EDITED BY HARSH DOBHAL | MATHEW JACOB | ANUPAM KISHORE
HUMAN RIGHTS LAW NETWORK NEW DELHI, INDIA RUGGED ROAD TO JUSTICE A SOCIAL AUDIT OF STATE HUMAN RIGHTS COMMISSIONS IN INDIA Volume-III, February 2014 © Socio Legal Information Centre* ISBN 81-89479-86-5
Edited By Harsh Dobhal Mathew Jacob Anupam Kishore
Copy Editing Neha Bhatnagar Salina Wilson Pritisha Borah Sukrita Lahiri
Research and Coordination Jammu and Kashmir: Md. Faisal Kadri, Altaf Mehraz Gujarat: S. H. Iyer, Gagan Sethi, Rohit Prajapati, Prasad Chacko, Manjula Pradeep Tamil Nadu: Ossie Fernandes, Henri Tiphagne, P. Uma, P. Vedhavalli, S. Sreejith Bihar: Rajeshwar Ram, Vidyanand Ram, Fr. Phillip Manthra and Mahendra Yadav Maharashtra: Kranti LC, Avinash Gaikwad, Simpreet Singh Himachal Pradesh: Anand Sharma, Sunder Singh
Design Mahendra Bora
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Disclaimer The views and opinions expressed in this publication are not necessarily views of the HRLN. The presentations in this publication have been paraphrased from oral, sometimes impromptu, speeches made by the participants. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. *Any section of this volume may be reproduced without prior permission of the HRLN/SLIC for public interest purposes with appropriate acknowledgement. Acknowledgements
t the outset, we express our deep gratitude to the victims and their family members for reposing their faith in the Independent People’s Tribunal on the functioning of State Human Rights Commissions, and for displaying remarkable courage in coming out in front of the jury Ato narrate their tales of horror fearlessly. We are grateful to hon’ble jury members, some of whom were contacted at the last minute, who took time off from their busy schedule, travelled all the way to different places, gave patient hearings to victims, studied all the cases meticulously and finally put down their incisive findings and recommendations. This volume owes everything to members of the HRLN units in Jammu & Kashmir, Gujarat, Tamil Nadu, Bihar, Maharashtra and Himachal Pradesh. Despite all odds and busy court schedules, HRLN lawyers and social activists are doggedly pursuing their dream for justice and peace. They have worked tirelessly for days and nights. They were faced with the challenging task to convince the victims’ families to come forth and depose before the tribunal. Their guidance and leadership in each state has been remarkable, before and after the tribunal process. Much thanks to the volunteers and students who have contributed immensely through research, documentation and logistics. We would like to acknowledge the untiring efforts of collaborating organisations in these states. Our special gratitude to Ossie Fernandes and Henri Tiphagne of Tamil Nadu, Gagan Sethi and Rohit Prajapati of Gujarat, Avinash Gaikwad and Simpreet Singh of Maharashtra, Father Philip Manthra, Mahendra Yadav, Vikas Pankaj, Rajeshwar Ram and Vidyanand Ram of Bihar for their massive support and encouragement in the entire process. These individuals have provided the much-needed strength with all possible help in order to make the tribunals as meaningful forums.
INTRODUCTION 3 We are also thankful to all the following organisations which collaborated with HRLN towards organising the IPTs: Jammu & Kashmir – Islamic Relief and Research Trust (IRRT); Koshish (NGO); Kashmir Centre for Social and Development Studies (KCSDS); Inner Call; Humanity Welfare Organisation Helpline. Gujarat – Anandi; Behavioural Science Centre (now known as Human Development Resource Centre); Centre for Social Justice–Jan Vikas; Darshan; Gujarat Lok Samiti; Jan Sangharsh Manch; Jyoti Karmchari Mandal; Navsarjan; Paryavaran Mitra; Paryavaran Suraksha Samiti; Sahiyar; and Gujarat Vidyapeeth. Tamil Nadu – Human Rights Advocacy and Research Foundation (HRARF); All India Network of NGOs and Individuals Working with National and State Human Rights Institutions (AINNI); Social Awareness Society for Youth (SASY); Society for Integrated Rural Development (SIRD). Bihar – Koshi Nav Nirman Manch; Janta Soochna Kendra; National Campaign on Dalit Human Rights (Aidmam & Ndmj); Koshish; Bihar Women Network; Apnanapan; Dalit Vikas Abhiyan Samiti; Centre For Social Equity & Inclusion. Maharashtra – Vimukta Bhatke Sangharsh Mahasangh Maharashtra Pradesh; Satya Shodhak Samiti Amaravati; Akhil Bhartiya Hizara Association Niyojit; Lok Adhikar Andolan Ahmednagar; Ramushi Berad Haq Parishad Maharashtra; Adivasi Fhase Pardhi Sanghatan Ahmednagar; National Alliance for People’s Movement. Himachal Pradesh – CORD, Dharamsala; Akhil Bhartiya Harijan League, Himachal Pradesh. Each state-wise chapter of the social audit report is the cumulative outcome of a prolonged process where a number of individuals have contributed. Conceptualising the IPT process, identifying the cases, approaching victims and organisations in the far- flung areas, convincing and bringing them to the forum, meticulous documentation of cases and finally drafting the report has been an ardous journey. We also would like to thank Sonal Makhija and Swagata Raha for their earlier study on KSHRC and KSCW which inspired our research methodology. We have tried to give credits to as many persons as possible in the following chapters but it is difficult to mention all names here. We are grateful to all of them. We thank Rekha Koli for filing RTIs and follow- ups in every state, thus contributing to the background research. Last, but not the least, we thank our colleagues and friends Salina Wilson, Pritisha Borah and Sukrita Lahiri for painstakingly going through the draft, making corrections and giving final touches to this volume.
—Harsh Dobhal, Mathew Jacob & Anupam Kishore
4 SHRC: SOCIAL AUDIT REPORT–III Contents
Introduction 9 jammu and kashmir Khairun Nisa, Anupam Kishore, Harsh Dobhal
EXECUTIVE SUMMARY 33 chapter-I patterns of violations in jammu and kashmir and the functioning of j&k SHRC 44
CHAPTER-II Testimonies 72 expert comments 92 chapter-III Jury Report 106 gujarat Salina Wilson, Ayesha Khan, Mathew Jacob
EXECUTIVE SUMMARY 115 chapter-I patterns of violations and functioning of GSHRC 124
CHAPTER-II Testimonies 144 expert comments 186 chapter-III Jury Report 200
INTRODUCTION 5 Contents
Tamil Nadu Anupam Kishore, Harsh Dobhal, Mathew Jacob
EXECUTIVE SUMMARY 211
chapter-I patterns of violations and functioning of tnSHRC 220
CHAPTER-II Testimonies 248
expert comments 286
chapter-III Jury Report 292
bihar Pritisha Borah, Anupam Kishore
EXECUTIVE SUMMARY 300
chapter-I patterns of violations and functioning of BSHRC 308
CHAPTER-II Testimonies 326
expert comments 366
chapter-III Jury Report 372
6 SHRC: SOCIAL AUDIT REPORT–III Contents maharashtra Naresh Gosavi, Salina Wilson
EXECUTIVE SUMMARY 381 chapter-I patterns of violations and functioning of MSHRC 390
CHAPTER-II Testimonies 406 expert comments 442 chapter-III Jury Report 448 himachal pradesh Sukrita Lahiri, Salina Wilson
EXECUTIVE SUMMARY 455 chapter-I patterns of violations and functioning of hpSHRC 462
CHAPTER-II Testimonies 474 expert comments 486 chapter-III Jury Report 492
Conclusion 499
INTRODUCTION 7
INTRODUCTION
he Constitution of India provides for the fundamental rights to its citizens. These rights and other social laws can be further referred to as human rights and the State being the guarantor of these rights. For decades together, human rights lawyers and activists have been using the courts to assert these rights and hold the TState accountable for instances of violations. Since early 90s, India witnessed a shift in the socio-economic agenda and the policies of liberalisation, privatisation and globalisation set in. As the country increasingly found itself closer to the idea of western democracy and its institutions, the Indian State started adhering to prevalent international norms of development and human rights.
The establishment of the National Human Rights Commission (NHRC) through the Protection of Human Rights Act (PHRA) in 1993, followed by establishment of State Human Rights Commissions (SHRCs), was one such step by the Indian government to express its commitment to protect and promote human rights. Under Article 370 of the Constitution of India, according to which, no law enacted by the Parliament of India, except for those in the field of defence, communication and foreign policy, will be extendable in Jammu and Kashmir unless it is ratified by the state legislature of Jammu & Kashmir. As accordingly most of the provisions of the Protection of Human Rights Act were included in the Jammu & Kashmir Protection of Human Rights Act (J&K PHRA), and were passed by the Jammu & Kashmir Legislative Assembly in the year 1997, and thus the Jammu & Kashmir State Human Rights Commission was constituted in the State. The commission was envisioned to be an independent, credible, transparent and accountable body that will oversee and monitor the human rights situation and contribute towards new policies for upholding the same.
INTRODUCTION 9 According to the United Nations, the national human rights institutions (NHRIs) should play a critical role “in promoting and monitoring the effective implementation of international human rights standards at the national level.” The foremost concern for such institutions to effectively function is their independence and autonomy. They can be created either under the Constitution or a statute. In India, the statutory route has been the preferred mechanism for establishing the majority of the human rights institutions (HRI).1 However, these HRIs structurally depend on central and state governments for finances and appointments. The civil society organisations (CSOs) and the non-governmental organisations (NGOs) have constantly echoed their concerns for these commissions not being independent bodies as envisaged in the Act. The civil society has no role to play in the implementation of any of the functions of these institutions. HRIs are supposed to be uniquely positioned between the government and civil society organisations and be independent of the influence of both. However, this can be complicated as the commissions are supposed to be constituted by the State as well as funded by them.2 As Anne Smith describes: …if an NHRI is seen as being too close to the government or holding an agenda dictated by government departments, especially those who provide the funding, then they will be viewed by NGOs and the civil society at large as simply a puppet of the government and, therefore, damage their credibility. Conversely, if a NHRI allows NGOs to influence its workings such that an overly close relationship develops between the two, a NHRI will simply be seen as another “pro-NGO” ...Notwithstanding, if it is deemed to be pro-NGO, the NHRI’s credibility in the eyes of the most powerful group, the government, will be diminished. (Ibid, 209) The commissions need to operate fearlessly and follow their mandate of upholding human rights. Despite the fact that these institutions are dependent on the State for finances, some degree of independence with regard to the functioning of these bodies could be ensured through a transparent and more democratic appointment process, ensuring plurality in appointments, establishment of independent investigation wing, involvement of credible and reputed human rights activists in various capacities etc. Unfortunately, HRIs in India are clearly allied with the State. They have effectively become an instrument of the State and have been largely viewed as puppets of the State. One can refer to K.G. Kannabiran for a further understanding of the same. In an article published in the Economic and Political Weekly in 19923, Kannabiran argued that the creation of such institutions was due to international pressure on India. India is constantly criticised for its human rights record, and therefore needs an institution that legitimises the exploitative orders of the inhumane state agencies. India has therefore created bodies which guard and supervise the political system, whilst having no intention of reducing human rights violations. These are bodies with a mandate to protect and promote human rights but which will actually act like a shield for the state by giving the appearance of setting its human rights records straight in front of the international community. ...the government obviously doesn’t propose to give up its present policy. Then the present proposal is one of those familiar political sleight of hand devices like the appointment of commissions of enquiry under the ineffective and over-worked Commissions of Inquiry Act 1956. A human rights commission is not going to resolve the political crises. Until these are resolved, violence by the State is bound to continue ... If the government is really concerned about setting right its human rights record it has to take serious steps to rebuild the existing institutions, namely, the courts, instead of merely multiplying institutions. In fact it is more the
10 SHRC: SOCIAL AUDIT REPORT–III responsibility of persons who regularly interact with these institutions, such as lawyers, public interest and human rights groups, jurists and academics to exert pressure on these institutions. The human rights record can never improve by the setting up of a commission without changing the existing social order. The debate on the setting up of a human rights commission should lead to a review of the functioning of the justice system and attempts have to be made to rebuild these institutions. The setting up of a human rights commission as a response to criticism of the government’s human rights record will at best be a formal act. This will not reduce human rights violations, but may be used to cover up such violations. (ibid, 2093) What Kannabiran argued in 1992 is still valid two decades later. Despite the creation of 23 state human rights commissions and a National Human Rights Commission, a National Commission for Minorities, a National Commission for Scheduled Castes, a National Commission for Scheduled Tribes, a National Commission for Women, a National Commission for Protection of Child Rights etc, the human rights record of the State has actually worsened. However, India has attained a high level of legitimacy and acceptance through the establishment of these commissions. These commissions have seldom been successful in promoting and protecting human rights. Be it the cases of disappearances in Assam and Jammu & Kashmir, killings by army and paramilitary forces in Kashmir, Manipur, West Bengal and Chhattisgarh, farmer suicides in Maharashtra and Andhra Pradesh, land acquisitions and mining in Orissa and Jharkhand, droughts in Rajasthan and the rotting of food grains in Haryana, atrocities against dalits and tribals, crime against women, pogrom in Muzaffarnagar or the Batla House encounter in New Delhi, all that the commissions have done is seek a report from the Government of India or respective state government concerned. In some cases, they have carried out investigations and issued recommendations but these are seldom abided by. ‘Paper Tigers’ or ‘Toothless Tigers’ are the words that came up somewhat rampantly for these commissions during the consultation meetings held with various human rights groups across India. With mere recommendatory powers can we expect any more from these commissions? The images of human rights activists protesting in front of the NHRC during the Batla House encounter are still fresh. Can justice be expected from an institution which is another organ of the perpetrator, i.e., the State? Or, in the struggle for justice, will approaching human rights institutions simply result in re-victimisation from the same forces that are accused of the violation? The NHRC, being insensitive to the human rights issues, has asked the accused to carry out the investigation into the violations. In other words, the NHRC has asked the police to investigate themselves, and then submit a report. There is no doubt that there is a clear lack of political will amongst the commission members. This can clearly be correlated with the political appointments in the commissions which will be discussed later in this section of the report. The action taken by the NHRC under the leadership of Justice J.S. Verma during the Gujarat riots was exemplary. But there are not many success stories to count and mention with regard to the interventions made by the NHRC and SHRCs. During various meetings and Independent People’s Tribunals (IPTs) held on the functioning of the SHRCs across the country, a mixed feeling came to the fore concerning these institutions. The participants in these meetings included various civil society groups, human rights organisations and individuals, lawyers, members of the media, retired judges of high courts and the Supreme Court and other eminent civil society members such as academics and individuals from other professions. While one part of civil society condemned the current functioning of the commissions and asked for their closure for reasons of huge investments, political appointment and wastage of tax payers’ money, the other group, though understanding and condemning the current functioning of the commissions, proposed a strengthening and streamlining of these bodies.
INTRODUCTION 11 That there is a need for human rights commissions cannot be denied. One of the prime reasons is that they are quasi-judicial bodies with powers enshrined through the Constitution of India. They act as an accessible justice mechanism, an alternative to court proceedings which in India are very lengthy, time-consuming and unimaginably expensive. The NHRC and SHRCs have the power of a civil court under the Code of Civil Procedure, 1908. The commissions also have the power to move the high courts and the Supreme Court. The Protection of Human Rights Act, 1993 (PHRA) and J&K PHRA, 1997, specifically mentions the establishment of a human rights court in each district. In some states they have been notified but are not yet working, whilst in other states they are yet to be notified and not much information is available in the public domain with regard to their functioning. These human rights courts mostly exist just on paper, as revealed by a number of civil society groups during the IPT process. Globally, HRIs have gained enormous acceptability. They are a recent phenomenon and their establishment can be dated back to the early 1990s. The international community had constantly moved for the establishment of national infrastructures for the protection and promotion of human rights, for bodies which would be constant watchdogs on matters related to human rights. This much was apparent at the Vienna World Conference on Human Rights in 1993. Later in December 1993, the UN General Assembly adopted the principles relating to the status and functioning of national institutions for the protection and promotion of human rights, famously known as the Paris Principles. The Paris Principles are the benchmarks which clearly lay down procedures for the establishment and functioning of national human rights institutions. In the early 1990s, India was transitioning itself into a global market through newly adopted policies of liberalisation, privatisation, and globalisation. At the same time India was under enormous international pressure concerning its human rights records. In a neo-liberal framework, it was of utmost importance for India to be accepted as a potential market and partner, and to have the adequate infrastructure that promotes and protects human rights. The first mention of the potential establishment of a human rights commission in India was in the election manifesto of both the Congress and Bharatiya Janata Party in 1991. The Congress party came to power in 1991 and in the year 1992 started having discussions on establishing human rights commissions. On March 16, 1992, speaking in the Rajya Sabha, the then Home Minister, Mr. S.B. Chavan, mentioned that the proposed commission was to counter the false and politically motivated propaganda being spread by foreign and Indian civil rights agencies. On April 24, 1992, Mr. V.N. Gadgil, the official spokesperson of Congress Party, stated that the commission’s findings would act as correctives to the biased and one-sided NGO reports and would be an effective answer to politically motivated international criticism.4 The above statements by the home minister and the spokesperson of the ruling party make evident the international pressure under which the Act was passed, and the fact that the Indian State had no real interest in providing the institution with sufficient powers, resources and autonomy. The purpose of the establishment of the commissions and the enactment of the PHRA 1993 seems to have been driven by international pressure and to showcase India’s pro-human rights image to the international community. The State, in the meanwhile, has appeared to be continuing with the rights violations. There were hardly any discussions held before the enactment of the Act. Almost all the major civil society organisations were excluded from the seminars and consultations that took place. The government’s background note on the establishment of the commissions was not made public and placed before the Parliament. The government didn’t even follow normal parliamentary procedures of
12 SHRC: SOCIAL AUDIT REPORT–III first referring a bill to the Parliamentary Standing Committee for scrutiny, but instead rushed the bill to be adopted.5 It was later referred to the Parliamentary Standing Committee where it faded from notice. The NHRC was established on September 28, 1993, by a Presidential Ordinance. Two months later, a fresh bill was submitted to Parliament and on January 8, 1994, after a relatively indifferent parliamentary discussion, the “Protection of Human Rights Act, 1993” got Presidential approval and came into effect.6 Since the inception of the PHRA, 1993, there have been talks about its amendment. The Act clearly contradicts the Paris Principles, which will be discussed in detail in the later sections of this report. In 1996, the Kerala High Court submitted a draft proposal for amendments to the NHRC’s procedural regulations after conducting a spot study of various sections of the NHRC’s Law Division. A year and a half later, McKinsey & Co. prepared a report highlighting what it found to be the commission’s main problem – a severe backlog of pending cases – and suggesting solutions. In May 1999, the Staff Inspection Unit (SIU) conducted a staff study of the commission, the first since its inception, at the request of the Ministry of Home Affairs. Unfortunately, few, if any, of the extensive recommendations made in these reports have been implemented.7 Minor amendments were made in the year 2000 and 2006. It’s now almost two decades since the inception of the commission. To date, 23 SHRCs and an NHRC have been created. Section 21 of the PHRA, 1993, states, “A state government may constitute a body to be known as the...” whereas Section 3 of the J&K PHRA, 1997, makes it mandatory to constitute a SHRC in the state of Jammu & Kashmir. In other words, it is not binding on states to establish an SHRC except the state of Jammu & Kashmir. The northeastern states of Mizoram, Meghalaya, Nagaland, Tripura and Arunachal Pradesh still don’t have SHRCs. Furthermore, the commissions in many states are defunct and dormant for several reasons; for example, no appointments being made for long periods of time, no infrastructure by the government etc. Examples of this can be seen in the SHRCs of Manipur and Himachal Pradesh. Many SHRCs came into existence as a result of civil society movements and public interest litigations. When the NHRC was contacted in this regard, it claimed that it had already requested the state governments to establish SHRCs. The NHRC and SHRCs are parallel bodies and the NHRC is not an appellate body for the SHRCs. The following report is a social audit of the functioning of six SHRCs in Jammu & Kashmir, Gujarat, Tamil Nadu, Bihar, Maharashtra and Himachal Pradesh. The objective for and methodology of undertaking the social audit is mentioned below. This section will also give a critical understanding of the PHRA, 1993 and J&K PHRA, 1997 vis-à-vis the Paris Principles with examples from the six states. A social audit of all the SHRCs and the NHRC is being conducted by the Human Rights Law Network (HRLN) in collaboration with several civil society groups across India. The social audit reports of the remaining SHRCs and the NHRC will be published in subsequent volumes.
OBJECTIVE
The NHRC and SHRCs were constituted following the PHRA, 1993 and J&K PHRA, 1997 (in the state of Jammu & Kashmir), with an aim to provide access to justice to a number of people who find it difficult and expensive to approach Indian courts. However, despite this mechanism being in place, these commissions have not been able to achieve desirable results, and the human rights situation has continued to deteriorate. Most of the violations reported to these commissions are committed by the country’s law enforcement agencies and security forces. The commissions suffer from a number of
INTRODUCTION 13 handicaps, such as a lack of autonomy, politically-willed appointments, inadequate resources and no independent investigative mechanism, thus making them incapable of effectively addressing violations. Over the years, there has been a huge trust deficit between these commissions and the people in general, and rights groups in particular. The country’s image as a vibrant democracy will be at stake if such insti- tutions fail to live up to people’s expectations. The courts being difficult to access for the poor and the marginalised of this country, these commissions with quasi-judicial functions, play an important role in the justice delivery mechanism. Despite existing for almost two decades, there is very little information available with regard to their functioning, finances, appointment, investigation, awareness etc. These commissions could have addressed the human rights situation in a much better and effective manner even if the powers were limited but exercised fully and effectively. As the neo-liberal policies and the process of globalisation unfolded throughout the 90s and uptil now, this onslaught has translated into systematic demolition of the welfare State, cutting down on welfare schemes, undermining health, education and social security, while appeasing the financial markets and increasing armament and armed force interventions. All this while the State has been vigorously playing the role of the protective shell for corporate houses and multinationals whereas more and more people are dying of hunger, farmers committing suicides, people facing displacement with an erosion of their life support systems. At the same the anti-terror and security laws have been found to be grossly misused against minorities, tribals and other marginalised communities. Thus the country finds itself in a situation where during the last two decades, the unfolding of the process of globalisation has robbed people of their livelihoods, and every section of society has borne the brunt of the rapid march of communal forces and terror related acts , the ordinary citizen’s cry for justice has multiplied.8 In the context of this deteriorating human rights situation in the country one would expect the HRIs to play a robust role. It is in this backdrop that we felt it was imperative to study these institutions and evaluate their functioning. The role played by these institutions in matters of grave human rights abuse has been a concern for the human rights and civil liberties fraternities of this country.
RESEARCH METHODOLOGY
Since this publication is not merely a research project but rather an outcome of an ongoing endeavour to work with HRIs with an aim to strengthen towards an effective justice delivery mechanism, we have very closely looked at the functioning of the SHRCs in 18 states. The indicators we decided to evaluate the functioning of commissions comprised independence, autonomy, appointments, complaint han- dling mechanism, finances, relationship with civil society and human rights education. The perception of the human rights organisations and individuals as well as the victims and complainants were taken into consideration and they formed the tools of initial assessment. Meetings were held with a number of senior lawyers and retired judges to seek their advices for required changes in the PHRA and J&K PHRA, 1997 (in the state of Jammu & Kashmir). An attempt was also made to understand commis- sions’ working based on the international guidelines and the Paris Principles.9 The research methodology10 adopted for the purpose of the report included analysis of data on the work of the commissions, like annual reports, cases and orders/recommendations passed by the commissions and related media reports. Additionally, we interviewed staff, members and chairpersons of the commissions and members of civil society organisations. We approached legal experts and former members and chairpersons of the SHRCs to throw light on the working of a commission. In cases where we were denied access to information, RTI applications were filed under the Right to Information Act,
14 SHRC: SOCIAL AUDIT REPORT–III 2005. The information collected was tested against the set standards and objective of the parent statute, the Protection of Human Rights Act, 1993, and the International Guidelines.
A. Document Analysis Primary data from the states of Gujarat, Bihar, Jammu & Kashmir, Maharashtra, Tamil Nadu and Himachal Pradesh was gathered; this included cases, complaints, orders/recommendations passed and annual reports of last two years. We gathered information about the administrative setup, complaints received and disposed, significant work done, budgets, and details of staff from the annual reports of the SHRCs.
B. Applications under the Right to Information Act, 2005 We also obtained information about the total number of complaints received and disposed off and the details of the staff working at the SHRCs through RTI applications. We have requested for information on annual reports, annual budgets, action taken reports, and recommendations passed by the SHRCs in certain cases. The SHRCs have denied us information on specific reports and recommendations on the grounds that these are confidential.
C. Media Reports We tracked media reports on the commissions from 2006-2011 so as to assess the nature of their inter- ventions in matters concerning human rights issues.
D. Independent People’s Tribunal In each state, to start the process of participatory analysis of the functioning of the SHRCs, a consulta- tion meeting was held. This meeting has the representation of people who have constantly engaged with the SHRCs through complaints and research, and also a set of lawyers and activists from various districts within the state that are trained in the procedures of approaching the commissions. This meet- ing helps by providing a detailed situational analysis of the commission’s functioning, capacity building of the people and the formation of a civil society working group which will engage with the commission at various stages of the campaign and work towards strengthening and streamlining it. For the purpose of this study a format was developed and was sent to civil society organisations, legal experts, and the chairperson, members, secretary and staff of the commissions. The questions ranged from constitution of the commission, knowledge of the staff on laws pertaining to human rights, initiatives in the last two years, powers, complaint mechanisms and relationship between the commission and civil society organisations. The questions were framed to assess the independence, function, transparency and accessibility of the commissions. Samples of representative complaints were documented with all the available information in the testimony format. The objective of organising the IPTs is to engage with and look at the functioning of these commissions critically through the eyes of the victims, experts and human rights activists, thus to catalyse the SHRCs to function as effective, efficient, transparent and accountable institutions that address human rights violations. The IPT exercise aims at putting together evidence dispassionately and comprehensively, so that cases of human rights violations not addressed adequately by the SHRC mechanism can be brought before the courts and orders can be obtained to address specific failures and problems. IPTs were held in all the six states. The cases deposed before the jury in the IPTs pertained to
INTRODUCTION 15 diverse sections of people covering most part of the states. Thus the effort was made to select cases from as many parts of a state as possible that represent a certain pattern of violation. The selection process meticulosly ensured that cases of all vulnerable sections like women, dalits, tribals, children and members of minority communities were taken up in the IPTs. Similarly, it was ensured that the different and diverse patterns of violations such as custodial torture, extra-judicial killings, rape, violence against women and children, dalits and tribals, matters related to land rights, etc were represented in the IPT. Further, these cases were deposed before a jury panel comprising retired high court judges, senior advocates, academicians and other renowned civil society members. Along with the victims, experts who have thorough knowledge and experience of the functioning of the SHRCs also deposed before the jury. After listening to the victims and experts, each jury passed its observations and recommendations with regard to the functioning of the commission and suggested ways of strengthening the institution.
PARIS PRINCIPLES
The Paris Principles are the principal source of normative standards for HRIs. In 1991, the United Nations organised an international workshop, which resulted in the formulation and adoption of these principles. They are a detailed set of guiding principles for establishing and maintaining strong and effective HRIs. The Paris Principles were subsequently endorsed by both the UN Commission on Hu- man Rights and the UN General Assembly.11 They started the process of serious international coopera- tion and standardisation of HRIs. The Paris Principles are broad and general. They apply to all HRIs, regardless of structure or type. They provide that a national institution should be established in the national constitution or by a law that clearly sets out its role and powers and that its mandate should be as broad as possible.12 They lay down four factors needed to establish and monitor the HRIs, namely independence through legal and operational autonomy, independence through financial autonomy, independence through appointment and dismissal procedures and independence through pluralism of composition.13 The first principle under the head ‘Composition and Guarantees of Independence and Pluralism’, clearly states that the HRIs should be pluralistic and should co-operate with a range of social and political groups and institutions, including non-governmental organisations, judicial institutions, professional bodies and government departments. It clearly mentions the involvement of HRIs with all stakeholders in civil society. It also clearly mentions the role of government departments as ‘advisors’. The composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights, particularly by powers which will enable effective cooperation to be established with, or through the presence of, representatives of: (a) Non-governmental organisations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organisations, for example, associations of lawyers, doctors, journalists and eminent scientists; (b) Trends in philosophical or religious thought; (c) Universities and qualified experts; (d) Parliament; (e) Government departments (if these are included, their representatives should participate in the deliberations only in an advisory capacity).14
16 SHRC: SOCIAL AUDIT REPORT–III The third principle under this heading mentions the independence through legal and operational autonomy of the HRIs. While it is important to have an HRI, it is equally important to empower it with constitutional powers to carry out and enforce its mandate. In order to ensure a stable mandate for the members of the national institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution’s membership is ensured.15 It has to be noted that the idea of pluralism, or diversity, in the membership of a human rights commission figures strongly in the Paris Principles. Pluralism, through the participation of people from a variety of professions across of civil society and from members of different marginalised groups, ensures a diversity of viewpoints within the commission and helps legitimise the roles of these commissions. Maintaining pluralism is one of the most important factors in guaranteeing the efficacy of an HRI. It fosters independence from the government, and helps an HRI deal with complaints against the State with a reduced worry that the institution will be improperly influenced by the State. The second principle under the heading ‘Composition and Guarantees of Independence and Pluralism’, states that the HRIs should have an infrastructure that allows them to carry out their functions. Particular importance is attached to the need for adequate funding to allow the institution to be functionally and financially autonomous. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to financial control which might affect its independence.16 The Paris Principles clearly lay down the factors that should be involved in the establishment and monitoring of the HRIs, with special emphasis on plurality and independence. The principles also mention the functioning of the HRIs. The various functions of the HRIs are described in the principles as “responsibilities”, suggesting that these are the things that institutions are obliged to do.17 The functioning of the HRIs can be broadly categorised beneath the headings of recommendations and proposals to the government, the protection and promotion of human rights, acting as a human rights monitoring agency, the promotion of international cooperation, and compliance of the state with regard to various human rights statutes and treaties, human rights education, and functioning as a quasi-judicial body (not a compulsion). The third clause, under the heading ‘Competence and Responsibilities’, clearly lays down the responsibilities of the HRIs. “ (a) To submit to the Government, Parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institution may decide to publicise them; these opinions, recommendations, proposals and reports, as well as any preroga- tive of the national institution, shall relate to the following areas: (i) Any legislative or administrative provisions, as well as provisions relating to judicial organisa- tions, intended to preserve and extend the protection of human rights; in that connection, the national institution shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures;
INTRODUCTION 17 (ii) Any situation of violation of human rights which it decides to take up; (iii) The preparation of reports on the national situation with regard to human rights in general, and on more specific matters; (iv) Drawing the attention of the government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the government; (b) To promote and ensure the harmonisation of national legislation, regulations and practices with the international human rights instruments to which the state is a party, and their effective implementation; (c) To encourage ratification of the above-mentioned instruments or accession to those instru- ments, and to ensure their implementation; (d) To contribute to the reports which states are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations and, where necessary, to express an opinion on the subject, with due respect for their independence; (e) To cooperate with the United Nations and any other organisation in the United Nations sys- tem, the regional institutions and the national institutions of other countries which are competent in the areas of the protection and promotion of human rights; (f) To assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles; (g) To publicise human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of all press organs.”18 The Principles provide that HRIs should make recommendations and proposals to governments on various matters relating to human rights, including existing and proposed laws, human rights violations and the national human rights situation in general. They require national institutions to promote teaching and research on human rights and organise public awareness and education programmes. The Paris Principles also address methods of operation and by implication, the powers of national institutions. They are entitled to consider any issue falling within their competence without authorisation from any higher authority. They are entitled to hear any person or gather any evidence needed to consider matters falling within their competence. Furthermore, HRIs are called on to publicise their decisions and concerns, as well as to meet regularly.19 “(a) Freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner, (b) Hear any person and obtain any information and any documents necessary for assessing situations falling within its competence; (c) Address public opinion directly or through any press organ, particularly in order to publicise its opinions and recommendations; (d) Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly concerned; (e) Establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions; (f) Maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible
18 SHRC: SOCIAL AUDIT REPORT–III for the promotion and protection of human rights (in particular, ombudsmen, mediators and similar institutions); (g) In view of the fundamental role played by the non-governmental organisations in expanding the work of the national institutions, develop relations with the non-governmental organisations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialised areas.”20 The Paris Principles do not require HRIs to have a ‘quasi-jurisdictional’ function – that is, to handle complaints or petitions from people whose human rights are alleged to have been violated. However, where HRIs do have this function, the Paris Principles list particular obligations: — To seek an amicable settlement through conciliation, a binding decision or on the basis of con- fidentiality; — To inform petitioners of their rights, and available remedies, and promote access to them; — To hear complaints and transmit them to competent authorities; and — To make recommendations to competent authorities.21 The Indian NHRC and SHRCs have quasi-jurisdictional functions. This will be discussed in detail later in this section. A complaint can be brought to the notice of a commission by individuals, their representatives, third parties, non-governmental organisations, associations of trade unions or any other representative organisations. In such situations, the HRIs need to abide by the above mentioned four points. From the discussion above, it can be easily established that the Paris Principles clearly lay down the framework for HRIs. It can be said that the Paris Principles are the first systematic effort to enumerate the role and functions of HRIs. While it can be called an ideal document with regard to the establishment of HRIs, it clearly lacks guidelines highlighting the functioning of the HRIs. For example, the Principles are silent with regard to cases against armed forces. The Paris Principles are a good starting point for discussion with regard to HRIs. The role of the Indian State is much larger than what has been prescribed for in the Principles for an effective and strong HRI.
PROTECTION OF HUMAN RIGHTS ACT 1993 and J&K PROTECTION OF HUMAN RIGHTS ACT 1997
The narrative on the inception of the PHRA, 1993 and J&K PHRA, 1997 has already been dealt with in the earlier sections. While some practitioners call it a token and a toothless act, others are of the belief that whatever limited provisions are prescribed for in the Act, if utilised to the fullest, they can lead to- wards the protection and promotion of human rights. This section is an attempt to glance through the Act and get an understanding with regards to the powers and functioning of the commissions. The definition of human rights22 as per the PHRA and J&K PHRA is very clear. It reflects the fundamental rights enshrined in the Constitution of India and the Universal Declaration of Human Rights. It refers to rights relating to the life, liberty, equality and dignity of the individual. The underlying objective of the Act, as the name suggests, is to protect human rights in India. The Constitution of India is a repository of human rights available to citizens and persons living in India. The majority of these rights are available against the state, in that, it is the duty of the State to guarantee the protection of these rights. The Constitution also sets out the manner in which these rights can be enforced against the State.23 The NHRC and several SHRCs have been established through the PHRA,
INTRODUCTION 19 1993, and Jammu & Kashmir SHRC through J&K PHRA, 1997.24 Section 21 of the PHRA, 1993, with regard to the establishment of SHRCs, has stated that, “A state government may constitute a body to be known as...” Legally it is not binding for states to have SHRCs except in the State of Jammu & Kashmir where Section 3 of the J&K PHRA, 1997 makes it mandatory to constitute a SHRC. Many states like Karnataka and Uttar Pradesh have seen public interest litigations (PILs) filed by civil society groups for the establishment of a commission. Higher judiciary, on various instances, have asked state governments to establish the SHRCs. The NHRC ought to consist of a chairperson who has been a Chief Justice of the Supreme Court, one member who is, or has been, a judge of the Supreme Court, one member who is, or has been, a judge of a high court and two members who have practical knowledge and experience of human rights.25 The members of other national commissions are deemed to be the members of the NHRC.26 The chief executive officer of the commission is a secretary general.27 Similarly, the SHRCs ought to consist of a chairperson who has been a chief justice of a high court, one member who is, or has been a judge of a high court or district judge with a minimum of seven years of experience, and one member (three for Jammu & Kashmir SHRC under Section 3 of J&K PHRA, 1997) having practical knowledge and experience of human rights.28 Similar to the NHRC, the chief executive officer of the state commission is a secretary.29 The appointment of chairperson and the members of NHRC is done by a committee consisting of the Prime Minister, Speaker of Lok Sabha, Minister of Home Affairs, Leader of the Opposition in Lok Sabha, Leader of the Opposition in Rajya Sabha and Deputy Chairperson of Rajya Sabha.30 The duration of the term of the chairperson and the members is five years.31 Similarly, the appointment of the chairperson and members of the SHRCs is done by a committee consisting of the Chief Minister, Speaker of the Legislative Assembly, Minister in-charge of the Department of Home Affairs and the Leader of the Opposition in the Legislative Assembly.32 The duration of the term of the chairperson and the members is five years.33 With regard to the functions and powers of the commissions, they have the power to look into any matter of human rights brought before them through the victim or on behalf of the victim by a complainant.34 Though it is largely argued that the commissions can only look into complaints against public servants as mentioned in Section 12 (a) (ii), Section 12 (a) (i) of PHRA, 1993, and Section 13 (a) (ii), Section 12 (a) (i) of J&K PHRA, 1997, clearly says that it has the obligation to look into any complaint of violations of human rights. It also has the power to carry out suo moto inquiries.35 The commissions have dismissed a large number of matters stating that they are sub judice. They have the power to intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court.36 The commissions have the power to review and study the safeguards provided by the Constitution, treaties and other international instruments on human rights and institutions and make necessary recommendations to the government.37 The commissions should involve and encourage the efforts of non-governmental organisations and institutions and spread human rights literacy among various sections of the civil society.38 The commissions, while enquiring into a complaint, have the power of a civil court.39 Every proceeding before a commission is deemed to be a judicial proceeding.40 A commission, for the purpose of investigation into a matter, can utilise the service of any officer or agency.41 The appointed officer or the agency needs to submit a report before the commission within a stipulated time and on that report the commission, after satisfying itself with the facts (cross verifying and asking for replies from different parties) will issue recommendations.42 The recommendations can direct the concerned for payments
20 SHRC: SOCIAL AUDIT REPORT–III of damages, initiate proceedings for prosecution, and/or move the high court or the Supreme Court.43 The recommendation issued by the commission has to be supplemented with a compliance report by the government normally within a period of one month.44 However, in dealing with the complaints against armed forces, the commission can only seek a report from the central government. Obtaining the report, the commission can either proceed with it or make its recommendations to the central government which is duty bound to furnish the action-taken report normally within a period of three months. The commission should then publish its report together with the recommendations and action taken. It has to be noted that other sections of this law are not applicable with regard to complaints against the armed forces.45 The commissions are duty bound to furnish annual reports, and special reports if needed. The reports have to be tabled on the floor of the house by the government along with the action taken report. If any recommendation has not been accepted by the government, the reason has to be mentioned.46 One of the ground-breaking sections under the PHRA, 1993 (Section 30) and J&K PHRA, 1997 (Section 20) is the establishment of Human Rights Courts (HRCs). The HRCs were envisaged for a speedy trial in cases of human rights violations. In each district a court of session may be specified as a human rights court. For each human rights court, there should be a specified public prosecutor or an advocate with not less than seven years of practice.47 The above sections have clearly laid out the broad understanding of the Paris Principles, the PHRA, 1993, and J&K PHRA, 1997. Based on the Paris Principles, the PHRA, 1993, and the J&K PHRA, 1997, the following section tries to understand the functioning of six State Human Rights Commissions of Jammu & Kashmir, Gujarat, Tamil Nadu, Bihar, Maharashtra and Himachal Pradesh. While looking into the functioning of the commissions, an attempt is also made to refer to the powers of the PHRA, 1993, and J&K PHRA, 1997, vis-à-vis the Paris Principles. For the same purpose the indicators used are Establishment, Independence, Appointments and Composition, Infrastructure, Relationship with Civil Society, and Accessibility.48 Examples from the abovementioned SHRCs will be quoted wherever deemed fit for a clearer understanding.
ESTABLISHMENT
The Paris Principles clearly state that for the establishment of the HRIs, they should be part of the law and entrenched in the Constitution. This legitimises the independence of a commission and enshrines it with legal powers. Following this, the NHRC and SHRCs were established under the PHRA, 1993 and Jammu & Kashmir SHRC under J&K PHRA, 1997. The reasons for the PHRA and how it came into existence have already been discussed in earlier sections of this report. Although the PHRA, 1993, and J&K PHRA, 1997, lay the ground for the establishment of the commissions, it contains many flaws contradicting the Paris Principles, in terms of independence, appointments, engaging with civil society etc. Civil society groups lobbied for amendments to be made to the PHRA, 1993, and J&K PHRA, 1997, and for it to be in accordance with the Paris Principles but, to date, they have been ignored. There has been a clear decline in the way the commissions function over the years if we look at the nature of complaints taken up and action taken hitherto. As mentioned, the social audit process brings out that the commissions’ failures are not only because of the weak PHRA (it refers to both PHRA, 1993, and J&K PHRA, 1997) but also because of the lack of political will of the commissions. Positive clauses with regard to the effective powers of the commissions have not been put into practice. While the PHRA refers to engagement with civil society
INTRODUCTION 21 organisations and encourages human rights work in the country, the commissions appear to be happy to ignore civil society and be content being an extension of the State. The PHRA and the establishment of the commissions serve as mere showpieces to portray a positive image to the rest of the world. It has been an extremely sad state of affairs. India has yet to make its National Human Rights Plans of Action, an action it committed to at the World Conference on Human Rights in Vienna. The lack of will to uphold its own mandate has affected the entire state of affairs, and people who held great hopes for the commissions now tend to take the old route to justice back with the courts. There are visible gaps in the jurisdictions of the national and state commissions. The complainant is unaware of whom to approach in which case. Sometimes cases have been addressed by the NHRC whilst in other instances similar cases have been transferred to a SHRC. It also has to be noted that transfer of a case means closure at the NHRC’s end and is shown as a disposed of case, while in reality the complainant is still seeking justice.
INDEPENDENCE
A commission’s independence reflects its effectiveness. It establishes its legitimacy and credibility. In- dependence from the government and any other private interest is the strong foundation on which a commission needs to be established. The indicators of independence are appointment mechanisms, terms of office, mandate, powers, funding, investigation etc. The PHRA clearly violates the Paris Principles when it comes to independence. The NHRC and SHRCs have been established by the PHRA and are answerable to the Parliament. The line between the legislative and the executive is very thin. Instead of answering to an independent authority, the NHRC and SHRCs are responding to the government of the day. The NHRC and SHRCs report to the Ministry of Home Affairs, the same ministry which also oversees the work of the police, immigration, communal harmony, border management, special laws for terrorism and insurgency etc. Although most complaints lodged with the commissions are made against these departments, the NHRC and SHRCs appear to be bound by restrictions to move against them. This makes the commissions totally ineffective and allows a huge scope for government invasion into the commissions’ functioning. The PHRA fails to make the NHRC and SHRCs independent bodies. They receive instructions from government ministers, since they are required to report to them by virtue of their appointments having been made by them. There has been no recorded evidence of the NHRC and SHRCs taking suitable action against the government of the day or of moving a court to action. In most of the complaints of grave human rights violations, in which state parties are perpetrators, matters are closed by simply recommending petty compensations. The commissions’ silence on the issues of armed killings and torture in various states, arbitrary arrests, sedition laws etc., are clear examples of the same. While the NHRC did brilliant work to take suo-moto action in the Gujarat carnage and conducted the investigation, its silence in the court was evident of government pressure. In the report from Jammu & Kashmir, it can be seen that the NHRC and SHRCs have been quiet observers of secret killings and disappearances. There have been many incidences of enforced disappearances, rapes and encounter killings towards which J&K SHRC as well as the NHRC have been a silent spectator. Neither the SHRC nor the NHRC have brought to book the guilty security force personnel who committed rape in Kunan Poshpora village in Kupwara district more than two decades ago. Victims’ narrations and the commissions’ proceedings have been documented in order to investigate the role of the latter. One such heart wrenching case of disappearance came up during the investigation of commission’s proceedings.
22 SHRC: SOCIAL AUDIT REPORT–III The two victims Mohammad Shafi Rah & Mushtaq Ahmed Rah, businessmen in Nepal, were arrested in the year 2000 by the D.I.G. Police and the Intelligence Bureau in Nepal, where mass arrest of Kashmiris was taking place at that time. Out of the 27 arrestees, only 10 were released and the rest are still missing, including the above victims. The FIR had been lodged in two police stations, namely at Zaina Kadal and Shaheed Gunj. The complaint at both the commissions i.e. National Human Rights Commission and J&K SHRC had been sent on September 17, 2003. However the complaint has not yet been disposed of in either of the commissions. The family members especially the father Abdul Ahad Rah is still in search of their missing sons, more than a decade after their disappearance. The commission in Jammu & Kashmir is scared to move against the security force personnel that are torturing and killing civilians and committing rape regularly, on the basis of the impunity enjoyed by them under AFSPA. Even the recommendations passed by them, though in very few cases and only compensatory, have not been adhered to. In Bihar, the SHRC has not moved an inch in the huge volume of cases filed by many human rights groups on the issues of dalit atrocities. In cases of custodial deaths and brutal police tortures, only meager compensation amount has been recommended but still no prosecution has taken place of such guilty police officers and security forces. Most of the cases are, shockingly, still pending for many years. The story is no different in Tamil Nadu, Maharashtra and Gujarat. Because commissions are not guaranteed their independence, they remain mere showpieces of the State. Payment of compensation is, on principle, not accepted by many civil society organisations. For an act of crime by State forces taxpayers’ money is wasted, while the State forces and agencies continue to operate in the same way. There are no recorded instances available which prove that departmental proceedings or criminal charges have been initiated against the accused. The State and the commission are hand in glove when it comes to the protection of the accused fellow from their department. The commissions have zero independence when it comes to investigation into a matter of human rights violation. The investigation mechanism of the commissions is completely flawed in nature. In the reports from various states compiled in this edition, one can find several instances where the perpetrators of the crime and the accused were asked by a commission to clarify the charges against them and furnish a report. Upon receiving a complaint of police torture, a commission has asked the same police to investigate the matter, and based on the report has closed the matter. Or, upon receiving a complaint of negligence by a government department leading to violation of human rights of the victims, the commission has asked the same department to conduct the investigation and furnish the report. It has been very shocking to learn that commissions seldom conduct independent investigations. This results not only in biased investigation and manipulations of facts, but in many instances in the form of a re-abuse of the victims for having approached the commission to file a complaint against the accused. Investigations of complaints concerning human rights violations are different to criminal investigations. Even in criminal matters, human rights violations can be investigated independently of the criminal charges. In such cases we need not have the police doing all the investigation. It can be conducted by a team comprising of doctors, academicians, psychologists, human rights activists etc. Financial autonomy of a commission guarantees its overall freedom. This also means an independent way of operating, and no commitment to the government. But the commissions in India depend solely upon the Ministry of Home Affairs. The commissions don’t raise their funds on their own. The commissions should determine their budget and channel funds for the same. In the national plan, a separate fund is to be kept for the commissions to operate on. Financial independence will ensure the commissions are not accountable to the government but rather to the people. The financial situation
INTRODUCTION 23 of the commissions is very disappointing. The staff members are also appointed after requests to the government, and are sent to these commissions on deputation, more often on punishment posting. In brief, the commissions are completely under the control of the government of the day. Be it with regards to appointment, investigation, finance or their functioning. The idea of the Paris Principles, for an independent autonomous commission in India, has been defeated in the past two decades.
APPOINTMENT AND COMPOSITION
The composition and appointment process of the commissions is the most crucial element in determin- ing the independence and adequate functioning of a commission. The PHRA contradicts the Paris Prin- ciples on the appointments to and composition of the commissions. It has legitimised the appointments in such a way that is always in favour of the ruling government. While the Paris Principles mention the diversity in the composition of the commissions, keeping it positioned between the government and civil society, the PHRA has given all the power to the government with regards to the appointments to the commissions. The provisions laid down by the Paris Principles have already been discussed in the earlier sections of this report. According to the PHRA 1993, the appointment of members to the NHRC is to be conducted by a committee comprising of the Prime Minister, Speaker of Lok Sabha, Minister of Home Affairs, Leader of the Opposition in Lok Sabha, Leader of the Opposition in Rajya Sabha and Deputy Chairman of Rajya Sabha. If we look critically at the appointment committee, four out of six members are from the ruling government. It is evident that a person not acceptable to the ruling government cannot become a member or Chairperson of the NHRC. The story is the same for the SHRCs. With the current provisions, the bias in appointment cannot be dismissed. Most civil society groups see the appointments to the commissions as post retirement benefits for government friendly bureaucrats and judges. The commissions have turned out to be parking lots and means of welfare for the retired bureaucrats and judges. There has been no representation of members of civil society in the existing commissions. Human rights activists are not welcomed onto the boards of the commissions. Members of State forces, who in most instances have been party to or guilty of the crimes investigated, have been in the commissions. Representation of women in the commissions has been a serious worry. No woman has ever been appointed as a chairperson of a commission as per the PHRA. Representation of the marginalised, such as dalits and tribals is also seldom seen. While the commissions deal with a large volume of complaints involving women, dalit and tribal cases, the lack of representation of these sections of society makes them equally vulnerable and marginalised in front of the commissions too. Though the Act mentions the appointment of one member who has knowledge and experience of human rights work, this provision is generally not adhered to. To ensure diversity in the appointment process, there needs to be an engagement between the government and civil society. There needs to be nominations for the commissions which can then be elected by the committee, which again needs to be comprised of members who are independent of the government. While the government argues that there are retired judges in the commissions who provide legitimacy, these judges need to act like advisors for the commissions which should be represented by people who have expertise in human rights and have carried on such work for a considerable amount of time. The composition of the commissions is also not adequate to deal with a large volume of cases. With only a chairperson and a few members, it is impossible to do justice to the complaints that come before the commissions. The commissions now need to move out from the national and state capitals and have
24 SHRC: SOCIAL AUDIT REPORT–III offices at the district level. It is extremely difficult for a person from a far-off village to continuously come to the state capital in order to deal with their case. The complainant incurs a huge amount of expenses in this way. Operating in each district would ensure that the workload of national and state commissions is more appropriately distributed, and hence they would be more accessible to everyone approaching them for justice. The narrative from the six states that we are looking at specifically is not encouraging. The commissions have constantly struggled to have a full board as per the current provisions of the PHRA, 1993 and J&K PHRA, 1997 in the case of Jammu & Kashmir. States like Himachal Pradesh and Tamil Nadu have run for years without a chairperson. In the Himachal Pradesh SHRC, there is no chairperson or members appointed for a long time. It has only one secretary who is on a dual appointment, as he is basically the Lokayukta Secretary and mostly sits in the Lokayukta office, which is situated in the Secretariat in Shimla. The Himachal Pradesh SHRC is practically defunct. With the current situation, it is evident that the commissions are actually at the mercy of the ruling government, whilst civil society, in all regards, is kept at the periphery of the operations. Out of a whole pool of civil rights activists in India, none has ever made it to the NHRC. The international community concerned with the functioning of human rights institutions should look into the matter, the reasons for this are loud and clear. In such a situation commissions are not doing anything but justifying the horrendous acts of the State. The criteria for appointments mentioned are in favour of the ruling government. Appointment to a commission has been laid out in such a way that an entire section of society, people who have been fighting for rights for several decades, have been excluded from the operations of the commissions. For the appointments to be transparent and pluralist in nature there needs to be amendments to the existing PHRA, 1993 and J&K PHRA, 1997. The powers with regard to the appointment and composition have to shift to an autonomous body which looks into the functioning of the commissions. The direct appointment by the executive and the legislative is not desirable and the records of the last two decades show that they have failed to protect and promote human rights in India. The commissions, as they stand, don’t reflect the social and political diversity of India.
INFRASTRUCTURE
Proper infrastructure remains a concern for the commissions in India. They are at the mercy of the government for everything with regard to their operations. Most of the SHRCs operate from the build- ings allotted to them by the state governments. Despite several years of existence none of them have managed to obtain their own dwellings. Most of them are located among other government offices and share an inadequate amount of space. The NHRC, despite having been operational for the past two decades, and despite having a huge building, lacks financial resources and proper knowledge pool of human rights. This is the case with state commissions too. There can be genuine concerns raised when it comes to the infrastructure of the commissions in Bihar, Tamil Nadu, Himachal Pradesh, Jammu & Kashmir, Gujarat and Maharashtra. Very few amongst the commissions have a website. Jammu & Kashmir and Himachal Pradesh do not have a website of its own. For those commissions who do have a website, there is very little information available with regard to the commission. The most operational website of all the commissions is that of the NHRC. It has to be mentioned that most of these commissions are not disabled-friendly. Their presence amongst other state offices makes it difficult for victims to approach them.
INTRODUCTION 25 RELATIONSHIP WITH CIVIL SOCIETY
From the above discussions it can be concluded that the commissions are allied with the governments. They have been set up to be just another government department. While their mandate is for the pro- tection and promotion of human rights, they are just engaged in giving a clean chit to the government and upholding its human rights record. The commissions’ relationship with civil society is very limited and restricted, if infact there is any relationship at all. There is no membership of representatives of civil society in the commissions in any capacity. While conducting the IPTs, the commissions stayed away from the proceedings and in most cases we were told that the commissions are not answerable to civil society and that they are constitutional bodies answerable only to the government. Such is the attitude of these commissions that they seldom engage in any concrete manner with civil society organisaitons and human rights groups. The commissions need to engage in human rights education programmes and build awareness amongst the general public concerning their rights. No commission seems to be carrying out these activities. It was surprising to discover that even some lawyers and human rights activists don’t know the commission’s address in their state. Over the years, the commissions have just fulfilled the bare minimum of their mandate, by being in existence, and they have never reached beyond this. The impression of these commissions being just another government machinery is validated by the fact that they never involve themselves with civil society. For members of civil society, the only way they can engage with the commissions is by way of being a complainant. As mentioned before, the websites are not functional in most cases. Furthermore, the websites are mostly in English, thus making it difficult for the local people to understand them. The attitude of the commission members, and their view that they are supreme authorities, alienates them from the people. Even the most urgent of human rights violations, instead of being immediately investigated by the commission, are simply transferred from desk to desk.
ACCESSIBILITY
Commissions mandated with protecting and promoting human rights ought to be accessible to the people, especially to those belonging to marginalised communities. The commissions should give spe- cial importance to hearing the complaints of such groups. Also, public information should be available and shared with a larger group through various mediums. The commissions in India operate from the state capitals. None of the commissions have shown any intent to move out from the comfort zone of the capital in order to be at district level. For people living in different districts in the state it is increasingly difficult and expensive to come to the state capital again and again for their complaints. There is not a single individual present representing the commissions in the districts. The commissions are not accessible to people with disabilities or to elderly citizens. The commissions in all the states have failed to equip themselves with a diverse staff. Most of the appointments are made by the government and most of the members are men belonging to the higher socio-economic strata of society. It is very difficult for a woman or an individual from the marginalised sections to approach the commissions and seek justice. In grave cases of custodial rape and torture, a woman victim has to address her case to the exclusively male members of the commission. Sensitivity and compassion amongst the members is clearly lacking.
26 SHRC: SOCIAL AUDIT REPORT–III Also the commissions have seldom conducted any activities in the past, whereby the people in far off districts can learn about the existence of the commissions and their powers. For most people, the commissions remain an unknown entity. There is a clear lack of awareness among the common people about these bodies, and therefore most of the complaints lodged with the commissions are sent by civil society groups on behalf of the victims. In accordance with the PHRA, 1993 and J&K PHRA, 1997, for the commissions to be more accessible, it is important that human rights education programmes are conducted in each district by the commissions along with civil society groups. Also, the commissions need to have representatives at district level, making it easier for people to approach them and follow up their cases. The establishment and proper functioning of the human rights courts will also help in this process.
CONCLUSION
The NHRC and SHRCs in India are currently in a grave state of disarray. The hopes of the millions of people who were advocating for these commissions have been turned into despair. While many have al- ready given up the hope of any improvement in the functioning of these commissions and do not want to engage with these institutions, there are yet a large number of activists, lawyers and social workers who for years have constantly engaged themselves with the commissions in an attempt to seek justice, work and campaign towards streamline their functioning and to help make them more effective. The idea of the IPT has been the same; to monitor and strengthen the functioning of the commissions. These IPTs collect and collate a representative sample from each state of the voices of victims of human rights violation and the responses of the commissions. Examining the testimonies of victims from each state will give a clear idea of the functioning of these commissions. The jury reports are also indicative of the fact that reforms are needed in the functioning of these commissions by the way of amendment to the PHRA and by the way of proper compliance with the current provisions in the PHRA. With this attempt, we are hopeful that the idea of a strong commission is possible, whereby the commissions take strong cognisance of their current state of affairs and take necessary actions to protect and promote human rights effectively and efficiently.
Footnotes
1. Makhija & Raha, A review of the working of the KSHRC and KSCW, Accountability Initiative & Daksh, April 2011, also at http://www.dakshindia.org/Dec2009/Daksh%20KSHRC%20KSCW%20Apr%202011.pdf
2. Anne Smith, “The Unique Position of National Human Rights Institutions: A Mixed Blessing?”, HUMAN RIGHTS QUARTERLY, 28 (2006), 904-946, at 909, quoted in Makhija & Raha, A review of the working of the KSHRC and KSCW, Accountability Initiative & Daksh, April 2011, also available at http://www. dakshindia.org/Dec2009/Daksh%20KSHRC%20KSCW%20Apr%202011.pdf
3. Kannabiran, KG, “Why a Human Rights Commision?” Economic and Political Weekly, September 26, 1992, (Commentary). Page 2092-2094
4. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National Human Rights Commission of India”, pages 2-3, SAHRDC, New Delhi
5. Nierhoff, S (2006), “From Hope to Despair: The Complaints Handling Mechanism of the National Human Rights Commission of India”, page 2-3, People’s Watch, Madurai
INTRODUCTION 27 6. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National Human Rights Commission of India”, pages 2-3, SAHRDC, New Delhi
7. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National Human Rights Commission of India”, page 3, SAHRDC, New Delhi
8. Combat Law, “Terror Vs Terror: India Captive in a Sinister Game,” Vol 7, Issue 5, 2008.
9. In 1993, the UN General Assembly adopted Principles relating to the Status of National Institutions (The Paris Principles) which laid down the core minimum standards on competence, composition and responsibilities.
10. Makhija & Raha, A review of the working of the KSHRC and KSCW, Accountability Initiative & Daksh, April 2011. The methodology was inspired by the above mentioned reference and HRLN wants to acknowledge the same. The component of people’s tribunal was bought out specifically in HRLN’s study.
11. General Assembly Resolution 48, U.N. GAOR, 85th meeting, U.N. Doc. A/Res/48/134(1993)
12. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy, OHCHR
13. South Asia Human Rights Documentation Centre (2001), “Judgement Reserved: The Case of the National Human Rights Commission of India”, page 21, SAHRDC, New Delhi
14. Paris Principles
15. Paris Principles
16. Paris Principles
17. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy, OHCHR
18. Paris Principles
19. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy, OHCHR
20. Paris Principle
21. Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy, OHCHR
22. Section 2 Definitions of PHRA 1993 and J&K PHRA 1997
23. Makhija & Raha, A review of the working of the KSHRC and KSCW, Accountability Initiative & Daksh, April 2011
24. Sections 3 and 21 of PHRA 1993 and Section 3 of J&K PHRA 1997
25. Section 3 (2) of PHRA 1993
26. Section 3 (3) of PHRA 1993
27. Section 3 (4) of PHRA 1993
28. Section 21 (2) of PHRA 1993
29. Section 21 (3) of PHRA 1993
30. Section 4 (1) of PHRA 1993
31. Section 6 (1 and 2) of PHRA 1993
32. Section 22 (1) of PHRA 1993
28 SHRC: SOCIAL AUDIT REPORT–III 33. Section 24 (1 and 2) of PHRA 1993
34. Section 12 (a) of PHRA 1993
35. Ibid
36. Section 12 (b) of PHRA 1993
37. Section 12 (c), (d), (e) and (f) of PHRA 1993
38. Sections 12 (h) and (i) of PHRA 1993
39. Section 13 of PHRA 1993
40. Section 13 (5) of PHRA 1993
41. Section 14 (1) of PHRA 1993
42. Section 14 (2), (3), (4) and (5) of PHRA 1993
43. Section 18 of PHRA 1993
44. Section 18 (f) of PHRA 1993
45. Section19 of PHRA 1993
46. Section 20 of PHRA 1993
47. Sections 30 and 31of PHRA 1993
48. The following indicators are part of the Benchmarks as prescribed by the OHCHR through its publication; Assessing the Effectiveness of National Human Rights Institutions, 2005. International Council on Human Rights Policy
INTRODUCTION 29
jammu & kashmir Khairun Nisa | Anupam Kishore | Harsh Dobhal
SL.No 01 City Srinagar Total Cases before Jury 22 Date May 19, 2013 Jury: Justice (Retd.) H. Suresh, Retd. High Court Judge; Mr. Bharat Bhushan, Former Editor, Mail Today; Prof. Mahendra Lama, School of International Studies, JNU
Networking Groups Islamic Relief and Research Trust (IRRT); Koshish (NGO); Kashmir Centre for Social and Development Studies (KCSDS); Inner Call; Humanity Welfare Organisation Helpline The Fact Finding Meeting on the functioning of jammu & kashmir state human rights commission Executive Summary
JAMMU & KASHMIR STATE HUMAN RIGHTS COMMISSION
In the 1990s, Kashmir was the hotbed of activism, militancy and violence with human rights violations abound. Disappearances and encounters on a grand scale were com- monplace. Torture was an accepted part of interrogation and rape was used as a tool of subjugation and intimidation. In the year 1993, the Indian Parliament passed the Protection of Human Rights Act, giving birth to the National Human Rights Commission. Four years later, in the absence of any degree of accountability for human rights abuses, the J&K legislature passed the Protection of Human Rights Act, 1997, and established the State Human Rights Commission. The J&K SHRC was thus born into a violent and challenging environment, and carried out in the name of a struggle for independence and the overthrow of a cruel oppressor on one hand, and under the banner of combating terrorism on the other, with both militants and state security forces committing violations with impunity. It is abundantly clear that the SHRC is restricted in many ways by the lack of political will on the part of the state. Despite the constant State rhetoric, the SHRC suffers from an obvious absence of genuine backing. Since its inception, the State has ignored the commission and its recommendations. Reports and findings of the commission are habitually ignored or overruled. Action taken reports (on the recom- mendations passed by the commission) are rarely if ever delivered as instructed by the Jammu & Kashmir Protection Human Rights Act, 1997. The commission has been in existence for almost 16 years now, and a quick glance at any of the annual reports spanning this time illustrates how the same problems have existed from day one of its inception and that none of these has been adequately addressed in over ten years is damning.
Jammu & Kashmir Protection of Human Rights (J&K SHRC) Act 1997
According to the Preamble of the 1997 Act, it was enacted “to provide for the con- stitution of a State Human Rights Commission and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.” Sections 3-9 provides for a Chairperson and four members to be appointed to the commission. Section 11 of J&K Human Rights Act, 1997, provides for the constitu- tion of investigative team of the commission to look into the complaints coming to the commission. Section 12 talks about the Annual and special reports of the Commis-
JAMMU AND KASHMIR 33 sion. Section 12 of J&K Human Rights Act, 1997, also talks about production of memorandum of the action taken or proposed after the recommendations of the commission. Section 13 describes the Functions and Powers of the Commission. Under Section 19 of the Act, the J&K SHRC may recommend to the government to initiate proceedings for prosecution. It may also approach the High Court for such directions. Compensation is the third mechanism that it can follow. Overall, Section 19 details the steps after inquiry – The commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:- • where the inquiry discloses the commission of violation of Human Rights or negligence in the prevention of violation of Human Rights by a public servant, it may recommend to the Government or authority the initiation of proceedings for prosecution or such other action as the commission may deem fit against the concerned person or persons; the commission, having received a complaint against a member of the armed forces, can only request a report from the Central Government. Having received this report, it can make its recommendations to that Government. It is then up to the Government whether or not to accept and implement the recommendations. (The Commission cannot investigate violations by the armed forces.) • the Commission shall send a copy of its inquiry report together with its recommendations to the Government The Commission shall publish the inquiry report together with the comments of the Government or authority, if any, and the action taken or proposed to be taken by the Government or authority on the recommendations of the Commission. The J&K SHRC has no website of its own where it can disseminate information to the public or other data. The annual reports of the commission are hard to access since they are not easily available in the public domain. Upon first reading, the Act seems to guarantee the commission with a large degree of autonomy and the tools necessary to ensure a strong and independent voice in the struggle for human rights. However, a more thorough examination of the provisions will offer a disappointingly weaker impres- sion. The powerful voice instead appears to be an often ignored whisper with little or no bite.
The Paris Principles
The Paris Principles set out what a fully functioning NHRC is and identified six main criteria that these institutions should meet to be successful: • mandate and competence • autonomy from the government • independence • pluralism • adequate resources • adequate powers of investigation But that has hardly been the case with the human rights institutions in India. They clearly lack the above mentioned requisite criteria as envisioned in the Paris Principles. And as one goes about discuss- ing these criteria in detail in the later sections of this report, it will become clearer as to how these institutions functioning have been derailed because of lack of independence.
34 SHRC: SOCIAL AUDIT REPORT – III divisions of j&k shrc
The most affected victims of human rights violations are the most vulnerable, discriminated and mar- ginalised i.e. Muslims, women and children. In the commission, there are three divisions entrusted with specific tasks, namely administrative, law and investigation wing. The administrative wing is head- ed by the secretary of the commission, the law division by the registrar and the investigation wing by the inspector general of police (IGP). In the J&K SHRC, there is no legal wing and it also does not have an independent investigation unit of its own. functioning
The Government of Jammu & Kashmir issued the notification for the constitution of J&K SHRC in the year 1997.
Powers The commission has the power to inquire, take suo motu cognisance on a petition by victim or any per- son on his/her behalf into the complaints of - violation of human rights and abetment thereof and negli- gence in prevention of such violation1. The commission can also intervene in any proceedings involving any allegation of human rights violation pending before a court with the approval of such court2. The commission is mandated to investigate and redress the many and varied human rights violation carried out in the state and also to take such measures needed to stop the rate of violations. Looking at the functioning of commission since its establishment reveals that the commission has failed to fulfil its mandate. Lack of infrastructure i.e. both financial as well as physical, has contributed to the operational inefficiency of the commission.
Independence
The J&K SHRC being a human rights institution should operate as a separate3 and a distinct entity, able to exercise its independent decision-making power. Also, the independent operating status should be of a level sufficient to permit it to perform its functions without interference or obstruction from any government or private entity. It is hardly the case in J&K as the commission does not have the autonomy to conduct its day-to- day affairs independently. This is also because the J&K SHRC is directly funded by the state govern- ment. The state government controls the funding of the commission which comes in form of grant.
In the state of J&K, the SHRC is actually served by government officials deputed in the commission as staff. The provision of appointment to the commission is completely dependent on the state govern- ment. The state government decides the number of sanctioned post of the commission and appoint- ments are made keeping government interest in mind. Also, the lack of resources leads to undue delay directly affecting the functioning of the commission.
1. Section 13(a) of J&K PHRA 1997 2. Section 13(b) of J&K PHRA 1997 3. Handbook on the establishment and strengthening of national institutions for the promotion and protection of human rights, (1995) UN office of the high commissioner for human rights (pg 10-11)
JAMMU AND KASHMIR 35 Operational Efficiency The commission has made repeated requests to the state government about the scarcity of equipped staff and members, which is badly affecting the functioning of the commission. The shortage of staffs in the commission have resulted in piling up of pending cases, non-replies/late replies from the com- mission in complaints sent to it, and thus erratic functioning of the commission. Also, with the non- availability of adequate resources there is a delay in taking any action.
The Apathetic State of J&K SHRC In July 2006, the then Chairperson of SHRC Justice A. M. Mir resigned in protest against what he termed as “growing human rights violations in the state and non-implementation of commission’s rec- ommendations.” In his resignation letter to the then Governor, Lt Gen (Retd) S. K. Sinha, Justice Mir stated that SHRC was an “eyewash to befool the world community”. He wrote - “During my tenure, not a single recommendation made by the commission was implemented. SHRC has not been able to accomplish the object for which it was established. I waited for long in the hope that my efforts might yield some results.4” Even after repeated reminders by the SHRC in its annual reports to strengthen the commission and calls for numerous amendments in the Act with a view to increase the power and improve the function- ing and efficiency of the commission, it has fallen on deaf ears. The state government’s response to these calls has remained lukewarm and not encouraging to say the least. The state government does not take the SHRC seriously. It lacks basic infrastructure like adequate staffers, an independent research division and investigating agency as so provided in the sub-clause (b) of sub-section (i) of Section 11 of the Act. This clause provides that the government shall make avail- able to the commission investigating staff under an officer not below the rank of Inspector General of Police, and such other officers and staff as are necessary for the efficient performance of its functions. But that has hardly been the case. As in the other states, the SHRC’s role has been limited to merely seeking reports from the police department in the state of J&K. So, to strengthen the Jammu & Kashmir State Human Rights Commission, it needs to be em- powered to independently investigate allegations of abuse by the security forces and militants as a large number of human rights violations are being committed by the armed forces only. The commission should be empowered to investigate even those cases, under review by a court, so that in “disappearance” cases a family is not forced to choose between trying to find their relatives, or, settling for the compensation that the human rights commission would recommend5.
pattern of Human Rights Violations in Jammu & Kashmir
The state of affairs especially that of human rights in the state of Jammu & Kashmir is atrocious to say the least. With so many preventive Acts like National Security Act, Official Secrets Act, J&K Public Safety Act 1978, J&K Disturbed Areas Act 1990, Armed Forces (J&K) Special Powers Act 1990 under force in the state of J&K, the status of human rights has gradually declined especially over last two-three decades.
4. J & K SHRC: In Shambles, India Human Rights Report, Issue-02, October to December 2010, Asian Centre for Human Rights, also available at http://www.achrweb.org/ihrrq/issue2/J&K_SHRC.html 5. Human Rights Watch (HRW) Letter Feb 2009 letter to CM Omar Abdullah – also available at http://www. hrw.org/news/2009/02/09/letter-chief-minister-omar-abdullah
36 SHRC: SOCIAL AUDIT REPORT – III These supposedly preventive Acts gives sweeping power to the state and the security forces to ar- bitrarily detain and arrest people at their free will, and provides impunity to the security forces towards performing such deeds. Even the grievous and inhumane crimes like rape and murder especially done in the name of encounters (that too fake) become immune under the force of these Acts especially the Armed Forces (J&K) Special Powers Act (AFSPA). The Report Alleged Perpetrators – Stories of Impunity in Jammu and Kashmir, released in 2012, is a comprehensive report that examined some 214 cases of human rights violations and the role of around 500 perpetrators – mostly army, paramilitary, and police personnel. The crimes include enforced disap- pearances, torture, rape and custodial deaths. The International People’s Tribunal on Human Rights and Justice in Indian-Administered Kashmir (IPTK) and the Association of Parents of Disappeared Per- sons (APDP) spearheaded the report in response to the structural impunity that prevails in the highly militarised regions of J & K6. The APDP has also been involved in recording the presence of mass anonymous graves in Kashmir. A very important aspect of the human rights violations identified in the report is that in the name of countering militant violence the Indian State authorises security forces to carry out its operations with impunity, often without any adherence to laws. And, in majority of cases, crimes are not officially docu- mented or probed due to the overwhelming reluctance to genuinely investigate or prosecute the armed forces. Even in cases where sometimes it’s done, it’s just for the sake of some monetary compensation but not for granting justice as such7. The killings/encounter killings have become a rule than an exception in the state of Jammu & Kashmir.
The Effect of Militarisation: Extra-judicial Killings Article 21 of the Constitution decrees that “No person shall be deprived of his life or personal liberty except according to procedure by law”, however this law is not always upheld by its enforcers. Custodial deaths, encounter killings are disturbingly common in the state of Jammu & Kashmir. If police, security forces and the army, ‘who are regarded as the custodian and guardian of law’, take issues of law and order into their own hands, including the ‘right to kill’, serious human rights issues are being violated (PUCL, 2010). The security forces continue to enjoy impunity in alleged encounter incidences, and the commis- sion continues to slumber over such cases of gross violation of human rights. According to the police figures only, as so reported in The Times of India Newspaper dated June 13, 2010, there have been 51 allegations of rape against Indian Army men in the period of six years, as of June 13, 2010. In the year 1991, about 100 women were allegedly raped by a 4th Rajputana Rifles unit of Indian Army in Kupwara district alone8. Even though these were allegations only but this has really put a big question mark on the functioning of Indian military forces in the Kashmir valley, which is a clear effect of the
6. Alleged Perpetrators - Stories of Impunity in Jammu and Kashmir, International People’s Tribunal on Human Rights and Justice in Indian-Administered Kashmir, December 2012, also available at http://kashmirprocess.org/ reports/alleged_Perpetrators.pdf 7. Autonomy under siege, 07 January 2014, By Freny Manecksha - Three women in the militarised spaces of Kashmir describe traumatic accounts of sexual violence and their struggles to gain justice, also available at http:// www.himalmag.com/component/content/article/1-web-exclusive/5218-autonomy-under-siege.html 8. Sunday Times of India, 13th June, 2010, also available at http://articles.timesofindia.indiatimes.com/2010-06- 13/special-report/28294951_1_indian-army-human-rights-jaleel
JAMMU AND KASHMIR 37 militarisation of Kashmir and the result of the impunity enjoyed by the armed forces under AFSPA. There have been mass-scale incidences of such extra-judicial killing and disappearances by the armed forces in the Kashmir valley which has been ignored by the state. Few such cases were pre- sented in the FFM organised on the functioning of state human rights commission and the general state of human rights in the state of J&K. One such case was of Abdul Rashid Ganaie of Handwara in Kupwara district, who was extra-judicially executed. The victim was picked up on 20-11-1998 by a patrolling party of 30 Rashtriya Rifles (RR) of Indian Army, was tortured in a nearby house and then shot dead without any rhyme and reason. His wife Mrs. Naseema Begum approached the J&K State Human Rights Commission through a complaint which was instituted on 10-12-2009 under File No. SHRC/2009/35. The complaint was decided vide its decision dated 7th March 2011. The commission concluded in its findings that the case of ex-gratia relief and compassionate appointment is accordingly recommended to state through chief secretary for its implementation. But the authorities have failed to take any action on the decision made by the commission. As such the petitioner approached the court for redressal of her grievances which is pending disposal. Further, there was no recommendation for any prosecution of the perpetrator of the crime. The militarisation has transformed the Indian state into a source of deep insecurity for the citizens – as instruments of the persistent violator of human rights and converted the Indian military into an il- legitimate agent of repression. Both in turn seriously undermine the democratic credential of the state9.
Draconian Laws: Resulting in Torture, Arbitrary Arrest and Illegal Detention
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” —Article 7, International Covenant on Civil and Political Rights
The prohibition of torture as it is formulated in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) to which India is a party and it categorically prohibits the use of torture or ill treatment not allowing for the possibility of derogation. Ironically, the measures of the convenants ensuring human rights are blatantly and routinely flouted in the state of J&K. The incidences of torture in the state of J&K are rampant. One such case of torture when went to the J&K SHRC was deposed in the FFM. The incidence is of Wani Mohalla, Sangrama, Sopore district. The victim Javed Ahmed Bhat, aged 24 was a student of the Institute of Public Health & Hygiene, New Delhi and had come home for his summer vacations in August 2002. He had gone to check his paddy fields. On reaching the Sangrama Chowk he was picked up by men in civilian clothes in a sumo. The victim asked for his release and was told that they will drop him near his home. On reaching Haigam, they turned the vehicle towards Karan Nagar BSF Camp 61 Bn. They blindfolded his eyes with his red t-shirt and was brutally injured. He was then detained in the camp of 61 Batallion BSF, Karan Nagar for 5-6 days and was subjected to third degree torture. Javed Ahmed was then handed over to Sopore Police Station, in a half dead state. Meanwhile the family tried to lodge an FIR but was denied on the pretext that the BSF had already lodged one. However the victim’s father somehow managed to approach the SHO Police Station,
9. As quoted in the Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_ report%20on%20kashmir.pdf
38 SHRC: SOCIAL AUDIT REPORT – III Sopore, but the police officer did not let his son leave. However, due to extreme physical torture Javed Bhat succumbed to his injuries at 5:30 am on August 17, 2002. The victim’s father lodged a case in the SHRC under File No. SHRC/2002/368 on November 25, 2002. The SHRC made a recommendation that the family be provided with a relief of Rs. 1 lakh and a job under SRO 43 on 20-1-2004. After 8 years since the day the SHRC passed its order, the family only got an ex-gratia relief and the benefit of SRO-43 is denied on the pretext that the family has a well-to-do background. Furthermore, no pros- ecution was recommended against the culprit even though it is clear that Javed succumbed to injuries inflicted upon him through torture at the hands of the security forces. More often than not, militarisation is accompanied by repressive laws. This results in the creation of draconian laws. Both of them together i.e. militarisation and draconian laws have such a cataclysmic effect that all the talk of human rights and democracy just flushes down the drain. The Armed Forces (Special Powers) Act, 1958, was put into force in Manipur for containing Naga dissidence. It’s been more than five decades when it was put into effect there. Every law enacted by the central government does not automatically come into effect in the state of Jammu & Kashmir as it needs to get certified by the state legislative assembly first, for it to come into effect. Moreover, this law has been introduced on the same lines in Kashmir, named as Armed Forces (Jammu & Kashmir) Special Powers Act, 1990, primarily for the purpose of curbing militancy and maintaining peace in the valley but that has hardly been the case as the impunity enjoyed by the armed forces under this Act has led to increasing human rights violations by the security forces.
Disappearance/Enforced Disappearance The impact of militarisation leads to arbitrary detention by the security forces, which eventually results in large scale custodial deaths, extra-judicial killings and enforced disappearances because of the impu- nity enjoyed by the security personnel. The Indian State has a very indifferent attitude towards tracing the disappeared persons. About 8,000 10,000 persons have disappeared since 1989, Ms. Parveena Ahangar, the Chairperson of the Association of Parents of Disappeared Persons (APDP) said this during Fact Finding Meeting (FFM) on Human Rights Violations in Kashmir, held in Srinagar on February 20-21, 201010. It was also highlighted during this FFM that many of them were killed while in custody of the Indian Army or the security persons. One Rashid Billa (SDPO) at Sowa is reported to have killed over 512 persons extra-judicially.11 Many such incidences of enforced disappearances were deposed in the FFM, held in May 2013, which went to the J&K SHRC but in which the commission failed to either provide relief and justice to the victims. The family of the victims of such enforced disappearances came to tell their horrid tale of agony and deposed in the FFM on the functioning of J&K SHRC. One such incident was of the disappearances of Mohammad Shafi Rah & Mushtaq Ahmed Rah, who were from the district of Srinagar. As per the family account, the two victims were leather busi- nessmen in Kathmandu, Nepal for 10 years. They were arrested in the year 2000 by the police and the Intelligence Bureau in Nepal, when mass arrest of Kashmiris was taking place during that time. Out of the 27 arrestees, only 10 were released and the rest are still missing. The family has lodged FIRs in two
10. Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_report%20on%20kashmir.pdf 11. Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_report%20on%20kashmir.pdf
JAMMU AND KASHMIR 39 police stations, namely at Zaina Kadal and Shaheed Gunj. They filed a complaint both at the National Human Rights Commission on 17-09-2003 and the J&K State Human Rights Commission under Case No. SHRC/2001/166. However the complaint has not yet been disposed off in either of the com- missions and the case is pending in SHRC for last ten years. Since then the case is being pursued by the family in all possible ways, they have approached all government officials and offices but have not received any information regarding their missing sons.
The Status Of Women The extreme human rights violation faced by women is blatantly neglected and even furthered by the state and its machinery. Also the human rights violations and threats magnify in cases when the victim is a woman. The most general form of human rights violation committed in a militarised area is rape. This is done to subdue the voices that oppose state-sponsored violence, as such is the case in a milita- rised state like J&K. Given the presence of draconian laws like AFSPA which gives immunity to the armed forces even against such serious violations like rape, has resulted in the perpetrator of such heinous crime getting scot-free as no investigation is done in these cases. There have been complaints pending from the year 1991. In 1991, about 100 women, including minors and the elderly, the pregnant and disabled were th raped in Kunan Poshpora, Kupwara district by the 4 Rajputana Rifles, during a search operation. However, till today no action has been taken against the perpetrators, despite several reports in the media12and also raised by various human rights organisations. There have been many such stories related to such heinous incidences of rape, which though cov- ered widely in the media, still no action was taken or even initiated against the accused. Also, there is quite a number of rape cases which go unreported because of constant threats from the security per- sonnel notwithstanding the stigma that the women has to face in the society once it is reported. Thus, in many such incidences the women choose to remain silent. Such serious human rights violations are taking place on a regular basis in the militarised states like Manipur and Kashmir where the impunity enjoyed by the armed forces, under the anti-human law of AFSPA, has resulted in mass incidences of rape committed by the military forces, paramilitary forces as well as the police.
Conclusion
Routine criminal investigations, a key function of the police, are among the first to deteriorate under militarisation. All complaints against the armed forces just remain without any investigation. Under the draconian law AFSPA, the armed forces can shoot, kill, or do any heinous act (like rape) without any fear of being punished or brought to book. As a result of working within a military environment, the police have also acquired a taste for impunity. It has started distorting FIRs, at times even refusing to file FIRs. The police seem least bothered to perform their duties, as laid down in the statute and rule book, because they know that nobody will question them as has become the case under the inhumane AFSPA law. Even in cases where the J&K SHRC has recommended relief, the authorities have just grossly ignored it, time and again, failing to implement the recommendations of the commission. Also, the National Human Rights Commission (NHRC) and the State Human Rights Commis- sion (SHRC) are not in a position to do anything concrete, largely constrained by the provisions of
12. Sunday Times of India, 13th June, 2010, also available at http://articles.timesofindia.indiatimes.com/2010-06- 13/special-report/28294951_1_indian-army-human-rights-jaleel
40 SHRC: SOCIAL AUDIT REPORT – III Protection of Human Rights Act. They have no power to investigate or to take any action on any com- plaint of violation of human rights committed by the armed forces. Even when such complaints were sent to the J&K SHRC, it failed to provide justice or relief to the victims of human rights violations. Thus it is very clear that despite a culture of systemic impunity it is individuals who commit viola- tions, and first and foremost they should bear the responsibility for their acts and should get punished. Unless and until the individuals involved in each such act of human rights violations are brought to book and prosecuted, then only the process can be started to stop the institutions from creating an impunity cover for the violator.
JAMMU AND KASHMIR 41 The Fact Finding Meeting Panel social audit report Chapter-I Patterns of Violations in Jammu & kashmir and the Functioning of J&K shrc
44 SHRC: SOCIAL AUDIT REPORT – III Introduction
“The establishment of an effective State Human Rights Com- mission can pave the way toward reconciliation1.” —Wajahat Habibullah
Kashmir in the 1990s was a hotbed of activism, militancy and violence with human rights violations abound. Disappearances and encounters on a grand scale were com- monplace. Torture was an accepted part of interrogation and rape was used as a tool of subjugation and intimidation. International cognisance of events in Kashmir rose in accordance with the fre- quency of gross human rights violations. The likes of Human Rights Watch (HRW), International Committee of the Red Cross (ICRC) and Amnesty International highlighted events in the state as did a host of Indian human rights organisations. In the year 1993, the Indian Parliament passed the Protection of Human Rights Act, giving birth to the National Human Rights Commission. Four years later, in the absence of any degree of accountability for human rights abuses, the J&K Legislature passed the Protection of Human Rights Act, 1997 and established the State Human Rights Commission. The J&K SHRC was thus born into a violent and challenging environment, and carried out in the name of a struggle for independence and the overthrow of a cruel oppressor on one side, and under the banner of combating terrorism on the other, with both militants and state security forces committing violations with impunity. It is abundantly clear that the SHRC is restricted in many ways because of the lack of political will on the part of the state. Despite the constant State rhetoric, the SHRC suffers from an obvious absence of genuine backing. Since its inception, the State has ignored the commission and its recommendations. Reports and findings of the Commission are habitually ignored or overruled. Action taken reports are rarely if ever delivered as instructed by the 1997 Act. The commission has been in existence for almost 16 years now, and a quick glance at any of the annual reports spanning this time illustrates how the same problems have existed from day one. That none of these have been adequately addressed in over ten years is damning. Perhaps the most alarming of these is the way in which the State ignores so many of the commission’s recommendations. One lawyer, who has given up filing cases with the commission, commented on how the state responded to recommendations of the commission with “a deafening silence.” Hardly the actions of a government commit- ted to improving an abysmal human rights record.
1. My Kashmir: Conflict and the Prospects for Enduring Peace, by Wajahat Habibullah, pg 165
JAMMU AND KASHMIR 45 However, it must be noted that the commission could do more to improve the human rights situ- ation, in spite of the apathy and lack of support from the State. The restrictions placed upon the SHRC by the State cannot simply be used as a blanket excuse for the inactivity of the commission. There are provisions of the Act that are not being upheld by the SHRC and for which the state is being held to blame. According to the 1997 J&K PHRA Act, the SHRC is entrusted with improving human rights lit- eracy and spreading awareness amongst the inhabitants of the state. In order to do so, the Act suggests the body work with NGOs and civil society groups. But the commission has hardly done so. There have been no interactions with NGOs/human rights bodies. No attempt to get them to help the commission fulfil its mandate either. Every time the excuse has been that of having no funds to do the activity. There are numerous NGOs in the valley alone. There is no reason why the SHRC could not partner with any number of these to arrange regular seminars on human rights and the workings of the commission. There are countless ways of improving human rights education that would cost the commission noth- ing, certainly in the vicinity of the SHRC Offices. Another way is to improve human rights awareness. It can be done by its members who could participate in the guest lectures/seminars at the Universities. According to Section 19(2) of the 1997 Protection of Human Rights Act, the commission, upon completion of an inquiry, may “approach the High Court for such directions, orders or writs as the court may deem necessary.” This almost seems to anticipate the inaction of the State and provides the SHRC with an alternative course of action. However, the J&K SHRC has hardly done so. When asked about this provision, the commission again regurgitated the same excuse — lack of funding. When pressed on the matter, the SHRC admitted that it had not approached any High Court lawyer in the valley to discuss the possibility of taking a pro bono case.
Jammu & Kashmir Protection of Human Rights (J&K SHRC) Act 1997
According to the Preamble of the 1997 Act, it was enacted “to provide for the constitution of a State Human Rights Commission and Human Rights Courts for better protection of human rights and for matters connected therewith or incidental thereto.” Sections 3-9 provides for a Chairperson and four members to be appointed to the commission. Section 11 of J&K Human Rights Act, 1997, provides for the constitution of investigative team of the commission to look into the complaints coming to the commission. Section 12 talks about the An- nual and special reports of the commission. Section 12 of J&K Human Rights Act, 1997, also talks about production of memorandum of action taken or proposed to be taken on the recommendations of the commission and the reasons for non-acceptance of the recommendations, if any. Section 13 describes the Functions and Powers of the Commission. The commission shall perform all or any of the following functions, namely:- (a) inquire, suo moto or on a petition presented to it by the victim or any person on this 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; (b) intervene in any proceeding involving any allegation or violation of human rights pending before a court with the approval of such court; (c) visit, under intimation to the Government, any jail or any other institution under the control of the Government, where persons are detained or lodged for purpose of treatment, reforma-
46 SHRC: SOCIAL AUDIT REPORT – III tion or protection to study the living conditions of the inmates and make recommendations thereof; (d) review the safeguards provided by or under the constitution or any law for the time being in force for the protection of human rights and recommend measure for the effective implemen- tation; (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; (f) undertake and promote research in the field of human rights; (g) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, semi- nars and other available means; (h) encourage the efforts of non-governmental organisations and institutions working in the field of human rights; (i) such other functions as it may consider necessary for the promotion of human rights.
Under Section 19 of the Act, the J&K SHRC may recommend to the government to initiate pro- ceedings for prosecution. It may also approach the High Court for such directions. Compensation is the third mechanism that it can follow. Overall, Section 19 details the steps after inquiry – The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:- • where the inquiry discloses the commission of violation of Human Rights or negligence in the prevention of violation of Human Rights by a public servant, it may recommend to the Government or authority the initiation of proceedings for prosecution or such other action as the commission may deem fit against the concerned person or persons; the commission, having received a complaint against a member of the armed forces, only request a report from the Central Government. Having received this report, it can make its recommendations to that Government. It is then up to the Government whether or not to accept and implement the recommendations. (The commission cannot investigate violations by the armed forces.) • the commission shall send a copy of its inquiry report together with its recommendations to the Government or authority and the Government or authority shall, within a period of one month, or such further time as the commission may allow, forward its comments on the re- port, including the action taken or proposed to be taken thereon, to the commission; • the commission shall publish the inquiry report together with the comments of the Govern- ment or authority, if any, and the action taken or proposed to be taken by the Government or authority on the recommendations of the commission. It has no website of its own where it can disseminate information to the public or other data as per the RTI Act, 2005. The annual reports of the commission are hard to access to as they are not easily available in the public domain. Upon first reading, the Act seems to guarantee the commission with a large degree of autonomy and the tools necessary to ensure a strong and independent voice in the struggle for human rights. However, a more thorough examination of the provisions will offer a disappointingly weaker impres- sion. The powerful voice instead appears to be an often ignored whisper with little or no bite. As going through the 2008-09 Annual Report of J&K SHRC, one notes that the duties of the commission include undertaking of “enquiries/ordering investigations and passing of appropriate or-
JAMMU AND KASHMIR 47 ders/recommendations including launching of prosecution, initiating disciplinary action(s) against pub- lic servants negligent in the prevention of violation of human rights, granting ex-gratia reliefs, etc. No initiative has been taken by the commission to promote human rights education and neither any fund has been sanctioned regarding this. Moreover, it has failed to partner with the NGOs on this front.
The Paris Principles
The Paris Principles provide benchmarks against which proposed, new and existing national human rights institutions can be assessed or ‘accredited’ by the international coordinating committee’s sub- committee on accreditation. Under the Paris Principles, NHRIs are required to: • protect human rights, including by receiving, investigating and resolving complaints, me- diating conflicts and monitoring activities; and • promote human rights, through education, outreach, the media, publications, training, capac- ity building as well as by advising and assisting governments. The Paris Principles set out what a fully functioning NHRI is and identify six main criteria that these institutions should meet to be successful: • mandate and competence • autonomy from the government • independence • pluralism • adequate resources • adequate powers of investigation But that has hardly been the case with the human rights institutions in India. They clearly lack the above mentioned requisite criteria as envisioned in the Paris Principles. And as one goes about discuss- ing these criteria in detail in the later sections of this report, it will become clearer as to how this institu- tion’s functioning has been derailed because of lack of independence.
divisions of J&K shrc
The most affected victims of human rights violations are the most vulnerable, discriminated and mar- ginalised i.e. Muslims, women and children. In the commission, there are three divisions entrusted with specific tasks, namely administrative, law and investigation wing. The administrative wing is headed by the secretary of the commission, the law division by the registrar and the investigation wing by the inspector general of police (IGP). In the J&K SHRC, there is no legal wing and it also does not have an independent investigation unit of its own which is out of government’s control.
functioning
Establishment and Infrastructure The Government of Jammu & Kashmir issued the notification for constitution of J&K SHRC in the year 1997.
48 SHRC: SOCIAL AUDIT REPORT – III Powers While enquiring into complaints coming to it, the commission, as a statutory body constituted under
J&K PHRA, 1997, has all the powers of civil courts2 trying a suit under the code of civil procedure, Samvat 1977, and has the authority to summon witnesses, requisitioning any public record or copy thereof from any court or office, recommend compensation3 and monitor the implementation of its recommendations. The commission also has the power to inquire, take suo motu cognisance or on a petition by victim or any person on his/her behalf into the complaints of - violation of human rights and abetment thereof and negligence in prevention of such violation by public servant4. The commis- sion can also intervene in any proceedings involving any allegation of human rights violation pending before a court with the approval of such court5. It can also visit jails, or any other institutions under the control of the government, meant for the purposes of treatment, reformation and protection of its inmates, for detection of violation of human rights and recommend measures to improve the conditions of such institutions6. It is also supposed to act towards spreading human rights literacy amongst vari- ous sections of society through publications, media, seminars and other available means, as enshrined in the Act7 too. The commission is mandated to investigate and redress the many and varied human rights vio- lations carried out in the state and also to take such measures needed to stop the rate of violations. Looking at the functioning of commission since its establishment tells that the commission has failed to fulfil its mandate. Lack of infrastructure i.e. both financial as well as physical, has contributed to the operational inefficiency of the commission.
Independence For its effective functioning, it is essential that the commission should function independently from the government and any external institution. The commission is constituted to protect the violation of human rights and also to make recommendation on the petition filed by the victims to provide justice and relief to them. The commissions ought to be independent legally, financially, and through their composition, in order that they may enjoy the autonomy required to discharge their responsibilities, as also envisioned in the Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights: “An effective institution will be one which is capable of acting independently of government, of party politics and of all other entities and situations which may be in a position to affect its work8.”
The JKSHRC being a human rights institution should operate as a separate9 and distinct entity able to exercise its independent decision-making power. Also, the independent operating status should be of a level sufficient to permit it to perform its functions without interference or obstruction from any gov- ernment or private entity. It is hardly the case in J&K as the commission does not have the autonomy
2. Section 14 of J&K PHRA 1997 3. Section 18 of J&K PHRA 1997 4. Section 13(a) of J&K PHRA 1997 5. Section 13(b) of J&K PHRA 1997 6. Section 13(c) of J&K PHRA 1997 7. Section 13(g) of J&K PHRA 1997 8. Handbook on the establishment and strengthening of national institutions for the promotion and protection of human rights, (1995) un office of the high commissioner for human rights (pg 10) 9. Handbook on the establishment and strengthening of national institutions for the promotion and protection of human rights, (1995) un office of the high commissioner for human rights (pg 10-11)
JAMMU AND KASHMIR 49 to conduct its day-to-day affairs independently. This is so because the JKSHRC is directly funded by the state government. The state government controls the funding of the commission which comes in the form of grant, and more often than not the appointments made to the commission are politically influ-
enced and are not transparent. In the state of J&K, the SHRC is actually served by government officials
deputed in the commission as staff. The link between financial autonomy and functional independence is strong and as the JKSHRC does not have the power to determine its own finances; its actions are easily influenced by the state government which funds it. The Act provides for the establishment of the commission and also the appointment procedure of chairperson and members of the commission. According to Section 3 of J&K PHRA, 1997, the chairperson and members shall be appointed by the governor on the recommendation of a commit- tee consisting of chief minister (acting as chairperson), speaker of the legislative assembly, member in
charge of the department of home and leader of opposition in the legislative assembly. This provision of the Act has made the commission completely dependent on the state government for the appointments. Also, the state government decides the number of sanctioned post of the com- mission and appointments are made keeping government interest in mind. This appointment procedure paralyses the commission work as the state government deliberately keeps most of the commission posts vacant for years so that its interests are not adversely affected, as most of the complaints are against the government. Also, the lack of resources leads to undue delay directly affecting the functioning of the commission.
Operational Efficiency The commission has made repeated requests to the state government about the scarcity of equipped staff and members, which is badly affecting the functioning of the commission. Ironically, even the sanctioned posts to the commission have not been filled up. The vacant posts in the commission have become a rule rather an exception over the years. The vacant posts in the commission have resulted in piling up of pending cases, non-replies/late replies from the commission in complaints sent to it, and thus erratic working of the commission. Also, with the non-availability of adequate resources there is delay in taking any action. Another factor which contributed to the operational efficiency is the working method of the com- mission. After a case is filed by the petitioner and registered by the commission, the chairperson directs the investigation team or the Superintendent of Police (SP) of the respective district to investigate the matter and submit an investigation report within a time period specified by the chairperson. Based on the investigation report the commission passes its order. In most of the cases the same department against which the complaint has been made, investigates into it and gives itself a clean chit. The com- mission may for the purpose of conducting any investigation pertaining to the inquiry, can utilise the services of an officer or investigation agency of the central government or any state government with
the concurrence of the central government or the state government as the case may be10 but it is not generally the trend in Kashmir.
Jammu & Kashmir Protection of Human Rights Act 1997
Features and Weaknesses
10. Section 15 of J&K PHRA 1997
50 SHRC: SOCIAL AUDIT REPORT – III The Paris Principles, adopted by the UN General Assembly in 1993, set out a number of key guidelines which govern the establishment and functioning of national human rights institutions. Below the head- ing ‘Composition and guarantees of independence and pluralism’, the Principles stipulate that any state human rights body should be endowed with; “an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.” Contrary to the provisions of the Paris Principles, the J&K SHRC is entirely dependent on the state government for funding. Not only is the current system unacceptable, where the SHRC must approach the government each and every time it requires funding, it is also uneconomical from an administrative point of view, as noted by the South Asian Human Rights Document Centre (SAHRDC). The SHRC should be spending its time independently investigating abuses, not filling out paperwork in response to financial requirements. In its current form, the SHRC is reduced to little more than an extension of the state government, dependent upon the government on various counts, be it finances, investigations, appointments etc.11 The following is the District-wise break up of cases instituted (received) in J&K SHRC (2004-05 to 2011-12):
Table-1
S N District 2004- 2005- 2006- 2007- 2008- 2009- 2010- 2011- Total 05 06 07 08 09 10 11 12 Kashmir Division 1 Srinagar 92 76 74 76 73 61 43 67 562 2 Budgam 35 23 34 30 22 17 12 16 189 3 Ganderbal - - - 8 11 10 5 6 40 4 Kupwara 69 32 59 74 41 93 35 94 497 5 Baramulla 61 39 55 59 28 31 28 53 354 6 Bandipora - - - 20 7 13 8 12 60 7 Anantnag 42 39 31 34 26 20 11 30 233 8 Pulwama 13 13 15 21 16 13 11 13 115 9 Kulgam - - - 6 6 13 2 5 32 10 Shopian - - - 0 5 5 1 2 13 Total 312 222 268 328 235 276 156 298 2095 Jammu Division 1 Jammu 38 25 32 41 46 68 57 53 360 2 Kathua 8 6 3 3 2 2 2 9 35 3 Udham- 9 15 16 8 4 2 7 8 69 pur
11. https://hrdc.net/~hrdcnet/sahrdc/hrfeatures/HRF127.htm
JAMMU AND KASHMIR 51 4 Doda 13 20 15 16 9 11 14 24 132 5 Poonch 14 12 11 282 89 84 31 16 539 6 Rajouri 9 9 15 15 7 5 13 13 86 7 Reasi - - - 4 1 0 1 3 9 8 Ramban - - - 7 1 7 2 21 38 9 Samba - - - - 1 3 7 11 22 10 Kishtwar - - - 6 4 4 10 2 26 Total 91 87 92 382 164 186 144 160 1306 Others (Kargil, Leh, Ladakh, Outside of J&K) 31
Handicaps and Measures for Strengthening Neither the J&K Disturbed Areas Act nor the Armed Forces (Jammu & Kashmir) Special Powers Act allows the arrest of members of the armed forces without the prior agreement of the central govern- ment. Similarly, the J&K SHRC is prohibited from independently investigating allegations against the security forces. Rather, it can request that the government launches an inquiry into any allegations of abuse. The SHRC, in its every annual report, calls for strengthening measures. Section 13 of the J&K PHRA, 1997, grants certain but limited investigative powers to the com- mission. The commission could do more to reach out to people and organisations working on the issue of human rights, spread human rights education in partnership with NGOs and take other innovative initiatives to fulfil its mandate to promote and protect human rights, especially in the investigation of cases, which currently it sorely relies on the state machinery especially police to do so. It can take the help of the lawyers and organisations already working on this issue. According to Mr. Wajahat Habibullah, “...the commission has been rendered ineffective because it was starved of funding or simply ignored, even though its annual reports were placed before the state legislature as demanded by law12.”
The Current Status of j&k shrc
Important functions of the SHRC are inquiry into complaints; review of existing laws; improving jail conditions and other health institutions; encouraging the efforts of NGOs working and creating aware- ness among various sections of society to undertake, and promote research in human rights and such other functions as it may consider necessary for the promotion of human rights, reviewing the factors which inhibit the enjoyment of human rights, and promote and spread the awareness of human rights literacy and promote awareness of the available safeguards of these rights amongst many others. Unfortunately, the state government does not take the SHRC seriously. It lacks basic infrastructure like adequate staffers, and independent research division and investigating agency as so provided in the sub-clause (b) of sub-section (i) of Section 11 of the Act. This clause provides that the government shall make available to the commission investigating staff under an officer not below the rank of Inspector General of Police, and such other officers and staff as are necessary for the efficient performance of its functions. But that has hardly been the case. As in the other states, the SHRC’s role has been limited to
12. My Kashmir: Conflict and the Prospects for Enduring Peace, by Wajahat Habibullah, pg 113
52 SHRC: SOCIAL AUDIT REPORT – III merely seeking reports from the police department in the state of J&K. The following is the nature of cases coming to the J&K SHRC every year (2004-05 to 2011-12):
Table-2
Nature of Rape Custodial Harass- Disappear- Murder Ex-Gratia Cases Death ment ance Relief 2004-05 9 17 69 44 10 64 2005-06 2 12 44 39 - 48 2006-07 2 15 54 59 36 38 2007-08 7 40 88 91 37 238 2008-09 6 9 54 49 24 73 2009-10 3 6 70 53 29 128 2010-11 2 7 61 42 6 36 2011-12 6 5 91 59 4 50 Total 37 111 531 436 146 675
The Apathetic State of J&K SHRC In July 2006 the then Chairperson of SHRC Justice A. M. Mir resigned in protest against what he termed “growing human rights violations in the state and non-implementation of commission’s recom- mendations.” In his resignation letter to the then Governor, Lt Gen (Retd) S. K. Sinha, Justice Mir stated that SHRC was an “eyewash to befool the world community”. He wrote - “During my tenure, not a single recommendation made by the Commission was implemented. SHRC has not been able to accomplish the object for which it was established. I waited for long in the hope that my efforts might yield some results.13” Even after repeated reminders by the SHRC in its annual reports to strengthen the commission and calls for numerous amendments in the Act with a view to increase the power and improve the function- ing and efficiency of the commission, has fallen on deaf ears. The state government’s response to these calls has remained lukewarm and not encouraging to say the least. These calls for amendments were reiterated in February 2011, when the Chairperson of the J&K SHRC, Justice Bashir-ud-din, speaking about the role of the commission as a recommendatory body to prevent human rights abuses, told Government of India appointed interlocutors that the existing Act (J&K PHRA, 1997) needs “drastic changes and amendments” to make it more forceful. He further stated that “the powers that the commission should be vested with are not there. The commissions’ recommendations need to be acted upon both at the centre and state level. The human rights issue has crept in J&K in 1932 and more precisely after 1947. The victims’ issues have to be addressed otherwise the human rights violations will continue as it is a vicious circle14”. And as it is often said, “Real justice is the best deterrent. If the existing environment of impunity
13. J & K SHRC: In Shambles, India Human Rights Report, Issue-02, October to December 2010, Asian Centre for Human Rights, also available at http://www.achrweb.org/ihrrq/issue2/J&K_SHRC.html 14. Interlocutors call on SHRC chairman: ‘Solution To HR Issue Lies In Political Resolution’, MUDDASIR ALI, February 2011, also available at http://greaterkashmir.com/news/2011/Feb/26/interlocutors-call-on-shrc- chairman-46.asp
JAMMU AND KASHMIR 53 continues (in J&K), so will the violations.” The Chairperson of the J&K SHRC, Justice Bashir-ud-din was of the view that unless the short- comings of the commission are addressed, the human rights violations will continue. Repeated calls by human rights defenders as well as by the media, for empowering the commission have been grossly ignored by the government. Both the state and the central government have little interest in capacitat- ing the SHRC towards protection and promotion of human rights, and as such the recommendations put forward by the commission get overlooked. As such the apathy and indifference of the government towards the SHRC and its recommenda- tions leads to expressions of helplessness on the part of the SHRC. So, mostly, the SHRC is viewed as a ‘toothless tiger’ by most, and is thus failing to fulfil its mandate towards the protection and promotion of human rights. Moreover, by purists of the human rights field, it is viewed as little more than a cos- metic gesture, nothing but an exercise in public relations towards pacifying international human rights institutions and standards. Whether or not, it is fulfilling its mandate or not, the fact remains that the victims of human rights violations and their families are the ones who continue to suffer. Over the years, the government has ignored the recommendations made by the commission. Since 2000, the commission has forwarded 973 recommendations to the state government of which action has been taken in merely 447 cases15. The annual reports of the commission point out that its recom- mendations are not taken seriously and being treated like ‘routine papers’ by the government. Under Section 12 (2) of the Jammu and Kashmir Protection of Human Rights Act, 1997, the government shall produce the report of action taken or proposed to taken on the recommendations made by the commission before the state legislature, and reasons for non-acceptance of the recommendation, if any. The action which is being taken by the government is also to be brought to the notice of the state legislature as, besides the annual reports, the government also has to table the action taken reports be- fore the Assembly. Action has to be taken by the home department as it is the administrative department of the commission. But that has hardly been the case16. The J&K SHRC has no authority to look into the alleged violations carried out by members of the armed forces. It has no power to investigate paramilitary and military excesses, though it does have the power to request investigation reports of the enquiry by the paramilitary and the military forces. The following is the Break-up of total cases instituted (received) and disposed (inclusive of cases pending from previous years) every year by J&K SHRC (2004-05 to 2011-12):
Table-3
Year Cases Instituted Cases Disposed During the Year During the Year (inclusive of cases pending from previous years) 2004-05 406 316 2005-06 312 218 2006-07 365 460 2007-08 715 596
15. http://expressindia.indianexpress.com/story_print.php?storyId=435117 16. http://expressindia.indianexpress.com/story_print.php?storyId=435117
54 SHRC: SOCIAL AUDIT REPORT – III 2008-09 404 697 2009-10 467 249 2010-11 300 345 2011-12 463 344 Total 3432 3225
Measures Needed for Strengthening J&K SHRC The Human Rights Watch letter to the Chief Minister of J&K Mr. Omar Abdullah, on February 10, 2009, asked for “strengthening the State Human Rights Commission by empowering it to indepen- dently investigate allegations of abuse by the security forces and militants. The letter further states the commission should be empowered to investigate even those cases under review by a court so that in “disappearances” cases, a family is not forced to choose between trying to find their relatives, or settling for the compensation that the human rights commission would recommend. The state and national governments should take appropriate action based on the commission’s recommendations17.” This too seems to have fallen on deaf ears. The United Nations Special Rapporteur on the situation of Human Rights Defenders, Margaret Sekaggya said that India should keep its politics with Pakistan on the Jammu & Kashmir situation aside and instead take up issues about the people and begin the healing process as ‘they’ have been suffering for many years. She also suggested that the Armed Forces Special Powers Act (AFSPA) and the Public Safety Act, which are being arbitrarily applied in the state of J&K and also in the northeast India, should be repealed. Acknowledging the security challenges faced by India, Ms. Sekaggya said that at the same time “people and their basic rights are also important”. Ms. Sekaggya further stated that there were “deficiencies in the administrative and judicial setup”. This needs to be looked upon seriously. Also, the human rights commissions in India must do more and increase the visibility in condemning rights abuse.18” In the past the chairperson have resigned terming the commission to be a ‘toothless tiger’. To correct it, the recommendations of the commission should be implemented within a prescribed time period failing which the commission should not hesitate to approach the courts to get it implemented. There have been recommendations that have been gathering dust for more than several years sometimes even more than a decade. This needs to be corrected as the commission hardly receives any action taken report (ATR) on its recommendations made to the government. As the recommendations of the com- mission continue to gather dust it is gradually losing its credibility in the eyes of both the people as well as human rights defenders. Thus, it is very clear from the J&K Commission annual reports that the efforts are on to make the commission redundant and dilute its position as it recommendations mostly get overlooked by the government. Against the backdrop of continued fake encounters in the state of Jammu and Kashmir, Prime Minister Mr. Manmohan Singh in June 2010, said that the government will act to ensure that security forces respect the human rights of the people even while dealing with terrorism19.
