Issues Paper
State Protection in India November 2012
Table of Contents
Section 1: Background ...... 3
1.1 Purpose ...... 3
1.2 Who seeks protection and why? ...... 3
Section 2: Domestic State Protection...... 5
2.1 Law ...... 5
2.2 Police & Military ...... 6
2.2.1 Structure ...... 6
2.2.2 Enforcement ...... 7
2.2.3 Inaction ...... 8
2.2.4 Corruption/Impunity ...... 11
2.2.5 Politicisation of police/military ...... 12
2.2.6 Location of persons in different jurisdictions ...... 15
2.3 Judicial Authorities ...... 16
2.3.1 Structure ...... 16
2.3.2 Enforcement ...... 17
2.3.3 Corruption...... 18
2.3.4 Pre-trial detention ...... 19
2.4 General State of Law & Order ...... 20
2.4.1 Security situation / Terrorism ...... 20
2.4.2 Collusion between government and criminals/terrorists ...... 21
2.4.3 Anti-corruption mechanisms ...... 22
Section 3: Recommended Reading ...... 24
3.1 General Background ...... 24
3.2 Police and Military ...... 24
References ...... 25
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Section 1: Background
1.1 Purpose
India is comprised of 28 states and seven union territories1, and has a population in excess of 1.2 billion people.2 This paper aims to provide information on issues relevant to state protection in India on a broad-brush scale. Due to India‟s sheer geographic size and population, and the country‟s cultural and religious diversity, it is beyond the scope of this paper to address the issue of state protection with any specificity regarding the multitude of ethnic, religious and other minority groups.
1.2 Who seeks protection and why?
Those seeking protection may include – but are not limited to – the following (listed with some common grounds for seeking protection):
Women (domestic violence, sexual assault, honour killings, dowry);3
Lesbian Gay Bisexual Transsexual Intersex (LGBTI) individuals;4
Caste (Dalits, inter-caste marriage);5
Actual or perceived political beliefs/affiliation (Bharatiya Janata Party (BJP), Indian National Congress (INC), Shiromani Akali Dal (SAD), Khalistan Liberation Front (KLF), Babbar Khalsa International (BKI));6
1 Commonwealth Human Rights Initiative 2008, Police Organisation in India
3
Religion (inter-faith marriage, conversion, Sikhs, Dera Sacha Sauda (DSS), Muslims, Hindus, Christians);7
Refugees (Tibetan, Nepalese, Tamil);8 and
Family members (property/money/loan disputes).9
Human Rights Practices 2011 – India, 24 May, Section 1.e, 1.g; UK Home Office 2012, India: Country of Origin Information (COI) Report 2012, 30 March, pp. 96-7, 105, 177, UNHCR Refworld
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Section 2: Domestic State Protection
This section will provide information on Indian laws relevant to state protection, and will examine the mechanisms in place that enforce these laws. Included in this will be issues regarding the police, military, and other enforcement instruments, the judiciary, as well as issues such as corruption and impunity, and politicisation.
It is worth noting that the northern region of India, in particular Jammu and Kashmir, should be considered separately to other regions of India, with Jammu and Kashmir being subject to specific laws having been accorded „special status‟.
2.1 Law
Legislation relating to state protection for victims or potential victims of targeted harm includes:
The Indian Penal Code, 1860.10
The Unlawful Activities (Prevention) Act, 1967.11
Code of Criminal Procedure, 1973.12
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.13
Armed Forces (Special Powers) Act, 1958.14
National Security Act, 1980.15
Jammu and Kashmir Armed Forces Special Powers Act, 1990.16
10 Republic of India 1860, Indian Penal Code 1860, Act No. 45 of 1860, Act No. 45 of 1860, Commonwealth Legal Information Institute, 6 October
5
Jammu and Kashmir Public Safety Act, 1978.17
2.2 Police & Military
A wide range of sources indicate that many within the Indian security forces – including the police and the military – are poorly trained, corrupt, ineffective, and at times responsible for human rights abuses. According to the US Department of State, during 2011 “[t]he most significant human rights problems were police and security force abuses, including extrajudicial killings, torture, and rape; widespread corruption at all levels of government; and separatist, insurgent, and societal violence”.18 In its 2012 World Report, Human Rights Watch noted that:
Custodial killings, police abuses including torture, and failure to implement policies to protect vulnerable communities marred India‟s record in 2011 as in the past. Impunity for abuses committed by security forces also continued, particularly in Jammu and Kashmir, the northeast, and areas facing Maoist insurgency.19
A 2009 Human Rights Watch report, Broken System – Dysfunction, Abuse, and Impunity in the Indian Police, states that Indian police complain that they have very limited resources, which often prevents them “from responding promptly to calls for help and visiting crime scenes, setting up patrols, and following up on investigation leads”. There is reportedly an average of seven police vehicles for every 100 police and fuel allowances cover “only a small fraction of the cost” of fuel consumed in the line of duty; “[s]ome police in rural areas said that they were often expected to take public transportation to reach remote areas, leading to delays in police response”. Police in India also “frequently fail to register crime complaints, called First Information Reports (FIRs), and to investigate crimes”.20 The 2012 Vision 2020 report prepared by the West Bengal Police indicates that these same issues continue to undermine police capacity and therefore the esteem in which they held by the general public.21
2.2.1 Structure
Primary responsibility for maintaining law and order in India lies with the 28 states and seven union territories. Most paramilitary forces, intelligence bureaux and
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national police come under the auspices of the Ministry of Home Affairs, which also provides training for senior state police officers.22
The UK Home Office Country of Origin Information (COI) Report of March 2012 provides detailed information regarding the structure, regulations and responsibilities of the various police and security agencies in India.23
According to the US Department of State, the Indian Army – which numbers over 1.4 million – is primarily engaged in safeguarding “the territorial integrity of the country against external threats”. Recently, however, the Army has been extensively committed to counterterrorism operations in the north-east, as well as in Jammu and Kashmir.24
2.2.2 Enforcement
According to the US Department of State, during 2011 “[t]he effectiveness of law enforcement and security forces varied widely throughout the country. Officers at all levels acted with impunity, and officials rarely held them accountable for illegal actions”.25 In 2009, Human Rights Watch reported that:
…a lack of political commitment and investment by the state has left the police overstretched and ill-equipped. There is just one civil police officer for every 1,037 Indian residents, far below Asia‟s regional average of one police officer for 558 people and the global average of 333 people.
