A Statement of Two National Seminars on #AFSPA in Bangalore and Delhi


The Indian Parliament enacted the Armed Forces (Special Powers) Act in 1958 as an interim measure with the hope of suppressing the Naga Nationalist Struggle, the only such movement in the North East at that time. It was gradually extended to other North Eastern States and then in 1990 to Jammu and Kashmir.

The Armed Forces (Special Powers) Act is to-date the single most direct instrument violating the democratic rights of the people of the North East and of Jammu and Kashmir. The Act is implemented when an area is declared ‘disturbed’ by either the Central or the State Government.

The Act is under much debate today on several grounds, not only in Jammu and Kashmir and the North East, but also in the rest of India. One, it enables the security forces to “fire upon or otherwise use force even to the causing of death”. Two, according to Section 6, no criminal prosecution can be initiated against the security personnel who take action under this Act. Three, till now, but for a few exceptional cases of public fury or when the security forces were caught in the act by the public, no paramilitary officer or soldier has been prosecuted for destruction of property or murder or rape. Finally, five official commissions and committees have recommended either repeal or drastic review of the Act.

We the participants of these two seminars and other individuals consider this and other such acts a gross abuse of the Constitution. AFSPA has led to atrocities in the North East and Kashmir. Currently, a case concerning 1,528 deaths in alleged fake-encounters in Manipur alone is before the Supreme Court.  Over and above these, one can mention the Thangjam Manorama Devi case in Manipur in July 2004. She was arrested by the security forces and was allegedly raped and killed. Amongst other cases is the attempted molestation near Kokrajhar in Assam, on 23rd December, 2005, of some university students who entered by mistake a compartment carrying Haryana Armed Police personnel. Four students died when the police opened fire on other students who blocked the train after hearing the screams of the students. No action has been taken till today against the perpetrators of these and other crimes. Also many other cases of massacres, mass rapes and torture like the destruction of Oinam village in Manipur in 1987, the killing of some innocent persons in the Pathribal case, the Sophian sexual violence case and the discovery of mass graves in different places in Jammu and Kashmir raise similar concerns.

Many commissions and committees, such as the Justice Jeevan Reddy Committee (2005), the Second Administrative Reforms Commission (2007), the Prime Minister’s Working Group on Confidence Building Measures in Jammu and Kashmir (2007) headed by Shri Hamid Ansari, the Interlocutors’ Report on Jammu and Kashmir (2012) and Justice J S Verma Committee (2013) have recommended that the Act be repealed or amended. Even the Planning Commission in the 12th Five-year Plan document passed by the National Development Council has for the first time ever asked for not only a gendered review of the Act, but also of gendered violence in the ‘Disturbed Areas’, as women and children are the most vulnerable in conflict regions. These voices should be heard because AFSPA is symptomatic of a larger militarization. The negative impacts on human development such as health and education have been extensive so also the scars left by these acts and the negative effects on the psyche of people who live in a situation of low intensity warfare and are treated as unequal citizens

At the international level, India has been repeatedly flagged on the issue of AFSPA in the Human Rights bodies of the UN, including the Universal Periodic Review of the Council, in almost all the major human rights treaty bodies and Special Procedures. It is clear that the Act has not served its purpose. But the Government of India has not even amended the Act for more than 50 years. A reason given by Finance Minister P. Chidambaram in a speech in New Delhi on February 6, 2013 is that there is no consensus because both the retired and present army generals oppose even the idea of making it more humane.

Why does the army oppose the repeal or even amendment of this inhuman Act? Is it because they want to protect their personnel who abuse power? Surely, as the Verma Committee (2013) has remarked, the armed forces cannot expect impunity for actions such as rape, which are not in the line of duty. Can a democratic country tolerate such an anti-democratic Act? The situation in Jammu & Kashmir and the North East is complex and can be resolved only through a political process and dialogue. Those decisions cannot be taken by the army. The elected representatives have to take decisions that should include Confidence Building Measures (CBM). That is impossible when such abuses under a draconian Act continue. The rights of the people must be protected by judicial and official / administrative processes such as grievance cells that protect the right to information of relatives of detainees.

The security situation in most areas where the Act is in place has improved enormously in the last decade because of ongoing peace processes and civil society initiatives. So the stated purpose of the Act no longer exists. The security forces cannot presume that they have an unfettered right to continue using the Act in perpetuity. There has to be sunset date in these legislative measures. Continuing such Acts indefinitely would be undemocratic and violative of human rights. As a result of such violations a trust deficit has developed between the people of the North East and Jammu and Kashmir on the one hand and the rest of India on the other.

In addition, major state legislative measures exist in Jammu and Kashmir and Nagaland such as the Jammu and Kashmir Public Security Act and the Nagaland Security Regulations Act which are no less arbitrary. They provide the police with impunity. Such laws no longer have a place in our democratic polity, especially after the extensive peace processes in these states. We, therefore, call on States like Jammu and Kashmir and Nagaland that have been demanding the repeal of AFSPA to take a lead in changing the undemocratic tenor of the legal regime. We call upon all political parties and political candidates, including the major regional parties, to take a position on the repeal of AFSPA in the run-up to the general elections.

It is critical that a civil society alliance takes up a robust programme of advocacy and dissemination especially through the media. As a step towards it, we the 90 participants of the Seminar on AFSPA held at Indian Social Institute, New Delhi on 6th April 2013, and sponsored by ICSSR (NCR) and 160 persons present of the seminar held at Indian Social Institute, Bangalore on 13th April, 2013 demand the immediate repeal of AFSPA. We also demand that, that the armed forces be brought under the purview of the civilian government with no impunity.

Dr Joseph Xavier                                                                       Dr George Mutholil

Executive Director                                                                    Director

Indian Social Institute, New Delhi                                           Indian Social Institute, Bangalore

With Partner organisations and individuals

Human Rights Alert, Imphal, Centre for Policy Analysis, New Delhi, North Eastern Social Research Centre, Guwahati, Altternative Law Forum, Bangalore, Mithra Foundation, Bangalore, NAPM, PUCL Karnataka, National Council of Churches in India, Nagpur, SCM, Bangalore, St Joseph’s College, Bangalore, Openspace, Bangalore, Vistaar, Bangalore, The Other Media, New Delhi, NAPM-Karnataka, Women’s Department, UTC, Bangalore.

Individuals

Ms Patricia Mukhim, Shillong, Mr Bashir Manzar, Srinagar, Ms Nandita Haksar, Goa, Mr Sanjoy Hazarika, New Delhi, Prof. Anuradha Chenoy, New Delhi, Prof. Ritu Dewan, Mumbai, Kamayani Bali Mahabal, Mumbai.

 

UNHCR rapporteur calls for repeal of AFSPA in India


The much-criticized Armed Forces Special Powers Act known as the A-F-S-P-A used by India in Kashmir and troubled northeastern states has once again come under fire — this time by the UN.

The body has asked for an immediate repeal of the controversial law throughout the troubled zones.

Rashida Manjoo, the Special UN Rapporteur says the act, which has been blamed for arbitrary executions in Kashmir and seven northeastern Indian states, gives sweeping powers to troops to arrest, search and even shoot people with impunity from local laws. She believes the act violates international laws.

India introduced AFSPA in 1958 to put down separatist movements in the country’s northeast which extended to most parts of Indian-administered Kashmir soon after the outbreak of armed insurgency against New Delhi’s rule in 1989.

Hafiza is one of the many thousands of victims hit hard by the Armed Forces Special Powers Act. Her 15-year-old son was taken away by government forces in Kashmir and his whereabouts remain unknown to date.

Manjoo was in India to assess the situation of violence against women. The UN expert’s visit to India comes at a time when violence against women has increased exponentially in India’s capital as well as other cities.

According to the national crime records in India, rape cases more than doubled between 1990 and 2008. Statistics show 228,650 of the 256,329 victims of violent crimes recorded in the country last year were women. The conviction rate for rape cases in India is 26%. Investigations also reveal every 20 minutes one rape happens in the country. Despite the increase in sexual violence, the number of convictions is falling.

Human rights defenders have repeatedly requested the Indian government to revoke the Armed Forces Special Powers Act. But the administration still seems least interested in responding to the calls and this has created an atmosphere of impunity and lack of accountability for the crimes security forces have perpetrated… Shahana Butt, Press TV, New Delhi, India

 

Indian Army –Magic Formula to have beautiful and successful daughters ? #WTFad #AFSPA #Kashmir #Manipur


Dear Indians

Do you want a daughter ? No of course not, why will you want a girl child , she is such a burden and a son will only carry on the family name etc etc… blah blah.

Oh No  !  you dont want to have a  girl child !!!

