BRIEFING FOR UK MEPs – ASHLEY FOX

This briefing on a range of human rights issues has been prepared by the Sikh Federation (UK) for UK MEPs to enable actions to be taken in conjunction with Sikh constituents.

The briefing is split into four parts:

Part 1 – Update on the Death Penalty in Part 2 - Examples of extra-judicial killings of Sikhs by the Indian police in the last two years Part 3 – Indian politicians facing criminal charges: True face of Indian democracy Part 4 - India’s judicial system that has failed the Sikhs

The specific actions required are:

1) To increase pressure at the European level on the Abolition of the Death Penalty in India 2) To ensure human rights concerns are raised with India at every opportunity and not ignored in the interests of trade

Key request: Group of MEPs to organise/sponsor a conference in the European Parliament on the Abolition of the Death Penalty in India and continued human rights violations v EU trade with India

The Sikh Federation (UK) and its contacts across Europe have committed to bring 150-200 Sikh representatives from across Europe. It has been suggested the event should be towards the start of May. UK MPs have also said they will attend along with representatives of leading human rights organisations.

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PART 1 – UPDATE ON THE DEATH PENALTY IN INDIA Punishment by death is against the Universal Declaration of Human Rights and a “premeditated and cold-blooded killing of a human being by the state.” The first part of the briefing is split into a number of sections: Page

Section 1 – Background on the Death Penalty in India 3-4

Section 2 - The case of Professor Davinderpal Singh Bhullar 5-9

Section 3 - The case of Balwant Singh Rajoana 10

The death penalty is inhuman and degrading punishment. It is irreversible and can be inflicted on the innocent. It has never been shown to deter crime more effectively than other punishments. Therefore, the death penalty in India and all other countries should be abolished. India should honour Articles 3 and 5 of the Universal Declaration of Human Rights - right to life and not to be tortured or subject to any cruel, inhuman or degrading punishment.

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SECTION 1 – BACKGROUND ON THE DEATH PENALTY IN INDIA

At independence in 1947, India retained the 1861 Penal Code which provided for the death penalty for murder. It has been estimated that 3,000 to 4,000 executions occurred in India between 1950 and 1980. However, it is more difficult to understand the impact of the death penalty in India since the 1980’s. Amnesty International reported that information on the numbers of persons sentenced to death and executed in India in the last 30 years is much harder to measure. The Indian government does not make execution figures available. The Asian Centre for Human Rights (ACHR) reported that during the period 2001-2011, courts in India have sentenced 1,455 convicts to death, an average of over 130 a year. In 2007 the Sikh Federation (UK) supported the Sant’Egidio community and the World Coalition Against the Death Penalty to collect a 5 million signature petition that resulted in United Nations General Assembly resolution calling for a worldwide moratorium on executions. In fact, the international community had moved further towards abolishing the death penalty on 19 November 2012, when 110 countries approved a general assembly draft resolution calling for a moratorium on executions. India was part of a tiny minority that voted to retain capital punishment, arguing for it being used sparingly, and in cases of particularly heinous crimes.

Current Status On 21 November 2012 India ended its unofficial eight-year moratorium on executions when it hanged Ajmal Kasab and followed this on 9 February 2013 by hanging Afzal Guru. Both executions occurred in secrecy with families being informed after the executions had occurred. Pranab Mukherjee, India's President, has now ordered the death penalty for seven convicts in the last seven months, more than any other Indian President in the last 15 years. India is currently reporting one death penalty sentence every third day (Times of India, February 2013) and this before the recent knee jerk reaction to change the law to extend the death penalty following the horrific rape and murder in Delhi on 16 December 2012. Human Rights activists are worried this precedent could affect the 500 or so people on death row in India, including political prisoners, such as Professor Davinderpal Singh Bhullar and Balwant Singh Rajoana. As of 11 February 2013, there were 476 convicts on death row in India.

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When is the Death Penalty used in India? Despite a Supreme Court ruling in 1980 to use the death penalty in the “rarest of rare” cases, the Times of India reported that the principle is in itself faulty, as the interpretation of the principle is left to the discretion of individual judges who are vulnerable to fallible judgements based on fallible evidence. On 14 July 2012, retired judges asked India’s president to commute the death sentences of 13 inmates erroneously sentenced by the Supreme Court. This followed the court’s admission that some of these death sentences were rendered per incuriam (out of error or ignorance). In November, the Supreme Court conceded that the “rarest of the rare” standard has not been applied uniformly over the years and the norms on death penalty need “a fresh look”.