17. Human Rights Watch letter to the Chief Minister of J&K Mr. Omar Abdullah, on February 10, 2009, also available at http://www.sacw.net/article637.html 18. Begin healing process in J&K, says U.N. Special Rapporteur Ms. Margaret Sekaggya , January 2011, also available at http://www.hindu.com/2011/01/22/stories/2011012260991400.htm 19. http://www.dailyexcelsior.com/web1/10june07/newsupdate.htm#1
JAMMU AND KASHMIR 55 “In J&K, the performance of police officials continues to be rated on the basis of the number of ‘militants’ killed, arms and ammunitions recovered, information sought about people indulging in ‘anti- national activities’ and so on. This system of performance evaluation and rewards has developed a kind of ‘jungle law’ within the police in this state,” remarked a retired deputy Inspector General of Police on condition of anonymity20. The government promotes this, and so is not likely to be eager to punish violations that arise from such a process. In the year 2007, the J&K State Police picked up five persons from different areas of south Kashmir and killed them in staged encounters. Mr. Ghulam Nabi Azad, who was at that time Chief Minister of Jammu & Kashmir, had ordered a probe into this incident. The inquiry revealed that the Special Operations Group (SOG) – a counter insurgency group of Kashmir Police had killed the five innocent civilians in fake encounters, dubbing them as foreign militants. Those killed were actually carpenters, vendors and perfume-sellers21.
Conclusion
The recommendations made by the commission are rather for the most part either not followed or declined to be complied with on flimsy grounds and that too at the level of a Patwari or any other of- ficial of the revenue agency or at the instance and report of a constable. Instances have been coming to the notice of the commission when IGP’s and DGP’s reports are contradicted by a constable at the base level.22 So, to strengthen the Jammu & Kashmir State Human Rights Commission, it needs to be em- powered to independently investigate allegations of abuse by the security forces and militants as large numbers of human rights violations are being committed by the armed forces only.
Human Rights Violations in Jammu & Kashmir
he state of affairs especially that of human rights in the state of Jammu & Kashmir is atrocious to say the least. With so many preventive Acts like National Security Act, Official Secrets Act, J&K Public Safety Act 1978, J&K Disturbed Areas Act 1990, Armed Forces (J&K) Special PowersT Act 1990 under force in the state of J&K, the status of human rights has gradually declined especially over last two-three decades. These supposedly preventive Acts give sweeping power to the State and the security forces to ar-
20. http://www.civilsocietyonline.com/Archive/mar11/mar113.asp 21. J&K Police needs reforms, not rewards, Syed Basharat, Civil Society, March 2011, http://www. civilsocietyonline.com/Archive/mar11/mar113.asp 22. As so reported in J&K SHRC Annual Report 2008-09
56 SHRC: SOCIAL AUDIT REPORT – III bitrarily detain and arrest people at their free will, and provides impunity to the security forces towards performing such deeds. Even the grievous and inhumane crimes like rape and murder especially done in the name of encounters (that too fake) enjoy impunity under the force of these Acts especially the Armed Forces (J&K) Special Powers Act (AFSPA). The impunity enjoyed by the security forces under these Acts has led to rampant killings, arbitrary arrests, enforced disappearances, mass graves, torture of innocent people of J&K. It has also resulted in the grave incidences of rape especially gangrape by the security forces going unpunished in the name of these draconian laws. One such was the incident of rape of both mother and daughter by the Rashtriya Rifles (RR) of Indian Army in the district of Doda, Village Nowgam, Banihal. The perpetrator was found guilty by the magistrate court but the court’s or- der was set aside by the High Court, Jammu Bench, in the Original Writ Petition OWP 742/2001. The Union of India, Ministry of Defence, filed Letter Patent Appeal (LPA No. 17/2003) remains pending before the Jammu bench of the High Court 23. Thus, the perpetrators continue to roam free even after committing such heinous crimes such as rape. This is not an isolated incident. There are many such incidences, some recorded and often unre- ported. Such is the story of impunity in the state of Kashmir, which continues unabated because of lack of prosecution and failure of the State to punish the guilty, and thus the people are gradually becoming pessimistic about the role performed by the government in the state of J&K. In international human rights law, disappearances at the hands of the State have been codified as enforced or forced disappearances. The Rome Statute24 establishing the International Criminal Court de- fines enforced disappearance as a crime against humanity. However, the police do not entertain missing reports with regard to these persons. Association of Parents of Disappeared Persons (APDP), an organisation founded by concerned persons in Kashmir, has been demanding the whereabouts of people who have been subjected to en- forced custodial disappearance by various security agencies, troops and police – mostly since the break- out of armed rebellion from 1988. Even though the Association continues to highlight their sufferings and their demands, their genuine pleas and grievances are yet to strike the conscience of the so-called elected representatives of people. The Report Alleged Perpetrators – Stories of Impunity in Jammu and Kashmir, released in 2012, is a comprehensive report that examined some 214 cases of human rights violations and the role of around 500 perpetrators – mostly army, paramilitary, and police personnel. The crimes include enforced disap- pearances, torture, rape and custodial deaths. The International Peoples’ Tribunal on Human Rights and Justice in Indian-Administered Kashmir (IPTK) and the Association of Parents of Disappeared Per- sons (APDP) spearheaded the report in response to the structural impunity that prevails in the highly militarised regions of J & K25. The APDP has also been involved in recording the presence of mass anonymous graves in Kashmir. A very important aspect of the human rights violations identified in the report is that, in the name of countering militant violence, the Indian State authorises security forces to carry out its operations with
23. Case 42, Pg. 81, Alleged Perpetrators - Stories of Impunity in Jammu and Kashmir, International Peoples Tribunal on Human Rights and Justice in Indian-Administered Kashmir, December 2012, also available at http://kashmirprocess.org/reports/alleged_Perpetrators.pdf 24. http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf 25. Alleged Perpetrators - Stories of Impunity in Jammu and Kashmir, International Peoples Tribunal on Human Rights and Justice in Indian-Administered Kashmir, December 2012, also available at http://kashmirprocess.org/ reports/alleged_Perpetrators.pdf
JAMMU AND KASHMIR 57 impunity, often without any adherence to laws. And, in majority of cases, crimes are not officially docu- mented or probed due to the overwhelming reluctance to genuinely investigate or prosecute the armed forces. Even in cases where sometimes it is done, it’s just for the sake of some monetary compensation but not for granting justice as such26. When the forces, which are supposed to be the protector of the people, start inflicting pain on the people, it becomes doubly dangerous, even the basic of human rights i.e. the right to life comes under threat. There have been many such incidences of killings by the security forces. These killings/encounter killings have become a rule than an exception in the state of Jammu & Kashmir (J&K).
CUSTODIAL DEATHS/KILLINGS
The use of torture resulting in death in Indian Penal Institutions is escalating. In a report by the Inter- national Human Rights Organisation (IHRO) on custodial deaths, they claimed that, “In recent years, third degree torture and custodial deaths have become an intrinsic part of police investigations and the injury inflicted on the prisoners is sometimes unbearable.”27 A number of cases of violation of human rights were presented in the FFM held on the functioning of J&K SHRC at Srinagar on May 19, 2013. Most of such incidences were of custodial killings. One such case of custodial killing was of Mohammad Rafiq Baqal from Srinagar district. The victim was returning from a wedding late at night on June 10, 2000 and was asked to get down by MP Rattan Singh, Assistant Commander of Border Security Force (BSF) on Amira Kadal Bridge and was kept in the custody for the night. His brother was informed the next morning that his brother was shot dead. The victim’s brother then filed an FIR under No. 56/2000 U/s 302 RPC in Shaheed Gunj Police Sta- tion on the morning of June 11, 2000. The marks of extreme torture were visible on the victim’s body. The victim’s brother filed a case in the J&K SHRC and was treated inhumanely at one of the hearings whereby his brother was labelled as a militant; he then tore the file in front of the commission members. The victims’ family has filed a case in the J&K High Court and is still fighting to get justice. Another case of custodial killing that was highlighted during the FFM was of Shamusdin Chichi from Kupwara district. Shamusdin Chichi was killed by the troopers of 30 Rashtriya Rifles (RR) of In- dian Army in the year 1996 and the body of the deceased was thrown in the forest and he was labelled as to be affiliated with the militants. The victim’s father approached the J&K State Human Rights Com- mission through a complaint which was instituted on 10-12-2009 under File No. SHRC/2009/319 and prayed that he may be given requisite relief. The complaint was decided by the J&K SHRC vide its decision dated March 7, 2011. The commission concluded in its findings that the case of ex-gratia relief and compassionate appointment is accordingly recommended to the state government through chief secretary for its implementation. The same has not been given to victim’s father even though more than two years have passed. Though he had approached all the authorities/concerned quarters in this behalf, the respondents have failed to take any action on the decision made by the state human rights commis- sion. As such the family was constrained to approach the high court for redressal of its grievances which is pending disposal. The SHRC has also not done any follow-up on its recommendations. Moreover, no action for prosecution against the guilty persons were initiated.
26. Autonomy under siege, 07 January 2014, By Freny Manecksha - Three women in the militarised spaces of Kashmir describe traumatic accounts of sexual violence and their struggles to gain justice, also available at http:// www.himalmag.com/component/content/article/1-web-exclusive/5218-autonomy-under-siege.html 27. http://www.ihro.org.in/custodial_deaths.html
58 SHRC: SOCIAL AUDIT REPORT – III Thus, it is very clear from the above two incidences, amongst numerous such killings (few of which were deposed in the FFM too) taking place in the state of J&K day in and day out, that the commis- sion and the government both seem non-serious in providing protection to the people in J&K and has also failed on the count of granting justice to such victims of human rights violation committed by the state authorities. As such the level of insensitivity and callousness of the J&K SHRC towards such gross violation of human rights is really baffling. In the Report “Alleged Perpetrators - Stories of Impunity in Jammu and Kashmir, International People’s Tribunal on Human Rights and Justice in Indian-Administered Kashmir, December 2012”, the information related to cases initiated against the police and the armed forces in last three years, for human rights violations committed by them, was mentioned. The information was obtained through the RTI from the police headquarters. There were in total 370 FIRs registered against the police and the armed forces in such cases, in the last three years (information received as of June 2012). There has been no prosecution of even a single police officer or armed forces personnel being made accused in these FIRs filed. The majority of the cases have gotten a ‘challan’ and the rest of the cases have either not been admitted or are under investigation28. Such is the state of human rights in the state of J&K that the state-sponsored perpetrators are in- flicting pain on its own people on a daily basis and on a massive scale and the judiciary, human rights commissions and the state itself is sleeping over it. The worsening situation of human rights in the state of J&K, primarily because of the misuse of the impunity enjoyed by the security forces, is not only lead- ing towards people losing faith in the state itself but it is also giving fuel to the separatist movement, which is demanding an independent state of Kashmir.
The Effect of Militarisation: Extra-judicial KILLINGS
“Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or seri- ous injury, to prevent the perpetration of a particularly serious crime in- volving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, in- tentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” — Article 9, United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
“Every human being has the inherent right to life. This right shall be pro- tected by law. No one shall be arbitrarily deprived of his life.” —Article 6, International Covenant on Civil and Political Rights
Article 21 of the Constitution decrees that “No person shall be deprived of his life or personal liberty except according to procedure by law”, however this law is not always upheld by its enforcers. Custodial
28. Alleged Perpetrators - Stories of Impunity in Jammu and Kashmir, International People’s Tribunal on Human Rights and Justice in Indian-Administered Kashmir, December 2012, also available at http://kashmirprocess.org/ reports/alleged_Perpetrators.pdf
JAMMU AND KASHMIR 59 deaths, encounter killings are disturbingly common in the state of Jammu & Kashmir. If police, security forces and the army, ‘who are regarded as the custodian and guardian of law’, take issues of law and order into their own hands, including the ‘right to kill’, serious human rights issues are being violated (PUCL, 2010). The security forces continue to enjoy impunity in alleged encounter incidences, and the commis- sion continues to slumber over such cases of gross violation of human rights. So, instead of taking suo motu action and starting its own investigation, the commission, constituted for the protection of the rights of the respective populace, continues to be non-sympathetic and anti-victim, and biased in favour of the perpetrators. The commission, the supposedly ‘protector of human rights’, continue to act hand- in-glove with the perpetrators of state-sanctioned/sponsored human rights violations. The effect of militarisation in the Kashmir valley has resulted in it having around five lakh armed troops, three lakh army men, 70,000 Rashtriya Rifles (RR) soldiers, one lakh and thirty thousand central police forces as against the population of around one crore29. In the past two decades or so, the Kashmiris have grown up with the security forces living at their doorsteps. According to the police figures only, as so reported in The Times of India Newspaper dated June 13, 2010, there have been 51 allegations of rape against Indian Army men in the period of six years, as of June 13, 2010. In the year 1991, about 100 women were allegedly raped by a 4th Rajputana Rifles unit of Indian Army in Kupwara District alone30. Even though these were allegations only but this has really put a big question mark on the functioning of Indian military forces in the Kashmir valley, which is a clear effect of the militarisation of Kashmir and the result of the impunity enjoyed by the armed forces under AFSPA, 1958. The security forces have been used as a repressive agent by the State in name of maintaining do- mestic harmony. It is a long cry from the role that it was perceived to do and was constituted for i.e. external defence. The excessive militarisation in the valley has resulted in shrinking spaces for voicing people’s con- cerns especially resulting in terrorisation of the people and silencing of democratic voices. It also means crackdown on all supposedly dissenting voices that questions the state’s policies. This is all due to the impunity enjoyed by the armed forces that the military continues to engage in acts of violence against its own people knowing that no one can touch them or question their repressive measures to supposedly maintain peace and harmony. The state-sponsored killing, loot and arson by the armed forces, which enjoys impeccable impunity from the state under AFSPA, are a disturbing feature of the Kashmir valley. The security forces have thus grossly violated the human rights of innocent people of Jammu & Kashmir. There have been mass-scale incidences of extra-judicial killing and disappearances by the armed forces in the Kashmir valley which has been ignored by the state. Few such cases were presented in the FFM organised on the functioning of state human rights commission and the general state of human rights in the state of J&K. One such case was of Javaid Ahmed Mir, 35 years old working as a cam- eraperson in a private network television channel, Nine TV. On August 12, 2008, he was covering a demonstration for the said news channel at Bagh-e-Mehtab Chowk, Srinagar. The protest in question was against the transfer of land concerning the Amarnath land row. Many protestors later indulged in
29. Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_report%20on%20kashmir.pdf 30. Sunday Times of India, 13th June, 2010, also available at http://articles.timesofindia.indiatimes.com/2010-06- 13/special-report/28294951_1_indian-army-human-rights-jaleel
60 SHRC: SOCIAL AUDIT REPORT – III stone pelting against 29 Central Reserve Police Force (CRPF) Batallion, which reacted by opening of fire indiscriminately. As a result, Javaid was shot dead. The family lodged an FIR under No: 140/08 on the same day at the Sadar Police Station, Srinagar. The family filed a case with the SHRC under letter no: SHRC/2009/174/2770 and they are still waiting for the hearing. Another example is of the victim Abdul Rashid Ganaie of Handwara in Kupwara district, who was executed in an encounter. The victim was picked up on November 20, 1998 by a patrolling party of 30 Rashtriya Rifles (RR) of Indian Army, and was tortured in a nearby house and then shot dead without any rhyme and reason. His wife Mrs. Naseema Begum approached the J&K State Human Rights Commission through a complaint which was instituted on December 10, 2009 under File No. SHRC/2009/35. The complaint was decided vide its decision dated March 7, 2011. The commission concluded in its findings that the case of ex-gratia relief and compassionate appointment is accordingly recommended to state through chief secretary for its implementation. But the authorities have failed to take any action on the decision made by the commission. As such the petitioner approached the court for redressal of her grievances which is pending disposal. Further, there was no recommendation for any prosecution of the perpetrator of the crime. Another incident of incapacity of the J&K SHRC was highlighted in the FFM on the functioning of J&K SHRC. The case was of the victim Sajad Ahmad Ganaie from Ganapora Langate Handwara, Kupwara district. The victim was an innocent person and was killed in cold-blood by the troopers of 32 Rashtriya Rifles (RR) of Indian Army without any provocation. As per the family account, the victim was shot dead by the Army which was later admitted by them in their report that he was mistaken by them for a militant. The family approached the J&K SHRC on 10-12-2009 through a complaint under File No. SHRC/2009/314 and it was recommended by the SHRC on 06-01-2011 that the family be given a benefit of SRO-43 (benefits provided by the state of J&K on compassionate grounds to the family of the victims) but the recommendation of J&K SHRC has not been implemented till (FFM) date. However, no initiation of prosecution against the perpetrator of the crime was recommended by the SHRC. The J&K SHRC just continues to overlook this grave nature of human rights violations i.e. extra-judicial killings of innocent people at the hands of the security forces. The militarisation has transformed the Indian state into a source of deep insecurity for the citizens – as instruments of the persistent violator of human rights and converted the Indian military into an ille- gitimate agent of repression. Both in turn seriously undermine the democratic credentials of the state31.
Draconian Laws: Resulting in Torture, Arbitrary Arrest and Illegal Detention
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” —Article 9(1) International Covenant on Civil and Political Rights
Article 9 of the ICCPR prohibits the exercise of arbitrary detentions. This article mentions about the
31. As quoted in the Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_ report%20on%20kashmir.pdf
JAMMU AND KASHMIR 61 duty to inform at the time of the arrest of the reasons for the same and also whether the charges against with the arrest is being performed or not. It also directs states’ parties to bring promptly before a court to any individual arrested and detained. These provisions are also reflected in Article 22 of the Indian Constitution. Article 5 and Article 9 of the 1948 Universal Declaration of Human Rights decree that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and “no one shall be subjected to arbitrary arrest, detention or exile”. However, both these articles are routinely broken by law enforcers in the state of Jammu & Kashmir. Moreover, the United Nations Human Rights Committee notices the importance of independent institutions such as national human rights institutions, if “endowed with appropriate powers”, in con- tributing to this aim32. In order to provide with effective remedies to victims of human rights violations, the ICCPR requires states to investigate allegations of violations, to bring perpetrators to justice, to deliver reparations to victims and to implement measures to prevent recurrence of violations33.
“Each State party to the present Covenant (International Covenant on Civ- il and political Rights) undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the viola- tion has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative au- thorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;” —Article 2(3) International Covenant on Civil and Political Rights
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” —Article 7, International Covenant on Civil and Political Rights
The prohibition of torture as it is formulated in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) to which India is a party categorically prohibits the use of torture or ill treat- ment not allowing for the possibility of derogation. The protection of an individual from torture and abuse by the police and other law enforcing offic- ers is a matter of deep concern in a civilised society. The word ‘torture’ has become synonymous with the darker side of human civilisation. We must remember what was stated in D.K. Basu Vs. State of West Bengal [1997 (1) SCC 416] Supreme Court judgement – “whenever human dignity is wounded, civilisation takes a step backward – flag of humanity must on each such occasion fly half-mast.” Ironically, these measures of the covenants ensuring human rights are blatantly flouted in the state of J&K. The incidences of torture in the state of J&K are rampant. One such case of torture filed at the J&K SHRC was deposed in the FFM. The incidence is of Wani Mohalla, Sangrama, Sopore district. The victim Javed Ahmed Bhat was a 24 years old student of the Institute of Public Health & Hygiene,
32. UN ICCPR, General Comment No. 31, [15]. 33 UN ICCPR, General Comment No. 31, [15]-[19].
62 SHRC: SOCIAL AUDIT REPORT – III New Delhi and had come home for his summer vacations in August 2002. He had gone to check his paddy fields. On reaching the Sangrama Chowk he was picked up by men in civilian clothes in a vehi- cle. The victim asked for his release and was told that they will drop him near his home. On reaching Haigam, they turned the vehicle towards Karan Nagar BSF Camp 61 Bn. They blindfolded his eyes with his red t-shirt and was brutally injured. He was then detained in the camp of 61 Batallion BSF, Karan Nagar for 5-6 days and was subjected to third degree torture. Javed Ahmed was then handed over to Sopore Police Station, in a half dead state. Meanwhile the family tried to lodge an FIR but was denied on the pretext that the BSF had already lodged one. However, the victim’s father somehow managed to approach the SHO Police Station, Sopore, but he did not let his son leave. However due to extreme physical torture the victim succumbed to his injuries at 5:30am on 17-08-2002. The victim’s father lodged a case in the SHRC under File No. SHRC/2002/368 on 25-11-2002. The SHRC made a recommendation that the family be provided with a relief of Rs. 1 lakh and a job under SRO 43 on 20-1-2004. After 8 years since the day the SHRC passed its order, the family only got an ex-gratia relief and the benefit of SRO-43 is denied on the pretext that the family has a well-to-do background. Furthermore, no prosecution was recommended against the culprit even though it is clear that Javed succumbed to injuries inflicted upon him through torture at the hands of the security forces. More often than not, militarisation is accompanied by repressive laws, to justify, maintain and pro- long its existence. This results in the creation of draconian laws by the state machinery. Both of them together i.e. militarisation and draconian laws have such a cataclysmic effect that all the talk of human rights and democracy just flushes down the drain. This is what happened in the states of Manipur, As- sam, Chhattisgarh and other places apart from Kashmir. The Armed Forces (Special Powers) Act, 1958, was put into force in Manipur for containing Naga dissidence. It’s been more than five decades when it was put into effect there as every law enacted by the central government does not automatically come into effect in the state of Jammu & Kashmir as it needs to get certified by the state legislative assembly first, for it to come into effect. Moreover, this law has been introduced on the same lines in Kashmir, named as Armed Forces (Jammu & Kashmir) Special Powers Act, 1990, primarily for the purpose of curbing militancy and maintaining peace in the valley but that has hardly been the case as the impunity enjoyed by the armed forces under this Act has led to increasing human rights violations by the security forces. Furthermore, Section 4 of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990, states that armed forces officers have only to form an “opinion” to consider what may be necessary, and then on the basis of such “opinion” they “can fire upon or otherwise use force, even to causing death of any person” and they can “arrest, without warrant any person” and “enter and search without warrant any premises” at any time, and use force to achieve this objective. Section 6 of the Act gives them full protection against any prosecution or legal proceedings in respect of anything done or “purported to be done” in exercise of the powers conferred by this Act. These provisions of the Act has resulted in increasing incidences of arbitrary arrests, detention, torture, custodial deaths, rape, extra-judicial killings, enforced disappearances, mass graves, late night harassment of people at home etc as the Act empowers them to do so. The coming into effect of this Act has resulted in increasing incidences of disappearances (enforced disappearances), which have now become very routine, post-Armed Forces (Jammu & Kashmir) Special Powers Act, 1990. Not surpris- ingly, many such incidences of enforced disappearances were put up in the FFM. The armed forces have been using this Act with impunity and picking up people arbitrarily especially youth and children at their own behest for interrogation, and who are never to be found later.
JAMMU AND KASHMIR 63 Javid Ahmad Matto, a thirteen year old student of seventh standard at the time of his arrest on November 3,1993. He was having his lunch in the lawn of his home when a raid was conducted by 182 Batallion BSF, stationed at Banora Pulwama. The raid was led by Inspector Gurkhhman Singh, Trilok Singh, and Sheikhu Singh. The raid was conducted on the information provided by one Ali (alias Ali Tsoor, the thief), who was from Kupwara district and was servant in a neighbour’s home. Ali was arrested by BSF and was interrogated; he revealed the name of the victim and led a raid on the victim’s house. During this raid, the victim’s house was searched and he was asked his name. He told BSF of- ficers that he was a student, but Ali told them that he was having two guns in his possession. Javid was taken towards the BSF vehicles. His father followed the raiding party and requested them to release his son, but in vain. The family went repeatedly to the BSF camp again and again but they were told that the officer is not present and that they should come the next day. The next day the same thing was repeated. Finally on November 6, 1993, at 10:30 am, the father of victim was allowed inside the camp and made to sit. He was told by the officer that he is sorry that his son has escaped from their custody at a place called Newha Novpora when militants fired upon them. The father of the victim was shocked to hear it and he protested. But all his protest fell upon deaf ears and he was told to go to police station and know everything from them. The family immediately reached the police station and found an FIR No. 117/1993 lodged by BSF. FIR details revealed that on information of Javid Ahmad Matoo who was apprehended on November 4, 1993, they were going for the recovery of arms from village Zadura. The party was ambushed by militants between Newha and Novpora. Trilok Singh who was escorting Javid Ahmad sustained splin- ter injury and taking advantage of this Javid, a Kashmir Trained Militant of Al Jehad, escaped in the darkness. One magazine of AK-56, 23 rounds, a receipt book of Al Jehad, and other documents were recovered from him on November 4, 1993. The family went to SP of Pulwama to seek his intervention. After listening to the family, the SP told his constables to make an on the spot investigation of the encounter. However, the family believes that no investigation of any sort was made. The SP told the family that he will register a case against the BSF. However, the victim’s father refused, thinking it will annoy the BSF and they will not release his son. When the victim’s father approached the BSF Camp again, he was rebuked for going to the SP. From filing the case in court and searching for the victim from that day, the family has become exhausted. The family filed an application in the SHRC under File No. SHRC 2000/213 but till date there has been no action. They pursued the case for around five years but then stopped following it as no results were delivered. The family is not only saddened by the disappearance of their only son but has also lost another child, that of their daughter due to brain haemorrhage as she could not bear the loss of her brother. Let aside common citizens, even the government servants have not been spared the brunt of the draconian laws at the hands of the security forces. One such incidence, amongst many, of forced disap- pearance, was deposed in the FFM. The victim, Mushtaq Ahmad Khan, a 24 years old government employee was arrested from his house on the intervening night of April 13/14, 1997 by the personnel of 20-Grenadiers stationed at Boat Colony, Bemina, Srinagar district. The army personnel broke open the gates of his house, locked his wife and small children in a room and then beat him mercilessly in his house. It was not only the victim who was the recipient of extreme torture at the hands of the army but also his family. His wife and parents were also beaten by the army.
64 SHRC: SOCIAL AUDIT REPORT – III The family tried lodging an FIR after a month of Mushtaq’s arrest, after looking for him in all the jails of the valley, in the Batamaloo Police Station. However the FIR was not lodged until after 3 months of the incident. They filed a case in the SHRC in the year 1998 and the SHRC recommended an ex-gratia relief of one lakh rupees and a job. However, they were given the money after about 3-4 years of filing the case but haven’t been provided with a job as yet. The victim has four children- three sons and a daughter. One of the sons is suffering from psycho- logical trauma, after the night of arrest of his father. His wife also tried bribing a Naib Sobedar of the 20 Grenadier Army, Nazar Mohammad, who assured her that her husband would be handed over to the family very soon but to no avail. The victim’s wife still looks desperately for her husband everywhere. The other Act which has been repeatedly used to silence all forms of protest and dissent in the valley is the Jammu and Kashmir Public Safety Act (PSA), 1978. This law is especially draconian in nature. It fails on the human rights standards, and is being rampantly misused at the hands of the armed forces especially the police. Let aside common citizens, it does not even spare human rights defenders and voice of people especially the media persons. Mr. Maqbool Sahil, a renowned journalist, was booked under this and several other draconian laws and was put into preventive detention and severely tortured, and in process labelled him as an ISI agent working under the garb of being a journalist. Under this Act (PSA), the maximum period of detention is two years, without trial, for “persons acting in any manner prejudicial to the security of the State.” So, the arresting agency i.e. the security forces is given sweeping powers under this Act to arrest and detain at their own discretion and thus making a mockery of all human rights and democratic values. Prisons in the valley are full of detainees/undertrials booked under PSA, with at times even minors being arrested and detained on a number of occasions under this and other repressive laws, which have equipped security agencies with impunity to arrest anybody anywhere. Furthermore, the PSA is used as such so as to harass the same person again and again. So, what they do at the end of successive periods of two years, thereby making the actual period of detention much longer. Farooq Ahmed Dar, one such detainee, had to spend 16 years in prison before he was finally released in the year 200634.
Disappearance/Enforced Disappearance
The UN General Assembly in 2006 unanimously adopted the International Convention for the Protec- tion of all Persons from Enforced Disappearances. Earlier, there was the UN Declaration to the above effect (December 1992). Article 2 of the Declaration says that, “the prohibition” of “disappearances” is absolute and no state can find an excuse. Article 7 says, “no circumstances, whether a threat of war, internal political instability, or any other public emergency may be invoked to justify” these acts of viola- tion. But these have been routinely violated in the state of J&K. The impact of militarisation leads to arbitrary detention by the security forces, which eventually results in large scale custodial deaths, extra-judicial killings and enforced disappearances because of the impunity enjoyed by the security personnel. The Indian State has a very indifferent attitude towards tracing the disappeared persons. About 8,000 to 10,000 persons have disappeared since 1989, Ms. Parveena Ahangar, Chairperson of the Association of Parents of Disappeared Persons (APDP) said this during Fact Finding Meeting (FFM) on Human Rights Violations in Kashmir, held in Srinagar on Feb-
34. Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_report%20on%20kashmir.pdf
JAMMU AND KASHMIR 65 ruary 20-21, 201035. It was also highlighted during the FFM that many of the victims were killed while in custody of the Indian Army or the security persons. One Rashid Billa (SDPO) at Sowa is reported to have killed over 512 persons extra-judicially.36 Also, from the testimonies of the victims during the FFM it became quite clear that whenever the next of kin of the victims of disappearance/killings went to the police stations or army camps to enquire about their disappeared relatives, or to claim the bod- ies, they were threatened and/or tortured. Many of them even paid bribes to get information about the whereabouts of their kin. Most importantly, there has been no proper investigation done to punish the guilty and bring them to book. Many such incidences of enforced disappearances were deposed in the FFM, held in May 2013, which went to the J&K SHRC but in which the commission failed to either provide relief and justice to the victims or bring the perpetrators of this heinous crime to the book. These disappearances or to say enforced disappearances inflict tremendous agony on the family of the sufferer as they themselves do not know whether their kith or kin is alive or not. Blatantly putting it, the family of such victims suffer on a daily basis, hoping against hope that may be one day their beloved will be back. The family of the victims of such enforced disappearances came forward to tell their tales of agony and deposed in the FFM on the functioning of J&K SHRC. One such incident was of the disappear- ances of Mohammad Shafi Rah & Mushtaq Ahmed Rah, who were from the district of Srinagar. As per the family account, the two victims were leather businessmen in Kathmandu, Nepal for a decade. They were arrested in the year 2000 by the police and the Intelligence Bureau in Nepal, when mass arrest of Kashmiris was taking place during that time. Out of the 27 arrestees, only 10 were released and the rest are still missing. The family has lodged FIRs in two police stations, namely at Zaina Kadal and Shaheed Gunj. They filed a complaint both at the National Human Rights Commission on 17-09-2003 and the J&K State Human Rights Commission under Case No. SHRC/2001/166. However, the complaint has not yet been disposed of in either of the commissions and the case is pending in SHRC for last ten years. Since then the case is being pursued by the family in all possible ways, they have approached all government officials and offices but have not received any information regarding their missing sons. Another such incident of enforced disappearance, which went to the J&K SHRC and which the SHRC again failed to provide justice to the victims, was deposed during the FFM. The incident took place in Baripora, Uri, Baramulla District. The victim Ghulam Hassan Kakroo was apprehended by the security personnel on September 12, 1990 from his house at 11:00am by 7 Sikh Regiment at Lachipora. The family members allege that no police report was registered against the armed forces. The family members then approached the J&K SHRC on 17-03-1999 under Case No. SHRC/99/32. The SHRC established that Ghulam Hussain Kakroo was killed in the custody and recommended the ex-gratia relief and compensation on January 4, 2000. But the SHRC failed to direct the police station concerned to reinvestigate in the custodial disappearance/killing of the victim. Despite the lapse of al- most 10 years the police has failed to start the investigation; the family members approached the high court in 2007 and the case is still pending disposal.
35. Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_report%20on%20kashmir.pdf 36. Report of Independent People’s Tribunal on Human Rights Violations in Kashmir, 2010, published by HRLN and ANHAD, also available at http://www.iptindia.org/wp-content/pdf/report/ipt_report%20on%20kashmir.pdf
66 SHRC: SOCIAL AUDIT REPORT – III Failure of Democratic Mechanisms
Routine criminal investigations, a key function of the police, are among the first to deteriorate under militarisation. All complaints against the armed forces just remain without any investigation. Under the draconian law AFSPA, the armed forces can shoot, kill, or do any heinous act without any fear of being punished or brought to book. As a result of working within a military environment, the police have also acquired a taste for impunity. It has started distorting FIRs, at times even refusing to file them. The police seem least bothered to perform their duties, as laid down in the statute and rule book, because they know that nobody will question them as has become the case under the inhumane AFSPA law. Even in cases where the J&K SHRC has recommended relief, the authorities have just grossly ignored it, time and again, failing to implement the recommendations of the commission. Also, the National Human Rights Commission (NHRC) and the State Human Rights Commis- sion (SHRC) are not in a position to do anything concrete, largely constrained by the provisions of Protection of Human Rights Act. They have no power to investigate or to take any action on any com- plaint of violation of human rights committed by the armed forces. Even when such complaints were sent to the J&K SHRC, it failed to provide justice or relief to the victims of human rights violations. It became very evident with the cases presented in the FFM, held on the functioning of J&K SHRC, that the SHRC’s incapacity (along with that of State) to act proactively in fulfilling its mandate of promoting and protecting human rights has led to a complete failure of democratic mechanism in the state of J&K. Innocent people are being routinely tortured, killed in fake encounters by the security forces in the name of maintaining law & order. Most of such fake encounter killings are labelled by the security forces as being killings done in crossfire with the militant groups or the person who has been killed supposedly being a militant himself or belonging to a militant group. One such person who was killed in such a manner was Late Ab. Rashid War, Lach Mawer Hand- wara, Kupwara district. The victim Ab. Rashid War was carrying tea for labourers. He was abducted on 27-10-1993 by a patrolling party of 5 Kumaon Regiment of Indian Army. The victim was tortured and then shot dead without any rhyme and reason. His wife Mrs. Zareefa Begum approached the J&K State Human Rights Commission through a complaint under File No. SHRC/2009/320. The complaint was decided by the J&K SHRC vide its decision dated March 7, 2011. The commission concluded in its findings to provide ex-gratia relief and compassionate appointment is accordingly recommended to state through chief secretary for its implementation. The same has not been given to her though she had approached all the authorities/concerned quarters in this regard. Again the SHRC failed to take note of abysmal level of security for the people as it did not recom- mend any punitive action against the perpetrators of the highly condemnable extra-judicial killing and failed to fulfil its mandate i.e. protection and promotion of human rights The authorities again failed to take any action on the decision made by the commission, thus clearly questioning its authority. As such the family was constrained to approach the court for redressal. The case is still pending disposal in the court of law. Needless to say that the executive and the legislature are more involved in playing power politics than in rescuing the people from gross human rights violations. The following is the list of fatalities in the state of J&K during 2001-2009:37
37. Source: South Asia Terrorism Portal Database, also available at http://www.satp.org/satporgtp/countries/india/ states/jandk/
JAMMU AND KASHMIR 67 Year Civilians Security Force Personnel Militants Total 2001 1067 590 2850 4507 2002 839 469 1714 3022 2003 658 338 1546 2542 2004 534 325 951 1810 2005 520 216 996 1732 2006 349 168 599 1116 2007 164 121 492 777 2008 69 90 382 541 2009 55 78 244 377
THE STATUS OF WOMEN
The extreme human rights violation faced by women is blatantly neglected and even furthered by the state and its machinery. This is a never ending exercise. Also the human rights violations and threats magnify in cases when the victim is a woman. The most general form of human rights violation com- mitted in a militarised area is rape. This is done to subdue the voices that oppose state-sponsored vio- lence. As so is the case in a militarised state like J&K.
Rape Women are exposed to serious forms of dehumanisation especially in a militarised state like J&K. The militarisation process creates a hostile environment for women as the military establishment themselves have been anti-female. Rape is a common form of violation committed in such an environment. Given the presence of draconian laws like AFSPA which gives immunity to the armed forces even against such serious violations like rape, going scot-free as the cases are not being properly investigated. There have been complaints pending from the year 1991. In 1991 about 100 women, including minors and the th elderly, the pregnant and disabled were raped in Kunan Poshpora, Kupwara district by the 4 Rajputana Rifles, during a search operation. However, till today no action has been taken against the perpetrators, despite several reports in the media38and also raised by various human rights organisations. There have been many such stories related to such heinous incidences of rape, which though cov- ered widely in the media, still no action was taken or even initiated against the accused. Also, there is quite a number of rape cases which go unreported because of constant threats from the security personnel notwithstanding the stigma that the women has to face in the society once it is reported. Thus, in many such incidences the women choose to remain silent. Such serious human rights violations are taking place on a regular basis in the militarised states like Manipur and Kashmir where the impunity enjoyed by the armed forces, under the anti-human law of AFSPA, has resulted in mass incidences of rape committed by the military forces, para-military forces as well as the police. Amongst many, there is one such story of a rape victim Hameeda39 (name changed of the victim as well as the
38. Sunday Times of India, June 13, 2010, also available at http://articles.timesofindia.indiatimes.com/2010-06- 13/special-report/28294951_1_indian-army-human-rights-jaleel 39. As reported in Autonomy under siege, January 7, 2014, By Freny Manecksha - Three women in the militarised spaces of Kashmir describe traumatic accounts of sexual violence and their struggles to gain justice, also
68 SHRC: SOCIAL AUDIT REPORT – III family members). She is from Kupwara district. In the year 2004, when she was 16 years old, police picked her up from school in connection with a murder case in which her cousin [a surrendered mili- tant] was a suspect. At the police post, two women constables beat her badly, demanding to know about her cousin’s whereabouts. A little later the then Superintendent of Police (SP) came to extract the state- ment from her and asked others to leave the room. He made sexual advances, promising to release her if she agreed. When she refused the SP put a heavy roller on her legs. This torture was followed by brutal sexual violence. She had passed out when she was hit in groin by the policemen. When she regained her consciousness all she remembered was her torn school uniform, bruises on her breast and heavy bleeding from her vagina. The medical reports also surmised the terrible injuries to her sexual organs. Her injuries required hospitalisation for three months, and even today she is on medication. De- spite several attempts, Hameeda and her family have not been able to file an FIR. Instead the police filed a case against her and her alleged accused cousin and came to their home and threatened the family. This all resulted in the usual social stigma and humiliation of the victim. The people especially the relatives said that she was no longer acceptable. People would come up to her family pretending sym- pathy and making indecent proposals (of marriage) about her. The marriage, as an attempt to restart her life proved disastrous for Hameeda. Her husband was tortured by the police. As a result of this, her husband also started abusing her sexually. She had to pay her husband money to get out of her hellish life and get divorce, only after seven months of marriage. In the year 2004, she approached the J&K SHRC. The response to her complaint, of the worst form of human rights violation i.e. rape, came only after three years. Through indictment of the DSP and a compensation of Rs. 75,000 to the victim, the SHRC did prove that the victim’s rights were violated. She now stands at the crossroads of her future, torn between the need for financial assistance and thus marry again, or to fight for justice especially looking at the poverty and safety of her family, notwithstanding her deteriorating health conditions. The thing that the incident of rape clearly brings out to the fore is the taboo to talk about women’s sexuality and the shame attached to it that the rape victim has to bear throughout their life. So, generally the women choose to remain silent even after such worst form of human rights violation is committed. Once the recognition of rape as a political tool will get reinforced, a lot of other rape victims will come forward as has happened in the case of rape victims of Kunan Poshpora, Kupwara. In militarised spaces sexual violence has become a strategy of intimidation. Seeing that the perpe- trators are from the security forces, the act of filing a complaint against is beset with problem, leaving the victims vulnerable to more violence, both by perpetrators as well as by society. The rhetoric of be- ing anti-national has at times being used to hush up the rape cases. In Hameeda’s case the perpetrator actually received a state honour. Whether any accused security personnel had ever been punished, the answer is ‘No’ as not a single such person has been sentenced over the last 20 years or so.”40
available at http://www.himalmag.com/component/content/article/1-web-exclusive/5218-autonomy-under-siege. html 40. Autonomy under siege, January 7, 2014, By Freny Manecksha - Three women in the militarised spaces of Kashmir describe traumatic accounts of sexual violence and their struggles to gain justice, also available at http:// www.himalmag.com/component/content/article/1-web-exclusive/5218-autonomy-under-siege.html
JAMMU AND KASHMIR 69 Conclusion
Throughout the conflict, people have been maimed and disabled due to the indiscriminate firing of security forces during even in nonviolent protests. People have also been disabled during interrogations when torture was used. There is this incident of Bijbehara, where the security forces had indiscrimi- nately opened fire on peaceful demonstrators in 1993 and killed people41. Many injured persons have been disabled for life and have suffered mentally, physically, and finan- cially. For the disabled it’s not that much hard to bear with the aftermath of physical injury, but with the mental pain, agony, and trauma that make them feel that they die several deaths every day, rather than living even once. Thus it is very clear that despite a culture of systemic impunity it is individuals who commit viola- tions, and first and foremost they should bear the responsibility for their acts and should get punished. Unless and until, the individuals involved in each such acts of human rights violations are brought to book and prosecuted, then only the process can be started to stop the institutions from creating impu- nity cover for the violator.
41. http://www.sabrang.com/cc/archive/2010/july-aug10/cover3.html
70 SHRC: SOCIAL AUDIT REPORT – III
Chapter-II Testimonies
72 SHRC: SOCIAL AUDIT REPORT – III Enforced Disappearance Babbapora, Near Pathar Masjid, Habba Kadal, Srinagar Ghulam Nabi Mattoo deposing the case
Javid Ahmad Mattoo
avid Ahmad Matto, was thirteen years old and a student of 7th class at the time of his arrest on November 3, 1993. He was having his lunch in the lawn of his Jhome when a raid was conducted by 182 Batallion BSF, stationed at Banora Pul- wama. The raid was led by Inspector Gurkhhman Singh, Trilok Singh, and Sheikhu Singh. The raid was conducted on the information provided by one Ali (alias Ali tsoor, the thief), who was from Kupwara and was servant in a neighbor’s home. Ali was arrested by BSF and was interrogated; he revealed the name of the victim and led a raid on the victim’s house. During this raid, the victim’s house was searched and he was asked his name. He told BSF officers that he was a student, but Ali told them that he was having two guns in his possession. Javid was taken towards the BSF vehicles. His father followed the raiding party and requested them to release his son, but in vain. At that time the Village Headman Ali Chacha arrived and the victim’s mother requested him to seek release of her son from the custody of the BSF. Ali Chacha ap- proached the officer and requested him to release the child, but he was told that he will be released after questioning in the camp. The mother tried to resist the arrest of the victim and requested for his release, but he was taken away. After some time, one person who was released from the camp told the family that the victim was in Bonara Camp. The parents along with some village elders approached the camp on the same day. The father of the victim was allowed inside to meet the victim. He was shown 5 bullets and some old receipt book of some militant outfit, and he was told that these were recovered at the information of the victim. The father was told to tell the victim to hand over the guns also, otherwise another party will take him and they are not responsible for his fate. The father of the victim pleaded that he is a school going kid and is not involved with any organisation and if he has committed a mistake, he be forgiven and he will ensure his good behavior in future. He was asked to come next day as they wanted victim for further questioning. The next day the family again, along with a few elders, went to the camp and brought clothes and food items, but they were told that the officer is not present and that they should come the next day. The next day the same thing was repeated. Finally on November 6, 1993, at 10:30 am, the father of victim was allowed inside the camp and made to sit. The officers offered him tea. While taking tea he was told by one of- ficer that he is sorry that his son has escaped from their custody at a place called Newha Novpora when militants fired upon them. The father of the victim was shocked to hear
JAMMU AND KASHMIR 73 it and he protested, saying, how come a kid can escape? But all his protest fell upon deaf ears and he was told to go to police station and know everything from them. The family immediately reached the police station and found an FIR under No. 117/1993 lodged by BSF. FIR details revealed that on information of Javid Ahmad Matoo who was apprehended on November 4, 1993, they were going for the recovery of arms from village Zadura. The party was ambushed by militants between Newha and Novpora. Trilok Singh who was escorting Javid Ahmad sustained splinter injury and taking advantage of this Javid, a Kashmir Trained Militant of Al Jehad, escaped in the darkness. One magazine of AK-56, 23 rounds, a receipt book of Al Jehad, and other documents were recovered from him on November 4, 1993. The family went to SP Pulwama to seek his intervention. After listening to the family, the SP told his constables to make an on spot investigation of the encounter. However, the family believes that no investigation of any sort was made. The SP told the family that he will register a case against the BSF. However, the victim’s father refused, thinking it will annoy the BSF and they will not release his son. When the victim’s father approached the BSF Camp again, he was rebuked for going to the SP. From filing the case in court and searching for the victim from that day, the family has become exhausted. Family members are suffering from immense poverty and health issues. Lot of money was spent by family on health issues resulting after human rights abuse. The case was taken up by a humanitarian group, and they are supporting the family financially on a monthly basis as the case could not be filed in court. The family has already received ex-gratia relief a few years back. The verdict of the inquiry judge was upheld by High Court that the victim has escaped from the custody of BSF. The family filed an application in the SHRC under file number SHRC 2000/213 but till date there has been no action. They pursued the case for around 5 years but then stopped following it as no results were delivered. The family is not only saddened by the disappearance of their only son but has also lost another child, their daughter due to brain hemorrhage as she could not bear the loss of her brother.
74 SHRC: SOCIAL AUDIT REPORT – III Extra-judicial Killing Beighpora, Bagh-e-Mehtab, Srinagar District Hafiza deposing the case
late Javaid Ahmed Mir
he victim Javaid Ahmed Mir was a 35 years old cameraman in a private net- work television channel, Nine TV. According to the family account, on De- Tcember 12, 2008 a huge crowd of protestors had gathered in Bagh-e-Mehtab, during the period of the Amarnath Land Row Agitation. The protestors later indulged in stone pelting against 29 CRPF Batallion, which fired indiscriminately at the crowd. As a result he was shot dead at 4:00 pm on the said day. The family lodged an FIR under no: 140/08 on the same day at the Sadar Police Station, Srinagar. The family filed a case with the SHRC under letter number SHRC/2009/174/2770 and they are still waiting for the hearing.
Custodial Killing Khudi Handwara, Kupwara District Written Submission to the Jury late Bashir Ahmad Dar
he victim Bashir Ahmad Dar was taken up for forced labour by the troopers of 106 Batallion of Border Security Force and later on was alleged to have Tbeen caught in crossfire between the troopers of India and Pakistan wherein he was seriously injured. The injuries later on proved fatal and the victim died. The family approached the SHRC and filed a complaint in the year 2009 under File No. SHRC/2009/313 and it was recommended in 2011 that an ex-gratia relief of Rs. 1 lakh be paid to the family of the victim. But the recommendations have not been till date implemented.
JAMMU AND KASHMIR 75 Custodial Killing Bagh-e-Mehtab, District Srinagar Javed Baqal (brother of the victim) deposing the case
Late Mohammad Rafiq Baqal
he victim Mohammad Rafiq Baqal according to his brother was returning from a wedding late at night on June 10, 2000 and was asked to get down by TMP Rattan Singh, Assistant Commander of BSF on Amira Kadal Bridge and was kept in the custody for the night. His brother was informed the next morning that Baqal was shot dead. He then filed an FIR under No. 56/2000 U/S 302 RPC in Shaheed Gunj Police Station on the morning of June 11, 2000. The marks of extreme torture were visible on the victim’s body. The victim’s brother filed a case in the SHRC and was treated inhumanely at one of the hearings whereby the deceased was labeled as a militant; he then tore the file in front of the commission members. The victims’ family has filed a case in the High Court and is fighting for justice.
76 SHRC: SOCIAL AUDIT REPORT – III Enforced Disappearance Maharaj Gunj, District Srinagar Abdul Ahad Rah (father of the victim) deposing the case
Mohammad Shafi Rah & Mushtaq Ahmed Rah
he two victims Mohammad Shafi Rah & Mushtaq Ahmed Rah were leather businessmen in Kathmandu, Nepal for 10 years. They were arrested in the Tyear 2000 by the D.I.G. Police and the Intelligence Bureau in Nepal, where mass arrest of Kashmiris was taking place at the material time. Out of the 27 arrestees, only 10 were released and the rest are still missing. They were told that both their sons had been transferred to a jail in India. They left for Delhi the very next day and travelled even to Jodhpur in order to locate the whereabouts of their children, but to no avail. They lodged an FIR in two police sta- tions, namely at Zaina Kadal and Shaheed Gunj. They filed a complaint both at the National Human Rights Commission on September 17, 2003 and the State Human Rights Commission under Case No. SHRC/2001/166. However the complaint has not yet been disposed off in either of the commissions and the case is pending in SHRC since 10 years. Since then the case is being pursued by the family in all possible ways, they have approached all government officials and offices but have not received any information regarding their missing sons.
JAMMU AND KASHMIR 77 Enforced Disappearance Baripora, Uri, Baramulla District Aijaz Ahmed Kakroo (son of the victim) deposed the case
Ghulam Hassan Kakroo
he victim was apprehended by the security personnel on September 12, 1990 from his house at 11 am by 7 Sikh Regiment at Lachipora. The family mem- Tbers went to the police station for the registration of the case against the ap- prehending of the person. The SHO of the police station, Bijhama, denied lodging any FIR. After the inaction of the police concerned, the family went to Brigadier JJ Singh of the regiment, who assured that the person would be released within a few days. However after a few days the regiment denied having arrested the said person. The family reproached the police station again for lodging of the FIR against the custodial disappearance, and they again failed to discharge its legal obligation. The family was informed that he has been shifted to JIC Gupkar. They then ap- proached JIC Gupkar, where the officer namely Thakur Jaswant Singh informed the family members that he had been brought there but cannot be allowed to meet him. They continued the search of Ghulam Hassan Kakroo & approached the police station many times. They were kept in dark that the FIR was registered but as a matter of fact no FIR was registered till 1993. The family members then approached the SHRC on March 17, 1999 under File No: SHRC/99/32. The SHRC sought the report from the Police Station Bijhama, and the 7th Sikh regiment. The police station concerned admitted the arrest of the disap- peared person by the security personnel of the 7 Sikh Regiment. The SHRC established that Ghulam Hassan Kakroo was killed in the custody and recommended the ex-gratia relief and compensation on January 4, 2000. But the SHRC failed to direct the police station concerned to conduct an investigation in the custodial disappearance /killing of the victim. Despite the lapse of almost 10 years the police has failed to start the investigation, the family members approached the High Court in 2007 since the recommendation of the SHRC has not been implemented.
78 SHRC: SOCIAL AUDIT REPORT – III Custodial Killing Shiltra Haril Handwara, Kupwara District Nazir Ahmed Chichi deposing the case
late Shamusdin Chichi
hamusdin Chichi was killed by the troopers of 30 Rashtriya Rifles of Indian Army in the year 1996 and the body of the deceased was thrown in the for- Sest and labeled him to be affiliated with militants. His father approached the Hon’ble State Human Rights Commission through a complaint which was instituted on December 10, 2009 under File No. SHRC/2009/319 and prayed that he may be given requisite relief. The complaint was decided by the SHRC vide its decision dated March 7, 2011. The commission concluded in its findings that the case of ex-gratia relief and compassionate appointment is accordingly recommended to state through chief secretary for its implementation. The same has not been given to him despite the lapse of two years though he had approached all the authorities/concerned quarters in this behalf but the respondents have failed to take any action on the decision made by the commission as such, the family was constrained to approach the high court for redressal of genuine grievances which is pending disposal.
JAMMU AND KASHMIR 79 Custodial Killing Shiltra Langate Handwara, Kupwara District Written Submission to the Jury
Late Surya Chichi
urya Chichi was killed by the troopers of 14th Punjab Dogra Regiment on August 8, 1994. His father approached the SHRC which was instituted on SDecember 10, 2009 under File No. SHRC/2009/311, stating therein that his son namely Surya Chichi was killed by the troopers of 14th Punjab Dogra Regiment on August 8, 1994 and prayed that he may be given requisite relief. The same has not been given to him though he had approached all the authorities/concerned quarters in this behalf. The complaint was decided by the SHRC vide its decision dated March 7, 2011. The commission concluded in its findings that the case of ex-gratia relief and compas- sionate appointment is accordingly recommended to state through chief secretary for its implementation. But the respondents have failed to take any action on the decision made by the commission as such, the family was constrained to approach the high court for redressal of genuine grievances which is pending disposal.
Disappearance Narpora, Budgam District Written Submission to the Jury
Abdul Gani Khan
he victim Abdul Gani Khan according to the family members was picked up at 11 in the night on May 21, 1993, from his home by unidentified gunmen. The Tvillage headman assured the family about the lodging of the FIR but actually did not file the same. Since then the whereabouts of the victim are not known. The family approached the SHRC in 2008 but till date no action has been taken on the same complaint of the family. The family still awaits justice.
80 SHRC: SOCIAL AUDIT REPORT – III Custodial Killing Handwara, Kupwara District Written Submission to the Jury late Abdul Rashid Ganaie
bdul Rashid Ganaie was picked up on November 20, 1998 by a patrolling party of 30 Rashtriya Rifles of Indian Army, was tortured in a nearby house Aand then shot dead without any rhyme and reason. His wife Naseema Begum had approached the State Human Rights Commission through a complaint which was instituted on December 10, 2009 under File No. SHRC/2009/35. The complaint was decided vide its decision dated March 7, 2011. The commission concluded in its findings that the case of ex-gratia relief and compassionate appointment is accordingly recommended to state through chief sec- retary for its implementation. But the authorities have failed to take any action on the decision made by the Hon’ble commission as such, the petitioner was constrained to approach the court for redressal of her genuine grievances which is pending disposal.
Custodial Killing Ganapora Langate Handwara, Kupwara District Written Submission to the Jury
late Sajad Ahmad Ganaie
he victim Sajad Ahmad Ganaie was an innocent person and was killed in cold blood by the troopers of 32 Rashtriya Rifles of Indian Army without any Tprovocation on October 24, 2009. As per the family account, the victim was shot dead by the Army which was later admitted by them in their report that he was mistaken by them as a militant. The family approached the SHRC on December 10, 2009 through a complaint under File No. SHRC/2009/314 and it was recommended by the SHRC on January 6, 2011 that the family be given a benefit of SRO-43 but the recommendation of SHRC has not been implemented till date.
JAMMU AND KASHMIR 81 Custodial Killing Tujjar Sharief, Sopore District Ghulam Hasan Shah deposing the case
late Tahir Hassan Shah
he victim Tahir Hassan Shah was taken up into custody by the Army Camp Bomai Sopore on the day of his wedding. Actually in the area the said Army TCamp had a dictum for getting permission for any such function, and the victim’s family had sought the same prior to the wedding function. He was taken up with an assurance that he will be released just after an hour but it was only a piece of leg of the victim that was returned to the family. The family approached the SHRC in the year 2004 who recommended to the state for providing the family an ex-gratia relief of Rs. 1 lakh and a benefit of SRO-43. It was also recommended to investigate the matter and submit a report thereof. Till date the recommendation has been only overlooked with no action taken on the same.
82 SHRC: SOCIAL AUDIT REPORT – III Killed by Unidentified Gunmen Khudi Handwara, Kupwara District Written Submission to the Jury
Late Ab. Rasheed Peer and Mushtaq Ahmad Peer
ccording to the family members, the victims (father and son) were picked up by unknown gunmen on August 25, 1994 and later on their bullet ridden Abodies were found in two different villages. The police though registered the FIR with respect to the case of the deceased but the report filed by them doesn’t disclose any satisfactory investigation conducted by them. The family of the victims approached the SHRC through a complaint under File No. SHRC/2009/304 wherein ex-gratia relief of Rs. 2 lakh and the benefit of SRO-43 were recommended to the government but the recommendation has not been implemented till date. The fam- ily approached the high court for the redressal of their grievance and the case is still pending disposal.
Enforced Disappearance Tengpora, Bye-Pass, Bemina, Srinagar District Azra Begum (mother of the victim) deposed the case
Mushtaq Ahmad Dar
he victim was a 21 years old auto-driver by profession. As per the family, their house was raided by the 20-Grenadiers Army on April 13, 1997 at night and The was mercilessly beaten and tortured at his own home. He was taken away by the army and since then there is no clue about his whereabouts. His family lodged an FIR on April 14, 1997 in the Parimpore Police Station and the FIR papers were given to them quite later, after the lodging of the case. His mother, an elderly woman lodged a case in the SHRC and followed it for about 4-5 years but no recommenda- tion was given by the commission. Ultimately she stopped following the case in the SHRC, and has now filed a case in the high court for justice.
JAMMU AND KASHMIR 83 Custodial Killing Lach Mawer Handwara, Kupwara District Written Submission to the Jury
Late Ab. Rashid War
he victim according to the family account was carrying tea for labourers when he was abducted on October 27, 1993 by a patrolling party of 5 Kumaon TRegiment and was tortured and then shot dead without any rhyme and rea- son. His wife Zareefa Begum had approached the State Human Rights Commission through a complaint under File No. SHRC/2009/320, that she may be given requisite relief. The said complaint was decided by the SHRC vide its decision dated March 7, 2011. The commission concluded in its findings that the case of ex-gratia relief and compassionate appointment is accordingly recommended to state through chief sec- retary for its implementation. The same has not been given to him though the victim had approached all the authorities/concerned quarters in this behalf. The authorities have failed to take any action on the decision made by the commission as such; the family was constrained to approach the court for redressal of genuine grievances which is pending disposal.
84 SHRC: SOCIAL AUDIT REPORT – III Custodial Killing Handwara, Kupwara District Written Submission to the Jury
Late Gh. Mohiuddin Sheikh
ate Gh. Mohiuddin Sheikh was a forest guard. He left for his duty in June 2009. According to the family members, on the next day after he left police Lfound silted head of the deceased in a nearby forest area and till date the body of the deceased has not been found from anywhere. The wife of the deceased ap- proached the SHRC through a complaint which was instituted on December 10, 2009 under File No. SHRC/2009/315 stating therein that her husband Ghulam Mohiud- din Sheikh was tortured and then shot dead without any rhyme and reason. The said complaint was decided on March 7, 2011. The commission concluded in its findings that the case of ex-gratia relief and compassionate appointment is accordingly recom- mended to state through chief secretary for its implementation. The authorities have failed to take any action on the decision made by the commission as such the family was constrained to approach the high court for redressal of genuine grievances which is pending disposal.
JAMMU AND KASHMIR 85 Enforced Disappearance Tengpora, Bye-Pass, Bemina, Srinagar District Abdul Razak Dar (father of the victim) deposing the case
Mehraj-ud-din Dar
he victim, a 27 year old businessman, was arrested from his house by the per- sonnel of the 20 Grenadier on the intervening night of April 20-21, 1997. The Tfamily lodged an FIR on the very next day after his arrest in the Batamaloo Police Station. However, FIR was registered after a year, i.e. in 1998. His father filed a case in the SHRC in 1998. Their case was shifted from one date to another. The SHRC finally recommended an ex-gratia relief of one lakh rupees and a job. After 7 years from the day of recommendation their file was sent to the District Collector, Srinagar’s office and since then no relief has been provided to them. The family tried all possible ways to locate their son and even paid a bribe of six lakh rupees by selling their only piece of land, to a man who claimed that he would locate their son, but all in vain as he cheated them. They also approached various government officials and ministers for help. Their suffering has no end. The victim’s parents had applied for a passport for Hajj, but were refused on the pretext that their son was involved in some form of terrorist activity. The victim’s family includes his old parents, his widow and his two children. At the time of his arrest his son was just one and a half years old and his daughter was unborn.
86 SHRC: SOCIAL AUDIT REPORT – III Enforced Disappearance Tengpora, Bye-Pass, Bemina, Srinagar District Rafeeqa (wife of the victim) deposed the case
Mushtaq Ahmad Khan
he victim, a 24 year old government employee, was arrested from his house on the intervening night of April 13/14, 1997 by the personnel of 20-Grenadiers Tstationed at Boat Colony, Bemina, Srinagar. The Army personnel broke open the gates of his house, locked his wife and small children in a room and then beat him mercilessly in his house. It was not only the victim who was the recipient of extreme torture at the hands of the army but also his family. His wife and parents were also beaten by the army and their bodies still bear marks of torture. The family tried lodging an FIR after a month of his arrest, after looking for him in all the jails of the valley, in the Batamaloo Police Station. However the FIR was not lodged until after three months of the incident. They filed a case in the SHRC in the year 1998 and the SHRC recommended an ex-gratia relief of 1 lakh rupees and a job. However they were given the money after about 3-4 years of filing the case but haven’t been provided with a job as yet. The victim has four children- 3 sons and a daughter. And one of the sons is suffer- ing from psychological trauma, after the night of arrest of his father. His wife also tried bribing a Naib Sobedar of the 20-Grenadiers Army, Nazar Mohammad who assured her that her husband would be handed over to the family very soon but to no avail. She still looks desperately for her husband everywhere.
JAMMU AND KASHMIR 87 Enforced Disappearance Pal Mohalla, Vilgam, Kupwara District Mohammad Sultan Bhat deposing the case
Imtiyaz Ahmed Bhat
he victim, Imtiyaz Ahmed Bhat, an 11th class student, was enrolled in Vilgam Government Higher Secondary Institute, Kupwara and left for school on the Tmorning of July 16, 1999 and since then there is no information about his whereabouts. The family, according to his father, has taken a stand that the victim was abducted by the 23 RR of Army. The family then lodged an FIR on July 20, 1999 under No: 15/99 in Vilgam Police Station. They then filed a case in the SHRC under file number SHRC/2004/396 on January 1, 2004. The SHRC disposed of the case on May 5, 2007 with the judgment of providing the family with a relief of Rs. 1 lakh. However, even five years after the SHRC’s recommendation, no relief has been pro- vided to the victim’s family. The family approached the high court as well.
88 SHRC: SOCIAL AUDIT REPORT – III Torture by Security Forcers Wani Mohalla, Sangrama, Sopore District Mohammad Subhan Bhat deposed the case
Javed Ahmed Bhat
he victim, Javed Ahmed Bhat, was a 24 year old student of the Institute of Public Health & Hygiene New Delhi and had come home for his summer Tvacations in August 2002. He had gone to check his paddy fields in Sangrama Chowk where he was picked up by men in civilian clothes in a vehicle. The victim asked for his release and was told that they will drop him near his home. On reaching Haigam, they turned the vehicle towards Karan Nagar BSF Camp 61 Battalion. They blindfolded his eyes with his red T-shirt and brutally injured him. He was then de- tained in the camp of 61 Batallion BSF, Karan Nagar for 5-6 days and was subjected to third degree treatment. Javed Ahmed was then handed over to Police Station Sopore, in a half dead manner. Meanwhile the family tried to lodge an FIR but was denied on the pretext that the BSF had already lodged one. Moreover, the police was demanding a huge amount of money for the release of the victim. However, his father somehow managed to approach the SHO Police Station, Sopore, but he did not let his son leave. He got bailed after 3 days and his family found out that he was in extreme pain. He was then taken to the Medical Institute, Soura and was in the Emergency Ward for three consecutive days. The doctors then asked his family to take him home. However, he succumbed to his injuries and died at 5:30 am on August 17, 2002. The victim’s father lodged a case in the SHRC under file no: SHRC/2002/368 on November 25, 2002. The SHRC made a recommendation that the family be provided with a relief of Rs.1 lakh and a job under SRO 43 on January 20, 2004. However, eight years have passed since the day of judgment and no relief has been provided to the family.
JAMMU AND KASHMIR 89 Killed in crossfire between two militant groups Lolipora, Budgam District Ajaz Ahmad (son of the victim) deposed the case
Late Abdul Aziz Khanday
y father Abdul Aziz Khanday was a farmer and woodcutter by profession. On July 15, 1992, he had gone to Brahnwad, the area where his in-laws Mlive and got killed in a group clash between two militant groups, namely HM & JKLF at the said area. At 4:40 pm on the same day our family members were informed about his death by his in-laws. However, no case has been registered in the concerned police station about this incident. We sought the intervention of SHRC. We filed a case with SHRC under file number: SHRC/2003/402 on September 1, 2003 to provide ex-gratia relief to the next of kins i.e. the widow and the children of the deceased (us) as we were dependant on Late Abdul Aziz Khanday (deceased).The SHRC on May 16, 2005 disposed of the case by recommending an ex-gratia relief of Rupees 1 lakh and a benefit of SRO-43, to an eligible member of our family. Even after the recommendations of the SHRC, the concerned district collector, Budgam, has failed to implement the orders. We were denied the relief on the pretext that he had been a militant and are suffering due to the negligence of the government from the last seven years.
90 SHRC: SOCIAL AUDIT REPORT – III Enforced Disappearance Noor Bagh, Safa Kadal, District Srinagar Mohammad Subhan Dar (father of the victim) deposed the case
Shabir Ahmed Dar
he victim Shabir Ahmad left his home on July 1, 2005 to attend a meeting in the office of Salvation Movement at Rajbagh Srinagar and did not return Tback thereafter. Since then he is disappeared despite considerable efforts made by his parents to locate their son in different security agencies. After an initial search on July 4, 2005, the petitioner approached Safa Kadal PS, Srinagar, and informed them about disappearance of his son and lodged a missing report, No. 28 dated July 4, 2005, which was later cancelled. On July 4, 2005 the petitioner filed another report in Rajbagh PS as report No. 14 dated July 5, 2005. The occurrence was also published in the daily newspaper. Except filing of report and lodging of FIR, the police did not make any serious attempt to locate the whereabouts of the victim. Feeling helpless, the petitioner lodged a complaint with the State Human Rights Commission on July 17, 2005 and the Commission decided the said complaint on the basis of the report filed by Inspector General of Police Kashmir Zone Srinagar, where in it was mentioned that the victim got disappeared and is missing. While disposing of the complaint, the SHRC in its judgment dated June 13, 2007 recommended the Government to pay an amount of Rs 1 lakh as ex-gratia relief in favour of the peti- tioner. The said recommendation was forwarded to the Government. The family then approached the High Court for getting relief. The family has been given the compen- sation after five years from the decision made by the SHRC, in March 2012. Since the victim was the only earning hand of his parents, the family is now suffer- ing from abject poverty. One of his sisters is still unmarried to look after her parents.
JAMMU AND KASHMIR 91 EXPERT COMMENTS Javed Ahmad Tak Human Rights Defender
tate Human Rights Commission J&K has only a good name that say something of rights but it is a body that only has good paper work. People in pain visit this Soffice or send their grievances/complaints for reporting human rights violations going on in the state. The only intention is that the heinous violations will not reoccur and the victims will get support and rehabilitation. But the tale is something different. The procedure is same – that police department will give the inputs about the case by so called verification mechanism. In most of the cases police department has denied to lodge FIR and have direct involvements in human rights violations, hence same find- ings are reported and no action is taken by the commission. In almost all cases the commission takes six months to one year for hearing it. One month hearing gap is kept. But finally when commission finds that grave human rights violations have been done by the state the recommendations are sent to the J&K government. These recommendations are never implemented and the files remain un- answered in the civil secretariat. Thus complainants feel disappointed and discour- aged. They feel there was only wastage of money and time. The body that has been established to save the morale of humans fully depresses and degrades human ethics. Headless since October 2011, the J&K State Human Rights Commission has shot off a strong note to the government asking it to appoint a chairman and fill up other vacancies - lacunae it says has severely impacted its functioning. At present, the commission, operating in a state with grave human rights issues, labours on with just three members instead of the mandated five which include its chief who has to be a retired judge of the high court. In their annual report, members Amlok Singh, Fida Iqbal and Javed Kawoosa have asked the government to urgently fill the vacancies as the commission was under increasing workload. “This matter is being agitated and re-agitated by the fourth estate day in and day out which does not go well with working of the commission,” the report says. “Also, the vacancy of the chairperson and one member has increased the workload and natu- rally affected the working of the commission.” “We hope that the vacancies will be filled up without any further waste of time,” the commission has said. “Officers and officials who by transfer or retirement cease to be on the establish- ment of the Commission, the government has taken no step for more than a year to fill the vacancies by deputing suitable officers against the posts,” it has said. The deaths and disabilities made by the security forces or militants in the state
JAMMU AND KASHMIR 93 are mostly weighed by the monetary compensations. Some families lose their bread earner or the only care taker in the family. SHRC recommends the limited monetary benefits and sometimes job for the next kin in the family. Thus the person killed gets fully buried and his mother, wife or children mourn throughout life. The general experience in J&K has been that judicial and quasi- judicial authorities such as the State Human Rights Commission (SHRC) have allowed themselves to be conscious of the power and the will of the executive, thereby rendering them subservient to the State. The impunity fostered by the judicial process has been compounded by the existence of draconian laws such as the AFSPA. A human rights activists’ group, International People’s Tribunal on Human Rights and Justice in Indian Administered Kashmir (IPTK), along with Srinagar-based Association of Parents of Disap- peared Persons (APDP), through their report released in December 2012 claimed that hundreds of army and police officers involved in gross human rights abuse have not been prosecuted in Jammu and Kashmir. The report alleges that three brigadiers of Indian Army, besides nine colonels, three lieutenant colonels, 78 majors and 25 captains, and 37 senior officials of federal paramilitary forces were perpetra- tors of various crimes and human rights violations in the state. While releasing the report titled ‘Alleged Perpetrators - Stories of Impunity in Jammu and Kash- mir’, IPTK investigators said at a news conference that the government agencies had not shown any in- clination to hold a fair and transparent investigation. They alleged that the human rights abuse included murder, kidnapping, rape, enforced disappearance and torture. Renowned Human Rights Activist Gautam Navlakha, was present at the press conference along with APDP activists and compilers of the report, Parvez Imroz, Kartik Murukutla, Khuram Parveez and Parvaiz Mata. “There is an occasional willingness to order compensatory relief, but not to bring perpetrators to justice”, they said. They claimed that the role of 500 officials and gunmen had been established, for the first time. Human rights violations, coupled with the complete failure of the investigative and prosecutorial mechanisms in Jammu and Kashmir, are not considered worthy of attention by the Supreme Court is shocking and a damning indictment of the Indian State and all its functionaries. Sometimes victims of human rights violations approach the National Human Rights Commission too, but the simple recommendations are made in favour of the victim. Thus the recommendations are not taken anyway serious by the government of J&K. Therefore, it clarifies the fact that human rights offices are only showcases throughout country including the National Human Rights Commission. It is the defensive mechanism for government that they have monitoring mechanism for the violations of human rights. They save face before the international forums and make them believe that human rights violations are not bothered. But for the victims such commissions are mere buildings.
94 SHRC: SOCIAL AUDIT REPORT – III A.R. Hanjura Advocate and Human Rights Defender
am an advocate by profession and am associated with social activism too. Actu- ally, when we talk about human rights violations in Kashmir, its intensity can- I not be narrated in words. In 1996, the then political party incorporated in its election manifesto that there should be SHRC which will look into the human rights violations committed in the state of J and K. Due to the presence of Art 370, the state of J and K has its own laws. Unless and until the laws are not passed in the legislature of the state, these cannot be imple- mented and applied in the state. Under the provisions of state human rights act, the SHRC was established in J&K. Under the provisions of said act, the members of the SHRC should be associated with human rights working for the protection of human rights. The appointment of Justice as the chairman is fair enough but the members are appointed from the bureaucratic strata who are their close acquaintances, not only this the police officers who have been the worst human rights violators, after their retirement are appointed as members of the said Commission. This has been happen- ing since the beginning. Although the human rights activists have raised fingers upon their appointments, the trend has not changed. The human rights activists who have expertise/experience or concern about the human rights field have not been allowed to be part of commission. With the inception of this commission, there was a hope in the hearts of the common people thinking that their suffering inflicted due to the presence of armed forces and police be addressed. Not only the common people, even human rights activ- ists were hopeful in getting redressal of grievances of the common people. So people including HR Activists started to file complaints with the SHRC. I myself have filed around 200-250 complaints in the SHRC but the result is Zero. There was no investigating agency before, but now they have placed a police of- ficer of an IG level with two-three policemen but they never go to the field to conduct any investigation. In the complaints filed in the SHRC, the same government is asked for filing a report against whom the complaint is filed, obviously the government will file their version of the report, moreover it takes years together for the government to file any report and even if they submit it, it is adverse. Then they ask for evidence in some cases. In cases which happened before 1996 or before the establishment of SHRC, there are no FIRs registered with concerned police stations as the police sta- tions were reluctant to register the FIRs. Some of the FIRs were lodged on the direc- tion of high court. Wherever there were no FIRs registered with the concerned police
JAMMU AND KASHMIR 95 stations, the job of independent investigating agency was to probe the case but practi- cally that doesn’t happen. Secondly, even if in some cases where the Commission after due enquiry or re- ports gets convinced that human rights violation has taken place, it has prepared a measuring rod of ex-gratia relief of Rs 1 lakh or SRO-43 under which on compassion- ate grounds the family is benefitted by virtue of employment to one person. This too has been changed from last few years instead of SRO-43, Rs 4-5 lakh is given to the family on account of ex-gratia relief, and that recommendation is hardly considered by the government since it is stated that the recommendation passed by the SHRC is not obligatory on the state, so it leaves state with an option either to accept or reject the recommendation. The complainant has to approach the high court for the implemen- tation of the recommendation of SHRC, so the existence of SHRC doesn’t make any sense to the people. The people can otherwise also approach the high court with the writ petition without wasting years in the SHRC. It has not been effective in reducing the human rights abuse in Jammu and Kashmir. People plead their cases themselves at the commission as there is no legal mechanism at the disposal of the complainants. The complainants turn emotional so it is difficult for them to take forward the pro- ceedings of the cases. The SHRC is headless since 2011, as there is no chairperson. A man well built bearing a long beard from my village Hanjura went 3-4 km outside his home who was arrested by BSF en-route. He was interrogated on way but since he could not speak Urdu language because of being illiterate was suspected to be a foreigner. He pleaded to be a resident of that village and was even taken home for identification but was apprehended. His dead body was found the next day somewhere. We went to the police station and were informed that an Afghan national has been killed and needs to be buried. After three days of his burial the same police station said that the slain was a resident of the village. The FIR was lodged by the BSF in which the killed was named as Abu Sulaiman with fictitious address. Then we approached the district magistrate for the permission of exhumation of the body and after exhumation he was buried by his family with final rituals in his native graveyard. I am pleading his case in SHRC for last 12 years, all the required enquiries are done. The SHRC came up with the recommendation of Rs 1 lakh as ex-gratia to the family of deceased after 12 years. What can we expect from such an institution? Though there are cases very rare where the compensation of Rs 4 lakh has been recommended by the SHRC and the family has been provided also. There is a district level committee headed by the district magistrate and consti- tutes the deputy commissioner, concerned SSP and other members who hold a meet- ing after 5-6 months and assess these cases in their respective area and analyze the reports of CID and police and if they get to know that in some case the person was an ex-militant or his involvement in any such activity, his family is denied the same despite the recommendation given by SHRC or an order of the high court. The cases which get a clearance from the CID and the police are generally benefitted by the recommendation.
96 SHRC: SOCIAL AUDIT REPORT – III G.N. Shaheen Advocate and Human Rights Defender
welcome you all to the small gathering of victims in the ocean of human rights violations which are being perpetrated not only since 1990 but since 1947 itself. I When the entire sub-continent was looking for the sunrise of freedom, unfor- tunately this part of the globe wielded in the darkness of slavery, darkness of not rule of law, but ‘unrule of law’. No doubt democracy is a norm across the globe and the Indians cherish and champion for the democratic causes across the globe. But what is the plight within India’s own house is a sorry state of affairs for everyone to observe. I, as a student of law and a practising lawyer in the High Court of Jammu and Kashmir since 1990, have been watching the worst kinds of human rights violations in Jammu and Kashmir. But I hope and trust this august body will not act like B.G. Varghese who gave a report on Kunan Poshpora where 57 women of all ages from 8 years to 80 years old were raped but B.G. Varghese is on record stating that nothing had happened. This is the democratic psyche, intellectual psyche of Indians. I was not allowed to go but I had lodged a complaint before National Human Rights Commis- sion but the overall attitude and response from Indian Authorities was found to be dismal. I personally believe that it is the general psychology of Indian intelligentsia, In- dian bureaucracy and Indian politicians that there should be a perpetual institutional denial of justice to the people in Jammu and Kashmir. I will give you a small example; we all sympathise with rape victims but are neither sensitive to the needs of the people of Jammu and Kashmir nor are they sensitive towards the situation from which they are suffering day in and day out in the state. Those foreign babus, have made things more complicated for the people in the state of Jammu and Kashmir and that result in more aggravation of human rights abuses. It is in consultation with police authorities of the state that the human rights com- mission makes its findings. Out of my experience, a number of times they come up with their versions because there is a Superintendent of Police who is stationed there and does not want the feedback of the field agencies which can bring out the truth and thus a gross denial of justice. So I have observed it many times that if the report made by field agency favours the petitioner, the SP who is stationed there says this is not the correct report and sends a fresh report. The fact-finding mission/obligation as the duty of HRC, I don’t
JAMMU AND KASHMIR 97 think they are performing in a very independent way/transparent manner. This is one aspect of the problem. The NHRC for example takes a suo motu cognisance or the Supreme Court of India or the various high courts across India take suo motu cognisance of certain public interest matters but what we feel in Jammu and Kashmir is that our judiciary is also insensitive. I have my experience. I am dealing with a case you may be aware of it, the rape victims of Shopian: Asiya and Nelofar who were first kidnapped around 5:30 pm on May 30, 2009. Their dead bodies were recovered the next day on the bank of a tributary of river Jhelum at Shopian. I conducted a personal investigation; I went to the spot on the next day and met two ladies namely Zamrooda and Suraya who nar- rated horrible stories. They were unable to describe in words their condition but the government stated that neither was there any kidnapping nor was anyone raped and there was no death or murder when the dead bodies were present. The SP namely Javed Ahmad entered the hospital when the medical tests were being conducted; he opened fire from there and all slides were damaged. Then I filed a PIL before the high court which is pending there. I can say with honesty and certainty that Justice Barein Goish who was Chief Jus- tice of Jammu and Kashmir High Court was very keen to seek the identification of the guilty to prosecute and punish them under the law but he was transferred. Before his transfer he called us to his office and said that, “I am being transferred as a matter of punishment...” because he was not allowed by the state to pursue the cause of justice as the chief justice of Jammu and Kashmir High Court. Therefore, I personally believe Akbar Allahbadi when he says, “raqeebun ne rapart likhwai ja ja ke thaney main Akbar naam deta hai Khuda ka is zamaaney main wahi mulzim wahi munsif thehrey...” I was fighting the cases of Wamiq Farooq and Zahid Farooq. In fact in Zahid Farooq case we were able to get the arrest of a commandant of BSF Mr. Bidli and his associates who had been involved in the killing of 11 year old student Zahid Farooq from Brian Nishat. He was in jail. I was trying another case of Wamiq Farooq, an 8th class student who was killed by a police officer Abdul Khaliq an ASI and one more. I moved to the CJM Srinagar who directed an enquiry. An enquiry was conducted where in everything transpired against the accused. Another case I was dealing with that of Tufail Mattoo. It was Mian Qayoom and I who tried to seek justice for the family because Mattoo was an 8th class student and killed in the same fashion like Wamiq Farooq was killed. So the phenomena continued. It continued on 3rd day when another boy at Qamarwari downtown was killed, on next day, two boys from south Kashmir were killed. About 6o percent of children were killed by Indian Security forces in which the major role was played by Jammu and Kashmir Police which is acting like Punjab Police to crush the sentiments of the people. The government felt the heat that we are pursuing these cases before the court so the President of J&K Bar Association Mr Mian Qayoom was picked on July 7, 2010 and was straightaway rushed to Hiranagar Central Jail and detained under provisions of PSA. After 10 days i.e., on July 17, I too was picked and rushed to 450 kms away
98 SHRC: SOCIAL AUDIT REPORT – III from my home where I was detained for two months. My habeas Corpus petition was pursued by the lawyers before the high court. The high court came to the conclusion that these detention orders are bad in law because they are passed in contravention to the rules. I was taken to Joint Interrogation Center, Jammu, where I was kept without any proper legal recourse for seven days. After seven days the SP JIC served me another detention order and I was taken to Court Boulvard Jammu, but the detention order was also quashed by the high court. Since it was on the same identical grounds with all baseless accusations which were in the earlier detention order and the grounds of detention order, was also quashed. Instead of releasing I was again taken to the JIC Jammu and after 14 days I was taken to the JIC Srinagar and from Srinagar I was taken to Police Station Maisuma. When detention orders were quashed by the high court, there was no excuse for the government to keep me in detention which they did again. I was again taken to Court Billvard Jammu for third time. But on April 3, 2011, this third detention order was also quashed, but the executive authorities and the champion of human rights vio- lations Mr. Ashaq Bukhari in Srinagar and the then IGP Mr S.M. Sahai did not allow my freedom. I was not released but fortunately Amnesty International Team and some group of human rights/intellectuals including Seema Mustafa came here and others who intervened and my release was effective on April 17, 2011 after a prolonged pe- riod of nine months without reason. So this is what happens with a lawyer so it is not only the victim, it is not only common man who is suffering at the hands of the State but the worst part of it is that the human defenders are the worst sufferers. Human Rights Commission (HRC) would have issued an advisory. The HRC has within its powers to issue an advisory to the state instrumentalities, state actors in the light of a judgment which was given by the Hon’ble Supreme Court in the case of D.K Basu versus State of West Bengal where those recommendations are given but those recommendations are not followed. In that case HRC can issue an advisory that freedom of speech, right to life can’t be curtailed under any circumstances. Out of my own experience, the prisoner in a jail in Jammu and Kashmir suffers worst of human rights violations as he has not been given any of the rights available to those outside of Jammu & Kashmir. The SHRC can constitute its own special teams to visit the jails to see the plight of the prisoners inside the cells. SHRC can make a fact- finding team and ensure that complaints do follow, but instead of taking cognisance of some cases which are published in the papers, they are not taking suo motu cognisance like the NHRC takes. Thirdly, what is important is that the SHRC can make a recom- mendation to the government that either you empower this HRC so that it is an ef- fective body in terms of the protection and promotion of human rights in Jammu and Kashmir or you wind up because it is an illusion with the public at large so this illusion in the face of human rights commission is to be addressed. I would also like to mention the important aspect of the fact that there is a con- stant policy of institutional denial of justice in Jammu and Kashmir whether it is at the hands of the executive authorities or it is at the hands of the judiciary because judiciary
JAMMU AND KASHMIR 99 in modern democratic systems is a very important functionary of the state who have a very pro-active role to play. We are forced by the circumstances to come out with a clean picture which is emerging in the state of Jammu and Kashmir so that somebody hears. We are very grateful to this galaxy of intellectuals who are giving audience to the victims of Jammu and Kashmir who are sufferers not of today but since centuries and the worst suffered of present day.
100 SHRC: SOCIAL AUDIT REPORT – III Prof. Hameeda Nayeem Human Rights Defender
will not give you case to case but rather I will try to build a context how things are taking place. For that we will have to go back to 90s very briefly when peo- I ple’s resentment transformed into revolt against the Indian state. The response of India had not been to invoke with Kashmir, a dialogue, but instead sent huge army to respond to the situation so they tried to crush the entire rebellion with the armed forces. As a result of that, the response to the demand of right to self determination and all other rights, has been suspended. As a result, actually it was given a legal sanc- tion by declaring AFSPA in Kashmir in 1991. You are giving blanket immunity to the forces against all prosecutions. Therefore, the militarisation ordinarily reflects the military behaviour of the State but so far as Kashmir is concerned militarisation has been used for domestic repres- sion. Or you can say Kashmir symbolises an intersection between militarisation being used as a tool for domestic repression and militarisation being used as external defence. That we have seen day to day because when the clearance for passport is to be given the CM has no role in it, it is ultimately the police, who say it is up to Intelligence Bureau (IB) of India, IB says it is up to the Union Home Ministry, therefore, in real- ity even Kashmir police are directly under Union Home ministry. Because you have AFSPA at your disposal, it has been misused because on the basis of mere suspicion you can go into any locality and you can destroy the entire locality because they say they suspected there was a militant activity. And we have seen there is a place in Lal Chowk, Ali Jan Complex and this belongs to the elite class, and there was an attack launched on some Government building and that time they could act in a way that they could save the building so if you go back to 90s and so on and so forth you will find out that entire localities, shopping complexes and on daily basis dozens of houses were destroyed because they say a militant has passed this way. We never found any militant in these daily operations no militant was found and it is during operations the fake encounters are staged, there is total crum- bling down of rule of law in Kashmir and the democracy we are talking about really does not arise. It does not exist as the Government of India has reduced the meaning of democracy to periodic electoral processes and even those electoral processes are manipulated in such a way that they always get the mandate they want and therefore they can have the government of their own choice in Srinagar. That has happened and we don’t need to be told that in last elections 60 percent of people voted but we know how that mandate is manipulated, how you contest elections in those areas in Kashmir everywhere.
JAMMU AND KASHMIR 101 I went to hospitals to see the persons who have got fire arm injuries; they were not less than 2000. I have made dozens of trips to these hospitals and asked those people, where you using stones? There was only one person who said I pelted stones. In certain cases there are identified policemen who have killed these boys but no prosecution has taken place so far in those cases and these boys continued to be picked up and harassed every time. You have so many boys booked under PSAs and they have been lodged into jails. Another thing, the political space has been totally shrunken in Kashmir. You say Syed Ali Shah Geelani, you may agree or not agree with his ideology but you cannot crush a person by putting him under house arrest, an octogenarian man who has been put to house arrest for so many months. He is not even allowed to pray in the mosque. What does that mean? Religious rights are not being allowed to be exercised. It is not only him, most of the times on Fridays political leaders are kept under house arrest so that they don’t come out, they don’t pray and they don’t speak to the people. This has happened for the last three years especially. Practically SHRC has not done much. Even if it has given some recommenda- tions, the government has not responded. Afzal Guru’s hanging has given the greatest psychological blow to Kashmiris and there is total disconnect now because we see there is total miscarriage and judicial ter- rorism in Kashmir as far as Guru’s case is concerned that has put them in the coffin.
102 SHRC: SOCIAL AUDIT REPORT – III Inam Un Nabi Human Rights Defender
he basic rights of the Human Species are called Human Rights. Under section 2 of the State Human Rights Commission Act (SHRC), the human rights Thave been defined as Right to life, Right to liberty, Right to equality, Right to dignity etc. The composition of the commission, mode of appointment and the State Human Rights Commission Act gives ample powers to the commission to investigate the complaints and even take suo-motu action in HR violations cases or on media reports. Besides inquiries it can give recommendations, intervene into court cases with the permission of the court and also file complaints for prosecuting the HR violators. It is very unfortunate, that SHRC is a toothless tiger. Now, it is a dead horse. As per the official data, the commission has received over 6,000 complaints of human rights abuses since its inception in 1997 under Jammu and Kashmir Protection of Human Rights Act. More than 4,600 of these cases have been disposed. The com- mission is entitled to deal with cases of ex-gratia relief, release, rape, harassment, disap- pearance, custodial death, murder, death investigation, compassionate appointments, compensation for death, security cover, service matters, kidnapping and land cases, etc. Despite claims by the successive governments to provide full support to it, the commission, as per its latest annual report, continues to await fulfilment of memo- randum of demands regarding logistic, infrastructural, financial and administrative spheres. One such demand has been about the proper accommodation which contin- ues to have telling effect on its functioning. The infrastructure and resources provided to the J&K SHRC, however, are in no way “suited to the smooth conduct of its activities”. Apart from the lack of physical resources, the SHRC is beset by a number of problems related to its powers and its autonomy, which have had a major impact on its functioning and credibility. First, the SHRC is dependent on the state government for funding, and must ap- proach the government every time it requires an appropriation. This is unacceptable. The SHRC must not be reduced to a dependent extension of the state govern- ment. Moreover, the current procedure is administratively inefficient, with the SHRC having to formally apply to the state government’s Finance department for funding each of its requirements. The SHRC should be spending its time independently in- vestigating abuses, not filling out paperwork requesting furniture, office supplies and other essential facilities. The Paris Principles state that the funding of a human rights institution should be assured and adequate. The SHRC’s resources, however, have not increased in conjunc-
JAMMU AND KASHMIR 103 tion with the needs of the people of Jammu and Kashmir. In 2002, the Amendment to the Jammu and Kashmir Protection of Human Rights Act (PHRA) stripped the SHRC of its ability to appoint its technical staff and transferred this power to the gov- ernment. This is a serious problem. The SHRC cannot now appoint its own staff, and the government has failed to do so.
Non implementation of the recommendations The recommendations of the J&K SHRC remain unimplemented. In July 2006, the then Chairman of SHRC Justice A.M Mir resigned in protest against what he termed “growing human rights violations in the state and non-implementation of commis- sion’s recommendations.” In his resignation letter to the then Governor, Lt Gen (Retd) S K Sinha, Justice Mir stated that SHRC was an “eyewash to befool the world community”. He wrote - “During my tenure, not a single recommendation made by the commission was implemented. SHRC has not been able to accomplish the object for which it was established. I waited for long in the hope that my efforts might yield some results.” On February 26, 2010, Chief Minister Omar Abdullah during the first budget session of ruling NC-Congress coalition pledged to adequately strengthen the Jammu and Kashmir State Human Rights Commission. Omar Abdullah stated “I would en- sure strengthening of Commission to the extent that its Chairman need not leave the way Justice (Retd.) Ali Mohammed Mir had left.” However, nothing has changed. In February 2011, the then Chairman of the State Human Rights Commission, Justice (Retd) Bashir-ud-Din during his meeting with the Government of India-appointed interlocutors stated that the existing Hu- man Rights Protection Act needs “drastic changes and amendments” to make it more forceful. The Chairman further told that “the powers that the Commission should be vested with are not there. The commissions’ recommendations need to be acted upon both at the centre and state level.” In its 2008-2009 Annual Report, the SHRC Chairperson Justice (Retd) Bashir- ud-Din stated that the provisions of the Human Rights Protection Act at first sight give an impression that the Commission is an autonomous body but on closer exami- nation prove that it is not. Justice (Retd) Bashir-ud-Din further accused officials of brushing aside its recommendations or taking these lightly and commission’s recom- mendations are rather for most part either not followed or there is a refusal to comply with them on flimsy grounds and that too at the level of Patwari and other revenue officials or at the instance and report of a constable.
Police and officials scrutinising SHRC orders! Further, there has been lack of support and cooperation from the state government and its agencies including deputy commissioners and police. In its Annual Report 2005-2006, the SHRC pointed out that the government first forwarded the commis- sion’s recommendations to the concerned district commissioner for verification which effectively made the commission’s findings redundant. The government’s action on cases was effectively to subject the case to further illegal scrutiny. The SHRC enjoys
104 SHRC: SOCIAL AUDIT REPORT – III quasi judicial powers and its recommendation can only be subject to judicial review. In March 2011, the SHRC castigated the deputy commissioners of the State for their passive response in human rights cases and fined the Deputy Commissioner of Kupwara for erring in discharge of duty in investigation in a murder case.
No investigation agency The SHRC has no independent investigation agency. The Annual Report 2004-2005 of SHRC revealed that in the absence of an independent investigating agency, the SHRC had to be dependent on the State Police to conduct investigations even if the cases were against the police personnel. Under such circumstances, impartial investiga- tion was not possible. In its 2008-2009 Annual Report, the commission had asked for its own inde- pendent wing headed by an Inspector-General to carry out investigations into com- plaints of human rights violations. As per Section 11 of the Jammu and Kashmir Protection of Human Rights Act, the state government is bound to depute a police team to the commission headed by an officer not below the rank of an IGP for prob- ing the complaints. However, in its 2008-2009 Annual Report, the SHRC stated that the investigating agency has been without the services of an IGP. Even policemen to be part of the investigative staff have not been posted to its designated strength. Out of 15 sanctioned constables only three have been placed at the commission’s disposal. Besides, five head constables have also not been made available. According to the 2008-2009 Annual Report of the SHRC tabled by the Minister of Finance Abdul Rahim Rather in the State Legislative Assembly on April 1, 2010, 404 cases of human rights violation were instituted by the commission which included 6 rapes, 43 disappearances and nine custodial deaths during 2008-09. Due to lack of independent agency and lack of investigation police team it will not be possible for the commission to carry out investigations with rising cases of human rights violations being reported to it.
No financial autonomy The SHRC suffers from acute financial shortage and is fully dependent on the state government. The Annual Report 2004-2005 of the SHRC stated that the SHRC was financially “left totally dependent and at the mercy of the government” which endan- gered the independence of the commission. Further, the 2002 amendment to the Jammu and Kashmir Protection of Human Rights Act clipped the commission’s power to appoint its technical staff, which re- sulted in dependence on the state government for the same. The state government continued to fail to provide adequate infrastructure. In its 2008-2009 Annual Report, the commission expressed resentment over the delay in providing a separate building to it. The report states that the state government in 2001 had decided to handover the Old Settlement Record Room building at MA Road in Srinagar to it. However, not even repairs have been carried out and renovation and construction work of building has not yet begun.
JAMMU AND KASHMIR 105 Chapter-III Jury Report
106 SHRC: SOCIAL AUDIT REPORT – III Background
A Fact Finding Meeting (FFM) was organised on the functioning of J&K SHRC in the state of Jammu & Kashmir by Human Rights Law Network (HRLN) with sup- port from civil society organisations in Srinagar, Jammu & Kashmir. Also, several vic- tims and experts testified in front of the jury, which comprised of the following jurists:
• Justice (Retd.) H. Suresh, Retd. High Court Judge, • Mr. Bharat Bhushan, Former Editor, Mail Today, and • Prof. Mahendra Lama, School of International Studies, JNU
The following section is the jury report of the FFM conducted in the state of J&K.
Introduction
Today, we heard about large-scale violations of human rights of the people of this state (J&K). We went through the oral and the written testimonies of about 22 victims and their kin. We also heard testimonies from experts working in the field of human rights in J&K. We went through the testimonies and evidence presented before us and here- with present our observations and recommendations in this report.
Observations
One thing is clear to us, that there is a sense of suffering and injustice amongst all those who made their statements before us. It cannot be gainsaid that the Armed Forces (Jammu & Kashmir) Special Powers Act has been in the force for nearly two decades in this state. This Act has been misused and is being misused wherever it is made ap- plicable, like in Manipur, for example. Therefore, if we take this situation into account, this draconian law has undoubtedly facilitated grave human rights abuses including “disappearances” by the very nature of the power bestowed upon the armed forces. Any abuse of powers by the armed forces is criminal offence. It should promptly be investigated by an agency independent of the armed forces, followed by an impar- tial prosecution. The testimonies of all witnesses clearly establish that there has been no satisfactory investigation by any agency or authority in the state, leave alone any prosecution. On the other hand, we get an impression that all institutions of the state, the executive, the legislature, the state human rights commission, and to a certain extent even the
JAMMU AND KASHMIR 107 judiciary have failed to do justice to the victims of “disappearances” and other human rights violations.
General Findings
• Majority of cases presented in the FFM pertained to the allegations of atrocities by the security forces. Through the cases deposed in the FFM, it was observed that most of the state agents i.e. security forces like the police and armed forces are responsible for gross violation of human rights. As a consequence, large numbers of civilians have died, including women and children. • There were cases of custodial deaths, enforced disappearances, police inaction, violence against children etc. • The judicial machinery as well as the SHRC has barely functioned. A number of cases filed in the district courts and high court and J&K SHRC have been pending for years, and there are numer- ous cases which corroborate the lack of judicial action taken in terms of awarding compensation and instructing the security forces to produce the disappeared and so forth. • The state human rights commission has no power to investigate paramilitary and military excesses, though it does have the power to request the investigation reports of the enquiry conducted by the paramilitary and the military forces. The SHRC seems to have failed to exercise its powers proactively to provide justice to the victims. The general trend is that the state as well as the central government ignores the recommendations made by this commission. • There is shortage of staff at the commission. Also, there have been no representatives from civil society in the commission as mandated under the Act. • To work efficiently in the field of human rights it is necessary to work in collaboration with or- ganisations working in the field of human rights. But the state commission does not seem to be interested in doing that. • From the testimonials of the victims gathered in the FFM, it is quite visible that the commission cannot even recommend prosecution or cannot even act on its own, even when they know and admit that the victim has faced atrocities. And even in the cases where the commission has recom- mended relief, the government has just failed to comply with it. This needs to be corrected as it is like making a mockery of statutory body i.e. the SHRC. • In some cases, the SHRC sanctioned an ad-hoc payment of Rs. 1 lakh to the victims/survivors. But the government would not pay this amount. As a result, the victims/survivors were forced to file writ petitions to get that meagre sum. These petitions are pending for years, with no relief for the victims from any institution.
Recommendations
• The controversial Armed Forces (Jammu &Kashmir) Special Powers Act should be withdrawn from J&K. Even the Public Safety Act and other anti-terror laws should correspond to the provi- sions of the International Covenant on Civil and Political Rights (ICCPR) which India has rati- fied. It should be noted that India has been repeatedly criticised in the UN Human Rights Com- mittee for the existence of the Armed Forces Special Powers Act, which violates crucially several articles of the ICCPR. • Keeping in view the large concentration of military and paramilitary forces in the state of Jammu & Kashmir, which is disproportionate to the civilian population and is also making civil admin-
108 SHRC: SOCIAL AUDIT REPORT – III istration ineffective in many matters, the Government of India should take immediate steps to minimise the number of these forces in order to bring relief to the civilian population. • We recommend the establishment of a special judicial authority making an independent and thor- ough enquiry into all allegations of human rights violations, including disappearances, custodial killings, rape, torture, including torture of prisoners, fake encounters, and all other cases related to excesses by the security forces. Every case of killing by the police and the security forces in situ- ations like protests, demonstrations, riots, etc., should be followed by a judicial enquiry into the police/security forces firing/actions, followed by a proper, time-bound administrative action. It is made clear that the police have no licence to kill anyone in any situation. • Provide proper and adequate rehabilitation to families of deceased, injured, and traumatised vic- tims. • Compensation as interim relief for the victims and their families should be arranged promptly. Compensation should be adequate and purposeful. Compensation should be for both injuries to person as well as for damage to property, i.e. houses, etc. • The state should immediately establish fast track courts for the purpose of trying the large number of cases which are pending. • Both the state government as well as the central government should take immediate steps to ad- dress the sufferings of detainees who are languishing in various jails and interrogation centres in and outside the state of Jammu & Kashmir and have been complaining of torture and inhuman treatment inside the jails. • The state should provide witness protection since many of the witnesses are being threatened. • According to Section 19 of the J&K PHRA, 1997, the J&K SHRC has the power to make recom- mendations to the state government in matters of violations of human rights. The state govern- ment should be more responsive towards such recommendations made by the commission. These recommendations, coming from a statutory body constituted under an Act, should be respected and complied by the government. Further, the commission itself shouldn’t hesitate in approaching the court if its recommendations are not complied by the government. • The commission should involve people i.e. activists, lawyers, judges etc. working in the field of human rights, in its complaint handling procedure, since it lacks skilled staff. The expertise of these activists, lawyers, judges etc. can be utilised in meting out justice, and proper and timely relief to the victims of gross human rights violation. • The commission should have powers to investigate with independent investigators, in cases of fake encounter killings, torture and atrocities committed by the armed forces. In such cases of torture, rape, killing, arson etc., the commission can also direct the police to enquire into the matter. • The commission should organise seminars, workshops etc. on human rights issues in cooperation and collaboration with civil society groups, including NGOs and other organisations working in the field of human rights, to make individuals aware of their rights, which will consequently empower them to fight for their rights. Also, it will result in making people less vulnerable to violations. • The commission, in order to function effectively, should be made independent from the state government. • The commission should be equipped with requisite resources to hire more staffs in order to ensure that all cases are dealt with in a timely and a fair manner. • SHRC response to the complaint should be made time bound. There should be a limitation period.
JAMMU AND KASHMIR 109 • Many cases are not taken up by the J&K SHRC on the excuse of them being ‘sub judice’. The J&K SHRC should take up cases even if they are sub judice, to assist in and fasten the process of justice. The state commission is amply authorised to intervene, with the permission of the court, even if the matter is pending before the court, as envisaged in Section 13 (b) of the J&K PHRA, 1997, and it should not hesitate in doing so. Section 13 of the Act with regard to the functions and pow- ers of the commission should be followed. • The investigation wing of the commission should be decentralised at the district level, given the large number of complaints coming to it as well as considering the geographical and demograph- ical vastness of Jammu & Kashmir. • Human rights courts need to be operationalised at district level, as provided under Section 20 of the J&K PHRA, 1997. The recommendations of the commission which are not adhered to should be taken to courts for proper redressal and closure. In the sub judice cases, the commission shouldn’t just sit back but instead should act proactively and work towards providing relief and justice to the victim of human rights violation. • The commission should utilise the services of the state legal service authority to provide free legal aid to the poor, vulnerable and marginalised victims of human rights violation. • The commission should work towards improving the human rights situation in the state by creat- ing mechanisms to defend the activists who are working for the cause of human rights. • The commission needs to be made both financially and politically independent, on the lines of the courts, so that it could work with more transparency and without undue interference. Such independence will help it function more impartially which will further enhance the commission’s legitimacy and authenticity in the eyes of the people. • And above all the commission, irrespective of the fact as to whether they have power or not, should openly declare its solidarity in respect of all violations of human rights, by openly pronouncing and condemning any violation of human rights by any state agency.
110 SHRC: SOCIAL AUDIT REPORT – III
gujarat Salina Wilson | Ayesha Khan | Mathew Jacob
SL.No 01 City Ahmedabad Total Cases before Jury 18 Date March 17, 2013 Jury: Justice Hosbet Suresh (Retd. Judge, Bombay High Court), Adv. Girish Patel (Senior Advocate, Gujarat High Court and Human Rights Activist), Urvish Kothari (Journalist), Professor J.S. Bandukwala (President, PUCL Gujarat), and Meera Velayudhan (Senior Political Analyst, Centre for Environment and Social Concerns)
Networking Groups Anandi; Behavioural Science Centre (now known as Human Development Resource Centre) ; Centre for Social Justice–Jan Vikas; Darshan, Gujarat Lok Samiti; Jan Sangharsh Manch; Jyoti Karmchari Mandal; Navsarjan; Paryavaran Mitra; Paryavaran Suraksha Samiti; Sahiyar; and Gujarat Vidyapeeth The independent people’s tribunal on the functioning of Gujarat state human rights commission EXECUTIVE SUMMARY
Gujarat State Human Rights Commission
The Gujarat State Human Rights Commission (GSHRC) was constituted under the Government Home Department Notification No. GG/52/2006/HRC/1094/GOI-I (Part 2) IV Dated July 12, 20061. Prior to that, Human Rights Committee consti- tuted in March 2002 was working independently. The headquarters of the commission is located at Sector-17 near Town Hall in Gandhinagar. The commission has the powers of a civil court and authority to inter- vene, award compensation for wide mandate and can monitor the implementation of its recommendations. The commission can initiate action suo-motu or on complaint by victim or any other person on his/her behalf for violation of human rights and abet- ment thereof. Negligence in prevention of such violation by a public servant can be looked into by the commission. The commission can also intervene in any proceedings involving any allegation of human rights pending before a court with the approval of such court2. According to the Gujarat State Human Rights Commission Regulations (Noti- fication No. HRC/102006/Est., dated December, 22, 2006), the GSHRC shall hold its meetings and sittings in its office or at the camp office of the Chairperson located at Gandhinagar. However, it may in its discretion hold its meetings and sittings at any other place in Gujarat if it considers necessary and expedient3.
Independence One of the important parameters for the independence of the state human rights com- mission is the independence of its investigation wing. Yet, every year a number of cases are entrusted to the police for inquiry. Some of these cases would be against the very police that are the accused in the complaints. In such a situation there is a clear conflict of interest. In the case of GSHRC, the commission itself admitted that even in the case of alleged police atrocities or custodial death, information is called for from the concerned head of the department/ office. They are directed to take necessary legal action and then send reports. Justice Sinha, the former Chairperson of the Gujarat
1. http://ghrc.guj.nic.in/Documents/Gshrc-About.htm 2. Section 12, PHRA, 1993 3. GSHRC Regulations 2006
GUJARAT 115 State Human Rights Commission in the Annual Report 2009-10, declared that the “lack of complete composition of the state commission, on account of vacancies in the office of the members, officers and other skilled as well as unskilled staff, calls for speedy remedial measures. The need for recognising and granting complete financial autonomy to the state commission as contemplated and stipulated in Sec- tion 33 (2) of the Act, which is absolutely necessary for gearing up the machinery to deal with human rights issues appropriately and efficaciously, warrants serious and prompt attention”.
Awareness About the Commission The State Human Rights Commission has a statutory responsibility (Section 12-h of PHRA, 1993) to spread human rights literacy among various sections of society and promote awareness about the safeguards available for the protection of these rights through publications, the media, seminars and other available means. During the Independent People’s Tribunal on the functioning of Gujarat State Human Rights Commission, civil society organisations revealed that there was no awareness about the GSHRC’s existence, and those which knew about its existence stated outright about its ineffective ac- tions and lackadaisical orders. The very fact that even civil society organisations, let alone victims, are unaware of the existence of the very commission reflects the commission’s lack of commitment to this requirement as per the PHRA, 1993.
Accessibility Moreover, the website of the commission is not updated. It has upload annual reports of 2006-07, 2007-08 and 2009-10 only. The other annual reports are yet to be uploaded on its website. Section 12 states in detail the powers and functions of the commission, yet no information is available on how it is being implemented and how the powers is being used with respect to the cases received by the commission. Nor is there an online portal to check the status of a complaint filed. The commission is located near Town Hall in Gandhinagar with easy access to public transport. Yet it is not easily acces- sible for people living in rural areas. Although the complainant can file their petitions by post or fax, their presence is required during the trial. It is during this time that complainants find it difficult to reach the location.
Activities with NGOs Statutorily, every human rights commission should establish and maintain close contact with non- governmental organisations and in fact, such collaboration would only help the commissions to en- hance their visibility and inform general public of their existence. Yet, the GSHRC does not actively participate in activities by the NGO sector or involve them in the commission’s work. Such an isolated method of functioning has rendered the GSHRC invisible for both, the civil society and victims of human rights violations. Trupti Shah as an expert speaker representing a woman’s organisation named Sahiyar, stated during the Independent People’s Tribunal on the GSHRC that as an organisation, they were not even aware of the existence of the state human rights commission. This not only brings to light the fact that the commission has not made any efforts to make itself accessible to the general public, but also that it is not seen as a potential justice delivery body where people would put their faith in.
Operational Efficiency As per the GSHRC’s Annual Report of 2009-10, the GSHRC states that most of the petitions received by them pertained to police, domestic violence, discrimination against SC/STs, service disputes, women
116 SHRC: SOCIAL AUDIT REPORT–III and their rights violations, children, mafias, underworld criminals, women and private property rights4. Data retrieved in the application by HRLN and as shown in Table 1, reveals that the pendency rate in GSHRC has gone up significantly after 2011. Clearly, the commission is struggling to deal with the number of complaints it receives every year. Furthermore, the data regarding cases “disposed of ” has to be rethought. During the depositions at the IPT on the functioning of GSHRC, many cases that were presented were either dismissed in limine by the GSHRC because it was sub judice or even in cases order were issued it was not even verified by the commission whether or not it was complied with. The GSHRC however states otherwise; it states that when an applicant files a petition or complaint with the SHRC, the commission does not close the case without scrutinising primary information, maintain- ability and jurisdiction. Complaints received in the commission, are duly and properly processed and submitted to the concerned judicial authority for final decision, as the GSHRC states in its response letter. Moreover, the GSHRC upholds that they have not heard from any applicant or complainant that the orders passed by them have not been complied with.
