Human Rights & Human Rights Instruments in India (From the SAHRDC Resource Centre)

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Human Rights & Human

Rights Instruments

in India

International Human Rights Instruments and their Application in

India

Political murders, disappearances, torture: frequency and

methods

Torture

Death Penalty: frequency and methods

Preventive Detention Laws in India

Freedom of Expression and Media Freedom

Elections and the Right to Political Governance

Discrimination on the basis of race, sex, color, ethnic origin,

religious or political belief

Discrimination based of Education, Employment, Health Care

and Housing

The Status of Women

Bonded and Child LaborThe State and Human Rights Groups

Endnotes

1. International Human Rights Instruments and their Application in India

The Chart of Ratification of International Instruments, provided by the United Nations, should ideallyform the corpus of international customary law, applicable in all democratic countries. Once an instrumentis ratified a signatory is bound to bring in laws that conform to United Nations standards. Even if theseinstruments are not legally binding, they are morally compelling.

India has yet to ratify a host of international instruments.

Its adherence to them is, at best, ambiguous. The mandate of the National Human Rights Commission(NHRC), established under the Human Rights Protection Act of 1993, provides a lens through which thesituation can be better understood.

According to the Statement of Objects and Reasons of the Human Rights Protection Bill, the NHRCwould review the existing laws, procedures, and the system of administration, and emphasize that India isa party to the International Covenant on Civil and Political Rights (ICCPR) as well as the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR).

However, India is not a signatory to many other international conventions or mechanisms like the UNConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, theConvention on the Status of Refugees, Optional Protocols to the ICCPR and the Protocol relating to thestatus of refugees. The UN Code of Conduct for Law Enforcement Officials, the UN Body of Principlesfor the Protection of All Persons under Any Form of Detention or Imprisonment, and the UN Principles onthe Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions also formthe basic tenets of customary international law.

On 18 January 1994, South Asia Human Rights Documentation Centre (SAHRDC) wrote to the NationalHuman Rights Commission to reiterate SAHRDC's desire to seek clarification on Clause 1, Sub Clause (d),

n Rights & Human Rights Instruments in India (From the SAHRDC ... http:/ /hrdc.net/sahrdc/resources/hr_instru

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of the Human Rights Protection Act which states "human rights means the right relating to life, liberty,equality and dignity of the individual guaranteed by the Constitution or embodied in the InternationalCovenants and enforceable by courts in India".

"Human rights", as defined in the sub-clause (d) of Clause 1 of the Human Rights Protection Act of 1993,is extremely restrictive and does not adhere to the international instruments; so restrictive, in fact, that itgoes against the very spirit of the Universal Declaration of Human Rights.

For example, while ratifying the International Covenants on 27 March 1979, India expressed itsreservation to Article 9 of the ICCPR relating to preventive detention. The delegation from India stated,"With reference to article 9 of the ICCPR, the Government of the Republic of India takes the position thatthe provisions of the article shall be so applied as to be in consonance with the provisions of the clauses(3) to (7) of the article 22 of the Constitution of India. Further, under the Indian legal system, there is noenforceable right to compensation for persons claiming to be victims of unlawful arrest and detentionagainst the State." However, the Supreme Court of India in recent judgements has been attempting tobroaden the scope of compensation.

The reason offered by the Government of India is, as usual, a thinly veiled excuse. Though the right tocompensation has been constrained by lack of adequate constitutional provisions and their officialexpression of reservations at the provisions in the ICCPR, compensation for illegal arrest and detention

and custodial deaths have been awarded at the discretion of individual judges or benches.

A whole set of rights embodied in Article 12, 19(3), 21 and 22 of the ICCPR (the right to freedom ofmovement, the rights permissible curbs on freedom of speech, the right to assembly and association), arerestricted. Article 17 of the ICCPR relating to the right to privacy is also legally enforceable in India,especially, in post and telephone communications.

In its letter to the National Human Rights Commission, SAHRDC stated that all international conventionsthat form the corpus of international customary law are applicable in all countries that are members of theUnited Nations and the World Community. SAHRDC specifically referred to the following conventions,declarations and principles in addition to the two covenants mentioned in the NHRC Act:

Universal Declaration of Human Rights

Convention against Torture

Convention on the Elimination of Racial Discrimination

Convention on the Prevention and Punishment of Genocide

Convention relating to the Status of Refugees

Convention on the Elimination of Discrimination Against Women

Convention on the Rights of the Child

SAHRDC also drew the attention of the NHRC to the four Geneva Conventions and their AdditionalProtocols. It pointed out that internationally accepted principles relating to the administration of justicewould have to be incorporated into the NHRC's work.

These included:

Standard Minimum Rules for the Treatment of Prisoners

Code of Conduct for Law Enforcement Officials


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Body of Principles on Detention or Imprisonment

Principles of Medical Ethics

Basic Principles on the Independence of the Judiciary

Basic Principles on the Role of Lawyers

Declaration on Protection from Enforced Disappearances

Principles on the Prevention of Summary Executions

SAHRDC did not receive a response from the National Human Rights Commission. However, in its firstAnnual Report the NHRC suggested some amendments to the Protection of Human Rights Act. Referringto Section 2(1)(d), the NHRC suggested "Human rights means the right relating to life, liberty, equalityand dignity of the individual guaranteed by the Constitution or embodied in the International Covenants,Conventions and Treaties to which India is party".

The only difference in the suggested amendment to the Section 2(1)(d) is that if India is a party to aCovenant, they do not have to be legally enforceable in courts in India for the NHRC to act on petitionsbased on these human rights issues.

Human Rights Education

Over the years, the government has taken very few steps to increase human rights awareness at either theinstitutional level or informal level. This has been one of the major contributing factors to persistenthuman rights violations, particularly by law enforcement officials, who are not given any human rightstraining.

The National Council for Teachers Education has introduced a self learning module on "Human Rightsand National Values" on 11 March 1996 to train the teachers on human rights. The National Human RightsCommission also organized a seminar on Human Rights Education on 16 February 1996 in collaborationwith Canadian Human Rights Commission. The National Human Rights Commission in cooperation withthe National Council of Educational Research and Training has brought out a source book on human rightseduction. The NHRC's programme evoked mixed reaction. Although, human rights activists welcomed theNHRC's initiatives, it has not been modeled as to attract the students.

However, human rights eduction of the law enforcement personnel is yet to be comprehensivelydiscussed. On 6 February 1996, personnel of several para-military forces at a debate asserted that unduestress on adherence to human rights would make them inactive thereby crippling anti-terrorist operations.Organized by the National Human Rights Commission, in collaboration with the Border Security Forces,the debate on "Security forces observing human rights are better equipped to combat organized violence"evoked divergent views with speakers opposing the proposition forcefully making the point that thelanguage of love would not work with terrorists.

