Posts Tagged ‘Indian army’

Indian reserve battalion soldiers assault a physician in Assam

April 2, 2012

A convoy of soldiers belonging to 22 Indian Reserve Battalion stationed at Kadamtala camp in Jiribam of Manipur state assaulted a physician at Jirighat market in Cachar district of Assam state on 29 March 2012 causing injuries and mental trauma. The incident led a scuffle between the local people and the soldiers causing some more injuries and a lot of fear and anxiety. The local people later blocked the53 National Highway(NH) forcing the police officers in both the districts to come over to the spot and take control of the situation. No complaint has been registered by the police against the soldiers and the victim is very concerned about his and his family members’ safety and security.

According to the information, the physician Mr. Dulal Biswas (age about 43, son of late N L Biswas) is a resident of Jirighat town under the Jirighat police station (PS) in the district of Cachar. Jirighat is a small town falling in the border ofAssamwith Manipur state. A tributary of the river Barak called Jiri separates Manipur fromAssamhere. On the other bank of the river falls Jiribam town in the Imphal West district of Manipur. Mr. Biswas is a registered medical practitioner and has been practicing medicines for some years. He runs his own private dispensary at Jirighat. He is a very respectable person in the town.

On 29 March he went to the market as usual to buy household stuffs and some vegetables at about 8am in the morning. He was riding a motor bike. Things went wrong when he was crossing the road after two Bolero cars passed him. He had to stop in the middle of the road as the Bolero car ahead of him stopped suddenly. But another Bolero car collided with the bike powerfully from behind. Though Mr Biswas fell down with the bike he did not sustain much injury. After he got up he demanded from the driver of the colliding car an explanation as to why he was driving so rashly in the market place. After exchange of a few words the driver got down from the car brandishing a stick. Some other soldiers in uniform also came out with their guns in hands. One of them put the pointed gun on the chest of Mr. Biswas and others punched and kicked him incessantly for a while. At that time some other soldiers who were buying alcohols from a nearby shop started shouting and hurling verbal abuses at Mr. Biswas and other people. It is these soldiers who suddenly stopped their car ahead of Mr Biswas’ bike and partially responsible for the accident. When they rushed towards Mr. Biswas many other people in the market started running, some to other directions but many towards the spot. It caused a great commotion and confusion and helped Mr. Biwas to go away. Although such disturbances by the military and para-military personnel at public places is a part of life in this part of the country, a section of the public lost their cool and tried to gherao the soldiers. When soldiers threatened to open fire the people started pelting stones here and there missing targets. The stones touched none. On the other hand, it facilitated escape of the soldiers.

Fearing retaliation from the IRB the people decided to seek permanent solution of such disturbances that has become a part of their lives through peaceful means. They blocked the NH 53 that connects Cachar district administrative headquarters Silchar with Imphal, the capital of Manipur. At this point, the Officer-in-Charge (OC) of Jirighat PS Mr S C Kaman came out and tried to persuade the people to disperse. However, people demanded talk with the authorities from Manipur as the battalion was stationed in that state. Accordingly he informed administration of Jiribam sub-division. A team led by OC of Jiribam PS Mr L Khagen Singh, an officer of Manipur police commando Mr O K Yumnam and another officer of crime investigation department (CID) of Manipur police was sent from Jiribam. At the arrival of the Manipur delegation the blockade that lasted only half an hour from 9am to 9.30am was lifted to hold talk. As a result of the talk that was held at the office of the local village defence party (VDP) the officers who came from Manipur apologized to Mr Biwas and the public on behalf of the assaulting soldiers. They also promised that some money would be paid to Mr Biswas for repairing his bike and such incident would never be repeated again; but it was on the conditions that Mr Biswas or the people should not complain to any authorities and courts.

Mr Biswas’ bikes’ registration number was AS 11 F 2993 and one of the cars of soldiers borne the registration number MN 02 A 4695.

It is learnt that the soldiers belong to 22 IRB stationed at Kadamtala under Jiribam PS in Manipur. They were returning from Kumbhirgram airport in Silchar where they went escorting Mr Chartolien Amo, member of Manipur legislative assembly (MLA) from Churachandpur constituency.

The local people told the BHRPC that they did not believe the promises made in order to lift the blockade as it came with veiled threats that the victim should not seek redress. Mr. Biswas appeared mentally traumatised and talking incoherently. He was very concerned. The physical injuries that were caused to his body by punching and kicking were by no means negligible, though it appeared lesser than the wound he sustained at his heart by being humiliated at the marked place in front of so many people who revered him so much. He was very concerned that the soldiers may harm his family, particularly his two young children, aged about 7 years and 10 years and were studying at class II and V respectively. He kept repeating that his two kids had to go to school and that is why he did not want to talk with reporters and human rights defenders.