PATTERNS OF HUMAN RIGHTS VIOLATIONS IN GUJARAT
According to the National Crimes Records Bureau Report ‘Crimes in India-2011” issued by the Min- istry of Home Affairs, Government of India, Gujarat has 123371 cases registered as total cognisable crimes in India which contributes to 5.3 percent of the all India total, ranking 16 in criminality.
The Communal Pogrom 2002 No matter how hard one tries, one cannot find a closet to hide the skeletons of the aftermath of Godhra train carnage of 2002. Although Gujarat has seen a series of sectarian violence prior to this, the violence seen in 2002 was so barbaric and heinous, that it has set new stage for Indian party politics and the need to reify the ideals of secularism in India. The burning of S-6 and S-5 coaches of Sabarmati Express5, which cost 59 innocent lives, deserve nothing but condemnation; at the same time, this cannot in any which way justify the bestiality of the ensuing pogrom. The violence unleashed with the unambiguous support of the state machinery and the ruling party was not controlled even more than 60 days after it broke out6. One of the most disturbing facts about the train carnage was the Chief Minister of Gujarat, among others, to conclude that the train burning was the handiwork of Pakistan’s ISI, even before investigation into the incident had begun! Further outrageous was the Chief Minister’s statement that the violence subsequent to the Godhra incident was in keeping with Newton’s law of action and equal and opposite reaction. That the pogrom was well-planned was obvious from the manner in which the rioters were well equipped with gas cylinders, swords, petrol-bombs and mobile phones besides voters’ lists and sales tax details for identifying Muslim shops. The background work for all this anarchy was done systematically in advance. Many eyewitnesses also pointed out that the police officials led the marauding mobs and many places were set ablaze right under their noses. Another shocking incident was the burning alive of 39 persons along with Ehsan Jafri, an ex-MP of the Congress Party (who had campaigned against Modi
4. GSHRC Annual report 2009-10, Pg ii (foreword) 5. Sethi, Gagan, Nampoothiri, PGJ. “Lest We Forget History”. India: Books for Change International Publishing House, 2012:24-25 6. Engineer, A.A. “Gujarat Riots in the Light of the History of communal violence”.India. Economic and Political Weekly. December 2002:5047-5054
GUJARAT 117 in the by-election for the state assembly), in his bungalow in Ahmedabad city, despite desperately reach- ing out for help from the state police. Jafri ultimately met with a violent death along with 19 members of his family and 20 others in the Chamanpura colony. Even conscientious police officers who actively intervened in the situation were transferred from field duties. In Naroda Patia, more than 100 persons- all poor Muslims, were burnt alive in full view of the police force. Many Muslim girls and women from Naroda-Patia were raped before being burnt alive. In one case, a pregnant woman’s womb was ripped with a sword, the foetus extracted and burnt, before she met the same fate7.
Gujarat’s Internally Displaced Persons Janvikas’ recent survey based report8 on Gujarat’s internally displaced persons, manifests the large scale displacement that took place as a consequence of the 2002 riots. According to the report, the Gujarat carnage in 2002 displaced more than two lakh people in the first year. Out of these 16,087 continue to live in the 83 relief colonies built by Muslim charitable organisations and NGOs. The fact that such huge populations of Muslims do not dare to return to their actual homes even a decade after the riots brings to light the Gujarat government’s systemic neglect and the fear psychosis created among the victims. Many of these people, uprooted from their villages, now live in permanent compromise as second class citizens. Numerous cases were reported of Muslims being “allowed” to return only if they withdrew their legal cases, prevented the use of loudspeakers for Azaan (the Muslims religious prayer), and basically learned to live with downcast eyes. Some of the victims refused to withdraw the cases, while the others could not return even if they wanted to, because of the direct threat of violence.
Human Rights Violations by Security Forces According to the NCRB data for the year 2011, in Gujarat, 1,304 complaints were received against police personnel. Of them, 47 were sent for magisterial inquiry and 21 for judicial inquiry and a depart- mental inquiry was ordered into 480 of them. 222 police personnel were sent for trial in the year 2011, of whom two cases resulted in acquittal and none were convicted9. In the year 2011, seven cases of custodial deaths were reported of persons not remanded to police custody by court and one case of death where the person was remanded to police by court. The reasons cited for the same were either natural death, suicide or death during hospitalisation. The extra-judicial killing of Sohrabuddin Sheikh and his wife Kausar Bi, in the fake encounters, brought to the fore, the role of police in killing innocent people, in the name of countering terrorism. On March 23, 2007, the Gujarat Government admitted in the Supreme Court that the state police had killed Sohrabuddin Sheikh in a ‘false encounter’ in Ahmedabad in 2005, for wrongly accusing him of plotting to kill Chief Minister Narendra Modi. On April 24, 2007, three Indian Police Service officials- Inspector General of Police D.G Vanzara, Superintendent of Police Rajkumar Pandayan of the state intelligence wing of Gujarat and M.N Dinesh, Superintendent of Police of Alwar District of Rajasthan were arrested by Gujarat police, on charges of the murder of Sohrabuddin Sheikh. On April 30, 2007, the Gujarat Government also admitted before the Supreme Court of India, that Kausar Bi, wife of Sohrabuddin Sheikh, was also killed by the state police and her body was burnt10. The Ishrat Jahan encounter too was carried out allegedly by a team led by D.G. Vanzara in the year
7. Ibid 8. Gujarat’s Internally Displaced Persons: the 2012 survey of Gujarat’s IDP colonies. Janvikas, 2012:4 9. “Crimes in India-2011”. National Crimes Records Bureau, 2011 10. http://www.achrweb.org/reports/india/AR08/gujarat.html
118 SHRC: SOCIAL AUDIT REPORT–III 2004. The police alleged that Ishrat and her associates, Pranesh Pillai (alias Javed Gulam Sheikh), Am- jad Ali Rana and Zeeshan Johar were Lashkar-e-Taiba (LeT) operatives involved in a plot to assassinate the Chief Minister of Gujarat, Modi. After a long investigation, in 2009, the Ahmedabad Metropolitan Court ruled that the encounter was staged. The decision was challenged by the Gujarat State Govern- ment and taken to the high court. On July 3, 2013, the CBI filed its first charge-sheet in an Ahmedabad court stating that the shooting was a staged encounter, carried out in cold-blood.
Violence Against Women According to the NCRB data, there are 8,815 incidences of crime against women in Gujarat, a state with a population of approximately 603.8 lakhs according to the provisional statistics of the census of India-2011. The same data shows that Gujarat had 439 incidences of rape, 685 incidences of molesta- tion, 1,442 cases of abduction, 30 dowry deaths and 6,052 incidences of cruelty by husband/ his rela- tives. It also recorded 130 incidences of child rapes. The GSHRC’s Annual report of 2009-10 covers a section on women. Astoundingly and unfor- tunately, the GSHRC report states women as “life partners of men” who “because of lack of different physiological capabilities” get “victimised or exploited”11. This understanding of the GSHRC about women raises significant questions on how it perceives women, and under which paradigm. The under- lying assumption behind women lacking certain physiological capabilities is that men are advantaged with physical abilities that are not just different, but also superior to women12. The flawed perception that women’s “inferior” physique is the reason for their exploitation reiterates the patriarchal notion that women are responsible for their own woes and powerlessness. The statement ironically made by the Gujarat State Human Rights Commission, not only takes away the agency of women, but also blames their bodily configuration as the reason for their exploitation! Curiously, the GSHRC attributes objectification of women in India to the “feudalistic rulers of medieval period” alone and correlates it with the “Talibani fatwas of the neighbouring country”. During the year 2009-10, the GSHRC received 205 petitions about women; a majority of them were of abduction, rape and murder and exploitation13.
Farmer’s Suicides Both the central and state governments have paid little attention to the agrarian crisis leading to farmer suicides in the state of Gujarat. According to the data of Gujarat Government obtained by social activist Bharat Jhala under the Right to Information Act, as many as 489 farmers have committed suicide in the state since 2003. Junagadh district topped the list with 85 suicides, followed by Rajkot (62), Jamnagar (50) and Mehsana (48). The apathy of the state government was clear as instead of providing relief to the families of the farmers, it had tried to suppress information on their deaths. The figure could be higher as the state government failed to provide information on six districts. In its reply to an applica- tion filed under Right to Information (RTI) by Jhala, the state government had revealed that between January 1, 2008 and August 20, 2012, a total of 115 farmers had committed suicide in Gujarat. And most of them had ended their lives because of growing debts caused by crop failure, the RTI reply said. On March 29, 2007, the Gujarat government admitted in the State Assembly that at least 148 farmers had committed suicide in the state during January 2005- January 2007. Of these, 28 victims
11. GSHRC Annual report 2009-10, Pg 17 12. Menon, Nivedita. Seeing Like a Feminist. Penguin Group, 2012: 83 13. Ibid at 33, Pg 19
GUJARAT 119 were tribal farmers. The government did not pay any compensation to the families of the farmers who had committed suicide. However, according to Bharatiya Kisan Sangh (BKS), the farmers’ wing of the ruling Bharatiya Janata Party (BJP) stated that farmers’ suicides were either unreported or wrongly reported. According to BKS, around 300 farmers committed suicide in 2006 alone but the police have been refusing to register FIRs14. The farmers’ conditions failed to draw the attention of Central Government. The Parliamentary Standing Committee on Agriculture in its 23rd Report for 2006-07 presented to the 14th Lok Sabha on 20 March 2007 rightly pointed out that: “The Committee note that the Government has announced a package for 30 districts in 4 States namely Maharashtra, Karnataka, Kerala and Andhra Pradesh which will address the farmers’ credit, insurance, irrigation, subsidy and income needs through dairy, poultry and horticulture. The Committee are informed that the criteria for selection of the districts have been the severity of suicides and the State Governments have conducted some studies in this regard. The Committee opines that one of the main reasons for crop failures, which in turn compel farmers to commit suicides, is adverse climatic conditions and droughts in many parts of the country. Rajasthan, Gujarat and Orissa are mainly drought-affected States but why none of their districts is included in the list of 30 districts. In Punjab and other States also a number of farmers have committed sui- cide. The Committee wonders whether the Government is waiting for farmers of these States to commit suicide in large numbers before announcing any package for them. The Committee, therefore, recommend that while identifying the districts for suicide affected areas, ground realities should be taken into consideration and the rehabilitation package for these States should also be drawn in order to save the farmers and their families well before they commit suicide. The Committee further recommends that instead of severity of suicide by the farmers of a particular district of the State, their economic condition to repay the loans, crop failure, drought conditions and natural calamity should be the criteria for giving special package for their rehabilitation15” In the last five years, 135 debt-ridden farmers committed suicide in Gujarat because there was no help forthcoming from the state government. But the government refuses to accept that so many farm- ers killed themselves because they were unable to pay off debts caused by crop failure and fodder short- age. Instead, the government prefers to dismiss reports of farmer suicides as part of a larger ‘Congress Party Conspiracy’ against it16.
Violation of Rights of Dalits and Adivasis Gujarat has 1,063 incidences of crimes against dalits for the year 2011, according to the NCRB data and has the 11th rank in total cognisable crimes with respect to other states. The NCRB data records 12 cases of murder and 45 incidences of rape, 35 incidences of kidnapping and abduction and 279 cases of hurt against the Scheduled Castes (SCs). 192 of crimes against SCs were registered under the SC/ST Prevention of Atrocities Act, 1989. In Gujarat, the NCRB data shows 153 incidences of crime against adivasis (tribals) of which there are nine cases of murder, 20 incidences of rape, 42 cases of hurt and 16 incidences of kidnapping and abduction. Gujarat ranks 15th in its crime against the STs (Scheduled Tribes)17.
14. Ibid 10 15. Twenty Third Report of The Standing Committee on Agriculture (2006-07) submitted to Fourteenth Lok Sabha 16. http://www.dnaindia.com/ahmedabad/1815086/report-what-drove-135-gujarat-farmers-to-suicide 17. Crimes in India-2011, National Crimes Records Bureau
120 SHRC: SOCIAL AUDIT REPORT–III CONCLUSION
Since the establishment of the GSHRC, there have been a number of problems with respect to its complaints handling mechanism and effectiveness in preventing violations of human rights in the state and addressing those issues when brought to the notice of the commission. Besides its lackadaisical attitude to the range of gross violations of the rights of the people in Gujarat brought forth, a major factor impeding its independent functioning is its lack of complete financial autonomy. Secondly, the GSHRC does not exercise its powers to investigate a case independently. On too many occasions, the commission directs an organisation or authority to investigate and bring out a report with respect to the incident reported and based on the findings of the concerned authority (which in cases of custodial torture etc. happen to go back to the aggressors themselves for reporting on the issue), the commission concludes the matter as per its discretion and the “evidence” and “facts” as stated in the report. Such a reliance on state agencies and external authorities is based on the assumption that those from whom the report is demanded would be truthful and objective. This itself is a huge miscarriage of justice, because in many instances, especially those we witnessed during the tribunal are proof that state agencies col- lude with the perpetrators and in such cases, there is no scope for a truthful and objective account of incidents. Unless there is a radical change within the GSHRC in its structure and operations, victims will continue to suffer at the hands of the system while the aggressors go scot-free.
GUJARAT 121 the independent people’s tribunal jury panel social audit report Chapter-I Patterns of Violations and Functioning of Gshrc
124 SHRC: SOCIAL AUDIT REPORT–III introduction
n 1993, the Protection of Human Rights Act (PHRA, 1993), was promulgated in India. The Act provides for the establishment of National and State Human Rights Com- missions and endows these commissions with the powers to advance recommendations to the government, in order to address the grievances of victims of human rights violations. These commissionsI have been given adequate powers to recommend criminal investigations, disciplinary proceedings, and measures that state institutions might take in order to reduce the potential and rate of violations1.
The Paris Principles
The Paris Principles provide benchmarks against which proposed, new and existing National Human Rights Institutions can be assessed or ‘accredited’ by the Interna- tional Coordinating Committee’s Sub-committee on Accreditation2. Under the Paris Principles, NHRIs are required to: • Protect human rights, including by receiving, investigating and resolving complaints, mediating conflicts and monitoring activities and • Promote human rights through education, outreach, the media, publications, training, capacity building as well as advising and assisting governments. The Paris Principles set out what a fully functioning NHRI is and identifies six main criteria that these institutions should meet to be successful: • Mandate and competence
1. PHRA, 1993 2. http://www.asiapacificforum.net/members/international-standards
GUJARAT 125 • Autonomy from the government • Independence • Pluralism • Adequate resources • Adequate powers of investigation Based on the Paris Principles, the functioning of the Gujarat State Human Rights Commission has been analysed in the following section.
Gujarat State Human Rights Commission
he Gujarat State Human Rights Commission was constituted under the Government Home Department Notification No. GG/52/2006/HRC/1094/GOI-I (Part 2) IV Dated July 12, T20063. Prior to that, Human Rights Committee constituted in March 2002 was working inde- pendently. The headquarters of the commission is located at Sector-17 near Town Hall in Gandhinagar. The commission has the powers of a civil court and authority to intervene, award compensation for wide mandate and can monitor the implementation of its recommendations. The commission can initi- ate action suo-motu or on complaint by victim or any other person on his/her behalf for violation of human rights and abetment thereof. Negligence in prevention of such violation by a public servant can be looked into by the commission. The commission can also intervene in any proceedings involving any allegation of human rights pending before a court with the approval of such court4. According to the Gujarat State Human Rights Commission Regulations (Notification No. HRC/102006/Est., dated December, 22, 2006), the GSHRC shall hold its meetings and sittings in its office or at the camp office of the Chairperson located at Gandhinagar. However, it may in its discre- tion hold its meetings and sittings at any other place in Gujarat if it considers necessary and expedient5. The GSHRC should normally have its sittings in the first and third weeks of every month excepting holidays. However, the Chairperson may direct special sitting of the state commission to be convened to consider any matter of urgency. All complaints in whatever form received by GSHRC shall be registered, assigned a number and acknowledged within two weeks of receipt. Ordinarily the following complaints are not entertained by the state commissions6: • In regard to events which happened one year before the making of complaints • With regard to matters which are sub-judice • Which are vague, anonymous or pseudonymous • Those which are of frivolous nature
3. http://ghrc.guj.nic.in/Documents/Gshrc-About.htm 4. Section 12, PHRA, 1993 5. GSHRC Regulations 2006 6. Ibid at 5
126 SHRC: SOCIAL AUDIT REPORT–III • Those which are outside the purview of state commissions Regarding complaints made, every attempt should be made to disclose a complete picture of the matter leading to the complaints and the same may be made in Gujarati, English or Hindi to enable the GSHRC to take immediate action. The state commission shall however entertain complaints in any other language mentioned in the Eighth Schedule of the Constitution. It shall be open to the state commission to call for further information, and affidavit to be filed in support of allegations wherever considered necessary. The GSHRC may entertain complaints conveyed through e-mail or fax followed by confirmation by the complainant. The regulation also states that a complaint may be dismissed in limine if upon preliminary investigation or inquiry by police and inves- tigation staff under the control of the Additional Director General of Police has been made available to the GSHRC for efficient performance of its functions, which include investigation and inquiry into the complaints of the violation of human rights- where the allegations are unfounded, unsustainable or unwarranted or not cognisable by the state commission or the requisite action has already been taken or initiated by the concerned authority. Now, this power of the GSHRC has rendered actual justice to the petitioner/ victim to be at the mercy of the state agencies. In instances where the perpetrator is a state agent: a police, a public servant or the government itself, then clearly, based on the report of the police or the “concerned authority” which will have a very certain element of bias, the case are closed “in limine” based on such reports.
Human Rights Courts
The Protection of Human Rights Act, 1993, states in Section 30, that the state government in concur- rence with the Chief Justice of the High Court, specify for each district a court of session to be a Human Rights Court7. In the State of Gujarat, one Sessions Court in every district is notified as Human Rights Court as per the Government Resolution No. HRC/102007/169/D dated May 17, 2007 issued by the Legal Department, Government of Gujarat. The Gujarat High Court supervises the same courts and sends the information every half year to the State Human Rights Commission regarding the number of cases dealt with by the courts related to human rights violation8.
Powers
According to the Protection of Human Rights Act, 1993 (hereinafter referred to as PHRA, 1993), the commission can: a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf [or 1 on a direction or order of any court] , into complaint of (i) Violation of human rights or abetment thereof; or (ii) Negligence in the prevention of such violation, by a public servant; (b) Intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court; (c) Visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living condi-
7. Section 30, PHRA, 1993 8. Response to the application for information from the GSHRC, dated January 28, 2013
GUJARAT 127 tions of the inmates thereof and make recommendations thereon to the Government; (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective imple- mentation; (e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures9; (f) Study treaties and other international instruments on human rights and make recommenda- tions for their effective implementation; (g) Undertake and promote research in the field of human rights; (h) Spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; (i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights; (j) such other functions as it may consider necessary for the protection of human rights.
FUNCTIONING
Independence One of the important parameters for the independence of the state human rights commission is the independence of its investigation wing. Yet, every year a number of cases are entrusted to the police for inquiry. Some of these cases would be against the very police that are the accused in the complaints. In such a situation there is a clear conflict of interest. In the case of GSHRC, the commission itself admit- ted that even in the case of alleged police atrocities or custodial death, information is called for from the concerned head of the department/ office. They are directed to take necessary legal action and then send reports. Reports are called from DGP/ CP/ Range Head/ S.P. According to the data yielded in by HRLN from GSHRC, the following numbers of cases were referred to for police inquiry:
Year Cases entrusted for police inquiry 2006-2007 124 2007-2008 294 2008-2009 474 2009-2010 628 2010-2011 648 2011-2012 627 2012-2013 585 One can observe from the above table that over the past 6 years, the number of cases entrusted for police inquiry has multiplied almost five times from 2006-07 (124 cases) to 2012-13 (585 cases). Moreover, the composition of the commission should reflect its independence from the government or any influence or pressure from the state agencies. Yet the appointment procedure itself ensures that the commission is forever liable to the government. Moreover, the composition should ideally be pluralis-
9. Inserted by Act 43 of 2006 2 Sub. By Act 43 of 2006
128 SHRC: SOCIAL AUDIT REPORT–III tic, but unfortunately we saw no female staff or representatives from minority communities as part of the commission. The present Chairperson of the GSHRC is Justice J.N. Bhatt. Justice Bhatt was the Acting Chief Justice of the Gujarat High Court; he has also been the Chief Justice of Patna High Court from 2005-2007. Shri Sudhir Kumar Sinha is the member of GSHRC. He is an IPS who retired as the Commissioner of Police, Ahmedabad, on October 31, 2011 and joined as a member of GSHRC on November 22, 2011. Justice Sinha the former Chairperson of the Gujarat State Human Rights Commission in the An- nual Report 2009-10, declared that the “lack of complete composition of the state commission, on ac- count of vacancies in the office of the members, officers and other skilled as well as unskilled staff, calls for speedy remedial measures. The need for recognising and granting complete financial autonomy to the state commission as contemplated and stipulated in Section 33 (2) of the Act, which is absolutely necessary for gearing up the machinery to deal with human rights issues appropriately and efficaciously, warrants serious and prompt attention”.
Awareness About the Commission The State Human Rights Commission has a statutory responsibility (Section 12-h of PHRA, 1993) to spread human rights literacy among various sections of society and promote awareness about the safeguards available for the protection of these rights through publications, the media, seminars and other available means. During the Independent People’s Tribunal on the functioning of Gujarat State Human Rights Commission, civil society organisations revealed that there was no awareness about the GSHRC’s existence, and those which knew about its existence stated outright about its ineffective ac- tions and lackadaisical orders. The very fact that even civil society organisations, let alone victims, are unaware of the existence of the very commission reflects the commission’s lack of commitment to this requirement as per the PHRA, 1993.
Accessibility Moreover, the website of the commission is not updated. It has uploaded annual reports of 2006-07, 2007-08 and 2009-10 only. The other annual reports are yet to be uploaded on its website. Section 12 states in detail the powers and functions of the commission, yet no information is available on how it is being implemented and how the powers is being used with respect to the cases received by the com- mission. Nor is there an online portal to check the status of a complaint filed. Physical Accessibility The commission is located near Town Hall in Gandhinagar with easy access to public transport. Yet it is not easily accessible for people living in rural areas. Although the complainant can file their petitions by post or fax, their presence is required during the trial. It is during this time that complainants find it difficult to reach the location.
Activities with NGOs Statutorily, every human rights commission should establish and maintain close contact with non- governmental organisations and in fact, such collaboration would only help the commissions to en- hance their visibility and inform general public of their existence. Yet, the GSHRC does not actively participate in activities by the NGO sector or involve them in the commission’s work. Such an isolated method of functioning has rendered the GSHRC invisible for both, the civil society and victims of human rights violations. Trupti Shah as an expert speaker representing a woman’s organisation named
GUJARAT 129 Sahiyar, stated during the Independent People’s Tribunal on the GSHRC that as an organisation, they were not even aware of the existence of the state human rights commission. This not only brings to light the fact that the commission has not made any efforts to make itself accessible to the general public, but also that it is not seen as a potential justice delivery body where people would put their faith in. In addition, although the commission was notified about the IPT that was held on 17th March, 2013, none of the members attended the meeting. This reflects its apathetic attitude towards participa- tion in activities by civil society organisations, where the IPT could have been a good platform for a healthy discussion on the reasons for delay, dismissal of cases, solutions to the problems faced by the complainants, to make the commission more effective.
Operational Efficiency According to the UN Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, “Certain fundamental requirements (e.g. staff and premises) must be fulfilled before it can even begin operating. Sufficient human resources and adequate continuing funding are therefore pre- requisite for opera- tional efficiency”. Dr. L. Mishra IAS (retd.), Special Rapporteur of the NHRC, has given GSHRC the following tips to operationalise the guidelines contained in the Human Rights Manual for District Magistrates: • Correct understanding of the provisions of the Constitution • Proactive, positive and sensitive district administration should adopt the interpretations that go in favor of the targeted group. • Timely implementation is essential for any legislation and it can be done by acknowledging the existence of the problem, effective dealing and steps to prevent its recurrence. • Cognisance can be taken from credible source of information such as newspapers, PILs. • Officers of proven trust, ability and social conscience can be delegated powers when they are indisposed. • Take a fair and judicious view of the reports received. • All complaints/grievances received to be redressed in the shortest possible time. • Computerised documentation of the success stories is extremely important. • Appreciate fast track efficient officials, penalise slow and sloppy ones. • Good, reliable and committed NGOs to be promoted, encouraged, fully supported and in- volved. As per the GSHRC’s Annual Report of 2009-10, the GSHRC states that most of the petitions re- ceived by them pertained to police, domestic violence, discrimination against SC/STs, service disputes, women and their rights violations, children, mafias, underworld criminals, women and private property rights10. Data retrieved in the application by HRLN and as shown in Table 1, reveals that the pendency rate in GSHRC has gone up significantly after 2011. Clearly, the commission is struggling to deal with the number of complaints it receives every year. Furthermore, the data regarding cases “disposed of ” has to be rethought. During the depositions at the IPT on the functioning of GSHRC, many cases that were presented were either dismissed in limine by the GSHRC because it was sub judice or even in cases order were issued it was not even verified by the commission whether or not it was complied with. The
10. GSHRC Annual report 2009-10, Pg ii (foreword)
130 SHRC: SOCIAL AUDIT REPORT–III GSHRC however states otherwise; it states that when an applicant files a petition or complaint with the SHRC, the commission does not close the case without scrutinising primary information, maintain- ability and jurisdiction. Complaints received in the commission, are duly and properly processed and submitted to the concerned judicial authority for final decision, as the GSHRC states in its response letter. Moreover, the GSHRC upholds that they have not heard from any applicant or complainant that the orders passed by them have not been complied with. According to the GSHRC, all the orders passed by them are understood and implemented without any further litigation from the government.
Table 111 Year Received Disposed Pending 2006-07 592 591 1 2007-08 1402 1400 2 2008-09 2260 2255 5 2009-10 2992 2971 21 2010-11 3086 3034 52 2011-12 2989 2899 90 2012-13 2789 2263 526 TOTAL 16110 15413 697
Moreover, according to the RTI response, 339 cases were transferred by the NHRC to GSHRC from 2006- 2013, and out of them only 244 were disposed of. In the last two years, the details of cases taken by the commission suo motu are given below:
Table 212
Year Total Disposed Of Pending 2011 10 7 3 2012 39 17 22 Sum total 49 24 25
From Table 2, we can infer that firstly, the pendency related to suo motu cases has increased over the last two years. The GSHRC has disposed of less than half the cases it took up suo motu in the year 2012. As per the information retrieved through RTI, it is stated by the GSHRC that in the year 2012, the compensation orders were issued only in two cases, the execution of which was still pending. From Table 3.1 & Table 3.2, we can infer that a majority of cases that are filed at GSHRC come from Ahmedabad (679 in the year 2012-13), Gandhinagar (161 in the year 2012-13), Surat (144 in the year 2012-13) and Bhavnagar. Since 2009-10, cases from Banaskantha (119 in the year 2012-13), Sabarkantha (85 in the year 2012-13), Jamnagar (123 in the year 2012-13) and Junagarh (104 in the year 2012-13) have also been rising rapidly. It is to be noted that except for Surat, Jamnagar and Jun- garh, the districts from where the majority cases come from are geographically closer to the location of the GSHRC. The pendency of cases is proportionately higher for these districts.
11. Response by GSHRC to the application for information filed by HRLN 12. Ibid at 9
GUJARAT 131 able 3.1 T
132 SHRC: SOCIAL AUDIT REPORT–III able 3.2 T
GUJARAT 133 Districts like Dwarka (4 cases in the year 2012-13), Narmada (22 cases in the year 2012-13), Tapi (24 cases in the year 2012-13), Porbandar (18 cases in the year 2012-13), Navsari (28 cases in the year 2012-13) and Surat Rural (33 cases in the year 2012-13) have statistically filed very few cases at the GSHRC. The pendency is proportionately lower for these districts. Very few cases from the peripheral districts of Gujarat are filed at the GSHRC. The GSHRC has practical constraints in dealing with the cases, especially with respect to investiga- tion, as there are overlapping jurisdictions13 of different field machineries creating confusion for a lay- man. The GSHRC recommends that there should be well-defined boundaries at the government level to regulate jurisdictions of all field functionaries to bring down administrative cost and burden for the common man.
Patterns of Human Rights Violations in Gujarat
ujarat is a border state located in the north-west coast of India. The state is known for its mercantile ethos which has its premises in its history and geography. Gujarat’s strategic loca- tion within Asia and its ports along the northern centre of the Indian Ocean placed at the G 14 intersection of a number of trading systems and proved propitious to Gujarati merchants . For almost a thousand years, merchant communities- Hindus, Jains, Muslims and later Parsis- not only dominated the economic sphere, but also wielded influence in Gujarati society and power in political affairs. One quarter of India’s coastline is in Gujarat and the string of harbours and ports from Sind to Konkan served a vast hinterland. Maritime trade in Gujarat dates back to the Indus Valley Civilization. This ethos has now become a façade with the present government claims of Gujarat as a developed state because of a high growth rate. But the fact is that Gujarat’s growth rate is 9.5 percent and the national average is 8.03 percent15. Gujarat’s per capita income has been estimated at Rs. 89,668 in 2011-12 as against 78, 802 in 2010-11. Gujarat’s infant mortality rate is 44, neo-natal mortality rate is 31 and under-5 mortality rate is 56, according to the Sample Registration System data of 2010. Its maternal mortality rate is 148. Literacy rate in Gujarat is 79.3 percent; 87.2 percent for males and 70.7 percent for females16. Hence, on the parameters of Human Development Index, the state has not substantiated the said success, vibrancy or development that it has been continually harping on solely based on the growth rate and employment generation. According to the information yielded in the RTI filed by the activists Rohit Prajapati and Trupti Shah17, the so called ‘employment’ ranged from apprenticeship to temporary private sector jobs
13. GSHRC Annual report 2009-10, Pg 8 14. Yagnik, Achyut. The Shaping of Modern Gujarat: Plurality, Hindutva and beyond. Penguin Books India, 2005: 15. http://articles.economictimes.indiatimes.com/2013-10-22/news/43288839_1_delhi-bjp-gujarat-growth-rate 16. http://www.censusindia.gov.in/2011-prov-results/paper2/data_files/Gujrat/5-fig-guj9.pdf 17. Shah, Trupti and Prajapati, Rohit. Laboratory of Fascism: Capital, labour and environment in Modi’s Gujarat. 2013 http://www.radicalsocialist.in/articles/national-situation/579-laboratory-of-fascism-capital-labour-and-
134 SHRC: SOCIAL AUDIT REPORT–III with very few skilled workers. Gujarat has a population of 60,383,628 (60 million), according to the 2011 Census18, but, the census of 2011 is (politically) silent on data regarding the religious composition of the population, despite information regarding the same being collected in the Household Schedule of the Census19. It is a known fact that census has been used by communal forces to map Hindu communities20, to count them and compare them with other religious communities, particularly the Muslim. The 1970s and 1980s saw major conflicts in Gujarat due to the reservations for the backward castes. The 1985 riots in Ahmedabad erupted over Gujarat government’s decision to increase the quo- tas reserved for backward castes in educational institutions and government jobs. The conflict between the forward and backward castes turned into a communal conflict between Hindus and Muslims21. This occurred despite the fact that Muslims had no role to play in the reservation dispute, there was no prior religious dispute between the two communities, and religion was anyways not the category qualifying one for reservations. From the 1980s the ideas of a ‘unitary’ Hindu identity began to gain support in Ahmedabad, in the backdrop of intensifying conflicts among the Hindus. The collusion of the state agencies in engineering and executing large scale violence against Muslims in the year 2002, as a retributive justice in response to the Sabarmati Express train carnage, has thus put forth a new stage for Indian electoral politics. “It is not surprising therefore, that a new barometer for measuring whether a State is genuinely interested in furthering Human Rights, is whether it establishes and then cooperates with a National Institution” –The NHRC Chairperson Justice Verma’s22 opening address at the 7th Annual meeting of the Asia Pacific Forum of National Human Rights Institutions, November 11, 2004. According to the National Crimes Records Bureau Report “Crimes in India-2011” issued by the Ministry of Home Affairs, Government of India, Gujarat has 123371 cases registered as total cognisable crimes in India which contributes to 5.3 percent of the all India total, ranking 16 in criminality.
The Communal Pogrom 2002
No matter how hard one tries, one cannot find a closet to hide the skeletons of the aftermath of Godhra train carnage of 2002. Although Gujarat has seen a series of sectarian violence prior to this, the violence seen in 2002 was so barbaric and heinous, that it has set new stage for Indian party politics and the need to reify the ideals of secularism in India. “Gujarat 2002 is like Hamlet’s ghost which lurks in the mundane of daily living. It is the blood spot on Lady Macbeth’s palm which ‘all the perfumes of Arabia cannot erase or wish away’.” –Syeda Hameed23
environment-in-modi-s-gujarat 18. http://www.censusindia.gov.in/2011-prov-results/PPT_2.html 19. http://www.niticentral.com/2013/05/03/why-is-census-2011-silent-on-religious-data-73065.html 20. http://www.epw.in/system/files/pdf/2004_39/39/Censuses_Communalism_Gender_and_Identity.pdf 21. Shani, Ornit .Communalism, Caste and Hindu Nationalism: The violence in Gujarat. Cambridge University Press, 2007: 52 22. Sethi, Gagan and Nampoothiri, PGJ. Lest we forget history: Tracing Communal Violence in Gujarat 2002. Books for Change, 2012:121 23. Hameed’s foreword in Sethi, Gagan, Nampoothiri, PGJ. “Lest We Forget History”. India: Books for Change International Publishing House, 2012.
GUJARAT 135 The burning of S-6 and S-5 coaches of Sabarmati Express24, which cost 59 innocent lives, deserve nothing but condemnation; at the same time, this cannot in any which way justify the bestiality of the ensuing pogrom. The violence unleashed with the unambiguous support of the state machinery and the ruling party was not controlled even more than 60 days after it broke out25. One of the most disturbing facts about the train carnage was the Chief Minister of Gujarat, among others, to conclude that the train burning was the handiwork of Pakistan’s ISI, even before investigation into the incident had begun! Further outrageous was the Chief Minister’s statement that the violence subsequent to the Godhra incident was in keeping with Newton’s law of action and equal and opposite reaction. That the pogrom was well-planned was obvious from the manner in which the rioters were well equipped with gas cylinders, swords, petrol-bombs and mobile phones besides voters’ lists and sales tax details for identifying Muslim shops. The background work for all this anarchy was done systematically in advance. Many eyewitnesses also pointed out that the police officials led the marauding mobs and many places were set ablaze right under their noses. Another shocking incident was the burning alive of 39 persons along with Ehsan Jafri, an ex-MP of the Congress Party (who had campaigned against Modi in the by-election for the state assembly), in his bungalow in Ahmedabad city, despite desperately reaching out for help from the state police. Jafri ultimately met with a violent death along with 19 members of his family and 20 others in the Chaman- pura colony. Even conscientious police officers who actively intervened in the situation were transferred from field duties. In Naroda Patia, more than 100 persons- all poor Muslims, were burnt alive in full view of the police force. Many Muslim girls and women from Naroda-Patia were raped before being burnt alive. In one case, a pregnant woman’s womb was ripped with a sword, the foetus extracted and burnt, before she met the same fate26. Even British Nationals were not spared when they showed their passports to save themselves; in- stead, they were deliberately killed because they were Muslims. Gujarat was communally quite sensitive even before the BJP came to power and much more so once the Sangh Parivar began intensive communalisation of ‘Gujarati’ society. The scandals during the earthquake in Bhuj, the collapse of the buildings constructed by contractors close to BJP ministers and their relatives, had further exposed the BJP’s tall claims of being a ‘party with a difference’ and a non- corrupt party. The elections were due in Gujarat in March 2003 and there were clear prospects of the BJP losing the elections and the only trick up its sleeve was polarisation of Hindus and Muslims and all this was orchestrated to consolidate the Hindutva forces by organising communal riots27. In June 2007, a Supreme Court-appointed committee headed by N.C. Saxena found that 4,545 Muslim families comprising around 30,000 persons who were displaced by the post-Godhra communal riots were still living in miserable conditions in 81 relief colonies in Gujarat28. They faced acute scarcity of food and security. None of the 81 relief colonies were set up or assisted by the state government. Only five of the 81 colonies had government or government recognised schools, and only four served mid-day meals to children. Only three colonies had faire price shops, and only 725 out of the 4,545
24. Sethi, Gagan, Nampoothiri, PGJ. “Lest We Forget History”. India: Books for Change International Publishing House, 2012:24-25 25. Engineer, A.A. “Gujarat Riots in the Light of the History of communal violence”.India. Economic and Political Weekly. December 2002:5047-5054 26. Ibid 27. Ibid 28. http://www.achrweb.org/reports/india/AR08/gujarat.html
136 SHRC: SOCIAL AUDIT REPORT–III families were recognised as below poverty line29. In June 2002, Chief Minister Narendra Modi, dissolved the Legislative Assembly ahead of time and called for early elections. Held in December, the BJP registered a stunning victory, securing two- thirds majority. The Congress dominated seats of the north and central Gujarat were also captured by the BJP, thereby proving that the Hindutva-led mobilisation had succeeded. The BJP also won in the neighbouring states of Rajasthan and Madhya Pradesh, thereby signaling that Hindutva was an election-winning formula30. Thus, the brazen complicity of the state in organising and implementing the much targeted violence against Muslims in Gujarat was obvious.
Gujarat’s Internally Displaced Persons
According to the UN guiding principles on Internal Displacement, “Internally Displaced Persons (IDPs) are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the ef- fects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internally recognized state border” Janvikas’ recent survey based report31 on Gujarat’s internally displaced persons, manifests the large scale displacement that took place as a consequence of the 2002 riots. According to the report, the Gujarat carnage in 2002 displaced more than two lakh people in the first year. Out of these 16,087 continue to live in the 83 relief colonies built by Muslim charitable organisations and NGOs. The fact that such huge populations of Muslims do not dare to return to their actual homes even a decade after the riots brings to light the Gujarat government’s systemic neglect and the fear psychosis created among the victims. Many of these people, uprooted from their villages, now live in permanent compromise as second class citizens. Numerous cases were reported of Muslims being “allowed” to return only if they withdrew their legal cases, prevented the use of loudspeakers for Azaan (the Muslims religious prayer), and basically learned to live with downcast eyes. Some of the victims refused to withdraw the cases, while the others could not return even if they wanted to, because of the direct threat of violence.
Human Rights Violations by Security Forces
According to the NCRB data for the year 2011, in Gujarat, 1,304 complaints were received against police personnel. Of them, 47 were sent for magisterial inquiry and 21 for judicial inquiry and a depart- mental inquiry was ordered into 480 of them. 222 police personnel were sent for trial in the year 2011, of whom two cases resulted in acquittal and none were convicted32. In the year 2011, seven cases of custodial deaths were reported of persons not remanded to police custody by court and one case of death where the person was remanded to police by court. The reasons cited for the same were either natural death, suicide or death during hospitalisation. The extra-judicial killing of Sohrabuddin Sheikh and his wife Kausar Bi, in the fake encounters, brought to the fore, the role of police in killing innocent people, in the name of countering terrorism. On March 23, 2007, the Gujarat Government admitted in the Supreme Court that the state police had
29. The Hindu, June 5, 2007 30. Yagnik, Achyut and Sheth, Suchitra. The Shaping of Modern Gujarat. India:Penguin India, 2005:284 31. Gujarat’s Internally Displaced Persons: the 2012 survey of Gujarat’s IDP colonies. Janvikas, 2012:4 32. “Crimes in India-2011”. National Crimes Records Bureau, 2011
GUJARAT 137 killed Sohrabuddin Sheikh in a ‘false encounter’ in Ahmedabad in 2005, for wrongly accusing him of plotting to kill Chief Minister Narendra Modi. On April 24, 2007, three Indian Police Service officials- Inspector General of Police D.G Vanzara, Superintendent of Police Rajkumar Pandayan of the state intelligence wing of Gujarat and M.N Dinesh, Superintendent of Police of Alwar District of Rajasthan were arrested by Gujarat police, on charges of the murder of Sohrabuddin Sheikh. On April 30, 2007, the Gujarat Government also admitted before the Supreme Court of India, that Kausar Bi, wife of Sohrabuddin Sheikh, was also killed by the state police and her body was burnt33. The Ishrat Jahan encounter too was carried out allegedly by a team led by D.G. Vanzara in the year 2004. The police alleged that Ishrat and her associates, Pranesh Pillai (alias Javed Gulam Sheikh), Am- jad Ali Rana and Zeeshan Johar were Lashkar-e-Taiba (LeT) operatives involved in a plot to assassinate the Chief Minister of Gujarat, Modi. After a long investigation, in 2009, the Ahmedabad Metropolitan Court ruled that the encounter was staged. The decision was challenged by the Gujarat State Govern- ment and taken to the high court. On July 3, 2013, the CBI filed its first charge-sheet in an Ahmedabad court stating that the shooting was a staged encounter, carried out in cold-blood. The GSHRC received 394 cases against police in the year 2007-08, 602 cases in the year 2008-09 and 910 cases in the year 2009-1034.
SN Subject 2006-07 2007-08 2008-09 2009-10 1 Arbitrary use of power 24 40 37 68 2 Abduction and kidnapping 2 4 3 0 3 Abduction and rape 0 0 1 0 4 Abuse of power 35 51 119 183 5 Attempt to murder 0 1 1 0 6 Atrocity on SC/ST 3 5 3 6 7 Death in police custody 1 1 4 3 8 Custodial torture 0 2 6 2 9 Custodial violence 1 1 4 1 10 Death in police encounters 0 1 0 0 11 Failure in taking lawful action 69 233 266 411 12 False implications 13 23 58 96 13 Illegal arrest 1 0 8 14 14 Unlawful detention 4 1 12 14 15 Undue arrest 2 5 4 1 16 Police motivated incidents 2 6 14 10 17 Prolonged trial 3 11 58 91 18 Victimisation 3 9 4 10 TOTAL 163 394 602 910
The GSHRC states that of the 48 cases of custodial deaths it received during the year 2009-10, several were transferred to the GSHRC by the NHRC and out of 48 cases, 44 were reported as “natural
33. http://www.achrweb.org/reports/india/AR08/gujarat.html 34. GSHRC Annual Report 2009-10, Pg 26-27
138 SHRC: SOCIAL AUDIT REPORT–III deaths” due to illness etc. one case of suicide, one case due to collapse of jail wall and two cases of death due to police atrocity.
Violence against women
“The mob killed my mother Abida Bibi. They flung my seven-year old niece Gulnaz Bano into the fire. She died. My sister Saeeda died of burns at the hospital the next day. I was attacked by swords and lost my 11-month- old daughter while trying to flee. I found her at the Shah Alam camp two months later35,” –Naimuddin (victim of the Gujarat Riots 2002) Naimuddin’s wife was gang-raped and her left arm was chopped off by the mob, during the riots. The Gujarat pogrom was an example of how women were assaulted and raped to get even with and intimidate a religious community at large, by attempting to symbolically attack the Izzat (honour) of the Muslims. According to the NCRB data, there are 8,815 incidences of crime against women in Gujarat, a state with a population of approximately 603.8 lakhs according to the provisional statistics of the census of India-2011. The same data shows that Gujarat had 439 incidences of rape, 685 incidences of molesta- tion, 1,442 cases of abduction, 30 dowry deaths and 6,052 incidences of cruelty by husband/ his rela- tives. It also recorded 130 incidences of child rapes. The GSHRC’s Annual report of 2009-10 covers a section on women. Astoundingly and unfor- tunately, the GSHRC report states women as “life partners of men” who “because of lack of different physiological capabilities” get “victimised or exploited”36. This understanding of the GSHRC about women raises significant questions on how it perceives women, and under which paradigm. The under- lying assumption behind women lacking certain physiological capabilities is that men are advantaged with physical abilities that are not just different, but also superior to women37. The flawed perception that women’s “inferior” physique is the reason for their exploitation reiterates the patriarchal notion that women are responsible for their own woes and powerlessness. The statement ironically made by the Gujarat State Human Rights Commission, not only takes away the agency of women, but also blames their bodily configuration as the reason for their exploitation! Curiously, the GSHRC attributes objectification of women in India to the “feudalistic rulers of medieval period” alone and correlates it with the “Talibani fatwas of the neighbouring country”. During the year 2009-10, the GSHRC received 205 petitions about women; a majority of them were of abduction, rape and murder and exploitation38.
Farmer’s Suicides
Both the central and state governments have paid little attention to the agrarian crisis leading to farmer suicides in the state of Gujarat. According to the data of Gujarat Government obtained by social activist Bharat Jhala under the Right to Information Act, as many as 489 farmers have committed suicide in the state since 2003. Junagadh district topped the list with 85 suicides, followed by Rajkot (62), Jamnagar (50) and Mehsana (48). The apathy of the state government was clear as instead of providing relief to
35. http://www.thehindu.com/opinion/op-ed/a-partial-sense-of-closure/article3863086.ece 36. GSHRC Annual report 2009-10, Pg 17 37. Menon, Nivedita. Seeing Like a Feminist. Penguin Group, 2012: 83 38. Ibid at 33, Pg 19
GUJARAT 139 the families of the farmers, it had tried to suppress information on their deaths. The figure could be higher as the state government failed to provide information on six districts. In its reply to an applica- tion filed under Right to Information (RTI) by Jhala, the state government had revealed that between January 1, 2008 and August 20, 2012, a total of 115 farmers had committed suicide in Gujarat. And most of them had ended their lives because of growing debts caused by crop failure, the RTI reply said. On March 29, 2007, the Gujarat government admitted in the State Assembly that at least 148 farmers had committed suicide in the state during January 2005- January 2007. Of these, 28 victims were tribal farmers. The government did not pay any compensation to the families of the farmers who had committed suicide. However, according to Bharatiya Kisan Sangh (BKS), the farmers’ wing of the ruling Bharatiya Janata Party (BJP) stated that farmers’ suicides were either unreported or wrongly reported. According to BKS, around 300 farmers committed suicide in 2006 alone but the police have been refusing to register FIRs39. The farmers’ conditions failed to draw the attention of Central Government. The Parliamentary Standing Committee on Agriculture in its 23rd Report for 2006-07 presented to the 14th Lok Sabha on March 20, 2007 rightly pointed out that: “The Committee note that the Government has announced a package for 30 districts in 4 States namely Maharashtra, Karnataka, Kerala and Andhra Pradesh which will address the farmers’ credit, insurance, irrigation, subsidy and income needs through dairy, poultry and horticulture. The Committee are informed that the criteria for selection of the districts have been the severity of suicides and the State Governments have conducted some studies in this regard. The Committee opines that one of the main reasons for crop failures, which in turn compel farmers to commit suicides, is adverse climatic conditions and droughts in many parts of the country. Rajasthan, Gujarat and Orissa are mainly drought-affected States but why none of their districts is included in the list of 30 districts. In Punjab and other States also a number of farmers have committed sui- cide. The Committee wonders whether the Government is waiting for farmers of these States to commit suicide in large numbers before announcing any package for them. The Committee, therefore, recommend that while identifying the districts for suicide affected areas, ground realities should be taken into consideration and the rehabilitation package for these States should also be drawn in order to save the farmers and their families well before they commit suicide. The Committee further recommends that instead of severity of suicide by the farmers of a particular district of the State, their economic condition to repay the loans, crop failure, drought conditions and natural calamity should be the criteria for giving special package for their rehabilitation40” In the last five years, 135 debt-ridden farmers committed suicide in Gujarat because there was no help forthcoming from the state government. But the government refuses to accept that so many farm- ers killed themselves because they were unable to pay off debts caused by crop failure and fodder short- age. Instead, the government prefers to dismiss reports of farmer suicides as part of a larger ‘Congress Party Conspiracy’ against it41.
Violation of Rights of Dalits and Adivasis
Gujarat has 1,063 incidences of crimes against dalits for the year 2011, according to the NCRB data and has the 11th rank in total cognisable crimes with respect to other states. The NCRB data records 12
39. Ibid 10 40. Twenty Third Report of The Standing Committee on Agriculture (2006-07) submitted to Fourteenth Lok Sabha 41. http://www.dnaindia.com/ahmedabad/1815086/report-what-drove-135-gujarat-farmers-to-suicide
140 SHRC: SOCIAL AUDIT REPORT–III cases of murder and 45 incidences of rape, 35 incidences of kidnapping and abduction and 279 cases of hurt against the Scheduled Castes (SCs). 192 of crimes against SCs were registered under the SC/ST Prevention of Atrocities Act, 1989. In Gujarat, the NCRB data shows 153 incidences of crime against adivasis (tribals) of which there are 9 cases of murder, 20 incidences of rape, 42 cases of hurt and 16 incidences of kidnapping and ab- duction. Gujarat ranks fifteenth in its crime against the STs (Scheduled Tribes)42. In March 2007, Chief Minister Narendra Modi launched an all-inclusive Vanbandhu Kalyan Yojana, a Rs 15,000 crore scheme for the welfare of 75 lakh tribal people of the state43. Among the promises were providing houses to all homeless tribal families, safe drinking water and tap water at the door- steps to at least a quarter of tribals in the five years of the next Five-Year plan. A village development action plan would be chalked out for each tribal village. It would envisage job-oriented programmes in agriculture, animal husbandry and dairying, quality education and accord priority to families headed by women. Under the scheme, which incorporates all existing tribal sub-plans, steps would be taken to accelerate development of all predominantly tribal areas, having a third of the 182-strong Assembly memberships, and provide amenities to tribal families for safe motherhood and healthy children. Group and drip irrigation, watershed development schemes would be given priority and financial assistance would be given to poor farming families for buying oil engines. Besides, Mr Modi said, tribal habita- tions having up to 250 population would all be linked with better roads, houses of tribals living below the poverty lines would be electrified free of cost and use of solar energy would be encouraged in other areas. However, basic facilities such as medical continued to elude the tribals. In July 2007, a tribal woman was forced to give birth in the open after she was denied health care as the Government-run Community Health Centre was locked while a trust-run private hospital, specially designated to treat pregnant women who belong to the Below Poverty Line families under the Government’s much hyped Chiranjivi scheme, refused to admit her at Nakhatrana Town in Kutch District. Earlier in March 2007, Chief Minister Narendra Modi had made a fervent appeal to poor expectant mothers “to drop a post- card to him in case they had any problem” at a Mahila Sammelan in Kutch District. On October 2, 2007, Chief Minister Narendra Modi handed over land ownership rights to 30 tribals and declared that such land titles would be given to another 2,204 tribals in the state. The Gov- ernment of Gujarat did not obtain the approval of the central government ruled by rival Congress-led United Progressive Alliance under the 1980 Forest Act. Mr Modi’s pro-tribal actions were seen as an attempt to woo the tribals ahead of the assembly elections which was held in December 2007 in which the BJP secured near two-third majority. On October 5, 2007, the Supreme Court of India restrained the Gujarat Government from issuing new land titles to tribals. A “Forest Bench” of the Apex Court comprising Chief Justice K.G. Balakrishnan and Justice Arijit Pasayat and Justice S.H. Kapadia passed the order after amicus curiae Harish Salve filed an application that ownership rights over forest land were handed over to 30 tribals by Chief Minister Narendra Modi on October 2, 2007. The SC Bench issued notice to the Gujarat Government seeking its response to the application. Ironically, the state government failed to check alienation of tribal lands. According to the 2007-08 Annual Report of the Ministry of Rural Development, Government of India, a total of 20,704 cases alleging alienation of 75,966 acres of land have been filed in the court in Gujarat. 19,819 cases have been disposed of by the court, of which 19,322 cases have been disposed of in favour of tribals but it was only in 376 cases
42. Crimes in India-2011, National Crimes Records Bureau 43. http://www.thehindubusinessline.in/bline/2007/03/27/stories/2007032702881100.htm
GUJARAT 141 (involving 1942 acres of land) in which alienated land was restored to tribals. 885 cases were pending in the court44. CONCLUSION
Since the establishment of the GSHRC, there have been a number of problems with respect to its complaints handling mechanism and effectiveness in preventing violations of human rights in the state and addressing those issues when brought to the notice of the commission. Besides its lackadaisical attitude to the range of gross violations of the rights of the people in Gujarat brought forth, a major factor impeding its independent functioning is its lack of complete financial autonomy. Secondly, the GSHRC does not exercise its powers to investigate a case independently. On too many occasions, the commission directs an organisation or authority to investigate and bring out a report with respect to the incident reported and based on the findings of the concerned authority (which in cases of custodial torture etc. happen to go back to the aggressors themselves for reporting on the issue), the commission concludes the matter as per its discretion and the “evidence” and “facts” as stated in the report. Such a reliance on state agencies and external authorities is based on the assumption that those from whom the report is demanded would be truthful and objective. This itself is a huge miscarriage of justice, because in many instances, especially those we witnessed during the tribunal are proof that state agencies col- lude with the perpetrators and in such cases, there is no scope for a truthful and objective account of incidents. Unless there is a radical change within the GSHRC in its structure and operations, victims will continue to suffer at the hands of the system while the aggressors go scot-free.
44. Ibid 10
142 SHRC: SOCIAL AUDIT REPORT–III
Chapter-II Testimonies
144 SHRC: SOCIAL AUDIT REPORT–III Police Brutality on Muslim Women Godhra District Soheb Husain Jumaji deposing the case
Salma, Naseembanu, Haksabibi, Fareeda, Ruksanabibi, Saraben, Rahimabibi, Saberabibi
e, the undersigned, submit that on December 19, 2009 at around 10 pm, the local police came to Geni plot to nab certain accused (Rafiq Hussain, Waccused in the offence of slaughtering animals) and caught hold of him, but due to police carelessness, he fled. This made the police go beserk and with a mala fide intention, the male police staff of Godhra town B division, targeted the residents of Hathila plot in the same night at about 1:15 am (after midnight), made forcible entries and tresspassed into a number of Muslim houses and started looting gold and silver ornaments and hard cash of the house inmates. They did not stop at looting, but also went for us, the women of the house, molested us and dragged us out of our homes through physical force and verbal abuses. They brutally hit us at our private parts using lathis, and groped our breasts when we tried to resist. One of us, was a woman who was in her post natal stage and had an 18 day old baby. The police showed no mercy and beat her up too, and tossed her baby girl to the ground after picking it casually from the swing she lay in. Moreover, one of us women was observing Iddat after her husband’s death and even she was subjected to physical molestation. In the home of a Muslim cleric, they made forcible entry by breaking the door, and started rampaging. When the women of the house protested against this, they pushed the cleric’s wife and made indecent gestures at the other women and forcibly took them away in a police van. After forcibly taking us womenfolk from our homes, the police dumped eight of us in the police van and in there too, they teasted us making indecent gestures and used perverse verbal language. The kingpin of these were the P.I, P.S.I (Shri A.V. Parmar), Constable Suresh, constable Prabath Singh, Constable Parvat Singh from the ‘B’ divi- sion among many others. The police booked complaints against Salma (19), Naseembanu (22), Haksabibi (27), Fareeda (28), Ruksanabibi (30), Saraben (35), Rahimabibi (39) and Saberabibi (40) under sections 224, 225, 332, 333, 353, 506(2), 186, 147, 148 and 149 of IPC and Bombay Police Act for rioting, illegal assembly, causing hurt to public servant, resisting arrest and obstructing arrest of another person. We were released on bail on December 21, 2009. When the police produced us before the court, the Magistrate Nalawala, upon hearing about the gruesome incident directly from us and physically verified them on
GUJARAT 145 camera, and noticing our bruises and scars over our bodies and private parts, ordered the police to get us admitted to the Civil Hospital, Godhra, for treatment. But the police, in connivance with the Jailor of Godhra, delayed the treatment and took us to Godhra Civil Hospital as indoor patients after 6 pm. The police managed to get six of us women, discharged after we received first aid. Moreover, Dr. Sharma had categori- cally stated that since the patients are women, we should be examined by a lady doctor. But the police somehow compelled them to make male doctors examine us. Many of us, out of shame did not want our private parts to be examined by a male doctor. This is a proof of thwarting the magisterial intent. The Magistrate Nalawala took cognisance of the police crimes and ordered legal action under Section 202 of CrPC against all the male policemen of Godhra town “B” division. On a complaint by Teesta Setalvad, Secretary of Citizen for Justice and Peace, a delegation of National Commission for Women (NCW) visited the area on a fact- finding mission as dated January 21, 2010. The three member team comprised of Ms. Wansuk Syiem, member of NCW and Chairperson to the present committee set for the fact finding, Ms. Priya Hingorani, advocate of the Supreme Court of India and Ms. Trupti Shah, Lecturer M.S. University. The NCW report (submitted on April 26, 2010) was released after an RTI ap- plication was filed by noted RTI activist Afroz Alam Sahil, documented findings, recommendations of the three- member NCW inquiry committee and also include submissions made to them by different parties including NGOs. This was published in twocircles.net on 8/02/2011 (http://twocircles.net/2011feb08/state_intimidation_ sexual_abuse_and_arrest_godhra_muslim_women.html) by journalists Rehan Ansari and Afroz Alam. The National Commission for Women noted that the Godhra Police allegedly forced themselves into the houses at Hathila plot in around 1:30 in the night of De- cember 19, 2010, abused and misbehaved with a woman observing Iddat (religiously mandated seclusion in mourning of her deceased husband), a mother with a new born was badly beaten while she was holding her baby. The policemen indulged in crass acts like taking their pants off and displaying their genitals to the women. The police did not even spare a young woman who was to get married the next day. She was beaten up to the extent that her toes started bleeding profusely. NCW further observed that “Senior Inspector Mr. A.V. Parmar, constables Prab- hat Singh and Suresh from Godhra had led the ‘criminal group’ of policemen”. NCW had been extremely critical of Police Sub Inspector Parmar and the con- stables and stated that “they crossed all limits of indecency, when their gruesome acts included grabbing and applying brutal pressure on the breasts, buttocks and other private parts of the women victims, while verbally and physically assaulting them. It further observed that on resisting, the women were brutally beaten by lathis and kicked dangerously on the stomach and other body parts. The children and the young adults who had been witnesses of such violence are in a state of shock.” The committee also noted that a lady constable Radhaben admitted that during the combing operation for Haji, the team of 50 policemen (having only 2 lady police)
146 SHRC: SOCIAL AUDIT REPORT–III had forcefully entered a few houses in the locality. But Radhaben stated that no force had been used against those women and that the women had willingly come with them to the police station. Moreover, she out rightly denied any instance of physical or sexual abuse by the police against these women. The Committee lamented about a group of 60 people who acted in an excessively aggressive manner , by not only repeatedly requesting the committee members to not listen to the affected Muslim women, but also by refusing to move out of the corridors of the Circuit House. Even the police force did not ask them to move away. Since the committee feared that in such hostile circumstances, there was a possibility that the affected women could be intimidated or even attacked, they asked the Collector and S.P to disperse the crowd not only from Circuit House but also the adjoining area. The committee then met the victims in a separate room and learnt that more females had been beaten up and taken in the police van apart from those who were ultimately arrested. The committee members requested the DM to call the doctors who had attended to the women victims the day after the alleged incident of physical abuse took place. Dr. R.K Sharma and Dr. Mahesh Sagar who had been associated with a government hospital for the last five years, stated that out of the eight Muslim women in question who had been admitted to the hospital, six had already been discharged after receiving first aid and two of them- Saberabibi and Rukhsanabibi had been kept and treated in the hospital itself, as they had sustained a few injuries. When inquired about the nature and gravity of the injury marks, the doctors stated that it could be a result of being a part of the mob and refused to accept that those injuries have been probable result of having beaten up with lathis. The committee gave the following recommendations stated in a concise manner: 1. Immediate action to be taken against the concerned police officers and they should be transferred from this particular sensitive area. The departmental inquiry should be initiated against these officers. 2. The matter pending before the court should be diligently followed by the lawyers in the panel of the State government and keep the NCW posted on the status of the case. 3. The medical report of the police personnel to be given to see the extent of injuries, if any. 4. To produce the movement register and duty charts of police personnel of divisions A& B 5. The victims should be given full security and counseling for them to get over the mental trauma that they have gone through 6. Compensation should be paid to the victims to cover medical expenses due to the injuries and loss of personal belongings caused by the police personnel and also for the number of days of income loss they suffered on account of this atrocity. 7. The Gujarat government has to come out with a statement accepting respon- sibility for this serious atrocity and human rights violation, apologise to the women victims and circulate clear written instructions and warning to the
GUJARAT 147 police across the state so that similar atrocities do not happen in the future. The complainants also approached the National Human Rights Commission first on December 31, 2009 to intimate about the incident of December 19, 2009 and then to clarify and seek comments on the biased investigation conducted by the Godhra SP and wrote a letter to them dated December 7, 2010. The NHRC in response to both the letters sent by the complainants, in their letter dated 28/04/2011 (More than a year after the initial complaint filed by the victims), first acknowledged the receipt of their initial complaint and to the second letter, they stated that the report sent by the Superintendent of Police, Civil Lines, Godhra to the Chairperson, NHRC, Delhi, revealed that the medical certificates obtained by the complainant and other women indicate that the injuries were the result of a struggle by the mob to free the absconder Abdul Rauf Hussain Badam. It also stated that the mob prevented the police from doing their duty and hence got the absconder freed. It also revealed that Complainant No. 1 is the wife of the said absconder and so the mob including his family members had attacked the police with iron pipes and pelted stones at them, due to which many police personnel got injured. The report further revealed that PSI Parmar had been transferred from Godhra town to SOG, Godhra, in public interest and hence there was no need for departmental inquiry against PSI Parmar and other police personnel. The NHRC noted that NCW had taken congisance of the issue and hence the intervention of NHRC was not required and with this, they declared the case to be closed. One of our complaint letters was also copied to the GSHRC but it yielded no response.
148 SHRC: SOCIAL AUDIT REPORT–III Dalit Youth Burnt Alive Junagadh District Victim’s father Kalabhai Sarvaiya deposing the case late Laljibhai Kanabhai Sarvaiya
nkolali is located 10 km away from the Una Block of Junagadh District in Gujarat. Population of this village is around 1800, main dominant caste is AKoli, only one dalit family living in the village. The Ankolali village comes under Gir Gadhada Police Station, Una Block, Junagadh District. My family who had been living in this village is dependent on the agriculture and mines activities. My family is the survivor in this incident and now we have migrated and living in Una city in a rental house. I, Kalabhai, have five sons and they were living collectively in the Ankolali Village. Four of my sons got married. In 1977 we got land (14 bigha) from the government so we are self employed and also we have one shop for the puncture repair. On September 13, 2012 early in the morning 7:30 to 8am, a mob showed at my house shouting. Three days back Rajiben Dhirubhai aged 19 years was missing from the Ankolali village and it was suspected that my Laljibhai supported another person in Dhirubhai Koli’s daughter’s kidnapping. I, my wife and sons were at home, early in the morning and Laljibhai- my son, was asleep in the house. Dhirubhai Koli, father of Rajiben, accused me that my son could be involved in his daughter’s kidnapping. He asked me for information about her daughter’s whereabouts and I replied that my son was asleep in the house. The angry mob started attacking my house, by pelting stones. There were around 500 people in the mob and they had come with stones, sticks, rods and others came with kerosene and petrol cans and burnt Laljibhai Kalabhai Sarvaiya, aged 27, alive and burned his house. One lakh rupees cash, shop and all the house materials was hence destroyed and the other members of the family were also attacked by the mob and wounded by the mob, which belonged to the Koli community. Laljibhai had called Bijalbhai, a social worker from Una for help when the mob had started attacking his house and Bijalbhai informed at the Gir Gadhada Police Sta- tion. The police rushed to the village but by then Laljibhai had died. After the incident, the police came and registered an FIR five hours later. The FIR was lodged by myself in Gir Gadhada Police Station, Una, Block of Junagadh District for my son who was burnt alive and his house burned and three family members seri- ously injured in this incident. Gir Gadhda Police Station, Junagadh District, lodged FIR under Crime Reg. No. I- 47/12 IPC, 302, 324, 436, 143, 147, 148, 149, 449, 342, 120-B, GPA- 135, and 3(2)5 of SC/ST (PoA) Act. Investigation was started by Deputy Superintendent of Police Zala, Veralval Division and 11 accused were arrested
GUJARAT 149 from the spot. Now, all accused arrested by the police all are in jail. Accused names 1. Banabhai Kanabhai Vaja (Koli)-Village head (Sarpanch); 2.Gabharubhai Kanabhai Vaja (Koli) -Brother of village head; 3. Dhirubhai Virabhai Vaja (Koli)-Father of Raji- ben-who was missing; 4. Laljibhai Vasharambhai Vaja (Koli); 5. Panchabhai Lakhab- hai Vaja (Koli); 6. Arjanbhai Babubhai Makwana (Koli); 7. Hamirbhai Arjanbhai Vaja (Koli); 8. Babubhai Danabhai Vaja (Koli); 9. Rambhai Bhikhabhai Vaja (Koli); 10. Bhikhabhai Virabhai Vaja (Koli); 11. Praveenbhai Dhirubhai Vaja (Koli) who are the main accused involved in this incident but some others are still, not arrested. Police did not take remand of the accused so many more names of the people responsible for the incident is still under covers. My family has migrated from Ankolali village to Una city because of fear of the accused and their relatives and because of insufficient police protection to my family members in Ankolali village. My family lives in constant fear of further attacks from the dominant caste people.
List of Lives Affected
SN Name Age Place Type of Violation 1 Laljibhai Kanabhai 27 At house, An- Burnt alive by mob, Sarvaiya kolali village died at spot 2 Kalabhai Jethabhai 69 At house, An- Wounded seriously in Sarvaiya kolali village attack by mob 3 Jayantibhai Kalab- 30 At house, An- Wounded seriously in hai Sarvaiya kolali village attack by mob 4 Jinabhai Kalabhai 26 At house, An- Wounded seriously in Sarvaiya kolali village attack by mob
List of Property Destruction S. Property Place Type of Violation Price 1 Two houses Ankolali village Burned by mob Rs. 5,00,000/- 2 Case Rs. One Ankolali village Burned by mob Rs.1,00,000/- Lakh 3 TV Ankolali village Burned by mob Rs. 6,000/- 4 Cupboard Ankolali village Burned by mob Rs.4,500/- 5 Jewelry Ankolali village Burned by mob Rs. 4,00000/- 5 Vessels Ankolali village Burned by mob Rs. 15,000/- 6 Motor Bike-1 Ankolali village Burned by mob Rs. 32,000/- 7 Shop (punc- Ankolali village Destroy by mob Rs. 1,44,000/- ture )
150 SHRC: SOCIAL AUDIT REPORT–III 8 TV Dish Ankolali village Destroyed by mob Rs. 2,200/- 9 Three buffalo Ankolali village Disturbed Rs. 42,000/- 10 Two Ox Ankolali village Disturbed Rs. 36,000/- 11 Horse Ankolali village Disturbed Rs. 22,000/- 12 Cow Ankolali village Disturbed Rs. 5,000/- 13 Chadars Ankolali village Burned in house Rs. 2,400/- 14 Sarris Ankolali village Burned in house Rs. 18,000/- 15 Beds - 4 Ankolali village Burned in house Rs. 8,800/- 16 Light system Ankolali village Burned in house Rs. 10,000/- Total Rs. 13,47,900/-
Complainant Prayed for Judgment Against Respondents in his Letter to the NHRC as follows: 1. Investigation to be done by a CBI (Central Bureau of Investigation). 2. Immediately produce complainant and witnesses before the Magistrate and make a statement under Cr.PC 164. 3. Police protection needed to the family, round the clock at the house. Deploy special police at survivor’s house. 4. Make a (SIT) special investigation team of CBI police officers to investigate this case. 5. Arrest immediately the accused other villagers who were involved in burning dalit youth alive and destroying house and shop in Ankolali village. 6. Add other sections which are not invoked in FIR or missing in FIR like IPC, Section 34, 326, 201 and Section 3(1)3,10,14,15, 3(2)3,4, 6, and 7.of SC/ ST (PoA) Act. 7. Ensure the investigation be completed in 30 days as per Rule 7 of SC/ST (PoA) Act, 1989. 8. Make a judicial inquiry by sitting judge of high court. 9. A parliamentary committee should be formed by the central government and makes visit and probe this incident. 10. One committee from central government should be formed consisting of the secretary, home department, secretary, social justice and secretary of the NHRC, NCSC, NCW, and NCPCR and makes visit at spot. 11. NHRC should make a special investigation team for this dalit youth killing incident. NHRC should intervention immediately with investigation team. 12. Institute a departmental inquiry against the police officers who does not take remand from the court of the accused for other person’s involvement in burning alive of dalit youth. 13. Dalit youth burnt alive and killed by the Ankolali villagers when it’s responsi- bility of the State to protect the life of each citizen of India. The State should
GUJARAT 151 pay compensation of Rs. 10,00,000 to each of the victim. 14. Victim’s family migrated from Ankolali village to Una city so rehabilitation needed to be given under special contingency plan under SC/ST (PoA) rules. 15. Government should make a plan for giving employment under state government for deceased dependent. 16. Government should allocate 10 acre land for agriculture to each family. 17. Provide compensation to the tune of Rs. 5, 00,000/- to the family of the victim as per the pro- visions of Dr. Ambedkar National Relief to the Scheduled Caste Victims of Atrocities Scheme (Murder of an earning member of family). 18. Government must ensure appointment of credible advocate as a special public prosecutor in these cases which are worst human rights violations.
The NHRC had transferred the case to GSHRC but there is no response from GSHRC. The Additional Sessions Court at Una (Junagadh District), declared in its order (on 10/10/2012) against the accused that were the applicants in this case, and thus rejected their application: “The alleged crime against the present applicants can certainly be called heinous crime. Therefore, there is absolutely no merits in the submission of learned advocate Shri K.D. Dave that only three accused were having kerosene can yet all have been involved. The fact cannot be discarded that other applicants also took part in forming illegal assembly and encouraging the applicants to commit such a cruel crime with shouts, armed with stones and sticks”. “The offense committed is against a poor and down trodden caste of society and looking at the offense, such a crime should not be lightly considered”. “The application is rejected and is ordered to stand accordingly disposed of.”
152 SHRC: SOCIAL AUDIT REPORT–III Rape and Murder of a Dalit Minor Girl Ahmedabad District Victim’s father Bhomaji Devaji Marwadi deposed the case
Sangeetha
am a diamond worker from Rajasthan and have been living in Ahmedabad for about 14 years. My daughter Sangeetha was seven years old when she was study- I ing in Shreeji School in Bapunagar area of Ahmedabad. She was found missing on February 1, 2009 at 1:30 pm in the afternoon. On the same date, I informed the Bapunagar police about my daughter being missing. On February 4, 2009, my daugh- ter’s dead body was found at the Bapunagar Municipal School by a female sanitation worker. I filed a complaint in the Bapunagar Police station against unknown persons un- der IPC Section 363,376 and 302. The investigation had been given to the Police In- spector of Bapunagar Police Station. The police failed to take any initiative or get any clue of the accused. Then I wrote to KG Balakrishnan, the then Chief Justice, Supreme Court of India, for the detention and inquiry of two suspects- 1. Babarbhai Desai ( Rabari) 2. Vishal Rabari, in this case. A request was also made for inquiry of eyewit- nesses Sanjay Nibaji and Jitu Magnaji and Suresh Patil (watchman of school), Ashaben Sureshbhai whose daughter Tanisha was with Sangeeta the same time. The incident is not properly handled by the concerned police official (Police In- spector of Bapunagar Police Station) due to his negligence and nexus with accused family. Looking at the seriousness of the case I also, through a civil society organisa- tion- Navsarjan, demanded that the investigation of the case should be given to CBI under the supervision of a senior woman IPS Officer. I wrote a letter to the CM praying for the following: 1. that the investigation be carried out by CBI 2. that the accused be arrested 3. that the victim be given compensation 4. that FIR to be lodged against those responsible for negligence of duty The same letter was copied to the Gujarat Hight Court, the Supreme Court of India, the Commissioner of Police and the then President and Prime Minister of India. The case filed with NHRC (Case Details of File Number: 2634/6/1/08-09), yield- ed the following response from the NHRC: “The complaint is not entertainable in accordance with the provisions of Section 36 of the PHRA, 1993 read with Regulation 9 of the NHRC (Procedure) Regulations 1994, as amended. Hence no action is called for and the file is closed”. The NHRC dismissed the case in limine.
GUJARAT 153 Police Atrocity Rajkot District Written submission to the Jury
Kanranji Valjibhai Solanki, Mukesh Valjibhai Solanki, Naresh Saileshbhai Saresha, Prafulbhai Manjibhai Danger, Kantaben Mohanbhai Chavda, Rupaben Savjibhai Sonderva
n June 25, 2012, many dalits living in Ambedkar Nagar colony in the Tho- rala Ward of Rajkot city became victims of the police brutality unleashed on Othem. The said incident occured as a series of incidents that started after the murder of a dalit leader Gunwant Rathore by certain non-dalit elements in the area on June 24, 2012. The funeral of the leader was organised on the following day- June 25, 2012. Around 250 dalits participated in the funeral ceremony. After the burial ceremony was over, some of the participants took out a proces- sion demanding the arrest of all the accused involved in the murder of their leader. They gathered on the main road close to their residential colony- Ambedkar Nagar. The police party present there in large numbers unleashed a brutal lathicharge on the people who had thus gathered; the police also pelted stones and fired tear gas shells to disperse this group of dalits, who were only protesting the murder of their leader and demanding the arrest of the culprits. This lathicharge was completely unprovoked and unwarranted and the violence that followed the lathicharge was even more brutal. See- ing the tension, many of the dalit inhabitants of Ambedkar Nagar closed their doors and remained inside to avoid any trouble. The police entered the residential areas, il- legally broke into the houses, shouting the worse possible casteist abuses against dalits and assaulted anyone they found in the houses. The result was serious injuries to little children, women and young girls. Following the lathicharge and the illegal assault by the police on dalits inside their houses, the police indiscriminately detained several people who were not even present in the procession; even a young mother with a three year old child, who were all charged under various sections of the IPC and still languishing in jail. The following are names of some of the victims who were injured in this brutal police atrocity: 1. Kanranji Valjibhai Solanki Age: 9 years Address: 3, Ambedkar nagar, 80 feet road, Aji Vashat, Rajkot- 3 The above mentioned boy was playing in his house after returning from morning school when police broke open the door of his house and started assaulting him with
154 SHRC: SOCIAL AUDIT REPORT–III their lathis, and police kicked the boy in his private parts and injured his testicles. 2. Mukesh Valjibhai Solanki Age: 14 years Address: 3 Ambedkar Nagar, 80 feet road, Aji Vashat, Rajkot- 3 The above mentioned victim was resting in his house at the time of the incident and had just returned from school and was unaware of what was happening. The po- lice broke open the door of his house and caught him and started assaulting him with lathis, leading to fracture in his leg. 3. Naresh Saileshbhai Saresha Age: 11 years Address: 3, Ambedkar Nagar, 80 feet road, Aji Vashat, Rajkot- 3 4. Prafulbhai Manjibhai Danger Age: 16 years Address: 3, Ambedkar Nagar, 80 feet road, Aji Vashat, Rajkot- 3 The above mentioned boys also sustained serious leg injury. 5. Kantaben Mohanbhai Chavda Age: 38 years Address: 3, Ambedkar Nagar, 80 feet road, Aji Vashat, Rajkot- 3 The above mentioned woman victim was the member of the procession carried out after the burial of the dalit leader. The woman was taking bath with other women in the bathrooms built near the burial ground for the ritual of Uttarkriya (bathing after burial) and police started assaulting her with lathis, continuously hitting her as she was trying to get away from the police. 6. Rupaben Savjibhai Sonderva Age: 16 years Address: 3, Ambedkarnagar, 80 feet road, Aji Vashat, Rajkot- 3 The above mentioned victim girl was busy with her household chores and was completely unaware of what was going on outside her house. The police broke open the door of the neighbouring house, climbed the stairs up to the terrace and found the girl cooking on the terrace of her house. The police called her towards them, but the girl was scared so she yelled and tried to escape; but the police chased her and kicked her; the impact of the kick was such that the girl was thrown down the stairs of her house leading to serious spinal injury and leg injury. As a result of the spinal injury, she is now completely confined to the bed and there is a possibility of permanent disabil- ity. The girl personally identified the police officials who assaulted her and the names of the officers responsible for her condition are ACB Rabari and PI Sarvaiyya. The Ahmedabad Civil Hospital, after admitting the victim, registered the case as medico- legal case and intimated the Rajkot police about the incident. The Rajkot police failed to take any action in this regard and did not care to register the statement of the trau- matised victim. Eight FIRs were lodged with respect to the said incident. The case was brought before the High Court of Gujarat. A counter affidavit was filed by Mr Vishalkumar B Vaghela (IPS), Assistant Commissioner of Police, Rajkot city on August 23, 2012 stating that the police “had acted with patience and great resistance”, “the police was
GUJARAT 155 compelled to use mild lathicharge to control the situation”. A complaint letter was also sent to NHRC and GSHRC for intervention- in or- der to take serious cognizance of the matter and order an inquiry in this brutal police atrocity and also direct the State of Gujarat to ensure that a case of SC/ST (Prevention of Atrocities) Act 1989, be registered against the policemen and also full protection be given to the victims by neutral police officers who enjoy the confidence of the com- munity. The NHRC, in its response on August 1, 2012, (Case No. - 1093/6/21/2012/ OC) directed the DGP to submit a report within four weeks. GSHRC issued a notice to the Commissioner of Police, Rajkot city to submit an enquiry report. After receiving the report from the commissioner, they disposed of the case.
156 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity Sabarkantha District Parmar Sanjaykumar Atmarambhai deposing the case
Dalits of Tajpur Village
am a 37 year old social worker at Navsarjan Trust, Gujarat, resident of 13, New Street of Ashok Mill, Opposite Ashok Mill, Naroda Road, Ahmadabad District, I belonging to SC community (Sub-Caste: Vankar). On April 29, 2012, I, and a member of the Scheduled Castes community from Tajpur village of Talod Block (Sabarkantha District) went to the Talod Police Station to lodge an FIR against the Tajpur dominant castes who tried to obstruct a marriage ceremony on April 28, 2012, by not allowing the Scheduled Castes to play musical instruments during the ceremony in Tajpur village. We first met PSI V.V. Odedara, Vitthalbhai (Head Constable), Jagdishbhai Mevada (Station House Officer) in Talod Police Station and provided details about what happened in Tajpur village on previ- ous day April 28, 2012 with the Scheduled Castes. PSI Talod Police Station and their police staffs denied to register complaint against the dominant caste who did not allow the Scheduled Castes to play musical instruments on the public road in Tajpur village. Mr. Sanjay Kumar and Jayantibhai Somabhai Nadia, Amrutbhai Shanabhai Nadia, Baldevbhai Mohanbhai Nadia, Chandubhai Motibhai Nadia, Jivanbhai Motibhai Na- dia, and Ashvinbhai Nadia, who are the leaders of the community, addressed this issue and tried to explain to the police to lodge an FIR against the accused. The local police was not interested to lodge an FIR. The complainant and others kept waiting for three hours at the police station. Mr. Sanjay Kumar called the SSP, Mr. Chirag Koradiya, Sabarkantha, on his Mobile No. 9978405081 and gave him details about the incident that happened on April 28, 2012. The SSP of Sabarkantha ordered to lodge an FIR but local police was not interested to lodge the FIR. Only after one hour, the police lodged an FIR against accused under Crime Register No.: II-52/12 under IPC Section 323, 504, 506(2), 337, 341, 143, 147, 149, BP Act 135 and SC/ ST (PoA) Act Section 3(1)(10). But the police did not invoke Section 3(1) 14 of the SC/ST (PoA) act. When the leader of the Nadiya (Scheduled Caste) community, Mr. Amrutbhai Shanabhai raised the point to the PSI V.V. Odedara, “if preventive action was taken by local police, then there would have been no need to lodge FIR”, the PSI got angry and furious on Amrutbhai and addressed him with derogatory and caste based abusive words right in the police station in the presence of others. I requested PSI Odedara to not use derogatory and abusive words. This infuriated the PSI further more and he shouted at me addressing me with derogatory words and saying how I dared to make a
GUJARAT 157 phone call to the SSP, and “will see” how I can work in this area to create social aware- ness. The PSI also denied to give a copy of the FIR to me. After being requested again and again, the PSI Odedara threw the FIR copy and threatened me and others to leave the police station immediately otherwise he would break our limbs. I was abused on the basis of my caste in public by a public servant. This is a viola- tion of SC/ST (PoA) Act Section 3(2)(7) and 3(1)10 and Articles 15 and 21 of the Constitution of India, Cr.PC 154(1) and (3), Rule 5(1) and 5(3) of SC/ST (PoA) Act, Rules, 1995 and Section 4 of SC/ST (PoA) Act, 1989. The officials in charge of investigation have also violated the rules of the Gujarat Civil Services (Discipline and Appeal) Rule, 1971. In my complaint letter to the NHRC as dated 23/06/2012, I prayed against Re- spondents as follows: • PSI, V.V. Odedara, PSO, and head constable accused, should be suspended immediately for not taking preventive action on time for the protection of the SC communities. • A departmental inquiry should be instituted against the accused. • Senior Superintendent of Police, Sabarkantha, Sabarkantha District; and Dy. SP, SC/ST Cell, Sabarkantha, Sabarkantha District, all neglected their duties and did not file an FIR for six months hence, they should be suspended im- mediately and an FIR should also be lodged against them under Section 4 of the SC/ST (PoA) Act, 1989 and IPC Section 217, 218 and 188 • A new FIR should be lodged against PSI Odedara, Head Constable, PSO, and Dy. SP and SSP Sabarkantha for not arresting the accused and not lodg- ing FIR after the complaint was given against him. • Add other sections which are not invoked in FIR or missing in FIR like SC/ ST (PoA) Act Section 3(2)(7) and Section 7 of PCR Act. • The investigation should be completed in 30 days as per the SC/ST (PoA) Act, 1989. • For Respondents to follow Rule 15(1) of the Scheduled Castes and Sched- uled Tribes (Prevention of Atrocities) Rules, 1995, including providing for: 1. Mandatory compensation for the victim. 2. Scheme for strengthening the socio-economic condition of the victim’s fam- ily. • For Respondents to take proper action against the negligent authorities, as per Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; • For Respondents to attach the property of all the perpetrators, as per Section 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; • For Respondents to arrange a Special Prosecutor to try the case as per Sec- tion 15 of the SC/ST (PoA) Act; • For Respondent to include these demands in the agendas of the State- and District-level vigilance committees and have these committees convene a
158 SHRC: SOCIAL AUDIT REPORT–III meeting immediately to address these demands, as per Rules 16 and 17 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The NHRC transferred my case to the GSHRC but there has been no response as yet.
Police Brutality Ahmedabad District Mahesh Pandya deposing the case
Slum Dweller Women of Kankaria
ankaria in Ahmedabad is mostly inhabited by Marathis. The police wanted to clear the place so on 15.06.2007 they went and beat up the protesting Kwomen and the photographic evidence was published in the local newspa- per- Divya Bhaskar. On June 18, 2007, I wrote a letter to the GSHRC Chairperson Daya C Sinha to take up the case suo motu on the sexual harassment that took place, because women were beaten up and their hair were pulled, sarees pulled off. Moreover lady constables were supposed to handle the evacuation and not the male police- which is illegal. The point of contention was why no lady police was present. On December 13, 2007, I got a response from legal officer of GSHRC, A.R Ga- mara, that they investigated the case, but the police went to clear the particular space which was illegally encroached by the said people, so the GSHRC has no further role to play according to the PHRA, 1993. Moreover the DCP was asked to close the file. Those who are responsible for the crime are themselves asked to investigate the case. Two things starkly come out of the above case: –Where is the SHRC’s independent investigation team? –Why is there a wrong interpretation of the PHRA, 1993?
GUJARAT 159 Illegal Detention of Human Rights Defenders Surat District Ambubhai deposing the case
Avinash Kulkarni, Bharat Pawar, Srinivas Sattayya Kurapati, Hansa, AmbuBhai
everal senior activists in Gujarat were arrested under FIR number 1-37/2010 dated February 26, 2010 filed in Police Station Kamrej u/s 120 (B), 121(A), S124(A), 153 A& B of the IPC, and Section 38, 39 and 40 of the Unlawful Activities Prevention Act (UAPA), 2004 Surat Range. All these activists have been falsely charged with being connected with and furthering the cause of the banned CPI (Maoist) organisation. They have been booked under various sections of the IPC and UAPA. It has also come to our notice that two of them had been illegally detained for over 50 hours under the pretext of investigation into the said case. We are shocked by the arrests and illegal detention of these activists. The work of five of these activists – Avinash Kulkarni, Bharat Pawar, Amrit Vaghela (Ambubhai), Hansaben and Srinivas Kurapatti - is described below. They have been working to- wards realising the Constitutional Rights of the poor, dalits and adviasis. These activ- ists have been in the forefront to uplift these groups and have been working towards ensuring the implementation of the various laws which empower these communities. We feel that this is a clear case of silencing the vocal activists as their work exposed the government’s fraud on the people. These people have been working with non-violent means and strongly believe that constitutional means of mobilisation can help people achieve their rights. We are of the opinion that the Gujarat Government is exploiting the hyped up anti-maoist propaganda in the country to silence non-violent and peace- ful defense of human rights and democratic dissent. The ‘omnibus’ FIR, dated February 26, 2010, under which the activists have been arrested, reads like a general essay with no specifications given which are a must in a criminal case. The FIR, beginning with an unsubstantiated general allegation of CPI (Maoist) as having a secret plan to establish a guerilla zone across North Maha- rashtra, South Gujarat and Satpura Forest Ranges with militant cadres, goes on to say that the industrial belt stretching from Ahmedabad to Surat would be the main focus and Surat a focal point for such militant activities. All this is aimed at building a ‘revolutionary movement’ in India and ‘total revolution’ in India. The FIR also al- leges that the Maoists are using the legal trade union movements as cover for illegal secret underground organization and makes sweeping statements such as accusing the detained persons as “carrying out false propaganda among tribal/forest people as well as religious minorities such as Christians and Muslims to separate them from the main-
160 SHRC: SOCIAL AUDIT REPORT–III stream of the nation, to create civil war and to encourage revolt against the constitu- tionally established government...” While an FIR is expected to describe concrete criminal actions by specific indi- viduals what it describes are vague allegations described in ambiguous terms such as “...this FIR is against the underground leaders and members of the banned Naxalite organization CPI(Maoist) ...inciting feelings of dissatisfaction among minorities and tribal people, creating civil war...” (as mentioned in the FIR). A total of 15 people have been arrested (the list is at the end of this testimony). The first arrest of Niranjan Mahaptra, a trade unionist from Surat, took place on March 15, 2010. This was followed by a spate of arrests of activists. The information that we have regarding the arrest and illegal detention of five activists is as follows:
SN Name Organisa- Place of Arrest / Illegal Date of Illegal tions where Detention Detention / they worked Arrest 1 Avinash Dangi Maz- Surat Arrested on the Kulkarni door Union, 22nd of March, Dangi Lok 2010 Adhikar Samiti, Adi- vasi Mahasa- bha 2 Bharat Dangi Maz- Ahwa, Dang District Arrested after Pawar door Union, 3-4 days Dangi Lok Adhikar Samiti, Adi- vasi Mahasa- bha 3 Srinivas Darshan Ahmedabad 30th May 2010 Sattayya (NGO), Kurapati Ahmedabad (Kishore)
GUJARAT 161 4 Hansa (wife SEWA, Illegally detained on May Illegally de- of Srinivas) Ahmedabad 30, 2010. On Srinivas’s tained on May arrest, his family members 30, 2010 were asked to report at the Crime Branch police station at Gaekwad Haveli. Hansa went there with Ambubhai at around 9.00 p.m. Since then she and Ambubhai were illegally detained (without any intimation to the family) till they were released at night on the 2nd of June 2010 5 Ambubhai Lok Kala Went to the Gaekwad June 2, 2010 Manch Haveli Crime branch police station at around 9.00 p.m. There he was illegally detained and transported to Surat, and was released on the 2nd of June 2010 with Hansa at 9.00 pm The following is how the five of the activists, who are also our colleagues in our human rights work in the country, went through the torture heaped on them by the administration:
Arrest of Avinash Kulkarni On the date of May 27, 2010 Avinash Kulkarni was arrested from Ahwa, in the Dangs district and taken to Kamrej, Surat (Rural Police District). Avinash is a widely respect- ed activist working on the human rights of adivasis in the Dangs District of Gujarat. An activist of long-standing repute, he has been working relentlessly for the rights of the Adivasis of Gujarat for around two decades. Based in Ahwa, Avinash and Bharat have been actively involved on issues pertaining to the empowerment and develop- ment of Adivasis, through the Dangi Lok Adhikar Samiti and the Dangi Mazdoor Union, in Dang District. Avinash and Bharat have played a significant role as part of the leadership of Adivasi Mahasabha Gujarat, both in the advocacy and struggle that brought about the Forests Rights Act and the monitoring of its implementation across the adivasi areas of Gujarat. They have always worked with democratic and peaceful means of securing the rights and entitlements of the adivasis and have always stood by non-violent means of working for social change. The remand application for Avinash that was submitted by the police is a mis- guide to his contribution and alleges that he is a member of the CPI (ML) Janshakti Party, playing ‘behind the scenes’ role of instigating tribals to start a violent agitation by being in touch with CPI (Maoist) forces. The application then goes on to give ex-
162 SHRC: SOCIAL AUDIT REPORT–III tremely flimsy grounds for his remand such as it being required to get the details of the meetings he had with certain CPI (Maoist) leaders, to secure more ‘naxalite’ literature from his place of residence and identify all the other people who aided in his ‘naxalite’ activities over the last 18 years in Dangs district.
Arrest of Bharat Pawar Bharat Pawar, an adivasi from the Dangs sistrict of Gujarat, has been a committed worker for the cause of the rights of the adivasis. Closely associated with Avinash Kulkarni, he has been working over the past few years on the wages issue of adivasi labourers through the Dangi Mazdoor Union, and more recently in the struggle of the adivasis to get the Forest Rights Legislation passed and to get the forest land rights of the adivasis through proper implementation of the Act. In this process he has been victimised constantly by the forest officials. Following the arrest of Avinash, within 3-4 days Bharat Pawar was initially de- tained for questioning, and then arrested on the same charges as Avinash. It is quite disturbing how human rights activists such as Bharat Pawar are harassed and arrested and charged with false and serious charges under IPC and UAPA. This is nothing but a ploy to decimate human rights activism.
Illegal detention of Amrit Waghela (Ambubhai) As a significant dalit leader and activist of the city, when Amrit Waghela came to know that Srinivas (Kishore) was picked up by the police at around 7.30 pm in the evening of May 30, 2010, he had gone to enquire at the Gaekwad Haveli Crime Branch office about the whereabouts of Srinivas. He was accompanied by Hansa, Srinivas’s wife. From that time onwards till late night of June 1, 2010, he was not allowed to com- municate with anybody else and was in illegal detention. He and Hansa were taken to Surat along with Srinivas during these 48 hours without even their family members being informed. He was not even allowed access to their lawyer. Amrit Waghela (Ambubhai) has been a cultural activist par excellence since the 80s. He founded the Lok Kala Manch in 1980, which has since produced and per- formed several plays based on dalit issues, women’s issues, political satires, particularly on communal harmony and the dangers of the ideologies of communal hatred. He has been active in countering the communal forces in Gujarat long before the com- munal carnage in 2002 and got engaged in countering such communal elements more intensely after 2002. It is a known fact now that the cadre of the Rashtriya Swayam- sewak Sangh Parivar which had some dalit presence, particularly in Ahmedabad, is now faced with significant desertion of these communal outfits by many of the dalit cadres. Recently he led a major grassroots level movement known as ‘Swabhiman An- dolan’ against the bootleggers in Gomtipur area of Ahmedabad, exposing conclusively the well-known nexus between the police and the bootleggers. His recent efforts to mobilise the urban lower-middle class people against raising electricity charges by the private company that has taken over the power generation in Ahmedabad, created a lot of discomfort in the corridors of power. His courage and integrity has always posed a threat to the police and the political establishment.
GUJARAT 163 The arrest of Srinivas Sattayya Kurapati (Kishore) on dubious grounds Srinivas was picked up on the evening of May 30, 2010, from Gomtipur area of Ahmedabad and was taken to Gaekwad Haveli Crime Branch office in Ahmedabad. The police just informed the family that he was taken into custody; hence the family members should come over to give some statements. Accordingly his wife Hansa, activist Ambubhai and Hansa’s father Ishwarbhai and sisters reached Gaekwad Haveli Crime Branch Station around 9:00pm the same night. They were given no further information regarding Srinivas, were not allowed to meet and talk to him, and in addition Ambubhai and Hansa were separated from the rest of them, not permitted to talk to them. Then the police forcibly sent Hansa’s father and sisters back home to Gomtipur. Srinivas Sattayya Kurapati hails from Nalgonda district in Andhra Pradesh. He came in search of a livelihood in Surat in the late 90s. He worked as a labourer and became a trade union activist during his years in Surat. However dire poverty drove him to Ahmedabad to search for a more stable job so that he could pay off his debts. Through friends and acquaintances he managed to secure a job as a typist in an NGO called ‘Darshan’. Darshan is a cultural organisation led by Hiren Gandhi, a theatre expert, and Saroop Dhruv, a known Gujarati poetess and writer. It works mainly with the mode of street theatre, raising awareness on the issues of poor dalits and adivasis and has contributed to the process of peace and reconciliation in Gujarat following the 2002 communal carnage. It should be noted that Srinivas after having got married to Hansa (the daughter of a respected grassroots dalit activist in Ahmedabad), blessed with a one year-old child and having bought a small house in a Chali, has been struggling along to make two ends meet. As per the police briefings given to the media in Gujarat, he has been called the ‘mastermind’ of the maoist operations in Gujarat, and has been alleged to be linked with the recent train accident at Jhargram. It is ridiculous that such a charge is being made for Srinivas who struggled from being a mazdoor to a typist and lived with his one year old son and wife in Ahmedabad.
The illegal detention of Hansa Srinivas Kurapati Hansa, Srinivas’s wife, on hearing about her husband’s arrest, had rushed to the Gaek- wad Haveli Crime Branch office and reached there around 9:00pm in the night on May 30, 2010. She was accompanied by Ambubhai and later on joined by her father and her sisters. Little did she know that the police would detain her along with Am- bubhai on the grounds that she was a suspected maoist. From 9:00 in the night on May 30, she was detained and not allowed to communicate with her family members, and in a serious act of violation of her human rights, the police did not even consider the fact that her one year-old child was waiting for her at home. Subsequently it has become known that she and Ambubhai were taken to Surat along with Srinivas and then released in the middle of the night on June 1, 2010. Thus she, along with Am- bubhai, was under illegal detention of the Crime Branch of Ahmedabad and of the Surat Police from May 30 to June 1, 2010. And to conclude this saga of cruel rights violation, the Surat Police released her and Ambubhai in the middle of the night on
164 SHRC: SOCIAL AUDIT REPORT–III June 1, 2010 in Surat. They did not even have the courtesy to escort them back home to Ahmedabad from where they were detained. Hansa is a simple working woman who works in SEWA, a NGO, for a living. Coming from a family of cultural activists (her father Ishwarbhai was also part of Lok Kala Manch along with Ambubhai), she had an interest in theatre and had participated in theatre perfor- mances a few times as part of the Lok Kala Manch troupe. However, after the birth of a child and the purchase of their small house in a poor locality, both she and Srinivas were engrossed in their family responsibilities, financial problems and their jobs in SEWA and Darshan respectively.
The harassment of Hiren Gandhi, Director, Darshan On the evening of June 1, 2010, as the news of the arrest of the ‘maoist’ leader from Ahmedabad was being hyped up by the media with briefings from the police, Hiren Gandhi, a theatre expert of repute, and Saroop Dhruv a poetess and writer of great standing, were in a meeting with human rights activists discussing the arrest of Srinivas, the typist from Darshan. A police inspector phoned him on his mobile and informed him that they had seized one computer from Darshan’s office. Although Hiren Gandhi protested, the police, who had come with Srinivas seized the computer and went away. Search and sei- zure procedures, as stated in the Cr.PC were not followed. The entire exercise has become a process of harassment of activists like Hiren Gandhi. In addition to this, the police inspector asked Hiren to report to him in Gaekwad Haveli Crime Branch Station the next day to get a statement recorded about the computer on which Srinivas worked.
Names and Total Number of People arrested till now against FIR Number 1-37/2010 Kamrej PS Surat Range 1. Niranjan Mahapatra 2. Advocate K.N. Singh 3. Raju Pawar 4. Sulat Kuwad 5 Mataram Chaudhari 6. Jayram Goswami 7. Satyamrav 8. Laxman Ambade 9. Vishwanath Aiyar 10. Surya Deora 11. Avinash Kulkarni 12. Bharat Pawar 13. Srinivas Kurapati
Illegally Detained then Released 1. Ambubhai 2. Hansa Srinivas The complaint filed with NHRC yielded the following response from the NHRC on June 4, 2010: The NHRC directed the Director General of Police, Government of Gujarat, Gandhinagar, to submit a report in this regard within four weeks.
GUJARAT 165 Extra-judicial Killings of Dalits Surendranagar District Valjibhai Bechraji Rathod deposing the case
Mehul Rathod, Prakash Parmar, Chhana Vaniya
hangadh is located in Chotila Taluka of Surendrangar District. Thangadh is 20km away from Chotila town and 60km away from Surendrangar city. Total Tpopulation of Thangadh is more than 1,25,000 which include dalits having population of around 30,000 and the remaining being Bharwad, Darbar (Rajput), Koli, and Muslims. Thangadh is known for ceramic industry which is the main enter- prise. Majority of the people staying in Thangadh are dependent on ceramic industry. The details of the incident are as follows: On September 21, 2012, Bharwads and dalits first came face to face after a petty fight at a local fair organised by the Thangadh Municipality. It snowballed into a ma- jor clash with both sides using stick and sharp weapons. Police officials state that they lobbed tear gas shells to disperse the rampaging crowds. When this did not work, they fired at the crowd on September 22, 2012 at 12:30 am in the night. Seventeen-year- old Pankaj Sumra was seriously injured in the firing. The relatives of the deceased and people from the dalit locality took the injured Pankaj to Thangadh Civil hospital and he was referred to the Civil Hospital, Rajkot where the government doctor declared him dead. The police firing was done without any order by Mr. Raghvedra Vatsa, Senior Superintendent of Police, Surendranagar. After the firing Mr. Vatsa came to Thangadh and did not take any action. News of the death sparked outrage among dalits in Thangadh who took to the streets demanding that a complaint be filed against police officials responsible for the death. With tension in the town, police officials called in reinforcements. However, next afternoon a group of dalit youths clashed with the police at Dholeshwar area. The police again opened fire in which three people received bullet injuries. They were rushed to the Rajkot Civil Hospital where Mehul Rathod, 17, and Prakash Parmar, 21, died. The condition of Chhana Vaniya, 25, was critical. Mr. Hari Krishan Patel, Senior Superintendent of Police, Jamnagar district, was in-charge of Thangadh Police Station area and was presented in the second incident. His commandos fired on dalit mob with AK-47 and other policemen also participated in the firing. Mr. Hari Krishna Patel was on duty as Senior Superintendent of Police, because during that time Mr. Raghvendra Vatsa was busy in organising Bandobast for the Chief Minister’s Swami Vivekanand Yatra. Three complaints have been lodged in the Thangadh Police Station, under IPC sections and under relevant Sections of Prevention of Atrocities Act against police but
166 SHRC: SOCIAL AUDIT REPORT–III no action was taken against the accused police officers. Thangadh police also lodged a false FIR against seven dalit youth and they were arrested and put in the police custody on false charges. With great difficulty, on September 26, 2012, three FIRs were lodged against four police officers namely: 1. Police Sub Inspector, K.P. Jadeja, 2. Police Sub Inspector, Bharatsinh Solanki, Thangadh Police Station 3. Head Constable Yogeshdan Gadhavi, Thangadh Police Station 4. Head Constable Nathubha Andubha Rana, Thangadh Police Station, and one more policeman at the Thangadh Police Station. The FIR was lodged under Crime Register No.: I-71/12, I-72/12 and I-73-/12 under the IPC Section 302, 147, 148, 149, 114, 120-B and SC/ST (PoA) Act Section 3(2) (5) - the same sections and same accused in all three FIRs. This is a violation of Article 21 (Right to Life) of the Indian Constitution and also child rights violation. It is also violation of SC/ST (Prevention of Atrocity) Act Sections 3(1) (5) and 3(1) (7). The family lives in constant fear of further attacks from the dominant caste police officers. The intervening organisation Navsarjan had written to the Asian Human Rights Commission, which sent an urgent appeal to UN Special Rapporteur on Extra-judicial killings, for intervention in this case of extra-judicial killing by the police against pro- testing dalits. This case was sent to the NHRC also for intervention.
GUJARAT 167 Murder of a Dalit Youth Rethal Village, Ahmedabad District Laxman deposing the case
Late Atulbhai
his village is 25 kms away from the block headquarters. The total population in this village is around 4500. Although there are 126 dalit families, but the TRajputs are the dominant castes who are mainly landlords. Untouchability practices against dalits are rampant. Dalits are also forced to do caste based occupa- tions. Before this incident there have been three incidents of atrocities against dalits by the main accused Yuvrajsinh Bharatsinh Dodiya. But in none of the incidents the accused was arrested by the local police. This resulted into the fourth incident where the accused murdered a dalit youth. At 6:30 pm on January 24, I was entering the village in my auto rickshaw while paralegal Kamlaben was sitting behind in the auto rickshaw. Having seen me coming, the main accused with other accused attacked me with sticks and smashed the front mirror of the rickshaw. The list of the perpetrators (all Rajputs) is as follows: 1. Mr. Yuvrajsinh Bharatsinh Dodiya 2. Mr. Bharatbhai Balsangbhai Dodiya 3. Mr. Jabbarbhai Balsangbhai Dodiya 4. Mr. Balsanbhai Jethabhai Dodiya 5. Mr. Jahubhai Dhirubhai Dodiya 6. Mr. Dhirubhai Jaymalbhai Dodiya 7. Mr. Rayabhai Jaymalbhai Dodiya 8. Mr. Sureshbhai Jagabhai Rajput Seeing this, Kamlaben started shouting for help and ran towards the dalit local- ity. Listening to her shout, the other dalits, both women and men rushed towards the incident. The accused attacked other dalits who came to save me. This resulted in the killing of Atulbhai and other five dalit men received injuries. When the dalits tried to call the ambulance, the accused did not allow the ambulance to enter the village. So the injured were taken in a private vehicle to a private hospital. Atul was declared dead in the hospital. On January 25, morning, the dalits of Rethal Village, decided to take the body to Sanand Police Station to demand for im- mediate arrest of the accused. Lot of pressure was put on the dalits by the authorities including District Magistrate, Inspector General of Police, District Superintendent. They had several meetings with the dalits who were sitting next to the dead body, but failed. The chief minister also spoke on the phone with the uncle of the deceased. As January 26, being a national holiday i.e. Republic Day, the police filed a com-
168 SHRC: SOCIAL AUDIT REPORT–III plaint against 125 dalits and forcibly took away the dead body to the civil hospital in Ahmedabad. On the same day, the main accused was arrested by the police. The other accused were arrested within a week. The FIR filed by Sanand Police; medical certificate; post-mortem report, fact-finding report, press clippings, video shooting and pictures were the main evidence. The FIR included, Indian Penal Code (IPC) Section147, 148, 149, 302, 307, 323, 324, 504, 506(2) and SC/ST (Prevention of Atrocities) Act Section 3(1) (10). Police protection is being provided to the survivors of the incident. Police investi- gation is going on. The compensation of Rs. 3,50,000 has been given to the survivors and family members of the deceased.
Environmental Pollution Rajkot District Mahesh Pandya deposing the case
People of Laamba Village
n June 8, 2007, I wrote a letter to Mr. Sinha, the then chairperson of GSHRC, stating that from the canal between Naroda to Batwa, sewer water Oflows from Odhav and Naroda and that gets deposited in the canal. On May 22, 2007, the authorities deposited the water in the canal because of which in Laamba Village there is a lot of stench. Similar case happened on June 6, 2007 and since then every week this kind of incident is happening. So I complained to the GSHRC. GSHRC approached the pollution control ward- Gujarat Pollution Control Board (GPCB)- which said that they are taking action and trying to find a solution. So, the GSHRC, instead of taking up the investigation themselves, said that pollution control ward is taking action so they will not investigate. Moreover, they told the GPCB to close the file.
