Archive for the ‘Article’ Category

The price of tea from death valley

September 20, 2013
  • AMANDA HODGE IN BARAK VALLEY, ASSAM
  • From: The Australian
  • August 31, 2013

AS India’s well-fed politicians bickered over a proposed Right to Food bill this week in New Delhi, workers in some of northeast Assam’s most remote tea gardens were literally starving on their feet.

Family of a tea labourer in the Bhuvan valley tea garden live here. This is their home.

Family of a tea labourer in the Bhuvan valley tea garden live here. This is their home.

In seven months last year, 34 people died of starvation or malnutrition-linked diseases on a single tea estate, Bhuvan Valley in southern Barak Valley, when owners temporarily shut operations and stopped paying workers for demanding better conditions and eight months of owed wages.

“It was more like Death Valley than Bhuvan Valley. People were dying from one house to another,” says Prasenjit Biswas, who chairs the Barak Human Rights Protection Committee that brought the issue to the attention of authorities. Under pressure from the government and National Human Rights Commission, the owners restarted operations but the deaths have continued.

From the roadside, Bhuvan Valley looks just like the gardens of Eden on the tea packets from which so many Australians brew their tea; flashes of colourful saris amid land lakes of topiaried green that seem to levitate above hillocks and plains.

It is less picturesque up close.

As tired, bony women file from the gardens at dusk, Mannu Ravidas, a casual tea labourer, waits for his wife.

Like most of the workers here he was born on the estate, descended from the original tribal workers trafficked to Assam from central India during British rule.

His ribs protrude from his body and his legs bow outwards in the tell-tale sign of rickets, a common affliction among workers.

Ravidas, 50, says during last year’s closure his family “went hungry every day”, and his father eventually died.

“We are still hungry,” he says. “We eat rice and roti two times a day. One meal is full, the other half. We give my two children more than we eat ourselves but things are much worse than they used to be. When they were small they did not need so much.”

His wife is the only permanent tea labourer in the family. She receives 72 rupees ($1.20) a day, and weekly subsidised rations of 5kg of rice and 3kg of flour that looks like sawdust.

To supplement her meagre income, Ravidas buys sacks of rice and resells them by the roadside.

“So many people fell sick and died, including children,” says Champa, who heads the garden’s women’s panchayat (council).

“Things improved a little when the new manager came but now he has gone and we’re worried. He tried to get a doctor for the dispensary here, and for the owner to pay us the money he owes, but the owner refused so he left.”

The same thing happened before last year’s deaths and workers here are again frantic with worry.

With no manager to endorse their daily pickings, how will they be paid?

Assam produces half a million tonnes of strong black tea annually, filling the tea bags of some of the most recognised tea brands sold in Australia, including Liptons, Twinings and Tetley. It represents half of India’s total tea production.

Trying to understand the anachronistic slavery like labour system and working conditions of labourers in tea industry in Assam that drive them to starvation deaths. In Bhuvan valley tea estate on 19 August 2013 Waliullah Ahmed Laskar, Amanda Hodge and Dr Prasenjit Biswas. — at Bhuvan valley Tea Estate, Cachar, Assam.

Trying to understand the anachronistic slavery like labour system and working conditions of labourers in tea industry in Assam that drive them to starvation deaths. In Bhuvan valley tea estate on 19 August 2013 Waliullah Ahmed Laskar, Amanda Hodge and Dr Prasenjit Biswas. — at Bhuvan valley Tea Estate, Cachar, Assam.

But declining productivity — and hence profits — in many Assamese tea gardens has had an alarming impact on the health and living standards of tea workers. Barak Valley has the lowest-paid tea workers in India, with a minimum wage of R72 a day — less than half the federally mandated minimum daily wage of R158.54 and at least R12 less than workers in neighbouring valleys.

Estate owners say the rest of the wage is paid in kind, through the provision of housing, pensions, food rations and proper healthcare — services they are compelled to provide under the Tea Plantation Labourers’ Act.

In reality, many estates fail to deliver even basic services such as clean water, and owe their workers millions in unpaid wages.

Fair Trade Australia spokesman Nick Tabart says while consumers have successfully pressured the coffee and chocolate industries into improving wages and conditions, the tea industry lags way behind. Of 900-odd tea gardens in Assam, nine are Fair Trade certified.

“We’re well aware that (Assam) is a region that requires attention,” he told The Weekend Australian.

But the biggest barrier to securing living wages on tea estates is decades of low prices, underinvestment by tea estate owners and a “difficult legacy” of bonded labour.

Nirmal Bin’s wife Basanti was 33 when she died on July 30 after a four-month illness. She was a permanent Bhuvan Valley tea worker and so entitled to medicines from the garden’s “dispensary” (just an outbuilding tacked on to an overgrown ruin) to treat her diagnosed kidney disease. “But they would only give us paracetamol,” he says.

Many retirees on the estate have been forced back to work because owners refuse to pay out their pensions from the state’s Provident Fund — money deducted from wages that should have been accruing over decades.

Tea garden owners are required to match that sum each week but the union admits proprietors of Bhuvan Valley and at least nine other local gardens have not done so.

“Their wages are very low, there are no other facilities, housing, medicine, drinking water,” says BN Kurmi, a union official based in the regional capital of Silchar. “If we are more strict then (the owners) will close the gardens and then again the starvation will come.”

Kurmi admits many workers are exploited and that the union “failed” the starving labourers of Bhuvan Valley last year.

It is still failing them.

Behind the dispensary, Imti Rani Dushad is awaiting a pension payout following the death of her husband last year from tuberculosis, which he probably contracted from the canal water that workers relied on until a water treatment plant was finally built a few years ago.

He died inside the dirt-floor hut in which she must now raise their five children alone. The long-closed dispensary reopened a week later.

Now her greatest fear is that she too will fall ill.

“There’s no hope for me or my children,” she says. “How can I improve our condition? My neighbours can’t help me. Their condition is as bad as mine. Except for human sympathy they can’t offer anything.”

In another hut, Sri Charam Baruri nursed his dying mother last year. Her death was long and painful but he doesn’t know what killed her.

His wife, the mother of four children, died a few months earlier, from another mystery cause that may have been meningitis.

In the looming dark — there is no electricity — worker after worker comes forward to tell of their losses.

India’s federal Tea Board says many of the 109 tea gardens of Barak Valley have been neglected by the tea owners, who lease the land from the state.

“We’re focused on helping them improve methods and quality,” says R Kujur, the board’s assistant director in Silchar, though workers’ welfare is a “state government concern”.

To rejuvenate declining tea estates the Tea Board is offering up to R80,000 per hectare to gardens willing to pull unproductive bushes and plant better performing varieties. Aware that publicity of shocking labour conditions — combined with a slide in tea quality — can hurt the industry, it has introduced a certification scheme and is pushing for proprietors to sign on.

“It will take time to motivate the owners and labourer but I can assure you that within three years you will see a huge difference,” Kujur says.

Bhuvan Valley is replanting 20ha of bushes but the Tea Board is still working to get gardens like Craig Park on board. The once grand estate’s tea bushes are producing 50 per cent less leaves than a decade ago.

The district’s deputy commissioner described conditions at Craig Park as a “sorry state of affairs” and noted many workers had died while awaiting retirement payouts. Labourers fear the garden will eventually be closed.

If that happens, thousands of workers will be forced off the land — with nothing to show for generations of cheap toil.

Published at The Australian and available at http://www.theaustralian.com.au/news/world/the-price-of-tea-from-death-valley/story-fnb1brze-1226707856072#sthash.9pLYjpRk.dpuf

Assam: After violence, anxieties of land and identity are still haunting the people

October 18, 2012

The Times of India

Harsh Mander

Although Assam has disappeared from the front pages of national newspapers, large populations still live in makeshift, underserved camps, racked by memory, fear and uncertainty, with little prospect of an early return to their homelands. Legitimate anxieties of land and identity have acquired an urgent grammar of violence and hate, and irreconcilable divisions have grown further between estranged communities.

Photo: thenational.ae

Photo: thenational.ae

During my journey to relief camps in Dhubri, Chirang and Kokrajhar, housed in the classrooms and courtyards of schools, I found that government had ensured basic food rations and primary healthcare services. For the rest, people mainly had to fend for themselves. There was no bedding, no mosquito nets, toilets were scant and choked, and there was little water for drinking and bathing. People who had fled their burning villages or rampaging mobs had few clothes or utensils. Children were the worst hit. There were no child care services, or temporary schooling. Everywhere i found a longing to return home.

The stories we heard in both Bodo and Bengali Muslim camps were disturbingly similar, of neighbours turning into murderous mobs, of torched and ransacked homes, of looted livestock, and of fearful flight. Many escaped only in fear, even though their settlements were not attacked, and in these villages, men return to guard their homes and fields, leaving the women and children in camps.

There are legitimate anxieties and grievances on both sides of the dispute. Udoyon Misra writes eloquently of the ‘ever so heavy’ burdens of history of indigenous Assamese peoples like the Bodos, of ‘land, immigration, demographic change and identity’. He describes massive land alienation of the Bodo plains tribal people who were shifting cultivators with few land records, by industrious and aggressive Bengali Muslim immigrant cultivators.

Successive governments in both the state and the Centre have failed to effectively seal borders, and to identify and repatriate illegal immigrants. The Bodos worry also about being culturally swamped in their traditional homelands, not just by Bengali Muslims but also other communities such as the caste Hindu Assamese, Koch-rajbanshis, Santhals and Bengali Hindus.

Photo: samaylive.com

Photo: samaylive.com

The Bodo accord of 1993, which belatedly gave administrative autonomy to the Bodo people in their traditional homelands in which they already were reduced to a minority, unfortunately also created an incentive for driving out people of other communities and ethnicities. The first attacks by armed Bodo militants on Bengali Muslims occurred in 1993 itself, and these have recurred sporadically against also Santhal adivasis, who are descendants of tea garden workers who migrated centuries back. Clashes occurred in 1994, 1996, 1998 and 1999. Around one and a half lakh people displaced by these clashes – both Bengali Muslim and Santhal – continue to live in camps up to the present day, an entire generation of forgotten internal refugees with no home. The government took no decisive steps to help these refugees return to their homelands.

This remains a festering wound on the psyche of the Bengali Muslim, as also the fact that not a single person has been persecuted for the gruesome slaughter mounted in Nellie in 1983. They complain that all Bengali Muslims are tainted as Bangladeshi illegal immigrants, whereas demographers confirm that only a small fraction of the immigrants are actually illegal settlers who slipped into the state after the agreed cut-off date of 1973. Many have learnt Assamese, and wish to be accepted as legitimate Assamese citizens.

This already fraught environment, of legitimate competing anxieties and grievances of diverse communities, has deteriorated sharply because of the implicit legitimisation of violence as a means to resolve these competing claims. People sympathetic to the concern of Bodos and other indigenous tribal communities suggest that the violence to which they have resorted in recent decades is unfortunate but understandable. This is rendered more dangerous because of the easy availability of sophisticated arms among the surrendered Bodo militants, who were never effectively disarmed.

On the other hand, apologists for the Bengali Muslim violence justify it as being ‘only retaliatory’. This is slippery ethical territory, because the same argument was used to justify the post-Godhra massacre, as well as the slaughter of Sikhs after Indira Gandhi’s assassination. There is disturbing evidence of growing radicalisation of a small section of the Assamese Bengali Muslim, of a kind which was remarkably absent among the victims of the Gujarat violence. The latter have remained unshakably committed to the democratic, legal and non-violent resolution of their grievances, despite the brutal slaughter and systematic subversion of justice and reconciliation by the leadership thereafter.

BTAD Assam (Courtesy IDSA)

BTAD Assam (Courtesy IDSA)

There are wide demands today that only those Bengali Muslims in relief camps should be allowed to return home who can first prove their legal status. The acceptance of this demand would further incentivise the mass violence which resulted in their displacement in the first place. There isno doubt that the rights of indigenous communities to their land, forests and culture need to be defended, and illegal immigration effectively blocked.

But there should be no compromise, even by implication, with violence as a means to achieve these demands. People in both new and old camps must first be res-tored to their homelands unconditionally, and assisted in rebuilding their houses and livelihoods. Only then should a just and caring state intervene to ensure that the legitimate concerns of both indigenous people and settlers are met, by processes which are lawful, humane and non-violent.

The writer is a social activist.


First published in the Times of India and is available herehttp://timesofindia.indiatimes.com/home/opinion/edit-page/Violence-in-Assam-has-subsided-but-anxieties-of-land-and-identity-are-still-haunting-the-people/articleshow/16855324.cms

Assam: The displaced Reangs in Hailakandi district

October 3, 2012

The Reangs are a tribe mostly living in Mizoram state of North East India. They are also known as Brus.  Their displacement is mainly the result of the ethnic clash with the dominant Mizos in Mizoram.

In this Article (The Displaced Reangs in Hailakandi Districtby Abdul Mannan Mazumder and Bornali Bhattacharjree, an attempt has been made to reflect briefly on the displacement of this small ethnic group as a good number of Reangs took shelter in the Assam–Mizoram border in the southern-most part of Hailakandi district of Assam in 1997.

