Amnesty International - Report - ASA 20/08/00 April 2000 India Persecuted for Challenging Injustice: Human Rights Defenders in India

Introduction
    The defence of human rights....................................................................     1
    Amnesty International's work with human rights defenders.................    2
    International protection of human rights defenders.....................................    3

PART I:     Defending human rights in India

     1. The human rights movement in India.......................................................    5
    2. The challenge for human rights defenders in India............................    8
            3. The responsibility of the state to protect human rights defenders
    and to take steps to ensure they can carry out their work freely.........     10

PART II:     Constraints on human rights defenders in India

    1. Use and misuse of the law against human rights defenders...................    12
        a. The prevention of peaceful protest and assembly........................    12
        b. The prevention of freedom of expression......................................    14
        c. Preventive detention..........................................................................    16
         d. Use of excessive force......................................................................    20
         e. The use of false cases.......................................................................    25
         f. Contempt of court...............................................................................    29
        g. Control of resources.........................................................................    30
    2. Other abuses to which human rights defenders are subjected...............    33
    3. Difficulties of access to effective remedy for human rights defenders..    35
        a. The legal route to remedies..............................................................    36
        b. Statutory human rights institutions................................................    41
        c. Alternative remedies forged by human rights defenders.............    44
    4. Access to the international human rights community..............................    49

PART III: Specific areas of concern

    1. Human rights defence in the context of economic and industrial development.......................................................................................................    53
    2. Human rights defenders working with dalits..............................................    58
    3. Human rights defenders working with adivasis.........................................    65
    4. Human rights defenders working against child and bonded labour.......    70
    5. Women human rights defenders..................................................................    72
    6. Human rights defenders from religious minority communities...............    77
    7. Human rights defenders in armed conflict.................................................    80
        Attacks by armed groups......................................................................    92

APPENDIX I:     Casesheets

APPENDIX II:     UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

Cover photo:     Two women activists being forcefully removed from a peaceful protest by police in Saharanpur district, Uttar Pradesh, 25 June 1997. © Private (AI use)

"Human rights defenders need to carry the conviction to society that when we raise a voice against discrimination... we are talking about the principle of equality and ... the principles of right to life and liberty. These principles concern everyone and not only those affected. The greatest protection is if we carry the conviction into society at large that what we talk about concerns human civilisation."See footnote 1

INTRODUCTION

The defence of human rights

Human rights defenders are the men and women committed to realizing the ideals proclaimed in the Universal Declaration of Human Rights, that all people should enjoy freedom from "fear and want". They may be grass-roots activists joining in a protest demonstration with a local movement or union or they may have a high public profile arguing at the national or international level for the defence of human rights. The methods they employ in this work vary enormously. Wherever there is persecution and oppression, when human rights are denied or human dignity is threatened, when harassed minorities or oppressed peoples are at risk, defenders strive to protect the weak and hold to account those who abuse their power.

    Human rights defenders are on the front line of the struggle for human rights. They are frequently the only mediating force between the population at large and the power of the state. Local activists are also a crucial source of information -- often the only one -- about what is really happening in a country; it is they who alert international non-governmental organizations (NGOs) and the international media and who report abuses to the relevant United Nations bodies and other institutions; their action helps bring down the wall of silence that governments try to erect to conceal abuse.

    In all societies, no matter how democratic they may appear, independent scrutiny by civil society makes an important contribution to ensuring that states protect human rights and conduct their activities within the parameters of the laws, treaties and contracts agreed upon within that society. Indeed, the best safeguard for the human rights of all individuals is the opening up of the state to reasonable public scrutiny and the encouragement of the community to become involved in these processes. Through campaigning and debate, human rights defenders promote the development of law and safeguards which can prevent abuses. They constantly remind governments that they must fulfil their promises and honour their legal and constitutional obligations to protect the rights of their citizens. This role continues to be important because the distance between government rhetoric and reality is often enormous.

"no single organization or movement can really pressurize the State to adhere to policies of social justice... Only the collective energies of movements all over the country, and perhaps the world, can bring an effective pressure on the State."
[A human rights defender speaking at an Amnesty International meeting held in India during 1999]

    Human rights defenders often pay a high price for their courage. New forms of harassment and repression are being carried out by governments including smear campaigns against individuals and institutions, attempts to criminalize activities essential to the defence of human rights, and the creation of legal obstacles to obtaining the means necessary to carry out human rights work. In some countries, the actions of these human rights defenders working on the front line makes them actual or potential victims of reprisals, threats, harassment or arbitrary arrests, forced exile, torture, "disappearance" or death.

Amnesty International's work with human rights defenders

Amnesty International, a worldwide movement established in 1961, considers itself part of a global movement of human rights defenders, a movement which the organization has committed itself to strengthening and supporting. Amnesty International recognises the crucial role that defenders play in the struggle for human rights and is giving top priority to their protection.

    Amnesty International has worked with human rights activists throughout India for many years to reflect their concerns at international fora and to provide international support for national and local human rights initiatives. Based on a mandate set by its members which opposes the violation of certain rights within the Universal Declaration of Human Rights while promoting all rights in the Declaration, the organization could never hope to reflect the full range of concerns of human rights activists in a country as huge and diverse as India. However, the process of monitoring, reporting and reflecting on at least some of the concerns of the human rights movement has made the organization acutely aware of the growing problems faced by those defending human rights throughout India. While Amnesty International's prime concern -- as for all human rights defenders -- is for the victims of human rights violations, in publishing this report the organization is highlighting a trend in which human rights defenders in India are becoming targets themselves and their work for victims obstructed.

    During 1999 Amnesty International held a series of meetings with human rights defenders in India. We brought together activists working on a broad range of issues to discuss and share experiences of their work in protecting and promoting the full range of human rights. Through this process Amnesty International has sought to identify patterns of harassment but also to facilitate interaction between activists and to encourage the establishment of mechanisms to strengthen their work to protect human rights.
    
    On the basis of the discussions held during 1999 and research carried out by Amnesty International on India in recent years, this report seeks to demonstrate the particular problems and dangers faced by human rights defenders working on particular issues and with particular groups. The report is divided into three parts. Part I sets out the background to Amnesty International's concerns. Part II looks at how the law is used against human rights defenders in relation to the rights within the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (see below) and other relevant international human rights standards. It also looks at how the Indian state has limited the access of human rights defenders to the rights set out in the Declaration. As well as looking at how the law is used against individuals and organizations defending human rights, this part also looks at the broader aspect of activities associated with human rights defence including the right to peaceful assembly and freedom of expression.

    Part III of the report looks at specific areas of concern in relation to human rights defence in India, analysing the particular problems faced by human rights defenders coming from or working with specific groups identified as "vulnerable". In looking at these problems it is often difficult to differentiate between the human rights defenders and the constituencies they represent. The final chapter of Part III looks specifically at the problems faced in defending human rights in areas of armed conflict in India including aspects of the law used against human rights defenders and the way in which human rights defenders are under attack from both the state and armed groups. Case studies to illustrate concerns about human rights defenders are used throughout the report and a set of more comprehensive Casesheets are given in Appendix I to the report.

    As an adjunct to this report, Amnesty International will be publishing a series of recommendations which are intended to seek the full realisation of the rights of human rights defenders in India and thereby provide space for the unhindered defence of human rights. These recommendations are those which have been put forward by human rights defenders in India themselves.

International protection of human rights defenders

On 9 December 1998, on the eve of the 50^th anniversary of the Universal Declaration of Human Rights, the United Nations General Assembly adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. The Declaration has become commonly known as the Human Rights Defenders Declaration as the broad range of individuals working for the promotion and protection of human rights have become collectively known as "human rights defenders".

    The adoption of this Declaration was the culmination of more than twelve years of negotiations and lobbying by human rights organizations to ensure international recognition for the crucial role that human rights defenders play in promoting and protecting human rights and provide them with some international protection.

    The text of the Declaration is given in Appendix II to this report. As well as setting out the rights of human rights defenders to various rights and fundamental freedoms including the right to know, seek, obtain and receive information about human rights and fundamental freedoms and the right to participate in peaceful activities against violations of human rights, it also sets out roles and responsibilities for these defenders including strengthening understanding, tolerance and peace among racial and religious groups and safeguarding democracy. In addition it sets out certain responsibilities of individual states towards human rights defenders including protecting them against violence, threats, retaliation and discrimination and promoting and facilitating the teaching of human rights and fundamental freedoms.