How is the death penalty used in India? Amnesty International, in their watershed report, India: Lethal lottery: The death penalty in India-A study of Supreme Court Judgments in Death Penalty Cases 1950-2006, found that a large proportion of sentences handed down in India: 1. Are based on circumstantial evidence alone 2. Have an absence of forensic facilities 3. Critical use of testimony of witnesses, but there is widespread acknowledgement of the use by police and prosecution of stock or professional witnesses In addition some death sentences have been imposed on people who may have been children at the time of the crime, and on people suffering from mental illness. The same report by Amnesty International found, a large number of cases where it is beyond doubt that whether an accused is ultimately sentenced to death or not is an arbitrary matter. A decision that is reliant on a number of extremely variable and often subjective factors, such as competence of legal representation, interests of the state in the case and even personal views of the judges. It was found that the seemingly arbitrary nature of decisions of sentence of death were selective and discriminatory. In the landmark case, in which Justice Bhagwati who had introduced the principle of ‘rarest of the rare’ commented “death penalty has a certain class bias inasmuch as it is largely the poor and the down trodden who are the victims of this extreme penalty. We would hardly find a rich or affluent person going to the gallows”.

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SECTION 2 - THE CASE OF PROFESSOR DAVINDERPAL SINGH BHULLAR

Name: Professor Davinderpal Singh Bhullar DOB: 25 May 1964 Age: 48 Education: Electronics Occupation: Lecturer Deported: from Germany January 1995 Imprisoned: India since 1995 – 18 Years Current Sentence: Death Row Tihar Jail New Delhi Son of: Balwant Singh Bhullar (deceased)

Background Professor Bhullar was a known political dissident who out of concern in the early 1990s investigated the disappearances of forty-two of his university students. The students were suspected to have been abducted by the Punjab police and extra-judicially killed. Bhullar’s investigations led to harassments from the police and had claimed that his life was at risk in India because of his political activism. His family was persecuted as evidenced by the 'disappearance' and extra-judicial killings of his father Balwant Singh Bhullar, uncle and best engineer friend by the notorious Punjab Police in January 1991. Mr Bhullar a lecturer at Guru Nanak Engineering College (GNE) Ludhiana decided to escape India for safer places. He went to Germany to seek asylum and reached on 18/12/94. He was detained, as the authorities were not convinced of his claim apparently because of false papers on him. He was deported under escort on 17/01/95 and handed over to the Indian police at Indira Gandhi airport, New Delhi by the Lufthansa staff. The Indian authorities gave specific assurances to the German authorities that Professor Bhullar had nothing to fear if he was returned to India and that he would not be tortured. He was arrested, detained and tried under the Terrorist and Disruptive Activities (Prevention) Act (TADA) upon arrival and he has now been in prison for over 18 years with the last eight years in solitary confinement with the daily threat of the gallows. The Professor's mental health has deteriorated over the last two years and it has become life threatening. In his absence the German courts (Verwaltungsgericht Frankfurt, Case 8E50399\94.A(1)) ruled that he should not have been returned as his life would be in danger in India - overruling the prior decision. By deporting someone to a death-penalty prone country Germany violated the European Convention on Human Rights and remains morally obliged to do all it can to seek the Professor's immediate release. He has a wife with whom he lived for a mere 16 days before these unfortunate circumstances intervened. His wife is now in Vancouver, Canada and continues the fight for his release.

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Case facts and commentary Mr Bhullar was charged with carrying false documents upon him under sections 419, 420, 468 and 471 of IPC and section 12 of Passport Act. He then allegedly disclosed to his involvement in an incident of attempted assassination of Maninderpal Singh Bitta (a congress politician in India). The attempted assassination of Mr Bitta occurred on 11/09/93. It involved an explosion in a parked car. Mr Bitta escaped with injuries, while some of his guards and associates died. Based on Mr Bhullar's confessional statement, Daya Singh Lahoria, was extradited from USA as co-accused on 23/08/95 for charges under section 20(A)(ii) of the TADA Act. However his co-accused Daya Singh Lahoria, who was charged on the basis of Mr Bhullar's statement, has been acquitted by the same designated court because Mr Bhullar's confessional statement could not be relied upon! According to Mr Bhullar, he was forewarned by the police that he would be eliminated by the Punjab police if he said anything other than yes. The Delhi police transferred him to the infamous Punjab police for 2 months. The Punjab police are notorious for extra-judicial executions and torture. The Supreme Court itself has granted people the protection of the Central Reserve Police Force, against the Punjab police.