Stating that para-military forces would be rendered ineffective if they were more worried about humanrights, the speakers said it had become a fashion to speak of human rights and its violation. Theyemphasized that terrorism and organized violence could be annihilated only through barrel of guns.

However, there were many who spoke the language of Gandhi and tried to bring home the fact thatlong-term remedy for terrorism and violence lay in persuasive efforts and observance of human rights.They said that by violating human rights short-term success might be possible. But the real remedy, theyargued, was in getting the support of the people which was possible only by adhering to human rights to

the core.(1)


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2. Political murders, disappearances, torture: Frequency and Methods

Political killings, extrajudicial executions and disappearances continue across India. State agents,non-State agents, fundamentalist religious groups and political hoodlums regularly use terror tactics andviolence for their own purposes.

Areas afflicted by internal armed conflict such as Jammu and Kashmir, the north eastern states, thesouthern state of Andhra Pradesh, and the North Indian states of Bihar and Madhya Pradesh have

witnessed an increase in political killings. Security force personnel, in the name of maintaining law andorder, have massacred scores of innocent people.

Political killings continued by both the Government forces and the insurgents at a high rate in Jammu &Kashmir and the seven north-eastern States where separatist insurgencies continued.

On 21 March 1996, the National Human Rights Commission (NHRC) directed the Bihar Government toconduct expeditious investigation into the killing of Communist Party of India (M-L) activists by the Statepolice personnel at Begusarai and also effect payment of suitable compensation to the next of kin of thedeceased and injured.

In August 1995, the Commission took suo motu cognisance of a press report that five political activists

had been killed in unprovoked police firing. Subsequently, the Commission also received a complaint fromMr Swadesh Bhattacharya, a Politburo member of the CPI (ML), alleging that five of his party activistswere killed by the police.

Following this complaint, the commission sent the Senior Superintendent of Police from its investigationdivision to conduct an on-the-spot enquiry, he reported to the Commission that the police killed Mr NandLal Paswan and Mr Sikander in firing and injured Mr Sunil Paswan and Mr Rajgir Paswan.

The report also held that the firing in the office of CPI (M-L) and in the adjoining area appeared to be anover-reaction to the stone-throwing by these activists. It was also mentioned that police had not usedteargas nor had taken any other precautions like warning them or ordering a cane-charge before resortingto firing and that too from close range.

After noting that the First Information Report (FIR) was duly registered and that the case was underinvestigation, the Commission recommended to the Bihar Government to complete the inquiryexpeditiously and also directed its Superintendent of Police to monitor it.

Further, the Commission recommended a compensation of Rs 50,000 for the next of kin of those killed

and Rs 10,000 for those with serious injuries and Rs 5,000 for the other injured.(2)

On 4 February 1996, armed militants raided Dab Bari village under Kamalpur subdivision in Dhalaidistrict in Tripura and set ablaze houses in which three women, including a girl were burnt death.

They also opened fire indiscriminately and set ablaze several houses and threw a four-year-old child into

the fire in which another two women were also charred to death. Many others who were injured wereadmitted to hospitals.(3)

Government employees in Manipur have been forced to pay a monthly tax to the armed oppositiongroups. The rate varies between one and five per cent of a person's salary. Every month, a contact manworking in government offices, hospitals, banks and even schools, collects the sum, ranging between Rs50 to Rs 200 per person, and hands it over militants. Those posted in hill districts, a haven for insurgents,have to pay more.

Banks and financial institutions are a major target. Eleven bank branches stopped operations last month.The "tax" cuts across ethnic lines. The salaried classes fall under one category, and businessmen in


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another. Entrepreneurs are issued "demand notes" and the amount is usually in hundreds of thousand. No

one protests. Neither the state administration nor the police have taken steps to counter the menace. (4)

One Kamaluddin Sheikh (45) headmaster of Gasbari Lower Primary School in Assam was gunned downby four unidentified bicycle-borne miscreants suspected to be activists of the United Liberation Front ofAssam (ULFA) at around 8 am at Dumarha under Golokganj police station on 7 March 1996. Themiscreants fired from a revolver at Mr Sheikh from point-blank range while he was waiting on national

highway No. 31 at Dumardaha to board a Dhubri-bound bus. (5)

Mr Pranab Debbarma, a Member of Tripura State Legislative Assembly was kidnapped from his house inWest Tripura on 19 January 1996. The officials alleged that Mr Debbarma was reportedly taken to the

insurgent base camp in Sylhet, Bangladesh. His whereabouts are presently unknown.(6)

On 13 February 1996, the Assam executive, Mr B B Mukherjee was allegedly abducted by suspectedULFA activists. Mr Mukherjee, general manager of the Bharat Hydro Electric Power Corporation

(BHEPC), was kidnapped from his office at Amtereng in Karbi Anglong district.(7)

On 23 February 1996, eight persons, mostly casual laborers, were killed when the Bodo armed oppositiongroup members fired indiscriminately at their rest camp under Kokrajhar district, Assam. Two laborers

were critically injured in the attack.(8)

On 26 February 1996, Mr B K Chanda, one of two Crompton Greaves executives kidnapped in January1996 was "executed" by Bodo militants in Assam's Sonitpur district. Mr Chanda was taken to Dakhinsalain Sonitpur adjoining Arunachal Pradesh by two motor-cycle-borne armed opposition group members andshot dead at point blank range. They left a note beside his body saying he was "given the death sentence"

because the company failed to pay Rs 20 million as ransom.(9)

On 3 March 1996, armed opposition groups in Kashmir shot dead Karam Chand (65) in his house at KharBhaderwah in Doda district and kidnapped his son, Ram Raj. The Bullet-riddled body of Ram Raj was

recovered by police from the same area later.(10)

On 14 March 1996, the United Liberation Front of Asom (ULFA) were suspected to have gunned downthe Assam cultural affairs department director, Mr Bimal Bhuyan, who was also the Principal InformationOfficer (PIO) to then Chief Minister Mr Hiteswar Saikia. Mr Bimal Bhuyan, aged 35, former lecturer ofCotton College, Guwahati was gunned down as his vehicle stopped in front of the gate of his residence in

Srimantapur. (11)

3. Torture

Torture is a sanctioned practice in the administration of justice in India. The police regularly violate theUN Code of Conduct for Law Enforcement Officials and the guidelines for the use of fire arms. Torture,extortion, and rape take place with impunity in police custody across the country. Terrorist and politicalgroups also indulge in these practices.

