Report of the Independent People's Tribunal · Shabnam Hashmi K. S. Subramanian Dr. S. D. Singh...

Report of the Independent People's Tribunal9-10 February 2008

Researched and edited by Coordinated byGrace Pelly Jai Singh

Torture, Extra-Judicial Killings and Forced Disappearances in India

State Terrorism

iptwww.ipt.org

Indian People's Tribunal

Human Rights Law Network Vision• To protect fundamental human rights, increase access to basic resources for the

marginalised communities, and eliminate discrimination.

• �To�create�a� justice�delivery�system�that� is�accessible,�accountable,� transparent,�efficient�and�affordable, and works for the underprivileged. Raise the level of pro bono legal expertise for the poor to make the work uniformly competent as well as compassionate.

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State Terrorism

Researched and edited by:Grace Pelly

Coordinated by:Jai Singh

© Socio Legal Information Centre*

ISBN 81-89479-47-4

January 2009

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The views and opinions expressed in this publication are not necessarily views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility.

* Any section of this volume may be reproduced without prior permission of the Human Rights Law Network for public interest purposes with appropriate acknowledgement.

Independent People's Tribunal on Torture, Extra-Judicial Killings and Forced Disappearance organised by Human Rights Law Network in collaboration with:

Ambedkar Vichar Manch

Adivasi Mukti Sanghatan

Andhra Pradesh Civil Liberties Committee

Association of Parents of Disappeared Persons

Bhumi Uchhed Pratirodh Samiti

Civil Liberties Monitoring Committee

Dalit Adhikar Morcha

Design & People

Human Rights Advocacy and Research Foundation

Human Rights Alert

Jan Adhikar Manch

JNU Students' Union

Karcham Wangto Sangarsh Samiti

Kudremukha Rashtriya Udyan Virodhi Horata Okkutta

Lawyers for Human Rights International

MASUM

National Project on Preventing Torture in India

National Campaign on Dalit Human Rights

Paschim Banga Khet Mazoor Samiti

People’s Vigilance Committee on Human Rights

People’s Watch

PUCL Chhattisgarh

PUCL Uttarakhand

Sanchetana

SICHREM

Spandan Samaj Sevi Sangathan

Torture Prevention Center

Uttarakhand Parivartan Abhiyan

Panel members

Justice Malay Sengupta (retired)

Professor B. B. Pandey

Professor S. M. Qadri

Advocate Dhairyasheel Patil

Advocate Navkiran Singh

Advocate P. A. Sebastian

Advocate Vrinda Grover

Shabnam Hashmi

K. S. Subramanian

Dr. S. D. Singh

Judge C. Upendra (retired)

Introduction

v

ContentsAcknowledgements vii

Foreword ix

Acronyms xi

Glossary of terms xiii

Introduction 1

Chapter 1: A history of repression 13Protections against torture, extra-judicial killings and forced disappearances 13The Indian Police Force: A colonial legacy 26Draconian legislation: A colonial legacy 33

Chapter 2: The police and forest department officials 47Testimonies at the Independent People’s Tribunal 47

Chapter 3: Torture in India 71Torture as a tool of interrogation 72Torture as a means of suppressing civil dissent 76Methods of torture 77Sexual violence 86Custodial death 94Impunity 100Failure of medical authorities to provide treatment to torture victims 103

Chapter 4: Struggles for self-determination 111Punjab in the 1980s and 1990s 112Living under AFSPA in the Northeast: A case study of Manipur 121Kashmir: State terror in the valley 131

Chapter 5: Violence related to economic development 147The growth of industrialisation 148Violence related to economic development: Chhattisgarh 152Violence related to economic development: Jharkhand 165Violence related to economic development: Andhra Pradesh 167Violence related to economic development: West Bengal 168Naxalism 173

Chapter 6: Communalism 185The Sikh Massacres (1984) 185The Mumbai riots (1992-93) 187Gujarat genocide (2002) 189Dargah riots, Gujarat (2006) 194Orissa – Attacks on the Christians (2008) 198

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Chapter 7: Encounter Killings: “Terrorists”, “Gangsters” and “Naxalites” 199Encounters: A Popular Practice 199Encountering “Naxalites” 202“Gangsters” in Mumbai 204“Terrorists” in Gujarat 206

Chapter 8: Defend the human rights defenders 211Dr. Binayek Sen 211Advocate Amarnath Pandey 212Prashant Rahi 213Pratap Singh 215Banglar Manabadhikar Suraksha Mancha (MASUM) 219People's Union for Civil Liberties (PUCL) 219Opponents to economic development policy 219

Chapter 9: A dark future? 221Assault on the Rule of Law 221Fighting impunity 225

Chapter 10: Conclusions for reform 233Police reform 233Legislative reform 237Empower the NHRC and SHRCs 239

Recommendations 243

Annexure: Testimonies of the Independent People's Tribunal 251

Acknowledgements

Our special thanks goes to Mr. Henri Tiphagne, Executive Director, People's Watch, and Mr. Kirity Roy, MASUM, for their significant effort in mobilising victims and their families from all across the country.

We would also like to thank the following people for their assistance and support with the Tribunal and the publication:

l Ms. Suneela Singh, National Coordinator, National Project on Preventing Torture in India

l Professor Kamal Mitra Chenoy, School of International Studies, Jawaharlal Nehru University

l Rohan D’Souza, Assistant Professor, Jawaharlal Nehru University

l Dean, Department of Life Sciences

l Dean, Department of Social Sciences

l Dean, Department of Art and Aesthetics

l Sandeep Singh, President of the JNU Students' Union

l All the students of Jawaharlal Nehru University who volunteered to help organise the Tribunal

l All the volunteers and interns at HRLN who helped in the monumental task of translating and transcribing the testimonies of the victims and the families who deposed at the Tribunal

l Ms. Jessica Barry for all her assistance at the Tribunal and thereafter coordinating the compilation of all the testimonies

In support of the gallant work being done in preventing torture and executions in India, we specifically acknowledge and congratulate the following organisations who have been at the forefront in the campaign against torture and impunity in India. We would also like to take this opportunity to extend our regards to and thank the following organisations, who made an invaluable contribution in making this People’s Tribunal possible and a success.

Ambedkar Vichar Manch, Adivasi Mukti Sanghatan, Andhra Pradesh Civil Liberties Committee, Association of Parents of Disappeared Persons, Bhumi Uchhed Pratirodh Samiti, Civil Liberties Monitoring Committee, Dalit Adhikar Morcha, Design & People, Human Rights Advocacy and Research Foundation, Human Rights Alert, Jan Adhikar Manch, JNU Students' Union, Karcham Wangto Sangarsh Samiti, Kudremukha Rashtriya Udyan Virodhi

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Horata Okkutta, Lawyers for Human Rights International, MASUM, National Project on Preventing Torture in India, National Campaign on Dalit Human Rights, Paschim Banga Khet Mazoor Samiti, People’s Vigilance Committee on Human Rights, People’s Watch, PUCL Chhattisgarh, PUCL Uttarakhand, Sanchetana, SICHREM, Spandan Samaj Sevi Sangathan, Torture Prevention Center and Uttarakhand Parivartan.

We also thank all the members of the Human Rights Law Network for their hard work, persistence and dedication.

Above all, we extend our immense gratitude to all of those victims and witnesses who traveled from all over India to depose before the Tribunal and the courage and strength they continue to show.

– Jai Singh, Jaswant Kaur and Anant K. Asthana

Foreword

Sixty-one years since the birth of independent India torture, disappearances and killings sanctioned by the state remain prevalent. “India is a vibrant electoral democracy with an abysmal human rights record” was the 2008 assessment of Human Rights Watch in relation to the State’s failure to provide adequate redress for victims, and the continuing culture of impunity for security forces responsible for grave human rights violations. The use of such extra-judicial measures still pervades every facet of the criminal justice system in every Indian state, remaining an enduring legacy and everyday reality for millions of citizens.

Brutal methods are deployed by the police and the security forces on the pretext of maintaining the “unity and the integrity” of the country. The experiences in Punjab, Kashmir, the Northeast, and the so-called Naxal-affected areas, sanction arbitrary powers and draconian laws as a tool of suppression in the pursuit of law and order and the perceived threat to national security. Gujarat, Maharashtra and most recently in Orissa shows the State, both at a regional and national level successfully deploying these practices in pursuing communal agendas against minorities. The same justifications are now being applied in relation to the challenges posed by globalisation, as recently witnessed in Nandigram (West Bengal), Chhattisgarh, Jharkhand and Orissa as important tools in the state’s armoury to disenfranchise and deprive the rural and tribal populations of their resource rich lands.

The courts, the criminal justice system, and commissions have consistently failed to deliver justice and strengthen the human rights and constitutional safeguards of victims. Conversely, the legislative provisions have strengthened the protections from prosecution afforded to the security forces through the enactment of provisions such as the Armed Forces (Special Powers) Act 1958, the Terrorist and Disruptive Activities Act 1984 and the Prevention of Terrorism Act 2002. The failures of the system, perhaps in some part explain the inevitable reactions and frustrations of the people. The majority of India’s 28 states are experiencing some form of armed conflict or insurrection.

The formation of an “Independent People’s Tribunal” (IPT) on 9 and 10 February 2008, was a unique initiative examining the causes, justification and rationale of illegal and coercive measures developed by the state, in a variety of different contexts. It is perhaps the first time that so many victims from all corners of the country were given an opportunity to share one platform. Religious minorities, ethnic groups, Dalits, Adivasis, juveniles and women. Their backgrounds were diverse and divergent however the narration of the horrific brutality they have suffered, strikingly similar. The IPT represents the voices of the unheard, the voices that have been stifled, the voices the state refuses to hear. In the words of one human rights group “….denial is killing them twice”.

The Tribunal was presided over by a panel of eminent academics, judges, legal practitioners, activists and human rights defenders: Justice Malay Sengupta (retired), Professor B. B. Pandey, Professor S. M. Qadri, Advocate Dhairyasheel Patil, K. S. Subramanian, Shabnam Hashmi,

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Advocate Vrinda Grover, Advocate P. A. Sebastian, Advocate Navkiran Singh, Dr. S. D. Singh and Judge C. Upendra (retired), academics, experts and activists gathered at Jawaharlal Nehru University in New Delhi to hear the testimonies of 106 victims and witnesses of torture, extra-judicial killings and forced disappearances and to listen to the views and opinions of a number of experts on the subject.

The Independent People’s Tribunal was organised by the Human Rights Law Network (HRLN) in close collaboration with a number of state and national-level organisations: Ambedkar Vichar Manch, Dalit Adhikar Morcha, Design & People, Human Rights Advocacy and Research Foundation, Human Rights Alert, Jan Adhikar Manch, JNU Students' Union, Kudremukha Rashtriya Udyan Virodhi Okkutta, Lawyers for Human Rights International, MASUM, Paschim Banga Khet Mazoor Samiti, People’s Democratic Forum, People’s Vigilance Committee on Human Rights, People’s Watch, PUCL Chhattisgarh, PUCL Uttarakhand, Sanchetana, SICHREM, Spandan Samaj Sevi Sangathan, Torture Prevention Center and Uttarakhand Parivartan Abhiyan.

The panel listened to the testimonies given by the victims, witnesses and experts over two days and expressed their deep concern on the complete failure of the administration to protect the most basic rights of its citizens and the total collapse of the legal system in securing, protecting and enforcing the rights of the citizens of the country. A number of recommendations addressed to the Indian Government are given at the end of this publication. These recommendations address steps that must be taken to combat torture, extra-judicial killings and forced disappearances in India.

We need to ask ourselves the question, why the need for a People’s Tribunal? It is a damning indictment of the lack of justice, accountability and denial found in the place where ultimately the responsibility should fall; the courts and the judicial apparatus. It is sincerely hoped that the awareness raised from these issues, will be a further step towards eradicating the barbaric practice of torture and the justification for state sponsored assassinations and disappearances. It is essential that India honours its commitments to international human rights norms, its constitution and above all directly to its own citizens.

To end on a slightly more positive note, the Supreme Court has most recently in Mohmadhusen Abdulrahin and Kalota Shaikh vs Union of India & Ors. upheld the POTA Review Committee report and has ordered the trial of the alleged accused persons in the Godhra Train Accident to be conducted under the Code of Criminal Procedure, 1973. However this is a diminutive victory for the millions of those who still continue to suffer under the dictatorial regime of the police force and the ruling class who seek to legitimise their actions through oppressive and draconian laws.

– Jai SinghNational Director, Criminal Justice Initiative

HRLN

December 2008

Acronyms

ACHR - Asian Centre for Human Rights AF(J&K)SPA - Armed Forces Special Powers (Jammu & Kashmir) Act, 1990AFSPA - Armed Forces Special Powers Act 1958AFSPO - Armed Forces Special Powers Ordinance, 1942AR - Assam RiflesASO - Assistant Security Officer APDP - Association of Parents of Disappeared PersonsBJP - Bharatiya Janata Party BSF - Border Security ForceCAT - United Nations Convention Against Torture and Inhuman and Degrading Treatment, 1984CBI - Central Bureau of Investigation CID - Criminal Investigation DepartmentCISF - Central Industrial Security ForceCPAPED - United Nations International Convention for the Protection of All Persons from Enforced Disappearances, 2006CPI - Communist Party of IndiaCPI (M) - Communist Party of India (Marxist)CRC - United Nations Convention on the Rights of the Child 1989CrPC - Code of Criminal Procedure 1973CRPF - Central Reserve Police ForceCSPSA - Chhattisgarh Special Public Safety Act, 2005CPFs - Central Paramilitary Forces DC - District Collector DGP - Director General of PoliceDIGP - Deputy Inspector General of PoliceFIR - First Information ReportICCPR - International Covenant on Civil and Political Rights 1979IEA - Indian Evidence Act, 1872IGP - Inspector General of PoliceIMF - International Monetary FundIPA - Indian Police Act, 1861IPC - Indian Penal Code, 1860IPT - Independent People's TribunalITBP - Indo-Tibetan Border PoliceKYKL - Kanflei Yawol Kunna Lup MISA - Maintenance of Internal Security Act 1971MLA - Member of the Legislative Assembly

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MPF - Modernisation of State Police ForcesMNC - Multi-National Corporation MoU - Memorandum of UnderstandingNGO - Non-Governmental OrganisationNHRC - National Human Rights CommissionNSA - National Security Act, 1980NSG - National Security Guard (NSG)PESA - Panchayat Extension to Scheduled Areas ActPI - Police InspectorPOTA - Prevention of Terrorism Act, 2002PSA - Public Security ActPUCL - People's Union for Civil LibertiesPUDR - People's Union for Democratic RightsRSS - Rashtriya Swayamsevak Sangh RTI - Right to InformationSEZ - Special Economic ZoneSHO - Station House OfficerSHRC - State Human Rights CommissionSI - Police Sub-InspectorSSB - Sashastra Seema BalSSP - Senior Superintendent of Police TADA - Terrorist and Disruptive Activities Act, 1985 (1987)UAPA - Unlawful Activities (Prevention) Amendment Act, 2004UN - United NationsUNLF - United National Liberation FrontVHP - Vishwa Hindu Parishad

Glossary of terms

Adivasi – official name for tribal groups, literally ‘the ones who were already here’Assam Rifles – central police force administered by the central government operating in the Northeast bigha – measurement of landBrahmin – the highest caste, traditionally priests, teachers and scholarsChamar – a Dalit sub-caste associated with leather work; cobblersChamariya (from Chamar) - a derogatory term for a person of low-casteCommunalism – allegiance to one’s own religious group rather than to society in general.crore – ten millionCPM – Communist Party of India (Marxist)dacoit(y) – thief, theftDalit – generic term for those formerly known as ‘untouchables’, literally ‘broken to pieces’daroga – Sub InspectorDhobi – a washerman (a Scheduled Caste)Emergency (the) – a period of nineteen months starting in 1975 when Indira Gandhi suspended democracygoonda – thug, hooligangram sabha – village council (statutory)Greyhound Unit – a State-sponsored militia set up as a counter-Naxalite force currently operating in Andhra Pradeshhabeas corpus petition – a petition seeking to protect an individual from arbitrary imprisonment by requiring that the arrested person be brought before a courtHindutva – the project of Hindu nationalism, literally ‘Hindu-ness’jawan – soldier Juma – Fridayjhola – bagjus cogens – a fundamental principle of international law that has become a norm from which no derogation is permittedkhatta – cluster of hutslakh – unit of one hundred thousandlathi – a long bamboo cane used by the Indian policeLok Sabha – Lower House of ParliamentMaoist (see also Naxalite) – adherent to the Marxist-Leninist-Maoist revolutionary movementmasjid – mosquemauza – village

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namaaz – Muslim prayersNaxalism – the Marxist-Leninist-Maoist revolutionary movementNaxalite (see also Maoist) – adherent to Naxalism neem – common tree in India with medicinal propertiespanchanama – a legal document signed by public witnesses at the scene of the crime panchayat – elected representatives from a village councilpeepul – common treeRajya Sabha - Upper House of ParliamentRashtriya Swayamsevak Sangh (RSS) – literally: ‘Organisation of National Volunteers’, an extreme-right Hindu Nationalist Groupsabha – assembly Salwa Judum – a State-sponsored militia combating naxalite activity in Chhattisgarhsamiti – committee, organisationsangh – organisationsarpanch – village headScheduled caste – official term for Dalits Scheduled tribe – official term for Adivasis Special Economic Zone (SEZ) – designated area of land with special economic regulations conducive to foreign direct investmentthana – police stationVishwa Hindu Parishad (VHP) – a right-wing Hindu nationalist organisation, offshoot of the RSS

Torture, n.

1. The infliction of severe bodily pain, as punishment or a means of persuasion; spec. judicial torture, inflicted by a judicial or quasi-judicial authority, for the purpose of forcing an accused or suspected person to confess, or an unwilling witness to give evidence or information; a form of this (often in pl.) to put to (the) torture, to inflict torture upon, to torture.

2. Severe or excruciating pain or suffering (of body or mind); anguish, agony, torment; the infliction of such.

Torture, v.

1. trans. To inflict torture upon, subject to torture; spec. to subject to judicial torture; put to the torture. Also absol.

2. To inflict severe pain or suffering upon; to torment; to distress or afflict grievously; also, to exercise the mind severely, to puzzle or perplex greatly. Also absol. to cause extreme pain.

Extra-judicial, a.

1. Lying outside the proceedings in court; forming no part of the case before the court. Of an opinion, confession, etc.: Not delivered from the bench, not made in court, informal.

2. Outside the ordinary course of law or justice; not legally authorized; unwarranted.

Killing, a.

1. a. That kills or deprives of life. lit. and fig.

Forced, ppl, a.

1. Subjected to violence.

2. a. Compelled, imposed, or exacted by force; enforced, compulsory; not spontaneous, voluntary, or optional.

Disappearance, n.

Freq. euphem. An instance of the abduction or arrest (esp. for political reasons) of a person who is subsequently imprisoned or killed, without his or her fate being made known.

Oxford English Dictionary, Second edition, 1989

Introduction

Torture, extra-judicial killings and forced disappearances are a daily reality in India. This report covers a wide range of situations in which officials of the State – the police, the armed forces, security and paramilitary forces, the railway police force and Forest Department officials – use violence and often deadly measures to intimidate and punish citizens for a range of actual or perceived transgressions, crimes and beliefs.

The prevalence of these human rights abuses in India today is rooted in a strong tradition of caste hierarchy and the more recent brutalisation of society through the process of colonisation. India’s independence in 1947 ushered in a new vision of a sovereign, socialist, secular, democratic republic freed from its colonial past. This new vision found expression in the Indian Constitution of 1950, which committed the State to a society free from discrimination, with equality between genders and castes. It also codified a number of fundamental rights, including the right to life (Article 21); freedom of expression (Article 19); the right to equality before the law (Article 14) and freedom from discrimination on the grounds of religion, race, caste, sex and place of birth (Article 15). These fundamental rights are legally enforceable by every Indian citizen. In addition to the fundamental rights set out in Part III, the Constitution also provides for Directive Principles of State Policy in Part IV, which are a non legally-binding “wish list” for the State to move towards. The Directive Principles include living wages for workers (Article 43); free and compulsory education for children (Article 45); and the promotion of educational and economic interests for Scheduled Castes, Scheduled Tribes and other weaker sections of society (Article 46).

Chapter 1 examines in more detail the constitutional principles that provide citizens – at least in theory – with strong protections against torture, extra-judicial killings and forced disappearances. India has signed and ratified a number of international standards and conventions, including the International Covenant on Civil and Political Rights (1979) and the United Nations Convention on the Rights of the Child (1989), signaling its commitment to upholding the human rights of its citizens. India has also signed, but not yet ratified, the United Nations Convention Against Torture (1984) and the United Nations International Convention for the Protection of All Persons from Enforced Disappearances (2006). In addition to these international standards, a number of provisions in the ordinary domestic law seek to protect individuals from abuses by State officials. It is clear, therefore, that the Indian State has a strong theoretical commitment to fundamental rights for all.

There remains, however, an unacceptable gulf between the theoretical commitment to fundamental rights and the successful realisation of these rights in practice. Despite its strong democratic constitutional model, international obligations, criminal law protections and theoretical commitments, the modern Indian State remains shackled to its colonial past: retaining a police force and a criminal justice system that characterise the maintenance of law and order in the State as a struggle by “us” to control “them”.

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The Indian Police Force was set up in 1861 in the aftermath of India’s First War of Independence1 in 1857. It was conceived of as a centralised, paramilitary constabulary concerned with keeping “the natives” in check. At Independence, India’s incumbent Congress Party did not dismantle or reform the colonial police force, and it retains many of its oppressive characteristics today. The same is true of the Indian Penal Code of 1860 (IPC) and the Code of Criminal Procedure of 18722 (CrPC), drafted by Lord Macaulay, a member of the governing council of the East India Company. A large proportion of the Penal Code is devoted to offences against the State and offences against public order. These laws continue to form the basis of the criminal justice system in India today. These colonial legacies of repression are discussed in more detail in Chapter 1.

Chapter 1 also examines the British colonisers’ strategy of enacting draconian laws which gave enormous powers to the police and the armed forces to use preventive detention and violence against citizens suspected of voicing anti-colonial sentiments. As the movement for independence grew in strength, so did the armoury of repressive laws aimed at quelling dissent against British rule. Since Independence, the Indian Government has adopted the same strategies to deal with civil dissent and opposition to its governance in a variety of circumstances, echoing the system of colonial governance under the British. For example, the Armed Forces Special Powers Ordinance was introduced by the British in 1942 to combat the “Quit India” movement. It was re-introduced by the Indian Government in 1958 as the Armed Forces Special Powers Act (AFSPA) to quash the movements for self-determination emanating from the northeastern states. This draconian law remains in force today in much of the Northeast and in Kashmir.

Since Independence, successive Indian governments have introduced a range of security and anti-terrorism laws to combat civil unrest and dissent. Extraordinary laws such as the Terrorist and Disruptive Activities Act of 1985 (TADA) and the Prevention of Terrorism Act of 2002 (POTA) have been used to target political opponents, human rights defenders, religious minorities, Dalits and other “low-caste” individuals, tribal communities, the landless, and other poor and disadvantaged people.

The Indian Government has increasingly relied on militarised police forces to enforce these laws across the country and to combat internal security concerns. Today, India has one of the largest police forces in the world, with approximately two to three million employees at the state and central levels.3 In areas of civil unrest, the Central Government responds by sending more police, army and security forces to affected areas in order to contain rebellion.

Under the anti-terrorism and security laws, and under ordinary criminal law, agents of the State are provided with immunity from prosecution for acts carried out in the course of their duties unless expressly sanctioned by the central or state governments. This has led to an unacceptable

1 This event was also known by the Victorians as the Indian Sepoy Mutiny2 The Code of Criminal Procedure (CrPC) was last amended in 19733 ‘Crime in India’ National Crime and Records Bureau, New Delhi: Ministry of Home Affairs 2001, Annual Report

2005-2006, New Delhi: Ministry of Home Affairs, Government of India 2006

Introduction

3

climate of impunity in which the police and the armed forces are shielded from prosecution for human rights atrocities.

Impunity arises from the failure of states to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators; to ensure that those suspected of criminal activity are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.4

A number of India's security and anti-terrorism laws with their in-built protections of State agents run contrary to the letter and spirit of the Indian Constitution. This highlights that the Indian State, having absorbed the colonial mindset of “us” versus “them”, perceives the fundamental rights set out in the Constitution more as privileges than rights. Under this conception, fundamental rights are “bestowed” upon citizens in times of peace but are unavailable in the arena of law enforcement, conflict and unrest.

The process of identification and stigmatisation of the “other” was evident during the Partition of India in 1947. Thousands of Muslims and Hindus were massacred on both sides of the newly drawn border of India and Pakistan and were forced to flee their homes for fear of further communal violence. Since Partition, the Indian State has continued to characterise various groups at different times as “outsiders”. The branding of those perceived as opponents of the State seeks to differentiate them from the “us” of the Indian State and dehumanises them in the public consciousness. The process of separation begins when political leaders label sections of their own population as the “other”: “enemy of the State”, “enemy of the people”, “security risk”, “Naxalite sympathiser”, “terrorist” and “insurgent”. The State and its law enforcement arms sustain the “us versus them” culture to rationalise and justify State violence.

The Indian Government characterises threats to the status quo as emanating from “outsiders”. The language of terror has enormous power in the popular consciousness. Labeling perceived opponents of the State in this manner, coupled with legislation diluting constitutional standards and criminal law provisions, the State has sought to legitimise the use of violence, torture and extra-judicial killings against those citizens who are perceived to oppose the interests of the State. Torture and State killing in India are consistently characterised as responsive and are justified in terms of “security” and “fighting terrorism”. In this manner, the police and other armed forces become supra-judicial authorities with no accountability whatsoever. Senior politicians implicitly condone their actions as necessary displays of force to “protect the nation from internal threats”. It is these “outsiders” – whether they be Adivasis, protestors against economic development projects, Kashmiris, Manipuris, alleged Naxalites or simply opponents to government policy – who are most at risk from State violence.

4 Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (2005), Principle 1

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The media plays an important role in civil society and reports daily on abuses being carried out by the police, the military and the security forces across India. It provides a welcome level of scrutiny and coverage of human rights abuses that is lacking in many government departments and national and state-level human rights commissions. In some quarters, however, there is a tendency to buy into the middle and upper-class view that State security must prevail over “subversive elements”. Coining terms such as “lock-up deaths” and “encounters” and heralding “encounter specialists” (individuals hired to execute individuals in such a way as to appear in armed conflict) as “heroes of the people” reinforces the injustices suffered by ordinary people at the hands of the State’s forces.

The State armoury – the police, armed and security forces and Forest Department officials – is a highly politicised force that is often intrinsically linked to the interests of the rich and powerful: the politicians, landlords and businessmen. Both prior to and following Independence, the Indian State has characterised rural tensions as “law and order” problems and has chosen to suppress them through violent means rather than addressing the root causes of the discontent. The characterisation of civil unrest in this way has led to a perpetual cycle of violence.

It is the poor – the Dalits, the Adivasis, the landless and the dispossessed – who are most vulnerable to human rights atrocities committed by agents of the State. Chapter 2 gives voice to those who have been terrorised by the police and Forest Department officials. Witnesses and victims at the Independent People’s Tribunal (IPT) testify to the corruption, extortion, intimidation, violence, sexual violence and murder these officials employ against the country’s citizens. They also highlight the difficulty and sometimes impossibility of obtaining justice for the atrocities to which victims have been subjected.

Chapter 3 examines the specific case of torture in India, which is widespread, unaccounted for and rarely prosecuted. The Government relies heavily on the police, the security forces and the armed forces to suppress unrest through violent means. Torture in India is perpetrated in a wide range of situations. It can broadly be divided into two categories: as an alternative tool of criminal investigations and as punishment for civil dissent. Torture is used in police stations across the country and by the State’s forces to intimidate and punish individuals. Judge C. Upendra, a retired judge from Manipur, made the disturbing observation that although the victims and witnesses at the Independent People’s Tribunal came from all corners of the country, the methods of torture used are disturbingly similar. It is as though, he observed, the police in India are issued a manual on how to torture. Beatings, breaking of limbs, simulated drowning, hanging from the ceiling, electrocution and sexual abuse are among the methods of torture described by victims and witnesses.

Severe torture may result in death. As Amnesty International drew attention to in 2007,statistics of custodial deaths as provided by National Human Rights Commission – 1,493 custodial deaths, including 136 deaths in police custody and 1,357 deaths in judicial custody, in the period of 2004-05 – represent only a small proportion of the cases of torture in India.5The Asian Centre for Human Rights recently brought to light the disturbing finding that there are an average of four deaths each day in custody.

5 Statement of Amnesty International, 25 June 2007

Introduction

5

Impunity has long been embedded in the psyche of the armed forces when it relates to the mistreatment and torture of detainees. Despite a number of high-profile Supreme Court judgments that have set down guidelines to prevent the use of custodial torture by the police, the judiciary is often ambivalent towards the torture of those suspected of criminal offences.

Medical professionals are sometimes complicit in police brutalities and fail to provide true and detailed medical reports for victims of torture. This, combined with the common judicial failure to take action against the members of the State’s forces who commit these crimes, results in a situation in which victims are often left powerless to seek reparation, compensation and justice. Chapter 3 concludes with a call to medical professionals to take seriously their ethical obligation to provide assistance to victims of torture and enable the judiciary to take firm action against its perpetrators.

Chapter 4 examines three examples of populations that have, at various times and to varying degrees, sought self-determination for their communities. These include the movement for independence in Punjab in the mid-1980s; the push for autonomy amongst communities in the Northeast since Independence; and the struggles for self-determination of the Kashmiri people and their reaction against the violence of the Indian State.6

Across Kashmir, the Northeast, and Naxalite-affected states in the medial belt of the country, the Indian Government has introduced and extended a number of repressive laws that afford enormous power to the armed and security forces to violate the fundamental rights of citizens in the name of “State security” and the “maintenance of law and order”. The pattern of “insider/outsider” is evident in each of these settings of civil unrest. The Indian Government has employed the colonial method of top-down repression sanctioned by security and anti-terrorism laws to enforce its rule upon its citizens in these areas. Under these laws, the police and armed forces wield enormous powers to use violence and even deadly force against individuals even suspected of carrying out "anti-national" activities.

At the IPT, victims and witnesses from Punjab and Kashmir describe how their fathers, sons and husbands were murdered by the police and armed forces and ‘disappeared’. Many of them still do not know the fate of their loved ones and cling to the hope that they may one day reappear. A number of victims and witnesses describe the failure of the Government to sanction the prosecution of those responsible for the murders and disappearances. The courts have also been reluctant to uphold the rights of victims to obtain justice when faced with atrocities committed in the context of counter-insurgency operations. Victims and witnesses from Manipur and Kashmir describe the struggles of daily life under security laws. Threats of harassment, torture and arbitrary detention hang heavily over these states. Impunity is the hallmark of the activities of the State forces in these areas.

6 Jammu & Kashmir is comprised of three principal regions: Jammu, which is predominantly Hindu, and the valley of Kashmir which is mostly Muslim. A third area, Ladakh, is mostly Buddhist. For the remainder of this publication it will be referred to as Kashmir

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6

Violence against Indian citizens is also evident in the context of movements and struggles over proposed economic development projects. This is examined in Chapter 5. Since the early 1990s, the Indian Government has been committed to a neo-liberal development model. In 1991 the State began signing structural adjustment agreements with the World Bank and the International Monetary Fund (IMF) in return for large loans from the Bank. These structural adjustment agreements include the privatisation of public services (including health, education, water and electricity), the reduction of state subsidies and increased user fees for public services. The structural adjustment programme was accompanied by increased foreign investment and multi-national corporation (MNC) entry into India.

The problems arising from new developments by multi-national corporations directly mirror the exploitive and destructive behaviour of the East India Company 300 years ago. Indian citizens continue to be exploited and repressed in pursuit of land and profit, the only difference being that those responsible are a democratically elected government, rather than a colonial power. The purpose of the Government in a constitutional democracy is to provide security – both physical and economic – to all its citizens. At present, however, the Indian Government appears to act more in the interests of the World Bank, the IMF and foreign shareholders of MNCs than in the interests of its own citizens.

This pattern of activity by MNCs with the connivance of a governing elite is evident throughout the world in places where the demand for cheap mineral resources by Western economies and multi-nationals clash with the needs of local communities.7 Displacing and oppressing the local population are cheap and effective methods of securing the mineral wealth that Western societies demand. India has come full circle in the last 300 years: from oppression by a foreign company to that of a foreign government to that of foreign corporations, with the connivance of the national and state governments. Violence related to economic development is addressed in Chapter 4. “Development” and “economic progress” are the much-lauded benefits to be gained from the displacement of local populations and acquisition of the land. There is, however, little evidence that those most affected will benefit from these projects.

The State is increasingly invoking anti-terrorism laws to suppress opposition to mining projects, dam-building and Special Economic Zones (SEZs). Opposition to these projects by democratic people’s movements and affected populations is a genuine and legitimate expression of disaffection at the mass displacement, loss of livelihood and increasingly violent tactics employed by agents of the State to push through its economic development programmes. Opponents of these projects are often labeled as “anti-national” and “Naxalites” in attempts to discredit them.

Chapter 5 also looks at the violence and human rights violations committed in Chhattisgarh, Jharkhand, Andhra Pradesh and West Bengal as these state governments seek to push through

7 To name just two: Nigeria’s oil and Congo’s Colbalt resources. See ‘The Human Cost of Cheap Cell Phones’ by Kathleen Kern and ‘Mercenaries on the Front Lines in the New Scramble for Africa’ by Andrew Rowell and James Marriott in A Game as Old as Empire Ed. Steven Hiatt, Berrett-Koehler 2007

Introduction

7

economic development programmes at the expense of the communities living in affected areas. In Chhattisgarh, Ilina Sen, the wife of detained human rights activist Dr. Binayek Sen, describes how villagers were forced to sign their consent for the Tata Steel project at Lohandiguda and the Essar Steel plant at Dantewada. This is in contravention of the Fifth Schedule of the Indian Constitution which makes it mandatory that any development project obtain the consent of the people living in that area. Victims and witnesses at the Independent People’s Tribunal testify to the enormous costs that land acquisition and economic development programmes have imposed on their lives and livelihoods.

The notion of the “outsider” was extended to Naxalites in Andhra Pradesh and West Bengal in the 1960s. The rise of Maoist ideology was, and still is today, perceived by the State as a threat to its national identity across the medial states of India. In 2006 the Indian Prime Minister, Manmohan Singh, stated that Naxalism is the single biggest threat to India’s internal security. Affecting nine states in India (dubbed “the red corridor”), the Naxal movement was born out of the concerns of the rural poor: struggles for land and against social oppression and structural violence in the form of unfair wages, bonded labour and untouchability practices.8 The movement came to prominence in West Bengal and Andhra Pradesh in the 1960s, representing the desires of the marginalised and dispossessed for a political voice and advocating armed struggle as the best response to the increasing exploitation of the rural poor. During its early years the Naxal movement received support from the intelligentsia and even from the urban middle classes. In recent times, however, Naxalism is increasingly characterised as being in opposition to the interests of the middle and upper classes, and its support base is predominantly comprised of Adivasis and the rural poor. In the 1980s and 1990s, the movement spread to Karnataka, Maharashtra, Madhya Pradesh, Chhattisgarh, Orissa and Bihar where social inequality and lack of political voice contributed to the attraction of the Maoist cause among the marginalised and dispossessed in Indian society.

Naxalism has become equated with “terrorism” by politicians and the popular media. The term “Naxalite” has been expanded to include human rights defenders, all those who oppose the State’s economic development policies and the poor and landless, who are seen in many instances as obstacles to the nation’s economic growth. As the writer Arundhati Roy puts it: “Poverty has been slyly conflated with terrorism”. The labeling of human rights defenders and opponents to governmental policies as “Naxalites” further seeks to legitimise the violence used against them as necessary "anti-terrorist" measures.

Seen as a threat to the existing power structure of the privileged classes, the Naxalite movement is brutally suppressed by armed and paramilitary forces, which employ torture, disappearances and extra-judicial killings to terrorise Naxalites and their supporters. The central government has deployed 33 battalions of central paramilitary forces, with 13 battalions in Chhattisgarh

8 The Naxal movement is named after the 1967 peasant’s armed uprising at Naxalbari in West Bengal which was mounted in opposition to the Communist Party of India (Marxist) (CPI (M)). The movement advocates following the Marxist-Leninist-Maoist revolutionary movement in India

State Terrorism

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and five battalions in Jharkhand, to assist the State Police Forces with anti-Naxal operations; it recently decided to provide five more battalions to Chhattisgarh and one more to Jharkhand.9

Victims and witnesses from Chhattisgarh, Jharkhand, Andhra Pradesh and Karnataka describe the terrible situation in their states, in which innocent Adivasis and the rural poor are targeted as alleged Naxalites and Naxalite sympathisers, driven from their homes or murdered by the police and armed forces. The State Government of Chhattisgarh has enacted a law to deal with the security threat - the Chhattisgarh Special Public Security Act of 2006 (CSPSA) - which draws a wide net in criminalising “unlawful activities”.

Since 2005, an armed militia called the Salwa Judum has been operational in Chhattisgarh to combat alleged Naxal activity. The Salwa Judum is a State-sponsored force that uses violent tactics against villagers deemed to support Naxalites in the area. In such areas, it is the most vulnerable who find themselves caught in a perpetual cycle of violence perpetrated by both Naxalites and anti-Naxalite forces.

Chapter 6 examines some incidents of communal violence against Sikhs, Muslims and Christians. In recent years, communalism has increasingly entered the political arena, and caste and communal factors have become a central pillar of political campaigns. The rise of right-wing Hindutva politicians in Gujarat and Maharasthra over the past 20 years has also led to the alienation of Muslims, who are increasingly characterised as “outsiders”, “terrorists” and “insurgents” by these right-wing fascist groups. Hindutva nationalists envisage a Hindu nation in which non-Hindus are second-class citizens, and are subject to the agenda and governance of a Hindu State. Corresponding to the increased emphasis on “Hinduness” in politics, communal violence is on the rise. According to the Ministry for Home Affairs, there were 761 communal incidents in 2007 in which 99 people were killed and 2,227 people sustained injuries. In 2006, there were 698 communal incidents, 133 deaths and 2,170 people injured.10

The issue of communalism in India is explored in greater depth in another Independent People’s Tribunal publication: Rise of Fascism in India: Victims of Communal Violence Speak. Chapter 5 of this report gives an overview of the communal violence during the anti-Sikh riots of 1984, the Mumbai riots of 1992-93, the Gujarat genocide of 2002 and the Dargah riots in Gujarat in 2006 as described by victims and witnesses at the tribunal. In the Mumbai riots, Gujarat genocide and Dargah riots, Muslim men, women and children were targeted by the police, who used violence and deadly force against them on account of their religious beliefs. The complicity of the police in the communal violence in both Mumbai and Gujarat is a striking indictment of State violence at its most stark. The aftermath of these crimes highlights the lack of political will to prosecute individuals for attacks on Muslims. Farooq Mapkar was shot by a policeman in Mumbai during the 1992-93 riots. He relates how a policeman entered a mosque and opened fire on the people inside, killing six and wounding a number of others. Fifteen years later, he continues to persevere in his quest for justice against the odds.

9 Annual Report 2007-2008, Ministry of Home Affairs, New Delhi: Government of India, 2008, page 24. Available at:http://mha.nic.in/pdfs/ar0708-Eng.pdf

10 Ibid., page 108

Introduction

9

A number of victims and witnesses describe the treatment of Muslim men who were arrested and detained under POTA (now repealed) on the pretext that they were “terrorists” and “insurgents” in the aftermath of the Gujarat genocide Approximately 200 Muslims remain detained without trial under this law. Not one Hindu has been detained under POTA.

The rule of law has been steadily eroded through the introduction of increasingly draconian anti-terrorism laws, and, despite the repeal of POTA, hundreds of people remain in detention under its provisions. The stigmatisation of the Muslim community is not limited to the states of Maharashtra and Gujarat, but is evident elsewhere. In a further deterioration of the rule of law, the Faizabad Bar Association in Uttar Pradesh has banned its lawyers from representing defendants accused of terrorist activities, and there have been attempts to target those that represent their clients. This is a clear affront to principles of natural justice and highlights the far-reaching impact of the process of dehumanisation of the “other”.

“Encounter killings” are a method employed by the State in order to eliminate its most disruptive citizens: criminals, Naxalites, the poor and the dispossessed. Encounter-killing11 is simply a more palatable name for murders and extra-judicial killings committed by the State’s police, armed forces and security forces. The term is used across India to denote a false series of stock events following the police or armed forces’ “apprehension” of an alleged criminal. The purported sequence of events is as follows: The alleged criminal attempts to escape and shoots at the police (invariably misfiring) as he flees. The police return fire, killing the alleged criminal.

In May 2007, the Supreme Court expressed concern about the killing of innocent people in Jammu & Kashmir and the Northeast who had been branded terrorists. Justice Aftab Alam noted that: “Just for getting a gallantry award,12 innocent people in Jammu & Kashmir and the Northeast are termed terrorists and killed". Endorsing this observation, Justice Singhvi said: “It is also being done by the police, and it is happening throughout the country. In the so-called encounters, the justification offered is: ‘If we [police] don’t kill them, they [terrorists] will kill us’. Fake encounters are for gallantry awards and for getting an out-of-turn promotion. The whole thing is devilishly planned”.13

The upper and middle classes are often ambivalent to the way in which “outsiders” are dealt with - outside of the legal sphere. Incidences of encounter killings have increased over recent years. According to the National Human Rights Commission, across the country (excluding Jammu & Kashmir), there were 83 and 100 encounter killings in 2002-03 and 2004-04 respectively;14 the figures increased the following year to 122 in 2004-5.15 Furthermore, according to the NHRC, fake encounters in the country have risen nearly four times since

11 Alternatively termed ‘fake encounters’, ‘false encounters’ or simply ‘encounters’12 Bravery award in recognition of service to the State13 ‘Judges Voice Concern over Fake Encounters’ by J. Venkatesan, The Hindu, 1 May 200814 NHRC Annual reports 2002-2003, 2003-2004, 2004-2005 and 2006-2007, New Delhi: Ministry of Home Affairs

2003, 2004, 2005, 2006, 200715 ‘India's ‘acceptable’ encounter killings’ by Bijo Francis, 1 April 2008. Available at: www.upiasiaonline.com/Human_

Rights/2008/04/01/indias_acceptable_encounter_killings/8139/

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2002-03 to 301 in the year 2006-07.16 Chapter 7 looks at the use of encounter killings against those deemed to be “Naxalites”, “terrorists” and “gangsters”.

Activists and citizens who protest against State violence are often persecuted for standing up to the repressive measures imposed by the State. They too are branded “Naxalites” or “terrorists” in efforts to discredit them, and false cases are often filed against them. One example of the State’s heavy-handed tactics against its opponents is the continued imprisonment of Dr. Binayek Sen, a pediatrician and human rights activist who was recently awarded the Jonathan Mann award for Global Health and Human Rights. Dr. Sen worked with his wife in Chhattisgarh, providing medical treatment to hundreds of rural villagers. His outspoken criticism of the Salwa Judum and the economic development policies of the State Government led him to be charged with a number of crimes. He has been in detention since May 2007, and his applications for bail have been repeatedly denied. In Chapter 8, we will examine in greater detail the case of Binayek Sen and other human rights defenders who have been, and continue to be, persecuted by the Indian Government on account of their opposition to certain government policies.

It is the duty of the State to provide the means, laws and mechanisms to protect all citizens from abuse by the Government or any individual perpetrator. This is the rule of law, which is an integral part of a fair and just society. Despite the theoretical guarantees of fundamental rights to all Indian citizens, in practice the poor and dispossessed are rarely able to attain justice for torture, extra-judicial killings and forced disappearances at the hands of the police, armed forces and security forces.

The rule of law in India has been steadily eroded through the enactment of anti-terrorism and security laws that prioritise the use of force against Indian citizens over the protections against violations contained in the Constitution and in Supreme Court guidelines. A culture of impunity, whereby perpetrators of State violence are shielded from prosecution, together with the failure of the Indian Government to protect its citizens or ensure that they are compensated for atrocities inflicted upon them, is a further assault on the rule of law. The culture of impunity is the greatest threat to the rule of law in India today. The challenges to the rule of law and a number of steps that must be taken to fight impunity are examined in Chapter 9.

Chapter 9 also discusses a number of practical steps that citizens, activists, lawyers and medical professionals can undertake to fight impunity, ensure that justice is upheld and strengthen the rule of law in the world’s largest democracy.

In addition to steps that individuals can take to achieve justice in the short term, it is clear that in order to combat the worst excesses of the police, armed and security forces reforms a number of large-scale must take place in the long term. Chapters 9 and 10 present a number of conclusions that suggest how both civil society and the Indian Government can take action to end the cycle of violence that is apparent in all areas of civil unrest. Chapter 10 addresses the need for large-scale reform of the Indian Police Service so that it follows a community-serving model rather than the model of a “force” that maintains order at any cost. The chapter then

16 ‘No mention of Kashmir’, United News of India, 22 May 2008

Introduction

11

points to a number of necessary legislative reforms to ensure that victims of torture, extra-judicial killings and forced disappearance are adequately protected under domestic law and that perpetrators of these crimes do not evade justice. We then turn to the important role that the NHRC can play in preventing torture and extra-judicial killings and in ensuring that the perpetrators of these crimes are brought to justice. In order for the NHRC to carry out its mandate to promote a human rights culture to best effect, it must be strengthened and its authority increased so that it can check the powers given to the police, armed forces, security forces and state officials.

The report concludes with the recommendations of the Independent People’s Tribunal's to the Indian Government to put a stop to the use of violence against citizens and to prosecute and punish those responsible for human rights atrocities.

Chapter 1: A history of repression

Protections against torture, extra-judicial killings and forced disappearances

There is no specific legislation prohibiting the use of torture in India. Despite this, there are strong international, constitutional and legal protections available that prohibit torture, extra-judicial killings and forced disappearances. This chapter begins by setting out the various prohibitions on torture, extra-judicial killings and forced disappearances in international law before turning to the numerous constitutional and legal protections contained in India’s domestic law. It will then address the role of the National Human Rights Commission (NHRC) in providing a mechanism of redress for victims of torture, extra-judicial killings and forced disappearances.

The International Framework

There are no explicit provisions in the Indian Constitution regulating the incorporation and status of international law into the Indian legal system. However, Article 51(c) stipulates as one of the Directive Principles of state policy, that: “The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with another". International treaties do not automatically become part of national law; they must beexpressly incorporated into domestic law by a legislative act. While treaty law is not directly applicable, customary international law does have direct application provided that it is not inconsistent with national legislation.

Universal Declaration of Human Rights (1948)

The Universal Declaration of Human Rights (1948) marked the emergence of a worldwide trend to protect and guarantee certain basic human rights. Article 3 of the Universal Declaration of Human Rights states that, “Everyone has the right to life, liberty and security of person”. The Declaration recognised the prohibition on torture to be an absolute, non-derogable right.

Article 5 of the Declaration states that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

International Covenant on Civil and Political Rights (1976)

The Indian Government ratified the ICCPR in 1979. Article 2 of the ICCPR sets out the obligation of states to respect and ensure to all individuals within their territory and subject to their jurisdiction all rights set out in the ICCPR. These include: the right to life (prohibition on extra-judicial killing), the prohibition of torture and arbitrary detention without discrimination of any kind and the provision of remedies to victims of human rights violations.

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Article 6 of the ICCPR provides that:

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”.

Article 7 further states that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

Article 4 of the ICCPR specifically states that these rights cannot be waived “even in times of public emergency threatening the life of the nation”.

These obligations include the duty to initiate independent and impartial investigations into allegations of human rights violations. Moreover, under Article 2(3) (a) and (b) of the Covenant, State parties are obliged to ensure that there are remedies available to victims of human rights violations and, more importantly, that those remedies are effective.

The Indian Government has not yet adopted any law incorporating the provisions of the ICCPR into domestic law. Nonetheless, the Supreme Court has displayed considerable judicial activism in this area. The Supreme Court has consistently construed statutes so as to ensure their compatibility with international law. With regards to the ICCPR, it has repeatedly held that the provisions of the ICCPR that elucidate the fundamental rights guaranteed by the Constitution can be relied upon by courts as facets of those fundamental rights and are enforceable. India is, therefore, obliged not only to respect the rights set out in the ICCPR in principle, but also to take effective measures to ensure that extra-judicial killings do not take place on its territory.

United Nations Convention against Torture (1984)

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (CAT) defines torture and inhuman and degrading treatment as:

“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 him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.17

The Convention guarantees an effective remedy for victims of torture and inhuman and degrading treatment in Article 2 and obliges countries to take all measures to prevent torture within their own territory and by any person within their jurisdiction and to punish perpetrators under their domestic criminal law.18

17 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT), Article 1

18 CAT, Articles 4, 5 and 6


15

The Convention has been ratified by 117 countries.19 Alongside Sudan and the Democratic Republic of the Congo, India is one of just nine countries that have signed but not yet ratified the UN Convention against Torture of 1984 (CAT).20 In February 2008, eleven years after signing the Convention, the Indian Government announced its intention to introduce domestic legislation to comply with the provisions of CAT.21 This will be done “soon”, according to a government spokesperson.22

India’s ratification of CAT would throw the State’s commitment to the use of force, through the activities of the police, armed forces and security forces, into sharp relief. The Convention states explicitly that:

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency can be invoked as a justification of torture”.23

With the implementation of CAT, India would be liable to a visit from the UN Special Rapporteur on Torture. Amnesty International reports that so far, despite a number of requests from the office, the Special Rapporteur has not been yet been invited to visit India.24 Despite this, the Special Rapporteur on Torture has commented on India based on information he has received over a number of years:

“While the size and diversity of the country make it difficult to characterise the intensity of the problems all over, it certainly appears that there is a tradition of police brutality and arbitrariness in much of the country, the degree of brutality frequently being sufficiently unrestrained to amount to torture, often with fatal consequences. The brutality is sometimes linked to corruption and extortion and is often deployed in the service of local vested interests, be they economic or official. The use of excessive and indeed unprovoked and unjustified forces is common, especially in response to protests demanding rights. The persecution of those pursuing complaints against the police is a not infrequent phenomenon. In areas characterised by armed resistance, the security forces seem notably prone to resort to extreme and often lethal violence, even if individual abuses not carried out as part of organised military operations may be sanctioned. In general, while not absolute, the level of impunity among police and security forces seems sufficiently substantial as to conduce a general sense among such officials that their excesses, especially those committed in the line of duty, will at least be tolerated, if not encouraged".25

19 ‘Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, UN’, The Oxford Dictionary of Law Enforcement by Michael Kennedy, Oxford University Press, 2007

20 CAT has been signed and ratified by 145 nations. The other eight which have not ratified it are Sudan, Comoros, Congo, Dominican Republic, Sao Tome and Principe, Gambia, Nauru and Guinea-Bissau.

21 This would the first step towards ratification22 ‘India may pass an anti-torture law, finally’, Hindustan Times, 11 February 2008. Available at: www.hindustantimes.

com/StoryPage/StoryPage.aspx?id=c3b45051-aa7d-47e5-ad230f33b5ddd055&&Headline=India+may+pass+an+anti-torture+law%2c+finally

23 CAT, Article 224 Amnesty International: Public Statement, 26 June 200725 Report of the Special Rapporteur on Torture, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights

Resolution 2000/43, UN Doc. E/CN.4/2001/66, 26 January 200, paragraph 57

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India’s introduction of the necessary and specific anti-torture legislation to ratify CAT would undoubtedly be a positive step towards fighting its continued usage in India.

United Nations Convention on the Rights of the Child (1989)

The Indian Government ratified the CRC in 1989. The Convention expressly forbids the use of torture against children, and India is bound to comply with its prohibitions.

Article 37(a) of the Convention on the Rights of the Child (CRC) states that:

"No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age".

United Nations International Convention for the Protection of All Persons from Enforced Disappearances (2006)

India has signed, but not ratified, the Convention on the Protection of All Persons from Enforced Disappearances (CPAPED).26 Article 2 of the Convention defines an “enforced disappearance” as:

“The arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.

Articles 5 states that “enforced disappearances” are a crime under international law and calls upon states to recognise the practice as a crime in their domestic law. The Convention requires that investigations are carried out into all allegations of enforced disappearance and that those allegedly responsible are prosecuted by the State. Parties to the Convention are required to ensure that victims of forced disappearances have the right to obtain reparation and compensation.

Obligations in International Law

Considering the relevant international instruments relating to prohibition of torture, inhuman and degrading treatment, extra-judicial killings and forced disappearances, it is apparent that India has clear obligations under international law to prosecute and investigate allegations of human rights violations.

Despite not ratifying CAT and CPAPED, India is still bound by their provisions. The prohibition on torture and inhuman and degrading treatment contained in CAT, for example, is a jus cogens principle of international law. This was recognised for the first time by the United Nations International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Furundžija in 1998 and makes the crime of torture a crime of universal jurisdiction, punishable

26 India signed CPAPED on 1 February 2007


17

in any state irrespective of the nationality of the victim or the site of the crime.27 Furthermore, while India has yet to ratify CPAPED, protection against forced disappearances is contained within the ICCPR. When commenting on India’s implementation of its obligation to ensure protection of the right to life enshrined in Article 6 of the ICCPR, the UN Human Rights Committee has specifically referred to the issue of forced disappearances as a violation of the right to life and the need to establish "effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life".28

Constitutional Protections

At Independence, “British subjects” became “Indian citizens” – the bearers of enforceable constitutional rights. The Constitution of India (hereafter “the Constitution”) came into force in January 1950. Signaling a new beginning for the country it codified the fundamental rights and directive principles of State policy that would frame the relationship between the State and its citizens. The fundamental rights set out in the Constitution of India are pre-existing, inalienable rights inherent to each individual citizen, given legal enforceability through the adoption of the Constitution.

The Preamble to the Constitution summarises its objectives:

“We the people of India, having solemnly resolved to Constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY, of thought, expression, belief, faith and worship; EQUALITY, of status and of opportunity; and to promote among them all; FRATERNITY, assuring the dignity of the individual and the unity and integrity of the nation”.29

On paper, Indian citizens are guaranteed a range of fundamental rights. The Constitution classifies these rights under the right to equality and the right to particular freedoms: the right against exploitation, the right to freedom of religion, cultural and educational rights and the right to constitutional remedies.

Of particular importance for the purposes of this analysis is the right to life contained inArticle 21:

“No person shall be deprived of his life or personal liberty except according to procedure established by law”;30

the right to equality in Article 14:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”;31

27 Prosecutor v. Furundzija, ICTY Case No. IT-95-17/1-T, 10 December 199828 United Nations Human Rights Committee, General Comment No. 6, Article 6, 16th Session of 198229 As amended in 197630 Constitution of India 1950, Part III, Article 2131 Constitution of India 1950, Part III, Article 14

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and the right against discrimination in Article 15(1):

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.32

The protection against discrimination embodied in Article 15 is of particular importance in the context of torture, extra-judicial killings and forced disappearances. Discrimination against particular individuals and communities has historically served to cause and legitimise abuses against them, and discriminated groups today remain the most vulnerable to human rights abuses committed by State officials.

The approach of the Supreme Court and constitutional protections

Article 21

The Supreme Court has played a significant role in interpreting constitutional provisions broadly to encompass a wide range of rights. The right to life in Article 21 as read with Article 14, for example, has been interpreted expansively by the Supreme Court to include the right to a life of dignity, freedom from exploitation and a number of socio-economic rights contained in the directive principles of the Constitution.33 Reasoning in this manner, the Supreme Court construed Article 21 of the Constitution to include the prohibition of torture and inhuman and degrading treatment.

In the 1981 Supreme Court case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, the Court declared that:

“Any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity… and it would… be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21”.34

Articles 20(3), 22(1) and 22(2)

Further constitutional protections against the use of torture are provided by Article 20(3), which states that:

“No person accused of any offence can be compelled to be a witness against himself”.35

32 Constitution of India 1950, Part III, Article 1533 In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) 2 SCR 516 at 529, for example, the

Supreme Court stated that: “The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and co-mingling with fellow human beings”.

34 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) 2 SCR 516 at 52935 Constitution of India 1950, Part III, Article 20(3)


19

And Article 22(1) and (2), which provide that a person who is arrested must be informed as soon as possible about the grounds of his arrest.

Articles 32 and 226

A number of other constitutional principles provide protections for victims of human rights violations. The right to constitutional remedies embodied in Articles 32 and 226 of the Indian Constitution guarantee the right of individuals who have had their fundamental rights violated by the State to approach the Supreme Court or the High Courts for their protection. The courts are given the power to take immediate action to stop violation of a fundamental right and to punish those responsible.

Supreme Court jurisprudence on torture

In addition to the efforts of the Supreme Court to incorporate the prohibition on torture and inhuman and degrading treatment into the domestic law, the Court has, in the absence of specific laws regarding the treatment of detainees and prisoners, intervened and ordered reforms and improvements to the system to prevent abuses in custody.36 In addition to giving expansive readings to fundamental constitutional rights, the Supreme Court has issued a number of guidelines – predominantly in cases of custodial death and custodial torture – that seek to give added practical protection for citizens from violations of their constitutional rights.

D K Basu v. State of West Bengal

The landmark case of D K Basu v. State of West Bengal37 in 1997 is a strong example of the Court’s interventionist approach in combating custodial violence. The case began as a writ petition drawing the Supreme Court’s attention to deaths in police stations and alleged attempts by the State Government to cover up their occurrence. Speaking on behalf of the Supreme Court, Justice A. S. Anand identified Article 21 as including the prohibition of torture and inhuman and degrading treatment and observed the need to fill the lacuna in domestic law, which did not contain any specific prohibition against its use:

“Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness, and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen”.38

Noting the disturbing prevalence of violence and deaths in custody, the Supreme Court established detailed instructions for proper procedures to be followed by the police in cases of

36 See Basic Principles for the Treatment of Prisoners, adopted and proclaimed by United Nations General Assembly resolution 45/111 of 14 December 1990 and Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977

37 D K Basu v. State of West Bengal (1997) 1 SCC 41638 Ibid., page 429

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arrest or detention in its 1996 judgment. These guidelines are set out below:

1 Police personnel should wear name badges, and their identity details should be logged before they carry out interrogations.

2 A memo of arrest should be prepared, signed by the accused, and witnessed by a member of the accused’s family or a respected member of his community.

3 A person who is detained in a lock-up has the right to have someone informed of his whereabouts.

4 The police must notify the chosen friend or family member of the time, place of arrest and venue of custody.

5 The arrested person must be informed of his right to make contact with a friend or family member.

6 The details of the friend or family member must be logged at the police station.

7 The arrested person may ask for a medical examination to take place. All findings should be logged and signed by the parties.

8 A trained doctor should subject the arrestee to medical examination every 48 hours during his detention in custody by a doctor.

9 Copies of all the documents above should be sent to the Magistrate for his record.

10 The arrested person may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11 A police control room should be provided at all district and state headquarters, and information regarding the arrest shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest, and it should be displayed on a conspicuous notice board in the police control room.39

The Supreme Court insisted that these guidelines be requirements to be implemented by state governments across the country and concluded optimistically:

“It is hoped that these requirements would curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes”.40

Unfortunately, the aim of the Supreme Court to prevent the use of torture and violence against detainees has not been realised.

Domestic legal framework

The domestic legal framework also contains a number of specific provisions that prohibit the use of torture and extra-judicial killings by State actors; in particular the police.

39 Ibid., paragraphs 36 to 4040 Ibid., paragraph 40


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Domestic legal provisions seeking to uphold the rights of the accused and prohibit ill-treatment and torture in custody are contained in the Indian Penal Code of 1860 (IPC), the Indian Police Act of 1861 (IPA), the Indian Evidence Act of 1872 (IEA) and the Code of Criminal Procedure of 1973 (CrPC). While the IEA and the CrPC contain safeguards against the extraction of confessions by means of torture, they do not explicitly prohibit the use of torture as a means of obtaining evidence.

Sections 330 and 331 Indian Penal Code

Sections 330 and 331 of the IPC explicitly prohibit the “voluntarily causing hurt to exhort confession or to compel restoration of property” from an accused in police custody and make the crime punishable by up to 10 years imprisonment.41

Section 29 IPA and Sections 25 and 26 Indian Evidence Act

Section 29 of the IPA provides for imprisonment for up to three months for offences committed by police officers, including “unwarrantable personal violence to any person in his custody”.42

In an attempt to restrict the use of torture in custody, Sections 25 and 26 of the IEA state that a confession made to a police officer is not admissible in evidence.43

Sections 50, 54, 56 and 57 Code of Criminal Procedure

A number of sections in the CrPC also provide a strong basis for reducing human rights violations. Section 50 CrPC provides that an arrested person should be informed of the grounds of arrest by furnishing him with full particulars of the charges.44 Sections 56 and 57 of the CrPC state that a person arrested without warrant must be produced before a magistrate within 24 hours.45

Under Section 54 CrPC, an arrested person has the right to have him or herself medically examined on request to establish whether anyone else has inflicted wounds on his person while in custody.46 The Supreme Court in Sheela Barse v. State of Maharashtra stepped in to strengthen this provision by making it a requirement that:

“the magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreatment in police custody and inform him that he has a right under Section 54 to be medically examined”.47

Under the Criminal Procedure Code, a magistrate has a legal duty to order an inquiry when an accused claims that he or she has been subjected to torture whilst in custody.

41 Indian Penal Code 1860 (IPC), sections 330 and 331 42 Indian Police Act 1861 (IPA), section 2943 IEA, sections 25 and 26. Under section 27 of the IEA, however, confessions leading to the recovery of corroborating

evidence encourage the use of forced confessions by the police 44 Code of Criminal Procedure 1973 (CrPC), section 5045 CrPC, sections 56 and 5746 CrPC, section 5447 Sheela Barse v. State of Maharashtra (AIR 1983 SC 378)

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Sections 162 and 164 Code of Criminal Procedure

Section 162 of the CrPC prohibits the use of an accused’s statement recorded by a police officer and prohibits a police officer from obtaining the signature of a person on a statement made by the accused.48 Furthermore, Section 164 CrPC states that magistrates are required to ensure that a confession is made voluntarily.

Sections 46A and 50A Code of Criminal Procedure Amendment Act (2005)

The CrPC Amendment Act (2005) introduced more legislative measures to restrict abuses in detention. For example, Section 46A prohibits the arrest of a woman after sunset and before sunrise, except in “exceptional circumstances” and with the prior permission of a Judicial Magistrate.49 Section 50A also provides that:

“Every police officer or other person making an arrest… shall forthwith give the information regarding such arrest and the place where the arrested person is being held to such person as may be nominated by the arrested person for the purpose of giving such information”.50

Section 176A Indian Penal Code

In cases of custodial deaths, an inquiry by a magistrate is mandatory under Section 176A of the Indian Penal Code (1861).

Public law remedies for violations of fundamental rights

A victim of torture, or family member of a person subjected to extra-judicial killing or forced disappearance cannot claim compensation for his or her treatment under criminal law. The court hearing the case, however, has discretion when imposing a sentence of fine to:

“order the whole or any part of the fine recovered to be applied in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a civil court or when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death”.51

In practice, however, the Indian criminal courts rarely invoke this discretionary power.

The Indian Constitution does not contain an express right to an effective remedy or reparation for torture. However, the Supreme Court has repeatedly awarded compensation pursuant to

48 CrPC, section 16249 CrPC, section 46A50 Code of Criminal Procedure (Amendment) Act 1973, section 50A51 CrPC, sections 357 (1)(b) and (c)


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writ proceedings under Article 3252 and the High Court under Article 226.53 Both courts have awarded compensation for the infringement of fundamental rights in the form of exemplary damages.

The Supreme Court examined the issue of State compensation for a breach of Article 21 of the Constitution for the first time in 1981 in the case of Khatri v. State of Bihar (the Bhagalpur Blinding case).54 The Court, however, did not order compensation in this case, because the responsibility of the police officers concerned was still under investigation. The Court did order the State to pay for the medical treatment of the seven blinded prisoners.

The Supreme Court awarded compensation for the first time for a violation of Article 21 in the case of Rudul Shah v. State of Bihar,55 which concerned unlawful detention for a period of fourteen years. The petitioner was awarded 35,000 rupees in recognition of the State’s responsibility to compensate the petitioner, with the Court holding that: “the State must repair the damage done by its officers to the petitioners’ rights. It may have recourse against those officers".56

In the leading case of Nilabati Behera v. State of Orissa,57 a case of custodial death resulting from torture, the Supreme Court examined the constitutional basis and nature of compensation for the infringement of fundamental rights. The Court referred to its duty to enforce fundamental rights under Articles 14, 21 and 32 of the Constitution and stressed the need to grant effective remedies to provide complete justice for victims of custodial death. Since the decision in Nilabati Behera v. State of Orissa, the Supreme Court and the High Courts have awarded compensation under Article 21 in cases of rape, torture, custodial deaths and forced disappearances.

In addition to monetary compensation, the Supreme Court and High Courts have directed the State to suspend public officials and/or impose other disciplinary measures, institute criminal investigations against them and authorise their prosecution.

While there are available remedies for victims of torture, extra-judicial killings and forced disappearances in the courts, in practice these remedies are often out of reach for ordinary citizens. Cost, time and travel, in addition to the evidentiary burden on the applicant, all contribute to the difficulties in attaining damages:

“The process of seeking remedies from the Supreme Court and High Courts is also beyond the

52 Article 32 of the Constitution states that: “1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed; 2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part…”

53 Article 226 states that: “1) Notwithstanding anything in article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari , or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”

54 Khatri v. State of Bihar AIR 1981 SC 92855 Rudul Shah v. State of Bihar (1983) 4 SCC 14156 Ibid., page 14857 Nilabati Behera v. State of Orissa (1993) 2 SCC 746

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means of many victims. Even with the assistance of counsel, the time and travel necessary limit the ability to seek recourse from the higher judiciary. When combined with the prevalence of attacks on and violent intimidation of victims, witnesses, and human rights attorneys and activists, many victims are unable or unwilling to pursue these remedies”.58

Role of the National Human Rights Commission

The National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) were introduced in 1993 as a means of holding agents of the State accountable for human rights abuses.59 The NHRC reports on a range of human rights abuses, including torture, custodial deaths, extra-judicial killings and forced disappearances.60

One of the primary functions of the NHRC is to receive complaints and initiate investigations into violations of human rights by public servants. Abuses of police power and human rights violations comprise over 60 per cent of the complaints made to the NHRC every year.61 In 2007, 76,444 cases were registered with the Commission for consideration.62

The NHRC requires all state governments and union territories to ask District Magistrates and the Superintendents of Police to send a report of any custodial death or rape within 24 hours of its occurrence to the NHRC. In addition, they can ask for information on any case, send their own investigative teams to look into a case or rely on other investigative agencies for enquiring into a case. Between 1 April 2007 and 31 December 2007, a total of 1,459 cases of custodial deaths were reported to the NHRC by the state governments and union territories.63

The NHRC has made a series of recommendations on reforms to the criminal justice system and the accountability of State agents. For example, concerned with the lack of proper post mortems conducted to enquire into causes of death in police and judicial custody, the Commission has requested video tapings and more detailed post mortem reports. In addition, where compensation is awarded to a victim’s family for death caused by a member of the police force, they have requested the states to extract a part of the compensation amount from the individual responsible for the death.64

The NHRC has often expressed disappointment over the continued participation of the police forces in committing torture, extra-judicial killings and forced disappearances and has even gone so far as to state that extra-judicial killings have become virtually a part of State policy.65

58 ‘Colonial Continuities: Human Rights, Terrorism and Security Laws in India’ by Anil Kalhan, Gerald P Conroy, Mamta Kaushal, Sam Scott Miller and Jed S Rakoff, Columbia Journal of Asian Law, Volume 20(1) (2006) pp. 93-234, page 206

59 Protection of Human Rights Act 1993 (PHRA), sections 3 and 2160 Annual Report 2004-2005, Ministry of Home Affairs, New Delhi: Government of India, 2005. Available at: http://

nhrc.nic.in/Documents/AR/AR04-05ENG.pdf61 Human Rights for the Twenty-First Century by Jaytilak Guha Roy, New Delhi: Indian Institute of Public

Administration, 200462 Supra, footnote 9, page 6263 Supra, footnote 9, page 6264 Annual Report 2001-2002, National Human Rights Commission, New Delhi: NHRC, 2002, pages 32-3665 ‘Report on Prevention of Atrocities against SCs and STs’ by K. B. Saxena at page 106. Available at: http://nhrc.nic.


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Despite making a number of recommendations on the subject, no substantive progress has been made on their recommendations for a variety of reasons.

There are a number of serious obstacles to the effectiveness of the NHRC in holding the State and its agents accountable for atrocities. the NHRC is not authorised to enquire into complaints of human rights violations committed by members of the armed forces, which include the army, navy and air forces, as well as a number of central armed police forces, such as the Border Security Force (BSF). This restriction to its mandate makes it impossible to address alleged abuses that are prevalent in the so-called “disturbed” areas where these forces are operational. In this situation, the role of the NHRC is restricted to making recommendations to the Central Government.

When investigating allegations of custodial torture or death, the NHRC often relies on the investigatory powers of the very authority it is itself investigating. This leads to a farcical situation in which in its findings are restricted to those made by the very police force it is seeking to investigate.

Another major flaw is that the Commission has no power to enforce its decisions. Where its enquiries discover human rights abuses, the powers of the NHRC and SHRC’s are limited to simply recommending that the Government take action against the perpetrator or grants relief to the victim.66 If a state government refuses to accept the recommendations of the Commission, there is no provision in the law that empowers it to force the Government to implement its recommendations.

Due to its restricted remit, recommendatory role and a lack of independent investigatory powers, the NHRC has understandably had limited success in holding the State and its agents accountable for acts of torture, extra-judicial killing and forced disappearances in India.

Having examined the protections offered to the citizens of India it is clear that, at least on paper, there are effective mechanisms to prevent and prosecute acts of torture, extra-judicial killings and forced disappearances. Why, then, do these gross human rights violations continue to be perpetrated by the police and armed and security forces across India today?

One root cause of the prevalence of violence against citizens is the State’s conception of its role as arbiter of fundamental rights. While the Constitution envisages a range of rights inhering in each and every citizen, successive Indian governments have chosen to perceive constitutional rights as mere privileges bestowed on citizens in times of peace and civil obedience that may be hijacked, ignored or violated in times of civil unrest, State insecurity or war. This fundamental failure to recognise the inherent constitutional rights of its citizens has enabled the State to opt out of its post-Independence liberal democratic tradition when it sees fit.

Contributing to the State’s conception of rights as privileges are the prevailing colonial structures on which the Constitution rests. Despite the numerous protections against human rights abuses in India, the State’s forces and many laws continue to display the hallmarks of the colonial pre-occupation with wholesale repression of those perceived as opponents of the State. The Indian Police Act of 1861 and the Indian Penal Code of 1860 remain the basic

in/Publications/reportKBSaxena.pdf66 PHRA, section 18

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foundations for addressing crime and order today. This history of repression goes a long way to explaining why widespread abuses continue to occur in practice, despite the modern Indian State’s strong theoretical commitment to fundamental rights.

At Independence and the introduction of the Constitution in 1950, the new rulers did not reform the legal and police structures that were introduced under British rule. This has created a paradoxical situation in which individuals are “citizens” under the liberal democratic Constitution, but “subjects” in the context of law and order.

The Indian Police Force: A colonial legacy

The Indian Police Force was established by the 1861 Police Act, enacted in the wake of the First War of Independence in 1857.67 The aim of the British was clear: the Indian Police Force was modelled on the colonial Irish constabulary, and as Sir Hugh Rose – the Commander-in-Chief of the Indian army at the time – observed: “No system ever worked better for the suppression of political agitation or agrarian disorder than the Irish constabulary”.68

Common to both the Irish and Indian police forces was the regular use of violence and force rather than a disciplined system of surveillance and coercion.69 From now on, it was the police, rather than the army, that would be responsible for the suppression of civil dissent.

The prime concern of the British was to uphold their rule over the country, and they relied heavily on the police force to ensure their absolute authority over their colonial subjects. The emphasis of the police force under the 1861 Act was historically focused on paramilitary training, with considerably less emphasis on detective activity.70 Under British colonial rule in India, torture and violence were frequently employed against the indigenous population to suppress civil uprisings and root out alleged criminality in the name of “law and order”. In their efforts to maintain control over the country, the British implicitly endorsed the entrenched upper-caste brutality against lower-caste populations. These politics of power remains evident in India today.71 The core aim of the British when establishing the police and formulating criminal laws was the subjugation of the Indian people;72 the colonial police force has been described as the most effective instrument of State repression.73

Structure of the police force

Under the British administration, the police force was structured in such a way that senior positions were given to the British and lower-ranking roles were assigned to Indians.74 Section

67 The First War of Independence was a revolt of Indian soldiers against their colonial commanders. It later developed into a rebellion against British rule. It was brutally suppressed and the British were prompted to set up a nation-wide police force to enforce colonial rule

68 ‘Policing the Police: A review’ by Vikram Diesh. Available at: www.iicdelhi.nic.in/program/program_detail.asp?ProgId=869&CatgId=1

69 Spaces of Colonialism: Delhi's Urban Governmentalities by Stephen Legg, New York: Blackwell Publishers 2007, page 85

70 Social disorganisation and contemporary social crisis, A. Kumar, New Delhi: Anmol Publications 2000, page 49 71 See below for a discussion of caste-based violence 72 Police Mission: Challenges and Responses by Dilip K. Das and Arvind Verma, London: 200373 Imperial Power and Popular Politics: Class, Resistance and the State in India, c. 1850-1950 by Rajnarayan

Chandavarkar, New York: Cambridge University Press 1998, page 18474 IPA, section 7


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3 of the IPA makes the posting and sacking of police commissioners subject entirely to state governments, and the police force was designed to be directly accountable to the executive at the state and district levels .75

Section 23 of the 1861 Act requires a police officer “promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority”.76

P. J. Alexander points out the consequences of this politicisation:

“[Section 23] allows civil and political executive authorities to control the police. Thus, third degree methods prevail, since the orders to use them on suspects in police custody come from such a ‘competent authority’. No wonder that most custodial deaths are due to pressure on the police to detect crime from senior officers and the ruling party”.77

Under British rule, the police answered to local District Magistrates, who represented the administration’s interests at the district level. At its inception, the presence of the police force across the country varied greatly. It was initially organised along provincial lines, with higher numbers of police in urban areas and fewer in rural regions; in some areas, there were no policemen at all. This organisational weakness was compounded by low wages, which made it “impossible to obtain efficient men in any way suited to make policemen”, and by poor equipment.78 In the 1880s, for example, the police force of Bombay had just forty swords among them.79

As the movement for independence gathered momentum, the British strengthened the police force in both numbers and equipment in attempts to suppress the nationalist movement: “The strength of the police as an instrument of coercive imperial power grew as the days of empire waned”.80

The British administration relied heavily on the police force to maintain its rule and increased the size of the force from approximately 215,000 in 1932 to over 300,000 in 1943; the percentage of armed police grew from 15 per cent of all forces in 1932 to 45 per cent in 1943.81

Under British rule, the police were perceived as a partisan force, enforcing the interests of the rulers against the masses. The relationship between the police and the public was characterised as one of mutual suspicion, with the public viewing the police with fear and loathing and the police viewing the public as potential criminals and dissidents.

75 IPA, section 376 IPA, section 2377 Policing India in the New Millennium by P J Alexander, New Delhi: Allied Publishers 2002 at page 1878 Annual Report on the Police in the Town and Island of Bombay for 1884, (Bombay, 1885), pages 13-15 in Imperial

Power and Popular Politics: Class, Resistance and the State in India, c. 1850-1950 by Rajnarayan Chandavarkar, New York: Cambridge University Press 1998 at page 156

79 Ibid., page 156 80 ‘Police Power and the Demise of British Rule in India, 1930-47’ by David Arnold, in Policing and Decolonisation:

Politics, Nationalism and the Police 1917-65, Eds. David Anderson & David Killingray, Manchester: Manchester University Press 1992 at pages 56-57 cited in ‘Colonial Continuities: Human Rights, Terrorism and Security Laws in India’ by Anil Kalhan, Gerald P Conroy, Mamta Kaushal, Sam Scott Miller and Jed S Rakoff, Columbia Journal of Asian Law, Volume 20(1) (2006) pp. 93-234 , page 111

81 Ibid., page 109

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The Indian Police Force: Post-Independence

The modern Indian State was the product of a freedom struggle that envisaged a nation freed from colonial oppression and a better life for all Indian citizens. While India adopted a liberal democratic Constitution, it retained the colonial administrative, police and judicial structures of the British regime. As K. S. Subramanian, a former Director General of Police and a panel member at the Independent People’s Tribunal, observes, this has had important implications for the methods and tactics adopted by the central and state governments to deal with situations of civil unrest.82 The ruling class stepped easily into the positions of authority vacated by the British and made no attempt to reform the administrative, political and judicial structures. K. G. Kannabiran describes the attitude taken by the courts at Independence to the prevailing power structure:

“The courts never saw the inauguration of the Constitution as a severance. They saw the emergence of the Constitution as a continuance from where the British left off… the court was at pains to point out that at midnight of 26 January 1950, no new institutions arose, that old institutions were continued with a slight renaming, and that power was transferred by the colonial rulers to the Indian representatives of the people by the Indian Independence Act”.83

Growth of the police force

The strength of the armed police continued to grow after Independence and constituted 60 per cent of all forces by the late 1960s.84 As well as state police forces, the Government of India established central police forces for specialised work. The Central Government maintains several central paramilitary forces numbering more than 685,000 individuals.85 The Central Paramilitary Forces (CPFs) are recruited and trained by the Ministry of Home Affairs. They can be deployed anywhere in the country at short notice for law and order management and to help their state-level police colleagues maintain order where needed. Today, India has one of the largest police forces in the world, with approximately 2 to 3 million police at the state and central levels.86 In areas of civil unrest, the Central Government responds by sending more police, army and security forces to contain rebellion. Between 2001 and 2007, the budget of the Central Police Force doubled from 94 billion rupees to 189 billion rupees.87

Despite its massive growth in terms of manpower, weapons and equipment, the Indian Police Force remains structured in the same way as it was in 1861. Notwithstanding a number of

82 Political Violence and the Police in India, by K. S. Subramanian, New Delhi: Sage Publications 200783 The Wages of Impunity: Power, justice and human rights, by K. G. Kannabiran, New Delhi: Orient Longman 2004,

page 6084 ‘Democracy and Social Defence’, Seminar, October 1977, T. Anantha Chari, at pages 26 and 29 (quoting Report of

the Delhi Police Commission, 1966-68) cited in ‘Colonial Continuities: Human Rights, Terrorism and Security Laws in India’ by Anil Kalhan, Gerald P Conroy, Mamta Kaushal, Sam Scott Miller and Jed S Rakoff, Columbia Journal of Asian Law, Volume 20(1) (2006) pp. 93-234, page 112

85 Annual Report 2004-2005, Ministry of Home Affairs, page 11286 Supra, footnote 387 Statement of Indian Social Action Forum (INSAF) given at the “Asia-Europe Caucus for Democracy and Human

Rights – Asserting Democracy, Reclaiming Human Rights” meeting held on 6-8 June 2008 in Manila, Philippines. Available at: http://www.europe-solidaire.org/spip.php?article10704


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commissions set up by the Indian Government to propose reforms for the Indian Police Force, little meaningful change has occurred.88

Structure and ethos of the police force

At Independence, the police were renamed the Indian Police Service. Despite this re-branding, the substance of the police as a “force” remained unaltered. Under the Seventh Schedule to the Constitution, the police force remains accountable to state governments, whose rules and regulations state police forces are required to follow. The Constitution empowers the central and state governments to enact criminal laws and the Central Government to legislate exclusively on matters of national security, preventive detention for the security of the State and the use of the military and central police forces to help state authorities maintain public order. State governments oversee public order and the police.

The police are highly politicised. The director of the State police is appointed by the Chief Minister, and police officers at all levels are subject to extensive political pressure. Politicians often pressure the police to protect their families and allies and to target their political opponents in their investigations. Police officers who refuse to comply with these political pressures are often punished through punitive transfers to non-desirable duty stations, disciplinary proceedings and even false criminal charges.

The years after Independence saw the enactment of new legislation in several states in India. The Bombay Police Act, which also governs the police forces in Maharashtra and Gujarat, was introduced in 1951 and was followed by the Kerala Police Act of 1960, the Karnataka Police Act of 1963 and the Delhi Police Act of 1978. These post-Independence laws closely emulate the 1861 model. As a result, they have not led to significant improvement in the performance or behaviour of the police force.

Speaking at the Independent People’s Tribunal, panel member K. S. Subramanian describes the rationale behind the lack of meaningful police reform since Independence:

“The district administration has been trained mainly to maintain order at any cost, and that is what they have been doing ever since Independence. The Indian elite has never bothered to reform the structure because it is in their favour”.89

The structure and ethos of the police force, with its emphasis on suppressing opposition, serves the interests of the ruling elite to great effect. The police remain the handmaiden of the nation’s rulers and are accountable only to them through their state administrators. While the Constitution envisages a nation of citizens who are the bearers of fundamental rights, the police structure remains inherently “anti-people”. It is common for police officers to harass innocent individuals for monetary or other gains and to use violent means to deal with alleged criminality.90 As K. S. Subramanian notes:

88 See for example: National Police Commission 1979-1981, Ribeiro Committee on Police Reforms 1998, Padmanabhaiah Committee on Police Reforms 2000

89 Full deposition of K. S. Subramanian available at page 39990 This is discussed in more detail in Chapter 3

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“The basic job of the police is to collect intelligence against people and to maintain order, with or without law".91

Unlike the police in many other democratic countries, who are characterised as “community-serving” and whose job is to protect the public, the police in post-Independence India remains very much a police “force”. The Indian police force is dominated by a colonial mindset that treats the public as subjects to be controlled rather than citizens to be served. As K. S. Subramanian notes in his book about political violence in India:

“The Indian police system essentially reflects a process of continuity in the working of the police since the colonial period, with its emphasis on control, coercion and surveillance rather than crime prevention”.92

In 1977 the National Police Commission defined the policing of a democratic society as:

1. upholding the dignity of the individual by safeguarding his legal and constitutional rights;

2. safeguarding the fabric of society and the unity and integrity of the nation.93

In practice, however, the philosophy, value system and character of India’s police force remain militaristic and oppressive. The police in India prioritise the needs of politicians and powerful individuals over the demands of the rule of law and the protection of citizens. Corruption is prevalent at all levels of the police force, ranging from low-level bribes and extortion of witnesses, defendants and other individuals to more significant corruption by senior officers. One NGO has found that the Indian public views the police force as the most corrupt institution in the country.94

K. G. Kannabiran offers a depressing view of Indian society’s acceptance of prevailing power structures:

“In our society, where respect for authority has been internalised, arbitrary power is perceived as a valid exercise of authority, so abuses go unquestioned. Those who perceive the abuse do not wish to enter into confrontation. They make their peace by cajoling and appeasing authority. We seldom realise that the measure of freedom we enjoy is the extent conceded to political dissent, the poor and the oppressed”.95

Challenges facing the police

The police system has not been able to control crime, which has increased significantly during recent decades. The total cognisable crimes registered under the Indian Penal Code (IPC), for example, increased from 625,000 in 1951 to 5.5 million in 2003, including 3.78 million

91 Full deposition of K. S. Subramanian available at page 39992 Supra, footnote 82, page 7493 Supra, footnote 77, page 75594 Survey conducted by Transparency International cited in ‘Police Top Corrupt South Asia List’, BBC News, 17

December 2002. Available at: www.bbc.co.uk/2/hi/south_asia2584735.htm 95 Supra, footnote 83, page 260


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registered under local and special laws.96 Meanwhile, there has also been a steep decline in conviction rates since the 1970s. In 1971, the conviction rate of IPC offences was 62 per cent; by 2003, the rate was reduced to approximately 40 per cent.97 Justice is also delayed. Indian courts remain clogged with a huge backlog of cases. According to the 61st report of the Parliamentary Standing Committee on Home Affairs, 25 million cases are pending trial in courts across India.98

The police force is under constant pressure to produce results from politicians, the media and the public. When crime levels rise or a particularly serious crime is committed, the public typically blames the police. One commentator points out that this attitude is reinforced by the manner in which the police force reacts to public criticism: tending to quote crime statistics or blame inadequacies of manpower and equipment.99 There is some legitimacy to the police response – as in colonial times the police force continues to be under-funded and poorly trained.

Climate of mutual suspicionThe reputation of the police as corrupt, politically motivated and ineffective in tackling crime has led to the police being perceived as lacking legitimacy – a problem since colonial times. The British Government-appointed Indian Police Commission of 1902-3 found that:

“The police force is far from efficient, it is defective in training and organisation, it is inadequately supervised, it is generally regarded as corrupt and oppressive and it has utterly failed to secure the confidence and cordial cooperation of the people”.100

Despite Independence, the reputation of the police remains at pre-1947 levels. As Justice A. N. Mulla damningly stated:

“I say it with all sense of responsibility that there is not a single lawless group in the whole country whose record of crime is anywhere near the record of that organised unit which is known as the Indian Police Force”.101

The strong mutual suspicion between the police and the public remains today. The police in India are widely viewed by the public as untrustworthy, corrupt, partisan and ready to favour the politically and economically powerful over the poor and dispossessed. In turn, the police remaining committed to a colonial pre-occupation with maintenance of order and security:

“the police mindset is steeped in the colonial era when the police were supposed to treat every Indian as an enemy of the state".102

As Arvind Verma, a former IPS officer observed:

“The hostility that police personnel encounter from the citizens further sponsors a feeling of

96 ‘Police Accountability in India: Policing Contaminated by Politics’ by G. P. Joshi. Available at: www.hrsolidarity.net/mainfile.php/2005vol15no05/2448

97 Ibid.

98 Ibid. 99 Supra, footnote 96

100 Ibid. 101 ‘Violations of the Universal Declaration on Human Rights in the Criminal Justice System’ by Jay Parikh. Available

at: www.legalservicesindia.com/articles/bar.htm102 ‘Custodial Violence and Measures to Curb’ by K. Ravindran in The PRP Journal of Human Rights January-March

(2002): 7-8, page 7

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us versus them. This attitude develops into a culture of silence, where police officers are reluctant to turn against their own colleagues”.103

Police impunity

Under international law, nation states have an obligation to bring perpetrators of serious criminal offenses to justice.104 Despite this, Indian law contains a provision that enables the Government to provide impunity for police officers who commit abuses. Under Section 197 of the CrPC, a public servant cannot be prosecuted without the sanction of the appropriate authorities for acts done “while acting or purporting to act in the discharge of his official duties”. The purpose of this provision is to ensure that frivolous and vexatious complaints are not filed against police officers to demoralise them and dissuade them from performing their duties. However, this provision of the law has been abused to provide protection to police officers even in serious cases of misconduct. This occurs because the nexus between politicians, bureaucrats and police officers often deliberately delays or denies the Government sanctions that are required to bring prosecutions.105

Police officers are unaccountable for their misuse of power, partisan behavior and corrupt practices, because the Indian police lack an effective system of accountability.106 The central and state governments often overlook complaints against the police and security forces on the grounds that remedial action in such cases would weaken the police’s resolve to fight criminality and civil unrest with force. It is a regrettable irony that the State authorities and police forces – whose responsibility is to protect citizens from violations of their constitutional rights – themselves violate the rights of Indian citizens.

Modernisation of the police force

The Indian Government has recognised the need for police forces across the country to be modernised. At present, the approach of the Government is to focus on increasing resources for the police, particularly in areas of special concern, such as the Northeast, Kashmir and Naxalite-affected states. Under the Modernisation of State Police Forces (MPF) scheme, the Government is providing assistance for modern equipment, weaponry, mobility, communications, training, police buildings and housing, forensic science-related facilities and other essential infrastructure. Between 2002 and 2007, total Central Government assistance to Naxal-affected states for modernisation of the police was 2,140.70 crore rupees, with a further provision for 437.53 crore rupees for 2007-08.107 In Kashmir, the Central Government has donated 425.04

103 ‘A uniform betrayal’ by Arvind Verma, India Together, June 2004. Available at: www.indiatogether.org/2004/jun/gov-betray.htm

104 “States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant". United Nations Human Rights Committee, General Comment 31, paragraph 18

105 The recommendation of the National Police Commission (1979-1981) that protection available to police officers under section 197 of the CrPC be withdrawn has not been accepted by the Government.

106 Supra, footnote 103 107 Supra, footnote 9, page 24


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crore rupees to the state government during the last five years under the MPF scheme.108 In the Northeast, the Central Government has allocated159.30 crore rupees to the states in the 2007-08 fiscal year, with a further 144.30 crore released at the end of February 2008.109

Draconian legislation: A colonial legacy

“For the British Raj, crime and politics were inseparable: defiance of State authority was a serious crime and a prelude to rebellion; political resistance was a crime or a likely occasion for a crime”.110

This section examines the Indian Penal Code of 1860 (IPC) and the Code of Criminal Procedure of 1872 (CrPC),111 which continue to define criminal offences, appropriate punishments and the procedure for prosecution and investigation of alleged criminality. We then turn to repressive laws enacted by the British to criminalise activities perceived to threaten the State or its interests, before turning to emergency and security legislation enacted both prior to and after Independence. This section culminates with a short analysis of anti-terrorism legislation in India. It also illustrates the way in which, like the police force, the colonial mindset of using oppression against its perceived opponents is deeply ingrained in the State’s consciousness and continues to threaten the very existence of Indian citizens’ fundamental constitutional rights.

The Indian Penal Code (1860)

The British administration used the legal system as a means to suppress opposition to colonial rule. The Indian Penal Code (1860) and the Code of Criminal Procedure (1872) were drafted in the 1830s and 1840s by the first Law Commission under the Presidency of Lord Macaulay. The laws in these Acts defined every offence, specified punishments and set out the procedure for investigation by the police and the courts. The Indian Penal Code and the Code of Criminal Procedure remain in force today.

K. S. Subramanian observed at the Independent People’s Tribunal that:

“The bureaucratic structure at the district level and below was created by the British and was left behind to be used by the Indian elite. This bureaucratic structure is composed mainly of the police, and this police structure is supported by the legal system, i.e., the Indian Penal Code, the Indian Evidence Act and the Police Act. These are not people-friendly legislations and are meant to oppress and suppress the people”.112

The aim of the Indian Penal Code was to criminalise activities considered harmful to the State or its interests. This is emphasised by the structure of the Indian Penal Code, which prioritises offences against the State and offences against public order over ordinary crimes. The Penal Code has a full chapter on “Offences Against the State”. It is interesting to note the distinction made by the first Law Commission between “ordinary” crimes and “State” crimes – which were deemed particularly “heinous and formidable” and warranted extraordinary punitive measures.

108 Supra, footnote 9, page 10109 Supra, footnote 9, page 19110 Supra, footnote 82, page 62111 Last amended in 1973112 Full deposition of K. S. Subramanian available at page 399

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As K. S. Subramanian notes:

“The legal provisions are also basically repressive. For example, the Indian Penal Code has 511 sections, out of which the first 299 sections are related to offences against the State, and criminal offences are mentioned only from Chapter 16 onwards. Similarly, the 1973 Code of Criminal Procedure basically deals with offences against public order and the maintenance of peace and tranquility”.113

The British introduced a number of new laws that criminalised offences against the State and offences against the State’s interests. Under the British, expressions of anti-colonial dissent were quite often considered “crimes” under these laws. As the movement for Independence gathered strength, the British increasingly employed legal provisions to curb and intimidate the freedom movement’s leaders. Examples of such legislation include the Prevention of Seditious Meetings Act (1911) and the Indian Press Act (1910), which curtailed freedom of the press through the criminalisation of “anti-colonial” publications.

When dealing with political protest, most of these laws emphasise the aspect of “public order”. As Akshayakumar Ramanlal Desai notes, this has had a seriously adverse impact on political dissent in India.114 In Section 141 of the Indian Penal Code, under the heading of “Offences against Public Tranquility” for example, a group of five or more people is considered an “unlawful assembly” where the aim of the assembly, among others, is “to resist the execution of any law, or of any legal process”. Therefore, a protest against an unfair law can be deemed an offence against public tranquility and a problem of “law and order”.115 A further example of the State-centric model of the IPC is Section 124, which makes the crime of sedition punishable with life imprisonment.116

The British model of law and order gave the police wide-ranging powers which remain in force today. Section 34 of the Indian Police Act (1861), for example, authorises a policeman to arrest any person for:

“obstructing passengers; throwing dirt etc... on the street; slaughtering cattle and being found drunk or riotous, indecent exposure of person or nuisance by easing himself or by bathing or washing in any tank or reservoir not meant for the purpose”.117

Security laws to suppress civil dissent

Draconian legislation has been employed to combat civil unrest and preserve the power of those in rule since the colonial era. The British introduced the first preventive detention law in

113 Full deposition of K. S. Subramanian available at page 399114 Expanding Governmental Lawlessness and Organized Struggles: Violation of Democratic Rights of the Minorities,

Women, Slum Dwellers, Press and Some Other Violations by Akshayakumar Ramanlal Desai, Bombay: Popular Prakashan 1991

115 Ibid. 116 IPC, section 124: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise,

brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”.

117 IPA, section 34


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1793 to detain any Indian subject considered a threat to the British occupation. This was followed by the Bengal State Prisoner’s Regulations, introduced by the East India Company in the early nineteenth century to put down political violence. This law provided for the indefinite detention of the State’s perceived opponents. The twentieth century marked the birth of the independence movement in India, and a number of laws were introduced to combat threats to British rule in the early part of the century. These included the Defence of India Acts of 1915 and 1939; the Anarchical and Revolutionary Crimes Act of 1919 (commonly known as the Rowlatt Act); the Explosive Substances Act (1908) and the Prevention of Seditious Meetings Act (1911).

As Venkat Iyer notes:

“The British… made liberal provision for emergency powers, partly to deal with the various social and political tensions which were endemic in Indian society at the time, and partly to establish and consolidate their own hold over the country”.118

The Defence of India Acts, which were introduced during the First and Second World Wars, adopted Britain’s war-time “emergency code” into Indian law. The 1915 Act gave power to the police and the armed forces to detain individuals if they had “reasonable grounds” to suspect a person’s behaviour as being “prejudicial to public safety”. With the end of the First World War, the State retained these broad powers until 1922 through the Rowlatt Act, which gave the Government authority to combat undefined “anarchical and revolutionary movements” through the use of preventive detention. The preventive detention provision was extended in the 1939 version of the Defence of India Act to authorise the detention of anyone whose conduct was likely to be:

“prejudicial to the defence of British India, the public safety, the maintenance of public order… (and) the maintenance of peaceful conditions in tribal areas..".119

As the demands for independence grew, the British administration reacted by enacting more draconian laws. In an effort to suppress the Quit India movement in the 1940s, for example, the British declared a state of emergency all over the country and introduced the Armed Forces (Special Powers) Ordinance in 1942. This colonial ordinance conferred broad “special powers” on the armed forces to arrest and use force against civilians on the mere suspicion of dissident activity. Ironically, this strategy of repression has been adopted by successive Indian governments after Independence, despite being antithetical to the liberal democratic constitutional tradition of independent India.

The very powers that were used to suppress the movement for Independence have been reincarnated in the form of the Armed Forces (Special Powers) Act (1958), which is in force, in various guises, across the Northeast and Kashmir today.

Maintaining the authority of the State post-IndependenceConstitutional and criminal law powers

At Independence, all laws that had been passed by the colonial rulers were retained, including those that had been enacted to suppress the movement for Independence. In practice, therefore,

118 ‘States of Emergency: The Indian Experience’, 67 (2000) by Venkat Iyer at page 70119 Ibid., pages 73-74

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the democratic vision of the Constitution retained all the armoury of state power and did not shift to a rights-based legal structure to support the fundamental rights of citizens under the Constitution. This is a root cause of the continuing brutality of the State and its police and armed forces against its citizens. K. G. Kannabiran points out that, following Independence, the Indian elite adopted the practices of the former British rulers:

"Governance… was a continuous process, and the principles of governance set up by the British in India were seen as appropriate and relevant for free India. The advent of Independence was just an event which did not disturb continuity; it did not announce a change in the existing social order".120

The Indian criminal justice system retains a number of draconian powers despite the Constitutional protections introduced in 1950. In fact, a number of them are specifically supported in the Constitution itself. Preventive detention, for example, which is prescribed by Section 151 of the CrPC, allows an officer to arrest a person without a warrant if it appears that he or she is designing to commit a cognisable offence.121 Article 22(3) excludes those detained under preventive detention legislation from the right to be informed of the grounds of arrest“as soon as may be”, the right to consult and be defended by a legal practitioner of their choice and to be presented before a magistrate within 24 hours – all of which are specific exceptions to the constitutional guarantees contained in Article 22(1) and (2) of the Constitution.122

Further repressive criminal justice provisions are set out in Section 41 of the CrPC and allow the police broad powers to arrest individuals without warrant in a range of broadly defined situations, including the arrest of a person “against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists”.123

Furthermore, Sections 46(2) and (3) of the CrPC authorise the police to use unspecified and unlimited force to arrest individuals and even to cause the death of a person if that person is accused of an offence punishable with death or life imprisonment.124

Emergency and Security Legislation

After Independence, the new rulers also followed the patterns established by the British in their use of emergency and security laws. The Indian Government enacted the Preventive Detention Act of 1950, which authorised detention for up to 12 months by both the central and state governments, if necessary to prevent an individual from acting in a manner prejudicial to the defense or security of India.125 The Madras Suppression of Disturbances Act (1948), which authorised the use of force by the army to put down the peasant struggle of Telangana, was later adopted by the State Government of Andhra Pradesh into the Andhra Pradesh Suppression of Disturbances Act (1967) to combat the Naxalite movement. It enabled the State Government

120 Supra, footnote 83, page 245121 CrPC, section 151122 Constitution of India 1950, Part III, Articles 22 (1) and (2) provide that a person who is arrested must be informed as

soon as may be about the grounds of his arrest123 CrPC, section 41124 CrPC, sections 46(2) and 46(3)125 India is one of very few countries in the world where preventive detention enjoys constitutional validity even during

peacetime


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to notify tribal areas as “disturbed areas”, giving the police enormous powers, including that of shoot to kill.

In later years, the Central Government enacted the Disturbed Areas (Special Courts) Act (1976), which allows for an area to be declared disturbed when:

“a state government is satisfied that (i) there was, or (ii) there is, in any area within a state extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may... declare such area to be a disturbed area".

The National Security Act (NSA) introduced in 1980, extended the powers given to the police and armed forces in areas that are not declared disturbed. The Act provides the police and the armed forces with wide powers to preventively detain people suspected of activities “prejudicial to the defense of India”, the “relations of India with foreign powers” or the “security of India” for up to one year.

The attitude of successive Indian governments to the constitutional rights of it citizens is illustrated by the ways in which they have behaved during times of war and civil unrest. During and after the Indo-China War of 1962, the Government adopted the Defence of India Act (1963), which suspended fundamental rights, including the rights to freedom of assembly, free speech and expression, life and personal liberty, and protection from arbitrary arrest and detention (Articles 19, 21 and 22). Similarly, declaring a state of emergency, Indira Gandhi passed the Maintenance of Internal Security Act (MISA) in 1972 which suspended the fundamental rights of Indian citizens in order to target and detain her political opponents.

As these examples show, the State has repeatedly failed to recognise the fundamental constitutional rights of each individual and has treated the Constitution as a document that endows rights in times of peace and prosperity but does not apply in times of “emergency” and external aggression. At the root of this attitude to constitutional rights is rulers’ distrust of citizens, a notion that citizens are not always “deserving” of fundamental rights, and the belief that it is their prerogative to decide when and where fundamental rights apply.

These colonial legacies are serious obstacles to the realisation of the fundamental rights and directive principles for Indian citizens. Concerned to maintain the authority of the State over its people at all costs, they undermine the democratic nature of the Constitution. The characterisation of the police as enforcers of the current rulers’ reign, their protection from prosecution126 and the strategy of repression through law, adopted by successive Indian governments after Independence, contribute significantly to the prevalence of torture, extra-judicial killing and forced disappearances in India today.

Increasing militarisation

Since Independence, the Indian State has demonstrated a preoccupation with strengthening the prevailing colonial models of repression: the police force and domestic legislation. In addition

126 Without express consent of the state governments (section 197 CrPC)

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to enacting emergency and security legislation, it has increased the strength of the central police force and introduced a number of anti-terrorism laws to deal with perceived threats to its internal and external security.

The Central Government administers seven central police comprising of 474 battalions, which are deployed to “maintain public order”.127 These are the Assam Rifles (AR) and the Border Security Force (BSF) that operate in the Northeast and Kashmir; the Central Industrial Security Force (CISF) that protects airports and important installations across the country; the Central Reserve Police Force (CRPF) that operates in a number of communally sensitive areas across the country; the Indo-Tibetan Border Police (ITBP) on the Indo-China border; the National Security Guard (NSG), which is a specialist anti-hijacking and anti-terrorist force; and the Sashastra Seema Bal (SSB) on the Indo-Nepal and Indo-Bhutan borders. The central forces also play a major role in Naxal-affected states. While the AR and the CRPF were set up by the British in 1835 and 1939 respectively,128 the remaining five were constituted after Independence. The ITBP and SSB were set up in 1963 in the wake of India-China conflict, the BSF in 1965, the CISF in 1969, and most recently, the NSG in 1984, indicating the Indian State’s growing commitment to the use of force.

Anti-terrorism legislation

K. G. Kannabiran describes how creeping modification of Indian law has gradually restricted the number and quality of rights afforded to Indian citizens:

“(The terms) “security of the State”, “friendly relations with other states” and “the public interest” have been introduced time and again into statutes to exclude the entire body of citizens from all or any of the rights secured by them. These terms have been invoked to confer on governmental exercise of power a legitimacy which is beyond scrutiny. In effect, they pre-empt social and political accountability”.129

The Indian Government has introduced a range of laws to combat civil unrest and to fight terrorism. Examples of these repressive anti-terrorism laws include: the Armed Forces Special Powers Act (AFSPA) of 1958 and its extension to Kashmir (AF(J&K)SPA) in 1990; theTerrorist and Disruptive Activities Act (TADA) of 1985; the Prevention of Terrorism Act (POTA) of 2002 and the Unlawful Activities (Prevention) Amendment Act (UAPA) of 2004. These successive laws have strengthened the power of the State over the individual and continue to undermine the fundamental rights of Indian citizens. They give extra powers to the police and armed and security forces and often deviate from accepted norms of criminal justice. Two hallmarks of anti-terrorist legislation are: the allowance for confessions obtained in police custody and a presumption against attaining bail.

The sweeping powers given to the police and the armed and security forces under AFSPA, TADA, POTA and UAPA were predominantly used to enable pervasive use of preventive detention and a variety of abuses by the police, including extortion and torture, rather than to prosecute and punish actual terrorists. These laws contained provisions allowing for the

127 Supra, footnote 9, page 79128 The CRPF was initially constituted as the Crown Representative Police but was rechristened the CRPF after

Independence. The Assam Rifles was known as ‘Cachar Levy’ under the British129 Supra, footnote 83, page 262


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admissibility of confessions given by suspects to police officers (thereby implicitly sanctioning torture in police custody) and detention for up to one year without charge. Widespread opposition from lawyers, the judiciary and civil society actors led to the eventual repeal of TADA and POTA. Despite the repeal of these laws, many citizens continue to be detained under their provisions.

Despite the numerous domestic legal provisions prohibiting torture, extra-judicial killings and forced disappearances, the actions of the police and military forces are often sanctioned by law and are directly at odds with the legislation that seeks to protect the abuse of detainees and civilians. Commentators have observed that the existence of anti-terrorism laws:

“Stems from real and perceived problems concerning the effectiveness of the regular criminal justice system, which create intense pressure to take particular offences outside of that system”.130

The Armed Forces Special Powers Act of 1958 (AFSPA), for example, gives military forces wide powers of arrest, the right to shoot to kill and the right to occupy or destroy property in counter-insurgency operations. State officials justify the powers given to the military and security forces on the basis that the Act is only in force in areas where national security is at risk due to armed combatants and terrorists.

AFSPA and many other national security laws are antithetical to India’s constitutional tradition. The rule of law is steadily eroded when legal provisions such as those contained in AFSPA, TADA, POTA and UAPA are enacted to opt out of fundamental rights standards. This is noted by Babloo Loitongbam, the Executive Director of Human Rights Alert in the northeastern state of Manipur, who attended the Independent People’s Tribunal to give his expert opinion. He described the spread of security and anti-terrorism laws enacted to combat civil strife across the country:

“During the 1970s, it was Tripura and Manipur. In the 1980s it was the Assam valley. Then we saw the whole of the Northeast burning during the 1990s. And this exception [to the law forbidding torture] is increasing. The whole Northeast was one exception, the Punjab became another in 1983 – where a similar act to the AFSPA, involving the police rather than the army, was promulgated but never used. Jammu & Kashmir became another exception when the problems started there in the 1990s. And, we are now facing the situation where 21 out of 28 states in this country are facing some sort of armed resistance”.131

As Babloo Loitongbam illustrates, the Government attempts to justify its decision to opt out of the rule of law and bring the citizens of the Northeast under the purview of AFSPA in the name of “fighting terrorism”. In this way, the entire population of the Northeast and other "disturbed areas" are characterised in the public consciousness as "anti-nationals", “terrorists” and "secessionists" to whom constitutional rights do not apply:

“There is… a definition that includes those who want to secede from this country, and this is the ideology that has been used: Because they want a future of their own outside of this union,

130 Supra, footnote 58, page 109131 Full testimony of Babloo Loitongbam available at page 370

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they are worth killing. That was the logic that was used against the Nagas in the 1950s, the Mizos in the 1960s, against the Tripurese and the Manipurese in the 1970s, Punjabis in the 1980s and the Kashmiris in the 1990s, and now everywhere. This ideology persists, even amongst the liberal thinkers: that it is okay to torture, rape and kill people who want to be out of this country, and that in these circumstances it is justified to use torture".132

As commentators have noted, the administration of anti-terrorism laws in India:

“has varied widely from state to state, facilitating arbitrary and selective enforcement against members of Dalit, other lower caste, tribal and religious minority communities; violations of protected speech and associational activities, prosecution of ordinary crimes as terrorism-related offences and severe police misconduct and abuse, including torture”.133

This section examines the anti-terrorism laws that have been used in India at various times since Independence. Victims and witnesses at the Independent People’s Tribunal testified to the ways in which these laws have legitimised torture and extra-judicial killings of people across the country. Their experiences, set out in more detail later in this report, encompass a wide range of situations: the continued detention of Muslims under POTA in the state of Gujarat; the daily struggles of life under AFSPA in Manipur and Kashmir; the use of TADA in the Punjab during the insurgency of the 1980s and 1990s; and the UAPA and CSPSA used to persecute those perceived as opponents of the State in Naxalite-affected areas.

Armed Forces Special Powers Act (AFSPA) of 1958

AFSPA was first passed in 1958 in the area of the Northeast known as the “Seven Sisters”, comprising the states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. The Act aimed to give some “special powers” to security forces patrolling the states, which were declared by the Act to be “disturbed areas". AFSPA empowers the representative of the Central Government - the Governor - to declare undefined “disturbed areas”.134 The decision to declare an area “disturbed” is not subject to judicial review.

The decision to employ AFSPA grew out of a colonial legacy that places emphasis on the use of brute force to contain civil unrest, rather than addressing the social and economic grievances of the people. AFSPA gives security forces the authority to shoot suspected lawbreakers and those disturbing the peace, as well as to destroy buildings suspected of harbouring separatists or containing weapons. It grants the armed forces the authority to use lethal force against any person contravening laws or orders “prohibiting the assembly of five or more persons”.135

Members of the armed forces, even non-commissioned officers, are granted the right to shoot to kill, based on mere suspicion that it is necessary in order to “maintain the public order”. Heavy militarisation in the region under AFSPA since 1958 has led to innumerable instances of human rights violations committed against civilian populations. Beatings, torture, rape,

132 Full testimony of Babloo Loitongbam available at page 370133 Supra, footnote 58, page 109134 ‘Review of the AFSPA: Need for upholding primacy of the rule of law’, Asian Centre for Human Rights, 2005.

Available at: www.achrweb.org/Review/2005/54-05.htm135 AFSPA, section 4


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arbitrary arrests, extra-judicial killings and forced disappearances are perpetrated daily by the armed and security forces.

Like Section 197 of the CrPC, AFSPA provides immunity for military and security forces who commit killings and other serious human rights violations. Under AFSPA, no “prosecution, suit, or other legal proceeding shall be instituted against any person in respect of anything done or purported to be done in exercise of the powers of the act” without the approval of the Central Government.136 The approval of the Central Government is rarely given in practice. With soldiers shielded from prosecution and punishment, the military and security forces act with total impunity, unaccountable for the acts of sexual violence, murder and torture that are perpetrated daily across the Northeast. AFSPA was extended to Kashmir in 1990.

Challenging AFSPA

In 1980, the Human Rights Forum of Manipur filed a case in the Supreme Court challenging the constitutionality of AFSPA. Two years later, a petition was filed by the People’s Union for Democratic Rights and the Naga People’s Movement for Human Rights that also challenged this law. The Supreme Court did not address these cases until 1997, when a five-panel bench of the Supreme Court examined the constitutionality of the Act. The Supreme Court stated at the outset that it would not consider the conduct of the armed and paramilitary forces in the Northeast, but would only examine the legitimacy of the law. In refusing to look at the practical effects of AFSPA, the apex court was able to uphold the constitutionality of AFSPA. The court ruled that the powers given to the army were not arbitrary or unreasonable and concluded that they did not violate the contested provisions of the Indian Constitution. The Supreme Court failed to recognise that the constitutional rights of citizens, including the right to life under Article 21 of the Constitution, are effectively extinguished under the Act.

While the decision of the Supreme Court was deeply unsatisfactory in its failure to uphold the constitutional rights of citizens of the Northeast, the Court’s attitude was unsurprising. State and army officials deem the Act necessary to protect the states against internal disturbances, to uphold the “integrity of the nation”, to fight “terrorism and insurgency” and to protect “sensitive border areas”.137 This is an area that the courts are uncomfortable scrutinising. The courts are unwilling to strike down legislation introduced by the Government that is aimed at maintaining the security of the State. The Supreme Court did, however, recommend to the armed forces in the Northeast a list of “do’s and don’ts” aimed at curtailing incidents of violence.138 These, the Court held, are legally binding recommendations.139 In practice, however, they have had little effect in combating incidents of torture and extra-judicial killing by the armed and security forces in the Northeast.

136 AFSPA, section 6137 Naga People's Movement of Human Rights v. Union of India [1997] ICHRL 117; Presentation by Lt. General V.K.

Nayar, Former Governor of Manipur, at People’s Tribunal on The Armed Forces Special Powers Act, 1958. New Delhi, 19 February 2005; ‘Army opposes review of special powers, says Act is essential’, The Economic Times January 2005

138 Naga People's Movement of Human Rights v. Union of India [1997] ICHRL 117 139 Ibid.

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The Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985

TADA was introduced in 1985 as an anti-terrorism law to combat the insurgency in Punjab after the assassination of Indira Gandhi. A modified version of the Act was enacted in 1987. Both the 1985 and 1987 TADA Acts were introduced as temporary measures for two years, but the 1987 Act was extended every two years until it was allowed to lapse in 1995 after public outcry over its misuse.

TADA was an affront to the rule of law and marked a major rupture in Indian criminal jurisprudence. The Act derogated from accepted norms of criminal jurisprudence in allowing – for the first time – confessions of an accused in custody to be admissible as evidence.140 This paved the way for convictions of individuals solely on the basis of alleged confessions given in police custody. Provisions of the CrPC were not available under TADA unless specifically provided for, and the TADA courts curtailed many legal protections provided by other courts. For example, defense counsel was not permitted to see prosecution witnesses, who were kept behind screens while testifying in court, and confessions extracted under duress were admissible as evidence. Under TADA, bail was difficult to attain and the presumption was in favour of detention (even without charge) for up to 90 days.

TADA was later extended to Kashmir, Andhra Pradesh and Assam until its lapse in 1995. The Act was introduced to combat terrorism, yet it did not define “terrorism”. During the ten years it was in force, 75,000 persons were arrested under its provisions.141 The law gave special powers to the security forces in the use of force, arrest and detention and was extensively used in occupied Kashmir. Even after the Act’s lapse in 1995, cases initiated under TADA are still considered legally valid.

TADA remains one of the more draconian pieces of legislation to be passed by the Indian State, yet the Supreme Court validated its use in Kartar Singh v. State of Punjab. The Courtupheld the validity of section 15 of TADA, which made a confession statement recorded by a police officer admissible as evidence. Rather than striking down the legislation as unconstitutional, the Supreme Court stated that arguments relating to fundamental rights were not relevant. Instead, they chose to test the law only according to the Executive’s ability to enact the law. The Supreme Court did, however, introduce guidelines to prevent the abuse of police power under TADA. Unsurprisingly, the Executive did not implement them. Again we see the Supreme Court’s unwillingness to strike down anti-terror laws as unconstitutional as indicative of its general reluctance to scrutinise repressive measures introduced by the Executive to deal with “anti-national activity”. The Court stated that the possibility of abuse of law can never be an argument against the validity of legislation. The approach of the Supreme Court was predictably disappointing and demonstrated the complicity of the Supreme Court in the dilution of the rule of law in modern-day India.

140 TADA, section 15(1)

141 ‘Anti-terror Laws: Tools of State terror, A letter to the Chairpersons and other members of the International Commission of Jurists’ by Rohit Prajapati, PUCL, 27 February 2007. Available at: http://www.pucl.org/Topics/Law/2007/icj-submission.htm


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The Prevention of Terrorism Act (POTA) of 2002

The Prevention of Terrorist Activities Act (POTA) was enacted in India in 2002 following the 9/11 terrorist attacks in the United States. Existing criminal laws were deemed insufficiently inclusive or effective to deal with the growing threat of terrorism, and the Act aimed to strengthen the State’s ability to fight terrorism in India within a legal framework. POTA attempted to provide proper definitions of a “terrorist” and a “terrorist act”.

POTA defined terrorism as any violence “with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people".

Moreover, the law imposed a minimum five-year sentence on “[w]hoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act..".142

POTA diluted a number of established safeguards in criminal law. For example, the Act gave the police broad powers to detain a suspect for up to 180 days without a formal charge, far exceeding the limit under ordinary Indian criminal law.143 The bail provisions in the Act were also extremely strict, reducing the relative liberality of the Criminal Procedure Code and making it extremely difficult to attain bail.144 Under POTA, like TADA, confessions made before any officers of the rank of Superintendent or higher were admissible in court as evidence.145 Even though the provisions following this sub-section stated that no torture or force be used while extracting a confession and that the person being interrogated has the right to remain silent, the Act made no provision to ensure the punishment of abuses committed by the police while the person was in custody.146

POTA was repealed in 2004 after a period of sustained criticism over the abuses carried out by the armed forces against ordinary, innocent civilians under the Act’s provisions. A number of human rights organisations and NGOs argued that it violated most of the fundamental rights guaranteed by the Indian Constitution.147 Home Minister Shivraj Patil observed, before the repeal of POTA, that one of the main problems with the Act was that it required the person arrested to prove his innocence; in other words, the accused was considered guilty until proven innocent. The repeal of POTA, however, was not carried out retrospectively, and there are still thousands of citizens imprisoned under the Act’s draconian provisions.

