Posts Tagged ‘Police’

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

August 14, 2012

Forwarded statement

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

INDIA: Reform dishonesty first

August 13, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 19, 2012

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

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

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

The report:

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

The victim:

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

 

Place:

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

Incident:

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

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

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

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

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

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

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

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

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

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

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

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

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

Background:

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

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

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

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

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

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

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

Controversy over ‘conversion and marriage’:

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

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

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

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

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

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

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

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

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

Conclusion:

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

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

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

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

Recommendations:

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

To the Government of Assam:

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

To the Central Government of India:

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

For any clarification and more information please contact:

Waliullah Ahmed Laskar

Director, Legal Affairs

Barak Human Rights Protection Committee (BHRPC)

Cell: +919401942234

Email: wali.laskar@gmail.com


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

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

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

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

 

 

 

India: Moving Towards the New Police State

April 23, 2012

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

India: Moving Towards the New Police State

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

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

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

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

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

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

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

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

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

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

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

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

April 22, 2012

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

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

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

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

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

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

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

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

Wrath of police: Photo courtesy merinews.com

Wrath of police: Photo courtesy merinews.com

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

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

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


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


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.

Urgent Appeal: An old man assaulted by the Central Reserve Police in Assam

April 8, 2011

BARAK HUMAN RIGHTS PROTECTION COMMITTEE

Urgent Appeal No. BHRPC Case No 64/2011/UA/25/211 Dated: 9 April 2011

Dear Friends,

Acting on the information provided by Barak Human Rights Protection Committee (BHRPC), the Asian Human Rights Commission (AHRC) issued an Urgent Appeal concerning the case of torture of a 66-year-old person, his aged wife and son by a group of Central Reserve Police Force (CRPF) officers at the victim’s residence. No action was taken upon a complaint filed at the Silchar Sadar police station concerning the incident. It is reported that the Office-in-Charge (OC), instead of investigating the case is demanding that Fariz settle his complaint against the CRPF and rather withdraw it should he not dare facing yet another assault from the CRPF. Fariz filed another complaint at the National Human Rights Commission (NHRC), which was also not acted upon. Please take the suggested actions.

Yours sincerely

Waliullah Ahmed Laskar

Urgent Appeal Desk

Barak Human Rights Protection Committee

Rongpur, Silchar-9, Assam, India

INDIA: An old man assaulted by the Central Reserve Police in Assam

April 8, 2011

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-074-2011

Send an appeal letter

8 April 2011

——————————————————
INDIA: An old man assaulted by the Central Reserve Police in Assam

ISSUES: Torture; Impunity; Martial law; Rule of law

——————————————————

Dear friends,

The Asian Human Rights Commission (AHRC) has received information from the Barak Human Rights Protection Committee (BHRPC) concerning the case of torture of a 66-year-old person, his aged wife and son by a group of Central Reserve Police Force (CRPF) officers at the victim’s residence. It is reported that the CRPF tortured Mr. Fariz Uddin Barbhuiya, his wife and son on 27 July 2010 causing serious injuries to the old man. The CRPF assaulted Fariz since he had protested against the CRPF concerning a civil dispute. Fariz had to be hospitalised at the Silchar Medical College Hospital (SMCH) to recover from the injuries. No action was taken upon a complaint filed at the Silchar Sadar police station concerning the incident. It is reported that the Office-in-Charge (OC), instead of investigating the case is demanding that Fariz settle his complaint against the CRPF and rather withdraw it should he not dare facing yet another assault from the CRPF. Fariz filed another complaint at the National Human Rights Commission (NHRC), which was also not acted upon. Fariz is a retired CRPF constable.

CASE NARRATIVE:

A team of about ten CRPF personnel entered the Fariz’s house and assaulted him along with his wife and son on 27 July 2010. Fariz was seriously injured in the incident and had to be hospitalised. The CRPF is a paramilitary force in India.

Fariz is a retired CRPF constable living in front of the 147 battalion of the CRPF camp. Fariz’s house is within the jurisdiction of Silchar Sadar Police Station in Cachar district of Assam state. Fariz supports his family with his pension and the earnings from a small shop where he sells betel nuts and operates a public call office (PCO). Fariz alleges that he was assaulted for protesting against the CRPF concerning a civil contract.

Fariz alleges that one Mr. Radheshyam Sahu, had obtained permission to cut and sell grass from the CRPF 147 battalion campus through a public auction. Thereafter, Sahu entered into a contract with Fariz on 22 April 2010 allowing Fariz to cut and sell grass for which he paid Sahu Rs. 7,500.00. Few days later, Fariz came to know that Sahu had allowed another person to cut and sell grass from the same campus. Aggrieved by the breach of contract, Fariz went to Sahu and demanded an explanation.