Well  in shillong specifically and allover india generally, the  Indian army  is giving the incentive, to have a girl child. Wow, this advertisement will go a long way in balancing child sex ratio ?  and it might also give impetus to the ‘ Laadli Campaign, which is in deep shit for now, 42% girls dropped from Laadli scheme over 2 years

army

So above in the advertisement you see—  PRIYANKA  Chopra, Gul Panag, Preity zinta,  Anushka  Sharma , Celina Jaitley , Simmi Garewal,  Amrita singh, Chitrangadha , Sakshi Tanwar, and it says -‘If you want to have beautiful and successful daughters  join INDIAN ARMY”,.

Now , Indians this  is your  chance dont let ti go away.. RUSSSSHHH TO INDIAN ARMY,  if you want to have BEAUTIFUL daughters who will become a hit  Bollywood  or television actresses, and will make you PROUD and will  add to the great  HONOR  of your family, ie   if they save themselves from honor killing.!

Also all women in the ad are BEAUTIFUL as per what is  ingrained in our brains. The super-skinny, super-tall, and amazingly gorgueous figure; The Super-Models and Actresses.The  certain typecast images fed on physical appearances and . If you don’t fit into those notions, you feel terrible – that’s why people are unhappy about their bodies. This advertisement further promotes, the fact  that to succeeed you need to have a hour glass figure ?. How do you define beauty ? Who said “big” isn’t beautiful? Who said curves aren’t sexy?
Who told you to change who you are, loosing the weight that you’ve gained so far. For me Tuntun, Manorama  all were beautiful also. beauty has nothing to do with your body but your innerself , your personality as a whole. For me Sheetal Sathe, Soni Sori, Aparna Marandi, Irom Sharmila are all BEAUTIFUL PEOPLE, and SUCCESSFUL as well.

 The Fact that  whether you will  have a daughter or son THE MANS SPERM WILL DECIDE, if  you have a daughter, she has to decide her life and what’s success for her ?

This  sexist  advertisement further strengthens  the stereotypes feminist have been fighting.  Women are human being and not relationships , think about them outisde their roles as  daughters mothers and sisters. Valourising women as  daughters, sisters, , mothers, bhabhi, dadi and Nani.  Today women are screaming at top of their voice-- ” I am not your  Mother, Wife, Sister or daughter . I am a PERSON.  So this ad, adds to all the sexists ads which are defining every woman by her relationship to another person rather than as a person in her own right; and that relationship (by implication if not stated overtly) is usually with a man. The self-sacrificing mother who bravely sends her son to war; the devoted sister who pampers her brother, the obedient daughter who makes her  PARENTS  proud, as stated in the ad . Women are  fed up being boxed into traditional roles. They are angry at being told what to wear, how to behave and lead their lives.  Respect women”, we tell our sons, “for they are all someone’s mother, sister or daughter.” Aha,,,,, yes…..  But the childless woman;  and a  woman whose husband is no more or whose  father has died and has no brother to ‘protect her honour’ — well, she’s fair game, isn’t she?  This is the kind of logic we perpetuate when we glorify a woman by her relationship rather than as a person.

I wonder if all these ‘ SUCCESSFUL DAUGHTERS’  have given their permission to be on the Advertisement and if they agree

and gulpanag tweets says so,

About the join army ‘ad’.Whether in jest or not,I have no problem with it.I owe 100% of what I am to my AF upbringing. Proud of it. @rwac48

— Gul Panag (@GulPanag) April 14, 2013

I wonder,   if all of them are  proud of  The Armed Forces (Special Powers) Act . which is to-date the single most direct instrument violating the democratic rights of the people of the North East and of Jammu and Kashmir. The Act is implemented when an area is declared ‘disturbed’ by either the central or the state government. Since 2 November 2000, she has been on hunger strike to demand that the Indian government repeal the Armed Forces (Special Powers) Act, 1958 (AFSPA), which she blames for violence in Manipur and other parts of northeast India. Having refused food and water for more than 500 weeks, she has been called “the world’s longest hunger striker”.

What is  rationale for  keeping AFSPA ,  thinking that security persons who rape innocent women should enjoy impunity in the name of national security? For whose security was the law enacted, for that of the country or of the criminals in uniform? Whenever some change is suggested in the Act the army seems to oppose it and the civilian government buckles under its pressure. For Eg , when the Jeevan Commission appointed to inquire into the alleged rape and murder of 30-year old Manorama Devi of Imphal in Manipur arrested by the Assam Rifles suggested  AFSPA should be repealed ,the  Government did not even publish the report.

Do you all know of woman called Manorma ?  In 2004, the women of Manipur held a protest after the brutal murder of Thangjam Manorama who was taken into custody from her home by the Assam Rifles under suspicion of having links with rebels. Her bullet ridden body was found a few kilometres away from her home, bearing signs of torture. Twelve Manipuri women came out naked, holding a banner saying ‘Indian Army Rape Us’ to protest against the paramilitary forces of the Assam Rifles demanding justice and taking a stand against the many rapes of other girls. Despite the curfew imposed, the protests by the women continued as they wanted the men responsible to be punished

One of the major rape cases in the history of Kashmir and indeed whole of India is the Kunan Poshpora mass rape incident. A village in northern Kashmir’s Kupwara district, Kunan Poshpora, on February 23, 1991 witnessed incidents of alleged mass rape of 20 women by the Army troops in one night. The incident drew the attention of national and international media. However this was soon forgotten and the womenfolk of the village landed in unending troubles. Women who deserved the respect and honor of the society, were not secure anymore form the cruel face of the armed forces and since that incident, numerous other cases of rape and enforced disappearances have come to fore in the last three decades. Another case which shook the region was the 2009 Shopian rape and murder case which resulted in protests rocking the whole Valley and several families lost their loved ones in the agitation.

Some  more cases of rape and sexual assault against personnel of the Army and central forces in Kashmir:

Case against Harbhajan Singh and Gurtej Singh

May 15, 1994: Rashtriya Rifles men entered the house of a couple and took the husband to Qazigund Hospital. When he returned the next morning, his wife told him she had been gangraped. A case of rape an other charges was filed at Qazigund police station. Responding to an RTI application, the home department said it sought sanction on January 23, 2006, to prosecute the Army men and have not yet got it. In a 2009 affidavit in the high court, the defence ministry said the state was informed that both accused, Nk Harbajan Singh and Rfn Gurtej Singh, had been tried by a summary general court-martial for rape, sentenced to rigorous imprisonment for 10 years and dismissed from service. “A retrial for the same offence will be in contravention to Article 20 (2) of the Constitution,” it argued.

Case Against Major Arora

January 3, 1997: A family comprising a 60-year-old, his two daughters and a grandson were preparing to go to bed at Manzgam, Kokernag, when some soldiers allegedly broke in. They were allegedly led by Major Arora of 5 Rashtriya Rifles. “He slapped me and dragged my younger sister (then 16) into a room and raped her,” the elder daughter told The Indian Express recently. The elder daughter’s husband had joined the Hizbul Mujahideen and the local army unit would often raid her father’s house. The day of the alleged rape, the Army allegedly picked up the father, who remains untraced 15 years on. The younger sister is now married with children, the elder one said, while her own husband surrendered  to the army, divorced her and remarried.

The police registered a case of rape at Anantnag and the government sought the defence ministry’s sanction to prosecute the officer. In an affidavit in the J&K High Court on June 5, 2009, then defence secretary Ajay Tirkey said the ministry received the request in December 2006 and it is “under consideration in army headquarters/Ministry of Defence”. On January 10, 2012, the ministry, responding to an RTI query, said permission was denied on April 21, 2007. “There were a number of inconsistencies in the statements of witnesses… The lady was forced to lodge a false allegation by anti-national elements,” the MoD said.

Case against Major Aman Yadav

December 5, 1999: Army men led by Major Aman Yadav of 28 Rashtriya Rifles, along with a few counter-insurgents, raided a house at Norpora, Kitter Dhaji, in Rafiabad. The officer allegedly raped a housewife, whose husband wasn’t home, while his men allegedly robbed the house. The family later left the village.

On January 4, 2000, based on a complaint by the victim’s husband, Panzala police lodged an FIR, one of the charges being rape. In an affidavit to the high court on June 5, 2009, then defence secretary Tirkey said the ministry received the request for sanction in January 2009 and “the case is under consideration in Army headquarters/Ministry of Defence”. In response to a separate RTI query, the MoD said sanction was denied on September 23, 2010. It has argued the allegations are “baseless and framed with mala fide intentions to put army on the defensive” Intriguingly, the ministry has cited it as a case of torture leading to death. Calling the allegations “mala fide” was effectively an indictment of J&K police, for it was on the basis of the police probe’s outcome that sanction was denied. There was, however, no follow-up government action. In response to an RTI application, police said they closed the case on August 19, 2011, having declared the accused “untraced”.

