Asian Human Rights Commission, Hong Kong
Evaluating the human rights record of a country like India, with its varied culture, population and diverse demography is a challenging task. A thorough analysis of the human rights situation of any country requires more than peripheral knowledge about the country. The essence of a country is the sum total of its people, culture, justice mechanisms and polity. Within the limited scope presented by the knowledge gained through the work of a regional human rights organisation, an analysis that evaluates the entire spectrum of human rights issues concerning India is not possible.
The Asian Human Rights Commission (AHRC) through its continuous engagement in India has gained considerable insight into specific human rights concerns there. The issues taken up by the AHRC in India are largely concerning civil and political rights, some aspects of the economic social and cultural rights like land rights and the right to food, and rights against discrimination, particularly concerning caste-based discrimination. Throughout the discussion, emphasis is given to international norms and standards, as a yardstick to measure the promise and the performance.
Custodial Torture
Custodial torture is the most commonly used investigative tool by the law enforcement agencies in 
India. Often the entire criminal investigation depends upon the confession statement extracted from a suspect. In the process of extracting confession, the law enforcement agencies employ different forms of torture. The practice is so widespread that often even the presence of a lawyer or a person interested in the suspect who turns up at a police station inquiring about the suspect does not serve as a deterrent for the law-enforcement agencies from torturing a suspect.
This article consists of extracts from the Asian Human Rights Commission’s State of Human Rights in Asia 2008 report. Contents of the report are available in PDF format by country online at the AHRC website, www.ahrchk.net. Interested persons may contact the AHRC to obtain printed copies of the full report.
Torture is not a crime in India. The only provision in law that can be used to charge a law enforcement officer for resorting to torture are sections 330 and 331 of the Indian Penal Code, 1860 (Section 330: Whoever voluntarily causes hurt for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, … shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine [section 331 relates to causing grievous hurt and the punishment is enhanced to ten years imprisonment]). Contrary to the gravity of the crime, being committed by a law-enforcement officer, the Penal Code does not attach any additional weight to the crime of torture. In addition, the fact that the crime is often committed within a police station that effectively rules out the possibility of an independent witness, and the absence of an independent investigating agency makes it almost impossible to successfully prosecute a crime of torture, a fact observed by the UN Human Rights Committee in its concluding observations on India under the International Covenant on Civil and Political Rights (CCPR/ C/79/Add.81, 4 August 1997). The absence of successful prosecution and the relative difficulty of even lodging a complaint against a law-enforcement officer have provided law-enforcement agencies with a high degree of impunity. This has resulted in an alarming increase in the cases of custodial torture and other crimes committed by law-enforcement agencies in India.
Torture is practised mostly against the poor. The widespread use of custodial torture has isolated the ordinary people from the law-enforcement agencies. It is used as a tool for social control. Government officers indirectly endorse the use of torture. For instance, in June 2008 the speaker of the Kerala Legislative Assembly while addressing a gathering of police officers during the annual meeting of the State Police Association said that the state government does not agree with the argument that police officers must refrain from the use of force while investigating crimes. The minister further said that often use of force is the only way to “make suspects tell the truth” (see Bijo Francis, “India still tolerates torture”, UPI Asia, 23 June 2008).
In most of the states in India where feudalism continues in its full vigour, torture and the fear created by the use of torture by the law-enforcement agencies are used to suppress peasant uprisings. Landlords thwart any attempts by the peasants to claim proper wages or own land by conniving with the local police. Landlords bribe police officers to raid peasant houses to pick up their leaders and register false cases against them. It is not rare in such raids for the police to molest or even rape peasant women. This situation in many parts of the country has become a catalyst to anti-state armed movements. The feudal lords and police target human rights defenders who speak up against such practices.