Police infrastructure is crumbling. Decaying, colonial-era police stations and posts across India are stocked with antiquated equipment and lack sufficient police vehicles, phones, computers, and even stationary. A severe police staffing shortage is compounded by additional demands on an already stretched force. Police are routinely diverted to protect “VIPs” – usually politicians, businesspeople, and entertainment figures. Senior police officials frequently use low-ranking staff as orderlies and even as personal family servants.26
Human Rights Watch noted that, in general, enforcement issues at the local level may adversely affect the level of effective protection available from the Indian authorities. For instance, constables reportedly have limited training, and a heavy workload combined with a personnel shortage (one police officer for every 1,037 residents) lead to officers looking for investigative “short cuts”. Officers who are designated crime
22 US Department of State 2012, Country Reports on Human Rights Practices 2011 – India, 24 May, Section 1.d 23 UK Home Office 2012, India: Country of Origin Information (COI) Report 2012, 30 March, pp.37- 52, UNHCR Refworld
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prevention and investigation duties are often diverted to carry out other duties, including patrolling religious processions, or patrolling demonstrations.27
In 2011, The Telegraph (UK) reported that “[o]rdinary members of the public are so afraid of entering police stations or allowing officers into their homes that the Commonwealth Human Rights Initiative has published a pamphlet to spell out their rights and explain how to hold the force to account”. The pamphlet reportedly notes that if police officers “act unlawfully or refuse to protect members of the public, complaints can be made to senior officers or a magistrate”. The report referred to a Human Rights Watch spokesperson, who reportedly noted that:
…Indian police often beat suspects as instant punishment to save the trouble of court procedures, and torture them for information. “They kill people when they decide they will never have enough evidence against them, so it‟s fine to kill them in custody. There‟s a saying in Hindi which says „the policeman is never a good friend or good enemy‟. It‟s not a good public-private relationship…28
In September 2012, NDTV29 reported that violent clashes occurred between police and locals in East Delhi after an incident in which police reportedly struck a young man, who sustained critical injuries after he subsequently fell off his scooter and was hit by a passing vehicle. During the ensuing violence, a petrol station, several vehicles and a police station were set on fire. Five police were reportedly injured, a number of civilians injured, and the “other scooterist, because of whom the whole incident has been triggered, happens to have been beaten with lathis”.30
While steps are – at least ostensibly – being taken to address police behaviour and effectiveness, no information was located regarding to what degree such measures have been successful. According to the Asian Human Rights Commission in 2010, “[i]ncreasing police atrocities on suspects…led to a parliamentary committee to recommend capital punishment to police officials for custodial deaths”. The committee suggested that rather than resorting to torture during interrogations, police could be accompanied by trained psychologists when questioning suspects.31
2.2.3 Inaction
Police inaction, either as a result of delays in conducting inquiries or refusals by police to accept FIRs, effectively prevents investigations into often serious crimes. The practice is widespread, and can appear at times to be politically related. While
27 Human Rights Watch 2009, Broken System – Dysfunction, Abuse, and Impunity in the Indian Police, August, pp.26-31
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some reports indicate that persistence on the part of the complainant can result in FIRs being acknowledged, this is not always the case.32
The alleged murder of an Uttar Pradesh trader in July 2012 in his store less than 200 metres from the local police station resulted in a protest by over 400 local residents outside the police station, “[a]ngry over the lackadaisical manner in which police officers handled the incident”. The officer in charge of the station, and seven constables, were subsequently suspended, and an FIR was lodged by police against “unidentified persons”.33
In May 2012, The Mumbai Mirror reported that police inaction in relation to missing shipping containers led an Andheri-based logistics company to conduct its own investigation. After initial attempts to lodge a First Incident Report (FIR) were refused by police on 17 May, the company traced the containers and collected evidence, which was in turn provided to police. After two more attempts by the company to lodge an FIR, and a letter to the police commissioners of Mumbai and Pune, police eventually registered the FIR on 23 May.34
A February 2012 India Today report stated that the National Commission for Women (NCW) criticised Odisha police for refusing to register an FIR lodged by a family regarding the sexual assault of a girl in the Pipili area. According to the report, the victim remained in a coma, while NCW claimed that if the FIR was in place, “then all the medical institutions involved could have been alerted and the girl would have received continuous medical attention”. Those involved in the assault were reportedly associates of a local Biju Janata Dal (BJD) MLA.35 In Orissa in June 2012, police reportedly refused to accept an FIR in the case of a rape complaint. According to TNN, the victim subsequently filed a case in the Sub-Divisional Judicial Magistrate (SDJM) court, where the “court took cognizance of the offence and a case was booked”, resulting in six years‟ imprisonment for the accused. TNN cited a senior advocate and public prosecutor, who said that the “judgment will certainly inspire many, who are denied justice at the police station, to knock on the door of the court”.
