Archive for the ‘Documents’ Category

UN questions ‘statelessness and disenfranchisement’ of ‘minority groups’ in Assam

September 26, 2018

Special Rapporteur’s report to UNGA highlights plight of Bengali Muslims

UN-Human-Rights-Feature-Image

The UN Special Rapporteur has once again raised the issue of possible statelessness of millions of people in Assam in wake of the exclusion of their names from the National Register of Citizens (NRC). This is part of a report titled Contemporary forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance that was presented before the UN General Assembly.

The 22 page report condemns “nationalist populism that advances exclusionary or repressive practices” and addresses “ascendant nationalist populist ideologies and strategies that pose a sobering threat to racial equality by fueling discrimination.”

Over 4 million people have been left out of the NRC final draft! Most of them belong to socio-economically backward communities and live in rural areas. Many of them are women and children!

On the subject of the exclusion of minorities from the NRC in Assam, the report says,

Nationalist populist parties in other places have implemented administrative and other rules leading to the exclusion of minority groups from official citizen registries on the basis of claims that they are irregular migrants, notwithstanding evidence showing that they are entitled to citizenship. This in turn has led to statelessness, disenfranchisement and increased vulnerability to discrimination, including the denial of basic rights and access to public services such as health and education.

In May 2018, the Special Rapporteur addressed a letter to the Government of India concerning the updating of the National Register of Citizens, a process governed by local authorities in the state of Assam. The letter drew attention to the heightened concerns of the Bengali Muslim minority, who have historically been portrayed as foreigners despite having lived in India for generations, even preceding the colonial era. Since 1997, the Election Commission of India has arbitrarily identified a large number of Bengali people as so – called “doubtful or disputed voters”, resulting in their further disenfranchisement and the loss of entitlements to social protection as Indian citizens.

While many have affirmed that the updating process is generally committed to retaining Indian citizens on the National Register of Citizens, concerned parties fear that local authorities in Assam, who are deemed to be particularly hostile towards Muslims and people of Bengali descent, may manipulate the verification system in an attempt to exclude many genuine Indian citizens from the updated Register.”

The entire report may be read here.

This is the second time the UN has taken cognizance of the humanitarian crisis in Assam. In May 2018, in a letter to External Affairs Minister Sushma Swaraj, four UN Special Rapporteurs had said,

It is alleged that the Tribunals have been declaring large numbers of Bengali Muslims in Assam as foreigners, resulting in statelessness and risk of detention. Finally, it is alleged that the potential discriminatory effects of the updated NRC should be seen in light of the history of discrimination and violence faced by Muslims of Bengali origin due to their status as ethnic, religious and linguistic minority and their perceived foreignness. Although the Bengali origin Muslims in Assam descend from peasant workers brought from the former Bengal and East Bengal starting in the 19th century under colonial rule, they have long been portrayed as irregular migrants. As a result of this rhetoric, Bengali Muslims have historically been the target of various human rights violations, including forced displacement, arbitrary expulsions and killings.”

In light of this, it is clear that the NRC issue is under the UN scanner and that given the international scrutiny it will not be easy for divisive forces to function with impunity much longer.

——————————————————————-

(The story was first published in CJP and is available at https://cjp.org.in/un-questions-statelessness-and-disenfranchisement-of-minority-groups-in-assam/, this is only a reproduction.)

Advertisements

UN Special Rapporteurs express concerns over discriminatory procedure of NRC updation in Assam

June 22, 2018

Worried About Fate of Bengali Muslims, UN Special Rapporteurs Write to Govt. of India

The Wire Staff

June 21, 7:00 pm

People waiting to check their names in first draft of NRC publish on 31st December 2017

People waiting to check their names in first draft of NRC publish on 31st December 2017 (Photo: thehindiu.com)

New Delhi: Four special rapporteurs of the United Nations Office of the High Commissioner for Human Rights (OHCHCR) have jointly written to Indian external affairs minister Sushma Swaraj expressing “serious concern” over the discrimination of “members of Bengali Muslim minority in Assam” in getting “access to and enjoyment of citizenship status on the basis of their ethnic and religious minority status”.

The letter, written on June 11 by special rapporteur on minority issues Fernand de Varennes, special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance E. Tendayi Achiume, special rapporteur on the promotion and protection of right to freedom of opinion and expression Daid Kaye and special rapporteur on freedom of religion or belief Ahmed Shaheed, from the OHCHR’s Geneva headquarters, has categorically linked their concern to the ongoing process of updating the National Register of Citizens (NRC) 1951 in the state.

The update is being carried out under the supervision of the Supreme Court, to honour the Assam Accord signed between the All Assam Students Union (AASU) and the Central government in 1985 to “detect, delete and deport” all “foreigners” who entered the state, mostly from neighbouring Bangladesh, after March 25, 1971. The NRC authorities are mandated to ready the final draft of the updated citizenship register by June 30.

The letter has also sought a response from the Indian government “within 60 days” on eight different allegations of wrongdoing brought to their notice with regard to the NRC update, stating that it “will be made available in a report to be presented to the Human Rights Council for its consideration”.

When asked about the letter, sources in the MEA told The Wire, “Such letters on different issues are received all the time. Reply is sent based on inputs received from relevant ministries”.

The letter said:

“There is no official policy outlining the implications for those who will be excluded from the final NRC. It is reported that they will be treated as foreigners and that their citizenship rights may be revoked in the absence of a prior trial. They may subsequently be asked to prove their citizenship before so-called Foreigners’ Tribunals. In December 2017, a local government minister in Assam was quoted as stating that ‘the NRC is being done to identify illegal Bangladeshis residing in Assam’ and that ‘all those whose names do not figure in the NRC will have to be deported.’

In this context, the NRC update has generated increased anxiety and concerns among the Bengali Muslim minority in Assam, who have long been discriminated against due to their perceived status as foreigners, despite possessing the necessary documents to prove their citizenship. While it is acknowledged that the updating process is generally committed to retaining Indian citizens on the NRC, concerns have been raised that local authorities in Assam, which are deemed to be particularly hostile towards Muslims and people of Bengali descent, may manipulate the verification system in an attempt to exclude many genuine Indian citizens from the updated NRC.”

The special rapporteurs particularly highlighted the May 2, 2017 judgment of the Gauhati high court which directed the Assam Border Police to open inquiries concerning relatives of those persons declared foreigners by the Tribunals. Calling it an “alleged misinterpretation” of the judgment by state coordinator of the NRC Prateek Hajela, leading him to refer two such cases (on May 2 and May 25, 2018) to the Border Police, they stated that the duty to conduct a prior inquiry before keeping such names out of the draft NRC has not been mentioned in the order.

“Once relevant NRC authorities have been informed about the referral of a case, the concerned family member will automatically be excluded from the NRC. Their status will be recorded as ‘pending’ until their citizenship has been determined by a Foreigners’ Tribunal. It is, therefore, alleged that these orders may lead to the wrongful exclusion of close to two million names from the NRC, without a prior investigation and trial. In addition, it is alleged that the orders contravene a High Court judgment of 3 January 2013 (State of Assam vs. Moslem Mondal and Others), which stipulates that automatic referrals to Foreigners’ Tribunals are not permissible as a fair and proper investigation is required prior to the referral of a case.”

The special rapporteurs have underlined that the “orders may also contravene section 3 (1) (a) of the Citizenship Act 1955, which grants citizenship at birth to anyone born in India on/after 26 January 1950, but prior to 1 July 1987.” Besides seeking clarifications and/or additional information on these allegations from the Indian government, they also sought to know the “steps taken to ensure that the NRC update does not result in statelessness or human rights violations, including arbitrary deprivation of citizenship, mass expulsions, and arbitrary detention” of Bengali Muslims.

Among seeking other information, the letter asked for data from the government on the ethnicity and religion of those individuals who would find themselves excluded from the draft NRC as well as those declared foreigners by the Tribunals, besides an official word on whether they would face detention or deportation.

The UN rapporteurs also sought “the present status” of the Citizenship (Amendment) Bill 2016 and asked why it doesn’t include Bengali Muslims.

“The proposed amendment suggests a broader context of vulnerability of Bengali Muslims to unlawful exclusion from Indian citizenship. While we do not wish to prejudge the accuracy of these allegations, we would like to express serious concern that members of the Bengali Muslim minority in Assam have experienced discrimination in access to and enjoyment of citizenship status on the basis of their ethnic and religious minority status. We are particularly concerned that this discrimination is predicted to escalate as a result of the NRC.”

The majority population in Assam has expressed their opposition to the Bill as it will divide the undocumented immigrants allegedly residing in the state on religious grounds. In the last few months, the streets have witnessed vociferous public protests demanding the withdrawal of the Bill as it violates the Assam Accord. As per the Accord, whoever has crossed over the international border into the state without valid documents after March 24, 1971, would be declared a foreigner without considering their religious affiliations. The state would thereafter make provisions for deportation to their country of origin. The Accord brought to an end a six-year-long anti-foreigner movement in the state, but its core clause of “detection, detention and deportation” has not been implemented yet. As per a tripartite agreement reached by the state and Central governments with AASU in 2005, the Registrar General of India, under the supervision of the apex court, is conducting the ongoing update of the NRC only for Assam.

The letter can also be accessed here.

This story was first published in the wire.in and has been reproduced here verbatim.

 

Supreme Court sets out guidelines to make police accountable for fake encounters

September 23, 2014

From THE CITIZEN

Supreme Court of Inda

Supreme Court of Inda

NEW DELHI: In an environment where fake encounters are increasingly rapidly, as are deaths in police custody, the Supreme Court has sought to restore a level of accountability by issuing a set of directives aimed at ensuring proper investigation and punitive action as and where necessary. In doing so it has sought to take away the power of trial and execution from the forces with the gun and bring it back into the courts and concerned institutions.