Mr Deendayal, 40, a poor balloon seller in Bhopal, Madhya Pradesh was picked up by the police on 19January 1996 for inquiry into a case in which a gas cylinder used to fill balloons burst, injuring fivechildren. Unable to bear the torture, he consumed poison while in custody. The district administrationordered a magisterial inquiry into the matter, after the police made a vain attempt to hush up the case .

In a written statement issued to the press, the police claimed Deendayal was picked up at 12.30 am in a

serious condition, brought to the police station, and admitted to hospital at 1.30 am, where he died.(12)


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Mr Prasad, an ex-convict died allegedly due to torture in police custody at Neredmet on the outskirts ofHyderabad on 2 March 1996. Mr Prasad, 28, was picked up by the police a couple of days earlier on acharge of a theft. During the interrogation at Saroornagar police station, the accused confessed to havingcommitted theft. He was then taken to his room at Neredmet by the police who asked him to identify thestolen goods. Even as the police were in the process of seizing the stolen property, Prasad collapsed and

died.(13)

The Central Bureau of Investigation (CBI) has indicted the Punjab Police officers involved in the widely

publicized tattooing case in which the words "jebkatri" (pick pockets) were tattooed on the forehead offour women by the Punjab Police few years ago.

In its report submitted to the Punjab and Haryana High Court on 16 February 1996, the CBI indicted thethen Superintendent of Police of Amritsar, Mr Sukhdev Singh Chhina.

The report, opened before a division bench comprising Mr Justice G S Singhvi and Mr Justice S SSudhalkar, confirmed the allegations levelled by the women that the words "jebkatri" were engraved ontheir foreheads by police officials, including Mr Narinder Singh Malhi, Assistant Sub inspector (ASI) andMr Kamaljit Singh, ASI. The report confirmed that prior to their being taken into custody, there was no

mark on the forehead of the women.(14)

The police has arrested ASI Ram Kumar under Section 342 and 323 of Indian Penal Code (IPC) on chargeof beating up Anil Kumar of Loharo Mohana village in Haryana and causing injury to him duringinterrogation in connection with a theft case. Mr Anil Kumar was picked up by the ASI concerned inconnection with a theft and the police recovered some articles from his possession.

However, at night the ASI under the influence of liquor gave the suspect a severe beating leading toinjuries on his genitals. Anil Kumar who fell unconscious was admitted to the Civil Hospital from where

he escaped. But he was again arrested at Panipat and brought back to the local civil hospital. (15)

The People's Union for Democratic Rights (PUDR) claimed that at least three police custody deaths,which were officially termed as "suicides" were actually due to poisoning and "foul play on the part of

police officials cannot be ruled out." The PUDR demanded that a FIR be registered under abetment tosuicide or causing death due to negligence "in every instance where the cause of a custodial death isrecorded as suicide." It also demanded that "adequate compensation be paid to the families of the victimsin the concerned cases."

Citing the cases, the PUDR said that a factory worker, Ram Gopal (26), died in police custody in Sector 7,Faridabad, Haryana on February 7, 1996. The police claimed that he consumed acid in the police stationtoilet. However, following a Sub-Divisional Magistrate's inquest, it was found that death occurred due topoison and the inquest also confirmed torture and humiliation of the deceased while he was in policecustody.

A vegetable vendor and a resident of Modinagar in Uttar Pradesh, Ravinder (21) was allegedly detained

by the Inter State Bus Terminal police in Delhi on 24 February 1996, following a complaint by hisneighbor, Amar Singh, that Ravinder had kidnapped his minor daughter. Amar Singh allegedly told thepolice that an FIR was registered at Modinagar Police station against Ravinder.

The police is said to have claimed that soon after Amar left, Ravinder consumed poison which he wascarrying in his bag. The PUDR said that a few hours later, when Ravinder died at the Bara Hindu Raohospital, Amar returned to say that his daughter had come back. Moreover, the FIR at Modinagar, referredto by the police did not exist.

A resident of Jammu and Kashmir, then employed as a fruit vendor at Azadpur mandi, GhulamMohammed allegedly consumed poison in the police post on 31 December 1995. Ghulam had allegedly


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eloped with a woman from his village and the girl's relatives who caught Ghulam at the Capital had

brought him to the police. However, no FIR was lodged. (16)

The officer-in-charge and a constable of Jhinkpani police station in West Singhbhum, Bihar weresuspended for the death of 25-year-old youth Mr Kolai Sevayya in custody 19 February 1996. KolaiSevayya had been arrested in connection with a murder case.

According to police sources, Sevayya was arrested in connection with the murder of 22-year-old Rajnish

Srivastava a resident of Jhinkpani village. Srivastava was lynched and beheaded by irate villagers ofGindrubasa after he misbehaved with Sevayya's wife.

The villagers alleged Sevayya was tied by his legs to a tree by the police for several hours and beaten up.

He succumbed to his injuries at the police station. (17)

Treatment of Torture Victims

The Indian Medical Association (IMA) set up a high-level committee to develop a core content forundergraduate students in medical ethics and human rights that will include all aspects of identifyingtorture victims, giving them psychological counselling and involving them in the long term rehabilitationprocess.

Many medical practitioner do not appreciate the nuances involved in understanding an injury, whether it isphysical or psychological. Subjects such as privileges of a prisoner are also not familiar to them. High levelconsultations have been held between the National Human Rights Commission (NHRC) and the IMA thathas paved the way for greater cooperation in refining the curriculum of medical students, particularly inmedical ethics and human rights.

The IMA had sent a questionnaire on medical ethics and torture to 10,000 of its members during mid 1995to check the level of their awareness and knowledge. Based on the feedback, a three-day workshop on"Training master trainers and counsellors for counselling torture survivors" was conducted at the Dr A KSinha Institute of Higher Education in October 1995. It was emphasized that the doctors must be taught toidentify torture victims in the first place.

In February 1996, senior IMA officials and Prof Erik Holst, Executive Vice-President of the InternationalRehabilitation Council for Torture Victims held discussion with the Secretary General of the NHRC on

various aspects of medical ethics and human rights.(18)

4. Death Penalty: Frequency and Methods

Article 21 of the Constitution of India states: "No person shall be deprived of his life or personal libertyexcept according to procedure established by law". However, much is left to be desired from the judicialadministration. At least six executions in 1992 and four executions in 1993 are reported to have been

carried out in India. Two executions were reported in 1995.(19)

A District and Sessions court on 4 June 1996 awarded death sentence to a 38-year-old under-trial Mr AjayKumar under section 302 of IPC for murdering Ashok Kumar at Palika Bazar, Connaught Place, NewDelhi on 6 October 1982. He has been in judicial custody for the past 14 years. The court also sentencedthree of his accomplices to life imprisonment. Besides the death sentence, a fine of Rs 35,000 wasimposed on Ajay for different acts under various sections of IPC. A fine of Rs 20,000 each was also

imposed on Narinder Kumar and Mohinder Kumar, while their third associate was fined Rs 10,000.(20)

On 19 February 1996, Sk Firoj, Sk Chandi Munna and Sk Bablu were sentenced to death by hanging by


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the Fifth Additional Sessions Judge, Alipore, Mr Bimal Chandra Biswas, in Calcutta for the murder andrape of a nine-year-old girl, on the night of 6 June 1993.

