Refugee Review Tribunal AUSTRALIA

RRT RESEARCH RESPONSE

Research Response Number: IND34701 Country: Date: 1 May 2009

Keywords: India – – Marad Beach – BJP / RSS – freedom of speech – state protection – relocation

This response was prepared by the Research & Information Services Section of the Refugee Review Tribunal (RRT) after researching publicly accessible information currently available to the RRT within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. This research response may not, under any circumstance, be cited in a decision or any other document. Anyone wishing to use this information may only cite the primary source material contained herein.

Questions 1. Are there any reports to indicate that Hindu nationalist groups have targeted any persons for writing, or speaking out about, the Marad Beach affair? 2. How effective is the Kerala police force in terms of providing effective protection to Kerala Muslims who are threatened by ? Is there any information available on the security situation in Kottakkal in particular? 3. What kind of information is required by police in order to take action where a person claims to have been assaulted/threatened? 4. With regard to the possibility of relocation, please identify other areas of relative safety where significant Muslim communities reside.

Background to the Marad Beach violence

In January 2002 five members of a Muslim fishing community in the Kerala locale of Marad Beach, District, were killed by members of a neighbouring Hindu fishing community. In May 2003 eight members of the Hindu Marad Beach fishing community, and one member of the Muslim community, were killed in a clash which appeared to be a retaliatory attack for the violence of the preceding year. Numerous arrests followed as did a high volume of press coverage on the affair. Reports appeared which claimed that the Hindu men killed in the May 2003 clash were members of the Hindu nationalist Rashtriya Swayamsewak Sangh (RSS) and that Muslims arrested in connection with the clash were members of the Indian Union Muslim League (IUML). There were also claims that some of those arrested in connection with the violence were members of the Communist Party of India–Marxist (CPI-M) (at that time the CPI-M was the leading opposition party in Kerala state politics). Spokespersons for all these various political groups made competing claims about the involvement of others in the violence. The RSS, and its affiliated (BJP), claimed that the 2003 Marad Beach violence was the work of a Muslim fundamentalist conspiracy on the part of the IUML and the National Development Fund (NDF). The CPI-M also alleged the fault of the IUML (at that time the IUML were part of the Congress-led ruling coalition in Kerala) and the NDF. The IUML and NDF denied these claims and alleged that the BJP and RSS were attempting to use the Marad affair to fuel Hindu nationalist extremism and that the CPI-M was seeking to provoke violence against the IUML and NDF networks (for articles reporting the political affiliations of those allegedly involved in the violence as well as the competing claims of the various groups, see: „Marad – more arrested‟ 2003, The Hindu, 11 May – Attachment 1; „RSS-Kerala‟ 2003, Press Trust of India Limited, 9 May – Attachment 2; Radhakrishnan, M.G. 2003, „Blood on the Beach‟, India Today, 19 May http://www.indiatoday.com/itoday/20030519/states.shtml – Accessed 1 May 2009 – Attachment 3; „RSS blames it on Muslim terrorists‟ 2003, The Hindu, 5 May http://www.hinduonnet.com/2003/05/05/stories/2003050502760400.htm – Accessed 1 May 2009 – Attachment 4; „League behind Kerala killings – BJP‟ 2003, The Hindu, 6 May – Attachment 5; „ planning violence: NDF‟ 2003, The Hindu, 4 May http://www.hinduonnet.com/thehindu/2003/05/04/stories/2003050404070400.htm – Accessed 1 May 2009 – Attachment 6; „NDF behind massacre: Pinarayi‟ 2003, The Hindu, 5 May http://www.hinduonnet.com/2003/05/05/stories/2003050502780400.htm – Accessed 1 May 2009 – Attachment 7; „CPI(M) bid to unleash violence: NDF‟ 2003, The Hindu, 9 May http://www.hindu.com/thehindu/2003/05/09/stories/2003050904550400.htm – Accessed 1 May 2009 – Attachment 8; „Violence-BJP‟ 2003, Press Trust of India, 3 May – Attachment 9; „Judicial probe into Marad killings‟ 2003, The Hindu, 8 May http://www.hinduonnet.com/2003/05/08/stories/2003050804450700.htm – Accessed 1 May 2009 – Attachment 10; „Violence-NDF‟ 2003, Press Trust of India, 16 May – Attachment 11; „Police failed to anticipate it: Kunhalikutty‟ 2003, The Hindu, 4 May http://www.hinduonnet.com/2003/05/04/stories/2003050404030400.htm – Accessed 1 May 2009 – Attachment 12).

In August 2003 the Kerala state government, at that time led by the party‟s A.K. Antony, responded to the controversy by commissioning and Sessions Court Judge Thomas P. Joseph to conduct an inquiry into the affair. An October 2006 article by Frontline‟s Kerala correspondent, R. Krishnakumar, provides the following overview of the findings of the Commission‟s subsequent report (the report itself is 78 pages in length and supplied as Attachment 14).

THE whole truth behind the revenge killings at the coastal village of Marad in Kozhikode district, the worst communal incident in the recent history in Kerala, is unlikely to be revealed soon, if at all.

More than three years after fundamentalist assailants hacked to death eight Hindu fishermen (and a Muslim fellow attacker by mistake) there on May 3, 2003, the report of a judicial commission of inquiry has concluded, among other things, that the incident was a sequel to the largely politically motivated murder of five persons in the village in January 2002 and a fallout of the then Congress-led United Democratic Front (UDF) government‟s “unjustified delay” in the prosecution of those accused of the crime. According to the Justice Thomas P. Joseph Commission report, of the 393 persons against whom charge-sheets were filed in 115 cases relating to the January 2002 incident, 213 were activists of the Rashtriya Swayamsewak Sangh (RSS)/Bharatiya Janata Party (BJP), 86 were of the Muslim League and 78 of the Communist Party of India (Marxist). The rest were members of the Indian National League and the National Democratic Front (NDF), the post- 1993 Muslim fundamentalist organisation which claims to have its members in all major political parties.

The UDF, especially the Muslim League, had forged an alliance with the RSS-BJP at that time to try and checkmate the dominant influence of the CPI(M) in the coastal regions of Kozhikode district.

Much to the discomfiture of major political parties in the State, the commission, which was set up to inquire into the circumstances that led to the second Marad killings, has in a way, turned the spotlight on the facts and circumstances of the 2002 killings.

The report emphasises what political Kerala already knew well but has tried to ignore: that the January 2002 incident was the result of “political interests and other vested interests” that developed following a minor altercation between two men belonging to the different communities, which flared up into a major communal incident resulting in the death of five people, injury to several others and damage to several houses.

It says that the delay in filing charge-sheets in that case was subsequently utilised by “Muslim fundamentalists, terrorists and other forces” to capitalise on the grievance of relatives of three Muslims killed and to use it as a cause for vengeance against Hindus of Marad as a whole. It also says that the inquiry by the State Crime Branch CID (CBCID) into the May 2003 incident had failed to unravel the “larger conspiracy” and the sources of the large cache of arms and ammunition unearthed subsequently in the area and of the sizable funds used in the planning and execution of the murders.

The commission‟s main recommendation, therefore, is a further inquiry, involving the Intelligence Bureau (I.B), the Central Bureau of Investigation (CBI) and the Directorate of Revenue Intelligence, into the “larger conspiracy” involving fundamentalist and other forces, and into the source of the explosives and funds that the CBCID “failed or refused” to investigate – an act that the commission described as “quite suspicious and disturbing”.

The report is also critical of the role of the civil administration, the State police and the Crime Branch. It says that despite clear evidence that there was a “long-drawn conspiracy” and that the objective of the assailants was not merely to kill certain persons but “to create bigger havoc and ignite large-scale riot”, the CBCID team stuck to its simple theory of revenge killings. The question as to whether other forces were involved in the massacre “was not even an issue for the Crime Branch team”, the report says.

The civil administration continued to be lethargic, failing to take timely, preventive and remedial action after the 2002 incident even though intelligence reports had indicated that there was the possibility of violence again at Marad and that stockpiling of weapons by both sides was taking place, mostly in Muslim-dominated areas. The commission found evidence of detailed intelligence reports suggesting that efforts of government-initiated peace committees were not yielding the desired results, that fundamentalist elements were active in the area and that the people feared an imminent bout of communal revenge attacks.

It was also known that the original plan for an attack one month before May 3, 2003 was dropped as the news had leaked and that the stockpiling of weapons had started three months after the first incident. There were also clear intelligence warnings about a “wordy altercation” between two groups in the Muslim community inside the compound of the local mosque regarding “retaliation for the killing of Muslims in 2002”.

…Although such information was available, the commission says, there was only a token presence of the police on Marad beach on the day of the massacre and several days before that. There were only 13 policemen on duty at Marad, in a total of nine pickets on the beach, and there was not a single gun at the Marad police control room or picket posts. There were a few teargas shells and lathis and “even that the policemen could not effectively use as they did not have the mental make-up to do that in a charged situation”.

The commission holds three key officials responsible for this situation – the then District Collector K.O. Sooraj, the then Commissioner of Police Sanjeev Kumar Patjoshi and the then Assistant Commissioner M. Abdul Rahim. The last has been criticised severely for the way he tried to shield one of the prime accused in the case. The report says that Sooraj did not discharge his functions responsibly and effectively, in the way expected of a District Collector and District Magistrate and was responsible for the failure of the civil administration to take timely remedial action to prevent the recurrence of violence at the Marad beach. It asks the government to inquire into the widespread allegation of communal bias made against Sooraj “that cannot be ignored as baseless” and “could have had a bearing on the failure of the civil administration”, including his action of allowing Muslim League leader (at present Minister of State for External Affairs) E. Ahmed to enter the controversial mosque on Marad beach defying prohibitory orders when the communal tension was high immediately after the massacre. It says that the lack of rapport between Sooraj and Sanjeev Kumar Patjoshi contributed to the lack of coordination between civil and police administrations, which ultimately affected “the effectiveness of the actions that had to be taken by both the departments in the riot-prone area”.

The police too, under Patjoshi, failed to take effective steps to prevent the 2003 massacre and treated the specific intelligence warnings casually. There was lack of coherence, trust and coordinated action between the various branches of the police, the report says.

….The commission says that the facts behind the mysterious appointment of Rahim at the Kozhikode (South) subdivision, which includes the communally sensitive Marad, could have “dissuaded the [then] government from ordering the CBI investigation”. It says there was the need for a “deeper probe” into “who was interested in his posting” and “what the interest behind it was”.

…The commission found that several activists of the Muslim League and the NDF “were actively involved in the planning and execution of the [second] massacre” and that it was unlikely that their activists were involved thus “without the blessings of their respective leaderships, at least at the local level”. It says it did not come across any direct evidence on whether the “NDF as an organisation was behind the massacre” but points out that it is difficult to get such direct evidence for the involvement of the (secretive) organisation, even though it did find that some of the local leaders of the NDF were indeed involved.

