A lawless Subcontinent
The creeping tendency towards rampant lawlessness in South Asia has accelerated in recent times to become an institutionalised practice. Given its vast size and large population the numbers involved may not seem as alarming as the violations they represent. On the one hand there is the question of justice for those already affected. On the other hand, there is the problem of restraining the organs of the state both legally and judicially so that the state itself does not transform into an overbearing, unaccountable leviathan. That process is underway in all the countries of the Subcontinent. This is all the more dangerous since the regions is afflicted by conflicts of a violent kind, which, if not resolved promptly and in appropriate ways, will degenerate into a self-perpetuating cycle of brutality that could become institutionalised.
Some of the longest running conflicts in post-war global history have been going on in South Asia. The duration of these conflicts has undeniably increased because of the attempt to resolve them through military solutions. This has not only increased the death toll across the board, it has also seen the emergence of legal mechanisms that confer extraordinary powers on the security organs of the state. This in turn has led to mounting repression of ordinary citizens unconnected with any act or movement that may be construed as a threat to the state. Sometimes this repression extends also to areas that are not even in the so-called conflict zones. As a consequence, the legitimacy of the state and its laws is further undermined leading to greater doses of opposition and repression. Unless this problem is urgently addressed, a Subcontinent already afflicted by numerous other maladies that require democratic political solutions can expect to find itself crippled by the lack of institutional mechanisms to deal with them.
While, constitutionally the state has been mandated to secure the rights of the citizen, its different organs have come to place their own security above the protection of the individual citizen. In South Asia, human rights has been sacrificed for defending the overriding interests of the state. Even as human rights acquires the status of an universal concern, specific national laws and practices have compromised not only the spirit of the constitutions from which they derive, but also made individuals extremely vulnerable to legal and extra-legal forms of coercion. A critical thematic examination of human rights issues in India, by far the largest country of South Asia with a billion-plus population, brings certain trends to the fore.
India, which has the distinction of being referred to as the largest democracy in the world also has the largest law, order and security apparatus in the region. Given the sheer size and weight of its state, India also has perhaps the largest number of legal provisions in place that need scrutiny from a human rights perspective. Indian law and police practices require urgent examination.
Prevention of Terrorism Act, 2002
There is no doubt that states have legitimate reasons, right and duty to take all due measures to eliminate terrorism to protect their nationals, human rights, democracy and the rule of law and to bring the perpetrators of such acts to justice. However, the counter-terrorism measures adopted in the post- September 11 period have often been taken without any respect for the due process of law. India's Prevention of Terrorism Act (POTA), rolled into law by calling a joint session of the Indian parliament on 26 March 2002 is a classic example. The highest numbers of detainees under the POTA are not from Jammu and Kashmir, the central focus of India's war against 'terror'. Instead, the majority of the detainees are from Jharkhand, the heartland of India's indigenous peoples, the adivasis. The detainees include children as young as 12 and people as old as 81.
The lack of procedural safeguards under POTA is well-known. The act does not contain a precise definition of terrorism, and provides for harsh punishments, including the death penalty, regardless of the absence of the required higher standards of scrutiny. Furthermore, the provisions of POTA are already covered under the existing legislation, including a host of national security laws. According to India's National Human Rights Commission (NHRC), "existing laws are sufficient to deal with any eventuality, including terrorism, and there is no need for a draconian POTA". The latter empowers the state to hold the accused for a prolonged period of detention (180 days) without filing a chargesheet. The burden of proof lies on the accused and the prosecution can withhold the identity of witnesses. It also treats confessions made to police officers above a certain level admissible as evidence. The public prosecutor is empowered to deny bail and the judges have little discretion regarding the severity of sentencing.