Case against Captain Ravinder Singh Tewatia

February 14, 2000: Captain Ravinder Singh Tewatia and three special police officials allegedly entered a house at night in Nowgam, Banihal. Captain Tewatia and one of the SPOs allegedly raped a mother and her daughter in separate rooms. A case of rape was filed in the Banihal police station. Two chargesheets were prepared for house trespass, assault, wrongful restraint and rape, and submitted to the Banihal chief judicial magistrate’s court on April 1, 2000.According to information gathered by rights group International People’s Tribunal on Human Rights and Justice through RTI applications, the case was split between a court-martial and criminal courts (in Banihal, Ramban and Jammu). The court-martial found Tewatia guilty of rape, sentenced him to seven years of imprisonment and dismissed him from service. He challenged the findings on October 1, 2000. On December, 31, 2002, the high court set aside the court-martial’s ruling. In 2003, the defence ministry filed a letter patent appeal in the high court, where it is pending. The state government didn’t challenge the high court order.

Rape case against  BSF Personnel

April 18, 2002: Personnel of the BSF’s 58 Battalion allegedly gangraped a 17-year-old in front of her mother, relatives and neighbours, all held hostage at gunpoint in Kullar, Pahalgam. Some 15 or 16 men in a BSF patrol party, passing through their village, had been beating up the girl’s uncle and she had tried to rescue him. A medical examination confirmed rape, while then BSF inspector general (Kashmir Frontiers) G S Gill, too, conceded that BSF personnel had committed rape. The girl identified three men at a parade. The same day, a case of rape was registered at Pahalgam police station. The police say that they submitted a chargesheet before the chief judicial magistrate in Anantnag. There hasn’t been any progress since.

Case against Major Rehman Hussain

November 6, 2004: Troops of 30 RR raided the home of a horsecart driver at Badhra Payeen village in Handwara at night. The man’s younger brother said, “The officer went into my brother’s room and pushed him out.” “He dragged my daughter (then 10) into the kitchen,” the wife of the targeted man this correspondent, adding the officer left and returned after an hour. This time, the woman alleged, she was raped in the kitchen.

The police registered a rape case and the district administration ordered a magisterial inquiry. The Army invoked the AFSPA . The accused officer, Major Rehman Hussain, was tried by a general court martial, which absolved him of rape. He was, however, found “guilty of using criminal force with the intent of outraging the modesty” of the 10-year-old girl and dismissed from service. But he challenged the decision in court and returned to service.

Even the  comments by apex court few days back while hearing PILs filed by families of victims of alleged fake encounters in Manipur, are a stinging rebuke of the lack of political will on revoking laws like the Armed Forces Special Powers Act (AFSPA). In this instance, the government’s response to the damning report of the SC-appointed committee set up to probe six such cases in Manipur was that it agreed that such fake encounters should not take place. But mere “taking note” will not do any more. The government must speedily act to revoke this black law from wherever it is in effect, be it the north-east or Jammu and Kashmir. Blanket immunity for security forces has led to murder, rape and other crimes. And when the legal framework vests such crimes with impunity, it vitiates the basic principles of democracy and the rule of law that are necessary for the citizens of these areas to feel part of the national mainstream.

The  Court  also sharply brought attention to another vital fact: keeping these laws, and thereby maintaining an unnatural state where the armed forces are seen as the primary representatives of government, mutates the whole political, democratic system itself.

Now after  getting a glimpse of AFSPA, what the supreme court of india says of Indian army ?

I wonder  if you  all are still proud of Indian Army

This sexist  advertisement should be immediately removed,

It will be great if  women part of the advertisement ask to do so.

best

Kamayani Bali Mahabal

Not proud of Indian Army

Not a Proud Indian

A Person  , A  Feminist and a  Human Rights Activist

April 15th, 2013

 

#India – Why Special Cell will continue to manufacture dreaded terrorists


Jamia Teachers’ Solidarity Association

 

Last year, JTSA compiled and released a report documenting 16 cases where the Delhi Police, especially its Special Cell, had framed innocents as terrorists. An overwhelming number of these unfortunate men were from Kashmir. Despite the fact that we cited court judgements which reprimanded the Cell for refusing to join independent witnesses, for willfully violating established procedures, for illegally detaining accused and showing their arrests on later dates; for fabricating evidence and failing to provide an iota of evidence in support of their charges – neither the leadership of the Delhi police nor the Home Ministry felt the need for any enquiry.

 

Many of these prize catches of the Special Cell happened to be either police or IB informers, surrendered militants, or men with whom one agency or the other had a score to settle. To that extent, Special Cell’s latest, sensational Holi gift – of having foiled a major terror attack in the capital city by Hizbul Mujahideen – follows the set narrative. What the Special Cell did not bargain for was the contestation of their great feat by the J and K police, who clearly said that Liaqat Shah was a former militant who was returning to Kashmir as part of the state government’s rehabilitation policy for surrendered militants.  So, to its utter surprise, the Special Cell was not greeted by instant glory, but by an unusual bad press.

 

But again, predictably, the MHA has rushed to the defence of the pampered Special Cell.  It is this continuing impunity which has emboldened agencies to pick, detain, arrest and charge people with terrorism. Three of the four officers of the Special Cell in the current ‘Hizb operation’ feature rather prominently in the JTSA report: DCP Sanjeev Yadav was key player in five of the 16 cases in Framed, Damned, Acquitted; Sanjay Dutt in six and Rahul Kumar in seven. It should be recalled also that DCP Sanjeev Yadav was indicted by the NHRC for masterminding the fake encounter at Sonia Vihar in 2006 (when he was an ACP).  We demand that the magisterial enquiry into the encounter conducted by the then Divisional Commissioner, Shri Vijay Dev, be made public immediately.  We fear that there is a concerted attempt to suppress the report of the magisterial enquiry.

 

Till this impunity ends, we shall continue to witness these press conferences, the display of seized arms and explosives, the conferring of medals and gallantry awards, and the manufacturing of fidayeens.

 

Released by jamia teachers solidarity association

www.teacherssolidarity.org

 

#India — Nobody’s children: Report slams the state of juvenile justice in conflict zones


Mar 24, 2013, 09.08AM IST TNN[ Manash Pratim Gohain ]

NEW DELHI: “In 197 districts of India officially notified as affected by internal armed conflicts, which includes 91 districts notified as ‘disturbed’ under the Armed Forces Special Powers Act (AFSPA) and 106 districts declared as Left Wing Extremism (LWE) affected, the edifice of the juvenile justice does not exist. Children, irrespective of their age, are treated as adult and subjected to gross human rights violations, including arbitrary arrest and detention, torture, extra-judicial executions and sexual assaults as part of the counter insurgency operations.”

These and many more disturbing details had been revealed by the first ever report on the state of juvenile justice in conflict afflicted districts of India, “Nobody’s children: Juveniles of Conflict Affected Districts of India“, by the Asian Centre for Human Rights (ACHR). Juveniles in these districts are denied access to juvenile justice unlike their counterparts in rest of the country, even as a heated debate has been raging at the national level with respect to lowering the age of juveniles in the wake of the gruesome rape of a young woman on December 16, 2012 in Delhi.

The 197 districts which have been notified as conflict affected include 71 districts notified as “disturbed” under the AFSPA in Assam, Arunachal Pradesh, Manipur, Nagaland, Tripura and Jammu and Kashmir; and 106 districts declared as LWE affected in nine states of Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Orissa, Uttar Pradesh and West Bengal.

“The report highlights 15 cases of arbitrary detention and torture and six cases of detention under the Public Safety Act of Jammu and Kashmir, 15 cases of extra-judicial executions and five cases of sexual assault such as rape by the security forces. In a number of cases of these blatant violations, the National Human Rights Commission has already awarded compensation and the orders of the NHRC establish the truth beyond any reasonable doubt,” said, Suhas Chakma, director, ACHR.

As per the report on the state of juvenile justice in conflict afflicted districts, in 151 districts out of 197 conflict afflicted districts across 16 states, i.e. 76.64% of the total conflict afflicted districts do not have observation homes (OH) and special homes (SH) implying that juveniles who are taken into custody are kept in police lock up and camps of the army and para-military forces in violation of the Juvenile Justice (Care and Protection of Children) Act, 2000 [JJ(C&PC) Act] and the UN Convention on the Rights of the Child.

The worst cases are Manipur which has only one OH cum SH and Jammu and Kashmir which has only two OH. This denies access to justice to many juveniles detained from other districts as they need to be produced before the respective Juvenile Justice Boards (JJB) or courts in the case of Jammu and Kashmir.

The report further brought to light that in the conflict afflicted districts, the JJBs exist on paper while their functioning remains deplorable. The Government of Manipur had submitted false information to the Ministry of Women and Child Development that nine JJBs had been operating in the State while in reality only one JJB was functioning. As the state government failed to establish the JJBs, the Project Approval Board (PAB) in its 35th Meeting under Integrated Child Protection Scheme (ICPS) held on January 17, 2012 had no other option but to decide not to sanction further grants for the nine JJBs for the current Financial Year 2012- 2013 until a report on the functioning of JJBs with complete details of members, case pendency, among others are submitted by the state government.