The Article was published in an anthology of papers/articles on Internally Displaced Peoples (IDPs) in North East India titled Blisters on their Feet: Tales of Internally Displaced Persons in India’s North East edited by Samir Kumar Das and published by Sage Publications in 2008.

It is posted here only for information of the concerned and interested people and not for any commercial purpose. Readers/viewers are requested to get a copy of the book for reference and other purposes.

(BHRPC does not guarantee the authenticity of the statistics and information cited in the article and the authors/editor/publisher are solely responsible for views expressed.)

To view/read/download click here.

 

 

 

India: Proposed reform in criminal justice administration takes away basic human rights and freedom

August 14, 2012

Forwarded statement

Barak Human Rights Protection Committee (BHRPC) forwards the statement issued by the Asian Human Rights Commission (AHRC) August 13, 2012 on the proposed reforms in criminal justice administration in India that proposes a rights trade-off in the excuse of national security, including the negation of the fundamental right to silence and the presumption of innocence. The principle of ‘preponderance of probabilities’ will find itself introduced into criminal trials to convict a person, rather than the requirement of ‘conclusiveness in proof’, the current norm. Statements made by persons to the police during investigation would become admissible as evidence without adequate verification. Expert opinions would be treated as substantive evidence and not as estimations. The trials of offenses punishable with a maximum sentence below 3 years would be reduced into summary proceedings. The draft policy would allow the state to restrict at whim the very scope of the concepts of freedom of opinion and expression. The freedom of the media to report cases, and expose crimes, including those of corruption at high places, would be relegated to the dustbin of history.

INDIA: Reform dishonesty first

August 13, 2012

The government is again planning to change the criminal justice mainframe of the country. Again, the ruse is that of justice to the people and national security. The proposal is open; its true purpose clandestine. If the 2007 report of the Committee on National Policy on Criminal Justice, chaired by Dr. N.R. Madhava Menon, is what has lead to this reform proposal, heed the sign that reads: caution.

On August 9, Mr. Mullapally Ramachandran, union state minister at the Ministry of Home Affairs, stated in Lok Sabha that his ministry is planning to effect a comprehensive change to the criminal justice landscape of the nation. The minister said the overhaul would include amendments to the Indian Penal Code (1860), the Code of Criminal Procedure (1973), and the Indian Evidence Act (1872), collectively known as the criminal major acts.

The ‘reform’ plans to closely consider proposals made by the Committee chaired by Justice V. S. Malimath on reforms of the Criminal Justice System (2003), and the Draft National Policy on Criminal Justice, submitted to the government by Dr. Menon (2007). The Draft National Policy document is itself, in fact, nothing but a summary of the earlier Malimath Committee report.

Mr. Ramachandran informed the House that his ministry has sent its suggestions to the National Law Commission, with a request that the Commission detail the legislative changes needed to bring about the reforms the ministry have in mind. However, neither did the minister care to elaborate, nor did any Member of Parliament think of demanding, the details concerning the proposed reforms. And, no such information is available in the public domain, even at the Home Ministry’s website.

The minister also failed to inform the house whether there would be any public consultation. Given the precedence, there could be some token consultation. Given the history though, not many civil society groups will participate meaningfully, even if they have knowledge of such consultation. This is because the criminal justice system remains a blind-spot amongst Indian civil society groups. Thus, either way, public at large will not be consulted, even though the ‘reforms’ propose to substantially take away their fundamental freedoms.

If the draft national policy is the guideline for the proposed reforms, soon Indians will find their civil rights substantially curtailed. It is a literal death trap for fundamental freedoms. Telephone conversations and other communications will be intercepted by state agencies, acting with statutory impunity, redefining thus the very notion of privacy and privilege in communications.

The draft policy proposes a rights trade-off in the excuse of national security, including the negation of the fundamental right to silence and the presumption of innocence. The principle of ‘preponderance of probabilities’ will find itself introduced into criminal trials to convict a person, rather than the requirement of ‘conclusiveness in proof’, the current norm. Statements made by persons to the police during investigation would become admissible as evidence without adequate verification. Expert opinions would be treated as substantive evidence and not as estimations. The trials of offenses punishable with a maximum sentence below 3 years would be reduced into summary proceedings. The draft policy would allow the state to restrict at whim the very scope of the concepts of freedom of opinion and expression. The freedom of the media to report cases, and expose crimes, including those of corruption at high places, would be relegated to the dustbin of history.

If the national policy as proposed by Dr. Menon’s committee were to be implemented by requisite legislative and constitutional amendments, the relationship between the state and subjects will be re-defined. The amendments will take away the scope of fair trial, since what the police say would soon become proof for conviction. It will, of course, reduce delays in adjudication. This is because it would hardly leave any need for adjudication. Since the policy does not speak about reforming the police by imposing accountability upon the force, the rich and the powerful will still manage to escape investigation, trials and convictions. The national policy only speaks of awarding more powers to the investigating agencies, which, as it is, today, are selectively used and would remain the same. The government has already spoken its mind in failing to implement the Supreme Court’s directives in the Prakash Singh case, watershed directives towards independence and accountability in the criminal justice system. Continued and shameless ignorance of the Court’s directives on one hand, and the institution of these ‘reforms’ on the other, the country will have to continue contending with the same criminals in uniform, policing the people, the only difference being enormous enhancement in police powers, and consequent reduction of individual freedom. With these changes, India will become a police state.

To justify the draconian proposals, Dr. Menon’s committee has liberally used presumptions and surmises, laced together with weaselly generalisations. The draft policy, as far as addressing issues that have rendered the criminal justice system in India a complete failure goes, is a non sequitur. The committee is of the opinion that the Indian state is ‘soft’, which has rendered crime control impossible in the country, and hence has recommended the changes cited above.

It has, in no uncertain terms, discriminated regions in the country, as ‘terrorist’, where it prescribes the role played by the state as an iron fist as just and right, never-mind the fact that such thinking has only helped worsen the living conditions in these regions, with innumerable instances of human rights abuses committed by state and non-state actors.

The committee has, in unambiguous terms, used exceptions such as terrorist attacks as excuse for the dilution of civil liberties, and has encouraged the state to constitute a national framework that could curtail fundamental freedoms to ensure security. The committee has cited restrictions made in other countries as an excuse to justify similar changes in India, suggesting a subjugation of the intellectual sovereignty that Indians must maintain when legislating. The committee’s opinion of blindly following the ‘global trend’ to restrict freedoms suggests two elementary flaws made by the committee: 1) it shows that the committee’s process was not consultative enough, and 2) it shows how, with a single presumptuous sweep, the committee negates the civil liberty movements in the rest of the world that are fighting against such draconian state controls, and how, with equal contempt, the committee treats the collective intellect of the common Indian person. The committee is sure it knows what liberties India should and should not have.

The Menon Committee’s draft national policy emphatically suggests standardising exceptions into norms. On one occasion it quotes an anonymous lawyer, who, according to the committee, demands drastic changes in legal procedures to mandate that the accused, by law, ‘assist’ the court in testifying against himself / herself. To justify formulation of draconian state control in the name of security, the committee repeatedly uses the term ‘public expectation’ in reference to the duty of the state to provide security even at the cost of fundamental freedoms. However, in reality, the committee never approached the public to seek its views.

The policy document and those who drafted it lack the basic honesty expected of such proposals and bodies. They failed to point out the elephant in the room: that the problems affecting the criminal justice system in the country are deep-rooted corruption within the police and within all tiers of the judiciary; ineptitude; an assortment of crimes, including that of torture, committed by law-enforcement officers with impunity; lack of professionalism and any form of training and opportunities for enforcement officers to cultivate the same; and a close to non-existent prosecutorial framework.

There has been so far no attempt by the government to study these evils that have held the country’s justice apparatus at ransom. Without this, propounding that the public gift away their fundamental freedoms to guarantee security is nothing less than fraud upon the country. The only result will be ensuring the security of tenure for criminals in seats of power in the country. Unwillingness to end the aforementioned issues is what adversely affects justice administration in India. It is not a passive oversight, but an active pursuit, easily apparent if one only considers the minimal resources allocated to justice institutions; today, the judiciary is literally smothered out due to lack of adequate funds.

What is the security a citizen can expect when law-enforcement officers only attract deep contempt from the public and display shameless ineptitude in discharging their duties? What is the meaning of protection when police officers rob money and life out of the people and are more feared for rape and murder than street thugs? Where is the value of civilian law-enforcement when the officers mandated to enforce the law breach all laws possible? What is the meaning of ‘reform’, when the officers of the state who are to be reformed are forced to continue in the public perception as criminals in uniform?

Committees constituted to play background scores to a treachery, not advocating reforms where they are needed, and proposing to filch away even those few, but crucial, freedoms that protect common people today – with or without the protection of their state and its agencies – are the real security threat to the nation. Such committees would suggest anything required by those that constitute them. These committees have nothing in common with the larger mass of the country. They have no understanding of how ordinary Indians struggle daily to survive, protecting themselves from criminals in uniform.

Six or seven clandestine paper presentations held at universities, where the public has no access, cannot be the basis for the formulation of a national policy that could diminish fundamental freedoms in India. But the fact is, such a policy is now in place to be implemented and the term ‘public demand’ is used liberally in the policy document, as an excuse to justify parochial, restrictive and draconian changes to be brought into the national legal mainframe.

Security of life and property of the citizen is directly proportional to what is implied as ‘national security.’ Unlike exceptions of violence sponsored by anti-state entities, every day in the length and breath of the country, fundamental rights of the people are brutally violated by law enforcement agencies, especially the local police. Not a single attempt has been made in the country to criminalise violence committed by law enforcement agencies, often in the name of social control, and crime investigation.

Every police station in India routinely practices torture. It is performed publicly, without any form of legislative or practical control. Police officers and policy-makers equally believe that torture is an acceptable means of crime investigation. Just as it is done in the Menon Committee, the country has failed to treat this single fatal cancer, something that has rendered the entire police service in India as nothing more than a group of uniformed thugs lacking moral and operation discipline.

Conditions are far worse when it comes to paramilitary units stationed along the borders and in areas where they are deployed to assist state administrations, like in Manipur, Jammu and Kashmir, and West Bengal. There is no data available in the public domain as to what actions are initiated upon complaints of human rights abuses committed by these forces. As per the information collated by the Asian Human Rights Commission (AHRC), there is little doubt that the Border Security Force (BSF) stationed along the Indo-Bangladesh border is a threat to national security. They engage in crimes like rape, torture and extrajudicial execution in routine. The BSF is a demoralised and corrupt force that engages in all forms of corruption, including anchoring trans-border smuggling.

If national security is of any importance, law enforcement agencies must be held accountable, as must members of submissive and myopic committees that advance dangerous proposals, set to further harm lives of their country-men.

Information provided at the National Bureau of Crime Records for the past several years only advances this argument further. According to the Bureau, in 2011 there were only 72 reported cases of human rights abuses alleged against the police in the entire country. Out of this only 7 were cases of alleged torture. There were only 6 cases of illegal arrest and detention, and only 1 and 3 cases of alleged extortion were reported from Punjab and Delhi, respectively. In states like Assam, Bihar, Goa, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland, Orissa, Sikkim and Tripura there were no cases of human rights abuses registered for the year! To say that the statistics mock reality would be an understatement.

India does need reform. It should begin with ending the practice of shameless lying.

# # #
For information and comments contact: 
In Hong Kong: Bijo Francis, Telephone: +852 – 26986339, Email: india@ahrc.asia

The statement can be accessed on the AHRC website at http://www.humanrights.asia/news/ahrc-news/AHRC-STM-162-2012

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Assam: Heal thy injuries in/ of Bodoland

August 10, 2012

Dr. Prasenjit Biswas*

In the fragmented imagination of a homeland in ethnic territories of Assam, comparatively later migrants are perceived and portrayed as a demographic threat. The issue is whether a majoritarian ethnic ownership over land and territory need to portray the presence of migrants as necessarily illegal. The issue keeps the ethnic pots boiling much after there is a cut-off criterion is drawn out in Assam Accord, 1985 as well as in the Bodoland Territorial Council (BTC) Accord, 2003. Both these accords emphasized on the protection and preservation of Assam’s indigenous communities against any endangerment; demographic, loss of land to ‘outsiders’ and ‘foreigners’ and above all, assured political power to the governing elites of the indigenous communities. Such Statist concession made middle class Assamese and Bodo Indigenous nationalism aim at a greater share over power and resources by way of protective discrimination and by going to the extent of denial of legitimate package of rights of others. Such significant others include immediate neighbours: Santhals and Minority Bengali Muslims both clubbed as illegitimate migrants in indigenous land, who have to face a continuous othering in the domains of politics, culture and even in employment.

