#RIP – Mourning Reingamphi Awungshi, 21 year old from Manipur #Rape #Vaw

JUNE 11, 2013

This is a guest post by PRATIKSHA BAXI:  Kafila.org

When the police found Reingamphi Awungshi, a twenty-one year woman from Ukhrul district in Manipur brutalised, assaulted and dead in her rented apartment in Chirag Delhi on 29 May 2013, they did not file an FIR. Rather, the Malaviya Nagar police station, a site of anguished protests, began by designating her death as suicide, even as they waited for a post mortem report! Although the family argued that the state of her bloodied and injured body clearly indicated sexual assault and murder, the police ended up filing an FIR, after three days, as a case of abetment to suicide.

It seems very clear that the aftermath of the Delhi gangrape protests have not made a dent in practices of policing—it should not take hundreds of protestors to ensure the registration of a police complaint. Nor is it reasonable for the police without thorough investigation and competent medical examination of the body to conclude that the death was a suicide rather than murder; and that the injuries on the body, the outcome of substance abuse rather than assault. This is evidence of bias, rather than an impartial investigation.

But for protests, the case would not have been transferred to the Crime Branch, nor an FIR filed for murder.

Image from Justice for Reingamphi Awungshi

The police’s initial stance that this was suicide illustrated bias. The dead woman’s character was maligned to generate a motive for suicide. The police claimed it was suicide since the door of her room was locked from inside, ignoring the fact that her room led to another door opening into the landlord’s house. The police concluded that she overdosed herself without forensic analysis to determine whether or not the medicines found in her room, if consumed, could have led to toxicity. The police concluded that rodents nibbled her face and other parts of the body leaving her eye and nose in a bloody mess, without waiting for forensic analysis to establish rodent bites. The police assumed that this young woman who had shopped for her next breakfast would kill herself and then rodents in a reasonably well-kept room would assault her. Thereafter, the scene of crime was not secured and it is not even clear whether forensic samples were collected from the scene of crime.

The second post mortem, while the histological reports are awaited, after five days by a three-member panel of forensic experts, concluded that opinion of death could only be offered after the analysis of the viscera by chemical analysis and histopathology report. The PM report further held that two-fingers could easily pass through the vagina, hence the dead woman was habituated to sex—making it impossible to determine whether she was raped, without other forensic tests. Yet again the Delhi protests failed to persuade doctors that while clinical findings of whether or not the vaginal passage is distensible in a dead survivor may have very limited evidentiary value, such a victim cannot be characterised as a habitué. To characterise the victim as a habituated to sex, especially when she is dead, is to assume that the vagina can be examined as if it were a record of past sexual history of consensual sex. Surely it is equally possible that the vagina is a record of past sexual history of sexual violence. To characterise the victim, as a habitué is not only unconstitutional, it prejudices investigation and the framing of charges, if any person is ultimately held responsible for sexual assault.

Surely it is reasonable for Reingamphi’s family and supporters to suspect sexual assault and murder. It is reasonable to suspect the landlords’ relative who was stalking this young woman for over a month. It is reasonable to be suspicious because the family was not informed when the landlord called the police to break into the dead woman’s room. It is reasonable since sexual assault; stalking and/or murders of women from the North East in Delhi are a statistical high.

Why is there such toleration of violence against women from the North–East in Delhi? The fact is that sexual harassment of women from the North East is both sexist and racist. It is also a social fact that women from the North East are targeted as sexual objects. They are subjected to a racist and sexist gaze, which positions them as vulnerable “outsiders”. Branded, stigmatised and caricatured, they are extremely vulnerable to violence, in particular, to sexual assault.

Such forms of targetted violence of tribal women in Delhi is sufficient to declare Delhi a scheduled area or zone of emergency on the grounds that targeted atrocities against tribal women by non­–tribal men is routine. A provision permitting such declaration is available under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 which specifies that the state government is under obligation to identify ‘the areas where the members of the Scheduled Castes and the Scheduled Tribes are likely to be subjected to atrocities’ and adopt ‘measures so as to ensure safety for such members’.

However, the police almost never mobilises this law to protect Naga, Manipuri or Mizo tribal women from the discrimination they face in the city. Surely the police know that as a form of historic discrimination, such forms of violence have been classified in the law as atrocity. They should also remember that as per Section 4 of the PoA Act ‘whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed of duties by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year’. Non-registration of an FIR in sexual offences is also an offence, by virtue of the Criminal Law (Amendment) Act, 2013.

Let alone do their duty under these laws police officers routinely treat a complainant from any North–Eastern state as an exceptional and abject subject. It is as if the zone of exception—dramatized by the draconian Armed Forces Special Powers Act—lives in the heart of our city in everyday and ordinary ways.

The impunity and immunity bestowed on men who think that a Tangkhul Naga woman’s life can be exterminated without any investigation, prosecution, or without inciting a collective demand for justice has been permitted by our legal system. Our politicians too permitted this by ignoring the powerful protests against the AFSPA—a demand to recognise citizenship and justice—instead of repressing populations and suspending constitutional law. Our city permits this by creating zones of sexual exceptionalism where some cases find horrified publicity and others do not produce similar public anguish.

Our city does not experience the same horror today, as it did months ago, at the painful and brutalised death of this young woman—perhaps the details of brutalisation are not titillating enough! Perhaps most of us do not identify with a woman whose identity seems so far removed from what we know as familiar? Perhaps it is less disturbing to believe the police version of suicide?

Yet even as we recall every painful instance of violence that was called out, in the aftermath of the December protests, we must remember than Tangkhul Naga women struggling to make the city their home also want azadi from violence. Tangkhul Naga women also protested with us to make Delhi safer.

As we mourn for Reingamphi Awungshi, we must also continue to raise our voices against violence against women, especially sexual assault. Yet, should we also now not reflect where we failed? Fact of the matter is that far from creating prevention of violence and increased safety for women, the forensic detailing of what men do to women’s or girl’s bodies in the media, even though their names were withheld, acted as public pedagogy of what men can do women. Sadly, rape cultures thrive despite the protests, and some may argue, because of the voyeuristic representations of the protests.

Alas, change is a long way away. The cry for transformation demands the sustained energy of the Delhi protesters, who should not be satisfied with increased punishment in the statutes. The aspiration for freedom demands that minimally we say to Reingamphi Awungshi, we are desperately sorry.

Pratiksha Baxi is Assistant Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University

 

 

Related articles

• A girl from northeast was found dead in Delhi, NO FIR even after 24 Hrs #Vaw #WTFnews (kractivist.wordpress.com)
• Delhi – 3 days and a minister’s intervention to file a FIR in North East death case #Vaw #WTFnews (kractivist.wordpress.com)
• UN Special Rapporteur on Violence against women, its causes and consequences finalises country mission to India (kractivist.wordpress.com)

 

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 23^rd 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 12^th 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 6^th April 2013, and sponsored by ICSSR (NCR) and 160 persons present of the seminar held at Indian Social Institute, Bangalore on 13^th 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.

Related articles

• Indian Army Magic Formula to have beautiful and successful daughters ? #WTFad #AFSPA #Kashmir #Manipur (kractivist.wordpress.com)
• The Struggle For Justice In Manipur #AFSPA (kractivist.wordpress.com)
• UNHCR rapporteur calls for repeal of AFSPA in India (kractivist.wordpress.com)
• #India- Criminalising People’s Protests #Iromsharmila #AFSPA #Vaw (kractivist.wordpress.com)

 

#India- “Women Against Sexual Violence and State Repression” to the Justice Verma Commission #Vaw #Justice

(Women Against Sexual Violence and State Repression (WSS) is a non funded grassroots effort initiated in November 2009, to challenge the violence being perpetrated upon women’s bodies and societies. We are a nationwide network of women from diverse political and social movements comprising women’s organizations, mass organizations, civil liberties, student and youth organizations, mass movements and individuals. We unequivocally condemn state repression and sexual violence on women and girls by any perpetrator(s). We have conducted fact findings and brought out several reports of cases of sexual violence in conflict areas, notably in Jharkhand, Odisha, and Chhattisgarh; and have collaborated with women’s organizations in Kashmir and the North East in their struggles in such situations. We attempt to support women victims, approach courts and human rights institutions for redressal, and conduct awareness campaigns.)

Representation by  “Women Against Sexual Violence and State Repression” to the Justice Verma Commission.