In Jharkhand, there were over 3,500 cases pending before various JJBs in the state as on July 11, 2012 while the OH for Boys established in the LWE affected Palamau district was converted into a girl’s residential school – Kasturba Gandhi Balika Vidyalaya, and the juveniles were shifted to the OH, Ranchi, which is about 165 km away. This requires travel arrangements to be made for the juveniles to come to Palamau district and be produced before the JJB, which invariably delays justice.

In Assam, replies received from JJBs under the Right to Information Act showed that not a single review of the pendency of cases before the JJBs has been conducted by the Chief Metropolitan Magistrate or Chief Judicial Magistrate in the districts of Kokrajhar, Dibrugarh, Darrang, Lakhimpur, Udalguri, Dhubri, Goalpara, Barpeta, Golaghat, Morigaon, Chirang, Dhemaji and Nagaon from date of their constitution till March 30, 2012.

The report goes on to cite violations of juveniles’ rights in conflict affected districts. The report claimed that children in the conflict affected districts are subjected to arbitrary arrest and detention including under the national security laws, torture, extra-judicial executions and sexual violence. In many cases, the perpetrators got away by producing “No Objection Certificate” or statements obtained under duress from villagers or victims stating that they had not committed any offence.

The report cited 15 cases of arbitrary arrest, detention and torture. The report stated that “though crimes of arbitrary arrest, detention and torture are difficult to establish, ACHR has been successful to obtain compensation in at least three cases (two of which are highlighted in the report) to establish the patterns of violence against children.

The first case was that of the “illegal detention and torture of 17-year-old Soumen Mohanty, Orissa on November 17, 2010. Mohanty of Netaji Nagar was arrested in connection with Madhupatana police station case No. 218 dated November 17, 2010 under Sections 506/34 of Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act in Cuttack, Orissa.

On November 23, 2010, ACHR filed a complaint with the NHRC which forwarded it to the Orissa Human Rights Commission for taking necessary action. The Police submitted misleading report and this was challenged by the ACHR. Thereafter, the OHRC asked its director (investigation) to conduct an independent inquiry and the inquiry report.

The inquiry revealed that Mohanty was taken into detention at Madhupatana police station on November 17, 2010 between 7.30 pm to 8.30 pm and interrogated by the police. Mohanty was tortured physically and mentally by ASI Satayanarayan Senapati in presence of inspector Jayant Kumar Mohapatra and sub-inspector, S B Jena. Senapati who assaulted Soumen Mohanty for which he is liable to be prosecuted under sections 341/323 IPC and Mohapatra is liable for illegal detention of Mohanty for more than 40 hours under sections 342/ 341/ 323/ 109 IPC. Police records were manipulated showing that Mohanty was arrested on November 18, 2010 at 8.30 pm to cover up the illegal action of Mohapatra and Senapati which amounts to misconduct and dereliction of duty.”

The OHRC also found that when Mohanty was produced before the CJM-cum-Principal, JJB, Cuttack on November 19, 2010, the JJB observed, “Soumen Mohanty complaints of ill-treatment by police while in custody. He has shown his right hand where marks of assault are visible. “The OHRC accepted the report of the director investigation on November 23, 2012 and awarded compensation of Rs 50,000 to the victim. The Commission directed the authorities to decide about the action to be taken against the erring officials for having assaulted Mohanty and manipulated the records.

The second case is about the illegal detention and torture of a 12-year-old minor in Assam, Dipak Saikia (name changed) of Sanitpur village who was tortured by Manuj Boruah, Officer In-Charge at the Sungajan police station in Golaghat district, Assam. On August 16, 2009 at about 11am, a group of about six police personnel entered the house of the victim and dragged him out without giving any reason. He was taken to the Sungajan police station and on reaching the police station, he was ordered to sit on the floor of the verandah. Boruah allegedly tied the minor’s hands on his back with a chain and tortured him. The victim was beaten up with a stick repeatedly on his body including in the thigh, knees, foots, sole, back, arms, elbows and ears. The Officer-In-Charge also asked the minor to keep his hand on his table and was beaten on the nails. He was again hit on the head, neck and nose until Dipak became unconscious.

Pursuant to a complaint filed with the NHRC by ACHR, the Superintendent of Police, Golaghat district, vide communication dated December 7, 2010 submitted a report to the NHRC confirming that the accused Boruah directed his subordinate police officials to pick up the victim from his home at 10.00 am, caned him and detained him in the police station. The report of the SP further stated that accused police officer willfully omitted to make necessary entries in the General Diary of the police station, pertaining to the whole episode including the picking up of the victim, his illegal detention and subsequent release. The report further stated that a Departmental Disciplinary Proceeding has been drawn up against the accused officer for criminal misconduct and dereliction of duty.

The NHRC ordered the state government to provide a compensation of Rs 50,000 to the victim. On April 20, 2012, the NHRC closed the case after the joint secretary to the Government of Assam, Political (A) Department informed that payment of compensation amounting to Rs 50,000 was paid through cheque to the victim.

The special focus of the report has been on the arrests under the Public Safety Act (PSA) in Jammu and Kashmir. Children continue to be arrested under the PSA which provides for preventive detention upto two years without trial in the name of public safety. The report cited the case of one Faizan Rafeeq Hakeem who was arrested for his alleged involvement in “stone-throwing” incident on February 7, 2011 when he was all of 14 years eight months 11 days old. He was booked under the PSA and shifted to Kotbalwal Jail. Finally, Chief Minister Omar Abdullah ordered his release. Hakeem was released on April 5, 2011.

Another case of administrative detention under PSA was that of 17-year-old Murtaza Manzoor. He was released from jail after the High Court intervened and found his imprisonment to be unlawful. He was locked up for more than three months.

The report also claimed that children are routinely picked up and extra-judicially killed including in alleged fake encounters. In this report, ACHR provided 15 cases of extra-judicial execution of children. In a number of cases, extra-judicial executions have been established by the National Human Rights Commission.

Two emblematic cases are killings of 13-year-old Rakhal Gaur by CRPF, Assam and 15-year-old Jatan Reang by Assam Rifles, Assam.

“On December 8, 2011 morning, Cobra commandos of the CRPF reportedly shot dead Gaur at his village, Malasi Namkhi Gaur village under Dolamara police station in Karbi Anglong district of Assam. On December 9, 2011, ACHR filed a complaint with the NHRC urging its immediate and appropriate intervention. NHRC registered the complaint (Case NO.348/3/8/2011-PF) and issued notice to Director General, CRPF, New Delhi and Superintendent of Police, Karbi Anglong district, Assam calling for reports within four weeks. The state government of Assam paid a compensation of Rs 3,00,000 to the next of kin of the deceased from the Chief Minister’s Relief fund and in view of this, the NHRC closed the case.

Meanwhile, Reang was killed in firing by the personnel of 14th Assam Rifles and arbitrarily arrested four other tribal villagers at Gudgudi village under Katli Chara police station in Hailakandi district, Assam. The five tribal villagers including the deceased were returning from Boirabi bazaar when they were ambushed by the 14th Assam Rifles from North Tripura over a bridge at Gudgudi village at around 10 pm on May 14, 2010. The 14th Assam Rifles personnel opened fire indiscriminately without any provocation and killed Reang although they were unarmed. Following the killing of Reang, the Assam Rifles personnel arrested the four other Reang tribal villagers and handed them over to Katli Chara police station.

On July 23, 2010 ACHR filed a complaint with the NHRC urging its immediate and appropriate intervention. The NHRC registered the complaint as Case No.170/3/21/2010-PF/UC and issued notice to the Secretary, Ministry of Home Affairs, Government of India. During the course of proceeding, the NHRC received the Magisterial Enquiry Report, Investigation Report of the Superintendent of Police, Hailakandi, and the Post-Mortem Report. The reports confirmed that the minor was fired at from point blank range by a jawan and injured his right thigh. But, the minor was not provided medical care and he died on account of excessive bleeding. The NHRC directed the Ministry of Home Affairs to pay a compensation of Rs 5,00,000 to the next of kin of the deceased.

The ACHR also cited examples of sexual violence children, especially the girls, face sexual violence from the law enforcement personnel in the conflict affected areas. One of the case cited is that of a 15-year-old tribal girl raped by a personnel of Tripura State Rifles on February 23, 2011 at Nandakumarpara village in Khowai subdivision in West Tripura district. The accused Tejendra Barui was deployed in the Village Committee Election for the Tripura Tribal Areas Autonomous District Council.

