THE SOCIAL BLOG

STATE SPONSORED ARMED CONFLICT :

THE SALWA JUDUM AND THE STATE OF CHATTISGARH[1]

Joseph Stalin once said, “One death is a tragedy, a million is a statistic”. Human emotion does not seem to ponder about the deaths occurring in numbers but seems highly passionate about the death of one being. The story of the Salwa Judum in the State of Chattisgarh is no different. Every month more than 300 people die as a result of fighting between two groups and till date more than 40,000 are displaced. The idea of violations and crimes in numbers just seems to baffle us.

The ‘Salwa Judum’ in Chattisgarh is termed by the government to be an anti- maoist force formed by the common man himself. For those sitting in the seats of government power, it is an alternative to tackling the Maoists and anti- naxalite factions in the state. But there is something more to it. In December 2005, a fourteen member team from five organizations all over the country conducted an investigation and the revelations were shocking. What the Chattisgarh government calls an anti- naxalite force seems to be more of a state sponsored private army supplied with guns, ammunition and basic supplies to deal with the Maoists.[2] On the basis of the fact-finding, three facts stood out strongly, First, that the Salwa Judum is not a spontaneous people’s movement, but a state-organized anti-insurgency campaign. Second, the situation is not one where the ordinary villagers are caught between Maoist- State clashes. Rather than questioning its own nonperformance on basic development, the government has resorted to clearing villages on a large scale. Tens of thousands of people are now refugees in temporary roadside camps or living with relatives with complete disruption of their daily lives. Prospects for their return are currently dim. Third, the entire operation, instead of being a peace mission as it is claimed, has escalated violence on all sides.[3]

The Salwa Judum is a force in the State of Chattisgarh led by elitist landowners, traders and trained by State police personnel. Not only that but these personnel are paid salaries out of State funds.[4] The facts in this regard are disturbing. There are child soldiers prevalent amongst the armed people. More than 40,000 tribal people have been displaced till date and 80% of the population in DanteWara district in Chattisgarh have been victims of the clashes.

There is no doubting the fact that atrocities and human rights violations have been committed. More importantly, the problem is that it is a state sponsored armed conflict. To tackle the naxal menace, the state seems to have formed a private army and removed the burden from state forces. In most territories, civilians belonging to the Salwa Judum are seen carrying around guns and ammunition and not even a single state police group is within the area. The problem does not stop here; both the forces are known to kill civilians who should not be a part of this conflict. There is evidence of torture techniques being used, rapes and a host of other human rights violations.

Questions need to be answered. Can the state sponsor a private army to handle an internal disturbance? Can the state discharge its constitutional duty to protect, if any and hand it over to private groups? The idea of state sponsored conflicts is clearly in violation of UN principles[5] and other international obligations. Protocol II of the Fourth Geneva Convention categorically puts forward the rights of victims in non- international armed conflict. These include the provisions of basic needs, health and compensation.[6] Furthermore, without doubt, the State has a primary constitutional duty to protect its citizens from any disturbance; external or internal.[7] The maintenance of law and order in the territory of the state is a constitutional obligation that states must follow. The Supreme Court has used this explanation in the cases of terrorism as in Kartar Singh v. Union of India[8], and AN Ray C.J. in ADM Jabalpur v. Sivakant Shukla[9] used this obligation to justify the violation of rights during emergency. If such explanation has been used in these cases then certainly they are applicable in this instance too and no exceptions can be created.

The discharge of such an obligation is inherently related to the power- responsibility equation. If power is to be delegated, which in this case is to deal with naxal factions, so must responsibility and both of them can’t be separated. Not surprisingly then, no one seems to be taking responsibility for the violations and deaths of civilians in Chattisgarh while the power seems to have been conspicuously discharged and frequently used and abused.

