India: Death threats to human rights defender Dr. Lenin Raghuvanshi

http://www.pvchr.net/2011/11/india-death-threats-to-human-rights.html

Lopsided growth

http://www.pvchr.net/2011/11/lopsided-growth.html

Submission by PVCHR regarding India for the Universal Periodic Review:State of Impunity

http://www.pvchr.net/2011/11/submission-by-pvchr-regarding-india-for.html

मानवाधिकार कार्यकर्ता-अधिकार दिवस पर आयोजित अधिवेशन एवम अंतर्राष्ट्रीय मानवाधिकार दिवस पर आयोजित रैली मे भागीदारी के समबन्ध मे

http://www.pvchr.net/2011/11/blog-post_26.html

महोदय / महोदया,
अभिनन्दन !!!

मानवाधिकार कार्यकर्ताओ की ह्त्या और उन पर बढते हमले के परिप्रेक्ष्य मे मानवाधिकार जन निगरानी समिति द्दारा 9 दिसम्बर 2011 को अंतर्राष्ट्रीय मानवाधिकार कार्यकर्ता – अधिकार दिवस पर एक दिवसीय अधिवेशन का आयोजन पराडकर स्मृति भवन , मैदागिन, वाराणसी मे आयोजित किया जा रहा है। अधिवेशन के मुख्य अतिथि माननीय श्री चितरंजन सिंह – राष्ट्रीय सचिव, पी.यु.सी.एल. एवम विशिष्ट अतिथि – माननीय श्री नागेश्वर पटनायक (इकोनामिक टाईम्स) है । कार्यक्रम प्रात: 11 बजे से प्रारम्भ होगा ।

10 दिसम्बर 2011 को अंतर्राष्ट्रीय मानवाधिकार दिवस पर यातना और संगठित हिंसा के खिलाफ मानवाधिकार कार्यकर्ताओ एवम पीडितो द्दारा रैली आयोजित की गयी है ।

महोदय / महोदया उपरोक्त कार्यक्रम मे आपकी व्यक्तिगत / संस्थागत उपस्थिति आवश्यक एवम वन्दनीय है ।


आपका

डा0 लेनिन

(महासचिव)

Firing probe in Assam rights panel court

http://www.telegraphindia.com/1111122/jsp/northeast/story_14782210.jsp

A STAFF REPORTER
Guwahati, Nov. 21: The National Human Rights Commission (NHRC) has forwarded a complaint pertaining to the death of four farmers in police firing at Besimari in Darrang district, to the Assam Human Rights Commission (AHRC) for early disposal.

Four farmers lost their lives while around 20 others, including policemen, were injured when security forces opened fire on agitating jute cultivators on October 10.

The agitating farmers blocked National Highway 52 demanding government intervention in regulating jute prices.

An official source said the complaint which was filed at the NHRC by the convener of People’s Vigilance Committee on Human Rights, Lenin Raghuvanshi, last month, had been recently transferred to the Assam Human Rights Commission for appropriate action.

“The grievances raised in the petition relate to matters which are subject to the State and hence the complaint was transferred to state human rights commission under Section 13 (6) of the Protection of Human Rights Act, 1993, as amended by the Protection of Human Rights (Amendment) Act, 2006 for disposal in accordance with the provisions of the act,” the source said.

The people’s vigilance committee is a Varanasi-based NGO, which is working for the protection of human rights of marginalised people.

Speaking to The Telegraph over phone from New Delhi, Raghuvanshi said they had sought an inquiry by an independent agency into the circumstances in which the police opened fire on the agitating farmers.

They also demanded that the victims of police action be compensated adequately as prima facie their rights have been violated.

In the petition, the NGO had accused the authorities of a “high-handed attitude” towards the farmers.

“According to NHRC guidelines, if death is caused by police firing, then there is a provision for filing an FIR against policemen,” Raghuvanshi said.

Soon after the incident, the Krishak Mukti Sangram Samiti (KMSS), a peasants’ body, had termed the killing of four farmers in police firing “cold-blooded murder”.

RTI activist and KMSS general secretary Akhil Gogoi had stated that the police firing on unarmed farmers was a reflection of the anti-peasant stand of the Tarun Gogoi government.

According to the source, the Assam Human Rights Commission (AHRC) has registered the complaint and would seek a reply from Assam police.

“Since former Chief Justice of Jammu and Kashmir High Court, Aftab Hussain Saikia, who is appointed the AHRC chairman is yet to assume office, the notice has not been issued to the police yet. As soon as he assumes charge, the notice seeking reply from Assam police will be issued,” the source said.

मानवाधिकार जननिगरानी समिति द्वारा जौनपुर विकासखण्ड रामपुर, ग्राम-सकरा में विकास कार्यो एवं मुसहर परिवारों की चुनौतिपूर्ण स्थितियों की रपट

मानवाधिकार जननिगरानी समिति के गर्वनिंग बोर्ड सदस्य श्री मंगला राजभर, मैनेजमेंट कमेटी सदस्या सुश्री शिरिन शबाना खान एवं सुश्री कात्यायनी ने पत्रकार भवन कचहरी परिसर जौनपुर में संस्था द्वारा आयोजित प्रेसवार्ता में विकास खण्ड-रामपुर, ग्राम-सकरा में मुसहर परिवारों के बीच संस्था द्वारा किये जा रहे विकास कार्यो मुसहर परिवारों की चुनौतिपूर्ण स्थितियों की रिपोर्ट रखी।