In addition to the absence of a legislative framework, there is no institutional framework in the country to prevent the prac- tice of torture. For example, if a person needs to file a complaint against a police officer, the only remedy for the person is to file a complaint against the officer with the officer’s superior. Superior officers, who directly and openly endorse the subordinate officer’s action, often discourage such complaints. Such an attitude results in the complaint not being investigated at all. The next option available for the complainant is to approach the court. Though the court can direct an investigation, none other than a police officer conducts the investigation. This is because there are no other independent agencies within the country that could accept complaints against police officers. Even agencies like the Central Bureau of Investigation have a large number of police officers on secondment.
The prime minister of India had in January this year issued a public statement that India would ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It was the first time for any prime minister to make such a statement. However, since then nothing has been heard from the government regarding this.
According to a June 2008 report of the National Human Rights Commission (NHRC) of India, in the past five years on an average at least four persons have died in custody every day in India, most of them from torture. Various sources within India have expressed concern about the alarming increase in the use of torture, including the NHRC, which has also recommended that the government must not only ratify the Convention against Torture as early as possible, but must also come up with domestic legislation/s to address this issue. The NHRC has further expressed the need to set up an independent agency in the country to investigate complaints against law enforcement officers, particularly concerning the use of torture.
The NHRC in its report to the Human Rights Council during the Universal Periodic Review of India had also recommended the same (summary prepared by the Office of the High Commissioner for Human Rights, A/HRC/WG.6/IND/3; 6 March 2008). In the National Report submitted by the government prior to the review, it assured the council and its members that the country would soon ratify the Convention against Torture (A/ HRC/WG.1/IND/1, para. 38). The council in its concluding observations encouraged the government to ratify the convention and its Optional Protocol without any further delay (A/HRC/8/ 26, 23 May 2008). Reiterating its position, the government has further assured the Council that it will ratify the Convention soon (A/HRC/8/26/Add.2, 11 June 2008).
Continued use of torture to subdue the public and command obedience by the law-enforcement agencies results in low morale of the law-enforcement agencies themselves. Curbing and preventing the practice of torture is a prerequisite for the overall improvement of rule of law in any country and India is no exception. A society otherwise deeply divided on the basis of caste, religion, language, culture and economy cannot afford a police force with low morale. Prohibiting torture and enforcing accountability on those who practice torture within the police is one of the primary steps that the administration must implement in India.
Instead of posting officers on secondment to the central investigation agencies, a complete independent and competent agency must be created to investigate complaints against law- enforcement officers. Rather than depending upon the two- century old, obsolete provisions in the Penal Code to punish officers practicing torture, a new law must be created to criminalise the practice of torture in tune with the internationally accepted norms concerning torture. As of now no steps in the above directions are visible or even debated in India. All that has been said and heard are occasional statements by the prime minister that India will soon ratify the Convention against Torture. It appears that the political will on this aspect is limited to this rhetoric. The sad reality is that the continuation of the rhetoric will not merely maintain status quo, but will in fact be a contributing factor to the further deterioration of rule of law in India and ultimately India itself.
Bonded labour
India is one of the founder members of the International Labour Organisation (ILO). It has ratified 41 ILO conventions and one protocol. It has legislated several domestic laws concerning the right to work like the Payment of Wages Act, 1936 and the Minimum Wages Act, 1948. To meet the treaty obligation under article 8 of the ICCPR, India has also enacted the Bonded Labour System (Abolition) Act, 1976, which prohibits the practice of bonded labour.
Under section 6 of the 1976 act, custom, tradition, contract or agreement cannot be held valid to justify the practice of bonded labour. But when each case of bonded labour is thoroughly looked into, one can find the employer justifying bonded labour precisely on these grounds.
A case reported by the AHRC concerning Gehru and Bothu Musahar reveals this phenomenon. Gehru and Bothu are from the Musahar community. Musahar literally means ‘rat eater’. Musahar are a nomadic tribe in India. They live scattered in the northern states like Uttar Pradesh, Jharkhand, Uttranchal, Orissa and Bihar. Owing to the shrinkage of natural resources, the Musahar in the past two decades have started settling down in remote rural areas in these states. However, due to the lack of government care and proper support, the Musahar families have soon become dependent upon upper caste landlords for their survival.