In May, 2007, Nandini Sunder and Ramchandra Guha filed a petition before the Supreme Court challenging the Constitution of the Salwa Judum in Chattisgarh. While the case is still sub judice, I would like to put forth an observation of the Court in this regard. Initially the Bench consisting of Chief Justice KG Balakrishnan and Justice Raveendran asked counsel that when the Central Government in its assessment to control naxalites menace permitted local restraint groups to be armed, “should the court interfere in such a policy. You must understand that naxalites go on killing innocent people in villages. The police are not coming to the rescue of these people. What is wrong in arming the local people to counter the naxal menace.”[10] (Quoting the Court)

Only after the atrocities and human rights violations were bought to the notice of the Court did it issue a notice to the Government of Chattisgarh to respond it. It is interesting to note the observation of the Court in this regard. With all due respect, the Court has commented that the formation of a state sponsored army is justified to meet the end of handling the naxalites. In doing so, the Court has again given sanction to a means- end approach. That is, state action is to be held valid if it is purposeful in nature and meets a desired end. Such is the approach taken by the Court in the case of terrorism and emergency. The Naxal problem just got itself temporarily added to the list. This seems to attract Jhering’s notion of law serving as a means to an end[11]. Accordingly, in such a purposeful evaluation of law, even if it sacrifices individual liberty, it will be valid[12]. To quote from Kartar Singh’s case[13] ;

“that it has been felt that in order to combat and cope with such activities effectively, it had become necessary to take appropriate legal steps effectively and expeditiously so that the alarming increase of these activities which are a matter of serious concern, could be prevented and severely dealt with.”

With this application of this approach, the Court seems to discount the fact that rights and constitutional obligations are inalienable and cannot be discarded to meet an particular end. The point needs to be noted here that not only has the state outsourced its duty to protect its citizens but also has given them a free hand do commit human rights violations and not hold them accountable for killing people. Such state action cannot be justified at any cost. It is hoped that the Supreme Court would take note of such rights violations, disband the Salwa Judum and concentrate on the welfare of the lakhs of tribals in the State who have fallen victim to the clashes. The law has been violated and someone has to be held accountable for it and the State cannot get away with this.

[1] Aditya Swarup, B.A.L.L.B. (hons.), NALSAR University of Law, Hyderabad.

[2] The Study was conducted by People’s Union for Civil Liberties (PUCL) Chhattisgarh, People’s Union For Civil Liberties (PUCL) Jharkhand, People’s Union for Democratic Rights (PUDR) Delhi, Association for the Protection of Democratic Rights (APDR) West Bengal, and Indian Association of People’s Lawyers (IAPL). The details of the Study can be found at http://www.pucl.org/Topics/Human-rights/2006/salwa_judum.pdf (last visited 12th May, 2007).

[3] Ibid.

[4] “War in the Heart of India: An Enquiry into the ground situation in Dante Wara District, Chattisgarh”, Independent Citizen’s Initiative, 20^th July 2006.

[5] UN General Assembly Resolution 49/60 of 1995,Measures to eliminate terrorism : UN Security Council Resolution 1373/ 2001. Also to be noted is the Lockerbie Case (UK v. Libya), 1992 ICJ Rep. 3 where Libya’s sponsoring of activities was held in violation of International Law.

[6] Protocol II, Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. Though India is not a party to this Convention, it still has a customary obligation to protect such people.

[7] Article 355, Constitution of India. A reading can also be inferred from the Directive Principles of State Policy.

[8] Kartar Singh v. Union of India, (1994) 3 SCC 569.

[9] ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

[10] “Constitution of Salwa Judum Challenged”, THE HINDU, 20^th May 2007.

[11] R. Von Jhering, “Law as a Means to an End”, MDA Freeman, (ed.), Lloyd’s Introduction to Jurisprudence, 7^th Ed. 2001, p. 703.

[12] I. Jenkins, “Jhering”, (1960-61) 14 Vanderbilt L. Rev. 169.

[13] Kartar Singh v. State of Punjab, (1994) 3 SCC 596. The approach was further upheld by the Court in People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580<!–[if supportFields]&gt; TA \l "People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580" \s "People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580" \c 1 &lt;![endif]–>.

