Asian Human Rights Commission, Hong Kong & Manabadhikar Suraksha Mancha, West Bengal, India
On Wednesday, 28 July 2004, the Calcutta High Court took a short time to announce a decision on a matter that had stood before India’s courts for a decade: it granted leave to prosecute police officers allegedly responsible for the forced disappearance of Bhikari Paswan in 1993. The following day, Bhikari’s father, who had struggled for ten years to obtain justice, died. He had been in a coma since shortly before the court gave its decision.
The father, Lakhichand Paswan, will never know what officially happened to his son after he saw Additional Superintendent of Police (ASP) Harman Preet Singh and three of his men take Bhikari away in the early hours of 31 October 1993. He will never know where the body of his son was discarded. He was robbed of that knowledge, and the right to see the perpetrators punished, not by weaknesses in the case, but by an utterly callous and corrupted system.
Bhikari had been working as a labourer at a local jute mill during a time of serious industrial unrest. The mill workers were going virtually unpaid, and between October 18 and 21 a series of violent attacks occurred at the houses of politicians and complacent union leaders. On the night of October 21, police opened fire on a group of protesters, injuring three. In the ensuing melee, a constable was fatally injured.
At Bhadreswar Police station, a list of 22 names was drawn up on the First Information Report of the constable’s death (Case No. 239/93), among them, that of Bhikari. It was at about 12:30am on October 31 that ASP Singh and his men entered Bhikari’s house and took him away from his wife, Lalti Devi, his father, and other witnesses. Investigations by local groups have concluded that he was taken to Telinipara police outpost, where he was severely tortured, after which he was taken by jeep to Dharampur outpost, under the Chuchura Police station, where he died. His body has never been recovered.
Lakhichand Paswan spent all his available energy approaching everyone from the Chief Minister of West Bengal to the lowliest administrators at the state government offices trying to find out about his son. His efforts attracted the attention of the media, opposition parties and human rights groups. Bhikari’s wife and father then submitted a habeas corpus petition to the Calcutta High Court (No. 15487[W] 1993). On 8 June 1994 the court ordered the central Criminal Bureau of Investigation “to investigate the matter and report whether Bhikari Paswan was at all arrested or taken into the custody of the police on the aforesaid date”. The Government of West Bengal appealed against the decision in the Supreme Court, but it was upheld.
A year later, on 12 June 1995, the Bureau submitted its report to the effect that, “Bhikari Paswan was indeed picked up by the police party from his residence on the night of 30/31-10-1993 at about 12-30am. His where-abouts since then are not known.” The report also indicated that “the statements of the police officers, drivers and the [District] Magistrate, Hooghly are inconsistent with the records” kept at the police stations. In other words, police records were fabricated to cover up the crime and the stories of various officers and officials became confused in their tangled efforts to throw off the investigators. In fact, an officer of the Central Forensic Science Laboratory earlier invited to examine a carbon copy of the Report had already concluded that Bhikari’s name had been deliberately obliterated by another name being written over the top (CFSL No. 94/D-998, dated 28 September 1994).
So, as far back as 1995 senior police investigators concluded that ASP Singh and his subordinates took Bhikari from his house that night in October: there was no question about the complicity of state agents; the questions that remained related only to what happened afterwards. Why was it then, that nobody was immediately arrested and charged? Because the Indian judicial system responded to the urgent needs of the case by snaring it in technicalities and further enquiries, while the perpetrators and their accomplices further tampered with documentary evidence and harassed the family, along with other witnesses and supporters. The police went so far as to lodge fake criminal charges against Bhikari in various courts, alleging that he had beaten his wife days after the abduction had taken place, even producing women to play the role of the abused wife. On at least one occasion, bombs were thrown at the house of a human rights defender closely involved in the case, and his family threatened.
Rather than immediately ordering the arrest of the perpetrators on the basis of the report it had commissioned, the Calcutta High Court proceeded at leisure with the writ before it. Finally, in March 1998, it effectively turned it into a ball that could be bounced endlessly from court to court, by directing the Chief Judicial Magistrate of Alipur to investigate the case, under a procedure allowed for by sections 200 and 202 of the Criminal Procedure Code. The magistrate opened the case on May 11 (Case No. C-1046/1998), and on September 15 issued summons against the four accused police, Samar Dutta, Swapan Namhata, Harman Preet Singh and Satya Prasad Banerjee, under sections 364/120B of the Indian Penal Code, for conspiracy, and abduction with intent to murder.
