State of Human Rights in India and the Role of National Human Rights-The story so far…. By: Shawahiq Siddiqui for APCR

National Human Rights Commission and State of Human Rights in India-The Story So Far

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I-THEORITICAL PREMISE ON HUMAN RIGHTS IN INDIA UNDER THE CONSTITUTION AND PRONUNCEMENTS OF THE SUPREME COURT

  • Legal and Institutional Framework for Human Rights Protection in India:-A theoretical perspective

 

Theoretically, the human rights framework in India is both illustrative and impressive.  The Constitution of India which is the Supreme law of the land provides for every person’s free and dignified existence in the form of Fundamental Rights and Liberties. The legal system in India, without any difficulty accepts that free and dignified existence of individuals is to be encouraged and enforced. But difficulties and contradictions are faced as Constitutional provisions and other laws are hardly implemented in their real spirit or put to practice.  There are various constitutional provisions that put together are considered as human rights framework in India. In addition to this, a dedicated law and institutional framework to protect human rights namely the Protection of Human Rights Act, 1993 which sought to establish the nodal agencies at the national and state level, the National Human Rights Commission (NHRC) and the State Human Rights Commissions (SHRCs) in every state in force. Since 1993, the NHRC and State level commissions are primarily responsible for improving the state of human rights in the country. However, the statistics and state of affairs shows the contrary. Before we examine the law on human rights itself and its implementation status it would be crucial to look at some of the provisions of the Constitution that provide the very edifice on which the human rights law rests, but the government and institutions have found it difficult to enforce.

 

  • The Constitution of India and Human Rights Protection- Constitutional Guarantee but a distant dream for many

 

In India the inspiration for Fundamental Rights which is the Basic Structure of the Constitution[1] is inspired in a major way from Article-1 of the Universal Declaration of Human Rights, 1948 which declares that “All humans are born free and equal in dignity and rights”. It is this Article that has caught the attention of the Constitutional framers in India and paved the way for several provisions in the Constitution that ensure life and dignity to an individual which is the basic human right of an individual. Thus one can say that theoretically there is certain Constitutional guarantee to human rights in India. Thus the first fundamental right guaranteed is the right to equality. Article 14-18 of the Indian Constitution provide for equality in various forms. Article 14 provides for equality before law, Article 15 prohibits discrimination on grounds of religion, caste, race, sex or place of birth. Article 16 guarantees equality in public employment.

 

In addition to this there are fundamental freedoms guaranteed under Article 19. Freedom of speech and expression, peaceful assembly without any arms, form associations or unions, move freely reside or settle in any part of the territory of India and practice trade or profession of one’s choice. These fundamental freedoms also provide a freedom to live life with dignity in various forms.

 

Article 21 is the supreme attempt by the constitution framers to protect life and liberty of every individual. The Article 21 has been expanded to be a mini constitution covering several aspects of human rights by judicial interpretation. Right of access to drinking water[2], right to minimum wages, right of shelter are all been evolved as judicial interpretation of Article 21 by the Supreme Court of India. Despite these provisions being provided in the Constitution, human rights protection in India and life with dignity and equality remains a distant dream for many.

Constitutional position on Right against degrading treatmentAlthough the Constitution by its several provisions guarantees right to dignified life nothing much has been achieved on the implementation part. There is no legislation that has been framed to protect citizens or individuals against degrading treatment by the Police and Military and oppression of the low caste by the high caste in socially disadvantaged sections of society. The Ministry of Home Affairs, Government of India has framed a model code of conduct for the police in this regard. The Supreme Court has also issues instructions against degrading treatment while arrest by the Police. As per these guidelines for arresting a person the police has to prepare an arrest memo, inform the person arrested, the reason for arrest, inform at least one of his relatives and so forth. However during the trial stage there is hardly any verification whether the Police officer did follow the Guidelines or not.

 

 

 

II-THE SUPREME COURT AS THE REPOSITORY OF CONSTITUTIONAL LIBERTIES AND HUMAN RIGHTS-No enforcement of its Orders and Judgements

 

  1. Supreme Court’s Orders on Handcuffing- has this important human right protected by judicial orders been enforced: In Prem Shankar Shukla Vs. Delhi Administration Case the Supreme Court struck down the provisions of the Punjab Police rules which discriminated-ted between the rich and the poor prisoner in deter-mining who was to be handcuffed. The Court also held that in the absence of the escorting authority re-cording why the prisoner is being put under handcuffs, the procedure of handcuffing is a violation of Article 21

The court concluded with the observation: “We clearly declare and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jail warder-that the rule regarding a prisoner in transit between prison house and court house is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner as a rule, whether he has been subjected to handcuffs or other ‘irons’ treatment, and if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment.”

  1. Sunil Batra ‘ll’ vs. Delhi Administration- An effective step for protection of rights of prisoners but in vain as National and State Human Rights protection agencies fail to enforce the order in this Case

The Supreme Court has given a new dimension to the writ of habeas corpus by its judgment in Sunil Batra ‘ll’ vs. Delhi Administration. While the decision of the Constitution Bench of the Supreme Court in Sunil Batra I vs. Delhi Admn  had crystallized the legally enforceable rights of a prisoner, the later decision in Sunil Batra II has radicalized the procedure for the enforcement of the rights of the prisoners.

However in very rare of the rarest cases this has been found to be observed. Handcuffing and degrading treatment of individuals accused of certain crimes continue to take place in varied forms which is often considered as a routine duty and a sine qua non by the Police. The state and Central Governments have not been able to enforce this important judgment of the Supreme Court. The special institutions created for this purpose under the Human Rights Act (discussed later in detail) have also failed to realize the enforcement of this human right against degraded human treatment.

  1. “Francies Corale Mullin vs. the Administrator, Union Territory of Delhi & others

In another recent landmark judgement in the case of “Francies Corale Mullin vs. the Administrator, Union Territory of Delhi & others”, the Supreme Court explained the ingredients of personal liberty under Article 21. The case arose out of the rights of a detainee under (the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act), 1974 COFEPOSA to have an interview with his family members and lawyers. The meeting with family members was restricted to one a month and the lawyer could be met only in the presence of an officer of the customs department. The Supreme Court ruled that the right to life and liberty included his right to live with human dignity and therefore a detainee would be entitled to have interviews with family members, friends and lawyers without these severe restrictions.

  1. 4. In 1989, the Apex Court held in Rajasthan Kisan Sangthan v. State that a person who was mistreated by the police in custody was entitled to monetary compensation regardless of the legality or illegality of detention.
  2. 5. In Saheli, A Women’s Resource Centre v. Commr. Of Police, Delhi a case in which a nine year old child died as a result of a police assault, the Supreme Court rejected the argument of state immunity from liability for wrongs of its servants and awarded 75,000 Rs compensation. It also directed the state to recover the money from the responsible police officials. The ability of the State to have recourse to its officials was called into question in State of Maharashtra v. Ravikant S Patil where the Court held that the concerned police officer who had paraded a handcuffed prisoner on the streets was not personally liable. The Court awarded Rs. 10,000 but left it open whether the State could take any legal action against the official following an inquiry into his action.
  3. 6. Nilabati Behera v State of Orissa, a case of custodial death resulting from torture, is considered to be the leading case in which the Supreme Court laid down 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, the need to make the guaranteed remedies effective and to provide complete justice.

 

Right against exploitation under Article 23 and 24 provide Indian citizens a safeguard against any form of exploitation. Article 24 prohibits the employment of any child below 14 years of age in any factory, mine or hazardous job. However, we find that child labour in India continues to exponential scale. In 2007, the number of child labour in Bengal alone was reported to be 7 lakhs. In Delhi the Chotus (small children) working in Dhabas and other factories is estimated to be over 10 lakhs. Clearly, the law and institutions on human rights in the country have failed miserably in this direction too.