Gehru and Bhothu had to borrow money from their landlord Rajendra Prasad Tripathi, for which Tripathi got them to work at his brick kiln. The wages paid were so low that they were unable to repay the loan. It was just a matter of weeks that the families, including their children, were forced to work for Tripathi. As the work in the kiln demanded strenuous labour in all weather conditions, the more the families worked, the more they became sick. This forced Gehru and Bhothu to borrow further money. Until the case was exposed by the AHRC, Gehru and Bhothu along with their families worked for Tripathi.
When the case was exposed, the Varanasi District Magistrate was under pressure to take action. The magistrate initially denied the case and its facts. Under pressure, he reluctantly ordered the local police to investigate. The police after accepting a bribe from Tripathi furnished a false report denying the case. The AHRC exerted more pressure, by following up the case through its Urgent Appeals Programme. The magistrate was finally forced to visit the kiln where he found not only Gehru and Bhothu, but almost the entire Musahar village, working as bonded labour. The Musahars were released from bonded labour and Tripathi directed to pay a fine.
Tripathi, finding his scheme exposed, threatened the Musahars and members of a local human rights group, the People’s Vigilance Committee on Human Rights (PVCHR), that he would make sure that the Musahars were punished for their audacity to lodge a complaint with the PVCHR, and also the PVCHR for meddling with his business. Threats of this nature in the rural areas in India are to be taken seriously. And Tripathi did mean business. He bribed the police officers at the local police station to file fabricated cases against the PVCHR members and Gehru and Bhothu. The police did exactly what Tripathi wanted. This case is being currently being contested in the Varanasi Magistrate’s Court.
Here is the interplay of caste, corruption, and the failure of the local administration leading to a series of rights abuses of the poor. Musahars being considered as untouchables found it impossible to find work elsewhere. This resulted in hunger deaths in the Musahar village. As of now the PVCHR provides life support to the Musahar village by finding short-term and long-term employment for them. Some of them, including Gehru, are now employed in another brick kiln where they earn a decent income.
Of the millions employed as bonded labourers, almost 95 per cent are from the Dalit community. In a survey conducted by an Indian NGO, the Mine Labour Protection Campaign, in 2003 about 95 per cent of the bonded labourers among the three million mine workers in Rajasthan alone, almost every one of them are from the Dalit community. Human Rights Watch estimated in 1999 that there were 40 million bonded labourers across India (Broken People, p. 139). The Government of India itself admits that about 85 per cent of bonded labourers are Dalit (Ministry of Labour, Annual Report 2000-2001, p. 181; quoted in Human Rights Watch, Small Change, January 2003, p. 41).
The ILO Committee of Experts observed in 2003 a “certain reluctance” by state governments in India to participate in efforts to identify and release bonded labourers. The former Labour Secretary for the central government, Dr L Mishra, was less circumspect. He noted at a presentation to the National Consultation on Forced Labour of 21-22 September 2000 that, “There have been cases where the magistrate has refused to issue a release certificate even after all the ingredients of bonded labour system have been proved beyond doubt.”
Prevention of bonded labour is impossible without complete eradication of caste-based discrimination. The practices of caste- based discrimination and bonded labour cannot be eradicated in India without the effective implementation of domestic laws that prohibit these practices. Bonded labour and caste-based discrimination are crimes in India. To prevent these crimes, the only deterrence is effective investigation and prosecution of those who engage in these practices. This requires the active engagement of law-enforcement agencies in India. With the law- enforcement agencies and their functions in absolute chaos and ineptitude, these evil practices will continue.
Freedom of religion
Religion, and violence sanctioned by religion, is used as a tool for social control in India. Religion determines politics, shapes governments and decides their fates along with those of millions of Indians. It is the most common denominator of social identity. Yet in theory India is a secular and democratic republic.