    The Human Rights Defenders Declaration is not a treaty to which countries are bound. Nor is it justiciable. It was, however, adopted by every member of the United Nations through their participation in the UN General Assembly. To encourage its implementation, the 1999 session of the UN Commission on Human Rights called on all states to provide and give effect to the Declaration and to report on their efforts. The Commission urged all UN human rights bodies and mechanismsSee footnote 2 to take the provisions of the Declaration into account in their work. The UN Secretary-General has prepared a report for this year's session of the Commission [March to April 2000] on activities undertaken to give effect to the Declaration, although only a handful of governments have provided information. Human rights organizations, including Amnesty International, are pressing the Commission to establish at this session a Special Rapporteur on human rights defenders with a mandate to monitor, document and intervene on behalf of human rights defenders under threat. See footnote 3

1.     The human rights movement in India

"No one is going to give them their rights to live with dignity on a silver platter. They have to be extracted with force... We will have to strengthen ourselves to stop those who find it profitable to misuse authority and public funds. Perhaps the courts and the NGOs are the only solution." See footnote 4
Justice Venkatachaliah, former Chair, National Human Rights Commission

The global trend towards rights awareness has led to a proliferation of NGOs and movements for human rights worldwide. In independent India post-1949, a civil liberties movement which had been active in opposing human rights abuses under the colonial rule of the British including the preventive detention of political prisoners, re-emerged to raise concerns about state atrocities against left-wing political activists particularly in West Bengal and Andhra Pradesh. The 1975 Emergency again galvanised the human rights movement to oppose the oppressive actions of the state. Many politicians who are active today were imprisoned by the state and were the subject of campaigns by the human rights movement in India and abroad . Given the history of the human rights movement, its political leanings are generally leftist and fiercely secular.
    
    The human rights movement in India has in recent years been transformed from one primarily concerned with civil and political rights to a movement raising concerns across the broad spectrum of human rights from the right to livelihood and the right to employment to the right to a fair trial and freedom of expression. The current diversity of the human rights movement emerges from the range of issues of concern across the entire rights framework, and from the enormity of the human rights challenges confronting India as a democratic country facing extreme poverty, increasing pressure on resources, social discrimination, economic and industrial development and movements for self- determination to name but a few.

    In recent years, the opening up of the economy to international competition has underlined the indivisibility of human rights: that all rights are interrelated and that one right should not be sacrificed for another -- a person protesting against a violation of the right not to be arbitrarily deprived of property should not be subjected to arbitrary detention, torture or ill-treatment. This in turn has challenged activists working on issues across the human rights spectrum to find new ways of working together and supporting each other.

    The need for solidarity at the local and national level is reflected at the international level. Globalization has resulted in an increase in inequality, social disintegration and cultural hegemony, which has given rise to a growing number of excluded citizens throughout the world. The organizations and growing number of men and women who condemn such exclusion and disregard for human dignity are often persecuted for exposing the empty rhetoric of human rights promises and removing the mask of international respectability behind which governments, companies and other actors attempt to hide. There is a need to co-ordinate efforts at the international level to ensure that the globalization process does not become a levelling process flattening all human rights standards in its path.


[ Women holding a public meeting against domestic violence, child sexual abuse and the harassment of women activists in Uttar Pradesh, September 1999 (see Casesheet 6). © private (AI use) ]

    

" Mutual solidarity requires first of all, all of us to recognise irrespective of the arena in which we are working, that whoever works for the protection of human rights anywhere is our colleague. In spite of whatever differences we may have."See footnote 5
[A human rights defender speaking at an Amnesty International meeting held in India during 1999] India's human rights movement is made up of a variety of sectors, all working around various rights agendas but using different formats and approaches. There continues to be a strong civil liberties movement, dealing mainly with civil and political rights violations but increasingly addressing social and economic rights violations. There are also numerous social action groups which have grown up throughout the country in response to particular situations -- usually to address rights issues faced by the most economically and socially vulnerable at the grass-roots level. There are also numerous voluntary organizations carrying out a range of activities from provision of technical training to legal aid to awareness-raising. More recent years have seen the rise of "people's movements": loose networks of individuals directly affected by human rights abuses. In India the term "NGO" has commonly been used to describe those organizations receiving foreign funds for their work. Many human rights activists in India are ideologically opposed to foreign funding of human rights activities.

    The range and scale of human rights abuses throughout India and the sectors which address them makes it difficult for the human rights movement to act as one and often makes it difficult for human rights defenders to offer one another solidarity. There are several specific issues which divide
" The movement itself must have a lot of ethical integrity, moral integrity... and that also includes being critical of movements which have come up from genuine peoples problems when they behave in a way which is undemocratic or contrary to the same norms which we are applying to the state or other oppressing groups." See footnote 6
[A human rights defender speaking at an Amnesty International meeting held in India during 1999] the human rights movement, such as the issue of foreign funding referred to above. In addition there is an ongoing debate within sections of the human rights community about the responsibility of human rights organizations to condemn abuses by armed opposition groups. Ideologically, some parts of the human rights movement are sympathetic to the political aims of many armed groups engaged in struggles for land or self-determination for example. Further, many human rights activists rightly stress the responsibility of the state under the Constitution and international human rights treaties. This has presented a dilemma in the face of abuses by these armed groups and opened activists to criticism of their lack of neutrality. In light of this, there is a growing acknowledgement that conflicts should be subject to common rules which protect civilians from violence and a framework within which such violence can be condemned. Amnesty International itself in 1991 amended its mandate to unconditionally oppose hostage-taking, torture and deliberate and arbitrary killings of civilians or those taking no direct part in the hostilities by armed opposition groups.

    While many of those involved in the defence of human rights may have differences of ideology, or even process, with one another, it is increasingly recognised that solidarity on key issues of human rights is a vital route to the realization of human rights. Discussions held with human rights defenders during 1999 reinforced that view.
" We require much more solidarity than we have today... Because... we have not been able to -- even within ourselves -- really set up the concept of human rights as a value. As a value which is something more than the particular political situation to which it attaches itself, the particular social context from which it has arisen... It is a value by itself to which we are all committed, ought to be committed. It is something we need to internalise much more so that we can respond automatically, immediately to the harassment or suppression that the human rights activists are subjected to." See footnote 7
[A human rights defender speaking at an Amnesty International meeting held in India during 1999]

Throughout India, human rights defenders have faced severe problems in accessing redress for the victims that they represent and have been subjected to personal threats and violence because of the work that they are undertaking. Individuals and organizations have been targeted by the state or other vested interests for activities that appear to threaten their power base. Peaceful protests have been met with excessive force and human rights defenders have been detained.

    For many years Amnesty International has been particularly concerned about the situation of those defending human rights in areas of armed conflict in India -- notably in Punjab, Jammu and Kashmir, and areas of the north-east but also in other areas where there is conflict between law enforcement agents and naxalites or other Maoist groups . Several human rights defenders have been killed or subjected to other human rights abuses by both state security forces and armed groups in these regions where human rights are so often sacrificed in the name of national security and the aims of the conflict (see Part III, Chapter 7). The conviction of the state that these human rights defenders are a "wing" of the armed opposition, while ignoring the very real human rights concerns that they are trying to raise has had a devastating impact on the work of human rights defenders in these areas of India.

    The complexity of human rights issues presents a particular challenge to human rights defenders in India. India is a country replete with mutually reinforcing inequalities. Economic inequalities are huge -- people die of starvation and live as bonded labourers in some regions of the country while others enjoy an extremely affluent "middle class" lifestyle. Roughly 300 million of India's one billion population live below the poverty line. Economic inequality means unequal access to health, education and other facilities but it also means unequal access to justice.

    Economic inequalities are exacerbated by social inequalities. The existence of the caste system condemns large sections of the population to live with little hope of improving their living and " In India there are one billion people, one billion people but 40% of them are poor because 300 million of them can't consume what has been produced... This 40% has to be addressed. The people who are working against globalization, liberalisation and politics of privatisation, we will have to face political and civil rights violations. It's all connected: socio- economic rights and political and civil rights are inter-linked. You protest because not only are your political expressions curbed but you are curbed because you are talking about the poor." See footnote 9
[A human rights defender interviewed by Amnesty International in Bangalore, December 1999] employment standards and in fear of atrocities by dominant castes. For tribal people there is widespread alienation from a society which is increasingly encroaching on the land and resources on which they rely. These inequalities are once again exacerbated by gender inequalities. In response to economic development, "liberalization" of the economy and globalization in recent years which have tended to merely exacerbate these inequalities, people's movements have emerged to challenge these forces which threaten the human rights of the most vulnerable. The fight against inequality and discrimination at the grass- roots in India is growing, fuelled by increased access to information and increased awareness of rights through the work of activists. Movements within the country have also found support from international initiatives.

