Posts Tagged ‘False case’

Assam: NHRC asks reports on intimidation of human rights defender

January 16, 2018

National Human Rights Commission (NHRC) issued direction to authorities in Assam calling for a report on allegations of abuse, threats and false case on human rights defender Mr Sishir Dey of Karimganj. The direction of NHRC came on a complaint filed by Barak Human Rights Protection Committee (BHRPC) on 13 December 2017 after the voluntary organization came to know about the abuses and intimidation of the practicing lawyer and rights defender.

Sishir Dey

Sishir Dey

The abuse and intimidation came after Mr Dey posted a short satirical comment on facebook on 8 December 2017 denouncing terrorism in the name of Hindu religion and violent ideas of Hindu political groups. His comment was made in the context of a video of a gruesome murder of a migrant labourer in Rajasmand district of Rajasthan state on 6 December 2017 that was circulating on internet where one Shambu Raigar, the perpetrator, was seen boasting about the murder and claiming that he did it as a warning against inter-religious relationship which he called “love jihad”. For denouncing this heinous crime and display of barbarism, Mr Dey received vulgar abuses and outright threats of physical assaults and murder. A complaint was also filed at the Karimganj Sadar police station against Mr Dey.

It was apparent that Mr Dey was at risk of physical and mental harm from the supporters of concerned political groups as well as of harassment by the police. In the circumstances, BHRPC intervened and filed a complaint at NHRC and informed national and international groups dedicated to protection of human rights defenders including Human Rights Defenders Alert, India and Dublin based Front Line Defenders. BHRPC has also sent a separate communication to the UN Special Rapporteur on the situation of human rights defenders.

The direction of NHRC asking for reports within four weeks was communicated to BHRPC on 16 January 2018.

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Editor and publisher of a little magazine intimidated and harassed by police in Silchar, Assam

November 20, 2011


A young editor and a publisher were harassed and intimidated for publishing a little magazine for allegedly containing materials that were thought to be immoral and insulting to a section of the society inSilchar,Assam. The magazine titled ‘Via Trunk Road’ contained write-ups, poems and pencil sketches on the rights of the homosexuals and the homosexuality. Additionally, a sketch of the language martyrs memorial altar with the names of eleven martyrs, eleven vodka bottles in a big glass and a burning cigarette was also published in the magazine. Police from Silchar Sdar police station in Cachar district registered a case against the editor and the publisher, raided their houses at mid-night and arrested and kept in detention illegally after a group of some influential people lodged a complaint against them. Subsequently they were released after they apologized publicly under social pressure. But the case against them still continues.

 Barak Human Rights Protection Committee (BHRPC) received written communications from the victims describing the incident in detail.  According o the information, ‘Via Trunk Road’ is a little magazine edited by Sahidul Haque Talukdar (aged 18), son of Nazrul Haque Talukdar and a resident of Munshi Safar Ali Lane, Ghaniala, Malugram, Silchar – 2 (Assam) and published by Shamim Ahmed Laskar (aged 23), son of  Abdul Wahid Laskar and a resident of Ghaniala Road, (near Masjid) Silchar – 2 (Assam). The June 2011 issue  contained some nude and seminude pencil sketches, some poems and articles about homosexuality, social, religious and scientific viewpoints on it. On the back cover page an altar with the names of eleven language martyrs (Bhasha Shaheed) of Barak Valley and a big glass containing eleven vodka bottles and a burning cigarette was sketched and titled as ‘Unish 2050’. The martyrs represent the sentiment of the Bengali speaking people living in the valley. They were killed by the state police for protesting against the policy of the state government to impose Assamese language in place of Bengali, the mother tongue of the majority inhabitants, during a demonstration at Silchar Railway Station on 19th May, 1961. The editor and publisher stated that a photograph published few days earlier in a local newspaper showing the accumulated wine bottles near the altar inspired them to publish the innocuous sketch in an attempt to depict the language martyrs day of 19 May celebration in 2050.