After the government forced through POTA in March 2002, Union Home Minister LK Advani announced the formation of a Review Committee under Section 60 of the act, responding to criticisms about its potential for abuse. In the words of Advani, the committee would "take a comprehensive view of the use of the legislation in various states and give its findings and suggestions for removing shortcomings in the implementation of POTA". However, the various state governments have refused to provide necessary information to the Review Committee. Despite this lack of co-operation, the POTA Review Committee managed to refer 80 complaints to five states. The results were disappointing. All that happened was that the Review Committee received dismal responses from the concerned state governments. The ineffectiveness of the POTA Review Committee is reflected from the following facts:
- POTA is in force in 10 states: Andhra, Delhi, Gujarat, Jammu and Kashmir, Jharkhand, Maharashtra, Sikkim, Tamil Nadu, UP, Himachal
- Number of POTA detainee as of 21 October 2003: 185 in Jharkhand, 89 in Jammu and Kashmir, 69 in Gujarat, 38 in Delhi and 36 in Andhra Pradesh.
- 80 complaints of misuse have been referred to five states.
- Number of complaints received state-wise: 36 in Maharashtra, 35 in Tamil Nadu, 16 in Jammu and Kashmir, six in Delhi, three in Uttar Pradesh and two in Jharkhand.
Because of the increasing misuse of the POTA for settling political scores at the state level, as happened with its earlier avatar, the now lapsed Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987), on 21 October 2003 the union cabinet approved the ordinance to amend POTA to confer more powers to the central and state review committees and to make their decisions binding on the central and state governments and the police officers investigating the cases. On 18 December 2003, parliament passed the Prevention of Terrorism (Amendment) Bill. Earlier, on 16 December 2003, the supreme court upheld the constitutional validity of the POTA.
Surprisingly, while considering the ordinance to amend POTA, the three-member Review Committee headed by AB Saharya, was not even consulted. Union Law Minister, Arun Jaitley and Home Secretary N Gopalaswamy met Justice Saharya two days after the cabinet cleared the ordinance, and the proposed law was not even discussed at the meeting. Commenting on the ordinance to amend POTA, Justice Saharya stated, "I am involved in collection, scrutiny and evaluation of facts about POTA detenus right now. The ordinance does not come into play here". Non-cooperation from various states is one of the main problems. As Saharya puts it, "For me the most important job at hand is getting hold of material. Without them, how would I reach an objective conclusion? The power that the ordinance gives to the review committee would come into play at the stage of the final report, not now". Since the ordinance does not spell out the time being given to the states to respond to the review committee, there is no wonder as to why the limbo prolongs.
On 13 November 2003, the Central Review Committee sought a response from the government of Tamil Nadu about the arrest of the leader of the political party Marumalarchi Dravida Munnetra Kazhagam (MDMK), Vaiko and the editor of Nakkeeran, RR Gopal under POTA. MDMK is a member of the ruling alliance in New Delhi. Even the focus of the Review Committee were they are allowed to function has been questioned, however. As the Review Committee of the POTA serves its political masters in New Delhi against the repression of political allies, the amendment of the POTA appears to have meaning only for political leaders. Innocent victims, such as 14 year old Mayanti Raj Kumari, a student of Class VII do not register on the radar screen of the Review Committee. She was arrested on 9 July 2002 for allegedly waging war against the state (under Sections 121A and 122 of the Indian Penal Code) and POTA while returning from her school. She is presently detained in Ranchi jail and not in a juvenile home as required under the law regarding the arrest of minors. The Asian Centre for Human Rights (ACHR) has details of the cases of seven children arrested under POTA.
The fate of torture
Although India signed the United Nations Convention Against Torture in 1997, it is yet to ratify the pact. The Indian National Human Rights Commission's annual reports illustrate the use of torture in the administration of criminal justice in India. According to the NHRC, it received complaints of 34 custodial deaths (in both police and judicial custody) in 1993-94. By 2000-2001, the number was up to 1037. These custodial deaths are in addition to disappearances, illegal detention, false implication, other police excesses and violations by armed forces. It does not help matters that the armed forces are outside the purview of the NHRC under section 19 of the Human Rights Protection Act, 1993. The practise of 'extracting confessions' to fulfil the concerned authorities' personal/professional agenda is not uncommon. There is no impartial mechanism for receiving complaints against torture as the complaints inevitably have to be made to the police authorities themselves. This only allows the police to bring pressure and harassment onto the victims, who are the de facto complainants.
