India: Authorities should investigate the custodial death of Adivasi youth in Chhattisgarh



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AI Index: ASA 20/003/2012 18 January 2012

India: Authorities should investigate the custodial death of Adivasi youth in Chhattisgarh

The Indian authorities should order a prompt, impartial and independent investigation into the custodial torture and death of an Adivasi youth, Podiam Mara, detained on suspicion of being a Maoist in Dantewada district of Chhattisgarh state, Amnesty International said today.

Amnesty International pointed out that the authorities had failed to order an independent investigation into the death of another Adivasi, Madkam Jogarao, in September 2011 after he had been detained by the Central Reserve Police Force (CRPF) and the police in the same district.

The two deaths indicate that the security forces in Dantewada district have not abandoned the path of impunity even after the disbandment of Salwa Judum and other civil militias engaged in anti-Maoist operations as per the Supreme Court order in July 2011, Amnesty International said.

Residents of Podiyam Mara’s native village, Kondre, informed Amnesty International that he was detained by the CRPF during an anti-Maoist operation on 9 January near Sukma town when he had gone to collect cash for sale of forest produce.

Local sources alleged that the CRPF detained Mara for four days when he was given electric shocks to his genitals, petrol poured on them and set on fire. On 13 January, he was handed over to the Sukma police who sent him for a medical examination and later produced him at a local court. While the initial medical report said that he had swelling in his genitals, he was remanded to judicial custody for 14 days without being asked about the exact date of his detention and the injuries sustained by him during his detention, they added.

Sukma police failed to send Mara to the Dantewada jail as per the court order and detained him at the police station overnight when he died, the local sources told Amnesty International.

Indian law requires that arrested persons be produced before a court within 24 hours of the arrest. In an apparent attempt to circumvent this requirement, the CRPF now claims that Mara was apprehended only on 12 January and a rifle recovered from him. The police claimed that he hanged himself in the police station, but four policemen have now been suspended.

Amnesty International calls upon the Indian authorities to ensure a prompt, impartial, independent and effective investigation into the reports of Mara’s illegal detention and torture resulting in his death. These deaths have occurred even as the Indian parliament is engaged in enacting a new law to combat torture in line with India’s obligations under the United Nations’ Convention against Torture, which it wants to ratify.

Those suspected of involvement in these violations, including persons bearing command responsibility, should immediately be suspended from positions where they may repeat such offences, and brought to justice; the authorities should also award full reparations to Mara’s family, Amnesty International said.


Over the last five years, Chhattisgarh has witnessed an escalation of violence between the banned Maoists who claim to be fighting on behalf of the Adivasis and India’s paramilitary forces. At least 600 people have been killed and some 30,000 Adivasis continue to be displaced from their homes in the state.

Press Release-Externment Notice to Anti Nuke Activist


Against the background of the call given by Janhit Seva Sangh for “Jail baro” andolan, two days before republic day the situation around jaitapur is heating up and unprecedented measures are being adopted by the government to crush the andolan. In this context, social activist and a renowned anti nuclear leader has been slapped with a notice for externment from Ratnagiri under sec 56(1) of Mumbai Police Act 1951. The police of Nate, district, Ratnagiri; citing two registered cases of mass agitation that are pending in the court, the DYSP of Lanja shri. Tushar Patil has by the notice (outgoing no 63/2012) ordered Vaishali Patil to appear before the sub-divisional officer of Ratnagiri. Adv. Baba Parulekar appeared before the sub divisional magistrate of Ratnagiri on behalf of Vaishali Patil.

For the last two years, against the background of Jaitapur agitations, the collector of Ratnagiri has time and again under sec 144 (4) of the cr. prod. Code prevented ex justice of Supreme Court, PB Sawant, Kolse Patil and Vaishali Patil from entering Ratnagiri district. This order was challenged by the petitioners under writ petition No 3339 of 14th Nov 2011. The Mumbai High Court in spite of having given an order against the government, the government taking recourse to the Mumbai Police Act of 1951 has initiated the fresh process of externing vaishali Patil from Ratnagiri. Jusice Mohit Shah and Justice Ms. Roshan Dalvi in their order of 14th Nov 2011, citing Rammanohar Lohia v Bihar government, Madhu limyae v subdivisional officer has upheld the fundamental right of movement and speech granted in the constitution and has held the order of the collector of Ratnagiri dist as illegal. In spite of this order the govt. and the police deliberately with a view to crush the ongoing non violent agitation against the Jaitapur nuclear project taken this step to harass and intimidate activists and leaders of the agitation.

‘The externment order that is essentially used against thieves, goondas, murders is being used against activists to muzzle free speech and movement and intimidate leaders of the agitation”.

President, Praveen Gavankar, Janhit Seva Samithi has condemned.

“The movement against the Jaitapur nuclear project will go on peacefully and non violently”

Said Ahmjad Borkar, Leader of fisherman.

Earlier the process of externment has already been initiated against the sarpanch of Madban Shri Bhikaji Waghmare, asst. sarpanch shri prashant Manjrekar, Suhas Gavankar, Shivprasad Gune, Nandkumar Raut, and Praveen Gavankar.

Those involved in disrupting the meetings of Konkan Vinashkari Prakalp Virodhi Samithi, MP Prakash karat; and those involved in Pelting stones during the meeting of MP D Raja, MP Tapan Sen –all supporters of Rane have been booked for minor offences. In its weekly meeting the Konkan Vinashkari Prakalp Virodhi Samith has condemned the partisan action of the Ratnagiri city police and have accused them of coming under political pressure.

you can contact Vaishali Patil at 9422696976

Memorial to a Genocide (Gujarat 2002 – 2012) Feb 27

Saira Salim Sandhi Lost her entire family in the riots of 2002. Here she is seen at the charred remains of what was once her home in Gulberg Society, Ahmedabad

Saira Salim Sandhi Lost her entire family in the riots of 2002. Here she is seen at the charred remains of what was once her home in Gulberg Society, Ahmedabad

Change of Date Due to All Trade Union Bandh on February 28, 2012

Society, Ahmedabad 

February 27, 2012

2 p.m. onwards

How do we commemorate such a cataclysmic series of violences, lives torn asunder, narratives of depth and despair, callousness and courage, struggle and hope?

