Written evidence submitted by Amnesty
International
Amnesty International is a worldwide membership
movement. Our vision is of a world in which every person enjoys
all of the human rights enshrined in the Universal Declaration
of Human Rights. We promote all human rights and undertake research
and action focussed on preventing grave abuses of the rights to
physical and mental integrity, freedom of conscience and expression
and freedom from discrimination.
Amnesty International welcomes the inquiry by
the Foreign Affairs Committee into the regional and international
role of India. We submit our views below on the human rights record
of India and make some suggestions regarding actions on the part
of the UK government.
SUMMARY
Impunity in the context of India is a serious
overriding concern for Amnesty International. It is widely acknowledged
that the criminal justice system is crippling despite the Government
of India's claims internationally that it has a strong judiciary.
Discussions and recommendations for police reform have been circulating
for the last 25 years. The Supreme Court has recently issued orders
to the state governments to implement guidelines on police reform
but many state governments have either not replied or have asserted
that these recommendations are not binding on them. Corruption,
nepotism and political interference—amongst other factors—continue
to impede the delivery of justice particularly to marginalized
groups including indigenous peoples (ie adivasis), dalits, minority
religious groups (Muslims, Christians and Sikhs). The government
continues to describe violations as aberrations (which they claim
can be dealt with by its own domestic checks and balances) rather
than admitting that there is pattern of violation.
Quasi-governmental bodies including the National
Human Rights Commission, National Commission for Women, National
Commission for Minorities, National Commission for Castes and
Tribes and National Commission for Backward Tribes continue to
lack the necessary teeth, resources and mandate to seriously address
human rights violations and to provide redress to victims of human
rights violations. The government often responds to incidents
of mass human rights by establishing Commissions of Enquiry, whose
recommendations are not binding and which often take years to
complete investigations.
In the last few months Amnesty International
has witnessed the undermining of the National Human Rights Commission
(NHRC) through the passing of various amendments.
THE NATIONAL
HUMAN RIGHTS
COMMISSION—PROTECTION
OF HUMAN
RIGHTS ACT
In August 2006 Amnesty wrote to the Government
of India outlining its concerns at the passing of various amendments
to the Protection of Human Rights Act, 1993 (PHRA) that governs
the mandate of the National Human Rights Commission. There have
been calls from national and international bodies for the strengthening
of the NHRC since the mid 1990's (the NHRC was set up in 1993).
We believe that the amendments passed in the recently passed monsoon
session of parliament have—despite claims—failed to
include the various recommendations made by civil society groups
as well as a government constituted Committee set up to the review
the PHRA.
When interacting with the NHRC (prior to the
passing of the amendments), officials from the Commission have
tried to affirm the NHRC's ability to protect human rights—despite
the shortcomings of the Act—by referring to their de facto
approach to overcome these limitations. This approach has meant
that personalities dictate the level of response from the NHRC.
Amnesty has observed that since its establishment some NHRC chairpersons
have read the Act as widely as possible, while others have—as
under the current Chair (Justice Anand)—interpreted the
Act very narrowly. This has had the effect of undermining the
protection of human rights. This was particularly evident in 2004
when the Advisory Council of Jurists (ACJ—the body of legal
experts advising the Asia Pacific Forum for National Human Rights
Institutions (APFNHRI)) suggested focusing its annual discussion
paper on torture and the role of NHRI's in combating it for the
2005 Asia Pacific meeting of National Human Rights Institutions.
The Indian NHRC responded at the consultative stage by asserting
that it should be excused from any recommendations of the ACJ
deriving from the UN Convention Against Torture and the provisions
of the Rome Statute, as India is party to neither. Such attempts
by the NHRC to withdraw from furthering the human rights agenda
is of extreme concern to Amnesty.
One positive development arising out of the
recent Bill is the amendment regarding NHRC visits to prisons.
Previously the NHRC's intention to visit had to be intimated to
the authorities. The Bill now allows for the NHRC to visit such
premises without their prior permission. However, this provision
does not extend to all places of detention (including interrogation
centres run by the army).