(Women Against Sexual Violence and State Repression (WSS) is a non funded grassroots effort initiated in November 2009, to challenge the violence being perpetrated upon women’s bodies and societies. We are a nationwide network of women from diverse political and social movements comprising women’s organizations, mass organizations, civil liberties, student and youth organizations, mass movements and individuals. We unequivocally condemn state repression and sexual violence on women and girls by any perpetrator(s). We have conducted fact findings and brought out several reports of cases of sexual violence in conflict areas, notably in Jharkhand, Odisha, and Chhattisgarh; and have collaborated with women’s organizations in Kashmir and the North East in their struggles in such situations. We attempt to support women survivors of such violence, approach courts and human rights institutions for redressal, and conduct awareness campaigns.)

WSS notes with concern that the entire public debate arising out of the recent Delhi gang rape incident has centered round the issues of “enacting a strong law” and “prescribing harsher sentences”. It has failed to recognize more basic issues – the enormous social obstacles encountered in registering complaints, in the conduct of thorough investigation, in the protection of witnesses, in fast and efficacious prosecution and in unbiased adjudication – in other words, the issues of implementation of the law, and the functioning of the police and judicial machinery – which necessarily precede sentencing. The debate has also largely failed to take into account the deeply patriarchal character of our social institutions, and law enforcement machinery which render women vulnerable to violence in the family, in the larger community, in their work places and public places.

In particular, in this representation, WSS would like to focus on the even more serious situation that arises when patriarchal attitudes are reinforced by caste, communal and class inequalities or perpetrated by the state, that is, when sexual violence is inflicted as a part of an assault by a dominant community as in a caste attack or communal riot; or when sexual violence is inflicted on women in custody in a police lock-up or jail or state institution; and when sexual violence is perpetrated by the police, security forces or army. Rapes occur daily in this country and adivasi, dalit, working class women, women with disability, hijras, kothis and sex workers are especially targeted based on the knowledge that the system will not support them when they file complaints of rape. We also note with concern that our suggestions are limited to what will affect women and our suggestions on sentencing must be also interpreted to mean that at least equivalent sentences should be imposed on perpetrators of the same crimes upon children. The current sentencing laws on those are woefully inadequate.

However, our reach in terms of getting input directly from these communities is still limited by the people we know and have worked with, and we hope that our submissions do not contribute to limiting the discussion to those groups and people who have access to information via the internet and English newsmedia, and we hope the Justice Verma Commission carries out wide ranging consultations with women in every locality, with dalit groups, rural groups, labor groups, and groups working on communal sexual violence and sexual violence against adivasi women, groups working in areas in conflict with the state, and groups working on disability and transgender issues.

Here are our suggestions:

A. In regard to Sexual Violence by Police and Security Forces

Defining custodial violence: Any incident of sexual assault by police/ security forces or SPOs accompanying them, irrespective of where it occurs, should be treated as custodial violence since the perpetrators exercise power and control over the people of that area owing to their position of authority. Such sexual assault should be considered to be a case of aggravated assault.

Security of women detainees:  The lack, especially in remote/ small police stations, of women constables (in whose presence women under-trials and prisoners are more likely to be safe), is a serious issue. If there is no woman constable on duty, that particular police station must not be allowed to detain women. Women constables must be present throughout any interrogation of women detainees. Arbitrary or proxy arrests and illegal detention of women and children during search operations in conflict areas, which render women extremely vulnerable, have to stop.

Rule of law:  There must be strict adherence to the procedures and safeguards for protecting women in custody and women should be produced before the court at the earliest opportunity, even before the mandatory 24 hours, to be able to disclose original violations as well as further ill-treatment (if any) while in custody of police or jail authorities. Their families also must be intimated within this time period of their whereabouts.

Detention of women: The rules about arresting and detaining women at night should strictly apply to all women and transgender people, including sex workers. Transgender people must be handled only by women police officers and not male police officers, given the history of custodial violence against them.

Judicial recognition:  The judiciary must take suo moto cognizance of any irregularity in the arresting procedure and delays in presenting the accused before the magistrate. Any non-compliance of the D.K. Basu guidelines and other provisions of the Criminal Procedure Code should attract strict action and accountability from the Court. Once the woman has been presented before the magistrate, it is the responsibility of the judiciary, to ensure that her dignity and safety are ensured and her complaints of violations of her rights addressed. If any violation of the rights of a woman takes place in police or judicial custody, the judiciary should take the strictest action against the perpetrators in a time bound manner, and she must immediately be given the option of being transferred to custody outside the state.

Investigation and registration in cases of custodial or state violence: It cannot be expected that an aggrieved person/family who has been violated by personnel of the police station of her/their area, will go back to report the violation to that very same police station. She should have the option of registering cases in another district or state, and the case must be investigated by an authority not involving local police if they are the perpetrators. Special guidelines must be evolved for such cases along the lines of the NHRC guidelines for encounter killings.

Vulnerability in conflict situations:  There must be a quick and effective response from the district and state administration when a woman shows the courage to make a complaint of sexual violence. Instead, the rape survivor, her family and other witnesses are only further terrorised by the people in authority. The administration should take suo moto cognisance of such complaints, whether they come directly, through the media or any other source. Third-party complaints of custodial sexual violence should also be allowed to initiate the process of safeguarding the survivor behind bars from further assault in custody.

All state-supported private militias and vigilante groups, such as Salwa Judum and others in the conflict areas of Central India, Manipur and Kashmir must be disbanded. Action must be taken against the members of these groups accused of sexual violence and other human rights violations as it would apply to the police and security forces, i.e., treating their cases as aggravated sexual assault.

Registering cases:  The FIR of all victims should be registered, even where the perpetrators are from the Central Armed Police Forces or the Army, and refuge must not be taken under impunity provided under unjust laws such as the Armed Forces Special Powers Act. In particular if a Superintendent of Police receives a complaint that a particular police station has refused to register an FIR, he must be made personally liable to get the FIR registered immediately and to conduct an enquiry against his erring subordinate, with legally enforceable consequences for not doing so within 48 hours of being informed. .

Criminal prosecution: Sexual assault by the Central Armed Police Forces or the Army must be brought under criminal law. In cases of sexual offences, the law should clearly state that the Army has no jurisdiction to prosecute the accused member of the armed forces. The accused must be handed over and all investigation must be done by the police strictly in accordance with the law, and supervised by a senior police officer. The requirement of sanction for prosecution under Sec. 197 of the Criminal Procedure Code should be done away with in cases of custodial sexual violence and other human rights violations.

Facilitating investigation:  Immediate arrest of the accused and suspension of all accused from their posts, once the FIR is registered or suo moto cognizance of the crime is taken, is essential. The accused should not be allowed to exercise any authority in the area where the complaint of sexual violence is made, till the final determination of the complaint. Armed forces personnel and public servants against whom there are serious charges of violence against women, or who have been named in FIRs alleging violence, should not be considered for national awards and military honours or promotions until their names are cleared.

Command responsibility:  In cases of sexual assault committed by State personnel, the authorities higher up in the hierarchy (SP and the Collector or any other senior officer in the chain of command of the Central Armed Police Forces) should be held criminally liable for crimes committed by those under their command or within their control. Ignorance or lack of information about sexual violence committed in his/her jurisdiction cannot be an excuse for inaction.

Sentencing: The sentences for custodial rape and sexual assault must be enhanced compared to the sentences for civilian rape and sexual assault, to act as a deterrent for security officers misusing the power they have derived from being officers of the state.

Speedy investigation: The responsibility of a proper investigation falls on the investigating agency. Any delay, shoddiness, partisanship and inefficiency in collection of evidence, and lack or delay in medical examination etc should be seen as a criminal offence and negligence of duty, and the concerned officers or personnel should be penalised for negligence or dereliction of duty and/or charged with complicity in the crime.

Protection of victims and witnesses:  Protection of victims and witnesses has to be ensured, from the pre-trial to post-conviction stages, in accordance with the recent jurisprudential developments, the Law Commission’s 198th Report of August 2006, and decisions of the Supreme Court.

Liability and damages:  It is the government’s responsibility and duty to protect the rights of women, the responsibility grows manifold when the woman is in the custody of the State. Considering the gravity of the crime, the rape survivor has a right to reparation for all the costs incurred in fighting for justice legally, to recover medically, and to recover loss of livelihood or shelter or even ability to stay in the same area as before, as a consequence of fighting a case against the perpetrator.

Reparative Justice:  The State must be obliged by law to make provisions for free and high quality medical treatment, psychological care, shelter and livelihood in order to overcome possible destitution and social ostracism. This should be done through effective implementation and budgetary support of existing legal provisions and schemes for compensation/ rehabilitation for sexual assault. Such compensation should not be linked to the criminal trial and prosecution. Schemes include, but are not limited to, the Victims Compensation Scheme (brought about through a 2008 amendment to section 357A of the Cr PC) as well as the National Commission for Women’s scheme for assistance and support services to victims of rape.