 According to the information received, ‘Bhasha Shahid Station Shahid Smaran Samiti’, a committee associated with the martyrs memorial and some other people were apparently got angry and lodged a complaint against the editor and the publisher of ‘Via Trunk Road’ on 16th July, 2011 at the Silchar Sadar Police Station and demanded their arrest. The Officer in Charge (OC) registered a First Information Report under sections 290/294/500/502/504 of the Indian Penal Code, 1860 vide Case No. 1136/11dated 16/07/2011. Section 290 provides punishment for public nuisance, 294 punishes obscene acts and songs, 500 gives punishment for defamation, 502 prohibits sale of printed substance containing defamatory matters and 504 provides punishment for intentional insult with intent to provoke breach of the peace.

 According to the victims, On 25 July, 2011 at 12.15 midnight 8-9 police personnel arrived at Shamim’s house; some of them were in civil dresses. Mr. Mukut Kakati, an officer, asked Shamim about his involvement with the magazine. Then he asked about Sahidul and wanted to visit his house. He also informed that an FIR had been lodged against their magazine and hence a meeting would be held at Shamim’s Residence. They reached Sahidul’s house at 12.45 am and woke him up by calling him and knocking on his door. Sahidul at first followed them and after a while he rushed to his mother’s room to inform his mother who at that time was in sound sleep. Mr. Kakati entered the room forcibly and said that it would take hardly 30 minutes. Both were astonished when they came to know that they were taken to Malugram Police Outpost instead of arranging any meeting at Shamim’s place. Mr. Kakati asked Shamim to bring all the unsold copies of their magazine, which he did. Then they reached Silchar Sadar Police Station instead of Maligram outpost. The victims alleged that most of the police personnel were visibly drunk.

 There for the first time, Shamim and Sahidul came to know that they had been arrested. At that time two other detained persons were badly beaten by Mr. Kakati in front of the Shamim and Sahidul and were let free; this was a frightening experience to Shamim and Sahidul. Both of them were taken toS.M.DebCivilHospitalfor medical test. They replied that they have no injury when asked by the Medical Officer. They returned to the Police Station at around 1:30 am. After checking their clothes they were detained in the lock up. Shamim’s spectacles were snatched though it was inevitable for a myopic person like him. They were kept in the police lock-up, which according to hem, was not in a condition to be in for a human being. It was filled with cockroaches, rats, mosquitoes, smell of urine and stool, dirty water etc. There was no water facility in the lavatory and it was so dirty that they started vomiting. They were provided with a blanket as mattress, which was perhaps not washed since years and smelt bad.

 The Investigating Police officer (I/O) wrote to the Chief Judicial Magistrate (CJM) objecting to the grant of bail to the detainees showing various absurd reasons. He described, ‘.. a news was published in the Samayeek News Paper where deliberate and malicious photographs against the Bhasa Shahid Station…..’ He also described that the accused persons have intentionally caused breach of peace by writing against the feeling of a particular religious community. He further added that the situation was not suitable and might turn to worst leading towards bloodshed. These statements were utterly false and made with malicious intentions. However, the objection was not considered and the accused were released on bail of Rs. 20,000 at 2:30 pm.

But on the contrary to the description of the police, some renowned cultural activists and intellectuals of the valley condemned the arrest and demanded withdrawal of the case. As the editor and the publisher both were Bengali and as there was no religious sentiment attached with the martyrs but only linguistic concern, the question of communal violence raised by police was absurd and intentional. They also raised question about the inaction of the administration and the complainants regarding heaps of garbage of used bottles of wine, gutka packets and other similar things on and around the actual altars of Bhasa Shahid even after reports and photographs had been published in the local newspapers. They also said that the question of obscenity in art and literature is still controversial and there is no exact definition of the same. So there is no ground to demand arrest and to execute it. Moreover, Mr. Mukut Kakati was misusing his power at the instance of the influential persons. His letter to the CJM shows that he has no idea about the martyrs and the related phenomena. He only tried to extend the detention of the accused persons without any proper reason and with ill intention. Mr Kakati arrested the accused and kept them in detention in inhuman condition without maintaining proper legal process.