Photo: samaylive.com

Photo: samaylive.com

The logic advanced for the illegitimacy of immigrants’ rights extends from their being latecomers to attribution of conscious demographic invasion by them to a paradoxical exclusivist claim over certain powers and resources with its corresponding denial to any claims-making by the ethnically different and the immigrants only produce irreconcilable fragmentation. Right now three out of four Bodoland Territorial Areas Districts and its adjoining minority dominated Dhubri district are in a state of bloodletting, communal killings and massive displacement of population. Vulnerable segments of both the Bodo and the Bengali Muslim communities are physically and emotionally brutalized, many are internally displaced and many see no hope of ending ethnic hatred and competitive barbs of aggression and victimization. Apparently conflicting members of both the sides are now caught on the point of no return and as long as they cannot return to their homes, the fear of the other could be given a xenophobic hall-of-mirror effect. The fear that indigenous Bodos are outnumbered and endangered cannot be pathologized without keeping the vulnerable indigenous masses in camps. Similarly, for keeping the Bengali Muslims in a pathological state, recurrent incidents of violence would completely demoralize and uproot them from whatever little legitimacy they enjoyed in the shared lived space with Bodos.

Magnification of such fear among the displaced by demonizing them as untrusworthy and treacherous will create a further divisive and communally charged politics and culture of survivorship. Drawing a thick line between survivors of Bodoland clashes with ineffective political and economic rights is an extra-Constitutional means , which is supposed to serve unrestrained group rights. Such a feeling is expressed by some Bodo leaders when they say those who live in Bodoland must accept the leadership of the Bodos, an exercise of dominant identity-based leadership. Indeed such a leadership has been accepted by all the non-Bodos with some amount of reservation. The bone of contention between the Bodo leadership and the Bengali Muslim leadership in presenting the number of camp dwellers assumed a shrill denial of the proportion of displacement by calling it an attempt to rehabilitate those who are not genuine victims from Bodoland area.

If victims lose genuine-ity just because they are displaced and are living in camps in adjoining places such as Dhubri, Bilasipara or Bongaigaon, isn’t the ethnic hatred marring the way of restoration of justice, honour and peace for the victims? Denial of the rights of the internally displaced Bengali Muslim populace in terms of the right to return by targeting them by selective armed violence is totally unacceptable by any human rights standards. The core value of shared citizenship, then, stands completely negated.

Photo: Thehindu.com

Photo: Thehindu.com

Some amount of counter-violence from the victims in such a troubled situation can fuel greater violence and displacement. Indeed varying degrees of such counter-violence, starting from mob killing of four gun wielding Bodo attackers to burning down of Bodo homes in areas dominated by Muslim Bengalis certainly alienated a large scetion of Bodos from Bengali Muslims. Further, such counter-violence created a great opportunity for ex-militants to wield their might, whom the government so far could not tackle with its local police and central paramilitary forces. Such targeted unrestrained attacks on Muslim Bengalis have gone much beyond retribution and retaliation now. Holding on illegal deposit of arms to target victims is another trait of ethnic supremacy apart from legitimate hold over power and resources. BTAD conflict shows the uncanny power of holding small arms and their use in securing advantage in an unequal hit back campaign against the immigrants.

Obviously winners take it all. If land is major concern then occupying land vacated by Muslim villagers and the use of arms in displacing them reveal high profile pecuniary interest of land grab. While one is concerned about saving the tribal land and probably would like to see full land rights under Sixth Schedule be restituted to Bodos, can one agree with the perverse and diabolic designs of land grab by displacing a victim of violence under the pretext of securing land rights for the indigenous? One of the Assam legislative assembly members alleged that demolition work is going on in those plots where burnt down houses of immigrants stand. Are we going to see high-rises in those waving paddy fields, which ironically this year would only reap the harvest of ethnic clashes and no rice of togetherness for Bodos and immigrants.

When does affirmation of group rights under protective discrimination become a license to deny neighbour’s basic human rights, especially in creating adverse conditions of loss of dignity and infliction of humiliation? Group rights based on territoriality, descent and origin cannot form a basis of denial of citizenship rights of the riot displaced vulnerable population of a certain ethnic and religious origin, just because they are not us.

Photo: thenational.ae

Photo: thenational.ae

From the point of view of the displaced victim, the Other is the aggressor and if the victim could be dubbed as an encroacher, it makes them soft targets without any claim to justice and rights even when their rights are flagrantly violated. Those who uphold rights of indigenous groups cannot be disrespectful of the right to life and dignity of even the non-citizen. The question of greater privilege enjoyed by immigrants does not arise as such a situation is completely counter-intuitive with some exception of some prosperous individuals from non-indigenous social groups. Although none of the displaced victims from both Bodo indigenous and immigrant community dare to think of any comparative post-riot advantage to follow from such differential treatment, yet the misconception of a forced eviction of the immigrant is growing in the name of ensuring land rights to Bodos.

By adopting a language-game of difference and othering in the discourse of indigenous rights, greater the offensive against the Other, the greater is the use of mendacity: as if one is experimenting with the possibility of greater victimization going beyond camps, deportation and other non-humanitarian and yet legal means- as if a ranging lawlessness is instituted within the apparatus of the law, as if violence is the law. In such a situation justice for the violated is never an issue, the only issue is Lebensraum for an ethnic homeland. More seriously, is the political and cultural imagination of a separate Bodoland fitting into the notion of a unified Assam? Or Assam’s unequal, asymmetric and uneven ethnic plurality needs to reduce itself to enclaves of ghettoized homogeneity, xenophobia and sameness of identity? Can’t the identity be plural and deterritorialized and can’t it accept an outside political and cultural space that is different from itself? There could be two specific reasons for not accepting such a doctrinaire pluralism: one that the majority, if there is any, is yet not ready to accept that there are others and two, Others are unacceptable because they would demand their legitimate share from what one thinks as one’s sole privilege. Such is the blind, almost bordering on hatred campaign against those who have been there for three generations in today’s Bodo areas. When the constitutional means are available to ensure protective discrimination in terms of full political power with the Bodo community, where is the fear?

Photo courtesy: Jagaran.com

Photo courtesy: Jagaran.com

So, Indian Muslims are termed as Bangladeshis with a motive to undermine them. Let a single person killed be proven as a Bangladeshi. Non-Indigenous people in Bodoland are not Bangladeshis, as they have not migrated there after constitution of BTAD. The BTAD was constituted and Bodo leadership accepted the presence of this segment of people and they got also elected by their votes in assembly and parliament. One can understand the apparent rage that was generated after killing of four Bodo ex-cadres of the Bodo Liberation Tigers, erstwhile Bodo armed outfit. Isn’t it possible to understand each other’s agony and pain without taking resort to hatred and violence?

What could be achievements of killing innocent victims? Can we break away from a process of ethnic co-existence and reciprocity just because there are few cases of violence? Can we sacrifice the sense of belonging together? Drawing a line between genuine Indian citizens and illegal immigrants became a provocation to such breakdown of ethnic relations. It is the job of the State, to uphold the rule of law and prevent any attempt to assume due process of law in one’s hand. Quite like the Gujarat riots of 2002, the state machinery is still not able to intervene effectively in terms of restoring confidence in the displaced people. The irresponsible and mindless acts of violence against defenceless indigenous and migrants propelled by violence-countre-violence vicious cycle can only turn Bodoland into a disturbed area and there’s no gainsaying that human security will be its worst fall out.

* The writer is Director, Research, Barak Human Rights Protection Committee (BHRPC), Silchar, Assam.

Assam Clashes: From Humanitarian Crisis to Ethnic Pluralism

August 6, 2012

Prasenjit Biswas*

The perpetual fear in the eyes of 126 years old Jagat Basumatary and his wife Malati Basumatary in a camp 70 kms away from their home located at Bengtoli village of Chirang district tells it all. Jagat Basumatary’s appeal for peace and tranquility in the midst of attack and counter-attack raises a concern for mutual respect and bond between Bodos and Bengali Muslims. The apparent difference of identity between an immigrant Bengali Muslim and a Bodo indigenous person gets dissolved in the remarkable story of Parbotjhora subdivisional area of Kokrajhar where both the sides resisted any attempt to disturb peace. So also goes the example of Kukurmari village at Chirang district where both the communites stood guard at each other’s doors.

Assam map

Assam map

Among the most dastardly attacks on human dignity and persona is the one in which Sumana Basumatary, a woman in her late thirties had to leave her house at Salkocha-Bansbari at Kokrajhar district with two of her minor children leaving behind her husband Chubja Basumatary, suffering from typhoid and immobile. Sumana recounted the horror tale of watching her house burn with her husband inside. The whole household, paddy-stack and the animals reared were reduced to ashes. In another incident of retaliation four members of the family of motor mechanic Manowar Hussein were subjected to brutal attack. Reportedly four members of his family, namely, Manowar Hussein, his wife Bachibon Bibi, son Muktar Hussein and three months old daughter Rukchana Khatun were abducted. Bachbon Bibi was allegedly raped and murdered. The same fate was meted out to Manowar Hussein and their three months old daughter, while the son Muktar Hussein sustained injuries. All the four of them were thrown into Gaurang river from the bridge over Ganga talkies in Kokrajhar town. The surviving son Muktar Hussein could recount the horror tale to the rescuers, who could rescue him from the river in a badly bruised state. The whole story came out in vernacular media. In another such pathological incident, the dead body of a deaf and dumb person was found floating on the river Champaboti at Khagrabari of Bongaigaon district. The dead man was identified as Samsul Hoque by his family members, who went missing after some armed men attacked their home and village at Khagrabari.

Photo: samaylive.com

Photo: samaylive.com

The spate of hatred and mistrust led to a huge exit and displacement of a massive population of about 4 Lakhs from their villages spread across three Bodoland territorial autonomous districts of Kokrajhar, Chirang and Baksa and its adjoining Dhubri district. Almost 400 villages belonging to both Bodo and Muslim communities are vacated. The condition of the relief camps has been such that there is widespread food poisoning, viral fever and dysentery resulting into at least thirteen reported deaths including six infants. Apart from total absence of a sense of human security, the poor hygienic conditions in the camps only tell the apathy of the both local and the state government.

Photo courtesy: Jagaran.com

Photo courtesy: Jagaran.com

Much after the initial spate of riots, on 1st of August, there are incidents of arson and burning down of homes at Majorgaon in Chirang district, where rioters burnt down seven houses belonging to victims of the minority community. Once again there is a planned flare up in Chirang district. In another similar incident, houses at Churaguri village near Bijni township of Chirang district are again set on fire by an armed mob in presence of Police and security officials. Already 40 houses of the same village are burnt down on 24th July and on 2nd august, rest of the houses are all burnt down. The whole action is carried out apparently keeping in view that the Muslim inhabitants should not return and reclaim their households. The whole incident happened when some of the affected people were returning from Matilal Nehru relief camp at Bijni to their households at Majorgaon near Bijni town. On the assurances from the government; they thought they can safely return now. They were astounded to see the presence of some people in fatigue, reminding them of the trauma that they already suffered. Soon after, the remaining seven houses were gutted in presence of police. Many of the Bodo inhabitants are still refusing to go back to their homes, as they fear retribution and retaliation. Out of the 43 camps in Bijni and Kajalgaon subdivision, there are still over a lakh of minority Muslim population. A contradictory pattern emerges in these camps. As Bodo inhabitants are going back to those villages which are not affected by violence but from which people took shelter out of apprehension, the minority population from 29 villages of Chirang district worst affected by arson and killing are still not out of the trauma of what they have gone through.

Photo: Outlook.com

Photo: Outlook.com

The worst affected areas where sizeable number of deaths occurred are Gosaigaon subdivision and in and around Kokrajhar town. A large number of villages dominated by minority population were burnt down. The villagers were forewarned by the neighbours to leave for safe shelter and as they left homes, the homes were easily burnt down. Such villages include Duramari, Moujabari, Hekaipara, West Tabuchar, Namapara, Nayapara, Kalapani, Bamungaon etc. in Kokrajhar, from where large number of people came to safe shelters. A few who were left to take care of abandoned homes were also killed by armed gangs.In Gosaigaon area, villages such as Ballamguri, Hacaharabari, Palasguri, Malguri etc, are burnt down. Large scale arson continued in these villages for a week since 19th July, despite some presence of security forces. In two other districts of Chirang and Baxa, villages are burnt down in a similar fashion. Some of the worst affected villages of Chirang district include Bechborbari, Nathurbari and Mothapur in Bijni subdivision ; Ulubari and Pakriguri in Kajalgaon subdivision.

Photo: Thehindu.com

Photo: Thehindu.com

The account of such rioting and displacement brings to mind the existing public discourse of immigrant versus indigenous conflict. What is very peculiar in this situation is the claim made by some of the indigenous pressure groups that most of the displaced Muslim Bengali minorities are not genuine Indian citizens. As the homes of these people are burnt down, it is quite possible now to turn them into Bangladeshis. As their return to homes is becoming more and more insecure, what is needed to be done is not merely a packaged rehabilitation, but saving the camp dwellers from this test of citizenship to which they are sure to fail, owing to burning down of their last shred of papers.

