Posts Tagged ‘Torture’

Government must heed Manipur panel’s findings and end impunity for fake encounters

July 25, 2013

Government must heed Manipur panel’s findings and end impunity for fake encounters

24 July 2013

Amnesty International India
Bangalore at (080) 49388000
email: contact@amnesty.org.in

An independent panel set up by India’s Supreme Court to investigate six alleged extrajudicial executions in the northeastern state of Manipur has found damning evidence of impunity and abuse of special powers by security forces, resulting in widespread human rights violations.

The panel found that all seven deaths in the six cases they investigated were extrajudicial executions, and not deaths resulting from “encounters” where security forces claimed they had fired in self-defence against members of armed groups.

The panel also said that the continued operation of the Armed Forces (Special Powers) Act, 1958 (AFSPA) in Manipur has made “a mockery of the law,” and that security forces have been “transgressing the legal bounds for their counter-insurgency operations in the state of Manipur.”

The Supreme Court appointed the panel in January 2013 in response to a public interest litigation filed by a Manipur-based victims’ group and a local human rights organisation seeking investigation into 1,528 alleged extrajudicial executions committed in the state between 1979 and 2012.

The three-member panel,headed by retired Supreme Court judge Santosh Hegde, was tasked to determine whether a sample of six cases raised by the petitioners were “fake encounters,” staged to cover up extrajudicial executions. The panel was also directed to analyze the functioning of the state police and security forces in Manipur.

The panel submitted its report to the Court on 4 April. The petitioners received a copy of the report on 15 July.

In its report, the panel said that none of the seven people killed in the cases it examined had any formal criminal charges against them. It stated that security forces appeared to have assumed that the seven individuals had to be eliminated and acted accordingly.

In one case, the panel noted that the victim suffered 16 bullet injuries shot at close range, indicating a clear disproportionate use of force. It said that the medical evidence in the case indicated that the security forces’ intentions were to kill the suspect, not disable and arrest. The panel said, “The incident in question is not an encounter, but an operation by the security forces wherein death of the victims was caused knowingly.”

In another case involving the killing of a 12 year-old boy, security personnel told the panel that they had fired in self-defence. The post-mortem report stated that the victim suffered four bullet injuries, all of which were potentially fat al, while none of the security forces were injured.

The panel concluded, “It is extremely difficult to believe that nearly 20 trained security personnel equipped with sophisticated weapons…could not have overpowered/disabled the victim.” It concluded that “the incident in which the deceased…was killed was not an encounter nor was he killed in exercise of the right of self-defence.”

The report also identified serious investigative lapses committed by investigators and persistent abuse of the Unlawful Activities Prevention Act (UAPA). It called for all deaths resulting from encounters to be investigated by senior police officials, and for the Manipur Criminal Investigation Department to be “suitably strengthened” within six months to carry out such duties effectively. It also called for the cases to be monitored regularly by a committee chaired by the head of the state human rights commission, and tried by a special court.

Crucially, the panel pointed to the AFSPA as a key contributor to rights violations by security forces.

The report stated, “The continuous use of the AFSPA for decades in Manipur has evidently had little or no effect on the situation. On the other hand, the six cases, which have been shown to be not real encounters, are egregious examples of the AFSPA’s gross abuse.”

The panel echoed a statement made by the Jeevan Reddy Commission, another government committee formed to review the AFSPA in 2005, which said that the law had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.”

The panel’s report recorded how security forces in Manipur were disregarding procedural safeguards set out in Supreme Court rulings and Army directives to ensure that AFSPA powers were used with exceptional caution and with the minimum force necessary.

Moreover, the panel found no information to back the central government’s assertions to the Supreme Court that the use of AFSPA powers was being closely monitored. Rather, after repeated requests, they were told that there was no official record of basic information essential to such monitoring such as the number of civilians killed or injured by the police, army or other special forces in Manipur.

However, the panel stopped short of calling for the AFSPA’s repeal, and instead recommended that the law cease to operate in more parts of Manipur progressively.