 BHRPC thinks that the sections of law that were invoked against the accused were not warranted by any thing published in the said magazine and as such the actions of police in registering the FIR, conducting raids, arresting the accused, keeping them in detention and attempt to mislead the courts with false statements amount to violations of fundamental rights under the Constitution of India and basic human rights under the Universal Declaration of Human Rights, 1948 and the International Covenant on Civil and Political Rights, 1966.

 BHRPC urges the authorities to provide adequate compensation to the victims for the physical and mental harassment and violations of their rights; initiation of disciplinary actions against the erring police personnel and guarantee of the safe exercise of right to freedom of expression and thought in Barak valley.

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.

BHRPC hails Supreme Court order granting bail to Dr. Binayak Sen

April 17, 2011

The Supreme Court of India granted bail to Dr. Binayak Sen, an internationally recognised human rights defender on 15 April after a prolonged hearing. Dr. Sen was serving life sentence meted out to him on 24 December 2010 along with two others. Dr. Sen was charged with sedition under sections 124A read with section 120B of the Indian Penal Code, 1860. He was also charged with working for outlawed Maoists under sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam (Chhattisgarh Special Public Safety Act), 2005 and section 39(2) of the Unlawful Activities Prevention Act, 1967. Barak Human Rights Protection Committee (BHRPC) on 31 January 2011 wrote to the Prime Minister of India and other authorities including the Chief Justice of India urging them to release him and repeal these repressive laws.

BHRPC hails the order of the Supreme Court of India granting bail to Dr. Binayak Sen made on 15 April 2011 and reiterates (See earlier statement) its demands for a thorough and objective inquiry into the alleged conspiracy to falsely book Dr. Sen in order to intimidate other human rights defenders and to repress voice of dissent. BHRPC also urges the authorities in India to immediately release all other human rights defenders who are put behind bars unjustly.

BHRPC further welcomes the statement of Union Minister for Law and Justice that laws of sedition need to be revisited and urges the government to repeal/amend all repressive laws including the infamous Armed Forces (Special Power) Act, 1958. BHRPC expresses its solidarity with Irom Chanu Sharmila of Manipur who has been fasting for more than a decade demanding repeal of the AFSPA.

Assault on human rights defenders in Hailakandi, Assam

April 3, 2011

Human Rights Defenders Mr Choudhury Charan Gorh and Mr Shyama Prasad Kurmi were subjected to physical assault on 30 June 2009 in Hailakandi, Assam. Mr Choudhury Charan Gorh is the secretary of NGO HELP, a grass-roots organisation which monitors corruption in the local self-government (the Panchayati Raj) and works for the practical realisation of rural development. Mr Shyama Prasad Kurmi is also a member of NGO HELP.

On 30 June 2009, NGO HELP convened a public meeting to discuss the scale of corruption in the implementation of rural development schemes by the local government in Assam, in conjunction with the Mazuri Shramik Union, a local labour organisation which raises awareness concerning the development schemes of the Union government of India and the State Government of Assam. At approximately 3.00 pm, a group of armed men, carrying daggers, sticks and swords, broke up the meeting and assaulted the attendees indiscriminately. Choudhury Charan Gorh and Shyama Prasad Kurmi sustained severe injuries and were admitted to hospital. The identity of the armed men who assaulted them is known to the human rights defenders; they are believed to be connected to the president of Aenakhal Gaon Panchayat, the village level unit of the institution of Pachayati Raj.

The organisers of the public meeting had previously informed the District Magistrate and Superintendent of Police of Hailakandi and Officer-in-Charge of Lala police station of the forthcoming meeting. They had also requested a police security presence for the meeting, fearing a potential disruption from those involved in corruption in local development schemes. No response to this security request was received. Following the attack, the organisers of the meeting filed a complaint with the Lala Police Station. As yet, no visible action has been taken by the police to investigate the case or bring the perpetrators to justice.

BHRPC informed Front Line regarding the incident with in turn issued an Urgent Appeal on 13 July 2009. BHRPC also wrote to the Prime Minsiter of India and Prime Ministers’s Office forwarded the complaint to the Chief Secretary of Assam for taking actions. But no actions were taken despite several reminders.

BHRPC wrote to the Uinted Nations Special Rapporteur on the situations of human rights defenders on 14 January 20011.