All of the accused subsequently obtained bail, although the sections under which they were charged were non-bailable offences. Local human rights group Manabadhikar Suraksha Mancha (Masum) submitted a protest letter to the courts against the granting of bail, and also repeatedly called for the accused to be suspended from their official duties, but with no effect. In fact, in the interim period, the accused policemen were not only not suspended but were promoted, thereby demonstrating the contempt held by the state authorities for the serious charges against them. Harman Preet Singh was sent abroad for a policing mission in Mozambique before being made a Superintendent of Railway Police, and then Deputy Inspector General. Satya Prasad Banerjee was made Deputy Superintendent, while Samar Dutta was promoted to Officer-in-Charge of a police station.
In 2000, the case was passed to the District & Sessions Judge, Alipur, who in turn delivered it to the Additional Sessions Judge of the Vith Court, with the intention that a date should be fixed for trial. However, rather than proceed at that juncture, in April 2000 the judge referred the matter back to the Calcutta High Court on two technicalities: one pertaining to jurisdiction, the second, asking whether the government sanction was required to try Harman Preet Singh, who is an Indian Police Service officer. Masum has observed, however, that the action of the judge in referring the matter back to the high court could have been motivated only by a special intent to protect the accused, as the original order of the high court was sufficient to begin the proceedings. It was not, therefore, any business of the judge to raise further enquiries as to the legitimacy of the case.
The case lay at the doorstep of the high court until only through the gigantic efforts of human rights advocates and Bhikari’s family the case finally saw the light of day in October 2003, when a special bench was called to consider it “immediately”. Nine months later, the bench has held that government permission is not required to prosecute Singh, as ‘kidnapping was not among his official duties as a police officer’. Thus it has taken the Indian judiciary ten years to decide a matter that any informed person with an iota of common sense would have resolved in a few minutes.
It is too late. A chief witness in the case, Bhikari’s father, is now dead. With his passing, the congratulatory note struck by reports of the court’s decision is made nonsense. What meaning can ten years of such deliberations have, in view of this old man’s death? The perpetrators of the case knew well that Lakhichand was ailing. They knew well that without income and other means for prompt and effective medical treatment, he could not survive long enough to outlast their legal manoeuvres. They knew well that no state agency would come to his assistance. What meaning can the proceedings against these men now have in the absence of Lakhichand Paswan? After ten years, the court’s decision is a victory only for the accused.
Although Bhikari is now dead, the real victims have lived on. Lakhichand himself died after a momentous struggle that left him without even having the satisfaction of knowing that the case would proceed to court. Meanwhile, he and his wife had taken care of their three grandchildren after Bhikari’s mother remarried. Among the three, the oldest is Ajay. He is a first class student who, if he had been born to a family of means, would have many opportunities for further study ahead. Unfortunately, being in the care of his destitute grandmother, and ignored by a state whose agents were responsible for the destruction of his family, he can ill-afford to nurse dreams of a bright future. Other members of the family are daily hungry and sick; Bhikari’s sister is suffering from acute tuberculosis.
And there are yet other victims. From the list of 22 names on the original First Information Report, Bhikari is not the only one to have gone missing. According to Masum, at least four of the other persons listed on that Report have been murdered, their dead bodies turning up in different parts of the country, over the last ten years.
So what has the National Human Rights Commission of India and its state-level counterparts done in cases like this? What has the West Bengal Human Rights Commission done, for example, to recommend that where state officers are the alleged culprits the hearings be expedited, rather than obstructed? What obligations does Justice Shyamal Kumar Sen, its chairperson, owe to Bhikari’s family? Shouldn’t a primary duty of these human rights commissions be to intervene on behalf of the children of such persons, to ensure that the state will at least provide for their health and schooling? Justice Sen and his colleagues need not wait decades until a court passes judgment: that Bhikari was last seen in the hands of the police is an admitted fact. The West Bengal Human Rights Commission should today take steps to ensure that a small amount of government money is directed towards the needs of Ajay, his brother and sister, and other immediate family members deprived of his income.