उन्होंने बताया कि-समिति द्वारा मुसहर परिवारों को सरकारी योजनाओं और कानूनों की जानकारी सामुदायिक बैठकों/लोक विद्यालय के माध्यम से दी जाती है। जिससे सरकार द्वारा चलायी जा रही विभिन्न विकास कार्यक्रमों योजनाओं को लेकर अपना जीवन स्तर ऊँचा उठा सकें, उनकी गरीबी दूर हो। इसी दौरान (वर्ष 2009) मुसहर परिवारों ने बताया कि ग्राम के दबंग व्यक्तियों के साथ ही ग्राम प्रधान द्वारा बार-बार यह दबाव बनाया जा रहा है कि वे मनरेगा में बिना काम किये ही अपनी मजदूरी बैंक से निकालकर उन्हें दे देवे। विदित हो कि इन मजदूर मुसहर परिवारों में से कुछ परिवारों का जाॅब कार्ड ग्राम प्रधान द्वारा बनवाकर अपने पास ही रखा था। जिस पर वे मनमानी तरीके से काम के दिनों, मजदूरी की इंट्री कर नाजायज तरीके से (बिना काम के ही) भुगतान कराना चाहते थे। मजदूरों ने कानून के डर से बिना लालच में आये इसकी लिखित शिकायत जिलाधिकारी से की, जिसके बाद ग्रामप्रधान का खाता सीज हो गया। शिकायत के बाद ही उन्हें पहली बार उनका जाॅब कार्ड उनके हाथ में मिला।

वर्ष 2010 में सकरा के ही श्री ओम प्रकाश सिंह के रिश्तेदार (साले) दिल्लकपुरा, थाना-केराकत निवासी श्री इन्द्रमणि सिंह ने 15 मुसहरों को परिवार सहित ईंट भट्ठे पर बंधुवा बनाकर ईटों की पथाई करायी और सीजन खतम होने पर पूरी मजदूरी दिये बिना ही उन्हें मार-पीटकर भगा दिया। (मजदूर दिलकुमार की स्व0 व्यथा-कथा संलग्न है) जिसकी शिकायत जिलाधिकारी सहित राष्ट्रीय मानवाधिकार आयोग, नई दिल्ली से की गई। आयोग द्वारा मामले पर जाँच कर जिला प्रशासन से रिपोर्ट मांगी गई है।

देश में बंधुवा मजदूरी उन्मूलन के लिए बंधुवा मजदूरी अधिनियम 1976 के अन्तर्गत प्रत्येक बंधुवा मजदूर को मुक्त कराकर उन्हें पुर्नवासित किये जाने का प्रावधान हैं, जिसकी जवाबदेही प्रशासन की हैं।

वर्ष 2010 अक्टूबर में मुसहर परिवारों की अमानवीय अवस्था को देखते हुए समिति द्वारा यहाँ कार्यक्रम की गतिविधियां तेज की गयी, जिसके अन्तर्गत यहाँ सर्वप्रथम शिक्षा से वंचित बच्चों को अनौपचारिक शिक्षा देने का काम शुरू किया गया। इस कार्य में बालाधिकारों पर कार्यरत अन्र्तराष्ट्रीय संस्था ‘‘ग्लोबल फण्ड फाॅर चिल्ड्रेन ;ळथ्ब्द्ध’’ ने आर्थिक सहायता की। जिससे बच्चों को प्रशिक्षित शिक्षकों द्वारा शिक्षा शिक्षण सामग्री दिये जाने की शुरूआत हुई। यहाँ पोषण के लिए खाद्य सामग्री भी दी जाती है।

वर्तमान में संस्था द्वारा मुसहर परिवारों के सहयोग से सावित्री बाई फूले जनमित्र शिक्षण केन्द्र (अनौपचारिक) की स्थापना की गई। जिसमें 6-14 वर्ष के 22 बच्चें शिक्षा ग्रहण कर रहे है, और 25 बच्चें पूर्व प्राथमिक स्तर के शिक्षा कार्यक्रम से जुड़े है। साथ ही 6 बच्चों को ग्राम के सरकारी प्राथमिक विद्यालय में (मुख्यधारा) नामांकित कराया गया है। जिससे वे सरकारी सुविधाओं सहित शिक्षा ग्रहण कर सकें। ऐसे में 0-5 वर्ष के 52 बच्चों में पोषण एवं विकास के लिए प्ब्क्ै विभाग द्वारा कोई प्रयास नही चलाया जा रहा है।

‘‘शिक्षा कार्यक्रम से जुड़ने पर मुसहर परिवारों का अपने बच्चों का शिक्षा एवं विकास का दृष्टिकोण बदलना शुरू हो गया है। उनके आँखों में भी पढ़-लिखकर जानकारी हासिल करने के सपने साफ दिखाई देने लगे हंै। जिससे ग्राम के वे तबके जो आजाद भारत में भी इंसानों को गुलाम बनाकर रखना चाहते है वे विचलित हो उठे हैं और मुसहरों को परेशान करने की मंशा से फर्जी आरोप और मुकदमों में फँसाने का असफल प्रयास भी कर रहे हैं।’’

मुसहर परिवारों की स्थिति का अंदाजा इसी से लगाया जा सकता है कि आज भी 22 वयस्कों (महिला-पुरूष) के पास मतदाता नही है। जो गाँव-देश का नागरिक होना सुनिश्चित कराता है। जिसके बाद भी वे किसी योजना के हकदार होते है। किसी राजनितिक या जनप्रतिनिधि को उनके वोट की जरूरत नही है। मुसहरों को राज्य व्यवस्था, अपने जनप्रतिनिधियों के चुनाव की समझ शायद नही होती है। ऐसा उनका सोचना होगा, तभी तो शायद किसी ने यह प्रयास नही किया। पिछले कुछ समय पहले सरकार द्वारा अभियान चलाकर ठस्व् (लेखपाल, शिक्षक) द्वारा मतदाता पहचान पत्र दुरूस्तीकरण किया जा रहा था, लेकिन तब भी इस बस्ती में कोई सरकारी कर्मचारी इस बाबत नही पहुचा।