Yesterday was World Torture Day. While there is no need to explain the prevalence of torture in our country, I’d like to use this opportunity to show the attitude of the Courts towards this grave violation. This I’d do by critiquing the case of Masooda Parveen v. Union of India, the judgment which was announced in May this year.

The deceased and husband of the petitioner, Ghulam Mohi-uddin Regoo was one day taken by 17 Jat Regiment soldiers an  brutally tortured. The reason that the wife and most witnesses gave was because he had refuse to pay an extortion fee to the soldiers. The petitioner alleged that her husband was tortured to death by the army and later his body was returned in pieces to her. The explanation given by the Army was that he was leading them to a hideout which was blown up the moment he reached there with the soldiers. Surprisingly no soldier was injured by the blast and the only fatality was Ghulam’s death. Ghulam’s wife, Masooda filed a petition before the Court demanding compensation and a job on “compassionate grounds.”

The Army said that Ghulam was a militant so no ordinary law would apply to them in this regard. They went on further to say that since Ghulam was a militant, Masooda would have to suffer for her husband’s wrongdoing. The Army’s rationale was readily accepted by the Supreme Court which stated that since there is ‘no evidence to say that he was not a militant, so he is presumed one’. It indirectly stated that if the Army identifies a person as a militant he is one until proved otherwise. There was no evidence produced by the Army to support this notion and nothing on record about Ghulam’s mode of death. From what I understand, in a petition for habeas corpus, it is upon the state to show that death was incidental and it is all the more onerous on the state to show so. It further stated,

“We are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action.”

So the Court has violated the ruling in Naga People’s Movement v. Union of India, and given an upper hand to the Army to indulge in such nefarious activities. These are troubled times for the judiciary. An organ that is supposed to be a guardian of human rights and injustices disappoints us by relying on irrational convictions. The support of the Army by the judiciary is unprecedented as is evident in this case. The judicial sanction of torture in the name of national security is a pandora’s box in its true sense. Absolute power corrupts, its usage without any checks is the cornerstone of evil. This time Ghulam was picked up and killed, tomorrow its going to be someone else. The matter could have also been simply resolved by given compensation on compassionate grounds and not accepting guilt as asked for by Masooda. But the Army argued otherwise and now a bad precedent has been set. So we should now be prepared for more people to be branded as terrorists by the Army.

This case did not get the publicity that a situation like Jessica Lal got. It is a reflection of what we Indians think of such instances. ‘We don’t care is someone is blown up into pieces. We would like a rapist to get a death sentence. Kashmiris are likely to be terrorists so they deserve it.”

Such notions are bad publicity. Human rights concerns are non existent in a majority of Indians. For them, torture is good if a person is caught. But what if the person might not be a terrorist? I used to admire Dershowitz a lot. Lately he stated something to the effect that torture is good if it produced desired results (don’t know for sure). I am losing faith in the system. There is injustice everywhere. Right from my college to international issues. To what extent can one stand all this is the question? Do I just sit and watch or is there something I can do?

March 29, 2007

Dear SAARC Government Leaders:

As the leaders of the South Asian Association for Regional Cooperation (SAARC) meet in New Delhi on April 3 and 4, 2007, the discussions will inevitably focus upon economics and regional security. At SAARC meetings, human rights problems in each member country have usually been treated as an internal matter. However, it takes only a quick survey of the region to see that there are many human rights issues that would benefit from mutual engagement and agreement.

Apart from other serious human rights problems, Afghanistan, Pakistan, India and Sri Lanka are also dealing with situations related to armed conflicts and insurgencies. Nepal, with its numerous human rights problems, has only just emerged from a violent conflict that claimed over 13,000 lives, and violence continues in the south. Bangladesh has witnessed increased militancy and the caretaker government has detained tens of thousands, often ignoring basic due process, in its efforts to combat corruption and crime. Bhutan continues to discriminate against citizens of Nepali origin. In the Maldives, there are serious curbs on political freedom.