 

 

 

 

 

III-WORKING OF THE HUMAN RIGHTS LAW AND NATIONAL HUMAN RIGHTS COMMISSION

 

  • The Procedural Mechanism:

 

The NHRC may inquire, suo moto or on petition presented by a victim or any person on his behalf, into complaints of i) violation of human rights or abetment thereof; or ii) negligence in the prevention of such violation, by a public servant. It can only investigate allegations of human rights violations that have occurred within a year of filing the complaint.The NHRC has wide-ranging powers in carrying out its inquiry into the complaints of human rights violations. It can call for a report from the police, monitor the police investigations in other ways or conduct an inquiry itself. It may, where the inquiry discloses the commission of violation of human rights or negligence in the prevention of a violation, recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the NHRC may deem fit (s). The Government or authority has to report within one month on the action it took on the NHRC’s recommendation. The NHRC publishes the results of its investigations and decisions taken together with the action taken by the concerned government or authority in this regard. The procedure differs however with respect to the armed forces. Here, the NHRC may only seek a report from the Government, and, after the receipt of the report, if the NHRC decides to take any action, it must make its recommendations to the Government. The Government has three months to respond after which the NHRC can publish its recommendations made to the Central Government and the action taken by the Government following such recommendations.

 

2.0 NHRC’s performance and achievements:

 

The National Human Rights Commission (NHRC), as the main body entrusted with promoting and protecting human rights, is entrusted to perform a range of functions and responsibilities for the effective implementation of the Act. The Act also provides for the establishment of State Human Rights Commissions (“SHRC”) and Human Rights Courts (“HRC”) at the district level in each state[3]. The Human Rights Act vests the NHRC with a broad mandate but it only has the power to issue recommendations and does not have any effective enforcement mechanism at its disposal. The scope of the NHRC’s work and the zeal of victims of human rights violations to seek the Commission’s attention is manifested by the fact that starting with 496 complaints in the first six months after it was established, the NHRC registered 50,634 complaints during 1999-2000.[4]

 

The NHRC has taken a pro-active role in advocating against torture[5] and urging the Government of India to ratify the Convention against Torture. In this regard, it noted in its Annual Report 1998-1999 that it is distressing to know that, even though the Permanent Representative of India to the United Nations signed the Convention on 14 October 1997, the formalities for ratification are yet to be completed. The Commission urged the earliest ratification of this key Convention and the fulfillment of the promise made at the time of signature, namely that India would “uphold the greatest values of Indian civilization and our policy to work with other members of the international community to promote and protect human rights.”[6] Therefore, the Commission undoubtedly has some achievements to its credit:

 

  • It has succeeded in persuading the Central Government to sign the United Nations Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Punishment or Treatment.
  • It has brought into sharp focus the problem of custodial deaths and taken steps to see that these are not suppressed by the state agencies and that the guilty persons are made to account for their sins of commission and omission.
  • It has also helped in designing specialized training modules on human rights for introduction in the educational and training institutions.
  • Moreover, the NHRC, relying on Section 12 (h) of the Human Rights Act, can and has issued a considerable number of instructions and guidelines concerning such issues as custodial deaths/rapes, “encounter deaths”, visits to police lock-ups/guidelines on polygraph tests and arrests as well as human rights in prison.

 

NHRC and Rights of downtrodden/subjugated/exploited and oppressedIt is particularly critical to find out whether poor people and groups who are socially vulnerable to abuse are being protected by the institution. The crucial measure of the effectiveness of the institution, it would seem, resides in its capacity to respond to the needs of those sections of society who are at risk of human rights violations. For this purpose it is important to see the working of the NHRC in this area and see how far it has responded to the needs of the excluded vulnerable millions.

The NHRC has made special efforts to deal with such issues. Whether they are Alleged atrocities on adivasis in Kerala by public servants or exploitation of tribals by land lords and mafia, rehabilitation of people displaced by mega projects, or issues relating to disabled, dalits, mental health patients or rehabilitation of widows of vrindavan. It also dealt with appalling practices like bonded labour and manual scavenging and has tried to deal with entrenched attitudes, which have wounded and fractured the Indian society. In view of large number of complaints, being received by the commission, relating to women and girl child the commission has set up a women’s human rights Cell within the commissions Law division

 

 

IV-EXAMINING THE EFFICACY OF PROTECTION OF HUMAN RIGHTS ACT, 1993 AND STRENGHT OF NATIONAL HUMAN RIGHTS COMMISION

 

As discussed above that in addition to the general framework that exists for the protection of human rights, India has a dedicated law by the name the Protection of Human Rights Act, 1993. The Act envisages number of objectives and functions for the protection of human rights. Importantly it provides for the establishment of institutional mechanism for the protection of human rights. Accordingly the National Human Rights Commission (The Commission) was established. Similarly Human Rights Commissions were also established in every state. The NHRC however is vested with large number of powers and functions, including the judicial powers. The NHRC has completed 17 years of its existence.

 

1.0 Mixed feelings about the efficacy of the National Human Rights Commission:

 

While the Act seeks to create institutional capacity both at the national and state level, it is the national institution from which the expectations are high given the nature of power and functions provided to the NHRC under the Act. Further due to variance in socio-political milieu in different states, a national body protecting universal rights is assumed to be more suitable. However, the manner in which the Commission functioned in the last 17 years is seen with mixed understanding. While there are views about the Commissions existence, it’s working and functioning   and it is time to undertake a review of its status, functioning and problems[7].

There is, however, a feeling that the Commission has not been able to achieve its full potential.  While there are different groups of experts who opine the reasons for the in-efficacy of the Commission on various accounts, there is however, a group of experts that view that there are structural deficiencies in the Protection of Human Rights itself and accordingly there is a lack of performance of institutions created under it resulting in the pathetic state of human rights in India. These views are summarized below.

 

2.0 Structural Deficiencies in the Human Rights Act, 1993

 

The Protection of Human Rights Act, 1993 is the dedicated law for the Human Rights Protection in India. It is viewed that the Act itself suffers from various shortcomings that impede its implementation. Some of the crucial elements of the Act are discussed below.

 

2.1 Social and Economic Rights not as the focus:

 

Under the Protection of Human Rights of Act, 1993 civil and political rights are given primary importance over social and economic rights.  The Act defines “human rights” as “rights relating to life, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India” Thus the law requires the NHRC to concentrate more on civil and political than on social and economic rights[8]. The Act fails to understand a basic socio-economic reality of the country that civil and political unrest is result of social and economic equality and conflict that the government has not been able to address since independence. The weaker sections, minorities, dalits and socially disadvantaged sections have been facing severe human rights violations in varied forms. This is somewhat unfortunate as a human rights commission can really play an effective role in pressurizing the government to provide social and economic justice to citizens which is currently not the case[9]. A similar type of provision in law governing the human rights commissions in this country can act as a pressure point on the governments to explain as to what they have done during the last 63 years to provide, for example, the safe drinking water to the public.

 

 

 

Where is the required coordination between NHRC and SHRCs?Unfortunately there is no cooperation and coordination between the National Commission and state commissions. ‘Neither of the commissions utilizes each other’s potential or expertise, thus losing the opportunity for a mutually beneficial relationship. There is potential for cooperation in the areas of training in the investigative expertise of higher order and norms setting, which has not been put to use till date. To avoid the conflicts and increase the efficiency, complaints of that specific state should be mandated to be dealt at the state level and the state commission’s orders and directions should be open to challenge before the commission by way of revision. In this way state commission shall be subject to the judicial control of the National commission, which does not happen at the current stage.

SHRCs cannot be established on the pro-rata basis because of inherent difficulties .For example financial constraints, because of non- availability of retired chief justice or justices of the high court whose presence is essential for the composition under the Act. In respect of the states in the Northeastern region, there is a single high court in Guwahati. A formula may need to be specially devised for these states in respect of SHRCs for which there has been a very little thought.

