Posts Tagged ‘Civil liberties’

UN envoy asks India to repeal AFSPA and other draconian laws

March 30, 2012

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

 

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

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

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

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

My provisional conclusions are as follows:

A) General comments

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

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

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

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

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

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

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

B) Concerns

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

  1. Use of force by State actors

a) Police

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

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

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

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

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

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

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

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

b) Custodial deaths

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

c) Armed Forces

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

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

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

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

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

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

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

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

d) Death penalty

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

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

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

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

2) Use of force by non-state actors

a) Terrorists, criminals and others

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

b) Communal violence

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

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

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

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

c)  Traditional practices affecting women

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

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

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

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

3) Systemic challenges

a) Justice delayed is justice denied

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

b) Perpetrators receive awards

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

c) Compensation instead of prosecution

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

d) Burden on the victim

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

e) Form over substance  

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

f) Statutory immunities and good faith clause

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

g) Marginalised groups

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

h) Witness and victim protection

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

4. The role of the human rights institutions

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

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

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

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

C) Conclusions

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

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

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

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

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

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

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

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

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

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

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

D) Provisional recommendations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

Urgent Appeal: Assam police harass and threaten a rape victim

February 10, 2011

BARAK HUMAN RIGHTS PROTECTION COMMITTEE

Urgent Appeal No. BHRPC Case No 60/2011/UA/23/210 Dated: 10 February 2011

Dear Friends,

Acting on the information provided by Barak Human Rights Protection Committee (BHRPC), the Asian Human Rights Commission (AHRC) issued the following Urgent Appeal concerning the case of assault of a 24 year-old-girl and her mother by the police in Cachar district, Assam. Please take the suggested actions.

Yours sincerely

Waliullah Ahmed Laskar

Urgent Appeal Desk

Barak Human Rights Protection Committee

Rongpur, Silchar-9, Assam, India

INDIA: Assam police harass and threatened a rape victim

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-024-2011

To take actions please click here

8 February 2011
——————————————————
INDIA: Assam police harass and threatened a rape victim

ISSUES: Violence against woman; rape; assault; police corruption
——————————————————

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from the Barak Human Rights Protection Committee (BHRPC), Assam concerning the case of rape of a 20 year-old-woman by her father-in-law. The victim was raped because she belongs to a poor family and was unable to provide the dowry during the time of her marriage. A complaint was then lodged to the local police station but to-date no action has been taken. Instead, the victim was threatened by the investigating officer to withdraw the complaint.

CASE NARRATIVE:

On December 2009, Mrs. Sonia (name changed) aged about twenty years was married to Mr. Pabitra Das. Sonia’s husband Pabitra does not have any proper source of income for their livelihood. He sells low quality ornaments in remote villages. Sonia’s father-in-law, Mr. Haricharan Das is a widower and works as a teacher in a government school.

Sonia belongs to a poor family and her father Mr. Dondodhar Das could not provide a sufficient dowry during the time of her marriage. Sonia alleged that after four/five months after her marriage, hers husband’s family demanded Rs. 50,000/= and a bicycle as dowry. When Sonia expressed her father’s inability to provide the demanded dowry, the entire husband family gradually started subjecting Sonia to mental and physical harassment. This was perpetrated mainly by Sonia’s father-in-law.

Sonia’s husband, and his unemployed younger brother Mr. Jayanta Das, used to leave home early in the morning everyday in search of work and return around 10pm. Sonia alleged that her father-in-law Haricharan beat her one day in his son’s absence and forced Sonia to have sex with him. This incident left Sonia traumatised. Sonia was at her wit’s end and could not tell anyone out of shame, disgust and fear. She has since been compelled to have sex with her father-in-law on several occasions.

The conditions became unbearable for Sonia that finally she told everything to her husband. Pabitra, instead of trusting his wife, hurled verbal abuse at her and accused Sonia of trying to malign his father and his relatives with the intension of breaking up the family. Sonia could no longer endure the agony and anguish and returned to her maternal home on July 2010. Sonia told her father and mother about the demand of dowry, ill-treatment and cruelty towards her but did not tell them of rape and molestation by her father-in-law.

Sonia’s father Dondodhar thought it was a normal wear and tear of conjugal life or at most a little ill-treatment for dowry. Dondodhar insisted that his daughter reconcile with her husband and their family so that She could start a new life, forgetting the past incidents. Dondodhar along with other village elders went to Haricharan’s house to discuss all matters other than the sexual harassment of his daughter Sonia. Sonia was then told by her father to stay with her husband and their family after the discussion.

It is reported that on September 2010 Haricharan with his whole family moved to Dhoomkar village from Salimabad. The place was new for Sonia and she did not know anyone. At this juncture, Haricharan once again started sexually assaulting his daughter-in-law. When Sonia could no longer bear to keep quiet and suffer in silence she told her husband on 29 November 2010. Pabitra became furious as he was already convinced of his father’s innocence and started beating Sonia. Sonia’s father-in-law and brother-in-law, Jayanta, joined him in assaulting Sonia.

Sonia alleged that the three men were trying to kill her and later that night at around 10 pm managed to escape the house. The father and sons tried to follow Sonia but could not trace her in the darkness. Mr. Somorendra Deb, resident of Dhoomkar and other passers-by including Ms. Ratna Das, President of Korkori Gaon Panchayat and Mr. Narat Lal Das, Vice-president of Korkori Gaon Panchayat found Sonia, gave her shelter, and informed the local police.

It is reported that on 30 November 2010 Sonia lodged a complaint to the Kalain police outpost but it was not registered in the police station. Therefore, Sonia filed two other complaints in the Court of Chief Judicial Magistrate (CJM), Silchar on 6 December 2010. The CJM clubbed both the complaints together and directed the Katigorah Police Station (PS) to register a First Information Report (FIR) and investigate the case.

Thereafter, an FIR was registered at Katigorah PS as Case no. 666/10 under Sections 376 (punishment for rape) and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the Indian Penal Code, 1860 (IPC) against Sonia’s husband Pabitra, brother-in-law Jayanta and Haricharan, father-in-law. Mr. Prabhat Saikia, a Sub-Inspector of Police and In-Charge of Kalain police outpost was made the Investigating Officer (IO) of the case.

However, the police did not take any actions to investigate the case based on the FIR. Instead, the IO met the victim, Sonia, and pressured her to withdraw the complaint and to settle the matter amicably. Sonia alleged that the IO threatened to render her family beggars and homeless if she continued to pursue the case in courts or any other legal forums.

On 30 December 2010, Sonia wrote a written complaint to the district Superintendent of Police (SP) about the misconduct of the IO and requested the SP to intervene in investigating her case. There has been no response or action from the SP as yet on Sonia’s complaint.

