Archive for the ‘Papers’ Category

Ambivalence of Citizenship in Assam

July 3, 2016

The process of identifying “citizens” through the preparation of the National Register of Citizens for Assam, coupled with changes in the Citizenship Act, 1955 that apply specifically to Assam and allow for a “hyphenated” citizenship– “Indian” and “Assamese”–continues to be troubled issues that have not abated since the 1980s, writes Anupama Roy.

The foreigners’ question that festered in Assam in the 1980s endures today. However, its resolution is no longer sought in the violent elimination of the non-Assamese-speaking outsiders or solely through the legal mechanisms of the Foreigners Act, but through bureaucratic intervention, pushed by a political consensus on identifying those who belong. Towards this end, Assam has seen over the past two years an unprecedented bureaucratic exercise of identifying “citizens” to prepare a “National” Register of Citizens (NRC) for Assam.

The history of identification of citizens and sifting out non-citizens goes back to the Assam movement and the Assam Accord. The present moment, however, is significant for its coalescence with the changes made in 2003 in the Citizenship Act, 1955, which eliminated citizenship by birth and gave precedence to descent. The absence of a “political” contestation in Assam over the NRC, and the approval it has among people across Assam, is symptomatic of the continuing appeal of an “authentic” Assamese identity, which is currently being officially debated in the state, and of trust in an “efficient” mechanism of identification of citizens, painstakingly developed by the NRC commissioner of Assam.

The Assamese Exception

“It is a register of Indian citizens,” an eminent journalist from Assam, who has reported and written extensively on the preparation of the NRC, corrects me, when I ask him about the preparation of the NRC for Assamese citizens. The register being prepared in Assam is indeed of Indian citizens. But the pedigree of Indian citizenship is traced to an Assamese legacy, which makes the NRC a register of Assamese–Indian citizens or Indian citizens who are legitimate residents of Assam. The identification of Indian citizens simultaneously as Assamese recognises a hyphenated citizenship, hitherto alien to the political vocabulary of citizenship in India. Significantly, the cohabitation of what was a conflicting relationship in the 1980s has been achieved by marking out the illegal alien (“Bengali-speaking, Muslim, Bangladeshi infiltrator”), as the constituent other. Indeed, the conceptual apparatus of citizenship summoned by the components of the hyphenated citizen— “Indian” and “Assamese”—iron out the multiple layers and corresponding contestations within each.

The citizenship question in Assam has a long postcolonial history fraught with conflicts, and is reflected in the manner in which the citizenship law in India has responded to the contests over citizenship in Assam. The Citizenship Act, 1955 was amended in 1986 to inscribe an exception in the law in recognition of the extraordinary conditions prevailing in Assam. The 1986 amendment came in the wake of the Assam Accord, and pertained to the identification and sifting out of foreigners and illegal migrants from Bangladesh. While migration into Assam from Bangladesh has a long history, it was in 1971, in the course of the liberation war in Bangladesh, that several lakhs of Hindu and Muslim refugees fled to Assam. On 8 February 1972, the Prime Ministers of India and Bangladesh issued a joint declaration in which the Government of India assured “all possible assistance to the Government of Bangladesh in the unprecedented task of resettling the refugees and displaced persons in Bangladesh” (Baruah 1999: 119). Not all refugees returned, and Bangladeshi migrants continued to cross the border into Assam and other parts of India in search of livelihood. Within Assam, the presence of large numbers of “foreigners” instilled a sense of unease at the change in demography, language and culture, and pressure over resources. A powerful popular movement erupted in the 1980s, led and steered by the All Assam Students Union (AASU) demanding the ouster of foreigners. The movement lay claim to a distinctive Assamese identity and based on this, differentiated citizenship. Grounded in the principle of “different yet equal,” difference was articulated in the initial years of the movement in terms of the linguistic/cultural identity of Assamese people, and later with the United Liberation Front of Asom (ULFA) taking over the struggle, in terms of unequal development and discrimination. At the root of both was a powerful sentiment of crisis in citizenship in Assam.

Yet the model of citizenship that the Assam movement invoked replicated the universal form that it was seeking to roll back in its own relationship with the Indian state. These contradictions played out in the articulation of citizenship at the national and state levels and within the state between the “ethnic” Assamese and the Bodos, the Assamese and the Bengalis, the Assamese and the tribals, etc. The accord reached between the leaders of the movement and the Indian government in 1985, and the amendment in the Citizenship Act following the accord in 1986, put in place a template of graded citizenship in Assam, and shifted the chronological boundary of citizenship for the state to 25 March 1971, from 19 July 1948, which was the constitutional deadline for the rest of the country.

The Assam Accord, signed on 15 August 1985, included the promise by the central government that it would ensure “constitutional, legislative and administrative safeguards…to protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people” and the “all round economic development of Assam.” On the question of “foreigners” in Assam, the accord evolved a graded/differentiated system, categorising them on the basis of the date of their entry into Assam. It legitimised the citizenship status of those who had entered Assam from the (then) East Pakistan before 1 January 1966. Those who had entered the state between 1 January 1966 and 24 March 1971 were to be legitimised in phases, that is, they were to be disenfranchised for a period of 10 years from the date of identification, while others who had come after 24 March 1971 were to be deported as illegal aliens.

Sixth Category of Citizenship

In November 1986, Parliament amended the Citizenship Act, 1955 by adding Section 6A which introduced a sixth category of citizenship in India along with birth, descent, registration, naturalisation, and by incorporation of foreign territory into India. This new category of citizenship was to apply exclusively to Assam. The amended act laid down that all persons of Indian origin who came to Assam before 1 January 1966 from a specified territory (meaning territories included in Bangladesh) and had been ordinarily resident in Assam will be considered citizens of India from the date unless they chose not to be. It also added that persons of Indian origin from the specified territories who came on or after 1 January 1966 but before 25 March 1971 and had been resident in Assam since and had been detected as “foreigner” in accordance with the provisions of the Foreigners Act, 1946 and Foreigners (Tribunals) Orders, 1964, upon registration will be considered as citizens of India, from the date of expiry of a period of 10 years from the date of detection as a foreigner. In the interim period they will enjoy all facilities including Indian passports, but will not have the right to vote. All other persons who entered the state on or after 25 March 1971, upon identification as illegal migrants under the Illegal Migrants (Determination by Tribunal) (IMDT) Act, 1983, will be deported.