The judge sentenced the three convicts also to life imprisonment on the charge of rape and an additionalseven years rigorous imprisonment and a fine of Rs 2,000, in default another six months R.I.

The special public prosecutor said, when the girl was returning to her grandfather's house in Shibtolla lane,Tiljela on 6 June 1993 accused Sk. Gia offered her a lollipop, which was seen by members of the locality.

Parveen followed Sk. Gia to a temple where the three other convicts were waiting. There the four rapedher one by one following which girl died. But to make certain, they throttled her and left her body coveredwith cardboard, which was discovered the next day. Local people who came to know of it caught Sk. Gia

and beat him to death. The other three were arrested. (21)

The death penalty in India is generally carried out by hanging. The Supreme Court reiterated on 19January 1995 that hanging was constitutionally valid, stating that it was a humane, painless, and quickmethod of execution. The procedure for awarding a capital punishment sentence stipulates that the bodyshould hang for 30 minutes to ensure death. Only after the medical officer certifies that the person is deadcan the body be brought down and the rope be removed. This procedure is outlined in the Punjab JailManual.

A writ petition before the Supreme Court has been filed challenging this provision. The writ petitionsuggested administering an overdose of tranquilizers or injecting the convicted prisoner with potassiumcyanide as an alternative to hanging.

The division bench comprised of Justices Kuldeep Singh and B.L. Hansaria ruled that when the "jerk" wasdelivered by the executioner from the scaffold, the body should be released from the rope only after themedical officer has declared that the person is dead.

Upholding the constitutional validity of the execution of a death sentence by hanging, the bench said thatthe apex court in its earlier judgements had upheld hanging by rope provided under section 354(5) of the

Criminal Procedure Code. (22)

India has progressively increased the number of offenses to which the death penalty applies - Section 121,Section 132, Section 302, Section 303, Section 305, Section 307 and Section 396 of the Indian PenalCode, as well as certain sections of the Narcotics and Psychotropic Substances Act of 1986 and theTerrorist and Disruptive Activities (Prevention) Act have provisions for the death penalty.

Section 302 of the Indian Penal Code (IPC) prescribes death or life imprisonment as the penalty formurder. The question was raised whether Section 302 of the Indian Penal Code, which provides for thedeath sentence as an alternative penalty, was constitutionally valid in the case of Bacchan Singh vs Unionof India. The death sentence, even as an alternative penalty, was thought to be tempered by the widediscretionary powers given to the judge.

Judicial discretion makes it almost impossible to outlaw the death sentence as an alternative penalty formurder. The Supreme Court has held that section 302 could be imposed in the "rarest of rare" cases.

Even more unconstitutional is Section 305 of the Indian Penal Code, pertaining to murder by a lifeconvict, which excludes judicial discretion and is therefore arbitrary and oppressive.

Judges in India have the discretion to impose or not impose the death penalty. It is one of the greatburdens that judges in this country have to carry despite the fact that Section 354(3) of the CriminalProcedure Code (1973) attempts to narrow down this discretion through the following provision: "Whenthe conviction is for an offence punishable with death, or in the alternative imprisonment for life orimprisonment for a term of years, the judgement shall state the reasons why the sentence was awarded,and in the case of a sentence of death, the special reasons for such sentence." The burden of discovering


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these "special reasons" is on the judges.

Under the Indian legal system, the death sentence can be passed by a Sessions Court and appealed in theHigh Court. The decision of the High Court can be appealed in the Supreme Court, and as a last resort, anappeal for mercy can be made to the President of India. Petitions for mercy are very rarely entertained.

In parts of the country declared Disturbed Areas, like some states in the North-East of India and Jammuand Kashmir, draconian laws, such as the Armed Forces Special Powers Act of 1958, are brutally

enforced. In these regions the judicial system has broken down. Legal provisions are such that underSection 4(A) of the Armed Forces Special Powers Act, a non-commissioned officer can give the order toshoot and kill purely on the grounds of suspicion. This too must be considered as an extension of the

judicial validity of the death penalty.

Despite the fact that India is a signatory to the Universal Declaration of Human Rights and thereforecompelled to respect its provisions, India has yet to "accept" and "observe" the principles regardingcapital punishment in their fullest sense. The General Assembly of the UN resolved in 1971 that "in orderto fully guarantee the right to life, provided for in Article 3 of the Universal Declaration of Human Rights,the number of offenses for which capital punishment may be imposed should be progressively restricted,stressing "desirability of abolishing this punishment in all countries".

The death penalty violates the fundamental right to life stated in the Indian Constitution and the UniversalDeclaration of Human Rights. India, despite its great tradition of non-violence, still upholds a violativeinstrument that contradicts the very concept of Justice.

In a case relating to right to life, the Supreme Court on 21 March 1996 overruled its earlier judgement,observing that the punishment for attempt to commit suicide, as prescribed by the Indian Penal Code, isconstitutional.

It ruled that attempt to suicide and its abetment would continue to be punishable under sections 309 and306 of the Indian Penal Code (IPC) as article 21 of the Constitution, guaranteeing right to life, did notinclude right to die.

The judges said that one of the points raised in the appeal was that the inclusion of the "right to die" withinthe ambit of Article 21 (Right to Life and Personal Liberty) shows that any person abetting it was merelyassisting in the enforcement of a fundamental right.

The appeal further said that section 306 of IPC, making abetment to suicide punishable, violates Article21.

The judges said Article 21 is a provision guaranteeing personal liberty and protection of life. By no stretchof imagination can "extinction of life" be read to be included in "protection of life".

They added, "right to life is a natural right embodied in Article 21, but suicide is an unnatural terminationof life and therefore incompatible and inconsistent with the concept of right to life".

The court said that any aspect of life which makes it dignified may be read into Article 21 but not thatwhich extinguishes it. They added that the "right to die", if nay, is inherently incompatible with the "rightto life" as is "death" with "life".