Together we hope. As we near the Ten year mark of the genocidal carnage in Gujarat we appeal and call to all of you to join us on February 28, 2012 in the Live Memorial at Gulberg Society, Ahmedabad, physically or through countrywide protests and memorials all over India. From 2 p.m. onwards that day we shall be observing the Memorial. Through Reminiscences and recordings, Panels and Exhibits, Music and Words, Acknowledgements and Tears.

Nationwide Resonance A Call and Appeal

When we do so in Ahmedabad we hope that each and all of you in different parts of India will share the experience and in turn interact with us through a technologically linked endeavour. We shall be linking the Memorial through live web cam links and internet connections so that it can be viewed and shared at a few minutes gap in faraway Kerala, Kashmir, Manipur, Lucknow, Delhi, Mhow, Faizabad, Ayodhya, Malegaon, Mumbai.


All we ask is that you arrange Protest and Commemorations to mark this date. To enable an interactive sharing of the Live Memorial on February 28, 2012 at Gulberg Society, Communalism Combat and Citizens for Justice and Peace are in collective action, with individuals and groups, organizing a live relay of the Memorial by live Internet link. We request that each and all of you groups organize a Live Screening of this Memorial in different cities/locations all over the country on large projector screens. Participating in this memorial you organise your own special protest commemorations in every location. We shall also make arrangements that over three thousand survivors and activists at Gulberg will also view over the evening the protests and commemorations that you are observing in different locales.. Such an Interactive Live Memorial will be unique. It will ensure that there is a nationwide resonance to the Ten Year Commemoration of the Genocide.

The Ten Year Live Memorial will be up linked for permanent viewing on the Internet after February 28, 2012. The Memorial is part of week long observances Insaf ke Dagar Pe, also detailed below. The Citizens for Justice and Peace will also be organizing a Seminar Workshop on Lessons from Gujarat (Criminal Justice System and Accountability) at the Gujarat Vidyapeeth on February 27, 2012.

Memorial to a Genocide Gujarat 2002 – 2012, Manifesto of the Gulberg Society, Ahmedabad

Over the past ten years, as protests, testimonials and meet have observed the traumatic events in Gujarat in 2002, a traveling memorial to all the carnage sites was also attempted by us in 2008. Instead of peacefully allowing victim survivors to pay respects at the Coach S-6 in Godhra we were, one hundred of us, arrested and forced to bide time at the police station. The site of the burnt remains of the S-6 Sabarmti Express Coach has sadly become the sole mourning preserve of the government and organizations like the Vishwa Hindu Parishad (VHP). Reconciliation and Reparation appear a faraway dream when collective memorials are thus forbidden. It took time and energy to get ourselves released from the police station before we could reach the sites of brute violence at Pandharwada village, Panchmahals and then Ode, Anand before traversing Sardarpura. At each site, locales of the violence and sites where dear and near ones were unceremoniously dumped, were remembered. The next day when we walked in silence towards Teesra Kuan in the Maidan at Naroda Patiya, where Missing Persons Bodies had been dumped in 2002 and have not been recovered to date. A hostile neighbourhood and an edgy police barely allowed us to light candles there.

Given this painful past, we gave decided to collectively commemorate the 300 traumatic bouts of violence over 19 districts in a Live Memorial at Gulberg Society Ahmedabad. We earnestly appeal to each and all of you to participate in this endeavour.

Digital Installations and Exhibits in English, Gujarati and Hindustani

TIMELINE in content and chronology tracking the rehabilitation and justice process with a

PHOTO RETRO of the lives of internally displaced persons in various transit camps

STATISTICS of a human tragedy, an installation

MISSING PERSONS remembered through a ritualistic Wailing Wall

ACKNOWLEDGMENTS to Saviours of Lives, Activists, Jurists, Photographers and Media People in wall panels


HIDDEN NARRATIVES brute targeting of women and children

DIGITALISED MEMORIALS News Coverage and Parzaania on large side screens


Shubha Mudgal (vocal), Aneesh Pradhan (tabla), Sudhir Nayak (harmonium)

We shall be digitalizing the exhibit installations with text and photos and sending it out on CD to all of you to enable you to reproduce these in different cities. Do revert back to us on the nature of the protests and commemorations that you plan.

Already, on youtube you may view

Rupa Modi Tanvir Jafri Salim and Saira Sandhi Javed Anand Shiv Vishwanathan Ram Rahman Rajendra Prasad Teesta Setalvad

Insaf Ki Dagar Pe

2002 Carnage is completing its 10 years in this Feb.2012. Issue of Justice to the victims is not tackled fully. Livelihood, education, housing rights is some of the pending tasks. Security and dignity are still a far cry. In the name of development, state govt. is playing with the lives of the poor. Globalization and market forces are looting these sections of the society everywhere. Especially marginalized minority is suffering in many ways.

To commemorate 10nth anniversary of the carnage and to rekindle the light of hope we -civil society organizations of Gujarat are joining our hands. Two meetings of these organizations have already held and thought about such efforts.

Again we held a meeting at PRASHANT on 10-1-2012, Tuesday at 4.30 to plan the programme and decided some of the events tentatively, yet with certain approach to make the society to remind and re-organize to fulfill the uncompleted tasks of Justice and Peace. Insaf Ki Dagar Pe is a title unanimously chosen for the events.

List of the events:

1. 27-2-2012: (Half day event) A Seminar on ‘Status of Justice of the carnage victims’. Organized by -CJP [Center for Justice and Peace].

2. 28-2-2012: Exhibition and Sufi Sangeet at Gulberg Society. [Organized by CJP].