B.  In regard to sexual violence against marginalized groups or by dominant  groups.

1. While dealing with the violence against women belonging to marginalised groups like Dalits, Adivasis, denotified groups, religious, gender, sexuality and other Minorities, the dominant position of the perpetrators must be kept in mind and such cases should be probed under the specific laws applicable to these atrocities. Sexual assault in situations of conflict based on community, ethnicity, caste, religion, gender, sexuality and language, ought to be treated as specific circumstances of aggravated sexual assault.
2. Since there are specific kinds of sexual violence documented to be specifically perpetrated against dalit women, such as parading naked, groping, tonsuring of hair and mutilation; against minority community women during communal riots such as mutilation the genitals and womb, cutting breasts; against transgender women like stripping, burning or mutilating the genitals, forcibly cutting hair, stripping and/or redressing in clothes to fit assigned gender, confinement, rape by insertion of objects – all of which are intended to sexually assault, degrade or humiliate women who are so targeted, these specific offenses should be defined along the scale of aggravation with specific punishments which are not dependent on the discretion of the judge.
3. Meeting the burden of proof that an offence was committed with an intent to humiliate and intimidate a member of the Scheduled Caste/Tribe in the Prevention of Atrocities Act has been made impossibly difficult leading to low rates of conviction. When the perpetrator is of a dominant caste/class/religious/gender/sexuality group and the survivor of assault is of an oppressed group, the power difference will always mean that the police, criminal justice system, media, and public will be fearful of taking the side of an oppressed community. This means that dalit, adivasi, religious and gender/sexuality minority community women, and women with disabilities are routinely targeted for the reason that it is harder for them to fight a legal case against the perpetrator. Thus when the perpetrator is of a dominant caste/class/religious/gender/sexuality group and the survivor of assault is of an oppressed group, these acts should be defined to automatically be in place and the burden of proof that such targeting did not take place should be on the perpetrator.
4. Refusal to file an FIR based on caste, class, gender identity, profession, or disability of the survivor must be legally punishable through reporting to superior police officers or officers at other police stations. Once such a complaint is made, the  officer who hears it must be legally liable to file an FIR immediately and conduct an enquiry against the police officers who refused to file the FIR. Likewise refusal to provide medical care on these grounds should be prosecutable by law.
5. Acts like the Karnataka Police Act and the Hyderabad Eunuch Act that place the entire transgender community under suspicion like the colonial Criminal Tribes Act, and demand their routine reporting to the police act as a vehicle for police harassment and sexual violence against transgender women. These should be immediately repealed.
6. Khap Panchayats, casteist-communal organizations and other kinds of vigilante groups are responsible for spreading and normalizing misogyny. The perpetrators of honour killings, honour-related crimes and other moral policing, including those who abet this brutal crime, must be promptly prosecuted and awarded severest punishment. Specific legislation must also be introduced to punish the full range of violent and abusive acts that attempt to restrict the choices of women including socio economic boycott, expulsion from the home or community, etc.

C. In regard to the definition of sexual assault.

Expansion of definition of sexual assault: The expansion of the definition of penetrative sexual assault under Sec. 375 IPC, beyond peno-vaginal penetration (rape) as proposed in the Criminal Law Amendment Act is a step in the right direction.  It is imperative that the definition of sexual assault is broad enough to include anal, oral rape, digital rape, rape with objects etc. and also includes sexual assault against transgender people. Section 377 should be repealed as it criminalizes consensual same-sex relations and all its provisions for punishing

Gap in law of sexual offences: However, there continue to be serious gaps in the codification of crimes of non-penetrative sexual assault. The gap between ‘outrage of modesty’ (S. 354 IPC) and ‘penetrative sexual assault’ remains large. We believe that sexual crimes form a continuum, and that the graded nature of sexual assault should be recognized, based on concepts of harm, injury, humiliation and degradation, and by using the well-established categories of sexual assault, aggravated sexual assault, and sexual offences.

‘Outraging modesty of a woman’ to be replaced with ‘violation of bodily integrity:  S.354 and S. 509 IPC, which contain archaic notions of ‘outrage of modesty’, ought to be repealed, and a clear gradation of offences and punishment as mentioned above should be inserted. We believe that ‘sexual assault’ should rest firmly on the concept of violation of bodily integrity and dignity, and sexual harassment should be defined as it is in the Vishaka Guidelines.

New sexual offences to be defined: New crimes need to be formulated to punish acts of attempt to rape, stripping, parading naked, groping, tonsuring of hair and mutilation which are intended to sexually assault, degrade or humiliate women who are so targeted. Further stalking, flashing, gesturing, blackmailing as well as sexual harassment must be codified as crimes under the rubric of sexual offences. These should include any electronic and other forms of technology which promote rape as a game, promote electronic stalking or forced viewing of pornography, etc.. We welcome the introduction of a specific offence for acid attack.

Gender neutral sexual assault: The formulation of the crime of sexual assault as gender neutral in all circumstances, as proposed in the Criminal Law Amendment Act, makes the perpetrator/ accused also gender neutral, i.e a woman or man can be accused of sexual assault. We believe that the perpetrator has to remain gender-specific and limited to men as perpetrators, as there is no empirical evidence to support a finding to the contrary, and in light of this gender neutrality of perpetrator can be used to file false cases against women who complain of rape. Hence we strongly oppose the gender-neutrality clause in relation to perpetrators under Sec. 375 IPC.

Gender neutrality of the victim: The survivor of sexual assault should be treated as gender neutral with respect to the law, even if the perpetrator is still defined as male. With respect to all forms of violence, the victims/survivors should not be described just as women, but as ‘person’, as transgender people face immense targeted sexual assault and in some cases of state and custodial violence the victims can also include men. In cases of abuse of children also children of all genders are targeted.

“Purpose”: We also express a deep problem with the expression ‘penetrate for a sexual purpose’ in Sec 375(a) of the proposed Criminal Law Amendment Bill 2012. We maintain that any contact without consent is what must be punished and the intent of the perpetrator is both irrelevant, and impossible to prove.

Consent:  Consent must be clearly defined as verbal agreement which can be withdrawn at any point during sexual activity. Initiation of sexual activity or sex work is not an invitation to rape or sexual assault and battery. The lack of marks on the body can not be used as evidence of consent (as in the Suryanelli case) because sedation, rape based on threats of retaliatory violence, and rape where the perpetrator holds economic, caste, communal, custodial or state power over the survivor can all be perpetrated without leaving signs of force.

No exception to consent rule for marital Rape: Rape within marriage should be recognized and should be strictly penalized.  The punishment for rape should be the same irrespective of whether the perpetrator is married to the survivor of rape or not.

No exception to consent during medical procedures: Consent should be required even when penetration/genital exam of a patient by a doctor occurs for “proper hygienic or medical purposes” which is currently a defined exception for rape under the Criminal Amendment Bill 2012. Unless the patient is unconscious, doctors must have the consent of a patient for any form of penetrative or genital physical exam, and punishment for doctors abusing their privilege as doctors should be higher than for civilians.

No exclusion of prosecution of Public Servants: We suggest an exclusion of the application of S. 45 and S. 197 Cr PC to the provisions of sexual assault, in order that the existing widespread impunity for sexual assault where it is committed by public servants, is ended.  We believe that no sexual assault can ever be construed as being perpetrated “in discharge of official duty” and therefore the statutory requirement of prior sanction from the government for prosecution of public servants ought not to be extended to the crime of sexual assault;

Age of consent: The age of consent should be kept at 16 years of age since the reality of caste, communal and moral policing particularly when it comes to young people from different religions and castes falling in love and running away, makes misuse of the age of consent law possible to  prosecute young lovers who go against parental dictates of ‘arranged marriage within the fold of one caste/religion’.

Consent during sex work: Rape during sex work must be recognized explicitly as a sexual offence.  Sex work should be decriminalized so that what takes place without consent can be clearly distinguished from the specific acts the sex worker is paid for and has consented to.

Inclusion of women in drafting process: Local womens’ groups in India, including those of adivasi, dalit, religious minority women, transgender women, self help groups  and woman panchayat representatives must be consulted in drafting laws upholding women’s rights at home and in public.