The judges said that assisted suicide and assisted attempt to commit suicide were made punishable forcogent reasons in the interests of society. They added that the abettor has to be viewed differentlyinasmuch as he abets the extinguishing of life of another person, and punishment of abetment is

considered necessary to prevent the abuse of the absence of such a penal provision. (23)


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5. Preventive Detention Laws in India

Preventive Detention was authorized in India in the first half of the Twentieth century by the Defence ofIndia Acts of 1915 and 1939, by the Government of India Act of 1919, the infamous Rowlatt Act 1919,and The Bengal Criminal Law Amendment Act of 1925. Under some of these detention laws a prisonercould be detained for six months without informing him of the grounds of his arrest. Only if the detentionperiod was to be extended would the prisoner be informed of the grounds for his arrest and be referred toa special tribunal.

Since independence, the Government of India had been passing legislation that violates the fundamentalrights and liberties of the Indian people. These acts infringe fundamental rights, are devoid of theprinciples of natural justice and invest arbitrary powers in the hands of law enforcement agencies. Theyare passed with a specific purpose but are entirely misused. There are forty such laws presently on thestatute book in India. What is most disturbing about all these pieces of legislation are the precedents set bytheir implementation. In essence new procedures, a new hierarchy of courts, new restrictions on the lifeand liberties of the people and in short, a new structure of democracy in the name of securing public orderwhich gives wide powers to the law enforcement authorities are being created, gradually eroding thedemocratic process.

When the Constitution came into force on 26 January 1950, several provincial acts and ordinances

providing for preventive detention became void because they were inconsistent with part three of theConstitution of India, which guarantees fundamental rights and liberties to the citizens. Article 22 of theconstitution which guarantees protection against arrest and detention and also laid down the scheme underwhich a preventive detention law could be enacted.

Just one month after the Indian Constitution came into force, on 26 February 1950, the government ofIndia enacted a central legislation: the Preventive Detention Act (PDA), 1950. It was originally enacted asa temporary legislation and was to expire in 1951 but its life was extended through various amendmentsuntil 1969. The Defence of India Act (DIA) was passed in 1962, the maintenance of Internal Security Act(MISA) in 1971 and Conservation of Foreign Exchange and Prevention of Smuggling Activities Act(COFEPSA), 1974 and National Security Act (NSA), 1980.

Yet another draconian piece of legislation, the Terrorist And Disruptive Activities (Prevention) Act(TADA) was passed in 1985. It was meant to expire after two years, however, it was regularly extendedevery two years until April 1995. The constitutional validity of TADA was challenged before the SupremeCourt in March 1994, but the Supreme Court effectively put a seal on it by upholding the constitutionalvalidity TADA, putting the clock back about 40 years. It even overrode its own majority decision inMenaka Gandhi in 1978. TADA expired on 24 May 1995 and it is in the process of reenactment under anew name: the Criminal Law Amendment Bill.

Barring a short span of one and half years in the 1970's and another short span of two years during the late1970's Janata Dal regime - the people of India have never been without the sword of draconian preventivedetention laws hanging over their heads.

The new Criminal Law Amendment Bill was introduced in the Rajya Sabha (upper house of the IndianParliament on 18 May 1995 and is still haunting the corridors of Parliament house. It met with stiffopposition from Janata Dal and left-leaning parties and was caught in the political tug of war between theright wing BJP party and the National Front on the left.

Designated Courts under TADA

TADA provides for the constitution of designated courts for speedy and expeditious trial of offenses. TheAct does not provide any procedure for pre-trial cases, nor does the Criminal Procedure Code (CrPC)provide any guidelines. TADA, however, allows a maximum one-year detention, while 90 days is the


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prescribed limit under the CrPC. The First Information Report (FIR) is not available to the accused eitherupon arrest or when he/she is produced before the court for a remand. The identity of the witness isconfidential and the accused has no right to cross-examine. Appeals against bail applications can only beaddressed to the Supreme Court. Statements made to police officers are admissible as evidence in court, aprovision which essentially sanctions coerced confessions.

Even under the existing preventive detention law, a person cannot be detained beyond three monthswithout the case being referred to an advisory board that has the authority to release him/her if the

grounds for arrest are irrelevant.

TADA has no system of checks and balances which would curb misuse of the law. In fact, the intention ofthe legislature is to by-pass judicial scrutiny. A TADA case is primarily prepared from the point of view ofthe police. In most cases the accused is acquitted, but nevertheless punished by the long period of pre-trialincarceration, which is usually no less than two to three years. This is the `just' procedure prescribed forthe trial of a terrorist in India. In essence the accused is blindfolded through out the trial.

The Supreme Court in a verdict in March 1996 liberalized release of TADA accused on bail and directionto all TADA courts to consider granting the "hardcore elements" languishing in jails all over the countywith no prospect of speedy trial, in consonance with right to personal liberty enshrined under Article 21 ofthe Constitution.

The judgement, delivered by a division bench comprising the Chief Justice, Mr Justice A M Ahmadi andMs Justice Sujata V Manohar, reconciled conflicting claims of individual liberty versus the right of thecommunity and the nation to safety and protection from terrorism and disruptive activities.

For the purpose of release of TADA accused on bail, the Court classified all the accused persons inbroadly two categories, namely hardcore elements and others. While in case of hardcore elements the bailprovisions of TADA will apply strictly, in other cases the Designated Courts will be liberal in granting bailto the accused.

This will release the pressure on the courts in the matter of priority trial. Once the total number ofprisoners in jail shrinks, those belonging to the hardcore category and, therefore, kept in jail, can be tried

on a priority basis, Ms Justice Manohar, who delivered the judgement on behalf of the Court, observed.

That would help ensure that the evidence against them does not fade away on account of delay which mayotherwise harm the prosecution case and the harsh bail provisions may prove counter-productive, she saidand added a pragmatic approach alone can save the situation for, otherwise, one may be found to havecompleted the maximum punishment provided by law by being in jail without a trial.

The Court made it clear that even in cases where a large number of persons are tied up with the aid ofIndian Penal Code Provisions like conspiracy and rioting, the role of each person can certainly beevaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberallyconsidered.

"With inadequate number of courts, the only pragmatic way is to reduce the prison population of TADAdetenus, which is at present about 6,000, and then deal with hardcore under-trials on priority or is lost.Such an approach will take care of both the competing interest", Ms Justice Manohar observed whilerequesting the TADA courts to act accordingly so that the real culprits are promptly tried and punished.

Further elaborating on this issue, the Court divided under-trials in four categories namely:

hardcore under-trials whose release would prejudice the prosecution case and whose liberty mayprove to be a menace to society in general and to the complainant and prosecution witnesses inparticular;


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other under-trials whose overacts or involvement directly attract substantive provisions of theTADA namely Sections 3 and 4 of the law;

under-trials who are roped in, not because of any activity directly attracting under substantiveprovisions of the Act but by virtue of certain provisions of the Indian Penal Code relating toconspiracy and rioting, and;

those under-trials who were found possessing incriminating articles in notified areas and are booked

under Section 5 of the TADA.