GUJARAT 169 Manual Scavenging Ahmedabad District Ramila deposing the case
MANUAL SCAVENGers of DHOLKA
n November 16, 2009, a memorandum to the Sub-Divisional Magistrate of Dholka, depicting the facts stated below, was submitted by Citizen’s Rights OCommittee. But no proper action was taken by him and hence Navsarjan presented the same to the NHRC on May 14, 2012. Five Nagarpalikas (Municipalities) were established in the state of Gujarat from 1856-57 and Dholka is one of them. As per the 2001 census, Dholka city’s popula- tion is 51,873, which is distributed in 12 wards. In Dholka city there are 4039 (7.79 percent) people belonging to Scheduled Castes, and the Scheduled Tribes popula- tion is 35,731 (68.89 percent). More than a quarter of Dholka’s population lives in slum areas. This is a higher proportion of the population than in other cities of the Ahmedabad district. In various areas of Dholka city, including Chitarvada, Khijada Sheri,Zandiya Kuva, Kshatriya Thakor Vas, Govaliya Vas, Gundra, Chui Fali, Sonar Kui/Barkotha and Vaghri Vas, the Constitutional Right to Life with dignity (Article 21 of the Con- stitution of India) is being violated. The situation of public dry latrines and Vada toilets is very pathetic. The doors of public toilets are broken. Open drainages are full of human waste and uncollected garbage. As a result, there is a constant bad smell that the areas’ residents are suffering from. Furthermore, the health of the people re- siding in is very often affected by this dirt and filth. Many people suffer from serious illness like fever, diarrhea, vomiting and malaria and in particular it’s the women and children. The public toilets and Vada toilets have no water facility. Because of extreme filth, people are defecating in the open and again women are the ones who are suf- fering the most. In addition, there are other important basic facilities lacking in these areas: clean drinking water, drainage, street lighting, housing and concrete roads. The City Development Department of the Gujarat State Government created the “Nirmal Gujarat” scheme as a strategy for the development of cities. But Sched- uled Caste areas and undeveloped rural areas of Gujarat do not get the advantages of these facilities. Dholka Nagarpalika has established eight “Pay and Use” toilets for the public. Out of which the toilets located in Popatpara, Brahmin Pith, and the Taluka Panchayat area are dysfunctional and other toilets which are functional do not remain open for public use 24 hours a day. In this situation, the nagarpalika uses sanitation workers for cleaning these dry toilets and Vada toilets, despite the fact that this work is prohibited under 1993 Act (1993) “The Employment of Manual Scavengers and
170 SHRC: SOCIAL AUDIT REPORT–III Construction of Dry Latrine (Prohibition) Act, 1993, Section 3 (Manual Scavengers are those who clean human waste physically). Under Section 5(1) of this Act, the sub- divisional magistrate can take action against the responsible authority, but no action is being taken on this aspect. The details of the specific situation in each area are elaborated below: Chitravada- In this area there is a population of 500 people from Muslim, Thakor and Patel communities. The local school is situated in this area and it is in front of the nagarpalika. A public toilet, in which there is no water facility, is also built in front of school. This toilet is filled up with human waste, which spills out into the public road. As a result, children of the school and the local people’s health are at risk. Also, school children and buffaloes have fallen into an open manhole in this area. Information about this situation has been provided often by the school organisers to the nagarpa- lika, but they are not taking any action. It is necessary that the dry latrines are to be converted into flush latrines and filth has to be removed from this area. Khijda Sheri- In this area there are 750 people from various castes, including Vankar, Valmiki, Brahmin, Devi Poojak, Raval and Patel communities. A Vada latrine is di- rectly adjacent to the Valimiki area, and it is used by people from all of the above castes for defecation. Because of the filthiness of human excrement, people in this area often suffer from serious sickness. Water is not regularly available in this area and there is problem of street lighting as well. Sanitation workers from the nagarpalika are clean- ing this vada latrine and the prohibited work of manual scavenging is going on. Zandiya Kuva- The population of people from Vankar, Valmiki, Muslim and Devi Poojak communities in this area is 450. Adjacent to the Valmiki caste area, an old vaada latrine is constructed by the nagarpalika. Here also, there is no water facility so the filth overflows in the open gutters. Dry latrines have been constructed in this area by the nagarpalika, but their doors are broken and it creates filth and odour in the area putting local people’s health at risk. Drainage, street lighting and water are also other issues in this area. Kshatriya Thakor Vas- The population in this area is 600, made up of people from Thakor, Devi Poojak, Muslim and Bharwad communities. There are dry latrines under supervision of the nagarpalika on the road sides, but their doors are in broken condi- tion and as a result, women face many difficulties. Dry latrines and open drainages are full of human waste, so people defecate in the open and again women face more problems. This is the main road of the city so the local people are affected from the filth. Health is the major issue of the people in this area. Govaliya Vas- The population in this area is mostly from Thakor and Muslim commu- nities. There are dry latrines constructed by the nagarpalika both for men and women. Approximately 300 people use these dry latrines every day. Human filth overflows from the toilets and gutters due to lack of water facility. Their doors are in broken condition, resulting in humiliating situations for many women. There is heaps of un- collected garbage around the toilets. Open gutters are situated in front of residential areas, resulting in regular sickness amongst the residents. Information about this situa- tion has been provided on many occasions to the Nagarpalika, but they have not taken any action. Sanitation workers from the nagarpalika are cleaning this vada latrine and
GUJARAT 171 the prohibited work of manual scavenging is going on. Gundra- The population in this area is made up of people from Valmiki, Devi Poojak, and Patel communities. There are dry latrines constructed by the nagarpalika in this area. Lack of proper drainage, street lighting and housing are the main issues being faced by people in this area. Dry latrines are consistently full of human waste, resulting in frequent sickness of people in this area. Chui Fali- The population in this area is 350, made up of people from Valmiki, Devi Poojak, and Muslim communities. There are dry latrines in this area, and half of them have fallen down and are filled up with human waste. As a result, people defecate in the open. There are heaps of uncollected garbage and human waste in the area around the toilets. The health of Valmiki people in this area is at serious risk. Basic facilities such as clean water, proper drainage, street lighting and housing are not provided in this area by the nagarpalika. Sonar Kui/Bar Kotha- The population in this area is 700, made up of people from Valmiki, Devi Poojak, and Vankar communities. There are dry latrines and vada toilets in this area; they are full of human waste, resulting in an intolerable odour faced by people in this area. The vaada toilets and dry toilets of this area and other areas are being cleaned by Ishwarbhai Somabhai Purabiya. Sonar Kui/Vaghri Vas- The population in this area is 300, made up of people from Devi Poojak and Thakor communities. Because of human waste from dry latrines and uncollected garbage, the health of local people is at risk. Primary and basic facilities like clean water, proper drainage, CC, roads are not provided in this area by the na- garpalika. The resolutions relating to Scheduled Castes special component plan and urban development and urban housing construction development, Gandhinagar have not been implemented in the above mentioned areas by Dholka Nagarpalika. As a result, the residential areas of the city in which people from Scheduled Castes live have not received clean public toilets and toilets for women, clean concrete roads, clean proper drainage, or clean drinking water. Indian Constitution Article 14 (Right to Equality), Article 15 (No discrimina- tion based on religion, gender, sub-caste and birthplace), Article-17 (Eradication of Untouchability), Article-21 (Right to Life) are being openly violated. In Dholka city, the area in which people from Scheduled Castes live has no concrete roads and no underground drainage facility. Dry latrines and vada toilets also put the local residents’ health at risk. There is no facility of clean drinking water. More than 50 percent of people from Scheduled Caste do not have their own place of residence, and 55 percent are unemployed. Indian Constitution’s Article 38, 39, 46, 47 (which are binding to the state gov- ernment) have been violated by Dholka Nagarpalika. In light of the above, we the Dholka city’s inhabitants, demand the basic facilities that are our rights as per “Nagrik Adhikar Samiti” i.e. “Citizens Rights Committee”. We hope and expect that justice will be delivered. The following demands were sent to the NHRC (Case Details of NHRC File Number: 639/6/1/2012) and stated that it should be implemented immediately. This
172 SHRC: SOCIAL AUDIT REPORT–III was requested to be provided for from the 2009-10 Budget of the scheme entitled “Development of Dirty Areas”, and under the “Scheduled Castes Special Component Plan”. The following should be provided, starting immediately: • Uncollected garbage, human waste, and other dangerous waste must be re- moved from the city, urgently. • Manual scavengers are forced to clean and maintain public dry toilets and vada toilets. This work is prohibited under the Act “The employment of manual scavengers and construction of dry latrines (prohibition) Act, 1993” and hence criminal proceedings should be taken against the Chief Officer and Chairperson of Dholka Nagarpalika, and they must be dismissed imme- diately. • All “Pay and Use” toilets should remain open for 24 hours. • Urinals and toilets with water facilities for women must be constructed in each ward. • The area in which people from Scheduled Castes live lacks basic facilities. Hence development work should begin immediately in accordance with the government’s own scheme entitled under “Scheduled Castes Special Com- ponent Plan.” • All public roads in the Dholka city should be made of R.C.C. • In accordance with the “Nirmal Gujarat” Scheme, facility for urinals and toilets with underground drainage system must be provided in every home. • All open drainage in the city should be converted into underground drain- age. To this, the NHRC’s response was the following: “Despite sufficient time and opportunity having been given, the requisite report has not been given. In these circumstances, let summons be issued for the personal appearance of Chief Secretary, Government Of Gujarat, Gandhinagar, before the com- mission on January 21, 2013 at 3pm along with requisite report. In case the report is received on or before January 14, 2013, the personal appearance of Chief Secretary, Government of Gujarat, Gandhinagar shall stand dispensed with.”
GUJARAT 173 Police Brutality on Dalits Panchmahal District Kantibhai deposing the case
Arvindbhai and others
ed Village, district Panchmahal, is populated by a majority Bhoi community and minority Scheduled Caste community. Most individuals of the SC com- Vmunity work as agricultural labourers on own land. Population of this village is 728 persons. Ved village is 20 km away from Lunavada Block. On May 10, 2012, at 11 am in Ved Village, Mr. GP Joshi, retired PI, passed from the Dalit locality in his vehicle. He was going to his farm house in Ved village. Some water fell on the road from the tap and Mr. Joshi’s car passed by. He got angry with the women and used derogatory words against them with casteist abuses. At that time Mr. Arvindbhai Bhikhabhai Vangkar, aged 19, came out from his house after hearing derogatory words. He told Mr. Joshi to stop the same for Scheduled Caste women. Then Mr. Joshi got angry on Arvindbhai Bhikabhai Vankar and attacked him with the pipe on head and then other parts of his body. Other Scheduled caste members gathered and caught the pipe form the hand of Mr. GP Joshi. Mr. Joshi went back to the vehicle and took a hockey stick and beat Arvindbhai Bhikabhai Vankar. Mr. Joshi then ran away form dalit locality to his farm house and called police. He complained to police that “one drunk man, namely Arvindbhai Bhikhabhai, has crowded the road in the Ved Village”. Two policemen from Vardhari Outpost Police Station named: 1). Dharmendra Sinh (Head Constable) and 2) Manvsinh came to the Ved village without being in the police uniform and started to lathicharge on dalit men and women. Mr. GP Joshi pres- surised the police to lathicharge the dalit community. During lathicharge Mr. Dhar- mendrasinh Somsinh fell down on the road in dalit locality and injured his teeth. He called the Kothamba Police Station for more police force after he injured himself. Other Six policemen came to Ved village from Kothamba Police Station in police jeep and started the lathicharge on the Scheduled Caste community’s people in Ved village. Arvindbhai Ramabhai was later admitted in the Lunavada, Kotej Government Hospital. Three persons from Scheduled Caste community were illegally detained. Naren- drabhai, Ratnabahi Vankar and Ramabhai Dhudabhai Vankar were illegally arrested without any charge. A person from Scheduled Caste community named Ramanbhai Ratnabhai Vankar, was paraded naked and beaten by wooden stick in the Ved village by eight policemen. He was also paraded naked by the eight policemen in the village.
174 SHRC: SOCIAL AUDIT REPORT–III On the same day in police custody, four dalit youth were tortured and beaten by the police in Kothamba Police Station. Ramanbhai Ratnabhai was only in his underwear in the police custody for 16 hours. On the second day Kantibhai, his relative, gave clothes to Ramanbhai. Dharmendrasinh knew that dalits will come to the Kothamba Police Station for complaining about the police atrocities. So, in order to save himself, he lodged false police complaint against the four dalit youths in the Kothamba Police Station on June 10, 2012. The PSI, S.L. Gameti, Kothamba Police Station, refused to lodge the FIR against the police atrocities on Scheduled Caste peoples. People from Ved village contacted the Scheduled Castes community people for help. After they represented the case to the DIG, Vadodara Range, Shashikant Trivedi, and SSP, Sachin Badshah and other government authorities, police lodged the FIR against the Police Head Constable Dharmendrasinh Somsinh only. When Arvindbhai’s complaint was lodged against the policemen at that time the police added Section 333 of IPC against the dalit youths on the basis of false medical certificate from a private doctor (Anjali Dental Clinic). There were eight policemen who had beaten Raman- bhai Ratnabhai Vankar and paraded them naked in the Ved village. The policemen tortured the three dalit youth in the Kothamba Police Station and PSI denied lodging the FIR and hence that complaint was not lodged or investigated. Thereafter, when the police produced the dalit youths in front of the Magistrate at Lunavada, they complained to the judge about police torture. The Judicial Magistrate First Class (JMFC) Lunavada Judge took statement of Ramanbhai Ratnabhai and others, and sent them for medical treatment in Lunavada Kotej Government Hospital. Respondents’ failure to adequately protect the deceased and his family, timely prosecute the perpetrators of the deceased’s murder, adequately compensate the de- ceased’s family and rehabilitate the deceased’s community, violate the Respondents’ obligations under the Scheduled Castes and Scheduled Tribes (Prevention of Atroci- ties) Act, 1989 [hereinafter “Prevention of Atrocities Act”] read together with the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 [here- inafter “Prevention of Atrocities Rules”]. Respondents’ omissions also constitute viola- tions of human rights norms as defined by the National Human Rights Commission’s founding legislation, the Protection of Human Rights Act, 1993, Section 2(1) (d). Under the Prevention of Atrocities Act, Section 4, public servants are responsible for the enforcement of the provisions of the Act. The Act sets forth the punishment required for the atrocities committed in this case, which include interfering with the land rights of a member of a Scheduled Caste and murder of a member of a Scheduled Caste. [Section 3(1)(v) and 3(2)(v).] Under the Prevention of Atrocities Rules, the responsible public servants include the District deputy superintendent of police, the district superintendent of police, the district magistrate (in Gujarat, known as the Collector), the State Director General of Police, and the State Government (in this case, the Chief Secretary of the State). The deputy superintendent of police failed to “complete the investigation on top priority within thirty days,” as required by Rule 7(2) of the Prevention of Atrocities Rules. Similarly, the superintendent of police failed to (1) visit the place where the atrocity occurred and draw up a list of victims and their dependents entitled for relief; (2) ensure that the First Information Report (FIR) was
GUJARAT 175 registered and effective measures for apprehending the accused were taken; and (3) ap- point an investigation officer and deploy a police force in the area, alongside any other measures deemed proper and necessary, as required by Rule 12 (1, 2, and 3) of the Pre- vention of Atrocities Rules. The district magistrate, or the Collector in this case, also failed to “make arrangements for providing immediate relief in cash or in kind or both to the victims of atrocity, their family members and dependents,” as per Rule 12(4) of the Prevention of Atrocities Rules. Finally, the state government failed to fulfill its duty to ensure that the superintendent of police and district magistrate were enforcing the Prevention of Atrocities Act, as per Rule 3 of the Prevention of Atrocities Rules, and its duty to punish those public servants who willfully neglect to perform their duties under the Prevention of Atrocities Act. [Section 4]. Respondents’ omissions also violated the victims’ constitutionally guaranteed Right to Life by failing to protect the victims from criminal acts and promptly inves- tigate and prosecute the perpetrators of the atrocities committed against them. The Right to Life guaranteed by the Indian Constitution under Article 21 implies the “protection against arbitrary deprivation of life.” [International Covenant on Civil and Political Rights, General Comment 6: The right to life, para. 3.] Thus, in order to ensure the Right to Life, the State must prevent criminal acts, like murder, and fail- ing that, punish those who commit them. Moreover, the failure of the respondents to provide the victims with compensation and facilities for rehabilitation further violates their “right to life” as guaranteed by the Constitution. The Supreme Court of India has interpreted the “Right to Life” to include the Right to Education [J.P. Unnikrishnan v. State of Adhra Pradesh, AIR 1993 SC 2178: (1993) 1 SCC 645], Health [State of Punjab v. Mahinder Singh Chawla, AIR 1997 SC 1225: (1997) 2 SCC 83], and Shel- ter [U.P. Avas Avam Vikas Parishad v. Friends Co-Operative Housing Society Ltd., AIR 1996 SC 114, para. 7: 1995 Supp (3) SCC 456]. We wrote to the NHRC on June 23, 2012, but we have not yet got a response from them.
176 SHRC: SOCIAL AUDIT REPORT–III Witch Hunting Panchmahal District
Dahiben Vashrambai Vankar
Dahiben Vashrambai Vankar, was beaten up by Mawabhai Poojabhai Vankar (brother-in-law) on December 13, 2010. I was beaten up in a public junction. I I am a widow and have two sons. I was accused of witchcraft, but I suspect that the intent is property. That day I had set out for work. I work as a safai karamchari at a veterinary hospital in Dhamnod village, Panchmahals district. The accused came on a bike and forced me to sit on his bike and when I refused, he started beating me with a hockey stick. I was hit on the head so I started bleeding. An ambulance (108) came and took me to hospital. An onlooker agreed to escort me to the hospital. Medical reports (dated December 13, 2010) confirmed serious injury and I got 10-12 stitches on the head. Even after that, my brother-in-law verbally abused me at my house. When the accused was called for counseling at the SP office, he claimed that the victim is a witch and is eating his house and has eaten his brother. The FIR was filed on December 14, 2010, and booked the accused under IPC Section 504, 506(2), 325. Shehra Police took Mawabhai Parmar, age 48, resident of Gharola, Shehra, the accused in custody and informed the Civil Court, Shehra, on December 20, 2010. The hearing is currently going on in the court. The accused has bought all the witnesses to prevent them from testifying against him in the court.
GUJARAT 177 Rape Of A Minor Girl Panchmahal District Victim’s mother Salma deposed the case
Salma (Name changed)
n October 5, 2011, I took my daughter Salma (name changed) to the Refer- ral Hospital in Halol Taluka as she had severe stomach pain and her vaginal Oarea was swollen. The medical officer there immediately realised that this is a case of sexual assault and said that an FIR had to be lodged. Thus, the police came and took my statement. I gave my statements based on the events of the previous evening and what Salma had narrated the previous evening. My neighbour Pratapsingh who lives in my neighborhood with his wife and daughter had called Salma to his house in the afternoon of October 4. His wife was away at the river to wash clothes and he sent his daughter away with money to buy sweets and closed the door. He took off Salma’s salwar and also removed the towel he had wrapped around himself and then raped her. He then wiped off the blood from her legs and threatened her that if she said anything to anyone, he would beat her. Salma never told anyone anything until I discovered that something was wrong with her. She then told me that Pratapsingh put “something like a finger” in her body. This, the FIR recorded “something like a finger” was inserted and in turn, the police did not record it as 376 or rape. It was later that the counselor from Special Cell noted that a child of three years of age had not adequately developed sexual language to describe the male anatomy/ genitals. The police filed an FIR with the Section 354 of IPC which is only sexual harass- ment. By this time, several members of our community came to know and gathered at the hospital. The Special Cell was contacted by my friend who knew a certain vol- untary organisation called Anandi. A counselor from there immediately met me and Salma at Halol and then met the police. Since Salma had not passed urine due to the inflammation of her vaginal area, the referral hospital referred the case to Vadodara SSG Civil Hospital. The counselor accompanied her to the hospital to get the treat- ment started. Salma was then admitted to the Gynaecology Ward. The next day, the Counselor and Director of Anandi met the ASP of Halol to ex- plain the situation and he agreed with the demand and sent his PI to record a further statement from me. Based on this, Section 376 (Rape) and 511 (committing an act with the aim of grievous injury) were added. On this basis the accused was arrested. For almost a week, Salma and I were in the SSG hospital as Salma’s fever was not going down and she was then shifted to the paediatric ward and there all tests reported normal. The counselor felt that the fever may be due to the child’s fear of the accused.
178 SHRC: SOCIAL AUDIT REPORT–III On sharing this with the doctors, they recorded on the discharge card that Salma should be referred to a psychiatrist for child guidance. Since November 1, 2011 Salma and I had been going every week for child therapy. The purpose was to enable Salma to overcome the trauma and adjust to her normal routine. On the legal front, the Counselor and Director of Anandi were in constant touch with the ASP Halol on working out a strategy of recording the statement in a manner that it led to a strong evidence when the case came up for hearing. Simultaneously, a regular vigil was kept on the bail application at the district court. On the eve of the bail application hearing in the district court, the ASP arranged for video recording, a woman constable to be present and recording of the statement was to be done by the PI who had to be in plain (civil) clothes. The venue decided was the circuit house. However, the PI came in uniform and Salma did not reveal anything to him. Fortunately, the female constable who had arrived earlier and mingled with the child had asked Salma of the incident and Salma narrated everything to her in the absence of the PI. Thus her statement was recorded and produced at the time of the bail application along with the second additional statement given by myself. The bail application was rejected, in spite of the fact that the accused denied the incident out rightly, and tried to present that he was innocent and that he was being ‘framed’. The chargesheet is yet to be prepared by the police and submitted to the court.
GUJARAT 179 Kidnapping of a Minor Girl and Police Inaction Panchmahal District Written submission to the Jury
Radhaben
submit that I have six children, the eldest being Radhaben who has no education at all and is aged 16 years. She was kidnapped by Haribhai Bharatbhai residing I at Shaniyada, Taluqa Ghoghamba, District Panchmahal, on July 10, 2012. I had been desperately looking for my daughter in the neighboring villages and finally ap- proached Mahila Sahayata Kendra in the office of the district superintendent of police, who in turn, took some time to locate my daughter. However there were no effective measures taken and it was reliably learnt by the petitioner that no complaint or FIR was lodged at the police station. Thereafter, I approached another organisation called “Anandi” and a social worker from there approached the police station to lodge the complaint. But they were informed that the complaint had already been lodged on July 17, 2012. However on making enquiries on July 25, 2012 it was learnt that there was no such complaint lodged by the police and therefore on July 27, 2012 once again I approached the Godhra Police Station which registered the complaint, under Sections 363 and 366 of IPC, as C.R. No. I/165/2012 on July 27, 2012. I was approached by the Sarpanch of village Shaniyada and he wanted to offer some money which is the customary practice for settling the marriage. As per the tribal custom, in ordinary course whenever a boy and girl in the tribal community decide to get married, independent of their families, the parents of the boy have to offer “Davo” which is the bride price to be given to the parents of the girl, which is the reverse dowry system. Therefore the offer had come to me through the Sarpanch. Thus, I have reason to believe that my daughter Radhaben was kidnapped with a view to get married to her. I was not willing to get my daughter married off at such a tender age and therefore refused to accept the money offered to me and thus approached the High Court of Gujarat by way of a writ petition of habeas corpus for getting custody of my daughter from the boy Hirabhai Bharatbhai Bariya. The police have so far not informed me about the outcome of their efforts, if any, in tracing my daughter. The attitude of the police has so far been deplorable and no serious efforts appear to have been made to trace my daughter and investigating the matter properly.
180 SHRC: SOCIAL AUDIT REPORT–III Sexual Harassment At Workplace Vadodara District
Kinjalben M Patel
n October 26, 2012, I approached Chhani Police Station with my complaint of mental and sexual harassment at my workplace by Mr. Amit Dewani, OMD, M/s AH Dewbro International LLP and Mr. Surendra Sharma COO of the company. From October 26, 2012 to January 18, 2013 I have been following up regularly with Chhani Police Station pleading them to lodge a complaint of sexual assault and mental harassment at my office. I visited the Commissioner of Police’s office on January 18, 2013 to report non-cooperation by the police station following which Mr. Subhash Trivedi (DCP- Crime) gave necessary directions to Chhani Police Station. On January 18, 2013 when I visited the Chhani Police Station, the FIR was lodged by the police with a deliberate omission of the name of Mr. Amit Dewani, MD of M/s AH Dewbro International LLP, who had mentally tortured me in his office to the extent that I felt like committing suicide. None of my requests were considered by the respective policemen on duty to include the name of the MD who had abetted the act of the COO of the company- Mr Surendra Sharma who attempted sexual assault on me. This was proved by the fact that there was no action against Mr. Sharma by the management of the company, his approval to the illegal termination of my services, holding back my legitimate dues and threatening me and my family against our re- course to legal action. The above facts clearly makes Mr Amit Dewani liable as an abettor to the crime but the policemen denied booking him under appropriate law. This in turn implies that the policemen framed incorrect records with the sole intent of saving Mr Amit Dewani by not naming him in the FIR even after my repeated requests to do so. This amounts to false reporting in contradiction to my statement making the policemen concerned liable U/s 177/167/218 IPC. Also I refused to sign the report prepared by the policemen since it was not prepared as per the information provided by me as required by Para 24.5 of Punjab Police Rules. I was also denied the copy of report prepared by the policemen. Therefore, I submitted my complaint to the police station and got a copy acknowledged. On January 20, 2013, I sent my detailed complaint by fax addressed to the police commissioner requesting his intervention. The receipt of my complaint was confirmed by a return call to me from the commissioner’s office. Against my request in the FIR
GUJARAT 181 for not revealing my name and address to newspapers, I was disappointed to note that the details of the FIR lodged by me along with my name and address appeared in newspapers of January 20, 2013. I and the members of my family are undergoing severe mental stress by this new height of irresponsibility shown by the police depart- ment. I requested the commissioner to take departmental action against the concerned policemen in this regard. On January 24, 2013 upon receipt of phone call from Chhani Police Station for giving my statement, I visited the police station to present myself. The policemen asked me to sign the FIR containing the report prepared by them (Refer happenings of January 18, 2013 mentioned hereinabove) and take my copy. I refused to sign the same for my signing the FIR would have amounted to my endorsement to the false reporting by the policemen. On asking them for clarification on their not booking Mr Amit Dewani as an abettor to the crime, they informed me that they have already sub- mitted FIR to the magistrate and whatever I want may be done in the court only and they can’t do anything about it. On January 28, I met the police commissioner again and after hearing me, he instructed DCP AG Chauhan to look into my complaint and do the needful immediately. Later, Mr AG Chauhan assured me that within a span of three days, he would investigate the case and inform me in writing the action taken by the police department. On February 8, 2013 Mr. AG Chauhan called me at 11:45 am in response to my request to update me on the action taken by the police department on my complaint. Initially, he informed me that he had reviewed the complaint filed by me and that he did not find the name of Mr Amit Dewani in my complaint. Following this, Mr A. G. Chauhan & Mr Sindhi (ACP) declared that Mr Amit Dewani can’t be booked U/s 114 IPC since he was not present at the time of incident. To this, I requested them to book him under the appropriate sections of IPC as an abettor to the crime and also for his non compliance of the order of the Supreme Court of India in the case of Vishakha Vs. State of Rajasthan, for protecting women against the sexual harassment at the work place. Then, Mr. A. G. Chauhan asked me to write a further statement requesting the police to book Mr Amit Dewani in the case after investigating which they will book him subject to the satisfactory investigation. As per this I submitted my statement once again for necessary action against Mr. Amit Dewani. However, on visiting the Chhani Police station on February 16, 2013, I learnt that the police department has filed charge sheet in the court on February 8, 2013 itself without carrying out any further investigation as assured to me while taking my statement on the same date. From the above, it is quite evident that the police department had taken no action against the accused since in all the statements submitted by me from the date of inci- dent, I had repeatedly requested the police to book Mr Amit Dewani in the case, but at every stage, police department had asked me to merely submit statements without any firm action against him. I have not only been harassed at my work place but also by the respective police persons who have acted as mere spectators to the happenings against me for months together. Instead of supporting me in my struggle for justice, they have repeatedly told
182 SHRC: SOCIAL AUDIT REPORT–III me not to pursue this complaint as it will spoil my character and honor of my family. I had to explain to them that I have not done anything wrong and my family is sup- porting me in this struggle for justice but instead of performing their legal duty they continue to behave as per their patriarchal prejudices about sexual harassment.
Police Brutality Rajkot District Mahesh Pandya deposing the case
Mansukhbhai Rathore
n June 7, 2007, I wrote a letter to Mr. Sinha, the then Chairperson of the GSHRC, that on January 24, 2007, there was a photo story in Gujarat OSamachar, a local daily that Mansukhbhai Rathore was without any fault of his, beaten up by the police. The police claimed that the three people were riding a bike without helmets. A.P. Bharod and D.S. Parmar ASI put them in the lock up and beat them up and then finally admitted them in Rajkot hospital, Gondal city. On November 28, 2007, I got a response from Section Officer Gamara, GSHRC, who said that he had given a statement to the police and that he does not want to pursue the case and that is why the GSHRC is closing the case and informing me so. Moreover the GSHRC asked the police to approach the victim and ask whether he wants to file a case or not. The GSHRC has to take cognisance of this issue instead of warding it off like this. The victim is likely to be scared and traumatised with the beatings he already received and would obviously not want to jeopardise his life any further. The matter is closed. This order was copied to the SP.
GUJARAT 183 Police Atrocity Bhavnagar District Kadviben Maliya deposing the case
Kadviben Maliya and Others
am from Ghughai Village. We were protesting against Nirma Plant and as part of the protest, a people’s hearing was organised. Mahesh Pandya came to our vil- I lage and gave the information about people’s hearing and asked us to be a part of it. So we decided to go the next day morning to participate in the protest. That night, the Sarpanch (Village Head) came and threatened us saying if anyone of us joined the hearing, he would tear off our skin. In the morning, when I asked people to join us, they said Sarpanch has threaten them. I asked them what else the sarpanch would be able to do? And then, we went for it. During the hearing, women were asked whether they would like to say anything about the protest. That time, I told them that I would like to say few things but they caught my hand so tightly and did not allow me to move. And after that, they destroyed the whole set up of stage. After sometime we arranged a Maun Rally (Silent Rally) in our Mahuva Vil- lage. Member of Parliament Kanubhai Kalsaniya was also part of this rally. Around 10000 people were present. So many police officers from different places like Mahuva, Bhavnagar etc. were there but among them no female police was present. They started beating us, they tore our clothes, and walked over us. I was also beaten up. My hand broke during the assault and I was not even able to walk. Then 25 of us were admitted to the hospital. This was after they had detained us in the police station for two days. They said nothing has happened to us and there is no need to admit us in the hospi- tal. Many people came and requested them to send us to the hospital but they simply refused. After many repeated requests, they admitted us to the hospital for eight days. After that they filed a case against me and told me that I have to go to the Bhavnagar prison. So after being beaten up I went to jail. When I went to the Bhavnagar jail, a police officer asked what crime had I com- mitted. So I told him that I had not committed any crime and that we were fighting for our rights and if we will not fight for it then our land will be taken away. To this, he started laughing. Then we went to file an FIR but they refused to register it. So, 300 of us went to file the petition in the court but they did not allow us to go inside. I requested them, stating that we had been sitting outside since morning in this sun so we should be allowed inside to file a petition, but in vain. Still, we struggled to go inside and at last we submitted the petition. One policeman asked for me? So I replied
184 SHRC: SOCIAL AUDIT REPORT–III that I am Kadvi and asked him why he referred to me so rudely and inappropriately. To this, he replied that he was not referring to me but to some other person. I told him he did not have the right to talk inappropriately about anyone. I threatened him and convinced the others to write an application for this and all three hundred of us should sign it and send it to Gandhinagar. So he started apologising. No one listens to women. Recently there was a case where a 10 year old was sleeping alone and her mother had gone to work. She was raped by her drunk uncle and kept there for four hours. And after drinking alcohol, her uncle tried to feed her alcohol. He bit her face and nose. Ripped her clothes. So when her mother went to file an FIR, she was told that there is no need for FIR and nothing has happened. She told them that her condition is such that she is not even able to sit or eat or anything but still they refused. They did not file the FIR until four days after. After that, all women from the Mahila Mandal went to file the FIR and told Mundariya Sir and he registered the FIR. It came in the newspaper on the fifth day. The situation is such that police does not listen to women and there is a need to do something about it.
GUJARAT 185 EXPERT comments Gagan Sethi Human Rights Defender
irst I would like to congratulate the organisers of the IPT. This programme of HRLN is the one, which I evaluated few years back. This is the one pro- Fgramme, which records history. The main importance of this process is that it records the history and documents it from the perspective of civil society. At present change may or may not come from this document but after some years when one would like to know about how was the situation of human rights in India then these documents of HRLN will be referred. Justice (retd.) H. Suresh has helped us a lot in this programme. To talk about human rights in Gujarat in front of Mr. Girish is negli- gible as he is a very experienced person. I would like to talk about two things. First I disagree with Mr. Harsh Dobhal, Director, HRLN, that human rights commission and Protection of Human Rights Act (PHRA), 1993 is not for common people but it has become for the common people because the normal system of justice delivery has failed. Otherwise the PHRA has a very limited scope of seeing human rights violation as defined by the Act. It has a purpose of setting up a State Human Rights Commission and District Human Rights Court; therefore it was meant to go right up to the district level to be able to spot hu- man rights violation as per the definition of human rights and take them up with the state believing that the state is the biggest violator and perpetrator of human rights. To run an institute and having expectations from institution are two different things. So there should be a proper way to look at it. And therefore the good ques- tion will be- in the given circumstances, is the present Act, in which these SHRCs are formed, adequate to serve the purpose that they are entitled to? And I think the answer is big no. We should see that why district human rights courts are not established till now. It’s not like that one atrocity took place and all the dalit activists working in the area file an application to district superintendent of police along with SHRC, NHRC, SC/ST commission. It means that one incident takes place then people write even to the Prime Minister. So for one incident six different departments have to start working and at the end six institutions will work for every incident and I think that is a mockery of justice. I am bringing this because until we people from NGO are not clear about what we expect and want from which institution till then we will be fighting for the wrong cause. In the year 2001, I was involved with the NHRC as one of the monitors when earthquake took place here in Gujarat. Since 2002 to the time GSHRC was consti- tuted, I was the member of the monitoring committee. And when SHRC was estab-
GUJARAT 187 lished automatically this committee was abolished stating that now GSHRC is there and there is no need for this committee. The politics was that one independent body was monitoring human rights so it became important for Gujarat to bring its own GSHRC so that GSHRC can take some cases suo motu and because of that they can keep NHRC out and away from their work. Because there is this understanding that if GSHRC has picked up one issue then the NHRC will not take it as its better until one body is working on it another should not work on it. I am saying this because birth of SHRC is birthmark against the NHRC. The Government of Gujarat wanted to cut the wings of NHRC that is why they established the GSHRC. There are three main points regarding human rights in Gujarat, which are politi- cal - civil rights, socio-economic rights and environment rights. Extortion of dalits was one of the points under political-civil rights and after 2002 whatever happened with Muslims the issue of citizenship came up. They were told that they were second-class citizens, which means they were ghettoised. And the track report of subjugation of political and civil rights on this community is for all to see. And GSHRC again and again did not take up the cases of political and civil rights. Mostly they have taken the cases of socio-economic rights and women’s rights. The main issue, on which GSHRC should work out which comes under political – civil rights is that of encounter killing. Frequently encounters are taking place. There is no independent monitoring of police. I would suggest IPT to note this particular issue that encounter killing in the Gujarat are on the increase. Almost every district and particularly districts having high population of Muslims are reporting arrests, arbitrary arrests and encounter killings where the Muslims are not even coming to report. The fear is such that Muslim people are not even coming to report in the police station and due to that, the reporting of such incidences is very low. The NHRC always gives the report on the issue of fair trial and prisoners while what Gujarat made its prisoners to do that we can see from the following figures. If we look at it then clearly, the issue of human rights comes up and the SHRC is silent about it. We always talk about prisoners so if we look at the figure of prisoners in prisons of Gujarat then the percentage is in reverse from the total population. Muslim population is 12 percent in Gujarat but about 36 percent Muslims are in the jail while 16 percent dalits are in jail. These figures itself say something and in terms of civil and political rights we say there is something wrong and SHRC is not applying its mind to that aspect. In socio–economic and cultural rights, NGOs in Gujarat are far more active. In Gujarat more importance is given to economic rights. Whether it is Right to Food, Right to Health, Right to Education there are many groups working on it, bringing out the violation very frequently but the SHRC is refusing to take cognisance or suo motu action, both of which are in their capacity. Another biggest issue of human rights is environmental rights, which is linked with land and industrialisation. I have not seen a single case in which action has been taken by the SHRC on environmental rights and pollution because it will go against industrial program of Gujarat. Forest, Land, Water, Labour Rights are linked with socio-economic rights.
188 SHRC: SOCIAL AUDIT REPORT–III In cultural rights many issues are coming up. If we see in Panchmahals, Sabarkan- tha, issues are coming up regarding the eating habit of people, as you are not allowed to eat meat, beef in the name of vegetarianism. This whole point comes under human rights and these are the issues of cultural rights on which SHRC is not doing anything. I would like to raise the critical issue of institutional mechanism. If we want to see whether SHRC is working properly or not then there is an international formula to analyse it. So we don’t have to build anything new. It is known as CAR principle. Any human rights organisation which is working on preserving these rights then first thing come is “C” that is Capability of the institute. If you judge the capability of SHRC in terms of how many cases on how many people? Are there enough people, which should be there? How is the quality of these people? What was the selection process? If we see all these things together then we would realise that on the capability front of SHRC we are at minus nine. ‘A’ stands for Accountability. All human rights institutions are not only account- able to government but also to the public and media. How many times does the GSHRC call media and tell them to ask about what they are doing? Where do we spend our budget? How much money we spend per case? All these question were not asked by any tribunal nor they took it as suo motu. It is the duty of human rights institution that they become accountable and show that they are accountable. In this also SHRC has failed miserably. In Gujarat instead of having a chief minister we have a managing director. But at least the managing director should know that if one wants to know the accountability then the evaluation of that institution should be done. So does the public evaluation takes place of SHRC? The last is ’R’ which means Responsibility. How many suo motu cases did the SHRC take up? Of what type? On which issue? And of which community? If we evalu- ate it then we will get the marks of minus 20. So according to the total marks given to SHRC by ‘CAR’ principle comparing it with many others in India as well as the world we would find that the institution better not exist. In my case as a person who demanded human rights commission I would prefer the NHRC to play a more proactive role. And unless we have sweeping changes structurally in the whole Protection of Human Rights Act, 1993, the situation will not change.
GUJARAT 189 Trupti Shah Human Rights Defender
was asked as an organisation what has been our experience with the GSHRC and I asked them whether such a thing exists for real? If the GSHRC was standing/ I talking for human rights, would this be the situation in Gujarat as it is now? Even the case of Kinjal that she deposed, she was unable to give full details regard- ing what happened. When she went to complain regarding the sexual harassment at her workplace to the police, the police, in turn, asked her, which Act is to be applied? As if sexual harassment is not covered under any of the Indian laws and as if they are unaware of the Vishakha Guidelines. In the last 7-8 months, 12 cases have been brought to our notice regarding domestic violence and sexual harassment in which all of them were told by the police not to pursue the matter and one of the policemen has shamelessly said that if he beat his own wife, should she come and file an FIR as well? Firstly, the police do not entertain cases of domestic violence and not even register it and in case of Kinjal, she was told that it would question her character if she com- plained about it, no one will marry her. So what is the responsibility and role of the police – is it to uphold the norms of patriarchy or to implement the laws of the land? When I went on behalf of Kinjal, I was asked why I instigate women to file com- plaints on such issues! So what they are trying to imply is that the role of the different groups is to instigate people while this girl was struggling with the support of her fam- ily to get her complaint filed for three months. So why do we approach the GSHRC when they would be sending these very policemen for inquiry! Cases involving violations against women are on an increase in Gujarat but it doesn’t show on the crime records because the police are told not to record the crimes against women as they want to prove that it is safe for women and no such crimes take place in the state. In another case, the girl used to take tuition classes and where she was harassed by a boy in that batch and when the complaint went to the police, they said that it was their duty to make them reach a compromise so that the girl’s character is not as- sassinated. The commissioner of police himself proudly said that he will help them in reaching a compromise in person. And how did they manage this compromise? They went to the girl’s house at 1:30 am in the night to get the statement and woke the neighbours up and asked them for details, so then why and how will the girl now reg- ister her complaint? She will obviously think it to be a crime to register her complaint. Hence such a compromise is made and the complaint is not registered. The result is that the girl leaves her tuition class two months prior to her 10th board examination
190 SHRC: SOCIAL AUDIT REPORT–III while the accused boy continues to go to the same center. Such is the treatment that the Gujarat Police give to the women in this state. It is not a surprise that the female ratio is low 4,65,000 girls are less as compared to boys in the age group of 0-6 years in Gujarat. Howsoever, the state government may try to hide data of crime against women, this particular ratio and these cases are a clear reflection of how the society in Gujarat treats their women. Parents do not find the state safe for their daughters, economic development is happening in such a way that women’s labour is being uti- lised very limitedly and social insecurity is increasing for women. If GSHRC cannot see such violations, then what will we do by complaining to such a body? Why should we waste our time? We as groups in Gujarat hence feel that this is a futile body, which has been made and has to be improved from its very foundations.
GUJARAT 191 Prasad Chacko Human Rights Defender
n Ahmedabad and other districts of Gujarat, rampant displacement is taking place. But this is not considered as displacement, but instead as encroachment. IDisplacement which is taking place is unjust and carried out in a criminal manner. Displacement is happening all over the country, but in Gujarat it is happening to an adverse extent- 2000 people in Ahmedabad- from Sabarmati river front were evicted and shifted to the Piplaj area which is uninhabitable. They were not given any relief for food, shelter, sanitation etc. This kind of displacement is happening not only in Ahmedabad but also in other places in Gujarat since many years but they happened in small scales- like 50-70 families. But this was huge. These people were just given INR 5000 and a plot of land. At that point only relief work could have been carried out – which was undertaken by Center for Development and Save the Children. Peo- ple did not even have a proper shelter in that harsh cold weather. They were living under plastic sheets. The problem is that these are not even considered as human rights violations. This is one scene in Gujarat that one can see on a regular basis. In 1970s many judgements on displacement specified that basic amenities and shelter be provided to the people displaced but now it is only seen as encroachment. If you go to Piplaj, those 2000 families are not there anymore- most of them have just vanished and we do not know where. Only those people who were in the rehabilitation list on paper are those who contacted officials from the Sabarmati riverfront. Still, at present there are 400 children who are there in Piplaj and we filed an application in NCPCR and they made a school room out of fiber material similar to those used in syntax water tanks. GSHRC does not view it as human rights violation, which I strongly feel, should be considered as one. Not one human rights body took suo-motu cognisance of such a humanitarian tragedy. In the year 2007, from the Mahakali area when people were displaced, Jan Sang- harsh Manch took the case in which particular guidelines were given regarding the provisions that ought to be given to the people displaced but no one bothered to implement it in this case. The second issue that I would like to talk about is internal displacement and formation of colonies post-2002 riots. Places like Juhapura are called mini-Pakistan because of the existence of such colonies. No relief was given to the people who were displaced post-2002. It was only after so many efforts that Islamic Relief Committee
192 SHRC: SOCIAL AUDIT REPORT–III gave relief to a few people, which was alone not enough to restart their lives. One victim in Naroda Patia was shot in his back and is unable to walk and at that time he was given an amount as compensation but he is displaced and the place given for him to stay by the IRF does not have certain tenure for staying. Can HRCs have a clear code, which are considered as human rights violations? The third thing I wanted to emphasise on was social and economic rights. 48 per- cent children are mal-nourished, 50-55 percent women are anaemic and they are from the marginalised sections of the society- dalit, adivasi and Muslim communities. This again is not seen as human rights violations. How do we ensure that these extreme issues are included by the HRCs and this is the direction in which we need to work? As activists how do we ensure that these issues are at least agitated in the commis- sion and create an environment in which HRCs have to take this kind of issue seriously and I think that is the direction in which we should generate the strategy.
GUJARAT 193 Adv. S. H. Iyer Senior Human Rights Lawyer
would not talk about cases, as already there are many cases. Now we need to talk about what is to be done which is more important. All this is history and it’s I not enough to understand history but it’s important to change the history. And today we have gathered here to change the history. Today we will discuss about how shall we build the new history? In the year 1993 when this Protection of Human Rights Act was formed it wasn’t the government’s will. It was not built voluntarily. International pressure was built on the government as we were one of the signatories, so the government had to do it. Government does not want to give human rights to anyone. According to them there should be such word like human rights. The provision to built HRC is under PHR Act, 1993. Though the government made the Act but still they were resistant to make any commission where people can put their voice so people protested against it and it resulted in establishment of NHRC. The SHRC were also established in various states but Government of Gujarat denied to do it and said we don’t believe in this kind of commission. According to Narendra Modi, he is the sole power of the state; he himself is judiciary and the legis- lature. Whatever he says will be final. The SHRC was not established for many years in Gujarat; after too much pressure from central government, it led to the establishment of GSHRC in 2006. In that also, the CM Modi said he will decide the people who could be and who could not be part of the commission. Justice Sinha was appointed and only paper work was done. And there was a time when there was no chairperson. This is the system and we have to work in this system only. We will have to fight against this system; people, officer and the State for our human rights and we should snatch it rather than begging for it. We will have to use this commission positively and aggressively. We can come up together and fight aggressively against it; only then change will come and history will change. It has been our experience that if any protest is done systematically and strategically then positive result does come in. If we see from the year 2002 that time Muslim community was named as terror- ist; it was said that every terrorist is Muslim and every Muslim is terrorist. We have to fight against it. In Godhra train carnage, POTA was used and the court agreed after the protest that it was not an act of terrorism, so then the label on the Muslim com- munity of being a terrorist was removed. When POTA was enacted it has only been used against Muslims since. They arrested many Muslims under the POTA. So we fought against it and it resulted in the removal of this Act and not only this but after
194 SHRC: SOCIAL AUDIT REPORT–III this protest no arrest was made under the POTA. Third phase, that of fake encounter, has come into existence since. In this also Muslims are being targeted and it is seen that they arrest a Muslim and kill him/her then declare that he/she tried to kill Narendra Modi, and that s/he is from Lashkar- e-Toiba etc. There are number of cases like Sadik Jamal case, Ishrat Jahan’s case, Sohrabuddin case, Tulsi Prajapati case. So we fought against it also. Police officers D.G. Vanzara, Pandya and Amin who were police commissioner and IPS officers and today due to our protest and fight they are in jail and after 2007 no fake encounter has been carried out. So what I try to say is that the GSHRC is built to not to do anything, it is not built to give you justice, this skeleton organisation is built to give the salary to people like Bhatt. All the commissions, which are made, are established to give the salary to these people rather than giving any judgement or decision. There are two types of people, ‘have’ and ‘have not’, and we are from ‘have not’ section. We have to fight against people who have the power and resources. Since morning we are talking about what are the issues in SHRC, we talked about how we file application in SHRC and it gave the instruction to conduct an inquiry to the same department or person who has violated the human rights and after that closed the case. So what have we done after it? We did not do anything. We ourselves are responsible to keep this organisation inactive. We will have to fight against this organisation. We can go to high court, as there is not enough staff in GSHRC, even we can fight for salary of G. M. Bhatt as he will not be able to deliver the justice until he receive the salary. We should not leave aside any small issues but we should carry forward it and we might have to go to high court and challenge the order and findings of GSHRC also. Only then GSHRC will be activated as they know we won’t do anything further after we give the order. We will have to change their thinking and show them that we could fight against them and we will do it. One person cannot fight alone we will have to come together and collectively & systematically fight against it then only we will be able to activate this system. Right to shelter is one of the basic human rights which we are already being told but we do not fight for it systematically. Instead of going to high court every time if we get all the documents together and present it to GSHRC then it has the right according to law to give order. We can ask through GSHRC for the slum development scheme, which is established by Government of Gujarat. How to make this SHRC effective is one question we need to address so that it plays its role effectively. We should establish one committee/body consisting of lawyers where all the application related to SHRC goes and who guides how to write petition and other legal issue so the process goes smoothly and follow-up can be done properly. This will help to activate GSHRC and will bring good result.
GUJARAT 195 Jahnvi Andharia Human Rights Defender and Founder Director ANANDI
s it was kept open to speak on the issues I have not prepared anything in particular. I was observing the whole process through the morning and I ob- Aserved from women’s perspective that there were few cases of women, which were presented by men. Many times women’s rights and human rights get divided which we need to keep in focus. Women’s human rights get violated at four different ways/places. First is at home in the form of domestic violence. Many cases of it have not come here today as Act is established for it. Today the case of witch hunting was presented which is very much prevalent as a tradition in adivasi culture and used against women if family doesn’t want to give share of property to her. After too much effort when Domestic Violence Act was established it resulted in that no one consider it as a violation of human rights and say it’s a failure of system. So issues of violation of human rights of women are not being addressed instead of that you say that we do recognise that your rights are violated but we can’t do anything, as we don’t have sufficient staff. So we as an activist forget about the real issue and our energy gets wasted in improving the system. As a community also, violence against women takes place such as tribal women, dalit women, Muslim women, women engaged in manual scavenging. Though today cases of tribal women have not come but the way their rights are violated by forest officer is a very serious issue. And to file complaint and get justice one has to mobilise the whole community and put lots of efforts. Now rape cases and sexual assault cases of minor girls are taking place at large level. Though they were present earlier too but now due to the efforts of media it is coming in news and being recognised also. At the workplace also violation of women’s human rights are taking place. It’s a very complex issue and one will have to narrow it down and look at it as a human rights matter. Institution of laws such as police station and court is another place where wom- en’s rights are violated. Even the way cases of women are being discussed and justice is given is also another issue. The way police officers have the mindset that they being police they are immune from law and they can do anything they want. Even at the level of possessing authority or power, males are present. When police goes to arrest women, the female police is absent but when one woman comes to file a FIR she is being told that female police is not here so come later. It’s a peculiarity in Gujarat after 2002 riots, that to be a part of NGO means per- ceived as new untouchables. Civil society is not seen as a democratic system. There is
196 SHRC: SOCIAL AUDIT REPORT–III no place for people literate like me working in NGO or people like Kadavi Ben work- ing as a group. So it means you don’t only deny women’s rights but also their strength to struggle. As in the case of Kinjal she is not the part of any NGO but because she is educated and has support of family she is fighting for her rights but the institutions are denying it and putting the blame that NGOs are instigating it. Various groups are fighting for many different rights. So if we ask for different rights such as women’s rights, children’s rights, right to education, right to food than what is the definition of human rights? We are dividing human rights in different types of rights and it results in becoming part of different department. So instead of focusing on how to activate GSHRC effectively we are stuck in fighting for various rights. We have used SHRC very less because we feel that ultimately the same culprits carry out process of investigation so your mind doesn’t go that way. So in this type of environ- ment there is a question at our role also.
GUJARAT 197 Hiren Gandhi Human Rights Defender
asically I am a cultural activist but since many years I am taking interest in human rights because as a concerned activist whichever experience I have had Bwith Government of Gujarat and learning which I had from it has led me towards human rights. I have few questions related to Gujarat and nation. If we look at the situation particularly in Gujarat then situation of human rights after 80s have changed in during 90s and the way it has changed, is also a concern. When I talked with my friends we discussed that I see a car with red light on celebration of 10th December of GSHRC other than that no sign of it is seen. The GSHRC people are not there and people don’t go to them also. Even with the NHRC when we did a presentation to NHRC and Justice Verma for the cases of 2002 many things came up. But again NHRC also doesn’t have much power with them. Cases like that of Narmada Bachao Andolan and the issues of migration are taking place in various rural and urban places but we don’t perceive them as human rights issue. And the sensitivity towards these people is dying particularly in Gujarat and I feel the reason behind it is ideological hegemony of Gujarat that has build up in civil society. Civil society, instead of seeing the violation of human rights, is taking the pride of it thinking it as a good development. It is very dangerous as issues of poor, minority, tribal, dalit, women, and children are increasing at an alarming rate. After earthquake the way the development of Kutch people is done by government and the current situation of them is very much questionable. In the name of rehabilitation and development violation of human rights are carried out by government. Looking to the new economic policy and government’s attitude it seems there is a long way to go for human rights in Gujarat. We will have to continue our fights for human rights.
198 SHRC: SOCIAL AUDIT REPORT–III Rohit Prajapati Human Rights Defender
will talk about the points, which have been left out. These are in the forms of reports. As Prasad Chacko (the expert speaker at the IPT) talked about internally I displaced people a detailed report is there with SHRC about it. This report consists of details about the problems and issues but nothing is being done. There are two reports about which GSHRC have not thought about. One report is of Shabri Kund, which is directly linked to the CEO (aka the Chief Minister) of Gujarat. It’s about incidence taking place in Dangs and GSHRC have not done anything about it but many things about it are already published in detail. Third report is on the general situation of Gujarat in which some figures of Human Development Index is given by the government which is also a human rights violation as GSHRC is saying in report that all is well but in reality all is wrong. There are two more issues, about dalits and tribals. Dalits have land in their name but they are not able to do anything on it. Government has given land to dalits but not to all and there is a report on land distribution, which is with GSHRC also. While case is different with tribals as dalits have land in their name but cannot do farming on it while on the land where tribals are doing farming is not on their name. It’s an issue of Forest Rights Act. There is a report on FRA prepared by Adivasi Mahasabha, which consist of 45 groups, is also given to GSHRC. PIL is also filed in high court regard- ing it. All the figures given in this report are official and there is no dispute about this figure but still government is not ready to do anything about it and even GSHRC is not ready to do anything. So what I am trying to say is that GSHRC should read before writing all is well in report. They should not become the advocate of government and if they want to say then they should just say about how many cases came to them, what have they done about it or what are they doing for human rights in Gujarat? But instead of that, in their annual report they are praising the government and CEO of Gujarat and further saying that there is no need to change him. All these reports are given to GSHRC but still they are ignorant about it.
GUJARAT 199 Chapter-III Jury Report
200 SHRC: SOCIAL AUDIT REPORT–III BACKGROUND
Human Rights Law Network in collaboration with its partner organisations, con- ducted an Independent People’s Tribunal (IPT) on March 17, 2013 at Behavioural Science Center (St. Xavier’s College), Ahmedabad, on the functioning of Gujarat State Human Rights Commission (GSHRC). The aim of this exercise was to suggest meas- ures towards streamlining and strengthening the GSHRC to function more efficiently and effectively so that it can perform its statutory role as an effective mechanism of justice delivery. Human rights Commissions (HRCs) were constituted and given the shape of statutory bodies in order to ensure quick and affordable justice to the poor and de- prived classes of the society. Since the judicial processes in the country have become too costly and time consuming, it is almost impossible for the poor to secure timely justice at affordable costs. So, it was expected that HRCs will be able to remedy this situation with their prompt and equitable function. But in Gujarat, this does not seem to have happened. It is a matter of great concern that the SHRC in Gujarat has, for various reasons, not been functioning in the spirit and for the purpose for which this statutory body was constituted. The plight of pending cases before the GSHRC, some of which were put up before the jury during the IPT proves beyond doubt that the GSHRC is almost a crippled body, incapacitated by government neglect to perform its functions properly. Thus, an invitation was sent to the Gujarat SHRC to attend the IPT to express their point of view about the functioning of the commission but nobody from the commission turned up. There is a need for realisation among all that it (the commis- sion) is an important agency that can assist in an effective complaint redressal as an important watchdog. • A number of people who have gone with their complaints to the commission deposed before a jury panel comprising: • Justice Hosbet Suresh (Retd. Judge, Bombay High Court) • Adv. Girish Patel (Senior Advocate, Gujarat High Court and Human Rights Activist) • Urvish Kothari (Senior Journalist) • Professor J.S. Bandukwala (President, PUCL Gujarat) • Meera Velayudhan (Senior Political Analyst, Centre for Environment and Social Concerns)
GUJARAT 201 Eighteen cases were put up before the jury members out of whom a few cases were those that were not sent to the Gujarat State Human Rights Commission. It was quite noticeable with the cases that were put before the jury panel that in the com- plaints against the police, the commission invariably refers the complaints back to the police only, and consequently on the basis of the report submitted by the police, the complaints are deemed to be false and thus disposed of. Thus, there is a clear conflict of interest here as invariably the same police officer ends up either investigating or influencing the complaint against whom it was made in the first place. So, this faulty process of seeking reports from the respective government entities in the complaints against them adversely affects the justice delivery mechanism of the commission. The cases put up before the jury in the IPT demonstrates that violation of human rights of dalits, religious minorities and other weaker sections of the society continue unabated. The case of atrocities on dalits by dominant and economically influential people shows that the SHRC in Gujarat has failed to perform its mandatory function. Even the functionaries (commission member) of the commission admitted that there are severe shortcomings which hamper the commission’s functioning. The commis- sion has been requesting the government over the years to provide necessary physical and financial facilities, in order to achieve a working status, but it seemed to fallen on deaf ears as no steps have been taken by the government to improve the requisite facilities. As majority of human rights violations cases coming to the commission are against the government itself, it is therefore quite obvious that the state government’s been keeping the commission in a crippled state so that the large number of human rights violations by state agencies do not come to light and the government is saved of embarrassment. It is therefore necessary that state human rights commissions be made financially independent of the control of government.
OBSERVATIONs
• The majority of the cases pertained to allegations of mishandling of cases of human rights abuses by the police and atrocities against dalits and minorities. • One thing come out very clearly that out of all these cases of human rights violation not a single case is such in which SHRC had played an important role. So a basic question arises: what is the role of SHRC and why was it established? • At one side there is a state terrorism where government of Gujarat itself is violating basic political civil rights through misuse of police, illegal deten- tion, abuse of POTA, custodial violence. Second, is a social terrorism where dalits, women and minorities are attacked and the dominant group violates the human rights of the oppressed. It is the duty of government to protect and respect these people and their human rights. Wherever these types of extortion are carried out there we can say that state has failed to protect their human rights. Third, environmental terrorism/ developmental terror- ism is another factor. In the name of development, human rights are being
202 SHRC: SOCIAL AUDIT REPORT–III violated in Gujarat and many cases of that came today. Slum dwellers’ human rights are violated. In Sabarmati riverfront project where 14,000 to 15,000 families were residing are being displaced under the name of development out of them 12,000 families’ rehabilitation was done after a lots of struggle and fight but still there are 2,000 families about which Prasad (expert) has shared they are very helpless. If we talk about Kankaria Lake then people residing around it are displaced. At present, we have a case of Aslali village where tribal and backward people who were residing there since 30 years are displaced for the development of lake. Many cases of this type are there. So demolition of slums in the name of beautification of city and development of the city is being carried out. • The other loophole is that the SHRC will not interfere or take any kind of ac- tion in the same jurisdiction if other body or commission is inquiring it too. So if no department, body or commission is inquiring and if it’s a clear case of violence then only they will take action and compensation will be given to the victim of human rights violation. If there is any complaint against the army, then SHRC cannot do anything about it. Any human rights viola- tion done by army cannot be looked into. Places like Manipur and Jammu & Kashmir where the Armed Forces Special Powers Act is in force, human rights commission cannot do anything about it. The process of SHRC is that they cannot even inquire, they can only ask for the report and that is also from head of Army to file it. • There were serious allegations of collusion of police authorities with the ac- cused in several cases. • Impartiality of police authorities was questionable in many of the cases dur- ing investigation. • Glaring instances of lack of sensitivity on the part of the officials was quite visible while dealing with serious human rights violation cases. • Even in serious violation cases like custodial death, murder, rape, sexual har- assment and so on, the apathetic attitude of the commission is quite discon- certing.
RECOMMENDATIONs
So there are two ways to activate the Gujarat SHRC. One is that wherever the SHRC fails to use its power, one has to file an application in High court and here, the people’s struggle is very important. It is important to make the people aware about SHRC and why it is built for them and further how it is not working. Second thing is to think about how to empower this SHRC? They say they have their own limitation. The powers which are given to them are used minimum when they can work very much effectively. At last Human Rights Commission depends on people’s awareness. How to stretch the power is a creative demand. • The commission should have its own independent agency with sufficient number of personnel.
GUJARAT 203 • There should be a one-time review of all the cases pending before the com- mission for the past five years. • The commission should take active help from the civil society organisations and individuals working on issues related to the human rights, in order to sort out all the pending cases in a time bound programme. • It is a very important function of the commission to encourage CSOs work- ing for the welfare of dalits, minorities, women, children and other weaker sections of the society. The commission should promote and facilitate the work of such organisations. • All cases of land grabbing of dalit atrocities, minority targeted violence, cus- todial deaths and child abuse should be taken by the commission on priority. The commission should make public all the decisions taken by it and should also make its presence felt through the media. • All cases of human rights violations reaching the commission either directly by the public or through various agencies including the NHRC should be duly given cognizance. Each case should be acknowledged in writing and a time period should be fixed for its disposal. • A representative of the commission should attend all public hearings, confer- ence and seminar held by CSOs and other organisations for the conservation and protection of human rights. • The commission should put pressure on government departments to take appropriate action on the recommendations made by it. The recommenda- tions of the commission cannot and should not be relegated to a waste paper basket. The commission should forcefully pursue its recommendations and bring any inaction by the government to light through print and electronic media. • One of the pretexts often extended by the state human rights commission for its inaction in matters concerning violation of human rights is that the matter has been referred to a court of law and therefore it is sub judice. The spirit of the law as enshrined in Section 12 (b) of PHRA, 1993, gives the commis- sion sufficient power to intervene in any proceeding involving any allegation of violation of human rights pending before the court, with the approval of such courts. It needs to be asked, in how many cases did they exercise this power, and the answer is zero. It is, therefore, essential that the commission, must, in all important cases, intervene in the matter and should not hesitate to approach courts to make its presence worthwhile. • Even if a complainant makes a representation or sends the complaint cop- ies to several administrative, constitutional or statutory bodies, the SHRC should not wait for a query or a reply from any of such institutions to whom it is addressed. The SHRC should immediately take action on such issues raised if they fall within their jurisdiction. • The institutional mechanisms envisaged in the PHRA, 1993, should be cre- ated in the state of Gujarat; special attention should be paid to the creation of human rights courts in every district.
204 SHRC: SOCIAL AUDIT REPORT–III • The state human rights commission must take all such cases promptly and seriously in which there are complaints against state agencies, such as police or administrative department, for harassing witnesses or framing false cases against persons fighting for the conservation and protection of human rights. • In all such cases in which the police and prosecution does not invoke the provisions of special Acts such as the SC/ST (Prevention of Atrocities) Act or the Juvenile Justice Act etc., and end up putting a chargesheet only under substantive laws, the SHRC should intervene in the courts, requesting the judiciary to take cognizance of the matter under specific laws too. The SHRC should particularly be very vigilant about the conservation of human rights in all custodial and other institutions like prison, juvenile justice homes and protective homes for women and such institutions like those meant for per- sons with disabilities etc. One of the most effective methods of ensuring this will be an unplanned, sudden and surprise visits of these institutions by the members of the commission to see that human rights are not being violated and that proper facilities are provided, and accordingly make recommenda- tions for improving the situation of these institutions. • The government should amend the PHRA, 1993, according to recommen- dation given by the committee constituted by the NHRC (and which were excluded in the 2006 amendment of the Act) and headed by Justice Ahmadi, to empower human rights commissions and make it effective so as to be able to perform its role as guardian of human rights in the country. • Human Rights Commission should be appointed in every state, and NHRC should persuade the respective state governments, who have not appointed a SHRC so far, to do so. • The members of the human rights commission should be appointed strictly as per procedure given in the Act. Apart from the chief justice of a high court who shall be the chairperson, a judge of a high court or a district judge of the same state, and one other member should be appointed from amongst persons having knowledge of or experience in matters relating to human rights - as per Section 21 (2) of the Act. As far as possible, police officers should not be appointed as members. The chairperson and members of the commission should be sent for training, with a view to sensitise them and how to best implement the PHRA, 1993, for protecting human rights and giving relief to the victims, and also for punishing the perpetrators. Vacancy in the commission, if any, should be filled up immediately. The person who has been appointed should be available and willing to work with the com- mission immediately. • All the respective officers i.e. Secretary, IGP, and other staffs and investigating agency of the commission should be appointed along with the commission, itself, as required by Section 27 of PHRA, 1993. • The state government should provide sufficient budget for the commission to utilise its services properly for fulfilling the purposes of the Act, as required by Section 33 of the PHRA, 1993.
GUJARAT 205 • The commission should regularly prepare and submit annual reports to the state government, or special reports in particular matters. Also, the state gov- ernment shall cause the annual and special reports of the state commission, to be laid before state legislature, along with a memorandum of action taken, or proposed to be taken on recommendation of the state commission, and the reasons for the non-acceptance of the recommendations, if any, as provided by Section 28 of PHRA, 1993. • In case the state government does not carry on the instructions or directions given by the state commissions, the commission should not hesitate in ap- proaching the state high court, for causing writ of mandamus against the government to carry on the directions. • The state commission should spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of the rights through publications, media, seminars etc as envis- aged in Section 12 of the Act. • In case the complaint is against the police, the commission should get a reply thereon, but should not just rely on the police report only and close the case. Instead, it should utilize its own investigating agency to verify the original case. • For the purpose of providing speedy trial, of offences arising out of violation of human rights, the state governments, with the confidence of the chief justice of high court, should specify every district and session/fast track court to be human rights court, to file the said offences, and also specify a public prosecutor or appoint an advocate as a special public prosecutor, for the pur- poses of conducting cases in that court, as so enshrined in Section 31 and Chapter 6 of the Act.
206 SHRC: SOCIAL AUDIT REPORT–III
tamil nadu Anupam Kishore | Harsh Dobhal | Mathew Jacob
SL.No 01 City Chennai Total Cases before Jury 45 Date September 15, 2012 Jury: Justice Malay Sengupta (Former Acting Chief Justice of Sikkim High Court); Dr. P. Manorama, (Former Chairperson, Child Welfare Committee, and President & Project Director, CHES); Dr. N. Markandeyan (Former Vice Chancellor, Gandhigram University); Dr. Balram (Former Member, Kerala State Human Rights Commission); Adv. Sudha Ramalingam (National Vice President, PUCL); and Adv. Susairaj Martin (Senior Human Rights Lawyer) Networking Groups Human Rights Advocacy and Research Foundation (HRARF), All India Network of NGOs and Individuals Working with National and State Human Rights Institutions (AINNI), Social Awareness Society for Youth (SASY), Society for Integrated Rural Development (SIRD) The independent people’s tribunal on the functioning of tamil nadu state human rights commission Executive Summary
tamil nadu state human rights commission
The SHRC and NHRC are statutory bodies constituted under the provisions of the Protection of Human Rights Act which was enacted in 1993. The Tamil Nadu State Human Rights Commission (TNSHRC) was established in 1997 under Section 21 of the Protection of Human Rights Act (PHRA), 1993. The TNSHRC has been consti- tuted under legislation passed by the Parliament of India.Human rights commissions are not called for in the Constitution of India, which means that the TNSHRC’s status resides purely in an Act, and the formation of it has been made optional1.
Independence Independence, through composition, representation, and infrastructure, so as to en- sure the stable mandate of the human rights institutions (HRI), is the fundamental pillar on which the Paris Principles stands. The TNSHRC reports to, and is controlled by, the home department of the state government. As this department is responsible for the state police, accusations against which make up the bulk of the claims in the TNSHRC, there is clearly a conflict of interest. It is difficult for the TNSHRC to maintain independence as its finances are sanc- tioned by the state government. The Commission’s lack of independence is also visible in its composition. The appointment process to the Commission under the PHRA, 19932, is susciptible to political influence. The apointment process does not take into account experience in the field of human rights. There is an even greater conflict of interest as Commission Members are then responsible for monitoring the activities of the very government who appointed them and pay their salary. Under Section 33 of the PHRA, 1993, the government allocates funds to the TNSHRC. Under Section 35 of PHRA, 1993, the Commission is to have its accounts verified by the Comptroller and Auditor General of India. Thus, the finances of the TNSHRC too are controlled by the state government. Also Section 27 of the Act3 assigns complete power to the Tamil Nadu Govern- ment regarding appointments, salaries, allowances and condition of services of the TNSHRC staff and officers. Thus, TNSHRC functioning is adversely affected by this hampered independence.
1. Section 21 of PHRA, 1993 2. Section 22 of PHRA, 1993 3. PHRA, 1993
TAMIL NADU 211 Functionaries of the Commission The Commission has a law division, investigation division and administration division. Law Division The law division is headed by the registrar. It is responsible for maintaining files and orders of the cases passed and adjudicated by the commission. Additionally, this division communicates orders to the con- cerned authority and forwards action reports to the chairperson and other members of the commission. Investigation Division The investigation division is headed by an officer not below the rank of Inspector General of Police (IGP). It deals with the cases entrusted to it by the commission including custodial deaths, custodial rapes, and encounters.This division lacks adequate staff, which has caused the commission’s over-reli- ance on government departments, especially the police, to investigate cases. Administration Division The administration division deals with the management of general administration, establishment mat- ters and accounts of the commission. All files related to administration, accounts, and establishment are generally processed at the section level, second level officer and submitted to the secretary of the commission for approval. The cases are generally processed at the section level and the files are submit- ted to the assistant registrar (law), registrar (law), members, chairperson as per the directions issued by the chairperson.
Relationship With The Government Even in matters where the commission showed some initiative and sought reports from different gov- ernment entities regarding complaints related to human rights violations, the government’s inadequate response, or complete lack of response, illustrates a shocking disregard for the rights of their own people.
Composition Selection and Appointment Under Section 21 of PHRA, 1993, in total, there can be a chairperson and two members of the com- mission. The chairperson must have been a chief justice of a high court, one member should be a re- tired judge of the high court or a district judge in the state and one member should be a person having knowledge of or practical experience in matters related to human rights. However, the members who have been appointed to the TNSHRC under the category of knowledge/practical experience in human rights have been district judges,the director of medical education, or the director of school education. Not a single member from civil society, media, academia etc. has been appointed in the past fifteen years of the TNSHRC’s functioning. Additionally, the selection process and appointment procedure take place with no consultation or discussion with the members of civil society.
Organisational Infrastructure Physical Infrastructure The SHRC now has its own spacious building, however, there is no reception counter where people who come can get support in registering their complaints. Even access to toilets is restricted to the staff, and there is insufficient facilities for public seating. The SHRC website does not reveal its budget alloca- tion, and neither of the annual reports have been uploaded on its website, despite this being mandatory under Section 4 of RTI Act, 2005.
212 SHRC: SOCIAL AUDIT REPORT–III Staffing The entire appointment process is under the control of the state government. The SHRC staff mem- bers are hand-selected from government posts and often deputed temporarily from similarly titled, but very different, government positions. These staff members are given no pre-service training in human rights for completing their jobs, and as they frequently have no background in human rights, and they perform this work without the necessary sensitivity or understanding of the special needs of victims of human rights. There are limitations on the SHRC’s ability to hire staff. The commission has no authority to recruit its own staff. All positions, including those of senior functionaries such as the secretary, the reg- istrar, the Inspector General of Police (IGP), all staff of the investigation and law division is secondees (on deputation from the government departments). The SHRC does not have fair and equal means of representation in terms of gender, religious minority groups and disabled populations.
General Competence And Responsibilities Advisory Functions The TNSHRC is not known to have intervened in any court on matters relating to human rights since its inception—not one single case. The TNSHRC has the power to review the safeguards provided by or under the Constitution or any law in force for the protection of human rights and recommend measures for their effective implementation4.They can also review factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures5. It also has the authority to undertake and promote research in the field of human rights6. None of these functions have been performed by the TNSHRC for the past 16 years– i.e. since its inception. Monitoring functions The Paris Principles state that a NHRI shall have responsibilities in relation to any situation of violation of human rights which it decides to take up; for drawing the attention of the government to situations in any part of the country where human rights are violated: for drafting proposals to put an end to systematic human rights violations; and, where necessary, expressing opinions on the positions and reactions of the government. This function is not carried out by the TNSHRC. Since its inception, the SHRC has not addressed the media or conducted any press meets at times when there have been gross human rights violations. The complainants who have placed their trust on the SHRC have been totally let down by the com- mission and its method of handling complaints. They essentially function as a post office and nothing more, despite the very real authority they have been allotted. The enquiries conducted by the TNSHRC are not public. Furthermore, the staggering length and prolonged nature of the hearings in many cases has resulted in the victims finally giving up and accepting ‘out of court settlements’, even when such occasions have been brought to the attention of the commission. Through all of this the SHRC has remained a mute spectator. Even after so many years of the SHRC’s functioning led by a retired chief justice of a high court there have been no efforts to provide free legal service for victims of human rights abuses. There has been no attempt taken to avail the services of the state legal services authority or the district legal ser- vices authority where the commission’s sittings are held.
4. Section 12(d) of PHRA, 1993 5. Section 12(e) of PHRA, 1993 6. Section 12(g) of PHRA, 1993
TAMIL NADU 213 pattern of HUMAN RIGHTS VIOLATIONS IN TAMIL NADU
The high incidence of crime in Tamil Nadu has assumed mammoth proportions in recent times. Indeed, the increase in crime rates has become a matter of serious concern. According to the National Crime Records Bureau Report7 Crime in India, 2012, issued by the ministry of home affairs, government of India, Tamil Nadu had 2,00,474 registered incidences of total cognisable offences (crimes) which con- tributes to 8.39 percent to the all India total; Tamil Nadu ranks third for criminality in India.
Human Rights Violations by Security Forces Law enforcement personnel are frequent violators of human rights. The Tamil Nadu Police has been re- sponsible for gross human rights violations including killing through indiscriminately firing on citizens. In 2006, 120 complaints were registered against police personnel in the state of Tamil Nadu8. The National Human Rights Commission recorded fifteen cases of death in police custody, 103 cases of death in judicial custody and four cases of encounter deaths in Tamil Nadu during the period of April 1, 2006 to March 31, 20079. Numerous cases of violation of human rights by the security forces were presented at the IPT held on the functioning of TNSHRC in Chennai. One such case was that of a police encounter death in Dindigul district. The victim Deivendran, a life convict in Trichy Central Prison, escaped from police escort on February 28, 2008 at Inamkulathur on the way to Trichy prison. A special police team was arranged to track down him. Finally the special team arrested the victim on January 20, 2009 in Kari- apatti, Virudhunagar district. After the arrest, he was taken in a police vehicle to Dindigul. On the way to Dindigul the victim was killed by the police who later claimed that it was during an encounter on January 20, 2009 at Perumal Kolipatty Village, Athur Taluk, Dindigul district.
Violation of Right to Life Violation of Civil and Political Rights: Custodial Deaths and Attack on HRDs Tamil Nadu has a very bad human rights record when it comes to treatment of its inmates at custodial institutions. According to the data released by the NHRC, the state of Tamil Nadu recorded 95 inci- dents of death in police custody from 2001-02 to 2010-1110, making it the sixth highest state in terms of human rights abuses of people under police custody. The NHRC has recorded 444 cases of police committing atrocities and 74 of jail officials from the state of Tamil Nadu in 2009-1011. In Tamil Nadu, on August 15, 2010, five human rights defenders (HRDs), including three wom- en, were arbitrarily arrested and detained on false charges for gathering information regarding human rights violations committed against a dalit youth who was tortured at apolice station12.
7. Crime in India, 2012, National Crime Records Bureau (NCRB), Government of India 8. http://ncrb.nic.in/ciiprevious/Data/CD-CII2006/cii-2006/CHAP16.pdf 9. NHRC Annual Report 2006-07 10. Torture in India 2011, Asian Centre for Human Rights 11. Tamil Nadu, India Human Rights Report, Issue 01, July – September 2010, Asian Centre for Human Rights (data recorded as on February 28, 2010)), also available at http://www.achrweb.org/ihrrq/issue1/tamil.html 12. India: Arrest and detention of five human rights defenders investigating Dalit Human Rights Violations, Frontline, August 17, 2010, also available at http://www.frontlinedefenders.org/node/13151
214 SHRC: SOCIAL AUDIT REPORT–III Violations against Dalits
“Practice of Untouchability is an offense and anyone doing so is punishable by law.” –Article 17, Constitution of India
Although, various laws and acts have been adopted for the prevention of untouchability and to provide equal status to dalits, atrocities continue to be committed in various forms. Every day in this nation four dalit and adivasi women are raped while 11 are physically assaulted. Furthermore, every week 13 dalits and adivasi are murdered, five dalits and adivasi homes are burned and six dalits and adivasi are kidnapped13. Official data show that the rate of conviction in cases of atrocities against dalits is extremely low. Ac- cording to information provided by the Inspector-General of Police (Social Justice and Human Rights), there were 18,752 cases – 4,445 fresh cases and 14,307 cases “brought forward”– involving SCs before special courts between 2003 and 2009. Of these only 412 ended in conviction whereas 3,354 were acquitted. In 2009 alone, there were 420 acquittals against 29 convictions; 2,656 cases were pending at the end of the year14. The NCRB recorded 991 crimes during 2006 registered under the SC/ST (PoA) Act in the state of Tamil Nadu15. The Tamil Nadu Police stated that 1,359 cases for violence against the dalits under the SCs/STs (Prevention of Atrocities) Act were registered during the year 200716. The dalits remain an extremely vulnerable community. Numerous cases of violation of dalit rights were presented at the IPT in Chennai. One such exam- ple, in which the TNSHRC failed to act, was highlighted during the IPT. The victim, Mr. Velanganni who belonged to the Hindu Parayar (Scheduled Caste), lived in Malayur, Sivaganga District. On July 02, 2007, the policemen of Ilayangudi Police Station came to his house and took him forcibly to the po- lice station for an inquiry in connection with a missing person named Sathyamoorthy. Mr. Velanganni was subjected to brutal torture, beaten by batons, abused, and threatened to produce his friend. The police also threatened to file a false case against the victim and to imprison him if he failed to do so. A complaint was sent to the SHRC on September 27, 2007. Later an additional letter was sent on Janu- ary 08, 2008 regarding the same matter, but still the commission did not take cognisance of the matter. There have been numerous incidences of violation of human rights of dalits in which the TNSHRC has failed to take any action. Seeing the apathy of the commission towards these grave incidences there is no doubt that dalits continue to face discrimination. The NHRC shares this same apathy towards such serious violations, which brings into question the viability of these commissions. The existence of these organisations in combination with their refusal to perform their only function actually acts to fa- cilitate the continuance of injustices being inflicted upon vulnerable communities all across the country, but dalits in particular.
13. http://www.thehindu.com/news/states/other-states/untouched-by-justice/article4340725.ece accessed January 29, 2013 14. Facing flak, Frontline, Volume 27 - Issue 06 :: Mar. 13-26, 2010, also available at http://www.frontline.in/ static/html/fl2706/stories/20100326270603800.htm 15. Crime in India, NCRB Report, 2006 16. http://www.achrweb.org/reports/india/AR08/tamil.html
TAMIL NADU 215 Violation of Women Rights Women in India are one of the most deprived groups in Indian society. Due to patriarchal customs and values, polarisation along caste line, illiteracy, and acute poverty, the women of Tamil Nadu are frequently deprived of their basic rights. Violations against women in Tamil Nadu is on rise. The National Crime Records Bureau recorded a total of 6,489 incidents of crime against women in 2006. These included 457 cases of rape, 718 cases of kidnapping and abduction, 187 cases of dowry death, 1,248 cases of cruelty by husbands and rela- tives, and 1,732 cases under the Immoral Trafficking (Prevention) Act of 1956.. The incidents of sexual violence, especially rape, has been on the rise in Tamil Nadu. According to the state home department and the police of Tamil Nadu17, the number of rape cases has increased in the state from 523 cases in 2007 to 596 cases in 200918. Numerous incidences of violations of women’s rights were presented at the IPT. One such case was of Fathima, resident of Nedugulam Eruppu, Ulagoorani, Sivaganga District. The victim and her hus- band were tortured in an enquiry in a theft case, at Kalaiyarkoil police station, in which they were kept under illegal custody from August 19, 2007 to August 22, 2007, and beaten with batons. The female victim was beaten in an all women’s police station, Sivaganga District, by female police. The victim’s husband was also brutally tortured and beaten to coerce a confession to the crime. A complaint was sent to the SHRC by both the victim Fathima (on September 14, 2007, Case No. 7235/2008) and the NGO People’s Watch (on June 28, 2008, Case No. 6119/2008). The SHRC closed both complaints (order dated July 05, 2012 and August 01, 2012 respectively) on the basis of the report of the superintendent of police (SP) Sivanganga, stating that the allegation against the police as false without hearing the victim’s side of the story. The TNSHRC mentioned in the final order that summons were sent to the victims for appearance before the SHRC, but the truth is that they received no such summons. This is yet another example of the exhaustive laziness of the commission towards such serious human rights violations.
Police Torture, Arbitrary Arrest, and Illegal Detention Article 5 of the Universal Declaration of Human Rights (UDHR) states that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’; and Article 9 of UDHR states, ‘No one shall be subjected to arbitrary arrest, detention or exile’. Torture and use of excessive force by police is rampant in Tamil Nadu. The number of pending human rights violation cases is on the rise. This is in part because of the shortage of staff, mismanagement, corruption, and excessive workload. There have been numerous incidences of illegal detentions happening in Tamil Nadu. One such incident happened in July 2008 when five persons, including three lawyers, were illegally detained by the police at Coimbatore. Later, the Madras High Court ordered a probe into the incident after filing of a habeas corpus petition19. There were cases of police torture presented at the IPT. One such case was of police harassment in Nellai district. G. Ravishankar complained to the NHRC about police officers inNellai district collud- ing with local goondas, entering into civil matters, and causing trouble for the village people by running
17. http://www.tnpolice.gov.in/cawchart.html 18. “Rape cases on the rise”, The Hindu, Chennai, May 8, 2010, also available at http://www.thehindu.com/news/ cities/chennai/rape-cases-on-the-rise/article424755.ece 19. http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/retired-judge-to-probe-illegal-detention-case/ article1300782.ece
216 SHRC: SOCIAL AUDIT REPORT–III ‘kangaroo courts’. The victim is affected as these ‘courts’ will not allow him to do repair work on his house, which is damaged, and his elderly parents and other members of the household are finding it difficult to stay in the house which leaks when it rains. So against this constant harassment by police in the village area, the victim sent a complaint to the NHRC praying for its intervention. The NHRC transferred the complaint, with Case No. 1632/22/45/2011/OC/M-3, dated September 05, 2011, to the TNSHRC, on December 08, 2011, under Section 13(6) of Protection of Human Rights Act, 1993. Since then the SHRC has not taken any action in the matter.
Conclusion
These are just a few of many examples which illustrate the situation of human rights in Tamil Nadu. The majority of the violations are inflicted by the very same people entrusted to protect these rights i.e. the police. These cases continue to get overlooked as there is no effective mechanism for prosecution of the perpetrator of such crimes, which in most cases is found to be police. The judiciary as well as the TNSHRC have developed an apathy which prevents them from making even minimal efforts towards preventing gross violation of human rights. This results in people slowly but gradually losing faith in democratic institutions constituted for protection of human rights. The commission needs to look seriously at decentralising its functioning to the district-level so as to make it more accessible and compatible to the common people. To make this happen, more resources, both human as well as financial, need to be invested in the commission. Moreover, the commission needs to be made independent both financially as well as administratively. Currently, it is fully depend- ent on the state government for its finances as well as its appointments. The commission receives money from the state government in the form of grants, and has to seek approval from the government before utilising the funds. This causes undue delays in the commission’s functioning and also restricts the com- mission’s autonomy.
TAMIL NADU 217 the independent people’s tribunal jury panel social audit report Chapter-I Patterns of Violations and Functioning of TNshrc
220 SHRC: SOCIAL AUDIT REPORT–III introduction
he judicial system in India is old, complicated, and lengthy. It takes years to reach any resolution. Because of the slow nature of trials, and the absence of any strong legal aid programmes, an accused person may languish in jail for years without having a meaningful opportunity to establish their innocence. In many cases, undertrials Tremain in jail for durations exceeding the maximum sentence for which that person has been booked.
Furthermore, most of these cases involve poor and vulnerable people belonging to deprived and marginalised communities. So, for prompt and effective justice delivery, an alternative mechanism was put into place with the formation of SHRCs in the states and the NHRC at the Centre, as per the Protection of Human Rights Act (PHRA), 1993. The human rights commissions are supposed to be bodies that provide access to justice without the time and costs associated with dealing with the court system. Accordingly, with a view to provide easy and immediate access to the needy vic- tims of human rights violations, the state human rights commission was constituted in the state of Tamil Nadu.
THE PARIS PRINCIPLES
The Paris Principles provide benchmarks against which proposed, new and existing National Human Rights Institutions can be assessed or ‘accredited’ by the Interna- tional Coordinating Committee’s Sub-Committee on Accreditation. Under the Paris Principles, NHRIs are required to: • Protect human rights, including by receiving, investigating and resolving complaints, mediating conflicts and monitoring activities; and • Promote human rights, through education, outreach, the media, publica- tions, training, capacity building as well as by advising and assisting govern- ments.
TAMIL NADU 221 • The Paris Principles set out what a fully functioning NHRI is and identify six main criteria that these institutions should meet to be successful: • Mandate and competence • Autonomy from the government • Independence • Pluralism • Adequate resources • Adequate powers of investigation But that has hardly been the case as the human rights institutions clearly lack the above mentioned requisite criteria as envisioned in the Paris Principles. And as one goes about discussing these criteria in detail in the later sections of this report, it will become clearer as to how these institutions functioning have been derailed because of lack of independence.
tamil nadu state human rights commission
he Paris Principles state that an institution’s mandate shall be clearly set forth in a constitutional or legislative text. A human rights institution (HRI) established through executive order is not Tenough, as the permanency and independence of the commission needs to be ensured. The Tamil Nadu State Human Rights Commission (TNSHRC) was established in 1997 under Section 21 of the Protection of Human Rights Act (PHRA), 1993. Though the TNSHRC has been constituted under legislation passed by the Parliament of India, it’s still not entrenched in the Constitution of India. So, the TNSHRC status resides purely on the Act i.e. PHRA, 1993, and the formation of it has been made optional in the Act1.
INDEPENDENCE
Independence, through appointments, representation, infrastructure, finances so as to ensure the stable mandate of the human rights institutions (HRI) is the fundamental pillar on which the Paris Princi- ples stand. The TNSHRC reports to the home department of the state government and is controlled by it. Unfortunately, the home department is implicated in most human rights violations in the state, including cases of police brutality. As such, the fact that the TNSHRC reports to the home department fundamentally brings into question the ability of the commission to remain neutral in cases involving the home department.. It’s difficult for the TNSHRC to maintain its independence from the government; the Tamil Nadu state government financially controls the commission as its finances are sanctioned by the state govern- ment only. The state takes advantage of this control over the finances of the commission. The TNSHRC is so underfunded, that it has been effectively paralysed by the government and is unable to fulfil even
1. Section 21 of PHRA, 1993
222 SHRC: SOCIAL AUDIT REPORT–III its mandate, providing protection from violations of human rights and improving the status of human rights throughout the state. Most of the complaints of human rights violations have been against the state, and the fact that the TNHRC is practically defunct, serves the state government. The number of cases taken up suo motu2 by the commission has been abysmally low. It is 124 for the period from the year 2006 to 20113. That averages to only 25 cases a year! The commission’s lack of independence is also visible in its composition. The appointment to the commission under PHRA, 19934, has political tones. It is primarily made on the matter of prestige rather than competence. Membership with the TNSHRC does not really take into account experience in the field of human rights. Appointment to the commission creates conflict of interests as commission members are responsible for monitoring the activities of the very government which appoints them and provides their salary. Section 27 of the Act5 assigns complete power to the Tamil Nadu government regarding appoint- ments, salaries, allowances and condition of services of the TNSHRC staffs and officers. Thus, TN- SHRC functioning is adversely affected and hampers independence.
Divisions of the Commission
The State Human Rights Commission, Tamil Nadu was constituted by the Government of Tamil Nadu in the year 1997 under the Protection of Human Rights Act 1993. The commission has a law division, investigation division and administration division.
Law Division The law division is headed by a registrar. The law division is responsible for maintaining files and orders of cases adjudicated by the commission. The law division deals with the matters relating to human rights violations or abetment thereof; or negligence in prevention of such violation by a public servant either on its own or on a request by a party and provides an opportunity of hearing to the parties in appropriate cases depending upon the facts and circumstances of each case. The law division communi- cates orders passed by the commission to the concerned authority. Further, all action-taken reports are also received by the law division and forwarded to the chairperson and members of the commission.
Investigation Division The Investigation division is headed by an officer not below the rank of Inspector General of Police (IGP). Its responsibilities’ include dealing with cases entrusted to it by the commission including custo- dial deaths, custodial rapes and encounters, and it conducts spot enquiries of detention facilities. The lack of adequate staff in the investigation unit of the commission means that the commission is forced to overly rely on the reports of the state government implicated in the human rights abuse. For example, when the TNSHRC has to adjudicate a police case, it must rely on the investigation of that police department. This fundamentally compromises the ability of the TNSHRC to make fair decisions. As has often been the case, the complaints coming to the commission are invariably transferred to the concerned authority, especially the police. In most cases of human rights violations, the same police of-
2. As per Section 12 of PHRA, 1993 3. RTI reply by TNSHRC to AINNI 4. Section 22 of PHRA, 1993 5. PHRA, 1993
TAMIL NADU 223 ficer ends up either investigating or influencing the case against whom the complaint was filed initially, and this starts the cycle of revictimisation. There is a clear conflict of interest as far as the investigation mechanism of the commission is concerned, and this affects the smooth functioning of the commission.
Administration Division The administrative division deals with the management of general administration, establishment (infra- structure etc.) matters, and the financial accounts of the commission. The officers and employees of the commission discharge their duties and responsibilities as per the provisions6 contained in the Protection of Human Rights Act, 1993. The files related to administration, accounts and establishment are gener- ally processed at the section level, second level officer and submitted to the secretary of the commission for approval. The cases are generally processed at the section level and the files are submitted to the assistant registrar (law), registrar (law), members, and chairperson as per the directions issued by the chairperson from time to time. The cases are entrusted by the commission to the director of investi- gation division and s/he in turn allocates the same to subordinate police officers of the investigation division. The director of investigation division submits his report with his opinion to the commission. Additionally, the state government shall make available to the commission:7 (a) an officer not below the rank of a secretary to the state government who shall be the secretary of the state commission; and (b) such police and investigative staff under an officer not below the rank of an inspector general of police and such other officers and staff as may be necessary for the efficient performance of the functions of the state commission. (2) subject to such rules as may be made by the state government in this behalf, the state com- mission may appoint such other administrative, technical and scientific staff as it may consider necessary8. Presently, there is only an acting chairperson and one member, instead of a permanent chairperson and two members9. Over the years, the members have been primarily civil servants or retired district judges. In the absence of any other person with expertise on human rights, the competence of the commission be- comes questionable. There has been no representation from civil society, the media, or academia in the TNSHRC. As far representation of women in the commission is concerned, only two female members have served on the TNSHRC during its 15 years of existence. No woman has ever been the chairperson of the commission. There has been no representation from any ethnic or minority groups, such as tribal or indigenous groups. Neither has a person with a disability ever been a member of the commission.
RELATIONSHIP WITH GOVERNMENT
Even in matters where the commission has been proactive and sought reports from various government entities regarding human rights violations, the government’s indifferent response, or to say no response at all, reflects the non-seriousness and complacency of the government towards the TNSHRC and its authority to review such matters.
6. As per Section 27 of PHRA, 1993 7. Section 27 (1) of PHRA, 1993 8. Section 27 (2) of PHRA, 1993 9. http://www.shrc.tn.nic.in/ as on January 14, 2014
224 SHRC: SOCIAL AUDIT REPORT–III Composition
Selection and Appointment The Paris Principles10 state that “the composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a pro- cedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights. Under Section 21 of PHRA, 1993, in total, there can be a chairperson and two members of the commission. The chairperson must have been a chief justice of a high court, one member should be a retired judge of high court or district judge in the state and one member should be a person having knowledge of or practical experience in matters related to human rights. However, the members who have been appointed to the TNSHRC under the category of knowl- edge/practical experience have been district judges,a director of medical education, or a director of school education. Not a single member from civil society, the media, or academia has been appointed in the past 15 years of TNSHRC’s functioning. The members including the chairperson of the SHRC are appointed by the government (see Sec- tion 22 of PHRA). The Governor appoints the members after consulting a committee consisting of (a) chief Minister — Chairperson (b) Speaker of the Legislative Assembly — Member (c) minister in-charge of the Department of Home, in the state — Member (d) Leader of the Opposition in the Legislative Assembly — Member Furthermore, the chief justice of the high court must be consulted for the appointment of a sitting judge of a high court or a sitting district judge. In the selection process and appointment procedure no consultation or discussion is done with the members of civil society. The commission has become a boarding lodge for highly accomplished retired members of the judiciary and civil servants who have towed the government line. The appointment process lacks transparency. The highly politicised process does not allow the most qualified and best candidates to be openly selected, and cannot ensure that commission members have the qualities, or sensitivities, that are essential for effective leadership in the field of human rights. The failure to appreciate what is necessary to equip the commission with a leadership capable of ful- filling its heavy mandate is indicated in both the founding law, through legal provisions creating overly and unnecessarily rigid criterion for the three seats on the commission, the implementation of the law, such as the failure to recognise the need for diversity and the consistent refusal to select even eligible and experienced activists and leaders in the field of human rights from civil society. The commission has no members of Tamil Nadu’s strong and vibrant civil society. Civil society is not even consulted in the appointment process. “Knowledge and practical experience in human rights,” as mandated in the PHRA, 199311, is not the primary consideration by the government when it appoints members of the SHRC. More often than not, appointments to the SHRC are made as rewards for political favours owed by those in power
10. Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights held in Paris on 7-9 October 1991, and adopted by the United Nations Human Rights Commission by Resolution 1992/54 of 1992, and by the UN General Assembly in its Resolution 48/134 of 1993 11. Section 21 of PHRA, 1993
TAMIL NADU 225 to retired government officials who have most often not done anything related to human rights in their career as government servants.
Cooperation with the Representatives of the Groups (CORE GROUPS)
The NHRC has constituted core groups to draw from the expertise of eminent persons but has not en- sured that any formal administration of these groups occurs. The TNSHRC has not even taken this to- ken initiative. The TNSHRCs relationship with civil society is very limited and deprives the TNSHRC of the opportunity to engage with a powerful, passionate, and knowledgeable partner in promoting and protecting human rights.
Tenure
Under Section 24 of the PHRA, 1993, the following is the term of office of members of the state com- mission: (1) A person appointed as chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier; (2) A person appointed as a member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years; (Provided that no Member shall hold office after he has attained the age of seventy years.) (3) On ceasing to hold office, a chairperson or a member shall be ineligible for further employ- ment under the government of a state or under the government of India. Members appointed are full time functionaries. Members receive adequate remuneration and enjoy a variety of perks, including the use of an office vehicle, and a personal staff. GO MS No 1465 of the Public [Law & Order] Department dated 20th Dec 1996 sets clearly that the chairperson and members are entitled to the following : their salary, dearness allowance, furnished rent free accommodation for the chairperson and house rent allowance for the members, city compensatory allowance, medical facilities, conveyance allowance, leave, leave travel concession for self and family, travel allowance and a daily al- lowance. Under Section 24 of the PHRA the term of office for members and the chairperson is for a period of five years, which is renewable. The retirement age is set at 70 years.
Procedures for Dismissal and/or Resignation Under Section 23 of PHRA, 1993, the chairperson or any other member of the state commission shall only be removed from office by order of the President on the ground of proved misbehaviour or inca- pacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed by the Supreme Court, reported that the chairperson or such other member, as the case may be, sought on any such ground to be removed. However, the President may, by order, remove from office the chairperson or any other member if the chairperson or such other member, as the case may be – (a) is adjudged an insolvent; OR (b) engages during his term of office in any paid employment outside the duties of his office; OR (c) is unfit to continue in office by reason of infirmity of mind or body; OR
226 SHRC: SOCIAL AUDIT REPORT–III (d) is of unsound mind and stands so declared by a competent court; OR (e) is convicted and sentenced to imprisonment for an offence which in the opinion of the Presi- dent involves moral turpitude. There is no advisory body in the commission in addition to the members. The annual reports of the TNSHRC from 1997 to 2012 reveal the following as regards persons who have held positions in the TNSHRC, their qualifications and terms of office:
Period Chairperson Members 1997 – 1998 Justice Thiru S. Nainar • Justice Thiru K. Swamidurai [ Former HC (1 + 4) Sundaram Judge]) At the time of filing [Former CJ] • Thiru Abdul Ghani [ DJ Retd] annual report • Thiru. R Ratnaswami ( DJ Retd) • Dr. (Tmt) Sushila Raj [ Retd DME) 1998 – 1999 Justice Thiru S. Nainar • Justice Thiru K. Swamidurai ( Former HC (1 + 4) Sundaram Judge ) [Former CJ] • Thiru Abdul Ghani ( DJ Retd) • Thiru. R Ratnaswami ( DJ Retd) • Dr. (Tmt) Sushila Raj( Retd DME) 1999 – 2000 Justice Thiru S. Nainar • Justice Thiru K. Swamidurai ( Former HC (1 + 4) Sundaram Judge ) [Former CJ] • Thiru Abdul Ghani ( DJ Retd) • Thiru. R Ratnaswami ( DJ Retd) • Dr. (Tmt) Sushila Raj ( Retd DME) 2000 – 2001 Justice Thiru S. Nainar • Justice Thiru K. Swamidurai ( Former HC (1 + 3) Sundaram Judge ) [Former CJ] • Thiru Abdul Ghani ( DJ retd) • Dr. (Tmt) Sushila Raj ( Retd DME) • Thiru R. Ratnaswami [ Retd DJ] demitted office on 14 – 12- 2000 2001 – 2002 Justice Thiru S. Nainar • Justice Thiru K. Swamidurai (Former HC (1 + 4) Sundaram Judge) [Former CJ] (until his • Thiru Abdul Ghani ( DJ retd) demise on 7.09.2000) • Dr. (Tmt) Sushila Raj ( Retd DME) • S. Sambandham (Retd DJ) 2002 – 2003 • S. Sambandham ( DJ retd) (0 + 1) 2003 – 2004 Acting Chairperson Jus- • S. Sambandham ( DJ retd) (1-acting + 1) tice S. Thangaraj (from 21.11.2003) ( Former HC Judge ) 2004 – 2005 Acting Chairperson Justice • S. Sambandham ( DJ retd) (1 -acting + o) S. Thangaraj ( Former HC Judge )
TAMIL NADU 227 2005 – 2006 Acting Chairperson Justice • S. Sambandham ( DJ retd) (retires on (1 -acting + 1) S. Thangaraj 29.03.2006) ( Former HC Judge ) 2006 – 2007 Justice A.S. Venkatachala- • Justice S. Thangaraj ( Former HC Judge ) (1 + 4) moorthy From 05.08.2006 [Former CJ] • Thiru A.R. Selvakumar (Retd DJ) ( from 5.08.2006) • Dr .K. Marriappan [ Retd DSE] • Dr. S. Paramasivam [ Retd DSE] 2007 – 2008 Justice A.S. Venkatachala- • Justice S. Thangaraj ( Former HC Judge ) (1 -acting + 4) moorthy • Thiru A.R. Selvakumar ( DJ retd) [Former CJ] • Dr .K. Marriappan [ Retd DSE] • Dr. S. Paramasivam [ Retd DSE] 2008 – 2009 Justice A.S. Venkatachala- • Justice S. Thangaraj (Former HC Judge) ( 1 + 3) moorthy (retires on 6.06.2008) [Former CJ] • Thiru A.R. Selvakumar ( DJ retd) • Dr .K. Marriappan • Dr. S. Paramasivam 2009 – 2010 Justice A.S. Venkatachala- • Thiru A.R. Selvakumar ( DJ retd) (1 + 3) moorthy • Dr .K. Marriappan [Retd DSE] [Former CJ] • Dr. S. Paramasivam [ Retd DSE] 2010 – 2011 Justice A.S. Venkatachala- • Thiru A.R. Selvakumar ( DJ retd) (1+3) moorthy • Dr .K. Marriappan [ Retd DSE] [Former CJ] • Dr. S. Paramasivam [ Retd DSE] 2011 – 2012 Justice A.S. Venkatachala- • Hon`ble Thiru K.Baskaran Serving DJ (1– acting + 1) moorthy (from 28.08.2011to 8.01.2012) [Former CJ] (until • Hon`ble Jayanthi (Retd) I.A.S (from 4.08.2011) 29.08.2011) • Dr .K. Marriappan [ Retd DSE] (retired Hon`ble Thiru K.Baskaran on 4.08.2011) [ Serving DJ] • Dr. S. Paramasivam [ Retd DSE] (retired (takes over as acting chair- on 4.08.2011) person from 9.01.2012) • Thiru A.R. Selvakumar ( DJ retd) (retired on 4.08.2011)
ORGANISATIONAL INFRASTRUCTURE
Infrastructure The TNSHRC has a building of its own, which is spacious. However, there is no reception counter where people who come, largely from the rural areas can get any adequate support for their complaints. Even access to toilets in this new building is restricted to staff only. There are no sufficient facilities for the public to even sit in the building. The website of the TNSHRC does not reveal it budget allocation, and the commission has failed to upload its annual reports as mandated under Section 4 of RTI Act, 2005.
228 SHRC: SOCIAL AUDIT REPORT–III The following is the allocations in the budget to the TNSHRC by the Government of Tamil Nadu: 2002 – 2003 : Rs 112.97 lakhs 2003 – 2004 : Rs. 113.68 lakhs 2004 – 2005 : Rs. 134.61 lakhs 2005 – 2006 : Rs. 115.83 lakhs 2006 – 2007 : Rs. 147.73 lakhs 2007 – 2008 : Rs. 161.83 lakhs There have been no reporting of expenses incurred, in data made available in the public domain. There is no accounting for how the commission’s allocations have been spent. There is no way to ascer- tain how much money was spent on training program on human rights,seminars, or publications and how much has been spent on salaries and perks.
Staffing Under Section 27 of PHRA, 1993, the state government is required to make available to the commis- sion (1) (a) an officer not below the rank of a secretary to the state government who shall be the sec- retary of the state commission; and (b) such police and investigative staff under an officer not below the rank of an inspector general of police and such other officers and staff as may be necessary for the efficient performance of the functions of the state commission. (2) subject to such rules as may be made by the state government in this behalf, the state com- mission may appoint such other administrative, technical and scientific staff as it may consider necessary. (3) salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2) shall be such as may be prescribed by the state government. The entire appointment process is thus under the control of the state government. TNSHRC staff members are hand-selected from government posts and often deputed temporarily from similarly titled, but very different, government positions. These staff members are given no pre-service training in hu- man rights for completing their jobs and, as they frequently have no background in human rights, they complete their jobs with no additional sensitivity or understanding of human rights. The failure of the TNSHRC to recruit, develop, and retain talented staff is an impediment to its growth and effectiveness. There are limitations on the TNSHRC’s ability to hire staff. It has no au- thority to recruit its own staff. All the positions, including those for senior functionaries such as the secretary, registrar, the Inspector General of Police (IGP), all staff of the investigation and law division is secondees i.e on deputation from the different government departments. The percentage of the staff (including senior position) that is seconded; • 10 percent of the senior positions are secondees. The TNSHRC does not have fair and equal means of representation in terms of gender, religious minority groups, and disabled populations. The following is the organisational chart illustrating the staffing structure of the SHRC as of 2009-1012.
12. http://www.shrc.tn.nic.in/files/shrc_rti.pdf as accessed on November 30, 2013
TAMIL NADU 229 SN Name of the Post No. of Posts 1 Secretary 1 2 Inspector General of Police 1 3 Registrar 1 4 Superintendent of Police 1 5 Assistant Registrar/Under Secretary 2 6 Account Officer/Private Secretary/Section Officer/Court Master/ 8 Deputy Superintendent of Police 7 Inspector of Police/Personal Assistant/Assistant Section Officer 12 8 Sub-Inspector of Police 2 9 Steno-Typist/Assistant/Data Entry Operator 8 10 Junior Assistant/Typist/Drivers 12 11 Police Constable 8 12 Record Clerk 1 13 Office Assistant/Night Watchman 21 Total 78
Premises (Accessibility) The Paris Principles state that NHRIs should be able to have its own premises and that, within the framework of its operation, the national institution shall set up local or regional sections to assist it in discharging its functions. The TNSHRC has its office in Chennai in a building of its own in the capital of the state. It has no regional offices. Members of the public have to travel to Chennai to access the SHRC in Tamil Nadu. Presently the building is accessible to PWDs and there is also a lift to give them access to the other floors. On occasions the chairperson and members of the commission have and are also presently travelling to a few easily accessible districts in order to hear the complaints. But very often complainants have to travel long distances, often at their own costs for several months during the pendency of a complaint or engage the services of a lawyer for a fee to represent them in each hearing. This makes it extremely costly and difficult for fighting or challenging the violation of human rights by an instrumentality of the state. It also defeats the point of going to the commission with violations of human rights when travelling to a court can be as expensive.
FINANCES
Under Section 33 of the PHRA, 1993, the state government must allocate funds to the SHRC, which may be spent by the commission for performance of its functions. Section 35 of the PHRA, 1993, requires the commission to have its accounts certified by the Comptroller and Auditor General of India and submitted to the state legislature. While the TNSHRC’s budget has increased over time from the years 2002 to 200813, it has not been adjusted sufficiently to allow the SHRC to fulfill its mandate. It is very clear that the TNSHRC
13. TNSHRC Annual Reports 2002-2008
230 SHRC: SOCIAL AUDIT REPORT–III requires more qualified, competent, and compassionate staff dedicated to protecting and promoting human rights. The TNSHRC requires not only the existing staff to be provided adequate remuneration through salary and benefits, but also more staff to be recruited to fulfill its mandated functions and serve the people of Tamil Nadu. It is very unfair that a human rights institution is placed in the home depart- ment which deals with the police and law and order, and the budget for the TNSHRC is being dealt by this department conveying that human rights is controlled by those who control law enforcement officials. It is a mismatch. If the SHRC is a recommending organisation, it should report to the highest level in the state and it should therefore report to the chief minister’s office. It is also remarkable to note that during the years 2007 – 201114 the TNSHRC has had two former directors of school education as members of the TNSHRC; during their period they have not done anything concrete to promote the teaching of human rights in the schools of the state. They have not even worked on an experimental level to engage with NGOs working in education and they fave failed to make recommendations in this regard specifically to the state government. The TNSHRC is thus not financially independent from the government in terms of its source of funds. They have not accessed any funding from external sources like the UNDP or UNICEF. The only outside funds they have accepted are de minimus funds from the NHRC for training programmes.
WORKING METHODS
Regular Meetings The Paris Principles state that within the framework of its operation, the human rights institution shall meet on a regular basis and whenever necessary in the presence of all its members after they have been duly convened. The frequency and composition of the TNSHRC meetings in practice (at the senior and staff level) is not known to the public excepting the following from the website of the TNSHRC15: “Procedure followed in decision making process, including channels of supervision and account- ability: ‘The files related to administration, accounts and establishment are generally processed at the section level, second level officer and submitted to secretary of this commission for approval. The cases are generally processed at the section level and the files are submitted to the assistant registrar (law), registrar (law), members, chairperson as per the directions issued by the chairperson from time to time. The cases are entrusted by the commission to the director of investigation division and he in turn allo- cates the same to his subordinate police officers of the investigation division. The director of investiga- tion division submits his report with his opinion to the commission’.”
Working Groups The Paris Principles state that within the framework of its operation, the human rights institution shall establish working groups from among its members as necessary. The TNSHRC has not established any working groups.
GENERAL COMPETENCE AND RESPONSIBILITIES
Advisory Functions The SHRC in Tamil Nadu is not known to have intervened in any court matters relating to human
14. RTI reply by TNSHRC to AINNI 15. http://www.shrc.tn.nic.in/files/shrc_rti.pdf as accessed on November 30, 2013
TAMIL NADU 231 rights since its inception, not in one single case! There have been several opportunities that have pre- sented themselves in cases before the Tamil Nadu High Court but the TNSHRC has refrained from doing so. Some recent cases where intervention would be appropriate include: a case on abolishing manual scavenging, cases resulting from the Paramakudi firing16, and a case against encounter killings in Tamil Nadu. The TNSHRC has the power to review safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights, recommend measures for their effec- tive implementation17; and review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures18. These functions have not been performed at all by the SHRC in Tamil Nadu for the past 16 years of its existence. It also has the authority to undertake and promote research in the field of human rights19. But this function has also not been carried out since its inception. The TNSHRC has also failed to work with research institutes or NGOs who are competent in such activities. It has also failed on the count of encouraging the efforts of non-governmental organisations and institutions working in the field of human rights20 in the past 16 years of its existence. The following is the performance scale of list of the functions mandated by the TNSHRC as per PHRA, 1993:
Function Performance scale Inquire, suo motu or on a petition, into com- Performed although not satisfactorily in terms plaint of violation of human rights or abetment of suo moto cases. Only 124 cases from the year thereof. 2006 to 2011. Intervene in any proceeding involving any al- Not performed at all. No budget allocations legation of violation of human rights pending made for this as well. before a court with the approval of such court; Review the safeguards provided by or under the Not performed at all. No budget allocations Constitution or any law for the protection of made for this as well. human rights. Review the factors, including acts of terrorism, Not performed at all. No budget allocations that inhibit the enjoyment of human rights. made for this as well. Undertake and promote research in the field of Not performed at all. No budget allocations human rights. made for this as well. Spread HR literacy among various sections of Some minor efforts, largely spontaneous and society and promote awareness of the safeguards not planned, have been carried out. No budget available for the protection of these rights allocations made for this as well. through publications, the media, seminars etc. Encourage the efforts of NGOs and institutions No budget allocations made for this as well. working in the field of human rights. Though there are a few NGOs which they have visited and worked with in past years.
16. http://www.frontline.in/the-nation/paramakudi-firing-clean-chit-to-police/article5338975.ece 17. Section 12(d) of PHRA, 1993 18. Section 12(e) of PHRA, 1993 19. Section 12(g) of PHRA, 1993 20. As per Section 12(i) of PHRA, 1993
232 SHRC: SOCIAL AUDIT REPORT–III Such other functions as it may consider neces- No such special functions are performed. sary for the promotion of human rights.