Soldiers operating in areas where the AFSPA is in place cannot be prosecuted without the permission of the central government. Applications seeking permission to prosecute are almost always rejected, and sometimes remain pending for years. The panel recommended that the central government be given three months to respond to requests for prosecution, failing which it would be presumed to have granted permission to prosecute.

Amnesty International India welcomes the findings of the Supreme Court-appointed panel, but urges authorities to go beyond its recommendations and repeal the AFSPA in Manipur and elsewhere. The AFSPA has provided impunity for perpetrators of grave human rights violations for decades. Its continued operation in any form will allow human rights violations to continue.

In Manipur, impunity is endemic and authorities take little to no action to investigate and prosecute allegations of rights violations by security forces. A special investigation team comprising senior police officers from outside the state should be formed to conduct prompt and full investigations into all 1,528 cases of alleged extrajudicial executions brought before the Supreme Court by local groups.

Where sufficient admissible evidence is found, suspects – including those with command responsibility – should be prosecuted in fair and speedy trials meeting international standards in a civilian court, regardless of the time that has lapsed since the crime occurred. The families of the victims should receive adequate reparation, including compensation.

Amnesty International India urges both state and central authorities to heed the panel’s recommendations to bolster the Manipur police and Criminal Investigation Department in six months time in order to conduct thorough, impartial and effective investigations into all future cases of alleged extrajudicial executions in Manipur.

Authorities must apply procedures laid down by India’s National Human Rights Commission in cases of deaths caused in the course of police, army or other security personnel action, and follow the UN Principles and Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

The Government of India must also act on the recommendations of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and set up a credible commission of inquiry intoextrajudicial executions throughout India.

Background

Impunity in cases of extrajudicial killings is a matter of grave concern in Manipur and some other parts of India. In his comments after visiting India in 2012, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christ of Heyns observed that “Impunity for extrajudicial executions is the central problem. This gives perpetrators a free rein, and leaves victims in a situation where they either are left helpless, or have to retaliate.”

The National Human Rights Commission has itself on occasion said “extrajudicial executions have become virtually a part of state policy.”

The AFSPA, which has been in force in parts of Northeastern India since 1958, and a virtually identical law (The Armed Forces (Jammu and Kashmir) Special Powers Act, 1990) in force in Jammu and Kashmir since 1990, provide sweeping powers to soldiers, including the power to use lethal force against any person contravening laws or orders, and to prevent the assembly of five or more persons.

The law has provided impunity for perpetrators of grave human rights violations, including extrajudicial executions, enforced disappearances, rape, torture and other ill-treatment, and excessive use of force.

The AFSPA falls far short of international standards, including provisions of treaties to which India is a state party, and is inconsistent with India’s international legal obligations to respect and protect the rights to life, liberty and security of person, to freedom from torture and other ill-treatment, and to an effective remedy.

Several UN bodies and experts, including the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the situation of human rights defenders, have stated that the AFSPA must be repealed.

A number of Indian bodies, including the Second Administrative Reforms Commission, the Jeevan Reddy Committee to review the AFSPA and the Prime Minister’s Working Group on Confidence-Building Measures in Jammu and Kashmir, have also urged the repeal of the law. The Justice Verma Committee, set up to review laws against sexual assault, said in January 2013 that the AFSPA legitimized impunity for sexual violence.


* This Press Release was sent by Durga Nandini ( Amnesty International India) who can be contacted at Durga(dot)Nandini(at)amnesty(dot)org(dot)in
This PR was posted on July 24, 2013 .

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.

 

 

 

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

June 16, 2012

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

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

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

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

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

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

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

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

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

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

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

Indian reserve battalion soldiers assault a physician in Assam

April 2, 2012

A convoy of soldiers belonging to 22 Indian Reserve Battalion stationed at Kadamtala camp in Jiribam of Manipur state assaulted a physician at Jirighat market in Cachar district of Assam state on 29 March 2012 causing injuries and mental trauma. The incident led a scuffle between the local people and the soldiers causing some more injuries and a lot of fear and anxiety. The local people later blocked the53 National Highway(NH) forcing the police officers in both the districts to come over to the spot and take control of the situation. No complaint has been registered by the police against the soldiers and the victim is very concerned about his and his family members’ safety and security.