According to the family members, the accused TSR personnel dragged the victim to a nearby jungle forcefully when she was returning home from her relatives house and raped her. On February 25, 2011, ACHR filed a complaint with the NCPCR which was registered as Case No. TR-19023/21623/2010-11/COMP. Pursuant to NCPCR’s intervention, the District Magistrate and Collector, West Tripura district vide letter dated May 13, 2011 informed the NCPCR that a compensation of Rs 40,000 was recommended to two victims under the Tripura Victim Compensation Fund Rules, 2007.

On June 21, 2012, ACHR further intervened with the NCPCR to ensure that the compensation is enhanced.

Another case of sexual violence cited was that of a 14-year-old mentally challenged girl being raped by a Central Reserve Police Force (CRPF) personnel near the CRPF camp in Warangal district, Andhra Pradesh in April 2011. The victim was an inmate of a Shelter Home run by an NGO. The matter came to light only when the victim was admitted to a local hospital and gave birth to a premature baby on November 5, 2011. ACHR filed a complaint with the NHRC on November 14, 2011. The NHRC directed the Director General, CRPF, New Delhi and Superintendent of Police, Wrangal district to submit reports.

In compliance, the Director General, CRPF submitted a report which stated that during investigation the caretaker of the Home revealed that a CRPF Constable had raped the girl in the month of April 2011 as a result the victim might have become pregnant. An FIR was also registered under Section 376 IPC at Kakatya University Campus police station, Warangal against an unidentified CRPF personnel and Caretaker of the Home. The NHRC vide its proceedings dated April 13, 2012 directed the CRPF to submit a further report regarding the status of action taken.

 

 

Threat to Indian Constitution is more serious from the Executive arm of Government having scant respect for law


By Irfan Engineer

It is not in dispute that Afzal Guru was a surrendered cadre of JKLF. He was dissatisfied about the situation in Pakistan Occupied Kashmir and he surrendered to the Border Security Force. Once a person surrenders to security forces, he takes a calculated risk of displeasing and even facing threat to life from other gun wielding cadres. Gun wielding fighters fear that the surrendered cadre would give crucial information about them and their organization and also want to make an example of the surrendered persons to deter others from surrendering. Afzal Guru might have calculated the risk he runs and still decided to surrender. A person surrenders when he loses hope of success of the mission of the organization he was working with or realizes that the mission was not worthy after all. It is also not in dispute that Guru after his surrender did odd jobs and completed his graduation.

The police version and Afzal Guru’s version thereafter differ. Police version broadly is that Guru met one Tariq, who introduced him to Ghazi Baba and who in turn motivated him to arrange safe hideout for those who had planned to attack Indian Parliament. Afzal Guru was paraded by police before the electronic media and his “confession” was broadcasted. Supreme Court frowned on such practices and did not rely on the “confession” under the circumstances.

Guru, on the other hand, in his further statement under S. 313 of the Cr.P.C. before the trial court, and in his letter to the Home Minister states that he was introduced to those who later attacked the Indian Parliament by DSP Dalvinder Singh and coerced to arrange for their stay in Delhi, and while in Delhi, he constantly received calls from Dalvinder Singh. The call records were never investigated and never verified. Guru writes that he could not present his side and contest the evidence being adduced in the trial court as his family was under threat.

The Apex Court also accepts that Guru did not get a lawyer to represent his case. Supreme Court is on record stating that Guru’s conviction is based on circumstantial evidence. The death sentence was awarded to satisfy the collective conscience of the nation. The persons who attacked the Parliament were killed in the operation and Ghazi Baba was never arrested.

National Human Rights Commission has stated that it was violation of human rights of the family members of Afzal Guru to have executed him without even intimating the family before his execution and for not permitting his family members to meet Afzal Guru for one last time before his execution. It is violation of fundamental right to practice one’s own religion by not allowing the family to perform last rites of the departed according to their religion and not to hand over the body to the family.

Kashmir has been gagged since the morning Guru was executed. Kashmiris cannot express themselves – their anger or appreciation. Their children have no milk. News and internet access, SMSs all were blocked. No democracy, no trust and no freedom for Kashmiris. Only the CM of Kashmir was allowed to talk to the media. All because a Kashmiri was accused of waging or abetting waging of war with Government of India, tried on circumstantial evidence and executed without informing his family before his execution to satisfy the conscience of the nation as voiced by Hindutva brigade. The only other person executed in this manner after promulgation of Constitution of India was a Pakistani National – Ajmal Kasab. The Britishers allowed parents of Bhagat Singh to meet him for one last time before his execution, even though he was also considered by them a terrorist waging war on the Colonial rule.

Threat to the Government of India and the Indian Constitution is not serious enough from terrorists – as they can be handled by security forces having far more superior force and superior organization and power of public opinion of law abiding Indian citizens. Threat to Institutions of democracy, Indian Constitution and the rule of law is far more serious from the executive having scant respect for the rule of law clothed with unaccountable authority and from ideologies that purport to be majoritarian nationalism having scant respect for justice.

The Issue of Justice:

Revenge and the urge for blood was medieval notion of justice. Eye for an eye and tooth for a tooth is not justice. Instilling fear and creating awe for those in power has not deterred crimes. For those deprived or those nurturing a sense of injustice or experiencing occupation fight regardless of consequences and with whatever means they can command. Colonial power did not deter Indian freedom fighters and they were ready to pay any price – even their lives. It is the structures and institutions that we build which are fair and just towards all and accountable to the citizenry that help reduce crimes in the society.

Justice does not lie in retribution and inflicting same or more pain or loss to what a person has inflicted upon others and deriving satisfaction from the pain that that person is suffering. It is an inhuman instinct. Justice lies in restoration of the victim of crime back, expressing solidarity, and as far as possible, normalizing the life of the victim and helping her to come to terms with the wrong done to her, and ensuring that the wrong would not be repeated.  Family members of the five security personnel, a parliamentary guard and a gardener who died during the attack on the Parliament may derive satisfaction from killing of persons involved in the attack (with sufficient degree of certainty). However, those attacking the Parliament were seeking their own revenge (certainly an abominable and condemnable action) for somebody else, and so on! Kashmiris might perceive injustice in the manner in which the trial was held and the entire execution was dealt with and all of them were made to suffer house arrest for days following Guru’s execution. Retribution is a never ending cycle and does not bring closure. Every closure for one is point of revenge for another for the perceived injustice.

Closure for the relatives of those killed during Parliament attack would be more meaningful if their economic lives had been restored by the nation and helped them to come to terms with the questions disturbing their minds like, “why my near and dear one?”, “whose fault?”, “where did things go wrong?”, “why did the attack happen?”, “what motivated the attacker to target my near and dear one?”, and mitigated loss of their near and dear ones as much as possible. Closure for Priyanka Gandhi for her father’s assassination was not sending S Nalini Sriharan to gallows but meeting her in prison and seeking answers to these questions and finally forgiving her. Nalini was spared death row.

But Justice also means restoration of the perpetrator of the crime back to normalcy and to help the person repent and reform and till the time there is genuine repentance on the part of the perpetrator, putting such restrictions and taking such measures which would restore the perpetrator as a socially useful human being. If there is no repentance then society ought to be protected from the perpetrator by isolating the perpetrator.

Subjectivity in death penalty:

Others also attacked Constitutional Institutions and functionaries, including Nalini and Rajoana who killed the then Chief Minister of the Punjab. Those vociferously demanding Guru’s execution are silent on speedy execution of sentence to Rajoana and Nalini. There is no demand that Babu Bajrangi and Maya Kondnani convicted for brutal rapes and murder of many in which even foetus was not spared the brutality be awarded death sentence. Death sentence therefore is not a demand for justice, but a political demand to garner votes, to overawe a community or a section and demonstrate the power and patriarchal values of might, strength and masculinity of the state power and those who wield power. Masculinity, military might and notion of power come with the ideology of ‘might is right’. But there are limits to ‘might is right’ arrogance. The notions of crusades invoked by the then US President after attack on twin towers on 9/11 in which 3000 people (who were citizens of various countries) were killed, led the US to war with Afghanistan and Iraq killing over 6 lakh people and injuring millions. The war has not been won as yet by the mighty and will never be won until justice is done.

The march of history has been from more brutal and violent societies to more humane, inclusive and less violent societies; and from authoritarian to democratic states. The objective of punishment awarded by the society to the delinquents and non-conformists too has evolved from that of retribution to deterrence and reformation of the delinquent. With the strengthening of democracies, there is increasing culture of tolerating dissent and differences. Sanctity of life is increasingly accepted and believed that society does not have the right to take away anyone’s life. Disproportionate number of people from marginalized sections of the society – poor, ethnic and religious minorities and lower castes are handed down death penalty. For example, 41% of death row inmates and 34% of those executed in US are African Americans though they constitute 12% of US population. There is only one remedy – neat burial of death sentence as a punishment.