…It is quite unlikely that such a large number of Muslim League workers, including a few local leaders, were involved in the conspiracy without the blessings of their leadership at least at the local level. That is the reason for Muslim League general secretary and the then Industries Minister P.K. Kunhalikkutty opposing a CBI investigation and expressing his own apprehension that if such an investigation was allowed when the BJP was in power at the Centre, there was no guarantee that all Muslim League leaders, including himself, or his party leader Panakkad Shihab Thangal would not be put behind bars. The report, however, says that there is no evidence to substantiate allegations that Kunhalikkutty was in any way connected with the May 2003 massacre. (Mayin Haji was given the UDF ticket – and lost – in the May 2006 Assembly elections, significantly, when the commission report was already with the UDF government.)

But Kunhalikkutty told the commission that neither he nor his party had stated that a CBI investigation was not required, but that “it was the Cabinet” that decided that a CBI investigation was not necessary in view of the legal opinion given by the then Advocate- General.

Antony too had said that the advice of the Advocate-General was that since the CBCID, Kozhikode unit had already investigated the matter and filed charge-sheets in the case, it was not permissible under law to entrust the investigation to another agency. Antony as Chief Minister had also said in reply to specific questions that the government did not order a CBI investigation at the initial stage since, following the Muthanga incident (and police action against tribal people there in which one tribal person and a policeman were killed) into which the government had ordered a CBI investigation, there was a clamour for a judicial inquiry. Hence, “to avoid such a demand”, a judicial commission was appointed “to inquire into all aspects of the massacre investing the commission with wide powers”.

The commission has come to the conclusion that this was only a “lame excuse” and drawn attention to the report of one of the officers of the State Special Branch that “a person nicknamed `FM‟ (finance minister) who came to Kozhikode from the Gulf countries on May 2, 2003 was the source of the money behind the massacre”, that two Cabinet Ministers of the State had “unimaginable connection” with the “FM” and that the government might be in trouble if the CBI investigated the case at a time when the BJP was in power at the Centre.

…The Justice Thomas P. Joseph Commission of Inquiry, appointed on August 23, 2003 (soon after the CBCID completed its inquiry and filed charge-sheets against 115 people involved in Marad II) submitted its report on February 20, 2006 to the UDF government. But, perhaps because of the remarks against it, and importantly against the Muslim League, a prominent constituent of the government, the UDF administration did not table the report in the Assembly, especially as Assembly elections were only a few months away.

The new Left Democratic Front (LDF) government submitted the report on September 27 in the Assembly along with a note on the action taken on it and announced that, among other things, it had requested the Centre to conduct a CBI inquiry as suggested by the commission.

The terms of reference of the CBI inquiry were yet to be formulated at the time of writing this report but the trial of those charge-sheeted by the CBCID in the case is nearing completion in a special court, with the judgment expected by January 2007.

Home Minister Kodiyeri Balakrishnan said that the government will ask the CBI to conduct the inquiry “in a manner that does not affect the ongoing trial”. But, given the commission‟s findings, the new inquiry is unlikely to find the UDF in a favourable light. The counter demand for inclusion of the facts and circumstances of the 2002 incident in the terms of reference of the CBI inquiry is meant to rattle the ruling CPI(M) (Krishnakumar, R. 2006, „Marad shocks‟ 2006, Frontline, 7-20 October, vol.23: no.20 http://www.hinduonnet.com/fline/fl2320/stories/20061020003810600.htm – Accessed 1 May 2009 – Attachment 13; for the Commission‟s entire 78 page report, see: Thomas P. Joseph Commission of Inquiry 2006, That‟s Malayalam News http://thatsmalayalam.oneindia.in/archives/marad-report-part-I.pdf – Accessed 1 May 2009 – Attachment 14).

The Marad Beach affair has remained a topic of national interest and has been the subject of opinion pieces which have expressed concern about the spread of communal politics, and the Hindu nationalist movement in particular, into Kerala state (which is generally regard as an otherwise peaceful area where Hindu nationalist groups like the BJP have had little electoral success) (for articles expressing concern that the influence of communalism and/or might be spreading to Kerala, see: Panikkar, K.N. 2003, „Communalising Kerala‟, The Hindu, 13 May http://www.thehindujobs.com/thehindu/2003/05/13/stories/2003051301111000.htm – Accessed 27 June 2007 – Attachment 17; Krishnakumar, R. 2004, „The spread in the South‟, Frontline, Vol 21: Issue 06, March 13 – March 26 http://www.frontlineonnet.com/fl2106/stories/20040326004900900.htm – Accessed 6 January 2005 – Attachment 18).

Frontline‟s R. Krishnakumar has recently provided the following overview of the outcome of the Marad trials which concluded at the end of 2008:

MARAD appears peaceful today, nearly six years after a group of revenge killers hacked to death eight Hindu fishermen (and a Muslim fellow attacker by mistake) there, in what turned out to be the worst communal incident in recent memory in Kerala.

Maybe, time is a healer. But it is more or less certain now that the circumstances that led to the 2003 killings will continue to remain a volatile mystery, with a short fuse.

On January 15, the special court constituted for the trial in the Marad case awarded rigorous life imprisonment and a fine of Rs.25,000 each to 62 of the 139 against whom charge-sheets were filed. On December 27, 2008, the court had found 63 of them guilty of various crimes and had acquitted the rest.

Twenty four of the 62 found guilty of the charges of murder, attempt to murder, promoting enmity on grounds of religion, unlawful assembly, rioting with deadly weapons, causing hurt or grievous hurt with dangerous weapons, among other crimes under the Indian Penal Code, were close relatives. One of the accused, the manager of a local mosque, was found guilty under the law seeking to prevent the misuse of religious institutions.

The court said the evidence proved that the eight Hindu fishermen were attacked with lethal weapons and that the prosecution could establish beyond doubt that there was an unlawful assembly of the 62 people with the common objective of committing murder, grievous hurt and other allied offences.

The court found that Asker Ali, the ninth victim in the incident, was also a member of the group of assailants. However, the prosecution could not prove its charges that there was a criminal conspiracy behind the killings or that the accused had committed offences under the Explosives Substances Act or the Arms Act. The verdict was based on the evidence presented before it after an inquiry by the Crime Branch of the State police.

But, a judicial commission of inquiry appointed in the aftermath of the incident had found that, among other things, the incident was a sequel to the largely politically-motivated murder of five others in the village earlier in January 2002 and a fallout of the then Congress-led United Democratic Front (UDF) government‟s “unjustified delay” in the prosecution of those accused of that crime ( Frontline, October 20, 2006).

COMMISSION‟S OBSERVATION

The commission had said that the delay in filing charge-sheets in the January 2002 incident at Marad was utilised by “Muslim fundamentalists, terrorists and other forces” to capitalise on the grievances of relatives of three Muslims killed and to use it as a cause for vengeance against Hindus of Marad as a whole.

It had also said that the inquiry into the May 2003 incident by the Crime Branch had failed to unravel the “larger conspiracy” and the source of the large cache of arms and ammunitions unearthed subsequently in the area and of the sizeable funds used in the planning and execution of the murders.

The judicial commission had also been critical of the role of the civil administration, the State police and the Crime Branch and had said that despite clear evidence that there was a “long- drawn conspiracy” and that the objective of the assailants was not merely to kill certain persons but “to create bigger havoc and ignite large-scale riot”, the Crime Branch team had stuck to its simple theory of revenge killings.

The question as to whether other forces were involved in the massacre was not even an issue for the Crime Branch team, it said.

Much to the discomfiture of all major political parties in the State, the judicial commission that was constituted to inquire into the circumstances that led to the second Marad incident of May 2003, had thus drawn attention on the facts and circumstances of the 2002 incident too, in which, activists of the Rashtriya Swayamsewak Sangh (RSS)/the Bharatiya Janata Party (BJP), the Muslim League, the Communist Party of India (Marxist), the Indian National League and the National Development Front, were among the accused (Frontline, November 7, 2003) that had led all the Muslim families there to flee their homes not so long ago, Kerala can find solace in the verdict of the special court and the sentencing of 63 persons alone and believe all will be well (Krishnakumar, R. 2009, „Verdict on Marad violence‟, Frontline, vol.26: no.3, 31 January / 13 February http://www.hinduonnet.com/fline/fl2603/stories/20090213260310400.htm – Accessed 2 April 2009 – Attachment 15).

It may also be of interest that while Kerala police have been criticised for failing to preemptively prevent the Marad violence, and while there have been criticisms of the conduct of the Kerala investigations, there have also been reports which praise the efforts of the Kerala police in restoring peace to Marad Beach in subsequent years. The following report appeared in The Indian Express in January 2009 following the conclusion of the Marad trials.

Last week, as 76 persons accused in the 2002 carnage at Marad were acquitted by the court, not even a feeble voice of scorn or protest was heard in the coastal village. All thanks to the local police, who have been working to restore amity and bring peace to this communally sensitive pocket in Kerala, where flare-ups between Hindus and Muslims have claimed 14 lives since 2002.

Here, law and order is only one of the things the police hold themselves responsible for. Police involvement in infrastructure development, healthcare, personality development and social life has helped the people of Marad forget past tensions.

The unique initiative, launched by the local police eight months ago, has given a facelift to the trouble-torn coast. “Our first priority was to provide basic infrastructure to the families. We got in touch with various government departments to get power, water and roads for the entire village. Our involvement in basic day-to-day issues has helped us win the love and confidence of both communities,‟‟ says Marad police sub-inspector A. Umesh.

As part of the community intervention initiative, the police identified 3,000 families in the most sensitive regions and divided them into 30 groups of 100 families each. Members of each group meet regularly at the Marad police station to discuss their needs. Local political and community leaders were also taken into confidence in this mission.

Marad has been divided into nine blocks, each one managed by a three-member police team. The teams go on regular house visits to keep a tab on potential trouble. They look into issues among neighbours and try to solve them on the spot. The unsettled issues are taken up as complaints at the local police station.

Day-to-day involvement in village life has helped the police nip communal troubles in the bud. “We never talk about communal harmony with the villagers. Instead, our focus has been on ensuring the overall development of the coast. Once people know their basic needs are being met, many issues that could potentially threaten peace can be solved,‟‟ says Umesh.

The police organised leadership training camps for the children of fishermen at a government- run management training institute in Kozhikode, bringing children of Hindu and Muslim families together for the first time after the second Marad massacre of 2003. Medical camps are held every Sunday, with members of both communities in attendance. Such camps and events are financially supported by voluntary organisations in Kozhikode. Recently, the villagers have begun to chip in the Sunday clinics.

The police intervention has changed life in Marad. “Hooch brewing has been rampant and many villagers were drug addicts. Earlier, the police used to threaten the brewers and distributors in vain. But, after they started convincing the brewers about the ill-effects of their actions, the business has almost vanished,” says K.V. Musthafa, a headload worker at Marad.

C Sunil Kumar, a local school teacher, says that for peace and harmony to last in Marad, the police must continue their community programmes (Philip, A. 2009, „Khaki cuts the communal ice‟, Indian Express, 1 January http://www.indianexpress.com/story- print/405208/ – Accessed 1 May 2009 – Attachment 16).