Monitoring Functions The Paris Principles state that a human right institution shall have responsibilities in relation to any situation of violation of human rights which it decides to take up; and for drawing the attention of the government to situations where human rights are violated, including making proposals for initiatives to put an end to such situations and, where necessary, expressing an opinion on the positions and reactions of the Government. This function is not carried out by the TNSHRC. Since its inception, the commission has not addressed the media or conducted any press meets at times when there have been gross human rights violations. There is no adequate material available from its annual reports to show that the TNSHRC has an inbuilt system of monitoring government compliance with its advice and recommendations. This is particularly seen from the following data that has been accessed through RTI filed by AINNI on a random selection basis of cases disposed by the TNSHRC in the year 2010. The following is the particulars of complaints dealt with by the state human rights commission, Chennai during the year 2010 obtained under RTI (by AINNI) and breakup of details with percentage:
Case Details Total Nos Percentage Cases in which complaints were forwarded to SP and other district 267 61% authorities and complaints closed Cases closed on the report of the concerned authorities 30 7% Complaints not addressed to the SHRC, where copies alone were 63 14% marked yet taken on file and closed by orders of a member of the SHRC . Cases closed as ‘sub-judice’, dismissed for default, not pressed and 6 1% repetition of the complaint. Complaints are outside the purview of the commission yet taken on 55 12% file and closed on orders of a member of the SHRC. Complainant directed to approach the concerned authorities 19 4% Complaints unsigned by the complainant yet taken on file and closed 5 1% on orders of a member of the SHRC. Total No. of cases taken up for random verification 445 In 2010, 61 percent of the cases disposed by the TNSHRC were closed after referring them to the SP or other district officials. Such disposal of complaints does not enhance the monitoring role of the TNSHRC at all. It only makes the institution look weak and without adequate ability to handle such cases. Thus the complainants who have placed their trust on the SHRC have been totally let down by the commission by the option that it utilises in the handling of complaints. Hence the TNSHRC only functions as a post office and nothing more when they have so many powers to rely upon. The enquir- ies conducted by the TNSHRC in cases are not public. The procedure followed by the commission is that of a criminal court where the complainant is to let in evidence in each case, is cross examined by a lawyer, there are witnesses on the side of the alleged perpetrators examined and finally an ‘order’ is
TAMIL NADU 233 pronounced. This demands the presence of the complainant in TNSHRC headquarters or where the case is posted to come for every hearing or be represented by a lawyer of his/her choice. Most often victims have to travel to different places for their hearings and spend this money on their own only because they have chosen to challenge the instrumentality of the state for a human rights violation that they have committed. The mere prolongedness of the hearings in many cases have resulted in the victims finally giving up and accepting ‘out of court settlements’ and even when such occasions have been brought to the attention of the commission, the TNSHRC has remained a mute spectator. Even after so many years of the TNSHRC’s functioning led by a retired chief justice of a high court there have been no efforts taken to avail of the services of the state legal services authority or the district legal services authority where the commission’s sittings are held. The TNSHRC does not provide a free legal service for victims. The TNSHRC is yet to conduct a ‘public hearing’ on any relevant issue of human rights violations in Tamil Nadu. The NHRC has come out with its own guidelines on many subjects: custodial deaths, post mortem of custodial deaths, deaths during the course of police action, encounter deaths, victims to police lock ups, guidelines of polygraph tests, human rights in prisons, guidelines of premature release of prisoners, videography of post-mortems in cases of deaths in jails, ending manual scavenging, and illegal trade in human organs etc. However, the Tamil Nadu SHRC has not taken any of these guidelines into consid- eration or taken efforts to monitor them in the state where they have jurisdiction. It is also seen that in the list of suo moto cases handled by the commission since 2006, out of the 124 cases there have been only five cases of custodial deaths and one encounter killing.
Dissemination of Information Under Section 28 of PHRA, 1993, the SHRC shall submit an annual report to the state government. Primarily, the annual reports of the TNSHRC are not in the language of the people of the state, Tamil. It is surprising to hear that these reports have also been placed on the floor of the state legislature and have been passed without any member ever raising this issue. It only indicates that no purpose has been served by the placing of this annual report of the SHRC before the legislature. The fact that these reports do not find a place on the website of the commission is a pointer to their non-compliance with the provisions of the RTI Act, 2005. There is information that the TNSHRC is mandated to compulsorily disclose in the public domain. The following is the list of information related to TNSHRC which is not available in the public domain: • the particulars of its organisation, functions and duties;[Available] • the powers and duties of its officers and employees; [Available] • the procedure followed in the decision making process, including channels of supervision and accountability; [Available] • the procedure followed in the decision making process, including channels of supervision and accountability; [Available] • the norms set by it for the discharge of its functions;[Not available] • the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; [Not available] • a statement of the categories of documents that are held by it or under its control; [Not avail- able] • the particulars of any arrangement that exists for consultation with, or representation by, the
234 SHRC: SOCIAL AUDIT REPORT–III members of the public in relation to the formulation of its policy or implementation thereof; [Not available] • a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; [Not available] • a directory of its officers and employees; [Not available] • the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; [Not available] • the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; [Not available] • the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes; [Not available] • particulars of recipients of concessions, permits or authorisations granted by it; [Not available] • details in respect of the information, available to or held by it, reduced in an electronic form; [Not available] • the particulars of facilities available to citizens for obtaining information, including the work- ing hours of a library or reading room, if maintained for public use;[Available] • the names, designations and other particulars of the public information officers;[Available] • such other information as may be prescribed and thereafter update these publications every year; [Not available] There is no system of follow up on the recommendations made by the TNSHRC.
Promotional Functions Raising Awareness on Human Rights Through Programmes for Teaching and Research Section 12 of the PHRA, 1993, mandates the TNSHRC to ‘undertake and promote research in the field of human rights’. This is the function that it has not performed for the past 15 years and even does not possess budget provisions to perform the same. There have been no initiatives taken by the TNSHRC to hold programmes promoting awareness about human rights in educational institutions like schools or universities, even though two of its members between the years 2007 – 2011 were former directors of school education.
Relationship with Human Rights Organisations The Paris Principles state that within the framework of its operation, the human rights institution shall, in view of the fundamental role played by the non-governmental organisations in expanding the work of the national institutions, develop relations with the non-governmental organisations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialised areas. Section 12 (i) of the PHRA, 1993, mandates as follows: ‘to encourage the efforts of non-govern- mental organisations and institutions working in the field of human rights.’ There is no formal mechanism created to develop relationship with NGOs at the TNSHRC. If there has been any relationship it is only to attend some training programs as guests of honour in the inaugural or valedictory sessions to which the TNSHRC responds. This is largely because the SHRC
TAMIL NADU 235 in Tamil Nadu views itself as a ‘governmental’ body and does not view NGOs as allies in the protection and promotion of human rights. This is also due to the total lack of training in human rights and hu- man rights standards for these chairpersons and members who have either been judges or officers of the government before assumption of office. Although a model, although poor, exists in the NHRC with the constitution of a National Core Group of NGOs to work with the NHRC, the TNSHRC has failed to follow this model in its activities. It is only in the case of complaints handling that NGOs and the TNSHRC have some interaction, and here the NGO is simply acting as a complainant. Even though there have been several NGOs which have been consistently sending complaints to the TNSHRC they have not been called even once for a discussion on a review of the complaints handling process of the commission. Also the TNSHRC has not developed any formal relationship whatsoever with any of the institu- tion working towards promotion and protection of human rights, like the bar associations or the bar council, or the Tamil Nadu Legal Services Authority, or for that matter with any of the existing state human rights institutions in the state such as the state commission for women, the state commission for minorities, the state information commission or the state commissioner for persons with disabilities etc. It just continue to function as an institution, being totally dependent on the government, fighting for its own survival rather than working for the cause for which it was constituted: the promotion and protection of human rights.
Patterns of HUMAN RIGHTS VIOLATIONS IN TAMIL NADU
he high incidence of crime in Tamil Nadu has assumed mammoth proportions and has become a matter of serious concern. According to the National Crime Records Bureau Report21 Crime Tin India, 2012, issued by the ministry of home affairs, Government of India, Tamil Nadu had 2,00,474 registered incidences of total cognisable offences (crimes), which contributed to 8.39 percent of the all India total. Tamil Nadu ranks third in criminality for states in India.
Human Rights Violations by Security Forces
The Tamil Nadu police force has been responsible for gross human rights violations, including viola- tions of the right to life especially killing through indiscriminate firing. In 2006, 120 complaints were registered against police personnel in Tamil Nadu22. According to the figures released by the National Crime Records Bureau (NCRB), 369 complaints were received against the police during the year 2007. Amongst these 86 police personnel were sent for trial during the year, but only trials involving six po-
21. Crime in India, 2012, National Crime Records Bureau (NCRB), Government of India 22. http://ncrb.nic.in/ciiprevious/Data/CD-CII2006/cii-2006/CHAP16.pdf
236 SHRC: SOCIAL AUDIT REPORT–III lice personnel were completed, and only two were convicted while the other four were acquitted. The following actions were taken against the culprit police personnel: 39 were dismissed from service, 370 were awarded major disciplinary punishment, and minor punishment was given to 694 police person- nel.23 The National Human Rights Commission recorded 15 cases of death in police custody, 103 cases of death in judicial custody and 4 cases of encounter death from Tamil Nadu during the period of April 1, 2006 to March 31, 2007. Asian Centre for Human Rights recorded a number of custodial deaths in 2007. On November 20, 2007, Ramalingam, a Pattali Makkal Katchi (PMK) party member, died in police custody at Cuddalore district. The Tamil Nadu Chief Minister announced immediate assistance of Rs one lakh to the family of the victim and a judicial inquiry into the custodial death24. On April 3, 2008, Mithun Chakravarthy was extra-judicially killed by the police in Thanjavur. The father of the deceased challenged the police in the Madras High Court. In December 2008, the Madras High Court ordered a reinvestigation of the case. The high court order observed that the previous in- quiry was far from satisfactory as the report of the revenue divisional officer had exonerated all of the accused policemen25. In December 2007, Syed Ali, a tea shop owner was tortured to death at the Vadapalani police station in Chennai. The relatives of the victims said that he died due to torture during interrogation. Following protests, Inspector Aathimoolam and constables Thiruvengadam and Subhash of the Vada- palani station were suspended26. In the year 2006-07, the NHRC registered 18 cases of illegal arrest, 10 cases of illegal detention, 47 cases of false implication of innocent persons and 167 cases of “other police excesses” in Tamil Nadu27. Numerous cases of violation of human rights by the security forces were presented at the IPT on the functioning of TNSHRC in Chennai. One such case was that of a police encounter death in Din- digul district. The victim,Deivendran, was a life convict in Trichy central prison who had escaped from police escort on February 28, 2008 at Inamkulathur on the way to Trichy prison. A special police team arranged to track down him. Finally the special team arrested Deivendranon January 20, 2009 at Kari- apatti, Virudhunagar district. After his arrest, Deivendran was taken in the police vehicle to Dindigul. On the way to Dindigul the victim was killed by the police in the name of encounter on January 20, 2009 at Perumal Kolipatty Village, Athur Taluk, Dindigul district. Another incidence of violation of human rights by the security forces, in which the victim died because of the police torture, was highlighted during the IPT. The victim,V. Babu, was arrested on October 08, 2011 regarding chain snatching case and booked under Section 397, 336, 341 and 506(2) of IPC. He was kept in illegal detention for three days from 8th October to 10th October, 2011, where he faced continuous torture and abuse from policemen. On October 11, 2011, Babu was remanded toPuzhal jail along with other two accused people, Premchand and Vijaykumar. On October 20, 2011, Babu was released on bail. His health condition got worse because of the
23. Crime in India 2007. NCRB, Government of India, also available at http://ncrb.nic.in/cii2007/cii-2007/ CHAP16.pdf 24. India Human Rights Report 2008, Tamil Nadu, Asian Centre for Human Rights (ACHR) 25. Court orders CB-CID probe into encounter death, The Hindu, 26 December 2008, also available at http:// www.hindu.com/2008/12/26/stories/2008122654310400.htm 26. India Human Rights Report 2008, Tamil Nadu, Asian Centre for Human Rights 27. As data provided by NHRC to ACHR through RTI, also available at http://www.achrweb.org/reports/india/ AR08/tamil.html
TAMIL NADU 237 continuous police torture. His relatives took him to Stanley government hospital around 4:30 pm but treatment was denied because they did not have the right paperwork from the police. Babu died at around 5:30 pm. In such a grave matter of death due to police torture, the SHRC has yet to take any action, even though the complaint was sent to it on November 02, 2011.
Violation of Right to Life
Violation of Civil and Political Rights: Custodial Deaths and Attack on HRDs The state of Tamil Nadu has a very bad human rights record when it comes to treatment of its in- mates at custodial institutions especially prisons and police stations. According to the data released by the NHRC, the state of Tamil Nadu recorded 95 incidents of deaths in police custody from the year 2001-02 to 2010-1128, which is the sixth highest in terms of ranking of states having the worst human rights record in treatment of people in police custody during this period. This is in addition to numer- ous incidences of torture handed out to victims by the police on a daily basis, and which mostly goes unreported. In most of these cases, the police invariably refuse to take complaints against it as in such torture incidences the perpetrator is the police itself. Victims are effectively kept quiet as most of them can- not afford to have any recourse or knowledge about the alternative measure legally available to them, including approaching courts to have their grievances heard and their torture incident recorded, regis- tered, and reported. The situation of human rights is the same in prisons. 744 deaths happened in the period from the year 2001-02 to 2009-10 (upto February 28, 2010)29, which was the fifth highest in terms of ranking of states having the worst human rights record in treatment of people in prison custody during this period.
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” –Article 7, International Covenant on Civil and Political Rights
According to NHRC guidelines, any instance of custodial death must be reported within 24 hours of occurrence. Such information is to be followed by submission to the commission of the relevant post-mortem report, a magisterial inquest report, and a videography report on the post-mortem. Un- fortunately, it was observed that there was frequent delays in sending of these reports. This in turn delays the processing of cases of custodial violence in the NHRC and the awarding of interim relief when, prima-facie, there was reason to conclude that a custodial death had resulted from custodial violence30. Custodial death is one of the common form of human rights violation in the state of Tamil Nadu. Moreover, due to poor condition of the prisons, lack of medical aid to the prisoners, and lack of staff, the condition of prisons is deteriorating. The prisons are overcrowded. There are also not enough female staffs to deal with the female prisoners. The NHRC has recorded 444 cases of atrocities by the police and 74 cases implicating jail officials in the state of Tamil Nadu during the year 2009-1031.
28. Torture in India 2011, Asian Centre for Human Rights 29. Torture in India 2011, Asian Centre for Human Rights 30. NHRC Annual Report 2000-2001, available at: www.nhrc.nic.in/ar00_01.htm#b 31. Tamil Nadu, India Human Rights Report, Issue 01, July – September 2010, Asian Centre for Human Rights
238 SHRC: SOCIAL AUDIT REPORT–III On August 15, 2010, five human rights defenders (HRDs), including three women, were arbitrar- ily arrested and detained on false charges for gathering information regarding human rights violations committed against a dalit youth who was tortured at apolice station. These HRDs had gone to the Veeravanallur police station in Tirunelveli district as a part of their investigation. The victims were produced before a magistrate and placed in judicial custody. In the remand report, Mr. Henri Tiphagne of People’s Watch, Tamil Nadu, who is also a member of the National Human Rights Commission’s Na- tional Core Group of NGOs, was referred to as the absconding ‘accused’ despite the fact that no charges have been brought against him and he was not present at the police station at the time of arrest32.
Court Ordered Relief
It’s not that the judiciary has been completely oblivious to the grief of the victims of the human rights violations. There have been incidences where some relief has been provided to the victims. The court has delivered several judgments in favour of the victims. On June 27, 2008, the Madras High Court directed the state government to pay Rs one lakh as compensation to the legal heir of a vegetable vendor who died due to torture by the police of the Karur (district) town police station in 1999.33 In an incident of custodial death of a dalit man, Rajamani, the Madras High Court directed the state government to pay Rs 5 lakh as compensation to the family of the dalit, who died due to police torture in 1993. The victim was picked up by the police for allegedly selling illicit liquor and was tor- tured which resulted in his death. The police story was that the victim had drowned after jumping into a well while trying to escape. However, the post-mortem report revealed otherwise. It said that the victim had died of shock and haemorrhage and not due to drowning34. However, the court awarded compensation in November 2008, over a decade after the man had been killed. In yet another incident of death due to police torture, the Madras High Court directed the state government to pay a compensation of around Rs 3 lakh with interest, to the family of the victim, who was a construction worker, and was arrested in a theft case. The victim died in police custody at Korat- tur police station in the year 1998.35 Importantly, even in serious human rights violations like custodial deaths it is quite visible from the orders of the court that the judiciary has failed to break the undeclared immunity provided to the state authorities, especially the police, by not prosecuting the police personnel, who the court have themselves found guilty for committing such heinous crime. Compensation is insufficient in such cases.
(data recorded as on February 28, 2010)), also available at http://www.achrweb.org/ihrrq/issue1/tamil.html 32. India: Arrest and detention of five human rights defenders investigating Dalit Human Rights Violations, Frontline, August 17, 2010, also available at http://www.frontlinedefenders.org/node/13151 33. Court orders compensation, The Hindu, June 29, 2008, also available at http://www.thehindu.com/todays- paper/tp-national/tp-tamilnadu/shrc-orders-compensation-for-victim/article1372654.ece 34. Rs 5 lakh in damages for lock-up death, The Times of India, November 6, 2008, http://articles.timesofindia. indiatimes.com/2008-11-20/hyderabad/27923181_1_constables-compensation-assault 35. Government told to pay compensation for custodial death, The Hindu, November 4, 2008, also available at http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/government-told-to-pay-compensation-for- custodial-death/article1369233.ece
TAMIL NADU 239 Violations against Dalits
“Practice of Untouchability is an offense and anyone doing so is punishable by law.” –Article 17, Constitution of India
Article 17 was incorporated in Indian Constitution to prevent the practice of ‘untouchability’. The government of India introduced Scheduled Castes/Scheduled Tribes (SC/ST) (Prevention of Atrocities) Act, to combat the practice of untouchability and discrimination against dalits and tribals. Although, various laws and act have been adopted for the prevention of untouchability and provide an equal status to dalits, but still atrocities are being committed against them in various forms, and on a daily basis. Every day, four dalit and adivasi women are raped while eleven dalits and adivasi are beaten up in the country. Further, every week, thirteen dalits and adivasi are murdered, five dalits and adivasi homes are set on fire and six dalits and adivasi are kidnapped36. The violation of the rights of the dalits is very high in the state of Tamil Nadu. Untouchability and discrimination continued to be practice in several parts of Tamil Nadu. On September 10, 2010, about 150 families of caste Hindus of N Kumarapalayam village in Tirupur district erected two barbed fencing preventing 50 dalit families from living in the Aandikattu Thottam village or from using public roads maintained by Nanjiyampalayam village panchayat. This was done to supposedly stop dalits from polluting their sanctity37. In Tamil Nadu, seats have been reserved for dalits in the panchayats. But, the elected representa- tives of the dalits have been given no freedom to function independently by the caste Hindus. Mr. S. Karuppan, a dalit Panchayat president of Kottakachiyenthal village in Virudhunagar district, was pre- vented from executing his duties. Mr. Karuppan was forced to sign blank cheques without being briefed about their utilisation38. Apart from practice of untouchability and discrimination, the dalits have been subjected to various kinds of atrocities in the state. Over thousand cases have been filed every year under the SC/ST (Preven- tion of Atrocities) Act, 1989, since 2005. However, the conviction rate is very low. Adocument pre- pared by the social justice and human rights wing of Adi Dravidar Welfare Departmentshows that 2,822 cases were pending at courts and special courts. Madurai (Rural) tops the list with 353 cases pending before the courts followed by Sivaganga (310), Tirunelveli (220), Villupuram (220), Virudhunagar (205), Dindigul (158), Thanjavur (136) and Ramanathapuram (131) districts39. Official data show that the rate of conviction in cases of atrocities against dalits is very low. Accord- ing to information provided by the Inspector-General of Police (Social Justice and Human Rights), there were 18,752 cases – 4,445 fresh cases and 14,307 “brought forward” cases – involving SCs before special courts between 2003 and 2009. Of these, only 412 ended in conviction, whereas there were 3,354 acquittals. In 2009 alone, there were 420 acquittals against 29 convictions; 2,656 cases were
36. http://www.thehindu.com/news/states/other-states/untouched-by-justice/article4340725.ece accessed January 29, 2013 37. Tamil Nadu, India Human Rights Report, Issue 01, July – September 2010, Asian Centre for Human Rights, also available at http://www.achrweb.org/ihrrq/issue1/tamil.html 38. Dalit panchayat president alleges sidelining by colleagues, The Hindu, September 25, 2010, also available at http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/dalit-panchayat-president-alleges-sidelining-by- colleagues/article794786.ece 39. Conviction rate poor under SC & ST Act: official document, The Hindu, November 4, 2010, also available athttp://www.thehindu.com/news/national/tamil-nadu/article867129.ece
240 SHRC: SOCIAL AUDIT REPORT–III pending at the close of the year40. The NCRB recorded 991 crimes during 2006 registered under the SC/ST (PoA) Act in the state of Tamil Nadu41. The Tamil Nadu Police stated that 1,359 cases for violence against the dalits under the SCs/STs (Prevention of Atrocities) Act were registered during the year 200742. The dalits continue to remain vulnerable to atrocities. Numerous cases of violation of dalits rights were presented at the IPT on the functioning of TNSHRC. One such case was of illegal detention, scolding and torture of dalits by police officials in Thiruvarur district. In Vittukatti village, in May 2003 three murders took place under suspi- cious circumstances. In connection with the above incident, police officials of Thiruthuraipoondi and Thirukalar police stations brought 40 dalits fromVittukatti village to the police station and kept them under illegal custody for three days, and tortured and threatened to kill them. People’s Watch took the victims all the way from Vittukatti village, Thiruvarur district to Chennai and produced them before the TNSHRC and presented the complaints of the victims on May 23, 2003. While the enquiry was pending before the commission, the perpetrators/police attempted to save their own skin by using the poverty of the victims. Police officials offered bribes to the victims in order to escape from the clutches of the law. People’s Watch executive director went in person to the commission to inform the TNSHRC about the bribery attempt on June 26, 2009, after having already submitted a detailed memorandum on June 24, 2009. But the executive director’s statement was not added to the official file, and has not been considered during the course of the enquiry. Finally, the perpetrators succeeded in obtaining the closure and disposal of the case as not pressed and thus it was withdrawn on July 26, 2010 after the lapse of seven years and two months. Another incident of dalit atrocity, in which the TNSHRC failed to act, was highlighted during the IPT. The victim Mr. Velanganni, Hindu Parayar (Scheduled Caste), lived in Malayur, Sivaganga district. On July 02, 2007, a policeman from the Ilayangudi Police Station came to his house and took him forcibly to the police station for an inquiry in connection with the missing of one person named Sathy- amoorthy. The victim was subjected to brutal torture, beaten by batons, abused and also threatened by police to produce his friend along before the police. The police also threatened to file a false case against the victim and to remand him to the prison if he failed to do. A complaint was sent to the TNSHRC on September 27, 2007 and a reminder letter was subsequently sent to the commission on January 08, 2008, but still the commission did not take cognisance of the matter. There have been numerous incidences of violation of human rights of dalits, in which the TNSHRC has failed to take any action. One more such incidence of Dalit atrocities took place in Coimbatore dis- trict. On February 18, 2008, at 3 pm the dominant Vanniar community people had attacked the Arun- thathiyar (dalit) community people at Salarapatti village, Udamalaipettai Taluk, Coimbatore district, termed them as “Chakkilia Thayolikla” (a verbal abuse) and caused injuries to them, on the matter of use of a community hall. In the incident that took place, Veerasamy, M. Subramani, C. Anandan, D Masani, L. Boopathy, Chinnal, Velammal and other eight belonging to dalit community and living in Salarapatti, were injured as a result of brutal attack by the dominant Vannyar community people. Police was there, but it remained a mute spectator and in fact encouraged them to beat the dalit people by giving them their iron edged police baton. After the incident, the victims were arrested as the police reportedly registered a case on behalf of the perpetrators.
40. Facing flak, Frontline, Volume 27 - Issue 06 :: Mar. 13-26, 2010, also available at http://www.frontline.in/ static/html/fl2706/stories/20100326270603800.htm 41. Crime in India, NCRB Report, 2006 42. http://www.achrweb.org/reports/india/AR08/tamil.html
TAMIL NADU 241 Though the complaint was sent to the TNSHRC on March 19, 2008, and a reminder letter was sent on March 19, 2011, still the TNSHRC continues to sleep over such serious atrocity matters. The plight of a dalit human rights defender was also presented to the IPT. The dalit victim Annadurai,belonging to Parayar community, and resident of Kovil Mathimangalam village and post, Polur Taluk, Thiruvannamalai district, worked on behalf of Dalit and poor people of the area, and sent the complaint about the atrocities inflicted upon them to the higher authorities. He was subjected to brutal torture and verbal abuse in the name of the caste by dominant Udayar caste people. And all this was just done to stop him from helping the victims of dalit atrocities perpetrated by the dominant caste people. Even the police at Kadaladi police station refused to register a complaint regarding the same. A complaint was sent to the SHRC on June 17, 2009, and two subsequent reminder letters were subse- quently sent on August 20, 2010 and on March 31, 2011 to the commission but still the commission did not take any steps to provide relief to the victim. Seeing the apathy of the commission towards these grave incidences of violation of human rights of dalits, one can say that the dalits continue to face discrimination. NHRC as well as the TNSHRC apathy towards such serious violations really put the question mark on the working of these commis- sions, and further facilitates the continuance of the injustices being inflicted upon dalits on a daliy basis. There seems to be no end to their agony in the current discriminatory nature of estates (legislature, executive and judiciary) of India.
Violation of Women Rights
Women in India are considered to be the most deprived section of the society. Women are subjected to both physical and mental torture. Due to the patriarchal system of customs and values, polarisation along caste line, illiteracy and acute poverty, women are deprived of their basic rights in the state of Tamil Nadu. The rate of crime against women (calculated as per one lakh population) was 21.23 percent during the year 201243. This, however, does not reflect the actual cases of sexual harassment or violence against women in the state as these numbers actually reflect only the cases that were registered. Though the government has adopted various development programmes, women are still deprived of basic rights such as food, health and education. The following table shows the incidences of crime committed against the women in the state of Tamil Nadu during the years 2007-2009:
SN Category Of Crime Committed* 2007 2008 2009
1 Rape 523 573 596
2 Dowry Death 208 207 194
3 Molestation 1558 1705 1242
4 Sexual Harassment 875 974 501
5 Cruelty By Husband And His Relatives 1976 1648 1460
43. Crime in India (2012), National Crime Records Bureau (NCRB), Government of India
242 SHRC: SOCIAL AUDIT REPORT–III Kidnapping And Abduction Of Women 6 1097 1155 1133 And Girls
7 Dowry Prohibition Act 368 262 207
Total 6605 6524 5333
* http://www.tnpolice.gov.in/cawchart.html
Violations against women in the state of Tamil Nadu has been on rise. The National Crime Records Bureau recorded a total of 6,489 incidents of crime against women in 2006. These included 457 cases of rape, 718 cases of kidnapping and abduction, 187 cases of dowry death, 1248 cases of cruelty by husbands or relatives, and 1,732 cases under the Immoral Trafficking (Prevention) Act of 1956. Violence against women continued to be high. According to Tamil Nadu police records, a total of 523 rape cases, 208 dowry deaths cases, 1558 molestation cases, 875 sexual harassment cases, 1,976 incidences of cruelty by husband and his relatives, and 1,097 cases of kidnapping and abduction were reported in the year 200744. The Tamil Nadu police recorded a total of 6,524 incidences of crime com- mitted against women during the year 2008. These had 573 cases of rape, 207 cases of dowry death, 1,705 cases of molestation, 974 cases of sexual harassment, 1,648 cases of domestic violence, 1,155 cas- es of kidnapping and abduction of women and girls, and 262 cases under the Dowry Prohibition Act.45. As such, the incidence of crime committed against women in the state of Tamil Nadu has been on the rise; it was 7,192 in the year 201246. The incidents of sexual violence, especially rape, has been on the rise in the state of Tamil Nadu. According to the state home department and the police of Tamil Nadu47, the number of rape cases has increased in the state with 523 cases in 2007 to 596 cases in 2009. While the number of cases charge-sheeted was 432 in 2007, it was only 269 in 200948. Female police personnel in the state of Tamil Nadu also face sexual harassment at the workplace. Taking serious note of the incident, in September 2010, the Madras High Court directed the DGP, Tamil Nadu, to enquire into a complaint lodged by a woman sub-inspector against the SP and other police officers of Sivaganga district. The court pointed out that the police officers accused of subject- ing their women subordinates to sexual harassment should not hesitate to face enquiries on the ground that entertaining such allegations would destroy or devastate the morale of the entire police force. It further said that proper enquiry should be conducted on the complaint lodged by the victim on June 19, 201049. There have been numerous reports of sexual violence from different parts of Tamil Nadu. One such heinous incident took place in 2008, a Senthil Thoppu tribe girl, was gang-raped in front of her own family members in her village near Bodinayakkanur in Theni district by three caste Hindus. The perpetrators forcefully entered the house of the victim and dragged her out. They also threatened to kill
44. http://www.tnpolice.gov.in/cawchart.html 45. http://www.tnpolice.gov.in/cawchart.html 46. Crime in India (2012), National Crime Records Bureau (NCRB), Government of India 47. http://www.tnpolice.gov.in/cawchart.html 48. “Rape cases on the rise”, The Hindu, Chennai, May 8. 2010, also available at http://www.thehindu.com/news/ cities/chennai/rape-cases-on-the-rise/article424755.ece 49. http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/police-officers-should-not-hesitate-to-face- sexual-harassment-probe-court/article613003.ece
TAMIL NADU 243 the victim’s family members. At the Bodinayakanur police station, where the rape victim went for help, she was discouraged from pursuing the case50. Such is the apathetic attitude of the police towards such gross human rights violation such as rape. Numerous incidences of violation of women’s rights were presented at the IPT on the functioning of TNSHRC in Chennai. One such case was of Fathima, resident of Nedugulam Eruppu, Ulagoorani, Sivaganga district. The victim and her husband were tortured in an enquiry in a theft case, at Kalai- yarkoil police station, in which they were kept under illegal custody from August 19, 2007 to August 22, 2007, and were beaten with batons. The female victim was beaten in an all women’s police station in Sivaganga by female police. The victim’s husband was also brutally tortured and beaten by the police, and was forced to confess the crime. Complaints were sent to the TNSHRC by both the victim Fathima (on 14/09/2007, Case No. 7235/2008) and the NGO People’s Watch (on 28/06/2008, Case No. 6119/2008). The TNSHRC closed both complaints (order dated 05/07/12 and 01/08/12 respectively) on the basis of the report of the Superintendent of Police (SP) of Sivanganga, holding - without even hearing the victim’s side of the story - that the allegations against the police were false. The TNSHRC mentioned in its final order that a summons was sent to the victim and her husband to appear before the TNSHRC, but they received no such summons. Such is the apathetic attitude of the commission towards such serious violation of human rights of women. Another incidence of violation of women’s rights by the authority that is supposed to protect it, the police, was highlighted during the IPT. On August 13, 2010 when the victim Ms. Thavampettanayagi was getting down from a bus, she was sexually harassed by Ravi, constable, north police station, Raja- palayam, and for this incident she went to file a police complaint. The police refused to register the FIR initially. But after sending the complaint to higher authorities, the complaint was finally registered and the case was taken before court on March 9, 2011. Later, the perpetrator Ravi and his people started harassing the victim to withdraw the case. To take action against the police officers, who were causing harassment and giving life threats to the victim, a complaint was filed in the TNSHRC on June 7, 2011, registered as SHRC Case No: 7602/2011. No action was taken to provide protection to the sexually harassed victim.
Violation of Child Rights
The Declaration of the Rights of the Child (adopted by UN General Assembly Resolution 1386 (XIV) of December 10, 1959) says that, “to the end that he may have a happy childhood and enjoy for his own good and for the good of society the rights and freedoms herein set forth, and calls upon parents, upon men and women as individuals, and upon voluntary organisations, local authorities and national governments to recognise these rights and strive for their observance by legislative and other measures progressively”. The declaration was accepted by the Indian government. The Indian Constitution guarantees child rights and the government of India has provided it through various programmes adopted in the areas of health, nutrition and education. But in spite of many laws and development programmes for children in India, they are still deprived of their basic rights. The situation of the children is precarious in India. They have been victims of child labour, child prostitution, child marriage, and child abuse. They are also deprived of their basic rights like right to education, health, development.
50. Police file case of rape of tribal girl in Theni district, The Hindu, 4 June 2008, http://www.hindu. com/2008/06/04/stories/2008060455481100.htm
244 SHRC: SOCIAL AUDIT REPORT–III The National Crime Records Bureau (NCRB), recorded a total of 353 crimes committed against children, including 59 murders, 125 rapes, and 118 kidnapping and abduction incidences during the year 200651. The number was no less in the year 2007 which recorded 441 incidents of crime against children in the state. Of these, 44 were cases of murder, 141 rape cases, and 197 cases of kidnapping and abduction52. The schools meant for rescued child labourers are on the verge of closure due to a lack of adequate funds. To stop this violation of child rights, a Public Interest Litigation (PIL) petition was filed in the Madras High Court in July 2010, seeking a direction to provide adequate funds for the smooth functioning of 587 schools running under the National Child Labour Project (NCLP). Eight such schools in Virudhunagar district have already been closed down because of a lack of funds. Fearing the closure of more schools, which have provided such an important service to rescued child labourers, led to the filing of the PIL. The PIL was filed by an association of teachers and employees of these special schools53. Another violation of child rights case was highlighted in a survey conducted by the Sarva Shiksha Abhiyan (SSA) programme run by the union government of India, and as reported in The Hindu (Chen- nai edition) in April 2010, in which it was found that over 3,000 children were not attending school in Chennai district alone. The survey also found that many of these were working as child labourers54.
Police Torture, Arbitrary Arrest and Illegal Detention
Article 5 of the Universal Declaration of Human Rights (UDHR) states that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’; and Article 9 of UDHR states, ‘No one shall be subjected to arbitrary arrest, detention or exile’. Torture and use of excessive force by police is rampant in the state of Tamil Nadu. The police atrocity most often takes the form of custodial death, illegal detention, arbitrary arrests, custodial violence, rape, etc. There is an increasing level of pending human rights cases in the commission and the factors con- tributed to this increasing workload - shortage of staff, mismanagement of resources, and corruption. Since the TNSHRC does not have a functional independent investigation wing to aptly deal with the large number of cases coming to it, the complaints against police are sent to the same police, who have been the perpetrator themselves, for investigation. Invariably, most of such complaints are forwarded to the police and closed at the commission’s end. The other remaining cases of violations by the police are closed by the commission stating it to be false, based on the police report only. A dalit family of Virudhunagar district was illegally detained and harassed by the Rajapalayam North Police from 6-13 January, 2008, regarding which the Madras High Court directed the Director General of Police (DGP) to get a proper investigation done by a deputy IGP55. There have been numerous such incidences of illegal detentions happening in the state of Tamil
51 crime in India 2006, NCRB, Ministry of Home Affairs, Government of India 52 crime in India 2007, NCRB, Ministry of Home Affairs, Government of India 53. http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/pil-seeks-funds/article524560.ece 54. “Over 3000 children are not going to school”, Aloysius Xavier Lopez, The Hindu, Chennai, April 19, 2010, also available at http://www.thehindu.com/news/cities/chennai/over-3000-children-are-not-going-to-school/ article402974.ece 55. http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/court-orders-probe-into-illegal-detention-of- dalits/article1213444.ece
TAMIL NADU 245 Nadu. Such an incidence happened in July 2008, when five persons inclusive of three lawyers were il- legally detained by the police at Coimbatore. Later, the Madras High Court ordered a probe into the incident after filing of a habeas corpus petition56. A poor truck driver was illegally detained and subjected to torture at the Thammampatti police station in Salem district in October 2008. There the victim was illegally detained and tortured for three days by the police. The victim was chained to the wall in the police cell57. There were cases of police torture presented at IPT held on the functioning of TNSHRC in Chennai. One such case was of police harassment through Kangaroo courts in Nellai district. G. Ravishankar, complained to the NHRC about the police officers of Nellai district, colluding with local goondas and entering into civil matters and causing trouble for the village people. The victim was badly affected by the actions of the police officers and by the ‘Kangaroo courts’ which would not allow him to do necessary repair work in his house which was so damaged that his aging parents and other members found it difficult to stay in the house. So against this constant harassment by police in the village area, the victim sent a complaint to the NHRC praying for its intervention. The NHRC transferred the complaint to the Tamil Nadu SHRC, on December 08, 2011, under Section 13(6) of Protection of Human Rights Act, 1993, terming the matter to be belonging to SHRC. Since then the SHRC has not taken any action in the matter. Another incident of harassment, false case, and police inaction was highlighted during the IPT. Ragunathan, Thiruvallur village Ilayangudi, Sivaganga district, belonging to Adidravidar Pallar (Sched- uled Caste) community was a victim of police inaction. On September 18, 2007 the victim had gone to Ilayangudi police station where the police refused to register the complaint about the atrocity (abuses) being inflicted on dalits in the village, and was chased away. On his way return from the police station, he was assaulted, abused and tortured brutally by the upper caste people of the village. Thereafter, the police came to force the victim to compromise the matter, and later registered a false case (Case No. 396/2007, U/s -294 (b) and 506 (ii) of IPC on 18/09/07) against the victim only at Ilayangudi police station. Later, on September 19, 2007, the victim complained about it to the higher authorities including the SP, DC, DGP, special cell of CM, but nobody took any cognisance of it. So, a complaint was sent to TNSHRC on December 10, 2007 by the NGO People’s Watch. The TNSHRC did not take take any cognisance of the matter. Even a reminder letter was sent to the TNSHRC on January 29, 2009,but there has been no response from the commission.
Conclusion
Proximity results in enhanced accessibility, which leads to more people approaching the commission for grievance redressal. The commission needs to decentralise its functioning to the district-level so as to make it more accessible to the common people. To make this happen, more resources, both human as well as financial, need to be invested in the TNSHRC. Moreover, the commission needs to be made independent both financially as well as administratively. Currently, it is fully dependent on the state government for its finances as well as appointments. The commission receives money from the state government in the form of grant, and has to receive approval from the government before utilising
56. http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/retired-judge-to-probe-illegal-detention-case/ article1300782.ece 57. ACHR’s Complaint to NHRC, 3 November 2008, Reference No: TN/04/2008
246 SHRC: SOCIAL AUDIT REPORT–III any funds. This causes undue delays in the commission’s functioning and also restricts commission’s autonomy. To help the commission streamline its functioning and fulfill the mandate, the state government must strengthen the commission, and provide it with the resources it needs to effectively function. The commission continues to work understaffed, and burdened with a huge number of cases which is badly affecting the proper investigation of cases and resulting in a large queue of pending cases. In Tamil Nadu, serious human rights violations cases, especially those inflicted by the police, con- tinue to be overlooked as there is no meaningful mechanism for the prosecution of the perpetrator of such crimes. The judiciary and the TNSHRC, apathetically continue to overlook such gross violation of human rights. It is not a good sign for democracy; the people are slowly but gradually losing faith in India’s democratic institutions.
TAMIL NADU 247 Chapter-II Testimonies
248 SHRC: SOCIAL AUDIT REPORT–III Police Harassment Villupuram District
V. Sundarajan
V. Sundarajan, R/o - No. 10, 2nd Street, Thirumurugan Nagar, Old Pallavaram, Chennai, on January 26, 2009, received information that my crops and irriga- I tion facilities in the land were damaged in Villupuram district. I immediately sent a telegram to the superintendent of police of Villupuram and Inspector of Police, Vanur. On January 30, 2009, I gave a complaint directly given to the Inspector of Police, Vanur. Despite the fact that P. Sukumar, former inspector of police, and P. Kavitha, for- mer sub-inspector of police, of Vanur Police Station, Villupuram district, was well aware that the property in question belongs to me, they purposefully and intentionally helped the accused Nikilan alias V. Soundararajan, to cultivate and do the sale proceed- ings of my land. Due to the influence of Nikilan, P. Sukumar and P. Kavitha, and their discriminatory attitude they gave false information to their superiors (SP and inspec- tor general of police) with an intention to suspend me from the job (gazetted officer Chennai Port Trust) by using their official capacity. My eventual suspension because of the false complaint registered by the police, in collusion with the accused, caused both severe mental agony and physical hardship to me that cannot be described in words. I spent lakhs of money by availing a loan from the bank for the cultivation of my land but everything has been destroyed by Nikilan with the support of the police. I sent a complaint to the SHRC regarding this matter on October 17, 2011, but no action was taken.
TAMIL NADU 249 Police Harassment of Disabled Person Kanyakumari District Written submission to the Jury
K. Nagarajan
K. Nagarajan, live in Kanyakumari district. I am living along with my wife and two children. On December 28, 2010, in my absence my house was demolished I by Latha and others, and on January 21, 2011, I complained to sub inspector of Eraniel police station, but he refused to accept the complaint and didn’t take any action. Then, I complained to the higher authorities, and filed a private complaint in magistrate court in Hiraniyal (CC No. : 57/2011), where the matter is pending. Thereafter, the accused threatened me with dire consequences and asked me to with- draw the case. On August 28, 2011, I, my wife and my children were brutally beaten which caused severe injury. I was admitted to the hospital. I informed the police about the incident at the hospital. Instead of taking action against the accused, the police ar- rested and filed a complaint against me and my family. Police sub inspector Chen- thilvel Kumar and other policemen of Eraniel police station colluded with the other side and harassed us. In response, I sent the complaint to the SHRC. The complaint, with Case No. 8583/2001, against Latha and other civilians were closed, with order dated November 8, 2011, stating it to be outside the purview of the commission. The complaint, with Case No. 10371/2011, against police harassment was forwarded to the police (superintendent of police) only for further investigation, with order dated March 1, 2012 and thus closed by the commission.
250 SHRC: SOCIAL AUDIT REPORT–III Police Atrocity Kancheepuram District Written submission to the Jury
V. Paramasivam
he matter involves the illegal sand mining done in the Chengalpattu area of Kancheepuram district. I, V. Paramasivam, R/o – Kamarajar Nagar, Chen- Tgalpattu, Kancheepuram district, pointed this out to the superintendent of police during a public hearing on June 23, 2012. I submitted a complaint regarding the same to the SP but the SP rejected the complaint, threatening me to not act smart and also to be ready to face dire consequences. After receiving such a threatening response from someone who is supposed to be protecting my rights, I complained to the Tamil Nadu SHRC on July 12, 2012. The SHRC closed the complaint, with Case No. 5905/2012, by the order dated July 25, 2012, by forwarding the complaint to the Inspector General of Police (IGP), North Zone, Chennai and took no steps to provide me any protection from the SP. Now, the same police against whom I complained will now investigate the matter, and so I continue to live in fear now.
TAMIL NADU 251 Harassment of a Woman Chennai District
Lalitha Nagarajan
Lalitha Nagarajan, is a resident of Pallavan Nagar, Mudhal theru Injambakkam, Chennai and work as an insurance agent. During the period of 2002 for insur- I ance purpose I approached Dr. VS Nazar, who was practicing in the life help centre for the handicapped. During one such visit the doctor gave some medicine to me and I immediately became unconscious. He subsequently misbehaved with me and tried to threaten me with the photos he had taken while I was unconscious. Against the action of the doctor I approached TV Madhan Kumar, general secretary, National Legal Rights Protection Council, and he took fees from me and informed me that he will send legal notice to Dr. VS Nazar. I asked for a copy of the notice but Madhan Kumar refused. Madhan Kumar then informed me that the doctor replied to the legal notice sent to him on my behalf. I asked for a copy of the reply sent by the doctor but Madhan Kumar did not give me that copy either and also forced me to drop the complaint against the doctor without giving any proper explanation. Madhan Kumar has instead tried to cheat me by colluding with the doctor. Mad- han Kumar is not giving back the copies of the document. I do not have any idea about the current status of my case. The actions of Madhan Kumar are inhumane, cruel and brutal. Madhan Kumar has failed to perform his duty as a public servant to support the underprivileged. Madhan Kumar without any consideration, colluded with the ac- cused, and worked against me. Therefore, I sent a complaint to the SHRC on November 14, 2011, asking them to intervene in this matter and provide relief to me from such harassment. Instead, the SHRC closed my complaint and forwarded the case to the commissioner of police, Chennai. No action was taken by the commission.
252 SHRC: SOCIAL AUDIT REPORT–III Police Atrocity Vellore District
Lakshmanan
, Lakshmanan, resident of Singapadi village, Ananganallure post, Gudiyatham Taluk, Vellore district, is an active member in the awareness committee organised Ifor eradication of illicit liquor. I assisted one of the victims to lodge a complaint to the higher police officials for taking legal action against Mr. Pughazh, sub inspector and other policemen of Veppanguppam police station for their excesses in ransacking the house of one Soundharajan. Hence enraged, they planned to take revenge on me. On April 07, 2007 I went to the police station for enquiry and returned back to my house in a two-wheeler near Polur village via Mathanoor. Mr. Pughazh and his driver Padmanapan both in police uniform threw acid on the face of the victims and caused grievous injuries. In the complaint filed by me to the TNSHRC on October 09, 2007, the commis- sion passed an order on July 29, 2011 (Case No. 4535/07), in which it recommended the government of Tamil Nadu to direct the DGP, Chennai to entrust the case of Ambur police station as Case No.98/07, to some other investigation agency which is deemed to be fit for speedy investigation and to find out the real culprits who threw acid on me and take appropriate action as per law. This order came three years and nine months after the complaint was initially filed. Since then, nothing has happened. I am yet to get any relief.
TAMIL NADU 253 Fake Police Encounter Dindigul District Victim’s wife D. Sumathi deposing the case
Late Deivendran
D. Sumathi, W/o Late Deivendran, complained to the TNSHRC about the fake encounter of my husband Deivendran, who was a life convict in Trichy central I prison. My husband escaped from police escort on February 28, 2008 at Inam- kulathur on the way to Trichy prison. A special police team arranged to track down him. Finally, the special team arrested my husband on January 20, 2009 at Kariapatti, Virudhunagar district. After the arrest, he was taken in the police vehicle to Dindigul. On way to Dindigul, my husband was killed by the police at Perumal Kolipatty Vil- lage, Athur Taluk, Dindigul district. The police justified it as an encounter killing. On January 29, 2009, I sent a written complaint to the TNSHRC against police personnel about this incidence, and the SHRC registered the complaint with Case No. 1021/09/HM1. The superintendent of police, of investigation division of SHRC, interrogated me and other witnesses on February 16, 2010 and February 17, 2010 at the government guest house, Theni. But after enquiry there was no intimation from the SHRC, hence I asked for the status of the case through RTI. Later, further enquir- ies were done to the SHRC, in total 11, but still the case remains pending in SHRC.
254 SHRC: SOCIAL AUDIT REPORT–III Domestic Abuse and Police Inaction Chennai District Written submission to the Jury
Durai Raj
Durai Raj, resident of 3/22, Pnniyamman Koil Street, Molivakkam, Porur, Chennai, is denied right to live with my children, aged 17, 15 and 12, by my I wife’s mother and brother. They first forced me out of the house. I am currently living in a rented house. I have bought properties in my wife’s name for my children’s good future, but now my brother-in-law is trying to usurp them from me. On May 21, 2011, a fight happened over a small issue and I was thrown out of my house. Now, my three sons are not going to school. Instead, they were forced to sell liquor by their mother. When I complained to police regarding this, they took no steps to stop it. My sons are being corrupted. I complained to the TNSHRC on November 20, 2011, (Case No. 9028/2011), regarding this. But the commission instead directed me to the commissioner of police of Chennai to inquire into the matter, without even informing me. I was called for inquiry twice by the local police, and they told me that the TNSHRC is suggesting to shift the matter to the family court. A long time has passed since I sent the complaint to the SHRC but there has been no communication to me from the SHRC. Whatever I know about my case has been from the police only.
TAMIL NADU 255 Denial of Fair Access to Transport Services Chennai District T. Karthikeyan deposing the case
PASSENGERS of AUTO-RICKSHAW
T. Karthikeyan, resident of Meigai Vinayakar Koil Street , Kumaran Colony, Vadapalany, Chennai, filed this complaint with the TNSHRC on February 04, I 2011, to seek redress for the existing plights and difficulties faced by auto rick- shaw users. Also, my exigency in work forces me to use an auto-rickshaw as a medium for travel to different places in the city. Like me, lakhs of commuters are using auto rickshaws to reach their destination on a daily basis. The increase in population and insufficient number of MTC buses compel poor commuters to approach other alterna- tive services to reach their destinations. This situation is badly abused by auto-rickshaw drivers due to inaction by the transport commissioner. The unwanted argument for unwarranted auto fare and destination are common between the passengers and auto drivers and it increases the everyday harassment, hardship and agony of the passengers. The Motor Vehicles Act, 1988, is the principal central legislation governing the transport system in the country, and as defined in section 2(7), “contract carriage” as a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate on a time basis, whether or not with reference to any route or distance or from one point to another. But the authorities have completely ignored this definition and put the general public in dilemma. There is a gross violation of human rights from the side of the authorities who were controlling the auto rickshaws in city. The authorities are responsible for inform- ing the general public about the fixed fare through the media and other public aware- ness campaigns. There are no facilities to make available the complete details about the prescribed minimum fare as per the kilometre to the passengers. Exorbitant or arbi- trary fare collection by the drivers is due to the lapse from the side of authorities. Fare chart or automatic billing system in the meter box can help commuters, particularly senior citizens, female passengers, and those coming from outside the city. Also, necessary changes in the fixed fare, as per the changing prices in the market, is required to be put into practice by the authorities to avoid the arbitrary fixation of fare by the auto rickshaw drivers. The inaction and irresponsibility from the side of the authorities put the passengers in great trouble and the auto rickshaw journey is a
256 SHRC: SOCIAL AUDIT REPORT–III terrifying experience in Chennai. The timely changes in the fare can bring the mat- ter under control. But the respondents are not doing so. It is the laxity in the part of enforcement authorities which allows drivers to continue with their unruly behaviour towards the commuters. The TNSHRC has not taken any steps regarding this even though 18 months have passed since my complaint was sent to it.
Police Abuse of a Woman Villupuram District Victim’s husband V. Subramaniam deposing the case
Mrs. V. Subramaniam
n November 5, 2011, I, V. Subramaniam, went to Villupuram Taluk police station as per police direction for an enquiry. The policemen there used very Ovulgar words against my wife. I proceeded to ask why they were using such abusive language towards my wife and whether they would use the same words against their own family members. Because of asking this, all of them severely beat me. The above matter was put before Tamil Nadu SHRC on December 15, 2011, registered as Case No. 9970/2011. The complaint is still pending in the commission.
TAMIL NADU 257 Violation of Woman Rights Chennai District
S Sumathi
S Sumathi, resident of Barathy Nagar, 10th Street, Korukkupattai, Chennai, got married on 18.6.1989 with G. Sekhar. He was working at Chennai Corpora- I tion, Division 31, Mandalam 6 as a last grade worker. We had two children born out of our relationship: one Son and one Daughter. My son is 19 years old and doing his degree in B.Com and my daughter is 21 years old. My husband, in 2004, left home and started to live with another woman. I complained to the local police station H6, Kurukkupattai. A Police officer took him to a police station, along with the girl, and after that my husband came back with me. Again, in January 2005, he went away from the house. I waited for two months but he did not come back. So again I gave a complaint to CM cell, Commissioner of Police and local Police Station. Police officers enquired the matter and informed that my husband is living along with another lady and closed the matter. I went to his work place and I got information that he has informed higher Official that he is discontinu- ing his work. After a long leave he again joined work on 2010 in June month. When I received this information I went to his office to see him. After several attempt I met him in January 2011. He told he is ready to give me monthly maintenance. But every month I have gone to his work place and he has not given a single amount to me or to my children. The house which I am living along with my children belongs to my husband and it is in the name of my husband’s mother. After my husband abandoned me and my children, I did housekeeping work and paid for my children’s studies. Now my daughter is 21 years old and she is completed her BCA and my son is doing his degree. All these years I struggled to bring up my children and now I am physically very weak and my health is deteriorating. My husband is now earning more than fifteen thousand monthly and he has not given a single amount to me or my children. Now he is threatening to sell the house in which we are living. He also physically assaults me and my children. My son is 19 years old and every now and then my husband tries to beat my son. Our life is also in danger at present. If my husband sells the house then I and my children become homeless and it shall be a very hardship for my girl child who is 21 years old. So, I sent a complaint to the TNSHRC on 13/10/11 (Case No. 8380/2011), to enquire about the matter and to ask for protection from my husband and to direct my
258 SHRC: SOCIAL AUDIT REPORT–III husband to give monthly maintenance to me and my children and to direct him not to evict me and my children from the above mentioned house. The TNSHRC has not done anything anditclosed my matter on 01/11/11, terming the matter to be outside of the purview of the commission.
Death due to Police Torture Chennai District Victim’s mother Thamaraivani deposing the case
Late V. Babu
Thamaraivani, live in Periyar Street, Moolaikadai, Chennai. My son V. Babu was arrested on 08/10/2011 on a chain snatching case and was booked under sec- I tion 397, 336, 341 and 506(2). He was kept in illegal detention for three days from 8th October to 10th October where he faced continuous torture and abuse from policemen. On 11th October, my son Babu was remanded in Puzhal Jail along with other two others, Premchand and Vijaykumar. On 20th October, V. Babu was released on bail. His health condition got rather bad because of the continuous police torture he faces while in custody. We took him to Stanley Government around 4:30p.m. but treatment was denied because he did not have the right police paperwork. Later, Babu died at around 5:30p.m. In such a grave matter of death due to police torture, the TNSHRC has failed to take any action, even though the complaint was sent to it on 02/11/2011.
TAMIL NADU 259 Police Harassment Through Kangaroo Courts Nellai District Written submission to the Jury
G. Ravishankar and others
G. Ravishankar, complained to National Human Rights Commission (NHRC) about Police officers of Nellai district, who collude with local Goondas, and who I cause trouble for the Village people by running Kangaroo Courts. I am badly affected by the action of the Police officers and the Kangaroo Court run by them: I am not allowed to do repair work in my house, which is badly damaged. My aged parents and find it difficult to stay in the house as it is on the brink of falling down anytime. It leaks whenever it rains. Against this constant harassment by the police in my village, I sent a complaint to the NHRC praying for its intervention. The NHRC transferred my complaint, with Case No. 1632/22/45/2011/OC/M-3, dated 05/09/11, to the Tamil Nadu SHRC, on 08/12/11, under section 13(6) of Protection of Human Rights Act, 1993, terming my matter to be belonging to SHRC. Since then the TNSHRC has not taken any action in the matter.
260 SHRC: SOCIAL AUDIT REPORT–III Negligence by Authorities and Police Harassment Thoothukudi District Written submission to the Jury
Vellusamy
Vellusamy, resident of Panikkarkulam, Thoothukudi district, got electrocuted by a live electric wire lying open on the earth because of the negligence of the wind I mill owners. Because of this I suffered burn injuries all over my body. When I went to complain about this to the Kayathar police station, Police Inspector Praveen Kumar and Sub Inspector Arulappan refused to register my case against the windmill owners. To the contrary, the police threatened me with dire consequences and chased me away. Later I went to the TNSHRC with my complaint, registered as Case No. 9435/2008 and dated 14/10/2008. On 01/10/2009, and based only on the SP report, my complaint was closed. The report termed my allegation against the windmill own- ers as false, and said that I got electrocuted at my own cattle shed. The TNSHRC also failed to take any action against the policemen, who threatened me with dire consequences. It is important here to mention that the DSP of Kovilapatty issued a summon to me once, regarding the investigation of the case, on 16/01/2009, where I gave a written statement that the facts in the complaint are true. After that there was no com- munication from any authority.
TAMIL NADU 261 Illegal Detention and Torture of Dalits by Police Thriuvarur District S. Palaniammal deposing the case
Dalits of Vittukatti Village
n Vittukatti Village, in May 2003, three murders took place under suspicious circumstances. In connection with the above incident, police officials from the IThiruthuraipoondi and Thirukalar Police Stations took 40 Dalits from Vittukatti Village including the following Victims (Tmt. Tamil Selvi, W/o Govindaraj, Tmt. Jayalakshmi W/o Kalidas, Mr.S.Vedanayagam S/o Sivasamy, Mr. Natarajan S/o P.C. Nagooran, Mr. P.S. Mohan S/o P.Subbiahm, Mr.Baskaran S/o Kanniyan, Thiagaraja Pura street, Mr. T. Ravi S/o Dhanikodi, Mr. Sasikumar alias Swaminathan S/o Dham- odhran, Nadutheru, Mr. Murugesh S/o Vellaiyan, Keelatheru) to the Police Station and detained them illegal for three days. They were scolded repeatedly, tortured, and werethreatened with death. People’s Watch took the victims all the way from Vittukatti village, Thriuvarur District to Chennai and produced them before the TNSHRC to present their com- plaints on 23.5.2003. The TNSHRC assigned the above case nos. (3371/03, 3372/03, 3373/03, 3374/03, 3375/03, 3376/03, 3377/03, 3378/03, 3379/03 respectively) to the complaints of the victims. The investigation wing of the SHRC came to Thriu- varur and questioned the victims. While the enquiry was still pending before the Commission, the perpetrators, the police, attempted to save their own skin by using the poverty of the victims. The police attempted to bribethe victims by offering money in order to escape from the clutches of the law. The bribery attemptwas duly reported by NGO People’s Watch Executive Director (ED), in person, to the Commission on June 26, 2009, after already sendinga detailed memorandum on June 24, 2009. But the accusation of bribery was not made part of the file by the Commission, and it was not considered during the course of the enquiry. The perpetrators succeeded in obtaining an order of closure,and disposal of the case as not pressed and so withdrawn on July 26, 2010, after a lapse of seven years and two months.
262 SHRC: SOCIAL AUDIT REPORT–III Atrocity on Child Resulting in Death Kanyakumari District Victim’s father Selvamani deposing the case
Late Aaroosh
he incident is regarding my minor son, Aaroosh, who was 14 year old son when he committed suicide by falling in front of a running train. He commit- Tted suicide because of the torture meted out by the school teacher for having given a love letter to a female student. I, Selvamani, S/o Muthaiyan, live in Kalkulam, Kanyakumari District. My son was subjected to brutal assault and torture by the teachers of the school for having given a love letter to a girl student and thereby he died by committing suicide by fall- ing before the running train. The incident is of St. Lawrence Higher Secondary School, Madathittuvilai, Vil- lukkuri where my son Aaroosh was studying in ninth standard. On 26/02/2009, the letter was given. The teachers Mr. Mariyaraj brutally beat up my son for that and later Mr. Gnanaprakashan and another teacher also did the same with him. Also, the father of the girl, to whom the letter was given to, also came to school and beat Aaroosh, in front of the Headmaster, Mr. Agustin Vannivel, and other teachers. The other students were told to keep quiet. My son, ashamed of such torture and harassment, committed suicide on March 2, 2009. I should point out that the girl student, who previously studying there in Plus-Two,later immolated herself because of sexual harassment by one teacher of the school. A case was registered in Railway Police Station, Nagercoil, with Case No. 44/2009 on March 2, 2009, only U/s 174 of Cr.PC. The sections 341, 324,201, 306 and 506 (i) of IPC has been excluded from the FIR. Still, no action has been taken against the perpetrators who tortured my son, and forced him to take such a drastic step. I sent a complaint to the TNSHRC on March 17, 2009, and the same was done by People’s Watch on 06/05/09. Both complaints (bearing Case No. 3958/2009 and 4232/2009) were closed by the TNSHRC in May 2009. They merely forwarded the complaint to the Superintendent of Police and Chief Educational Officer of Kanyaku- mari to look into the matter.
TAMIL NADU 263 Police Torture of a Handicapped Person Virudhunagar District
Michaelraj
Michaelraj S/o Mr. Kulandaisami, resident of RC, North Street, Sathur Taluk, Viruthunagar District, am a handicapped person, with no sight in my right eye I and am not able to use my right leg because of an accident. Previously, I used to do Coolie work, but after this accident I am forced to stay at home. I went to Sathur Police station on 29/01/09, to attend an inquiry as called for by the Sub Inspector of Sathur Police Station on the basis of a false complaint, under Case No. 57/09, u/s 75, TNCP Act, for making a public disturbance in a drunken state. At that time the SI, Mr. Santhose Kumar, tortured and brutally beat me in the name of inquiry and inflicted many injuries. He also threatened to kill me. A complaint regarding this torture was first sent by People’s Watch on 04/09/2009. Two subsequent reminder letters were also sent on 08/04/10 and 15/09/10, but there has still been no response from the TNSHRC.
Death in Police Custody Palakarai PS, Trichy District Victim’s father D. Panduragan deposing the case
Late Kesavan
D. Panduragan, sent a complaint to Tamil Nadu State Human Rights Commis- sion on October 22, 2011, to take necessary action against the police officer I Prabhakaran of Palakarai Police Station, Trichy District, who murdered my son Kesavan, after taking him into police custody. The TNSHRC, though registered the complaint with Case No. 8718/2011, but disposed it on November 15, 2011, by forwarding the matter to Commissioner of Police, Trichy, and thus closed the case at their end.
264 SHRC: SOCIAL AUDIT REPORT–III Police Torture of a Dalit Sivagangai District Written submission to the Jury
Velanganni
Velanganni, S/o Samuel, Hindu parayar (Scheduled Caste), live in Malayur and post, Illayangudi (Via), Sivagangai District. On 02.07.2007, a policemen from I Ilayangudi Police Station came to my house and took me forcibly to the police station in the name of an inquiry in connection with a missing person named Sathya- moorthy, who is a friend of mine, along with his lover Ranjani. I was subjected to brutal torture, beaten by batons, abused and also threatened by police to produce my eloped friend along with his lover to the police. The police also threatened to file a false case against me and to remand me to the prison if I failed to produce them before the police. A complaint was sent to TNSHRC on September 27, 2007, and a reminder let- ter was subsequently sent on January 8, 2008, but still the commission has not take cognisance of the matter.
TAMIL NADU 265 Atrocity of a Dalit Human Rights Defender Thiruvannamalai District Written submission to the Jury
Annadurai
Annadurai S/o Manickam, belong to Parayar (Dalit) community, resident of Kovil Mathimangalam village and post, Polur Taluk, Thiruvannamalai district. I I work for dalits and the poor people of my area. I sent a complaint about the atrocities inflicted upon them to the higher authorities, and for this I was subjected to brutal torture and verbal abuse by members of the dominant Udayar caste. All this was done to stop me from helping the victims of dalit atrocities committed by the dominant caste people. Even the police at Kadaladi police station refused to register the complaint regarding the same. A complaint was sent to the TNSHRC on June 17, 2009, and two subsequent reminder letters were sent on August 20, 2010 and on March 31, 2011, The commission still has not taken steps to provide any relief.
Police Inaction Muthandikuppam Police station, Cuddalore District
Velmurugan
conflict arose between the victim Velmurugan and his friend’s brother and the police took the side of the victim’s friend’s brother. Severe bodily injury Ahappened to Velmurugan and he was admitted in the hospital, but still the police especially the police inspector of Muthandikuppam police station, Cuddalore district, would not take any action against the perpetrator. The complaint was sent to the TNSHRC by the human rights organisation SASY on May 12, 2011, for tak- ing necessary action against the culprit police for their inaction. There has been no response from the TNSHRC.
266 SHRC: SOCIAL AUDIT REPORT–III Atrocities on Dalits and Police Inaction Coimbatore District Gautam Shakthivel deposing the case
Dalits of Salarapatti Village
n February 18, 2008 at 3 pm the dominant Vanniar community people at- tacked the Arunthathiyar (dalit) community people in Salarapatti village, OUdamalaipettai taluk, Coimbatore district. The Vanniar called the dalit peo- ple “chakkilia thayolikla” (a verbal abuse) and caused injuries to them, because of a disagreement regarding the use of a community hall. In the incident that took place, Veerasamy, M. Subramani, C. Anandan, D Masani, L. Boopathy, Chinnal, Velammal and eight others belonging to dalit community and living in Salarapatti, were injured as a result of a brutal attack by the dominant Vanniar community people. The police were there but they remained failed to help the dalits. To the contrary, the police encouraged the perpetrators to beat the dalit people by giv- ing them their iron edged police batons. After the incident, the victims were arrested and the police registered a case on behalf of the perpetrators. Though a complaint was sent to the TNSHRC on March 19, 2008, and a re- minder letter was sent on March 19, 2011, the TNSHRC continues to ignore this serious dalit atrocity matter.
TAMIL NADU 267 Police Torture Sivagangai District Written submission to the Jury
Fathima and her husband
Fathima W/o Sandiagu, resident of Nedugulam Eruppu, Ulagoorani, Siva- gangai district, and my husband were tortured during an enquiry in a theft case, I at Kalaiyarkoil police station. We were held in illegal custody from August 19, 2007 to August 22, 2007, and were beaten with batons. I was beaten in an all wom- en’s police station, Sivaganga by Sub Inspector Ms. Muthulakshmi and Constable Ms. Manjula. My husband was brutally tortured and beaten by Constable Mr. Pitchai Muthu, Constable Ramachandran, Sub Inspector and Crime SI, and was forced to confess to the crime. A complaint was sent to the TNSHRC by both me (on 14/09/2007, Case No. 7235/2008) and People’s Watch (on 28/06/2008, Case No. 6119/2008). The TN- SHRC closed both complaints (order dated 05/07/12 and 01/08/12 respectively) on the basis of a report by the SP, Sivangangai only, which termed the allegation against the police as false. I was not able to even tell my side of the story. The TNSHRC mentioned, in its final order, that a summons was sent to me and my husband for ap- pearance before the TNSHRC, but we received no such summons.
268 SHRC: SOCIAL AUDIT REPORT–III Police Torture of a Dalit Thiruvarur District Written submission to the Jury
C. Ravi
C. Ravi, resident of Kottaiyur village, Thiruvarur district, belongs to the Kuravar community (Scheduled Caste community). I was picked up on March 01, 2007 I at night at about 10 pm from my house by policemen from the Needamangalam police station. Thereafter, I was kept in police custody for five days, from March 01, 2007 to March 05, 2007, and was brutally tortured by the head constables Mr. Silam- buselvan and Mr. Muthusamy. I was beaten with iron edged batons. They made me confess to a crime that I did not commit. I was stripped in the police station, brutally beaten and was even denied drinking water and food. I was forcefully made to sign a paper. A false theft case, Case No. 03/2007, U/s -380, was put against me. Because of this torture I am affected both physically and mentally, and am unable to now work for my livelihood (selling salt in streets). My father sent a complaint to the DC, SP, and CM special cell in Chennai, but no action was taken by any of them. Later, a complaint was sent to the TNSHRC on No- vember 12, 2007 by People’s Watch (Case No. 7120/2007). Now, I have been asked to attend enquiries by the TNSHRC in places that are far from where I reside, including in Perambalur, Ariyalur and Trichy (alternatively at repeated intervals from the end of 2008 till date). The case is being dragged on by the commission. And because of this, I am suffering physically, mentally and financially, running from one place to another.
TAMIL NADU 269 Police Torture Chennai District U. Sudha Udhayakumar deposing the case
U. Sudha Udhayakumar and her Husband
U. Sudha Udhayakumar, on October 19, 2011, sent a complaint to the TNSHRC. My husband was put under a false case in which he had to take bail. I On November 10, 2011, the police came to my home and asked me to go to the police station for an enquiry. Police told me that there is a complaint against me and my husband but I told them that my husband is not at home. I also tried to complain about it but they refused. On November 11, 2011, police took me to Puzhal Jail, in the case filed against me and my husband. My husband was remanded. After we came out on bail, police again came and took my husband. This became a frequent occur- rence: my husband would be picked up by the police and beaten. My husband was also threatened and told that he will be booked under the Goonda Act. I first complained to the TNSHRC on November 29, 2011 regarding this police torture and requested relief in this regard. The complaint (with case No. 8420/2011) was closed by the TNSHRC on November 2, 2011 by forwarding the matter to the commissioner of police, Chennai. The second complaint dated March 8, 2012–SHRC No: 9467/2011, was filed to take action against the police officers in J2 police station. The police is supporting the real culprit and threatening the complainant and her husband. Since, the first two complaints have not been properly considered by TNSHRC, a third complaint has been filed before the commission too.
270 SHRC: SOCIAL AUDIT REPORT–III Murder of a Dalit and Police Atrocity Villupuram District Written submission to the Jury
Late Raja
he complaint regarding the murder of a dalit person, Raja, was sent to the Tamil Nadu SHRC by the human rights organisation Social Awareness So- Tciety for Youth (SASY) on October 08, 2009, and was registered as SHRC Case No. 2542/2010. The murder was done due to caste discrimination. There are 31 dalit families and above 300 caste Hindu families residing in the Vadipalayam village. The dalit–Parayan community, were not allowed to use the pathway by an upper caste Hindu. After the intervention of village officers and the RTO, they were permitted to use the pathway. For this reason friction arose between the groups. Starting October 2, 2009, the caste Hindus would not allow the dalits to buy provisional items from the nearby store. Drinking water was also stopped. A motor belonging to one Mani and Nagaraj were damaged by the caste Hindus, and the same complaint was given to Marakanam police station, Villupuram district. The inspec- tor conducted an inquiry and the complainant went there at 6 pm. At that time the caste Hindus set a fire in Raja’s poultry shed and when he went there he saw 30 caste Hindu people. Raja immediately informed Mani and Nagaraj, who were at the police station at that time. After receiving this information, the police sent a fire brigade to the place. But the higher caste people would not allow the firefighters to put out the fire in Raja’s poultry shed. The higher caste people beat Raja severely with bricks and wounded him with a knife. Raja became unconscious and the caste Hindus entered into his house and started to destroy all the articles in his house. An ambulance came to take Raja, but the Caste Hindu people would not allow the ambulance to take Raja. Another ambulance came to help, but Raja had died by that time. The entire dalit community - consisting of about 200 people, shifted to Nadukuppam, but they are struggling to fulfill the daily needs of their children, the women, and old aged persons. On October 4, 2009 at night, Maslilamani, son of Perumal went to register com- plaint regarding the murder of Raja, but the police arrested Maslilamani and accused him of killing Raja. The nxt day, many peoples from the dalit community went to the police station, and took Maslilamani back from police station. On October 6, 2009 some dalit women came to see their cattle in the old place but the Hindu upper caste women interrupted them and not allowed them to come. On October 7, 2009, Meenakshi Sundaram’s poultry shed was set on fire and for this crime same innocent dalit persons were arrested, and an FIR registered against
TAMIL NADU 271 them. A complaint was filed with the TNSHRC for getting compensation on behalf of Usha, wife of the deceased Raja, for an amount of Rs. 2 lakh in compensation and also employment for Usha who had to bring up her two small kids aged four years and five months. She has also asked: • To provide free rice and cereals to affected dalit families • To give direction to government official to provide support to the affected dalit persons • To take criminal action against the persons who set the fire (Crime No. 240/2009, U/s 147, 148 , 325 ,302 of IPC). • To provide protection to dalit peoples in the area • To quash the false case implicated upon dalit people • The complaint is still pending with the commission.
Police Torture of a Dalit Sivagangai District
Ragunathan
Ragunathan, son of Mr. Karuppan, south street, Thiruvallur Village (via) Ilay- angudi, Sivagangai district, belongs to the Adidravidar Pallar (Scheduled Caste) I community. On September 18, 2007, at about 4 pm, when I was returning from the Ilayangudi police station where I have gone to complain to the police against the atrocity (abuses) being inflicted on dalits in my village, but was chased away by Inspector Mr. Tholkappiyan without registering my complaint, constables Mr. Sundar and Mr. Kennady intercepted me near Kaliamman Kovil in my village. They assaulted, abused, and tortured me brutally, while in drunken state, out of caste discrimination. Thereafter, the police came to force me to compromise the matter, and they regis- tered a false case (Case No. 396/2007, U/s -294 (b) and 506 (ii) of IPC on 18/09/07) against me at Ilayangudi Police station. Later, on September 19, 2007, I complained to the SP, DC, DGP, and the special cell of CM about it but nobody took any cogni- sance of the situation. A complaint was sent to the TNSHRC on December 10, 2007 by People’s Watch organisation. The commission did not take any cognizance of my matter. Even after a reminder letter was sent to the TNSHRC on January 29, 2009, there is still no response from the commission.
272 SHRC: SOCIAL AUDIT REPORT–III Police Harassment of an Old Woman Virudhnagar District Written submission to the Jury
M. Parvathy
M. Parvathy, is a 60 year old resident of Rajapalayam, Virudhnagar district. My daughter is 31 years old and is disabled. I have to do all the work for my I daughter because she cannot function by herself. I constructed stairs to help her get down from my house to the toilet, but my neighbour objected, and with the help of police harassed me to remove the steps. The police told me that they will put false cases upon me. Already the police have taken me to the station on several occasions and they will not allow any person to come to my house. There are students coming to my house for tuition. But the police told the students that if they come to my house, a case will be made against them also. The police of Sethur, Rajapalayam, is continuously threatening me to remove the steps. So, against this continuous police harassment a complaint was filed in the TNSHRC on March 23, 2012, registered as SHRC Case No. 2605/2012. The com- mission has not done anything yet to provide us with any relief.
TAMIL NADU 273 Torture and Death in Police Custody Villupuram District Victim’s mother Rajaammbal deposing the case
Late Muthu
n September 30, 2011 the Vadpallaini police station, Villupuram district, police officers took Muthu, s/o Rajaammal to the police station and impli- Ocated him in a false theft case. The next day, at 7.30 am, Muthu was taken to identify one Raji at some place outside the police station, handcuffed, and then his body was full of blood stain. But no person named Raji was there. Relatives inquired about Muthu and Shunmukam (one of the co-accused along with Muthu). Police told the relatives that Muthu is in Vadpallaini police station and when further asked, said that an inquiry was going on and he would be released on Sunday. But on Saturday night at 2 am, Rajaammbal, his other son and her husband were taken to police station and were asked to sit in the police van. Next day morning, it was informed by police that Muthu had died due to heart attack. His body was seen in full of blood stain. A complaint was sent to the Tamil Nadu SHRC to take necessary action against the erring police officers on October 6, 2011. There has been no reply by the commis- sion. The victim’s father Rajammal is still waiting for justice in his son’s death case, which happened because of police torture.
274 SHRC: SOCIAL AUDIT REPORT–III Death in Police Custody Villupuram District Victim’s wife deposing the case
Late Ravi
he victim Ravi was murdered while he was in the custody of the following police personnel - Pasanna Deputy SP, Pandiyan, police inspector, and Chan- Tdransekhar, sub inspector of Nellikuppam police station, Villupuram district. The police took the victim into their custody from his house for a bank robbery case and all the valuables from his house were also taken by the police. Police received the signature from his wife on blank paper and told her that Ravi died while trying to escape from police custody. This matter was sent to TNSHRC on October 2, 2010 by the human rights or- ganisation SASY for the following action: • To conduct a CBI investigation • To register a case and take action against the police officers who were in- volved in the murder of Ravi and to conduct a departmental enquiry and to remove them service. • To provide protection to the eyewitness who is now under the custody of police. There has been no response from the TNSHRC in the matter.
TAMIL NADU 275 Rape and Torture by Police Madurai District Written submission to the Jury
Women Victim
he four victim women were kidnapped and raped by the police of Thiru- kovillor police station, Madurai district on November 26, 2011. The victim Twomen complained to the SP and the officer told them that he would send them for medical tests, but instead made them to wait whole day and night. These women were then tortured by female police officers. Later the matter was taken before court. Five policemen were suspended and the government announced Rs five lakh compensation to the women. However, no criminal action has been taken against the policemen. Consequently, the women took this matter to TNSHRC through the hu- man rights organisation SASY. The complaint was sent to TNSHRC: • To take necessary action against the erring police officer. • To have the CBI investigate the case There has been no reply by TNSHRC in this matter.
276 SHRC: SOCIAL AUDIT REPORT–III False Case and Police Atrocity Madurai District Written submission to the Jury
Jagathnathan
agathnathan runs a weaving unit. The son of the village head threw a small stone at Jagathnathan and Jagathnathan warned the boy to stop. The village head re- Jtaliated by scolding Jagathnathan and abusing his caste. Both of them started fighting with each other. Then, the upper caste people joined together and beat all the lower caste people. Jagathnathan was dragged from his house with his hands tied and his clothes removed and he was beaten with an iron pipe. They put chilly powder on him. And, the person who came to support Jagathnathan, was also beaten. Police made a false complaint against Jagathnathan and took him in custody. To take neces- sary action against the police, especially the inspector of police, Avinasi police station, Avinasivattom, Madurai district,a complaint was sent to the TNSHRC on January 5, 2010 by the human rights organisation SASY. No reply or action has been taken by the TNSHRC.
TAMIL NADU 277 Murder and Police Inaction Villupuram District Written submission to the Jury
Late Paraman
he late victim Paraman was a peasant and he used to cultivate sugarcane crops. At the time of harvest a person named Mohan tried to take all the sugar cane, Tfor the water he supplied for the sugarcane crops. So, friction arose between both parties. After that when Paraman went to feed his cattle in the field, Mohan and Paraman argued again, and in the quarrel Mohan murdered Paraman and burnt his body so it could not be identified. The police of Thirunavallur police station, Villupu- ram district, also supported him and did not take any action against Mohan. Parivuran is the eyewitness in this case. To take necessary action against the real culprit, and to provide relief and justice to the wife and children of Late Paraman, a complaint was filed in the TNSHRC on May 5, 2011 by the human rights organisation SASY. The matter is still pending before the TNSHRC.
278 SHRC: SOCIAL AUDIT REPORT–III Sexual Harassment of a Woman by Police Virudhnagar District Written submission to the Jury
Thavampettanayagi
hile the victim Thavampettanayagi was getting down from bus, she was sexually harassed by Ravi, constable, North police station, Rajapalayam, WVirudhunagar district, and for this incident she went to file a police com- plaint. But police inspector Nagarajan refused to register the FIR. Only after sending requests to higher authorities, a complaint was registered and the case was taken be- fore the court. Consequently, Ravi and his people started to cause trouble for the complainant to pressure her to withdraw the case. To take action against the police officers, who were causing harassment and threatening Thavampettanayagi’s life, a complaint was filed with the TNSHRC by the victim on June 7, 2011, registered as SHRC Case No: 7602/2011. The commission has failed to take any action against the guilty policeman in this serious matter of sexual harassment of a woman by the police, who continue to harass her.
TAMIL NADU 279 Land Encroachment, False Case and Police Inaction Virudhanagar District A. Rangaswamy deposing the case
S.M. Murugan
n Virudhanagar district, some politicians encroached upon government property which was kept for the Adi Dravida people. The complainant, Rangaswamy, pub- Ilished this news in the newspaper. One Vellusamy quarrelled with S M Murugan about this and Murugan took the matter before the police. But police inspector Vijaya- kumar of the Thalavaipuram department, instead of taking action against the accused, beat S M Murugan severely and filed an FIR against Murugan (Case No: 187/2005, IPC Section 341, 506(1) ) Even when the matter was taken before higher authorities, no action was taken. So, a complaint was sent to the TNSHRC on December 16, 2005, registered as SHRC Case No: 8435/2005, to provide relief. No action has been taken by the commission to provide relief to the victim.
280 SHRC: SOCIAL AUDIT REPORT–III Death of a Dalit and Police Inaction Theni District Victim’s wife deposing the case
Late Chinnarasu
he victim late Chinnarasu, son of Mr. Shanmugam Hindu Sakkiliar (SC) resident of North Street, Appipetti in Hlagapur village and Panchayat post, TUthamapalayam Taluk, Theni district was working as a pump operator for overhead tanks supplying drinking water, starting from 2001 at Appipetti in Alagapuri Panchayat. He was making persistent demands on the village panchayat president and her husband to pay the full amount of the salary fixed by the government. There was an argument. Later, the victim was found dead and was allegeded to have committed suicide by hanging himself near the VAO office next to their vil- lage bus stop. Even though a specific complaint was made against above persons, no criminal case was ever filed by the police against them. A complaint was sent to the TNSHRC on April 21, 2011 by the human rights organisation People’s Watch – Ma- durai. The complaint is pending unnumbered.
TAMIL NADU 281 Dalit Atrocity Tiruppur District
Palanisamy
n August 5, 2009, when the victim, Palanisamy, a dalit and son of N. Kup- pan, Hindu, Arunthathiyar Community (SC), resident of No. 4/2002 Arun- Othathiyar colony, Chetty Pudur village, Alathur post, Avinasi Taluk, Tirup- pur district, was returning from work, the people of the dominant caste (Gounder) intercepted him on Thandukkaranpalayam river bridge, and assaulted and tortured him brutally while in a drunken state, out of caste discrimination. A complaint was sent to the TNSHRC on January 6, 2010, by the human rights organisation People’s Watch – Madurai, and registered as SHRC Case No.2618/10. The complaint is still pending at the commission and was not yet taken up for enquiry.
282 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity Coimbatore District Written submission to the Jury
C.P. Kumar and Others
n April 26, 2009, the dominant caste people of the victim’s village forci- bly entered into the residential area where the dalit people live, brutally Oassaulted and tortured them, including the dalit victim C P Kumar s/o Ch- innapalani Hindu Arunthathiyar caste (SC), resident of Maduraiveeran Kovil Street, Rasakapalayam, Puliyampatti post, Pollachi Taluk, Coimbatore district, and inflicted injuries on them out of caste discrimination. The complaint regarding this brutal assault on the dalits was sent by the human rights organisation People’s Watch – Madurai to TNSHRC on August 17, 2009, and registered as SHRC Case No. 7346/09. The case was disposed of by the commission, with order dated March 17, 2011, only on the basis of the report of the superintendent of police (SP), Coimbatore district, and without asking for any comment from the complainant on the police report, the sole basis of the order passed by the TNSHRC in this case. Thus, it is very clear that the commission is functioning in a fascist manner by giving no regard to the due process of law and justice.
TAMIL NADU 283 Medical Negligence Resulting in Death Thiruvannamalai District Written submission to the Jury
Late K. Mahalingam
he victim, a student named Mahalingam, son of Raja Ram, resident of No.28, Pallikoda Street, Alathur village & post, Sengam Taluk, Thiruvannamalai dis- Ttrict, while he was studying for examination and using a chimney lamp, was bitten by a poisonous insect on October 12, 2008. The victim was taken to govern- ment hospital but the doctor on duty, Dr. Banumathi, did not attend to him immedi- ately and due to her negligence, the boy died. The complaint regarding this medical negligence was sent to the TNSHRC on January 16, 2009 by the human rights organisation People’s Watch – Madurai, and registered as SHRC Case No. 1341/09. The case is still pending in the commission.
Harassment at Workplace Coimbatore District Written submission to the Jury
Rajathambi
n April 28, 2012, Rajathambi, who was an employee at RMKV, Coimbatore district, took leave with the consent of his managers. But as his close relative Odied in an accident, he had to extend his leave. He informed his employers on phone but when he rejoined duty on May 6, 2012, he was threatened and manhan- dled by the accused employers. He filed a complaint with the TNSHRC on June 26, 2012, registered as SHRC Case No. 5277/2012, to obtain relief from this harassment. But the TNSHRC closed the complaint on July 10, 2012 terming it to be outside of its purview and thus failing to provide any relief to the victim.
284 SHRC: SOCIAL AUDIT REPORT–III Torture Leading to Disability and Police Inaction Villupuram District Victim’s wife Poopathiyammal deposing the case
Vellyan
y husband named Vellyan was taken away by one Palaniyaddi, a quarry owner and was physically harassed by him. Palaniyaddi made Vellyan eat Mdefecation. As a result of this, my husband ran away. When I finally saw him several days later, he was found to be mentally ill. The Villupuram police refused to take any action against the accused quarry owner. A complaint was filed before the TNSHRC on February 16, 2012, by the human rights organisation SASY. There has been no reply by TNSHRC.
Rape of a Disabled and Police Inaction Villupuram District Written submission to the Jury
Antoniammal’s Daughter
n April 16, 2012, Antoniammal’s deaf and dumb daughter was raped by a man named Devarajan. A complaint was given against Devarajan on April O17, 2012, to the police. But the police made Antoniammal and her child sit in the Nellayanpillaipettar police station, Villupuram district the whole day up to 6 pm. Still no action was taken by the police. A complaint regarding the rape and police inaction was sent to the human rights organisation SASY on April 25, 2012, and they filed a complaint with the TNSHRC. There is yet no response from the TNSHRC.
TAMIL NADU 285 EXPERT COMMENTS Ossie Fernandes Director, Human Rights Research and Advocacy Foundation
Human Rights in Tamil Nadu - A Farce
he conventional and establishment theory of human rights presumes a homo- geneous civil society and a strong and legitimate democratic state that will Tprotect the rights of life, liberty and freedom of the individual. This is a very narrow perspective on protection of human rights and the character of the State in a capitalist society. So is the case with Tamil Nadu state and relationship with human rights. My perspective and practice of human rights is universal in its applicability but accommodates the specificities of our pluralistic society. It is based on the indivisibility of human rights rooted in the mandate laid down in UDHR, the Indian Constitu- tion, the two main Covenants on Civil and Political Rights and Economic, Social and Cultural Rights and several International Treaties ratified by India. This implies that while the State must be continuously made accountable for observance of human rights standards, promotion and protection of human rights requires a continuous democratic resurgence in civil society specifically from among intellectuals and the oppressed / marginalised classes. Thus Human rights are importantly collective rights of communities and peoples to the right to continuing sustainable development, eco-systems and livelihoods and non-discrimination on the basis of property, power, caste and gender. Democracy, de- velopment and respect for human rights and fundamental freedom are interdependent and mutually reinforcing. The right to sustainable development is a universal inalien- able right and an integral part of fundamental human rights. Human rights are central for democratic development. Popular participation and transparent governance are essential pillars of sustainable development.
Corporate Tyranny and Human Rights Violations Human rights must be understood in the context of global corporate power. These are the giants that exploit and undermine human rights on a world scale. The Indian State functions as a mere agent of this corporate power, at times, managing contra- dictions between various corporate giants. The violations of human rights caused by this corporate tyranny is enormous and the biggest challenge to the human rights movement. The government of Tamil Nadu is constantly playing up to global finance capital and the corporate service sector and has recently signed MoUs with corporate
TAMIL NADU 287 giants acquiring thousands of acres of agricultural lands and common land and water bodies and handing them over with low tariffs and tax holidays, depriving thousands of families their productive lands, livelihood and basic services.
The Undemocratic Tamil State – Implications for Human Rights The biggest hurdle for human rights is undemocratic state and ruling regime in Tamil Nadu which is dependent on a brutal police state, the mafia, an unaccountable and corrupt political party, and an a autocratic executive. All these undemocratic insti- tutions functioning as one super state defeats the Indian Constitution and the par- liamentary system of governance, despite its class character and pro-rich bias. The Constitution is a visionary bundle of rights of sovereignty, secularism, equality, liberty, democracy, justice - social, economic & political and a socialist society. The goals of this Constitution have hardly benefited 10 percent of the population. This is so be- cause the State consistently takes organised efforts together with different fractions of the bourgeoisie to subvert the Constitution and citizen’s bodies and people’s move- ment have found it difficult to work. The real enemy is not our neighbour countries, it is transnational giants like Monsanto, Du Pont, Larsen & Tubro, Gammon, Hyundai, Uni Lever, FORD, Mitsubishi & Cargill, Nokia, Samsung, Hitachi, Sony and Sanyo whose devilish designs in India ruin lakhs of farmers’ livelihood and destroys our control over our precious resources, services, small scale manufacture, seeds and water. The path of development in Tamil Nadu has led to very destructive developments and major human rights violations. Spiraling prices, unemployment and under em- ployment with very low wages, displacement of people due to mega dams and mega- development projects, export-oriented agricultural and industrial policy, the free reign given to foreign capital based companies are proving to be detrimental to the very survival and growth of the small-scale and informal sector and the ruin of our finance market. Non-implementation of land reforms, an education system that pushes out majority of children, shoddy functioning of primary health care centres have alto- gether pushed the bulk of our population to a situation of not being able to fulfill their basic needs in terms of food, shelter, clothing, education and health care. Even today a very large percentage of urban and rural poor do not depend for their livelihood on the globally linked market. The rise of the global market means their destruction. It is from nature and biomass and the informal unorganised sector from which they de- rive their essential needs, goods and services. The state does very little to protect and strengthen this sector.
Denial of Basic Civil and Political Rights Civil and political rights violations in Tamil Nadu have crossed its limit. It seems that human rights do not exist on a day to day basis. The reason for its non-existence is the unaccountable functioning of state and the non-functional state human rights com- mission. It is the duty of the state to protect the rights of its citizens. Unfortunately, the members of the legislature, executive, political functionaries and mafia work to- gether and no separation of power exists. This results in a corrupt and undemocratic state in Tamil Nadu. In addition to it, the SHRC and NHRC does not use its powers
288 SHRC: SOCIAL AUDIT REPORT–III for defending human rights. Though the powers of SHRC are wide such as the right to question the state in any court of law, right to implead itself in necessary cases, right to take suo moto cognisance, right to do or promote research on human rights, right to summon or furnish any official documents, right to award compensation and recommendation etc, the powers are hardly utilised by the commission. Therefore, the situation of NHRC and SHRC is weak. Tamil Nadu is known for its mono culturisation and fast destructive development and it is also famous for its highest number of rape, custodial deaths and fake en- counter killings. It is also the state where dalits and adivasis are discriminated against. On the top of it, the concept of sovereignty and people’s homeland is fading among people. Public thinks that the state is sovereign. The state believes that public purpose is the eminent domain of the state. Thus the state uses its power to displace people from their land for its own benefit and for the benefit of corporates in violation of the Directive Principles of State Policy and Articles 14, 19 & 21. Yet, many people are de- nied minimum wages leave alone living wages. These concerns are hardly questioned and the corporate sector is pampered by the state as though it is the executive wing of monopoly financial bourgeoisie. The most horrendous act of the Tamil Nadu government is the abuse of civil rights and political rights. Rape, harassment of women, domestic violence, illegal de- tentions, torture and even killing in police custody is among those acts. The interven- tion of SHRC is possible in such cases but they do not consider their role seriously. SHRC requests reports in cases from the police officers only in which they have been involved. Therefore, justice is not granted in most of the cases. Tamil Nadu has various extraordinary detention laws in place till today - National Security Act, “Goondas Act”, Prevention of Unlawful Activities Act etc., where the questioning by SHRC is required but it has not attempted to expose the need for repealing these draconian laws. In most cases of fake encounter deaths by the police, the SHRC has failed to intervene though Tamil Nadu remains one of the leading states for encounter-related deaths. Denial of right to freedom of expression, the refutation by police officers to designate the place chosen for protest, obtaining compulsory prior permission of police for protest are not treated as violations of human rights by the SHRC making freedom of association redundant. This was visible in the anti Kundankulam protest against the nuclear plant. If the protest is opposed by the state until and unless a large number of people participate in it this has not been addressed by the SHRC. So, it is clearly visible that the state in Tamil Nadu is constantly engaged in trying to curb people’s right to freedom of association, despite the existence of SHRC and NHRC. The other matter in question is the encounter killings by police. So far from 2011, that is as soon as AIADMK party under the leadership of Ms.Jayalalithaa came to power in Tamil Nadu, more than 32 people have been tortured and killed in police custody and in encounter killings. The government of Tamil Nadu ironically decorates its police officers with medals for killing innocent people. I would like to cite an exam- ple for the same – A doctor treating people suffering from Kalpakkam radiation was called by police and threatened at the police station that he would be knocked off in an
TAMIL NADU 289 encounter if he did not stop informing the public or treating patients facing radiation effects from Kalpakkam Nuclear Power Plant. It is no longer an odd sight to find po- licemen carrying stern guns routinely accompanying a peaceful procession of workers or peasants. A culture of policing is creeping upon us; people are beginning to accept police protection and police force as inevitable. The SHRC has never challenged the undemocratic City Police Act or District Police Act. The 1861 Indian Police Act is still what we are ruled by.
Denial of Women and Children’s Rights – Another failure of SHRC Denial of rights of women is another issue. Women are generally denied their rights in custody. They constantly face harassment and sexual offences at the workplace. Also violence against women is a major issue in the neighbourhood or in their place of dwelling. Denial of right to food security, right to even minimum wages, cruelty due to dowry harassment is some of the issue women face on a day today basis. Child rights are also being severely violated. There is a repudiation of the rights of dalits, ta- mil people, Muslims and other minorities, adivasis etc. The hostels/residential schools of dalits and Scheduled Tribes are in terrible condition. Children are tortured and face corporal punishment in homes, schools and hostels. Sexual abuse of children by teachers and management continues unabated. Sexual abuse of children in the neigh- bourhood is severe. Children in violation of the law languish in observation homes without the right to bail and adequate standards of living environment, food, water etc., Children continue to get married by 16 years, sex selection has led to reduction in child sex ratio and sex ratio at birth.
The Right to Residence and Safe Environment – Not part of SHRC’s Understanding of Human Rights The rights of the urban poor are endangered as they are not allowed to reside within the city of Chennai. They face forced eviction and are claimed to have been resettled people outside the city. The state does not think of right to residence as fundamental right. They live in ghettos outside of the city. The rights of homeless do not follow international laws. The other major issue is destruction of ecology. Several natural resources and common village resources like river sand, timber etc., have been illegally appropriated in huge quantities for the benefits of few. It is alleged that many business deals and permissions for establishing industries, tourist resorts, etc. are sanctioned by government functionaries and leaders of political parties after receiving huge pay- offs and guaranteeing non-compliance with basic industrial, environmental and labour standards. There is The Scheduled Tribes and Other Traditional Forest Dwellers (Rec- ognition of Forest Rights) Act, 2006, which deals with the forest dwellers but it is hardly implemented. Dalits all over the country have been targeted for brutal violence unleashed by police and upper caste groups on numerous occasions especially during peaceful protests against untouchability practices, for land, self-respect assertion, ac- cess to basic services and common resources, asserting leadership in panchayat bodies etc. The growing aspirations of dalits to own land, either for cultivation or to build a house, and the continued opposition or indifference of caste Hindus has led to sev-
290 SHRC: SOCIAL AUDIT REPORT–III eral recent atrocities against dalits in the state of Tamil Nadu. The shocking incident of three villages in Dharmapuri district being brutally ransacked for a non-dalit girl marrying a dalit boy in Tamil Nadu, adds to the long list of atrocities that dalits face.
Conclusion At last, I would like to say that SHRC should work in Tamil Nadu for the protection of human rights as detailed above and forms part of the definition of human rights under the Protection of Human Rights Act, 1993. NHRC should monitor and ensure that guidelines issued with regard to custodial deaths / rapes, encounter deaths, etc., are fol- lowed by the state. It should use its power to take the cases of human rights violations suo moto and ensure that due process is followed. It should use its civil court powers with regard to perpetrators of human rights violations including the police, judiciary etc. All this requires that independence and transparency is needed in appointment of NHRC / SHRC chairpersons / members and their functioning. To ensure that the State in Tamil Nadu functions with some accountability to people and to ensure that political parties, legislature, executive and judiciary are moni- tored and compelled to function within the limits of democracy and law, we need to urgently build a national alliance against globalisation, fascism and for protection of national wealth. Wherever possible at the local level we must form and cultivate fo- rums against globalisation and fascism. All attempts to create a fascist culture should be resisted. For this we require to co-ordinate our efforts and support campaigns for the protection of workers’ rights, including unorganised labour, dalit rights, women’s rights, rights of children, rights of indigenous people etc. As part of civil society, intel- lectuals should play a role of not merely interpreting history and philosophy but must join hands with the working classes and oppressed people to change the world for a more sustainable, humane, socialist politics, governance and non-patriarchial society.
TAMIL NADU 291 Chapter-III Jury Report
292 SHRC: SOCIAL AUDIT REPORT–III Background
Human Rights Law Network, supported by the All India Network of Individuals and NGOs working with National and State Human Rights Institutions (AINNI), Hu- man Rights Advocacy and Research Foundation (HRARF), Social Awareness Society for Youth (SASY), and Society for Integrated Rural Development (SIRD), Madurai, have come together to hold an Independent People’s Tribunal (IPT) titled ‘Catalysing Human Rights Institutions towards Effective Justice Delivery’ on the Tamil Nadu State Human Rights Commission on September 15, 2012 in Chennai. The specific objective of this tribunal is to streamline and strengthen the Tamil Nadu State Human Rights Commission to function as an effective, efficient, transparent and accountable institution that addresses human rights violations. The jury panel of the IPT comprised of: • Justice Malay Sengupta (Former Acting Chief Justice of Sikkim High Court), • Dr. P. Manorama (Former Chairperson, Child Welfare Committee, and President & Project Director, CHES), • Dr. N. Markandeyan (Former Vice Chancellor, Gandhigram University), • Dr. Balram (Former Member, Kerala State Human Rights Commission), • Adv. Sudha Ramalingam (National Vice President, PUCL), and • Adv. Susairaj Martin (Senior Human Rights Lawyer)
Introduction
The jury panel heard around 40 individual cases represented by victims and NGOs representing victims narrating the ordeals they faced in the manner in which their complaints were ‘heard’ and ‘unheard’ by the Tamil Nadu SHRC. The cases presented ranged from all incidents of state violence like torture, custodial deaths (judicial and police), custodial rape, encounter killings, etc., to cases of caste discrimination and untouchability, violations of the RTE, desertion in marriage etc. It is particular to mention that this attempt of the IPT is not to see the SHRC in the light of its tenure during any given government in the state but over several years of its existence so that relevant lessons are learnt and followed and the people of the state benefit by it. Some of the important observations of the jury panel after hearing all the com- plainants and those who deposed were as follows: 1. The SHRC in Tamil Nadu has not been carrying out many of the tasks that need to be performed by it that are outlined under Section 12 of the Protec- tion of Human Rights Act, 1993 [PHRA]:
TAMIL NADU 293 • They have not intervened even once, for the past 15 years, in any proceeding involving any allegation of a violation of human rights pending before a court; • They have not reviewed the safeguards provided by the Constitution or any law for the protection of human rights and recommended measures for their effective implementa- tion; • They have not reviewed the factors, including acts of terrorism, that inhibit the enjoy- ment of human rights and recommended appropriate remedial measures; • They have not undertaken and promoted research in the field of human rights; • They have not encouraged the efforts of non-governmental organisations and institutions working in the field of human rights; 2. it has also not sufficiently performed the following functions: • visited, any jail or any other institution under the control of the state government, to study the living conditions of the inmates and make recommendations thereon; • spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; 3. in the appointment of the chairperson and members and vacancies in these positions the jury were informed that: • The average age of the members of the commission is 62 years. • There are three categories for appointment of members: 1 (Judge – High Court) + 1 (District Judge) + 2(persons with knowledge/ practical experience in human rights). However, members who have been appointed under the category of ’ ‘knowledge/ practi- cal experience in HR’ have only been retired IAS officers, district judges [DJ], a retired director of medical education [DME], or retired directors of school education [DSE]. In the past 15 years of functioning of the SHRC, not a single member from civil society, media, academia, legal profession, women activists, dalit /child/tribal/environmental ac- tivists or others have been appointed. Thus, the knowledge, competence, diversity, and plurality of the commission become questionable. • Between September 7, 2001 to November 21, 2003 (16 months) there was no person discharging the functions of the chairperson of the commission. • An acting chairperson was assigned on November 21, 2003 and continued in office for 33 months until August 05, 2006 when a chairperson was assigned to the commission. • Between September 7, 2001 to August 05, 2006, for a period of 59 months (almost 5 years) there was a vacancy in the post of chairperson. • Between 2002 – 2006 (4 years) there was only one member. • Between December 14, 2000 to March 30, 2001 – there were only four members • Between June 06, 2008 to August 4, 2011 (38 months) only three members. • From August 5, 2011 to January 08, 2012 (5 months) no chairperson or acting chair- person. • From January 9, 2012 till date (8 months) only an acting chairperson. • During September 2011, no chair, no acting chairperson and no members • From January 9, 2012 till date (8 months) there has been only one member. 4. in the handling of suo moto complaints presented to the jury , a study undertaken using the RTI indicates that between 2006 till date there have been only 124 cases taken suo moto, of
294 SHRC: SOCIAL AUDIT REPORT–III which only five cases deal with cases of deaths in judicial custody and one of an encounter killing; 49 percent of these suo moto cases have been closed; only in eight percent cases orders were passed in detail and compensation awarded in three percent cases. In addition, it was also observed that two cases from the year 2006 have been pending for six years; five cases from the year 2007 have been pending for five years; 18 cases from the year 2008 have been pend- ing for four years; 15 cases from the year 2009 have been pending for three years; 11 cases from the year 2010 have been pending for two years and of two cases from the year 2011 have been pending for one year. 5. in a study of the handling of complaints through random cases obtained by RTI from the SHRC presented to the jury, it is observed that of the 445 cases undertaken for careful scru- tiny, in 61 percent of the cases complaints were forwarded to a SP or other district authority and then closed; seven percent of the cases were closed on the report of the concerned authori- ties; 14 percent complaints not addressed to the SHRC, but where only copies alone were marked, were yet taken on file and closed by orders of a member of the SHRC; 12 percent of complaints falling outside the purview of the commission were yet taken on file, numbered and then closed on the orders of a member of the commission. 6. The SHRC sadly does not have any publication [not even a pamphlet] to its credit, even after 15 years of its existence, excepting a poor collection of ‘secret annual reports’ which are not even made available for public viewing on the SHRC’s website. The annual reports are not in Tamil and only available in English in the state of Tamil Nadu and are of very poor quality in terms of its content which for some years are also found to be a verbatim repeat of several chapters being reproduced from the earlier year. 7. The website of the SHRC in Tamil Nadu even today has on its home page only a picture of its earlier building and not its present new building. 8. The NHRC has come out with guidelines on matters such as custodial deaths, post mortem of custodial deaths, deaths during the course of police action, encounter deaths, visits to po- lice lock ups, guidelines of polygraph tests, human rights in prisons, guidelines of premature release of prisoners, videography of post-mortems in cases of deaths in jails, ending manual scavenging, illegal trade in human organs, etc. However, the SHRC has not taken any efforts to monitor any of the above guidelines in the state of Tamil Nadu. 9. in the SHRC’s complaints handling, the jury was witness to several victims who deposed before the IPT that they are made to attend periodic ‘hearings’ before the SHRC; sometimes more than 3 or 4 years of ‘hearings’ will pass before victims are forced to privately settle their cases with their perpetrators outside the commission even after deposing before the commis- sion and tendering evidence. 10. The SHRC has almost all its staff – both at the senior level [secretary/ registrar/ director in- vestigation] and at the subordinate level – deputed from the government. In addition, all the chairpersons and members who have so far served have also been only those who have either served or are still serving in the government as judges, or former IAS or DME or DSE. Hence all of them collectively view themselves still as functioning ‘for the government’ and working for human rights or that upholding human rights is to be working ‘against the government’. This determines the functions they wish to perform and the stands that they take on com- plaints and serves as an indication of their ‘independence’. The Paris Principles [PP], drafted at the first International Workshop on National Institutions
TAMIL NADU 295 for the Promotion and Protection of Human Rights in Paris in 1991 and adopted by Human Rights Commission Resolution 1992/54 and General Assembly Resolution 48/134 in 1993, has highlighted principles relating to competence and responsibilities, composition and guarantees of independence and pluralism, methods of operation and additional principles concerning the status of commissions with quasi-judicial competence etc. The PP, therefore, insist that NHRIs have to be totally independent, with defined jurisdiction, accessibility, co-operative functioning ‘with different sectors, operational efficiency and accountability’. The International Co-ordination Council of NHRIs [ICC], the international body of NHRIs across the world, adopted its ‘General Observations’ in March 2009 to further amplify the Paris Princi- ples. The jury wishes to categorically reiterate that it considers both the Paris Principles and the General Observations wholly applicable to all SHRCs in India if they have to function for the promotion and protection of human rights under the PHRA. An analysis that the jury panel had come to in the light of the PP and the General Observations being applicable to SHRCs pointed out that the SHRC in Tamil Nadu totally lacks independence. In- dependence from all other interests, in particular that of the government and strong private interests, is essential for any human rights institution. From its establishment the SHRC has had problems main- taining its independence from the government of Tamil Nadu. This lack of independence suffered by the commission has become so debilitating that it has essentially paralysed the commission from fulfill- ing even its basic mandate, let alone undertaking any powerful initiatives in the field of human rights. The commission is further tightly controlled financially by the government of Tamil Nadu and cur- rently reports to the home department, the same governmental department responsible for the police and other law and order officials. Placing the state’s overarching human rights institution, responsible for holding accountable violators of human rights, in the same department overseeing police and law enforcement officers, against whom a large number of complaints are made, unsurprisingly weakens the commission’s independence and its ability to be effective. The lack of independence of the commission is also witnessed in the composition of its members and staff. It is worrisome that 15 years after its establishment, nothing has been done to ensure inde- pendence or even reduce potential problems arising from conflicts of interest. The composition of the SHRC masks a real depiction of Indian life in its homogeneity and reveals a misunderstanding of the institution’s stated purpose: to be a state level leader in protecting and promot- ing human rights. Rather, the commission has become a museum of prestige for highly-accomplished, retired members of the judiciary or of other government agencies. While the respectability and stature of the commission members could potentially be a powerful tool in the fight for human rights, the ap- pointment process lacks transparency that allows for the most qualified and best candidates available in the state to be openly selected and is not sensitive to ensuring that commission members have the additional qualities that are essential for effective leadership in the field of human rights. The failure to appreciate what is necessary to equip the commission with leaders capable of fulfill- ing its heavy mandate is indicated by the failure to recognise the need for diversity and the consistent refusal to select even eligible and experienced activists and leaders in the field of human rights from civil society. The result is a commission that has had no women as members for nine out of 15 years to review the thousands of complaints involving issues sensitive to women, and no members from Tamil Nadu’s strong and vibrant civil society. The SHRC remains inaccessible to almost the entire population of the state it is purported to serve. It conducts the overwhelming majority of its functioning in one building in Chennai, while the rest
296 SHRC: SOCIAL AUDIT REPORT–III of Tamil Nadu resides far away, unable to access the NHRC. Even in rare cases where victims are able to journey to Chennai, the environment is hostile and unwelcoming to the very victims it was created to serve. Even the SHRC website, only available in English, removes few barriers for victims and the public. Commission staff members are hand-selected from government posts, often deputed temporarily from similarly titled, but very different, government positions. These staff members are given no train- ing for completing their jobs and as they frequently have no background in human rights, complete their job with no additional sensitivity or understanding of human rights. Again, prestige is blindly equated with competence – resulting in both qualified and unqualified candidates almost randomly being chosen for important posts. Five members of the SHRC have been entrusted with the responsibility of handling complaints received from victims throughout the state. The continuous vacancies suffered by the commission in its history so far and presently being run with an acting chairperson and only one member, it is no surprise that the quality of complaints handling is suffering greatly. It is hard to believe that the commission has members with judicial experience on it and who have the task of overseeing its functioning when you read some of the ‘orders’ passed. This becomes particularly important when complaints handling becomes the one function being performed by the SHRC in Tamil Nadu. The SHRC has refrained from communicating to any specialised group on a regular basis on the model of the NHRC with thematic core groups created for different subjects. This is not seen with the other state human rights institutions in the state, other institutions such as universities / schools, youth institutes, woman and child welfare organisations etc. Thus the PP directive of co-operation is made a mockery of by the SHRC almost remaining aloof in its function as a secretly functioning body of the government.