Although the immediate context of the entire rioting is now known as killing and counter-killing between Bodo and minority Muslim groups, yet a look at demographic situation would be worth. In four BTAD districts out of a total population of 31,55, 359, Bodo and other plain tribes are only 10,50,627. But in terms of land holdings, Bodos have higher access and ownership to land as their land rights were safeguarded by chapter X of the Assam Land and revenue regulation Act,1886. So the picture that emerges is that the effective right to livelihood and hold over land by the Bodos is in no way threatened by the presence of Bengali Muslims, Asomiya and other plain non-tribal communities.

Photo: Thehindu.com

Photo: Thehindu.com

The absurd question is, can anyone reverse this demographic picture overnight by ethnic cleansing and displacement?

Photo: thenational.ae

Photo: thenational.ae

The Bodoland territorial Council accord signed between GOI and leaders of Bodo liberation Tigers (BLT) in its clause 4.3 allowed the non-tribals to hold onto their existing holdings; while both the Bodo and non-Bodo people, in general, could buy and sell land after due legal formalities. The argument that land held by Bodos will be bought over by crafty Muslims does not hold much water, as the indigenous Bodos continue to depend on their farmland and homestead economy. As a matter of fact, the Bodos allow share-cropping on their land by Muslim peasantry, which is a culture of shared livelihood that no amount of violence can erase. In a nutshell, Bodos do enjoy full political power in the Bodoland autonomous area, while Non-Bodos enjoy other economic, social and cultural rights. Measures of protective discrimination under sixth schedule of the Constitution are working well for Bodos and other tribal communities. Therefore, there is no effective endangerment and emasculation of the rights of indigenous population in the whole of Bodoland as some make it out to be. Ethnic violence is only a symptom of breakdown of ethnic inter-relationship in an ethnically plural society of Bodoland, within which every community is actually secured and protected with their due constitutional rights. The contributions made by Muslim Bengali citizenry to the indigenous economy and society and to the growth and sustenance of Asomiya as state language of Assam cannot be shelved under the carpet by any deviant categorization. The shared space of life between Bodos and Muslim Bengalis also cannot be destroyed by violence alone, as the life-force generated by such camaraderie is far stronger than any disruptive attempt. The rhetorical difference between Bengali Muslims and Bodos is only a hypothetical ploy to experiment with various contingencies of political power sustained by an engineered trauma and insecurity, which needs to be dealt using law. It is also not yet too late to realize that peace and tranquillity between ethnic minorities in a ethnically plural Bodoland is the only way to ensure social justice and economic progress.

Photo: ibtimes.com

Photo: ibtimes.com

 

* The writer is Professor at the Department of Philosophy in the North Eastern Hills University, Shillong, Meghalaya and Director, Research, Barak Human Rights Protection Committee (BHRPC), Silchar, Assam.

 

Bhuvan valley: Stay hungry and shut up

April 3, 2012

‘Stay hungry and shut up’ seems to be the food security policy of Assam government

Waliullah Ahmed Laskar[1]

Uma Goala, 5 year old daughter of Munia Goala of Chengjur in the tea garden suffering from low appetite, vomiting and fever.

Uma Goala, 5 year old daughter of Munia Goala of Chengjur in the tea garden suffering from low appetite, vomiting and fever.

Those whose near and dear ones reportedly died of hunger and lack of medical care in Assam are now being told to shut up and say only what they are told to say. In a tea garden in the North East Indian state where more than 14 people died of hunger, malnutrition and lack of medical care are now being harassed and pressurized into signing papers stating that all is well with them. With the help of their husbands and other male members of their families, workers and helpers of the Anganwadi centres under the Integrated Child Development Scheme (ICDS) in the Bhuvan valley tea garden of Cachar district took signatures of the labourers and other villagers on 31 March 2012 on a paper that stated that the beneficiaries were being provided with sufficient nutrition and other services as required under the scheme and that they did not have any complaint regarding functioning of the centres. They took signatures of particularly those residents who provided the Barak Human Rights Protection Committee (BHRPC), the local rights group that brought the cases of hunger deaths in the garden into the light, with information about their situation during its fact-finding study.
The BHRPC reported that the Bhuvan Valley Tea Estate, a tea garden owned by a private company based in Kolkata, which employed about 500 permanent and another 1000 casual workers, was abandoned by the owners in October 8, 2011 without paying the workers their outstanding wages and other dues. It resulted in loss of means of livelihood of the workers and pushed them into the condition of starvation and famine that led to the deaths of ten people till 27 February 2012. According to the fact-finding report[2] issued on 1 February, the workers were deprived of their rights as they were forced to do overwork and were paid very low wages (Rs. 41.00 for casual workers and 50.00 to 55.00 for permanent workers) without being provided with any medical treatment while working and, after closure, had the payment of their wages, provident fund and bonus suspended. The rights of plantation workers to fair wage, bonus, provident fund, housing and basic medical facilities in accordance with the Plantation Labour Act, 1951 have not been implemented. In the course of closure, the government failed to make any intervention to guarantee their fundamental rights to live with dignity. It is further found that basic medical care and food distribution for the poor under the government schemes including the ICDS have not properly reached even those workers who lost their livelihoods and that it was one of the causes that led to the deaths.
Family of a tea labourer in the Bhuvan valley tea garden live here. This is their home.

Family of a tea labourer in the Bhuvan valley tea garden live here. This is their home.

Even after publication of the disturbing reports, the authorities did not take any effective actions except re-opening of the garden on 9 February 2012 while maintaining that the deaths were not caused by starvation[3]. The situation, therefore, continued to worsen. The BHRPC again on 11 February reported about critical health conditions of 43 other people[4]. Among them two more people died on 18 and 22 February[5]. The chief minister of Assam wrote a letter on 29 February giving details of actions taken by the government while at the same time he still maintained without any proper inquiry that these deaths were not caused by starvation. Actions of the government were, at beast, inadequate and misleadingsaid the BHRPC in a statement[6]As a result, deaths continued unabated in the tea garden and on 10 March the BHRPC had to report two more deaths[7].
On the other hand, after publication of the reports some human rights groups, individual rights defenders and section of national media conducted independent investigations and took up the issue. Among the groups the Asian Human Rights Commission (AHRC), a Hongkong based rights body, taking up the case wrote to the United Nations special rapporteur on the right to food and issued two hunger alerts world wide[8]. The Varansi (in Uttar Pradesh) based rights group People’s Vigilance Committee on Human Rights (PVCHR) also sent letters to the authorities in India. Another civil society team from Guwahati visited the tea garden on 22 and 23 February. The group was comprised of Saito Basumatary, coordinator of the People’s Rights Forum, Wilfred Topno, president of Adivasi Sahitya Sabha- Assam, Stephen Ekka, director, of the PAJHRA, Godfrey Here, secretary of the Nawa Bihan Samaj and Rejan Horo, organizing secretary, central committee of the AASAA  and issued a statement corroborating the findings of the BHRPC after they made an extensive study of the situation. New Delhi based noted social activist Swami Agnivesh also engaged with the government in dialogue and pressed for the amelioration of the situation[9].
Apart from carrying stories on the situations in the garden by some national media outlets such as Indo-Asian news services, press trust of India and papers like the Asian Age, Times of India and the Telegraph (Kolkata), the CNN-IBN[10] and the Tehelka magazine conducted their own inquiry. The CNN-IBN continuously aired news on the situation and held a talk show while the Tehelka magazine published an in-depth story[11].
Meanwhile, on the complaint of the BHRPC the Supreme Court commissioners on the right to food took cognisance of the matter and asked their Assam state advisor for a report.[12] The national human rights commission also registered cases and started proceedings.[13]
Villagers taking bath in the cannel, the only source of water.

Villagers taking bath in the cannel, the only source of water.

These interventions generated certain amount of heat that was felt by the relevant quarters in New Delhi and Dispur. And reportedly even the prime minister’s office was asked to look into the reports forcing the Assam CM to act[14]. But instead of taking substantial and prompt actions, he ordered an additional chief secretary Mr. PK Choudhury to conduct an inquiry and minister for excise and sports Mr. Ajit Singh to keep vigil on the situation. He held a meeting to discuss their feedback and decide further actions on 11 March. From the reports in the press it seemed that the government was trying to shift the entire blame on the estate management who, according to the chief secretary, was not responding to official communiqués from the deputy commissioner as well as the labour department and “neglecting” the garden[15].  The reports were totally silent about the stand of government on the role of its officers, particularly those who were responsible to ensure that the gardens were run in accordance with law, and those who were responsible for proper implementation of the flagship schemes. However, it is learnt that the CM instructed the officials to cause some ring wells dug in the gardens to make drinking water available for the residents and to take some other ameliorating measures[16].

But the woes of the labourers were far from over. There was complaint that labourers were not getting loans from provident fund to get over their cash crunch as the authorities did not released the fund even though the management had already paid 50% of the arrears of PF through the district administration. Even the PF claims of the dead labourers were also not being cleared. It was also alleged that the Anganwadi centres were not providing food staffs and other services of their mandate, doctors were not available in the estate hospital and problems of drinking water, sanitation and electricity worsened. When the BHRPC drew attention of the district magistrate/deputy commissioner (DM/DC) Mr Harendra Kumar Devmahanta he ordered two separate inquiries into the grievances about functioning of Anganwadi centres and release of PF giving the responsible officers 10 days time. And he said that he was active in ensuring potable water, medical facilities and electricity in the tea estate. A water supply plant will be set up and till it is done water would be supplied daily by tanks. Besides, a doctor from the nearby primary health centre (PHC) would visit the estate hospital once a week, till a permanent doctor was be appointed, he assured.[17] The meeting between the BHRPC members and the DC took place on 30 March and it was attended by two additional DCs, assistant labour commissioner and district social welfare officer. The last mentioned officer is responsible for running ICDS in the district.
The Supreme Court of India directed the central and state governments to universalise the functioning of ICDS and stated that “(t)he universalisation of the ICDS involves extending all ICDS services (Supplementary nutrition, growth monitoring, nutrition and health education, immunization, referral and pre-school education) to every child under the age of 6, all pregnant women and lactating mothers and all adolescent girls”.[18]
The central government formulated a Nutritional and Feeding Norms for SNP[19] in ICDS and it was approved by the Supreme Court.[20] It states that “children in the age group of 6 months to 3 years must be entitled to food supplement of 500 calorie of energy and 12-15 gm of protein per child per day in the form of take home ration (THR). For the age group of 3-6 years, food supplement of 500 calories of energy and 12-15 gm of protein per child must be made available at the Anganwadi Centres in the form of a hot cooked meal and a morning snack. For severely underweight children in the age group of 6 months to 6 years, an additional 300 calories of energy and 8-10 gm of protein would be given as THR. For pregnant and lactating mothers, a food supplement of 600 calories of energy and 18-20 gm of protein per beneficiary per day would be provided as THR”.[21]
It can be shown in a table more conveniently with money ear-marked for each beneficiary in each category:
Category
Rate in rupees per beneficiary per day
Calories
Proteins in gm
Children below 6 years
4.00
500
12-15
Severely malnourished children
6.00
800
20-25
Pregnant and lactating mothers
5.00
600
18-20
Table-I[22]
Rs. 4.00 is ear-marked for every adolescent girl per day.
It is another question as to whether this money can still buy that much calories and proteins even after three years of severe food inflation from the time of approval of the Supreme Court and particularly in this part of the country which is known for high prices of food stuffs.
As per the Supreme Court rulings, this nutritional support shall be provided 300 days in a year by providing for 25 days per month.
Now, let us take a look on how all these get translated in the ground in the form of actual dietary intake by the beneficiaries. A famous(!) statement of the then Prime Minister Mr Rajiv Gandhi may be remembered that only Re. 0.15 would reach the actual beneficiary from Re. 1.00 meant for the poor and the remaining Re. 0.85 would get siphoned off by those who were entrusted with the task of reaching the beneficiaries with the benefit of the money. Still the situation is same if not worse. The BHRPC team were told during their fact-finding study visit on 27 February by the residents of the Bhuvan valley that there were 7 Anganwadi centres in the garden but none of them were properly functioning. They were opened only once or twice in a month. It indicates that the children and women of the tea garden were receiving about 0.01 per cent of the money allotted for their nutritional support and some health services. The situation has certainly improved since.
But how much improved? A typically ‘well-functioning’ Anganwadi centre in Cachar district gets approximately Rs. 1,200.00 per month. The break-up may be shown in a table:
Category
Total number. of beneficiary
Rs. per head per day
Total amount per category per day
Children below 6 years
50
4.00
200.00
Severely malnourished children
Nil
6.00
Nil
Adolescent girls
38
4.00
152.00
Pregnant and lactating mothers
22
5.00
110.00
Total
—–
——
462.00
Table-II[23]
Bablu Bauri lying in his courtyard. His father Atul Bauri died of hunger recently.

Bablu Bauri lying in his courtyard. His father died of hunger recently.

