PUCL Bulletin, August 2004
There was increasing concern at the erosion of human rights protections in the context of “anti-terrorism” measures against armed political groups, and continuing communal tensions. Systemic discrimination against vulnerable groups – including women, religious minorities, dalits and adivasis (tribal people) – was exacerbated by widespread use of security legislation, political interference with the criminal justice system and slow judicial proceedings in a continuing climate of impunity. Tensions remained high in the state of Gujarat in the aftermath of widespread communal violence in 2002. Witnesses to the violence and human rights defenders were threatened and concerns grew about the impartiality of institutions of the criminal justice system in the state, including the police, prosecution service and elements of the judiciary. A committee constituted by the Ministry of Home Affairs suggested recommendations for the reform of the criminal justice system which could potentially undermine human rights protections even further.
The National Democratic Alliance, led by the Bharatiya Janata Party (BJP), remained in government. Some state elections were marred by political campaigns that fuelled inter-caste or inter-communal tensions.
Bomb attacks targeting civilians were reported during the year. On 25 August 52 people were killed and around 150 injured by two car bombs in Mumbai, Maharashtra state. No group claimed responsibility. However, at least six Muslims accused of involvement in the attacks were arrested and charged; they remained in custody at the end of the year awaiting trial. Human rights protections were further eroded, ostensibly in response to security considerations.
Relations between India and Pakistan improved in some respects, although underlying tensions remained. Security concerns continued to dominate foreign policy discussions, including in the context of the US-led “war on terrorism” which continued to be supported by the Indian government.
In the northeast, a cease-fire between the National Socialist Council of Nagaland (Isaac-Muivah) and the central government was extended in July for one year.
There were reports of collective expulsions by the Indian authorities of Bangladeshi nationals accused of being illegal immigrants. However, the Bangladeshi authorities were reluctant to allow them to return. The incident resulted in a stalemate where 213 people were trapped between the two borders.
Heightened tensions in Gujarat
Following widespread communal violence in the state of Gujarat in February and March 2002, the state continued to witness sporadic incidents of communal violence. More than 2,000 people had been killed in early 2002 in the wave of violence targeting the Muslim community. These killings followed an attack on a train in Godhra in February 2002 in which 59 Hindus were killed by a mob. Reports implicated police officers and members of Hindu nationalist groups, including the Vishwa Hindu Parishad (VHP) and the ruling BJP in the violence against Muslims.
There was increasing concern about the failure of the state government of Gujarat to ensure that those responsible for widespread communal violence in early 2002 were brought to justice. In many cases, attempts to hold the perpetrators accountable were hampered by the highly defective manner in which police recorded complaints. Victims complained that police failed to register complaints, or recorded details in such a way as to lead to lesser charges, omitted the names of prominent people who were pivotal in the attacks, and did not take appropriate action to arrest suspects, particularly where they were supporters of the BJP. Reports indicated that out of 4,252 complaints filed by individuals regarding the communal violence, 2,032 were closed even though the alleged abuses were found to have occurred. One of the reasons given by the police for closing the cases was that they were unable to identify the individual perpetrators.
Concerns about the impartiality of institutions in the state and the government’s commitment to ensure justice for the victims of communal violence were brought to the fore in June when 21 people accused of the murder of 14 people burned to death in the Best Bakery in Baroda on 1 March 2002 were acquitted. Following the acquittal, key witnesses indicated that they lied in court because they had been threatened with death unless they did so. Following a public outcry, the National Human Rights Commission (NHRC) carried out an investigation and subsequently filed a petition in the Supreme Court. The petition asked the court to provide protection to witnesses, to ensure a retrial of the case in a court outside Gujarat state, and to order the transfer of other ongoing key cases to courts outside Gujarat to ensure fair proceedings. During the proceedings the Supreme Court severely criticized the state government of Gujarat for failing to provide justice to victims of the communal violence and pointed to the possible collusion between the state government and the prosecution in subverting the cause of justice. Following the criticism, the Gujarat government amended its original appeal, this time seeking a retrial of the Best Bakery case. This was dismissed by the Gujarat High Court in December.
Following the investigation into the killing on 26 March of Haren Pandya, the former Home Minister of Gujarat, police reported that they had unearthed a series of conspiracies to target Hindus and prominent officials held responsible for the communal violence. From March onwards, scores of Muslims were reported to have been illegally detained in Gayakwad Haveli Police Station in Ahmedabad by Crime Branch police, reinforcing concerns about the breakdown in the rule of law in relation to the Muslim minority in the state. Many of those formally arrested were charged under the Prevention of Terrorism Act. Police routinely resorted to arbitrary and incommunicado detention, denied detainees access to lawyers and medical attention, and used torture or ill treatment to extract confessions. There were concerns that patterns of illegal detention may have been replicated in other areas of the state following a statement by a senior police officer, which endorsed such actions. The widespread use of incommunicado detention by police against members of the Muslim minority in Ahmedabad is reported to have intimidated members of the Muslim community who were too scared to make official complaints.