Some of our key concerns regarding the NHRC's
functioning and amendments:
— The NHRC cannot independently investigate
human rights abuses by the army or the paramilitary. Section 19
allows the NHRC to only seek a report from the Central Government
on allegations of human rights violations by the armed forces
(and not conduct an investigation of its own) thus confining it
to the government's version or more usually the version of events
given by the alleged perpetrators themselves. The Committee's
recommendations said that the NHRC should be able to investigate
violations by paramilitaries and not armed forces which was clearly
a compromise given the call by human rights organisations for
independent scrutiny of both. However the amendments fail to address
even investigation of excesses by paramilitaries.
— The non-inclusion of an amendment
to allow the NHRC to instigate its own independent investigations
has the effect of rendering the NHRC incapable of effectively
combating impunity for abuses committed by the armed forces, particularly
those forces operating under special legislation in areas of conflict—including
Jammu and Kashmir and the North East of India. The UN Human Rights
Committee when examining India's third periodic report on its
implementation of the ICCPR in 1997, similarly expressed its concern
about this limitation in its concluding observations:
"The Committee regrets that the National
Human Rights Commission is prevented by Clause 19 of the Protection
of Human Rights Act from investigating directly complaints of
human rights violations against the armed forces, but must request
a report from the Central Government... The Committee recommends
that these restrictions be removed."
— Amnesty is particularly concerned
that when questioned Government spokespersons have responded to
allegations of human rights violations by the army operating in
armed conflict states by referring to the presence of the NHRC
and its ability to inquire into such allegations—which is
clearly not the case.
— The Commission is not permitted to
take cognizance of complaints over a year old. This provision
is extremely problematic as many victims approach the NHRC as
a last resort, after using other mechanisms such as local courts
which may delay their approach to the NHRC to well beyond a year.
The Advisory Committee recommended that the NHRC be allowed to
inquire into any matter provided it was satisfied that there had
been sufficient reason for not filing a complaint within the said
period. This has not been taken on board.
— Amnesty has noted an amendment to
the Act which empowers the Chairperson of the NHRC—in addition
to the Commission (understood by Amnesty as members of the Commission)—to
delegate powers and functions to the Secretary General of the
NHRC. Amnesty understands that a retired civil servant or police
officer is often directly appointed by the government to the post
of Secretary General, thereby undermining the independence of
the Commission.
— 14 out of 25 State Human Rights Commissions
have been set up so far. Their performance varies enormously and
there are many concerns about their ad-hoc functioning (lack of
a standard investigative procedure being one of them) as well
as the lack of resources including investigative staff, the lack
of human rights expertise amongst members, lack of financial independence,
the lack of responsiveness to individual complaints and the failure
of recommendations to be pursued or implemented.
PUNJAB
The NHRC's handling of impunity issues in Punjab
is of particular concern to Amnesty. We strongly believe that
instead of investigating the central issue—responsibility
for unlawful deprivation of life—the NHRC has operated within
self-imposed limitations, confining itself to matters of financial
compensation. Amnesty remains extremely disappointed and concerned
over the fact that the NHRC despite having had the opportunity
over the last 10 years to address the genuine concerns of the
victims have instead worked within narrow limits with regard to
the area and scope of inquiry. It further sends out the wrong
message to perpetrators of human rights violations and strengthens
impunity.
A brief chronology of the key dates regarding
the handling of the matter by the NHRC are listed below. However
it is important to highlight that without domestic human rights
organisations incessantly advocating the cause of the victims
it is very unlikely that the NHRC decision would have even reached
this far.
In April 1995 the Committee for Information
and Initiative on Punjab, a non governmental human rights organisation
petitioned the Supreme Court for an investigation into allegations
that Punjab Police had carried out secret cremations of hundreds
of "unclaimed" bodies in the crematoria of Amritsar
district. It was alleged that some of the bodies were those of
people who had "disappeared" in police custody and had
been extra-judicially executed during the period of militancy
experienced in the state. The Central Bureau of Investigation
(CBI) was entrusted by the Supreme Court to carry out investigations
and having analyzed the evidence available in three crematoria
in Amritsar found that 2,097 bodies had been illegally cremated
by police, 585 of which were fully identified, 274 were partially
identified and 1,238 were unidentifiable. The CBI indicated that
it was ready to initiate prosecutions against police officials
in several cases but did not make it findings public, arguing
that disclosure could hamper further investigations and would
cause embarrassment.