It is clear that the soldiers, prima facie, committed many offences including the crime of attempt to murder and crime against public peace and tranquillity and violations of the right to life with dignity and security of person as enshrined in Article 21 of the Constitution of India and many international human rights instruments to which India is a state party.

The police officers also violated his right to seek truth, justice and reparation in case of violations of any rights recognised by either the Indian domestic laws including the constitution or the international human rights laws by not registering a first information report (FIR) and trying to hush it up. The right to truth, justice and reparation is also guaranteed under the constitution as well as many international instruments.

The BHRPC sent a complaint on 2 April to the National Human Rights Commission (NHRC) and other authorities including the prime minister of India, chief ministers of both Assam and Manipur, union ministers for home affairs and defence expressing concern over the safety and security of the victim, his family and particularly his school going kids and other witnesses and urged them to take appropriate actions to ensure their physical and psychological integrity and safety, a prompt and impartial inquiry/investigation and registration of first information report (FIR) leading to truth, adequate reparation to the victims and prosecution of the alleged perpetrators in accordance with the criminal law of the land and universally recognised rules of criminal jurisprudence and other appropriate measures to ensure that such incident does not recur in the future.

2 April 2012

Guwahti-6,Assam

For further information please contact:

Waliullah Ahmed Laskar

wali.laskar@gmail.com

+91 94019 42234

Submission of BHRPC to the UN Special Rapporteur on summary executions

March 28, 2012

The few representative cases submitted here clearly show the abysmal state of lawlessness which people live in.  Life here is virtually “solitary, poor, nasty, brutish and short” (as was claimed by Thomas Hobbes in his The Leviathan) for some people, particularly those who belong to the vulnerable groups such as minority communities, working class.

The alleged perpetrators in some of the cases belong to the armed forces ofIndiawhether regular military or para-military operating invariably under the Armed Forces (Special Power) Act, 1958. The Act empowers members of the armed forces to use lethal force against civilians even to the causing of death on mere suspicion that they may act in breach of any law or any order along with the power to enter into any doweling places by breaking their entrance and search and seize anything without warrant and arrest any person without warrant and keep the arrestees in custody for unspecified times without charge in the valley along with the rest of Assam and parts of some other North East Indian states and Jammu and Kashmir. The AFSPA also places the army above the law, constitution and judiciary for acts claimed to be done under the Act by barring institution of prosecution, suits or any judicial procedure in any court inIndia.

Some other cases of extra-judicial execution noted above were perpetrated by the state police who operate under a state version of the AFSPA titled the Assam Disturbed Areas Act, 1955. Along with these special security laws with draconian provisions and laws like the Unlawful Activities Prevention Act, the regular law that governs the policing in Assam is the Assam Police Act, 2007, which was enacted apparently to comply with the requirements of the directives issued by the Supreme Court of India in Prakash Singh and Others vs. Union of India (also known as the police reform case), in essence conform more with the colonial-era Police Act of 1861. The colonial police law was not aimed to provide democratic policing. It meant to create a repressive force subservient to ruling class and devoid of any accountability to the law and people.

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

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.

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)

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 inIndiashows 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.

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 and

7. To separate investigation and law and order function of police.

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 newly enacted Assam Police Act says that the Act only partially complies with the directives:

State Security Commission was established but the composition is not as per the Supreme Court directive. The Act has also weakened the mandate of the commission and has made its recommendation non-binding.

The second directive regarding selection process of the DGP and guarantee of his tenure not complied.

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.

Police Establishment Board was set up but the mandate was not adhered to. 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.

The Central Government did not establish National Security Commission in utter contempt of the judgment.

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. But the Chairperson and members of the Commission are appointed directly by the government. This can, at best, be called partial compliance.

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 formerAssamdirector-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 theAssamAdministrativeStaffCollege, 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.

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”.

The cases cited also highlight another huge challenge to the civil and political rights inAssamwhich is non-adherence and non-implementation of laws and other instruments that are meant to protect such rights. The Supreme Court guidelines in DK Basu case, and NHRPC guidelines regarding arrest, custodial deaths have the potential to drastically reduce the number of extra-judicial executions 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.

It may be noted that in many of the cases mentioned no magisterial inquiry was conducted in contravention of the statutory mandate of section 176 of the Code of Criminal Procedure, 1973. In the cases where such inquiries are conducted the magistrates employed were not judicial ones as is mandate of the law. Although even the executive magistrates when found in their inquiries the guilt of the accused police personnel established beyond doubt, neither prosecution has been started nor has any compensation been provided to the kin 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 is responsible for the increase of the cases of extrajudicial killings.