Unlawful Activities (Prevention) Amendment Act (UAPA 2004) of 2004

The repeal of POTA in 2004 was heralded as a triumph for civil liberties in India. This proved short-lived, as the Indian Government swiftly introduced the UAPA Amendment Act of 2004

142 POTA, section 3(3)143 POTA, section 49(2)144 Section 40(5) made it impossible for anyone to get Anticipatory Bail as under Section 438 of the Criminal Procedure

Code and Section 40(6) made it compulsory for the Public Prosecutor to be heard before the court before granting bail to any person who has been arrested under suspicion of committing any offence under POTA

145 POTA, section 32(1)146 POTA made no provision to ensure the punishment of police officers who do torture accused persons147 ‘Missing Laws on the War on Terror’, Preeti Sharma, 9 December 2007, NDTV.com. Available at: www.ndtv.com/

debate/showdebate.asp?show=1&story_id=321&template=terrorstrikes&category=National&archive=yes

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(UAPA 2004), which incorporated many of the repealed provisions of POTA into an amended UAPA 1967, including the banning of a number of organisations deemed “unlawful” under POTA. To date, the Central Government has banned 32 groups as terrorist organisations under UAPA 2004.148

The UAPA 2004 did contain some improvements on POTA. For example, the period for which it is permissible to hold suspects without trial was reduced to 90 days under UAPA 2004 from 180 days under POTA. More significantly, the UAPA also returned the burden of proof to rest with the prosecution and provided that confessions made by an accused in custody were not admissible in court – two of POTA’s most repressive terms. Despite these improvements, the UAPA 2004 contains a number of anti-libertarian provisions and, like TADA, fails to define terrorism. The lack of a definition and a broad interpretation of the term leave the crimes of “abetment of terrorism” and “involvement in terrorism” wide open for interpretation. Its vague definition of “unlawful activity” is also disturbing:

“’unlawful activity’… means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise) (i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession… or (iii) which causes or is intended to cause disaffection against India…”149

Since the repeal of POTA and TADA, a number of state governments have sought to introduce their own security and anti-terrorism measures. Characterising organised crime as a form of terrorism, the State Government of Maharasthra introduced the Maharashtra Control of Organised Crime Act (MCOCA) in 1999, which contains a number of provisions formerly contained in TADA. Confessions made “voluntarily” in custody are admissible against an accused and his co-accused,150 and there is a presumption against bail.151 Since 2004, Gujarat has been trying to implement its own anti-terrorism law, the Gujarat Control of Organised Crimes Act, which is similar to MCOCA; Madhya Pradesh and Rajasthan have also made moves to enact such legislation.152 These Acts would give enormous powers to the police and present serious challenges to the rule of law. Another example of state legislation that seeks to derogate from accepted principles of criminal law jurisprudence is the Chhattisgarh Special Public Safety Act (CSPSA) of 2005.

Chhattisgarh Special Public Safety Act (CSPSA) of 2005 The CSPSA was introduced in 2006 to combat the threat of Naxalism. It goes even further than the UAPA 2004 in its definition of what is deemed an “unlawful activity”, stating that:

“any act (or communication verbally or in writing or by representation) by a person or organisation: I. Which poses a danger or fear thereof in relation to public order, peace or

148 Supra, footnote 9, page 26149 UAPA, section 5. According to this definition UAPA deems all Naxal groups to be unlawful and banned

organisations150 MCOCA, section 18151 MCOCA, section 21(4)(b)152 Uttar Pradesh had sought the consent of the Central Government to introduce its own anti-terror law (the Uttar Pradesh

Control of Organised Crime Act) but finally withdrew it in September 2008


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tranquility; or II. Which poses an obstacle to the maintenance of public order, or which has a tendency to pose such obstacle; or III. Which poses, or has a tendency to pose an obstacle to the administration of law or to institutions established by law or the administration of their personnel… VI. Which encourages the disobedience of the established law or the institutions set up by law, or which involves such disobedience…”153

This definition is broad enough to contain a number of different activities that were legal until the Act came into force; yet under the CSPSA, carrying out “unlawful activities” is now punishable with up to three years’ imprisonment. The use of the word “tendency” is a dangerous expansion of the fundamental principle of criminal law that criminal acts must be committed with intent. The CSPSA gives inordinate power to State authorities to oppress those it considers to be opponents of its policies.

Immunity laws

In addition to the protections from prosecution provided by anti-terrorism and security laws, the police and armed and security forces are given legal immunity from acts of torture and extra-judicial killing under provisions of the CrPC. A member of the armed forces cannot be prosecuted for acts carried out while on official duty without the prior permission of the Government as provided by Sections 45 and 132 of the CrPC. Section 197(2) has been invoked to prevent the trial of members of the armed forces alleged to be responsible for human rights abuses. This section provides that:

“no Court shall take cognisance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government”.

Immunity laws have a significant part to play in the prevalence of violence and death caused by members of the police, armed and security forces. As noted above, it is rare for the central or state governments to give sanction for the prosecution of a public servant.

As this chapter has shown, successive Indian governments have enacted anti-terrorism and security legislation to combat perceived threats to the nation’s security. The hallmarks of these laws, following the British model of repression, are an aim to suppress dissent and contrariness to fundamental principles of criminal jurisprudence. Despite India’s strong constitutional tradition since Independence, the State’s security laws disregard constitutional standards. Constitutional rights, for the Indian State, are not available to those whom it sees as opponents. This fact will be dealt with in more detail in the context of the witnesses’ and victims’ testimonies at the Independent People’s Tribunal, as they describe the terrors to which they have been subjected under these laws in Punjab in the 1980s and 1990s, as well as in Kashmir, Manipur and the Naxalite-affected areas of mainland India.

It is apparent that in areas where national security is under threat, civilians are unable to avail of their constitutional rights. The emphasis on maintenance of public order at all costs is constitutionally dangerous. There is little evidence to suggest that the Government of India

153 CSPSA, section 2(e)

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intends to address the root causes of discontent in the Northeast, in Kashmir and across mainland India. Instead, it uses its armies and police forces to forcefully suppress dissent. This is not sustainable. As human rights violations, including rape, torture murder and disappearances, continue to be perpetrated with impunity, it is not surprising that the dispossessed turn to violent means to defend their rights and interests.

Chapter 2: The police and forest department officials

Testimonies at the Independent People’s Tribunal Many participants at the Tribunal spoke of their experience at the hands of the Indian Police Force, relating incidents of corruption, extortion, torture and killing perpetrated by the police. The poorest members of society; the Dalits and lower castes, are disproportionately subjected to these violations. Lacking the political connections to shield them from the worst excesses of the police and other state officials, and often lacking knowledge about how to attempt to enforce their legal rights, they are most vulnerable to violence.

Based on the testimonies given at the Independent People’s Tribunal, violations by state officials can be loosely grouped into two categories: The first is corruption; targeting the income or livelihood of the victim. The second is the use of physical force against suspects of crimes, perceived anti-social elements, low-caste individuals or those perceived as anti-establishment. Some illustrative examples of these testimonies are set out below and can be found in full in the Annexure to this report.

In addition to being victims of corruption, harassment, intimidation, assault, torture and murder at the hands of state forces, many of those who testified at the Tribunal found that police officers inhibited their access to justice. Ranging from threats and violence to the refusal to lodge First Information Reports (FIRs) and the filing of false cases against complainants, this chapter illustrates the enormous powers that state officials wield and the lack of individual accountability. The police and Forest Department officials154 described in this chapter clearly believe that they are above the law. The testimonies given in this chapter portray the NHRC and central and state governments as weak and ineffectual in providing respite from police excesses.

Police corruption

Corruption is endemic in the Indian Police Force. The police are recognised by political and security commentators as being under the direct control of politicians and powerful individuals whose business interests and personal agendas the police are compelled to protect. The testimony of Shiv Prasad at the Independent People’s Tribunal is illustrative of the way in which the Indian police serve the ruling elite.

Shiv Prasad has worked as an engineer for the Indian Government for 23 years. In his capacity as a civil servant, he has witnessed widespread and consistent corruption by government officials, politicians and the police, who act in concert to siphon public funds for their own benefit. Shiv Prasad sought to draw attention to the corruption and bribery he witnessed, but soon discovered that there was little political will to investigate.

154 Forest Department officials are government employees tasked with the protection of the country’s forested areas

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“During 2003, I was the assistant executive engineer in the K.C. Canal Modernisation Project at Kadappa. I questioned the irregularities that were being carried out by the officers, the contractors and many representatives of my own executive department, and submitted them to the competent authorities, including the National Human Rights Commission and the State Human Rights Commission. But these competent probing authorities visited the site and gave them a clean slate".155

He elaborates on the scale of the corruption:

“I approached the Government’s Vigilance and Enforcement Department, which had given the clean chit to the project. The department refused to look into my allegations that 74 engineers and six construction companies misappropriated more than 500 crore rupees of public money and should be exposed as criminals. As a result of this, I approached the High Court in 2004 with these same allegations; but so far, no one has been punished”.156

Instead, he was persecuted by the police for taking a stand against those in power, and the police filed false cases against him for blackmail:

“I was taken into police custody on 18 September 2003. For five-and-a-half days I was subjected to physical and mental torture, and I was dumped in the police stations’ punishment cell. The police tried to establish false charges against me and lodged false complaints. The police version is that I am a Maoist, and because of this the court put me into judicial custody for 68 days and tortured [me]. I begged the police to allow me a newspaper to pass the time, but I was denied even this right. I was told every day that I was going to be ‘encountered’. I passed my days in jail in a state of extreme tension”.157

Shiv Prasad’s career has been destroyed by the police cases filed against him as a result of his attempts to unveil corrupt practices in his government department. He filed cases against the police, but no action has been taken:

“Afterwards, I gave a First Information Report to the police with a complaint against 108 officers, but none of them are being called to court. Even after the National Human Rights Commission and the State Human Rights Commission accepted my complaints against the officers and came and took statements from all of them, I fail to understand what happened afterwards and why no action has been taken”.158

Police harassment, extortion and filing of false cases

Mansoor Khan from Rajasthan describes how the police harassed him outside of a hospital at which he was visiting his father in 2007. After being detained in a police station, despite no arrest or charge, he was beaten and his relatives had to pay to have him released.

155 Full testimony of Shiv Prasad available at page 354156 The Central Vigilance Commission (CVC) was established in February 1964. It is a central agency responsible for

receiving “written complaints for disclosure on any allegation of corruption or misuse of office and (for recommending) appropriate action”. It has the authority to supervise investigations under the Prevention of Corruption Act 1988: ‘Background’, Central Vigilance Commission (CVC). Available at: http://cvc.nic.in/cvc_back.htm. Full testimony of Shiv Prasad available at page 354

157 Full testimony of Shiv Prasad available at page 354158 Full testimony of Shiv Prasad available at page 354


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“I parked my car near the hospital, but a policeman came and asked what I was doing there. I told him that my father was a patient in the hospital and that I had come to fetch him. He cursed me, caught hold of my collar and said: ‘Are you trying to act smart?’ I replied that I wanted to visit a patient inside and asked him to let me go.

Instead, he took me to the police station and started swearing at me. Then, he thrashed me and put me in the lock-up. My friends, Lal Din and Gulal Nazir, came to the police station and asked the constable to release me. He swore at them and drove them away. The police tore my clothes and locked me up. Ram Chandra Singh was the Officer-in-Charge (thanedar) of the police station with Munshi Khataramji [another policeman]. At around 5 p.m., they took 500 rupees from my relatives and released me. They kept my car, but released it later on”.159

Mansoor is bringing charges against the police. In response, they are trying to intimidate him into dropping the case:

“After that, I filed a case in the court against the police, but they are still threatening to put me in jail. They asked me to compromise and drop the charges, but I have refused to do so”.160

Chanda Devi from Uttar Pradesh described how the police arrested her sons on false charges of possessing illegal drugs:

“One day, when my son was sitting to have food, a policeman entered the room and asked me what my name is and the names of my two sons. My son said, “Pehloo and Dabloo”. The police called both of them outside, and they went out and asked the police what the problem was. The police replied, “Nothing". The police told me that they are taking my two children to the police station, and they will return soon. The police then took them and put some marijuana in their jhola [bag] and then accused them of being in possession of illegal drugs. The marijuana was around one to two kilogrammes. After lodging an FIR, my two sons were then kept in policy custody for four to five days, and finally, I collected some money and had them bailed out”.161

After receiving bail, her sons went away to work as labourers; they returned eight months later after earning 14,000 rupees. As soon as they returned, the police came and took Chanda’s son Pehloo away with them, saying that they had some work for him. They took his earnings. She searched everywhere for her son:

“The police then took Pehloo to an unknown police station and beat him severely. For ten days I did not know about his whereabouts. I was so worried; I started looking for him everywhere. Some one would tell me to go to Lourabir, someone would say Jaunpur, then I would be asked to go to Jalaghar, and then I was asked to approach the Collector. I went mad looking for him in the sun. I did not find him anywhere”.162

159 Full testimony of Mansoor Khan available at page 298160 Full testimony of Mansoor Khan available at page 298161 Full testimony of Chanda Devi available at page 388162 Full testimony of Chanda Devi available at page 388

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Chanda asked her neighbours to lend her some money to publicise her son’s disappearance in the media:

“The daroga (sub-inspector) got scared and worried due to the report and immediately called me and asked me if I had found my son. I said no. He asked me to go to Adalhat. I asked him why he had not given me this information before. I finally found my son there, and he had become very weak; my son was very strong earlier. He saw me and immediately held me and started crying. In getting him out three times on bail, I spent 1,500 rupees. We managed to get money from one place or the other and also by borrowing. We bailed him out again”.163

Mansoor Khan and Chanda Devi’s experiences are illustrative of the way that the police harass innocent citizens to assert their authority and extort money from victims and their families.

In addition to extracting money from innocent citizens, the police pressure landlords and employers to expel those that they deem to have criminal connections. Kamla Devi from Uttarakhand has been repeatedly harassed by the police in this way for many years as a result of, she believes, accusations leveled against her husband for being a “Maoist”. Despite the fact that she has had no contact with her husband for the past seven years, the police have hounded her from her house and are trying to persuade her employer to fire her:

“I am suffering from problems created by the police. I have an eight year-old daughter. We went to Almoda Golna Khagadia for her studies. The police threw me out from there. Even if I am at home or at my in-laws’ home, the police are not leaving me alone. Tell me: Why they are doing this to me? The police are visiting the shop where I work twice or three times a day. They are telling the owner of the shop to throw me out. And if I rent a room, then they say to the landlord that he should throw me out”.164

Geeta Singh is also from Uttarakhand. She describes the harassment her family has experienced from the police in their quest to combat Maoism in the state:

“The police have spread terror all over Uttarakhand under the guise of fighting Maoism. In 2004, when several labourers from Haspur-Khatta were arrested, the police came to my house four or five times. They came once at four in the morning when my husband was not at home, and took away one of our sons. When I asked them why they were taking him, the police refused to give any answer”.165

The police came to her house on a number of occasions to question her and her family:

“Again, in 2005… the police came to my house many times to ask questions. They came twice in the night with guns. They upturned everything in the house and scattered everything. When we asked what they were doing, they didn’t say anything but simply gave us the kind of filthy abuses that police officers give, which I cannot mention here.

After that, they asked, ‘Where is he?’ I asked them: ‘Who are you asking for? Why are you coming into my house? You have no warrant or anything’.

163 Full testimony of Chanda Devi available at page 388164 Full testimony of Kamla Devi available at page 318165 Full testimony of Geeta Singh available at page 372


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They said that they had every right to enter the house. I replied that I also have the right to ask you why you have entered. They said, ‘Shooting your mouth off, eh?’ I replied: ‘I’m not like other ordinary women. You will have to tell me why you have entered the house and give me the reason. Show me the warrant’”.166

After this incident, Geeta’s youngest son was arrested:

“After that, my youngest son, who works at the Central Post Office and comes from Noida on Sundays, was arrested. They took him away, saying that he was the son of the master of the house. When I tried to stop them, they pushed me. They put him in the car and went away. After that, he was in their custody all night. I called a friend of my husband’s, who is a journalist. They kept my son throughout the night and threatened him many times. And later, in the morning, they let him go”.167

Geeta described the background story to the police’s harassment of her family:

“My husband publishes a magazine called Pranashu. They are doing a lot of commenting and conjecturing. My younger son was made to sit and was told: ‘Your father is writing seditious things in the newspaper’”.168

Later, the police also arrested her husband:

“On 11 November 2005, my husband was arrested in Sethgarh as he was returning home. At that time, I wasn’t aware of what had happened, as I was ill and had been advised to stay in bed for three or four days. After two or three days, when we couldn’t find out where he was, my brother asked a bus conductor if anyone had been arrested. The conductor said that someone had been taken away from Sethgarh, but it was not clear why he was arrested or where he was taken.

We went on questioning and searching. Meanwhile, a report of what had happened appeared in the newspapers, and after much asking around, I filed a First Information Report at the police station”.169

In her view, the police are dishonest and fabricate evidence to prosecute individuals:

“You people must know how much ‘truth’ the police tell. They say different things in different circumstances, choose people from different places and show contradictory evidence”.170

Abdul Hameed from Bundelkhand in Uttar Pradesh spoke at the Independent People’s Tribunal on behalf of his brother, Anees Ahmad, whom the police have falsely accused of being a gangster and from whom they have attempted to extort money:

“As a result of a fight between the Thokia Dassoo Gang and the police [Special Task Force], my brother, Anees Ahmad, was falsely accused by the STF. They picked him up on 25 July; they kept asking him for money".

166 Full testimony of Geeta Singh available at page 372167 Full testimony of Geeta Singh available at page 372168 Full testimony of Geeta Singh available at page 372169 Full testimony of Geeta Singh available at page 372170 Full testimony of Geeta Singh available at page 372

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Dharmendra Singh elaborated on daily life in the area, terrorised by both gangs and the police:

“‘Veerapan’-like gangs, such as Badia and Thokia, have troubled the area of Bundelkhand. And on the other hand, we have to deal with the local police. If you do not bribe the police regularly, then they will cause problems for you”.171

The police detained Anees for three days before he was falsely accused of killing police officers in an “encounter”:

“The police then lodged a back-dated FIR, where he was accused of killing a number of policemen in an encounter with the notorious gangs”.172

Anees’s experience highlights the way in which the police often abuse their powers to extort money and falsely accuse innocent citizens of serious crimes in order to punish them.

Bahadur from Uttar Pradesh described the ways in which the police in his area are harassing him due to a previous dispute in the police station:

“The Baluan police station is creating a lot of trouble for us. They are creating a lot of problems in our lives... Once we had a fight with the police in Baluan police station. That’s why they are trapping us in their web”.173

The police arrested Bahadur and interrogated him in the police station for nine days. During his detention, he was subjected to violence resulting in the loss of use of his right hand:

“While I was sleeping, the police came at around 3 a.m. in the morning and arrested me. They kept me in the police station for nine days. You all can see the injuries on my right hand, and now I am unable to carry any weight”.174

Mahasargar Gautum, accompanying Bahadoor, elaborated on his testimony:

“He has come from Chandauli district, which is a very backward place in Uttar Pradesh. He belongs to the caste of forest dwellers. In Chandauli, Bhuhmin is the most common caste of forest dwellers”.175

He explained the reason behind Bahadoor’s arrest:

“They have 18 bighas [acres] of land. Farmers – or you could say a newly emerging class of backward people – are trying to capture that land. They have captured four bighas so far, and by using police torture, they are hoping we will leave so that they can capture more. In the same context, if any serious crime happens in Varanasi for which no one is held accountable, local people go to the police station and say that the residents of Jamalpur did it. Then, the police arrest the residents of Jamalpur and torture and beat them”.176

171 Full testimony of Abdul Hameed available at page 396172 Full testimony of Abdul Hameed available at page 396173 Full testimony of Bahadur available at page 345174 Full testimony of Bahadur available at page 345175 Full testimony of Bahadur available at page 345176 Full testimony of Bahadur available at page 345


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Mahasargar recounted the devastating consequences of Bahadoor’s detention and torture:

“At the time when Bahadur was in police custody, he had one bigha of land planted with wheat. Someone fooled his wife and purchased all the wheat for just 8,000 rupees. You can say that his investment was stolen. His legs and hands were damaged in prison. Even now, one of his hands is not working. That is his story”.177

After his release, Bahadur complained to the District Magistrate [DM] about the police harassment and asked for his help, but the DM did not intervene.

Sajitha Basheer from Kerala, as well as her husband and son, were falsely accused of dowry harassment by the wife of a family friend. As a result of these accusations, they were arrested, detained and harassed by the police.

She described what happened when a police officer first came to her shop:

“On 24 February 2007, a policeman who was in plain clothes and drunk came to my mobile shop and told me to get into the police jeep. I asked the person to identify himself. The policeman started to abuse and threaten me. People and bystanders nearby came to enquire the incident. Seeing the crowd, the policeman ran away”.178

She made a complaint against the officer at the police station, but the police would not allow her to file a FIR:

“I went to make a complaint against the policeman, Mr. Sura. I asked to file a First Information Report and a blood test to verify the alcohol content in his body. The complaint was finally registered after some higher authorities intervened, but not the FIR”.179

A month later, the police went to her husband’s work, dragged him out of the office, beat him and accused him of corruption:

“On 22 March 2007, some police went to the branch of Bank of India where my husband was working and dragged him out of the bank manager’s office and put him into a police jeep. He was beaten up in the jeep, and the police officers said that he was being arrested for corruption at the bank”.180

The police also arrested her son and came to her house to arrest her. She described the circumstances of her arrest:

“On the same day the police came to my shop and arrested my son, Jitin, I was also arrested. I was at home, washing clothes and was completely wet. I was humiliated by being made to change my clothes in front of the policemen. I was beaten up and forced into the police jeep. All of us were beaten”.181

177 Full testimony of Bahadur available at page 345178 Full testimony of Sajitha Basheer available at page 321179 Full testimony of Sajitha Basheer available at page 321180 Full testimony of Sajitha Basheer available at page 321181 Full testimony of Sajitha Basheer available at page 321

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At the police station, the Sub-Inspector attempted to intimidate and blackmail her:

“We were put in the police lock-up, and I was called for questioning on my own. The Sub- Inspector told me that if I responded to their sexual advances, the family would not have to suffer. In the evening, I was taken before the Magistrate and granted bail on the grounds that my 14 year-old daughter was at home alone”.182

As a result of the beatings that they had suffered in custody, Sajitha’s husband and son were admitted to the hospital for four days:

“The next day, my husband was handcuffed and made to walk two kilometers to the Pala Government Hospital when he requested medical treatment. My husband and son were released on bail in the evening of that day [23 March 2007] and admitted for medical treatment in the government hospital, where they stayed until 27 March”.183

As a result of the police’s false accusations that her husband was involved in corruption, he was suspended from his job at the bank and later transferred to another post.

Sexual assault

Laxmi Nair from Kerala described how her father had an argument with a policeman one evening:

“We were watching television in the house. There were some problems with the water, so my father went to a nearby well to take a bath on his way home from work. Our neighbour, Jaya Kumar, who was drunk that evening and is a policeman working in North India, had a verbal duel with my father”.184

As a result, the police officer beat her father, causing her and her family to rush outside to stop him:

“Jaya Kumar beat my father, and hearing the noise, our family members went to stop the fight”.185

Jaya Kumar’s brother, himself a member of the police force, joined him in beating and kicking Laxmi; both men sexually assaulted her. She fell unconscious and was later admitted to hospital:

“In the meantime Jaya Kumar’s brother, Anil Kumar – an armed policemen – joined him and beat me and kicked me under my belly. I fell on the floor, and my clothes were torn. I was sexually assaulted by both Jaya Kumar and Anil Kumar. I later fell unconscious and woke up the next day to find myself at the government hospital; I stayed there for three days”.186

182 Full testimony of Sajitha Basheer available at page 321183 Full testimony of Sajitha Basheer available at page 321184 Full testimony of Laxmi Nair available at page 326185 Full testimony of Laxmi Nair available at page 326186 Full testimony of Laxmi Nair available at page 326


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Extra-judicial killing by the police

Shatrugan Singh and his family from Bhojpur district in Bihar have been repeatedly subjected to violence and murders by a rival family in his village. This is due to an ongoing feud between his family and the Mahato family over land and power. Shatrugan’s father was killed by members of the Mahato family over a dispute about who was to be the village head in 1982. His brother was killed by the same family in 2001:

“My father was murdered on 22 January 1982 by some people from my village. I was six months old. My mother lodged a First Information Report at the local police station, but the police changed the FIR and made a final statement in favour of the assailants.

On 19 April 2001, my elder brother, Harekrishna Singh, was killed by the same people who murdered my father, but the police refused to look into the case. Later that year, on 22 September, my nephew, Naryanji, was also murdered; the police closed that case as well”.187

The police have refused to take action against the perpetrators; on the contrary, they themselves carried out the execution of his brothers on the orders of a local politician:

“We kept on crying for justice and lodging FIRs, but the police did not hear us out. In October, 2002, my elder brother, Hareram Singh, was kidnapped, but his whereabouts could not be found. Behind all these incidents is a member of the Legislative Assembly [MLA] called Bhagwan Singh Khusra, who – because of a personal quarrel with a relative – commits atrocities on us through the police and trapped my brothers in fake cases”.188

In 2006, Shatrugan Singh’s three brothers – Ramji Singh, Lakshman Singh and Bharat Singh –were murdered by the police in a fake encounter:

“On 25 August 2006, at around noon, the police came to our home. My two brothers were sitting on the verandah, and another brother was sleeping inside the house. Between 100 and 150 policemen came to our house and started shooting. When the police did not stop, both of my brothers came out with their hands above their heads in a gesture of surrender. The police caught hold of them, as well as my brother who was sleeping inside the house.

After talking with MLA Bhagwan Singh Kushwaha on his mobile phone, the Deputy Superintendent of Police [DSP] told his men, ‘These men have to be taken dead, not alive’.

My brothers were taken 100 to 150 gaj [metres] away from our home and were shot dead one after the other. My whole family and the people from the village were witnesses. They were killed in front of their children”.189

Shatrugan also described the ongoing struggle he faces in trying to bring those responsible for his brothers’ murders to justice. The Mahato family and the police have killed seven members of Shatrugan’s family, yet he and his family have yet to receive justice.

187 Full testimony of Shatrugan Singh available at page 275188 Full testimony of Shatrugan Singh available at page 275189 Full testimony of Shatrugan Singh available at page 275

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Babu Thomas from Vadekaekunnil in Kerala was murdered by officials from the Forest Department on 23 November 2006. He had gone to Kumily to meet his brother, who had arranged a job for him. He was arrested by the Forest Police – a Deputy Forest official, a ranger and nine guards – who were falsely tipped off that he had links with sandalwood smugglers. The next day, the police informed Babu’s family that he had been admitted to the Tata Tea Estate government hospital and that his condition was serious. While his father was on his way to the hospital, the police informed him that Babu had died.

When the family reached the hospital they found him dead on the hospital verandah. His face was black with bruising, and there were injuries, including cigarette burns, all over his body. It was also clear from the marks on his wrists that Babu Thomas had been handcuffed while he was tortured.

A case was registered against the officials responsible for his death, but little has been done to hold them accountable. They were initially suspended from their duties but were later re-instated and continue to work for the Forest Department today.

Obstacles to justice

Victims and witnesses at the Independent People's tribunal described the difficulties they faced in seeking justice. From reporting the case to the police, through attempts to prosecute the perpetrators there were insurmountable obstacles at every stage.

Laxmi Nair has described how she was sexually assaulted by two policemen outside her house in Kerala. She was hospitalised for treatment. While in the hospital, she gave a statement regarding the crime, but the police refused to register the involvement of Anil Kumar, a policeman, in the statement:

“I gave my statement to the police whilst I was in hospital, but they deliberately omitted to record Anil Kumar’s name and his involvement in the crime”.190

She described how the police have responded to her complaints:

“There was… a deliberate attempt made by the accused to question my morality. According to the police officials, we are the criminals”.191

The police intimidation has had a serious impact on the lives of Laxmi and her family:

“My family has been forced to sell our small property due to the threats and the influence of the accused and the community”.192

Finding that the police refused to investigate her complaints, she approached a number of other agencies for assistance:

“Complaints have been sent to the State Human Rights Commission, to the Chief Minister, and to other authorities… Later we made a complaint to the Magistrate requesting him to

190 Full testimony of Laxmi Nair available at page 326191 Full testimony of Laxmi Nair available at page 326192 Full testimony of Laxmi Nair available at page 326


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investigate the incident. The lawyer who was engaged is insisting that we withdraw the representations we gave to various authorities”. 193

V. A. Patil also described the difficulty he had in attaining justice for his brother, who was murdered by nine men from his village:

“I am from District Sangli of Maharastra. Nine men from my village murdered Balasaheb Anandrao Patil, my elder brother. Subsequently, my father and I filed a complaint at the Vita Police station. For the next five months, there was complete inaction on part of the police, and they didn’t even make a single arrest”.194

His family found the police extremely reluctant to investigate the crime and were forced to approach senior politicians for help. This resulted in the nine accused being convicted of murder:

"As a result of the police stations’ unwillingness to carry out any work, we [my family] made several complaints at the Home Minister, Chief Minister and Prime Minister’s offices. The case was then transferred to the Criminal Investigation Division [CID]. Within eight days of the investigation, the CID arrested nine of the accused and submitted their papers to the District Court. The nine accused were punished by the District Court, where they were sent to rigorous imprisonment for life [14 years]. The accused took their case to the High Court, where they were released on bail”.195

V. A. Patil’s problems did not end there. When the men were released on bail they threatened and intimidated him and his family. His efforts to seek police protection went unheeded, since the police were protecting the murderers:

“After the accused were released on bail, they came to my area several times and insisted that I withdraw the case from the High Court. They used to also fire bullets randomly to scare us. When I took this complaint to the Vita Police, they, too, were supporting the accused and asked me to compromise”.196

The police not only protected the perpetrators, but also were complicit in their persecution of V. A. Patil, taking him from his house in the middle of the night and torturing him in the police station:

“On 20 June 2002, in the middle of the night, Police Inspector Ramchandra Ghuge and Inspector Borade and Inspector Pradhan of the Vita Police Station suddenly picked me up and took me to the police station. My wife, Anita, and my brother, Rajendra, followed me to the police station. At the police station I was brutally tortured by the police, where they assaulted me with an iron bar and hockey stick. They also locked up my wife and brother, as they were protesting against my torture”.197

193 Full testimony of Laxmi Nair available at page 326194 Full testimony of V. A. Patil available at page 277195 Full testimony of V. A. Patil available at page 277196 Full testimony of V. A. Patil available at page 277197 Full testimony of V. A. Patil available at page 277

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The next day the PI went to V. A. Patil’s house and seized a number of his possessions without a search warrant:

“After my brother’s murder, I purchased a licensed revolver for self-protection. On 21 June 2002, Inspector Ghuge went to my house and confiscated all my weapons, ammunitions and cartridges, as well as my jeep, agricultural tools and other important documents, without any panchanama”.198

The police brought false charges against V. A. Patil and held him for 21 days in the police station lock-up, where he was tortured continuously by four different police officers:

“They falsely accused me of various crimes, and on this premise they kept me at the police station. I was kept at the lock up for 21 days. Inspector Ghuge, Dattaray Mandlik, Suresh Pawar, Uttamrao Salukhe and Vihswas Pandhare continuously tortured me for 21 days. They also threatened to implicate me of serious offences, which would put me at their mercy for more days.

As a result of the torture, my wife was forced to withdraw some of the complaints she had made against the policemen. The torture was very humiliating and painful. They stripped me naked, threw petrol on me, electrocuted me and whipped me with a belt or hit me with a stick. They further threatened to implicate me with nine murder cases”,199

V. A. Patil was hospitalised as a result of the torture he had suffered. The police continued to threaten and intimidate him while he was in hospital in order to prevent him from bringing charges against them. His wife approached the authorities to prosecute the police. The CID filed charges against one of the policemen, but the others were not charged with any crime:

“As a result of my injuries, I was hospitalised at Samgi Civil Hospital on 13 July 2002. During my time at the hospital, Inspector Ghuge used to visit me regularly and threaten me in case I filed any complaints against him and other policemen. After I was prematurely released from the hospital, I was again arrested by Vishrambag Police Station. After a while, I was granted bail. My wife and I went to Nagpur and gave various applications to the Home Department. I also mentioned that I was on the verge of committing suicide. The Home Minister then assured me of investigation by the CID.

The CID filed a charge sheet against PI Ghuge. Unfortunately, Ghuge was the only one to be arrested, while the other four who tortured me have not been implicated. I would like the other four to be punished as well”.200

Manoj Naithani from Roorkee, Uttarakhand testified at the Independent People’s Tribunal about the reaction of the police to complaints he made against the Roorkee Superintendent of Police to the Chief Minister in a public meeting.

“There were two cases: One was Noor Hasan, who was a mechanic and was killed by the police in Rahmatpur Village. The police also threatened his brother. The other was Ashoka,

198 Full testimony of V. A. Patil available at page 277199 Full testimony of V. A. Patil available at page 277200 Full testimony of V. A. Patil available at page 277


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who died in police custody. He was going for trial, and then suddenly blood came out of his mouth, and he died on the spot; the police did not give us even his post mortem report. These are the cases that I raised in the public meetings”.201

The Superintendent of Police was given the authority to investigate the complaints against him:

“I made a written complaint about peoples’ rights in the Janta Darbar [public meeting] of our Chief Minister, Sri Bhuwan Chandra Khanduri. I also complained about the Superintendent of Police of Roorkee. The SP against whom the complaint was made was himself given the power to investigate the matter”.202

He described the reaction of the Superintendent of Police:

“One month later, he sent the police to my house as if I were a criminal. He called me into the police station and said, ‘Who do you think you are?’ and ‘What you are doing? On what basis have you complained about me?’

The Superintendent of Police called me and asked who had told me that what was written in the newspaper was correct. He asked whether the reporters questioned me before publishing the newspaper. I told him, ‘The press is the fourth pillar of the Indian Constitution, so why would they ask one before publishing anything?’ to which he replied that, ‘They may be the fourth pillar, but they published without checking their information first’.203

The Superintendent of Police concluded his “investigation” into Manoj’s complaints by making him sign a document retracting his earlier statements:

“Then, he snatched the documents that were in my hand and threw them on the floor. He forced me to sign a paper that said I do not have any complaint against him”.204

Manoj Nethari’s testimony highlighted the lack of accountability enjoyed by the police, who are protected by their strong political connections and by legislation guaranteeing them immunity without the explicit sanction of the central or state governments.

Sajitha Bashir and her husband and son were falsely implicated in a dowry harassment case and were beaten in custody and harassed by the police. She described the difficulty she has experienced in filing complaints against the police:

“The police case against me is still standing. At the same time, I have registered two cases – one against Sub-Inspector Sura and the other for the police torture. In September 2007, a notice was sent to me stating my complaint was false and that the police would not register any FIR”.205

201 Full testimony of Manoj Naithani available at page 319202 Full testimony of Manoj Naithani available at page 319203 Full testimony of Manoj Naithani available at page 319204 Full testimony of Manoj Naithani available at page 319205 Full testimony of Sajitha Basheer available at page 321

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She has since complained to the Home Minister, but no action has been taken on her case.

Shatrugan Singh described the intimidation his family experienced when they attempted to have the extra-judicial killings of family members investigated:

“Together with our relatives, we took the bodies to the District Collector. I told the District Magistrate everything. At that moment, S.S. Thakur, the Deputy Superintendent of Police, and police officer Jitendra Misra, together with six other officers, approached us. They assaulted and threatened us, telling us not to file a case against the authorities and then drove away. They also arrested one of our relatives, but released him later in the night. After we had cremated the bodies, we came back home. The policemen told us not to lodge any case against them and continuously threatened us”.206

Shatrugan and his family have pursued other avenues in the hope of achieving justice:

“On 28 August, the human rights organisation People’s Watch came to us and showed solidarity and gave us some strength. Then my sister-in-law went to the court to lodge a complaint. The case is still pending, and no proceedings have taken place.

We wrote a letter to the National Human Rights Commission, but they gave the letter to the police, and the police personnel came to our village. They took statements from my sister-in-law, the children, and from many other villagers, but they did not take any notice of them at all. The day the incident happened, on 25 August, they arrested a boy from the village. In his statement, he said that the police had shot these people in front of his eyes. But still the authorities have not launched any enquiry. The police did not record any statement of ours. Neither did they carry out a post mortem on the bodies, on the orders of the magistrate. Nor did they allow us to take photos of the bodies”.207

Abdul Hameed appealed to the National Human Rights Commission for help in the false cases filed against his brother, Anees, who was accused of killing policemen in an “encounter”; however, the NHRC did not intervene in the matter:

“We took the matter to the Human Rights Commission. In their decision, they did not find anyone from the STF guilty. The Human Rights Commission did not even ask for a Central Bureau Investigation (CBI) investigation”.208

Dharmendra Singh pointed out that Anees had never been in trouble with the police before and reiterated the need for an investigation:

“All his past records are perfect. The CBI remains very indifferent, as they claim that the Superintendent of Police has investigated the matter, and thus the matter is verified. The only way out for us is a CBI inquiry. I request you to help us in getting the CBI inquiry done”. 209

206 Full testimony of Shatrugan Singh available at page 275207 Full testimony of Shatrugan Singh available at page 275208 Full testimony of Abdul Hameed available at page 396209 Full testimony of Abdul Hameed available at page 396


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The police and caste-based violence and discrimination

“In a caste-based society, torture and other atrocities are related to the caste system. The most vulnerable group[s] in this country are the Dalits, the Adivasis and other marginal sections and minorities”. – Dr. J. M. Prasad speaking at the Independent People's Tribunal210

Dr. J. M. Prasad of the National Campaign for Dalit Rights gave an expert deposition at the Independent People’s Tribunal. He pointed out that it is the most vulnerable members of Indian society – the poor, Dalits and Adivasis – who are most likely to experience police brutality and who are effectively excluded from the criminal justice system by the police:

“As you all know, in a caste-based society like India, we torture vulnerable communities who are mainly the lower castes”.211

Ramdev Vishwabandhu, a journalist from Jharkhand, described the prevailing climate of caste-based discrimination in India:

“Caste, sub-caste and religion are very deep rooted in India, and these are primarily responsible for the worst forms of human-rights violations. In fact, the moment we talk about castes, sub-castes and religion, that itself constitutes an open declaration of the worst kinds of human-rights violations. There is no worse form of violation anywhere else. In Jharkhand, we have a strong caste system”.212

He pointed out that the marginalised sections of society suffer the majority of human rights violations:

“The violations are taking place in four segments: Dalits, Adivasis, minorities and women”.213

Caste-based discrimination is still endemic in police stations across the country:

“In a study conducted by the Indian Institute for Dalit Studies on untouchability practices, it was found that in nearly 40 per cent of the police stations throughout the country, the practice of untouchability is still prevalent”.214

This is despite the fact that police officers are often recruited from the “lower” castes. Ramdev Vishwabhandu explained why caste-based violence continues and how police officers from marginalised communities may turn against their own people once elevated to positions of power:

“Another aspect within caste is class. Hence, when a member of either a caste or an Adivasi is socially uplifted owing to his position or employment and occupies a position from where he can exert his powers, he himself starts violating the rights of his own community members. He

210 Full deposition of Dr. J. M. Prasad available at page 389211 Full deposition of Dr. J. M. Prasad available at page 389212 Full testimony of Ramdev Vishwabandhu available at page 404213 Full testimony of Ramdev Vishwabandhu available at page 404214 Full deposition of Dr. J. M. Prasad available at page 389

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forgets about his roots and starts to torture his own people. We have SPs [Superintendents of Police] in Jharkhand who are Adivasis who torture people belonging to their own communities. Hence, within caste the problem of class also arises”.215

Following the enactment of the Protection of Civil Rights Act (1955), the police and judiciary have been given wide powers and effective tools to investigate and prosecute untouchability practices.216 Furthermore, the Constitution and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 specifically prohibits violence against these groups. Despite these measures, violence continues unabated and remains a daily reality for thousands of Dalits and Adivasis, particularly in rural areas.217 The protective laws are inadequate because their enforcement is entrusted to the police, who continue to display considerable enmity toward Scheduled Castes and Scheduled Tribes.

At the Tribunal, Dr. J.M. Prasad related a number of incidents highlighting the plight of these vulnerable groups and the police’s complicity in abuses meted out to them by members of the higher castes:

“In April 2007, in Kanpur Uttar Pradesh, a Dalit rickshaw puller was beaten up by some upper-caste people. When the victim approached the police station to file a complaint, he was beaten by the police. In Himachal Pradesh, a Dalit boy approached the Superintendent of Police to file a complaint against a person who refused to allow her mother to fetch water from the well. In Punjab, a Dalit person was denied work in a police officer’s house and was beaten along with his son-in-law. In another incident, in Punjab’s Nabha Jail, the jailor identified a Dalit prisoner, stamped his caste name on his back and paraded him around the entire premises of the jail”.218

The police often prevent Dalits and Adivasis from accessing the criminal justice system, including by physically excluding them from police stations when they attempt to lodge complaints:

“Dalits are not allowed to enter the offices of the Station House Officer. They have to remain outside and lodge their complaints from there. Cruel, inhuman and degrading treatment is still being meted out by the police, as well as by other state agencies and by enforcement officers”.219

Rather than protecting the marginalised communities, the police serve the interests of the rich and powerful by harassing Dalits and Adivasis:

“Beating members of the Dalit community, including women, at the request of the upper-caste community is a common practice. If an upper-caste person approaches the police complaining that a Dalit has refused to serve them, the police takes that person into custody and beats them”.220

215 Full testimony of Ramdev Vishwabandhu available at page 404216 For example, when an accusation is made against the accused the onus is on the accused to prove that he had not

committed the crime217 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 terms a number of untouchability

practices ‘atrocities’ for the first time.218 Full deposition of Dr. J. M. Prasad available at page 389219 Full deposition of Dr. J. M. Prasad available at page 389220 Full deposition of Dr. J. M. Prasad available at page 389


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It is common for the police to harass and intimidate Dalits and Adivasis by filing false cases against them in retaliation for their complaints about caste violence:

“Where the Dalits and Adivasis approach the police station to lodge a complaint and are humiliated, a countercomplaint is filed against them, and they are taken into police custody”.221

Dr. J.M. Prasad pointed to the continued discrimination and abuse to which the police subject low-caste individuals that they hold in custody, as well as their visitors:

“Physical and the verbal abuse, using the name of the person’s caste, is inflicted not only on those arrested, but also on those who come to visit them. Their caste name is abused and permission to visit their relatives is not given easily”.222

In addition to persecuting Dalits and Adivasis, the police obstruct their access to justice by failing to conduct investigations into their complaints:

“The police fail to register the Dalits’ and Adivasis’ complaints, and also fail to pursue any investigation or look up into the matter according to the available evidence. In nearly 80 per cent of such cases, the police do not conduct any investigation. This is so despite the fact that under the Protection Measures and the Scheduled Caste and Scheduled Tribes Act they have to undertake and complete an investigation within 30 days. But this is not happening”.223

This leads to a situation in which Dalits and Adivasis are excluded from the criminal justice system at every stage:

“The entire criminal justice system – the investigation, the arrest and the compensation – are all totally denied to the Dalits”.224

Shyam Chander Divaker from Uttar Pradesh testified at the Independent People’s Tribunal about a situation in which he was falsely accused Sri Bansi Lal, Deputy Inspector General (DIG) of Police, in a case of dowry violence on account of his caste. Shyam is a Dhobi – a washerman (a Scheduled Caste).

“On 14 October 2002, he (Sri Bansi Lal) called me to his office for a personal matter. There he verbally abused me and told me that I have to go to jail on 21 October… On the 21st, Bansi Lal again called me to his office, and he ordered the police to lodge a case against me in court.

On 3 November, he asked the police superintendent of Bareilly to give him information about a case concerning dowry violence, which was being investigated at that time. On the 12th, in Bareilly, the case was registered under Section 498 of the Indian Penal Code, sub-section 4 [husband or relative’s cruelty] and Section 294 [obscene acts]. In all, ten people were booked, among them Srimati Preetamdevi from the Moraon “backward” caste. I was also named”.225

221 Full deposition of Dr. J. M. Prasad available at page 389222 Full deposition of Dr. J. M. Prasad available at page 389223 Full deposition of Dr. J. M. Prasad available at page 389224 Full deposition of Dr. J. M. Prasad available at page 389225 Full testimony of Shyam Chander Divaker available at page 303

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Shyam appealed to a number of high-ranking government and judicial officials to clear his name.

“I sent a plea letter to the Governor of Uttar Pradesh, to the Prime Minister, to the Chief Justice of the Supreme Court, and to the Speaker of the Lok Sabha to take action against Bansi Lal… On 8 November of that year, I requested his Excellency, the Governor of Uttar Pradesh, to initiate proceedings against Bansi Lal. The Governor ordered the Chief Secretary in a letter to take action against Bansi Lal. In September of the following year, Sri K. P. Singh, the Additional Chief Judicial Magistrate in Bareilly, accepted my petition and released me from the charges against me under Sections 294 and 498 of the IPC”.226

Although charges against Shyam were eventually dropped, no action has been taken against Bansi Lal, the DIG who filed the false case against him. The NHRC took up his case, but they do not have independent powers of investigation and are thus often obliged to ask the police to investigate the very allegations against them. Unsurprisingly, this rarely culminates in action against alleged perpetrators in the police force. This Shyam’s experience:

“The National Human Rights Commission [NHRC] asked to see me, as I had also written to them about my case. In 2003, the assistant registrar at the NHRC ordered the Director General of Police in a letter to investigate what happened and to send me a report within six weeks… Despite repeated efforts and many requests to all concerned, I have never received any information”.227

No action has been taken against Bansi Lal for filing a false case against Shyam or for persecuting him on the grounds of his caste:

“It is my humble submission that Bansi Lal, the DIG of the police in Bareilly region, tortured me mentally and physically. He has deprived me of my wealth and has abused me because I am a Dhobi. Preetam Devi is a backward caste, a Morao, but I am a Dhobi – a washerman (a Scheduled Caste). I have had nothing to do with their family affairs.

Sri Bansi Lal abused his power and position and launched a proceeding against me, which was against people’s fundamental rights as ordained by the Constitution. If I don't get justice, the common man will lose faith in you, in the Constitution and in the judiciary. This will lead to people taking the law in their own hands”.228

Forest Department officials and the persecution of Adivasis

In her expert deposition at the Independent People’s Tribunal, Shamim Modi from Shramik Adivasi Sangathan in Madhya Pradesh, described the discriminatory and dehumanising treatment of the state’s tribal population who live in areas overseen by Forest Department officials:

“We have been working in places such as Betul, Harda and Khandwa for the past 13 years. The reason why we started working with them was because a lot of atrocities were being

226 Full testimony of Shyam Chander Divaker available at page 303227 Full testimony of Shyam Chander Divaker available at page 303228 Full testimony of Shyam Chander Divaker available at page 303


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committed on the local Korku tribes. These tribes are very close to the primitive tribes, and their situation is very abysmal. The various departments of the area, such as the Public Works Department and the Forest Department, hire the local tribal people for their work and do not pay them their wages. Non-payment of wages is the most common problem in the three tribal areas”.229

While Forest Department officials treat the tribal population as modern-day slaves, the police threaten and extort material goods from the local inhabitants, burn down their homes and file false cases against them:

“The police, along with other departments, take a lot of bribes, and non-payment of bribes results in more atrocities. A new way of tormenting those who raise their voices is by burdening them with falsely accused crimes. Villages such as Bhandar Pani and Dhawana Kherda have been burnt down twice by the Forest Department, just because they asked for their due of 1 lakh rupees from the Forest Department. After the payment is made, they falsely accuse people of different crimes.

During harvest time, the tribals are required to give the local officials some corn, alcohol and chicken. Some of the tribal girls are also forced to be domestic servants in the officials’ houses, where they have to do all sorts of dirty work”.230

Shamim described the difficulty of bringing cases against Forest Department officials:

“When we go and register a criminal case against the forest officials, they hit back at us by falsely accusing poor tribal people”.231

The levels of poverty and discrimination against Adivasis in the region are staggering:

“These people, who live off mango kernels, do not have enough food for themselves, and often their children die from starvation. How can you expect these people to be criminals?”232

They are pursued and persecuted on the basis of their status as tribal people:

“People of the area often go into the forest to get themselves some firewood. The forest officials then register a preliminary offence report against these people; the forest officials then register cases against them. They then destroy their small huts and confiscate all their belongings from their hut; these include salt, rice, some containers, and a few shawls”.233

Adivasis are often detained and tortured by the police in order to punish them for alleged infringements.

229 Full deposition of Shamim Modi available at page 324230 Full deposition of Shamim Modi available at page 324231 Full deposition of Shamim Modi available at page 324232 Full deposition of Shamim Modi available at page 324233 Full deposition of Shamim Modi available at page 324

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Amrit Lal experienced the same treatment in Uttar Pradesh. He recounted the numerous ways in which Forest Department officials harass and intimidate Adivasis in his area:

“They take our things, beat us and claim that where we live is a government mountain. They take away resources from villages, as well as taking over many bighas [acres] of village land. When we oppose this, they say that the property is theirs and that there is no place for us. The situation is now so bad that we no longer have anywhere to live. Wherever there is space, the Forest Rangers encroach upon the land and put boundaries around it”.234

He describes how false, even outlandish, cases are filed against the Adivasi population in order to terrorise them into leaving the forests:

“Five, six or even ten people are picked up simultaneously and taken to jail. They say, ‘These people have become netas [powerful]. Let’s book them because of that’. Cases are filed against us, and we have been jailed two or three times. They accuse us of planting bombs…

They tell the Trust and the NGOs that help us, ‘We don’t know where you get these people from – what do you make of them? We will lodge such a case against them that they won’t easily get bail’… For three-and-a-half months, we were locked up in jail. My lawyer worked very hard to release us quickly. The Forest Rangers had lodged such strong cases against us that it was difficult for us to get bail. They have done such things to all the members of the family, so that we had to run to and fro from the jail to keep fighting the system”.235

Hanoo from Madhya Pradesh described how Forest Department officials confiscated his possessions and subjected him to sexual violence in custody. They have also filed a number of criminal cases against him:

“We have been living in the forest area for the past 30 to 40 years. And in the name of evicting us from the forest area, the Forest Department officials took all our tools and jewelry from us. They kept me under remand for a long time. For three days, the officials made me do many vulgar acts [sexual favours]. I was also beaten up while I was in jail. I could not describe this in court, as it was very disgusting. I have about 20 cases registered against me. They have continued to torment us in this manner”.236

Shamim Modi, accompanying Meher Singh, described an incident in which the police, the Revenue Department and the Forest Department came to evict Adivasis from their tribal forest land in retaliation for complaints made against them for corruption and the non-payment of wages:

“They have what is called a Task Force, which is supposed to evict people through encroachments. Godepur Mal was singled out because it has a very strong link to a Sangathana [a general term for a local community group], and they have been exposing the corrupt practices of the police and the Forest Department. We, too, have been raising issues about the non-payment of wages in Baitul District”.237

234 Full testimony of Amrit Lal available at page 364235 Full testimony of Amrit Lal available at page 364236 Full testimony of Hanoo available at page 314237 Full testimony of Meher Singh available at page 313


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The police came to their village at night. They were drunk and assaulted the Adivasi women but were eventually chased away:

“Under the guise of an eviction, the police came at around 9:30 to 10 p.m. with a force of between 50 to 60 armed people in four or five jeeps and around seven motorcycles. Meher Singh was in the local market. All the policemen were drunk. Because of this, the first thing they did was to go to his house and molest the women. It went on for a very long time. The women started shouting and pelting stones at the whole team in self-defense; then the police ran away”.238

In order to punish the villagers, the police and forest officials filed false criminal cases against those who had highlighted their corruption:

“After they went back, the first thing they did was to register cases of dacoity and attempted murder on 11 tribals. Meher Singh was also named, even though he was not in the village at the time. All the people who are active in the Sangathana were also named… Hanoo, who lived in a different village, was also one of those named… He was not present in Godepur Mal. Hanoo’s name was added to the case one month later. He was arrested and tortured in police custody. He was put in jail for almost five months”.239

The baseless charges were later dropped:

“Only after we approached the High Court in Madhya Pradesh did the district judge in Baitul enquire into the incident. After that, the charges of dacoity and attempted murder were dropped”.240

Phoolvati Bai from Dhega village in Madhya Pradesh described how Forest Department officials beat many members of her village, hitting them with their guns, and shot at them:

“My brother-in-law had gone to the fields. On his way back, the forest guards caught him and took him with them. I went to where they had taken him to get him released, but they beat both of us a lot. The forest guards fired a lot of shots and hit us with the butts of their guns. They broke my hand, and it is still injured. My brother-in-law’s head was badly injured, and his jaw was fractured. They broke his hand, too, and fired shots at him. He still can’t use his hand and is unable to work.

His wife came to know about what was happening, and when she came to rescue us, they beat her with their gun butts, too. My husband, Rambharose, heard about the incident; he came to rescue us, and the forest guards beat him, as well. He was shot in the leg and badly injured. My husband’s cousin came to hear about what happened. He, too, came to the spot and was beaten up badly by the forest guards. They even beat half the people of our village when they came to rescue us”. 241

238 Full testimony of Meher Singh available at page 313.239 Full testimony of Meher Singh available at page 313240 Full testimony of Meher Singh available at page 313241 Full testimony of Phoolvati Bai available at page 391

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She contacted the police to complain about the Forest Department officials:

“After the incident, we all held a meeting. We were all in a state of fear. We called up the Superintendent of Police and told him what had happened and that the forests guards were beating us. We requested him to take some action and recall the guards”.242

The policeman took Phoolvati to the hospital to be treated for her injuries, but the hospital made her leave before the incident was investigated:

“The SP came at about six o’clock in the evening and took me along with him, telling me that he would get me treated in the hospital. I told him that my husband was in a very critical condition, and he couldn’t come with us. I asked the SP to get him treated in the village, but he simply took us along with him to Rergaon and from there to a place called Harda [where there was a hospital].

He did not question me or arrange for us to be treated there. I was only given a medical examination. I stayed in the hospital for only one night. The hospital staff then asked me to vacate the bed and leave. I told them that the police investigation had not been finalised, and how could I leave just like that? Where would I go? The hospital forcefully threw all of us out”.243

In protest to the police’s inaction, Phoolvati lay on the road. The police picked up her and her companions and began abusing them:

“The policemen came and tore our clothes, picked us up by our arms and legs and started to carry us away. My sister, Sanim, arrived with my brother, Santosh. She asked the police where they were taking us poor people. She said atrocities were being committed against us, and no legal action was being taken to stop it. She asked why nobody was taking any action and said that she would go to the court to seek justice. The policemen started abusing us and pushing us again. They were manhandling us; they tore off our clothes and exposed our chests. They seized all the documents and files that my sister Sanim was carrying with her”.244

The police took Phoolvati and the others to Bhopal, where they were detained for days without food, water or medical assistance:

“The police kept us there for three to four days without food and water. My nephew, a small boy who was with us, was also not given anything to eat or drink. They didn’t give us any medical treatment or any beds to lie on. The roof was leaking. My injured brother-in-law had to sleep on the floor. I didn’t receive any medication, either. We were made to live for three to four days in these horrible and inhuman conditions”.245

She was released, but her brother-in-law continued to suffer at the hands of the police:

“When I told them that my one-year-old child was at home and asked them to let me go, they released me, and I went back there. But they put my brother-in-law under house arrest and

242 Full testimony of Phoolvati Bai available at page 391243 Full testimony of Phoolvati Bai available at page 391244 Full testimony of Phoolvati Bai available at page 391245 Full testimony of Phoolvati Bai available at page 391


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handcuffed him to the bed. He was in a critical condition after having been so badly beaten up and bruised and he received no treatment; despite this, they handcuffed him”.246

Shamim Modi, accompanying Phoolvati, described how the police filed cases against both the Forest Department officials and Phoolvati Bai and her family. They are struggling to get justice for the abuses they suffered at the hands of the Forest Department officials:

“The police filed a case against the forest ranger under Section 155 of the Indian Penal Code [IPC] and a case of robbery and banditry against Phoolvati Bai and her family under Section 323 and 360 of the IPC. They were dragged to the court without having done anything, and judicial proceedings were initiated against 22 village people. No help is being given to them.

The villagers themselves filed a petition in the High Court, which has issued a stay on their arrest. The Chief Justice of the High Court ordered the District Court Judge to investigate the matter, but the judge compiled a report that went against the villagers”.247

Phoolvati lives in fear of what will happen to her and her family in the future:

“Even now the forest guards threaten us, telling us to leave the house and abandon our farms. They even send us notices. Where will we go? Why should we leave our home? They still threaten us, saying they will come and drag us out of our house and beat us”.248

As Shamim observed, the rule of law is absent in these areas:

“Two ladies – Gajrabai and Gajribai – were…put behind bars as punishment. The officials then ask for an extension to their remand, citing that the investigation is not complete. In this fashion, people are often locked up for a month. When they are released, they are asked if they have learned a lesson or not.

The people of the area are threatened if they join any organisation or if they lodge a complaint against the forest officials… The first thing the forest officials do is to torture a person for two three days, without making any kind of official record of his arrest. There is no rule of law in Harda and Betul. Only once has a responsible SP [Superintendent of Police] come to our area, and it was then that we registered a complaint against the forest officials”.249

Shamim described the ways in which state officials have responded to their peaceful demonstrations seeking to uphold the rights of Adivasis in the region:

“We started a peaceful protest comprising of about 20,000 people. The forest officials then came and beat us up very badly. They then accused us of all kinds of crimes, such as robbery, dacoit, and attempt to murder. When we tried to take this matter to court at places like Betul and Harda they dragged me and other girls in the middle of the city. Their only aim was to stop us from going to court”.250

246 Full testimony of Phoolvati Bai available at page 391247 Full testimony of Phoolvati Bai available at page 391248 Full testimony of Phoolvati Bai available at page 391249 Full deposition of Shamim Modi available at page 324250 Full deposition of Shamim Modi available at page 324

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Shamim has been targeted for her activism in the region, and the State has sought to discredit her:

“I have been given notices from six different districts that I am not allowed in those areas. They have accused my husband and me of staging illegal demonstrations and agitations in the villages.

“We brought this up in the High Court during an ongoing trial, and the judge was shocked, as it reminded him of the Emergency era during Indira Gandhi’s days. We also have a small political party, and before any election, they arrest my associates and me for no apparent reason. The BJP – the party in power – also tried to get rid of us... The situation is very serious in the interiors of India. We should put more pressure for a just system”.251

Much of the violence and politicisation of the police force that the victims and witnesses described above are deeply ingrained colonial legacies. These testimonies make clear that victims are dehumanised in the minds of the police and Forest Department officials to the point that harassment and violence against low-caste individuals or those with perceived criminal or Naxalite connections is justifiable to maintain the status quo. The lack of accountability among police and forest department officials is a major contributing factor to the use of violence in the course of law enforcement and is a recurring theme throughout this report.

The next chapter examines the use of torture in India, which is broadly divided into two main categories: torture as an alternative to criminal investigations and torture as a means of suppressing civil dissent. The chapter goes on to examine the methods of torture that the police, armed forces and security forces employ, according to the accounts of victims and witnesses at the Independent People’s Tribunal. Following this, we examine the incidence of custodial deaths in India as described by participants in the Tribunal. We then look at the existing obstacles to successfully prosecuting perpetrators for torture and extra-judicial killings. These obstacles include: lack of judicial notice regarding cases brought against the police for atrocities, complicity of medical professionals in police violence and impunity enjoyed by members of the police, armed and security forces.

251 Full deposition of Shamim Modi available at page 324

Chapter 3: Torture in India

There is no specific definition of torture in Indian law. The legal definitions of torture, and the less severe standard of inhuman and degrading treatment, are contained in a number of international instruments. Their prohibition is a fundamental principle of international law.252

A clear definition of torture is provided in the United Nations Declaration on Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975). This document defines torture and inhuman and degrading treatment as:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons”.253

This definition was later adopted by the General Assembly in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of 1984.254

For the purposes of this publication, no formal distinction will be made between acts of torture and acts constituting inhuman and degrading treatment. It is also worth pointing out that some aspects of the experiences related by victims and witnesses at the Independent People’s Tribunal may not fall within the legal definitions of torture or inhuman and degrading treatment given above. Nonetheless, many of the practices described at the Tribunal were extremely humiliating and painful – both emotionally and physically – and this report will not concern itself unduly with whether specific incidents of abuse committed by state officials fall within these legal definitions.

Victims and witnesses at the Independent People’s Tribunal testified to a range of incidents of torture, which broadly fell into two categories: torture carried out as a means of criminal investigation in police stations, and torture in the context of suppressing civil dissent in situations in which individuals were perceived by state officials as opponents of government policy, or those seeking to challenge the status quo. It is clear that the use of torture, while pre-dating the colonial period, stems from its colonial acceptance as a legitimate tool against opponents to the ruling elite and an acceptable practice in the maintenance of law and order.

252 See for example CAT. The Universal Declaration of Human Rights 1948, Article 5 stipulates that: “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”

253 In the Tokyo Declaration 1975, the World Medical Association defined torture as: “the deliberate, systematic or wanton infliction of physical or mental suffering by one or more person, acting alone or on the orders of any authority to force another person to yield information, to make a confession or for any other reasons”

254 CAT, Article 1

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Torture as a tool of interrogation

“It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence”. – Sir James Fitzjames Stephens recalling an interview with an Indian civil servant in 1855255

Instances of torture, killings and forced disappearances carried out by local landlords and those in positions of authority pre-date the colonial period. Upper-caste populations regularly perpetrated atrocities against the poor and landless for a variety of reasons, including as punishment for perceived violations of caste boundaries, as revenge, for forcible conversion, in response to perceived or actual criminal activities, to extract information about suspected activities and as a means of political control. Today, torture remains a daily reality in police stations, towns, villages and areas of internal conflict, such as the Northeast, the Kashmir valley and Naxal-affected states.

Torture is an integral part of criminal investigations in India. Under the Indian Police Act of 1861, the role of the police force has historically been one of paramilitary action, with little emphasis on detective activity.256 The police were trained to suppress all dissent against British rule, a situation that gave unlimited power to police officers. At the same time, police received very little training in investigative techniques and crime-solving. As a result, brutal practices and the misuse of force became endemic in the operations of the police across the country.

In the context of criminal investigations, the use of torture to extract confessions was so commonplace under the British, that when enacting criminal laws for the country, the administration made all confessions to police officers inadmissible as evidence.257 Nonetheless, the British turned a blind eye to its continued use under their rule. The use of torture as a means of acquiring information and solving criminal cases was tacitly accepted as a ‘necessary evil’ in combating criminal activity.

Torture is a tool of oppression used by those in positions of authority to threaten and intimidate detainees. The torturer’s position of power is exacerbated by the circumstances of impunity and lack of accountability.

Little has changed since Independence. The system of administrative oversight contributes to police heavy-handedness. The police continue to be characterised as a “force”, and the police culture and organisational practices remain unchanged. The Indian criminal justice

255 Report of the Commission for investigating the alleged cases of torture in Madras with correspondence (1855) Fort St. George. A History of the Criminal Law in England by Sir James Fitzjames Stephens London: Macmillan Volume I, page 442, note 1

256 Social disorganisation and contemporary social crisis by A Kumar, New Delhi: Anmol Publications, 2000, page 49257 IEA, sections 25 and 26. Under section 27 of the IEA, however, confessions leading to the recovery of corroborating

evidence encourage the use of forced confessions by the police


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system, based on a colonial system concerned with the maintenance of power, protects the interests of the rich and powerful at the expense of the poor and marginalised. Violence and torture are disproportionately inflicted on the poorest, most vulnerable and least powerful members of society and those least able to utilise the tools of justice to seek redress. According to Amnesty International, torture is “endemic” in police stations across India. It is often used against individuals “on the basis of their caste, religion, socio-economic, and sexual identity”.258

The police force is under constant pressure from the media, politicians, bureaucrats and the public to arrest and prosecute criminals. The police force, however, lacks adequate training and facilities to produce successful results; this often prompts them to take “short-cuts”. Torture is used as a cheap and easy method of investigation. It is widely employed in police stations to gather information about a crime from a detainee, to elicit the whereabouts of an accused or as retribution for bringing a case against an individual in a position of authority or under police protection.

An increase in crime rates and high profile crimes often causes great public outrage. Frustrated at their failure to control crime and angry that they are blamed, police officers often vent their frustration by resorting to extra-legal measures. In their view, the use of illegal arrests and torture in police custody may lead to signs of progress in criminal investigations and positive media attention. Despite this, the use of torture has had little impact on increasing the rate of prosecution or conviction of alleged criminal activity. As Amnesty International, commenting on the use of torture in West Bengal, observed:

“[The] police are being urged to use whatever means necessary to deal with crime and are often allowed to use torture as a substitute for investigations, while action is rarely taken against the perpetrators. This system of policing is having little if any impact on crime”.259

In addition to high-profile cases involving the prosecution of serious crimes, many incidentsof torture and custodial death result from attempts to extract a confession relating to theft or other petty offences. Poor, low-caste individuals are particularly vulnerable to torture in these circumstances.

Detainees are most at risk from torture in their first 24 hours in custody. During this time, the detainee’s vulnerability is heightened because the individual’s whereabouts are often unknown to his or her family. And, despite the numerous constitutional and legal protections available to detainees, there is no guarantee that the police will ensure that a detainee receives his legal entitlement to make contact with a magistrate, lawyer or family member.260 In addition to

258 ‘India: Country Reports on Human Rights Practices, 2007’ Bureau of Democracy, Human Rights, and Labor, US Government, 2008. Available at: www.state.gov/g/drl/rls/hrrpt/2007/100614.htm

259 ‘Time to act to stop torture and impunity in West Bengal’ Amnesty International India, 10 August 2001. Available at: http://archive.amnesty.org/library/Index/ENGASA200412001?open&of=ENG-333

260 See Chapter 1 regarding the constitutional and legal protections available and the efforts of the Supreme Court to strengthen the rights of detainees

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torture practices, many victims and witnesses at the Independent People’s Tribunal described incommunicado detention, post-dated charge sheets and disappearances from custody.

The use of torture in police stations during the investigation of criminal activity is widespread. Police officers often employ “third-degree” methods of torture on detainees in an effort to produce results. There is evidence to suggest that the majority of police officers do not see the use of violence in custody as a reprehensible practice despite its clear illegality. For example, a 2007 study of 150 police officers by the Institute of Correctional Administration in Punjab found that:

“58 per cent of [the police officers interviewed] feel there is no sense of shame in cops accused of torture. Only 27 per cent say their colleagues feel bad about the use of force to effect confession and recovery”.261

This finding is attributable to a range of factors, including dehumanisation of the victim as “the other”, lack of individual police accountability and the focus on achieving results. Another relevant factor is the lack of training given to the police regarding fundamental rights standards and the policies and best practice guidelines issued by the NHRC. The study by the Institute of Correctional Administration discovered that only 10 per cent of police officers surveyed were aware of the guidelines issued by the NHRC on custody-related issues. Furthermore, only 12 per cent could correctly identify Articles of the Constitution relevant to detention-related matters.262

Torture as a tool of interrogation: a testimony from the Independent People’s Tribunal

In order to fully illustrate the horror of torture in custody, we turn to the testimony of Baljeet Kaur, a woman from Punjab, who the police arrested, detained and tortured in January 2004. The police arrested her on suspicion of being a criminal. Her testimony illustrates the way in which the police rely on brutal tactics to “investigate” criminal activity: Rather than gathering evidence and investigating her alleged criminality, they tortured her relentlessly.

“The police arrested me on 28 of January, 2004. I was returning from the Guradwara in an auto-rickshaw when I saw two men in civil clothes entering the auto rickshaw. I had no idea that these men were policemen, as they were not in uniform. After some time, these two men got out of the auto-rickshaw and forcefully picked me up and dumped me in another car”.263

The police took her to the police station in Chandigarh, where they tortured her continuously for four days. She described the methods the police used to destroy her both physically and mentally:

“They tortured in such a bad manner that all my lower portions were damaged. They also hung me from my hands and also gave me electric shock. I remember their names – Sumer Singh Saini, DSP Sagar, R.P. Singh, K.P. Singh and SP Gaurav Yadav”.264

261 ‘Custodial Deaths and Human Rights Commission - an analysis of its role and prevention’ by Dr. Upneet Lalli, Institute of Correctional Administration, as quoted in: Torture main reason of death in police custody: Study, Saurabh Malik, Tribune News Service, Chandigarh, March 12 2007. Available at: http://www.tribuneindia.com/2007/20070313/punjab1.htm#7

262 Ibid. 263 Full testimony of Baljeet Kaur available at page 323264 Full testimony of Baljeet Kaur available at page 323


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The policemen who tortured her viewed her as less than human:

“They did not really care for my life. In their understanding I was already dead, and they were ready to dispose of my body”.265

As a result of the torture, Baljeet lost the baby she was carrying:

“I was three months pregnant when this incident took place, and as a result of the physical and mental torture, I suffered a miscarriage”.266

Baljeet’s son and daughter tried to help her:

“My… son and daughter went to the lawyer and informed him about my disappearance. They also went to the police station, but were scared away by the policemen. My children did not lose hope and went to the lawyer to inform him”.267

In response to the lawyer asking for her production by the police, the police filed a false case against her and opposed her application for bail. As a result she feels hounded by the police and believes her life is in danger:

“The lawyer filed a writ petition in the court asking them to show me. The police from Chandigarh very cleverly took me to the court… Three high-ranking Indian Police Service officers from Chandigarh and the Punjab questioned me. My case is still going on. One of the courts let me out on bail; however, the police questioned the bail issued by the court and tried to put me behind bars. My life is still under threat”. 268

Baljeet is deeply traumatised by the torture she suffered. She expressed her desperation at the way that the State has failed to protect her from the police:

“They tortured me a lot. I hate my life. There is no respect for human rights in our country; no one gets their human rights. Our independent nation cannot guarantee us our human rights. My only appeal to all of you is that whoever has suffered at the hands of the police: Please do not stay quiet about it”.269

Impunity

Like the officers that Baljeet Kaur identified, many members of the police force routinely use torture in the course of criminal investigations. Despite constitutional and legal protections and the efforts of the Supreme Court – particularly in the case of D.K Basu v. State of West Bengal– the unacceptable gulf between theoretical laws and standards and their practical realisation is all too apparent. Contributing to this dismal state of affairs is the impunity enjoyed by the police officers who engage in these practices. As noted above, although police officers who torture citizens are in theory subject to prosecution for using torture against detainees, in

265 Full testimony of Baljeet Kaur available at page 323266 Full testimony of Baljeet Kaur available at page 323267 Full testimony of Baljeet Kaur available at page 323268 Full testimony of Baljeet Kaur available at page 323269 Full testimony of Baljeet Kaur available at page 323

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practice, the Government often fails to hold them accountable. This is a recurrent theme throughout the testimonies that victims and witnesses gave at the Independent People’s Tribunal.

Complaints about torture and death in custody resulting from torture are not given due attention in most cases because of the closed and protective police culture. Upon receiving complaints, the police often fail to prepare a First Information Report. Permission to prosecute has been regularly refused. For investigations or prosecutions, evidence is generally difficult to obtain, because the perpetrators and members of the police close to them refrain from co-operating. Victims find it difficult to identify the perpetrators, and co-prisoners tend to be too fearful to become prosecution witnesses.

Torture in India is widespread, unaccounted for and rarely prosecuted. It contributes to a state of anarchy and lawlessness in many parts of the country, as the experiences of victims and witnesses at the Independent People’s Tribunal demonstrate. The Government relies heavily on the police, security forces and armed forces to suppress unrest through violent means. However, these tactics are counterproductive, as the use of force to suppress dissent and combat terrorism serves to fuel rather than combat the cycle of violence.

Torture as a means of suppressing civil dissent

“Elitism is deeply rooted in the culture, and the police are deliberately made to function in ways that support the interest of the elite classes, in the name of order. In such a situation, subordinate officers become pivots in the administration and begin to prey upon the very groups they are drawn from”.270

Alongside the police force, the main perpetrators of torture in India are other law enforcement officials, such as paramilitary forces, Forest Department officials and those authorities that have the power to detain and interrogate individuals.271 The use of torture to suppress civil dissent or investigate alleged criminal activity is tacitly supported by senior police officers, bureaucrats, politicians and the judiciary in the mistaken belief that it is necessary for effective maintenance of law and order.

Retaining its colonial characteristics, the culture of the Indian Police Force remains principally concerned with maintaining order and supporting the interests of the ruling classes at all costs. As K. S. Subramanian pointed out: “The basic job of the police is to collect intelligence against people and to maintain order, with or without law”.272 The poorest and most vulnerable groups are most susceptible to police violence when they threaten the status quo. In areas of conflict and so-called “disturbed areas” there is a fundamental breakdown in the operation of legal guarantees flowing from the Indian Constitution.

Former Indian police officer Arvind Verma observed that:

“‘Order maintenance’ translates into the perpetuation of existing social and political order. The policing objectives are to maintain this status quo. Accordingly, any attempt by the lower

270 Supra, footnote 103271 Supra, footnote 259 272 Full deposition of K. S. Subramanian available at page 399


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classes to change their situation threatens the existing ‘order… When the landless and the poor demand better wages or working conditions for themselves, their actions ‘disturb the order’… In this climate, police officers target those seeking to transform the prevailing conditions”.273

A systematic pattern of top-down oppression is evident in all areas experiencing sustained civil unrest. India has one of the largest police forces in the world.274 In areas that experience civil unrest, the Central Government simply sends more police, army and security forces to contain the rebellions. Between 2001 and 2007, the budget of Central Police force doubled from 94 billion rupees to 189 billion rupees.275 Both prior to and following Independence, the rulers have characterised rural tensions as “law and order” problems and suppressed them through violent means, rather than addressing the root causes of the problem – entrenched socio-economic inequalities.

The use of torture, in addition to extra-judicial killing and forced disappearances, are a means for the central and state governments to exert their power over citizens and to crush those who air their opposition to government policies, such as those that result in the loss of land and livelihood in the name of economic development. Torture is also used against those who seek self-determination and independence from India. From the struggles of the landless, Adivasisand Dalits to find a political space in which their voices can be heard to the communal violence against Muslim populations to the desire for self-determination in the Northeast and the Kashmir valley – all are dealt with by a government preoccupied with the maintenance of “law and order” at any cost. In militarised areas, torture is also used by police, military and paramilitary forces as punishment for resistance to military action.

Methods of torture“We don’t torture anybody. I can be very categorical about that. Whenever we have had complaints of torture, we’ve checked and we’ve not found it to be true”. – Former Prime Minister Rajiv Gandhi276

One of the most disturbing findings that emerged out of the Independent People’s Tribunal was the alarmingly similar methods of torture used throughout the country. At the conclusion of the Tribunal, Judge C. Upendra pointed out that:

“For the last two days, we have been hearing about the different kinds of human rights violations, tortures and troubles created by the army, the police and others. From whatever the witnesses and the persons who represented them said, it seems to me that in India all these tortures are very similar. I think there is some kind of police guidebook; otherwise, how can torture be the same all over India? In Tamil Nadu, Kashmir, Manipur and elsewhere, they must be following a “Bible” in order to produce such tactics, ones that use a uniform mode of torture and execution”.277

273 Supra, footnote 103 274 Supra, footnote 3275 Supra, footnote 87 276 Former Indian Prime Minister Rajiv Gandhi speaking in January 1988 as quoted in India: Torture, Rape and Deaths

in Custody. New York: Amnesty International, 1992, page 1 277 Full deposition of Judge C. Upendra available at page 376

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Through the testimonies of victims and witnesses, this chapter will highlight the methods of torture that continue to be perpetrated by the police and the armed and security forces. We review both the physical and mental aspects of torture, before looking at the effects that such violence has on victims, including death in police custody. Following this, we will highlight the failings of the judiciary and the medical profession to adequately address torture and deaths in custody. Finally, we will emphasise the importance of medical evidence in documenting and prosecuting perpetrators of torture, an important way to fight the continued degradation of Indian citizens by the State.

The State’s forces employ numerous methods of torture against those it sees as opponents of the State in the various guises of “criminals”, “terrorists” and “disruptive elements”. As pointed out earlier, the police and armed forces torture Indian citizens for a variety of reasons, including to solve criminal cases, as punishments for actual or perceived crimes, and in order to suppress civil dissent. Torture is widespread throughout India and has serious long-term consequences, not only for the victim but for society as a whole.

“The destructive effect of torture on the human psyche and physique also undermines the moral fibre of a society – which must bear responsibility for what it has purposely inflicted on its fellow human beings”.278

Torture is used to humiliate individuals and to undermine and oppress whole communities. Torture has a long history in India, pre-dating the colonial period. Landlords and their associates frequently used torture to extract confessions that they then used as evidence against an accused.279 Although the colonial administration made some efforts to limit the police’s use of violent practices, torture against Indian “subjects” continued during the colonial period in much the same manner as before British rule.280

Common methods of torture used in India include beatings to the soles of the feet and other body parts; breaking bones; sensory deprivation, such as denial of food and water; submersion under water; suspension from the ceiling; burning with cigarette butts; rolling heavy weights across the victim’s body; electric shocks; sexual violence, including rape and sodomy; insertion of objects into the anus; threats of harm and death against the victim or his or her family members. Victims often suffer long-term physical and psychological damage as a result of torture in detention.

Beatings amounting to torture

The most common methods of torture used by the police and the armed forces are beatings using fists, feet, lathis (batons), belts and rifle butts.

278 ‘Treating torture victims’ by Dr. Mary Fabri in Torture: Does it ever make us safe? Is it ever ok? A human rights perspective, Eds. Kenneth Roth, Minky Worden, Amy D. Bernstein, Human Rights Watch, New York: Human Rights Watch 2005

279 In 1855, with the publication of the two-volume Report of the Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency, colonial administrators became uncomfortably aware of the contrived nature of the “truth” produced before magistrates and the police. See: ‘Problems of violence, States of Terror: Torture in Colonial India’ by A Rao, International Journal of Postcolonial Studies, Volume 3, Number 2, 1 July 2001, pages 186-205

280 Ibid.


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Phoolvati and members of her family from Madhya Pradesh were beaten by forest guards near their home:

“My brother-in-law had gone to the fields. On his way back, the forest guards caught him and took him with them. I went to where they had taken him to get him released, but they beat both of us a lot. The forest guards fired a lot of shots and hit us with the butts of their guns. They broke my hand, and it is still injured. My brother-in-law’s head was badly injured, and his jaw was fractured. They broke his hand, too, and fired shots at him”.281

Beating a victim on the soles of the feet is a common method of torture. It is excruciatingly painful, but – importantly for the perpetrators – the physical evidence is difficult to detect. It often causes long term damage to the victim. In a case of mistaken identity, 22 year-old Prem Kumar from Karnataka was picked up by the police while he was working on a farm:

“He was taken to the local police station, where he was detained for ten days and tortured on a daily basis. His elder brother finally came and took him out of the station and admitted him to the hospital. Then he was examined by the doctors, who found that both his legs and his heels were badly damaged”.282

Prem Kumar’s legs were broken as a result of the beatings he sustained.

Beatings to the soles of the feet severely incapacitate the victim. The small bones and nerve endings in the soles of the feet make the damage particularly painful. He or she is often unable to walk afterwards, and it takes a long time for the feet to heal.

Bhagwan Mahato from Uttar Pradesh was tortured by the police to extract information about a theft:

“They took me to a room where they tied my feet and started hitting me with shoes… and with sticks. They said, ‘You will have to tell the name’. I said, ‘Sir, I don’t know anything’. They beat me even harder on my legs and feet saying, ‘You will have to give the names’. I said, ‘Sir, I am a poor man. I know how to earn money, but I don’t know any thieves’.283

The beating continued:

“There was another room [in the police station] that didn’t have a window. I was taken there, made to lie on a bed, and my hands were tied. After tying my hands a lathi was tied between my legs by two police officers, who hung me up. After that, they started hitting me on my legs. While hitting me, they told me, ‘Tell us the name’”.284

Satish Kumar, a law student from Tamil Nadu, was arrested by the police on the evening of 25 February 2006 on his way home from a temple. He was held in a police station and was slapped and beaten with a lathi. He described what followed:

“It was as if they had made preparations for me beforehand. As soon as I entered the police station, I was handcuffed and beaten. They punched me below my chin and started hitting me

281 Full testimony of Phoolvati available at page 391282 Full testimony of Prem Kumar available at page 275283 Full testimony of Bhagwan Mahato available at page 393284 Full testimony of Bhagwan Mahato available at page 393

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mercilessly. They used cigarettes to burn my hands and poked my eyes with their fingers. They punched me on my shoulder. I kept asking them what crime I had committed, but they never paid any heed to my questions. Everyone in the station beat me mercilessly. I was in no state to protest and became unconscious. They kept splashing water on my face so that I couldn’t even breathe”.285

Witness X from Andhra Pradesh was taken away from his farm by Police Sub-Inspector Vijay Raj and Inspector of Police Vennugopal Rao, who interrogated him about the whereabouts of his sister-in-law, an alleged Naxalite. In the police van, the officers beat him severely with rods on his soles, palms, arms, thighs and back, before taking him to the police station, where the beatings continued:

“They beat me all over my body. They beat me mercilessly with lathis. Afterwards, six police constables came to me and asked me to sit on the floor. I refused. They caught hold of me and forced me to sit on the floor… Two constables caught hold of my legs and pulled my legs apart, and two constables were sitting on either side of me, pressing my thighs, and two of the constables were supporting my body without any movement. Two of the constables were standing on my thighs so that I could not move any part of my body. My body was totally immobilised, and they started beating me on my legs and all over the body”.286

He was tortured in this way for four days. He was also subjected to electric shocks three times during his detention, which led him to lose consciousness.

Umesh from Karnataka was beaten by the police and some men from his village over a property dispute:

“The police [along with the men] came to the field where I was working and, after sending my brother away, proceeded to take me to the station and hit me on the arms, head, legs, and ears. They did not beat me on the way, as they thought that would cause trouble. My ear still bleeds, even though I have taken tablets”.287

After Umesh was treated for his injuries in the hospital, the police took him back to the police station and continued to subject him to inhuman treatment:

“At the station, I was held horizontally in the air, and the backs of my legs were hit severely. I did not stand when they told me to, I did not remove my clothes when they told me to, so they ripped them off me and hit me… I was not allowed to sleep or sit or stand or talk without being harassed physically and verbally”.288

Beatings often have devastating consequences for the victim. Ramshree from Uttar Pradesh was pregnant when the police came to her house to arrest her husband. The police beat both her and her husband. At the Independent People’s Tribunal Ramshree explained what followed:

285 Full testimony of Satish Kumar available at page 375286 Full testimony of Witness X available at page 272287 Full testimony of Umesh available at page 352288 Full testimony of Umesh available at page 352


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explained what followed:

“I said, “I am pregnant; please don't hit me". After hearing this, one of the constables said, “One should kill this Chamariya's [low-caste] baby before it is born and creates trouble". Saying this, he kicked me hard in the belly; due to that kick, I lost my baby. After the police left, the villagers took me to Hardoi hospital, where the dead baby was removed from my womb”.289

Santosh Kumar from Bihar was a footballer for Patna District before six police officers from Fulwari police station arrested him on the pretext of “keeping arms and looted materials”. He was dragged from his house and beaten. When his wife tried to intervene, the police officers hit her and threatened to sexually assault her:

“[It] happened on 27 November 2006. I was sitting in my house at around 11 p.m., when the police came. They knocked on the door and asked me where Santosh Kumar was. I told them it was me; they asked me to come with them. I asked them what I had done. They started to take me away forcibly. When my wife asked them what I was being accused of, they hit her, and they took me away in a private Maruti van to the police station”.290

He was taken to an unknown place and tortured. He was given electric shocks, his teeth were pulled out and his fingers and knees were broken. The police poured petrol on his rectum and inserted a red-hot iron rod into his anus:

“They tortured me so much that my finger, teeth, thigh and other parts of my body are still aching”.291

He was also denied food and water during his detention. The police officers who tortured him threatened to render him incapable of playing football for the rest of his life. They succeeded: The torture permanently damaged Santosh’s knees, thereby rendering him incapable of playing football – his source of livelihood.

Bibi Khatun’s three sons were picked up by the police in Godhra after the 2002 Gujarat riots. She tried to visit them in the police station. At the Tribunal, she described the state in which she found one of her sons when she managed to meet him:

“After a while, two policemen brought my son out, dragging him like a dog. Both his legs were broken; he could not stand. They said, ‘Here is your son, you old hag’”.292

Sensory deprivation

Moirangthem Gandhi Singh from Manipur was subjected to beatings and sensory deprivation when he was detained by the police during a criminal investigation. These are methods commonly used to “break” suspects into divulging information to their interrogators. These practices resulted in his hospitalisation. He described what occurred in the police station:

“The police started slapping me on the back of my head. Then, I was shut alone in a room. It was already dark. I was not given any food or water, even though I asked for some. I didn’t have a single drop of water all night.

289 Full testimony of Ramshree available at page 294290 Full testimony of Santosh Kumar available at page 293291 Full testimony of Santosh Kumar available at page 293292 Full testimony of Bibi Khatun available at page 279

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At around 8 a.m. the following morning, the police [questioned me]. They started beating me with a rod. They beat me on the back of my head and face. After torturing me for a while, I was sent to another room. Even on that second day I was not given anything to eat or drink… I fainted because of the long starvation, as well as from the torture that I had been subjected to. [The next afternoon], I fell unconscious”.293

Simulated drowning

Also known as “water-boarding”, this is a particularly cruel method of torture in which the victim believes that he or she is drowning. Bhagwan Mahato, a fruit-seller, described his terrifying experience in a police station in Varanasi:

“When my legs were in bad shape, they picked me up and told the other officers to get some water, which they proceeded to pour over me. The water was going simultaneously into my nose and mouth. I was unable to breathe, and I was getting angry, because I didn’t know anything, and they wouldn’t leave me. It seemed they were going to kill me.

After they stopped pouring the water, they said, “Now, tell us. Tell us! Why are you facing all this beating? Tell us the names of 10 or 12 people, and we will leave you alone". I told them again that I didn’t know any names. After that, they beat me so much that with each blow my ears were ringing.

After that, again, they started pouring the water. When they knew that the water would overwhelm me and they felt that I could have died, as my nose and mouth were blocked, they stopped pouring the water and said again, “Tell us. Tell us the names of 10 or 12 people, and we will leave you”.294

The police continued to beat him, causing permanent damage to his face:

“After that, when they beat the right side of my face so much that it had been disfigured, they started hitting the left side of my face. After beating me, they said, ‘Now, tell us’. I said, ‘Sir, the truth is, I do not know anything’. After that, they kept hitting me until I was losing consciousness. They must have known that I was about to die, as I kept mumbling and repeating, ‘I’m telling the truth. I don’t know anything’”.295

Electric shocks

A number of victims and witnesses at the Independent People’s Tribunal described the way in which police officers administered electric shocks during their detention.

Mohammad Owesh related the torture that his brother and other men suffered in a police station in Gujarat following the 2002 riots:

“The way that the confession was obtained from the boys was appalling. They were hung upside down and given electric shocks on their genitals. After torturing them, they were asked to sign a blank piece of paper. The boys asked why they should sign: What was their crime? They were told just to sign and that it was the job of the police to write up the crime”.296

293 Full testimony of Moirangthem Gandhi Singh available at page 356294 Full testimony of Bhagwan Mahato available at page 393295 Full testimony of Bhagwan Mahato available at page 393296 Full testimony of Mohammed Owesh available at page 299


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The police used this brutal treatment to extract false confessions from the victims. POTA allowed for the admissibility of confessions obtained by police officers, contrary to accepted criminal jurisprudence. As demonstrated by the experience of Mohammad Owesh’s brother and his companions, the disregard for safeguards that protect detainees led to increased brutality in the country’s police stations. Despite the repeal of POTA, cases that were tried under POTA prior to its repeal still stand.

V. A. Patil from Maharashtra was subjected to a number of torturous methods by the police, including the use of electric shocks, after he made complaints that his brother’s murderers were intimidating and threatening him:

“They [the police] falsely accused me of various crimes, and on this premise they kept me at the police station. I was kept at the lock up for 21 days. Inspector Ghuge, Dattaray Mandlik, Suresh Pawar, Uttamrao Salukhe and Vihswas Pandhare continuously tortured me for 21 days. They also threatened to implicate me of serious offences, which would put me at their mercy for more days. As a result of the torture, my wife was forced to withdraw some of the complaints she had made against the policemen. The torture was very humiliating and painful. They stripped me naked, threw petrol on me, electrocuted me and whipped me with a belt or hit me with a stick. They further threatened to implicate me with nine murder cases”.297

Shooting

In times of civil unrest, the police, army and security forces often use guns to disperse crowds and to break up public demonstrations.298 The shooting of civilians often leaves them permanently maimed or injured. Salim Sheik was shot during the 2002 Gujarat pogrom:

“The incident took place on 25 March. We went to the police to complain about the people who were trying to kill us and asked them to protect us. Instead, the policemen threatened us, telling us to return to our houses or they would shoot us. We asked, ‘Whom could we turn to in that case?’ But they did not listen to us. We decided to leave, but as we were going to get our children from our houses, the police started shooting at us, and I was injured”.299

Javed Pathan was also targeted by the police during the communal riots in Gujarat:

“The [Dargah] riot was taking place four kilometres from my home. I was standing in front of my house. The police came and told me to go inside. A policeman asked me my name, and when I answered that my name is Javed, he shot me; now one of my hands is useless”.300

Farooq Mapkar was shot in a mosque by a police officer during the riots in Mumbai following the demolition of the Babri Masjid in December 1992:

“On 10 January 1993, soon after I went to the mosque for my daily prayer, a police inspector named Nikhil Kapse and his team entered the building. They killed six of the people who were present. After watching all this, I, along with other people in the mosque, rushed to the inner

297 Full testimony of V A Patil available at page 277298 See Chapter 5 for more descriptions of such incidents299 Full testimony of Salim Sheikh available at page 395300 Full testimony of Javed Pathan available at page 370

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section and closed the door while Inspector Nikhil Kapse was still firing. I was shot in my back, but I decided to stay inside the mosque.

After some time, a Central Reserve Police Force [CRPF] officer came to the mosque and asked Nikhil Kapse why he had fired so many rounds and tried to stop him. But the inspector kept abusing me and the other people present there. When the CRPF officer asked us, we came out, but one of us had been shot in the leg. The inspector killed the wounded man on the spot”.301

In addition to shooting in times of riots, the police often used heavy-handed tactics to suppress demonstrators who oppose the policies of the Government. Anuradha Talwar from PUCL described the use of police shooting at Nandigram in March 2007:

“We found, if I give you the number of bullet injuries, 89 bullet injuries, 37 rubber bullet injuries, and 120 hits with a baton. Twenty-six people with teargas shells right on their bodies. Bomb injuries were two. On atrocities on women: 274 women were physically tortured, 46 had their modesty violated, sexual torture on 70 people, rape on eleven people. Fourteen people died, and four people were missing”.302

In his expert deposition at the Independent People’s Tribunal, George Pulikuthiyil, Executive Director of the Jananeethi Institute in Kerala, described the similar use of shooting when the police broke up a dharna (peaceful protest) for the implementation of land reforms at Mudugonda in Andhra Pradesh:

“The policemen fired 180 bullets and shot 56 people, out of which 26 people sustained bullet injuries and nine people died on the spot”.303

For more on the use of police shootings in instances of civil unrest, see chapters four, sfive and six.

Torture inflicted on minors

The police and armed forces also torture children and minors. Fifteen-year-old Sonia from Manipur described to the Independent People’s Tribunal how her leg was fractured when members of the armed forces beat her for interfering when they were arresting her uncle.304

On 14 January 2008, a 16 year-old boy named Raju Kumar Ravi from Jharkhand was beaten by the police so badly that he was unconscious for two days. The beating was in retaliation for a complaint made by the boy’s uncle to the Superintendent of Police that a policeman had killed and eaten his pig. Ganesh Ravi attended the Independent People’s Tribunal on Raju’s behalf and describes the seriousness of the beating:

“The boy has been in the hospital since the fourteenth of last month until today [9 February 2008]. The police tortured him so much that he has only recently been able to walk a little;

301 Full testimony of Farooq Mapkar available at page 344302 Full deposition of Anuradha Talwar available at page 260303 Full deposition of George Pulikuthiyil available at page 362304 See further description of the incident in Chapter 4 ‘Living under AFSPA in the North East’ and full testimony of

Sonia available at page 302


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even that is an improvement on his earlier condition… Raju has spent 25 days in the hospital because of the police thrashing”.305

Mental Torture

Victims and witnesses at the Independent People’s Tribunal reported the coercive methods of mental torture used against victims, including threats of violence and death to their family members.

Shikha Rahi from Uttarakhand described the threats and mental torture that the police inflicted on her father, Prashant Rahi:

“He was threatened that kerosene would be pumped up his anus and he will be tied to slabs of ice. They even threatened him saying that they will bring me from Mumbai and make him rape me in front of everybody, and things like that. For about five days, he was tortured in a similar fashion”. 306

Threats of violence are used to humiliate the victim and terrorise him or her into submission. Mohammad Owesh from Gujarat described the way in which the police threatened his brother in order to get him to sign a false confession:

“When my brother did not sign [a false confession] despite being threatened, they brought my 70-year-old father, who had a bad heart, and told my brother that if he did not sign, then they would torture our father in the same way as he had been tortured. My brother thus felt compelled to sign”.307

Long term effects of torture

Many victims of torture, like Witness X, live in fear that the police will again torture them:

“I fear that I’m here, and I am afraid that as soon as I go back, I’ll be taken by the police”.308

Torture has serious long-term physical and psychological effects, including post-traumatic stress disorder, insomnia, weight loss, flashbacks, weeping and depression in addition to the immediate physical effects of the trauma suffered.

Witness X has not yet recovered from the torture to which he was subjected in custody. He continues to have constant back pain and severe pain in the soles of his feet. Doctors have advised him to get a scan test of his head done, but he cannot afford the cost of the test.

In addition to the physical and mental repercussions of torture, victims often suffer severe economic hardship as a result. Santosh Kumar from Bihar, for example, is no longer able to

305 Full testimony of Ganesh Ravi available at page 290306 Full testimony of Shikha Rahi available at page 268307 Full testimony of Mohammad Owesh available at page 299. Mohammad Owesh’s brother was arrested under POTA.

Under this Act, unlike ordinary criminal law, confessions made in custody were admissible as evidence against the accused.

308 Full testimony of Witness X available at page 272

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earn his living as a footballer due to the irreparable damage to his knees caused by police torture.309

Javed Pathan described the plight of those who were shot and tortured during the Dargah riots of 2005:

“On the day that I was shot, 18 other people were also targeted. Their condition is so bad that the people who lost their legs on that day are now begging. They used to do hard work, and now they can only beg. Six or seven months ago, they [came] to Delhi… and now they are begging in front of the Mosque.

Before, they were rickshaw drivers, and I, too, used to pull a rickshaw. But now I cannot do it anymore. I am not doing anything now. I am just working as a labourer. This is the life I am living”.310

The loss of livelihood due to torture and abuse committed by the police and armed forces often adversely affects the families and communities of the victims, who suffer the additional burden of supporting the victim. Prem Kumar, who is incapacitated as a result of the inhumane treatment he suffered at the hands of the police, described how his aged mother is now financially responsible for him:

“I am handicapped, and I cannot work. My aged mother is now working, and I have to simply stay at home… My mother is now 75 years old, and I was the only breadwinner. Now that I cannot go around freely, I have to depend on my mother, which I do not want. But this is the kind of helpless condition I‘m in now”.311

Sexual violence

Sexual violence has been used as a weapon of war and oppression for centuries. Sexual violence includes rape and sodomy, insertion of objects into the victim’s anus, forced oral sex, rape and gang rape. The aim of rape and acts of sexual violence is often the destruction of the identity of the victim and that of the larger religious, ethnic or cultural community. Rape has been recognised as a form of torture by the International Criminal Tribunal for the former Yugoslavia in a number of its judgments.312

As a method of torture, sexual violence is used to elicit information and to intimidate and punish individuals and communities.313 The prevalence of sexual violence in India, as borne

309 Full testimony of Santosh Kumar available at page 293310 Full testimony of Javed Pathan available at page 370311 Full testimony of Prem Kumar available at page 275312 See for example Prosecutor v. Delalic et al., case No. IT-96-21-T, 16 November 1998 and Prosecutor v. Furundzija,

case No. IT-95-17/1-T, 10 December 1998.313 This has been recognised by the Trial Chamber of the UN International Criminal Tribunal for Rwanda in the Akayesu

case: “Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity and rape in fact constitutes torture when inflicted by or at the instigation of… a public official or other person acting in an official capacity”. Prosecutor v. Jean-Paul Akayesu, Judgment ICTR-96-4-T of 2 September 1998, paragraph 678


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out by the testimonies of the Independent People’s Tribunal, warrants examination as a separate subject, distinct from other methods of torture.

Sexual violence is committed against women, men and children. It is employed as a strategy of repression in areas of conflict in the Northeast and Kashmir; in so-called “disturbed areas” such as Chhattisgarh and Jharkhand; and during incidents of civil unrest, such as Nandigram, West Bengal and the Gujarat genocide of 2002. Rape and sexual violence are used by State actors to suppress dissent and to pressure and punish communities. Sexual violence has serious long-term physical and mental repercussions for the victim, particularly in cases where the families and communities in turn reject the victim as a result of the “shame” he or she – and they – have suffered.

Prosecutions for rape and gender-based violence committed by State actors, such as the police and security forces. are rare in India. In addition to the immunity granted to the police and armed forces under national security legislation, victims of rape and gender-based violence face a number of daunting obstacles in attaining justice. Only a small minority of cases reported at local police stations reach as far as a court hearing. The police are also guilty of aiding violent perpetrators (particularly those in positions of power) by failing to register complaints made by victims, coercing victims into settling the case, threatening and intimidating victims, delaying investigation into the crime and ignoring relevant legal provisions in registering cases. These obstacles are even more acute when the victim brings a complaint against a police officer or a member of the armed forces.

Rape as a tool of state repression

State forces have committed widespread human rights violations in so-called “disturbed areas” during the colonial period and after Independence in 1947. The police and the security forces continue to use rape and gender-based violence as an instrument of terror to attack civilians in areas of unrest such as Kashmir, the Northeast and areas of Naxalite activity. Dr. N. Venuh, the Secretary of the Naga People’s Human Rights Movement, described the horrors inflicted on civilian women following the imposition of the Armed Forces (Special Powers) Act in Nagaland in 1958:

“The women were molested, raped; whole villages were burnt… Take one village: Yenli, in Wakha district. Four girls were taken to the church and raped there in a holy place. Can you believe it? This is the Indian police: They pose themselves as the champions of human rights and allow their forces to rape women inside a church. I think we have to open our eyes today. All of India, especially the people who fight for people’s democratic rights, need to know about that. In one village, 50 women were molested and raped in one day”.314

Rajmani from Venkata Para village in Dantewada district, Chhattisgarh, witnessed the rape of two girls by members of the Salwa Judum, who subsequently falsely imprisoned the girls, accusing them of being Naxalites:315

314 Full deposition of Dr. N. Venuh available at page 273315 The Salwa Judum is a state-sponsored militia, armed by the State to combat Naxalite activity

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“One day, the people of Salwa Judum came to my village and burnt our houses, killed all the males they were able to find and raped all the females they could catch... The Salwa Judum raped two girls, Kumari and Kamli, who were not able to escape, and I witnessed this horrifying experience. I saw that the officers from Salwa Judum rape the two girls and dress them in Naxalites’ uniforms that they had brought with them. They took the girls away and locked them in the police station, declaring both of them to be Naxals. These girls are still in jail”.316

Rama Rao Dora, a convener of Adivasi Mukti Sangathana from Andhra Pradesh, spoke of one incident in which state forces targeted Adivasi women in a campaign of rape and sexual violence:

“On 20 August 2007 at 5 a.m., in the village of the Vakapalli tribe in the district of Vishakhapatnam…twenty police from the Greyhound unit317 came to the village ostensibly looking for Naxalites. They went to the tribes’ hamlets while the males were absent, and eleven tribal women were raped”.318

Rape is a brutal practice aimed at dehumanising the victim. It is employed by state forces to subjugate civilians who protest against their treatment by the State in areas of economic development, displacement and civil unrest. This was apparent in the brutal events of Nandigram in West Bengal in 2007. Nandigram was declared a Special Economic Zone (SEZ) by the State Government of West Bengal in 2006. As a result, land belonging to 25 to 30 villages was in the process of being forcibly acquired by the Government to turn over to developers. The impending displacement of whole communities led to strong resistance from approximately 1,500 villagers in the area. Police tactics became increasingly heavy-handed. In March 2007, police opened fire on unarmed civilians and employed brutal tactics, including rape and sexual violence, to put down opposition to the development.319 State forces employed rape and sexual violence in a systematic way at Nandigram to suppress opposition and punish villagers for protesting against their displacement.320

In the Gujarat pogrom of 2002 Muslim women were targeted for rape and sexual violence. The atrocities committed against women at this time amounted to genocidal rape. The purpose of the rape and sexual violence was to dehumanise a people and to destroy the identity of the Muslim population.321

Sexual violence as a method of interrogation

The use of rape as method of interrogation is exemplified by the brutal treatment that Phoolmani, a 16 year-old girl from Bokaro District in Jharkhand, was subjected to after her

316 Full testimony of Rajmani available at page 348317 The Greyhound Unit is a militia group committed to suppressing naxalism through violent methods318 Full deposition of Rama Rao Dora available at page 349319 See the deposition of Anuradha Talwar at page 260320 For more on Nandigram see Chapter 5321 For testimonies relating to the Gujarat genocide see: Testimonies of Mukal Sinha at page 350, Yusuf Ali at page 367,

Javed Pathan at page370, Salim Sheikh at page 395, Bibi Khatun at page 279 and Charmila Ben at page 298


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father had been tied up and beaten by the police in the middle of the night:

“The police took me to the jungle, which was quite far from the village, and strung me up from a Peepal tree after tying my hands and feet. They said that if I made any noise, they would shoot me. In this way they threatened me.

I asked them what we had done… And I said that we were willing to cooperate with them because we were poor, landless people, who sell Dantan (Neem) leaves to make a living. The police then abused me verbally, accused me of not telling them anything and threatened to beat me up again, which they did until I fainted three times.

When I asked for water, they abused me verbally and refused to give me any, saying that instead they would either spit in my mouth or urinate on me. They hung me upside down and started thrashing me… Then they started to hit me, and I fainted. Before all this, they had put some leaves and the dupatta (scarf) from my salwar kameez in my mouth. Later, they stood on my chest and started kicking me. When I fainted again, three policemen raped me”.322

Ravi from Tamil Nadu is a father of two children. He was called to Needamangalam police station on 1 March 2007 for questioning regarding a jewelry theft worth 45,000 rupees. At the police station, Inspector Mr. Thangavel slapped him while Head Constables Mr. Silambuselvan and Mr. Muthusamy beat him with iron-edged batons. He was stripped half-naked, with his hands tied up behind his back. S.I. Tamilselvi beat him repeatedly with batons on his legs and stamped on his stomach to force him to confess. He was deprived of both food and water, and the police threatened to rape his wife if he did not confess to the crime. He was tortured in this way for five days.

He described one of the other methods they used:

“My legs were spread apart, and they started hitting me and blood started oozing from my anus… My hands were tied again. My hands, as well as my legs, were spread apart, and they started stuffing my anus with chili powder. I was tortured like this for six days, and I could not bear it”.323

As a result of the torture he was subjected to, Ravi lost his hearing and the use of one of his kidneys; he is unable to work. He described his physical deterioration and the shame he feels as a result of the humiliation he suffered at the hands of the police:

“I used to be very strong. I was 55 kilos before, but I’m hardly 30 kilos now. I used to do lots of work, but I can’t do anything now. I have two children, but I feel very bad for them, because I cannot do anything for them; I cannot do any work”.324

Threats, intimidation and bribery in coercion of victims of rape and sexual violence

Policemen offered Phoolmani’s father 50 rupees to keep quiet about the abuse the police had inflicted on him and his daughter; he did not accept the money. The Superintendent of Police

322 Full testimony of Phoolmani available at page 291323 Full testimony of Ravi available at page 270324 Full testimony of Ravi available at page 270

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also threatened Phoolmani not to report what had happened when she approached the police station:

“The Superintendent of Police said that if I didn’t keep quiet, I would be raped again. He told me if I didn’t keep silent, the police would kill me and dump my body”.325

Phoolmani and her father returned home, unable to access medical treatment or file a police complaint. Then, the police from Nawadi came to her house to look for her:

“The Officer-in-Charge told my mother to…stop making any more hue and cry. Since the incident had been published in the paper, the policeman gave my mother 500 rupees. They told her to keep silent, saying that we wouldn’t get any benefit from telling anyone about what happened”.326

As Phoolmani’s experience demonstrates, the police often use a combination of threats, intimidation and bribes to prevent atrocities they commit from being officially reported. The same pattern of coercion is evident in Malti Tudu’s experience.

Aged just ten years old, she was gang-raped by three policemen near her house in Jharkhand:

“On [that] day, she along with two or three friends went to the nearby jungle to collect firewood; her people live near dense jungles. Her village is very far, almost 17 or 18 kilometres to the west of the district headquarters. We had difficulty finding their village. The police roam near the woods on the pretext of catching Maoists and Naxalites. The companions of Malti were Basanti, Chumki, and her brother, Bablu. One of the policemen slapped Bablu and told him to shut up. Then Malti was caught and she was lifted and pushed in a pit, where she was raped. After doing the heinous act, the policemen went off. The children went off to their village and creating hue and cry. She remained in the woods unconscious. After shouts and noises made by the other children, the villagers came inside the woods and found Malti sitting there and crying. Her mother asked her about her condition, and she told her about the entire incident. When the villagers came to know about it, they were outraged”.327

The village women went to the police station and surrounded the accused policemen and Sub-Inspector R. K. Dubey, who was responsible for the police officers. After the villagers told him what had happened, Mr. Dubey gave the villagers money for Malti’s treatment and ran away:

“The policemen asked [us] to keep quiet and get the girl treated. The villagers replied that they would not keep quiet: They would get the girl treated, but they would raise this issue and inform the authorities. Then, the police gave them 500 rupees and ran away”.328

In response to the rape of the 11 Adivasi women in Andhra Pradesh, mentioned above:

“Under the umbrella of Adivasi Mukti Samiti, all the political parties, tribal unions and people’s movements gathered together to protest against the Vakapalli incident… As the mass

325 Full testimony of Phoolmani available at page 291326 Full testimony of Phoolmani available at page 291327 Full testimony of Malti Tudu available at page 271328 Full testimony of Malti Tudu available at page 271


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movements grew, all involved were called to the police station and threatened. They were told not to participate in the Adivasi Mukti Sangathan”.329

The attitude of the police in preventing victims and witnesses from reporting incidents of sexual violence by state actors makes it extremely difficult for women and their communities to receive justice. Communities are often damaged by sexual violence committed against their members; denial of access to the justice system further adds to the injustices they suffer.

Medical professionals’ complicity in police brutality

Medical authorities are often unwilling to treat victims of rape by the police force. After being raped by police officers, Phoolmani sought medical treatment in local hospitals but was refused examination:

“I regained consciousness when my uncle gave me some water. The two policemen had already gone. At first, we were too shocked [to do anything] and lost all hope. I was injured, and we did not know what to do. My father sold his bull and pig to pay for me to be treated at the Nawadi hospital. There, they said I was alright and wouldn’t help me”.330

Malti Tudu, the ten-year-old rape victim from Jharkhand, experienced a similar failure on the part of the medical authorities. On the evening she had been raped, she was taken to the local government hospital to receive treatment, but the doctor refused to admit her. Some political activists heard about the incident, however, and news of the incident spread to the police station. Only then did the hospital admit the girl, and afterwards the police took her statement:

“This incident happened on 24 January 2008, two days before Republic Day. If the villagers had treated the matter lightly, then the police would never have taken any measure. The next day, on 25 January, 600 to 700 Adivasis from six or seven neighbouring villages, gathered around the district headquarters and protested against this incident. Only then some progress happened; otherwise this incident would have remained unnoticed”.331

Social stigma of rape

Individuals who have been subjected to rape and sexual violence often do not approach the police and the courts due to concerns that the victim will be ostracised by his or her own community. The perception that rape brings shame on the victim and the victim’s family persists in many communities and often makes redress extremely difficult to attain. Shashi Bhushan Pathak from the People’s Union for Civil Liberties (PUCL) explained the way in which fear of social stigma prevents parents of children raped by paramilitary forces from taking action against perpetrators:

“In Bhandaiya, a place on the border of Chhattisgarh and Jharkhand, [next to] a girl’s school is a paramilitary camp. In between the village and the school, there is a small jungle. Since

329 Full deposition of Rama Rao Dora available at page 349330 Full testimony of Phoolmani available at page 291331 Full testimony of Ramdev Vishwabandhu available at page 271

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the little girls have to cross the small wood… rapes have been committed against two or three of the children. Unfortunately, we have not been able to convince their parents, because their mentality is that since the kids have been raped, if they come out with the matter it will affect their reputation, and later there will be problems during their daughter’s marriage and their rehabilitation. In society [it] will become difficult; therefore, they do not come forward”.332

Difficulties in reporting cases of rape to the police

Laxmi was sexually assaulted by two policemen with whom her father had earlier argued. She described the difficulties she had in reporting the incident to the police and the way in which the accused attempted to bring shame on her and her family:

“I was admitted in the hospital for three days. My statement was recorded by the police whilst I was in hospital, but there was a deliberate omission on the part of the police to record [the police officer’s] name and involvement in the crime. There was also a deliberate attempt made by the accused to question my morality”.333

PUCL helped Phoolmani to file a police report to investigate her rape by three police officers. She was interviewed by the Director General of Police (DGP), Superintendent of Police (SP) and the Deputy Inspector General of Police (DIGP). It was an extremely intimidating experience for her, particularly since she speaks very little Hindi and was questioned repeatedly by three senior police officers. Her experience, narrated by Shashi Bhushan Pathak from PUCL, accentuates the difficulty she, as many other victims of rape, find in verbalising the dehumanising experience they have been subjected to, particularly in intimidating circumstances:

“When we were at the DGP’s place, she broke down in front of him. Sickened by the repetitive questioning, she asked the DGP if he had a mother or a sister. Please try to imagine the pain a 15 year-old girl was going through while describing the incident. I also asked the DGP hypothetically to imagine if the same had happened to your daughter.

[Addressing the audience] What if the girl was your daughter? Please try to imagine: The Sub-Inspector Pramod Singh raped her first, and then by the repetitive questioning by the DIG and DGP, also raped Phoolmani. Repetitive questioning of such an odious crime is as good as raping”.334

Shashi Bhushan Pathak pointed to the distress caused to Phoolmani and others in her situation when asked to recount in detail the sexual violence inflicted on them:

“The way they asked her every time to narrate the incident had mentally affected the girl. So, I use the word ‘rape’ to describe the way the officers asked her about the incident. They did not even talk about rehabilitating the girl”.335

332 Full deposition of Shashi Bhushan Pathak available at page 292333 Full testimony of Laxmi Nair available at page 326334 Full deposition of Shashi Bhushan Pathak available at page 292335 Full deposition of Shashi Bhushan Pathak available at page 292


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The interrogatory atmosphere in which Phoolmani attempted to file her complaint highlights the difficulties faced by rape victims in reporting abuses of sexual violence and the humiliation inflicted on them by police officers who take the side of the perpetrators.

In areas of conflict and civil unrest, the police force is often unwilling to investigate atrocities of sexual violence. Rama Rao Dora points out the response of the Deputy General of Police upon receiving complaints that 11 Adivasi women had been raped by members of the Greyhound Unit (a state-sponsored counter-Naxalite militia operating in Andhra Pradesh):

“When the women complained, the Deputy General of Police immediately defended the rapes in the press and accused the women of being Maoists”.336

His response is illustrative of the pervasive attitude of state authorities that serious crimes of sexual violence are justified when committed against “opponents of the State”.

The lack of redress available from the State

Phoolmani and the PUCL have not being given any information about what, if any, proceedings will be initiated against the guilty parties and whether her case against the police will ever reach the courts.

Sudha Bharadwaj from PUCL Chhattisgarh related the difficulties faced by victims of sexual violence in attaining justice through the courts, using an example of one woman:

“Leda… persuaded her husband, who had earlier been a Naxalite, to surrender before the police. He was shot dead in cold blood before her eyes, and when she protested, she was gan- raped, kept in the thana [police station] for seven days… Her case had been brought before the High Court. The High Court delayed and dallied over it for such a long time, that [she] was forced, under so much pressure, to take back that case”.337

Having found the police unwilling to investigate the rapes committed against 11 Adivasis by the Greyhound unit in Andhra Pradesh, civil society organisations were forced to take drastic action:

“From 2 to 3 September, hunger strikes were conducted in which the victims also participated. From the 22 to 28 September, the Samiti organised a fast until death. Immediately after this, the tribes went to the State Human Rights Commission, the Women’s Commission, the Scheduled Castes and Scheduled Tribes Commission, and also to the High Court, and filed a petition. As a result, the Human Rights Commission has engaged the Tribes Commission to enquire into the matter. The Commission confirmed that the rape of the tribal women had taken place. The Government prepared a Central Investigation Department report. However, no clear evidence about the rapes appears in the report, and the High Court has dismissed the petition”.338

336 Full deposition of Rama Rao Dora available at page 349337 Full deposition of Sudha Bharadwaj available at page 263338 Full deposition of Rama Rao Dora avaibable at page 349

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This is the stark reality of state authorities’ disregard for the fundamental constitutional rights of victims of rape and sexual violence. When these atrocities are committed by state forces under the guise of “fighting Naxalism” and “maintaining law and order”, the victim is unlikely to see the violator punished for his crime. As long as state actors are protected by legislation which grants them immunity from acts of sexual violence, rape and violence against women and men, such acts will continue to be perpetrated in the name of “state security”. These testimonies are a bleak reminder of the circumstances of impunity in which state actors operate.

Custodial death

Torture in police custody may culminate in the victim’s death. The National Human Rights Commission (NHRC) reported 1,597 custodial deaths in 2006-2007, 1,575 in 2005-2006 and 1,493 in 2004-2005.339 Analysing the statistics of the NHRC, the Asian Centre for Human Rights (ACHR) issued a disturbing finding:

“The statistics of NHRC imply that in the last five years, 7,468 persons at an average of 1,494 persons per year, or four persons in a day, died in police and prison custody in India”.340

As the statistics provided by the NHRC only include cases that are reported to the Commission, they do not represent the full number of custodial deaths; the real figures are much higher.

Although certain legal safeguards exist to prevent custodial deaths, they are not always implemented in practice, contributing to the circumstances of impunity in which the police force operates. For example, when a person dies in or disappears from police custody, Section 176 of the Criminal Procedure Code requires the Magistrate to hold an inquiry into the circumstances of the death or disappearance.341 In practice, however, Magistrates often fail to conduct inquiries, or they hand over the investigation to the police station, where it is unlikely that any meaningful steps will be taken to punish those responsible.

A number of witnesses gave testimonies at the Independent People’s Tribunal regarding deaths of friends and relatives in custody, often as a result of torture.