आजीविका और सामुहिक सम्पदा संसाधनों से बदहाल स्थिति होने के बावजूद भी 15 मुसहरों के पास अभी भी जाॅब कार्ड नही है। जबकि काम न मिल पाने के कारण ये ईंट भटठों में पेशगी के ऐवज में बंधुवा मजदूर बनने को मजबूर होते है। जिनके कार्ड जाॅब कार्ड है भी उन्हें भी मनरेगा में काम नही मिलता। प्रधान और रोजगार सेवक के लिए शासनादेश का कोई मायने नही है। वे मिलीभगत कर मनरेगा के धन का दुरूपयोग करने में ही व्यस्त है। जिसका सीधा उदाहरण है कि, आज भी जाॅब कार्ड युक्त/संतृप्त व्यक्तियों में से कुछ के बैंक खाते नही खोले गये है। वही जिनके खाते खोले गये है, उन्ही बैंक खातों में उन मजदूरों का भी भुगतान कराया जाता जिनके खाते नही खोले गये है, यह सरासर मनरेगा कानून के उल्लंघन का मामला है। काम की मांग और हनन के मामलों पर इनके द्वारा कई बार शिकायत की गयी है। लगभग दो माह पूर्व तथाकथित सोशल आडिट में ब्लाॅक कोआर्डिनेटर की मौजूदगी में कानून निर्देशित नियमों के व्यवहारिक उपयोग एवं सत्यता की जाँच में भी मजदूरों ने अपनी समस्या को रखा, लेकिन कोई सुनवाई नही की गई।

2002 के सर्वे के अनुसार 48 मुसहर परिवारों में केवल दो परिवारों के पास ही बी0पी0एल0 राशन कार्ड है जिसमें भी राशन समय से नही मिलता। सर्वोच्च न्यायालय के आदेश (मु0सं0-196 भारत सरकार बनाम च्न्ब्स्) के बाद भी अति वंचित मुसहर समुदाय के 44 परिवार राशन कार्ड से वंचित है। जिससे वे परिवार खुले बाजार में मंहगे दाम में राशन खरीदकर खाने को मजबूर है। जिसका सीधा प्रभाव उनके पेट-स्वास्थ्य पर पड़ता है। क्योकि कई बार कुछ खाने का अनाज न होने के कारण उनके चुल्हे में आग नही जलायी जा पाती।
महामाय गरीब आर्थिक मदद योजना के सर्वे में भी केवल 5 परिवारों को ही सूची में शामिल कर मदद पहुचायी जा रही है।
33 परिवारों के पास कोई भी जमीन सिवाय उस जमीन के जिस पर उनकी झोपड़ी नही है। जिसके कारण वे छोटी मोटी खेती से अनाज या सब्जी पैदा नही कर पाते। 16 परिवारों को जमीन आवंटन है, लेकिन वे जमीन पानी के अभाव में बंजर पड़ी है जबकि मनरेगा कानून के अन्र्तगत इस जमीन को उपजाऊ बनाने का कार्य कर इनकी आजीविका व जीवन स्तर में वृद्धि की जा सकती है।

प्रेसवार्ता में सकरा ग्राम से महातीम मुसहर, डब्बल दिलकुमार, सोमारू सहित, सावित्री बाई फूले जनमित्र शिक्षण केन्द्र के शिक्षक प्रमोद कुमार रत्नाकर एवं कंचन भारती आदि उपस्थित रहे।

Jaunpur Paper Cutting

TORTURE, TESTIMONIES OF SURVIVORS AND RIGHT TO HEALTH

http://www.pvchr.net/2011/11/torture-testimonies-of-survivors-and.html

 

TORTURE, TESTIMONIES OF SURVIVORS AND RIGHT TO HEALTH

"My name is Harinath Mushahar and I am 50 years old.  Apart from working in the field as a landless labourer, I make leaf plates and sell it for making a living.

On February 1988, two days after Basant Panchmi, we all family members were sleeping under one roof. Suddenly, at 4 a.m, there was a knock at the door. My wife opened the door then, she saw the police. Two policemen barged inside and pounced on me, grabbing my arms wanted to take me to the police station.  When they pulled me outside, then I saw Ramdev Yadav, Rambali, Vikram Pehlwan, Kanhaiya, Dr. Bhaiyalal telling the police, 'Arrest Lalman'. Seeing them Lalman was trying to flee. Lalman and I, both of us were taken to Phulpur police station. 

Police continued thrashing me for 8 days and pressurised me to fall on their line and accept that we have committed the theft.  Four policemen were moving over my body and pounding with wooden stick as it seemed they were walking on the field but not over a human being.  While narrating the police's savagery tears jerks out of my eyes. There was no one to advocate for us. Whenever any high official visited the police station, police used to hide us.   Police used to give us one meal a day, it's was quite difficult to take food, I used to writhe terribly in pain but then also neither they applied any ointment nor they gave any oral medicine for healing the wounds. The pain was unbearable.  

Facing continuous torture for 8 days in the lock up, I was sent to the jail. I was treated in the jail. It always crossed over my mind, what fate had befallen on me and suffering for whose sin, then I questioned myself is it not that I am facing it for being born a 'Mushahar'. Waiting for my bail after two and half months I was released. After that, I had to appear on the hearing of my case. 

My incarceration in jail pushed my family to languish in penury and my son died deprived of a proper treatment. Medicines vanish from the Government hospitals so my son also left this world without medicine. If he would have been alive then he would lend his helping hand in my hour of distress. 

On 16th April 2002, the Court awarded imprisonment, which distanced me from my family members. On that day I and my brother, Lalman reached the Court in the morning. Our name was called after the Judge occupied his seat. My advocate asked us to stand at the dock. Then, he whispered something on Judge's ear. At around 2 p.m. the Court broke for the lunch and the Judge went away. Filled with fear, I went to the Judge then he told me, "Go I am coming. I trusted him and I came back to my seat. Post to the lunch the Judge came. Staring at the door I was thinking would the advocate coming or not. I was getting frightened. Court's reader made an announcement in the post-lunch session. Then the Judge gave the ruling, "Sentenced for 10 years of imprisonment and booked under 382 and 459 IPC. Deposit a penalty of Rs. 17,000 to the Court."

It was shocking for me, my face grew red, and I started sweating.   They did not know that I had been jailed. They were thinking that I might have gone to my sister's house.  ..... When they went to the advocate to ask him he just bluffed and told that we had asked to be forgiven so we were sentenced for 10 years of imprisonment. When it was narrated to me it hurt me terribly and started crying.