The court has directed the police to keep a record—in writing or electronic—of intelligence inputs received about terrorists before going after them, And if the encounter leads to death, the police will now have to file a FIR immediately and ensure a proper, independent enquiry by a valid source that was not involved in the operations.

A bench headed by Chief Justice RM Lodha has also said that the weapons used in the encounter should be surrendered for ballistic tests. Investigation into these encounters will now have to be investigated by the state criminal investigation department or officers from another area of jurisdiction and not by anyone involved in the raid as has often happened in the past.

The court has said that police bravery awards for such encounters should not be rushed into, and that a policeman’s bravery has to be proven before honours can be conferred on him. Several ‘encounter specialists’ as human rights activists describe them have received gallantry awards for the same in the past along with handsome financial rewards.

The court has also made it mandatory for the information of an encounter to be sent to the National Human Rights Commission along with a status report on the investigation undertaken, every six months.

The court also said that police bravery awards for such encounters should not be rushed into, and that a policeman’s bravery has to be proven before honours can be conferred on him. Several ‘encounter specialists’ as human rights activists describe them have received gallantry awards for the same.

The court has intervened following a Public Interest Litigation filed by the People’s Union for Civil Liberties’ (PUCL) which had said that officers should not be promoted or rewarded for encounter killings until investigations were complete, and that independent enquiries under independent agencies should be instituted. The Supreme Court has ruled in favour of the litigation except that it has made it clear that the National Human Rights Commission should not intervene unless it was absolutely necessary.

In ten years from 2002 till 2014 India reported 1788 encounter deaths although activists insist that the figures are fudged as the police and authorities do not admit to encounter killings in the first place, and hush up the matter more often than not. Even so the National Human Rights Commission taking cognisance of the official statistics found that the highest number of encounters had been reported from Uttar Pradesh, 743, followed by Assam, 273, Andhra Pradesh, 101 and Maharashtra 88. Despite the high profile encounter killings in Gujarat with several cases still in courts the statistics from this state are on the low side, registering just about 12 fake encounter deaths since 2002. The Ishrat Jahan encounter case is still facing trial in the courts. Delhi has a higher number, with 55 encounter deaths to its dubious credit with the Batla House encounter seen as a landmark in the capital’s history.

Human rights activists have been agitating constantly against encounter deaths and about the attitude of the police and state governments that look at these as “justified.” There is an unwritten policy justifying these with the tacit support of not just the police system, but also the politicians and the bureaucrats. Political pressure is seen as one of the causes behind fake encounters with state leaders and others having their own list of ‘criminals’ to be so eliminated by the police.

On the record all agree that fake encounters are “reprehensible” but little has been done at the level of the legislature and the executive to check this practice that has grown over the years. In insurgent prone areas like the Maoist belt, the north eastern states and Jammu and Kashmir these are accepted practice, and are seen as “instant justice” under which the army, police, paramilitary and of course the concerned governments have complete impunity.

This despite the fact that the judiciary sees this, as it has endorsed now, as legally impermissible. Chaman Lal and Savita Bhakhry, the two authors of a 2013 NHRC journal, said: “Fake encounters are considered an operational necessity, legally impermissible, but morally justified by most police personnel. Fake encounters are occurring with such sickening frequency that occasional reports of genuine encounters are viewed with suspicion.”

There is no place in the legal system for exceptions to the rule that everyone is honest until and unless proven guilty. Encounters allow the forces with the gun to become the dispensers of justice without a trial.

Read the full text of the order  here or here

Custodial death of Ajijur Rahman and the situation that led to his death

July 19, 2012

BHRPC report on efforts of effecting communal division, riots and custodial death in the aftermath of “conversion and second marriage” of Dr Rumee Nath

An aged person named Mr Ajijur Rahman was picked up from his residence at Kalain under the Katigorah police station in the district of Cachar (Assam) by a raiding police team led by Mr Y T Gyatsu, a probationary Indian Police Service (IPS) officer posted as Additional Superintendent of Police at the Cachar police headquarters at Silchar in the night between 6 and 7 July 2012 and was tortured to death in the lock-up of Kalain police patrol post.

The police team was conducting raids to arrest some persons who were accused or suspects of creating mischief and rioting on and after 4 July in Kalain area. The law and order situation of the area deteriorated due to a call of general strike by the Hindu Jagaran Mancha in protest against alleged police harassment of youths belonging to their community who were suspected of being parts of the mob that assaulted Dr. Rumee Nath and her ‘husband’ on 29 June at Karimganj for her ‘conversion and marriage’ with the Muslim boy. The Mancha was also reportedly protesting against the protests of the supporters of Dr. Nath.

The report:

After the incident the Barak Human Rights Protection Committee (BHRPC) formed a fact finding team comprising of 1. Mr. Neharul Ahmed Mazumder, 2. Mr Sadique Mohammed Laskar, 3. Mr Raju Barbhuiya, 4. Mr Nirmal Kumar Das, 5. Mr Aftabur Rahman Laskar, 6. Ms S Sarmila Singha and 7. Mr Abdul Wakil Choudhury to find out the factors and the situation that led to the death of Ajijur Rahman. The team visited Kalain area on 14 July and met family members and relatives of the victim, victims of rioting and their family and relatives and respectable citizens of the area including president, secretary and members of Kalain Bazaar committee Mr Sukhendu Kar, Mr Karunamoy Dey, Mr Asit Baran Deb and others. The fact finding team also visited the Kalain police patrol post and talked with the officer-in-charge Sub-Inspector of police Mr Anowar Hussain Choudhury and some constables. This report is based on the information collected by the team.

The victim:

The victim Mr Ajijur Rahman was aged about 60 years and a permanent resident of village Boroitoli Part-I, Kalain under Katigorah police station and was respected as a senior local businessman. The place, where his house situates, borders with three villages of Boroitoli, Brahmangram and Lakhipur. He was the head of his family which comprised of his 5 sons Mr Fariz Uddin (aged 42), Mr Sarif Uddin (39), Mr Selim Uddin (30), Mr Nazim Uddin (26), and Mr Mahim Uddin (20), 4 daughters Ms Anowara Begum (32), Ms Monowara Begum (aged 24 and unmarried), Ms Reena Begum  (aged 18 and unmarried), Ms Runa Begum  (aged 15 and unmarried), his wife Ms Saleha Khatun (55) his mother aged about 80 years and the children of his sons. It is a big joint family of people of three generations living together. It appeared that the family belongs to the emergent lower middle class of Bengali Muslims in Barak valley (South Assam).

 

Place:

Kalain is situated at a distance of about 40 kilometres from Silchar towards west and is a growing semi-urban area serving as a local business centre for the entire West Cachar region. The population of Bengali speaking Hinuds and Muslims are almost equal in number. Hindus have been living mostly nearby the market. Beside these two religious communities, some other people belonging to Manipuri, Bishnupria and Hindi speaking communities are also living in the outskirts. According to the local residents, people of Kalian belonging to different communities have been living harmoniously and in peace and love with each other for times immemorial. However, there were small quarrels and even fighting at times between people belonging to different communities but they were of personal nature and the religions of the parties have had nothing to with them.

Incident:

A huge police team led by Mr Y T Gyatsu raided the house of Mr Ajijur Rahman at about 12.30 in the night intervening between 6 and 7 July. They first cordoned off the house from all sides and then knocked at the doors. The inmates of the house were fast asleep. At the sound of heavy knocks Mr Ajijur Rahman got up and opened the door. A big number of police personnel including a lady constable remained outside the house and four/five of them including Mr Gyatsu went into the house. They asked for Mr Nazim Uddin who was not home at that time. In fact, no other male members of the family were present in the house since they were in hiding. The able male members of all families of the area were hiding themselves in apprehension of indiscriminate arrest and harassment by police in the wake of the rioting. As an aged person Mr Rahman did not feel the need to hide himself.

The police team made all female members to go out of the house and they conducted a search for Mr Nazim Uddin in all rooms including kitchen and bathrooms in vain. They demanded of Mr Ajijur Rahman to tell them the whereabouts of his son or they would send him in jail in place of his son. When he pleaded ignorance of whereabouts of his son Mr Gyatsu hurled a torrent of verbal abuse and started assaulting him. He demanded that Mr Rahman would have to take his son to the police patrol post before 6am. Mr Rahman told that he would not be able to do so since he did not know where his son is and latter’s mobile phone was also off. At that Mr Gyatsu started boxing his ears and the back of his head while dragging him. Member of the raiding police team constable Mr Badrul Islam Barbhuiya, Ms Reena Begum, daughter of Mr Rahman and other eye witnesses told the BHRPC team that Mr Gyatsu did not let the old man to wear even a top under garment. The old man cried and pleaded with Mr Gyatsu not to take him to the police station as he was to go to Mecca in Saudi Arabia for Haj pilgrimage. His wife and daughters also wept uncontrolably and urged the police officers to spare the old man at least for the sake of God since he did not know anything about incidents of 4 July. These beseeching of the helpless was not heeded.

Mr. Mahibur Rahman[1], a neighbour and cousin of Mr Ajijur Rahmn, told the BHRPC team that when he heard of the cries of wife and daughters of the latter he went there and saw that the police was taking him with them. He then sneaked to house of other neighbours Mr. Taj Uddin[2] and Mr. Shahid Uddin[3] and awakened them. They were to move silently since they were themselves very afraid of the police and a prohibitory order under section 144 of the Criminal Procedure Code, 1973 was also in force. Three of them stood at the front side of a house[4] at a distance of about 20 metres from the patrol post to witness what was happening to the old man there. According to them, from that place everything was clearly visible since the doors and windows of the patrol post house were wide open and electric lights were on. They stated that they saw Mr Ajijur Rahman was seated on a red plastic chair. They inferred from the gestures of the police personnel and Mr Rahman that they were talking. Then two personnel coming from two sides kept his thighs in tight grip in a way that rendered Mr Rahman unable to move. And then another police personnel dressed like a higher officer and in his facial and physical features resembling to a tribal man came and placing his one grip at the chin and another on the head twisted the head of Mr Ajijur Rahman with tremendous force. It seemed that the body of Mr Rahman became motionless and loose and his head leaned at the side at which his head was left by the officer. This is also corroborated by Mr Taj Uddin and Mr Shahid Uddin.