32 „Trader killed in his shop, police „inaction‟ sparks protest‟ 2012, The Indian Express, 22 July
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The report noted, however, that the “incident of a victim getting justice without the support of local police…is a rarest of the rare case”.36
According to the US Department of State, during 2011 the government “generally cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to some but not all IDPs [internally displaced persons], refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern”. The absence of a legal framework for addressing refugees “resulted in varying standards of protection for different refugee groups”.37
A report from The Hindu, published on 13 March 2011, refers to the June 2007 honour killing of a couple in Haryana state that had married against the wishes of the khap panchayat (unofficial village council38). The objection to the marriage was based on the couple belonging to the same gotra.39 On the orders of the khap panchayat, the couple was abducted “despite police protection” and murdered by the bride‟s relatives. In March 2011, the Punjab and Haryana High Court ordered that disciplinary action be taken against the police officers in charge of providing this protection, which it found had collaborated with the perpetrators and then ensured the subsequent investigation would result in their exoneration.40
According to Time Magazine, police assigned to protect an inter-caste couple who had married against the wishes of the bride‟s family reportedly provided information on the couple‟s location to a local khap panchayat; the couple was subsequently murdered.41 The US Department of State reported that in April 2011, the Supreme Court of India declared that khap panchayats have no legal authority and act illegally by authorising honour killings.42
According to a February 2009 report by Dawn, police refused to register a case against a group of men associated with Rashtriya Swayamsevak Sangh43 (RSS) accused of humiliating a 15-year-old girl for talking to a Muslim boy on a bus; the girl
36 Ray, M 2012, „Court justice for rape victim after police inaction‟, The Times of India, source: TNN, 23 June
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consequently committed suicide. The police reportedly justified their refusal to register a case “on the grounds that if they did so, there would be communal riots”.44
An Indian coalition called the National Coalition for Strengthening PoA Act argued in a 2012 report that there is evidence that police are reluctant to file FIR reports lodged by Dalits alleging violations of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA). Furthermore, of the FIRs that are lodged alleging violations of the PoA, a high proportion remain classified as „investigation pending‟:
In 2010, out of the total of 32712 atrocities, only 10513 (32%) cases were registered under PoA Act. At the year-end, 28% of cases were pending for investigation. About 21% of cases were closed by the police. There were 44,864 cases pending charge sheeting for 13 years even after investigation. Out of the registered atrocities, only 72% were investigated out of which only 50% were charge-sheeted.45
The Indian weekly news magazine Tehelka reports that Colin Gonsalves, Senior Advocate in the Supreme Court and founder director of Human Rights Law Network, argues that police throughout India are usually members “of the dominant caste. A Dalit handling a case of caste atrocity is an extreme rarity”. Subsequently, police “urge the victims and accused to settle or withdraw the case. 99% of the cases are withdrawn”.46
2.2.4 Corruption/Impunity
In 2012, the US Department of State noted that “[w]idespread impunity at all levels of government remained a serious problem. Investigations into individual cases and legal punishment for perpetrators occurred, but in many cases a lack of accountability due to weak law enforcement, a lack of trained police, and an overburdened court system created an atmosphere of impunity”. Corruption remained pervasive, and bribes were reportedly paid to “speed up procedures, such as police protection”.47 This was supported by Freedom House, who noted that “[p]olice often torture or abuse suspects to extract confessions or bribes”.48
The Armed Forces Special Powers Act (AFSPA) – in effect in the north-eastern regions and in Jammu and Kashmir – allows the government to declare any state or union territory a “disturbed area”. Further, the AFSPA allows security forces:
44 Nayar, K 2009, „India‟s politicised police‟, Dawn, 20 February
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…to fire on any person to “maintain law and order” and to arrest any person “against whom reasonable suspicion exists” without informing the detainee of the grounds for arrest. The law also gives security forces immunity from prosecution for acts committed under the AFSPA. 49
According to an article by a Commonwealth Human Rights Initiative employee published on Eurasia Review, human rights violators in India – including security forces – continue to operate with impunity. Special acts such as the AFSPA “allow for impunity to unreservedly embed itself in daily practice”. Eurasia Review further noted that aside from such special acts, “general protections for public servants written into ordinary law are routinely abused to deliberately delay well-deserved investigation and prosecution”.50
In January 2012, an Associated Press (AP) report noted that “India has rejected every request over two decades to prosecute Indian soldiers in civilian court in Kashmir for alleged rights abuses including murder and rape”. According to AP, the AFSPA requires Kashmir to obtain federal approval “for prosecuting paramilitary or army soldiers in civilian courts”. India has reportedly denied some 50 such requests by Kashmir over the past 20 years, suggesting that there is “100 percent legal impunity for Indian troops operating in Jammu and Kashmir”.51
In March 2012, the Asian Human Rights Commission (AHRC) assessed that in India, “[t]here is no concept or procedure to protect victims or witnesses…law enforcement officers plentifully exploit this wherever there is a complaint against them so that they find complainants easy prey that could be forced to sign compromise agreements”. To illustrate this, the AHRC provided the example of a farmer who was reportedly assaulted by Border Security Forces (BSF) in West Bengal state on suspicion of having participated in an anti-BSF protest. After filing a complaint with police, the farmer claims that local police threatened the victim and his family, “demanding that they withdraw the complaint”.52
2.2.5 Politicisation of police/military
According to the 2012 BTI Transformation Index53, “Indian police forces are highly inefficient, politically dependent and corruption prone”. However, the Supreme Court