The evidence On being handed over to the Indian police in Delhi by airline staff, Mr Bhullar was taken into detention. The police allege that he volunteered a confession, which was typed on a computer while Mr Bhullar spoke but according to the authorities the secretary forgot to save the confession on the computer. TADA requires the confession to be handwritten or an audio/video record of it to be kept. The authenticity of typed confessions is doubted in the courts. According to the prosecution he had a cyanide pill on him upon arrival from Frankfurt that he tried to commit suicide with. Mr Bhullar argues that he was made to sign on blank pieces of paper, which were later filled by a statement written and typed in by the police, under threat that if he did not sign he would be terminated by the Punjab Police in a false encounter, which is a very real threat. His own father had been disappeared by the Punjab police. Amnesty International has stated “Since 1983…scores of those arrested have been tortured to death or have otherwise been deliberately and unlawfully killed in Custody…while others have simply “disappeared”, the security forces refusing to acknowledge that they had been arrested.” Mr Bhullar was examined by a police assigned medical doctor. Although a highly educated man, Mr Bhullar’s medical examination document is co-signed by him by a thumb print. Mr Bhullar wrote to the court at the first opportunity of release from Punjab police custody to judicial custody, claiming that the ‘confession’ was involuntary and obtained under torture and fear of death. The investigating officer, who is alleged to have obtained Bhullar’s statement, denied in court that the said statement was not the one he had actually taken from the accused. The officer went as far as saying that even his signature on the said statement had been forged. Mr Bhullar has continually maintained that he has never made any ‘said’ statement. There has been no recovery of any incriminating evidence against Mr

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Bhullar and there has been no identification by any individual of the accused in connection with this case.

The witnesses The case against him is based on information that is highly dubious. No corroborative evidence has been offered by the prosecution. None of the 133 witnesses produced by the prosecution identified Mr Bhullar, many witnesses claimed he was not the man they had seen. One prosecution witness, a rickshaw worker in Delhi, informed the court that he had no knowledge of the case but he was forced and threatened to provide a false statement by the police.

The court proceedings On 24/08/01 Mr Bhullar was convicted by a 'Designated' court which then passed the death sentence on 25/08/01. Designated courts are special courts enacted under TADA. Under TADA an accused is considered guilty unless proven otherwise! Under Indian Evidence Act, a confession statement to the police in the absence of a magistrate cannot be submitted as evidence. However under TADA this is admissible in Designated Courts. Therefore the sole evidence produced is unsound according to normal Indian judicial procedure. The Designated court considered the apparent suicide attempt by cyanide as 'further' evidence.

The Supreme Court verdict: Virtually every legal system around the world is based on ‘proof beyond reasonable doubt’ and respects procedures to obtain ‘safe’ evidence. The Supreme Court of India seems to have departed from these in the most important of all cases, that of death penalty, thus setting a new precedent for Indian law. While the leading Judge, Justice M B Shah concentrated on the facts of the case in acquitting him, Justice A Pasayat chose political rhetoric to find Davinderpal Singh guilty, resulting in contradictory arguments and judgments. Justice Shah went on to say that Davinderpal Singh could not be found guilty of conspiracy as this would require by definition that he conspired with another and as others named in the confession statement are acquitted, it is impossible for him to conspire with himself. He was also not convinced by the authenticity of the confession. Contrary to procedure, the confession was neither handwritten nor recorded but typed on a computer on which it was not saved. However, in stark contrast, the other two judges convicted him arguing, extraordinarily that proof “beyond reasonable doubt” should be a “guideline, not a fetish.” And that procedure is only “a handmaiden and not the mistress of law.” In cases of a split decision, the death penalty is not handed down. However, while Mr Bhullar’s case was being considered by the Supreme Court, Kashmiri militants attacked the Lokh Sabha (the lower house of the Indian parliament) on 13th December 2001. Many observers believe that heightened rhetoric about the threat of “terrorism” in India and a hardening of government views and policies may have influenced the judges’ decision.

