Against this background,
this article will argue that India has failed to keep it human
rights obligation, particularly the right to freedom torture and
arbitrary arrest. In addition, various case studies have been
discussed to support the argument. Article concludes with
recommendations.
Background
Systemic
discrimination to lower caste and minorities has always been a part
of cast structure in prevailing Indian society. Due to
discrimination, disadvantaged groups failed to access their basic
human rights such as access to education, health services, safe
drinking water and housing rights. These situations are further
aggravated when the following human rights violations are committed,
namely:
-
Rights against
subjection to torture or to cruel, inhuman or degrading
treatment;
-
Right to have effective
remedy;
-
Right against arbitrary
arrest, detention or exile;
-
Right to be presumed
innocent until proven guilty:
-
Right to have a fair
public hearing in civil or criminal matters.
There have been many
documented cases of police atrocities and states inability to
protect the victims. Rather, noticeable in various cases[2],
state machinery have been complicit in alleged violations and have
found guilty of adding and abetting the criminals. In this
connection, documentation has been conducted by India (Varanasi)
based N.G.O., PVCHR[3]
(People Vigilance Commission on Human Rights) in collaboration with
National Alliance on Testimonial Therapy between 2002 to 2010. For
the purpose of the gathering concrete evidence, Testimonial method[4]
has been adopted.
Further section provides a brief overview about
the international human rights instruments India have signed and
rectified.
India human rights obligations
India have either
acceded or have rectified the following human rights treaty[5]-
-
International Covenant
on Civil and Political Right
-
International Covenant
on Economic, Social and Cultural Rights
-
International Convention
on the Elimination of All Forms of Racial Discrimination
-
Convention on the
Elimination of All Forms of Discrimination against Women
-
Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (only signatory)
In addition, India is one
of the founding signatories of Universal Declaration of Human Rights
(1948). Notable is the fact that signatory states (UN conventions)
have legal obligations to protect, promote and fulfill concerned
human rights treaties[6].
For the purpose of this study, it will be worth while to have brief
overview on the concerned rights enshrined in international human
rights instruments.
Universal Declaration of Human Rights (1948) in
article 5 stress on “No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment”. Further this
element of rights solidifies in International Covenant on Civil and
Political Rights (1976) article.7 which illustrates “No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment”’. However, Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment clearly elaborates that
“Each State Party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any
territory under its jurisdiction (art. 2(1))” Even Convention
forbids the practice of torture in every circumstance including
emergency (art.2 (2)) and no public authority can justify torture
(art. 2(3)[7].
Nonetheless, on discrimination, Universal Declaration of Human
Rights (1948) says ‘All human beings are born free and equal in
dignity and rights…” (art.1). Further, Convention on the Elimination
of All Forms of Racial Discrimination in its various articles (art.1
(2), art. 2(1(a). art.4) condemn the practice of discrimination.
However, article 15 of the Indian constitution
prohibits discrimination on grounds of religions, race, caste, sex
or place of birth. The Indian Constitution outlaws caste based
discrimination as well as practice of “untouchability”[8].
In addition, under ‘article 21’ no one shall be deprived of his life
or personal liberty.
Case Studies
Case[9]
1.
In this case, powerful local politician have used
political connection through local police in order to settle the
personal land dispute. Victim S. (district Chandoli, Utter Pradesh,
2008) have been targeted and tortured by district police. In
addition, his elder brother was killed in a fake police encounter;
his father was illegally imprisoned and tortured. However, due to
poor financial condition victim was unable to access the judicial
system which is notoriously slow in delivering the justice.
Nonetheless, victim failed to get his grievances redressed by police
or concerned authority.
This case represents police-politician nexus in
tormenting poor people for their personal gains. Interestingly,
local police in addition to dereliction of their duties become a
tool of oppression and committed the gross violations of human
rights by taking an innocent person life in fake encounter. Along
with it, victim due to his inability (financially hindrance,
mentally hardship) could not access to the justice system, let alone
the fair trail.