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BHRPC submits cases of extra-judicial executions in Barak valley to the Special Rapporteur

March 28, 2012

Guwahati, 28 March: “Ours is a case of doing works of police by the army and using the regular state police by ruling politicians as their personal army” said Waliullah Ahmed Laskar during his oral presentation at the North Eastern regional briefing to the United Nations special rapporteur on extrajudicial, summary or arbitrary executions held today here at Ashoka Brahmaputra hotel. Mr. Laskar, director of law and legal affairs of the Barak Human Rights Protection Committee (BHRPC) added, “although there are no terrorist activities and any home grown insurgent groups in Barak valley that can pose a threat to the national integrity and security the Armed Forces (Special Power) Act, 1958 is in force in the valley along with the rest of Assam and parts of some other North East Indian states and Jammu and Kashmir. The Act empowers the army personnel to use lethal force against civilians even to the causing of death on mere suspicion that they may act in breach of any law or any order along with the power to enter into any doweling places by breaking their entrance and search and seize anything without warrant and arrest any person without warrant and keep the arrestees in custody for unspecified times without charge. The AFSPA also places the army above the law, constitution and judiciary for acts claimed to be done under the Act by barring institution of prosecution, suits or any judicial procedure in any court inIndia.” He further added that the state police also operate under a similar draconian law called the Assam Disturbed Areas Act, 1955 and showed how the Assam Police Act, 2007 is a fraud on the people as well as on the Supreme Court of India in so far as it claims to conform with requirements of directives issued by the supreme court in Prakash Singh and others Vs. Union of India and others.

He also submitted a report to the special rapporteur professor Christof Heyns, who is on a fact-finding mission inIndiafrom 19 March to 30 March, containing cases of extra-judicial or arbitrary killing of innocent people both by the state police and armed forces of the central government. Cases that were submitted include 1. killing of one Islamul Hoque Choudhury (of Sonai, Cachar) by police because he became to threat to them as he witnessed how they tortured another person to death, 2 extra-judicial killing of Hashmat Ali (Kalain, Cachar) by police after being bribed by another person to teach him a lesson, 3. death of Motahir Ali (Kalain, Cachar) caused by torture in police custody as his family could not pay the amount of bribe demanded by the police for his release, 4. death of Mr. Moyfor Raja (Katlicherra, Hailakandi) in police custody due to torture, 5. fake encounter killing of Jamir Uddin (Katlicherra, Hailakandi) by central reserve police force personnel, 6. death of Iskandar Ali (Dholai, Cachar) caused by indiscriminate firing of  CRF personnel at a market place, 7. killing of a car driver by police apparently for speeding and 8. extra-judicial execution of Iqbal Hussain Laskar (Algapur, Hailakandi) by army after they picked him up and some other cases.

The BHRPC urged the special rapporteur to recommend to the authorities inIndiato 1. to repeal the Armed Forces (Special Power) Act, 1958; 2. to repeal the Assam Disturbed Areas Act, 1955; 3. to make the Unlawful Activities Prevention Act, 1967 compatible with international human rights standards by amending the Act; 4. to bring the Assam Police Act, 2007 in conformity with the directives of the Supreme Court of India through amendment; 5. to amend the Protection of Human Rights Act, 1993 to extend the jurisdiction of both the state and national human rights commissions to conduct independent inquiries into cases of alleged human rights violations by the armed forces and to lengthen the limitation period of one year to five years; 6. to constitute an independent commission headed by a retired chief justice of a high court or the supreme eligible to be appointed as the chief justice of India with adequate numbers of members from the civil society to conduct time-bound inquiries into all allegations of extrajudicial, summary or arbitrary executions leading to the initiation of prosecution and provision of adequate reparation; 7. to constitute special courts to conduct trial of all cases of extrajudicial, summary or arbitrary executions under direct monitoring of the Supreme Court of India; and others.

At the meet presided over by Justice W A Shishak, former chief justice of the Chhattisgarh high court, Mr Babloo Loitongbam of Human Rights Alert (Manipur), Ms. Bubumoni Goswami, chairperson of the Manabadhikar Sangram Samiti (MASS, Assam), Ms Rosanna Lyngdoh of the Impulse NGO Network (Mehgalaya), Taring Mama of the Association for Civil Rights (Arunachal Pradesh), Neingulo Krome of the Naga Peoples Movement for Human Rights (Nagaland), Anthony Debbarma of the Borok Peoples Human Rights Organisation (Tripura) and others also made both oral and written submissions.