Some days after staying at Chokaghat District jail I was shifted to Central jail. ...... I was assigned the job of cleaning the barrack and filling up water where the Pakistani prisoners were kept. 

After two and half years, at Central jail's Shivpur farm, 6 jail inmates were allocated the work of cultivating 6 acres. Each prisoner had to do ploughing and weeding of an acre....   After putting up a hard toil covering whole of the day we were given Rs. 10 as a daily wage. On Sundays, we had to work but we were not paid single paise. When I asked twice why we were not paid wages for the work done on Sundays, then they responded Sundays are holidays so we do not pay. I used to think, are there holidays in jail but I could not ask them out of fear. We used to toil hard for 30 days in the month but 15 days were entered in the register and 15 percent from our wages went as commission to the contractor. 

At that time, I used to think 'what a fate had befallen on me!' Many a times I cried and mocked on my pathetic conditions. In the jail, I earned through sweat and blood of my hard toil but that's also being snatched away by others. I was put behind the bars on trumped up charges without committing any crime.

I was afflicted by tuberculosis (TB) due to insufficient food and hard toil. Continuously I had to take medicines for 6 months to cure my TB. I was served milk and eggs but couldn't consume it as health conditions were quite precarious.... Whenever there were rains, I used to think if the thatched roof leaks then where would all family members sleep. Days passed by while working but my nights were sleepless as worries and anxieties filled up my restless mind.

It was quite a delightful moment, though quite a shorter one, when family members came to meet me at the jail.... One day, when my family members came to meet me I handed over Rs. 5000 which I earned while working in the jail. Once I passed on Rs. 1,000 and then, Rs. 2,000 but took away Rs. 500 for my personal consumption to purchase soap and oil. In the jail I worked in the field for 7 years. 

In 2009, I asked the police officer, "When I would go home?" Then, his response was that my jail term had finished two months back as I was unable to pay the penalty due to tuberculosis. Then he told me that I would be released on 2nd February 2011. After this, I started counting the days and used to think if I had the penalty to pay and not afflicted by tuberculosis then I could have been in home. The days passed by.

2nd February was day of celebration for me. Earlier I had informed my family members. I was besieged by happiness and I did not take any food..... I was thinking I would go to my home and village. I would breathe in fresh air liberated from the shackles of bondage. Seeing the Superintendent of Police (SP) coming, I rushed to the office, and then he handed over a cheque of Rs. 6,081 and gave me Rs. 500. After being released I briskly walked towards my home. Then, tears jerked through my eyes and it seemed that happiness was all around me. 

Reaching home, I spent the entire night talking to my wife and children...... For earning a living she carried lanterns or tube lights over her head in wedding ceremonies at night. She made leaf plates to run the household. My son toiled hard to earn Rs. 35 as a daily wage. Listening to their woes I cried incessantly.

 

False case was framed against me and jailed for 10 years. I lost 10 years which won't come back. What I want that it should not happen with others....

Coming back from the jail, I am no more interested to go anywhere. After being punished for so many years I started thinking myself as guilty. I think what people might be thinking about me. I am mentally disturbed. Due continuous police beating and the hard toil which I put in jail for years together, there is always terrible pain in my body."

(Excerpt of the Testimony of Harinath Mushahar and the testimony was recorded by Farahat Shaba Khanam and Meena Kumari Patel on 4^th March, 2011, under RCT-PVCHR initiative for Testimonial Therapy[i])

 

In this article detention refers to prison, police custody and custody under security forces.

 

Why Testimony

 

The testimony (truth telling and emotion-pain sharing of survivors) is a short psychological approach to trauma. Significance of truth is an important aspect of the justice process. Testimony is located within the broad framework of social construction and provides valid information of human rights violation without humiliating the witness. It has often resulted in the survivors overcoming depressive symptoms and cope with difficult situation. Survivors rediscover self worthiness and dignity. Regaining self esteem by recording their stories in a human rights context, private pain is reframed with a political meaning. Compilation and analysis of information emerging from testimonies indicates the rights abuse in the originating country and helps in initiating advocacy measures for institutional reform.

 

It has played an important role as a central mechanism in the functioning of the Truth and Reconciliation Commission of South Africa, studying suppressive symptoms of the traumatised Bosnian Kosovo refugees, treatment of traumatised asylum seekers in Netherlands, rural community in Mozambique with survivors of prolonged civil war, traumatised Sudanese adolescent refugees in United states and also used for injured humanitarian aid workers who had survived the bombing of the UN Headquarters in Iraq. In India it has acquired psycho-legal form that emphasises on denunciation of human rights violation and initiates advocacy for justice.

 

Testimony involves following three components:

(1)   Private: Psychological rehabilitation of the survivor leads to certain degree of restoration of physical and mental state. This opens the possibility of his/her participation in a community movement and ultimately becoming a human rights defender;

(2)   Legal: Testimonies provide a lot of subjective information about the plight of the victim which help the court to take into account when the bail application of the victim is considered. The human sufferings are never recorded in the court proceedings. However, these small references of human sufferings often go in favour of the victim in front of the well prepared perpetrator;

(3)   Political: Under testimonial therapy, public ceremonies are organised to honour the survivors of torture. These ceremonies provide an opportunity to bring back the survivor to the same society/ community that has isolated him/her for being tortured. Testimonies are read out in the presence of the villagers, invited guests, local politicians, elected representatives, and local media creating debate and discussion at the local level because it contains human sufferings, institutional malpractices, and failure of constitutional guarantees. Testimonies can be used as urgent appeals and advocacy work. Campaigns can be initiated by "psychological mapping" of the evidence of the severe effect of torture on large number of people. Considering the difficulties in getting the state's approval for visiting and monitoring the detention centres under the police, para-military forces and the military across the country, these testimonies are great source of primary data for research work. Organisations following developments relating to use of testimony emerging out of torture and organised violence can help building foundation for People's movement.