In December 1996 the Supreme Court ordered the
National Human Rights Commission to examine the CBI's findings
in accordance with the law" and "determine all the issues".
The Supreme Court order requires the NHRC to:
— comprehensively investigate a suspected
pattern of human rights violations in Punjab;
— after detailed inquiry, make recommendations
in relation to the perpetrators' criminal responsibility or liability;
and
— provide for appropriate compensation
for the surviving family members of the victims.
In February 1999, Amnesty wrote to the NHRC
calling for an urgent review of its decision on 13 January 1999,
to limit the investigation to cremations at three sites in Amritsar
district and thereby overlooking the fundamental issues of a pattern
of enforced disappearances and extrajudicial executions throughout
Punjab.
On 18 August 2000, the NHRC agreed with the
Punjab government's proposal to offer compensation of 100,000
Indian Rupees to the families of 18 victims, without investigating
the issue of responsibility for unlawful deprivation of life.
The eighteen families rejected this offer. In November 2004 the
NHRC announced a total award of 250,000 Indian Rupees each to
109 families in whose cases police admitted custody of next of
kin, but again no individual responsibility was determined and
no inquiry into facts of the cases was conducted and has in fact
been deliberately avoided.
According to latest reports the NHRC now wants
to close the case after determining the compensation. Amnesty
is extremely disappointed at this outcome. The NHRC has sent a
clear message in its handling of the case and to victims of human
rights violations—it will not substantively deal with the
issues related to impunity and that justice will only be dispensed
in the form of monetary compensation.
SECURITY LEGISLATION
Amnesty International has for years expressed
its concern at the use of draconian security legislation in India—enacted
at both the central as well as state level—which has invariably
and disproportionately been used against peaceful political opponents,
human rights defenders, minorities and marginalized sections of
Indian society.
Amnesty International acknowledges that every
government has a right and duty to take measures to ensure the
security of its citizens. However, security concerns (more recently
framed within the US led "war on terror" discourse)
should never jeopardize people's right to exercise fundamental
human rights as established in international standards including
the International Covenant on Civil and Political Rights to which
India is a state party as well as the range of non-treaty human
rights standards which together constitute an international framework
for human rights protection.
Terrorist and Disruptive Activities (Prevention)
Act
In 1987 the Government enacted TADA—the
Terrorist and Disruptive Activities (Prevention) Act. The Act
was allowed to lapse in May 1995. During those eight years,
thousands of people were arbitrarily arrested, detained and tortured
under it. TADA was used to crack down on political opponents and
human rights defenders. It was finally allowed to lapse, following
widespread allegations of misuse and harsh criticism about its
misuse and harsh criticism from national and international human
rights organisations, United Nations (UN) human rights mechanisms,
the National Human Rights Commission (NHRC), lawyers and even
government ministers and officials themselves. However Amnesty
still continues to receive reports of individuals being extradited
or returned to India and then being arrested under TADA charges
or individuals having TADA charges retrogressively applied against
them.
Prevention of Terrorism Act (POTA)
The Prevention of Terrorism Ordinance (POTO)
was enacted by the Bharatiya Janata Party (BJP) led National Democratic
Alliance in October 2001—following the attacks in New York
and Washington DC in September 2001. The Ordinance faced stiff
opposition from human rights activists as well as political groups
as it was never introduced into parliament for discussion. The
Act gave the police a whole set of sweeping powers of arrest and
detention—in effect reinstating a modified form of TADA.
For example, it included provisions undermining the right to be
free from arbitrary detention, torture and ill treatment and the
right to be free from arbitrary detention.
In March 2003 the BJP led government announced
that a Review Committee was being set up and that cases which
were registered under the Act would be reviewed by a central government
committee. The Committee was due to finish its review of cases
by September 2005. However the review process itself has come
under question with several state governments questioning its
authority and asserted that the state prosecutorial authorities
have the power to reject the committee's findings.
The Act was nevertheless repealed by the Congress
led UPA government in September 2004 after acknowledging that
it was "grossly misused" and that there had been "grave
abuses under the act" during the three years it was in force.
Examples of its misuse include various reliable reports about
the discriminate use of POTA against the Muslim minority in Gujarat.
There are a number of reports that suggest that 200 individuals
are detained under the Act as against the government's official
figure of 87.