The special rapporteur who is accompanied by the UN human rights officer Irina Tabirta and other staff said in his concluding remark that he was thankful to the government of India for extending invitation to his mandate to the country and he assured the participants that he would take up the issues raised here with the government of India and is going to have a press conference in Delhi on 30 March where he would share his preliminary recommendations. He is expected to submit his report on the situation of extra-judicial execution inIndiato the UN human rights council and the General Assembly of the UN at the end of this year.  (Submission of BHRPC to the SR on Summary Execution)

Neharul Ahmed Mazumder

Secretary General,

Barak Human Rights Protection Committee

Illegal raid and Intimidation of human rights defender, Seram Herajit Singha by the army in Assam, India

January 21, 2012

Barak Human Rights Protection Committee (BHRPC) received information regarding intimidation of human rights defender, Seram Herajit Singha and harassment of his family by Armed Forces personnel and Assam Police personnel. It is reported that a team of about 20 armed persons raided his house at mid-night on 5 January, 2012 looking for him. But he was not home at that time. There is concern about his and his family’s physical and psychological security.

 Seram Herajit Singha, aged about 27 years and son of S. Amuyaima Singh, is a permanent resident of village Serunkhal, Rongpur Pt-II in the district of Cachar,Assam. He is a well-known social activist working in the fields of wild life and environment and issues relating to Manipuri community living in BarakvalleyofAssam. Currently he works at the Committee on People and Environment (COPE) as Organising Secretary since its establishment in 2009. The COPE has been working for protection of environment and wild life mainly through awareness building among the people by seminar, public meeting etc. At present the activities of COPE is more focused on the campaign against the proposed dam on the river Barak at Tipaimukh for its apprehended devastating affect on the downstream area.

 According to the information, in the dead of night at about 1am on 5 January, 2012 about 20 person carrying guns and sticks raided the houseS Herajit. Some of them were in uniform and others wore civil dress. After they woke up Herajit’s father, mother and younger brother the soldiers told them that they were looking for Herajit. The family informed them that he was not home, as he had gone to Guwahati for works of his organization. The raiding party asked some questions about the activities of Herajit. On inquiry some of the soldiers informed only that they are from Armed Force but did not tell which regiment they belonged to. One of them was in police uniform and he identified himself as a constable of Assam Police posted at the Rongpur Police Outpost at Madhuramukh under Silchar Sadar Police Station.

 The family was shocked and fear-stricken at this mid-night raid. They thought that the soldiers came with malafide intention which might have been even physical termination of Herajit. Because there was no criminal complaint registered with the police against him and he is a responsible and peace loving law abiding citizen. Such a raid at mid night by the army is not warranted for the purpose of law enforcement at any event. Since then he and his family have been living in uncertainty and fear. It is not unreasonable to think this way in this part of the country since many cases have been documented where the worst happened in this way.

 When contacted, the district Superintendent of Police (SP) pleaded ignorance of such a raid but assured of an inquiry. The officers of the nearest army camp at Pailapool denied that any such raid was conducted by them. However, the police officers at the Rongpur Outpost said that they were asked by the army the day before to make available one or two constables for a raid in the night and accordingly they delegated a constable. They refused to say anything more abut the identity of the army personnel or the purpose of the raid. As still no visible steps have been taken by the SP, Herajit, his family and his organization lost faith in his assurance.

 BHRPC thinks that the raid was conducted to intimidate and harass Herajit and his family for his legitimate works relating to human rights of the people to clean environment and particularly his works in the campaign against the proposed dam at Tapaimukh in Manipur launched by the COPE.

 Human rights works including environmental rights by peaceful and democratic means is both duty and rights of every individual as spelt out in the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (also known as The Declaration on human rights defenders. Particularly Article 12 of the Declaration imposes duty on the State to “take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or dejure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.”

 Under Article 20 f the Universal Declaration of Human Rights everyone is given the right to freedom of peaceful assembly and association which includes forming and working in non-governmental organizations. The UDHR also provides in Article 12 that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

 The conduct of the soldiers also amounts to interference in due process rights laid down in Article 14 of the International Covenant on Civil and Political Rights to which India is a state party including Article 17 that states that “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” and “2. Everyone has the right to the protection of the law against such interference or attacks.” and Article 22 which provides that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”

 Further more, the right to form association and unions is also guaranteed in Article (c) (1) 19 of the Constitution of India.

 Clause (d) of sub-section (1) of section 2 of the Protection of Human Rights Act, 1993 defines human rights as “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts inIndia.” The Act also mandates the National Human Rights Commission to 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; under section (a) 12 and to encourage the efforts of non-governmental organisations and institutions working in the field of human rights under clause (i) of the same section.

 In the circumstances of the facts of the case and the human rights laws and norms it is imperative that the authorities inIndiashould:

 1. Initiate an immediate, impartial and exhaustive investigation into the reports of illegal raid and harassment of family of human rights defender and COPE member Herajit Shingh;

 2. Take all necessary measures to guarantee the physical and psychological security and integrity of S. Herajit Shingh and his family and all members of COPE and their families;

 3. Guarantee that human rights defenders inAssamare able to carry out their legitimate human rights activities without fear of reprisals, and free of all restrictions including police harassment.