The RRT Research Service has recently completed a number of Research Responses on the political situation in Kerala and the following may be of interest:

 Research Response IND34585 of 3 April 2009 provides information on a range of sources which discuss the importance of Kerala‟s sizable Muslim population within Kerala state politics and the interest of the competing Congress and CPI-M led coalitions in winning the support of the Muslim vote bank (RRT Research & Information 2009, Research Response IND34585, 3 April – Attachment 19).

 Research Response IND34462 of 25 March 2009 provides information on the few areas in Kerala where Hindu nationalist groups reportedly maintain a significant, and sometimes violent, presence (such as Kannur district) (RRT Research & Information 2009, Research Response IND34462, 25 March – Attachment 20).

RESPONSE

1. Are there any reports to indicate that Hindu nationalist groups have targeted any persons for writing, or speaking out about, the Marad Beach affair?

In the short time in which this research was completed no articles could be located which reported the mistreatment or threatening of any writers or journalists for publishing news or opinions on the Marad Beach affair. Searches were conducted within the Factiva news database and within Indian news media and press freedom websites, such as the News Watch and News Safety websites, for reports which associated the Marad Beach incident with attacks upon, or threats against, press freedom and/or freedom of speech. No such reports could be located. Groups such as the Kerala Union of Working Journalists (KUWJ) would appear to be regularly involved in reporting on, or protesting against, the attack or constraint of local journalists in Kerala. Examples follow, some involve attacks thought to be perpetrated by the Hindu nationalist BJP, but none appear to be linked to reporting on the Marad Beach affair.

 16 April 2008: “Condemning the attack on pro-Congress Jaihind TV, Kerala Union of Working Journalists (KUWJ) today demanded stern action against the miscreants involved in the incident. KUWJ Kozhikode District Committee, in a release here, said such attacks would be a challege [sic] against the freedom of the Press and deserved stern action against the perpetrators of the crime. A group of activists owing allegiance to the Bharatiya Janata Party had yesterday obstructed the news channel‟s office” („KUWJ condemns attack on Jaihind TV‟ 2009, New Kerala, source: United News of India, 16 April http://www.newkerala.com/nkfullnews-1-22470.html – Accessed 1 May 2009 – Attachment 33; see also: „KUWJ protest‟ 2009, The Hindu, 17 April http://www.thehindu.com/2009/04/17/stories/2009041751660300.htm – Accessed 6 May 2009 – Attachment 34).

 14 February 2009: “The Kerala Union of Working Journalists (KUWJ) today condemned the attack on Mangalam bureau at Palakkad in Kerala by unidentified assailants early this morning” („KUWJ flays attack on Mangalam office‟ 2009, WebIndia123.com, source: United News of India, 14 February http://news.webindia123.com/news/Articles/India/20090214/1177328.html – Accessed 6 May 2009– Attachment 35).

 20 August 2008: “journalist and three crew members of private TV channels were roughed up, allegedly by pro-strike activists in various places, when they were covering the general strike, called by Leftist trade unions here on wednesday, police said” („Scribe, TV crew roughed up in Kerala‟ 2008, News Safety website, source: The Hindu, 20 August http://www.newssafety.org/index.php?view=article&catid=117%3Aindia-media- safety&id=7284%3Ascribe-tv-crew-roughed-up-in- kerala&option=com_content&Itemid=100392 – Accessed 6 May 2009 – Attachment 36).

 1 July 2008: “According to information before IPI, on 26 June, a team of reporters from the daily Malayala Manorama and the Manorama News Channel were attacked while covering demonstrations held by the SFI, an organisation linked politically to the communist Marxist party, in the Kerala city of Kottayam” („Several journalists attacked, injured while covering student demonstration in Kerala, amid police indifference‟ 2008, International Freedom of Expression Exchange website, source: International Press Institute, 1 July http://www.ifex.org/en/content/view/full/94942 – Accessed 6 May 2009 – Attachment 37).

 26 June 2008: “Staff Reporter adds from Kottayam: The attack on journalists allegedly by activists of the Students Federation of India (SFI) on Wednesday has drawn protest from all quarters” („SP to probe attack on journalists‟ 2008, The Hindu, 26 June http://www.hindu.com/2008/06/26/stories/2008062653620400.htm – Accessed 6 May 2009 – Attachment 38; see also: „INS, Editors Guild condemn attack on journalists in Kerala‟ 2008, News Watch website, 26 June http://www.newswatch.in/newsblog/1353 – Accessed 6 May 2009 – Attachment 39).

 On 26 September 2007: “The International Federation of Journalists (IFJ) urges the Indian government to reconsider the summary termination of broadcast permission granted two satellite TV channels” („Government suspends two satellite television channels for a month without due process‟ 2007, International Freedom of Expression Exchange website, source: International Federation of Journalists, 26 September http://www.ifex.org/en/content/view/full/86554/ – Accessed 6 May 2009 – Attachment 41).

 On 14 August 2007, it was reported that: “Bharatiya Janata Party State president P.K. Krishnadas, on Monday, protested against the attack on the reporter and the crew of the Manorama News television channel at Kannur and implication of Vijayan, reporter of the Indiavision channel, in a police case” („BJP protests against attack on media‟ 2007, The Hindu, 14 August http://www.hindu.com/2007/08/14/stories/2007081454480500.htm – Accessed 6 May 2009 – Attachment 40).

 13 August 2007: “Scribes of Manorama News TV channel and Malayala Manorama daily‟s Kannur unit were manhandled by suspected CPI(M) workers while they were travelling in their vehicle here today” („Suspected CPI(M) workers attack scribes in Kerala‟ 2007, News Watch website, source: Press Trust of India, 13 August http://oldcontent.newswatch.in/news-analyses/attacks-on-scribes/8829.html – Accessed 6 May 2009 – Attachment 42).

 10 November 2005: “Amrita TV Chief Executive Editor Neelan was attacked by some miscreants, purportedly for airing a programme on increasing „goonda‟ attacks in the capital…The Kerala Union of Working Journalists (KUWJ) and several political parties condemned the attack and called for stringent action to contain such „„untoward incidents‟‟ against newspersons in the state” („TV journalist beaten up by miscreants in Kerala‟ 2005, News Watch website, source: United News of India, 10 November http://oldcontent.newswatch.in/news-analyses/attacks-on- scribes/2022.html – Accessed 6 May 2009 – Attachment 43).

 On 5 November 2004 The International Federation of Journalists expressed its concern “over the recent violence directed towards journalists and media workers in Kerala, India” in a report which noted numerous incidents though non which appeared to have any relationship with the Marad Beach affair („India : Violence directed towards journalists‟ 2004, International News Safety Institute website, 5 November http://www.newssafety.org/index.php?view=article&catid=117%3Aindia-media- safety&id=3312%3Aindia--violence-directed-towards- journalists&option=com_content&Itemid=100392 – Accessed 6 May 2009 – Attachment 44).

2. How effective is the Kerala police force in terms of providing effective protection to Kerala Muslims who are threatened by Hindus? Is there any information available on the security situation in Kottakkal in particular?

Source information follows below under the following subtitles:

 Background on Kottakkal village, District, Kerala;  Kottakkal police actions;  and Kerala police and state protection.

Background on Kottakkal village, , Kerala

According to the Microsoft Encarta Interactive World Atlas the village of Kottakkal, in Malappuram District, is some 20 kilometres distant from the Marad Beach‟s nearby town centre of in Kozhikode District („Kottakkal‟ 2000, Microsoft Encarta Interactive Atlas 2000; for Beypore‟s proximity to Marad Beach; see: „Kerala to seek CBI probe into Marad carnage‟ 2008, NewsX, 19 November http://newsx.com/story/35584 – Accessed 6 May 2009 – Attachment 45).

A map of Kozhikode District follows sourced from the Maps of India (Version 3.0) database:

A map of Malappuram District (showing the location of Kottakkal) follows sourced from the Maps of India (Version 3.0) database:

According to a February 2008 report Kottakkal is, in addition to being a village, a constituency within Kerala‟s state assembly. The same report also relates that Kottakkal has been zoned with the national Lok Sabha constituency of Ponnani („Kerala to seek CBI probe into Marad carnage‟ 2008, NewsX, 19 November http://newsx.com/story/35584 – Accessed 6 May 2009 – Attachment 46).

According to an Indo-Asian News service report of 13 April 2009 “Sunni Muslims are in a majority” in Kerala‟s Malappuram and Ponnani constituencies: “While Muslims constitute 70 percent of the population in the Malappuram constituency, in Ponnani they comprise 60 percent”. It is also reported that Muslim political interests are seen as having a powerful voice in these constituencies in electoral terms. Hindu nationalist groups like the BJP would appear to have little success winning support in the region with the CPI-M and IUML the traditional powers in the area. The report also relates that the areas have a significant expatriate population working in the Gulf states. According to an IUML leader interviewed by Indo- Asian News: “At least 20 percent of the total 1.5 million Keralites in the Gulf are from the Malappuram-Ponnani area”. Extracts from the report follow:

Guess what the people of two constituencies in Kerala want to know from political parties? Not so much about regional or national issues, but the parties‟ stance on Palestine and the India-US nuclear deal.

…Political leaders campaigning for the ruling Left Democratic Front (LDF) and the Congress-led United Democratic Front (UDF) are trying hard to convince voters about their stance on issues like imperialism, the Gulf War, the Palestinian crisis and the reasons behind the economic meltdown. “These two constituencies must probably be the only Lok Sabha seats in the country where the people actively discuss the India-US civil nuclear deal and its implications,” Mariyad told IANS on phone.

“The people, particularly Muslims, are very concerned about the developments in West Asia because every family in the region has Gulf connections. The district, which was backward, became prosperous from the money repatriated from the Gulf countries.”

Though the area is a stronghold of the Indian Union Muslim League (IUML), a key partner in the UDF, in 2004 the Communist Party of India-Marxist (CPI-M) won from Manjeri, now merged in the newly carved out Malappuram constituency after delimitation.

IUML leader and Minister of State for External Affairs E. Ahamed, who represents Ponnani in the current Lok Sabha, is the UDF candidate in Malappuram. T.K. Hamza of the CPI-M, who won from Manjeri, is his main opponent.

While the IUML has fielded former state education minister E.T. Mohammed Basheer in Ponnani, the LDF is supporting an independent candidate, Hussein Randathani, who enjoys the support of radical Islamic leader Abdul Nasir Maudany‟s People‟s Democratic Party (PDP) and a powerful section of the Sunni Muslims led by A.P. Aboobacker Musliyar, for the seat.

Faisal Mariyad said the “Muslim Ummah” or pan-Islamic concept is strong among the Malappuram Muslims. “The people here take the issues affecting Muslims anywhere in the world as their own issues, especially after the first America-Iraq war,” he said.

The IUML views this as a “dangerous trend”. Party leader and former minister M.K. Muneer told IANS on phone: “Raising pan-Islamic issues for the election campaign among the innocent, peace-loving people here is a dangerous trend”. He blamed the CPI-M for it.

While Muslims constitute 70 percent of the population in the Malappuram constituency, in Ponnani they comprise 60 percent.

“A majority of the Gulf returnees in the area are global citizens. Some are narrow-minded. The CPI-M is trying to influence the narrow-minded people, raising emotional issues,” Muneer said.

