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India
611. By letter dated 2 September 2002, the Special Rapporteur advised the Government that he had received information according to which beatings and arrests had been carried out by police forces on the tribal peoples of Nagarnar in the Indian State of Chhattisgarh between 8 March and 11 March 2002, in connection with a decision taken in May 2001 by the National Mineral Development Cooperation (NMDC) to construct a steel plant in Nagarnar. The people living in Nagarnar had reportedly claimed that the acquisition of land for the steel plant was unconstitutional, and had referred the matter to the National Commission for Scheduled Caste and Scheduled Tribes subsequent to the decision. In the meantime, on 24 October 2001, activists were said to have been arrested and the police reportedly fired at an assembly, injuring 45 persons. The National Commission reportedly ruled that the land acquisition process was unconstitutional and therefore null and void ab initio. Nevertheless, the recommendations were said to have been ignored by the State Government and the NMDC. On 8 March 2002, local authorities reportedly issued an ultimatum to the tribal peoples living in Nagarnar who had not yet accepted compensation for acquiring the land on which they were living, asking them to accept such compensation immediately. At the same time the ultimatum was issued, hundreds of policemen reportedly arrived at Nagarnar, started to indiscriminately beat people who were said to be peacefully protesting by sitting on the street and carried out a large-scale hunt for those who refused to accept financial compensation, notably in the villages of Nagarnar, Amaguda and Kasturi, allegedly breaking into the ir homes, and beating the inhabitants. 169 people were reportedly arrested. On 11 March, approximately 500 armed policemen were said to have been deployed in order to arrest the few remaining people who refused to accept the compensation cheques. Those who refused it were allegedly beaten. Around 300 people, most of whom were women, were believed to have been detained. Three women were reportedly forced to leave their newborn babies outside the prison.
612. By the same letter, the Special Rapporteur advised the Government that he had received information on the following individual cases:
613. Sushil Kumar, a 15-year old pupil at Sarvodaya Bal Vidalaya, West Vinod Nagar in Delhi, was reportedly severely beaten across his left ear by a teacher allegedly instigated by the principal of the school on 5 October 1999. The school was said to be under the jurisdiction of the Government of the National Capital Territory of Delhi. The beating allegedly resulted in internal bleeding and complete loss of hearing. The next day, his family reportedly attempted to lodge a first information report (FIR) with the police station Mandawali-Fazalpur, Delhi 92, but the inspector reportedly refused to accept it. On 10 October, the family lodged a report with 19 authorities. On 13 October, the Special Court of the Human Rights Commission allegedly ordered the Deputy Commissioner of Police (East District, Delhi) to submit to them a report on the incident. As a result, a FIR was lodged, however this was said to have contained factual mistakes and to have exhibited a favorable bias towards the teacher. The principal of the school was said to have established himself as investigating officer in the case, and no independent investigation was said to have been carried out.
614. Nazir Ahmad Bhat, a 17-year-old student, was reportedly stopped by a police constable in Sopore and taken to the Border Security Force (BSF) camp where he allegedly was placed naked into a room and burned with gunpowder. He was reportedly taken to S.M.H.S. Hospital Srinagar with about 50-60% burns. A FIR had reportedly been lodged with the police station Sopore.
615. Kaisar Ahmad Dar, a 15-year-old student, was reportedly beaten with rifle buts by a number of members of the Indian Armed Forces camped at Seer Hamdan Anantnagh, who were also said to have inserted a wooden pole into his rectum, until he lost consciousness. His sister Naza and his neighbour Abdul Rahman Khan who reportedly rushed up to him were also said to have been severely beaten. Kaisar Ahmad Dar’s bladder was perforated, and his health was said to have been seriously impaired.
616. On 6 July 2001, a contingent of 22 Restriya Rifles (RR) reportedly entered into the village Tarzoo in the Sopore District, Baramulla and fired in the air discriminately, before entering three houses and allegedly beating their inhabitants, in particular Ghulam Ahmad Rather and his wife Nissara Begum as well as Abdul Aziz Wani. The latter’s state of health was said to be critical and he was reportedly transferred to hospital.
617. Taja Begum and her son Lateef Ahmad were said to have had their house raided by soldiers of the Special Operations Group (SOG) Magam in Kawoosa in Budgam on 3 July 2001. They were reportedly separated from other inhabitants, and placed into a room where Taja Begum was said to have been forced to strip, to drink chili water, and was allegedly severely beaten. Her son was also said to have been beaten, and his legs were reportedly rolled over. They were subsequently taken away. As a result, the villagers of Kawoosa allegedly demonstrated on the Srinagar-Gulmar road to demand their immediate release. The SOG reportedly beat the demonstrators with lathis and fired in the air to disperse them. Twelve persons were allegedly injured as a result of the police action.