For one month the amount stands at Rs. 462.00 x 25 days = Rs. 11550.00, say 12000.00. When this scribe talked with the worker of such a typical centre she confided with the condition of anonymity that Rs 3000.00 is taken away by the supervisor apparently for himself/herself, child development project officer (CDPO), the district social welfare officer and other higher-ups, Rs. 1000.00 by the president of the centre management committee and another Rs. 1000.00 by the member secretary of the committee and Rs. 500.00 by each worker and helper from this 12000.00 and the remaining Rs. 6000.00 is spent on the beneficiaries.

The worker of a centre is ex-officio member-secretary of the centre management committee and in most cases her husband or any other member of her family or any relative is the president, though the rule book says the president should be the member of the Gaon Panchayat elected from the area covered by the centre.
If the 7 Anganwadi centres in the Bhuvan valley tea garden function as per rules in the book apparently a worker will incur a loss of Rs. 1500.00 (1000.00 as member secretary and 500.00 as worker), president Rs. 1000.00 and helper Rs. 500.00 of their ‘extra-money’ per month. But it is not important for them that this ‘sacrifice of extra-money’ can go a long way to save some precious human lives. So, they coerced the labourers and other villagers to sign a paper stating that the beneficiaries were being provided with sufficient nutrition and other services as required under the scheme and that they did not have any grievances regarding functioning of the centres.
The presence of the district social welfare officer in the meeting of 29 March and he being ordered to submit a report within 10 days about the complaint regarding function of the ICDC, and the incident of taking forcible signature of the Bhuvan valley residents on the very next day can not be a mere co-incidence.
It is a very sorry and sad commentary on the sense of responsibility as well as humanity of some of the officers and public servants who govern the people and implement the government policies, laws duly passed by legislative bodies and orders made by law courts.
It also shows that the Assam government has not only failed to protect the right to life with dignity of the tea workers in the Bhuvan valley by ensuring availability of adequate food, water, sanitation and health care but it is now also  taking away right to make noise, yell, cry and weep at the time of dying from hunger.

[1] The writer is a human rights defender based in Guwahati, Assam can be reached at wali.laskar@gmail.com

[2] Barak Human Rights Protection Committee (BHRPC). “Tea labourers die of starvation due to exploitation of garden management and government apathy in Assam.” Barak Human Rights Protection Committee (BHRPC), 2012. Web. 1 February 2012 <http://bhrpc.wordpress.com/2012/02/01/hungeralert1/>

[3] “Bhuvan Valley: no hunger deaths.“ Sakalbela 18 February 2012 Silchar ed. Print.
[4] Barak Human Rights Protection Committee (BHRPC). “Situation of hunger deteriorates in Assam tea garden.” Barak Human Rights Protection Committee (BHRPC), 2012. Web. 11 February 2012 <http://bhrpc.wordpress.com/2012/02/23/situation-of-hunger-deteriorates-in-assam-tea-garden/>
[5] Barak Human Rights Protection Committee (BHRPC). “Two more people died in Assam tea garden.” Barak Human Rights Protection Committee (BHRPC), 2012. Web. 23 February 2012 <http://bhrpc.wordpress.com/2012/02/23/hungeralert3/>
[6] Barak Human Rights Protection Committee (BHRPC). “Assam government’s actions regarding starvation deaths are inadequate and misleading.” Barak Human Rights Protection Committee (BHRPC), 2012. Web. 3 March 2012 < http://bhrpc.wordpress.com/2012/03/03/assam-governments-actions-in-starvation-deaths-are-inadequate-and-misleading/>
[7] Barak Human Rights Protection Committee (BHRPC). “Deaths continue unabated in Assam tea garden.” Barak Human Rights Protection Committee (BHRPC), 2012. Web. 10 March 2012   <http://bhrpc.wordpress.com/2012/03/10/hungeralert4//>
[8] (a) Asian Human Rights Commission—Hunger Alert Programme. “INDIA: Assam government failed to ensure the right to life with dignity of tea plantation workers leading to ten deaths.” Asian Human Rights Commission, 2012. Web. 7 February 2012  <http://www.humanrights.asia/news/hunger-alerts/AHRC-HAU-001-2012/AHRC-HAC-002-201>
    (b) Asian Human Rights Commission—Hunger Alert Programme. “INDIA: Two more estate workers die from starvation while the government denies responsibility.” Asian Human Rights Commission, 2012. Web. 27 February 2012  < http://www.humanrights.asia/news/hunger-alerts/AHRC-HAU-001-2012>
[9] “Swami Agnivesh writes to Assam CM on starvation deaths.” The Sentinel. Web. 5 February 2012 Silchar ed.  <http://www.sentinelassam.com/cachar/story.php?sec=2&subsec=12&id=105944&dtP=2012-02-05&ppr=1>
[10]  Sen, Arijit. “Stay hungry: The story behind Assam tea”. IBNLive. Web. 21 February 2012. < http://ibnlive.in.com/blogs/arijitsen/148/63192/stay-hungry-the-story-behind-assam-tea.html>
[11]  Choudhury, Ratnadip. “Did they die of hunger? The Question Haunts Barak Valley.” Tehelka 25 February: 10-11. Print.
[12]  “SC Commissioners take note of starvation deaths.” The Assam Tribune. Web. 2 March 2012 Guwahati ed.  <http://www.assamtribune.com/scripts/detailsnew.asp?id=mar0212/state07>
[13] NHRC Case No.  51/3/2/2012
[14]  “Dispur rap on garden for deaths” The Telegraph. Web. March 2012 Kolkata ed. <http://vv.telegraphindia.com/1120314/jsp/northeast/story_15246290.jsp>
[15] Ibid
[16] “Government will run the garden in case owners unable: Gogoi.” Dainik Samayik Prasanga 14 March  2012 Silchar ed. Print.
[17] Roy, Sipra. “Bhuban Valley TE labourers not getting loans from PF.” The Seven Sisters Post. Web. 1 April Guwahati ed. <http://sevensisterspost.com/?p=1944# >
[18] People’s Union for Civil Liberties Vs. Union of India and Others (Writ Petition (civil) 196 of 2001); date of Judgement: 13/12/2006 in IA Nos. 34, 35, 40, 49, 58, 59, 60, 61 and 62
[19] SNP stand for Supplementary Nutrition Programme.
[20] People’s Union for Civil Liberties Vs. Union of India and Others (Writ Petition (civil) 196 of 2001); Date of Judgement: April 22, 2009
[21] Ibid
[22] Ibid
[23]  It is a hypothetical table based on survey of several Anganwadi centres and meant to show break-up of a typical centre in Cachar district. It needs to be noted that they don’t maintain list of severely malnourished or underweight children.

Concerns over civil and political rights in Assam

October 4, 2011

Waliullah Ahmed Laskar[1]

 I am asked to make a brief presentation on issues relating to civil and political rights in terms of the requirement of ratification of the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (CAT) and its Optional Protocol, ratification of the International Convention for the Protection of All Persons from Enforced Disappearance and other challenges relating to civil and political rights. I will try to present my views on the issues very briefly as an activist working in Assam in the field of human rights.

Ratification of the Convention Against Torture and Its Optional Protocol

Though torture is absolutely prohibited now, throughout history, it has often been used as a method of political re-education, interrogation, coercion and punishment. Deliberately painful methods of execution for severe crimes were taken for granted as part of justice until the development of Humanism in 17th century philosophy, and “cruel and unusual punishment” came to be denounced in the English Bill of Rights of 1689. The Age of Enlightenment in the western world further developed the idea of universal human rights. The adoption of the Universal Declaration of Human Rights in 1948 marks the recognition at least nominally of a general ban of torture by all United Nations member states[2]. Now in the 21st century the prohibition of torture has been recognized as a peremptory norm of international law and a number of international, regional and domestic courts have held the prohibition of cruel, inhuman or degrading treatment or punishment to be customary international law. [3] Some other legally binding international treatises, to which India is a state party, prohibits torture which include Geneva Conventions[4], International Covenant on Civil and Political Rights.[5]

Though the constitution of India does not expressly prohibit torture, the constitutional jurisprudence prohibits torture absolutely. According to the Supreme Court, any form of torture or cruel, inhuman or degrading treatment fall within the ambit of Article 21[6] of the Constitution – whether be it during interrogation, investigation or otherwise. A person does not shed his fundamental right to life when he is arrested. Article 21 cannot be denied to arrested persons or prisoners in custody (D K Basu v State of West Bengal[7]).

Despite such constitutional and judicial denunciation of torture, it is routinely practiced by law enforcement officials and security forces in India. However, there is no accurate data on the use of torture in the country since the Government does not have an unambiguous and strong policy against torture. The National Human Rights Commission (NHRC) gathers figures on custodial deaths. Based on these figures, the Asian Centre for Human Rights (ACHR) estimated that between 2002 and 2008, over four people per day died while in police custody, with “hundreds” of those deaths being due to police use of torture.[8]

Over the days, with the war on terror, practice of torture is becoming more wide spread and there is no legal instrument and mechanism to combat it in India. The CAT and its Optional Protocol provide such mechanism at the international level. The convention was adopted on 10 December, 1984 and came into force on 26 June, 1987. It has 78 signatories and 149 States Parties.[9] India signed the CAT on 14 October 1997, but is yet to ratify it. Advocacy and lobbying from all quarters including NHRC has succeeded and India decided to ratify CAT. The Prevention of Torture Bill, 2010 was introduced in the Lok Sabha on April 26, 2010 and was passed by that house on May 6, 2010 without referring it to the Standing Committee. It was a misnomer to call it the Prevention Torture Bill. It appeared to have been designed to promote torture. The definition of torture (a) was inconsistent with the definition of torture in the Convention against Torture, (b) it required the intention of the accused to be proved, (c) did not include mental pain or suffering, and (d) did not include some acts which may constitute torture. The Bill diluted existing laws by imposing a time limit of six months and requiring prior government sanction for trying those accused of torture. Existing laws do not have such requirements. There was no independent authority to investigate complaints of torture, and no provision for granting compensation to torture victims has been made.[10]  When it was introduced in the Rajya Sabha fortunately the house referred it to the Select Committee and which came up with fairly sensible suggestions and submitted its report on 6 December, 2010.[11] It changed the definition of torture to make it consistent with the definition given in the CAT. The Committee suggested that the limitation period should be two years and not six months as it was in the bill. It suggested dilution of requirement of prior approval for prosecution. The Committee also talked of witness protection which is very sensible. Overall, it can be said that the suggestions of the Committee, if incorporated in the bill in toto, will make the law a pragmatic and preventive tool, though there are much to be desired. For example, 1. requirement of prior sanction for prosecution is a question mark on the wisdom of the judiciary. Courts can deal appropriately with malicious, vexatious or frivolous complaints; 2. persons other than victim and his/her relatives should also be authorized by law to file complaint on his/her behalf without authorization by him/her as provided in the Protection of Human Rights Act, 1993;[12] 3.  an independent mechanism both at national and state level should be established to torture cases and situations in detention places.

Optional Protocol

Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment (Optional Protocol) aims to create a global system of inspection of places of detention as a way of preventing torture and ill-treatment. A Sub-Committee of the Committee Against Torture, composed of 10 independent and impartial members working in their individual capacity, will be empowered to carry out missions to any State that ratifies the Optional Protocol. On the basis of its visits, the Sub-Committee will write a confidential report for the State Party, including practical recommendations. It will initiate a dialogue with the State Party on measures to improve the conditions of persons in custody with the aim of preventing torture.

The second important element of the Protocol is the requirement to put in place national preventive mechanisms. Article 3 of the Protocol requires ratifying States to “set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.”

The emphasis of the Protocol is on prevention and being transparent to the world. Refusal to ratify it means refusal to be transparent which belies India’s claims to democracy and the primacy of the rule of law.

India should ratify both the CAT and its Optional Protocol and also extend invitation to the Special Rapporteur on torture and other cruel inhuman or degrading treatment or punishment and provide facilities to interact freely with survivors of torture and human rights defenders from North East.

Ratification of the Convention on Enforced Disappearance

Enforced Disappearance is abduction or kidnapping, carried out by State agents, or organized groups and individuals who act with State support or tolerance, in which the victim “disappears”. Authorities neither accept responsibility for the dead, nor account for the whereabouts of the victim. Legal recourse including petitions of habeas corpus, remain ineffective. Enforced Disappearance is a serious violation of fundamental human rights: the right to security and dignity of person; the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; the right to humane conditions of detention; the right to a legal personality; as well as rights related to fair trial and family life. Ultimately, it can violate the right to life, as victims of enforced disappearance are often killed. Increasingly the international community considers Enforced Involuntary Disappearance as a specific human rights violation and a crime against humanity. This culminated in the International Convention for the Protection of All Persons from Enforced Disappearance. On February 6, 2007 the Convention was opened for signatures and signed by 57 States. The convention clearly states: – No one shall be subjected to Enforced Disappearance. – No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for Enforced Disappearance.[13]

India signed the International Convention for Protection of All Persons from Enforced Disappearances in February 2007, but has failed to ratify the convention. The crime of Enforced Involuntary Disappearances is not codified as a distinct offence in Indian penal laws. Police either have to make an entry in the general diary as a missing case or register a case under provisions for kidnap or abduction.[14] These provision do not contemplate a situation which is contemplated in the Convention.