…”At least 20 percent of the total 1.5 million Keralites in the Gulf are from the Malappuram- Ponnani area,” he pointed out.

However, LDF legislator Manjalamkuzhi Ali said on phone that the people of Malappuram were concerned over issues like imperialism and globalisation.

“The Muslims in Malabar are traditionally anti-imperialist. They have fought the British and feudals before independence. That spirit is still in their blood,” said Ali, who represents Mankada, an assembly segment of the Malappuram Lok Sabha constituency (Biju, T.G. 2009, „N-deal, Palestine are poll issues for two Kerala seats‟, Thaindian, source: Indo-Asian News, 13 April http://www.thaindian.com/newsportal/politics/n-deal-palestine-are-poll-issues-for- two-kerala-seats_100178836.html – Accessed 6 May 2009 – Attachment 47).

On 18 April 2009 The Hindu reported of polling in the 2009 Indian national elections that: “The redrawn Ponnani Lok Sabha constituency witnessed the heaviest polling in its electoral history”. Results will not be available until mid-May. Details on the polling in Ponnani follow: The redrawn Ponnani Lok Sabha constituency witnessed the heaviest polling in its electoral history on Thursday. The constituency marked 77.11 per cent polling when 7.68 lakh people cast their votes to elect a representative to the 15th Lok Sabha.

The constituency comprising the Assembly segments of Tirurangadi, Tanur, Tirur, Kottakkal, Thavanur, Ponnani and Thrithala has 9.96 lakh voters, with 5.22 lakh women and 4.74 lakh men.

As many as 3.54 lakh men and 4.14 lakh women cast their ballot in 890-odd polling stations spread across 44 grama panchayats and two municipalities.

Tirur Assembly segment witnessed the largest (81.55 per cent) polling and Ponnani Assembly segment had the lowest (74.22 per cent) turnout. Kottakkal marked 78.57 per cent, followed by Tanur 77.86 per cent, Thavanur 76.88 per cent, Thrithala 76.07 per cent, and Tirurangadi 74.39 per cent.

The biggest turnout Ponnani had witnessed till now was in 1977 when Indian Union Muslim League (IUML) candidate G.M. Banatwalla defeated All India Muslim League candidate M. Moideenkutty Haji by over 1.17 lakh votes. Ponnani had polled 75.19 per cent votes then.

Interestingly, it was in the next elections held in 1980 that Ponnani marked its lowest voter turnout ever. In the 1980 elections, in which Banatwalla defeated Congress (A) candidate Aryadan Mohammed by 50,863 votes, the constituency saw a turnout of 60.39 per cent.

However, in the next two elections held in 1984 and 1989, Ponnani saw a voter turnout of more than 70 per cent. In the 1991 elections, the turnout was 64.21 per cent.

In the five elections held after the demolition of the Babri Masjid, the constituency consistently saw a voter turnout of below 70 per cent. In 1996, it was 67.21 per cent. In 1998 and 1999 elections, the turnout was 62.63 per cent and 60.63 per cent respectively.

In the 14th Lok Sabha elections held in 2004, Ponnani polled 62.31 per cent votes, which was only next to Ernakulam in the lowest turnout in the State.

Almost all Assembly segments had a relatively low voter turnout in 2004. Tirurangadi had seen 60.6 per cent, Tirur 64.01 per cent, Ponnani, 65.86 per cent, Tanur 59.4 per cent, the erstwhile Kuttippuram 67.9 per cent, Mankada (now in Malappuram constituency) 63.14 per cent, and (now in Malappuram constituency) 65.04 per cent („All-time high voter turnout in Ponnani‟ 2009, The Hindu, 18 April http://www.hindu.com/2009/04/18/stories/2009041852080300.htm – Accessed 6 May 2009 – Attachment 48).

According to a Hindu report, the panchayat of Kottakkal went to the Congress led UDF in Kerala‟s local government elections of 2005. It would appear that no Malappuram panchayats went to the BJP or any other Hindu nationalist front with all panchayats going to either the UDF, the CPI-M-led LDF or the IUML sharing the region (the IUML contested independently of the UDF) („Both fronts claim victory in Malappuram‟ 2005, The Hindu, 1 October http://www.hindu.com/2005/10/01/stories/2005100108660300.htm – Accessed 6 May 2009 – Attachment 49).

Kottakkal police actions In November 2008 it was reported by The Hindu that Kerala police were taking a close interest in the activities of communal political networks, both Hindu and Muslim, in a number of Kerala locales, including Kottakkal:

Kozhikode: The Special Purpose Cell (SPC), a newly constituted wing under the Special Branch of the State police, is closely monitoring the activities of several outfits and their offshoots with evidence emerging on the role of Hindu militant groups in several bomb blasts including the Malegaon incident in Maharashtra.

Reliable sources told The Hindu here on Thursday that officers had been entrusted with the task of keeping tabs on recently formed Hindutva outfits, particularly in the coastal belts of north Kerala and .

Many of the leaders of these organisations are suspected to have been maintaining links to organisations that have parted ways with the Rashtriya Swayamsevak Sangh (RSS) and its feeder organisations.

Besides, organisations such as the Vishwa Hindu Parishad, Hindu Aikya Vedi, and the and several of their sub-divisions have now been put under the scanner, sources said.

…The emergence of these Hindutva outfits in Malappuram and Kozhikode districts, officials believe, is because of the growth of Islamist organisations. Tirur and Kottakkal in Malappuram district have now become a breeding ground of both Hindutva and Muslim fundamentalist outfits.

Three categories

The SPC has been divided into three categories; each looking after specialised areas such as operation of communal organisations, extremists‟ outfits and organised crime. It has been formed for surveillance and to tackle the threat of the organisations that attempt to foment trouble in the State.

…Officials said the Bajrang Dal launching units at some of the grama panchayats in Malappuram, Kozhikode and Wayanad districts is equally disturbing.

However, only a few are active now because of lack of manpower and money support. A majority of the units are lying dormant. What has baffled the officers is the surfacing of Shiv Sena, purportedly another hardcore Hindutva organisation, in north Kerala.

Sources said many of the organisations based in Wayanad district are functioning among tribal settlements. They have been registered under various charitable organisations and doing generous work among the Adivasi population.

But the intensified activity of Hindutva organisations in the region is a fresh development considering the fact that mountainous forests of the district have been used by Muslim outfits and Maoists groups for training purposes. (Govind, B. 2008, „Hindutva groups under the scanner‟, The Hindu, 22 November http://www.hinduonnet.com/2008/11/22/stories/2008112254570400.htm – Accessed 6 May 2009 – Attachment 50).

Reports of police problems with activists of both the Muslim NDF and the Hindu RSS, as well as with activists of communist groups, have been reported from Kottakkal in recent years (reports of police problems with communist groups have appeared in 2008 and 2009: Philip, S. 2009, „CPM workers storm police station, free held comrades‟, Indian Express, 3 January http://www.indianexpress.com/news/cpm-workers-storm-police-station-free- held/405959/ – Accessed 6 May 2009 – Attachment 58; „Police failed to act smartly: Kodiyeri‟ 2008, The Hindu, 2 September http://www.hindu.com/2008/09/02/stories/2008090254690400.htm – Accessed 6 May 2009 – Attachment 57; reports of police problems with the NDF and RSS activists appeared in 2007: „Strong action against NDF, RSS: Kodiyeri‟ 2007, The Hindu, 26 March http://www.hindu.com/2007/03/26/stories/2007032619820100.htm – Accessed 6 May 2009 – Attachment 53; „Kerala not to allow bid to disrupt peace‟ 2007, The Hindu, 24 March http://www.thehindu.com/2007/03/24/stories/2007032405050900.htm – Accessed 6 May 2009 – Attachment 54; „NDF flays detention of leaders‟ 2007, The Hindu, 23 March http://www.hindu.com/2007/03/23/stories/2007032313300500.htm – Accessed 6 May 2009 – Attachment 55; „NDF activists attack Kottakkal police station; 27 arrested‟ 2007, The Hindu, 23 March http://www.hindu.com/2007/03/23/stories/2007032314290400.htm – Accessed 6 May 2009 – Attachment 56; „Collector initiates peace talks in Malappuram‟ 2007, The Hindu, 27 March http://www.hindu.com/2007/03/27/stories/2007032706990500.htm – Accessed 6 May 2009 – Attachment 52).

Police have reportedly responded by taking action against both activists of the Muslim NDF and activists of the Hindu RSS. A 26 March 2007 reports relates:

Home Minister Kodiyeri Balakrishnan said here on Sunday that the recent attack on the Kottakkal police station by National Development Front (NDF) activists was the only such incident after the 1972 naxalite attacks. The Government has, therefore, viewed it with utmost seriousness, he said.

Mr. Balakrishnan congratulated the police officers who foiled the attack and said they would be duly rewarded. Had the attack not been thwarted, it would have been a humiliation for the police, he said.

He said 22 people were arrested in connection with 11 attack cases in the district. Action would be initiated against more people who aided the attackers, he said.

A special squad of the police led by the Crime Detachment Deputy Superintendent of Police would investigate the killing of Lakshmanan at Othukkungal and the attack on Hameed at Parappanangadi, he said. The police had already arrested some Rashtriya Swayamsevak Sangh (RSS) workers in connection with the attack on Hameed. The Home Minister said the financial sources of the communal forces, including the NDF and the RSS, would be investigated. Mr. Balakrishnan said strong action would be initiated against those giving armed training for communal attacks in the district. All organisations engaged in physical training would be under surveillance, he said.

He said leaders of the Communist Party of India (Marxist) and the Indian Union Muslim League had initiated dialogues to end political clashes between the two parties along the coastal region.

A meeting of local political leaders held under his chairmanship on Sunday decided to work together, if needed, to restore peace in the region.

…The Minister visited the Kottakkal police station and examined the damage and the weapons seized from the attackers. Earlier, Local Self-Government Minister Paloli Mohammed Kutty told reporters here that the Government would deal sternly with extremist forces („Strong action against NDF, RSS: Kodiyeri‟ 2007, The Hindu, 26 March http://www.hindu.com/2007/03/26/stories/2007032619820100.htm – Accessed 15 May 2009 – Attachment 59).

Nonetheless there was also some criticism of local police for failing to prevent the violence which took place. A separate 26 March 2007 report relates:

The violent incidents being reported from Malappuram district have become a cause for concern with no let up in the tension gripping the district.

…The developments in Malappuram that culminated in the attack on the Kottackal police station are not something that has happened overnight.

Tension has been perceptible in the district for months together before the killing of three persons, but the authorities have failed to take precautionary action. Even after the recent incidents, police action has been found `insufficient‟ to contain the terror gripping the district.

Many people from other parts of the State are working in government offices, banks and other agencies in the district. They have been nervous for quite some time.

…Trade and the transport industry have been hit in places such as Tirur and the fear is spreading to Paparappanangadi, Tanur and Kottackal. The police do not dare to venture into some areas.

The problem in the district is not just that of activities of fundamentalist organisations. The situation is compounded by its connections to mainstream parties and the support fundamentalist elements enjoy from certain politicians.

It is alleged that some people who work for the National Development Front (NDF) secretly are members of mainstream parties, especially the Indian Union Muslim League.

