Injustice remains an impediment to the Indian republic, says AHRC

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

The Asian Human Rights Commission (AHRC) congratulates India on its 63rd Republic Day. From a nation that suffered the brutal consequences of colonisation and the lasting wounds of separation, for the past 63 years, the country and its people have brilliantly shown the resilience to hold close to heart the promise they made more than six decades ago, to remain a sovereign socialist secular democratic republic. The Indian experience of democracy is of immense value in Asia, since for the most of the continent; the concept has only made cameo appearances.

Despite this, the concept of democracy and republic is incomplete, as reiterated in the Constitution, unless justice, liberty and equality are ensured to the people, without exceptions. The integrity of the nation and the dignity of its people depend on this. It is in that the country has to shed its colonial hangovers, and if required reinvent itself, as a nation where these fundamental notions implied in the term 'democratic republic' remain not just as mere words mentioned in the basic law, but realisable guarantees, for which the state should not spare any of its resources.

A recent video that was mentioned in the country's media, of the officers from the Border Security Force (BSF) brutally assaulting a suspected cross-border cattle smuggler is to the point. The nationality of the victims apart, such an incident should not have happened on the first place. That it happened shows that the country's elite border guards have no respect to the country's basic law or to their operative mandate. The video is an exception only to the extent that it was probably for the first time that such an act by the BSF stationed along the Indo-Bangladesh border has been video documented. The AHRC and its partner organization based in West Bengal, MASUM, on more than some 800 separate occasions, reported similar incidents to the authorities, urging them to take action against the BSF officers, and suggesting that the incessant practice of manifest forms of custodial violence - ranging from torture to extra-judicial execution and rape - shows the moral wilt in the force which in itself is a threat to the security of the nation. The incident is ample proof to the fact that the agency today operates in an environment of impunity. Impunity has no place in a democratic republic.

Despicable forms of impunity are enjoyed not just by the BSF. Widespread practice of torture by the state police officers casts a dark shadow upon the very notion of the republic. The country is yet to wake up to the reality that the practice of torture, in its entire manifest forms, is incompatible with what has been guaranteed in the Constitution. While a considerable number of people in the country, including some respectable officers within the Indian Police Service, reiterate that the present state of affairs within the law enforcement agencies cannot coexist with the demands of a modern democratic republic, there is hardly any debate within the country as to what should be done to bring about a change to this unacceptable status quo. Even the country's civil society has ignored to engage with the subject, but for a few exceptional human rights organizations, which is a minority, in relation to the large number of human rights groups that operate in India, enjoying the relatively free space that the country guarantees for human rights work. Fair trial guarantees and the basic presumption of innocence cannot coexist with the practice of torture.

When the law enforcement agencies become incompatible to undertake their responsibility according to the demands of a democratic state, it challenges not only the very concept of democracy, but also encourages inequality and therefore injustice. The recent incident reported from Balangir district, Orissa state of the torching of 40 Dalit houses by the members of a militant dominant caste is an alarming reminder to the fact that prejudices based on inequality still haunts the realization of the true republic. The fact that an alarmingly high percentage of children from the marginalized and minority communities living in the impoverished rural backdrops of at least five states in the country do not have, nor do they expect, any hope to be saved from the certain death due to starvation and malnutrition reiterates that injustice is the practice though justice is the guarantee. A country with its law enforcement agencies enjoying impunity cannot be of any use to check this injustice.

So is the situation of the country's judiciary. That the judiciary too, and with that the country's justice framework has failed, is today no more the 'hyperbole' of human rights organizations. The country's law minister himself has reiterated this reality. In a country where its judiciary cannot expect the prosecution to be capable of assisting the court in its quest to find the truth, or a court where the trial can take anywhere between two to ten years to conclude, or worse, where the judiciary itself can guarantee that only seventy percent of its judges are honest, justice has no life. There cannot be percentages awarded to justice. There can only be either justice or injustice.

The annual remembrance of the day in which the country and its people declared for themselves a sovereign socialist secular democratic republic should not remain a day on which parades are held and speeches made. It must be also a day of introspection. Of what it implies by the sovereignty of the people, and by it, to what extent is India truly a democratic republic.