According to the police personnel posted at the Kalain patrol post with whom the BHRPC team talked, there were two police officers there at the time who more or less look like tribals. One is Mr Y T Gaytsu and another is Mr L Saikia, the Deputy Superintendent of Police. It appears that the person who twisted the head of Mr Ajijur Rahman is either Mr Gyatsu or Mr Saikia.

According to the above mentioned eye witnesses, after the assault of the officer all people in the patrol post got agitated and a hullabaloo ensued. Two personnel lifted Mr Ajijur Rahman as if they were lifting a dead body and put him in a vehicle which then went away. It was at about 2am.

Mr. Mahibur Rahman further stated that a certain person named Mr AJijur Rahman Khan called him up on his cell phone and informed that a person of his name from Boroitoli was brought to the Kalain Community Health Centre and the physician in-charge of the hospital Dr Sumon Bhomik advised to take him to the Silchar Medical College and Hospital as he could not feel his pulse. Circumstances strongly indicate that Mr Ajijur Rahman  was brought dead and he died due to twisting of his head.

After that the family, relatives and neighbours of Mr Ajijur Rahman tried to find out what happened to him during the remainder of the night and in the morning some of them went to the SMCH and came to know about the death of Mr Rahman with help from local member of Assam Legislative Assembly Mr Ataur Rahman Mazarbhuiya. Autopsy of the body was conducted at the SMCH on 7 July and was handed over to the relatives of the deceased. After performing last rites Mr. Ajijur Rahman was laid to rest on the next day.

The local people were concerned that the post mortem report might not reflect the true causes of death and material facts might be suppressed since the autopsy in India is conducted in a very unscientific, legally improper and unreliable way. Usually someone engaged in manual scavenging cuts the body at the direction of a surgeon who stands at a safe distance and looks at the body from there. The surgeon does not touch the body or examine it otherwise. From that distance he makes a guess and writes down the cause of death based on the guess. In cases of custodial deaths the body remains under the custody and absolute control of the police since before the death until the autopsy report is prepared.

Observing such appalling conditions of autopsy procedure the National Human Rights Commission of India issued guidelines to the states as well as the central government calling for their immediate action to address the lack of transparency while dealing with deaths in custody. The Commission recommended video recording of the inquest as well as the post-mortem of the victim. The Commission has even recommended using a standardised ‘post-mortem examination report form’ by the forensic surgeons. These recommendations however have not been implemented in India in their letter and spirit. Sometimes the procedures may be recorded but the report is not prepared as per the recommended guidelines.

Sharing the concerns of the local people the BHRPC instantaneously on 7 July wrote a letter to the District Magistrate, Superintendent of Police and Superintendent of the SMCH enclosing the NHRC guidelines and urging them to conduct the autopsy as per the guidelines.

The DM also ordered an inquiry into the incident of death to be conducted an executive magistrate. People are of the opinion that it is nothing but an attempt to cover up the case and save the guilty officers and personnel. Executive magistrates are not independent judicial authorities. They are servants of the government and exercise quasi-judicial powers. They usually do not record evidence before the other parties and give parties opportunity to cross-examine the witnesses of the other party in violations of universally recognised rules of judicial procedure. There are reasons, therefore, to believe that their inquiry may not be objective and impartial.

The Parliament of India keeping in view of the lacunae in law regarding inquiry into the deaths in police custody incorporated a subsection (1A) in section 176 of the Criminal Procedure Code, 1973 by section 18 (ii) of the Criminal Procedure Code (Amendment) Act, 2005 providing for an inquiry by a judicial magistrate in addition to the inquiry or investigation held by the police. Although the BHRPC reminded the DM of this mandatory provision it was ignored.

The widow of late Ajijur Rahman filed a complaint at the court of Chief Judicial Magistrate, Cachar on 7 July 2012 under section 302, 506 and 34 of the IPC against Mr Y T Gyatsu and other police personnel. The complaint was sent to the Katigorah Police Station for registration and investigation. It was registered and assigned a case number vide Katigorah PS Case No. 291/12. The Officer-in-Charge of the police station entrusted a Sub-Inspector of police with the task of investigation. There are reasons to suspect the objectivity and impartiality of the investigation officer because he is working under the very persons who have been named as accused in the case.

Background:

As mentioned above, the police team that picked up Mr Ajijur Rahman was conducting raids to arrest some persons who were accused or suspects of creating mischief and rioting on and after 4 July in Kalain area. The law and order situation of the area deteriorated due to a call of general strike by the Hindu Jagaran Mancha in protest against alleged police harassment of youths belonging to their community who were suspected of being parts of the mob that assaulted and brutally beaten up Dr. Rumee Nath and her ‘husband’ on 29 June at Karimganj for her ‘conversion and marriage’ with the Muslim boy. The Mancha was also reportedly protesting against the protests of the supporters of Dr. Nath.

After the call of “bandh” (strike) on 4 July was given by the Mancha some groups in different areas of Barak valley issued a counter call to the people not to observe the bandh because, according to them, frequent strikes are harmful for the business and economy. These groups are thought to be the supporters of Dr Nath. In the morning of 4 July activists of the Mancha went to different parts of the valley to enforce the strike. One of such groups came to Kalain bazaar where they faced resistance from others who wanted the market to function normally.

The bazaar committee, a committee of shop keepers having shops at Kalain, intervened and a tripartite meeting was held among the opposers and supporters of bandh and the committee. The committee offered a compromise proposal after talk with both the parties that the shops could remain closed till 12 noon and then the shops could be opened. Though there were indications of acceptance by both the parties but it could not be finalised as some people of both the parties were adamant in their stands. The members of the committee went to their homes giving up hope of any settlement.

According to the information gathered by the BHRPC, after break down of talks when supporters of the bandh were trying to enforce it forcibly the police raised a barricade and kept most of them outside the barricade. However, they were trying to break the barricade unsuccessfully. With times the situation became very tense. At about 11.30am a mob of Muslim youths came with bamboo sticks and attacked anyone belonging to Hindu communities including shop-keepers and members of the bazaar committee. To face the attack many youths of Hindu communities also came out with sticks. A fight between the communities ensued. Stones were pelted from both sides. Some cycles and motor cycles were burnt down. About 18 people were wounded. They were 1. Mr Sunil Mandal, 2. Mr Sushil Deb, 3. Mr Sumon Deb, 4. Mr Pronit Deb, 5. Mr Sukhendu Kar, 6. Mr Jamal Uddin, 7. Mr Deepak Podder, 8. Mr Titu Baishnob, 9. Mr Buddha Deb Roy, 10. Mr Manna Deb, 11. Mr Sumit Shulkabaidhya, 12. Mr Badrul Islam Barbhuiya, 13. Mr Ranjit Deb, 14. Mr Khalil Uddin, 15, Mr Moin Uddin, 16. Mr Kamrul Haque, 17. Mr Debabrata Paul, 18. Mr Monsur Uddin and others. First six persons sustained serious injuries. Three reporters who went there to cover the situation were also caught in the fight between two communities and received injuries.

According to the local people, had the administration handled it efficiently the situation could be brought under control and the fighting and resulting injuries could have been averted. Executive magistrate Ms Khaleda Sultana Ahmed, DSP (probationary) Mr Iftikar Ali and in-charge of Kalain police patrol post Mr Anowar Hussain Choudhury were present. They failed to handle the mob frenzy. People felt they could take measures including lathi charge and tear gas fire. These measures could disperse the mob. Due to the inability of the authorities to take decisions the fighting intensified.

Towards the evening Additional District Magistrate Mr Borenya Das went to Kalain with a force of Central Reserve Police Force (CRPF) and ordered the police to charge the mob with sticks and fire of tear gas. The mob then got dispersed. The district administration then issued a prohibitory order under section 144 of the CrPC. The situation slowly came under control.

The police registered cases against many named and unnamed suspects who were accused of involvement in fighting on 4 July and started conducting raids of the houses of the people living there to arrest the suspects. It was one of such raids during which Mr Ajijur Rahman was picked up by the police and tortured him to death.

Controversy over ‘conversion and marriage’:

Apart from the mob hysteria that drove the mobs of both communities at that moment, this communal clash resulted from efforts of communalisation of ‘conversion and second marriage’ of Dr. Rumee Nath, encouragement and provocation of youths by a minister of Assam government to take law in their hands and beat up anyone who enters into inter-religious marriage.

Dr. Nath is a Member of Legislative Assembly of Assam (MLA) elected from Borkhola constituency in Cachar district holding ticket from the Congress party. She was earlier also elected from the same constituency as a candidate of the Bharatiya Janata Party (BJP) from which she later defected. She has been married with Mr. Rakesh Singh of Lucknow of Uttar Pradesh and from him she has a girl child who is about 2 years old. It was reported that their matrimonial relation has not been going well for some months.

In the month of April she reportedly got ‘converted into Islamic religion’ and ‘married’ one Jakir Hussain (also known as Jakey) of Badarpur under Karimganj district apparently as per Islamic rules. However, it is reported that the ‘conversion and marriage’ took place in the same sitting. Many Muslim clerics maintained that the marriage was invalid for it was solemnised before observing iddat period of three months and therefore her first marriage was subsisting. Validity of her conversion was also under question mark as it was tainted with motives that were not entirely pious. Most intellectuals of the valley also did not take her ‘conversion and second marriage’ pleasantly. According to them, her actions were immature, improper and not befitting of a public figure.