Even two years ago, clashes had occurred on the Ponnani coast between League and Communist Party of India (Marxisy) workers. However, the NDF is believed to be behind the attacks.

There have also been frequent clashes between Rashtriya Swayamsevak Sangh and the NDF activists.

The Muslim League has officially distanced itself from the violence with the party leader Panakkad Syed Mohammedali Shihab Thangal urging people to maintain peace.

However, there is liaison between some League leaders and the NDF, according to sources.

BJP demand

The Bharatiya Janata Party wants the Government to take strong action and the League to adopt a stronger position. Party State president P.K. Krishnadas has demanded that the police raid NDF camps at Manjeri with the help of paramilitary forces.

It is planning to launch agitations to press for its demand for stringent action as the police are hesitating to act against fundamentalists.

The United Democratic Front (UDF) maintains that the CPI(M) is appeasing communal parties and this has led to growing violence. The Government should be taking strong steps to suppress violence and all political parties should lend support, UDF convener P. P. Thankachan said („Strong action against NDF, RSS: Kodiyeri‟ 2007, The Hindu, 26 March http://www.hindu.com/2007/03/26/stories/2007032619820100.htm – Accessed 15 May 2009 – Attachment 60).

Peaceful political activities of Hindu and Muslim communal political groups would also appear to take place in Kottakkal (see: Sebastion, D. 2009, „Clerics pick Congress, kick Left‟, DNA News, 11 April http://www.dnaindia.com/report.asp?newsid=1246903 – Accessed 6 May 2009 – Attachment 51; „Strong action against NDF, RSS: Kodiyeri‟ 2007, The Hindu, 26 March http://www.hindu.com/2007/03/26/stories/2007032619820100.htm – Accessed 15 May 2009 – Attachment 62; „ABVP vehicle campaign against Aligarh Muslim University campus‟ 2009, The Hindu, 14 March http://www.hindu.com/2009/03/14/stories/2009031450880300.htm – Accessed 18 May 2009 – Attachment 63; „MYL takes out rally‟ 2007, The Hindu, 21 April http://www.hindu.com/2007/04/21/stories/2007042112930500.htm – Accessed 18 May 2009 – Attachment 61; „STU district meet‟ 2007, The Hindu, 2 December http://www.hindu.com/2007/12/02/stories/2007120252650300.htm – Accessed 18 May 2009 – Attachment 64; „Ahamed urges Muslims to do introspection‟ 2006, The Hindu, 7 September http://www.hinduonnet.com/2006/09/07/stories/2006090713240400.htm – Accessed 18 May 2009 – Attachment 65; „IUML panel meet continues‟ 2006, The Hindu, 4 June http://www.hindu.com/2006/06/04/stories/2006060408640400.htm – Accessed 19 May 2009 – Attachment 66; „Chandy meets Kunhalikutty‟ 2005, The Hindu, 17 April http://www.hindu.com/2005/04/17/stories/2005041705360400.htm – Accessed 19 May 2009 – Attachment 67).

Kerala police and state protection

Detailed information on the efficiency, or otherwise, of Kerala‟s state police service could not be located . Reports have appeared regularly in the Indian press in which Kerala police are praised and/or criticized by various political figures in Kerala state politics, as have reports of corrupt practices within Kerala‟s police force along with reports of newly implemented reforms and the allocation of increased resources to the Kerala police. The Asian Centre for Human Rights (ACHR) centre has been particularly critical of the Kerala police force in a number of regards in recent years and extended extracts from recent ACHR reports follow below. Nonetheless, an extensive study of the effectiveness of the Kerala state police force, that is to say a dedicated research study offering findings and evidence of a more substantive nature, could not be located (for reports of alleged corruption and inefficiency within the Kerala police force, see: „Vigilance probe against top police official‟ 2008, OneIndia.com, 24 May http://news.oneindia.in/2008/05/24/vigilance-probe-against- top-police-official-1211648508.html – Accessed 19 May 2009 – Attachment 69; „Shun violence, CPI(M) told‟ 2009, The Hindu, 27 April http://www.hindu.com/2009/04/27/stories/2009042754730500.htm – Accessed 19 May 2009 – Attachment 68; „Police urged to clean up act‟ 2007, The Hindu, 19 April http://www.hindu.com/2007/04/19/stories/2007041920600500.htm – Accessed 19 May 2009 – Attachment 70; „Police seminar on custodial deaths‟ 2006, The Hindu, 23 August http://www.thehindu.com/2006/08/23/stories/2006082309580300.htm – Accessed 19 May 2009 – Attachment 71; for newly implemented reforms within and/or the allocation of increased resources to Kerala police, see: „Govt takes steps for efficient, honest police force: Minister‟ 2009, WebIndia123.com, source: UNI, 10 February http://news.webindia123.com/news/articles/India/20090210/1174106.html – Accessed 19 May 2009 – Attachment 72; „Draft police Act proposes major reforms‟ 2008, The Hindu, 7 June http://www.hindu.com/2008/06/07/stories/2008060753340400.htm – Accessed 19 May 2009 – Attachment 73; „Plan to recruit 5,000 more police personnel‟ 2008, The Hindu, 10 December http://www.hinduonnet.com/2008/12/10/stories/2008121050080100.htm – Accessed 19 May 2009 – Attachment 75).

The Asian Centre for Human Rights (ACHR) centre has been critical of the Kerala police force in a number of regards in recent years. Reporting on the human rights situation in Kerala for the year of 2008 the ACHR expresses concern about the number of deaths in custody under the Kerala police and the failure of “Thiruvalli police station in Wayanad district” in preventing an attack an Evangelical Christian pastor by “Hindu fundamentalists”. The ACHR relates that: “According to the Kerala Police, there were 856 officers in the police department with criminal cases against them as of 10 February 2007”.

Kerala is governed by the Communist Party of India (Marxist). While Kerala is one of a diminishing number of States without armed insurgency, the State police have an appalling record on human rights violations including custodial deaths.

On 26 July 2007, the State government announced it would re-investigate four 2006 custodial deaths cases after the report of the Justice Rajendra Babu Commission, which examined 15 custodial deaths, was brought before the State Assembly.

The Kerala High Court has jurisdiction over Kerala and the Union Territory of Lakshadweep. It continued to be hampered by delay. There were vacancies of 12 judges against the sanctioned strength of 38 in the Kerala High Court as on 1st January 2008. In the district and subordinate courts, there were vacancies of 18 judges as on 30th September 2007. The failure to appoint adequate judges further contributed to the failure of the High Court and the lower courts to dispose of all the cases. As of 30th September 2007, there were 1,15,750 cases pending in Kerala High Court and 9,37,789 cases pending in the district and subordinate courts of Kerala.

…On 14 October 2007 at 2.30 am, Pastor TC Joseph (57) and his wife Ammini (50) were attacked by alleged Hindu fundamentalists at their residence at Mananthavady under Thiruvalli police station in Wayanad district. The couple had to be admitted in hospital with severe injuries. The pastor was associated with New India Bible Church and has been working among tribal people for the last 15 years.

…II. Human rights violations by the security forces

On 26 July 2007, the State government announced it would re-investigate four 2006 custodial deaths cases after the report of Justice Rajendra Babu Commission was placed in the State Assembly. Justice Babu inquired into 15 cases of custodial deaths reported since the Left Democratic Front government had come to power.

The NHRC stated that it recorded three cases of deaths in police custody in Kerala during 1 April 2006 – 31 March 2007.

The reports of custodial death continue to rise:

On 11 July 2007, one Manoj of Kadmankuzhy near Theodickal died in the custody of Perumpetty Police Station in Malappally taluk in Pathanamthitta district due to alleged torture. The deceased was illegally picked up by the police on the morning of 11 July 2007 after he was found in suspicious circumstances at a waiting shed near Kottanad. According to the police, Manoj complained of stomach ache and was taken to the Kottanad Primary Health Centre. He was referred to District Hospital in Kozhencherry when he complained of chest pain. He died at the District Hospital at 10.40 a.m. on 11 July 2007.

In September 2007, the Kerala High Court ordered further investigation by the Central Bureau of Investigation (CBI) into the custodial death of Udayakumar at the Fort Police station, Thiruvananthapuram.

According to the Kerala Police, there were 856 officers in the police department with criminal cases against them as of 10 February 2007. The majority of these officers were reportedly facing departmental-level inquiries.

…VI. Violations of the prisoners‟ rights

The NHRC recorded 37 cases of deaths in judicial custody were registered in Kerala during 1 April 2006 – 31 March 2007.

Several under-trial prisoners were detained in jail for periods exceeding the sentence they would have faced had they been convicted of the charges under which they had been detained. On 4 September 2007, the state informed the Kerala High Court that it had paid compensation to 74 under-trial prisoners who had been detained in jails for the maximum period of imprisonment provided for the offences with which they were charged. These under-trial prisoners were released on the order of the High Court.

On 22 January 2007, one Shaji (aged above 35 years), son of Keshavan, a resident of Koyikal Nikarthil house in Cherthala, Alapuzha district of Kerala died due to alleged torture at Viyoor Central Jail in Thrissur district.

He was initially detained at Kombara Sub Jail in Ernakulam district but on 20 January 2007, he was transferred from Kombara Sub Jail to Viyoor Central Jail along with 17 other prisoners citing lack of space in Kombara jail. On arrival at the Viyoor Central Prison, the detainees were allegedly assaulted by Yohannan, an officer in the prison. Shaji was assaulted when he said he would complain to the court about the assault. On 22 January 2007, when Shaji was produced before the Additional Chief Judicial Magistrate Court, Ernakulam, he lodged a formal complaint with the magistrate court and the court ordered that he be medically examined. But the doctor on duty at the District Hospital in Ernakulam did not examine Shaji properly. After Shaji was brought back to Viyoor jail, he was allegedly tortured again. He had to be taken to the Medical College Hospital at night in a prison ambulance and the victim died in the hospital at around 10:00 pm (Asian Centre for Human Rights 2008, „Kerala‟, in: India Human Rights Report 2008, December http://www.achrweb.org/reports/india/AR08/kerala.html – Accessed 19 May 2009 – Attachment 74).

Reporting on the human rights situation in Kerala for the year of 2008 the ACHR expresses similar concerns:

Ruled by Communist Party of India (Marxist), Kerala is one of the States without any armed opposition group but the State police remained infamous for violations of the right to life. In the first three months of assuming office by the Sri. V.S. Achuthanandan-led government on 18 May 2006, about 14 persons reportedly died in police custody across the State. Facing mounting pressure, on 17 August 2006, the Government of Kerala ordered a judicial inquiry into the custodial deaths in the State.[1] The judicial inquiry commission did not make its report public by the end 2006. The State Human Rights Commission registered 25 custodial death cases up to 30 June 2006, 39 in 2005, 49 in 2004 and 41 in 2003.[2] Judiciary continued to be plagued by delays. By the end of December 2006, there were 3 posts of judges lying vacant in the Kerala High Court.[3] As on 30 June 2006, there were 29 posts vacant in the District and Subordinate Courts[4] but the vacancy came down to 4 as on 30 September 2006. A total of 12,22,39 cases were pending with the High Court and a total of 9,24,557 cases were pending with the District and Subordinate Courts as on 30 September 2006.[5]

The State Human Rights Commission (SHRC) had been non-functional. On 28 July 2006, the Kerala High Court stayed the working of the SHRC until appointment of a full-time Chairperson according to the Human Rights Protection Act, 1993.[6] Following the interventions of the High Court, on 16 August 2006, former Jharkhand Chief Justice N. Dhinakar was appointed the Chairman of the Kerala SHRC.[7]

2. Human rights violations by the security forces

The Kerala Police were infamous for use of third degree method of torture known as “Uruttu method” which involves rolling an iron rod over the suspect‟s body with two policemen applying severe pressure on both ends. Sometimes they even sit on the rod.