With the signing of the Assam Accord, we can see the confirmation of a hierarchised model of citizenship constituted by the universal “we,” the Assamese people, whose claim to citizenship was beyond any legal dispute. The universal “we” was superimposed on residual citizens, whose citizenship was rendered ambivalent by their linguistic identity and their religion. The government sought to resolve this ambivalence through law, by conferring deferred citizenship onto some, through the determination of their legality by the Foreigners Act. The rest, that is, those who arrived in India on or after 25 March 1971, were illegal aliens, confirmed as such by the IMDT Act, and deported from India. In actual practice, however, since both the Foreigners Act and the IMDT Act applied simultaneously, and prescribed different modes of determining citizenship, in a context of continuing influx of immigrants from Bangladesh the residual citizens occupied a zone of perpetually indeterminate/liminal citizenship and suspect legality. Moreover, as far as the mode of identification of “illegal migrant” or “foreigner” was concerned, the IMDT Act was more protective of the interests of the immigrant, since it shifted the responsibility of producing evidence from the person identified as an “illegal migrant” to the “prescribed authority,” and demanded a locus standi from the applicant identifying the illegal migrant as such.

The Supreme Court scrapped the IMDT Act in 2005 removing what was largely perceived in Assam to be an anomalous and unfair exception. In its judgment, delivered on 12 August 2005, in response to a petition seeking its repeal by Sarbananda Sonowal, a former president of AASU, former member of legislative assembly and member of Parliament from the Asom Gana Parishad (AGP) and currently the chief minister of Assam, a three judge bench declared the IMDT Act unconstitutional. While the grounds for declaring the act unconstitutional were specifically questions of legal procedure, the general principles articulated in the process had ramifications for the way in which citizenship was defined and interpreted. The Court described immigration from Bangladesh not only as illegal entry, but as an act of aggression. Arguing within a notion of bounded citizenship, the Court stated that buttressing national territorial boundaries and protection of its population from infiltrators who posed a threat to national security was an essential function of state sovereignty.

In the recent past, the contest over illegal migration and citizenship has played out yet again in the orders given by the Supreme Court in two sets of public interest litigations (PILs) questioning the constitutional validity of Section 6A of the Citizenship Act. One of these, brought before the Supreme Court by the Assam Sanmilita Mahasangha, Assam Public Works, and All Assam Ahom Association (in Assam Sanmilita Mahasangha and Others v Union of India and Another, 2014) focused on the provision in Section 6A that granted Indian citizenship to those Bangladeshis who entered Assam between 1 January 1966 and 24 March 1971. The second PIL filed by the non-governmental organisations Swajan and Bimalangshu Roy Foundation in 2012, which is still being heard, focused on that part of Section 6A, which treated all Bangladeshi migrants who entered Assam after 24 March 1971 as illegal for deportation by the state. The PIL brought by Assam Sanmilita Mahasangha and others raised anxiety over the dilution of the legal frameworks of citizenship which, they argued, promoted indiscriminate influx and put at risk the security of the state and people. The second PIL lamented the clubbing of all migrants who entered India after 24 March 1971 as illegal, and asked that illegal migrants be distinguished from displaced persons (primarily Hindu and other minority groups fleeing persecution), who must be given the legal status of citizens.

Questioning Validity of Law

The Supreme Court admitted the PIL filed by Assam Sanmilita Mahasangha and others challenging the validity of Sections 6A (3) and (4) of the Citizenship Act on the ground that it represented the interests of an entire people—the tribal and non-tribal population of Assam—and, therefore, deserved to be admitted. These interests, the judges observed, related to the protection of Assamese culture, but had larger ramifications for the sovereignty and integrity of the country as a whole. The judges left the question of the constitutional validity of Section 6A, particularly its compatibility with the citizenship provisions in the Constitution in prescribing for Assam a cut-off date for citizenship which was at variance with Article 6 of the Constitution, to be decided by a constitutional bench.

Addressing the remaining parts of the petition, they traced the historical trajectory of Section 6A to the Assam Accord, and averred that the legal modalities of conferring citizenship were only part of the Assam Accord. The other and equally substantial components of the accord consisted in securing the international border against future infiltration and the preservation of Assamese culture and identity. In October 2006, the Government of Assam constituted a committee of ministers to examine the implementation of the Assam Accord, and the complex task of defining the “Assamese people.” The committee met with political parties, literary bodies and student groups to deliberate on an appropriate definition. In July 2011, a cabinet subcommittee was constituted by the central government to examine the question.

Leaving it to the government and the Assamese people to deliberate and decide on what constituted Assamese culture, the Supreme Court limited itself to issuing specific directions to the central and state governments for the fortification and surveillance of the eastern border. It also decided to monitor the progress made in this direction by the government, by preparing a road map for its completion. The Court, however, concerned itself also with securing the territory “internally” by expediting the process of sieving out the foreigners from citizens. To this end, it asked the Gauhati High Court to hasten the process of selection of chairpersons and members of the Foreigners Tribunals to ensure that they became operational. The Chief Justice of the Gauhati High Court was to monitor the tribunals by constituting a special bench to oversee their progress. The central government was asked to streamline the process of deportation of the illegal migrants after discussions with the Government of Bangladesh, and to place the outcome of these discussions before the Court. In addition, the Supreme Court laid down a time schedule to be followed for updating the NRC in Assam so that the entire register could be published by the end of January 2016.1 In its administrative guidelines the Supreme Court followed its decision in Sarbananda Sonowal (2005) in construing the “influx of illegal migrants into the state of India as external aggression.” At the same time, however, it broadened the notion of security to include “internal disturbance,” which involved being alert to and eliminating risks to the Assamese people from outsiders. To this end, it directed the attention of the larger bench of the Supreme Court which would examine the constitutional questions precipitated by the petitions, to consider whether the expression “state” occurring in Article 355 refers only to a territorial region or includes also the people living in the state, their culture and identity. For its part, by prescribing a deadline for the updation of the NRC, the Court reinforced the responsibility taken up by the central government through the Assam Accord to update the 1951 NRC in Assam.

The second set of petitions filed in 2012 by Swajan and the Bimalangshu Roy Foundation pleads that Hindus and persons of other minorities from Bangladesh migrating to Assam to escape religious persecution must not be bracketed with illegal migrants to be slotted for deportation. Pointing out that Section 2 of the Immigrants (Expulsion from Assam) Act, 1950 protects from expulsion any person “who on account of civil disturbances or fear of such disturbances” in any area forming part of Pakistan (now Bangladesh) has been displaced from or has left his place of residence and has been subsequently residing in Assam, the petitioners ask that displaced persons should constitute a distinct category for legal protection, and that Hindus seeking shelter in Assam should be given citizenship on the same grounds that they have been given in Gujarat and Rajasthan between 2004 and 2007 (Telegraph 2013).