False cases filed against HRDs

April 3, 2011

Sadique Mohammed Laskar, member of BHRPC, Shahidul Hoque Laskar, Secretary of Kishan Bikash Samity (KBS), a voluntary community organisation based at Banskandi in Cachar district and its other members were implicated in a false case, their houses were raided and local people of Banskandi were harassed in June 2008.

Kishan Bikash Samity works to expose corrupt officials using the Right to Information Act, 2005. On 4 June 2008 members of the public and students demonstrated front of the office of the Block Development Officer (BDO) of Banskandi to protest against corrupt practices of the officials regarding implementation of the Government welfare schemes exposed by the KBS. Police registered a false case against the demonstrators under section 143, 447, 341, 353, 383, 379 and 487 of the Indian Penal Code, 1860 vide Lakhipur Police Station Case No. 148/08 including 5 members of KBS and 30 other unidentified persons of the locality. Police started wholesale raiding and harassing of the local people. When Sadique Mohhamed Laskar on behalf BHRPC started documenting the rights violations of people during the raids, police threaten him and even raided his house, despite absence of his name in the First Information Report (FIR).

There was preparation to arrest Shahidul Hoque Laskar in order to prevent him to appear as a petitioner before the State Information Commission, Assam (SIC) in an appeal case against the BDO, Banskandi. Sahidul Haque Laskar applied for pre-arrest bail in the Gauhati High Court apprehending arrest though he was not named in the FIR. High Court granted him pre-arrest bail vide B A No. 2447 of 2008. The High Court accepted that the ground for apprehension of arrest is the date of hearing on 17 July 2008 before the SIC and mentioned in the bail order that bail should be granted so as he can appear before the SIC on that day.

The false case is still pending with the police. No report was submitted to the court. No investigation was conducted to unearth the conspiracy to harass and intimidate the HRDs and to bring the perpetrators to justice.

BHRPC wrote to the Uinted Nations Special Rapporteur on the situations of human rights defenders on 14 January 20011.

Release Dr. Binayak Sen, Protect HRDs and Repeal Repressive Laws

January 31, 2011

Press Statement

For immediate release

31 January, 2011, Silchar

Release Dr. Binayak Sen, Protect HRDs and Repeal Repressive Laws

Barak Human Rights Protection Committee (BHRPC) on 31 January 2011 wrote to the Prime Minister of India and other authorities including the Chief Justice of India to express its shock and deep concern at the incarceration of Dr. Binayak Sen, an internationally recognized physician, health worker and human rights defender. He has been convicted on 24 December 2010 along with two others and has been sentenced to imprisonment for life. Dr. Sen has been charged with sedition under sections 124A read with section 120B of the Indian Penal Code, 1860. He has also been charged with working for outlawed Maoists under sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam (Chhattisgarh Special Public Safety Act), 2005 and section 39(2) of the Unlawful Activities Prevention Act, 1967.

Reports show that the trial was unfair and failed to meet the standard of criminal jurisprudence and human rights norms. It is seen that documents have been fabricated by the police and false witnesses introduced. The judgment suggests that the judge has ignored evidence provided by the defence and has relied on hearsay evidence of the prosecution. Guilt of Dr. Sen has not been proved beyond reasonable doubt, which is a primary requirement for conviction.

BHRPC believes that Dr. Sen as been targeted maliciously for his peaceful and legitimate human rights works and criticism of the government policy that violates international human rights norms. His prosecution is malafide; in fact it is a persecution. He has been made an example of by the state as a warning to other human rights defenders not to expose human rights violations.

Dr. Sen, giving up great career opportunities, dedicated his life in providing health care to the poorest people in the remote villages in Chattishgarh without access to public medical care, where he founded a hospital and trained women to provide basic health care. He also served as an adviser to the state government’s public-health committee until May 2007, when he was arrested. As human rights defender holding the positions of national vice president and president of Chattishgarh Unit of the People’s Union for Civil Liberties (PUCL), a leading civil liberties organization in India, Dr. Sen documented numerous cases of gross human rights violations by the security forces and Salwa Judum, a private militia held to be sponsored by the Chattishgarh government in the name of fight against Maoists, an armed opposition group which also does not respect the rights of people.  Dr. Sen often raised his voice against the massacres of people by both the sides and appealed for dialogue and peace.