TAMIL NADU 297
bihar Pritisha Borah | Anupam Kishore
SL.No 01 City Patna Total Cases before Jury 36 Date July 28, 2013 Jury: Mr. Kishore Ram (Retired District Judge); Mr. Ram Jag Ram (Retired S.P.); Mr. Sukant Nagarjun (Senior Journalist); Mr. Surendra Kishore (Senior Journalist) Networking Groups Koshi Nav Nirman Manch; Janta Soochna Kendra; National Campaign on Dalit Human Rights (Aidmam & Ndmj); Koshish; Bihar Women Network; Apnanapn; Dalit Vikas Abhiyan Samiti; Centre For Social Equity & Inclusion The independent people’s tribunal on the functioning of BIHAR state human rights commission EXECUTIVE SUMMARY
BIHAR STATE HUMAN RIGHTS COMMISSION
In Bihar, there are many instances of atrocities under the banners of class, caste, com- munity, and religion. There are examples of armed conflict among the landlords and peasants. There is also political unrest in the state with the rise of the Naxal movement. During 1967-1971 there was no district of Bihar left untouched by the movement. Keeping in view, the increasing violence, government introduced various international and national laws to protect human rights. Apart from the laws and programmes with the objective of protecting and promoting human rights violation, the government made an effort to establish the National and State Human Rights Commissions. Chapter five of the Protection of Human Rights Act, 1993 calls for the constitu- tion of the State Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to a state commission under this chapter. The Bihar State Human Rights Commission (BSHRC) establishment was notified on Jan- uary 3, 2000, vide Notification No. 207. However, the commission was constituted only on June 25, 2008, more than eight years later, vide Notification No. 6896. It was established under the Protection of Human Rights Act, 1993 (PHRA, 1993) as a grievance mechanism in response to the ongoing violation of human rights in Bihar. In its 13 years of functioning, there are various shortcomings which have limited the commission’s ability to function effectively. It failed to fulfill its mandate in protecting the rights relating to life, liberty, equality and dignity of the individual.
Independence Independence is one of the most essential components for the commission to function effectively in a non-partisan manner. Independence does not require for the commis- sion to be an isolated body disassociated from the state, but it rather calls for the abil- ity of the body to take decisions without any interference from the state government, political party, or any other organization. The commission should be legally and finan- cially independent and also in its composition and formation. The commission should exercise its legal power independently. While inquiring into a matter, the commission can utilize the services of any officer or investigation agency of the central government or any other state government. Hence, there are possibilities of interference from state agencies in deciding a matter. The commission
BIHAR 301 should also have the independence to carry out its day to day activities without any interference. In order to function independently, the commission has the power to formulate its own rules of procedure. The commission should also have financial autonomy and must be complemented by adequate, constant funding which has not been the case. The commission is also dependent on the state government for the appointment of the Chairper- son and the members. The appointment is made by the Governor along with the committee consist- ing of the chief minister, the main opposition party leader, speaker of the legislative assembly, and the minister in charge of the home department in the state. Since the appointment to the commission is made by the committee comprising of the party in the power and opposition, there is possibility that the appointments are made on political interest of the party in power. The appointment process needs to be more transparent and it should have representation from civil society groups as well.
Jurisdiction A well-defined jurisdiction is required to make the people aware of its powers and functions. According to the provisions of the PHRA, 1993, there are certain limitations to the commission’s jurisdiction. The commission cannot entertain the cases which are already pending before the National Human Rights Commission or any other state commission, or cases which involve armed forces, investigation into alleged violations is limited to one year from their commencement Most of the cases received by the commission are against the police, of police inaction and caste atrocities. The commission has the power to give recommendations to the state government such as the granting of monetary compensation to victims of human rights violations, or for punitive or discipli- nary action to be taken against perpetrators.
Accessibility Accessibility of the commission is most important to function effectively. The BSHRC is situated in Patna. It is accessible to people and is a disability friendly building. According to the Deputy Secretary, that building is an old building. It was built in 1915 and now it has been renovated. There is no district office or regional office for easy accessibility to poor that live far from the capital city. The process of filing cases is simple, and does not require proximity to Patna.
Operational Efficiency Adequate resources are essential for an effective functioning of the commission and since its establish- ment, the commission had been suffering due to inadequate resources. The commission failed to func- tion effectively because there is no proper staff. Almost 50 percent of the posts are vacant. The posts of Registrar, Assistant Registar and Research wing is vacant since its establishment. The chairman S. N. Jha and Rajendra Prasad retired in the month of November, 2013.
Accountability A national institution should be also directly accountable to its citizen. Transparency through publi- cation and disseminations of reports will inevitably enhance an institution’s external credibility. The information which is uploaded on the website includes the powers of the commission, nature of the cases and important decisions made by the commission since its establishment. However, there is no mention about the pendency of cases.
302 SHRC: SOCIAL AUDIT REPORT–III PATTERN OF HUMAN RIGHTS VIOLATIONS IN BIHAR
Bihar remained the most lawless state in India.1There have been an increasing number of cases of hu- man rights violations of dalits and tribals, women, children. The violations not only resulted from caste, class and gender perspective but also due to abuse of power and excessive use of force by state agencies.
Human Rights Violations By Security Forces The security forces, including police, are responsible for human rights violations in the state of Bihar. According to Mr. Neelami, Member of the Bihar State Human Rights Commission (BSHRC), of the cases received almost 40 percent are related to police atrocities. During the past four years, the commis- sion received a total of 12,490 cases, related to police misconduct.
Violations Of Rights Of Dalits And Tribals The government has also introduced development programmes and policies for the socio-economic development of Dalits and other weaker sections of the society. Even after state interventions, the socio-economic condition of Dalits remains below that of human development indicators. Despite a number of policies and schemes adopted for their development, Dalits are still subject to discrimination and state violence. As far as Dalit atrocities are concerned, Bihar occupies the third position after UP and Rajasthan. According to the National Crimes Records Bureau data for 2011, Bihar witnessed 3346 cases of atrocities against Dalits.2
Violence Against Women From the daily reported news in the newspapers and other mass media, we observed that the status of women in Bihar is particularly low because of the combination of feudal, caste and patriarchal op- pression. The caste system effects the economic, social and educational status of women particularly Dalit women. Everyday they face torture, poverty, illiteracy. According to the National Commission for Scheduled Castes and Scheduled Tribes 2000, approximately 75 percent of the Dalit girls drop out of primary school despite the strict laws of the Government of India, which hold reservations for Dalit children. The 1992-93 Annual report from the Ministry of Welfare shows 1,236 reported cases of rape on Dalit women and the National Commission for SC/ST shows that approximately 10,000 cases of human right violations on Dalits are reported every month. But what is even more disturbing, is that only one out of ten of the cases are reported annually whilst, nine go unreported.3 The hardships of Dalit women are not simply due to their poverty, economical status, or lack of education, but are direct result of the severe exploitation and suppression by the upper classes, which is legitimized by Hindu religious scriptures.4 There are continuous instances of sexual harassment, abduction and rape of Dalit women and most of it went unreported due to the power of the upper caste offenders. The upswing in the statistics of dowry, illiteracy, malnutrition, sexual harassment, and female mortality has created huge challenges for the state government.5
1. India Human Rights Report, Asian Centre for Human Rights, available at: http://www.achrweb.org/reports/ india/AR08/bihar.html 2. Times of India; “Atrocities against Dalits decline in Bihar: NCRB”; July 18, 2012 3. Sonia Mahey, “The Status of Dalit Women in India’s Caste Based System” 4. lbid 5.Satish Kumar, “Silent Revolution in Bihar and Women’s Empowerment”, Mainstream, VolLl, No. 12. March
BIHAR 303 Violations Of Child Rights Children in Bihar are also subject to child marriage, child labor, and child trafficking. Despite a decline in the rate of child marriages among young girls in India, Bihar continues to have the highest percent- age of marriages before reaching the legally prescribed age of 18 years.6
CONCLUSION
Bihar Human Rights Commission has failed terribly when it comes to human rights. Firstly it suffers from a lack of skilled staff that can properly evaluate and investigate cases. Also there is no follow-up of cases by BSHRC. Cases are reported and documented but the files remain unopened for years. The conviction rate is abysmally low and victims despite their best efforts do not get justice. The whole process of dealing with human rights violations needs to be expedited so that justice becomes more accessible. Conclusively BSHRC needs to be proactive on the situation of the human rights viola- tions in Bihar and government needs to provide adequate resources to function independently.
2013, Pg No- 6.The Hindustan Times (13 October, 2013), “Child marriage: Bihar tops the chart in India”
304 SHRC: SOCIAL AUDIT REPORT–III the independent people’s tribunal jury panel social audit report Chapter-I Patterns of Violations and Functioning of Bshrc
308 SHRC: SOCIAL AUDIT REPORT–III Introduction
n the year 1912, Bihar was separated from the Bengal Presi- dency to form new provinces of Bihar. Again, in the year 2000, Jharkhand was divided from Bihar after sixty years of people’s movement for Jharkhandi identity. The state faced a huge loss of mineral and industrial resources after its separa- tion from Jharkand. Like other states, Bihar underwent two radical Itransformations after India’s independence for its economic devel- opment, industrialization, and democratization of social norms and orders. It is universally accepted that rapid industrialization can lead to diversified economic growth, which in turn is essential to create its own concomitants, such as, urbanization, spread of literacy and mass media which is essential for a democratic state to develop.1 But this linkage between industrialization and economic develop- ment in a democratic institution has failed to operate successfully. Known for poor literacy rates, crimes, underdevelopment, and abject poverty, Bihar remains one of the poorest states in the Union of India. It is also considered to be the third largest state by population (10.38 crores - Census 2011).2 Bihar covers 9 per cent of the total population with an urban population of 11 percent.3According to the recent data released by the Planning Commission there has been a marginal decline of the percentage of people living below poverty line from 54.4 percent in 2004-05 to 53.5 per cent in 2009-10 and 33.74 in 2011-2012.4Despite some improvements, Bihar still struggles with high levels of abject poverty.
1. Ramashray Roy, “Structural Rigidity, Social Mobilization and Political Immobilize in Bihar,” The Indian Journal for Political Science,Vol 49, issue 2. Ministry of Rural Development and JEEVIKA – Bihar Rural Livelihoods Promotion Society, Report on State Perspective and Implementation Plan-Bihar(2011-12 to 2021-22) 3. Institute of Human Development: Social and Economic Change in Rural Bihar and the emerging policy framework 4. MahendraSingh , “Odisha, Bihar show biggest drop in population of poor” by Times of India, July 24, 2013
BIHAR 309 Agriculture is the primary sector of state income. In 2009-2010, agriculture contributed towards 21.30 percent of the state economy.5 It is estimated that 81 percent of its population is employed by the agricultural production system. 6 It can be observed that most of the agricultural laborers migrate because of poor economic growth, lack of state initiative and widespread poverty. After 1990, the rate of migration started increasing due to the economic stagnation. Economic stagnation and widespread poverty, along with the existence of ‘semi-feudal’ production relations, had two major ramifications. First, it led to the heavy migration of agricultural labourers and poor peasants, mainly from north Bihar, to the developed north-west regions of the country. Second, it gave rise to the militant peasant movement in the southern plains of the state. The subsequent years witnessed the growth of migration from most parts of the southern plains as well, and also growth of the militant peasant movement in several districts of north Bihar (Sharma, 1995; Sharma, 2005). In addition, the rise in criminalization, caste and class tensions, non-governance, and poor delivery mechanisms has given Bihar a notorious reputation of being a ‘failed’ state and a ‘lawless’ state, mired with corruption and weak institutions. However, in recent years, the state has considerably improved.7 Another important development in contemporary Bihar is the rise of the middle class. It played an important role in breaking semi-feudal economic relationships and fundamentally changing the rural landscape.8
Bihar State Human Rights Commission
The Bihar State Human Rights Commission (BSHRC) establishment was notified on January 3, 2000, vide Notification No. 207. However, the commission was constituted only on June T25, 2008, more than eight years later, vide Notification No. 6896. It was established under the Protection of Human Rights Act, 1993 (PHRA, 1993) as a grievance mechanism in response to the on- going violation of human rights in Bihar. In its six years of functioning, there are various shortcomings which have limited the commission’s ability to function effectively. Like other commissions of India, BSHRC functions as a recommendary body. It just gives recommendations to the state government. In other words, it is not mandatory for the state government to follow the BSHRC’s recommendations. Importantly, the commission, after issuing recommendations, does not follow up on the implementa- tion of such recommendations. And in most cases we witness a different picture, the commission very often transfers the cases to different commissions based on the nature of the complaint. Thus, the victims instead of getting a quick redressal of their grievances, find themselves trapped in the official procedures of commissions who volley the cases amongst themselves.
5. Bihar Economic and Human Development Indicator, 2012, pg-4 6. Niraj K. Singh, B.P. Singh, K.N.S. Yadav and Brijesh P. Singh: “A study of socio demographic condition of North eastern Bihar” Recent Research in Science and Technology; 2013, 5(4), 7. lbid 8. lbid
310 SHRC: SOCIAL AUDIT REPORT–III Functioning of the Bihar State Human Rights Commission
The Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, published by the United Nations Centre for Human Rights in 1995, there are six effective factors essential for the functioning of national human rights institutions. So, we will review the functioning of BSHRC based on these six parameters. These factors are • Independence • Jurisdiction and adequate power • Accessibility • Cooperation • Operational Efficiency • Accountability
Independence According to United Nations Centre for Human Rights Handbook on the Establishment and Strength- ening of National Institutions for Promotion and Protection of Human Rights ,“an effective (national) institution will be one which is capable of acting independently of government, of party politics and of all other entities and situations which may be in a position to affect its work.”9 Independence here means that the commission should function effectively without any interference from the government instruments, political parties, etc.
Independence through legal and operational autonomy: The handbook states that the “legal authority to compel cooperation of others, particularly govern- ment agencies, is another prerequisite for full operational autonomy of a national institution which is vested with the power to investigate complaints. The founding legislation of a national institution may usefully set out the circumstances in which government entities are compelled to cooperate with the institution. Such legislation could, for example, state that all officials and public authorities are to facilitate the work of the institution, including answering requests for information, and assisting in investigations.”10According to Section 13 of the PHRA 1993, the commission shall, while inquiring into complaints have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters, namely: a) summoning and enforcing the attendance of witnesses and examining them on oath; b) discovery and production of any document; c) receiving evidence on affidavits; d) requisitioning any public record or copy thereof from and court or office; e) issuing commission for the examination of witnesses or documents;11 The commission should have operational autonomy to conduct its function independently. As the handbook states, “Operational autonomy refers to the ability of a national institution to conduct its day-to-day af- fairs independent of any other individual, organisation, department, or authority. An effective national
9. Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, 1995, UN Office of the High Commissioner for Human Rights, pg 10 10. Ibid. pg 11 11. Section 13, The Protection of Human Rights Act, 1993, pg 9
BIHAR 311 institution will have drafted its own rules of procedure and these rules should not be subject to external modification. Nor should the recommendations, reports or decisions of the institution be subject to review by any other authority or entity, except where specified in the founding legislature.”12 Although, the PHRA, 1993 provides provision for the establishment of national and state human rights commis- sion and also vested with the powers and function for effective functioning. But it is observed that the Act itself made the commission dependent on the government in terms of financial dependency and selection of staff. So, there is possibility of the government’s interference in the functioning of the com- mission. Moreover, the commission has formulated its own rules and regulation but it has never been implemented.
Independence through financial autonomy Section 33 of the Act states that “the government shall pay to the state commission by way of grants such sums of money as the state government may think fit for being utilised for the purposes of the Act”13 . This provision of the Act states that the government gives funds to the commission to carry out its activities. So, there is every possibility of the interference of the government in the proceeding of the cases filed at the commission. Clearly then, the BSHRC has no financial autonomy. During our visits to the commission’s office, we were informed that the annual budgeted fund for the commission from the government is Rs. 21.2 crores.14
Independence through appointment procedure and selection staff In relation to autonomy through appointment of staff, the handbook underlines the fact that “any insti- tution can only ever be as independent as the individuals of whom it is composed, the method by which members of national institutions are appointed can be critical in ensuring independence.”15 Section 22 of the Act prescribes the method of appointment for chairpersons and members of state commissions. Such individuals must be appointed by the Governor, having obtained the recommen- dation of a committee made up of the Chief Minister, Speaker of the Legislative Assembly, Minister in-charge of the Home Department, and the Leader of the Opposition in the Legislative Assembly. According to these provisions, apart from the inclusion of one member of the opposition, the ruling political party seems to have something of a monopoly on the appointment of candidates, thereby en- suring that candidates of their choice are placed in the commission, giving them ease of influence over the commission’s functioning. Since the appointment to the commission is made by the state government, the appointment procedure is slow. The Deputy Secretary notes that 50 percent of the seats are vacant since the establish- ment of the commission. The post of Registrar, Assistant Registrar and Research wing are vacant since its establishment and till date there is no replacement. The Chairman S. N. Jha and Member, Rajendra Prasad will retire in the month of November, and no one has been suggested as his replacement. There are also no women staff members. Furthermore, according to the provisions of the Act, the Chairperson should be a former
12. Ibid. pg 11 13. Section 33, The Protection of Human Rights Act, 1993, pg 23 14. In an interview with the Deputy Secretary, 7 June, 2013 15. Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, 1995, UN Office of the High Commissioner for Human Rights, pg 11
312 SHRC: SOCIAL AUDIT REPORT–III Chief Justice of the High Court, one member should be a Judge of a High Court or District Judge in the State with a minimum experience of seven years as District Judge and one member should be appointed from amongst persons having knowledge of, or experience in, matters relating to human rights.16 The last chairperson of the BSHRC was Justice S. N. Jha. He was appointed as the Chief Justice of Jammu and Kashmir in January 2004 and then in 2005 he was transferred to the Rajasthan High Court. After his retirement in June 2007 from the High Court, he was appointed as President of the Customs, Excise & Service Tax Appellate Tribunal. And then, in 2008, he joined as Chairperson, Bihar Human Rights Commission.17 Apart from the chairperson, the commission should consist of three members.18 Presently, the com- mission has only one member, Mr Neelmani. Before his appointment as a member of the commission, he was serving as the Deputy General of Police in Bihar. 19
Jurisdiction and Power For an effective functioning, the commission should have a defined jurisdiction.
Subject-matter Jurisdiction Well-defined jurisdiction of the commission is important for making the people aware of the adequate power so that they can approach the commission with appropriate complaints. Ordinarily, complaints of the following nature are not entertained by the commission and which are liable to be dismissed in limini.20 a. events which happened more than one year before the making of the complaints; b. with regard to matters which are sub-judice; c. which are vague, anonymous or pseudonymous; d. which are of frivolous nature; e. which pertain to service matters. f. which pertain to property dispute.
Avoiding Conflict of Jurisdiction Section 36 of the Act sets forth, “the commission shall not inquire into any matter which is pending before a state commission or any other commission duly constituted under any law for the time being in force.”21 In accordance of the PHRA, 1993 the government established national institutions and state institutions for the protection of human rights in India. There are chances of filing complaints in more than one commission.
Adequate Power The commission should have adequate power to discharge its function effectively. According to the provision of the Act, the commission can forward recommendations to the state government, such as
16. PHRA 1993, Section 21 17. BSHRC Website, available athttp://www.bhrc.bih.nic.in/ 18. PHRA Section 2.1 19. BSHRC website, available at http://www.bhrc.bih.nic.in/ 20. lbid 21. Section 36, Protection of Human Rights Act, 1996, pg 26
BIHAR 313 the granting of monetary compensation to victims of human rights violations, or for punitive or disci- plinary action to be taken against perpetrators.22 However such recommendations are not binding on the state government. There is a possibility that the recommendations passed by the commission to the state government are not implemented. Under section 12 of PHRA the commission has the following functions:
a) Investigation of petition The commission has the power to investigate a petition presented to it by a victim or to inquire a case suo motu and negligence of any human rights violations by a public servant. Since its establishment the commission has taken cases suo motu on child trafficking, custodial death, etc. For example, the commis- sion took suo motu action in the year 2012 based on a news coverage by Hindustan Times on custodial death. An FIR was registered with the number Beur P.S. Case No.147/11 against SHO Patrakar Nagar P.S., Assistant Jailor of Adarsh Central Jail Beur, and four others for abetting the custodial death of said Rudal Rajak, on the direction of CJM Patna. Later, his wife Asha Devi filed a complaint which was registered as File No. Comp.354/12. All the files were tagged and taken up at the hearing. Based on the investigation, the commission, through the Secretary ofHome Department, directed the state govern- ment to pay compensation of rupees two lakh to Asha Devi, the wife of the deceased. But there are also a few instances, where the commission failed to investigate a complaint. The commission failed to investigate a complaint filed on February 5, 2013 by an NGO, Mahila-Jagran Ken- dra, on behalf of Sunil Lal related to the dowry death of his daughter Anshu Kumari. The commission registered the complaint with a case no.1633/13 and asked for an enquiry report from Kosh Police Sta- tion. But till date no enquiry report has been submitted. The case remains pending at the commission.23
b) Intervention in proceeding of the court The commission has the power to intervene in the proceedings of the court involving any allegation of human rights violation pending before the court with the approval of the court.24 This power itself is a limitation to function independently. Here the commission has the power to interfere in the proceed- ings of the court but first it as to take approval from the court. In Bihar, we observed that the Bihar High Court has referred a few cases to the commission for further proceedings. For example, in a case of the custodial death of Naresh Mahto, resident of vil- lage Pachamba under Tilauthu Police station of Rohtas district. According to the order of the High Court, the matter was referred to this commission for “disposing off the matter including the claim of compensation in accordance with law”. Along with the reference, the entire record of the case was also transmitted.25 The commission also investigates cases which are transferred by the National Human Rights Com- mission, as in the case of the custodial death of Maruti Chaudhary of Ara District Jail on 9 May, 2010.26
Powers of Civil Court While enquiring into the complaint, the commission is vested with all the powers of a civil court in the
22. Section 18, The Protection of Human Rights Act, 1993, pg 13 23. Case was deposed at IPT on 28 July, 2013 24. PHRA Section 12 25.BSHRC website available at: http://www.bhrc.bih.nic.in/ 26. Ibid
314 SHRC: SOCIAL AUDIT REPORT–III matter of trial of a suit under the Code of Civil Procedure 1908. In particular, it has power to - • summon and enforce the attendance of witnesses and examine them on oath; • order discovery and production of any document; • receive evidence on affidavits; • demand any public record from any court or office; and • issue commission for examination of witnesses or documents.27
Accessibility Awareness about the Commission Awareness of the commission’s functioning is a fundamental condition for accessibility. As the hand- book points out, “...the individuals or groups who are most vulnerable to human rights violations will quite often are difficult to reach through standard channels of communication. These same persons may in fact be reluctant to voice their concerns to an “official” body.”28 The Commission can also function effectively if it works in cooperation with the human rights organization working in rural areas that are difficult to reach.” The BSHRC gives funds to civil society for organizing awareness programs on hu- man rights. Till date four awareness programs have been organised in Punia, Darbhanga, Munger, and Muzaffarpur. Furthermore, the commission also organized an annual function on December 12, 2013 on the occasion of International Human Rights Day in which NGOs, doctors, advocate, high court judges, district judges, principal secretary, DGP participated.
Physical Accessibility According to the Handbook, “a national institution must be aware of the impact of its own work- ing methods on physical accessibility. A complaints procedure which requires physical attendance of complainants and witnesses, for example, may be inaccessible to a great part of the population. By developing rules of procedure which obviate the need for personal attendance, a national institution can immediately increase its physical accessibility.”29 The BSHRC is situated in Patna. It is accessible to people and is a disability friendly building. According to the Deputy Secretary, that building is an old building. It was built in 1915 and now it has been renovated. There is no district office or regional office for easy accessibility to poor that live far from the capital city. The process of filing cases is simple, and does not require proximity to Patna. A petitioner can file a complaint by post, fax or email. No fee is charged for filing a complaint. Though, the victims can file a petition by post or fax, their presence is necessary during the trial of the case. Also, due to the absence of a regional office, petitioners have to visit the commission office to learn about the status of their case. This in turn increases the cost of proceedings. The commission has a website which is available at the URL http://www.bhrc.bih.nic.in/. The website also contains information about the important decision taken up by the commission. It is to be noted that in the website under section ‘important decision’ one case is repeated twice. The case details of Bhupendra Rai Case,(2013) is uploaded once as the complaint of harassment and prosecution by IG and CID and another under case of wrongful prosecution under SC/ST Act by police. Moreover, it
27. BSHRC Website available at http://www.bhrc.bih.nic.in/ 28. Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, 1995, UN Office of the High Commissioner for Human Rights,pg 13 29. Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, 1995, UN Office of the High Commissioner for Human Rights,pg 14
BIHAR 315 does not have any provision of uploading the status of the complaint. The website is in both Hindi and English and it can be accessed by large number of people.
Cooperation Cooperation with NGOs According to the UN handbook, “a national institution should establish and maintain close contact with non-governmental organizations. The support of these bodies can be extremely useful in enhanc- ing the visibility of an institution by informing the general public of its existence.”30 It is to be noted here that the commission is working in cooperation with various NGO for mak- ing the people aware of human rights issues. Till date four awareness programs have been organized at Punia, Darbhanga, Munger, and Muzaffarpur. The Paris Principles also recognises the role of NGOs in the commission. Principle 7 of the Paris Principles stated that there should be representatives of NGOs in the appointment procedure of the commission, and NGO personnel are to be members themselves. In spite of such provisions there are no representations of NGOs in the appointment process of the commission.
Operational Efficiency According to the UN handbook, “Certain fundamental requirements (eg: staff and premises) which must be fulfilled before it can even begin operating. Sufficient human resources and adequate, continuing funding are therefore pre requisite for operational efficiency”. Quantitative indicators clearly demonstrate that the BSHRC is currently unable to cope with the number of cases it receives, and therefore that it is, on the whole, operationally inefficient. The follow- ing table demonstrates, the number of cases pending has been steadily growing each year, far outstrip- ping the number of cases disposed of.
Year 2008 2009 2010 2011 2012 Total Total Received 102 2727 3701 3827 3810 14167 Total Disposed 90 2149 2082 1208 984 6513 Total Pending 12 578 1619 2619 2826 7654
From the above table we can see that year wise the number of pending cases is increasing. In two years i.e. 2008-2010 the number of disposed cases is higher than the total number of pending cases. But in the year 2011 and 2012 the number of pending cases is higher than the total number of disposed cases. This highlights the ineffective functioning of BSHRC. The following table reveals the number of cases commission received district-wise:
SN Ward 2008 2009 2010 Com- Com- Ex- Start- Com- Started Executed Executed pleted Started pleted ecuted ed pleted
1 Muzaffarpur 6 5 1 89 51 38 154 51 103
30. Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, 1995, UN Office of the High Commissioner for Human Rights,pg 14
316 SHRC: SOCIAL AUDIT REPORT–III Paschim 2 3 0 3 43 20 23 84 19 65 Champaran
Poorvi Cham- 3 3 3 0 58 33 25 108 30 78 paran
4 Sitamari 3 3 0 48 23 25 65 15 50
5 Vaishali 4 4 0 102 67 35 113 41 72
6 Shivhar 0 0 0 11 8 3 6 0 6
7 Gopalganj 1 1 0 52 39 13 53 21 32
8 Poorniya 1 1 0 28 24 4 70 46 24
9 Aririya 1 1 0 32 28 4 29 17 12
10 Katihar 1 1 0 46 45 1 75 56 19
11 Kishanganj 0 0 0 15 14 1 7 3 4
12 Saharsa 1 1 0 50 48 2 77 51 26
13 Madhepura 0 0 0 24 23 1 41 27 14
14 Gaya 4 4 0 94 81 13 124 75 49
15 Jahanabad 0 0 0 41 29 12 52 33 19
16 Arwal 0 0 0 17 13 4 16 13 3
17 Nawada 4 3 1 39 31 8 46 24 22
18 Aurangabad 1 1 0 46 42 4 51 33 18
75 19 Darbhanga 0 0 0 70 5 101 57 44
20 Madhubani 2 2 0 67 54 13 91 68 23
BIHAR 317 21 Samastipur 3 3 0 123 101 22 187 128 59
22 Siwan 2 2 0 48 28 20 70 47 23
23 Munger 1 1 0 49 41 8 72 33 39
24 Lakhisarai 4 3 1 30 21 9 43 19 24
25 Jamui 1 1 0 78 55 23 47 13 34
26 Begusarai 3 3 0 84 77 7 147 124 23
27 Shekhpura 2 2 0 14 14 0 17 9 8
28 Khagariya 1 1 0 58 50 8 73 49 24
29 Supoll 0 0 0 33 24 9 61 39 22
30 Patna 25 21 4 633 529 104 753 523 230
31 Nalanda 2 2 0 94 85 9 154 99 55
32 Bhojpur 0 0 0 50 38 12 98 56 42
33 Baksar 3 3 0 47 35 12 72 36 36
34 Rohtas (Sasaram) 4 4 0 57 47 10 82 38 44
35 Bhabua (Kemoor) 1 1 0 25 19 6 27 16 11
36 Saaran 5 4 1 73 59 14 109 49 60
37 Bhagalpur 5 5 0 124 88 36 165 70 95
38 Banka 0 0 0 41 32 9 61 34 27
318 SHRC: SOCIAL AUDIT REPORT–III 39 Anya 5 4 1 89 63 26 100 20 80
Total 102 90 12 2727 2149 578 3701 2082 1619
Adequate Resources For effective functions, the commission should have adequate resources. The annual budget is Rs. 21.2 cr. But the grant is not given timely. There is seems to be no financial problem. Almost 50 percent of the posts are vacant. The post of Registrar, Assistant Registar and Research wing is vacant since its establishment.
Working Method The commission has the power to lay down by regulation its own procedure. Like other commissions, BSHRC has its own regulation, but has not been implemented. The petition can be filed by fax, email or by post.
How does the Commission inquire into complaints?31 The BSHRC, while inquiring into complaints of violations of human rights, may call for information or reports from the state government or any other authority or organization subordinate thereto within such time as may be specified by it; provided that if the information or report is not received within the time stipulated by the commission, it may proceed to inquire into the complaint on its own; on the other hand, if, on receipt of information or report, the commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned government or authority, it may not proceed with the complaint and inform the complainant accordingly
What steps are open to the commission after inquiry?32 The commission may take any of the following steps upon the completion of an inquiry: 1. Where the inquiry discloses the commission of violation of human right or negligence in the prevention of violation of human rights by a public servant, it may recommend to the con- cerned govt. or authority the initiation of proceedings for prosecution or such other action as the commission may deem fit against the concerned person or persons; 2. Approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary; 3. Recommend to the concerned Government or authority for the grant of such immediate inter- im relief to the victim or the members of his family as the commission may consider necessary. The commission has its own investigating staff headed by an Inspector General of Police for inves- tigation into complaints of human rights violations. Under the Act, it is open to the Commission to utilize the services of any officer or investigation agency of the central government or any state govern- ment. The commission may associates (NGOs) in the investigation work..33
31. lbid 32. BSHRC website available at: http://www.bhrc.bih.nic.in/ 33. lbid
BIHAR 319 What are the kinds of issues on which complaints have been received?34 Since its inception, the commission has handled a variety of types of complaints. The major types of complaints are: • In respect of police administration - failure in taking action, unlawful detention, false implica- tion, custodial violence, illegal arrest and other police excesses • Custodial deaths • Harassment of prisoners; jail conditions • Atrocities on SCs and STs • Child labour and trafficking • Dowry death or its attempt; dowry demand • Abduction, rape and murder • Sexual harassment and indignity to women, exploitation of women • Harassment for taking recourse to Right to Information Act • Many other complaints which cannot be categorised have also been taken up. • Accountability According to UN Handbook, Institutional effectiveness requires the development of a system of ac- countability based on specific, ascertain goals.” Section 28, of PHRA act also states that “the state commission requires submitting annual reports to the state government, which are then tabled before legislative assembly, so that the commission can prepare a memorandum of actions taken or proposed to be taken on the recommendation of the commission”. The commission till date has submitted one annual report which is a compilation of the activities of the commission since its establishment. A national institution should be also directly accountable to its citizen. Transparency through pub- lication and disseminations of reports will inevitably enhance an institution’s external credibility. The information which is uploaded on the website includes the powers of the commission, nature of the cases and important decisions made by the commission since its establishment. However, there is no mention about the pendency of cases.
Pattern of human rights violations IN BIHAR
here are many instances of atrocities under the banners of class, caste, community, and religion. There are examples of armed conflict among the landlords and peasants. There are also political Tunrest in the state with the rise of the Naxal movement. During 1967-1971 there was no dis- trict of Bihar left untouched by the movement. The leftist political parties later introduced agricultural initiatives in order to wean away the landless peasants from Naxalite influence. After independence, the
34. lbid
320 SHRC: SOCIAL AUDIT REPORT–III state government set out two plans, one preventive, and the curative. The preventive plan envisages a large-scale offensive killing, torture, and arrest of supposed activists and augmenting of the strength of the police force in men and material. The curative part involved speeding up of land reforms.35 Although there are various international and national laws to protect human rights, it has been observed that the level of human rights violations is increasing day by day. The violations not only resulted from caste, class and gender perspective but also due to abuse of power and excessive use of force by state agencies.
Torture and Ill-treatment by Security Forces
Article 5 of Universal Declaration of Human Rights and Article 7 of International Convention of Civil and Political Rights provided “No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.” Even the Indian Constitution under Article 21, provides protection of life and liberty of the individual. Despite international and national laws, torture seems to be a continuous practice by police/security forces. According to Mr. Neelami, Member of the Bihar State Human Rights Commission (BSHRC), of the cases received almost 40 percent are related to police atrocities. During the past four years, the Commission received a total of 12,490 cases, related to police misconduct. 36 The following table reveals the number of cases received by the commission against police and security forces.37
2008 2009 2010 2011 2012 Total percent of Total 32 618 619 317 263 1849 28.39
The above table reveals that out of the total cases received, 28.39 percent of the cases are against police and security forces. Since its establishment, the commission received 1,849 cases. However, it can’t be ascertained that out of the total cases received, how many cases are disposed or still pending at the commission. The above table shows that there was a sudden increase in the number of cases in the year 2009 and 2010 but then in 2011, the number of cases decreased by almost half. There is no clarity about the reason for the sudden decrease. There are many instances where victims are arbitrarily tortured in custody. Arbitrary arrest is strictly prohibited. Article 5 of the Universal Declaration of Human Rights declares that “no one shall be sub- jected to arbitrary arrest, detention, or exile”. Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) states : “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” India is a signatory to the ICCPR and, thus, has a re- sponsibility to implement the law effectively. But in Bihar, there are instances of arbitrary arrest and custodial torture. For instance, a complaint was filed at the National Human Rights Commission (hereinafter referred to as NHRC) on the custo-
35. ArunSingha, “Bihar-Class War, not Atrocities against Harijains”; Economic and Political Weekly, VolXll No. 50, 10 December, 1977 36. UCAN India, “Police commit most violation in Bihar”; July 14, 2012, 37. Annual Report, BSHRC
BIHAR 321 dial death of Vijay Yadav. The late Vijay Yadav was remanded to District Jail Chapra as an undertrail on December 1, 2009. As he was ill, he was shifted to the Chapra Sardar Hospital and was later referred to the Patna Medical College Hospital. The doctors attending to him referred him to the All India Institute of Medical Sciences (AIIMS) in Delhi but, curiously instead of keeping him in the hospital for medica- tion/treatment, he was sent back to Chapra Jail on January 29, 2010. As his condition deteriorated, he was shifted to the jail hospital on February 18, 2010. His condition had worsened and he was in no position to be taken to Patna and eventually succumbed to his injuries. The complaint was filed at the BSHRC. The commission called for a report from the medical authority and IG Prisons. The commission on consideration of the report, awarded compensation of Rs 2.50 (two lakh and fifty thousand) to the deceased’s family. The commission accordingly directed the State Government through the Secretary, Department of Home to pay a compensation of Rs 2.50 lakh to the next-of-kin of the deceased, his wife, within a period of six weeks and to submit a compli- ance report.38 But we have no information on whether the victim’s family received the full amount of compensation awarded to them. During 2007, Bihar witnessed an increased amount of mob violence. The police were themselves accused of taking part in the mob. On August 28, 2007, Mohammad Aurangajeb, alias Salim, an al- leged thief, was reportedly tied behind a motorcycle by Assistant Sub-Inspector LB Singh and Con- stable Ramchandra Singh and dragged on the roads of Nathanagar locality in Bhagalpur. However, on October 30, 2007, an inquiry committee, constituted by the state government to probe into the role of the policemen, cleared the policemen of all charges claiming that they were actually trying to save Salim from the mob.39
Violations of Minorities Rights
In India the practice of “untouchability” has been abolished in legal documents but studies reveal that it is still practiced in many states of India. The government has also introduced development programmes and policies for the socio-economic development of Dalits and other weaker sections of the society. Even after state interventions, the socio-economic condition of Dalits remains below that of human development indicators. Despite a number of policies and schemes adopted for their development, Dalits are still subject to discrimination and state violence. As far as Dalit atrocities are concerned, Bihar occupies the third position after UP and Rajasthan. According to the National Crimes Records Bureau data for 2011, Bihar witnessed 3346 cases of atrocities against Dalits.40 The following table reveals the number of cases received by BSHRC on atrocities on minority rights:
2008 2009 2010 2011 2012 Total percent of total 2 43 32 19 3 99 1.52
From the above table it is clear that out of the total number of the cases received, 1.52 percent of cases are received on violence on minorities SC/ST. In 2009, the commission received 43 cases which is the highest number of cases it received since its establishment. And in 2012 the number of total
38. BSHRC, Annual Report 39. Asian Centre for Human Rights available at: http://www.achrweb.org/reports/india/AR08/bihar.html 40. Times of India; “Atrocities against Dalits decline in Bihar: NCRB”; July 18, 2012
322 SHRC: SOCIAL AUDIT REPORT–III cases received was decreased to three. Even though newspapers and other reports established that Dalit problems happen frequently, for some reason the issue of dalits is not reaching out to BSHRC for help.
Violations of Women Rights
Women continue to be plagued by a host of inequalities and injustices. The Convention on Elimina- tion of All Forms of Discrimination against Women (CEDAW) defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” India is a signatory to this convention. By accepting the convention, states commit themselves to undertake a series of measures to end discrimi- nation against women in all forms. Apart from the convention, the Indian Constitution also provides provisions to prohibit discriminations against women and a platform for gender equality for neutraliz- ing the cumulative socio-economic, education, and political disadvantages faced by them. The state has enacted various legislative measures intended to ensure equal rights, to counter social discrimination, and various forms of violence and atrocities. Apart from the provisions and privileges, the government also adopted various schemes and policies for the overall development of women in India. But in the present situation, we have observed that the rights and privileges adopted by the Indian Constitution and by Parliament over the years had little effect. The social, economic, and political rights of women remain a legal fiction for many. From the daily reported news in the newspapers and other mass media, we observed that the status of women in Bihar is particularly low because of the combination of feudal, caste and patriarchal op- pression. The caste system effects the economic, social and educational status of women particularly Dalit women. The hardships of Dalit women are not simply due to their poverty, economical status, or lack of education, but are direct result of the severe exploitation and suppression by the upper classes, which is legitimized by Hindu religious scriptures.41 There are continuous instances of sexual harass- ment, abduction and rape of Dalit women and most of it went unreported due to the power of the upper caste offenders. The upswing in the statistics of dowry, illiteracy, malnutrition, sexual harassment, and female mortality has created huge challenges for the state government.42 Let us look at the statistic of the cases received by the BSHRC on violation against women. Out of the total cases received by BSHRC, 5.65 per cent of the cases are against the violation on women rights. From 2008-2012, the commission received total 368 cases. Year wise breakups of the cases are given below.43 Apart from these figures from BSHRC, we can witness from newspaper clippings, reports that violation against women is a common practice.
2008 2009 2010 2011 2012 Total Total Percent 5 120 136 70 37 386 5.65
41. Sonia Mahey, “The Status of Dalit Women in India’s Caste Based System” 42. Satish Kumar, “Silent Revolution in Bihar and Women’s Empowerment”, Mainstream, VolLl, No. 12. March 2013, Pg No- 43. BSHRC Annual Report
BIHAR 323 Violation of Child rights
The Convention on Rights of Children views the child as “an individual possessing a number of eco- nomic, civil, social, political and cultural rights (Article 54)”. The Indian Constitution contains certain provisions specifically aimed for protection, development, and welfare of children. • Art.24 prohibits the employment of children in any factory or mine or in any other hazardous occupation. • Art. 39 (e) & (f) in the Directive Principles of State Policy lay down that the state shall direct its policy in such a manner that the tender age of the children is not abused and children are given opportunities and facilities to develop in a healthy manner and their childhood is protected against exploitation and against moral and material abandonment.Art. 21 A (vide 86th Amendment) provides the fundamental right to primary education to children in the age group of 6-14 years. • Art.45 in the Directive Principle of State Policy created a provision for early childhood care and education of children. Apart from the provision, the government adopted various laws to prohibit child marriage, child labor, etc. Education is considered important for the overall development of a child and it is a basic right of every child. In consideration of education as a tool for development of a child, the Right to Education(RTE) Act was passed in 2005 and it is applicable in all the states. Under the RTE all chil- dren are supposed to get free and compulsory education. With an average of 82 students per classroom and one teacher for every 57 students in schools in Bihar, there is an urgent need to strengthen the implementation of RTE. 44 Children in Bihar are also subject to child marriage, child labor, and child trafficking. Despite a decline in the rate of child marriages among young girls in India, Bihar continues to have the highest percentage of marriages before reaching the legally prescribed age of 18 years.45In a recent incident of a contaminated mid-day meal in Saran leading to the deaths of 22 children is a clear example of child rights violations by state actor.
Conclusion
This report has been prepared by efforts of HRLN and also BSHRC’s support. It has been prepared after a detailed study that included fact-finding, depositions and Expert testimonies and is a collection of data which has been taken from Bihar State Human Rights Commission. Bihar Human Rights Commission has failed terribly when it comes to human rights. Firstly it suf- fers from a lack of skilled staff that can properly evaluate and investigate cases. Also there is no follow-up of cases by BSHRC. Cases are reported and documented but the files remain unopened for years. The conviction rate is abysmally low and victims despite their best efforts do not get justice. The whole process of dealing with human rights violations needs to be expedited so that justice becomes more accessible. Conclusively BSHRC needs to be proactive on the situation of the human rights violations in Bihar and government needs to provide adequate resources to commission’s functioning independently.
44. Firstpost India, “Bihar school lag in implementing Right to Education”, available at http://www.firstpost.com/ india/bihar-schools-lag-in-implementing-right-to-education-1064681.html 45. The Hindustan Times (13 October, 2013), “Child marriage: Bihar tops the chart in India”
324 SHRC: SOCIAL AUDIT REPORT–III
Chapter-II Testimonies
326 SHRC: SOCIAL AUDIT REPORT–III Police Inaction Kosh PS, Tari Maohalla, Bhojpur District Sunil Lal deposing the case
Anshu Kumari
n December 9, 2011 Anshu Kumari D/o Sunil Lal married Montu Lal S/o Sanjay Lal, r/o Rohitash. Her in-laws demanded a dowry payment of Rs.2 Olakh cash, a LCD TV, a washing machine, and a bike. Sunil Lal was unable to meet their demands, due to which Anshu was abused on daily basis by her in-laws. On December 16, 2012 Anshu informed her parents about the abuse and torture she had been suffering at the hands of her in-laws. On December 26, 2012 her parents called her but found that her mobile phone was switched off. Her concerned father went to her in-laws house to enquire about her. However, they were not forthcom- ing and did not provide him with any information. Sunil Lal, at this point became extremely concerned for his daughter and went to Kosh Police Station to notify them that she was missing and consequently an FIR was lodged (number 141/12). Till this date the police have failed to provide any information about her well-being or her whereabouts. On February 5, 2013 a complaint has been filed at the BSHRC by an NGO, Ma- hila Jagran Kendra on behalf of Sunil Lal. The commission asked for an enquiry report from the Kosh Police Station. But till date, no enquiry report has been submitted.
BIHAR 327 Illegal Detention and Police Torture Begusarai District Written Submission to the Jury
Hemant Kumar
iti Kumar filed a false complaint at PS against Hemant Kumar s/o Shri Nand Kishore Prasad as misbehaving with her. On December 22, 2012 at Mabout 10:30 am, Hemant went to withdraw money from the HDFC bank at Zuba Sahani Park. When he got there he saw Shri Jitendra Prasad, Raman Kumar, Amit Kumar and many more police personnel were present. Upon seeing him they ap- prehended Hemant and they beat him black and blue and dragged him to a car parked nearby which then took him to the police station. On the way to the station they abused him both physically and verbally and confiscated his mobile phone. At the po- lice station Hemant requested them to make him speak to ADGP Shri Guptashewar. But Jitendra Prasad denied the request and then physically and verbally assaulted him. Mr. Kumar was detained. After few hours he was taken to the room of Sub-Inspector for interrogation. There, the police personnel Raman Kumar, Amit Kumar, Devkumar Tiwari and Bibha Rani again abused him. During the interrogation, Hemant declared that he was an RTI activist and in- formed the police about his work on corruption. The Policemen asked whether he had filed a RTI against them, Hemant denied about that particular RTI application but confessed that he knew about the corrupt practices going in the said police station, The police then wrote the following words on a board, “I am the hero of Muzaffar- pur. My name is Hemant Kumar and my work is to tease girls”. They tied the board around his neck and made him wear it while travelling from Nagar Police Station to Mithanpur Police Station and from there to M.D.D. M College via Zuba Sahini Park. Hemant’s family were not informed of his arrest and detention. At M.D.D.M.College, Shri Jitendra Prasad was holding a press conference. The police officers paraded Hemant at the press conference with the board tied around his neck. He was then taken to Nagar Police Station where false charges of rape were framed against him under sections 376 and 511 IPC. 30 hours after his ini- tial arrest and detention, Hemant was presented to the District Magistrate and was granted bail (case no. 297/12). The police authority also charged him under section 341,354,509,294,376/511, 323. Mr. Kumar filed a complaint at the BSHRC on April 29, 2013. The case is still pending.
328 SHRC: SOCIAL AUDIT REPORT–III Police Torture Indrapuri PS, Rohtas District Written Submission to the Jury
Aman Kumar Das, Birendra Ram, Mahendra Ram, Narendra kumar
n June 21, 2012, Aman Kumar Das S/o Shri Ramshri Ram went, with his brother to the PWD office to register for government work. He was in- Oformed to report to SP Mr Rana Singh at Rohitash police station in relation to an investigation on the possession of licensed arms. Das was then taken to SP Monu Maharaj who arrested him without providing him with a reason for arrest. Later, he was taken to Indrapuri Police Station. He was interrogated about any links he had with Maoist groups and the police demanded that he hand over a AK-47 and SL guns. He was held in police custody from June 21, 2012 to June 24, 2012. During this time he was physically tortured and recieved electric shocks. On June 25, 2012 he was arbitrarily released from the custody. Birendra Ram, S/o Shri Yadu Ram, R/o Samhuta, Karghar PS, Rohitash PS. On June 21 2012, at around 9 am, two people came to his house. Birendra Ram wel- comed them and then they asked for some information regarding a dance group. Mr. Ram contacted Mahendra Ram for the information. After some time, Mahendra Ram and Bhuali Ram came to Mr. Ram’s house to share the information about the dance group. When they arrived at Mr. Ram’s place, around 10 policemen came there and arrested the three of them. They were also physically and verbally abused by the police. On June 24, Birendra Ram was taken to Model Police Station and on June 25, Mr. Birendra Ram and Mahendra Kumar were presented before the District Magistrate. They released Bhuali Ram. Along with them. Narendra Kumar was also arrested on June 21. He was also physically tortured by the police. Later, on June 24, he was taken to Model police sta- tion and on June 25, he was presented before the district court.
BIHAR 329 Police Torture, Murder and Illegal Detention Mufassil Police Station, Laxmipur Village, Nawada District Manish Kumar deposing the case
Late Manoj Yadav
he deceased Manoj Yadav was 30 years old and a plumber by trade at the time of his brutal torture and murder. He had two daughters, Khoosboo Kumari, Taged six, and Pooja, aged four, and a year old son. In late October 2011, he purchased a mobile phone from a female labourer who was working in the same field as him. Manoj was not very adept at using a mobile phone and kept and used the same sim card that was in the phone at the time of the purchase. When investigating the theft of the phone, the police called the number and Manoj answered the call. He duly answered their questions and gave his personal details without hesitation and in good faith, unaware of the implications. A co-villager said that the police called him at least four times. Manoj was then accused of stealing the mobile phone from and for the murder of a trader named Sanjay Kumar Burma who was killed on September 30, 2011. On November 11, 2011 DYSP Sanjay Kumar Singh led a team including SHO Devendra Choudhary to Manoj’s home. They dragged Manoj out of the house and beat him and several of his family members. He was taken to the police station and illegally detained for 16 days. On November 26, 2011 a member of Parliament, Bhola Prasad Singh confronted the police and enquired as to why they had held Manoj in custody for 15 consecutive days and continued to hold him without charge or present- ing him before a court. Manoj was subsequently released. Manoj’s father, Dayanand Yadav, reported the incident and the names of the police officers involved in the illegal detention, and an FIR ( no. 29/2012) was registered. On January 11, 2012, trusting the reassurances given by DYSP Sanjay Kumar Singh and SHO Choudhary, Manoj’s father took Manoj to the Nawada Town Police Station. Dayanand was assured that Manoj would be released following interrogation. However, Manoj was not released from the police custody. There was no evidence of Manoj’s involvement in the murder and police suspicions were based merely on cir- cumstantial evidence. It is also significant that Manoj did not have a criminal record and no one came forward to implicate him in the case. His family brought him food on a daily basis to the police station. When his mother, Shakunti Devi, took food to him on January 13, 2012, Manoj was groaning and told her of the torture that was being inflicted upon him by the police, includ- ing the use of electric shocks. He pleaded with his mother to find a way to have
330 SHRC: SOCIAL AUDIT REPORT–III him released. Her request to officers DYSP Sanjay Kumar Singh and SHO Devendra Choudhary was refused. When his father and younger brother took dinner to him that evening, Manoj was not inside the police lock up. They were told by the SHO that Manoj had been taken out by the DYSP for interrogation and that he had probably already been released so it would be better if they looked for him outside. They proceeded to search all over the local area for Manoj, but could not find him, so they returned home. When Manoj did not arrive home that night, his wife Rina Devi took lunch for him to the police station. However, on arriving at the station the SHO began to ask her about Manoj’s whereabouts and stated that he had been released the previous evening. Obviously doubting their sincerity, Rina pleaded with the officers to release him, but the officers rebuked and threatened her, stating that if she did not bring Manoj to the police station, there would be dire consequences. Rina returned home, wailing with despair. His father, Dayanand, then spent the whole day looking for him in nearby villages and among their relatives, but Manoj was not found. On January 15, 2012 they received news that Manoj’s dead body had been found in a nearby field, west of Gaya–Kiul rail line. The family left for the scene. On arriv- ing they found that a group of people had gathered who were fighting with the police in response to Manoj’s murder. The women went into the temple to take shelter and protection; however, the police followed them mercilessly and brutally beat them. A team sent from the People’s Union for Civil Liberties observed the wounds and gashes inflicted on these people. Manoj’s 70 year old grandmother’s hand was broken by lathi blows. Suresh Prasad and his family lived in a house approximately 300 to 400 meters away from where Manoj’s body was found. They stated that they did not see who dumped Manoj’s body; however, the police have continuously threatened them. For instance, they barged into the house one evening and threatened the family, telling them not to tell anyone about the circumstances surrounding Manoj’s murder. A post mortem was carried out following the instructions by the district mag- istrate. The post mortem report fails to provide the cause of death. However, there are some significant facts contained within it, such as: stiffness marks present all over the body; both eyes were congested (crammed); lividity (dark bluish colour) present behind the left shoulder, left side of the chest, on his back, and the left genital; bluish discoloration (cyanish) of both lips, on the pinnacle of the nose, tip of the tongue and on tips of all the fingers and toes; the inside of the left knee had two abrasions; an abrasion on the decapular region of ¼ square inch. The body had not begun to decompose and the time of the death was somewhere between six and 24 hours prior to the autopsy. It is reported that at least four more people were detained at the same time as Manoj. One of them was Shako Yadav of Mangalbigaha Colony, who is still being held in Nawada District Jail. The other detainees were released, including a juvenile from the Gaya district, seemingly as a result of the public protest following Manoj’s murder. Police documentation shows that on November 11, 2011, Manoj was brought to the police station at 1.20 pm and was released at 1.40 pm. This,however is contrary to
BIHAR 331 all the other evidences and accounts, including that of MP Bhola Prasad Singh. Fur- ther, no entry document was created by the police on the second occasion of Manoj’s arrest on January 11, 2012 and they failed to follow the guidelines laid down in the DK Basu case. The police did however manage to lodge FIRs for the violence and protests that followed Manoj’s murder (FIR no. 30/012 and 31/012). The police of- ficers implicated in Manoj’s murder are DYSP Sanjay Kumar Singh, SHO Devendra Choudhary, SI Raj Kumar, V.K. Mishra, and SI Vipin Singh. No one has been arrested for these heinous crimes against Manoj, his family and the other villagers. The authorities have failed to carry out a proper investigation into the illegal detention, torture and murder. No compensation has been awarded to his family or any of the other victims and their families.
Harassment of a RTI Activist Mahempur Village, Piri Bazar PS, Lakhisarai District
Kameshwar Mahto
ameshwar Mahto is an RTI activist. He filed an RTI regarding the misap- propriation of Rs 43,98,820 by the Block Development Officer, Village Pan- Kchayat under Sampoorn Gramin Rozgar Yojna. On November 26, 2012 an FIR was filed against Kameshwar at Piri Bazar Police Station (case no. 80/12). On November 29, 2012 another FIR was filed against Kameshwar (case no. 101/12). He had received persistent threat from three of the officers and he then decided to go to the commission so that he gets justice because he only exercised his legal right to file a RTI application. Kameshwar filed a complaint to the Commission on January 3, 2013 which is still pending.
332 SHRC: SOCIAL AUDIT REPORT–III Sexual Harassment and Police Inaction Patna District
RupaShri DasGupta
s Rupashri Dasgupta was an Associate Professor at Indira Gandhi Institute of Medical Sciences (IGIMS), Patna. She was appointed to the post fol- Mlowing a due selection process. However, following her appointment, the Director of IGIMS, Dr Arun Kumar, made an indecent and outrageous proposal to Ms Gupta, asking her to become his “bed mate”. Ms Gupta rejected Dr Kumar’s proposal, who in response persecuted her in a vindictive and highly orchestrated manner. Dr Kumar began to harass her by various means, both directly and indirectly. She was physically assaulted and harassed physi- cally, mentally, and sexually. Dr Kumar then demoted her from the post of Associate Professor to that of Assistant Professor on false and arbitrary grounds. He finally ter- minated Ms Gupta’s employment, again on false and arbitrary grounds. Dr Kumar’s spiteful ploy even extended to an evil smear campaign. He made de- famatory statements regarding Ms Gupta in a letter sent to many government authori- ties, where he described her as mentally unstable. It is also alleged that he instigated and spread a rumour about her attempted suicide, following which she was illegally taken into police custody. While she was held in illegal detention in her house in the IGIMS campus and it is alleged that Dr Kumar was also involved in this. However, the High Court has now given Ms Gupta leave to stay in the house. Ms Gupta filed a case in the High Court of Patna against the IGIMS order that de- moted her. She was then assaulted on the IGMIS campus by one of the other IGIMS assistant professors in an attempt to rouse fear in her and to compel her to retract the case. As of yet, Ms Gupta has not been awarded any compensation. Her financial status has been very badly affected by the demotion and loss of her job. Further, Dr Kumar has not been brought to justice for the crimes that he has committed.
BIHAR 333 Medical Negligence in a Sterilisation Camp Kaparfora Village, Kursakanta, Araria District Written Submission to the Jury
Women patients
n January 7, 2012 a sterilisation camp was held in the Madhaya Vidyalaya building in Kaparfora village, Kursakanta block in Araria district. The Peo- Ople’s Union for Civil Liberties (PUCL) sent a fact finding mission to the site on February 18, 2012 and February 19, 2012 to investigate the camp. They discov- ered the following activities. The camp was organised by an NGO called the Jay Ambe Welfare Society and the Araria District Health Care Society was tasked with operating the camp vide the District Quality Assurance Committee on Family Planning (DAQS) order No. 1165 on January 29, 2012. The DAQS order held that the Jay Ambe Welfare Society along with Jan Kalayan Vikas Samiti and Janani were competent to organise the camp. However, the DAQS had only met once in a year prior to the order, despite the “Qual- ity Assurance Manual for Sterilisation Services” (October 2006) as prepared by the Indian Government’s Ministry of Health and Family Welfare, which provided that meetings be held on a quarterly basis. The sterilisations were conducted by Dr Awadh Kumar Chaudhary, MBBS, who was brought in from the Purnia district. Community members’ testimonies state that the operations were conducted between 7 pm and 10 pm. He performed 53 tube ligation operations in three hours. However, Government of India’s Standard Oper- ating Procedures (SOP) provide that camps should be held between 9 am and 4 pm and, “for maintaining quality service, each surgeon should restrict to conducting a maximum of 30 minilap tupectomy cases. With additional surgeons, support staff, in- struments, equipment and supplies, the number of procedures per team may increase proportionately. However, the maximum number of procedures that are performed by a team in a day should not exceed 50.” Dr Chaudhary was assisted by 10 people; however, neither the government health functionaries nor the district administration knew the technical background of these people and whether they had the required paramedical training to assist in the procedures. Government SOPs staff requirements for sterilisation camps are three team members for OT, constituting one staff nurse/ANM, one OT attendant and one cleaner. 15 staff members should be present, including a medical officer for history and medical assessment, a lab technician for testing urine and blood samples, and a compounder/pharmacist for distributing medicines.
334 SHRC: SOCIAL AUDIT REPORT–III The procedures took place in a school classroom and the study desks were used as operating tables, which are about one foot wide and are slanted at one end. The rooms were lit with a few 100 watt light bulbs. Following the operations, the women were put on the hay covered floor of the veranda. There is no evidence that the mandatory aseptic measures, as required by the SOPs, were carried out in the make shift operation theatre; like mopping the floor and cleaning the operating table with disinfectant prior to surgery. The SOPs require that under no circumstances should sterilisation camps be organised in a school building or Panchayat Bhavan or any other such setup. They must always be held either at a community health centre or primary health centre and post operation patients must be kept in a recovery room Mandatory pre-operative clinical assessments and laboratory investigations (urine test for pregnancy, urine test for sugar and albumin, and blood test for haemoglobin estimation) were not conducted before the surgeries. The women were supplied with expired Nimuslide tablets. The Government SOPs require that Ibuprofen tablets be provided to the women post operation. The SOPs mandates that the Quality Improvement Committee (QIC) at the fa- cility level is responsible for the monitoring of standards at such camps. However, the QIC has failed to submit a report on the camp. Dr Rajendra Prasad, MOIC who was Kursakanta PHC at the time of the camp, only attended the camp once and that was when villagers had complained about negligent medical practices undertaken over there. Ms Anima Sarkar, ANM was the only health department worker present during the operations. The women were treated like cattle. All the norms mandated by the Government of India were grossly violated. Even Mr Sarvanan, DM and Dr Husna Ara, CS, Araria agree that the norms were violated. The operations were held in poorly lit and dirty classrooms, with minimal aseptic precautions. Competent paramedical staff was not present to assist during surgeries and no trained medical officer was present for post- operative care. No medical officer was provided by the PHC to investigate the site. No arrangements were made to respect the women’s privacy. Toilets were not even provided for the women. The District Health Society, Araria, District Quality Assurance Committee and Quality Improvement Committee failed to ensure that standards were upheld at the camp and they should therefore be held accountable for failing in their duty. Despite both central and state governments maintaining that they have a Target Free Approach (TFA) policy in conducting sterilisations, they have bulldozed over their own policy by implementing an Estimated Level of Achievement (ELA) ap- proach. The CS Araria stated that their ELA is one percent of the district population every year. The Kursakanta MOIC revealed that health workers’ salaries are sometimes withheld if they fail to achieve their targets.
BIHAR 335 Pollution Because of Asbestos Factory Jakhra Sheikh Gram Panchayat, Muzaffarpur District Written Submission to the Jury
People of Jakhra Sheikh Gram Panchayat
n receiving reports on certain incidents at the asbestos factory owned by Balmukund Asbestos Cement and Roofing Ltd, in Marwan, Muzaffarpur Odistrict and receiving a request from Jevan Bachao Jan Sangharsha Samiti (KBJBJSS), the People’s Union for Civil Liberties (PUCL) sent an investigative team on January 25, 2011. The PUCL’s team found the following accounts and concluded that the factory should not be allowed to go ahead. The village of Chainpur has fertile agricultural land with paddy fields and oth- er crops. There are over 1000 households and a large Dalit population. There are a number of schools located within a kilometre of the factory, with the closest at 200 metres away and the closest homes within 100 metres. The company purchased 18 acres of land for the factory in 2007 without disclos- ing the purpose of the purchase to the sellers and conducted the purchases through a third party. They bought the land from a number of farmers including Dalits. The villagers maintain that they were not informed of the plans to build the factory and were actually told that the land would be used for some other purpose. Construction began without official clearance. The company’s proposal included Rs 125 lakhs and Rs 50 lakhs for capital costs and environmental control measures. Rs 125 lakhs and Rs 50 lakhs was allotted to- wards corporate social responsibility activities and occupational safety and health measures respectively. The proposal also stated that the total daily requirement of wa- ter would be 300m3/day only to be sourced from their own bore wells. The committee responsible for making recommendations on the project’s clear- ance considered complaints submitted by the Centre for Science and Environment (CSE) and a villager, and also the reply from the Bihar State Pollution Control Board. The committee sought clarification as to the distance of the project from local schools and houses and was told that the closest school was more than 500 metres away. Based on this, the committee recommended that environmental clearance be granted for the project, subject to a set of 19 conditions. During the land acquisition and initial construction phase, the villagers did not raise any objections as they had been misled to believe that the factory would serve another less toxic and lethal purpose, such as iron or agricultural based production. However, when it was uncovered that its true purpose was to produce asbestos sheets for roofing, certain members of the community led an awareness campaign and dis-
336 SHRC: SOCIAL AUDIT REPORT–III tributed pamphlets detailing the dangers that asbestos posed to people’s health. The community now alarmed began to raise objections. Another point of concern was that the local water table began to fall rapidly following commencement of the works. A public hearing was organised by the Bihar State Pollution Control Board (BSPCB) on June 28, 2010. However, the villagers were not informed about the hear- ing. The CSE Associate Director, Mr Chandra Bhushan stated that the hearing was not held in the right spirit and a letter from CSE representative Nivit Kumar Yadav stated that there were “serious flaws in the proceeding of the public hearing, especially not providing proper opportunity to the local representatives who had adverse opinion about the project.” A meeting was held in September 2010 between the company, KBJBJSS and the SDO where it was agreed that construction would stop. However, the company broke the agreement shortly after and resumed works. The community protested at this and the company again halted works in November, before again restarting shortly after. In December 2010 company goons shot at people protesting peacefully. A com- pany vehicle was burnt, however, community members believe that the factory man- agement did this in order to get the protesters in trouble. Mr Tarkeshwar Giri and Kumod Ram were arrested on charges of arson and are still being held in jail. On January 22, 2011, people were protesting outside the factory gate and had given notice of their intention to do so. A company truck arrived escorted by a police jeep and the protestors obstructed the entrance. A police team led by SI Shashi Kant asked them to let the truck through, when they refused they were attacked and a number of people sustained injuries. The SI assaulted Ashok Kumar Singh, a frail old person. More villagers then came and joined the protest. The police then lathicharged the crowd. As more police arrived at the scene the clashes became more violent. Kalash Devi w/o Harinder Mahto took shelter in the factory with four other women. However, the police attacked these unarmed women without provocation. The police then left the scene and one of their jeeps was ransacked. The City SP and SDO went to the scene that afternoon and addressed the protes- tors. The SP made a series of promises to the crowd, that: i) On January 27, 2011 he would himself go to Chainpur and investigate the case of Tarkeshwar Giri and Kumod Ram ( the persons charged with arson); ii) The factory would remain closed, and iii) Police would be stationed to protect the villagers. The SP also constituted a commit- tee of local persons to inspect the site in order to ensure that works did not resume. The PUCL team met five women and two men in Muzaffarpur District Hospital that had been injured during the lathicharge, while two others had already been dis- charged. Rajo Jevi w/o Umakant Paswan suffered head and hand injuries after being beaten with a police rifle butt. Rajo Jevi’s husband, Umakant Paswan was also admit- ted to hospital after sustaining less serious injuries in the same attack as he tried to pro- tect his wife. Sheela Devi w/o Satyanarayan Pasawan suffered head and hand injuries from a police rifle butt beating. Subhagi Devi w/o Singheshwar Ram was suffering from head injuries, which it is reported, were sustained by a brick striking her which was thrown from inside the factory.
BIHAR 337 On arriving at the factory on January 25, 2011 the PUCL team were denied ac- cess. A meeting was arranged with Mr D K Tiwari on January 26, 2011 at the Patna office, Mr Tiwari then moved the meeting to the 27th before stopping all communi- cations with the team, even though the team had told him they wanted to hear the company’s version of events. The FIR filed by SI Shashi Kant gave a twisted version of the clashes on January 22, 2011. Omitting the events that occurred at the beginning of the clash and exag- gerating other aspects. It contained lies about weapons held by the protestors and also made wild and unfounded assertions, such as the protestors were working at the behest of commercial rivals. Marches and rallies have been held against the proposed factory in Muzaffarpur and Patna. However, there appears to be administrative support for the factory. Ac- cording to newspaper reports, the chief minister at first feigned ignorance regarding the community’s opposition, before shifting the onus and stating that it was for the central government to implement a ban. The land was incorrectly certified as barren land by the department of agriculture. The police have colluded with the company and the district administrators also act in the company’s favour. Despite the SDO’s promise, works have continued. There has also been a reluctance to meet civil society delegations on the issue. KBJBJSS submitted a petition before the SDO (West) Muzaffarpur on December 28, 2012. The petition highlighted the dangers that asbestos factory posed to the health of the community and was supported by extensive evidence, such as World Health Organisation reports and guidelines. Asbestos is of course is highly toxic and carcinogenic and there exists a massive body evidence and research that demonstrates this. In 1995, the Supreme Court directed the Government of India to take cognizance of International Labour Organisation resolutions in relation to asbestos, the most recent of which calls for end to its use. A Bill on the Prohibition and Use of White Asbestos has been sitting in the Rajya Sabha since 2009.
338 SHRC: SOCIAL AUDIT REPORT–III Murder of a RTI Activist and Police Inaction Lakhisarai District Shiv Prakash Rai deposing the case
Late Ram Vilas Singh
r. Ram Vilas Singh, an RTI activist, highlighted police inaction in the case of Rakesh Kumar alias Bambam Singh of Lakhisarai district who had been Mbooked in two murder cases. One FIR No. 312/05 was registered in Lakh- isarai PS under sections 302, 120B of IPC on September 24, 2005 and the other was registered in Keul Rail PS as FIR No. 55/08 under section 302, 34 of IPC and Arms Act. In both cases no action was taken by police even after court orders to seize Rakesh Kumar’s property . It is asserted that the Sub-divisional Police Officer was a close acquaintance of the accused and was protecting him, hence Rakesh Kumar is still at large. The Lakhisarai PS SHO was also protecting him. Because he revealed this police inaction, Mr. Ram Vilas created a lot of enmity against himself, especially with the local police who were protecting the accused. He also directly accused the SHO of taking bribes and protecting Rakesh Kumar. In fear for his life he requested, by letter of July 15, 2012, that the Bihar SHRC ensure that he was provided protection (case no. BHRC/COMP 7421/5581). Ram Vilas Singh was then brutally murdered. Following the murder, another letter was sent to the BSHRC to request a full investigation into murder and police inaction and that all necessary arrests and charges are made. Despite warnings of the threat to Ram’s life, the BSHRC failed to take any action. The complaint was sent to the BSHRC on December 20, 2012. To date the commission has failed to take any positive action on this case.
BIHAR 339 Police Torture Rajpur PS, Bahuaara Village, Buxar District
Haridwar Shah
aridwar Shah and his family live in Bahuaara village, Buxar district. He is an agricultural worker. Haridwar has been continuously tortured by the SHO Hof Chausa and Rajpur Police Station. The background of this case is that Haridwar Shah’s son Ajit Shah was accused in three cases. Haridwar believes that his rivals, who work hand-in-glove with police, are responsible for this. His son was awarded bail by the Court. However, the family has been continuously harassed by the police in an attempt to extort money from them. The police threaten the victims day in day out, in an attempt to get payment from them. They go to their home in the middle of the night and beat and threaten the fam- ily, including the women and children. On the night of October 5, 2012, the police went to the victims’ house at around 02:25 am, and beat them brutally. Haridwar Shah’s daughter who was visiting the family from her in-laws place was also beaten brutally by the police. The culprits were the police SHO and officers from Chausa and Rajpur Police Station. The family is living in constant and immense fear of the police. The police treat- ment has also affected their standing in the community. The victims sent a complaint to the BSHRC on October 9, 2012.
340 SHRC: SOCIAL AUDIT REPORT–III Harassment and False Case Lakhisarai District
Ramchandra Mandal
amchandra Mandal is an RTI activist who exposed irregularities in a number of schemes, including Indira Awaas Yojana (IAY) scheme, in the district of RLakhisarai. Consequently he was harassed by the Block Divisional Officer (BDO) and Vikas Mitra Rekha Kumari. The irregularities he revealed in the IAY scheme were from 2011 to 2012. Upon his discovery he sent a complaint regarding the same to the Deputy Development Commissioner (DDC), Lakhisarai and Divisional Commissioner (DC), Munger, as well as to the Chief Minister (CM) of Bihar, requesting that the matter be properly investigated. Following the investigation, many irregularities were found, but still no action was taken against the BDO and Vikas Mitra. So, the victim kept writing to the CM, Chief Secretary and Rural Development Minister of Bihar, requesting them to take proper action against those involved in corrupt practices. It is important to note that Vikas Mitra forged a housing certificate to get his job; which was duly highlighted by Mr Mandal through his RTI activism. In order to take revenge against Mr Mandal, Vikas Mitra filed a fake SC/ST atroc- ity case against Mr. Mandal at the behest of the BDO in the Lakhisarai District Police Station. The case is registered as FIR No. 04/13. Mr Mandal has been forced to leave his home because of the grave nature of the case filed against him. It is also important to note that fake cases have previously been filed against him in response to his public activism. Mr Mandal filed a complaint with the BSHRC on February 15, 2013, calling for a high level inquiry into the false charges framed against him. He also requested that the commission take action to stop the arrest of innocents and bringing of false charges against them. The complaint is currently pending in the Bihar SHRC.
BIHAR 341 Police Harassment and Torture Aurangabad District Raja Ram Singh deposing the case
Raja Ram Singh and others
n May 2, 2012 a group assembled to protest against police inaction for fail- ing to arrest the culprits who murdered Devendra Kumar at Chotu-Mukhi- Oya of Sonhatthu Panchayat, Hspura Block, Aurangabad District. Case no. 155/12 registered on March 29, 2012 at Aurangabad Town Police Station. The protestors had gained permission from Sub Divisional Officer, Aurangabad for the protest. During the demonstration the police, led by S.P. Aurangabad, Dr Sid- dhartha Mohan Jain beat the protestors indiscriminately. Many people were beaten and sustained injuries, including Usha Sharan & Kiran Yadvendu, and Sunita Singh’s husband - Raja Ram Singh. The other perpetrators of the violence included Dy. S.P. Sadar Aurangabad, Mr. Sanjay Kumar and SHO Aurangabad Town P.S, S.I. Vijay Kumar Gupta. It is reported that Raja Ram Singh had injuries in backbone and at other parts of body too. Despite that, he was not provided with any kind of medical aid whatsoever. However, in given circumstances it was police’s duty to take him to hospital or give him medical aid then and there but police failed to do so. The three complainants of the police torture are Mrs. Usha Sharan, Mr Raja Ram Singh and Mr Kiran Yadvendu. The complaints were put and heard together as analogous matters. The incident was investigated by the Bihar SHRC and Inspector General (IG) of Police Mr. Nirmal Ku- mar Azad ((case no. BHRC/COMP. 1704/12; 1705/12 & 1706/12). A CD was also submitted to the commission regarding this. After a few adjournments the matter was finally heard on April 11, 2013 in the presence of the victims Usha Sharan, Kiran Yadvendu and Raja Ram Singh. The police officers were also present in person at the time of hearing. CDs were submitted regard- ing the incident by both the parties. PUCL (Bihar State Unit) also made an independ- ent enquiry regarding the incident. There was a general resentment against the police for protecting the real culprits involved in the murder of Devendra Kumar and a protest meeting was organized under the banner of ‘Chhotu Mukhiya Hatya Virodhi Sangharsh Morcha’ for which permission was obtained from the concerned authority, namely, SDO Aurangabad. Following the proceedings, the Bihar SHRC recommended on May 9, 2012 that compensation should be given to the following three victims of police torture– Rs 1 lakh to Raja Ram Singh and Rs 50,000 each to Mrs Usha Sharan and Kiran Yadvendu. Although the BSHRC established that there had been a case of police torture, bizarrely
342 SHRC: SOCIAL AUDIT REPORT–III there was no recommendation to take action against the accused officers! Despite the findings, the authorities just allowed the villainous police officers to escape any conse- quences for their crimes. Instead, the authorities have registered a case against one of the victims, Raja Ram Singh, and others in Aurangabad Town PS on May 2, 2012, booked under sections 147, 148, 149, 341, 323, 337, 338, 427, 435, 353, 504, 506, 307 of IPC and under the Arms Act, Explosive Devices Act, Damage to Public Property Act. Police inves- tigating these cases took Raja Ram Singh to the police station and beat him brutally. The commission stated in the order that: “It is to be kept in mind that this commission is not supposed to make enquiry re- garding the course of events and give its verdict as to whether the police action which followed the pelting of stones, destruction of public property etc. including firing, was justified or not. That is not the subject of complaint. The complaint is about the police excesses on peaceful protestors. The commission is satisfied on seeing the visuals (of CD submitted to it) that Raja Ram Singh was mercilessly beaten by the police. There is nothing on the record to indicate that he committed any act of vandalism, destruction of property etc. or that he incited the people to engage in such acts.” Mr Raja Ram Singh is a former two-¬time member of the Bihar Legislative As- sembly (MLA), member of the Central Committee of the CPI (ML) and National General Secretary of the Akhil Bhartiya Kisan Mahasabha. As a public figure and an activist, he had every right to participate in the protest meeting which had been organ- ised to highlight the police inaction, the commission said. Similarly, applicant Usha Sharan is the District Convenor of All India Dalit Ma- hila Adhikar Manch and applicant Kiran Yadvendu is an ex-¬Mukhiya, and as public figures they had the right to participate in the protest meeting. They were also physi- cally beaten by the police during the incident even though they were simply bystand- ers. The police beatings were totally uncalled for and unjustified. The commission gave benefit of doubt to the police and said that in absence of any cogent evidence against the police officials compensation is to be paid by the state government. The commission’s observations are contradictory as on the one hand they hold the police responsible while on the other they have recommended that no action should be taken against them. Such inconsistencies and insensitivity towards victims raises large concerns about the commission and its will to provide justice.
BIHAR 343 Police Brutality Patna District Written Submission to the Jury
Sadhana Mishra and others
here was water logging in the Langertoli, Nala Road area of Patna. The nar- row lanes of the area flooded with rain. The drains were chocked resulting in Tknee deep water on the roads. Besides this, the accumulated garbage turned putrid making it terrible for the residents. The situation remained like this for 10 days. The worst sufferers were school children, the aged, and the sick. Discontentment grew because of the terrible apathy of the administration. The residents wrote petitions which were signed by more than 100 people and submitted them to their respective ward councillors. After not receiving any positive response from the administration the residents decided to register a non-violent protest on Au- gust 12, 2011 to draw the administration’s attention to their terrible situation. A large number of people gathered in the morning around 8:30 am, August 12, 2011. The protesters barricaded one half of the two way road and allowed the other half for vehicular access. At 9 am the women started addressing the crowd by micro- phone. A police Jeep from Kadam Kuan Police Station led by ASI Lal Babu Singh arrived, but they did not interfere with the peaceful protest. A crowd of 200-300 had gathered by then. Around 10 am, the Deputy SP (Town), Rama Kant Prasad arrived with his two bodyguards. He snatched the microphone away from a speaker named Anamika, aged 31 years. He proceeded to rough her up and without any prior warning, ordered his men to disperse the crowd by force. Brutal lathi blows followed. According to the PUCL fact-finding report of the incident, Ramakant Prasad forcibly took Sadhana Mishra, aged 41 years, into a tight grip within his arms. Members of the public, including other girls and women, were infuriated about this unacceptable behaviour and they tried to release Sadhana from his clutches. During this scuffle, Ramakant Prasad’s uniform was partially torn. He threw Sadhana on the road with full force causing her bodily injury. Police brazenly used canes against women. A youth named Nikolai Sharma, while trying to defend the women, bore the brunt of an attack on his bare palm which required eight stitches. Ramakant Prasad threw a burning tyre over Sadhana which she allowed to slip down her body by closing her limbs in tightly and narrowly escaped with her life, only sustaining a burn injury on her left arm. The situation deteriorated and the police began to use their canes more indis- criminately on the crowd. After dispersing a large part of the crowd, the police started arresting protesters. They took Sadhana Mishra, 41, Sandhya Maiti, 50, Anamika, 31,
344 SHRC: SOCIAL AUDIT REPORT–III Leelavati Singh, 42, Laxami Devi, 45, Sumanlata Mourya alias Pinky, 21, Anjali, 18, Pooja Singh, 23, Pummy Kumari alias Sadhana, 21 and five men Suryakar Jitendra, 38, Anil Kr, 35, Saroj kr Suman, 30, Krishnamohan Singh, 22, Rahul Singh, 20, into custody. These people were beaten up in public view. The women were physically and verbally abused. The people were furious. It was only after the incident had ended that two female police officers in civil dress appeared, merely as a show so that the police could say that female officers were present. At the police station, the arrested people were asked to sit on the floor. The police hurled filthy abuses at them while the arrested men were beaten up again and again. When DYSP Ramakant arrived he made hell for the victims. He told the officers to beat them up as there were no media reporters inside. Ramakant Prasad smashed the spectacles of Sadhana Mishra., he slapped her on her cheeks again and again while call- ing the women and girls prostitutes and worse. Meanwhile, Ramakant’s bodyguard misbehaved with one of the women .The arrested men received lathi blows and kicks. Suman Lata Mourya alias Pinky, suffered burns on her left arm and burnt hair. Nikolai Sharma injured his right palm and Sadhana Mishra’s arm and leg was injured. All five of the arrested men were sent to jail after FIRs were registered against them and the three women whose names were included in the FIR were released without charge. The FIR No. 3784/11 was filed in Kadam Kuan P.S., Patna, under IPC sections 14 7,148,149,341,323,353,307,332,427. The following people were held accused: Ra- hul Singh, S/O Girjanandan Singh, r/o Langartoli, Suryakar Jitendra, S/O Late Saryug Sharma, r/o Nala Road, Near Shiv mandir, Mohan Singh, S/O Girijanandan Singh, r/o Langartoli, Anil Kumar s/o Laxmi Narayan Barnwal, Rajendra Nagar Rd No.- 1, Kadamkuan, Saroj Kumar Suman s/o Balkrishna Sharan, r/o Darbhanga, Sadhana Mishra D/o Sitambar Mishra, r/o Langartoli, Sandhya Maiti, D/o Late Bisheshwar Maiti, r/o Langartoli, Pooja Singh D/o Ramdani Singh, r/o Mirjapur Mali, Aurang- abad amongst others.
BIHAR 345 False Case and Harrasment of a RTI Activist Buxar District
Shiv Prakash Rai
r Shiv Prakash is an RTI activist who believes in fighting for the cause of the common people through peaceful means. He’s been regularly filing Mand helping others file RTI applications to find information regarding the implementation of various projects and government schemes. He filed an RTI in the year 2006-07 to the then Buxar District Magistrate (DM) Mr Vishnudeb Prasadji regarding PMRY, MSTP, solar lights and other projects being run under various government schemes. The RTI was not responded to within 30 days so he returned to the DM and filed a first appeal at the State Information Commission. During the hearing the DM stated that he did not have the requested information. Mr Prakash replied to the DM stating that such a reply should be provided in writ- ing as the DM is an IAS officer and is responsible for monitoring all the government schemes. The DM then called Mr Prakash to his room. The DM later filed an FIR al- leging that Mr Prakash tried to extract Rs. 25,000 out of him. The FIR no. 25/08 was registered in Buxar Town Police Station. Consequently, Mr Prakash was arrested and held in custody for 29 days .Follow- ing an investigation by the DSP, Buxar, Mr Prakash was acquitted. The applicant reported the harassment to the BSHRC on December 31, 2009 (complaint no. BHRC/COMP-858/09-3502/Patna). The BSHRC held a hearing for the complaint, however, later dismissed it as the complaint was made more than a year after the incident.
346 SHRC: SOCIAL AUDIT REPORT–III Murder of a Dalit Ushri Dih, Mehandia P.S., Arwal District Written submission to the Jury
Late Lakhan Rajwar
his case (Case No.– 56/11) is concerning the murder of Lakhan Rajwar alias Dhonga Rajwar, who is a dalit and lived at Ushri Dih, P.S. Mehandia, Arwal TDistrict. On June 25, 2011 Mr. Rajwar went to do daily wage labour in the fields of Mr Yogendra Sharmah a resident of Usirdih Village. He was fencing one of the fields when Mr Baijnath Sharmah alias Baiju, a resident of the same village, ap- proached Mr Rajwar with a stick. Then, without any provocation and without warn- ing, Mr Baijnath attacked Mr Rajwar by hitting him with the stick. Mr. Rajwar who was startled by the impromptu and unprovoked attack tried to run away and escape Mr. Baijnath. However, Mr Baijnath chased him, all the while hitting him relentlessly with the stick. Mr Rajwar, succumbing to the blows, fell to the floor of the field. Mr Baijnath, hell bent on murder at this point, mercilessly kept on beating Mr Rajwar while he was lying on the floor, until he was dead. As soon as Mr Rajwar’s family heard the news that he had been murdered, they rushed to the scene of his killing. A while later the DSP of the area, Manoj Kumar arrived at the murder scene with police officers from the Mehandia and Arwal police station. Mr. Rajwar’s dead body was then taken to Jehanabad for a post-mortem. Mr Rajwar formerly worked as a labourer for the perpetrator. While under his em- ployment, Mr. Rajwar borrowed money and rice for his daughter’s wedding. He then began to work for Mr. Sharma, without however, fully repaying the debt. It is also highly significant to note that the victim was an SC and a poor and landless labourer, while the perpetrator was a Brahmin landlord. An FIR has been filed against Mr Baijnath and he has been charged under section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and section 302 of the IPC for murder. The charge sheet has been filed and he is currently being held in jail awaiting trial. The victim’s family has not yet received any monetary or institutional relief. The case is pending in the court. The complaint was sent to the commission with the following prayer - 1. as according to the SC/ST Act, 1989 and its Rule 12 (4), the following compensation sought: a member of the victim’s family should be provided with government employment; his children should be given free education; a brick house must be constructed for them; and they must be provided with a minimum of three months food supply. 2. security is provided to the life and property for the victim’s family.
BIHAR 347 3. a minimum monetary compensation of Rs. 2 lakhs for the family of the deceased in accordance with rule 12 (4) of the SC/ST Act, 1989. 4. a speedy trial is conducted. 5. The officials who failed to fulfil their legal duty of taking action in this case should be charged under the Section 4 of the SC/ST Act, 1989.
Murder of a Dalit and Police Inaction Salempur Village, Ishapur PS, Sheikhpura District Written submission to the jury
Late Manoj Kumar
n December 3, 2009 Manoj Kumar, S/o Vishal Kumar, along with his brother Ashok Kumar, his neighbour Sushil Kumar and other villagers went Oto see an orchestra which was organised at the Salempur Secondary High School. The orchestra was organised for the marriage of Dev Singh’s daughter Smt Lata. Manoj along with his friend and brother were enjoying the colours of orchestra. The seating at the concert was provided exclusively for guests at the wedding. At some point one of the guests vacated their chair for some time. Upon seeing the empty chair Manoj Kumar went and sat on it. When the guest returned and saw Manoj sitting on his chair he asked Manoj what his name and caste was. When Manoj gave his name the guest began verbally abusing him. In the meantime the groom’s father, Harendra Sharma, arrived at the scene and became angry upon seeing what was happening. Harendra Sharma shot Manoj dead. An FIR has been lodged, however, no one has been arrested for the murder. The victim’s family has also not been compensated as yet.
348 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity and Police Inaction Dev PS, Aurangabad District Written submission to the Jury
Kunti Devi, Saraswati Devi and Others
n October 6, 2011, Santosh Paswan and his younger sister, were on their way to see a doctor in the nearby village of Pathak Bigah for her treatment. OWhile walking along a curve in the road a boy called Bittu Kumar was passing by on a bicycle and in his haste drove the bicycle over Santosh’s feet. A small quarrel broke out between the two, after which Mr. Paswan and his sister went on their way to see the doctor. The boy, Bittu Kumar, then went and told his father about the incident. On hear- ing the boy’s story, the father became mad with anger and collected some of his neigh- bours. The mob then went to Shantosh’s family house and attacked the whole family. At the time they attacked, there were no male family members in the house. They attacked Kunti Devi, the mother of the house, who was seated in the doorway. When she resisted, Mr Gupta Singh threatened to insert a stick into her private parts if she continued. In the meanwhile Ms Saraswati Devi, Ms Kunti Devi’s daughter -in-law, was very frightened and locked herself up in the house. However, Mr Gupta Singh broke into the house, went inside and sexually molested and tried to rape Ms. Saras- wati Devi. Ms. Kunti Devi then came to her daughter-in-law’s aid and she screamed and shouted and tried to rescue Saraswati, who ceasing an opportunity ran out of the house. The culprit kept attacking all the women. Ms. Chinchila Kumari who also resisted the attacks, was abused and beaten up in the process. Besides physically and sexually molesting the victims, the perpetrator[s] also used abusive language; beat, partially undressed and threatened to rape the victims. Following the attack when all the women of the house were on their way to the police station to file a complaint, they met Ramesh Paswan, Lakhan Paswan, Birendra Paswan, Rameshwar Paswan, all of whom were returning to the village unaware. They all went together to Dev Police Station and reported the incident to Mr. Suresh Ram, the officer in charge. Mr Ram was at first unwilling to register the complaint and treated the family with contempt. Only following great efforts and pleading with Mr. Ram did he agree to register their complaint. An FIR was subsequently recorded on that same day October 6, 2011. However, the police failed to include all the facts and take an accurate record of the family’s account. When the female victims attempted to explain the incident, police personnel threatened and silenced them. Despite the FIR being filed, there is yet to be an arrest. No charges have been framed under The Scheduled Castes and the Scheduled Tribes Act, 1989 or the Indian
BIHAR 349 Penal Code. No form of monetary or other compensatory relief has been provided to the victims. To date, no investigation or inquiry has been conducted by the DSP. De- spite the victims continuously demanding that a charge sheet be filed, there has been no response from the police authorities. Following registration of the FIR, the dominant groups started persecuting the SC community by using their power and resources. The Rajput community has stopped employing the SC community to work in their fields, banned them using their grazing land, or waste land for defecation. This process of structural torture continues. This is an exemplary case of caste atrocities propagated on the Dalit community which shows the nexus of the Brahmanical system that has taken the state into its ambit. The case has been filed at the BSHRC (case no.107/2011) and booked under Sections- 447,448,427,341,325,504,506 of the IPC and Section 3 (1) (X) SC/ST Act, 1989.
Prays that: 1. aurangabad SP immediately arrests the culprits under the SC/ ST Act, 1989 and Rules 1995. 2. a special team of police is constituted in order to arrest the culprits. 3. The victims’ statements are recorded under Section 164 4. The victims must be instantly conferred the right to enter the village temple. 5. charges are framed under section 3(1) (XI), 3(1)(V) of the SC/ ST ,1989 and section 354 of the IPC. 6. an inquiry is conducted without any further delay in order to protect the SC community from the social boycott. 7. as per Rule 7(2) SC/ ST Act and Rules, 1995 the charge sheet is filed. 8. immediate action is taken against the officer in charge of the Deb police sta- tion for failing in his legal duty to take action under section 4 of the SC/ST Act, 1989. 9. as per Rule 8 (1) (iii) of the SC/ ST Act, 1989 and Rules 1995, a permanent police station should be set up in the affected village. 10. a speedy trial is conducted. 11. as per Rule 12 (4) of the SC/ST Act, 1989 and Rules 1995 compensatory relief must be made immediately to the victims.
350 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity and Police Inaction Nawada District Written submission to the Jury
Vijay Choudhary
n July 10, 2011 Vijay Choudhury, husband of Shrimati Sheila Devi, the Panchayat Pradhan of the Biju Bigha Panchayat was working on the issue Oof old age pensions whilst sitting in the community hall. The work went on a long while and around 7:30pm he asked for a torch light and continued to work. It was then that the attackers came and threw three bombs at Mr Choudhury. Only one of the bombs exploded, however it inflicted serious injuries on him. The culprits rejoiced and said that their work had been done and then left the scene of the crime. It seems that the reason for the attack was caste based as Mr Choudhury, a Dalit community member, had been elected to the post of Village Panchayat for two con- secutive terms. To add to the perpetrators indignation, he was not even a reserve candidate and had contested both times as a general candidate. An FIR (no. 98/11) was lodged on July 10, 2011, however, no one has been ar- rested, a charge sheet has not been filed, and appropriate charges under The SC/ST Act, 1989 have not been framed. Further, no monetary or other form of compensa- tory relief has been made to the victim and/or his family. The only action taken by the authorities was to assign a bodyguard for his protection. The case has also been filed at the BSHRC (case no. 96/11) and booked under Sections 127, 126, 149, 323, 385, 307 of IPC, section 345 of Explosive Act, section 27 of Arms Act , and section 3(1) (10) SC/ST Act, 1989.
BIHAR 351 Dalit Atrocity Aurangabad District Written submission to the Jury
Suryamani Devi and Others
n October 6, 2011, Suryamani Devi (mother) and Sunayna Devi (daughter) were travelling to work in the house of landlord Munna Singh when the Otwo Dalit women were confronted by Sujit Rawani, Kela Rawani, and Puja Kumara. An argument broke out as Suryamani Devi’s son was accused of puncturing a football. The three women then began to beat up the two Dalit women. Awadesh Paswan went to the scene of the disturbance in order to protect and rescue his mother and sister. On seeing Awadesh, the attackers, armed with sticks and rods attacked him mercilessly, beating him with their weapons until he collapsed under the blows and fell unconscious to the ground. The mob then turned on Sunayna and attacked her in the same manner until she too collapsed unconscious under their brutal blows. When the victims’ family members appeared at the scene the culprits turned their vicious atten- tion to them and attacked them as well. Once the violence had stopped, their father attempted to take the unconscious Avadesh and injured Sunayna to hospital; however, the callous mob prevented him from taking his injured children. After desperately pleading with the mob he was finally allowed to take them. They were eventually taken to Magadh Medical College in Gaya. Tragically Avadesh died from the injuries he received during the attack. Su- nayna’s injuries were severe and she came close to losing her life. An FIR was lodged on October 8, 2011, however the police have failed to carry out any meaningful investigation. A charge sheet has still not been completed and no one is yet to be arrested. Further, no charges have been framed under the SC/ST Act, 1989. Since the incident, the victims and their family have received regular threats upon their lives, however, no measures have been taken by the authorities to provide them with protection. There is also reason to believe that the police have colluded with the culprits allowing them to run free and merely asking them not come into sight of the police. A case has been filed at the BSHRC (case No. 63/201) and crimes booked under sections 147, 148, 149, 341, 307, 302 IPC.
Reason for the Incidence The victims belonging to the Scheduled Caste Community. 1. The victims family didn’t support the perpetrators family in the panchayat
352 SHRC: SOCIAL AUDIT REPORT–III elections as Munna Singh was a candidate for the panchayat elections and in the process he lost. 2. asking of a months wage from Munna Singh [how is Munna Singh involved in the attack]. 3. allegation on Avadesh of puncturing a football of the upper caste.
The complaint was sent to the commission with the following prayer- 1. by virtue of the SC/ST Act, 1989 and Rules 1995, that the culprits are im- mediately arrested. 2. a special police team is formed in order to assist with apprehending any absconding culprits. 3. The following provisions are included in the charges pressed against the per- petrators: sections 3(1)(x), 3(2)(v), 3(1)(vi), 3(1)(vii), and 3(1)(ix) SC/ ST Act 1989 and section 354 of the IPC. 4. The officials who have failed in their duty to take action and investigate the allegations are immediately charged under section 4 of the SC/ ST Act 1989. 5. compensation of at least Rs. two lakh is paid immediately to the family of the deceased as per Rule 12(4) of the SC/ ST Act, 1989 and Rules 1995.
Rape of A Dalit Girl Child and Police Inaction Aurangabad District Written submission to the Jury
Nirasha Kumari
t 6.30 pm on February 15, 2011, Nirasha Kumari (15yrs), D/o Shri Madan Pashwan went to the toilet outside her house . Rakesh Sharma (20) a resident Aof the same village saw that Nirasha was alone and decided to take advantage of the situation and raped her. Due to the injuries she sustained during the raping, Nirasha became unconscious. Rakesh then took her to his neighbourhood and raped her again in her unconscious state. After a while, her family became concerned that she had been gone for so long and went to look for her. Her uncle eventually found her and when he did he was confronted by the horrific scene of Rakesh raping her again. The incident was reported at Obra Police Station and filed under section 28/11 under section 376, 1989 Section 3(1) (X). However, Rakesh Kumar has still not been arrested. No compensation has been paid to the victim or her family
BIHAR 353 Practice of Untouchability Karpi PS, Arwal Babita Kumari deposing the case
Babita Kumari
n February 12, 2010 (on the occasion of Maha Shiv Ratri) Babita, d/o Bhumeswar Rajak and her sister went to a temple to offer their prayers. The Oauthority of the temple restricted their entry to the temple because they are dalit women. They returned to their house and informed the other villagers what had happened. The villagers went to the temple to enquire about this incident. However, on arrival they were physically attacked and beaten up A charge sheet has been filed against the accused. The case is still, however, pend- ing before the court. To date no compensation has been awarded to the victims and their families.
Sexual Assault on a Dalit Woman and Police Inaction Goh PS, Aurangabad District Written submission to the Jury
Babita Kumari
n October 16, 2010 at about 4 pm Sanjay Sharma and Rajesh Sharma force- fully entered Babita Kumari’s house and tried to molest her. Babita escaped Othe attack. Sanjay and Rajesh then set her house on fire. An FIR has been lodged with the FIR No. 139/10. The victim is yet to receive any compensation. The accused people were arrested under section 341/323/436/376/511/34 of IPC. The ac- cused have been released on a bail and they have been additionally charged with SC/ ST Act section 3(1)(x) later on. The case is still pending before the commission.
354 SHRC: SOCIAL AUDIT REPORT–III Gangrape of A Dalit Girl Child Patna District Victim’s mother deposing the case
Juliya Kumari
uliya Kumari, age 10 years, D/o Tapeswar Paswan, was gang raped by three men. On August 21, 2010 Juliya along with two other children about 1 pm went to Jsearch for corns in the field. There was the gaushala of Ramesh Singh and Rajan Singh. In the evening five men were drinking at the gaushala. One of the youths was named Ansari stopped Juliya to buy some corns from her. The men raped Juliya that night and then attempted to kill her. Juliya was severely injured in the attack and was admitted to hospital where she remained for one month. The case was filed at Parsar Bazar PS under section 341, 323, 307, 376 of IPC and 3(1)(x), 3(1)(xii) of SC/ST Act.
Present status of the case: An FIR is lodged with the number 117/10. Two out of the four youths were ar- rested. The victim’s family has not received any compensation as yet.
BIHAR 355 Dalit Atrocity and Police Inaction Obra PS, Aurangabad District Written submission to the Jury
Duliya Devi, Govind Ram, Sudama Ram, Nagdev Ram, Laldev Ram
n September 19, 2011 at around 8 pm Duliya Devi W/o Shri Lal Dev Ram went outside to use the toilet. The accused persons Sabendra Singh and OPapu Singh tried to rape her and her friends Sarita Devi and Surji Devi. However, they all managed to escape the attack and get back to their home. On hear- ing about the attack, the other Dalit members of the village planned to raise their voice against the culprits. However, when the accused persons, who are of a higher caste, reached the vil- lage, they began to assault the villagers, attacking them both verbally and physically. They assaulted Dalit women and tried to burn down some of the villagers’ homes. Many of the villagers sustained injuries and were admitted to hospital. One of the victims, Nag Dev Ram S/o Sewabki Ram, immediately reported the matter to the Obra Police Station. The case has been booked under sections 447, 323, 325, 504, 506, 341/34 IPC and section 3(1)(x) SC/ST Act 1989. However, when the police reached the village the accused persons had already left. Only one out of the four accused persons has been arrested to date. The victims and their families have not received any compensation nor have the authorities taken any steps to ensure the protection of the villagers from further attacks. Many of the villagers have been forced to leave their homes due to the receipt of continuous threats from the accused persons.
356 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity and Police Inaction Narhat PS, Nawada District Written submission to the Jury
Maheshwar Ram
n October 1, 2011 around 8:30 pm Maheshwar Ram S/o Raju Ram was returning to his village from his daughter’s house. On his way home he met OAbhay Singh, Ajay Singh, Vinay Singh and Fantosh Singh. The accused persons attacked him and beat him to death. They then proceeded to throw his body into a nearby pond. His dead body was found by some villagers who informed his family and when his body was being washed for preparing for last rites, it was found that his eyes were badly damaged and other parts of body were also stabbed by some sharp object. On this a hue and cry started and the family members were forced by all three accused to do the last rites as soon as possible and threatened that they will have to face unsolicited legal proceedings. The murder was reported to Narhat Police who registered the case (case no. 102/2011) under sections 302 and 34 IPC and section 3(2)(V) of SC/ST Act, 1989. It is reported that a year and a half prior to the murder, Abhay Singh and a friend of his mistreated a Dalit woman. On hearing about this, a number of villagers includ- ing Maheshwar Ram forced Abhay to leave the village and Abhay has been seeking his revenge ever since. Also the accused are not fresh offenders rather they are hardened criminals of their locality and there are various cases already registered against them. The accused have left the village ever since it happened and it is suspected that they left the village on suspicion of getting caught for the same offence. No one has been arrested nor has Maheshwar’s family received any compensation for his murder.
BIHAR 357 Dalit Atrocity Sahuria Village, Saharsa District Written submission to the Jury
Tola Ram, Bechan Ram, Ramji Ram, Laltoon Ram, Damdor Ram, Kameshwari Ram, Kari Ram, Kameshwar Ram, Bedenshawari Ram, Lakhan Ram, Sohgiya Devi, Raju Ram, Gaunu Ram
n Sahurai village there is a tradition of playing drums during the festival of Durga Puja and it is the lower caste that are expected to play. However, on this occasion Ithey asked for payment for playing which was refused. Therefore, on September 28, 2011 they refused to play. But following several requests by the villagers they agreed to play the drums the following day, but again, in exchange for payment. The villagers called for a public meeting to address the issue on September 30, 2011 in which the lower caste villagers also participated. During the meeting Rashik Lal Yadav along with other villagers refused to pay them. Another public meeting was convened on October 1 2011, however, this time the lower caste villagers were not invited to participate. Following the meeting the Chamar caste people were socially boycotted by the upper caste people. On October 2 2011 the other villagers came and attacked the Chamar people. They were physically and verbally assaulted, their houses were destroyed, and women attacked The incident was registered at Chor Bazar Police Station (case no.269/2011) un- der sections 147, 149, 504, 427,379 IPC and section 3(1)(X) SC/ST Act,1989. To date 21 people have been arrested for these crimes. However, the victims and their families have still not been awarded any compensation.
358 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity Madanpur PS, Aurangabad District Radhika Devi deposing the case
Late Dharmendra Ravidas
ate Dharmendra Ravidas was the driver for Vinod Tiwari. On October 11, 2009, Vinod Tiwari asked Ravidas for road holding, but he refused. However Lthe other version of the story says that Dharmendra had demanded for his salary earlier that day. Tiwari reacted to this by taking Ravidas to his hotel and tying him to a pillar. Tiwari then proceeded to stick nails into and all over Ravidas’ body and also inserted a rod into his internal part. Dharmendra Ravidas died of the injuries he sustained in this sick and brutal attack. The case was registered at Madanpur Police Station (case no. 176/09) under sections 307, 302 and 34 IPC and section 3(1)(X) SC/ST Act 1989. Vinod Tiwari was awarded bail and the case is still pending full trial. Dharmen- dra’s family has still not received any compensation. It is noteworthy that Dharmendra was the only bread earner in the family and as such his sudden demise left the family both shocked and helpless. The complaint is still pending before the commission.
BIHAR 359 Dalit Atrocity and Police Inaction Neora Village, Belagarh PS, Gaya District Written Submission to the Jury
Nand Lal Paswan, Kaushalya Devi, Subash Kumar
eora Village is dominated by the Yadav family. In the village there is a very old social practice of regarding Dalits as untouchable people. On May 3, N2011 Kaushalya Devi went to use the hand water pump in the nearby Ma- hadevi temple. Seeing this Ajay Yadav, Kapil Yadav and Jiaram Yadav stopped her from using the pump. When she protested they physically and verbally assaulted her, before destroying her house. The incident was reported to the Belagarh Police Station and the case was regis- tered under section 107 of IPC. The police, however, failed to follow this up and make any investigations into the crime. The matter was later reported to the District Magis- trate who directed the police authority to conduct an investigation into the allegations. The other incident occurred on May 25, 2011. Subash Kumar was sitting on the campus of Mahadevi temple when Santosh Kumar and Raju Kumar asked him to leave the campus immediately. When Subash refused to leave, Santosh andRaju Kumar physically tortured him and his family. The case was registered at Belagarh Police Station under section 107 of IPC . To date no further action has been taken by the police.
360 SHRC: SOCIAL AUDIT REPORT–III Murder of a Dalit Police Constable and Police Inaction Aurangabad District Budhiya Devi deposing the case
Late Rajkaran Ram
ajkaran Ram, a resident of Jhiktiya Village, Aurangabad district, was em- ployed as police homeguard. On March 26, 2007 around 11 a.m. Ram went Rto Rafiganj Police Station to take rest after his duty from Rafiganj Health Center. When the victim was taking rest in police station barrack, he was shot in the chest by police in charge Vivekanand Singh. He died on the spot. Police officials kept his body in the Rafiganj Hospital Campus. The deceased family was informed by guards (chaukidaar) about his death and not by the police of- ficials. His family members with villagers went to the place where the dead body was kept. They started protesting against police incharge Vivekanand Singh and accused him for murder of the deceased. The police lathicharged on the protestors in which deceased younger son Punesh Kumar was injured and daughter Munar Kumari aged 15 years was slapped hardly which affected her mental stability. No FIR has been registered at concerned Police Station or with SP. In addition to Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989, was not charged on the accused. The accused was transferred at different place after the incident occurred. It is alleged that administration have shown idleness in the situation and no com- pensation have granted to the grieved family.
BIHAR 361 Rape of a Dalit Girl Child and Police Inaction Aurangabad District Written submission to the Jury
Nirasha Kumari
n fateful day of February 15, 2011 at 6:30 pm, Nirasha Kumari (aged 15yrs), d/o Shri Madan Paswan went to defacate in nearby pit situated north Oof the village. Rakesh Sharma (20) a resident of the same village saw that Nirasha was alone and decided to take advantage of the situation and chased her. Ac- cused choked her from the back and raped her. While raping, he beat the victim due to which she sustained injuries and became unconscious. He again took her on his shoulder and went to nearby field where he bared her totally and again raped her. When she did not return for too longer her family got concerned and started a look out for her. Her uncle eventually reached to the place of incident and confronted the horrific scene of accused raping the victim again. They shouted and caught the accused red-handed. Family members of accused reached to the spot and freed him forcefully from the clutches of victim’s family.
362 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity Mali PS, Aurangabad District Written submission to the Jury
Ranju Devi
anju Devi was contesting election for Zila Parishad from Aurangabaad dis- trict. Rajinder Singh, former Mukhiya was opposed to her candidancy and Rfielded her own candidate against her. Ranjhu devi won election on her own, this enraged Rajinder Singh and he developed enmity against her. On June 14, 2011, Bhola Prasad a co-worker and supporter of her party who actively campaigned for her at time of election was abducted and beaten to death and thrown into field by main accused Rajinder Singh and his supporters. The rumour spread that Bhola has been murdered. On June 15, 2011, Indeshwar Rao husband of Ranju Devi, went to the place of crime with his supporters. On reaching the place, Rajinder Singh and his goons attacked and opened firing on them. Indeshwar Rao was beaten and severely injured with his broken right hand. An FIR was lodged against 17 persons in Mali Police Station and case was regis- tered as case no. 46/2011 under section 145/147/149/307/323/341/364/379/504 of IPC and section 3 (1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocity) Act. The latest development is that the 16 accused have been granted bail and the main accused Rajinder Singh is still absconding.
BIHAR 363 Domestic Violence Rohtas District Written submission to the Jury
Kranti Devi
n February 27, 2013, Kranti Devi, wife of Malak Lathaur, aged 27 years, went to her sister’s in-laws house without informing her husband or family Omember. Her elder sister’s husband suddenly fell sick so she went to Mishr- waliya to see him. Here the news of her disappearance spread in the locality people started questioning her chastity. The next day when she reached home, her husband made her walk on burning woods which is approximately three metre in length to prove her chastity as it a mythology or custom in Lathaur castes that whosoever will be immoral or disgraced in character will die in the fire. On March 5, 2013, Manish Kumar a social activist filed a petition to the BSHRC requesting the Commission to investigate this case suo-motu. He requested that her husband be arrested and charged for the abuse and also that the BSHRC take legal action against local body who did not stopped such happening of incident based on gender violence.
364 SHRC: SOCIAL AUDIT REPORT–III Fake Encounter Dumaria Police Station, Gaya District Written Submission to the Jury
Awadesh Kumar and Fulchand Bhuiya
wadesh Bhuiya was working as artisan in Lovely Sweets, Jalandhar, Punjab for over ten years. On June 1, 2012, he took leave for 15 days and came to his Avillage. On June 10 2012, around 3 pm he went to feed water to his animals with Fulchand Bhuiya and Samajit Bhuiya. Until evening when they didn’t return, their families started to look out for them. On June 11, 2012, their wives accompanied with Darogi Singh, Mukhiya of Chhakrabandha panchayat went to Dumaria PS to know about their whereabouts. In between, two people were reported to be killed in police encounter and one person has been kept in custody. The deceased family went to see the body but the corpse was handed over to the aggrieved party on June 13, only after post-mortem. On June 10, 2012 in newspapers it was reported of encounter taking place between Naxalites and police personnel in Bhaluaaha Pahad nearby jungle under Daltharwa, Dumaria Police Station, Gaya district. After this incident Fuljhariya Devi, wife of Awadesh Bhuiya, Kalawati Devi wife of Fulchand Bhuiya along with District Councillor Khalik Raja filed an application letter to the President of Bihar PUCL to investigate the matter of brutal killing of innocent villagers in fake encounter cases.