SUGGESTED ACTION:
Please write letters to the authorities mentioned below expressing your concern in this case and urge them to ensure legal redress to the victim.

The AHRC is writing separate letter of concern to the UN Special Rapporteur on violence against women, its causes and consequences, calling for an intervention in this case.

To take actions please click here

SAMPLE LETTER:

Dear __________,

INDIA: The rape of a 20-year-old woman must be investigated and prosecuted

Name of victim: Mrs. Sonia (name changed) aged about 20 years, resident of village Korkori Part-III, Kalain under Katigorah Police Station, Cachar district, Assam state
Names of alleged perpetrators:
1. Mr. Pabitra Das, Sonia’s husband
2. Mr. Haricharan Das, Sonia’s father-in-law
3. Mr. Jayanta Das, Sonia’s brother-in-law
All residents of Dhoomkar village under the jurisdiction of Katigorah Police Station, Cachar district
Date of incident: Between July – November 2010
Place of incident: Dhoomkar village, Kalain under Katigorah Police Station, Cachar district

I am writing to voice my deep concern regarding the rape case of Sonia (name changed), a 20 year old woman by her father-in-law. I am informed that Sonia was raped because she belongs to a poor family and her family could not provide the dowry during the time of her marriage. Sonia was married on December 2009 to Mr. Pabitra Das. Sonia alleged that after four to five months after her marriage her husband’s family demanded Rs.50,000 and a bicycle as dowry. When Sonia expressed her father’s inability to provide the demanded dowry, the entire husband family gradually started subjecting Sonia to mental and physical harassment. This was being perpetrated mainly by Sonia’s father-in-law.

I am informed that Sonia’s husband Pabitra sells low quality ornaments in remote villages to earn money. Pabitra and his younger brother Mr. Jayanta Das used to leave home early in the morning and return around 10pm everyday in search of a job. Sonia’s father-in-law Mr. Haricharan Das is a widower and works as a teacher in a government school. Sonia alleged that her father-in-law beat her one day on his son’s absence and force her in sexual submission. This incident left Sonia shattered at the core and traumatised. Since then Sonia was at her wit’s end and could not tell anyone out of shame, disgust and fear and was compelled to have sex with her father-in-law several times.

I am informed that the conditions became unbearable for Sonia that she told everything to her husband. Pabitra, instead of trusting his wife, he verbally abused her and accused Sonia of trying to malign his father and relatives with the intension of breaking up the family. Sonia could no longer endure the agony and anguish and returned to her maternal home on July 2010. Sonia told her father and mother about the demand of dowry, ill-treatment and cruelty towards her but did not tell them of rape and molestation by her father-in-law. Sonia’s father Dondodhar thought it was a normal wear and tear of conjugal life or at most a little ill-treatment for dowry.

I am informed that Dondodhar insisted on his daughter Sonia to reconcile with her husband and their family so that Sonia can start a new life forgetting the past incidents. Dondodhar along with other village elders went to Haricharan’s house and discuss all matters other than the sexual harassment of his daughter Sonia. Sonia was then told by her father to stay with her husband and their family after the discussion.

I am informed that on September 2010 Haricharan with his whole family has moved to Dhoomkar village from Salimabad. The place was new for Sonia and the neighbours were unacquainted. At this juncture, Haricharan once again started sexually assaulting his daughter-in-law Sonia. When Sonia could no longer bear to keep quiet and suffer, she told her husband on 29 November 2010. Pabitra, Sonia’s husband, got furious as he was already convinced by his father and started beating Sonia. Pabitra’s father Haricharan and his younger brother Jayanta joined him in assaulting Sonia.

Sonia alleged that she was trying to kill by father-sons trio during an assault. Sonia managed to escape her husband’s house the same night around 10pm. The father-sons trio followed Sonia but could not trace her in the darkness. Mr. Somorendra Deb, resident of Dhoomkar and other passers-by including Ms. Ratna Das, President of Korkori Gaon Panchayat and Mr. Narat Lal Das, Vice-president of Korkori Gaon Panchayat found Sonia, gave her shelter, and informed the local police.

I am informed that on 30 November 2010 Sonia lodged a complaint to the Kalain police outpost but it was not registered in the police station. Therefore, Sonia filed two other complaints in the Court of Chief Judicial Magistrate (CJM), Silchar on 6 December 2010. The CJM clubbed both the complaints together and directed the Katigorah Police Station (PS) to register a First Information Report (FIR) and investigate the case.

I am informed that thereafter an FIR was registered at Katigorah PS as Case no. 666/10 under Sections 376 (punishment for rape) and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the Indian Penal Code, 1860 (IPC) against Sonia’s husband Pabitra, brother-in-law Jayanta and Haricharan, father-in-law. Mr. Prabhat Saikia, a Sub-Inspector of Police and In-Charge of Kalain police outpost was made the Investigating Officer (IO) of the case.

However, the police did not take any action to investigate the case based on the FIR. Instead, the IO met the victim, Sonia, and pressured her to withdraw the complaint and to settle the matter amicably. Sonia alleged that the IO threatened to render her family beggars and homeless if she continued to pursue the case in courts or any other legal forums.

I am informed that again on 30 December 2010, Sonia wrote a written complaint to the district Superintendent of Police (SP) about the misconduct of the IO and to seek his intervention in investigating her case. There has been no response or action from the SP as yet on Sonia’s complaint.

I therefore request you to intervene in this case to ensure the following:

1. The police must immediately record the statement of the victim;
2. Should there be any request from the victim for protection against further threat, the police must provide the same to the victim;
3. The statements of other witnesses in the incident are to be recorded by the police without any further delay;
4. The suspicious conduct of the police officer who is in charge of the investigation of the case must be investigated by a superior officer and if the inquiry finds that the officer is at fault, he must be punished;
5. A female officer must investigate the case

Yours sincerely,

—————-
PLEASE SEND YOUR LETTERS TO:

1. Mr. Justice S. Barman Roy
Chairperson
Assam Human Rights Commission
STATFED H.O. Building, GMC Road
Bhangagarh, Guwahati
Pin – 781005, Assam
INDIA
Fax: +91 361 2529450, 2527076
Email: hrca@sancharnet.in

2. Mrs. Krishna Tirath
Minister of State
Ministry of Women and Child Development
Shastri Bhavan, Jeevandeep Building
New Delhi
INDIA
Fax: +91 11 23074052, 23074053, 23074054

3. Mr. Tarun Gogoi
Chief Minister of Assam
Assam Secretariat, Dispur
Guwahati-6, Assam
INDIA
Fax: +91 361 2262069

4. Chief Secretary
Assam Secretariat, Dispur
Guwahati-6, Assam
INDIA
Fax: +91 361 2260900
Email: psccy_it@assam.nic.in

5. Director General of Police
Assam, Ulubari
Guwahati-7, Assam
INDIA

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

To take actions please click here

Posted on 2011-02-08

AHRC URL: http://www.ahrchk.net/ua/mainfile.php/2011/3649/

URGENT APPEAL: Police assaulted mother and daughter during mid-night at home

February 1, 2011

BARAK HUMAN RIGHTS PROTECTION COMMITTEE

Urgent Appeal No. BHRPC Case No 59/2010/UA/23/210 Dated: 01 February 2011

Dear Friends,

Acting on the information provided by Barak Human Rights Protection Committee (BHRPC), the Asian Human Rights Commission (AHRC) issued the following Urgent Appeal concerning the case of assault of a 24 year-old-girl and her mother by the police in Cachar district, Assam. Please take the suggested actions.