Human rights defenders like Dr. Sen provide services that should be provided by the government. They play a great role in upholding and fulfilling the constitutional mandates and establishment of the rule of law by documenting incidents of unlawful actions and atrocities of state agencies, offering legal advice and intervention and constructive criticisms of the wrong policies. They provide legitimate outlet for the grievances of the people. They are not the enemies but the friends of the state and people.

This has been recognised by the United Nations as well as by the government of India. The UN adopted a Declaration on Human Rights Defenders in 1998 that provides for the support and protection of human rights defenders in the context of their work. The Indian parliament passed the Protection of Human Rights Act in 1993 that recognises the role of HRDs and mandates the National Human Rights Commission to support non-governmental organisations in their human rights work. But in reality people like Dr. Binayak Sen are persecuted and prosecuted under the same laws that were used by the British colonial rulers against people like Mahatma Gandhi and Bal Gangadhar Tilak.

BHRPC believes that using repressive laws of colonial era against HRDs and innocent people and enacting new such laws empowering the law enforcement agencies to trample upon universally recognised human rights of the citizens is not the solution to the problem of unrest and insurgency. The rule of law, fundamental constitutional rights and universally recognised human rights must be upheld.

Many Indian laws meant to deal with insurgency and terrorism fall well short of the constitutional and human rights standards even keeping in consideration the derogation provided therein. Some of them have been struck down by the SC (for example, some provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985), some of them have been modified and their imports narrowed down (for example, section 124A of the IPC) and in cases of some others the SC provided additional guidelines to save them from unconstitutionality (for example, the National Security Act, 1980, the Armed Forces (Special Power) Act, 1958 some special laws enacted by state legislatures including the Assam Disturbed Areas Act, 1955 etc.). The UN Human Rights Committee and other organs continue to recommend the Indian state to repeal or amend such laws in order to make them compatible with the international human rights standards. However, these laws are maliciously being used against HRDs increasingly in many states in India.

BHRPC understands and hopes that legal questions in the case of Dr. Sen will be addressed in the High Court and Supreme Court expeditiously. But there is no judicial avenues to undo the damage done particularly to the mental and physical health of Dr. Sen who is a 61 year old heart patient, his family and friends by putting him in this legal wrangle. Facing trial in India is itself a punishment and deterrent. Human rights works in India and country’s image in the world have been affected adversely by this trial. This unfair trial has also put the Indian judiciary and democracy on trial before the international community. Further damage must be stopped and it can be done by releasing Dr. Sen and providing him with adequate reparation and by bringing to book those who conspired to falsely implicate Dr. Sen, fabricated evidence, committed perjury and unduly influenced the judge.

BHRPC, therefore, urged the authorities to ensure that (1) Dr. Binayak Sen must be released immediately and his appeal must be disposed of as soon as possible;  (2) An independent inquiry must be instituted to find out those who conspired to falsely implicate Dr. Sen, fabricated evidence, committed perjury and unduly influenced the judge; (3) Dr. Sen and his family must be provided with adequate reparation; (4) Human rights defenders must be provided full protection and special professional privileges; (5) Repressive laws such as section 124A of the IPC, the Chattishgarh Special Public Safety Act, 2005, the Unlawful Activities (Prevention) Act, 1967, the Armed Forces (Special Power) Act, 1958, the Assam Disturbed Areas Act, 1955 etc. must be repealed or adequately amended and brought in conformity with the international human rights standards.


Neharul Ahmed Mazumder

Secretary General, BHRPC

Click here to download copy of the letter to Prime Minister

BHRPC hails Supreme Court order granting bail to Dr. Binayak Sen

The Supreme Court of India granted bail to Dr. Binayak Sen, an internationally recognised human rights defender on 15 April after a prolonged hearing. Dr. Sen was serving life sentence meted out to him on 24 December 2010 along with two others. Dr. Sen was charged with sedition under sections 124A read with section 120B of the Indian Penal Code, 1860. He was also charged with working for outlawed Maoists under sections 8(1), 8(2), 8(3) and 8(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam (Chhattisgarh Special Public Safety Act), 2005 and section 39(2) of the Unlawful Activities Prevention Act, 1967. Barak Human Rights Protection Committee (BHRPC) on 31 January 2011 wrote to the Prime Minister of India and other authorities including the Chief Justice of India urging them to release him and repeal these repressive laws.