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The Legislation TADA was a controversial law that was not only contrary to international law, but considered to be unconstitutional by some authorities. Although allowed to lapse under international pressure, cases predating its lapse are still tried. TADA was strongly condemned by the United Nations and virtually every international institute that examined it. In it the burden of proof is transferred to the accused. Designated courts under TADA are the only courts in which a confession made to a police officer is admissible evidence, this deviates from the Indian Evidence Act sections 25 and 26, under which confessions made to police officers are not admissible. The procedures laid out in TADA resulted in 76,000 detentions, less than 1.8% of which actually reached conviction, despite this highly extraordinary rate of failure, the Supreme Court of India has relaxed these procedures further. Despite being a signatory to the Convention Against Torture, which is yet to be ratified by India, it is well known that torture remains a pervasive and daily practice in every one of India’s 25 states, as acknowledged by Amnesty International, Human Rights Watch and the State Department (US). This was made even more apparent by the statement of Nigel Rodley (UN Special Rapporteur on Torture) that “torture is endemic in India.” The Chahal case brought this very fact to the attention of the European Courts where the Judges unanimously considered that human rights violations in India were gross enough to stop Mr Chahal being sent back there by British authorities saying that while they respected the assurances of the Indian authorities to treat him according to law, they could not rely on them.

Recent activities While he was waiting for the death sentence, Mr Bhullar was convicted of other charges by the Punjab Police. However on the 1 December 2006 in the and Haryana High Court the judge acquitted Mr Bhullar on the basis of lack of evidence. Sh R.S. Baswana Additional Sessions Judge held that there was no evidence on file to link the accused with the other alleged crimes and despite the fact that the prosecution had 15 years to gather evidence against Mr Bhullar, they were unable to produce evidence linking Mr Bhullar to the case against him. Irrespective of this Mr Bhullar has been sentenced to death by execution. Mr Bhullar’s only hope of clemency now lies with the new Indian President, Pranab Mukherjee, under article 72 of the Constitution of India even though previous pleas to the President have failed. Each day for the last eight years the Professor has been held in solitary confinement spending 22 hours in a 9x7 cell and he now wakes up thinking this will be his last day. This has been a torture worse than death and it is no surprise that his mental state has been very poor for the last two years.

Final decision on Professor Davinderpal Singh Bhullar could come in days . . .

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On 20 February 2013 the Supreme Court linked the fate of a number of other death row convicts where the mercy plea has been rejected by the Indian President to Mr Bhullar’s case. In April 2012 Mr Bhullar’s lawyers moved in the Supreme Court to commute the death penalty on the ground that he had become a mental wreck, vacillating between life and death, during the eight years for which his mercy petition was kept pending before being rejected by the President in 2011. A two-judge bench had heard arguments on behalf of Mr Bhullar and perused records of all mercy pleas decided and pending with the President and governors before reserving verdict 10 months ago in April 2012. On 20 February 2013 the Supreme Court took note of the fact that the judgment on Mr Bhullar's petition had been reserved and pushed for it to be delivered soon – in days or weeks. From information available to the Sikh Federation (UK) the fear is the political pressure is to rule against Mr Bhullar, although his case if very different (controversial split judgement, conspiracy case based on dubious confession, extradited from Germany etc.). This would open the possibility of 17 other hangings in a matter of a few days or weeks.

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SECTION 3 - THE CASE OF BALWANT SINGH RAJOANA