Yours sincerely

Waliullah Ahmed Laskar

Urgent Appeal Desk

Barak Human Rights Protection Committee

Rongpur, Silchar-9, Assam, India

Download the Urgent Appeal

INDIA: Assam police assaulted mother and daughter during mid-night at home

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-019-2011

Click here to support the appeal

1 February 2011
——————————————————
INDIA: Assam police assaulted mother and daughter during mid-night at home

ISSUES: Assault; Threats; Witness protection; Police inaction and negligence
——————————————————
Dear friends,

The Asian Human Rights Commission (AHRC) has received information from the Barak Human Rights Protection Committee (BHRPC), Assam concerning the case of assault of a 24 year-old-girl and her mother by the police in Cachar district, Assam. This incident occurred at midnight when the police were searching for a fugitive, Mr. Hussain Ahmed Laskar. Police then threatened the victims when a written complaint was filed with the local police station. Insofar, the local police have taken no actions on the victim’s complaint.

CASE NARRATIVE:

At midnight on 15 December 2010, a team of police officers knocked on the door of Ms. Hasina Begum Laskar’s house while they were sleeping. Hasina, aged about 24 years, lives with her 60-year-old mother, Mrs. Alfatun Nessa Laskar. Her father has passed away and the family lives at Barjatrapur Village under the jurisdiction of Borkhola Police Station in Cachar district of Assam.

Hasina asked the persons to identify themselves and the reason for the visit. The officers told her that they were from the police and wanted to enquire about a fugitive name Mr. Hussain Ahmed Laskar. Hasina replied that she did not know the person. The police officers then demanded that Hasina open the door and when she refused they entered the house forcefully after breaking open the door.

It is reported that Sub-Inspector Mr. Ibrahim Khalilullah Kabir of Borkhola Police Station in Cachar district of Assam state led the police officers. Ibrahim is also the Officer-in-Charge of Bhangarpar Police Out-Post of Borkhola Police Station. Hasina alleges that the police officer was accompanied by his fellow constables and not any woman police officer, as is required by the law.

Officer, Ibrahim, asked Hasina a few questions about the fugitive Hussain before suddenly grabbing Hasina’s hand. Hasina claims that the officer pulled her closer as if he had intentions to sexually harass her. Hasina resisted the officer’s advances and that resulted in a scuffle. Hasina then started screaming for help. Upon hearing Hasina, her mother woke up. When the mother came into the room where Hasina and the officer were struggling she tried to stand in between the officer and her daughter, in order to protect her daughter and free her from the officer. The officers infuriated by the resistance of the two women, started assaulting them. Hasina’s mother vomited at the time, after suffering injuries from the assault and undoubtedly from shock due to fear. Then she fainted and fell to the ground.

It is reported that Hasina’s neighbours started gathering near the house after hearing the cries of Hasina and her mother. The police left the house after seeing the people. Hasina’s neighbours dialed an emergency helpline number 108 (free medical services provided by the government) and explained the incidents briefly. An ambulance came and picked-up Hasina’s mother and took her to the Silchar Medical College Hospital. Hasina’s mother was later discharged from the hospital but is still under medication.

On 18 December 2010, Hasina lodged a written complaint with the Superintendent of Police (SP) of Borkhola Police Station, Cachar district, Assam. However, following this, Hasina alleged that an unknown person called her mobile and threatened that if she proceeded against the police officer, she would suffer grave consequences. Again on the following day, the day Hasina lodged a complaint to the SP, she received another called from unknown person at 11.03am on her mobile and the same threat was repeated. Hasina received both incoming call on her mobile from the same number +91 9859628761. To-date, the SP has taken no action on Hasina’s complaint.

SUGGESTED ACTION:
Please write letters to the authorities mentioned below, in particular to the Home Minister of Assam, expressing your concern in the case. The statements of the victims and witnesses must be recorded without any delay. The AHRC is writing separate letter of concern to the UN Special Rapporteur on violence against women calling for an intervention in the case.

To support this appeal, please click here

SAMPLE LETTER:

Dear __________,

INDIA: Assault of a 24 years old girl and her mother must be investigated

Name of victim: Ms. Hasina Begum Laskar, resident of Village Barjatrapur under the jurisdiction of Borkhola Police Station in Cachar district of Assam state
Names of alleged perpetrators: Mr. Ibrahim Khalilullah Kabir, Sub-Inspector of Borkhola Police Station and his fellow constables
Date of incident: 15 December 2010
Place of incident: Barjatrapur Village, Cachar district, Assam state

I am writing to voice my deep concern regarding the assault of a 24-year-old girl and her mother. I am informed that on 15 December 2010, at midnight, a team of police officers knocked on the door of Ms. Hasina Begum Laskar’s house while they were sleeping. Hasina lives with her 60-year-old mother, Mrs. Alfatun Nessa Laskar. Her father has passed away and the family lives at Barjatrapur Village under the jurisdiction of Borkhola Police Station in Cachar district of Assam.

I am informed that Hasina woke up hearing the knocking at the door asked the persons to identify and for why they are at their home. The officers told her that they were from the police and wanted to enquire about a fugitive name Mr. Hussain Ahmed Laskar. Hasina replied that she did not know the person. The police officers then demanded that Hasina open the door and when she refused they entered the house forcefully after breaking open the door.

It is reported that Sub-Inspector Mr. Ibrahim Khalilullah Kabir of Borkhola Police Station in Cachar district of Assam state led the police officers. Ibrahim is also the Officer-in-Charge of Bhangarpar Police Out-Post of Borkhola Police Station. Hasina alleges that the police officer was accompanied by his fellow constables and not any woman police officer, as is required by the law.