There were rampant reports of custodial killings. In the first three months of assuming office by the V.S. Achuthanandan-led government on 18 May 2006, about 14 persons reportedly died in police custody across the State. The victims of custodial killings among others included Sahadevan, son of Shankaran of Ayyapankavu and lower grade employee of Thrissur Municipal Corporation and K. R. Shiju of Ayyapankavu who were tortured at Mannuthy police station in Thrissur district on 5 March 2006;[8] Mr. Sunil, son of Velayudhan of Kodakara in Thrissur district who was tortured at Kodakara police station by Head Constable Lohidakshan and three other police constables on 23 September 2006,[9] and Mr. Wilson, son of William of Mannuthy who was tortured at Mannuthy police station in Thrissur district on 9 October 2006.[10]

Police consistently denied torture to be the cause of these deaths. According to Director General of Police, Jacob Punnoose, three persons died of cardiac arrest and four others died because of complications resulting from meningitis, pneumonia, withdrawal symptoms and leukaemia and five had allegedly died after jumping into lakes and ponds after being chased by the police.[11]

Facing mounting pressure, on 17 August 2006, the State Government decided to order a judicial inquiry by a sitting judge into the custodial deaths in the State.[12] However, the Kerala High Court refused to grant the State‟s demand to appoint a sitting Judge. The State government thenappointed Justice R Rajendra Babu, a retired judge of the Kerala High Court, to conduct the probe[13] without any consultation with the Opposition parties. On 25 October 2006, Home Minister Kodiyeri Balakrishnan stated in the State Assembly that the Opposition was not consulted due lack of time.[14] Earlier on 20 September 2006, Chief Minister V.S. Achuthanandan stated in the State Assembly that the State Government would consider providing immediate assistance to the next of kin of those who had died in police custody or on account of actions of the police in the past four months.[15] The report was not made public by the end of the year.

Torture was an integral part of investigation. On 17 July 2006, 50-five-year-old Razak allegedly died of torture during interrogation at the Panniyanakara police station after his arrest in a mobile phone theft case. The doctors at the hospital stated that he was brought dead. The Sub-Inspector MD Sunil Kumar of the police station was suspended following the incident.[16] On 9 September 2006, one Mr Saju, a private bus conductor of Pattimattom village under Kunnathunadu police station in Ernakulam district was allegedly tortured to death in the police custody at Kunnathunadu police station for failing to pay a bribe of Rs 3,000 to the police officers identified as Hariharakumar, Assistant Sub Inspector of Police and constables Abraham and Kochaniyan. The deceased was arrested on 8 September 2006 on the charges of stealing three telephone posts.[17]

Some cases were taken up with the judiciary. On 5 January 2006, the Kerala High Court directed the State Government to file a report before 16 January 2006 on the status of investigation into the alleged custodial death of Udayakumar at Fort Police Station in Thiruvananthapuram on 27 September 2005.[18] Earlier on 4 January 2006, the Judicial First Class Magistrate-II granted bail to three policemen Jitha Kumar, Soman and Sreekumar who were arrested in connection with the custodial death.[19]

In September 2006, State Home Minister Kodiyeri Balakrishnan announced that the government would amend the Kerala Police Act and Manual to provide for inquiry by a judicial magistrate into custodial deaths, and that policemen responsible for lock-up deaths would be dismissed from service.[20]

…4. Violations of the prisoners‟ rights

The jails in Kerala were overcrowded. As of September 2005, about 6,950 prisoners, excluding those on parole, were housed against the total sanctioned capacity of 5,415 prisoners in the State.[26]

The Kozhikode district jail at Puthiyara in Kozhikode was reportedly extremely overcrowded. As of 13 January 2006, there were 475 prisoners including 424 under-trials, against the sanctioned capacity of 255 persons. Some of the prisoners had been undergoing trials for over two years. The police allegedly did not cooperate in escorting the under-trials while producing them in courts. The staff strength of the district sub jail was below 50, which included a superintendent, a deputy jailor, three assistant jailors and eight head wardens. The post of the welfare officer had been lying vacant for several months. There were also vacancies of 20 wardens out of a total 34 posts for a long time. A few wardens were recruited on temporary basis but they were not trained to handle with the prisoners. In contrast to this, there were 105 wardens for 400 to 450 inmates in the Viyyur Central Prison in Thrissur district. The district sub jail also lacked modern facilities and alleged interference of politicians in the administration of the jail was a problem. Some of the jail staff were allegedly involved in corruption. Liquor and drugs were easily available to inmates on request. Some of the prisoners were given special treatment such as use of mobile phones inside the prison and getting food supplied from hotels in connivance of the jail authorities.[27]

During the visit of then State Human Rights Commission Chairman V.P. Mohankumar to the Kozhikode district jail at Puthiyara on 16 February 2006, the prisoners complained of the poor quality of food provided to them. Doctors visited the jail only once in a week. Mr Mohankumar found that many of the under-trial prisoners were not being produced before the court owing to the non-availability of police personnel to escort them. Yet, according to Mr. Mohankumar, Kozhikode district jail was better than those in other parts of the State he had visited earlier.[28]

On 6 October 2006, a Division Bench of the Kerala High Court comprising Justice J. B. Koshy and Justice K. Padmanabhan Nair directed the Director of Vigilance and Anti- Corruption Bureau to constitute a team headed by an officer not below the rank of Inspector General of Police, Vigilance, to conduct an inquiry into the allegations of corruption and favoritism levelled against officers of central prisons and take appropriate action in accordance with the law. The order came while disposing of a suo motu case relating to grant of parole to life convicts and allegations of favouritism shown to certain convicts by the jail officials. It was alleged that ganja was allowed inside the Central Prison in Thiruvananthapuram with the connivance of jail officials. The Division Bench also directed the State Government to reconstitute the Jail Advisory Boards as prescribed under Rule 544 of the Kerala Prison Rules to consider and recommend the cases for remission of sentences of prisoners. The Jail Advisory Boards were directed to consider cases of all prisoners, whether serving short-term or long-term imprisonment, in accordance with the rules and guidelines and furnish their report to the Government (Asian Centre for Human Rights (undated), „Kerala‟, in: India Human Rights Report 2007 http://www.achrweb.org/reports/india/AR07/kerala.htm – Accessed 19 May 2009 – Attachment 76).

3. What kind of information is required by police in order to take action where a person claims to have been assaulted/threatened?

Information on first information report (FIR) procedures and practices follows below, sourced from Kerala government and police websites, other Indian state and territory government and police websites, and the websites of Indian news services and human and civil rights monitors. The information provided by these latter sources suggests that the practices associated with attempts to file an FIR in India can often be very different from those which are prescribed in law. For this reason information on the prescribed procedures for FIR registration is followed by information on the various circumstances which can affect attempts to register an FIR in practice.

Registering a First Information Report (FIR) – the prescribed procedures

The website of the Kerala state police force provides the following background information on the filing of first information reports (FIRs) at Kerala police states:

How do I get a crime case registered?

A crime case can be registered within the jurisdiction of a police station where the offence has been occurred.

Can the police say „no‟ to register a crime case?

Refusal to record on First Information Report on the ground that the place of crime does not full within the jurisdictions of the police station, amounts to dereliction of duty. Information about cognizable offence should be recorded and forwarded to the police station having jurisdiction.

Whether I have to sign the FIR for a crime case to be registered?

Yes, the person giving information relating to the commission of a cognizable offence has to sign the FIR as per section 154(1) CrPC.

Whether I will get a copy of the FIR, registered on my compliant free of cost?

Yes, a copy of the FIR shall be given to the informant free of cost as per section 154(2) CrPC. Whether other than FIR, I have to put signature in a statement recorded by the police during investigation of the case?

No statement made by any person to a police officer in the course of an investigation shall if reduced into writing, be signed by the person making it as per section 162 CrPC („Frequently Asked Questions‟ (undated), Kerala Police website http://www.keralapolice.org/newsite/faq.html – Accessed 1 May 2009 – Attachment 21).

Similar information was located on the website of the Kerala Ministry of Home Affairs:

What does the police do on receiving a complaint?

Generally there are two types of offences, namely cognizable and non-cognizable Offences. Cognizable cases are cases in which police can directly register cases and in non-cognizable cases police cannot directly register case but require permission of the court to do so. If the complaint relates to cognizable offences, police will register as case and investigate and for the non-cognizable offences the informant will be directed to the court of police will send the complaint to the concerned court with a request for sanction to register cases.

…What is FIR (First Information Report)?

The substance of the complaint will be reduced to writing by the police officer to whom it is given which is called first information statement and a police form (FIR form) will be filled, got signed by the informer and sent to the court without any delay. The substance of the complaint can be either be written on the FIR form itself, if the complaint is given at police stations, or separately on white paper if the informer is somewhere else other than the police station. (This is envisaged in Sec. 164 Cr.PC).

What is meant by saying “case is registered”?

„Case is registered‟ means First Information Report (FIR) has been registered on the basis of the complaint given either orally or written by the informer. This is the first step for investigation. Once case is registered, the disposal authority is the court.

What is charge sheet?

(173 Cr.PC Final report)

On investigating a case, if the investigating officer collects sufficient evidences relating to the facts and circumstances of the case to prove allegations against the accused in the case, he will prepare charge sheet implicating the accused on the strength of the true, clear and convincing evidences and the charge sheet so prepared will be preferred to the court. Charge is prepared by the court.

What is Mahassar?

(SA 7 of the IE Act)

It is a description of facts and state of things which an investigating officer observes in a scene of crime. It should be prepared in the presence of two independent and intelligent witnesses preferably reside nearby. Statements should not be written in the mahassar except in mahassars prepared under section 27 of Indian Evidence Act. The witnesses should sign the mahassar. The mahassar enables the court to obtain an idea of the scene of occurrence of a crime. What are Summons and Warrants?

(61 Cr.PC)

When the presence of a person needed by the court in connection with any matter under inquiry, the court issues summons to the concerned person in which a direction is given to the party to appear before the court on a specified date and time.

Warrants (70 Cr.PC)

It is a direction by a court either to a police officer or to any other person to arrest the person against whom the warrant of arrest issued and produce him before the court. Arrest can be effected either by word, touch or using minimum force sufficient to confine the person („The Enactment, Ordinance Or Legislation Pertaining To The Department‟ (undated), Kerala Ministry of Home Affairs website http://www.kerala.gov.in/dept_home/enactment.htm – Accessed 1 May 2009 – Attachment 22).

