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Wednesday, 25 April 2012

India’s human rights obligation – A Case study of discrimination and torture in Indian State of Uttar Pradesh



http://pvchr.asia/?id=61

http://www.pvchr.net/2012/04/indias-human-rights-obligation-case.html 

http://www.mynews.in/News/indias_human_rights_obligation_%E2%80%93_a_case_study_of_discrimination_and_torture_in_indian_state_of_uttar_pradesh__N446520.html 
 
 "Police brutality on me, my father and brother shiver my spine and fear overpowers me. Still I am terrified by the police thinking that as I raise voice against them, then they might implicate me in any false case. Earlier police used to stop me and used to threaten that they would implicate me in false case. The entire incident has pained me and it would be in my mind for years together. Suffering emanating out of police torture can not be compensated".  (Voice of voiceless, 2011)
 
 India is indeed "incredible[1]" in a way it treats its vulnerable citizen particularly lower caste and poor people. Discrimination, torture, enforced disappearance, police injustice, impunity cases of arbitrary detention are rampant and enough to substantiate India's failure to its human rights compliances. Signatory of various human right instruments, Indian government failed to protect and fulfill its obligation not only to its citizen but also breached many international human rights law. Against this background, this article will argue that India has failed to keep it human rights obligation, particularly the right to freedom torture and arbitrary arrest. In addition, various case studies have been discussed to support the argument. Article concludes with recommendations.
Background
Systemic discrimination to lower caste and minorities has always been a part of cast structure in prevailing Indian society. Due to discrimination, disadvantaged groups failed to access their basic human rights such as access to education, health services, safe drinking water and housing rights. These situations are further aggravated when the following human rights violations are committed, namely:
  • Rights against subjection to torture or to cruel, inhuman or degrading treatment;
  • Right to have effective remedy;
  • Right against arbitrary arrest, detention or exile;
  • Right to be presumed innocent until proven guilty
  • Right to have a fair public hearing in civil or criminal matters
 
There have been many documented cases of police atrocities and states inability to protect the victims. Rather, noticeable in various cases[2], state machinery have been complicit in alleged violations and have found guilty of adding and abetting the criminals. In this connection, documentation has been conducted by India (Varanasi) based N.G.O., PVCHR[3] (People Vigilance Commission on Human Rights) in collaboration with National Alliance on Testimonial Therapy between 2002 to 2010. For the purpose of the gathering concrete evidence, Testimonial method[4] has been adopted.   
Further section provides a brief overview about the international human rights instruments India have signed and rectified.
India human rights obligations
India have either acceded or have rectified the following human rights treaty[5]-
  • International Covenant on Civil and Political Right 
  • International Covenant on Economic, Social and Cultural Rights
  • International Convention on the Elimination of All Forms of Racial Discrimination
  • Convention on the Elimination of All Forms of Discrimination against Women
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (only signatory)
 
In addition, India is one of the founding signatories of Universal Declaration of Human Rights (1948). Notable is the fact that signatory states (UN conventions) have legal obligations to protect, promote and fulfill concerned human rights treaties[6].  For the purpose of this study, it will be worth while to have brief overview on the concerned rights enshrined in international human rights instruments.
Universal Declaration of Human Rights (1948) in article 5 stress on "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Further this element of rights solidifies in International Covenant on Civil and Political Rights (1976) article.7 which illustrates "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment"'. However, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment clearly elaborates that "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction (art. 2(1))" Even Convention forbids the practice of torture in every circumstance including emergency (art.2 (2)) and no public authority can justify torture (art. 2(3)[7]. Nonetheless, on discrimination, Universal Declaration of Human Rights (1948) says 'All human beings are born free and equal in dignity and rights…" (art.1). Further, Convention on the Elimination of All Forms of Racial Discrimination in its various articles (art.1 (2), art. 2(1(a). art.4) condemn the practice of discrimination. 
 
However, article 15 of the Indian constitution prohibits discrimination on grounds of religions, race, caste, sex or place of birth. The Indian Constitution outlaws caste based discrimination as well as practice of "untouchability"[8]. In addition, under 'article 21' no one shall be deprived of his life or personal liberty.
Case Studies
Case[9]  1.
In this case, powerful local politician have used political connection through local police in order to settle the personal land dispute. Victim S. (district Chandoli, Utter Pradesh, 2008) have been targeted and tortured by district police. In addition, his elder brother was killed in a fake police encounter; his father was illegally imprisoned and tortured. However, due to poor financial condition victim was unable to access the judicial system which is notoriously slow in delivering the justice. Nonetheless, victim failed to get his grievances redressed by police or concerned authority.
 