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.

AFSPA: A blotch on democracy in India

August 20, 2011

The Asian Human Rights Commission, REDRESS Trust UK, and Human Rights Alert, Manipur, India jointly authored and published a report on the Armed Forces (Special Power) Act, 1958 titled: The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the Northeast of India: Sanctioning repression in violation of India’s human rights obligations on 18 August, 2011.

The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the Northeast of India: Sanctioning repression in violation of India’s human rights obligations

The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the Northeast of India: Sanctioning repression in violation of India’s human rights obligations

In a statement jointly issued issued on 18 August, 2011 by AHRC, REDRESS and HRA it is claimed that a draconian legislation like the Armed Forces (Special Powers) Act, 1958 and the concept of democracy do not go together. While democracy nurture values of justice, equality and fraternity, laws like the AFSPA are synonymous with injustice, discrimination and hatred. A report that analyses the legislation’s complete incompatibility with India’s domestic and international human rights obligations is released today in India, Hong Kong and London. Human Rights Alert, a human rights organisation working in Manipur, India; REDRESS Trust, a human rights group based in London, UK; and the AHRC, a regional human rights body based in Hong Kong have jointly authored the report.

It is also stated that the report while analysing the Act draws extensively upon international and domestic human rights jurisprudence, that India is mandated to follow. The report exposes the visibly different standards even the Supreme Court of India has adopted while deciding the constitutionality and thus the compatibility of the law with India’s international and domestic human rights obligations. Despite repeated calls to repeal the law immediately by government-sponsored Committees that have studied the law, the Government of India is yet to take any steps in that direction. International human rights bodies like the Human Rights Committee and the Committee on Racial Discrimination have expressed concern about the law and its implementation in India, suggesting that the law should be repealed.

The law has attracted, repeatedly, wide-ranging criticisms from jurists, human rights activists, and even politicians within India and abroad. Organisations like the AHRC and Human Rights Alert have documented more than two hundred cases, over the past eight years, where the state agencies operating under the statutory impunity provided by the Act has committed serious human rights violations in states like Manipur. Most of these cases has been reported by the AHRC through its Urgent Appeals Programme and brought to the attention of authorities in India and within the United Nations. Yet, so far not a single military or police officer has been prosecuted for the human rights abuses they have committed under the cover of impunity provided by this law.

The report also places emphasis upon the unique form of protest by Ms. Irom Chanu Sharmila, through her decade-long hunger strike, which has been largely ignored by the national media in India.

The report could be downloaded here.

For comments on the report you may contact:
1. Mr. Babloo Loitongbom
Human Rights Alert
Manipur, India
Tel: + 91 385 2448159

2. Mr. Serge Golubok
REDRESS
London, UK
Tel: + 44 20 7793 1777

3. Mr. Bijo Francis
AHRC
Hong Kong
Tel: + 852 2698 6339

Reports of other human rights organisations

January 30, 2011

Selected reports of other human rights/civil society organisations:

Human Rights in India: Status Report 2012

This brief status report of human rights in India gives a general overview of the most critical human rights issues in India today. It has been drafted by the Working Group on Human Rights in India and the UN (WGHR), a platform of some of Inida’s important human rights groups, as a background document to assist in the preparation of India’s second Universal Periodic Review (UPR) that took place in Geneva on 24 May, 2012. (Read more)

Other civil society groups corroborate hunger deaths in Assam tea garden

A civil society group comprising of several non-government organisation presented report of their study on the starvation deaths of workers in the Bhuvan valley tea estate in Assam on 25 February 2012 before media in Guwahati that corroborated reports of the Barak Human Rights Protection Committee (BHRPC) The Guwahati based civil society group further claimed that ”twelve people have died due to starvation and the condition of 45 other labourers is still serious in the Bhuban Valley tea estate. The management decided to close down the estate Oct 11, 2011 and it led to starvation as the labourers have no other option to earn their livelihood.” The preliminary report that they have issued is posted here.

Mega Dams In North-East India: Are They Necessary?

A civil society group from across the country studied the impact of mega-dam projects on life and livelihood of the people in North East India. The group in its interim report demanded suspension of construction of dams until a cumulative study that engages with the people finds it beneficial to go ahead with the projects. The report as published in the Countercurrents.org is re-posted here.

India: Moving Towards the New Police State

How is the Government of India moving to make the country ‘a new police state’ by arming its security agencies with the power of arrest without warrants and how do these moves infringe the sacrosanct principles of federalism of Indian Constitution and undermine the supremacy of the judiciary?  The weekly commentary and analysis of the Asian Centre for Human Rights(ACHR) issued on 23 April explores these questions. The Barak Human Rights Protection Committee re-posts the commentary here.