According to the information, the physician Mr. Dulal Biswas (age about 43, son of late N L Biswas) is a resident of Jirighat town under the Jirighat police station (PS) in the district of Cachar. Jirighat is a small town falling in the border ofAssamwith Manipur state. A tributary of the river Barak called Jiri separates Manipur fromAssamhere. On the other bank of the river falls Jiribam town in the Imphal West district of Manipur. Mr. Biswas is a registered medical practitioner and has been practicing medicines for some years. He runs his own private dispensary at Jirighat. He is a very respectable person in the town.

On 29 March he went to the market as usual to buy household stuffs and some vegetables at about 8am in the morning. He was riding a motor bike. Things went wrong when he was crossing the road after two Bolero cars passed him. He had to stop in the middle of the road as the Bolero car ahead of him stopped suddenly. But another Bolero car collided with the bike powerfully from behind. Though Mr Biswas fell down with the bike he did not sustain much injury. After he got up he demanded from the driver of the colliding car an explanation as to why he was driving so rashly in the market place. After exchange of a few words the driver got down from the car brandishing a stick. Some other soldiers in uniform also came out with their guns in hands. One of them put the pointed gun on the chest of Mr. Biswas and others punched and kicked him incessantly for a while. At that time some other soldiers who were buying alcohols from a nearby shop started shouting and hurling verbal abuses at Mr. Biswas and other people. It is these soldiers who suddenly stopped their car ahead of Mr Biswas’ bike and partially responsible for the accident. When they rushed towards Mr. Biswas many other people in the market started running, some to other directions but many towards the spot. It caused a great commotion and confusion and helped Mr. Biwas to go away. Although such disturbances by the military and para-military personnel at public places is a part of life in this part of the country, a section of the public lost their cool and tried to gherao the soldiers. When soldiers threatened to open fire the people started pelting stones here and there missing targets. The stones touched none. On the other hand, it facilitated escape of the soldiers.

Fearing retaliation from the IRB the people decided to seek permanent solution of such disturbances that has become a part of their lives through peaceful means. They blocked the NH 53 that connects Cachar district administrative headquarters Silchar with Imphal, the capital of Manipur. At this point, the Officer-in-Charge (OC) of Jirighat PS Mr S C Kaman came out and tried to persuade the people to disperse. However, people demanded talk with the authorities from Manipur as the battalion was stationed in that state. Accordingly he informed administration of Jiribam sub-division. A team led by OC of Jiribam PS Mr L Khagen Singh, an officer of Manipur police commando Mr O K Yumnam and another officer of crime investigation department (CID) of Manipur police was sent from Jiribam. At the arrival of the Manipur delegation the blockade that lasted only half an hour from 9am to 9.30am was lifted to hold talk. As a result of the talk that was held at the office of the local village defence party (VDP) the officers who came from Manipur apologized to Mr Biwas and the public on behalf of the assaulting soldiers. They also promised that some money would be paid to Mr Biswas for repairing his bike and such incident would never be repeated again; but it was on the conditions that Mr Biswas or the people should not complain to any authorities and courts.

Mr Biswas’ bikes’ registration number was AS 11 F 2993 and one of the cars of soldiers borne the registration number MN 02 A 4695.

It is learnt that the soldiers belong to 22 IRB stationed at Kadamtala under Jiribam PS in Manipur. They were returning from Kumbhirgram airport in Silchar where they went escorting Mr Chartolien Amo, member of Manipur legislative assembly (MLA) from Churachandpur constituency.

The local people told the BHRPC that they did not believe the promises made in order to lift the blockade as it came with veiled threats that the victim should not seek redress. Mr. Biswas appeared mentally traumatised and talking incoherently. He was very concerned. The physical injuries that were caused to his body by punching and kicking were by no means negligible, though it appeared lesser than the wound he sustained at his heart by being humiliated at the marked place in front of so many people who revered him so much. He was very concerned that the soldiers may harm his family, particularly his two young children, aged about 7 years and 10 years and were studying at class II and V respectively. He kept repeating that his two kids had to go to school and that is why he did not want to talk with reporters and human rights defenders.