BIHAR 365 Expert Comments Father Philip Manthra President, Bihar PUCL
irst of all I would also like to thank HRLN for organizing this wonderful event in our state. Today, I will share my experience in working with Musahar com- Fmunity of Bihar. Musahar are Hindu Scheduled Caste community found in the state of Bihar. The photographs which are displayed over here are the pictures of the people that are living in Bhavar Porakh, the slums nearby to this place. These people were living besides the roads in dinghy plastic tents. Last Sunday (July 12, 2013) these people were forcefully evicted from their houses by hundreds of policemen by big machines. Now I would call Praveen, the photographer who captured these gloomy scenes through his lenses, to give an account of his experience. “When I was taking these pictures, I lost my all strength and I was frozen after witnessing this depressing scene. I really wanted to talk to these people and help them out. It was raining heavily the previous night, and a mere thought of the consequences that these people may have suffered can run a chill down our spines. After looking at these scenes, a doubt easily arises on the existence of a body called “Human Rights Commission”. It feels as if a body called Human Rights commission does not exist. In the past also, these people have been threatened by the administration that it will evict the slums . On a response we sent a letter to Bihar State Human Rights Commission (BSHRC) on 15th December 2012. It is very heartbreaking to know that till date no hearing has taken place in this regard, and the BSHRC has shown an absolutely ir- responsible behavior. It was told to us that the BSHRC will revert to us soon through a letter, and it is again disheartening to note that we are yet to get any letter in this regard. Through an investigation undertaken by us, we came to know that these peo- ple have been inhabiting that slum for the last 80-90 years and 200 families also have their voter identity cards. They had been benefitting from the BPL scheme through the same address. The children are studying over there and the people also have their ration cards. When we sent a letter to the BSHRC, we got a receiving letter from them. But the stamp was missing from the letter and upon enquiring about it, they responded that no stamp is put on any of the letters sent by any of the administrative offices of Bihar. So, it can be concluded that this issue is very critical and needs a seri- ous discussion by the sitting members of the present assembly.” This account given by my friend is just an introduction of my speech. This case is not a unique one but is one amongst the many instances of atrocities against Dalits in the state of Bihar and I would like to specially emphasize upon one particular caste in
BIHAR 367 within the Dalits which is the Mushar Community. There are several Mushar colonies in Patna, and the situation of all these colonies is the same. The main profession of these people is rag picking and even their children are involved in it. They make their living through this unhygienic work. They fight for their rights every day and every moment,and there is an urgent need for the BSHRC to intervene in this matter and to make for some provisions for the relief of these people.
368 SHRC: SOCIAL AUDIT REPORT–III Rajeshwar Paswan NCDHR
e filed at least 50 cases at BSHRC along with FIR, medical reports and case briefs. Out of the 50 cases filed they investigated only two cases. Also, Wwe have filed at least 70 cases at the National Human Rights Commission and there has been no response. I do not know why the commission is established and for what reason. In Bihar there is a wide range of human rights violations among women and chil- dren. I would like to refer a case of Aurangabad district. Dharmendra Ravidas was the driver for Vinod Tiwari. On October 11, 2009, Vinod Tiwari asked Ravidas for road holding, but he refused. However the other version of the story says that Dharmendra had demanded for his salary earlier that day. Tiwari, as a reaction to Dharmendra’s request, took him to his hotel and tied him to a pillar.. Tiwari then proceeded to stick nails into and all over Dharmendra’s body and also inserted a rod into his internal part. Dharmendra Ravidas died of the injuries he sustained in this sick and brutal attack. The case was registered at Madanpur Police Station (case no. 176/09) under sections 307, 302 and 34 IPC and section 3(1)(X) SCSTPAA 1989. The eyewitnesses are his mother and brother. When the victim asked for water he was given alcohol instead of water and he was undressed. His mother was asked to clean up the blood. The accused was jailed for 1 or 2 years and he is now bailed out. The case is now at juvenile justice board and Sikkim court. The accused should be charged u/s 302, 307 of IPC. He should also be charged under section 311, 313, 312 and 325 under SC/ST Act. The police only charged him under section 310. The complaint was filed with BSHRC and NHRC. But till date there is no response to the case. Recently, I was at Muzzafarpur. A woman was walking with her husband. The husband was tied and his wife was gangraped by four people. Also, a huge amount of soil and cloth was put in her internal parts and she was murdered there. Till date the accused have not been arrested. This is the situation of Bihar. In the light of the increasing number of human rights violations, the commission is keeping its eye closed and is silent.
BIHAR 369 Rupesh State Advisor, Supreme Court Commissioner on Right to Food
he sole purpose of organising an independent tribunal is that in these types of seminars we try to find out the level of the efficiency of an organization like TSHRC which was solely established as an answering machine to the people for the violation of their human rights. So, in short I mean to say that when we conduct a hearing on some case, then there is a need to diagnose its problems. It can be a men- tality problem, structural problem or procedural problem etc. and we need to address that problem. The cases which were put by Mr. Rajendra Prasad had some shortcom- ings from the sides of the government. The witness testimonies which we heard in the mean time, we can conclude from them that there is some sort of limitations on the part of the justice delivery system of the government and it needs to be improved. The second issue which I want to deliver from this platform is that SHRC is a toothless body. I am not being suspicious on the works of SHRC as they have really many times taken up many issues pro-actively but the actual problem which the HRC suffers in each of its case is its abidingness. All the judgments of SHRC are not bind- ing on the government and the government is not obliged to respect the decisions of HRC. If we take an example of the people who die due to starvation in flooded areas, we will come to know the SHRC instead of being firm with the government gets lulled by the compensation which the government provides to the family members in form of Rs. 2 lakh and a BPL card and the HRC gets swayed away thinking that the government succumbed to their pressure and did some compensatory measure whereas they have a duty to take precautionary measure. This could not be called as an effective justice delivery and the HRC needs to improve in order to make this justice delivery effective. They just act like an advisory body to the government. and work like an NGO. The difference is just as they were given a governmental legitimacy and we are working by our own. As per present provisions, there is no such provision for the Bihar SHRC that their decisions will be binding on the government. So, there is a need of stricter laws which can make the decisions of the SHRC binding on the government. The third issue which I want to discuss about is the weakness of the justice deliv- ery at the local level. Bihar is one of the very few states which still has justice delivery systems like Panchayati Raj, mobile courts to decide on root level. There are many local institutions which can give proper judgments at their own level but looking at the enormous and vivid volumes of the cases filed in the SHRC, it is evident that the local justice delivery system is failing in finishing the cases at their own level. It is an
370 SHRC: SOCIAL AUDIT REPORT–III indication that there are some limitations in our local level justice delivery system. It has always been discussed that the SHRC needs to be specific about the redressal of human rights issue but due to failure of this local institution in solving the issues, forces a victim to move to HRC for their redressal. So, SHRC cannot specifically han- dle the issue precisely related to human rights until these local justice delivery systems are made stronger enough to handle other issues. Last issue which I would like to raise is the effectiveness of decisions of the jus- tice delivery systems. Taking an example of rape cases, we see that the victims get the order for compensation, but they never get it even after 10-15 years. So, in their anxi- ety to get relief from any institution, they move to various other institutions which ultimately contribute to overloading and a possible future breakdown of the system.
BIHAR 371 Chapter-III Jury Report
372 SHRC: SOCIAL AUDIT REPORT–III BACKGROUND
Human Rights Law Network together with several civil societies organisations oper- ating in Bihar, conducted an Independent People’s Tribunal (IPT) on July 28, 2013 at Patna Youth Hostel, Patna, Bihar. The aim of this exercise was to suggest measures towards streamlining and strengthening the BSHRC to function more efficiently and effectively so that it can perform its statutory role as an effective mechanism of justice delivery. Human rights commissions (HRCs) were constituted and given the shape of stat- utory bodies in order to ensure quick and affordable justice to the poor and deprived classes of the society. Since the judicial processes in the country have become too costly and time consuming, it is almost impossible for the poor to secure timely justice at affordable costs. So, it was expected that HRCs will be able to remedy this situation with their prompt and equitable function. To some extent BSHRC has done some good works. The commission is disposing of cases regularly. But seeing the volumes of complaints in the state the Bihar Human Rights Commission proves to be unequal to the task. It is a matter of concern that the SHRC in Bihar has, for various reasons, not been functioning in the spirit and for the purpose for which this statutory body was consti- tuted. It is advisable that SHRC should have one more person from the judiciary apart from the chairperson. The plight of pending cases before the BSHRC, some of which were put up before the jury during the IPT proves that the BSHRC is inefficient to perform its functions properly. It was felt that one more person from judiciary should man the commission. An invitation was sent to the Bihar SHRC to attend the IPT to express their point of view about the functioning of the commission but nobody from the commission turned up. But after IPT hearing BSHRC chairman S.N.Jha told media that the charge of inaction by BSHRC as raised in the IPT were very unfair. Nobody talked about the cases they disposed off regularly. Nobody was bothered to understand how time pressed they were. He further stated that shaping people’s perception through one- sided opinion is very unfair.
BIHAR 373 It was good to see that Mr. Jha whose reputation as a judge was very good, trying to do justice with his present assignment. In spite of this, the cases presented before IPT presented gloomy picture in terms of human rights violations in Bihar. It appears that BSHRC is not provided equipped staff, an effective investigation agency or requisite financial help, and also that the government feels unnecessary burden because of it. A number of people who have gone with their complaints to the commission deposed before a jury panel comprising:
• Mr. Kishore Ram (Retired District Judge) • Mr. Ram Jag Ram (Retired S.P.) • Mr. Sukant Nagarjun (Senior Journalist) • Mr. Surendra Kishore (Senior Journalist)
Three dozen cases were presented before the jury members. It was quite noticeable with the cases that were put before the jury panel that in the complaints against the police, the commission invariably refers the complaints back to the police only, and conse- quently on the basis of the report submitted by the police, the complaints are deemed to be false and thus disposed off. Thus, there is a clear conflict of interest here as invariably the same police officer ends up either investigating or influencing the complaint against whom it was made in the first place. So, this faulty process of seeking reports from the respective government entities in the complaints against them adversely affects the justice delivery mechanism of the commission. The cases put up before the jury in the IPT demonstrates that violation of human rights of dalits and other weaker sections of the society continue unabated. The case of land grabbing and atrocities on dalits by dominant and economically influential people shows that the SHRC in Bihar has failed to perform its mandatory functions. As the majority of human rights violations cases coming to the commission are against the govern- ment itself, it is therefore quite obvious that the state government’s been keeping the commission in a crippled state so that the large number of human rights violations by state agencies do not come to light and the government is saved of embarrassment. It is therefore necessary that state human rights commissions be made financially independent of the control of government.
OBSERVATIONs
• The majority of the cases pertained to allegations of mishandling of cases of human rights abuses by the police. • There were serious allegations of collusion of police authorities with the accused in several cases. In case of sexual harassment of dalit woman Kunti devi and others of Aurangabad dis- trict they got justice neither from local police nor from the SHRC. • Impartiality of police authorities was questionable in many of the cases during investigation. • Glaring instances of lack of sensitivity on the part of the officials was quite visible while dealing with serious human rights violation cases. • Even in serious cases of custodial death, murder, rape and sexual harassments, the indifferent attitude of the commission is quite baffling.
374 SHRC: SOCIAL AUDIT REPORT–III RECOMMENDATIONs
• The common man’s access to SHRC is both cumbersome and time consuming. In case of Rupashree Dasgupta of IGIMS commission was giving only dates. • The commission should have its own independent agency with sufficient number of person- nel. • There should be a one-time review of all the cases pending before the commission for the past five years. • In case of tribal atrocity and murder in Siwan district in 2011, the complaint was submitted to BHRC on November 18, 2011. As narrated before jury members no action was taken by the commission. • The commission should take active help from the civil society organisations and individuals working on issues related to the human rights, in order to sort out all the pending cases in a time bound programme. • It is a very important function of the commission to encourage Civil Society Organisations (CSOs) working for the welfare of dalits, women, children and other weaker sections of the society. The commission should promote and facilitate the work of such organisations. • All cases of land grabbing of dalits, sexual harrasment, atrocities, custodial deaths and child abuse should be taken by the commission on priority. The commission should make public all the decisions taken by it and should also make its presence felt through the media. • All cases of human rights violations reaching the commission either directly by the public or through various agencies including the NHRC should be duly given cognisance. Each case should be acknowledged in writing and a time period should be fixed for its disposal. • A representative of the commission should attend all public hearings, conference and seminar held by CSOs and other organisations for the conservation and protection of human rights. • The commission should put pressure on government departments to take appropriate action on the recommendations made by it. The recommendations of the commission cannot and should not be relegated to a waste paper basket. The commission should forcefully pursue its recommendations and bring any inaction by the government to light through print and electronic media. • One of the pretexts often extended by the state human rights commission for its inaction in matters concerning violation of human rights is that the matter has been referred to a court of law and therefore it is sub judice. The spirit of the law as enshrined in Section 12 (b) of PHRA 1993, gives the commission sufficient power to intervene in any proceeding involving any allegation of violation of human rights pending before the court, with the approval of such courts. It is therefore essential that the commission, must, in all important cases, intervene in the matter and should not hesitate to approach courts to make its presence worthwhile. • Even if a complainant makes a representation or sends the complaint copies to several admin- istrative, constitutional or statutory bodies, the SHRC should not wait for a query or a reply from any of such institutions to whom it is addressed. The SHRC should immediately take action on such issues raised if they fall within their jurisdiction. • The institutional mechanisms envisaged in the PHRA, 1993, should be created in the state of Bihar; special attention should be paid to the creation of human rights courts in every district. • The state human rights commission must take all such cases promptly and seriously in which
BIHAR 375 there are complaints against state agencies, such as police or administrative department, for harassing witnesses or framing false cases against persons fighting for the conservation and protection of human rights. • In all such cases in which the police and prosecution does not invoke the provisions of special Acts such as the SC/ST (Prevention of Atrocities) Act or the Juvenile Justice Act etc., and end up putting a chargesheet only under substantive laws, the SHRC should intervene in the courts, requesting the judiciary to take cognisance of the matter under specific laws too. • The SHRC should particularly be very vigilant about the conservation of human rights in all custodial and other institutions like prison, juvenile justice homes and protective homes for women and such institutions like those meant for persons with disabilities etc. One of the most effective methods of ensuring this will be an unplanned, sudden and surprise visits of these institutions by the members of the commission to see that human rights are not being violated and that proper facilities are provided, and accordingly make recommendations for improving the situation of these institutions. • The government should amend the PHRA, 1993, according to recommendation given by the committee constituted by the NHRC (and which were excluded in the 2006 amendment of the Act) and headed by Justice Ahmadi, to empower human rights commissions and make it effective so as to be able to perform its role as guardian of human rights in the country. • The members of the human rights commission should be appointed strictly as per procedure given in the Act. Apart from the chief justice of a high court who shall be the chairperson, a judge of a high court or a district judge of the same state, and one other member should be appointed from amongst persons having knowledge of or experience in matters relating to human rights - as per Section 21 (2) of the Act. As far as possible, police officers should not be appointed as members. The chairperson and members of the commission should be sent for training, with a view to sensitise them and how to best implement the PHRA, 1993, for protecting human rights and giving relief to the victims, and also for punishing the perpetra- tors. Vacancy in the commission, if any, should be filled up immediately. The person who has been appointed should be available and willing to work with the commission immediately. • All the respective officers i.e. Secretary, IGP, and other staffs and investigating agency of the commission should be appointed along with the commission, itself, as required by Section 27 of PHRA, 1993. • The state government should provide sufficient budget for the commission to utilise its serv- ices properly for fulfilling the purposes of the Act, as required by Section 33 of the PHRA, 1993. • The commission should regularly prepare and submit annual reports to the state government, or special reports in particular matters. Also, the state government shall cause the annual and special reports of the state commission, to be laid before state legislature, along with a memo- randum of action taken, or proposed to be taken on recommendation of the commission, and the reasons for the non-acceptance of the recommendations, if any, as provided by Section 28 of PHRA, 1993. • In case the state government does not carry on the instructions or directions given by the state commissions, the commission should not hesitate in approaching the state high court, for causing writ of mandamus against the government to carry on the directions. • The state commission should spread human rights literacy among various sections of society
376 SHRC: SOCIAL AUDIT REPORT–III and promote awareness of the safeguards available for the protection of the rights through publications, media, seminars etc as envisaged in Section 12 of the Act. • In case the complaint is against the police, the commission should get a reply thereon, but should not just rely on the police report only and close the case. Instead, it should utilise its own investigating agency to verify the original case. • For the purpose of providing speedy trial of offences arising out of violation of human rights, the state governments with the confidence of the chief justice of high court, should specify every district and session/fast track court to be a human rights court, to file the said offences, and also specify a public prosecutor or appoint an advocate as a special public prosecutor, for the purposes of conducting cases in that court, as so enshrined in Section 31 and Chapter 6 of the Act.
BIHAR 377
maharashtra Naresh Gosavi | Salina Wilson
SL.No 01 City Ahmednagar Total Cases before Jury 36 Date June 23, 2012 Jury: Ms. Shanta Ranade, Freedom fighter; Ms. Roshni Nair, Assistant Professor, Centre for Criminology and Justice, Tata Institute of Social Sciences, Mumbai; Ms. Pratibha Shinde, Lok Sangharsh Morcha; Dr. Sanjay Jain, Assistant Professor, ILS Law College, Pune; Prof. Motiraj Rathore, Vasantrao Naik University, Aurangabad Networking Groups Vimukta Bhatke Sangharsh Mahasangh Maharashtra Pradesh; Satya Shodhak Samiti Amaravati; Akhil Bhartiya Hizara Association Niyojit, Lok Adhikar Andolan Ahmednagar; Ramushi Berad Haq Parishad Maharashtra; Adi- vasi Fhase Pardhi Sanghatan Ahmednagar; National Alliance for People’s Movement The independent people’s tribunal on the functioning of maharashtra state human rights commission EXECUTIVE SUMMARY
Maharashtra State Human Rights Commission
The Maharashtra State Human Rights Commission was established on March 6, 20011. The Writ Peti- tion (No. 1146 of 1997) filed by People’s Union for Civil Liberties (PUCL) in the High Court at Mum- bai acted as a catalyst in the setting up of the State Human Rights Commission vide its order dated February 19, 1999. The Government of Maharashtra through its Resolution of the Home Department (No. HRC- 1099/378/Pol-14) dated January 15, 2000, decided to set up a State Human Rights Com- mission. The Government of Maharashtra vide its Notification dated May 30, 2001, also specified that in the exercise of the power conferred by Section 30 of the Protection of Human Rights Act, 19932 (hereafter referred to as PHRA, 1993 or ‘The Act’) and with the concurrence of the Chief Justice and Judges of the High Court of Judicature at Bombay, a court of session in each district of the state would be a human rights court to try the offences under the PHRA, 19933. The government promulgated the Maharashtra State Human Rights Commission Rules, 2000 and published them in the Gazette of the State Government vide Home Department notification no. HRC 1099/378/CR-49/Pol- 14 dated August 18, 20004.
Composition The MSHRC currently consists of S.R. Bannurmath as Chairperson, Shri B.D. More as a member and Shri Mafiul Hussain as Secretary. The position of a second member as according to the PHRA, 1993, appears to be vacant, because only one member is listed on the commission’s homepage.5 Justice Ban- nurmath had been the Chief Justice of Kerala from 2009-2010 and joined the MSHRC as Chairperson in September 2013.6 Justice Arvind Sawant was the first Chairperson in office from March 2001 to April 2002.7 The second Chairperson Justice Kshitij R. Vyas held the office from August 2007 to Feb- ruary 2012. However, there is a good case to believe that the MSHRC had long terms of personnel vacancies since its establishment. The Asian Centre for Human Rights, for instance, states in a report on human rights in Maharashtra in 2007 that: “Since the resignation of Chairperson Justice Arvind Sawant in April 2002 in protest against the indifferent attitude of the State Government towards the commis-
1. http://www.mshrc.gov.in/ 2. http://nhrc.nic.in/documents/Publications/HRActEng.pdf 3. MSHRC Annual report 2001-02, Chapter 1, 1.6 4. MSHRC Annual report 2001-02, Chapter 1, 1.11 5. http://www.mshrc.gov.in/ 6. http://www.mshrc.gov.in/ 7. RTI filed by Adv Wesley Menezes at the MSHRC dated June 27, 2013
MAHARASHTRA 381 sion, the commission had been functioning without a chairperson.”8 Supposedly the commission´s first member Justice A.D. Mane functioned temporarily as acting chairperson.9 Moreover, according to the report on the celebration of the International Human Rights Day on December 10, 2012, since March 2012, until September 2013, no chairperson was appointed at all.10 Accordingly, all complaints received during the time of vacancy were pending. Long periods of vacancies contravene the Paris Principles of adequate powers of investigation. The RTI filed by HRLN enquiring about the appointment and duration of office by chairpersons was received by the MSHRC on December 31, 201311. The following table was shared by the MSHRC as part of its response.
SN Name Designation Period 1 Justice Arvind Sawant Chairperson 12/3/2001 to 12/4/2002 2 Justice K.R Vyas Chairperson 21/8/2007 to 22/2/2012 3 Justice S.R Bannurmath Chairperson 12/9/2013 till date Clearly, from the above table we can infer that between the periods April 2002- August 2007, which is nearly five years and February 2012- September 2013, there has been no chairperson in the MSHRC.
Jurisdiction The Maharashtra State Human Rights Commission has de jure power and responsibility to: • inquire suo motu or on a petition presented to it by a victim or any person on a victim’s behalf into a complaint of; • violation of human rights or abetment thereof; • negligence in the prevention of such violation by a public servant; • intervene in any proceeding involving any allegation of a violation of human rights pending before a court with the approval of such court; • visit under intimation to the state government, any jail or any other institution under the con- trol of the state government, where persons are detained or lodged for purposes of treatment, reformation or protection, to study the living conditions of the inmates and make recommen- dations thereof; • review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective imple- mentation; • review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; • undertake and promote research in the field of human rights; • spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, semi- nars and other available means;
8. http://www.achrweb.org/reports/india/AR07/maharastra.htm 9. Justice A.D. Mane signed the MSHRC Annual report 2001-02 dated 15 August 2004 as Acting Chairperson. 10. http://www.mshrc.gov.in/downloads/10 percent20Dec percent202012.pdf 11. RTI filed by Ms. Salina Wilson in December 2013
382 SHRC: SOCIAL AUDIT REPORT–III • encourage the efforts of non-governmental organisations and institutions working in the field of human rights; • such other functions as it may consider necessary for the promotion of human rights
Accessibility Any victim alleging a human rights violation or any other person on the victim’s behalf can make a complaint to the MSHRC in person, by post or by fax. The commission is located at 9, Hajarimal Somani Marg, about 200 metres from Chhatrapati Shivaji Terminus (formerly the Victoria Terminus). The complaint may be written in Marathi, Hindi, English or Gujarati and is free of charge. The commission assures everyone a patient hearing.12 Complaints can be made by post or by fax, but the person who makes a complaint is expected to visit the commission as the case may be in the ongoing procedure. Although the commission´s office can be reached easily via public transport for those living in the Mumbai area, financial considerations may prevent persons from travelling to Mumbai if they reside in other regions of the state. The commission received 1,45413 complaints within the first year (2001-02). The largest number of complaints in 2001-02 were received from the Konkan Division (782) followed by the divisions of Pune (222), Nashik (143), Aurangabad (116), Amravati (100), Nagpur (91).14 More than one-third of the complaints (520) were received from Greater Mumbai and Navi Mumbai, followed by the Thane District (239) and Pune District (142). These three together make up almost two-thirds of all cases out of all 35 Maharashtra districts. The geographical distribution of complain- ants may be the result of the close proximity to the MSHRC office in Mumbai and possibly reflects the limited accessibility of the MSHRC to persons living outside the Mumbai area.15 The official homepage provides announcements and information on the Maharashtra State Hu- man Rights Commission and its ongoing activities. Unfortunately the homepage is not up to date and is de facto only available in English language. Although the homepage contains a button to switch to Marathi language the actual content is only available in English, the consequence being that the access is limited to persons who are able to understand English. Incidentally, the information is hardly acces- sible by persons who have no internet access or are illiterate. Given the fact that state human rights commissions should spread knowledge about human rights and promote human rights mainly among the most disadvantaged people it is questionable that the large majority of complaints are made by the urban population close to Mumbai and the fact that the homepage is only available in English, which is certainly not the language broadly spoken by the rural and less educated population in Maharashtra.
Operational Efficiency The MSHRC received its first complaint on March 30, 2001, little more than two weeks after the commission´s establishment. Although state human rights commissions are duty bound to furnish an- nual reports (and special reports), the MSHRC published no single report on their homepage. The only indirectly available annual report is of 2001-02. The report was sent after an RTI request was made by
12. http://www.mshrc.gov.in/Content.aspx?ID=675 13. Therearetwoslightly different numbers of complaints (1454 and 1458) mentioned in the MSHRC Annual report 2001-02 14. MSHRC Annual Report 2001-02, Chapter 5, 5.2 15. Other factors might be considered additionally due to the fact that Raigad district, for instance, is similarly close to the MSHRC office but only 13 complaints were received thereof. See MSHRC Annual report 2001-02, Chapter 5, 5.2 and Annexure 5
MAHARASHTRA 383 an advocate, the response to which was later accessed by HRLN’s team.16According to the report, a total of 1,454 complaints were received - 542 cases were processed during the same year and 538 com- plaints out of them were eventually disposed, because they were considered not within the jurisdiction of the commission.17 In other words not more than four cases were further proceeded by the MSHRC which is less than one per cent of the decided cases and hardly more than 0.3 per cent of the received complaints. Despite the fact that according to the MSHRC´s Progress Report of 201318 the relation between received complaints and disposed cases for the following years is not quite as poor as it was in the first year, the overall rate still remains concerning. According to the Progress Report of the MSHRC up to 2012-13,19 more than 80 percent of the received complaints were disposed.20 Moreover the reports given by persons during the Independent People´s Tribunal on the func- tioning of the Maharashtra SHRC, as elaborated in detail in the last section of the current report, indicate that the above stated procedure does not always work out in practice since, for instance, not all complainants were informed if and why their complaint was not considered within the commission´s jurisdiction.
PATTERNS OF HUMAN RIGHTS VIOLaTIONS IN MAHARASHTRA
Human Rights Violations by Security Forces The Maharashtra State Human Rights Commission states that the largest number of complaints are received against the police department. Likewise other institutions, like the Asian Centre for Human Rights (ACHR) record gross human rights violations by Maharashtra’s security forces including custo- dial deaths and extra-judicial executions.21 According to the Indian National Crime Records Bureau (NCRB), Maharashtra tops the list of total custodial deaths in the country. According to the statistics available from 2000 to 2011, 297 cases were reported from Maharashtra itself.22 The Supreme Court has repeatedly reiterated that a “custodial death is a graver crime than, perhaps, a case of murder.” Unfortunately, only 41 FIRs and a sum total of 19 chargesheets have been filed while judicial inquiry has only been initiated in four such cases. Inde- pendent estimates by organisations such as Human Rights Watch indicate, moreover, that the estimated number is likely to be much higher than the NCRB data suggests. Furthermore, instances of custodial torture not resulting in death are usually not recorded. Thus, no accurate data is available for the total number of victims of custodial torture though the number is obviously much higher.23 A report by the Time Magazine indicates that more than 1,200 extra-judicial killings had hap- pened in Maharashtra from 1992 till early 2003.24 For more recent data an independent estimate by the
16. RTI filed by Adv Wesley Menezes at the MSHRC dated 27/06/2013 17. MSHRC Annual report 2001-02, Chapter 5, 5.11 18. http://www.mshrc.gov.in/WebFiles/Progress percent20Report percent20of percent20MSHRC percent20April. pdf 19. RTI filed by Adv Wesley Menezes at the MSHRC dated 27/06/2013 20. Pendency up to 31st March 2013 was 10627 and pendency up to 27thJune 2013 is 10627+ 746 = 11373 according to the RTI filed by Adv Wesley Menezes at the MSHRC dated 27/06/2013 21. http://www.achrweb.org/reports/india/AR07/maharastra.htm 22. Crime in India. New Delhi: National Crime Records Bureau, 2012. Accessed November 6, 2013. http://ncrb. nic.in/. 23. http://www.achrweb.org/reports/india/AR07/maharastra.htm 24. Perry, Alex. “Urban Cowboys.” Time Magazine, January 6, 2003.
384 SHRC: SOCIAL AUDIT REPORT–III ACHR indicates, for instance, that at least 36 naxalites have been killed in extra-judicial killings during the 2006 naxal protests in Maharashtra, in addition to the large number of civilians killed by indiscrimi- nate firing during the protests. Mumbai has been synonymous with extra-judicial killings following the 1990s. In an ongoing case the Supreme Court is adjudicating a plea regarding 99 such extra-judicial killings that occurred between 1995 and 1997.25
Farmers Suicide Maharashtra currently accounts for one-fifth of farmer suicides in the country. In fact, it has witnessed 54,000 farmer suicides since 1995. Until 2003 the number of farmers committing suicide in Maharash- tra was comparatively low (only 170 farmers committed suicide in Maharashtra in 2003).26 However, since 2004 the number is increasing tremendously every year.27 The National Crime Records Bureau (NCRB) data for Maharashtra in 2012 shows that at least 3,786 farmer suicides occurred that year which is almost 450 more than the state saw in 2011.28 It is significant to note that suicide cases are on the rise even though the farming population is shrinking all over the country and more so in Maharash- tra where migration to cities occurs most frequently and rapidly.29 The worst affected category of farmers are the cotton farmers from the Vidarbha region comprising the six districts of Amaravati, Akola, Washim, Buldhana, Yavatmal, and Wardha. In fact, of the three million farmers in the western part of Vidarbha, more than 75 percent live in conditions of extreme distress.30 One reason for the sharp increase of farmers committing suicide in Maharashtra, especially in the cotton predominated area of Vidarbha, is presumed to be the large imbalance between expenditures and yields that led to a decline in profit incomes to levels, which were significantly negative. While the yield of cotton in Maharashtra was much lower than that in other Indian states, the costs of cultivation registered an increase of 45.2 percent in the period 2000-01 to 2002-03 for example, which surpassed those of all other states in India.31 In 2006, the State government acknowledged this issue and announced Rs. 3,750 Crore relief package for farmers living in the six worst affected districts mentioned above. The relief package prom- ised to waive off farmers’ entire overdue interest and make farmers immediately eligible for new loans.32
Malnutrition While India has achieved some success in income poverty reduction, it has been less successful in reduc- ing malnutrition. About half of the population, particularly children and women - the most vulnerable groups - suffer from various forms of malnutrition and a quarter of them suffer from severe malnutri-
25. Anand, Utkarsh. “Extra-judicial killings.” Indian Express, November 24, 2012. 26. Mitra, Siddharta and Sangeeta Shroff 2007: “Farmers’ Suicides in Maharashtra”Economic and Political Weekly42 (49): p. 73-77. 27. Sainath, P. “Farm suicide trends in 2012 remain dismal.” The Hindu, June 29, 2013. 28. Alok Deshpande, http://www.thehindu.com/news/national/other-states/maharashtra-government-admits-to- rising-farm-suicides/article4963344.ece 29. P. Sainath, “Farm suicides rise in Maharashtra, State still leads the list” http://www.thehindu.com/opinion/ columns/sainath/farm-suicides-rise-in-maharashtra-state-still-leads-the-list/article3595351.ece 30. Supra note 1 31. Mitra, Siddharta and Sangeeta Shroff 2007: “Farmers’ Suicides in Maharashtra” Economic and Political Weekly42 (49): p. 76f. 32. http://www.achrweb.org/reports/india/AR07/maharastra.htm
MAHARASHTRA 385 tion. According to an article published in 2004, middle-income states such as Kerala and Tamil Nadu performed actually better than some wealthier states like Maharashtra.33 The widely-cited data available on the malnutrition situation in Maharashtra is the third Indian National Family and Health Survey of 2005-06 (NFHS-3). A Malnutrition Monitoring Committee was established for Maharashtra that came out with a report of the years 2007 to 2012. Additionally, a Pune based NGO called Support for Advocacy and Training to Health Initiatives (SATHI) published a report on nutritional crisis in Maharashtra in 2009. However, both the reports substantially rely on the outdated NFHS-3 Report. According to the SATHI report almost half of Maharashtra’s children are undernourished and 45,000 children die of malnutrition every year. Furthermore one-third of adults are underweight, and 15 percent severely underweight. Against widely held opinions, malnutrition is not limited to remote tribal or rural areas in Maharashtra. Instead, there are millions of undernourished people living and working in Maharashtra’s urban centers.34 Nonetheless tribal areas have been much worse hit than those in urban areas. As a consequence, the state government was forced to acknowledge the problem of malnutrition amongst tribal children in 2004 when it accepted the estimate that 9,000 tribal children were dying as a consequence of malnutrition. In fact, Ananda Pawar, a renowned activist for tribal rights claims that the IMR in districts dominated by tribals is as high as 68 per 1,000.35 What is appalling is that the State only spends 0.8 percent of its GDP on the mid-day meal scheme and Integrated Child Development Scheme (ICDS). These schemes are currently the two major gov- ernmental programs in Maharashtra to prevent deaths caused by malnutrition. Yet, they are criticised, for instance, because severe malnutrition is often underreported in the ICDS and only 12 percent of schools surveyed provided mid-day meals and none of the meals provided the stipulated calorific re- quirement. This may be attributed to the poor implementation and severely limited budget allocation of these schemes.36
Crime Against Dalits and Adivasis Certain areas of Maharashtra have been rife with unrest and caste tensions. In 2006, a dalit woman and her three children were brutally tortured and eventually killed for testifying against certain upper caste persons in a case involving the murder of four members of a dalit family by upper caste persons belonging to Powar and Kalar communities. This caused a series of violent protests in its wake that were violently suppressed by the government. Of the 31 dalits who were arrested for participating in demo- cratic protests, most were arrested without warrants and a number of people complained of custodial torture. However, the repression of this wave of protests triggered an even bigger series of protests in the following few months in the course of which several trains and buses were burnt. Asha Chimedia, a former teacher in Hindi School Ramnagar, Dombivali, Thane district, is a victim of caste abuse and sexual harassment. She has filed two cases in a local court in Kalyan, Thane district, against each offence. However, all her hard work has been lost on the unheeding state machinery.37
33. Radhakrishna, R. and C. Ravi Source 2004:“Malnutrition in India: Trends and Determinants.”Economic and Political Weekly39 (7): p. 671-676. 34. http://www.thehindu.com/news/national/maharashtra-faces-growing-urban-malnutrition/article3342953.ece 35. Gunasekaran, S. Determinants of Infant and Child Mortality in Rural India. Delhi: Kalpaz Publications, 2008. 36. http://infochangeindia.org/children/news-scan/45000-children-die-of-malnutrition-every-year-in-maharashtra. html 37. RahiGaikwad, “SC teachers face caste abuse in Mumbai” http://www.thehindu.com/todays-paper/tp-national/ sc-teachers-face-caste-abuse-in-mumbai/article1351826.ece
386 SHRC: SOCIAL AUDIT REPORT–III The current atmosphere of inter-caste tension in districts like Nashik and Bhandara, however can- not be overlooked and should be an immediate cause for concern. The state government had even announced its intent to arm the dalits so as to enable them to defend themselves against atrocities that have been routinely committed by upper-caste people in the past.38
Situation of Muslims in Maharashtra A committee of social scientists headed by the retired civil servant Mehmoodur Rehman was set up five years ago to study the educational, social and economic situation of Muslims in Maharashtra. The committee published a report with their research findings in October 2013. According to the report, almost 60 percent of Muslims live below poverty line (BPL) in Maharashtra and further 25 percent only slightly above poverty line.39 While 70 percent of the Muslims live in urban areas and face problems with housing, the remaining 30 percent who live in rural areas are said to have insufficient access to governmental poverty alleviation programmes. Regarding educational issues only 2.2 percent of the total Muslims complete their education (the number for women is even less with 1.4 percent). The committee expresses further concern as related to gender equality. The work participation rate for Mus- lim women in Maharashtra, for instance, is only 12 percent, whereas the total work participation rate for Muslims in Maharashtra is 32.4 percent. The report also expressed concern over police harassment and the large number of cases registered against Muslims. The jail occupancy statistics for Muslims for example range high between 32-35 percent as compared to the total populace jail occupancy statistics in Maharashtra of 10.6 percent.40
Crimes Against Women A large volume of legislation has been introduced to create a category of crimes labeled ‘crimes against women’. This category of legislation includes crimes under the Indian Penal Code (IPC) as well as the special and local laws that include legislation such as the Immoral Traffic (Prevention) and the Dowry Act. The most recent statistical survey was conducted by the NCRB in the year 2012 and based on the government’s projected mid-year female population in 2012. However, independent estimates indicate that ‘crimes against women’ are grossly unreported, making the NCRB data somewhat suspect. According to statistics compiled by the State Crime Records Bureau of the Criminal Investigation Department, in 2011, Mumbai got the dubious distinction of having the highest number of rape cases (221) in Maharashtra. Also reported in the city were 553 molestation cases, 162 sexual harassment cases and 191 cases under the Immoral Traffic Prevention Act. Although there was a decrease in the overall crime rate throughout the State in 2011, crimes against women like kidnapping, dowry deaths, rape, molestation, and attempts to commit murder for dowry are rising. A 27 year old woman was molested in full public view by her friend in July, 2012, when she re- fused to continue her relationship with him after she came to know that he was cheating on her. She approached the deputy police commissioner of that zone, requesting him to register her complaint in another police station as she feared that a police complaint in her area would disgrace her family and relatives. Despite repeated pleas, the official did not file a case but instead intimidated the victim.
38. Supra note 1 39. http://www.newindianexpress.com/nation/60-per-cent-of-Maharashtras-Muslims-below-poverty-line- Panel/2013/10/22/article1849760.ece 40. Ibid.
MAHARASHTRA 387 the independent people’s tribunal jury panel social audit report Chapter-I Patterns of Violations and Functioning of Mshrc
390 SHRC: SOCIAL AUDIT REPORT–III Introduction
he present chapter examines the functioning of the Ma- harashtra State Human Rights Commission (MSHRC) and the specific patterns of human rights violations in the state of Maharashtra. The investigation is mainly based on an analytical framework which refers back to theT Paris Principles. Paris Principles
The Paris Principles were accepted by the United Nations General Assembly in 1993 and require National Human Rights Institutions (NHRIs) to protect and promote human rights and bridge between the state and the wide range of non-governmental players. Paris Principles provide the international benchmarks through which NHRIs can be evaluated. Six main quality criteria are defined: • Mandate and competence: a broad mandate, based on universal human rights norms and standards; • Autonomy from government; • Independence guaranteed by statute or constitution; • Pluralism; • Adequate resources; and • Adequate powers of investigation.1
FUNCTIONING
Establishment The Maharashtra State Human Rights Commission was established on March 6, 20012. The Writ Petition (No. 1146 of 1997) filed by People’s Union for Civil Liberties
1. http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Pages/default.aspx. For further information on the Paris Principles, the Protection of Human Rights Act or the underlying methodology see Introduction to this Volume. 2. http://www.mshrc.gov.in/
MAHARASHTRA 391 (PUCL) in the High Court at Mumbai acted as a catalyst in the setting up of the State Human Rights Commission vide its order dated February 19, 1999. The Government of Maharashtra through its Resolution of the Home Department (No. HRC- 1099/378/Pol-14) dated January 15, 2000, decided to set up a State Human Rights Commission. The Government of Maharashtra vide its Notification dated May 30, 2001, also specified that in the exercise of the power conferred by Section 30 of the Protection of Human Rights Act, 19933 (hereafter referred to as PHRA, 1993 or ‘The Act’) and with the concurrence of the Chief Justice and Judges of the High Court of Judicature at Bombay, a court of session in each district of the state would be a human rights court to try the offences under the PHRA, 19934. The government promulgated the Maharashtra State Human Rights Commission Rules, 2000 and published them in the Gazette of the State Government vide Home Department notification no. HRC 1099/378/CR-49/Pol- 14 dated August 18, 20005.
Structure of the Commission According to Section 216 of the Protection of Human Rights Act, the State Human Rights Commis- sions shall consist of: • A Chairperson, who has been a Chief Justice of a High Court; • One Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of seven years of experience as District Judge; • One Member to be appointed from amongst persons having knowledge of, or practical experi- ence in, matters relating to human rights Additionally there shall be a Secretary who shall be the Chief Executive Officer of the State Com- mission. The MSHRC currently consists of S.R. Bannurmath as Chairperson, Shri B.D. More as a member and Shri Mafiul Hussain as Secretary. The position of a second member as according to the PHRA, 1993, appears to be vacant, because only one member is listed on the commission’s homepage.7 Justice Bannurmath had been the Chief Justice of Kerala from 2009-2010 and joined the MSHRC as Chairperson in September 2013.8 Justice Arvind Sawant was the first Chairperson in office from March 2001 to April 2002.9 The second Chairperson Justice Kshitij R. Vyas held the office from August 2007 to February 2012. No detailed and updated official information about the commission´s previous members, chairperson and vacancies is available. The MSHRC only publishes the following incomplete and outdated list of members on their homepage10:
MEMBERS SN Name Period (Date) 1 Justice A.D.Mane 22.03.2001 to 23.03.2006 3 Dr.Vijay Chitnis 27.03.2001 to 24.03.2006
3. http://nhrc.nic.in/documents/Publications/HRActEng.pdf 4. MSHRC Annual report 2001-02, Chapter 1, 1.6 5. MSHRC Annual report 2001-02, Chapter 1, 1.11 6. PHRA 1993, Section 21 was revised in the course of the PHRA Amendment in 2006. 7. http://www.mshrc.gov.in/ 8. http://www.mshrc.gov.in/ 9. RTI filed by Adv Wesley Menezes at the MSHRC dated June 27, 2013 10. Which substantially corresponds with the information given by the MSHRC according to RTI filed by Adv Wesley Menezes at the MSHRC dated June 27, 2013
392 SHRC: SOCIAL AUDIT REPORT–III 5 Shri. M. R. Patil 31.03.2001 to 31.03.2006 7 Shri. C. L. Thool 26.12.2002 to 25.12.2007 2 Justice V.G.Munshi 20.02.2007 to 19.02.2012 4 Shri. T. Singaravel 26.10.2006 to 25.10.2011 6 Shri SubhashLalla 22.11.2006 to 03.01.2011
However, there is a good case to believe that the MSHRC had long terms of personnel vacancies since its establishment. The Asian Centre for Human Rights, for instance, states in a report on human rights in Maharashtra in 2007 that: “Since the resignation of Chairperson Justice Arvind Sawant in April 2002 in protest against the indifferent attitude of the State Government towards the commission, the commission had been functioning without a chairperson.”11 Supposedly the commission´s first member Justice A.D. Mane functioned temporarily as acting chairperson.12 Moreover, according to the report on the celebration of the International Human Rights Day on December 10, 2012, since March 2012, until September 2013, no chairperson was appointed at all.13 Accordingly, all complaints received during the time of vacancy were pending. Long periods of vacancies contravene the Paris Principles of adequate powers of investigation. The RTI filed by HRLN enquiring about the appointment and duration of office by chairpersons was received by the MSHRC on December 31, 201314. The following table was shared by the MSHRC as part of its response.
SN Name Designation Period 1 Justice Arvind Sawant Chairperson 12/3/2001 to 12/4/2002 2 Justice K.R Vyas Chairperson 21/8/2007 to 22/2/2012 3 Justice S.R Bannurmath Chairperson 12/9/2013 till date Clearly, from the above table we can infer that between the periods April 2002- August 2007, which is nearly five years and February 2012- September 2013, there has been no chairperson in the MSHRC. According to Section 22 of the PHRA, 1993, all SHRC´s chairpersons and members shall be appointed by state representatives (among others the state´s chief minister and governor). Addition- ally the chairpersons and members are, or have been, in most cases, legislative state representatives themselves. Considering the legally designated structure and appointment mechanism of the MSHRC (similar to all SHRCs and the NHRC in India) the requirements under Paris Principles, of autonomy from the government and statutory independence, cannot be guaranteed. This is also applicable for the three administrative wings that have been allocated for administrative convenience namely - the legal wing, the administration wing and the investigation wing: Legal Wing: The legal wing, under a ‘Registrar’, is responsible for receipt and preliminary scrutiny of the complaints received. The legal wing takes care of the handling, processing, record maintenance and other relevant legal procedures regarding the cases. The procedure to be followed in handling com-
11. http://www.achrweb.org/reports/india/AR07/maharastra.htm 12. Justice A.D. Mane signed the MSHRC Annual report 2001-02 dated 15 August 2004 as Acting Chairperson. 13. http://www.mshrc.gov.in/downloads/10 percent20Dec percent202012.pdf 14. RTI filed by Ms. Salina Wilson in December 2013
MAHARASHTRA 393 plaints will be set out further below. Administration Wing: Besides being the ‘Chief Executive Officer’ of the SHRC, the Secretary also heads the administration wing of the commission. The function of this wing may be broadly classified under two heads, namely, housekeeping and personnel matters, and accounts headed respectively by a ‘Desk Officer’ and a ‘Superintendent’. Investigation Wing: This wing is headed by a person of the rank of Inspector General of Police (IGP). Section 27 of the Act provides that the state government shall make available to the commission adequate police and investigative staff under an Inspector General of Police for carrying out investiga- tion on behalf of the commission. As per Section 14 of the Act and the Procedural Regulations of the State Human Rights Commission, certain cases requiring investigation are referred to the investiga- tion wing in order to find out the veracity of the complaint. The officers of the investigation wing are required to follow the procedure laid down in Section 14 of the Act and submit a report to the commission. It can be seen that the investigation wing is mainly relying on police staff. The MSHRC Annual Report 2001-02, predicted that the largest number of complaints (around one third) was re- ceived against the police department.15 The structure of the commission´s investigation wing, in relying mainly on police staff, raises important questions regarding the commission´s independence and its operational efficiency in pursuing complaints against the police.
Jurisdiction The Maharashtra State Human Rights Commission has de jure power and responsibility to: • inquire suo motu or on a petition presented to it by a victim or any person on a victim’s behalf into a complaint of: • violation of human rights or abetment thereof; • negligence in the prevention of such violation by a public servant; • intervene in any proceeding involving any allegation of a violation of human rights pending before a court with the approval of such court; • visit under intimation to the state government, any jail or any other institution under the con- trol of the state government, where persons are detained or lodged for purposes of treatment, reformation or protection, to study the living conditions of the inmates and make recommen- dations thereof; • review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective imple- mentation; • review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; • undertake and promote research in the field of human rights; • spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, semi- nars and other available means; • encourage the efforts of non-governmental organisations and institutions working in the field of human rights;
15. Seven percent (108) were against the Jail Department, followed by the Revenue Department and the Municipal Council. Further 25 (around two percent) complaints were received against the judiciary and 51 (around four percent) against the Government of India. See: MSHRC Annual report 2001-02, Chapter 3, 3.2-3.9
394 SHRC: SOCIAL AUDIT REPORT–III • such other functions as it may consider necessary for the promotion of human rights. Given its official overall assignment in the protection and promotion of human rights it is worth looking at the definition or understanding of human rights adopted by the MSHRC. Contradictorily, the commission defines human rights as “[…] inherent in every human being by virtue of being a person”16 on the one hand, and on the other hand in referring back to the PHRA as “[…] rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”17 Several questions arise from this defini- tion: Are human rights limited to those rights guaranteed by the Indian Constitution and enforceable by courts in India or are they rights inherent in every human being? How should rights not included in the Indian Constitution be treated? The Maharashtra State Human Rights Commission announced mainly taking up the following areas of work out of its wide ranging overall responsibility for the promotion and protection of human rights: • Prisoners Rights • Investigation in cases of rape, torture and death • Systematic reforms in police custody, prisons and other centers of detention • Elimination of bonded labour and child labour • Human rights of persons affected by HIV/AIDS • Public health as a human rights issue • Rights of the vulnerable groups (women, children, minorities, SC/ST/NT/DNT, those af- fected by major disasters, disabled people)18 The MSHRC announces several activities to work in these areas of concern. Amongst others they announce the organisation or participation in conferences and workshops on human rights related is- sues, the organisation of events to spread awareness of human rights, visits in jails or the conduct of internship programs for students. Considering that the homepage announces the report on the celebra- tion of the International Human Rights Day 2012 and the internship programme 2012 as the latest “News and Events” at the beginning of the year 2014 questions the active and flourishing implementa- tion of the announced activities. Besides, one important instrument of the commission is to investigate in human rights violations suo motu or through complaints made by civilians. According to the MSHRC Rules19 the commission proceeds with received complaints in the following way: All complaints received are registered and a case number is given. After initial scrutiny a complaint is sent to a member of the commission who decides whether it is within the jurisdiction of the commission or not. If the complaint is not within the jurisdiction of the commission, as provided under the Protection of Human Rights Act, 1993, the complainant is informed accordingly. If the complaint falls within the jurisdiction of the commission, it is taken up for further inquiry. For this, in the first instance a report is called from the concerned public servant or his immediate supe- rior. If the report received explains satisfactorily, the circumstances of the case and there is no genuine
16. http://www.mshrc.gov.in/Content.aspx?ID=675 17. PHRA 1993, Preliminary, 2 (d) (http://nhrc.nic.in/documents/Publications/HRActEng.pdf) 18. http://www.mshrc.gov.in/Content.aspx?ID=675 and MSHRC Annual report 2001-02, Chapter 8, 8.4.1 and 8.4.5 19. http://www.mshrc.gov.in/Content.aspx?ID=675
MAHARASHTRA 395 complaint, the complaint is filed after informing the complainant. In some cases there would be further investigation under the guidance of the Special Inspector General of Police of the commission. Affidavit is obtained from the complainant and counter affidavit from the public servant against whom a complaint is made. Thereafter, if necessary, oral and documentary evidence would be taken. Again, if necessary, both the complainant and public servant concerned would be personally heard. After all these stages are over the commission would give a final decision. The decision of the commission after an inquiry could be any one of the following: • No further action needed as the complainant ceases to have any further complaint against pub- lic servant concerned or meanwhile satisfactory steps have been taken by the public servant; • Recommend to the concerned government or authority specific action to be taken within a specified time limit; • Recommend to the concerned government or authority immediate interim relief; • Recommend initiation of proceedings for prosecution or disciplinary action against the con- cerned public servant. • Similar to other Indian State Human Rights Commissions the following complaints are not ordinarily accepted by the commission: • Vague, anonymous, pseudonymous, illegible, trivial or frivolous complaints; • Complaints in regard to events which happened more than one year before making of the complaint; • Complaints relating to civil disputes, such as property rights and contractual obligations; • Complaints relating to service matters and labour or industrial disputes; • Allegations that are not against any public servant; • Allegations that do not make out any specific violation of human rights; • Any matter which is sub-judice before a court or a tribunal; • Any matter that is covered by a judicial verdict or a decision of the commission; • Where a copy of the complaint addressed to some other authority is received by the commis- sion; and • Any matter which is outside the purview of the commission.20 There is no information available on the specific criteria underlying the decisions about excluded complaints. It is, for instance, elusive what is meant by “trivial” or “frivolous” complaints. It is also not clear who is deciding whether a complaint is outside the purview of the commission and on what terms such decisions are made.21 The MSHRC Annual Report 2001-02 further states: “All petitions or complaints […] are distrib- uted amongst the members by following a sequential method. A final decision on the complaint is taken by a member, deciding singly or jointly with another (or more) member(s).”22 Again no comment is given on the exact criteria underlying the decision process.
20. MSHRC can inquire into human rights violations only in respect of matters relatable to any of the entries enumerated in List II (State list) and List III (Concurrent list) in the seventh schedule of the Constitution (MSHRC Annual report 2001-02, Chapter 4, 4.2) 21. Some of the reports given by persons during the Independent People´s Tribunal account, for instance, the MSHRC´s dismissal of complaints on the right to education. 22. MSHR Annual Report 2001-02, Chapter 4, 4.3
396 SHRC: SOCIAL AUDIT REPORT–III As laid down in Section 39 of the Protection of Human Rights Act, 1993, every member of the commission and every officer appointed or authorised by the commission to exercise functions under this Act shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (45 of 1860). In order to enable the commission to enquire into human rights violations in an effective manner, the commission has been given certain legal powers as mentioned in Section 13 of the Act, in respect of the following matters: • Summoning and enforcing the attendance of witnesses and examining them on oath; • Discovery and production of any document • Receiving evidence by affidavits • Requisitioning any public record or copy thereof from any court or office; • Issuing commissions for the examination of witnesses or documents; • Any other matter, which may be prescribed.
Accessibility Any victim alleging a human rights violation or any other person on the victim’s behalf can make a complaint to the MSHRC in person, by post or by fax. The commission is located at 9, Hajarimal Somani Marg, about 200 metres from Chhatrapati Shivaji Terminus (formerly the Victoria Terminus). The complaint may be written in Marathi, Hindi, English or Gujarati and is free of charge. The commission assures everyone a patient hearing.23 Complaints can be made by post or by fax, but the person who makes a complaint is expected to visit the commission as the case may be in the ongoing procedure. Although the commission´s office can be reached easily via public transport for those living in the Mumbai area, financial considerations may prevent persons from travelling to Mumbai if they reside in other regions of the state. The commission received 1,45424 complaints within the first year (2001-02). The largest number of complaints in 2001-02 were received from the Konkan Division (782) followed by the divisions of Pune (222), Nashik (143), Aurangabad (116), Amravati (100), Nagpur (91).25 More than one-third of the complaints (520) were received from Greater Mumbai and Navi Mumbai, followed by the Thane District (239) and Pune District (142). These three together make up almost two-thirds of all cases out of all 35 Maharashtra districts. The geographical distribution of complain- ants may be the result of the close proximity to the MSHRC office in Mumbai and possibly reflects the limited accessibility of the MSHRC to persons living outside the Mumbai area.26 The official homepage provides announcements and information on the Maharashtra State Human Rights Commission and its ongoing activities. Unfortunately the homepage is not up to date and is de facto only available in English language. Although the homepage contains a button to switch to Marathi language the actual content is only available in English, the consequence being that the access is limited to persons who are able to understand English. Incidentally, the information is hardly accessible by persons who have no internet access or are illiterate. Given the fact that state human rights commissions should spread knowledge about human rights
23. http://www.mshrc.gov.in/Content.aspx?ID=675 24. There are two slightly different numbers of complaints (1454 and 1458) mentioned in the MSHRC Annual report 2001-02 25. MSHRC Annual Report 2001-02, Chapter 5, 5.2 26. Other factors might be considered additionally due to the fact that Raigad district, for instance, is similarly close to the MSHRC office but only 13 complaints were received thereof. See MSHRC Annual report 2001-02, Chapter 5, 5.2 and Annexure 5
MAHARASHTRA 397 and promote human rights mainly among the most disadvantaged people it is questionable that the large majority of complaints are made by the urban population close to Mumbai and the fact that the homepage is only available in English, which is certainly not the language broadly spoken by the rural and less educated population in Maharashtra.
Operational Efficiency The MSHRC received its first complaint on March 30, 2001, little more than two weeks after the commission´s establishment. Although state human rights commissions are duty bound to furnish annual reports (and special reports), the MSHRC published no single report on their homepage. The only indirectly available annual report is of 2001-02. The report was sent after an RTI request by an advocate, the response to which was later accessed by HRLN’s team.27According to the report, a total of 1,454 complaints were received - 542 cases were processed during the same year and 538 complaints out of them were eventually disposed, because they were considered not within the jurisdiction of the commission.28 In other words not more than four cases were further proceeded by the MSHRC which is less than one percent of the decided cases and hardly more than 0.3 percent of the received complaints. Despite the fact that according to the MSHRC´s Progress Report of 201329 the relation between received complaints and disposed cases for the following years is not quite as poor as it was in the first year, the overall rate still remains concerning. According to the Progress Report of the MSHRC up to 2012-13,30 more than 80 percent of the received complaints were disposed.31 Moreover the reports given by persons during the Independent People´s Tribunal on the func- tioning of the Maharashtra SHRC, as elaborated in detail in the last section of the current report, indicate that the above stated procedure does not always work out in practice since, for instance, not all complainants were informed if and why their complaint was not considered within the commission´s jurisdiction.
Progress Report of the MSHRC up to 2012-13
Year Earlier Fresh Total Dis- Disposed after Total dis- Pending pendency received cases in missed in report/ hearing posed of cases at a given limine in a given the end year year of a year 2001-02 Nil 1454 1454 419 119 538 916 2002-03 916 2153 3069 1548 97 1645 1424 2003-04 1424 2226 3650 895 791 (includes 1686 1964 236 reliefs)
27. RTI filed by Adv Wesley Menezes at the MSHRC dated 27/06/2013 28. MSHRC Annual report 2001-02, Chapter 5, 5.11 29. http://www.mshrc.gov.in/WebFiles/Progress percent20Report percent20of percent20MSHRC percent20April. pdf 30. RTI filed by Adv Wesley Menezes at the MSHRC dated 27/06/2013 31. Pendency up to 31st March 2013 was 10627 and pendency up to 27thJune 2013 is 10627+ 746 = 11373 according to the RTI filed by Adv Wesley Menezes at the MSHRC dated 27/06/2013
398 SHRC: SOCIAL AUDIT REPORT–III 2004-05 1964 3384 5348 1803 1161 (includes 2964 2384 325 reliefs) 2005-06 2384 5585 7969 2466 1538 (includes 4004 3965 387 reliefs) 2006-07 3965 5618 9583 3942 693 (includes 4635 4948 11 reliefs) 2007-08 4948 6473 11421 3522 2452 (includes 5974 5447 197 reliefs) 2008-09 5447 7208 12655 5161 3402 (includes 8563 4092 356 reliefs) 2009-10 4092 6034 10126 4498 2726 (includes 7224 2902 347 reliefs) 2010-11 2902 5634 8536 3966 1526 (includes 5492 3044 114 reliefs ) 2011-12 3044 5610 8654 3182 525 (includes 3707 4947 38 reliefs) 2012-13 4947 5680 10627 Nil Nil Nil 10627 Total 57059 ------31402 15030 (include 46432 ------2011 reliefs)
PATTERNS OF HUMAN RIGHTS VIOLATIONS IN MAHARASHTRA
aharashtra is located on the Indian west coast along the Arabian Sea and further encircled by the States of Gujarat and Madhya Pradesh in the North, Chhattisgarh in the East and Andhra Pradesh, Karnataka and Goa in the South. After Uttar Pradesh it is the second M 32 2 largest state by population (112 million inhabitants ) and the third largest by area (307,713 m ). Ma- harashtra also has the country’s second largest urban population.33 Maharashtra is divided into six tax divisions, which are divided in 35 districts.34 The state capital Mumbai is the largest Indian city and at times considered India´s financial capital. Maharashtra has also been an important historical setting. Bombay was the second of three “Presi- dency towns” established in the second half of the seventeenth century as the East India Company´s headquarter. From the mid-18th century onwards the western regions of the current state of Maharash- tra formed part of the Bombay Presidency in British India. In the states reorganisation after India´s
32. According to the Census 2011: http://censusindia.gov.in/2011census/censusinfodashboard/index.html 33. Human Development Report Maharashtra 2002: p. 2 34. https://www.maharashtra.gov.in/1128/Districts
MAHARASHTRA 399 independence the current mainly Marathi-speaking state of Maharashtra was founded in 196035. Since the thirteenth state assembly election in 2009 Maharashtra is ruled by a Congress-Nationalist Congress Party coalition. With a gross state domestic product above Rs 1.2 Crore in 2011 Maharashtra is the wealthiest state in India.36 By way of comparison to the national average of 74 percent the literacy rate in Maharashtra is high at above 82 percent. The state’s life expectancy is also above average. Maternal Mortality Ratio (MMR) and Infant Mortality Rate (IMR) are comparatively low.37 The Human Development Index (HDI) in Maharashtra is above national average mainly due to the above mentioned rates.38 However, other development indicators draw a conflicting picture. The sex ratio in Maharashtra (929 female for each 1000 male), for instance, is less than the national average (940).39 Moreover, Maharashtra has the second highest HIV prevalence rate in India after Andhra Pradesh40 and the persistence of poverty, malnutrition, uneven development and spread of social and economic gains constitute constraints in Maharashtra’s development trajectory.
Human Rights Violations by Security Forces
The Maharashtra State Human Rights Commission states that the largest number of complaints are received against the police department. Likewise other institutions, like the Asian Centre for Human Rights (ACHR) record gross human rights violations by Maharashtra’s security forces including custo- dial deaths and extra-judicial executions.41 According to the Indian National Crime Records Bureau (NCRB) Maharashtra tops the list of total custodial deaths in the country. According to the statistics available from 2000 to 2011, 297 cases were reported from Maharashtra itself.42The Supreme Court has repeatedly reiterated that a “custodial death is a graver crime than, perhaps, a case of murder.” Unfortunately, only 41 FIRs and a sum total of 19 chargesheets have been filed while judicial inquiry has only been initiated in four such cases. Inde- pendent estimates by organisations such as Human Rights Watch indicate, moreover, that the estimated number is likely to be much higher than the NCRB data suggests. Furthermore, instances of custodial torture not resulting in death are usually not recorded. Thus, no accurate data is available for the total number of victims of custodial torture though the number is obviously much higher.43 A report by the Time Magazine indicates that more than 1,200 extra-judicial killings had happened in Maharashtra from 1992 till early 2003.44For more recent data an independent estimate by the ACHR
35. The claim to some of the Marathi speaking areas of Karnataka (i.e. Belgaum) by Maharashtra is still pending. http://www.thehindu.com/news/national/other-states/belgaum-border-issue-to-figure-in-play/article4317061.ece 36. http://unidow.com/india percent20home percent20eng/statewise_gdp.html 37. According to the Sample Registration System of 2011, 130 women in Maharashtra aged 15-49 years die due to maternal causes per 1,00,000 live births (Indian national MMR is 212) and 31 infants under one year die per 1000 live births (Indian national IMR is 50) (http://www.censusindia.gov.in/vital_statistics/SRS_Bulletins/ MMR_release_070711.pdf) 38. http://www.undp.org/content/dam/india/docs/maharashtra_factsheet.pdf 39. http://www.census2011.co.in/literacy.php 40. http://www.worldbank.org/en/news/feature/2012/07/10/hiv-aids-india 41. http://www.achrweb.org/reports/india/AR07/maharastra.htm 42. Crime in India. New Delhi: National Crime Records Bureau, 2012. Accessed November 6, 2013. http:// ncrb.nic.in/. 43. http://www.achrweb.org/reports/india/AR07/maharastra.htm 44. Perry, Alex. “Urban Cowboys.” Time Magazine, January 6, 2003.
400 SHRC: SOCIAL AUDIT REPORT–III indicates, for instance, that at least 36 naxalites have been killed in extra-judicial killings during the 2006 naxal protests in Maharashtra, in addition to the large number of civilians killed by indiscriminate firing during the protests. Mumbai has been synonymous with extra-judicial killings following the 1990s. In an ongoing case the Supreme Court is adjudicating a plea regarding 99 such extra-judicial killings that occurred between 1995 and 1997.45
Farmers Suicide
Maharashtra currently accounts for one-fifth of farmer suicides in the country. In fact, it has witnessed 54,000 farmer suicides since 1995. Until 2003 the number of farmers committing suicide in Maharash- tra was comparatively low (only 170 farmers committed suicide in Maharashtra in 2003).46 However, since 2004 the number is increasing tremendously every year.47 The National Crime Records Bureau (NCRB) data for Maharashtra in 2012 shows that at least 3,786 farmer suicides occurred that year which is almost 450 more than the state saw in 2011.48It is significant to note that suicide cases are on the rise even though the farming population is shrinking all over the country and more so in Maharash- tra where migration to cities occurs most frequently and rapidly.49 The worst affected category of farmers are the cotton farmers from the Vidarbha region comprising the six districts of Amaravati, Akola, Washim, Buldhana, Yavatmal, and Wardha. In fact, of the three million farmers in the western part of Vidarbha, more than 75 percent live in conditions of extreme distress.50 One reasons for the sharp increase of farmers committing suicide in Maharashtra, especially in the cotton predominated area of Vidarbha, is presumed to be the large imbalance between expenditures and yields that led to a decline in profit incomes to levels, which were significantly negative. While the yield of cotton in Maharashtra was much lower than that in other Indian states, the costs of cultivation registered an increase of 45.2 percent in the period 2000-01 to 2002-03 for example, which surpassed those of all other states in India.51 In 2006 the State government acknowledged this issue and announced Rs. 3,750 Crore relief pack- age for farmers living in the six worst affected districts mentioned above. The relief package promised to waive off farmers’ entire overdue interest and make farmers immediately eligible for new loans.52 Following this relief package, another Rs16,978 Crore rehabilitation package was announced by the central government to help farmers in 31 districts of four Indian states - Maharashtra (6 districts), Andhra Pradesh (16 districts), Karnataka (6 districts) and Kerala (3 districts). The intended relief pack- age for Maharashtra under this rehabilitation scheme was Rs.3,873 Crore.
45. Anand, Utkarsh. “Extra-judicial killings.” Indian Express, November 24, 2012. 46. Mitra, Siddharta and Sangeeta Shroff 2007: “Farmers’ Suicides in Maharashtra”Economic and Political Weekly 42 (49): p. 73-77. 47. Sainath, P. “Farm suicide trends in 2012 remain dismal.” The Hindu, June 29, 2013. 48. Alok Deshpande, http://www.thehindu.com/news/national/other-states/maharashtra-government-admits-to- rising-farm-suicides/article4963344.ece 49. P. Sainath, “Farm suicides rise in Maharashtra, State still leads the list” http://www.thehindu.com/opinion/ columns/sainath/farm-suicides-rise-in-maharashtra-state-still-leads-the-list/article3595351.ece 50. Supra note 1 51. Mitra, Siddharta and Sangeeta Shroff 2007: “Farmers’ Suicides in Maharashtra”Economic and Political Weekly42 (49): p. 76f. 52. http://www.achrweb.org/reports/india/AR07/maharastra.htm
MAHARASHTRA 401 Despite the announcement of relief packages the tall promises of both the central government and the state government were never properly implemented. Of the total Rs.3,750 Crore package an- nounced by the Prime Minister, only around Rs.17 Crore had reached the farmers as on 6 December 2006. Despite the government’s intervention, the number of farmers’ suicides in Maharashtra has con- tinued to increase in recent years.53
Malnutrition
While India has achieved some success in income poverty reduction, it has been less successful in reduc- ing malnutrition. About half of the population, particularly children and women - the most vulnerable groups - suffer from various forms of malnutrition and a quarter of them suffer from severe malnutri- tion. According to an article published in 2004, middle-income states such as Kerala and Tamil Nadu performed actually better than some wealthier states like Maharashtra.54 The widely-cited data available on the malnutrition situation in Maharashtra is the third Indian National Family and Health Survey of 2005-06 (NFHS-3). A Malnutrition Monitoring Committee was established for Maharashtra that came out with a report of the years 2007 to 2012. Additionally, a Pune based NGO called Support for Advocacy and Training to Health Initiatives (SATHI) published a report on nutritional crisis in Maharashtra in 2009. However, both the reports substantially rely on the outdated NFHS-3 Report. According to the SATHI report almost half of Maharashtra’s children are undernourished and 45,000 children die of malnutrition every year. Furthermore one-third of adults are underweight, and 15 percent severely underweight. Against widely held opinions, malnutrition is not limited to remote tribal or rural areas in Maharashtra. Instead, there are millions of undernourished people living and working in Maharashtra’s urban centers.55 Nonetheless tribal areas have been much worse hit than those in urban areas. As a consequence, the state government was forced to acknowledge the problem of malnutrition amongst tribal children in 2004 when it accepted the estimate that 9,000 tribal children were dying as a consequence of malnutrition. In fact, Ananda Pawar, a renowned activist for tribal rights claims that the IMR in districts dominated by tribals is as high as 68 per 1,000.56 What is appalling is that the State only spends 0.8 percent of its GDP on the mid-day meal scheme and Integrated Child Development Scheme (ICDS). These schemes are currently the two major gov- ernmental programs in Maharashtra to prevent deaths caused by malnutrition. Yet, they are criticised, for instance, because severe malnutrition is often underreported in the ICDS and only 12 percent of schools surveyed provided mid-day meals and none of the meals provided the stipulated calorific re- quirement. This may be attributed to the poor implementation and severely limited budget allocation of these schemes.57
53. Ibid 54. Radhakrishna, R. and C. Ravi Source 2004:“Malnutrition in India: Trends and Determinants.”Economic and Political Weekly39 (7): p. 671-676. 55. http://www.thehindu.com/news/national/maharashtra-faces-growing-urban-malnutrition/article3342953.ece 56. Gunasekaran, S. Determinants of Infant and Child Mortality in Rural India. Delhi: Kalpaz Publications, 2008. 57. http://infochangeindia.org/children/news-scan/45000-children-die-of-malnutrition-every-year-in-maharashtra. html
402 SHRC: SOCIAL AUDIT REPORT–III Crime against Dalits and Adivasis
Certain areas of Maharashtra have been rife with unrest and caste tensions. In 2006, a dalit woman and her three children were brutally tortured and eventually killed for testifying against certain upper caste persons in a case involving the murder of four members of a dalit family by upper caste persons belonging to Powar and Kalar communities. This caused a series of violent protests in its wake that were violently suppressed by the govern- ment. Of the 31 dalits who were arrested for participating in democratic protests, most were arrested without warrants and a number of people complained of custodial torture. However, the repression of this wave of protests triggered an even bigger series of outcry in the following few months in the course of which several trains and buses were burnt. Asha Chimedia, a former teacher in Hindi School Ramnagar, Dombivali, Thane district, is a victim of caste abuse and sexual harassment. She has filed two cases in a local court in Kalyan, Thane district, against each offence. However, all her hard work has been lost on the unheeding state machinery.58 The current atmosphere of inter-caste tension in districts like Nashik and Bhandara, however can- not be overlooked and should be an immediate cause for concern. The state government had even announced its intent to arm the dalits so as to enable them to defend themselves against atrocities that have been routinely committed by upper-caste people in the past.59
Situation of Muslims in Maharashtra
A committee of social scientists headed by the retired civil servant Mehmoodur Rehman was set up five years ago to study the educational, social and economic situation of Muslims in Maharashtra. The committee published a report with their research findings in October 2013. According to the report, almost 60 percent of Muslims live below poverty line (BPL) in Maharashtra and further 25 percent only slightly above poverty line.60 While 70 percent of the Muslims live in urban areas and face problems with housings, the remaining 30 percent who live in rural areas are said to have insufficient access to governmental poverty alleviation programs. Regarding educational issues only 2.2 percent of the total Muslims complete their education (the number for women is even less with 1.4 percent). The committee expresses further concern as related to gender equality. The work participation rate for Muslim women in Maharashtra, for instance, is only 12 percent, whereas the total work participation rate for Muslims in Maharashtra is 32.4 percent. The report also expressed concern over police harassment and the large number of cases registered against Muslims. The jail occupancy statistics for Muslims, for example, range high between 32-35 percent as compared to the total populace jail occupancy statistics in Maharashtra of 10.6 percent.61
58. RahiGaikwad, “SC teachers face caste abuse in Mumbai” http://www.thehindu.com/todays-paper/tp-national/ sc-teachers-face-caste-abuse-in-mumbai/article1351826.ece 59. Supra note 1 60. http://www.newindianexpress.com/nation/60-per-cent-of-Maharashtras-Muslims-below-poverty-line- Panel/2013/10/22/article1849760.ece 61. Ibid.
MAHARASHTRA 403 Crimes Against Women
A large volume of legislation has been introduced to create a category of crimes labeled ‘crimes against women’. This category of legislation includes crimes under the Indian Penal Code (IPC) as well as the special and local laws that include legislation such as the Immoral Traffic (Prevention) and the Dowry Act. The most recent statistical survey was conducted by the NCRB in the year 2012 and based on the government’s projected mid-year female population in 2012. However, independent estimates indicate that ‘crimes against women’ are grossly unreported, making the NCRB data somewhat suspect. According to statistics compiled by the State Crime Records Bureau of the Criminal Investigation Department, in 2011, Mumbai got the dubious distinction of having the highest number of rape cases (221) in Maharashtra. Also reported in the city were 553 molestation cases, 162 sexual harassment cases and 191 cases under the Immoral Traffic Prevention Act. Although there was a decrease in the overall crime rate throughout the State in 2011, crimes against women like kidnapping, dowry deaths, rape, molestation, and attempts to commit murder for dowry are rising. A 27 year old woman was molested in full public view by her friend in July, 2012, when she re- fused to continue her relationship with him after she came to know that he was cheating on her. She approached the deputy police commissioner of that zone, requesting him to register her complaint in another police station as she feared that a police complaint in her area would disgrace her family and relatives. Despite repeated pleas, the official did not file a case but instead intimidated the victim. Even the Maharashtra State Commission for Women, which examines all matters concerning the safety of women, has been non-functional as the state government has not appointed the chairperson and the required six members since 2009.62
Crimes Against Children
Maharashtra has the third highest incidence of child rape closely behind Uttar Pradesh with 917 report- ed cases in 2012. Maharashtra also reported the highest number of abandonment cases at 199 out of a national wide total of 821 in 2012.63 In Maharashtra, Mumbai continues to be the most unsafe city for children. In 2012, 141 cases of rape of minors were reported in the city, the highest in the state, accord- ing to the statistics compiled by the Maharashtra Police. Of the 917 cases of rape of minors across the state, Mumbai alone accounted for 15.4 percent. Mumbai also witnessed the highest number of minors being murdered. Of the total 212 cases in the state, nine cities accounted for 53, with 18 cases being reported from Mumbai in 2012. Of the total 893 kidnapping and abduction, 142 minors were from the city. Recently in 2012, a seven-year-old school girl was molested by her 21-year old neighbour, an engineering student from a well-to-do family. A week earlier, a nine-year old school girl was raped at Dombivali by her 24-year old neighbour. A four-year-old was sexually assaulted by a 45-year-old auto- rickshaw driver who used to ferry the child to school, days apart from these incidents.64 Maharashtra’s rate of violent crimes against children far exceeds the national average and is esti- mated to be 9.5 percent of the total crimes of this category recorded in the country.
62. Vinaya Deshpande, “Mumbai not far behind Delhi — in crimes against women” http://www.thehindu. com/news/national/other-states/mumbai-not-far-behind-delhi-in-crimes-against-women/article4218672.ece, MUMBAI, July 28, 2013 63. Ibid 64. Ibid
404 SHRC: SOCIAL AUDIT REPORT–III
Chapter-II Testimonies
406 SHRC: SOCIAL AUDIT REPORT–III Murder of a Dalit Girl and Police Inaction Amravati District Sidharth Bhosale deposing the case
Late Asmita Ukey
y 17 year old daughter, Asmita Ukey, went for her English exam and re- turned together with a classmate on October 18, 2005 at 12:30pm. They Mgot off the bus and walked alone along the railway tracks towards our village. It takes only about twenty minutes from the bus stop to our village. At about 1:15 pm, she was found dead. A complaint regarding the brutal murder of my daughter was sent by the com- plainant, Siddhart Bhojare. The Investigation Officer (IO) of this sudden and unnatu- ral death, had submitted his report to the S.D.M. Chandur Railway Police Station on January 11, 2007, for approval and it is pending with the latter. A report was called for from I.G. of Amravati Region and he submitted a report dated May 8, 2007. In this case, there was no eyewitness. The Post-Mortem Report stated that it was a death by a railway accident. There is no evidence of rape in the Port-Mortem Report. Further, the clothes of the suspect were seized by the police and sent for Chemical Analyser’s Report and it did not disclose any seminal stains. The police tried to change the Forensic Lab Reports by offering Rs 40,000 as bribe to Dr. P.G. Dixit, but Dr. Dixit claimed that he rejected the bribe and submitted the report as it was. The clothes of the suspect were seized improperly. The Panchanama was unreli- able because the alleged Panchas had not signed on the written Panchanama but on plain paper. A complaint was filed with the Maharashtra State Human Rights Commission under Case No. 493/2006-07/10229 to which they replied on October 12, 2007. The complainant Mr. Bhojare, received a letter vide no. PMD/1976-77/06 dated De- cember 12, 2006, from the Department of Forensic Medicine, Government Medical College, Nagpur, the undersigning authority being Dr. P.G Dixit. It was addressed to the Police Inspector, Chandur Railway Police Station, Amravati District and PSI Choudhary received it on December 21, 2006. The report stated the following: “1) This is definitely not a case of accident caused by running railway train be- cause with the exception of a forehead injury, there are no injuries like abrasion contu- sions and crash injuries on other parts of body, which is usually found in death due to railway accident. Moreover, the clothes were not torn, nor were there oil stains on the clothes of the victim. This also does not appear to be a case of suicide. 2) The only possibility remains is of homicide. In this case, there was one stole
MAHARASHTRA 407 ligature around the neck with three fixed knots. Except for one lacerated wound on forehead with crushing of bone underneath, there were no injuries in other parts of the body. Also a carry bag with contents and one sandal were seen at the distance of 33 ft from the railway track. So the following theories can be considered- a) She was strangled to death and then the body was thrown in the drain water from the bridge due to which there is a lacerated wound on the forehead, or b) She was assaulted by a hard and blunt object like handle of sickle and the body was dragged in the drain water. So the petition was sent to the SHRC to investigate the matter from the above angle.” The MSHRC stated that the IG of Amravati would conduct further enquiries into the case and submit a report within two weeks. To date there has been no further in- formation from the police or follow-up from the MSHRC. The case remains pending and I am still awaiting justice for my daughter.
Police Inaction Pune District Written submission to the Jury
Shyam Gajaria Kale
y wife and I went to the Indapur police station on July 5, 2011, to com- plain about being abused by my brother and his family- Revnath Gajaria MKale, Sagar Revnath Kale, Shekhar Revnath Kale and his wife, Vishali Revnath Kale. The police refused to take our complaint. Because we went to com- plaint to the police, my brother’s family began torturing and abusing us even more. They hit me and my wife with lathis and knives. We were injured as a result of this assault. They also shot at my right leg. Then they hit me on my head so hard, that I am gradually losing vision now. We have an ongoing case registered at the Indapur court against my brother for some time. In connection with this dispute, over the past four or five years, my broth- er and his family, threatened to assault me and my family. We filed a complaint with the MSHRC but they are yet to respond to it.
408 SHRC: SOCIAL AUDIT REPORT–III Denial of Right to Education Nasik District
Devilal Shriram Wankhade
belong to the Scheduled Caste and therefore do not have to pay school fees for my children, as per the government regulation rule of the 1960s. I have three I children who are studying in 1st, 2nd and 4th grades respectively. I have visited the school multiple times to explain to the concerned authorities about the exemption of school fee by the virtue of belonging to the SC. I have also filled the application form that the social welfare department (SWD) has asked us to fill to apply for school fee exemption. I showed the school this form, but they did not accept this form. I then complained to the SWD at Nasik. The officials at the department told me they would ask the school why my application was not allowed and get back to me with a response after some time. I went to the SWD five to seven times to follow-up this matter. In the meantime, the school did not allow my children to write their exams because I was unable to pay the fees. After the exam, I went to the SWD again. They replied to me in so many words as follows: “You should not have put your children in an expensive private convent school without any grants from the government. You should have put them in a public government school”. The SWD officer very rudely asked me to put my children in a Marathi medium government school. I then came to the SWD in Mumbai and spoke to the head of the SWD and sent another application to the SWD Mumbai for exemption from the fees, on November 22, 2007. We were still not given an exemption. The SWD Mumbai has given no response to my application till date. I used to work as a labourer at a construction site. Now that the construction work has finished, I have no income. But I still want to figure out a way to ensure my children continue their schooling and receive good education. On December 12, 2007, I filed a petition with the MSHRC to take up the case. On February 11, 2008, the MSHRC notified me to appear for the hearing of the case. The case was heard on March 5, 2008, (MSHRC Case No. 4880/2007-08). The MSHRC Order, following the hearing, stated that the SWD has promised to solve the issue by March 31, 2008, and as such, the case was closed by the MSHRC. To date, the SWD has done nothing to take action on the matter or followed up.
MAHARASHTRA 409 Caste Based Discrimination Dombivali, Thane District
Asha Shyam Chimedia
or 20 years I have been a teacher at Hindi School Ramnagar, Dombivali East. I taught Mathematics and Science there. During my entire tenure there, the Fmanagement used abusive language regarding my SC caste. They very fre- quently made derogatory remarks and used caste based abuses to intimidate me. When it became too much, I filed a complaint with the police in the year 2005 and only on March 24, 2006, was the FIR registered against the school principal and two teachers. The police took no action for one year. The principal and teachers got anticipatory bail within two days and were never arrested. A second FIR was regis- tered on September 13, 2007, because the abuse continued at the school and even got worse after the first FIR, as they began physically assaulting me and sexually harassed me too. Under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, this constituted a violation. The principal was arrested on January 10, 2008, along with two teachers. These three people have been the primary people involved The principal is Chandrajith Singh and the teachers were Mahendra Ramesh Shukla and Sanjeevani Kamlesh Singh. They were in custody for 36 hours before being released on bail. Trial proceedings are ongo- ing for both cases in the sessions court. After the first FIR, the abuse worsened. I was required to report to school for both duty shifts, though normally the teachers are required for only one shift. I was kept after work by the principal and verbally abused. I was not given my payment and was often marked absent even when I was present at work. From 2006-2008, I did not receive any payment. I was suspended on April 30, 2008, on the false allegation that my caste certificate was fake. I was dismissed through a letter and without a proper inquiry, which is illegal. The court has even acknowledged the validity of the caste certificate and still I have not been allowed to return to work. Both the court cases, based on the FIR re- main pending and continue to get postponed and delayed. I have not been working since April 30, 2008, the day I got dismissed. I have been given two letters from the Education Department of Kalyan-Dombivli on September 24, 2009, and December 20, 2010, respectively, stating that I have been illegally sus- pended and that I should be reinstated. These letters were then sent to the principal but have been ignored. I went for the duty anyway with the 2nd letter and along with two officers of the education department. The principal used foul language and abused
410 SHRC: SOCIAL AUDIT REPORT–III me with a vulgar threat. The two officers were witness to this. I went to the police station to report this incident, but they took no action. A third letter was issued from the education department following this incident, but still no action has been taken and the principal has not allowed me to return. On April 25, 2008, the Women and Child Welfare Committee at the Maharashtra Mantralaya sent a letter to the education department asking for an inquiry since I had been sexually harassed. No inquiry has been made to date. The education department has the authority to revoke the registration of the school, but since the principal is a big shot, they have done nothing. The Teachers Union for SC/ST Minority Case Teachers, Bahujan Shiksha Karamchari Sansar, filed a complaint with the MSHRC on my behalf on April 28, 2008, under Case No. 1223/2007-08. I filed a second petition with the MSHRC on May 5, 2008. Both of these petitions have been ignored by the MSHRC and I have not received a response from them as yet.
False Case of Rape Satara District Written submission to the Jury
Chillar British Pawar
y son, Chillar British Pawar, 45 years, who resides with me, has been falsely accused of rape and murder of a girl, Kala (name changed), 9 years, who Mis the granddaughter of Pitambar Chilbil Shinde. He claimed that my son raped her and threw her into a well. He complained to the Satara Police Station and filed a complaint against my son. He also booked my son-in-law, Shankar Diao Bosle, and my nephew, Sony Diao Bhosle in the police complaint. All three have been ar- rested by the police, based on this complaint. The girl in question was not Chilbil Shinde’s biological granddaughter- he brought her from Pune and has no connection to her. Shinde has told the leaders of the community that he shall withdraw the case only if we pay up Rs 5 lakh to him. I filed a petition at the MSHRC on June 4, 2012. To date, there has been no response from the MSHRC and the case is still pending.
MAHARASHTRA 411 Extra-judicial Killing Ahmednagar District Victim’s father deposing the case
Late Mangesh
n January 22, 2011, the Tambulvadi Police Station arrested my son. On January 26, 2011, the Usmanabad Local Crime Branch (LCB) branch of ONaldurga Police Station took custody of my son and accused him of a crimi- nal act that took place in their jurisdiction, the previous night. The police began an investigation against my son and he was locked up in the Naldurga Police Station. My son, Mangesh’s mother-in-law went to see him in prison. He told her that the police officers had severely abused him by hitting and kicking him and using electric shock on him. He said he could not walk as a result of the torture. He pleaded to her to ensure he got out of there as soon as possible, otherwise the police would make sure he died. On January 27, 2011, at 4 pm, Mangesh’s wife called my son-in-law and in- formed him that Mangesh was dead. My other son Pintya went to the police station and the police showed him a body and asked him if it was his brother. It was his body only and the police asked him to take the body away. He saw that the body had been electrocuted- his genitals and thumbs had black and blue marks. He also saw that his ears were covered with his hands and his sleeve was fastened around his neck. My son Pintya said that he was not taking the dead body back. The police inspector at this police station, Jagannath Kalaskar, forced him to take the body away. The police of- ficer assured that if he took the dead body, the police officer would take responsibility for taking care of the deceased’s wife and children. My son Pintya still did not take the body and instead, left for our village. Later, a political party official informed me that the body was in Aurangabad and asked me to pick up the body in Aurangabad. After I went there, the police showed me the body and forced me to put my thumb print on three different blank sheets of paper. They threatened me to keep silent about the murder, otherwise they would harm my other son. While I went to Aurangabad, there was no one in my house. The next day, while I was still away, the police brought the dead body back. When it came, around 50 police personnel brought it back. To dispose of the body, they brought a dhoti and two sacks of salt to my sister-in- law, Shalini Bhosle, who was the only one at home that time. The police took the body to the farm. They got a thresher machine, and dug up the land, put the salt over the hole that we dug and put the cloth on top of the salt and threw the body in the hole. They buried the body and because my sister-in-law insisted them to wait until the rest
412 SHRC: SOCIAL AUDIT REPORT–III of the family arrives, they put a gun to her head and finished burying the body. They put heavy rocks on top of it. We were then told by the police that my son committed suicide by hanging him- self in the toilet. If he did indeed commit suicide, they should have let us see the body and not taken it to Aurangabad for post-mortem. We filed a petition in the MSHRC asking for an inquiry, but there has been no response from them as yet.
Denial of Land Rights Amravati District
Deepak Chokhabaji Gajabiye
reside at Chandu Railway Station since birth. I belong to the “backward caste”. I received a plot of land from Ramesh Kushalrao Patil and Santosh Rao Kushalrao I Patil in 1986. Since 1987, I have been living on that land and for security pur- poses I have built a stream compound next to the railway compound. The municipal corporation took some of my land to build a road. I filed a complaint in 1999 against Ramesh and two others in Amravati District Court. Now the municipal corporation is trying to grab my land. I bought this plot and there is no interference with govern- ment land or railway land. There is no legal dispute about this land either. The municipal corporation knows that this is my land and that I belong to a back- ward caste. To encroach my land, they are building drainage through my land. With the help of the police, people from the municipal corporation forcefully entered my land, destroyed my compound and started digging in my land. This is a violation of my property rights. I am being harassed because I belong to a lower caste. The municipal corporation is conniving with the upper castes and politi- cally influential parties. As a result, my life and property are at risk. I filed a petition at the MSHRC on July 11, 2009, and there has been no response from them yet.
MAHARASHTRA 413 Religious Discrimination Baramathi, Pune District Written submission to the Jury
Baby Dattatrey Ahiwade and her Husband Hassan Chamshugdin Zare
got into an inter-caste marriage and my husband, Hassan Chamshugdin Zare, was Muslim but he converted to Christianity after marriage. One Nandakumar I Sabade was ill and my husband gave him a loan for his medical bills. When he asked the latter for his money back, he assaulted him and filed a false case of rape against my husband. But after the medical examination of my husband, it was proved that he was innocent. There were a number of false cases against my husband and it came in the media, because of which we were defamed. We went to register a com- plaint at the Baramathi Police Station, but they refused to take our complaint. We filed a complaint with the MSHRC on June 12, 2010. In response to the MSHRC order at that time, requesting the parties to find a mediated solution to the dispute, the police called Nandakumar and got a statement from him assuring that he would not defame my husband anymore. On November 16, 2010, the settlement happened. On January 16, 2011, some associates of Nandakumar came to our house and abused me verbally. I again went to the Baramati police station to register a complaint. Then on January 18, 2011, they came to my house again, hit me and my son, broke the television and threw around many appliances. We live in constant fear and insecu- rity and despite all this, the police has not done anything. Hence we filed a second complaint with the MSHRC on January 26, 2011. To date, no action has been taken and there was no response to the second complaint that we filed.
414 SHRC: SOCIAL AUDIT REPORT–III False Case and Harassment Amravati District Anand deposing the case
Pravarja Mahajan
am the chairperson of a fact-finding committee set up to discuss the problems of the village of Tapalpura in Paratwada. There are many problems in this vil- I lage. The people living in this village of Tapalpura met with the Nagar Parishad to discuss their grievances regarding lack of facilities, on September 24, 2011. The committee noted to the MC that the socio-economic situation was very bad. There are no public toilets. There are no mechanisms in place for keeping the drinking water clean. Basic facilities like electricity are not available. The villagers have not been given permanent housing or any ownership title deed to prove that their present housing is theirs. There are about 600 families living there and 365 people who are registered voters. The water supply is not very good. There are no street lights. The national highway cuts through the village and there is no speed-breaker or crossing for the vil- lagers, so it is very dangerous. Many people do not even have ration cards, BPL cards, residence proof. Because of the lack of infrastructure, there are many health issues as well. On September 2, 2011, the municipal corporation filed a police complaint against our fact-finding committee members, when we had merely visited the municipal cor- poration’s officer at her residence to share the grievances. They falsely implicated us in a case, claiming that we broke into her house, damaged her property and used foul language against her. We filed an application for relief to some other agency, and courtesy copied it to the MSHRC. It was dismissed on the ground that it was not a direct application. The MSHRC cited its regulations, under the authority of Section 10 of the PHRA, 1993, that it cannot entertain an issue where “only a copy of the complaint, addressed to some other authority, is received by the commission” (Section 12 (k) of the Ma- harashtra State Human Rights Commission (Procedural) Regulation, 2011, as cited in MSHRC Order dated December 19, 2011, SHRC/VGM/2011/24/8, Case No. 3573/2011-12).
MAHARASHTRA 415 Police Brutality on Adivasi Women Solapur District Written submission to the Jury
Kavitha Chacha Pawar and Others
am an adivasi and I belong to the Fharse Pardhi community. I have been living in Mukkam Kendar, Solapur, for many years. I earn my livelihood by growing I and selling crops. On August 26, 2011, at around 2pm, Police Inspector Shri Borade and Con- stable Che Sribangre, along with seven other officers, came to my house and raided my house. I have two daughters, Pinku Ashok Kale and Durga Gilesh Kale, both of whom are married and have children. They took my daughters outside and pulled off their sarees. I also have two sons, Vishal Pawar and Rakesh Pawar. The police hit my sons and my daughter-in-law, Neeta. They opened the cupboards and took about Rs 60,000 cash, which were our savings for fertilizer, along with jewels- including a mangalsutra and three mobile phones. They were then verbally abused and threatened to be shot down. They even took the children outside and beat them as well. I was at the Temburni market at that time. My son called me up and told me what was happen- ing, so I immediately returned home. The police inspector ran towards me, grabbed my shoulder, pulled off my dupatta, abused me and used sexual remarks against me. Despite everything, the next day, I went to the police station to register a com- plaint against Sri Borade. The person receiving the complaint, instead slapped me and told me to go away or else they would register a case of dacoity against us. They also threatened to skin my sons. We filed a complaint with the MSHRC on September 21, 2011. There was no response from them to date.
416 SHRC: SOCIAL AUDIT REPORT–III Illegal Detention Amravati District
Vivek Narhar Oak
n 2007, Avinash Palsodkar filed a case against me under the Negotiable Instru- ments Act, 1881, for a bounced cheque, at Amravati JMFC Court, Case No. I3335/07. I was acquitted of all charges on January 14, 2010. As an appeal to this, he filed a criminal appeal (Case No. 256-2011) at the Nagpur Bench of the Mumbai High Court. The court issued a bailable warrant against me on June 7, 2011. The warrant, prepared on July 7, 2011 by the registrar of the court was sent to the Judicial Magistrate of the JMFC Court on July 19, 2011, along with the order of the high court and directions given to the lower court. On July 29, 2011, at 2:30pm, two police officers of Amravati Police Station came in jeeps and took me to the Nangaon Police Station. That was the first time I came to know that an arrest warrant was issued against me. When I inquired why there was an arrest warrant, the police informed me that it was in violation of the Negotiable Instruments Act and the high court has issued an arrest warrant. I was in the police station till 4 pm and at 6 pm I met the police inspector Shri Anne. By then, my brother Vinod, my lawyer and my son and his friends had come to the jail. I asked the police to take me to court to plead for bail but they refused and I was put into the lock-up. I was taken for a health check-up to the civil hospital. I was then taken to Rajapet Police Station. The next day, at 3 pm I was taken to a judge and the court granted me bail. Even after I was given bail and left the jail, they handcuffed me as I left the court, as if I was some criminal. It was a defamatory case and as a result my business has suffered. Also, the Nagpur Court made it clear that it was a bailable warrant, and the police made it an arrest warrant- which meant I had to show up in court to get bail. The MSHRC dismissed the case without consideration of the facts. The order does not make clear the basis for dismissal, but rather restating the PHRA, 1993, Section 12 (MSHRC Case No. 2971/2011-12), stating that the complaint did not specify an actual human rights violation, “the matter was sub-judice before a court or tribunal, the matter was covered by a judicial verdict or decision, the matter is outside the purview of the commission”.
MAHARASHTRA 417 Abduction of a Adivasi Girl and Police Inaction Pune District Victim’s mother Rani Ashok Kale deposing the case
Seema
am a widow belonging to the Pardhi caste. My 17 year old daughter Seema was singing in a group owned by Shri Nana Hivre. She sang in this group in order I to fund the education of her younger brother. My younger daughter would go with Seema to the performances. On May 28, 2012, after one of their shows, when everyone had left the audito- rium, a yellow coloured tempo pulled up with Hivre and one Tajne inside. Tajne told my daughter some lies and she got into the car and it took off with her. My younger daughter who was there at the performance, witnessed this incident and informed me. I immediately went to the police station and registered a complaint. The police searched for them but could not find them. I filed a petition at various forum including police officials, the women’s com- mission, the home minister of Maharashtra, deputy chief minister, MLA of the local constituency, the secretary of the government, the press and the political parties. I filed a petition with the MSHRC on June 4, 2012. Till date, there has been no communication from the MSHRC. The case is still pending with the MSHRC.
418 SHRC: SOCIAL AUDIT REPORT–III Atrocities Against the Adivasi Community Solapur District Written submission to the Jury
Dondabai Baichanda, Siva Bhosle
am from the Pharsi Pardhi community. On October 13, 2011, at midnight, the head of the village Panchayat, had my metal sheet house burnt down. We were I living illegally on government land, but we were living there for many years. There was a false case against my husband and son, charged of robbing cows and chickens. I am not allowed to let my livestock graze in the common land, or to take water, or to use grain mill etc. I am not allowed to work on the farms. On the night in question, the villagers (mostly the upper caste), came to my house, doused petrol on the house and set it ablaze. We were sleeping at that time. We were awoken by the sound of the fire. As we ran out, the villagers started beating us up. They tried to push my children and husband back in the burning house. Sarpanch Sripathange and Channapa Patil who is the Police Patil were the ones responsible for this attack. Limba Kore, Ajit Kore, Sesha Kore, Sachin Harne, Namdev Kore, Ramesh Wagmare were also involved among others. All of our belongings have been destroyed- it is a loss of about Rs. 50, 000, for which I should be compensated. The perpetrators of the atrocity should also be brought to justice. I filed a petition before the MSHRC on November 4, 2011. The case is still pend- ing and the MSHRC keeps making excuses for the delays.
MAHARASHTRA 419 Rape And Murder of a Woman Pune District Victim’s father Chandrakant Dasta Pawar deposing the case
Late Shobha
n November 22, 2010, at about 11pm in the night, an acquaintance named Satish Hazare called and informed me that my daughter Shobha, aged 35, Ohad fallen down at Hagarvasti, Daraj. My son went to search for her and he was told by someone named Bavan that she was sitting on the bridge and asked to take her home. When he went to the bridge with Satish, he found her dead body under the bridge in the water below. The next day, I went to see the spot where my daughter died. Near the spot, I saw tobacco and footprints of five people. There were stains of blood also. I inferred from it that my daughter was raped and then murdered. To completely destroy the evidence, the perpetrators must have thrown her into the water. On November 24, 2010, I registered an FIR with the Indapur Police Station. A post-mortem was conducted and then the body came home. The body had injuries on the chest, stomach and thigh specifically, other than other parts of the body. She also had head injuries. I suspect that the person who called and informed me about her are behind this heinous crime. I filed a petition with the MSHRC on December 20, 2010. The case is still pend- ing and the MSHRC is yet to respond.
420 SHRC: SOCIAL AUDIT REPORT–III Atrocity on Adivasis Solapur District Written submission to the Jury
Vishali Akbar Kale and Others
am from the Phase Pardhi tribe. I have been living in Savdi Chopdi Karmala in Solapur for a very long time. On the date of the incident, July 27, 2010, at mid- I night, the Police Patil and local village men came to my house to attack me. They used police batons to beat me and my husband, and then forcibly removed my Saree. The people involved in this barbaric act were: Dada Sarjay Rao Madre, Bapu Sanjay Rao Madre, Kashinath Kadke, Nena Kadke, Keshavrao Deshmukh, Ruya Jadav, Sub- hash Bosle, Datta Shinde, Hanu Yadav, Barath Balu Fitar, Hasan Mohammad Sheikh, Tattu Machale, Santy Shelke, Pandu Shelke, Yedkad and 11 more people. They threw the television down, destroyed our furniture and looted some of our valuable property. They also threatened to charge us falsely with robbery. They hit me in the eye and as a result I have lost vision in that eye. They hit me and threw my 7 month old baby on the floor and hit her on the head too. No help came from anyone. After this incident, two of my daughters and my husband, Akbar Sonia Kale, 45 years, have been missing. I believe they have been killed. I filed a petition with the MSHRC on August 10, 2010. The MSHRC has not responded to my complaint as yet.
MAHARASHTRA 421 Brutality and Robbery by Police Satara District Written submission to the Jury
Nilima Rikya Pawar
case of robbery and rioting had been filed against our family. As a result of this charge, the police personnel from Lonad Police Station, led by Shri Avi- Anash Shilimakar, along with 25 or so other officers and 15-20 officers from the Husur Vadi Police Station, came to my house on January 21, 2012, at around 6 pm. They used rifles and sticks to beat us up, and then stole gold from our house. We filed a complaint with the MSHRC on January 27, 2012 and to date, there has been no response from them.
Denial of Right to Education Kurla, Mumbai District Naresh Gangaram Gosavi deposing the case
School Children of Kurla
filed a petition with the MSHRC on September 22, 2011, under MSHRC Case No. 3103/2011-12. The matter involved the right to education and the abuse I of school children. On November 19, 2011, the MSHRC dismissed the case on the ground that it did not constitute a specific violation of human rights and therefore outside the purview of the commission (order dated November 19, 2011, Case No. 3102/ 2011-12). The MSHRC dismissed the case in limine under Regulation 12 (h) and (i) of the Maharashtra State Human Rights Commission (Procedure) Regulation, 2011.
422 SHRC: SOCIAL AUDIT REPORT–III Police Brutality on Adivasis Pune District Written submission to the Jury
Kalpana Chalak Bhosle and Others
belong to the Phase Pardhi tribe. There are 10 to 12 families who belong to the same caste and live together. The police regularly come every night and harass us I and ask for money, because whenever there is a robbery, people of my castes are the usual suspects. So they demand for huge bribes to leave us alone. So, all of us women went to the police station to complain. The police in turn threatened us, that if we complained, they would book our husbands in jail for five years. SP Bandari, regularly comes and sexually harasses our women. We have done nothing wrong, but we still have to pay up Rs 50,000 as bribe/extortion money. The police have even gone to the extent of threatening the farm owners not to allow our husband to work. My husband has to give police the money, but they do not allow him to work for it. My daughters are scared of going to school as a result of this police harassment. There is another individual Shri Chaskar, another victim of similar extortion, from whom the police asked for Rs. 5 lakh. He makes water tanks so he managed to pay Rs 2 lakh. Because he could not pay the remaining amount the police kept harassing him to the extent that he committed suicide. We also told the policemen that we would commit suicide right in front of the po- lice station if they continue to harass us, but they seem to be indifferent to our plight. We filed a petition before the MSHRC on May 23, 2011, but they have not re- sponded.
MAHARASHTRA 423 Police Brutality on Adivasis Solapur District Patlinbai Afreesha Shah Bhosle deposing the case
Patlinbai Afreesha Shah Bhosle and Others
am from Pardhi tribe. The government had given me four acres of land. I live in a sheet metal house. My children work in the farm as labourers. There was a I robbery at the house of Mr. Maruthi Kade. My brother-in-law, Athmaria Bosle, falsely reported to the police that my children were responsible for this robbery. Just to create trouble for us, Gandia Afeesha Bhosle, Vinodia Afreesha Bhosle, Kalya Afreesha Bhosle and Abeejitya Afreesha Bhosle connived with him. Because of this false accusation, 16 people comprising of the local people of the area Karmala- and the personnel of the local police station came to our house and physically assaulted my children and my mother-in-law, Lochnabai Babya Bhosle, aged 60 years. For three days, my mother-in-law just lay in the field because of the severity of the injuries. They also sexually harassed the women of our house. My father-in-law, Babya Maganya Bhosle, aged 70 years, went into hiding during this period, out of fear. I am anxious about the safety of my family as I have no protection. I filed a petition with the MSHRC on October 11, 2010, and to date, there has been no action taken.
424 SHRC: SOCIAL AUDIT REPORT–III Murder of a Adivasi and Police Inaction Ahmednagar District Written submission to the Jury
Late Mahendra Bagchand Chawhan
am an adivasi and belong to the Pardhi tribe. My husband, late Mahendra Bagchand Chawhan, aged 30 years, from Pedgaon, worked in the brick making I industry and on the farms. Another person, Madreya Paljeya Chawhan, aged 35 years old, also in the brick making industry with my husband is residing at Jalalpur, Ahmednagar. Both of them were killed by a mob attack. My husband and Madreya Chawhan were bringing coal for the brick making factory by auto rickshaw- Vehicle No. AP MH 16/ 1498, Driver Maruthi Jagannath Godge, residing at Pedgaon. They were bringing coal from Pedgaon. In Jalalpur vil- lage, near Kadge Vasti, they stopped to use the restroom at night on December 9, 2011. It was dark and the village security guards were roaming in the village. They attacked my husband and his colleague with stones and knives, thinking they were thieves. After the attack, they got injured in the face, chest and ribs. My husband had Rs 40,000 and a mobile in his pocket and these were stolen by the attackers as well. They chased my husband to a bus stop where police were present and continued to beat them in front of the police chief. The driver of the rickshaw in which they had been travelling, told the police that they were not thieves. The police then registered a complaint at the Karjat Police Station. In this attack, 16 individuals were involved, including Neneswar Padurang Babar, Subhash Borade, Bandu Arjun Gongre, Appase Bapu Kasare and others. My husband and his colleague were beaten until death. Afterwards, the police came and in the same auto, took the victims to the government hospital and at the hos- pital they were declared dead. The auto-rickshaw driver should be taken into custody of the police and questioned. We are seeking compensation for the loss of our family member along with land for rehabilitation. We filed a petition with the MSHRC on January 13, 2012, but there have been no response from them as yet.
MAHARASHTRA 425 Harassment of a Woman at Workplace Washim District Chanda Pandurang Mane deposing the case
Chanda Pandurang Mane
was an assistant teacher at a school at Nagar Parishad Washim, an all girls’ school. I have been working there since 1987. I have been a hard working teacher and I there has never been a complaint against me by any student or parent. In 2007, Rajesh Bhagat joined as the Chief Executive Officer at the Municipal Corporation. He has been misusing his post ever since. He mentally tortures all the women who work under him. Since July 1, 2008, the class teacher Kemvani, who is the sister of the chief execu- tive officer, the principal, Rangdal and the physical education teacher, Chawan, turned five or six students against me and made them complain against me that I was not teaching well and that they could not understand Mathematics, despite getting 60-90 percent in their SSC board exams. The school stopped giving me salary. They restarted my salary on December 19, 2009. On December 30, 2009, during a math exam, the teachers and the principal again coaxed some students into complaining against me. As a result of this complaint, these people managed to get me dismissed from the school. The other students were not even allowed to take the exam. I have unused paid leave, medical insurance, dismissal leave benefits and other benefits to which I am entitled, but all these were tied to my work and in order to claim them, I had to go to the Chief Officer of the Municipal Corporation, who is the brother of the teacher. He said he would not give me these benefits until I met him in person, even though it was just bureaucratic paperwork. The chief officer also threat- ened to book an FIR against me and send me to jail, and would regularly threaten me with this kind of stuff. He would just constantly harass and torture me for no reason. On December 31, 2009, I have had enough and complained to his superior, the commissioner and appealed against my termination. The commissioner placed a stay order on my termination on January 28, 2010. Based on this stay order, I went back to work and entered my presence on the register. But the principal canceled my entry and has not given back the register and not giving any reason as to why she is not al- lowing me to sign in. Despite all this, I still go regularly to school from 11:30 am to 5:30 pm, but the principal says I may not register my attendance because the Chief Officer has told her not to. On January 29, 2010, I went to the Chief Officer and gave him a letter stating that I have been present and asked why he was not allowing me to register my attend-
426 SHRC: SOCIAL AUDIT REPORT–III ance. He claimed that my health certificate was not valid. He told me that I need to get it from the chief civil surgeon of the hospital and only then, will he allow me to sign in the register. So, on January 30, 2010, I got the required certificate as requested, and they still have not allowed me to resume teaching at the school. All of this has caused health problems for me- high blood pressure and so on. I filed a petition with the MSHRC in February 2010, but they are still to respond.
Sexual Assault by a Policeman Pune District Written submission to the Jury
Ashabai Nabilal Kale
n the afternoon of November 4, 2011, Shri Sheikh, the Hawaldar at the local police station, came to my house, held me down and physically assaulted me, tore Imy Saree off, and pressed my chest and sexually assaulted me. My mother, Susheela Nerdas Pawar, 70 year old, was beaten by this man as well. My daughter-in-law, Sonali Yogesh Kale had seen the police and ran away frightened. After he kicked my mother out of the house, he bolted the door from inside, and pressed himself against me and said he would take care of me like my husband. He also put his hands between my legs and pressed my private parts. I filed a petition before the MSHRC on December 5, 2011, for action to be taken against the perpetrator, but they are yet to respond.
MAHARASHTRA 427 Mysterious Death of an Adivasi Woman Amravati District Sagar deposing the case
Late Jarkai Ramkishore Dahikar
e are members of a fact-finding committee, Sathyashod sammithi, set up to ascertain the facts about the death of an adivasi woman. Jarkai Ram- Wkishore Dahikar is an adivasi from Medhkad Gaon who went to the civil surgeon hospital to get medicine. Later, her dead body was found near a drain near the hospital. Based on the circumstances, it first looked as if she killed herself. However, after a normal enquiry of people with knowledge of the incident, we came to know that she had been murdered. We created a committee known as the Sathyashod Sam- miti, to come to the bottom of what had happened. This committee was formed on December 24, 2010, and up to January 2, 2011, we compiled a file of evidence and information. We had some recommendations- to have a CID inquiry, a special task force for investigating the case, and in the hospital, there needs to be a police desk for ladies and that these steps should be undertaken with urgent effect. The reason we want the police desk for women is that advasis come from the village and they should be able to take treatment without fear. After the death of this adivasi woman, the other adivasi women were afraid of coming to the hospital for treatment. It is expected that administration of district hospital for women should imple- ment the following suggestions: • The officers and staff should wear uniform with name plate for the safety of women. • The police chowki and essential safety measures shall be provided in the cam- pus. There should be wired fencing over compound wall. • There should be enough electricity arrangements in the campus. • A night watchman should be appointed. • The dilapidated quarters should be repaired and allotted to the officers and staff for the residence. • Required officers and staff should be recruited. • A medical counselor should be appointed. • The staff in the hospital, cycle stand operators should have uniform with name and identity card. • CCTV cameras should be installed for safety. • Pigs are seen in abundance in the hospital campus. The animal husbandry
428 SHRC: SOCIAL AUDIT REPORT–III programs should be banned in the campus. Enquires in this regard should be conducted and actions should be taken. • A helpline and special cell should be started for welfare of tribal in Melghat. • The required strength of female staff should be increased for each ward. • The government should provide monetary compensation to the heirs/rela- tives of deceased and should take responsibility for nurturing the infants. • A copy of the complaint was sent to the MSHRC on January 10, 2011.