After the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) came to power in 2014, its leaders, including the BJP chief Amit Shah, have spoken in rallies in Assam assuring citizenship to Hindus who had fled to India to escape religious persecution in Bangladesh. Indeed, the government has promised to enact a law for the rehabilitation of Hindu refugees from Pakistan and Bangladesh, setting up a task force to expedite pending citizenship requests from refugees, and issuing long-term visas of 10–15 years, wherever citizenship requests were taking long to process. At the same time, echoing the campaign speeches of Prime Minister Narendra Modi in the 2014 Lok Sabha elections, Shah had been convincing people in Assam that the BJP would get rid of “infiltrators.” Indeed the BJP declared immigration policy a major plank of its campaign in the Assam assembly elections in 2016. On 9 April 2016, speaking in a rally at Sonari, Amit Shah promised to give the Assamese people a Bangladeshi-migrants-free Assam if BJP was voted to power (Kashyap 2016). In an article in the Indian Express, Samudra Gupta Kashyap elaborates on the number of Bangladeshis in Assam, arguing that the numbers remain disputed, with the Congress and the All India United Democratic Front (AIUDF) believing that “infiltration” is not as substantial as it is made out to be by the AASU. Yet, since 1985, Foreigners Tribunals have declared 38,000 persons in Assam as illegal migrants, of whom most have either absconded or are in detention in camps. The Foreigners Tribunal is scrutinising over a lakh cases. Nearly 1.5 lakh names in Assam’s electoral rolls are marked “D” standing for “doubtful” to convey their citizenship status. Interestingly, the “D” voters are permitted to apply for inclusion of their names in the NRC, but their registration would ultimately depend on the verdict of the Foreigners’ Tribunals (Kashyap 2015).

Bounded Citizenship

As mentioned earlier, whereas in the rest of the country, the cut-off date for citizenship inscribed in the Constitution is 19 July 1948, with the 1986 amendment in the Citizenship Act, Assam became an exception to the constitutional deadline, with 24 March 1971 becoming the new cut-off applied exclusively to Assam. The NRC in Assam works on the principle of tracing citizenship to a legacy of Assamese descent going back to the 1951 NRC and to next signpost, 1971—the “additional load,” as Prateek Hazela, commissioner and state coordinator of NRC, called it in an extensive interaction with the author.

Yet, the NRC is not only about integration and closure, or even the recognition of an Assamese identity by descent or through affirmation of legal residence in Assam. It is equally about a humongous bureaucratic exercise of identification and enumeration of citizens, of putting in place efficient and effective identification regimes and associated documentation practices, often associated with the exercise of state power, and state-formative practices. A body of scholarship has established that such practices produce the structural effect of the state, whereby the state appears to exist through palpable ruling practices. Fixing territorial boundaries, and making its inhabitants legal are important ingredients of statecraft, which seek to make the citizen a stable and enumerable category, amenable to specific governmental practices. The regimes of national identity systems enumerating entire populations of nation states, make these systems more comprehensive and consequential. In recent years, digitalised and biometric identification systems have made identification regimes more efficient but also intrusive than the older paper-based documentation regimes, for their potential for surveillance of citizens. The diverse components of surveillance such as tools and technologies of survey, measurement, census, etc, have long been used for marking what lies within the purview of the state’s powers of extraction and control, enhancing and entrenching its powers of revenue collection, garnering military service, law enforcement, and policing. Over the years these tools have become more sophisticated, specialised and differentiated, and increasingly more nebulous, not requiring the constant proximity between the law enforcers and the people (Singh 2014: 42).

It is indeed possible to see the NRC as part of the continuing legacy of governmental practices of the state, and its potential for surveillance and control. In 2003, the amendment to the Citizenship Act brought about two significant changes—the recognition in law of the category of Overseas Citizen of India (OCI), and the constraining of citizenship by birth by confining it to only those whose parents were Indian citizens already or if one of the parents was an Indian citizen and the other was not an illegal migrant. In addition, the Citizenship (Registration of Citizens and the Issue of National Identity Cards) Rules of 2003 provided the procedure for the “establishment and maintenance” of the NRC. Section 14A made the registration of all citizens of India, issue of national identity cards, the maintenance of a national population register, and the establishment of the NRC by the central government compulsory.

The preparation of the NRC in the entire country is yet to take off, and the National Population Register (NPR) which is being prepared alongside the Unique Identification (UID) Aadhaar is expected to lead on to the issue of national identity cards based on citizenship (not just residence) and the NRC, after the illegal migrants who may have entered the NPR are weeded out.

The trajectory of the NRC in Assam, however, can be traced to the decisive moment in 2005, when the Supreme Court scrapped the IMDT Act. While delivering the judgment, the Court directed that all persons with suspect citizenship be brought under the purview of the Foreigners Act, 1946. The then Chief Minister Tarun Gogoi proposed that the NRC prepared in 1951 in the state be updated to resolve all contests over the foreigner issue, and also put to rest the apprehensions of the AASU and the AIUDF. A separate directorate was established by the Government of Assam to update the NRC. However, it did not make any progress beyond the computation of available data, partly because the NRC 1951 for all the districts of Assam was not readily available with the state government2 (Kashyap 2007, 2015).

In 2007, the Gogoi reiterated the desirability of having an updated NRC, but also drew attention to the intricacies of the process and the problems accruing from the fact that a large number of legitimate residents of Assam, such as the tea garden workers, may not actually have any documentary evidence to trace their residence in the state to 1971 or 1951. In addition there was no clarity as to where the legal authority of the process of updation would come from—a constitutional amendment or statute of the central government approving the modalities framed by the state government. A cabinet subcommittee was set up by the state government to draw up the modalities, to finalise the procedures and structures of establishing the link of every person to the electoral rolls of 1971, which could then be connected to the NRC of 1951. In 2015, when the Supreme Court issued directions to the state government to accelerate the process and complete it within a prescribed time frame, the central government provided the guidelines and funds for updation and the process was carried out by the state government, under the guidance of the Registrar General of India, as provided in the amended Citizenship Act. A senior IAS officer headed the NRC as its commissioner and coordinator (Kashyap 2015).