The concept of testimony was brought into India by Rehabilitation and Research Centre for Torture Victims (RCT). Both RCT and PVCHR worked together to learn and adapt it in Indian context.[ii] At present PVCHR and Wide Angle are two organisations using it in their work to strengthen rule of law.[iii] Both the organisations are documenting different kinds of experiences because psychological suffering of the victim has never been an area of concern for the state and civil society groups.  The focus and content of the debates during Prevention of Torture Bill, 2010 both inside and outside the Parliament prove the point.

 

Findings from the Testimonies of the Survivors of Torture

Following findings have emerged out of the testimonies of the torture victims:

 

(a)   It is immensely difficult for an ordinary citizen to negotiate with the unlimited power and absolute impunity enjoyed by the security agencies and law enforcement agencies to get justice;

(b)   With court process becoming expensive and human rights institutions having limited mandate, the poor victims confront limited scope to  access to justice;

(c)    Belief in 'masculinity' and 'body capital' are also reflected in the form of 'brutal nature' of forces;

(d)   Majority of the detainees are poor, marginalised and people from religious minorities charged with either unnecessary or unjustified sections.

(e)   If  one tries to abjure violence and lead a normal life particularly, in conflict area, there is no scope for initiating process of social reconstruction and coexistence;

(f)     with state outsourcing legislative initiatives to non state actors like business houses and multinational companies, it will be futile to expect that door of justice will be closer to poor;

(g)   Growing urgency to address 'right to health' for victims in detention; 

(h)   Present systems of governance hardly conform to the UDHR's language and ideology.  

 

 PVCHR and Detention Watch[iv]

 

As testimonies poured in, PVCHR got an insight into the multidimensional and multilayered issues related to and relevant to the justice process and survival of the victim. The available information convinced everyone in PVCHR to begin an initiative called Detention Watch. Under this initiative, whenever there is information of unlawful detention, the matter is immediately taken up with the concerned police station under which the accused is confined. Interventions are also done by communicating with senior police and civil administration of the state, State and National Human Right Commissions to protect the accused from physical and mental torture. Representations are also made in the court and other concerned authorities. Not surprisingly, no one has been subjected any kind of physical torture in all the cases of interventions under this initiative However, there are varying degree of psychological anxiety and fear prevalent among those detainees.

 

In India custody does not mean "safe custody." It is a place where one encounters the prevalence of opposite norms and practices of a civilised society. It drives one through the ugly side of the repressive character of the state. It is this place from where the victims start loosing faith in the state. Perhaps this is also a reason why no one in this country has ever come back from the police custody to say that she/he was respectfully treated as a citizen of this country. 

 

Every detainee is in a situation of particular vulnerability, both vis-à-vis their captors and in relation to their environment. The change in status from a free person to detainee means the loss of all points of reference and immersion in an unknown world where the rules are different and the valued unfamiliar. Life in a closed environment away from the outside world tends to dehumanise people by eliminating individuality and responsibility. Detention is thus a fundamental change for each individual person, even if he or she is prepared for it.[v]  This vulnerability is accentuated in situation of armed conflict and collective or political violence when the isolation and the temptation to use force in an abusive manner are even greater.[vi]

 

Regulatory Mechanisms should be put in place to ensure a favourable environment for the detainees. The later ensures the dignity and well being of the detainee. The primary responsibility for establishing and maintaining such an environment rests with the authorities concerned. They are duty bound to provide the vital needs of the persons they arrest and detain and to guarantee that they receive decent, humane treatment. When they become aware of the problems, they have to take all necessary steps as soon as possible to remedy them. This also mean proceedings to make a prompt and impartial investigation whenever there are grounds to believe that  abuses have taken place (This obligation is notably contained in Article 12 of the Convention against Torture), and then, if the facts are confirmed, imposing appropriate penalties.(In particular, on the basis of Article 4 of the UNCAT, but also under the provisions of the Geneva Conventions concerning grave breaches and other serious violations of International Humanitarian law, Article 40,50, 129, and 146 of GC I,II,III and IV respectively). This favourable environment, even if it does exist, is potentially unstable. Thus the risk of abuse is constant. Favourable environment therefore have to be monitored, developed and consolidated by mechanisms able to detect abuses as soon as they come to light and exert the necessary pressure on the relevant authorities to ensure that they take the appropriate steps.[vii] These regulatory mechanisms could include media, citizen's rights groups, lawyers, independent judicial system, and the traditional role of elders in the societies.

 

There is no disagreement in the argument that structural deficiencies and politicisation of functioning of police and security agencies have adversely affected the latter's performance immensely. But it is also a proven point that social structure plays a great role in perpetuating custodial crime. Caste and religious loyalties decides not just ministerial posts but also official postings. Evidences indicate that postings are temporarily done to neutralise certain individuals in custody. These untold and unholy alliances, which can not be checked by law pose serious challenges to justice process of this country. Rights and guidelines laid down by the honourable court and Human rights institutions have not deterred the perpetrator to commit crimes in custody and in other places of detention where majority of the victims are youths belonging to poor families, minority groups and socially backward groups.

 

To have a political, legislative, and institutional environment that would encourage the concerned authorities to undertake obligations and respect rights of the person in detention, Detention watch feels there is urgent need to, (a) ways must be found to register information regarding the accused the moment a person is taken into custody. It could be done through email, phone call, fax and telegram. This point of registration must remain within the supervision of the judiciary; (b) undertake media and legislative advocacy, a step ahead from monitoring of custodial violence.  Harm to any defenceless person in the custody is a great betrayal by the state and (c) provide testimonial therapy for psychological support.   

 

Judiciary: Distancing away from Survivors

 

Harinath's case is an indication of what is happening in the system. It is certainly not the case always and everywhere but this testimony has highlighted the glaring systemic loopholes affecting the future of citizens of the country in the absence of accountability in the context of right to life with dignity under Article 21 of Indian constitution. Unfortunately, majority of the detainees are illiterate and they do not understand what all documents they are signing. In some cases it has so happened that they have signed documents related to their land instead of court papers. As the legal process is becoming expensive, detainees who can not afford to pay even for their bail bond continue to languish in jail. The long and tedious process of verification of the bail guarantor has created more hurdles for them.   