The Judges say ordinarily, it is true that the bail provisions of TADA would apply to all the under-trialsbooked under the Act. But while adopting a pragmatic and just approach, no one can dispute the fact thatall of them cannot be dealt with by the same yardstick. Different approaches would be justified on thebasis of the gravity of the charges.

Adopting this approach, the Court expressed the view that under-trials falling within group (A), namelyhardcore elements, could not receive liberal treatment. Cases of under-trials falling in group (B), whoseovert acts or involvement directly attract substantive provisions of the act, would have to be dealt withdifferently. If they have been in prison for five years or more and their trial is not likely to be completedwithin the next six months, they can be released on bail unless the court comes to the conclusion that their

antecedents are such that releasing them may be harmful to the lives of the complainant, the familymembers of the complainant, or witnesses.

Under-trials falling in group (C) and (D) can be dealt with leniently and they can be released if they havebeen in jail for three years and two years respectively. Those falling in group (B), when released on bail,may be released on bail of not less than Rs 50,000 with one surety for like amount and those falling ingroup (C) and (D) may be released on bail on their executing a bond for like amount, subject to thefollowing terms:

The accused shall report to the concerned police station once a week;

The accused shall remain within the area of jurisdiction of the Designated Court pending trial and

shall not leave the area without the permission of the Designated Court

The accused shall deposit his passport, if any, with the Designated Court. If he does not hold apassport, he shall file an affidavit to that effect before the Designated Court. The Designated Courtmay ascertain the correct position from the passport authorities, if it deems it necessary;

The Designated Court will be at liberty to cancel the bail, if any of these conditions is violated or acase for cancellation of bail is otherwise made out.

Before granting bail, a notice shall be given to the public prosecutor and an opportunity shall begiven to him to oppose the application for release.

The Court clarified that these conditions may be relaxed in case of those under groups (C) and (D) and,for special reasons to be recorded, in the case of group (B) prisoners.

The Judges say these directions may not be applied by the Designated Court in exceptionally grave casessuch as the Bombay bomb blast case where a lengthy trial is inevitable looking to the number of accused,the number of witnesses and the nature of charges unless the court feels that the trial is being undulydelayed.

The Court made it clear that these directions were a one time measure meant only to alleviate the currentsituation.

When stringent provisions have been prescribed under an Act such as TADA for grant of bail and a


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conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of anunder-trial accused for the sake of protecting the community and the nation against terrorist and disruptiveactivities or other activities harmful to society, it is all the more necessary that investigation of such crimesis done efficiently and an adequate number of Designated Courts are set up to bring to book personsaccused of such serious crimes, the Judges opined.

They said this is the only way in which society can be protected against harmful activities. (24) Prior to thedelivery of the judgement, former Union Minister Mr Kalpanath Rai and former Bharatiya Janata Party

candidate Mr Brij Bhusan Sharma were arrested under the Act. They were later released on bail.

Judicial Response

Ironically, the first case to come up before the Supreme Court of India in 1950 was to judge the validity ofthe provisions relating to the preventive detention of the communist leader Mr A K Gopalan. The majorityof the judges in Gopalan's case confirmed the validity of the Preventive Detention Act. Article 21 of theIndian Constitution guaranteed to every person the right to life and liberty, a right which could not bedenied without violating the due procedure established by law.

In A K Gopalan's case, the Supreme Court distinguished "procedure established by law" from the "dueprocess of the law" by stating that any procedure duly enacted by the legislature would be a "procedure

established by law". This trend of the Supreme Court continues today. The Supreme Court did not changeits stand even after the Maneka Gandhi case in 1978 in which the Supreme Court held that the "procedureestablished by law" must also be just, fair, and reasonable.

Whenever these preventive detention laws have been challenged before the Supreme Court, the court hasupheld their validity despite the blatant violation of national and international human rights standards.Whether challenging the Preventive Detention Act in 1964 or the MISA in 1974 and 1975, or the NationalSecurity Act in 1982, or the Armed Forces Special Powers Act in 1983 or TADA in 1994, the SupremeCourt has consistently maintained its stand.

Independence of Judiciary

The Constitution of India provides for a judiciary independent of the executive. Efforts have been made tokeep the judiciary independent, though they have not always been successful.

The judiciary has collaborated with the executive in dealing with alleged "national security" measures.The writ petition challenging the constitutional validity of the Terrorist and Disruptive Activities(Prevention Act) and the Armed Forces Special Powers Act are two cases in point.

A reading of the judgment of the Constitutional Bench, presided over by Justice S Ratnavel Pandian inKartar Singh vs State of Punjab confirms this. In 1994 SCC (Cri. 899) (Two out of the five judges havedissented) the judges issued a decision which attempted to prove that TADA is not violating theConstitution. By upholding the constitutional validity of the Terrorist Act, the judges proceeded on theassumption that the act is more fundamental than the Constitution. They made no attempt to look into thespirit of Fundamental Rights mentioned in Part III of the Constitution. The court failed to consider thepost-Menaka Gandhi decisions of the Supreme Court and reverted to the previous status quo

jurisprudence of the 1950s which characterized the A K Gopalan case.

It is surprising that while Justice Pandian took into account the fact that terrorism all over the world wason the rise and was potential threat to society. He conveniently overlooked the fact that TADA, then inforce in 22 states was being misused or applied in a discriminatory manner. It is interesting to note that themajority judgement devotes as many as ten pages to "noticing" how terrorism in the country and on aglobal level has increased. He has quoted the Home Minister's speeches during parliamentary debates as asource of evidence that terrorism is on the rise. He built a formidable case for anti-terrorist legislation in


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all of the 22 states where TADA is applicable. The bench felt that it was its duty to keep the Terrorist Acton the statute book in defence of India rather than defending the Constitution of India.

Over a decade ago, writ petitions have been filed challenging the constitutional validity of the ArmedForces Special Powers Act, 1958 (as amended in 1972). The Armed Forces Special Powers Act empowerseven a non-commissioned officer to shoot at any suspect who may create disturbance for the security ofthe State. No prosecution of the concerned officials could take place without seeking prior permissionfrom the Union Government. The Act gives license for killings and is applicable in Jammu and Kashmir,

Punjab, north eastern Indian States of Assam, Meghalaya, Manipur, Mizoram, Nagaland, ArunachalPradesh and Tripura. By failing to hear the constitutional validity of the Act even once in the last onedecade, the impartiality of the judiciary under suspicion.