    However, those who have emerged as agents of social change are seen by those in power as a direct threat. "With the new approach to the right to development, agencies for development are also agencies for human rights, playing both the roles of activism and advocacy." See footnote 10 Branded and labelled as "anti-national elements", these human rights defenders have been harassed, including by the use of false criminal cases, threats, campaigns to discredit activists, the establishment of parallel NGOs, violence and preventive detention.

"People are getting organized and that is hurting the pride of some and pinching the pockets of some others. Why? Because people are coming to know of their constitutional rights. They have started demanding accountability from the sarpanches [village heads] and the government servants. Slowly village people are asking their sarpanches i.e. the panchayat presidents to hold gram sabha [village assemblies] as prescribed by the law. People have started holding 'rallies' and handing over 'Memorandums' to the Government officials to express their grievances and demand basic amenities in their areas. These things are not often welcomed. As a result, as we had foreseen, some oppositions and misunderstandings were inevitably created."See footnote 11

    Amnesty International acknowledges the steps that have been taken by the Government of India over a number of years to support the work of human rights defence for example through the establishment of statutory human rights institutions and the ratification of several international human rights treaties. In addition the organization acknowledges the support that government agencies have given to sectors of social activism through government funded programs and government-NGO cooperation. However, it is concerned that much of the state's actions in defence of human rights are at a rhetorical level and sporadic in their implementation. There is an urgent need for the state to take active steps to ensure the protection of activities in defence of human rights. More than that, in light of increasing concerns in recent years that organs of the state have been actively involved in suppressing human rights activities or acting in connivance with other groups engaged in the suppression of human rights defenders, Amnesty International believes that there is an urgent need for the Government of India to bring certain policies in line with the UN Declaration on Human Rights Defenders.

3.     The responsibility of the state to protect human rights defenders and to take steps to ensure they can carry out their work freely

Rather than working with human rights groups and individuals to ensure rights for the most vulnerable, the state has in too many cases taken action to suppress their activities. Instead of welcoming the formation of international alliances on rights issues, the state has attempted to limit these and restrict them, labelling them as "anti-national". Such defamation plays a key role in generating and condoning attacks on human rights defenders as the perpetrators (who may not be directly associated with the state) feel immune from prosecution and free to abuse their power.
Article 12 of the Human Rights Defenders Declaration
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.
3. In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms.

    The understanding of responsibility for human rights violations has significantly widened in recent years to include not only violations of human rights by the state or its agents but also some abuses by private actors. If the state fails to act with due diligence to prevent, investigate and punish abuses, including attacks on human rights defenders, it is responsible under international human rights law. The responsibility of states to take action against human rights abuses by private persons is established in all the core human rights treaties. The ICCPR requires state parties to "ensure" the rights of the Covenant, an obligation which the Human Rights Committee has indicated extends to protection against acts inflicted by people acting in their private capacity. The Women's Convention also for example requires in Article 2(e) that states shall "take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise."

    The current report documents not only attacks on human rights defenders by the state and its agents but by non-state actors: by armed groups in areas of armed conflict, by local "mafias", by political groupings, dominant castes and industrialists to name but a few, which have varying relations with the state. Almost all demonstrate a pattern of direct involvement, connivance in or acquiescence with the attacks by agents of the state. It was pointed out by many human rights defenders in India during discussions held with Amnesty International during 1999 that many non-state actors cannot operate without the support of the state and that the complexity of power relations in India means that the state is often behind the actions of what appear to be non-state actors. There are concerns at the gradual transfer of power, often through corruption, from the state machinery, in the form of government departments and officials, to individuals and groups including landlords, "mafia", politicians and others, who can misuse it without the same levels of accountability.
    
    Torture, hostage-taking and killing of human rights defenders by armed groups in areas of armed conflict fall under the twin responsibility of the perpetrators and the state. The principles of international humanitarian law, particularly Common Article 3 of the Geneva Conventions, prohibit such acts directed against non-combatants and hold the perpetrators responsible for such abuse. At the same time the state retains its responsibility to protect all civilians, including human rights defenders, from abuses by non-state actors, including armed groups, and obligates it to exercise due diligence in investigating the abuse and punishing the perpetrators (see Part III, Chapter7).

a.     The prevention and criminalization of peaceful protest and assembly

Article 5 of the Human Rights Defenders Declaration
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
(a) To meet or assemble peacefully

     Section 144 of the Code of Criminal Procedure (CrPC) empowers executive magistrates to "direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management" as a means of preventing "obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray". The order can be made against a particular individual, people residing in a particular area or the public generally in a particular place. The order is valid for up to two months or a maximum of six months on the specific orders of a state government.

    Section 144 has been used on numerous occasions in India to prevent peaceful protest in violation of international standards granting the right to peaceful assembly including Article 21 of the International Covenant on Civil and Political Rights (ICCPR) which states that "The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others". The Section is regularly imposed by executive magistrates in areas around construction sites or areas where there is conflict over land and where protests might be anticipated or are ongoing. The order effectively prohibits the gathering of more than five people in those areas and therefore the holding of public meetings or assemblies, however peaceful. It further permits the detention, under section 188 of the Indian Penal Code (IPC), " Many of us have been told that you are blacklisted, and they keep a file of you... they watch the demonstrations that we organize, the rally that we organize -- it's nothing undemocratic, it's very much in the framework of democracy that we are expressing. We are expressing our dissent. It is nothing illegal, according to our Constitution it's nothing illegal. We have a voice. We can express... Today what is happening, the right of expression have been taken away, you can't write, you can't photograph, you cannot speak... this is increasing."See footnote 12

    The Section has been used extensively to prohibit protests against proposals to dam sections of the Narmada River. On the evening of 7 March 2000, section 144 was imposed around the entrance to the Maheshwar dam siteSee footnote 13 in Khargone district of Madhya Pradesh while several hundred people affected by the dam were carrying out a peaceful dharna [sit-in] in a nearby field. The following day, over 350 people, including over 200 women, were forcibly removed and many of them arrested and detained. Several were reportedly beaten with lathis [long wooden sticks] and the clothes of several women were torn.

[ Demonstrators at the site of the construction of the Maheshwar dam, 22- 24 April 1998. © Private (AI use) ]
The courts in India, while finding that section 144 does not impinge on fundamental rights guaranteed within the Indian Constitution, have indicated that there are limits to its application emphasising that an order should only be passed to meet an emergency in exceptional and urgent circumstances. The courts have further observed that the order cannot be permanent or semi-permanent in nature and that repetitive orders under section144 are "nothing but abuse of power." See footnote 14 Section 144 has however been imposed on an almost permanent basis in several areas of India including in parts of Manipur.

    Amnesty International believes that section 144 has been used in violation of international standards to prevent peaceful assembly and as a means of directly prohibiting activities in defence of human rights.

    Indian legislation also allows for externment orders to be issued against individuals to prevent them from entering a particular area. Amnesty International is aware of several human rights defenders who have been the subject of such externment orders. For example, Sections 55-59 of the Bombay Police Act which provide for removal of persons convicted of certain offences have reportedly been used in Maharashtra to ban human rights defenders from entering particular areas of the state. Section 37(4) of the Act (see below) has also been used to ban entry of individuals into certain areas.

    Justice Kolse-Patil, a retired judge of the Bombay High Court who was active in the protests against the construction of the "Enron" power plant in Maharashtra, was arrested together with Mangesh Pawar, President of the Sangharsh Samiti [Struggle Committee], and General Secretary, Sadanand Pawar on 28 February 1997. The arrests were made under section 151 of the CrPC, to prevent the three men from taking part in a planned hunger strike. Mangesh Pawar and Sadanand Pawar were remanded to judicial custody for ten days. On their release they were ordered not to enter Chiplun and Guhagar talukas till 31 March (as permitted under section 37(4) of the Bombay Police Act), on charges that they were inflaming public passions by spreading false information against the government and asking people to boycott the district council elections. Mangesh Pawar was subsequently served with a show-cause notice on 18 April 1997 prohibiting him from entering Ratnagiri and Raigad districts of Maharashtra for a period of two years.

b.     The prevention of freedom of expression

Article 6 of the Human Rights Defenders Declaration reflects Article 19 of the ICCPR to which India is a party. However, the rights set out in these international standards are regularly ignored. It is acknowledged that correspondence to and from many civil liberties organizations (particularly those which operate in areas of armed conflict) is intercepted by the authorities and that their telephones are regularly tapped. See footnote 15 Information and documentation sent to international human rights organizations is often intercepted and much of it does not reach its destination.