(the weilikanda massacre in srilanka)  
In Sri Lanka, the human rights situation has deteriorated drastically since major hostilities between the government and the Liberation Tigers of Tamil Eelam (LTTE) resumed in early 2006. The LTTE has been responsible for numerous political killings and indiscriminate bomb attacks, and continues to use child soldiers and forcibly recruit adults for its forces. It has prevented civilians from fleeing areas of combat in the north and east. Government security forces have increasingly violated the laws of war by engaging in indiscriminate attacks in which civilians were killed and have also been implicated in extrajudicial executions. “Disappearances” attributable to state security forces or allied armed groups have risen sharply; hundreds of alleged “disappearances” have been reported on the Jaffna peninsula over the past 15 months. More than 15,000 refugees have fled to neighboring India and over 200,000 were internally displaced by the fighting in the north and east. The government has forced displaced civilians to return to their homes in the east despite their concerns about security and access to humanitarian aid. The Karuna group, with the open support of state forces, continues to abduct and forcibly recruit boys and young men for its forces and political work. Civil society has increasingly come under attack and national institutions involved in human rights protections have been undermined.

(Nandigram)

In India, impunity laws that protect members of the security forces from prosecution continue to fuel human rights abuses in the conflict in Jammu and Kashmir and in the northeast. Security forces have been responsible for widespread abuses including torture and arbitrary detentions. Recently, in Jammu and Kashmir, police investigations revealed that some policemen, usually in joint operations with the army, were killing civilians in faked encounters, and then claiming that they were Pakistani militants. New Delhi has failed to act on the recommendations of a government-appointed committee that said the Armed Forces Special Powers Act should be repealed. Despite encouraging disaffected groups to choose dialogue and peaceful protest in the northeast or in areas where Maoist groups have begun an armed campaign, the Indian government has failed to acknowledge or address such methods; for instance, it has failed to investigate the reasonable demands of Irom Sharmila, who has been on a seven-year hunger strike to demand an end to human rights abuses by troops in Manipur. The government’s failure to implement its laws that protect vulnerable communities received international attention in Maharashtra state recently, where four members of a Dalit family were brutally murdered, but no arrests were made until there were violent protests. Hindu extremist groups continue to threaten religious minorities, tribal groups and Dalits. Indian police have used excessive force against villagers and farmers opposing development projects. Laws to protect women and children have not been effectively implemented. India has failed to adequately acknowledge and protect refugees from Burma and Bhutan, and has provided military assistance to the Burmese army, which has frequently attacked civilians and committed other atrocities in its war against ethnic insurgents.

In Pakistan there have widespread reports of arbitrary detentions and enforced disappearances. Alleged terrorism suspects are often detained without charge or tried without proper judicial process. Human Rights Watch has documented scores of arbitrary detentions, instances of torture, and “disappearances” by the security forces in Pakistan’s major cities. The government has failed to provide the civilian population in the Federally Administered Tribal Areas adequate protection from Taliban attacks after agreements ending military operations there effectively ceded power to local tribal leaders closely allied with the Taliban. Civilians have also died in counter-terrorism operations due to the security forces’ use of excessive force. While the authorities routinely misuse counter-terrorism laws to perpetuate vendettas and as an instrument of political coercion, sectarian militants continue to target the Shia Muslim minority in Pakistan and are responsible for attacks upon civilians in Indian-administered Jammu and Kashmir. Women and girls in Pakistan confront astounding levels of violence, with hundreds of women and girls murdered each year in the name of family “honor.” Journalists and human rights defenders face frequent threats and attacks from state agents and extremists. Pakistan’s judiciary remains subservient to the military. When it does attempt to act independently, the government has intervened, as it has done recently with the arbitrary removal of the Chief Justice of the Supreme Court.

In Afghanistan, more than 1,000 civilians were killed as a result of violence related to the insurgency in 2006; 15,000 families were displaced and over 200,000 children were unable to attend school. The violence prevented reconstruction and access to clean water, education, and health care. The Taliban and other anti-government forces continue to attack aid workers, government officials, teachers, students, and schools. Regional warlords implicated in war crimes, some allied with the government, continue to perpetrate serious human rights abuses throughout Afghanistan. Afghan women and girls continue to suffer from entrenched discrimination throughout the country. They have among the highest rates of illiteracy, maternal mortality, and forced marriage in the world. There are few remedies available for gender-based violence and many women and girls confront severe restrictions on their freedom of movement. Afghanistan is again on the precipice of becoming a haven for human rights abusers, criminals, and militant extremists, many of whom in the past have severely abused Afghans, particularly women and girls.