Balwant Singh Rajoana joined the Punjab Police in 1986. According to his elder brother Kulwant Singh, Balwant Singh was a pacifist and was opposed to any kind of violence. In Punjab between 1992 and 1995 the Indian government was aggressively seeking to control the Sikh separatist movement. During this period, the Chief Minister was . During Beant’s Singh tenure it has been widely reported the police and paramilitary forces were responsible for the killing of more than twenty-five thousand Sikhs who were either disappeared or were killed and their bodies cremated by the police in extrajudicial executions. In 1995 Balwant Singh, who was a police constable at that time, conspired with Dilawar Singh, another police officer, to kill Beant Singh as they had witnessed the former Chief Minister of Punjab, Beant Singh, order the mass killing of innocent Sikhs - men, women, and children and reward officials that carried out the cold blooded murders with promotions. Various reports suggest that these human rights violations against Sikhs in Punjab were not random acts of violence, but rather part of a specific plan used by security forces. Dilawar Singh used explosives to kill Beant Singh on 31 August 1995 that also resulted in his own death. Balwant Singh was his back up. In December 1997 Balwant Singh “openly confessed” his involvement and strongly expressed no faith in the Indian judiciary. He refused to defend himself and refused to take a lawyer. He accused Indian courts of applying dual standards of law and the Indian judicial system of shielding the culprits of the genocide of Sikhs in November 1984. Balwant Singh is quoted as saying: ‘Asking for mercy from them (Indian courts) is not even in my distant dreams’. In a letter to the Chief Justice of the High Court, he complained about discrimination at the hands of the country's judicial system and the rulers. Balwant Singh has defended his actions citing the June 1984 attack on the Golden Temple Complex and the mass killing of Sikhs during the November 1984 genocide. He claims the Judiciary and State are themselves guilty of having failed to apprehend and punish the former Chief Minister of Punjab, Beant Singh, for crimes against humanity. Balwant was sentenced to death by a special CBI court. On 5 March 2012, a sessions court in Chandigarh ordered his execution on 31 March 2012 in Central Jail, but India's Home Ministry stayed the execution on 28 March due to worldwide protests by Sikhs that the execution was unfair and amounted to a human rights violation and following a clemency appeal filed by the Shromani Gurdwara Parbandak Committee (SGPC). Commenting on the stay of his execution, Balwant singh said, I have dedicated my life to the Panth (referring to the Sikh masses) and have no regrets. So the stay doesn't make any difference to me". He also added, "This is a victory of real Khalsa Panth after every member of the Sikh Nation rose to the occasion and successfully conveyed the strength of the Khalsa religion. I am ready to be hanged at any time and will live till the God permits me. My happiness over the stay shouldn't be considered as my weakness. I am happy because the Sikh Nation has shocked the walls of the Delhi government, not because my hanging has been postponed." PART 2 – EXAMPLES OF EXTRA-JUDICIAL KILLING OF SIKHS BY THE POLICE IN THE LAST TWO YEARS

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In recent times the Indian authorities have returned to eliminate Sikhs and political opposition through extra-judicial killings without having to take cases to court and secure prosecutions. For example, cases where Sikhs have been killed in the last two years or so include: 18 January 2011 – 24-year old Shaminder Singh Shera was illegally detained by police in Nawanshahar and subjected to severe torture for 18 days while officers tried to coerce a false confession of his involvement in 'terrorist' activities. Upon his escape in November, Shaminder appeared on public television and revealed how he was subjected to third-degree torture and declared his desire to pursue legal means of redress. In early January, the Punjab & Haryana High Court cleared him of all terrorism related charges and ordered action against the police officers responsible. A week later, Shaminder was attacked by a gang of masked men who beat him to death - leaving the investigation and action against the police at a standstill. 7 March 2011 - Sohanjit Singh was arrested for alleged “terrorist activities.” A week later, various news outlets reported his death under “mysterious circumstances.” Though police officials tried claiming Sohanjit Singh hung himself with a small turban from an 8 ft. high ceiling, the family unequivocally stated that he was killed as a result of police torture. Speaking with the media, Sohanjit Singh's wife described her last meeting with her husband in prison where Sohanjit Singh was unable to walk independently and bore clear signs of torture including burn marks from hot irons. She also revealed that Sohanjit Singh told her that he was worried the police may kill him. 9 January 2012 – 17-year old Veer Singh was picked up from his home by police on January 8 and his dead body was dropped off at the hospital the next morning. His family alleged he was picked up, tortured and killed by police although the state has refused to further investigate the case. In an interview with local media, Veer Singh's mother alleged that the police began threatening her family with dire consequences if they continued pursuing action against the police officers responsible. She elaborated that the same officers who arrested Veer Singh had threatened to kill her second son and implicate her in countless false cases if she did not agree to drop the charges. 14 February 2012 - Kulwant Singh, an inmate at Central Amritsar Jail, passed away after sustaining severe burns caused by a suspicious fire in his jail cell. He was admitted to Guru Nanak Dev Ji Hospital in critical condition after suffering 50% burn injuries and major damage to his vital organs. Although authorities and fellow inmates refused to comment, the jail superintendent, Rashpal Singh, tried to suggest that the incident was the result of an