Police officers tortured Hemraj from Rajasthan so brutally that he died. Hemraj’s brother, Banwari Lal, described how Hemraj was taken from his house by members of the police:

“On 28 October 2007, I was sitting outside my house. My brother was eating his food inside. In the meantime, the police raided our village, and a jeep came to our home. They came to me and asked me, ‘Where is your brother?’ I said he was eating. Two police constables entered our house and dragged him outside. As soon as he was outside, they started to beat him with their batons. I asked them what they were doing. They said, ‘If you want some blows, then

339 As disclosed by the NHRC in response to a Right to Information request filed by Asian Centre for Human Rights. Cited in Torture in India 2008: A State of Denial by Asian Centre for Human Rights at page 7. Available at: www.achrweb.org/reports/india/torture2008.pdf

340 Ibid. 341 The provision also applies to custodial rape


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come here’. They pushed me to the ground and took my brother away in the jeep”.342

Banwari Lal went with a group to search for his brother, Hemraj, but they were unable to find him at two police stations. Some time later, some police officers told Banwari Lal that Hemraj had been taken to Kota. When Banwari Lal saw Hemraj’s body in the hospital, it was covered with bruises on his torso, back, hands and legs:

“We hired a jeep to take us to Kota. There, we found my brother in the emergency ward of the hospital, where he was lying unconscious. We did not know what to do. We asked the doctor for his advice; he said not to worry and that he would get well soon. He had been in the same condition ever since he was admitted, which was a day before we found him. He needed blood and oxygen. The day passed – he was in the same condition the entire day. Then at 4 a.m. the following morning, he died”.343

The police did their best to cover-up the murder and dispose of the body immediately:

“The post mortem was conducted between 10 and 11 a.m. His body was taken away in an ambulance, but at the crossroads, the police stopped it and moved his corpse to a truck. When we asked what they were doing, a policeman said that they were going to cremate the body. I told them that we needed to take the body to the hospital again. They asked me: “What will you do with it? Shut your mouth and don’t act smart””.344

The local Member of the Legislative Assembly [MLA] arrived and told the police officers to hand over his brother’s body to Banwari Lal:

“The Superintendent of Police said [to the MLA], ‘What will you do? You are teaching me? I will shoot you.’ Now, if such a person threatens a MLA, what hope does a common man like me have?”345

Banwari Lal’s pleas did not persuade the police officers, and they cremated the body that night, contrary to Hindu rituals. They then went on to dispose of the evidence, making judicial recourse almost impossible.

The husband of Charmila Ben from Gujarat was also killed in police custody:

“The police took my husband from our house on a Friday night at about 6 p.m. and beat him to death; they did not even inform us. Had they told us about his critical condition, we would have taken him to some infirmary and got him treated. This is how the police treat and torture common people”.346

Charmila Ben’s son, Suleiman explained the background to the extra-judicial killing of her husband:

“A case involving violence was registered against her husband in 1982. The police came to her house while her husband was out in 2005 and told her that the 1982 file had been reopened. They told her that she had to present her husband at the police station.

342 Full testimony of Banwari Lal available at page 283343 Full testimony of Banwari Lal available at page 283344 Full testimony of Banwari Lal available at page 283345 Full testimony of Banwari Lal available at page 283346 Full testimony of Charmila Ben available at page 298

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Her husband sold tomatoes; they were very poor. The police questioned the local people and asked them to present Mrs. Ben’s husband before them. Her husband was 55 or 60 years old and had a bad heart. The people told the police that he was a heart patient, to which they replied that they would not do anything to him. The police took Mrs. Ben’s husband to the station that evening, tortured and beat him a lot, and he died there”.347

Gauri Rai from West Bengal described the way in which the Railway police beat her husband, Raju Rai, before arresting and detaining him at the local prison:

“On 11 December, which was a Tuesday, my husband was going to Howrah. On his way, the Satraganchi Railway Protection Force got hold of him and gave him a serious thrashing. They beat him to such an extent that he could not utter a word… I went to the court on Wednesday and saw my husband being taken away to the Howrah District jail”.348

She describes the terrible state her husband was in; unable to speak to her:

“Once I reached there, the police asked me a few questions. Meanwhile, I saw two men holding my husband. I tried to talk to him, and he tried to reply using gestures, as he was not in a fit state to talk. I also asked him if he would like to eat, but he did not say anything. After seeing him, I started crying and I came back home. My husband was a good human being… He did not deserve what he went through”.349

When Gauri Rai returned to police station two days later, she was informed that her husband was dead:

“I went back to the jail on the Friday, and his jailors told me that my husband, ‘Raju Rai’, had passed away. I asked them how a healthy man could die overnight”.350

Gauri Rai experienced great difficulties in retrieving her husband’s body:

“I sent some local boys to pick up the body. The doctors at the hospital refused to hand it over. The next day, I went myself to Bowoo Bazzar to pick up the body, which was where the doctors told me to go. In this way, they made me run around Kolkata for four or five days”.351

The police blackmailed her into making a false statement that her husband had been ill when he was arrested and that his death was due to his prior illness. She was assured that her husband’s body would be returned to her if she made this false statement:

“After that, the police told me to write down that my husband was ill on the day he was arrested, after which he attacked them and was subsequently sent to the hospital, where he succumbed to his injuries. This was what I was asked to do in order to get my husband’s body back”.352

347 Full testimony of Suleiman accompanying Charmila Ben available at page 298348 Full testimony of Gauri Rai available at page 325349 Full testimony of Gauri Rai available at page 325350 Full testimony of Gauri Rai available at page 325351 Full testimony of Gauri Rai available at page 325352 Full testimony of Gauri Rai available at page 325


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Gauri Rai did not comply with their demands, and her husband’s body was ultimately returned to her. The marks of his torture in custody were evident:

“I questioned their logic as to how a healthy man could fall ill in a matter of a few days, and I refused to sign. Finally they brought the body, and we could see some wounds, which we photographed; the pictures are still with us”.353

Despite photographic evidence of the torture which led to his death in custody at the hands of the police, Gauri Rai has experienced great difficulties in having those responsible for her husband’s death brought to justice:

“We still have not got the post mortem report. I would like the men responsible for this to be heavily punished. How do you expect me to survive with two children without a breadwinner?”354

The Magistrate carried out an inquest into her husband’s death, but the matter is still pending. The police officers who tortured and killed her husband have not been brought to justice.

Vasanta from Tamil Nadu had a similar experience. Her husband died in hospital as a result of injuries sustained in police custody:

“My husband was taken into police custody and tortured on 22 May 2007. I was at home and didn’t know what had happened to him… Due to some bad feeling towards us, the head constable tortured my husband for no reason... Jaideep from the panchayat, who is also friend of the police, worked with them to torture my husband”.355

Vasanta’s husband was taken to the hospital, and she was not allowed to see him. In attempts to cover-up his death in custody, the police told her that he had committed suicide by taking poison, and they disposed of his body:

“My husband was in the hospital. I was told that he had consumed poison. I went to hospital but I wasn’t allowed to see him. The police officials disposed of his body themselves”.356

His body was brought to his hometown the next day. A large crowd of policemen carrying lathis and guns surrounded the body and did not allow anyone to see it. They buried the body quickly and without allowing a post mortem to be conducted.

Vasanta’s attempts to seek justice have been thwarted at every turn:

“I approached the District Collector, who ordered a post mortem. The doctors said that the body was too decomposed to conduct one; the doctor vindicated the other police officials.

I'm now a widow with four children. What I will do in the future? For the record, a petition has been filed before the court; it is still pending”. 357

353 Full testimony of Gauri Rai available at page 325354 Full testimony of Gauri Rai available at page 325355 Full testimony of Vasanta available at page 297356 Full testimony of Vasanta available at page 297357 Full testimony of Vasanta available at page 297

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Baleshwar Prasad Yadav, the son of Maheshwari Devi, was killed by the police in a police station in Bihar:

“My son was arrested from home and was thrashed by six policemen. They took him to Dhanariya police station. When we went to check on him, we were driven away. The police asked for 50,000 rupees as a condition for releasing him. I told them I was poor; I wouldn’t be able to come up with 50,000 rupees. They said they would kill my son if I didn’t give them the money. He was thrashed to death in the station”.358

Shyam Babu Prasad, a friend of Maheshwari Devi, gave more details regarding the circumstances of Baleshwar Prasad Yadav’s death in custody and the alternative version of events given by the police:

“Some police officers arrested her son…in a false case of robbery or theft… The police say that the village people beat him because he was a thief and we went to the place where the incident had happened and [took] Baleshwar to the hospital. But this is not the truth; actually, the police beat him [to death]”.359

The police tied Baleshwar Yadav upside down in the police station. He was stripped naked, beaten, scorched with hot water and had liquid poured into his anus. According to the post-mortem report he was dead by 6:30 p.m. due to severe injury, breathing problems and heavy loss of blood.

Shyam Babu Prasad accompanied Maheshwari Devi to the Patna Medical College hospital:

We went to the PMCH to collect his body. A police officer there told me that he would kill me, too, if I asked for the body. We decided to stay and finally we got Baleshwar’s body on 28 May”.360

Shyam Babu Prasad related the difficulties that the family and friends of Maheshwari Devi have experienced in having custodial death investigated:

“Baleshwar’s wife has made a written complaint to the District Superintendent of Police (DSP) of Masaudhi. We have made a complaint to the Human Rights Commission also. We have sent all the documents to them, but nothing has been done until now. We should get justice, but we are not getting any”.361

Repeated attempts at bringing the case to light have resulted in threats and intimidation from the police. In addition to filing a case against Baleshwar’s wife, who has sent a complaint to the District Superintendent of Police, the police have attempted to muzzle the efforts of Shyam Babu Prasad to help Baleshwar’s family to gain justice:

“I was also booked under two cases: No. 189 from 16 September 2007 and No. 209 from 4 October 2007. I was also threatened that if I helped in this case, I would be killed. Still, I have

358 Full testimony of Maheshwari Devi available at page 304359 Full testimony of Shyam Babu Prasad available at page 305360 Full testimony of Shyam Babu Prasad available at page 305361 Full testimony of Shyam Babu Prasad available at page 305


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given the District Magistrate a letter containing information about this case. I will include a copy of it with the other documents here”.362

Vijay Kumar is from Karnataka. His brother, Krishnamurthy, was tortured to death in police custody on 13 August 2006. Krishnamurthy had been having lunch with two friends who were visiting him from Mysore. They had gone to the Landmark Hotel. While they were there they had had an argument with some men at a neighbouring table including a police officer in plain clothes. The matter was resolved and Krishnamurthy and his friends left to walk home. On their way they were stopped by some policemen outside the police station. Vijay Kumar describes what happened next:

“The police told them that they had received a complaint about Krishnamurthy and the police asked them to come into the station. All three of them went into the police station. My brother was put in the lockup. The other two were released because they were from Mysore. They paid the police 3,000 rupees”.363

Krishnamurthy managed to phone a friend and tell him that he was detained in the Bemalli police station and had been very badly beaten. Vijay Kumar went to find him:

“When we went to the police station and asked for Krishnamurthy they said that there was no one called Krishnamurthy. When we insisted saying that my brother has called us from the police station they told us that there was a complaint from the Landmark Hotel and the Police Superintendent had gone to enquire. They had received information that there was a fight at the hotel and they had sent the policeman there but he has not come back”.364

The police then changed their story a number of times before saying that he was in a vehicle near the police station. Vijay Kumar and his friend went to find him:

“When we went to see whether my brother Krishnamurthy was in the vehicle we found that he was laid down behind the vehicle. He was…dead”.365

Vijay Kumar tried to file a complaint at the police station but the police refused to, saying that there were no witnesses to prove that he had been killed by the police:

“The SP to whom we complained said that there is no eye witness to our brother having been killed by the police. We told him that there are two witnesses. The Inspector said: “You talk to them now, and see what they are saying now””.366

Krishnamurthy’s friends who had witnessed him being put in the police lock up were themselves detained by the police in efforts to silence them regarding the custodial death:

“These two witnesses were kept in the police station for two days and were told to say what they were tutored to say”.367

362 Full testimony of Shyam Babu Prasad available at page 305363 Full testimony of Vijay Kumar available at page 340364 Full testimony of Vijay Kumar available at page 340365 Full testimony of Vijay Kumar available at page 340366 Full testimony of Vijay Kumar available at page 340367 Full testimony of Vijay Kumar available at page 340

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Vijay Kumar found that no lawyer was willing to take up the case against the police:

“Although the killing of my brother in custody was widely reported in the press, still we found our self unable to get any help.

We wrote to the Home Minister, Chief Minister and Director General of Police, all in vain”.368

In the end Vijay Kumar has received help from a human rights organisation. His case is currently pending before the NHRC who he is relying on to receive justice for Krishnamurthy’s death.

Impunity

As the testimonies of Banwari Lal, Gauri Rai, Vasanta, Maheshwari Devi, Shyam Babu Prasad and Vijay Kumar illustrate, police forces across the country use demands for money, threats, and the filing of false cases to terrorise the families of victims of custodial deaths.369 The police in these cases have acted with total impunity, safe in the knowledge that it is unlikely that they will ever be held to account for the deaths they cause. This arrogance stems from a number of factors that enable the police to commit atrocities without fear of punishment.

First, Section 197 of the Code of Criminal Procedure provides that the sanction of central or state governments is required to bring criminal prosecutions against police officers. This provision is a serious stumbling block to the successful prosecution of police officers. While approximately 1,500 people die in custody each year, the successful prosecution rate of those responsible is negligible: Only four police personnel were convicted in 2004 and three in 2005 for causing the deaths of individuals in custody.370

Despite a number of high-profile Supreme Court judgments setting down guidelines to prevent the use of custodial torture by the police, the judiciary is largely ambivalent towards the torture of those suspected of criminal offences. Investigations into custodial deaths are mandatory under Section 176A of the CrPC. In practice, however, such investigations are usually held only in cases in which a death in custody leads to public outcry. When instances of extra-judicial killings and custodial death come to light in the media or through vigorous campaigning, the state government generally resolves to conduct an inquiry into the incident. Only in relatively high-profile cases does the central or state government prosecute the police officers concerned. High-profile cases are not generally those that involve the poor and the dispossessed or suspected “terrorists” and “Naxalites”. Again, it is the poor and marginalised sectors of society that are the most severely affected by the Government’s policy of willful blindness towards extra-judicial killings and deaths in police custody.

Even if the central or state government does sanction prosecution of a police officer for a custodial death or extra-judicial killing, serious obstacles to justice remain. As the U.S. State Department highlights: “Court action in cases of extra-judicial killings is slow and

368 Full testimony of Vijay Kumar available at page 340369 Full testimonies available at pages 283, 325, 297, 304, 305 and 340370 Supra, footnote 339, page 99


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uncertain”.371 The experiences of victims and witnesses at the IPT reflect this. Across India, cases of custodial death have been pending for many years.372 The courts have displayed some reluctance to pass judgment on custodial deaths. This may be due to their concern to avoid cases that involve alleged terrorists or “disruptive elements” and to go against the wishes of the Executive. The South Asian Human Rights Documentation Centre (SAHRDC) pointed out in its written statement submitted to the United Nation Economic and Social Council in 2003 that:

“The failure to ensure that cases of extra-judicial killings are concluded within a reasonable period of time contributes to the climate of impunity that allows extra-judicial killings to continue to occur throughout India”.373

The climate of impunity described by SAHDRC in 2003 remains today. The National Human Rights Commission (NHRC) has not been effective in putting an end to custodial deaths. This is due to the fact that the recommendations made by the NHRC are not binding on any body, governmental or otherwise. The NHRC collects and publishes statistics on extra-judicial killings and custodial deaths and has issued guidelines to the Central Government to prevent incidents of extra-judicial killing.

The blame for the continued use of murder as a tactic to prevent crime and to deal with alleged criminals lies firmly with the central and state governments. The Indian Government has ignored repeated calls to abolish the protection from prosecution granted by Section 197 CrPC and has not taken steps to implement the recommendations of the NHRC to tackle extra-judicial killings.

The Supreme Court did, however, attempt to address the continued use of extra-judicial killings in September 2006, when it directed state governments to set up independent police complaint authorities to investigate serious complaints against the police. It remains to be seen whether the directions will be successfully implemented in practice.

Impunity: Lack of judicial notice

Victims and witnesses at the Independent People’s Tribunal repeatedly described neglect on the part of the judiciary to address police brutalities.

Under Section 167(2)(b) of the CrPC, a magistrate may not authorise the detention of an individual unless the accused is produced before him in court. One of the purposes of this provision is to ensure that the detainee has not been subjected to torture or physical abuse during the proceedings. Furthermore, in the 1983 case of Sheela Barse v. State of Maharashtra the Supreme Court clarified that:

“the magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreatment in the police custody and

371 ‘India: Country Report on Human Rights Abuses’, US State Department, New York: 2002.372 See for example the testimony of Mohinder Singh from Punjab who has been waiting for 18 years to have the case of

his son’s murder and subsequent disappearance decided by the High Court, available at page 384 373 Written statement of SAHDRC before the United Nations Economic and Social Council, E/CN.4/2003/NGO/159, 15

March 2003 Available at: www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/f26aa935c6d3e572c1256d030052f475?Opendocument

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inform him that he has [the] right under Section 54 of the CrPC to be medically examined”.374

Despite these legal provisions, magistrates often turn a blind eye to abuses committed by the police in custody. Detainees are regularly threatened by the police to refrain from making complaints of torture and are brought before magistrates by the same police who have been responsible for their interrogation and torture. Victims and witnesses at the Tribunal repeatedly described the judiciary’s failure to address the brutalities inflicted by the police. Satish Kumar, a law student from Tamil Nadu, described the way in which the Magistrate, witnessing his poor physical condition as a result of being tortured, sent him to hospital. The Magistrate did not, however, take steps to investigate or bring action against the police officers responsible for his injuries.

“The next morning, while I was unconscious, the police attached me to drips and gave me some treatment. That afternoon they took me to the Magistrate, where I was asked whether or not I had been informed that I had been arrested under Section 307 of the Indian Penal Code. The Magistrate noticed my condition and, instead of remanding me, sent me to the government hospital. I did not receive proper treatment in that hospital, so I went to a private one, where I stayed for 35 days. After my release, I approached the Regional Transport Office, the Collector, the Home Secretary and the State Chief Minister, but no one did anything”.375

Mohammad Owesh from Gujarat explained how after his brother was brutally tortured in police custody and forced to sign a “confession”, his brother felt sure that the judge would help him receive justice. He related the devastating consequences of this false hope:

“When at last he was taken to court, he finally had some hope that he would get justice. He thought that if he told the truth, then there would be some hope of getting justice.

He said to the judge, ‘Sir, they have made me sign a blank sheet of paper. We have not done this crime. They tortured us for four months and forcefully made us confess to this crime’. Upon hearing this, the judge said to the policemen… ‘How did you prepare them? Go and prepare them properly before bringing them here’.

The policemen took them away and told them that they had warned them not to talk rubbish. They thrashed and tortured them for another eight hours. At that point, the boys lost all hope”.376

If judges do not protect victims of torture who come before them, it is difficult to see who will. In this case, Mohammad Owesh had faith in the judiciary to ensure that justice was served. The judge failed to protect him from his tormentors and simply handed the prisoners back to the police.

Shakeel Ahmed, a lawyer from Maharashtra, discussed the role of the judiciary in protecting the police forces from prosecution. He represented Farooq Mapkar, who was shot at and

374 Sheela Barse v. State of Maharashtra AIR 1983 SC 378375 Full testimony of Satish Kumar available at page 375 376 Full testimony of Mohammad Owesh available at page 299


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injured by police gunfire during the 1992-3 Mumbai riots,377 but met serious opposition from the judge when he tried to blame the police for his injuries on the court record:

“When I was defending Farooq in the Sessions Court, one witness testified that he [Farooq] was injured by ‘police fire’, but the court omitted the word ‘police’ in the record. When I protested against this, the court did not agree that there had been any omission.

When I checked the record during the next hearing the word ‘police’ was missing. I raised the issue again, but the court suppressed my argument by claiming that I did not want to continue with the trial, which was why I was making a disturbance, and threatened to file a complaint against me with the Bar Council.

When I again requested that the word ‘police’ be included in the records, the court threatened me and asked me why I was behaving like King Harishchandra (an ancient Hindu king famous for being the ultimate upholder of truth and morality)".378

Failure of medical authorities to provide treatment to torture victims

As with victims of sexual violence, victims of police torture often face serious difficulties in gaining access to medical treatment for their injuries. This is partly due to the reluctance of doctors and nurses to involve themselves in cases against the police and partly due to intimidation from the police not to treat victims.

Dr. S. D. Singh, a Kerala-based doctor who set up the Torture Prevention Center for the treatment of torture victims, shared his opinions on the ambivalent attitude of doctors and nurses towards police torture:

“Medical professionals are reluctant to work with the victims of torture – it is not a money-making business! The medical profession in India is not supportive of torture victims, and sometimes the medical professionals even go against medical ethics, supporting the perpetrator”.379

This is the experience of many victims and witnesses at the Independent People’s Tribunal.

Intimidation of medical professionals by the police

Police officers responsible for the torture of victims often intimidate both the victims and the medical professionals they approach into neither receiving nor giving medical treatment, respectively. One reason for this is that doctors are obliged to write a medical report on the patient’s injuries and to diagnose treatment. These are official records that victims can use in the courts to bring perpetrators to justice and secure compensation. It is in the police’s interests, therefore, to ensure that such vital evidence against them is not documented.

Phoolmani, who was raped by three police officers, describes a hospital’s refusal to examine her and the threats made against her by the Superintendent of Police:

377 Full testimony of Farooq Mapkar available at page 344378 Full deposition of Shakeel Ahmed available at page 360379 Full deposition of Dr. S. D. Singh available at page 335

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“My father sold his bull and pig to pay for me to be treated at the Nawadi hospital. There, they said I was alright, and wouldn’t help me. From there, we went to Bokaro and then to Kachahari, where the Superintendent of Police said that if I didn’t keep quiet, I would be raped again. He told me if I didn’t keep silent, the police would kill me and dump my body”.380

Phoolmani’s unsuccessful attempts to receive treatment at different hospitals is echoed by Ravi’s description of being moved from one hospital to another before he was finally treated for the injuries he had sustained in police custody:

I was taken to the hospital attached to the jail. The doctor there said there was no use in keeping me there and referred me to the hospital in town. That hospital transferred me again, and from there I was transferred to a hospital in Chennai. I was given treatment there and then went home”.381

After being beaten by the police, Umesh from Karnataka tried to find medical treatment. His attempt was thwarted by the police, who intimidated doctors into refusing to treat him:

“I went to the local government hospital, but there the police told the doctors not to treat me and told me to go the police station”.382

Santosh Kumar, who was in need of medical treatment as a result of the torture to which he had been subjected in police custody, was also prevented by the police from seeking treatment:

“On the pretext of taking me to the hospital they confined me for two to three hours. The court had already ordered that I be treated in a hospital, and the jail’s doctor referred me there as well, but due to pressure from the police administration I was not taken”.383

Once medical treatment has been administered, the police often apply pressure on the individual to “hush up” their torture. Prem Kumar from Karnataka described his experience:

“I have been appealing to various organisations, saying that the police have given me some money and asked me not to say that I was taken into custody and beaten up. The police were trying desperately to cover it up. The Karnataka-based organisation brought me to Bangalore, where I was treated in a hospital before returning to my village. The doctors told me that if my legs did not come back to normal, I would be operated on again.

Since then, the police have been in touch with me: putting pressure on me and offering money so that I will not complain. I met the Inspector General of the Mysore District Police, which came to the notice of the local police, who tried to pressure me not to make this a big issue with a complaint to the higher authorities. They asked me simply to keep quiet at home and do nothing”.384

380 Full testimony of Phoolmani available at page 291381 Full testimony of Ravi available at page 270382 Full testimony of Umesh available at page 352383 Full testimony of Santosh Kumar available at page 293384 Full testimony of Prem Kumar available at page 275


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Complicity of medical professionals in police torture

In some instances doctors and other medical professionals write false medical reports in order to cover up police atrocities. Prem Kumar describes what happened when his brother took steps to get him medical treatment for his injuries:

“My elder brother finally came and took me out of the station and got me admitted to a hospital. I was examined by the doctors, who found that both my heels were completely damaged. The police put me and the doctor under pressure to register the complaint as if I had fallen from the roof of the house. This is the kind of report that the police put pressure on the doctors to make”.385

In addition to writing false medical reports, on some occasions the medical authorities are complicit in the torture of victims. Umesh related the complicity of the medical authorities in his torture:

“I went to… a hospital in Haveri, where I was given two injections, which made me unconscious. Without my knowledge, the police took me to Ranibennur. My brother and our lawyer were present there. The police put me in an auto-rickshaw, then onto a bus and took me to a sub-jail.

Subsequently, I was taken back to the hospital in Davangere, where I was kept on the ground floor for two days before being taken somewhere else and then to the prisoner’s ward. Then, a person by the name of Srisail Murthy told the police to keep me in Davangere instead of Hubli. I was tortured; I wasn’t given water and food, and the handcuffs were tightened when I asked to have them loosened”.386

The medical authorities in this case aided the police in the victim’s physical torture: a clear and serious violation of medical ethics.

The doctors at the Torture Prevention Center carry out full medical examinations and write reports according to the standards set out in the United Nations Istanbul Protocol (hereafter the “Istanbul Protocol”) which calls for detailed and quantified analysis of victims’ physical state. Most medical professionals in India, however, do not follow the Istanbul Protocol in their medical reports, and the information they give is often vague and brief.387

Dr. S. D. Singh highlighted the case of a boy who was treated at his centre after being beaten in the police station. The example is illustrative of the importance of thorough examination and report-writing and of the need to treat victims of torture as soon as possible to avoid any doubt as to where, and by whom, the abuses were carried out:

“One interesting case is that of a young boy who came to us. At 2 p.m., he was slapped repeatedly on the side of his head by the Station House Officer in a police station and then released. He went to the nearest government hospital and reached there at 6 p.m. The doctor

385 Full testimony of Prem Kumar available at page 275386 Full testimony of Umesh available at page 352387 The Istanbul Protocol 1999 is the United Nations’ accepted method of investigating allegations of torture and

documenting them. It is accepted by the Indian Medical Association and the World Medical Association

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examined him and wrote a certificate saying that the boy had alleged he was slapped by the police, but there was no evidence of external injuries. The boy came to our Center three days later. I examined him and sent him straight to an eye specialist. The eye specialist examined him and reported that there was a small hemorrhage on the left side of his left eye. I then sent him to an Ear, Nose and Throat surgeon, and he certified that there was a swelling in the left ear. I sent him to a dental surgeon, and the dental surgeon certified that his left molar was loose.

So what does all this evidence show? It is conclusive that there was damage caused to the left side of his face. I wrote a detailed medical testimonial as per the Istanbul Protocol and presented it to the court. Here comes the crucial point: The first medical certificate, written on the evening he was arrested, stated there was no evidence of trauma. I wrote the detailed medical testimonial three days after the event. The Station House Officer came to me and asked what he should do. I said: “I do not know. You have to face what you have done”. He got a good lawyer, and the lawyer managed to help him. How? The lawyer stated that the incident took place on the 15th, and there was a medical testimonial written on the 15th stating that there was no evidence of injuries. There was my testimonial written on the 18th, and so – the lawyer argued – the injuries were caused by someone else, and not his client. So, the timing is crucial. If all these criteria had been included in the first medical testimonial, justice would probably have been done”.388

Importance of medical evidence as a means to combat torture and custodial deaths

The failure of hospitals to examine those that allege violence and rape by state forces is a serious dereliction of their duty to provide medical assistance to those in need. In addition, the failure to examine a witness prevents victims from bringing medical evidence against the police. As Dr. S. D. Singh, the founder of the Torture Prevention Center, pointed out in his presentation, doctors and medical professionals can and must play an important role in highlighting abuses perpetrated by the police and security forces and ensuring that strong evidence is produced in court:

“Unless the doctors and lawyers come together to fight against impunity and to support the victims of torture, it will be possible for the perpetrators to evade justice in the court of law”.389

Medical professionals can play a pivotal role in highlighting atrocities committed by the police through their treatment of victims of torture and the provision of detailed medical reports documenting the injuries sustained. Although we have noted that the judiciary is often reluctant to prosecute members of the police and armed forces, the submission of detailed medical reports of torture makes it difficult to ignore the physical evidence of atrocities. The impunity enjoyed by the police and armed forces may be steadily eroded if firm evidence of torture comes to light more regularly.

388 Full deposition of Dr. S. D. Singh available at page 335389 Full deposition of Dr. S. D. Singh available at page 389


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Dr. S. D. Singh believes that the non-governmental organisations (NGOs) that represent the victims of torture need the full support of the medical profession to bring instances of police brutality to light:

“The medical profession in India is not supportive of torture victims, and, sometimes, medical professionals even go against medical ethics, supporting the perpetrator. Although NGOs work with torture victims, meet them and do the documentation, we [still] need decent medical testimonials. In many cases, proper medical documentation is not presented before the judiciary. NGOs must strive to get the best information and proof they can to present before the court”.390

Perpetrators of torture tend to be the rich and powerful, while victims are invariably poor and ill-educated. This hinders victims from attaining medical documentation, pushing for the prosecution of guilty police officers and ensuring that the courts properly appreciate the evidence of their abuse:

“In our experience, perpetrators are always influential, wealthy and educated. Victims of torture are usually middle- or lower-caste with no political affiliations, no money and low education, and so they are often unable to insist on medical documentation. We also see an unhealthy nexus between the law-enforcing agency, the judiciary and medical association working against the victim”.391

At the Torture Prevention Center in Kerala, Dr. S. D. Singh and his colleagues carry out thorough physical and mental examinations of torture victims, often referring them to specialists to draw up full medical reports documenting the ill-treatment to which they have been subjected. The Center uses a six-point process for gathering information:

1. They meet the victim and record all relevant information;

2. They meet the victim’s family and record their testimonies;

3. They visit other members of the community to collect details;

4. They meet the doctors who treated the victim and ask their findings. They ask them to write a detailed testimonial and provide proper documentation, but often find they are reluctant to do this;

5. They meet the perpetrator to listen to their view;

6. They aggregate the five points together to compile a report.

If there is definite medical evidence and the documentation has been completed thoroughly, the information is ready to present in a court of law.

The doctors at the Torture Prevention Center carry out their examinations and write their reports according to the standards set out in the Istanbul Protocol, which calls for detailed and

390 Full deposition of Dr. S. D. Singh available at page 379391 Full deposition of Dr. S. D. Singh available at page 335

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quantified analysis of their physical state. Most medical professionals in India, however, do not follow the Istanbul Protocol in their medical reports.392

Breach of medical ethics

Doctors and other medical professionals have an ethical responsibility to report torture and ill-treatment and to support victims of torture. In treating victims of torture, doctors in India are often pressured by perpetrators to stay silent or to exclude certain findings in their medical reports. In succumbing to these pressures, they are in breach of their ethical obligations as members of the medical profession. The International Code of Medical Ethics, drawn up in 1949, states that:

“a physician shall, in all types of medical practice, be dedicated to providing competent medical service in full technical and moral independence, with compassion and respect for human dignity”.393

The Declaration of Tokyo of the World Medical Association of 1975 further obliges doctors not to:

“countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offense of which the victim of such procedures is suspected, accused or guilty, and whatever the victim's beliefs or motives, and in all situations, including armed conflict and civil strife".394

The need for medical professionals to support torture victims cannot be underestimated. Medical professionals who fail to properly document abuses in custody (as is the case with the doctor who certified the boy’s fitness above) are falling foul of international standards of medical ethics. As Article 4(b) of the United Nations Principles of Medical Ethics states:

"It is a contravention of medical ethics for health personnel, particularly physicians to certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments”.395

Fighting impunity

“Rarely in cases of police torture or custodial death, is direct ocular evidence available of the complicity of the police personnel, who alone can only explain the circumstances in which a

392 The Istanbul Protocol 1999 is the United Nations’ accepted method of investigating and documenting allegations of torture

393 ‘Handbook of Declarations 22’, World Medical Association, 1985. Cited in Breach of Trust: Physician Participation in Executions in the US’, Human Rights Watch, 1994. Available at: www.hrw.org/reports/1994/usdp/8.htm#P444_68216

394 Declaration of Tokyo of the World Medical Association 1975, principle 1395 Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of

Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, U.N. Doc. ST/DPI/801, 1982


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person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues – and the present case is an apt illustration – as to how one after the other police witnesses feigned ignorance about the whole matter”. – Supreme Court of India in State of M.P. v. Shyam Sunder Trivedi and Ors.396

As noted above, due to their access to potential victims and the ethical requirements of their profession, medical professionals have a particular role to play in the exposure of abuses. In order to ensure that perpetrators of atrocities do not evade justice, medical professionals must play a greater role in documenting and highlighting abuses.

Dr. Singh believes that it is only when doctors carry out full examinations of torture victims and follow the standards set out in the Istanbul Protocol that the impunity of perpetrators can be revoked. He noted that if medical examinations are carried out soon after incidents of torture have occurred, courts will find it increasingly difficult to disregard the evidence:

“The peculiarity of the medical evidence is that, once the doctor makes a complete examination of the entire process and includes all of the specificities in his report, that report cannot afterwards be changed, even by the doctor who first made it. The medical document is a permanent, concrete document, and not even a court of law or anyone can change it”.397

It is clear that medical professionals can play a unique and vital role in recording incidents of abuses so that this empirical and irrefutable evidence can be relied on in court. The medical profession must recognise its ethical obligations to uphold the dignity of torture victims even in the face of pressure from perpetrators to become complicit in their abuse.

396 State of M.P. v. Shyam Sunder Trivedi and Ors 1995 (4) SCC 262397 Full deposition of Dr. S D Singh available at page 389

Chapter 4: Struggles for self-determination

This chapter examines the Sikh separatist (Khalistan) movement for independence in Punjab in the mid-1980s to mid-1990s and daily life under the Armed Forces Special Powers Act of 1958 (AFSPA) in Manipur and in the Kashmir valley. Victims and witnesses at the Independent People’s Tribunal described the ways in which they and their families have been subjected to torture, extra-judicial killings and forced disappearances at the hands of the police and armed and security forces. Given enormous powers by the Central Government in these areas, the State’s forces use violence to put down any suspected activity against the State.

The events described by victims and witnesses from Punjab, Manipur and Kashmir are each grounded in the context of their struggles for self-determination against the Indian State. Each context has radically different origins and demands, yet the Indian State has responded with remarkably similar strategies and tactics to combat the “threat” to the status quo emanating from these states.

The hallmarks of the Indian Government’s response to each of these struggles are:

l the dehumanisation of the population in the popular consciousness by labeling them as “terrorists” and “insurgents”;

l the justification of violence against the population as responsive to a security threat;

l the deployment of central armed police forces to “maintain public order” in so-called “disturbed areas”;

l the erosion of the rule of law;

l the enactment of repressive legislation that:

t gives enormous powers to the police, armed and security forces to arrest, detain and shoot suspected criminals;

t provides immunity to the police, armed and security forces for actions committed under these laws;

t dilutes ordinary principles of criminal law, such as the presumption against bail and allowing a confession given in custody to be admissible against an accused; and

t opts out of constitutional standards and the rule of law.

In this chapter victims and witnesses recount incidents of arbitrary detention and arrest, torture, murder and disappearances at the hands of the police and the armed forces in Punjab, Manipur

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and Kashmir. The laws which govern(ed) these regions – AFSPA, TADA, AF(J&K)SPA and JKDAS – empower the armed forces to use violence and force against the local population to suppress dissent and punish individuals and communities for perceived “anti-national behaviour”. In these areas, the police and armed forces are often rewarded for their “bravery” in killing insurgents by promotions and awards from the Central Government.

Police and security forces are shielded from prosecution for atrocities committed in the pursuit of law and order by a blanket of immunity legislation that makes their prosecution subject to the express permission of the central or state government – permission which is rarely given. The Indian Government is reluctant to implement methods to increase accountability of the police and armed and security forces because it claims that this would affect the morale of forces operating in difficult circumstances.398

The rule of law is being steadily eroded in regions governed by anti-terrorism and security laws. The legal protections available under domestic law and the Constitution to protect citizens from state-sponsored atrocities are often emptied of practical meaning in these contexts.

Victims and witnesses from Punjab and Kashmir described the hardships they experienced when trying to attain justice for relatives that have been murdered or have disappeared. In addition to the complete breakdown of the practical legal guarantees afforded by the Constitution to protect citizens from state-sponsored atrocities, the legal system itself has also proved unwilling to enforce the constitutional rights of victims of atrocities. The courts are reluctant to hear cases of atrocities committed in the name of “fighting terrorism”. To date, very few high-ranking officers and a negligible number of low-ranking officers have been prosecuted for human rights violations taking place during counter-insurgency operations. Many thousands of families and victims have been unable to attain justice for the losses they have suffered.

As long as the Indian State remains committed to the use of top-down oppression and the enactment of laws that “opt out” of the rule of law to combat the desires of certain groups for self-determination, human rights violations in the Northeast and Kashmir will continue unabated. This will serve only to push the oppressed to increasingly violent means, thereby perpetuating the cycle of violence.

Punjab in the 1980s and 1990s

Successive Indian governments have trampled on the fundamental constitutional rights of their citizens in the name of state security and have perpetrated systematic human rights abuses against those they deem anti-national or disruptive. This is nowhere more apparent than in the State of Punjab, which was subjected to a decade of torture, extra-judicial killing and forced disappearances at the hands of the police and military forces between 1984 and 1995.

398 Protecting the Killers: A Policy of Impunity in Punjab, Human Rights Watch, 2007, page 4. Available at: http://www.hrw.org/reports/2007/india1007


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The Sikh separatist movement grew to prominence in Punjab in the early 1980s. The movement grew out of increasing discontent among the Sikh population, including a range of socio-economic grievances related to unemployment, water and agrarian rights. After the Indian army assault on the Golden Temple399 and the retaliatory assassination of Indira Gandhi by her Sikh bodyguards, the Indian Government employed approximately 50,000 police and security forces in Punjab to suppress militant activity in the State and adopt “counter-terrorism” measures.400 Parts of Punjab were declared “disturbed areas”, increasing the power of the armed and security forces to shoot to kill.401

Over the next ten years, the Sikh community was increasingly dehumanised, and tens of thousands of innocent civilians were murdered – targeted as opponents of the State and labeled “terrorists”.402 In Navkiran Singh’s view:

“In Punjab, even if we make a conservative estimate… about 50,000 people have been killed, out of which 35-40,000 are missing…between 1984 and 1994”.403

Draconian legislation

With the Central Government’s introduction of the Armed Forces (Punjab and Chandigarh) Special Powers Act of 1983,404 the Terrorist and Disruptive Activities Act (TADA) in 1984,405

and the powers conferred by the National Security Act of 1980, the police and armed forces were given wide-ranging powers to arrest, detain and kill any individual so much as suspectedof activities supporting the militancy.406 In addition to the draconian powers conferred on the police, armed and security forces, various new laws, such as the Punjab Disturbed Areas Act (1983) and the Punjab Special Powers Act were enacted to ensure that the police were given

399 The Golden Temple in Amritsar is the holiest of Sikh shrines and became the headquarters for the Sikh militants during the early 1980s. In 1984 the Indian army stormed the Golden Temple and thousands of people, many of them civilians on pilgrimage, died in the attack

400 The assault on the Golden Temple took place in June 1984. Indira Ghandi was assassinated on 31 October 1984. The aftermath of her death brought rioting and the targeting of Sikhs in Delhi and other north Indian citizens by angry mobs

401 Dead Silence: The Legacy of Abuses in Punjab, Human Rights Watch & Physicians for Human Rights, 1994 at page 11402 State Terrorism in Punjab by Arunjeev Singh Walia, Tejinder Singh Sudan, Lawyers for Human Rights International,

2001, page 18403 Full deposition of Navkiran Singh available at page 308404 The Armed Forces (Punjab and Chandigarh) Special Powers Act (1983): Section 4 gave the security forces explicit

power to shoot to kill a suspected terrorist. Section 7 of the Act states that: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”

405 Amended in 1987. TADA authorized detention of persons in a “disturbed area” based on mere suspicion, detainees were presumed guilty until proven innocent and the court hearings held in camera Under Section 21 of TADA, detainees are presumed guilty until proven innocent, and Section 20(8) prohibits the granting of bail even if the detainee has not been charged after ninety days. Confessions extracted through torture are admissible in TADA courts. Although TADA lapsed in May 1995, the Indian Government continues to apply it for crimes that allegedly occurred prior to its lapse

406 In early 1984, Parliament amended the National Security Act 1980 to allow a person to be detained without trial for 2 years in Punjab. His detention can then be extended from time to time for an indefinite period for reasons such as “maintenance of public order”, “the security of the state”

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protection from prosecution for abuses perpetrated in the course of the counter-insurgency operation.407

Once again, the State demonstrated its preoccupation with the maintenance of law and order at the expense of civilian lives. In times of crisis, the Indian Government is quick to limit and, in many cases, extinguish, the fundamental rights of citizens. At the root of this perceived need to preserve order at any cost and employ draconian measures antithetical to India’s liberal, rights-based Constitution is the colonial preoccupation with maintaining control over those it perceives as not “deserving” of fundamental rights: a dehumanising philosophy clung to by India’s rulers since Independence.

Rather than conceiving the newly-employed security forces as a “peace-keeping” force to protect the lives of civilians living in Punjab from insurgency-related activity, the police and Indian security forces embarked on a systematic campaign of fear and violence, perpetrating large-scale human rights abuses against tens of thousands of Sikhs.

Amongst the atrocities committed by the State’s police and security forces were illegal abductions, detention without charge, torture, extra-judicial killing, mass illegal cremations and forced disappearances. The violent and torturous methods employed by the police and security forces were sanctioned by the State as an acceptable means of combating political violence.408 Between 1984 and 1995, thousands of people “disappeared” or were killed in fake encounters. Sikhs, particularly young men, were deliberately targeted by the security forces on the assumption that they were linked to the militant movement.

Mohinder Singh related what happened to his son and another young Sikh boy in January 1995:

“My son, Jugraj Singh, was kidnapped by the Punjab police on 14 January 1995 from Mohali, while he was driving his Maruti van. He was taken to the police station and was tortured by the police. In the evening, the police picked up another boy called Sukhdev Singh Sukhi. The Central Intelligence Agency took both the boys to Amritsar, where they tortured them a lot.

Sukhdev Singh Sukhi, who was an amritdhari [Orthodox Sikh] boy, was shaven by the police, who also cut his hair. They forced him to put on Kashmiri clothes. The Punjab police alleged that he was an unidentified Kashmiri terrorist, and they shot him dead. My son, Jugraj Singh, was tortured to death. They just kept the boys for one day only, and they killed both of them on the night of 15 January.

The police took the bodies of both boys to a village near the town of Beas, where they concocted a fake encounter. The police fabricated a story that the two boys were driving in the Maruti

407 Punjab Disturbed Areas Act 1983 empowers any magistrate or police officer to use lethal force against an individual whose actions “may result in serious breach of the public order,” or may contravene any law or order prohibiting the assembly of more than four persons or the carrying of weapons and the Punjab Special Powers Act 1983

408 See: Punjab Disturbed Areas Act 1983, Punjab Special Powers Act 1983, Terrorist and Disruptive Activities Act (TADA) 1987, The Armed Forces (Punjab and Chandigarh) Special Powers Act (1983) sections 4 and 7, National Security Act 1980, (amended 1984) for examples of the extra powers given to the police and armed forces including the explicit sanction of the use of deadly force


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van at night. They were stopped and identified as terrorists and were eventually killed in an encounter”.409

Tarlochan Singh’s teenage son, Kulwinder Singh, was arrested on a number of occasions, and false charges were filed against him. He had become associated with the All India Sikh Students Federation while studying in the 10th grade at a Senior Secondary School in Sector 8, in Chandigarh, in 1985. As a result, Kulwinder Singh and his family were harassed by the police on a number of occasions. The police arrested and detained Kulwinder Singh while he was still at school:

“On 14 May 1985, my son Kulwinder Singh was arrested along with fivce other youths in an encounter with the police about two miles away from Randha, on the right bank of the road which leads from Randha to Ludhiana”.410

Tarlochan Singh persuaded the Governor of Punjab to order an inquiry into the arrests on the grounds that they had no basis in law. As a result of the inquiry, charges against the six youths were dropped. Despite this, they continued to be detained until 12 August 1985 without charge. No charges were brought against the policemen who lodged the false cases.

The police harassment continued, as officers arrested Kulwinder Singh and brought several other false charges against him:

“Thereafter, my son was also implicated in another case, along with four other boys, by the police of Sector 39 Police Station, Chandigarh, and they were sent to Mudha Jail. The judge acquitted [the] four youths, and being a minor, asked my son appear in the Juvenile Court at Chandigarh. But whilst the case in the Juvenile Court was pending, several other cases were also registered against him”.411

The police were determined to eliminate Kulwinder Singh on account of his student activities:

“On 22 July 1989, my son was kidnapped again. I was sitting in my office in Khalsa Senior Secondary School, Kharar, when I received a phone call from a stranger saying that since 11 a.m., House No. 1752, Phase 5, Mohali, had been cordoned off by the police, including some in plain clothes. I contacted my colleagues and reached there in a hurry.

In between house No. 1750 and 1776, which faced each other, I saw my son approaching. About eight or nine policemen who had been in No. 1752 pounced on him. He was blindfolded, his hands and feet were tied with thin cloth, and he was wrapped up in a black blanket. He was dragged into a white gypsy jeep parked outside House 1719. Inspector Amarjit Singh and the other policemen left with him towards the south”.412

409 Full testimony of Mohinder Singh available at page 384410 Full testimony of Tarlochan Singh available at page 281411 Full testimony of Tarlochan Singh available at page 281412 Full testimony of Tarlochan Singh available at page 281

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Kamaljit Kaur’s husband, Sukhdev Singh, has been missing since 1993. He was summoned to Suhana Police Station in March 1993, where he was informed that an IPS officer wanted to meet him:

“After two or three days, my husband had still not returned. My brother-in-law repeatedly visited the police station to enquire about the release of my husband. Every time, he was told that the IPS officer was yet to meet him and that he will be released thereafter”.413

Kamaljit Kaur was informed that her husband had been moved between police stations and detention centres before being returned to Suhana:

“Sukhdev was detained in the Suhana police station until 5 July. My husband’s younger brother, Kesar Singh, along with Waljeet Singh of Panjola village, was illegally detained in that police station for ten days. They were unable to meet my husband for ten days. Thereafter, they were told that my husband has been transferred again back to the CIS in Ropar. Since then, his whereabouts are not known”.414

Lack of accountability for a regime of state-sponsored terror

The thousands of human rights abuses and murders committed by the police and security forces in the context of counter-insurgency operations in Punjab have not been adequately addressed by the Indian Government. In fact, they have barely been addressed at all. This can largely be explained by the finding of Human Rights Watch in its 1994 report on the atrocities in Punjab, that senior police and civil authorities in the State and Central Government have acknowledged that encounter killings and other human rights violations has been widespread in Punjab, but have justified these practices “as the only practical means available for fighting terrorism”.415

To date, Tarlochan Singh has not discovered what happened to his son after he was taken away by the police on 22 July 1989. The police refused to investigate the crime immediately following the kidnapping.

Finding the police unwilling to launch an investigation, Tarlochan Singh sought other means of action in hopes of saving his son:

“We went to the police station at Mohali to file a report, but we were not allowed to do so. Thereafter, we went to Chandigarh and met Sardar Bachittar Singh from that constituency. I explained the whole story to him. Together, we sent telegrams to the higher authorities regarding my son’s kidnapping. The story also appeared in the papers.

I sent representations to the President of India, the Home Minister of India, the Prime Minister of India, and the Governor of Punjab to order a judicial inquiry, but nothing was done. I went to the Punjab and Haryana High Court, where a senior advocate was sitting on the bench. They filed Writ Petition Number 3342, and the High Court ordered an inquiry”.416

413 Full testimony of Kamaljit Kaur available at page 314414 Full testimony of Kamaljit Kaur available at page 314415 Supra, footnote 402, page 5416 Full testimony of Tarlochan Singh available at page 281


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The police and security forces acted with total impunity in this case, as in many others.417 The police’s refusal to allow Tarlochan Singh to register a First Information Report (FIR) and the silence from members of government are hallmarks of the experiences of tens of thousands of families in Punjab. The failure of the Central Government to put a stop to atrocities carried out in the name of “State security” are indicative of its complicity in the degrading treatment meted out to the Sikh population of Punjab during the mid-1980s and 1990s.

Security forces employed brutal methods to silence those suspected of anti-national sentiments. A system of rewards for police for the capture of militants led to an increase in disappearances and extra-judicial executions.418 Human Rights Watch describes the counter-insurgency operation as:

“the most extreme example of a policy in which the end appeared to justify any and all means, including torture and murder".419

Failure of the judiciary

In addition to the complete breakdown of the practical legal guarantees afforded by the Constitution against State-sponsored atrocities, the judiciary has also proved unwilling to enforce the constitutional rights of victims of atrocities and their families against the State. Courts are reluctant to hear cases of atrocities committed in the name of “fighting terrorism”. To date, no high-ranking officers and a negligible number of low-ranking officers have been prosecuted for their crimes. Both Mohinder Singh and Tarlochan Singh have approached the courts, seeking redress for the atrocities committed against their sons; neither has received justice. The testimonies of these men represent the experiences of tens of thousands of Sikhs in Punjab in the mid-1980s and 1990s, some of whom have strived for justice for almost 25 years.

Mohinder Singh testified to the struggles he has faced in attempting to persuade the authorities to investigate his son’s disappearance, despite readily available eye-witness evidence:

“A boy who saw the entire incident met me and told me that he has seen the police kidnapping the boys. We filed his affidavit in the High Court and requested the Court to direct the Central Bureau of Investigation [CBI] to examine the boy as a witness. To this the CBI opposed a lot in the High Court and did not examine the boy”.420

Mohinder persevered with the criminal justice system for 12 years in the hope that it would help him achieve justice. The process was long and arduous:

“The High Court transferred my case to the CBI Court in Patiala. There, the case went on for ten years: for two years in the High Court and another ten years in CBI Court in Patiala. The

417 J F Ribeiro, the then DGP of Punjab police (1984-1988), given authority by the Congress Central Government declared that in Punjab “police accountability is to itself”. Supra, footnote 403, page 12

418 Supra, footnote 402, page 2419 Ibid., page 2420 Full testimony of Mohinder Singh available at page 384

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CBI Court delayed the pronouncement of the judgment for two years. During these two years, I used to be present in the Court every time there was a hearing. But on one unfortunate day, I could not go to the Court, and on that very same day the judgment was pronounced, and the CBI’s request was accepted by the Court. My case was dismissed, and it was all over for me – then and there”.421

The CBI Special Court dismissed the case in February 2006, citing the unreliability of witnesses and the lack of corroboration of events as explained by Mohinder Singh.

Tarlochan Singh experienced similar denials of his right to justice:

“The Sessions Judge from Chandigarh conducted the inquiry, and the report was sent to the High Court indicting all the members of the CIS Patiala. The High Court again directed the Central Bureau of Investigation [CBI] to investigate the matter and to register a case against the guilty persons. At present, charges are pending against a total of 37 police officers in the Sessions Court at Chandigarh. But at present, the proceedings are suspended”.422

Kamaljit Kaur has also spent years trying to discover the fate of her husband, to no avail:

“We have written a letter to the DGP [Director General of Police] of Chandigarh and to the Chief Minister of Punjab; we have not received any reply from them. For two to three years, the police kept on assuring us that my husband was with them and that he would be released soon. In 1996, we filed a writ petition in the High Court. An inquiry was conducted by CBI [Central Bureau of Investigation]. After the investigation…[the] case is now pending in Sessions Court. Until now, the Court has given no decision. I do not know what the outcome of the case will be”.423

As illustrated by the testimonies of Mohinder Singh, Tarlochan Singh and Kamaljit Kaur, it is clear that the courts in Punjab are unwilling to hear cases regarding the atrocities committed by police and security forces. Article 32 of the Constitution of India guarantees victims the right to seek redress for violations of fundamental rights, regardless of the identities of the perpetrators. In failing to hear the cases brought by victims and families who have experienced severe suffering due to a regime of state-sponsored terror, the courts are abdicating their responsibility to uphold the constitutional rights of the citizens of Punjab.

On approaching the High Court with habeas corpus petitions, the families of the disappeared often faced prejudice. Navkiran Singh, a human rights lawyer in the High Court and the Director of Lawyers for Human Rights International, sees the courts’ reluctance to adjudicate on cases involving allegations of torture, killing and disappearances by the police and security forces as reflective of an attitude of nationalism and counter-terrorism. In his view, judges fear that if they convict policemen, the insurgency would return to Punjab, and the police would not be able to fight it.424 This attitude contributed to the branding of the Sikh population in

421 Full testimony of Mohinder Singh available at page 384422 Full testimony of Tarlochan Singh available at page 281423 Full testimony of Kamaljit Kaur available at page 314424 ‘A Judicial Blackout: Judicial Impunity for Disappearances in Punjab, India’, Jaskaran Kaur, Harvard Human Rights

Journal, Volume 15, Spring 2002, page 286


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Punjab as “terrorists” and “threats to national security”, which has led to the denial of access to justice as guaranteed in the Indian Constitution.

Jaskaran Kaur, founder of ENSAAF – a human rights organisation dedicated to fighting impunity Punjab – found that the judiciary’s conceptions of the insurgency in Punjab and of allegations of human rights abuses committed by the police influenced its disposal of habeas corpus petitions filed on behalf of the disappeared:

“Justices provided mitigating reasons, such as the preservation of national security, against upholding fundamental rights… and several justices failed to acknowledge the systematic nature of the disappearances”.425

She goes on to point out that “these attitudes reveal that…justices…[perceived] these disappearances as a necessary evil in combating the militancy”.426 The attitude of the judiciary in failing to address cases brought against state actors strengthens the cycle of impunity in which the police and security forces operate.

Role of the NHRC

In December 1996, the Supreme Court ordered the NHRC to investigate allegations of mass illegal cremations.427 In doing so, the Supreme Court endowed the NHRC with the extraordinary powers of the Supreme Court, as set out in Article 32 of the Indian Constitution, which enable it to order redress for violations of fundamental human rights and to order compensation to be paid to victims. This could have been a turning point in the situation of impunity that has so far characterised the atrocities perpetrated in Punjab. Despite the unprecedented power given to the NHRC by the Supreme Court, the NHRC’s performance has been very disappointing. In 1999, the NHRC chose to restrict its own mandate to just three crematoria in Amritsar District, severely curtailing its potential to attain justice for the majority of victims.428 Furthermore, the NHRC has failed to properly address civil liability and accountability issues by refusing to independently investigate a single abuse or allow a single victim family to testify.429 The NHRC must expand the scope of its investigations across the State of Punjab to ensure that all those whose family members disappeared at the hands of the State's forces and cremated are acknowledged by the State and compensated for their loss.

Another major weakness of the NHRC is its continuing practice of relying on the evidence of the Punjab police to form the basis of its investigations. This is a serious flaw, since many of the allegations are brought against the very police force responsible for gathering the evidence.

The NHRC has played a limited role in the investigation of more than 2,000 cases of murder, forced disappearances and illegal cremation that have been put before it. Its findings have been patchy at best. In 2003-2004, the National Human Rights Commission ordered compensation

425 Ibid., pages 283-284426 Ibid., page 284427 For a detailed analysis of the role of the NHRC in the mass cremations case see supra, footnote 399 428 ‘A vital opportunity to end impunity in Punjab’, Amnesty International, 1999. Available at: www.amnesty.org/en/

library/asset/ASA20/024/1999/en/dom-ASA200241999en.html 429 Supra, footnote 399, page 35

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of 2.5 lakh rupees each for the families of 109 people who were killed in the custody of the Punjab Police between 1984 and 1994. Despite this, the state has made no admission of responsibility. In 2006, the NHRC awarded 1.75 lakh rupees compensation to the next of kin of 1,051 victims in the Punjab mass cremation case for the “violation of dignity” of the dead by the state authorities. These are superficial victories, however. Overall, the record of the NHRC in the Punjab context is dismal. In cases where it has identified abuses, it has refused to address the liability of the accused. As ENSAAF and Human Rights Watch describe:

“Throughout the proceedings, the NHRC has failed to investigate the illegality of individual killings, the role of state security forces or their agents in planning or carrying out illegal killings, other rights violations suffered by family members, or the identities of individual perpetrators, among other issues. Instead, in its orders granting compensation, the NHRC repeatedly stated that it was not expressing any opinion regarding culpability or responsibility for even the limited rights violations that it had identified”.430

There have been serious failures on the part of the central and state governments, the NHRC, the police and the courts to bring justice to thousands of families who have devoted their lives to attaining justice for the atrocities carried out in Punjab. Hundreds of State-sponsored perpetrators have escaped accountability, including all of the major architects of these crimes.431 Like the courts, the NHRC has shown itself unwilling to address the liability of State forces for the atrocities they committed in Punjab against the Sikh population. Many perpetrators of the abuses from 1984 to 1995 have received promotions and currently occupy senior positions in the Punjab police. Their ongoing presence in the police force and the impunity granted to almost all perpetrators have created a system that continues to facilitate custodial abuses, in particular illegal detention and torture.432

In Punjab between 1984 and 1995, the State used notions of “terrorism” and “national security” to attempt to justify the torture and murder of any person suspected of anti-national activities. The lack of accountability for the atrocities carried out in Punjab led the former Punjab police chief, K. P .S. Gill, to publicly demand that laws be passed to grant immunity of police officers or their crimes in recognition of their “service to the State”.433 Here we see the recurring sinister logic: Crimes committed in the name of national security are not crimes, but heroic deeds to be applauded instead of condemned. The victim is not a person – a holder of constitutional rights – but a “terrorist” or “anti-national” undeserving of the protection of the law and State.

The perpetrators of the atrocities in Punjab, instead of being held to account, have been honoured and decorated for their “achievements in protecting national security”. Furthermore, many perpetrators are now championed as counter-terrorism experts. For example, K. P. S. Gill, who during his tenure actively encouraged the brutal methods employed by the police and publicly called for police immunity for all atrocities committed, is hailed as a “super cop” and currently heads an Indian counter-terrorism institute.434

430 Supra, footnote 399, page 37431 ‘Indian: Country Report on Human Rights Practices’, US State Department, Bureau of Democracy, Human Rights,

and Labor, 2006. Available at: www.state.gov/g/drl/rls/hrrpt/2006/78871.htm 432 Supra, footnote 399, page 16 433 ‘Dead End in Punjab’ by Brad Adams, Human Rights Watch 2004. Available at: www.hrw.org/english/

docs/2004/12/17/india9909.htm434 ‘The legacy of India's counter-terrorism’ by Jaskaran Kaur, Boston Globe 17 July 2005. Available at: www.boston.


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Constitutional rights are not fundamental rights in the eyes of the State, but extraneous privileges bestowed on citizens in times of peace and withdrawn in times of unrest and “disruption”. The courts have demonstrated their complicity in this fundamentally flawed understanding of Constitutional obligations. Abdicating their duty to investigate legal complaints and to provide redress to victims of execution, torture and disappearances, the courts have proved themselves accomplices of the State in its concern to promote “national security” at all costs. It is deeply disturbing that the Indian Government views the counter-insurgency operation in Punjab as a model for handling security crises. This is apparent in the ways that it has replicated the model of repression to tackle law and order problems and armed conflicts in other parts of India.435

In its 2007 Country Report on India, the United States’ State Department notes that India has made “little progress” in “holding hundreds of police and security officials accountable for many disappearances committed during the Punjab counter-insurgency and the Delhi anti-Sikh riots of 1984-94, despite the presence of a special investigatory commission”.436

The Indian Government has implicitly encouraged or been complicit in widespread human rights violations against its citizens. The lack of political will to prosecute, at the highest level, those responsible for the terrible atrocities committed against thousands of Sikhs suggests a bleak future for attaining justice for the victims.437

It is clear from the experiences of Mohinder Singh, Kamaljit Kaur and Tarlochan Singh, who have yet to achieve redress for the brutal treatment suffered by their family members at the hands of the police, that impunity continues to prevail in Punjab today.

Living under AFSPA in the Northeast: A case study of Manipur

The Northeast region of India has been subject to internal armed conflict which dates back prior to Independence. State policies, poverty, ethnicity, inequality and injustice are among the root causes of violence in the area. Under the British, the northeastern regions were neglected in terms of economic development and opportunities, and little has been done to address the disaffection of the populations in the Northeast since Independence. One commentator characterises the region today as:

“A myriad of local insurgencies, tribal and ethnic clashes, irredentist claims and problems associated with illegal immigration – all fuelled by narcotics trafficking, the proliferation of small arms and light weapons, and kidnapping and extortion”.438

Following Independence in 1947, ethnic groups who advocated for independence from the

com/news/globe/editorial_opinion/oped/articles/2005/07/17/the_legacy_of_indias_counter_terrorism?mode=PF435 Supra, footnote 399, page 7 436 Supra, footnote 258 437 Ensaaf, Human Rights Watch and Amnesty International have proposed number of potential reforms to the police,

courts, NHRC and state governments in order to address the situation of impunity. See supra, footnote 39, page 7 and ‘India: Breaking the Cycle of Impunity’, Amnesty International 2003 Available at: http://asiapacific.amnesty.org/library/print/ENGASA200022003

438 ‘India’s troubled northeast: insurgency and crime’, IISS Comments, Volume 10, Issue 6, July 2004. Available at: www.iiss.org/stratcom

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Indian State came into conflict with the Indian Government, who strongly opposed their independence.439 In order to contain civil unrest in the region, the Indian Government deployed large numbers of troops to Nagaland in the 1950s. From this period onwards, the population of the Northeast have been subjected to ongoing human rights violations and brutal treatment at the hands of the military.

The Armed Forces (Special Powers) Act of 1958 (AFSPA) was initially passed as a temporary measure to contain a particular uprising of Naga people. Later extended to apply to Assam and Manipur in 1958, it was amended in 1972 to extend to all seven states in the Northeast: Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. Enacted to combat tension originating from demands for self-determination by the Naga people, AFSPAgave wide-ranging powers to the armed forces in the region. It remains in force in much of the Northeast today.440

According to the Ministry of Home Affairs:

“Manipur continues to be affected by the activities of a large number of militant/ insurgent outfits divided on ethnic lines with competing demands. Keeping the situation in view, sustained counter-insurgency operations have been mounted in close coordination between the State Government and the central security forces/agencies. As a result, the number of militants/ insurgents killed or arrested has gone up significantly during the year (2007-2008)”.441

This section draws on the testimonies of victims and witnesses from Manipur to highlight the ways in which individuals in the state are subjected to inhuman and degrading treatment sanctioned by a law that seeks to suppress a popular movement for self-determination.

Introduction of AFSPA

Babloo Loitongbam, the Executive Director of Human Rights Alert in Manipur, gave an expert deposition at the Independent People’s Tribunal. He described the conditions in which AFSPA was enacted:

“It was September 11, 1957, when the Home Minister of this country introduced a Bill – the Armed Forces Special Powers Bill – to deal with what he called the hostile Nagas indulging in dacoitry, robbery and arson and which gives the military forces of this country a blank cheque to do what they want. This was an exception to the rule of a democratic, sovereign, socialist republic and implemented to deal with a dissenting voice. This involved a very small section of society in the remotest corner of the country, on the border with Burma. It did not prick the conscience of the people”. 442

439 For example, the Naga people of Nagaland and parts of Manipur. They did not participate in the struggle for independence and have a separate ethnic identity

440 State officials seek to justify the powers given to the military and security forces on the basis that the Act is only in force in areas where national security is at risk from armed combatants and terrorists and in order to stop the North East states from seceding from the Indian Union

441 Supra, footnote 9, page 16 442 Full deposition of Babloo Loitongbam available at page 370


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He describes the ease with which Parliament concluded that the best way to deal with the dissent in the region was to bestow increased powers to the military forces:

“It took the Parliament about half an hour to make a decision on this: to give blank cheque to the military to kill as many Nagas as possible. There were some dissenting voices in the Parliament, particularly from Manipur, who tried to make sense in the Parliament saying that this is martial law in a different form. They [said that they] had heard stories of tribal women going to the church and being raped and that this Bill will not help the country; it will only make the problems more complicated. But these voices were drowned out, and the Armed Forces Special Powers Act was passed”.443

Retired Judge C. Upendra from Manipur, a panel member at the Independent People’s Tribunal, described the mutual distrust of the military and the civilian population living under AFSPA in Manipur:

“In Manipur... These army people see all the young men as extremists trying to secede from India. So, in the name of curbing extremists they arrest people, torture them, fire at them and kill them. In Manipur, the army, the security forces and the police think that all the young men are carrying arms and arrest them. They do not follow the principle laid down by the Supreme Court, but shoot them simply on suspicion. They shoot them in the head and chest and then put some arms at the place where the victim was killed, claiming that he was trying to attack them. They conjure up fake encounters; then after making an arrest, they take the person to some far off place, interrogate them and torture them. They beat the person, who then usually dies in custody”.444

He went on to highlight the lawless circumstances in which the armed forces behave. Unaccountable for their actions, the violence of the armed forces is not restrained by provisions of law:

“The point is that if things were to be done according to the law, these persons would not lose their lives. But the security forces do not follow any procedures during these arrests”. 445

443 Full deposition of Babloo Loitongbam available at page 370. Also worthy of note are the objections to the Bill voiced in Parliament by Mr. Laishram Achaw Singh, MP from the Inner Manipur Parliamentary Constituency, against the passing of the Armed Forces (Special Powers) Bill. He foresaw the potential damage that would be caused by putting so much power into the armed forces in the area: “This piece of legislation is an anti-democratic measure and also a reactionary one. Instead of helping to keep the law and order position in these areas, if they declare some areas as disturbed areas, it would cause more repression, more misunderstanding and more unnecessary persecutions in the tribal areas. This is a black law. This is also an act of provocation on the part of the Government. How can we imagine that these military officers should be allowed to shoot to kill and without warrant arrest and search? This is a lawless law. There are various provisions in the Indian Penal Code and in the Criminal Procedure Code and they can easily deal with the law and order situation in these parts. I am afraid that this measure will only sever the rights of the people and harass innocent folk and deteriorate the situation”. Quoted in “The Armed Forces (Special Powers) Act – Repressive Law”, Combat Law, Volume 2, Issue 1 (April-May 2003), abstracted from the Manipur Update, Volume I, Issue 1, Human Rights Alert

444 Full deposition of Judge C Upendra available at page 376445 Full deposition of Judge C Upendra available at page 376

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Since the 1950s, successive Indian governments have viewed the Northeast as a troublesome region and have extended the powers given to the police and security forces under AFSPA across the region. As noted earlier, the continued use of AFSPA to suppress civil and political activity is antithetical to India’s post-Independence liberal constitutional tradition. The constitutional rights of the citizens of the Northeast are extinguished in the face of laws that condone and even encourage methods of State terror against the population. AFSPA contravenes constitutional law and international standards, legitimises State terror and attempts to justify torture, extra-judicial killing and disappearances. AFSPA is a law that unilaterally “opts out” of accepted norms of criminal jurisprudence. Its provisions run contrary to constitutional and international law. Under AFSPA, extra-judicial killing is legitimised and immunity is granted to perpetrators of torture and violence.

The rationale for AFSPA is that the armed forces need “special powers” to prevent terrorist activity in the region and to contain independence movements. In practice, however, the police and military forces use the powers and immunity that AFSPA grants to deal with ordinary matters of criminal justice. This highlights that increased powers given to State actors results in increased violence against civilians, fuelling a mutual distrust.

Shri Khumukcham Rocky Singh from Manipur described the violent atmosphere that is a daily reality for many citizens in the Northeast:

“On 30 September 2007, at about 9:30 p.m., when I was operating the video machine in my video parlour, where about 20 people were watching, I heard the sound of rapid firing very close to our location on the northern side. Immediately, I along with the 20 others laid on the floor inside the video parlour in order to protect ourselves from stray bullets. When there was a lull for a few moments, all of us ran out of the video parlour to our respective houses. When I reached home, I found my maternal uncle Mayanglambam Kunjo Singh, aged about 32 years, at my house. I heard the firing continuing for about half an hour. All of my family members, including my uncle, lay on the ground to protect ourselves from stray bullets”.446

Shri Khumukcham Rocky Singh described his own experience of the brutality meted out to the civilian population by the armed and paramilitary forces operating in the region:

“Within a short while, I heard the sound of breaking doors and a hue and a cry being made in neighbouring houses. I suspected that the Assam Rifles personnel must have come there to conduct an operation. Within minutes, some persons suspected to be jawans of Assam Rifles had started breaking our door and calling the male members of the family to come out. My mother immediately responded by opening the door. My uncle, Kunjo Singh, and myself went out. As soon as we stepped outside, the Assam Rifles jawans started beating and assailing both of us with lathis, rifle butts and fists.

We were taken out by two or three jawans of Assam Rifles along the road, where about 30 to 40 other jawans of Assam Rifles were taking position. All of them started beating and torturing us on the road. While beating us, the Assam Rifles personnel asked us who was responsible for

446 Full testimony of Shri Khumukcham Rocky Singh available at page 267


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laying ambush to the Assam Rifles that night. When we replied that we didn’t know, they started beating and assaulting us, torturing us like animals. Since neither of us could stand properly as a result of the torture, we fell on the ground. After forcing us to sit on the road in the cold winter night for two to three hours, we were let off by the Assam Rifles personnel at around 12:30 a.m. and allowed to return to our houses. When we reached our gate, we could not proceed further due to severe pain in our bodies, and we fell on the ground. My mother and wife ran out from the house and picked us both up”.447

The violations committed by soldiers of the Assam Rifles described above highlight that unless individuals are held accountable for acts of violence, soldiers and police forces will continue to inflict pain and misery on innocent citizens.

Sonia, alias Najima Latif, is a 15-year-old girl whose leg was fractured by army personnel when she attempted to ensure that the armed forces followed established legal procedures while arresting her uncle. The victim of arbitrary violence by soldiers, she explained in her own words:

“On the evening of 27 June 2007, I was studying with my sister [Samina] on our verandah. We saw a person in civil clothes along with some army men entering into our house. They arrested my uncle.

When we tried enquiring about his arrest, they reacted in a very bad manner. They refused to answer me. When we demanded that they release our uncle, the army personnel asked us to go back to into the house. As we started to raise our voice, the armed personnel started hitting my left leg by the gun’s butt, which fractured my left leg”.448

Sonia’s experience highlights the disregard many military personnel have for individuals living under the rule of AFSPA. She received medical treatment, but her leg still has not fully healed. Sonia’s uncle sought to hold those who beat her accountable. She highlighted the difficulties they have experienced in gaining redressal from the authorities:

“On 28 June 2007, my uncle Mohammed Abdul Gani filed a written report to the Office-in-Charge of Mayang Imphal Police Station. However, the police[men] in charge did not register the case. Further, on 23 July 2007, my uncle submitted an application to the Superintendent of Police, Imphal West District, [to take the] necessary actions for non-registration of the case. However, no action has been taken.

On 4 July 2007, some volunteers [from] Human Rights Alert come to me and recorded my statements regarding the incident. Thereafter, on 15 July 2007, they visited the Mayang Imphal Police Station and checked the action taken by the police on the written complaint filed on 28 June 2007. Subsequently, on 16 July 2007 [the] Asian Rights Human Commission issued an urgent appeal for me”.449

447 Full testimony of Shri Khumukcham Rocky Singh available at page 267448 Full testimony of Sonia available at page 302449 Full testimony of Sonia available at page 302

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The armed forces in the Northeast rely on violent tactics to gather information and instil fear in the civilian population. Young men are particularly at risk of brutal treatment by the military. Khongbantabam Sanatomba alias Langpoi related the tactics used by the military to gather information. Arrested from his village while organising a festival, he was arbitrarily detained by the military for five days and threatened with death if he did not provide them with information:

“On 19 January 2008, at around 8 p.m., some army personnel came to our locality, and I was arrested from the gate of my house while I was organising a Thabal Chongba [a form of traditional dance]. It was part of Imoinu Eeratpa [a traditional matchmaking festival dance], as I was the leader of the Imoinu Eeratpa committee. The soldiers came in two vehicles, one white Gypsy and one olive green 407 Tata truck. I was dragged, blindfolded, into the Gypsy; I do not know where I was taken.

After some time, I was somewhere in a room, but I did not know exactly, as I was blindfolded. I was made to sit on the ground, and my captors started beating me with a stick. They asked me: “Which underground outfit do you belong to?” I replied that I once belonged to the United National Liberation Front – a separatist movement – but now I am not involved in any underground organisation, since I was arrested by the Manipur police and imprisoned in jail. I further disclosed that I was now helping my parents, after my release on bail.

The soldiers asked me to hand over the guns and to disclose the persons who were involved in the underground organisation. But I replied, “I do not know anything, as now I am not involved in any such underground organisation”.450

He described the tactics used by the army personnel to intimidate him:

“My hands were always tied, and I could not distinguish day from night while I was in custody. I was fed while blindfolded, so I could not eat my food properly, and I could not answer the call to nature in time.

After a long time I was taken from there to a vehicle. Inside the vehicle, the army personnel told me that I will be killed. as I did not give them the information they wanted from me. After driving some distance, the vehicle stopped, and they made me sit on the ground. The soldiers said I was going to be killed there, and they untied my hands.

After some time, I heard the sound of the vehicle. Then everything went still and quiet. I sat there for a long time. Then, I slowly removed the blindfold and found that I was alone. I realised that it was already dark. Later on, I came to know that I had been in their custody for five days. They released me on 24 January 2008”.451

Elangbam Kennedy Meitei, an 18-year-old, was taken from his house by members of the armed forces. Assam Rifles personnel tortured him and his father in order to gather information on alleged insurgents. The soldiers of the Assam Rifles told them that their treatment was due

450 Full testimony of Khongbantabam Sanatomba available at page 294451 Full testimony of Khongbantabam Sanatomba available at page 294


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to their co-operation with armed groups and as punishment for the death of one of their personnel:

“On that day, I was suddenly woken up by a heavy gunfire. I went to my mother’s room and slept along with her. I felt very scared, as the firing seemed to be quite near. After the shooting stopped I heard that many people were crying. I also heard a thumping sound at my neighbour’s door. We switched on the light of our house. After a while, I heard a loud thumping at the front door of our house. The Assam Rifles personnel broke the door and made us switch off the light. We were called out. I was wearing only a loin cloth and undershirt. The Army personnel asked me if I knew someone called Chinglen. I told them that I did not know him. My father told them that I am a student. Thereafter, the Assam Rifles personnel insisted my father should know the unknown man. They took my father out of the house. I was also dragged towards the main road.

My loin cloth and undershirt were torn. One Manipuri-speaking army personnel beat me on the thigh, hands and back of the body with a stick. They also slapped me several times and hit me on the elbow. I was made to lie down on the ground, face downward. They kicked my back several times. I was unconscious. When I regained consciousness, they had already picked me up. I was allowed to enter the house, but even before I could reach home, another group of soldiers dragged me out. They again beat me up thoroughly. Thereafter, the previous army personnel took me towards the gate. But other personnel followed me and beat me again and again. I saw my mother coming out. She snatched me and took me inside the house. After a while, my father also came in. He was crying due to severe torture. We took shelter in the neighbouring house until dawn”. 452

Elangbam was badly injured as a result of the beatings to which he was subjected. His family struggled to find medical treatment for him:

“In the early morning, nobody was allowed to go out of the house. At around 11:15 a.m., I was taken to a doctor’s house at Kakching Khunou in a rickshaw. I was unconscious. When I regained consciousness, I found myself in a car. I was given first aid at Kakching Khunou. But as my health deteriorated further, I was taken to the Imphal hospital…but we found out that there was no doctor. I was then taken to the Regional Institute of Medical Sciences, but there were too many injured people. Later, I was taken to Raj Poly-Clinic. I still feel dizzy while moving”.453

Moirangthem Ghandi Singh is a jeweller in Bishnupur District, Manipur. He was tortured because he had been sold some gold that the police alleged was stolen property:

“On 15 April 2007, at about 12:05 p.m., two police personnel of Moirang Police Station…came to my house in a Maruti car while I was preparing to take my lunch. The police personnel asked me to accompany them to the police station… I was taken to a room [where three people were present]. [I was asked] if one Konjenbam Naoton Singh had sold gold ornaments to my

452 Full testimony of Elangbam Kennedy Meitei available at page 353453 Full testimony of Elangbam Kennedy Meitei available at page 353

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jewelry shop… At that time [one of the men] told me that those gold ornaments were stolen properties, and as such, he asked me to put my signature on a paper to the effect that I shall refund the said gold ornaments. I expressed my inability to do so. Then, they took me into another room… He instructed his subordinate police personnel to seize all articles from my jewelry shop. Accordingly, [many] articles were seized without issuing a seizure memo”.454

The police then began using violence to pressure him into “confessing”:

“Even after disclosing everything I knew, he [the perpetrator] started beating me by using a cane stick over my back and also slapped [me] over my face severely and compelled me to spend the whole night of 15 April 2007 on the floor without providing any food. I repeatedly pleaded that I was suffering from benign stricture of esophagus after taking corrosive substances in 2003, and as such I am required to take semi-solid and liquid diets on regular intervals every day.

On the next day, 16 April 2007, they took me again into another room and thrashed me severely, asking me to give back the gold ornaments… Consequently, they further detained me in the police station until 17 April 2007 without producing me before the concerned Magistrate’s Court and also without providing any food.

On 17 April 2007, at around 3:30 p.m., I fainted and collapsed due to the torture inflicted on me without providing any food, and thereafter, they took me to the Community Health Centre, Moirang… On examination [the attending doctor] found bruises on the back of my neck and inter-scapular region. I also disclosed about difficulty in swallowing. In view of the seriousness of my ailment, the attending doctor referred me to the Regional Institute of Medical Science (RIMS) Hospital, Lamphelpat, for further treatment.

Thereafter, the police personnel who brought me to the Community Health Centre left the place without taking care of me. Having no alternative, my family members took me to the RIMS Hospital on the same day… I am still under constant medical treatment at my home”.455

The testimonies of these victims provide a glimpse of the daily terror of life in the Northeast under AFSPA. Police and military brutality are implicitly encouraged by the State through the immunity (and impunity) granted to State actors in the region.

Legality of AFSPA

AFSPA violates basic principles of criminal justice by providing special powers that expressly allow for extra-judicial killing and by eliminating due process of law. By making it mandatory to seek prior permission of the Central Government to initiate any legal proceedings against armed and security forces, these forces are effectively given free reign to commit gross human rights violations. The Act also violates non-derogable provisions of international human rights law, including the right to life, the right to remedy, the right to be free from arbitrary deprivation

454 Full testimony of Moirangthem Gandhi Singh available at page 356455 Full testimony of Moirangthem Gandhi Singh available at page 356


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of liberty, the right to be free from torture and cruel, inhuman or degrading treatment or punishment (ill-treatment), as enshrined in the ICCPR – to which India is a State Party – amongst other relevant treaties and international standards.456 Despite the unconstitutionality of the AFSPA, successive Indian governments have upheld its continued use in the Northeast.

Effects of AFSPA

For 50 years, civilians in the Northeast have lived under the rule of AFSPA. Violence aimed at suppressing dissent has only increased under the draconian legislation, which has had the opposite effect than the purpose for which it was enacted. The hardship of civilian life under AFSPA and the impunity granted to the military under the Act only heighten the discontent of the population; this in turn fuels further militancy. The Indian Government employs the colonial approach of suppressing unrest through increasingly brutal measures against the citizens of the Northeast, disregarding their constitutional rights and treating them as undeserving of fundamental rights. The UN Committee on the Elimination of all Forms of Racial Discrimination recognised this issue when it brought up the issue of AFSPA while discussing India in 1996. In its Concluding Observations the Committee stated:

“The Committee is seriously concerned that… groups [the Manipuris], are frequently treated, on account of their ethnic or national origin, in ways contrary to the basic provisions of the Convention”. 457

The experience of AFSPA in the Northeast contains the lesson that violence by military personnel breeds violence by the oppressed population. It is telling that the number of military forces stationed in the Northeast has increased from a couple of hundred forty years ago to thousands today. AFSPA has not helped to combat militancy in the Northeast; it has, in fact, helped fuel militancy in the region. In 1980, there were only four armed opposition groups in Manipur; today there are over two dozen.458

As Babloo Loitongbam illustrated, the importance of dialogue in regions of civil unrest to address the root causes of dissatisfaction should not be underestimated. As he pointed out, the use of force only succeeds in alienating the population and pushes them to resort to violent tactics:

“I would like to stress… that for those who are trying to deal with dissent, torture is a completely useless tool. Dissent cannot be dealt with by force. Dissent must be dealt with by discussion, by engagement and with political processes”.459

456 ICCPR, Article 2 provides that: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant..".

457 UN document CERD/C/304/Add.13 of 17 September 1996 at paragraph 15. As quoted in “The Armed Forces (Special Powers) Act – Repressive Law”, Combat Law, Volume 2, Issue 1 (April-May 2003)

458 Supra, footnote 134 459 Full testimony of Babloo Loitongbam available at page 370

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The rule of law has been steadily eroded in the Northeast over the past half-century. It must be strengthened if there is to be any hope for the people of the Northeast to regain their constitutional rights. In Babloo Loitongbam’s view, this can be achieved through adherence to constitutional principles and assurance that torture and other human rights violations are brought within the ambit of the law rather than operating outside of it:

“If for some reason the policy-makers think that it is through torturing, executing and ‘disappearing’ people that dissent will be suppressed, they are sadly mistaken. It is time for us to say that there should be no exceptions [to the law]. Torture is like slavery, and like genocide, it should be stopped without any exceptions”.460

Babloo Loitongbam believes that political processes are one way of achieving this:

“Torture should be condemned in every form and in every circumstance. India has already signed the Convention Against Torture, and we should call for the ratification of that Convention. We should pressure our MPs and get a commitment from them and our so-called representatives of the people who want your vote [that people] cannot be tortured and cannot be ill-treated under any circumstances”.461

In addition to ratifying CAT and other international conventions, the Indian Government must repeal AFSPA. Many national and international bodies have requested that the Government take this step. Following widespread protests in Manipur in 2004 against the continued use of AFSPA, the Indian Government set up a five-member committee to review the legislation.462

The Committee, headed by retired Justice B. P. Jeevan Reddy, presented its report to the Government in June 2005. Although the Committee recommended the repeal of the Act in its present form, it also made the disappointing recommendation that some of the more draconian provisions of AFSPA be retained and incorporated into other domestic laws.

Successive civil society actors, international bodies and NGOs have requested that the Government of India repeal this draconian law. Worthy of note is the recommendation in February 2007 by the United Nations Committee on the Elimination of Racial Discrimination that the Indian Government immediately repeal AFSPA. In June 2007, the Administrative Reforms Committee also recommended the repeal of the Act. Despite these calls from inside the country and from the international community, the Indian Government has not taken action to repeal AFSPA.

For the citizens of the Northeast to realise and enforce their constitutional rights, AFSPA must be repealed unconditionally and its draconian provisions must not be incorporated into new legislation. The provisions should be recognised for what they are: mechanisms for the criminalisation of an entire population and repressive colonial-style powers, fundamentally at odds with the liberal democratic vision of society laid down by the Indian Constitution.

It is fitting to end this chapter section on 50 years under AFSPA with the words of Elangbam Kennedy Meitei:

“I want to let the President of India know how we are suffering at the hands of the army due to the imposition of AFSPA. I also wonder if the Chief Minister really feels the pain and

460 Full testimony of Babloo Loitongbam available at page 370461 Full testimony of Babloo Loitongbam available at page 370462 The protests were in response to the 2004 rape and murder of Manorama Devi in Manipur by armed forces


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suffering of common people. If I were the son of the Chief Minister, I would never have been subjected to such torture". 463

Kashmir: State terror in the valley

Prior to Independence in 1947, Kashmir held the status of a princely state. At Independence, the State of Jammu & Kashmir bordered a newly created Pakistan on one side and India on the other. Kashmir was a Muslim-majority state ruled by a Hindu Maharaja who refused to accede to either country, preferring Kashmir to be independent. Pakistan, taking the view that the division of territory at Partition was unfair, backed an invasion of Kashmir by Pakistani fighters. The Maharaja of Kashmir, unable to defend his kingdom, turned to India for military assistance and acceded to the Indian State in 1947. War between India and Pakistan broke out. At its end in 1949, a de facto border through the State of Kashmir was agreed upon between military representatives from both sides. About one third of the territory is under Pakistani control, and two thirds – the State of Jammu & Kashmir – falls under Indian authority. This border, with minor alterations, remains intact today and is commonly known as the Line of Control (LOC).

The UN Security Council Resolution 47, adopted on 21 April 1948 and supported by both India and Pakistan, stated that Kashmiris should be given the choice to accede to either India or Pakistan in a fair plebiscite.464 This plebiscite has never taken place. Wars between Pakistan and India occurred in 1965 and 1971, and tensions between the countries have flared up in 1986, 1990, 1999 and 2002.465

Kashmir is the only state with its own constitution. In theory, it is an autonomous state except for matters of defense, communications and foreign policy. In practice, however, it is governed directly from New Delhi. The discontent of the Kashmiri population with Indian rule has grown out of its opposition to Indian attempts to interfere in Kashmir’s internal politics and to reduce its autonomy. The Indian Government has stoically ignored the demands of the Kashmiri people for azadi (freedom) from Indian rule, has chosen to characterise the “Kashmir problem” as one of “law and order” and has emphasised the need to combat the terrorist threat emanating from Pakistan within its borders.

The state elections of 1987 and their aftermath marked a further deterioration in relations between Kashmir and India. The Muslim United Front (MUF), which included a number of Islamic and secessionist parties, had garnered considerable support from the Kashmiri population and were seen as a viable alternative to the ruling Congress Party. The elections, dogged with controversies over vote-rigging and corruption, led to the incumbent Congress Party remaining in power. This produced deep dissatisfaction with the political process among

463 Full testimony of Elangbam Kennedy Meitei available at page 353464 The Resolution did not include an option to vote for independence, an aspiration of many Kashmiris. ‘Everyone Lives

in Fear: Patterns of Impunity in Jammu & Kashmir’, Human Rights Watch, 2006. Available at: www.hrw.org/reports/2006/india0906/3.htm#_Toc144362274

465 For a comprehensive overview of Kashmir’s history and relations with Pakistan see Ibid.

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the Kashmiri population. In addition, the Indian Government installed a Governor in the state and sent more Indian troops to the already heavily militarised region. Emergency rule was introduced in 1990, and the Indian Government launched a campaign of systematic murders and disappearances of suspected separatists.

Today, more than half a million Indian troops occupy the region. Since 1990, approximately 90,000 Kashmiris have died, although the State’s estimate is almost half that number. More than 15,000 women have become widows and approximately 1,000 women are living the lives of ‘half widows’ as the fate of their ‘missing’ husbands is yet to be known. It is estimated that 6,000 people are the victims of enforced or involuntary disappearances. More than 25,000 children have been orphaned. 466

The difficulties associated with identifying militants have led to widespread violence and the subjection of civilians to numerous abuses by State security forces. Indian police, armed and security forces have carried out large numbers of summary executions, custodial killings, tortures, forced disappearances and arbitrary detentions in the Kashmir valley. Approximately 10,000 people are estimated to have disappeared in Kashmir after being abducted by the armed forces.

Draconian laws

As with Punjab in the 1980s and 1990s and in the Northeast since 1958, the Indian Government has sought to tackle the unrest in Kashmir through the enactment of repressive laws such as Armed Forces (Jammu & Kashmir) Special Powers Act of 1990 (AF(J&K)SPA), the Jammu & Kashmir Disturbed Areas Act of 1990 (JKDAS) and the Public Safety Act. These laws give wide-ranging powers to the police and security forces to commit human rights atrocities against the civilian population.

AF(J&K)SPA empowers officers, including non-commissioned officers, to:

“do for the maintenance of public order, giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable as being used as weapons or of firearms, ammunition or explosive substances”.467

Under AF(J&K)SPA, in an area that is proclaimed to be “disturbed”, an officer of the armed forces has powers to: fire upon individuals or use other kinds of force even if it causes death; arrest without a warrant and with the use of “necessary” force anyone who has committed certain offences or is suspected of having done so; and to enter and search any premise in order to make such arrests. Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under this law.

466 Statistics courtesy of Jammu & Kashmir Coalition of Civil Society. Available at: www.jkccs.org467 AF(J&K)SPA, section 4 (a)


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Like other anti-terrorism and security laws, both JKDAS and AF(J&K)SPA provide immunity to those exercising powers under the acts. In identical language, both state that:

“no prosecution, suit or other legal proceedings shall be instituted, except with previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.468

The immunity provisions contained in these Acts are used most often in Kashmir to prevent civilians from prosecuting soldiers. When the State Government asks the Central Government for permission to prosecute those found responsible after police or magisterial inquiries, that permission is seldom granted.469

The extraordinary powers given to the Indian armed forces operating in the Kashmir valley under AF(J&K)SPA are responsible for the widespread occurrence of torture, extra-judicial killing and forced disappearances committed by State security agencies.

Despite repeated calls from human rights organisations for the Indian Government to carry out a credible and independent investigation into all disappearances and encounter killings in Kashmir since the conflict began in 1989, no steps have been taken in this regard.470 In February 2007, India signed the United Nations International Convention for the Protection of All Persons from Enforced Disappearances (2006). Despite this positive move, the Indian State has yet to ratify the Convention or take meaningful steps to investigate human rights atrocities in the region.

Climate of fear

The people of Kashmir, particularly young men, are often suspected of being militants or terrorists by locally stationed Indian security forces. This has a profound effect on their daily lives. Panel member Professor S. M. Qadri from Kashmir described the climate of fear and suspicion which hangs over the state:

“I pray to God that you never have to face a situation like ours in Kashmir, where you have to prove your identity and where you live. When I come out of the University, a Central Reserve Police Force (CRPF) soldier asks me who I am. I tell him that I work in the University. I say, “It’s my town and my home, and you are asking me who I am?”"471

He described the hazards associated with being a Kashmiri in the valley:

“If I say that I am a Kashmiri, I’ll be pulled out of a bus and asked to prove my identity, but if you say that you are from Uttar Pradesh, they won’t say anything to you”.472

468 AF(J&K)SPA, section 7; Jammu & Kashmir Disturbed Areas Act 1990 section 6; CrPC, section 45469 Supra, footnote 465 470 ‘India: Investigate All ‘Disappearances’ in Kashmir: Recent Cases Reveal Pattern of Security-Force Involvement’,

Human Rights Watch, 15 February 2007. Available at: http://hrw.org/english/docs/2007/02/15/india15336_txt.htm 471 Full deposition of Professor S. M. Qadri available at page 306472 Full deposition of Professor S. M. Qadri available at page 306

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Professor Qadri related an experience that illustrates the intimidating but sometimes farcical results of the paranoia of the Indian security forces:

“I can recall an incident, which happened three years ago, when a bus service was launched between Srinagar and Muzaffarabad [Pakistan Kashmir]. We had a workshop organised by the Delhi Policy Group and the European Union, and I was somehow or other organising it. We had two foreigners with us, and I think one of them was a German.

The German was a journalist, and a huge fire happened somewhere. He insisted that I accompany him to that place; he said he’d like to take go there to take photographs. I said he could come with us. He had a long beard, and there were two or three of us traveling with him from the University. At one point, the security forces stopped the car, and they didn’t say anything to me, but they caught hold of that German guy because of his long beard, saying he was Salahuddin [a notorious Kashmiri terrorist]; that was the situation”.473

Professor S. M. Qadri believes that, like Manipur and other states where the Government has introduced regional militarisation, repressive measures to combat the perceived threat serve only to encourage the oppressed to use more violent means of self-expression:

“I would like to ask a question to all my friends here: Why did the violence erupt in Kashmir? What were the reasons? I remember that in the past we would never have kept even a knife for our defense at home. We could not have imagined that our boys would pick up guns: For what reason? The same can be said of Manipur and other states”.474

Kashmir is depicted in the popular consciousness as a “threat” and its people as “militants” and “terrorists”. The characterisation of the population in this way, by the media and by politicians, allows the Government to justify its repression of the Kashmir valley as a necessary measure to prevent the spread of terrorism. The process of dehumanisation has worked. The Indian public appears to have accepted the rationale behind the human rights atrocities in the region and, by extension, the continued abuses committed the against Kashmiri people.

As panel member Vrinda Grover observed, the Indian public shares security forces’ suspicion of the Kashmiri struggle against occupation. This, she notes, often prevents them from supporting the Kashmiris’ struggle:

“Why people don’t join their struggle is because they believe in their minds that Kashmiris are different; they are militants. These thoughts stop the struggle from uniting”.475

Advocate Mir Hafizullah from Kashmir also pointed out the lack of importance that Indian civil society attaches to the human rights atrocities taking place in Kashmir:

“I have come here, therefore, to appeal to Indian civil society, which has been totally indifferent towards Kashmir. Indifferent, in my eyes, means to stop giving consideration to the people of Kashmir, neglecting what they want. In this respect, society is being very conscientious

473 Full deposition of Professor S. M. Qadri available at page 306474 Full deposition of Professor S. M. Qadri available at page 399475 Full deposition of Vrinda Grover available at page 341


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about Gujarat and other states, even Nandigram, but is ignoring what is happening in Kashmir, even though the situation is known to everyone”.476

Extra-judicial killings and forced disappearances

“To ‘disappear’ is to vanish, to cease to be, to be lost. But the ‘disappeared’ have not simply vanished. Someone, somewhere, knows what happened to them. Someone is responsible”. – Mukul Sharma, Director of Amnesty International India477

The Association for Parents of Disappeared Persons (APDP) estimates that more than 10,000 people are missing in Kashmir as a result of atrocities committed by security forces in the state. The Indian Government gives a much lower estimate: It admits that almost 4,000 people are missing, but instead claims that some may have crossed into Pakistan to join militant groups.478

Mohammed Yusuf Dar’s father went missing in 1992. He described the circumstances of his disappearance:

“My father disappeared when he went to the mosque to read namaaz. It was around four a.m., before the Morning Prayer. At that time there was a crackdown in our area, but he was not aware of it. It was his habit to go the mosque every morning to say his prayers. That morning, the army had surrounded the whole neighbourhood and was conducting a search. When he came out from the namaaz, the army arrested him”.479

When his family discovered that he had been arrested, they went to the nearby army camp. They were initially hopeful that he would be released:

“It was at around 9:30 a.m. that I learned my father had been taken away during the raid. We went to the local army camp and enquired about him and were told that they had arrested a person answering to his description that morning, but they refused to hand him over. They told us to bring the sarpanch [the head of the village panchayat], saying they would talk to him. They also mentioned another man and asked us to bring him, as well, to the Dak Bungalow, where there was another army camp. When we took the sarpanch there, we were told that the enquiry would last two to three days, after which they would let my father go”.480

He was not released. As time went on, the family began to lose hope of their father’s return:

“We waited for one month, and we wrote to the army officials regularly to ask why he was not being released. When nothing happened, we went to the District Collector [DC] and told him that our father had been locked away for a month and was still there. The DC told us not to worry, saying that the enquiry would go on for two to three months, after which our father would be released. He told us to go home”.481

476 Full deposition of Mir Hafizullah available at page 377.477 ‘Addressing the issue of Enforced Disappearances’ by Mukul Sharma, The Hindu Available at: www.hindu.

com/2008/06/24/stories/2008062454620800.htm478 Supra, footnote 471479 Full testimony of Mohammed Yusuf Dar available at page 296480 Full testimony of Mohammed Yusuf Dar available at page 296481 Full testimony of Mohammed Yusuf Dar available at page 296

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Mohammed’s father has not yet returned. It has been 16 years since his father was arrested by the army and Mohamed Yusuf Dar and since his family last had contact with him:

“Since my father’s arrest, he has not been allowed to meet us even once. We kept on asking to be allowed to meet him, but they never let us, and until now we have no information as to his whereabouts”.482

Culture of silence

A culture of silence surrounds the activities of the security forces in Kashmir. They are given enormous powers to arrest and detain, and their activities are protected from scrutiny by the authorities. Like that of Mohammed Yusuf Dar, many families of the disappeared have never received any answers from the authorities regarding the disappearance of their loved ones.

Mumtaz Ahmed Bhat described how his brother was taken by the police from a friend’s house:

“When my father retired, my younger brother, who is educated, was given a job in an electricity department in Lal Chowk, Srinigar. My elder brother's friend liked my younger brother, so he took him to his house after he finished work at Lal Chowk. At that time, police raids were frequent, and the place where the friend took my brother was raided. Four people from two nearby buildings were arrested; my brother was arrested as well”.483

Mumtaz discovered that his brother had been arrested by the Rashtriya Rifles:

“Later on, the others were released, but not my brother. We learned from a report that the Rashtriya Rifles – a counter-insurgency army unit – had arrested him. At first they acknowledged that they had taken him and then denied it”.484

Mumtaz and his family went looking for his brother, but could not find him anywhere.

“We searched for him in every jail and camp, but could not find him anywhere. We also checked the camp near the friend's house. Some of the soldiers said at first that they had arrested him, but denied it later on. After not hearing anything about him for a long time, his employment at the electricity department was terminated”.485

With his brother gone, Mumtaz took on the responsibility of looking after his family:

“In our family, there were four brothers and three sisters. I used to live with my younger brother. One of my sisters was married before my brother disappeared, but after his arrest the responsibility for looking after our other sisters fell on me – even getting them married. In addition to finding my brother, the entire burden of looking after our family has fallen on me”.486

482 Full testimony of Mohammed Yusuf Dar available at page 296483 Full testimony of Mumtaz Ahmed Bhat available at page 295484 Full testimony of Mumtaz Ahmed Bhat available at page 295485 Full testimony of Mumtaz Ahmed Bhat available at page 295486 Full testimony of Mumtaz Ahmed Bhat available at page 295


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He has continued to search for his brother for 12 years:

“This incident happened in 1996, and since then I've been running from pillar to post, but to no avail. I've been to every army camp in every town but still have not been able to uncover his whereabouts. We only hope that we hear something, even if he is dead, which often happens in cases where people are picked up by security forces: They later kill them”.487

Mumtaz describes the exhumation of the bodies of five alleged terrorists in February 2007. It was discovered that they were not Pakistani terrorists, but innocent civilians:

“Last year, in the first week of February, five bodies of people were discovered, and it was thought that they were terrorists belonging to Lashkar-E-Toiba [an Islamic Fundamentalist group from Pakistan]. When the bodies were exhumed, it was found that they were Kashmiris, and not Pakistani nationals, as previously thought. From that time I have been thinking that my brother may have been killed in a similar fashion. But I still demand and appeal to the Indian Government to tell me where he is, even if he has been killed”.488

He had one simple request for the Indian Government:

“I request the Government to tell the security forces to give me the location of his grave, and if he has been cremated, to tell us where his remains are, so that at least I can know that he is dead and regain my peace of mind”.489

He described the daily torment of not knowing whether his brother is dead or alive:

“Every time there is a noise, I think it is my brother is knocking. If I can find his remains, I will be relieved, knowing that he is dead”.490

Parveena Ahangar’s 16 year-old son, Javed Amer Ahangar, has been missing since 18 August 1990. He was picked up by soldiers during a raid and never seen again. She has the same request for the Indian Government:

“We have been to several jails, such as Tihar and Jodhpur, but our relatives were nowhere to be found. We appeal to the Government to tell us whether they have been killed, and if they have been killed, where they are buried”.491

She described the daily torment of the relatives of victims who have disappeared, who hope that their loved ones will one day return:

“The majority of the relatives of the disappeared have contracted ailments out of depression, thinking when there is a knock on their door, that it must be their child standing there. If the mother or father of someone who had disappeared dies, who will there be to search for them?”492

487 Full testimony of Mumtaz Ahmed Bhat available at page 295488 Full testimony of Mumtaz Ahmed Bhat available at page 295489 Full testimony of Mumtaz Ahmed Bhat available at page 295490 Full testimony of Mumtaz Ahmed Bhat available at page 295491 Full testimony of Parveena Ahangar available at page 284492 Full testimony of Parveena Ahangar available at page 284

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She pointed out the huge numbers of the disappeared and, like Mumtaz Ahmed Bhat, called for the Indian Government to, at the very least, return the bodies of the dead:

“There are 8,000 to 10,000 people missing in Kashmir, whom Indian security forces have arrested indiscriminately. We want our arrested children and relatives to be produced before us, and if they have been killed, we appeal to the authorities to give us back their bodies. If the Indian security forces have indeed killed one lakh of people in Kashmir, then they should at least return our children’s bodies”.493

Association for Parents of Disappeared Persons, (APDP)

Parveena Ahangar founded the Association of Parents of Disappeared Persons in 1994 as a means of support for parents whose children have gone missing at the hands of the security forces. Today the group has more than 300 members.

“In 1994, we established the Association for Parents of Disappeared Persons (APDP) so that we could campaign for the disappeared from a forum and carry out searches for husbands, sons and brothers in an organised way”.494

Members of ADPD protest on the streets of Srinagar on the tenth of every month. They have three demands: First, that an independent commission be set up to enquire into the cases of the disappeared. Secondly, that the perpetrators responsible for the enforced disappearances are punished. And thirdly, that the families of the victims receive justice in accordance with international standards.

As Advocate Mir Hafizullah, legal adviser to APDP, explained at the Independent People’s Tribunal:

“10 February is a special day for the Association of Parents of Disappeared Persons (APDP) because on the 10th of each month, we protest on the streets of Srinagar demanding the formation of a committee of inquiry into the disappearance of people from Kashmir. We have been putting forward this demand since 2005”.495

Parveena Ahangar described the disappearance of her son and the efforts she and others underwent in an attempt to discover the fates of their relatives:

“My son was picked up in 1990 by the National Security Guard. When he was arrested, he was in the tenth grade at school. The following day, I went to the police cantonment, and they said he was in the P.P Garg Hospital. I lodged a First Information Report. Altogether, there were about 60 missing people, but there was no sign of their whereabouts despite the efforts of their families. I filed a petition in the lower court that acknowledged the arrests. We wondered why our kids were not getting justice and why we were having to run from pillar to post”.496

493 Full testimony of Parveena Ahangar available at page 284494 Full testimony of Parveena Ahangar available at page 284495 Full deposition of Mir Hafizullah available at page 377496 Full testimony of Parveena Ahangar available at page 284


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Mrs. Bhakti is from northern Kashmir. On 22 December 2001, she was on a bus on the way to Baramulla with her 22 year-old son, Manzoor Ahmed Khan, and his new wife, who was ill. They were on their way to see a doctor when her son was arrested by Major Bhattacharya from the Rashtriya Rifles. A translator described what happened:

“There is a place called Trakpura, where there is a special counter-insurgency unit of the 28 Rashtriya Rifles. Major Bhattacharya was working there with a surrendered militant. He pulled Mrs. Bhakti’s son off the bus and took him to a camp. When she ran behind him to the camp, they pushed her to the ground, hurting her arms very badly. She required almost 20 stitches in her hands”.497

The translator related how Mrs. Bhakti waited at the gate of the army camp to discover the whereabouts of her son. Receiving no reply, she protested with her relatives and friends outside of the gate:

“She was waiting at the gate for an officer to come out… After some time, Major Bhattacharya came. She asked him when her son was going to be released, and he told her to wait for some time. Then he vanished. Mrs. Bhakti waited until nightfall, but no one came, so she went home. In the morning, she took some relatives and neighbours with her to the camp and protested outside the gate”.498

In response to her protest, members of the armed forces came out and began beating them away:

“The Major came out, along with the surrendered militant and some soldiers, who started beating them with their lathis. Some of the people got badly hurt and later dispersed”.499

She was threatened that she and her son would be killed if she filed a case against the army officers and told that if a family property dispute could be solved, her son would be released:

“The next day, the surrendered militant who was working with the army came to their house and threatened to kill her son if she filed a case against the army. He told her that a man called Setha, an uncle of her daughter-in-law, was involved in a property dispute with that woman. He said that if that problem could be solved, Mrs. Bhakti’s son would be released. The surrendered militant also threatened that if any case was filed in the court, the army would kill her son and her family”.500

Nonetheless, Mrs. Bhakti sought the help of the police to release her son and to file a case against the army officials. She found that the police refused to assist her:

“After some days, Mrs. Bhakti went to Sopor and met the Senior Superintendent of Police (SSP). She lodged a First Information Report (FIR), but the police did not give her the FIR number for seven months”.501

497 Full testimony of Mrs. Bhakti available at page 286498 Full testimony of Mrs. Bhakti available at page 286499 Full testimony of Mrs. Bhakti available at page 286500 Full testimony of Mrs. Bhakti available at page 286501 Full testimony of Mrs. Bhakti available at page 286

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The army officer responsible for the disappearance of Mrs. Bhakti’s son tried to bribe her daughter-in-law into accepting money in return for dropping the case against him:

“Major Bhattacharya is from Ambala, Haryana. At one point, he called her daughter-in-law to a neighbor’s house and told her to take one lakh rupees as an ex-gratia relief payment and to withdraw the case; otherwise she would have to face a lot of trouble”.502

Again, army personnel visited Mrs. Bhakti and warned her not to file a case against the army officials. Other witnesses were threatened that they would be killed if they testified against the army; as a result, they withdrew their support. This led to the failure of the case against the army officials:

“The surrendered militant came again to her place and told her not to pursue the case. He threatened the other witnesses, as well, and told them they would be killed if they testified. The witnesses, therefore, told her that they could not act as witnesses because of the threat to their lives. The case continued in the courts, but nothing came of it due to the lack of witnesses”.503

Mrs. Bhakti’s son was killed by the armed forces, and members of the army continue to harass and intimidate her and her family members:

“The army keeps on visiting their residence. They have killed her boy and have also injured another boy from her family. Soldiers keep on frequenting her household and harassing her and her family members”.504

To date, Mrs. Bhakti has failed to attain justice for the disappearance of her son. The translator related her demands:

“Mrs. Bhakti is asking for the return of her child and requests all of you to urge the Government to take action and start legal proceedings against Major Bhattacharya. She wants justice”.505

Parveena Ahangar described how the relatives of a man alleged to be a militant campaigned with APDP for an inquiry into his death. The inquiry found that the dead man was not a militant, but an innocent civilian:

“Last year, the Daka case – in which security personnel gunned down an innocent person and claimed he was a militant – became very famous on the Indian news channel NDTV. It was called the Padru killing. The relatives of Mirja Raa Daka are members of our organisation. The family participated in our protest and struggled with us. Last year, when an inquiry was made into their case, the body was exhumed, and it was identified that he was an innocent civilian”.506

502 Full testimony of Mrs. Bhakti available at page 286503 Full testimony of Mrs. Bhakti available at page 286504 Full testimony of Mrs. Bhakti available at page 286505 Full testimony of Mrs. Bhakti available at page 286506 Full testimony of Parveena Ahangar available at page 284


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She described the poverty of many of the members of APDP who have lost their children to the security forces:

“Most of the members of our organisation are widows, and there are also many members who have two or three children who are missing. For most of us, our financial situation is not secure. Most of us are poor, and many of the victims were the sole bread-winner in their family. Consequently, many of our members are struggling to make a living”.507

Lack of assistance from the Government of Kashmir

The Government of Kashmir has made a number of promises to the ADPD, none of which have yet been fulfilled:

“Chief Minister Ghulam Nabi Azad asked: How many more dead bodies would we have to exhume, as so many people have been buried? Later he promised to set up a commission to investigate the matter of disappeared persons, but it was not acted upon… The Farooq Abdullah government also made a promise to award relief, but many times in these cases when the Government is implicated and is proven to be guilty, it tries to pressure the petitioners to withdraw the case”.508

In 2005, the State Government of Jammu & Kashmir pledged that the State Human Rights Commission (SHRC) would investigate all cases of forced disappearances. However, the SHRC was unable to order prosecution against members of the security forces without prior sanction of the Union Home Ministry. This led to the resignation of the Chairperson of the SHRC over the “non-serious” attitude of the State Government in addressing the issue.

At the IPT, Parveena Ahangar described the objectives of the APDP and called upon the people of India to support the group in their quest for justice for the disappeared:

“We just want justice for our beloved departed; we don’t want money or jobs. We will continue our struggle as long as we are alive. We only want your solidarity; we don’t want anything else. We only want your support and solidarity and for you to exert pressure on the Indian Government so that they return the dead bodies of our missing relatives or tell us their whereabouts. We have been engaged in this struggle for 18 years, and it is a pain for which there is no remedy. This is a disease just like cancer. We want justice. We want information about where they are buried or where they are currently jailed. We appeal to you for your support in this struggle and we would like you to appeal to our government so that we get justice”.509

Lack of recourse to the judiciary

In addition to providing a network of support, ADPD helps the relatives of the disappeared to file habeas corpus petitions in the High Court; however, the High Court has had little success in delivering justice to victims’ families.

507 Full testimony of Parveena Ahangar available at page 284508 Full testimony of Parveena Ahangar available at page 284509 Full testimony of Parveena Ahangar available at page 284

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Due to the high-profile nature of Parveena Ahangar’s case, the High Court intervened and ordered arrest warrants for those responsible for the disappearance of her son. Despite the efforts of the High Court, however, the armed and security forces ignored the request and refuse to cooperate:

“I am the current head of APDP, and in my case the High Court has ordered that the security personnel who were involved in arresting my son be convicted. It has also issued arrest warrants for them, but these orders have not been implemented because the army and other security forces are not willing to cooperate. Even though there have been judgments in our favour, these orders have not been implemented because of a lack of cooperation from the security forces”.510

As is clear from Parveena Ahangar’s experience, the response of security forces to High Court directions is contemptuous. According to a survey conducted by the South Asia Forum for Human Rights (SAFHR), respondents denied arresting the victim in more than 70 per cent of petitions. Of the remaining cases, they admitted the arrest in 10 instances, but claimed the missing person had been subsequently released. In three cases, they claimed that the missing person had escaped from police custody.511

In a number of cases, the High Court has directed that enquiries be conducted into the disappearance of an accused, but even when the perpetrators are identified, the Indian Government has been reluctant to grant sanction for prosecution under Section 6 of AFSPA. Not a single perpetrator of forced disappearances has been brought to justice.512

SAFHR also found that in more than 57 per cent of High Court cases in which the Court made a clear finding against a particular security force, the court was powerless to do any more than order registration of an FIR.513

One commentator noted that, in dealing with habeas corpus petitions, the Srinagar Bench of the High Court of Jammu & Kashmir:

“went through the motions without any faith in the effectiveness or sanctity of its processes. The result was not just that the court’s intervention did not save any lives; these processes had no impact whatsoever on the prevailing situation. It was as if the courts did not exist”.514

The need for an Independent Commission on Kashmir

Mir Hafizullah believes that Kashmir needs an independent commission to investigate human rights atrocities – the torture, extra-judicial killings and the forced disappearances that are perpetrated by the Indian armed and security forces in the state. The Kashmiri people desire a commission that is fair, impartial and just.

“Kashmiris respect the Pandian Commission [Justice S. R. Pandian Commission of Inquiry, probing the killing of eight persons in the Brackpora police shooting on 3 April 2000], which

510 Full testimony of Parveena Ahangar available at page 284511 ‘Impossibility of Justice’ by Ashok Agrwaal, Combat Law, Volume 7, Issue 4, July - August 2008512 ‘Enforced Disappearances’ by Mir Hafizullah, Combat Law, Volume 7, Issue 4, July - August 2008513 Supra, footnote 512 514 Supra, footnote 512


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has produced a report on the issue. If such people – or the lady who has spoken out openly against human rights violations in Kashmir – will make up the commission, we common people will accept it. Once we find that the commission is acceptable, we, Kashmiris, will agree to its recommendations. A judge is accepted if he is fair, just, impartial and dispenses justice. We don’t have any objection, so long as the victim who is at the receiving end of the violence believes that justice will be handed down impartially”.515

Mir Hafizullah recounted that in 2005 the APDP requested that the Prime Minister set up an independent commission to examine forced disappearances in Kashmir. To date, they have not received a response to their request:

“In 2005, when we passed the resolution in Delhi [calling for the formation of a committee of enquiry], there were 60 victims’ families – and also a few members from this panel – who signed the resolution. It was sent to the Prime Minister’s office by Uma Chakraborty to request the setting up of an independent commission to enquire into the disappearances. But we have not received any response until now”.516

He argued that other countries that lack India’s democratic character have managed to successfully set up such commissions. He cited the examples of Sri Lanka and the Philippines, where the missing have been officially identified and the perpetrators prosecuted for their crimes:

“There are commissions that have been formed even in undemocratic countries. I can tell you that in Sri Lanka, where more than 60,000 people have disappeared, a commission has been set up to enquire into the matter, and they have identified the people who have gone missing.

Even in the Philippines, which is a small country, there have been 1,500 disappearances and there, too, a commission for identifying people who have disappeared has been set up. Cases have been filed, and people responsible for these disappearances have been prosecuted for their crimes”.517

Looking at these examples, he finds it inexplicable that the Indian State can justify its failure at introducing such a body:

“I fail to understand how India, despite being the largest democracy in the world, has no such commission”. 518

The need to ratify the CPAPED

As Mir Hafizullah pointed out, although India’s signed the CPAPED, along with a large number of other nations, the more important question is whether India will ratify the convention and incorporate it into domestic law. He calls on Indian civil society to put pressure on the government to ratify the Convention so that those responsible for forced disappearances can

515 Full deposition of Mir Hafizullah available at page 377516 Full deposition of Mir Hafizullah available at page 377517 Full deposition of Mir Hafizullah available at page 377518 Full deposition of Mir Hafizullah available at page 377

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be held accountable:

“I recently received an email in which it is said that 57 countries have signed a convention on forced disappearances; it was signed in France, and India is one of the signatories to the convention… It is very unfortunate that only two countries have ratified this convention: One is Albania, and the other is Argentina.519 Two more countries are in the process of ratification, but the unfortunate thing is that India is not ratifying this instrument so that it will become law. What I understand is that enforced and involuntary disappearance is the most heinous crime among the violations of human rights… I am here to appeal to Indian civil society to pressure its government to ratify this convention, so that the people who are responsible for the crimes can be punished”.520

The need to repeal AF(J&K)SPA

As noted above, the AF(J&K)SPA gives enormous powers to the armed and security forces in the region. It also shields State actors from prosecution for the torture, extra-judicial killings and disappearances of Kashmiri people. The provisions of the Act are contrary to the rule of law, and it is imperative that the Act is repealed without reservation.

Advocate Mir Hafizullah calls upon the Indian people to support the demand that Kashmir should not be ruled by draconian laws:

“We are only seeking the appointment of such a commission and the revoking of the Armed Forces (Jammu & Kashmir) Special Powers Act of 1990, which has been responsible for the disappearances in Kashmir. Let us hope that together we will work for this, because it is a cause that everybody should support, and it is of great concern for all of us and for all human rights activists”.521

He points out that bestowing extraordinary powers upon the police, armed and security forces and shielding them from prosecution for human rights violations creates an attitude among forces that they are above the law and irredeemably dilutes the rule of law. The continued use of AFSPA and AF(J&K)SPA is, therefore, a concern for all Indian citizens, not just those who live in areas officially governed by these laws:

“Even if the issues are different in Manipur than in other places, nevertheless, the problem is the same whenever it refers to the Armed Forces Special Powers Act [AFSPA]. In Tamil Nadu the AFSPA is not applicable as far as I know; nor is it applicable in Uttarakhand and Uttar Pradesh. However, even there the attitude of the police is the same as in Jammu & Kashmir, Manipur and Nagaland, where the Armed Forces Special Powers Act is in force. It is right that all of us present here who feel that the rule of law should be established are against the AFSPA. If you give unbridled power to anyone, he becomes reckless and gets out of control”.522

519 In fact, four have ratified the convention; the other two are Honduras and Mexico.520 Full deposition of Mir Hafizullah available at page 377521 Full deposition of Mir Hafizullah available at page 377522 Full deposition of Professor S. M. Qadri available at page 306


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The cycle of violence

The Indian Government’s continuing emphasis on the maintenance of public order at all costs is dangerous. There is little evidence that the government intends to address the root causes of discontent and the hardship felt by many in the Northeast, in Kashmir and across mainland India. Instead, it uses its military and police forces to forcibly suppress dissent. This violent approach is counter-productive. Brutalising society leads to a cycle of perpetual violence by the State against its citizens and by citizens against the State. Where there is no longer any room for peaceful demonstration, dissatisfied citizens have little choice but to turn to violence to make their grievances heard.