Her first husband filed a case against her and her ‘second husband’ under section 494, 497, 498 and others of the Indian Penal Code, 1860 accusing her of bigamy, (accusing her second husband of) adultery, enticing or taking away or detaining with criminal intent a married woman. She also filed case against her first husband alleging domestic violence.

The BHRPC maintained that right to get converted into any religion is a part of the freedom of conscience and free profession, practice and propagation of religion guaranteed by Article 25 of the constitution of India. Per se inter-religious and inter-caste marriages are also recognised by the Special Marriage Act, 1955 and such marriage should be encouraged as they can promote harmonious communal co-existence and secularism. However, in case of Dr. Nath the things are a little different. She was a married woman with a two years old child. Bigamy or living with another person as man and wife during the subsistence of earlier marriage prima facie amount to offence against the institution of marriage. Abandoning a 2 year old child is cruelty on the child and violation of child rights. These grievances against her could be legitimately vented through legal means and judicial process and which was what her first husband resorted to.

However, some groups including the Hindu Jagaran Mancha exerted themselves to blow it out of all proportion. They conjured up spectre of ‘love jihad’ and started campaign against inter-religious and inter-caste marriages, friendship between girls and boys belonging to different communities and even resorted to vigilantism by raiding parks, restaurants and other public places in search of inter-religious couples and friends and beating them up. Ostensibly this group received encouragement from political leaders who were interested in diving people in religious lines and diverting the attention of the people from the real issues of starvation deaths, corruption, miserable conditions of rural and urban roads and the national highways, human rights violations by police and armed forces etc.

A very influential politician of the ruling congress party in Assam Mr Gautom Roy, Minister for Public Health and Engineering (PHE), at a public function organised to mark 3 years of Assam government issued a call to the public to beat up any boy who marries a girl from a different community and to hand over the girl to her guardians. Provoked and encouraged by this call a mob of more than one hundred youths attacked Dr Nath and her ‘second husband’ at about 10pm on 29 June 2012 at Hotel Nakshatra in Karimganj where she was staying for the night after visiting her constituency. Both of them were brutally assaulted, and according to her, attempts were also made to rape her. After hours a police team rescued them in serious conditions. They were rushed to Guwahati for treatment.

The BHRPC could not confirm any direct links of the minister with the attack on Dr Nath and the mob that attacked her. But it is obvious that his call to beat up such couples definitely encouraged the mob. The comment of the minister is not only against the established constitutional canons of the land and principles of human rights but also a provocation to breach the public order and a call towards further lawlessness and jungle raj. Any person including a minister may disagree with any law and in such cases he should propose repeal or amendment of the law if he is sincere in his opinions. A minister who is part of the party that rules at the central and state governments should have proposed amendment of Article 14, 21 and 25 of the constitution and the Special Marriage Act, 1955 if he sincerely thought that conversion and inter-religious marriages are undesirable. By provoking youths he betrayed his motives.

The attack on Dr Nath is a manifestation of desperate reactions of patriarchy and its interests against the empowerment of women and empowered women. These are attacks on expression of moral agency in women. She was abused and attacked only because she was a woman.

Conclusion:

It is found that Mr Ajijur Rahman was the latest victim of inhumanity and brutality of the police which they sometimes without any rhymes and reasons unleash on the very people for whose protection they are being paid. His son Mr Nazim Uddin might be an accused or suspect and his arrest might also be necessary in the situation. But it is absolutely illegal to take his father into custody to be used as bait for the son. Moreover, the torture and other cruel, inhuman and degrading treatment to which he was subjected and which allegedly caused his death are not only illegal but also inhuman and barbarous.

It is also found that groups of people who have vested interest in communal divisions among the people created controversy around ‘conversion and second marriage’ of Dr Rumee Nath and engaged in a communal campaign. It polarised some people in religious lines and created tensions in Barak valley.

Provocative and ant-constitutional statement of Minister Gautom Roy encouraged the mob of the male dominated society to attack Dr Nath, a woman who represents more than 1 million people in the law-making body of the state and her ‘second husband’.

The alleged police harassment of youths and inefficient investigation of the attack case and efforts of forcible enforcement of strikes led to the fighting between the communities at Kalain; communal mass hysteria of some Muslims youths of Kalain and inefficient handling of the situation by the  authorities present there led to the fighting between the communities resulting in injuries of many innocent people; insensitivity to human rights of the people and reliance on illegal means and torture during investigation by the police resulted in the death of Mr Ajijur Rahman.

Recommendations:

The BHRPC recommends to the authorities including the Central government of India and government of Assam to take following actions:

To the Government of Assam:

  1. To conduct a prompt and objective judicial inquiry into the death of Ajijur Rahman and the circumstances that led to his death;
  1. To cause the investigation of the case of custodial death of Mr Ajijur Rahman to be conducted by a team led by an officer of the rank of Superintendent of Police of the Crime Investigation Department of Assam police;
  1. To pay an ex-gratia of an adequate amount to the next of kin of Mr Ajijur Rahman;
  1. To hand over the investigation of mob attack on Dr Rumee Nath to the Central Bureau of Investigation of Delhi Police as name of a minister of Assam government is involved in the incident;
  1. To amend the Assam Police Act, 2007 to bring it in conformity with the directions of the Supreme Court of India in Prakash Singh and others Vs. Union of India and others case;
  1. To separate investigation wing and maintenance of law and order wing of Assam police completely;
  1. To train the officers and other personnel of Assam police in following human rights laws while tackling riots and dealing with mobs; and
  1. To take any other actions needed for protection of human rights of the people.

To the Central Government of India:

  1. To ensure a prompt and impartial inquiry by a judicial authority into the death of Ajijur Rahman, communal fighting and mob attack on Dr. Rumee Nath;
  1. To ensure that the investigation of the case of custodial death of Mr Ajijur Rahman is conducted by a team led by an officer of rank of Superintendent of Police of the Crime Investigation Department of Assam police;
  1. To ensure  payment of ex-gratia of an adequate amount to the next of kin of Mr Ajijur Rahman;
  1. To ensure the investigation of mob attack on Dr Rumee Nath to the Central Bureau of Investigation of Delhi Police as name of a minister of Assam government is involved in the incident;
  1. To repeal the colonial Police Act of 1861 and enact a police act as per directions of the Supreme Court of India issued in Prakash Singh and others Vs. Union of India and others case;
  1. To enact the Communal Violence Bill after further consultation with the civil society;
  1. To enact the Prevention of Torture Bill after further consultation with civil society;
  1. To enact a law providing for adequate reparation and rehabilitation of the victims of human rights violations by the state agencies and their families after consultation with the civil society; and
  1. To take any other appropriate actions required for protection of human rights of the people.

For any clarification and more information please contact:

Waliullah Ahmed Laskar

Director, Legal Affairs

Barak Human Rights Protection Committee (BHRPC)

Cell: +919401942234

Email: wali.laskar@gmail.com


[1] Mr. Mahibur Rahman, aged about 50, son of Haji Haroos Ali, resident of Lakhipur Part-I, Kalain, Katigorah, Cachar.

[2] Mr. Taj Uddin, aged about 44, son of late Abdul Barik of Boroitoli Part-I

[3] Mr Shahid Uddin,  aged about 25, son of late Abdul Wahab Barbhiuya of Brahmangram.

[4] The house belongs to one Mr Mainul Haque. They did not awake him lest the police know about any movements.

 

 

 

Human Rights in India: Status Report 2012

June 3, 2012

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.

The UPR is a unique process conducted by the United Nations (UN) Human Rights Council (HRC), involving a review of the human rights record of all 192 UN Member States once every four and a half years.

The WGHR submitted a stakeholders’ report to Office of the High Commissioner of Human Rights (OHCHR) in November 2011. The present report is a more detailed and comprehensive version of WGHR’s stakeholders’ report that includes:

Information gathered from five regional and one national consultation held with civil society across India from August to October 2011;

Case studies that illustrate the text of the report;

WGHR’s initial response to the Government of India’s national report to the second UPR;

An up-to-date analysis of the status of implementation of the 18 recommendations made to India during the first UPR.

It is amply evident from the report that much remains to be done to improve the human rights situation inIndia. The scope of the UPR is enormous as it covers all recognised international human rights. If we take almost any of these human rights, the situation inIndiaremains challenging; yet the scope for improvement is immense. If the required positive changes are to take place, however, a radical change in national and regional actions by governments at all levels is necessary. The report highlights some of these required changes.

The opportunity offered byIndia’s second UPR at the HRC should not be underestimated. The clear direction that can emanate from the second UPR’s recommendations largely depend, however, on the approach adopted by the Indian delegation during the UPR in May 2012. We all look forward to a shift away from the defensive posture adopted byIndiain the first UPR to a constructive engagement with the HRC. Such an engagement can only prove fruitful if the deliberations during the UPR debate and the resulting recommendations are placed within the space of the recognition of human rights (through laws, policies, administrative actions and budgetary allocations) and their implementation.

We hope this report will contribute to such a debate at the HRC.Indiamust meet the human rights accountability challenge posed by the contents of its own Constitution and the international human rights instruments it had ratified. To meet this enormous challenge, nothing but a radical shift in economic, security and social policy is needed. It is hoped thatIndia’s second UPR will provide solid recommendations to make such a radical change possible, which is urgently required to reverse the adverse human rights situation faced by a significant part of the people ofIndia.

The Barak Human Rights Protection Committee (BHRPC, though is not a formal member of the WGHR, participated in the preparation of the report. Dr Prasenjit Biswas and Mr Waliullah Ahmed Laskar took part in the North East regional consultation held in Shillong and the former represented the BHRPC in the national consultation in New Delhi. Along with reports on starvation deaths of tea labourers in Assam the BHRPC also provided inputs in other subjects.

The report can be downloaded from here and from the WGHR website.

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

April 26, 2012

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.