The West Bengal Human Rights Commission has still other obligations. It should direct strong attention towards this case, to ensure that the hearings now proceed without any further delays. And the court case is no impediment to the Commission itself conducting an enquiry into why the courts have been unable to reach a satisfactory conclusion within a reasonable period of time. It is also its duty, and that of its sister organisations around the country, to expose and loudly criticise such delays that make a mockery of all claims to a great tradition of judicial independence in India. The Asian Human Rights Commission has on numerous occasions pointed out that across India, and indeed all of South Asia, thousands of court cases are wilfully neglected or obstructed while witnesses and material evidence are lost. The practices contributing to this state of affairs amount to a gross violation of human rights, yet they are treated as if a matter of mere administrative or bureaucratic inefficiency, rather than one of ineptitude and corruption.
India is a party to the International Covenant on Civil and Political Rights, however, it has not ratified its First Optional Protocol, and neither, the UN Convention against Torture. It is in Bhikari’s case and others like it that the significance of these international standards becomes apparent. If India were a party to the protocol, Lakhichand could have approached the UN Human Rights Committee on the ground that the delay in domestic procedure amounts to exhaustion of local remedies; likewise, the UN Committee against Torture. This would at least have brought some international pressure to bear on the lethargic and negligent authorities in West Bengal, and may have resulted in an instruction to render much-needed support to the victim’s family. It is absolutely the obligation of India’s human rights commissions to do everything within their powers to ensure that the government ratifies these documents and adheres to their standards without delay. While too late for Lakhichand Paswan, this step would at least extend the possibility of some justice within the lifetimes of other victims and their families, if not from the Indian judiciary, then despite it.
Letter by Manabadhikar Suraksha Mancha to the Chief Justice of the Supeme Court of India on the case of Bhikari Paswan
13th October, 2003
The Hon’ble Chief Justice of India,
Sub: Unholy Nexus/alliance of the accused persons in Sessions Case No. 22 (3) 2000 now pending before 6th Addl. Dist. Judge, Alipore, Kolkata, West Bengal with the judicial officers– apprehension thereof
The victim, Bhikari Paswan, was abducted on 30/31st October 1993 at midnight by named police officers posted at Bhadreswar Police Station area in the District of Hooghly, West Bengal and the higher police officials of the district. Initially, there was refusal by the police and the administration to register any criminal case. There was a long legal battle, and the CBI was directed by the Division Bench of the High Court to enquire and report and the proceeding before the High Court culminated in passing into certain directions, directing the CJM Alipur, South 24 Parganas, to enquire and to take steps in accordance with law with a clear direction that the court of competent jurisdiction will be the court of CJM, Alipur , South 24 Parganas. The matter was sent after enquiry by the CJM to the District & Sessions Judges Court, South 24 Parganas and the latter took cognizance under section 193 of the CrPC and thereafter transferred the matter for trial before the court cited under subject above.
We are enclosing herewith a copy of the judgement reported in CLJ for your ready reference and to enable you to appreciate the matters in controversy and the direction of the High Court in its proper and correct perspective.
The High Court delivered its judgement as far back as on 5 March 1998. Even after the judgement of the High Court the trial has not commenced as yet. On 3 March 2000 under Memo No. 59 the judicial officer being in the court cited under the subject above reportedly asked for certain clarifications from the Registrar, Appellate Side, High Court, Calcutta and interestingly, the Registrar, Appellate Side is also sitting tight over the matter. The Vlth ADJ court also sent the entire case record to the Registrar General, AS, High Court, Calcutta, and from April 2000 at least 17 days scheduled for Sessions trial have gone in vain.
We apprehend an unholy nexus/alliance of the accused and the judicial officers and such an apprehension is broadly based on the following reasons:
- Because the court cited under the subject above had no business to ask for any clarification from the High Court when the directions of the Division Bench of the High Court were sufficient for the said court to start the trial.