The Convention against Torture requires impartial investigation. Unfortunately, in India the police force is not independent. Torture in India is not treated as per the requirements of the convention. Only two sections in the Penal Code (sections 330 V1) deal with punishment for use of force in obtaining confessions. However, if torture is to be dealt with effectively, it is essential that it be made an offence in terms of the convention, including provisions for adequate punishment against torture. The law against torture in India is extremely inadequate in terms of international understanding and jurisprudence. Indian citizens do not have the opportunity to find recourse in remedies that are available under international law due to the failure on the part of the Indian government to ratify the Convention against Torture. Indian practices with respect to torture do not come under international scrutiny. Since the country has also not signed the Optional Protocol to the International Covenant on Civil and Political Rights, its citizens also do not have the right to make individual complaints to the UN Human Rights Committee. Torture remains unaccounted for and not prosecuted and the victims are trapped with the local system of unresponsive law. Nothing is more imperative than the need to mobilise an effective campaign in India for ratification of the convention.
Internationalising human rights
India has consistently refused invitation to the Special Rapporteurs of the United Nations Commission on Human Rights. Recently, the Special Rapporteur on the Right to Food sought an invitation to visit India. The Permanent Mission of India reportedly advised the Special Rapporteur to focus on the sub-Saharan region, as there is no violation of the right to food in India.
In the first week of November 2003, the National Human Rights Commission of India, acting on a matter raised by a group of citizens, issued notice to the Uttar Pradesh government about the starvation deaths of at least 18 tribal children of the Ghasia community over the past 11 months at Naibasti village in Sonebhadra district of Uttar Pradesh. The Ghasias were hounded out of their ancestral villages with the nationalisation of forests, which forced them to migrate from their villages to Naibasti, some eight kilometres from the main township. The Ghasias had been deprived of their land holdings and were forced to survive on poor quality rice, wild mushrooms and grass. "The adults somehow survive the ill-effects of the poisonous food but most of the children succumb within two years", a petition by the People's Vigilance Committee said. The petition further pointed out that the community had not been provided with ration cards or mid-day meals nor had they been given alternative land holdings. Moreover, according to the petition, the children of Ghasias were not even covered under the recent immunisation drives launched by the Uttar Pradesh government.
The death penalty
A large number of laws in India prescribe the death penalty. These include the Indian Penal Code (which lists as many as 11 offences punishable by death), the Army Act of 1950, the Air Force Act of 1950 and the Navy Act of 1956, POTA 2002, Commission of Sati (Prevention) Act of 1987, the Narcotics, Drugs & Psychotropic Substances (Amendment) Act of 1988, and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act of 1989.
The constitutional validity of the death penalty has been upheld by the Supreme Court of India in the jagmohan Singh vs State of UP (October 1972) The court on that ocassion stated that the death penalty should be a narrow exception, not the rule, in sentencing. The court also explained that the law could not prescribe the death penalty for all persons committing certain crimes, but instead the circumstances of each offence would be considered. Indian courts have sought to apply the "rarest of rare" doctrine, but in practise, the awarding of the death penalty indicates otherwise.
On 29 October 2003, a judgement of the Delhi High Court upheld the death penalty for Mohammad Afzal and Shaukat Hussain Guru for causing the death of nine persons during the attack on the Indian Parliament on 13 December 2001. The court imposed the death sentence on them under Section 121 of the Indian Penal Code (IPC) for "waging war against the country". The POTA court earlier had sentenced all four accused to death. The high court acquitted the remaining two accused. In a similar verdict on 7 November 2003, Additional Sessions Judge GP Thareja sentenced to death Sushil Kumar Sharma in the Naina Sahni murder case. The court ordered that Sharma be "hanged by the neck till dead". Sharma was also sentenced for the offence under Section 120 (B) (Conspiracy) read with Section 201 (Destruction of evidence) of IPC to seven years rigorous imprisonment with a fine of Rs 10,000.