Despite its repeal individuals are still being
held under the Act. There is conflicting information about the
numbers of people who are still being held under the Act. According
to the government despite the repeal of the Act, 135 such persons
are still in jail. Human rights activists insist that at least
400 persons remain under detention. Amnesty can verify that a
minimum of 265 persons remain under detention, either without
a trial or at pre-trial stage.
Despite the repeal Amnesty is concerned that
the some of the problematic provisions of the Act have been incorporated
into the Unlawful Activities (Prevention) Act.
Armed Forces Special Powers Act
AI has been concerned about human rights violations
by security forces operating in states of the North-East as well
as human rights abuses by the numerous armed opposition groups
there. Human rights violations include torture (including rape),
extra-judicial execution, disappearances and illegal detention.
AI additionally has concerns about special legislation under which
security forces operate in the region, notably the Armed Forces
(Special Powers) Act.
The 1958 Armed Forces Special Powers Act (AFSPA)
remained in force in "disturbed areas" including large
parts of the north-east. The Act is also in force in Jammu and
Kashmir but the main piece of legislation used in Jammu and Kashmir
is the Public Safety Act (on which Amnesty has also published
a number of concerns).
A number of provisions contained in the AFSPA
breach international standards. The definition of disturbed areas
allows for the suspension of an array of rights guaranteed under
the Indian Constitution. For example, the Act empowers the security
forces to arrest people without a warrant and to shoot to kill
in circumstances even where their lives are not in danger. It
also grants members of the armed forces immunity from prosecution
for acts carried out under its jurisdiction.
On 2 November 2004 an expert group was formed
to look into the "legal, constitutional and moral" aspects
of the Armed Forces Special Powers Act (AFSPA). The Committee
submitted their report in June 2005 with a unanimous recommendation
of repealing the Act. The recommendation has been made on the
basis that the Unlawful Activities (Prevention) Act, 2004, which
is also in force in the area, is adequately equipped to tackle
militancy and insurgency in the North East. The next few months
remain crucial in deciding the future of the Act.
Various army personnel have argued in defence
of the Act and have pointed to the list of do's and don'ts for
security forces which were issued by the Supreme Court in 1997
following the filing of several petitions by human rights groups
who challenged the constitutionality of the AFSPA. Amnesty believes
that the list of do's and don'ts have proved inadequate, ineffective
and counter productive in dealing with excesses by security forces
and in themselves fall short of international standards including
provisions of treaties to which India is a state party.
It should be noted that both the Public Safety
Act (implemented in Jammu and Kashmir) and the Armed Forces Special
Powers Act provide immunity for human rights violations, as the
acts require that:
"No prosecution, suit or other legal proceedings
shall be instituted, except with previous sanction of the Central
government, against any person in respect of anything done or
purported to be done in exercise of the powers conferred by this
Act."
There is also a range of state level legislation
which has been enacted in various states in India and contain
a whole set of draconian provisions including the Maharashtra
Control of Organised Crime Act, the Chattisgarh Public Safety
Act amongst others.
DEATH PENALTY
The EU, as a region, has led the world in clearly
denouncing the death penalty and setting out that the execution
of the death penalty is a violation of the fundamental right to
life. India is among the 76 countries that retain death penalty.
The last execution in India was carried out
in August 2004. The previous executions were carried out in
1995. Seventy-seven people were sentenced to death last year.
Amnesty is aware that hundreds of prisoners have been on death
row for years—their exact number is not known.
Information relating to current and past death
sentences and executions in India continues to remain sketchy.
The Government of India does not publish the number of death sentences
given and executions carried out. Reports in the Indian media
speak, in all, of 55 executions since independence. However, an
Indian human rights group, the People's Union for Democratic Rights
(PUDR), challenged this figure, when they discovered that hidden
in an appendix of a 1967 Law Commission report figures on executions
between 1953 and 1963 had in fact been included. The report cites
that 1,422 people were executed between 1953 and 1963 alone. This
inclusion therefore challenges the government's claim that it
does not collect such information. The calls for transparency
are in line with European Guidelines as well as recent recommendations
made by the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions at a 2005 Commission of Human Rights meeting. He has
clearly outlined that secrecy regarding the number of executions,
or the numbers or identities of those detained on death row is
incompatible with international human rights standards and is
in itself a human rights violation. He has added that transparency
is required to ensure safeguards which might operate to prevent
errors or abuses and to ensure fair and just procedures at all
stages—in the context of India this is particularly important
given that the Government maintain that it the death penalty is
applied in the "rarest of rare" cases. Amnesty International
India will be publishing a report early next year that will clearly
demonstrate how the "rarest of rare" provision is arbitrarily
applied, inherently discriminatory, and that similar crimes can
receive very different sentences.