Interim Report and Press Statement of CDRO Fact Finding into Mega Dams in North-East

Coordination of Democratic Rights Organisation, comprising of 20 civil and democratic rights organisations from across India decided to undertake a fact finding into the impact of big/mega dam projects coming up in the North Eastern states on the life and livelihood of the people. Reportedly more than 168 MoUs/MoAs have been signed by the Arunachal Pradesh government alone. CDRO believes that such projects, be they so called Run of the River or Storage dams, affect not only people whose land will get submerged upstream but also people living in the downstream area. We also believe that affected people comprise those whose life and livelihood is intricately linked with the river beyond, since water flow will impact agriculture, fisheries, river transportation. Construction of concrete dams in a high seismic zone with sedimentary rock is in itself a mark of utter irresponsibility. Besides, natural floods carry sediments while man-made flood through construction of dam brings sand which destroys cultivable land. Also worth noting is that the seven North Eastern states are plagued by multiple problems born of neglect, discrimination and exploitation of resources accompanied by fear of the people about demographic transformation with the influx from outside threatening their way of life and further militarisation of the region.

The team split into two groups; one headed towards upper Assam and another towards Tipaimukh dam site. The first team visited North Lakhimpur, Dhimaji in Assam and Pasighat in Arunachal Pradesh covering Lower Subansiri, Lower Siang and also downstream area of Lohit and Dibang river projects in Tinsukhia district. The second team visited Tipaimukh project which would affect people living in Manipur, Mizoram and Assam.

Given below are highlights of what people felt would be the consequence of the projects on their life and livelihood:

I. FIRST TEAM REPORT:

1. Lower Subansiri is allegedly a Run of the River project with storage capacity which would submerge 70 sq kms upstream. The 2000 MW project is being constructed for NHPC by Larsen and Toubro and Soma when fully constructed will have a height of 115 metres. While officially only 31 families would be displaced according to Walter Fernandes, no less than 700 families would be affected. About 3436 ha of forest land would also get submerged and wildlife habitat. Lower stream the impact would be even worse since fear of river drying, fluctuation in water flow, likely increase in deposit of sand over presently cultivable land, destruction of aquatic life which destroy livelihood of 39 lakh fisherfolk, not to forget river transportation. The man-made flood created by 405 MW Ranganadi dam on 14th June 2008 was repeatedly referred to by people to remind us of the possible damage that can be caused to life and livelihood by natural or man-made flood. The difference between peak and lean flow, according to people, is such that likelihood of flash flood increases manifold.

The nature of protest currently in form of four month long blockade of vehicular traffic carrying construction or other equipment meant for the dam, is a clear sign of collective resistance.

2. Lower Siang is again allegedly a Run of the River project with storage capacity which would submerge and restrict habitation in upto 106 kms. Apart from this at height upto one km has been declared as no-man’s land and reserved for compensatory forestation for the company. The 2700 MW project was awarded to Jaiprakash Industries. Siang’s Adi community considers the river as sacred and fears that 35 villages would be affected. Thus their community land which is cultivable and rich in flora and fauna would be wiped out. . IN 34 villages ninety percent of people have affirmed through signature their opposition to the dam. They fear that their culture and people face annihilation. It is this that drove them to protest the construction of dam recently. And fear mixed with anger remains strong among people here.

Lower stream people, especially Mishing community, reside along the river bank. They along with others who live in the plains downstream apprehend that their livelihood would be wiped out since river flow would both impact cultivation as well as fishery on which most of the people depend.

3. Lower Dibang is a 3000 MW storage dam of NHPC with a height of 288 metres which submerge 45 kms upstream wiping out 30 villages. This will affect nearly 50% of Idu-Mishmi community and their community land. If the argument of development and employment opportunities do get created by this project then considering the skilled and qualified people among the Idu-Mishmi they stand to lose. We are told that this generates the fear that people from other parts of India would garner the maximum benefit. This will also nullify whatever protection is offered by the Constitution. The agitation since 2006 has ensured that 11 times public hearing has had to be postponed.

The fear in the downstream area is once again that their life and livelihood would be adversely affected. We do wish to point out that the anti-dam movement is still in its infancy in these parts. But the fear is palpable.

4. Demwe Lower Hydro-electric Project has been given to Athena Demwe Power Ltd. and is said to be Run of the River project to generate 1750 MW and will submerge 26 square kms of land to make way for a reservoir. 1416 (One thousand four hundred sixteen) ha of forest would also be lost in the process. Its height is 163.12 metres. Public hearing was confined to an area of 5 kms below the dam site. One of the fallout of this project would be the damage caused to Dibru Saikhowa bio-diversity area as well as other bio-sphere reserve in Assam.

While people speak in downstream area about the consequence of the Lohit project on their land and livelihood it is yet to take an organised expression.

II. SECOND TEAM REPORT

1. The proposed Tipaimukh project conceived in 1970s and is being currently implemented by NHPC, Satluj Jal Vidyut Nigam (SJVN) and Govt. of Manipur, despite serious opinions of the people to the contrary. It will submerge around 25,822.22 hectares of land ONLY in Manipur apart from Mizoram. The project is going to destroy at least 7.8 mn full grown trees and bamboo bushes. It will be 162 mtrs in height and is supposed to produce 1500 MW of electricity. 12 villages with a population of 557 families /2027 ST people (of the Hmar and Zeliangrong tribes) will be displaced. Most of these figures were disputed by people and activists of organizations working in the area because effects of the dam on the people, land and environment of the down-stream areas have not been evaluated by the government agencies.

There has been a simmering of resistance to the proposed project. Some people perceive it as not only a dam but also a threat to their material existence and life, culture and history. There has been recently some rallies, as the cycle rally by the Village Women Coordination Committee on the 19 Feb Sangaithal area, (Imphal), Jointly organized demonstrations(as the 14th mar 2012 event at Nungba Bazar, Tamenglong )) etc. And the resentment is gathering momentum.

The statutory Public Hearings, for the project, has been fraught with problems and there has been a great deal of dissatisfaction over the way these have been manipulated. The public hearings started in the year 2004 (Darlawn, Mizoram) and continued sporadically till the last one at Tipaimukh on the 31st march 2008. People at Tipaimiukh, have told us categorically they were not heard and what was the decision of the Public Hearing, they said, had already been taken by the officials who had come. There has been a protest against Public Hearing also (Kaimai, Tamenglong district March 2008).

What we have listed above is only a small sample of the impact of the dam on life and livelihood of the people both upstream and downstream. The fact of the matter is that nearly every river will have several dams each; Lohit basin will have 10 dams, Subansiri basin 12, Dibang basin 12, Siang basin 39, Kaming basin 43….These figures can go up were all data made public by the Arunachal government. To build so many dams in an area which is earthquake prone carries incalculable risk for all living beings.

Each MoA is accompanied by monetary advance by project developer to the Arunachal Pradesh government at the time of signing the deal. This implies that the project gets sanctioned even before any of the mandatory reports and clearances is given.

This makes the entire scheme of building projects which will destroy the Brahmaputra basin a colonial project meant to benefit rest of India at the expense of North East. It is also of interest to note that maximum numbers of the projects have been awarded to private companies. Most of the projects lack Impact Assessment Studies. Indeed some which claim to have got this study done are confined to between 5 to 10 kms. Siang river project indeed claims that no agricultural land would be submerged whereas nearly every household in 35 villages would lose their cultivable land! The misinformation by the authorities is accompanied by deliberate attempt to hide the truth from the people by manipulating studies.

We demand:

Suspend construction activities until the cumulative impact study of the entire north east, which involves engagement with the people who will get affected by construction of these dams.

The fact finding was conducted by following organisations:

1. Asansol Civil Rights Association (ACRA), West Bengal

2. Coordination for Human Rights (COHR), Manipur

3. Manab Adhikar Sangram Samiti (MASS)

4. Naga Peoples Movement for Human Rights (NPMHR)

5. Organisation for Protection of Democratic Rights (OPDR), Andhra Pradesh

6. Peoples Union For Democratic Rights (PUDR), Delhi

Source: http://www.countercurrents.org/crdo250412.htm accessed on 25 April, 2012.

India: Moving Towards the New Police State

April 23, 2012

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.

India: Moving Towards the New Police State

By – Suhas Chakma, Director, Asian Centre for Human Rights

The Government of India’s attempt to empower its security agencies with the power of arrest must not be countenanced as the same is being done by infringing the sacrosanct principles of federalism of Indian Constitution and undermining the supremacy of the judiciary. A number of bills currently being discussed in the parliament reflect the tendency to make India the new police state.

The Finance Bill of 2012-13 not only seeks to retrospectively amend the Income Tax Act with effect from April 1962 to nullify the Supreme Court judgement in the Vodafone tax evasion case but also proposes to amend Section 104 of the Customs Act, 1962 and Section 13 of the Central Excise Act of 1944 to make all offences that attract more than three years of imprisonment cognizable and non-bailable. The Supreme Court in its judgement on 30 September 2011 in the case of Om Prakash Vs Union of India ruled that all offences under the Excise Act and the Customs Act should be made non-cognizable and bailable. Obviously, Finance Minister Pranab Mukherjee has been ill-advised by the Central Board of Excise and Customs which lobbied for the amendments to circumvent the Supreme Court judgement on the ground that even those smuggling arms, ammunitions and fake currencies have been getting bail. This is despite that there are stringent provisions under the India Penal Code, Indian Arms Act, the Unlawful Activities Prevention Act and host of other legislations to sternly deal with smuggling of arms, ammunitions, fake currency etc.