In Bangladesh security forces have long been implicated in torture and extrajudicial killings. These have continued since a state of emergency was declared on January 11, 2007. The killings have been attributed to members of the army, the police, and the Rapid Action Battalion (RAB), an elite anti-crime and anti-terrorism force. Killings in custody have been a persistent problem in Bangladesh. To date, no military personnel are known to have been held criminally responsible for any of the deaths. There have been widespread abuses reported against Hindus and Ahmadiyya Muslims. Women continue to suffer domestic violence including acid attacks, largely with no response from the state. Most recently, under the state of emergency, the military has arrested thousands of people on allegations of corruption and other crimes, but many have been denied their due process rights. Some have been tortured. There have also been attempts by the authorities to control the media, with editors being privately summoned to impose self censorship.

Bhutan has continued its discriminatory practices to enforce a distinct national identity, in line with Bhutan’s “one nation, one people” policy. These policies are perceived as a direct attack on the cultural identity of the ethnic Nepalese living in southern Bhutan. The government forcibly evicted tens of thousands of ethnic Nepalese in 1990 and 105,000 still remain in seven refugee camps in Nepal. Nearly 50,000 Bhutanese refugees live outside the camps in India and Nepal. Bhutanese Nepali speakers who managed to avoid expulsion and still live in Bhutan remain very insecure. Some have been denied citizenship cards following the latest census in 2005 and so they are now effectively stateless in their own country.

In the Maldives, citizens continue to face restrictions on political freedom. Security forces have been implicated in torture and arbitrary detention, among other abuses. There are severe limitations upon the rights to freedom of the press, assembly, association, and religion. Unequal treatment of women continues, as do restrictions on workers’ rights.

In Nepal, the November 21, 2006 agreement between Nepal’s coalition government and the Communist Party of Nepal (Maoist) ended ten years of fighting that killed an estimated 13,000 people. The deal included compliance with an armed management pact, under which each side would put away most of its weapons and restrict most troops to a few barracks, under the supervision of monitors from the United Nations. Both parties agreed to end all forms of feudalism and promote greater inclusion of marginalized groups. However, ethnic, linguistic and regional tensions continue, with increasing violence in the south where ethnic minorities are demanding equal representation in determining Nepal’s future. Women are yet to be an equal part of the peace process. Impunity remains a problem, with little urgency in investigating and prosecuting those responsible for atrocities during the conflict. The army was responsible for enforced disappearances, torture and mistreatment of detainees, while the Maoists recruited children into armed conflict and punished civilians that they deemed as insufficiently committed to their cause with executions, mock executions, cutting body parts, and severe beatings. Meanwhile, trafficking of Nepali women and children into India as domestic labor or sex workers continues, particularly because thousands remain internally displaced due to the conflict.

Human rights abuses such as those listed above are often the cause and fuel of conflict. A failure by the state to provide and protect economic, social and cultural rights and civil and political rights, including ensuring the rights of marginalized groups such as ethnic and religious minorities, can lead to discontent that eventually turns violent.

Militants and armed groups, such as Kashmiri, Maoist and northeastern militants in India, the LTTE in Sri Lanka, and Islamist groups in Pakistan and Bangladesh, often commit human rights abuses and violations of international humanitarian law, including indiscriminate bomb attacks, extortion, killings and abductions. Security forces deployed by the state for counter insurgency operations, unless properly checked, have in turn become responsible for abuses including torture, extrajudicial killings, arbitrary detentions and enforced disappearances.

Regional security and economic progress cannot be achieved unless every citizen is provided with a secure environment to enjoy their civil, political, economic, social and cultural rights. This is especially true for groups historically discriminated against, like women and children. Half of the world’s poor live in this region. Policies and laws to help them will be useless unless effectively implemented.