Religious violence is a growing problem in parts of India. In the state of Orissa, governed by a coalition government that includes the Bharatiya Janata Party (BJP), Hindu extremists attacked Dalit Christian villagers and churches in the Kandhamal district over the Christmas holiday 2007. Approximately, 100 churches and Christian institutions were damaged, and 700 Dalit Christian homes were destroyed causing villagers to flee to nearby forests. More violence followed in August 2007 after the murder of a prominent Vishwa Hindu Parishad (VHP) leader. Led by a militant wing of the VHP, mobs torched churches and homes, displacing tens of thousands of Dalit Christians, many of who are still in relief camps. Since then, anti-Dalit Christian attacks have spread in the central state of Madhya Pradesh, Karnataka and Kerala in the south, and to Uttar Pradesh in the north. Some of the worst cases have occurred in Karnataka, which earlier this year voted in the Hindu nationalist party, BJP.
Unfortunately, convictions over religious violence in India are rare. In March, the UN Special Rapporteur on freedom of religion, Asma Jahangir, warned in a press release of 20 March 2008 after her visit to India that the minimal prosecutions and “political exploitation of communal tensions” put India at risk of more violence. In fact it did. In a two-month-long operation spreading through September and October this year, there were nationwide arrests of ‘suspected’ Muslim terrorists in India. The terrorist attacks and bomb blasts sponsored by Islamic fundamentalist groups operating from inside and outside India that killed an estimated total of 400 persons in Uttar Pradesh, New Delhi, Rajasthan, Gujarat and Assam prompted state governments in these states to detain and quarantine about 1800 Muslims. The state administrations claimed that in the absence of any documentary proof to show their Indian citizenship, these are persons suspected to be overstaying with malicious intent in India after arriving from Bangladesh or Pakistan. In a country where an estimated 30 per cent of the population lacks any form of identity document, most of those who were arrested found it impossible to prove to which country they belonged.
To further deteriorate matters in Assam, the homegrown Assam for Assamese groups started attacking Muslims who had long-settled in that state. Most of their forefathers had arrived in Assam prior to 1947 as estate managers and plantation labourers for the British. Lynching and looting of Muslims still continues in Assam, though it is rarely reported in the media. The state administration, sensing the popular sentiment against non-Assamese, has done practically nothing to prevent the violence. This prompted the Muslims to form self-help groups to prevent destruction to their property and to save themselves from predominantly VHP-sponsored Assamese fundamentalists.
Even a relatively peaceful state like Kerala in the south of India is not immune to such problems. On November 23 this year the state police uncovered some 20 homemade bombs at the residence of a politician in Kerala. The bombs were found wrapped in plastic bags, placed in a bucket and buried in a hole on the property of Vipin Das, a leader of the Hindu-nationalist organisation, the Rashtriya Swayamsevak Sangh (RSS). The RSS is one of India’s mainstream Hindu fundamentalist political parties. It claims a humanist platform aimed at revitalizing the spiritual and moral traditions of India. It requires only basic commonsense to understand that humanism and homemade bombs have nothing in common. In the Indian context, however, what is common is the unholy nexus between violence, religion and politics.
Examining the violent events in Orissa provides alarming insight into how the state administration failed to prevent the violence and once it started failed in curbing it. Even the NHRC and the central government acknowledge that the response of the state government apparatus, the police in particular, was intentionally slow (Reuters, 28 October 2008). There are confirmed reports that a Catholic nun was raped by a VHP mob while police officers were looking on (“Five cops suspended in the nun rape case”, Indian Express, 31 October 2008). It is also widely acknowledged that had certain criminal elements in the VHP been booked and punished for the violence they had committed in the past, the 2008 violence in Orissa might not have happened.
Mainstream religions in India are all equally responsible for advocating violence, but given the extent of religious violence in India, which amounted to at least 30 high-intensity incidents in this year alone where more than one person lost life in each of these incidents, what stands out is the intolerance of the Hindu upper caste against the rest. This caste-based intolerance, which has spiraled out of control, dominates the social and political spectrum in India.