 

 

2.2 Composition of National Human Rights Commission: – Is there a need for review?

 

The National Human Rights Commission comprises of five members, three of whom should be from the judiciary and two “from amongst persons having knowledge of, or practical experience in, matters relating to human rights[10]”. Selection of chairperson and members of the Commission is made on the recommendations of a committee consisting of the Prime Minister, Home Minister, Speaker and leader of the opposition in the House of the People and Deputy Chairman and leader of opposition in the Council of States. There are serious reservations to this composition and these are as follows:

 

  1. No representation from a minority community: Given the vastness of issues and situations in a country where certain minority groups have been targeted in unfortunate well known incidents in the country, more so in the year and during the time when NHRC was being formed, the Act does not provide any representation by the minority community.

 

  1. Selection of narrow band of persons:

 

The Act of 1993 provides the selection of its members from the specified fields, most of them belonging to the judiciary. While the expertise in law is one of the essential requisites and competence that is needed within the Commission, the relevance of experts from other arena is equally important and cannot be overlooked as one of the prerequisites for the Commission to function smoothly. The commitment towards human rights is hardly any consideration for the selection of NHRC members by selection of committee which consists of a group of people in the ruling politics. Such a narrow band of persons restricts the Commission from getting the plurality of perspectives, vocations and diverse experiences from the civil society.

 

  1. Manner of selection of its members-Whether transparent?

 

The committee recommending selection of consists solely of politicians. Thirdly, the process of selection is not transparent. Composition of the Commission is generally decided through noting in secret files or during closed door meetings between the politicians and their favorite bureaucrats.

 

 

  1. A dependent Commission:

 

The Protection of Human Rights Act, 1993, the Central Government shall “make available” to the Commission officers and other staff required for research, investigation, technical and administrative work[11]. This provision of law, by making the Commission dependent on the Government for its manpower requirements, has also led to narrowing its field of choice to what is made available by the Government.

 

  1. Ill-equipped personnel and permanently vacant positions:

 

The problem is compounded because the terms attached to the Commission’s posts are not good enough to attract quality material. The post of Director (Research) in the Commission has been vacant since its inception. The majority of posts in the Research Division are manned by the clerical staff from the Ministries of the Central Government, who have no research background. The two posts of Superintendent of Police in the Investigation Division are manned by BSF officers who, neither by training nor by experience, can really be regarded as qualified investigating officers. The post of Director General (Investigation) has so far always gone to a retired IPS officer Most of the officers and other staff working in the Commission have come from different offices of the Government of India. After years of working in the government departments, they join the Commission with a certain mind-set, deep resistance to change, bureaucratic procedures of work and a very heavy accumulated backlog of bad practices. They have no knowledge of or commitment to human rights. What makes the situation worse is that they are not given any training when they join the Commission. It is not at all surprising that the Commission is gradually acquiring the image of a bureaucratic organization[12].

 

Increasing awareness or Increasing violations!!As per Commission’s own account there has been a definite increase in the number of complaints received by the Commission. From 6,987 in 1994-95, the number increased to 10,195 in 1995-96 and to 20,514 complaints in 1996-97. The Commission feels happy on this account, as it signifies, according to the Commission, an increase in awareness of human rights and a “reflection of the increasing confidence of people in the Commission.” Is this interpretation realistic or is the optimism misplaced?

 

 

  1. A different picture:

 

A study shows that the majority of complaints are being received from three or four states. Out of 20, 5114 complaints in 2008-2009, 65.7% were received from four states only i.e. UP (88,668), Bihar (22,413) Delhi (11,340) and Tamilnadu (11,064). Similarly, in 1995-96, these three States and the Union Territory of Delhi accounted for 15,780 out of 1, 0195 complaints (56.7%). This clearly shows that Human Rights’ awareness (If at all it can be said), is being limited to a few states.

 

  1. Failure to educate on Human Rights and procedural complexities make it an inappropriate forum:

 

In 2008-09, out of a total of 16,823 cases, 8048(47.8%) were dismissed in limini. In the preceding year also i.e., 5,984 out of 11,153 cases (53.6%) were dismissed similarly. These are the cases which do not fall within the purview of the Commission’s charter or are time barred or are sub-judice. There is thus considerable ignorance amongst the public about the Commission’s charter and its procedures which are complex.

 

2.3 Financial Independence of the Commission remains a question

 

The Commission is supposed to be completely independent in its functioning, even though the Act does not say so. In fact, there are provisions in the Act which underscore the dependence of the Commission on the Government. As already stated, Section 11 of the Act makes it dependent on the government for its manpower requirements. Then there is that all important question of finance. According to Section 32 of the Act, the Central Government shall pay to the Commission by way of grants such sums of money as it may consider fit. While the Commission asked for a sum of Rs.8 crores for 1998-99, the Government has granted a sum of Rs.5 crores only. Thus in respect of the two most important requirements i.e. manpower and money, the Commission is not independent.

 

2.4 A handicapped and helpless NHRC in case of Human Rights violations by Armed Forces

 

The Human Rights Act does not authorize the Commission to enquire into complaints of violations of human rights committed by the members of the armed forces. “Armed Forces”, as defined in Section 2(1) (a) of the Act, means not only the naval, military and air forces but also the central para-military forces. Since a very large number of complaints of human rights violations are directed against the members of the “armed forces”, the Act obviously weakens the NHRC’s effectiveness in providing redress to the public in such cases. All that the Commission, under Section 19 of the Act can do is to call for reports from the Central Government in such cases and then make recommendations to the Government or not “proceed with the complaint” at all. Under the Act, the Commission has no power to enforce its decisions. The Section 18 of the Commission provides for it to make complaint to the appropriate government to take action. However, Commission by itself is not empowered to initiate proceedings on its findings. The provision of the Protection of Human Rights (Amendment) Act, 2006 reads thus:

 

“11. Substitution of new section for section 18.- For section 18 of the principal Act, the

following section shall be substituted, namely:-

“18. Steps during and after inquiry.- The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely:-

(a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority-

(i) to make payment of compensation or damages to the complainant or to the victim or

the members of his family as the Commission may consider necessary;

(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons;

(iii) to take such further action as it may think fit;

(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;

(c) recommend to the concerned Government or authority at any stage of the inquiry for

the grant of such immediate interim relief to the victim or the members of his family as the

Commission may consider necessary;

(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the

petitioner or his representative;

(e) the Commission shall send a copy of its inquiry report together with its

recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;”

 

Provision of approaching the High Court or the Supreme Court (18 (2)) of the HRA for the implementation of its directions or OrdersThus the Commission itself cannot implement its recommendations or take action against the violators of the human rights by itself as per section 18 of the Act. However, as per the Protection of Human Rights Act, which inter-alia empowers the Commission (vide Sec.18 (2) to approach the Supreme Court or High Court concerned for such directions, orders or writs as that Court may deemed necessary, for the implementation of its Orders.  Therefore, the NHRC Act does provide remedy to NHRC to approach High Court or the Supreme Court for appropriate writ, orders or directions.  Howsoever, NHRC or State Human Right Commission have not fully utilized this power which is vested in them under Sec.18 (2) of the Protection of Human Rights Act, of 1993.  Thus for instance, in the matter of Gujarat Riots, NHRC had filed the Petitions in the Supreme Court for directing the appropriate government to initiate proceedings, but could issue directions on its own.  There are hardly any instances where NHRC or State Human Right Commission have approached the appropriate Court to implement their own orders or directions or findings against the Government or human rights .