    Too often, the Indian state has used the argument of national security to detain individuals exercising their right to freedom of assembly and expression. Often they are preventively detained, under special legislation in force in areas of armed conflict and elsewhere (see below and Part III, Chapter 7), particularly under the National Security Act. During 1999, Amnesty International was concerned to receive reports that several people who held meetings to protest against the conflict between India and Pakistan over Kashmir in Kargil in June/July 1999 were detained on charges of sedition (section 124A of the IPC).
Article 6 of the Human Rights Defenders Declaration:
Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.

    A few days later on 25 July a meeting of the "Marxist study circle" was attacked in South 24 Parganas district of West Bengal. Several people were taken to hospital but police arrested five activists including the President of the Diamond Harbour branch of the Association for the Protection of Democratic Rights (APDR), a civil liberties organization. Five of the attackers were also taken into custody but released shortly afterwards. The five activists were charged under section 124A See footnote 16 of the IPC. They were produced in the Diamond Harbour sub-divisional magistrate's court on 26 July. Though the magistrate himself remarked that the sedition charge may not stand in this case, in view of the "tense situation", he remanded them to judicial custody till 3 August. On 4 August they were granted bail.

    The detention of Asish Gupta in Assam under the National Security Act (see Part III, Chapter 7), is also of particular concern in this context.

    Amnesty International is concerned about proposals put forward by the Government of India and recently endorsed by the Law Commission of India, to introduce new anti-terrorist legislation in India. The proposed Criminal Law Amendment Bill which is an amended version of a Bill proposed by the then government in 1995 prior to the lapse of the Terrorist and Disruptive Activities (Prevention) Act (TADA), bears many similarities to TADA but would be a permanent legislation unlike TADA which was reviewed periodically.See footnote 17

    Of specific concern in the context of this report, is the proposed Section 4(1) of the Criminal Law Amendment Bill. This Section refers to punishment for "disruptive acts" and has an extremely broad definition including "questioning" "directly or indirectly" "by act or speech or through any other media or in any other manner whatsoever" "the sovereignty or territorial integrity of India". While sub- section (1) contains a specific proviso that "trade union activity or other mass movement without the use of violence or questioning the sovereignty or territorial integrity of India or supporting any claim for the cession of any part of India shall not be deemed to be a 'disruptive act'", Amnesty International believes that this provision is dangerous and could lead to the prosecution of people for the peaceful exercise of their right to freedom of expression of political or other conscientiously held views -- a fundamental freedom guaranteed in the Indian Constitution as well as the ICCPR -- as it did under TADA.

c.     Preventive Detention

Human rights defenders are regularly subjected to preventive detention as a means of removing them from the site of planned protests. While provisions exist under the ordinary criminal law allowing for preventive detention, human rights defenders are also detained under special legislation enacted to grant special powers to the security forces to detain individuals whose actions are considered to be a threat to the national security of the country.

    Article 22 of the Constitution of India lays down a justiciable fundamental right that provides safeguards for detainees. Article 22(1) and (2) of the Constitution obliges the authorities to bring anyone who is arrested before a magistrate within 24 hours of arrest and to permit him/her to consult a lawyer of choice. However, Article 22 contains a number of limitations that authorise preventive or administrative detention: clause 5 of the article lays down that these rights do not apply “to any person who is arrested under any law providing for preventive detention”. Preventive detention laws by their very nature deny the detainee the right to be tried and to be tried “within a reasonable time” as no charges are brought for which the detainee could be tried.

    The Human Rights Committee has expressed concern at India's reservation under Article 9 of the ICCPRSee footnote 18 and the widespread use of special powers of detention.See footnote 19

     Section 107 of the CrPC states that "When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit."

    Human rights defenders are regularly detained on condition of furnishing a bond under section 107 of the CrPC (see below). Given that many of those detained under section 107 are detained for the peaceful exercise of their politically held views, human rights defenders regularly refuse to furnish a bond on principle and remain in detention for several days before release. According to human rights activists, when executive magistrates (who are sometimes police officials) wish to detain a person for any length of time they can refuse to accept sureties or raise the price. In 1984 concern was expressed by the Delhi High Court about Section 107 which judged that "quite sometime the powers under Section 107 are invoked quite rashly thus causing great deal of avoidable suffering. The Executive Magistrates are also police officers and by their very nature and training find it difficult to demarcate their dual functions as the custodians of law and order and as a protector of the human liberty."See footnote 20

     Section 151 of the CrPC states that:
"(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force."

    Section 151 of the CrPC is used to detain individuals throughout the country on extremely flimsy grounds. It is used to detain so-called “habitual offenders”, but is also used to preventively detain those involved in peaceful demonstrations and human rights defenders. In Maharashtra section 151 has been amended to include provision for detention for up to 15 days (section 151(3)).

    On 20 August Medha Patkar, leader of the Narmada Bachao Andolan (NBA) [Movement to Save Narmada] went to Bijasen village to offer her support to the remaining protesters. However, while attempting to address the protesters, she herself was arrested under section 151 of the CrPC. She was held at a Forest Department Guest House at Rukhar, Seoni district and was not brought before a magistrate within 24 hours as the law dictates. By an Executive Magistrate order under Section 151 CrPC, she was told that she would be kept in custody until 4 September unless she gave surety of Rs.10,000 [$US230] and an undertaking that she would not lead an agitation for a year. Petitions were filed in the Madhya Pradesh High Court challenging her "illegal detention". On 30 August, the Madhya Pradesh High Court held her arrest to be illegal and ordered her release.

    In a judgement in 1985 the Bombay High Court had held that section 151 should not be used in the guise of maintenance of law and order or to oppress social action groups. See footnote 22 In an order of 29 September 1999 the sessions court in Nandurbar, Maharashtra, ruled that agitations like those undertaken by the NBA could not be restrained in view of the fundamental rights under the Indian Constitution. The order quashed the arrest of Medha Patkar and other NBA activists under section 151 of the CrPC pointing out that there were no specific allegations against NBA activists. Despite these judgements clearly questioning the right of the state to detain those engaging in peaceful protest, arrests of human rights activists under section 151 of the CrPC continue.

    India's police are governed by a variety of colonial legislation dating back to the 19^th Century. One such is the Bombay Police Act of 1951 which is in force in the states of Maharashtra and Gujarat. Section 37 of this Act has been used extensively to preventively detain protesters including those protesting against construction of the Enron power project in Maharashtra during 1998.See footnote 23

    Sub-section 4 of Section 37 empowers the police or District Magistrate to "by public notice temporarily reserve for any public purpose any street or public place and prohibit persons from entering the area so reserved except under such conditions as may be prescribed by such authority".

    During 1997 human rights defenders and villagers protesting against the Enron project were routinely arrested under section 135 of the Bombay Police Act which provides for imprisonment for up to one year and a fine for those disobeying orders made under section 37 of the Act. Amnesty International concluded that the imposition of these sections of the Bombay Police Act had been used to suppress peaceful protests in Ratnagiri district, Maharashtra, leading to the temporary imprisonment of hundreds of people whom the organization considered to be prisoners of conscience, arrested solely for the peaceful expression of their beliefs.

     The National Security Act, 1980 (NSA) permits administrative detention for a period of up to one year. In considering India's second periodic report in 1991, members of the UN Human Rights Committee were convinced that the NSA derogated from rights guaranteed under the ICCPR -- notably article 9. The Committee observed that under section 8(2) of the NSA, the authorities may decide not to disclose the grounds on which people have been detained, in direct contravention of article 14(3)(a) of the Covenant. Amnesty International continues to urge the Government of India to review the NSA with a view to removing all provisions which are incompatible with international covenants to which India is a party.

    In the context of an increase in the rhetoric of national security by the present government, Amnesty International has been concerned to receive information about the detention of individuals under national security legislation. Amnesty International acknowledges the right of the state to defend its borders and protect its citizens from violence. Nonetheless it is concerned that individuals and groups are being labelled as "anti-national" solely because they are challenging the state through peaceful dissent and defending human rights contained in the Constitution of India and in international human rights standards.