3. 29-2-2012: A Seminar on Internally Displaced people in which not only 2002 victims but victims of violence, development-projects of Gujarat and other regions of the country[Like Kashmir, Kandhmahal, and N.E etc.] will share their experiences and a panel discussion to analyze the situation is planned tentatively.

4. 1-3-2012: Sharing by the representatives of Peoples Movements [like Mahuva, Mundra, Mithi Virdi, and Tribals of South Gujarat etc.] Against Unjust Development in Gujarat; and panel discussion on the issue.

5. 2-3-2012: A National Multilingual ‘Kavi Sammelan’ on the issues of commemoration carnage and against unjust development.

6. 3-3-2012: ‘Bich Shaher’ -a play by Delhi-based theatre-group ‘Allaripu’ -based on carnage-2002, written and directed by Ms. Tripurari Sharma.

7. 4-3-2012: One-act plays on the issue of unjust development, organized by local theatre groups of youth.

8. 5,6,7-3-2012: A Documentary film festival on the issues of Human Rights. [Like -Jashn- E-Azadi by Sanjay Kak, Saffron Encounters by Subhradeep Chakravarthi. etc.]

A Call to all…..

These are some of the ‘decided events’. But we are always open to add in this list. If you suggest something relevant and effective to achieve our goal to make the society aware and active on the path of justice; you are always welcome. Add your input to make more effective events like “Seminar on Internally Displace People” or “Peoples Movements Against Unjust Development”… by suggesting the unsung struggle and people or any other ways. You can also organize similar event at you own place under this title during same period by just informing us.

We will have to join our hands and hearts to give larger perspective to the issues of Human Rights, Development, Justice and Peace. In the civil society of Gujarat we will have to keep the fire on and on until the flame of this fire does not the lit the lamp of Compassion, Understanding, Sympathy and Remorse in the hearts of the people of Gujarat and the world.

So please, give your approval/suggestions for this big event. We are waiting for that till 25-1-2012. Immediately after 25th Jan-2012, we will have to rush to arrange all the events. Your co-operation is requested to mobilize the audience, resources and venues. You can fund partly/fully any of these events.

We have to create the publicity material like Posters, Banners, Pamphlets, and Invitations etc. You can contribute or take responsibility for any of these.

Citizens for Justice and Peace, along with victim-survivors, and social activists from Gujarat are planning a week-long Memorial to the 2202 genocide in Gujarat, 10 years later. Those of you who could join in Gujarat are most welcome to do so. For those who cannot, the suggestion is that on February 28, you organise your own programmes in your own towns and cities and get connected with the Live Memorial in Ahmedabad. Please spread the word around.
* Organizations participated in the meeting of 10th January-2012:

for more information contact-

Taboos Undercut Nepal’s Marital Rape Law

By Tara Bhattarai

Many women in Nepal say they didn’t know that involuntary intercourse within marriage has been outlawed. Women’s advocates say those who are aware would rather call it a form of domestic violence than marital rape.

KATHMANDU, Nepal (WOMENSENEWS) — Devaki Poudel, 39, has kept quiet about the abuse she’s been enduring at the hands of her husband for nearly 25 years. She didn’t want to embarrass her family.

Now, as Poudel talks, her nerves are visible. She has a sweet voice, but it seems suppressed.

“My husband doesn’t like me talking and socializing with others,” says Poudel, who requested her first name be changed for safety reasons. “If he finds out that I’m talking to someone . . . ”

Poudel, her husband and their three kids have been living for 15 years in a rented apartment in the Lalitpur district, across the river from Nepal’s capital. Her husband works as a security guard at a private company.

They were married when she was 15. Her parents prevented her from attending school because they believed she would become a prostitute if she were educated. To avert this fate, they married her to a man from a neighboring village, 25-year-old Ramesh Poudel, whose first name has also been changed to protect his identity.

On the surface, they look like a happy family. But Poudel says otherwise.

“From the second day of marriage, my life has been like hell,” she says.

She says her husband began to fondle her private parts in ways that hurt her. He also forcefully had sexual intercourse with her. Marred by bruises and her husband’s teeth marks, her skin bore testament to the nightly scuffles. The abuse was so severe that it hurt her genitals, but she says she kept quiet about it.

A few days after her wedding, Poudel says she told her mother she didn’t want to return to her husband’s home. But her mother said women had to stay with their husbands, no matter how hard it was.
Never Discussing Sex

Poudel says her neighbors and landlord have heard her crying, but she usually covers it up as a domestic dispute. Even when her sisters or relatives come to visit, they never discuss sex.

“How do I discuss bedroom matters with others?” she asks. “And at the end of the day, it’s me who has to suffer.”

Six years ago, the Nepal government amended its law against rape to include marital rape, yet many women such as Poudel say they haven’t heard of the term or the law against it.

Even when they become aware, uneducated and educated women alike most often decline to report their husbands. They share the deeply ingrained taboo not to talk about sex, complicated by notions of respect for husbands and economic factors.

In contrast, women have increasingly invoked the Domestic Violence Law of 2009. Family violence reports jumped substantially last year in Nepal, according to data from Nepal Police Women and Children’s Cell. There were 968 reports in 2009 and 983 in 2010. By the end of April the following year, there were already 1,355.

Rupa Shrestha, database manager at the Women’s Rehabilitation Center, a nongovernmental organization, says that although women come in with complaints, they are too scared to file a formal report of marital rape against their husbands because of personal and social reasons. She says cases have been scarce nationally.

“There have only been two cases in the court since the law has been established,” Shrestha says.

Character Attack

Women say people would attack their characters if they filed marital rape reports, says Susha Gautam of the Forum for Women, Law and Development. Instead, victims of marital rape are more comfortable filing domestic violence cases.

The Domestic Violence Act covers physical, mental, sexual and financial torture, and punishments include fines ranging from 3,000 to 25,000 rupees ($35 to $300) and possible prison terms of up to six months, Gautam says. Domestic violence reports have been rising, she adds, likely because of an increased awareness among women of their rights rather than an increase in domestic violence.