The Rajya Sabha, upper house of Indian parliament, is also currently considering the Border Security Force (BSF) Amendment Act, 2011 under which Sections 4 and 139 of the BSF Act, 1968 are being amended to extend the area of operation of the BSF to include “such parts of the territory of India as are notified by the Central government”.  The BSF, according to the Government, are deployed “(a) to counter insurgency operations and anti-naxal operations; (b) for internal security duties, (including duties during elections, communal riots, maintenance of law and order)”. Once the Amendments are passed, the BSF will have the power to arrest under Sections 41(1), 46, 47, 48, 49, 51(1), 52, 53, 74, 100, 102, 129, 149, 150, 151 and 152 of the Criminal Procedure Code. The sacrosanct principle of Indian federalism wherein law and order is a State subject will be withered.

At present, the Border Security Force personnel are empowered to arrest, search and seizure within the prescribed border belt which is 80 Kms in the State of Gujarat, 50 Kms in the State of Rajasthan and 15 Kms in the States of West Bengal, Assam and Punjab.  No such limit has been prescribed with respect to Jammu and Kashmir and five North Eastern States of Meghalaya, Nagaland, Mizoram, Tripura and Manipur.

The Indo-Tibetan Border Police deployed along Indo-China border and the Sashastra Seema Bal deployed along Indo-Nepal and Indo-Bhutan borders have already been empowered with the power to “search, seizure and arrest” in border areas under the Customs Act, the Passport  Act, the Narcotic Drugs and Psychotropic Substances Act and the Criminal Procedure Code.

The Armed Forces Special Powers Act (AFSPA), 1958, which is imposed in Jammu and Kashmir and North East India already empowers the army to “arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest”.

While the Central government has virtually empowered all its security forces to arrest, there is no protection for ensuring the rights of those detained by the army and the armed forces. The Guidelines issued by the Supreme Court in the case of D K Basu Vs State of West Bengal do not apply to the armed forces and the army. The army and armed forces are not required to maintain basic records of the persons arrested or detained. Further, there is no external oversight over these security forces.

The Supreme Court has also failed to address the need for protection of those who are arrested by the army or the para-military forces. In its judgement of 27 November, 1997 while upholding the constitutional validity of the AFSPA in the case of Naga Peoples Movement for Human Rights Vs Union of India, the Supreme Court held that “A person arrested and taken into custody in exercise of the powers under Section 4(c) of the Central Act should be handed over to the officer in charge of the nearest police station with least possible delay so that he can be produced before nearest Magistrate within 24 hours of such arrest excluding the time taken for journey from the place of arrest to the court of magistrate”.  However, in reality, those detained by the army and the armed forces are seldom handed over to the nearest police station with the least possible delay. The detainees are mostly handed over only after interrogation. In conflict situations, once the detainees have no further intelligence value after interrogation; they are killed in fake encounters, often for the purposes of getting promotion.

The powers to arrest without ensuring the rights of those detained and/or arrested by the security forces under the control of the Government of India constitute a clear violation of India’s obligations under the International Covenant on Civil and Political Rights ratified by India. By equating customs and excise offences like duty evasion with terror offences with respect to grant of bail under the Finance Bill of 2012-13, India is setting a dangerous precedent on deprivation of personal liberty. If the Government of India continues to circumvent the Supreme Court judgement on personal liberty in such a manner and further empowers all its security forces to arrest, India will soon become the de facto police state ruled by the Centre.  [Ends]

The commentary can be accessed in the ACHR website at http://www.achrweb.org/Review/2012/238-12.html

‘Assam police yet to achieve its legitimacy and lawfulness’, reports police body

April 22, 2012

The Sentinel published a report on 22 April 2012 on the findings and recommendations of the 2010 annual report of the Assam State Police Accountability Commission. The Bengali version of the report as published in the 23 April 2012 issue of the Dainik Prantojyoti can be seen here.

Will policing in Assam ever have a ‘‘humane face’’ in the real sense of the terms? When will the police really begin to behave as a service in a democracy, and not as a brutal, colonial-type force as it acts in many cases? When will ordinary citizens really feel they are being served by the police? These are inconvenient questions, but the police in a democracy must face them and evolve as a people-friendly force.

The issue of policing in Assam has become a much-talked-about subject these days. Chief Minister Tarun Gogoi had, on April 16, at the Chief Ministers’ Conference on Internal Security in New Delhi, laid stress on ‘‘policing with a human face’’ in the State, which has seen militancy-related violence ebbing in recent times. The State Police Accountability Commission, in its annual report for 2010, has also given thrust on ‘‘democratic policing’’.

The annual report of the Accountability Commission prepared by Justice (retd) DN Chowdhury, who is also the chairman of the Commission,  states that ‘‘democratic policing is used to describe the characteristics of policing in a democratic State where police serve the people of the country, not a regime’’.

 The report has revealed that the State’s police force is ‘‘yet to change its attitude towards democratic policing’’ and ‘‘if the police is to achieve its legitimacy and lawfulness, it must seriously endeavour to become accountable to law’’.

Regarding the lodging of First Information Report (FIR) at police station, the report states that FIR is not registered at the first instance concerning issues relating to breach of trust, misappropriation of properties, and other issues. “Sometimes even if the FIR is registered, though belatedly, investigation does not take its due course with end result that the registration of the case becomes a mere formality to escape from the charge of serious misconduct,” adds the report.

On the issue of ‘‘general diary’’ maintained by the police, the report points finger at the Assam Police Act 2007 that has not been amended in order to make the general diary a legal instrument with its transparency at the level of thana/outpost activities, which is overdue. “The scope of enhancing police accountability is very wide in the general diary to be maintained having the force compatible with that of the RTI Act,” states the report.

“The general diary in respect of information of non-cog nature under the provision of CrPC 155 is one of the important indices of police performance at Thana/Outpost level. The Commission has observed that many of the complaints received by the Commission relate to non-registration of cases and refusal in the guise of non-cog to police. Hardly the police action is supported by the initial records as may be required under the provision of CrPC 155 to find mention in the general diary with advice to the complainant to approach the nearest judicial magistrate for ordering investigation of the non-cog cases by police,” states the report.

Wrath of police: Photo courtesy merinews.com

Wrath of police: Photo courtesy merinews.com

The report has also emphasized computerization as a strongest tool for transparency and accountability of the police to the law. “It is needless to emphasize that the right of the citizens will be better addressed by receiving FIR in the computer through networking having access to the general public,” adds the report.

Regarding supervision of cases registered against cops, the report states that such cases are invariably to be supervised and the cases should be dealt with newer provision in the ‘‘rule book’’ to be amended on a greater priority putting them even as special report cases. “The government should take suitable action in this regard and direct the Director General ofPolice,Assamto initiate proposal to the government accordingly,” says the report.

“In our earlier reports we also mentioned that the directives of the Commission for indicating the erring police personnel accountable were not taken in right spirit. Instead instances were found for out-manoeuvring our guidelines and directives. Setting up of the District Accountability Authority and the appropriate steps for creating awareness among the public are some of the issues which need to be addressed for effective functioning of the Accountability Commission and for greater benefit of the people,” says Justice DN Chowdhury in his report.


Source: http://www.sentinelassam.com/mainnews/story.php?sec=1&subsec=0&id=114551&dtP=2012-04-22&ppr=1#114551 accessed on 22 April 2012.


UN envoy asks India to repeal AFSPA and other draconian laws

March 30, 2012

Press Statement – Country Mission to India Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions 19 – 30 March 2012

 

At the invitation of the Government of India, I conducted an official visit to this country from 19 to 30 March 2012. I travelled toNew Delhi, as well as to five States, namely: Gujarat; Kerala;Jammu and Kashmir, where I had meetings in the cities ofJammuandSrinagar;Assam; andWest Bengal.

I am grateful to the Government of India for extending an invitation to my mandate. I am further particularly thankful to the United Nations Resident Coordinator, Mr. Patrice Coeur-Bizot, and his team, for having facilitated the preparation and conduct of my mission.

During this country visit, I had the opportunity to meet with Secretaries from the Ministry of External Affairs, the Ministry of Home Affairs, and the Ministry of Law and Justice, officials from the Ministry of Defence and other Ministries at Union level. At State level, I met the Lieutenant Governor of Delhi, State Chief Secretaries and other Secretaries; Commissioners, Directors General and other relevant officers of the Police; and other senior officials. I also visited the Supreme Court, the National Human Rights Commission and the Assam Human Rights Commission. In addition, I held meetings with the United Nations agencies, as well as a wide range of domestic and international non-governmental organisations, lawyers, witnesses, and victims and their families.

My mission focussed in particular on the right to life in the context of the use of force by the police and the armed forces, and on the possible impact on the right to life of cultural practices.

My provisional conclusions are as follows:

A) General comments

India, often described as the world’s largest democracy, has a Constitution that guarantees a wide range of human rights, and is a living document, supported by broad public endorsement and enforced by a strong Supreme Court, whose human rights jurisprudence is respected worldwide. The right to life (article 21 of the Constitution) in particular has been given an extensive interpretation by the courts.

There is a robust press, and a vibrant and engaged human rights civil society.Indiahas ratified a number of international human rights instruments, including the International Covenant on Civil and Political Rights.

At the same timeIndiafaces many challenges to the realisation of human rights, including movements aimed at separation or greater local autonomy, Maoist or Naxalite, insurgency, organised crime, and communal organisations opposed to secularism, plurality and equality.Indiaaccommodates a huge diversity in terms of religion, languages and culture, largely in a remarkably peaceful way.  The state structure is federal in nature.

The challenge to protect, promote and respect the right to life is undeniably a real one. It is of concern however that despite constitutional guarantees and a robust human rights jurisprudence, extrajudicial killings is a matter of serious concern inIndia. However, it is important to emphasise the solution to these issues largely lies within the system itself.

While data available on extrajudicial executions inIndiais not easy to obtain, in some parts, particularly in conflict areas where political dialogue has been initiated by the government, or where there has been a concerted shift to move away from such occurrences, the last couple of years appear to have seen a drop in respect of unlawful killings. This momentum – and the general commitment to human rights in the country – should now be captured to obliterate the unacceptable levels of deadly violence that remain, and assume higher moral ground.