I am informed that officer, Ibrahim, asked Hasina a few questions about the fugitive Hussain before suddenly grabbing Hasina’s hand. Hasina claims that the officer pulled her closer as if he had intentions to sexually harass her. Hasina resisted the officer’s advances and that resulted in a scuffle. Hasina then started screaming for help. Upon hearing Hasina, her mother woke up. When the mother came into the room where Hasina and the officer were struggling she tried to stand in between the officer and her daughter, in order to protect her daughter and free her from the officer. The officers infuriated by the resistance of the two women, started assaulting them. Hasina’s mother vomited at the time, after suffering injuries from the assault and undoubtedly from shock due to fear. Then she fainted and fell to the ground.

It is reported that Hasina’s neighbours started gathering near the house after hearing the cry from Hasina and her mother. The police left the house after seeing the people. Hasina’s neighbours dialed an emergency helpline number 108 (free medical services provided by the government) and explained the incidents briefly. An ambulance came and picked-up Hasina’s mother and took her to the Silchar Medical College Hospital. Hasina’s mother was later discharged from the hospital but is still under medication.

On 18 December 2010, Hasina lodged a written complaint with the Superintendent of Police (SP) of Borkhola Police Station, Cachar district, Assam. However, following this, Hasina alleged that an unknown person called her mobile and threatened that if she proceeded against the police officer, she would suffer grave consequences. Again on the following day, the day Hasina lodged a complaint to the SP, she received another called from unknown person at 11.03am on her mobile and the same threat was repeated. Hasina received both incoming call on her mobile from the same number +91 9859628761. To-date, the SP has taken no action on Hasina’s complaint.

I ask for your immediate intervention in order to ensure that an investigation is carried out into this incident.

Yours sincerely,

—————-
PLEASE SEND YOUR LETTERS TO:

1. Mr. Justice S. Barman Roy
Chairperson
Assam Human Rights Commission
STATFED H.O. Building, GMC Road
Bhangagarh, Guwahati
Pin – 781005, Assam
INDIA
Fax: +91 361 2529450, 2527076
Email: hrca@sancharnet.in

2. Mr. P.K. Bhuyan, APS
District Superintendent of Police
Borkhola Police Station
Cachar district, Assam
INDIA

3. Mrs. Krishna Tirath
Minister of State
Ministry of Women and Child Development
Shastri Bhavan, Jeevandeep Building
New Delhi
INDIA
Fax: +91 11 23074052, 23074053, 23074054

4. Mr. Tarun Gogoi
Chief Minister of Assam
Assam Secretariat, Dispur
Guwahati-6, Assam
INDIA
Fax: +91 361 2262069

5. Chief Secretary
Assam Secretariat, Dispur
Guwahati-6, Assam
INDIA
Fax: +91 361 2260900
Email: psccy_it@assam.nic.in

6. Director General of Police
Assam, Ulubari
Guwahati-7, Assam
INDIA

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Click here to take actions

Posted on 2011-02-01

See the appeal at its original location

Urgent Appeal: Woman forced to quit job and denied justice after sexual harassment in Assam

January 25, 2011

BARAK HUMAN RIGHTS PROTECTION COMMITTEE

Urgent Appeal No. BHRPC Case No 58/2010/UA/23/210 Dated: 25 January 2010

Dear Friends,

Acting on the information provided by Barak Human Rights Protection Committee (BHRPC), the Asian Human Rights Commission (AHRC) issued the following Urgent Appeal. Please take the suggested actions.

Yours

Waliullah Ahmed Laskar

Urgent Appeal Desk

Barak Human Rights Protection Committee

Rongpur, Silchar-9, Assam, India

Click here to send an appeal to the authorities

 

INDIA: Woman forced to quit job and denied justice after sexual harassment

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-011-2011

25 January 2011
——————————————————
INDIA: Woman forced to quit job and denied justice after sexual harassment

ISSUES: Violence against women; Sexual harassment; Police corruption
——————————————————

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from the Barak Human Rights Protection Committee (BHRPC) concerning the case of Ms. Lara (name changed) a victim of sexual harassment from Assam state. It is reported that the victim had to resign from her job since her superior colleagues tried to sexually molest her. On the day of her resignation, the suspected officers tried to rape the victim at their office. The police, despite having registered a case against the suspects are now demanding the victim to forgive the suspects and settle the case.

CASE DETAILS:

It is reported that on 2 December 2010 at about 2.30pm, Lara’s two senior colleagues, Mr. Sandip Sarkar and Mr. Rajeeb Nath, assaulted, molested and attempted to rape Lara at the office of her company. Lara worked as an office assistant and a computer operator at Rose Valley Chain Marketing System Ltd., at Bhaga Branch in Assam state. The incident happened at the regional office of the company, where she was asked to report by her seniors. The company where Lara was employed is a subsidiary of Rose Valley Group with Registered Head Office at RGM-25/3010, Raghunathpur, VIP Road, Kolkata – 700059, West Bengal.

Sarkar is the Assistant Regional Manager at the regional office at Silchar, Assam state. Sarkar called Lara on 18 November 2009 at about 9pm on her mobile telephone and demanded sexual favours from Lara. Lara refused and requested Sarkar not to use such language with her in the future. Due to this, Lara alleges that Sarkar deliberately transferred her from Aizawl branch, Mizoram state to an office in Bhaga which is nearer to the regional office (about 45 Kilometres from Silchar).

Lara alleges that Sarkar then repeatedly called Lara and continued using unsolicited and sexually implicit language in the conversations, despite Lara’s request to stop it. Lara claims that Sarkar also tried requesting Lara’s colleague, Ms. Dolly (name changed), to convince Lara to pay heed to Sarkar’s unsolicited demands. Both Lara and Dolly being subordinate staff were helpless and worse, it was impossible for them to avoid Sarkar’s calls.

On one occasion Sarkar asked Lara and Dolly to come at Silchar Branch at 4pm. Lara and Dolly informed Sarkar that the last bus from Silchar to Bhaga stops at 4pm. Sarkar then offered Lara and Dolly to stay at a hotel at Silchar. However, they refused to travel to Silchar on that occasion.

Both Lara and Dolly complained to the Senior Marketing Officer Mr. Mrinal Kanti Dutta about the harassment to which Sarkar subjected them to. Dutta enquired into the matter. Instead of taking action against Sarkar, Dutta and the vigilance officer of the company requested Lara and Dolly to forgive Sarkar for the sake of the company’s name and goodwill.

Lara alleges that due to the complaint, Sarkar withheld her salary increment by misusing his senior position in the company. It is alleged that soon another senior colleague, Mr. Rajeeb Nath, became Sarkar’s accomplice in his misadventures against Lara. Nath contacted Lara and informed her that her pending salary increment would be released only if Lara agreed to Sarkar’s unsolicited requests for sexual gratification. Nath also informed Lara that she would be posted to her hometown Aizawl branch should she comply. Lara once again refused to the demands. Sarkar and Nath continued harassing Lara regularly over the mobile telephone continuously then on.