Since the issue of marital rape is not discussed openly in Nepal, reliable statistics are unavailable. Currently about 110 men are serving time in Bhadra Prison in Kathmandu for rape, including nearly 40 with life sentences, according to data from the Central Prison. But none is there for marital rape.

“In every household, women have been bearing the brutality of marital rape,” says Suchitra Mainali, a sociology professor at Padma Kanya Multiple College, the first women’s college in Nepal. “It seems like women have been used to bearing it with such pain.”

In the Kathmandu Valley, Nepal police have a separate women’s division to handle gender-based violence. When women report domestic violence, it usually has to do with some sort of sexual violence and marital rape, says Lal Kumari Khadka of the women’s prison in Lalitpur.
Loyalty and Stigma

Many don’t report such cases because of a loyalty to their husbands that is deeply ingrained in Nepali culture and the social stigma attached to defying or leaving one’s husband, Mainali says.

Women such as Phoolmaya Limbu, whose first name has been changed to protect her safety, remain loyal, even though says she has also long suffered from marital rape.

Limbu, 49, is from Jhapa, a district in eastern Nepal. Despite suffering a uterine prolapse, when the uterus slips down from its normal position, she says her husband didn’t refrain from forcing her to have intercourse. To deal with the pain, she started to drink alcohol. She says she usually got tipsy and sometimes even drunk to tolerate the forced sex.

“It seems that to be born as a woman is a waste,” she says.

Women from the city with formal education may be even less inclined to speak about marital rape than uneducated women, says a professor at a public college, who declined to be named. Other women cite economic reasons for not reporting their husbands, as they are the sole provider in the household.

Deepa Acharya, a legal adviser from the National Women’s Council, says that the government is working to raise awareness through special ministries and councils created to address women’s issues. She says the media is also helping to make more women aware of marital rape and the laws and resources available to assist them.

“Work is in progress,” Acharya says. “The government is also working toward it. It takes time for people to be aware.”

Despite such efforts, victims such as Poudel and Limbu remain unwilling to report their husbands. Poudel says her life has been a “living hell,” but she still thinks highly of her husband.

“Whatever it is, he is my married husband,” she says. “My identity is associated with him. But in my next life, I don’t want to be born as a daughter. I want to be born as a man.”

Worked under NREGA 6 months back, No payment yet

Raja from Satna district in Madhya Pradesh says his family members worked in some work under National Rural Employment Gaurantee Scheme ( NREGA ) in August last year but all the 15 workers have not got their wages. They have complained to administration this year about non payment but there is no action. He requests administration to made the payments asap. For more Raja can be reached at 07828395946

Listen to Him

For the Respect of the Rights of all Migrant Workers !

The fundamental right of each and every human being should be to remain in their country of origin and to have basic needs met.
But the unequal development that characterises the world today is forcing vastly more and more people to look for a better future in another country. In the last few decades international migration has grown enormously. The neo-liberal policies that dominate the process of globalisation today have accelerated international migration, providing capital with an ever cheaper work force. Between 2000 and 2010 the number of migrants doubled and now exceeds 200 million people across the world. All regions of the world are affected by the phenomenon although one thing that is new is that today women constitute nearly half of all migrants.

Inevitably this enormous movement of people has significant economic, political, social and cultural consequences, as much in the host country as in the countries they are leaving. The country of origin loses many well educated people (brain drain), who are of course indispensable to economic, social and cultural development but the host country benefits accordingly. The migrants contribute to the prosperity of the host countries to the extent that they have become vital to the functioning of their economies. Migrants also contribute to the host country culturally and artistically.

We must not lose sight of the fact that migrants also play an equalising role, offering a kind of safety-net in an unequal world, by financially maintaining their families who have stayed behind in the country of origin. In 2010, the amount of money sent back by migrant workers to their country of origin (in the South) was nearly three times the amount received by those countries in development aid.

Contrary to common perception in the West, by far the largest international migration occurs between countries of the South. According to 2010 figures, out of 128 million migrants living in countries of the North only 74 million originated from countries in the South, whereas the latter receive 86 million on their own soil.

We must also remember that the reason that so called “irregular”, “clandestine” or “undocumented” migration has increased in Europe and in the USA (who receive nearly half of the irregular migrants in the world) is precisely because these countries have taken administrative, legislative and even military measures to prevent all “unwanted” migration to their territory. These measures have removed all the weight from the Geneva Convention, which was already quite restricted in its application, and have rendered it almost inoperable, as is certainly the case in Europe.

While host states have the right, within current international law, to regulate levels of migration they also have a duty both to respect and to ensure respect for the rights of migrants who do arrive (regular or irregular). This is the message at the heart of the UN and ILO international conventions.

While this report concentrates mainly on the situation of irregular migrants, it will also look at the scope and workings of these conventions.

I The causes of international migration
II The Problems and Human Rights Violations encountered by migrants during the process of migration
III The situation for migrants in the host country and at their borders
A) The European Union

1. The situation for regular migrants

2. The situation for irregular migrants

3. The situation for asylum seekers

4. Arbitrary detention

5. The crime of solidarity
B) The situation of domestic workers throughout the world
IV Recommendations at the international level to protect the rights of migrants


Download Report Here

Harassment of mentally ill patients: Court orders high-level probe

Jan 17, 2012 (Thrissur )-Chief Judicial Magistrate P.S. Anthony on Monday directed the City Police Commissioner to investigate into the alleged harassment of inmates at the illegal mental health centre at Avanur, near here. The court directive was on the basis of a detailed report submitted by District Medical Officer V.V. Venus at the court on the issue.