49 US Department of State 2012, Country Reports on Human Rights Practices 2011 – India, 24 May, Executive Summary, Section 1.a 50 Chawla, N 2012, „Impunity Reigns In India – OpEd‟, Eurasia Review, 18 May
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has reportedly “mandated the establishment of an investigating police commission and has ruled that corrupt officers can be prosecuted without government consent”.54
In May 2012, the Asian Human Rights Commission (AHRC) noted that police in India:
…are first and foremost servants of the people of India, and instruments of greater goods – justice and peace. The reality is, however, that the police are not the impartial and independent body they should be. Neither do the police seem to desire that independence.55
The AHRC provided the example of the Communist Party of India-Maoist (CPI-M) in Kerala, which, until 2011, had been the state‟s ruling party and “was itself in a position to exploit state machinery”. During the CPI-M‟s five years in power, the police – and not the legislative assembly – drafted the Kerala Police Act 2010, awarding themselves unprecedented powers at the direction of the CPI-M government. According to the AHRC, the CPI-M had “no moral or legal right to subjugate the police”. In 2012, despite no longer being in government, members of the opposition CPI-M were allegedly able to orchestrate the murder of a former CPI- M politician, and subsequently exploit their influence over Kerala police to effectively escape prosecution.56
An October 2012 NHRC report discussing police corruption and politicisation claimed that:
The entire establishment is in fact misused and the officers let it be so, by those who wield financial, political and religious influences. The country‟s political elite believes that the police must implement the writ of the state by force and creating fear. This requires allowing and cultivating a culture of impunity for the establishment. It is for this reason why there is no attempt in India to create a legislative framework that is able to deal with criminality and professional misconduct among law enforcement officers.57
A separate report by the AHRC discussed the extrajudicial killing of three protesting Dalits by police in Gujarat in September 2012. According to the report, the targeting of Dalits by police during communal clashes “has emerged as a definite pattern”, with police “often found to be acting as a conduit of locally dominant caste groups instead of discharging its duties in a fair and impartial manner”. Further, the AHRC claimed
54 Bertelsmann Stiftung Transformation Index 2012, India Country Report, p.6
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that officers responsible for attacks are rarely punished, emboldening “the structures of violence against Dalits and other marginalised groups”.58
In May 2012, The Indian Express reported that a West Bengal Police internal policy document acknowledged a number of weaknesses within the force, including “excessive politicisation”. In particular, a senior police officer claimed that “[u]ndue political considerations in important postings and in daily functioning in the police stations” was commonplace.59
An earlier report from the Kerala News in 2010 claimed that the alleged “breakdown in law and order” was a result of the politicisation of the police by the CPI-M. According to the Union Minister for Overseas Indian Affairs, “departments such as the police were ruled by the unions that controlled the party” and were being used to the “political advantages of the CPI(M)”. Further, the Minister claimed that police, despite being “duty-bound to protect the lives and property of citizens”, were not taking steps to curb violence against people.60
In December 2011, the South Asia Analysis Group (SAAG) reported on the politicisation of the Central Bureau of Investigation (CBI), which according to the report, began under the influence of Indira Gandhi. Further, the report states that “all Prime Ministers from Indira Gandhi onwards tried to influence the investigation of corruption cases by the CBI either to cover up cases involving the ruling party or to implicate political opponents”. According to SAAG:
The politicisation of the CBI and its investigation process was made possible by the lack of resistance from successive CBI Directors to political interference. Some of the Directors sought to curry favour with their political masters by colluding with them either for covering up serious instances of corruption or for harassing political opponents. It was alleged that during the Emergency the CBI acted on the instructions of Sanjay Gandhi for harassing those opposed to the Emergency and Indira Gandhi.61
An August 2012 report by The Hindustan Times stated that the High Court of Bombay “lambasted the state CID [Criminal Investigation Department] for their alleged inaction in an assault case filed against Omi Kalani, son of former Nationalist Congress Party MLA Pappu Kalani”62, while in the same month, a South Asia
58 Asian Human Rights Commission 2012, Police kill three Dalit youth in Thangadh of Surendranagar in Gujarat, 17 October
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Analysis Group63 report claimed that political interference in police activities was even worse in the current climate than it had been in the 1960s when the author served as an Indian police officer.64
With regard to politicisation of the military, a June 2012 report by retired Vice Admiral Suresh Bangara claimed that there was a degree of separation between the Indian armed forces and the Indian government. While the necessity for military deployment was decided by those in power, Bangara noted in a report published by Bharat Defence Kavach65 that “[t]he Military Commanders are allowed to control the flow of operations without any interference so long as the Political objectives of the operations are met”. Bangara further stated that operations were conducted professionally by competent commanders, despite the “lack of constant interaction between the senior Military officers and the Political leadership”. However, according to Bangara, perceptions of the politicisation of the military have arisen as a result of relative peace with India‟s regional neighbours. To wit, in the absence of war with external actors, the military has been deployed internally, “primarily to fight insurgency, [which] has resulted in an undesirable environment for any military”. Further, Bangara notes:
Much has been said and written about the ill effects of using a large force to police our own territory while issues of adequate governance and socio-economic development in the neglected areas have been ignored due to temporary confidence created by the Military “successes”. There have been constant debates within the Military to contain the damage caused to the psyche of a warrior who is exposed to aggressive containment of internal strife.