AFSPA: A blotch on democracy in India

The Asian Human Rights Commission, REDRESS Trust UK, and Human Rights Alert, Manipur, India jointly authored and published a report on the Armed Forces (Special Power) Act, 1958 titled: The Armed Forces (Special Powers) Act, 1958 in Manipur and other States of the Northeast of India: Sanctioning repression in violation of India’s human rights obligations on 18 August, 2011. (Read more)

HRW Report: Impunity in Manipur

.

HRW Report: Impunity in Manipur

January 30, 2011

Human Rights Watch Report:

“These Fellows Must Be Eliminated”

Relentless Violence and Impunity in Manipur

September 29, 2008

This 79-page report documents the failure of justice in the state, where for 50 years the army, empowered and protected by the Armed Forces (Special Powers) Act (AFSPA), has committed numerous serious human rights violations. The report details the failure of justice in the killing and possible rape of alleged militant Thangjam Manorama Devi by the paramilitary Assam Rifles in 2004. Repeated attempts to identify and punish those responsible for her death have been stalled by the army, which has received protection under the immunity provisions of the AFSPA.

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Ikbal Hussain: Fresh victim of extrajudicial execution in Assam

January 10, 2011

Ikbal Hussain: Fresh victim of extrajudicial execution in Assam

The latest civilian victim of extrajudicial execution in the northeast state of Assam is Ikbal Hussain Laskar – who was tortured to death by army men on October 9, 2010. The state had counted more than 150 extrajudicial civilian deaths in 2009.

According to information received by Barak Human Rights Protection Committee (BHRPC), an Assam based human rights organization of Assam, soldiers of Indian Army illegally raided a family at midnight and took Ikbal forcefully after torturing him severely and then torture continued resulting in his death. Ikbal Hussain Laskar, 42, belonged to the village of Chiparsangan, Part – III, under Algapur Police Station of Hailakandi district, Assam. He was tortured to death on 9 October, 2010 allegedly by the Army personnel belonging to 117/36 Artillery Field Regiment/ DTY COB, Manipur, Hailakandi, Assam.

According to Home Ministry’s annual report in 2009, 368 people, including 152 civilians, were killed in 424 incidents in Assam. Civilian death is the slow intensity war in north east India has wide prevalence. Extrajudicial execution is arbitrary deprivation of life by denying right to life and right to a fair trial. It is a kind of capital punishment by the state authorities without the Court’s verdict after a fair trial. Such executions are witnesses in north east India especially Assam and Manipur for decades under the umbrella Act called the Armed Forces (Special Powers) Act, 1958. Instances of extra judicial executions in the state of Assam and Mnaipur are going on without much visible remedy.

According to the field study conducted by BHRPC the sequence leading to the death of Ikbal indicates extrajudicial execution. The incident narrated by BHRPC is that on 9 October, 2010 at around 3:30 am when Ikbal was sleeping in his residence with his family members including his wife and 3 daughters. Suddenly he woke up hearing the sounds of someone calling him and knocking at the gate of his house. The caller identified as police officer and said that he wanted to ask something to Ikbal. Ikbal came out and opened the gate of his verandah. Instead of asking any questions, the visitor identifying as police caught him by the hand and dragged him toward the north side of the building where 5 other soldiers in uniforms started beating and kicking him without any rhyme and reason. Ikbal was stunned with these sudden unexpected developments and it took some time for him to realize the situation. He started crying and screaming in despair. Family members too became shocked at the developments and urged the soldiers in uniform to stop beating Ikbal. Then the family members realized that their house is cordoned off by about fifteen soldiers. Neighbors started rushing to the spot but were denied entry by gun men who were posted at the entrance.

The soldiers tortured Ikbal severely and then forced him to wash his face and change dress. Then they forcefully boarded him in a vehicle that they brought and continued to beat him.

Ikbal’s wife Parul Begum Laskar, aged about 38, daughters Adiba Ikbal Laskar (also known as Salmi) (19), Tahmima Ikbal Laskar aka Sammi (14) and Ajuba Ikbal Laskar aka Simi (9) informed members of BHRPC that when they were beseeching the army to stop the infliction of brutalities on Ikbal they were shown guns and asked to keep silence. The family also informed BHRPC that the army forced them to put their signature on a piece of paper where something was written but were not allowed to read the contents. They were also warned not to approach the police or file any complaint, otherwise they will have to face dire consequences, the raiding army told them. The army personnel took away two mobile sets, of which one was having a SIM card with phone No. +919707142785, one torch light and one mobile charger. The army gave them two mobile numbers 09508548935 and 094013210458 for contact.