While I will make some concrete proposals about changes to be affected, I will also propose a process to be followed to address this issue.

Indiahas not hosted many Human Rights Council special procedures. In 2011 it extended an open invitation to special procedures, and to its credit it admitted, for the first visit under this open invitation, the mandate on extrajudicial, summary and arbitrary executions, a mandate covering an area in which it faces well-documented challenges. This reflects a commendable willingness to engage with the issue of unlawful killings in a constructive manner – giving further credence to the view that there may at the moment be a window of opportunity to take significant and decisive steps forward on this issue.

B) Concerns

I have the following concerns about unlawful killings, both in terms of prevention and accountability:

  1. Use of force by State actors

a) Police

There are complaints of use of excessive force by the police against unarmed demonstrators and protestors, with scant adherence to the principles of proportionality and necessity.

Disproportionate use of force during demonstrations has resulted in over 100 deaths, in 2010 inJammu and Kashmir, while elsewhere, such as inNew Delhi, many demonstrations occur without bloodshed. I have been told by the police of a few states that they have recently started using less lethal weapons and other more modern methods of crowd control.

Salutary guidelines laid down by the Supreme Court in the D.K.Basu judgment on arrest, detention and interrogation, many of which have been incorporated through amendments in the Code of Criminal Procedure, are not sufficiently complied with.

Significantly, problems concerning excessive and arbitrary use of force by the police are further aggravated by statutory immunities that restrict accountability.  Section 197 of the Criminal Procedure Code requires prior sanction from the concerned government before cognizance can be taken of any offence by a public servant for criminal prosecution.

A practice of what is called ‘fake encounters’ has developed in parts of the country. Where this occurs, suspected criminals or those labelled as terrorists or insurgents, and in some cases people on whose head there is a prize, are shot dead by the police, and a scene of a shootout is staged. Those killed are then portrayed as the aggressors who had first opened fire and the police escape legal sanction. According to the National Human Rights Commission (NHRC) 2 965 cases of ‘encounters’ have been reported between 1993 and 2010, though there is possibly under-reporting.

While the use of ‘encounters’ to eliminate criminals has decreased since the 1990s, it is nevertheless being deployed to target others.

A seminal case from Andhra Pradesh is currently pending before the Supreme Court wherein the High court had held that in situations where deaths occur at the hands of police in cases of alleged returning fire, a first information report (FIR) must be registered, the case investigated and the claim of self-defence by the police proven in a trial before the court.

In a positive development, the Supreme Court and the NHRC have issued guidelines on the Armed Forces (Special Powers) Act and on encounters.

b) Custodial deaths

There have been a large number of cases recorded on deaths that have occurred in police as well as judicial custody, often in the context of torture.  I have been assured by Government representatives that the process of passing the legislation on torture as proposed by the Select Committee of the Upper House is well under way, which will allow the ratification of the Convention Against Torture. Needless to say this proposed legislation must be compliant with CAT and must include the mandatory provisions of training of police, prison cadre and other forces as well as orientation of the judiciary.

c) Armed Forces

The Armed Forces are deployed in so-called ‘disturbed areas’ in the North East and inJammu and Kashmir.

The Armed Forces (Special Powers) Act (AFSPA) in effect allows the state to override rights in the ‘disturbed areas’ in a much more intrusive way than would be the case under a state of emergency, since the right to life is in effect suspended, and this is done without the safeguards applicable to states of emergency. ^

AFSPA – continuously in force since 1958 (different states have their own versions as well) in the North East and since 1990 inJammu and Kashmir– has become a symbol of excessive state power. I have heard extensive evidence of action taken under this law that resulted in innocent lives being lost, inJammu and Kashmirand inAssam, where witnesses from neighbouring states also assembled. This law was described to me as ‘hated’ and a member of a state human rights commission called it ‘draconian’.

A law such as AFSPA has no role to play in a democracy and should be scrapped. The repeal of this law will not only bring domestic law more in line with international standards, but also send out a powerful message that instead of a military approach the government is committed to respect for the right to life of all people of the country.

The government-appointed Jeevan Reddy Committee and the Administrative Reform Commission have both called for its repeal; as have political leaders of states where the Act applies. The NHRC told me during our meeting that they are in favour of its repeal and that they have commented in their submission to the 2012 UPR that AFSPA often leads to the violation of human rights. It is therefore difficult to understand how the Supreme Court, which has been so progressive in other areas, also concerning the right to life, could have ruled in 1997 that AFSPA did not violate the Constitution – although they tried, seemingly with little success, to mitigate its impact by issuing guidelines on how it is to be implemented.

AFSPA clearly violates International Law.  A number of UN treaty bodies have pronounced it to be in violation of International Law, namely HRC (1997), CEDAW (2007), CERD (2007) and CESCR (2008). My predecessor has also called for its repeal.

The widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict with a concomitant permissive approach in respect of the use of lethal force. This is also difficult to reconcile in the long run withIndia’s insistence that it is not engaged in armed conflict.

Accountability is circumvented by invoking AFSPA’s requirement of obtaining prior sanction from the Central government before any civil prosecutions can be initiated against armed forces personnel. The information received through Right to Information applications, shows that this immunity provision effectively blocks any prosecution of members of the armed forces. The Centre has for example never granted sanction for civil prosecution of a member of the armed forces inJammu and Kashmir.

d) Death penalty

Indian law continues to provide for the death penalty, and in around 100 cases per year this sentence is imposed. However, once imposed, there seems to be little appetite to execute. The last execution was in 2004, although another execution has just been stayed at the last minute during the writing of this report.

It is a matter of concern that the death penalty may be imposed for a (seemingly growing) number of crimes that cannot be regarded as ‘the most serious crimes’ referred to in article 6 of the ICCPR  as internationally understood, namely crimes involving intentional killing. For example, the death penalty may be imposed for kidnapping for ransom under Sec. 364A IPC and has also been proposed in the Prevention of Torture Bill and for drug-related offences. I intend to follow up on the concerns expressed that the categories of capital crimes are being expanded.

The phrase ‘rarest of the rare cases’ (taken from Bachan Singh v State of Punjab) is often used to describe the Indian approach to the death penalty. However, this may create the wrong impression, since the list of crimes for which this sentence may be imposed is still much wider than the one provided for under international law. Even if the death penalty is not implemented, those who had been sentenced to death remain on death row for extraordinarily long periods, while, as one interlocutor put it, ‘they remain hanging there’.

My attention was drawn to the case of Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC 175, where the Supreme Court upheld the death sentence and held that circumstances pertaining to the criminal need not be considered, in spite of earlier authority to the contrary. Subsequently, in seven cases, the Supreme Court invoked the precedent of Ravji Rao’s case to foreclose inquiry into the circumstances pertaining to the prisoner. A total of 14 prisoners were sentenced to death by the Supreme Court on the basis of flawed legal reasoning. Out of these 14 prisoners, two – including Ravji – have been executed.

2) Use of force by non-state actors

a) Terrorists, criminals and others

Deadly violence has been used by Maoists, insurgents, and terrorists. The callous nature in which lives, often of innocent civilians, are taken by these non-state actors needs to be condemned strongly. The state has a right to defend itself against such aggression, provided it abides by the international standards in this regard. The state however cannot adopt unlawful or unconstitutional means or create a vigilante force to counter such violence.

b) Communal violence

I have heard evidence regarding a number of instances where inter-community violence has occurred, resulting in large-scale loss of life. In particular I have met with a large number of people who lost relatives during theGujaratkillings of Muslims in 2002 and the Kandhamal killings of Christians in 2007/8, during which between 1200 – 2500 people and between 50 and 100 people, respectively, were reportedly killed. It is a matter of regret that theGujaratauthorities at the last minute cancelled the meetings we had scheduled during the mission.

In these cases grave allegations of direct state involvement in the killings has been made; moreover in all cases the state has the responsibility to protect citizens against such violence.

The phenomenon of mass and targeted communal violence clearly poses a significant threat to the right to life, also because it sets into motion a cycle of violence that stretches over the years. One of the problems here is that the role of the police and other agencies of the state in these situations could involve bias against minorities. I will further examine this issue.

A number of people have proposed the introduction of the doctrine of some form of ‘command responsibility’ and ‘superior responsibility’, in domestic law, to hold culpable persons in positions of political, civil and administrative power and authority, complicit in the communal violence. I will also examine this matter further.

c)  Traditional practices affecting women

‘Honour’ killings occur where a woman is killed by her family or community because she has exercised her right to choose a partner, particularly when the partner belongs to a different community, caste or religion. This crime is reportedly on the ascendance.  It is currently dealt with as murder under the Indian Penal Code.  There have been suggestions that this be dealt with under a separate piece of legislation so as to highlight the unique nature of such killings.

Dowry deaths occur where a husband or his relatives are dissatisfied by the amount of dowry brought by the wife, and cause her death.  Special legal provisions have been enacted to punish this crime in the Indian Evidence Act. The unnatural death of a wife within seven years of marriage, under suspicious circumstances, including burning or other bodily injuries, and where she is known to have been harassed and treated cruelly  by her husband or his relatives on account of dowry,  creates a presumption that a dowry death has been committed by the husband or his relatives.

The branding of elderly and single women as witches, while largely associated with tribal areas is no longer confined to these regions. Property reasons often underlie these killings.

This is a difficult area for any state to address. While accountability and punishment is important in the context of the above gender-based killings, it is not clear that increasing the punishment, however severe, will lead to prevention. Ensuring certainty of conviction and some form of consequence to establish the norm seems to be more important. This is often difficult for a host of reasons, including the fact that there is general social sanction for the crime, and the police often do not address these killings as crimes. The values at stake are often viewed as more important than life itself. A change in the values themselves is therefore required, a task for which an institution such as the NHRC should be eminently suited.