 

Quashing Dissent: Where National Security and Commercial Media Converge #FOE #FOS


Vol – XLVIII No. 09, March 02, 2013 | Sukumar Muralidharan, EPW

Constitutional guarantees of freedom of speech and expression in India today, seem a distant, almost illusory promise when the politics of the street — and a loud and seriously misinformed media – are final arbiters of fundamental rights and the defence of privilege is becoming the dominant motif of state policy.

Sukumar Muralidharan (sukumar.md@gmail.com) is a freelance journalist based in New Delhi.

Between February 14 and 15, the Department of Telecommunications (DoT) in the Government of India issued five separate orders to internet service providers (ISPs), blocking access to no fewer than 164 URLs or web addresses where specific content is hosted. All five were issued in seemingly unquestioning and unreserved compliance with ex parte orders emanating from courts. No reasons were given, though as things transpired, these were not very difficult to figure out.

Of the five orders, three were issued with clear intent to clamp down on protests in Kashmir after the February 9 execution of one-time militant Mohammad Afzal Guru.  Physical movement in all of Kashmir had been blocked by a pre-emptive curfew imposed early that morning. As news of the execution filtered through, local news channels and newspapers were told to suspend operations. And though the internet remained available through broadband, the more widely used modes of access in the valley — mobile telephones and wireless datacards – were disabled. The information lockdown persisted five days in the case of newspapers and an entire week for internet users. For local TV news channels, it still continues. But through the pores in this blanket of censorship, the people of Kashmir were still managing to make their anger and bitterness heard. The DoT directive, calling specifically for the shutting down of a number of pages on the social networking site “Facebook” was obviously about shutting that source of dissent.

An information blockade imposed on a region where rights to life and liberty have been in suspension might seem a lesser injustice, though it is part of the same apparatus of repression that particularly targets any possibility that an occupied people may conduct a social dialogue that reaches beyond immediate constraints of location and space. Yet for all that, there was nothing really unusual about the effort to tighten the information blockade on Kashmir, a region that has long been in a state of exception in the Indian political map, where even the pretence of guaranteed rights and entitlements does not apply. Indeed, a similar blockade on mobile telephone services had been imposed in the valley just a fortnight prior, while the rest of India was celebrating the anniversary of its republican constitution.

A second category of website blocks ordered in DoT’s most recent round of sweeping censorship, applied against the mimicking or parodying of important public institutions, such as the Bombay High Court. Few dissenting voices were raised here. If anything, there may have been some reservations about the recourse to heavy-handed censorship, where the task of sifting between the authentic and the fake, might well have been left to the judgment of the internet user , worries that the DoT action may have cast the rare visitor to these sites as an infant in need of the guiding hand of a nanny state.

The IIPM related blocks

What really raised eyebrows and triggered a war of attrition on the internet was the third category of order issued by the DoT, blocking seventy-three specific web addresses ranging over a total of fifty websites. The formal order addressed to all ISPs, began with a peremptory, “it has been decided”, much like an edict issued from a sovereign that is beyond challenge. After listing the sites to be censored, it entered a plea for secrecy, uncharacteristic for a sovereign acting with absolute authority. Letters of compliance to be filed by all those at the receiving end of the edict were not to mention the identity of the blocked URLs.

If the intent of that caution was to conceal the identity of the guiding hand behind this extraordinary measure of information denial, it did not go far. The common element in the seventy-three web addresses that were blocked was soon discovered to be the Indian Institute of Planning and Management (IIPM), an establishment with a pervasive presence in the media, despite its uncertain provenance and rather anomalous status within the landscape of higher education, where it claims to belong. Indeed, the IIPM advertising budget, the envy of most other institutions in the same category, wins it a high degree of exemption from scrutiny in the mainstream media. No such privilege though, is granted within the alternate discourse of the social media. Indeed, that is where the problem was clearly seen to lie.

Cryptic in its content and opaque in terms of its legal basis, the DoT order was traced by the small but vigorous community of free speech advocates on the internet, to emanate from an order by a court in the city of Gwalior in Madhya Pradesh. For the most part, it applied to blogs and independent initiatives by consumer groups and civil society actors to promote a dialogue on issues of public concern: such as the quality of service offered by various civic and commercial institutions. The IIPM, unsurprisingly for an institution with a high media profile, had come in for some searching scrutiny and been found wanting: several of the postings on these sites, drawing on first-hand experiences of the services (or lack of it) that it offered, were trenchant in tone and content.

It emerged soon afterwards that the Gwalior court had issued its order under provisions of the Indian Penal Code (IPC, section 499) dealing with the offence of defamation and the Information Technology Act (IT Act, section 69) which enabled government authorities to demand the blocking of certain sites by ISPs and intermediaries such as Google and Facebook. Evidence that the court had applied the tests of intent, accuracy and public interest that are thepreliminaries mandated by law before sanctions are imposed for defamation, was conspicuously lacking. And what literally leapt out in the DoT edict was the very first URL on the list, which belonged to a public institution, the University Grants Commission (UGC). In a notice issued in July 2012, ostensibly in compliance with a directive issued by the Delhi High Court in ongoing litigation, the UGC had recorded its finding that the IIPM was not a university under applicable law. It was in other words, not empowered to grant degrees in business management or any other discipline of study.

In holding the UGC liable for defamation, the Gwalior court obviously omitted any serious engagement, either with the history of litigation involving the IIPM, or with the law. Section 499 of the IPC is explicit about certain exceptions where in circumstances to be judged by the courts, the offence of defamation would not apply: these include, the “imputation of truth which public good requires to be made or mentioned,” the “public conduct of public servants” and the “conduct of any person touching any public question”. Clearly, any assessment that the UGC may have made about the academic credentials of the IIPM, when communicated to the public, would potentially fall within the scope of these exceptions. That the Gwalior court overlooked these aspects of the law points towards an egregious omission.

“Hacktivist” Response

Internet activists were quick to wreak vengeance. On Friday 16, the website of the IIPM was hacked and put out of service for a limited period of time. And under pressure from a growing chorus of outrage, the owner and executive head of the institution, Arindam Chaudhuri, took to the social network to explain his actions. The court order applied only to website content that was defamatory in an explicit sense, he pleaded. Satirical sites may have been included in an over-broad sweep of content pertaining to the IIPM, but remedies would be quickly instituted once a closer examination was made. As for the UGC and one other public institution in the education sector – the All India Council for Technical Education (AICTE) – Chaudhuri was scathing in his assessment: “I should say UGC and AICTE are organisations full of bribe-seeking corrupt officials where, even at the top, they have a track record of being caught red-handed and being jailed. … I suspect that UGC – at the behest of some of our petty competitors with dirty past records of filth and cheating, and public notices against them – had been deliberately spreading misleading information about IIPM to hurt its business interests and had even gone to the extent of falsely calling IIPM a fake university”.

There is much that is specious in the IIPM explanation and a great deal that the judiciary has to explain about its manifestly perverse order. Within days of the DoT implementing its blocking order, the Department of Information Technology (DIT) – a partner department under the Ministry of Communications – resolved on appealing it at the appropriate judicial forum. That may well have been too little too late. As the senior advocate and legal scholar Rajeev Dhavan has pointed out, in all such matters “the real mischief takes place right at the beginning … when injunctions are freely granted to prevent the publication or dissemination of an existing or proposed publication”.

The IIPM is a practised hand in censorship through legal injunction. In June 2011, it filed suit against Caravan, a monthly magazine of political and cultural commentary, for the sum of Rs 50 crore (INR 500 million), after the magazine had in its February 2011 issue, featured an article titled “Sweet Smell of Success: How Arindam Chaudhuri Made a Fortune Off the Aspirations — and Insecurities — of India’s Middle Classes”. The article was a substantive pre-publication excerpt from a book by U.S.-based journalist Siddhartha Deb, due for publication in July 2011. The IIPM lawsuit named the author, the publisher Penguin Books (India) and the internet search portal Google (India) as respondents, other than Caravan, accusing them of “grave harrassment and injury”. The lawsuit was filed not in Delhi, where both the IIPM and Caravan are based, but in Silchar town in the north-eastern state of Assam. IIPM was the second petitioner, the first being a Silchar businessman known to be associated with the institute as a recruiter.

At the first hearing of the case, the civil court in Silchar granted the IIPM a preliminary injunction, enjoining Caravan to remove the impugned article from its website. This decree was issued ex parte, without any pre-hearing notice to the magazine. The article was since taken off the Caravan magazine website, though it has been retained in the Internet Archive. In the most recent round of court-ordained censorship, the magazine’s July 2011 announcement that it intended to fight the injunction was blocked, but then republished under a different URL.