So far injustice has remained an impediment to the complete realization of the republic. Failing to address it is as bad as undermining the republic.

For information and comments contact:
Bijo Francis
Telephone: +852 - 26986339
Email:indiadesk@ahrc.asia, southasiadesk@ahrc.asia

Case against human rights activists for organizing people's tribunal

Mr Kirity Roy, Secretary of Banglar Manabadhikar Suraksha Mancha (MASUM), who was associated with the European Union funded National Project on Prevention of Torture in India, was arrested by the Anti Terrorist Cell of Kolkata Police from his residence in Serampore on Wednesday. Although the police sought his remand, a magistrate released on bail in the evening.

Roy”s arrest was in connection with a case registered against him and some others for organizing a People’s Tribunal on Torture in Kolkata on June 9 and 10, 2008.

People Watch, the Madurai-based human rights organization, which was in charge of the National Project had organized hearings by people’s tribunals in different states of India.

Roy has been charged with offences under Section 170 (Personating a public officer), Section 179 (refusing to answer public servant authorized to question), Section 229 (Personation of a juror or assessor) and Section 120B (Criminal conspiracy) of the Indian Penal Code..

Roy was only one of the organizers of the People’s Tribunal on Torture. The panelists included Ms. Pamela Philipose, Executive Director, Women Feature Service, Mr. Ashok Chakravarti, former Senior Director, NHRC, Justice Malay Sengupta, former Chief Justice of the Sikkim High Court, Dr. Mohini Giri, former Chairperson of the National Commission for Women, Mr. Ashutosh Mukherjee, former District and Sessions Judge, Dr. Tapas Bhattacharjya, Dr. Satyajit Ash, M.D., Psychiatrist, MON Foundation, Dr. Sreemantee Chaudhuri, Psychiatrist, Dr. A. K. Gupta, Head of Forensic Medicine, Calcutta Medical College.

Roy challenged the validity of the FIR against him in the Calcutta High Court (Kirity Roy versus State of West Bengal & others vide WP No. 25022(W) of 2008). On August 26, 2009 Justice Sanjib Banerjee of the High Court dismissed the petition on the ground that police investigation was necessary to find out whether the petitioner organized a parallel judiciary. Roy filed an appeal (MAT 1219/2009) along with a stay application (C.A.N. 10511/2009) in the Division Bench of Chief Justice Mohit Ranjan Shah and Justice Pinaki Chandra Ghosh. The Division Bench of Calcutta High Court is scheduled to hear the case today (April 8).

Henti Tiphagne, Executive Director of People’s Watch, writes:

I personally collected facts of the case over phone from Mr. Kirity Roy, who was released on bail at 5.00 p.m. According to him, he was arrested at 9.45 a.m. by policemen in plainclothes, Anti Terrorist Police, Detective Police from Kolkata along with Serampore Police from his residence. They took him to the Headquarters of Kolkata Police at 11.00 a.m. and then for medical examination at the Kolkata Medical College. At 2.30 p.m. he was produced before the Chief Metropolitan Magistrate for remand. A dozen lawyers fought for his bail. The State was determined to ensure that he was remanded and therefore they produced charge-sheet hurriedly along with the Prime Accused, Mr. Kirity Roy. But he was granted bail at 5.00 p.m.

The co-accused in the case are the then State Law Officer of the National Project, the State Legal Associate, the State Program Associate, three District Human Rights Monitor and myself, Director of the National Project.

The National Project on Preventing Torture in India ended on December 31, 2008.

We urge the authorities to:
• Drop the case against the above mentioned human rights defenders immediately and unconditionally
• Guarantee in all circumstances their physical security and psychological integrity;
• Comply with all the provisions of the United Nations Declaration on Human Rights Defenders, in particular with its Article 1, which provides that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels”, as well as with Article 12.2 (“the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”);
• More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with in accordance with the Universal Declaration of Human Rights and with international and regional human rights instruments ratified by India.