It is clear that the soldiers, prima facie, committed many offences including the crime of attempt to murder and crime against public peace and tranquillity and violations of the right to life with dignity and security of person as enshrined in Article 21 of the Constitution of India and many international human rights instruments to which India is a state party.

The police officers also violated his right to seek truth, justice and reparation in case of violations of any rights recognised by either the Indian domestic laws including the constitution or the international human rights laws by not registering a first information report (FIR) and trying to hush it up. The right to truth, justice and reparation is also guaranteed under the constitution as well as many international instruments.

The BHRPC sent a complaint on 2 April to the National Human Rights Commission (NHRC) and other authorities including the prime minister of India, chief ministers of both Assam and Manipur, union ministers for home affairs and defence expressing concern over the safety and security of the victim, his family and particularly his school going kids and other witnesses and urged them to take appropriate actions to ensure their physical and psychological integrity and safety, a prompt and impartial inquiry/investigation and registration of first information report (FIR) leading to truth, adequate reparation to the victims and prosecution of the alleged perpetrators in accordance with the criminal law of the land and universally recognised rules of criminal jurisprudence and other appropriate measures to ensure that such incident does not recur in the future.

2 April 2012

Guwahti-6,Assam

For further information please contact:

Waliullah Ahmed Laskar

wali.laskar@gmail.com

+91 94019 42234

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam

January 2, 2012
Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam

On the International Human Rights Day on 10 December, 2011 Barak Human Rights Protection Committee (BHRPC) conducted a programme to felicitate the survivors of torture and organized violence (TOV) at Banga Bhawan, Silchar (Assam) as a part of the therapeutic intervention. The felicitation programme was a joint event with a public discussion on the human rights situation in Barak valley and the Universal Declaration of Human Rights conducted to observe the International Human Rights Day. 14 survivors were ceremonially honored by the eminent persons of the valley. The event was chaired by Mr. Manindra Sankar Gupta, chairperson of BHRPC.

 At the outset Mr. Sadique Mohammed Laskar, joint secretary of BHRPC introduced the audience with the concept and methodology of testimonial therapy and its effectiveness in the fight against torture.

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam

 A printed booklet containing the Bengali translation of the Universal Declaration on Human Rights was distributed among the audience. Mr. Neharul Ahmed Mazumder (Secretary General of BHRPC) elaborated some parts of the UDHR and informed the audience about various laws against torture. He added that democracy is possible only in a torture free environment. Mr. Imad Uddin Bulbul emphasized on the fact that BHRPC was working to makeBarakValleyfree from all forms of torture and ill treatment.

 Mr. Faruk Ahmed Barbhuiya, member of BHRPC read the testimony of Mr. Ranjit Roy who was the victim of torture by the personnel of Central Reserve Police Force (CRPF). Mr. Ranjit Roy is a shopkeeper who survived from the jaws of death. Mr. Roy was called upon the stage and honored with garlands and Uttaria (Shawl), at the same time slogans against torture as well as slogans hailing Mr. Roy’s struggle for justice raised in the hall. Mr. Imad Uddin Bulbul handed over the beautifully printed testimony to Mr. Ranjit Roy. The hall was filled with claps and slogans. Ranjit also delivered a short speech.

 Mr. Nehar Uddin’s testimony was read by Mr. Mrinal Kanti Shome. He was tortured by his neighbours and lost his mental and physical strength. His wife was also raped. He was a day labourer and a very poor person. However, the police was allegedly negligent to their complaint. His wife’s testimony was read earlier in private. Both of them were honoured with garlands and Shawls. Their testimonies were handed over by Mr. Manindra Sankar Gupta and Ms Bithika Acharya. The hall filled with the loud sounds of claps and slogans.

 Mr. Hussain Ahmed Laskar, a poor mason apprentice, was tortured by the personnel of the Indian Army in front of his family members and in Army camp. Hussain lost his physical and mental strength. His testimony was read by Asab Uddin Barlaskar and thereafter he was called upon on the stage and honored. His testimony was handed over by Mr. Abid Raja Majumder.

