Bijo Francis, Programme Officer, Asian Legal Resource Centre, Hong Kong
Indians take pride in their country for many reasons, ranging from democracy to unity in diversity. This “pride speech” is often heard from the middle class and neo-rich; people who are sometimes completely disconnected from reality.
The government of India too misses no opportunity to boast about itself. This was seen in the interventions and representations made by the Indian government delegation during the fifth session of the United Nations Human Rights Council in Geneva during June 2007.
Interestingly, the interventions made by the representative of the National Human Rights Commission (NHRC) in the same session were of the same tone as those of the government delegates. The NHRC praised itself and claimed success in promoting, protecting and fulfilling human rights and human values. It was evident that the NHRC was playing the role of a backbench supporter of the government rather than that of an independent agency monitoring human rights.
The NHRC was thus the victim of its own false pride. By depicting itself as an effective, authoritative and independent agency committed to rooting out human rights violations in India it hit upon precisely those qualities that it lacks: independence and authority.
Appointments to the NHRC and state human rights commissions are done at the pleasure of the government. In most such commissions, the appointment of the chairperson is at the whim and fancy of the particular state government. For example, the appointment of the chairperson of the Kerala State Human Rights Commission was successfully challenged in court
This article consists of the edited text from a series of weekly commentaries, entitled Incredible India, written for UPI Asia Online. All of the original columns, and others, can be read on the UPI website: www.upiasiaonline.com/human_rights.
on grounds of nepotism and corruption. However, the person whose appointment was challenged continues as a member of the commission.
The role of the human rights commissions at both the national and state levels is to recommend to the government what action it should take in cases of human rights violations. Whether or not the government heeds these recommendations is another thing. At the Human Rights Council the NHRC implied that its recommendations are followed and that the commission does have some influence upon the government and its actions and polices pertaining to human rights. This is to exaggerate the NHRC’s role.
The state human rights commissions, as well as the NHRC, do not have enough resources to effectively investigate cases brought to their notice. The commissions usually refer cases to the respective state police. When the complaint against the police is thus referred for investigation to the same police department the commission is playing at make-believe.
If the commission enjoys a privileged position with the government of India, as claimed at the Human Rights Council, why has the government not fulfilled the commission’s request for more resources to investigate cases? If the government had provided the commission with the necessary physical and human resources to function effectively, the victims would have had a better chance for redress from the commission.
The NHRC also made a false claim to the council by saying that 100 million Indian rupees (USD2.47 million) had been distributed to the victims of human rights abuses, or their next of kin. One may wonder where did all this money go? It is true that recommendations for payments were made, but in how many cases have these been complied with? Hundreds of victims have not received compensation as awarded by the commission.
So what if the government fails to comply with NHRC recommendations? Any aggrieved party, including the commission, can approach a court. And what happens when a litigant approaches a court in India? It often takes decades for a case to be closed. And if a case is to end up in court anyway, why shouldn’t the victim of abuse simply go straight there instead of approaching the commission to begin with?
Despite its claims at the UN Human Rights Council, no one believes that the government of India respects the NHRC or lends it its full support. The council and similar forums present limited opportunities for human rights agencies like the NHRC to present facts, not fiction. When they instead turn themselves into meek supporters of the government due to false pride and self-deceit, the victims of human rights abuse are the loser
What is wrong with India’s public prosecutors?
In mid-2006, an appointment was made to the office of the district government pleader and public prosecutor in a district of Kerala, southern India. It had taken around a year for the government to decide on who would be appointed to the post. This was because there were several lawyers competing for the post, all of who were willing to pay huge sums of money as bribes in order to be appointed.
Why is the post of public prosecutor so coveted? The reasons are simple, but alarming. The prosecutor works very closely with the police. The prosecutor’s badge gives free access to police stations. A close nexus with the police helps prosecutors to literally “chase” the victims of motor vehicle accidents and represent them in court. In these cases the amount charged in fees can be as high as 50 per cent of the compensation awarded.
Accident claims are not the only source of “additional” income for prosecutors. They collect even more bribes for favorable treatment while bail applications are being considered in criminal cases. The rates vary according to the seriousness of the alleged crime and the importance of the accused. Similar possibilities exist during trials. In a recent case involving a former chief minister in the state of Tamilnadu, it is alleged that the prosecutor collected at least one million rupees (over USD24,000) in bribes to ensure the favorable treatment of the accused during the trial.
And the possibilities for demanding bribes don’t end there. Prosecutors can sell the details of prosecution witnesses to the accused. They may also be paid to force witnesses to make contradictory statements in court to the benefit of the other party. And services rendered as a result of bribery can include framing a person with false charges: in India, anyone can easily be charged with a false case and punished for a crime they have not committed.