The situation gradually became so unbearable to Lara that she decided to resign. Lara submitted her resignation letter on 2 November 2010 to Mr. Jyoti Prasad Mohan, the Regional Manager, requesting the company to relieve her from the job on 30 November 2010. The same day, Lara went to the regional office at Silchar for the final settlement of her salary and other dues including the amount due to her from the Employees’ Provident Fund. Lara reached the regional office at Silchar by noon and found the Regional Manager not at the office.

Sarkar was in-charge of the regional office in the absence of the Regional Manager. It is alleged that Sarkar intentionally kept Lara waiting outside his cabin until 2.30pm. When Lara entered the cabin and took a seat, Sarkar called Nath over his extension to visit him. Nath came to the room immediately. Thereafter, both Sarkar and Nath asked Lara to stay in a hotel and have sex with them. They also told Lara that all her problems would be resolved if she obliged.

Lara sternly rejected the proposal and stood up from the chair. Suddenly, both Sarkar and Nath jumped over Lara and assaulted her physically. Both tried to overpower Lara and rape her then and there. Lara gathered strength and started shouting for help. Other colleagues in the office assembled near the room after hearing Lara shouting for help. However, Sarkar and Nath managed to escape from the office. Lara alleges that Sarkar was vigorously trying to remove her shirt. While they escaped, Sarkar snatched Lara’s gold chain that she was wearing. In the attempt to snatch the chain, Sarkar tore off Lara’s shirt. Lara alleges that the chain is worth Rs. 15,000.00.

Immediately after the incident, Lara filed a complaint at the Vairangte Police Station in Kolasib district, Mizoram state. The officer-in-charge (OC) forwarded the complaint to the Silchar Sadar Police Station on 3 December 2010. It was reported that on 4 December 2010 the OC of Silchar Sadar Police Station registered a case, number 2254 under Sections 342 (punishment for wrongful confinement), 354 (assault or criminal force to woman) and 427 (mischief causing damage) read with Section 34 (criminal conspiracy) of the Indian Penal Code, 1860 (IPC) against Sarkar and Nath.

It is also reported that Mr. Puia, Sub-Inspector of police is the Investigating Officer (IO) in the case. Lara alleges that the IO did not show any interest in investigating the case. Instead, the IO made several calls to Lara from various telephones asking her whether she wanted to rejoin the company or would join any other work. The IO expressed his readiness to help Lara in either way. According to Lara, the IO made his last call from the mobile number +91-94352 95037 at 6.27pm on 18 January 2011.

Lara suspects that the police is under the influence of Sarkar and Nath, for which they are using their position in the company. Lara alleges that the case would never be investigated and even today the police have failed to properly record her statement or to question other witnesses to the incident. Lara also fears that she will receive no further protection from her assailants, should they try to hurt her further or threaten her.

SUGGESTED ACTION:
Please send letters to the authorities named below expressing your concern in this case and urge them to ensure legal redress to the victim.

The AHRC is also sending a separate letter to the UN Special Rapporteur on violence against women, its causes and consequences, calling for an intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________,

INDIA: The molestation and attempted to rape of a working woman must be investigated

Name of victim: Ms. Lara (name changed), former employee of Rose Valley Chain Marketing System Ltd., Bhaga Branch in Assam state
Name of alleged perpetrators:
1. Mr. Sandip Sarkar, Assistant Regional Manager, Rose Valley Chain Marketing System Ltd., Silchar, Assam state
2. Mr. Rajeeb Nath, Officer, Rose Valley Chain Marketing System Ltd., Silchar, Assam state
Date of incident: 02 December 2010
Place of incident: Regional office of Rose Valley Chain Marketing System Ltd. at Silchar, Assam

I am writing to express my concern about the case of sexual molestation and attempted rape reported to me, wherein it is alleged that the investigating officer is not showing any interest to investigate the case properly. I am informed that the accused in the case sexually molested and assaulted the victim in the case, Lara, on 2 November 2010 at the regional office of the company where she once worked.

The victim in the case, Lara, worked as an office assistant and a computer operator at Rose Valley Chain Marketing System Ltd. at Bhaga Branch of Assam state. The company is a subsidiary of Rose Valley Group of Companies with Registered Head Office at RGM-25/3010, Raghunathpur, VIP Road, Kolkata – 700059, West Bengal.

I am informed that the main suspect in the case is Mr. Sandip Sarkar, an Assistant Regional Manager of the company stationed at the regional office in Silchar, Assam state. I am informed that Lara is accusing Sarkar that he had made several unsuccessful attempts to lure Lara into an illegal sexual relationship with him. For this, it is alleged that Sarkar misused his position at the office as an officer superior to Lara. I am informed that Sarkar transferred Lara to an office closer to the regional office where Sarkar is working. Lara also alleged that Sarkar had an accomplice in the crime, which is Mr. Rajeeb Nath, who is also a senior staff member of the same company. Lara alleges that on 18 November 2009 at about 9pm Sarkar contacted Lara over her mobile telephone and demanded sexual favours. I am informed that Lara refused outright and requested Sarkar not to use such language with her in the future.

I am informed that Lara’s transfer from Aizawl branch, Mizoram state to Bhaga was a deleberate action by Sarkar. I am informed that Sarkar then repeatedly called Lara over her telephone and demanded her to sleep with Sarkar. It is alleged that Sarkar even asked another female colleague, Ms. Dolly (name changed), to convince Lara that she should pay heed to Sarkar’s demands for sexual favours. I am informed that later Sarkar started receiving help from Nath to contact Lara and threaten her that should she continue to refuse Sarkar’s request she would have a tough time at the job.

I am informed that both Lara and Dolly complained to the Senior Marketing Officer, Mr. Mrinal Kanti Dutta, about the harassment against which there was an inquiry. However, the officer refused to act against Sarkar and Nath. Instead, the officer after the inquiry requested Lara and Dolly to forgive Sarkar for the sake of the company’s name and goodwill.

I am informed that Sarkar thereafter refused to pay salary increments to Lara. Dejected and abused, Lara resigned from the job on 2 November 2010. On the same day, Lara went to the regional office at Silchar for the final settlement of her salary and other dues including the Employees Provident Fund. It is reported that it is when Lara was summoned to Sarkar’s room on that day that Sarkar and Nath tried to rape Lara inside the office room. I am informed that other staffs members present in the office are witnesses to the event, at least to the extent that they had gathered around the room in which Lara was molested when they heard her cries for help. It is also reported that Sarkar, while he fled from the room snatched Lara’s chain worth Rs. 15,000.00.