6. Freedom of Expression and Media Freedom

India has always been proud of the freedom granted to the press. It has said that Freedom of the press inIndia is a strong and vibrant example of the country's commitment to the principles of democracy andfreedom of expression. The freedom of expression, though not classified as a fundamental right, is ensuredunder Article 19(1)(a) and 19(2) of the Indian Constitution.

With violence rising across India, journalists covering religious, separatist, and ethnic conflicts oftenbecome victims in the cross-fire and victims of political violence.

Journalists in Indian work on the razor's edge. In an environment where both the state and non-stateagents are trying to control the media, journalists are often accused of giving biased coverage. Militantsand state governments regularly attack and coerce journalists in an attempt to curb press freedom.

State authorities, irrespective of the political party in power, are not beyond resurrecting forgotten laws torestrict the right to freedom of expression.

A cursory analysis of press freedom in India exposes the erosion of freedom of expression over the years.The culture of secrecy in India leads to self-censorship on the part of journalists and editors. The web of

disinformation, both intentionally and unintentionally generated by the government and the press makes itimpossible for the reader to gage the extent of repression and human rights violations.

In the late eighties, in the wake of the Bofors scandal, which led to allegations of corruption in thegovernment, Parliament tried to bridle the freedom of expression. "Restrictions through special lawspassed by state and central governments to deal with political and communal violence" has always been afeature in India.

The Defamation Bill

The attempt to restrict the exposure of the Bofors Scandal was the most serious threat to media inIndependent India. The central government tried to introduce the Defamation Bill in July 1988. Thelegislation would have sanctioned far-reaching changes to the criminal law of defamation. The DefamationBill sought, inter alia, to formulate a new offence, criminal imputation, punishable by imprisonmentcoupled with a fine. A resounding protest in the media forced the government to withdraw the bill. ThePress and Registration of Books (Amendment) Bill 1988 also met the same fate.

In 1994, a private members bill on the "right to reply" moved by Mr Vittal Gadgil, the officialspokesperson of the ruling Congress party sought to bridle media freedom. Media protest has done awaywith the bill.

Meanwhile, the ban on Indian editions of foreign newspapers and magazines continues. In 1955, on therecommendation of the First Press Commission, the government decided that "no foreign-owned


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newspaper or periodical should be published in India and that foreign newspapers and periodicals, whichdealt mainly with news and current affairs, should not be allowed to bring out Indian editions." After amuch publicized bid, TIME magazine, gave up its attempt to introduce an Indian edition of the weekly.

Among other mechanisms employed by the state to hinder the freedom of the press is the newsprintpolicy. Under this policy, imported newsprint is channelled through the State Trading Corporation of India.The government has consistently refused to let newspapers import paper.

In the last few years, the press has been caught in the cross-fire of the armed opposition groups and thegovernment forces especially in the strife-ridden states of Jammu and Kashmir, Punjab, Andhra Pradesh,and the north eastern states. The government not only censors press reports of human rights violations buthas also ransacked the offices of some newspapers, and arrested journalists under the Terrorists andDisruptive Activities (Prevention) Act. Some of the journalists have disappeared after being abducted byofficial agencies and are believed to have been extrajudicially executed. The armed opposition groupshave ordered journalists to abide by their code of conduct and to publish their warnings. The failure tomeet their demands has led to the assassination of a number of journalists.

All Srinagar-based newspapers suspended publication from 20 April 1996 for an indefinite period afterboth the government and militants imposed fresh curbs on them.

The decision to suspend publication was taken late in the evening of 19 April 1996 after a diktat from thepro-Pakistan Hizbul Mujahideen asked the editors not to publish official statements and governmentadvertisements. The diktat threatened that "stern action" would be taken against them if the restrictionwere not observed.

The militants' diktat came in reaction to a government order advising the editors in Srinagar not to publishthreats, militants' statements, interviews of terrorists or subversive material. It had said legal action wouldbe taken against the erring editors.

Under pressure from both sides, the editors of six Urdu and two English dailies at an emergency meetingdecided to suspend their publications.

At least six journalists have been killed in the violence in Kashmir during the past six years. Lassa Koul,former Director of the Srinagar Doordarshan, Mohammad Shaban Vakil, former Editor of the Al-Safa, anUrdu daily and Mushtaq Ali, ANI cameraman-cum-reporter, who died in a parcel bomb blast at the localoffice of the BBC in September 1995 were among the victims. In 1995, local newspapers stopped

publication six times.(25)

On 7 March 1996, the Delhi High Court stayed the screening of the controversial film "Bandit Queen"across the country, and rejected the Censor Board certificate awarded to the film. In a 26-page judgement,Mr Justice Anil Dev Singh observed that the film was not fit to be screened as it contained scenes

depicting nudity of woman in violation of guidelines set under the Cinematography Act. (26) The SupremeCourt in a judgement later revoked the High Court judgement.

At least 21 journalists were among over 100 people injured as police and Bharatiya Janata Party workersassaulted media persons at the rally of veteran leader Atal Behari Vajpayee in Dehra Dun on 21 March1996. The trouble started when some BJP activists entered into an argument with two journalists at thevenue and assaulted them. Their colleagues in the Press enclosure rushed to their rescue, the Uttarakhandagitationists, who had shown black flags when Mr Vajpayee arrived, went berserk and indulged in stoning.

The seriously injured journalists and 12 others were admitted to the Doon hospital here.(27)

Electronic Media

The Government of India has been contemplating legislation that would curb broadcasting of


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independently produced news and current affairs programmes. In 1994, the government had planned tointroduce the Cable Bill in Parliament. Such as bill would strangulate alternative television channels likeZee TV and Jain TV. It would also restrict independent television stations

from uplinking to satellites outside the country. Currently, the Indian Telegraph Act does not allow astation to uplink from within the country. Doordarshan is fighting a loosing battle in an effort to maintain agovernment monopoly over the news and current affairs broadcasting. In fact the government televisionstation has struck a deal with CNN, which would indicate that broadcast regulations are likely to remain

conveniently vague.

Private television producers have taken advantage of the sudden expansion of the medium to bring out anumber of new melodramatic serials, talk shows, current affairs programmes, and film music shows, allsponsored by commercial interests.

In addition to massive growth in the domestic media, the barrage of news and entertainment available onforeign satellite channels has given viewers more choice than ever before. The poor quality ofDoordarshan programming has forced the government channel to the margin. Though some unimpressiveattempts have been made to revamp its programming, Doordarshan is unable to compete with themultitude of domestic and foreign channels now available to many viewers. However, under currentregulations, Doordarshan is the only broadcaster permitted to carry live news broadcasts, a privilege the

government is not likely to relinquish. The government also screens all domestic productions beforebroadcast, and reserves the right to censor sensitive or otherwise provocative information.