D. In regard to pre-trial, trial and evidence procedures.

1. SOPs like those of Delhi police should be reviewed to ensure that they reflect a gender sensitive and meticulous approach to investigation and officially adopted by all police departments in states and UTs, and should be made publicly accessible. Violation of the SOP by police should be made punishable by law, especially with respect to refusing to file FIRs.
2. The two finger test and checking of old tears hymen which are widely used during medical examination of the rape victims to determine whether they are ‘habituated to sexual intercourse’ or not, must be explicitly barred and only fresh damage relevant to the sexual assault in question should be recorded. Likewise build and health of the survivor of rape and presence of marks on her body to determine whether she had or could have “resisted the assault” is irrelevant as mentioned above – use of threats, weapons, sedation, etc can all be forms of coercion that do not leave marks or allow the survivor to fight back. Testing should be done by women doctors if possible, and if not by any doctor the survivor is comfortable with –no survivor should be turned away for lack of a female doctor, and the survivor should be able to be accompanied by a chosen family member at all times during medical tests. Hospitals turning away survivors of sexual assault should be punishable by law. Victims should not be subjected to lie detection tests as is done in some parts of the country, and forensic tests must include DNA tests for which central laboratories and a DNA database must be set up to which samples can be mailed.
3. Police personnel and all state officers who deal cases of sexual assault must undergo compulsory sensitization about handling these cases, so that they do not traumatize the survivor of assault with irrelevant and traumatic questions or statements of judgement or dismissal. They must also be sensitized specifically to deal sensitively with survivors of sexual assault who are dalit, adivasi, religious minority, transgender women, sex workers, and women with disabilities. Each complaint of sexual harassment and molestation must be taken seriously and failure to file an FIR must be punishable by law.
4. Women police officers should be available and visible at a women’s help desk in every police precinct for each step of processing a sexual assault or harassment complaint, although no survivor should be turned away for lack of a female police officer. The number of women at all levels of the police force must increase to 50%, and within this dalit, adivasi, religious, gender and other minority women police officers should be represented according to their proportion of the local population. For their retention, proper housing, women’s toilet, and training facilities as well as a cell to address sexual harassment complaints within the police force must be made available. A minority of policewomen deployed to ensure safety for women prisoners are not able to be effective if they are pressured by a male majority in their workplaces.
5. Trials in rape cases should be concluded within a 90 day period, with trials postponed only to the next working day and without any unnecessary delays. All pending cases of rape (all India-100,000, Delhi 1000) should be dealt with by specially constituted courts with both rural and urban accessibility within 90 days.
6. Trials pertaining to sexual offences should be conducted as far as possible by women judges, and in cases of SC/ST or communal violence, by women members of the minority community. The number of judges, especially women judges, must also be increased in lower level courts and vacancies in these courts must be filled up. A special cadre of Public Prosecutors must be trained to prosecute cases of sexual assault. The trainings should include understanding of the crimes of sexual assault, gender sensitivity in the conduct of the trial and a comprehensive understanding of the laws relating to sexual assault.
7. There should be specific provisions for recording the testimony of disabled survivors of assault or witnesses. Cases involving sexual assault against disabled women often end in acquittal as their testimony is either not recorded at all, or is recorded without the help of independent interpreters.
8. Guidelines for victim and witness protection should be available for victims of violation of bodily integrity (outraging the modesty in the current law) as well as all forms of sexual assault, and bail should be canceled for cases where intimidation can be shown.
9. In trials of sexual offences, the victim/survivor, her family members or members of women’s organizations representing the complainant should ordinarily be permitted to engage a counsel of her choice to assist the prosecution. In addition free legal, medical, psychological and rehabilitative services should be made available to enable working class women to pursue legal justice.
10. Even in an in-camera trial, on the request of the victim/survivor, her representatives should be permitted to remain present.
11. Guidelines must be laid down for the cross examination of a survivor of sexual violence, particularly highlighting the changes in the CrPC sections which now do not allow character assassination or looking at past history of the survivor.
12. There should be a strict code of conduct and binding jail-time punishment for officials holding public office, including ministers etc while commenting on cases pertaining to sexual assault or rape. Judges who deal with sexual assault/ rape cases should be sensitized and held accountable with legally enforceable punishments for dismissing rape cases based on violating the constitutional right of every person to a fair hearing – by disbelieving the rape of a dalit woman as in the Bhanwari Devi case, or for suggesting extra-legal remedies or marriage to the accused instead of strictly pursuing legal justice for the crime.
13. The pending cases against security forces, police and wardens of Nari Niketans and other protective homes for girls and women must be dealt with on a priority basis so that instead of inflicting further violence these institutions play their role of providing thorough investigation and appropriate support.
14. The chosen gender of a transgender or intersex person should be respected during trial.  Transgender people are often punitively raped for crossing the boundaries of assigned gender and the rape trauma is compounded by their bodies and minds being handled in ways to remind them of their assigned gender. The trial should not further increase that aspect of the trauma.
15. A date base of cases of sexual assault be maintained online and be publicly accessible, to track the implementation and performance of the law in each registered case, to help identify weak links. The name of the survivor must not be mentioned, but the neighborhood where the assault took place, and the progress on the case must be made publicly known on the internet and must be available at each local police station.
16. Any media establishment that publishes the name or contact information of a survivor of rape should be routinely punished. Likewise there should be punishment for media reports that witness and broadcast images of sexual violence without having first immediately contacted law enforcement authorities. There should be publicly available letter boxes and an online site where reports on such media misuse can be directly sent.

E. In regard to punishment for rape.

In cases of aggravated sexual assault, punishment should be for life imprisonment with no remission or parole.

Sentences should run consecutively instead of concurrently in sexual crimes.

Sentencing should be spelt out as much as possible for different extents of punishment, degradation, harm and repetition of the act of sexual violation, so that judicial discretion is limited to small difference in the nature of the crime rather than focusing on the socioeconomic standing of the survivor and perpetrator.

WSS does not support death penalty or chemical castration as a punishment for rape. We need to evolve punishments that act as true deterrents to the very large number of men who commit these crimes. Cases of rape have a conviction rate of as low as 26% showing that perpetrators of sexual violence enjoy a high degree of impunity, including being freed of charges.  Our vision of justice does not include death penalty, which is neither a deterrent nor an effective or ethical response to acts of sexual violence. We are opposed to it for the following reasons:

1. We recognise that every human being has a right to life. We refuse to deem ‘legitimate’ any act of violence that would give the State the right to take life in our names. Justice meted by the State cannot bypass complex socio-political questions of violence against women by punishing rapists by death. Death penalty is often used to distract attention away from the real issue – it changes nothing but becomes a tool in the hands of the State to further exert its power over its citizens. A huge set of changes are required in the system to end the widespread and daily culture of rape.
2. There is no evidence to suggest that the death penalty acts as a deterrent to rape. Available data shows that there is a low rate of conviction in rape cases and there is a strong possibility that the death penalty would lower this conviction rate even further as it is awarded only under the ‘rarest of rare’ circumstances. The most important factor that can act as a deterrent is the certainty of punishment, rather than the severity of its form.
3. As seen in countries like the US, men from minority communities and economically weaker sections make up a disproportionate number of death row inmates. In the context of India, a review of crimes that warrant capital punishment reveals the discriminatory way in which such laws are selectively and arbitrarily applied to disadvantaged communities, religious and ethnic minorities. This is a real and major concern, as the possibility of differential consequences for the same crime is injustice in itself.
4. The logic of awarding death penalty to rapists is based on the belief that rape is a fate worse than death. Patriarchal notions of ‘honour’ lead us to believe that rape is the worst thing that can happen to a woman. There is a need to strongly challenge this stereotype of the ‘destroyed’ woman who loses her honour and who has no place in society after she’s been sexually assaulted. We believe that rape is a tool of patriarchy, an act of violence, and has nothing to do with morality, character or behaviour.
5. We also believe the law should punish rape with murder more strongly than rape without murder, so that the law does not provide an incentive for the perpetrator to kill the survivor of rape.
6. An overwhelming number of women are sexually assaulted by people known to them, and often include near or distant family, friends, husbands, workplace superiors and partners. The awarding of death penalty rests on the logic that rape and battery are rare events. Awarding equal punishment for the same crime would lead to a large portion of the male population being awarded death penalty and any penalty has to be feasibly equally applied to the entire population of perpetrators.
7. With death penalty at stake, the ‘guardians of the law’ and the perpetrators will make sure that no complaints against them get registered and they will go to any length to make sure that justice does not see the light of day. Who will be able to face the psychological and social consequences of having reported against their own relatives when the penalty is death? In cases of sexual assault where the perpetrator is in a position of power (such as in cases of custodial rape or marital rape or caste and religious violence), conviction is notoriously difficult. The death, penalty, for reasons that have already been mentioned, would make conviction next to impossible.

Chemical castration is also a problematic sentence since

1. It violates the fundamental right to bodily integrity and this can not be violated by the State.

2. It misrecognises much of the violence in rape. Assault and battery are carried out with fists/rods/acid and other weapons and chemical castration may not prevent a perpetrator from using these

3. We feel that this penalty would also, like death penalty, not be awarded equally to all perpetrators irrespective of class, caste, religion and socioeconomic background, but be used selectively in some cases.

