Syed Zafar Mehdi
“Injustice anywhere is a threat to justice everywhere”
… Martin Luther King
Human Rights or rights in general, are in classical liberal political theory “attributes of the human individual”. They are considered to be therefore an inalienable part of the individual’s person. Protecting the rights as the guarantor and executor is the state. It is the State and the law that is supposed to ensure that the right of every person is protected from violation by others or by the State itself.
And it goes without saying that human rights in this country are under grave threat on many fronts: Terrorist groups, Insurgents, Religious fanatic groups, Political extremists, Fundamentalists, mafia and to top it all State and its various agencies.
But is state doing enough to protect human rights of citizens or is it only playing the spoilsport? Let us discuss the spate of violations—all committed by the long arm of the State.
The Executive and Legislature has got ample pretexts to muzzle the individual rights, notwithstanding fundamental rights guaranteed in the Constitution. The provision of Preventive Detention is a prime tool to limit the rights of individuals. According to “State of Human Rights in India, 1996”, about forty preventive detention laws exist in the statue books in India. Most prominent of them are Armed Forces (Special powers) Act 1958 used extensively in “disturbed” areas like Northeastern states and J&K. Others include Preventive detention Act 1950, J&K Public Safety Act 1978, National security Act et al.
NSA allows police to detain persons considered as security risks anywhere in country without charge or trail for as long as one year on loosely defined security charges. PSA (Applies only in J&K), permits state authorities to detain person without charge and judicial review up to at least two years. During this time they don’t have access to family members or legal counsel. Under AFSPA, Govt can declare any state or UT as “disturbed”. It allows security forces, in order to maintain “law and order”, arrest any person against whom “reasonable suspicion exists” without informing detainee of the ground of arrest. Forces are granted immunity from prosecution for acts committed under AFSPA. A Govt-appointed Justice Jeevan Reddy Commission had recommended its revocation, but it continues to be in force even today. As Meenakshi Ganguly, Senior Fellow at Human Rights Watch puts it, “The Indian Govt’s responsibility to protect civilians from attacks by militants is no excuse for an abusive law like AFSPA. Fifty years of suffering under AFSPA is too long, and Govt should scrap it now” (Human Rights Watch report 2008)
Though Govt repealed draconian legislation Prevention of Terrorism Act (POTA) in 2004 and it was replaced with Unlawful Activities (Prevention) Act (UAPA), which is used to hold people without bail in jail for extended periods prior to filing of formal charges.
An indication of the arbitrariness of these Preventive detention laws can be had from the fact that in nine years, of the 76,166 persons arrested, only 843, that is 1.11 percent could be convicted. Let us also bear in mind that in these convictions, “confessions” made to police officers were also considered as evidence— a matter on which subsequently the Constitution bench of Supreme Court was divided 3:2. Despite that, no evidence could be brought against over 38,000 people who were either discharged or acquitted.
Encounters issue also has gathered much storm lately, in the wake of allegations by people against police and its secret agencies for staging fake encounters to reap petty dividends like gallantry awards and out-of-turn promotions. But it is not the recent phenomenon. It was actually during Janta Govt’s rule in April 1977, that a commission headed by Justice V M Tarkunde was set up by Jaya Prakash Narayan, as head of Citizens for Democracy to inquire into over hundred such cases reported in which Naxalite activists were killed during Emergency. In the course of its painstaking investigation, Tarkunde Commission reached the conclusion that the ‘encounters” were state-managed and that all them were “cold-blooded murders”. It was actually revealed that police themselves had taken them to forests, tied them to trees, shot them dead, and then issued statements that they had to open fire in self-defense. The dead bodies were cremated or buried and never returned to their relatives. (P A Sabestian “The Shifting Modalities of Struggle: The setting up of Human Rights tribunal in S Kothari and H Sethi (ed) “Rethinking Human Rights, New Horizon Press, N Delhi 1989).
This was pretty much the pattern of political killings in urban setting of West Bengal in the period after 1969 especially after 1972 and the AP Police perfected the art later. After 1980, practice has been widely used in Tamil Nadu also. “In the thirteen months that followed, 18 young men joined ranks of liquidated “extremists”. Half of them Dalits, the rest belonged to the most backward castes, all of them came from peasant and artisan stock. Thirteen of them were killed in “encounters”, one succumbed to brutal attack of police, another was tortured to death in broad daylight, one was pushed down from a running vehicle and two persons “disappeared” from police custody” (K Manoharan ‘Encounter deaths in Tamil Nadu’ in AR Desai ed ‘Violation of Democratic Rights in India’, Popular Prakashan Mumbai, 1986).
