva. The vigilante groups had earlier attempted twice to kidnap Mr Andrabi. South Asia Human Rights Documentation Centre raised the issue of physical safety of Mr Andrabi with the National Human Rights Commission and India’s Ministry of Home Affairs. However, SAHRDC was not informed of any action taken in this regard. A First Information Report 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 was brutally tortured and his eyes had been gouged out.
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 had 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 filing a habeas corpus petition in the Supreme Court. His whereabouts were unknown and he is presumed to have been extrajudicially executed.
Mr Sheikh Mohammad Ashraf, President of the Baramulla branch of the Jammu and Kashmir Bar Association, which regularly documented abuses by Indian security forces, was arrested by the Rashtriya Rifles unit of the Indian army on the night of 15 June 1995. He was released on 9 September 1995. Throughout his detention, his family was denied access to him.
On 1 May 1995, Mohammad Ashraf, an advocate at the High Court in Srinagar, was reportedly arrested and charged under the Public Safety Act, 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, Qayoom had vigorously investigated human rights violations by Indian security forces in Kashmir.
The crucial test for democracy is accountability of the elected representatives to the people at large who elect them and to the institutions of democracy. The accountability is not to be enforced only at the time of elections but it is a continuous feature that should govern the relationship between the elected representatives and the electorate. Unfortunately, this concept of accountability has not adequately developed in India. It is primarily due to the large size of the constituencies and the social and educational backwardness of the electorate. In India, accountability exists mainly to the parties and the elected representatives rarely feel obliged to ascertain the views of the electorate. The Indian Parliament has a membership of about 550 representatives for a population of 850 million people.
The elected government will be truly a government by the people when it genuinely reflects the views of the electorate. The voter in a representative democracy has a continuing role to play in the process of governance by expressing their view on various issues. This type of participatory democracy is not yet developed in India. Most of the voters feel that their duty is fulfilled by exercising their vote at the time of elections. This reduces their role to one of casting their votes whenever elections are held and in this process democracy degenerates into a government of the few in the name of the people.
13. Endnotes
1. The Hindu, 7 February 1996, New Delhi.
2. The Hindu, 22 March 1996, New Delhi
3. The Sentinel, Guwahati, 6 February 1996.
4. The Telegraph, Calcutta, 7 February, 1996
5. The Sentinel, Guwahati, 8 March 1996
6. The Telegraph, Calcutta, 6 February 1996.
7. The Telegraph, 21 February 1996, Calcutta.
8. The Telegraph, Calcutta, 24 February 1996.
9. The Telegraph, Calcutta, 28 February 1996
10. The Hindustan Times, New Delhi, 4 March 1996.
11. The Hindustan Times, New Delhi, 15 March 1996.
12. The Sunday Observer, 3 March 1996, New Delhi & Mumbai.
13. Newstime, 3 March 1996, Hyderabad, Andhra Prasad
14. The Hindustan Times, New Delhi, 18 February 1996.
15. The Sunday Tribune, Chandigarh, 24 March 1996.
16. The Pioneer, New Delhi, 22 March 1996.
17. The Telegraph, Calcutta, 22 February 1996
18. The Hindu, New Delhi, 25 March 1996
19. Telegraph, Calcutta, 28 April 1995
20. The Indian Express, New Delhi, 5 June 1996.
21. The Hindu, New Delhi, 1 March 1996
22. Telegraph, Calcutta, 20 January 1995.
23. The Pioneer, New Delhi, 22 March 1996.
24. The Hindustan Times, 4 March 1996, New Delhi
25. The Tribune, Chandigarh, 21 April 1996
26. The Hindu, Delhi, 8 March 1996.
27. The Pioneer, New Delhi, 22 March 1996
28. The Telegraph, Calcutta, 26 April 1995
29. The Hindustan Times, New Delhi, 9 June 1996.
30. The Hindu, Delhi, 8 March 1996.
31. The Hindu, Delhi, 8 March, 1996.
32. The Times of India, New Delhi, 19 May 1995.
33. The Sentinel, Guwahati, 6 February 1996.
34. The Sentinel, Guwahati, 17 March 1996
35. The Economic Times, New Delhi, 15 February 1996
36. Indian Express, New Delhi, 8 February 1996
37. The Pioneer, New Delhi, 15 February 1996.