618. Mrs Hajra as well as her son in law, Javeed Ahmad Dar and his wife, who are residents of Munawarabad, Srinagar were reportedly arrested at their home and taken into custody by soldiers of the SOG camped at Khanyar Srinagar on 2 June 2001. Mrs Hajra was said to have had rollers rolled over her legs, causing injuries. The next morning they were reportedly released after a large number of residents protested against their arrest and detention.
619. About thirty women and eight men were reportedly detained in an army camp by personnel of the 14th Bihar Regiment stationed at Butungal in Doda for about five hours on 30 October 2000, after protesting against the arrest of Amina Bano, resident of Bihota in Doda, by the same regiment. During the detention, the women were said to have been assaulted and molested and the men were said to have been severely beaten. The villagers reportedly went to see the District Magistrate at Doda, who was said not to have initiated any proceedings.
620. Yasin Malik, the Chairman of the Jammu Kashmir Liberation Front (JKLF) and executive member of the All Parties Huriyat Conference, was reportedly arrested in Srinagar, Kashmir, on 25 March 2002, during a press conference. Although, his condition reportedly required life-sustaining anti-coagulant medications and proper monitoring by a specialist, he was reportedly beaten while in custody. In particular, it was alleged that he was subjected to blows to an ear, as a result of which, he was said to have been unable to hear through this ear. He reportedly also sustained several wounds on his legs and thighs. It was alleged that Yasin Malik subsequently went on hunger strike and as his condition deteriorated, he was transferred to a police hospital where he did not receive proper medical treatment.
621. By letter dated 2 September 2002 sent jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur advised the Government that he had received information on the following individual cases.
622. On 28 October 2001, local police reportedly opened fire on a demonstration against U.S. air strikes in Malegaon, State of Maharashtra, killing seven protestors. According to officials, the protestors began throwing stones at the police who was said to have baton-charged the crowds, and to have begun shooting. Three more people were killed the following night when protestors tried to block the main road connecting Malegaon to the capital Delhi. According to the police, they used baton charges and tear gas to disperse the crowd but when that failed, they fired at the protestors.
623. Kallu, alias Raja Ram, son of Buddhu, reportedly died on 29 October 2001, three days after he was arrested and detained at the Mariyaon police station in Lucknow, Uttar Pradesh. A sub-inspector and other officers were said to have arrested Kallu and his two brothers, Surendra Kumar and Gopal Ram, and to have transferred them to the police station. Upon their arrival there, the three brothers were allegedly beaten with sticks and rods. The Sub- inspector allegedly hung Kallu upside down and tied his hands and legs, reportedly poured water into his nose. Surendra Kumar was said to have filed a case for murder against the Sub-inspector and four other officers. The Lucknow Police chief reportedly denied any responsibility on the side of the authorities, and was believed to have insisted that Kallu had died from tuberculosis.
624. Bashir Ahmad Sofi was reportedly arrested on 25 October 2001 by members of the SOG stationed at the Air Cargo in Srinagar. Although his family was reportedly not informed about his whereabouts, they allegedly later discovered that he was detained at a police hospital in Jammu. The police was said to have transferred Bashir Ahmad Sofi to S.M.H.S. Hospital Srinagar on 16 December 2001. He was said to have had his kidneys damaged and to have sustained marks of ill-treatment all over the body. He reportedly died on 3 January 2002 as a result of his injuries.
625. Professor Davinderpal Singh Bhullar was reportedly sentenced to death on 25 August 2001, after having been tried by a designated court created under provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The death sentence was said to have been solely based on a confession extracted under duress. It was reported that he was kept in police custody until the end of March 1995 and that he had been assaulted by officers of the Punjab police, and forced to sign blank pieces of paper, under the threat that the police would otherwise kill him in a false encounter. Apart from this statement, no other corroborated evidence was said to have been presented by the prosecution. Of the 133 prosecution witnesses, none was said to have identified Professor Bhullar.