3) Systemic challenges

a) Justice delayed is justice denied

The complaint is widely raised that the wheels of justice, when they turn, often do so too slowly. Legal proceedings drift for years, while the alleged perpetrators are out on bail and back in the community. The Nanavati Commission of Inquiry inGujarathas now taken 10 years without any concrete results. This is exacerbated by the symbolic importance of the events that are being investigated, and inevitably the conclusion will be drawn that this is not a matter of priority. Similarly, the Supreme Court in 2006 issued a directive for the establishment of Police Complaints Authorities, but in many cases this has not been done.

b) Perpetrators receive awards

Many of the people I interviewed whose family members had been killed, pointed out that the alleged perpetrators, belonging to the police or the armed forces, have been awarded out of turn promotions, or have in other ways been rewarded.

c) Compensation instead of prosecution

While in some cases of custodial death and death due to excessive use of force compensation is paid by the state, criminal investigation and prosecution against the perpetrators is rarely initiated. Consequently few if any are punished for violating the right to life. This is also a manifestation of a military as opposed to a rights based approach. It blunts the deterrent effect of the law and encourages impunity.

d) Burden on the victim

The burden of initiating civil, criminal or writ proceedings in cases of custodial deaths or ‘encounter’ killings, for compensation or securing accountability and punishment, is placed on the victim’s family. Their marginalised and vulnerable status cripples their ability to secure accountability for the violation of the right to life.

e) Form over substance  

Standards such as the Supreme Court and NHRC guidelines mentioned above are often not followed in practice. On most occasions, where the alleged accused are men in uniform, belonging to the police or the armed forces, registration of First Information Reports (FIR) is refused, further deterring access to justice. In case of ‘encounter’ killings, the police lodge the FIR under Sec. 301 IPC, for attempt to murder, naming the deceased as the accused and close the case. Families are also unable to access and secure autopsy reports. Laws and policies are mostly in place, but they are not implemented.

f) Statutory immunities and good faith clause

The statutory provisions of requirement of prior sanction, for a Court to take cognizance of offences committed by public servants, including the police and armed forces, while discharging official duty, coupled with the presumption of good faith for acts done, effectively renders them immune from criminal prosecution.

g) Marginalised groups

Groups such as the dalits and the adivasis are particularly vulnerable, also in respect of the right to life. The increased targeting of ‘right to information’ activists and human rights defenders by land, forest and mining interest groups has also been reported to me.

h) Witness and victim protection

The lack of a systematic witness and victim protection system places them at risk, and leads to impunity.

4. The role of the human rights institutions

The National Human Rights Commission has a proud record and has a critical role to play in the protection of the right to life, especially with reference to ensuring strict compliance with its Guidelines on Encounter Killings.

The NHRC presently seems, from my interaction with them, to be taking a largely legalistic and deferential approach. During our discussions the approach on a number of points was that there are laws in place to deal with matters, and nothing more is required.

The state human rights institutions inspire little confidence. The Manipur Human Rights Commission was for all practical purposes closed after it challenged abuse of power by the police. A member of another state commission told me the commission was ‘subordinate’ to the government – there was not even pretence of independence. In West-Bengal, NGOs showed me how the number of cases they refer to the Commission has dropped to zero for 2012, because it serves no purpose.

The fact that lodging a complaint with a state commission blocks access to the NHRC raises the question whether their presence helps or hinders complainants.

C) Conclusions

There is reason for serious concern about extrajudicial executions. The National Human Rights Commission has on occasion said ‘extrajudicial executions have become virtually a part of state policy’. The position may have improved in some respects, but has not been resolved, and the legacy of the past is bound to continue into the future.

To a large extent the required structures to decrease extrajudicial executions are already in place. The steps to be taken have also by and large been identified within the system. What is required is a concerted and systematic effort by the state, civil society and all others concerned to eradicate its occurrence. In this process some of the best practices that are already followed in the country should be used as models for reform elsewhere. I have been impressed, for example, by the measures taken inKeralaStateto make the police force more responsive to the needs of the public.

Impunity for extrajudicial executions is the central problem. This gives perpetrators a free reign, and leaves victims in a situation where they either are left helpless, or have to retaliate. The obstacles to accountability that are in place – in particular the need for prior sanction of prosecutions – should be removed.

Women and minorities – religious minorities, as well as dalits and adivasis – as well as human rights defenders, including right to information activists, are especially at risk, and their protection deserves special measures.

Almost everyone interviewed said that the courts, and the Supreme Court in particular, play a central role in the fight against unlawful killings. The same applies to the role of the media. I was also struck by the level of expertise and responsibility in civil society.

It is evident that the killings of people take place in the context of other abuses, such as torture and enforced disappearances. Preventing these other abuses can under some circumstances prevent the taking of life.

It is clear that in general the underlying causes of some of the violence need to be addressed, including the levels of development of those who are currently using force to oppose state policies. Andhra Pradesh was mentioned to me as an example in this regard.

There is a strong need for victims to speak about their experiences. A large number of the almost 200 victims who made presentations to me emphasised the need to know the truth, and to ‘clear the names’ of their loved ones who had been killed in ‘fake encounters’. However, a credible national process will have far greater legitimacy in this regard than an international one. Some form of – internal – transformative justice is called for. InJammu and Kashmirthe Chief Minister called for a truth and reconciliation commission. It must be underscored that justice for the victims, accountability and punishment of the perpetrators, that is a real end to impunity for extrajudicial executions, enforced disappearances and torture, are essential elements of any such process.

A public commitment to the eradication of the phenomenon of unlawful killings is needed. In this context it could be valuable to highlight to the public and to those in the structures of the State the historical and global role the country has played in promoting non-violence worldwide, including non-violent demonstrations, and the fact that extrajudicial executions is its opposite. A Commission of Inquiry, drawing on some of the outstanding jurists and other figures that the country has produced, can play this role.

There should be a special focus on the areas of the country where specific forms of unlawful killings take place. In some instances some form of transitional justice may be required, to ensure justice to the victims, break the cycle of violence, and to symbolize a new beginning.

Specific and targeted attention should be given to the following issues: challenging the general culture of impunity; addressing the practice of ‘fake encounters’, to ensure that it is rooted out; and ensuring that swift and decisive action, with concrete outcomes, is taken when there are mass targeted killings. The Commission has to be required to complete its work within a reasonably short period of time, also to demonstrate that a new approach is being followed. In this respect it will be useful to look at possible lessons to be learned from the recent appointment of a judge to investigate extrajudicial executions inGujarat, which at this stage appears to be a positive development.

D) Provisional recommendations

1. A credible Commission of Inquiry that inspires the confidence of the people, into extrajudicial executions inIndiashould be appointed by the Government which also serves a transitional justice role. The Commission should investigate allegations concerning past violations, propose where relevant measures to deal with those, and work out a plan of action for the future to eradicate practices of extrajudicial executions. The Commission must submit recommendations on legal reform, and the reform of state structures, security apparatus and processes that encourage impunity.

Without waiting for the Commission, the following steps should be taken as a matter of priority:

2. Ratification of the following international instruments should take place without further delay: Convention Against Torture; OP-CAT; and the Convention on Enforced Disappearances. Ratification of the following instruments should be considered: The two Optional Protocols to the ICCPR; Optional Protocol to CEDAW; Rome Statute of the International Criminal Court; and the two Optional Protocols to the Geneva Conventions.

3. Repeal the Armed Forces (Special Powers) Act, 1958 and theJammuandKashmirArmed Forces Special Powers Act, 1990. To tie this to the announcement of the Commission mentioned above will send a powerful signal about the State’s commitment to a new dispensation.

4. Repeal the following laws or bring them otherwise into conformity with the applicable international standards, including the Code of Conduct for Law Enforcement Officials, the Basic Principles on the Use of Force and the Basic Principles on Extrajudicial Executions: Jammu and Kashmir Public Safety Act; Jammu and Kashmir Disturbed Areas Act, 2005; Section 197 of the Code of Criminal Procedure Act; provisions of Unlawful Activities Prevention Act, 1967; and the Chhattisgarh Special Public Security Act 2005;

5. Enact the Prevention of Torture Bill, along the lines of the amendments proposed by the Select Committee of the Upper House of Parliament (Rajya Sabha) ensuring its compliance with CAT.

6. There should be regular review and monitoring of the status of implementation of the directives of the Supreme Court and the NHRC guidelines on arrest, custodial violence, encounter killings and custodial death. In particular, the establishment of the independent Police Complaints Authorities by the States should now be made a priority.

7. To counter impunity for extrajudicial executions, where the police cause the death of a person in an ‘encounter’, there must be mandatory registration of FIR under Sec.302 IPC against the police and there must be an independent investigation of the same. Whether the police acted in self-defence or committed culpable homicide is to be decided by the competent court.

8. Families of victims should have full and easy access to autopsy reports, death certificates and other relevant documentation to allow them to proceed with their lives.

9. The practice of inviting UN special procedures should be continued, especially in areas where international concern has been expressed, such as torture, counter-terrorism measures, and minority rights.

10. Increased sensitizations and orientation programmes in respect of gender-based killings, ‘honour’ killings, dowry deaths and witch killings should be undertaken, both for the police, judiciary and public especially in the areas of the country that most affected.

11. An effective witness and victim protection programme should be established.

12. The National Human Rights Commission should be given the mandate to investigate the actions of the Armed Forces, and there should not be a year cut-off date on the cases they can consider. The Commission should develop a strategy to enhance its contribution towards protecting the right to life which goes beyond mere references to laws and procedures, and focuses on actual impact. The NHRC should undertake a review of compliance with its guidelines on ‘encounter’ killings, and whether their guidelines work in practice. They should also issue guidelines on inquests and autopsies. The independence and working of state human rights commissions should be reviewed.

13. Place a moratorium on the death penalty in accordance with General Assembly resolution 65/206.

URL http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12029&LangID=E

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