In J&K state, the rate of custodial killings and fake encounters has shot up since 90’s. As per local rights watchdog “J&K Coalition of Civil Society”, 18 cases of custodial killings and extra-judicial killings took place in previous year. Justice Madan Lal Kaul Commission of Inquiry tasked with investigation into alleged custodial killings and falsified encounters in the state received many complaints but nothing seems to have come out of it too.
On Feb 04, 2007, police unearthed 5 unmarked graves in Kashmir, in investigation on custodial killings. One of them was said to be one Abdul Rehman Paddar, a Kashmiri carpenter who was moved down in an encounter on Dec 06, 06. On October 20, 07 police arrested Mohd Tariq, a soldier from the torture and killing of school teacher Abdul Rashid Mir in Jammu. The case is still under investigation.
The Bomai Killings of innocent young men in South Kashmir, and the murder of carpenter in other part of Kashmir, both during this April this year, has again rubbished the promise of zero-tolerance for human rights violations made by newly appointed CM Omar Abdullah before assuming mantle. A Govt-appointed inquiry commission has directly implicated army personnel for the heinous crime. The rape-murder of Asiya and Neelofar Jan is still shrouded in mystery, though the involvement of army personnel cant be ruled out. The cold-blooded killing of 12-year-old Irfan is an indiscriminate shelling on protesting mob few days back has again raised many questions on the conduct of army in the conflict-ridden state. The list goes on.
In Gujarat, Sohrabuddin Sheikh, a suspected Let operative, along with his wife Kausar Bi and key witness Prajpati were allegedly killed in fake encounter by Gujarat police. Strangely enough, CM of the state not only brazenly accepted the charge but also made it into a poll issue, and had the last laugh. Still the case is pending under trail at Ahmedabad court. Very recently, in a stunning disclosure by an independent judicial enquiry, the alleged encounter of Ishrat Jehan and her three friends was categorically termed as “fake”. But does anyone dare hold Modi responsible.
There has also been alarming rise in encounter killings by law-enforcement and security agencies in Northeast, particularly in Assam, Manipur and Nagaland.
Custodial deaths, often made to appear as encounter deaths remain a grave problem and authorities mostly delay prosecutions. The very act of being lodged in jail is one of the series of deprivations of various human rights- of fundamental rights guaranteed in the constitution. Human Rights are to be associated with life not with liberty (LRSA report). This is the profound meaning of the philosophy of human rights.
Supreme Court in the Charles Sobhraj vs Tihar Jail case has affirmed that prisoners have all rights of any free citizen “except to the extent that the situation of incarceration truncates his ability to enjoy them to the fullest”. Apart from various International conventions against torture and regarding the treatment of prisoners, there are rights enshrined in Part III of the Constitution, the Prisoners Act 1894 and the Jail Manual.
Apart from solitary confinement, fettering, keeping prisoners hungry, abusing women inmates and such like, there are extreme cases of perversity. In one shocking incident that came before the Delhi High Court, a jail superintendent had engraved his name with red-hot iron on the body of a prisoner when the latter refused to grease his palms with bribe. So the “institution” of torture is not meant for the political opponents of regime alone but exists at a more quotidian and generalized level.
Many of the deaths which take place as a result of such third-degree torture methods occur after the victims are released because police is conscious of the fact that after the merciless beatings it is hazardous to keep them in lock-up, that there are chances for them to succumb to it in. In some investigations in this connection, conducted in post-Emergency period, it was discovered how torture has actually been institutionalized, especially in places like Punjab and Haryana in the form of Central Investigation Agencies (CIA)- Who true to their name specialised in interrogation and not investigation. (Sudip Mazumdar ‘Deaths in Police Custody’ A R Desai ed ‘Violation of Democratic Rights in India’ Popular Prakashan Bombay 1986”)
So is torture something that exists only in the stories of the Nazi concentration camps or of Stalinist labour camps? Normal democratic societies like India have as much stake in it as anybody else.