F. In regard to the urgent need for making workplaces and homes of women more safe.

1. The Committees against Sexual Harassment which are to be constituted in various state and private establishments, including informal sector worksites, houses where domestic workers work, construction sites, homes where women gather to do piece-work or beedi/agarbati rolling, sex work sites, and NGOs, should be constituted with priority and urgency as per the Vishakha judgment. Renewal of formal workplace licences to employ workers should be made contingent on this. The said Committees should function independently and effectively and not be nominated by the employer to avoid conflict of interest, and they should create an atmosphere of no tolerance to sexual harassment. This would go a long way in ensuring dignity and empowering women at their workplace.
2. Section 14 of the proposed 2012 amendment to the sexual harassment bill which punishes a woman for a so-called false complaint must be scrapped, as must clause 10 suggesting a conciliation as the first step – this would amount to covering up sexual harassment which is a criminal offence. The Bill should also take the caste, class and religious dimensions of the perpetrator and the victim into account, and mandate that women should not be forced to comply with gender specific dress codes and women employees should be able to able to choose their dress code.
3. It is a common observation that the Domestic Violence Act is poorly implemented in most States with government servants being given additional charge of Protection Officer, lack of proper Shelter Homes for women victims of domestic violence, abuse within those shelter homes and on the streets for those rendered homeless by domestic violence, and poor understanding of judicial officers of the powers of civil injunctions and specific reliefs available to them
4. Women employees working in night and early morning shifts should be
   provided safe public transport facilities by the employer, and both public and private forms of transport must be effectively regulated and monitored for safety by the government. The routes from public transport sites to housing areas must be well-lit and tinted window vehicles should be strictly monitored.
5. There should be an expansion of the public transport system and the government should bring a public-transport-for-women-on-demand facility for any neighborhood with a number of working women coping without public transport, including dispersed adivasi settlements and urban slums, functioning in the same manner of response to demand as anganwadi-on-demand. Strict implementation of women’s general compartment in all trains and women’s seats in all inter-city buses is necessary.
6. The number of affordable working-women’s hostels to ensure safe accommodation for single working women must be increased. All out-station girl students studying in colleges must be provided cheap and safe accommodation by their respective institutions.
7. Due to its impact on physical and mental health and a high degree of mortality, rape is also a public health issue. The public health workforce (ASHA and ANM workers) need to be trained in sensitizing at the family and community level in destigmatizing rape-survivors, enabling them to file FIRs and access legal provisions, providing medical care and counseling, and encouraging women to speak out and seek justice. The ASHA workforce should also have dalit, adivasi, religious, gender and other minority women represented among them according to their presence in the local population to enable local women to feel comfortable reporting sexual assault. All public hospitals must be trained and equipped to immediately file an FIR and conduct a proper preliminary medical exam on behalf of patients who have survived rape For this the budget allocation of the government to the women and child, health and public transport departments must be accordingly increased by the next Budget.
8. Effective and 24 hour functional women helpline and other emergency services should be provided around the clock and should be well advertised by video and audio messages in rural and urban areas. Emergency telephones to this helpline must also be available at all bus and train stations. Calls should be addressed around the clock by enough specially trained staff to meet the demand, and calls should be automatically recorded for later review, and the staff should be able to dispatch immediate vehicles to assist women facing an emergency. Disciplinary action must be taken against staff for inappropriate or inadequate responses.
9. The state should take over agencies that provide women domestic workers, the conditions of service of domestic workers must be laid down and effectively implemented, and complaints of sexual violence made by them promptly redressed.
10. Institutions such as the National Human Rights Commission (NHRC), National Commission for Schedule Castes (NCSC), National Commission for Scheduled Tribes (NCST), National Commission for Minorities (NCM), National Commission for Women (NCW) and the corresponding State Commissions, created for safeguarding constitutional provisions and protection of vulnerable groups must be more proactive. They should be made to respond to all complaints lodged with them in a time-bound manner. There should be systematic and regular review processes by independent bodies involving women’s groups, put into place to audit the work of these institutions
11. The system of shelters for women should be greatly expanded, and every state-based shelter home for women, nari niketans, remand homes, juvenile delinquent homes, shelters for disabled children, orphanages, as well as schools, prisons and areas under army patrolling or combing operations should have a schedule of inspections to probe for ongoing sexual harassment or assault by committees whose members are independent of the government. The people confined within should have the right to insist on 1 person whom they trust outside jail to accompany the team when it does these surprise checks
12. The current policy of clearing the streets of vendors, closing shops by a specific hour of night and chasing away other people who occupy public space at night makes the street more unsafe for women. This policy should be stopped as a greater presence of people and well-lit public areas at night are essential in reducing the danger to women traveling to and from work as well as homeless women.  Women should be given priority in being given vendor licenses and employment in public transport.

G. In regard to Discouraging Patriarchal Culture.

1. All those persons against whom charge sheets have been filed for rape cases must be tried and either cleared of those charges, or sentenced and barred from contesting elections for public bodies by the Election Commission.
2. Advertisements, movies and public materials that condone, trivialize or misrepresent violence against women and sexual harassment should be banned.
3. Women have been carrying out powerful movements against liquor which is found to be connected to increase in domestic violence and incidents of sexual assault. The demands made by women in their local areas must be responded to by local authorities, who must act against the liquor mafia.
4. Restrictions on movements and intimidation of women’s groups and democratic rights groups, while conducting fact-findings of incidents of sexual and other forms violence in conflict areas, have to stop. Repression, labelling and intimidation of women activists and human rights defenders must end.
5. Mass visible and audio messages on what constitutes sexual offenses and what are the facilities available to address it and punishment for the same, should be displayed in all public vehicles and public places such as markets, bus stands, train stations, etc. These areas should be accessible by people with disabilities to reduce their vulnerability due to being confined at homes or shelters.
6. School curricula should include basic information on how stalking, harassment, and touching another person without consent constitute unacceptable and illegal behavior, and the government should set up a training module for at least 2 staff members from each school to help children to report cases of domestic sexual assault. Such teaching should also happen in prisons. Caste, communal, gender identity and disability based discrimination against dalit, adivasi, religious minorities, gender and sexuality minorities, people with disabilities, homeless and working class people, etc. should be clearly and unequivocally taught to be unacceptable. This will greatly decrease their vulnerability to sexual assault.
7. All departments that deal with disability pension administration should have a clearly marked desk where people can go to report sexual harassment and assault. They as well as police stations should carry information for complaints procedure and all awareness material in accessible formats to cater to people with disabilities  (Braille, audio, audio-video with same language sub-titling, large print, easy to read and pictorial guidance and availability of sign language interpreters). The inaccessibility of police stations and their present lack of capacity to interpret complaints from women with disabilities must be addressed in the long run.
8. The legal age for young girls, transgenders, and boys to legally leave their biological homes and exercise autonomy as individuals, due to abusive situations at home should be lowered to 16 to give them enhanced protection against false cases filed by families and family violence. They should be able to chose a guardian instead of having to go to a juvenile detention home.
9. Implement 50% reservation for women in elections at all levels, with reservation for minority communities in proportion to their presence in the local population.
10. Create a National Commission to monitor implementation of the CEDAW.

Related articles

• No candlelight protest for Lalli Devi #Vaw (kractivist.wordpress.com)
• #INDIA- Disturbing rise in male intolerance to empowerment of women #delhigangrape #vaw (kractivist.wordpress.com)
• 45 custodial rapes in nine years, says rights forum (thehindu.com)
• #India- Blind to what, Your Honour? #Vaw #Judiciary (kractivist.wordpress.com)

Mining in rat holes, and a Meghalayan policy

Photo: Shailendra Pandey

Tehelka Blog, Nov 12, 2012

It is said that Meghalaya has a history of no less the 80 years of unregulated and unscientific mining of natural resources, mostly coal and limestone. Due to customary tribal laws and lack of resistance, unregulated mining has turned into a cottage industry of sorts in the hilly state. In fact, though it remains quite unregulated, mining is Meghalaya’s biggest industry.

For instance, you will come across ‘rat hole mining’ in almost every nook and corner, where minors risk their lives to dig out coal. It was after activists rung the alarm bells on child rights abuse in these ‘rat holes’ that the Meghalaya government started to take the matter seriously. Moreover, the presence of large-scale limestone reserves in the state has made way for dozens of cement manufacturing plants, often set up in violation of environmental and forest guidelines. Meanwhile, the state government has drafted the Meghalaya Mineral Policy 2010 and plans to get it approved in the winter session of the State Legislative Assembly – the last time the Assembly would meet before the state goes to polls in early 2014.