More detailed information on the procedures associated with filing an FIR in Kerala could not be located from Kerala government websites. Nonetheless, of interest may be the extensive details on the procedures associated with lodging an FIR which are outlined in Attachment 23, sourced from the website of the Delhi Police Training College, and Attachment 23, sourced from the website of the Andhra Pradesh Crime Investigation Department (CID). These sources discuss a range of FIR procedural issues at length including: the format of the FIR; the details essential to all FIRs; the details particular to FIRs in cases of alleged conspiracy, murder and corruption; details of who can lodge an FIR; and details of who can write an FIR. The overview sourced from the Andhra Pradesh CID also provides details of various court decisions from across India, including from Kerala state, which have affected FIR procedures („Introduction: First Information Report‟ (undated), Delhi Police Training College website http://demotemp286.nic.in/work%20books/pdf/First%20%20Information%20%20Report.pdf – Accessed 17 October 2008 – Attachment 23; Ramulu, E. 2004, „First Information Report‟, Andhra Pradesh Crime Investigation Department, Andhra Pradesh CID Journal, October, pp.45-49 http://www.cidap.gov.in/documents/First%20Information%20Report_129200530411%20PM .pdf – Accessed 1 May 2009 – Attachment 24).

Registering a First Information Report (FIR) – in practice

A June 2002 article authored by Bijo Francis, a human rights lawyer practicing in Kerala, provides the following information on FIRs and the India‟s Code of Criminal Procedure noting both prescribed procedures and the manner in which “manifold-lack of responsibility, corruption, nepotism etc” can affect how FIRs function in practice.

The First Information Report (FIR) is the key to a successful criminal investigation. It is the trigger that sets into motion the investigation mechanism in a given crime. It is interesting to note, however, that the term “first information” is not mentioned in the code. It merely says “information recorded under Sec.154”.

The details to be recorded in the FIR are exhaustive. It contains the date and time of giving the information, police station where it is recorded, place, date and time where the offence has taken place, the names of the persons who have committed the offence, probable provisions under the Indian Penal Code or any other enactment under which the offences are punishable, the information in detail, name and address of the informant and the action taken.

The object of the FIR from the point of view of the informant is to set the criminal law in motion, whereas for the investigator it is to gather information regarding the offence so as to take appropriate action to book the offender. It acts as a record book. In either case it aims to record the information as early as possible and for future reference. The law stipulates that the information has to be recorded immediately on receipt. Here the nature of the offence is also important. Only when information is received regarding a cognizable offence can the police investigate without the order of a magistrate; in the case of a non-cognizable offence, the informant has to be referred to a magistrate.

The law, is clear and it has been reinforced by the decisions of the courts. Even if the information regarding a crime is received over the telephone, and even if the call is anonymous, it has to be put into writing as an FIR (Criminal Law Journal 1980, p. 1397). But this doesn”t mean that any vague or cryptic information can be treated as information for recording an FIR. Whether it amounts to “first information” or not is essentially a question of fact depending on the circumstances in each case (All India Reporter 1961 Kerala 99). Therefore, in determining whether a report amounts to an FIR or not, regard should be had to the following:

1. It should not be vague or indefinite but give facts showing commission of a cognizable offence enabling the police, or give a scent to allow police to take up investigation.

2. It may be given by anyone, not merely the person aggrieved or by someone on his behalf.

3. It need not name anyone as the offender or witness; nor need it state the circumstances of the commission of the crime. It is simply the first information that sets the police in motion.

In a case where the first information is in fact given by the accused, it stands on a similar footing as information by any other person except that the confessional part, if any, must be excluded. This is because such statements, if taken with the confessional part, fall under Sec. 25 & 26 of the Indian Evidence Act. However, there is no bar to a confession in an FIR being used in favour of the accused. Where a person lodging an FIR is subsequently accused of the offence, it is an admission of certain facts that have a bearing on the question to be determined by the court. When the accused gives the first information, that fact is admissible against the accused as evidence of conduct under Sec. 8 of the Indian Evidence Act. Where the information is not confessional, it is still admissible against the accused under Sec. 21 of the Indian Evidence Act (All India Reporter 1966 Supreme Court 119, All India Reporter 1964 Supreme Court 1850).

Other details in the section are also important. The information provided has to be reduced into writing. This is a mandatory condition. The information being taken down has to be read over to the informant, and the signature of the informant obtained. A copy of the statement has to be served free of cost to the informant. This is also mandatory. The matter further has to be entered in the General Diary or the Station Diary and the FIR has to be forwarded to the local magistrate for the court records as well. Omitting information from the station diary will not necessarily vitiate the trial, but it will have important bearing if the date and time of lodging the FIR is questioned during trial.

The FIR is a highly valuable and vital piece of evidence in a criminal trial. It is necessary to corroborate the oral evidence in the case (All India Reporter 1973 Supreme Court 501). It is the first version of the incident and is of considerable value as it reveals the materials that the investigation commenced with and what the original version of the story was. It has high practical value since the information is from the earliest instance, when the memory is clear and vivid.

So given the law, what happens in practice? Even though the contents of the FIR and the details therein are very explicit, the instances of misusing these entries and inadequate entering of the necessary details are rampant. Often, even if information is given, with graphic details, the police fail to record a statement and to initiate any action. It is the duty of the police officer in charge of a station to record the information and take appropriate action. But often the officer in charge fails to perform his duty. The reasons are manifold-lack of responsibility, corruption, nepotism etc. Whatever the reason, the mechanism that ought to be set in motion simply does not work, resulting in failure of justice. Cognizable offences are reported to the police, yet are not recorded, are recorded carelessly, or falsely recorded on purpose to permit the accused an easy walk through in the trail.

The Criminal Procedure Code has laid down provisions for reporting the offences and the modus of recording, but it has failed to foresee the possibility of an officer committing errors either willfully or accidentally. The only safeguard is to address the superior officer on the dereliction of duty by a subordinate officer. But this is limited to cases when the officer in charge fails to record the information, and not where the information recorded is improper. Under any circumstances, the law again places utmost confidence in the police officers. What if the higher officer is also corrupt or reluctant to act to meet the ends of justice? The only option for the informant is to approach the courts to redress the grievances, which would take at least six to seven months to begin an inquiry, given the number of cases pending disposal before the various courts in this country. Such investigations suffer inordinate delays before being set into motion. Yet the very purpose of recording an FIR is to get a picture of the incident while it is clear and vivid in the informant”s memory. That is probably why the law does not even permit a preliminary enquiry into the incident before recording an FIR, because it would destroy its value and pave the way for fabrication of cases (All India Reporter 1961 Kerala 99).

At this point it is pertinent to note that the courts have dealt with delays in filing an FIR as to be viewed according to the facts and circumstances in each case. For example, a delay in lodging an FIR in a case of rape is treated differently from a murder in broad daylight. The mindset of the person lodging the information, especially the victim in a rape case, is important, and in such cases a delay of days has been excused. The effect of a delay must fall for consideration on all facts and circumstances of a given case (All India Reporter 1973 Supreme Court 1). Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case depends upon several factors, including the defense.

However the delay in many FIR submissions is caused not by the informants, but by the police themselves. For the ordinary person, the business of lodging an FIR can often turn out to be a disgusting if not insulting experience. Instances are many when the police accuse the person lodging the information of making unnecessary work for them and order the informant out of the police station. There are reported cases where women who went to lodge information were raped or other wise molested by police officers. The Apex Court has on various occasions condemned such acts and has held the police responsible and awarded compensation to the victims. So for an ordinary citizen without power and influence, the FIR sometimes turns out to be nothing more than the First Insulting Response.

The police have their own way of circumventing the provisions of any given enactment so as to facilitate their needs. The FIR is one example of where they have ample opportunities to make space to wet their beaks in future. For instance, the code does not insist that the accused be named while recording the FIR. The police have various ways of exploiting this provision. They can simply record a known person or persons in the column provided and later arrest them for committing the crime. Having made the arrests, they can stage-manage the trial and give evidence congenial for an acquittal after accepting bribes or other undue gratification.

Now the Central Government has embarked upon an attempt to revise the Criminal Procedure Code of this country so as to contain the rampant misuse of these procedures. However improved and advanced be the procedural law, it will be of little help if police prosecutions are not properly launched and if the inherent inertia of the police in this country is not promptly tackled to address their indolent methods and the inefficient investigation of crimes wreaking havoc on the criminal justice dispensation system of this country (Francis, B. 2002, „First Information Report or „First Insulting Response‟?‟, Article 2 website, Focus: Police in India, vol.1: no.3, June, pp.13-17 http://www.article2.org/mainfile.php/0103/33/ – Accessed 1 May 2009 – Attachment 26).

On 18 September 2008 The Hindu reported from New Delhi that “The Supreme Court [had] referred to a larger Bench an issue whether the police are duty-bound to register an FIR on receipt of information of the commission of a cognisable offence or there is discretion on their part to order a preliminary probe before registering it”. The Hindu reported that: “The Bench cited earlier judgments which gave conflicting decisions”; and that: “Certain other judgments held that the police officer was not obliged to register an FIR „but a discretion lies with him/her in appropriate cases to hold some sort of preliminary enquiry in relation to the veracity or otherwise of the accusations made in the report‟”. Extracts follow:

“One of the questions which has been posed in this writ petition is whether, upon receipt of information by an officer in-charge of the police station disclosing a cognisable offence, it is imperative for him/her to register a case under Section 154 of the Code of Criminal Procedure 1973, or a discretion lies with him/her to make some sort of preliminary enquiry before registering the same,” said a Bench consisting of Justices B.N. Agrawal and G.S. Singhvi.

Conflicting decisions

The Bench cited earlier judgments which gave conflicting decisions. Some judgments held that an officer in-charge of the police station was obliged under law to register a first information report on receipt of a complaint. Certain other judgments held that the police officer was not obliged to register an FIR “but a discretion lies with him/her in appropriate cases to hold some sort of preliminary enquiry in relation to the veracity or otherwise of the accusations made in the report.”

“In view of the conflicting decisions of this court, we feel that it is necessary to refer the matter to a larger Bench. Let this petition be placed before the Chief Justice of India for passing appropriate orders to list the case before a larger Bench. In view of the interim order passed by this court, we feel that it would be expedient to hear this petition at an early date.”

By its interim order, the Bench had directed all States to instruct the police to register an FIR on receipt of a complaint. In their response, most of the States took the stand that registering an FIR first, carrying out an investigation and then making arrests would breed corruption as in many cases the allegations were reckless. Some States cited witch-hunting by politicians in registering an FIR on the basis of false allegations („Which comes first, FIR or preliminary probe at discretion?‟ 2008, The Hindu, 18 December http://www.hindu.com/2008/09/18/stories/2008091856271300.htm – Accessed 1 May 2009 – Attachment 25).