Rationality, Efficiency and Trust

Elaborating the complex modalities of updating the NRC, Prateek Hazela foregrounded aspects of the NRC, which are decidedly distinct from the political imperatives of tracing an Assamese legacy. Hazela professes a bureaucratic rationality, propelled by the logic of efficiency, and driven by the objective of developing a foolproof mechanism of identifying Indian citizens resident in Assam. At the same time, since the efficiency of the identification system depended on the active and willing participation of the people of Assam, the technical model had to be made acceptable and comprehensible to the Assamese people as a whole. To be acceptable, a system needs to be made familiar to people. This is possible only after an initial confidence is built. Indeed, in the sequence followed by the NRC commissioner, generating trust for the NRC was the first essential step before the actual process of enumeration could begin. Ajupi Baruah, project manager with the NRC, described the process as akin to invoking a sentiment—of creating a frenzy—which could then be channelled into winning people’s trust, alleviating their apprehensions, and ensuring their participation.

The NRC hoardings and visual promos played in cinema halls and television channels included Bihu songs and dances around the NRC theme. Using familiar cultural tropes, promotional videos were intended to build curiosity, and subsequently anticipation, which could translate into popular acceptance, enabling collective participation in a massive and complex exercise. Indeed, the NRC anthem sung by the popular Assamese singer Zubeen Garg (Jibon Borthakur), wove together pleasing visuals of plurality and cultural diversity, promising the following:

We are the citizens of this country

NRC represents our each and every soul.

We hold each other’s hands

NRC gives courage in our hearts.

Our identity, security, rights,

Peace, progress, and unity together.

The emotive appeal of the NRC anthem lay in the promise of citizenship as a collective national political identity, juxtaposed on an inclusive Assamese identity characterised by cultural plurality. A leaflet issued by the state coordinator NRC, Assam, invoked the spirit of responsible participation, by reminding citizens of their civic role in “standing united and making the NRC a success story for us and our future generations.”

Once curiosity had been generated and anticipation built, the second, and more difficult step was to make people familiar with the complex procedures. The NRC office adopted a range of strategies to make the system comprehensible. These included educational videos and television advertisements, newspaper advertisements, leaflets, pamphlets and posters with illustrative examples of registration of a fictitious family, public meetings, community level meetings and gram sabhas, etc, to build, as the NRC commissioner expressed it, people’s “capacity” to register themselves.3

It may be recalled here, that in the Assam Sanmilita Mahasangha’s petition before the Supreme Court questioning the constitutional validity of the 1986 amendment and consequently Section 6A of the Citizenship Act for being at variance with the Article 6 of the Constitution, the Supreme Court had issued instructions to the state government to expedite the process of preparing the NRC and to the Gauhati High Court to accelerate the process of identification of foreigners and illegal migrants. The entire process of preparation of the NRC was to be monitored by the Supreme Court. The thumb rule for identification of a citizen was to trace his or her pedigree to an ancestor who had resided in Assam on or before the deadline of 24 March 1971, by referring to what the NRC called and generated as “legacy data.” The data of the 1951 NRC and the electoral rolls published in Assam up to 24 March 1971 cumulatively comprised the legacy data. Finding an ancestor in the legacy data to whom a person could trace direct descent was the most common mode of identification for inclusion in the NRC.

Before the process of tracing legacy could begin, the NRC office had to coordinate the compilation of large and dispersed data on the 1951 NRC and the electoral rolls which were available at district levels, into one consolidated computerised database. The statutory publication of the legacy data was done alongside the launch of 2,500 NRC seva kendras (NSKs) on 27 March 2015, marking the inauguration of the process of updation of the NRC. Spread across the state, in districts, and clusters of villages, the NSKs housed the published legacy data, provided access to the digital database, and also served as application receiving centres. After an ancestor had been traced in the legacy data, the computerised database assigned to the applicant an 11 digit number called Unique Legacy Data Code, which gave the applicant a numerical link with the ancestor. The applicant quoted the legacy data code at the time of submission of the application. The legacy code became the basis of the verification of the applicant’s claims and also linked him/her up to others who had the same code because of common ancestry. Apart from the data code providing legacy trace, the applicants furnished a number of “linkage documents” carrying the names of both the ancestor and the applicant, to establish connections with the ancestor appearing in the legacy data.4

Apart from those who could trace their legacy to the 1951 NRC, other categories of persons considered eligible for inclusion were those who came to Assam on or after 1 January 1966 but before 25 March 1971, and had registered themselves with the Foreigner Regional Registration Office (FRRO) and had not been identified as illegal migrants or foreigners, and the “original inhabitants” of Assam and their children and descendants whose citizenship could be ascertained by the registering authority. Subsequent Supreme Court orders permitted Indian citizens and their children and descendants who moved to Assam after 24 March 1971 to apply for inclusion, if they could furnish evidence that they were resident in any part of the country outside Assam on 24 March 1971. As per another Supreme Court order, all the members of the tea tribes are covered under “Original inhabitants of Assam” category provided for under Clause 3(3) of the Schedule of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003. The project officer with the NRC clarified that in the absence of any proof of residence, and non availability of legacy data code, original inhabitants like the Karbis could be registered through the affirmation of their status by what was called a “speaking order” whereby, the Local Registrar of Citizen Registration (LRCR) could certify that despite no documents, on the basis of their language, food, clothes, etc, it could be assumed that they were the original inhabitants of the state.

After the publication of the legacy data and the launch of the NSKs, the process of actual application began. The forms were distributed to the people at their houses but could also be downloaded from the website. The head of the family was expected to apply for the entire family, including the daughters. All members of the family, who were residing in Assam, or outside in any other part of the country, or abroad, had to be included in the application. In case of institutional homes, like orphanages, old age homes, asylums, etc, the head of the institution would apply for the inmates.5 Photocopies of all documents, showing the names of the persons in the family who figure in the legacy data, and additional linkage documents showing relationship with the ancestor in the legacy document were submitted at NSKs designated for particular localities, whose officials would be responsible for conducting the physical verification of the details by visiting the addresses mentioned in the form.

The NRC updation process is presently at the stage of verification of 68.33 lakh application forms it has received, along with five crore supporting documents.6 Verification is done as per the provisions of the Citizenship (Registration of Citizens and Issue of Identity Cards) Rules 2013, and consists of two parts—office verification and field verification. Office verification entails the scanned and uploaded copies of all documents being sent to the issuing authority to confirm whether the document was in fact issued by it and whether the details in the document corresponded with the records that existed with the issuing authority. If official verification was intended to weed out forged documents, field verification consisting of house to house visits by the verification team intended to check identity proof, verify submitted documents for validity and establishment of relationship, and collect details of the ”family tree” to match the detail with those submitted by various applicants across Assam. Matching the family tree submitted by applicants with the one generated by the computer software on the basis of forms received was designed to detect false claims.7

Indeed the family tree is an innovation where authenticity of claims to residence and citizenship are affirmed through the kinship network. A family tree form is filled up by the visiting team from the information given by the applicant in the form and to the visiting team. This “manual family tree” is checked against a computer software-generated family tree carrying the details of all the persons who have claimed to be children or grandchildren of the same legacy person.8 The ongoing verification process will be followed by the publication of the draft NRC, and subsequently the receipt and disposal of claims and objections and the publication of the final NRC.