 

So many years after Independence, the state has not been able to establish a scientific investigation process. Lack of investigative manpower from the field of forensic and medicine limits the fairness of trial. Investigation report of a Daroga (lower police official) who is often selected for the job on the basis of a minimum educational qualification and physical fitness is considered as the entry point of the trial. Impunity enjoyed by the state apparatus is an important factor that perpetuates the crimes in custody. Complaints against such perpetrator often results in acquittal as the accused person manages to influence all forms of departmental or judicial investigation against him. Rarely the solidarity behind the accused persons fizzles out in front of judicial activism generated due to media onslaught. For that to happen, either the victims or the accused has to be high profile in nature. Systems must be put in place to protect the life of people like Harinath by prosecuting the concerned investigating officer and provide immediate and adequate compensation to the survivors with an apology from the state. Given the conditions of detainees, the policy makers in consultation with judiciary should consider decriminalising certain offences. It would not only decongest number of detainees but also reduce burden on judiciary.

 

People in India have the courts with great hope. Besides deciding the cases, the courts have done some exemplary work to restore the confidence of ordinary citizens in the judicial process. Few months back the Honourable Chief Justice of Allahabad High Court considered news report on the issues of suicide by farmers in Bundelkhand as Public Interest Litigation. The same court also considered complaints made by PVCHR on hunger death by weavers from Varanasi as Public Interest Litigation.  Amidst this positive development, there are also areas of concern. The fast processing of evidences, particularly in Fast Track Courts has put immense pressure on all the concerned parties.  These courts might have been very useful in reducing the backlogs, which is a matter of statistics and not about appreciation of evidence. The state must consider policy reform to provide relief to the poor and establish mechanism to assess the quality of judgements with accountability.

Human Rights Institutions (HRIs): They can do better

In most part of the world institutions are created as a result of learning from past crisis. Having an institution does not mean that the crisis will stop occurring, only damage could be moderated. "We do not learn spontaneously from our mistakes. This is why we need institutions in society," says Prof Lars Magnusson of Economic History at Upasala University. Things are no different in India.

Human Rights Institutions (HRIs) like National Human Rights Commission (NHRC) and State Human Rights Commission (SHRC) are of utmost importance in addressing issues related to detainees. The number of complaints received by NHRC has highlighted the extent of human rights violations taking place in India. According to its recent press release, in last eighteen years it registered  10,94,113 cases of human rights violation, maximum 6,22,635 number of complaints are from Uttar Pradesh. NHRC has also registered maximum number of 901 cases of complaints of death in police custody. In many respects, the human rights commissions have acted as a check. The problem though is that an institution like the NHRC in a country of India's size becomes too remote from the scene to be effective in many cases. A large number of police atrocities are committed in small towns and villages of India where people are not aware of the commission's existence or its procedures.[viii]

The question that crosses everyone's mind is about the performances of the HRIs. And why their performances have not been debated or why a performance audit of these institutions has not taken place by the legislatures? A performance audit must provide space for public hearing too, so that victims, civil society groups and other interested parties get an opportunity to voice their concerns and suggestions. This exercise will provide an opportunity to find out whether the organisations have got enough mandates to fulfil the expectations and whether these institutions have delivered on their mandate.

These institutions suffer from two types of problems. First, the state does not consider protection of human rights as its one of the most important responsibilities, so it makes the institutional short of full functional through delayed appointment in important posts, providing minimum infrastructure. Had it not been so, NHRC would not have remained headless for a long time. In States, the appointments in SHRCs are more of political in nature. Second, the major problem is about the mandate. The recommendatory power of NHRC is restricted due to non cooperation by the states. The states are also using the SHRC to stall the move of NHRC in sensitive cases. However, despite limited mandate, nothing restraints the HRIs to walk the extra miles for the victims or invoke its power to remain pro active. For example, the health and hygiene conditions in the custody and prisons are in a terrible condition due to overcrowding. This needs urgent attention of the HRIs to guarantee adequate health infrastructure and food quality. HRIs need to sensitise the security forces and law enforcing agencies that the guns they are holding are to respect individual freedom and protection of constitutions. These sensitisation programmes should also focus on having respect for women and their privacy. In conflict areas, the HRIs can help in strengthening the democratic institutions and create space for reconciliation.

The political parties and the legislatures must realize adverse impact of failed institutions. They should also be aware of the consequences of power of information technology and network power of victims. The state is no longer in a position to hide its performance and intention. Its accountability for protection of human rights is no more limited to domestic constituencies instead, now it is a global commitment. The state positions are openly challenged and can be challenged by several other versions to drive opposite points at least in the web. Technology has empowered victims, perpetrators, NGOs, HRIs, state and non state actors. It has created opportunity for locals to go global.  

Remedies do not lie in just framing law. There are socio cultural factors heavily influencing the causes of torture and human suffering and it is very difficult to deal with those within legal framework, particularly how to deal with a social structure perpetuating culture of silence in majority part of India. Mechanisms must be created at the local level to debate causes of human rights violations and finds ways for preventive and containment aspect. The institutions must reach out to victims instead of waiting the victims to approach them. Institutions related to Medical and Victim Rehabilitation need to urgently highlight the importance of scientific investigation procedures and management of trauma, a precondition for a victim to be a part of justice process.