I am informed that the complaint filed by Lara immediately after the incident at the Vairangte Police Station in Kolasib district, Mizoram was forwarded to Silchar Sadar Police Station on 3 December 2010. It was reported that on 4 December 2010 the OC of Silchar Sadar Police Station registered a case number 2254 under Sections 342 (punishment for wrongful confinement), 354 (assault or criminal force to woman) and 427 (mischief causing damage) read with section 34 (criminal conspiracy) of the Indian Penal Code, 1860 (IPC) against Sarkar and Nath.

However, instead of investigating the case, the OC is trying to persuade Lara to settle the matter. I am informed that Lara is now certain that her case would not be investigated and that Sarkar and Nath are using their influence and money to prevent the police from taking any action in the case. It is also reported that Lara is afraid that Sarkar or Nath will hurt Lara and that the police will provide no protection to her should something like that happen.

I am also informed that in a case decided by the Supreme Court of India, there are strict laws to be complied by the employers as well as the government to ensure safety of women from sexual harassment in places of work. Quite obviously Lara’s case is a direct contradiction of the Supreme Court’s directives in the Vishaka case.

I therefore request you to intervene in this case to ensure the following:

1. The police must immediately record the statement of the victim;
2. Should there be any request from the victim for protection against further threat, the police must provide the same to the victim;
3. The statements of other witnesses in the incident are to be recorded by the police without any further delay;
4. The suspicious conduct of the police officer who is in charge of the investigation of the case must be investigated by a superior officer and if the inquiry finds that the officer is at fault, he must be punished;
5. A female officer must investigate the case

Yours sincerely,

—————-
PLEASE SEND YOUR LETTERS TO:

1. Mr. Tarun Gogoi
Chief Minister of Assam
Assam Secretariat, Dispur
Guwahati-6, Assam
INDIA
Fax: +91 361 2262069

2. Chief Secretary
Assam Secretariat, Dispur
Guwahati-6, Assam
INDIA
Fax: +91 361 2260900
Email: psccy_it@assam.nic.in

3. Mr. G M Srivastava
Director General of Police
Assam, Ulubari
Guwahati-7, Assam
INDIA

4. Mr. PU Lalthanhawla
Chief Minister of Mizoram
A/14, Zarkawt, Aizawl, Mizoram
INDIA
Fax: +91 389 2322245

5. Mr. R. Lalzirliana
Home Minister of Mizoram
Armed Veng “N”, Aizawl
Mizoram
INDIA

6. Mrs. Krishna Tirath
Minister of State
Ministry of Women and Child Development
Shastri Bhavan, Jeevandeep Building
New Delhi
INDIA
Fax: +91 11 24654849, 24654667, 24616466

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Send an appeal

Posted on 2011-01-25

A working woman harassed, molested and forced to quit her job and then denied justice

January 18, 2011


Download the complete report

A working woman was harassed sexually in work place by her senior colleagues in Assam, India. The victim, a computer operator of a private company, was subjected to a prolonged harassment, molestation and attempted rape. No actions were taken on her complaint by the higher officials of the company. The accused used their positions to make sure that she submitted herself to them and never complained against them. The situation became unbearable and she was compelled to quit the job. The company, however, did not pay her dues. A criminal case was registered by the police but no visible actions were taken. There is strong apprehension that justice would be denied and she would be subjected to further harassment by police.

Identification of the alleged victim(s):

Name: Ms. Esther Vanlalruati

Address: Village: Hospital Veng,

Police Station: Darlawn

District: Aizwal

Sate: Mizoram, India

Identification of the alleged perpetrators of the violation;

Name: 1. Mr. Sandip Sarkar

Assistant Regional Manager

2. Mr. Rajeeb Nath

Address: Regional Office

Rose Valley Chain Marketing System Limited

Shyama Prasad Road,

Shillongpatti, Silchar

Assam, India

A Subsidiary of Rose Valley Group of Companies with Registered  and Head Office at RGM-25/3010, Raghunathpur, VIP Road, Kolkata – 700059, West Bengal, India

Name: 3. Mr. Puiya

Designation: Sub Inspector of Police

Address: Silchar Sadar Police Station

Cachar, Assam, India

Date and place of incident:

Date: From 18 November 2009 at 09:00 pm still continuing

Place: Aizwal in Mizoram, Bhaga and Silchar in Assam, India

A detailed description of the circumstances of the incident in which the alleged violation occurred:

According to information received by Barak Human Rights Protection Committee (BHRPC), Ms. Esther Vanlalruati of village Hospital Veng under police station Darlawn in the district of Aizwal in Mizoram state, had been working as office assistant and computer operator in a company named Rose Valley Chain Marketing System Ltd, a subsidiary of Rose Valley Group of Companies with Registered and Head Office at RGM-25/3010, Raghunathpur, VIP Road, Kolkata – 700059, West Bengal, since December 2007. At first she was working at Aizwal Branch (which situates in Mizoram state of North East India). At that time, the Assistant Regional Manager Mr. Sandip Sarkar from regional office at Shyama Prasad Road, Shillongpatti, Silchar in Assam used to call Ms. Vanlalruati over the telephone often and would use sexually coloured language. In the like manner, he called her on 18 November 2009 at 09:00 pm and this time he directly demanded her sexual favours. But she refused outright and requested him never to use such language with her in future.

Mr. Sandip Sarkar, however, procured transfer of Ms. Vanlalruati to Bhaga Branch which is nearer to the regional office at Silchar (about 45 kms). Mr. Sarkar increased the frequency of his call to her and continued using unsolicited and sexually coloured languages including direct demand for sexual favours. Moreover, he started calling her friend and colleague Ms. Hellen Lalramnuami and would request her to influence Ms Vanlalruati into sexual submission to him.  It was impossible for them to avoid his call because he was their boss.

Another day Mr. Sarkar asked them to come at Silchar Branch at 4 pm with intention to make them stay for the night. When they told him that they would not be able to return because plying of buses from Silchar to Bhaga would stop after around 4pm, he offered them to stay at a hotel at Silchar. However, they refused.

Both Ms. Vanlalruati and Ms Lalramnuami complained to the Senior Marketing Member Mr. Mrinal Kanti Dutta about the harassment to which they were subjected by Mr. Sarkar. Mr. Dutta enquired into the matter. Instead of taking actions against the accused, Mr. Dutta and vigilance officer of the company requested the victims to forgive Mr. Sarkar for the sake of the company’s name and fame.

In order to teach a lesson to the victims and pressure them into submission, Mr. Sarkar kept Ms. Vanlalruati’s increment of salary pending by misusing his position. Then another official Mr. Rajeeb Nath also became an accomplice of Mr. Sarkar. Mr. Nath contacted Ms. Vanlalruati and told her that all her increment would be released and she would also be posted at her home town Aizwal provided that she submitted herself to the demand of Mr. Sarkar. But she refused. Since then both Mr. Sarkar and Mr. Nath continued harassing the ladies regularly over the telephone.