SAARC represents a sixth of the world’s population and plays a significant role in global affairs. It is crucial that SAARC adopt measures that provide good governance standards for the region, including respect for fundamental human rights. If it does so, it could become a beacon for the rest of the world. Unfortunately, to date SAARC has not taken human rights seriously. Instead it has been largely a talk shop and a photo opportunity for its members’ leaders.

Human Rights Watch encourages SAARC members to:

• Ensure the protection of vulnerable communities including religious and ethnic minorities, Dalits and tribal groups. Governments should repeal all laws that lead to discrimination against minorities such as citizens of Nepali origin in Bhutan, Tamils in Sri Lanka or the Ahmaddiyas and Hindus of Bangladesh. Instead, laws designed to protect these groups should be properly implemented, such as in the case of Muslims, Christians, tribal groups and Dalits in India.  
• End specific legal, cultural, or religious practices by which women are systematically discriminated against, excluded from political participation and public life, segregated in their daily lives, raped in armed conflict, beaten in their homes, denied equal divorce or inheritance rights, killed for having sex, forced to marry, assaulted for not conforming to gender norms, and sold into forced labor. Arguments that sustain and excuse these human rights abuses - those of cultural norms, “appropriate” rights for women, or western imperialism - barely disguise their true meaning: that women’s lives matter less than men’s.  
• Implement laws to end human rights abuses against children including the use of children as soldiers; the worst forms of child labor; torture of children by police; police violence against street children; conditions in correctional institutions and orphanages; corporal punishment in schools; mistreatment of refugee and migrant children; trafficking of children for labor and prostitution; discrimination in education because of race, gender, sexual orientation, or HIV/AIDS; and physical and sexual violence against girls and boys.  
• Build strong international human rights norms and institutions to create a successful, rights-respecting counter-terrorism policy. Protection of human rights should be treated as an essential tool in the fight against terrorism, not as an obstacle.  
• End state participation in enforced disappearances, torture, arbitrary arrest and detention, and extrajudicial executions, which are often masked as armed encounters.  
• Prosecute and punish those responsible for human rights abuses, including persons implicated as a matter of command responsibility when superiors knew or should have known of ongoing crimes but failed to take action. These include high-ranking and powerful individuals, including those holding government positions.  
• Stop supplying weapons to governments likely to use them to commit violations of international human rights and humanitarian law. India supplies weapons to Burma, and Pakistan has provided weapons to Sri Lanka. SAARC member states , have also provided weapons to abusive opposition groups.  
• Tie military aid to fellow SAARC members and other countries to strict human rights compliance.  
• Prohibit the use, production, and trade of antipersonnel landmines and cluster munitions that cause unacceptable harm to civilians.  
• Adopt multilateral labor agreements to protect workers from Bangladesh, Pakistan, Sri Lanka, Nepal, and India who migrate to the Middle East and Asia. These workers, especially those in construction and domestic service, regularly suffer unpaid wages, confiscation of their passports, hazardous working conditions, and sometimes physical abuse. High recruitment fees and deception during recruitment have led many workers to be trapped in situations amounting to debt bondage and human trafficking. Labor-sending governments should regulate and monitor labor recruitment agencies by placing caps on recruitment fees, providing clear information in enforceable employment contracts, and strengthening support services in embassies abroad for abused workers.  
• Provide proper protection and access to humanitarian assistance for refugees and internally displaced persons. No one should be returned to a place where their life or freedom would be threatened. The groups at risk today in the SAARC region include Afghan refugees in Pakistan, Rohingyas in Bangladesh, Burmese and Sri Lankan refugees in India, and Tibetan and Bhutanese refugees in Nepal. The internally displaced include tens of thousands who fled from armed conflicts in Nepal, India, Sri Lanka and Pakistan as well as those displaced due to natural disasters such as the Indian Ocean tsunami and the Kashmir earthquake.

We look forward to discussing these issues with each of you in both a bilateral and multilateral context.

Thank you for your consideration.