The work of the lawyer who was successful in “bidding” for the post of district government pleader and public prosecutor in Kerala is illustrative. He charges a minimum of 2000 rupees (USD50) as a bribe for every bail application. In June 2007 an accused man charged into his room after being released on bail and assaulted him for delaying his release in spite of his having been paid. The prosecutor did not complain, even though he was assaulted in his room in front of his subordinates. However, he has threatened to increase his “rates” since the job involves more risks these days.
The government for its part has shown little interest in any aspect of work by the public prosecutor. The condition of the prosecutor’s offices in any local court throughout the country speak volumes about how little regard is had to their role. Most prosecutors do not even have a telephone line in their offices, let alone fax machines and the Internet, even though the office depends on communication with various police stations in order to effectively perform its work.
The prosecutor’s office in India has been reduced to that of a brokering house, where deals between criminals and the police are struck. It is in some parts a dreaded place for the ordinary person, much the same as the average police station. Attempts to reform the criminal justice system in India must start by addressing these basic issues.
Low-caste children still starving in Uttar Pradesh
Mulayam and Maya, both five-years-old, and Rema, two, live in the Raitara Musahar ghetto in the village of Pindra in Varanasi District, Uttar Pradesh. Mulayam suffers from Grade III malnutrition and has already lost vision in his left eye. Maya and Rema suffer from Grade IV malnutrition, which is life- threatening. They may be dead already.
The three children are not fortunate enough to receive any medical care or, needless to say, enough food. All three are from the Musahar (literally translated as “rat-eating”) community. The Musahars are considered to be “untouchables” in the Hindu caste system. They live in appalling conditions and are forced into bonded labour and other forms of exploitation by the upper castes. This occurs mostly at the hands of the neo-feudalists of the state— the Patels and Yadavs—otherwise known in the rest of India as members of the Other Backward Community, or OBC.
After the implementation of welfare policies for the backward communities in India, the Patels and Yadavs have taken over the position once occupied by Brahmins. They have quickly discovered the benefits of an economy rooted in caste-based discrimination. The reign of former state chief minister Mulayam Singh, a Yadav, helped this system along through the most corrupt means.
The land that the Patels and Yadavs have acquired by various means, often illegal, requires a large amount of labour. The easy option has been to make use of members of the scheduled castes and tribes, including Musahars, who even today are deprived of any form of education or employment other than forced labour on farms. Though they live amid lush and fertile fields, they are not allowed to take a single grain to their houses from these. A family may get less than the equivalent of a single US dollar for a week’s work, and be forced to depend on discarded food to survive.
The Patels and Yadavs, who have now become village heads and landlords, prevent the Musahars from getting medical care and access to welfare schemes from which the Patels and Yadavs themselves benefit. Moreover, while the public food distribution shops, now also under the control of the Patels and Yadavs, receive food grains in the name of the Musahars and other backward castes, the grains are fed to the cattle, not to the people. In fact, the bulls, cows and buffalos of the Patels and Yadavs are better fed than members of the untouchable communities who work for them.
Mayawathi, the new chief minister of Uttar Pradesh, though herself belonging to the outcaste Chamar community has done little to resolve the exploitation and destitution of the Musahars. She has declared at least a few dozen times that the eradication of caste-based discrimination is her government’s priority, but practically nothing has been done toward achieving this policy objective.
One problem is that any policies and programs that the state administration initiates to address caste-based discrimination must be locally implemented. This requires the cooperation of the Patels and Yadavs who literally rule the localities. The public service is so corrupt that even the most willing head of state cannot correct it without implementing strong measures. The police and judiciary have withered to such an extent that to reinforce these public institutions would require a substantial amount of effort for a considerable period of time.
Thus although the chief minister has spared no public space to claim that caste-based discrimination will not be tolerated by her government, translating this speech into action will take much more effort. So far there has been nothing to show for it. If this lack of action continues, Mayawathi will start to look no different from her predecessor. Yet while her predecessor helped members of his community and the Patels, whatever Mayawathi does, she will never be accepted as either a Patel or a Yadav.
Varanasi’s wholesale market for women
Varanasi, or Banaras, is described on the world map as a holy city for both Hindus and Buddhists. What is less known about Varanasi is that the city is also a wholesale market for women. Shivdaspur, within the jurisdiction of the Maduadih police station, is known for its red light district. Here women and children are brought from various parts of India and neighboring countries for sale into the sex trade.