Apart from Jammu and Kashmir, the cases of enforced disappearances are routine in North East India, particularly in Manipur. The infamous secret killings in Assam during 1998–2001 also fall within the ambit of enforced disappearances. Barak Human Rights Protection Committee (BHRPC) also documented cases of enforced disappearances. BHRPC wrote to the Prime Minister of India on July 18, 2009 about the disappearance of Paresh Das (55) and Dilip Das (45) of Nandan Kanan Tea Garden area under Jirighat Police Station in Cachar district, Assam, on May 25, 2009 from Tamenlong in Manipur and the PMO in turn wrote to the Chief secretary of Assam requesting him to take appropriate actions.[15]

Lack of substantive and procedural laws as to with the problem is one of the factor that crippled the state in terms of effective prevention and placing deterrence. Ratification of the Convention along with incorporation of the provisions in domestic laws is the need of the hour.

Other Challenges Relating to Civil and Political Rights

There are so many other challenges in exercising and enjoying civil and political rights. One of them is the challenge of policing while respecting rights of the people adhering to the human rights norms.

Policing

The police, in a sense, is the most empowered group of human rights defenders.[16] But sadly enough, after 64 years of independence, the institution remains and functions more or less all over the country as it was designed by the British colonial rulers in the Police Act of 1861.

After decades of public pressure, lack of political will and continued poor policing, a police reform process is finally underway in India. On 22 September 2006, the Supreme Court delivered a historic judgment in Prakash Singh and Others vs. Union of India and Others[17] instructing central and state governments to comply with a set of seven directives laying down practical mechanisms to kick-start reform.[18]

The directives were aimed to ensure functional autonomy of the police and their accountability to the law. For ensuring functional autonomy the Supreme Court directed 1. to establish a State Security Commission to i. ensure that the state government does not exercise unwarranted influence or pressure on the police; lay down broad policy guidelines aimed at promoting efficient, effective, responsive and accountable policing, in accordance with the law; give directions for the performance of the preventive tasks and service oriented functions of the police; evaluate the performance of the state police and prepare a report on police performance to be placed before the state legislature.

2. The second directive was aimed at ensuring fair selection of Director General of Police (DGP) and guarantee of his tenure.[19]

3. Security of tenure is similarly important for other police officers on operational duties in the field. In order to help them withstand undue political interference, have time to properly understand the needs of their jurisdictions and do justice to their jobs, the Supreme Court provides for a minimum tenure of two years for the following categories of officers:           – Inspector General of Police (in charge of a Zone)

- Deputy Inspector General of Police (in charge of a Range)

- Superintendent of Police (in charge of a District)

- Station House Officer (in charge of a Police Station)[20]

4. To counter the prevailing practice of subjective appointments, transfers and promotions, the Supreme Court provides for the creation of a Police Establishment Board. In effect, the Board brings these crucial service related matters largely under police control. Notably, a trend in international best practice is that government has a role in appointing and managing senior police leadership, but service related matters of other ranks remain internal matters. Experience in India shows that this statutory demarcation is absolutely required in order to decrease corruption and undue patronage, given the prevailing illegitimate political interference in decisions regarding police appointments, transfers and promotions.[21]

5. the Supreme Court directed the Central Government to establish a National Security Commission for Central Police Organisations and Central Cara-Military Forces.

For ensuring accountability the Supreme Court directed the governments to set up:

6. Police Complaints Authority[22] and

7. To separate investigation and law and order function of police.[23]

The Government of Assam passed the Assam Police Act, 2007 purportedly to comply with the Supreme Court directives. But in reality it does not comply with the judgment fully. The Commonwealth Initiative for Human Rights (CHRI), a regional human rights organization which was also one of the interveners in the Prakash Shingh case, after an analysis of the Act says that the Act only partially complies with the directives:

  1. State Security Commission was established but the composition is not as per the Supreme Court directive.[24] The Act has also weakened the mandate of the commission and has made its recommendation non-binding.
  2. The second directive regarding selection process of the DGP and guarantee of his tenure not complied.
  3. Directive regarding guarantee of tenure of the police officers on the field are also not complied. Only one year of tenure is guaranteed to the Superintendent of Police in charge of a district and Officer-in-Charge of a police station with  vague grounds for premature removal.[25]
  4. Police Establishment Board was set up but the mandate was not adhered to.[26] DGP has also been given the power to transfer any officer up to the rank of Inspector “as deemed appropriate to meet any contingency”, contrary to the directive.
  5. The Central Government did not establish National Security Commission in utter contempt of the judgment.
  6. The Assam Police Act, 2007 establishes Police Accountability Commission to enquire into public complaints supported by sworn statement against the police personnel for serious misconduct and perform such other functions[27]. But the Chairperson and members of the Commission are appointed directly by the government.[28] This can, at best, be called partial compliance.
  7. Half hearted attempts can also be seen regarding separation of investigation from law and order function of the police. Special Crime Investigation Unit has been set up in urban police stations but there is no specific section on separation of between law and order and crime investigation.

This deliberate attempt to bypass the Supreme Court directives prompted the petitioner in the case former Assam director-general of police Prakash Singh to describe the Assam Police Act, 2007, as a fraud on the people of the state. He was speaking at a seminar  jointly organised by the commission and the Assam State Legal Services Authority at the Assam Administrative Staff College, Guwahati. According to him, the government had violated the letter and spirit of the apex court guidelines by passing the act without conforming to these guidelines.[29]

The Act needs drastic amendment to be brought in conformity with the Supreme Court guidelines and to be compatible with International Human Rights Standards. More importantly the role of the police needs to be redefined “taking into account the emerging challenges of policing and security of the State, the imperatives of good governance, and respect for human rights”.[30]

Implementation of the Laws

Another huge challenge to the civil and political rights is the no-adherence and non-implementation of laws and other instruments that are meant to protect such rights. The Supreme Court guidelines in DK Basu, and NHRPC guidelines regarding arrest, custodial deaths have the potential to drastically reduce the number of torture and disappearance cases if implemented properly. The DK Basu guidelines are only implemented in papers. In rural police stations the guidelines are not even hung in a language eligible to the public at a conspicuous place.

BHRPC has documented many cases of fake encounters and custodial deaths where no magisterial inquiry was conducted in contravention of the statutory mandate of section 176, of the Code of Criminal Procedure, 1973[31]. In other two cases where the executive magistrates conducted the inquiry the accused police personnel have been found guilty of murder. [32] The reports are dated 28 March 2007 and 9 April 2008 but till the date neither prosecution has been started nor has any compensation been provided to the kins of the deceased. Apart from legal immunity provided by security legislations such as the Armed Forces (Special Power) Act, 1958, the Assam Disturbed Areas Act, 1955 there is a regime of de facto impunity guaranteed to the violators which responsible for the increase of the incidents of torture, custodial deaths and other extrajudicial killings.

Anomalies in the Legal Regime

Such gap between good laws on papers and their implementation on the ground may have been facilitated by the mindset that has been created among the law enforcement officials and security forces by the blanket power that has been given them to carry out their operations, once an area is declared disturbed under the AFSPA and ADAA. Even a non-commissioned officer in case AFSPA and a Havildar in case ADAA is granted the right to torture and to shoot to kill based on mere suspicion that it is necessary to do so in order to “maintain the public order” with full guarantee that he will never be required to answer in a court of law. If they are exempted from answering in a regular court of law, one may wonder, what the use of a magisterial inquiry is whether by judicial magistrate or executive magistrate.

Repeal Draconian Laws

Passing of the Prevention of Torture Bill, enactment of laws incorporating provisions of the Convention on Enforced Disappearance, carrying out the police reform as per the Supreme Court directives, ratification of CAT and its Optional Protocol and ratification of the Convention on Enforced Disappearance envisage a sea change in the human rights regime in the country. As a logical corollary to these steps repeal of the AFSPA, ADAA, repeal or amendment to the National Security Act, 1980, the Assam Preventive Detention Act, 1980 and other such laws must be carried out to bring the entire human rights regime in India in conformity with the international human rights standards.

Waliullah Ahmed Laskar

Barak Human Rights Protection Committee (BHRPC)