Human rights violated in the case-
-
Right to life (I.C.C.P.R.
art 6(1)[10]
-
Rights against
subjection torture or to cruel, inhuman or degrading
treatment; (I.C.C.P.R. art.7)
-
Right to have effective
remedy; (I.C.C.P.R. art. 2 (3.a)
-
Right against arbitrary
arrest, detention or exile; (I.C.C.P.R. art.9 (1))
-
Right to be presumed
innocent until proved guilty (I.C.C.P.R art. 14. (2)
-
Right to have a fair
public hearing in civil or criminal matters (I.C.C.P.R art. 14,
16)
-
Right of person to be
treated humanely while in detention (I.C.C.P.R. art. 10(1)
-
Right to privacy (I.C.C.P.R
art 17(1) (2)
-
Right to equality and
non-discrimination (I.C.C.P.R. art. 2(1), 26)
Case[11]
2.
This case presents a classic example of police
atrocities where Varanasi district police has fabricated a case of
burglary against lower caste (Mushahar) man Mr. A, 40. He spent four
years behind the bars without ever committing any crime. The victim,
belonged to the socially and economically disadvantaged group (Mushahar),
was arbitrarily arrested many times. He along with his father and
uncles were quite often harassed by local police. Interestingly
local police did not follow any due procedure of law while
arresting, tormenting and searching victim’s home abruptly. This
horrible incident left victims family shattered. His health gotten
worse and could not get the job due social stigma, let alone his
economic hardship. Till date (April 2012), victims failed to get any
justice.
However, notable is that fact, Varanasi police
arrested the victim on the basis of the social stereotype cast of
Mushahar community (Victim’s caste) being involved in illegal
activities. Therefore this case is also a symbolic representation of
deeply entrenched social biases prevailing in Indian society and
shows government machinery is not immune to it. Rather at many
occasions are responsible for adding and abetting the crime.
Human rights violated in the case-
-
Rights against
subjection torture or to cruel, inhuman or degrading
treatment; (I.C.C.P.R. art.7)
-
Right to have effective
remedy; (I.C.C.P.R. art. 2 (3.a)
-
Right against arbitrary
arrest, detention or exile; (I.C.C.P.R. art.9)
-
Right to be presumed
innocent until proved guilty (I.C.C.P.R art. 14.(2)
-
Right to have a fair
public hearing in civil or criminal matters (I.C.C.P.R art.
14,16)
-
Right to privacy (I.C.C.P.R
art 17(1)(2)
-
Right of person to be
treated humanely while in detention (I.C.C.P.R. art. 10(1)
-
Right to equality and
non-discrimination (I.C.C.P.R. art. 2(1), 26)
Along with above
mentioned violated rights, United Nations Rules for the Treatment of
Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules)
[12], Standard Minimum Rules for the
Treatment of Prisoners[13]
and United Nations Rules for the Protection of Juveniles Deprived of
their Liberty[14]
were disregarded by the officials. In addition, Indian government
failed to take effective legislative, administrative and judicial
steps to prevent act of torture therefore is in breach of its human
rights obligations.
Has India failed to keep its human rights
obligations?
Right to Life, liberty and security
The growing number of extra judicial killings,
rampant discrimination against vulnerable groups including
minorities and legal immunity questions whether government has
honest intention to fulfill their human rights obligations.
Custodial torture, inherent in daily police practice, still remains
a serious concern. Police practices include assaults, physical
abuses, custodial rape, psychological humiliations, as well as
deprivation of food/water/sleep and medical attention. Study shows
that every year in India, 1.8 million people are victims of police
torture[15].
According to National Human Rights Commission Annual report, from
2001-2010, 14,231 people have died in police custody, as a
consequence of torture[16].
As per Universal Periodic Review recommendation by WGHCR, Indian
government needs to expedite ratification of the Convention against
Torture (CAT) preceded by the enactment of a domestic law[17].
Obstacles to justice
The Police Act, 1861 and the Prison Act, 1894 are
two of the oldest statutes in effect. Despite countless
recommendations for their repeal and replacement with the laws, in
sync with the international human rights standards, they are still
operational[18].
Proper implementation of the many progressive laws and regulations
have been demanded in order to remove the many structural and
functional problems in the justice system. However, rights
violations by police continue to rise in 2008-9[19].
Police regularly accused of torturing, beating, abduction, deaths in
custody and extra- judicial killings in fake encounters. Police
department do not usually register case, conduct arbitrary arrests
and disregards the procedural safeguards[20].