What is being witnessed in India is an uprising of fundamentalist Hindu forces against all challenges to traditional Hindu practices, particularly the caste system. It is natural for a system that exploited millions of people for more than 3000 years to find means to regain dominance. The caste system that exclusively benefited the upper caste Hindus, the Brahmins, Kshatriyas and the Vaishyas, might not have faced such an onslaught upon its status quo other than during the four hundred years that followed immediately after the life of Buddha. Since time immemorial the three Hindu upper castes have benefited from the caste structure and have deprived the lower castes, particularly the Dalits, from land, education and a better living. In short, the caste system maintains an enforced social order where the upper castes enjoy all privileges while the lower castes are not expected to claim equality of any form in society. Beneath the skin of communal unrest lives the beast of caste domination. The Hindu fundamentalist political parties operating in India are engaged in nothing other than making use of the frustration of the upper caste Hindu for political gains.
Fair trial
The right to speedy trial has been endorsed in almost all relevant international conventions, most notably the ICCPR, which India ratified on 10 April 1979. The ICCPR provides explicitly for the right to speedy trial. Article 9(3) declares that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”.
Right to fair trial without delay, though is not mentioned in the constitution, is a fundamental right in India. In Hussainara Khatoon v. State of Bihar [1980 (1) SCC 98] the Supreme Court explicitly held that speedy trial is part of article 21 of the constitution, guaranteeing right to life and liberty. In this case the court said,
We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that article that some semblance of a procedure should be prescribed by law, but that the procedure should be “reasonable, fair and just”. If a person is deprived of his liberty under a procedure which is not “reasonable, fair or just”, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release.
In the Indian context however, it is a well-settled proposition that the international conventions and norms are to be read into domestic law in the absence of enacted domestic law occupying the fields, when there is no inconsistency between them. The Supreme Court of India in Nilabati Behera v. State of Orissa [1993 (2) SCC 746] took a view that in the absence of any specific domestic law an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right as a public law remedy under article 32, as distinct from the private law remedy in torts. One of the questions that the court had to decide was concerning compensation. The court said that there was no reason why international conventions and norms could not be used for construing the fundamental rights expressly guaranteed in the Constitution of India.
In India, neither the constitution nor any existing laws or statutes specifically confer the right to speedy trial on the accused. Most of the existing laws also do not provide any timeframe in which a trial must be concluded; in cases where some timeframes have been provided, the courts have held them to be “directory” and not “mandatory”. In procedural law, for example the Code of Criminal Procedure, 1973, provides a statutory time limit to complete an investigation. Section 167 further provides that a failure to complete investigation within the statutory timeframe shall lead to release of the accused on bail. However, this in actual practice never occurs. In a real life scenario delay is synonymous with litigation in India. A decade of waiting is not much time in deciding a case in India (see examples in “Judicial Delays to Criminal Trials in Delhi”, article 2, vol. 7, no. 2, June 2008). This is equally applicable to civil and criminal trials. The legal process in India is always protracted, with parties being made to spend an unlimited amount of money and to run from one place to another in pursuing their claims in court.
There are numerous reasons for this protracted process, which in fact could be eliminated by conscious efforts. In civil cases one such delay is primarily caused by technical snags and delaying tactics by the lawyers. The attitude of the judges once the case has finally been heard, resulting in the reservation of any open pronouncement of the judgement for years, is another contributing factor. In criminal cases the delay starts from the very inability and often refusal of the investigating agency to submit a charge sheet in time after the proper completion of an investigation. Even if the charge sheet is submitted, the prosecutors’ office also plays a role in delaying the process. Often many courts do not have sufficient prosecutors to represent cases as and when they are taken up. In the Sessions Court, Thrissur, Kerala State for instance, prosecutions were stalled for years due to the fact that as on deputation from another court. By the end of one year the number of criminal cases pending disposal before the court was so large that it would take several years to dispose these cases, given the fact that every year the number accumulates to the existing backlog. It is shocking to note that when the backlog of cases increases, judges connive with police officers and force people to plead guilty on charges so that cases can be summarily tried.