On 15 November 2003, the Bangalore Rural District and Sessions Court awarded death sentence to four people—Krishna, Shivalinga, Manjunath and Ramesh (all between 20 and 25 years of age)—in connection with the murder of a lorry cleaner, which took place in December 1998. Unfortunately, many judgements delivered by the sessions courts awarding death penalty are not challenged before the high courts due to the high litigation costs which many detainees cannot afford.
Displacement of Indigenous Peoples
Displacement is one of the most serious problems faced by indigenous peoples, the so-called scheduled tribes of India. According the government's ministry of tribal affairs, "Since independence, tribals displaced by development projects or industries have not been rehabilitated to date. Research shows that the number of displaced tribals till 1990 is about 85.39 lakhs (55 percent of the total displaced population) of whom 64 percent are yet to be rehabilitated". According to the 1991 census, the population of scheduled tribes in India is 67.8 million, a little over 6 percent of the total population of the country. The fact that this percentage of the total population of India constitutes 55 percent of total displaced people indicates of the massive victimisation of indigenous peoples.
An estimated 10 million indigenous peoples and forest-dependent communities are on the verge of eviction pursuant to the order of Union Ministry of Environment and Forests in May 2002. This eviction order has brought the issue of "Nature without People" to the forefront. The order was issued in furtherance of an order of the Supreme Court of India on 23 November 2001. The supreme court in its order has restrained the central government from regularisation of alleged encroachments of forest lands in the country under the Forest Conservation Act, 1980 and ordered to frame a time bound programme for eviction of the alleged encroachers from the forest lands. This has happened despite the fact that the government has not resolved the ambiguities and claims on forests since independence.
Atrocities against the Dalits
About 300 million people are victims of caste discrimination. The minister of state for home affairs, ID Swami, informed parliament on 23 April 2002 that over 28,000 incidents of crimes, including murder and rape, were committed against scheduled castes and scheduled tribes across India during 2001. Swami further informed that close to 25,000 cases were reported regarding crimes against scheduled castes and as many as 3691 crimes were committed against scheduled tribes. The maximum number of cases—close to 5000—against scheduled castes was reported from the state of Rajasthan, while Madhya Pradesh topped the list in atrocities against scheduled tribes with 1643 cases. The statistics pertaining to the calendar year 2001 show that the states of Uttar Pradesh (7356 cases), Madhya Pradesh (4336 cases), Rajasthan (1996 cases), Gujarat (1760 cases), Andhra Pradesh (1288 cases) and Orissa (1125 cases), collectively accounted for over 82 percent of total number of 21,678 cases charge sheeted in the courts in the country.
These statistics constitute only the tip of the iceberg since most caste offences in rural areas are not registered. Nonetheless, the statistics provided by the government of India clearly establish that caste violence has been increasing. The ascending patterns are disturbing. In 1999, 34,799 cases were registered. This increased to 36,971 registered cases in 2000 and then to 39,157 in 2001.
The majority of states of India have failed to set up special courts under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. As of 2 February 2003, exclusive special courts have been set up only in Andhra Pradesh (12), Bihar (11), Chattisgarh (7), Gujarat (10), Karnataka (6), Madhya Pradesh (29), Rajasthan (17), Tamil Nadu (4), Uttar Pradesh (40) and Uttaranchal (1). The remaining states and union territories have notified the existing courts of sessions as special courts for the trial of offences under the 1989 act. As the courts in India are already over-burdened with 35,40,000 cases at the level of the high courts in 2002, according to the report of the Parliamentary Standing Committee on Home Affairs, designation of the court of sessions as special courts helps little in terms of expediency and further adds to judicial delay in India.
Nepalis and their army
Nepal, which has the reputation of having a relatively softer state than India's, has been in the throes of a civil war that is now eight years old and has seen some disturbing trends in the last few years. Alarmingly, despite the increased focus on human rights in recent times there is no let up in the number of killings. If anything the situation seems to be deteriorating.
A total of over 8,184 people have been killed since 13 February 1996 in the ongoing conflict between the Maoists and government of Nepal. About 1000 persons have been killed since the collapse of the ceasefire agreement on 27 August 2003. On 2 November 2003, Sushil Pyakurel, member of the NHRC of Nepal stated that, "Till date over 600 people have been arrested by the masked security personnel and they also put masks over the faces of those arrested". They are detained incommunicado and relatives are not even informed of their detention.