It is reported that Sahu ignored Fariz’s question and misbehaved to him. Fariz was disappointed and on 26 June complained to the commander of the battalion, Mr. T. K Hati, asking him to intervene. The commander reportedly informed Fariz that it was him who allowed the other person to cut and sell grass from the campus. Fariz then reminded the commander about the contract and requested the commander to return his money.

Fariz alleges that the officer shouted abuses at him when he demanded the officer to return the money. The officer then threatened Fariz and warned him that he will be taught a lesson for daring to demand the return of the money from a superior officer. Fariz went home disappointed. Fariz stated that following his argument with the commandant, a team of more than ten CRPF personnel accompanied by Mr. Sahu came to Fariz’s house at around 4.30pm on 27 July. Fariz claims that the team was led by the commander Mr. Hati and accompanied by CRPF constables Mr. Abani Nath, Mr. Shashi Bhushan, and Havildar Mr. Amir Uddin Laskar.

Fariz claims that the officers forcibly entered the house and started beating him without any warning. The officers assaulted Fariz with gun butts. The officers then kicked Fariz and punched him on his head and other parts of his body. Fariz’s wife, Aftarun Nessa Barbhuiya, and his son, Asif Akhtar Barbhuiya, tried to intervene and requested the officers to spare the old man. Fariz was lying on the ground soaked with blood. However, it is alleged that the CRPF then assaulted Aftarun Nessa and Asif Akhtar.

Fariz further alleges that the officers then damaged furniture, utensils and other valuable things in his house. Fariz claims that the officers then took the cash box of his shop that had approximately Rs. 2500.00 in it at the time. When the officers left, they warned Fariz against complaining to the authorities or to the police about the incident. The officers also threatened the family that they would be charged with false cases of keeping illegal firearms and ammunition if they sought help from the human rights organisations or informed the media. After the officers left the family called an ambulance and took Fariz to the Silchar Medical College and Hospital (SMCH). Fariz was admitted at the SMCH and after a few days when his health improved discharged from the hospital.

It is reported that Fariz filed a complaint at the Silchar Sadar Police Station on 28 July 2010 concerning the incident and requesting the police to take appropriate actions against the CRPF officers. The police registered an FIR (First Information Report) based on the complaint as Silchar PS (police station) Case No. 1445/10 under Sections 147 (punishment for rioting), 448 (punishment for house-trespass), 325 (punishment for causing grievous hurt), 323 (punishment for causing hurt), 427 (mischief causing damage), 307 (attempt to murder) and 149 (punishment of being a member of unlawful assembly) of the Indian Penal Code, 1860 (IPC). Sub-Inspector Mr. Jitu Mani Goswami was the investigating officer (IO) of the case.

Fariz, however, alleges that the IO was not investigating the case. Instead, the Officer-in-Charge (OC) of the Silchar Sadar Police Station was demanding Fariz to come to an amicable settlement with the accused CRPF personnel and withdraw the complaint. Another complaint was then filed at the National Human Rights Commission (NHRC) on 5 February 2011 with the help of local human rights group, Barak Human Rights Protection Committee (BHRPC). BHRPC informs that there have been no responses from the NHRC yet concerning the case.

BHRPC and Fariz allege that the assault and theft was a punishment for daring to complain to the CRPF commandant as well as demanding money back from the officer, which the officer viewed as challenging his authority, that too by a retired and old former constable. In places like Assam in India, the CRPF and other paramilitary units have absolute impunity wherever they are posted. The AHRC has reported more than 300 cases of torture, murder and rape committed by the CRPF and other paramilitary units in India over the past six years. Most of these cases find some action only when the AHRC makes the incident public. The AHRC has also noted that in many cases the victims refuse to speak about the incident due to fear of further assault or threat from these agencies. India also does not have any form of witness protection laws or mechanisms.

SUGGESTED ACTION:

Please write letters to the authorities listed below asking them to intervene in the case immediately.

The AHRC is also writing a separate letter to the UN Special Rapporteur on the question of torture seeking an intervention in the case.

To support this appeal click here

SAMPLE LETTER:

Dear __________,

INDIA: Please investigate the case of assault by the CRPF of a 66-year-old man at his residence along with his wife and son

Name of victims:

1. Mr. Fariz Uddin Barbhuiya aged about 66 years residing within the jurisdiction of Silchar Sadar police station in Cachar district of Assam state

2. Ms. Aftarun Nessa Barbhuiya, wife of Fariz

3. Mr. Asif Akhtar Barbhuiya, son of Fariz

Names of alleged perpetrators:

1. Mr.Radheshyam Sahu, owner of the High Tech Communication shop

2. Mr. TK Hati, commander of the 147 battalion of CRPF camp stationed under the jurisdiction of Silchar Sadar police station in Cachar district of Assam state

3. Mr. Abani Nath, constable of the 147 battalion of CRPF camp stationed under the jurisdiction of Silchar Sadar police station in Cachar district of Assam state