Amnesty is concerned that given the current
political climate in India the demand for a hard hitting response
(ie death sentences) to crime including rape, murder of minors
and particularly "terrorist" violence is only growing.
Amnesty understands that the Government of India may be feeling
politically compelled to deal with "terrorist" crime
through harsh measures (ie sentencing those convicted of such
crimes to death) to demonstrate that they view the security of
its citizens as of primary importance.
A number of death sentences are expected to
be passed to those who have been recently convicted of involvement
in the 1993 serial Mumbai blasts.
India is due to witness its second execution
since 1996. Mohammad Afzal—an individual convicted of
conspiring to attack the Indian Parliament while in session in
December 2001, waging war against India and murder—was due
to be executed on 20 October 2006. The execution has now been
deferred while the President and the Ministry of Home Affairs
review the mercy petition.
Amnesty International urge the UK government
to:
— call on the government of India to
institute an immediate moratorium on executions; and
— call on the government of India to
publish accurate and up to date death penalty statistics.
INDIA AND
INTERNATIONAL MECHANISMS
India has been elected to the newly formed UN
Human Rights Council and had strongly supported the candidacy
of Mr Shashi Tharoor for the post of UN Secretary General. However,
India has a poor record of openness to international scrutiny
on human rights, including cooperation with UN Special Procedures.
India has not ratified two of the seven main human rights treaties,
and has yet to sign key optional protocols:
It has signed but not ratified the UN Convention
against Torture and Other Forms of Cruel, Inhuman and Degrading
Treatment or Punishment.
It has not ratified the Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families.
It has not ratified the Rome Statute of the
International Criminal Court.
The Government of India are also overdue in
their reporting to several treaties bodies:
International Covenant on Civil and Political
Rights: India submitted its third periodic report to the Human
Rights Committee which monitors the implementation of the International
Covenant on Civil and Political Rights (ICCPR) in 1995 and the
report was considered in 1997. India's fourth periodic review
report was due in 2001. This has still not been submitted.
They have not signed the Optional Protocol of the ICCPR and have
not signed the Second Optional Protocol aiming for the abolition
of the Death Penalty
India has still to submit four periodic reports
(the earliest of these reports was due in 1996) to the Committee
monitoring the implementation of the Covenant on Social, Economic
and Cultural Rights.
The Government of India has just submitted its
report to the Committee monitoring the implementation of the Convention
on the Elimination of Discrimination Against Women (CEDAW). The
report is due to be heard in January 2007.
The Government of India signed the Convention
Against Torture in 1997. Nine years later the CAT still requires
ratification. In discussions with the Government of India, the
Law Commission and the NHRC officials informed Amnesty that the
main stumbling block to ratifying CAT was centred round the need
to enable domestic legislation. There have been rumours that the
Government has been looking to ratify the Convention by the end
of this year.
Entry to India for international monitors: Amnesty
believes that the Government of India should be pressed to grant
access to the UN Special Rapporteur on Torture (torture is endemic
in India), the Special Rapporteur on Extrajudicial Executions
(commonly known as encounter deaths in India) and the Working
Group on Enforced or Involuntary Disappearances as a matter of
priority. While the Special Rapporteur on Violence against Women
visited India in 2000, she was mandated to look only at the issue
of trafficking of women. Amnesty is concerned that issues of violence
against women in India are far broader than the issue of trafficking
and that the Government of India may argue that because the Special
Rapporteur has visited this time, there is no need to invite her
to assess the broader situation for some time. India remains reluctant
to allow international monitors including Amnesty International
to conduct research missions.
The UK government should:
— urge the government of India to ratify
immediately the Convention Against Torture; and
— use its influence as a member of
the UN Human Rights Council to press the government of India to
allow access to all UN Special Rapporteurs.