On 13 November 2003, the United Nations Commission on Human Rights' Special Rapporteur on Torture, Theo van Boven, the Special Rapporteur on the Right to Freedom of Opinion and Expression, Ambeyi Ligabo, and the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Leila Zerrougui, expressed their concern over reports that dozens of individuals are being detained secretly in Nepal and are therefore at risk of suffering torture and other forms of ill-treatment. In the last two months, they have sent 31 urgent appeals, most of them jointly, to the government of Nepal regarding the alleged detention of 56 people in unknown locations. The National Human Rights Commission of Nepal has also received complaints of over 100 cases of abductions and subsequent disappearances. The security forces and the army ignore the notices issued by the NHRC.
The contempt of the judiciary by the Nepal's army is unprecedented. At least four army barracks— Bhairav Nath Gan, Chhauni Gan, Bhadrakali Gan and Jagadal Gan—had the audacity to decline the notices of the supreme court with impunity. On 13 November 2003, when a court official went to the Bhairav Nath Gan barrack to serve the show cause notice as to why one Surendra Khadgi was detained, officials at the barrack did not accept it. On an earlier occasion as well, the Bhairav Nath Gan had declined to receive the notice issued by the supreme court regarding a plea for release of another individual.
Mob rule in Bangladesh
ON 23 February 2003, the Bangladesh parliament passed the Joint Drive Indemnity Act, 2003 to provide immunity to the security forces from prosecution for their involvement in "any casualty, damage to life and property, violation of rights, physical or mental damage" between 16 October 2002 and 9 January 2003 during Operation Clean Heart. More than 11,000 persons were arrested in Operation Clean Heart, of which only about 2,400 were listed as alleged criminals. Approximately 44 people reportedly died during the operation, either in custody or immediately afterwards. A survey report of Odhikar, a rights group, based in Dhaka states the 56 people were killed by law enforcement personnel and 61 others died in police and jail custody in the first nine months of 2003.
The 1 October 2001 general elections in Bangladesh were marked by organised and systematic backlash against the Hindu minorities. None has been prosecuted for these atrocities. After the Bangladesh parliament passed an amendment to the Vested Property Return Act, 2001 on 26 November 2002, the return of the confiscated properties has virtually been shelved. On 18 November 2003, 11 members of a Hindu family were burnt to death at Banshkhali, Chittagong. The police blamed the incidents on dacoits. Hindus are often terrorised with patronage of the dominant political parties to grab the lands of the Hindus. The Vested Properties Act brought into legislation after 1965 Indo-Pak war has been the main cause of displacement of millions of Hindus.
The Chittagong Hill Tracts Peace Accord of 1997 is in tatters. According to official statistics, 3,055 returnee indigenous Jumma refugee families out of 12,222 families are yet to get back their dwelling houses, jhum lands, mouza lands, and crematorium. Approximately 40 indigenous Jumma villages, six Buddhist temples of Chakmas and two Hari temples of Tripuras and one Buddhist orphanage are still in the possession of illegal plain settlers and army or Ansar forces in violation of the Article 17(b) of the CHT Accord. In late July 2003, the Prime Minister's Office (PMO) of the government of Bangladesh directed the CHT affairs ministry to suspend rice rations to 65,000 indigenous Jumma refugees in violation of the agreements reached with the refugees. The order of the PMO however directed to give free rice rations to 26,000 illegal plain settlers' families, who are one of the causes of the conflict.
Indigenous Jummas of the CHT continue to face serious human rights violations. On 26 August 2003, Bangladesh army personnel and illegal plain settlers burnt down 10 indigenous Jumma villages under Mahalchari sub-district of Khagrachari district. Nine month old baby, Kiriton Chakma was strangulated to death in front of his grandmother, who was then raped by Bangladesh army personnel. The settlers and the army also raped 10 Jumma women including four girls.
In April 1996, the government of Bangladesh initiated the process of establishing the NHRC. Seven years later, the process of establishing NHRI has become another gravy train.