Transparency International‟s October 2005 India Corruption Study, “the largest corruption survey ever undertaken in the country with a sample of 14,405 respondents, spread over 151 cities and 306 villages of 20 States”, found that payment of a bribe was regularly required at a police station in order to facilitate the registration of an FIR. Of those respondents who had “interacted with Police” 47% claimed to have had to pay a bribe in order to register an FIR. More generally, of those respondent who had interacted with police “87% perceived Police to be corrupt” and “[m]ore than 80% claimed to have paid [a] bribe to Police to get service in [the] last one year”. The report provides the following information on the services for which police bribes are paid. Most prominent among these services is the initiation of a First Information Report (FIR). The information follows:

2.5.3 Services for which Bribes are Paid First Information Report (FIR) is a very important document as it sets the process of criminal justice in motion. It is only after our FIR is registered in the police station, the Police takes up investigation of the case. Unfortunately, this leaves the Police in a dominant position of determining when and which criminal incident to register and which one to ignore. As a result, citizen is forced to bribe or exert influence to register an FIR. Also people very frequently pay for avoiding challans for various offences like traffic law violations. However, a lot of this corruption may also be due to laxity in traffic preventive measures resulting in citizen‟s disregard for traffic rules. As a result, people very frequently break traffic rules and, when caught, tend to pay bribe to the police officials.

Table 2.9: Services for which Bribes are Paid for (Figures in per cent) Staffing of Police Services High Medium Low Total 1. Registering FIR 64 33 51 47 2. For avoiding being 07 24 13 16 challaned for traffic offences 3. For avoiding arrest/ 09 10 14 11 serving of notices 4. Other activities 07 12 06 08 (bail, other challan, etc.) 5. Avoiding arrest 05 08 06 06 6. Verification of Passport 05 05 06 05 7. Ensuring the case is followed up actively 03 08 04 05 8. Verification for Job 02 03 00 04 9. Filing of charge sheet 04 03 03 03 in the Court

Note: Multiple answers. (Transparency International India 2005, India Corruption Study 2005, October, pp.5, 29 & 34 http://www.tiindia.in/data/files/India%20Corruption%20Study- 2005.pdf – 18 October 2006 – Attachment 27).

4. With regard to the possibility of relocation, please identify other areas of relative safety where significant Muslim communities reside.

Information addressing these issues follows below under the following subheadings:  Freedom of movement and relocation in India;  Malayalam speaking communities in India;  and: Muslim communities outside Kerala.

Freedom of movement and relocation in India

The UK Home Office‟s April 2008 operational guidance note for India expresses the view that for adult male Muslims, and a Muslim family in the care of an adult male Muslim, “as a general rule, an internal relocation option exists from one Indian State to another”. The situation is said to be different for women not in the company of a male, who are more vulnerable to harm in such circumstances. The relevant extract follows:

3.8.17 Internal relocation. The law provides for freedom of movement and the government generally respects this in practice, however, in certain border areas the government requires special permits. Therefore, as a general rule, an internal relocation option exists from one Indian State to another. The situation as regards internal relocation for single women, divorcees with or without children, and widows may differ from the situation for men as it may be difficult for women on their own to find secure accommodation. Although rents are high and landlords are often unwilling to rent to single women, there are hostels particularly in urban areas where a large number of call centres provide employment. The situation for women with children is likely to be more difficult as children may not be accepted in hostels. Illiterate women from rural areas are likely to find it particularly difficult to obtain accommodation as a lone woman. For some women in India relocation will not be unduly harsh but this is only likely to be the case where the individual is single, without children to support and is educated enough to be able to support herself. Some single women may also be able to relocate to live with extended family or friends in other parts of the country. However, where these circumstances do not apply internal relocation is likely to be unduly harsh (UK Home Office 2008, Operational Guidance Note: India, April p.12 http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/countryspecificasyl umpolicyogns/indiaogn?view=Binary – Accessed 1 May 2009 – Attachment 28).

It should be noted, however, that while Indian citizens generally enjoy freedom of movement and the ability to relocate to whichever Indian state or territory they choose, there are restrictions on relocation to Jammu & Kashmir. Advice from the Department of Foreign Affairs and Trade, dated 13 October 2003, notes as follows with regard to freedom of movement in India:

Indian citizens have the freedom to relocate from one area of India to another, with two exceptions: in the state of Jammu and Kashmir, Indian citizens from other states are not allowed to buy property, but can stay in any part of the state without seeking official permission. Indian citizens who are not residents of the particular area are required to obtain a permit to visit some border areas of Jammu and Kashmir, and border areas in the north- eastern states of India. The permits are valid for six months. Indian citizens who have been arrested and released on bail are required to report regularly to local police authorities. In these instances judicial permission is required to relocate to another part of the country (Department of Foreign Affairs and Trade 2003, DFAT Report No. 519 – India: RRT Information Request: IND16042, 13 October – Attachment 31).

Malayalam speaking communities in India

The Census of India website provides extensive details, source from its 2001 census, on the number of language speakers of all the major language groups in each of India‟s states and territories. According to the table titled, „Part A: Distribution of the 22 Scheduled Languages- India/ States/ Union Territories – 2001 Census‟, there were 33,066,392 Malayalam speakers in India in 2001 with the vast majority, 30,803,747, in Kerala. Nonetheless, there were also significant numbers in neighbouring (701,673) and (557,705) as well as in more distant locales such as Maharashtra (406,358) and Delhi (92,009) („Part A: Distribution of the 22 Scheduled Languages- India/ States/ Union Territories – 2001 Census‟ (undated), Census of India website http://censusindia.gov.in/Census_Data_2001/Census_Data_Online/Language/parta.htm – Accessed 1 May 2009 – Attachment 29).

Muslim communities outside Kerala

In November 2006 the Indian national government published an extensive report, compiled by the Rajinder Sachar Committee, on the situation of Muslims across India, The Social, Economic and Educational Status of the Muslim Community of India, a Report. Known as the Sachar report this 400 page plus document provides national and state and territory information on the livelihood conditions for Muslims across India. On page 273 the report provides a table detailing the Muslim population in India‟s various states and territories in 2001. Muslim communities are prominent in the following states and territories (the figures below give the percentage and then the total number of Muslims in the state or territory at 2001):

 West Bengal … 25.2% 20.24 million  Kerala … 24.7% 7.86 million  Uttar Pradesh incl. Uttaranchal 18.2 31.75 million  Bihar incl. Jharkhand … 15.9% 17.45 million  Assam … 30.9% 8.24 million  Karnataka … 12.2% 6.46 million  Delhi … 11.7% 1.62 million  Maharashtra ` … 10.6% 10.27 million  Andhra Pradesh … 9.2% 6.99 million  Gujarat … 9.1% 4.59 million  Rajasthan … 8.5% 4.79 million  Madhya Pradesh incl. Chhattisgarh 5.2% 4.25 million  Tamil Nadu 5.6% 3.47 million  Jammu & Kashmir* … 67.0% 6.79 million (* But it must be noted that there are restrictions on relocation to Jammu & Kashmir; see the DFAT advice above). The Sachar report finds favourably of the situation for Muslims in Tamil Nadu in a number of regards. Taking education enrolment rates as a key indicator of social development the report notes favourably of both Kerala and Tamil Nadu as follows:

Enrolment rates are above 90% in Kerala and Tamil Nadu, and satisfactory (above 80%) in Karnataka, Maharashtra and Delhi. The difference in enrolment rates is also small in states like Kerala, Karnataka and Maharashtra. But it needs to be noted that in none of the states are current attendance rates amongst Muslims higher than that of the remaining population. On the contrary, there is a significant difference in enrolment rates in states like West Bengal, Uttar Pradesh, Assam, Andhra Pradesh, and some smaller states (Figures 4.6 and 4.7). (p.58) (Prime Minister‟s High Level Committee, Government of India 2006, Social, Economic and Educational Status of the Muslim Community of India, Indian Ministry of Minority Affairs website, November – http://minorityaffairs.gov.in/newsite/reports/sachar/sachar_comm.pdf – Accessed 10 April 2008 – Attachment 32).

The Sachar report also finds that: “While there are variations in the conditions of Muslims across states, the situation of the community in urban seems to be particularly bad in relative terms in almost all states except Kerala, Assam, Tamil Nadu, Orissa, Himachal Pradesh and Punjab” (p.162). Muslims also do well in Tamil Nadu in terms of government employment.

Three other States which show Muslim representation in government jobs as more than 50% of their population shares are Karnataka (70%), Gujarat (59 %) and Tamil Nadu (57 %). All other States show the representation of Muslims as less than half of their population share (p.171) (Prime Minister‟s High Level Committee, Government of India 2006, Social, Economic and Educational Status of the Muslim Community of India, Indian Ministry of Minority Affairs website, November – http://minorityaffairs.gov.in/newsite/reports/sachar/sachar_comm.pdf – Accessed 10 April 2008 – Attachment 32).

A November 2007 article, published on the website of the Centre for the Study of Society and Secularism, argues that India‟s southern states of Kerala and Tamil Nadu have been relatively free of the communal tension which have troubled other parts of India because both the Hindu and Muslim populace within these states are often part of the same language community. Malayalam is singled out as a language that cuts across all three states and both the Hindu and Muslim demographic.

In post-independence India too states like Kerala and Tamil Nadu were formed on the basis of language and hence Hindus and Muslims continued to speak Malayalam and Tamil Nadu respectively in both these states. In Karnataka, however, Muslims in urban areas spoke Deccani dialect of Urdu (in certain areas of Tamil Nadu too Muslims in some urban areas spoke Deccani Urdu but overwhelming Majority spoke Tamil) and there was often tension between Kannada speaking Hindus and Deccani Urdu speaking Muslims (Engineer, A,A. 2007,‟BJP Enters Portal of Power In South‟, Centre for the Study of Society and Secularism website, 16-30 November http://www.csss- isla.com/archive/archive.php?article=2007/nov16_30.htm – Accessed 1 May 2009 – Attachment 30).

List of Sources Consulted

Internet Sources: Google search engine http://www.google.com

Databases:

FACTIVA (news database) BACIS (DIAC Country Information database) REFINFO (IRBDC (Canada) Country Information database) ISYS (RRT Research & Information database, including Amnesty International, Human Rights Watch, US Department of State Reports) RRT Library Catalogue

List of Attachments

1. „Marad – more arrested‟ 2003, The Hindu, 11 May. (FACTIVA)

2. „RSS-Kerala‟ 2003, Press Trust of India Limited, 9 May. (FACTIVA)

3. Radhakrishnan, M.G. 2003, „Blood on the Beach‟, India Today, 19 May http://www.indiatoday.com/itoday/20030519/states.shtml – Accessed 1 May 2009.

4. „RSS blames it on Muslim terrorists‟ 2003, The Hindu, 5 May http://www.hinduonnet.com/2003/05/05/stories/2003050502760400.htm – Accessed 1 May 2009.

5. „League behind Kerala killings – BJP‟ 2003, The Hindu, 6 May. (FACTIVA)

6. „Sangh Parivar planning violence: NDF‟ 2003, The Hindu, 4 May http://www.hinduonnet.com/thehindu/2003/05/04/stories/2003050404070400.htm – Accessed 1 May 2009.

7. „NDF behind massacre: Pinarayi‟ 2003, The Hindu, 5 May http://www.hinduonnet.com/2003/05/05/stories/2003050502780400.htm – Accessed 1 May 2009.

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