This case represents police-politician nexus in tormenting poor people for their personal gains. Interestingly, local police in addition to dereliction of their duties become a tool of oppression and committed the gross violations of human rights by taking an innocent person life in fake encounter. Along with it, victim due to his inability (financially hindrance, mentally hardship) could not access to the justice system, let alone the fair trail.
 
Human rights violated in the case-
  • Right to life (I.C.C.P.R. art 6(1)[10]
  • Rights against subjection torture or to cruel, inhuman or degrading treatment;     (I.C.C.P.R. art.7)
  • Right to have effective remedy;    (I.C.C.P.R. art. 2 (3.a)
  • Right against arbitrary arrest, detention or exile;      (I.C.C.P.R. art.9 (1))
  • Right to be presumed innocent until proved guilty    (I.C.C.P.R art. 14. (2)
  • Right to have a fair public hearing in civil or criminal matters (I.C.C.P.R art. 14, 16)
  • Right of person to be treated humanely while in detention (I.C.C.P.R. art. 10(1)
  • Right to privacy (I.C.C.P.R art 17(1) (2)
  • Right to equality and non-discrimination (I.C.C.P.R. art. 2(1), 26)
 
Case[11]  2.
 This case presents a classic example of police atrocities where Varanasi district police has fabricated a case of burglary against lower caste (Mushahar) man Mr. A, 40. He spent four years behind the bars without ever committing any crime. The victim, belonged to the socially and economically disadvantaged group (Mushahar), was arbitrarily arrested many times. He along with his father and uncles were quite often harassed by local police. Interestingly local police did not follow any due procedure of law while arresting, tormenting and searching victim's home abruptly. This horrible incident left victims family shattered. His health gotten worse and could not get the job due social stigma, let alone his economic hardship. Till date (April 2012), victims failed to get any justice.
 
However, notable is that fact, Varanasi police arrested the victim on the basis of the social stereotype cast of Mushahar community (Victim's caste) being involved in illegal activities. Therefore this case is also a symbolic representation of deeply entrenched social biases prevailing in Indian society and shows government machinery is not immune to it. Rather at many occasions are responsible for adding and abetting the crime.   
 
Human rights violated in the case-
  • Rights against subjection torture or to cruel, inhuman or degrading treatment;     (I.C.C.P.R. art.7)
  • Right to have effective remedy;    (I.C.C.P.R. art. 2 (3.a)
  • Right against arbitrary arrest, detention or exile;      (I.C.C.P.R. art.9)
  • Right to be presumed innocent until proved guilty    (I.C.C.P.R art. 14.(2)
  • Right to have a fair public hearing in civil or criminal matters (I.C.C.P.R art. 14,16)
  • Right to privacy (I.C.C.P.R art 17(1)(2)
  • Right of person to be treated humanely while in detention (I.C.C.P.R. art. 10(1)
  • Right to equality and non-discrimination (I.C.C.P.R. art. 2(1), 26)
 
Along with above mentioned violated rights, United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) [12], Standard Minimum Rules for the Treatment of Prisoners[13] and United Nations Rules for the Protection of Juveniles Deprived of their Liberty[14] were disregarded by the officials. In addition, Indian government failed to take effective legislative, administrative and judicial steps to prevent act of torture therefore is in breach of its human rights obligations. 
 