626. Muhammad Ashraf Lone, a resident of Krusan district, Kupwara was allegedly abducted by three pro-government militants from his shop. He was reportedly ill- treated by them before being handed over to the B. Coy. of 8th RR, where he was said to have been subjected to ill- treatments by a major and to have died seven days later. His relatives were reportedly initially not informed about his whereabouts. They were said to have filed a FIR with the police station at Lalpora Kupwara, and two of the pro-government militants were reportedly arrested. 627. By letter dated 17 October 2002, the Special Rapporteur reminded the Government of a number of cases transmitted in 1997, 1998, 1999, 2000 and 2001 regarding which no reply had been received.
Urgent appeals
628. On 14 January 2002, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on the right to education on behalf of 123 Muslim delegates, from various parts of the country, including Maulanan Ataur Rahman Wajdi, who were taking part in a Muslim Educational conference being organised in Surat by Tahrik-I-Ehya-e-Ummah (Movement For Reformation of the Community) on the issue of new educational policy. They were reportedly detained by the police on 27 December 2001 on the grounds that they were suspected to be members of the banned organisation Students Islamic Movement of India (SIMI). All were reportedly remanded to 14 days police custody and have allegedly been subjected to various forms of ill- treatment. In particular, it was alleged that Suhail Ismail Patel, held at Athwa Lines Police station, was severely beaten in front of his wife who was visiting him on 5 January 2002.
629. On 15 March 2002, the Special Rapporteur sent an urgent appeal in relation with an amended version of the Prevention of Terrorism Ordinance (POTO), originally approved by the Union Cabinet on 15 October 2001. The text was introduced in the Lok Sabha (the lower chamber of the Parliament) on 25 February 2002 and was initially due for discussion on 8 March or the following week. If approved, the text will then have to pass to the Rajya Sabha (the higher chamber). If approved by the Parliament, the POTO would then become an Act enforceable initially for a period of three years. Concerns have been expressed that the following provisions of the POTO may not provide sufficient safeguards as recommended under international law: (a) Section 48 (2) of the POTO provides for 90 days’ detention in custody without charge or trial by order only of a judicial magistrate. This period can be extended to 180 days on application by the Public Prosecutor to the Special Court, in order to allow the investigations to be completed. The provision for remand also includes the possibility for police to request the transfer of an accused person from judicial to police custody for a period of time for the purposes of further investigation. (b) Section 51 (4) is reported not to provide for the presence of a lawyer during the whole period of interrogation of a suspect. (c) Section 32 is said to provide for confession made to a police officer to be admissible in trial. (d) In section 32 additional provisions (sub-sections (2), (3), (4) and (5)) have reportedly been included, designed to provide safeguards for detainees against the possibility of being subjected to torture during interrogations in police custody. The Special Rapporteur welcomes that sub-section 4 requires that a person from whom a confession has been recorded should be produced before a magistrate within 48 hours of the confession having been made. This could be a safeguard to ensure that the accused is being properly treated, and also to ensure that the confession was given willingly and without duress. However, he was still concerned that 48 hours is a dangerously long period of time and that it should be further limited. A time limit should be fixed also in sub section 5, for the referral of the detainee complaining of torture to a Medical Officer. In addition, under the same sub-section 5, it is the Special Rapporteur’s view that magistrates should be obliged to ask the detainee about his treatment rather than placing the onus on the detainee to say that he or she has been tortured. The Special Rapporteur noted with concern that in sections 32 and 51, there is no apparent provision for sanctions against police where the safeguards presented above are not complied with. Section 56 provides for immunity from prosecution for ''any authority on whom powers have been conferred under this Ordinance, for anything which is in good faith done''. It is feared that this provision may effectively result in being an offer of impunity to police officers who use torture or cruel, inhuman or degrading treatment during interrogations. Fears were expressed that the term ''good faith'' in fact is extremely wide ranging and vague and it is not clear who should bear the burden of proving it. It could be claimed that even torture of an arrested person suspected of ''terrorist activities'' is an act done in good faith. It is also reported that the Government did not present the Ordinance to the National Human Rights Commission (NHRC) for comments at any stage of its preparation. The NHRC was reported to have publicly declared its opposition to the text after its publication, stating that the existing legislation, if properly implemented, is definitely sufficient to combat all kind of “terrorist activities” and that there is therefore no need for a new law.