 

 

Does the Protection of Human Rights Act Meet the Principles laid down in Paris Convention, 1991?At a UN sponsored meeting in Paris in 1991, a detailed set of principles on the status of national human rights institutions was developed, which are known as the Paris Principles. These principles provide that a national institution must have a broad mandate; pluralism, including representative composition; wide accessibility; effectiveness; independence; sufficient resources; and adequate powers of investigation. The analysis above shows that the law for the protection of human rights in India and the institutional mechanisms does not meet the Principles laid down in the Paris Convention.

 

 

 


V-THE CURRENT STATE OF HUMAN RIGHTS IN INDIA

 

Having looked at the structural deficiencies under the Human Rights Act and the weaknesses of the National Human Rights Commission, it would be important to have a status of human rights in India which is not surprising given the competence and powers of an institution and its in-house expertise discussed earlier. We analyse few selected issues and their state of affairs[13].

 

  1. THE PRACTICE OF TORTURE IN POLICE CUSTODY CONTINUES

 

Torture in police custody remains a widespread and systematic practice in India. There are no safeguards to ensure that a person taken into custody will have their detention recorded, have prompt access to a lawyer or impartial medical examination upon their arrival at the place of detention, or at the time of his release. The lack of any effective system of independent monitoring of all places of detention facilitates torture.

 

Since 2000, according to the statistics submitted to the parliament by the Ministry of Home Affairs, prison custody deaths have increased by 54.02% by 2008, while police custody deaths during the same period have increased by 19.88%. In fact, under the United Progressive Alliance (UPA) rule from 2004-2005 to 2007-2008, prison custody deaths have increased by 70.72% while police custody deaths during the same period have increased by 12.60%.

 

Deaths in judicial custody between 2000 and 2008[14]:

 

Year Number of Deaths % Increase
2000-2001 910  
2001-2002 1,140 25.25%
2002-2003 1,157 27.14%
2003-2004 1,300 42.86%
2004-2005 1,357 49.12%
2005-2006 1,591 74.84%
2006-2007 1,477 62.31%
2007-2008 1,789 96.59%
Overall 54.92%

 

The contradictions in official figures on custodial deaths are evident when data from the NHRC is compared with the records of National Crime Records Bureau (NCRB) of the Ministry of Home Affairs, government of India. On 7 July 2009, Minister of State in the Ministry of Home Affairs, Mr Ajay Maken stated in the Lok Sabha that the NCRB recorded only 2 cases of custodial death in India in 2009 (up to 28.6.2009), 7 cases in 2008, 118 cases in 2007 and 89 cases in 2006. He stated that the data on custodial deaths of children below 14 years of age is not maintained separately[15].

 

It is clear that the Supreme Court’s guidelines in the case of D.K.Basu Vs State of West Bengal have failed to reduce the custodial deaths in India. The writ petitions pending before the Supreme Court of India seeking enforcement of the D K Basu Guidelines made little headway.

 

Most of the State governments have not been implementing Section 176 of Criminal Procedure Code, amended in 2005, which provides “that in case of death or disappearance of a person or rape of woman while in the custody of the police, there shall be a mandatory judicial inquiry and in case of death, examination of the dead body shall be conducted within twenty-four hours of death”. In most cases, the State governments have been ordering magisterial (executive) inquiries, instead of judicial inquiries.

 

  1. INDIVIDUAL CASES OF TORTURE IN POLICE CUSTODY

 

  1. Case of Mohd Seraj died in police interrogation[16]: On 3 July 2009, Mohd Seraj died as a result of alleged torture at the Pathiha police station in East Champaran district of Bihar. The victim along with four others was taken to the police station for questioning by a police team in connection with a looting investigation. The police claimed that the victim complained of abdominal pain and died on the way to hospital. However, the post mortem report revealed that he died of “shock and hemorrhage” and there were injury marks on his body including on the head, strongly suggesting ill treatment.

 

  1. Case of Salim, a labourer died of torture, Bareilly: On the night of 2 August 2009, Salim alias Danna (a labourer and resident of Prehladpur village under Bhojipura police station) died as a result of alleged torture at the Bhojipura Police Station in Bareilly district of Uttar Pradesh. Salim and three others were returning home after work from a brick-kiln in a vehicle at about 11 pm when the police, led by Station House Officer of Bhojipura PoliceStation, Rahul Shukla, stopped the vehicle. The police arrested the four on charges of involvement in robbery. They were taken to Bhojipura police station where the four were allegedly subjected to torture. Saleem reportedly fell unconscious and was declared dead on arrival in hospital.

 

  1. Case of Mehraj-uddin Sheikh, death due to Police Torture, Srinagar: On 6 August 2009, Mehraj-u-Din Sheik (son of Mohammad Subhan of Sheikh Colony Kanidawar, Nowhatta in Srinagar in Jammu and Kashmir) died in police custody as a result of alleged torture. According to the police, a complaint was received that Mehraj-u-Din Sheik and his friend Qadir were drunk and causing trouble on the evening of 6 August 2009. The police went to the locality and allegedly found both of them drunk. According to the police they were taken to nearby Rainawari hospital for medical examination. Qadir responded to the

treatment, but the Mehraj-u-Din Sheik’s condition worsened. Subsequently he was transferred to Soura Medical Institute where he died. The family alleged Mehraj-u-Din Sheik died after being tortured in police custody.

 

  1. Case of Arun beaten up to death by Police in Frazer town Bangalore: On 14 January 2009, one Arun (26 years, resident of Pottery Town), died in police custody at the Fraser Town police station in Bangalore, Karnataka. The victim was arrested along with his neighour Vijay after they had allegedly been involved in a fight at about 5.30 pm on 14 January 2009 in Pottery Town. While being taken to the Frazer Town police station, the victim was allegedly beaten up by the police. The police claimed that Arun suddenly collapsed in the police station and was taken to the Santosh Hospital in Frazer at about 9.30 pm. But according to the Santosh Hospital sources, Arun was brought to the hospital only at around 30 pm and declared dead at the hospital. The relatives of Arun alleged that he was tortured in police custody[17]

 

 

  1. Case of Manzoor Ahmad Beig died of torture by Special Operations Group, Srinagar: On 18 May 2009, Manzoor Ahmad Beig (45 years), son of Abdul Majeed Beigh of Aloochibagh in Srinagar, died as a result of alleged torture during interrogation by the Special Operations Group (SOG) of the Kashmir Police in Srinagar, Jammu & Kashmir. The SOG personnel picked up Mr Beig along with three others for questioning in connection with a fraud investigation. Later he was found dead handed over to the family members.

 

  1. Case of Din Mohammad, death due to torture by Pushta Police, Ghaziabad

 

On 30 September 2009, Din Mohammad (45 years, son of Allah Banda of Loni) died as a result of alleged torture at Pushta Police Post in Ghaziabad district of Uttar Pradesh. Mr Mohammad was picked up for questioning following a complaint. The police claimed that Mr Mohammed died following a heart attack during interrogation. However, the victim’s father Allah Banda alleged that Din Mohammad was tortured to death as there were injury marks on his body.

 

  1. Case of a tribal beaten up to death in Jhabua Madhya Pradesh

 

On 14 January 2009, a tribal identified as Kalu Thanwaria Medha (40 years) was allegedly tortured by death by two police constables at Raipuria in Jhabua district of Madhya Pradesh. The villagers claimed that Kalu Thanwaria Medha was innocent. In protest, villagers attacked the local police station and demanded justice.

 

  1. Case of Altaf Kadir Sheik, died due to torture by Police Ghotkopar Mumbai

 

On 11 September 2009, Altaf Kadir Sheik (22 years) died as a result of alleged torture by the police at the Ghotkopar Police Station in Mumbai, Maharashtra. Mr Sheik was picked up from his residence by four police personnel in connection with burglary cases. Police claimed that they found Mr Sheik slumped on a bench at the station within hours of having been brought to the station. The police took him to the hospital where he was declared dead on arrival. The police attributed the death to a drug overdose. The family alleged that Altaf Kadir Sheik died as a result of torture.