Nonetheless, there remains a serious lack of awareness amongst
litigants on free legal aid services which often doesn’t reach the
needy.
Discrimination against disadvantage groups
(Scheduled Tribes, Scheduled Caste, and Women)
India tribal population known as Dailts, have
long been discriminated in every aspect of life. The Scheduled Caste
and Scheduled Tribes (Prevention of Atrocities Act, 1989 seeks to
proved such protection. However, weak implementation and low
conviction rates (29.32%) are disturbing as is police often refute
to register the case against Dalits[21].
Despite the overarching mandate of equality and non-discrimination
contained in the Indian Constitution and regardless of the enactment
of women specific laws, discrimination against women is systemic and
shapes all structures of the state and society[22].
Cases of domestic and sexual violence, harassment at work place,
physical and threat are on rise.
Conclusion and recommendations
The right to equality and freedom from
discrimination, torture and cruel degrading treatment and inhumane
punishment is protected by various provisions of the various
international human rights instruments including International
Covenant on Civil and Political Rights. Based on International law,
States are accountable on its failure to protect its citizen against
human rights violations particularly custodial deaths, torture in
custody and discrimination on the basis of one’s caste. This clearly
manifests the gap between prevailing international human rights law
and its implementation at domestic level.
Discussed cases established the fact
that Indian bureaucracy is not sensitive enough towards human rights
issues. In addition, deeply rooted social customs have continually
sustained and supported social biases against vulnerable groups
including highly compartmentalized and stigmatized lower class.
Though Indian government is the signatory of
many International human rights instruments but in practice blatant
violation of human rights is apparent. Rotten police system, slow
and inaccessible justice system is just a symbolic representation of
the current scenario.
In conclusion,
police system needs to be revamped. In addition, promotion of human
rights education should be a compulsory training for government
official regardless of their rank and status. Justice should be
speedy and must be accessible to disadvantaged groups. To achieve
this goal, a human rights awareness campaign could be launched in
rural areas. People can be empowered only if they know their rights.
However prevailing situation of persistent human rights violations
presents manifold challenges to Indian government to full fill its
human rights obligations. Number of progressive legal and policy
initiatives has been taken by the government. Nonetheless, the lack
of implementation continues to hinder the realization of human
rights for India’s most vulnerable.
by
Amit
Singh
Institute of
Human Rights and Peace
Mahidol Univesity, Thailand
Footnotes
[1]
Incredible India, Indian tourism promotion statement
[2]
Documented cases available on
www.detenionwatch.blogpot.com.om
[3]
www.pvchr.asia
[4]
Testimonial includes detailed information about the victim’s
experience. Such testimonies was the confirmation of torture as
actual reality and as lived experiences, to the sufferer and to the
public, Eastmond, M. (2007) ‘Stories as Lived Experience:
Narratives in Forced Migration Research’, Journal of Refugee
Studies, Vol. 20, No.2, P.258 Oxford University Press.
[5]
http://www1.umn.edu/humanrts/research/ratification-india.html
[6]
http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx
[7]
http://www2.ohchr.org/english/law/cat.htm#part1
[8]
Working group on human rights in Indian and the UN
[9]
Voice of voiceless, Sept. 2011, No.2.
[10]
http://www2.ohchr.org/english/law/ccpr.htm
[11]
Voice of voiceless, Sept 2011, No.2
[12]
Available at
http://www.un.org/documents/ga/res/45/a45r113.htm
[13]
http://www2.ohchr.org/english/law/treatmentprisoners.htm
[14]
Available at
http://www.un.org/en/ecosoc/docs/2010/res 2010-16.pdf
[15]
Human rights in India- Joint Stakeholder’s report by Working Group
on Human Rights in India and the UN (WGHCR)
[16]
National human right commission report annual report, 2001-2012 ,
India
[17]
Human rights in India- Joint Stakeholder’s report by Working Group
on Human Rights in India and the UN (WGHCR
[18]
ibid
[19]
National human right commission report annual report, 2001-2012 ,
India, p.86
[20]
Human rights in India- Joint Stakeholder’s report by Working Group
on Human Rights in India and the UN (WGHCR) p.14
[21]
Ibid, p.18
[22]
Working Group on Human Rights in India and the UN (WGHCR), under
title ‘Discrimination’