The incident of Ikbal’s illegal detention was witnessed by several family members including Labib Ahmed Laskar (38), brother of Ikbal. He informed the BHRPC that when he rushed toward his brother’s house from his adjacent house at midnight hearing hue and cry, he was stopped at gun point by the army. He saw his brother was being beaten by the army from a distance of 15 feet. He saw his brother was severely injured; as a result, he was rendered unable even to walk toward the army vehicle. The Army came with two vehicles (TATA Sumo).

When army took away Ikbal, the villagers tried to contact the Officer-in-Charge (OC) of Algapur Police Station Mr. Baktar Uddin over the phone. The OC informed them that he was ignorant about the operation. Then the family members approached the former Minister of Assam Mr. Shahidul Alom Choudhury. Mr. Choudhury then called the army of Manipur camp at around 7am. The army personnel told him that they had arrested Ikbal on wrong information and that he would be released soon. He then again called the army at around 12 noon on that day i.e, 9 October and got the same reply.

Several individuals tried to help the family. Mr. Anwar Uddin Barlaskar, a retired district judge, Mr. Labib and Mr. Sabib met the Superintendent of Police (SP) of Hailakandi at around 8:30am on behalf of the victim family and the villagers. The SP informed about the operation assuring follow up. The SP also told them a meeting of Army officers, district police and district administration was held the previous day where it was made sure that there would be no operation without any prior information to the police They then met the District Magistrate of Hailakandi at his residence. He also expressed his ignorance about the operation and he committed that he would find out the victim. At around 1pm some army personnel came to the victim’s house and asked for any earlier medical records of the victim related to heart or abdomen. But there were no such records. At that time they informed that the victim is at Silchar Medical College and Hosptial, Silchar and his health was deteriorating. The victim’s family then went to the SMCH and found him dead at 3pm.

With the death of an innocent civilian like Ikbal, local people started protesting it and thousands of people gathered at Chiparsangan area and blocked the road. The SP Mr. Hemanta Bhattacharya and the DM Mr. Tapan Chandra Goswami came at Chiparsangan and assured of a judicial enquiry including the post mortem examination would be conducted at day time and it would also be video recorded. At these promises the public lifted the blockade. The next day, 10th October, at about 5:30 pm, after the post mortem was held, the dead body was handed over to the family.

The BHRPC members also met Mr. Abdul Basit Choudhury, OC, Algapur PS (reinstated) at the house of the victim and collected information about the case. The OC informed that a case was filed by the victim’s wife Parul Laskar which was registered as Algapur PS case no.243/10 dated 09/10/10 under sections 302, 365 and 310 of the Indian Penal Code, 1861 and another case was also filed by Lieutenant Naveen Kumar which was registered as Algapur PS case no. 244/10 dated 09/10/10 under sections 489b and 489c, IPC. The OC was made the investigating officer of the case that was registered regarding the incident. He told that a home guard named Abdul Shukkur Barbhuiya from Kathlichera PS accompanied the army and he is the main witness of the incident. The OC also told that the army took the victim to the army camp, then to a primary hospital and then to the S. K. Roy Civil Hospital of Hailakandi and ultimately to the SMC Hospital where he was declared dead. The latter described that the accused Ikbal was found to keep some fake currencies and that the complainant had taken him to the said hospitals and there was nothing mentioned about the death.

Mrs. Parul Laskar (38), wife of Ikbal is a social activist and she is the counselor of the family counseling centre run by Assam Enviro-Legal Protection Society. Lt. Ikbal Hussain Laskar was one of the 7 brothers, very loving and adorable by the family members who share a joint family. Ikbal and Labib have recently constructed a new house as joint family property but his untimely brutal murder deprived him from enjoying his family life in the newly constructed house.

Car driver Fakhrul Islam ‘beaten to death by Assam police’ for speeding

January 10, 2011

Car driver Fakhrul Islam ‘beaten to death by Assam police’ for speeding

Acting on the information provided by Barak Human Rights Protection Committee (BHRPC), The Asian Human Rights Commission (AHRC) has condemned the ‘killing of car driver Fakhrul Islam by Assam police for speeding’, and written to UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment seeking an intervention in the case.

The AHRC states, the local police in Hailakandi district, Assam state, has beaten to death the driver of a car because he refused to stop his vehicle when ordered by the police. It is reported that the police officers, led by the District Superintendent of Police, Mr. Maheshchand Sharma, chased the victim, Mr. Fakhrul Islam Mazumder, in their vehicle for a while before apprehending him. When Fakhrul stopped his vehicle, the police pulled him out, assaulted him with rifle butts until he was unable to move and threw him into a nearby lake. It is not known whether Fakhrul died of drowning or from the assault. The entire incident happened in full public view.