    In Orissa, activist Narayan Reddy, campaigning against the location of a steel plant in Ganjam district of the state, was detained under the NSA on 23 July 1996. Several activists engaged in development activities with tribal communities of Rayagada district of Orissa were reportedly threatened by government officials with detention under the NSA in late 1998 in connection with activities in support of the local tribal community against construction of a bauxite mine (see Casesheet 1).

    Such examples of the detention of human rights defenders under the NSA call into question the Government of India's statement made to the Working Group on Enforced or Involuntary Disappearances in 1997 that "The National Security Act was implemented in periods of crisis in order to protect the citizens against terrorism." See footnote 24

d.     Use of excessive force

Article 12 of the Human Rights Defenders Declaration:
1. Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms.

Many apparently peaceful protests by those defending human rights have been broken up by security forces using excessive force. This takes the form of severe beatings of protesters with lathis, kicking and tearing of clothes, particularly of women protesters.

    Amongst the important principles and prerequisites for the humane performance of law enforcement functions, the preamble to the UN Code of Conduct for Law Enforcement Officials (the Code) See footnote 25 states “every law enforcement agency should be representative of and responsive and accountable to the community as a whole”.

[ A man injured in police actions against those protesting against the construction of the Maheshwar Dam in Madhya Pradesh, 22-24 April 1999. © Private (AI use) ]

    Article 1 of the Code states that “Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts”. The Code emphasizes the exceptional nature of the use of force, stating in Article 3 that force may be used " ...only when strictly necessary and to the extent required for the performance of their duty". Amnesty International is concerned that the practices of security officials in suppressing protest in India do not reflect the standards set out in the Code (see Casesheets 2 and 3).

    Article 7 of the ICCPR, to which India is a party, prohibits the use of torture or cruel, inhuman or degrading treatment or punishment. This prohibition is further reinforced by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which India has signed, thereby indicating its commitment to ratify.

[ Women activists being sat on in a jeep by police following a demonstration in Saharanpur, Uttar Pradesh, 25 June 1997. © Private (AI use) ]
    On 25 June 1997 between 40 and 50 women gathered together peacefully in Ghantaghar, Saharanpur in Uttar Pradesh, to protest against the treatment by police of Zeenat Naaz, President of the Deoband Municipal Board and representative of several local women's organizations. Around 200 police charged into the protesters. Several of the women were beaten on their chests and legs with lathis and rifle butts. They were kicked and thrown inside police jeeps where they were again beaten. Several lost consciousness. Some of the women said that police had beaten them on their genitals. At least 10 of the protesters were taken to hospital where they were kept under heavy police guard and placed under arrest on several charges including "rioting", "assault" and "criminal intimidation". Those arrested alleged that police forced them to provide thumb prints on blank paper before releasing them on bail.

    In 1997 Amnesty International documented the ill-treatment of those protesting against the construction of the Enron project in Maharashtra. On 21 February 1997, villagers from Pawarsakhari village protested by rasta roko [road block] against two state cabinet ministers who were reportedly attempting to by-pass it by using an alternative route. A battalion of the Special Reserve Police (SRP) arrived and charged at villagers with lathis. Several people were beaten by members of the battalion and 96 people were detained. During protests which took place on 15 May 1997, the police, including the SRP used excessive force against the protestors:
"The police and SRP personnel stationed at the project site lathi-charged and dragged women protestors by their hair into waiting police vans. Many women protestors also reported that they were roughed up and manhandled by the police and their dresses and sarees were torn in the process."See footnote 26

Police firing

    The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials See footnote 27 state that force may only be used in exceptional circumstances, only when strictly necessary if non- violent means remain ineffective, and for the purpose of prevention of crime and effecting or assisting lawful arrest. Principle 5 states that whenever the lawful use of force and firearms is unavoidable, officers shall:
    (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;
    (b) Minimize damage and injury, and respect and preserve human life.

    A complex web of rules and regulations govern the use of force to disperse assemblies in India. Powers to resort to force are provided in Sections 129-131 of the CrPC and rest with an Executive Magistrate, the officer-in-charge of a police station or, in his absence, a police officer at least of the rank of Sub-Inspector. However, policing and public order are State subjects under the Seventh Schedule of the Indian Constitution and therefore guidelines for the use of firearms by police exist in numerous and varied regulations in different statesSee footnote 28 .

    During a visit to Mumbai in January 1994 to research human rights violations in the context of communal riots which took place in December 1992 and January 1993, the Director General of Police explained to Amnesty International delegates that in cases where demonstrators or mobs resort to arson, looting, plunder or stabbing, the procedure is for the police first to issue a warning, then to carry out a lathi-charge, then to employ tear gas, and if a threatening situation continued, finally to give a warning before firing. Fire has to be aimed below the belt. The police have to file a report with the police station concerned, specifying what type of force had been usedSee footnote 29 . These provisions are laid down in the Model Rules regarding the Use of Force by the Police against Unlawful Assemblies, 1973 (referred to as the Model Rules) which specify that firearms should be employed "only in extreme circumstances when there is imminent and serious danger to life or property", that the senior officer "shall, unless circumstances make such action impossible, warn the crowd that if they do not disperse within the specified period, fire with live ammunition will be opened on them" and that he should ensure "that no firing contrary to or without orders takes place... whatever volume of fire is ordered, it shall be applied with the maximum effect. The aim should be kept low and directed at the most threatening parts of the crowd."

    In West Bengal, police are governed by the Police Regulations of Bengal, 1943, which allow for use of firearms by police as a right of private defence, to disperse unlawful assemblies and to effect arrest. Regulation 153(c) relating to the dispersal of an unlawful assembly states: "An order to fire upon a crowd should be regarded as an extreme measure to which recourse should be had only in the last resort when it is absolutely necessary for the defence of life or property or when a Magistrate, an officer-in-charge of a police station or police officer superior in rank to such officer considers it impossible to disperse a mob by any other means." Regulation 154 provides that a warning should be given, that "firing should always be controlled and directed at a specified target", that "no greater hurt than is unavoidable should be inflicted" and that "firing should cease as soon as its object is achieved". The only reference to the direction in which police should fire is given in Regulation 155(b) which states: "He [the police officer in command] shall direct the firing in such a way as to secure immediate effect with a minimum of injury. Firing over the heads of the crowd or in any direction except on members of the crowd is strictly forbidden, as being likely both to cause injury to innocent persons at a distance and to embolden the participants in the disturbance by having no visible effect. Before he gives the actual order to fire, he should specify the range, the target and the number of rounds to be fired".

    Amnesty International is concerned that existing rules and practices appear to fall far short of international standards as set out in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which are underpinned by the principle that the absolute minimum force should be used and that there be full accountability for any action taken resulting in the loss of life. Principle 9 strictly prohibits the use of firearms:

"...except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life... and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life."

    The various rules and regulations in force in India however, permit firearms to be used in considerably broader circumstances, not only when there is an imminent and serious threat to life, but also, to property.
    
    On 31 January 2000, two dalit men were killed in Jethuke village of Bhatinda district in the state of Punjab, when police opened fire on hundreds of people demonstrating about high bus fares and the detention of four leaders of the Bhartiya Kisan Union [Indian Farmers Union] (BKU) who were representing villagers in negotiations with the district administration on the issue.

    That morning, negotiations between the district administration and four BKU leaders -- Jhanda Singh Jethuke, President of the BKU, Natha Singh, Boota Singh and Shingara Singh -- broke down. The BKU leaders left the meeting in a jeep but were stopped on the way by police who arrested them. They were taken to Rampura Phul police station and kept there overnight. News of the detention of the leaders spread and led to a gathering of villagers in Jethuke. Villagers staged a dharna on the railway track demanding the immediate release of the leaders. There was a scuffle with police as they tried to remove the public address system being used by the protestors. Police reinforcements were reportedly sent from Bhatinda. A lathi-charge followed and tear gas was used. At this point demonstrators reportedly started throwing stones at police. Police then reportedly opened fire.

    According to reports, villagers started running towards their homes but police chased them and beat them. Several people were chased into the Gurudwara [Sikh temple] which was then sealed by police. Police prevented the Ardas [daily prayer] from being performed. Firing reportedly continued into the night and injured protesters were rounded up by police and taken away. Several BKU activists were reported to have fled their homes in fear of further police action. Villagers remaining in the village were not permitted to move around and the village was sealed by police. Two men -- Deshpal Singh (aged 18) a BKU activist, and Gurmeet Singh (aged 22) a farmer returning from his farm -- were hit by bullets in the abdomen and died. Several other demonstrators sustained injuries including bullet injuries and others had marks of abrasions, blunt injuries and deep wounds. Several police officers were also injured.