Has India failed to keep its human rights obligations?
Right to Life, liberty and security
The growing number of extra judicial killings, rampant discrimination against vulnerable groups including minorities and legal immunity questions whether government has honest intention to fulfill their human rights obligations. Custodial torture, inherent in daily police practice, still remains a serious concern. Police practices include assaults, physical abuses, custodial rape, psychological humiliations, as well as deprivation of food/water/sleep and medical attention. Study shows that every year in India, 1.8 million people are victims of police torture[15]. According to National Human Rights Commission Annual report, from 2001-2010, 14,231 people have died in police custody, as a consequence of torture[16]. As per Universal Periodic Review recommendation by WGHCR, Indian government needs to expedite ratification of the Convention against Torture (CAT) preceded by the enactment of a domestic law[17].
Obstacles to justice
The Police Act, 1861 and the Prison Act, 1894 are two of the oldest statutes in effect. Despite countless recommendations for their repeal and replacement with the laws, in sync with the international human rights standards, they are still operational[18].  Proper implementation of the many progressive laws and regulations have been demanded in order to remove the many structural and functional problems in the justice system. However, rights violations by police continue to rise in 2008-9[19]. Police regularly accused of torturing, beating, abduction, deaths in custody and extra- judicial killings in fake encounters. Police department do not usually register case, conduct arbitrary arrests and disregards the procedural safeguards[20]. Nonetheless, there remains a serious lack of awareness amongst litigants on free legal aid services which often doesn't reach the needy.
 
Discrimination against disadvantage groups (Scheduled Tribes, Scheduled Caste, and Women)
India tribal population known as Dailts, have long been discriminated in every aspect of life. The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act, 1989 seeks to proved such protection. However, weak implementation and low conviction rates (29.32%) are disturbing as is police often refute to register the case against Dalits[21]. Despite the overarching mandate of equality and non-discrimination contained in the Indian Constitution and regardless of the enactment of women specific laws, discrimination against women is systemic and shapes all structures of the state and society[22].  Cases of domestic and sexual violence, harassment at work place, physical and threat are on rise.
 
Conclusion and recommendations
 The right to equality and freedom from discrimination, torture and cruel degrading treatment and inhumane punishment is protected by various provisions of the various international human rights instruments including International Covenant on Civil and Political Rights. Based on International law, States are accountable on its failure to protect its citizen against human rights violations particularly custodial deaths, torture in custody and discrimination on the basis of one's caste. This clearly manifests the gap between prevailing international human rights law and its implementation at domestic level.  Discussed cases established the fact that Indian bureaucracy is not sensitive enough towards human rights issues. In addition, deeply rooted social customs have continually sustained and supported social biases against vulnerable groups including highly compartmentalized and stigmatized lower class. 
 Though Indian government is the signatory of many International human rights instruments but in practice blatant violation of human rights is apparent. Rotten police system, slow and inaccessible justice system is just a symbolic representation of the current scenario.
 
In conclusion, police system needs to be revamped. In addition, promotion of human rights education should be a compulsory training for government official regardless of their rank and status. Justice should be speedy and must be accessible to disadvantaged groups. To achieve this goal, a human rights awareness campaign could be launched in rural areas. People can be empowered only if they know their rights. However prevailing situation of persistent human rights violations presents manifold challenges to Indian government to full fill its human rights obligations. Number of progressive legal and policy initiatives has been taken by the government. Nonetheless, the lack of implementation continues to hinder the realization of human rights for India's most vulnerable.
 
Footnotes


[1] Incredible India, Indian tourism promotion statement
[2] Documented cases available on www.detenionwatch.blogpot.com.om 
[4] Testimonial includes detailed information about the victim's experience.  Such testimonies was the confirmation of torture as actual reality and as lived experiences, to the sufferer and to the public,   Eastmond, M. (2007) 'Stories as Lived Experience: Narratives in Forced Migration Research', Journal of Refugee Studies, Vol. 20, No.2, P.258 Oxford University Press.
[8] Working group on human rights in Indian and the UN
[9] Voice of voiceless, Sept. 2011, No.2.
[11] Voice of voiceless, Sept 2011, No.2
[15] Human rights in India- Joint Stakeholder's report by Working Group on Human Rights in India and the UN (WGHCR)
[16] National human right commission report annual report, 2001-2012 , India
[17] Human rights in India- Joint Stakeholder's report by Working Group on Human Rights in India and the UN (WGHCR
[18] ibid
[19] National human right commission report annual report, 2001-2012 , India, p.86
[20] Human rights in India- Joint Stakeholder's report by Working Group on Human Rights in India and the UN (WGHCR) p.14
[21] Ibid, p.18
[22]  Working Group on Human Rights in India and the UN (WGHCR),  under title 'Discrimination'
 
 
 by
 
Amit Singh
Institute of Human Rights and Peace
Mahidol Univesity, Thailand
 
--
 
 
 
Hatred does not cease by hatred, but only by love; this is the eternal rule.
--The Buddha
 
"We are what we think. With our thoughts we make our world." - Buddha
 
 
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