The State of Human Rights in India in 2011 AHRC-SPR-005-2011 INDIA: Human rights a utopia without justice Introduction: The world's largest democracy, has come a long way from what it was in 1947 - an impoverished and underdeveloped nation - to become the third largest economy in the world in terms of purchase power parity. While in the immediate neighbourhood and for the most of Asia, democracy could only make cameo appearances, India maintained its democratic architecture of administration, and is pushing forward, trying to bring wide- ranging changes in its administration, which has the potential to enable Indians to realise more of the democratic dream the founding fathers of the country promised to the people on 15 August 1947. Even though the country is estimated to be home to a third of the world's poor1 there is an overwhelming increase in the middle-class population over the past decade.2 Yet, it is a cruel paradox that this great march forward has not benefited a considerable number of Indians, an issue that has the potential, if it is not addressed timely and properly, that could challenge the very existence of the country and its democratic roots. To this poor people, 65 years of independence has brought no substantial differences in their daily realties in life, particularly concerning the notion of justice, other than for a ritualistic change of guards in New Delhi and at the state capitals.3 What Indians achieved 65 years ago is not just an end to the colonial rule. Independence was the defining moment of the power of non-violence. Yet violence has remained the primordial nature of authority in India, sanctioned by statute, as it is in the Armed Forces (Special Powers) Act, 1958 or time and again put to use through the daily and manifold forms of torture perpetrated by the police and other law enforcement agencies, against which there is still no law in the country or any functioning accountability framework. On an equal footing, one could read distinct forms of violence committed against the psyche of a society in caste-based discrimination, corruption and starvation deaths. The forced eviction of some of the poorest of the poor in the name of development projects; the denial of rehabilitation and compensation to those who unwillingly oblige to the unified might of the corporate and state power4; the alarmingly increasing instances of religious intolerance like militant youths beating to death a person on mere suspicion of 1 2010 World Bank statistics. The data provided by India's own Planning Commission is not used since the data is widely reported to be wrong, and the Deputy Chairperson of the Commission itself has admitted in October 2011 that errors have crept into the Commission's poverty estimates for the year. 2 Estimated to be slightly more than 150 million in 2010 by McKinsey & Company, Inc. 3 INDIA: In the absence of justice independence is a myth; AHRC-STM-105-2011; 15 August 2011 4 India is one of the countries where forced eviction for development projects is very high and probably the only country where for those who are to receive compensation and rehabilitation will have to wait the longest, that may extent to six or seven years. Shoma Chatterji, Children impacted by forced evictions, India Together, 7 June 2011 The State of Human Rights in India in 2011 Page | 1 The State of Human Rights in India in 2011 AHRC-SPR-005-2011 immoral conduct5; the denial of academic freedom to express opinions about fictional texts6; and the deafening silence of the country's political parties to religious intolerance and nurturing intolerance as a potential source for vote-bank politics are examples to the manifold forms of violence committed against the country. Such omnipresence of aggression is proof to the fact that the country's justice framework has become unable to meet the requirements of a rapidly changing - unfortunately in the wrong direction of extreme polarisation - country. Worst still is the fact that today the country's neutral space for dialogue has turned out to be more silent to these injustices. It has become increasingly difficult to filter facts from fiction. The relatively free media in the country now appear to find comfort in identifying themselves catering to partisan interests. For those who really care, finding out the truth is increasingly becoming a difficult task in India. Freedom is meaningless in the absence of the right to know the truth and be informed. Though the Right to Information Act, 2005, a watershed legislation concerning freedom of information in India has opened a new vista in seeking information, without being able to use the information obtained to seek justice, the law becomes a boat in dry sand. Freedom to be informed also means proper investigation of crimes, irrespective of the accused person's political and economic influence. This freedom