    Police claimed that they were forced to fire in the air and that the two men were shot accidentally. They also claimed that protesters had opened fire on them and a First Information Report (FIR) to this effect was registered against the demonstrators at Bhatinda Railway police station. Villagers have denied this version of events. Press reports subsequently related that police had failed to locate the necessary orders of the Duty Magistrate required for resorting to fire to disperse a mob. They reported official sources as saying that the Duty Magistrate who was present at the spot did not given any order to the police to resort to firing.See footnote 30

    A magisterial inquiry was ordered into the incident which began work on 4 February.

    On 29 May 1999, four fishworkers including a woman were killed and thirteen injured when police opened fire on people protesting against illegal prawn cultivation on Chilika Lake in Orissa.

    Chilika Lake is one of the largest inland brackish water bodies in Asia. The lake was declared to be a wetland of international importance and attempts by large industries to establish industrial scale semi-intensive shrimp farms on its shores were stopped by court injunctions. However, smaller scale shrimp farms began to grow up around the lake leading to environmental damage and problems for local people, particularly the livelihood of fishworkers. The Supreme Court in 1996 ordered that there should be no shrimp farms within 1000 metres of the lake. However, the lake was occupied by "mafias" and shrimp farms constructed, allegedly with the support of local politicians in violation of this order. Protests against these illegal shrimp farms were organized by the Chilika Matsyajibi Mahasangh [Federation of Chilika Fishermans Associations], supported by the National Fishworkers Forum, which on 28 May gave a 24 hour ultimatum to the local administration to demolish all the illegal prawn farming structures. When the administration failed to act to demolish the structures, the fishworkers themselves reportedly destroyed around 11 prawn farms. Police raided Sorana village at midnight that evening. They reportedly beat many of the villagers, threw tear-gas shells and finally opened fire.

    An outcry followed this incident and there were calls for a judicial inquiry. However, the terms of reference of the judicial inquiry were reportedly finalised only on 5 July, over a month after it was ordered to investigate by the government. On 6 July the Chief Minister of Orissa announced that the government would enact a stringent law to curb prawn farming in Chilika lake: too late for those fishworkers who died in the firing.

    Article 22 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials requires:
"...Governments and law enforcement agencies shall ensure ...that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death or serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control."

    It is not clear whether all rules and regulations in India require a detailed report to be filed by police following the use of firearms. Regulation 157 of the Police Regulations of Bengal, 1943, requires that an executive enquiry be instituted to ascertain whether the firing was justified and whether the regulations were obeyed. However, the regulations make it clear that this is merely a departmental enquiry.

    Amnesty International believes that existing rules that govern the use of force and firearms by police in response to assemblies should be reviewed and amended to bring them into full compliance with the UN Basic Principles on the Use of Force or Firearms by Law Enforcement Officials. Specifically, the government should ensure that any such rules and regulations permit no more than the minimum use of force and require full accountability for any action taken resulting in loss of life, by obliging anyone resorting to lethal force to file detailed reports on the incident. Failure to do so should attract prompt sanction.

    Amnesty International also believes that the government should institute a public order training program for all police aiming to ensure that no more than the minimum damage and loss of life occurs during control of disturbances. Further, the police should be adequately equipped to employ non-lethal methods of crowd control.

e.     The use of false criminal cases

An alarmingly high number of human rights defenders with whom Amnesty International consulted during 1999 indicated that they had criminal charges pending against them which were filed as a means of harassment by powerful interests who oppose their activities. While Amnesty International does not condone criminal activity including violence against property or persons, the organization is concerned when there is clear evidence that criminal cases are filed maliciously against human rights defenders as a means of harassing them.

    One such example is Vivek Pandit, of Samarthan and Shramajeevi Sanghatana, who has had scores of criminal charges filed against him. Samarthan provides legal literacy training in Thane district of Maharashtra and Shramajeevi Sanghatana works against bonded labour. In 1996 he and eight other activists were charged under section 302 (murder) of the Indian Penal Code (IPC). This case is still ongoing. To date [April 2000] he has around 15 criminal cases pending against him -- the majority in connection with protest demonstrations in which he has been accused of obstructing public servants.

    Adivasi villagers had been occupying an area of land in Murbad taluka in Thane district for many years. This occupation was challenged by several Mumbai businessmen who claimed the land for themselves and attempted to forcibly occupy it on 18 August 1999. The SMS had approached the local administration over the issue but had received no response. It had then approached the Mumbai High Court in a writ petition but the High Court had reportedly directed them to "approach an appropriate forum". Villagers described how on 18 August the businessmen and a group of around 40 people including security guards approached their fields. Several are reported to have had guns and spears. Fearing that their crops were going to be destroyed, the villagers ran to protect their crops and a scuffle ensued. A shot was reportedly fired by a security guard. Charges under sections 307, 323, 336, 147, 148, 149 and 447 of the IPCSee footnote 31 and sections 37(1) and 135 of the Bombay Police Act were filed against Vijay Sathe and the villagers. Vijay Sathe was further accused of having incited the tenants of the land to commit these crimes at a meeting held the previous day. Vijay Sathe was not present during the incident on 18 August and denies the allegation that he incited the villagers.

    Police reportedly visited the village regularly for three days after the incident and detained around 19 people including women and children, many of whom were not present during the incident. Several are reported to have been beaten by police while being arrested. One woman testified to a fact- finding team of human rights activists who visited the village in October:

"My name is [name witheld]. I live with my husband, son and daughter-in-law. Being landless we work on other peoples' fields for a living. I do not know anything regarding the incident. We returned home from work at around 5 to 6pm. On the second day after the incident, while I was working at home, the police took away me, my husband and my daughter-in-law to the police station. At that time my daughter-in-law was five months pregnant... The lady police constable slapped her on her cheek. Our names were not in the FIR, yet we were arrested and kept in jail for 22 days, when we were released by the court".

    The 19 were released on bail by the court after being in detention for six days in police custody and sixteen days in judicial custody on condition that they appeared at Murbad Police Station every Thursday and Sunday.

    The state of the criminal justice system in India ensures that it is easy for false cases to be filed against individuals as a means of harassment. Political influence over the police not just by politicians but by powerful individuals such as landowners or businessmen, ensures that registering such cases is relatively simple. Political influence over the police is viewed as one of the foremost causes of abuse within the criminal justice system. While there is a growing awareness of the need for institutional reform to change this reality -- a campaign for police reform has recently been initiated by several human rights groups including the Commonwealth Human Rights Initiative -- the evidence indicates that there has been little political will over the years to implement reform. The National Police Commission appointed in 1977 which issued a series of eight reports between 1979 and 1981 recommending wide ranging police reform itself pointed to the problem of false cases: "It is generally known that false criminal cases are sometimes engineered merely for the sake of making arrests to humiliate and embarrass some specified enemies of the complainant, in league with the police for corrupt reasons." See footnote 32 While it did not suggest remedies for this particular problem at the local level it did recommend the establishment of a State Security Commission as a guard against political influence over police at the higher levels. This recommendation is still pending. A decreasing conviction rate and repeated strictures by the courts concerning malicious prosecution and neglect by prosecutors in developing cases reinforce these concerns. Amnesty International believes that the harassment of human rights defenders by powerful interests through the filing of false criminal cases will continue for as long as the Government of India fails to address the failures of the criminal justice system -- notably the impact of political influence over the police.

    Given that cases can take years to proceed through the courts, the impact on those obliged to defend themselves against criminal cases can be huge both in terms of time and financial and other resources. While many human rights defenders are granted bail by the courts, they are still obliged to prepare and present their defence and attend hearings for periods of several months if not years. This has an enormous impact on grass-roots activists living and working in rural areas often hundreds of kilometres from the place where the hearings are taking place. Days of work are lost, carrying with it financial consequences for those already economically disadvantaged. The case of the Adivasi Mukti Sangathan [Tribal Liberation Movement] in Madhya Pradesh (see Casesheet 4) is symptomatic of the problem. Amnesty International is also concerned about the vulnerability of human rights defenders to torture and ill-treatment when detained on these charges.