Conclusions

The NRC marks continuity with a notion of citizenship that can be traced to the Assam Accord, the contestations around the amendment of the citizenship act in 1986, and subsequently the Supreme Court judgment in the Sarbananda Sonowal case 2005. The petitions by the Assam Sanmilita Mahasangha and others and Swajan and Bimalangshu Roy Foundation questioning the constitutional validity of Section 6A of the Citizenship Act, have added fresh dimensions to the debate, which became significant in the electoral competition in the state in the 2016 state assembly elections. The widespread acceptance of the NRC among the Assamese people is indicative of a consensus among the Assamese people on the resolution of the question of citizenship. There are different streams in the political consensus, with one strand seeing it as a continuing commitment to the Assam Accord and its potential to alleviate the crisis in citizenship, and another preferring to contest the accord’s capacity to resolve the problem. Thus, while Tarun Gogoi vouched for the efficiency of the tools developed by the NRC office to update the NRC, others have expressed the fear that it may only legitimise the Bangladeshi immigrants.

In the course of the election campaign, Himanta Biswa Sarma who had migrated to the BJP from the Congress, and was now its chief strategist, declared his disagreement with the continuation of 1971 as the deadline for the NRC, reiterating the dominant BJP position that the party is committed to granting citizenship status to Hindus who came to Assam after the 24 March 1971 deadline (Bhattacharjee 2016). In addition, claiming that the Assam Accord provisions pertaining to citizenship are disputed and challenged in the Supreme Court, Sarma has chosen to foreground that part of the accord, which promised that the original inhabitants of Assam and their culture be protected. In line with this, he would prefer to see the citizenship signpost pushed back to 1951, and those who came to Assam between 1951 and 1971 be given refugee status and not full citizenship (Sarma 2016). An AASU member in a political meeting in Sarbananda Sonowal’s constituency Majuli communicated this as follows:

The Tarun Gogoi government has to go. People will have to come out this time if they want the Axomiya jati (the ethnic Assamese) to survive. Or else we will become foreigners in our own land. It wasn’t for nothing that Bhupen Hazarika sang long ago, ‘Aami axomiya nohou dukhia buli santona lobhile nohobo’ [It is not enough of a succour to believe that we Assamese will never be poor in our own land].

An appeal by AASU in the Supreme Court in February 2016, challenging the decision taken by the central government to give citizenship to displaced Hindus from Bangladesh, was withdrawn after the announcement of Sarbananda Sonowal’s name as the BJPs chief ministerial candidate (Pisharoty 2016). Yet, there is a strong sentiment in AASU, often also reverberating in Sonowal’s statements, which continues to support the accord, the 1971 deadline, and its affirmation in the of 2005 Supreme Court judgment (Hindu 2016). Not surprisingly, a day after he was sworn in as Chief Minister Sonowal visited the NRC office assuring complete support to the endeavour. Yet, the doublespeak in the BJP, and its emphasis on the resolution of the “foreigners question,” as evident from the assembly election results declared on 19 May 2016, have resulted in consolidating the Hindu votes in favour of the BJP. Whether it will replace a plural Assamese identity with one rallying around religion, only time can tell.

Notes

1 Judgment delivered by Justice Ranjan Gogoi and R F Nariman on 17December 2014 in the case Assam Sanmilita Mahasangha and Others v Union of India and Others (2012): Writ Petition (Civil) No 562. In May 2015, the court appointed a court commissioner to visit the border areas to study and report the progress made.

2 The decision to update the NRC was announced by the Assam government in 2005. A pilot project was launched in the assembly constituencies of Barpeta and Chhaygaon in 2010. While the Chhaygaon updating was successfully completed, the one at Barpeta had to be called off following violent protests by the All Assam Minority Students’ Union. AASU and other groups pressed for a resumption of the process. The Supreme Court intervened and fixed 31 October 2015 as the date for publishing the draft NRC, and 31 January 2016 as the deadline for the final NRC.

3 See Government of Assam, National Register of Citizens, http://nrcassam.nic.in/faq01.html, accessed on 14 May 2016.

4 The following documents are admissible: birth certificate, land documents, PAN card, board university examination certificate, bank account, LIC policy, post office documents, gram panchayat secretary certificate, electoral roll, etc. In case an ancestor’s name was not found in the legacy data, application for inclusion may be made for inclusion in the NRC by providing any of the other admissible documents issued before 24 March 1971 (midnight), namely, (i) land and tenancy records, (ii) citizenship certificate, (iii) permanent residential certificate, (iv) refugee registration certificate, (v) passport, (vi) LIC policy, (vii) government-issued license/certificate, (viii) government service/employment certificate, (ix) bank/post office accounts, (x) birth certificate, (xi) board/university educational certificate, (xii) court records/processes. See nrcassam.nic.in/faq02.html (accessed on 14 March 2016).

5 NRC, leaflet on application form receipt, filing and application, 2015 (not numbered).

6 NRC, leaflet on verification of NRC application forms and family tree detail submission for an error free NRC, Leaflet no NRC Assam/leaflet/verification-1/2015.

7 See note 6.

8 See note 6.

References

Baruah, Sanjeeb (1999): India Against Itself: Assam and the Politics of Nationality, Delhi: Oxford University Press.

Bhattacharjee, Nilotpal (2016): “BJP, AGP In Migrant Divide,” Telegraph, 6 March.

Hindu (2016): “Sarbananda Unanimously Elected as BJP Legislature Party Leader in Assam,” 22 May.

Kashyap, Samudra Gupta (2007): “Assam Yet to Update National Register of Citizens,” Indian Express, 6 August.

— (2015): “In Assam, An Ongoing Effort to Detect Illegal Bangladeshi Migrants,” Indian Express, 17 June.

— (2016): “BJP Will Rid Assam of Bangladeshis: Shah,” Indian Express, 10 April.

Pisharoty, Sangeeta Barooah (2016): “We will Demand Full Implementation of the Assam Accord from Any Party That Wins,” The Wire, 22 March.

Sarma, Himanta Biswa (2016): “In This Assam Poll, Bangladesh Immigrants Want Their Own CM too,” Indian Express, 15 February.

Singh, Ujjwal Kumar (2014): “Surveillance Regimes in India,” States of Surveillance: Counter-Terrorism and Comparative Constitutionalism, Fergal Davis, Nicola McGarrity and George Williams (eds), London: Routledge.