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam

 Mr. Choudhury Charan Gorh, an activist who was tortured by an organized group of miscreants for protesting against corruption. His testimony was read by Aftabur Rahman and was handed over by Mr Abid Raja Majumder.

 Mr. Nurul Alom Laskar, a driver by work, was tortured by the CRPF personnel. His testimony was read by Miss Sarmila Singha and was handed over by Mr Mujammil Ali Laskar.

 Mr. Ataur Rahman Majumder, a teacher, was tortured by the Indian Army personnel. His testimony was read by Miss Nasim Akhtar Majumder and was handed over by Mr Mujammil Ali Laskar.

 Mr. Surman Ali Laskar, a farmer, was tortured by the Indian Army personnel. His testimony was read by Miss Perbin Sultana and was handed over by Mr. Makabbir Ali Barbhuiya.

 Mr. Riaz Uddin Choudhury was tortured by the Indian Army personnel. His testimony was read by Mr. Najir Hussain Laskar and was handed over by Ms Bithika Acharya.

 Mr. Raju Kar was tortured by the Indian Army personnel. His testimony was read by Mr. Biswajit Das and was handed over by Mr Imad Uddin Bulbul.

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam on 10 December, 2011

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam on 10 December, 2011

Mr. Alom Hussain Barbhuiya, a businessman, was tortured by the Indian Army personnel. His testimony was read by Mr. Abdul Wakil and was handed over by Mr Shourindra Kumar Bhattacharya.

 Mr. Sams Uddin Laskar, a student, was tortured by the Indian Army personnel. His testimony was read by Mr. Snigdha Nath and was handed over by Mr Manindra Sankar Gupta.

 Mrs. Kimati Rani Das a housewife and a victim of domestic violence by her in-laws. Her testimony was handed over by Ms Bithika Acharya.

 Mr. Shyamendra Malakar, a victim of torture by organized group of miscreants nurtured by the political bigwigs and hence allegedly backed by the police, was also felicitated.

 Each of them was called upon the stage and honoured with garland and Shawl. The audience loaded the hall with the sounds of claps and slogans.

 Miss Mina Begum a victim already honoured delivered a short speech describing how she came out of trauma by testimony therapy. Some eminent persons and activists   delivered speeches on various aspects of human rights and the works of BHRPC.

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam on 10 December, 2011

Survivors of TOV felicitated as a part of therapeutic intervention at Silchar, Assam on 10 December, 2011

A minor patient allegedly raped by government doctor in Cachar, Assam

December 31, 2011

Barak Human Rights Protection Committee (BHRPC) received information about rape of a minor girl by Physician In-Charge of Dholai Primary Health Centre (PHC) in Cachar, Assamat his residence about 4 pm on 27th November 2011. Miss Rajia Begun, (name changed to protect identity) a minor girl, went to a pharmacy at Dholai Bazar, where Dr. Paul privately practices, for medical consultation for her ailment. Dr. Paul asked her to visit him at his residence in the evening. Accordingly she went there, accompanied by her sister-in-law (brother’s wife), where she was allegedly raped by Dr. Paul. Later, on the same day she filed a complaint at the Dholai Police Station and the case has been registered as First Information Report No. 302/11 dated 27/11/11 under Section 367 of the Indian Penal Code, 1860. The victim has not yet been provided with any compensation and there is also the risk of impunity involved in the case.

BHRPC first received information about the case from a news paper report published on 28 November 2011 in local newspapers. BHRPC then contacted the victim and her relatives, and collected certified copies of the FIR and deposition of the victim under section 164 of Cr. P C, 1973 before a Judicial Magistrate (First Class) at Silchar.

According to the information thus gathered, the victim Miss Rajia Begum is a student of class X, aged about 17, daughter of Khalil Uddin and a resident of villageIslamabadunder Dholai Police Station in the district of Cachar,Assam. The alleged perpetrator is Dr. Dilip Paul of village Sadagram under Dholai Police Station. He is the In-charge physician of Dholai Public Health Centre at Dholai Bazar,Cachar,Assam.