Sexual Assault of a Woman by Police Solapur District Written submission to the Jury
Biji Sandip Pawar
am a resident of Karmala, Solapur. I was booked by the Solapur District and Ahmednagar District Police Officer under false charges of robbery and theft. I I came to know that my family members have also been booked under false charges of theft and robbery. Policemen visit my house at odd times of the day and touch my private parts and molest my daughters, aged 16 and 12 respectively. At the time of this incident, my relative had met with an accident and I was with my relatives in Aurangabad Civil Hospital for 2-3 days. I filed a petition with the MSHRC on February 22, 2011, and there has been no response from them as yet.
MAHARASHTRA 429 Dalit Atrocity Amravati District
Shankar Nyanoba Uke
am a dalit farmer and I own 0.79 ar of farmland, which is my only source of living. We can farm only during monsoons. To the east of my farm is Sidhar I Namdev Uke’s farm. After his farm, is the government road. To the west of my land, they have started digging for some sort of drainage or irrigation. The Gramin Vikas Yojna is responsible for this digging. To the north, there is the farmland of Shantabai Hom. My neighbour, Santosh Suryabhan Gulane, belongs to the Teli Caste and as it’s an upper caste, he took his buffaloes on June 15, 2008, to run over my farm to trample and destroy it. When I confronted him, he abused me in a casteist way, he also threat- ened to ruin my farm and life. I have very little land and he is trying to take it over. Because of the road, I have lost 0.2 ar of my land and if the dam breaks, my land will be flooded. I complained twice on of June 16 & 18, 2008, to the tehsildar. I also complained at the Chokshi Police Station. But no one took my complaint seriously. They have not even bothered taking down my complaint. I filed a complaint at the MSHRC but they replied saying that this case has been dismissed. So the case has been now filed in the court.
430 SHRC: SOCIAL AUDIT REPORT–III Atrocity of Adivasis Karjat, Raigad District Avinash Gaikwad deposing the case
Adivasis of Karjat Village
work for an NGO called Vimukta Bhatke Sangarsha Mahasang, Maharashtra Pradesh, which works for the rights of nomadic tribes. We filed a petition on I behalf of persons belonging to the Phase Pardhi community, residing in Karjat village, whose houses were burnt down by a riotous mob. On July 3, 2003, villagers came and randomly started a riot and assaulted the settlement, including women and children, the women were raped and all the belongings of the houses were burnt. Their livestock, gold and money were stolen. After this incident, the local police arrested some of the boys from the settlement and accused them of causing the riot in their own settlement. The PSI, Chandrakant Shinde, had he taken any action on the date of the incident, then he would have known that the guys who were arrested had nothing to do with the rioting. On July 9, 2003, we went to the SP and asked for an inquiry, but no action has been taken. We filed a complaint with the MSHRC on August 5, 2003, but there has been no response from them as yet.
MAHARASHTRA 431 Atrocity on Adivasis Kadki Gaon, Pune District Written submission to the Jury
Sulochana Jalinder Pawar, Shalinbai Namnath Pawar
e have been living on our land for many years. We belong to the Phase Pardhi tribe. In the year 1952, a government official came and gave us WPlot No. 1224 of forest land, 16 acres and 22 guntas, for our livelihood. This still belongs to us. We regularly fill in all the assessments required for ownership of land and for all the grains they take from the land. We also pay the required rent for the houses in the land. The police and the villagers have been harassing us since the beginning. They file false complaints against us and try to chase us away from this land. They used to harass my father-in-law and my brother but now that they are gone, they harass me and my husband. The villagers and the police have put a false charge of robbery against us and in May 2009, they filed a breaking and entering case against us. As a result, we were taken away from our houses in the middle of the night and our houses were burnt after that. We tried to complain at two different police stations but none agreed to file our complaint. In January 2009, the sarpanch and the villagers came together to physically assault all of us. These incidents take place regularly but the police doesn’t take any action, despite our complaints. Nobody, except my father-in-law, has been allowed to have a voter ID card or anything of that sort. The government officials haven’t given us our due as a part of various schemes benefitting farmers, like providing grains, fertilisers etc. We are not al- lowed to make any use of our land to support our livelihood. We are not even allowed to dig a well. Whenever anything happens in the village, our family is held responsible. We are very scared and are not able to sleep at night and live peacefully.
432 SHRC: SOCIAL AUDIT REPORT–III Murder and Police Inaction Mangalweda, Solapur District Written submission to the Jury
Late Santosh Kale
n December 22, 2009, during an altercation at our house, a man shot my husband on the chest with a home-made pistol. My husband was shot on Othe right side of his chest while riding his motorcycle. He fell off and died. His brothers, Ashok Ramesh, aged 23, and Ravinder Ramesh Kale, aged 16, wit- nessed the incident. My husband’s name is Santosh Kale and he was shot by Papleya Urfe Ravindra Rama Kale. After shooting my husband the accused ran off with his two accomplices, Sankar Suresh Kale and Suresh Rama Kale. My husband’s brother went to the Man- galweda Police Station to file the complaint. The police took my testimony, carried out the post-mortem and then we cremated the body. On December 24, 2009 we went to the police station to enquire whether the shooter has been arrested, to what the Police Superintendent, Shri Nigod, responded that the accused have run away and the police are searching for them and they will be arrested in a couple of days. On January 1, 2010, we submitted the motorcycle as evidence and have been en- quiring about the case ever since. The police say that the accused have claimed to be in- nocent and we should take the case back in exchange of one acre of land and Rs. 4 lakh. We were constantly getting calls from the assailants to revoke the case in return of compensation, but we refused. The political groups also pressurised us to withdraw the case. We complained to the police that they are supposed to arrest the culprits and protect us, not force us to withdraw the case. On January 20, 2010, the PSI called us and asked us to collect the motorbike as they have checked it as evidence. We were asked to wait for a long time. They had ac- tually called us to the police station to file a case against us. They were going to arrest my brother-in-law. They then arrested my husband’s brothers and they suffered a lot of custodial violence. We filed a petition with the MSHRC on February 5, 2010, and we have not re- ceived a response from them as yet.
MAHARASHTRA 433 Dalit Atrocity Solapur District Written submission to the Jury
Dada Bapu Landge
am a dalit and I have been living in Mathang for many years. I work for the farmers as a labourer. Rajendra Saluke and his son Abijeet Rajendra Saluke had I my younger son arrested under the false charge of robbing a gas cylinder, at the Karmala Police Station. One day, when I was going to the farm, they assaulted me say- ing that they should not allow the people of my caste to stay in the village and that we are dirty and we should be chased out. They also threatened that if we filed a charge against them in the police station, they would cut my boys into pieces and throw them into the water by the dam. We were scared so we never filed a case against them with the police. On April 27, 2012, when I went to the river to switch the engine on, the father and son threw stones at me and hit me with sticks. I fell on the ground and they started kicking me. They also threatened us and verbally abused me based on my caste. I sus- tained injuries and hence was taken to the Solapur Hospital; my limbs were fractured and my condition was critical. On April 28, 2012, my family members came to visit me. The father and son burnt their own house down and I am sure they would frame us in a case regarding this as well. We filed a petition with the MSHRC on May 4, 2012, but the MSHRC has not yet responded to our complaint.
434 SHRC: SOCIAL AUDIT REPORT–III Police Inaction Padegaon Faltan, Satara District Written submission to the Jury
Anthony Gajaba Bhosle, Mubarak Gajaba Bhosle
y son Anthony Gajaba Bhosle and my brother-in-law Mubarak Gajaba Bh- osle were using someone named Chandu’s motorcycle, going from Shirvar Mto Lonal on bike. We live in Padegaon Faltan, Satara District. At around 7 or 7:30 pm, a jeep driving behind them – license number MH 12 JA 4972 – banged into them from behind on February 14, 2012. As a result they got injured and the driver of the jeep ran away. They are still under medical treatment. We were about to go complain to the police but they did not take our complaint or even do the Pan- chanama. Since then, there has been no action taken by anyone about this ‘hit and run’ case. We have no money for the medical treatment required. We know who is respon- sible but the police don’t want to arrest him and that’s why we have filed complaint with the SHRC to take some sort of action. The jeep belonged to the Balaji School. We want action against the driver and the principal. The principal is responsible for blocking the investigation. We filed a petition with the MSHRC on March 17, 2012, but there has been no response from them as yet.
MAHARASHTRA 435 Murder of a Adivasi and Police Inaction Pune District Written submission to the Jury
Late Babban Pawar
y husband, Babban Pawar was 60 years old. He tended livestock for a living. He had no criminal records and we were extra cautious to not be Mblamed falsely. My husband even had helped turn in the offenders many times. We belong to the Phase Pardhi tribe. He had complained against some people earlier as they were engaged in some criminal activity. They held a grudge against him and one day, on the pretext of going for drinks, they murdered him by smashing a stone against his head in Keth Paluka. On June 3, 2010, Chaknabai Hosha Pawar came to me on a motorbike and in- formed me that due to excessive drinking my husband’s liver burst and he died. We went to the liquor shop and found out that they had already thrown his body on the Dhanwala Railway diversion. We went to the Alandwadi Police Station to complain about the murder. A Panchanama was made and the body was given back to us after the post-mortem. After the cremation we went to the police station to find out about the proceedings of the investigation. The Investigation Officer (IO) said that he would arrest the accused first and then record our testimonies. We told the police that we have already provided them with all the information about who was involved in the murder and that the accused have gone to Mumbai. And if the police don’t arrest them now they will return and hurt my family or complain against my family. Police have not done anything about it yet. I then complained to the MSHRC on August 10, 2010 but they haven’t done anything yet.
436 SHRC: SOCIAL AUDIT REPORT–III Assault, False Case and Rape of an Adivasi Solapur District Written submission to the Jury
Vaishali Akbar Kale
belong to the Phase Pardhi tribe. On July 27, 2010, at around midnight I was in my house with my family. We were attacked by the villagers including young I boys and the Police Patil. They threw chili powder in our eyes and robbed the household of grains as well as utensils. The Police Patil raped me and a false complaint of theft was also filed against me, which I found out later. During the attack my left eye was hurt and now I cannot see from it. My seven month old daughter was also hurt by the crowd and she is in a critical condition now. Since that day my husband Akbar Kale, aged 45, and my two daugh- ters are missing. I suspect that they have been killed by the villagers and all this was done with an intention to encroach our five acre land. I filed a petition with the MSHRC on August 10, 2010 and there has been no response as yet.
MAHARASHTRA 437 Murders of Adivasis Ahmednagar District Avinash Gaikwad deposing the case
Ganya Kale, Labya Ganya Kale, Sakya Umbre Shinde, Navabai Ganya Kale, and Lakya Gordan Kale
work for an NGO called Vimukta Bhatke Sangarsha Mahasangha, which works for the rights of nomadic tribes. We filed a petition with the MSHRC on behalf I of five murder victims who were of the Phase Pardhi community- Ganya Kale, Labya Ganya Kale, Sakya Umbre Shinde, Navabai Ganya Kale, and Lakya Gordan Kale. The victims were using the state transport bus to travel. Because of the reputa- tion of their tribe (of historically and being), some unknown assailants assumed they were robbers and killed them while they were traveling. The five were stoned, kicked and killed. The victim’s family should get Rs. 2 lakh as compensation and there should be a CID inquiry into it. Those persons had no pre- vious criminal record. The victims’ families are scared because of what has happened and the police should provide them some sort of protection. A case was filed with the MSHRC on September 24, 2003, but there has been no response from them as yet.
438 SHRC: SOCIAL AUDIT REPORT–III Domestic Violence Dahisar, Mumbai District Written submission to the Jury
Chitralekha Sibru Kunju
married in 1989, through a valid registered marriage. After marriage, I stayed with my husband and in-laws for three months in Dahisar, Mumbai. Later, my I husband asked me to leave saying that I was Hindu and his family was Christian, and he said that since I was a Hindu, therefore, his sister was not getting married, in their Christian Community. So he wanted me to leave and return to my parents’ house. My husband filed a case in district court stating that the marriage happened while he was under the influence of some intoxicated substance, that I drugged him and conducted the marriage and fabricated all the documents and photos. He wanted an annulment. But he lost this case. Afterwards, I then filed a case in family court, demanding maintenance by my husband (since I had been kicked out and sent home) or be allowed to return to the matrimonial house. I won this case and won the maintenance of Rs.1000 per month. This maintenance had never been provided by my husband. Then my husband ap- pealed and the high court upheld the ruling. After the appellate ruling, he provided five months payment and since then he has absconded with the in-laws. I then filed a domestic violence case under the Protection of Women Against Domestic Violence Act, 2005 since he absconded and I faced a lot of difficulties from my family. In this petition I got relief from the court ordering the police to assist me in returning to my matrimonial house. Against this, my father-in-law filed a petition in sessions court upholding the lower court order. I then started to live in my matri- monial house again. Six months later, I left for some medical treatment and when I returned I found my husband and my in-laws living in the house and they didn’t let me enter into the house and neither did they return any of my possessions. I then started living with the Eunuch Community, with Jatin Rangarao Mami. All my expenses are being taken care of by them, for which Jatin even had to sell the house. My husband has re-married, despite all of the above facts. A petition was filed with the MSHRC on February 11, 2009. (MSHRC Case No. 6514/2008/09), on March 12, 2009, the Maharashtra State Human Rights Commis- sion (Procedure) Regulations, 2001.
MAHARASHTRA 439 Murder and Police Inaction Baramati, Pune District Written submission to the Jury
Late Avinash
n November 6, 2008, I dropped my son Avinash at Kurla HT depot and put him on a bus going towards Baramati. I also sent Rs. 25,000 with him for Omy daughter as she was having financial troubles. My son reached Nimbud village, where my daughter lives. He slept until the after- noon. He then told my daughter that he was going to Nira village to get some mutton (goat meat). He went to Nira village with my son-in-law, Mumia Nana Bhosle. They both had some alcoholic drinks at a bar in Nira. They then got into a fight. Mumia’s sister-in-law intervened and told them to stop fighting. After that, Waman Jadav Kai- kadi gave them 2 kilograms of mutton. They then took a jeep back to Baramati, and along the way they met Raju Shinde, and he told them to take his six year old daughter and drop her with his wife. When they reached Nimbud village, they gave Mumia’s brother, Yogesh, the mutton and told him to deliver it at his house and then went to the canal for a while. My daughter was waiting for them to return. At this time, a person named Gagya Kaikadi, who was also at the canal, saw Mumia on a motorcycle coming back alone. When Mumia returned to the house, my daughter asked him where Avinash was and he said that he had fallen into the canal. Then the entire household went to the canal to search for him. They searched until 8 pm and then came home. When I called Mumia, he told me that my son Avi- nash had fallen into the canal and we are searching for him but we couldn’t find him. Hearing this, I immediately went to Nimbud on November 8, 2008. For the next two days I kept searching through the canal for my son. Both Mumia and Yogesh avoided me during this time. My nephew found the body near the canal while he was cycling back to the village. The entire village ran to him when they heard his scream, and then they realised that the dead body was of Avinash. Everyone ran to the canal except Mumia and his father, who ran to the house of the people that they work for. When we removed the body from the canal, he had blood by his ear, and a deep bruise on the neck. His hands were tied by rope. The police did a post-mortem of the body and gave the body to me. We then cremated the body. On November 11, 2008, we filed an official complaint with the police, and told them that it was my son-in-law that committed the murder. But they have not arrested him. The police asked me and my family to resolve the issue amongst themselves.
440 SHRC: SOCIAL AUDIT REPORT–III Mumia’s family wanted to settle the dispute as well and were willing to pay the money as compensation. There is a lot of evidence against Mumia and the police have not done anything yet. So we filed a petition with the MSHRC on January 30, 2009, and they have taken no action or given any response to date.
Police Harassment of a Disabled Person Pune District Written submission to the Jury
Kesharbai Ram Bhosle
have been disabled since birth and cannot walk. A couple of our local neigh- bours- Sanjay Mane and Deva Kolatti - are the leaders of a thieves’ group and I then puts the blame on me and my family. They load stolen goods into truck of the Jaymalar numbered - MH 12 1661. I grow and sell lemons for living. Near our Choparpati there is scrap metal yard from which these guys come and steal, and then they blame me. Today also they physically assaulted me. Police are always coming to my house inquiring about these false accusations whenever some theft occurs. The po- lice never do anything to these two individuals, though we have repeatedly informed them of our innocence. The two individuals have political backing and police protection, but I have no police protection. Because I am poor, they constantly trouble me. Hence I filed this petition with MSHRC on February 10, 2011. But to date there has been no response from the MSHRC.
MAHARASHTRA 441 EXPERT comments RAJENDRA KALE Human Rights Defender
hile working for tribal welfare particularly for Pardhi people I observed that a lot of injustice is done even while registering their complaints at Wpolice stations. For instance, when one says that dust has been thrown in one’s eyes it is recorded by police that the dust is thrown on the head. The tragedy is that whenever tribal like Pardhi or Bhilla suffer from any harassment they seldom get justice because their complaint is not registered correctly by the police. I observed that whenever there is a theft, Paradhis and Bhillas are targeted by the villagers followed by harassments to the families and vandalising their houses. In such an event a social worker is unable to reach every time and help out the victims. When these victims ap- proach the police station they face lot of problems. If a complaint is lodged it is never heard or replied. I think that there should be a network of social workers in the area where such instances generally occur. While working in an organisation, I have seen that Pardhi people in Beed District are brutally murdered. I will not say that nobody in Pardhi community is guilty. But for the sake of fact that only five percent people in this com- munity are into crime i.e. theft, but the remaining 95 percent good people are being targeted for no reason. Therefore, the Pardhi community is getting further alienated. They are denied entry in the villages. They require prior permission of sarpanch to stay in a village. Sometimes, few people in Pardhi community itself oppose other Pardhis as directed by the leaders from the upper caste. We need to bring the entire community in the main course of society. The villages are the roots where the Pardhi community starts getting inhuman treatment. Therefore there should be a pressure group for wel- fare of Pardhi community. Whenever Atrocity Act is imposed there should be immedi- ate arrest. But the accused are favoured and allowed to get bail from high court which encourages them to commit future crimes. The marginalised communities like the nomadic tribes and dalits should be brought together to have a pressure group. The people who are harassing the marigi- nalised should be punished instantly. However, the police register merely non-cog- nisable offences against them. Many a times, the politicians also interfere and order the police not to register cases and help the accused. The Pardhi and Bhilla people are illiterate and cannot understand the legal side of the human rights. Even in schools the tribal students are given an unfair treatment. I have handled four such cases. But the cases are suppressed as it would “damage the reputation of the school if any action is taken”. The sarpanch and politicians lead in stopping action being taken against the
MAHARASHTRA 443 culprits. One ‘Rajendra’ (myself) cannot handle these cases. We have to come forward united with strength and overcome these issues. We should build organisations at lo- cal level instead of acting from outside. The offenders were scared of the Atrocity Act in previous days however now the people are not bothered about it which has led to increase in crimes against the backward communities. The police are key in these is- sues. If they register cases properly and investigate honestly the judiciary will be able to give justice to the victims and the backward community will get relief from such harassment by the criminals. I give best wishes to the MSHRC from my organisation and hope that we unite for welfare of the tribals.
444 SHRC: SOCIAL AUDIT REPORT–III SIMPREET SINGH Human Rights Defender
am going to speak about MSHRC’s functioning in the whole of Maharashtra. However, I am not very well versed with the situation in rural areas. It is very I important to talk about human rights in the State of Maharashtra. We normally go by the international standards of human rights. Babasaheb Ambedkar, Mahatma Phule, Savitribai Phule all worked to improve human rights in the country. And their contribution to the same is very important. There are numerous names who all have worked hard to strengthen human rights in the country. Untouchability and caste biasedness are some of the elements which divide society into groups and that causes gross violation of human rights. Since centuries, people have been fighting for uphold- ing human rights. Some of the incidences symbolises the situation in Maharshtra. One is an in- cidence from Satara District. Gram Panchyats people call up a public meeting and then pass a resolution; in one such gram panchayat meeting, a resolution was passed to prevent Pardhis from staying in the village. Raj Thakeray stated in the speech that Malegaon is a hub for terrorism and we need to eradicate it from there. In Pune’s Yerwada prison, a prisoner named Katil Sheikh was killed by the inmate. One of the judge of the Mumbai High Court, remarked that women should do all possible work because they are expert in multi-tasking. In Nasik District, some students were arrested under the charges of Prevention of Unlawful Activities Act (UAPA) and their bail petition was dismissed. Most of those accused are folk singers. In last month one slum was demolished without giving any prior notice. When questioned regarding this, the collector said whatever is done cannot be changed you can raise your houses again at the same place In Reay Road, Mumbai, one girl Lata Kambale, was beaten up along with her mother and then was stripped naked, that too only because she is a dalit. Poor and backward people are afraid of approaching courts, they are afraid that they might get arrested instead. Even after such a long period we have failed to es- tablish democracy in the country and that is one of the vital reasons that has caused violation of human rights at this vast rate. Even though Act came in 1993, the state government established MSHRC only in 2001 after eight years. Of the 30,000 cases, 25,000 cases have been dismissed by the MSHRC stating that these cases were frivolous and in only 50 cases MSHRC found some officers responsible for violation of human rights and in that too whether the order is being followed or not, is not being confirmed.
MAHARASHTRA 445 One cannot expect people from Vidharbha and other rural areas to approach the MSHRC which is located in Mumbai. A person who cannot make his ends meet will not be in a position to fund his travel to Mumbai every time he wants to make a com- plaint. One who cannot earn to meet the ends will not be in a position to spend on travelling. According to PHRA, 1993, Human Right Courts should be set up in every district which is not being executed. One of the members of MSHRC was sacked due to Adarsh Scam allegation and other resigned saying MSHRC is not as per his status. Chairperson and members are not willing to take stringent decisions. It is being used as a parking space for the high profile officers, such as retired police officers. For example, Subhash Lala was very close to then Union Home Minister Sushil Kumar Shinde and as a pay back to Lala, chairmanship of MSHRC was offered to him. If any complaint is filed against any police officer, MSHRC directs police offic- ers to file their reply within a month however police officers do not take it seriously; neither does the MSHRC even after showing the law, MSHRC is reluctant to exercise its power. Also they should be given a fixed time period in which they should dispose the case and speedy trial must be conducted. There must be many other organisations set up which can take up the cases of MSHRC. The MSHRC should not only be a puppet of government; it should include inde- pendent members. Also, the MSHRC outreach shall not only be limited to Mumbai instead every sessions court in the districts, as so provided in the Act too, should be declared as human rights court.
446 SHRC: SOCIAL AUDIT REPORT–III AVINASH GAIKWAD Human Rights Defender
have brought few people with me who have suffered. If you listen to them di- rectly instead of listening to me you will be able to know the facts much better. I Suresh Sawant from Chalanpur has come here. On December 10, 2010, on the day when human rights day is celebrated, two Pardhis were killed by the villagers as they were suspected to be thieves. The case has been filed against eight accused who have been arrested. The complaint has been lost by the Police Patil of the village him- self. In spite of this no action has been taken on the accused till the date. Complaint has also been lodged to the MSHRC and Women’s Commission. Suresh Chawhan and Shatru Pawar are here with me whose mentally challenged daughter of 30-32 years has been raped and killed. This case has been referred to MSHRC. Jalinder Pawar has land dispute. Rani Kale’s daughter has been cheated. There are so many cases which are being referred here. I would like to state that though I have referred such cases to the NHRC and the MSHRC, I could hardly succeed in providing justice to the vic- tims. Everybody must be having such experiences in NHRC and SHRC. It is felt that it would be better if such organisations like NHRC and SHRC do not exist because people waste time and money on them and do not get any result. The complaint is also lodged in the police station but the police do not take action due to political pressure. I met the collector and superintendent of police personally, but still no action has been taken as yet. I approached MSHRC but I did not get any response from them either. Whenever I call them over the phone I am asked to wait. It appears that the commis- sions are meant only for welfare of their staff. The purpose for which they are formed is not being served. I met the officers of the commission personally, but they lack sym- pathy for the victims. There is one case of Apeksha Mohite. She was brutally beaten up by the villagers. Her mother hid her in sugarcane farm. She died after 3 days. Nobody was arrested for the cause of her death. It has been decided by all including police and commission that no justice should be given to the Pardhi community in particular.
MAHARASHTRA 447 Chapter-III Jury Report
448 SHRC: SOCIAL AUDIT REPORT–III BACKGROUND
Human Rights Law Network in collaboration with many civil society organisations in Maharashtra organised an Independent People’s Tribunal on June 23, 2012, in Ahmednagar, Maharashtra. During the tribunal, several activists and victims provided their testimonies to the panel comprising the following persons:
• Ms. Shanta Ranade, Freedom Fighter • Ms. Roshni Nair, Assistant Professor, Centre for Criminology and Justice, Tata Institute of Social Sciences, Mumbai • Ms. Pratibha Shinde, Lok Sangharsh Morcha • Dr. Sanjay Jain, Assistant Professor, ILS Law College, Pune • Professor Motiraj Rathore, Vasantrao Naik University, Aurangabad
The following is the abridgment of the general observations and recommenda- tions of the committee:
OBSERVATIONS
After the depositions that were witnessed, some comments have to be made over the general inaction of the Maharashtra State Human Rights Commission on very serious human rights violations persisting in the state. Firstly, it is noticed that for the period between 2002 and 2007, there was no Chairperson at the MSHRC. This accounts for the piling up of cases at MSHRC. Moreover, the position of the Chairperson at the MSHRC has been vacant for a long time after Justice Kshitij Vyas left office in February 2012. Justice S.R. Bannurmath had joined the MSHRC as Chairperson in September 2013 only. Unless a commission is consistently composed of persons with the required status, one cannot expect the body to be effective in any way to the cause of human rights. Of the cases that came forward during the Independent People´s Tribunal, we noticed that most of the victims did not get any response from the MSHRC once the complaint was lodged. And in the rare occasion that the MSHRC did reply, it was only about the intimation of dismissal of the case on some or the other ground. This
MAHARASHTRA 449 kind of unresponsiveness and inaction from the MSHRC has led to a general frustration from the mass of victims and complainants who were pinning their hopes on seeking redress from the MSHRC on whatever grievances they had with respect to the violation of their human rights. What is further frustrating for the people, especially in the cases related to extra-judicial killings and police brutality, it is of no use approaching the police as they themselves are the perpetrators of the crime here, so they look at the MSHRC as a body, independent from the state agencies, hence hop- ing that they would carry out an independent investigation and deliver justice. But unfortunately, the MSHRC has not proved to be the body that these people could approach because of the lack of response and inaction from the body in such cases. Some of the general observations of the cases presented are given below: • There were 23 cases filed by women, 10 by men and two on behalf of a group/community. • There were many cases that seemed to reflect caste based atrocities especially of the Phaase Pardhi community. This in spite of the existence of the SC/ST (Prevention of Atrocities) Act, 1989. Another important point related to this issue is that of police indifference, torture or negativity towards them. • About seven cases pertain to the time period post November 2011 onwards. This is when the members’ term of service was over. Between October 2011 and February 2012, the three members and the chairperson had left and the current new chairperson and member only started their work with the commission in 2013. • In a few of the cases, the case seems to have been dismissed because they were not addressed to the MSHRC. • In two cases there was some order passed by the MSHRC but it was not followed. • In 12 cases approximately, there seems to be no action taken by MSHRC.
RECOMMENDATIONS
1. Regarding the Clause 8 (j) where a case may be dismissed if it is not addressed to the MSHRC. It has been noticed that a few cases were dismissed under this section. This needs to be re-looked at, considering the suo motu option is available for members. This could also reflect people not being aware of procedures of how to file a complaint and there is a need for information sharing regard- ing this. Another alternative could be that the scrutiny process at the intake itself at the commission should identify such situations and try and correct them (for e.g., just communicating back to the complainant to rectify this) so there is a check at the entry level itself instead of a case going to a member and then getting dismissed for this reason which is a waste of time and resources. 2. It is evident from these cases that while the narrative is detailed about the violation and the in- cidents, the actual appeal is vague and not focused. It is important that the expectation from the commission is clearly listed. 3. The communication system of the MSHRC to the complainant needs to be strengthened. There have been instances where people are unaware of their hearing dates or even the status of their case. Considering the distance between the complainants and Mumbai where the commission is located, this becomes an important point. 4. There are a lot of cases of caste based atrocities and of the police being unresponsive. This is a seri- ous issue and needs to be seen separately. In the light of the vulnerability and social discrimination around such cases, these actually warrant urgent attention.
450 SHRC: SOCIAL AUDIT REPORT–III 5. In situations where there is a non-compliance of the member’s orders, whose responsibility is to follow-up, the complainant or the member? There could be an action taken report put in place that is filled up before a case is closed. It would be ideal if the complainant signs on this document so it is a complete closure. 6. When MSHRC gives any recommendation, it is their duty to see whether same has been executed. The duty of the commission does not culminate at merely giving an order. 7. There have been some cases of police not responding and this needs to be taken up seriously. 8. There is a need to undertake a thorough review of the functioning of the MSHRC, its focus, its impact, the volume and variety of cases, from which locations and the way it has been processed with the intention of strengthening it and making it an important alternate space for justice. This analysis would require a data base of cases to be maintained at the commission itself. 9. In many cases, if the matter is outside the purview of the commission, could the complainant not just be referred to other bodies, commissions or organisations so that some help is received? This is a crucial role that can be played by the commission and would lead to being proactive and sensi- tive to the victim. 10. There seems to be no communication between MSHRC and the judiciary. There should be com- munication between them and they should support each other. 11. Many of the cases which were seen during the Independent People´s Tribunal were rejected only because the complaints were put in a wrong manner. So it should be seen that the rules regarding the MSHRC should be made known to people well. And it should also be seen that all the MSHRC employees should be given full information about the concerned regulations. 12. People should be guided about the way of getting justice. For example, there was a case of a teacher who was harassed by the principle and other teachers. She should first go to the responsible au- thority for her matter instead of directly coming to MSHRC. If in case she doesn’t get justice there then she can approach MSHRC. So in this manner the commission should guide the people with the correct way and procedure to acquire justice. 13. Many complaints receive no reply by the MSHRC. So a time limit must be set and it should be seen that the people get speedy justice. 14. The commission should give special attention towards the harassment and injustice done against persons belonging to the scheduled castes and tribes. Finally it is apparent that the MSHRC functions in a minimalist superficial mode of following what is written as it is whereas the expectation of human rights activists, field practitioners and victims is more about what can be interpreted and what can be aspired for. It is this dichotomy that separates the location and ideology with which both these actors work. An obvious conclusion from these cases is that the MSHRC needs continuous fillings of the job positions to guarantee its basic functioning. Secondly, it needs to make people aware about filing com- plaints and procedure of redress. It needs to also put into consideration, how the MSHRC can make itself more accessible, considering it is located in Mumbai, and many victims of gross human rights violations reside in faraway districts.
MAHARASHTRA 451 himachal pradesh Sukrita Lahiri | Salina Wilson
SL.No 01 City Shimla Total Cases before Jury 14 Date September 28, 2013 Jury: Mr. L. R. Sharma (Retd. District Judge), Mr. Sukhdev Premi (Social Activist), Mr. Kishori Lal Kondal (Social Activist), Adv. Mahesh Sharma, and Adv. Neeraj Kishore Sharma Networking Groups CORD, Dharamsala; Akhil Bhartiya Harijan League, Himachal Pradesh
EXECUTIVE SUMMARY
Himachal Pradesh State Human Rights Commission
When one thinks of Himachal Pradesh, one of the first things that come to mind is its abundant natural beauty and the supporting statistics show that it is the third fastest growing economy in India and the second least corrupt state of the country.1 These facts though cannot discount Himachal Pradesh of the human rights violations occur- ring in the state where close to sixty thousand cases of human rights violations were received just in the year 2011.2 Chapter five of the Protection of Human Rights Act, 1993 calls for the constitu- tion of the state human rights commission to exercise the powers conferred upon, and to perform the functions assigned to a state commission under this chapter. Under this Act, Himachal Pradesh was the second state in the country to set up its own state human rights commission after West Bengal. Though the human rights commission was constituted on March 18, 1995, the commission finally came into existence on October 28, 1995. Nineteen years after the formation of the Himachal Pradesh State Human Rights Commission, the body has been dejectedly unsuccessful in protecting the rights relat- ing to life, liberty, equality and dignity of the individual guaranteed by the Constitu- tion or embodied in the International Covenants and enforceable by the courts in India and in preventing human rights violations. This is so because the commission has been not in function since the year 2005. The Protection of Human Rights Act, 1993 states that the state commission shall consist of a chairperson who has been a chief justice of a high court and this requirement of the Act has not been fulfilled by the Himachal State Human Rights Commission since 2005, leading to the body being dysfunctional.
Independence Independence is one of the most essential components for the commission to function effectively in a non-partisan manner. Independence does not require for the commis-
1. http://himachal.nic.in/economics/pub.htm 2. http://hpplanning.nic.in/statistics&data.htm
HIMACHAL PRADESH 455 sion to be an isolated body disassociated from the state, but it rather calls for the ability of the body to take decisions without any interference from the state government, political party, or any other organi- sation. The commission should be legally and financially independent and also in its composition and formation. The commission should exercise its legal power independently. While inquiry into a matter, the commission can utilise the services of any officer or investigation agency of the central government or any other state government. Hence, there are possibilities of interference from state agencies in decid- ing a matter. The commission should also have the independence to carry out its day to day activities without any interference. In order to function independently, the commission has the power to for- mulate its own rules of procedure. The commission should also have financial autonomy and must be complemented by adequate, constant funding which has not been the case. The commission is also dependent on the state government for the appointment of the chairperson and the members. The appointment is made by the Governor along with the committee consisting of the chief minister, the main opposition party leader, speaker of the legislative assembly, and the minister in charge of the home department in the state. A clear bias can be felt and the power lies with the state government. The appointment process needs to be more transparent and it should have representation from civil society groups as well.
Jurisdiction A well-defined jurisdiction is required to make the people aware of its powers and functions. Accord- ing to the provisions of the PHRA, there are certain limitations to the commission jurisdiction. The commission cannot entertain the cases which are already pending before the National Human Rights Commission or any other state commission, cases which involve armed forces, investigation into al- leged violations is limited to one year from their commencement, the cases of human rights violations which involves public servant. Most of the cases received by the commission are against the police, of police inaction and caste atrocities. The commission has the power to give recommendations to the state government such as the granting of monetary compensation to victims of human rights violations, or for punitive or discipli- nary action to be taken against perpetrators.
Accessibility Accessibility of the commission is most important to function effectively. The office of the State Human Rights Commission was situated in the building known as ‘Pines Grove Building’, near Raj Bhawan. The staff meant for the institution of Lokayukta used to look after the matters relating to human rights ommission, in addition to their own duties. The Himachal Pradesh State Human Rights Commission has been dysfunctional since 2005 and hence the issue of accessibility of the commission is secondary only to the commission functioning again. Owing to the same reason, a functional website for the body also does not exist.
Operational Efficiency Adequate resources is essential for an effective functioning of the commission and since its establish- ment, the commission had been suffering due to inadequate resources. The commission failed to func- tion effectively because there is no proper staff, no chairperson or members and not adequate funds.
456 SHRC: SOCIAL AUDIT REPORT–III Accountability To make the commission work transparent and accountable, the commission was required to submit an- nual report to the state government and transparency through publication and dissemination of reports did enhance the commission’s credibility. Information about the cases and follow ups of the same can also be done by using the Right to Information Act and this is frequently being used.
PATTERNs OF HUMAN RIGHTS VIOLATIONS IN HIMACHAL PRADESH
The state of Himachal Pradesh being a serene tourist hot spot, also suffers from human rights viola- tions with majoritarian shades of casteism and violations by the police. There have been an increasing number of cases of human rights violations of dalits and tribals. Cases of environmental violation and degradation have also featured among the broader umbrella of human rights violations, and Himachal Pradesh being an economy thriving on tourism, such cases of environmental violations bear far reach- ing consequences.
Human Rights Violations By Security Forces The security forces, including police, are responsible for human rights violations in the state of Himach- al Pradesh. According to the National Crime Records Bureau, 2,702 complaints were registered against police personnel in Himachal Pradesh during 2006. As many as 1,805 police personnel were sent up for trials during the year.3 The current state of violations by police remains as horrid as previous years, and even if cases of torture are not registered, a lot of cases of police inaction exist.
Violations of Rights of Dalits and Tribals The people from the Scheduled Castes and Scheduled Tribes suffer numerous atrocities in Himachal Pradesh. The casteist feudal mindset still remains amongst the people of the state and that reflects in the kind and number of atrocities and violations inflicted on the minority communities in the state. The National Crime Records Bureau recorded 92 cases and 17 cases of atrocity against the dalits and the tribals respectively in 2006.4 Conviction rate in cases of atrocities against Scheduled Castes (SCs) and Scheduled Tribes (STs) is 20 percent in the State. In tribal areas, cases of atrocities were registered under the Indian Penal Code only and not under the Prevention of Atrocities Act.
Violence Against Women Cases of murder, rape, dowry death cases, kidnapping, molestation, harassment feature under this cat- egory of violations of human rights against only the female sex. Most of the cases of rape involve minors as victims. The feudal mindset of the hill town does not allow progressive changes to take place.
Violations of The Rights of Internally Displaced Persons Dam surveys are not conducted properly and as a result, the woes of the displaced people only increase even after they are left with no shelter, food or water due to the construction of the dam to serve the purposes of companies. In May 2007, the Renuka Dam Oustees Sangharsh Samiti demanded a fresh survey of displaced persons on the basis of the panchayat record and not the revenue record. According to Yogender Kapila, chairman of the Samiti, nearly 1,000 families would lose their homes and land due
3. http://ncrb.nic.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm 4. http://ncrb.nic.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm
HIMACHAL PRADESH 457 to construction of the Renuka Dam on the Giri River at Renuka (Dadahu) in Sirmour. However, as per the record prepared by the dam authorities, only 211 families were shown to be displaced. The survey was reportedly conducted around 20 years ago.5
CONCLUSION
The Himachal Pradesh State Human Rights Commission was established with the objective to ad- dress human rights violations in the state. The commission failed to fulfill its mandate and is in fact dysfunctional since 2005. There are numerous reasons responsible for the failure of the Commission to function effectively, some of them being lack of funds, unavailability of adequate staff, independence, autonomy, etc. The Independent People’s Tribunal on the functioning of the Himachal Pradesh State Human Rights Commission organised by HRLN in collaboration with some of the civil society groups in the state, highlights that the commission failed to deal with complaints filed by the victim themselves or any person or organisation on their behalf. Most of the cases are still pending before the commission and some of the cases are disposed by the commission based on the investigation report submitted by the state authorities, like police, who themselves are involved in the practice of human rights violations.
5. http://www.achrweb.org/ihrrq/issue3-4/ihrrq-jan-june-2011.pdf
458 SHRC: SOCIAL AUDIT REPORT–III the independent people’s tribunal jury panel social audit report Chapter-I Patterns of Violations and Functioning of HPshrc
462 SHRC: SOCIAL AUDIT REPORT–III INTRODUCTION
uman rights commissions (HRCs) were constituted and given the shape of statutory bodies in order to ensure quick and affordable justice to the poor and deprived classes of the society. Since the judicial processes in the country have become too costly and time consuming, it is almost impossible for the poor to secure timelyH justice at affordable costs. So, it was expected that HRCs will be able to remedy this situation with their prompt and equita- ble function. But in Himachal Pradesh, this does not seem to have happened.
It is a matter of great concern that the SHRC in Himachal Pradesh has, for vari- ous reasons, not been functioning in the spirit and for the purpose for which this statu- tory body was constituted. The plight of pending cases before the HPSHRC, some of which were put up before the jury during the IPT, proves beyond doubt that the HPSHRC is crippled and defunct body, incapacitated by government neglect. Himachal Pradesh has seen a host of violations of human rights ranging from police inaction, illegal mining, custodial torture, violations of the right to health, poor implementation of the Juvenile Justice (Care and Protection of Children Act), 2000, despite of the state facing substantial problems with juvenile delinquency. The following section throws light on the functioning of the Himachal Pradesh State Human Rights Commission in the years shortly after its inception and later goes on to explain the current status of the commission and why it is dysfunctional.
THE PARIS PRINCIPLES
The Paris Principles provide benchmarks against which proposed, new and existing National Human Rights Institutions can be assessed or ‘accredited’ by the Interna-
HIMACHAL PRADESH 463 tional Coordinating Committee’s Sub-Committee on Accreditation. Under the Paris Principles, NHRIs are required to: • Protect human rights, including by receiving, investigating and resolving complaints, mediat- ing conflicts and monitoring activities; and • Promote human rights, through education, outreach, the media, publications, training, capac- ity building as well as by advising and assisting governments. • The Paris Principles set out what a fully functioning NHRI is and identify six main criteria that these institutions should meet to be successful: • Mandate and competence • Autonomy from the government • Independence • Pluralism • Adequate Resources • Adequate powers of investigation But that has hardly been the case as the human rights institutions clearly lack the above mentioned requisite criteria as envisioned in the Paris Principles. And as one goes about discussing these criteria in detail in the later sections of this report, it will become clearer as to how these institutions functioning have been derailed because of lack of independence.
HIMACHAL PRADESH STATE HUMAN RIGHTS COMMISSION
hapter five, section 21 of the Protection of Human Rights Act, 1993 calls for the formation of the state human rights commission and in accordance with this, the Himachal Pradesh State CHuman Rights Commission was formed on March 18, 1995, and the commission finally came into existence on October 28, 1995. Section 21(2) of the PHRA states that the state commission shall consist of: a. Chairperson who has been a Chief Justice of a High Court b. One member who is, or has been, a Judge of a High Court c. One member who is, or has been, a District Judge in that State d. Two members to be appointed from amongst persons having knowledge of, or practical expe- rience in matters relating to human rights. Additionally, section 22 of the PHRA provides the guidelines for the appointment of the chairper- son and other members of the state commission and these are as follows: a. The chairperson and other members shall be appointed by the Governor by warrant under his hand and seal provided that every appointment under this sub-section shall be made after obtaining the recommendation of a committee consisting of the chief minister, speaker of the legislative assembly, minister in charge of the department of home in that state and the leader of the opposition in the legislative assembly.
464 SHRC: SOCIAL AUDIT REPORT–III b. No appointment of a chairperson or a member of the state commission shall be invalid merely by reason of any vacancy in the committee. Subsequently, sections 23, 24, 25, 26 provide guidelines for removal of a member of the state commission, term of office of members of the state commission, member to act as chairperson or to discharge his functions in certain circumstances and terms and conditions of service of members of the state commission respectively. Hence, there are extensive and exhaustive guidelines in place for the proper functioning of the state human rights commission but the picture on ground remains disappointing for the state of Himachal Pradesh. The early years of the existence of the Himachal Pradesh State Human Rights Commission saw the commission functioning fairly well with Hon’ble Justice (Retd.) P C Balakrishna Menon being the chairperson of the commission for the year 1996-1997. Other members of the commission for that year were Hon’ble Justice (Retd.) Shri Roop Singh Thakur, Mr. R L Sharma, Dr. I P Massey and Mrs. Kavita Khanna. The commission received 430 complaints in the second year of its existence from 1996- 97, out of which 267 were disposed off and 72 remained pending. The majority of 121 complaints were received by the commission in that year were against the police, 20 of which remained pending by the end of the year.1 Some of the important recommendations given by the commission during that year were as follows2: 1. The SHRC recommended to take necessary steps for a valid adoption of an abandoned female child. 2. The SHRC strongly recommended to the state government to issue instructions to all medical authorities to render prompt medical treatment to accident victims and provide them with timely medical assistance. 3. Financial assistance of Rs 1 lakh each was provided to the families of two brothers who died in police custody. The constitution of the Himachal Pradesh State Human Rights Commission in the following years, from 1998-1999 also had the same chairperson and other members, except Hon’ble Justice (Retd.) Shri Roop Singh Thakur who retired. The number of complaints which were received by the body in this year was 339, of which 231 were disposed and 108 remained pending. The maximum number of complaints continued to be against the police, where in, a total of 140 complaints were received by the commission, 98 were disposed, and 42 remained pending.3 Some of the notable actions of the commission in that year were4: 1. Police and jail reforms: On the initiative of the state human rights commission, the govern- ment of Himachal Pradesh, in the department of home, had issued instructions to secretar- ies, heads of departments, and the deputy commissioners to take prompt action on matters relating to protection of human rights. The director general of police, Himachal Pradesh also issued instructions to all the superintendents of police in Himachal Pradesh to the effect that behaviour of police towards women should be courteous and polite.
1. Fourth Annual Consolidated Report of the HPSHRC on the Administration of Protection of Human Rights Act, 1993 2. Ibid 6 3. Fourth Annual Consolidated Report of the HPSHRC on the Administration of Protection of Human Rights Act,1993 4. Sixth Annual Consolidated Report of the HPSHRC on the Administration of Protection of Human Rights Act, 1993
HIMACHAL PRADESH 465 2. Child Welfare Council declared as Child Adoption Agency: On the initiative of the com- mission, the Government of Himachal Pradesh in the welfare department declared the Himachal Pradesh Child Welfare Council as adoption agency for the adoption of chil- dren below six years, under the policy of Central Adoption Resource Agency of the Gov- ernment of India. Subsequently, instructions were issued by this commission to all the deputy commissioners in Himachal Pradesh to take action as and when the exigency to do so was felt. The commission also came out with some important decisions and recommenda- tions in that year and some of them were: 1. On a reference from this commission, the National Human Rights Commission made some recommendations to the Central Drugs Controller General of India and the company which supplied the contaminated dextrose bottles. They were asked to comply within a year and submit quarterly reports to the National Human Rights Commission. 2. An abandoned female child found near Kandaghat, was adopted by an IAS officer under the orders of the district court, Shimla for which application was moved by the Himachal Pradesh State Human Rights Commission. 3. With regard to a complaint from the residents of Tehsil Rampur, regarding nuisance of air and water pollution, due to the construction of Nathpa Jhakri Project, the member secretary of Himachal Pradesh State Pollution Control Board informed that they established a regional office at Rampur and frequent inspections were made regarding complaints of air and water pollution. 4. Instructions were issued at the government level on references from this commission to all concerned for prompt action on matters relating to the protection of human rights and change in the behaviour of the police personnel. Human rights courts were set up at the district level in Himachal Pradesh. Therefore, it can be comprehended that the Himachal Pradesh State Human Rights Commission, in its early years was an effective functional body, which also came out with certain meaningful recom- mendations. But the very purpose of the formation of the commission has been defeated since the year 2005 as it has been dysfunctional due to the appointments in the commission not being fulfilled.
FUNCTIONING
The Himachal Pradesh State Human Rights Commission, when it was existing till the year 2004-05, and if it becomes active again, has the following procedures and functionalities. This section will help in understanding the functioning of the commission in greater detail and further suggesting tools and techniques in order to enhance the effectiveness of the commission, as and when it becomes active.
Powers and Functions Section 12 of the Protection of Human Rights Act, 1993, lays down the scope and range of the func- tions assigned to the NHRC.5 Section 29 of the Act and its sub sections 9, 10, 12-18, apply to the state commission and accordingly, the state commission shall perform all or any of the following functions, namely: 1. Inquire,suo-motu or on a petition presented to it by a victim or any person on his/her behalf,
5. Fourth Annual Consolidated Report of the HPSHRC on the Administration of Protection of Human Rights Act,1993
466 SHRC: SOCIAL AUDIT REPORT–III into complaint of violation of human rights or abatement thereof, or negligence in the preven- tion of such violation by a public servant. 2. Intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court. 3. Visit, under intimation to the state government, any jail or any other institution under the control of state government where persons are detained or lodged for purpose of treatment, reformation or protection, to study the living conditions of inmates and make recommenda- tions there on. 4. Review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective im- plementation. 5. Review the factors, including acts of terrorism and inhibit the enjoyment of human rights and recommend appropriate remedial measures. 6. Undertake and promote research in the field of human rights. 7. Spread human rights literacy among various sections of the society and promote awareness of the safeguards available for protection of these rights through publications, the media, semi- nars and other available means. 8. Encourage the efforts of non-governmental organisations and institutions working in the field of human rights. 9. Such other functions as it may consider necessary for the promotion of human rights.
Administrative Set up The office of the Lokayukta, Himachal Pradesh has been working in the same building as the office of the state human rights commission since the inception of the institution of Lokayukta, in Pines Grove Building, near Raj Bhawan, Shimla. The staff meant for the institution of Lokayukta had been looking after the matters related to human rights commission in addition to their own duties. The commissioner-cum-secretary of the Lokayukta had been appointed as secretary of the Himachal Pradesh State Human Rights Commission and he was not allowed to draw any extra pay or remunera- tion for that job. Similarly, the inspector general of police was also working as the inspector general of police (Human Rights Commission) in addition to his own duties.
Powers Relating to Inquiries The state commission, while inquiring into the complaints under the PHRA, had all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular respect of the fol- lowing matters6: 1. Summoning and enforcing the attendance of witnesses and examining them on oath 2. Discovery and production of any document 3. Receiving evidence on affidavits 4. Requisitioning any public record or copy thereof from any court or office 5. Issuing commissions for the examination of witnesses or documents 6. Any other matter which may be prescribed Every proceeding before the commission shall be deemed to be judicial proceedings within the
6. Ibid 27
HIMACHAL PRADESH 467 meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, and the commission shall be deemed to be a civil court for all the purposes of section 195 and chapter 26 of the Code of Criminal Procedure, 1973, whereby, the sections mentioned are stated below: • Section 193: Punishment for false evidence-- Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. • Section 228: Intentional insult or interruption to public servant sitting in judicial proceed- ing-- Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs 1000, or with both. • Section 196: Using evidence known to be false-- Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. • Section 195 of the Code of Criminal Procedure: No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writ- ing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said code, when such offence is alleged to have been com- mitted in respect of a document produced or given in evidence in a proceeding in any court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that court, or of some other court to which that court is subordinate. • Chapter 26 of the CrPC: Provisions as to Offences Affecting the Adminstration of Justice.
Procedure for Dealing with the Complaints All complaints in whatever form received by the commission, shall be registered and assigned a number and placed before the chairperson for the purpose not later than two weeks of the receipt thereof. Every attempt should be made to disclose a complete picture of the matter leading to the complaint and the same may be made in English or Hindi to enable the commission to take immediate action. To facili- tate the filing of the complaints, the commission shall, however, entertain complaints in any language included in the eight schedule of the Constitution.
468 SHRC: SOCIAL AUDIT REPORT–III The chairperson has the power to dismiss a complaint which is outside the purview of the commis- sion, and he/she may in appropriate cases, issue interim directions at his/her own level. The chairperson and at least one member, and in the absence of the chairperson, two members may, in appropriate cases, constitute the quorum for the meeting of the commission. Upon submission of a complaint, the chairperson directs whether the matter would be set down for inquiry by it or should be investigated into and the chairperson for the commission has the power to as- sign the investigation to any person who so ever, in the circumstances, of the case, is considered proper and suitable. On every complaint on which a decision is taken by the chairperson to either hold an in- quiry or investigation, the secretariat calls for the reports/comments from the concerned governmental authority, giving the latter a reasonable time thereof. On receipt of the comments of the authority, a detailed note on the merits of the case is prepared for consideration of the commission. The recommendations and directions of the commission are communicated to the concerned gov- ernmental authority and the petitioner as provided for in section 18 of the Act. The commission, may, in its discretion, associate in its meetings, social activists and representatives of non-governmental organisations. Hence, it can be clearly understood that the functioning of the commission is heavily dependent on the government and this is the underlying reason behind the commission being lax in its effectiveness while it was still existing, and also it is responsible for the government’s apathy in taking steps for the commission to be functioning again. This strengthens the need for the commission to be structurally autonomous and independent of the government. the STATUS OF HIMACHAL PRADESH STATE HUMAN RIGHTS COMMISSION
The Himachal Pradesh State Human Rights Commission is not functional, as the commission itself stated: “The Commission is not functioning at present due to the reason that the post of Chairperson is vacant”.7 The post of the commission chairman has been vacant since July 16, 2005 after Justice N K Jain resigned from the post on July 15, 2005 after his appointment as chairperson of Rajasthan State Human Rights Commission. On January 16, 2006, Smt. Chandra Prabha Negi, Member of SHRC resigned. As a result, the SHRC was left with only two members - Shri B S Chauhan, Retd. District and Session Judge and Shri I D Bali, Senior Advocate, Himachal Pradesh High Court.8 Commission member Mr I D Bali resigned in 2006 in protest against the failure of the government to make the institution functional. Its only other member B S Chauhan also completed his term in September 2008. This is not in accordance with the provisions of the Protection of Human Rights Act, 1993 and violates section 21(2) of chapter five of the PHRA. The office of the Himachal Pradesh State Human Rights Commission used to be located in the building known as ‘Pines Grove Building’ situated near Raj Bhawan. The institution of the Lokayukta of Himachal Pradesh is also located in the same building and since the time of its dysfunction, the cases directed towards the state human rights commission are recorded by the Lokayukta and some cases are also taken up by the body of Lokayukta itself for disposal. The only person available to comment on the current status of the commission was the secretary of the HPSHRC, Mr. Bhanu Chirag Singh, who gave a brief account of what led to the HPSHRC being a
7. 2009 India Human Rights Report, Asian Center for Human Rights 8. Ibid 7
HIMACHAL PRADESH 469 redundant body and how the Lokayukta takes up some cases directed towards the commission for dis- posal. Hence, justice and relief still awaits the people of the hilly state whose rights have been violated as the government’s indifference finds its way through the inadequate decision making process for the appointments to take place to form the HPSHRC.
PATTERNS OF HUMAN RIGHTS VIOLATIONS IN HIMACHAL PRADESH
he state of Himachal Pradesh being a serene tourist hot spot, also suffers from human rights violations with majoritarian shades of casteism and violations by the police. There have been Tan increasing number of cases of human rights violations of dalits and tribals. Cases of envi- ronmental violation and degradation have also featured among the broader umbrella of human rights violations, and Himachal Pradesh being an economy thriving on tourism, such cases of environmental violations bear far reaching consequences.
HUMAN RIGHTS VIOLATIONS BY SECURITY FORCES
The security forces, including police, are responsible for human rights violations in the state of Himach- al Pradesh. According to the National Crime Records Bureau, 2,702 complaints were registered against police personnel in Himachal Pradesh during 2006. As many as 1,805 police personnel were sent up for trials during the year.9 The current state of violations by police remains as horrid as previous years, and even if cases of torture are not registered, a lot of cases of police inaction exist. Some cases are recorded for example: A case of custodial death occurred on May 9, 2011. Kishori Lal (46 years), resident of Palampur, died under mysterious circumstances at Jogindernagar police station in Mandi district. The deceased was arrested in connection with an alleged theft case on the previous day. Police claimed the deceased committed suicide by hanging himself with his shirt. But, the family members alleged custodial tor- ture.10 On the night of November 29, 2008, advocate Gitanand Thakur was arrested, illegally detained, and beaten up by police at the Mandi Sadar police station in Mandi district. The victim was returning from a wedding. The victim alleged that the police did not allow him to talk to his relatives when he was arrested. On December 4, 2008, a court directed the police to register a First Information Report (FIR) against four police officials. Medical examination revealed 30 percent damage to the victim’s ear and injuries to his eyes.11 Mr Roshan Lal, a resident of Alampur, was illegally detained at the Lamabagaon police station in Kangra district when he had gone to the police station to lodge an FIR on April 21, 2008. He went to the police station after he sustained serious injuries after being beaten up by two persons. However,
9. http://ncrb.nic.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm 10. India Human Rights Report Quarterly, January-June 2011, Issue 3 & 4, Asian Center for Human Rights 11. Ibid 10
470 SHRC: SOCIAL AUDIT REPORT–III instead of investigating the case, police illegally detained him at the lock-up and registered a case against him. Later, a few villagers went to the police station and asked the station house officer to register Mr. Lal’s complaint and release him. But, policemen on duty allegedly abused the villagers and threatened them. They all were forced to leave the police station.12
VIOLATIONS OF THE RIGHTS OF DALITS AND TRIBALS
The people from the Scheduled Castes and Scheduled Tribes suffer numerous atrocities in Himachal Pradesh. The casteist feudal mindset still remains amongst the people of the state and that reflects in the kind and number of atrocities and violations inflicted on the minority communities in the state. Conviction rate in cases of atrocities against Scheduled Castes (SCs) and Scheduled Tribes (STs) is 20 percent in the state13. In tribal areas, cases of atrocities were registered under the Indian Penal Code only and not under the Prevention of Atrocities Act. For example, the case of Surjeet Kumar demonstrates the violations against dalits in the state. On July 1, 2008, Surjeet Kumar, a Dalit student, was beaten to death by an upper caste teacher for writing a verse in praise of his classmate in Nangal Kalan village in Una district.14 The NCRB recorded a total of 132 cases of atrocities against SCs and STs in Himachal Pradesh in the year 2012, which has been the highest since 2001.15 This shows that the crimes and violations against the dalits and tribals of the state are only increasing, as we are also developing and progressing globally. But an analysis of this reading of the data compels us to question whether we are indeed in the middle of progressive or regressive developments in the country and even globally.
VIOLENCE AGAINST WOMEN
Cases of murder, rape, dowry death cases, kidnapping, molestation, and harassment feature under this category of violations of human rights against only the female sex. Most of the cases of rape involve minors as victims. The feudal mind set of the hill town does not allow progressive changes to take place. On April 8, 2008, the state government passed the Himachal Pradesh Panchayati Raj (Amend- ment) Act, 2008 raising reservation for women to 50 percent from one-third in all Panchayati Raj institutions and urban local bodies. This could be read through the lens of progressive steps being taken in the state, with respect to women, but it does not bear any effect on the social status of women in the state, the crimes being perpetrated against them and the violations of their rights as crimes against women continue to be reported. According to the police statistics, 1,106 cases of violence against women were registered in Himachal Pradesh in 2008. These included 36 cases of murder, 157 cases of rape, 137 cases of kidnap- ping and abduction, 295 cases of molestation, among others16. A case for example is that on June 15, 2008, a woman identified as Vimla was allegedly beaten up
12. Ibid 10 13. http://ncrb.nic.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm Ibid 10 14. c 15. http://ncrb.nic.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm 16. http://ncrb.nic.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm Ibid 10
HIMACHAL PRADESH 471 and paraded with her face blackened and shoes hung around her neck by 17 persons including the vice president of the Haran village Panchayat (Council) in Mandi district.17 The records of NCRB show us that in the year 2012, the total number of crimes against women which included rape, kidnapping, abduction, dowry deaths, immoral trafficking and others, and which were officially recorded amounted to 912. Amongst these, the maximum number of cases of violation were those of cruelty by husband or relatives and this amounted to 251, followed by 250 cases of assault on women with intent to outrage her modesty.18
VIOLATIONS OF THE RIGHTS OF INTERNALLY DISPLACED PERSONS
Dam surveys are not conducted properly and as a result, the woes of the displaced people only increase even after they are left with no shelter, food or water due to the construction of the dam to serve the purposes of companies. In May 2007, the Renuka Dam Oustees Sangharsh Samiti demanded a fresh survey of displaced persons on the basis of the panchayat record and not the revenue record. According to Yogender Kapila, chairman of the Samiti, nearly 1,000 families would lose their homes and land due to construction of the Renuka Dam on the Giri River at Renuka (Dadahu) in Sirmour. However, as per the record pre- pared by the dam authorities, only 211 families were shown to be displaced. The survey was reportedly conducted around 20 years ago.19 The construction of a dam in Chamba district has also been leading to displacement of the people of the district and more light has been shed on the case in the section of “Expert Testimonies”, where in Mr. Ratan Chand has spoken at length about the case.
ECOLOGICAL AND ENVIRONMENTAL VIOLATIONS
For a hilly state like Himachal Pradesh which thrives on the tourism industry, the impact of ecological damage can prove to be costlier than what might meet the eye. A case in hand is that of illegal min- ing. The state government failed to check illegal mining in the state. On April 19, 2011, the Himachal Pradesh High Court expressed annoyance on the working of the state authorities for failing to check illegal mining and directed the state government to stop illegal mining. The court also imposed a ban on mining at Chakki Khud in the Damtal area of Kangra while hearing a petition raising the issue of illegal mining. Unabated illegal mining had been causing serious ecological degradation. According to the State Industry Minister Kishan Kapoor, 1,532 illegal cases of mining were detected from April 2010 till February 2011. Out of this, 891 cases were compounded by imposing a fine of Rs. 43,20,165. Nearly 544 cases were sent to the court and rest other cases are pending for the legal action.20
VIOLATIONS OF THE RIGHTS OF children
Himachal Pradesh faces substantial problems with juvenile delinquency but the implementation of the Juvenile Justice (Care and Protection of Children Act), 2000 remains very poor. According to the data
17. Ibid 10 18. Ibid 14 19. Ibid 12 20. Ibid 13
472 SHRC: SOCIAL AUDIT REPORT–III of the National Crime Records Bureau (NCRB) of the ministry of home affairs, Himachal Pradesh registered 159 cases of juvenile delinquency under the Indian Penal Code in 2010, 127 cases in 2009, 122 cases in 2008, 118 cases in 2007, 102 cases in 2006, and 136 cases in 2005. Rule 47(1) of the JJ(C&PC) Rules of 2007 provides that “every institution shall provide education to all juveniles or children according to the age and ability, both inside the institution or outside, as per the requirement.” For the juveniles at the observation home cum special home for boys and girls at Una, there is no provision to attend formal schools. Inside the home they are provided “education” by a teacher but they are not issued any certificate.21 Some of the children homes have been found to be under-staffed which impacts care and protection of the inmates. A number of crucial staff positions have not been filled up such as the post of superin- tendent and the post of warden at Bal Ashram-cum-Children Home, Sujanpur, Hamirpur district, the superintendent or assistant superintendent at the Balika Ashram-cum-Children Home, Garli, Kangra district, and the post of assistant superintendent at Bal Ashram–cum-Children Home, Masli, Shimla.22 A lot needs to be done to improve the state of affairs in the field of safeguarding the rights of juve- niles in the state, like improving access to juvenile justice and establish observation and special homes in every district, conduct social auditing to monitor and evaluate the functioning of the children’s homes as required under Section 36 of the JJ(C&PC) Act, ensure segregation of the juveniles and children in need of care and protection as per the JJ(C&PC) Act, provide proper educational facilities including issuance of certificates on completion of the academic year and such other steps. The NCRB recorded a total number of 266 crimes against children falling under the category of the Indian Penal Code, and this has been the highest number of cases of crimes officially recorded in the state against children since 2001. The majority of the cases are of kidnapping and abduction, which amounts to 97 cases. This is followed by 89 cases of rape and 65 cases of cheating.23 Therefore, it can be seen that the state of Himachal Pradesh suffers from myriad human rights violations and with the Himachal Pradesh State Human Rights Commission being redundant, the situ- ation only gets worse for the preys of the violations taking place as they have no appropriate body or institution to go to which would provide relief, resulting in the building up of their woes.
CONCLUSION
The Himachal Pradesh State Human Rights Commission was established with the objective to ad- dress human rights violations in the state. The commission failed to fulfill its mandate and is in fact dysfunctional since 2005. There are numerous reasons responsible for the failure of the commission to function effectively, some of them being lack of funds, unavailability of adequate staff, independence, autonomy, etc. The Independent People’s Tribunal on the functioning of the Himachal Pradesh State Human Rights Commission organised by HRLN in collaboration with some of the civil society groups in the state, highlights that the commission failed to deal with complaints filed by the victim themselves or any person or organisation on their behalf. Most of the cases are still pending before the commission and some of the cases are disposed by the commission based on the investigation report submitted by the state authorities, like police, who themselves are involved in the practice of human rights violations.
21. The State of Juvenile Justice in Himachal Pradesh, Asian Center for Human Rights, October 2012 22. Ibid 19 23. http://ncrb.nic.in/CD-CII2012/Additional_Tables_CII_2012/Additional%20Tables.htm
HIMACHAL PRADESH 473 Chapter-II Testimonies
474 SHRC: SOCIAL AUDIT REPORT–III Case of Murder and Police Inaction Kangra District Victim’s wife Urmila Devi deposing the case
Late Tilakraj
Urmila Devi, r/o VPO Sukkar, Tehsil Dharamshala, District Kangra, was mar- ried to Late Tilakraj, a driver by profession who used to deliver newspapers. I On June 18, 2011, my husband was returning from Kullu in the morning at around 9 am after delivering newspapers. He met with an accident near Patkulh with a vehicle numbered HP 58-3202, as a result of which that vehicle got minor damages. Consequently, the owner of the vehicle started quarrelling and beating my husband. My husband was seriously injured and was immediately taken to a local hospital and later referred to Chandigarh PGI, where he died. The matter was reported to a nearby police station, an FIR was registered and nothing has been done after that. I have three children and my husband was the only earning member of our family, and I am now struggling hard to fulfil our daily needs. I made the following prayers to the HPSHRC on February 1, 2012: a) To help me in getting justice b) To provide me with appropriate compensation c) To provide me with other remedies and reliefs available The Himachal Pradesh State Human Rights Commission did not respond to my complaint till date.
HIMACHAL PRADESH 475 Denial of Social Securities Scheme Kangra District
Kanchan Devi
Kanchan Devi, d/o Madanlal, village Chahri, Kangra, got married to Rakesh Kumar, who was from Tikari Gram Panchayat, District Chamba, on August 7, I 2008. I was physically, mentally and economically tortured by my husband, who abandoned me when I got pregnant and ever since, I have been living in my native home. I filed a complaint of domestic violence against my husband in Kangra Police Station on February 22, 2009, case no.-KAN/15/20097. The court ruled in my favour. My son was born on July 23, 2009 and both of us have been residing in Muhalkar Chahri. I approached the Gram Panchayat at Muhalkar Chahri to enter my son’s and my name in the Panchayat register. The concerned secretary advised me to get a state- ment from my in-laws Panchayat at Tikari, stating that my son’s and my name are not entered in that Panchayat register. Despite giving the copy of the required documents, the concerned secretary refused thrice. I was taken to the block office by the concerned secretary twice and was misguided again. For four years, our names did not appear in any Panchayat register in India. We are, thereby, unable to avail any of the social security schemes. I wrote an application to e-samadhan which is the state governments grievance redressal website. The reply given to me was that I have filed for divorce in the hon’ble civil court Kangra and that my case is pending before the hon’ble court for separation. In reality, I have filed no such case for divorce. I made the following prayers to HPSHRC on February 11, 2013: a. Order the concerned secretary at Muhalkar Chahri Panchayat and other con- cerned officers to enter our names in the appropriate register of my natal Panchayat and make my ration card immediately. b. Order the secretary to change the wrong post office name in the birth certifi- cate of my son. c. To request to take necessary exemplary action against the concerned secretary that he will not repeat this type of wrongful act in the future. d. Provide appropriate compensation. The HPSHRC responded on March 13, 2013 stating, “It is informed that pres- ently, the HP State Human Rights Commission is non-functional. Therefore, no ac- tion can be taken on your complaint, by the commission, which is not in existence, at present.”
476 SHRC: SOCIAL AUDIT REPORT–III Case of Police Torture Dharamsala, Kangra District Sanjeev Singh deposing the case
Sanjeev Singh and Sunil Thakur
Sanjeev Singh s/o Late Bhag Singh work with an AIDS control society in Himachal as a peer educator. My friend Sunil Thakur and I were beaten up mer- I cilessly by the Dharamsala police on November 17, 2011 and false complaints were charged against both of us. I wrote to the superintendent of police to investigate about the incident on November 21, 2011. This resulted in the police harassing us by visiting our residence and asking us to give statements every day. I am anxious that this will result into more police harassment as they have previ- ously tortured a confession out of me and my brother and also taken our signatures on a blank paper. I had written to the SP, Dharamsala that they should request a magistrate or any other trustworthy organisation to look into this matter since the allegations were against the police and they would obviously be biased in investigating this matter. I sent a complaint to the NHRC on December 3, 2011 but it didn’t yield any response as yet.
HIMACHAL PRADESH 477 Dalit Atrocity Sirmaur District
Sunder Singh
Sunder Singh, r/o village Chunni, Rajgarh Police Station, Sirmaur District, be- long to Scheduled Caste(SC) category. My ancestral family was employed as I bonded labourers with the rich and influential upper caste family of the village. When my family refused to work as bonded labourers, the family members of the up- per castes unleashed a reign of terror. They started harassing my family. Supply of drinking water was stopped, water spring near our house was cordoned off in March 2007 by Som Raj and Ranjit Singh who are Thakur by caste. My family has been restricted from drawing water from the common irrigation pond. We have been stopped from walking on the village common path as well as on our own land. My family has been continuously tortured, beatened, threatened with dire consequenc- es if we refused to work on their land. Though the FIR has been registered in Rajgarh Police Station as FIR no.34 inder section 429,147,148,149,451,323 of IPS on June 03, 2008 against Somraj Rajput, Gita Ram, Sukhdev, Baldev, Arun, Kapil, Anil etc, atrocity sections were deliberately not included in the FIR to save the perpetrators. We approached higher authorities in hope of justice but no heed was paid to us and we continue to live under immense fear. We were further harassed for approaching higher authorities for justice. Nobody is listening to us. We sent a somplaint letter egarding this to Himachal Pradesh SHRC in Septem- ber 2008 registered as HRC-5 (E) 5-4/2008 and we got a response from the secretary of Lokayukta cum human rights commission that since SHRC is not functioning, we should instead approach the Lokayukta. There also, our complaint was rejected.
478 SHRC: SOCIAL AUDIT REPORT–III Case of Fraud and Administrative Inaction Sirmaur District Victim’s father Chandan Singh deposing the case
Jagdish
Chandan Singh r/o village Satahan, Block Sangrah, Sirmaur District, com- plained to the district commissioner (DC) regarding the irregularities going on I in the recruitment for the post of primary assistant teacher in the year 2006. My son Jagdish had applied for the post under the IRDP category. One Mr. Manoj, son of Sant Ram of village Khajwa, by adopting illegal methods and his influence with the Pradhan, Tulsi Ram, included the name of his father in the IRDP category with the main objective of getting himself selected for the post of pri- mary assistant teacher. The village panchayat head Mrs. Satya Devi had also declared that the name of Sant Ram was included in an illegal and fraudulent manner as per a letter dated April 30, 2006. I wrote multiple complaints to the deputy commissioner, Sirmaur District on April 24, 2006, August 29, 2006, November 18, 2006 and June 25, 2009, stating the aforementioned incident and requesting that post investigation, the appointment of Mr. Manoj be cancelled and instead my son Jagdish be appointed. On November 13, 2009, the order by the division bench consisting of Hon’ble Justice R B Mishra and Justice Rajiv Sharma (Himachal Pradesh High Court), stated that the case be decided by the deputy commissioner. The DC then wrote to the director of elementary edu- cation, HP on March 11, 2010, that by the enquiry into the complaint of Chandan Singh, made through the project officer DRDA, district Sirmaur at Nahan and also in view of the judgement of Hon’ble High Court of Himachal Pradesh, dated November 13, 2009, the block development officer, Sangra had intimated that the IRDP/BPL certificated issued to the family of Shri Manoj Kumar s/o Sant Ram is genuine and that this status of BPL has been rightly granted to the family. The DC intimated the same to the directorate of elementary education of Himachal Pradesh, which he concluded in letter dated April 9, 2010 that the authenticity of the BPL certificate of Manoj Ku- mar proves that there is no need for interference in the selection of Mr. Manoj Kumar by the selection committee. Since the SHRC is not functional in Himachal Pradesh, the complaint has been sent to NHRC on June 6, 2013, registered as Case No.88/8/10/2013/OC. The NHRC has transferred the matter to the district magistrate of Sirmaur district and left it to ‘the concerned authority to take action as deemed appropriate.’ I am still awaiting justice for my case.
HIMACHAL PRADESH 479 Police Atrocity Kangra District Prem Chand deposing the case
Hardev Singh
Hardev Singh, s/o Shri Gurvachan Singh has been a drug addict for over 17 years and I have not been able to quit. I have gone to the rehabilitation centres I in both Dharamsala and Chandigarh but have still been unsuccessful in my at- tempts to quit. Regarding the same issue, eight police cases were leveled against me and I have been acquitted in six of them. I was in prison and after four years I have been successful in the de-addiction process and started working as a domestic help. In one instance, the Shahpur police approached me at my workplace because of which I was removed from work. Since then, I have been continuously harassed by the police. False cases were charged against me. I was compelled to admit in writing that I had suicidal tendencies. But I have also helped the police in getting hold of other drug addicts and drug ped- dlers. I work in an AIDS control organisation in Dharamsala. I wrote multiple complaints to the police but since the charges are against the police, the investigation is apparently biased. I wrote to the Himachal Pradesh State Human Rights Commission on July 20, 2012 and it has yielded no response as yet.
480 SHRC: SOCIAL AUDIT REPORT–III Land Grabbing of a Dalit and Police Inaction Sirmaur District
Jaani Ram
Jaani Ram, had filed a complaint with the NHRC regarding the forceful grab- bing of land by my villagers on December 25, 2012. I am being mentally tor- I tured by the fellow villagers. The crops as well as the livestock on my land have been destroyed by them. When I refused to do bonded labour, they started beating me up. On August 1, 2010, the villagers destroyed my crops by making their live- stock graze on it. When I tried to stop them, they beat me and verbally abused me. I had filed a complaint with the Rajgarh police station on August 4, 2010 and did not get any response from them. They have not even investigated into my complaint. I have written an application to the deputy commissioner, Sirmaur in January 2012 and SDM and also to the Governor. I have received a revenue record stating that the concerned land belong to me. In spite of this, a case of encroachment by the revenue deptartment has been leveled against me and a fine of Rs. 14 lakhs has been imposed upon me. The NHRC responded on June 6, 2013, passing on the complaint to the “con- cerned authority for such action as deemed appropriate”. There has been no action taken on my complaint by anyone.
HIMACHAL PRADESH 481 Dalit Atrocity Sirmaur District
Kanku Ram
Kanku Ram s/o Saniya Ram, r/o Jaraas Village, Rajgarh Police Station, Sirmaur district belong to the Scheduled Caste (SC). I was beaten, harassed and abused I by the people of Rajendra Sharma s/o Jain Ram r/o Koti Padog Village, Rajgarh, for bringing out his involvement in the irregularities going on in MGNREGA scheme as he was forcefully taking money from the labourers working under this scheme, including me. When I brought this up, and refused to give money they abused me with deroga- tory casteist remarks. I was publicly humiliated. This happened on February 26, 2013. Regarding this, I filed an FIR in Rajgarh Police Station which was only registered on March 25, 2013, after much persuasion. The case was registered as FIR no.25 under sections 323, 325, 504, 506. The police deliberately excluded the atrocity sections of SC/ST(Prevention of Atrocities) Act, 1989, to weaken my case. No action has been taken by the police in this case against the perpetrator. Moreover, the accused, Rajesh Sharma’s wife filed a false complaint against me on May 16, 2013, in revenge of the complaint I have filed against her husband. The police showed much enthusiasm and even issued warrant in my name under sections 107, 150 of CrPC, even though no action was taken in my complaint against the accused. My family and I have been living under constant fear as the police is not taking any appropriate action against the accused. The accused are constantly threatening us to leave the village and are also giving death threats. I also wrote to the chief minister but yielded no response.
482 SHRC: SOCIAL AUDIT REPORT–III Unnatural Death and Police Inaction Hamirpur District Ashok Kumar deposing the case
Late Rakesh Kumar
he dead body of Rakesh Kumar s/o Jagat Ram who was in the Indian Army, was found on the morning of October 24, 2012 at his in-laws’ village Kohla. TThe deceased had come for his appearance in Badsar Court as he was accused of killing his wife Swarashni Devi, who had actually died after consuming poison. On October 23, 2012, Rakesh along with his friends had gone to the Kalka Mata temple to help in arrangements for a night vigil. Around 9:30 pm the weather turned bad and everybody was busy in collecting the crops since it was raining, while Rakesh continued to help at the temple. In the morning, around 6 am, the relatives went to look for him, but when the relatives failed to find him, they went to the police station at Diyotsidh. At that time, the relatives got a call from Badsar police station revealing that they had found Rakesh’s son’s body. On September 30, 2012, Rakesh’s in-laws came to retrieve all the dowry they had previously given and despite returning everything, when questioned by the Badsar police, they stated otherwise. Rakesh used to continuously get threat calls from his in- laws, stating that whenever he would return home, they would kill him which could be verified by checking both the parties’ call records. The relatives suspect that on the night of October 23, 2012, Rakesh was abducted and murdered. The relatives also gave a list of suspects in their complaint to the HPSHRC dated October 26, 2012. It has yielded no response from them, as yet.
HIMACHAL PRADESH 483 Unnatural Death and Police Inaction Solan District Written submission to the Jury
Late Bhupinder Nath
Tara Kashyap had requested a probe into the brutal killing of my father, aged 80 years, late Bhupinder Nath who was living alone in a village Phangol, district I Solan. His complete post mortem report had arrived from Junga police station, Dharampur. His decomposed body was recovered by Subathu police station. On his medical post mortem report, there are injury marks on different parts of the body and the cause of death remains unclear. When his body was recovered by the police in a de- composed naked state from a deep valley, it is questionable how a man aged 80 could go there on his own free will. Some mischievous incidents keep occurring at our house, because of which we feel threatened to visit our natal house. I filed a complaint with the HP SHRC on September 14, 2011 but it has yielded no response from them, as yet.
Dalit Atrocity Rajgarh, Sirmaur District
Bhagti Devi
Bhagti Devi w/o Late Prempal, was not at home on July 12, 2008 and my younger son Sunil was alone at home. My neighbour’s son Arun Kumar came I at home and threatened to kill my son. I am a widow. The Thakurs (dominant caste) of my village threaten and physically abuse me. They threaten to force me out of our land. They also want to make my elder son work as a bonded labourer. I filed a complaint with the Rajgarh police station on July 13, 2008. There has been no investigation into my case.
484 SHRC: SOCIAL AUDIT REPORT–III Dalit Atrocity Rajgarh, Sirmaur District
Sahi Ram
Sahi Ram, owns land in Sirmaur which has been under threat continuously since 1996 when my house was set on fire by fellow villagers. On bringing it to the I notice of the Gram Panchayat, the Panchayat agreed to provide for compensa- tion for the loss. I also wrote to the DG of police in Rajgarh, but no compensation or relief was provided. My house and crops were burnt again in 2008, a daily station report of the same is with me. I wrote to the chief minister on December 15, 2011 putting forward my grievances but I have not received any response for the same till date. I have the re- quired legitimate documents dating that the land is owned by me. I have the revenue record for the same, a recommendation by the BDC member of zila parishad stating that I should get my land back. Despite this, on the contrary, a false case has been filed by the judicial magistrate, forest department in November 2013 stating that the concerned land is not mine. I am still awaiting justice.
Land Grabbing of a Poor Woman Palampur District Written submission to the Jury
Hira Devi
Hira Devi, w/o Shri Munshi Ram, r/o Palampur complained against our neigh- bours Sheshi Ram who forcefully grabbed my land and when I retaliated, they I abused me verbally and still keep fighting about it. I put this in front of the Gram Panchayat, despite they have continued to hold on to my land. I filed a case in the Palampur court regarding this issue. In return to this, the perpetrators filed false cases against me. I am from a poor family and when we approached the police, they in turn, filed a case against us. We filed a case regarding this in the HPSHRC on July 1, 2012 and it has not yielded any response as yet. I am still awaiting justice.
HIMACHAL PRADESH 485 expert comments Prof. K.S. Dheer Senior Academician and Social Activist
e all know that our country is an independent democratic country. We got independence in 1947 and before that our country was a slave of the WBritish, with no rights. But today, even after achieving freedom and being a free country, the rights guaranteed by the Constitution of India are not guaranteed in practice. There are certain rituals even today, religious rituals and others, which are in accordance of the Constitution, but certain others also exist, which are not in accordance with the Constitution, for example, the practices and actions of the khap- panchayats. Talking about Himachal Pradesh, the Protection of Human Rights Act came into practice in the year 1993 and the Himachal State Human Rights Commission was formed in 1996. It has been defunct since the year 2005, and currently only the build- ing remains. When I was a state level officer in Himachal Pradesh, we used to spread awareness in schools and colleges about human rights. So we tried to make the teach- ers and students aware about human rights and the violations taking place. Some of the basic fundamental rights that we have are right to life, right to equality, right to express ourselves freely, freedom of religion, cultural rights etc. When we talk about rights, we have for example, the right to convert into any religion. The religion we practice, also involves certain atrocities playing out. While conversion into another religion also comes with certain restrictions, hence, in some ways, it results in a curtailment of freedom and rights. The constitution also guaran- tees the right to live and work with dignity. The Preamble states that we are a sovereign socialist secular democratic republic. But on visiting the villages, it can be seen that the Dalits and people from other lower castes are addressed by derogatory terms and called by the name of their caste, their rights and freedoms guaranteed by the Consti- tution hence being seized. Another instance is of the mid-day meal scheme, when children are served food in government schools, they are made to sit separately according to their respective castes. Our organisations conducted some studies on these issues and some cases were sent to the National Human Rights Commission, as there is no such relevant function- ing body in Himachal Pradesh. Such casteist acts are even practiced in temples and markets across the country, with sign boards stating “no entry of Dalits.” This is all happening when the person is still alive. But even after they die, they do not get away with these acts. For example, in Kangra, Himachal Pradesh, the grave yard for Dalit, Rajput, Brahmin is not in the same place or not even in the same vicinity. In Haridwar,
HIMACHAL PRADESH 487 when the closed ones of the deceased go to immerse the ashes, they are enquired about their caste first. So even after a person dies, the caste remains. Similar ways and means of oppression operate over women, and doubly so for the dalit women. A majority of the cases of rape and sexual assault come from the most oppressed sections and taking the legal route is not always a feasible option for them because of the amount of time and money it demands. A human rights commission or a women’s justice body can play a significant role in this regard by contributing in speeding the delivery of justice. Casteism manifests itself in myriad ways and it should be our duty to question its manifestation at every juncture. For instance, which person, from what caste is given the ticket from the party to contest elections is also something which we should closely look into. We want the state human rights commission here to be revived and the human rights groups in Himachal Pradesh should come together to spread aware- ness about the various human rights violations and the ways to fight and stand up against the same. While visiting districts of Mandi, Sirmour, Chamba, we saw that the colonial-feudal mindset still exists among the administration as well as the people of those districts. Earlier the reasons sought for hatred towards dalits used to be as petty as them dressing inappropriately. Now after they have started working in offices and dressing accordingly, they are being questioned as to why do they dress in that manner. Earlier, they used to attract ill feelings because of being illiterate and uneducated, and now the question being raised is why do they get jobs. The task for us is to link all of this together with rights and our Constitution and work towards safeguarding democracy and in this regard, the Himachal Pradesh State Human Rights Commission should be functional at the earliest.
488 SHRC: SOCIAL AUDIT REPORT–III Mr. Ratan Chand Social Activist
have been associated with the Panchayati Raj in Himachal Pradesh since the past 27 years and my area of work exists in the most backward regions of the state. I My dream was to take forward Mahatama Gandhi’s ideals of Gram Swaraj, but today I am myself unable to comprehend what Swaraj really means. In the tribal areas and forests, the most precious asset is harvests and yields and in my region itself, at least two to three murders have happened because of the disputes over harvests. The challenge then is to device a mechanism to fairly distribute the yields, for example that of oak trees in Himachal Pradesh. I met various officials from the administration and proposed the idea of distributing the yields from the oak for- ests, but was unable to obtain positive response. In 1990, we organised a meeting in our area and in that meeting we came out with recommendations for the government, one of them being that the ownership of forests and forest resources should be given to the people of the land. This was not accepted by the government and the copy of the recommendations was put down. After multiple attempts of trying to convince the authorities about the feasibility and usefulness of distributing the ownership of forests and being unsuccessful at that, I started the process at the Panchayati level and it was successful in terms of maintaining the balance between sustainability of the environ- ment and produce of yields. A couple of years later, a hydro power project was sanctioned by the government in the sanctuary area of Chamba, which would have adverse effects on its wildlife and greenery and also on the accessibility and availability of water for the people of the sur- rounding villages. I challenged this sanction by the government in the Zila Parishad. I got people of the villages and panchayats together to stand up against the looming injustice. It has been 11 years of struggle and building up the movement, but till date, not a word or plea has reached the government’s ear. In all the years of staying in Chamba, I have never seen so much agitation amongst the people and so many of them coming together to protest for a common cause. On January 14, 2010, when we were organising a peaceful meeting, some con- tractors gathered goons and sent them there, who started misbehaving and hooting in the course of the meeting. In a subsequent peaceful march against the construction of the dam and for defending our ‘jal-jungle-zameen’, we encountered stone-pelting from goons standing on the hills and some others armed with guns, pistols and rods started attacking us as we proceeded. The peaceful rally was hence violently disrupted and a lot of us were severely hurt and rushed to the hospital. On the following day, a
HIMACHAL PRADESH 489 bandh was observed in Chamba by all the political parties condemning the shameful incidents of violence. The additional district magistrate of Chamba formed a committee to investigate into the unfortunate incident of January 14, 2010 and the entire issue of the feasibility of the construction of the dam. The report of the committee stated that the project in Chamba was in fact ruining the forests and adversely affecting the accessibility of water, and was a threat to the sustainability of the environment. When a copy of the report was sent to the government, a show cause notice was served to the company and the case finally reached the high court. The high court ruling stated that the company may continue its work in the area while the people can continue to protest peacefully. This ruling being so contradictory in itself, we challenged it and appealed in the Supreme Court, but with no relief till date. There are people all over the country fighting for such legitimate concerns, but when their will to fight and stand up against atrocities is suppressed due to certain vested political interests of the elite and powerful, the entire movement for justice is weakened. I have expressed here my own lived experience with the movement to strengthen human rights in the state of Himachal Pradesh, and the only thing we can hope for is a truly independent, honest and functional human rights commission in the state.
490 SHRC: SOCIAL AUDIT REPORT–III
Chapter-III Jury Report
492 SHRC: SOCIAL AUDIT REPORT–III BACKGROUND
Human Rights Law Network, in collaboration with its partner organisations con- ducted an Independent People’s Tribunal (IPT) on September 28, 2013, at YMCA, Shimla, on the functioning of Himachal Pradesh State Human Rights Commission (HPSHRC). The aim of this exercise was to suggest measures towards streamlining and strengthening the HPSHRC to function more efficiently and effectively so that it can perform its statutory role as an effective mechanism of justice delivery. Human rights commissions (HRCs) were constituted and given the shape of stat- utory bodies in order to ensure quick and affordable justice to the poor and deprived classes of the society. Since the judicial processes in the country have become too costly and time consuming, it is almost impossible for the poor to secure timely justice at affordable costs. So, it was expected that HRCs will be able to remedy this situation with their prompt and equitable function. But in Himachal Pradesh, this does not seem to have happened. It is a matter of great concern that the SHRC in Himachal Pradesh has, for vari- ous reasons, not been functioning in the spirit and for the purpose for which this statutory body was constituted. The plight of pending cases before the HPSHRC, some of which were put up before the jury during the IPT proves beyond doubt that the HPSHRC is a crippled and defunct body, incapacitated by government neglect. Thus, an invitation was sent to the HPSHRC to attend the IPT to express their point of view about the functioning of the commission but nobody from the com- mission turned up as the commission has no members or chairperson currently. The secretary Mr. Bhanu Chirag Singh said that he doesn’t have the authority to come to represent the commission in any meeting without the chairperson permission/ap- proval and since there is no chairperson in the SHRC, he cannot come. The SHRC has been defunct for a long time, since 2005. A number of people who have gone with their complaints to the commission deposed before a jury panel comprising: • Mr. L. R. Sharma (Retd. District Judge) • Mr. Sukhdev Premi (Social Activist) • Mr. Kishori Lal Kondal (Social Activist) • Adv. Mahesh Sharma • Adv. Neeraj Kishore Sharma 14 cases of human rights violations were put up before the jury members. It was
HIMACHAL PRADESH 493 quite noticeable with the cases that were put before the jury panel that in the complaints the police have failed to perform its function properly. The cases put up before the jury in the IPT demonstrates that violation of human rights of dalits, women and other weaker sections of the society continue unabated. The case of land grabbing and atrocities on dalits by dominant and economically influential people shows that the SHRC in Himachal Pradesh has failed to perform its mandatory function. The commission is presently defunct as there are no members and chairperson and the government’s apathy and indifference has kept the commission from functioning again. As the majority of human rights violations cases coming to the commission are against the govern- ment itself, it is therefore quite obvious that the state government’s been keeping the commission in a defunct state so that the large number of human rights violations by state agencies do not come to light and the government is saved of embarrassment. It is, therefore, necessary that state human rights commissions be made functional first and then financially independent of the control of government.
OBSERVATIONS
• The majority of the cases pertained to allegations of mishandling of cases of human rights abuses by the police. • There were serious allegations of collusion of police authorities with the accused in several cases. • Impartiality of police authorities was questionable in many of the cases during investigation. • Glaring instances of lack of sensitivity on the part of the officials was quite visible while dealing with serious human rights violation cases. • Even in serious violation cases like murder, dalit atrocity, police inaction, police torture the apathetic attitude of the commission is quite baffling.
RECOMMENDATIONS
• The SHRC needs to be made functional and members and chairperson need to be appointed to the commission so that it can be made functional and it can fulfill its mandate. • A full time chairperson of the commission should not only be appointed, but its presence and working should be ensured. Currently there is no chairperson in the commission. • The commission should have its own independent agency with sufficient number of person- nel. • There should be a one-time review of all the cases pending before the commission for the past five years. • The commission should take active help from the civil society organisations and individuals working on issues related to the human rights, in order to sort out all the pending cases in a time bound programme. • It is a very important function of the commission to encourage CSOs working for the welfare of dalits, women, children and other weaker sections of the society. The commission should promote and facilitate the work of such organisations. • All cases of land grabbing of dalits, atrocities should be taken by the commission on priority. The commission should make public all the decisions taken by it and should also make its
494 SHRC: SOCIAL AUDIT REPORT–III presence felt through the media. • All cases of human rights violations reaching the commission either directly by the public or through various agencies including the NHRC should be duly given cognisance. Each case should be acknowledged in writing and a time period should be fixed for its disposal. • A representative of the commission should attend all public hearings, conference and seminar held by CSOs and other organisations for the conservation and protection of human rights. • The commission should put pressure on government departments to take appropriate action on the recommendations made by it. The recommendations of the commission cannot and should not be relegated to a waste paper basket. The commission should forcefully pursue its recommendations and bring any inaction by the government to light through print and electronic media. • One of the pretexts often extended by the state human rights commission for its inaction in matters concerning violation of human rights is that the matter has been referred to a court of law and therefore it is sub judice. The spirit of the law as enshrined in Section 12 (b) of PHRA 1993, gives the commission sufficient power to intervene in any proceeding involving any allegation of violation of human rights pending before the court, with the approval of such courts. It needs to be asked, in how many cases did they exercise this power, and the answer is zero. It is, therefore, essential that the commission, must, in all important cases, intervene in the matter and should not hesitate to approach courts to make its presence worthwhile. • Even if a complainant makes a representation or send the complaint copies to several admin- istrative, constitutional or statutory bodies, the SHRC should not wait for a query or a reply from any of such institutions to whom it is addressed. The SHRC should immediately take action on such issues raised if they fall within their jurisdiction. • The institutional mechanisms envisaged in the PHRA, 1993, should be created in the state of Himachal Pradesh; special attention should be paid to the creation of human rights courts in every district as so provided under section 30 of PHRA, 1993. • The state human rights commission must take all such cases promptly and seriously in which there are complaints against state agencies, such as police or administrative department, for harassing witnesses or framing false cases against persons fighting for the conservation and protection of human rights. • In all such cases in which the police and prosecution does not invoke the provisions of special Acts such as the SC/ST (Prevention of Atrocities) Act or the Juvenile Justice Act etc., and end up putting a chargesheet only under substantive laws, the SHRC should intervene in the courts, requesting the judiciary to take cognisance of the matter under specific laws too. • The SHRC should particularly be very vigilant about the conservation of human rights in all custodial and other institutions like prison, juvenile justice homes and protective homes for women and such institutions like those meant for persons with disabilities etc. One of the most effective methods of ensuring this will be an unplanned, sudden and surprise visits of these institutions by the members of the commission to see that human rights are not being violated and that proper facilities are provided, and accordingly make recommendations for improving the situation of these institutions. • Human rights commission should be appointed in every state, and NHRC should persuade the respective state governments, who have not appointed a SHRC so far, to do so. • The members of the human rights commission should be appointed strictly as per procedure
HIMACHAL PRADESH 495 given in the Act. Apart from the chief justice of a high court who shall be the chairperson, a judge of a high court or a district judge of the same state, and one other member should be appointed from amongst persons having knowledge of or experience in matters relating to human rights - as per Section 21 (2) of the Act. As far as possible, police officers should not be appointed as members. The chairperson and members of the commission should be sent for training, with a view to sensitise them and how to best implement the PHRA, 1993, for protecting human rights and giving relief to the victims, and also for punishing the perpetra- tors. Vacancy in the commission, if any, should be filled up immediately. The person who has been appointed should be available and willing to work with the commission immediately. • All the respective officers i.e. secretary, IGP, and other staffs and investigating agency of the commission should be appointed along with the commission, itself, as required by Section 27 of PHRA, 1993. • The state government should provide sufficient budget for the commission to utilise its serv- ices properly for fulfilling the purposes of the Act, as required by Section 33 of the PHRA, 1993. • The commission should regularly prepare and submit annual reports to the state government, or special reports in particular matters. Also, the state government shall cause the annual and special reports of the state commission, to be laid before state legislature, along with a memo- randum of action taken, or proposed to be taken on recommendation of the state commission, and the reasons for the non-acceptance of the recommendations, if any, as provided by Section 28 of PHRA, 1993. • In case the state government does not carry on the instructions or directions given by the state commissions, the commission should not hesitate in approaching the state high court, for causing writ of mandamus against the government to carry on the directions. • The state commission should spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of the rights through publications, media, seminars etc as envisaged in Section 12 of the Act. • In case the complaint is against the police, the commission should get a reply thereon, but should not just rely on the police report only and close the case. Instead, it should utilise its own investigating agency to verify the original case. • For the purpose of providing speedy trial, of offences arising out of violation of human rights, the state governments, with the confidence of the chief justice of high court, should specify every district and session/fast track court to be human rights court, to file the said offences, and also specify a public prosecutor or appoint an advocate as a special public prosecutor, for the purposes of conducting cases in that court, as so enshrined in Section 31 and Chapter 6 of the Act.
CONCLUSION
The Commission is currently dysfunctional and the government should make immediate attempts to make it functional. Since the state is experiencing myriad incidences of human rights violations, the commission needs to be made much more effective as a protective institution of human rights. The recommendations were put forward with an aim to streamline and strengthen the commission. The commission should be made independent from the state government to function effectively. The HP-
496 SHRC: SOCIAL AUDIT REPORT–III SHRC needs to have its own independent investigative wing to impartially investigate all cases of police atrocities. Also, the commission should be equipped with sufficient resources to hire adequate staff in order to ensure that all cases are dealt with in a timely and fair manner. The commission should organise seminars and workshops on human rights issues in cooperation and collaboration with civil society groups and other organisations working in the field of human rights, to make individuals aware of their rights, which will consequently empower them to stand up for their rights and therefore making them less vulnerable to human rights violations. Hopefully, these suggestions will help strengthen the HPSHRC as an institution of safeguarding human rights, to function effectively and efficiently to address the matters of violations.
HIMACHAL PRADESH 497
CONCLUSION
s the social audit report reveals, the human rights com- missions in Jammu & Kashmir, Gujarat, Tamil Nadu, Bihar, Maharashtra and Himachal Pradesh are not functioning the way they were envisioned. Though much of this is due to a weak Protection of Human Rights Act, the lack of political will and a clearly absent zeal to pro- Amote and protect human rights are also contributing towards the failure of the SHRCs. The comprehensive analysis of all the dimen- sions driving the functioning of the SHRCs and the testimonies of the victims who have engaged with these institutions are a clear reflection on the current state of affairs. While one might argue that the representation of just a few people and their tales of injustice are not sufficient to ascertain the functioning of a constitutional body, it has to be noted that the background research has looked into all the other aspects related to the functioning of the SHRCs. Reports by retired high court judges, leading academicians and eminent members of civil society are clearly indicative of a desire for amend- ments in the PHRA and for the smooth and effective functioning of the SHRCs.
To conclude this volume, it is pertinent to highlight major findings coming out of this social audit comprising background research, Independent People’s Tribunals and jury reports. The findings are not confined to six states only as the research and analysis establish a clear pattern that can be applied to assess the functioning of the other SHRCs in other states and the NHRC at the centre.
CONCLUSION 499 COMPOSITION AND APPOINTMENTS
The composition of a SHRC and the appointment process followed to select members is the key indi- cator that determines its effective functioning. The appointment process should be more transparent and democratic and needs to include the representation of a wider civil society. At present, although the appointments are being done by a group of parliamentarians and assembly members, we shouldn’t forget that at the end of the day a majority of them are members of the ruling political party. Even the inclusion of a few members from the opposition party is not going to change things, as they are in the minority even in the appointment committee. The appointment should be made through an open announcement, asking for nominations from civil society, as recommended by experts. It should be validated by a special committee comprising both executive and civil society having equal power. People who form part of the appointment committee should also have a proven record of and experience on human rights issues. There is a need to restructure the composition of the commission members. Though there is no denying that the representation of retired judiciary members adds value to the commissions, it has to be noted that the appointment of recently retired judges has always served the purpose of the State. There- fore, the retired members of the judiciary may be appointed only after a minimum of two years after they have finished serving the courts. This will help in upholding the independence of the commissions and in keeping any favouritism at bay. As observed in the appointments pertaining to members of the commissions, they are mostly from the judiciary, bureaucracy and police. Many of them lack any practical knowledge and experience of hu- man rights. There is a need for human rights activists to be part of the commissions. This will not only make the commissions more sensitive and responsive, but also their diverse experience and expertise in the arena of human rights will make the commissions more accessible to the people. One of the prime factors missing in the appointments in all the state commissions is the representa- tion of members from the marginalised communities. Most of the victims/complainants that deposed in front of various juries in all six states are poor and from marginalised groups -- dalits, tribals, women and members of minority communities. The representation of members from these communities in the commission will make it more sensitive towards the distinct problems faced by the victims/complain- ants who approach the commissions in the hope of getting justice. The commissions, in many instances, as repeatedly observed throughout the IPTs, lack sensitivity and empathy with and towards these mem- bers of society. These are progressive suggestions that should be incorporated into the PHRA.
ACCESSIBILITY
The commissions are located in the state capitals. They are highly inaccessible for common people. Though the cost of petitioning the commissions is not much, apart from printing and copying, the travel and postage costs incurred are high. For a poor person from a far-off district, approaching the commission incurs a lot of travel costs, and is time-consuming, which also makes the complainant lose out on several days’ earnings. Many of them get discouraged after sometime and this has been very evident in the various oral and written depositions presented during the IPTs. The commissions need to move out of the sphere of the state capitals, and they need to be present, at the very least, in each district in the state. This could be done through appointing district officers with specific powers, who in turn are approachable to the people. Local NGOs and CSOs need to be
500 SHRC: SOCIAL AUDIT REPORT–III capacitated to further the reach of the commissions. The commissions are not currently working closely with these people, and their functioning is suffering as a result. Moving out from the state capitals will not only make the commissions more accessible for people and ensure faster remedies, but it will also increase visibility and trust among them. On the issue of accessibility, it is important to mention that none of the six commissions discussed in this volume are disabled friendly. It is impossible for a person of disablity to walk through the doors of the commissions and represent himself/herself. Another point that came up during the discussion with several civil society members pertains to the location of the commissions in the state capitals. In all the states, the commissions are located either in the state secretariat or in some government office. This makes it difficult for the victims/complainants to approach them. It makes the commissions seem like any other government body, an uphill task for the victims struggling their way through an authoritative bureaucracy. Commissions should be located in approachable areas having independent space and infrastructure, with minimum facilities available like counseling, shelter etc.
INVESTIGATION
Investigation remains one of the major flaws in the functioning of the commissions. It is one of the prime reasons for the poor complaint handling mechanism. As observed, the commissions have repeat- edly asked the same department, more often the police which is accused of the violation, to investigate the matter. In almost all the instances, the response of the concerned department to the violation amounts to a vehement denial, that no violation ever took place. And the commissions appear to be too willing to believe their response and dispose of the matter. Even matters of custodial deaths and police torture are treated in the same way. It has also been made clear that the commissions often have to give several reminders to the concerned department to furnish the report, and the complainant is treated according to the whims and fancies of the commissions. Commissions don’t have their own investigation wings. Even if they have, they seriously lack manpower, other resources and willingness. Ironically, the commissions which have been established to protect and promote human rights have the investigation wing made up of the police, who in most cases are accused of the violations. Not all human rights violations are of a criminal nature and even those which are can be investigated without the police. Human rights violations can be investigated by any eminent persons, outside police, or others who have a profound knowledge and experience in the field of human rights. Such investigations can be comprehensively conducted by a team of human rights activists, doctors, academicians, psychiatrists etc. More importantly, the human rights investigation team should be present at district levels. This will considerably increase the pace of complaint disposal and local presence, with a set of diverse members who will raise the quality of the commissions’ functioning too. Investigation should also include the testimonies of the victims/complainants, rather than just depending on one side of the story, and only later asking for comments from the victims which are seldom considered seriously. In matters of grave human rights violations, the members of the commission should investigate the matter themselves along with the investigation wing. Regular and surprise visits to police stations, jails and child protection homes will help in improving the human rights situation. It is also important to have a diverse set of members on board for the investigation, which should include women, dalits, tribals etc., pertaining to the nature of the human rights violation in question. Investigation remains the
CONCLUSION 501 most crucial link for obtaining justice and indeed it is important to ensure that it is impartial, factious and correct. Proper investigation will diminish the arrogance of the violators and the impunity with which they are currently able to act.
INFORMATION
Seldom have the victims/complainants received communication or information from the commissions concerning their cases, as reflected in these reports. Most of the victims/complainants don’t know about the status of their complaint. It is revealed to them only after they make several visits to the commis- sions, more often from far off places. A mechanism needs to be developed whereby the victims/com- plainants can access information readily and easily. It can be either visiting the district office or checking for this information online. In reality, checking online about the status of the complaint is not a viable solution for all those who approach the commission, and in such cases the district office can bridge this gap. This will also ensure the safety of the victims/complainants, as in many instances people have suf- fered harassment after filing a complaint. Obtaining information about the commissions and their functioning has been the most challenging part of this exercise that has culminated in this report. It is evident from the social audit that commis- sions seldom furnish information in the public domain. Despite the fact that they are human rights institutions, it is very hard to get information on their functioning. A number of RTIs had to be filed in order to access annual reports in most states. There is very little available in terms of functioning and the progress with complaints that will help anyone who approaches the commissions to take stock of things, even for academic or media purposes. Most of the commissions do not even publish annual reports. Even if they do, these can’t be cir- culated among the public till tabled on the floor of the state assembly. The state is supposed to furnish its compliance and action taken report, an obligation which is not adhered to. Even those state reports which do come out now and then, are mostly in English and therefore inaccessible to the common people. Annual reports don’t mention the details of all the cases dealt with by the commissions, and it remains unclear whether recommendations have been complied with by the concerned authorities. None of the commissions have an updated website providing the necessary information. Most of the commissions’ websites are dysfunctional, and contain merely the name of the office bearers and the PHRA. A complaint can’t be tracked online, nor can the annual report be accessed. For the states which have functional websites, updated information can’t be obtained, and the information that is available is mostly in English. Though not perfect, the NHRC website can be sort of a model for SHRCs to develop websites. The commissions have denied applicants information on many grounds, even when applied for through the RTI. One of the main reasons mentioned was the volume of the information, and the commission asked for a huge surety of money to be paid for photocopying the papers. Information has also been denied on the grounds that the name of the information-seeker is not mentioned in the complaint, even when the status of the complaint was asked for. The commissions appear to be operat- ing in a closed and somewhat clandestine manner, and are not willing to share much information with civil society, media, and researchers.
502 SHRC: SOCIAL AUDIT REPORT–III EDUCATION
One of the mandates of the commissions is to engage in human rights education and trainings. Howev- er, the commissions have seldom shown a sense of willingness towards this. It was surprising to observe that in many instances even the human rights activists and lawyers were not aware of the locations and even the existence of the commissions in the states. The commissions need to network with local NGOs and CSOs, and hold various awareness and educational programmes. Such activities and networking has been initiated in the state of Rajasthan by the human rights commission there. There should be an adequate fund reserved to undertake such activities. As part of fostering a culture sensitive to rights, students should be encouraged to intern with these bodies. Human rights education should not be restricted to common people only. Police, security forces and different government departments should also be included in the human rights trainings that need to be imparted. A model needs to be evolved in order to inform people about rights through training programmes.
POWERS
Though the PHRA is not a perfect law from human rights perspective in the Indian context, there is still enough in the law that remains non-implemented. Commissions are not completely toothless, as generally described by many civil society groups and activists. They have been enshrined with certain powers which they don’t exercise. The commissions, despite several provisions lacking and desired, can ensure that some sort of justice is delivered and adhered to by the State, if the commission members have the political will. The commissions have the power to take suo moto cognisance of certain instances of human rights violations and take adequate actions. Seldom have the commissions taken suo moto cognisance, if recent years are any indication to go by. Despite grave human rights violations like encounter killings and custodial deaths, tortures and enforced disappearances, the commissions have by and large been a mere spectator. Even if suo moto cognisance was taken, in most cases such exercise has proved to be a mere eye wash. The commissions have the power to move the courts when their orders are not complied with. However, the commissions have not used this power in most instances. It has been very rare that the commissions have dared to go against the State. Even though they have the power to enquire into sub- judice matters with the permission of the court, the commissions seldom exercise this power, and most complaints of this nature just get disposed of as matters sub-judice. Although the commissions have no jurisdiction over the central security forces, apart from the NHRC which has, the commissions should assist the courts and take matters up with the concerned authorities where allegations of killings and torture by security forces are rampant. The PHRA should give the powers to the commissions to investigate matters of human rights violations by the security forces and to move courts if these allegations are confirmed. The PHRA clearly provides for the establishment of human rights courts in all districts. A sessions court in each district has been notified, in most cases, to function as human rights court. However, this is an exercise which remains only on paper and human rights courts are yet to see the light of the day. The commissions should ensure that the state governments make sure that the human rights courts are operational and effective. A mechanism needs to be established to ensure that the commissions and the
CONCLUSION 503 human rights courts are functional and aid each other. Thus, this volume is an attempt to analyse the functioning of the state human rights commissions in India with a view to strengthen the mechanisms in the law towards protection and promotion of human rights. The idea is not to flay the human rights institutions, but to look at the provisions in the law and the practices on the ground critically. It is also to ensure that civil society groups and people in general that have a cynical view of these institutions, try to engage and work in close coordination with commissions. It is hoped that the findings of this exercise will help in bringing about progres- sive changes in these institutions, in the law, and in the attitudes of members of these commissions in particular, and civil society and people in general, thus strengthening us as a peace loving people, a just society and a vibrant democracy that is often cited as the largest in the world.
504 SHRC: SOCIAL AUDIT REPORT–III