Telegraph (2013): “SC Mulls Case of Refugees—Apex Courts Asks Centre & Dispur to Respond to PIL,” 26 July, Kolkata.

The Wire (2016): “BJP Pins Its Hopes on Anti-Immigrant Sentiment in Assam Polls,” 4 April, accessed on 16 May 2016.

————

Anupama Roy (royanupama07@gmail.com) is with the Centre for Political Studies, Jawaharlal Nehru University, New Delhi.

The author would like to thank Sanjeeva Kumar, Prateek Hazela, Akhil Datta, Banasmita Bora, Santana Khanikar and Ankita Datta for their help and support.

The paper has been published in the Economic & Political Weekly and is available here: http://www.epw.in/journal/2016/26-27/perspectives/ambivalence-citizenship-assam.html . This is a reproduction in toto for wider dissemination.

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Assam: The displaced Reangs in Hailakandi district

October 3, 2012

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

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

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

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

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

To view/read/download click here.

 

 

 

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

August 14, 2012

Forwarded statement

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

INDIA: Reform dishonesty first

August 13, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Assam: Heal thy injuries in/ of Bodoland

August 10, 2012

Dr. Prasenjit Biswas*

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

Photo: samaylive.com

Photo: samaylive.com

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

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

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

Photo: Thehindu.com

Photo: Thehindu.com

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

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

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

Photo: thenational.ae

Photo: thenational.ae

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

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

Photo courtesy: Jagaran.com

Photo courtesy: Jagaran.com

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

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

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

DIGEST OF INTERNATIONAL JURISPRUDENCE ON THE PROTECTION OF HUMAN RIGHTS WHILE COUNTERING TERRORISM

June 16, 2012

The non-state armed groups (insurgents, extremists or terrorists, whatever you may call them) need to be dealt with and contained because they violate rights of the people to live peacefully, they try to impose their will on the people and the state unlawfully and violently trampling the constitutionalism and the rule of law that are sine qua non for civilised human existence. It is the mandate of the state to maintain the reign of law and constitution and the writ of the government established by law along with ensuring security and safety of the person and property of the citizens. But when the state through its security forces and law enforcement agencies commits more atrocious acts than the acts which it professes it is fighting the difference between the non-state terrorists and the state gets blurred.

Since independence in 1947 as in colonial times India has a number of laws containing provisions that are termed by the liberal jurists and human rights defenders as draconian and repressive unparalleled in the democratic world. Such laws are held responsible for regular violations of human rights with impunity resulting in defeat of the rule of law and continuity of lawlessness breeding more terrorism and violence. Despite this reality there is also a shrill voice for more stringent laws in the country.

Even before the terrorist attack in Mumbai on 26 November, 2008 the demand for “stronger and tougher anti-terror laws” kept getting shriller and hasher and was being projected as panacea. It started after the present parliament repealed the Prevention of Terrorism Act, 2002 (POTA), although some provisions of POTA incompatible with human rights laws were incorporated into the Unlawful Activities (Prevention) Act, 1967 (UAPA) by way of amendment. The discourse of ‘tough’ laws is premised entirely on the misrepresentation of facts. It seems that the advocates of ‘tough’ laws want us to believe that there were no terrorist attacks in India when some of the “toughest” (read most draconian) laws in the civilised world were in force such as the Armed Forces (Special Power) Act, 1958 (AFSPA) and its other local variants; the National Security Act, 1980 (NSA); the Terrorist and Disruptive Activities Act, 1987 (TADA); POTA; UAPA and other state enactments. But the reality is that some of the worst terror offences were perpetrated when these “stronger and tougher anti-terror laws” were in force such as hijack of an airIndia flight from Kathmandu to Kandhahar, Red Fort attack, parliament attack etc.

New law becomes necessary when existing provisions are proved ineffective or counter effective. There are still many draconian and colonial provisions in our general criminal law composed of the Indian Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC) the Evidence Act, 1972 and others. Records of implementation and effective implementation of laws in India is very dismal due to many factors including corruption and inadequacy in both quantity and quality of man-power in the Criminal Justice Administration System and the inefficacy of some of the provisions of law themselves. With registration of First Information Report the justice administration machinery gets into motion. There are hundreds of thousands of cases where police does not register FIR without being greased. It has become the rule in some part of the country. There are also numerous cases of custodial torture and death for not paying gratification by the detainee/arrestee or their relatives to the police. When the state of the things is this it is ridiculous to think that “stronger and tougher anti-terror laws” will free us from crimes and criminals, let alone the question of terrorism.

Terrorism is the worst form of crime. It is just a matter of common sense that the people who love to kill and get killed would not have any fear of law howsoever “tough” and “strong” that law may be. Soon after the terrorist attack in Mumbai, Barak Human Rights Protection Committee (BHRPC) reminded that “it has been seen that in countering terrorism the state often succumbs to the design of the terrorists by failing to respect the human rights of the people. When this happens the terrorism triumphs because the state itself does the act of terror. More over, failure to respect human rights creates breeding ground of terrorism” in a statement issued to condemn the attack. Counter terror laws and practice violating human rights are used by the terrorists to justify their heinous acts and the state cites these terrorist acts to justify its acts of violations of human rights. In the process the ordinary human beings are just sandwiched between state and non state terror. These two forms of terrorism feed on each other and are same for general population.

Unfortunately the Indian State has succumbed to the terror design and gave them the triumph after the Mumbai attack. A bill has been passed amending the UAPA after the November attacks in Mumbai which violates international human rights treaties.

New amendments to anti-terror laws include: 1. Sweeping and overbroad definitions of “acts of terrorism” in violation of the principle of legality, 2. No clear and strict definition of what constitutes “membership” of a “terrorist gang or organization” also violate the principle, 3. Minimum period of detention of persons suspected to be involved in acts of terrorism extended to 30 days from 15 days and the maximum period of detention of such persons to 180 days from 90 days – already far beyond international standards, 4. Denial of bail to foreign nationals who may have entered the country in an unauthorised or illegal manner, except in very exceptional circumstances, also violates international human rights standard, 5. The requirement, in certain circumstances, of accused people to prove their innocence, is in violation of basic principle of universal criminal jurisprudence and natural justice.

Another new legislation has been passed constituting the National Investigating Agency which, inter alia, authorises special courts to close hearings to public without defining or limiting the grounds under which they may do so. This is also in violation of the due process principle.