Following comments in which the Chief Minister alleged that foreign-funded “five star activists” were maligning Gujarat and attacking India’s democratic system for the sake of their vested interests, there were reports that a committee had been set up to monitor the activities of those foreign funded non-governmental organizations which were active in the reconstruction of the state after the January 2000 earthquake.
Violence against women in Gujarat
The specific targeting of Muslim women in the communal violence of early 2002 remained unacknowledged by the state government and criminal justice system. Witnesses reported that a large number of women were beaten, stripped naked, gang raped and stabbed. Many of the victims were mutilated before being burned alive by mobs, allegedly led by Hindu nationalist groups. The stigma associated with sexual violence impeded many women from making formal complaints. Those who did lodge complaints were often faced with wholly inadequate responses from the police and the health, rehabilitation and justice systems. In some cases victims were asked to file their complaints with officers who had allegedly colluded with the attackers. Nearly two years after the attacks, the survivors still had no access to rehabilitation packages or procedures geared to their needs.
Socially and economically marginalized groups, such as dalits, adivasis, women and religious minorities, including Muslims, continued to face discrimination at the hands of the police, the criminal justice system and non-state actors.
In April a government-appoint
ed committee under the direction of Justice Malimath published its recommendations for reforms of the criminal justice system in India. There were concerns that the Committee’s recommendations threatened to weaken protection of women’s rights in law. For example the Committee recommended that in cases where the offence of cruelty is committed against a woman by her husband or his relatives, it should be possible to settle the case out of court and bail should be available to the accused. The Committee’s reasoning for this proposal was that it would facilitate forgiveness of the husband and the return of the woman to the matrimonial home.
The Malimath Committee was silent on issues related to protecting the rights of the poor, dalits, ethnic and religious minorities and other disadvantaged communities who face daily abuse and violence. The criminalisation of poverty coupled with the complete inability of the poor to negotiate the criminal justice system and retain competent legal counsel, remained a major human rights problem as such individuals were at risk of mistreatment without redress.
There were continuing reports of police inflicting cruel, inhuman or degrading treatment on members of adivasi communities in the context of land disputes and evictions. Other abuses reported included arbitrary detentions and the destruction of homes and livelihoods.
On 21 July, members of an adivasi community were forcibly evicted from their homes in Puntamba village and surrounding areas in the Ahmednagar district of Maharashtra. Around 50 huts and several acres of crops were destroyed by officials of the Maharashtra State Farming Corporation (MSFC), accompanied by up to 100 police officials. An appeal regarding their rights to the land, which was pending, was ignored by the officials carrying out the evictions. During the action, at least one activist of the Adivasi Bhoomi Hakka Andolan (Tribal Land Rights Movement) was placed in preventive detention by police. The findings of a police investigation into the complaints filed by adivasis concerning the destruction of their homes remained unknown at the end of the year. In recent years a number of incidents have been reported where adivasis and activists working with them have faced harassment from local landowners and officials of the MSFC, including destruction of their property, verbal and physical abuse, arbitrary arrest and beating in police custody. While police have registered complaints against adivasis by officials and landowners, they have regularly refused to register complaints made by adivasis or to investigate their allegations of harassment.
The Prevention of Terrorism Act (POTA) continued to be used to detain political opponents and members of minority populations. The lapsed Terrorist and Disruptive Activities Act continued to be used to arrest people in Jammu and Kashmir by linking them to cases filed before 1995. Preventive arrest and detention provisions contained in other security laws as well as in the Code of Criminal Procedure were also misused against political and human rights activists.
There were grave concerns about recommendations of the Malimath Committee to incorporate into criminal law several provisions of the POTA that violate international human rights standards or which, if implemented, would lead to a heightened risk of human rights violations. For example, the Committee recommended that confessions recorded by a Superintendent of Police (or higher rank) that was also audio or video recorded should be admissible as evidence. Concerns that the provisions of the POTA could encourage the use of torture and ill treatment by admitting such confessions appeared to have been realized in practice. In Gujarat several detainees alleged in court that their confessions were extracted under duress. Preventive arrests and detention continued to be used against political opponents using state legislation similar to the POTA in a number of states including Jammu and Kashmir, Andhra Pradesh, Arunachal Pradesh, Karnataka and New Delhi Union Territory. Only a handful of high-profile releases had been made by the end of the year despite a promise to review all cases of detainees held without trial for long periods under security legislation made under the Common Minimum Programme adopted by the new state government in Jammu and Kashmir.