The women and children who arrive here are first “seasoned”: they are raped several times by “trainers” before being made available to customers. The trainers include local politicians and policemen. After the “training”, they are expected to entertain local customers for a while before being sold to other brothels across the country and abroad.
The involvement of police and politicians ensures that there is little interference with the business. Anyone who tries to interfere finds the wall of protection so strong that it is practically impenetrable.
In the past few years Guria, a local human rights group, has tried to rescue dozens of women and children who have been brought to Shivdaspur. The group gets inside information about the trade. Thus after being informed that on 25 October 2005 a batch of women would be sold, Guria decided to launch a rescue operation. Beforehand it informed the Maduadih police station, even down to the
However the police, in spite of repeated calls, failed to show up. Finally, with no other means, Guria went ahead by itself. Thereafter, the police did appear, and promptly chased away the group’s volunteers. They later charged Guria’s activists with allegedly breaking into houses and destroying property.
In response, there was an immediate public outcry against the police and the flesh trade flourishing under their protection. Finding their involvement in illegal activities exposed, the police registered cases against several pimps and a few other people connected with the sex industry.
However, their investigations overlooked the kingpin of the sex trade in Shivdaspur, Rahmat Khan, who continued to collect money from brothels and walk openly on the streets, even though an arrest warrant had been issued for him. The local police, including high officers, feared that if Khan were arrested he might reveal sensitive information, exposing some of the police officers and the flourishing trade under their watch. Consequently, Khan was shot dead in November 2005, and his body was found in a remote village away from the city. The police version was that he was shot while resisting arrest. With Khan now dead, the police believed they had saved themselves from prosecution and further embarrassment.
The case against the pimps and the countercase against Guria are both now being fought in the courts. Each time the case against the rest of the pimps is taken up by the trial court, Khan’s wife, one of the accused along with several other criminals, obtains a stay order from the Allahabad High Court. In response to these stay orders, Guria files an objection with the court and has the stay order vacated. Although opposing a stay order is the duty of the state prosecutor, the prosecutor in the high court allows the application to be heard unopposed. The court, which is supposed to consider each application on its merits irrespective of whether it is opposed by the state or not, allows the application without the least hesitation. Guria is now caught in a battle in which it is playing the part not only of human rights group, but also those of state prosecutor and the police.
To flourish, crime depends upon the help of corrupt law enforcement officers. The trafficking of women and children is no exception. For as long as the police keep benefiting from the sex trade in Varanasi, the city will continue to remain a city of widows and prostitutes, as well as holy cows.
Chhattisgarh for sale!
Want to buy a river? Welcome to Chhattisgarh! If you are not interested in a river, it can offer you a forest or a hill. You can do anything you wish with these natural resources. Once bought, you can drain the river dry, bulldoze a hill or clear a forest. It is all yours! If you have any problem with the local people, the state government will take care of them. Those who protest will be charged with fabricated crimes and thrown into prison indefinitely.
Chhattisgarh has one of the worst records in India in terms of meeting basic human needs, including food. The state also has the largest tribal concentration in India as a percentage of the population. Starvation deaths are especially common among the tribal communities. Health and sanitation conditions among them are the worst in the state, and state officials routinely abuse their authority.
Meanwhile, day after day the local population discovers that natural resources are being sold from underneath them. The rivers, for example, are being sold to “water corporations”, which then prohibit villagers from access. Leaseholds over mineral- rich lands result in forced evictions almost daily. Evictees are quarantined in camps throughout the state. Those who fight back are charged with fabricated crimes and imprisoned.
So it is not surprising that Chhattisgarh, which was only formed in 2000, has not witnessed a single violence-free day in its seven-year history. As its administration has a zeal for selling the state’s natural resources to the highest bidder, it has increased the affinity of ordinary people with the armed resistance promoted by Naxalite forces there. The state administration, in a failed attempt to curb the Naxalites, a left- wing revolutionary group, has armed local populations that it deems to be sympathetic. This state-sponsored private armed militia is ironically called Salwa Judum, meaning Peace Mission.
The Salwa Judum has been formed under the leadership of a local politician, Mahendra Karma. Even minors are armed with weapons and trained to kill. The Salwa Judum personnel are given a piece of cloth printed with the words “Special Police Officer”, which is pinned to their shirt. This cloth badge guarantees impunity. Any crime committed by a “special police officer” is left unchallenged by the state’s law enforcement officers.
To keep opposition at bay, the state administration has also passed the Chhattisgarh Special Security Act, 2006. Even though this law violates several constitutional guarantees, the Supreme Court of India has repeatedly adjourned hearings into its legality.