According to Miss Rajia Begum on 27 Nov, 2011at about 4pm she along with her sister-in-law Nur Nahar (name changed to protect identity) went to a pharmacy at Dholai Bazar to consult a physician. There they met Dr. Dilip Paul who asked about her illness and advised her to go to his residence in the evening. The victim also stated that accordingly she went to the residence of Dr. Paul accompanied by Mrs. Nur Nahar (name changed to protect identity) in the evening. Dr. Paul asked her to come inside the room but did not allow her sister-in-law inside. He asked Mrs. Nur Nahar to wait outside.

 According to the deposition of the victim before the magistrate, after she entered the room, Dr. Paul closed the door and asked her to lie on the bed and close her eyes. She also stated that Dr. Paul then suddenly put his hand on her mouth and forcibly raped her against her will. She claimed that she could not cry out for help because of the tight grip of Dr. Paul’s hand on her mouth. According to her, when he finished, his grip fell loose and she pushed him aside and ran out by opening the door.

She also stated that she told her sister-in-law all about the incident. They both went home crest fallen and humiliated. Later, on the same day they went to the Dholai Police Station accompanied by her brother and lodged a complaint which was registered as mentioned above. The case has been assigned to Sub-Inspector of Police Mr. Bimal Shaikia for investigation.

It is reported that even after more than one month of the incident and registration of the FIR the police failed to arrest the accused and the officer in charge of the police station has not forwarded to a Magistrate empowered to take cognizance of the offence on a police report, a report under section 173 of the CrPC.

BHRPC thinks that the information provided in the FIR and in the deposition U/S 164 of the Cr.PC reveals prima facie case of violations of fundamental right to life and personal liberty provided under Art 21 of the Constitution of India along with an offence punishable under section 376 of the IPC.

This is also a prima facie case of violations of the universally recognized human rights as stated in the Universal Declaration on Human Rights and the UN Declaration on Violence Against Women as well as the provisions of legally binding International human rights treaties, to which India is a state party, including ICCPR, UN Convention Against Torture, Cruel, Inhuman and Degrading Treatment and Punishment, The UN Convention on Elimination of All Forms of Discrimination Against Women and The UN Convention on the Rights of the Child.

Prisoner assaulted for protesting against corrupt practices inside Silchar central jail in Assam

December 25, 2011

Prisoner assaulted for protesting against corrupt practices inside Silchar central jail in Assam (India)

Barak Human Rights Protection Committee (BHRPC) received information that an inmate in the Central Jail, Silchar (Assam) was badly beaten up on 30 December, 2010 allegedly for protesting against ill-treatment of prisoners and corrupt practices of jail officials. Mr. Bidyut Kumar Paul, who was admitted in the central jail on 30 January, 2006 to serve rigorous imprisonment for life, was beaten up, kicked and punched by some other inmates and jail officials that caused him serious injuries. He was given some medical treatment afterwards. However, no investigations of the incident conducted and no actions against the alleged perpetrators were taken. There were concerns that the incident might be repeated and some day Mr. Paul might be hurt seriously.

 According communications dated nil, 28-2- 2011 and 29-3-2011 claiming to be written and signed by Mr. Paul and addressed to the BHRPC, Mr. Paul, son of Bipad Ranjan Paul was a resident of village­ Srikona, in Cachar district inAssam(India). He was sentenced to rigorous imprisonment for life by the Court of Sessions, Cachar, Silchar in Sessions case no. 71/2003 under section 302/34 of the Indian Penal Code (IPC) vide judgment and order dated 30-1-2006. He was also kept in the jail under judicial custody as an under trial prisoner in connection with another case bearing number 2c/2011. Under these circumstances he had been living in the central jail, Silchar since 30 January, 2006.

 According to the communication, he was assaulted because he raised voice against ill-treatment of inmates and corrupt practices of the officials inside jail. He also referred to a news story published in the 24 February, 2011 issue of the Dainik Nababarta Prasanga, a local daily news paper published in Bengali from Silchar (Assam). The story claimed that one Biru Laskar alias Rois Ali (aged 40, son of late Abdul Bari Laskar and a resident of village Tulargram Part-I, PS: Sonai,Cachar,Assam), a released prisoner served sentence in the central jail, Silchar informed the journalist that there was massive irregularities gong on in the jail. Mr. Laskar also stated that he had witnessed the assault on Mr. Paul in the said jail on 30 December, 2010.