BHRPC hails the order of the Supreme Court of India granting bail to Dr. Binayak Sen made on 15 April 2011 and reiterates (See earlier statement) its demands for a thorough and objective inquiry into the alleged conspiracy to falsely book Dr. Sen in order to intimidate other human rights defenders and to repress voice of dissent. BHRPC also urges the authorities in India to immediately release all other human rights defenders who are put behind bars unjustly.

BHRPC further welcomes the statement of Union Minister for Law and Justice that laws of sedition need to be revisited and urges the government to repeal/amend all repressive laws including the infamous Armed Forces (Special Power) Act, 1958. BHRPC expresses its solidarity with Irom Chanu Sharmila of Manipur who has been fasting for more than a decade demanding repeal of the AFSPA.

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

January 22, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To the Central and State Governments:

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

To National and existing State Human Rights Commissions:

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

To the judiciary:

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

To human rights defenders

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

To the international community and donors

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

To all stakeholders:

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

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

ENDS

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

See the statement on the OHCHR website:

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

Police opens fire, injures minor and subsequently arrests him

January 18, 2011

Police Opens Fire, Injures Minor and Subsequently Arrests Him

A boy aged about 17 years named Saidur Rahman Barbhuiya, son of Abdul Nur Barbhuiya, Village: Dhumkar under Katigorha Police Station in Cachar, Assam was hit by a bullet in his left leg and seriously injured on 21 September, 2007.

After the death of Motahir Ali Tapadar in police custody on 21 Sept. 2007 the people of Kalian gathered in front of Kalian police petrol post and demanded the arrest of Narayan Tamuli and other police personal who were responsible for the death of Motahir Ali. To disperse the gathering police opened fire and caused 80 rounds of firing at the order of Circle Inspector. P.S Das.

At that time the victim was watching the incident from the roof top of a nearby two storied building when he was hit by a bullet and badly injured. He was admitted to the Silchar Medical College & Hospital, Silchar. After a little recovery when he was released from the hospital the police arrested him in connection with the Katigoraha P.S. Case No. 455/07, which was registered against the persons gathered in front of the PP and demanded arrest of the police personnel responsible for the death of Motahir ALi bringing false charges against them, showing utter disregard to the logic and common sense.

Saidur Rahman was watching the incident from the roof top of a two storied building when he was hit. So, he can never be a part of the gathering for the dispersal of which police opened fire. Moreover, as per the claim of the police, they fired in the air in order to frighten away the crowd. If he was a part of the crowd it is clear that all the bullets are not fired in the air as they claimed.

Destruction of Police Post by police themselves and subsequent atrocity on villagers

January 18, 2011

Destruction of Police Post by Police themselves and Subsequent Atrocity on Villagers

In the wake of the incident of torture and death of Motahir Ali Tapadar on 21 September, 2007 in the custody of police posted at Kalain Police Patrol Post under Katigorah Police Station in Cachar, Assam the police themselves set fire on the PP and Bhairavpur-Klain Gaon Panchayat office situated in the same campus and burnt them down in order to distract the attention of people from the death of Motahir Ali.

Subsequently SI Biswajit Sinha registered Katigorah Police Station Case No. 455/07 under sections 147, 149, 447, 448, 336, 333, 436 and 307 of the Indian Panel Code, 1860 against Faruk Ahmed Laskar, president of Kalain Citizen Forum and other 500 (five hundred) unidentified persons accusing them of the very offences which were committed by police themselves. In connection with this trumped-up case the police conducted frequent raids, caused persecution and harassment to the people residing in the village of Bhatgram. Police also arrested Faruk Ahmed Laskar, Ibazul Haque Laskar, Imamul Hoque and Saidur Rahman Barbhuiya who were later accorded bail by the Gauhati High Court.