- Because even assuming that the court cited under the subject above was justified in seeking clarification from the High Court, it was duty incumbent upon the Registrar to provide the court below with the clarifications sought expeditiously, but that has not been done as yet.
May we, therefore, pray for your kind intervention in the matter so that the culprits are booked and the trial is started forthwith.
Manabadhikar Suraksha Mancha (MASUM)
Press release by the Asian Human Rights Commission on the case of Bhikari Paswan (AHRC-PL-57-2004)
India’s judiciary slammed for delaying case for over 10 years
(Hong Kong, August 3, 2004) The Asian Human Rights Commission (AHRC) on Tuesday lashed out at India’s judiciary for delaying a case of forced disappearance for more than 10 years and thus denying the right of the victim’s father, who died last week, to see the perpetrators punished.
The Hong Kong-based regional group called on the National Human Rights Commissions of India and its state-level counterparts, especially in West Bengal, to intervene and condemn such delays in the dispensation of justice, which are common in the country.
The AHRC was reacting to a long-awaited decision by the Calcutta High Court on last Wednesday that it allowed the prosecution of those police officers allegedly responsible for the disappearance of Bhikari Paswan in 1993.
Bhikari, a jute mill worker, was abducted by the then additional superintendent of police Harman Preet Singh and three other men in the early hours of October 31, 1993. He was reportedly taken to a police outpost in Telinipara, West Bengal, where he was tortured to death. But his body has not yet been found.
The victim’s father, Lakhichand Paswan, who witnessed the capture of Bhikari, died on the next day after the High Court gave its decision that government permission was not required to prosecute Singh, now a deputy inspector general, as kidnapping was not among his official duties as a police officer.
“Thus it has taken the Indian judiciary ten years to decide a matter that any informed person with an iota of common sense would have resolved in a few minutes,” the AHRC said in a statement.
“It is too late. A chief witness in the case, Bhikari’s father, is now dead,” it noted.
“He (the father) was robbed of…the right to see the perpetrators punished, not by weaknesses in the case, but by an utterly callous and corrupted system,” the AHRC said.
The Indian judicial system was criticised for entangling the case in technicalities, rather than dealing with its urgent needs, before delivering it to the doorstep of the state’s high court.
“It lay there for years, through disinterest and the machinations of the perpetrators, who have since been promoted to positions of authority, rather than being suspended and properly investigated as should have been the case,” the AHRC said.
The human rights group has repeatedly pointed out that across India, indeed all of South Asia, thousands of court cases are “wilfully neglected or obstructed” while witnesses and material evidence are lost.
“The practices contributing to this state of affairs amount to a gross violation of human rights, yet they are treated as if a matter of mere administrative or bureaucratic inefficiency, rather than one of ineptitude and corruption,” the group said.
India’s human rights commissions, at both national and state levels, should expose and strongly denounce such delays in justice that “make a mockery of all claims to a great tradition of judicial independence” in the country, it said.
The West Bengal Human Rights Commission, in particular, must ensure that the hearings of Bhikari’s case proceed without any further delays, the AHRC urged.
The rights commissions in India also have the obligation to do “everything within their powers” to ensure that the government ratify and adhere to the First Optional Protocol of the International Covenant on Civil and Political Rights and the United Nations Convention against Torture at once.
If India were a party to these international rules and standards, the father of Bhikari could have approached the U.N. mechanism for remedies, the AHRC said. “This would at least have brought some international pressure to bear on the lethargic and negligent authorities in West Bengal, and may have resulted in an instruction to render much-needed support to the victim’s family.”
Footnote: This article is the compilation of a number of documents on the case of Bhikari Paswan. See further: Disappearance of Bhikari Paswan: Trials and tribulations (Masum, 2003); INDIA: Father dies after ten years of waiting for justice for his son (UA-103-2004, 18 August 2004); Ten years of waiting for justice in West Bengal end with a funeral (AS-23-2004, 3 August 2004); India’s judiciary slammed for delaying case for over 10 years (AHRC-PL-57-2004, 3 August 2004). All documents except for the first are available on the AHRC website. Interested persons in India can obtain the first by contacting Masum at (033) 2650 8700.