The situation gradually became unbearable to Ms. Vanlalruati and she decided to quit the job. She submitted her resignation letter on 02 November, 2010 to Mr. Jyoti Prasad Mohan, the regional manager to be effective from on 30 November, 2010. On 2 December, 2010 she went to the regional office at Silchar for final settlement of her salary and other dues including Employees Provident Fund, Human Resource Assistance etc.

When she reached the regional office at Silchar at around 12 noon, she found the Regional Manager out of station. The main accused Mr. Sandip Sarkar was in charge of the office. Mr. Sarkar intentionally kept her waiting outside his cabin until 2:30 pm. When she entered the cabin and took her seat, he called Mr. Rajeeb Nath over the phone and the latter immediately entered the cabin. Both of them then asked her to stay in a hotel and have sex with them. If she obliged all her problems would be resolved, they told her. Ms. Vanlalruati sternly rejected this proposal and got up from the chair. Suddenly both of them jumped on her and assaulted her physically. They tried to overpower her and rape her then and there. She gathered strength and started shouting. Other office bearers assembled at the noise. Nevertheless, both the accused somehow managed to escape. Ms. Vanlalruati claimed that Mr. Sandip Sarkar was pulling her shirt and while he escaped he took her gold chain worth Rupees 15000/- (fifteen thousand) along with the upper part of her shirt.

Ms. Esther Vanlalruati filed a complaint at Vairengte Police Station (PS) in Kolasib district, Mizoram. The officer in charge (OC) forwarded it to the Silchar Sadar Police Station on 3 December, 2010 and the OC of this PS registered it as Case No. 2254 under sections 342, 354, 427 read with section 34 of the Indian Penal Code, 1860 dated 4 December 2010 against Mr. Sandip Sarkar and Mr. Rajib Nath. Sub Inspector of police Mr. Puia was made the Investigating Officer (IO) of the case. The victim claimed that the IO did not show any interest in investigating the case after only recording the statement of the victim. According to her, he also started annoying them. He made several calls to her from various mobile numbers, but did not want to talk about the case or investigation. He continued to ask her whether she wanted to rejoin the company or she would join any other work. He expressed his readiness to help her in either way. He last made a call from mobile number +919435295037 to Ms. Vanlalruati’s mobile number +9197774782396 at 6.27pm on 18 January 2011. This overzealousness of the officer made the victim suspicious of his motive, who is only interested in getting justice.

Extra-Judicial Killing of Hashmat Ali by Assam Police in His House

January 18, 2011

Extra-Judicial Killing of Hashmat Ali by Assam Police in His House

A daily wage labourer named Hashmat Ali, son of Imam Uddin of Vill. Burunga Part-1 under the Katigorha Police Station in the district of Cachar, Assam was killed by police personnel of Kalain Outpost in the intervening night between 40 April & 1st May’2007. It was not a case of mere shootout but it was a pre-planned action of home invasion. In-charge of Kalain outpost Sub Inspector Sewa Sinha led the invading police team which at about 11-30 pm attacked the house of the deceased and ferociously made their way into the rooms breaking the doors. They started breaking utensils and furniture and abusing, beating and humiliating the inmates of the house including women and children. Being terrified the deceased desperately jumped through the window and ran towards the paddy field. When he was about 200 metres away constable Tapan Hazarika opened fire and shot three rounds. Neighbours of the deceased testified that they heard three times the sound of firing. The deceased died on the spot. Police, without informing the family members, brought him to the Silchar Medical College & Hospital, Silchar. The doctors of SMCH declared him dead. The widow of the deceased was informed in the next day that her husband was getting treatment at SMCH. When she reached the Hospital the performance of autopsy of the body of her husband was complete.

Ikbal Hussain: Fresh victim of extrajudicial execution in Assam

January 10, 2011

Ikbal Hussain: Fresh victim of extrajudicial execution in Assam

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

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

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

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

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

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

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

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

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

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

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

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

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

January 10, 2011

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

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

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

Case Narrative

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

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

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

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

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

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

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

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

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

Additional Information

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

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

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

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

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

Brief Summery of The BHRPC Fact-finding Report of Extra-Judicial Killing of Iskandar Ali of Bidruhipar, Cachar

June 5, 2010

Brief Summery of

The BHRPC Fact-finding Report

of Extra-Judicial Killing of Iskandar Ali of Bidruhipar, Cachar

Reference No.: BHRPC Case No. 58/2010/FR/2010-11 Dated 5 June 2010

Get the pdf version

Assam: Security Personnel Kill an Innocent Person by Firing Indiscriminately at a Market Place in Barak Valley

Personnel of the Central Reserve Police Force (CRPF), a para-military force of the government of India deployed heavily in North Eastern states to provide aid to the state governments in maintaining public order, killed an innocent person on 23 May 2010 by firing without warning and indiscriminately at Panchaboti (known also as Jamalpar), a small market place within the area of Dholai Police Station (PS) in the district of Cachar, Assam, while trying to arrest two other persons reportedly acting on a tip-off. No investigation into the killing is ordered. Police, instead, registered a case against the deceased person incorporating his name in the First Information Report (FIR) filed against the two arrestees. There are fears that post mortem report can also be tempered. Impunity for such frequent extra-judicial killings is taken for granted in this part of India.

After receiving information the Barak Human Rights Protection Committee (BHRPC), a human rights organisation based in Assam, formed a team for finding facts about the incidents. The team visited Bidruhipar, the village where the deceased lived which falls under Sonai PS in Cachar (Assam), spoken with his wife, children, brothers, other relatives and fellow villagers. The team also visited Panchaboti, where the incident occurred and other related areas. They spoke to some eye witnesses and local police officers. The account given here is based on the facts gathered in this way by the BHRPC.

Panchaboti is like a small market place where there are 19/20 shops of various kinds and people from the adjacent villages come for buying or selling household things and for other related purposes. A gathering of 40/50 persons are normally found there. The deceased Iskandar Ali Barbhuiya (aged about 42, son of late Abdul Matlib Barbhuiya) lived at a nearby village Bidruhipar (about 4 km away to the north eastern direction from Panchaboti separated by the river Sonai) under the Sonai PS. He was a small businessman primarily dealing with betel nuts. He would buy row betel nuts from markets and small village firms and sell them after processing. He was the sole earning member of a family of 6 comprising of his wife Monijun Nesa (aged about 38), son Rajib Hussain Barbhuiya (aged about 13) and daughters Jasmin Begum Barbhuiya (aged about 11), Yasmin Begum Barbhuiya (aged about 7) and Najmin Begum Barbhuiya (aged about 4). According to the villagers and the police officials, he was a peace loving person never involved in any crime or immoral acts and he had nothing against him in the police record.