implies the right against extrajudicial execution and encounter killings; the right against disappearance and arbitrary and incommunicado detentions and the right and avenues to seek remedies against injustices. Freedom and rights have a universal language7, translated into accessible and exercisable realities for everyone. This however cannot be achieved without properly functioning justice institutions. Today, one of the most neglected and thus the least developed area in India is its justice framework. Having a few cases decided, thereby setting standards for international and domestic human rights norms need not imply that the jurisprudence laid down is translated into quantifiable and thus realisable rights to the people. Should that be the case, right to housing and freedom from forced and unjustifiable eviction would have been a reality to most of Indians since the Olga Tellis case.8 The reality of forced eviction, without at least just and acceptable compensations, and artificially created depletion of livelihood options to thousands of families living in states like Madhya Pradesh, Orissa, Maharashtra and Chhattisgarh should not have happened in India. After the Prakash Singh case9, unwarranted political interference in policing should 5 In Kerala there were 11 different incidents of lynching in 2011 so far. AsiaNet News, Man beaten to death in Perumbavoor, 11 October 2011 6 Furore over Ramayana essay points to cultural divide, India Times, 1 November 2011 7 Peace, justice and freedom: human rights challenges for the new millennium; Gurcharan Singh Bhatia, 2000, University of Alberta Press 8 Olga Tellis and others Vs Bombay Municipal Corporation and others; 1986 AIR 180 9 Prakash Singh and others Vs. Union of India and others; Writ Petition (Civil) 310/1996, decided on 22 September 2006, Supreme Court of India The State of Human Rights in India in 2011 Page | 2 The State of Human Rights in India in 2011 AHRC-SPR-005-2011 have stopped. Since the D. K. Basu case10, custodial violence should have been reduced to a bare minimum in India. The fact that it is not the case is amble proof to the reality that mere judgments need not bring in change. In that the social engineer's role of a court can be very much limited to reported cases, worthy of being footnoted later, than of any meaning should the country does not consider improving its justice framework as priority. Freedom without justice lacks substance. What India, and through the Indian freedom movement, the sub-region has achieved 65 years ago, is just not the freedom from colonisation. The concept of freedom has engraved in it the notion of justice. It is this very notion that India is yet to indentify and make a reality for its citizens. What was achieved in 1947 is the freedom to cast the destiny of a state, that of its citizens and of its future generations. Without justice, freedom would remain a false notion. The AHRC's annual report on India will examine this concept. The following chapters examine four important issues that have glaringly attacked the notion of justice in India namely: i. The practice of torture; ii. Draconian legislations like the Armed Forces (Special Powers) Act, 1958 iii. Caste-based discrimination; iv. Right to food and forced evictions and the development paradigm. Custodial torture: Three years have elapsed since the Prime Minister Dr. Manmohan Singh promised the country that India would ratify the United Nations' Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed the Convention on October 14, 1997, when Mr. I. K. Gujral was the Prime Minister. To ratify the Convention, it was necessary for India to enact enabling domestic legislation. The short-lived Gujral government could not pave the way for its ratification. And Gujral's successors, Mr. Atal Bihari Vajpayee and Manmohan Singh (during his first term), had no political will to propose such legislation. India has not moved much forward since then on the issue other than the introduction of a Bill in the parliament, the Prevention of Torture Bill 2010.11 The Lok Sabha passed the Bill on 6 May 2010. The Rajya Sabha, after considering the Bill constituted a Parliamentary Select Committee to review the Bill. The Committee after its review of the 10 D.K. Basu Vs. State of West Bengal; Writ Petition. (Criminal) 539/1986, decided on 18 December 1996 11 http://notorture.ahrchk.net/profile/india/Prevention_of_Torture_Bill_India_2010.pdf The State of Human Rights in India in 2011 Page | 3 The State of Human Rights in India in 2011 AHRC-SPR-005-2011 Bill suggested wide-ranging changes to the proposed law. The Bill is now with the government and nothing much is heard about it since then. The declared purpose of the Bill is for the country to have an enabling domestic legislation to effectively implement the Convention against Torture in India upon its ratification at the UN.