According to Convention against torture and other cruel, inhumane and degrading treatment and punishment of the UN General Assembly Resolution 39/46 of Dec 10, 1984, Torture means “any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing or is suspected of having committed, or intimidating or coercing him or a third party for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the investigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Supreme Court’s interpretation of immunity from cruel and unusual punishment: as there is no specific provision in the constitution of India against cruel and unusual punishment, the Supreme Court has given immunity after a combined reading of Article 14, 19, 21. The Supreme Court is for using torture and cruelty to suit a matured, advanced, progressive society with standards of decency in vogue.
It may be intriguing to note that the overwhelming majority of prison inmates are under-trails. The figure sometimes shoots up to as high as 90 percent, but normally it remains around 60 to 70 percent. It has been estimated that although most of them are there for petty offences, they are lodged in jails as under-trails for periods disproportionate to their crimes. In the case of 30 under trails who were held in Bombay jails for over 7 years, legal punishment for their offences was far less. This incident came to light in October 1995 and the High Court ordered their release following the publication of an article in the press. Many of them say LSRA report, are in jail because they could not purchase their freedom with bail—the procedure for which is highly unsatisfactory and suffers from a property-oriented approach.
During calendar year 2005, Home Ministry reported 139 deaths in police custody; however NHRC confirmed 1730 deaths in police and judicial custody during same period. During 2006, National Crimes Record Bureau (NCRB) reported 38 unnatural deaths in police custody. As per Home Ministry’s report (2006-07), NHRC reported 1159 total deaths in police custody between April-December 06. Andhra Pradesh, Kerala, J&K figures prominently in the report.
Overcrowding in these jails is a norm and conditions are far unhygienic and simply abominable. Prison conditions are in fact life threatening and do not meet international standards. Last year, NHRC report indicated that country’s prisons are over-crowded on average by 38.5 percent. As per NHRC report, jails in the country had a population of 324,852 persons with authorized capacity of 234,462 only. As per 2006 NHRC report, large proportion of deaths in judicial custody was from natural causes, in most cases aggravated by pathetic prison conditions. Bollywood star Sanjay Dutt, who spent few years behind bars for his alleged role in Mumbai blasts 92, recently put it in black and white saying, “Jail is supposed to be a place where people should be taught to live with respect but in reality, in our country, it actually compels one to become a beast” (Hindustan Times Leadership Summit 08).
The Mulla Committee, headed by former Justice A.N Mulla appointed in 1980, noted in its report, submitted in 1983 that the majority of people lodged in jails were people belonging to under-privileged sections. So if a celebrity convict has to suffer such treatment in jail, the plight of lesser mortals could only be imagined.
Even as India ratified the International Convention against Torture in June 1997, after dithering for 13 years, the number of custodial deaths countrywide still rose sharply. The Code of criminal procedure (Armed) Act of 05 mandated a judicial inquiry into any death or rape of women in police custody but Human Rights groups assert that law has failed to bring down custodial abuse and killings. As per Amnesty international, torture is “endemic” to justice system and often used against individuals on the basis of their caste, religion, and socio-economic identity. The police often torture innocents until a “confession” isn’t extracted to save influence-peddling high-profile offenders (Asian Human Rights Commission 26 Feb 04). G.P Joshi, Programme Director of Indian chapter of Commonwealth Human Rights Initiative New Delhi says, “that the main issue at hand concerning police violence is a lack of accountability in system” (Police accountability in India: Policing contaminated by Politics CHRI report).
NGO’s assert that custodial torture is common in J&K, Tamil Nadu, and some claim that most police stations in Punjab, Andhra Pradesh, Haryana have torture cells to ‘soften up’ the accused prior to court appearance. In Kerala, as per Asian Human Rights Commission reports, torture and assault are used extensively as means of criminal investigation. In Gujarat, Interrogation centers function in public view.
In a country report on Human Rights practices—released by the Bureau of Democracy, Human Rights and Labour (March 11, 08), Its said that in February last year, Yadav Kumar of Howrah, West Bengal was tortured after finding skeleton in a well nearby his house. In December the previous year, 50-year old Syed Ali, a tea stall owner in Vadapalani Chennai was arrested for alleged unlawful sale of lottery tickets and later killed in custody. In J&K, torture victims have difficulty filing complaints, as local police allegedly are instructed not to open case without permission from higher-ups. Rape of persons in custody is a part of a broader pattern of custodial abuse. NGO’s assert that rape by police including custodial rape is more common than NHRC figures indicate. In J&K and Northeast, rape is used as a tool to instill fear among non-combatants, but NHRC doesn’t document such grave cases, as they don’t have direct authority over the military.