 According to the information furnished both in the communication of Mr. Paul and statement of Mr. Laskar cited in the news story, the Jail Superintendent, the Assistant Jailor, the Ward Matron, the Police Guards and some prisoners formed an immoral nexus inside the jail. According to the statement made by Mr. Laskar, everything including narcotic drugs and alcohol was available in the jail and could be bought if one had sufficient money.

 It was also stated that the prisoners had to pay rupees 2000 (two thousand) per head per month as bribe to that nexus if s/he wanted to get proper accommodation and food. If anyone could not or did not pay the bribe, would be placed near the dirty lavatory and would get lowest quality of food. If anyone protested against this corrupt should face inhuman treatment and torture. The complain box was put just before the visit of the chief judicial magistrate, otherwise it was kept hidden. There was an unauthorized fixed rate for visit by relatives and outsiders at rupees 50.00 (fifty) per head. The food items, medicines etc. were sold outside depriving the prisoners. Manual box was also kept invisible. The canteen inside the jail had been converted to an unauthorized business stall of the Jail Superintendent, they claimed.

 Mr. Paul expressed fears in his communication to the BHRPC that he might be assaulted again and again and he might even be killed by the jail officials in connivance with some other inmates since he made himself inconvenient by raising his voice against the irregularities and corrupt practices.

 BHRPC is also very concerned about the safety and physical and psychological integrity of Mr. Paul and other inmates. BHRPC thinks the condition in the central jail Silchar is inhuman and in violations of the human rights of prisoners as enshrined in the Constitution of India and time and again upheld by the High Courts and the Supreme Court in India as well as universally recognized human rights standards in relation to the treatment of prisoners.

The World Human Rights Day observed in a unique way

December 11, 2011
The World Human Rights Day observed in a unique way

The World Human Rights Day observed in a unique way

Survivors of torture honoured as a therapeutic intervention

October 4, 2011

A ten-days long workshop on Testimonial Therapy of the survivors of torture and organized violence was comducted at Silchar, Cachar, Assam. As a part of the workshop a ceremony to honour the survivors of torture and organized violence, who are struggling for justice was held at Banga Bhavan, Silchar on the 13th September, 2011. The program was organized by the joint endeavors of Barak Human Rights Protection Committee (BHRPC), Peoples Vigilance Committee on Human Rights (PVCHR), Rehabilitation and Research Center for Torture Victims (RCT) and National Alliance on Testimony Therapy (NATT). Eminent personalities of the locality attended the Honor Ceremony. The meeting was presided over by Mr. Manindra Sankar Gupta (Retd. ACS), the Chairperson of BHRPC.

 At the outset Mr. Sadique Mohammed Laskar , the Joint Secretary of BHRPC, delivered the welcome address, and also gave a brief idea on Testimony Therapy. The president took chair and thereafter Mr. Lenin Raghubanshi, Secretary General and Director of PVCHR, Ms Sirin Sabana Khan of PVCHR, and Mr. Imad Uddin Bulbul took chairs at the dais.

 Mr. Neharul Ahmed Mazumder, Secretary General of BHRPC, delivered his speech on the purpose of Testimony Therapy and the Honor Ceremony. He dwelt on the need of psychological rehabilitation of the traumatized survivors of torture and organsed violence which aspect is neglected in human rights works. Hence, there was an urgent need for such type of trainings to serve the victims in a better way.

 Ms. Shirin Sabana Khan in her very brief speech told about the experiences of working with BHRPC, and about the pattern of torture and human rights violation in the valley. She also added that there remained a lot to work with BHRPC. Ms. Khan further told about various aspects of testimony therapy.