Aung San's Burma
BURMA HAS been under protracted dictatorship despite the existence of a strong democracy movement and despite strong international pressure. Burmese pro-democracy leader, Aung San Suu Kyi has been in detention since 30 May 2003. Although, the Association of South East Asian Nations (ASEAN) sought Suu Kyi's release in the June 2003 summit, India maintained silence. From 2 to 6 November 2003, India's vice president, Bhairon Singh Shekhawat visited Burma to solidify Indo-Burmese relations. India, which raises the lack of democracy on the western front vis-à-vis Pakistan, has maintained silence on the denial of democracy on its eastern front, Burma.
The State Peace and Development Council (SPDC) has so far scuttled international initiatives for national reconciliation and restoration of democracy in Burma. It has managed to choreograph the pace of the so-called dialogues. In July 2003, the prime minister of Thailand, Thaksin Shinawatra proposed a road map for national reconciliation in Burma. In an attempt to scuttle the Thai roadmap, on 30 August 2003 the SPDC announced a seven-stage "road map to democracy". Prime Minister General Khin Nyunt stated that the first step would be the resumption of a national convention to establish a new constitution. It would comprise the same participants as when it was suspended in 1996 following the walk out of the National League for Democracy.
Although the ASEAN made a surprising departure from its policy of non-interference in the internal affairs of member-states to demand the release of Aung San Suu Kyi at the June 2003 summit at Phnom Penh, ASEAN leaders then tamely accepted Burma's claim that it is committed to democracy at the Bali summit in October 2003. In a joint statement, they welcomed the military generals' "seven-point road map" to democracy, even though it contains no time frame for implementation. They have also accepted the junta's explanation that by moving Suu Kyi from a secret prison to imprisonment in her home, it has made a major political concession to the jailed leader.
Paulo Sergio Pinheiro, Special Rapporteur of the United Nations Commission on Human Rights visited Burma from 2 to 8 November 2003 and met senior officials including the prime minister. The special rapporteur expressed his deep concern for those political prisoners who have been detained since 30 May 2003 as well as for all remaining political prisoners. In addition, the special rapporteur reiterated that any credible process towards political transition requires the lifting of all remaining restrictions on the freedoms of expression, movement, information, assembly and association and the repealing of the related "security" legislation.
The UN Secretary General's Special Envoy, Razali Ismail has so far failed to make any significant breakthrough despite the initiatives of the ASEAN. The military generals of Burma rely heavily on the support of China and India. Unless, China and India actively support the initiative of the United Nations, ASEAN and Thailand, Burmese military generals are unlikely to take any concrete initiative for national reconciliation and restoration of democracy in Burma.
Pakistan: Medieval justice
ON 12 December 2003, the anti-terror court in Bahawalpur, Punjab ruled that Mohammad Sajid who carried out an acid attack on Rabia Bibi in June 2003 ruled, "Acid drops will be thrown into his eyes in line with the Islamic laws". Although such strict rulings based on Islamic justice handed out by lower courts in Pakistan are often overturned by higher courts, the distinction between ordinary crimes and terrorist acts are blurred in Pakistan. As General Parvez Musharaf muzzles press freedom and freedom of association and assembly by arresting leaders such as Javed Hashmi, President of the Alliance for the Restoration of Democracy, the nexus of evil and medieval justice in the war against terror has become clear.
Several hundred Pakistanis have so far been handed over to US custody in violation of Pakistan's extradition law and international prohibition of extraditing anyone to a country where their rights may be abused. On 13 July 2003, Adil al-Jazeeri, an Algerian national and allegedly a leading member of Al-Qaeeda, was handed over to US agents by Pakistani authorities. He was reportedly arrested on 17 June 2003 by members of Pakistan's security services in the residential district of Hayatabad, Peshawar,
On 5 November 2003, the Islamabad senior civil judge issued notice to the United States and other respondents in a suit for damages of USD 10.4 million filed by Muhammad Sagheer, a Pakistani prisoner released from Guantanamo Bay in Cuba after more than a year. So long the US supports President Musharaf, he does not give a hoot for international law.