As K. S. Subramanian observed, the government hands political problems to the police and the armed forces to “solve”, rather than addressing the roots causes of discontent, which include poverty, inequality and displacement:

“The phenomenon of political violence needs to be handled primarily in a political way rather than by relying mainly on administrative and police measures. As in the case of Naxalite violence, the political class has merely transferred its burden to the administrative and police machineries. The attempt to solve political problems by exclusive reliance on administrative machinery is only likely to lead to increasing violence and repression in society”.523

In Kashmir and the Northeast, violence by State actors has led to increased radicalisation and the emergence of increasing numbers of militant groups who resort to violent means to voice their demands. To break this cycle of violence, the Indian Government must address the dissatisfaction and desires of its citizens in the political forum rather than treating demands for self-determination as law-and-order problems to be dealt with by force.

523 Supra, footnote 82, page 169

Chapter 5: Violence related to economic development

As the Indian State pursues a central role on the world’s economic platform, its industrial development programmes, forest development programmes and dam-building activities have had seriously adverse consequences for many citizens, particularly Adivasis.524 The structural adjustment reforms of the 1990s and the growth of neo-liberal economic development policies have further compounded the inequalities and injustices these groups have historically faced, particularly in the arena of economic development. Development programmes are displacing huge numbers of Indian citizens. Economic development in India has caused large-scale displacement of Adivasi communities in Madhya Pradesh, Andhra Pradesh, Jharkhand, Orissa and Chhattisgarh. Hydroelectric energy plants, mining, de-forestation and industrial development in these areas have had serious consequences for the Adivasi population. According to the Ministry of Tribal Affairs, Scheduled Tribes constitute 8.1 per cent of the total population of India, but constitute 55.16 per cent of the total displaced people in the country.

The poorest sections of society in India find it difficult to realise their constitutional rights. Development-related struggles for land, minimum wages and a life of dignity often bring them into conflict with State actors and landlords, who intervene in the name of law and order.525

With economic liberalisation has come an upsurge of unrest from villagers and forest dwellers, particularly in response to land acquisition policies facilitating the corporate (international, as well as national) seizing of land, including land intended for Special Economic Zones (SEZs).

Resistance to forcible displacement, denial of compensation and loss of livelihood manifests itself through the creation of people’s movements. This popular revolt against neo-liberalism has taken place alongside the expansion of armed Maoist groups and Naxalites, who often support these movements. The activities of Maoists now extend across a wide swathe of territory in nine Indian states – Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Orissa, Uttar Pradesh and West Bengal; they also have an armed presence in almost half of all 28 Indian states. There is a conspicuous cycle of violence in these regions, in which the State’s armed forces frequently conduct arrests and use torture and killing to suppress opposition to its policies.

524 The former Secretary of the Planning Commission estimates that 40 million Adivasis have been displaced by economic development activity. ‘The Cost of Living : Narmada Dam and the Indian State’ by Arundhati Roy in Experiencing the State, Eds. L.I Rudolph and J. K Jacobson, New Delhi: Oxford University Press 2006. For example, 60 per cent of those displaced by the Narmada Dam project and its related activities were Adivasis and tribal people. Supra, footnote 82, page 39

525 Supra, footnote 83

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With India’s increasing importance in the international forum and a self-styled emphasis on economic development, the middle and upper classes often appear ambivalent towards the State’s violent treatment of the marginalised and dispossessed. The poorest and most vulnerable members of Indian society are often viewed as dissenters of the accepted social and economic order and “trouble-makers” opposed to India’s economic development.

In this section, we will examine the struggles of citizens in Chhattisgarh, Jharkhand. Andhra Pradesh and West Bengal who spoke out against the clearance of land for SEZs and steel and manufacturing plants. We will then review their accounts of the violence inflicted upon them, mainly by the police and special forces. Affected citizens from these states attended the Independent People’s Tribunal to testify to the brutalities they have suffered and witnessed at the hands of the authorities. In Chhattisgarh and Jharkhand, those that have raised their voices against the displacement of thousands of people have been branded Naxalites and Maoists by the police and government officials. Nandini Sunder, a Professor of Sociology at the Delhi School of Economics, describes the way in which these labels are used to delegitimise protestors:

“The government has…overturned the concept of insider vs. outsider to suit itself. The term ‘outsider’ is used for instance against the Naxalites… The term outsider is used to refer to anyone who disagrees with the State’s concept of development or anyone who voices dissent over its undemocratic acts. It is used by newly arrived business interests to refer to those who stand against the logic of capital accumulation and by landlords who have grown old in the ways of exploitation and resent any breath of new thinking among the lower castes or classes”.526

Once they apply these labels, authorities act with impunity, often using torture, false imprisonment and extra-judicial killing to silence opponents of their economic development policies.

The growth of industrialisation

Rapid industrialisation of the world’s emerging market economies, particularly in Asia, has led to unprecedented and unexpected demand for raw materials to fund the construction boom in the world’s most populous countries: China and India. Capitalising on eight years of double digit revenue growth, Indian and multi-national mining companies are looking for new mineral deposits in increasingly remote and hostile environments to satisfy the global demand for such materials.

India’s previously unexploited but vast iron ore and coal reserves in the central and eastern belt of the country represent attractive investment opportunities. The global steel boom, which must be fed by intensive iron-mining, has led to an intense focus on the states of

526 Subalterns and Sovereigns: An anthropological study of Bastar (1854-2006) by Nandini Sundar, New Delhi: Oxford University Press 2007 (Second edition), pages 260-261


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Jharkhand, Orissa and Chhattisgarh, which together account for 70 per cent of total iron ore reserves in India.527

Significant incentives have been assured to companies who establish large-scale projects in areas that have the highest populations of Scheduled Tribes, such as in the district of Dantewada, where Essar Steel Chhattisgarh Limited is in the process of trying to acquire 900 hectares to build a new 3.2 million-tonne steel plant.528 Tata Steel is also attempting to acquire 2,169 acres of agricultural land that currently houses 12 villages in order to establish its proposed 5 million-tonne plant at Lohandiguda in the Bastar district of Chhattisgarh. A journalist visiting Lohandiguda reported that most people in all 12 villages were against the plant proposal, at least in its current form.529

The legal framework of land acquisition

Special Economic Zones (SEZs) are areas of land earmarked for industrialists and large corporations and companies. They are deemed to be foreign territory for the purposes of trade operations, duties and tariffs. The Special Economic Zone Act was passed in 2005 to facilitate economic growth and entice foreign investors to India. Amongst incentives provided to investors in the areas are tax breaks and low land prices. This section will briefly examine attempts to set up SEZs in Visakhapatnam, Andhra Pradesh and Nandigram, West Bengal, and the opposition these efforts have faced from the local population.

The Land Acquisition Act (1894) enables the government “to acquire any property for public interest”.530 The Act sought to legitimise land acquisition by the British for their own economic gain. The Act does not define public purpose, nor does it provide for the resettlement and rehabilitation of displaced persons. It is ironic that this colonial Act, with its barely concealed intentions to exploit, today remains the primary legal instrument for the acquisition of land for private companies in India.531

Under the Panchayats Extension to Scheduled Areas Act of 1996 (PESA), the Government is obliged to obtain the consent of villagers and affected persons before their land can be acquired. In practice, however, the consent of the people is often obtained by dubious means. This is discussed in more detail below in the context of Tata Steel’s acquisition of land in Chhattisgarh.

The legal framework used to suppress opposition to economic development

The Government’s strategy to combat Naxalism in the region – combined with its vision of these states as being ripe for industrialisation – has been one of violence and oppression. This is unsurprising given the Central Government’s repeated emphasis on the deployment of troops

527 Orissa and Jharkhand are home to nearly 25 per cent each (or 3.4 billion tonne) of total iron ore deposits, followed by Chhattisgarh with 20 per cent (or 2.7 billion tonne). ’Iron ore influencing mega steel projects’ by Venugopal Pillai, Project Monitor, 3 October 2005. Available at: http://www.projectsmonitor.com/detailnews.asp?newsid=9775

528 Government of Chhattisgarh Industrial Policy (2004-2009), paragraph 4.4.10529 ‘Chhattisgarh Tangle’. Available at: http://www.cgnet.in/N1/Chhattisgarh%20tangle.doc 530 Land Acquisition Act 1894, section 6531 The land is acquired by state governments who then offer it to private companies

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in areas of civil unrest such as the Northeast, Kashmir and Punjab in the mid-1980s and 1990s. The State is also invoking legal provisions to suppress dissent to its economic development programmes and to push through land acquisition.

Section 144 of the Criminal Procedure Code enables the prohibition of any named activity where a Magistrate considers that such direction is likely to:

“prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquility, or a riot, or an affray”.

Charges of unlawful assembly, rioting, public nuisance and disruption of the peace are other common grounds for the arrest of outspoken opponents to land acquisition.

The Indian Government also uses anti-terrorist legislation to suppress civil dissent at all costs and forces through policies despite democratic consensus against them. The Andhra Pradesh Suppression of Disturbances Act of 1967 was adopted by the State Government to combat the Naxalite movement. It enabled the State Government to notify tribal areas as “disturbed areas”, giving the police enormous powers, including the right to shoot to kill. Prior to the 2004 repeal of the Prevention of Terrorism Act (POTA) of 2002, 3,000 people in Jharkhand alone, including children and elderly people, were jailed under its provisions.532 The majority of those detained were Adivasis.533 The Government expressly outlawed Maoist groups in the Unlawful Activities (Prevention) Amendment Act of 2004, setting the stage for further legislation. The 2004 Act goes so far as to criminalise displays of opposition to governmental policies to acquire land under the Land Acquisition Act of 1894 and allows the State to evict people for mining, SEZ or industrialisation projects.

The State Government of Chhattisgarh enacted the Chhattisgarh Special Public Security Act of 2005 (CSPSA), which came into force in March 2006. The CSPSA was introduced with the express aim of combating the growing threat from Naxalism. In reality, however, it is another example of legislation designed to suppress political dissent in the long tradition dating back to the colonial period.534 Couched in the language of security and protection, it has culminated in the increased repression of the citizens of Chhattisgarh and the suppression of their constitutional rights.

It is also possible to view the CSPSA as marking a break in the tradition of national security laws; the CSPSA goes above and beyond the provisions of previous repressive laws. The CSPSA authorises the police to detain a person for committing acts, which among other things, show a “tendency to pose an obstacle to the administration of law” and provides that any person whose actions “encourage(s) the disobedience of the established law” will be considered “unlawful”. This provision effectively criminalises any protest against the authorities. This Act has even further eroded the rule of law in India, giving wide-ranging

532 Supra, footnote 87 533 Supra, footnote 87 534 Such as the Madras Suppression of Disturbances Act 1948, AFSPA and AF(J&K)SPA in the North East and Kashmir

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powers to the police and paramilitary forces to detain any citizen who dares to raise his voice in opposition to the State-sponsored human rights violations that are committed daily in Chhattisgarh.

First, we will examine in more detail the specific situations in the states of Chhattisgarh, Jharkhand, Andhra Pradesh and West Bengal to highlight the ways in which the Indian government has conspired with multi-national companies to displace large numbers of Adivasisfrom their mineral-rich land to open up areas for industrialisation. The methods employed by the Government and local officials to force industrialisation are increasingly violent and are characterised by repeated disregard of the constitutional rights of Adivasis to inhabit and make a living from their land. Sudha Baradwaj from the People’s Union for Civil Liberties (PUCL), Chhattisgarh, summarised the reasons behind economic interest in the region:

“Chhattisgarh, Orissa and Jharkhand…are the medial states of this country, and they are extremely rich in resources like iron, ore, limestone, bauxite, uranium, and diamond. At the moment, there is a huge effort of corporate groups to loot in that area, which is not only by foreign companies, but also by foreign and Indian large companies. At any cost they want to acquire these lands; at any cost they want to mine here”.535

She pointed out the main obstacle to these industrial interests:

“There is only one small problem: that very poor people, poor Adivasi people, are sitting on these lands. Therefore [in the minds of the investors], they must be removed at all costs”.536

The creation of Chhattisgarh

The State of Chhattisgarh was established on 1 November 2000 after Madhya Pradesh was divided. Approximately 38 per cent of Chhattisgarh’s 21 million-strong population live below the national poverty line. While approximately 44 per cent of Chhattisgarh’s population comprises of Adivasis and Scheduled Castes, Adivasis constitute 78.51 per cent of the total population in the southern district of Dantewada, where many of the events described in this section occur. Forests cover approximately 44 per cent of Chhattisgarh, and the state is rich in iron ore, coal, limestone and bauxite. Ilina Sen described the expectations of Chhattisgarh’s people when the state was newly created, which were in stark contrast to those of the Central Government:

“When Chhattisgarh was created, people among us were under the illusion that the new state had been created for its people so they could have more space and a say in governance and be able to place their demands before the Government. Very soon, however, we became convinced that this was not to be the case at all. The new state was created to facilitate the movement of capital and to facilitate investment. As the policy documents of the new state began to roll out, it became more and more evident. The vision planned for our state was written not by any workers’ organisation, nor by intellectuals in Chhattisgarh, nor by any people’s organisation, but by a firm called PricewaterhouseCoopers. It is a multi-national

535 Full deposition of Sudha Bharadwaj available at page 263536 Full deposition of Sudha Bharadwaj available at page 263

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firm, and when it wrote the state’s “vision plan”, it was evident in the document that the intention was to turn Chhattisgarh into an investor-friendly state. That’s when the people of Chhattisgarh started protesting”.537

The creation of the new states of Chhattisgarh and Jharkhand has, as one commentator describes, “worked to intensify predatory industrialisation”.538 At its inception, the state of Chhattisgarh was among the poorest states of India.

“The people of that region [Chhattisgarh] have been deprived of their right to life, right to livelihood, right to education and other fundamental rights for a long time. They did not have any rights before independence, and neither do they have any today in independent India There has been no development whatsoever in that place. The government puts the entire blame [for this] on the Maoists [Naxalites] by declaring that they are active in that area and are working to destabilise it”.539

Violence related to economic development: Chhattisgarh

“Official documents of the Government of India talk about the need for development and land reform, while helicopters drone overhead and security forces cordon off villages protesting against their land being acquired for steel plants. The extraordinarily beautiful landscape of Dantewada [district of Chhattisgarh] is now militarised, perhaps irrevocably so”.540

A discussion of the situation in Chhattisgarh would not be complete without examining the emergence of the Salwa Judum, a State-sponsored community-based vigilante force, which, in the name of combating the Maoists and Naxalites, has connived to displace tens of thousands of villagers, thereby aiding the State Government in its quest for economic development. Since the Salwa Judum’s inception, violence against the local population has escalated on an unprecedented scale. Thousands of people have died as a result, and many more have been displaced and rendered destitute as their homes and livelihoods were destroyed. Visitors to the southern districts of the state have noted the disturbingly war-like militarisation of the area:

“In Dantewada district, it is a common sight to see locals moving around with traditional weaponry such as bows and arrows. But to our team’s surprise and concern, we found the sight of heavily armed local surveillance parties of not only security personnel, but also [of] local people on their bicycles in groups of five (and often more), carrying three assault rifles, one two-inch mortar launcher and a stun-gun, to be just as common”.541

The rule of law has completely broken down in the southern region of Chhattisgarh.542 Rape, torture, murder, the use of child soldiers, mass displacement of civilian populations and increased militarisation are the hallmarks of this site of internal conflict. In failing to protect

537 Full deposition of Ilina Sen available at page 255538 Supra, footnote 527, page 286539 Full deposition of Ilina Sen available at page 255540 Supra, footnote 527, page 266.541 As described by PUCL in its field notes included in its report ‘When the State makes war on its own People’, April

2006 at page 14. Available at: www.pucl.org/Topics/Human-rights/2006/salwa_judum.pdf542 In Dantewada, Jagdalpur and Kanker


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its population from the activities of the Naxalites and by condoning the actions of the Salwa Judum, the State Government of Chhattisgarh and the Central Government of India are in breach of a number of their legal, constitutional and international obligations. The State Government has relinquished its responsibility to uphold the rule of law in the area, abdicating in favour of violent tactics used by the Salwa Judum to obtain its economic development goals.

Tata Steel and Essar Steel plants

As we have noted above, the Government is obliged to obtain the consent of villagers and affected persons before their land can be acquired under the provisions of the Panchayats Extension to Scheduled Areas Act of 1996 (PESA). In practice, however, land is being acquired by forcible means. Ilina Sen, wife of the political prisoner Binayek Sen, described the circumstances under which affected villagers were cheated out of their land by Tata Steel and Essar Steel:

“The law has been subverted completely. These areas are governed under the Fifth Schedule of the Indian Constitution, according to which it is mandatory that any development project requires the assent of the people of that area. The project requires the consent of the gram sabha[village council (statutory)], and it is only with its consent that the project can go ahead.

Many of you know…that the provisions of the Panchayat Extension to Scheduled Areas have been undermined with total impunity. Even though people refused to part with their land, a gram sabha was convened forcefully. If you had seen the photos of the gram sabha, you would have noticed that it consisted of a stage similar to this one [the one in this auditorium], on which sat the collector and the company representative. The people for whom the sabha was organised were made to sit on the ground. The collector presented his agenda and explained to the villagers that the land acquisition was to go ahead, and the people were just supposed to give their consent. If people protested, if they did not want to give up their land, they were pressurised into doing so.

The same thing happened in Lohatipura. Land acquisition was to take place in some villages around Lohandegura, but people refused to part with their land. They were then coerced into doing so. It was presented as if people had unanimously voted for ‘development’”.543

Ilina Sen went on to relate the methods that local officials and representatives from steel companies use to push villagers into accepting the takeover of their land:

“The elected representatives and the members of the Legislative Assembly were taken on a guided tour to Jamshedpur, where they were shown what was really meant by development. And Tata said that development was about having a beautiful township, which is what Lohatigura would be converted into. They told the elected representatives that a beautiful hospital, like the Tata Main hospital in Jamshedpur, would be built to save people having to walk 30 kilometres to get to a hospital or primary health care center, as they were currently

543 Full deposition of Ilina Sen available at page 255

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doing. Even after showing them golden dreams of development and taking them on a tour, the people refused to give in to the demands of the company. That was when the bloodshed and disturbances took place”.544

In the cases of the projects by Tata Steel at Lohandiguda and Essar Steel at Dantewada, gram sabhas were held in which villagers were forced to sign their consent. To force villagers to consent to their own displacement, authorities used the prohibition on the gathering of five or more persons and the arrest of outspoken opponents to the land acquisition schemes on charges of disrupting the peace. Ilina Sen describes how these draconian measures were employed:

“In Bhurli and Jhansi, where Essar [Steel] is going to acquire land for another steel plant, Section 144 was introduced because people were constantly saying no to the project. Section 144 was imposed on the village. One individual from each house was taken at gunpoint and made to put their thumbprint on a document saying they agreed to the land acquisition. All this was done in a tin shed where the collector and the company representative where sitting. This travesty was done in the name of the gram sabha”.545

Naxalite activity and the Salwa Judum

Economic development has caused large-scale displacement of Adivasi communities across India. In Chhattisgarh, as in many other states across the country, people’s movements resisting forcible displacement, denial of compensation and loss of livelihood have been supported by armed left-wing groups including Naxalites, who have retaliated with violence to the Government’s use of force.546 The State’s armed forces in these regions frequently conduct arrests and use torture and killing to suppress opposition to government policies.

In June 2005 news reports began emerging about a "spontaneous people’s movement" against Maoists in southern Chhattisgarh known as the Salwa Judum.547 Rather than an informally aggregated group, the Salwa Judum is in fact a State-organised counter-insurgency campaign responsible for extreme violence in a number of districts in the state and for forcing people from their villages and into government-run camps.

There is apparent in Chhattisgarh an unmistakable connection between industrialisation, the activities of the Salwa Judum and the displacement of villagers. Two days after the Salwa Judum was officially launched, the Chhattisgarh State Government signed a memorandum of understanding with Tata Steel for a steel plant and captive iron ore mine in the Bastar district of Chhattisgarh. On the same day, the State Government signed a similar deal with Essar Steel for a plant in Dantewada, Chhattisgarh.548 Alongside its Salwa Judum counter-insurgency

544 Full deposition of Ilina Sen available at page 255545 Full deposition of Ilina Sen available at page 255546 Economic development in India has also caused large-scale displacement of Adivasi communities in Madhya Pradesh,

Andhra Pradesh, Jharkhand and Orissa. Hydroelectric energy plants, mining, de-forestation and industrial development in these areas have had serious adverse effects on the Adivasi population.

547 According to Nandini Sunder: ‘A literal translation of this Gondi term is not the Government preferred ‘Peace Campaign’ but ‘Purification Hunt’’. Supra, footnote 527, page 277

548 ‘New Battle Zones’ by Aman Sethi, Frontline, Volume 24, Issue 18, September 8-21 2007. Available at: www.flonnet.com/fl2418/stories/20070921501101800.htm


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campaign, the Indian Government is increasingly acting as an agent for major industrialists, enabling them to acquire land by invoking colonial measures such as the Land Acquisition Act of 1894.

The tactics of the Salwa Judum cause the displacement of Adivasis under cover of war. Such displacement is strongly contested in other areas of India undergoing economic development, such as West Bengal, where the Government is establishing a number of special economic zones (SEZs). Displacement renders land free for development and opens up hitherto inaccessible areas for economic exploitation.

In tackling the Naxalite problem in India, the Ministry of Home Affairs recommends the modernisation of State police forces, including the provision of modern weaponry and communication equipment, the fortification of police stations in Naxalite areas, the provision of vehicles protected against landmines and the deployment of more troops to affected regions, including that of southern Chhattisgarh.549 Senior police officers and even the Chief Minister of Chhattisgarh, Raman Singh, admit that Naxalite violence has increased after Salwa Judum began its operations in 2005, but they are adamant that the use of the Salwa Judum is the best way to fight the Naxalites. In fact, the majority of the victims of Salwa Judum violence are not Naxalites but ordinary villagers whose land is coveted by industrialists and the State Government for major industrialisation projects. An atmosphere of fear and violence prevails in areas dominated by Naxalite violence and the counter-campaigns of the Salwa Judum.

In his testimony before the Independent People’s Tribunal, Himanshu described the creation of the Salwa Judum and the methods it employs to “fight Naxalism”:

“The Government has collected some 2,000 to 3,000 ordinary people and policemen and formed an organisation called the Salwa Judum in order to curb the Maoists’ activities. This organisation is abusing its power: It goes to different villages and burns the houses, kills the men and rapes the women. Those who escape start living in the forest, where they are attacked again and again.

The Salwa Judum is doing this to capture people’s land, and the helpless villagers are forced to live in the forest…. They are subjected to extortion and high-handedness by these Salwa Judum members, who misuse the power delegated to them by the Government”.550

Opponents to economic development labeled “Naxalites” and “terrorists”

Villagers who opposed the acquisition of their land and homes for steel plants have been targeted as so-called Naxalites. Again, we see a familiar pattern emerging: Those who disagree with the State’s concept of development or voice discontent with its undemocratic acts are labeled “anti-government”, “anti-development”, “Naxalites” and “terrorists”. This observation is borne out by Ilina Sen’s description of what followed:

“People who raised their voices about the conditions of Bastar were called Maoists and

549 Status paper on the Naxal Problem, Internal Security Division, New Delhi: Ministry of Home Affairs, 2005 550 Full testimony of Himanshu available at page 348

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accused of disturbing law and order. Being labeled a Maoist gives the police free reign to torture and murder them, because the victims will not be counted. People who try to question such behavior are silenced… People who raise their voices, people who protest against these events, are declared subversive”.551

Kamal Mitra Chinoy of the JNU Teacher’s Association concured with this view, pointing out that Adivasis protesting displacement as a result of industrialisation in Chhattisgarh has been characterised as an anti-national movement:

“More than a hundred thousand Adivasis have been forced from their lands. Part of the reason for this is so that Tata, Essar, and other companies can get their land and set up their industries. This entire globalisation ideology has led to the equating of development struggles – which are essentially the Maoist movements and other movements, including the Communist Party of India [CPI] in Dantewada and elsewhere – with anti-national activities”.552

Caught between Naxalites and the Salwa Judum

The tribal people living in areas of Naxalite and counter-Naxalite activities in Chhattisgarh are the victims of violence from both sides. They are offered no protection from rape, theft, murder and torture by Government forces, but are often themselves targeted as Naxalite sympathisers. In its 2005-2006 Annual Report, the Ministry of Home Affairs stated that many of the displaced were joining the Naxalite movement, which was leading to violent conflict in several states.553

In characterising the displaced as Naxalites, the Government is creating a cycle of violence in which the dispossessed become opponents of the State. In turn, the goal of their eradication legitimises the acts of the Salwa Judum, a self-styled anti-Naxal campaign.

Ilina Sen described the way in which the violence in Chhattisgarh escalated since the creation of the Salwa Judum:

“In such a situation, now it really has become almost a liberation struggle for them. How do they defend their fields and their villages? Unfortunately, if the entire purpose of the Chhattisgarh government was to suppress Naxalites or to do away or exterminate Naxalites, then absolutely the opposite has happened. Now you have forced people to take sides, and, unfortunately, a larger proportion has chosen not to be on your side. This is the situation now, and it has become a war-like kind of situation”.554

Mangoo, from Dantewada district in Chhattisgarh, described the impossible situation in which his village found itself: forced to choose between the Naxalites and the Salwa Judum:

“The Salwa Judum started here two years ago, and the villagers in a few other places nearby joined the Salwa Judum even before that. The elders of our village came together and discussed whether to join the Salwa Judum, who were organising a procession. The elders decided not to join. After this, we received letters from people in 10 to 15 other villages stating that if we

551 Full deposition of Ilina Sen available at page 255552 Full deposition of Kamal Mitra Chinoy available at page 258553 Annual Report 2005-2006, Ministry of Home Affairs, New Delhi: Government of India, 2006554 Full deposition of Sudha Bharadwaj available at page 263


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didn’t join the Salwa Judum, they would come to our village with the police, break open our houses and shoot us dead. After receiving these letters we agreed we would have to join them”.555

Mangoo went on to describe the mass exodus from his village and the destructive methods by which the Salwa Judum coerced villagers:

“There are 270 houses in our village, and one person from every house went with the procession, all of us empty-handed. People from other villages were carrying axes, bows, arrows, knives and other weapons, but we had none. We went 60 to 70 kilometres on foot, crossing two or three mountains. There were thousands of other people, and we were at the back of the crowd. The others in the procession knew everything and were issuing directions about where to go and what to do.

Those of us from the Dantewada district were told to go and burn houses in one specific village, confiscate all the grain, burn it, and spread it all over the ground. We were also told to seize all the cattle, poultry, goats, pigs and other livestock we could find and bring them back with us”.556

Having witnessed the devastation caused in this village, Mangoo and his fellow villagers returned home:

“Others in the procession burnt all the houses, and we felt very sad about it. We almost felt like crying. We decided to go back to our village and die there with our children. I thought that there was no point in continuing with the procession and that I have ruined my whole life by taking part in it, even though I did not actually burn anyone’s house”.557

He described the manipulative tactics that the Salwa Judum uses to encourage villagers to join them:

“The leaders of the Salwa Judum fooled us into joining them by saying that we would go to other villages and make them join, too. But instead they burned their houses”.558

Himanshu, who accompanied Mangoo, described the severe difficulties the villagers have faced since their return:

“Since it is forbidden not to participate in the Salwa Judum, Mangoo’s village was attacked again. Now these people are hiding in the jungle and have two options: either to join the Salwa Judum and accompany government policemen to attack others villages or be labeled as Naxalites and be killed by the police”.559

Himanshu’s description highlights the impossible situation in which many thousands of people in Chhattisgarh have found themselves.

555 Full testimony of Mangoo available at page 387556 Full testimony of Mangoo available at page 387557 Full testimony of Mangoo available at page 387558 Full testimony of Mangoo available at page 387559 Full testimonies of Mangoo and Himanshu available at page 387

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Atrocities committed by the Salwa Judum

The tactics employed by the Salwa Judum include torture, sexual violence and murder. Rajmani, from Venkata Para village in Dantewada district, witnessed the brutal excesses of the Salwa Judum in her village, including the arrest of two innocent girls as Naxalites:

“One day the people of Salwa Judum came to my village and burnt our houses, killed all the males they were able to find and raped all the females they could catch. My father was killed by these people last year. The Salwa Judum raped two girls, Kumari and Kamli, who were not able to escape, and I witnessed this horrifying incident. I saw the officers from Salwa Judum rape the two girls, dress them in Naxalites’ uniforms which they had brought with them, and take the girls away and lock them in the police station, declaring both of them to be Naxals. These girls are still in jail”.560

Munkee, from Vichhapara village, described how his cousin was arrested as an alleged Naxalite. Despite their family’s efforts to rescue her, she is still detained:

“My cousin-sister and I were at home. The Salwa Judum people came, caught me and my cousin’s sister and took us to the police station; they kept us there for a week. They cut my cousin’s sister’s hair, made her wear a Naxalite uniform and put her in prison. My maternal uncle came to the police station and freed me by paying a bribe of 3,000 rupees… Her sister was also alleged to be a Naxalite and is still in jail. To date, we have paid a lawyer 25,000 rupees to rescue her, but she is still there”.561

In addition to terrorising the local population and committing widespread human rights violations, the Salwa Judum is committed to displacing villagers from their homes. Echoing the testimonies of Mangoo and Himanshu, Rajmani described the devastation that the Salwa Judum causes to villagers, rendering them homeless and stripping them of their livelihoods. As in tens of thousands of other cases related to the displacement of tribal people, the criminal justice system has failed to provide any assistance in the face of widespread lawlessness:

“Salwa Judum officers have attacked our villages regularly, and in order to escape, we have started living in the jungle. They have killed our cattle and have not left even a single house untouched. The police are aware of all this, but do not even register our report”.562

Munkee from Chhattisgarh reported the similar destruction of his village, which has forced the villagers to flee to the forest:

“The Salwa Judum people set my house on fire and burned my entire stock of grain. At present, we are hiding in the forest and are living on grass and whatever other plants we can find. The Salwa Judum captured and took all our cows, goats, pigs, poultry and other livestock and ate them”.563

560 Full testimony of Rajmani available at page 348. Cf Section on sexual violence.561 Full testimony of Munkee available at page 391562 Full testimony of Rajmani available at page 348563 Full testimony of Munkee available at page 391


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The majority of Adivasis support neither the Naxalites nor the Salwa Judum. Left with nothing after the raids on their villages by both Maoists and the Salwa Judum, tens of thousands of people have fled to government-run relief camps, where they are forced to take shelter due to destitution and fear of retaliation from both sides.

Population displacement

A direct result of the increased violence in several districts of Chhattisgarh has been the large-scale displacement and forced migration of whole villages into camps as part of the government's anti-Maoist/Naxalite policy; in the camps, villagers survive in miserable conditions. More than 100,000 people are now internally displaced, living in temporary roadside camps, with relatives or hiding in the forests, their daily lives completely disrupted.564

Some have shunned the camps, preferring to join either the Naxalites or the Salwa Judum. Nandini Sunder, a Professor at Delhi University who has conducted extensive fieldwork in the region, describes the situation in three districts565 of Chhattisgarh in 2006:

“Over a hundred thousand people have been displaced…into sub-human roadside camps where the choices are starvation or lumpenisation. Large numbers have fled into neighbouring districts and states where they camp, desperate and alone, under trees, in makeshift tents, or live at the mercy of relatives and friends, doing unaccustomed wage labour. An equal number are in the jungles with the Naxalites. Young men armed by the Government wield their guns with new-found machismo, excited when they find and kill some ‘dreaded Maoist’ who is often a former neighbour or even a relative”.566

Sudha Bharadwaj from PUCL Chhattisgarh made a similar observation at the Tribunal regarding the lack of choices available to those living in southern Chhattisgarh:

“If you look at the very modus operandi of the Salwa Judum…it is not any spontaneous uprising against Maoists; it is a State-sponsored system in which people are actually being forced to come into camps. They are told that: If you are not coming into the camps, then that means you are Naxalite supporters, so therefore you are the enemy. Basically, people are being told to make a choice: Either you come to the camps or go to the jungles. Now, 350,000 people are affected here”.567

The limited options available to the local population, combined with the dismal conditions of the camps, have served to increase the numbers of militants on the side of the Government or the Naxalites. The Government-run camps lack basic amenities, such as clean drinking water, healthcare and education facilities. The standards of hygiene are very low, and only the most desperate remain in the camps for sustained periods of time:

“The Government of Chhattisgarh claims that above 50,000 people are in the camps; let us take their word for it. Actually many people have run away from those camps. Those camps

564 The Wall Street Journal and Nandini Sunder put the figure at approximately 100,000565 Bastar, Kankar and Dantewada566 Supra, footnote 527, page 265567 Full deposition of Sudha Bharadwaj available at page 263

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are… a kind of confinement, a prison, and many people are opting out of that kind of arrangement”.568

Independent sources indicate that the total number of displaced people is considerably higher. In its cover story in September 2007, Frontline magazine reported that:

“In the worst-affected Dantewada district, over 65,000 people are living as refugees in their own land and an equal number of them are suspected to have fled to neighbouring Orissa, Andhra Pradesh and Maharashtra. More than 600 of the 1,354 villages in the district are deserted and over 42,000 hectares of agricultural land lie fallow. The residents of these villages joined the Salwa Judum and fled after Naxalites threatened to kill them. Indeed, thousands of people, including policemen and civilians, have been killed by Naxalites since June 2005, when Salwa Judum was launched”.569

Modkan Joga describes the violence employed by the Salwa Judum to expel them from their homes:

“The Salwa Judum and police forces surrounded our village. They went about destroying and burning our houses. They started beating up the villagers, and they also executed a village elder by the name of Mardkam Arma. After the village was burnt and destroyed, the surviving villagers fled our village and hid in the nearby hills. We eventually made our way to the Andhra Pradesh border and crossed over. As of now, we live deep inside the Andhra Pradesh forest reserve”.570

He contrasts life before the Salwa Judum forced him to leave his village with the conditions of extreme deprivation in Andhra Pradesh:

“In my village I was very prosperous, as I had 20 acres of forest and many goats, pigs and chickens. After the Salwa Judum attacked us, we became very poor, and now in Andhra Pradesh we have to beg for our food. The Salwa Judum took away 25,000 rupees from my house. And now, in Andhra Pradesh, we are unemployed as the Government thinks of us as Naxals. The local police and forest officials also regularly beat us up. In Andhra as we do not have any income, we are forced to bathe in the nearby sewer and drink dirty water”. 571

The displacement of villagers in the region as a result of Naxalite activities and the State Government-sponsored Salwa Judum is a crucial element of the State Government’s programme of economic development. Ilina Sen described the rationale behind the policy:

“Adivasis were being physically displaced and transported to relief camps in the name of creating security. But actually… it was to clear the ground for the illegal acquisition of land”.572

568 Full deposition of Sudha Bharadwaj available at page 263569 ‘Strategy Gone Awry’ by Purnima S Tripathi, Frontline, Volume 24 - Issue 18, 8-21 September 2007.570 Full testimony of Modkan Joga available at page 364571 Full testimony of Modkan Joga available at page 364572 Full deposition of Ilina Sen available at page 255


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Sudha Bharadwaj elaborated:

“The activities of the Salwa Judum in Bastar started from June 2005. This was the time when the outfit was launched. June 2005 was also the time when memoranda of understanding were signed. This region is… supposed to be rich in diamond and uranium also, and apart from these, it is rich in iron ore, coal and limestone. In this area the ground clearing operation which is going on is of such a scale that in Bastar the area that has been cleared out was an area of 644 villages. A population of three-and-a-half lakh is involved here; 644 villages are affected. When the Salwa Judum goes there and picks up people and asks them to go to the camp, they destroy their houses, they destroy their fields, whatever little livelihood, whatever little Adivasi people have. Their cattle, their hens and their goats – everything is finished off. Basically, the option of living on their land has been closed for the Adivasis”.573

Socio-economic conditions of the dispossessed

The clearance of the villages in the region has stripped the local population of their homes and livelihoods. The Salwa Judum’s counter-insurgency campaign has only increased violence in the region and has divested the Adivasis of Chhattisgarh of the little they had to survive:

“The people of Bastar were undergoing the ultimate insult… They, (the Adivasis), had enjoyed a certain level of freedom. Although they had very little cash, the forests were still theirs. Their lives and livelihoods depended on the forest. Their systematic exclusion from all entitlements was the ultimate ignominy”.574

Tens of thousands of villagers have chosen to flee to the neighbouring states of Andhra Pradesh, Orissa and Maharashtra rather than live in the Government-run camps.

Dr. Hanif and his colleagues from Sanchetana are providing medical assistance to large numbers of Adivasis who are fleeing the violence in Chhattisgarh to Andhra Pradesh. The influx of the internally displaced into Andhra Pradesh began in February 2006. Dr. Hanif describes the way in which he and his colleagues set up a small medical camp near the border in June 2006. The conditions they work in are perilous due to the operations of the Salwa Judum and Naxalites in the area:

“Some people are afraid to work in these areas, but my team goes. The Naxals have protested many times, warning us that they will shoot us if we work in the area”575

He described the miseries that the fleeing Adivasis of Chhattisgarh experience as they seek refuge in the forest areas:

“The plight of the Adivasis is really bad. Their children do not get food and water and do not have access to medicines. Under such conditions they are dying in the forest”.576

573 Full deposition of Sudha Bharadwaj available at page 263574 Full deposition of Ilina Sen available at page 255575 Full deposition of Dr. Hanif available at page 382576 Full deposition of Dr. Hanif available at page 382

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Dr. Hanif described the difficult conditions in which he and his team work – viewed with suspicion by both the police and the Naxalites:

“Sometimes when we are in the forest areas giving medical attention, food, water and clothing to the Adivasi children, the police come and ask us what we are doing… They arrest us and take us to Badrajulum. There, the Chhattisgarh and Central Intelligence personnel ask us what is our connection with the Naxals. In this way, the police try to scare us.

In February 2007, Naxals killed one of our workers, saying that they had observed us going to the police station in Badrajulum on a number of occasions. They were alarmed that we were providing the police with information. But if we do not go to the police station, the police threaten us. What can we do? On the one hand, the police are always trying to scare us, and on the other, the Naxals are doing the same. We are being beaten and killed from both sides. We are continuously battling both the police and the Naxals. We don’t want any killings; we just want to help the Adivasis live through their daily struggle”.577

The Adivasis who have fled the violence in Chhattisgarh continue to be hounded by Naxalites, the Salwa Judum and local authorities in Andhra Pradesh. Many displaced Adivasis are settling in reserved forest areas. The authorities, saying that these settlements are illegal, repeatedly burn down the new homes of hundreds of displaced persons and forcibly evict them from forest lands. According to Human Rights Watch, Andhra Pradesh Forest Department officials have on occasion forced the displaced into trucks and dropped them close to the Chhattisgarh state boundary.578

Dr. Hanif described the daily struggles Adivasis face and the repeated destruction of their new homes and livelihoods:

“This is the Adivasis’ plight: They are here in Andhra Pradesh. The police, the forest rangers and the Chhattisgarh Salwa Judum…come frequently and assault these poor people and burn down the small forest huts they live in. Clothes we managed to give them were burnt in the fire. The little money they earn by doing hard labour was also burned in the fire”.579

Madhvi Joga is from Dantewada district in Chhattisgarh. After the Salwa Judum attacked her village, she fled to the forests of Andhra Pradesh:

“The Salwa Judum attacked my village and completely burned it, killed all the cattle and destroyed all my tools. While going back, the Salwa Judum and the police stole all our possessions and money. The police killed six of the villagers. The Salwa Judum shoots anyone they see. After our villages were destroyed, we hid in the bushes and made our way to Andhra Pradesh. We live in the forest, and we do get a little help from different NGOs. Sitara, an NGO, has set up a school deep inside the forest for our children. The NGO Sitara also provides them

577 Full deposition of Dr. Hanif available at page 382578 ‘India: Stop evicting displaced people: Government should ensure Protection and Assistance’, Human Rights Watch,

14 April 2008 Available at: www.hrw.org/english/docs/2008/04/14/india18526.htm579 Full deposition of Dr. Hanif available at page 382


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with some food. In the forest, we do not get a lot of food, which is why our children have swollen abdomens”.580

Dr. Hanif described the extreme dearth of basic health facilities for the internally displaced population:

“Fourteen thousand people have come to Andhra Pradesh from the Kunta subdivision. I have details of all these people. We have only one ambulance for these 14,000 people, who are living in an area of 300 square kilometres”.581

There are also serious challenges in providing basic education and health care to the displaced children:

“We have started 13 schools especially for these children from Chhattisgarh. However, these schools are in the middle of the forest, where there is no water. The children have to walk ten to twelve kilometers to school and back every day. They are desperate for water to drink. They cannot take a bath, so everyone has a skin disease. The conditions are very bad”.582

The provision of adequate nutrition is yet another challenge caused by the humanitarian disaster, precipitated by the advent of the Salwa Judum:

“There is also a big problem of food. There is very little food to offer the children. They complain that they are unable to sleep at night. For four to five days in a row, they drink only water and sleep. However, now things are changing. Action Aid [an international aid agency] has been supporting us, and now the children are sleeping well. It is still a problem to meet the need for one square meal a day”.583

Increased militarisation

The State Government’s approach to the humanitarian disaster has been to increase militarisation in the region. This is in keeping with the Central Government’s approach in tackling Naxalite activity elsewhere in the country.584 The southern regions of Chhattisgarh are the most heavily militarised, with the deployment of the National Security Guard Commandos, Indian Reserve Battalion (Nagaland Regiment), Central Industrial Security Forces and Central Reserve Police Force, in addition to the State Police. On 1 March 2006, Union Home Minister Shivraj Patil confirmed that the Central Government had already provided 26 battalions (26,000 personnel) of security forces to Chhattisgarh to deal with the Naxals:

“The DGP of Chhattisgarh tells us that there are now 12 battalions of CRPF and IRP in Chhattisgarh, and they want to make it 70. So, here you see [the] Chhattisgarh situation. Our friends from Nagaland and Kashmir are here [at the Tribunal]; they have experienced decades

580 Full testimony of Madhvi Joga available at page 364581 Full deposition of Dr. Hanif available at page 382582 Full deposition of Dr. Hanif available at page 382583 Full deposition of Dr. Hanif available at page 382584 In tackling the Naxalite problem the Ministry of Home Affairs’ emphasis is on the modernisation of the State police

including the latest weaponry and communication equipment, fortification and security of police stations in Naxalite areas, provision of mine-protected vehicles and the deployment of more troops in the affected regions. Supra, footnote 550

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of [the] process of militarisation and know what it means. We in Chhattisgarh are poised on that level… Now the area is under occupation, and people are actually resisting the occupation”.585

Lawlessness

The violent tactics that the Salwa Judum and Naxalites employ, combined with the introduction of repressive legislation to govern the region and the failure of the police force and judicial authorities to address the atrocities, has led to a total breakdown of law and order in the state. The testimonies given by victims and witnesses of human rights violations in Chhattisgarh highlighted the complicity of the police force in the activities of the Salwa Judum by failing to record incidents of rape, looting and murder perpetrated against villagers. The police are further responsible for acts of rape and torture against alleged Naxalites. They act with impunity, safe in the knowledge that they will not be held individually responsible for their crimes.

This further breakdown in law and order legitimises the way in which the Salwa Judum has been able to carry out its reign of terror, acting with impunity in furtherance of the aims of the State Government in clearing vast tracts of land (including a number of villages) to make way for large industrial projects.

There are some signs, however, that the Supreme Court is taking notice of the situation in Chhattisgarh after a number of activists and academics filed public interest litigation on the matter. Sudha Bharadwaj highlighted some of the atrocities committed by the Salwa Judum that are contained in the petitions:

“In the case of Salwa Judum, there are two petitions lying in the Supreme Court. Those petitions in the Supreme Court lay out 538 unaccounted deaths [murders that are not accounted for anymore, i.e., there are no FIRs lodged against them] and about 95 rape cases. These are given with names of persons and their villages and locations; 3,000 houses that have been burnt down, so many villages affected, etc".586

She noted the lack of response to the petitions by the State Government of Chhattisgarh:

“The Chhattisgarh government, after months of these petitions filed in the Supreme Court, have not yet bothered to reply to these petitions”.587

On 15 April 2008, however, the Supreme Court ordered the National Human Rights Commission to appoint a committee to look into human rights violations by Salwa Judum activists in Chhattisgarh and to submit a report within eight weeks of the order. It remains to be seen what action the Supreme Court will take when it receives the report of the NHRC. What is clear from the testimonies is that the human rights violations in Chhattisgarh committed by the Salwa Judum and Naxalites have reached nightmarish proportions. As victims of violence from both sides, the tribal people of Chhattisgarh have become expendable casualties in the Government’s commitment to large-scale industrial development.

585 Full deposition of Sudha Bharadwaj available at page 263586 Full deposition of Sudha Bharadwaj available at page 263587 Full deposition of Sudha Bharadwaj available at page 263


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Violence related to economic development: Jharkhand

The State of Jharkhand came into existence in November 2000 when the State of Bihar was divided. Jharkhand is mineral-rich, with approximately 35,000 to 60,000 million tonnes of coal reserves, and is home to 40 per cent of India’s mineral resources. As a fossil fuel that accounts for 63 per cent of India’s energy needs, the mining of coal in India is rapidly developing into a strategically important, highly lucrative cornerstone of the Indian economy.

Adivasis and Dalits comprise 40 per cent of Jharkhand’s population, and over half of the state’s land is designated as tribal land, protected under the Fifth Schedule of the Constitution. Nonetheless, the Central Government is empowered to acquire tribal land for mining and power projects under the Land Acquisition Act, the Coal Mines (Acquisition & Development) Act and the Atomic Energy Act. Since Independence, hundreds of thousands of tribal people have been uprooted from their traditional homes under the powers set out in the Acts for the purpose of setting up industries, mines, large dams, animal sanctuaries and highways in the name of national development.588 Rehabilitation schemes have been limited, and those that do exist are rarely implemented. Studies by organisations such as the PUCL state that over 7.4 million tribal people in Jharkhand have been displaced from their homes due to private- and public-sector projects initiated between 1950 and 1990. Of these people, only 1.8 million persons were re-housed.589 The consequences of industrial and commercial activity in Jharkhand have left the Adivasi population understandably wary of further economic development initiatives.

Despite this disturbing history of the State’s treatment of the Adivasi population, the Government of Jharkhand continues to pursue an aggressive economic development policy. After the formation of Jharkhand seven years ago, the new government has signed over 42 memoranda of understanding (MoUs) with prominent investors, including Mittal Steel, Tata Steel, Jindal Steel and several power companies. The cumulative worth of the projects is 17,000 crore rupees; it is estimated that approximately 48,000 acres of land are required for the projects.590

Much of the land earmarked for these projects is occupied by Adivasis whose livelihood depend on subsistence farming. Many live below the poverty line. Under the land they occupy lie vast reserves of highly profitable and untapped minerals that a number of investors – such as Essar Power Limited, Jindal South West Energy, Aditya Birla Power Company, Adhunik Thermal Energy Ltd and the Abhijeet Group – wish to exploit for large profits. Given historical exploitation of the Adivasi population and their consequent distrust of economic development schemes, it is unsurprising that Jharkhand is the site of strong Naxalite activity. Naxalites, with a presence in approximately 18 of the state’s 22 districts, draw their support largely on the basis of historical feelings of disillusionment, exploitation by the authorities and the population’s desire to protect their homes and livelihoods.

588 ‘Jharkhand Adivasi and Moolvasi on a warpath’ by Stan Swamy, PUCL Bulletin, January 2004. Available at: http://www.pucl.org/Topics/Dalit-tribal/2004/adivasi-jharkhand.htm

589 Supra, footnote 549 590 Supra, footnote 549

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Despite some support for the Naxalites, as in Chhattisgarh, the majority of the Adivasipopulation in Jharkhand is caught between the Naxals, who claim that they are waging a war on their behalf, and the State, which insists that it is trying to protect the Adivasis from the physical threat presented by the Naxals. Displacement is occurring on a large scale and with devastating consequences for the affected communities. In keeping with its emphasis on increased militarisation to contain the Naxal threat, five battalions of central paramilitary forces have been operating in Jharkhand in recent years, and the Government is deploying five more to the state in an attempt to control Naxalite activity.

Shashi Bhushan Pathak described how she believes the police and State Government are using force to push through land acquisition:

"I am here to talk about the human rights violations in the State of Jharkhand. The dismal state of human rights due to…continuous violations in the state as a result of the policies of the State Government, framed with assistance from the Centre, have betrayed the common people of Jharkhand. Secondly, the common persons in Jharkhand are being cheated on a personal level by the State Government. A huge question regarding displacement of people has arisen before us”.591

The Abhijeet Group is attempting to set up a coal-mining project in Chitarpur in the Latehar district of Jharkhand. Latehar is a heavily forested rural district with an abundance of natural resources. It is also home to thousands of Adivasis. Shashi Bhushan Pathak described the methods used to acquire land from local farmers:

“In many areas of Jharkhand energy and steel plants are being constructed. We are all aware that Jharkhand is rich in minerals and forest resources. To extract minerals and forest resources, multi-nationals, the bourgeoisie class and the Government are continuously oppressing the people there. In the Latehar districts, the Abhijeet Group is planning to build energy plants and has already started preparing for it. For this purpose, there is a village in Latehar called Hempur, adjoining which is Chitarpur; the lands of the farmers in that region have been acquired for 500 rupees per acre. In the initial stages, the criminals and important people of that area have been given lands at a higher price, but later they collaborated with the Government, and now all these elements have joined forces and are harassing the farmers of that area. From some people land has been purchased for about 500 rupees per acre. If these people speak out or protest, they are being cheated and are harassed by initiating false cases against them”.592

Again we see a pattern of the State Government and the police using tactics of repression and terror to force through economic development projects at all costs.

“There is…a terrorist organisation, an armed outfit, which has rumored to have split from the Maoists, known as the Tritiya Prastuti Samiti, and there is another known as the Jharkhand Liberation Tigers. Both of these organisations assist the Government in acquiring land for the companies”.593

591 Full deposition of Shashi Bhushan Pathak available at page 288592 Full deposition of Shashi Bhushan Pathak available at page 288593 Full deposition of Shashi Bhushan Pathak available at page 288


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Another similarity between the situation in Chhattisgarh and Jharkhand is the way in which opponents to displacement are labeled Naxalites and Maoists in attempts to justify their arrest and detention:

“Apart from this, in some places where the people are waging a war against displacement by starting movements, the Government in order to crush these movements is openly declaring that the movements in these areas are Maoist-engineered insurrections, and by dubbing the agitators Naxalites/ Maoists, they are arresting these people and locking them in jails”.594

The common features of the current situations in Jharkhand and Chhattisgarh are the use of armed militias to clear swathes of land for industrial development, the targeting of protestors and the freedom that the police and armed forces enjoy to act with impunity. Unfortunately, this methodology is not restricted to these two states, but is evident across the country. The third example of violence related to economic development is that of Andhra Pradesh.

Violence related to economic development: Andhra Pradesh

The State Government of Andhra Pradesh, like those of Chhattisgarh and Jharkhand, is undertaking a rigorous economic development programme. The State Government has approved over 60 parcels of land for the development of SEZs in a range of industries, including pharmaceuticals, textiles, bio-technology and manufacturing.595 Much of the land ear-marked for economic development is populated by poor communities who are being displaced by the State Government in pursuance of its MoUs with large corporations.

In one area of the state, in which the districts of Vishakhapatnam and East Godavari are located, an area of 150,000 acres has been identified for investment in various infrastructure projects. The land is home to thousands of Adivasis and fishermen, whose livelihoods depend on the land and its proximity to the sea. In protest to the impending displacement of the local population, a people’s movement has convened to protest and resist forced evictions:

Rama Rao Dora, a convenor of Adivasi Mukti Sangathan (an organisation that works for the rights of tribal groups) from Andhra Pradesh, explained at the Tribunal that:

“the district of Vishakhapatnam is rich in minerals, and the Government is planning to establish a Special Economic Zone (SEZ) there. It is also constructing the Kolavaram Bridge. The People’s Movement is gathering to resist this with support from the tribes. The Government, for its part, is trying to stop the actions of the People’s Movement and is asking the tribes not to take part".596

He described the harassment and threats that Adivasis have received from the police after protesting their treatment by State authorities:

“Even while we have been protesting, the police have been going to the villages and threatening the tribes, telling them not to participate in the movement. They say ten to 20 police will come

594 Full deposition of Shashi Bhushan Pathak available at page 288595 ‘Status of SEZs in Andhra Pradesh’. Available at: www.apind.gov.in/sezs.pdf 596 Full deposition of Rama Rao Dora available at page 349

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and rape women [if the tribes continue to take part], and no one will be able to stop them”.597

This is no empty threat. The Greyhound Unit is a State-sponsored militia, similar to the Salwa Judum, set up as a counter-Naxalite force. In addition to hunting Naxalites, the Greyhound Unit terrorises the local population, particularly those villages earmarked for economic development projects. Rama Rao Dora described one particular incident of violence perpetrated by the State-sponsored force against the Adivasi population:

“On 20 August 2007 at 5 a.m., in the village of the Vakapalli tribe, which is in the district of Vishakapatnam in Andhra Pradesh, 20 police from the Greyhound Unit came to the village ostensibly looking for Naxalites. They went to the tribes’ hamlets while the males were absent, and eleven tribal women were raped. When the women complained, the Deputy General of Police immediately defended the rapes in the press and accused the women of being Maoists”.598

This is just one brutal incident among thousands committed against Adivasis and the local population whose land is coveted by the Government for economic development projects. The use of the Greyhound Unit demonstrates the State and Central Governments’ complicity in the violence meted out against the poorest sections of society in pursuit of economic development goals. The fourth example of violence committed against Indian citizens in the name of economic development is that of West Bengal.

Violence related to economic development: West Bengal

“In West Bengal… if anybody opposes the policy of the Government, he is marked out as a person who does not want industrialisation, who does not want the state to prosper and does not want any [form of] globalisation”.599

Singur

The State Government of West Bengal is committed to the privatisation of state-run enterprises and the creation of space for industrial development. In 2006, it handed over 1,000 acres of farmland at Singur to Tata for its car manufacturing plant, invoking its powers under the Land Acquisition Act (1894), which allows the Government “to acquire any property for public interest”.600 The West Bengal government faced fierce opposition from the local population. For some, this farmland represented their only source of livelihood. More than 5,000 families were evicted, many by force.601 In order to put a stop to protests and public meetings taking place at the site, the State Government deployed hundreds of guards and police officers to the site’s perimeter fence. The tactics used by the police and security guards to control the

597 Full deposition of Rama Rao Dora available at page 349598 Full deposition of Rama Rao Dora available at page 349599 Full deposition of Justice Malay Sengupta available at page 373600 Land Acquisition Act 1984, section 6601 ‘By Invitation: Business ethics in India – is Tata’s crown slipping?’ Available at: www.ethicalcorp.com/content.

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demonstrators have been increasingly heavy-handed and include the use of force, tear gas and arbitrary arrests.

At the Independent People’s Tribunal, panel member Justice Malay Sengupta explained that people in West Bengal who are opposed to the displacement of communities as a result of economic industrialisation are labeled “anti-national” and “anti-development”. He pointed out that to label them in this way is to misunderstand the character of their opposition:

“You can see that the people who are opposing Tata’s car project are also opposing other projects, such as the one in Nandigram. But they are not opposing industrialisation or globalisation; they are simply saying that Tata should not be favoured with very fertile land. Yesterday Mr. Talwar, and today Mr. Datta, agreed that – even though the land is used for multi-cropping – it is being destroyed for the sake of establishing a car industry. That is very unfair and very unkind”.602

He related an account of police brutality against a woman who dared to stand up against the Tata project:

“Mahashweta Devi, Nana Patekar and I were holding a protest in Singur. We discovered that the body of a girl, Tapushree Mundu, had been deposited near there. We were told that she was the girl who had organised a crowd of women carrying broomsticks who drove away the police. The police were very angry with her, and one day she was found burned alive in a field that had been identified as the place for the Tata project. According to the police, she went to the field with a hurricane lantern to relieve herself and was burnt to death by the lantern. These are the things that are going on”.603

This extra-judicial killing of a woman on account of her opposition to the Tata project is just one case among thousands in which innocent people are physically wounded or murdered in the name of maintaining public order. There is no political will to prosecute the perpetrators of crimes of torture and extra-judicial killings that arise out of victims’ opposition to economic development. The police are the handmaiden of the Government in ensuring that their economic development projects are pushed through without consideration for the tens of thousands of lives that are affected in the process.

Postscript: Tata pulled out of Singur in October 2008, citing continued agitation to the car plant by opposition groups. Within days, it was announced that the Tata car plant would be relocated to Gujarat amid claims of “unbelievable fiscal incentives”604 offered to Tata by the Chief Minister of Gujarat, Narendra Modi.

602 Full deposition of Justice Malay Sengupta available at page 373603 Full deposition of Justice Malay Sengupta available at page 373. In February 2008 in Dinhata, West Bengal police

opened fire without warning on a crowd of 10-12,000 people who had gathered to participate in an All-India Forward Bloc (AIFB) (a multi-party alliance) to protest against land seizures to facilitate Special Economic Zones (SEZs). The police shot at the demonstrators and killed 5 Forward Bloc activists with gunshot wounds to their heads, necks, bodies and backs.

604 ‘Nano leaves Singur for Gujarat’ by Murali Gopalan DNA, 3 October 2008. Available at: www.dnaindia.com/report.asp?newsid=1195304

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Dinhata

On 5 February 2008, at a demonstration over unemployment and the creation of SEZs on farmland organised by the All India Forward Bloc – an ally of the ruling Communist-led West Bengal government – the police opened fire on protestors, killing five people. Justice Malay Sengupta described the background to the incident and the way in which the protestors were murdered:

“Another problem we are facing is that, although a Communist party is in power in the state in alliance with the Forward Bloc Party and the Revolutionary Socialist Party [India], known as the RSP, they are not raising their voice. Just a few days ago, or a week maybe, the Forward Bloc did raise its voice and protested in Dinhata. This resulted in the killing of five people – all were shot in the head and chest. These are the kind of police atrocities that are taking place and have been going on for a long time”.605

The reaction of the State Government to the incident was illuminating:

“The CPM issued a perfunctory statement following the shootings that failed to express any remorse at the deaths and injuries, let alone take the police to task or pledge a full inquiry into their actions. Rather, it called for ‘peace’ and implored that events in Dinhata not become grist for ‘reactionary forces [that] are trying to disrupt the peaceful atmosphere in West Bengal’”.606

The Government of West Bengal, like other state governments, is committed to maintaining “order” while pursuing its plans for economic development. Those that oppose its policies are labeled reactionary forces and disruptive elements.

Nandigram

Nandigram was declared an SEZ by the State Government of West Bengal in 2006. The following year, the State Government consented to the Salim Group’s request to build a chemical hub at Nandigram. As a result, 10,000 acres (40 km²) of land that housed 29 villages were forcibly acquired by the Government to turn over to developers. Several writers, artists and academicians took a strong position against the Government’s plan to build the chemical plant in Nandigram, which in turn brought significant international attention.

The forcible acquisition of land at Nandigram in West Bengal resulted in a series of clashes between police and security forces and protestors at the site. In March 2007, police opened fire on unarmed civilians and employed brutal tactics, including rape and sexual violence to put down opposition to the development. Anuradha Talwar from Paschim Bengal Khet Mazdoor Samiti discussed recent clashes between the Government and the people over its economic development policies:

“I feel that the significance about Nandigram and the recent events in the area, in Singur as well as the killings of five Forward Bloc workers in Dinhata in police firing, is that it is clear

605 Full deposition of Justice Malay Sengupta available at page 373606 ‘West Bengal’s Left Front government presides over another police massacre’ by Kranti Kumara, 12 February 2008.

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in West Bengal that…the line between the party, the CPI (M), and the administration in West Bengal has been blurred totally. I think Nandigram, as much as Singur, as much as what has happened in Dinhata and what is happening in many places where struggles between people and the Government and the party are taking place, and the kind of repression that is happening over there (show this)”.607

Anuradha Talwar believes that the Government has failed to recognise the needs and desires of its people:

“Nandigram, I think, is the most apparent example of this, but the others are also very clear examples of the fact that we have a party in power that has totally lost touch with the people. They have lost touch with the people and have failed to understand the cause of the resistance of the people to the extent that they do not want to listen [to] what the people have to say. Instead of listening to the people, they are using the police; they are using their own power to suppress us. This is what basically Nandigram stands for”.608

She described a serious incident of violence and repression at Nandigram and noted that the State Government under-reported official casualty figures:

“The CPI(M) cadres and the police were combined in an attack. If I give you the figures, it will also show you the extent to which outside involvement was there. According to the reports submitted by the CBI and the High Court, 37 rounds of firing took place there. But if you look at figures, there is a survey that has been done by our union along with many other people, where 40 per cent of the people are covered. About 2754 households were covered in thirteen mauzas, i.e., 40 per cent of the affected population. There, we found, if I give you the number of bullet injuries, 89 bullet injuries, 37 rubber bullet injuries, and 120 hits with a baton. Twenty-six people with teargas shells right on their bodies. Bomb injuries were two. On atrocities on women: 274 women were physically tortured, 46 had their modesty violated, sexual torture on 70 people, rape on eleven people. Fourteen people died, and four people were missing. Similarly, the court figures were given with 182 people injured, three rapes, 26 missing, and 14 dead. So the figures are much beyond police firing”.609

The State Government is complicit in the terrorisation of the local population:

“We have a history of people, a repeated history from every village, where people are saying that in the morning, they had these armed groups of 50 to 100, 200, 500 people coming in CPI(M) cadres with guns, with bombs. These were not all CPI(M) cadres, but also basically goondas [hooligans, street thugs] armed by the party and brought in. They looted houses; house after house has been looted…we have this huge number of loots, rapes, burning of houses, people going missing”.610

Anuradha Talwar described the aftermath of the carnage at Nandigram and the harassment of those the State Government sees as opponents of its economic development policies. As she

607 Full deposition of Anuradha Talwar available at page 260608 Full deposition of Anuradha Talwar available at page 260609 Full deposition of Anuradha Talwar available at page 260610 Full deposition of Anuradha Talwar available at page 260

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pointed out, the perpetrators of crimes against the population have been granted de factoimpunity by the State Government:

“The wounded people who were picked from hospitals and thrown in jails are still languishing there. Cases have been lodged by the police against another 1500 people. Hence, whoever had raised his voice in the movement, however small his part was in the movement, has a case filed against him. Furthermore, the day before yesterday 280 people applied for bail in Haldia High court. Yesterday, 500 people applied for bail. Anybody suspected of taking part in the movement has a case registered against him or her, but those people who took part in these rapes and executions are walking scot-free. It is the innocent people who are being arrested and harassed, and until now there is no peace or independence prevailing in the area. The police atrocities have not ceased. People are still being threatened and scared. It is a fallacy to say that the situation in Nandigram is normal now”.611

The State Government was forced to abort the planned SEZ at Nandigram as a result of the fierce opposition by villagers and activists who steadfastly refused to give up their farmland. Despite this, tensions are still high, and over 35 villagers have been killed in clashes between locals and Communist workers over the past year.

The violence against Indian citizens described in this section displays the ruthlessness of a government committed to economic development policies regardless of popular opposition, displacement and the loss of livelihood among affected communities. We have chosen examples from a sample of states to illustrate the violence perpetrated by the Indian State in areas slated for economic development. The horrors committed in the name of economic development are not limited to Chhattisgarh, Jharkhand, Andhra Pradesh and West Bengal, but are also a daily reality in Madhya Pradesh, Bihar, Maharashtra, Orissa and Uttar Pradesh.

Immunity legislation protects the police and armed forces from prosecution when they use violence against the local population in areas of economic development. The police can be assured that the State Government will protect them from prosecution under Section 197 of the Code of Criminal Procedure, which only allows for the arrest and prosecution of a police officer with their express authorisation. When police put down peaceful protests and torture and murder opponents to particular plans for economic development, they are furthering the will of the state governments to ensure that steel plants, mines and dams go ahead, irrespective of the peoples’ opposition. This is a stark example of State terrorism. Through the police, armed militias and armed forces, the State terrorises its population: torturing, murdering, displacing and impoverishing tens of thousands of Indian citizens in the name of economic development.

At the Independent People’s Tribunal, panel member and advocate Vrinda Grover made the following observations:

“Now, looking at the testimonies that have been shared so far, I feel that whatever we knew in a vague way before is now becoming clear. It is not that there are two economic Indias in this

611 Full deposition of Anuradha Talwar available at page 260


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country; the gap between the rich and the poor is what we keep talking about and hearing about. But, now we also see that there is a political divide. In other words, there are two nations with two different rights, two different kinds of principles, two different kinds of immunities.

We are trying to see the other India here – the one that is largely ignored by the mainstream media. Thus, the context in which this is happening becomes very important. This point has been made already, but I think we need to keep talking about it, because the context in which the people’s struggles are brutally suppressed is important.

We have to understand that the events which are happening now, and the phenomena that we can see, are also a direct result of the changing nature of the Indian State. Whatever little welfare it had available in the beginning has now completely dried up. The State has come out very clearly with its policies and programmes, which tell us indirectly but forcefully that the State is no longer responsible for the welfare of its people. It is working on behalf of only one part of political India, whereas there is a big chunk of the country where people are crying out, hitting out and getting brutalised.

This is the situation as we see it, and I feel that this divide has to be understood. By looking at, or into, the nature of the State, which has changed a lot, we see the Prime Minister saying that the struggles are a kind of threat to the nation’s security. The question is: Whose nation is he talking about? And for whose sake is he trying to create a kind of security? I think we will have to shape our struggles with these kinds of questions in mind for years to come”.612

Naxalism

“The term ‘Naxalite’ is a spectre which haunts the Indian ruling classes”. – Panel member P. A. Sebastian speaking at the Independent People's Tribunal613

“The problem of Naxalism is the single biggest internal security challenge ever faced by our country” – Prime Minister Manmohan Singh speaking at the Chief Ministers’ meeting on Naxalism, 13 April 2006614

Naxalites have strongly supported struggles by villagers against displacement, the construction of SEZs and large-scale industrial projects.615 In turn, popular support for Naxalism has increased in response to the continued iniquity of government policy towards the Adivasis and lower castes. In its 2005-2006 Annual Report, the Ministry of Home Affairs noted that many of the displaced were joining the Naxalite movement, leading to violent conflict in several states.616

612 Full deposition of Advocate Vrinda Grover available at page 341613 Full deposition of Advocate P A Sebastian available at page 383614 Prime Minister’s speech at the Chief Minister’s meeting on Naxalism, New Delhi, 13 April 2006. Available at: http://

www.pmindia.nic.in/speech/content.asp?id=311 615 This is dealt with in more detail in Chapter 5 616 Supra, footnote 554

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According to the Ministry of Home Affairs, 76 districts in nine states – Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Orissa, Maharashtra, Madhya Pradesh, Uttar Pradesh and West Bengal – are affected by Naxalite violence, with the highest levels of violence occurring in Andhra Pradesh, Chhattisgarh, Bihar, Maharashtra and Orissa.617 The Naxalites have a force of approximately 15,000 cadres spread across 160 districts in these states.618 They operate primarily in the lawless, densely forested areas of India’s interior, with some estimates saying that Naxalites control approximately 10.03 million hectares (about 25 million acres) of forests nationwide.619 The Ministry of Home Affairs recently stated that the states of Chhattisgarh, Jharkhand, Bihar and Orissa accounted for over 80 per cent of the total incidents of Naxal violence during 2007.620

The struggles of the rural poor against unjust economic and social practices have historically been suppressed using violent means by landlords and police in the name of maintaining law and order. The emergence of the Naxal movement was, and continues to be, tackled in the same way: through top-down oppression by the police and state authorities to crush its activities. A Parliamentary Committee recently noted that Naxalite violence has grown over the years in spite of the State’s attempts to forcibly suppress the movement.621 The growth in Naxalite violence may be attributed, at least in part, to the violent methods with which the Indian Government has chosen to combat Naxalism.622

Naxalism as an issue of “law and order”

The Naxal movement is based on struggles for land acquisition, wages and the realisation of constitutional rights. Instead of addressing the socio-economic problems that underpin the movement, the Government has chosen to view it as a problem of law and order and deal with it accordingly: by invoking the use of force by the police and the military against the landless, marginalised and dispossessed.

Between 1967 and 1972, in response to the first incidents of Naxalite violence, the Central Government deployed extra police forces to affected areas, including parts of Andhra Pradesh. Fake encounters, illegal arrests and extra-judicial killing were widely perpetrated by the armed forces. As K. S. Subramanian points out:

“The Andhra government viewed the Naxalite issue as a law and order problem, ignoring the fact that it is essentially an expression of the peoples’ aspiration to a life of dignity and self-respect. This led to physical liquidation of people in so-called ‘encounters’, repression and harassment of people by illegal detention, torture and false cases, suppression of democratic activities, unlawful behaviour towards democratic organisations and encouragement of vigilante groups”.623

617 Supra, footnote 554 618 ‘India: Rural development and the Naxalite threat’, 1 July 2007619 Ibid. 620 Supra, footnote 9, page 21621 Supra, footnote 82 622 Including the use of State-sponsored anti-Naxal militias such as the Salwa Judum in Chhattisgarh623 Supra, footnote 82, page 140


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State governments continue to use these tactics of aggression against alleged Naxalites across the country. Individuals from a number of states gave testimonies at the Independent People’s Tribunal about the atrocities committed against them, their family members and members of their communities in the name of fighting Naxalism. This section sets out the way in which laws have been enacted to legitimise State terrorism and the use of force against citizens since the 1960s, before turning to individual instances described by attendees at the Independent People’s Tribunal.

Legislation

The rise of Naxalism led the Indian Government to respond in the same way as its colonial forbearers had – with repressive legislation giving enormous powers to the state machinery to stamp out dissent. For example, the Madras Suppression of Disturbances Act (1947), enacted to put down pro-Independence activity, was revived by the State Government of Andhra Pradesh in 1967 as the Andhra Pradesh Suppression of Disturbances Act to combat the spread of communism in the state. The Act enabled the State Government to notify tribal areas as “disturbed areas”, giving the police an array of powers, including that of shoot to kill.

This marked the birth of encounter killings of alleged Naxals on an unprecedented scale.624

The legislation also allowed the state to successfully prosecute large numbers of individuals for conspiracy to commit crimes under the Act, despite no evidence of any overt crimes. Three years later, the Andhra Pradesh government passed the Preventive Detention Act (1970), which allowed for the arrest of any individual on suspicion of carrying out any activity that may disturb public order or be contrary to the security of the State. As K. G. Kannabiran, a long-time advocate and human rights defender from Andhra Pradesh, describes it:

“In response to the Naxalite movement, the State structure underwent a fascist transformation while at the same time maintaining a façade of rule by law. Thus we had the brutal practice of extra-judicial killings of the movement’s activists. The… State also subverted the legal structure by invoking the conspiracy charge to rope in as many people as possible”.625

As Naxalism spread to neighbouring states, state governments enacted their own laws that increased the powers of the police. In so-called disturbed areas, the police and armed forces were given unrestricted powers to arrest and detain those they considered opponents of the State. The Disturbed Areas (Special Courts) Act (1976) allows for an area to be declared disturbed when:

“a state government is satisfied that (i) there was, or (ii) there is, in any area within a state extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may...declare such area to be a disturbed area”.626

624 Encounter killings in Andhra Pradesh are discussed in more detail in Chapter 7 625 Supra, footnote 83 page 47626 Disturbed Areas (Special Courts) Act 1976. For example, Madhya Pradesh was declared a “disturbed area” under the

Terrorist and Disruptive Activities (Prevention) Act (TADA) in 1985. Punjab was declared a “disturbed area” in the 1980s under the Punjab Disturbed Areas Act 1983

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Increased State repression sanctioned by an array of draconian laws has inevitably led to an increase in civil resistance. In turn, this has driven individuals and groups to more extreme measures. A cycle of violence has been created in which Naxalite violence escalates in proportion to the increased repression of communities alleged to support Naxalism.

Increased militarisation

Setting out a strategy for combating Naxalism at a Standing Committee meeting of the Chief Ministers in April 2006, Prime Minister Manmohan Singh stressed a two pronged strategy that, on face value, appeared to be reasonably progressive: effective policing and accelerated socio-economic development programmes to address the Naxalite problem.627 In practice, however, security considerations prevailed at the state level. In 2006, the Central Government provided 37,000 paramilitary personnel to Chhattisgarh and 30 companies of para-military forces to Jharkhand. In early 2006, Naxalite-affected states demanded approximately 100 central paramilitary battalions (with over 100,000 ready-to-fight personnel) to combat roughly 9,000-12,000 Naxalites.628

The Ministry of Home Affairs Status Paper on the Naxal Problem (2006) recognises that:

“Naxalites operate in a vacuum created by inadequacy of administrative and political institutions espouse local demands and take advantage of the prevalent disaffection and injustice among the exploited segments of the population and seek to offer an alternative system of governance which promises emancipation of these segments”.629

However, the emphasis of the state paper is on Naxalite violence and the need for an effective “police response”.630 In tackling the Naxalite problem, the Ministry of Home Affairs emphasises modernisation of the state police, including the latest weaponry and communications equipment, fortification and security of police stations in Naxalite areas, provision of mine-protected vehicles and the deployment of more troops to the regions.

Outsourcing law and order

In several areas of Chhattisgarh, the administration has outsourced law and order to the Salwa Judum, which uses violent and often deadly means to counter Naxalite violence. Similar methods have been employed by the governments of Jharkhand and Andhra Pradesh, where the Greyhound Unit has operated against the Naxalites, with both sides inflicting needless public violence.631 As Professor B. B. Pandey noted at the Independent People’s Tribunal, the State outsources torture disguised as law and order in attempts to suppress dissent:

“Torture is…directly outsourced by creating organisations like the Salwa Judum, whereby [the State] engineers a split between the people and turns them against each other”.632

627 ‘Tackling Naxalism - Centre, States must fight it jointly’, The Tribune, 15 April 2006628 ‘Naxal Conflict in 2006’, Asian Centre for Human Rights, 2007629 Status paper on the Naxal Problem, Internal Security Division, New Delhi: Ministry of Home Affairs, 2006630 Ibid., page 1631 See incident of rape and violence inflicted by the Greyhound Unit described at page 178632 Full deposition of Professor BB Pandey available at page 310


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Escalation of violence

According to the estimates of Asian Centre for Human Rights (ACHR), a total of 749 persons – 285 civilians, 135 security personnel and 329 alleged Naxalites – were killed in the Naxalite conflict in various Naxalite-affected states of India during 2006. The highest number of casualties were reported in Chhattisgarh (363), followed by Andhra Pradesh (135), Jharkhand (95), Maharashtra (60), Bihar (45), Orissa (25), West Bengal (22), Uttar Pradesh (2), Karnataka (1) and Madhya Pradesh (1).633

At least 384 persons were killed in the Naxalite conflict between January and September 2007. These included 129 civilians, 162 security force personnel and 93 alleged Naxalites. The highest numbers of killings have been reported from Chhattisgarh (208), which constitutes 54 per cent of the total killings, followed by Andhra Pradesh (59), Jharkhand (44) and Bihar (28).634

Restrictions

Fighting Naxalism is often a pretext for terrorising communities resisting displacement in areas earmarked for economic development. In turn, Naxalites support peoples’ movements opposing the seizure of their land, which allows state governments to further legitimise the use of violence against communities on the grounds that they support Naxal activity. The boundaries between Naxalite activity and genuine opposition of affected communities to their impending displacement are increasingly blurred. For villagers living in areas of Naxalite and counter-Naxalite activity, ordinary daily life can be a struggle, caught between the Naxalites and the forces of the State.

Viktal Hegde from the People’s Union for Democratic Rights (PUDR) described the atmosphere in one region of central Karnataka with a Naxalite presence:

“The Maladana area almost resembles a warzone. There is a climate of fear, and no one knows or can tell when the police may enter a village or a house and pick up anybody there for questioning”.635

He went on to describe the restrictions on villagers in Naxalite areas that make even everyday activities potentially hazardous:

“The pressure from the police is now so heavy that they have given instruction to the villagers not to cook more than what is needed for their own consumption, because previously they entered people’s kitchens and examined whether people had cooked food for the Naxalites”.636

633 Supra, footnote 629634 ‘The Naxals get lethal: Chhattisgarh continues to be the epicentre of the conflict’ Asian Centre for Human Rights,

Naxal Conflict Monitor (Volume II, Issue III), October 2007. Available at: www.achrweb.org/ncm/NCM-VOL-II-III.htm

635 Full deposition of Viktal Hegde available at page 357.636 Full deposition of Viktal Hegde available at page 357

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He goes on to describe further limitations imposed on the villagers where the police even dictate what clothes the villagers should wear:

“The villagers have been asked to wear their traditional clothes, because Naxalites wear modern trousers and shirts. But sometimes when they go to shop in town, they do wear pants and shirts, and because of that they are considered suspect”.637

Absurdly, there are even restrictions preventing the local population from covering themselves from the rain:

“The Adivasis carry plastic sheets with them, as they live in an area where there is extensive rainfall, but the police do not allow this because Naxalites also cover themselves with plastic when it rains. These are the some of the examples of how the police have imposed restrictions on the villagers and have turned the whole area into a police state”.638

Extortion

The police regularly imprison villagers under the guise of combating Naxalism. They extort money from them before releasing them. Shashi Bhushan Pathak from PUCL Jharkhand described the situation of one village in the Pat district of the state, where the Naxalites are active:

“In one village, out of 200 inhabitants, 54 people are accused of being Maoists, and out of these selected people the police has caught several of them and locked them up in jails and extorted 5,000, 7,000, 12,000 rupees from them and keeps them locked up for more than a month”.639

Rape

Rama Rao Dora’s description of an incident of mass rape of Adivasi women by the Greyhound Unit illustrates the ways in which anti-Naxal forces perpetrate human rights abuses:

“On 20 August 2007 at 5 a.m., in the village of the Vakapalli tribe, which is in the district of Vishakapatnam in Andhra Pradesh, 20 police from the Greyhound Unit came to the village ostensibly looking for Naxalites. They went to the tribes’ hamlets while the males were absent, and eleven tribal women were raped”.640

State authorities take few, if any, steps to punish those who carry out human rights violations in the fight against Naxalism. There is a sense in some quarters that if the victims are Naxalites, the use of force against them is justified. Rama Rao Dora related that:

“When the women complained, the Deputy General of Police immediately defended the rapes in the press and accused the women of being Maoists”. 641

637 Full deposition of Viktal Hegde available at page 357638 Full deposition of Viktal Hegde available at page 357639 Full deposition of Shashi Bhushan Pathak available at page 288640 Full deposition of Rama Rao Dora available at page 349641 Full deposition of Rama Rao Dora available at page 349


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Torture

Torture is routinely used against those suspected of supporting Naxalite activity and to discover the whereabouts of Naxalites in the area. Witness X from Andhra Pradesh was arrested and tortured by the police on account of his sister-in-law’s political affiliations:

“My sister-in-law is affiliated with the Janasakti Party, which is now affiliated with the Maoists. She joined the Janasakti party a long time ago. My sister-in-law’s mother visited my house, and from that day the police have been hunting for me. The head of the Mustafabad police called me and asked me about the whereabouts of my sister-in-law. I told him that I do not know. I went to my field; there, one of the constables came to pick me up and questioned me about the whereabouts of my sister-in-law. I told him that I did not know. He took me to a Jeep where there were four police constables; they put me inside. They took me to Mustafabad police station”.642

On the way to the police station, he was repeatedly asked to disclose the whereabouts of his sister-in-law. When he insisted that he did not know where she was, the police officers ordered him to run away from them (possibly so they could justify killing him in an encounter) and told him that if he did not run, they would kill him. At the police station, Witness X was repeatedly questioned about his sister-in-law and his own political leanings before the police officers tortured him:

“They had started beating me all over the body. They started beating me mercilessly with lathis. Then afterwards, six police constables had come to me and they asked me to sit on the floor… I refused… Then, they caught hold of me and forcefully asked me to sit on the floor, and when I sat on the floor, two constables caught hold of my legs and pulled the legs apart, and two constables were sitting on the side of me with their legs forced and pressing my thighs, and two of the constables were supporting my body with out any movement. Two of the constables were standing on my thighs so that I could not move any part of my body. My body was totally arrested, and they started beating me on my legs and all over the body”.643

He was tortured for four days and lives in fear that he will be arrested by the police and tortured again in the future. It is innocent civilians like Witness X who unwittingly suffer most in heavily militarised areas; tribal people living in the areas of Naxalite and counter-Naxalite activities bear the brunt of the violence from both sides. They are not offered protection from rape, theft, murder and torture by government forces, but are often themselves targeted as Naxalite sympathisers.

Authorities frequently subject alleged Naxalites to inhumane treatment when they are arrested. Shashi Bhushan Pathak related a case that was taken up by PUCL:

“[It was] a case of a declared Maoist, Bhagirath Mahato, whom the Hazaribagh police caught with the assistance of the Central Reserve Police Force. He was subjected to inhuman torture:

642 Full testimony of Witness X available at page 272643 Full testimony of Witness X available at page 272

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A rod was shoved up his anus, and later petrol was pumped up. He was caught on 19 February, and on 22 February, he was admitted to R.M.C.H. Medical College”.644

When the PUCL discovered his whereabouts, they visited him in the hospital and found him in excruciating pain. Despite this, the police did not show any mercy:

“His stomach was being operated upon, and his excreta was being taken out, but still he was handcuffed to a bed post”.645

PUCL filed a complaint with the NHRC but, as he describes, this is often futile due to the limited mandate of the Commission. It is very difficult to attain justice for cases of torture committed by the police:

“The only defect about filing a complaint with the NHRC is it sends its report to the same police station and superintendent against whom the charge is made, and thus the whole effort goes to waste. We have filed a Right to Information application about the matter, but till now we have not had any response”.646

Extra-judicial killing of so-called Maoists

Panel member P. A. Sebastian observed the rationale behind the extra-judicial killing of alleged Maoists:

“The Maoists…represent the aggressed, the poorest of the poor, who are separated from the ruling classes. The ruling classes of India constitute a microscopic minority, yet they call themselves Indian. If you oppose or rebel against them, they call you anti-national and unpatriotic and often open fire on you”.647

His sentiments are echoed by Professor Sreedhar, who notes that:

“As is happening elsewhere in the country, the term ‘Maoist’ or ‘Naxalite’ is like an excuse for the State and the Government to suppress the people”.648

The legal structure and government policies operate to allow the police, State-sponsored militias; military and paramilitary forces to murder those deemed Maoists or Naxalites as enemies of the State. In a number of cases, the murdered are ordinary civilians. By labelling them Maoists, the authorities seeks to legitimise State-sponsored violence as responsive to a terrorist threat. In such a scenario, State agents are provided with immunity from prosecution.

Shashi Bhushan Pathak described the tactics used by the police in Jharkhand to terrorise the local population:

“The people are being labeled Maoists, and atrocities are being committed against them. In

644 Full deposition of Shashi Bhushan Pathak available at page 288645 Full deposition of Shashi Bhushan Pathak available at page 288646 Full deposition of Shashi Bhushan Pathak available at page 288647 Full deposition of P A Sebastian available at page 383648 Full deposition of Professor Sreedhar available at page 365


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Hazaribagh district there is a village called Kolepatal. There is a small railway station near the village ther is a village called Khatal where a person called Lalkoo Mahato used to live, and he ran a shop worth 20,000 rupees. He used to look after the shop at day, and at night he used to go to his home. The police visited his house one night and shot him at around 3 or 4 a.m. They shot him dead on the suspicion that he is a Maoist”.649

The use of encounter killings to eliminate those accused of being Naxalites is examined in more detail in chapter seven.

In areas of economic development and forced displacement, Adivasis and villagers often rise up against the Government. These peoples’ movements are often supported by Naxalites. The Naxal support for such struggles often leads State forces to employ violent tactics to quash the movements. One example of this was in Kudremukh National Park in Karnataka, a Wildlife Protected Area declared a National Park in 1987. The residents of the forests inside the National Park have struggled to retain their homes and land since the final notification of eviction was issued in 2001. A democratic people’s movement has grown out of the resistance to the displacement of nearly 15,000 tribal people living in 36 revenue villages in the protected national park and has been supported by Maoists in the region. Kudremukh is the site of an ongoing battle between the Naxalites and anti-Naxal violence by the police. The State Government has sought to contain the threat by deploying a large number of policemen in the area:

“There are around 3,000 families inside the national park zone, and there are about 1,000 policemen deployed to control them”.650

Through the implementation of laws allowing for the use of force against opponents of the State and legitimised as counter-Naxalite campaigns, the quashing of protest movements often escalates into violent insurgencies by State forces. This is precisely the situation described by Viktal Hegde in his introduction to the testimony of two young boys, Prashant and Adarsh, at the Independent People’s Tribunal:

“I will provide a very brief background to the case. These are two young boys who come from a remote village deep inside the forest of Karnataka, which is declared part of a national park. For nearly ten years now, eviction notices have been issued to the tribal people living there. Two people have committed suicide, and a democratic open struggle called Kuduremuka Rashtreeya Udyan has been started to oppose the evictions. Several years later, the Naxalite movement entered the forest and took up the same issue as the local people. Since then, there have been about 12 “encounters”. The most recent one involved the killing of these boys’ parents. They were not Naxalites; they were just tribals. But all of them were killed, except these two boys”.651

Prashant and Adarsh have been orphaned by the State, and a number of people in their

649 Full deposition of Shashi Bhushan Pathak available at page 288650 Full deposition of Viktal Hegde available at page 357651 Full testimony of Adarsh and Prashant available at page 320

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village were exterminated in the State’s pursuit of Naxalites. Prashant related what happened on that day:

“On 10 July, in the morning, when we were still sleeping, the police knocked at the door. First, they asked for some coffee, and when mother was making it, I heard gun shots. I ran out from the back door and went to my uncle’s house, which is a couple of furlongs away. I heard several gun shots. I stayed at my uncle’s house until the afternoon, when people started gathering, but no one was allowed to go near my home. We heard the news that about five persons had been killed, including an activist and my parents. I did not go back, as I was afraid”.652

The police incursion has caused the villagers to flee. Prashant and Adarsh now live with their uncle:

“Now there is no one left, and my house is abandoned. Our land is now in ruins. Now I stay with my uncle. I am orphaned, with my only my younger brother, Adarsh, who is 11, surviving”.653

Viktal Hegde further described the way in which the police have resorted to killing innocent civilians in police encounters in the forests of Karnataka:

“Since…2002 to 2003 when the Naxalites entered the area and took up the same issue – protesting against the eviction of the farmers from the park – there have been a series of encounters. So far about eight Naxalites have been killed, and yesterday (8 February 2008) we witnessed the killing of four Adivasis who were not Naxalites but innocent people living in that area”.654

He described the unnecessary brutality of the police force operating in the forests:

“On 12 July, the police entered the house of two of the four Adivasis who were killed yesterday. The people inside the house were unarmed. They were the common people of the village who were members of my organisation. As they were unarmed, the police could have easily surrounded and captured them but they shot and killed them, took the bodies outside, and did not allow people to go near the place of the incident”.655

Viktal Hegde sees the situation in Kudremukh National Park as part of a larger national pattern in which tribal people are struggling for their rights and their movements are being forcibly suppressed by State authorities. The chairperson of the Karnataka State Human Rights Commission, Justice S. R. Nayak, has gone so far as to suggest that a situation may arise in the future in which the State may have to provide arms to people residing in Naxal-prone areas in order to protect themselves:656

“We have presented the whole case to the National Human Rights Commission, but unfortunately the chairperson of the Commission at the state level has himself suggested that

652 Full testimony of Adarsh and Prashant available at page 320653 Full testimony of Adarsh and Prashant available at page 320654 Full deposition of Viktal Hegde available at page 357655 Full deposition of Viktal Hegde available at page 357656 ‘KHRC Chief: Arm Tribals in Naxal-affected regions’, Deccan Herald, 25 October 2007. Available at: www.

deccanherald.com/CONTENT/Oct252007/state2007102532231.asp


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a Salwa Judum-kind of struggle is the best solution for this problem”.657

The cycle of violence

The Indian Government’s use of force to suppress the Naxalite movement in the nine affected states has been counter-productive. It has further entrenched feelings of injustice and inequality felt by the rural poor. In turn, it has transformed a fundamentally political movement into one that is itself forced to rely on violence, since there is no democratic space within which the grievances of the movement can be aired. In a report by the Committee of Concerned Citizens of Andhra Pradesh in 2002, the Committee noted that over the past 30 years: “weapons have gained prominence and have pushed politics to the background and, as a result, the basic problems of the people have been obscured”.658 As one commentator notes, the “political handling of the issue rather than suppression by brute force” would be the preferred course of conduct by the authorities.659

By giving powers to the police and military forces in Naxalite-affected areas, state governments have absolved themselves of their responsibility to ensure that the fundamental constitutional rights of their citizens are upheld. Instead, they silently stand by and watch as the police take part in the torture, rape and murder of innocent citizens in the name of law and order, legitimised by legal provisions and political manoeuvrings. As K. Balagopal has noted, the Government’s policy of stressing a top-down, law-and-order approach to combating Naxalism by introducing increasing numbers of police and military forces into the affected areas is “politically juvenile”.660 This knee-jerk response of violence and State repression to stamp out dissent only serves to increase hostilities and compound feelings of injustice. Across the country, tens of thousands of innocent individuals are losing their homes, livelihoods and lives at the hands of State forces.

657 Full deposition of Viktal Hegde available at page 357658 Committee of Concerned Citizens Andhra Pradesh, 2002.659 ‘Chhattisgarh: Physiognomy of Violence’, K Balagopal, Economic and Political Weekly, XLI (22), 2006 page 31. 660 Ibid.

Chapter 6: Communalism

In June 1947, the British set up a Boundary Commission to separate the Muslim-minority from the Hindu-majority: The State of Pakistan was created less than a month later. The Partition of India following Independence in 1947 to create a separate homeland for India’s Muslims precipitated the exodus of 12 million people, the largest in recorded history. Up to one million people were killed in the riots that followed; millions of others were rendered homeless and traveled across the newly created borders to unfamiliar homes. The new borders were based on a vision of religious identity and formed the basis of a new nationalist zeal. Despite the fact that India has the second highest population of Muslims in the world, they are a minority community. Almost 80 per cent of India’s population is Hindu, and almost 20 per cent is Muslim.

Prior to Independence, Indian politics operated along communal lines to a degree. A political party called the Hindu Mahasabha existed before Independence, and its successor, the Jan Sangh, was supported by a small number of Hindus. Neither party, however, was a serious political contender in the way in which the Bharatiya Janata Party (BJP) is today.661 Amartya Sen captures the changing political reality:

“In the early years after Independence, the broad and inclusive concept of an Indian identity which had emerged during the long struggle for freedom commanded sweeping allegiance…(but) this spacious and absorptive idea of Indianness…has been severely challenged over recent decades”.662

The Sikh Massacres (1984)

In October 1984, following the assassination of the then Prime Minister Indira Gandhi, over 4,000 Sikhs were brutally massacred by Hindu mobs in Delhi and other parts of the country. The mobs were led and instigated by prominent figures of the Congress Party. Thousands of Sikhs died during the four day pogrom, which represents one of the darkest chapters in post-independent India. Voter lists used to indentify Sikh homes found their way into the hands of the mobs. The police looked on as Sikhs were dragged out of their homes and set on fire, their property and business destroyed. Many reported the systematic gang rape of Sikh women. Even Sikh army personnel were pulled out of trains and killed. The role of police ranged from indifference to active participation, seen to be encouraging the mobs on motorcycles, even when the violence had appeared to subside. Prominent Sikh Indian writer and columnist, Kushwant Singh describes taking refuge in the Swedish embassy "I was like a refugee in my own country. Like a Jew in Nazi Germany," in his deposition before the Nanavati commission.

661 The Bharatiya Janata Party (BJP), the political party which represents the Hindutva movement in Parliament was in office in Delhi between 1998 and 2004

662 The Argumentative India by Amartya Sen, London: Penguin 2005

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Relief and assistance to the victims was limited. A coordinated response by civil liberties organisations including Nagarik Ekta Manch, a citizens group that was set up spontaneously in response to the carnage, PUDR and PUCL conducted their fact finding missions to the scenes of violence and later commissioned a report titled “Who are the Guilty?” They found that the carnage was the "outcome of a well-organized plan marked by acts of both deliberate commission and omission by important politicians of the Congress (I) at the top and by authorities in the Administration".

Justice: Delayed and denied

Almost 25 years on, the victims of the Sikh massacres are still seeking justice, whilst the perpetrators have gone unpunished. This demonstrates a persistent denial on the part of the State to adequately investigate and bring action again those responsible.

Since 1984 there have been a staggering number of government commissions of enquiry into the Sikh pogroms; the Misra Commission (1985), the Jain-Banerjee Commission (1987), the Kapur-Mittal Committee (1987) and the Ahooja Committee. In 1990, Kapur and Mittal delivered separate reports. Yet another commission was appointed in 1990: the Poti-Rosha Committee. In 1993 21 affidavits were filed against Congress leaders H.K.L Bhagat and Sajjan Kumar for their part in aiding the massacres. Later the Jain-Aggarwal committee submitted a comprehensive account of how the police deliberately hampered cases every stage from registration, investigation and prosecution and recommended action against several police officers.

In 1994, the Delhi Government appointed a further Advisory Committee under Justice R.S. Naroola to review the status of the recommendations in the Poti-Rosha committee, Jain-Aggarwal committee and Kapur-Mittal committee. Again, the Advisory Committee makes a particular reference to the failure of the police to bring the cases recommended against Congress leaders H.K.L. Bhagat and Sajjan Kumar. By 1995 no cases had been initiated. The Delhi chief minister asks the Central Government to initiate police action on 21 affidavits against Congress leaders H.K.L. Bhagat and Sajjan Kumar on the basis of the Advisory Committee’s report. The Government again failed to act.

In 2000 another judicial inquiry into the 1984 carnage was constituted under Justice Nanavati. The justification offered for it was the failure to punish the guilty. Despite the lapse of over 20 years, the Nanavati Commission received hundreds of fresh affidavits from victims. Some nine years on from the constitution of this committee, not a single senior congress leader has been convicted of the anti-Sikh massacres – this is a stark example of justice being delayed and persistently denied.

The Sikh massacres have often been portrayed as an isolated occurrence or a “spontaneous” outpouring of grief after the assassination of Indira Gandhi. The massacres which followed in Mumbai, Gujarat and Orissa have proved this horribly wrong. The events of 1984 demonstrate how systematic State-sponsored communal violence has been used by all the major political outfits in India.


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The remarkable similarity in the testimonies from victims affected by other incidents of communal violence shows disturbing and sinister parallels; a nexus between politicians, rioters and the police, resulting in a deliberate failure to take preventative action and the perpetual denial of justice to the victims in its aftermath.

The Mumbai riots (1992-93)The State of Maharashthra has long been a site of communal tension. Hindu-Muslim riots broke out in Mumbai on 6 December 1992 following the demolition of the Babri Masjid, a sixteenth-century mosque in Gujarat, by large numbers of Hindu zealots. The Hindu groups that destroyed the mosque, including the RSS663 and its allies, claimed that it had been built on the site of Lord Ram’s birth and was therefore a sacred Hindu place. The communal violence that followed the destruction of the Babri Masjid was terrifying. In the words of the judge who investigated them, these riots were:

“unprecedented in magnitude and ferocity, as though the forces of Satan were let loose, destroying all human values and civilised behaviour”.664

Over the next months, approximately 1,700 people were killed and 5,500 were injured (mostly Muslims) in the violence.665

Police complicity in the violence

As one commentator notes, the riots in Mumbai were marked by police complicity:

“It became less a case of Hindu-Muslim conflict than Muslims against the police or vice-versa. Of 202 casualties – the official toll – 132 died in police firing and 51 in mob violence, of which 98 and 32, respectively, were Muslim”.666

Farooq Mapkar, a Muslim living in Mumbai, witnessed a number of extra-judicial killings committed by the police during the attacks on the Muslim population that followed the demolition of the Babri Masjid in 1992. He described the horror of communal violence committed by armed police during the riots in Mumbai. The police targeted Muslim areas, including mosques:

“I had a devastating experience [during] the riots that took place after the Babri Masjid demolition [in 1992], when the country was burning with communal violence. On 10 January 1993, soon after I went to the mosque for my daily prayer, a police inspector named Nikhil Kapse and his team entered the building. They killed six of the people who were present. After watching all this, I, along with other people in the mosque, rushed to the inner section and closed the door while Inspector Nikhil Kapse was still firing. I was shot in my back, but I decided to stay inside the mosque”.667

663 "Organisation of National Volunteers", a Hindu Nationalist group664 Husband of a fanatic by Amitava Kumar, New Delhi: Penguin 2004 at page 75. 665 Ibid., page 253666 The Hindu Nationalist Movement in India by Christophe Jaffrelot, New York: Columbia University Press, 1996,

page 64667 Full testimony of Farooq Mapkar available at page 344

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He described an incident in which one police officer tried to stop the mindless violence to no avail:

“After some time, a Central Reserve Police Force (CRPF) officer came to the mosque and asked Nikhil Kapse why he had fired so many rounds and tried to stop him. But the inspector kept abusing me and the other people present there. When the CRPF officer asked us, we came out, but one of us had been shot in the leg. The inspector killed the wounded man on the spot”.668

Farooq Mapkar and his companions’ suffering did not end there. On the way to the police station, a mob beat the captive Muslims, and the police did not intervene:

“We were then taken to R. A. Gidvaya Marg Police Station, where a mob had congregated, and even they started beating us. The police watched the agony we went through in silence”.669

In fact, the police further harassed the Muslims they found in the mosque:

“To add to our pain, the police took action against us, arresting around a hundred people from the mosque. Some eight to nine cases were filed against me, which have not yet been decided in court”.670

He described the entrenched communal bias of the police in bringing cases against Muslims for alleged crimes committed during the riots:

“A new case was filed against me, and new witnesses have been presented before the court. Around 100 people have already been accused, but until now not even a single Hindu has been convicted for any offence related to those riots”.671

No political will to prosecute the perpetrators of the violence

Like the other victims and witnesses present at the Independent People’s Tribunal, Farooq has found that justice is hard to attain in instances of extra-judicial killing by the police. Following the 1992-1993 riots, a High Court judge, Justice B. N. Srikrishna, was appointed by the State Government to investigate the atrocities committed during the riots. The Srikrishna Commission submitted its report in 1998. The report revealed that 900 people had been killed during the violence, the majority of whom were Muslims. The Commission also named 31 police officers against whom it found substantial evidence proving their participation in the communal violence and recommended their prosecution. Despite the findings of the Commission, the State Government has not taken action against those accused of acts of communal violence. Farooq Mapkar describes his disgust with the way in which the State Government failed to act:

“I believe that the Congress government is supporting the police inspector; they have already received the findings of the Srikrishna Commission, but until now nothing has been done to

668 Full testimony of Farooq Mapkar available at page 344669 Full testimony of Farooq Mapkar available at page 344670 Full testimony of Farooq Mapkar available at page 344671 Full testimony of Farooq Mapkar available at page 344


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implement its findings. I strongly believe that reports like these should be implemented for our well-being, instead of just forming these Commissions to fool us (the Muslims) [in order] to gain our votes”.672

In Farooq Mapkar’s view, the State Government is trying to appease its citizens by setting up the Commission but has no intention of following its recommendations, preferring instead to ignore the problem:

“I feel the Congress is just trying to fool people of all religions by creating commissions and throwing the reports in the garbage instead of implementing their recommendations”.673

Gujarat genocide (2002)

The State of Gujarat shares a border with Pakistan. At Partition, Gujarat was flooded with refugees from across the new border. The traumatic experience of Partition, combined with clashes between Hindu and Muslim communities in the 1940s, 1950s, 1960s and 1970s, are major factors contributing to Gujarat’s communal identity.674 The sustained experience of communal violence in the state led to Hindu and Muslim communities living in increasing segregation. Through the 1980s and 1990s, the Hindu right became progressively more powerful. The State Government of Gujarat is led by the far-right Hindu politician, Chief Minister Narendra Modi. Minority communities have little or no political voice and are increasingly marginalised. Muslims in Gujarat are depicted by the State authorities as “anti-national”, “anti-Hindu” and “terrorists” and are subjected to the brutal excesses of majoritarian democracy, despite the egalitarian promise of the Indian Constitution.675

The 2002 riots in Gujarat began after the burning of a train carriage in Godhra that was full of Hindu religious workers returning from Ayodhya. Fifty-eight people died in the fire. Attacks on Muslims in different parts of Gujarat started almost simultaneously in more than 150 towns and 1,000 villages. The groups that carried out the attacks were well-organised and disciplined and carried out their killing spree with methodical accuracy.

Brutal violence was inflicted on Muslim men, women and children. Aided by the police, mobs of citizens surrounded and murdered innocent citizens. Mobs had computer print-outs listing Muslim houses and businesses that were then targeted and destroyed along with their inhabitants. Muslims fled their homes and schools. 2,000 people were killed and their houses and shops demolished.

672 Full testimony of Farooq Mapkar available at page 344673 Full testimony of Farooq Mapkar available at page 344674 ‘India: Gujarat riots - communalisation of state and civic society’ by Professor Jayanti Patel. Available at: www.

mukto-mona.com/human_rights/gujarat/gujrat_riot_patel.htm 675 Following Ronald Dworkin’s distinction: a majoritarian democracy is one in which the majority view of how society

should be run governs. This is in contrast to an egalitarian democracy in which the fundamental rights of each citizen must be upheld to avoid the ‘tyranny of the majority’. The rise of Nazi Germany and the events of the Second World War, for example, showed that democracy could no longer guarantee the protection of the rights of individuals from state persecution. Hitler was politically popular and democratically elected. It became clear that in order to protect against majority tyranny governments must undertake to afford certain rights and protections to its citizens. The Indian Constitution upholds the individual, fundamental rights of each citizen irrespective of religion

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In legal terms, genocide refers to any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.676

These terms accurately describe the nature of the killings in Gujarat at this time. There was a complete breakdown in protection offered by the State. In fact, it was the State that actively encouraged and armed its citizens to destroy their Muslim counterparts. According to Human Rights Watch:

“What happened was not a spontaneous uprising; it was a carefully orchestrated attack against Muslims… The attacks were planned in advance and organised with extensive participation of the police and State Government officials”.677

The police participated knowing that they were following the wishes of the State Government and would be immune from prosecution for the atrocities they committed.

Police participation

“Friends, all of you are aware of the events that unfolded in 2002 in Gujarat and how people from one community destroyed people from another. You must know how women were raped and their households were looted, and that the police and the Government had a major hand in the whole affair. Instead of justice, the wrongdoers have not been punished; instead, they are walking free”.678

Despite repeated pleas from the Muslim community to protect them from the mobs, the police did not help the victims. In many cases, they actively participated in the violence against Muslims. The failure of the police to defend the Muslim minority from the violent excesses of the raging Hindu mobs and their active participation in the genocide is one of the most chilling and revealing aspects of the 2002 riots.

The son of Bibi Khatun from Godhra, Nasir Khan, was arrested by the police hours after the riots began. She described how he was badly beaten despite her protests. She was also

676 The international definition of genocide is, set out in Article 2 of the 1947 Genocide Convention as: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group”.

677 ‘We Have No Orders To Save You’, Human Rights Watch, April 2002, Volume 14, No. 3, page 25678 Full testimony of Mohammed Owesh available at page 299


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threatened:

“My son was beaten up so badly by the police that I have no words to describe it. I said, ‘Sahib, this is my kid, why are you hitting him?’ The policeman said, ‘Shut up, you sister-f*****; don’t make any noise.’ I apologise for uttering this profanity. ‘Shut up, you don’t know anything. This is the style of working of the Government.’ I pleaded with the policeman, folding my hands, and said, ‘Sahib, why are you doing this? Why are you beating this innocent boy? How can you beat him like this?’ Then he said, ‘Shut up, I can beat you, mother, as well. Get the hell out of here’.679

Human Rights Watch’s 2002 report on the Gujarat genocide describes how police shootings at Muslims often set the scene for Hindu mobs to “finish the job”:

“During the first two days of violence, Chief Minister Modi defended the actions of his police stating that they had ‘mowed down people’ to quell the violence. According to the Indian Express, ‘one such incident he was referring to occurred on February 28 and March 1…where 40 were killed in firing. Now, according to a batch of FIRs files last week and post mortem reports, it has come to light that all 40 were Muslims, most of them shot in the head and the chest”.680

Salim Sheikh from Vadodara in Gujarat described a similar incident after he had sought police protection during the riots on 25 March 2002. Instead of saving Salim Sheikh and his companions, the police shot at them:

“We went to the police to complain about the people who were trying to kill us and asked them to protect us. Instead, the policemen threatened us, telling us to return to our houses or they would shoot us. We asked, “Whom could we turn to in that case?” but they did not listen to us. We decided to leave, but as we were going to get our children from our houses, the police started shooting at us, and I was injured”.681

Yusuf Ali, also from Vadodra, described how both his friend and his brother-in-law were fatally wounded by gunshots in the aftermath of the Gujarat riots.

“One day at about 3 p.m., I had ventured out to purchase some vegetables. People started shooting at us. A friend of mine was killed, and my brother-in-law, too, was shot. After six months, my brother-in-law started suffering from kidney failures, as the bullet was still stuck in his foot. He was operated upon, but died the next year”.682

The 2002 pogrom took place with the full approval of Gujarat’s State Government. The State Government has since taken no steps to punish those police officers who took part in the violence. The Narendra Modi-led government has ensured that the police force is immune from prosecution for their atrocities.

679 Full testimony of Bibi Khatun available at page 279680 Supra, footnote 578, page 25681 Full testimony of Salim Sheikh available at page 395 682 Full testimony of Yusuf Ali available at page 367

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Continued persecution of Muslims

Salim Sheikh was shot by police officers during the 2002 violence, but his persecution at the hands of the State did not end there. To his horror, the police filed false cases against him for the crimes of being a member of an unlawful assembly, rioting and rioting with a deadly weapon.

“I was admitted to the S.S.G. Hospital. After 15 days I went back home. The police came to my house and arrested me. I was booked under various sections of the Indian Penal Code, such as numbers 143, 147 and 148. I said to the police: ‘Sirs, the people who are rioting are moving around freely. I am an innocent person. I was going to fetch my daughter, and I was shot at and was not part of the riots, and I have done nothing wrong. Why are you filing a case against me?’

They just told me that a case was going to be filed. I surrendered to this and accepted my fate. I told them I had not done anything, and I was against the rioters, but they did not listen to me. I told the police, “Sirs, please take action against those people who are rioting outside,” but instead they told me that no action would be taken against them, and that if I chose to stay there, then I would have to bear the consequences”.683

Muslims as “terrorists”: the Prevention of Terrorism Act (POTA)

“[The] Prevention of Terrorism Act (POTA) was used. The police arrested 126 innocent children, all of them Muslims. It was said again that all of them were terrorists, and it was necessary for the Government to act so as to stop terrorism from growing in Gujarat”.684

In Gujarat, the State Government and the Hindu right are working hard to depict Muslims as “anti-national”, “outsiders” and “terrorists” whose real allegiances lie with Pakistan. Seeking to further dehumanise the Muslim population, the State Government has invoked the Prevention of Terrorism Act (POTA) to arrest, detain and terrorise the minority community. Describing the Muslim population as terrorists allows the authorities’ treatment of the minority population to be depicted as necessarily responsive to a terrorist threat. In turn, “terrorists” are seen as undeserving of ordinary criminal safeguards, and their arrest and detention under draconian anti-terror legislation is legitimised. This is disingenuous and attempts to veil the State terrorism that is being employed against Muslims in Gujarat today.

POTA was repealed in September 2004 as a result of sustained campaigning by a number of human rights organisations and civil society groups. Nonetheless, the Act was not repealed retrospectively; this means that those arrested or tried under the Act do not benefit from its repeal. During and following the 2002 pogrom in Gujarat, the police arrested hundreds of Muslims under this anti-terrorism law, enabling the police to further persecute the minority community. According to the Islamic Relief Committee of Gujarat, 130 persons remained in custody awaiting trial in Gujarat under POTA.685 Mohammed Owesh described the way in

683 Full testimony of Salim Sheikh available at page 395684 Full testimony of Mukul Sinha available at page 350685 Supra, footnote 258


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which POTA has been invoked to keep his brother in prison:

“Unless the remaining Muslims raise their voices on behalf of those who have been booked under the draconian POTA law, they will be locked away indefinitely. One of them is my brother. He was accused under POTA and has been in prison for five years. Three charges were brought against him: One was the Haren Pandya murder, another was the tiffin bomb case, and the third was for having received Inter-Services Intelligence training. Judgments on two of the cases have been given already: In one he was sentenced to ten years and in the other to 14 years”.686

A number of ordinary safeguards of criminal law are missing in POTA. For example, confessions are admissible as evidence against the accused. This is a dangerous step away from accepted principles of criminal jurisprudence, opening the door to convictions based on confessions, which are invariably obtained by torture. This is the situation described by Mohammed Owesh, whose brother was found guilty for a crime that he was proven not to have committed due to the “confession” he gave in custody:

“Experts were called from Kolkata for the Haren Pandya murder case. They proved that the way the Criminal Bureau of Investigation had portrayed the murder on the charge sheet was wrong. As the CBI had presented it, the car window was two inches open, he was shot from low down, the bullet hit his neck, and he got out of the car. This did not happen. It is impossible to shoot a person from that position. Nor was there any bloodstain found in his car. But the Session Court announced that its decision was based on a confession”.687

He went on to describe the methods that the police used to extract the confession under POTA:

“The way that confession was obtained from the boys was appalling: They were hung upside down and given electric shocks on their genitals. After torturing them, they were asked to sign a blank piece of paper. The boys asked: Why should they sign? What was their crime? They were told just to sign, and that it was the job of the police to write up the crime. When my brother did not sign despite being threatened, they brought his 70 year-old father, who had a bad heart, and told my brother that if he did not sign, then they would torture his father in the same way as he had been tortured. My brother thus felt compelled to sign”.688

As a result of the false confession, Mohammed Owesh’s brother has been in prison for five years.

Habib Karimi’s son, Kalim Ahmed, had three false cases brought against him on 3 April 2003 under the provisions of POTA. He described his detention along with his children and the pressure under which they were put to provide their signatures for confessions fabricated by the police:

686 Full testimony of Mohammed Owesh available at page 299687 Full testimony of Mohammed Owesh available at page 299688 Full testimony of Mohammed Owesh available at page 299

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“That night, I was arrested along with my children and taken to the police ‘crime branch’. The police told us they just needed to take a statement from me, and therefore we had to go with them, and they would release us after four to five hours. After giving the statement, we were kept at the police station for six days. On 9 April, I was told I would be released on the condition that I sign four blank pieces of paper. I told the police that I wouldn’t sign a blank paper and asked them to please fill them in. I said I would read them and would sign them if I found that nothing wrong had been written on them.

The officer asked me whether I wanted to leave or not. If I wished to leave from where I was being held, then I had to sign the blank papers. I asked him how this could be justified. He bluntly told me that I just had to answer ‘Yes’ or ‘No’, and that if I didn’t want to sign the blank papers, then I would have to sit there. For six days I underwent immense mental torture… They just made us sit doing nothing. The policemen used to come in every now and then and ask me about something or other. I was totally frustrated and exhausted. Finally, my children and I signed the four blank pieces of paper”.689

As a result of signing the blank pieces of paper, Habib Karimi’s son has been convicted of two cases under the provisions of POTA:

“My son has been punished in two cases on the basis of the confession he made under the Prevention of Terrorism Act (POTA); Section 32 of POTA states that confessions made to police officers are admissible in a court of law”.690

Bibi Khatun’s three sons were picked up by the police during the 2002 pogrom. She described the horror of not knowing what will happen to them six years after their arrests under POTA:

“Our children should get justice, but until now nobody from Godhra has received justice. So many mothers, sisters, innocent children hoped that they would get justice, but until now we have received no news regarding whether our children will be given bail or set free”.691

It is clear that the draconian provisions of POTA are being used to target and persecute the Muslim population of Gujarat under the guise of fighting terrorism. Laws such as POTA lend legitimisation to acts of State terrorism and shield its actors from prosecution. In the words of Bibi Khatun:

“I think the Muslims of Godhra will never get justice. We do not find justice anywhere we go. And the Prevention of Terrorism Act (POTA) has a role to play in all this”.692

Dargah riots, Gujarat (2006)

On 1 May 2006, communal riots broke out in Gujarat following the destruction of the over 200 year-old Muslim shrine of Chishti Rashiduddin. Victims and witnesses at the Independent People’s Tribunal described the participation of the police in targeting innocent Muslims.

689 Full testimony of Habib Karimi available at page 396690 Full testimony of Habib Karimi available at page 396691 Full testimony of Bibi Khatun available at page 279692 Full testimony of Bibi Khatun available at page 279


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Javed Pathan, a rickshaw driver from Vadodra, described how he was shot by a policeman simply because he is a Muslim:

“The riot was taking place four kilometres from my home. I was standing in front of my house. The police came and told me to go inside. A policeman asked me my name, and when I answered that my name is Javed, he shot me, and now one of my hands is useless. I was kept in hospital for a month, and then I was sent to the jail for 12 days”.693

Yusuf Ali was also shot by a policeman:

“After working through the night, I came back home and fell asleep. My house is one of the first Muslim houses after the Hindus. At about 10 a.m., my wife and kids woke me up and told me that there is something dangerous going on outside. So, I told them to go to my in-laws’ house, which was behind mine. After having personally dropped them, I came back to lock up my house. There was a State Reserve Police personnel outside my house. He asked me my name. After I told him my name he took out his rifle and shot me, and it is only by God’s grace that I am alive. He shot at my chest. I was unconscious and admitted in the Intensive Care Unit for ten days. After three days in another ward they [the police] registered cases of theft against me. After falsely accusing me of crimes I had not committed, they put me in central jail; I was eventually released on bail”.694

Although Yusuf made a police complaint, the charge sheet has not yet been filed.