“The common cases of rape and death in police custody are very common acts committed by the police against women.” (Times of India, 25 Apr 1998). For example, Times of India in 98 reported on the rape and death of Salminder Kaur and Sarabjit Kaur in custody. Hindustan Times in October same year reported that a 12-year-old boy Kalu, son of Harbans Singh of Police Station Daira Baba, Nanak Bose was picked up by Police and badly tortured.
The grave trend of Custodial disappearances has been witnessed to great extent in J&K and few other states. Numerous persons continue to disappear in Insurgency and militancy hit areas.
There are credible reports that police throughout the country fail to file legally required arrest reports, resulting in hundreds of unresolved disappearance cases in which relatives claim that individual is taken into custody and never heard from again. NHRC is still investigating around 2097 cases of murder and cremation that occurred between 1984-95.
The NGO ‘Insaaf” estimated that security forces killed and caused to disappear more than 10,000 Punjabi Sikhs and cremated around 6017 Sikhs in Amritsar alone in counter-insurgency operations during the militancy in Punjab.
There are no exact and reliable figures about disappearances in J&K. J&K Govt in 2003 stated that 3931 persons had disappeared in the state since the outbreak of insurgency in early 90’s, compared to Association of Parents of Disappeared Persons (APDP) estimate of approximately 8000-10,000.
Denial of Justice and Fair trail is also a thorny issue to contemplate upon. Gujarat Govt has gone bang in arresting and convicting those responsible for 2002 Communal carnage against Muslims following train burning in Godhra in which 59 Kar Sevaks were died. The massacre of around 1000 Muslims at the hands of right-wing fanatics with full patronage of State machinery was indeed the darkest chapter in modern Indian history. Despite several commission reports, findings, exposes clearly revealing the complicity of State Govt led by its CM in stoking the fire for bloody mayhem, no concrete action has been taken till date. Justice has been delayed and thus denied.
Same is the case with anti-Sikh riots of 1984. The victims are still loitering around in what looks like endless quest for justice. Many bigwig Congress leaders were found responsible for it, but they are still at large. 1992 Mumbai riot victims have similarly pitiable tales to narrate. There are many under-trails who have been denied fair trail. Some have got verdicts disproportionate to their crimes. The curious case of Parliament attack accused Afzal Guru is an example. He was given capital sentence on what human rights activists and legal experts like Ram Jethmalani, Nandita Haksar, Arunadathi Roy, Praful Bidwai and A G Noorani argue was based on “circumstantial evidence”, and that too with scores of “loopholes”, which doesn’t fall in the category of “rarest of rare cases”.
Strange though it may sound, there have been many attacks on human rights from hyperactive judiciary, the very institution entrusted with the task of protecting them. Judicial Activism is a serious threat to human rights.
Take for instance, the apparent conflict between the demands for clean environment and the rights of workers or the poor has emerged as a more generalised one in recent times. It was in Delhi that it sometime back acquired a dimension that catapulted it on to the arena of public debate. The Supreme Court in its order in July 1996 ordered the closure of 168 hazardous and noxious industries. Immediately the result was that close to 50,000 were on the streets without the jobs, to fend for themselves. Many starved; some attempted suicide, and one committed self-immolation. The question is: Why did the court, in the eleven years of the case proceedings not once ask the workers’ side of story, why did it not try to work out any other method in any serious way etc.
As Blaise Pascal said “Justice without power is inefficient, power without justice is tyranny, justice without power is opposed, because there are always wicked men. Power without justice is soon questioned, justice and power must therefore be brought together, so that whatever is just is powerful and whatever is powerful is just”.
The principle of equal rights and self-determination of people has been codified in the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation between States adopted by General Assembly in 1970. It says, “All people have the right freely to determine, without any external interference, their political status and to pursue their economic, social and cultural development and every State has the duty to respect this right in accordance with provisions of the Charter”.
Life in a fast, furious, fugacious lane! 
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