What is not discussed publicly is lost opportunity to groom young officers in simple officership, their role in a democracy, the responsibility of the state, the expectations of the people of India, the need to remain secular in increasingly polarised religious, ethnic, linguistic bodies. Above all on how to remain apolitical.66
2.2.6 Location of persons in different jurisdictions
Limited information was located regarding the capability or intent of police to locate an individual deemed to be of interest in a different state, or the extent to which private or political influence over authorities may encourage this. In May 2012, the Immigration and Refugee Board of Canada (IRBC) cited an official from the Canadian High Commission in India, who noted that “there is limited sharing of information between police forces”, and that there is no requirement for police to “report the movements of persons of interest to other offices”. The IRBC also cited a program officer from the AHRC, who indicated that “if someone is determined to find
63 South Asia Analysis Group is an India-based non-profit think tank which conducts public interest and advocacy work 64 Raman, B 2012, My take on Police Handling of a Rampaging Muslim Mob in Mumbai, South Asia Analysis Group, 22 August
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a person of interest in a different state, they can locate him or her; however, officers do not exert such efforts to locate people on a daily basis”. The AHRC officer further noted that:
…the type of people that police officers might go to great lengths to search for include people accused of being political dissidents…whether a person of interest is found depends on the police officer and the investigating officer, who may decide to “fabricate” a record which indicates that a person has been arrested.67
2.3 Judicial Authorities
Despite the existence of mechanisms to provide independence and autonomy, the Indian judiciary is considered by some sources to be generally inefficient and weak, and at times is subject to attempts of political interference and widespread corruption.
In its 2012 Annual Report, Amnesty International noted that:
Institutional mechanisms meant to protect human rights remained weak, and judicial processes were slow in ensuring justice for victims of past violations including extrajudicial executions and mass killings. This was despite new legislation introduced to ensure justice and reparations for victims of past communal violence.68
According to the 2012 BTI Index, Indian courts “remain institutionally autonomous, in spite of pressures by the executive, interference in nomination and the transfer of politically unpopular judges”. The report states that the rule of law in India “is more restricted by the understaffing and slow functioning of justice, leading to a massive accumulation of unfinished litigations and the keeping of accused but unconvicted people in custody”.69
2.3.1 Structure
According to the US Department of State (USDOS), “India‟s independent judicial system began under the British, and its concepts and procedures resemble those of Anglo-Saxon countries. The Supreme Court consists of a chief justice and 25 other justices, all appointed by the president on the advice of the prime minister”.70
The UK Home Office Country of Origin Information (COI) Report of March 2012 provides detailed information regarding the structure, regulations and responsibilities of the judicial system in India.71 With regard to the Supreme Court in particular, the
67 Immigration and Refugee Board of Canada 2012, India: Communication between police officers across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May 68 Amnesty International 2012, Annual Report 2012 – India, 24 May 69 Bertelsmann Stiftung Transformation Index 2012, India Country Report, p.8
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UK Home Office cited August 2011 information from Europa World online, which stated that:
The Supreme Court, consisting of a Chief Justice and not more than 25 judges appointed by the President, exercises exclusive jurisdiction in any dispute between the Union and the states (although there are certain restrictions where an acceding state is involved). It has appellate jurisdiction over any judgment, decree or order of the High Court where that Court certifies that either a substantial question of law or the interpretation of the Constitution is involved. The Supreme Court can enforce fundamental rights and issue writs covering habeas corpus, mandamus, prohibition, quo warranto and certiorari. The Supreme Court is a court of record and has the power to punish for its contempt.72
2.3.2 Enforcement
Some sources note that the Indian judiciary is overburdened, with millions of cases pending in the courts. While delays in the provision of justice can contribute to the inability of authorities to provide adequate protection, the following examples of court-ordered protection indicate that a degree of enforcement does exist.