 

  1. Case of Sakiul Sheikh, Malda West Bengal: On 24 December 2009, Sakiul Sheikh (24 years, son of Mr Mahisuddin Sheikh) died as a result of alleged torture while in police remand at Kaliachak police station in Malda district of West Bengal. Sakiul Sheikh was arrested after being allegedly caught with counterfeit currency on 13 December 2009. He was produced before the Chief Judicial Magistrate, Malda on 14 December 2009. The Court remanded him to police custody for seven days. On 19 December 2009, he was produced before the court and sent to judicial custody. On 20 December 2009, Mr Sheikh

was admitted to the Malda District Hospital and when his condition deteriorated he was transferred to North Bengal Medical College and Hospital (NBMCH), Siliguri on 23 December 2009. He died in hospital on 24 December 2009. The victim’s family alleged that the victim was tortured in police custody after his arrest. According to the jail superintendent, Chittaranjan Gharai, the victim was ill when brought into judicial custody on 19 December 2009.

 

  1. Case of Lalu Prasad Biswas: On the night of 5 January 2009, Lalu Prasad Biswas (44 years) allegedly died as a result of torture in police custody at New Market police station in Kolkata, West Bengal. Mr Biswas was arrested on the charge of allegedly running an illicit liquor shop. The police claimed that he was drunk at the time of arrest and therefore was sent to the Calcutta Medical College Hospital for a medical checkup. The police

could not properly explain as to how he died at the hospital. Mr Biswas’s relatives alleged that he died as a result of torture in police custody.

 

Other Similar cases of Torture and Police Brutality-Worst form of human rights violations across the Country-A reflection of NHRCs performance and state of human rights  

Case1: On 1 February 2009, one Krishnamurthy of Rowthanmedu in Thuvakudi died in police custody at Tiruverumbur under Tiruppur district in Tamil Nadu. Earlier in January 2009, he was released from jail after serving a prison term but on 31 January 2009, the police picked him up on an alleged involvement in theft. The police claimed that Krishnamurthy complained of chest pain after dinner and died in hospital. But the hospital authorities stated that he was ““brought dead”” to the Government Hospital at Tiruchi by the police. The family of the victim has alleged that his death was a result of torture in police custody.

 

Case 2: On 12 February 2009, Yesupogu Ram Murthy (40 years) died as a result of alleged torture at Bitragunta police station in Kavali under Nellore district of Andhra Pradesh. The police claimed that he collapsed during interrogation and was taken to Bitragunta hospital from where he was transferred to Kavali government hospital. The doctors at Kavali government hospital declared him “brought dead”. While the police claimed that the victim was arrested in the afternoon of 12 February 2009 the family alleged that he was picked up on the night of 11 February 2009 and tortured.

 

 

Case 3: On 14 February 2009, Dhananjaya, son of Thimme Gowda of Srirangapatna, was declared “brought dead” at hospital in Mandya district in Karnataka. He was allegedly tortured at K R Pet Rural police station in Mandya district. But the police claimed that the victim collapsed during interrogation and was taken to hospital where he was declared “brought dead”. The police allegedly transferred the corpse to another hospital in Mysore and kept the corpse in the hospital’s mortuary.

 

 

Case 4: On 21 February 2009, Adapa Naresh (25 years) of Venkatapuram gram panchayat (village council) died at the Rajahmundry Central Jail in East Godavari district of Andhra Pradesh. The family alleged that he was tortured at the Three-Town police station before he being sent to judicial custody.

 

 

Case 5: On 7 March 2009, Amol Raghunath Kuchekar (26 years, resident of Surbhi colony in Warje), died as a result of alleged torture in the police custody at Warje Malwadi police station in Pune in Maharashtra. Mr Kuchekar was arrested on the night of 6 March 2009.20 The medical records obtained by the Criminal Investigation Department revealed that the policemen had beaten Kuchekar with blunt objects like sticks and belts. The medical reports reportedly confirmed that Kuchekar’s death was as a result of torture.

 

Case 6: On 13 March 2009, Palani alias Kutti Palani (38 years, son of Ranganathan of Kotturpuram), died as a result of alleged torture at Kotturpuram police station in Chennai, Tamil Nadu. The victim was picked up in connection with a petty case at about 10 pm on 12 March 2009. The police allegedly tortured him and released him at about 11 pm on that day. Immediately after release he had to be rushed to hospital where the doctors declared him “brought dead”. Acording to the police the victim was a habitual drinker and died as a result of cardiac arrest. However, the residents of the area alleged that the victim died as a result of torture during interrogation in police custody.

 

Case 7: On 22 March 2009, K. Venkateswarlu (45 years, resident of Pathikonda village), died as a result of alleged torture in police custody at Bowenpally police station in Kurnool district of Andhra Pradesh. He was detained in connection with a murder case. The police claimed that Venkateswarlu was suffering from asthma and cardiac problems and that he was immediately rushed to the nearby hospital after complaining of chest pain. The police reportedly again brought him back to the police station from the hospital. But the victim had to be rushed to the same hospital for the second time but he died.

 

Case 8: On 23 March 2009, Bane Singh, a Dalit, died as a result of alleged torture in police custody at Boda Police Post at Harlai village in Rajgarh district of Madhya Pradesh. According to the residents of Harlai village, the mother of the victim had registered a complaint at the Boda Police Post on 12 March 2009 about the victim for getting into fights after drinking. Pursuant to the complaint, four policemen including Boda Police Post In-charge Vijay Singh went to the village looking for the victim. The police allegedly beat up the victim before the public at the time of arrest and also tortured him in custody at Boda Police Post. When the victim’s condition deteriorated, the police took him to the Bombay Hospital in Indore. But, he died during treatment.

 

Case 9: On 21 April 2009, Radheshyam Khateek, resident of Regar Mohalla in Jhotwara, died as a result of alleged torture at Jhotwara police station in Jaipur, Rajasthan. The victim was arrested on the charge of selling illicit liquor on 17 April 2009 and sent to judicial custody at the Jaipur Central Jail. The the family of the victim have alleged that he was tortured in police custody which caused his death on 21, April 2009 in hospital.

 

Case 10: On 8 May 2009, Hiradhar Pujari (60 years), a tribal, died at Nabarangpur Hospital in Orissa as a result of alleged torture in illegal custody. According to the victim’s brother, Narasingh Pujari, the police picked up the victim on the morning of 6 May 2009 in connection with a family dispute. He was kept in illegal detention for one day at Kodinga Police Station and tortured. However, the police claimed that the victim was arrested only on 7 May 2009 and that he had complained of chest pain while being taken to the court on 8 May 2009. The victim was taken to Nabarangpur Hospital where he died.

 

 

Case 11: On 4 June 2009, Paramjit Singh alias Kala (42 years) died in hospital as a result of alleged torture while in police custody in Sangrur district of Punjab. Mr Singh was taken to the police station for interrogation in connection with a murder investigation.

 

Case 12: On 16 June 2009, Janardhan Kale (26 years, a resident of Mahi-Jalgaon at Karjat taluka in Ahmednagar district in Maharashtra), died while in Baramati City Police custody in Maharashtra. He was taken into custody on 14 June 2009 in connection with theft cases that took place on May 18th. However, the police claimed that Janardhan Kale confessed to his crime and was taken to Mahi- Jalgaon for investigation. He allegedly escaped from police custody and died in an accident on the Ahmednagar-Solapur highway. Concerns over the the police version of events arose when it was discovered that the police had registered the victim’s name in the station diary when he was taken to Ahmednagar district for further questioning. After the death, the police registered the death as accidental death at the Baramati city police station instead of the concerned police station in Ahmednagar district. The State Criminal Investigation Department (CID), Pune, have launched an investigation into the incident.