In the past, the court resorted to similar tactics when the validity of the Armed Forces Special Powers Act, 1958 was being challenged. After several attempts to challenge this law, the court in the mid-1990s finally declared that it could not be quashed, but passed directions on how it should be used. The law remains in force to date and is misused across India’s northeastern states. It has resulted in a large number of gross violations of human rights, including rape, torture, forced disappearances and extrajudicial killings, all of which are carried out with impunity.
Under cover of such draconian laws, state governments are able to silence any opposition from within. It goes without saying that a law that bestows unbridled powers on any agency has been written in order that it serve as an instrument of abuse. It is
legally correct to say that legislation cannot be struck down on the basis of mere apprehensions of misuse. However, if a law is designed in such a way that its very existence will inexorably lead to human rights violations, the Supreme Court should exhibit the common sense and discretion to strike it down.
In Chhattisgarh anyone who speaks up in favour of ordinary people is branded as anti-state. In May human rights activist Binyak Sen was arrested and detained for alleged association with Naxalites. Then in August, the government ordered the closure of offices and a halt to all activities of the international medical aid group Médecins Sans Frontières (MSF), alleging that it was providing medical help to Naxalite cadres in several villages. Investigators have failed to produce any evidence to link either MSF or Sen with the rebels. But anyhow their shared crime was to care about the rural people there.
The international community and national government can no longer be silent over what is happening in Chhattisgarh. Such lack of action has led to the “disturbed zones” of the northeast; similar inaction will soon turn Chhattisgarh into another casualty of India’s chaotic modernization.
Dynamics of the Rajasthan drug trade
Reshma never knew what she was carrying. She was asked by a “friend” to go to Ajmer in Rajasthan and hand over a small parcel, which was supposed to contain letters to the person waiting for her at the railway station. Instead railway police met her there; her parcel was found to contain drugs, not letters. Now Reshma is in prison awaiting trial. She was told by her lawyer that if found guilty she will be sentenced to seven years.
Conditions in prison are uncomfortable, of course, but worse awaits a female detainee. Prison officers may use her to satisfy their sexual urges; she may even be taken out of the prison for “external services”, mostly in the sex trade. This violence against women occurs with the connivance of various government officers, including those in the judiciary.
Every person detained awaiting trial, perhaps for years, must have their remand extended by a judge every 14th day, at which time the detainee must be produced on the court premises. However, detainees, women in particular, are not brought into the building. Instead they may be transported elsewhere. The presiding officer extends the remand without ever seeing the person. Meanwhile, with the connivance of the prosecutor, court staff and judge, the women are elsewhere being forced to meet “clients” who book them through the prison officers. Thus by the time that a female detainee has her case finally tried—perhaps after five to 10 years—she is likely to be emotionally broken and physically unfit for anything other than to wait for the imminent death that looms, having contracted HIV/AIDS or other serious sexually transmitted diseases.
Meanwhile, in and around Manur, the poppy keeps growing. Though the license for most farmers is for a small patch of land, the actual area of cultivation is usually much larger. The excess is brought to market through routes watched over by law enforcement officers. However, now and then they make a few arrests and recover some drugs for the sake of the record. Reshma is a victim of one of these operations.
The trade also depends upon the support of local politicians and state-level party leaders. Political parties support the drug trade irrespective of ideologies and affinities, as the huge amount of money involved also funds their activities. In the recent past, the ruling party and its factions distributed weapons to followers in the name of religion. Naturally, a large amount of money was required to procure these arms. The party leadership ordered cadres to raise money locally. Enter the drug mafia.
Yet another group within the state structure supports the trade: the judiciary. An alarming number of court staff as well as presiding officers in the state judiciary are corrupt. The state government has spared no effort to induct officers favourable to its interests into the system. The policy is meticulously followed in appointments ranging from court clerks to high court judges. In such a corrupt system, it is difficult for officers with integrity to survive.
While the state of Rajasthan boasts about its culture and tradition, much less is known about its role in promoting and supporting the international drug trade. Needless to say, the role of a fallen justice system is never debated while human rights groups inside and outside of Rajasthan lament the deteriorating condition of the rule of law there.
Kerala needs more than a police complaints authority
The political parties that form government in Kerala have a special technique to dispel public opinion. Whenever pressure builds over a particular issue, they constitute a commission of inquiry.
Recently, one was constituted under a retired high court judge to inquire into alleged custodial deaths. Its appointment was widely advertised. However, the public was not adequately informed on ways to contact it. After wasting some public money, it predictably exonerated the government and state police. Public figures in Kerala, who used to take to the street and block traffic to protest about issues like droughts in other countries, had nothing to say about the whole thing.