The Health Department had recently rescued 41 mentally-ill patients from the Santhi Bhavan Sarvodhaya Pankuvakal Charitable Trust, functioning for the last 28 months at Avanur, during a raid. According to the health officials, the patients were kept in chains in dilapidated, roof-less sheds without proper care or treatment. An inspection conducted by Mental Health Authority Secretary D. Raju at the Centre revealed that the Centre had sold body of an inmate, who died at the centre, to a private medial college in Kollam. The Centre, registered as a charitable institution, did not hold licence to keep mentally-ill patients. Though the register kept at the institution showed 78 patients, only 41 were found at the time of raid. Many patients, including women, were missing. When asked about the missing patients, Thalikkulam Veetil Joshi, 50, secretary of the centre, told Dr. Raju that 11 patients had escaped from the centre at various occasions and five had succumbed to illnesses. One patient was killed during a fight between the inmates.

No documents available

According to the health officials, except for the murder case and another death, no documents were available at the centre about the missing persons. The deaths were not registered at the panchayat. The illegal sale of corpse was revealed when the driver of the ambulance in which the body was transported from the centre to a Kollam-based private medical college was interrogated by the authorities. “The procedural complications to get bodies for academic purposes often encourage private medical colleges to acquire bodies from such illegal institutions,” said a health department official. And for such centres, it was a lucrative business to make easy money.

The DMO’s report has recommended a high-level investigation into the functioning of a large number of orphanages, old-age homes and de-addiction centres in the State.


Directive on the basis of a detailed report submitted by District Medical Officer V.V. Venus

The Health Department had recently rescued 41 mentally-ill patients from a Charitable Trust 

A case for privacy – A.G. Noorani

The strongest protection possible must be given for the right to privacy in any statute or scheme, including the UID project.

IT is 30 years since a Congress Member of Parliament, V.N. Gadgil, suggested an Act for the protection of privacy, designed, no doubt, to curb press exposure of the wrongdoings of politicians. In reality, it is all but impossible to draft a statute that strikes a fair balance between people’s right to know and the protection of a person’s privacy. In India, as in the United Kingdom, there is no tort of privacy. India’s law of torts (that is, civil wrongs punishable in damages) is based on case law, English and foreign. However, the Supreme Court of India has inferred right to privacy from the ones explicitly guaranteed. Article 21 of the Constitution contains a guarantee of personal liberty and it is obvious that personal liberty also involves the right to privacy.

The Supreme Court ruled in Kharak Singh’s case in 1962 that the right to privacy is not a guaranteed right under our Constitution though it struck down domiciliary visits at night as being violative of “personal liberties”. A minority, comprising Justices K. Subbarao and J.C. Shah, held that the right to privacy was “an essential ingredient of personal liberty”. In the Nakheeran case [ R. Rajagopal vs State of Tamil Nadu (1994) 6 SCC 632], the court said:

The right to privacy is implicit in the right to life and guaranteed to the citizens of this country by Article 21. It is a ‘right to be left alone’. A citizen has a right to safeguard the privacy of himself, his family, marriage, procreation, motherhood, child-bearing and education, among other matters. No one can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. The position may, however, be different if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

There is another aspect to the right to privacy. India is a party to the United Nation’s International Covenant on Civil and Political Rights. Article 17 of the Covenant states that “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. Everyone has the right to the protection of the law against such interference and attacks.” India ratified the Covenant on March 27, 1979. The instrument of ratification contains reservations to some of the other provisions of the Covenant, but not to Article 17. This is a treaty obligation enforceable internationally through the Human Rights Committee set up by the Covenant. India has to file periodic reports on its observance of the Covenant and successive Attorneys General have been grilled by the Committee’s members on the pathetic state of India’s reports.

In U.S. and U.K.

Even in the United States and Britain, legal recognition to privacy came in slow stages. It began with an article in 1890 in the Harvard Law Review by Louis D. Brandeis and his friend and law partner, Samuel Warren. Entitled “The Right to Privacy”, it was widely noticed. In 1928, as a judge of the Supreme Court, Brandeis gave a vigorous dissent upholding this right, which he called “the right to be let alone”. This was in Olmstead vs U.S., the famous telephone tapping case. The majority ruled that evidence, thus obtained, was admissible in courts. The ruling has suffered much battering since.

English common law recognised no right to privacy. Committees were set up to consider legislation on the right to privacy, only to find that no easy solution was possible. Reconciliation of this right with the freedom of speech is not an easy task. However, the Human Rights Act, 1998, “incorporates” as British law the “European Convention for the Protection of Human Rights and Fundamental Freedoms” signed in 1950. Article 8(1) of the Convention says that “everyone has the right to respect for his private and family life, his home and his correspondence”. Clause (2) carves out permissible restrictions, which are “necessary in a democratic society” in the interests of national security, for the prevention of crime, etc. Several cases have since been decided in English courts, which are of direct relevance to us. English cases are citable in our courts.

Data Protection Act

In 1998, Britain enacted the Data Protection Act, which lays down the principles and establishes a hierarchy of officials. Data controllers are subject to the jurisdiction of the Information Commissioner. It says: “Data controllers must also abide by the data protection principles. They are, in brief, (a) the data must be processed fairly and lawfully and only for one of the prescribed purposes. For data concerning ‘sensitive’ matters, there is a narrower group of specified purposes; (b) it must be adequate, relevant and not excessive for the purpose; (c) it must be accurate, and where necessary, kept up to date; (d) it must not be kept for longer than is necessary; (e) it must be processed in accordance with the rights of data subjects; (f) appropriate technical and organisational measures must be taken against unauthorised or unlawful processing and against accidental loss or destruction of or damage to the data; (g) it must not be transferred out of the EEA [European Economic Area] unless the country to which it is taken or sent gives adequate protection for the rights of data subjects.

“The Commissioner can serve an enforcement notice if she is satisfied that a data controller has contravened any of these principles. An individual who suffers damage because a data controller has contravened any requirement of the Act is entitled to claim compensation. The special provisions for journalistic material gives exemption from: the data subjection principles (except those concerning security of data); data subject access rights; the rights of data subjects to prevent data processing; the rights of data subjects to correct inaccuracies; and rights concerning automated decision-making” (see Media Law, by Geoffrey Robertson, QC and Andrew Nicol, QC, Penguin, 4th Edition, pages 278-279).