In October 1972, India’s Supreme Court heard a case brought by Bennett Coleman and Company Ltd (BCCL), publishers of the Times of India – and a number of other large newspaper enterprises – challenging a newsprint rationing order introduced to deal with a situation of acute scarcity. The official plea entered on behalf of the rationing was that the larger newspaper groups would, if allowed unfettered access to the market, buy up all the supplies available, depriving smaller players – and with this, large sections of the Indian population – of the means to speak and be informed. The judgment in the case of Bennett Coleman and Co Ltd v Union of India is one of historic significance, since it remains the most authoritative statement yet, on how the constitutional guarantees of free speech devolve into the narrower construct of media freedom. Yet this is a judgment that remains strangely inconclusive, since in addressing the issue of the free speech right, the majority opinion of the Court seemed to oscillate rather indecisively, between a notion of free speech as a privilege enjoyed by the few, and a broader conception of the unreserved exercise of the right by all.

In deciding the case, Justice A.N. Ray spoke for the majority and observed that the “individual rights of freedom of speech and expression of editors, directors and shareholders, are all expressed through their newspapers”.  But then a few pages on, the majority opinion effectively widened the ambit of the right: “It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express”.

Having elevated media freedom to a higher plane and rendered it into an entitlement enjoyed by all citizens, the majority in the Bennett Coleman case had little difficulty striking down newsprint rationing as a violation of article 19 guarantees on free speech. The rest of the majority judgment in the matter clung very closely to the liberal orthodoxy on the right to free speech: that governmental regulation is an evil more invidious than private monopolies. When it looked at the prospect of “monopolistic combination” in the press, it was only to rule it out. And even if the likelihood did arise, newsprint allocation could not be a feasible “measure to combat monopolies”.

Of special significance in this context is the lone dissenting judgment delivered from a bench of five judges, by Justice K.K. Mathew, who explicitly conceded the possibility of a conflict between the public interest and the profit motivations of the press. Using a “theory of the freedom of speech” that essentially viewed it in terms of twin entitlements — to speak and be informed – Justice Mathew observed that “the distribution of newsprint for maintenance of (newspaper) circulation at its highest possible level .. (would).. only advance and enrich that freedom”. As a constitutional principle, “freedom of the press” was “no higher than the freedom of speech of a citizen”. The problem at hand was one of bringing “all ideas into the market (to) make the freedom of speech a live one having its roots in reality”. In pursuit of this ideal, it was necessary as a first step, to recognise “that the right of expression is somewhat thin if it can be exercised only on the sufferance of the managers of the leading newspapers”.

Freedom of expression in other words, also involved the right of access to media space. And this requirement would be met only through the “creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones”. This was as important, in Justice Mathew’s judgment, “as the right to express ideas without fear of governmental restraint”. What was required was an interpretation of the free speech right which recognised that “restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups”.

Indian Media – An Echo Chamber for the elite

For all the appearances of growth and diversification that it presents, there is increasing worry that the Indian media with its advertisement-driven revenue model is becoming an echo chamber where those with economic clout and purchasing power talk among themselves, leaving out the voices of the vast majority. Citizens who happen to inhabit the zones of exception, such as Kashmir and he north-east, are excluded from participation by virtue of their infirm commitment to what is by elite consensus, deemed the “mainstream” ethos of Indian nationalism. And the socially and economically disadvantaged in other parts, are inconsequential because they are of no interest to the advertiser who sustains the media industry bottomline.

In this context, the growing number of social media users offers a potent challenge to the hegemonic narrative that emanates from the mainstream media. The most articulate voices here emerge from the top two or three percentiles of the population, who have access to the estimated 14 million broadband internet connections. But within this narrow stratum, there is already more dissent against the news priorities and editorial policies of the mainstream media, which in terms of reach addresses a multiple – though not a very large multiple – of broadband users.

More worrying for those who believe media freedom is a great idea as long as a few wise men control the message, is the rapid growth of internet and social media users through the mobile phone network. This is a growing constituency in Kashmir, the north-east and indeed, in several regions of the most bitter political contestation in India: territories where the promise of the minority judgment in the Bennett Coleman case is actually being sought, that media freedom is not just a right to be exercised on “sufferance” of those who own newspapers or the airwaves, but a right that all citizens have to speak and be heard, even beyond limitations of location and space.

There is a long history of repression of this manner of free speech, but few instances where sanctions have been imposed on speech that meets every authentic criterion of “hate”. This is unsurprising, since this category of speech usually emanates in the Indian context, from Hindutva and other such supposedly “mainstream” participants in the national consensus. The February crackdown on websites is probably just a minor punctuation mark in the long-term evolution of the doctrine of “legitimate” repression of basic rights, when exceptions to the rule of free speech could be decreed. It is nonetheless, a point at which some clarity is imparted. Constitutional guarantees seem a distant, almost illusory promise when the politics of the street — and a loud and seriously misinformed media – are final arbiters of fundamental rights and the defence of privilege is becoming the dominant motif of state policy. This most recent information blockade targets political dissent from the fringes of “mainstream” nationalism and also a prospective challenge to the commercial calculus of the “mainstream” media.  It shows how close the convergence is, between the propaganda needs of the national security state and the commercial compulsions of the mainstream media. Finally though, what is most apparent about this new effort at controlling the message is its utter futility, since the avenues through which people can speak and be heard are multiplying in such diverse ways, that information repression no longer is an option for states anxious to preserve control.

Condemn the highhanded, authoritarian attempts of the notorious Special Cell’s attempt to seize the phones of Prof. SAR Geelani


COMMITTEE FOR THE RELEASE OF POLITICAL PRISONERS

185/3, FOURTH FLOOR, ZAKIR NAGAR, NEW DELHI-110025

 

18/02/2013

Condemn the highhanded, authoritarian attempts of the notorious Special Cell’s attempt to seize the phones of Prof. SAR Geelani, the President of CRPP!

Condemn the continuing harassment of Prof. SAR Geelani since the illegal execution of Mohd. Afzal Guru! 

 

In a highly reprehensible act the fascist, Special Cell of the Delhi Police made an attempt to seize the phones of Prof. SAR Geelani, the President of CRPP today (18 February 2013) morning at his residence in Zakir Nagar. On being asked by Prof. Geelani as to whether they had any written orders for seizing his phones and if so on what grounds the Special Cell officers maintained that they don’t have such written orders. They insisted that they have verbal orders from their senior officials and they will seize the phones of Prof. Geelani. The Special Cell is putting pressure on Geelani to give away his phones.

 

It should be noted that despite the highhanded attempts of the Special Cell on the 9 February 2013 to forcefully take him away from the highway when he was travelling to be kept illegally at an undisclosed location till late in the night and then enforcing an undeclared house arrest on him for a couple of days, Prof. Geelani has been fearlessly making his observations clear before the media regarding the blatant violations behind the killing of Mohd. Afzal Guru. Most of the interviews came out to be a scathing indictment of the illegal execution of Mohd. Afzal Guru. It proved unequivocally that Mohd. Afzal Guru and his family were not only denied their basic human rights but were also denied justice from the day one of the trial of the Parliament attack case. Prof. Geelani also pointed out that Afzal being a Kashmiri was easy target as the Indian government does not want to politically address the genuine aspirations of the Kashmiri people but only believed in the politics of revenge and retribution.

 

The latest attempt from the Special Cell of the Delhi Police to seize the phones of Prof. SAR Geelani is yet another desperate attempt to gag him and in that process all dissenting voices against such dastardly acts of the Indian state. The Central Home Minister without batting his eyes was brazenly justifying the illegal act before the media insisting that it was necessary to violate laws and procedures to ensure that Mohd. Afzal and his family will not take recourse to law to prevent his execution! The Indian state is desperate to somehow shy away from the increasing instances of indignation being expressed by many legal luminaries such as Fali Nariman, Justice AP Shah, Senior Advocates Sushil Kumar and Kamini Jaiswal and others. Even the then government prosecutor Gopal Subramanium who made a song and dance in the Supreme Court about the need to satisfy the ‘collective conscience’ through the hanging of Mohd. Afzal Guru also is on record saying that the basic rights of Afzal and his family were violated in the most inhuman way. Despite such expression of indignation by many prominent citizens, the Indian state and its fascist police in the Special Cell have specifically targeted voices from the people of Kashmir, especially Prof. SAR Geelani who have been forthright in his condemnation. In many a places the police and the fascist Hindu communal outfits have ganged up to brutally beat up and then frame protesting people including students and intellectuals from Kashmir in several cases. This is part of the continuing attempts from the side of the Indian State to gag and suppress the voices of dissent that have arisen from various section of the people, intelligentsia and progressive and democratic sections ever since the illegal execution of Mohd. Afzal Guru on 9 February 2013.

 

We at the CRPP strongly condemn the fascist authoritarian designs of the Special Cell to deny the right to free speech, mobility and freedom of expression of Prof. SAR Geelani. Any such arbitrary and authoritarian attempt of the Special Cell can only invite further condemnation and indignation from the broader sections of the people.