 Mr. Nirmal Kumar Das, member of BHRPC, read out the testimony of Mr. Kalam Uddin Choudhury, who is a survivor of torture by the personnel of the Indian Army. Though all the doors are shut by the human rights institutions of India, still Kalam is fighting for justice in legal forum and trying to attract the helping hands of the organizations and individuals. Mr. Kalam is a poor mason apprentice and lost his mental and physical strength to a large extent after the excruciating experience of torture. Kalam was called upon on the stage and honored with garlands and Uttaria (shawl), at the same time slogans against torture as well as slogans hailing Kalam’s struggle for justice raised in the hall. Mr. Lenin Raghubanshi handed over the beautifully printed testimony to Mr. Kalam Uddin Choudhury, The hall was filled with claps and slogans.

 The testimony of Miss Mina Begum Choudhury, a secondary victim of organized violence was read by Miss Chaya Kumari, a member of PVCHR. Mina lost her brother in this incident, and her parents alongwith her uncle also faced inhuman torture. She lost her property and shelter. Still she is facing hard as her opponents are very close to the heavyweight political leaders of the locality. Mina got warm welcome when she appeared on the stage with loud slogans, claps, garlands and uttaria. Miss Sirin Sabana Khan handed over the testimony to Mina, which was beautifully printed.

 The testimony of Mrs. Alimun Nessa, another survivor of torture, was read out by Sadique mohammed Laskar. Alimun Nessa lost her husband due to cruel inhuman torture in police custody. The torture to which her husband was subjected was witnessed by her. The human rights institutions has never paid heed to her complaints seriously, though all the enquiries conducted into the incident found the involved policemen guilty. Alimun, in spite of, all limitations such poverty and ignorance is still fighting for justice.

 Mr. Parvez Khasru Laskar read out the testimony of Mr. Fariz Uddin Barbhuiya, who was tortured by the personnel of 147 Battalion of Central Reserve Police Force (CRPF) with his family members. Fariz is a retired CRPF personnel himself and runs his business near his house situated opposite to the CRPF camp. Fariz got warm welcome with slogan against torture and praising his bravery. He was honored with garlands and uttaria (shawl). The Chairperson then handed over the beautifully printed testimony to Mr. Fariz. He then delivered a speech thanking the organizers. He added that he has got half justice after being able to express his feelings in such a forum, and that he has got energy to expedite his fight for justice.

 Mr. Waliullah Ahmed Laskar, a member of BHRPC, delivered his short speech on various provisions of national and international laws against torture. He also added that the impact of torture on individuals and in society is very serious, it creates trauma in individual and mass mind.

 After that Mr. Dholu Mia Choudhury, father of Mr. Kalam Uddin Choudhury was escorted to the stage by Mr. Abdul Rahman Laskar and Mr. Abul Hussain Barlaskar, members of BHRPC. He was welcomed with garlands, Uttaria (shawl) and loud claps and slogans from the audience. Mr. Dholu Mia, a secondary victim of torture had the bitter experience of torture, when he saw his son, the only earning member of his family paralyzed after torture by the personnel of Indian Army. He received his beautifully printed and decorated testimony from Mr. Imad Uddin Bulbul.

 Mrs. Aftarun Nessa Barbhuiya, wife of Mr. Fariz Uddin Barbhuiya, a secondary victim was escorted to the stage by N. Kamalini and Sarmila Singha, members of BHRPC. She received warm welcome with garlands, Uttaria, claps and slogans. She received her testimony from Ms. Shirin Sabana Khan, which was beautifully printed and decorated.

 Mr. Imad Uddin Bulbul, advocate and Legal Advisor of BHRPC delivered his speech. He told that torture victims must raise their voices and testimony therapy will help to uphold the suppressed voices. He also added that BHRPC has crossed many hurdles, and it will do a lot with PVCHR and RCT.

 Mr. Anup Kumar Choudhury (Advocate) and Mr. Shyamal Dey (social activist) delivered their speeches and appreciated the organizers for arranging such a unique program in the valley.

 Mr. Lenin Raghubanshi delivered a pithy speech where he expressed the experiences of working with BHRPC. He cited various examples of victims becoming activists after testimony therapy, and encouraged the survivors to raise their voice against torture. He also brought to light the various issues and problems in Barak Valley.

 The meeting ended after the address from the chair and vote of thanks.

Sadique Mohammed Laskar

Barak Human Rights Protection Committee (BHRPC)

Silchar, Assam

18 September, 2011

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.