The Mukul Sangma government has already started to hard sell the policy, which promises to bring scientific know-how to miners and private investment to the mining sector so that bigger projects can be envisaged, which would also enable infrastructure development. Sources say, since the Congress in Meghalaya is itself divided in opinion about introducing the policy, the government keeps it on hold. There is a desperate attempt to dress up the policy as a holy cow, but it is really going to be that sacrosanct?

All of Meghalaya falls under the Sixth Schedule areas, where, as per the Constitution, the tribals do not need any prior permission to start mining. So there is no need for environmental, forest or pollution clearances, and the industry is tax-free. Many of the tribals in governance and politics are also seen to be involved in unregulated mining. Though labour laws, child rights and safety norms are joke for Meghalaya’s mining industry, Constitutional safeguards for tribal areas in the form of the Sixth Schedule keep the Centre from poking its nose in the matter. Sources claim that all politicians have huge assets in unregulated mining, and the workers in the sector are either migrant poor from other states, or from Nepal and Bangladesh, or they are trafficked minors. So the state government tends to ignore even major mining accidents.
So the policy might have come about because of the pressure the state government came in from the Guwahati High Court on the issue. The HC had imposed a fine of Rs 50,000 on Meghalaya for not having a mining policy, and later another Rs 5 lakh for not regulating mining on tribal land.

Ahead of the election, no political party in Meghalaya would dare to speak against illegal and unregulated mining, and after the poll, everyone will forget the issue and the policy will bite the dust. It is time for the tribal chiefs of Meghalaya, who hold enormous powers, to rise beyond clannish thinking and raise their voice for a regulated mining regime that has respect for the environment, and for forest, labour and child rights.

Tags: Meghalaya, mining, Rat mines

Author: Ratnadip Choudhury Ratnadip Choudhury works as a Principal Correspondent with Tehelka. A young IT professional by training and a journalist by chance, Ratnadip hails from Tripura and has been reporting out of Northeast India for Eight years, as of 2012. He started his career with the Tripura Observer and went on to work with the Northeast Sun, The Northeast Today, News Live, Sahara Time and The Sunday Indian. He has also contributed to BBC, CNN, NatGeo TV, NDTV, CNN-IBN and TIMES NOW. Before joining Tehelka, Ratnadip worked with the national bureau of the television news channel NewsX. He specializes in conflict reporting and has a keen interest in India’s eastern neighbours. He is based in Guwahati.

Related articles

• Meghalaya to mine Odisha coal block, start power project (news.in.msn.com)
• A 11 Bangladeshi immigrants arrested in Meghalaya (indiavision.com)

How safe is Bangalore for North East Indians? Where is ‘rule of law’?

2:50 AM, 25th October 2012, Bangalore, Manohar  Elavarthi

I feel very tired and exhausted after spending 5 hours running around in the Bangalore City, waiting in front of Seshadripuram Police Station and interacting with the police personnel. I am writing this in the midnight as what I saw today is extremely disturbing and frustrating.

Tejaswini, activist handing the 24×7 NorthEast telephone helpline (http://northeastsolidarity.blogspot.in/2012/08/north-east-helpline-launched-in.html) on behalf of Peace and Solidarity Forum received a phone call at around 9:30 PM on 24th October 2012 from a person of Tripura origin living in Seshadripuram area. He told that North East Indians living in his building were facing constant physical assaults, extortion and threats using dangerous weapons for the past 2 months. Tejaswini, Bharati, Hanumath, Harish, Prakashraj (fellow activists from Praja Rajakiya Vedike http://www.facebook.com/prajarajakiya) and myself rushed from different locations of Bangalore and reached Seshadripuram around 10:15 PM.

We met 8 North East Indians (from Assam and Tripura) living in the same building, 4 people each living in a small room with very little ventilation. They are working as security guards/ sales persons in Mantri Mall/ Orion Mall/ nationalised banks/ other establishments in the nearby localities. These workers didn’t leave Bangalore City during the exodus of estimated 30000 North East Indians out of Bangalore City in August 2012. These people try to save as much as possible from their meagre salaries to be sent to the families back home in the North East. Their ordeal began after Ramzan in end-August.

4 goondas named Karan, Santosh, Manjunath and Ramesh, who live in the same locality started coming in the night, mostly in groups of 2/3 and harass, abuse, threaten and extort money from these North East workers. Multiple time they used sharp knives to threatened these workers and threatened to kill them if they don’t give them money. Multiple times many North East workers were physically assaulted. On the afternoon of 6th October 2012 (Karnataka Bundh on Cauvery issue) 2 of the goondas physically assaulted a worker and asked him to collect Rs. 500/- each from the workers’ from their monthly wages (generally received on 10th day of each month) and give it to the goondas if they want to be be safe. The goondas threatened to kill all the North East workers otherwise.

This seems to have led to most of the 100+ North East workers living in the building running away from there in the past 20 days. Some have shifted to other areas and others have left Bangalore City. Those who continue to live there faced increased brutality. Goondas physically attacked 2 North East workers on 23rd October 2012 night and extorted Rs. 2000/- from them. In the morning of 24th October 2012, the workers went to the Seshdripuram Police Station and complained about their ordeal. Police didn’t bother to take any action. Same day at 7:30 PM the goondas barged into a room, hit a North East worker and snatched his N-70 NOKIA mobile phone away. The workers started calling their people in Tripura and Assam. According to them one of their friend from Tripura got the NorthEast helpline telephone number from the Chief Minister of Tripura (?).

The North East workers told us that they have to give a large amount of their money to these goondas. They said that they are fed-up of giving their hard earned money to these goondas and having no money to celebrate the festival (most of them are Hindu and others are Muslim). By around 10:45 PM we went to the Seshadripuram Police Station. In spite of all our efforts the police personnel were not willing to register the complaint or take action in catching the goondas (the workers wanted to show the houses of goondas so that they can be caught by the police). The police showed no interest in doing their duty. We were told by the police personnel to come on 25th morning as the Police Inspector will come to the station at that time. After waiting (and standing as they made us wait outside the station, where there is no seating) for more than 2 hours in front of the police station, we decided to inform the media.

In spite of it being middle of the night, media personnel from many Kannada-news channels and 1/2 newspapers reached the station in less than 15 minutes time. After media starting to interact with the victims, police started doing their duty. Police started pressurising us to lodge the police complaint before talking to the media. With in 30 minutes time, the Police Inspector also arrived at the station. Police were able to detain 3 of the 4 accused in the Police Station within the next 30 minutes. I am not sure what would have happened without the media presence. Police suddenly started offering us chairs to sit inside the station. They promised security for the North East workers today night. They took the written complaint of the workers and promised to give the FIR copy tomorrow morning.

Even when the police were doing their work after the media intervention, the driver of police Zeep threatened 2 of our activists who accompanied the North East workers in the Zeep to identify the houses of the goondas. He told that there will be no safety for North East workers if we lodge a complaint against the goondas. He told that the goondas have a lot of support in the area and that 50000 strong crowd from the area will hit the North East workers and our activists tomorrow. He told the activists not to register a complaint against the goondas.

Why are the police not-responsive to us? Why is police driver seems to be on the side of goondas? Why are police seem to be soft on these goondas? Do police benefit by being soft on goondas? If this is the police response when a large section of activists come to police station, what will be the police response for the complaints of ordinary citizens and particularly those from disadvantaged sections of society?

Will these North East Indians get justice? Will they be chased away from the area soon. We also heard that one of the goonda (Karan) has multiple police cases against him already. Are we putting the North East Indians in danger by asking them to take action against gross injustice?

This is not the first time, there are many instances of police neglect in the past as well, some of them are

– police took more than 2 hours in the night to visit the house of a North East Indian in Koramangala area who was threatened

– police took more than 2 hours in the night, when a house of North East students were attacked in Banaswadi area with stones, after reaching the place the drunk policeman demanded money from the students

– police didn’t book a case against a senior police officer and his son for brutally assaulting 4 North-East students in the National Games Village recently. Police seems to have fed the false story in the media that the students were drunk and were dancing to the loud music in their flat when the incident took place. Forget loud music, the flat itself was locked at that time. The 4 students were waiting downstairs after coming to visit their friend (who stays in a flat in that apartment complex) as their friend was away. This happens in a place where 2 senior-most officers of North East origin – Mr. Lalrokhuma Pachao (present Director General of Police, Karanatka) and Mr. HT Sangliana (ex-Bangalore City Police Commissioner and ex-Member of Parliament elected to Loksabha from Bangalore City) live in the same area.

It looks like there is no ‘rule of law’. Police are supposed to enforce the ‘rule of law’. Where do ordinary people who have no activist or media connections go? Is there some home? Is there some way?

I will end here, for now.