Yours sincerely,

Brad Adams

Executive Director

Asia division

UN independent expert on extrajudicial killings urges action on reported incidents

28 March 2007 – A United Nations independent human rights expert on extrajudicial killings today called for action in response to reported incidents in the United States, Iran, the Russian Federation, Bangladesh, Nigeria and Indonesia.

“In recent years the United States has consistently argued that the UN Human Rights Council, and all other international human rights accountability mechanisms, have no legitimate role to play when individuals are intentionally killed, so long as it is claimed that the actions were part of the ‘war on terror,’” said Philip Alston, the Special Rapporteur on extrajudicial, summary or arbitrary executions.

“While this argument is convenient because it enables the US to effectively exempt itself from scrutiny, if accepted it would constitute a huge step backwards in the struggle to promote human rights.”

In a separate statement, he urged Iran to stop executing juvenile offenders, calling the practice “unacceptable.”

“It is time for Iran to demonstrate that its commitment to international law involves concrete action, not just empty words,” said Mr. Alston, calling on the country’s Government to “immediately commute all death sentences imposed for crimes individuals committed before the age of 18.”

In a statement directed at the Russian Federation, he called for an end to extrajudicial killings of journalists. “Murders are always tragic, but when journalists are being murdered to cover up human rights abuses, the stakes for the society are even higher than usual,” he said.

“The Government of Russia must bring to an end what appears to be a consistent pattern of failing to prosecute those responsible for these murders and of failing to take the measures required to prevent furthers assassinations of journalists.”

Egypt must instruct its police to stop using firearms to disperse crowds, he said in another statement. “Even if a country makes some demonstrations illegal, and even if the demonstrators ignore the law, that does not mean that the police are allowed to shoot at the demonstrators.”

In a report including several allegations he has received regarding Egypt, Mr. Alston expressed his appreciation for the detailed responses that the Government had made to his requests for further information regarding these incidents, but noted that his dialogue with the Government had revealed serious legal misunderstandings that required immediate reforms.

Bangladesh must stop the Rapid Action Battalion and other elite security forces “from using murder as a policing technique,” said the expert in a separate statement.

His report covers a series of allegations he has received regarding Bangladesh, “none of which were effectively addressed by the Government.”

He also called on Nigeria to “make good on its commitment to end extrajudicial executions by the police” but added in a separate statement that “unfortunately, it seems like business as usual with the Nigerian police continuing to get away with murder.”

In a letter to Nigeria Mr. Alston called for the Government “to underscore the fact that the imposition of the death penalty for offences such as sodomy is unconstitutional.” But his report indicated that the Government ignored his letter.

Indonesia should investigate all those implicated by the report into the murder of Munir Said Thalib, a leading human rights activist, said the expert said in another statement.

In a letter earlier this year, the Government responded to Mr. Alston’s inquiries in a manner that he characterized as “cooperative but incomplete.”

Also today, the Geneva-based UN Human Rights Council heard reports from the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Representative of the Secretary-General on the situation of human rights defenders.

————————————-

HIGH TIME THE INTERNATIONAL COMMUNITY ADDRESSES ISSUES LIKE NANDIGRAM.

Chapter III - POLICE AND THE LAW

The above chapters are indirectly related to a greater issue of accountability and responsibility on the part of the government on the part of the government to educate the citizens about the law and not abuse the powers in the hands of the state machinery. In this chapter we shall discuss mainly about the attitude of the police towards the poor and the treatment meted out to them. This will later lead us to conclude the need for checks in the police functioning today.

3.1 The fallacy of Ignorantia Juris Non Excusat

Legal systems all over have been based upon the common maxim of ignorantia juris non excusat, that is ‘ignorance of the law is no excuse’. The principle, the had first originated in the Code of Justinian [1], was used as a defence by the government when people said they did not know about the law. The reason then was that it was simple to understand and not complex in nature.

With time, law became more and more complex in nature and so did the excuse of the government for using this principle. Now, they said, “it was a small evil in exchange for a greater good”[2]. If this was removed then everyone would claim that they did not know the law which would then become difficult to prove. What it then did become was a manner by which the government shed the responsibility for educating its citizens about the law. It removes any trace of accountability on the part of the government and places the burden on the common man to know the law.