Javed Pathan described the desperate plight of other Muslims who were attacked by the police and the long-term effects this has had on their lives and livelihoods:

“On the day that I was shot, 18 other people were also targeted. Their condition is so bad that the people who lost their legs on that day are now begging. They used to do hard work, and now they can only beg…in front of the Mosque. Before, they were rickshaw drivers, and I, too, used to pull a rickshaw. But now I cannot do it anymore. I am not doing anything now; I am just working as a labourer. This is the life I am living”.695

Women were not spared violence at the hands of the police during the Dargah riots. As Javed Pathan described:

“During the riots, the police’s behavior was so bad that they did not even leave pregnant women alone. They beat women on their stomachs”.696

Judicial complicity

Mukul Sinha sums up succinctly the reason for which no meaningful steps have been taken to bring the perpetrators of the Gujarat violence to justice:

“What we are seeing, especially in Gujarat, is the utter failure of the judiciary. The judiciary has been completely indifferent to the whole issue… It is because of the failure of the judiciary

693 Full testimony of Javed Pathan available at page 370694 Full testimony of Yusuf Ali available at page 367695 Full testimony of Javed Pathan available at page 370696 Full testimony of Javed Pathan available at page 370

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on one the hand and the failure of the Central Government on the other that there are absolutely no steps being taken against such dreadful killings. They are taking place, and Modi is winning the election on the basis of these very events”.697

Victims and witnesses at the Independent People’s Tribunal repeatedly described the neglect of the judiciary in addressing police atrocities. As we have seen from Farooq Mapkar’s testimony, this holds equally, or even more true in situations of communal violence. The courts are the ultimate arbiters of justice. When they shirk both their duty to uphold the constitutional rights of citizens and their responsibility to hold perpetrators of violence (including the police) responsible, they become yet another oppressive arm of the State.

Shakeel Ahmed, a lawyer from Maharashtra, related his experience of the judiciary protecting police forces from prosecution. He represented Farooq Mapkar, who was shot at and injured by police gunfire, but met serious opposition from the judge to blaming the police for his injuries:

“When I was defending Farooq in the Sessions Court, one witness testified that he [Farooq] was injured by ‘police fire’, but the court omitted the word ‘police’ in the record. When I protested against this, the court did not agree that there had been any omission”.698

Adamant that the court should not absolve the police force of blame, advocate Shakeel Ahmed pressed the issue:

“When I checked the record during the next hearing, the word ‘police’ was missing. I raised the issue again, but the court suppressed my argument by claiming that I did not want to continue with the trial, which was why I was making a disturbance, and threatened to file a complaint against me with the Bar Council. When I again requested that the word ‘police’ be included in the records, the court threatened me and asked me why I was behaving like King Harishchandra [an ancient Hindu king famous for being the ultimate upholder of truth and morality]".699

This incident highlights the appalling consequences for victims of communal violence when the judiciary also becomes complicit in police atrocities.

Mohammad Owesh described the way in which, after his brother had been brutally tortured in police custody and forced to sign a ‘confession’, he felt sure that the judge would help him attain justice; Mohammed related the devastating consequences of this false hope:

“When at last he was taken to court, he finally had some hope that he would get justice. He thought that if he told the truth, then there would be some hope of getting justice”.700

His brother appealed to the judge to exonerate him and described the circumstances of his confession, which was admissible under POTA:

“He said to the judge, ‘Sir, they have made me sign a blank sheet of paper. We have not done this crime. They tortured us for four months and forcefully made us confess to this crime.’

697 Full testimony of Mukul Sinha available at page 350698 Full deposition of Shakeel Ahmed available at page 360699 Full deposition of Shakeel Ahmed available at page 360700 Full testimony of Mohammad Owesh available at page 299


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Upon hearing this, the judge said to the policemen from the ‘crime branch’: ‘How did you prepare them? Go and prepare them properly before bringing them here.’ The policemen took them away and told them that they had warned them not to talk rubbish. They thrashed and tortured them for another eight hours. At that point, the boys lost all hope”.701

This incident again highlights the terrifying consequences for victims of police violence when confronted with members of the judiciary who disregard their fundamental rights.

“Next time when he was produced in court, my brother confessed to the crime, saying to the Justice, ‘We have done whatever crime you say’. And he confessed to all the crimes that were leveled against him”.702

Complicity of the State in anti-Muslim activity

Parties and organisations such as the BJP, RSS and VHP have grown in strength. The perpetrators and instigators of communal violence in the political sphere often emerge as heroes. Bal Thackeray and the Shiv Sena won the elections in Mumbai following their lead of the anti-Muslim pogrom in the early 1990s. The architect of the Gujarat genocide, Chief Minister Narendra Modi, won the State Government elections ten months later with a large majority. It is interesting to note that in the course of his campaign, Modi declared that his true political opponent was Pervez Musharraf, implying that those who did not support him were supporters of Pakistan. This is a clear expression of the “insider/outsider” dichotomy through which Modi depicted Muslims as “anti-national” unless they voted for the architect of their destruction. Following the genocide in Gujarat, the leader of the VHP, Praveen Bhai Togadia, declared that what had happened at Gujarat would be repeated in the rest of the country.

The future of Gujarat

Mukul Sinha describes the current political climate in Gujarat:

“Today, Modi has won for the third time, thanks to his enormous effort to paint minorities as terrorists and by not permitting any form of investigation in any of these matters. If someone tries to say something to him, he creates havoc in the name of Gujarat. I think this tendency in politics has to be fought politically. We cannot hope for much from the judiciary. I think a strong people’s movement is required, which we are trying to create… If what is happening in Gujarat succeeds, then it will be very dangerous for the rest of the country”.703

Mukul Sinha believes that the events of 2002 were just the beginning of the State’s violence against its Muslim minority population:

“The riots that took place in 2002 were only the beginning. The whole issue is part of a central political campaign in which a minority, a class – breeders of terrorists – must be wiped out. This is the image of Gujarat that is systematically put forward since 2002. The first time was when 58 people traveling in two coaches of a train were burnt. Today, we know that this was an accident, yet we are told that the coaches were burned by Lashkar-e-Toiba [LET] terrorists

701 Full testimony of Mohammad Owesh available at page 299702 Full testimony of Mohammad Owesh available at page 299703 Full testimony of Mukul Sinha available at page 350

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and that 58 people died”.704

This theme is dealt with in more detail in chapter seven which examines the use of “encounter killings” against Muslims in the state that are justified as necessary for the elimination of terrorism.

Orissa – Attacks on the Christians (2008)

September 2008 witnessed a number of anti-Christian attacks in Orissa, which spread to 14 of its 30 districts. The violence was sparked by the murder of Swami Lakshmanananda Saraswati, a prominent member of the right-wing Hindu group Vishwa Hindu Parishad (VHP), on 23August. Despite Maoist insurgents publically taking responsibility for the murder of the swami, the killing unleashed a wave of anti-Christian violence across the state. At the time of writing, it is estimated that 10,000 Christians (mostly Dalits and Tribals) have been displaced and are living in sub-standard conditions in makeshift relief camps. Many fear returning home due to ongoing threats and reprisals by the Hindu extremists. Despite the Maoist claim of responsibility rightwing Hindu groups continue to blame and attack Christians.

According to the All India Christian Council (AICC), up to 118 Christians have been murdered with many hundreds of houses and churches including church run hospitals and schools being destroyed and torched in the Kandhamal district of Orissa. Rapes have been committed against a number of Christian women including at least one nun. The wrath of these extremist groups has reportedly been fuelled by misleading claims of forced conversions of Dalit and Adivasipopulations by Christian missionaries.

A recent delegation of lawyers from HRLN found many victims in the makeshift camps were threatened with reprisals and prevented from returning to their villages unless they reverted back to the Hindu fold after a shudhi or “purification” ceremony had been performed.

The indifference and collusion of the police and administration in failing to curb the violence – taking preventative action and prosecuting the perpetrators – has now become the hallmark of communal violence in India. This is the common thread which runs prominently through the anti-Sikh, Mumbai, Gujarat and Orissa pogroms.

704 Full testimony of Mukul Sinha available at page 350

Chapter 7: Encounter Killings: “Terrorists”, “Gangsters” and “Naxalites”

Encounters: A Popular Practice

Encounter killings were first employed in Andhra Pradesh in the 1960s against individuals seen as opposed to the State.705

“The euphemism ‘encounter killings’ has been used since the 1960s to describe extra-judicial killings because of the frequency with which officials claim that the deceased had been killed in an ‘encounter’ with police”.706

In the 1960s and 1970s, custodial and extra-judicial killings of Naxalites became standard police practice and still continue in Naxalite-affected areas today. In counter-insurgency operations in the states of the Northeast, Punjab and Kashmir, fake encounters became routine as a quick way to rid society of “terrorists” and opponents of the State. The manner in which the police and armed forces were granted impunity in Punjab for fake encounters of alleged terrorists during the 1980s and 1990s has led to the emboldening of security forces and administrations around the country to indulge in the illegal elimination of minorities, the disadvantaged, and those accused of criminal activity.

A study conducted by the Asia Pacific Human Rights Network noted that encounter killings were not isolated incidents but occurred throughout India. They are part of a “deliberate and conscious State administrative practice” for which successive Indian governments must bear responsibility.707 Various Indian governments have implicitly sanctioned the use of extra-judicial killings by members of the police forces, army and security personnel as an acceptable alternative to the judicial system.

In addition to combating terrorism and anti-social elements, encounter killings have also been used to rid society of criminals. These encounters are often sanctioned by state governments that find that encounter killings do what the criminal justice system cannot: drive down crime figures. Encounter killings serve as a useful tool for politicians and governments to appear tough on crime. As a result, the police and “encounter specialists” who carry out the killings are rarely prosecuted. The use of encounter killings as a political tool was recently exemplified by the Chief Minister of Gujarat, Narendra Modi, who sensationally declared responsibility for an encounter killing of a Muslim criminal as a means of gathering popular support on his election round.

705 The first recorded fake encounter is said to date back to the repression of the Telangana peasant movement706 'India: Extra-judicial killings under the spotlight', SAHRDC, 23 January 2003. Available at: http://www.hrdc.net/

sahrdc/hrfeatures/HRF71.htm707 As quoted in 'The problem of "encounter deaths" - extra-judicial killings - in India' by K. C. Saleem, 17 June 2007,

Media Monitors Network. Available at: http://usa.mediamonitors.net/content/view/full/44299

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Support for encounters: The media

“The media has played a major role to project Naxalites as anti-nationals and Muslims as terrorists. The Muslims are being targeted in fake encounter killings in the name of terrorism while earlier Dalits and other have-nots were shot down in the name of Naxalites”.708

The media plays an important role in civil society and often reports on abuses carried out by the police, military and the security forces across India. It provides a level of scrutiny and reporting on human rights abuses that is seriously lacking in many government departments and national and state-level human rights commissions. In some quarters, however, there is a tendency to buy into the middle- and upper-class view that State security must prevail over “subversive elements”.

The media have long glamourised encounter killings in the popular imagination by running stories on “encounter specialists” and heralding police officers with record numbers of “hits” as “heroes of the people”. Pradeep Sharma, a police officer who holds the record for the highest number of kills at 107, was even featured in Time magazine.709 The popular Bollywood film Ab Tak Chhappan is based on the life of Daya Nayak, another trigger-happy police officer who claims to have “encountered” 84 people.710 A Google image search for “encounter specialists” even displays numerous pictures of individuals described as “sharp-shooters”, posing proudly for photo shoots with their weapons.

Rewards and promotions

Far from being viewed as criminal activity on the part of the police and the State’s armed forces, the practice of encounter killing is often rewarded with promotions, monetary rewards and awards for the police officer’s bravery. For example, Rajbir Singh, a high-profile “encounter specialist” from Delhi received five President’s gallantry awards every year from 2000 to 2004 for his services to the State.711 In Punjab, Kashmir and the Northeast security forces continue to construct fake encounters to kill suspects and ordinary persons in the hope of receiving rewards and promotions from the State.712

708 This is the view taken by different speakers at the National seminar on fake 'Encounter Killings' organized by National Confederation of Human Rights Organisations, (NCHRO) in July 2007 as reported by Pervez Bari, Milli Gazette, 3 July 2007. Available at: www.milligazette.com/dailyupdate/2007/200707031_India_Custodial_Deaths_Encounter_Killings_muslims_dalits.htm

709 'The ‘dirty harrys’ of Indian police: A profile of the top encounter specialists of the Mumbai and Delhi police' by Sagnik Chowdhury and Neeraj Chauhan, Indian Express, 27 March 2008. Available at: www.indianexpress.com/printerFriendly/288872.html And see ‘Urban Cowboys’ Time magazine 6 January 2003. Available at: http://www.time.com/time/magazine/article/0,9171,404315,00.html

710 Ibid. 711 ‘The Legend Of An Encounter Cop’ by Mihir Srivastava, Special Report, Tehelka magazine, Volume 5, Issue 14, April

12, 2008712 Supra, footnote 399, page 4. In its 1993 'Country Report on Human Rights Practices: India', the US State Department

reported: “In Punjab police continued to engage in extrajudicial killings including faked "encounter" killings. In the typical scenario, police take into custody a suspected militant or militant supporter without filing an arrest report. If the detainee dies during interrogation or is executed, officials deny he was ever in custody and claim he died during an armed encounter with police or security forces. Alternatively, police may claim to have been ambushed by militants while escorting a suspect. Although the detainee invariably dies in “crossfire,” police casualties in these “incidents” are rare”.


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Encounters as a tool of justice

"Our legal system doesn't work at all. If there are no legal remedies, there'll be extra-legal ones". – K. P. S. Gill, Director of Police responsible for combating the insurgency in Punjab in the 1980s and 1990s713

It is disturbing that murders carried out by State forces have the apparent support of the nation’s public and its media. The media creates an impression in the minds of the general public that the people whom encounters are supposed to eliminate are gangsters, terrorists and Naxalites. The reality however is that the practise of encounter killings is widespread throughout India. The police can choose to eliminate anyone on any pretext.

The Independent People’s Tribunal heard from a number of witnesses whose family members – brothers, sons, husbands – had been summarily executed by State actors in fake encounters. None of the murdered individuals were awarded a fair hearing or a trial for their alleged crimes. Many were innocent citizens.

Taking the law into their own hands: the police perspective

A view held by many law enforcement officers and members of the public is that it is acceptable to dispose of certain “disruptive” individuals; those labeled criminals, terrorists and Naxalites, through encounters. This is also the case with ordinary citizens who have found themselves on the wrong side of the law. One example is that given by Resham Bai from Indore, Madhya Pradesh. Her husband killed a police officer in the course of a fight. Her husband had been protecting her from the police officer’s attempts to molest her. Resham Bai described the fatal abuse her husband suffered in custody as a result of his confession:

“On 13 September 2004, a policeman came to my house with a summons order for my husband. I told him that my husband was not at home and I would send him to the station after he came back. Upon hearing this, the policeman started abusing and molesting me and pulled my sari. Meanwhile, my husband arrived, and when he saw the policeman molesting me, he became furious and started a fight. Both men went outside. After some time, my husband returned and told me that in the heat of the moment he had killed the policeman.

My husband then surrendered himself to the police and admitted what he had done. The police took him into custody and subjected him to third-degree torture. Thirteen policemen beat him almost to death. I went to the station and pleaded with the police to have mercy on him. They ordered me to leave, threatening to beat me, too, if I refused. I left the police station helpless and crying, having no clue as to what would happen to my husband and my family.

The police took my husband to a faraway bypass and killed him there in a “fake encounter”. They then fabricated a story that he had snatched a gun from one of the policemen and had started firing at them. They alleged he was killed during the fire-fight that followed”.714

713 As quoted in ‘Urban Cowboys’ by Alex Perry, Time magazine, 6 January 2003. Available at: www.time.com/time/magazine/article/0,9171,404315,00.html

714 Full testimony of Resham Bai available at page 386

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Encounters are carried out in this manner by police across the country. Kamala from Tamil Nadu described a similar situation in which her husband, who had previously been in trouble with the police, was later eliminated in an encounter. The police’s justification for his murder was that he was conspiring to kidnap a former member of the legislative assembly:

“On 31 July, my husband called me and said he would be coming home the next morning, but he never arrived. I tried calling throughout the day on his cell phone, but it was switched off. In the evening, I got a call from Chennai telling me that my husband had been killed in an ‘encounter’. When People’s Watch – a human rights organisation – asked the police why they shot my husband, Vella Ravi, they were told that he had been conspiring to kidnap an ex-member of the legislative assembly, Venkata Swami. They said they shot him while attempting to arrest him”.715

Yashpal from Roorkee, Uttarakhand, testified at the Independent People’s Tribunal about the way in which his son was also arrested by the police and later killed in an encounter:

“At around 11 p.m., two jeeps full of police came to arrest my son… I could not stop the police from taking my son away. We asked them where he was being taken, and they told us: to Kotwali Civil Lines Police Station in Roorkee. We tried to go with them, but they wouldn’t allow it and told us come the next day. We therefore went to another police station, but they told us to leave. The next day, at the police station, the police told us that our son was not there. On the 5th, I came to know what had happened to him, when we got a phone call from Roorkee Police Station saying that our son had been killed in an ‘encounter’. I fainted. The police told us to collect his body and to complete the funeral proceedings as soon as possible”.716

We will now examine encounter killings, carried out by the police, armed and security forces, in some specific contexts, as described by witnesses at the Independent People’s Tribunal. These are encounters under the guise of fighting terrorism and Naxalism: the encounters of so-called Naxalites in Andhra Pradesh, the encounter killing of an alleged gangster in Mumbai and encounter killings of those labeled terrorists in Gujarat and Kashmir. We will then turn to the difficulties experienced by the families of the victims in attaining justice for these crimes.

Encountering “Naxalites”

In areas of Naxalite activity, State security legislation has encouraged forces to take the law into their own hands and use the policy of shoot to kill. The Madras Suppression of Disturbances Act (1948), adopted in Andhra Pradesh in 1961, gave legal licence to the State’s forces to carry out fake encounters against alleged Naxalites and Maoists in areas labelled “disturbed”.717

Encounters of Naxalites in Andhra Pradesh continue today.718

715 Full testimony of Kamala available at page 359716 Full testimony of Yashpal available at page 315717 ‘Disturbed areas’ were those notified by the State Government. The process of notification is a deliberate opting out

of constitutional provisions718 They are also perpetrated in other states with Naxalite activity including Chhattisgarh, Orissa and Maharashtra


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To justify the use of encounter killings against so-called Naxalites, the police often provide the rationale that Naxalites themselves do not operate within the boundaries of law-abiding society, and so the police are justified in eliminating them outside of the criminal justice system. This argument ignores the fact that many of the alleged Naxalites killed in encounters by the police are often poor agricultural workers, Adivasis and Dalits. Encounters of Naxalites (who the Prime Minister Manmohan Singh believes are the “single biggest threat to India’s internal security”) are rewarded, as they are in Kashmir and the Northeast – with promotions and medals for bravery.

Manthuri Sarada, from a pro-Maoist village in Andhra Pradesh, testified before the Independent People’s Tribunal about the torture and subsequent encounter killing of her husband, Madhuri Naga Bhoshanam, on account of his political activities:

“My husband is working with the Janashakti Party, which is now affiliated to the Maoist Party. The police have arrested him several times. The first time he was arrested, he was bailed out. Nine months later, he was arrested again. After he came out, his health was not good, and he remained in the house for some months. When he recovered, he went back to the Maoists. He then went underground and carried out his activities. He fell sick again. While he was getting treatment in Hyderabad, the police arrested him. He was questioned, tortured and shot by the police in Hyderabad city. They took his body to the forest and claimed that he had died there in an ‘encounter’”.719

The police were reluctant to release her husband’s body to her. Eventually they relented, and she described what she found:

“I went to see his body when it was taken for the post mortem. He had been brutally beaten and had bruises everywhere. His nails had been removed, and you could see wounds all over his body”.720

Her husband’s murder by the police has had serious consequences for her family’s survival:

I am blessed with two children: One is a boy, and other one is a girl. My father-in-law used to look after the family. After the police killed my husband, my father-in-law died of a heart attack. We were left with nobody except my husband’s brother. The police have ‘encountered’ him, too. Now, we are left with only females in our house. There is no male person in our house to look after us”.721

Karakawa is the sister of both of the murdered men:

“My brother, Madhuri Naga Bhoshanam, and my younger brother, Kanakayya, were both in the Maoist party. Our village consists of at least 200 families, and in every family, one of the members has joined them. In our village, it is customary to be in the Maoist party. Most of the village is pro-Maoist or pro-Janashakti”.722

719 Full testimony of Manthuri Sarada available at page 317720 Full testimony of Manthuri Sarada available at page 317721 Full testimony of Manthuri Sarada available at page 317722 Full testimony of Karakawa available at page 318

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The villagers’ support for the Maoists has led to violent police incursions to suppress Maoist activity. Karakawa described the way in which police threatened the villagers and tortured her brother:

“The police came to the village, and they conducted a small meeting, where they asked the families to tell them the names of those who are active in the Maoist party, saying that they would otherwise take strong action against us. So in that context, the police took Naka Boshanam’s brother, Kanakayya, to the police station. He was hung by his legs from the fan and was tortured by the police in the police station”.723

Following his release, the police continued to harass him and ultimately killed him:

“He was tortured several times by the police. One day troops of police came… and arrested him while he was working in the field. There and then they tortured him and killed him”.724

Investigations into the circumstances surrounding the deaths of those alleged to be Naxalites in encounters are rarely held, and those responsible are not prosecuted for their crimes. Encounters of Naxalites have attained a degree of acceptability in the public consciousness. As Naxalites are characterised in popular thought as enemies of the Indian State, their elimination is implicitly condoned by the State. Professor Sreedhar from Karnataka pointed out the lack of political will to put an end to the practice and to deal with the issue of Naxalism through non-violent means:

“As is happening elsewhere in the country, the term ‘Maoist’ or ‘Naxalite’ is like an excuse for the State and the Government to suppress the people. I also work for a small human rights group called People’s Democratic Forum. And when a couple of ‘encounters’ took place, we, along with a few other people, started pressuring the Government by making a public demand that they should stop this kind of encounter, and if possible, start a dialogue. One result was that the Chief Minister, who was as confused as ever, talked to us several times and gave us vague promises that, ‘Yes, the suggestion was important, and the Government should talk to the Naxalites instead of killing them’”.725

Since the murder of those deemed to be Naxalites is condoned by the State, there is a sense that it is easier to eliminate the threat through killing sprees across Naxalite-affected areas than to address individual cases through the criminal justice system. By allowing the police to murder alleged Naxalites with impunity, the Government of India is in breach of its constitutional obligations to uphold the right to life of its citizens.

“Gangsters” in Mumbai

During the 1980s and 1990s, a special police unit was set up in Mumbai to combat the activities of the underworld and the city’s gangs: the Dawood Ibrahim, Chhota Rajan, Ashvin Nike, Ravi Pujari and Arun Gawli. The police unit used encounter killings to eliminate alleged gangsters

723 Full testimony of Karakawa available at page 318724 Full testimony of Karakawa available at page 318725 Full deposition of Professor Sreedhar available at page 365


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Since 1982, when records of shoot-outs began to appear, police have killed 1,200 “gangsters” in and around the city.726

During the 1980s and 1990s, the practice of encounter killings by the Mumbai police to eliminate gangsters initially received popular support. The citizens of Mumbai were generally supportive of the encounters which were heralded as a way of improving safety in the city. Several Bombay policemen have spoken openly to the press about how many gangsters they have eliminated.727

In reality, however, many of those killed were not gangsters. In later years, as encounter specialists began to target lower-level criminals and display disproportionate wealth of their own, the practice of encounter killing was increasingly condemned by civil rights groups and the media.

There is no doubt that many of those encountered by the city’s police were innocent citizens. According to P. A. Sebastian, when the Committee for Protection of Democratic Rights was investigating encounter deaths for a writ petition, they found that the alleged criminals were always shot in the head and the chest. He also observed that the police always claimed that the gangsters were carrying AK-47s:

“An AK-47 is a battle weapon and can mow down a crowd. It can fire 10 bullets a second. But invariably the policeman at the receiving end of the AK-47 would come off smelling of roses and without a scratch, while the criminal would be dead as a dodo”.728

R. V. Gupta’s brother was murdered in an encounter by the Mumbai police in 2006. At the IPT, he described the rationale for encounter killings in the city:

“In the city of Bombay they kill people using the pretext of [linkage to] two members of two rival gangs: One is Dawood Ibrahim, and the other is Chhota Rajan. The police label someone as a member of one of these mafia gangs, and then they kill that person in an ‘encounter’”.729

The police murdered his brother on the pretext that he was a senior gangster:

“My brother was picked up by the police on 11 November 2006 in Vashi. From there, he was taken to a place some forty kilometres away. He was killed there in a ‘fake encounter’ at about 8 p.m. on the pretext that he was working for the Chhota Rajan gang. He was alleged to have been running the entire Chhota Rajan gang in Bombay following the death of Rohit Verma, who was an aide to Chhota Rajan. This is a very unfortunate thing. According to the police, he was handling the work of the entire Chhota Rajan gang, but the irony is that he is an ordinary man who used to travel in an auto-rickshaw; he did not even have a car”.730

726 Supra, footnote 714 727 ‘Shooting turns spotlight on Encounter Cops’ by Somit Sen, Times of India, 23 August 2003728 ‘The Decline and Fall of Encounter Cops’, The Telegraph 20 July 2008. Available at: www.telegraphindia.

com/1080720/jsp/7days/story_9573836.jsp 729 Full testimony of R V Gupta available at page 379730 Full testimony of R V Gupta available at page 379

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R. V. Gupta describes the media reporting of his brother’s murder. His description is typical of reporting of encounter killings across the country:

“Articles in all the Bombay newspapers ran the same story: that the police had got information about him, they laid a trap, and there was a confrontation between my brother and the police, in which he died. All the stories said that the alleged man was a gangster – a sharpshooter. Surprisingly, though, not a single cop ever sustains bullet injuries in any incident, and in this case, only the ‘sharpshooter’ was injured and died”.731

In 2007, a circular was issued to the police in Maharashtra stating that future incidents of encounter killings would be subject to investigation by the State’s Criminal Investigation Department. While this is a positive step towards putting an end to the practice, it has come too late for R. V. Gupta’s brother and the 1,200 victims killed in police encounters in the State since 1982.

“Terrorists” in Gujarat

“Torture is outdated in Gujarat; there, we do only encounters”. – Mukul Sinha, speaking at the Independent People’s Tribunal732

The use of encounters in Gujarat to rid the state of alleged terrorists is as a cynical strategy orchestrated by the State Government and its Chief Minister, Narendra Modi, to win popular support. In the run up to the 2005 elections, Narendra Modi made headlines by claiming responsibility for a fake encounter of the same year in which alleged underworld figure Shorabuddin Sheikh was shot dead by police, despite the fact that three senior police officers were arrested for the crime. By way of justification, he asked a rally of his supporters:

"What should have been done to a man from whom a large number of AK-47 rifles were recovered, who was on the search list of police from four states, who attacked the police, who had relations with Pakistan and wanted to enter Gujarat?”

His supporters reportedly answered by cheering "Kill him! Kill him!"733

The Chief Minister’s strategic political maneuverings were designed to appeal to Gujarati citizens who believe that encounter killings are an acceptable method of disposing of criminals. Furthermore, the fact that the victim was a Muslim man further fed into Modi’s contention that Muslims are outsiders and terrorists. As one commentator notes:

“All fake encounters [in Gujarat] involve Muslims…so, by saying that, he is saying 'I will protect you against Islamic fundamentalism’”.734

731 Full testimony of R V Gupta available at page 379732 Full testimony of Mukul Sinha available at page 350733 ‘Religions in conflict: India's state of war’ Andrew Buncombe, 7 December 2007. Available at: www.independent.

co.uk/news/world/asia/religions-in-conflict-indias-state-of-war-763592.html 734 Ibid. quoting the view of analyst and author Achyut Yagnik


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As many as 21 encounter killings by the Gujarat state police were reported between 2003 and 2006.735

Mukul Sinha listed several instances of encounter killings in Gujarat that were justified in the name of fighting terrorism:

“Regarding the latest way the image of terrorism is propagated, four ‘encounters’ have taken place. It started when an innocent boy named Samir Khan Pathan was killed in 2002. Afterwards, the First Information Report said that he was a dangerous terrorist who came specifically to kill Narendra Modi”.736

He related further incidents of encounter killing in the state in which victims were alleged to be “terrorists” attempting to murder Narendra Modi:

“After that, on 13 January 2003, Sadiq Jamal, who was a simple mechanic from Bhaonagar, was killed. It was said that he was a member of LET. He was shot in a place called Narora. After killing him, it was written in the FIR that he had come to kill Modi. And then in 2004, it became systematic. Every six months, Modi needed a dead body – not one, actually, more than one”.737

The police claimed that Sadiq Jamal shot at them first. No policeman was injured in the incident, but Sadiq’s body was found with three bullets in the head and four in the chest. In fact, a Mumbai-based journalist later claimed in court that the victim was actually a domestic servant based in Dubai who was handed over to the Gujarat police “just to oblige a top Gujarat politician”.738

“Then, Ishrat Jahan and three other young boys were killed in 2004. The same thing was written in the FIR: that they were dangerous terrorists belonging to the LET. Actually, three of them were local people, and one was from Kerala. The police made a mistake. When they saw the name Javed Sheikh, they thought he was a Muslim, but it turned out that he was

735 ‘Fake encounters and the Nation’, The Hindustan Times, 12 May 2007. As this article notes: “the list submitted by the Gujarat government did not include the names of Sohrabuddin and Kauserbi, which is a grave breach of privilege. A deliberate murky cloud of official secrecy continues to hide the numbers and circumstances of encounter deaths by the Gujarat state police”. It continues: “even this limited official report again raises disturbing questions. Six of those killed were already in police custody, and it is incredible that they could possess firearms in custody to warrant killing by the police in self defence. In one case, the police claim that two policemen fired six rounds to kill a man with a dummy revolver. There was no post-mortem, or the statutory magisterial enquiry in any of the cases. There is no material to even subsequently justify the inference that they were terrorists or grave offenders. All these facts were brought to the notice of the Supreme Court in a petition earlier this year by BG Verghese and lawyer Nitya Ramakrishnan, but the court did not find enough basis to order an enquiry into the encounter killings”.

736 Full testimony of Mukul Sinha available at page 350737 Full testimony of Mukul Sinha available at page 350738 ‘Encounter to please politician?’ The Times of India, 10 December 2003

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Pranesh Pillai whose father was an RSS [extreme right-wing] worker. So they made a big mix-up there”.739

Ishrat Jahan, a university student and part-time tutor, was shot point-blank in an “encounter”, along with three other Muslim youths, near the Chief Minister’s house in Ahmedabad. One of the other victims, Pranesh Kumar Pillai, was a boy from Kerala who had recently converted to Islam. Media investigations into the backgrounds of the victims established that none of the deceased had any links with terrorist organisations and were ordinary, innocent citizens. Mukul Sinha mentioned one such high-profile incident:

“You must all know about a very popular case: the Sorabuddin case. In fact, before the Supreme Court intervened in the Sorabuddin case, many people were killed in the name of fighting terrorism, but the matter was kept secret. However, after some days lots of facts came out, especially after some police officers were arrested”.740

In the Sohrabuddin case, Sohrabuddin and his wife, Kauser Bi, were arrested by the police and detained in a farmhouse the evening before the fake encounter in which he died. This was staged at Vishala Circle, on the outskirts of Ahmadabad, on 26 November 2005. Kauser Bi was murdered two days later, and her body was burned. Mukul Sinha recounted the way in which police officers were held accountable in the Sohrabuddin case – a relatively rare occurrence –and the impact that the arrests have had in preventing more encounters:

“We are fortunate that just last week three top police officers were arrested... All three were arrested, but two of them got bail. We opposed the bail order, and it has been cancelled now. I think the officers are now before the Supreme Court. They were arrested about eight months ago, and since then the killings have stopped. No one has died since they were arrested. People are very scared that if these people are bailed out and if they come back, then the killings and ’encounters’ will start again”.741

Tellingly, two of the three police officers arrested were described in the media as: “till recently, leading lights of Gujarat's anti-terrorist squad”.742

Mukul Sinha pointed out the typical lack of institutional support from courts in holding accountable those that are responsible for extra-judicial killings:

“What we are seeing, especially in Gujarat, is the utter failure of the judiciary. The judiciary has been completely indifferent to the whole issue”.743

In his view, the blame lies as much with the Central Government as with the state:

“All this is very well known. Unfortunately, it is because of the failure of the judiciary, on the one hand, and the failure of the Central Government, on the other, that there are absolutely

739 Full testimony of Mukul Sinha available at page 350740 Full testimony of Mukul Sinha available at page 350741 Full testimony of Mukul Sinha available at page 350742 ‘Three senior IPS officers held for fake encounter’, The Times of India 25 April 2007. Available at: http://timesofindia.

indiatimes.com/India/Three_senior_IPS_officers_held_for_fake_encounter/articleshow/1951938.cms 743 Full testimony of Mukul Sinha available at page 350


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no steps being taken against such dreadful killings. They are taking place, and Modi is winning the election on the basis of these very events. Today, Modi has won for the third time, thanks to his enormous effort to paint minorities as terrorists and by not permitting any form of investigation in any of these matters”.744

Impunity

Encounter killings will continue until policemen and armed and security forces are stripped of the impunity they enjoy. The perpetrators in the above testimonies recognise that it is unlikely that they will ever be held to account for their crimes. This stems from a number of factors that enable the police to commit atrocities without fear of punishment.

First, Sections 132 and 197 of the CrPC provide that the sanction of the Central or State Government is required in order to bring criminal prosecutions against police officers. This provision remains a serious stumbling block to the successful prosecution of police officers. Only in relatively high-profile cases does the Central or State Government proceed to prosecute the officers concerned. High-profile cases generally do not involve the poor, the dispossessed or suspected terrorists and Naxalites. Again, the poor and marginalised sectors of society are the hardest hit by the Government’s policy of willful blindness towards those killed in encounters.

If the Central or State Government does sanction prosecution of a police officer for a custodial death or extra-judicial killing, serious obstacles to justice remain. The U.S. State Department’s observation that “Court action in cases of extra-judicial killings is slow and uncertain”745 is borne out by the experiences of victims and witnesses at the Independent People’s Tribunal.

In Andhra Pradesh in 1997, the High Court held for the first time that killings in so-called encounters are homicides and must be investigated and prosecuted.746 At about the same time, the National Human Rights Commission came to the same conclusion after carrying out an inquiry into encounters in Andhra Pradesh and ordered that police officers involved in encounters be prosecuted. These steps towards achieving justice for those killed by extra-judicial methods have had no practical effect on the State Governments, and encounters continue to be perpetrated regularly.

Resham Bai reported the false encounter of her husband to the Superintendent of Police, Indore, to the Collector of Indore District and to the National Human Rights Commission, but no progress was made until an HRLN activist helped her to file a complaint with the Judicial Magistrate, Indore, under Section 302 of the Indian Penal Code (IPC):

“Mr. K. P. Gangore, helped me file a complaint with the Judicial Magistrate, Indore, under Section 302 of the Indian Penal Code. After examining the evidence, the magistrate pronounced Sanjay Pathak, who fired the shot that killed Shyamlal [Mrs. Bai’s husband] as the prima facie

744 Full testimony of Mukul Sinha available at page 350745 Supra, footnote 258 746 K G Kannabiran v. Chief Secretary, Government of Andhra Pradesh and others, 1997 (2), ALD 523 (D.B) quoted in The

Wages of Impunity: Power, justice and human rights, K G Kannabiran, New Delhi: Orient Longman, 2004 page 16

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accused and registered a case against him under the same section [302] of the IPC. However he did not pass any order against the other policemen involved in the incident.

A revision appeal against this was filed in the District Session Court and was partly allowed. The Session Court passed an order directing the Magistrates Court to find out whether a case can be made prima facie against the other 11 policemen; this matter is still sub judice”.747

As Resham Bai’s description highlights, even in cases in which the encounter killing was not justified in the name of fighting terrorism or combating Naxalism, obtaining justice for fake encounters committed by the police force is extremely difficult.

Sajida Bewa, a widow from West Bengal, has experienced similar obstacles to attaining justice for the death of her son. She testified at the Independent People’s Tribunal about the murder of her 16 year-old son and his 19 year-old friend in an “encounter” with the Border Security Force (BSF) near the Bangladesh border in July 2006:

“My son, Mintoo Mullha, and his friend, Jabbar Mandal, were arrested by the Border Security Force and beaten up. After breaking their hands and legs. they shot them”.748

The BSF, along with the local police, opened a case against the victims for attempted murder under Section 307 of the Indian Penal Code. However, no arms were recovered from the deceased. With the assistance of human rights organisations, Sajida Bewa lodged complaints with various bodies, including the Asian Human Rights Council (AHRC). The AHRC issued an appeal to pressure the authorities. Four months later, the police launched a case against two BSF constables; the case ended in their acquittal. The chief judicial magistrate ordered that the case be re-investigated, but the issue is still pending.

Yashpal from Uttarakhand described the way in which he, too, has found the police unwilling to investigate the murder of his son by the police in an alleged encounter:

“I complained about the police to Manavadhikar Aayog [a welfare organisation]. After a few days, we got a letter from the District Superintendent of Police. Both the Mangalore and Roorkee police took statements. Since then, they have done nothing”.749

Police officers who carry out encounter killings should be formally investigated by an independent body, and prosecutions should be brought against the perpetrators, who are state actors responsible for summary executions of Indian citizens. Legal provisions that shield the police and armed forces from prosecution must be abolished if there is to be an end to the practice of encounter killing as an “acceptable” means of ridding society of perceived enemies. At present, however, encounter killings retain popular support from the public, and there is little political will to put an end the practice. Encounter killings remain an expedient means for the ruling elite to eliminate their perceived enemies, despite the thousands of innocent lives lost in the process.

747 Full testimony of Resham Bai available at page 386748 Full testimony of Sajida Bewa available at page 385749 Full testimony of Yashpal available at page 315

Chapter 8: Defend the human rights defenders

Human rights defenders are individuals who strive to uphold and protect the legal and constitutional rights of their fellow citizens. From attendees at protests and dharnas (peaceful demonstrations) to doctors committed to the provision of medical attention to the poor and dispossessed, human rights defenders operate in a variety of different ways. Whatever their specific field, the role of human rights defenders and activists is vital to a democratic civil society, providing constant checks and balances on the actions of those in power and reminding the central and state governments of their obligations towards citizens.

The central and state governments of India, however, seek to undermine criticism of their policies in a variety of ways. Activists and citizens who protest against government actions often face persecution and harassment on account of their views. Methods used against opponents of government policies include: threats, torture, sexual violence, arbitrary arrest and detention, the filing of false criminal cases, extra-judicial killings and forced disappearances. Human rights defenders are branded as “outsiders”, “anti-national”, “Naxalites” and “terrorists” in efforts to discredit them and undermine their opposition.

Shashi Bhushan Pathak described the way in which authorities stigmatise those who oppose the acquisition of land for economic development in Jharkhand:

“In some places where the people are waging a war against displacement by starting movements, the Government, in order to crush these movements, is openly declaring that the movements in these areas are Maoist engineered insurrections and by dubbing the agitators Naxalites/ Maoists they are arresting these people and locking them in jails”.750

Opponents to government policies are labeled Maoists and Naxalites in a bid to damage the reputations of activists and human rights defenders who support people’s movements against their impending displacement. This section examines the specific cases of a doctor, a lawyer, a journalist, a publisher, a human rights activist and two human rights organisations whose opposition to the activities of the State has resulted in false cases being filed against them, defamation, detention or torture. These examples cover only a few of the many human rights defenders who question the policies of the Indian government and the methods adopted in attempts to silence them.

Dr. Binayek Sen

Dr. Binayek Sen is a pediatrician and human rights activist who was recently awarded the Jonathan Mann Award for Global Health and Human Rights in recognition of his contribution to international human rights work in the field. Dr. Sen worked with his wife in Chhattisgarh

750 Full deposition of Shashi Bhushan Pathak available at page 288

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to provide medical treatment to hundreds of rural villagers for more than 20 years. He is also the Vice President of the People’s Union for Civil Liberties, Chhattisgarh, a human rights organisation working to expose and put a stop to a range of human rights abuses.

An outspoken critic of the policies of the State Government and the violent activities of the Salwa Judum and others, he was arrested on 14 May 2007 on charges of sedition and conspiracy to overthrow the State under the UAPA (1967) and CSPSA (2005). In support of these charges, the police often cite his alleged “Naxalite connections”. His wife, Ilina Sen, described the real reason for his detention while speaking at the Independent People’s Tribunal:

“The reality is that he [Binayek Sen] was targeted because of his protests, because of the way that the People’s Union for Civil Liberties [PUCL] was raising its voice about the Salwa Judum and the ultimate, enormous crime in which Adivasis were being physically displaced and transported to relief camps in the name of creating security”.751

Despite the lack of substantive evidence to justify his continued detention, the police continue to claim that they have incriminating evidence against him. The courts have repeatedly denied his applications for bail.

Ilina Sen described the way in which the Government deals with those who speak out against its policies:

“Human rights defenders like Binayek Sen and many others have been speaking out about what the Government does to them… People who protest are silenced. People who raise their voices, people who protest against these events, are declared subversive”.752

Advocate Amarnath Pandey

Amarnath Pandey is a senior lawyer and a member of the Communist Party of India. He has taken up a number of cases involving human rights violations by the State, including fake encounters and custodial rapes. As a result of his legal interventions, action has been taken against senior police officers by the Chhattisgarh High Court. In attempts to discredit him, false charges of abuse and intimidation have been filed against him under the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act. An attempt has also been made on his life.

Sudha Bharadwaj from PUCL, Chhattisgarh, described the way in which the Government positions its opponents as “outsiders” and seeks to undermine their opinions in the public consciousness:

“People like Armanath Pandey who are facing false cases are facing all kinds of harassment: Dr. Binayek Sen, whom we have already talked about… it is not possible in the state of Chhattisgarh to raise your voice against Salwa Judum, against fake encounters, against executions, because the moment you do that, you are perceived as ‘if you are not with us, you

751 Full deposition of Ilina Sen available at page 255752 Full deposition of Ilina Sen available at page 255


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are with them.’ You’re in some way legitimising Maoists, legitimising Naxalites, and therefore you are a threat”.753

She described the way in which repressive legislation legitimises the harassment of those who speak out against the State. The Chhattisgarh Special Public Security Act 2005 (CSPSA)provides that any person whose actions “encourage(s) the disobedience of the established law” will be considered “unlawful”. This provision effectively criminalises any protest against the authorities by an individual or group of individuals.

“The… passing of the Chhattisgarh Special Public Safety Act…has actually made this kind of harassment legal, because there unlawful activity has become so wide that preaching disobedience to any institution…is included in ‘unlawful activity’. It has nothing to do with violence, nothing to do with anything else. Any kind of civil disobedience movement also comes under this definition”.754

Sudha Bharadwaj went on to point out the range of issues taken up by activists that now fall within the remit of the CSPSA:

“Therefore, all of us – whether it is Amarnath Pandey, who has been filing cases; Dr. Binayek Sen; whether it is Subhash Mohapatra, who has been filing cases under the SHRC and also has cases against him; Gandhians like Himanshu Kumar also has cases against him; whether it is activists of the environmental movement, like Jayant Bohidal who has been protesting against pollution of Jindal; whether it is trade-union activists – everybody is under threat”.755

The repressive nature of the CSPSA has serious implications for human rights defenders who, by opposing the Government’s policies, are in grave danger of being detained by the authorities. For Sudha Bharadwaj, whose work centres on the atrocities taking place in Chhattisgarh, this is an unacceptable state of affairs. In her view, it is only by coming together and showing solidarity with activists in the region that human rights activism may continue to flourish:

“None of us are free to raise our voices. Therefore, we would like very much that this situation of ours – the scale of forcible displacement, the scale of judicial killings going on in Chhattisgarh – should be raised all over the country, and it is your solidarity that we would bank on very much to develop the human rights movement”.756

Prashant Rahi

Prashant Rahi is a journalist working in Uttarakhand. He was a correspondent for The Statesman, a Delhi newspaper, in addition to doing freelance work. Mr. Rahi was also active in a number of people’s movements in the region. His daughter, Shikha Rahi, described his human rights work:

753 Full deposition of Sudha Bharadwaj available at page 263754 Full deposition of Sudha Bharadwaj available at page 263755 Full deposition of Sudha Bharadwaj available at page 263756 Full deposition of Sudha Bharadwaj available at page 263

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“Apart from journalism, he has been active in every sort of procession and movement regarding human rights, whether it was the Uttarakhand movement or the Tehri Dam movement regarding displacement of people. In fact, he also got the memorials of the Uttarakhand built. He had always tried to spread awareness among the people of Uttarakhand”.757

As a result of his activities, he was arrested by the police and subjected to physical and mental torture over a number of days in December 2007. Shikha Rahi described the sequence of events:

“On 17 December 2007, he was picked up from a street in Dehradun. It was a deserted place where he was walking, and suddenly some men sprang on him from a car, thrashed him, and afterwards brought him inside the car, blindfolded him, and took him to a jungle where he was subjected to beatings and threatened. On the evening of 18 December he was blindfolded again… There, he was tortured again physically, as well as mentally. He was threatened that kerosene would pumped up his anus and that he would be tied to slabs of ice. They even threatened him by saying that they would bring me from Mumbai and make him rape me in front of everybody…for about five days, he was tortured in a similar fashion”.758

Prashant Rahi was released on 20 December. Two days later, after he had recovered from his injuries, he was officially arrested by the police. When his daughter, Shikha Rahi, went to Udhampur to meet him, she found that newspaper reports were accusing her father of being a Maoist leader. She described the media reports of his arrest:

“I read in the newspapers that the zonal commander of CPI [Maoist], Mr. Prashant Rahi, had been arrested. It said in the newspapers that he had been arrested in the forests of Hanspur Khattar, where he was found sitting with four or five people on the banks of the river. It was reported that the others escaped, but only he was caught”.759

This case is another example of the methodology used to silence detractors of the Government. Labeling Prashant Rahi and others like him as “Maoists” is a common strategy used by the State to discredit opponents. False charges were brought against Rahi for a range of crimes:

“So, a person like my father was pressed with charges by the police similar to the charges pressed on Dr. Binayek Sen, such as waging war against the State, sedition, conspiracy, etc., and actually there is no evidence against him”. 760

The evidence against Prashant Rahi was entirely fabricated:

“According to the police, they recovered a laptop from his place that contained certain information that surprised the investigating agencies. Although when my dad was caught, at that time he did not have any laptop on him; in fact, he did not own a laptop”.761

757 Full testimony of Shikha Rahi available at page 268758 Full testimony of Shikha Rahi available at page 268759 Full testimony of Shikha Rahi available at page 268760 Full testimony of Shikha Rahi available at page 268761 Full testimony of Shikha Rahi available at page 268


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She pointed out the dubious circumstances of the alleged arrest:

“If he was really a CPI [Maoist] zonal commander: Would he be really sitting with four or five men who all managed to escape except for the zonal commander, who is caught without any weapons?”762

Shikha Rahi believes that her father’s arrest was politically motivated in more ways than one:

“It was very well-planned by the police. If you see from 1 December onwards, there was a meeting of all the Chief Ministers about security purposes and all. Our Chief Minister demanded 208 crores for security reasons, because according to him, since Uttarakhand shares borders with Nepal and there is the risk of a Maoist insurgency in Nepal, to deal with this threat, modernisation and upgradation of the police is required; for this purpose, money is required. For this reason, news appears in certain newspapers that a suspected terrorist has been found in Kumaon. On 24 December, the news of my father, Prashant Rahi’s, arrest comes out, and it is also written that this incident proves that there are suspected Maoists in our area, as well, and for this reason Mr. Khanduri has demanded X rupees from the Government”.763

She went on to describe the serious impact that persecution by the authorities has had on Prashant Rahi’s career and reputation:

“What is happening is that not only is an innocent man being defamed in the eyes of the people by labeling him as Maoist, then he is tortured to ensure that he is not able to do anything again, because the moment people see him they get scared because of the person’s alleged Maoist links and think as if some demon is approaching them. Even when he appeared in the courts, people used to gather around to see him as if some demon with two horns has come to the court".764

Prashant Rahi was targeted by the authorities because he participated in a number of people’s movements and through his position as a journalist and columnist, was in a position to influence large numbers of readers. His subsequent torture, arrest and defamation highlight the methods the authorities will use to silence their critics.

Pratap Singh Pratap Singh is a journalist, a publisher of Prerana Anshu magazine and a human rights activist from Uttarakhand. He, his family and fellow activists have been subjected to harassment and torture by the police on a number of occasions dating back to 2001:

“I have been active in the Uttarakhand Movement. I have participated in various struggles of labourers and farmers. Our organisation, Mazdoor-Kisan Sangharsh Samiti, has conducted various campaigns against landlords, [the] Health Minister and corrupt officials, and in consequence of all this, our comrades were sent to jails [and] beaten up many times as a matter of routine”.765

762 Full testimony of Shikha Rahi available at page 268763 Full testimony of Shikha Rahi available at page 268764 Full testimony of Shikha Rahi available at page 268765 Full testimony of Pratap Singh available at page 326

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In more recent years, the police have begun to characterise these struggles as Maoist activities. He described the kind of treatment that the police use to intimidate them:

“After the year 2004, [the] Uttarakhand police has started to torture various functionaries and activists of such peoples’ movements in the name of “Maoism”. The entering of 10 to 15 armed police personnel to any house, destruction of [the] household and arrest of [the] son in the absence of head of family, and many things of this kind have been done there”.766

Pratap Singh described the way in which the police arrested him in 2005 and accused him of being a Maoist:

“On 11 Nov 2005, I was taken away from [a] bus in front of Sherghad Police station in Bareilly, when I was going to Uttarakhand from my home place. I asked the police inspector, ‘Why are you taking me away? What right you have to take me away like this? The law does not permit you to take me away like this.’ Whatever he replied to me, I cannot repeat here. Nobody can say those things here. They took me to an unknown place, putting [a] black strip on my eyes. I said that, ‘There are directions from Supreme Court and National Human Rights Commission that if you take somebody in custody for investigation or arrest for any reason, one member of his family must be informed about such arrest’. They said: ‘You are teaching us the law? We will deal with you soon’. Until the evening, I had no idea why I was arrested. Nobody told me. Whoever I asked told me to shut up. ‘Soon you will come to know everything’, they said”.767

He was later informed of the charges against him:

“In the evening, when CO Meerganj came, he told me that, ‘Uttarakhand Police has given information that you are the trainer of Maoists – terrorists. I said: ‘Tell me where I am giving such trainings. Everybody knows me in Uttarakhand. We meet people from administration every week. I am among the people all the time, meeting them, doing demonstrations, etc. Where am I giving trainings? In which jungle I am giving trainings? Who is saying so?’ They said: ‘We can’t say. Uttarakhand police has told that you are most wanted.’ I said: “OK, fine. Then ask those people from Uttarakhand to come and give proof. You have made me sit here since morning. I feel that I am not wanted anywhere. At least inform my family members; they must be worrying.’ ‘No, no information; it is very high-level matter’, they said. As if high-level people have a right to pick up anybody from anywhere with out informing anybody. The law does not apply to them”.768

He described the circumstances of his detention in the police station:

“I was kept there for three days. No washing, no facility of any kind, not even tooth brush and soap – nothing”.769

766 Full testimony of Pratap Singh available at page 326767 Full testimony of Pratap Singh available at page 326768 Full testimony of Pratap Singh available at page 326769 Full testimony of Pratap Singh available at page 326


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The police continued to accuse Pratap Singh of being a Maoist:

“On 13 November, they started investigation with me. The people conducting the investigation said: ‘You took part in a demonstration against Health Minister! What have you achieved? You are campaigning against the landlords. What did you achieve? You have protested against everybody, but you have never been successful so you have become a Maoist now.’ I said: ‘What nonsense. There have been movements among the people, and whatever happened to them is a big question for you people. Why you are questioning me?’”770

On the next day, the media published stories about his arrest, reporting that he had been training Maoists:

“My wife went to media and media discovered where I have been kept. Only then, pressure was built on SSP to tell about my whereabouts, and also SSP was threatened that if he did not tell, then media will publish that the police has encountered me. Then only SSP admitted that I am with them, and he said that since I am a trainer of Maoists, it has been kept secret. Newspapers on 14th published on front page that ‘Maoists’ Trainer Pratap Master has been arrested from Bareilly’”.771

Those that knew him were shocked by these stories in the press:

“All my friends…were astonished at such news. Everybody was astonished: How can a person who has been working with them in movements since 1994 be a trainer of Maoists?”772

The police released him on the condition that his elderly father-in-law and brother signed statements that Pratap Singh had been arrested on suspicion of involvement in an encounter between the police and Maoists and that he had been arrested on a later date than in actuality:

“On the 16th, a case was filed in court, and the same day some police officers met my father-in-law and my brother and said: ‘We will release Pratap Singh, but here are some papers which you will have to sign.’ My father-in-law is 85 years old. He said: ‘Get any paper signed by me, but release my son’. I have brought that paper with me here, and it was written on that paper that: ‘In an encounter which happened between Uttarakhand Police and Maoists, his name was also wanted. He was called on 14th at 12 for an investigation, and investigation took place in the presence of his father-in-law and brother. No involvement of him was found, and he was released at 9 p.m. in the evening’. While actually, I was picked up on 11th and was released on 16th. Matter has been shown of Shahi Police station, which is my home place, while the truth is that no investigation was done in Shahi Police station, and my location was changed every day, with black strips on my eyes to avoid the media”.773

770 Full testimony of Pratap Singh available at page 326771 Full testimony of Pratap Singh available at page 326772 Full testimony of Pratap Singh available at page 326773 Full testimony of Pratap Singh available at page 326

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He describes the climate of impunity in which the police operate:

“I don’t have any idea as to how many places I was kept. On many occasions, they changed places twice in a single day. I was finally released on 16th. All the directions by Supreme Court and NHRC are openly violated by police while arresting people. They arrest people on some day, show it on any other day. The police function arbitrarily, and nothing is being done to control the police”.774

Against this background of impunity, the police have hounded Pratap Singh and his family:

“For the last seven years, every week, police and intelligence people come to my home. Sometimes they take away my elder son, sometime the middle son. Each and every member of my family has been tolerating this torture in the name of Maoism”.775

Geeta Singh is Pratap Singh’s wife. She described the harassment that her family has experienced over a number of years on account of her husband’s work:

“In 2004, when several labourers from Haspur-Khatta were arrested, the police came to my house four or five times. They came once at four in the morning when my husband was not at home, and took away one of our sons.

The police came to my house many times to ask questions. They came twice in the night with guns. They upturned everything in the house and scattered everything. When we asked what they were doing they didn’t say anything but simply gave us the kind of filthy abuses that police officers give, which I cannot mention here”.776

She describes how, following these incidents, her son was arrested:

“They took him away, saying that he was the son of the master of the house. When I tried to stop them, they pushed me. They put him in the car and went away. After that, he was in their custody all night… They kept my son throughout the night and threatened him many times”.777

Her husband, Pratap Singh, was also arrested the following year. The reason for their harassment became clear:

“My husband publishes a magazine called Pranashu. They are doing a lot of commenting and conjecturing. My younger son was made to sit and was told: “Your father is writing seditious things in the newspaper”. My son answered that he was writing nothing of the sort. They said that he was trying to provoke the public, to which my son retorted that they should show him the evidence".778

A free press is one of the hallmarks of a democratic society and again we see a journalist and his family being harassed on account of his political views.

774 Full testimony of Pratap Singh available at page 326775 Full testimony of Pratap Singh available at page 326776 Full testimony of Geeta Singh available at page 372777 Full testimony of Geeta Singh available at page 372778 Full testimony of Geeta Singh available at page 372


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Banglar Manabadhikar Suraksha Mancha (MASUM)

On 12 June 2008 MASUM, a local human rights group based in West Bengal, had its office searched and documents seized by the West Bengal Police. MASUM is a highly reputed human rights organisation which has intervened in several human rights cases in West Bengal.

In addition to carrying out extensive work related to the proposed economic development project at Nandigram, just a few days before the raid was carried out MASUM had convened the People's Tribunal on Torture in Moulali, Kolkata at which 1,200 victims and their families were present and 82 victims deposed before the tribunal. This public hearing formed part of the National Project on Preventing Torture in India (NPPTI), a venture funded, supported and endorsed by the European Commission. The Tribunal exposed a number of atrocities perpetrated out by the West Bengal police.

In addition to searching the offices of the organisation and harassing the organisers, the police filed cases against the organisers under sections 147, 342, 366, 323, 332, and 225 of the Indian Penal Code (rioting, wrongful confinement, kidnapping/abducting, voluntarily causing hurt, deterring a public servant from his duty, and resistance/obstruction of lawful apprehension of another person) in an attempt to intimidate the organisers and to silence their exposure of human right violations by the police force.

People's Union for Civil Liberties (PUCL)

Like MASUM, human rights organisations are often harassed by government authorities in attempts to silence them. Shashi Bhushan Pathak describes the obstacles that PUCL has faced in carrying out its work in Jharkhand and the way in which the Government has branded it a Maoist organisation:

“Whoever works with human rights in Jharkhand, they are accused of being friends with Naxalites or being Naxalite-associated organisations. Recently, a fact-finding team comprised of women from Delhi went to Jharkhand to study the conditions of women prisoners. For that, they needed permission from the Jharkhand government. We contacted the Home Secretary, who told us point-blank that: ’You people work for PUCL, and since PUCL workers are Naxalites, we cannot give you permission’. He told this to our face, and they [the Government] say it publicly too: that PUCL activists are Naxalites”.779

Opponents to economic development policy

Advocate Vrinda Grover, a panel member at the Independent People’s Tribunal, believes that the growth of India’s corporate sector has contributed to the targeting of those perceived as opponents of the Indian State’s economic development policies:

“Today, the corporate sector has got a lot of power and leverage. As a result of the unhampered growth of the corporate sector, many human rights have been violated. These numerous

779 Full deposition of Shashi Bhushan Pathak available at page 288

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violations have resulted in the rise of human rights activists, such as Binayek Sen and Prashant Rahi”.780

She pointed out that the State has drawn a nexus between those opposed to the displacement of the poor and the Government’s fight against Naxalism, which has enabled the Government to label human rights defenders as anti-national and to attempt to silence them:

“The State apparatus draws no distinction between human rights defenders and the Naxalites. That struggle has made Binayek Sen a ‘Naxalite’. In that struggle, Prashant Rahi has become a ‘Maoist’. Read their charge sheets. I have read Binayek Sen’s charge sheet and Prashant Rahi’s First Information Report; there is no evidence because none has been recovered”.781

As Vrinda Grover pointed out, the Indian State targets those who dare to question the status quo:

“These people don’t use guns; they do human rights work. Wherever it seems the police run out of steam, what do they say on the charge sheet? That the people they pick up have a Naxalite ideology and that their sympathies are with the Maoists. So, whom are you injuring? You are injuring the thought – the politics. That is the indication given by our Prime Minister... Our Prime Minister has made it clear that any alternative ideology is a crime: It is the thought that is aimed at. It is because of this kind of thinking that Binayek Sen was arrested”.782

This chapter has provided some examples of the way in which Indian authorities often target doctors, journalists, human rights organisations and other individuals or groups that bring to light the failings of the Government in upholding the constitutional rights of its citizens. In seeking to undermine its detractors, the State relies on forcible tactics. In many ways, this approach is in line with authorities’ approach to combating dissent in areas of civil conflict or unrest: with unabashed repression.

780 Full deposition of Advocate Vrinda Grover available at page 341781 Full deposition of Advocate Vrinda Grover available at page 341782 Full deposition of Advocate Vrinda Grover available at page 341

Chapter 9: A dark future?

Assault on the Rule of Law

“If the rule of law is still not stringently enforced, then I’m sorry to say that this country has a dark future. We all need to work together to restore the rule of law”. – Professor S. M. Qadri speaking at the Independent People’s Tribunal

“A reading of the morning newspapers almost every day carrying reports of dehumanising torture, assault, rape and death in custody of police, or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder". – Justice A. S. Anand in DK Basu v. State of West Bengal783

This chapter briefly examines the assault on the rule of law in India – a major cause of ongoing State violence – before turning to a number of measures necessary to end the use of violence in police custody and atrocities committed by State officials across the country.

In a country committed to fundamental rights and governed by a liberal democratic Constitution, it is the duty of the State to provide the means, laws and mechanisms to protect all citizens from abuse by the State or any individual perpetrator and to ensure that remedies are available to victims. This is the rule of law: the hallmark of a fair and just society. The rule of law in India is under assault from a number of quarters.

The first threat to the rule of law is the anti-terrorism and security laws that give the armed and security forces license to use (deadly) force against civilians. The immunity legislation that these laws and ordinary criminal laws contain compound the threat to the rule of law by protecting perpetrators from prosecution. The third challenge to the rule of law is the approach of the Supreme Court in cases challenging the constitutionality of anti-terrorism and security laws. The fourth assault on the rule of law is the more general failure of the State to intervene in allegations of abuse in custody, torture, extra-judicial killing.

Anti-terrorism and security laws

The Indian government’s enactment of AFSPA, TADA, POTA, UAPA and other security laws mark a departure from constitutional standards and ordinary principles of criminal law. The rationale for these laws and their disregard for fundamental rights are rooted in the colonial expression of control over its subjects which has no place in a liberal democratic society.

Under these laws, the police and armed and security forces possess a range of powers to arrest, detain and use violence against citizens on mere suspicion of anti-State activity. The police and armed and security forces continue to use the powers that these Acts afford to terrorise Indian

783 D K Basu v. State of West Bengal (1997) 1 SCC 416

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citizens and enable the use of torture, inhuman and degrading treatment, killing and disappearances outside of the purview of the ordinary criminal justice system. Preventive detention, the admissibility of confessions given in custody and the presumption against bail are additional draconian measures contained in these laws. Given legal expression, these provisions divest the constitutional rights of the individual of any meaning and are an assault on the rule of law.

Immunity laws

The rule of law has been further eroded by measures that protect the police and armed forces from prosecution for human rights violations in a wide range of contexts. In practice, an individual who has been tortured by the police or armed and security forces or who has had a family member killed is often precluded from attaining justice and compensation. In addition to the specific immunity granted by anti-terrorism laws (such as Section 6 of AFSPA), ordinary criminal law contains a number of similar provisions.

Sections 197(2) and (3) of the CrPC state that:

(2) No Court shall take cognisance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, whenever they may be serving, and thereupon the provisions of that sub-section will apply as if lot the expression "Central Government" occurring therein, the expression "State Government were substituted".784

Furthermore, Section 45 of the CrPC provides special protection from arrest to members of the armed forces:

"No member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government".785

In practice, the Government rarely gives permission for prosecution. These immunity laws have led to a situation of widespread impunity, in which citizens are unable to avail of remedies guaranteed in the Constitution for violations of their fundamental rights. The State’s failure to ensure that its citizens attain justice is a serious challenge to the functioning rule of law in India.

Approach of the Supreme Court

The importance of the Supreme Court in upholding the rule of law cannot be underestimated. When the Government enacts draconian laws that sanction the use of violence against Indian citizens and, in practical terms, prevent justice from being done (through immunity legislation

784 CrPC section 197785 CrPC section 45


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and the common refusal to sanction the prosecution of a State official) it is the responsibility of the Supreme Court to protect citizens and defend the rule of law.

While the Supreme Court has issued strong judgments on the treatment of detainees and has sought to protect those in custody from torture, rape and death in custody, the Supreme Court has shown little inclination to scrutinise the constitutionality of anti-terrorism and security laws. It has also failed to uphold the right of citizens to be free from torture, inhuman and degrading treatment and death by the State’s forces. The Supreme Court’s approach to constitutional challenges to these laws is disappointing and unacceptable. Rather than examining the laws from the perspective of constitutional and fundamental rights standards, the Supreme Court has chosen to only examine the Executive’s ability to enact these laws.

The Supreme Court ignored challenges to the constitutionality of AFSPA brought during the 1980s until 1997, when a five-panel bench heard the case of Naga People's Movement of Human Rights v. Union of India.786 The Supreme Court stated that it would not look into the conduct of the armed and paramilitary forces in Manipur but would only examine the legitimacy of the law. This extraordinary method of reasoning allowed the Supreme Court to uphold the constitutionality of AFSPA. The Supreme Court ruled that the powers given to the army were not arbitrary or unreasonable and concluded that they did not violate the contested provisions of the Indian Constitution. This case marked a serious assault on the functioning rule of law in India, as the Supreme Court failed to uphold the fundamental rights of Indian citizens against a regime of State terror. The Supreme Court felt unable to strike down a law that sought to uphold the “integrity of the nation”, fight “terrorism and insurgency” and protect “sensitive border areas”,787 deeming it a matter for Parliament, not the Supreme Court.

In the case of Kartar Singh v. State of Punjab,788 the Supreme Court upheld the validity of section 15 of the TADA, which made a confession statement recorded by a police officer admissible in evidence. Rather than striking down the legislation as unconstitutional, the Supreme Court stated that arguments relating to fundamental rights were not relevant. Instead, they chose to test the law only according to the Executive’s ability to enact the law.

The Supreme Court took the same approach in the case of People’s Union for Civil Liberties v. Union of India,789 which challenged the constitutional validity of POTA 2002. The Supreme Court examined the powers of Parliament to legislate the Act and stated that the need for the Act was a matter of policy, and the Court cannot scrutinise the Government’s policies. The Court went on to state that the possibility of abuse cannot be a ground for denying the vesting of powers or for declaring a statute unconstitutional. Choosing to address the challenge to the constitutionality of POTA from this perspective, the Supreme Court upheld the constitutional validity of the Act.

In both Kartar Singh v. State of Punjab and Naga People's Movement of Human Rights v. Union of India, the Supreme Court issued guidelines and a list of “do’s and don’ts” to the

786 Naga People's Movement of Human Rights v. Union of India [1997] ICHRL 117787 Naga People's Movement of Human Rights v. Union of India [1997] ICHRL 117 788 Kartar Singh v. State of Punjab, 1994 SCC (Cri) 899789 People’s Union for Civil Liberties v. Union of India (2004) 9 SCC 580

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police and armed and security forces that aimed to prevent abuses by forces in the Northeast. Despite the Court’s best intentions, these have had little practical effect.

The Supreme Court’s ambivalence towards the Indian government’s use of draconian laws marks a further assault on the rule of law. Thousands of innocent citizens have been subjected to abuses sanctioned by these laws and are precluded from attaining justice under immunity legislation. The Supreme Court has failed in its duty to uphold the constitutional rights of Indian citizens not to be subjected to arbitrary detention, arrest, torture and a range of other fundamental rights violations. The approach of the Court in these judgments demonstrates damaging deference to Executive power and remains a serious threat to the rule of law in India today.

Failure of the State to intervene in allegations of atrocities

The prevalence of torture, extra-judicial killings and forced disappearances in India demonstrates that the Indian Government has failed to take effective measures against the police force and the armed and security forces or to hold them accountable for violations of human rights. The Indian Government has demonstrated little political will to address these atrocities. Calls to repeal the immunity of State officials from prosecution have been repeatedly ignored. The central and state governments often refuse to sanction the prosecution of State officials, and the Central Government has failed to give full legal force to the recommendations of the Supreme Court to combat human rights abuses.

On paper, India has a strong commitment to liberal democratic values, and the Supreme Court has, in the past, displayed its commitment to establishing guidelines regarding the treatment of detainees.790 Despite these valiant attempts at protecting vulnerable citizens from excesses committed by the police and armed and security forces, the Supreme Court’s guidelines are often ignored in practice, and an entrenched culture of impunity prevails. As the testimonies of victims and witnesses at the Independent People’s Tribunal have demonstrated, Supreme Court interventions are not enough to protect individuals from torture, extra-judicial killing and disappearances by the police and other State officials.

The NHRC was set up in 1993 to provide a means to hold agents of the State accountable for human rights violations. In practice, however, the NHRC remains a weak body that often has little practical effect. While the introduction of the NHRC appeared to signal the Indian Government’s commitment to upholding the fundamental rights of its citizens against the excesses of the police and other State officials, in practical terms, the Government ensured that it had no real powers to hold its actors to account. The NHRC’s powers are limited to those of a recommendatory body: It has no independent powers of investigation, and its recommendations are not binding on the central or state governments. While the NHRC has made a series of recommendations regarding reforms to the criminal justice system and the accountability of state agents, the Indian Government has not taken steps to implement their suggestions.

790 See for example D K Basu v. State of West Bengal (1997) 1 SCC 416 and Sheela Barse v. State of Maharashtra (AIR 1983 SC 378)


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As Abhijeet Datta from West Bengal observes:

“Custodial violence and death is occurring throughout the country… If the guidelines in D. K. Basu’s case are followed and the detainees are examined regularly, religiously, then custodial violence can be stopped. There are so many guidelines given by the National Human Rights Commission when it comes to executions and fake encounters. In the case of fake encounters, the police have to register the case against the people who organised the encounter, there must be an investigation by the CBI, a murder case file must be lodged and there should not be any gallantry awards or promotions made during these enquiries. These are the laws, but we are human rights activists, and we find that on the ground, although these laws are in the books, it is only the higher parts of society who are enjoying the protection of the law. The real people – poor people, village people, those in prison and the workers – have no protection”.791

It is the responsibility of the State to take action against perpetrators of human rights violations and to implement the recommendations of the Supreme Court and the NHRC. Its failure to do so is itself a violation of the fundamental constitutional rights of its citizens and an assault on the rule of law.

In order to end the culture of impunity and put a stop to the further erosion of law, the Indian Government must carry out meaningful and large-scale reforms to anti-terrorism and security laws, immunity legislation and the structure and ethos of the police force. It must also empower the NHRC to be a truly effective body. These reforms will be dealt with in Chapter 10. The much-needed, large-scale reforms are a long-term project, and once committed to, will take several years to implement in practice. In the meantime, activists, lawyers, medical professionals and citizens must work together to fight impunity. Below are some suggestions of how this may be achieved in practice.

Fighting impunity

“If we are to save this country, civil society has to come forward – the intellectuals, the lawyers, the doctors – everybody has to come together to rescue this country”. – Professor S. M. Qadri speaking at the Independent People’s Tribunal

The culture of impunity is the biggest threat to the rule of law in India. Torture, extra-judicial killings and forced disappearances will not stop overnight. However, through practical action, information-sharing and raising awareness, victims, witnesses, activists and lawyers can support one another and work together to pressure the Government of India from within to uphold the constitutional principles of its citizens and to put a stop to State-sponsored terror. NGOs, human rights organisations, lawyers, medical professionals and activists each have an important role to play in the fight against impunity.

Documentation of human rights violations

Incidents of torture, extra-judicial killing and forced disappearances in India are under-reported at both the domestic and international levels. While the media covers incidences of custodial

791 Full deposition of Abhijeet Datta available at page 338

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violence and deaths, extra-judicial killings and forced disappearances, it tends to focus only on high-profile cases. The majority of India’s middle class are unaware of the full extent of the violence inflicted on the poorest and marginalised in Indian society. Through the documentation of these crimes, human rights activists can draw the attention of the domestic and international media to the daily violence inflicted on India’s citizens.

The NHRC provides annual statistics on the number of custodial deaths and complaints of violations brought against State officials. Statistics alone, however, have limited newsworthiness. By providing detailed analyses of incidents of violence at the hands of the State and focusing on individual cases, human rights organisations and NGOs can bring the NHRC’s statistics to life. By personalising atrocities committed by State agents through a process of research, interviewing and fact-finding, these organisations can draw the attention of the media to the “human face” of State-sponsored violence against citizens. A concerted and coordinated programme of documentation seeking to investigate each and every allegation of custodial torture, custodial death, murder and disappearance is vital in order to highlight the true extent of State-sponsored violence and encouraging the media to report more widely on these atrocities. In turn, this will raise awareness among citizens and civil society about the daily reality of violence in police stations, detention centres and areas of civil unrest.

India has been a member of the United Nations Human Rights Council since 2006. The documentation of human rights violations can play an important role in putting pressure on the Indian Government to address atrocities committed by the police and other State officials. Documentation may also encourage the United Nations Human Rights Council to insist that the Indian Government take strong steps to hold accountable those responsible for torture, arbitrary detentions, killings and disappearances.

Political lobbying

Citizens and activists must use the domestic political forum to highlight abuses committed by State officials and put pressure on politicians at both the state and national levels to intervene. Such interventions will encourage the Government to take action against perpetrators of violence, torture and killing.

Dr. Lenin, an expert from the People’s Vigilance Committee on Human Rights, called upon those present at the Independent People’s Tribunal to take action at the political level:

“We have to lobby for this before the parliamentarians and take the individual human rights defenders and persuade district human rights monitors to take up various cases... This whole initiative should not be merely an awareness program, nor should we only bring the voices of the aggrieved to the courts in the name of human rights. What we are looking for out of this tribunal is something that will lead to some political culmination”.792

He pointed out that lobbying can have a significant effect on the political platform:

“If you look at the Uttar Pradesh election, the bourgeois Congress party has come out and for the first time has written that the police are the most corrupt institution in its manifesto. This has happened because people from all over were writing letters of complaint”.793

792 Full deposition of Dr. Lenin available at page 346793 Full deposition of Dr. Lenin available at page 346


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In addition to drawing the attention of MLAs and MPs to human rights violations taking place in their constituencies, political lobbying can play an important role in pushing the Government towards the ratification of international conventions on human rights standards, including the United Nations Convention Against Torture (CAT). Dr. Lenin describes his desire to see CAT ratified through this process:

“We have to ensure somehow that within this year the Parliament [ratifies] the UN Convention against Torture”.794

He recognises that the process of political lobbying is a strategic tool that must identify and focus on those individuals who may be open to taking up the cause of CAT and creating a sustained campaign to push the issue forward.

“Further, we are looking at those constituencies and stakeholders whom we can push. There are a lot of forces which are against CAT and some that are for it. We want to tie the forces for CAT together and, by the end of this project, ensure a nationwide campaign that has victims, human rights defenders and the media – all the stakeholders – taking the campaign forward”.795

Formation of a political network

Activists, human rights organisations and NGOs often work in parallel with one another on a range of human rights issues, including the fight against impunity. Shabnam Hashmi, speaking at the Independent People’s Tribunal, recognised this fact and asked:

“Can we change the situation through common grief? Can we call it a common fight? Can we convert each individual’s struggle, or the different struggles in various parts of India, into a collective struggle for democracy, for freedom, and for equal rights? That is a major question that we are facing today. Are we in a position to do that?”796

In her view, organisations and individuals must join together in a common cause at the political level to mount a sustained campaign to end impunity. This effort must include more than intermittent meetings between like-minded organisations and individuals; it should comprise of a political network in which organisations enter the political fold united in their desire to uphold the rule of law:

“I am not talking about being together only in meetings and seminars, or to make a website on the Internet, or to do networking, which is a word very commonly used by NGOs. Nor am I talking about exchanging mails. What I think is that it cannot be achieved until the establishment of political forums happens”.797

Advocate Dhairyasheel Patil also urged use of the political forum as a platform for fighting impunity. He pointed out that human rights organisations, NGOs and activists often wrongly

794 Full deposition of Dr. Lenin available at page 346795 Full deposition of Dr. Lenin available at page 346796 Full deposition of Shabnam Hashmi available at page 367797 Full deposition of Shabnam Hashmi available at page 367

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see the struggle for human rights as an apolitical issue:

“The system is trying to make you apolitical. We cannot separate ourselves from politics. Politics is here to stay, and there should be politics; but politics should be in favour of the people. People’s politics greatly differs from the politician’s politics. We want to be political; it is the system that is trying to make us apolitical… Our struggle is very political in nature, and we cannot fight this if we remain apolitical. Our kind of politics is people’s politics – everyone’s politics”.798

Dhairyasheel Patil insisted that concerned citizens must collaborate with one another and share information. Rather than remain apolitical, they must enter the political space:

“If we have to succeed in our fight, we have to come together, we have to exchange views, and we have to help out each other. Please remember that this struggle is a political kind, not an apolitical fight”.799

Role of medical professionals

“Unless the doctors and lawyers come together to fight against impunity and to support the victims of torture, it will be possible for the perpetrators to evade justice in the court of law”. – Dr. S. D. Singh, speaking at the Independent People’s Tribunal

Medical professionals can play a pivotal role in highlighting atrocities committed by the police by treating victims of torture and providing detailed medical reports documenting injuries sustained. Although the judiciary is often reluctant to prosecute members of the police and armed forces, the submission of detailed medical reports of torture makes it difficult for the courts to ignore physical evidence of atrocities. The impunity enjoyed by the police and armed forces may be steadily eroded if firm evidence of torture comes to light more regularly.

The NGOs that represent victims of torture need the full support of the medical profession to bring instances of police brutality to light. Dr. S. D. Singh highlighted this requirement:

“Doctors generally avoid torture cases and do not prepare decent, honest documentation explaining what the victim has suffered, which can be produced in a court of law... Although NGOs work with torture victims, meet them and do the documentation, we [still] need decent medical testimonials. In many cases, proper medical documentation is not presented before the judiciary. NGOs must strive to get the best information and proof they can to present before the court”.800

Dr. S. D. Singh believes that it is only when doctors carry out full examinations of torture victims and follow the standards set out in the Istanbul Protocol that the impunity of perpetrators will be broken down. He noted that if medical examinations are carried out soon after incidents of torture, courts will find it increasingly difficult to disregard the evidence:

“The peculiarity of the medical evidence is that once the doctor makes a complete examination of the entire process and includes all of the specificities in his report, that report cannot

798 Full deposition of Advocate Dhairyasheel Patil available at page 402799 Full deposition of Advocate Dhairyasheel Patil available at page 402800 Full deposition of Dr. S D Singh available at page 379


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afterwards be changed, even by the doctor who first made it. The medical document is a permanent, concrete document, and not even a court of law or anyone can change it”.801

Medical professionals, with their access to potential victims, can play a unique role in exposing abuses committed by the police and armed forces in custody. In order to ensure that perpetrators of atrocities do not evade justice, efforts must be made to enlist the support of medical professionals in the fight against impunity.

Use the legal system

Only a minority of cases of torture, extra-judicial killing and forced disappearance result in prosecution, few of which, in turn, result in a conviction. While there have been several prosecutions, often due to the persistence of victims, many have resulted in acquittals on the grounds of insufficient evidence. Courts are often seen as ignoring the realities of violence in police custody and accepting the police’s version of events.

Advocate Navkiran Singh, the Director of Lawyers for Human Rights International, has fought legal cases in Punjab for 20 years. His experience leads him to conclude that one way to fight State oppression is to use the law as much as possible, despite its failings. He recognises that in many cases the legal system fails to administer justice for the victims of State terror, but takes the view that efforts to bring atrocities to the attention of the judiciary are not wasted. At the very least, through their documentation, they will help to raise awareness, both nationally and internationally, of the atrocities committed and the failures of the legal system to adequately address them:

“Whatever legal system is provided – whether it is utterly inconvenient or useless, even if nothing comes out of it – if you use the system, you will have some documentation with you. You can prove with that documentation that the legal system of this country is a failure. So we should always use the system and know how to use it... I request everybody to make every effort to avail themselves of the legal remedies available. If nothing comes out of trying the legal remedies, then at least we can claim that the legal system in this country is not running according to the hopes and aspirations of its people”.802

Navkiran Singh suggests that legal action can serve as a form of documentation and a tool for lobbying. In his view, the failings of the legal system can only be brought to light if victims and witnesses persist in pursuing justice through legal means.

Advocate Dhairyasheel Patil pointed out the futility of relying on the police to file an FIR and investigate an allegation against a State official. He believes, however, that the legal system should be used to file private complaints against perpetrators of human rights violations:

“Many have told us that the police refuse to lodge a First Investigation Report (FIR) for two to three years… If the police refuse to lodge an FIR, no one is stopping us from filling private complaints. We can easily file bulk private complaints in numbers of hundred, two hundred, all over the country. Please do not fall into the same rut.

801 Full deposition of Dr. S D Singh available at page 379802 Full deposition of Advocate Navkiran Singh available at page 308

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The magistrate, under Section 202, he sends the police to conduct an inquiry. He can also use 156(3) of the Criminal Procedure Code in a similar fashion. What is the point of sending the same police station to conduct an inquiry? So, please tell your lawyers that you do not wish to get a police inquiry done, because it really does not bear any results”.803

Private complaints have a much higher chance of success. Dhairyasheel Patil advocated persevering with the legal system and its appeal process to seek justice for human rights violations:

“Please use private complaints, and make it clear that you do not want Section 202 and 156(3) of CrPC to be used. Ask the Magistrate to conduct the inquiry himself. And if the Magistrate refuses to do so, then please make an appeal. If for some reason the appeal does not work, go ahead with a writ petition in the High Court. We may require local networks, where we could go to the appellate court and knock on the doors of the judiciary. This is the structure, and we should make use of it”.804

Collaborative Internet resource

In order for victims, activists and lawyers to share their experiences, Advocate Navkiran Singh recommends the establishment of a coordinated Internet-based resource. He believes this mechanism will support other victims, witnesses and their legal representatives and enable them to benefit from the experience of others:

“Whenever any lawyer or human rights activist faces any problem, they can avail of the experience of people working in that particular field or problem. Those experts who have dealt with such cases as lawyers or extremists should be contacted when a problem arises. This will be a great help to people, for example, facing the same problems we faced in Punjab and therefore can benefit from our experience.

If we can make an organisation where we can give people free legal aid, then it would be splendid. But at least we should have a common platform where we can share our experiences, and on that platform as I have said earlier, whatever cases come in the category of illegal custody, false encounters, tortures should be dealt with by first collecting the testimonies of the victims. We should start compiling from today and put it in a website so that the human rights activists of different states can avail of them. If they do not have access to electronic media, they can purchase them from the market. Such cases should be highlighted so that we can show the system that, if you are helping each other to violate human rights and are also giving protection to each other, then we human rights defenders are also ready to help each other [by] staying united”.805

As this chapter demonstrates, there are a number of practical ways in which civil society can work to fight impunity: through information sharing, a coordinated Internet resource, political lobbying and the formation of a political network, drawing on the expertise of medical

803 Full deposition of Advocate Dhairyasheel Patil available at page 402804 Full deposition of Advocate Dhairyasheel Patil available at page 402805 Full deposition of Advocate Navkiran Singh available at page 308


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professionals and the filing of private legal complaints. Chapter 10 discusses a number of reforms that are required to end State violence against citizens. Although these reforms are much needed, there is little political will to embark on a programme of whole-scale restructuring and reorganisation of the police force, the NHRC and abolishing the colonial mindset of “us versus them”. This is because current structures favour those in positions of power. In the short-term, therefore, the impetus must come from below: from NGOs, activists, lawyers, medical professionals and the victims and witnesses themselves. The civil society initiatives set out above remain the best tools available for fighting impunity until meaningful reforms are introduced by the Indian Government.

Chapter 10: Conclusions for reform

As the previous chapter demonstrated, the rule of law in India is under severe threat due to the continued legacy of colonial structures, laws and a culture of impunity on all aspects of law and order maintenance. Chapter 9 discussed a number of short term-steps that can help put an end to impunity. Torture, killing and disappearances orchestrated by State actors will persist as long as those in power continue to ignore its prevalence and are unwilling to take meaningful steps to eradicate it. This chapter examines the need for governmental reforms in order to protect Indian citizens from human rights violations in the future. There is little political will to implement such reforms at present, but a reform process must remain a long-term demand of civil society.

Police reform

The structure, ethos and organisation of the Indian police force remain largely unchanged since colonial times. At Independence the new rulers saw no reason to reform the police force to make it accountable to the public because it served their interests. Rather than being oriented towards the service of communities, the culture of the Indian police force is antithetical to its post-Independence, liberal, secular democratic tradition. Without large-scale reform of the police system aimed at ending the culture of impunity, officers will continue to see themselves and be seen as pitted against Indian citizens, concerned with keeping them “in check” rather than protecting them from violations of their fundamental rights.

There have been calls for reform of the police force numerous times since Independence. Between 1979 and 1981, the National Police Commission (NPC) made a series of detailed recommendations regarding the selection of police officers, their training, supervision, working conditions and pay. The NPC also proposed the establishment of an effective body to investigate human rights violations committed by the police. The NPC further recommended that the Ministry of Human Affairs set up a special unit to examine and implement these recommendations. It also recommended that Sections 132 and 197 of the CrPC (which make the prosecution of police officers for criminal behaviour subject to permission from the Government) be repealed.

The Central Government has failed to implement the NPC’s recommendations or take any meaningful steps to make the police force accountable for the atrocities it commits. The issue lay dormant until 1996, when a police officer brought a public interest litigation (PIL) case on the issue (Prakash Singh and Others v. Union of India and Others). While the PIL was pending before the Supreme Court, the Government appointed two separate committees to deliberate on the question of police reforms: the Ribeiro Committee in 1998 and the Padmanabhaiah Committee in 2000. The committees came to broadly similar conclusions regarding the urgent need for police reforms. Due to political opposition from a range of parties, however, the reforms were never carried out.

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The Ministry of Home Affairs set up an expert committee, the Soli Sorabjee Committee, in September 2005 to draft a new Police Act. In September 2006, the Supreme Court finally delivered its judgment in Prakash Singh and Others v. Union of India and Others. The Court instructed the central and state governments to comply with seven directives that laid down the practical mechanisms on which to base police reforms.806 Less than a month later, in October 2006, the Soli Sorabjee Committee submitted the draft of a Model Police Act to the Government. The Model Police Act (2006), the culmination of almost three decades of deliberations on police reform, is a weak and even dangerous act.

In Prakash Singh and Others v. Union of India, the Supreme Court directed all state governments and the Central Government to institutionalise police accountability by passing new laws or complying with seven directives laid down by the Court to check illegitimate political interference in police functioning and ensure police accountability. Despite the Supreme Court’s directions, many states have continued to resist reform while others are enacting hastily drafted laws that actually reinforce colonial policing practices. Most of the reform processes that have taken place in response to the directive were conducted without consultation or input from civil society groups.

The Model Police Act (2006) envisages the separation of investigative and law and order functions within the police force. It states that specialised crime investigation wings and departments will be set up and equipped with adequate facilities, scientific aids and qualified personnel. The provision of suitable equipment and resources is clearly important, but it must be accompanied by a robust training programme. In order to combat the use of torture as an alternative method of investigation, police officers responsible for crime investigation must be given formal training on criminal investigation techniques.

While the Model Police Act does state that police stations must display the Supreme Court guidelines and departmental orders dealing with arrests, as well as details of persons arrested and held in custody, it does not go far enough in tackling the endemic violence in police stations across the country. In addition to training in criminal investigation, the police must be given formal training on legal, constitutional and human rights standards regarding all aspects of arrest, detention and information gathering.

Despite the positive steps proposed in the Act regarding the training of police officers in investigative techniques and its theoretical commitments to fairness and equality, the Act is fundamentally flawed. The Model Police Act has been drafted in accordance with the desires of the Government and the police and has failed to take into account the needs and desires of Indian citizens. Under the Act, the police retain all the authority of a colonial police force to ensure the maintenance of law and order at all costs. The Act does not envisage the police as a body whose aim is to serve the population and continues to characterise the police as a “force” with legally sanctioned powers to impinge on the life and liberty of Indian citizens. The Model Police Act disregards fundamental human rights principles and the rule of law.

806 Prakash Singh and Others v. Union of India and Others (2006) 8 SCC 1


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The Act concentrates on the accountability of senior police officers, but fails to address the poor working, pay and living conditions of junior officers. Failure to address these fundamental issues will allow corruption and extortion among lower-ranking police officers to continue unabated. The Model Police Act emphasises the need for greater police autonomy and a movement away from the politicisation of the police force embedded in the 1861 Act. The Act illustrates the need to establish a State police board for the appointment of certain senior officers and to stipulate a fixed minimum tenure for various ranks, from the Director General of Police to the Station House Officer.

While it is obviously important that politicians not interfere in police functioning, this reform will not reduce incidents of torture, extra-judicial killings and forced disappearances in India. The Act stresses the need for greater autonomy, but has neglected the more pressing issue of the culture of impunity within the police force. The Model Police Act seeks to provide privileges to police personnel without adequate accountability and redressal mechanisms for arbitrary actions. Under the Act, the authoritarian nature of the police will be strengthened rather than diluted. Rather than checking the powers of the police force and making it more accountable, the Act seeks to give the police autonomy – this is unacceptable. The police must be accountable to both the courts and to the state and Central Governments for violations committed against Indian citizens.

Sections 159 to 171 of the Act discuss the intention to set up a Police Accountability Commission comprising of a retired High Court judge and a Director General of Police, among others, to enquire into allegations of “misconduct” and “serious misconduct” on the part of the police. The Act envisages that the Police Commission would communicate its findings to the DGP and directs that an FIR should be filed or that departmental action be taken. It gives the DGP an opportunity to respond to the department’s view. Although the Police Accountability Commission sounds impressive, in serves no useful purpose in practice.

Advocate Vrinda Grover, giving her analysis of the Act in a recent article, points out the way in which serious criminal offences committed by the police are described as mere “serious misconduct”. As she observes, this demonstrates the way in which the authors of the Act have an underlying mindset of protecting the police from criminal prosecution for violations committed in the course of their duties:

“Grave crimes [such as] murder and rape in custody or deprivation of liberty and grievous hurt to the human body are flippantly categorised as 'serious misconduct'. It is worth recalling that under the Indian Penal Code, some of these offences attract the death penalty. The use of the term 'misconduct' here is very objectionable and betrays the intent of the drafters to shield the police from the rigours of law and punishment. It reveals an obstinate insistence to describe crimes by the police as aberrations despite overwhelming evidence to the contrary”.807

The Model Police Act describes other serious criminal acts by police officers, such as unlawful search, unlawful detention, threats and torture, as acts constituting mere “misconduct”. These

807 ‘Recipe for Impunity’ by Vrinda Grover Combat Law Volume 6, Issue 4, July - August 2007

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acts are treated as minor offences when committed by police officers and entail a maximum penalty of just one year in prison. Rather than combating the use of torture, custodial violence, rape and death by the police, the Act appears to present a parallel structure, outside of ordinary criminal law, which seeks to dilute their criminality.

Vrinda Grover also points out the weaknesses of the Act’s accountability mechanism and the way in which it seeks to subvert the rule of law by protecting police personnel from prosecution:

“All that this state accountability commission can do after conducting an inquiry – for which of course no time frame has been specified –- is to have a FIR registered against the delinquent police officer. The question that arises is why should the ordinary law of the land not apply to the police force? Why should the commission of a cognisable offence such as death or rape in police custody or extra-judicial killing not mandatorily lead to the registration of an FIR and investigation? In a constitutional democracy, the police cannot be privileged and placed beyond the reach of the ordinary law of the land”.808

The Police Accountability Commission has no real power. The constitution and actions of the Commission are gestures that aim to appear to increase police accountability, but will not meaningfully address the endemic culture of impunity in the police force. The Commission will, in fact, shield police personnel from prosecution for crimes through an arduous bureaucratic procedure. Sections 173 to 175 of the Model Police Act announce the introduction of a District Accountability Authority. Again, while in name the Authority sounds impressive, its only function is to forward and monitor complaints of police misconduct. As Vrinda Grover observes:

“The role envisaged for the District Accountability Authority is no more than that of a post office”.809

Despite the NPC’s recommendation to repeal the immunity laws contained in Sections 132 and 197 of the CrPC, the Model Police Act retains this protection and consolidates police impunity. This is an unacceptable missed opportunity to address a fundamental cause of State violence against citizens and the most significant failing of the Act.

Another cause for concern is the ambiguity that the Act contains. Terms such as “terrorist activity”, “militant activities”, “insurgency” and “organised crime” pepper the Act, although there is no attempt to clearly define these terms. Instead, these terms are defined by what they include – leaving them wide open for abuse. In addition to the potential danger that these terms are expanded to include whole groups of citizens, individual states are granted the powers to declare certain areas as Special Security Zones. The Act fails to address precisely what constitutes a Special Security Zone or why these Zones are necessary.

One example of the large potential for abuse offered by the Act is Section 97, which grants wide powers to the police to remove people from their homes. The section states that a person may be removed if “it appears to the Commissioner of Police” that the person’s “movements

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or acts” “are calculated to cause alarm danger, or harm to persons or property”. This section gives enormous and unacceptable powers to the police.

Vrinda Grover summarises the overall damage that the implementation the Model Police Act will cause:

“Greater autonomy is being granted to the police force without instituting adequate and effective accountability measures. Under the garb of police reform, the police have staked its claim for a share of State power. Free from executive control, privileged above the district magistrate, shielded from the ordinary law of the land and unaccountability to the people, the police force poses a serious threat to democratic practices and institutions. We, the people of India, have little reason to celebrate these police reforms. The police, of course, have much to cheer about”.810

The majority of the reforms contained in the Model Police Act are moving in the wrong direction. Rather than ensuring increased accountability and addressing impunity, the Act expands the powers of the police.

Another major failure of the Model Police Act is its failure to improve the poor working, living and pay conditions of junior police officers. Without addressing this, the Act does little to combat the corruption and extortion that these officers are susceptible to as a result. It is unacceptable that the Model Police Act form the basis of the police force in India. With its unsuitable language, continued protection of the police and wide, undefined terms, the Act will do little to reduce the occurrence of torture, extra-judicial killing and forced disappearances by the police. Instead, it will serve to strengthen the prevailing culture of impunity.

Panel member K. S. Subramanian, himself a retired Director General of Police, believes that police reform should focus on creating a community-oriented police service and that this move must come from the public rather than the State:

“What I feel is that we need a complete change from bottom-up and not from top-down. So far, most of the police reform exercises have been from top-down and not from bottom-up. What we need to do is to reform the slow pace of police bureaucracy, which is oppressive and violent. You can see how the subordinate police behave, and the senior police are keeping quiet, as they are not interested in reforming the structure. What we need is a fundamental change. The upsurge has to come from below, and I see the upsurge emerging from discussions like this”.811

Legislative reform

Ratify CAT and enact a specific anti-torture law

Despite the attempts of the Supreme Court to protect detainees from violence, rape, torture and death in custody by issuing directives to the Government and guidelines to the police812 and

810 Ibid. 811 Full deposition of K S Subramanian available at page 399812 See for example the guidelines issued in D K Basu v. State of West Bengal (1997) 1 SCC 416 and Sheela Barse v.

State of Maharashtra (AIR 1983 SC 378)

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armed forces,813 such incidents have not diminished the frequency and severity of torture in custody. It is the responsibility of the Indian Government to enact effective domestic legislation to address the prevalence of these atrocities in India today. The Indian Government has strong constitutional obligations to uphold the fundamental rights of its citizens, punish perpetrators of human rights violations and ensure that legal remedies are available for victims.

The Indian Government must ratify CAT as a matter of urgency. The process of ratification consists of enacting specific anti-torture legislation into the domestic law in accordance with the definitions and processes set out in the Convention.

Torture must no longer be tolerated. In the rare instances that cases of torture are actually heard in court, minimal compensation is awarded, and only after a very lengthy procedure. Compensation alone, however, is not sufficient redress for torture. The perpetrator of torture should be tried under criminal law for his or her crime and punished accordingly. The prosecution and punishment of acts of torture by State agents is no small task. Attempts to bring perpetrators to justice are thwarted on all sides: from denial of access to filing complaints at a police station, to police officers’ unwillingness to prosecute a colleague, to a medical examination by complicit medical professionals, to the possibility of false counter-charges to possible connivance of the judiciary.

As some commentators have observed the:

“reluctance to investigate and prosecute appears to result in part from embedded conflicts of interest, since police and prosecutors in effect are expected to investigate and prosecute their colleagues, and in part from an attitude among law enforcement and security officials that torture, illegal detention, and related practices are tolerable and indeed necessary tools in combating crime and terrorism”.814

In recognition of the reluctance to investigate and prosecute violations committed by police and State forces, the Indian Government should establish a dedicated, independent unit to receive and investigate complaints of torture and to prosecute perpetrators accordingly.815

Ratify the ICPAPED and enact a specific law regarding forced disappearances

Impunity is particularly entrenched in cases of forced disappearances. As Mukul Sharma, the Director of Amnesty International India, observes:

“Courts, prosecution services, the investigating police and State human rights commissions have repeatedly failed in their obligations to investigate crimes of forced disappearances, and remained subordinate to the interests of State institutions such as the military and civilian executive authorities, who have sought to prevent access to truth and justice”.816

813 See for example the list of ‘dos’ and ‘don’ts’ issued by the Supreme Court in Naga People's Movement of Human Rights v. Union of India [1997] ICHRL 117

814 Supra, footnote 58, page 206815 This is also the recommendation of the Asian Human Rights Commission in ‘The role of the police in human rights

implementation - III. Systemic flaws that allow police abuse and impunity’ available at: www.ahrchk.net/pub/mainfile.php/rol_hr_asia/218/

816 Supra, footnote 478


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India signed the International Convention for the Protection of All Persons from Enforced Disappearances in February 2007. In spite of this, the Government has failed to take action to ensure that the Convention is incorporated into the domestic law and that perpetrators of forced disappearances are prosecuted.

There is a strong need to enact a specific domestic law prohibiting the crime of forced disappearance. The law should ensure that all victims of forced disappearances are able to attain full reparation in recognition of the crime. An independent prosecutor’s office should be established to investigate and bring prosecutions against the guilty individuals.

Repeal immunity legislation

The enactment of specific legislation criminalising torture and forced disappearance and the setting of independent offices to prosecute these crimes will only be meaningful if it is accompanied by a repeal of all immunity provisions allowed for in the CrPC and anti-terrorism and security laws. The prosecution of police officers and members of the armed and security forces must no longer be subject to the express permission of the state and Central Governments. As this publication makes clear, too often the police and armed forces are shielded from prosecution by their political allies.

Empower the NHRC and SHRCs

“The Government holds up the NHRC and other statutory bodies as evidence of its commitment to human rights and a progressive democracy. However, closer inspection of these bodies reveals a lack of authority, restricted mandate, lack of adequate resources and often an unwillingness to address key human rights concerns in the country”. – Amnesty International, Submission to the UN Universal Periodical Review, April 2008817

Set up in 1993 through the Protection of Human Rights Act, the NHRC and SHRCs have a mandate to prevent and punish human rights violations. Beginning with just 496 complaints in the first six months after it was established, 76,444 cases were registered for consideration by the Commission in 2007.818 The statistics demonstrate a clear need for an independent human rights body and justify the continued existence of the NHRC and SHRCs.

The NHRC and SHRCs have brought a welcome additional level of scrutiny to human rights violations committed by the police and other State officials. Since its inception, the NHRC has issued a considerable number of instructions and guidelines to the Central Government concerning such issues as custodial violence, rape and death, encounter killings, visits to police lock-ups, arrests and detention and human rights standards in prison.

Despite these positive developments, the NHRC and the SHRCs, in their current form, have limited enforceability mechanisms and are often sidelined to the status of mere commentators.819

817 Amnesty International, Submission to the UN Universal Periodical Review: First Session of the UPR Working Group, 7-11 April 2008. Available at: www.amnesty.org.ru/library/Index/ENGASA200212007?open&of=ENG-333

818 Supra, footnote 9819 Although the Protection of Human Rights (Amendment) Act, 2006 (PHRAA) was recently introduced it has failed to

rectify the serious challenges faced by the NHRC

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Their powers were never intended to be truly meaningful. The NHRC is deeply politicised: The appointment of its chairperson and members is the responsibility of the Prime Minister, the Speaker of the Lower House, the Minister of Home Affairs and the Leader of the Opposition. Civil society groups play no role in the selection procedure.

Another major weakness of the NHRC is its inability to investigate human rights violations until a matter is formally brought to its notice or if another statutory body is already looking into an issue. In addition, the NHRC is only able to address cases relating to events which took place within the last year.820 This time limit is problematic, as many victims bring cases to the NHRC over a year after the incident, because they approach Commission is a last resort after exhausting other mechanisms.

The NHRC has no independent powers of investigation, but rather must rely on the police and other State bodies for information. This is a serious flaw and often leads to a farcical situation in which the very police station responsible for human rights violations is given authority to investigate them. In order for human rights violations to be properly addressed, the Indian Government must endow the NHRC with independent investigatory powers.

Furthermore, the NHRC’s mandate is severely restricted when addressing complaints brought against members of the armed forces. Under Section 19 of the Protection of Human Rights Act (1993), when the NHRC receives a complaint of a human rights violation by the armed forces, it cannot independently investigate the case, but can only seek a report from the Central Government and make recommendations on its findings. This is a serious concern. This provision prevents the NHRC from effectively tackling human rights violations by members of the armed and security forces. In its annual report for 2007-2008, the Ministry of Home Affairs states that between January 1994 and December 2007, a total of 1,158 complaints were made against personnel of the army and central paramilitary forces. Out of these, 1,118 were investigated, 1,085 were found to be false and only 33 were found to be “genuine”.821 It is clear that the NHRC is having very little effect in holding members armed and security forces accountable for human rights violations.

The NHRC’s most significant flaw is that it has no power to enforce its decisions. When its enquiries discover human rights abuses, the NHRC and SHRCs can only recommend that the Government take action against the perpetrator or grant relief to the victim.822 If a state government refuses to accept the recommendations of the Commission, there is no legal provision that empowers the NHRC to force the government to implement its recommendations.

The NHRC is under-funded, under-staffed and labours under a stultifying back-log of cases. Complaints made to the NHRC often go uninvestigated or are rejected on frivolous grounds. The Commission relies for financial support entirely on the Central Government, which can allocate funding as it deems fit.

820 PHRA, section 36(2)821 Supra, footnote 9, page 69822 PHRA, section 18


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In a functioning liberal democratic country, it is imperative that the rule of law is upheld and that perpetrators of human rights violations are brought to justice. The NHRC and SHRCs should be empowered to fulfill this role as independent arbiters of human rights allegations.

Appointments to the NHRC and SHRC must also be de-politicised. Selections must be made with greater transparency, and civil society groups should play an active role in the selection of their members.

There is an urgent need for the NHRC and the SHRCs to have greater powers of both investigation and enforcement. Their role should not be limited to a mere recommendatory one; all decisions of the NHRC should be binding and have equal force to court decisions.

For the Indian Government to begin to address the large-scale violations of human rights taking place on its soil, it must carry out meaningful reforms of the police, the domestic laws and the role and function of the NHRC. These reforms will not be initiated in the near future due to the lack of political will. Individuals, human rights organisations, NGOs and concerned citizens should take action, even in small ways, to put pressure on the Indian Government to increase transparency, protect citizens against violations of their rights, uphold the rule of law and fight impunity through a long-term process of reform. Only by concerted and popular will from its citizens can India’s government be expected to effect meaningful change. Without it, it will continue to lack the incentive for reform, since the current anachronistic structures, laws and culture protect the rulers at the expense of ordinary Indian citizens.

Recommendations of the Independent People’s Tribunal on Torture, Extra-Judicial Killings and Forced Disappearances, 9th and

10th February 2008

Over two days in February 2008, we heard over 100 testimonies of victims and witnesses of torture, extra-judicial killings and forced disappearances carried out by the police; armed, paramilitary and security forces; and State-sponsored militias across India.

Listening to the shocking accounts of brutality and killings perpetrated by both State and non-state actors, we are left with an overwhelming sense of powerlessness to comfort victims and to assure them and their families that justice will be done.

The Constitution of India upholds the fundamental right to life, which includes the right to a life of dignity. The majority of the victims and witnesses who attended the Tribunal have had this right violated by the State.

In our view, the violence and profound injustices that occur daily across the country can only be addressed if the Government of India takes a number of decisive steps to end impunity and to uphold the fundamental constitutional rights of its citizens.

The criminal justice system and the police force in India are the products of a colonial regime that was intent on suppressing dissent and maintaining “law and order” over its “subjects” at all costs. This system is fundamentally at odds with the post-Independence constitutional tradition.

In order for the fundamental constitutional rights of all citizens of India to be fully realised, full-scale reform of the criminal justice system and its police force must take place. We appreciate the enormity of this task, but in our view nothing less will suffice if the Constitution of India is to find meaningful realisation for millions of the nation’s citizens. In the meantime, there are a number of short and medium-term steps, set out below, that will dramatically reduce the number of atrocities committed by State and non-state actors across the country.

We appeal to the Government of India to:

1 Immediately repeal all legal provisions that provide impunity for the police and members of the armed, paramilitary and security forces from prosecution for acts of torture, extra-judicial killing and forced disappearances.

The police and security forces are shielded from prosecution for atrocities committed in pursuance of the maintenance “law and order” by a blanket of immunity legislation. Legal

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provisions, such as Sections 197 and 45 of the Criminal Procedure Code (1973) and Section 6 of the Armed Forces Special Powers Act (1958) allow for the prosecution of a State agent only with the explicit permission of the Central or State Government. This permission is rarely granted in practice.

As the experiences of victims, witnesses and experts at the Independent People’s Tribunal have shown, these laws give the police and the armed forces enormous powers to perpetrate acts of sexual violence, torture and murder against those considered “enemies” of the State. This, in turn, has led to the dehumanisation of marginalised populations in the eyes of the State’s forces and the increased brutalisation of society.

In protecting the armed and security forces from prosecution and punishment for these crimes, the military are given free reign to carry out atrocities against the poorest and most vulnerable members of society with total impunity.

The Supreme Court has repeatedly upheld the right to life in the Indian Constitution as a fundamental right. It has also interpreted Article 21 to include the right not to be tortured or arbirtrarily killed. The continued impunity of State actors who carry out these atrocities is wholly unacceptable in a liberal, constitutional democracy. It also empties constitutional standards of any meaning for the victims, witnesses and their families, causing many of them to lose faith in the Indian State as one that will uphold their fundamental rights.

2 Prosecute individual police officers and members of the armed and security forces for their roles in torture, extra-judicial killing and forced disappearances.

Under international law, nation states have an obligation to bring perpetrators of serious criminal offences to justice. Despite this, victims and witnesses at the Independent People’s Tribunal testified to the failure of the justice system to punish those responsible for the torture and execution of their family members.

The State is not justified in either condoning or resorting to torture, extra-judicial killings, and illegally abducting citizens under any circumstances.

Perpetrators of violence are often State actors. The Indian Government must take immediate steps to prosecute individuals responsible for atrocities committed against Indian citizens. This will send a clear message that torture, extra-judicial killing and forced disappearances will not be tolerated in a liberal democratic society.

A number of victims and witnesses at the Independent People’s Tribunal testified to incidents of incommunicado detention, custodial violence, torture and death in contravention of the Supreme Court’s directions in D K Basu v. West Bengal and constitutional safeguards. Victims were often not informed of the charges against them, their relatives were often not informed of their detention and place of detention and medical examinations were rarely carried out.

The central and state governments often overlook complaints against the police and security forces on the grounds that remedial action in such cases would weaken the police’s resolve to fight criminality and civil unrest with force. It is a regrettable irony that

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it is the State authorities and police forces – whose responsibility it is to protect citizens from violations of their constitutional rights – that themselves violate the rights of Indian citizens.

The prosecution of police officers and members of the armed and security forces for atrocities will also strengthen the rule of law, which is considerably diluted by the continued impunity of State agents committed against Indian citizens.

The prosecution of police officers and members of the armed and security forces for human rights violations will serve to strengthen the confidence of Indian citizens in a government that demonstrates its willingness to uphold the constitutional rights of its people.

3 Repeal the Armed Forces Special Powers Act (AFSPA), the Armed Forces Special Powers (Jammu & Kashmir) Act (AF(J&K)SPA), the Unlawful Activities (Prevention) Act (UAPA) of 1967 and the Chhattisgarh Special Public Security Act of 2005 (CSPSA)

The Indian Government has introduced a range of laws to combat civil unrest and to fight terrorism. Despite the repeal of TADA and POTA due to popular opposition, AFSPA, AF(J&K)SPA, UAPA and CSPSA remain in force today. These laws have strengthened the power of the State over the individual and continue to undermine the fundamental rights of Indian citizens. These laws give extra powers to the police and armed and security forces and often deviate from accepted norms of criminal justice.

The sweeping powers given to the police and armed and security forces under AFSPA, AF(J&K)SPA and UAPA are not predominantly used to prosecute and punish actual terrorists, but rather as a tool that enables the use of preventive detention and a variety of abuses by the police, including extortion and torture.

The lack of a definition of “unlawful activities” in the UAPA and CSPSA and a broad interpretation of the term in practice leave the crimes of “abetment of terrorism” and “involvement in terrorism” wide open for interpretation and susceptible to abuse. The UAPA and CSPSA give inordinate power to State authorities to oppress those it considers to be opponents of its policies.

The rule of law is being steadily eroded in regions governed by anti-terrorism and security laws. AFSPA, AF(J&K)SPA, UAPA and CSPSA are lawless laws – antithetical to India’s constitutional tradition. The legal protections available under criminal law and the Constitution to protect citizens from State-sponsored atrocities are often emptied of practical meaning in these contexts. The Indian Government must repeal these laws with immediate effect.

4 Immediately release Dr. Binayek Sen and end the persecution of other human rights defenders

Human rights defenders are individuals who strive to uphold and protect the legal and constitutional rights of their fellow citizens. Their role is vital to a democratic civil society,

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providing constant checks and balances on the actions of those in power and reminding the central and state governments of their obligations towards their citizens.

The central and state governments of India, however, seek to undermine criticisms of their policies in a variety of ways. Activists and citizens who protest against the State’s actions often face persecution and harassment on account of their views. Methods used against opponents of government policies include: threats, torture, sexual violence, arbitrary arrest and detention, the filing of false criminal cases, extra-judicial killings and forced disappearances. They are branded “anti-national”, “Naxalites” and “terrorists” in efforts to discredit them and undermine their opposition.

Dr. Sen is the Vice President of the People’s Union for Civil Liberties (PUCL), Chhattisgarh, a human rights organisation working to highlight and put a stop to a range of human rights abuses. An outspoken critic of the policies of the State Government and the violent activities of the Salwa Judum amongst others, he was arrested on 14 May 2007 on charges of sedition and conspiracy to overthrow the State under the UAPA (1967) and CSPSA (2005). In support of these charges, the police often cite his alleged “Naxalite connections”. The arrest of Dr. Sen is just one example amongst many of the State’s desire to silence dissenting voices and discredit legitimate expression of disaffection against the policies of the State.

A number of victims, experts and witnesses at the Independent People’s Tribunal spoke out about the threats, intimidation, arrests, false charges and even murder attempts against human rights defenders who speak out against the State’s anti-people policies. This must end immediately. If the State continues to persecute those individuals and organisations that oppose the Government’s policies it will close the opportunity for meaningful dialogue and eventually push disaffected groups to more confrontational measures.

5 Ratify the United Nations Convention Against Torture (1984) and its Optional Protocol, incorporate its provisions into domestic law and accept the request of the United Nation’s Special Rapporteur to visit India.

The prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute, with no exceptional circumstances, including war, internal disturbances or public emergency.

Despite the efforts of the Supreme Court to prohibit torture in police custody, there is no specific domestic legislation prohibiting the use of torture in India. Alongside Sudan and the Democratic Republic of the Congo, India is one of just nine countries who have signed, but not yet ratified, the UN Convention against Torture of 1984 (CAT). Despite signing the Convention in 1997, the Indian Government still has not introduced domestic legislation to incorporate the provisions of CAT into domestic law.

The Indian Government must enact a national law to make all acts of torture and other cruel, inhuman or degrading treatment or punishment criminal offences and to establish mechanisms to investigate and punish the guilty. The ratification of CAT will strengthen

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the domestic legal system and provide an added degree of protection to those at risk from torture in custody. The introduction of specific anti-torture legislation will send a strong message to the police and armed and security forces that the torture of Indian citizens will not be tolerated under any circumstances.

Despite a number of requests dating back to 1993, the Special Rapporteur to CAT has still not been invited to visit India. A visit by the Special Rapporteur would demonstrate India’s commitment to transparency and the protection of its citizens from abuses by State officials.

The Optional Protocol to CAT came into force in 2006. It calls upon states to set up national preventive mechanisms for the prevention and punishment of torture and other cruel, inhuman or degrading treatment or punishment. The Indian Government must sign and ratify the Optional Protocol as a sign of its commitment to upholding the rights of its citizens to be free from torture and inhuman and degrading treatment at the hands of the State officials.

6 Carry out large-scale reforms of the police system in India

The modern Indian State was the product of a freedom struggle that foresaw a nation freed from colonial oppression and a better life for all Indian citizens. While India adopted a liberal democratic Constitution, it retained the colonial administrative, police and judicial structures of the British regime. The Indian Police Force of 1861 and the Indian Penal Code of 1860 remain the basic models of crime and order management today.

The Indian Government has recognised the need for police forces across the country to be modernised. It has, however, yet to implement the reforms suggested by the National Police Commission and others.

The Government must undertake extensive reforms of the Indian Police Force. Unlike the police in many other democratic countries, who are characterised as “community-serving”, the police system in post-Independence India remains very much a police “force”. The Indian police force is dominated by the colonial mindset of treating the public as subjects to be controlled rather than citizens to be served. The police force in India must be transformed into a police service committed to the protection of Indian citizens, rather than to their control.

7 Provide the Indian Police Service with training on criminal investigation techniques, NHRC guidelines, constitutional standards and the directions of the Supreme Court on issues relating to detention and custody.

The police force is under pressure from the public, politicians and the media to combat criminal activity. They do not receive adequate training in investigative techniques, which often prompts them to take “short-cuts”. The use of torture in police stations in the course of the investigation of criminal activity is widespread. Police officers often employ “third degree” methods of torture on detainees in an effort to produce results.

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The police are lacking comprehensive training on NHRC guidelines, constitutional and human rights standards and the directions of the Supreme Court on issues relating to detention and custody. A recent study by the Institute of Correctional Administration in Punjab discovered that 58 per cent of those police officers surveyed felt that there was no sense of shame associated with police officers accused of torture. The same survey found that only 10 per cent were aware of the guidelines issued by the NHRC on custody-related issues, and only 12 per cent could correctly identify relevant Articles of the Constitution relating to detention-related matters.

The Indian Government must take steps to provide extensive training on criminal investigation and to educate its police officers regarding the laws and constitutional standards by which they are bound in the course of their duties.

8 Enact legislation to provide for monetary compensation to be paid to the victims (or in cases of death, to their families) of torture, extra-judicial killing and forced disappearances committed by State actors.

Hundreds of thousands of Indian citizens have been subjected to human rights violations by the State’s police and armed and security forces and by State-sponsored militias, such as the Salwa Judum. In addition to repealing laws that seek to legitimise and protect the perpetrators from prosecution for these atrocities, the State must recognise that victims are deserving of monetary compensation and reparation as a matter of right. Their lives have been disrupted and brutalised by the State, and this must be reflected in specific legislation.

The Indian Government must put an end to its continued reservation to Article 9 of the International Covenant on Civil and Political Rights, which denies an enforceable right to compensation to victims of unlawful arrest or detention.

Victims and witnesses of torture, extra-judicial killings and forced disappearances in Punjab have experienced great difficulties in attaining compensation and reparation for violations committed by the police, armed and security forces in the mid-1980s to mid-1990s. The Indian Government must take steps to ensure that the families of the tortured and murdered attain compensation in recognition of their losses.

9 Empower the NHRC and SHRCs to independently investigate allegations of human rights violations by the police and members of the armed, paramilitary and security forces and to enforce their decisions.

The NHRC and SHRCs were introduced in 1993 as a means of holding agents of the State accountable for human rights abuses. One of the primary functions of the NHRC is to receive complaints and initiate investigations into violations of human rights by public servants. Abuses of police power and human rights violations comprise over 60 per cent of the complaints made to the NHRC every year. In 2007, 76,444 cases were registered for consideration by the Commission.

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Due to its recommendatory role, restricted remit and lack of independent investigatory powers, the NHRC has had limited success in holding the State and its agents accountable for acts of torture, extra-judicial killing and forced disappearances.

At present, the NHRC and SHRCs have little power to conduct meaningful investigations into allegations of abuses carried out by the State’s forces. The NHRC is not authorised to enquire into complaints of human rights violations committed by members of the armed forces, which include the army, navy, air force and a number of central armed police forces, such as the Border Security Force (BSF). This restriction to its mandate makes it impossible to address alleged abuses that are prevalent in so-called “disturbed” areas where these forces are operational. In this situation, the role of the NHRC is restricted to making recommendations to the Central Government. The Indian Government must broaden the mandate of the NHRC to include complaints made against members of the armed forces.