CONTACT MANOHAR AT – manoharban@gmail.com

Related articles

• North-east- Urgent Appeal (kractivist.wordpress.com)
• Peace in Nagaland? (thohepou.wordpress.com)

India should accept UN recommendation to repeal AFSPA: Human Rights Watch

NEW YORK: A leading human rights group today asked India to repeal the Armed Forces Special Powers Act, impose a moratorium on the death penalty and accept other recommendations of UN member states to address the country’s “most serious human rights problems”.It also asked Indian government to respond to concerns that the Foreign Contribution Regulation Act can be abused to restrict civil society organisations from promoting human rights by limiting their access to foreign.

The UN member states at the Universal Periodic Review (UPR) in May this year had made wide-ranging recommendations calling upon India to ratify multinational treaties against torture and enforced disappearances, repeal AFSPA, introduce an anti-discrimination law and protect the rights of women, children, dalits, tribal groups, religious minorities, and other groups at risk.

Human Rights Watch (HRW) said the Indian government has promised a “comprehensive response” to the UPR’s 169 recommendations and will submit its responses during the current session of the UN Human Rights Council.

It said there are expectations that the Indian government will make serious efforts and not mere “lame” assertions to address its human rights problems.

“The Indian government should make a serious effort to carry out these recommendations instead of simply pointing to existing legislation or policies,” South Asia director at Human Rights Watch Meenakshi Ganguly said.

“What is needed is a strong commitment to transparency and accountability to protect human rights, not more lame assertions of good intentions,” she said.

“India should accept the recommendations by United Nations member states at the UPR to address the country’s most serious human rights problems,” the group said in a statement.

During its 2012 review, the Indian government set out the fundamental rights provided by the constitution, judicial pronouncements, the Right to Information Act, the Right to Education Act of 2009 and the NationalFood Security Bill to demonstrate the government’s commitment to protect human rights.

The government however “downplayed” abuses by security forces and the role of AFSPA in facilitating these abuses, HRW claimed.

The government asserted that most complaints of army and paramilitary abuses were found to be false, and said the Act had been upheld by the Supreme Court.

“But the government failed to note that it has ignored measures to prevent abuses outlined in the Supreme Court ruling,” the rights group said.

The UPR is the mechanism to examine the human rights records of all 192 UN member states and provides an opportunity for each state, every four years, to explain what actions it has taken to improve respect for human rights in its own country.

Related articles

• Ram Narayan Kumar- A born Human Rights Activist (kractivist.wordpress.com)
• India continues to #Torture #Kashmir (kashmirsolidaritymumbai.wordpress.com)

Urgent Appeal to Media and Press in the North east

This is an urgent appeal on behalf of the north east community living in Bangalore and other cities outside of the north east. As you are aware the situation in many cities has been tense fuelled by rumours of potential violence as well as stray incidents, which have resulted in many people leaving these states and returning to their respective homes in Assam and elsewhere.

As the trains start arriving in Assam and elsewhere there will be an urge to interview people to get a sense of what has been happening and we fear that some of thee stories may be based not on facts but on hearsay and rumour. We urge the media to exercise refrain in the way they carry the stories. The reality of the situation in Bangalore for instance is that community leaders and representatives from the north east and the Muslim community have been hard at work to build trust between these communities and restore peace here. If there any backlash that takes place in Assam as a result of the stories that are carried there is a danger of there being repercussions in cities like Bangalore.

We urge the media to be aware of the important role that they have in trying to bring back trust within all the communities and report without sensationalizing anything which could be used by troublemakers. The media in the north east has played a very vital role in promoting democratic values and ensuring the safety and security of people and we hope that at this critical hour all of you will join hands in promoting a more peaceful and stable future.

Friends and members of the north east community in Bangalore

Muslim Leaders-If you feel unsafe, come to our homes, mosques’ #Northeast

 

August 17, 2012 00:16 IST, Rediff.com

Leaders from the Muslim community reassure students from the North-East about their safety in Bangalore. Vicky Nanjappa reports.

As panic stricken people from the North-East continue to leave Bangalore, leaders of the Muslim community met with students’ representatives and assured them that there was nothing to worry.

Akbar Ali, convenor of the Muslim welfare association said that those who feel unsafe in their homes are welcome to come to our homes and mosques to take shelter. Ali also told the students that there was no need to worry.

“We will protect you, but please do not leave the city. It is your city as much as ours,” reassured Ali.

The state administration on the other hand is doing all it can to assure the panic-stricken people that they were safe in the city.

Law Minister, Suresh Kumar, when contacted informed that he met with most of the people at the railway station and assured them of their safety. Most of the people want to go home to stay with their parents as there is trouble there.

However, most of those who were leaving the city said that there have been incidents that prompted them to leave the city.

An employee at a firm told rediff.com that her friend had been threatened. She said that her friend was told not to go to office failing which she would be attacked.

The police say that they are monitoring messages and social networking sites to see who was creating this panic.

Though the level of panic has come down as compared to Wednesday, people continue to leave the city. As per the messages being circulated, people from the North-East say that the attacks could go up after the 20th of this month and they do not want to be here at that time.

The Bangalore police meanwhile have sent out a message stating that no incidents have been reported on any attack on citizens from the North-East in Bangalore. “Do not panic or heed to rumours. In case you need help please call the control room,” the message stated.

Vicky Nanjappa in Bangalore

Related articles

• Indians from Assam flee ‘Muslim threats’ in Bangalore (guardian.co.uk)
• Don’t flee, Muslim leaders say (thehindu.com)
• PM reassures NE people as 11,000 flee Bangalore (ibnlive.in.com)

 

Stand up for people from the North-East India #mustshare

 

The campaign logo itself invites and let you get into the shoe of a little brown fish, discriminated and humiliated just because she was born with a different look and color from the rest. This is the same treatment the people who originate from North East India receive. It is time we unite and stand for our rights!

THE BIRTH OF A MOVEMENT:

Today the people of North-East (NE) India face several issues of racial discrimination, harassment and violence outside their home states as a result of lack of awareness among the citizens of India about the region of NE and its culture. Each day we suffer and each day we wonder why we are made to feel as “foreigners” in our own nation. Is this what we would like to call “home sweet home”?

Within the states of North-East India, short-sighted government policies such as ‘The Armed Forces Special Powers Act’, the lack of control of illegal migration from Bangladesh and general governmental neglect has resulted in increased alienation of the people from the democratic processes. What could be blamed – xenophobia, racism or simply, lack of awareness?

INCEPTION:

SDPFNEI (Stop Discriminating People from North-East India) started as an online discussion group (www.facebook.com/sdpftnei) to address issues of discrimination faced by North-East Indians. We believe, although the circumstances are harsh but a sense of perpetuated victimization can only be counter-productive.

Recognizing online social networking platforms such as Facebook to be a feasible, easily accessible and vital platform to create general awareness and dispel the visage of racial stereotype(s). While addressing key issues/complaints faced by the people by highlighting them and followed by public debates, we realize the need to generate active interest in the NE region.

The members realized that the awareness of the land of the Seven Sisters has remained almost non-existent among the Indian citizens even after 60 years of the nation’s independence. The achievement and sacrifices of the people from this region in nation building (Defence, Technology, Sports and Administrative Services etc) has been largely ignored by the nation’s media, its educational systems and the political leadership. The group has resolved to proactively address these issues via constructive engagement with the government, national institutions and the conscious citizens of India.

KEY ISSUES:

A) We face harassment and discrimination almost every day. Our women are subject to frequently sexual assaults. Some of our fellow citizens continue to verbally abuse and stereotype us by calling us “Chinky”, “Nepali”, “Bahadur”, “Chinese” and various other slurs have become a daily occurrence. Many Indians are hypersensitive to any perceived (real or imaginary) racial slur they may receive outside India. However within India, the same people remain largely oblivious to the far more frequent and intense racial insults, harassment and violence heaped on India’s citizens from north-east India.

B) The continued sexual assaults and heinous crimes against the women of the North East India increases at an alarming rate. Metropolitan Indian cities have a tendency to be notorious regarding women’s safety in general but the recent spike in such untoward incidents indicate that sexual predators find the “different” looking (Mongoloid facial features) women as an ‘easier prey’.

C) The fruits of modern infrastructure & economic development have largely bypassed the NE region. Leaders in New Delhi should handle the issues pertaining to the region with more sensitivity and maturity. Rather than compounding the problem by their myopic view of the region via a security lens only.