Another element causing delay in proceedings is the lack of infrastructure to deal with evidence. The police in India are neither trained to gather evidence scientifically nor understand the importance of forensic evidence. It is common for material objects to be wrapped in newspapers and bound by jute threads and then produced in court. The safety of the contents depends upon the quality of newsprint. Given the climatic conditions in India, this evidence can be easily damaged within a few months, often well before any preliminary hearing takes place. In cases where there is a need for forensic examination, the situation is even worse. The objects requiring forensic examination will be detained at the central or state forensic lab for anywhere up to 15 years. This reflects the facilities provided for these labs and also the work habits of the forensic technicians. The handling of human remains and dead bodies is equally bad. In cases where there is a requirement of finger print examination or handwriting examination, the minimum period required for the result to be sent back to the referral court from the forensic lab is ten years, only to the benefit of ‘government recognised’ private experts.
These technical hindrances that cause delay in court proceedings furthermore affect the quality of evidence given by witnesses. When a witness is required to testify about an incident she saw a decade earlier, her recollection of events will often be tempered by time. This may affect the quality of her testimony, as well as the entire trial. Evidence can also be affected due to the lack of witness protection provided to those willing to testify. More susceptible to threats and intimidation the longer a case is drawn out, chances are that witnesses may alter their evidence out of fear or even withdraw from the case.
The lack of basic infrastructure within the entire justice system is another crucial issue that causes delays and inefficiency. India has fewer than 15 judges per million people, a figure that compares very poorly with countries such as Canada (about 75 per million) and the United States (104 per million). In 2002, the Supreme Court had directed the government of India to raise the judge-population ratio to 50 per million in a phased manner. Indefensibly, successive governments have not done enough to address this issue; in the Tenth Plan, the judiciary was allocated a mere 0.078 per cent of the total expenditure, a small crumb more than the 0.071 per cent assigned in the Ninth Plan. Inadequate physical infrastructure, the failure or inability to streamline procedures in the Civil and Criminal Procedure Codes, the tardiness in computerising courtrooms, and the inadequate effort that has gone into developing alternative dispute resolution mechanisms such as the Lok Adalats, arbitration and mediation are a few more causes for court delays.
The backlog problem is most acute at the level of the subordi- nate judiciary. As former Chief Justice of India M N Venkatachaliah pointed out, the disillusionment with the judicial system has led to a dangerous increase in Jan Adalats, or kangaroo courts, in many parts of the country. It is time the nation took a serious and comprehensive look at the entire legal system with special attention to tackling the problem of backlog. Too much time has gone by and too little has been done to sort out a problem that undermines the rights of litigants and accused, damages the credibility of the judiciary, and weakens the very basis of the democratic order.
The UN Human Rights Committee in its review on India as early as 1997 has expressed concern about delays in Indian courts (CCPR/C/79/Add.81 para. 22). The Committee on the Elimination of Racial Discrimination expressed similar sentiments after reviewing India’s State Party Report during its seventieth session held in February-March 2007 (CERD/C/IND/ CO/19, 5 May 2007 para. 26), as did the Committee on Economic, Social and Cultural Rights (E/C.12/IND/CO/5 para. 13). During the Universal Periodic Review of India by the Human Rights Council the same issue was brought to the Council’s attention; however, the government failed to respond.