The NHRC must also be given independent investigate powers to examine complaints made against members of the police force, armed and security forces. At present, when investigating allegations of custodial torture or death, the NHRC often relies on the investigatory powers of the very authority it is itself investigating. This leads to a farcical situation in which in its findings are restricted to those made by the very police force it is seeking to investigate.

The NHRC must be given stronger powers to enforce its decisions. At present, in cases in which their inquiries discover human rights abuses, the NHRC and SHRCs’ can only recommend that the Government take action against the perpetrator or grant relief to the victim. If a State Government refuses to accept the commissions’ recommendations, there is no provision in the law that empowers the commissions to force the Government to implement its recommendations.

The Indian Government must remedy these serious flaws in order to empower the NHRC to carry out its mandate of holding State actors responsible for human rights violations.

Victims and witnesses of torture, extra-judicial killings and forced disappearances in Punjab have experienced great difficulties in attaining compensation and reparation for the violations committed by the police, armed and security forces in the mid 1980s to mid 1990s. The NHRC has given minimal relief to the relattives of those illegally cremated in the Punjab Mass Disappearance case. Further, it has not acknowledged how the victims died or the circumstances of their disappearances. It has also refused to look at cases outside of the three districts of Amritsar. The Indian Government must take steps to ensure that all families of the tortured and executed attain compensation in recognition of their losses.

10 End encounter killings

Incidences of encounter killings have increased over recent years. According to the National Human Rights Commission, across the country (excluding Jammu & Kashmir), 83 people died in encounters with police in 2002-2003, with 100 encounter killings in

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2003-04. According to the NHRC, fake encounters in the country have risen nearly four times to 301 in the year 2006-07. This is an unacceptable state of affairs, and those responsible should be brought to justice to signaling that encounter killings are murders committed in cold blood and will not be tolerated in a democratic society.

In all cases of encounter killings, a FIR should be registered by the police against the officers responsible for the death. A charge sheet must be filed against them, and after a fair and public hearing in which the onus is on the accused to prove that he acted in self-defence, the trial court should make a finding on whether the accused is guilty of murder or not. The Indian Government should also ensure that the CBI carries out investigations into every allegation of encounter killing.

The States and Union Territories of India must dismiss all police officers who have been convicted by the court of original jurisdiction for a criminal offence, and suspend all officials who are facing prosecution in criminal cases. Investigations into incidents of alleged encounter killing must be disposed off expediously within a specified time period. All promotions of police officers involved in alleged encounter killings must be cancelled in lieu of an independent investigation

11 Set up an independent panel to inquire into torture, extra-judicial killing and forced disappearances in Kashmir

A culture of silence surrounds the activities of the security forces in Kashmir. Given enormous powers to arrest and detain, their activities are protected from scrutiny by the authorities. Despite the formal request made to the Prime Minister in 2005 by the Association of Parents of Disappeared Persons to set up an inquiry into the disappearances of thousands of Kashmiris, no action has been taken by the Indian Government.

An independent commission whose members are fair, just and impartial must be set up to investigate the human rights atrocities – the torture, extra-judicial killings and forced disappearances that are perpetrated by the Indian armed and security forces in the region.

Annexure Testimonies of the Independent People's Tribunal

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Senior Advocate Colin Gonsalves Director, Human Rights Law Network (HLRN)

People have come here today from ten to fifteen states. They are the victims of torture, the families of the “disappeared” and of those who have been caught up in fake encounters. Thank you everybody, for coming for this programme.

Let me introduce the panel members, first. We have Shabnam Hashmi from Anhad, one of the leaders of the anti-communal movement in this country. We also have navkiran Singh, the head of Lawyers for Human rights International, Punjab. Mr. Subramanian is the former Director-General of the police in Tripura; he has just published a book on state violence and the police. Justice Malay Sengupta, a retired judge of the Kolkata High Court, is here also. Dhairyasheel Patil, former chairperson of the Bar Council of India, is also on the panel. Professor Qadri from Kashmir is a very close friend of ours and a renowned Kashmiri educationalist. His Honour, Justice C. upendra of Manipur, who has done many inquiries into encounters and torture cases, is also with us.

Sandeep Singh President of the Jawaharlal Nehru University (JNU) Students’ Union

Friends – the victims of state oppression, the victims of disappearances, and [the victims] of the unequal power structure – we will listen to all of you who have come to Jawaharlal nehru university from different states with your concerns and experiences, during these two days. In this way, we will enrich our minds, strengthen our understanding, and gain new knowledge.

We have seen how, historically, the ruling structure works in a particular way, especially in the Indian context. Year after year since Independence, the repressive regime has committed large-scale atrocities through its armed forces, whether in the northeast or in Kashmir. Alongside this, other parts of the country have witnessed similar incidents, such as the anti-Sikh riots, the Gujarat riots, and the Hashimpura riots.

If we look into these incidents, we find that the killings were planned and carried out systematically and often on behalf of political parties, as well as of the State. The legal proceedings to bring redress and to counter such acts are clearly slow and have so many loopholes and double standards that they fail to achieve their goal.

You must have heard of the Hashimpura case in which forty people were framed? According to my knowledge, only five or six witness statements have so far been taken down since this incident happened, several years ago now. We are witnessing similar incidents taking place openly in Bihar, Jharkhand, Andhra Pradesh, and Chhattisgarh. We have seen how extra-judicial killings are being committed and groups like the Salwa Judum are being formed at the behest of the state governments and others. We have also seen the ruling class of the State employing many other inhumane coercive methods.

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The narmada Bachao Andolan, which is being organized through democratic and peaceful means by tribal people, is reflecting people’s aspirations within the legal sphere, as are other movements, but recent court judgments have not been favourable towards the local inhabitants [Adivasis].

In light of these events, I am trying to understand the underlying pattern in these movements. The question before us concerns all the incidents of state repression that have taken place over the past twenty years: How are they happening?

We have seen that attempts are being made to justify state repression through the use of political slogans. These slogans are created by ruling regimes or governments in order to suppress people’s voices, demands, and concerns. The slogans have been made in the name of unity and integrity – something that was widely done in the '70s – but you know that “unity and integrity” were used to justify large-scale atrocities during that period. The slogans may also be about the “war against terrorism”, or terrorism, which is very prevalent these days. The slogans may also be about development.

Certain slogans are used to justify extra-judicial activities and as a pretext for action. We are therefore trying to understand the nature and character of such slogans, the politics behind then, and the attempts that are under way to make these slogans part of our common conscience and character. Such slogans start to make us think along their lines – that the people of the northeast want to separate from the mainland, that the people of Kashmir are terrorists. The stereotypical idea about tribals among the people of the mainland is another example of this gradual process, which we need to understand.

When talking about such issues in the judicial domain, and especially in the extra-judicial domain, we have observed that the state adopts several double standards. This was evident in the case of TADA [Terrorist and Disruptive Activities Act (1987)] and POTA [Prevention of Terrorism Act 2002], where after immense public pressure, the government repealed these draconian laws. However, the repressive clauses were inserted in another legislation, which was then framed into a law.

even in those cases where such laws were repealed, victims still suffered from their effect. The net result, therefore, was zero. People like Tarachand Mukhia of Bihar, who was imprisoned under POTA, continue to be detained. People are still facing trial under that law even though it has been repealed, meaning that the repeal means nothing.

We have witnessed such double standards recently in the case of Afzal Guru. We have seen the way in which – in the name of collective conscience, in the name of unity and integrity – Afzal Guru was sentenced to death even in the absence of any concrete evidence. The Bilkis case is also before us. All of you know about the description of the Bilkis Bano case, but it seems our judiciary is not in favour of any particular punishment.

If we talk of paradigms, we will see that different parameters are being used, which we need to understand. For this reason I feel the government does not want to implement reforms, no matter whether it be to do with the application of the law or its illegitimacy or inefficiency.


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The question of illegitimacy is linked to [our] social consciousness. As I said earlier, this has become part of our common thought process. That is why we do not feel a thing even if people are killed in Kashmir or in the northeast. Such happenings are simply not part of our daily concerns. It is imperative that we unblock our social conscience and develop a new awareness.

In my opinion, students, teachers, academicians, activists, and especially special tribunals like this have an important role to play in developing this new consciousness. The discussions we will have in this forum will help us, in my opinion, to gain new knowledge and understanding. This, in turn, will prove to be helpful in our own field of academia and activism. It will also help us to argue our views more efficiently in the future.

With this hope in mind, I would like to end my speech. I hope that this tribunal may be completed successfully, and that all of you attending it will have a good experience.

Thank you.

Colin Gonsalves

Our main emphasis is on the victims, and we are very grateful to them for being here today. A hundred victims have come. They and their families have suffered tremendously [and yet] they are present here amongst us today.

Since the emphasis is on the victims, every speaker should keep to the designated time frame.

All of you know Dr. Binayek Sen. He was a fighter for human rights; he is a fighter for human rights. He is from Chhattisgarh. He has been in police custody for the last six to eight months on terrorism charges. Ilina Sen from the People’s union for Civil Liberties in Chhattisgarh, who is Dr. Binayek Sen’s wife, will now give a short address on [the subject of] “Defend the Defenders”.

Ilina Sen PUCL, Chhattisgarh

First of all, I would like to thank the organizers for giving me the opportunity to come here and speak to you all. I would also like to register a small modification to what Colin said, that Binayek Sen was a human rights defender, and which he later corrected. I would like to say he is one,as all of us in Chhattisgarh are.

I believe emphatically that forces are defending, and continue to defend, human rights all over the country. There is no past tense, but [only] a present tense and a future tense, [because] we have to continue our battle.

I would like to briefly tell my story and to say that the issues raised in the tribunal today [are like] the situation in Chhattisgarh. There torture in police custody, executions, and disappearances

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have become so commonplace that human rights defenders are having to deal with this situation on a daily basis. These human rights violations were provoked up to a point when a certain section of so-called civil society closed its eyes and ears and stopped taking notice.

The last state convention of the Chhattisgarh PuCL in April 2007 was held just a few days before Binayek’s arrest on fake encounters, fake surrenders, and fake cases.

It is since the new state [of Chhattisgarh] was created that conditions have become so bad. And we need to understand why this situation has arisen, because the context is important.

When Chhattisgarh was created, people among us were under the illusion that the new state had been created for its people so they could have more space and a say in governance and be able to place their demands before the government. Very soon, however, we became convinced that this was not to be the case at all.

The new state was created to facilitate the movement of capital and to facilitate investment. As the policy documents of the new state began to roll out, it became more and more evident. The vision planned for our state was written not by any workers’ organisation, nor by intellectuals in Chhattisgarh, nor by any people’s organisation, but by a firm called PricewaterhouseCoopers. It is a multi-national firm, and when it wrote the state’s “vision plan”, it was evident in the document that the intention was to turn Chhattisgarh into an investor-friendly state. That’s when the people of Chhattisgarh started protesting.

The Bastar incidents have come into the open, and the state is projecting that these are areas being ruled by anti-socials and outlaws, that the place has no law and order, and that there are lawless elements running around interfering with the due process of law. But in reality, over the past seven years, there has been a conspiracy [going on there] to keep people deprived of the basic necessities of life. The funds that were intended for the development of that area have ended up in several people’s pockets.

The people of that region have been deprived of their right to life, right to livelihood, right to education, and other fundamental rights for a long time. They did not have any rights before Independence, and neither do they have any today in independent India.

There has been no development whatsoever in that place. The government puts the entire blame [for this] on the Maoists by declaring that they are active in that area and are working to destabilize it.

I think the reality is that, through their own organisations such as the Adivasi Mahasabha, which actually has an affiliation with the CPI [Communist Party of India], the people of Bastar are struggling to assert their rights to land, livelihood, and a dignified life.

The incident that has recently come to the world’s notice is the acquisition of land in Hantiguda and two other places by two very large corporations: One is Tata Steel, and the other is essar. The law has been subverted completely. These areas are governed under the Fifth Schedule of the Indian Constitution, according to which it is mandatory that any development project requires the assent of the people of that area. The project requires the consent of the gram sabha [village council (statutory)], and it is only with its consent that the project can go ahead.


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Many of you know already, and I am sorry to say it again, that the provisions of the Panchayat extension to Scheduled Areas have been undermined with total impunity. even though people refused to part with their land, a gram sabha was convened forcefully.

If you had seen the photos of the gram sabha, you would have noticed that it consisted of a stage similar to this one [the one in this auditorium], on which sat the collector and the company representative. The people for whom the sabha was organized were made to sit on the ground. The collector presented his agenda and explained to the villagers that the land acquisition was to go ahead, and the people were just supposed to give their consent. If people protested, if they did not want to give up their land, they were pressurized into doing so.

The same thing happened in Lohatipura. Land acquisition was to take place in some villages around Lohandegura, but people refused to part with their land. They were then coerced into doing so. It was presented as if people had unanimously voted for “development”. remedial measures were taken.

The elected representatives and the members of the Legislative Assembly were taken on a guided tour to Jamshedpur, where they were shown what was really meant by development. And Tata said that development was about having a beautiful township, which is what Lohatigura would be converted into. They told the elected representatives that a beautiful hospital, like the Tata Main hospital in Jamshedpur, would be built to save people having to walk 30 kilometres to get to a hospital or primary health care center, as they were currently doing. even after showing them golden dreams of development and taking them on a tour, the people refused to give in to the demands of the company. That was when the bloodshed and disturbances took place.

What is our media doing? The media – at least the Chhattisgarh media – is completely silent. And why is it silent, I shall leave it you to draw your own conclusions.

A few months ago, there was a rally of two hundred thousand people, including Adivasis who came out of jungle on foot. It was not a diesel-driven rally [i.e. not a politically motivated, motorized rally], and they participated in the rally to register their protests against the land acquisition. They said they did not want to sell the land on which their livelihoods depended. They wanted the government to guarantee their livelihoods first. And they wanted the company to discuss the issue with them. They wanted to know who had taken the decision to build the plant.

even though they made their voices felt at the rally, not a word about the rally was mentioned in any of the newspapers in Chhattisgarh. Some of the Jugalpur newspapers made a brief mention of the incident, but none of the papers from the state capital included even one line about the rally in any of their editions.

In Bhurli and Jhansi, where essar is going to acquire land for another steel plant, Section 144 was introduced because people were constantly saying no to the project. Section 144 was imposed on the village. One individual from each house was taken at gunpoint and made to put

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their thumbprint on a document saying they agreed to the land acquisition. All this was done in a tin shed where the collector and the company representative where sitting. This travesty was done in the name of the gram sabha.

People who raised their voices about the conditions of Bastar were called Maoists and accused of disturbing law and order. Being labeled a Maoist gives the police free reign to torture and murder them, because the victims will not be counted. People who try to question such behavior are silenced.

Human rights defenders like Binayek Sen and many others have been speaking out about what the government does to them. The government of the new state of Chhattisgarh – and I believe even nationally – are making decisions without consulting the people. Decisions are even being made internationally, perhaps even signed in Washington D.C. People who protest are silenced. People who raise their voices, people who protest against these events, are declared subversive. Binayek Sen was arrested on 14 May 2007 on charges of sedition and conspiracy to overthrow the State. I will not go into the details of the case, but the charges are completely flimsy.

Those of you who are interested, feel free to contact us. Sudha Bharadwaj is here from Chhattisgarh. Those of you here who are interested in the details of the case, feel free to contact us, and we will be happy to share them with you.

The reality is that he [Binayek Sen] was targeted because of his protests, because of the way that the PuCL was raising its voice about the Salwa Judum and the ultimate, enormous crime in which Adivasis were being physically displaced and transported to relief camps in the name of creating security. But actually, I think it was to clear the ground for the illegal acquisition of land.

While the Salwa Judum was being denounced by Binayek and the PuCL, the people of Bastar were undergoing the ultimate insult and ignominy. They [Adivasis] had enjoyed a certain level of freedom. Although they had very little cash, the forests were still theirs. Their lives and livelihoods depended on the forest. Their systematic exclusion from all entitlements was the ultimate ignominy.

Binayek was the first person from the PuCL to invite a national fact-finding team to Bastar to investigate the enormous tragedy that was happening in the forests of central India. It was decided at the highest level that Binayek would be silenced because our media had been silenced, and what is really happening there was not getting out. But I want to say that the voices of Chhattisgarh will not be silenced, they will continue.

I would like to stop here. Thank you very much.

Kamal Mitra ChinoyJNU Teachers’ Association

I come here to extend the support of the Jnu teachers to a very important struggle for human rights.

I just want to make a couple of points. First, the policies of globalization and this kind of so-called economic reform leads to violations of human


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rights, and this can happen irrespective of the state government in power. If even a left government follows policies of neo-liberal industrialization, then also there will be human rights violations, as we know. The human rights institutions are also very weak. So, the decisions of our very own national Human rights Commission [nHrC] are only advisory; they are not law.

Justice J. S. Verma gave a strict judgment on Gujarat in 2002, but the Central Government did not do anything about it. now, if we look into the events in Chhattisgarh, especially in the Bastar region where the Salwa Judum is happening, you will find that it is not an uprising of the people against the naxalites and Maoists, but is state-sponsored genocide against the tribal people.

More than a hundred thousand Adivasis have been forced from their lands. Part of the reason for this is so that Tata, essar, and other companies can get their land and set up their industries. This entire globalization ideology has led to the equating of development struggles – which are essentially the Maoist movements and other movements, including the Communist Party of India in Dantewada and elsewhere – with anti-national activities.

As far as our Prime Minister, Dr. Manmohan Singh – who is considered to be quite well-read and highly educated – is concerned, Maoists are a “virus”. So, this is how the ruling classes in India think about human rights. And remember these human rights are not only violated in areas that are on the borders of the country or in places like central India, which are not taken into account by the media.

Please remember the extensive human rights violations in Punjab during the Khalistan movement about two decades ago. How many thousands of people were tortured and killed? There were false encounters, extra-judicial encounters, and disappearances. It has been proven in the Supreme Court that the number of people cremated was larger than the number of people officially declared dead in the Punjab, and this is nothing new.

Independent India started with human rights abuses, with the assault on the people of the northeast, especially the nagas, and they were bombed from the air by fighter aircraft. This was during the time of Jawaharlal nehru, which was supposed to be the most democratic period in Indian history.

now we have an nHrC that cannot on its own investigate the army and paramilitary forces. The human rights institutions of our country cannot investigate the human rights violations committed by the army, the Central reserve Police Force, or the Indo-Tibetan Border Police, etc. That is why tribunals like these are very important. That is why the struggle for symbols of human rights like Binayek Sen is crucial, as is the talk of judicial activism in these cases.

The Supreme Court acted almost with disdain, if not rejection, of the fact that Dr. Binayek Sen is a leader of the People’s union for Civil Liberties. “How does it matter, he is accused of being a terrorist, there is prima facie evidence, so we will not release him. We will not give him bail”.

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So, basically, the activities even of the courts are now not for pro-people economic development and not for defending human rights. now, since the principles of human rights are in the fundamental rights of our Constitution and more so in our directive principles – and also since India has signed international human rights treaties, both international covenants and the universal Declaration of Human rights – it is our duty as Indians and citizens of the world to oppose torture, executions, and disappearances.

On behalf of the teachers of Jawaharlal nehru university, I can tell you that we were, and continue to be, involved in your struggle in defense of human rights. In the past we have fought for human rights. we went to raipur in support of Dr. Binayek Sen. You have our support. Whatever we can do as Jnu teachers, we will do. Human rights, for us, is one of the most sacred of causes, and you can bank on our support even without asking for it.

Thank you.

Colin Gonsalves

Thank you, Kamal, for your support and for those inspiring words. now we have, from West Bengal, Anuradha Talwar, who has fought the Tatas and the government of West Bengal on nandigram.

Anuradha Talwar Paschim Bengal Khet Mazdoor Samiti, West Bengal

Thank you, Colin. Thank you, everybody, for inviting me.

It is mentioned in the programme that I have to speak on torture, but I will not only speak on torture; I will speak on the entire crisis in nandigram, as well, because I feel that the three topics mentioned here – i.e., tortures, executions, and disappearances – all three of these violations have occurred

in nandigram. I feel that the significance about nandigram is that the recent events in the area, in Singur as well as the killings of five Forward Bloc workers in Dinhata in police firing, is that it is clear that the party in power in West Bengal and the administration are closely linked. The main feature in West Bengal is that the line between the party, the CPI[M] [Communist Party of India [Maoist]], and the administration in West Bengal has been blurred totally.

I think in nandigram, as much as Singur, as much as what has happened in Dinhata and what is happening in many places where struggles between people and the government and the party are taking place, repression is taking place. nandigram, I think, is the most apparent example of this, but the others are also very clear examples of the fact that we have a party in power that has totally lost touch with the people. They have lost touch with the people and have failed to understand the cause of the resistance of the people to the extent that they do not want to listen to what the people have to say. Instead of listening to the people, they are using the police; they are using their own power to suppress me. This is basically what nandigram stands for, and whatever is happening in West Bengal – this is what it stands for.


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The dispute in nandigram is not about one or two small villages, but affects nearly 1.5 lakhpeople, because 25 to 30 villages were involved in this problem. The land, which was forcefully being acquired, was resisted by people from 25 to 30 villages, and nearly 1.25 to 1.5 lakhpeople were involved in the struggle. The time period is also not short. If we observe, we will find that the incidents of violence have been happening between January and november of this year. But we will observe that the whole problem started in September 2006, and the problem still persists today. Because of the problem, the affected people have not been able to come to this seminar to put forward their perspective.

The problem started when the area was declared a SeZ [Special economic Zone]. From September 2006, people started organizing themselves. They received the notice from the local MP [Member of Parliament], Mr. Laxman Seth, who was a member of the Haldia Development Authority, in a meeting held on 28 november in nandigram. His own party members – i.e., the local party leadership of CPI[M] – literally cried while requesting them not to go ahead with the land acquisition plan.

Mr. Seth replied that acquisition is inevitable. Later, on 3 December, people came to know about the notice. They gathered at a panchayat called Gaurchakraberiya. The first incident happened on 3 January, where at a Gaurchakraberiya panchayat, people assembled to discuss whether their lands will be taken. The panchayat chief called the police, and the police fired 15 rounds of ammunition in which 15 people were injured. So, the violent phase of the struggle at nandigram starts from 3 January. This was the first incident where the police was called [the panchayata called the police]. no negotiation was done with the people regarding their demands, their reason for opposition; nothing was thought of before calling in the police.

A similar sort of incident happened when the roads were cut off, and the area was cut off from the rest of the state because they had learnt from the Singur experience. That was their main learning. Whereas in Singur, a peaceful movement – where people had demonstrated in all kinds of ways, whether it had been fasting, whether it had been protests of all kinds – had been totally suppressed after land was acquired.

It seemed people had no way to get out. So, the people of nandigram decided to cut themselves out from the rest of West Bengal, which is a tactic that has been used in the independence movement also. They decided to isolate themselves and protect their own land. On the 6th, a team comprised of people like Colin Gonsalves, sitting here, and Sumit Sarkar, myself, and others, went to a place called Bhangabera, where the police camp was situated. You had to cross the bridge to reach that place. We were told that on the night of 6th, the police left the place and party cadres entered the camp.

On the morning of the 7th, attacks were launched from the house of a certain Shankar Samant – firing started from his house. When the people heard of the firing, they gathered around the house; the unarmed bystanders were fired upon. As a result, three people died on spot. People reacted to the event by mob-lynching Mr. Shankar Samant. The mob killed him because the firing was done from his residence. This was another incident where the police left and the cadres entered the scene. These incidents kept on happening in January, February, and March, where outsiders were trying to enter the isolated area but could not succeed.

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According to newspaper reports, on 9 March, at the guesthouse of the Golaghat Thermal project, the Inspector-General of the Midnapore police, the local SP [Superintendent of Police], and the local district leaders of CPI(M) had a meeting and decided that it was time. nandigram was invaded, and on the eve of the invasion, we got phone calls at Kolkata from the agitating people that police are being amassed at the borders and a massive attack will be launched on them very soon. But we could not do anything at that moment. We thought that we would file a case in court on the 14th to stop the invasion planned by the police. But by that time, the incident had already happened.

On the 14th – when the people organized their resistance by doing puja and, at certain places, by reading the namaz, because they thought that peaceful resistance would stop the police from coming in – the police as well as the CPI(M) cadres attacked. This was very clear after that, though it has been concealed in many ways and a lot of media hype happened over it. Lot of lies have been told by people in power. It is very clear today, after the CBI [Central Bureau of Investigation] report has come up, that on 14 March the attack was done by police as well as cadres; the CPI(M) cadres and the police were combined in an attack.

If I give you the figures, it will also show you the extent to which outside involvement was there. According to the reports submitted by the CBI and the High Court, 37 rounds of firing took place there. But if you look at figures, there is a survey that has been done by our union along with many other people, where 40 per cent of the people are covered. About 2754 households were covered in thirteen mauzas, i.e., 40 per cent of the affected population. There, we found, if I give you the number of bullet injuries, 89 bullet injuries, 37 rubber bullet injuries, and 120 hits with a baton. Twenty-six people with teargas shells right on their bodies. Bomb injuries were two. On atrocities on women: 274 women were physically tortured, 46 had their modesty violated, sexual torture on 70 people, rape on eleven people. Fourteen people died, and four people were missing. Similarly, the court figures were given with 182 people injured, three rapes, 26 missing, and 14 dead. So the figures are much beyond police firing. So, it is very clear that other people were also involved in this.

Then, we have this third phase after this whole March when it was very difficult for any kind of justice to be given to the people, and the court case went on and on and on without any results coming out. The CBI inquiry remained stalled again and again and again, after which we had another invasion, which was an invasion by the party of armed groups of the party people, with the police sitting back in the Thaana. This invasion took place from 25 October to 12 november, and the police have been on record to say, “We have been given orders not to move out of the thana [police station] premises”.

So, we have a history of people, a repeated history from every village, where people are saying that in the morning, they had these armed groups of 50 to 100, 200, 500 people coming in CPI(M) cadres with guns, with bombs. These were not all CPI(M) cadres, but also basically goondas [hooligans, street thugs] armed by the party and brought in. They looted houses; house after house has been looted, especially houses of BuPC members. Bhumi ucched Pratirodh is the committee in that area – their houses had been targeted and looted.

People had been prevented from going into that area; we ourselves have an experience where we were not allowed to enter the area. It was cordoned off again in november; nobody was allowed in. even the CrPC was not allowed in until 12 november, by when this operation was


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finished. So, here also, we have this huge number of loots, rapes, burning of houses, people going missing.

After that, the CBI enquiry has just started. We have had mass graves being discovered there, and we have had stories of people missing. We do not even know the extent of the damages caused in november.

I would just like to finish by saying what is happening right now. People from nandigram were supposed to come to the IPT [Independent People’s Tribunal], so we tried to bring them. The reason for their not coming to the IPT was that, even now at this moment, cases lodged against these people have not been removed, so each individual in the leadership of the movement is charged with 20 to 25 cases. The wounded people who were picked from hospitals and thrown in jails are still languishing there. Cases have been lodged by the police against another 1500 people. Hence, whoever had raised his voice in the movement, however small his part was in the movement, has a case filed against him. Furthermore, the day before yesterday 280 people applied for bail in Haldia High court. Yesterday, 500 people applied for bail.

Anybody suspected of taking part in the movement has a case registered against him or her, but those people who took part in these rapes and executions are walking scot-free. It is the innocent people who are being arrested and harassed, and until now there is no peace or independence prevailing in the area. The police atrocities have not ceased. People are still being threatened and scared. It is a fallacy to say that the situation in nandigram is normal now.

Thank you.

Colin GonsalvesThank you, Anuradha.

We are happy to welcome Advocate P. A. Sebastian, an advocate from Maharashtra, to the panel. Thank you for coming, Sebastian. He is the head of the Committee for Protection of Democratic rights in Maharashtra and for decades has been handling encounter cases and torture cases in the High Court of Bombay.

We are also happy to welcome Vrinda Grover, prominent criminal lawyer from Delhi. She is very active with the movements and has handled many of the criminal cases for movements in the northern areas. Thank you, both of you, for coming.

And now we have, from Chhattisgarh, Sudha Bharadwaj. Sudha is an advocate practicing in Chhattisgarh.

Advocate Sudha Bharadwaj

PUCL, ChhattisgarhFriends, on behalf of PuCL Chhattisgarh, I have taken part in this tribunal. This tribunal has been organized on tortures, disappearances, and executions. Many people present here are victims of the above-mentioned crimes. I want to talk on a particular situation developing in Chhattisgarh in brief. When these incidents happened – i.e., tortures, executions, disappearances – the context in which they happened was important.

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We are at the storm centre of the context. Chhattisgarh, Orissa and Jharkhand: These three states are the medial states of this country, and they are extremely rich in resources like iron, ore, limestone, bauxite, uranium, and diamond. At the moment, there is a huge effort of corporate groups to loot in that area, which is not only by foreign companies, but also by foreign and Indian large companies. At any cost they want to acquire these lands; at any cost they want to mine here.

There is only one small problem there: that very poor Adivasi people are sitting on these lands. Therefore, they must be removed at all costs. We will observe similar conditions in several other places, like Chhattisgarh, Jharkhand and Orissa, and with this goal, the means adopted by the government, like incidents of forced land acquisition, as told by Mrs. Ilina Sen. These incidents have turned several places into fields of killing and warfare. The foremost example is the Bastar district of Chhattisgarh. The activities of the Salwa Judum in Bastar started from June 2005. This was the time when the outfit was launched. June 2005 was also the time when MOus [Memoranda of understanding] were signed. This region is an area that is supposed to be rich in diamond and uranium, and apart from these, it is rich in iron ore, coal, and limestone. In this area, the ground-clearing operation that is going on is of such a scale.

Just now, Anuradhaji described the situation in nandigram. Singur we also know about, Kalingnagar and so on. These are matters of 25, 30, 50, 10, or 15 villages, but in the case of Bastar, it is the case of 644 villages. The area that has been cleared out was an area of 644 villages. Three-and-a-half lakh population is involved here. If you look at the very modus operandi of the Salwa Judum, very rightly Kamal Chinoyji has said that it is not any spontaneous uprising against Maoists; it is a state-sponsored system in which people are actually being forced to come into camps. They are told that: If you are not coming into the camps, then that means you are naxalite supporters, so therefore you are the enemy. Basically, people are being told to make a choice: either you come to the camps or go to the jungles. now, 350,000 people are affected here. The Government of Chhattisgarh claims that above 50,000 people are in the camps; let us take their word for it. Actually, many people have run away from those camps.

Many teams have gone there, including various human rights teams, Mr. Sebastian is here. The International Association of People’s Lawyers’ team has also gone there. Various teams have gone there and seen the situation there in those camps. It is a kind of confinement, a prison, and many people are opting out of that kind of arrangement.

But let us say those 50,000 people are living in those camps. The Human rights Forum and other human rights organisations in Andhra Pradesh have reported that 50,000 people have opted out of Dantewada and adjoining areas. Count another 50,000 in, and you still have 1.5 lakh. Where are the other 2 lakh people? Those 2 lakh people, you have forced into camps.

And, basically, it is now really a situation where 644 villages are affected, where the Salwa Judum goes there and picks up people and asks them to go to the camp. They destroy their houses; they destroy their fields, whatever little livelihood, whatever little Adivasi people have. Their cattle, their hens, their goats – everything is finished off. Basically, the option of living


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on their land has been closed for the Adivasis. In such a situation, now it really has become almost a liberation struggle for them. How do they defend their fields and their villages? unfortunately, if the entire purpose of the Chhattisgarh government was to suppress naxalites or to do away with or exterminate naxalites, then absolutely the opposite has happened. now you have forced people to take sides, and, unfortunately, a larger proportion has chosen not to be on your side. This is the situation now, and it has become a war-like kind of situation. The DGP [Director General of Police] of Chhattisgarh tells us that there are now twelve battalions of CrPF [Central reserve Police Force] and IrP [Indian reserve Police] in Chhattisgarh, and they want to make it 70.

So, here you see the Chhattisgarh situation. Our friends from nagaland and Kashmir are here; they have experienced decades of the process of militarization and know what it means. We in Chhattisgarh are poised on that level. They are not saying that the military is coming; in fact, they are denying that the army is going to come there. Already, this is the process. now the area is under occupation, and people are actually resisting the occupation. For example, I’m giving you an incident close to the Dormapal Salwa Judum camp. Soldiers from the naga battalion had an altercation with the shopkeepers. It was a matter of 30 to 35 rupees. They took away the shopkeeper, shot him in the head, and threw him on the road. The shopkeepers of Dormapar, they are not Maoists. If anything, they would be against Maoists. They are against the naga battalion and asking them to go back.

The Mizo battalion has so many cases of molestation and rape against them. In a particular village called nakulnagar, there was a case of rape like this. Villagers caught hold of these Mizo jawans and took them to the local thana [police station]. The local SHO [Station House Officer] was an Adivasi person. He wrote the FIr. When he did that, they brought the other jawans and beat up the local police. There was a huge demonstration by the local people [chakkajam] demanding withdrawal of the Mizo battalion from the state.

The human rights movement in nagaland and the people’s movements, the women’s movements in nagaland, played a very important part in this matter in highlighting the types of atrocities committed by the naga battalion. It is their leadership, particularly of the naga Mother’s Association, in calling back the naga battalion from Bastar, which really shows the power your human rights movement can have if it has solidarity, if we are able to understand each other. The naga people having suffered at the hands of the army, so they raised the demand that they do not want the naga battalion at Bastar. Therefore, the naga battalion was withdrawn from Bastar. But it is very clear that this is a very serious situation.

In the case of Salwa Judum, there are two petitions lying in the Supreme Court. Those petitions in the Supreme Court lay out 538 unaccounted deaths [murders that are not accounted for anymore, i.e., there are no FIrs lodged against them] and about 95 rape cases. These are given with names of persons and their villages and locations; 3000 houses that have been burnt down, so many villages affected, etc.

The Chhattisgarh government, after months of these petitions filed in the Supreme Court, have not yet bothered to reply to these petitions. And this is in addition to, of course, [the fact that]

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every killing by naxalites would definitely come out in the papers, if we noted. But these killings by the Salwa Judum – by the paramilitary – we do not know about. So, the situation is serious.

It is not only confined to Bastar. I would say that the corporate lot is happening in other places also, like northern Chhattisgarh. There we have a situation where bauxite and coal are very much there. The companies are there, and in this area there have also been a large number of cases of fake encounters and disappearances. The tragedy is when these cases are brought to light. For example, we have some lawyers working for this, such as Amarnath Pandey, affiliated with the CPI; he is a lawyer in Ambikapur. He has been filing a number of cases, and he has highlighted, for example, a case from Lakdakuna, where recently FIrs have been filed against eight policemen under Section 302 for fake encounter killing of villagers. He had filed a large number of petitions in the High Court.

The case of one woman called Leda is representative of this. Leda was a person who persuaded her husband, who had earlier been a naxalite, to surrender before the police. Before her eyes he was shot dead in cold blood, and when she protested, she was gang-raped and kept in the thaana for seven days. Her case had been brought before the High Court. The High Court delayed and dallied over it for such a long time that the woman was forced under so much pressure to take back that case. The beauty of it was that she had made a case against the Superintendent of Balrampur, Mr. Kalluri. Those of you who have gone on that rozgar Yatra [Livelihood March] to Sarguza will remember that the same Mr. Kalluri had manhandled Mr. John Dreze.

People like Armanath Pandey who are facing false cases are facing all kinds of harassment: Dr. Binayek Sen, whom we have already talked about. Because, actually, it is not possible in the state of Chhattisgarh to raise your voice against Salwa Judum, against fake encounters, against executions, because the moment you do that, you are perceived as “if you are not with us, you are with them.” You’re in some way legitimizing Maoists, legitimizing naxalites, and therefore you are a threat.

This has been brought, you know, by passing of the Chhattisgarh Special Public Safety Act. That has actually made this kind of harassment legal, because there unlawful activity has become so wide; preaching disobedience to any institution brought in by law – this is what is included in “unlawful activity”. It has nothing to do with violence, nothing to do with anything else. Any kind of civil disobedience movement also comes under this definition. Therefore, all of us – whether it is Amarnath Pandey, who has been filing cases; Dr. Binayek Sen; whether it is Subhash Mohapatra, who has been filing cases under the SHrC and also has cases against him; Gandhians like Himanshu Kumar also has cases against him; whether it is activists of the environmental movement, like Jayant Bohidal who has been protesting against pollution of Jindal; whether it is trade-union activists – everybody is under threat there. none of us are free to raise our voices.

Therefore, we would like very much that this situation of ours – the scale of forcible displacement, the scale of judicial killings going on in Chhattisgarh – should be raised all over


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the country, and it is your solidarity that we would bank on very much to develop the human rights movement.

Thank you.

Colin Gonsalves

Dr. S. D. Singh from the Torture Prevention Centre and member of the panel has also joined us. Thank you very much, Mr. Singh.

now comes the second part of the programme: the testimonies of the victims. We will hear the testimonies of some victims, then later we will take the expert testimony of Dr. n. Venuh, the General Secretary from the naga People’s Movement for Human rights. And then we will take the expert testimony of Parveena from the APDP [Association for the Parents of Disappeared Persons] Kashmir.

Khumukchan Rocky Singh Dhopa district, Manipur

I, Khumukcham rocky Singh – son of Sanatomba Singh, resident of umathel Makha Leikai – am presently running a grocery shop at the gate of my residence at umathel Makha Leikai for livelihood. I am married and have two sons. I read up to Class x at the Kakching Khunou Government High School. I am also running a video parlour at the out-house owned by one Mayanglambam raghumani Singh, aged about 38 years, which I rent from him. It is about 20 metres away from my house.

On 30 September 2007, at about 9.30 p.m., when I was operating the video machine in my video parlour, where about 20 people were watching, I heard the sound of rapid firing very close to our location on the northern side. Immediately, I along with the 20 others laid on the floor inside the video parlour in order to protect ourselves from stray bullets. When there was a lull for a few moments, all of us ran out of the video parlour to our respective houses. When I reached home, I found my maternal uncle Mayanglambam Kunjo Singh, aged about 32 years, at my house. I heard the firing continuing for about half an hour. All of my family members, including my uncle, lay on the ground to protect ourselves from stray bullets.

Within a short while, I heard the sound of breaking doors and a hue and a cry being made in neighbouring houses. I suspected that the Assam rifles personnel must have come there to conduct an operation. Within minutes, some persons suspected to be jawans of Assam rifles had started breaking our door and calling the male members of the family to come out. My mother immediately responded by opening the door. My uncle, Kunjo Singh, and myself went out.

As soon as we stepped outside, the Assam rifles jawans started beating and assailing both of us with lathis, rifle butts and fists. We were taken out by two or three jawans of Assam rifles along the road, where about 30 to 40 other jawans of Assam rifles were taking position. All of them started beating and torturing us on the road. While beating us, the Assam rifles personnel asked us who was responsible for laying ambush to the Assam rifles that night.

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When we replied that we didn’t know, they started beating and assaulting us, torturing us like animals. Since neither of us could stand properly as a result of the torture, we fell on the ground. After forcing us to sit on the road in the cold winter night for two to three hours, we were let off by the Assam rifles personnel at around 12:30 a.m. and allowed to return to our houses.

When we reached our gate, we could not proceed further due to severe pain in our bodies, and we fell on the ground. My mother and wife ran out from the house and picked us both up.

The next morning, on 1 October 2007, at about 8 a.m., one jawan of Assam rifles in camouflage combat uniform came to my house and called out all the male members. I refused to go out, since I was bed-ridden due to the injury sustained the previous night. Immediately, the jawan left without any reaction. The same morning at about 11a.m., along with my uncle, I went to a local doctor – Dr. Samananda Singh of Kakching Khunou – for medical treatment. The said doctor referred both of us to the rIMS hospital at Imphal for further medical treatment and examination. After getting treatment at the rIMS hospital, both of us returned home the next day. We were bed-ridden at home for about ten days for medical treatment for the injuries sustained by us due to torture by Assam rifles personnel.

Shikha RahiUttarakhand

My friends, I am Shikha rahi. I want to talk to you about a certain case in uttarakhand. The victim’s name is Prashant rahi, who is also my father. He has been working in uttarakhand as a journalist; he has also been a correspondent of the Delhi newspaper, The Statesman, and he was also a freelancer. He also worked with the political movements happening in the region for the rights of the common people.

On 17 December 2007, he was picked up from a street in Dehradun. It was a deserted place where he was walking, and suddenly some men sprang on him from a car, thrashed him, and afterwards brought him inside the car, blindfolded him, and took him to a jungle where he was subjected to beatings and threatened.

On the evening of 18 December he was blindfolded again and taken to Haridwar. After reaching there, his blindfold was untied so he could read a sign that said Haridwar. Some conference was going on; the area was quite posh. There, he was tortured again physically, as well as mentally. He was threatened that kerosene would pumped up his anus and that he would be tied to slabs of ice. They even threatened him by saying that they would bring me from Mumbai and make him rape me in front of everybody, and things like that. For about five days, he was tortured in a similar fashion.

On 20 December, he was brought to a police station at nanakmatta, udhampur. It took my dad two days to recover. He was a bit disoriented after all the beatings and other physical torture that took place, so it took him two days to come back to normal. On 22 December, the arrest records were made. And on 22 December, I was informed by phone that my dad had been


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arrested. I work and stay in Mumbai. I had a conversation with him. He told me that he was at udhampur, and I would have to go there and meet up with him. So I went there, and on 24December, I read in the newspapers that the zonal commander of CPI [Maoist], Mr. Prashant rahi, had been arrested. It said in the newspapers that he had been arrested in the forests of Hanspur Khattar, where he was found sitting with four or five people on the banks of the river. It was reported that the others escaped, but only he was caught.

notwithstanding the strangeness of the story, I met my father, who told me what really happened. On 17 December, he was arrested from Dehradun, and after he was tortured for five days, his arrest was noted in official records.

If people from uttarakhand are present in this seminar, they would know that, apart from journalism, he has been active in every sort of procession and movement regarding human rights, whether it was the uttarakhand movement or the Tehri Dam movement regarding displacement of people. In fact, he also got the memorials of the uttarakhand built. He had always tried to spread awareness among the people of uttarakhand. So, a person like my father was pressed with charges by the police similar to the charges pressed on Dr. Binayek Sen, such as waging war against the state, sedition, conspiracy, etc., and actually there is no evidence against him.

According to the police, they recovered a laptop from his place that contained certain information that surprised the investigating agencies. Although when my dad was caught, at that time he did not have any laptop on him; in fact, he did not own a laptop. Just imagine if he was really a CPI [Maoist] zonal commander: Would he be really sitting with four or five men who all managed to escape except for the zonal commander, who is caught without any weapons? It is rather odd.

After I came there, I studied the case and read some newspaper clippings, where I found it was all a game, you know. Actually, it was very well-planned by the police. If you see from 1 December onwards, there was a meeting of all the Chief Ministers about security purposes and all. Our Chief Minister demanded 208 crores for security reasons, because according to him, since uttarakhand shares borders with nepal and there is the risk of a Maoist insurgency in nepal, to deal with this threat, modernization and upgrading the police is required; for this purpose, money is required. For this reason, news appears in certain newspapers that a suspected terrorist has been found in Kumaon. On 24 December, the news of my father, Prashant rahi’s, arrest comes out, and it is also written that this incident proves that there are suspected Maoists in our area, as well, and for this reason Mr. Khanduri has demanded x rupees from the government.

You understand what I’m saying? When I say that this is the way the police is trying to portray the case, it is not as simple as that. What is happening is that not only is an innocent man being defamed in the eyes of the people by labeling him as Maoist, then he is tortured to ensure that he is not able to do anything again, because the moment people see him they get scared because of the person’s alleged Maoist links and think as if some demon is approaching them.

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even when he appeared in the courts, people used to gather around to see him as if some demon with two horns has come to the court, and it is all really very weird. I mean, he is a well-educated man. He had done his M.Tech from Benares Hindu university, but he always really wanted to work for the people, so he took up journalism as a career so that he could write for the people. During that phase, when he started writing in uttarakhand, the uttarakhand statehood movement started. He got involved in the movement and started working for the people of uttarakhand, but perhaps they did not like this, so they decided to label him a Maoist, which was quite easy for them. This would also help them get funds from the central government, so I think it was a lottery for them. But this was not good news for a person who is working for other people’s rights. I wish that by interacting with all of you from this platform, I hope it helps my father.

Thank you.

RaviTrivalu district, Tamil Nadu

On 1 March 2007, I was called to the police station by sub-inspector Tamilchelvi for an enquiry. Once there, the police started hitting me. They spread out my arms, kept them behind me, and started hitting me on the back. My hands and legs were tied. I was made to sit, and a policeman started beating me with a stick.

I was taken to Chennai, where I was made to eat food rubbed with salt and soil by Inspector Thangavenu. I was made to drink liquor. After that, I was hit on my throat. Then my legs were spread apart, and they started hitting me. Blood started oozing from my anus.

I was taken back again from Chennai. Once we were inside the police station, my hands were tied. My legs were spread apart and they stared stuffing my anus with chili powder. I was tortured like this for six days, and I could not bear it.

I was taken to a private hospital, where I was given some medication. I was then produced before a magistrate. I was taken to the jail, but the jail superintendent would not permit me to go inside and ordered the police to get the doctor’s permission.

I was taken to the hospital attached to the jail. The doctor there said there was no use in keeping me there and referred me to the hospital in town. That hospital transferred me again, and from there I was transferred to a hospital in Chennai. I was given treatment there and then went home.

Because of the torture, I cannot hear now; I have become deaf. I used to be very strong. I was 55 kilos before, but I’m hardly 30 kilos now. I used to do lots of work, but I can’t do anything now. I have two children, but I feel very bad for them, because I cannot do anything for them; I cannot do any work.

Thank you.


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Malti Tudu Girdih district, Jharkhand

I went to the jungle…… three policemen….one police caught me then released me……..the police raped me.

Ramdev Vishwabandhu accompanying Malti Tudu

As you can see, this is Malti. The FIr referred to her as Malti Kumari, which was an attempt to blot out her identity. Her real name is Malti Tudu, and she is ten years old. She is a third-grade student at school in her village. Chudti Tudu is her mother.

On the fateful day, she along with two or three friends went to the nearby jungle to collect firewood; her people live near dense jungles. Her village is very far, almost 17 or 18 kilometres to the west of the district headquarters. We had difficulty finding their village. The police roam near the woods on the pretext of catching Maoists and naxalites. The companions of Malti were Basanti, Chumki, and her brother, Bablu. One of the policemen slapped Bablu and told him to shut up. Then Malti was caught and she was lifted and pushed in a pit, where she was raped. After doing the heinous act, the policemen went off.

The children went off to their village and creating hue and cry. She remained in the woods unconscious. After shouts and noises made by the other children, the villagers came inside the woods and found Malti sitting there and crying. Her mother asked her about her condition, and she told her about the entire incident. When the villagers came to know about it, they were outraged. “What have the police done?”

After hearing about the incident, all the people in the village – especially the women, because very few men live in the village – marched towards the police station. They gathered near the police station, encircled the policemen, started shouting and verbally abusing them, and stopped short of hitting them. They asked them how they could do this and whether this was what they came here to do. “This is why you come here: to rape small girls.” The policemen asked them to keep quiet and get the girl treated. The villagers replied that they would not keep quiet. They would get the girl treated, but they would raise this issue and inform the authorities. Then the police gave them 500 rupees and ran away.

In the evening, they took her to the local government hospital to get her treated. The doctor refused to get the girl admitted. Some political activists got to hear about the incident. The police station also got to hear of this incident. Only then did the girl get admitted to the hospital. Then the policemen took the girl’s statement.

This incident happened on 24 January 2008, two days before republic Day. If the villagers had treated the matter lightly, then the police would never have taken any measure. The next day, on 25 January, 600 to 700 Adivasis from six or seven neighbouring villages, gathered around the district headquarters and protested against this incident. Only then some progress happened; otherwise this incident would have remained unnoticed.

Thank you.

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Witness X from Andhra Pradesh1

Vellore district, Andhra Pradesh

My sister-in-law is affiliated with the Janasakti Party, which is now affiliated with the Maoists. She joined the Janasakti party a long time ago. My sister-in-law’s mother visited my house, and from that day the police have been hunting for me.

The head of the Mustafabad police called me and asked me about the whereabouts of my sister-in-law. I told him that I do not know. I went to my field; there, one of the constables came to pick me up and questioned me about the whereabouts of my sister-in-law. I told him that I did not know.

He took me to a Jeep where there were four police constables; they put me inside. They took me to Mustafabad police station. On the way, they asked me to get out, and they questioned me again about the whereabouts of my sister-in-law. I told them I knew nothing. They asked me if I knew what would happen if they decided to take action against me: Did I know the consequences if I wasn’t telling the truth?

Then, they asked me to run away and asked if I knew would happen if I tried to do so. I told them I wouldn’t run away and that I didn’t know the whereabouts of my sister-in-law. I also said I knew what would happen if I were to run away. I told them that my cousins were nearby at Dobhaga and asked if they could leave me there. They said if you do not run away now, we will kill you. They put me back in the Jeep and drove to Mustafabad police station. It was 8 p.m.

The next day, there was a festival. All the police constables arrived at the police station completely drunk. As soon as they arrived, they called me and asked me about the whereabouts of my sister-in-law. They also asked: “Do you know about the Janasakti party? Are you a member of the Janasakti party? Do you know about any of their activities?” They asked me if my sister-in-law, Yashoda, had come to me, saying, “Has she frequently been to your house? We have information from your villagers and some of your colleagues. Please tell the truth, and we will be on your side. Otherwise, we will torture you and do anything we want with you”.

Then, they started torturing me until 11p.m. They beat me all over my body. They started beating me mercilessly with lathis. Six police constables arrived and asked me to sit on the floor. When I refused to sit down, they caught hold of me and then forcefully made me sit on the floor. Two constables took hold of my legs and pulled them apart, and two others sat beside me pressing on my thighs. The other two constables supported my body so that I could not move. Two of them stood on my thighs so that I could not move any part of my body, and they started beating me on my legs and all over. I was tortured like this for three days. On the fourth day it happened again.

1 The victim has requested anonymity for security reasons


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My parents had come to see me, and my cousins, too, but they were not allowed into the station. The District Member of the Legislative Assembly [MLA] telephoned the Sub-Inspector, but he refused to help, saying, that the MLA could not do anything to him, that he didn’t care, and that he was not bothered about his words. He told the MLA that he was going to do whatever he liked. He added: “You know what we’ll do to you if we want.”

They said to me: “We can do anything, so keep this in mind and behave, and tell the whereabouts of your sister-in-law.” The sarpanch [village head] came and was presented to the police, who told him to advise me to give the whereabouts of my sister-in-law. Then he sent the sarpanch back to his home.

From there, the sarpanch talked to the MLA, and the MLA again phoned the SI, who assured him that I would no longer be tortured and that nothing would be done. He was not to worry, because this was something that had happened after my release.

In the police station I had been tortured in many different ways, and when I left I was asked not to tell anybody. I was let out of the police station with sureties and agreeing to be present at the police station whenever they wanted me there.

I am very much afraid that now that I have come here, if they know about this, I will be taken away again by the police and tortured. I fear that I’m here, and I am afraid that as soon as I go back, I’ll be taken by the police.

Thank you.

Dr. N. Venuh General Secretary of the Naga People’s Movement for Human Rights

At the outset, on behalf of the naga People’s Movement for Human rights, I extend solidarity to all the people on the Indian subcontinent. We’ve suffered from various forms of human rights violations.

To talk about 60 years of the nagas in ten minutes is not enough. even if I talk for one year, I cannot describe it to you. You know how human rights violations take place in nagaland. The topic is extra-judicial executions, but it includes all types of human rights violations that have taken place in our homeland.

The day India got independence, the violations started in naga areas. The first killing was a person who was burnt alive: a pastor in a mission compound. That was following the imposition of the Armed Forces Special Powers Act [AFSPA]. The AFSPA was imposed in naga areas for the first time in 1958, which – if you remember – was when India was struggling to develop its independence. In 1919, when the British imposed the rowlatt Act, the whole of India was against it. The AFSPA was just a replica of that act, which was imposed in our homeland.

From then onward, our men are tortured. I cannot specify how they were tortured; it was in different forms. Women were molested and raped. Villages were burned – whole villages were burned. not one single naga village escaped.

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My mother told me that when our village was burned, she was carrying me. I was in her womb, and she had to run away. She had to run to the jungle, and all the youngsters of my generation faced the same thing. Like many others, I was born in the jungle, in a small hut or in caves – that was the situation.

Take one village: Yenli, in Wakha district. Four girls were taken to the church and raped there in a holy place. Can you believe it? This is the Indian police: They pose themselves as the champions of human rights and allow their forces to rape women inside a church. I think we have to open our eyes today. All of India, especially the people who fight for people’s democratic rights, need to know about that. In one village, 50 women were molested and raped in one day.

You can just imagine what the armed forces are doing in our naga homeland. “If you go to nagaland, you will see that in a gate at the air force, it is written, “friends of hill people”. If they are friends of hill people, why do they kill and torture people just on mere suspicion? These are innocent people. They don’t manage to kill people who carry guns, but they come and take revenge on the innocent ones. If anything happens, they call all the village people and, you know, they are tortured. The women are put in another group and are molested and raped. I don’t feel like speaking about how our women are raped, how after raping the perpetrators put the bayonets in the women’s private parts. The authorities are aware of all these things, but they try to hide them, and the mainland doesn’t know what is happening in our homeland. nagas want peace.

In 1997, the ceasefire came. now, under the ceasefire, we are having mental torture. Why am I saying mental torture? under this ceasefire the army started building more camps in strategic points. During these eleven years of the ceasefire, people are being mentally tortured. They are scared about what will happen because they are building so many camps.

It is the government’s policy to torture people, and they say to the outside world “we are the champions of human rights”. Then your government talks about that. But today back home, what is going on? How many people are suffering? Look at all these stories we have heard here.

But they go to the [united nations] Human rights Council, and they say that they are the biggest champion of human rights.

Today, we need peace. nagas want to live as human beings, but if they go on imposing what they are doing now, we will have to defend our rights for as long as we are alive.

Today, I think we need to support each other and come out together to strive and bring about peace. It is illegal what the armies do. They are allowed to develop playgrounds or construct the roads, etc.; the army cannot do this. They are constructing things in remote villages so that they can land their choppers there, so that when the ceasefire breaks, they can land their troops in the villages and they can come with vehicles. now, they are asking the villagers – forcing them – to clear the roads and the jungle, 20 feet up and 20 feet down.


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It is imperative that we support each other so that we can find a solution that will bring peace and can help each other.

Thank you.

Prem Kumar Ajink village, Mysore district, KarnatakaI am 22 years old. I was working on our farm, when the police picked me up took me to the police station. I was detained there for ten days, and they beat me on a daily basis without giving any reason.

My elder brother finally came and took me out of the station and got me admitted to a hospital. I was examined by the doctors, who found that both my heels were completely damaged. The police put me and the doctor under pressure to register the complaint as if I had fallen from the roof of the house. This is the kind of report that the police put pressure on the doctors to make, and the incident with me came to the notice of a Karnataka-based human rights organisation.

So, I have been appealing to various organisations, saying that the police have given me some money and asked me not to say that I was taken into custody and beaten up. The police were trying desperately to cover it up.

So, the Karnataka-based organisation brought me to Bangalore, where I was treated in a hospital before returning to my village. The doctors told me that if my legs did not come back to normal, I would be operated on again.

Since then, the police have been in touch with me: putting pressure on me and offering money so that I will not complain. I met the Inspector General of the Mysore District Police, which came to the notice of the local police, who tried to pressure me not to make this a big issue with a complaint to the higher authorities. They asked me simply to keep quiet at home and do nothing.

I’m handicapped, and I can’t work. My aged mother is now working, and I have to simply stay at home. My situation is that my mother is 75 years old, and I was the only breadwinner in the family. now that I cannot go around freely, I have to depend on her, which I don’t want to do. This is the kind of helpless condition I am in now.

I have not registered an official complaint, but the fact remains that I was perhaps picked up because of a case of mistaken identity. What matters is that I had to undergo the torture, and now I am incapacitated.

Shatrugan Singh Bihar

My father was murdered on 22 January 1982 by some people from my village. I was six months old. My mother lodged a First Information report [FIr] at the local police station, but the police changed the FIr and made a final statement in favour of the assailants.

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On 19 April 2001, my elder brother, Harekrishna Singh, was killed by the same people who murdered my father, but the police refused to look into the case. Later that year, on 22 September, my nephew, naryanji, was also murdered; the police closed that case as well. We kept on crying for justice and lodging FIr’s, but the police did not hear us out. In October 2002, my elder brother, Hareram Singh, was kidnapped, but his whereabouts could not be found.

Behind all these incidents is a Member of the Legislative Assembly [MLA] called Bhagwan Singh Khusra, who – because of a personal quarrel with a relative – commits atrocities on us through the police and trapped my brothers in fake cases.

On 25 August 2006, at around noon, the police came to our home. My two brothers were sitting on the verandah, and another brother was sleeping inside the house. Between 100 and 150 policemen came to our house and started shooting. When the police did not stop, both of my brothers came out with their hands above their heads in a gesture of surrender. The police caught hold of them, as well as my brother who was sleeping inside the house.

After talking with MLA Bhagwan Singh Kushwaha on his mobile phone, the Deputy Superintendent of Police told his men, “These men have to be taken dead, not alive”. My brothers were taken 100 to 150 gaj [metres] away from our home and were shot dead one after the other. My whole family and the people from the village were witnesses. They were killed in front of their children.

From 26 August, we looked for their bodies at the hospital and the police station, but we could not find them anywhere. At around 2 p.m. the same day, the police brought the bodies from I don’t know where and handed them to us 45 minutes later. Together with our relatives, we took the bodies to the District Collector. I told the District Magistrate everything.

At that moment, S.S. Thakur, the Deputy Superintendent of Police, and police officer Jitendra Misra, together with six other officers, approached us. They assaulted and threatened us, telling us not to file a case against the authorities and then drove away. They also arrested one of our relatives, but released him later in the night. After we had cremated the bodies, we came back home. The policemen told us not to lodge any case against them and continuously threatened us.

On 28 August, the human rights organisation People’s Watch came to us and showed solidarity and gave us some strength. Then my sister-in-law went to the court to lodge a complaint. The case is still pending, and no proceedings have taken place.

We wrote a letter to the national Human rights Commission, but they gave the letter to the police, and the police personnel came to our village. They took statements from my sister-in-law, the children, and from many other villagers, but they did not take any notice of them at all. The day the incident happened, on 25 August, they arrested a boy from the village. In his statement, he said that the police had shot these people in front of his eyes. But still the authorities have not launched any enquiry. The police did not record any statement of ours. neither did they carry out a post mortem on the bodies, on the orders of the magistrate. nor did they allow us to take photos of the bodies.


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This is what I have been through, and I would like to say that until now, this sort of incident had never occurred in the history of independent India. Perhaps such an incident never even occurred during British rule.

If it is possible, help us secure justice and pray that such a horrible incident should never happen to anyone else’s brothers.

Thank you.

Colin Gonsalves

Thank you, Mr. Shatrugan Singh. He made a very important point about which we must take notice: At the moment, in the nHrC – and probably, in many cases, in the State Human rights Commission [SHrC] – hundreds of complaints of torture, execution, and disappearance are being lodged, but 70 to 80 per cent of them are being dealt with by sending the complaint back to the very police station against which the allegations have been made. The police station reports that the complaint is baseless, and the nHrC closes the case. If we get the chance, we must make a very strong protest against the nHrC and the SHrC for dispensing with 70 to 80 per cent of the cases and complaints in this way. That is the point Mr. Singh made that I wanted to expand on.

Babu Thomas’ father and Ajayan from People's Watch Kerala

Babu Thomas is 38 years old. On 23 november 2006, he was picked up by the police from a tourist lodge. The next day, his family received a message from the police station where he was being held that he had been killed. The family reached the Tata Tea estate Hospital the following day, where they found that Babu Thomas had been tortured.

Police officials, a Member of the Legislative Assembly, and the sub-collector all agreed publicly that Babu Thomas has been killed by the police. There was a huge outcry about the incident, and several representations were made to different government bodies, but without any response. It is now over one-and-a-half years since his death, and we have still not heard anything from the government.

Babu Thomas’s father is 76, and his mother is 70 years old. It is 19 months since the incident, but they have not received any compensation. nothing has happened.

V. A. Patil Maharashtra

I am from Sangli district of Maharashtra. nine men from my village murdered Balasaheb Anandrao Patil, my elder brother. Subsequently, my father and I filed a complaint at the Vita Police station. For the next five months there was complete inaction on part of the police, and they didn’t even make a single arrest.

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As a result of the police stations’ unwillingness to carry out any work, we [my family] made several complaints at the Home Minister, Chief Minister and Prime Minister’s offices. The case was then transferred to the Criminal Investigation Division [CID]. Within eight days of the investigation, the CID arrested nine of the accused and submitted their papers to the District Court. The nine accused were punished by the District Court, where they were sent to rigorous imprisonment for life. The accused took their case to the High Court, where they were released on bail.

After the accused were released on bail, they came to my area several times and insisted that I withdraw the case from the High Court. They used to also fire bullets randomly to scare us. When I took this complaint to the Vita Police, they too were supporting the accused and asked me to compromise.

On 20 June 2002, in the middle of the night, Police Inspector [PI] ramchandra Ghuge and Inspector Borade and Inspector Pradhan of the Vita Police Station suddenly picked me up and took me to the police station. My wife, Anita, and my brother, rajendra, followed me to the police station. At the police station I was brutally tortured by the police, where they assaulted me with an iron bar and hockey stick. They also locked up my wife and brother, as they were protesting against my torture.

After my brother’s murder, I purchased a licensed revolver for self-protection. On 21 June 2002, Inspector Ghuge went to my house and confiscated all my weapons, ammunitions and cartridges, as well as my jeep, agricultural tools and other important documents, without any panchanama.

They falsely accused me of various crimes, and on this premise they kept me at the police station. I was kept at the lock up for 21 days. Inspector Ghuge, Dattaray Mandlik, Suresh Pawar, uttamrao Salukhe and Vihswas Pandhare continuously tortured me for 21 days. They also threatened to implicate me of serious offences, which would put me at their mercy for more days. As a result of the torture, my wife was forced to withdraw some of the complaints she had made against the policemen. The torture was very humiliating and painful. They stripped me naked, threw petrol on me, electrocuted me and whipped me with a belt or hit me with a stick. They further threatened to implicate me with nine murder cases.

As a result of my injuries, I was hospitalised at Samgi Civil Hospital on 13 July 2002. During my time at the hospital, Inspector Ghuge used to visit me regularly and threaten me in case I filed any complaints against him and other policemen. After I was prematurely released from the hospital, I was again arrested by Vishrambag Police Station. After a while, I was granted bail. My wife and I went to nagpur and gave various applications to the Home Department. I also mentioned that I was on the verge of committing suicide. The Home Minister then assured me of investigation by the CID.

The CID filed a charge sheet against PI Ghuge. unfortunately, Ghuge was the only one to be arrested, while the other four who tortured me have not been implicated. I would like the other four to be punished as well.


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Bibi Khatun Gujarat

I have come to ask for justice for the people of Godhra. Six years have passed since the incident happened, but the people of Godhra have not received justice.

I have three sons. Their father is suffering from cancer.

My sons were arrested; they have not got bail yet. After great difficulty, my eldest son was granted parole. He was supposed to be bought home at 7 a.m., in the morning, but they [the police] bought him at 3 p.m. and took him back at 6 p.m. next day my younger son Bijaur came. They braught him home at 8 a.m. in the morning. They did not allow him to even talk to his father and took him back at 6 p.m. in the evening.

On the third day, my youngest son, nasir Khan, was taken by the police around 8 a.m. The policemen were in such a rush that they did not allow us to even talk to our children. They did not even let me, their mother, meet them. In this way, atrocities were committed on the innocent.

We're from Dahod; we came to Godhra to earn a living. We did not know about the riot. I am a mother who has never raised her hand against her sons. My son was beaten up so badly by the police that I have no words to describe it.

I said, “Sahib, this is my kid, why are you hitting him?” The policeman said, “Shut up, you sister-fucker; don’t make any noise.” I apologize for uttering this profanity. “Shut up, you don’t know anything. This is the style of working of the government.”

I pleaded with the policeman, folding my hands, and said, “Sahib, why are you doing this? Why are you beating this innocent boy? How can you beat him like this?” Then he said, “Shut up, I can beat you, mother, as well. Get the hell out of here.” Then I went home.

The riot happened after the train was burnt at 7 a.m. in the morning. The train was burnt four kilometres away from our house at the station; we live outside the station. The police picked our kids up around 5:30 p.m.

Our kids went out to work that day as usual at 9 a.m. and returned home at 4 p.m. One of them told me that a train had been burnt. I asked: What had the burning of train compartments to do with us? When my sons were washing their hands after eating at around 5:30 p.m., the police came and picked up all three of my sons. In all, 11 people from rahmat nagar were taken away in a similar fashion on the first day from the taluka [administrative division] Lalesra.

We did not know what would happen. My husband and I said, “Sahib these kids are ours”. The police were in disguise, so we could not recognize them. I myself don’t know exactly who the police are, so how would my kids know? The kids told me not to worry and said they would be released after being shown to the Bade Sahib [high official] at 6 p.m.

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Today, six years have passed, but not a single Bade Sahib has come. I don’t know where the Bade Sahib will come from. This is why I ask others to help the people of Godhra. We Godhrawallahs should get justice.

On 6 February, the Court was supposed to start its proceedings on Godhra. Our children should get justice, but until now nobody from Godhra has received justice. So many mothers, sisters, innocent children hoped that they would get justice, but until now we have received no news regarding whether our children will be given bail or set free.

When my elder son was arrested and taken away, on the third day, the police told me to bring him a tiffin and some clothes. When I reached the police station, a policeman asked what I’d brought. I told him that I’ve brought food for my children, which the Sahib told me to bring. I also said that I am an illiterate woman. The police told me to “get lost”. They drove me away and did not even allow me to give the food or clothes to my child. eventually, some kind prisoner shared some of his pickle and bread with him, which he had received from his relatives.

The next day the police again asked me to bring clothes. I went back to the police station.

A policeman saw me and said, “Sit down, Madam”. After a while, two policemen brought my son out, dragging him like a dog. Both of his legs were broken; he could not stand. They said, “Here is your son, you old hag”, to which I replied, “Okay, Sahib”. I gave the clothes to my son and told him to put them on.

The next thing I heard was a rumour that my kids had vanished. I went to the railway police station to enquire. I was told: “We don’t know about your sons, get out of here. What children? Whose children?” They got rid of me in this way by insulting me. I had to bear it, because I did not know anything. I have never raised my voice ever in my life, so how can I say anything in front of those Bade Sahibs?

They kept one of my sons in a closed jail in Godhra. They kept him there for 15 days. A kind laundry man who had seen him there told me, “Aunty, I’ve seen your son in the jail”. I asked him to take me there, but he said he couldn’t because the place was heavily guarded. At that time Godhra was under curfew. I went there, anyway, and saw my son signaling to me to find his two brothers. I signaled him back, asking where could I find them? One of the guards saw us and hit my son with his gun.

They kept my son in that location for another 15 days and then took him away to Ahmedabad. I still don’t know where they put him. I assume that all my three sons have died. I still wait patiently, because my husband told me to have patience and that there was no point crying. He said, “Have patience, and Allah will reward you”.

eventually, I found out that my eldest son was kept in a dark cell for three months, after which he wrote me a letter. His father read it and then hid it from me, or else I would have brought it with me [today]. The government wants proof; all these collectors, judges, DSP’s and Bade Sahibs don’t do anything without proof. This is why I would have brought proof, but my husband kept it somewhere, and he is dead now; otherwise I would have brought the proof with me.

My son’s letter arrived on Juma [Friday], after three months. I was reading the namaaz[prayer]. It was addressed to his father [my husband], and in it he asked him not to read it to


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me, fearing that I would have a heart attack and die. When I saw my husband reading the letter, I asked him what my son had written. He said he has called you to go and meet him.

After my husband’s death, I found the letter, and when I read it I came to know the truth. If I could remember where I put that letter, I would have brought it with me to show you. During three months my sons were beaten so much by the police that only Allah could save them. We believe in Allah, and therefore we will not lose courage even if we are tortured severely.

I think the Muslims of Godhra will never get justice. We do not find justice anywhere we go. And the Prevention of Terrorism Act [POTA] has a role to play in all this.

A year later, a man came to me and said that my son had been charged under POTA. I asked him what POTA was. He said it was a very bad thing, like a curse. After hearing this, I fainted.

The neighbours brought me to my senses, and my husband arrived. He consoled me and said that there was no POTA on them; they were simply in police custody and would be out in a few days. I said, “Okay”. In this way, he hushed the whole thing.

So, I appeal to everybody to bring justice to the people of Godhra. They are innocent. until now there has been no evidence that the people of Godhra have done anything or that Muslims are cruel.

[Cries ] Salaam Alaikum.

Tarlochan Singh Chandigarh, Punjab

The police in the Punjab have murdered and kidnapped Sikh youths and cremated them, unclaimed and unidentified.

now I shall discuss the problem that I myself had to face between 1985 and 1989. I retired as a Principal of Khalsa Senior Secondary School, in Kharar district, ropar. My son, Kulwinder Singh, alias “Kid”, was studying at the Senior Secondary School in Sector eight, Chandigarh in the tenth class in the year 1985.

While he was studying over there, he came into contact with the activists of the All India Sikh Students Federation, and he started taking an active part in the Student Federation. In those days, the activists of the All India Sikh Students Federation were being taken into custody by the Punjab police.

The Punjab police started harassing my family, too, in 1985, and they wanted to apprehend Kid. I produced my son before the Station House Officer in the Khal police station in May 1985 in the presence of some respectable members of the constituency. On the same day, five other Sikh youths were handed over. On 14 May 1985, Kid was arrested along with the five other youths in an encounter with the police about two miles away from randha on the right bank of the road, which leads from there to Ludhiana.

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Thereafter, 92 village panchayats and other respected persons from the Kharar constituencies went to the Deputy Commissioner of ropar to complain at the police excesses. The Deputy Commissioner of ropar assured them that an enquiry would be conducted properly. Simultaneously, Sardar Samsher Singh Joshi, along with Mr. rajiv Singh Vance, a retired judge of the Punjab and Haryana High Court, approached the Governor of Punjab to order an enquiry, which he did.

The enquiry was conducted by Mr. Joshi and a dignitary from the Punjab police. On the basis of the witness’s reports, the case was withdrawn. Those six innocent youths remained in the jail from 14 May to 12 August 1985, but no action was taken against the police officials who had staged a “false encounter”.

The police from Sector 39 of the police station in Chandigarh also implicated my son and four other youths in another case. They were sent to Mudha Jail. The judge acquitted the four youths, and because my son was a minor, told him to appear in the Juvenile Court in Chandigarh. But whilst the case in the Juvenile Court was pending, several other cases were also registered against him. After taking him into custody, he was sent to nabha Security Jail on 3 April 1987.

I was also one of the members of the enquiry committee set up to look into the excesses committed by the police, and we made speaking reports to Justice Ajit Singh Bains, Chairman of the Human rights Organisation Punjab, Chandigarh. There were six of us. We conducted several enquiries into false encounters carried out by the police.

On 22 July 1989, my son was kidnapped again. I was sitting in my office in Khalsa Senior Secondary School, Kharar, when I received a phone call from a stranger saying that since 11 a.m., House no. 1752, Phase 5, Mohali, had been cordoned off by the police, including some in plain clothes. I contacted my colleagues and reached there in a hurry.

In between house no. 1750 and 1776, which faced each other, I saw my son approaching. About eight or nine policemen who had been in no. 1752 pounced on him. He was blindfolded, his hands and feet were tied with thin cloth, and he was wrapped up in a black blanket. He was dragged into a white gypsy jeep parked outside House 1719. Inspector Amarjit Singh and the other policemen left with him towards the south.

We went to the police station at Mohali to file a report, but we were not allowed to do so. Thereafter, we went to Chandigarh and met Sardar Bachittar Singh from that constituency. I explained the whole story to him. Together, we sent telegrams to the higher authorities regarding my son’s kidnapping. The story also appeared in the papers.

I sent representations to the President of India, the Home Minister of India, the Prime Minister of India, and the Governor of Punjab to order a judicial inquiry, but nothing was done. I went to the Punjab and Haryana High Court, where a senior advocate was sitting on the bench. They filed Writ Petition number 3342, and the High Court ordered an inquiry.

The Sessions Judge from Chandigarh conducted the inquiry, and the report was sent to the High Court indicting all the members of the CIS Patiala. The High Court again directed the


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Central Bureau of Investigation to investigate the matter and to register a case against the guilty persons. At present, charges are pending against a total of 37 police officers in the Sessions Court at Chandigarh. But at present, the proceedings are suspended.

I want to cite another example of kidnapping. This time it concerned Sukhdev Singh, alias “Sukkha”. After four months, he was “eliminated”, and the police totally denied that he had ever been in their custody.

This is my version. I shall say to the Central Government, and the Government of Punjab and the governments of other states, that the citizens of India are not terrorists. I hope that this house will help the people here today and that these stories will touch the hearts of the people.

Thank you.

Banwari Lal Rajasthan

On 28 October 2007, I was sitting outside my house. My brother was eating his food inside. In the meantime, the police raided our village, and a jeep came to our home. They came to me and asked me, “Where is your brother?” I said he was eating. Two police constables entered our house and dragged him outside.

As soon as he was outside, they started to beat him with their batons. I asked them what they were doing. They said, “If you want some blows, then come here”. They pushed me to the ground and took my brother away in the jeep. It was 8:30 p.m. I ran off immediately to get help from the other villagers. eight of us headed out to search for my brother.

On our way, I thought we should call the sarpanch [village head] for his opinion. I called him from a public phone booth. I told him about the entire incident; I asked him what I should do. He said, “I don’t know, don’t disturb me”. He also said, “Tonight, they will beat your brother a lot”.

upon hearing this, we went to the police station. We asked whether the Officer-in-Charge’s vehicle had been there, but the police said that no jeep had come their way. A policeman told us to check the old police station, but no jeep had come there either.

We could not find my brother, despite searching for him everywhere. After some time, we decided to sit at one station. After half an hour, the Officer-in-Charge and a driver arrived. I thought they had brought my brother along with them, so I approached them and asked, “Where have you left my brother Thanedar Sahib?” He replied that he was traveling around with two soldiers, and I thought to myself, “no problem; he will come back”. Another ten to 15 minutes passed, and I again asked the Thanedar. He said, “He will come alright; what’s the hurry?”

Still my brother was nowhere to be seen. This time, all of us entered the police station and asked the Officer-in-Charge: “Where is he? When will he come?” This time, he looked at us thuggishly and told us threateningly that my brother would come back, but that if we did not sit quietly, he would beat us with his baton. I told him: “This is unfair. Go and see whether he

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has been knocked unconscious somewhere”. Another policeman told me to go and look for my brother, because he must be lying somewhere. After that, our neighbour, radheshyam, went with a policeman in his jeep to look for my brother.

After some time, he called me and said, “Come quickly, your brother is unconscious”. So, we rode three motorbikes and went to the hostel where we thought they were, but we could not find him. From there we went to another place, where we saw a large group of policemen standing. We asked them about my brother’s whereabouts; they told us that he had been taken to Kota. We wondered how we could get there, because we could not travel on our motorbikes, since it was a long distance.

We hired a jeep to take us to Kota. There, we found my brother in the emergency ward of the hospital, where he was lying unconscious. We did not know what to do. We asked the doctor for his advice; he said not to worry and that he would get well soon. He had been in the same condition ever since he was admitted, which was a day before we found him. He needed blood and oxygen. The day passed – he was in the same condition the entire day. Then at 4 a.m. the following morning, he died.

The post mortem was conducted between 10 and 11 a.m. His body was taken away in an ambulance, but at the crossroads, the police stopped it and moved his corpse to a truck. When we asked what they were doing, a policeman said that they were going to cremate the body. I told them that we needed to take the body to the hospital again. They asked me: “What will you do with it? Shut your mouth and don’t act smart”.

Having no choice, I called a Member of the Legislative Assembly [MLA], Mr. Pramod. I told him that they were taking away the body and told him the location. He said, “Don’t worry; you will be able to take the body. I’m coming there very soon”. He found us, and together we intercepted the vehicle. Pramodji asked the policemen about the affair and told them to hand over the body. The Superintendent of Police said, “What will you do? Are you teaching me? I will shoot you.” now if such a person threatens a MLA, what hope does a common man like me have?

The MLA complained to the District Collector about the incident. Then we filed a report in our village police station. All this time, the dead body was on the road. In the village, the policemen told us that they wanted to cremate the body at night. I told them that according to Hindu rituals, a dead body cannot be cremated at night and that I wouldn’t let them do it. But they had already decided on it. My pleas did not help. After all, these were important police officers. So many police personnel were there, so how could I stop them?

Parveena Ahangar Kashmir

My son was picked up in 1990 by the national Security Guard. When he was arrested, he was in the tenth grade at school.

The following day, I went to the police cantonment, and they said he was in the P.P Garg Hospital. I lodged a First Information report. Altogether, there were about 60 missing people, but there was no sign of their


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whereabouts despite the efforts of their families. I filed a petition in the lower court that acknowledged the arrests. We wondered why our kids were not getting justice and why we were having to run from pillar to post.

In 1994, we established the Association for Parents of Disappeared Persons [APDP], so that we could campaign for the disappeared from a forum and carry out searches for husbands, sons and brothers in an organized way.

There are 8,000 to 10,000 people missing in Kashmir, whom Indian security forces have arrested indiscriminately. We want our arrested children and relatives to be produced before us, and if they have been killed, we appeal to the authorities to give us back their bodies. If the Indian security forces have indeed killed one lakh of people in Kashmir, then they should at least return our children’s bodies.

In 2001, our organisation bought a piece of land to erect a memorial to the people who have disappeared. But the security forces created a hassle and stopped us from building it.

Last year, we organized a protest and sit-in at Janta Mantar in Delhi, where nirmala Deshpande, Tapan Bose, Kuldip nayar, Shabnam Hashmi and other Indian intellectuals met us and expressed their solidarity with our cause. There were about 90 parents and relatives of the victims participating in the protest. Last year when we protested, the sensible intelligentsia of India listened to us and agreed that indeed we have been oppressed and wronged, and they listened to what we had to say.

A commission was set up to investigate the recent massacre of around 27 to 32 Kashmiri Sikhs. In a similar way, the government also set up a commission to investigate the case of our relatives who have allegedly been arrested by the security forces and are missing. But the government is not doing anything at all in our case.

Most of the members of our organisation are widows, and there are also many members who have two or three children who are missing. For most of us, our financial situation is not secure. Most of us are poor, and many of the victims were the sole bread-winner in their family. Consequently, many of our members are struggling to make a living.

The son of the woman standing next to me is missing. The army employs militants who have surrendered in counter-insurgency operations. This lady was threatened by one of them, and on the basis of that, she is being given protection by the government to prevent the surrendered militants from killing her; so, she is facing a lot of troubles on that account.

I am the current head of APDP, and in my case the High Court has ordered that the security personnel who were involved in arresting my son be convicted. It has also issued arrest warrants for them, but these orders have not been implemented because the army and other security forces are not willing to cooperate. even though there have been judgments in our favour, these orders have not been implemented because of a lack of cooperation from the security forces.

Last year, the Daka case – in which security personnel gunned down an innocent person and claimed he was a militant – became very famous on the Indian news channel nDTV. It was

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called the Padru killing. The relatives of Mirja raa Daka are members of our organisation. The family participated in our protest and struggled with us. Last year, when an inquiry was made into their case, the body was exhumed, and it was identified that he was an innocent civilian.

Chief Minister Ghulam nabi Azad asked: How many more dead bodies would we have to exhume, as so many people have been buried? Later he promised to set up a commission to investigate the matter of disappeared persons, but it was not acted upon.

We want justice. We are thankful to the people here who have expressed solidarity with us. Several times, human rights organisations have demanded that the relatives of the victims be given ex gratia relief. The Farooq Abdullah government also made a promise to award relief, but many times in these cases when the government is implicated and is proven to be guilty, it tries to pressure the petitioners to withdraw the case.

We just want justice for our beloved departed; we don’t want money or jobs. We will continue our struggle as long as we are alive. We only want your solidarity; we don’t want anything else. We only want your support and solidarity and for you to exert pressure on the Indian government so that they return the dead bodies of our missing relatives or tell us their whereabouts.

We have been engaged in this struggle for 18 years, and it is a pain for which there is no remedy. This is a disease just like cancer. We want justice. We want information about where they are buried or where they are currently jailed. We appeal to you for your support in this struggle and we would like you to appeal to our government so that we get justice.

During our struggle, we have been to several jails, such as Tihar and Jodhpur, but our relatives were nowhere to be found. We appeal to the government to tell us whether they have been killed, and if they have been killed, where are they buried? The majority of the relatives of the disappeared have contracted ailments out of depression, thinking that when there is a knock on their door, that it must be their child standing there. If the mother or father of someone who had disappeared dies, who will there be to search for them?

Thank you.

Mrs. Bhakti Kashmir

[through a translator]

She is from northern Kashmir; her son is missing. She belongs to a very poor family. Major Bhattacharya from the Indian Army arrested her son. She was going to Baramulla on a bus, along with her 22 year-old son and his new wife, who was sick. They were on their way to the doctor.

There is a place called Trakpura, where there is a special counter-insurgency unit of the 28 rashtriya rifles. Major Bhattacharya was working there with a surrendered militant. He pulled


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Mrs. Bhakti’s son off the bus and took him to a camp. When she ran behind him to the camp, they pushed her to the ground, hurting her arms very badly. She required almost 20 stitches in her hands.

She was waiting at the gate for an officer to come out so that she could talk with that person. After some time, Major Bhattacharya came. She asked him when her son was going to be released, and he told her to wait for some time; then he vanished.

Mrs. Bhakti waited until nightfall, but no one came, so she went home. In the morning she took some relatives and neighbours with her to the camp and protested outside the gate. The Major came out, along with the surrendered militant and some soldiers, who started beating them with their lathis. Some of the people got badly hurt and later dispersed.

The next day, the surrendered militant who was working with the army came to their house and threatened to kill her son if she filed a case against the army. He told her that a man called Setha, an uncle of her daughter-in-law, was involved in a property dispute with that woman. He said that if that problem could be solved, Mrs. Bhakti’s son would be released. The surrendered militant also threatened that if any case was filed in the court, the army would kill her son and her family.

After some days, Mrs. Bhakti went to Sopor and met the Senior Superintendent of Police. She lodged a First Information report [FIr], but the police did not give her the FIr number for seven months.

The surrendered militant came again to her place and told her not to pursue the case. He threatened the other witnesses, as well, and told them they would be killed if they testified. The witnesses, therefore, told her that they could not act as witnesses because of the threat to their lives. The case continued in the courts, but nothing came of it due to the lack of witnesses.

The army keeps on visiting their residence. They have killed her boy and have also injured another boy from her family. Soldiers keep on frequenting her household and harassing her and her family members.

To conclude, Mrs. Bhakti says that Major Bhattacharya is from Ambala, Haryana. At one point he called her daughter-in-law to a neighbour’s house and told her to take one lakh rupees as an ex gratia relief payment and to withdraw the case; otherwise she would have to face a lot of trouble.

Mrs. Bhakti is asking for the return of the body of her son and requests all of you to urge the government to take action and start legal proceedings against Major Bhattacharya. She wants justice. She says that she got the major’s address from a surrendered militant called Shahzad Sheikh.

Thank you.

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Shashi Bhushan PathakPUCL, Jharkhand

I am from Jharkhand. I am here to talk about the human rights violations in the state of Jharkhand. The dismal state of human rights - and their continuous violation - is a result of the policies of the State Government, framed with assistance from the Centre, which have betrayed the common people of Jharkhand. Secondly, the common person in Jharkhand is being cheated on a personal level by the State Government .A huge question

regarding displacement of people has arisen before us.

Police atrocities in Jharkhand have several dimensions. There are many examples of oppression by the state machinery. At present, the burning issue is about displacement. In many areas of Jharkhand, energy and steel plants are being constructed. We are all aware that Jharkhand is rich in minerals and forest resources. To extract minerals and forest resources, multi-nationals, the bourgeoisie class and the Government are continuously oppressing the people of Jharkhand.

In the Latihar districts, the Ajay group is planning to build energy plants and has already started preparing for it. For this purpose, there is a village in Latihar called Hempur adjoining which is Chitalpur and the lands of the farmers in that region have been acquired for 500 rupees per acre. In the initial stages, the criminals and important people of that area have been given lands at a higher price but later they collaborated with the government and now all these elements have joined forces and are harassing the farmers of that area and from some people land has been purchased for about 500 rupees per acre. If these people speak out or protest they are being cheated and are harassed by initiating false cases against them. There is also a terrorist organization, an armed outfit which has rumored to have split from the Maoists known as the Tritiya Prastuti Samiti and there is another known as the Jharkhand Liberation Tigers. Both of these organizations assist the government in acquiring land for the companies.

In some places where the people are waging a war against displacement by starting movements, the government is openly declaring that the movements in these areas are Maoist engineered insurrections in order to crush these movements. By dubbing the agitators naxalites and Maoists they are arresting these people and locking them in jails.

Another issue in Jharkhand is that of education. In nearly 50 per cent of the primary, middle schools and even high schools, the paramilitary forces and District police are running their operations from there. In some places the whole school has been changed into a base for paramilitary forces. In some schools, the building has been split in two: in one half there is a police camp and in the half of them, children study. even girl schools are occupied by paramilitary forces. Bhandaiya, a place on the border of Chhattisgarh and Jharkhand, there in a girl’s school there is a paramilitary camp. The jawans [soldiers] come out in the mornings to wash themselves. In between the village and the school, there is a small wood. So the little girls have to cross the small wood and in the process of doing so rapes have been committed [by the jawans] against two or three of the children.

unfortunately, we have not been able to convince their parents to bring charges against those responsible. This because their mentality is that if they bring a case against the soldiers it will


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affect their reputation and their daughters’ and it will be hard for her to marry and to participate in society. Therefore they do not come forward.

Our organization, PuCL, had filed an rTI [right to Information] application with the Jharkhand Government, police department and the education department asking how many schools had paramilitary forces based out of them and asking which order authorised them to set up camps there. The law says that the information has to be furnished in one year. One year has passed but we have got no information from the authorities.

The Chief Information Officer [CIO] has clearly told the other Information Officers not to admit this case. It is written on the file that this case can be rejected so it should not be admitted at any cost. Information Officer Gangotri showed me the file and told me that that Sir [the CIO] asked me not to admit the file. One year has passed but I have got no information.

People are being labeled Maoists and atrocities are being committed against them. In Hazaribagh district there is a village called Kolepatal there is a small railway station near the village there is a village called Khatal where a person called Lalkoo Mahato used to stay and he used to run a shop worth 20,000 rupees. He used to look after the shop at day and at night he used to go to his home. The police visited his house one night and shot him at around 3 – 4 a.m. They shoot him dead on the suspicion that he is a Maoist. The interesting thing here is that the policeman standing next to the policeman who shoots the man quarrels with his colleague saying that they were not ordered to shoot the person. After shooting him they take him on a bed to the nearby hospital where he dies. The villagers after learning this incident organize a movement. After the movement the employees of the civil administration and the police department visit Lalku Mahato’s house and offer condolences and make an agreement with the family of Lalku Mahato that a man of their family will be given a job and the guilty policeman will be punished.

Later we applied under rTI for information regarding the proceedings launched against the accused. The SP of Hazaribagh did not give us any information about it. They are not being helpful. I have already told you about the conditions of the Information Commission, we did not get any help there. I am tired of trying them.

A 3rd case which the PuCL noticed was that of a declared Maoist Bhagirath Mahato whom the Hazaribagh police caught with the assistance of the Central reserve Police Force [CrPF]. He was subjected to inhuman torture. A rod was shoved up his anus and later petrol was poured in his anus. Because of this torture his physical condition grew weak. He was caught on 19February and on 22 February he was admitted to r.M.C.H Medical College. When we got this piece of information we used rTI. We got information about his whereabouts through rTI because one of our colleagues in rTI had a son who was the Health Minister in the Jharkhand Government. Because of that influence we got the information.

The medical college authorities told us about his [Bhagirath Mahato] sufferings. We went to meet him in hospital. His stomach was being operated upon and his excreta was being taken out but still he was handcuffed to a bed post. We filed a complaint to the Human rights Commission. The only defect about filing a complaint with the HrC is it sends its report to the same police station and Superintendent against whom the charge is made and thus the whole

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effort goes to waste. We have filed an rTI application about the matter but till now we did not get any response.

In the Latihar district there is a village called Sarju. In Jharkhand we have regions called Pat, my friends who are from Jharkhand will know that these areas. The Pat regions are 600-700 metres above ground there are settlements on these rifts or hills. no doubt the Maoists have a lot of movement in that area. In that village out of 200 inhabitants 54 people are accused of being Maoists and out of these selected people the police has caught several of them and locked them up in jails and extort 5,000, 7,000, 12,000 rupees from them and then keep them locked up for more than a month. We receive information about them later. even after the police have gone these people are in a bad condition.

Myself, my colleague the Minister’s father and Tridiv Ghosh had gone to as part of our enquiry committee to investigate into the fake encounter of a naxalite activist. The naxalites had also made a booklet on that matter. This book is readily available in the Garba district where my name, Lalmani Pratap Dehati and Tridiv Ghosh’s names are printed saying that we had helped them in the enquiry of their comrade Prayag Yadav’s death. I haven’t seen the report but due to this booklet the police have charged me with 17 CLA Act and a FIr has also been lodged against me. Whether it was a matter of coincidence, or of the working of the court because we had the Health Minister’s father with us, so we were not arrested.

Those in Jharkhand who work with human rights are accused of being friends with naxalites or as being naxalites or associated organizations. A fact-finding team from Delhi comprised of women recently went to Jharkhand to study the conditions of women prisoners. For that they needed permission from the Jharkhand Government. We contacted the Home Secretary who told us point blank that you people work for PuCL and since PuCL workers are naxalites we cannot give you permission. He told this to our faces and they also say it publicly: that PuCL activists are naxalites.

now my problem is that if I work for human rights I become a naxalite and if I do not work for human rights then I do not have mental peace, how will I then answer my own conscience? So, I think that if you hear Phoolmani from this platform and feel that something needs to be done then we can pressurize the state so that these kind of human rights violations do not happen again and in Jharkhand innocent people are not harassed by branding them naxalites.

Thank You.

Ganesh Ravi Jharkhand

An incident happened in the Chinia block of the Garba district on 14 January. I have come to give testimony about that particular incident.

On that day, a 16-year-old boy called raju Kumar ravi, who studiedin the seventh grade, was arrested by the police and thrashed so badly at the police station that he lay unconscious for two days. His family was

pressured not to take him to the hospital.


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At last, they managed to get him admitted to the Garba Hospital. When the People’s union for Civil Liberties and other social-service organisations came to hear about it, they created a lot of commotion over this incident and demanded that it be investigated.

Why the police thrashed raju is a big question. raju was beaten because, in 2006, his maternal uncle complained to the Superintendent of Police that the policemen in that particular station had killed his pig and eaten it. The case that was actually made against the boy was that he had had a fight over some farmland.

That boy is yet to recover and today is in hospital. I told his uncle about the tribunal and asked him to come and testify. At first he was ready to come and had booked his ticket, but now some lawyers have gone to Jharkhand to investigate what happened at the police station.

When the Officer-in-Charge [OC] learned that the boy’s uncle was going to Delhi on 7 February, the police approached him that day and offered him some gifts. They also promised to pay for his nephew’s medicine. They then lured him away and hid him for the whole day. We kept looking for him until the evening, before we learned that the OC had hidden him. According to the officer, he was not arrested, but was kept hidden from us in some way and was told he would get into trouble if he went to Delhi. He was a simple villager.

So, I have come here to give testimony on his behalf. The boy has been in the hospital since the 14th of last month until today [9 February 2008]. The police tortured him so much that he has only recently been able to walk a little; even that is an improvement on his earlier condition.

The police had a grudge because raju’s uncle had spoken about them to the Superintendent of Police. And raju has spent 25 days in hospital because of the police thrashing.

Thank you.

Phoolmani Bokaro district, Jharkhand

At 3 a.m., on the morning of 24 or 25 June, the police came to our house and handcuffed my father. They took him to an alley at 4 a.m. and thrashed and beat him.

While I was standing at the door, the police took me to another place and started hitting and questioning me. They took me to the jungle, which was quite far from the village, and strung me up from a peepal tree after tying my hands and feet. They said that if I made any noise, they would shoot me; in this way they threatened me.

They told me not to mention this incident to anyone, saying that if I told anyone, they would catch all of the villagers one by one and lock them away. I asked them what we had done to make them threaten to keep us rotting in jail. And I said that we were willing to cooperate with them because we were poor, landless people who sell dantan [neem] leaves to make a living.

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The police then abused me verbally, accused me of not telling them anything and threatened to beat me up again, which they did until I fainted three times. When I asked for water they abused me verbally and refused to give me any, saying that instead they would either spit on my mouth or urinate on me.

They hung me upside down and started thrashing me and asked me whether I recognized them. They told me that they had come from nawadi Police Station. One of them was Pramod Singh. I told them that if they were from my own village I would have known who they were. They told me again not to make any noise. Then they started to hit me, and I fainted.

Before all this, they had stuffed some leaves and the dupatta [scarf] from my salwar kameez[traditional shirt and trousers] in my mouth. Later, they stood on my chest and started kicking me. When I fainted again, the policeman raped me.

After having first entered our house at around 3 a.m., the police brought my father back at around 12 noon. They offered him 50 rupees, but he did not take it.

After coming out of the jungle, they left me unconscious on the verandah. I regained consciousness when my uncle gave me some water. The two policemen had already gone.

At first, we were too shocked to do anything and had no hope. I was injured, and we did not know what to do. My father sold his bull and pig to pay for me to be treated at the nawadi Hospital. There, they said I was alright and wouldn’t help me.

From there, we went to Bokaro and then to Kachahari, where the Superintendent of Police said that if I didn’t keep quiet, I would be raped again. He told me that if I didn’t keep silent, the police would kill me and dump my body.

So, we came back home without having been able to achieve anything. The police from nawadi came to look for me. I was not at home, and they asked for my whereabouts. When they asked my parents why I had gone, they told them that I had left because I had been beaten up and was very scared. The Officer-in-Charge told my mother to bring me back and to stop making any more hue and cry. Since the incident had been published in the paper, the policeman gave my mother 500 rupees. They told her to keep silent, saying that we wouldn’t get any benefit from telling anyone about what happened.

Thank you.

Shashi Bhushan Pathak accompanying Phoolmani

Friends, PuCL has examined Phoolmani’s case and continuously pursued it. We took her to the local Deputy General of Police [DGP].

Initially she was not very fluent in Hindi, as her vernacular is Santhali. now, of course, she speaks fluent Hindi. She was taken to the Superintendent of Police, Deputy Inspector General [DIG] and the DGP. each one of them questioned her on every small detail of the crime [rape] committed by Sub-Inspector Pramod Singh.


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When we were at the DGP’s place, she broke down in front of him. Sickened by the repetitive questioning, she asked the DGP if he had a mother or a sister. Please try to imagine the pain a 15 year-old girl was going through while describing the incident. I also asked the DGP hypothetically to imagine if the same had happened to your daughter.

[Addressing the audience] What if the girl was your daughter? Please try to imagine: The Sub-Inspector Pramod Singh raped her first, and then by the repetitive questioning by the DIG and DGP, also raped Phoolmani. repetitive questioning of such an odious crime is as good as raping.

Previously, Pramod Singh had killed a naxal at point blank range. As a result of continuous pressure from PuCL, he was transferred to Phoolmani’s area, where he raped her. Following the incident, he was given the post of a bodyguard to the DGP. We have not been given any information as to what kind of action will be taken against Pramod Singh.

The Circle Inspector of the area called the PuCL member who was involved in Phoolmani’s case. He then beat him up and asked why he was so concerned about Phoolmani’s case and not other policemen who have died in action.

Santosh Kumar Patna, Bihar

The incident happened on 27 november 2006. I was sitting in my house at around 11 p.m., when the police came. They knocked on the door and asked me where Santosh Kumar was. I told them it was me; they asked me to come with them.

I asked them what I had done. They started to take me away forcibly. When my wife asked them what I was being accused of, they hit her, and they took me away in a private Maruti van to the police station.

They tortured me so much that my finger, teeth, thigh and other parts of my body are still aching. Then, they sent me to jail on 30 november. On the pretext of taking me to the hospital, they confined me for two to three hours. The court had already ordered that I be treated in a hospital, and the jail’s doctor referred me there as well, but due to pressure from the police administration, I was not taken.

My father was a police Sub-Inspector, and he was in training. The people who tortured me, Shabbir Ahmed and others, were working under him. They had some quarrel with my father, and, hence, they took their revenge out on me. I was a football player for Patna District, and I cannot do that now.

I hope that whatever happened to me does not happen to anybody else.

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Khongbantabam Sanatomba, alias LangpoiImphal West district, Manipur

On 19 January 2008, at around 8 p.m., some army personnel came to our locality, and I was arrested from the gate of my house while I was organising a Thabal Chongba [a form of traditional dance]. It was part of Imoinu Eeratpa [a traditional matchmaking festival dance], as I was the leader of the Imoinu Eeratpa committee.

The soldiers came in two vehicles, one white Gypsy and one olive green 407 Tata truck. I was dragged, blindfolded, into the Gypsy; I do not know where I was taken.

After some time, I was somewhere in a room, but I did not know exactly, as I was blindfolded. I was made to sit on the ground, and my captors started beating me with a stick. They asked me: “Which underground outfit do you belong to?” I replied that I once belonged to the united national Liberation Front – a separatist movement – but now I am not involved in any underground organisation, since I was arrested by the Manipur police and imprisoned in jail. I further disclosed that I was now helping my parents, after my release on bail.

The soldiers asked me to hand over the guns and to disclose the persons who were involved in the underground organisation. But I replied, “I do not know anything, as now I am not involved in any such underground organisation”.

My hands were always tied, and I could not distinguish day from night while I was in custody. I was fed while blindfolded, so I could not eat my food properly, and I could not answer the call to nature in time.

After a long time I was taken from there to a vehicle. Inside the vehicle, the army personnel told me that I will be killed. as I did not give them the information they wanted from me. After driving some distance, the vehicle stopped, and they made me sit on the ground. The soldiers said I was going to be killed there, and they untied my hands.

After some time, I heard the sound of the vehicle. Then everything went still and quiet. I sat there for a long time. Then, I slowly removed the blindfold and found that I was alone. I realised that it was already dark. Later on, I came to know that I had been in their custody for five days. They released me on 24 January 2008.

I went towards a road where I could see some houses. After some time, the sun rose. I reached home at 4:20 p.m. the same day.

RamshreeShahabad, Uttar Pradesh

I will tell what happened to me. As my husband was going from one village to another to buy buffalo, he was robbed near Majra Police Station. He tried to file a report in the police station but was turned away. Then, he instituted proceedings in the court through a lawyer. Together with policemen from Shahabad, the thief came to our home one morning and started beating my


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husband. There were two constables and another policeman whom I could not recognize. They started beating me, too.

I said, “I am pregnant; please don't hit me.” After hearing this, one of the constables said, “One should kill this Chamariya's [low-caste] baby before it is born and creates trouble.” Saying this, he kicked me hard in the belly; due to that kick, I lost my baby.

After the police left, the villagers took me to Hardoi hospital, where the dead baby was removed from my womb. There has been no report of this incident lodged in any police station.

When an enquiry was held, the police arrested my husband and locked him away. The lawyer who was helping us, as well as two or three of his brothers, were charged under false cases and sent to jail.

The police committed a lot of atrocities against me.

Advocate Dharmendra Singh accompanying RamshreeSince she is from our Vidhan Sabha constituency, we helped her come here so that some inquiry can be started into her case. until now, no police station has been willing to listen to her. She is being tormented by the Shahabad and Hardoi police, as well as by the uttar Pradesh administration.

When the police learn that someone is helping this woman, they make it a point to lodge false proceedings against that person. Whoever tries to help her in Hardoi district is fined by the police and has a false case filed against him.

now, everybody who wanted to help her avoids her for fear of being harassed by the police. We are sure they are looking for us because we came here together. They are trying to find out who is helping her. She was wandering here and there, looking for help, and going from door to door seeking justice.

The policemen are also harassing her directly and have broken her utensils and hearth. If they had known she was coming to Delhi, they would have stopped her; she would have been imprisoned.

Her request now is that an enquiry be made into her case so that the truth comes out and she gets some relief. She also requests that her helpful lawyer and his brothers be given some sort of relief, as well, and an inquiry started into their case as well.

Thank you.

Mumtaz Ahmed Bhat Srinigar, Kashmir

When my father retired, my younger brother, who is educated, was given a job in an electricity department in Lal Chowk, Srinigar.

My elder brother's friend liked my younger brother, so he took him to his house after he finished work at Lal Chowk. At that time police raids were frequent, and the place where the friend took my brother was raided. Four people from two of the nearby buildings were arrested; my brother was arrested as well.

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Later on, the others were released, but not my brother. We learned from a report that the rashtriya rifles – a counter-insurgency army unit – had arrested him. At first they acknowledged that they had taken him and then denied it.

We searched for him in every jail and camp, but could not find him anywhere. We also checked the camp near the friend's house. Some of the soldiers said at first that they had arrested him, but denied it later on. After not hearing anything about him for a long time, his employment at the electricity department was terminated.

In our family, there were four brothers and three sisters. I used to live with my younger brother. One of my sisters was married before my brother disappeared, but after his arrest the responsibility for looking after our other sisters fell on me, even getting them married. In addition to finding my brother, the entire burden of looking after our family has fallen on me.

This incident happened in 1996, and since then I've been running from pillar to post, but to no avail. I've been to every army camp in every town but still have not been able to uncover his whereabouts. We only hope that we hear something, even if he is dead, which often happens in cases where people are picked up by security forces – they later kill them.

Last year, in the first week of February, five bodies of people were discovered, and it was thought that they were terrorists belonging to Lashkar-e-Toiba [an Islamic Fundamentalist group from Pakistan]. When the bodies were exhumed, it was found that they were Kashmiris, and not Pakistani nationals, as previously thought.

From that time I have been thinking that my brother may have been killed in a similar fashion. But I still demand and appeal to the Indian Government to tell me where he is, even if he has been killed. I request the government to tell the security forces to give me the location of his grave, and if he has been cremated, to tell us where his remains are, so that at least I can know that he is dead and regain my peace of mind.

every time there is a noise, I think it is my brother knocking. If I can find his remains, I will be relieved, knowing that he is dead.

Thank you.

Mohammed Yusuf Dar Kashmir

My father disappeared when he went to the mosque to read namaaz. It was around four a.m., before the Morning Prayer. At that time there was a crackdown in our area, but he was not aware of it. It was his habit to go the mosque every morning to say his prayers.

That morning, the army had surrounded the whole neighbourhood and was conducting a search. When he came out from the namaaz, the army arrested him.


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It was at around 9:30 a.m. that I learned my father had been taken away during the raid. We went to the local army camp and enquired about him and were told that they had arrested a person answering to his description that morning, but they refused to hand him over. They told us to bring the sarpanch [the head of the village panchayat], saying they would talk to him. They also mentioned another man and asked us to bring him, as well, to the Dak Bungalow, where there was another army camp.

When we took the sarpanch there, we were told that the enquiry would last two to three days, after which they would let my father go. This happened in 1992. We waited for one month, and we wrote to the army officials regularly to ask why he was not being released.

When nothing happened, we went to the District Collector [DC] and told him that our father had been locked away for a month and was still there. The DC told us not to worry, saying that the enquiry would go on for two to three months, after which our father would be released. He told us to go home.

Since my father’s arrest, he has not been allowed to meet us even once. We kept on asking to be allowed to meet him, but they never let us, and until now we have no information as to his whereabouts.

Thank you.

Vasanta Putukkudi district, Tamil Nadu

My husband was taken into police custody and tortured on 22 May 2007. I was at home and didn’t know what had happened to him.

How did the police torture my husband? My husband was in the hospital. I was told that he had consumed poison. I went to the hospital, but I wasn’t allowed to see him. The police officials disposed of his body themselves. Due to some bad feeling towards us, the head constable tortured my husband for no reason. I have four children without my husband.

I approached the District Collector [DC], who ordered a post mortem. The doctors said that the body was too decomposed to conduct one; the doctor vindicated the other police officials. Jaideep from the panchayat, who is also friend of the police, worked with them to torture my husband.

I asked the poison sellers if they had sold any poison to my husband, and they said no.

I'm now a widow with four children. What I will do in the future?

For the record, a petition has been filed before the court; it is still pending.

Thank you.

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Mansoor KhanRajasthan

In 2007, my father was hospitalised. I parked my car near the hospital, but a policeman came and asked what I was doing there. I told him that my father was a patient in the hospital and that I had come to fetch him. He cursed me, caught hold of my collar and said: “Are you trying to act smart?” I replied that I wanted to visit a patient inside and asked him to let me go.

Instead, he took me to the police station and started swearing at me. Then, he thrashed me and put me in the lock-up. My friends, Lal Din and Gulal nazir, came to the police station and asked the constable to release me. He swore at them and drove them away.

The police tore my clothes and locked me up. ram Chandra Singh was the Officer-in-Charge of the police station with Munshi Khataramji [another policeman]. At around 5 p.m., they took 500 rupees from my relatives and released me. They kept my car, but released it later on.

After that, I filed a case in the court against the police, but they are still threatening to put me in jail. They asked me to compromise and drop the charges, but I have refused to do so.

Charmila BenBaroda, Gujarat

I have come from Baroda, Gujarat. The police took my husband from our house on a Friday night at about 6 p.m. and beat him to death; they did not even inform us. Had they told us about his critical condition, we would have taken him to some infirmary and got him treated.

This is how the police treat and torture common people. We all fell ill because of the shock, and my granddaughter became critical.

I want justice. Please help us.

Suleiman accompanying Charmila Ben

Charmila Ben has come from Baroda, Gujarat. A case involving violence was registered against her husband in 1982. The police came to her house while her husband was out in 2005 and told her that the 1982 file had been reopened. They told her that she had to present her husband at the police station.

Her husband sold tomatoes; they were very poor. The police questioned the local people and asked them to present Mrs. Ben’s husband before them. Her husband was 55 or 60 years old and had a bad heart. The people told the police that he was a heart patient, to which they replied that they would not do anything to him. The police took Mrs, Ben’s husband to the station that evening, tortured and beat him a lot, and he died there.

After this incident, the whole community gathered. The entire family was in a state of shock, and they all fell ill. Mrs. Ben’s daughter fainted. The community went to the hospital where


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her husband’s body was being kept and demanded an answer. They even went to the police station and surrounded it, demonstrating against the action of the police.

Still, nothing has been done about it until now. Please help her to get justice.

Mohammed Owesh Gujarat

Friends, all of you are aware of the events that unfolded in 2002 in Gujarat, and how people from one community destroyed people from another. You must know how women were raped and their households were looted, and that the police and government had a major hand in the whole affair.

Instead of justice, the wrongdoers have not been punished; instead, they are walking free.

In such a situation, unless the remaining Muslims raise their voices on behalf of those who have been booked under the draconian POTA law [Prevention of Terrorism Act], they will be locked away indefinitely.

One of them is my brother. He was accused under POTA and has been in prison for five years. Three charges were brought against him: One was the Haren Pandya murder, another was the tiffin bomb case, and the third was for having received Inter-Services Intelligence training. Judgments on two of the cases have been given already: In one he was sentenced to ten years and in the other to 14 years.

experts were called from Kolkata for the Haren Pandya murder case. They proved that the way the Criminal Bureau of Investigation [CBI] had portrayed the murder on the charge sheet was wrong. As the CBI had presented it, the car window was two inches open, he was shot from low down, the bullet hit his neck, and he got out of the car. This did not happen.

It is impossible to shoot a person from that position. nor was there any bloodstain found in his car. But the Session Court announced that its decision was based on a confession. The way that confession was obtained from the boys was appalling: They were hung upside down and given electric shocks on their genitals. After torturing them, they were asked to sign a blank piece of paper. The boys asked: Why should they sign? What was their crime? They were told just to sign, and that it was the job of the police to write up the crime.

When my brother did not sign despite being threatened, they brought his 70 year-old father, who had a bad heart, and told my brother that if he did not sign, then they would torture his father in the same way as he had been tortured. My brother thus felt compelled to sign.

When at last he was taken to court, he finally had some hope that he would get justice. He thought that if he told the truth, then there would be some hope of getting justice. He said to the judge, “Sir, they have made me sign a blank sheet of paper. We have not done this crime. They tortured us for four months and forcefully made us confess to this crime.”

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upon hearing this, the judge said to the policemen from the “crime branch”: “How did you prepare them? Go and prepare them properly before bringing them here.”

The policemen took them away and told them that they had warned them not to talk rubbish. They thrashed and tortured them for another eight hours. At that point, the boys lost all hope.

next time, when he was produced in court, my brother confessed to the crime, saying to the Justice, “We have done whatever crime you say”. And he confessed to all the crimes that were leveled against him.

He has been rotting in jails now for five years. He has still not been given bail, and his case is still pending before the Supreme Court. POTA has been repealed, but the Supreme Court has put a stay order on his case. We just hope that the government helps us and we get justice. And we hope our loved ones will be released as soon as possible.

Professor B. B. PandeyPanel member

until now, we have been listening to you. We, the people of the jury, are human beings like you. We understand your pain. That is why we are sitting on the jury. Personally, I feel if we cannot share your pain, we cannot show you the way; then our being here and our knowledge and wisdom would be of no use.

We are supposed to advise you about how what has happened to you has violated this or that law and about the remedies available to you under the law. You have to initiate certain proceedings to get justice.

If we can advise you on all these matters successfully, then it is good. I do not want to be a gutless member of the jury. I don't want to listen to your ordeals like a spineless person and snap your photo and clap. We will applaud only when you win this battle – when you get justice.

Please reserve any clapping until that moment; until you get justice, no one should clap. For the time being, just raise a helping hand. We are all with you. We understand your pain and suffering. until your grievances are redressed, our learning and education will remain a farce. They will only create a gulf between you and us.

For this reason, I have also told Colin that this public hearing should be changed so as to give you a ray of hope, not to give you a shoulder to cry on. We applaud your speeches, and we take your photos. If we do only this, it will be as if we are celebrating your sufferings. On the other hand, if we can stand with you and reduce your suffering even a little bit, then we will feel that we have proven ourselves worthy of being a jury member.

I have come from Lucknow on the overnight train. I came here not to clap at your testimonies, not to sit in a corner of the stage, but to stand alongside you. And I want that to be our role here. Otherwise, just clicking photos and clapping and just listening to your stories will not achieve anything.


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This is my humble request, because I am also a human being, and I am saddened by your testimonies to the same extent as you. Please don't keep us at a distance. We are also a part of your suffering, since we are citizens of this country like you.

We work in our respective fields, and we are aware of the hassles you face. We know how the police work, how the judicial system works, how the prosecution works, and we know how they attack each other. But if, despite this, we can find a way to solve your problem, then I think our coming here will have been useful.

K. S. Subramanian Panel Member

namaskar. My name is K S Subramanian. I was a member of the IPS [Indian Police Service]. I have just written a book. It is called “Political Violence and the Police in India”. When Colin Gonsalves invited me to come and sit on this panel, my impression was that it was probably because I had written a book on the police from a human perspective that Colin had asked me to come. Therefore, I came. But throughout the morning we have heard presentations from the floor. People have spoken, right from Kashmir, Tamil nadu, Andhra Pradesh, Gujarat, nagaland. We’ve had many different presentations. each one is heart rending. Anybody who sits on the panel would have to think several times whether he should continue or not because, as my colleagues have pointed out, the power that this panel has to provide any relief to the victims of violence is extremely limited. none of us are in the government. Some of us were in the government but we have retired. We have absolutely no powers. So we can only listen to all of you. We can only share your grief. We can only say we sympathize with you. But beyond that we cannot do anything.

But at the same time I feel like Colin has rendered a service to the public by giving an opportunity for all of you to come here to share your misery, share your sorrow, share your anger, share your indignity with all of us. So in that sense it is a very valuable contribution and I welcome it. At the same time, a sense of helplessness overwhelms all of us. We do not know what to do.

Perhaps we need to have discussion by groups. For example, you could separate the victims of violence state-wise. northeastern states – one group. Southern states – another group. Gujarat – a third group. Because Gujarat was a genocide. It is not just an ordinary case of human rights violation. It was a massive violation of the right to life on the part of a large number of people. Thousands of people have been killed. Property worth thousands of crores of property has been destroyed. It is an extraordinary case of hr violations. At the same time, Jammu & Kashmir is again a very, very special case. You can’t combine. You can’t put Jammu & Kashmir and Tamil nadu together and say these are both equal violations of human rights. Jammu & Kashmir have seen 40,000 to 50,000 people disappeared. Is that the right figure? Maybe more. Maybe less. Some figures say 40,000 people have disappeared in Kashmir. We do not know the exact figures. The quantification is not there. And then different forces are

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involved in it you know. Some are civilian police, some are armed police, some are paramilitary police, some are central police organizations, some are naga battalions, some are armed forces. So we’ll have to identify the different forces that are violating human rights separately perhaps. And then document the whole damn thing in a systematic and thorough fashion and see what we can do to give relief to the public.

I think Colin’s idea in organizing this discussion is basically to find methods of providing relief than really, simply only giving people an opportunity to share their sorrow. But I think this requires more thinking on our part. The jury, which is sitting here, we need to sit together separately perhaps and see how we can go further in the matter. It is not just a matter of documentation because the documentation is already there. Colin has all the documentation. everything is there on the computer. The only thing that is happening in this gathering is that people are there to share their misery. I felt so miserable when listening to the lady from Tamil nadu because I speak Tamil myself. I could see the sorrow of the woman. She has four children, her husband has been taken away by the police and has been killed because of some enmity. And how will she look after the family? It’s a terrible thing. It’s extraordinary. It is very, very painful for us to sit here and listen to these presentations. I was mentioning to Professor Pandey during lunch that this is no way to deal with the problem which is coming before us. It is a notion of sorrow and misery and suffering and terrible pain. How are we going to provide relief? I think Prof. Pandey did well to bring up the whole issue in a different way. All of us really share your suffering and sorrow and we do need to think of how we can proceed further in the matter because I think the documentation is extremely painful. I do not know what Colin would say but as members of the jury we do feel very strongly and powerfully the sense of helplessness that all of us feel. I do now know what we should do. I would request Colin to tell us how he hopes to proceed further in the matter because I think the documentation is clear enough. I think there is no further need for more documentation but we need to know how to proceed further in the matter.

Sonia, alias Najma Latif Imphal West district, Manipur

My name is Sonia. My father’s name is Mohammed Abdul Latif. I am fifteen years old, and I am from Phoubakchao Mayai Leikai, Imphal West district, Manipur.

On the evening of 27 June 2007, I was studying with my sister [Samina] on our verandah. We saw a person in civil clothes along with some army men

entering into our house. They arrested my uncle.