D) Six decades after the nations independence, many of its citizens are still forced to conduct their daily life with guns pointed at them by their own Government. The indigenous inhabitants of the North East are still forced to live with the draconian Armed Forces special Powers Act (Arunachal Pradesh, Assam, Manipur, Nagaland and Tripura) along with Jammu and Kashmir) which is a misguided mechanism that has done more harm than good. Decades of ASFPA has only helped propagate a culture of violence and hate. Fundamental rights of the people need to be recognized. India as the largest democratic country cannot overlook the loopholes in the myopic vision by the central leaders of the past.

E) The mainstream media only covers news about violence and insurgency in the North East region instead of covering thousands of other stories that more truly reflect its rich vibrant culture, history and unique landscape. It’s a shame that for many decades India’s government, politicians, and rest of the country still continue to ignore the NE states. It has mostly been a case of out-of-sight and out-of-mind as far as the mainstream media is concerned.

F) The North East region is a beautiful place with rich eco-geographical landscapes, physical and human resources. We are a friendly people blessed with multi-faceted talents that range from music, education, fashion, sports etc. Visitors would find the people friendly with rich cultural heritage. The fabled head hunting warriors or barbaric tribesmen are but a myth.

WE ARE NOT ANTI-INDIA:

1. We believe that raising awareness is the key to identifying and perusing the solutions to the above issues. Hiding the issues “under the carpet” makes matters only worse.

2. This forum is not anti-India. Though we focus on issues relating to North-East Indians, we believe that addressing issues of discriminations faced by any group or community in India is actually a patriotic act that truly contributes to nation-building.

3. A nation becomes strong when all its communities in various forms are truly made to feel as equal citizens of the nation.

Many years ago Rabindranath Tagore wrote a Nobel prize winning poem that began and ended thus:

“Where the mind is without fear and the head is held high
Where knowledge is free;
Where the world has not been broken up into fragments by narrow domestic walls;
——————————————————
Into that heaven of freedom, my Father, let my country awake.”

SDPFNEI strives to achieve the above ideals which as yet have remained unrealized many years since the nation’s birth. The views expressed by the members of the forum are solely their own and are not endorsed by the Stop Discrimination of People from North-East India.

Can you sign the petition to help add more pressure on the Government? 

We need all the responsible citizens like you to join the movement to end racial discrimination in this generation.More signatures will add strength to the opposition to this campaign.

Please do include your full name, email and your current city while signing up.

GET INVOLVED, SIGN THE PETITION: We have launched the Signature Campaign on April 23 in New Delhi. Now the signature campaign will go on till nov 13, 2011 nationwide and we expect to achieve upto 3 Lacs of signatures. This is the only way we can make the government listen to our cries.

To read and sign the petition, please visit

http://www.ipetitions.com/petition/neindia/

join us on facebook

https://www.facebook.com/SDPFTNEI

 

Let’s stop pretending there’s ” NO RACISM ” in India

YENGKHOM JILANGAMBA, The Hindu

INSENSITIVE MAINLAND: Students from the north-east protesting instances of discrimination. Photo: V.V. Krishnan

Most Indians think racism exists only in the West and see themselves as victims. It’s time they examined their own attitudes towards people from the country’s North-East

The mysterious death of Loitam Richard in Bangalore, the murder of Ramchanphy Hongray in New Delhi, the suicide by Dana Sangma and other such incidents serve as reminders of the insecure conditions under which people, particularly the young, from the north-east of India have to live with in the metros of this country. What these deaths have in common is that the three individuals were all from a certain part of the country, had a “particular” physical appearance, and were seen as outsiders in the places they died. These incidents have been read as a symptom of the pervasive racial discrimination that people from the region face in metropolitan India.

An institutionalised form

Quite expectedly, such an assertion about the existence of racism in India will not be taken seriously; the response will be to either remain silent and refuse to acknowledge this form of racism or, fiercely, to reject it. Ironically, most Indians see racism as a phenomenon that exists in other countries, particularly in the West, and without fail, see themselves as victims. They do not see themselves harbouring (potentially) racist attitudes and behaviour towards others whom they see as inferior.

But time and again, various groups of people, particularly from the north-east have experienced forms of racial discrimination and highlighted the practice of racism in India. In fact, institutionalised racism has been as much on the rise as cases of everyday racism in society.

In a case of racial profiling, the University of Hyderabad chose to launch its 2011 “initiative” to curb drinking and drug use on campus by working with students from the north-east. In 2007, the Delhi Police decided to solve the problems of security faced by the north-easterners in Delhi, particularly women, by coming up with a booklet entitled Security Tips for North East Students asking north-eastern women not to wear “revealing dresses” and gave kitchen tips on preparing bamboo shoot, akhuni, and “other smelly dishes” without “creating ruckus in neighbourhood.”

BRICS summit

Very recently, in the run-up to the BRICS summit in New Delhi, the Delhi Police’s motto of “citizens first” was on full display, when they arrested or put under preventive detention the non-citizens — the Tibetan refugees. But the real problem for the security personnel cropped up when they had to identity Tibetans on the streets of Delhi. This problem for the state forces was compounded by the fact that Delhi now has a substantial migrant population from the north-east whose physical features could be quite similar to those of Tibetans. So, the forces went about raiding random places in Delhi, questioning and detaining people from the region. North-eastern individuals travelling in vehicles, public transport, others at their workplaces, and so on all became suspects.

Many were asked to produce their passports or other documents to prove that, indeed, they were Indian citizens and not refugee Tibetans. In some cases, “authentic” Indians had to intervene in order to endorse and become guarantors of the authenticity of the nationality of these north-easterners. The situation became farcical and caught the attention of the judiciary reportedly after two lawyers from the region were interrogated and harassed. The Delhi High Court directed the Delhi police not to harass people from the north-east and Ladakh. How much easier it would have been for the Delhi Police, if only citizenship and physiognomy matched perfectly.

But should one expect otherwise from these state and public institutions, given the fact that racism is rampant at the level of societal everyday experiences? For north-easterners who look in a particular manner, everyday living in Indian cities can be a gruelling experience. Be it the mundane overcharging of fares by autoricksaw-wallahs, shopkeepers and landlords, the verbal abuse on the streets and the snide remarks of colleagues, friends, teachers, or the more extreme experiences of physical and sexual assaults. It is often a never-ending nightmare, a chronicle of repetitive experience.

One also wonders if racial attitudes, if not outright racism, influence many more aspects of life than one imagines. For instance, whether there is any racial profiling of employment opportunities, given the concentration of jobs for north-easterners mostly in the hospitality sector, young women in beauty salons, restaurants and as shop assistants.

Visible and unseen

Of course, racism is difficult to prove — whether in the death of Richard or in the case of harassment of a woman from the north-east. And it should not surprise us if racism cannot be clearly established in either of these cases because that’s how racism works — both the visible, explicit manifestations as well as the insidious, unseen machinations. Quite often, one can’t even recount exactly what was wrong about the way in which a co-passenger behaved, difficult to articulate a sneer, a tone of voice that threatened or taunted, the cultural connotations that can infuriate.

How does one prove that when an autorickshaw driver asks a north-easterner on the streets of Delhi if he or she is going to Majnu ka Tila, a Tibetan refugee colony, that the former is reproducing a common practice of racial profiling? This remark could be doubly interpreted if made to a woman from the region — both racial and gendered. How do I prove racism when a young co-passenger on the Delhi Metro plays “Chinese” sounding music on his mobile, telling his friend that he is providing, “background music,” sneering and laughing in my direction? And what one cannot retell in the language of evidence, becomes difficult to prove. Racism is most often felt, perceived, like an invisible wound, difficult to articulate or recall in the language of the law or evidence. In that sense, everyday forms of racism are more experiential rather than an objectively identifiable situation.

Of course, every once in a while, there will be an incident of extreme, outrageous violence that is transparently racial in nature and we will rally around and voice our anger but it is these insidious, everyday forms of racial discrimination that bruise the body and the mind, build up anger and frustration. Fighting these everyday humiliations exhausts our attempts at expression.

If one is serious about fighting racial discrimination, this is where rules must change — by proving to us that in Richard’s death there was no element of racism. Given the pervasiveness of racism in everyday life, why should we listen when we are told that those who fought with him over a TV remote were immune to it?

To recognise that racism exists in this country and that many unintended actions might emanate from racism can be a good place to start fighting the problem. To be oblivious of these issues or to deny its existence is to be complicit in the discriminatory regime. Also, the reason for fighting against racism is not because it is practised against “our” own citizens but because it is wrong regardless of whether the victims of racism are citizens of the country or not. One way to be critical of racism is to recognise and make visible the presence of racism rather than merely resorting to legalistic means to curb this discrimination.

(Yengkhom Jilangamba is a Visiting Associate Fellow at the Centre for the Study of Developing Societies, Delhi.)

Related articles

• Indian Govt to ensure security of NE students: Chidambaram (kractivist.wordpress.com)