The delay in the Indian justice-delivery system and the impact it has had on the country has been summarised in the Supreme Court’s own observations. In Hussainara Khatoon v. State of Bihar [1980 (1) SCC 98] the court said that
The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial…
Rights to food, health and education, and caste-
based discrimination
From being a nation dependent on food imports to feed its popu- lation, India today is not only self-sufficient in grain production, but also has a substantial reserve. The progress made in agri- culture in the last four decades has been one of the biggest suc- cess stories of free India. Agriculture and allied activities con- stitute the single largest contributor to the Gross Domestic Prod- uct, almost 33 per cent of it. Agriculture is the means of liveli- hood of about two-thirds of the work force in the country. Yet an estimated 22 per cent of the population lives in acute poverty. An equally alarming percentage of the population, particularly children, suffers from acute malnutrition. Almost 80 per cent of this ‘underprivileged’ population belongs to the Dalit community.
The cases documented by the AHRC show a consistent and widespread pattern of administrative neglect that results in acute starvation, death from malnutrition and malnutrition-induced diseases in India. Each case documented by the AHRC has been immediately brought to the attention of the government of India and the respective state or provincial government. In each case, the response has been absolute denial. In spite of specific calls for administrative actions to address the issue of starvation and malnutrition, the government of India has done nothing credible thus far to address the situation.
Most deaths from starvation are reported from Dalit communities in the country. Discrimination within society owing to caste-based prejudices and poverty means that the benefits of government welfare programmes do not reach this community. In order to guarantee food security, which is a fundamental right in India, the government has constituted a public distribution network under the Ministry of Food and Public Distribution. However, this Public Distribution System (PDS) is plagued by rampant corruption, causing it to malfunction. Corruption in the PDS system promotes starvation. Coupled with the discriminatory practices in the government health service sector, the poor often die from malnutrition and malnutrition- induced sicknesses.
Khusbuddin died of malnutrition on 6 February 2008. Khusbuddin was four years old. He was living with his father Mohammad Matin, mother Jaharun Nisha, and elder sister in Mirzapur district of Uttar Pradesh. After his father’s death, Khusbuddin’s family moved to his maternal grand parents’ home in Harpalpur village, Kashi Vidyapith Block, Varanasi district. Khusbuddin was diagnosed as suffering from Grade IV malnutrition, weighing 6.5 kilogram at the St. Mary’s Hospital in Kourata. Khusbuddin’s mother Jaharun was too poor to get Khusbuddin treated at a private hospital. On 5 December 2007, Jaharun took Khusbuddin to the Primary Health Centre (PHC) of Kanai Sarai in Kashi Vidyapith Block, which is about 12 kilometres away from Khusbuddin’s house. Jaharun had to walk to the PHC since she could not manage the bus fare. However, the officer at the PHC did not provide any medical attention for malnourished Khusbuddin saying that there was no medicine at the centre at that time. Neither did Khusbuddin receive any food at the PHC. Jaharun could only give Khusbuddin some water and sugar on that day.
After Khusbuddin’s death, Dr A K Sahaye of the PHC and Manish Srivastava, block officer in charge of a UNICEF programme, visited Khusbuddin’s house and tried to obtain Jaharun’s signature forcibly on a paper certifying that Khusbuddin did not die of malnutrition and was not ill treated at the PHC. Since they failed to obtain Jaharun’s signature, they asked her neighbour to write her name on a blank paper. It was reported that the Auxiliary Nursing Mother (ANM) of Anganwadi Centre (childcare centre) of Harpalpur village who is supposed to be responsible for the health care of the children has never visited Khusbuddin’s house and has denied any support to the family so far. It was also reported that after Khusbuddin’s death, the village head Mr. Salim delivered 1000 Indian Rupees (USD 25) to the victim’s family under the order of the chief secretary of Uttar Pradesh. This is the only support that Khusbuddin’s family has received from the government so far.
The health workers of the Anganwadi centre have important and direct roles to prevent poor children and women from dying from starvation and ailments related to starvation and malnutrition at the village level. All the ICDS services are provided through the Anganwadi workers in an integrated manner to enhance its impact on childcare. Under the ICDS, the Anganwadi workers should visit the village regularly to carry out health check-ups for the children. Once they identify a malnourished child, the child has to be registered at the Anganwadi centre in order to provide nutrition and health care for the child until the child’s condition is safe. However, like the case of Khusbuddin, the negligence of the Anganwadi staff at Harpalpur village is one of the main reasons that starvation deaths occur in India. The case of Khusbuddin illustrates that the negligence of the medical officers at the PHC accelerates not only infant mortality in India but also facilitates corrupt practices to hide data regarding infant mortality.