Case Narrative

According to the report of the Barak Human Rights Protection Committee sent to the AHRC, the incident happened on 13 September at about 8 pm on National Highway 154 near Bakrihaor.

The deceased, Fakhrul, aged about 26 years, son of Muzammil Ai Mazumder of Ward number 11, Hailakandi Town, Assam was coming from Silchar to Hailakandi driving a car with vehicle identification number AS-11C-9494 along National Highway 154. When he reached Bakrihaor, he was signalled to stop his car to give way for a convoy of police vehicles in which Mr. Maheshchand Sharma, the District Superintendent of Police was travelling.

The police vehicles were coming from the opposite direction in which the victim was travelling. It is common in India for the police to stop vehicles on the street for the police to travel at high speeds without traffic blocks, even if it is not an emergency. Drivers usually comply fearing abuse, assault and fabricated traffic offences charged upon them. However, Fakhrul refused to stop his car and drove past the police vehicle convoy, an act that apparently infuriated the police officers.

It is reported that the police officers chased Fakhrul’s car for a short distance and soon intercepted his vehicle. According to eyewitnesses, Mr. Akram Uddin Laskar, Mr. Selim Uddin, and Mr. Bahar Uddin and many other people from the locality, the police then forced Fakhrul to come out of the car. When he came out of the vehicle, the police started beating Fakhrul severely with rifle butts. Five to six police officers took turns to assault Fakhrul. When they stopped for a minute, Fakhrul gathering strength, tried to run away.

The officers chased Fakhrul on foot for a short distance and stopped him again and continued assaulting him. This time however, they did not stop until they threw Fakhrul into the Bakrihaor Lake, which is by the roadside. The officers then left the scene. The incident caused traffic jam for a while. No one dared to intervene in the police action however, as they were afraid of the police.

Fakhrul’s body did not surface till 1 pm the next day. A large crowd gathered around the lake till the body was brought out from the water. Those gathered include Mr. Rahul Roy, Member of Assam State Legislative Assembly (MLA) from Algapur constituency, Mr. Selim Uddin, MLA and Mr. Shahidul Alom Choudhury, a former minister of the Assam state government.

The crowd soon started shouting slogans against the police and temporarily prevented the police from taking the body for autopsy. Fearing violence, the political leaders present at the scene guaranteed that they would ensure stern actions taken against the police officers responsible for the crime. They also guaranteed that the entire autopsy would be video recorded.

On 15 September, the Progressive Students’ and Youth Front and the District Drivers’ Association called for a general strike in protest of the murder. In response, the district administration ordered a magisterial inquiry into the incident and ordered the Superintendent of Police to be on leave and stay away from office temporarily. In follow-up, a complaint was lodged at the Hailakandi Police Station against the police officer, with an expectation that a criminal case will be registered and an investigation undertaken.

However upon enquiry, it is learned that the police is trying to influence the investigation to absolve from their responsibility in committing the crime. It is also feared that the witnesses will be threatened by the police, and under intimidation, they would not depose in the inquiry.

Additional Information

The minority Muslim community dominates Hailakandi district, where the incident took place. The public protest that followed after the recovery of the victim’s body demanded an investigation and stern actions against the police officers involved in the incident. Registering a case and conducting an investigation is a primary requisite under the Indian law in every case of unnatural death.

However, fundamentalist Hindu political parties like the Hindu Jagaran Manch (HJM) with support from the Baratiya Janatha Party (BJP) and its militant wing the Rashtirya Swayamsevak Sangh (RSS) have brought in an unnecessary religious twist into the incident by coming out in support for their ‘Hindu brother’, none other than the perpetrator police officer, Mr. Maheshchand Sharma, offering him the support of the three political parties. According to them, the public anger is nothing more than an unnecessary rant against a Hindu police officer by the Muslims. This has divided the community along religious fault lines.

The HJM is accused of having masterminded the Malegaon bomb blasts of September 2006. 37 persons were killed and an estimated 148 persons injured in that incident.

The fact that a driver was murdered in open by the police officers and that the case must be investigated and the perpetrators punished no more appear to the issue that dominates the debate in Assam concerning the crime. The discussions on the question of murder by uniformed officers have fallen prey to the political trick played by the HJM, BJP and the RSS, where the question of murder is sidelined, and instead, the questions of religious affinities have sprang up. This is the very purpose of the public support orchestrated in favour of the accused police officer by these political parties.

By stirring up religious sentiments, for and against the officer, it is believed that the investigation of the case will be delayed or never completed. Already the District Magistrate has issued a prohibitory order under Section 144 of the Criminal Procedure Code, 1973, disallowing the public from gathering for any reason without the prior permission of the authorities and the police.


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