 

In protest,

 

Amit Bhattacharyya

Secretary General

 

Sujato Bhadra

Vice President

 

Ajit Bhuyan

Vice President

 

N. Venuh

Vice President

 

Kaleem Koya

Vice President

 

MN Ravunni

Vice President

 

PA Sebastian

Vice President

 

Rona Wilson

Secretary, Public Relations

 

India wins Kishanganga case at The Hague court #Pakistan #Kashmir


Ravish Tiwari : New Delhi, Tue Feb 19 2013,

The International Court of Arbitration at The Hague Monday ruled in favour of India‘s position on the diversion of Kishanganga water, setting aside objections by Pakistan that has halted work on the 330 MW Kishanganga hydel project in Jammu & Kashmir.

Islamabad took New Delhi to the court of arbitration in the summer of 2010, disrupting Indian plans to divert water from the Kishanganga into the Bona Madmati Nallah. Islamabad said the diversion violated provisions of the Indus Waters Treaty of 1965, a claim that India refuted.

While the broad verdict is in India’s favour, officials were learnt to be going through the detailed order to check the fine print. The verdict is likely to mean a green signal for the Kishanganga project. Pakistan had earlier taken India to a neutral inter-nations expert for resolution of a dispute on the Baglihar dam, which too had gone in India’s favour in 2007.

In a statement issued late on Monday evening, Ministry of External Affairs spokesperson Syed Akbaruddin said, “The award of the court of arbitration at The Hague today reaffirms the validity of India’s position… It highlights once again that India is adhering to all the provisions of the Indus Waters Treaty.”

Former Central Water Commission chairman A K Bajaj, who was involved with the process of dispute resolution from the beginning and had been engaged by the government even after retirement, said, “It was a major point that Pakistan was opposing on various frivolous grounds and it is good that the hon’ble tribunal has decided the matter by correctly interpreting the relevant provisions of the Treaty.”

Former water resources secretary Dhruv Vijay Singh, who spearheaded the Indian case, told The Indian Express, “India always believed in abiding by the provisions of the treaty. And we will continue to do so.”

The arbitration went through tumultous phases after New Delhi and Islamabad failed to agree on the nomination of three neutral judges. Both sides invoked a provision in the treaty under which UN Secretary General Ban Ki-Moon had to nominate Stephen M Schwebel, a former president of the International Court of Justice, as the head of the seven-member arbitration bench.

The technical expert was nominated by the rector of London’s Imperial College of Science and Technology, and the legal expert was recommended by the Lord Chief Justice of England to complete the three neutral members, including the chairman, on the bench.

The bench, on which the two countries nominated two members each, visited both sides of the LoC before beginning a detailed hearing which concluded on August 31 last year.

India’s legal team was led by Fali S Nariman and comprised international law expert Shankar Das and hired foreign lawyers. The technical and factual case was presented by a team comprising Singh, Bajaj, Indus Commissioner G Aranganathan and his deputy Darpan Talwar, among others.

 

#India – When a rape is not a rape #sexualviolence #Vaw #AFSPA


Freny Manecksha | February 16, 2013, Times Crest

 

In 2004 an iconic image, hailed as a feminist statement, depicted a dozen Manipuri women who had stripped in front of the headquarters of Assam Rifles, holding banners saying “Indian army rape us.” But as Chitra Ahanthem, editor of Imphal Free Press explains, “These women actually belong to a very patriarchal society. What drove them to such extreme forms of protest? They told me it was an expression of the impotent rage they felt at the way security troops could commit sexual crimes with such impunity.”

The protest occurred after the body of 34-year-old Manorama Thingjam was found near Imphal on July 11, 2004. Manorama was earlier picked up from her home by 17 Assam Rifles on suspicion of being a militant. “The protesting women told me no woman could remain unmoved after seeing what the troops had done to Manorama. Her body bore appalling wounds _ scratch marks, deep gashes on her thighs and her genitals peppered with gunshot wounds,” says Ahanthem.

More than eight years later Manorama and women of Manipur are still denied justice. The army, in 2011, stalled the Manipur government’s probe and call for action by challenging the Guwahati High court decision in the Supreme Court through a Special Leave Petition saying no sanction had been given to the Manipur government to carry out a probe. Manipur comes under the Armed Forces Special Powers Act (AFSPA) and Sections 6 provides that the state government cannot prosecute law enforcement agencies without sanctions from the federal Home Ministry.

Such high-profile cases of impunity and “the belief that AFSPA because of its overarching powers to security troops virtually provides legal sanction to rape and sexual assault” led the People’s Union for Democratic Rights (PUDR) to make suggestions to the Verma Commission to bring security troops under the criminal justice system. The commission did so but the recent ordinance on sexual violence is totally silent on this issue. (Ironically in 1997, a bench headed by Justice Verma had upheld the constitutionality of AFSPA).

PUDR observes how powers of search and seizure under AFSPA work as “permissions to enter households and harass, protest and rape women with impunity.”

A most heinous example of such a “permission” is the Kunan-Poshpura mass rapes of 1991 in Kashmir. Men were made to assemble in the fields at night whilst some 23 women of the village, aged between 13-80 years, said they were raped by troops of the Fourth Rajputana Rifles between the night of February 23-24. No police investigations were carried out. A Press Council of India committee headed by B G Verghese, claimed the complaints were fabricated. But in October 2011, the State Human Rights Commission, (SHRC) acknowledging the sexual assaults asked the state to start a fresh probe.

The army which resists all attempts to lift AFSPA, says it has its own justice delivery systems and there is a strong and vigilant court martial process. But as legal activist Vrinda Grover observes, “Whilst they do deliver some sentences it is not commensurate with justice. Also there is no transparency since one has no access to court martial proceedings and no information is shared either with the public or even the victims.” In several cases Right to Information applications are refused under exemptions.

Increasingly, rights activists are now arguing that it is not merely draconian legislation but militarisation and the guise of a security-centric approach that creates “institutional impunity at political, judicial and moral levels.”  A report Alleged Perpetrators: Stories of Impunity in Jammu & Kashmir by the International People’s Tribunal for human Rights and Justice in Indian Administered Kashmir and Association of Parents of Disappeared Persons states that in the “name of countering militant violence the Indian state authorises armed forces to carry out operations with or without adherence to law. Significantly in a majority of cases crimes are not noted or investigated at all.”

A team member explains that in Jammu and Kashmir the very act of filing an FIR against the forces becomes a huge struggle.

One of the victims of Kunan-Poshpora  in her testimony to another report to the Independent People’s Tribunal on Human Rights Violations in Kashmir speaks of the daunting challenge in  filing FIRS because of fear and reprisal by concerned troops. She adds that although an FIR was lodged (RI/1387/83) at Trehgam police station on March 2, 1991 nothing came of it.

Alleged Perpetrators documents the lengthy and almost futile efforts of a particular case of torture and sexual assault in Sipan, Anantnag district. In response to an RTI query the Jammu & Kashmir government in 2009 said sanction for prosecution had been sought from the ministry of defence in 2006 but was still awaited. The ministry of defence claimed sanction had not been received. What is also significant is that it took 12 years for the J&K police to investigate and process the case for prosecution.

An even more alarming feature is that the culture of impunity has permeated to the police who do not come under AFSPA.  One notable case in Alleged Perpetrators pertains to rape and torture of  a 16-year-old girl from Zachaldara,Kupwara district. She says she was picked up from school and taken to a police station for interrogation. Lady constables tortured her and later DSP Altaf Ahmad Khan kicked her in the abdomen and then raped her. So horrific were the injuries that she was in hospital for 50 days. Her ruptured uterus was removed. Although she filed an application no FIR was registered. She then approached the SHRC who have recommended an inquiry three years after receiving the complaint. No investigations appear to have taken place.  Meanwhile the police officer has been promoted and awarded the President’s Police award for gallantry.

Significantly this trend of rewarding policemen who have charges of sexual violence against them have echoes in Chhatisgarh, where there is militarisation but no AFSPA. SRP Kalluri who was awarded a gallantry medal this January has been named by Ledhabai, the wife of a slain Maoist, as an accused for custodial rape and gangrape in a case filed in the Chhatisgarh High Court.

Last year there was outrage over adivasi school teacher Soni Sori’s letter to her lawyer stating that she was sexually assaulted and tortured by police officer Ankit Garg whilst in jail. Garg was given a gallantry award despite the complaints and Sori emerged as a global rallying figure for her vehement stand against atrocities perpetrated on adivasi women.  Sori who has been jailed by Dantewada police on various counts won a crucial victory this week as she was acquitted for being a key accused in an incident of opening firing and burning Essar vehicles.

Commenting on this trend of rewarding tainted police officers Vrinda Grover says that by such rewards the state is assuring them that they will be safeguarded. It is telling women, she says, that their bodies are fodder for interests of national security.