 

 

Prevention of Torture Bill-2010 and Right to Health

The Human Rights Information and Documentation Systems International (HURIDOCS)[ix] database of human rights violations tallies 73 forms of torture that takes place in detaintion. Each technique engenders short-term and long-term consequences, sometimes unique. The likelihood of profound and long-lasting psychological effects from torture is independent of the intensity, nature, or duration of the abuse, although such effects may be partly related to poorly understood psychological attributes of the victim. Torture may attack the body, but the ultimate target is the mind of the victim during, and after, imprisonment.[x]

 

Although the UN Convention Against Torture (UNCAT) recognizes that torture can be purely psychological in character and bans "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted", many policy makers and citizens underestimate the profound and intentional damage psychological forms of torture can produce. The psychological consequences for the individual can be more disabling than residual physical disabilities.  Even after the memories of the pain of a physical assault have abated or disappeared altogether, torture survivors tell their therapists of intrusive memories of mock executions and watching or hearing the torture of others.[xi]

 

A right to health care for survivors of torture is explicitly stated in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (UNCAT) that came into force on 26 June 1987.[xii] The treaty calls on the states to make it as an "enforceable right."  Few international treaties provide such an explicit statement of the right to care. The UNCAT calls on states to make the "means for as full rehabilitation as possible" along with other forms of redress, an "enforceable right". The treatment and rights of torture victims are also addressed in other international instruments.[xiii]

Testimonies of the survivors studied by both PVCHR and Wide Angle highlight the urgency of addressing detainees' right to health. The prison jurisprudence recognizes the inalienable rights of the prisoners. This right has been upheld by the Supreme Court of India in its landmark judgement in Parmanand Katara vs. Union of India (1989). According to Article 12 of the International Covenant on Economics, Social and Cultural Rights, "everyone has a right to enjoyment of the highest attainable standard of physical and mental health." Under United Nations' General Assembly Resolution 44/111, "Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation." One way to ensure that all prisoners have access to health services is to link together prison and public health care. The World Health Organization made several recommendations to this effect in the Declaration on Prison Health as Part of Public Health (2003). This right to health care and a healthy environment is linked to the persons with HIV inside the prison, to rights, like non-discrimination, privacy and confidentiality. Prisoners cannot fend for themselves in their situation of detention, and it is the responsibility of the state to provide for health services and a healthy environment. In this context, the testimonial therapy especially emphasizes on the overall well being of the survivors.[xiv]

Various international and regional oversight bodies concerned with human rights systematically investigate and document the living conditions of prisoners. Two UN Human Rights bodies are particularly important to mention: The UN Committee Against Torture (CAT) and the Special Rapporteur on Torture, both of which monitor the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Working Group on Arbitrary Detention which investigates cases of deprivation of liberty imposed arbitrarily and monitors compliance with the relevant international standards. Since 2006 and the entry into force of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, an international visiting mechanism for the prevention of torture has been set up. To date, 37 of the 62 countries that have signed the Optional Protocol have also ratified it, [xv] allowing regular visits on their territory.

 

Similar mechanisms have been implemented at a regional level, within the member states of the Council of Europe, with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The Committee, composed of independent and impartial experts from various backgrounds, exerts its control by means of regular visits to different places of detention (e.g. prisons and juvenile detention centers, police stations, holding centres for immigration detainees and psychiatric hospitals). It surveys the conditions of detention and recommends, if necessary, improvements to the states visited.[xvi]

 

Prisons and jails in even the richest and most developed countries are still plagued by severe overcrowding, decaying physical infrastructure, a lack of medical care, security abuses and corruption, and prisoner-on-prisoner violence. Rates of infection with regards to tuberculosis, HIV and hepatitis are much higher than in the general population, and chronic diseases, especially psychiatric conditions, are often neglected.[xvii]

 

The health status of prisoners has highlighted the urgency of the role of medical professionals in fighting impunity and establishing right to health. Although medical workers in general do not require knowledge of human rights and law, their ethical duties require them to assume the role of advocates on behalf of their patients. This is particularly true in the closed and isolated environment of prisons, where human rights abuses occur with impunity and where health workers are sometimes the first witnesses of such violations.[xviii]

 

 

Protecting the rights of the prison population imposes innovative thinking inspired first by patients' needs and expectations. The accumulated experiences of prison medicine could play a complementary role in documenting situations that could lead to health policy reforms. The systematic screening of violence at prison entry – which explores violence experienced by detainees during arrest or incarceration (violence expert testimony evaluation) – is a good example of how organized epidemiologic and clinical information collection could be used to defend prisoners' rights and improve prison practice.[xix] Such operational research, using equity as its conceptual "lens", offers a means of monitoring the relevance and responsiveness of clinical activities in such settings.

 

Prisoners are more likely to be in a bad state of health when they enter prison and have therefore more health-related needs, and higher consumption of health services, than the general population.[xx]  Caring the prisoners reflect the values the state and the society in the form of justice and solidarity. 

 

Guaranteeing Prisoners should highlight (1) Separation of power between the judicial system and medical professionals. There should be proper medical cadre dedicated to service for the prisoner, including psychologists and psychiatrics; (2) specialized training programmes for the prison staff with focus on priority on humanitarian law and rehabilitation.; (3) a through medical profiling of the prisoner at the time of entering and leaving the prisoner; and (4) compulsory  medical insurance of the prisoner.

 

In a country like India where policy makers and politics juggle their priority for providing health care to its vast population within the available resources, need of victim of torture is often considered synonym with basic health requirement. The medical curriculum does not prioritise comprehensive rehabilitation of a victim. Neither the society is sensitised for that.  Many health care workers underestimate the value of treatment.[xxi]

 

Despite criticism NHRC has provided landmark directives on Right to Health. It is time that NHRC makes a assessment of the trauma and psychological suffering of the victims of torture and detainees. Its opinion would matter a lot and possibly help in opening new horizons of hope for the victims of torture.

 

Conclusion

Political consensus should be built to create provisions for legislative resilience, institutional reliability, and social reconciliation. World wide there are examples to prove that violence perpetrated by the state in peacetime or during an extra ordinary situation has failed to win the trust of its own people. There is no need to justify that violence wins hearts. Politics of the state is responsible for prevalence of a peaceful situation as well as situation of emergency. Proportion of torture is directly proportional to the degree of alienation. Misuse of law enforcement agencies for political gain is as dangerous as the willingness of the former to be misused by the later for protection and indulging in unlawful activities. The values and rights of the constitution do not match with the procedural guarantees laid out by the legislatures and implemented by the administration. This needs urgent corrective measures before the victims lose their trust in the constitutions for being denied justice. It is different matter that dalits despite facing atrocity in every eight minutes in this country have not revolted perhaps because they still have trust in the constitution drafted by Dr Ambedkar. They do not find problem with the constitution but see biasness in its interpretation and implementation, rightly so.