630. On 15 July 2002, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on the right to freedom of opinion and expression and the Special Representative on human rights defenders on behalf of Partha Chettri, Maheshwar Dahal, Aditi Shah (f), all three journalists, and Moti Prasad, a student. All were Nepalese nationals in detention in India and were facing imminent deportation to Nepal where it was feared that they might be at risk of torture. Reportedly, the four were arrested by the Special Branch of the New Delhi Police on 11 July 2002, as they had reportedly been issued with “Quit India Notices”. It was believed that the four had been attending a meeting of the Akhil Bharatiya Nepali Ekta Samaj (India-Nepal People's Solidarity Organization), along with other human rights activists from India. This is a public forum which has been publicising human rights violations committed by Nepalese security forces personnel, in the context of the ongoing Maoist “People's War”. A habeas corpus petition, requiring the detainees to be brought before a judge or into court, has reportedly been filed on their behalf in the High Court in New Delhi. The High Court was said to have ordered the Home Ministry and Police Commissioner, Delhi, to stay the deportation until 15 July.
Follow-up to previously transmitted communications
631. By letter dated 5 December 2001, the Government responded to an urgent appeal sent on 25 September 2000 by the Special Rapporteur jointly with the Special Rapporteur on freedom of opinion and expression and the Chairman Rapporteur of the Working Group on arbitrary detention concerning the case of Ito Tongbam, Surjit Chonthamcha, Robin Thokchom and Khundrakpam Tomcha (E/CN.4/2001/66, para. 560). According to the Government, Ito Tongbam and Surjit Chonthamcha were arrested during an operation conducted on 10 September 2000 and handed over to Singjamei police station on the following day. The Government confirmed that the other two men were not arrested on 10 September 2000 and that Khundrakpam Tomcha was killed in the general area of Singjamei Thokchom Leikai on Imphal on the night of 11 September 2000 during an encounter with the 17 Assam Rifles Patrol. His body was handed ove r to the police and was disposed of as per the legal provisions. Robin Thokchom was detained in accordance with the law.
632. By letter dated 5 December 2001, the Government responded to the case of Kesar Singh transmitted by the Special Rapporteur on 16 August 2000 (E/CN.4/2001/66, par. 540), stating that during a search operation, he and Sarabjit Singh had been found in possession of ammunition and arrested. During the interrogation, the two accused had revealed that the recovered ammunition was to be used to commit crimes in the Chandigarh area. The case is currently under trial. The allegations of torture on grounds of human rights activities are baseless and an attempt to preempt legal action against him by the local police in the future.
633. By letter dated 6 May 2002, the Government responded to the case concerning Deshpal Singh and Gurmeet Singh included in a letter sent by the Special Rapporteur on 16 August 2000 (E/CN.4/2001/66, para. 550). The Government informed that the enquiries conducted confirmed that they were killed by a police party. A case FIR No. 9 dated 31 January 2000 was registered in Bhatinda Police Station. However, a magisterial enquiry further concluded that police action was justified and was taken as a last resort to prevent loss of life and property. A petition relating to the matter was dismissed by the Punjab and Haryana High Court. Monetary interim relief has been granted to the respective next of kin of the deceased.
634. By letter dated 5 June 2002, the Government responded to the case of Mohammad Ramzan Wani transmitted by the Special Rapporteur on 19 November 1999 (E/CN.4/2000/9, para.489), stating that he had been killed while the Special Operations Group was taking him to effect some more recoveries and came under fire of militants at Hyderpora bypass. As he had been involved in militant activities, his family was not entitled to any compensation.
635. By letter dated 5 June 2002, the Government responded to a case concerning the alleged excessive use of force by the police against Manjolai Tea Estate Workers included in a letter sent by the Special Rapporteur jointly with the Special Rapporteurs on extrajudicial, summary or arbitrary executions and on violence against women on 31 August 2001 (E/CN.4/2002/76/Add.1, para. 670). The Government informed the Special Rapporteur that a Commission of Inquiry was appointed by the Government of Tamil Nadu in order to clarify the causes and circumstances that led to use of force by the police and to casualties. On the one hand, the Commission held that the use of force to disperse the crowd at Kokkirakulam Road was warranted. On the other hand, the Commission stated that the chasing of the demonstrators in the river amounted to excessive use of force and therefore recommended the retirement of the responsible police officials. The Government subsequently decided to take disciplinary action in this regard. The Commission of Inquiry was of the view that there was no beating by police on the riverbed while the chased demonstrators were trying to swim and that the Police did not intentionally cause their death. Monetary relief was granted to the families of the deceased. Finally, the Government assured that no woman taken to Tirunelveli police station was stripped naked, beaten or verbally humiliated.