According to Minority Rights Group (MRG) in 2012, “the state of Madhya Pradesh in July became the first in the country to set up a specialized court tasked with prosecuting crimes against scheduled castes and tribes”. MRG also noted, however, that “in an example that illustrates the problem of unaccountability for perpetrators of such crimes nationwide, it was reported that Andhra Pradesh state has a backlog of as many as 1,600 cases”.73
In 2012, USDOS reported that the “judiciary was overburdened, and court backlogs led to lengthy delays or the denial of justice”. In addition to being overburdened, the legal system reportedly lacks “modern case management systems”, which contributes to delays or denial of justice. As of August 2011, there were an estimated 4.2 million cases pending in India‟s high courts, while as of September 2011, there were nearly 30 million cases pending in subordinate courts. According to USDOS, in 2010 a court official estimated that “the courts would require more than 320 years to clear the case backlog”.74
Information was located suggesting that Indian police have at times been instructed by the courts to provide protection. A July 2012 report in BBC News indicates that some intercaste newly-weds have obtained court orders, forcing police to provide shelter. BBC News reports that Haryana has “many homes to protect runaway couples”, and adds that in 2011, some “200 couples were given shelter in such homes”.75 A December 2011 report in The Times of India states that a couple from a Rajasthan
72 UK Home Office 2012, India: Country of Origin Information (COI) Report 2012, UNHCR Refworld, 30 March, p.61
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who married against their parents‟ wishes in Delhi received immediate police protection, who then provided the couple with shelter in Gurgaon, Haryana (near Delhi). The report indicates that prior to marriage, the couple sought help from a lawyer, who lodged a petition in court. The lawyer informed The Times of India that the court subsequently ordered police protection.76
In July 2011, a lesbian couple was granted police protection by a Gurgaon court after they had received death threats from family members and people from their home village in Uttar Pradesh.77 A January 2011 report from The Times of India also refers to a lesbian couple in northwest Delhi who were given police protection after they had received threats from a family member of one of the girls.78 In addition, reports from 2011 were located which referred to police protection being provided to couples and their families by the police and the courts due to family or community opposition to their marriages.79
A report was, however, located that refers to a court making the decision to refuse protection to a lesbian couple. A Press Trust of India article, published in February 2012, refers to the Madhya Pradesh High Court rejecting a petition from “a lesbian couple who had sought security apprehending a threat to their lives if they lived together.” Justice Prakash Shrivastava reportedly refused to give a direction for the couple to be provided security “on the ground of mere apprehension”, observing that “the couple can seek legal redressal [sic] if any harm is caused to them by anyone”.80
2.3.3 Corruption
While Indian law “provides for an independent judiciary, and the government generally respected judicial independence in practice…citizens reported that judicial corruption was widespread”. According to the US Department of State in 2012, many citizens “reported that they offered bribes to move cases through the court system” as
76 Yadav, S 2011, „„Runaway‟ couple sent to shelter home‟, The Times of India, 9 December
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a way of expediting the average time of 15 years for cases to move through court processes.81
In 2011, Freedom House noted that “[t]he lower levels of the judiciary in particular are reportedly rife with corruption, and most citizens have great difficulty securing justice through the courts…[d]espite legal reforms in recent years, the criminal justice system still fails to provide equal protection to minorities, lower castes, and tribal members”.82
According to The Times of India, in October 2012 a Madras High Court Chief Justice “warned subordinate judicial officers in Tamil Nadu that corruption allegations against them would be viewed seriously”, and noted that there were currently an estimated 500 petitions against judges currently under investigation.83 In September 2012, The Deccan Herald reported that a Karnataka High Court Justice stated that the judiciary was not devoid of corruption84, while in August 2012, the West Bengal chief minister claimed that “a section of the judiciary was corrupt”, and that there “were instances where court judgments have been bought for money”.85
In October 2012, an Asian Human Rights Commission (AHRC) report discussed allegations that the Indian Minister of Law and Justice – who reportedly maintains an interest in a business run by his wife that receives government grants – publicly threatened a civil society activist with death. According to the AHRC, a “witness, complainant, investigator, lawyer, and judge can be bribed, threatened, abducted, or murdered at will” in India, while a “substantial number of persons undertaking responsibilities in the courts – judges, lawyers, prosecutors, and the court staff, are corrupt to the core”.86
2.3.4 Pre-trial detention
It is noteworthy that according to Penal Reform International (PRI) in 2009, an estimated 70 per cent of Indian prisoners are pre-trial detainees. PRI attributes this to delays in the criminal justice system, “exacerbated further by an acute shortage of judges – 10 judges per one million people”.87
81 US Department of State 2012, Country Reports on Human Rights Practices 2011 – India, 24 May, Executive Summary, Section 1.e 82 Freedom House 2011, Freedom in the World 2011 – India, 5 July
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A 2012 Human Rights Watch report noted that authorities in Orissa, Jharkhand and Chhattisgarh have frequently brought politically motivated charges against civil society activists. Though such cases are often dropped when prosecutors are unable to support the allegations in court, activists have frequently “served unnecessarily long spells in detention because their bail pleas are routinely denied”. According to the report, police have often attempted to justify these actions by discrediting activists as Maoists or Maoist supporters.88
2.4 General State of Law & Order
2.4.1 Security situation / Terrorism