7. Elections and the Right to Political Governance

The government has a federal structure, based on a bi-cameral national assembly. State assemblies governat the highest level while local governments, known as Panchayats, govern at the grass-roots. At the timeof independence India adopted the Westminster-type of government, in which the Prime Minister isselected from the majority party of the Parliament. The President carries out a largely ceremonial role.

Those who framed the Constitution, wishing to establish standards for fair and free elections, decided togive utmost importance to the Election Commission, freeing it from any kind of political interference.Article 324 (1) of the Constitution vested the Election Commission with plenary powers "forsuperintendous, direction and control of the preparation of the electoral rolls, for the control of all theelections to Parliament, the legislatures of every state, the offices of the President and Vice President heldunder the Constitution". In addition, the Representation of the Peoples Act (1950) provides for thepreparation of the electoral rolls and registration of voters. Article 325 of the Constitution provides againstdiscrimination in the electoral rolls on the grounds of religion, race, caste or sex.

The Constitution guarantees autonomous status, independent of the political executive in the functioningof the Election Commission to hold free and fair elections. The present Election Commissioner, Mr T NSeshan, has stirred several controversies about election procedure, and election-day crookedness, which

the previous election commissioners preferred to ignore. The Election Commission itself had become aweak institution as ruling political parties nibbled away at its independence. Mr T N Seshan attempted toimplement a code of conduct for political parties and for candidates participating in the elections. Thoughhe has clamped down on electoral bribes and favors, this rule has been brazenly flouted by every party inpower.

The Parliamentary Elections for the IndianLok Sabha (lower house of the Indian Parliament) were held inIndia from 27 April to 8 May 1996 with the exception of Jammu and Kashmir. The Election was relativelyfree and fair except for some political killings in Bihar.

However, the elections in the Kashmir valley from 23 May to 30 May 1996 have violated each and every


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established and universally recognized norm of holding free and fair elections. The security forcesthreatened and forced the voters to cast their votes. A SAHRDC representative was present in Kashmirduring the elections. The elections in Jammu and Kashmir have certainly exposed the bias of the ElectionCommission of India.

On the 31 May 1996, the South Asia Human Rights Documentation Centre (SAHRDC) expressed concernto the National Human Rights Commission in New Delhi about the arrest and unlawful detention of oneMr Mohammed Ramzan son of Mr Abdur Rahman Najar, aged about 22 years and one Mr Abdul Rashid,

son of Ghulam Mohamed, aged 45 years. Mr Ramzan and Mr Rashid are both carpenters by professionand are residents of the Solina Balla neighborhood on the Airport Road, Srinagar, Jammu and Kashmir.

According to SAHRDC researchers who visited the neighborhood on the morning of 31 May 1996, theinhabitants of the locality stated that both the detainees were arrested in the morning of 29 May 1996 at11 am. The arrests were effected by a group of soldiers belonging to the para-military force, the BorderSecurity Force (BSF). The BSF personnel were accompanied by personnel of the Special Task Force ofthe Jammu and Kashmir Police. According to eyewitness accounts, both detainees were dragged out oftheir respective homes, beaten and bundled into BSF vehicles and driven to the nearby Shergadi PoliceStation. There, a Sikh BSF officer who had led the arresting party beat them further. This was done in thepresence of neighbors who had gone to the police station in Shergadi to seek their release. SAHRDC madedetailed enquiries in the neighborhood and learnt that both individuals arrested, had no previous record of

arrests and were not even remotely involved with any militant or separatist activity.

SAHRDC learnt that both Mr Mohamed Ramzan and Mr Abdul Rashid were later taken to an illegaldetention center housed in a house of a Mr Bhatt, a hindu migrant, who had fled the Kashmir valley. Thehouse is situated near the D A V School in the Jawahar Nagar neighborhood of Srinagar. SAHRDCenquiries near the illegal detention center revealed that local residents had seen about 21 young men beingtaken into illegal detention center in the last few days.

Neighbors of Mr Ramzan and Mr Rashid informed SAHRDC researchers that both of them were arrestedto intimidate the neighborhood to cast their votes in the elections to the Srinagar Parliamentaryconstituency. The elections was held on the 30 May 1996. SAHRDC was witness to large scaleintimidation by personnel belonging to the Border Security Force and the Central Reserve Police Force

(CRPF). Unwilling residents were dragooned out of their homes at the crack of dawn and herded at gunpoint to polling booths. The Kashmir valley was witness to a mockery of the election process which shouldhave been democratic, but was anything but that.

8. Discrimination on the Basis of Sex, Color, Ethnic Origin, Religious or Political Belief

The most primitive idiosyncracy of the modern Indian state is the systemic mistreatment of peoplebelonging to lower castes. Scheduled Castes (SC) and Scheduled Tribes (ST) form 22.5 percent of the totalpopulation of the country. These figures omit several millions of people classified as Other BackwardClasses (OBCs), and Dalits (untouchables).

Ethnic/racial minori ties

In Article 15(4) the Constitution provides for special reservations for the advancement of (a) socially andeducationally backward classes of citizens, and (b) scheduled castes and tribes. Article 16 of theConstitution lays down that the state shall promote the educational and economic interests of the tribalpeople and protect them from special injustice and all forms of exploitation.

The rapid increase in the crimes committed against lower castes tells a different story. Members of thesecastes and tribes are subject to the most inhumane and barbaric treatment. They are disgraced, humiliatedand indiscriminately murdered. Women are paraded naked and raped, their children are abused and denied


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access to schools and health care. Their fields and property are ransacked and burnt. There are a numberof legal instruments that investigate atrocities committed against the SC/ST, the Protection Of Civil RightsAct (1955), the Scheduled Castes and Scheduled Tribes (Prevention Of Atrocities) Act (1989) and otherlegal provisions.

Socially degraded and economically impoverished, the tradition of "untouchability" sanctions widespreaddiscrimination and human rights abuses. Unlike the problem of racial discrimination, "untouchability" is aconstruction of the caste system. Birth defines membership in a particular caste, but prejudice is the factor

which maintains the social hierarchy.

Not a day passes without news of caste-related atrocities perpetrated with impunity by upper-castes.However, this represents a very small portion of the violence against lower castes. Most cases gounreported and are routinely hushed up. From the local panchayat to the district administration, lowercastes are denied their civil rights for no other reason than their social status.

Constitutional and legal safeguards for the SC/ST

Documents

Human Rights & Human Rights Instruments in India (From the SAHRDC Resource Centre)