 

Case 13: On 22 June 2009, R. Aruma Raja died as a result of alleged torture at Modakurichi police station in Erode district of Tamil Nadu. Mr Raja was picked up by the police for interrogation in connection with a murder investigation. The police claimed that Mr Raja complained of chest pain just before he being produced before the court and was taken to the government hospital, Erode where the doctors declared him dead on arrival. But the victim’s relatives alleged that he died as a result of police torture.

 

Case 14: On 25 June 2009, Sushil Verma (28 years) was allegedly tortured to death at the Bara Banki police station under Bara Banki district of Uttar Pradesh. On 24 June 2009, a complaint was held by one Shiv Baran Singh with Jahangirabad police station stating that he had been robbed by three persons. The victim was brought to the police station to identify some suspects related to the case of robbery. The police claimed that Mr Verma suddenly collapsed in the police station and was rushed to a hospital where he died around noon. However, the victim’s relatives alleged that he died as a result of torture while in police custody.

 

Case 15: On 27 June 2009, Paramjit Singh (33 years) died in police custody at Solan town in Solan district of Himachal Pradesh. The residents of Solan alleged that Mr Singh died as a result of police torture.

 

Case 16: On 1 July 2009, one Raja (32 years) died in police custody in Chandigarh. Raja was handed over to the Chandigarh Police by a Delhi Police Special Team on 29 June 2009 in connection with a robbery in Chandigarh. The Chandigarh Police claimed that he jumped from the window on the third storey of the District Court in Chandigarh in an attempt to escape from police custody and died. However, the victim’s relatives alleged that he was killed by the police.

 

 

Case 17: On the night of 7 July 2009, one Rajbal, a Dalit, (son of Ratiram of Shikar village) was allegedly tortured to death at the Chappar Police Station in Muzaffarnagar district of Uttar Pradesh. Rajbal was brought to the Chappar Police Station along with his brother in connection with a land dispute. Mayaram, the victim’s brother, who allegedly witnessed the torture, stated that Mr Rajbal was beaten with sticks until he fell unconscious. After sometime when Rajbal regained consciousness, he asked for water but he was instead again beaten with sticks.. His condition deteriorated. He lost consciousness again at about 10 pm. The police put Rajbal and Mayaram into the police jeep and took them to the district hospital, Muzaffarnagar. The police then left the hospital. Rajbal was declared “brought dead” by the doctors of the hospital. However, the police claimed that the victim died of heart attack.

 

 

Case 18: On 11 July 2009, 26-year-old Manjunath, an autorickshaw driver, died at the R.T. Nagar police station in Bangalore, Karnataka. Manjunath and his brother Bhuvanesh were picked up for interrogation in connection with an assault. Bhuvanesh alleged that Sub-Inspector Siddalingappa tortured Manjunath in the police station during interrogation and Manjunath died on the way to hospital. The victim’s brother’s statement was corroborated with medical evidence. The medical reports reportedly revealed multiple injuries and blood clots on Manjunath’s right leg, left hand and fingers.

 

 

Case 19: On 17 July 2009, Noora Rathwa, a member of the Border Security Force (BSF), died of alleged torture at the Kwant police station in Vododara district of Gujarat.

 

 

Case 20: On 16 July 2009, Mr Rathwa went to the police station to lodge a complaint about the elopement of his daughter. Assistant Sub-Inspector (ASI) Chandu Rathwa allegedly refused to register the complaint. Mr Rathwa responded angrily to the refusal and he allegedly tried to assault the ASI and was subsequently arrested. He was allegedly tortured in police custody that resulted in death. The Magisterial inquest reportedly found injury marks on the body of the victim.

 

 

Case 21: On the night of 26 July 2009, Jung Bahadur Singh (48 years) died as a result of torture at the Hanspuram police outpost under Naubasta police station in Kanpur in Uttar Pradesh. Mr. Singh was brought to the police outpost by Pappu Singh, Sub-Inspector and In-charge of the outpost with other police personnel following a complaint held against him. The police took him to a nursing home after his condition deteriorated, but the doctors declared him dead on arrival. The police claimed that Mr Singh died as a result of a heart attack. The post-mortem examination conducted on the victim’s body reportedly confirmed that the death was caused as a result of injuries sustained and not as a result of heart attack.

 

Case 22: On 4 August 2009, Satish Kumar, a resident of Delhi, died as a result of alleged torture during interrogation in the custody of Haryana Police at Bahadurgarh in Jhajjar district of Haryana. Mr Kumar with some friends had gone to Himachal Pradesh for a trip. According to victim’s friends, four police officials – Assistant Sub Inspector, Ramesh Kumar, Head Constables, Ashwani Kumar and Teen Singh, and Constable Karanvir of Haryana Police arrived drunk at their hotel in Bilaspur and put them in a vehicle (Qualis) at gun-point on the morning of 4 August 2009. The police officials told them that they were being taken to Jhajjar, Haryana for interrogation in a theft case. They were allegedly tortured on the way. The police stopped on the way for refreshments and it was at this point in the journey that Satish Kumar apparently had a heart attack as a result of abuse. He was taken to a hospital where he was declared “brought dead”.

 

Case 23: On 4 August 2009, Janardhan (32 years) died as a result of alleged torture in police custody at Lal Bahadur Nagar in Hyderabad, Andhra Pradesh. The victim was picked up by the police along with another person on suspicion of theft and misuse of ATM cards on 3 August 2009. The police claimed that on 4 August 2009, the police took the victims back to their homes where stolen items and money were recovered. Returning to the police station Janardhan reportedly complained of chest pain near Uppal bus stop. The police then claimed that Janardhan reportedly asked for tea. He apparently began sweating profusely and fell unconscious after drinking the tea. He was taken to Gandhi Hospital and died while being treated. The family alleged that Janardhan died as a result of police torture.

In all the above cases, NHRC has not taken any effective step to address any of the above situations.

 

 

  1. CUSTODIAL DEATHS THROUGH TORTURE: ALLEGED SUICIDE

 

The tendency of the Police to allege a torture death as a suicide is well known. NHRC has not done much to check these incidents. There has also been no effort to take strict measures against the policemen involved in the alleged cases so as to prevent the occurrence of such incidents, in cases where these were reported to NHRC. In some of the well known cases brought to the cognizance by the Asian Center for Human Rights and Law, the NHRC has not responded as of date. Few of these examples are illustrated below where torture deaths have been explained as suicide by the Police.

 

Case 1: Death of Noor Husain in Police custody claimed as suicide: On 12 September 2009, 56-year-old physically handicapped Noor Hussian (son of Firozdin and resident of Chowdhary Nar) died in police custody at the Rajouri Police Station in Rajouri district of Jammu and Kashmir. Mr Hussain was picked from his house after a court issued a non-bailable warrant against him in connection with a land dispute case. The police claimed that Mr Hussian attempted to commit suicide by consuming some powder-type medicine after telling the police that he was ill. The police rushed him to a hospital where he died. However, the victim’s relatives alleged that Noor Hussain died as a result of torture. The police also allegedly offered Rs 15,000 and a job to one of the family member to cover-up the case.

 

Case 2: Death of Jyoti Rahana due to Police Torture declared as suicide: On 21 September 2009, a 35-year-old woman identified as Jyoti Rahana died of alleged torture while in Ongole Two-Town Police Station custody in Prakasam district of Andhra Pradesh. Jyoti, accused suspect in a kidnapping investigation, was arrested at Visakhapatnam and taken to the Ongole Police Station. The police claimed that Jyoti was kept in the lock-up of the police station where she committed suicide with her chunni (scarf). She was taken to hospital where she was declared dead.66 However, the victim’s relatives alleged that Jyoti died as a result of police torture. The Andhra Pradesh State Human Rights Commission took cognizance of the case.