When we tried enquiring about his arrest, they reacted in a very bad manner. They refused to answer me. When we demanded that they release our uncle, the army personnel asked us to go back to into the house. As we started to raise our voice, the armed personnel started hitting my left leg by the gun’s butt, which fractured my left leg. We also asked them to show the arrest memo for our uncle, but they refused to show any such memo.


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Without the issuing of any arrest memo, my uncle was taken away by the armed personnel. And as a result of the pain from my fracture, I fainted. When I was conscious again, I realised that I was in a hospital. I was in the hospital for six days, after which I was discharged, [i.e., 3 July 2007]. Thereafter, the local healer treated me. even though I was under constant medical treatment, I have not fully recovered. I have also not received any assistance from my state government.

My uncle, Abdul Gani, has reported the matter to the police department, but the police refused to register the complaint.

Shyam Chander Divaker Bareilly, Uttar Pradesh

The subject is Sri Bansi Lal, Deputy Inspector General of police, Bareilly area; it is about the atrocity committed by him. On 14 October 2002, he called me to his office for a personal matter. There, he verbally abused me and told me that I have to go to jail on 21 October. I complained about him to the Inspector General, the Chief Minister of uttar Pradesh and the Chairman of the national Human rights Commission. On the 21st, Bansi Lal again called me to his office, and he ordered the police to lodge a case against me in court.

On 3 november, he asked the Police Superintendent of Bareilly to give him information about a case concerning dowry violence, which was being investigated at that time. On the 12th, in Bareilly, the case was registered under Section 498 of the Indian Penal Code [IPC], Sub-Section 4 [husband or relative’s cruelty] and Section 294 [obscene acts]. In all, ten people were booked, among them Srimati Preetamdevi from the Moraon “backward” caste. I was also named; I am a Dhobi, a scheduled caste.

The following day, two people were named in the charge sheet. They were the bridegroom’s paternal and maternal uncles, but the charge sheets were not lodged. A month late, on 12 December, a newspaper published an article about the accused. I had also received a notice about the case at my home, a day earlier.

On the 21st, I met Sri ram Gopal Vadav and M.P. Mr. eklavaya and gave them a plea letter. Then, I met Akhilesh Prasad Yadav and gave him my plea letter also.

On 4 January 2003, Srimati Preetam Devi's father, Badri Prasad, attacked me with some men. I sent a plea letter to the Governor of uttar Pradesh, to the Prime Minister, to the Chief Justice of the Supreme Court, and to the Speaker of the Lok Sabha to take action against Bansi Lal. On 13 February 2003, the eight accused got bail from the chief magistrate of Bareilly. Sri Sunil Krishan, Director General of the Indian Police Service in Moradabad, took a statement from me. Srimati Digam Devi accused me falsely in the High Court and identified me as a Dhobi.

A year later, on 26 April 2004, I enquired about the progress of my case from the Director General's office, but did not get any information. I enquired again some months later, but got

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the same reply. On 8 november of that year, I requested his excellency, the Governor of uttar Pradesh, to initiate proceedings against Bansi Lal. The Governor ordered the Chief Secretary in a letter to take action against Bansi Lal. In September of the following year, Sri K. P. Singh, the Additional Chief Judicial Magistrate in Bareilly, accepted my petition and released me from the charges against me under Sections 294 and 498 of the IPC.

The national Human rights Commission [nHrC] asked to see me, as I had also written to them about my case. In 2003, the assistant registrar at the nHrC ordered the Director General of Police in a letter to investigate what happened and to send me a report within six weeks.

On 24 February 2007, I sent a 120-page letter appealing to the president to take action and to initiate proceedings against Bansi Lal. On 6 March 2007, the secretary of the president sent all the letters regarding the case to the chief secretary of uttar Pradesh.

That August, I made enquiries to the chief secretary about the action he had taken on the orders of the governor; he did not give me any information. I asked the president's office about the proceedings, and the following month an investigation was carried out by someone called Sunil Krishan. Despite repeated efforts and many requests to all concerned, I have never received any information.

So, eminent ladies and gentlemen, it is my humble submission that Bansi Lal, the DIG of the police in Bareilly region, tortured me mentally and physically. He has deprived me of my wealth and has abused me because I am a Dhobi. Preetam Devi is a backward caste, a Morao, but I am a Dhobi, a Scheduled Caste. I have had nothing to do with their family affairs.

Sri Bansi Lal abused his power and position and launched a proceeding against me, which was against people’s fundamental rights as ordained by the Constitution. If I don't get justice, the common man will lose faith in you, in the Constitution and in the judiciary. This will lead to people taking the law in their own hands. I will be eternally grateful to you if I get justice.

Maheshwari Katuya district, Bihar

My son was arrested from home and was thrashed by six policemen. They took him to Dhanariya police station. When we went to check on him, we were driven away. The police asked for 50,000 rupees as a condition for releasing him. I told them I was poor; I wouldn’t be able to come up with 50,000 rupees. They said they would kill my son if I didn’t give them the

money. He was thrashed to death in the station.

Rajkishore accompanying Maheshwari Maheshwari was telling us about a custodial death.

Baleshwar Prasad Yadav was falsely charged in a fake case by the police under the Arms Act [the 1959 Arms Act on the regulation of arms] and for being a part of a gang of thieves.


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That evening, the moment he began eating his Sattu [a Bihari staple food], the police came and arrested him. They started beating him while they were taking him to the police station. They also arrested two more people along the way. They released one of them after extorting money.

But Baleshwar was beaten so much that he died. One of the people arrested on the way to the station is still in the lock-up. After causing Baleshwar’s death, the police told the chowkidar [guard] to lodge a false case saying that 150 villagers had lynched him.

When I went to rescue Baleshwar, the police admitted him to the hospital. But the truth is that he was already dead; so this is a case of custodial death. All the documents regarding the case are with me.

Shyam Babu Prasad Katuya district, Bihar

I'm from Patna, Dhaneriya police station, Paghadi village, Bihar.

Baleshwar Yadav was taken to the police station from his house as he was being thrashed. On the way, they caught two other men. One of them was released after he paid them some money; the other one is still in jail.

Baleshwar was killed in their presence in the lock-up. Maheshwari is a relative of ours, so she came to us crying and saying that her son had been killed. Then, she went to Patna Medical College and Hospital with us. The Officer-in-Charge was there on 28 March. We asked where we could find Baleswar's corpse. The OC told us to get lost, or else he would kill us like Baleshwar. But we stayed there, and at around 9 p.m. that night, we were given his body.

A post mortem was conducted, and many VIPs came. The press was also present, and reporters arrived. We cremated the body.

Later, the Deputy Superintendent of Police of Masuri lodged a case at the request of the victim’s wife. The case number is 103. At first the case was booked under Section 302 of the Indian Penal Code, but later it was changed to 304. Then a complaint was lodged; its serial number is 51[c].

Then, leaders in the Human rights Commission investigated. Mr. razzaq filed a case and presented a report. His wife is also working in human rights and alerted the relevant people in different areas. But until now, no proceedings have started. The boy should get justice.

I was also booked under two cases: no. 189 from 16 September 2007 and no. 209 from 4 October 2007.

I was also threatened that if I helped in this case, I would be killed. Still, I have given the District Magistrate a letter containing information about this case. I will include a copy of it with the other documents here.

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Professor S. M. Qadri Panel member

Friends, Professor Pandey made some points this morning, and we jury members agreed with him.

The stories that we’ve been hearing are really sad. They’re so sad that sometimes they made us cry spontaneously, whether it was about Praveena Ahangar’s son or whether it was about the old lady whose son was carried

away by the police and was killed because she could not come up with 50,000 rupees to get him released.

It made us feel that there is no such thing as the rule of law. Since I am a teacher – when I talk to my students about Article 21 or 22 of the rule of law, and when I talk of the judgments of Supreme Court, whether it is the case of D. K. Basu or whether it is a case of torture or any other case –when I hear the stories at such forums, I feel that all we teach is just bookish knowledge which has no practical application.

recently, I interacted with a friend from home. And even if the issues are different in Manipur than in other places, nevertheless, the problem is the same whenever it refers to the Armed Forces Special Powers Act [AFSPA].

In Tamil nadu the AFSPA is not applicable as far as I know; nor is it applicable in uttarakhand and uttar Pradesh. However, even there the attitude of the police is the same as in Jammu & Kashmir, Manipur and nagaland, where the Armed Forces Special Powers Act is in force.

It is right that all of us present here who feel that the rule of law should be established are against the AFSPA. If you give unbridled power to anyone, he becomes reckless and gets out of control.

I pray to God that you never have to face a situation like ours in Kashmir, where you have to prove your identity and where you live. When I come out of the university, a Central reserve Police Force soldier asks me who I am. I tell him that I work in the university. I say, “It’s my town and my home, and you are asking me who I am?”

I don’t blame this soldier; his hands are tied by the political situation. But if the situation remains like this, if the existing conditions prevail, we are [already] witnessing how custodial deaths have increased.

For instance, a man is picked up, and later his wife is called to the police station and told that he committed suicide by consuming poison. When a post mortem is planned, people say under oath that the police do not want another post mortem. Another case has come up in which a girl’s father is arrested and carried away. The man is taken to the jungle and subjected to so many atrocities that it makes you cry.

So why have we kept these laws? Why don’t we say all these laws are a hoax, remove Articles 19, 21 and 22, and all the others from the Constitution? Let there be dictatorship! Let every


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policeman, every teacher, become a law unto himself. They should say to themselves that I want to run things the way I like. If this does not happen like this, it will be like the testimony we heard in the morning, where a daughter talked about the suffering of her father. Tell me, if this is the way things are run, then what will happen to this country?

As it is said in our religion, losing hope is a sin. You must not be disappointed; you must have faith in justice, and when you have faith in justice, then only you can fight any type of injustice and see a ray of hope. Although it is my first experience of attending a tribunal, I definitely feel we can contribute a little bit by consolidating all these cases.

I thought only Kashmiris had to face this problem. Kashmir is always mentioned in newspapers and television, and we do face it. But people in Tamil nadu also face many police atrocities.

In fact, I will invite you to Kashmir so that you can see for yourselves how we are living. I’ll say, don’t take the media’s word as gospel, but come and see for yourselves what goes on there. If I say that I am a Kashmiri, I’ll be pulled out of a bus and asked to prove my identity, but if you say that you are from uttar Pradesh, they won’t say anything to you.

I can recall an incident, which happened three years ago, when a bus service was launched between Srinagar and Muzaffarabad [Pakistan Kashmir]. We had a workshop organized by the Delhi Policy Group and the european union, and I was somehow or other organizing it. We had two foreigners with us, and I think one of them was a German.

The German was a journalist, and a huge fire happened somewhere. He insisted that I accompany him to that place; he said he’d like to take go there to take photographs. I said he could come with us. He had a long beard, and there were two or three of us traveling with him from the university. At one point, the security forces stopped the car, and they didn’t say anything to me, but they caught hold of that German guy because of his long beard, saying he was Salahuddin [a notorious Kashmiri terrorist]; that was the situation.

So after this, how will you have faith in the rule of law? Listening to all these testimonies is very necessary, and HrLn has done a tremendous job: now all these cases have to be consolidated and shown to the public to tell them that custodial killings are happening on a large scale.

You can access the official website of the national Crime research Bureau, where you will find, with a lot of effort, only two three cases of custodial killings. But now I see that in my session [the plenary session] alone, there are two three cases of custodial killings. So, documentation will help a lot.

Secondly, what I could gather from the victims who have given testimonies was that they came here with a lot of hope that HrLn and the other organizers of the tribunal would be able to do a lot for them. As I, myself, and the other panel members have already said, we are not in a position to do that. We are not government representatives, nor are we representatives of ministers. We are independent people who can think and understand.

What we can do? I do agree with my other colleagues here that our role is very limited. Our role is to create awareness, and of course HrLn has a role here, too. They can guide the people and help raise their voices.

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When they publish the testimonies in a book, people will come to know about the atrocities: the killings and the rapes in Kashmir, Manipur, nagaland and Gujarat, with Dalits, tribals and others. Then they will at least feel that all is not well in this country – that there is some weakness in the rule of law.

After that, if the rule of law is still not stringently enforced, then I’m sorry to say that this country has a dark future. We all need to work together to restore rule of law. This can be restored by such tribunals and programs.

Thank you.

Senior Advocate Navkiran SinghPanel member

Friends, it is a privilege for me to be on a panel for this meeting, where we have tried to bring people together on one stage where they are able to discuss their agony, their experiences and their cases of human rights violations. And we have seen that these people who are from different states have come to think that these atrocities are happening to themselves alone.

The way the meeting has been conducted has proved that there is no state in India where atrocities and injustice are not happening and the principles of fairness and justice are not being violated – there is no such state.

So, our brothers who have come from Kashmir must have realized that they are not the only ones in this country who are being framed and denounced as traitors and terrorists. Today, even if somebody is called a “Maoist”, he is also actually being called a traitor. People involved in autonomy and independence movements, those involved in movements to save their culture, or against regionalism, are all being branded as terrorists and traitors.

It is quite clear that all is not well in this country. Those leaders who say that we want to make India a superpower – an international market to attract foreign customers – are also not depicting the inside picture of India as it is in reality. Today, we are trying to find a way to share our woes and to stand up against the oppression of the establishment, or the government.

I want to discuss the points that have come to my notice. I would like to share with you what I have learned from my experience as a practicing advocate in the Punjab. I hope my suggestions will be considered in tomorrow’s plenary session: how terrorism is spread and how people are labeled as terrorists and how they are kept illegally in custody and tortured and then later killed in fake “police encounters” or made to “disappear”.

All these trends have begun throughout the country, but the saddest thing about these types of incidents is that we are not able to fight against these injustices together, and the people in power know that people who are divided cannot face up to them.

I say this in every conference and meeting. We have to do more than organize conferences. But until now, from my experience, things do not go beyond conferences. I’ll repeat this again. We have to initiate coordination in such a way that we can learn from each other’s experiences.


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We should help each other over legal issues, and we should create a common website where cases are highlighted from all over the country. The powers that be will then realize that information about atrocities will get known about outside the country. I feel if we do something that can shake the minds of the people in power, then they will take steps to tame the state authorities.

I am not saying we should go against the nation or against the image that India is “clean”. I’m just saying that it is in the interest of the nation that the country should live up to its clean image. We will be the people working in the interest of the nation so that it is possible to control the police in some manner at least.

You will be pleased to know that since 1995 there has been no false “encounter” anywhere in the Punjab. Currently, there have been several incidents perpetrated by people who demand independence, and it is not unlikely that there will be violence in the Punjab. But since 1995, there has been no fake police “encounter”.

In 2005, I went to Kashmir. Sister Parveena, who is sitting here, met me with another advocate. I shared my experiences with them and told them that if the people here say that they want complete independence because their culture is different – we don’t want to live either with India or Pakistan – it is completely fine. You may choose to live separately or with somebody, but use the legal system. Whatever legal system is provided – whether it is utterly inconvenient or useless, even if nothing comes out of it – if you use the system, you will have some documentation with you. You can prove with that documentation that the legal system of this country is a failure. So we should always use the system and know how to use it. We should create a common platform for this purpose.

In the Punjab there have been 50,000 police “encounters”. I don’t know about the figures for Kashmir, but I think they must be the highest of all. In the Punjab, even if we make a conservative estimate, there will be about 50,000 people killed, out of which 35 to 40,000 are missing. It is a big figure, and the time period is between 1984 and 1994. Over ten years, 50,000 people [have died] according to us, although it is a rough estimate.

We have undertaken many of those cases. In some we got some relief, and in some we didn’t. But we did not start any case without doing its documentation or without reporting it to the national Human rights Commission or without taking it to the Supreme Court. It is different in the Punjab. The conditions in Punjab are good, people are educated and have a decent income, as well, and the Supreme Court is near, as well.

I request everybody to make every effort to avail themselves of the legal remedies available. If nothing comes out of trying the legal remedies, then at least we can claim that the legal system in this country is not running according to the hopes and aspirations of its people.

So, I request this gathering to form a coordination so that whenever any lawyer or human rights activist faces any problem, they can learn from the experience of people working in that sort of particular field or problem. These experts who have dealt with such cases as lawyers or extremists

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should be contacted when a problem arises. This will be a great help to people, for example, facing the same problems we faced in Punjab and therefore can benefit from our experience.

If we can make an organisation where we can give people free legal aid, then it would be splendid. But at least we should have a common platform where we can share our experiences, and on that platform, as I have said earlier, whatever cases come in the category of illegal custody, false encounters, tortures should be dealt with by first collecting the testimonies of the victims. We should start compiling from today and put it in a website so that the human rights activists of different states can avail of them. If they do not have access to electronic media, they can purchase them from the market. So, such cases should be highlighted, so that we can show the system that if you are helping each other to violate human rights and are also giving protection to each other, then we human rights defenders are also ready to help each other staying united. We will want the legal system to work on the legal parameters so that human rights violations decrease.

With these words, I would like to conclude my speech. I am thankful to Colin and to all the organisations that have given us the opportunity to share our views. In the future, if our assistance is required, then I – being the General Secretary of Lawyers for Human rights International –promise to help. We have 300 to 400 lawyers working in our organisation who work throughout the whole of Punjab. We also have a website, which has the details of the cases we dealt with. If you ever feel that you need our help and think that we have that expertise, we are there to help you.

Thank you very much.

Professor B. B. Pandey

I have earlier stated my views. I believe that the success of these types of tribunals depends on two prerequisites: First, to present the situation before us, to increase our understanding of the matter and expose it to us. As far as exposure is concerned, the tribunal is documenting the testimonies, which is an achievement in itself, and as far as exposure is concerned, when we sit together and discuss the matter, a certain energy is created. When we suffer silently, a sense of hopelessness and inability prevails within us. But when we sit together and discuss a matter and try to derive a solution, then a current of energy is created which flows within the group. As far as the understanding of the situation is concerned, these sort of tribunals should enhance our understanding; we should enhance the understanding of the panelists, as well as the victims.

And as far as I understand, today, I have noticed two or three trends in the matter of human rights violations which are quite surprising. One trend that is very surprising is the outsourcing of torture. The authorities are creating such situations where people lynch a thief and later say, “We haven’t done anything; it is the public who got angry and lynched ten people.” In incidents like these, torture is outsourced. Then a police report is give that the policeman did not drag him by tying him to the motorcycle, but was saving him.

Secondly, torture is also directly outsourced by creating organisations like Salwa Judum, whereby you engineer splits between the people and turn them against each other. This is


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known as outsourcing of torture. recently, I read a very good and well-researched article in Indian Express, where the author, Pratap Bhanu Mehta, has critiqued the Salwa Judum and said that this is a gross violation of constitutional law and international law. Also a very good editorial article has been published in the Times of India, which is not my favourite paper; it is the first time the paper has come out with such a good article. It was called the “red Scare”.

To start with, the government needs to make it visible in the region. It has to convince itself that the police situation cannot be the only symbol of the Indian state. The police is not the only symbol of Indian state; the welfare and democratic institutions are also its symbols.

Only if we come together, then can we change the face of this situation for the better. Only we can change the anti-people face of the state. Because if we only keep on criticising, nothing will change. It will only change when we take part, and have active involvement.

We might face difficulties in the beginning. When we went to give legal aid to the inmates of Tihar prison, we faced many difficulties. People said that, “These people have not passed law, and they do not have a practicing licence.” But we did not give up: We persisted in our efforts, we started taking cases, and slowly, some courts also accepted our cases.

now the question is that to devote our strength to help the victimised people of the society, how active we are and how many mechanisms can we use. From this point of view, HrLn has initiated the process of documentation. Secondly, we should be determined to take active part in the whole process. For this reason, I said earlier that I do not want to sit and be a mute witness to the suffering of the people. I want to jump in the fray. I want to help these people as much as I can.

Thank you.


I fully endorse what Professor Pandey said and can add nothing more.

I was just discussing with him that I used to think that there are certain states where political disturbances and problems happen, like Kashmir and northeastern India. But from what I heard this morning about Jharkhand and uttarakhand, we learn how police atrocities and other disturbances prevail in these other states, in South India, too. We feel pain at these events.

Through their testimonies, people are telling us about the injustices they have suffered. We need a solution to these problems. Our role here is to give you alternatives or solutions. What has been our contribution to the juridical system? How can we help the victims who are here and should be our concern? They are part of the issue.

I definitely agree with Professor Pandey that we must do something. HrLn is an organisation that is looking after human rights, and as far as I know in terms of awareness campaigns and litigations and other things, they are playing a big role. Therefore, these young lawyers and volunteers have to play a willing part, and they will have to take every case and discuss it in the central level. Then, they will have to tell the victims that these are the alternatives you can explore, and this is how we can go ahead.

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I was just talking to Professor Pandey about this matter in the context of Kashmir. I don’t know about other states, but our High Courts and the other courts pass orders that are not implemented. He said: “Why don’t you go to the Supreme Court?” I still have faith in the Indian judiciary, even today. And organisations like HrLn can help in securing justice for affected people.

There is no question of celebrating the grief of these people. We are, in fact, part of your misery. We are with you. As I said earlier, your worries are our worries, and we are not separate from you. This is why we are sitting here. Don’t think that we are different from you.

For example, as this lady from Tamil nadu said about how her husband was tortured and how she was subjected to injustice: every day, several cases like these come before us in this country, and these incidents will keep on happening unless the State follows the rule of law.

As long as the policemen think they, themselves, are the law, these incidents will keep on happening. To counter that, we have to work together.

HrLn will help to play a role, and I’m sure the other jury members will agree that we will have to come up with certain concrete suggestions, submit them to HrLn, and then of course discuss the things with you. These are my words, and thank you.

Senior Advocate Dhairyasheel Patil Panel member

After having heard the victims, activists, and other panel members, I think there are a couple things we should not miss at all.

number one is: If we are breast-beating about why the police are working like this and why the State is behaving like this, I think we are being very innocent. We are missing the true nature of the State that we find. even though Srimati Sonia Gandhi introduced the word “socialist” to the

Constitution’s preamble with the help of the 42nd amendment, we were never a socialist democracy. We are a classic example of a parliamentary democracy as we find it in a capitalist system. So, therefore, let us not pose ourselves to be socialist.

And if we accept that we are not a socialist state, then the corollary that follows is the nature of the State: The handiwork of the State, in particular the arms of the State, are used to suppress people’s movements. So, whether it is the army or the law enforcement agencies, or even the police, they would behave in the manner in which they have been behaving. I, for one, am not at all surprised at the atrocities that we come across throughout the country. So, let us not count the trees and miss the forest; we should not neglect the main point. We should remember that our country, the republic of India, is a capitalist democracy; thus, the state apparatus is designed towards suppressing people’s movements. This will continue forever, and we should also keep in mind that this is not unique to India. Please do not forget this.

number two: Many people have been telling us about the atrocities by the police. Sometimes, the government fears the police, too, as they believe that the police have become domesticated, and therefore, the army and other law enforcement agencies should be released onto the public.


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number three is: What is the sum and substance of the problem being faced by the people, whether it is the Adivasis or the disadvantaged sections of society or the activities and movements carried out by these people? What is the reason? What is the root cause? unless we find out the root cause, I do not think we can succeed just by methods of law.

Some of my friends have shown a lot of faith in the judiciary. For the last thirty-five years, I have been practicing law, and I have also been the chairman of the Bar Council of India, and therefore an insider in some respect. I also know how the courts work. Some had said that you will not get “justice” in courts, but what you get in courts is not “justice”. This is very true, according to me. I have seen some judges: When a person like Colin comes to court, they refuse to listen to him. They do not have any kind of patience with people like Colin. They say that all the judgments and laws being used are outdated. So forget about the faith in the judiciary.

What I was talking about was, after having heard [from] so many people about so many injustices, what is the sum and substance? This can be put into one line: What the common man is saying today is, the national flag and the national anthem are okay, but what about our share of the Independence cake? Where has it disappeared? It has been stolen, it has been kidnapped, it has been hijacked by those in high places. And, therefore, we should fight ‘till the very end. This is the sum and substance, or the message, of what we have been hearing through out the day.

And this will happen: I have great faith in the people’s power. And as long as there is injustice in any society, there will be a revolution. The first revolutionary of humankind was a slave. This was 75 years before the birth of Christ. Who was he? He was Spartacus. He did not succeed – he along with his comrades were killed by [those in] power. But a day came when slavery became a page of history. With this kind of optimism we should close the session, and coming together meant giving a lot of strength.

Meher Singh Baitur district, Madhya Pradesh

I am a poor person. On the 17th, I went to the small market, but I got there late – around 9 p.m. While I was there, the police went to my home. They beat my sister and daughter and tried to molest them; they abused them as well. My sister told me all about it.

Shamim Modi accompanying Meher Singh

He is talking on behalf of the victim of an incident in which the police, as well as the revenue and Forest Departments [of the State], encroached on the tribal forest land.

They have what is called a Task Force, which is supposed to evict people through encroachments. Godepur Mal was singled out because it has a very strong link to a Sangathana [a general term for a local community group], and they have been exposing the corrupt

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practices of the police and the Forest Department. We, too, have been raising issues about the non-payment of wages in Baitul District.

under the guise of an eviction, the police came at around 9:30 to 10 p.m. with a force of between 50 to 60 armed people in four or five jeeps and around seven motorcycles. Meher Singh was in the local market. All the policemen were drunk. Because of this, the first thing they did was to go to his house and molest the women. It went on for a very long time. The women started shouting and pelting stones at the whole team in self-defense; then the police ran away.

After they went back, the first thing they did was to register cases of dacoity and attempted murder on 11 tribals. Meher Singh was also named, even though he was not in the village at the time. All the people who are active in the Sangathana were also named.

The cases went on. Hanoo, who lived in a different village, was also one of those named. He is here and will put his case before you. He was not present in Godepur Mal. Hanoo’s name was added to the case one month later. He was arrested and tortured in police custody. He was put in jail for almost five months.

Only after we approached the High Court in Madhya Pradesh did the district judge in Baitul enquire into the incident. After that, the charges of dacoity and attempted murder were dropped.

Thank you.

Hanoo Madhya Pradesh

We have been living in the forest area for the past 30 to 40 years. And in the name of evicting us from the forest area, the Forest Department officials took all our tools and jewelry from us. They kept me under remand for a long time. For three days, the officials made me do many vulgar acts [sexual favours]. I was also beaten up while I was in jail. I could not

describe this in court, as it was very disgusting. I have about 20 cases registered against me. They have continued to torment us in this manner.

Kamaljit Kaur Mohali, Punjab

On 18 March 1993, the Station House Officer [SHO] of Suhana called my husband [Sukhdev Singh] to a place just adjacent to our town of Mohali. He went with a friend of his to the police station. He [my husband] was then held back at the police station, while his friend was asked to go back. Sanjiv Gupta the SSP of ropar wanted to meet him.

Sukhdev Singh’s younger brother visited the police station for the next four days. The SHO of the police station told him that the Senior Superintendent of Police of ropar, Sanjiv Gupta, was


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yet to meet him. After being detained for ten days at Suhana, he was transferred to the ropar Police Station for a month. When my husband was transferred back to Suhana Police Station, my brother-in-law and my daughter often went to meet him. The SHO, on my request, arranged for a telephone conversation with my husband. My husband, along with his brothers, was detained up until 5 July at Suhana Police Station. I was then informed that my husband was transferred back to ropar, and since then his whereabouts have been unknown.

We approached the Director General of Police, as well as the Chief Minister of Punjab, but it resulted in nothing. For almost three years the police kept on assuring me that my husband was with them and that he would be released soon. We waited up until 1996, and then we filed a writ petition in the High Court, which resulted in a Central Bureau of Investigation [CBI] enquiry. The CBI in its investigation charge sheeted the SHO of Suhana ramesh Chander for abduction of a person with intent to murder. However, the police officer at ropar was exonerated. There was an appeal to this case, as a result of which the case is still on, and no decision has been made.

Yashpal Roorkee, Uttarakhand

At around 11 p.m., two jeeps full of police came to arrest my son. Due to the noise, the villagers got up to see what was happening. The police started beating us. My children were sleeping in the other room, but we were forced to tell the men where they were. My elder son, Sunil, was arrested.

They told me that a payment of 70 rupees would be sufficient. I asked why they were doing this, and they answered again that 70 rupees would be enough in order to release him. I could not stop the police from taking my son away. We asked them where he was being taken, and they told us: to Kotwali Civil Lines Police Station in roorkee.

We tried to go with them, but they wouldn’t allow it and told us come the next day. We therefore went to another police station, but they told us to leave. The next day, at the police station, the police told us that our son was not there. On the 5th, I came to know what had happened to him, when we got a phone call from roorkee Police Station saying that our son had been killed in an “encounter”. I fainted. The police told us to collect his body and to complete the funeral proceedings as soon as possible.

I complained about the police to Manavadhikar Aayog [a welfare organisation]. After a few days, we got a letter from the District Superintendent of Police. Both the Mangalore and roorkee police took statements. Since then, they have done nothing.

What I want now is that the police are stopped from torturing us. Something has to be done against these policemen.

Thank you.

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Deepanker MajumdarWest Bengal

My younger brother was a victim of an “encounter killing”. On 15 September 1997, the police arrested him and kept him in the lock-up. Then, they got him admitted to a hospital under the name of a policeman called Lakhan Giri.

The police station has all the records as to why they arrested my brother. But the state courts, and even the Supreme Court, have not listened to us. Mr. Colin [Colin Gonsalves, head of HrLn], filed my case, and the judge gave only a two-line judgment, saying that the Special Leave Petition was dismissed. no one listened to our statement. Instead, the accused police personnel are being promoted: Those who were Sub-Inspectors are now Inspectors. Those who were Inspectors are now Superintendents of Police.

It was mentioned clearly in the court findings that the police were doing their duty. The same thing was mentioned in the charge sheet. It was also mentioned in the national Human rights Commission’s findings. It was on the basis of this “evidence” that my brother, Partho Majumar, was arrested by the police and kept in Howdah Police Station. He was treated in a hospital under the name of Lakhan Giri. He was discharged on 6 September 1997; Arbind Khusari took him away.

In the Human rights Commission’s findings, it is written that Arbind Khusari took him from the hospital. He is not on a list of accused persons, nor is it written in the police’s First Information report. I have filed a habeas corpus petition in which all this is mentioned. For one year now, the High Court has given a stay order on the case.

I have come here, but I don’t know whether I will be heard. I have written to the State Human rights Commission, which has all the evidence. But no one is listening to what we or the lawyer are saying.

I have been waging this struggle for the past ten years. On 15 January, my mother died due to the pressure all this has given us. She did not get justice. That is my prayer.

Thank you.

Abhijeet Datta accompanying Deepanker

On 15 September 1997, the police arrested Deepanker’s brother, Partho Majumdar. Initially they admitted him to the hospital under a fake name, using that of a policeman called Lakhan Giri; whatever the reason, the police did keep any record.

Deepanker filed a habeas corpus writ application before the Kolkata High Court, which directed the West Bengal Human rights Commission to initiate an inquiry. The national Human rights Commission found that the Criminal Investigation Department needed to look into the matter further and lodged a First Information report. ultimately, a case was registered


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under Sections 366, 201 and 64 of the Indian Penal Code against 11 police personnel. It ended with a charge sheet in 2000 and 2004. A trial was conducted in the Sessions Court against the 11 policemen, but the matter is still pending.

The victim’s family tried to get the policemen’s bail cancelled, but they were given anticipatory bail; they are still working. The victim’s family went from the lower court to the Supreme Court, but the accused persons are getting promotions. And the victim’s family is still waiting for justice.

For the past 38 months, the trial has not been proceeding through the Sessions Court, despite specific directions from the High Court, and even from the Supreme Court, that there should not be any further adjournments, and the trial should proceed. even the lower court passed an order in favour of the victim’s family that two additional police personnel should be added to the list of accused persons. Concerning that order, the police personnel prefer to go before the High Court, and the trial has been stayed for one year.

The victim’s family is still suffering. The victim’s brother has come with all the relevant documents and with an affidavit, which he is placing before the tribunal.

Thank you.

Manthuri Sarada Andhra Pradesh

My husband Madhuri naga Bhoshanam was working with the Janashakti Party, which is now affiliated to the Maoist Party. The police have arrested him several times. The first time he was arrested, he was bailed out. nine months later, he was arrested again.

After he came out, his health was not good, and he remained in the house for some months. When he recovered, he went back to the Maoists. He then went underground and carried out his activities. He fell sick again. While he was getting treatment in Hyderabad, the police arrested him. He was questioned, tortured and shot by the police in Hyderabad city. They took his body to the forest and claimed that he had died there in an “encounter”.

I went to see his body when it was taken for the post mortem. He had been brutally beaten and had bruises everywhere. His nails had been removed, and you could see wounds all over his body. At first, they did not show me the body, even though I asked them too. Only when we asked them forcefully did they show him to us, and we all saw what had happened to him.

I am blessed with two children: One is a boy, and other one is a girl. My father-in-law used to look after the family. After the police killed my husband, my father-in-law died of a heart attack. We were left with nobody except my husband’s brother. The police have “encountered” him, too. now, we are left with only females in our house. There is no male person in our house to look after us.

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Karakawa Sister-in-law of Manthuri Sarada, Andhra Pradesh

My name is Karakawa. I am the sister of the deceased.

My brother, Madhuri naga Boshanam, and my younger brother, Kanakayya, were both in the Maoist party. Our village consists of at least 200 families, and in every family, one of the members has joined them. In our village, it is customary to be in the Maoist party. Most of the village is pro-Maoist or pro-Janashakti.

The police came to the village, and they conducted a small meeting, where they asked the families to tell them the names of those who are active in the Maoist party, saying that they would otherwise take strong action against us. So in that context, the police took naka Boshanam’s brother, Kanakayya, to the police station. He was hung by his legs from the fan and was tortured by the police in the police station. He was tortured several times by the police. One day a large troop of police came and arrested him while he was working in the field. There and then, they tortured him and killed him.

A postmortem was carried out on Kanakayya’s body, and then his family was asked to identify him. The police knew whose body it was, but still they asked them to identify the body.

A case has been filed against these people, and it is still passing through the court.

Thank you.

KamlaHimachal Pradesh

I belong to a Dalit family; we are very poor. We have six children, and our piece of land is not sufficient to feed us. My husband remains out of the house searching for work.

On 26 April 2005, my husband was out, and I had some guests in my house. I was five-months pregnant at the time. In order to feed them, I went to the

house of my co-villager Mauji ram to buy fish. Mauji ram advised me to go to the river Minus and fetch fish from his brother, who lives near there. I bought 60 rupees-worth of fish from Chet ram, Mauji ram’s brother.

On the way back to my house, Mauji ram waylaid me and raped me while threatening me with a sickle. The path passes through jungle, and the village is some two kilometers from there. After he had raped me, he threatened me by saying that if I disclosed what had happened to anybody, he would kill me. I felt very threatened, but I told the guest in my house what had happened.

The following morning, my son was very sick with dysentery and a very high fever. I had to take him to the doctor some five to seven kilometres away.

On 28 April, I went to the police post at Shilai early in the morning. I expressed my intention to lodge a complaint. The police officers who were there told me to come back the next day. The next day, I again visited the police post and was told to come back the following day.


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When I went back to the police post, I saw that the accused, along with his brother Chet ram and the president of the panchayat, was also present. I was advised by the people present there, including the police officers, to reach a compromise on the matter.

upon my refusal to compromise, the lady police officer – I don’t know her name – started beating me badly. After beating me, I was made to sign a compromise paper, and I was given 1,100 rupees compensation and 20 rupees for a meal.

When I got home, I told the other women in my village what had happened. They were furious, and it was decided that a delegation would go and meet the Superintendent of Police [SP] at nahan, some 60 kilometers away. I was not in a position to travel, so the visit was deferred until the next day.

On reaching nahan on 1 May, we could not meet the SP, as he was absent. Instead, we met his deputy. The Deputy Superintendent of Police [DSP] assured us that he, himself, would investigate the matter. He disbelieved me on the grounds that the place I showed him was between two rocks, and it was a steep place; the DP concluded that rape was not possible at the spot that I indicated to him.

Later, I realized that because of bodily pain and exhaustion, I pointed out the wrong place. The First Information report [FIr] that was prepared was not investigated; instead, a cancellation report was presented. The lady police officer was transferred.

I was lucky to get the support of local nGOs. I approached the national Human rights Commission and wrote to senior police officers. I have not received any response until now.

I was assisted by HrLn, and an application was filed before the Magistrate at Paonta Sahib. In 2007, a FIr was registered. All I know is that the accused is back in the village after he got bail.

I am not Mauji ram’s only victim. There are other women, also, in the village. My quest for justice continues.

Manoj Naithani Roorkee, Uttarakhand

I made a written complaint about peoples’ rights in the Janta Darbar [public meeting] of our Chief Minister, Sri Bhuwan Chandra Khanduri. I also complained about the Superintendent of Police of roorkee. The SP against whom the complaint was made was himself given the power to investigate the matter.

One month later, he sent the police to my house as if I were a criminal. He called me into the police station and said, “Who do you think you are?” and “What you are doing? On what basis have you complained about me?” I told him that it said in the newspaper that he was drunk while driving.

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There were two cases: One was noor Hasan, who was a mechanic and was killed by the police in rahmatpur Village. The police also threatened his brother. The other was Ashoka, who died in police custody. He was going for trial, and then suddenly blood came out of his mouth, and he died on the spot; the police did not give us even his post mortem report. These are the cases that I raised in the public meetings.

The Superintendent of Police called me and asked who had told me that what was written in the newspaper was correct. He asked whether the reporters questioned me before publishing the newspaper. I told him, “The press is the fourth pillar of the Indian Constitution, so why would they ask one before publishing anything?” to which he replied that, “They may be the fourth pillar, but they published without checking their information first.”

Then, he snatched the documents that were in my hand and threw them on the floor. He forced me to sign a paper that said I do not have any complaint against him.

Thank you.

Viktal Hedge accompanying Adarsh and Prashant

I will provide a very brief background to the case. These are two young boys who come from a remote village deep inside the forest of Karnataka, which is declared part of a national park.

For nearly ten years now, eviction notices have been issued to the tribal people living there. Two people have committed suicide, and a democratic open struggle called Kuduremuka rashtreeya udyan has been started to oppose the evictions.

Several years later, the naxalite movement entered the forest and took up the same issue as the local people. Since then, there have been about 12 “encounters”. The most recent one involved the killing of these boys’ parents. They were not naxalites; they were just tribals. But all of them were killed, except these two boys.

Adarsh and PrashantKarnataka

Prashant: On 10 July, in the morning,when we were still sleeping, the police knocked at the door. First, they asked for some coffee, and when mother was making it, I heard gun shots. I ran out from the back door and went to my uncle’s house, which is a couple of furlongs away. I heard several gun shots. I stayed at my uncle’s house until the afternoon, when

people started gathering, but no one was allowed to go near my home. We heard the news that about five persons had been killed, including an activist and my parents. I did not go back, as I was afraid.

now, there is no one left and my house is abandoned. Our land is now in ruins. now I stay with my uncle. I am orphaned, with only my younger brother, Adarsh, who is 11, surviving. On that day, he was away, as he is studying in a nearby village.


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Sajitha Basheer Kerala

I run a mobile store at Kaloor Junction, and my husband is an employee of the Bank of India. My family was friends with retired Superintendent of Police, Mr. Jayaprakash, who had worked with my uncle, who was a policeman. Mr. Jayaprakash’s wife, Prem Prasana, registered a case of dowry harassment against him, and it named me and my husband and my son, Jitin.

The complaint had no weight with regard to the dowry harassment, but my family was still arrested. I suffered torture at the hands of the police on two occasions.

On 24 February 2007, a policeman who was in plain clothes and drunk came to my mobile shop and told me to get into the police jeep. I asked the person to identify himself. The policeman started to abuse and threaten me. People and bystanders nearby came to enquire the incident. Seeing the crowd, the policeman ran away.

I went to make a complaint against the policeman, Mr. Sura. I asked to file a First Information report [FIr] and a blood test to verify the alcohol content in his body. The complaint was finally registered after some higher authorities intervened, but not the FIr.

On 22 March 2007, some police went to the branch of Bank of India where my husband was working and dragged him out of the bank manager’s office and put him into a police jeep. He was beaten up in the jeep, and the police officers said that he was being arrested for corruption at the bank.

On the same day, the police came to my shop and arrested my son, Jitin; I was also arrested. I was at home washing clothes and was completely wet. I was humiliated by being made to change my clothes in front of the policemen. I was beaten up and forced into the police jeep; all of us were beaten.

We were put in the police lock-up, and I was called for questioning on my own. The Sub- Inspector told me that if I responded to their sexual advances, the family would not have to suffer. In the evening, I was taken before the Magistrate and granted bail on the grounds that my 14 year-old daughter was at home alone.

The next day, my husband was handcuffed and made to walk two kilometers to the Pala Government Hospital when he requested medical treatment. My husband and son were released on bail in the evening of that day [23 March 2007] and admitted for medical treatment in the government hospital, where they stayed until 27 March.

The police case against me is still standing. At the same time, I have registered two cases – one against Sub-Inspector Sura and the other for the police torture. In September 2007, a notice was sent to me stating my complaint was false and that the police would not register any FIr.

I have made representations to the Home Minister and to other authorities. My husband was suspended from work and later transferred from the Kaloor branch.

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M. S. Giri PUCL, Andhra Pradeshrespected and distinguished members of the dais, dear brothers and sisters, this morning we have been hearing the victims who have faced police torture alone, and nothing else. In a democratic country, when we cannot feel democracy, why do we need democracy? When the society is brutally butchering the naked truth, then why do we need democracy?

With a lot of pain, I have been working in this field for the last 25 years. And in the last 25 years I have heard thousands of cases of torture, but I was able to book the perpetrators in only one case, after fighting for nine years. In that case I had to work from the village level to the district level, from the district level to the capital, from the capital to the national capital, and it took me nine years. I lost all hope in that case, and I thought that there won’t be any justice fighting for these cases, but at the last moment, I had tried to approach the Chief Justice of the High Court of Andhra Pradesh, complaining about the judge of the Mahila Sessions, that this is being manipulated. He took up the case, studied the case, and the result was that five of the perpetrators – the police people – received life sentences. This was the first time the perpetrators – that is, the police – had been punished.

And now, I have been working with these people for the last two years in an nGO working in nine states on prevention of torture in India – on public awareness and state accountability. In these two years of our work, we have recorded and done fact-finding on 6,000 cases of torture. In these 6,000 cases, about 6,000 legal interventions have been made to the nHrC, the SHrC at the state level, and some of the complaints have been addressed to the courts. Out of all these cases – the nHrC being a commission and not a court, the SHrC being a commission and not a court – we did not find any result, but they made recommendations to the government to take necessary action at their end, and all these complaints were forwarded to the perpetrators. And the answer from them is: “We have done this, we have done this, we have done this,” and it is over.

And the police, while taking up the cases, know that they can torture. Their work is to investigate it and to present it before the court. It is the court that punishes the people, and not the police. The courts have become defunct with the lack of evidence, and people get the impression that when you go to the court you don’t find any justice. And so, they keep these police to act as courts.

The police station has become a small panchayat court, where the police think that they are the ones who should settle the law, who have to solve the disputes. This is the worst situation in a democracy. If this is the situation, where do we have hope? Where do all these victims have hope?

These victims have come from all corners of India to Delhi. We are hearing people crying here, and will their work be represented? Will their work be testified? Is there any hope? We have gathered here to listen to them. We have gathered here to hear them and tell out the judgment, as a public hearing – since the courts could not do the job, the police could not do the job, the government could not do the job. We need to think of this and act and extend our solidarity in such a way that some action, some answer comes out of all these things that we are doing.

Thank you very much.


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Modkan Joga Dantewada district, Chhattisgarh

I am from Dantewada district. On 10 February 2006, the Salwa Judum attacked my village. The Salwa Judum and police forces surrounded our village. They went about destroying and burning our houses. They started beating up the villagers, and they also executed a village elder by the name of Mardkam Arma.

After the village was burnt and destroyed, the surviving villagers fled our village and hid in the nearby hills. We eventually made our way to the Andhra Pradesh border and crossed over. As of now, we live deep inside the Andhra Pradesh forest reserve.

Sitara, an nGO, provides us with medicines, and apart from them, no other organisation helps us. In my village I was very prosperous, as I had 20 acres of forest and many goats, pigs and chickens. After the Salwa Judum attacked us, we became very poor, and now in Andhra Pradesh we have to beg for our food. The Salwa Judum took away 25,000 rupees from my house. And now, in Andhra Pradesh, we are unemployed as the government thinks of us as naxals. The local police and forest officials also regularly beat us up. In Andhra as we do not have any income, we are forced to bathe in the nearby sewer and drink dirty water.

Baljeet Kaur Chandigarh, Punjab

The police arrested me on 28 January 2004. I was returning from the Guradwara in an auto rickshaw, when I saw two men in civil clothes entering the auto rickshaw. I had no idea that these men were policemen, as they were not in uniform. After some time, these two men got off the auto rickshaw and forcefully picked me up and dumped me in another car. At that point of time my four-and-a-half year-old son was with me, and he was aware of the place where they had picked me up from. They first dropped my son home and then took me away for torturing. During those days, I was working in a school.

The police then took me away to Chandigarh, where they tortured me for four continuous days. They tortured in such a bad manner that all my lower portions were damaged. They also hung me from my hands and gave me electric shock. I remember their names: Sumer Singh Saini, D. S. P. Sagar, r. P. Singh, K. P. Singh, and S. P. Gaurav Yadav. They did not really care for my life. In their understanding, I was already dead, and they were ready to dispose of my body.

My other son and daughter went to the lawyer and informed him about my disappearance. They also went to the police station, but were scared away by the policemen. My children did not lose hope and went to the lawyer to inform him. My husband was in jail and questioned why I had been illegally detained. The lawyer filled a writ petition in the court asking them to show me. The police from Chandigarh very cleverly took me to the court. I was three months pregnant when this incident took place, and as a result of the physical and mental torture, I

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suffered a miscarriage. They jailed me because they thought I was a criminal suspect; they tortured me a lot.

I hate my life. There is no respect for human rights in our country; no one gets their human rights. Our independent nation cannot guarantee us our human rights. My only appeal to all of you is that whoever has suffered at the hands of the police: Please do not stay quiet about it.

Three high-ranking Indian Police Service officers from Chandigarh and the Punjab questioned me. My case is still going on. One of the courts let me out on bail; however, the police questioned the bail issued by the court and tried to put me behind bars. My life is still under threat.

Shamim Modi Shramik Adivasi Sangathan, Madhya Pradesh

We have been working in places such as Betul, Harda and Khandwa for the past 13 years. The reason why we started working with them was because a lot of atrocities were being committed on the local Korku tribes. These tribes are very close to the primitive tribes, and their situation is very abysmal. The various departments of the area, such as the Public Works Department and

the Forest Department, hire the local tribal people for their work and do not pay them their wages. non-payment of wages is the most common problem in the three tribal areas.

The police, along with other departments, take a lot of bribes, and non-payment of bribes results in more atrocities. A new way of tormenting those who raise their voices is by burdening them with falsely accused crimes. Villages such as Bhandar Pani and Dhawana Kherda have been burnt down twice by the Forest Department, just because they asked for their due of 1 lakh rupees from the Forest Department. After the payment is made, they falsely accuse people of different crimes. When we go and register a criminal case against the forest officials, they hit back at us by falsely accusing poor tribal people. These people, who live off mango kernels, do not have enough food for themselves, and often their children die from starvation. How can you expect these people to be criminals?

People of the area often go into the forest to get themselves some firewood. The forest officials then register a preliminary offence report against these people; the forest officials then register cases against them. They then destroy their small huts and confiscate all their belongings from their hut; these include salt, rice, some containers, and a few shawls. Two ladies – Gajrabai and Gajribai – were, in a similar fashion, put behind bars as punishment. The officials then ask for an extension to their remand, citing that the investigation is not complete. In this fashion, people are often locked up for a month. When they are released, they are asked if they have learned a lesson or not.

The people of the area are threatened if they join any organisation or if they lodge a complaint against the forest officials. During harvest time, the tribals are required to give the local


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officials some corn, alcohol and chicken. Some of the tribal girls are also forced to be domestic servants in the officials’ houses, where they have to do all sorts of dirty work.

The first thing the forest officials do is to torture a person for two three days, without making any kind of official record of his arrest. There is no rule of law in Harda and Betul. Only once has a responsible SP [Superintendent of Police] come to our area, and it was then that we registered a complaint against the forest officials.

Of late, land and other natural resources have also come into conflict, as the Madhya Pradesh government is looking to sell this for industrial development. In retaliation to this, we started a peaceful protest comprising of about 20,000 people. The forest officials then came and beat us up very badly. They then accused us of all kinds of crimes, such as robbery, dacoit, and attempt to murder. When we tried to take this matter to court at places like Betul and Harda they dragged me and other girls in the middle of the city. Their only aim was to stop us from going to court. I have been given notices from six different districts that I am not allowed in those areas.

They have accused my husband and me of staging illegal demonstrations and agitations in the villages. We brought this up in the High Court during an ongoing trial, and the judge was shocked, as it reminded him of the emergency era during Indira Gandhi’s days. We also have a small political party, and before any election, they arrest my associates and me for no apparent reason. The BJP – the party in power – also tried to get rid of us by trying to burn us alive. The situation is very serious in the interiors of India. We should put more pressure for a just system.

Gauri Rai West Bengal

On 11 December, which was a Tuesday, my husband was going to Howrah. On his way, the Satraganchi railway Protection Force got hold of him and gave him a serious thrashing. They beat him to such an extent that he could not utter a word.

I got the news at 1 p.m., but did not go and meet him. I went to the court on Wednesday and saw my husband being taken away to the Howrah District jail. I followed him. Once I reached there, the police asked me a few questions. Meanwhile, I saw two men holding my husband. I tried to talk to him, and he tried to reply using gestures, as he was not in a fit state to talk. I also asked him if he would like to eat, but he did not say anything.

After seeing him, I started crying and I came back home. My husband was a good human being who used to drink often. He did not deserve what he went through.

I went back to the jail on Friday, and his jailors told me that my husband, “raju rai”, had passed away. I asked them how a healthy man could die overnight. The police gave me some papers while I was crying and told me to get my husband’s post mortem. I sent some local boys

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to pick up the body. The doctors at the hospital refused to hand it over. The next day I went my self to Bowoo Bazzar to pick up the body, which was where the doctors told me to go. In this way, they made me run around Kolkata for four or five days.

After that, the police told me to write down that my husband was ill on the day he was arrested, after which he attacked them and was subsequently sent to the hospital where he succumbed to his injuries. This was what I was asked to do in order to get my husband’s body back.

I questioned their logic as to how a healthy man could fall ill in a matter of a few days, and I refused to sign. Finally they brought the body, and we could see some wounds, which we photographed; the pictures are still with us. We still have not got the post mortem report. I would like the men responsible for this to be heavily punished. How do you expect me to survive with two children without a bread-winner? Please punish them.

Laxmi NairKerala

We were watching television in the house. There were some problems with the water, so my father went to a nearby well to take a bath on his way home from work. Our neighbour, Jaya Kumar, who was drunk that evening and is a policeman working in north India, had a verbal duel with my father.

Jaya Kumar beat my father, and hearing the noise, our family members went to stop the fight. In the meantime Jaya Kumar’s brother, Anil Kumar – an armed policemen – joined him and beat me and kicked me under my belly. I fell on the floor, and my clothes were torn. I was sexually assaulted by both Jaya Kumar and Anil Kumar. I later fell unconscious and woke up the next day to find myself at the government hospital; I stayed there for three days.

I gave my statement to the police while I was in the hospital, but they deliberately omitted to record Anil Kumar’s name and his involvement in the crime. There was also a deliberate attempt made by the accused to question my morality. According to the police officials, we are the criminals. Complaints have been sent to the State Human rights Commission, to the Chief Minister and to other authorities.

Later we made a complaint to the Magistrate, requesting him to investigate the incident. The lawyer who was engaged is insisting that we withdraw the representations we gave to various authorities. My family has been forced to sell our small property due to the threats and the influence of the accused and the community.

Pratap SinghUttarakhand

respected friends,

The situation is such that it is getting difficult for me to speak. Since 2001, my family and I have been facing police atrocities. I used to think that we were the ones who are facing the worst of it, but after what I have heard


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and seen here since morning, I am of the view now that whatever we have faced is nothing. All over the country, people are facing atrocities; they are crying and shouting and begging for justice. Are we living in a country that is governed by the rule of law? Is it a democracy?

When I was informed about this tribunal, I had prepared a seven- to eight-page report containing details of some of my own incidents and some of the most gruesome incidents from uttarakhand. now [that] I have got an opportunity, I will make mention of one incident:

Half of my family lives in uttarakhand. My parents are in their old age and live in Bareilly, uttar Pradesh. I have been active in the uttarakhand Movement. I have participated in various struggles of labourers and farmers. Our organization, Mazdoor-Kisan Sangharsh Samiti, has conducted various campaigns against landlords, [the] health minister and corrupt officials, and in consequence of all this, our comrades were sent to jails and beaten up many times as a matter of routine. But after the year 2004, uttarakhand police have started to torture various functionaries and activists of such peoples’ movements in the name of “Maoism”.

The entering of 10 to 15 armed police personnel to any house, destruction of the household, and arrest of the son in the absence of the head of the family – many things of this kind have been done there. Shikha rahi has just told us about her father.

On 11 nov 2005, I was taken away from a bus in front of Sherghad Police Station in Bareilly, when I was going to uttarakhand from my home place. I asked the police inspector, “Why are you taking me away? What right do you have to take me away like this? The law does not permit you to take me way like this.” Whatever he replied to me, I cannot repeat here. nobody can say those things here.

They took me to an unknown place, putting a black strip on my eyes. I said that, “There are directions from the Supreme Court and the national Human rights Commission that if you take somebody in custody for investigation or arrest for any reason, one member of his family must be informed about such arrest.” They said: “You are teaching us law. We will deal with you soon.”

until the evening, I had no idea why I was arrested; nobody told me. Whoever I asked told me to shut up. “Soon you will come to know everything,” they said.

In the evening, when CO Meerganj came, he told me that the uttarakhand police has given information that you are the trainer of Maoist-terrorists. I said: “Tell me where I am giving such trainings. everybody knows me there in uttarakhand. We meet people from the administration every week. I am among the people all the time: meeting them, doing demonstrations, etc. Where am I giving trainings? In which jungle I am giving trainings? Who is saying so?”

They said: “We can’t say. uttarakhand police has told that you are most wanted.” I said: “Ok, fine. Then ask those people from uttarakhand to come and give proof. You have made me sit here since morning. I feel that I am not wanted anywhere. At least inform my family members; they must be very much worrying.” “no, no information; it is very high-level matter”, they

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said. As if high-level people have a right to pick up anybody from anywhere without informing anybody; the law does not apply to them.

I was kept there for three days. no washing, no facility of any kind, not even a toothbrush and soap – nothing.

On 13 november, they started investigating me. The people doing the investigation said, “You took part in a demonstration against the Health Minister! What have you achieved? You are campaigning against the landlords. What did you achieve? You have protested against everybody, but you have never been successful so you have become a Maoist now.” I said: “What nonsense. There have been movements among the people, and whatever happened to them is a big question for you people. Why you are questioning me?”

On the 13th, when the investigation was completed, I asked them either to send me to jail or home. My wife is present here today. Since the last seven years, every week police and intelligence people come to my home. Sometimes they take away my elder son, sometimes the middle son. each and every member of my family has been tolerating this torture in the name of Maoism.

One of my sons is a journalist. He had reported on a matter of obscenity over there. When he was asking questions from the SSP, the SSP said, “Bring the file of Maoists. Let us enter his name also in the list of Maoists. He is talking much.” Once he was picked up, and the issue was raised in the State Assembly. An inquiry was set up, but we all know what happens to such inquiries; same thing happened to this also. He was picked up on 27 September 2005.

On the 14th, they said that we are discussing with people above. I said what kind of discussion is this. Three days have gone. They kept me waiting on the 14th also. They kept on changing my location. My wife went to the media, and the media discovered where I have been kept. Only then pressure was built on SSP to tell about my whereabouts, and also SSP was threatened that if he did not tell, then the media will publish that the police has encountered me. Then only SSP admitted that I am with them, and he said that since I am a trainer of Maoists, it has been kept secret. newspapers on the 14th published on the front page that Maoists’ Trainer Master Pratap has been arrested from Bareilly.

All my friends, like P. C. Bhai and many others, were astonished by such news. everybody was astonished: How can a person who has been working with them in movements since 1994 be trainer of Maoists? I was not released on the 15th, also.

On the 16th, my wife asked SSP Bareilly about my whereabouts and said: “Whatever he is, be it Maoist or whatever, who has given you a right to keep him here for six days?” Then he said: “OK. By today evening, you will get him.” My wife said: “Tell me, otherwise I am moving to the Court.”

On the 16th, a case was filed in court, and the same day, some police officers met my father-in-law and my brother and said: “We will release Pratap Singh, but here are some papers which you will have to sign.” My father in law is 85 years old. He said: “Get any paper signed by me, but


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release my son”. I have brought that paper with me here, and it was written on that paper that: “In an encounter which happened between uttarakhand Police and Maoists, his name was also wanted. He was called on the 14th at 12 for an investigation, and the investigation took place in the presence of his father-in-law and brother. no involvement of him was found, and he was released at 9 p.m. in the evening.” While [in reality] I was picked up on the 11th and was released on the 16th. The matter has been reported as being dealt with by Shahi Police Station, which is my home place, while the truth is that no investigation was done in Shahi Police Station, and my location was changed every day, with black strips on my eyes to avoid media.

I don’t have any idea as to how many places I was kept [in]. On many occasions, they changed places twice in a single day. I was finally released on the 16th. All the directions by the Supreme Court and nHrC are openly violated by police while arresting people. They arrest people on some day, show it on any other day. The police functions arbitrarily, and nothing is being done to control the police.

Thank you.

Rajendra Dhasmana President, PUCL Uttarakhand

I have a few things to say about uttarakhand: I have to say [something] about this sloganeering of “Maoism! Maoism!” by every government. There have been four governments in our state to date. The state was constituted on 9 november 2000. The fourth Chief Minister has taken office in our state now, very recently, and he has also started to talk about “Maoism! Maoism!”

On behalf of PuCL, I did a survey on this issue, because I coordinate PuCL’s work in my state. I surveyed the whole state of uttarakhand, which included Kumaun, Gharwal, Dharchula: all areas and valley areas where there is particularly much noise about Maoism. We visited several places to conduct the survey. Just now, Pratap Masterji was telling us that he was also accused of “Maoism”. There are several people like him who have been arrested and detained in police stations in the name of “Maoism”. I have personally prepared reports about them, and I have gotten them published, and I will also give some here.

When we started out from Haldwani, we first went to Chorgali and then all the areas behind Sitarganj, like Hansmukh Khatta, which was mentioned earlier also, and then to Saufutia Jungle. It was said about such areas that in these areas Maoists take children here, teach them and brainwash them about protesting, etc. I had gone to Saufutia Jungle with an entire team, and in three whole days, we did not see a single person, and neither did we find any sign of any shelter that could be used as a school or any place where people sat together.

I talked to many children. Mostly, these children were found in police stations, and the police had kept their weapons in front of them, and it was said that these weapons have been recovered from these children. After concluding whole investigations and interrogations, it was found that all those weapons were actually from the police station and that these children are from very poor families.

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In these khattas [clusters of huts] that you call Hansmukh Khatta, or there are others khattasalso at other places, there are very poor people who have been given very little land. In Hansmujh Khatta, there are nine Scheduled Caste families that have been given very little land. They don’t even have complete land. Their children don’t go to any school, because there is no school in Hansmukh Khatta or adjoining areas. It is said that Maoists have established schools for these children in the jungle and that these children study in the jungle. My team and I have talked to these children, and it is not true.

Later on, after many days of investigation, slowly, slowly we came to know about one more reason for such things. We had gone to some farmhouse; we had food there also. The man there was a very straightforward person, and he told us that he had come four years back to this place; he had five acres of land then, and now he has 55 acres of land. We asked: “How did you increase your land?” He said that he had to increase it: “It is human nature to see money getting increased. If you have money, you should increase it. If you have land you, should increase it.” Whatever…It was a defense colonization plan.

After World War II, military officers were to be given some land there, and hence the Defense Ministry has started to make a colony there. They made farmhouses, after cutting trees there, to be given to officers, but military officers did not like to go there, because it was said about this area that it is not fit for human survival. There are lots of mosquitoes there, and chances of malaria are very eminent. So this land went into the hands of other people instead of military officers. Whoever got this land, they developed it and grew crops there. It is a fact that nobody was supposed to be given land more than 10 acres – it was a limit. But if you see now, there is no limit: 200 acres, 500 acres and 1,000 acres. Some people have limitless land there.

And most of the tribal people in that region, like Bhokra and Tharu, there are even worst off than agricultural laborers. I have seen it myself many times. Tharus have no land; Bhakras are left with no land. They all work as labourers in the fields; they live on what ever they get as wages in the evening. Both the tribes have become totally dependent. See how much land these tribal have? Tharus came from outside and settled in these areas; they don’t have much land. Whoever is being described as Maoists – even they don’t have that much land. In the whole of Hansmuch Khatta, there is even not three beegha land, but there are nine families living from it. There is very little land, but somehow they manage within that.

If you want to grab even that land calling “Maoism! Maoism!” what way should it be interpreted? And the Government’s chanting of “Maoism! Maoism!” is just a defense for them not being able to do any development. every government just gives us numbers of offices opened, roads and houses built; they tell us about “e-business”. But they have not been able to give employment although they have opened factories.

They make use of “Maoism” for deviating people’s attention from their inability to do anything. Again, Maoism is used as a defense for not being able to do anything. This is now a political stand. The fact is that the land which has been given has been given to extremely poor people.

This man, neelu, who has been arrested, used to live in a khatta. This khatta is not in udhamsingh nagar; it is next to Dinesh nagar. When neelu was arrested, he used to tell the


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people from these khattas, who used to work in big farmhouses, not to work more than eight or ten hours. If you use them for more than these hours, they should be paid double or one-and-a-half times for that. They felt that this person is very dangerous; he is educating people. They got him arrested in the name of Maoist. neelu is still in jail.

Jeevan from Almorah is also in jail. Three boys who were arrested from Haldwani are also in jail. A girl was telling us about her father, Prashant rahi; he is also in jail. This is a very recent event of 17 December. In all these cases of arrest, the police has given false information about the place of arrest. It has been said that they have been arrested from a village near Dineshpur, but they have not been arrested from any place near Dineshpur; rather, they have been picked up from their huts.

I have talked to [one victim’s] wife. His wife is 22 years old, and his baby is one-and-a-half years old. He was in lap of his mother, and both of them had not eaten since the last six days. Such is the problem. These people are really extremely poor: One day’s wage, which they get after extreme difficulty, does not even fill their stomachs. even if you chase away these kinds of people by harassing them, they don’t have any land, as is the case with the place from where neelu has been arrested. They only have huts, which are on the roadside. In the place where neelu used to live, there are only five huts.

even if you are arresting people in the name of Maoism, what is the need to tell lies about the places of arrest? You are telling wrong places again and again, such as that children from Haldwani and Dineshpur have been arrested.

When I was in Haldwani, I was at the home of my friend there, who is no more. He was a very active person, but now he is dead. I am not telling you these facts after reading from books; rather, I am telling you after seeing them. All of this is false, and there is always a motive to hide something behind all such things; the motive is either to grab the land or to secure some political advantage. So, the government can think about politics, but small people cannot think about such politics. People either want to grab their huts or their fields or the places where these huts exist. It is in these situations where a hue and cry is being made about Maoism.

The border of uttarakhand State touches two countries: one nepal, and the other China. Maoism was even born in China. new examples of encounters with the government are from nepal. That’s why it is very easy to convince these people about uttarakhand. Just three years back in Haldwani, when I talked to the Chief Secretary, he said openly in a meeting: “I want to tell the people who are sloganeering in newspapers, etc., that there is no Maoism in uttarakhand. On behalf of the government, I am saying that there is no Maoism in uttarakhand”.

Three years have gone by since then. In last two or three years, you can see in newspapers and statements of chief ministers and ministers that Maoism is a great terror and is causing lots of trouble. I had a little talk with the Chief Minister. He said that nothing of this sort is in his knowledge: whether Maoism exists in the state or not. I asked: “Do you even have knowledge that these boys have been arrested? Though you may have Home Ministry with you, but you

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don’t know why these arrests are taking place, and then you are telling whole world, “Maoism! Maoism!” He said: “I did not have any knowledge about it until now”. So, he says one thing at one time and another thing at some other time in this regard.

now, about Prashant rahi: Prashant rahi’s case is definitely a case of such “Maoism”. It is extremely important to know the conspiracy behind it and why it is being said so. This is all I have to say.

Satnam BainesHuman Rights Law Network

[Shows a short film clip]. What you just saw was just a trailer for the documentary on which Jaswant [my wife] and I have been working on. I think the credit should go to Jaswant, as it was her idea from the very beginning. We came from england to work at HrLn for a few months. We sat with Colin, and he asked us what kind of work we would like to get involved in. So, various ideas came about, and the idea behind doing this

short documentary was that it could be used by HrLn elsewhere. And it has been very amazing how this small idea snowballed into something much bigger than any of us expected.

We took a cameraperson and went to various states in India, starting with Tamil nadu, and then to the Punjab, Chhattisgarh and Andhra Pradesh. We hoped to interview people from Kashmir and other states to really see what was going on in India in terms of torture, extra-judicial killings, and forced disappearances. And what really struck was that the people were very different, the language was very different, the religion was very different, the culture was very different. You can take an airplane from Delhi, and you can land in Tamil nadu and its like being in different country. When you arrive, you think that the stories will be very different, but the frightening thing was that the stories were not different. The worrying thing was that – in each different language, in each different state, and in each different culture – the stories were similar, the torture was similar, the disappearances were similar and the agony of so many people was also similar.

I am not really qualified to come here and stand on a stage, because I have not done much work in this field, and, in fact, it is very humbling for me to actually stand in front of the real jury: the people who have come here and told us what has happened to them and have the bravery and the courage to come such a long way and share with so many people what occurred to them.

I’d just like to say that everybody who has come together for this IPT is phenomenal. To see so many people coming and working, I think every one should share the credit. I thought I’d say this now, as I may not get a chance later on. It has just been absolutely incredible.

But the thing that occurred to me was that the IPT in my view, and this is my own personal view, has been tremendous, because I am a lawyer, and many of us here are lawyers or judges, and we call ourselves activists, and we can play by the rules: What is admissible evidence and


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what is not admissible evidence, and how someone’s testimony should come before. If anyone was to look at a tribunal: Forget what is admissible, and just listen to what people have said from their heart, and ask yourself this question – are these people lying? Are these people terrorists and disruptive? And, are these people – as Prime Minister Manmohan Singh put it – the biggest threat to India’s national security?

My Prime Minister, Gordon Brown, came down to India a few weeks ago and said that he was very proud of India’s democracy and rule of law. I am not any expert to say what democracy is in India, and perhaps one thing I may raise with the government from where I come from [the united Kingdom] is that before making any statements on the rule of law, maybe you should have a look at what the rule of law is!

We went to Tamil nadu – the first state we visited. We were asked whether we would like to interview some people. Many of you have heard of this famous bandit, Veerapan, who was a famous bandit in the southern state of Tamil nadu. We thought: We do not know much about this Veerapan character, and he is the bandit – the man who used to control the forests of Karnataka and Tamil nadu. So we went there, and some of the clips you have seen, and I should stress that this not the actual documentary, this is just a compilation.

There, we met two young boys who had been taken away from their village by the Special Task Force to another village. It was a very tragic yet promising story about their mother, who realised that both her sons were alive in the same village, in the same place. And their only crime was that they belonged to the same tribe as Veerapan’s. So, I would be interested to see in which constitutional paragraph, which section of the Indian Penal Code it says that if you belong to the same tribe as somebody, you have committed a criminal offence. And as these people may know better than anyone on this stage, that to be a member of the Adivasi, to be a member of a minority community, to be a member of any community, whether you’re middle class, whether you’re upper class, or whatever section of society, you are often guilty by association.

I do not think that we can do justice to all the people we interview, and maybe that’s one of the limitations or tragedies of a documentary – that you have to make something that will keep the audience interested. But I can guarantee you one thing: If you were to sit through fifty hours of the footage we have taken, and maybe here is ten more hours to it, you would sit there mesmerized. It is difficult to listen to these people, because our conscience tells us something: Our conscience tells us why these people have to come here. In fact, something came into my mind yesterday: Why are we having an IPT? It is good that we are having an IPT because people come together.

But the fact that we are having an IPT means that the judiciary is not doing what it is supposed to, the legal system is not giving what it is supposed to, the courts are not delivering. every person that comes onto this dais, the last thing they say, and the things they have said in this documentary, is that, “All we want is justice.” There was a woman who came from Kashmir yesterday, and – I will take only one example – this lady from Kashmir said that, “I want to come to Delhi, and I want to say to this man Bhattacharya that, ‘I have come to your city to

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ask you where my son was.’” For me, among the very touching statements that we heard, that was really profound. A woman who we would not consider to be educated or literate, she has had the courage to come here and say that, “I have come to your city. now you give my son back to me”. now what can I say? What can any of us really say about these things?

It is a tragedy. We find it uncomfortable to listen to these things, because it is too much. How many times can you hear that a young girl has been raped or some child is being molested, and it is in the name of anti-terrorism or naxal operation? Who are these naxals and terrorists? Because sometimes you look into these papers, and you think: Are these people foreigners? There is a big foreign threat to India. Look at these people. Where have they come from? They have come from villages, towns and cities – areas all over India; these are the people of India. Are these the outsiders?

I do not mean to come here and be critical. All I am saying is that here is our jury, and I can practice for the next fifty years, and I don’t think I will see anything as profound as what I have seen here for the past two days. This is real justice in some way, and in many ways it is no justice. These people will leave, and yet their hopes and aspirations still have not been fulfilled by anybody. But one thing I would like to say to the organizers here and the people who have come together: One thing that has made me think, that I would like to think that [for] people who have come from far and wide [is] that one thing they can take away from here, is that, and I am heartfelt in my apology to you that we cannot deliver justice, maybe you were given some dignity here and were treated as equal citizens and as people who deserve some respect in terms of what has happened to you and given some opportunity to relay this to us.

So, I hope that one thing that we all take away from this IPT is that our courts need to be delivering what these people have an expectation of. I was reading in a paper about the backlog of cases, which was about two million. They interviewed the head of the Bar Council, and they asked: What is the view of the Bar? The Bar expressed that the Bar is happy and that the Bar thinks it is okay and that the cases are managing fine. I think maybe the lawyers, Bar Council members and judges should come here and listen to these people. If two million cases are pending, is it acceptable?

The last thing that I really wanted to end on is that an unexpected twist to this documentary was that we ended up interviewing grassroots workers, activists, human rights defenders and lawyers, and I am not talking about the big names, but people who have been working with the community.

We went to Chhattisgarh. One of the biggest tragedies is that Chhattisgarh does not have a big diaspora in the West, nor does it have people who are settled in high positions. We went into Chhattisgarh, and I was shocked because, in 2008, you have young boys carrying Kalashnikovs. You have child soldiers, you have refugee camps that are being administered by unICeF, and you have people’s militias. If someone had said that before I came to India… I would ask what they are talking about – Darfur in Sudan? I would not be talking about one of the newly formed states of India. It is also one of the most prosperous states because of its natural reserves, and this is a big tragedy


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And maybe another tragedy is that I, being a Sikh living in the Punjab, am not concerned about what is going on in Chhattisgarh, and maybe somebody in Chhattisgarh is not concerned about what happens in Kashmir, and maybe a Kashmiri is not too concerned about what happens in Tamil nadu, and visa versa. One of the biggest weaknesses I have seen is coming together. Coming together does show a lot of courage. Perhaps we need to feel the pain more globally.

And just the very last thing I would like to say is that there are lawyers in Chhattisgarh, as we have heard from Dr. Sen’s wife about what was happening to Dr. Sen. There are about ten or fifteen lawyers.

There was a lawyer, Amarnath Pandey, who was representing people in false encounters, and the locals labeled him a naxalite for doing his job. He does not have any naxal affiliations; he is a lawyer who is doing his job and is applying the Constitution of India, and he is a lawyer who does a very, very good job. He was told by a police officer that he would be killed for the work he did, and the week before we arrived, his car was completely torched in his driveway. He explained to us that some nights before, his car was set on fire. For us it was quite creepy because Chhattisgarh is in a very strange situation.

We asked him what motivates him to work towards justice. He showed us two articles where the same person with the same name had been killed. He told us that at least one of these encounters has to be a false encounter, and you do not require the skills of a lawyer to realize this. now these are the things that are going on in India. This lawyer took a newspaper cutting from one of the national newspapers, where five police officers were convicted of false encounter. He sent the same cutting to the police officer who had threatened him, and he said, “You threaten me, and I will do to you what was done to these police officers. I will make sure that you are convicted for your crimes.”

That’s all I need to say. Thank you for your time.

Dr. S. D. Singh Torture Prevention Center, Kerala

India’s freedom struggle was the first non-violent revolution in history. This shows that Indians know how to behave in a non-violent way. In 1948, India signed the universal Declaration of Human rights. Article 5 clearly states that no one shall be subjected to inhuman and degrading treatment. India has not ratified the 1984 Convention Against Torture [CAT] and is reluctant to take this step.

For the past 18 years, India has been abstaining when voting on the Convention is going on in the united nations. We must ask ourselves why. There are many provisions against torture in the Indian Constitution, such as Articles 14 and 21. The Human rights Act of1993 was probably the last legal advance towards preventing torture by India. I witnessed yesterday a young lady who burst into tears and could not speak, she was trembling so much, as she was trying to tell how she was asked to undress in the presence of police officers.

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What is happening? Are we living in a feudal system? Are we really happy to live in this shadow? Government officials still enjoy sitting in the colonial chairs. equality is there in the books, but it is not there in reality. Some of the old-timers and some of the politicians still live as though we are in the monarchical system. It is a combination of colonial rule and monarchical rule within a feudal system.

The questions that come to me are: Why is torture prevalent in India? Where is it happening? Who does it, and why is it happening? What are the gains to be made from torture? The same questions apply to extra-judicial killings and disappearances. How many people disappear in India? Do we have good, clear, honest statistics? In accordance with the right to Information Act, I contacted many offices of the government of India, and the answers I received were vague. The data I got is definitely not reliable.

India is a democratic country, and yet our own people do such anti-democratic actions. Why do they do this? We need to understand the real reasons behind it.

We have come here today and listened to the testimonies. We are thinking about the problem, but what about practical solutions? How can we prevent and resist what is going on? How can we empower our community? We have an obligation to support victims of torture, but how do we do it?

In one of the trainings I conducted for doctors in South India, I asked those present: “How many of you have read the Constitution of India?” Out of 250 doctors, not a single one had read the Constitution. This means that doctors looking after torture victims do not know what is said in the provisions of the Constitution. In the CAT, there is an official international definition of torture: It is a physical or mental injury that is intentionally inflicted.

Torture has multiple components. Our centre concentrates on dealing with the medical, psychological and social aspects of torture. Medical professionals are reluctant to work with the victims of torture – it is not a money-making business! Doctors generally avoid torture cases and do not prepare decent, honest documentation explaining what the victim has suffered, which can be produced in a court of law.

The medical profession in India is not supportive of torture victims, and, sometimes, medical professionals even go against medical ethics, supporting the perpetrator. Although nGOs work with torture victims, meet them and do the documentation, we [still] need decent medical testimonials. In many cases, proper medical documentation is not presented before the judiciary. nGOs must strive to get the best information and proof they can to present before the court.

We have a centre treating the victims of torture. We use a six-point process for gathering information in our center:

1. We meet the victim and record all the relevant information;

2. We meet the victim’s family and record their testimonies;

3. We visit other members of the society to collect details;


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4. We meet the doctors who treated the victim and ask them what their findings were. We request them to write a detailed testimonial, a proper documentation, but we often find they are reluctant to do this;

5. We meet the perpetrator to listen to their view;

6. We put the five points together to compile a report. If there is definite medical evidence and the documentation has been done thoroughly, the information is ready to present in a court of law.

It is extremely important to collect the physical medical evidence or a detailed post mortem report. This evidence cannot be changed by anyone and is concrete evidence before a court. It is preferable to get the medical evidence as soon after the torture as possible, preferably within 24 hours. This is the best way to persuade the courts that torture has taken place.

The Istanbul Protocol is the united nations’ accepted method of investigating allegations of torture and documenting them. It is accepted by the Indian Medical Association and the World Medical Association.

In Kerala, we have started training doctors and lawyers together. unless the doctors and lawyers come together to fight against impunity and to support the victims of torture, it will be possible for the perpetrators to evade justice in the courts.

In our experience, perpetrators are always influential, wealthy and educated. Victims of torture are usually middle- or lower-caste, with no political affiliations, no money and low education, and so they are often unable to insist on medical documentation. We also see an unhealthy nexus between the law-enforcing agency, the judiciary and the medical association working against the victim.

We conduct a complete physical examination of torture victims. One interesting case is that of a young boy who came to us. At 2 p.m., he was slapped repeatedly on the side of his head by the Station House Officer in a police station and then released. He went to the nearest government hospital and reached there at 6 p.m. The doctor examined him and wrote a certificate saying that the boy had alleged he was slapped by the police, but there was no evidence of external injuries.

The boy came to our centre three days later. I examined him and sent him straight to an eye specialist. The eye specialist examined him and reported that there was a small hemorrhage on the left side of his left eye. I then sent him to an ear, nose and Throat surgeon, and he certified that there was a swelling in the left ear. I sent him to a dental surgeon, and the dental surgeon certified that his left molar was loose. So what does all this evidence show? It is conclusive that there was damage caused to the left side of his face.

I wrote a detailed medical testimonial as per the Istanbul Protocol and presented it to the court. Here comes the crucial point: The first medical certificate, written on the evening he was arrested, stated there was no evidence of trauma. I wrote the detailed medical testimonial three days after the event. The Station House Officer came to me and asked what he should do. I said: “I do not know. You have to face what you have done”. He got a good lawyer, and the

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lawyer managed to help him. How? The lawyer stated that the incident took place on the 15th, and there was a medical testimonial written on the 15th stating that there was no evidence of injuries. There was my testimonial written on the 18th, and so – the lawyer argued – the injuries were caused by someone else, and not his client. So, the timing is crucial. If all these criteria had been included in the first medical testimonial, justice would probably have been done.

Abhijeet DattaMASUM, West Bengal

To the respected members of the panel, members of the tribunal, victims across the country, human rights defenders and our friends present here: This tribunal is especially meant for custodial violence and torture, false encounters and false disappearances.

From West Bengal, we have come with three cases. Already we have given testimonies of two of them, and one case is pending, which we will present before you and this panel.

It is a fact that there is no legal definition of torture in our country. And we know that India has signed, but not ratified, the united nations Convention Against Torture. At present, there is no definite legislature in place in India to define or prevent torture.

I am an advocate by profession, and I know that there are so many Supreme Court judgments within Indian legislation that can stop torture. I would like to refer to the judgment passed by the Supreme Court that was reported in 1997. It is the D. K. Basu judgment [which contains 11 “requirements” to be followed in all cases of arrest and detention].

regarding torture, before 1997 there was no concept of “memo of arrest”. now [because of the D. K. Basu judgment] when the police confiscate something from someone, they have to prepare a memo. even if the police have confiscated a matchbox from you, then they have to prepare a memo. Before 1997, if a man was arrested, there was no system of preparing a memo. That a memo of arrest should be prepared was the first direction that came from the Supreme Court. nowadays, it is mandatory to do so, although it is not a statutory law; rather, it is an order from the Supreme Court. The judgment of the Supreme Court is the law of the land.

It is our experience that thousands of people have disappeared. I have seen it with my own eyes. They are taken into custody, and they are not produced before the court. Or they are summarily executed, or hidden, or their bodies are buried, or they are made to “disappear”. If a memo of arrest is implemented rigidly, then the enforced disappearances can be sorted out.

The national Human rights Commission has produced many guidelines with respect to executions in “fake encounters”. The police have to register a case against the person who organized the encounter, and there must be an investigation by the Criminal Investigation Department. A murder case should be lodged, and it should be investigated properly. And there should not be any guaranteed [work] hours or any promotion during these enquiries.

But these are the laws, and we are the human rights activists. We find on the ground that all these laws are only on paper. People high up in society are enjoying the protection of the law,


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but the real people of the country – the poor people, the village people, the peasants and the workers – are not getting any kind of protection from the law. This is our experience.

I am from West Bengal, and you know that, nowadays, the human rights record of West Bengal is very poor. It is not strange. I can recall that over the past year, 27 people have been killed in police shootings in West Bengal alone.

Take nandigram: The Singur issue is fresh in people’s minds. not only is it a national issue, but it has now been taken up as an international issue, too. The nandigram killing of 14 people on 14 March 2007 was not a stray incident.

I can remember the first thing that happened in Kolkata on 31 August 1959: It was a Famine resistance Committee movement. The Congress government was in power in 1959, and 80 people were killed in the Sayyid Minar area of the city. They were not only shot, but also beaten with lathis.

The emergencies in 1967, 1971, 1972, and 1976 were times when thousands of people were killed. Their faces were blackened, and their bodies were thrown into the river so that nobody could retrieve them. even after the Left Front Government, came to power in 1979, 30 people were killed in Morisabi in South Bengal when refugees from east Pakistan and Bangladesh arrived. In 1993, the Kolkata police killed 13 people in Mamta Banerjee’s rally. Then, there was nandigram in 2007, and then comes the Dinhata incident a few days back on 5 February 2008, during which four people were killed. This is the track record of West Bengal’s human rights situation.

The Human rights Commission was established in West Bengal for the first time in India. But now, it has become merely another state government office. We are working as a human rights organisation – MASuM – and we are also working on a national project to prevent torture. There are thousands of torture and custodial cases there.

We have been filing complaints that there has been no response from the state Human rights Commission; it has become a department in the reuters Building. We have received some complaints from the national Human rights Commission, but there is no response from the West Bengal Human rights Commission.

The 1993 Protection of Human rights Act has no value in West Bengal. nor does the right to Information Act have any value in West Bengal; no one is giving it any importance. We are living in West Bengal, which is a supposedly a socialist state, but I heard yesterday that India is not a socialist state any more. The Left Front Government wants there to be socialism, but the approach they have been using in West Bengal for the past 30 years remains unchanged, and all the political parties are frustrated. We, human rights activists, and other human rights defenders are trying to work despite the system.

I am not frustrated, but there are so many victims here who are. We will be organising another tribunal in West Bengal. We expect you to come. And, we should raise voice against the system.

Thank you.

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Vijay Kumar Kolar, Karnataka

My name is Vijay Kumar. I am from Kolar KGF City I am 35 years old. My brother’s name is Krishnamurthy. He is married and has two children. But now he is dead. He died in the police station. The police beat my brother to death. He died on 13 August 2006.

On 13 August 2006 two friends came from Mysore to see my brother. Since they had come a long way my brother wanted to give them a treat. They went to Landmark hotel for lunch around 1.30 p.m. During lunch they had an argument with some people sitting in the opposite table where a police man in civil dress was also sitting. The argument was resolved and after they had finished eating they left to return home.

On their way home they had to pass a police station. The police told them that they had received a complaint about Krishnamurthy and the police asked them to come into the station. All three of them went into the police station. My brother was put in the lockup. The other two were released because they were from Mysore. They paid the police 3,000 rupees.

My brother called his friend and told him that he was been taken to the Bemalli police station. After 20 minutes my brother again called his friend and told him that police had beaten him very badly. The friend come to me and said that my brother had called and said that he was beaten by the Bemalli police and that we should go to the police station to bring my brother back.

When we went to the police station and asked for Krishnamurthy they said that there was no one called Krishnamurthy. When we insisted saying that my brother has called us from the police station they told us that there was a complaint from the Landmark Hotel and the Police Superintendent had gone to enquire. They had received information that there was a fight at the hotel and they had sent the policeman there but he has not come back.

The police officers said that they would give us the hotel’s phone number. We asked again where Krishnamurthy was. This time they told us that he had run away. We asked again. The policeman said that he was in vehicle next to the temple near the police station. When we went to see whether my brother Krishnamurthy was in the vehicle we found that he was laid down behind the vehicle. He was actually dead but we thought he was unconscious due to heavy drinking.

We came back to the police station and told them that we want to file a police complaint. He was taken to the government hospital. By this time my brother’s friend from Mysore had called and asked how my brother was faring and what had happened. He told us about the police taking my brother into the lock up.

We took him to the hospital where the doctor said he was already dead. We went back to the Police Sub Inspector who asked us whether anybody had seen my brother being killed by the police. He said that he might be dead due to a fight with someone other than the police.


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Then my brother’s friend came to the hospital and told us that after leaving the police station they had called my brother but he did not respond. The police made their doctor do a postmortem. They asked us to do the burial on 14 August since 15 August was Independence Day. We have not had any help. The SP to whom we complained said that there is no eye witness to our brother having been killed by the police. We told him that there are two witnesses. The Inspector said: “You talk to them now, and see what they are saying now”.

The police who was standing next to us asked our friends to go to the police station to take statement and they were kept in the lock up for two days. These two witnesses were kept in the police station for two days and were told to say what they were tutored to say.

We asked to do the burial and the police said that they will help us in whatever possible way. But they never helped us in any way. We went to file a complaint but no lawyer was willing to take up our case or help us to complain about the police.

Though the killing of my brother in custody was widely reported in the press, still we found our self unable to get any help.

We wrote to the Home Minister, Chief Minister and Director General of Police, all in vain.

After that SICHreM [South India Cell for Human rights education and Monitoring] took our complaint and complained to the nHrC and other human rights organisations, the case is now going on.

Advocate Vrinda Grover Panel member

Over the past two days, we have been listening to events that you have experienced along with your family members and loved ones. I would like to right at the outset salute you all for your courage in standing up against this torture, these disappearances, and for continuing this fight. I salute your courage and hope.

I would like to talk to you on the basis of two or three points. I think we have heard many things since yesterday, and I am trying to understand them. I think we should use the three points – namely, rule of law, national security, economic policy and citizenship – to understand what has been said.

We have been told here that, at some level, everyone’s experiences are one and the same, because we are humans and because torture or disappearance causes us discomfort, pain and sadness. I feel, however, that if we are to understand what is going on in the country, and if we are to find a way out of the situation, and if the struggle has to move ahead, we need to analyse it a little more critically.

I feel that if we continue to listen to things as we are doing now, then somewhere it is going to get blurred – and that I find very disturbing. According to me, all of these testimonies are not the same; all the struggles are separate according to me. Why there is no unity in these

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struggles is [that] the understanding of them is different. I feel that you raised this issue yesterday, and I would like to reiterate some of these points.

Let’s look at the issue of national security; Parveena put the point forward, along with other people from Kashmir. The friend who came from Manipur, the Secretary of MPnHr, also presented certain things. When it comes to self-determination, they believe that their movement is a freedom movement and that they are not a part of India. Concerning disappearances, this is not the first time that Parveena has talked to us about her son’s disappearance. Why people don’t join their struggle is [that] they believe in their minds that Kashmiris are different: They are militants. These thoughts stop the struggle from uniting, which is why when we hear what they say [and this is something I would like to request if there is a need to organize tribunals], I feel it is very, very important for the organizers to set these testimonies in a political context. To present testimonies across states is not creating unity to my mind; it is creating a political blur, which is dangerous and does not pave the way forward for us.

We need to contextualise, recognize the context in which the discussions are being done, which struggles involve disappearances. understanding that is necessary, and only then will you be able to join your voices together. Otherwise, no voices will unite.

national security is no longer an issue with regard to the northeast nor to Kashmir. Many people are reiterating what the Prime Minister has said: that the greatest threat today is from naxalites and Maoists. It does not mean, though, that they feel the army in Kashmir is going to be removed or that the Armed Forces Special Powers Act is going to be removed from northeast; they will wield that sort of power there, regardless.

Another thing they have mentioned in relation to context is economic strategy. Today, the corporate sector has got a lot of power and leverage. As a result of the unhampered growth of the corporate sector, many human rights have been violated. These numerous violations have resulted in the rise of human rights activists, such as Binayek Sen and Prashant rahi. The State apparatus draws no distinction between human rights defenders and the naxalites.

That struggle has made Binayek Sen a “naxalite”. In that struggle, Prashant rahi has become a “Maoist”. read their charge sheets. I have read Binayek Sen’s charge sheet and Prashant rahi’s First Information report; there is no evidence because none has been recovered. These people don’t use guns; they do human rights work. Wherever it seems the police run out of steam, what do they say on the charge sheet? That the people they pick up have a naxalite ideology and that their sympathies are with the Maoists.

So, whom are you injuring? You are injuring the thought – the politics. That is the indication given by our Prime Minister. Whether or not you believe in the naxalite ideology is another debate. Whether you want to adopt a violent strategy in your struggle, or a democratic method, is yet another debate. Our Prime Minister has made it clear that any alternative ideology is a crime: It is the thought that is aimed at. It is because of this kind of thinking that Binayek Sen was arrested.

When I talk about economic strategy, I am talking about SeZs [Special economic Zones] and the related SeZ Act, which is now law. The current issue of India Today has a cover that says


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“red Terror”. I have come from Dantewada, on which the cover story is based, with a fact-finding team. In the article it is written that the naxalites are inciting people to rebel against the SeZ Act. The struggle against the SeZ Act is going on all over the country, and debates are being held on what kind of economic policy this is. I remember that there was a debate going on in Jawaharlal nehru university on whether or not it is a good one. It seems that the government labels any opposition to the law “naxalite”.

This brings me to the second point, which I think we need to think [about] contextually. The economic policy that we have adopted since the 1990s – to go in for privatisation – uses a very absurd word: neo-liberalism. A friend of mine says there is nothing that is either “neo” or “liberal” about neo-liberalism. We have to see this from the point of view of [the] corporate totalitarianism or corporate “looting” that many of you here have talked about since yesterday. When you struggle against such economic policies, you will be attacked, and this attack will have to be understood in its context, because that struggle is for your water, forests and land – for your rights and against corporate looting, which is why torture is happening.

Which brings me to my third point: citizenship. We just heard the points made by Vijay Kumar from Karnataka. When we hear that his brother was killed in custody, what should we make of it? In our nation, citizenship and equality have been written into the Constitution, but that is not the political practice in the country. nor are they visible in any of the laws.

There was someone from Bihar whose brother had been killed by a Member of Legislative Assembly [MLA]. It would seem that you are a citizen like an MLA, with the right to a home, to live and to talk, but the right to being an equal citizen is not acceptable to the leadership. equal citizenship is not a part of the political practice of this nation, even if you are not part of any struggle. This is why it is very important to understand the context of any struggle and to analyse it.

The point that I would like to end with is [about] the rule of law. Many people said yesterday that the rule of law should be practised here. I would agree more with what Mr. Pandey and Mr. Patil talked about yesterday, i.e., which rule of law are we talking about? If the rule of law says that you can take away land under the SeZ Act, then I do not agree with that rule of law, and we are opposing that law.

Why does the judicial system not deliver? It is not because there is a backlog of cases. There are certain things it will not deliver on, and I do not agree that the D. K. Basu judgment is going to change everything.

Where is the appropriate definition of torture under the rule of law? Where is the appropriate definition of forced disappearance? Where is the definition of extra-judicial executions? These are not defined as crimes under the Penal Code. What are you going to charge them with?

In India, extra-judicial executions are called “encounters”. What did the Andhra Pradesh Court say? It said that it is not mandatory to file a First Information report in the case of encounters. The national Human rights Commission’s recommendations are not, by nature, binding; it is

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the court’s judgments which are binding. When someone is killed and there is no willingness to initiate an enquiry, how will you fight the case? This is why we should question the rule of law and challenge it.

D. K. Basu’s judgment is excellent; the point on the arrest memo is excellent. But when we talk about detentions that are not recorded, about which we have heard so much here from all of you who know it at firsthand and bear the scars, the law does not mention it. So when we talk about law, we need to ask questions as to what the rule of law is all about. When we talk about the courts, we must understand that this is not an administrative issue; it is a political issue, and it is in that context that torture and extra-judicial executions need to be considered.

Once again, I salute your courage and your zeal. All I would add is that there is a culture of impunity, with no punishment.

Someone was talking about an incident in Connaught Place. I think the reference was to a case in which there was a shootout, and four or five police officers were punished. That is an exception at the trial court level, and the matter has gone to the appellate court, and we don’t know what the verdict will be. Impunity is a rule here, and punishments are not given. That doesn’t mean we don’t struggle – that happens. But if we understand the struggle in the political context, it will be able to move forward.

With this I would like to end. Thank you for giving me this opportunity.

Farooq MapkarMumbai, Maharasthra

I had a devastating experience [during] the riots that took place after the Babri Masjid demolition [in 1992], when the country was burning with communal violence.

On 10 January 1993, soon after I went to the mosque for my daily prayer, a police inspector named nikhil Kapse and his team entered the building.

They killed six of the people who were present. After watching all this, I, along with other people in the mosque, rushed to the inner section and closed the door while Inspector nikhil Kapse was still firing. I was shot in my back, but I decided to stay inside the mosque.

After some time, a Central reserve Police Force [CrPF] officer came to the mosque and asked nikhil Kapse why he had fired so many rounds and tried to stop him. But the inspector kept abusing me and the other people present there. When the CrPF officer asked us, we came out, but one of us had been shot in the leg. The inspector killed the wounded man on the spot.

We were then taken to r. A. Gidvaya Marg Police Station, where a mob had congregated, and even they started beating us. The police watched the agony we went through in silence. To add to our pain, the police took action against us, arresting around a hundred people from the mosque. Some eight to nine cases were filed against me, which have not yet been decided in court.


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I believe that the Congress government is supporting the police inspector; they have already received the findings of the Sri Krishna Commission, but until now nothing has been done to implement its findings. I strongly believe that reports like these should be implemented for our well being, instead of just forming these commissions to fool us [Muslims], to gain our votes.

even when I filed an application in the High Court, the government lawyers said that the matter was in the Supreme Court. I strictly hold to my point of view that, if the Sri Krishna Commission has declared a person guilty, why is the government trying to save him?

A new case was filed against me, and new witnesses have been presented before the court. Around 100 people have already been accused, but until now not even a single Hindu has been convicted for any offence related to those riots. I feel the Congress is just trying to fool people of all religions by creating commissions and throwing the reports in the garbage instead of implementing their recommendations.

Bahadur Chandauli district, Uttar Pradesh

The Baluan Police Station is creating a lot of trouble for us. They are creating a lot of problems in our lives. The Sakaldihan Police Station comes under our area, but we do not go to Sakaldihan police station; instead, we go to Baluan.

I was living alone in my house. Together with another 14 people, I went to Kanpur from Allahabad to find a job. A businessman from Benares [Varanasi] took us to Kanpur for work. While I was sleeping, the police came at around 3 a.m. in the morning and arrested me. They kept me in the police station for nine days. You all can see the injuries on my right hand, and now I am unable to carry any weight.

The police asked me about my other colleagues. I said that they were not around and had gone to Gaya to cut trees. The police said I was lying, and although I told them they could search, they simply said that we always create problems. I went to meet the District Magistrate and asked him to help us, but he did not help us either.

Once we had a fight with the police in Baluan Police Station – that’s why they are trapping us in their web.

That’s what I want to say. Thank you.

Mahasargar Gautum accompanying Bahadoor

He has come from Chandauli district, which is a very backward place in uttar Pradesh. He belongs to the cast of forest dwellers; in Chandauli, Bhuhmin is the most common cast of forest dwellers.

They have 18 bighas [acres] of land. Farmers – or you could say a newly emerging class of backward people – are trying to capture that land. They have captured four bighas so far, and by using police torture, they are hoping we will leave so that they can capture more.

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In the same context, if any serious crime happens in Varanasi for which no one is held accountable, local people go to the police station and say that the residents of Jamalpur did it. Then, the police arrest the residents of Jamalpur and torture and beat them.

In the incident described by Bahadoor, the police arrested two people. One was held for six days, and Bahadur was held for nine. When we intervened, the police released both of them. Before, when some people were arrested, eight or nine cases were filed against them, and they had many problems as a result.

At the time when Bahadur was in police custody, he had one bigha of land planted with wheat. Someone fooled his wife and purchased all the wheat for just 8,000 rupees; you can say that his investment was stolen. His legs and hands were damaged in prison. even now, one of his hands is not working. That is his story.

Thank you.

Dr. LeninPeople's Vigilance Committee on Human Rights

Members of the panel, friends and aggrieved people assembled here, before starting our discussion, I would like to state that this project was a three-year project in ten states: West Bengal, Bihar, Tamil nadu, Bihar, Andhra Pradesh, rajasthan, uttar Pradesh, Kerala, Karnataka and Orissa, in which People’s Watch, MASuM, in West Bengal, Sikram in Karnataka, and

Manav Adhikar Jan nigrah Samiti in uttar Pradesh were associated.

The most important thing that we were looking at was that, in this country – according to the different conditions in different regions – it has led to various kinds of struggle against the political institutions, each of them well-tuned to the local situation. Also, those who are in power use these strategies to control the weak.

Workers like us understand such things very well. For instance, after we had managed to bring about some change in a village, a case under Section 505b was filed against us, with allegations that we were trying to incite class struggle.

The biggest contradiction was that my Congress mentor, who was a strong Leninist, thought of me as someone who doesn’t put forward class struggles, but rather someone who raises issues of castes and questions them, like Ambedkar [the architect of the Indian Constitution and a Dalit]. In that case, it was written that we are doing “class struggle”, shattering the peace, and that there is a lot of fear among upper-caste people. If you promote the rule of law, you get this kind of situation: these karyakartas [political workers].

We started organizing victims’ meetings in nine places with nine model talukas [administrative divisions] so that we would learn from them and so that people would start interacting and learn from each other. For example, as you may have seen, our friend from the Mumbai riots came here and shared his story, so we can learn from what he has told us. These people have been strategizing for 3,000 years how to put their voices forward and fight their own battles.


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This IPT is a kind of psychological counseling. The victim giving testimony is also fighting, and in this way, people and victims get encouraged when they hear such things.

What we did in the model talukas was to put emphasis on the fact that there are plenty of laws, but the point is not whether we win or lose – the point is that we struggle against impunity. On every issue, be it primary or secondary intimidations [or] if there is custodial death, the questioning on whether there is to be a judicial enquiry, the filing of a First Information report according to the nHrC guidelines, means that we are taking it to the next phase.

We realise that the Indian Government knows that it has to keep Manipur and Kashmir. They also know that political changes will come about when in small villages like Bilwa, all the Dalits and women stand up. In order to maintain the status quo, they are not signing the un Convention Against Torture [CAT]. We started a signature petition [about this] and included the victims.

The important thing is that the same people are speaking out all the time in meetings. The whole approach is related to how we have learned from the aggrieved, how we amplify their voices, how we come to a decision and include them during the struggle. Along with this, we have organized training programs for different stakeholders. The idea behind it is to learn from them and try to understand what they think, what arguments the judges are giving, what the people of the criminal justice system are saying, and what different civil societies are saying.

On the one hand, we see that we have to break the censorship, while on the other there is the middle class that accepts our struggle to a great extent. In such a situation, we have started a human rights street movement.

My appeal is that in the future in these ten states – namely West Bengal, Bihar, Tamil nadu, Bihar, Andhra Pradesh, rajasthan, uttar Pradesh, Kerala, Karnataka and Orissa – we do a tribunal such as this, in which we do between 32 to 80 different cases. The most important thing about this IPT, and the reason for it, is that it comes from the grassroots. What underpins it is that we want to take this debate to places like Benares and Kolkata.

We have to lobby for this before the parliamentarians and take the individual human rights defenders and persuade District Human rights Monitors to take up various cases. Basically, we have to ensure somehow that within this year, the parliament signs the un Convention Against Torture.

This whole initiative should not be merely an awareness program, nor should we only bring the voices of the aggrieved to the courts in the name of human rights. What we are looking for out of this tribunal is something that will lead to some political culmination. We are also looking at the cases that come in the various model talukas in terms of the political and the politico-socio-economic context, as Vrindaji who spoke earlier pointed out.

Further, we are looking at those constituencies and stakeholders whom we can push. There are a lot of forces that are against CAT and some that are for it. We want to tie the forces for CAT together, and by the end of this project, ensure a nationwide campaign that has victims, human rights defenders and the media – all the stakeholders – taking the campaign forward.

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Friends, I would like to say that, if in your area you can identify the names of any Members of Parliament [MPs], you should tell Colin. I say this because we want to talk to and understand what the MPs and Members of the Legislative Assembly [MLAs], especially MPs, are thinking about, what their arguments are and what they understand about the struggle. I have not talked about those parts of the project in which we have dealt with the courts.

If you look at the uttar Pradesh election, the bourgeois Congress party has come out and, for the first time, has written that the police is the most corrupt institution in its manifesto. This has happened because people from all over were writing letters of complaint.

Rajmani Dantewada district, Chhattisgarh

I have come from the Venkata Para village in Dantewada district. One day the people of Salwa Judum came to my village and burnt our houses, killed all the males they were able to find and raped all the females they could catch. My father was killed by these people last year.

The Salwa Judum raped two girls, Kumari and Kamli, who were not able to escape, and I witnessed this horrifying incident. I saw the officers from Salwa Judum rape the two girls, dress them in naxalites’ uniforms which they had brought with them, and take the girls away and lock them in the police station, declaring both of them to be naxals. These girls are still in jail.

Salwa Judum officers have attacked our villages regularly, and in order to escape, we have started living in the jungle. They have killed our cattle and have not left even a single house untouched. The police are aware of all this, but do not even register our report.

Himanshu Dantewada district, Chhattisgarh

Dantewada, a poor and backward district in the state of Chhattisgarh, is suffering from Maoist and naxalite activities. People’s lives and property are under constant threat, and they have no security. even the various aid organisations working there humiliate the people. And if they raise their voices in protest, the government calls them Maoists.

The government has collected some 2,000 to 3,000 ordinary people and policemen and formed an organisation called the Salwa Judum in order to curb the Maoists’ activities. This organisation is abusing its power: It goes to different villages and burns the houses, kills the men and rapes the women. Those who escape start living in the forest, where they are attacked again and again.

The Salwa Judum is doing this to capture people’s land, and the helpless villagers are forced to live in the forest. rajmani’s report is by one of the villagers who was able to escape from the hands of Salwa Judum after witnessing the terrifying extent of the destruction they have caused. It is the story of just two girls, but the same happens to all the villagers. They are


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subjected to extortion and high-handedness by these Salwa Judum members, who misuse the power delegated to them by the government.

Rama Rao Dora Adivasi Mukti Sangathana, Andhra Pradesh

I am a convener of Adivasi Mukti Sangathana [an organisation that works for the rights of tribals] and also a student union activist. I have come from Andhra Pradesh.

On 20 August 2007 at 5 a.m., in the village of the Vakapalli tribe, which is in the district of Vishakapatnam in Andhra Pradesh, 20 police from the “Greyhound” unit came to the village ostensibly looking for naxalites. They went to the tribes’ hamlets while the males were absent, and eleven tribal women were raped. When the women complained, the Deputy General of Police immediately defended the rapes in the press and accused the women of being Maoists. Mass movements, rallies and dharnas were organised by many public organisations all around Andhra Pradesh in support of the Vakapali tribes.

under the umbrella of Adivasi Mukti Samiti, all the political parties, tribal unions and people’s movements gathered together to protest against the Vakapalli incident. I am the coordinator of the Samiti. As the mass movements grew, all involved were called to the police station and threatened. They were told not to participate in the Adivasi Mukti Sangathan.

From 2 to 3 September, hunger strikes were conducted in which the victims also participated. From the 22 to 28 September, the Samiti organised a fast until death. Immediately after this, the tribes went to the State Human rights Commission, the Women’s Commission, the Scheduled Castes and Scheduled Tribes Commission, and also to the High Court, and filed a petition. As a result, the Human rights Commission has engaged the Tribes Commission to enquire into the matter. The Commission confirmed that the rape of the tribal women had taken place.

The government prepared a Central Investigation Department report. However, no clear evidence about the rapes appears in the report, and the High Court has dismissed the petition.

The district of Vishakhapatnam is rich in minerals, and the government is planning to establish a Special economic Zone [SeZ] there; it is also constructing the Kolavaram Bridge. The People’s Movement is gathering to resist this with support from the tribes. The government, for its part, is trying to stop the actions of the People’s Movement and is asking the tribes not to take part.

Some tribes have been displaced by the Jwalakund Dam and have come to stay at Vishakha, in the district of Paderu. If we are displaced from here also, then where shall we go? We have all come to the same decision: to fight against the State.

even while we have been protesting, the police have been going to the villages and threatening the tribes, telling them not to participate in the movement. They say they will increase the rapes

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if the tribes continue to take part. They say ten to 20 police will come and rape women, and no one will be able to stop them.

Immediately after the High Court petition was rejected, the State Deputy General of Police and the State Home Minister – in an attempt to keep control of the situation – said that the Maoists were conspiring against them by putting women to the forefront of the action. According to the national Human rights Commission and the High Court, the police denied that the rapes ever happened, but were directed by the district administrator to give some rice and other food to the tribes to help with their rehabilitation. This has caused them anguish. They are asking why the police are handing out food if they deny that any incident occurred. They have decided not to accept the food as a way of protesting against the state government’s action.

The State Human rights Commission and the High Court are not responding appropriately towards the victims. For the victims themselves, it has been torturous to hear comments from people saying, “These are the people who were raped by the police”. They don’t want to attract media attention to themselves, [even though some of those who have been raped] have died.

We have come here to the tribunal to ask you whether you are ready to help us, and if you are, then not only we but all those people who have been affected will be happy. The victims are saying they do not need any compensation, only that the accused should be punished.

Mukul Sinha Gujarat

Torture is outdated in Gujarat; there, we do only “encounters”.

I won’t speak much. We only have a little time, and there is no point discussing the events that have taken place in Gujarat, other than to say that over the past five years, incidents relating to political campaigning have been going on.

The riots that took place in 2002 were only the beginning. The whole issue is part of a central political campaign in which a minority, a class – breeders of terrorists – must be wiped out. This is the image of Gujarat that is systematically put forward since 2002. The first time was when 58 people traveling in two coaches of a train were burnt. Today, we know that this was an accident, yet we are told that the coaches were burned by Lashkar-e-Toiba [LeT] terrorists and that 58 people died.

Then, the Prevention of Terrorism Act [POTA] was used. The police arrested 126 innocent children, all of them Muslims. It was said again that all of them were terrorists, and it was necessary for the government to act so as to stop terrorism from growing in Gujarat.

The latest example is what we are seeing now: the “encounter”. remember that when the elections were held in Gujarat, a statement called “Merchant of Death” was discussed. During the election, the head of the Congress Party made a statement that Modi was the Merchant of Death, but after that the Congress took the statement back. We don’t know why the statement


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was withdrawn, but it was true: Modi is the Merchant of Death. The statement was made, and Congress lost the election. In reality, Modi systematically planned those killings.

regarding the latest way the image of terrorism is propagated, four “encounters” have taken place. It started when an innocent boy named Samir Khan Pathan was killed in 2002. Afterwards, the First Information report said that he was a dangerous terrorist who came specifically to kill narendra Modi. After that, on 13 January 2003, Sadiq Jamal, who was a simple mechanic from Bhaonagar, was killed. It was said that he was a member of LeT. He was shot in a place called narora. After killing him, it was written in the FIr that he had come to kill Modi. And then in 2004, it became systematic. every six months, Modi needed a dead body – not one, actually, more than one.

Then, Ishrat Jahan and three other young boys were killed in 2004. The same thing was written in the FIr: that they were dangerous terrorists belonging to the LeT. Actually, three of them were local people, and one was from Kerala. The police made a mistake. When they saw the name Javed Sheikh, they thought he was a Muslim, but it turned out that he was Pranesh Pillai whose father was an rSS [extreme right-wing] worker. So they made a big mix-up there.

Lastly, four more people were killed. You must all know about a very popular case: the Sorabuddin case. In fact, before the Supreme Court intervened in the Sorabuddin case, many people were killed in the name of fighting terrorism, but the matter was kept secret. However, after some days lots of facts came out, especially after some police officers were arrested.

We are fortunate that just last week three top police officers were arrested. I think two of them were Indian Administrative Service officers. One of them is called Dinesh from rajasthan Cadre, another one is Mr. Banjara from Gujarat Cadre, and the third is a District Superintendent of Police called narendra. These three officers are the main persons who plan the murders on Modi’s behalf.

All three were arrested, but two of them got bail. We opposed the bail order, and it has been cancelled now. I think the officers are now before the Supreme Court. They were arrested about eight months ago, and since then the killings have stopped. no one has died since they were arrested. People are very scared that if these people are bailed out and if they come back, then the killings and “encounters” will start again.

What we are seeing, especially in Gujarat, is the utter failure of the judiciary. The judiciary has been completely indifferent to the whole issue. There were dangerous police officers, especially narendra Amin, who has used the drug Pentathal. It is first time in the history of India that somebody has been killed with Pentathal. Sorabuddin’s wife unknowingly became the witness to his killing, so she was killed with Pentathal. By the way, it is used in America as a lethal injection for capital punishment.

The police officer, Mr. Amin, is actually a doctor; he is a medical doctor. After he became a civil surgeon, he became an Indian Police Service officer. He knows exactly how to handle medical science – he used an injection to kill Sorabuddin’s wife.

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All this is very well known. unfortunately, it is because of the failure of the judiciary, on the one hand, and the failure of the central government, on the other, that there are absolutely no steps being taken against such dreadful killings. They are taking place, and Modi is winning the election on the basis of these very events. Today, Modi has won for the third time, thanks to his enormous effort to paint minorities as terrorists and by not permitting any form of investigation in any of these matters. If someone tries to say something to him, he creates havoc in the name of Gujarat.

I think this tendency in politics has to be fought politically. We cannot hope for much from the judiciary. I think a strong people’s movement is required, which we are trying to create. Perhaps the next time we will have a more detailed discussion. In just ten minutes, it is very difficult to sum up what has happened in Gujarat over the past five years. It is dreadful. If what is happening in Gujarat succeeds, then it will be very dangerous for the rest of the country.

Thank you.

Umesh Hirekeru Taluk district, Karnataka

My father’s name is Veerappa. Between my father, mother and uncle, we have around 30 acres of land, which is not registered.

There is a dispute over the land. My grandfather died before my father was married. My grandmother died after both my father and uncle got married; she died in front of my eyes. There is a civil dispute going on

over the sharing of the property.

Because of the quarrel, we went to the police station recently. The police did not register any of my complaints, but only registered the complaints given by my uncle. The police harassed me by making me wait until evening and abused me verbally. My uncle doesn’t want to share the property in any way, and there is also a dispute regarding the sharing of the water.

On 27 October, my uncle’s sons came with the police to the field where I was working. They beat me on my shoulder and left arm with sticks and sickles. I went to the local government hospital, but the police told the doctors not to treat me and told me to go the police station. At the station, they ignored my complaint and took only the one made by my uncle’s sons.

The police then sent me to the District Hospital in Haveri, where I was admitted for four days. After I came back to the town, the police and my uncle’s sons came to the field where I was working, and after sending my brother away, proceeded to take me to the station and hit me on the arms, head, legs and ears. They did not beat me on the way, as they thought that would cause trouble. My ear still bleeds even though I have taken tablets.

On 31 October, after they tortured me in the police station, they took me to the Davangere Hospital and kept me there for seven days. On 7 november, I went to a judge and then to a hospital in Haveri, where I was given two injections, which made me unconscious. Without


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my knowledge, the police took me to ranibennur. My brother and our lawyer were present there. The police put me in an auto-rickshaw, then onto a bus and took me to a sub-jail.

Subsequently, I was taken back to the hospital in Davangere, where I was kept on the ground floor for two days before being taken somewhere else and then to the prisoner’s ward. Then, a person by the name of Srisail Murthy told the police to keep me in Davangere instead of Hubli. I was tortured; I wasn’t given water and food, and the handcuffs were tightened when I asked to have them loosened.

At the station, I was held horizontally in the air, and the backs of my legs were hit severely. I did not stand when they told me to. I did not remove my clothes when they told me to, so they ripped them off me and hit me at the station. I could not sleep or sit or stand or talk without being physically and verbally harassed. After all the torture, I was put in jail until my brother got me bail.

Sikram, a human rights organisation, tried to file a complaint on my behalf, but it was not accepted because of my uncle’s political clout. He gave money to the police and had me beaten. When I went to the politicians in the village, they did not listen to me, as I was a nobody.

The national Project on the Prevention of Torture in India and Sikram have taken the matter up with the national Human rights Commission and have filed a report against the Hamsavavi Police Station Superintendent and two other policemen.

Elangbam Singhajit Singh Manipur

The following events occurred on 30 September 2007 at approximately 9:30 p.m.; I don’t know exactly when, because I was asleep. I awoke to the sound of shooting and crying that went on for thirty minutes or so. My wife, son and young daughter hid under the beds. The Assam rifles were doing the shooting. I lit a lamp and heard the sound of shop windows being broken. The sounds came nearer and nearer. Then, the Assam rifles soldiers broke down my door and shouted: “Turn out the light, and come outside”.

We went outside, and one of them captured my 21 year-old son. He asked my son to tell him the whereabouts of a certain person’s house. I said: “He is a young man, and he does not know, so please leave him alone”, but they did not obey my request. They dragged my son and me towards the main road. There, they began beating and kicking my thighs and back with a stick; they kept beating me. They said: “Do you know the Kanflei Yawol Kunna Lup?” I said that I didn’t, and added that I had been inside the house throughout the gunfire.

The beatings continued. I was made to lie face down on the road while I was kicked in the back. And then, at last, I collapsed and became unconscious. After regaining consciousness, my family and I took shelter in our house. We were told by the Assam rifles not to leave the house until the next morning.

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now that I am here, I would like to say that the Armed Forces Special Powers Act should be repealed. And if you stay in Manipur for many years, you will always have to defend your children and your wife [against these people]. This is my story.

Kamla Devi Uttarakhand

I am Kamla Devi from uttarakhand. I am suffering from problems created by the police. I have an eight year-old daughter. We went to Almoda Golna Khagadia for her studies. The police threw me out from there. even if I am at home or at my in-laws’ home, the police are not leaving me alone.

Tell me: Why they are doing this to me? The police are visiting the shop where I work twice or three times a day. They are telling the owner of the shop to throw me out. And if I rent a room, then they say to the landlord that he should throw me out. Where should I go?

My father does night duty. They are also going to my father’s school and are asking about my husband.

Dr. P. C. Tiwari accompanying Kamla Devi

She is Kamla Devi. The police say that her husband is a Maoist. She did not know anything about it when they were married. For the past seven years, there has been no contact between Kamla and her husband, but the police always come in search of him. They compelled her father-in-law to write that the family doesn’t have any contact with him, and it was published in the newspaper.

She has a daughter. She is doing a job in a shop so that she can educate her daughter. She gets rs.500 month from that shop. Some family members help her.

The police tortured her continuously. They forced her landlord to throw Kamla out of the house. She left the house within an hour; now, she is wondering where she can go. The police are not letting Kamla live properly.

She says it is not her fault; she is only trying to educate her daughter. The police have been torturing her for the past four years. And now, she is faced with the problem of where to go and how to educate her daughter.

The police are saying she should divorce her husband. Her husband’s name is Davendra Singh. She says that her husband was involved in a fraud which was going on in Sahaspur Khatta. She does not know anything else.

Shiv Prasad Andhra Pradesh

I am an assistant executive engineer in an irrigation department. I started my work in 1985 with great expectations that I would render at least some service to the government and the people. But after entering into the department, I asked myself, “Why did I do this?”