4. Mr. Shashi Bhushan, constable of the 147 battalion of CRPF camp stationed under the jurisdiction of Silchar Sadar police station in Cachar district of Assam state

5. Mr. Amir Uddin Laskar, Havildar of the 147 battalion of CRPF camp stationed under the jurisdiction of Silchar Sadar police station in Cachar district of Assam state

Date of incident: 27 July 2010

Place of incident: Victim’s residence

I am writing to seek immediate actions in the case reported to me of assault by the Central Reserve Police (CRPF) of a 66-year-old man, his wife and son at his residence on 27 July 2010. I am concerned to know that the complaints filed by the victims at the local police station and at the National Human Rights Commission (NHRC) have not been acted upon. On the contrary, the local police is demanding that the victim settle the case with the CRPF outside the police station and withdraw his complaint, or dare facing yet another assault from the CRPF.

I am informed that there were about ten CRPF officers who entered the Fariz’s house and assaulted him along with his wife and son. Fariz was seriously injured in the incident and had to be hospitalised. The CRPF is a paramilitary force in India.

Fariz is a retired CRPF constable living in front of the 147 battalion of the CRPF camp. Fariz’s house is within the jurisdiction of Silchar Sadar Police Station in Cachar district of Assam state. Fariz supports his family with his pension and the earnings from a small shop where he sells betel nuts and operates a public call office (PCO). Fariz alleges that he was assaulted for protesting against the CRPF concerning a civil contract.

Fariz alleges that one Mr. Radheshyam Sahu, had obtained permission to cut and sell grass from the CRPF 147 battalion campus through a public auction. Thereafter, Sahu entered into a contract with Fariz on 22 April 2010 allowing Fariz to cut and sell grass for which he paid Sahu Rs. 7,500.00. Few days later, Fariz came to know that Sahu had allowed another person to cut and sell grass from the same campus. Aggrieved by the breach of contract, Fariz went to Sahu and demanded an explanation.

It is reported that Sahu ignored Fariz’s question and misbehaved to him. Fariz was disappointed and on 26 June complained to the commander of the battalion, Mr. T. K Hati, asking him to intervene. The commander reportedly informed Fariz that it was him who allowed the other person to cut and sell grass from the campus. Fariz then reminded the commander about the contract and requested the commander to return his money.

Fariz alleges that the officer shouted abuses at him when he demanded the officer to return the money. The officer then threatened Fariz and warned him that he will be taught a lesson for daring to demand the return of the money from a superior officer. Fariz went home disappointed. Fariz stated that following his argument with the commandant, a team of more than ten CRPF personnel accompanied by Mr. Sahu came to Fariz’s house at around 4.30pm on 27 July. Fariz claims that the team was led by the commander Mr. Hati and accompanied by CRPF constables Mr. Abani Nath, Mr. Shashi Bhushan, and Havildar Mr. Amir Uddin Laskar.

Fariz claims that the officers forcibly entered the house and started beating him without any warning. The officers assaulted Fariz with gun butts. The officers then kicked Fariz and punched him on his head and other parts of his body. Fariz’s wife, Aftarun Nessa Barbhuiya, and his son, Asif Akhtar Barbhuiya, tried to intervene and requested the officers to spare the old man. Fariz was lying on the ground soaked with blood. However, it is alleged that the CRPF then assaulted Aftarun Nessa and Asif Akhtar.

Fariz further alleges that the officers then damaged furniture, utensils and other valuable things in his house. Fariz claims that the officers then took the cash box of his shop that had approximately Rs. 2500.00 in it at the time. When the officers left, they warned Fariz against complaining to the authorities or to the police about the incident. The officers also threatened the family that they would be charged with false cases of keeping illegal firearms and ammunition if they sought help from the human rights organisations or informed the media. After the officers left the family called an ambulance and took Fariz to the Silchar Medical College and Hospital (SMCH). Fariz was admitted at the SMCH and after a few days when his health improved discharged from the hospital.

It is reported that Fariz filed a complaint at the Silchar Sadar Police Station on 28 July 2010 concerning the incident and requesting the police to take appropriate actions against the CRPF officers. The police registered an FIR (First Information Report) based on the complaint as Silchar PS (police station) Case No. 1445/10 under Sections 147 (punishment for rioting), 448 (punishment for house-trespass), 325 (punishment for causing grievous hurt), 323 (punishment for causing hurt), 427 (mischief causing damage), 307 (attempt to murder) and 149 (punishment of being a member of unlawful assembly) of the Indian Penal Code, 1860 (IPC). Sub-Inspector Mr. Jitu Mani Goswami was the investigating officer (IO) of the case.