 

Case 3: Death of Mohammad Wasim Khan in Police custody declared as suicide: On 10 January 2009, Mohammad Wasim Khan was allegedly tortured by police at the lock-up of Shahinayathgunj police station in Hyderabad, Andhra Pradesh. The police claimed that the victim fell from the compound wall during a chase and sustained head injuries. However, victim’s relatives alleged Mr Khan was tortured to extract a confession. The victim had to be admitted to the acute neuro-surgical ward of the Osmania hospital.

 

  1. TORTURE NOT RESULTING IN DEATH-Where are State Human Right Commission’s in action?

 

The majority of torture cases do not result in the death of the victim. While the NHRC has directed all the District Magistrates and the Superintendents of Police to report all cases of custodial deaths within 24 hours, no such directive exists to report allegations of torture that does not result in death. Since police officials are not mandatorily required to report to the NHRC or anybody on custodial torture they enjoy virtual impunity as these cases for the most part escape any official monitoring. Few such cases are examined below.

 

Case 1: From 12-15 January 2009, Mr Nooruddin (22 years, a vegetable vendor and resident of Kinnigoli) was illegally detained and tortured in the custody of the District

Crime Investigation Bureau (DCIB) in Mangalore, Karnataka. Mr Nooruddin was picked up by the DCIB personnel in connection with a murder investigation on 12 January 2009. For the next four days, he was allegedly starved and tortured by DCIB Inspector. The victim alleged that a heavy metal roller was run over his body and he was hung upside down and beaten. On 15 January 2009, the police dumped him near a road in a semi-conscious condition. He reportedly suffered “internal injuries” and “kidney damage”, amongst others[18].

 

Case 2: On 10 February 2009, Abdul Raheman (a labourer) and his 15-year-old son Master Hussain Ashfak (residents of Ulaibettu) were allegedly tortured in the custody of

the Mangalore Rural police in Karnataka. Both Mr Raheman and his son were picked up for questioning in connection with a case. Mr. Raheman alleged that the police pulled his hands and legs out of the cell’s steel bars and hit him with a lathi (stick) continuously. Mr Raheman was seriously injured and had to be admitted to hospital.

 

E- RAPE AS WORST FORM OF HUMAN RIGHT VIOLATION OF WOMEN AND ROLE OF HUMAN RIGHTS COMMISSION

 

Decades of brainstorming and intellectual exercises on definition of rape have been carried out. There has been theoretical development in the definition and forms of rape where marital rape has also been accepted as one of the categories of rape. So may organizations, government and non government have been working in this area. Surprisingly the National Commission for Women has also been making parallel attempts to pressurize government and judiciary to adopt measures to provide relief to rape victims. Not much success has been achieved. We also do not see any coordination or interaction between National Human Rights Commission and National Commission for Women on human rights violations. Notwithstanding anything that goes in the political and intellectual circles on theoretical and legal debates on rape, the suffering and trauma due to rape of rape victims continues and needs to be addressed to which NHRC has not taken any effective steps other than giving a cold hearing and directing authorities to pay compensation to rape victims. No strict and exemplary action has been taken by the NHRC so far, despite the flood of criticism and protest it has provoked.

 

Where are Rape Crisis Centers?We all know what happened in the Uttaranchal case when an issue not uncommon in investigations into, and trial of, rape surfaced. It was reported that women who were raped at Muzaffarnagar are being pressurized not to testify in the criminal cases not only by the police but also by their own community and political leaders, particularly since monetary compensation has been paid. In 1994, the National Commission for Women (NCW) was asked by the Supreme Court to propose a scheme for establishing Rape Crisis Centres, and for a Criminal Injuries Compensation Board, which could care for victims of crime. This is yet to materialize!. Obviously we find NHRC missing from the picture to push for and support NCW for such an important direction given by the Supreme Court of India. As per the wide powers under the Human Rights Act, the NHRC could have also called for the status of implementation of Supreme Court Order to provide relief to the rape victims, which it has not done so far.

 

  1. i) Few lesser known Cases- NHRC a silent spectator to the increasing incidents of rape

 

Case-1: On the night of 8 February 2009, Ms Reshma (name changed), resident of Keshpura village, was allegedly raped in police custody by Satyendra Sheel, Senior Sub Inspector and Station House Officer (SHO) of Fariha police station in Ferozabad district of Uttar Pradesh. The victim was earlier kidnapped and raped by two persons on 6 February 2009. Following a complaint by her brother, the police arrested the accused persons on 8 February 2009 and rescued the victim. However, the police brought the victim to the police station and asked her to stay back at the police station on the pretext that she will be needed to record her statement. But late at night the SHO of the police station, Senior Sub Inspector Satyendra Sheel called her to his official residence and allegedly raped her. So far

 

Case-2: On the night of 13 February 2009, a minor girl, daughter of Narayan Singh, was allegedly raped by Sadhu Ram, Station House Officer (SHO) at the Manendergarh Sadar police station in Rohtak district of Haryana. The victim was rescued from her abductors and taken to the police station to record her statement. Instead of recording her statement the accused raped her. The medical examination of the victim reportedly confirmed rape.

 

Case-3: On 2 June 2009, a 23-year-old woman was allegedly raped by two police constables identified as Phul Chand and Mohd. Asheer posted at the District Jail Pratapgarh in Uttar Pradesh. The accused called the victim on the pretext of arranging a

meeting with her husband who was held in the jail. However, when she reached the jail, the accused took the victim to a secluded place and raped her.

 

Case-4: On 2 June 2009, the victim was arrested in connection with a dowry case. Upon her production before the court she was sent to judicial custody. But the police told

the victim that it would be late by the time they reach the jail and prisoners were not allowed to enter the jail after 6 pm. So the police kept her at the Amla police station where she was gang-raped by four police personnel at night. Medical examination reportedly confirmed rape of the victim.

 

Case-5: In May 2009, Ms Padamavati, working as a labourer in the Police Training Centre in Chittoor district of Andhra Pradesh, was allegedly gang-raped by some police

Personnel including a Reserve Sub-Inspector in the training centre.

 

 

VI- SOME FAMOUS CASES THAT COUGHT PUBLIC ATTENTION ABOUT NHRC’s DOUBTFUL ROLE IN INVESTIGATIONS

 

  1. Batla House Encounter and the Role of National Human Rights Commission

 

Batla House encounter officially known as Operation Batla House, took place on 19 September 2008, against alleged suspected Indian Mujahideen (IM) terrorists in Batla House locality in Jamia Nagar, Delhi, in which two suspected terrorist, Atif Amin and Mohamed Sajid, who were gunned down and two other suspects Mohd Saif and Zeeshan who were arrested, while one accused Ariz Khan allegedly escaped. The two alleged terrorists were students of Jamia Millia Islamia, a reputed Central University in New Delhi. The postmortem reports and probe by several noted citizen groups has shown that the incident was a case of fake encounter. Even after sensation created by media and civil society, the NHRC did not invoke its suo motu powers to order enquiry in to the case where students were shot dead on allegations alone. The Police have not been able to give any satisfactory answers to the queries raised by citizen groups on the Police version of the case and the Police charge sheet. After an Application was filed in the Delhi High Court, to order NHRC for intervention, the NHRC after weeks of the incidents filed its report which was in concurrence with the Police version of the report and took a narrow view similar to what has been popularly used by police “the right of self defense”. No effort seems to have been made by the NHRC to make an independent enquiry in to the facts of the case. The case is pending in the Sessions Court in Delhi.