The security situation in India is volatile. According to the most recent travel advice published by the Department of Foreign Affairs and Trade (DFAT) in August 2012 the potential for terrorist attacks continues:
We continue to receive reports that terrorists are planning to attack India, including in major cities such as New Delhi and Mumbai. Terrorist attacks in India sometimes involve multiple, consecutive explosions. Many past attacks in Indian cities have been indiscriminate rather than directed against a particular target. Possible targets include public places, including hotels and tourist locations, in New Delhi, Mumbai and other major cities. Indian political and security interests may also be targeted.89
According to DFAT, terrorist attacks “can occur anywhere at any time in India with little or no warning”, and noted a “high risk of terrorist activity by militant groups”. Aside from major cities, the travel advice states that terrorists are active in Jammu and Kashmir, while Maoist insurgents (Naxalites) are active in “Jharkhand, Bihar, Chhattisgarh, West Bengal, Maharashtra, Andhra Pradesh, Karnataka, Uttar Pradesh and Odisha. Additionally, terrorist attacks have occurred in Rajasthan and Gujarat. DFAT provided a list of recent terrorist incidents in India, as follows:
Date Description 1 August 2012 A number of explosions occurred in public places in Pune, Maharashtra 29 February 2012 Police uncover plans for a bomb attack on a market in Old Delhi 13 February 2012 Israeli diplomatic vehicle attacked with explosives in Delhi 7 September 2011 Bomb explodes outside New Delhi‟s High Court 13 July 2011 Bombings at Zaveri Bazaar, the Opera area and Dadar in Mumbai 7 December 2010 Explosion in Varanasi during a Hindu festival 19 September Two foreign nationals killed in shooting at a New Delhi mosque 2010 17 April 2010 Two explosions outside cricket stadium in Bangalore 13 February 2010 Bomb explodes outside popular bakery in Pune
88 Human Rights Watch 2012, “Between Two Sets of Guns”: Attacks on Civil Society Activists in India’s Maoist Conflict, July, p. 2
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November 2008 Co-ordinated attacks against places frequented by foreigners in Mumbai90
In addition to terrorism, there are reportedly frequent violent protests and demonstrations throughout India. Outbreaks of anti-Christian violence have occurred in India, and “frequent armed clashes, terrorist activities and violent demonstrations” take place in Jammu and Kashmir, where there is an ongoing dispute between India and Pakistan. Armed robbery, kidnapping and extortion occur frequently in the north- eastern states of Assam, Nagaland, Tripura and Manipur; insurgent groups also operate in these states.91
Travel advice published by the UK Foreign & Commonwealth Office in October 2012 expressed similar concerns to those of DFAT with regard to the security situation in India. The advice provided summaries relating to regions such as Jammu and Kashmir, other northern states, east and north India, the western region, southern India, and Goa in particular.92
In December 2011, a report published by the Institute for Defence Studies and Analyses noted that “steps taken by the government in the last few years to strengthen internal security have started to show positive results”, illustrated by declining levels of violence in Jammu and Kashmir and in the north east, and an absence of major terrorist incidents in the hinterland. Despite this, the report further notes that “the causes of instability have not disappeared, the counter-terrorism mechanism continues to be largely ineffective, the police forces are still highly politicised and incapable of handling terrorists and insurgents, and state governments remain apathetic towards enhancing internal security”.93
2.4.2 Collusion between government and criminals/terrorists
A March 2012 report by the Asian Human Rights Commission raised concerns regarding links between elected officials and criminals in India. To wit:
At the core of these incidents is the nexus of the ruling elite with criminal elements in the country, a mutually beneficial exercise that has continued unabated so far. The bondages and interdependency is such that today there is hardly any distinction between a criminal in illegal business, an elected representative to the state of central government and a corrupt bureaucrat. Religiously motivated political parties not only use such lawlessness for financial gains but also to promote fundamentalist religious ideologies among the population.
90 Department of Foreign Affairs and Trade 2012, Travel Advice – India, 3 August
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To sustain this criminal syndicate, the country‟s justice institutions are held at ransom, where equal extent of corruption and other forms of criminal practices flourish with impunity.94
2.4.3 Anti-corruption mechanisms
Though there are an estimated 2 million police officers in India, there is no specialised police complaints handling body. A number of civilian anti-corruption mechanisms are in place in India, including legislation, a range of government investigative and/or complaint agencies, as well as online resources for people to register grievances.95
Notable anti-corruption mechanisms include:
Central Bureau of Investigation96
Central Vigilance Commission97
National Human Rights Commission98
Anti-Corruption Bureau (Andhra Pradesh)99
Portal for Public Grievances100
Federal and state Ombudsmen101
In June 2012, The Times of India reported that Anti-Corruption Bureau (ACB) officials interviewed a suspended Central Bureau of Investigation (CBI) judge who was accused of accepting a bribe in return for granting a former politician bail. The
94 Asian Human Rights Commission 2012, Predicament from organised lawlessness, 12 March
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ACB had separately arrested a retired judge and his son in the scandal, and registered a case against the suspended judge as well as seven others – including a local politician – on referral from the high court.102
102 „Andhra cash-for-bail scam: Suspended judge questioned‟ 2012, The Times of India, source: PTI, 19 June
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Section 3: Recommended Reading
3.1 General Background
Amnesty International 2012, Annual Report 2012 – India, 24 May.
Bertelsmann Stiftung Transformation Index 2012, India Country Report
Freedom House 2011, Freedom in the World 2011 – India, 5 July
Human Rights Watch 2012, World Report 2012 – India, 22 January.
UK Home Office 2012, India: Country of Origin Information (COI) Report 2012, UNHCR Refworld, 30 March
US Department of State 2012, Country Reports on Human Rights Practices 2011 – India, 24 May.