Silchar, Assam


[1] This is a little modified version of the presentation made in the North East Consultation for  Universal Periodic Review of India at the UN Human Rights Council in 2012 held at NEDFi House Dispur, Guwahati on 23 September, 2011.
[2] Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
[3]  The United Nations Human Rights Council Resolution 8/8 on Torture and other cruel, inhuman or degrading treatment or punishment.
[4] The four Geneva Conventions provide protection for people who fall into enemy hands.
The third (GCIII) and fourth (GCIV) Geneva Conventions are the two most relevant for the treatment of the victims of conflicts. Both treaties state in Article 3, in similar wording, that in a non-international armed conflict, “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms… shall in all circumstances be treated humanely.” The treaty also states that there must not be any “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” or “outrages upon personal dignity, in particular humiliating and degrading treatment”.
GCIV covers most civilians in an international armed conflict, and says they are usually “Protected Persons” (see exemptions section immediately after this for those who are not). Under Article 32, protected persons have the right to protection from “murder, torture, corporal punishments, mutilation and medical or scientific experiments…but also to any other measures of brutality whether applied by non-combatant or military agents”.
GCIII covers the treatment of prisoners of war (POWs) in an international armed conflict. In particular, Article 17 says that “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.” POW status under GCIII has far fewer exemptions than “Protected Person” status under GCIV. Captured enemy combatants in an international armed conflict automatically have the protection of GCIII and are POWs under GCIII unless they are determined by a competent tribunal to not be a POW (GCIII Article 5).
[5] Article 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
[6] Article 21 of the Constitution of India provides that “[n]o person shall be deprived of his life and liberty except according to procedure established by law”. The right to life in Article 21 of the Constitution of India does not mean mere survival or existence. It encompasses the right to live with dignity. Torture is inflicted with the aim of degrading a person and involves the violation of dignity. It therefore falls within the ambit of Article 21.
Further safeguards are provided under other articles of the Constitution. Under Article 20(3), no person accused of any offence can be compelled to be a witness against himself. Article 22 (1) and (2) provide that a person who is arrested must be informed as soon as may be of the grounds of his arrest. The person also has the right to consult a lawyer of his choice. An arrested person must be produced before the nearest magistrate within 24 hours of his arrest.
The Code of Criminal Procedure (CrPC) also requires the production of accused before court within 24 hours. Section 54 of the CrPC gives the arrestee the right to be medically examined. No statement of a witness recorded by a police officer, according to Section 162 of the CrPC, can be used for any purpose other than contradicting such a statement. Thus admission of guilt before a police officer is not admissible in a court of law. Section 164 of the CrPC requires that the magistrate must ensure that a confession by the accused is voluntary. Sections 330 and 331 of the Indian Penal Code (IPC) make it a penal offence to cause hurt to a person in order to extract a confession. (Human Rights Feature (Voice of the Asia Pacific Human Rights Network), Optional Protocol to CAT: India can’t see the consensus accessed at http://www.hrdc.net/sahrdc/hrfeatures/HRF59.htm on 22 September, 2011.
[7] AIR 1997 SC 610, 1997 CriLJ 743, 1996 (4) Crimes 233 (SC), (1997) 2 GLR 1631, JT 1997 (1) SC 1, RLW 1997 (1) SC 94, 1996 (9) SCALE 298, (1997) 1 SCC 416, [1996] Supp 10 SCR 284
[8] “Hundreds die of torture in India every year – report”. Reuters. 2008-06-25.
[9] United Nations Treaty Collection, accessed at http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en on 22 September, 2011.
[10] PRS Legislative Research, Legislative Brief: The Prevention of Torture Bill, 2010
[11] The Report is summarized as: 1. The Bill seeks to provide punishment for torture committed by public servants or with their consent. It was introduced to enable India to ratify the UN Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment. The Committee added a number of amendments to the Bill.
2. The Bill defines “torture” as grievous hurt or danger to life, limb and health. It adds that an act is torture only if it is done intentionally and with the purpose of getting information or confession. The Committee recommended that the definition of torture should be suitably expanded so as to make it consistent with the UN Convention and include offences under the Indian Penal Code. Torture of women and children should be given special consideration and attempt to torture should also be made an offence. The definition of public servant should include any government companies or institutions.
3. The Bill states that a person shall be liable to a maximum of 10 years’ imprisonment and a fine. The Committee suggested that a minimum punishment of three years be given to make the law more of a deterrent. Also, the torturer should be fined a minimum of Rs 1 lakh.
4. The Committee was of the opinion that the Bill should include guidelines for arriving at a fair compensation to the victim or to his dependents on his death.
5. The Committee stated that the limitation period for filing a complaint should be two years so that complainants have sufficient time to initiate proceedings. It added that there should be a specific provision in the Bill to ensure that complaints of disadvantaged victims are registered according to the law.
6. The Bill states that approval of the central or state government is required before courts can admit complaints against a public servant. While there is a need to protect honest officials, the Committee was of the view that this provision should not be used to shield guilty officials and deny justice to victims. Therefore, it suggested that if requested sanction is not given within three months, it would be deemed to have been granted. Trial for every offence under this law should be concluded within one year.
7. Since victims and witnesses face threats from accused persons, the Committee recommended that adequate provisions for the protection of victims and witnesses should be included in the Bill. A medical examination of the victim should be mandatory while he is lodged in jail. The report should be sent to the trial court.
8. The Committee observed that this law should be in addition to and not in derogation of any other law in force.
9. The Committee stated that the appropriate government would need to frame Rules for implementation of the Bill. Such a provision should be included in the Bill.
10. In view of the importance of the Bill, the Committee recommended that the period of notification be specified in the Bill itself. It suggested that the Bill should be notified within 120th day of its enactment.
[12] Section 12 reads  “Functions of the Commission: The Commission shall perform all or any of the following functions, namely : (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of (i) violation of human rights or abetment thereof or (ii) negligence in the prevention of such violation, by a public servant; “
[13] Office of the United Nations High Commissioner on Human Rights, International Convention for the Protection of All Persons from Enforced Disappearance, accessed at http://www2.ohchr.org/english/law/disappearance-convention.htm on 22 September, 2011.
[14] The sections of the Indian Penal Code that deal with kidnap and abduction are :359. Kidnapping; 360. Kidnapping from India; 361. Kidnapping from lawful guardianship; 362. Abduction 363.     Punishment for kidnapping; 363A. Kidnapping or maiming a minor for purposes of begging; 364. Kidnapping or abducting in order to murder; 364A.  Kidnapping for ransom, etc.; 365. Kidnapping or abducting with intent secretly and wrongfully to confine person; 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.; 366A. Procreation of minor girl; 366B.       Importation of girl from foreign country; 367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.; 368.       Wrongfully concealing or keeping in confinement, kidnapped or abducted person.
[15] Vide PMO Letter No. vide No. 13/3/2009-PMP3/75979 dated August 6, 2009
[16] The Preamble of the Assam Police Act, 2007 says that “it is expedient to redefine the role of the police taking into account the emerging challenges of policing and security of the State, the imperatives of good governance, and respect for human rights”
[17] Writ Petition (civil) 310 of 1996
[18] Commonwealth Human Rights Initiative (CHRI), Prakash Singh and Others vs. Union of India and Others: Analysis of the Supreme Court Directives on Police Reforms
[19] The Supreme court says, the Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.”
[20] The Supreme Court says, Police Officers on operational duties in the field like the Inspector General of Police incharge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge district and Station House Officer in-charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer.”
[21] CHRI:
[22] There shall be a Police Complaints Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. The district level Authority may be headed by a retired District Judge while the State level Authority may be headed by a retired Judge of the High Court/Supreme Court. The head of the State level Complaints Authority shall be chosen by the State Government out of a panel of names proposed by the Chief Justice; the head of the district level Complaints Authority may also be chosen out of a panel of names proposed by the Chief Justice or a Judge of the High Court nominated by him. These Authorities may be assisted by three to five members depending upon the volume of complaints in different States/districts, and they shall be selected by the State Government from a panel prepared by the State Human Rights Commission/Lok Ayukta/State Public Service Commission. The panel may include members from amongst retired civil servants, police officers or officers from any other department, or from the civil society. They would work whole time for the Authority and would have to be suitably remunerated for the services rendered by them.
The Authority may also need the services of regular staff to conduct field inquiries. For this purpose, they may utilize the services of retired investigators from the CID, Intelligence, Vigilance or any other organization. The State level Complaints Authority would take cognizance of only allegations of serious misconduct by the police personnel, which would include incidents involving death, grievous hurt or rape in police custody. The district level Complaints Authority would, apart from above cases, may also inquire into allegations of extortion, land/house grabbing or any incident involving serious abuse of authority. The recommendations of the Complaints Authority, both at the district and State levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority.”
[23] The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be ensured that there is full coordination between the two wings. The separation, to start with, may be effected in towns/urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also.”
[24] Section 35 lays down the composition :(1) The State Security Commission shall have as its members :-
(a) the Chief minister as the Chairperson;
(b) a retired high Court judge;
(c) the Chief Secretary;
(d) the Secretary in charge of the Home Department as its Member
Secretary;
(e) the Director General of Police of the State; and
(f) three non-political persons (hereinafter referred to as Independent Members”) of high integrity, expertise and competence in administration, law enforcement and security related matters nominated by the State Government. Out of these one shall be police officer superannuated in the rank not below Director general of Police, another a retired civil service officer not below the rank of Commissioner and Secretary to the State Government with experience in public administration, and the third member will be from the fields of public service, legal profession or social organization with at least fifteen years experience in the field.
Where as the Supreme Court approved Model Police Act in addition to the Chair and the Secretary, provides for the following composition:
(a) Leader of the Opposition in the state assembly
(b) Retired High Court Judge nominated by the Chief Justice of the High Court
(c) Home Secretary3
(d) Five non-political persons of proven reputation for integrity and competence from the fields of academia, law, public administration, media or non-government organisations to be appointed on the recommendation of a Selection Panel composed of:
(i) A retired Chief Justice of a High Court to be nominated by the Chief Justice of the High Court;
(ii) The Chairperson of the State Human Rights Commission; in the absence of a state Commission, a person nominated by the Chairperson of the National Human Rights Commission; and
(iii) The Chairperson of the State Public Service Commission.
[25] Sub-section 3 of section 12 provides: (3) Following officers on operational duties in the field shall have a term of minimum one year –
(i) Superintendent of Police in charge of District;
(ii) Officer in charge of Police Station :
Provided that such officer may be transferred from his post before the expiry of the minimum tenure of one year consequent upon,–
(a) promotion to a higher post; or
(b) conviction or charges having been framed, by a court of law in a criminal offence; or
(c) punishment of dismissal, removal, discharge or compulsory retirement from service or of reduction to a lower rank, or imposition of any other penalty other than censure awarded the relevant Acts and Rules; or
(d) suspension from service in accordance with the provisions of the Rules; or
(e) incapacitation by physical or mental illness or otherwise becoming unable to discharge his functions and duties; or
(f) the need to fill up a vacancy caused by promotion, transfer, or retirement; or
(g) on deputation with the consent of the officer concerned; or
(h) inefficiency or negligence or misdemeanor prima facie establishment after preliminary enquiry :
Provided that in the public interest the State Government may transfer the Superintendent of Police of the District as may be deemed appropriate to meet any contingency :
Provided further that in the public interest the Director General of Police of the State may transfer Officers in charge of Police Station of the rank of Inspector and District Superintendent of Police may transfer the Officer in charge of Police Station of the rank of Sub-Inspector of Police within the district as deemed appropriate to meet any contingency.
[26] See section 44 and 45 of the Assam Police Act, 2007
[27] See section 70
[28] See section 71
[29] The Telegraph, Monday, May 31, 2011: Ex-DGP dubs act ‘fraud’ – Govt faces flak over Assam Police Act, accessed at http://www.telegraphindia.com/1110530/jsp/northeast/story_14045156.jsp on 22 September 2011.
[30] Preamble to the Assam Police Act, 2007
[31] The Code of Criminal Procedure (Amendment) Act, 2005 [NO. 25 OF 2005] incorporates sub-section (1-A) to the section 176 which reads
“(1-A) Where,—
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.”;

[32] See Magisterial Inquiry Report vide NO. MISC. CASE. 1/2007/28 Dated Silchar, the 9th April, 2008 and Memo No. KCL22/2007-08/242 dated Katigorah, 28 March 2007.

INDIA: Will the 40th All India Police Science Congress consider the killer cop in Assam as one among them?

June 4, 2010
[AHRC Article] INDIA: Will the 40th All India Police Science Congress consider the killer cop in Assam as one among them?Get pdf version
FOR PUBLICATION AHRC-ART-056-2010
June 4, 2010

An Article by Mr. Waliullah Ahmed Laskar published by the Asian Human Rights Commission

The Campaign against Torture is one of the core thematic activities of the Asian Human Rights Commission (AHRC). With a view to promote local debates on torture and to encourage ordinary individuals, human rights activists, scholars and jurists to write and debate about the subject in India, the AHRC has called for articles and papers on the question of torture, of which a selected few will be published by the AHRC. The following is the first in this series.

INDIA: Will the 40th All India Police Science Congress consider the killer cop in Assam as one among them?

Waliullah Ahmed Laskar*

There is nothing new about the police officers in the Indian state of Assam who enjoy immunity for the crimes they commit on behalf of their political bosses. They are awarded perks and promotion for their crimes. Most criminals in police uniform enjoy such immunity because they know to please those who are in power.i This de facto impunity is in addition to the statutory impunity provided to the state security agencies by laws, often referred to as ‘draconian’ and ‘repressive’, like the Armed Forces (Special Powers) Act, 1958; the Assam Disturbed Areas Act, 1955; the Assam Police Act, 2007; and the wrong interpretation of Section 197 of the Criminal Procedure Code, 1973. Nobody is surprised in Assam these days by reports of crimes committed by police officers and many of these criminals are rewarded with service medals, promotions and postings in important police stations where they have abundant opportunities to demand and collect bribes.

The case discussed here is a little different. On 21 September 2007, the state police tortured and killed Mr. Motahir Ali Tapadar, a 38-year-old labourer, from Bhatgram village residing under the jurisdiction of Katigorah Police Station in Cachar district of Assam. The police officers tortured Motahir first inside a Police Patrol Post, and later in full public view, at a government health centre in front of the public and the doctor treating him. The police killed Motahir since he was unable to pay bribes to the police.

A magistrate inquired about the incident and the report was kept hidden by the government. The Barak Human Rights Protection Committee (BHRPC)ii , an Assam based human rights organisation that is following the case obtained the Magisterial Inquiry Report,iii after lot of effort and using the Right to Information Act, 2005 (RTI). The content of the report exposes the criminal nature of the police officers involved in the incident.

Portions from the report as recorded by the inquiring magistrate, the Additional District Magistrate (ADM) of Cachar, is reproduced below with a view to explain to the reader the incident and the criminal involvement of the police officers that resulted in the murder of an innocent person:

‘A petty quarrel between Mr. Motahir Ali and his neighbour Mr. Sahab Uddin took place at about 11am on 20 September 2007 in front of their houses concerning a minor quarrel between the children from the two neighbouring houses over toys or games resulting in an argument between the elders that led to the scuffle. Sahab and Motahir went to the Police Patrol Post at Kalain and lodged a complaint against each other. Mr. Narayan Tamuli, the Assistant Sub Inspector (ASI) who was also the officer in-charge of Kalain PP accompanied by his constables arrived at the respective houses of the complainants and took them to the PP and detained them at the patrol post.’

‘Some persons from Bhatgram and the relatives of the detainees went to the patrol post with a request to bail the detainees out and to settle the case amicably. Alimun Nesa, Motahir’s wife took food to the patrol post for her husband in the evening. Motahir was quite fine at the time. Alimun met officer Tamuli and pleaded for the release of her husband from police custody, stating the background of the argument. Tamuli demanded Rs. 10,000 from her as bribe to release Motahir. She informed Tamuli that they are too poor to raise the money. However, Alimun informed Motahir that she could collect Rs. 500 or Rs. 600 from her neighbours and give it to Tamuli.’

‘Tamuli refused to accept any lesser amount than what he initially demanded and denied to release Motahir. On the same night Tamuli and his subordinate officers tortured Motahir. On the next day morning Alimun again went to the patrol post and found her husband lying on the lockup floor. He could hardly move or speak. Motahir could somehow express to his wife that he was brutally beaten and kicked by the police officers on the previous night and that he feared that he is badly injured in his abdomen. He further told to his wife that there is no chance of him surviving another day since he was seriously injured from the torture.

‘When Motahir’s condition deteriorated Tamuli dragged him into three-wheeler (auto rickshaw) and took him to Kalain Primary Health Centre (PHC). At the PHC, Tamuli and his subordinate officers, police constables stationed under Tamuli at Kalain patrol post, continued their brutal assault upon Motahir in front of the doctor and the hospital staff. The public present at the PHC witnessed the assault and tried to dissuade the police but they failed. Dr. Badal Das, the doctor in-charge of the PHC reportedly examined Motahir and after discussion with Tamuli, decided to send Motahir to Silchar Medical College and Hospital (SMCH) for treatment but he died on the way.’

The report further says: ‘[i]t is revealed from the hearing that Motahir was a day labourer and the family had a hand to mouth existence. His family consisted of his wife and three minor children. His wife was expecting another child at the time of the incident. Motahir was a peace loving man and there were no former public complaints against him. It is stated by Alimun, the helpless widow of Motahir that a minor quarrel amongst the neighbours’ children over toys developed into an insignificant scuffle between the elders – resulting in the filing of a police case and arrest of Motahir by the Kalain police. The inhuman torture inflicted upon Motahir for non-payment of the bribe and the brutality by the police in public and the subsequent death of a simple day labourer in the Kalian PHC before the noon of 21 September 2007 in front of the doctor of the hospital and his staff is a bitter experience for the people of Kalain.’ [Emphasis added].