Fariz, however, alleges that the IO was not investigating the case. Instead, the Officer-in-Charge (OC) of the Silchar Sadar Police Station was demanding Fariz to come to an amicable settlement with the accused CRPF personnel and withdraw the complaint. Another complaint was then filed at the National Human Rights Commission (NHRC) on 5 February 2011 with the help of local human rights group, Barak Human Rights Protection Committee (BHRPC). BHRPC informs that there have been no responses from the NHRC yet concerning the case.

BHRPC and Fariz allege that the assault and theft was a punishment for daring to complain to the CRPF commandant as well as demanding money back from the officer, which the officer viewed as challenging his authority, that too by a retired and old former constable.

I am also informed that in places like Assam in India, the CRPF and other paramilitary units have absolute impunity wherever they are posted. I am informed that the Asian Human Rights Commission (AHRC) has reported more than 300 cases of torture, murder and rape committed by the CRPF and other paramilitary units in India over the past six years. In most of these cases actions were initiated only when the AHRC made the incident public. I am also informed that the AHRC has noted that in many cases the victims refuse to speak about the incident due to fear of further assault or threat from these agencies as it has happened in this case.

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

1. That the police must immediately record the statement of the victims;

2. That the police investigate the case without any further delay;

3. That if required the witnesses provided protection by the police;

4. That the NHRC informs Fariz and/or BHRPC the status of the complaint they have filed at the NHRC without any further delay.

Yours sincerely,

—————-

PLEASE SEND YOUR LETTERS TO:

1. Mr. K. Vijay Kumar, IPS
Director General
Central Reserve Police Force
Block No. 1, C.G.O. Complex
Lodhi Road
New Delhi – 110001
INDIA

2. DIG (ADM), NES (Ops) Sector NES
Operations Headquarters
Jorhat
Assam
INDIA

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

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

5. Chief Justice
Guwahati High Court
Government of Assam
INDIA
FAX +91 361 2604122 or +91 362 2735863 (Registrar General)
E-mail: hc-asm@nic.in, hicourtg@rediffmail.com

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

Thank you.

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

See the appeal at AHRC website: http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-074-2011

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.

Harassment and intimidation of BHRPC member by police

April 3, 2011

Waliullah Ahmed Laskar, member of the legal team of BHRPC was detained by Assam police on 4 December 2008 with a view to intimidate him. In the evening at approximately 8:00 pm, he was in an internet cafe in Guwahati when a group of armed police officers from Dispur Police Station, led by the Deputy Superintendent of Police (DSP), entered the café and approached him. The DSP demanded that Waliullah Ahmed Laskar show him what he was downloading, which he did. Waliullah Ahmed Laskar was then held in a police Jeep for 30 minutes while the DSP examined his computer. The DSP and police officers then searched Waliullah Ahmed Laskar´s room and confiscated all of his belongings pertaining to the BHRPC which included documents, his brief cases, laptop, USB flash drive and mobile phone.

Waliullah Ahmed Laskar was subsequently taken to Dispur Police Station where he was questioned by a team from the Subsidiary Investigating Bureau and the Intelligence Bureau until approximately 2:00am on 5 December 2008. Waliullah Ahmed Laskar was subsequently kept in detention while the police informed him that “experts” from outside of Assam were checking the items which had been confiscated. At 9:00 pm of the 5 December 2008 his items were returned to him and he was released without charge.

Prior to his arrest and interrogation Waliullah Ahmed Laskar had been assigned by the BHRPC to prepare a draft Project Proposal on ” The Right to Freedom from Torture and Violence: Compatibility of Indian Law and Practice with International Human Rights Standards (focusing on the North East Indian situation)”. As a member of BHRPC, he also participates in the ongoing policy making deliberations of the organization. For these reasons Waliullah Ahmed Laskar had been using the internet as his primary source of information concerning violence, torture, terrorism, counter terrorism, policing, human rights etc. The Dispur police allegedly informed Waliullah Ahmed Laskar that the basis of his interrogation was his research of information on these topics by internet.

BHRPC informed Front Line– the International Foundation for the Protection of Human Rights Defenders based Dublin about the incident. Front Line accordingly issued an Urgent Appeal on 10 December, 2008.

BHRPC also submitted a complaint to the National Human Rights Commission of India (NHRC) on 26 December, 2008 along with an Affidavit by Waliullah Ahmed Laskar. The NHRC registered a case as Case No.158/3/24/08-09/OC and transmitted the complaint to the Director General of Police, Assam on 15 January, 2009 asking him to dispose of the case.

The complaint was against the Assam Police and the NHRC transmitted it to the same Assam Police for disposal. Naturally they did not take any substantial actions. They submitted a report to the government and the NHRC absolving both Waliullah Ahmed Laskar and themselves without any proper enquiry trying to justify their actions on the ground of public welfare. No further actions were taken by either the government or the NHRC despite several reminder from the BHRPC. The case is still pending.

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