 

Nation building does not happen by showing the map of India. People's alienation from this process on the ground of denial of justice and well-being due to absence of political environment will bring dangerous consequences. Everyone in this country should see and realise that justice is done. And for that our men in khadi[xxii] and khaki[xxiii] need to do serious thinking.  

(This Article is written by Dr Mohanlal Panda, Ph.D, Jawaharlal Nehru University, New Delhi. Presently, he is working with People's Vigilance Committee on Human Rights (PVCHR) as an Advisor and Advocacy Consultant. PVCHR is a Varanasi, Uttar Pradesh based Human Rights Organisation.)

---

[i]  Inger Agger, Lenin Raghuvanshi, Sirin Shabana Khan, Peter Polatin, Laila K Laursen, Testimonial Therapy: A pilot project to improve Psychological wellbeing among survivors of torture in India, Scientific Article, Torture Volume 19, November 3, 2009.

[ii] Lenin Raghuvanshi, Shirin Shabana Khan, Giving Voice: Using testimony as a brief Therapy Intervention in Psychological Community work for Survivors of Torture and Organised Violence, June, 2008

[iii] www.pvchr.net, www.testimonialtherapy.org, http://wideanglesocialdevelopment.blogspot.com

[iv] www.detentionwatch.blogspot.com

[v] Vivien Stern, A Sin against the Future: Imprisonment in the World, Penguin Books, London, 1998

[vi] Alain Aeschlimann, Protection of Detainees: ICRC action behind bars, in the Booklet Detention, International Review of the Red Cross, Volume 87, Number 857, March 2005

 

[vii] Alain Aeschlimann, Protection of Detainees: ICRC action behind bars, in the Booklet Detention, International Review of the Red Cross, Volume 87, Number 857, March 2005).

 

[viii]  S.S. Srivastava, Criminology Criminal Administration. Allahabad: Central Law Agency, 2007

[ix]  http://www.huridocs.org/

[x]   Douglas A. Johnson and Steven H. Miles, "As Full Rehabilitation as Possible": Torture Survivors and the Right to Care,  Realizing the Right to Health (Ed), Andrew Clapham and Mary Robinson, Swiss Human Rights Book, Vol:3, 2009, Page 217.

[xi]  Dr. Jose Quiroga and Dr. James M. Jaranson, 'Politically-Motivated Torture and Its Survivors: A Desk Study Review of the Literature', in 15(2–3) Torture: Journal on Rehabilitation of Torture Victims and Prevention of Torture (Copenhagen: International Rehabilitation Council for Torture Victims (IRCT), 2005. See also www.irct.org.)

[xii]  http://www2.ohchr.org/english/law/cat.htm

[xiii]  These include: The Standard Minimum Rules for the Treatment of Prisoners (1977); Additional Protocols to the Geneva Conventions of 1949 (1979); the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988); International Covenant on Economic, Social and Cultural Rights as elaborated in General Comment No. 14 (2000); the Rome Statute of the International Criminal Court (2002); the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005); and the Convention on the Rights of Persons with Disabilities, 2007.

 

[xiv]   Slim Slama, Hans Wolff and Louis Loutan, The Right to Health in Prisons: Implications in a Borderless World, Realizing the Right to Health (Ed), Andrew Clapham and Mary Robinson, Swiss Human Rights Book, Vol:3, 2009

[xv]  The status of ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is available at http://www2.ohchr.org/english/bodies/ratification/9_b.htm.

[xvi]  (Under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, CPT delegations have unlimited access to places of detention. They also have the right to unrestricted access inside secure units and can interview detainees in private. The last periodic visit (5th visit) to Switzerland took place in autumn 2007. It was one of 11 that the CPT undertook in 2007. Other countries include Spain, the Netherlands, Croatia and Moldova. After each visit, the CPT sends a confidential report containing its conclusions and recommendations to the country concerned. Preliminary observations by the CPT after its last visit to Switzerland are accessible at http://www.cpt.coe.int.

[xvii]  Lars Møller, Heino Stöver, Ralf Jürgens, Alex Gatherer and Haik Nikogosian (eds.) Health in Prisons: A WHO Guide to the Essentials in Prison Health (Copenhagen: WHO Regional Office for Europe, 2007), available at http://www.euro.who. int/document/e90174.pdf

[xviii]   Slim Slama, Hans Wolff and Louis Loutan, The Right to Health in Prisons: Implications in a Borderless World, Realizing the Right to Health (Ed), Andrew Clapham and Mary Robinson, Swiss Human Rights Book, Vol:3, 2009

[xix]  Dominique Bertrand, Laurent Subilia, Daniel S. Halpérin, Romano La Harpe, Jean-Marc Reymond, Donatella Bierens de Haan, Louis Loutan, 'Victims of Violence: Importance of Medical Testimony for the Practitioner' 87(12) Praxis (1997), at 417–420.

[xx]  Jean-Marc Feron et al., 'Substantial Use of Primary Health Care by Prisoners: Epidemiological Description and Possible Explanations' 59 Journal of Epidemiology and Community Health (2005) at 651– 655; Tom Marshall, Sue Simpson, Andrew Stevens, 'Use of Health Services by Prison Inmates: Comparisons with the Community' 55 Journal of Epidemiology and Community Health (2001), at 364–365.

 

[xxi]  Douglas A. Johnson and Steven H. Miles, "As Full Rehabilitation as Possible": Torture Survivors and the Right to Care, Realizing the Right to Health (Ed), Andrew Clapham and Mary Robinson, Swiss Human Rights Book, Vol:3, 2009, Page 215.

[xxii]  Meaning: Politicians in general and Elected representatives in particular

[xxiii]  Meaning: Police and other Security forces