‘One Mr. Ramzan Ali, Constable under Tamuli administered the point of his lathi (stick) at the abdomen of Motahir while he was admitted at the Kalain PHC resulting in total silence of the body [sic] of Motahir. It is stated the constable’s last stroke made the way or caused the circumstances for demise of Motahir.’

The report concludes that ‘the police at Kalain patrol post was pro-active in committing brutalities upon Motahir simply for the reason that the deceased’s family could not afford payment of bribes to the police officers…’

Regarding the consequent arson and destruction of public properties by the angry public, the Magistrate states that: ‘the news of death spread at Kalain and adjacent areas and the public in the locality got infuriated. Hundreds of local people gathered at around 2pm in front of the patrol post and Gaon Panchayath Office and shouted slogans and pelted stones at the patrol post. Police tried to gain control over the situation with their existing force but could not succeed. Then the police opened fire injuring one person but there was no casualty though it is claimed that 80 rounds were fired to disperse the angry crowd.’

‘The patrol post caught fire and it was completely gutted. Nearby GP office of Kalain also caught fire and was burned to ashes resulting in the loss of public documents and properties. There was little attempt to save the public properties and it was left at the whims of the excited public who took their own course of action.’ The magistrate added, “[h]owever, the actual cause of fire in both the offices are yet to be ascertained.”

Commenting on the report, Mr. Neharul Ahmed Mazumder, Secretary General of BHRPC, said: ‘[s]o far as the conclusion of the inquiry concerning the death of Motahir Ali is concerned the BHRPC is substantially in agreement with the findings. However the organisation sticks to its own findings regarding the incidents of the aftermath.’ He points to the BHRPC fact-finding report that observed: ‘hundreds of local people gathered at 2pm around the patrol post and started shouting slogans demanding arrest of Narain Tamuliiv. Police charged them with sticks and rifle butts which further infuriated the crowd and they started pelting stones at the police. Police then opened fire and fired 80 rounds. In the firing there was only one severe injury. Mr. Shahidur Rahman, aged 17 years, who was watching the incident from the roof of a two-storied house, was injured badly in his left leg. He was admitted to SMCH. Being terrified by such heavy firing the crowd dispersed.’

‘Then the police themselves set fire on patrol post and burnt it down in order to distract the attention of people from the murder and hush it up. The propaganda that after the death of Motahir Ali the outraged people set on fire the patrol post is false and intentional.’

The report further says: ‘the terrified public at first were silent. Nobody dared to speak anything about the incident initially. Subsequently a large number of people requesting anonymity claimed that some men arranged by the police had set on fire the patrol post. They raise two arguments to substantiate this claim. First, although there was only one person who was hit and injured among the police, the police fired eighty rounds to disperse the mob and no mob can withstand such a large quantity of firing. The mob dispersed and fled after a few rounds of firing. Secondly, the fire was first found at the backside of the patrol post. If the mob had set fire the patrol post they would have done so from the front because they were there. Moreover, there is a marsh behind the patrol post which prevented the mob from accessing the patrol post from the back side.’

The police registered a First Information Report (FIR) against one Mr. Faruk Ahmed and other five-hundred unidentified persons and fabricated charges against them including attempt to murder and causing obstruction to the police in the performance of their lawful duty, invoking among other legal provisions, Section 307 of the Indian Penal Code, 1860 (IPC). The police in connection with this false case, raided, assaulted, abused and humiliated the family members, relatives and fellow villagers of the victim. Even they arrested three innocent persons, namely Mr. Faruk Ahmed, Mr. Ibajul Hoque and Mr. Imamul Hoque, who were subsequently released on bail by the Guwahati High Court.

When, Mr. Saidur Rahmen, the person injured in the police firing, recovered a little and was released from the SMCH, the police arrested him again. There are good reasons to believe that the police might not have burnt the patrol post themselves but they did so with the help of hired criminals. In fact, the incident of burning down the patrol post is intriguing and indicative of a deeper and larger conspiracy. The manner in which the police was desperately over-active in hounding the people in relation to the case despite requests from various quarters not to harass and arrest the innocent people, is indicative of such a conspiracy.

At the intervention of BHRPC and based on the complaint of Alimun Nesa, a case was registered at Katigorah Police Station as Katigorah PS Case No. 484/07, dated 4 October, 2007 under Section 302 (murder) read with Section 34 (conspiracy to commit a crime) of the IPC against Tamuli, Assistant Sub Inspector Mr. Promod Nath and Police Constable Mr. Ramzan Ali Choudhury. The accused applied for an anticipatory bail at the Guwahati High Court and the court granted them an ‘interim bail’ with the direction to the accused to surrender before the trial court. At their appearance before the trial court all the three accused were remanded to judicial custody on 11 March, 2008. Later they were released on bail by the High Court. v

The Superintendent of Police (SP) of Cachar stated on 18 July 2008 that the investigation of the case is almost complete and the final case diary will be submitted soon to the court. It needs to be seen what duration constitutes this ‘soon’? vi

In a subsequent petition, the Guwahati High Court ordered that ‘[i]t is directed that if the case is not forwarded to the Crime Investigation Department (CID) the same shall be done immediately and the CID shall investigate the case in prompt and proper manner.’ vii

Does not the word ‘prompt’ mean ‘without delay’? How much time constitutes ‘delay’?

The BHRPC also submitted a complaint regarding the case before the Assam Human Rights Commission on 6 December, 2007. The Commission registered a case vide Case No. 6404/2007 dated 18 July 2008 and issued a notice to the state government asking for a report. The Commission sent a letter to the BHRPC with the report asking for its comments on the findings in the report. viii

The BHRPC on 3 December, 2008 sent its comments expressing its agreement regarding the conclusion drawn in the Magisterial Inquiry Report about the facts and circumstances concerning the death of Motahir and requested the Commission to allow an interim relief to the relatives of the victim by way of compensation and urged to recommend the prosecution of the perpetrators of the crime as it is the mandate of the Commission to do so under its constituting statute, the Protection of Human Rights Act, 1993.

The BHRPC, however, disagreed with the findings in the Magisterial Inquiry regarding its observations about setting fire on the police post and the GP office, the police firing on the people, registering of false case against them, the arrest of many protestors in connection with that false case and the harassment of many others. The BHRPC requested the Commission to conduct an independent investigation into these issues. But since then Commission did not respond, despite the BHPRC sending repeated reminders.

It was later known that a departmental inquiry into the incident was conducted by Mr. R.C Tayal, Inspector General of Police (IGP) and that the inquiry report was submitted to the government on 22 September, 2007. Pursuant to the report, the three accused were placed under suspension on 11 March 2008ix and a departmental proceeding initiated against them on 21 March 2008.x But nobody knows what happened to the proceedings and when and how the accused police officers got reinstated to the service. They were soon promoted.

Tamuli was promoted from the rank of Assistant Sub Inspector to Sub Inspector and secured a posting at Sadar Police Station, the main police station in Silchar city. Silchar city is regarded as the cultural and business capital of the entire Barak valley. BHRPC recently documented another case involving Officer Tamuli. xi

He was the investigating officer in a case registered at the Silchar PSxii and was also entrusted with the responsibility of the execution of a search warrant.xiii The complainant in both the cases was Mrs. Sharmista Das, a victim of domestic violence who was driven away from her matrimonial house by her in-laws who took away all her belongings that she received as her wedding gifts.

The victim alleged that Tamuli took bribe of Rs. 20,000 from her and demanded another Rs. 50,000 after illegally detaining her and two others when they visited the police station on 20 March, 2010. They had visited the police station to know about the progress of the investigation in the case. Social activists had accompanied Sharmista on that occasion. However Tamuli detained them demanding bribe. They could only come out of the station since the social activists who accompanied Sharmista had contacted their colleagues to secure their release from illegal custody.

When the entire system protects a murderer police officer there is little hope left to obtain justice.

The BHRPC filed an application on 24 May 2010 under the RTI, demanding the Assam Police to provide: 1) a copy of the report of the departmental enquiry into the custodial death of Motahir Ali; 2) details of the actions taken against the accused/responsible police personnel by the department; 3) if no actions have been taken the reasons thereof in detail; 4) details of the progress in investigation in Katigorah Police Station case No. 484/07; 5) details of the progress made and procedures taken by the CID in the case; 6) copy of the charge sheet submitted by the Katigorah Police or the CID in Katigorah PS Case No. 484/07; 7) if no charge sheet has been submitted the reasons thereof in detail with a copy of the final report regarding the case; and 8) any other information held by the office of the Director General of Police (DGP) or any office of the Assam Police regarding the order of the Guwahati High Court in Criminal Miscellaneous Case No. 484/07 and the custodial death of Motahir Ali. The BHPRC is yet to receive any reply for these questions.

In summary, here is a police officer who was once in-charge of a police patrol post in a remote village who arrests an innocent person, demands bribes and on refusal to pay torture the man throughout the night and kills him the next day in front of hundreds of people. The local people get agitated and demand immediate arrest of the killer officer. Police respond by opening fire at the public. The police also reportedly set fire to their patrol post and an adjoining public office allegedly for two reasons: to divert the attention of the public and to persecute the public for daring to protest against the murder by implicating innocent persons with false charges of arson, rioting, destruction of public properties etc.

After the intervention of human rights groups the police department conducts an inquiry and suspend the accused officers. A magisterial inquiry is also conducted which concludes that the officers killed the victim because his family could not meet the excessive demands for bribes made by the police officers. An FIR is also against them. The officers are arrested and then released on bail. On a petition, the High Court orders prompt investigation by the CID of the Assam Police into the case. The State Human Rights Commission also registers a case, issues notice to the authorities asking for report and then asks for comments from the petitioner on the report.

Meanwhile the officers get reinstated and their leader gets a posting in an important police station in the state with a promotion. Meanwhile the State Human Rights Commission also shelves the case file. No compensation to the victim’s family is paid even after 3 years. No charge sheet is filed and trial started against the officers. In the meanwhile the accused officer continues committing crimes and remains in active service.

The authorities cleverly deceived the public by showing that some actions are being initiated while indeed they were protecting the officers. This case, therefore, shows that the police officers will continue demanding bribes and in case of refusal they could hurt you or even kill you. The case proves that nothing will happen in consequence to the officers and after an initial period of suspension at the most, they will be soon reinstated to service and may be even promoted.

While top-ranking police officers discuss issues concerning policing in the country and express concern about their lost ground with the ordinary Indian in the 40th All India Police Science Congress, we wish that you will try to understand why the ordinary people of this country consider you as nothing more than criminals paid at our expense.

*The author of this article is a journalist and human rights defender associated with Barak Human Rights Protection Committee, a human rights organisation based in Assam, India. The author can be contacted at + 91 9401134314

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Footnotes:

i For cases of human rights violations with impunity see: VIOLATION CASES at http://bhrpc.wordpress.com/
ii For more information about BHRPC visit http://bhrpc.wordpress.com/
iii Magisterial Enquiry Report of Custodial Death of Motahir Ali vide NO. MISC. CASE. 1/2007/28 dated Silchar, the 9th April, 2008 published by BHRPC at the URL:http://bhrpc.wordpress.com/2010/05/25/magisterial-enquiry-report-on-custodial-death-of-motahir-ali/, accessed on 1 June 2010
iv Wali Laskar, Custodial Murder of Motahir Ali Tapader and Subsequent Police Atrocity in Barak Valley of Assam, Countercurrents.org, 31 October, 2007, accessed on 1 June 2010 at the URL:http://www.countercurrents.org/laskar311007.htm
v Order of the Gauhati High Court in B. A. No. 1074/08
vi Letter of the SP, Cachar addressed to ADC, Cachar vide No. G/SR/3680 dated 18/07/08
vii Order of the Gauhati High Court in Smti. Alimun Nesa Vs Shri Narayan Chandra Tamuli and others (Crl. M.C. No. 208 of 2008 in B. A. No. 1074/08)
viii AHRC CASE No. 6404/2007/14 dated 18-0702008
ix Assam Police Order vide D.O. No. 703 dated 21/03/08
x Assam Police Order vide DP No. 01/08, 02/08 and 03/08
xi BHRPC, Brief Summary of the BHRPC Fact-finding Report on Incidents of Extortion and Harassment of a Victim of Domestic Violence by Police in Silchar accessed on 1 June 2010 at the URL:http://bhrpc.wordpress.com/2010/05/25/brief-summery-of-the-bhrpc-report-on-sharmista-case/
xii Silchar PS Case No. 509/10 under sections 379 and 406, IPC
xiii A search warrant under section 94 of the Cr PC vide Case No. 155 M/2010; for details please see: Asian Human Rights Commission Urgent Appeal: Urgent Appeal Case: AHRC-UAC-075-2010 available athttp://www.ahrchk.net/ua/mainfile.php/2010/3466/

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

Posted on 2010-06-04

URL: http://www.ahrchk.net/statements/mainfile.php/2010statements/2583/

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INDIA: Will the 40th All India Police Science Congress consider the killer cop in Assam as one among them?


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