JAMMU AND
KASHMIR
During its election campaigning in 2002 the
People's Democratic Party Common Minimum Programme pledged to
protect the human rights of its citizens. Since it was voted in,
there have been a number of statements that have gone some way
in demonstrating that there will be no tolerance for human rights
violations in the state. In May 2006 AI noted Prime Minister Manmohan
Singh's statement to the army operating in Jammu and Kashmir that,
"It is possible and desirable that you should be firm but
humane; effective and efficient; in control but unobtrusive. You
must be steadfast in your commitment to human rights and there
should be zero tolerance for custodial deaths."
Whilst these statements have gone some way in
contributing to some improvements on the ground, the organisation
continues to receive consistent reports of grave human rights
abuses being perpetrated by both security forces and armed opposition
groups in Jammu and Kashmir.
Members of the security forces and the police
allegedly regularly commit torture, including rape, deaths in
custody, "disappearances", and extrajudicial executions.
Amnesty has further noted an ostensible increase in attacks based
on identity—with Hindus and Sikhs being reportedly killed
by extremist Islamic militants (including most recently in May
2006 when 35 Hindus were killed in the remote hamlets of Doda
and Udhampur districts).
On 30 August 2006—the International Day
of the Disappeared—the Research Section of the Kashmir Media
Service issued a report in which they asserted that over 10,000
people have disappeared in custody during the last 17 years. The
Association for the Parents of the Disappeared People have reported
that authorities have still failed to provide information to the
victim's families about their whereabouts. The Association for
the Parents of the Disappeared People documented 164 enforced
disappearances between 2 November 2002 and 2 November 2005.
There are also a number of outstanding concerns
about the functioning of the State Human Rights Commission. In
2002, Amnesty International understands that in an amendment to
the Jammu and Kashmir Protection of Human Rights Act (which provides
the mandate for the SHRC) the SHRC was stripped of its ability
to appoint its technical staff and transferred this power to the
government, thereby seriously undermining the independence of
the SHRC.
Amnesty International is further concerned at
the statements made by the Chairperson of the State Human Rights
Commission (SHRC) who resigned from the SHRC in August 2006 citing
"non seriousness" of the state government towards dealing
with human rights violations. As long as ago as November 2005
the Chair has asserted that insofar as the implementation of the
SHRC's recommendations were concerned, he was effectively "whipping
a dead horse". The SHRC J&K annual report of 2004-05
has also highlighted the "hijacking" of its financial
independence, which means that it operates like "any other
government department" leaving it completely at the "mercy
of the government".
Special security legislation, such as the Jammu
and Kashmir Public Safety Act, the National Security Act and the
Armed Forces [Special Powers] Act have provisions which fall short
of international standards but even these are not adhered to.
There is a concern that the government uses such legislation punitively.
In particular Amnesty is concerned at provisions both within the
Criminal Procedure Code of 1973 as well as the AFSPA and Public
Safety Act which provide de jure impunity for human rights violations.
Provisions contained within these Acts mean that members of the
armed forces cannot be arrested for "anything done or purported
to be done by him in the discharge of his official duties"
and can only be done "except after obtaining the consent
of the Central Government".
Widespread impunity both encourages and facilitates
further human rights abuses across the state. Of the dozens of
reported violations only a handful of high profile cases have
been investigated and, to Amnesty International's knowledge, rarely
have these resulted in the perpetrators being prosecuted. Victims
of human rights abuses or their relatives who try to pursue judicial
redress may face persistent obstructions and delays. Repeated
expressions of concern by the organisation about the high incidence
of human rights abuses and impunity in the state have been met
with silence from the authorities.
Amnesty International is closely monitoring
talks between India and Pakistan and the ongoing dialogue with
Kashmiri groups. The organisation does not take a position on
possible solutions to the issue of Kashmir; the organisation welcomes
any moves that contribute to a climate in which human rights promotion
and protection are more likely to be ensured. Amnesty strongly
believes that human rights must be at the centre of any solution
to the Kashmir issue and that whilst understanding that the Government
of India faces grave challenges in Jammu and Kashmir it cannot
disregard its obligations under the International Covenant on
Civil and Political Rights.
Amnesty International has for several years
had an outstanding request with the Indian authorities for access
to Jammu and Kashmir which has to date been refused.
Amnesty International
October 2006
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