In the past few decades, some Courts in the world are trying to do away with this maxim in the area of ‘rights education’. They seek to place the burden on the government to educate the citizen[3]. It all started in 1966 with Miranda[4] and similar instances in the United Kingdom[5] and other European nations[6]. In the USA, this issue was recently upheld in Dickerson v. United States[7]. As regards to the situation in India, the Courts have always sought to apply and interpret the maxim in its strict sen.[8]se without any exceptions In this way, DK Basu was a relief to the poor. But the fact remains that the government does not have any responsibility to educate the poor in this country. All mechanisms of accountability seem a distant dream.

I argue that the rights of the poor would be secured only if the government takes upon itself the responsibility to protect them. Such responsibility does not seem to exist in India. It is then imperative that if this country must develop, the rights of a 250 million people must be secured.

3.2 The Police and Implementation of the Law

I would like to approach the aspect of police accountability by showing how the police is presently implementing the law. The data presented is based on the research that was conducted by myself in the month of December in the city of Mumbai.

The DK Basu judgment says that the rights laid down in para 36 must be placed in a conspicuous place in every police station. In the eight police stations that were visited, only three of them were in a place that could be well seen. The rest five were in the office of the inspector which is visited only by a few of them. These five police stations were in the slum areas of Mumbai that included the Dharavi, Sion and Chembur areas of Mumbai. On questioning a few police constables, I learnt they knew about the procedure and the way it was to be followed.

On enquiring as to how many cases are reported to the Control room within 24 hrs, three persons reported by myself were not known to the control room for the next 48 hours. One of them by the name of Walekar was placed in a police locker for 2 days and there was no record of his arrest.

3.3 Police Brutalities in India

The issue of police brutalities and custodial violence and no surprise in this system of ours. According to the statistics of the National Human Rights Commission alone, in the year 1999, there were 193 custodial deaths in the country.[9] Every day violence in the police station is not a new phenomenon. Sadly, there is no law in the Country to protect the citizens from torture specifically. Such brutalities have been read into the normal sections of assault[10] and hurt[11] in the Indian Penal Code. The Courts have also at numerous instances discussed the issue of custodial violence [12] and condemned the same.

In the Survey conducted by the researcher, around 41 % of the people interviewed had been subjected to some form of violence or the other at the hands of the police. Some of them also included lathi beatings and slaps. One of them, a juvenile, was even paraded around the police station in his underwear. If this is just an analysis of 25 odd people in the city of Mumbai, we can only imagine what would be happenning in the whole of India. I again get down to the same argument that there is a great need for police accountability in the country to stop such acts of violence against the poor and illiterate.

3.4 Reforms in the Police Act

We today have a 146 year old Police Act[13]. The first comprehensive review at the national level of the police system after independence was undertaken in 1977, when the Government of India appointed the National Police Commission. In its first report[14], the Commission dealt with the modalities for inquiry into complaints of police misconduct in a manner which will carry credibility and satisfaction to the public regarding their fairness and impartiality and rectification of serious deficiencies in the system. Various Committees that have been set up after this period like the Dharma Vira Commission, Julio Roberto Committee, Soli Sorabjee Committee and the Padmanabiah Panel have zeroed in on the maladies of the Police Act and called for drastic changes in the functioning of the system.[15] I argue that the issue at hand is not ‘police reform’ that these committees and judgments propose but that of ‘police accountability’. Our country has not taken a serious stance on the issue of Police accountability and the status of such investigations.

In the United States of America, the rights of individuals have always received supremacy over the investigation process.[16] This is to the extent that, if the rights of arrested persons are affected, then the investigation to that extent will be declared invalid.[17] In this manner, some degree of responsibility to follow the law is placed on the Police. Similar situations must be applied in India too so that the rights of the poor are protected in this country. The accused must have full knowledge of his rights at the time of the investigation and if he is not aware of them, the state must remind him of them.