636. By letter dated 19 July 2002, the Government responded to the case concerning Jagannath Shaw included in a letter sent by the Special Rapporteur on 22 August 2001 (E/CN.4/2002/76, Add.1, para. 615). The Government informed that he was produced before the Sub-divisional Judicial Magistrate of Chandernagore on 11 December 1998, but neither he nor his lawyer made any allegation regarding assault upon him. He was kept on judicial custody until 15 December 1998, when he was released on bail. During an enquiry, the alleged victim stated that he had been assaulted while in detention at Bhadreswar police station but he was unable to identify the alleged perpetrators and could not produce any medical documents confirming the allegations. The Government also informed tha t both the then officer- in-charge of the police station and the investigating officer denied the allegations of assault and threats.
637. By letters dated 5 June 2002 and 10 October 2002 respectively, the Government transmitted information on a number of cases included in the letter sent by the Special Rapporteur jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions on 31 August 2001 (E/CN.4/2002/76/Add.1, paras. 644 to 657)
638. Concerning Safdar Ali Sheikh (ibid., para. 645). The Government explained that on 1 June 1999, Police Station Thathri received a docket from Medical Officer, Thathri to the effect that the above named person has been brought to the hospital by Capt S. Panday of the Army in an injured condition and he died la ter. Postmortem of the dead body conducted by a board of doctors and inquest proceeding were initiated. The Government indicated that, in the course of an investigation, Safdar Ali Sheikh agree to help the security forces in recovery of arms and ammunition and while he was being taken for recovery, he felt down in a 20 feet deep ditch and,and as a result, sustained critical injuries. The postmortem report and enquiries conducted by the police during the inquest have thus established that the above mentioned person died due to injuries sustained in the fall.
639. Concerning Anayat-Ullah (ibid., para. 646), the Government indicated that a case was registered at PS Doda and an investigation was set in motion. During the course of investigation, the complainant changed his statement and said that his son was killed by some unknown militants and not by the army and he also produced an affidavit in support of his statement. Finally, the Government stated that efforts to trace the accused were not successful and the investigation was hence closed as untraced.
640. Concerning Kalu Chakrabarty (ibid., para. 647), the Government informed that a case of unnatural death was registered and that an inquest was conducted by the Executive Magistrate on 4 September 1999. During the la tter, only some scratches and bruises were noticed on the body of the deceased. The Government also informed that the results of a post mortem examination conducted on 6 September 1999 attributed the cause of death to the effects of hanging.
641. Concerning Abdul Qadir Ganai (ibid., para. 655), the Government indicated that on 15 October 2000 Police Station Khag received an information that a patrolling party of the security forces was fired upon by some unknown militants near Fujipora crossing. The security forces returned fire in self defense and during the cross firing, the above mentioned person sustained bullet injuries. It was registered a case at P.S. Khag and investigations were initiated. It was confirmed that Abdul Qadir Ganai sustained his injuries during cross firing between militants and security forces.
642. Concerning Abdul Majid Khan (ibid., para. 656), the Government indicated that his mother lodged a written report stating that on 8 January 2001, the 59 Field Regiment, along with his troops, searched her house and their medical shop and later they took with them her son. The army troops assured that Abdul Malid Khan will be released the next day after questioning. A case was registered at Police Station Tangmarg which is presently under investigation.
643. By letter dated 22 October 2002, the Government provided information on Dulumaya Tamang and Sandimaya Tamang, a case included in the letter sent by the Special Rapporteur jointly with the Special Rapporteur on violence against women on 22 November 1999 (E/CN.4/2000/9, para. 509). The Government indicated that on 5 August 1997, the complainant Kamilimaya Tamang lodged a complaint at Joyrampur police post stating that on 4 August 1997 at 9:00 p.m. constables of Joyrampur police post entered in the house of the complainant and forcibly picked up her two daughters and raped them. The Government further pointed out that, on receipt of the complaint, a case was registered at Dhakukhana Police Station and investigated into. The investigating officer visited the site and recorded the statement of the witnesses. The victims were also medically examined. The girls identified two constable of 13th A.P. Battalion who were deployed at Jayrampur police post on the date of occurrence. Both accused were arrested and sent into custody and the case is under trial.
Observations
644. While the Special Rapporteur acknowledges the replies of the Government on a
number of cases sent in the past, he notes with concern that numerous individual cases
remain unaddressed since 1997. The Special Rapporteur also notes with concern that
the Government did not extend to him an invitation to visit India. He would like to
recall that a request for such a mission was initially made in 1993.
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This report has been published by Equipo Nizkor and Derechos Human Rights on August 2, 2005.