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attempted suicide. This is not the first time Kulwant Singh had been admitted to the hospital since his incarceration began in July of 2010. He was previously admitted to the same hospital with life threatening injuries as a result of police torture in August of the same year. When he was brought to the hospital the first time, Dr. Saurabh Dhanda said “there were electric shock injuries on his ears and private parts. Kulwant’s stomach also had injuries owing to severe beating with batons.” Kulwant Singh was one of the individuals linked with Pal Singh of France and picked up by police in a spate of arrests made in the summer of 2010. Pal Singh was picked up from his home on 22 July and illegally detained in an undisclosed location until his arrest was declared on 28 July along with the fabricated claim that he was discovered with a huge cache of arms. 29 March 2012 - 18-year-old Jaspal Singh was killed by police bullets in an unprovoked firing on a peaceful protest in support of Balwant Singh Rajoana. In a report released on 16 May 2012 Lawyers for Human Rights International presented evidence that concluded senior police officials worked to shield the police officers responsible for firing bullets at the group of young Sikhs. They also argued that to weaken the case, fraudulent evidence and facts were being created by the police. In addition, Sikh opposition leaders continue to be illegally detained and tortured: September 20, 2012 – Kulbir Singh Barapind, the acting president of a leading opposition political party and an elected member of the SGPC (the governing body of all Sikh Gurdwaras in Punjab) and Daljit Singh Bittu, the outgoing president of the Shiromani Akali Dal Panch Pardani party and a political activist in Punjab were illegally arrested and tortured by police officials. Under Director General of Police Sumedh Saini's authorization, Barapind and Bittu were falsely accused on a wide range of charges such as the possession of explosives however; the police were unable to produce such evidence. Other charges against the two men included possession of seditious literature, a claim made all the more ludicrous by the fact that all the books found in Barapind's home were available in bookstores around the country and widely available on the internet. Regardless, both men were detained and tortured through methods such as electric shock under police custody.

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PART 3 – INDIAN POLITICIANS FACING CRIMINAL CHARGES: TRUE FACE OF INDIAN DEMOCRACY Andrew North reported the following in February 2013 for BBC Newsnight on how many Indian politicians are accused of rape, murder and other serious crimes. Manoj Kumar Paras is meeting constituents in a covered yard outside his home, many desperate for his help. He is a minister in the state government in India's Uttar Pradesh state. Mr Paras is also charged with taking part in the gang-rape of a local woman. But six years since Mr Paras was first charged, his case has neither been prosecuted nor dismissed. The Indian government has promised speedier justice for crimes against women, shaken by protests over the fatal gang rape of a Delhi student. Five of the accused are already on trial in a hastily-established fast-track court. A sixth accused, who is a minor, is being tried in a juvenile court.

Not unusual The outcry over the Delhi gang rape has prompted a wider backlash against the old order, and the number of Indian politicians allowed to remain in office while facing serious charges is under the spotlight again. Mr Paras' case is far from unusual.

CRIME FACTS

 1,448 of India's 4,835 MPs and state legislators have declared criminal cases  641 of these 1,448 are facing serious charges like murder, rape, kidnapping  44 of 206 Congress party MPs have declared criminal charges  6 legislators in state assemblies are facing rape charges  29 of 58 ministers in Uttar Pradesh state have criminal records

According to the Association for Democratic Reforms (ADR), a Delhi-based campaign group, a third of India's 4,835 elected representatives have declared criminal charges against them - many of them face serious cases like murder, rape and kidnapping. The figures are based on information politicians themselves provide in their mandatory pre- election declarations. Uttar Pradesh has more alleged criminals in its administration than any other state: Mr Paras is among 29 of 58 ministers charged with some kind of crime. The state transport minister, Mehboob Ali, is charged with attempting to murder a rival politician, Nawshad Ali, last year. He shows us the charge sheet drawn up by police, called FIR (first information report) in India. But the minister disputes whether he has been charged.

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"Maybe there is a complaint in a court or a police station," he says. "Maybe after an investigation, it might be found to be untrue." On his election declaration, he has admitted to other past attempted murder charges, as well as kidnapping and robbery. So far, there has been no progress in any of these cases. Mr Paras says everyone in his Nagina constituency knows about his rape charge, insisting that it is "a conspiracy" fabricated by rivals. That's possible in India's robust politics. But it can be rare for women to press charges of rape - especially in rural areas like Nagina where tradition and caste govern life. Many do not even report an assault because of the fear they will be ostracised by their family and community.