Human Rights Commissions
The government failed to consider the recommendations made by the NHRC in 2002 for amendments to the Protection of Human Rights Act 1993 under which the NHRC operates. These amendments would have permitted the NHRC to investigate allegations of human rights violations committed by the army or paramilitary forces, as well as those committed by the police, and incidents that took place more than a year before the complaint was made. The government’s failure to deal with these amendments served to strengthen impunity for human rights violations. State human rights commissions, established in 13 of the 28 states, continued to suffer from lack of resources and expertise.
Members of the security services continued to enjoy virtual impunity for human rights violations.
In Punjab a culture of impunity, developed within the criminal justice system during the period of widespread-armed political opposition in the mid-1990s, continued to prevail. This was strengthened by provisions contained in special security laws and the Protection of Human Rights Act, and by the frequent failure to implement recommendations issued by various commissions of inquiry.
In 1996 the Supreme Court had ordered the NHRC to examine the findings of the Central Bureau of Investigations that police officials in Amritsar district had illegally cremated 2,097 people. The cremations took place following widespread “disappearances” in police custody and possible extra judicial executions in the mid-1990s. Seven years after this decision, the state of Punjab had only just begun to file its affidavits on cases under examination by the NHRC.
In Jammu and Kashmir the state government kept its promise made in the Common Minimum Programme to assimilate the Special Operations Group (SOG), a paramilitary division of the police accused of human rights violations, into the regular police. However, the SOG continued to operate as a cohesive unit and despite disciplinary action being taken against a few of its members, there continued to be regular reports of human rights violations being committed by the SOG. In May, the NHRC asked the Chief Secretary of Jammu and Kashmir for specific information on the systems used by the state authorities to record and investigate allegations of “disappearances” and on measures taken to prevent further “disappearances”. A substantive response to the Commission’s request remained outstanding at the end of 2003.
Civilians continued to be targeted for gross human rights violations in Jammu and Kashmir and scores of allegations of human rights violations were made against the security forces, paramilitaries and “renegades” (former members of armed opposition groups working with the security forces).
Abuses by opposition groups
There were continuing reports of human rights abuses by armed opposition groups against civilians. In Jammu and Kashmir human rights abuses by militants persisted at a high level with a reported 344 civilians killed in targeted or indiscriminate violence by armed groups in the period from January to the end of November. On 24 March armed men shot dead 24 Kashmiri Pandits, including 11 women and two children, in the village of Nadimarg. In the states of the northeast, abuses included the torture and killings of non-combatants and attacks on civilians by naxalites (armed left-wing groups) in areas of Andhra Pradesh, Bihar, Madhya Pradesh, Orissa and West Bengal.
Human rights defenders
Human rights defenders continued to face accusations of “anti-national” activities, harassment by state agents, political groups and private individuals, including threats, preventive arrest and detention, and violence.
There were reports that following an assassination attempt on the Chief Minister of Andhra Pradesh in October, allegedly by naxalites, retaliatory harassment was initiated against human rights defenders. At least six members of the Andhra Pradesh Civil Liberties Committee (APCLC) were detained for questioning in October in connection with the assassination attempt and APCLC activists were put under constant surveillance and were repeatedly detained for questioning. In November there were growing concerns the APCLC could face a ban following statements by the Director General of Police indicating that the organization was sympathetic to the naxalites.
At least 33 people were sentenced to death in 2003. No executions were reported. India’s highest courts have ruled that the death penalty can only be applied in the “rarest of rare” cases. In the absence of any more detailed definition, the interpretation of this phrase by judges varied greatly. The majority of those sentenced to death are poor and illiterate. The government of India does not publish statistical information about the implementation of the death penalty. Politicians continued to make statements favouring the extension of the death penalty. In mid-2003 the Law Commission issued a questionnaire asking citizens to indicate which mode of execution should be used when executing those on death row.
AI Country Reports/Visits
India: Break the cycle of impunity and torture in Punjab (AI Index: ASA 20/002/2003)
India: Report of the Malimath Committee on Reforms of the Criminal Justice System – Some observations (AI Index: ASA 20/025/2003)
India: Abuse of the law in Gujarat – Muslims detained illegally in Ahmedabad (AI Index: ASA 20/029/2003)
India: Open letter to the Chief Minister to Jammu and Kashmir on the failed promises of the Common Minimum Programme (AI Index: ASA 20/033/2003)
In 2003 AI continued to have an ongoing dialogue with the government of India about access to India for AI representatives.
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