    In July 1998, a series of criminal cases were filed against members of the Bal Rashmi Society, an organization concerned with the relief, welfare and development of socially and economically disadvantaged women and children in Rajasthan. In the months that followed, the head of the organization, Alice Garg, had a total of seven cases filed against her for non-bailable crimes relating to rape, murder, attempt to rape and attempt to murder. Fellow workers and members of Alice Garg's family were also targeted with criminal cases. In addition, three activists were subjected to torture in detention in August. Abdul Sattar, one of the activists was reportedly stripped naked and beaten by up to 10 police constables. His torture, over a period of five days, included electric shock treatment to his hands, feet and genitals. The three detained activists were reportedly threatened by police and made to confess to serious crimes, including rape and fraud, for which charges were then filed against them and to testify against fellow activists including Alice Garg.

    Alice Garg herself went into hiding, fearing arrest and torture by police. The accused throughout maintained their innocence, alleging that cases had been filed against them maliciously at the instigation of the ruling government in an attempt to discredit the organization whose activities it opposed. In September 1997, Alice Garg had been involved in a campaign to bring to justice those responsible for the alleged rape of a woman at the J.C. Bose Hostel in Jaipur by 15 people, including a Deputy Superintendent of Police. The campaign focussed on the failure of the police to arrest suspects and was critical of the role of the BJP state government.

    Lawyers for the accused presented compelling evidence in several of the cases that the complaints filed against them were false including testimonies of complainants that they had been forced to file complaints with police. After much international pressure and intervention from the National Human Rights Commission (NHRC) and following state elections in which the BJP government lost power and a Congress government was elected, the Criminal Investigation Department (CID) of the Rajasthan police was asked to reinvestigate several of the cases in early 1999. In the majority of the cases the CID recommended that the cases be quashed. However four of the Bal Rashmi activists originally detained remained in custody with bail denied until 3 January 2000 on the orders of the Bassi magistrate who judged that they were also charged in other cases. The magistrate's order reportedly commented that Alice Garg was a Christian and claimed that she was engaged in converting people. The High Court of Rajasthan subsequently found that the actions of the magistrate had been wrong: "The police, after thorough investigations of the offences alleged to have been committed in the case, had found no role therein of the present petitioner(s)... It seems to me that the change in political administration in the State... has influenced his [the magistrate's] opinion"See footnote 33 and the four activists were released on bail.

    On 20 November 1998 three social activists working for the Vindhya Vikas Lok Sanghatan (VVLS) [People's Organization for Development of Vindhyas] -- Rajkumar, Ramavtar and Murlidhar -- were called to the Badausa Police Station in Banda district of Uttar Pradesh by the Station House Officer on 20 November 1998, in connection with a case that was pending in the Allahabad High Court against one of them. During interrogation, the three men were reportedly beaten. Medical reports indicate that the men sustained injuries caused by a blunt object.

    On 21 November, the three activists were again called to the Badausa police station where the Station House Officer threatened them to stop their activities with VVLS and leave the area. The three activists approached the Superintendent of Police (SP), Banda with a complaint about their treatment and met with him on 24 November. The three men then approached the Chief Judicial Magistrate, Banda, who on 16 December ordered that a case be registered against the Station House Officer of Badausa police station.

    However, on 18 December, several cases were filed against the three activists under sections 406, 420, 467, 468, 504 and 506 of the IPCSee footnote 34 in Badausa police station. The activists alleged that the cases were falsely filed at the instigation of the Station House Officer who also reportedly made threats to “eliminate” the three men in an “encounter”.

    Amnesty International is concerned at reports that human rights defenders are regularly charged under section 153A of the IPC ["promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste, community etc. and doing acts prejudicial to maintenance of harmony"] indicating that this section has been used to punish human rights defenders engaged in challenging discriminatory religious, racial, caste and other practices.

    Section 211 of the IPC makes it an offence to "institute or cause to be instituted any criminal proceeding" against a person, "knowing that there is no just or lawful ground for such proceeding or charge against that person". It must be shown that this was done "with intent to cause injury" before proceedings can be initiated against someone accused under this section. In some cases human rights defenders have filed counter-cases of harassment against police. However, this has additional consequences in terms of time and resources. On occasion, public pressure to force the authorities to withdraw false cases against individuals have been successful but it is rare for the authorities to simply drop a criminal case without the judicial process having been gone through which can often take years. Meanwhile, the work of human rights defence suffers.

f.     Contempt of court

There is some concern at the use by the judiciary of the law of contempt of court (covered by the Contempt of Courts Act, 1971) in order to stifle legitimate dissent against judicial orders. In July 1999, the Supreme Court took offence at the writings and action of author Arundhati Roy (in publishing her article The Greater Common Good) which referred to Supreme Court orders on the Narmada dam issue:

"Ms Arundhati Roy is not a party to the proceedings pending in this Court. She has, however, made comments on matters connected with the case being fully alive to the pendency of the proceedings in this Court. The comments made by her are prime facie a misrepresentation of the proceedings in this Court. Judicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a blatant manner in which it has been done by her... freedom of speech and expression does not include freedom to distort orders of the Court and present incomplete and one sided picture deliberately which has the tendency to scandalise the court... The right of criticising, in good faith in private or public, a judgement of the court cannot be exercised with malice or by attempting to impair the administration of justice... We are unhappy at the way the leaders of the NBA [Narmada Bachao Andolan] and Ms Arundhati Roy have attempted to undermine the dignity of the court. We expected better behaviour from them" See footnote 35 .

    While passing this opinion, the Supreme Court stopped short of initiating contempt proceedings against Arundhati Roy and the NBA but warned them not to continue to make such statements.

Article 13 of the Human Rights Defenders Declaration
Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration. g.     Control over resources    

In contravention of Article 13 of the Human Rights Defenders Declaration, the Government of India has used the law to strictly regulate the flow of resources to human rights and other non-governmental organizations. There has been increasing concern in recent years about the use of such regulations to withhold funds from those organizations which may be critical of government policy. Amnesty International believes their use in this way also in practice leads to violations of the right to freedom of association (a right guaranteed in Article 22 of the ICCPR to which India is a party) as the existence and survival of many organizations relies on the resources that foreign funding brings to them. This right has also been reflected in Article 5(b) of the Human Rights Defenders Declaration.

    Registration under the Foreign Contribution (Regulations) Act, 1976 (FCRA) is required by NGOs seeking foreign funds for their activities and is controlled by the Home Ministry. Only those NGOs registered with the Ministry of Home Affairs are allowed to accept foreign contributions "to further any cultural, economic, educational, religious or social programme". Section 5(1) of the FCRA prohibits all organizations of a political nature from accepting foreign contributions without the Central Government's prior permission. Section 6 requires registration of all associations accepting foreign contributions with the Central Government. While, as mentioned earlier, many human rights organizations are opposed to the idea of receiving foreign funds, there are many NGOs who rely, at least for part of their programs, on international funding.

Article 22 of the ICCPR:
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

Article 5(b) of the Human Rights Defenders Declaration:
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:
(b) To form, join and participate in non- governmental organizations, associations or groups;     The process of registration is extremely lengthy and intrusive and the Home Ministry has wide powers to deny registration on vague grounds. Section 10 allows the Central Government to prohibit the receipt of foreign contributions if it is satisfied that it is likely to affect "prejudicially", (i) the sovereignty and integrity of India; (ii) the public interest; (iii) freedom or fairness of election to any Legislature; (iv) friendly relations with any foreign State; (v) harmony between religious, racial, linguistic or regional groups, castes or communities. There are serious allegations that the current BJP government has used its influence to target organizations which are critical of its policies and discriminated against organizations with real or imagined links to non-Hindu agendas. The rhetoric of groups such as the Rashtriya Swayamsevak Sangh (RSS) [Association of National Volunteers] and the Vishwa Hindu Parishad (VHP) [World Hindu Council] with direct links to the ruling BJP political party alleging the funding of Christian organizations by foreign agencies for the purpose of conversion has heightened tension over this issue in recent months.