 

 

  1. NHRCs Role in Ishrat Jehan Case

 

In 2004, Mumbai girl Ishrat and three others were gunned down by the Gujarat police on the outskirts of the state on the allegations by the Gujarat that Ishrat was a LeT (Lashkar-e-Tayyaba) operative. Prior to her gunning down  it was also known that Ishrat Jahan and her three accomplices were kept in the custody for four days in the same farmhouse, where Sohrabbudin’s wife Kauserbi was kept, before the four were killed. On the demands of the citizen groups and after the case was highlighted by media, a defiant Gujarat government rejected a judicial inquiry report that 19-year-old Mumbai college girl Ishrat Jehan and three others were killed in a fake encounter in 2004, saying they were LeT operatives planning terror strikes in the state. After the matter was heard by the Sessions Court in Ahmadabad, the Metropolitan Magistrate S P Tamang submitted its report which gave a version contrary to the what the government and Police had been claiming. Tamang in his report has concluded that four persons– Ishrat, Javed Ghulam Sheikh alias Pranesh Kumar Pillai, Amjad Ali alias Rajkumar Akbar Ali Rana and Jisan Johar Abdul Gani–killed in an encounter on the outskirts of the city on June 15, 2004, were not linked with Pakistan-based terror outfit Lashker-e-Toiba as claimed by the police. Clearly, as per the magistrates report this was a case of fake encounter. However, the NHRC or Gujarat SHRC has not taken any cognizance of the case.

 

 

VII- RECOMMENDATIONS:

           

It is understood that though the Constitution of India guarantees right to life with dignity and the Supreme Court has affirmed the position that right to life under Article 21 of the Constitution means right to live a dignified life where human rights are not only protected but respected. However, we find that the dedicated law the Protection of Human Rights Act, 193 and institutional mechanism the National Human Rights Commission in the country that has been bestowed upon to take the responsibility and flagship to protect human rights of individuals and groups has failed in its objectives. The NHRC in its own reports have verified increasing cases of torture, violence and victimization of marginalized members of society. Moreover, one seldom find that NHRC had used its Suo Motu powers to take cognizance of the cases. Some of the well reported cases do attract NHRCs attention due media publicity and public pressure, however, NHRC has not been pro-active to play the role of sole protector and repository of human rights protection in the country. With the growing saffron fundamentalism and other anti-peace forces gaining prominence to disrupt a situation of peace where human rights of individuals and minority community are respected it is high time that the Act may be reviewed and suitable institutional amendments be brought. A complete re-structuring of the NHRC based on a more in-depth analysis of NHRCs working and capacity has to be carried out, before it is reduced to a redundant and a paper Commission. Few specific recommendations that illustrative only are as below

  • Effective implementation of the Act: It is realized that the Protection of Human Rights Act has not been fully implemented. Several of its provisions pertaining to establishment of fast track district human rights court and efficient district human rights cells remain un-implemented. Human Rights Education and awareness remains a distant dream.

 

  • Removing structural deficiencies under the Act: The Act of 1993 provides the selection of its members from the specified fields, most of them belonging to the judiciary. Such a narrow band of persons restricts the Commission from getting the plurality of perspectives, vocations and diverse experiences from the civil society.

As seen, the Act suffers from several structural deficiencies in terms of the appointment of its members and the Chairman. There is need to revisit the current practice and include the selection of persons who have established commitment for human rights. There is also a need for increasing the capacity of the Commission as several of its post remains vacant for years together.

  • Removing the substantive weakness of the Act: Under the Human Rights Act, the NHRC has the power to make recommendations to the Central Government only. It is also a weak commission in terms of cognizance against members of Armed forces which has worsened the situation in states in the North East.

 

  • Need to bring Social and Economic Rights as the focus under the Human Rights:

Under the Protection of Human Rights of Act, 1993 civil and political rights are given primary importance over social and economic rights. Given the social and economic exploitation of weaker sections of society, there is a need to include these as the focus area too.

 

  • Need for a representation from a minority community in the NHRC: Given the vastness of issues and situations in a country where certain minority groups have been targeted in unfortunate well known incidents in the country, more so in the year and during the time when NHRC was being formed, the Act does not provide any representation by the minority community. This is necessary in order to create a balance of understanding and build confidence of the minority community who may develop confidence into the commission.

 

  • Transparent selection of its members:

 

The committee recommending selection of consists solely of politicians and the process of selection is not transparent. Composition of the Commission is generally decided through noting in secret files or during closed door meetings between the politicians and their favorite bureaucrats. There is need to revisit the procedure for selection of NHRC members

 

  • Removing the dependency of the Commission:

 

As seen NHRC is a dependent Commission for its various activities which form core of its functions. As per the Protection of Human Rights Act, 1993, the commission is dependent on central government financially, on human resources, and several other such matters that enable it to be an independent commission. This has also led to narrowing its field of choice to what is made available by the Government.

 

 

  • Need to remove procedural barriers:

There is a considerable ignorance amongst the public about the Commission’s charter and its procedures which are complex. There is thus a need to remove the procedural barriers and the District Human Rights Courts need to function dedicatedly on the matters concerning human rights in close coordination with District Human Rights Committees.

 

 

  • Need to make it a stronger Commission with the power to bring Armed Forces under its ambit

 

The Human Rights Act does not authorize the Commission to enquire into complaints of violations of human rights committed by the members of the armed forces. “Armed Forces”, as defined in Section 2(1) (a) of the Act, means not only the naval, military and air forces but also the central para-military forces. Since a very large number of complaints of human rights violations are directed against the members of the “armed forces”, the Act obviously weakens the NHRC’s effectiveness in providing redress to the public in such cases. All that the Commission, under Section 19 of the Act can do is to call for reports from the Central Government in such cases and then make recommendations to the Government or not “proceed with the complaint” at all. Under the Act, the Commission has no power to enforce its decisions. According to Section 18 of the Act, where the enquiry conducted by the Commission discloses violation of human rights, it can only advise the government to take action against guilty persons or grant relief to the victim. If any Government refuses to accept the advice, there is no provision in law which empowers the Commission to force the Government to implement its advice.  The Commission is thus weak, deficient and dependent in many respects.

 

 

 

[1] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.

[2] Subhash Kumar vs State of Bihar, AIR 1991 SC 420

[3] The Human Rights Courts envisaged in the act have not been set up subsequently.

[4] NHRC, Annual Report 1999-2000, p.83, para.16.1.

[5] See e.g. its “Important Instructions/Guidelines” relating to custodial deaths/rape and encounter deaths, supra.

[6] See NHRC, Annual Report, 1998-1999, III.C, 3.22

[7] The Commission undoubtedly has some achievements to its credit. It has succeeded in persuading the Central Government to sign the United Nations Convention against Torture and Other Forms of Cruel, Inhuman and Degrading Punishment or Treatment. It has brought into sharp focus the problem of custodial deaths and taken steps to see that these are not suppressed by the state agencies and that the guilty persons are made to account for their sins of commission and omission. It has also helped in designing specialised training modules on human rights for introduction in the educational and training institutions.

[8] . Section 2 (d) of the Protection of Human Rights Act, 1993

[9] It is surprising that the South Africans appear to have realized this as they have mandated, through Article 184 (3) of the Constitution of the Republic of South Africa, 1996, their human rights commission to “require relevant organs of state to provide the commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and environment.”

[10] Section 3 of the Protection of Human Rights Act

[11] Section 11 of the Act

[12] These findings have been annexed after a series of consultations and discussions with Human Rights Activists and people working on human rights issues in government and non government.

[13] Most of the Cases mentioned in this Report have been taken from the reports and complaints made by the Asian Centre for Human Rights http://www.achrweb.org/reports/india/torture2010.pdf

[14] See Annual Reports of NHRC (2001-02 to 2006-07) available at http://www.nhrc.nic.in/

[15] Unstarred Question No. 482, Answered in the Lok Sabha on 07.07.2009

[16] http://www.achrweb.org/reports/india/torture2010.pdf

[17] NHRC Case No. 587/10/1/08-09-AD

[18] ACHR’s complaint to NHRC, 20 January 2009, ACHR’s Reference No: KT/10/2009