'Tainted' politicians However serious the charge, as long as a politician is not convicted, he or she can stay in office under Indian law. They are helped by the overloaded justice system, where even minor cases can drag out. But ADR's national coordinator Anil Bairwal says politicians can also use their position to delay their cases "not just for years, but decades". Until India's courts try more politicians, Mr Bairwal says the "poison" will spread through the world's so-called largest democracy. When Uttar Pradesh's Chief Minister Akhilesh Yadav took power last year, he pledged not to appoint "tainted" officials to his government. His office would not agree to an interview, despite repeated requests. Other parties, including the Congress, have made similar pledges. Yet, ADR figures show, the number of accused politicians keeps rising. Parties need them to deliver votes, especially where religion and caste play such a key role. Mr Mehboob Ali has a proven track record at delivering votes from his fellow Muslims in his constituency, winning four elections in a row. Mr Paras won by nearly 30,000 votes last year in Nagina, with a particular appeal among members of his Dalits or untouchable caste. With a general election due in the next year, "India's democracy is in danger", warns Gopal Subramaniam, a former solicitor general and one of the authors of the Verma Commission report into the Delhi gang rape case. Their report called on all politicians facing serious charges to resign - coming into line with many other democracies. But Mr Paras rejects the idea of standing down: "Just charging someone is not enough, you have to wait until you are convicted."

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PART 4 – INDIA’S JUDICIAL SYSTEM THAT HAS FAILED THE SIKHS

The Indian Judicial system is a continuation of the British legal system established in the mid- 19th century and is based on a hybrid legal system in which customs; precedents and legislative law have validity of law. The Constitution of India is the supreme legal document of the country.

India’s supreme legal document, the Indian Constitution fails to recognise the Sikhs as a separate religion and over the years has been amended to deny basic human rights and specifically target Sikhs in Punjab. The Constitution of India (promulgated in 1950) is the longest constitution ever written and is seen as the supreme legal document of the country. Article 25 states individual members of the Sikh, Jain, and Buddhist religions will be referred to as Hindus. Sikhism, Jainism, and Buddhism are therefore considered merely sects of Hinduism. Sikh representatives did not accept the Constitution in 1950 as it is at odds with the teachings and roadmap laid down by the Sikh Gurus and refused to sign the Indian Constitution. There have been 118 Amendment Acts approved in the Indian Parliament to amend the Constitution. However, Article 25 is unique in that it has thus far been spared from amendment. In the 1940s, a prolonged negotiation transpired between the British and three groups seeking political power - the Hindus, the Muslims and the Sikhs. The British were an active party and witnesses to an agreement that provided constitutional safeguards for Sikhs. Additionally, the Sikhs were continually reassured regarding the Constitution by the likes of Mahatma Gandhi and Jawaharlal Nehru. Over the years there have been a number of controversial changes to the Indian Constitution to deny basic human rights, such as:  restrictions to the right to freedom of speech and expression (1st Amendment in 1951)  restrictions on the fundamental rights "in the interest of the sovereignty and integrity of India" (16th Amendment in 1963)  restrictions on the Supreme Court of India and High Courts and special provisions for dealing with anti-national activities during the State of Emergency from 1975-1977, requirement on the President to act in accordance with the advice of the Prime Minister and the cabinet and enlarged central power to intervene in the states (42nd Amendment in 1976)  declaration of a state of emergency in Punjab to allowed for the suspension of the rights to life and liberty, habeas corpus, freedoms of speech and association, and the guarantee of fundamental rights (59th Amendment in 1988)

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The Indian judicial system is dysfunctional A properly functioning judiciary is the guarantor of fairness and a powerful weapon against corruption. But the experiences of the judicial system in India fall far short of this ideal. India’s judiciary is considered overbearing and democratically unaccountable. Corruption in the judiciary goes beyond the bribing of judges. Court personnel are paid off to slow down or speed up a trial, or to make a complaint go away. Judges are also subject to pressure from above, with legislators or the executive using their power to influence the judiciary, starting with skewed appointment processes. Citizens are often unaware of their rights, or resigned, after so many negative experiences, to their fate before a corrupt court. Court efficiency is also crucial, as a serious backlog of cases creates opportunities for demanding unscheduled payments to fast-track a case.

Judicial backlog Indian courts have large backlogs or cases pending. For instance, the Delhi High Court has a backlog of 466 years according to its chief justice. In the Uttam Nakate case, it took two decades to solve a simple employment dispute. The Government of India accepts that there is a 40% shortage of judicial staff. Opposition and ruling party's corrupt politicians profit from the delays in the system. On 12 January 2012, a Supreme Court bench said that the people's faith in the judiciary was dwindling at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It acknowledged serious problems such as:  the large number of vacancies in trial courts  unwillingness of lawyers to become judges  failure of the apex judiciary in filling vacant High Court judges posts It wanted to seek answers from the government on amicus curiae’s suggestion that access to justice must be made a constitutional right and consequently the executive must provide necessary infrastructure for ensuring every citizen enjoyed this right. It also wanted the Government of India to detail the work being done by the National Mission for Justice Delivery and Legal Reforms. In October 2012 the BBC reported on the case of Mohammed Idrees, a Pakistani who was held under Indian police control for approximately 13 years for overstaying his 15 day visa by 2-3 days after seeing his ill parents in 1999. Much of the 13 years was spent in prison waiting for a hearing, and more time was spent homeless or living with generous families. Both states denied him citizenship, leaving him stateless. The Indian People’s Union for Civil Liberties decried his mistreatment. The Indian Human Rights Law Network told the BBC that the cause was "officials in the home department", including the slow court system, and called the case a "miscarriage of justice, a shocking case".