In addition, it is a common practice in India to conceal deaths from starvation. This fact was noted in the report of the UN Special Rapporteur on the Right to Food, Jean Ziegler, immediately after his visit to India (E/CN.4/2006/44/Add.2 dated 20 March 2006). Whenever a case of starvation is reported, the Indian authorities try to silence the local organisation that reported the case. The condemnable practice of the Indian authorities is to threaten and intimidate the local organisation. Registering false cases against the organisation or the persons involved with such an organisation is a common practice.
Even the Indian judiciary has tried and failed to address the issue of food security. The Supreme Court of India, through a series of interim orders, has tried to address this issue. The court, finding that the government is clueless and non-responsive regarding the issue, mandated its own commissioners to investigate and report on the situation. The commissioners appointed by the court were also tasked with receiving and investigating complaints of starvation, malnutrition and corruption in the PDS system. Even after six years of this exercise, the situation of food security in India has not improved.
The Government of India has also tried several indirect means to ensure a day’s meal for the poor. Schemes like the National Rural Employment Guarantee Act, 2005 (NREGA), the midday meal scheme, and the Targeted Public Food Distribution System are examples. It is true that the NREGA has generated rural employment. However, the payments for the employment have failed to reach the poor due to corruption. The corrupt caucus between the law-enforcement agencies, landlords and their mafia, the local politicians and an inept, negligent and corrupt administrative set-up obstructs food security in India.
India’s accession to the International Covenant on Economic, Social and Cultural Rights took place on 10 July 1979. Most of the rights enshrined in the covenant have been included in domestic law in India. Like the right to food, many of these rights are justiciable, yet people starve to death. The failure of the government to protect, promote and fulfill this fundamental human right is a blight on India’s human rights record. India is one of the world’s fastest developing economies and has a reasonably functioning justice system. India’s courts have made commendable contributions to the development of domestic and international human rights jurisprudence. Indians have attained and continue to occupy enviable positions in international organisations, including the UN. India has offered assistance and developmental aid to other developing nations. Yet, an estimated 22 per cent of Indians in the country face malnutrition or even starvation.
The continuation of caste-based discrimination perpetuates poverty and deprivation of food. Caste-based discrimination also contributes to large-scale denial of the right to education and health. While the 83rd constitutional amendment recognizes education as a fundamental right of all Indian citizens, disparities continue to be pronounced between the various castes. People from the Scheduled Castes, previously referred to as the “untouchables”, make up 16 per cent of the population and consistently fare poorer across various indicators related to primary education. As per the Census 2001, the total population of the Scheduled Castes (SC) in India is 166,635,700, which is 16.3 per cent of the total population. The population of SCs is unevenly distributed among the states in India, with nearly 60 per cent of all SC children of primary school-going age (6-10 years) residing in Andhra Pradesh, Bihar, Madhya Pradesh, Orissa, Rajasthan and Uttar Pradesh. The latter five states are among the most disadvantaged states in India across most social indicators. Dalit students are routinely humiliated and harassed at school. Many drop out because of this.
Caste discrimination is worse than slavery. The avenues for those who are born into lower castes are many in theory; however, in practice, none of these mechanisms work, especially if the person is poor. Caste follows a person from cradle to grave. A prohibition in law or a policy on paper will not prevent caste- based discrimination or starvation. For the real India to derive benefit from its constitutional guarantees, the government must ensure that constitutional promises concerning the right to food, education and health are in fact reaching the rural population. To this caste-based discrimination poses a formidable hindrance. To remove this requires political ill. This sadly is what is found least in India.
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article 2 December 2008 Vol. 7, No. 4