3.2 Police and Military
Commonwealth Human Rights Initiative 2008, Police Organisation in India
Human Rights Watch 2009, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police, August
Shinar, A 2009, Accountability For The Indian Police: Creating An External Complaints Agency, Human Rights Law Network, August
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References
„Afraid to approach „unfriendly‟ cops‟ 2011, Hindustan Times, 22 December
„Andhra cash-for-bail scam: Suspended judge questioned‟ 2012, The Times of India, source: PTI, 19 June
„Chief Justice warns judges against corruption‟ 2012, The Times of India, 12 October
„Cop gets police protection for love‟, The Times of India, 20 May
„Couple seeks police protection‟ 2011, The Times of India, 11 August
„Dowry death: One bride burnt every hour‟ 2012, Times of India, 27 January
„HC Turns Down Lesbian Couple‟s Petition for Security‟ 2012, Outlook India, source: Press Trust of India, 24 February
„India blocked Kashmir from prosecuting troops for alleged rights abuses, documents show‟ 2012, Washington Post, source: Associated Press, 29 January
„India Briefs: Recent Incidents of Persecution (December 2011)‟ 2012, Compass Direct News, 4 January
25
„India‟s Gujarat riots: 10 years on‟ 2012, BBC News, 1 March
„Judiciary is no exception to corruption: HC judge‟ 2012, The Deccan Herald, 23 September
„NCW slams Odisha Police for inaction in Pipili gangrape case‟ 2012, India Today, 17 February
„No drama over first „legal‟ same-sex marriage‟ 2011, The Times of India, 30 June
„Politicisation of police resulted in a breakdown of law and order in State: Vayalar Ravi‟ 2010, Kerala News, 2 June
„Punjab‟s land mafia thrives as property prices soar‟ 2010, South Asian Post, 2 September
„Section of Indian Judiciary Corrupt, Says CM Mamata Banerjee‟ 2012, LINK, 18 August
„Trader killed in his shop, police „inaction‟ sparks protest‟ 2012, The Indian Express, 22 July
„Why are Hindu honor killings rising in India‟ 2010, Time Magazine, 25 May
Amnesty International 2012, Annual Report 2012 – India, 24 May.
Asian Human Rights Commission 2012, An institution for sale, 22 October
Asian Human Rights Commission 2012, India: Police threaten complainant, demanding withdrawal of complaint against the BSF, 2 March
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Asian Human Rights Commission 2012, India: Police, save thyself, 31 May
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Bertelsmann Stiftung Transformation Index 2012, India Country Report
Central Bureau of Investigation n.d., CBI: About Us – Overview
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Chatterjee, R 2012, „Political masters‟ interventions, graft crippling police force: Internal report‟, The Indian Express, 28 May
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Department of Foreign Affairs and Trade 2012, Travel Advice – India, 3 August
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Government of Andhra Pradesh 2002, Objective of Anti-Corruption Bureau
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Ghosh, D 2011, „Under threat, lesbian couple gets protection from police‟, The Times of India, 18 January
Human Rights Watch 2009, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police, August
Human Rights Watch 2012, “Between Two Sets of Guns”: Attacks on Civil Society Activists in India’s Maoist Conflict, July
Human Rights Watch 2012, World Report 2012 – India, 22 January.
Human Rights Watch 2011, World Report 2011 – India, 24 January.
Immigration and Refugee Board of Canada 2012, India: Communication between police officers across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and technological surveillance, IND104065.E, 14 May. (REFINFO)
Korappath, M K 2012, „Court pulls up CID for inaction in case against ex-MLA‟s son‟, Hindustan Times, 22 August
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Minority Rights Group International 2012, State of the World’s Minorities and Indigenous Peoples 2012: Events of 2011, June
Muller, C et al 2011, „India‟, Political Handbook of the World, CQ Press, Washington
Nagarkoti, R 2011, „Newlyweds seek police protection‟ 2011, The Times of India, 18 November
Nayar, K 2009, „India‟s politicised police‟, The Dawn, 20 February
Nelson, D 2011, „Guide launched „to help overcome fear of India‟s corrupt police‟‟, The Telegraph, 30 August
Pandey, A & Gill, A 2012, „East Delhi tense after clashes between locals, police‟ 2012, NDTV, 3 September
Penal Reform International 2009, Pre-Trial Detention
Pyo, Dr C 2008, Background Report: Examining Existing Police Oversight Mechanisms in Asia, Asia-Europe Foundation, 3-4 December
Raman, B 2011, How to reverse the politicisation of the CBI?, South Asia Analysis Group, 26 December
Raman, B 2012, My take on Police Handling of a Rampaging Muslim Mob in Mumbai, South Asia Analysis Group, 22 August
Ray, M 2012, „Court justice for rape victim after police inaction‟, The Times of India, source: TNN, 23 June
Republic of India 1860, Indian Penal Code 1860, Act No. 45 of 1860, Commonwealth Legal Information Institute, 6 October
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Republic of India 1958, The Armed Forces (Special Powers) Act, 1958, Act 28 of 1958, United Nations Office of the High Commissioner for Human Rights, 11 September
Republic of India 1967, The Unlawful Activities (Prevention) Act, 1967, promulgated 30 December 1967, National Investigation Agency
Republic of India 1973, The Code of Criminal Procedure, 1973,
Republic of India 1978, Jammu and Kashmir Public Safety Act, 1978 (Act No. 6 of 1978), UNHCR Refworld
Republic of India 1980, National Security Act, 1980, Act No. 65 of 1980, UNHCR Refworld, 27 December
Republic of India 2005, Code of Criminal Procedure (Amendment) Act 2005,
Saunders, L C 2008, „Property boom triggers land grabs‟, Asian Pacific Post, 30 July
Sharma, P 2011, „Punjab govt changes rules for NRI property sale‟, The Times of India, 20 January
Srivastava, M 2010, „India: Police Investigations – Mind over batter‟, Asian Human Rights Commission, source: India Today, 25 December
UK Foreign & Commonwealth Office 2012, India Travel Advice, 1 October
UK Home Office 2012, India: Country of Origin Information (COI) Report 2012, 30 March, UNHCR Refworld
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United States Commission on International Religious Freedom 2012, Annual Report 2012 – The Commission’s Watch List: India, UNHCR Refworld, 20 March
US Department of State 2011, Background Note: India, 8 November
US Department of State 2012, Country Reports on Human Rights Practices 2011 – India, 24 May.
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