Any law on data protection enacted by the Parliament of India will be tested on the anvil of Article 19. Section 32 of the British Data Protection Act provides “public interest” exemptions for “journalistic, literary or artistic material”. The test in each case is public interest. Public interest is a concept entirely different from material in which the public would be interested.

In 2004, the Supreme Court of India decided a case in which the right to privacy was involved. It concerned Section 73 of the Indian Stamp Act, 1899, and its amendment by Andhra Pradesh in 1986. As amended in 1986, it read:

“Every public officer or any person having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may attend to secure any duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorised in writing by the Collector to enter upon any premises and to inspect for such purposes the registers, books, records, papers, documents and proceedings, and to take such notes and extracts as he may deem necessary, without fee or charge and if necessary to seize them and impound the same under proper acknowledgement.

“Provided that such seizure of any registers, books, records, papers, documents or other proceedings, in the custody of any bank be made only after a notice of 30 days to make good the deficit stamp duty is given.”

The Supreme Court Bench, comprising R. Lahoti and A. Bhan, surveyed the case law in the U.S. and in India, but not in the U.K. It held:

“The impugned provision in Section 73 enabling the Collector to authorise ‘any person’ whatsoever in respect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act and, more importantly, the Section allows the facts relating to the customer’s privacy to reach non-governmental persons and would, on that basis, be an unreasonable encroachment into the customer’s rights. This part of Section 73 permitting delegation to ‘any person’ suffers from the above serious defects and for that reason is, in our view, unenforceable. The state must clearly define the officers by designation or state that the power can be delegated to officers not below a particular rank in the official hierarchy, as may be designated by the state.”

Besides, the AP amendment of 1986 permitted inspection being carried out by the Collector by having access to documents that were even in private custody; that is, custody other than that of a public officer. It empowered invasion of the home of the person in whose possession the documents “tending” to or leading to the various facts stated in Section 73 were in existence. Section 73 was devoid of any safeguards as to probable or reasonable cause or reasonable basis or materials. It, therefore, violated the right to privacy both of the house and of the person. The court referred to the R. Rajagopal case wherein the learned judges held that “the right to personal liberty also means life free from encroachments unsustainable in law”, and such a right flowed from Article 21 of the Constitution.

Right to privacy was upheld again by the Supreme Court of India in another judgment most recently: Ram Jethmalani vs Union of India. Delivered by Justices P. Sathasivam and H.L. Gokhale, it read:

“Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner…. [A]s constitutional adjudicators we always have to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether urged by governments or private citizens, howsoever well meaning they may be, have to be necessarily very carefully scrutinised. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values…. An inquisitorial order, where citizens’ fundamental right to privacy is breached by fellow citizens is destructive of social order. The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the state is enjoined from derogating from them. It also includes the responsibility of the state to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others….

“…There is an inherent danger in making exceptions to fundamental principles and rights on the fly. Those exceptions, bit by bit, would then eviscerate the content of the main right itself. Undesirable lapses in upholding of fundamental rights by the legislature, or the executive, can be rectified by assertion of constitutional principles by this court…. We are not proposing that Constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly, and without forethought as to the damage they may cause.”

To sum up, the right to privacy is like the elephant – easy to detect, yet all but impossible to define. However, this is not to say that statutes on the subject do not exist. They do, in Canada as well as in the U.S. But the experience is not particularly inspiring. The best course then is to give the strongest protection possible for the right to privacy in any statute that may be enacted. That holds for any public scheme, including the UID project.

Frontline-Volume 28 – Issue 24 :: Nov. 19-Dec. 02, 2011

Enrolment saga – Usha Ramanathan

People who had turned up at a school in Hubli, Karnataka,  to apply for Aadhaar.

People who had turned up at a school in Hubli, Karnataka, to apply for Aadhaar.

The incentive of inclusion appears not to be sufficient to get people to enrol for the UID, so the strategy has shifted to the threat of exclusion.

THE Unique Identification Authority of India (UIDAI) has ambitious targets to meet. The Unique Identification (UID) number, or Aadhaar, has been marketed as a number that will give the poor and the undocumented an identity so that they can tell the state they exist. It is being promoted as a means of reaching services to the poor. It has been projected as voluntary, with the UIDAI not imposing any compulsion. It has been presented as potentially easing the way to fulfilling Know Your Customer (KYC) norms. It is, then, something to which every resident is entitled – a sentiment that is reflected in Clause 3 of the National Identification Authority of India Bill, 2010 – and not something that will be mandated. That is how the project was presented to the public.

The UID, unlike the United States’ Social Security number, carries no guarantee of any service or benefit. Among those who have multiple identification documents, its appeal was bound to be limited. These aspects – of voluntariness and lack of sufficient incentive to enrol – explain the shift in strategy that was effected early on in the process with one objective: to increase enrolment. While the UIDAI continued to insist that enrolment was voluntary, it worked on agencies within the government to make the UID mandatory before services could be accessed.

The strategy to increase enrolment is reflected in the UIDAI’s document on “Public Health and UID”. The aggregation of records from various population databases such as those for the census, the public distribution system (PDS) and voters’ lists would still leave a large percentage of the population uncovered. Therefore, “every citizen must have a strong incentive or a ‘killer application’ to go and get herself the UID, which one could think of as the demand-side pull…. Helping various ministries visualise key applications that leverage existing government entitlement schemes such as the NREGA [National Rural Employment Guarantee Act] and the PDS will (1) get their buy-in into the project (2) help them roll out the mechanisms that generate the demand-pull and (3) can inform a flexible and future-proof design for the UID database…. Health and health-related development schemes could offer a killer application for the UID.”