Judicial corruption Corruption is rampant in India's courts. According to Transparency International, judicial

16 BRIEFING FOR UK MEPs – ASHLEY FOX corruption in India is attributable to factors such as "delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws". A countrywide survey of "public perceptions and experiences of corruption in the lower judiciary,'' conducted by the Centre for Media Studies, found that a very high 77 percent of respondents believe the Indian judiciary is corrupt. The Global Corruption Report 2007 stated that ‘'bribes seem to be solicited as the price of getting things done''. It estimated the amount paid in bribes in a 12-month period was around 580 million US dollars. However, no case of judicial corruption has ever been put on trial in India. Under the Indian system, it is virtually impossible to charge or impeach a judge. In India, impeachment is not feasible because it requires a huge (two-thirds) majority in Parliament. This "freedom" from prosecution and impeachment further compounds the credibility crisis of the judiciary, in particular, the higher judiciary, which in India is a self- appointing entity not answerable to the legislature or executive. Another factor is the low ratio of judges per one million population. This is as low as 12 to 13 in India, compared to 107 in the U.S., 75 in Canada and 51 in Britain. This high workload encourages delays and adjournments on frivolous grounds. The judicial system, including judges and lawyers, has developed a vested interest in delays as well as corruption; it promotes a collusive relationship between the different players". The Supreme Court and many High Courts have redefined their roles: from defenders of human rights and Constitutional freedoms, and guardians of the public interest, to conscious promoters of neo-liberal globalisation, with unrestricted freedom for capital and shrunken rights for the ordinary public. Most disturbing is the fact that corruption has reached the highest judicial forum i.e. Supreme Court of India. Some notable cases include:

1. In December 2009, noted social activist, campaigner for judicial accountability and a Supreme Court lawyer Prashant Bhushan in response to the notice of contempt issued by the Supreme Court (for his interview to a news magazine in which he had said, "out of the last 16 to 17 Chief Justices, half have been corrupt"), filed an affidavit standing by his earlier comments saying: "It is My Honest And Bonafide Perception". Later in September 2010, he submitted a supplementary affidavit in which he submitted evidence to back his allegations. In November 2010, former Law Minister, Shanti Bhushan echoed Prashant Bhushan's claim saying: “It is my firm belief that there is a lot of corruption in judiciary. I am saying the same thing which Prashant Bhushan had said. The question of apology does not arise. I will rather prefer to go to jail. The judiciary cannot be cleansed unless the matter is brought into the public domain”.

2. In June 2011, a very widely respected former Chief Justice of India J.S. Verma echoed these views saying that "certain individuals with doubtful integrity were elevated within the higher judiciary". He cited the case of Justice M. M. Punchhi, whose impeachment had been sought by the campaign for judicial accountability. Justice Verma said he was willing to permit the allegations to be probed but the political executive refused to allow this. Justice Verma further explained, "Because the allegations, if proved, were serious and therefore they required to be investigated, so that one could know whether they were true or not." He acknowledged that Justice Punchhi was later elevated to Chief Justice of India despite facing "serious allegations". Justice Verma also talked about another former Chief Justice of India K G Balakrishnan’s continuance as National Human Rights Commission chairman.

17 BRIEFING FOR UK MEPs – ASHLEY FOX

Justice Verma said, "He should have demitted long back and if he doesn't do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office."

3. In November 2011, a former Supreme Court Justice Ruma Pal slammed the higher judiciary for what she called the seven sins. She listed the sins as: 1. Turning a blind eye to the injudicious conduct of a colleague 2. Hypocrisy – the complete distortion of the norm of judicial independence 3. Secrecy – the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Court is transparent 4. Plagiarism and prolixity - meaning that very often Supreme Court judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language 5. Self-Arrogance – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures 6. Professional arrogance – whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle 7. Nepotism – wherein favours are sought and dispensed by some judges for gratification of varying manner.

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