Unfortunately, police violence is not news in India, and Kerala is no exception. Various governments have used the police to kill, torture and terrorize ordinary people. The police are in exchange permitted to continue with all sorts of unethical and illegal practices.
In Kerala, “policeman” has become a euphemism for ineptitude. What can one expect, when recruitment, transfer and promotion are all determined by political allegiances and bribes? However, the state government is now facing new pressure to reform the service. This time though it is not from within the state, but from the Supreme Court of India.
The trouble for the government began when Prakash Singh filed a case in the Supreme Court requesting its intervention to remove the unwarranted control that state governments have over policing across India. Ironically, Singh was also a police officer. The Supreme Court finally decided the case, ordering state and central governments to de-link the police from politicians. But the court, based on its experience, knew that the state governments would never implement its directives without pushing. Thus, it set deadlines to implement its orders.
The government of Kerala tried to rally a few other state governments to file a revision against the order on grounds that it infringed its authority. However, the court refused to budge, leaving no other option than for its directives to be implemented.
It is at this point that the government of Kerala decided to constitute a new policing institution. On February 12, it set up the Police Complaints Authority, established in accordance with the Kerala Police Act (Amendment) Ordinance of 2007.
While a welcome development, this decision is not in complete compliance with the court’s directive. The ordinance, issued to meet the deadlines set by the Supreme Court, has in fact diluted its orders. For example, the direction of the Supreme Court is that the “recommendations of the Complaints Authority, both at the district and state levels, for any action, departmental or criminal, against a delinquent police officer shall be binding on the concerned authority”. However, the ordinance has reduced this to:
Recommendations of the Authority . . . against a delinquent police officer shall be binding in so far as initiation of departmental proceedings or registration of a criminal case is concerned. Such recommendation shall, however, not prejudice the application of mind by the inquiry officer or the investigating officer when he is conducting the departmental inquiry or criminal investigation, as the case may be.
Similarly, the ordinance has reduced the power of the state and district level complaints authorities to that of civil courts. The Supreme Court’s direction is to provide the complaints authorities’ independent investigative facilities to investigate a complaint as in a scientific criminal investigation. Under the current ordinance, no such provision exists.
Anyhow, now that the state government of Kerala has begun setting up the Police Complaints Authority, the government must immediately ensure that the authority will have the resources it needs to serve its mandate. The problem the government might face, if it fails to do so is that, is that it will again have to convince the highest court of India that it has done what it is legally bound to do.
Nandigram shows collapse of rule of law in India
India claims to have a legal system based on its constitution, with respect for human rights and the rule of law. But often individuals and interests overpower the constitution; human rights are usually the first casualty of executive and bureaucratic fiat and the rule of law collapses at the whim of people in power.
A recent example was the killings in Nandigram, in West Bengal: the outcome of a brewing discord between local farmers, the state government, and the henchmen of a political party that have ruled the state unchallenged for the past three decades.
On 14 March 2007 at Nandigram, an agrarian hamlet in East Midnapur District, 14 people, including children, lost their lives. In addition, several people were injured, houses were vandalized and burned, and women were raped. Why did it happen?
In Nandigram, the government wanted land to establish a special economic zone for a private business group. The news disquieted the villagers, whose mainstay is agriculture on small patches of land. They knew that the compensation usually offered by the government would never be enough for their survival in the future. Desperate, they began to organize and resist the government’s decision with the support of some political parties and opportunistic interest groups. On the fateful day, the police and other government security forces forced their way into the village, trying to break this resistance, with fatal consequences.
The rule of law places everyone on an equal footing, but where was this egalitarianism when the attempt was on to force thousands from their holdings without proper compensation for the economic benefit of a few? The logic of development requires that those who make sacrifices should partake in its benefits. In Nandigram, this tenet was missing. Consequently, the local people had every right to be wary of the outcome.
Another foundation of the rule of law is that the will of the people should prevail over that of despots. But where was the government reflecting the people’s will in Nandigram? In Nandigram, it instead brutally unleashed police and henchmen on the people. It now says that the incident was unfortunate and avoidable, but it is too late. People are dead and injured, and their property has been destroyed.
Sadly, police shootings and killings are not isolated incidents in India. The experiences of people from Kalinga in the state of Orissa, in the northwest region of the state of Rajasthan, and Mutanga in the state of Kerala mirror those of the villagers in Nandigram. Media coverage generates debate, but it quickly evaporates as the news passes from the public’s consciousness. Some inquiries and commissions follow, but the illegitimate use of force is never seriously questioned or punished.
What will be the destiny of the villagers in West Bengal? If there too the culprits are never brought to court, India may perhaps lose one of its last chances to hold itself up to claims that it is a democracy based on the rule of la