In October, the Ministry of Rural Development indicated in a tender that it intended to link access to NREGA jobs with the possession of a UID. Academics and activists working on the NREGA protested that loading the UID agenda on the NREGA would cause harm to an already fragile system. On May 17, senior activists responding to media reports that had begun to circulate that the UID was to be made compulsory for NREGA benefits in Mysore wrote to the Ministry characterising such a move as “unfair, illegal and dangerous”. “It is also disturbing to read from the same reports that the main purpose of this move is not to provide a facility to NREGA workers, but to facilitate the completion of UID enrolment,” they wrote.

In September, it was the turn of the Ministry of Petroleum and Natural Gas to declare by notification that refills of cooking gas cylinders would be available only to households that had enrolled for a UID. The incentive of inclusion was clearly not sufficient to get people to enrol, so the strategy has shifted to the threat of exclusion. Actually, though, given that 1.2 billion people cannot possibly be enrolled in the immediate future, this notification is unworkable.

In Kerala, the government has set out to enrol six million students spanning 15,000 schools so that the UID may be used to track them through their years in school. The National Commission for Protection of Child Rights (NCPCR) has ordered an inquiry into this potential violation of the right to privacy and dignity of the children in the State.

Admittedly the UID project is an experiment – not a solution.

In the process of experimenting with biometrics, the UIDAI has enlisted registrars with whom it has memorandums of understanding and enrollers who it has “prequalified” to do the work of capturing data. Interestingly, while recognising that biometrics is “sensitive information”, it has washed its hands of responsibility for the safety, security and confidentiality of the data during enrolment and passed the buck to the registrars.

The “Guidelines” that the UIDAI has unilaterally framed for the registrars set out “principles and procedures”, but there is no evidence that there is any seriousness in enforcing these. For instance, it reads: “The individual from whom data is being collected should be informed the purpose for which information is being collected and how the data will be used.” There is no evidence of registrars or enrollers giving this information. In fact, it seems that neither registrars nor enrollers have any idea of what use the data will be.

The enrolment process has thrown up a host of issues already.

In January, reports emerged about working-class women in Mumbai being unable to enrol because of blisters and calluses and the effect of abrasive detergents on their hands. More recently, in August and October, there were reports from Bangalore and Delhi that senior citizens were unable to get enrolled because their fingerprints did not work. The credibility roadblocks that these reports were setting up were sought to be removed by the UIDAI by threatening enrollers with “action” if they turned any person away.

“Under Aadhaar, there is no provision to turn away residents who come to get themselves enrolled, and the quality of their biometrics can’t be decided by the operators on their own,” the Deputy Director-General of the UIDAI reportedly wrote to the newspaper that had carried the news. This is a prescription for “forced capture”: when the fingerprints do not leave an impression the first time, they are pressed against the plate a second and a third time, and when a fourth attempt fails, the machine gives up, records what is on offer, and the programme will let the rest of the enrolment proceed. The UIDAI has been silent on the consequences of forced capture.

Questions have arisen about persons with disabilities, some of whom may not have fingerprints or irises that meet the biometric standards required by the UIDAI for enrolment. A citizen journalist described the difficulties she had in getting an enrolment centre to accept her data – it needed the intervention of an official of the UIDAI in Delhi before the exercise was done.

In Pune, a man received his UID with his wife’s photograph appended to it. An article in The New Yorker describes how this embarrassment is sought to be averted: a computer operator sits in an office running through enrolment forms to make a cursory judgment whether the image matches the demographic information. “That day,” the journalist reports, “he had already inspected more than 5,000 photographs, and he had clicked “incorrect” 300 times: men listed as women, children as adults, photographs with two heads in them.” It seems there are infinite variations to the theme of error.

In May, “unidentified persons” walked away with two laptops and a pen drive which held data pertaining to 140 persons from an enrolment centre in a school in Hadaspur, Maharashtra. The back-up information was also on the same laptop. The data included “sensitive details” relating to passports, voter ID cards, bank accounts, photographs and a range of other information.

In July, five persons were arrested in Bangalore for issuing fake UIDs. The UIDAI heard about the racket when they were approached with complaints that “Global ID Solutions” was selling franchises to customers to take up Aadhaar enrolment for a non-refundable fee of Rs.2.5 lakh an enrolment kit. This episode exposed the perils of indiscriminate outsourcing.

In October, a software error resulted in hundreds of residents of Colaba in south Mumbai having their addresses recorded as Kolaba, Raigarh district. The enrollers claimed that this was a software glitch and that enrolees would just have to return another day to re-enrol. Only, the guidelines of the UIDAI do not have a provision for re-enrolling any resident.

One of the “documents” that can be used for enrolment is a “certificate of identity having photo issued by a Group A Gazetted Officer on letterhead”. On November 1, a doctor in a Tilak Nagar Hospital in Bangalore was found blindly signing certificates presented to him by touts who were collecting Rs.100 a certificate.

The list grows, indicating an array of problems, and these are only the visible and obvious errors. It raises questions about how infallible and incorruptible this system is. The problems being encountered behind the scenes are not yet known, and there is still no information from the UIDAI about how the de-duplication process is functioning, or how many have fingerprints that will not work to authenticate their identity.

Approved Introducer

The Demographic Data Standards Committee of the UIDAI had created two demographic categories: those with documents and those without. For the latter – and the poor are the primary constituents of this category – the committee recommended a system of “approved introducers”. The committee drew an analogy with the opening of a bank account without documents but with the help of an introducer. The account retains a link with the introducer. This was “generalised and expanded”, and the idea of the “approved introducer” was institutionalised.

Since the early days of enrolment, the awkwardness of the introducer idea has been evident. In January, the Pul Mithai enrolment centre in Delhi, which was located in a makeshift shack, was host to those whose jhuggis had been destroyed in the many demolition drives the city administration undertakes. Some of them had voter ID cards and ration cards and one of them brought along a driving licence, but these were not used in the enrolment.