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For the last 23 years I have adjusted to the atmosphere of the government system with great difficulty. For the first five years of my service, I realized that our duty was to entertain the officers with good facilities and comforts and extract more and more bribes for them from the contractors. During the service I had to cater to the needs of my superiors for many reasons. Afterwards, I tried to question the officers regarding corruption and bribery, and due to this my basic rights were curbed immediately. I went through a lot of torture.

During 2003, I was the assistant executive engineer in the K.C. Canal Modernisation Project at Kadappa. I questioned the irregularities that were being carried out by the officers, the contractors and many representatives of my own executive department, and submitted them to the competent authorities, including the national Human rights Commission and the State Human rights Commission. But these competent probing authorities visited the site and gave them a clean slate.

I was taken into police custody on 18 September 2003. For five-and-a-half days I was subjected to physical and mental torture, and I was dumped in the police stations’ punishment cell. The police tried to establish false charges against me and lodged false complaints. The police version is that I am a Maoist, and because of this the court put me into judicial custody for 68 days and I was tortured there. I begged the police to allow me a newspaper to pass the time, but I was denied even this right.

I was told every day that I was going to be “encountered”. I passed my days in jail in a state of extreme tension. Through the intervention of Mr. Giri, a senior People’s union for Civil Liberties member, I was released and taken to Hyderabad.

I approached the government’s Vigilance and enforcement Department, which had given the clean chit to the project. The department refused to look into my allegations that 74 engineers and six construction companies misappropriated more than 500 crore rupees of public money and should be exposed as criminals. As a result of this, I approached the High Court in 2004 with these same allegations; but so far, no one has been punished.

I am getting my salary without doing any job, and whenever I approach the government for a placement, the officers tell me that I am getting money for nothing, that I should enjoy my life and stay anywhere I wish. But they are not going to give me any work. What I want to say is that, even if one wants to perform ones duties correctly because of his conscience, he is still not given work.

The police alleged that I am a blackmailer, and on that pretext, they put me in prison. Afterwards I gave a First Information report to the police with a complaint against 108 officers, but none of them are being called to court even after the declaration of the vigilance department. until today, I only have a job on paper. Whenever I approach the authorities for postings, some police officer immediately interferes and threatens to kill me in an encounter.

I could not stay at my own place in Kadappa and I went to Hyderabad. I am now moving around, staying with my friend, Giri, and others.

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even after the national Human rights Commission and the State Human rights Commission accepted my complaints against the officers and came and took statements from all of them, I fail to understand what happened afterwards [and whether any action has been taken]. But the government has been freely giving me my salary for the last ten years. If I approach anyone for work, they tell me that I am a blackmailer. How can I survive in a society like this? The salary is around 14,000 to 15,000 rupees and not adequate. For the past 23 years, I have stayed in the same position as an assistant executive engineer, whereas all my colleagues and friends have been promoted twice and are at least divisional heads, dispensing crores of rupees. I have appealed to the Chief Secretary to the Chief Minister of Andhra Pradesh to tell me why I am being paid my salary without performing any work and to please give me something to do.

Together with my colleagues, I am involved with the All India Crime Prevention League. Kindly hear my case and allow justice to be done.

Ram Kumar Ajmer, Rajasthan

My sister’s husband was coming from the vegetable market on 24 november 2004 at 8 p.m. There is a railway crossing between there and his house. Two policemen were standing on the railway crossing. They stopped him and asked him where he was coming from and where he was going. He told them he was going home.

Then, the policemen asked him how much money he had. When he tried to run away, the police threw a stick at him and broke his leg. They took my brother-in-law to the police station and beat him throughout the night. The next morning, they took him to the hospital.

After three days, we came to know about the incident, and we asked the police what had happened to my sister’s husband. The policemen told them that he tried to run away after committing a theft. We asked: “How could he steal anything when his leg was broken?” They told us that they didn’t know anything about that.

We have filed a case with the Government railway Police against those policemen, but until now nothing has been done. nobody is ready to help us, and nobody even thinks about helping us.

Thank you.

Moirangthem Gandhi SinghBisempur district, Manipur

My father’s name is Tombi. I own a goldsmith shop in Moherang town. On 15 August, after coming home from my shop and eating lunch, I was having a rest when a team from the Moherang Police Station came and arrested me.

The policemen wanted me to identify a few people who were already present in the police station. They were people who had come to my shop a year earlier to sell


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some gold. The police put me in a separate room. Two policemen interrogated me. They asked how much gold I had bought. I told them that since the transaction had happened about a year ago I could not tell them the exact amount without looking in my register.

We went to the shop, and there I showed them the amount of the transaction. The police demanded that I return the gold, which I said I could not do. I told them I could only return any profit that I had made out of that transaction, if there had been any.

The police started slapping me on the back of my head. Then, I was shut alone in a room. It was already dark. I was not given any food or water, even though I asked for some. I didn’t have a single drop of water all night.

At around 8 a.m. the following morning, the police again called me to their office and told me that if I returned the gold they would release me. I told them I couldn’t do that, as I no longer had the gold. They started beating me with a rod. When I insisted I could not give back the gold, they beat me on the back of my head and face. After torturing me for a while, I was sent to another room. even on that second day, I was not given anything to eat or drink. I was threatened again the following day and the next day.

The police people took 2,000 rupees from my family on the pretext that they would release me after getting the money. But even then, I was not set free. I spent another night in the police station. I fainted because of the long starvation, as well as from the torture that I had been subjected to. At about three or four o’clock in the afternoon of 17 August, I fell unconscious. I regained consciousness two days later in the regional Institute of Medical Sciences Hospital.

I was finally released from there on 8 September, after being operated on due to the torture and starvation that I had suffered and because of complications that arose afterwards. I am still recovering. I cannot eat solid food. even now, I can have only semi-liquid food.

I expect the Human rights Commission to help me in whatever way it can.

Viktal Hedge People’s Democratic Forum, Karnataka

I come from the central district of Karnataka, which has now been declared as a national park. It is part of the Western Ghats, and there are about 12,000 Adivasis living there in 34 villages.

I have been taking up the issues of the Adivasis for the past ten years. First, it was against the Kudremukh iron ore plant, and then when they declared the national park area and asked the people to evict, we formed an organisation called Kudremukh national Park Viruddha, of which I am the president.

The Maladana area almost resembles a war-zone. There is a climate of fear, and no one knows or can tell when the police may enter a village or a house and pick up anybody there for

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questioning. There are around 3,000 families inside the national park zone, and there are about 1,000 policemen deployed to control them.

The movement first started with the Kudremukh national Park Viruddha Vukkutta [an organisation that the victim belonged to] taking up a very democratic struggle, but in 2002 to 2003, naxalites entered the area and took up the same issue, protesting against the eviction of the farmers from the park. Since then, there has been a series of encounters. So far about eight naxalites have been killed, and yesterday we witnessed the killing of four Adivasis who were not naxalites, but innocent people living in that area. One of them was the office bearer of the Kudremukh national Park Viruddha.

On 12 July, the police entered the house of two of the four Adivasis who were killed yesterday. The people inside the house were unarmed; they were the common people of the village who were members of my organisation. As they were unarmed, the police could have easily surrounded and captured them, but they shot and killed them, took the bodies outside and did not allow people to go near the place of the incident.

now, since the Kudremukh national Park Viruddha Vukkutta is also struggling against these fake encounters, the police have registered fake cases against our office bearers, including myself. I have been fighting for various causes for the last 30 years, out of which I have been working for the past ten on the issue of the national park and the Adivasis’ rights. By now, there are about 16 cases against me; all of them are fake cases and are being transferred from one police station to another.

Because the Kudremukh national Park Viruddha Vukkutta has complained to the State Human rights Commission and the national Human rights Commission, cases should be filed against the policemen involved in the fake encounters and for registering fake cases. There have been a series of fake cases filed against the members of the organisation by the police. Some of the cases are so flimsy; they only say that a person has incited the people against the police.

One of the cases which has been filed against me, in particular, asks that no matter what happens, I should not participate in any public meeting for one year. This is a kind of moratorium on my public participation in events.

The pressure from the police is now so heavy that they have given instruction to the villagers not to cook more than what is needed for their own consumption, because previously they entered people’s kitchens and examined whether people had cooked food for the naxalites. The villagers have been asked to wear their traditional clothes, because naxalites wear modern trousers and shirts. But sometimes when they go to shop in town, they do wear pants and shirts, and because of that they are considered suspect. The Adivasis carry plastic sheets with them, as they live in an area where there is extensive rainfall, but the police do not allow this because naxalites also cover themselves with plastic when it rains. These are the some of the examples of how the police have imposed restrictions on the villagers and have turned the whole area into a police state.

Last year, the Anti-naxal Force released a book containing a list of naxalite supporters, and my name was the first name on the list. They have accused me of being a naxalite supporter,


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although for the past ten years we have been struggling with this problem in an open and democratic way.

So, this is the situation in the national park area. It resembles the situation elsewhere in India – wherever there are tribals struggling for their rights. The main difference, though, is that there is no Salwa Judum in Karnataka as yet, but the police themselves are working like the Salwa Judum. The repression has got to such a pitch that the police have filed a report against two people in the village alleging that because they cooked more food than was needed for their own consumption, it was for the naxalites.

We have presented the whole case to the national Human rights Commission, but unfortunately the chairperson of the Commission at the state level has himself suggested that a Salwa Judum kind of struggle is the best solution for this problem. This is the thinking of the State Human rights Commission about the struggle. We have been trying to pressure the government into retreating from this kind of repression.

Two boys who gave testimonies yesterday have become orphans. The government has made vague promises to the boys, but nothing has come of them. So, I request this tribunal to take up this issue and pressure the Karnataka government to take care of the two boys who spoke yesterday.

Thank you.

Kamala Tamil Nadu

I got married in 1995, and I have three children. My husband’s name is Vella ravi. In 1996, the police questioned my father-in-law regarding the whereabouts of my husband. When my father-in-law said he didn’t know where my husband was, the police lodged a false case against him and arrested him. My father-in-law was sixty years old and was kept in police custody for three months and tortured. My father-in-law could not bear the torture, and when he was released he committed suicide.

In 2001, my husband was arrested on a false charge and remained in custody for about three years. Following his trial in the Special Court. he was released in 2003. The Chennai police then told my husband that he could no longer stay there and should leave immediately. We went to my native place – Karnataka.

We were in Karnataka for about three years. On 22 May 2007, the parents of my husband’s business partner, rajkumaran, filed a complaint with the police stating that my husband had kidnapped him. The Tamil nadu and Karnataka police joined forces and started enquiring about my husband’s whereabouts. When he learned that the police had gone to Bellary to look for him, he fled to Hubli, together with a translator called Gunna, on 28 May, where he stayed in a lodge with my brother for three days.

On 31 July, my husband called me and said he would be coming home the next morning, but he never arrived. I tried calling throughout the day on his cell phone, but it was switched off.

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In the evening, I got a call from Chennai telling me that my husband had been killed in an “encounter”.

When People’s Watch – a human rights organisation – asked the police why they shot my husband, Vella ravi, they were told that he had been conspiring to kidnap an ex-member of the legislative assembly, Venkata Swami. They said they shot him while attempting to arrest him. On the same day, Venkata Swami made a statement saying he did not know anyone called Vella ravi and did not think that he was planning to kidnap him. He sent a letter to that effect to the Chief Minister of Tamil nadu. This statement was published in several magazines. In the fake encounter, Gunna was also killed.

M. S. Giri

[Shows short news clipping] This is a small clipping of the police shooting in Mudugonda, which is a small mandal [administrative division of about 6,000 people]. They were participating in a dharna, or agitation, for the implementation of land reforms that had been sanctioned by the Andhra Pradesh Government under the Konneru ranga rao Commission.

There was a dispute between the Assistant Commissioner of Police [ACP] and the Communist Party of India [Marxist] [CPI[M]] leader of the mandal. The police had planned to kill the leader of the CPI[M] on that day. They invited a crew from a local TV station called eTV to be there; they filmed the entire incident and then aired it.

Since there was a dispute ongoing with the CPI[M] leader, the police wanted to kill him anyhow. They came to the site of the dharna, and a small fight between the CPIM leader and the ACP broke out. When the police attacked the leader, the people became agitated. They started abusing the ACP, and fighting broke out between the people and the police. The people started pelting the policemen with stones. One policeman was injured in the eye, and that triggered the incident that followed.

The policemen fired 180 bullets and shot 56 people, out of which 26 people sustained bullet injuries and nine people died on the spot. What happened to the rest of them is not known, and we could not find anything out about them.

This was what happened.

Advocate Shakeel Ahmed Maharashtra

I would like to start my testimony by telling everyone about the Director General of Police in Maharashtra State, Mr. Pasricha, who was given a three-month extension when he was due to retire.

A few people filed a writ petition in the High Court questioning his extension. The State government then filed an affidavit in the High Court

stating that after the verdict on the Bombay blasts [an attack that killed around 900 people in 1993] was made public, some anti-social elements were trying to disturb the atmosphere and create a disturbance as a result of the Sri Krishna Commission [a Commission created to probe into the Bombay bombing]. These people were trying to disturb the peaceful atmosphere of the


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city, and they were about to form an organisation, but Mr. Pasricha handled the situation very efficiently. He not only restricted the activities of these anti-social elements, but also did not allow them to form any kind of organisation. We [the State Government] needed an officer of his caliber, and this was the reason why we gave him an extension.

now, you all know very well what the Maharashtra government is trying to do in the name of the Sri Krishna Commission. It has been 14 years since the Bombay blasts in which 900 people were killed, some 300 people disappeared and property worth crores of rupees was destroyed. But until now, not even a single person has been convicted. As explained by Farooq Mapkar in his testimony earlier, the policemen who were accused of firing randomly and killing many people were examined by the Commission, found guilty, and recommended for prosecution. But they have all been promoted instead.

The situation in Maharashtra and the state government’s affidavit show its position.

We are discussing the role of the state government, politicians and the police, but I would also like to make you aware of the situation in the judiciary, and how it has responded to the situation. Did the judiciary not have any role to play throughout those 14 years? The judiciary has always worked against the victims of these riots, which were started by anti-social agitators. Farooq Mapkar has explained how a case was registered against him under Sections 302 and 304 of the Indian Penal Code.

When I was defending Farooq in the Sessions Court, one witness testified that he [Farooq] was injured by “police fire”, but the court omitted the word “police” in the record. When I protested against this, the court did not agree that there had been any omission. When I asked the judge to read what they had recorded, she shouted at me and said, “It is my job, and I have already done it”.

When I checked the record during the next hearing, the word ‘police’ was missing. I raised the issue again, but the court suppressed my argument by claiming that I did not want to continue with the trial, which was why I was making a disturbance, and threatened to file a complaint against me with the Bar Council. When I again requested that the word “police” be included in the records, the court threatened me and asked me why I was behaving like King Harishchandra [an ancient Hindu king famous for being the ultimate upholder of truth and morality]. The court then started asking Farooq about the place where he worked, whether he had applied for leave in order to come to the court, and how he had gotten there.

We can see the same thing in the Sri Krishna Commission’s report. The mother of someone called Aadam Sayyed has testified to the court that her son was taken away from before her very eyes by the police. The High Court refused to admit her testimony as evidence, stating that it accepted the police’s version, which was different. The implications of the Sri Krishna Commission’s report has been pending in the Supreme Court for the past ten years, but until now it has not taken any action [for example, passing an order for interim relief]

When Bal Thackeray’s case came up in the Bombay High Court, instead of looking into the issue of the riots that had taken place, the court read Bal Thackeray’s articles and concluded

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that if they were to go into those matters immediately, it would hurt people’s sentiments. The court closed the case after giving a statement to that effect.

The government made applications in the lower court regarding many cases, but the magistrate closed them without even asking a single question. Sixty per cent of the cases were closed after a summary trial, without even the magistrate’s permission. When a case goes to the magistrate after a First Information report has been filed, it is the magistrate’s duty to enquire about it if the case is closed without his permission, but he never does.

So, the judicial system does not want to give justice to the people. The judiciary is equally as responsible to the people as the police are. Farooq has very nicely explained about the government, but I find the judiciary equally answerable.

If there is no zebra crossing in a certain place in Bombay, the judges take newspaper clippings, file a suo moto writ petition, and pass orders against it. But here, where hundreds of people have been killed, they have not done anything for those people until now. So, we have a question before us, which we must answer: With this kind of government, this kind of police and this kind of judicial system, how can we get justice?

Thank you.

George Pulikuthiyil Jananeethi Institute, Kerala

I would say with respect to custodial torture and death in custody, Kerala’s situation is comparatively a bit better than that which exists in north India. Within three months of the present state government coming into power in 2006, there were 18 custodial torture and death cases in Kerala, and the government came in for huge criticism.

The government appointed a commission headed by Justice r. rajendra Babu of the Communist Party of India [Marxist] [CPI[M]]. He was very much a party worker before he was elevated to the bench. He was appointed simply to make a whitewash for the government, which he did. He presented them with a report justifying what the police had done. According to him, there were only two custody deaths, and the rest had happened for other reasons; we don’t know what sort of justification he gave.

I said that, comparatively speaking, the number of torture cases in Kerala is lower than in north Indian States, but that does not mean that the situation there is in any way better. People’s democratic and civil rights are still in jeopardy.

I would refer to the talks given yesterday by Dr. Ilina Sen and Anuradha from nandigram and the one given this morning by Vrinda Grover, our distinguished friend from Gujarat. If the Party in power wants to stop torture taking place in Kerala, then it can. But what happens now is that if a person criticizes the party in power, then he is branded a naxalite and considered as a threat to society.


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The fact that you are a member of a naxalite movement or a political outfit is not a problem. We have hundreds of well-respected people who are known to be deeply involved in the naxalite movement in Kerala, but they are not branded as a threat to society. It is those who oppose the land mafia, the large-scale filling of paddy fields or the encroachment on nature that are branded – it is those who question the party in power. And the main stakeholder in the government, the CPM, is branded as a threat to society.

Here are a few examples: Four youngsters, two boys and two girls, came from nandigram to Kerala to explain what has been happening there. They came first to my hometown, Trishu, and talked about nandigram. The next day, they had another session in ernakulan. They stayed overnight at Kalamsiri. After midnight, they were picked up by the police on the pretext of having connections with naxalites. Actually, they had no relations with the naxalite movement, but they were going against the interests of the Kerala state government.

Secondly, we have Mr. Govindan Gutty, who lived in Hyderabad. He had some family problems with his in-laws, having killed his brother-in-law and mother-in-law. He was put in jail. While he was there, his wife was taken in by the police. She was raped by several policemen. It was all filmed, and the video was sold in the market.

When Govindan Gutty was released after some years in jail, he was threatened by his in-laws, so he came back to Kerala. For the past few years, he has been living in ernakulun. He runs a paper called People’s Marks. Five years ago, he criticized the government’s economic policies. Because of that five-year-old article which he published in his paper, this man was arrested two months ago. He was put in the central jail and has been continuously denied bail by both the trial and the High Court; he is still in prison. ever since he has been there, he has been on hunger strike. And now the court has ordered that he be taken to the hospital every second day.

Another case concerns a young lady called Jayshree who opposed the mass filling in of the paddy fields. This went against the interests of the local party secretary. She and her husband were branded as Maoists, and their house was raided by a group of 30 policemen. The house was searched, and allegations made against Jayshree under Section 380 of the Indian Penal Code for theft and under Section 454 for house breaking. All this came about because of a person called Mallaya reddy from Andhra Pradesh, who was taken into custody in Kerala and was wanted in Andhra Pradesh. Jayshree was alleged to have Mallaya reddy’s laptop in her house. When her house was raided, it was just like a war. There were 30 policemen in uniform searching and raiding the house of ordinary and decent people.

Another case concerns Mr. Vergis Kuttuarumbil, who also fought against the land mafia. now, he is on the police’s hit list and they have described him as a naxalite or Maoist.

It is like an emergency situation in Kerala. every environmental and human rights activist, every civil liberties activist is under threat. Their names are on a police list, and they are continuously being raided and questioned. And they are kept under surveillance. That is situation in Kerala now.

Thank you.

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Madhvi Joga Dantewada district, Chhattisgarh

I am from Dantewada district of Chhattisgarh. The Salwa Judum attacked my village and completely burned it, killed all the cattle and destroyed all my tools. While going back, the Salwa Judum and the police stole all our possessions and money. The police killed six of the villagers.

The Salwa Judum shoots anyone they see. After our villages were destroyed, we hid in the bushes and made our way to Andhra Pradesh. We live in the forest, and we do get a little help from different nGOs. Sitara, an nGO, has set up a school deep inside the forest for our children. The nGO Sitara also provides them with some food. In the forest, we do not get a lot of food, which is why our children have swollen abdomens.

Amrit Lal Uttar Pradesh

As of 2007, the Forest rangers have been troubling us a lot. They take our things, beat us and claim that where we live is a government mountain. They take away resources from villages, as well as taking over many bighas [acres] of village land. When we oppose this, they say that the property is theirs and that there is no place for us. The situation is now so

bad that we no longer have anywhere to live. Wherever there is space, the Forest rangers encroach upon the land and put boundaries around it.

Five, six or even ten people are picked up simultaneously and taken to jail. They say, “These people have become netas [powerful]. Let’s book them because of that”. Cases are filed against us, and we have been jailed two or three times. They accuse us of planting bombs. In 2007, they arrested us and took us away while we were at our shop. They filed cases against the village people which said that they should not be granted bail. Once, they arrested us in the evening at 6 p.m., kept us in the thana [police station] until the following day, and the day after that, they threatened us.

They tell the Trust and the nGOs that help us, “We don’t know where you get these people from – what do you make of them? We will lodge such a case against them that they won’t easily get bail”. The people from the Trust worked so hard trying to get us released.

For three-and-a-half months, we were locked up in jail. My lawyer worked very hard to release us quickly. The Forest rangers had lodged such strong cases against us that it was difficult for us to get bail. They have done such things to all the members of the family, so that we had to run to and fro from the jail to keep fighting the system.

Thank you.


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Professor Sreedhar People’s Democratic Forum, Karnataka

Karnataka was seen largely as a peaceful state as compared to neighbouring states in South India – at least that is how the people there represented themselves in the past, but not so now. There are two important developments that are threatening the rights of the people: One is the growing communal violence and communal forces, and the other is, as you can see, the kind of struggles going on elsewhere in the country.

West Bengal has its nandigram. We have something called nandgiri, where SeZs are planned. But because of the violent events that happened around nandigram, I think the Karnataka government is trying to go slow on nandgiri.

In the morning, we saw how in the western areas the central government designated a large portion of the forest as a national park, leading to untold misery of the people there.

The naxalite movement started in a very decisive way in Karnataka in 2002. At the same time, and in around the same place, the Sangh Parivar – the Communal Forces – also started increasing their pressure. We have a Sufi shrine in Chikmanglur district, but the Sangh Parivar claimed it as a Hindu shrine and wanted to establish a temple there, so they started a lot of activities.

Human rights activists and all other progressive people started protesting. These people were also involved in raising the issue of tribals and tribal rights. now, it is said that whoever raised his voice against the Communal Forces or in favour of tribals is seen as a naxalite. As is happening elsewhere in the country, the term “Maoist” or “naxalite” is like an excuse for the State and the government to suppress the people.

I also work for a small human rights group called People’s Democratic Forum. And when a couple of “encounters” took place, we, along with a few other people, started pressuring the government by making a public demand that they should stop this kind of encounter, and if possible, start a dialogue. One result was that the Chief Minister, who was as confused as ever, talked to us several times and gave us vague promises that, “Yes, the suggestion was important, and the government should talk to the naxalites instead of killing them.” But it so happened that somebody else asked him to talk to them, but he said that he had already spoken to the naxalites, meaning us.

We were only trying to bring these two groups together – or two forces together – in order to create a space for a dialogue. But that was not only misconstrued. Santparwar also used it to say that, “It is these people who are instigating violence”.

Viktal Hegde, who spoke to you this morning, told you how cases have been booked against him. even a very ordinary person who is not involved in any organisation in a big way, like me, was also attacked by people from the Sangh Parivar in my own college, while I was teaching.

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now, looking at the testimonies that have been shared so far, I feel that whatever we knew in a vague way before,is now becoming clear. It is not that there are two economic Indias in this country. The gap between the rich and the poor is what we keep talking about and hearing about, but now we also see that there is a political divide. In other words, there are two nations with two different rights, two different kinds of principles, two different kinds of immunities. We are trying to see the other India here – the one that is largely ignored by the mainstream media. Thus, the context in which this is happening becomes very important.

This point has been made already, but I think we need to keep talking about it, because the context in which the people’s struggles are brutally suppressed is important. We have to understand that the events that are happening now and the phenomena that we can see are also a direct result of the changing nature of the Indian State; whatever little welfare it had available in the beginning has now completely dried up. The State has come out very clearly with its policies and programmes, which tell us indirectly but forcefully that the State is no longer responsible for the welfare of its people. It is working on behalf of only one part of political India, whereas there is a big chunk of the country where people are crying out, hitting out and getting brutalized.

This is the situation as we see it, and I feel that this divide has to be understood. By looking at, or into, the nature of the State, which has changed a lot, we see the Prime Minister saying that the struggles are a kind of threat to the nation’s security. The question is: Whose nation is he talking about? And for whose sake is he trying to create a kind of security? I think we will have to shape our struggles with these kinds of questions in mind for years to come.

Thank you.

Narayan Rao Andhra Pradesh Civil Liberties Committee

I am the District Secretary of the Andhra Pradesh Civil Liberties Committee [APCLC]. In Andhra Pradesh we have a status called “missing”, whereas in other States it is called “encounters”; it is only the incidents of torture that have gone down.

recently, the APCLC started a case in the High Court on encounters. It started out as a single judge bench, became a full bench and is now a five-judge bench. Currently, six people from the APCLC are involved in this case.

On 15 August 2006 there was a Member of the Legislative Assembly in the Mahopner district called nasa reddy. He was killed by the Maoists, together with six other people. After that, three students were “encountered”. A first-year student and another from Mahopner district were arrested. After ten days, they were produced in court. The police told them that, even if they did get bail, the police would “finish them off”. After being scared for a few days, their parents got them out. They took an auto to the bus stand. The police went there in two jeeps, arrested them and took them away blindfolded almost as far as the neighbouring district, nalkonda. The parents were taken as well, but were thrown out of the jeep during the night.


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There is no clue as to the location of the students until now. We filed for habeas corpus in the court, but were told that the Superintendent of Police has to report on the students every month. Other than that, there has been no progress on the issue.

For the first time, the court has given an order on encounters saying that the police must be named before any case can be started. The court also ruled that the police’s name should not be disclosed publicly to prevent them from facing any problems from the Maoists. Currently, there is a five-judge bench dealing with such an issue, and in Andhra Pradesh it is causing a hullabaloo.

The APCLC is very clear on the issue of human rights. In politics, there needs to be a change in the way of thinking; on that issue, we will keep working.

Thank you.

Yusuf Ali Gujarat

During the Gujarat riots, I used live in Baroda. My house was completely burnt down. We were forced to move to a camp. After two months in the camp, we came back to our place. One day at about 3 p.m., I had ventured out to purchase some vegetables. People started shooting at us. A friend of mine was killed, and my brother-in-law, too, was shot. After six months, my brother-in-law started suffering from kidney failures, as the bullet was still stuck in his foot. He was operated upon, but died the next year.

I used to drive an auto-rickshaw in 2005. After working through the night, I came back home and fell asleep. My house is one of the first Muslim houses after the Hindus. At about 10 a.m., my wife and kids woke me up and told me that there is something dangerous going on outside. So, I told them to go to my in-laws’ house, which was behind mine. After having personally dropped them, I came back to lock up my house. There was a State reserve Police personnel outside my house. He asked me my name. After I told him my name he took out his rifle and shot me, and it is only by God’s grace that I am alive. He shot at my chest. I was unconscious and admitted in the Intensive Care unit for ten days. After three days in another ward they [the police] registered cases of theft against me. After falsely accusing me of crimes I had not committed, they put me in the central jail; I was eventually released on bail.

Shabnam Hashmi Panel member

Friends, I don’t want to take up too much time. The statements I have listened to for the past two days make it difficult for me to speak. These statements are so depressing that trying to improve the situation seems almost in vain.

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The Gujarat elections have been held recently, and an activist who was working against fascism faced a lot of problems. He was disgusted by all those incidents. There are only a few people who are fighting against fascism.

There are organisations in every part of India with perhaps 1,000 people. But these 1,000 are facing a network of rSS, Vishwa Hindu Parishad, Bajrang Dal and Shiv Sena people that covers every section of society, including government, culture, media and the judiciary. They are in front of us everywhere, and they have made a strong impact on people’s hearts and minds. The people who are against them are feeling isolated. The reason for this is that political parties are not giving importance to opposing these factions and are not able to see that they are a big threat to India’s democracy.

The struggle for greater autonomy and self-determination, which is taking place in Kashmir, Manipur and other parts of India, is not finding solutions nor achieving its goals.

Parveena Ahangar spoke from the podium. Her son has been missing for the past ten years. Her’s is not a unique case; there are many similar cases like Parveena’s. Professor Sreedhar explained that every single person who has come here represents many others. Like Parveena’s case [in Kashmir], there are more than 10,000 similar cases in the Punjab.

Today, in the other auditorium we listened to Abba, whose son was arrested by the police and accused of militancy. Like him, there are more than 10,000 to 20,000 other people who do not have any idea about the fate of their young sons.

The struggle that we are talking about is a struggle for our wealth – our country’s wealth – of which the poor has only a little. Big companies like Tata, Birla, reliance and many other multi-national companies are capturing this wealth. In the past, these multi-national companies used to come in through the back door, but in today’s global arena and with this new liberalism, they are coming in directly through the front door, taking poor people’s places.

People from every corner of India have a different struggle, and there are different goals. Only sometimes do we get an opportunity such as this to discuss our feelings under one roof.

I will ask a question to you all: Can we change the situation through common grief? Can we call it a common fight? Can we convert each individual’s struggle, or the different struggles in various parts of India, into a collective struggle for democracy, for freedom, and for equal rights? That is a major question that we are facing today. Are we in a position to do that?

I am basically an activist fighting against communal forces. When I look around at the different forces, I feel extremely depressed and hopeless at what is going in the country right now: hopeless because I feel people like us, who are waging the battle against the communal forces’ web, are nothing in comparison to their forces. And in the same way, our forces who are struggling against globalization are tiny when coming up against the State and those who are against the poor. And probably they are tiny because we are raging this struggle in different areas and on a very small scale. If these different small elements could have some possibility to bring together what is taking place in different parts of India, then we could call it a common struggle, and we could be together.


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I am not talking about being together only in meetings and seminars, or to make a website on the Internet, or to do networking, which is a word very commonly used by nGOs. nor am I talking about exchanging mails. What I think is that it cannot be achieved until the establishment of political forums happens. I don’t have any idea how or who can do this, and I am not able to do it myself.

Colin has been saying for two years now that we need political parties or political forums. This idea has been experimented with in many parts of India. Mukul Sinha is also involved in this. Shameen Modi has also established a political party. An all-women political party has also been established in Maharashtra by Megha.

These paths are not easy, but we don’t have any other option because of the 1947 dream. I am not saying that we are all part of that dream, but I am part of that country which has seen the dream. I am a part of this dream, because from the day when I opened my eyes, I have been hearing about this dream. My father spent four years in jail under British rule; the British tortured him.

In my home, the only thing that was discussed was what type of country we should have and what kind of constitution we should create in which every person would be treated equally. every person would get equal status, no matter whether he be rich or poor. This might have been a socialist dream, but the dream was broken. now, we are standing here to save our democratic rights.

Fortunately or unfortunately, I am part of many negotiations taking place on issues like the repeal of the Prevention of Terrorist Act [POTA], which someone has already talked about. Those who were charged under POTA, despite the repeal, are still in the jail.

A struggle against communal violence is also going on. Many drafts are being passed by our Home Minister Shiv raj Patil in the Rajya Sabha [upper house of parliament] which favour communal violence. He is part of the negotiations every time issues like the POTA repeal, the Forest Bill or the Communal Violence Bill are discussed.

A long struggle took place against the Forest Bill. even after this effort, the rules were not notified until ten days before this seminar. The role of government as I have seen it during these struggles is still fascist. If you go to different parts of the country or talk to the government, especially with the Home Minister, then you wouldn’t guess that the Minister is from a democratic country; he speaks very brutally.

There is only one path. I don’t have any answer [to] why there is only one path, and I am leaving this for you to think about. Those who are poor, marginalized and backward – Dalits, Adivasis and other minorities – should get together with those who are secular and have a belief in that dream. They have to make a big effort and to be together.

It must be said that we don’t need any political parties. We will try to save our dreams and our country ourselves.

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Javed Pathan Gujarat

You must all know about the Dargah riots, which took place on 1 May 2005. At that time the riot was taking place four kilometers from my home. I was standing in front of my house. The police came and told me to go inside. A policeman asked me my name, and when I answered that my name is Javed, he shot me, and now one on my hands is useless.

I was kept in the hospital for a month, and then I was sent to the jail for 12 days. While I was in the hospital, narendra Modi came and said that nothing would happen to me. But until now, he has done nothing [to help].

On the day that I was shot, 18 other people were also targeted. Their condition is so bad that the people who lost their legs on that day are now begging. They used to do hard work, and now they can only beg. Six or seven months ago, they were called to Delhi as I have been, and now they are begging in front of the mosque.

Before, they were rickshaw drivers, and I, too, used to pull a rickshaw. But now I cannot do it anymore. I am not doing anything now. I am just working as a labourer. This is the life I am living. Yusufbhai who has just spoken, lives near me. During the riots, the police’s behavior was so bad that they did not even leave pregnant women alone. They beat women on their stomachs.

I just want you all to do something for us. That is all.

Babloo Loitongbam Human Rights Alert, Manipur

Well, friends, we come to the end of the listening session, where we have heard victims talking for themselves. It is time for us to reflect on what is going on. Having heard the testimonies, I would like to share my thoughts on these testimonies and look at the history that we have gone through in terms of confrontation with the State.

It was September 11, 1957 when the Home Minister of this country introduced a Bill – the Armed Forces Special Powers Bill – to deal with what he called the hostile nagas indulging in dacoitry, robbery and arson and which gives the military forces of this country a blank cheque to do what they want.

This was an exception to the rule of a democratic, sovereign, socialist republic and implemented to deal with a dissenting voice. This involved a very small section of society in the remotest corner of the country, on the border with Burma. It did not prick the conscience of the people. It took the Parliament about half an hour to make a decision on this: to give blank cheque to the military to kill as many nagas as possible. There were some dissenting voices in the


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Parliament, particularly from Manipur, who tried to make sense in the Parliament saying that this is martial law in a different form. They [said that they] had heard stories of tribal women going to the church and being raped and that this Bill will not help the country; it will only make the problems more complicated. But these voices were drowned out, and the Armed Forces Special Powers Act was passed. As you all know, Sharmila has been on hunger strike for the past 8 years demanding the repeal of this Act.

I would like to refer to the words of learned Advocate Vrinda Grover: Torture occurs in a context. What I would like to stress further is that for those are trying to deal with dissent, torture is a completely useless tool. Dissent cannot be dealt with by force; dissent must be dealt with by discussion, by engagement and with political processes. The first experiment came with the nagas in the 1950s – the whole of the naga hills were devastated. In the 1960s the present state of Mizoram came into the flames. This was the only place in the country [in which] the Indian Air Force aerially bombed villages in a brutal display of force. The 1970s came: Tripura, Manipur. The 1980s came: Assam Valley, and we see the whole northeast burning in these last decades.

And, this exception is increasing: the whole northeast was an exception, Punjab became an exception in 1983, where a similar act was promulgated but it was never used [it was more the police, rather than the army]. Jammu & Kashmir became an exception when the problems started in the 1990s. And we are now facing the situation where 21 out of 28 states in this country are facing some sort of armed resistance.

If for some reason the policymakers think that it is through torturing, executing and disappearing people that dissent will be suppressed, they are sadly mistaken. It is time for us to say that there should be no exceptions. Torture is like slavery and like genocide: It should be stopped without any exception.

For example, I was disturbed when I heard the statement of the President on 26 January 2007, on Independence Day, one day before many naga people demonstrated in Delhi. We still use two concepts to justify the use of brutal force: One is terrorism and the second is naxalism. The President made a statement saying these are the two biggest threats to the country, and so we must use force against them. One question is: How do we define terrorism in this country? I have no qualms about naming those that plant a bomb in a public place that kills innocent people terrorists, and this should be condemned. But there is also a definition that includes those who want to secede from this country, and this is the ideology that has been used: Because they want a future of their own outside of this union, they are worth killing.

That was the logic that was used against the nagas in the 1950s, the Mizos in the 1960s, against the Tripurese and the Manipurese in the 1970s, Punjabis in the 1980s and the Kashmiris in the 1990s, and now everywhere. This ideology persists, even amongst the liberal thinkers: that it is okay to torture, rape and kill people who want to be out of this country, and that in these circumstances it is justified to use torture. Why are we not trying to open up a debate where issues can be raised, where dissent can be voiced and using the political processes, rather than branding them terrorists and naxalites and eliminating them?

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After working for nearly 15 years documenting cases of torture, it is my view that torture, extra-judicial executions and forced disappearances are no longer administrative problems – they are not. Because, even when you try and do every process correctly, starting from filing FIrs to making the right complaints to the right authorities, it simply doesn’t work. This is because there is no political will at the top. And so, it is not so much to do with a lack of knowledge or a lack of understanding, but a lack of political will to deal with these cases. This is because certain doctrines have been infused: whether that of national security, of development, of different ideological perspectives. A sort of smokescreen has been developed to justify torture. Torture should be condemned in every form and in every circumstance. India has already signed the CAT, and we should call for the ratification of the Convention. We should pressure our MPs to get a commitment from our MPs and so-called representatives of the people that your voters, whose vote you want, cannot be tortured and cannot be ill-treated under any circumstances across the board.

I agree with Colin that we need to use the legal process to fight the system and with Mr. Singh, who has his rehabilitation centre in Kerala for torture victims. And, you may have great facilities in Kerala, but frankly speaking, I think that what we need is access. Six of my friends have come from Manipur; we came a day early and had a tour of Delhi. And they all thank the Indian Army for having tortured them, because if they had not been tortured they would never have been able to see Delhi.

Thank you.

Geeta Singh Udham Singh Nagar district, Uttarakhand

The police have spread terror all over uttarakhand under the guise of fighting Maoism.

In 2004, when several labourers from Haspur-Khatta were arrested, the police came to my house four or five times. They came once at four in the morning, when my husband was not at home, and took away one of our

sons. When I asked them why they were taking him, the police refused to give any answer. They were from nainital and from Lalkuan, whereas our home is in uttarakhand.

Again in 2005, when neelkant, Jeevan and Anil Chaurakoti were picked up in Gadarpur, as P. C. Tiwari has earlier mentioned, they were told that in radhapur and Kantpur there had been some shooting, and they have been caught up in the melee, even though they had done nothing. They were arrested in Gadarpur.

The police came to my house many times to ask questions. They came twice in the night with guns. They upturned everything in the house and scattered everything. When we asked what they were doing, they didn’t say anything but simply gave us the kind of filthy abuses that police officers give, which I cannot mention here.

After that, they asked, “Where is he?” I asked them: “Who are you asking for? Why are you coming into my house? You have no warrant or anything”. They said that they had every right


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to enter the house. I replied that I also have the right to ask you why you have entered. They said, “Shooting your mouth off, eh?” I replied: “I’m not like other ordinary women. You will have to tell me why you have entered the house and give me the reason. Show me the warrant”.

After that, my youngest son, who works at the Central Post Office and comes from noida on Sundays, was arrested. They took him away, saying that he was the son of the master of the house. When I tried to stop them, they pushed me. They put him in the car and went away. After that, he was in their custody all night. I called a friend of my husband’s, who is a journalist. They kept my son throughout the night and threatened him many times. And later, in the morning, they let him go.

On 11 november 2005, my husband [Pratap Singh] was arrested in Sethgarh as he was returning home. At that time, I wasn’t aware of what had happened, as I was ill and had been advised to stay in bed for three or four days. After two or three days, when we couldn’t find out where he was, my brother asked a bus conductor if anyone had been arrested. The conductor said that someone had been taken away from Sethgarh, but it was not clear why he was arrested or where he was taken.

We went on questioning and searching. Meanwhile, a report of what had happened appeared in the newspapers, and after much asking around, I filed a First Information report at the police station. Our lawyer also agreed to find out what had happened. But when he found out that the media and everyone else have found out, he made my father and brother-in-law sign to say that we had been called for questioning two days earlier.

You people must know how much “truth” the police tell. They say different things in different circumstances, choose people from different places and show contradictory evidence.

My husband publishes a magazine called Pranashu. They are doing a lot of commenting and conjecturing. My younger son was made to sit and was told: “Your father is writing seditious things in the newspaper”. My son answered that he was writing nothing of the sort. They said that he was trying to provoke the public, to which my son retorted that they should show him the evidence.

Justice Malay Sengupta

Panel member, West Bengal

Good evening, everybody. I remember the views expressed by Professor Qadri and Mr. Patil yesterday about this being a platform on the basis of which one can understand what is happening in the different parts of the country. Actually, we were concerned with our state only, but now after coming over here, we understand the problems going on in other places. I have come from West Bengal, and some of my friends are from Kerala; both of us belong to Communist-run States.

In West Bengal, the Communists have been ruling intermittently for the past 35 years; that is not the case in Kerala. even though in Bengal the Communist parties do not play a big role, if

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anybody opposes the policy of the government, he is marked out as a person who does not want industrialization, who does not want the state to prosper and does not want any globalisation.

You can see that the people who are opposing Tata’s car project are also opposing other projects, such as the one in nandigram. But they are not opposing industrialization or globalization; they are simply saying that Tata should not be favoured with very fertile land. Yesterday Mr. Talwar, and today Mr. Datta, agreed that – even though the land is used for multi-cropping – it is being destroyed for the sake of establishing a car industry. That is very unfair and very unkind.

We have been looking at Sharmila’s picture for the last two days, but have you seen the picture of Tapushree Mundu? Mahashweta Devi, nana Patekar and I were holding a protest in Singur. We discovered that the body of a girl, Tapushree Mundu, had been deposited near there. We were told that she was the girl who had organised a crowd of women carrying broomsticks who drove away the police. The police were very angry with her, and one day she was found burned alive in a field that had been identified as the place for the Tata project. According to the police, she went to the field with a hurricane lantern to relieve herself and was burnt to death by the lantern. These are the things that are going on.

Another problem we are facing is that, although a Communist party is in power in the state in alliance with the Forward Block Party and the revolutionary Socialist Party [India], known as the rSP, they are not raising their voice. Just a few days ago, or a week maybe, the Forward Block did raise its voice and protested in Dinhata. This resulted in the killing of five people – all were shot in the head and chest. These are the kind of police atrocities that are taking place and have been going on for a long time.

I am from West Bengal and fully endorse what Dr. Singh said about something needing to be done state-wise. He has done a very big job, and we need to organize such centres state-wise. Dr. Lenin has also said he will be organising similar seminars on a smaller scale. These would be very helpful, as people will come together and exchange views to learn about what is being done elsewhere.

Since I am from the judiciary, I would like to say something on its role. Some comments have been made against the judiciary, though I did not concretely find anything in what was being said about the judiciary that was similar to what has been said against the police. Instances have been given and general comments have been made that we have not consented to the Convention Against Torture [CAT]. In spite of this, as judges like Krishna Iyer stated in the Verghese case, until we ratify the CAT, we cannot do more than give judgments.

The attitude of the judiciary is changing gradually, in spite of this. We have a number of good judgments, such as Vishakha’s case, Chandrima Das’s case and lots of others, such as D. K. Basu’s. D. K. Basu’s case has been referred to today as being only on paper, but the judiciary cannot do more than this. They have proposed a formula for people’s protection, but we can only put a check on the actions of the persons who execute the judgments.

With these words, I thank everybody for these two days.


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Satish Kumar Madurai district, Tamil Nadu

I am a law student from Vandiur village in the district of Madurai. On the evening of 25 February 2006, while I was coming back from a temple, a police jeep started following me. Suddenly it stopped next to me, and the police inside started questioning me. They did not pay any attention to my answers and all of a sudden slapped me. When I started protesting, the driver banged the door shut. They had a rod inside the jeep and started hitting me with it. I was in such a bad state that I couldn’t even protest. Then, they loaded me into the jeep and took me to the police station.

It was as if they had made preparations for me beforehand. As soon as I entered the police station, I was handcuffed and beaten. They punched me below my chin and started hitting me mercilessly. They used cigarettes to burn my hands and poked my eyes with their fingers. They punched me on my shoulder. I kept asking them what crime I had committed, but they never paid any heed to my questions. everyone in the station beat me mercilessly. I was in no state to protest and became unconscious. They kept splashing water on my face so that I couldn’t even breathe.

The next morning, while I was unconscious, the police attached me to drips and gave me some treatment. That afternoon they took me to the Magistrate, where I was asked whether or not I had been informed that I had been arrested under Section 307 of the Indian Penal Code. The Magistrate noticed my condition and, instead of remanding me, sent me to the government hospital. I did not receive proper treatment in that hospital, so I went to a private one, where I stayed for 35 days. After my release, I approached the regional Transport Office, the Collector, the Home Secretary and the State Chief Minister, but no one did anything.

The strangest part is that, although I was arrested on 25 February, the First Information report states that I was arrested on the morning of 26 February. All the police documents are false. My plight has been documented in numerous magazines, periodicals and newspapers, but despite this nothing has happened. even though I filed a case in the High Court, it was of no use, as the police “proved” it was false; thus, again nothing happened.

My father was a police officer for 30 years. When he came to know about the incident, he approached all the senior police officials in the districts, but all his efforts were in vain, and nothing happened.

Before this incident I was fit and healthy, but due to the police brutalities my left leg has become useless; thus, my economic situation has also worsened.

Finally, I would like to thank People’s Watch, the various nGOs and all the judges present for giving me this opportunity [to speak].

Thank you.

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Judge C. UpendraManipur

My fellow panel members, human rights activists and human rights defenders: For the last two days we have been hearing about the different kinds of human rights violations, tortures and troubles created by the army, the police and others. From whatever the witnesses and the persons who represented them said, it seems to me that in India all these tortures are very similar.

I think there is some kind of police guidebook; otherwise, how can torture be the same all over India? In Tamil nadu, Kashmir, Manipur and elsewhere, they must be following a “Bible” in order to produce such tactics, ones that use a uniform mode of torture and execution.

However, in Manipur, in Kashmir and in nagaland and Assam in the northeast of India, it is a little different from other areas. The Armed Forces Special Powers Act is itself inhuman; in other states there are no such acts. There, people face trouble only at the hands of the police, but we – the people of Manipur, nagaland and Kashmir – are facing problems from the army, as well. The government of India is now following a “look east” policy. With such a policy, they are trying to liquidate people, but it is simply giving the army power. This is the difference between the northeast and the rest of the India.

The Armed Forces Special Powers Act, as my learned friend, Mr. Babloo, remarked, was enacted in 1957 by the then-Home Minister Mr. Pant to curb the naga revolt. But this is no longer the case. The Act has now been extended to other parts of Manipur, as well as to Assam, Mizoram and Arunachal Pradesh, and even to Jammu & Kashmir. This Act is the copy of the earlier Act – the incarnation of the 1942 Act of British India. The original Act was an emergency measure of the British in India that was used to curb the Quit India Movement. Although that Act was extended throughout the country, the Armed Forces Special Powers Act has been extended only to northeastern India and Jammu & Kashmir. now, this Act is causing us a lot of trouble.

As my learned friend from nagaland said earlier, there is a cease-fire in nagaland and Mizoram, but these two are not what one would call troubled states. The most troubled states in India are Manipur and Jammu & Kashmir.

In Manipur, I think the AFSPA was introduced when there was no rule of law. These army people see all the young men as extremists trying to secede from India. So, in the name of curbing extremists, they arrest people, torture them, fire on them and kill them. In Manipur, the army, the security forces and the police think that all the young men are carrying arms and arrest them. They do not follow the principles laid down by the Supreme Court, but shoot them simply on suspicion. They shoot them in the head and chest and then put some arms at the place where the victim was killed, claiming that he was trying to attack them. They conjure up fake encounters, then after making an arrest, they take the person to some far-off place, interrogate them and torture them. They beat the person, who then usually dies in custody. The


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point is that, if things were to be done according to the law, these persons would not lose their lives. But the security forces do not follow any procedures during these arrests.

If they arrest women, they do not take any women police with them. When they arrested Manorama sometime back, they did not show any arrest warrant, and there were no female police present. Despite the fact that her house was only two kilometres away from a police station, the police did not take her there, but to some faraway place. In that place the police asked the Officer-in-Charge whether he would take her into custody, but did not hand the lady over. In the morning they dropped her somewhere near some hills. Afterwards, there was a lot of hue and cry. This is the case of Manorama.

I commissioned an enquiry, but was restrained by the High Court from speaking about the issue. I was asked to hold the commissioned enquiry within the Assam rifles compound, but I refused, saying that, “If you force me to do this, I’ll quit as the chairman of this commission.” Then, the High Court suggested holding the commission in the jail. There was a huge hue and cry by the people of Manipur. Various women’s organisations went to the Prime Minister. The Prime Minister convened the Jeevan reddy Committee to hold an enquiry into the matter and to look into whether the AFSPA should be repealed or not. The Committee suggested repealing the Act and incorporating only essential provisions into the new Act. The AFSPA has not yet been repealed.

With this, I would like to conclude.

Advocate Mir Hafizullah Legal Adviser, APDP

respected members of the panel, and my dear friends: 10 February is a special day for the Association of Parents of Disappeared Persons [APDP] because on 10th of each month, we protest on the streets of Srinagar, demanding the formation of a committee of enquiry into the disappearance of people from Kashmir. We have been putting forward this demand since 2005. I don’t want to get into the number of disappearances from Kashmir, because everyone must be aware of it, since Kashmir is a big issue. It cannot be discussed in minutes or even hours. I would have sought for a separate Independent People’s Tribunal for Kashmir, but if it can be discussed here, I’m ready to discuss it in any forum or on any stage.

I will not be doing justice to it if I simply explain the situation in Kashmir: what is happening there, what has happened there and is continuing to happen. I have come here, therefore, to appeal to Indian civil society, which has been totally indifferent towards Kashmir. Indifferent, in my eyes, means to stop giving consideration to the people of Kashmir, neglecting what they want. In this respect, society is being very conscientious about Gujarat and other states, even nandigram, but is ignoring what is happening in Kashmir, even though the situation is known to everyone.

There are commissions which have been formed even in undemocratic countries. I can tell you that in Sri Lanka, where more than 60,000 people have disappeared, a commission has been set up to enquire into the matter, and they have identified the people who have gone missing. even

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in the Philippines, which is a small country, there have been 1,500 disappearances, and there, too, a commission for identifying people who have disappeared has been set up. Cases have been filed, and people responsible for these disappearances have been prosecuted for their crimes.

But I fail to understand how India, despite being the largest democracy in the world, has no such commission. I recently received an email in which it is said that 57 countries have signed a convention on forced disappearances; it was signed in France, and India is one of the signatories to the convention. Obviously, it is very unfortunate that only two countries have ratified this convention: One is Albania, and the other is Argentina.2 Two more countries are in the process of ratification, but the unfortunate thing is that India is not ratifying this instrument so that it will become law. What I understand is that enforced and involuntary disappearance is the most heinous crime among the violations of human rights. The number of signatories to this convention has increased to 72, but we need another 25 countries to sign it so that it will become a very forceful law.

I am here to appeal to Indian civil society to pressure its government to ratify this convention, so that the people who are responsible for the crimes can be punished. We are not going to touch any political issue relating to Kashmir in this IPT, because it is a totally different issue from what people are here to talk about, and I may not be able to tell you all that has happened politically, or what is happening.

In 2005, when we passed the resolution in Delhi [calling for the formation of a committee of enquiry], there were 60 victims’ families – and also a few members from this panel – who signed the resolution. It was sent to the Prime Minister’s office by uma Chakraborty to request the setting up of an independent commission to enquire into the disappearances. But we have not received any response until now.

Kashmiris also believe that if there is to be a credible independent [Indian] commission, we do not need an international commission. Kashmiris respect the Pandian Commission [Justice S. r. Pandian Commission of Inquiry, probing the killing of eight persons in the Brackpora police shooting on 3 April 2000], which has produced a report on the issue. If such people – or the lady who has spoken out openly against human rights violations in Kashmir – will make up the commission, we common people will accept it. Once we find that the commission is acceptable, we, Kashmiris, will agree to its recommendations.

A judge is accepted if he is fair, just, impartial and dispenses justice. We don’t have any objection, so long as the victim who is at the receiving end of the violence believes that justice will be handed down impartially.

So, let me state that I am asking my friends present here to cooperate. We are only seeking the appointment of such a commission and the revoking of the Armed Forces [Jammu & Kashmir] Special Powers Act of 1990, which has been responsible for the disappearances in Kashmir. Let us hope that together we will work for this, because it is a cause that everybody should support, and it is of great concern for all of us and for all human rights activists.

Thank you.

2 In fact, four have ratified the convention; the other two are Honduras and Mexico.


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Advocate R. V. Gupta Mumbai, Maharashtra

respected panel members and friends, I am from Mumbai, Maharashtra. I want to speak here on the topic of the fake encounters perpetrated in Bombay.

In other cities, policemen kill people in the name of the Armed Forces Special Powers Act, but in the city of Bombay they kill people using the pretext of [linkage to] two members of two rival gangs: One is Dawood Ibrahim, and the other is Chhota rajan. The police label someone as a member of one of these mafia gangs, and then they kill that person in an “encounter”.

even though I have been a practising lawyer in the Bombay High Court for almost nine years, I, too, have suffered from this. I am not a lucky man, as I was not able to save my own brother’s life.

My brother was picked up by the police on 11 november 2006 in Vashi. From there, he was taken to a place some forty kilometres away. He was killed there in a “fake encounter” at about 8 p.m. on the pretext that he was working for the Chhota rajan gang. He was alleged to have been running the entire Chhota rajan gang in Bombay following the death of rohit Verma, who was an aide to Chhota rajan. This is a very unfortunate thing. According to the police, he was handling the work of the entire Chhota rajan gang, but the irony is that he is an ordinary man who used to travel in an auto-rickshaw; he did not even have a car.

Articles in all the Bombay newspapers ran the same story: that the police had got information about him, they laid a trap, and there was a confrontation between my brother and the police, in which he died. All the stories said that the alleged man was a gangster – a sharpshooter. Surprisingly, though, not a single cop ever sustains bullet injuries in any incident, and in this case, only the “sharpshooter” was injured and died.

My submission to this panel is for you please to look into the issue of the city of Bombay, where the cops kill innocent people. For the most part, those people are killed in fake encounters by people who have transformed themselves, who have broken away from criminal activities and are acting as contract killers. My brother’s case was also a case of contract killing, where a contract worth 50 lakh rupees was made and my brother eliminated.

My humble submission, please, is that you look into the Bombay city matter, where similar incidents are coming to light and the lives of other people who might be killed in fake encounters could be saved.

Dr. S. D. Singh

Panel members, brothers and sisters: I’ve been asked to talk from a different perspective. You have all been listening to the testimonials. In the morning, I made a statement which emphasised medical testimony; so, I’ll be talking on the importance of medical testimony and how it will help torture victims.

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The objective is to help the victim, prevent impunity and repression and facilitate rehabilitation. If these are the headings under which we are thinking, do we want the judiciary to play a vital role, a pivotal role, or an important role in helping the victim? If we want the judiciary to play a vital role, how do we proceed?

In a democracy, we want the judiciary to play a vital and central role; otherwise, it will not be a democracy. So, to establish the facts before the judiciary, we may have to document the whole process. We may have to document the type, the method and the purpose of the torture, along with the damage caused – not only emotionally, but physically, mentally, socially and in all other respects.

How do we document this torture? Who will do it? The competent persons to record the physical evidences or the signs and symptoms of physical and psychological torture are doctors. But are the doctors doing it? We need lawyers, doctors and witnesses to work together in a coordinated effort. Of course, lawyers can present the truth – that is what we present before them. We need to have a detailed medical testimonial, both physical and mental, prepared in the quantified and elaborate way that is described in the united nations format called the Istanbul Protocol.

Sadly, only a few doctors are conversant with the Istanbul Protocol style of reporting torture. If the doctors can do the reporting in that format, then no doctor will need to be called to the court to give further explanations or further narrations. Talking from the doctors’ angle, what they feel is: Why should we get involved? What is our role in this? My question to them is: Aren’t they Indian citizens? Don’t they have any commitment to protect Indian democracy? Don’t they have any sincerity towards the victims who are in pain, agony and filled with distrust? Just by giving medication, or by doing some counseling, or by performing a surgery on the victim, are they doing justice to the victim? no, they are not.

I would say that in order to present convincing evidence before the judiciary, the medical profession, including doctors, have to be pulled into the scenario; they have to act for the cause. unless and until they sincerely act, we are indirectly going to promote impunity. I’ll tell you how and why.

Suppose there are a hundred cases for which testimonies are being provided before the judiciary or a jury panel. If the judiciary is able to find some discrepancies in them – either in the date, the time or the location – they will say that the party was unable to prove it beyond reasonable doubt. But the peculiarity of the medical evidence is that, once the doctor makes a complete examination of the entire process and includes all of the specificities in his report, that report cannot afterwards be changed, even by the doctor who first made it. The medical document is a permanent, concrete document, and not even a court of law or anyone can change it. Only if the doctor is willing to do a complete examination – i.e., a physical examination including reference to multiple specificities – only then can such a concrete document be made.

This morning I referred to a case in which somebody came to our centre with multiple slap marks on the left side of his face. I was able to prove to the judiciary that there was trauma. With respect to the time and the circumstantial evidence, the doctor may not be able to do


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much. It is up to the other witnesses and the prevailing circumstances to prove it before the judiciary. Similarly, for example, if you have 100 cases, and you lose 95 of them, and nothing is coming out of it, are we not promoting impunity? The perpetrators should be booked and punished. It should come to the notice of the public.

There are methods and mechanisms with which we can find out the signs and symptoms of torture. Modern technology has to be used. Tests like brain mapping may be costly, but if we can afford money for the treatment and money for the lawyers and for collecting evidence, then it is not an expensive phenomenon.

To examine, an individual a doctor only needs correct information and knowledge. But are we doing it? Our medical fraternity is reluctant. Fortunately, I had my training in torture medicine, which is a specialty in Western countries.

We initiated our organisation under the supervision of Supreme Court Justice Aiyer. V. r. Krishna kept pressuring me by saying, “Can’t you do something about it? You medical professionals can do something. Why are you keeping quiet?” I profusely thank him, as it was at his instigation that we initiated the centre.

earlier, I showed the six-column method. If our staff tells me that the victim was taken to such and such hospital, we meet the doctor there and ask him how he has examined the victim, has he done a full medical examination, and if not, then why not. We take over. We meet the expenses incurred, refer the cases to other specialists and see that the medical testimonies are completed.

If we could have at least one centre in each state where we could conduct a complete medical and psychological examination and where a document could be given to the victim or to his lawyer, that would be the greatest support we could give to the victim. Without that document, whatever the lawyer says, whatever the court thinks, whatever the victims say – the court will again come to the conclusion that there is no concrete evidence.

I wrote to the Supreme Court of India, the High Court of Kerala, and the national Human rights Commission that all the courts should have a panel of doctors who should be trained in torture medicine, and whenever there is a complaint about torture the court should ask the trained doctors to examine the victim. In our state we have trained about 60 doctors, and we are continuing to train more. We are also collaborating with lawyers so that we can support victims fully, so as to prevent impunity and rehabilitate the victims. I strongly suggest that we need a coordinated effort to carry out this work.

If any centre or organisation is interested in starting a centre along the lines of our model, we are in a position to guide and train people and volunteers. The only thing we need is prior notice from them so that we can plan the training. I strongly feel that only if we make a coordinated effort can we stop the impunity.

When we talk and hear about such things, it makes us highly emotional. But emotion has nothing to do with reality or truth in a court of law. A court of law does not entertain emotions;

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a court wants concrete evidence. So let us work with the objective that we are here to help torture victims, not to express our own emotions or to sympathise with the victim.

Dr. Hanif Sanchetana

Listening to you, I have heard that all of you are victims in one way or another, either from the police or the naxals or the political parties. However, we are unfortunately victims from both sides: on the one hand from the police, and on the other from the naxals.

Some Adivasi people crossed over from Chhattisgarh to Andhra Pradesh in February 2006, and from 1 June 2006, we started a small medical camp providing treatment and aid to them. Some people are afraid to work in these areas, but my team goes. The naxals have protested many times, warning us that they will shoot us if we work in the area. We ask them why? They reply that we might be police informers and that the police can even send doctors to gather information.

The plight of the Adivasis is really bad. Their children do not get food and water and do not have access to medicines. under such conditions, they are dying in the forest, which is why we are prepared to work for them. We want to help them. If they want to kill us let them, but we are still prepared to work.

We started with a team of seven. Initially, the naxals gave us problems, and even the police did not help. Sometimes, when we are in the forest areas giving medical attention, food, water and clothing to the Adivasi children, the police come and ask us what we are doing and why. They arrest us and take us to Badrajulum. There, the Chhattisgarh and Central Intelligence personnel ask us what is our connection with the naxals; in this way, the police try to scare us.

In February 2007, naxals killed one of our workers, saying that they had observed us going to the police station in Badrajulum on a number of occasions. They were alarmed that we were providing the police with information. But if we do not go to the police station, the police threaten us. What can we do?

On the one hand, the police are always trying to scare us, and on the other, the naxals are doing the same. We are being beaten and killed from both sides. We are continuously battling both the police and the naxals. We don’t want any killings; we just want to help the Adivasis live through their daily struggle.

I have a CD with me relating to the issues, and I hope all of you get a chance to view its contents.

There are a large number of people, especially from Dantewada district, Kunta subdivision, who have been displaced from their homes. In Andhra Pradesh, we have surveyed 1,126 people aged between six and 14 years old. Out of these people, only 19 are literate; the others know


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only what they have learned through the Janjagaran programme initiated by the government. It is a very limited programme and mostly restricted to learning how to sign your name.

This is the Adivasis’ plight. They are here in Andhra Pradesh. The police, the forest rangers and the Chhattisgarh Salwa Judum here come frequently and assault these poor people and burn down the small forest huts they live in. Clothes we managed to give them were burnt in the fire. The little money they earn by doing hard labour was also burned in the fire. This is why our efforts have not been so fruitful so far. We are struggling every day.

This month, some human rights activists came to us. They had a look at the plight of the Adivasis in the forest area and offered to help us. Another organisation called Action Aid from Hyderabad also came to us and has helped us initiate a few programmes so that we could provide nutritious food to the children and send them to school.

We have started 13 schools especially for these children from Chhattisgarh. However, these schools are in the middle of the forest, where there is no water. The children have to walk 10 to 12 kilometres to school and back everyday. They are desperate for water to drink. They cannot take a bath, so everyone has a skin disease. The conditions are very bad.

Fourteen thousand people have come to Andhra Pradesh from the Kunta subdivision. I have details of all these people. We have only one ambulance for these 14,000 people, who are living in an area of 300 square kilometers.

There is also a big problem of food. There is very little food to offer the children. They complain that they are unable to sleep at night. For four to five days in a row, they drink only water and sleep. However, now things are changing. Action Aid has been supporting us, and now the children are sleeping well. It is still a problem to meet the need for one square meal a day.

As we are running out of time, I will be unable to go into the details of all the problems we are facing; however, I shall offer my email ID for all those who are wanting to understand the problem in detail and help us in our initiative for the Adivasis. I shall provide more details, pictures and videos via email.

I humbly request you all to help our association or help the children directly by going to these locations. Go to their villages, provide them with food, water and proper education. In a survey it was found that out of 1,125 children, only 18 are educated and only up to third grade, at that. We want you to look into the rights of children in Chhattisgarh and at their level of education.

Since there is a shortage of time, I’ll wind up here.

Advocate P. A. Sebastian Panel member

The term naxalite seems to be a spectre which haunts the Indian ruling classes. Throughout these testimonies, throughout these proceedings, there have been two terms that have been used repeatedly: the “Government” and the “Maoists”. nearly always people used the two terms as if they were comparing them with each other.

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I want to make a distinction – a basic distinction, a fundamental distinction – between the two. Bertrand russell was a prominent person who espoused the cause of the Vietcong in Vietnam. His critics said, “The Vietcong also use violence. They fight a guerrilla war.” He agreed that this was so, but argued that there is a relation between the aggressor and the aggressed. Those who make a relation, a comparison, between the aggressors and the aggressed are on the side of the aggressor.

Please do not have any mistaken idea about this. I make a distinction; I do not make a comparison. I say that the violence that the government uses is violence as offence, and the violence that the Maoists use is violence as defense. Violence as defense is justified even in the Indian Penal Code. The Indian Penal Code was not drafted by Karl Marx; it was drafted by Lord Macaulay.

Mohinder SinghMohali, Punjab

I am Mohinder Singh, a retired technical officer from Mohali, Punjab.

My son, Jugraj Singh, was kidnapped by the Punjab police on 14 January 1995 from Mohali, while he was driving his Maruti van. He was taken to the police station and was tortured by the police. In the evening, the police picked up another boy called Sukhdev Singh Sukhi. The Central Intelligence Agency

took both the boys to Amritsar, where they tortured them a lot.

Sukhdev Singh Sukhi, who was an amritdhari [Orthodox Sikh] boy, was shaven by the police, who also cut his hair. They forced him to put on Kashmiri clothes. The Punjab police alleged that he was an unidentified Kashmiri terrorist, and they shot him dead. My son, Jugraj Singh, was tortured to death. They just kept the boys for one day only, and they killed both of them on the night of 15 January.

The police took the bodies of both boys to a village near the town of Beas, where they concocted a fake encounter. The police fabricated a story that the two boys were driving in the Maruti van at night. They were stopped and identified as terrorists and were eventually killed in an encounter. reporters from the Punjab Kesari, Tribune, and Ajit press were alerted and told the story. It appeared in the newspapers the following day.

My son used to stay at Mohali, and I came to know that he had been picked up on the night of 14 January. I went to the police station the following morning with two other people. There, I registered a case and filed a Daily Diary report. On 16 January, I read about the entire incident in the newspapers. The same day I sent a telegram to the Chief Justice of the Punjab High Court informing him about the incident and requesting him to kindly investigate the matter. until 16January, when I read the newspaper report, I didn’t know that my son had been killed.

A case was filed in the High Court, and the case went on for two years. I filed an application requesting the Court to hand over the case to the Central Bureau of Investigation [CBI] and to


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grant permission to get the car back for inspection from the Beas police station. The Court granted the permission, and I went to Beas police station with the Court order to fetch the car. There, I found out that the entire car had been modified and tailored by the police. I brought the car back to the Court in a truck for investigation.

My son had gone to Hemkund Saheb [a holy shrine of Sikhs] with his kids. There, he had clicked a few coloured pictures of the kids on the car. I luckily found them. I produced the photographs in the High Court and showed the difference in the state of the car prior to the incident and what it was like after I got it back. This was taken into consideration by the CBI, and they conducted an investigation for two months. The Deputy Superintendent of Police [CBI] told me that, if I could produce an eye witness, then they could prosecute. A boy who saw the entire incident met me and told me that he has seen the police kidnapping the boys. We filed his affidavit in the High Court and requested the court to direct the CBI to examine the boy as a witness. However, the CBI put up a lot of opposition in the High Court and did not examine the boy.

Two years later, the High Court transferred my case to the CBI Court in Patiala. There, the case went on for ten years: for two years in the High Court and another ten years in CBI Court in Patiala. The CBI Court delayed the pronouncement of the judgment for two years. During these two years, I used to be present in the Court every time there was a hearing. But on one unfortunate day, I could not go to the Court, and on that very same day the judgment was pronounced, and the CBI’s request was accepted by the Court. My case was dismissed, and it was all over for me – then and there.

My request to you is that you please kindly help me to get justice.

Thank you.

Sajida Bewa West Bengal

My son, Mintoo Mullha, and his friend, Jabbar Mandal, were arrested by the Border Security Force [BSF] and beaten up. After breaking their hands and legs, they shot them. My son was born two months after his father died. I raised him all by myself as a widow.

Translator accompanying Sajida Bewa

The lady is finding it difficult to express herself, as she has rarely left her village. Her son, Mintoo Mullah, who was 16 years old, and Jabbar Mandal, who was 19 years old were killed by the BSF near the Bangladesh border. This is a case of a fake encounter, as no weapons were recovered from the victims. This incident took place during the month of July 2006.

The BSF, along with the local police, opened a case against the deceased persons under Section 307 of the Indian Penal Code, i.e., for attempt to murder. However, no arms were recovered. We lodged complaints with various bodies, including the Asian Human rights Council. The AHrC also issued an appeal to pressure the authorities. Only after four months did the police

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start a case against two BSF constables, which ended in their acquittal. The chief judicial magistrate ordered the case to be re-investigated. The issue is still pending.

Thank you.

Resham BaiIndore, Madhya Pradesh

I have come from Indore, Madhya Pradesh.

On 13 September 2004, a policeman came to my house with a summons order for my husband. I told him that my husband was not at home and I would send him to the station after he came back. upon hearing this, the policeman started abusing and molesting me and pulled my sari.

Meanwhile, my husband arrived, and when he saw the policeman molesting me, he became furious and started a fight. Both men went outside. After some time, my husband returned and told me that in the heat of the moment he had killed the policeman.

My husband then surrendered himself to the police and admitted what he had done. The police took him into custody and subjected him to third-degree torture. Thirteen policemen beat him almost to death. I went to the station and pleaded with the police to have mercy on him. They ordered me to leave, threatening to beat me, too, if I refused. I left the police station helpless and crying, having no clue as to what would happen to my husband and my family.

The police took my husband to a faraway bypass and killed him there in a “fake encounter”. They then fabricated a story that he had snatched a gun from one of the policemen and had started firing at them. They alleged he was killed during the fire-fight that followed.

even after the incident, the policemen continued to frequent my house. They demanded that I give them raazinama [that I compromise myself], or else I, too, would be killed. I have filed four complaints against the police about their demand, but no action has been taken until now. I live in a constant state of fear and worry regarding my life and my children’s fate.

I reported the entire incident to the Superintendent of Police, Indore, the Collector of Indore District, and even to the Human rights Commission, but no one has listened to me or helped my cause. Since it was a matter involving the police, the whole case was scrapped.

An HrLn activist, Mr. K. P. Gangore, helped me file a complaint with the Judicial Magistrate, Indore, under Section 302 of the Indian Penal Code. After examining the evidence, the magistrate pronounced Sanjay Pathak, who fired the shot that killed Shyamlal [Mrs. Bai’s husband] as the prima facie accused and registered a case against him under the same section [302] of the IPC. However he did not pass any order against the other policemen involved in the incident.

A revision appeal against this was filed in the District Session Court and was partly allowed. The Session Court passed an order directing the Magistrates Court to find out whether a case can be made prima facie against the other 11 policemen; this matter is still sub judice.


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I plead to one and all to help me get justice and to relieve me from the mental agony meted out by the police. I also want my son to find employment so that our family can sustain ourselves and live with some dignity. I feel I have a chance of getting justice with the help of institutions like HrLn. I hope that other backward classes and Dalits are also being helped to get justice, like me.

Mangoo Dantewada district, Chhattisgarh

I am from Dantewada district in Chhattisgarh. The Salwa Judum started here two years ago, and the villagers in a few other places nearby joined the Salwa Judum even before that.

The elders of our village came together and discussed whether to join the Salwa Judum, who were organising a procession. The elders decided not to join. After this, we received letters from people in 10 to 15 other villages stating that if we didn’t join the Salwa Judum, they would come to our village with the police, break open our houses and shoot us dead. After receiving these letters we agreed we would have to join them.

There are 270 houses in our village, and one person from every house went with the procession, all of us empty-handed. People from other villages were carrying axes, bows, arrows, knives and other weapons, but we had none. We went 60 to 70 kilometres on foot, crossing two or three mountains.

There were thousands of other people, and we were at the back of the crowd. The others in the procession knew everything and were issuing directions about where to go and what to do. Those of us from the Dantewada district were told to go and burn houses in one specific village, confiscate all the grain, burn it, and spread it all over the ground. We were also told to seize all the cattle, poultry, goats, pigs and other livestock we could find and bring them back with us.

Others in the procession burnt all the houses, and we felt very sad about it. We almost felt like crying. We decided to go back to our village and die there with our children. I thought that there was no point in continuing with the procession and that I have ruined my whole life by taking part in it, even though I did not actually burn anyone’s house.

The leaders of the Salwa Judum fooled us into joining them by saying that we would go to other villages and make them join, too. But instead they burned their houses.

Himanshu accompanying Mangoo

Mangoo says that leaders of the Salwa Judum sent them letters saying that they had to join the procession. Initially, the elders of the village decided that they would not go with the procession but the [Salwa Judum] leaders threatened to shoot them dead. The elders then reluctantly agreed to participate in the procession. The procession reached another village after walking a long distance, burned all the houses over there, looted and burned the grain and seized the livestock and brought it back with them.

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The people of Mangoo’s village were terrified and were upset by this act, so they returned to their own village. Since it is forbidden not to participate in the Salwa Judum, Mangoo’s village was attacked again. now these people are hiding in the jungle and have two options: either to join the Salwa Judum and accompany government policemen to attack others villages or to be labeled as naxalites and killed by the police.

Chanda DeviUttar Pradesh

I am from Thana Cholapur, Aksava Gaon. I come here with my problems, and I have no support whatsoever.

One day, when my son was sitting to have food, a policeman entered the room and asked me what my name is and the names of my two sons. My son said, “Pehloo and Dabloo”. The police called both of them outside, and

they went out and asked the police what the problem was. The police replied, “nothing.” The police told me that they are taking my two children to the police station, and they will return soon. The police then took them and put some marijuana in their jhola [bag] and then accused them of being in possession of illegal drugs. The marijuana was around one to two kilogrammes.

It was a Sunday when I went to court, and I was informed that a FIr had been lodged against them. I asked them why. They asked me to go and said that whatever had to be written has been done, and I should go. I went, and on my way I saw my two sons crying and carrying a bag around their shoulders. The children informed me that they had been accused of being in possession of and selling marijuana, whereas I can vouch for the fact that my sons don’t even touch tobacco – forget marijuana.

When I overturned the bag, I found that there were utensils in the bag, and I informed the policeman that if I had a scissor I could cut the utensil and I would be able to prove that the utensil had no marijuana in it. The police asked me to shut up, and I retorted: “Why should I keep quiet?” The police then made the children stand at a distance before they approached their superior. I said that I also wanted to go along with my children and meet their superior. However, they scolded us and made the children stand at a distance.

After lodging an FIr, my two sons were then kept in policy custody for four to five days, and finally, I collected some money and had them bailed out. The case is still going on.

After receiving bail, my sons went out to work outside and took their children along with him. My sons toiled in very hot, dusty and dirty conditions, and after eight months they came back with 14,000 rupees that they had earned. As soon they came back, the police came back the very next day. They asked my son’s name; he said Pehloo. The police then took him with them. Pehloo asked the policeman where he was being taken, and they said, “We want to know where his sister lives.” I asked, “For what reason?” They said that they had some work. The police then took Pehloo to an unknown police station and beat him severely. For ten days I did not know about his whereabouts. I was so worried; I started looking for him everywhere. Some one would tell me to go to Lourabir, someone would say Jaunpur, then I would be asked to go


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to Jalaghar, and then I was asked to approach the Collector. I went mad looking for him in the sun. I did not find him anywhere.

I then requested my neighbors to give me some money so that I could take out a missing persons report through media. The daroga (sub-inspector) got scared and worried due to the report and immediately called me and asked me if I had found my son. I said no. He asked me to go to Adalhat. I asked him why he had not given me this information before. I finally found my son there, and he had become very weak; my son was very strong earlier. He saw me and immediately held me and started crying. In getting him out three times on bail, I spent rs.1500. We managed to get money from one place or the other and also by borrowing. We bailed him out again. During this period I met Shruti and Lenin from an nGO called PVCHr [People Vigilance Committee On Human rights], and my life was saved.

The police came to my house seven days after the release of my son for my signature. I said I would not do it, as I am literate. They then told my son to make me sign. He also said that he would not do it. The police have now started to come to my house often. My son earned 14,000 rupees, but his son did not even eat 14-paisa worth of food. I cannot survive without food. The Sub-Inspector has now asked me to come to court. I asked: “For what reason?” He said that I should go, as now the police would not come to my house. My children work eight months of the year outside and come back home only for four months in the monsoon. I have 15 biswasof land, but on the land the Adivasi and the Musahar (Scheduled Caste community) are fighting, and they want to occupy my land. Because of this case, to date I have not been able to build my house.

Dr. J. M. Prasad National Campaign for Dalit Rights

As you all know, in a caste-based society like India, we torture vulnerable communities who are mainly the lower castes. This was recognised correctly by Amnesty International in a 2002 report. Let me narrate some of the incidents.

In April 2007, in Kanpur uttar Pradesh, a Dalit rickshaw puller was beaten up by some upper-caste people. When the victim approached the police station to file a complaint, he was beaten by the police. In Himachal Pradesh, a Dalit boy approached the Superintendent of Police to file a complaint against a person who refused to allow her mother to fetch water from the well. In Punjab, a Dalit person was denied work in a police officer’s house and was beaten along with his son-in-law. In another incident, in Punjab’s nabha Jail the jailor identified a Dalit prisoner and stamped his caste name on his back and paraded him around the entire premises of the jail. In these kinds of serious incidents where the Dalits and Adivasis approach the police station to lodge a complaint and are humiliated, a counter-complaint is filed against them and they are taken into police custody.

There are certain myths prevailing in society about torture: that torture is common to all communities and has nothing to do with caste and community. untouchability and discrimination do not fall under torture. In the criminal justice administration system that Dalit

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and Adivasi victims are facing, general humiliation and discrimination are not considered as torture.

These are the myths that are prevailing in civil society. If you look, you’ll find that in some areas this discrimination is still prevailing. even today, Dalits are not even allowed to enter the police station.

In a study conducted by the Indian Institute for Dalit Studies on untouchability practises it was found that in nearly 40 per cent of the police stations throughout the country, the practise of untouchability is still prevalent.

Dalits are not allowed to enter the offices of the Station House Officer. They have to remain outside and lodge their complaints from there. Cruel, inhuman and degrading treatment is still being meted out by the police, as well as by other state agencies, and by enforcement officers.

Physical and the verbal abuse, using the name of the person’s caste, is inflicted not only on those arrested but also on those who come to visit them. Their caste name is abused and permission to visit their relatives is not given easily.

Beating members of the Dalit community, including women, at the request of the upper caste community is a common practice.

If an upper caste person approaches the police complaining that a Dalit has refused to serve them, the police takes that person into custody and beats them.

enforcement officers target Dalit and Adivasi women to suppress Dalit people’s efforts to avoid discrimination.

The police fail to register the Dalits and Adivasis’ complaints, and also fail to pursue any investigation or look up into the matter according to the available evidence.

In nearly 80 per cent of such cases, the police do not conduct any investigation. This is so, despite the fact that under the Protection Measures and the Scheduled Caste and Scheduled Tribes Act they have to undertake and complete an investigation within 30 days. But this is not happening.

In the Telangana area of Andhra Pradesh where Maoists are active, the police and security men make a caste-based profile during security checks, and then target the Dalits.

Directly or indirectly, the upper castes are armed, and are encouraged to commit atrocities against Dalits. These are the actual things which Dalits are facing every day -- right from the time they complain right up until justice is obtained.

The entire criminal justice system -- the investigation, the arrest, and the compensation – are all totally denied to the Dalits.

In this context we need to look beyond the conventional definition of torture. In a caste-based society, torture and other atrocities are related to the caste system. The most vulnerable group in this country are the Dalits, the Adivasis and other marginal sections and minorities. This is clearly recognised even by the united nations in its second general recommendation on the


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Convention Against Torture. It clearly states that the States Parties have to look beyond the Convention when deciding on what preventive measures and action need to be taken to stop torture against minorities. Thank you.

Munkee Chhattisgarh

My cousin sister and I were at home. The Salwa Judum people came, caught me and my cousin’s sister and took us to the police station; they kept us there for a week. They cut my cousin sister’s hair, made her wear a naxalite uniform and put her in prison. My maternal uncle came to the police station and freed me by paying a bribe of 3,000 rupees. The Salwa Judum people set my house on fire and burnt my entire stock of grain.

At present, we are hiding in the forest and are living on grass and whatever other plants we can find. The Salwa Judum captured and took all our cows, goats, pigs, poultry and other livestock and ate it. They did that in my village, which is Vichhapara. They burned all the houses in the village and confiscated all the animals.

They kept my cousin sister in the prison for a week. She was freed after paying a bribe of 3,000 rupees. Her sister was also alleged to be a naxalite and is still in jail. To date, we have paid a lawyer 25,000 rupees to rescue her, but she is still there.

Phoolvati Bai Dhega village in Madhya Pradesh

My brother-in-law had gone to the fields. On his way back, the forest guards caught him and took him with them. I went to where they had taken him to get him released, but they beat both of us a lot. The forest guards fired a lot of shots and hit us with the butts of their guns. They broke my hand, and it is still injured. My brother-in-law’s head was badly injured, and his jaw was fractured. They broke his hand, too, and fired shots at him. He still can’t use his hand and is unable to work.

His wife came to know about what was happening, and when she came to rescue us, they beat her with their gun butts, too. My husband, rambharose, heard about the incident; he came to rescue us, and the forest guards beat him, as well. He was shot in the leg and badly injured. My husband’s cousin came to hear about what happened. He, too, came to the spot and was beaten up badly by the forest guards. They even beat half the people of our village when they came to rescue us.

After the incident, we all held a meeting. We were all in a state of fear. We called up the Superintendent of Police and told him what had happened and that the forests guards were beating us. We requested him to take some action and recall the guards.

The SP came at about six o’clock in the evening and took me along with him, telling me that he would get me treated in the hospital. I told him that my husband was in a very critical condition and he couldn’t come with us. I asked the SP to get him treated in the village, but he

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simply took us along with him to rergaon and from there to a place called Harda [where there was a hospital].

He did not question me or arrange for us to be treated there. I was only given a medical examination. I stayed in the hospital for only one night. The hospital staff then asked me to vacate the bed and leave. I told them that the police investigation had not been finalized, and how could I leave just like that? Where would I go? The hospital forcefully threw all of us out. We lay down on the road. There, too, the policemen came and tore our clothes, picked us up by our arms and legs and started to carry us away.

My sister, Sanim, arrived with my brother, Santosh. She asked the police where they were taking us poor people. She said atrocities were being committed against us, and no legal action was being taken to stop it. She asked why nobody was taking any action and said that she would go to the court to seek justice. The policemen started abusing us and pushing us again. They were manhandling us; they tore off our clothes and exposed our chests. They seized all the documents and files that my sister Sanim was carrying with her.

The police took us to Bhopal and kept us there for three to four days without food and water. My nephew, a small boy who was with us, was also not given anything to eat or drink. They didn’t give us any medical treatment or any beds to lie on. The roof was leaking. My injured brother-in-law had to sleep on the floor. I didn’t receive any medication, either. We were made to live for three to four days in these horrible and inhuman conditions.

When I told them that my one-year-old child was at home and asked them to let me go, they released me, and I went back there. But they put my brother-in-law under house arrest and handcuffed him to the bed. He was in a critical condition after having been so badly beaten up and bruised and he received no treatment; despite this, they handcuffed him.

even now the forest guards threaten us, telling us to leave the house and abandon our farms. They even send us notices. Where will we go? Why should we leave our home? They still threaten us, saying they will come and drag us out of our house and beat us.

Shamim Modi accompanying Phoolvati Bai

She is Phoolvati Bai, and she lives with her family in a village in a government forest area. Her husband and in-laws used to farm the land inside the forest.

The ranger came there with fifty people and started beating them. He hit them with the butt of his gun. When Phoolvati Bai protested, he beat her as well. The villagers came rushing to the spot. nearly all the people accompanying the ranger ran away, but the villagers caught hold of him and his two aides and called the police. Instead of arresting them, the police took her [Phoolvati] and her relatives away with them and injured them all; they even broke her hand.

The police filed a case against the forest ranger under Section 155 of the Indian Penal Code [IPC] and a case of robbery and banditry against Phoolvati Bai and her family under Section 323 and 360 of the IPC. They were dragged to the court without having done anything, and judicial proceedings were initiated against 22 village people. no help is being given to them.


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The villagers themselves filed a petition in the High Court, which has issued a stay on their arrest. The Chief Justice of the High Court ordered the District Court Judge to investigate the matter, but the judge compiled a report that went against the villagers. This is a very sad and shameful incident.

Bhagwan Mahato Chhapra district, Bihar

We had a hawking stand in front of a petrol pump for selling vegetables. At about 6:30 p.m., the police came with a child. They asked the child, “Is that him?” The child answered, “Yes, sir. It’s him”. After that, there was no more questioning.

The Assistant Security Officer [ASO]’s car was standing a small distance away, and the police took me over to him. I told him, “Sir, I have been here for a long time – approximately 30 years. You can ask any of the shopkeepers”. The ASO slapped me on both cheeks, put me in the car and took me away.

I was taken to the Hamurganj Chowki [police post]. One constable went in and came out with a knife and a gun and showed them to me. He asked, “Do you recognize these?”

I replied, “Sir, previously, you had shown the same thing to a child to make him say that he had stolen a mobile phone and given it to me. You said that I was stealing and selling mobile phones, and now you are showing me a knife and a gun. I am unable to understand anything. What is your reason for doing this?”

The police replied, “OK, come with us to the thana [police station], and you will know.” We went to the police station, and straight away, the beatings began.

“How many people are there in your gang? How many children do you employ? Who do you compel to steal? Tell us the name of you gang.” They asked me all these questions.

I replied, “I’m here for 30 years… 32 years. At least find out what sort of a person I am.” They insisted I answer them. They asked the child, who was still there, what I had asked him to do. The child answered, “He makes me steal things, and if I don’t steal, he hits me.” They asked the child if he gave me the mobiles after stealing them. He answered, “Yes”. They asked him how many mobiles he had stolen, to which he replied, “22”.

I said, “Sir, ask him where the phones have been sold.” The child said, “At the shop.” I then advised the police to ask the child where my shop was situated, because when they arrested me I was not there, but rather with my hawking cart at the market. I said, “That child does not know where the shop is”.

The child became quiet and then again changed his statements. He said, “He makes me steal, and if I don’t steal, he shuts me in the house and beats me with a stick.” I said, “Sir, ask the child where my home is”. The child was silent and didn’t speak. Then he piped up: “It’s not in the house that he beats me; it’s in the lanes”. I said, “Sir, ask which lane”. When the child didn’t speak, the ASO started beating me saying, “Keep quiet unless you are spoken to”.

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They took me to a room where they tied my feet and started hitting me with shoes and with sticks. They said, “You will have to tell the name.” I said, “Sir, I don’t know anything.”

After that, people from the bazaar came there, but they were not allowed to enter the police station. A local resident, Vikas Tiwari, was among them, and they told him what the boy had said. After that, they beat me even harder on my legs and feet saying, “You will have to give the names". I said, “I am a poor man. I know how to earn money, but I don’t know any thieves” .When the shopkeepers came, I was left alone and made to sit.

Between 10 and 11:00 p.m. that night, the ASO called me again. There was another room in the police station that didn’t have a window. I was taken there, made to lie on a bed, and my hands were tied. After tying my hands, a lathi was tied between my legs by two police officers who started hitting me. They said, “Tell us the name.” I said, “Sir, whose name should I say? When I don’t know any thieves or outlaws, then whose name should I say?” They said, “You will have to tell us, at any cost.”

When my legs were in bad shape, they picked me up and told the other officers to get some water, which they proceeded to pour over me. The water was going simultaneously into my nose and mouth. I was unable to breathe, and I was getting angry, because I didn’t know anything, and they wouldn’t leave me. It seemed they were going to kill me.

After they stopped pouring the water, they said, “now, tell us. Tell us! Why are you facing all this beating? Tell us the names of 10 or 12 people, and we will leave you alone.” I told them again that I didn’t know any names. After that, they beat me so much that with each blow my ears were ringing.

After that, again, they started pouring the water. When they knew that the water would overwhelm me and they felt that I could have died, as my nose and mouth were blocked, they stopped pouring the water and said again, “Tell us. Tell us the names of 10 or 12 people, and we will leave you.”

They beat the right side of my face so much that it became disfigured. You must have seen the pictures in the newspaper? Then they started hitting the left side of my face. After beating me, they said, “now, tell us.” By that time, I was beginning to lose my voice. I said, “Sir, the truth is I do not know anything”.

eventually I started losing consciousness. They must have known that I was about to die, as I kept mumbling and repeating, “I’m telling the truth; I don’t know anything”. After some time, they left me.

The villagers came in the evening to the police station, but I was not set free. Some of my brother’s friends and a lawyer eventually succeeded, and I was released at 7 p.m. As I left, I asked the ASO about the boy; however, he refused to answer me.

After that, I went to the hospital for a complete medical check up. The same night some journalists interviewed me, and subsequently my problems were highlighted in the newspapers. But neither the lawyer nor the journalists wrote a complete and accurate report about my


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problems. They fashioned the statements in such a way that the ASO was portrayed to be innocent.

The next day, Daya Shankar from People’s Watch met me and took my statement. About a month later, Daya Shankar called me about filing a case about what happened, but I was subsequently pressured to withdraw it. In fact, the lawyer who had initially helped me threatened that I would go back to jail if I didn’t withdraw it, but I refused.

Since then, four or five policemen in civilian clothes come and visit me frequently and plead on behalf of the ASO. They have also visited my brother, who is a peanut vendor, and threatened him as well. I asked them again about the child at the police station. They told me that he was a delinquent and a runaway.

As I refused to take back the case, the police went on a rampage and closed many local shops, including mine. The police then took the shopkeepers to the police station and coerced them into saying that the ASO was not responsible. As a result of their consent, their shops were re-opened; my shop remains shut. I have reported this to the authorities, but it is still closed.

Salim Sheikh Vadodara, Gujarat

I’ve come from Vadodara, Gujarat. I was injured during the police shooting in 2002.

The incident took place on 25 March. We went to the police to complain about the people who were trying to kill us and asked them to protect us. Instead, the policemen threatened us, telling us to return to our houses or they would shoot us. We asked, “Whom could we turn to in that case?” but they did not listen to us. We decided to leave, but as we were going to get our children from our houses, the police started shooting at us, and I was injured.

I was admitted to the S.S.G. Hospital. After 15 days I went back home. The police came to my house and arrested me. I was booked under various sections of the Indian Penal Code, such as numbers 143, 147 and 148.

I said to the police: “Sirs, the people who are rioting are moving around freely. I am an innocent person. I was going to fetch my daughter, and I was shot at and was not part of the riots, and I have done nothing wrong. Why are you filing a case against me?” They just told me that a case was going to be filed. I surrendered to this and accepted my fate.

I told them I had not done anything, and I was against the rioters, but they did not listen to me. I told the police, “Sirs, please take action against those people who are rioting outside,” but instead they told me that no action would be taken against them, and that if I chose to stay there, then I would have to bear the consequences.

I thought, “now what can I do? I was just going to get my daughter, and I was shot at and dragged into all this.”

This is what I want to say. Thank you.

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Abdul Hameed Bundelkhand area, Uttar Pradesh

As a result of a fight between the Thokia Dassoo Gang and the Police [Special Task Force], my brother, Anees Ahmad, was falsely accused by the STF. They picked him up on 25 July; they kept asking him for money. He used to run a transport company. We took the matter to the Human rights Commission. In their decision they did not find anyone from the STF guilty. The Human rights Commission did not even ask for a Central

Bureau of Investigation [CBI] investigation. I request you to help me in getting a CBI enquiry done.

Dharmendra Singh accompanying Abdul Hameed

Veerapan-like gangs, such as Badia and Thokia, have troubled the area of Bundelkhand. And on the other hand, we have to deal with the local police. If you do not bribe the police regularly, then they will cause problems for you.

Anees was held for three days. We notified the Human rights Commission about Anees, as well as other higher authorities. The court was also notified that Anees was never involved in any kind of criminal offence. The police then lodged a backdated First Information report, where he was accused of killing a number of policemen in an encounter with the notorious gangs. His transport business was located fifty meters from the police station. All his past records are perfect. The CBI remains very indifferent, as they claim that the Superintendent of Police has investigated the matter, and thus the matter is verified. The only way out for us is a CBI enquiry. I request you to help us in getting the CBI enquiry done.

Habib KarimiAhmedabad, Gujarat

My son was falsely accused in three cases on 3 April 2003. That night, I was arrested along with my children and taken to the police “crime branch”. The police told us they just needed to take a statement from me, and therefore we had to go with them, and they would release us after four to five hours.

After giving the statement, we were kept at the police station for six days. On 9 April, I was told I would be released on the condition that I sign four blank pieces of paper. I told the police that I wouldn’t sign a blank paper and asked them to please fill them in. I said I would read them and would sign them if I found that nothing wrong had been written on them.

The officer asked me whether I wanted to leave or not. If I wished to leave from where I was being held, then I had to sign the blank papers. I asked him how this could be justified. He bluntly told me that I just had to answer “Yes” or “no”, and that if I didn’t want to sign the blank papers, then I would have to sit there.


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For six days I underwent immense mental torture. I could not figure out what I should do; I could not understand anything. They just made us sit doing nothing. The policemen used to come in every now and then and ask me about something or other. I was totally frustrated and exhausted. Finally, my children and I signed the four blank pieces of paper.

My son has been punished in two cases on the basis of the confession he made under the Prevention of Terrorism Act [POTA]; Section 32 of POTA states that confessions made to police officers are admissible in a court of law.

When the national Democratic Alliance government adopted POTA into law, Congress opposed the Act, saying it would be misused by the authorities. During the next elections, the Congress party declared in their election manifesto that they would repeal the Act retrospectively, but Congress did not repeal the Act retrospectively after it won the election. They repealed the Act after a lot of hue and cry, with immediate effect only when one month was left before the Act lapsed by default. This meant that POTA was still applicable with respect to those persons on whom it had been applied before it was repealed.

At the general session of the Jamiat ulama-i-Hind at ramlila Maidan, we presented a memorandum to Sonia Gandhi [President of the Indian national Congress] reminding her that she had promised to repeal POTA retrospectively in her election manifesto, but that this had not happened. Outstanding confessions obtained by the police under duress or by torture and beating or by forcing people to admit to offences or to sign blank papers were [still] admissible in the court due to POTA We asked her to repeal Section 32 of POTA, at the very least.

Mrs. Gandhi promised that a review Committee would be set up and would visit Gujarat. It would conduct an investigation, after which POTA would be repealed with retrospective effect. The review Committee did visit Gujarat, and after conducting an enquiry, concluded that POTA was not applicable for anyone involved in the Godhra Case and also in a few other cases. But the review Committee was not given any power, as such. It had to submit the report of its enquiry to the trial courts, and only if the judge of the court ratified it would it have any effect.

The trial court dismissed the application, and the High Court, too, dismissed the appeal. The case is now in the Supreme Court, where it has been pending for the past five years. The cases of the few other people for whom the review Committee’s report found POTA was not applicable are also pending in the Supreme Court. I want to appeal that the review Committee’s report should be implemented appropriately.

Chandra Bhushan Paswan Nalanda, Bihar

I humbly greet the respected members of the panel who grace this occasion with their presence. I also greet Matayan, my elder brother and mentor. My brothers and sisters, I greet you and may God bless you.

Sir I am a social activist and I have been serving the society selflessly for the last 15 years. The ethical and moral standards of the society have left

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an impression on me which is shameful to say the least, in which case I would like to put before you a few problems.

The incident happened on the 12th day of the month, around 8:30 a.m in the morning, when my wife, who is an Anganwadi activist, was conducting classes at her center. Around 10 a.m., four or five policemen, in civil attire, came to the Centre and enquired if the mid-day meal was being distributed, to which the reply was that the meal reserves were empty on account of not being reimbursed for the last three months. They asked for the register and gave the investigation registration. After which they directly said that she was being called by the Superintendent of Police [SP]. She said that if the SP wanted to meet her and anybody wanted to enquire something they could come at the Centre and do it, and that she will not go since there was no reason. Then the police forcefully took her away from there.

This happened at Berma Primary School where around two dozen policemen took her to meet the SP. She tried to ask where the SP was and if she could speak to him, but instead she was taken away in a van, in the absence of any female police officers, and locked up in the Tharthari police station. During the time of the incident, I was busy with distribution of ration amongst the labourers. The news left me absolutely aghast. From there I did not come home. I realized that since the police had arrested her, there must be a big conspiracy behind this incident. After this I went to Hilsa. I filed an FIr [First Information report]. but they fully understood that my wife and I were not very influential people and we couldn’t have done anything. After thinking of an alternate solution I filed a case in the office of the Chief Judicial Magistrate through my mother. The hearing was finished on the 13th and the order to release my wife was sent to the Police Station on the 14th. They did not release her till the 17th at any cost and kept her in the Chandi Police Station lockup. On 16th or 17th this news was published in Hindustan Times and Dainik Jagaran newspaper, as a result of which the Deputy Superintendent of Police [DSP] came along with other people who were involved in the 1997 issue.

The issue was when the District Council member came with the kidnappers who were two in number. The DSP was complained of the two and they were arrested but nothing was done about it. When my wife was released on 17th or 18th, the police found out that one Shailendra Paswan of Kiryama was involved and arrested him. They questioned him about my whearabouts and beat him till he was forced to answer. Then they arrested my cousin. After that, they arrested my sister Savita Devi, wife of Shivji Paswan, resident of Kangali Bagaicha. They also arrested ravinder Paswan, Shivji’s brother. He too was locked up and beaten by the police for my whearabouts.

My in-laws hail from Bohra which is a place near Bakhtarpur. My brother-in-law and his son were arrested from Bakhtarpur by the police and were locked up. They were harassed so much that I didn’t know what to do. My wife who was released on the 18th was rearrested on the 20th and locked up again. When I enquired with the SHO [Station House Officer], he said that the case had been extended and requires a witness. Sir we have struggled a lot, and I was ready to struggle more and be the witness. I went to give a statement but their lawyer was not present.


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I come to the IPT with a lot of confidence and hope for justice. They kept my sister and other family members for a total of 7-8 days and harassed them. They took 3,000 rupees to release my sister and the others and released the other people 4 days ago. When master sahib was released on 1 August I was in Jharkhand trying to escape the atrocity of the police. I knew that this issue had a political angle to it and involved the regional MLA.who is a powerful and influential man.

What led to these events is this: in 1992 we tried constructing a road which was opposed by these people. I had cordial relations with the authorities and ram Chander Babu who was the Block Development Officer gave us an estimate for building a modern school. The estimate amounted to 2,23,765 rupees and that is where the dispute started. There was no land for the school and the little land that was there had been forcefully occupied. Despite my financial status I registered my own land in the name of the Governor but my agreement was rejected by the MLA. When I complained in the office of Shailesh Kumar, the Collector, he wrote to the DTSC. for an enquiry when in the meanwhile the police arrested me on 20 June 1997 and detained me for a month.

After I was released from jail, I found out that almost the entire staff had to cope with one problem or the other. When I approached the High Court, the concerned block was sealed for 6 months and an enquiry was conducted by the A.D.M. Mr. Shanker Singh, which I did not accept. On our demand a very honest auditor, Prof. Bindeshwar Goswami was appointed who audited a total misappropriation of 6.6 lakh where 3. 25 lakh rupees had to be recovered from the MLA's workers and a FIr was filed against one Laxman Paswan of najur. After this I was falsely framed for a crime in which a couple of rifles were missing and a murder was committed. I did not get arrested for 6 months but after the appointment of the new SI I got arrested, the only motive being revenge. Since that day they have been harassing me for no valid reason and the proof of this is in the files with you. Whatever I have said today is wholly and completely true and the documents I have provided with in my file are proof of the same. Thank you for your time.

K. S. Subramanian

Friends, it has been a great experience for me over the last two days to listen to the testimonies about innumerable instances of torture, extra-judicial executions and enforced disappearances. I am grateful to my friend Colin, who asked me to come for this discussion.

I am aware that I am the only police officer in this group, and I therefore have a huge responsibility in trying to explain how the police behave in India – it is something very difficult to explain.

There is a saying that, “There is a democracy at the top and bureaucracy at the bottom”. This bureaucratic structure at the district level and below was created by the British and was left behind to be used by the Indian elite. This bureaucratic structure is composed mainly of the police, and this police structure is supported by the legal system, i.e., the Indian Penal Code, the Indian evidence Act and the Police Act. These are not people-friendly legislations and are meant to oppress and suppress the people.

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The basic job of the police is to collect intelligence against people and to maintain order, with or without law. The Indian Police are trying to do the job as best as they can, but the democratic upsurge from below cannot be suppressed that easily. The legal provisions are also basically repressive. For example, the Indian Penal Code has 511 sections, out of which the first 299 sections are related to offences against the State, and criminal offences are mentioned only from Chapter 16 onwards. Similarly, the 1973 Code of Criminal Procedure basically deals with offences against public order and the maintenance of peace and tranquillity.

The district administration has been trained mainly to maintain order at any cost, and that is what they have been doing ever since Independence. The Indian elite has never bothered to reform the structure because it is in their favour. What I feel is that we need a complete change from bottom-up and not from top-down. So far, most of the police reform exercises have been from top-down and not from bottom-up. What we need to do is to reform the slow pace of police bureaucracy, which is oppressive and violent towards the public.

You can see how the subordinate police behave, and the senior police are keeping quiet as they are not interested in reforming the structure. What we need is a fundamental change. The upsurge has to come from below, and I see the upsurge emerging from discussions like this.

If Colin feels that in some way I can be useful in dealing with cases which have come up in the course of these discussions – for example, we may like to form discussions groups of activists, law persons and people with experience in administrative work, we can deal with some of the specific instances in which human rights on the ground have been violated – and if my services can be of any use, I’d be very grateful.


Members of the jury and friends, we have been listening and discussing the issues for two days now. I can understand that all of us are tired. A number of points were raised here, and I quite agree with the words of Mr. Sebastian, an advocate from Maharashtra, when he says that violence can be done by the government and against the government. I fully agree with him when he says that I have every right to pick up a gun against the government in self-defence.

Therefore, you cannot compare a person who raises his voice or a gun against the government in the same way as the policemen who uses a gun against a citizen of the country. We will have to make a distinction, because one of them is under the control of the government and has to uphold the dignity of the law. The other person – whatever he is doing – he is doing it in self-defence, and he is sometimes compelled to take law in his own hands.

Let us move to the reasons why such a situation arises in a particular place and a particular country. The reason will be different, of course, from place to place. We cannot compare Kashmir with Tamil nadu or with Andhra Pradesh or with Manipur or with the northeast. But we still have to ask the rulers, or those who are governing us, why this violence is increasing in this country and in this state? What are the reasons?

I would like to ask a question to all my friends here: Why did the violence erupt in Kashmir? What were the reasons? I remember that in the past, we would never have kept even a knife


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for our defence at home. We could not have imagined that our boys would pick up guns – for what reason? The same can be said of Manipur and other states.

Today I hear how police atrocities are being committed in various parts of the country, and maybe tomorrow all these states will become disturbed areas. I would not be surprised if, at some future point, the whole of the country won’t be under the purview of the Armed Forces Special Powers Act. Why? What is the reason? We need to look for the reason. We will have to discover the symptoms and then the cause of the disease, and only then will we be able to come up with complete answers.

I agree that this country is governed by the police, who are a law unto themselves. But we have to ask why the police become so voracious when they are part of society: What are the reasons? You need to remember that policemen are at the mercy of politicians.

I remember I conducted a survey back in 1986, when there was an absolutely normal situation in the state of Jammu & Kashmir, and I was told by some police officers that they were posted to a particular police station for two to three days because they could not oblige the local politicians of the area. The same happens everywhere, so unless and until we de-link the police from the politicians, things will become worse. There will be more atrocities and more criminals in the police force. That is one important thing we will have to think over.

The second thing which I would like to mention is that, as Colin said, we must congratulate the Human rights Law network and all the other groups that are here for having understood each others’ agony and pain and for having shared each others’ pain. But sharing is not sufficient. What we need is some follow-up action in which we ensure that all of us are connected with each other in some way. We shall have to see how we can, if not totally eliminate this pain, at least control it, and how we can come to the rescue of those victims who have suffered either in Kashmir or in Tamil nadu or in uttarakhand or in Gujarat or in Bombay.

For that to happen, everyone associated with the various big or small organisations must coordinate amongst themselves, and everybody must take some steps to control the situation. My personal feeling is that the Human rights Law network will have to take the lead on this, and it could be a centre of this whole programme.

In certain places, people have there own networks. They must strengthen those and fight for people’s betterment. If we do that we will save this country, and if we don’t do that, God forbid, this country will be finished. And of course, we have to tell our politicians: “For God’s sake, please do not destroy this country anymore. You have already caused a lot of pain and agony to the country, so please now stop it and try and feel the pulse and the pain of the people".

As we say in urdu: “Navishta deewar padhiye, deewar par kya likha hai woh padhiye”; we shall have to tell these politicians to read the writing on the wall. If they will not read it, the future of this country will be very dark, and nobody will be able to save it. And I can see that if this advice is not taken, then everywhere – in Jharkhand, in uttar Pradesh, in Bombay – you will see young boys and girls moving around with guns in their hands, guarding their property and saving their honour and dignity, because when a girl has been molested by a person who

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is the protector of the law, and when a mother’s son has been taken by those who are the protectors of the law, they feel there is no other alternative. They will definitely take the law into their own hands, and it will be total anarchy.

If we are to save this country, civil society has to come forward – the intellectuals, the lawyers, the doctors – everybody has to come together to rescue this country.

Thank you.

Senior Advocate Dhairyasheel Patil

What is the future regarding the main problem? We are a jury or a panel. We shall identify cases, make a report on them, and notify the national Human rights Commission, State Human rights Commission, and different governments. unlike the Supreme Court, we shall not ask the same police station to look into the matter. By asking the same police station, there is no progress. The individuals may change, but the system remains the same.

What I feel for the time being, however, [is that] this is no final solution to the problem. Many have told us that the police refuse to lodge a First Investigation report [FIr] for two to three years. Dr. S. D. Singh gave us a very good suggestion that we should collect medical evidence. Through extraordinary methods, medical science can actually determine if a person has suffered internal injuries even after three days. The first doctor may have ignored it because of the police pressure; so this too can be used as supportive evidence.

If the police refuse to lodge an FIr, no one is stopping us from filing private complaints. We can easily file bulk private complaints in numbers of one hundred, two hundred, all over the country. Please do not fall into the same rut. The magistrate under Section 202, he sends the police to conduct an enquiry. He can also use 156[3] of the Criminal Procedure Code [CrPC] in a similar fashion. What is the point of sending the same police station to conduct an enquiry? So please tell your lawyers that you do not wish to get a police enquiry done, because it really does not bear any results.

As the chairman of the Bar Council, I came across a case where a poor farmer was compensated with 300,000 rupees. The entire compensation was pocketed by the lawyer himself. When the farmer complained about the lawyer, we revoked his registration. During the appeal the farmer came without a lawyer. He told me that, “I have taken the help of a lawyer once in my life, and I won’t repeat the same mistake again". This is the prevailing attitude of the people.

Please use private complaints, and make it clear that you do not want Section 202 and 156[3] of CrPC to be used. Ask the Magistrate to conduct the enquiry himself. And if the Magistrate refuses to do so, then please make an appeal. If for some reason the appeal does not work, go ahead with a writ petition in the High Court. For this purpose we require a network; the Human rights Law network will not suffice. We may require local networks, where we could go to the appellate court and knock on the doors of the judiciary. This is the structure, and we should make use of it.

The other issue which many have mentioned is the communal forces. Mrs. Shabnam Hashmi raised another point: that most of the communalist parties are coming together and viewing


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things with a very pessimistic attitude. She suggested that we should create an alliance of sorts. But whom do we align with? The so-called secular parties, which include the Congress and its various forms, are not worth aligning with. For the Congress, the Muslims are just a big vote bank. The Congress does not treat the Muslims as a community or as human beings; they are seen as vote banks. Initially, the Muslims had no choice but to vote for the Congress. now, the Congress is overconfident about their Muslim voters, as their only other choice is the Bharatiya Janata Party [BJP].

We cannot de-politicise our struggles, whereas the system is trying to make you apolitical. We cannot separate ourselves from politics. Politics is here to stay, and there should be politics; but politics should be in favour of the people. People’s politics greatly differs from the politician’s politics. We want to be political; it is the system that is trying to make us apolitical. There are many methods through which this is being done. Karl Marx once said that religion is the opium of the masses, but there are many other kinds opium, such as cricket, the soap operas and movies. All this [contains] such a wrong projection of women. There are so many opiums of the masses by which you could be de-politicised. Our politician from Maharashtra [Sharad Pawar] and also the president of the Board of Cricket Control in India has auctioned different teams, and he will auction off each individual player [for the Indian Premier League, T20 cricket tournament]. even human beings have become commodities. All this is for what? This is opium for the masses.

The established class has become so confident of its success that a person like ratan Tata has the guts to say that whosoever is against the nuclear deal is a Pakistani or Chinese sympathiser. We opposed it on certain principles, but he has the guts to say this because he has already pocketed one of the Chief Ministers from the Marxist Parties [Bhudadev Bhattacharaya of West Bengal]. Therefore, I tell people not to have faith in the established Communist parties of India, because they have been ensconced in parliamentary politics and they do not want to leave their centers of power at all. So, it is very important for us to understand the problem before us. Our struggle is very political in nature, and we cannot fight this if we remain apolitical. Our kind of politics is people’s politics – everyone’s politics.

My friend, P. A. Sebastian, was absolutely right when he said that there is a difference between the violence that is used as offensive and violence that is used in self-defense. He pointed out that in the mid-nineteenth century, it was Lord Macaulay who had drafted the Indian Penal Code. And he in Section 100 of the IPC has mentioned that if somebody is trying to kill you, you would be justified in killing that person. Or [you would be justified] if someone is trying to molest a woman or rape a woman, and please remember the women need not belong to your family – it could be any woman in the world. See the humanistic approach, which was added by chance. Further, if the police are trying to set fire to a hut, which could be someone else’s, like a neighbour, you are justified in defending that hut. So please remember to make extensive use of Section 100 of the IPC.

Again, my friend Sebastian was right when he differentiated between defensive violence and offensive violence. Because every five years, we are getting a new government – sometimes one year or a few months. But remember that for the past sixty years, from the time of our

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independence, not a single change has occurred in the class structure of the government. It is only the party labels that have changed. It may have been BJP; it may have been the Congress or the “khitchdri” [all mixed up] government that came in between. But it was the same class that continues to govern us for the last sixty years.

Therefore, it is wrong to say that using non-violent means can bring about change. This kind of Gandhigiri [Gandhism] only works in movies. In life, it does not work. If you read human history, there has been no change from one class to another class without violence. When they are challenged, then their so-called faith in fair play gets exposed. They have always used violence to maintain power. What name you call this is immaterial to me. It could be “people-ism” or “mass-ism”. If we have to succeed in our fight, we have to come together, we have to exchange views, and we have to help out each other. Please remember that this struggle is a political kind, not an apolitical fight.

Ramdev Vishwabandhu Freelance journalist; activist on Dalit issues, Jharkhand

Colin, panel members and participants.

I am from Jharkhand. The State of Jharkhand came into existence on 15 november 2000. This was a result of a long, hard-fought struggle. These struggles arose out of movements relating to issues arising out of forest, land and natural resources. In fact, the struggle for freedom before and after

Independence was based on the very same issues relating to natural resources, displacement and migration. Thereafter, slowly the tempo of the struggle changed. In fact, the human-rights violations in Jharkhand are of a different form and hence unique.

On 10 December 1948, the General Assembly of the united nations adopted and proclaimed the universal Declaration on Human rights. This Decleration inter alia established certain standards defining human rights of an individual. As per the Declaration, no individual should be discriminated [against] due to his caste, creed, race or colour. However, this definition of human rights in Jharkhand goes one step ahead, in the sense that in Jharkhand we talk about community rights. The struggles and fight for independence in Jharkhand all arise in relation to community rights.

In our fight, we have been assaulted and tortured, and many have lost their lives. For example, the Kol Karo Andolan [movement relating to a power project] has been going on for 40 years against displacement, etc. For the last 20 years, a struggle is being fought against a field firing range in netarhat. The army troops and soldiers who fought in the Indo–China war identified certain scheduled areas for training. These areas continue to be occupied to date. These soldiers have raped women from these scheduled areas. The same soldiers also beat up the members of the Kol Karo Andolan. On 2 February 2001, seven Adivasis [tribals] and one Muslim were killed in a firing carried out by the troops. This is the story of our long struggle.

We should also observe human-rights violations in Jharkhand from a different perspective: Caste, sub-caste and religion are very deep rooted in India, and these are primarily responsible for the worst forms of human-rights violations. In fact, the moment we talk about castes, sub-


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castes and religion, that itself constitutes an open declaration of the worst kinds of human-rights violations. There is no worse form of violation anywhere else.

In Jharkhand, we have a strong caste system. The violations are taking place in four segments: Dalits, Adivasis, minorities and women. Another aspect within caste is class. Hence, when a member of either a caste or an Adivasi is socially elevated owing to his position or employment and occupies a position from where he can exert his powers, he himself starts violating the rights of his own community members. He forgets about his roots and starts to torture his own people. We have SP’s [Superintendents of Police] in Jharkhand who are Adivasis who torture people belonging to their own communities. Hence, within caste the problem of class also arises. There are many incidents like this.

In the name of naxalism, our rights are being violated every day. I would like to share with you a small incident: This happened one month ago and concerns a landless, poor man who is not a Dalit. He belonged to a very rural area of Jharkhand. When he was sleeping at 11 p.m., a person wearing a MCC [Maoist Communist Center] uniform entered his house. The villager thought he was a policeman because the uniforms are deceptively similar to that of a policeman’s. He therefore immediately saluted him, greeted him and said, “Good evening, sir. Come sit.” The MCC said, “You think I look like a police officer?” He slapped him twice and ordered him to say, “Lal salam [red salute]” and said that he should only say “Lal salam” and nothing else.

The police is usually on the prowl searching for naxalites. So at around 2 a.m., the police came to the same man’s house. Because this policeman’s uniform was very similar to that of the person from MMC, he automatically said, “Comrade, lal salam”. The policeman immediately started beating him with a stick, stating that he had links with the MMC as he had entertained one of its members. As a result of this beating, he was hospitalized. The story was in the newspaper the next day, and people came to know why he was beaten up. now tell me: What is a poor man supposed to do? You have to greet some people by saying “Lal Salam” and greet the police differently when the uniform is the same. Hence, many human-rights violations are taking place every day, and people are being killed.

Jharkhand from the beginning has been a non-Brahmin region. even then, there have been caste violations and Dalit and Adivasi atrocities. So, hence, if we are working in these areas, we need to work on human rights and community rights. Community rights in the form of fighting against displacement are going on in Jharkhand.

We also have a very serious problem of people from neighboring states, like uttar Pradesh, coming into Jharkhand and forging fake marriage alliances with women from OBC [Other Backward Classes] and then trafficking them under the guise of marriage into their state. This is a very big problem. The situation is very serious is Jharkhand. We need to address these problems immediately.

Date post:	16-Jan-2020
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