    During the hearing of India's third periodic report under the ICCPR in July 1997, members of the Human Rights Committee questioned the Government of India delegation as to why the responsibility for monitoring funding of NGOs lay with the Ministry of Home Affairs. The response of the delegation was evasive -- that it was difficult to answer as the rules of business of the government are decided by the Cabinet -- but pointed out that there was a relationship between the Ministry of Home Affairs and "matters that pertain to matters of a political and security nature when it comes to the activities of various groups."See footnote 36

    In September 1999, several organizations questioning BJP policy on rights issues -- in this case gender discrimination -- through a high-profile advertisement campaign were issued notices by the Ministry of Home Affairs. The notices asked the organizations to show cause as to why action should not be taken against them for violating provisions of the FCRA by engaging in "political activity". Newspapers reported that an NGO in Gujarat registered under the FCRA had received a notice in error as it had had nothing to do with the advertisement. An organization with the same name in Delhi, which is not registered under the FCRA, was associated with the advertisement. The editors of Communalism Combat, a publication devoted to addressing communal issues, who were behind the advertisements reportedly received abusive phone calls and letters. On 25 September a press statement was issued by the BJP General Secretary alleging that "certain NGOs" were conducting "malicious propaganda against BJP... with the support of funds being pumped in by foreign countries. It means that foreign money is being used to oppose a nationalist party (BJP) which stands for the interest of the country... This amounts to interference in the electoral process of this country by foreign money power. This constitutes a threat to Indian sovereignty." The statement called on the government to investigate the funding of the organizations and prosecute them for violation of the FCRA. Show cause notices were issued by the Ministry of Home Affairs on 27 September, two days after this statement was made.

    Other Delhi-based groups including Voluntary Action Network India (VANI) and the Indian Social Institute (ISI) who were not signatories to the advertisement were also served show cause notices. They apparently endorsed a pamphlet, "People's Agenda for the General Elections 1999", which was critical of the BJP-led coalition's record in government. In February 2000 several of the organizations received further notices from the Ministry of Home Affairs stating that their accounts would be audited.

    Amnesty International believes that clear and objective criteria for deciding whether funds from foreign donors would be acceptable or not should be published and that powers to regulate the flow of foreign funds for human rights and development activities should be transferred to an independent authority.

    The torture and ill-treatment of human rights defenders has been of particular concern in areas of armed conflict (see Part III, Chapter 7). Many human rights defenders in these areas have been "disappeared" or extrajudicially executed. However, torture, ill-treatment and excessive force amounting to ill-treatment by security forces has also been used more widely throughout India, particularly in the context of suppressing peaceful protests (see previous chapter).

    On 26 March 2000, two members of the Siliguri branch of the Association for the Protection of Democratic Rights (APDR) were reportedly beaten by police. The two men -- Asim Chakrabarty and Vivek Sarkar -- went to the Siliguri police station at 10pm to make a complaint to police about a case of harassment which had been brought to them. The officer-in-charge of the police station reportedly verbally abused them and stated that the APDR needed to be taught a lesson. As they were leaving, he hit them with a stick and other police joined him. Asim Chakrabarty's arm was twisted and reportedly broken and Vivek Sarkar was thrown in a ditch after being beaten. The two men were admitted to hospital where they received treatment for their injuries. A case was filed against them for attacking the police station.

    The branding of human rights defenders as members of armed groups is common in areas of armed conflict. However, the branding of human rights defenders as "anti-national" has extended throughout the country. This has a severe impact on their work as they often rely on the support of the local community in carrying out their functions. Defamation by state and non-state groups -- notably in recent years by right-wing Hindu groups -- has stigmatized many human rights groups (see in particular Part III, Chapter 6) and led to the filing of false criminal charges and in some cases incidents of violence. The failure of the state to support the work of human rights defenders and to denounce the defamation of legitimate human rights activities leads to those engaging in such defamation feeling that they can carry out their activities against human rights defenders with impunity.

    Intimidation of human rights defenders has taken many forms. This is explored in the next chapter in particular in relation to human rights defenders accessing international mechanisms and raising human rights concerns outside the country. However, intimidation of human rights defenders is also prevalent at the grass-roots level where local goondas [criminals] are often hired by vested interests (most commonly landowners, mafias and companies) to intimidate those organizing communities to defend their rights against exploitation and other forms of abuse (see cases in Part III and Casesheets in Appendix I). Human rights defenders have also been harassed by their employers as a result of their work.

    In 1993 Dr Vineeta Gupta, a medical officer in the Punjab government health service and member of the Punjab unit of the People's Union for Civil Liberties (PUCL), represented the PUCL in a complaint to the NHRC concerning allegations of the molestation of a female officer by a Punjab government minister. She also attempted to take a stand against corruption within the government health service. As a result of these activities Dr Gupta was transferred eight times between May 1992 and August 1995 and her professionalism was routinely questioned. A chargesheet was filed against her on the basis of a minor complaint in a case which continued for three years. She was suspended for one-and-a-half years on half pay. The NHRC took up her case and carried out an investigation which found the Punjab government guilty of harassment. Dr Gupta was also the petitioner in a case against the State of Punjab filed in the High Court in January 1997 calling for the removal of instruments of torture from police stations, Central Intelligence Agency Staff Offices, interrogation centres and police posts in the state of Punjab.See footnote 37 Dr Gupta was finally forced to resign from her job.

    The monitoring of human rights activities has been dealt with to some extent in the previous chapter in the form of regulation of resources as well as in the next chapter -- in relation to international activities. The offices of human rights organizations are regularly visited by Intelligence Bureau officials asking for information about their activities. Many of these visits are carried out by officials who refuse to provide details of their identity. Intelligence Bureau officials were present either before, during or after all the meetings held by Amnesty International with human rights defenders during 1999.

Article 17 of the ICCPR:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.     On 5 June 1999, G.M. Butt, Deputy Bureau Chief of the Institute of Kashmir Studies, was stopped as he and his wife and three children were going in a car to the New Delhi airport to fly to Srinagar. He was manhandled and dragged from the car by some 12 to 15 men in plain clothes and taken away. He was not told who they were or why he was being taken away and his family was not informed of his whereabouts thereafter. On the evening of the same day, police announced that they had arrested G.M. Butt on the suspicion that he was carrying funds for 'Kashmiri militants'. He was released on the next day on a personal bond as there was no evidence against him. The only charge filed against him was for resisting arrest. G.M. Butt had believed himself abducted as none of the police had identified themselves or wore uniform.
    In response to this incident, the South Asia Human Rights Documentation Centre (SAHRDC) based in New Delhi issued an urgent appeal dated 5 June. This led to a series of visits by members of the Special Branch of the New Delhi police in the following days, claiming to be following up the case but requesting details about those working at SAHRDC, whether or not it was a registered organization and about SAHRDC's association with G.M. Butt.

The right to redress is also clearly articulated in Article 2(3) of the ICCPR to which India is a party and set out in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985).

    The factors referred to below have led to a situation of impunity for human rights violations which is a major hurdle for human rights defenders in trying to obtain the human rights guaranteed to their constituents in the Indian Constitution and in international human rights standards to which India is a party.

    Besides, impunity also exists for those attacking and harassing human rights defenders themselves (see Casesheet 5). Threats are very rarely investigated and action is rarely if ever taken against those found to be filing politically motivated charges against human rights defenders. In many cases where the state is not directly responsible for harassment, the state hides behind the complexity of the situation in which this happens, arguing that it has been impossible to allocate responsibility and take action against the perpetrators. The pressure on the police and the administration to cover up incidents of violence against human rights defenders is enormous.

a.     The legal route to remedies

Problems with the criminal justice system begin when victims attempt to file complaints with police. Although police are obliged to register complaints of "cognizable offences" in writing under section 154 of the CrPC, it is normal practice for police to refuse to do so, particularly if the complainant is ignorant of legal procedures and/or from a vulnerable social group (including dalits, adivasis and women). The problem is often compounded if the person is filing a complaint against a locally powerful individual who has influence over agents of the state. Prominent local human rights activists with legal knowledge are often requested to accompany individuals to the police station to file complaints and pursue the Superintendent of Police of a district who has powers to order that a complaint (known as a First Information Report (FIR)) be registered. In many of the cases referred to in Part III of this report, police have at least initially refused to file cases on the basis of complaints by activists.

[ An adivasi woman in Maharashtra making a complaint to police.
© Private (AI use) ]
    Once registered, pursuing a case through the criminal justice system can be tortuous. Given the limited resources of most human rights defenders and the crippling delays of the criminal justice system, it is rare for defenders to be able to pursue cases to their conclusion. Cases of death in custody for example can often take up to ten years to conclude. In trials relating to non-state actors, including multinationals also, delays make the system of redress almost obsolete. The case against those allegedly responsible for the gas leak in Bhopal in Madhya Pradesh -- which killed 8,000 people in its immediate aftermath and led to 500,000 more suffering from injuriesSee footnote 39 -- has been going on for 15 years despite vigorous campaigning on the part of lawyers and activists acting on behalf of the victims and their dependents.