As homeless people, they had been the subject of a survey conducted under the direction of a “Mother NGO” (non-governmental organisation) as part of Mission Convergence by which process the Delhi government drew NGOs into their executive fold. The survey resulted in a temporary card which carried their name, gender, approximate age, a photograph and an “ID number” that held a coded key to the point in the map where they were surveyed. It also declared: “This card has been issued on the basis of self-reported information by the cardholder….” In the UID enrolment process, it was found that errors in age, especially, were quite common. Since they were officially homeless, they were assumed not to belong to an address even when they believed they were residents of an identifiable spot in the area.

The enrolment form is not complete without an address to which the UID can be sent. So, an NGO lent its address. The columns asking for “information sharing consent” and for being given an Aadhaar-enabled bank account were ticked without anyone asking the enrolees whether they had other views on the subject. A young man of about 21 years had been the introducer for 70 people already – but knew none of them. He had no idea what his responsibilities or liabilities were should the information about the people he introduced be found inaccurate.

Some while later, the NGO received the UID numbers at its office. A visit in March revealed that over 250 letters from the UIDAI were addressed to various homeless people who were proving difficult to locate. Some months later, a similar situation arose in Geeta Colony in East Delhi where, between the date of enrolment and the time that the letter of information was received, the pavement had been cleared of dwellers. If banks do open accounts on the basis of UID enrolment, information will reach as far as the address on the enrolment form – the poor may never learn of it, and banks will find themselves answerable for misdirected mail and inoperable accounts.

It is no secret that the introducer system is failing the poor and exposing them to the probability of exclusion. Any alternative that is essayed, which does not care to know the poor as individuals may well end up stripping them of the identity they currently possess.

Usha Ramanathan works on the jurisprudence of law, poverty and rights.

Frontline Volume 28 – Issue 24 :: Nov. 19-Dec. 02, 2011

Pentavalent Vaccine Court Case: Govt Says, not we, the petitioners are corrupt

PIL on Pentavalent to aid pvt biz, says govt

TNN Jan 17, 2012,
KOCHI: The public interest litigation challenging implementation of Pentavalent vaccination programme in Kerala citing adverse effects is aimed at helping private companies supplying the vaccine, the central government contended on Monday.
Pentavalent vaccine, including the vaccine against Haemophilus Influenzae Type B (Hib), was rolled out across the State on December 14 last year as part of the Universal Immunization Programme.
National and international experts of World Health Organization investigated the deaths alleged to be due to Pentavalent vaccination in Sri Lanka, Bhutan, and Pakistan but were found to be not related to the vaccine, central government stated in the affidavit.

Pentavalent vaccine is available in Indian private market since 2004 and is being administered by private practitioners at an exorbitant price whereas the same is being given under Universal Immunization Programme of the central government freely, the affidavit said.
Out of a total 1.67 crore doses administered since 2004, 1.56 crore doses have been administered during the period of 2007 to 2011. Indian manufacturers for Pentavalent have increased from one in 2004 to five in 2009 due to the surge in demand, and Rs 6,000 is being charged for a single course of Pentavalent.
The intention of this petition is only to prevent the government from providing the vaccine free of charge so that commercial interests of private sector are protected, the affidavit states.
The central government also stated in the affidavit that more than 41,000 children have been vaccinated with Pentavalent since its introduction in Kerala and Tamil Nadu recently and no adverse event was noted. Pentavalent has been used in Goa since 2008, with more than 28,000 vaccinations until July last year, and no adverse event was noted, the affidavit said.
Countering a petition by a Wayanad-based NGO that the vaccination programme is being implemented without scientific health studies, the central government filed an affidavit at the Kerala High Court that pointed out that Pentavalent has been used for the past seven years by private players and 1.67 crore doses have been sold without any adverse effects

Dr Jagannath Chatterji ‘s response to the TOI article that has not been published ,is below :


It is a pity that the Govt of India, in tandem with private agencies like the Bill & Melinda Gates Foundation, the GAVI and PATH is misleading the public and ignoring genuine fears and concerns of the public.

It is true that deaths have occurred shortly after administering the vaccine (Pentavalent) in three neighbouring countries and the vaccine consequently pulled out. It has been reintroduced in Sri Lanka after tampering with the adverse effect reporting format which ensures that deaths cannot be linked to the vaccine. The same has been done in India.

Why is an agency like GAVI giving such a costly vaccine free of cost to the GoI? What interest does this private agency have? Is it not true that this is also a temporary arrangement and the GoI will have to spend a huge amount of money to procure the vaccine after the contract is over? What skullduggery is going on here?

Why doesn’t the Govt pull up the IAP for recommending and administering 1.67 crores of doses of a vaccine with highly questionable credentials? What long term follow up has been done on these children? How many of them have died? How many have suffered adverse reactions? Were the informed consent of the parents taken before administering the vaccine? Where are the papers to prove that?

The Nuremberg Code clearly says ALL medical interventions and prescriptions should follow the principle of Informed Consent. The GoI that is a signatory to this act cannot feign ignorance.

Dr Harold Buttram, MD, of the USA in a path breaking book has accused Pentavalent vaccines of causing Sudden Infant Death syndrome and also Shaken Baby Syndrome. The death reported in Kerala strongly resembles the latter.

Why was the press asked for “positive reporting” after a series of genuine negative reports appeared of this vaccine reflecting the genuine doubts of very senior doctors and medical scientists of our country? Is the press being gagged? Are the doctors and health workers free to report deaths and adverse reactions? One sincerely doubts.

I am sure the people of Kerala will not tolerate this chicanery and will give a fitting reply. What a mess we are in! We are having to battle our own Government to fight for the lives and health of our children! Will our Health Minister and his Secretary kindly stand up and upon oath tell us what the ground situation really is?

We are waiting for your explanation Mr Health Minister. Kindly let us know if the facts mentioned in this letter have been considered before the Central Govt replied to the Kerala High Court Enquiry.

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