While introducing the bill for amendment of the UAPA, the government took plea in the preamble of the bill that it is bound under several international instruments to combat terrorism specifically citing some select United Nations Security Council Resolutions such as1267 (1999), 1333 (2000), 1363 (2001), 1373 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822 (2008). But ignored the dictum of the resolution 1535 (2004) adopted by the Security Council at its 4936th meeting, on 26 March 2004 which reminded the “States that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law”. More over, there are many international instruments acceded or ratified by India which put the state under obligation to adhere to the human rights norms in all its activities including counter terrorism.

When POTA was repealed by the government most of the resolutions cited were in existence. Citation of these resolution and invoking international obligations are nothing but taking recourse to false plea. A look into the jurisprudence of the united nations and regional organizations on the protection of human rights while countering terrorism would show the hypocrisy of the Indian State so far its invocation of the international obligations is concerned.

In this background the digest on terror jurisprudence complied by the Office of the High Commissioner of Human Rights of the United Nations is a necessary tool for the human rights defenders, lawyers, academics, law-enforcement officials. law-makers, policy makers etc. The digest can be downloaded from here.

Bhuvan valley: Stay hungry and shut up

April 3, 2012

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

Waliullah Ahmed Laskar[1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Concerns over civil and political rights in Assam

October 4, 2011

Waliullah Ahmed Laskar[1]

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

Ratification of the Convention Against Torture and Its Optional Protocol

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

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

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

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

Optional Protocol

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

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

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

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

Ratification of the Convention on Enforced Disappearance

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

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

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

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

Other Challenges Relating to Civil and Political Rights

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

Policing

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

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

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

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

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

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

– Superintendent of Police (in charge of a District)

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

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

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

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

6. Police Complaints Authority[22] and

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

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

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

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

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

Implementation of the Laws

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

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

Anomalies in the Legal Regime

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

Repeal Draconian Laws

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

Waliullah Ahmed Laskar

Barak Human Rights Protection Committee (BHRPC)

Silchar, Assam


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

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

Statement of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, as she concludes her visit to India

January 22, 2011

Statement of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya, as she concludes her visit to India

NEW DELHI, 21 January 2011 – From 10 to 21 January 2011, I carried out a fact-finding mission to assess the situation of human rights defenders in India, and traveled to New Delhi, Bhubaneshwar (Orissa), Kolkata (West Bengal), Guwahati (Assam), Ahmedabad (Gujarat), Jammu and Srinagar (Jammu and Kashmir).

I met with the Foreign Secretary; the Union Home Secretary; the Additional Secretary (International Organisations and Environment Diplomacy); the Joint Secretary (Human Rights), Ministry for Home Affairs; the State Chief Secretary, State Home Secretary and Director-General of Police in states visited; the Chairperson of the National Human Rights Commission; Members of the Statutory Full Commission; Chairpersons and Members of State Human Rights Commissions; and Judges from the High Court in Delhi. However, I regret I was unable to meet the Prime Minister, nor with members of the Parliament.

I met as well with members of the diplomatic community and United Nations agencies in the capital. Finally, throughout my mission, I met a very wide and diverse segment of the civil society through national and regional consultations.

I thank very much the Government of India for extending an invitation to me and for its exemplary cooperation throughout the mission. I further want to thank all human rights defenders with whom I had meetings, some of whom had to travel long distances to meet me. Finally, I want to express my appreciation to the Office of the United Nations Resident Coordinator in India for its invaluable support in preparation of and during the mission.

While I must now take some time to review and analyse the considerable amount of information I have received, and to follow up on further exchanges of information with the Government, human rights defenders and other stakeholders, I would like to provide a few preliminary observations and recommendations.

I first want to commend the Government for opening its doors to my mandate. Previous requests to visit India were made by my predecessor in 2002, 2003 and 2004. This is an important development, and I hope that the invitation requests of other Special Procedures mandate-holders will be similarly honoured in the near future.

I further commend the Government for enabling me to visit five states, which assisted me in gaining a clear understanding of the local specificities in which human rights defenders work. Given the duration of the mission and the size of the country, I regret I could not access all parts of the country, but I invite those who wish to do so to provide me with information now or in the near future.

I note with satisfaction that India has a comprehensive and progressive legal framework which guarantees human rights and fundamental freedoms, as enshrined, inter alia, in the Constitution, the Protection of Human Rights Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, and the Right to Information Act. I welcome the commitment expressed by Indian authorities to uphold human rights.

I further welcome the draft Bill on the Prevention of Torture with a view to ratifying the Convention Against Torture in the near future.

Besides the National Human Rights Commission and existing State-level Human Rights Commissions, I note the existence of a wide range of Statutory Commissions mandated to promote and protect the rights of, inter alia, women, children, scheduled castes and scheduled tribes.

However, despite the aforementioned laws aimed at promoting and protecting human rights, I note widespread deficiencies in their full implementation at both central and state levels, adversely affecting the work and safety of human rights defenders. Similarly, I have observed the need for the National and existing State Human Rights Commissions to do much more to ensure a safe and conducive environment for human rights defenders throughout the country.

Throughout my mission, I heard numerous testimonies about male and female human rights defenders, and their families, who have been killed, tortured, ill-treated, disappeared, threatened, arbitrarily arrested and detained, falsely charged, under surveillance, forcibly displaced, or their offices raided and files stolen, because of their legitimate work in upholding human rights and fundamental freedoms.

These violations are commonly attributed to law enforcement authorities; however, they have reportedly also shown collusion and/or complaisance with abuses committed by private actors against defenders. Armed groups have also harassed human rights defenders in some instances.

In the context of India’s economic policies, defenders engaged in denouncing development projects that threaten or destroy the land, natural resources and livelihood of their community or of other communities, have been targeted by State agents and private actors, and are particularly vulnerable.

I am particularly concerned at the plight of human rights defenders working for the rights of marginalized people, i.e. Dalits, Adavasis (tribals) religious minorities and sexual minorities, who face particular risks and ostracism because of their activities. Collectivities striving for their rights have in fact been victimized.

Women human rights defenders, who are often at the forefront of the promotion and protection of human rights, are also at particular risk of persecution.

Right To Information (RTI) activists, who may be ordinary citizens, have increasingly been targeted for, among others, exposing human rights violations and poor governance, including corruption of officials.

Other defenders targeted include those defending women’s and child rights, fighting impunity for past human rights violations, seeking accountability for communal pogroms, upholding the rights of political prisoners, journalists, lawyers, labour activists, humanitarian workers, and church workers. Defenders operating in rural areas are often more vulnerable.