At about 11 pm on the fateful day of 23 May he left his house telling his wife that he was going to the Panchaboti area to collect betel nuts which he would keep at the house of a friend for he intended to visit his sister Champarun Nesa at Krishnapur, Amraghat, though he expressed doubts that he would get time for the visit. He asked his wife not to worry if he did not return that day.

The persons who were present at the time of shooting by the CRPF at Panchaboti state that they heard and saw a group of 11/12 CRPF personnel from A147 Battalion led by Mr Muatoshi Dubichu, Deputy Inspector of Police and in-charge of Shachinpur Camp (Shachinpur comes under Dholai PS), who came there sometime ago, suddenly started firing indiscriminately at about 4.30 pm and people ran helter-skelter in panic. Most of them entered nearby shops and houses and closed the doors. Some of them saw Iskandar running over a small field towards the river Sonai, a tributary of the river Barak. He jumped into the river while CRPF were shooting at him. There was absolutely no provocation of any kind for the CRPF to open fire. The witnesses say that CRPF did not warn the people by any means before starting firing. It was not known at that time what happened to Iskandar. But the CRPF arrested Moniruddin Barbhuiya (aged about 32, son of Abdul Majid Barbhuiya of village Bidruhipar, PS Sonai, Cachar, Assam) and Abdul Khalik (aged about 25, son of Siraj Uddin of village Sundari Part-II, PS Sonai, Cachar, Assam) for whose arrest they came.

The CRPF claimed that they were on a routine patrolling at that time and they observed suspicious behaviour on the part of Moniruddin, Abdul Khalik and Iskandar. They challenged them and when the suspects started running away they opened fire and shot 7 rounds at them. As a result they succeeded in arresting two persons while another (meaning the deceased Iskandar) ran away. They did not know what happened to the later. But they found a country made 9 mm pistol and four pieces of bullets with Moniruddin. According to the CRPF, they are ordinary criminals and did not belong to any organisation. The CRPF handed over the two arrestees to the Palonghat police out post under Dholai PS at about 9 pm that day. Dholai police registered a case against Moniruddin, Abdul Khalik and another (meaning Iskandar but without naming) (vide Dholai PS Case No. 99/2010 dated 23 May 2010) under section 47 of the Arms Act, 1959. On 24 May the Officer-in-Charge (OC) of Dholai PS produced the accused before a magistrate praying for police custody for them which was granted for 7 days. Then they were sent to the judicial custody and at the time of writing this report they are still in jail.

According to the police sources, Moniruddin stated that he is a labourer and worked in Mizoram for a few months. One day in Mizoram when he went to a river to bath there he found a pistol lying there. He picked it up and was trying to sell it. Iskandar is nothing to do with them.

When in the night on 23 May Iskandar did not return home his wife Monijun was not worried and she thought that he had gone to his sister’s house at Krishnapur as she was told. The next day (24 May) Badrul Mia, a neighbour, asked Monijun if she was aware of an incident of firing at Panchaboti the day before where her husband went and whether he returned home or not. She became worried and contacted her sister-in-law at Krishnapur over the phone who told that Moniruddin did not visit her. Then she contacted each and every relatives of her husband but everybody expressed ignorance about the whereabouts of Iskandar. She along with her sister-in-law Sitarun Nesa went to the Sonai PS on 25 May and informed the police in writing that her husband was missing since the day before. It was entered in the General diary of the PS vide GD Entry 601 dated 25 May 2010.

At about 1 pm on 26 May some people of village Sundari Part-II (situated at a distance of about 2 km from Panchaboti) saw a dead body adrift in the river Sonai and informed Kachudaram police out post under Sonai PS. Police, first from the out post and then from the PS, came at about 3 pm and send the body to the Silchar Medical College and Hospital, Silchar for autopsy. At about 11 pm on 27 May the police handed over the body to Monijun. His relatives and fellow villagers performed the last rites at about 2.30 pm.

The persons who performed the pre-funeral ritual bathing of the body state that they saw two holes caused by bullets on the body; one on the waist and the other on the left side of the neck. Report of the autopsy has not been yet provided to the family. Monijun and other villagers fear that perhaps they want to change the report and that is why they are not giving it to her. The BHRPC is trying to access the report.

The local people did not believe the CRPF story. They say that it is possible that Moniruddin and Abdul Khalik were trying to sell the pistol. Probably they fixed the place and time for transaction with the purported buyer to complete the sale at Panchaboti on 23 May. According to them, it is not a case of routine patrol as the CRPF claim but it is probable that the CRPF somehow came to know of the transaction and accordingly they came to nab them red handed. But lack of professionalism and respect for the rights of the general citizens provoked them to open fire when they saw the suspects and it claimed an innocent life in the form of Iskandar. They emphatically say that Iskandar had nothing whatsoever to do with Moniruddin and his activities. He is the victim of carelessness of the security forces for the lives of innocent people. The story which is being told by the CRPF accusing Iskandar of being a partner or accomplice or involved with any other way with Moniruddin or his pistol is a typical attempt of covering up their guilt of killing him and it is gross injustice to the unfortunate soul of the deceased and his wife and children to stigmatise them in this way.

Mr. Kutub Ahmed Mazumder, a member of Assam Legislative Assembly representing the Sonai Constituency also told the BHRPC that he knew Iskandar personally and he is a very good person. He visited the widow on 30 May.

Hundreds of people of the neighbouring villages gathered on 28 May at Hatikhal, a convenient meeting place for the people living at neighbouring villages, and held a condolence meeting which was presided over by Nazrul Islam Ahmed, vice president of Sonai Anchalik Panchayat (Anchalik Panchayat is the middle layer of the three layer local government system consisting of Gaon Panchayat, Anchalik Panchayat and Zila Parishad) where resolutions passed; 1.Condemning the killing of Iskandar terming it as an intentional murder of a law-abiding and peace loving citizen by power fuddled unscrupulous security forces, 2. Condoling the family for their loss, and 3. Demanding compensation and prosecution of the responsible CRPF personnel.

Monijun filed a complaint before the Chief Judicial Magistrate, Cachar on 29 May praying for directing the police for proper investigation of the murder under section 302 of the Indian Penal Code, 1860. The complaint was forwarded to the Sonai PS and was registered as an FIR vide Sonai PS Case No. 126/10 dated 4 May 2010.

The BHRPC also wrote to the authorities including the president, prime minister of India and the chairpersons of the National Human Rights Commission.

Report prepared by

Waliullah Ahmed Laskar

For BHRPC

On 5 June 2010

At Guwahati, Assam