While I acknowledge the security challenges faced by the country, I am deeply concerned about the arbitrary application of security laws at the national and state levels (in Jammu and Kashmir and in the North-East of India), most notably the Public Safety Act and the Armed Forces Special Powers Act, the Jammu and Kashmir Public Safety Act and the Unlawful Activities Prevention Act, which direly affects the work of human rights defenders.

I am troubled by the branding and stigmatization of human rights defenders, who are labeled as “naxalites (Maoists)”, “terrorists”, “militants”, “insurgents”, “anti-nationalists”, “members of underground”. Defenders on the ground, including journalists, who report on violations by State and non-State actors in areas affected by insurgency are targeted by both sides.

Freedom of movement of defenders has also been restricted under these security laws; for instance, applications of passport or renewal have been denied, as well as access for defenders to victims in some areas.

Illegitimate restrictions to freedom of peaceful assembly were also brought to my attention: for example, I was informed of instances of protests in support of a human rights defender in detention which were not allowed to take place.

Finally, I am concerned about the amendment to the Foreign Contribution Regulations Act which provides that non-governmental organisations must reapply every five years for the review of their status by the Ministry of Home Affairs in order to receive foreign funding. Such a provision may be used to censor non-governmental organisations which are critical of Government’s policies.

In view of the above, the space for civil society is contracted.

Although the judiciary is the primary avenue for legal redress, I have observed that its functioning is hampered by backlog and significant delays in administrating cases of human rights violations.

The National Human Rights Commission and the existing State Human Rights Commissions is an important additional avenue where human rights defenders can seek redress. However, all the defenders I met during the mission voiced their disappointment and mistrust in the current functioning of these institutions. They have submitted complaints related to human rights violations to the Commissions, but reportedly their cases were either hardly taken up, or the investigation, often after a significant period of delay, concluded that no violations occurred. Their main concern lies in the fact that the investigations into their cases are conducted by the police, which in many cases are the perpetrators of the alleged violations. While I welcome the establishment of a human rights defenders focal point within the National Human Rights Commission, I regret that it was not given sufficient prominence within the Commission.

Based on the above, I wish to make the following preliminary recommendations:

To the Central and State Governments:

  • The Prime Minister and the Chief Secretaries should publicly acknowledge the importance and legitimacy of the work of human rights defenders, i.e. anyone who “individually and in association with others, […] promote[s] and […] strive[s] for the protection and realization of human rights and fundamental freedoms at the national and international levels “ (article 1 of the Declaration on Human Rights Defenders, A/RES/53/144). Specific attention must be given to human rights defenders who face particular risks (as identified above).
  • Security forces should be clearly instructed to respect the work  and the rights and fundamental freedoms of human rights defenders, especially human rights defenders who face particular risks (as identified above).
  • Sensitization training to security forces on the role and activities of human rights defenders should be delivered, with technical advice and assistance from relevant UN entities, non-governmental organizations and other partners.
  • Prompt and impartial investigations on violations committed against human rights defenders should be conducted, and perpetrators should be prosecuted.
  • The Supreme Court judgment on police reform should be fully implemented in line with international standards, in particular at the State level.
  • Full implementation of laws and policies which guarantee human rights and fundamental freedoms of human rights defenders should be ensured.
  • A law on the protection of human rights defenders developed in full and meaningful consultation with civil society and on the basis of technical advice from relevant UN entities should be enacted.
  • The Foreign Contribution Regulation Act should be critically reviewed.
  • The Draft Bill on Prevention Against Torture should be adopted without further delay.
  • The Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women should be ratified. The ratification of the complaints procedure will provide women human rights defenders an opportunity to access another procedure to address any violations of rights under the Convention.
  • The Armed Forces Special Powers Act and the Public Safety Act should be repealed and application of other security laws which adversely affect the work and safety of human rights defenders should be reviewed.
  • The functioning of the National Human Rights Commission should be reviewed with a view to strengthening the Commission by, inter alia: broadening the selection criteria for the appointment of the Chairperson; diversifying the composition of the Commission; extending the one-year limitation clause; establishing an independent committee in charge of investigating complaints filed; elevating the status of the human rights defenders focal point by appointing a Commissioner. The Protection of Human Rights Act should be amended as necessary in full and meaningful consultation with civil society.
  • State Human Rights Commissions should be established in states where such commissions are not yet in existence without further delay.
  • Central and State Governments should continue collaborating with Special Procedures of the Human Rights Council, including by extending invitations for country visits.

To National and existing State Human Rights Commissions:

  • The supportive role of the commissions for human rights defenders should be strengthened by inter alia, conducting regular regional visits; meeting human rights defenders in difficulty or at risk; and undertaking trial observations of cases of human rights defenders wherever appropriate.
  • The visibility of the commissions should be ensured through regular and proactive engagement with civil society and the media.
  • A toll-free 24-hour emergency hotline for human rights defenders should be established.
  • The commissions should monitor the full implementation of recommendations made by UN human rights mechanisms, including Special Procedures mandate-holders, Treaty Bodies, and the Universal Periodic Review.

To the judiciary:

  • In the absence of a witnesses and victims protection Act, the judiciary should take measures to ensure the protection of human rights defenders at risk, witnesses and victims.
  • The judiciary should ensure better utilization of suo motu whenever cases of violation against human rights defenders arise.
  • The importance of the role of human rights defenders in the vibrant and active functioning of the judiciary should be recognised.

To human rights defenders

  • Platforms or networks aimed at protecting defenders and facilitating dialogue should be devised or strengthened.
  • Defenders should better acquaint themselves with the Declaration on Human Rights Defenders.
  • Efforts should be made to continue making full use of United Nations Special Procedures and other international human rights mechanisms when reporting on human rights violations.

To the international community and donors

  • The European Union Guidelines on Human Rights Defenders and local strategies on India should be implemented on a systematic basis.
  • The situation of human rights defenders, in particular the most targeted and vulnerable ones, should be continually monitored, and support for their work should be expressed through, inter alia, interventions before central and state institutions.
  • Efforts should be intensified in empowering civil society.

To all stakeholders:

  • The Declaration on Human Rights Defenders should be translated in main local languages, and disseminated widely.
  • Efforts should be continued to raise civic awareness among the general public, and the spirit of dialogue and cooperation in society fostered.

I will present my full report with final conclusions and recommendations to the UN Human Rights Council in March 2012.
***

ENDS

Margaret Sekaggya, a lawyer from Uganda, was appointed Special Rapporteur in March 2008 by the UN Human Rights Council. She is independent from any Government and serves in her individual capacity.

See the statement on the OHCHR website:

http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10660&LangID=E

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

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

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

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

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

Waliullah Ahmed Laskar*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Footnotes:

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

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

Posted on 2010-06-04

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