As this report goes for print, serious intelligence failures to prevent or act against the appalling Mumbai attacks are emerging. But in addition to external terror groups, India faces an extraordinary and deepening security threat from internal conflict.

The findings of the ACHR’s India Human Rights Report 2008 serve as a warning of deepening internal conflict. The report underlines that human rights violations by the State, combined with the failure of State institutions to address these violations, are fuelling internal conflict.

If this was not bad enough the report exposes the extraordinary low level of State and non state monitoring of human rights violations in India. Both failures can be attributed to a mixture of State inaction and in some cases a deliberate policy.

Similar mistakes that led to the external terror attacks on Mumbai can be seen in India’s approach to internal conflict. Policy makers are not getting the human rights information they need to make informed decisions. And again like Mumbai, what is more worrying is that decision makers are failing to act even when the information is provided.

ACHR’s Annual India Human Rights Report

Monitoring human rights in India is an enormously difficult task.  India has over a billion people and conflict in many States. Given the scale of the task, this report is not exhaustive. It aims to chronicle patterns and examine the implications. But as the only report to examine the problem on a nationwide scale, it gives a unique overview of the human rights challenges in India. Its conclusions are worrying.

Human Rights and Insurgency

The report reveals that India has serious human rights problems that go far beyond individual cases. It strongly suggests that human rights violations are getting worse. The report clearly demonstrates that the widespread use of human rights violations by the State are feeding internal conflicts and playing into the hands of those that seek to undermine the State through terror.

The report documents widespread acts of violence and terror by armed opposition groups. It also documents the widespread use of human rights violations by Indian security forces to counter insurgency; the actions of the State involve high levels of human rights violations against the civilian population.

The report reveals that vulnerable groups are suffering disproportionately: minorities, indigenous peoples, tribal groups, Dalits, women and children are most likely to suffer at the hands of the State. The State not only violates the rights of these groups but is complicit in crimes committed by upper caste groups and the powerful against these vulnerable groups.

Fuelling Conflict

The close relationship between human rights violations by the State and growing conflict is not difficult to identify. In 2007, 29,596 cases on alienation and restoration of tribal lands were heard by the courts in Madhya Pradesh. Not a single case was ruled in favour of the tribal groups.This in part explains why Maoists from Chhattisgarh are winning ever greater support in the tribal belt of Madhya Pradesh.

Another example is the inaction of the Orissa State authorities to compensate people for repeated ‘land grabs’ by commercial companies. This failure to provide a legal means to realize justice led to violent protest in 2007. The State responded with excessive force leading to the death of many protestors including the massacre of 14 tribal people in Kalingangar on January 2, 2006. The State failed to prosecute any of those guilty.

Gross Under-reporting

The report reveals that India’s human rights problems are grossly under-reported. In addition, the methods of information collection are also denying decision makers the right information to intervene.

No statistics on human rights violations by the Army

Even the most hawkish observers of the Army’s counter insurgency strategy would concede that ‘mistakes’ happen. Yet, stunningly, the ACHR report reveals that there are no official crime statistics involving the Army in tackling insurgency. The National Crime Records Bureau (NCRB) of the Ministry of Home Affairs is responsible for collecting crime statistics. Yet, it has no mandate to collate Army related crimes.  The same is true with regard to the National Human Rights Commission.

The Army is not a self interested institution as in many neighbouring countries. It is deployed for and on behalf of the people. It belongs to the people. And it should be accountable to the people.

Flawed NCRB figures

The figures currently collected by the NCRB are flawed and outdated. For example, ‘custodial death’ is the term applied to anyone who has died in custody. It is a term to effectively describe someone who may have died of natural causes while in custody.  But it is a wholly inadequate term to describe the many cases of extrajudicial execution or a death resulting from torture carried out by the security forces in custody. A death from natural causes is an unfortunate event. Death from torture is an extremely grave crime.

In 2007 the NCRB reported that 139 people died in police custody. 23 people died during production, process of the courts and the journey connected with investigation; 38 of them died during their hospitalization and treatment; 9 died in mob attacks/riots; 2 were killed by other criminals; 31 committed suicide; 7 escaped and 29 died from illness/natural causes.Effectively this is an official denial of any death resulting from human rights violations.

If these statistics are used to examine the need for reform then there is clearly no need for reform. But these statistics sit uneasily with the findings of the Supreme Court of India that has pointed out that the police ‘more often than not seek to pervert the truth’. These figures also sit uneasily with the direction of the National Human Rights Commission on custodial death which expressed concern over:

“(…) reported attempts to suppress or present a different picture of these incidents”.

Again in 2005, in a directive issued to State Chief Ministers on post-mortem examination of custodial deaths the NHRC stated that there was:

“a systematic attempt is being made to suppress the truth and the [post mortem] report is merely the police version of the incident”.

Flawed NHRC figures

The India Human Rights Report 2008 of ACHR reveals the widespread use of torture in custody; torture that unsurprisingly regularly leads to deaths in custody. Yet torture does not even exist as a statistical term. Shockingly, even the NHRC uses the term ‘other police excess’ to describe and effectively devalue what is a very serious crime.

Suicide is another term of concern. This report reveals that suicide is regularly used by the police as a euphemism to cover up extrajudicial execution. There are sufficient numbers of cases in this report alone to raise concern.

“Encounter killing” is yet another euphemism used to hide extrajudicial executions. It pre-supposes an armed encounter. The fact that out of 301 complaints of “encounter deaths” between 1 April 2006 to 31 March 2007, over 66% (201 cases) were received by NHRC from Uttar Pradesh alone – which has no armed conflict - is extremely disturbing. Uttar Pradesh is followed by Uttrakhand (19) and Delhi (16) which have no armed conflicts either. Among India’s conflict afflicted States only Andhra Pradesh had 15 complaints. Other conflict States, Jammu and Kashmir had one case of encounter killing, Asom had 6 cases, Chhattisgarh had one case. Manipur and Tripura had no reported “encounter-killings” despite regular reports of extra judicial executions from these States.

Failure to support governmental institutions and outright cover up

All allegations of human rights violations are, of course, not necessarily violations but they do reveal the need for action by the Government of India. In a country with a functioning rule of law the burden is on the State to provide the means, laws and mechanisms to protect all citizens, even those deprived of liberty, from abuse either by the State or other body or individual. Where these protections fail the State must initiate impartial investigation, establish the facts based on the available evidence and, should there be sufficient evidence, proceed to trial.  India is failing to act in the vast majority of cases.

Even in cases where the Government’s Central Bureau of Investigation has found compelling evidence of human rights violations by the security forces, prosecutions are rare.  It reveals a dangerous weakness in India’s system of justice: a pervasive regime of impunity.

Impunity creates a dangerous perception among the security forces that they are above the law. It means a wider change than ratification and legislative reform. Impunity results in grave violations during operations. But the implications of impunity for the health of India’s democracy and its rule of law go much wider than individual abuse.

Checks and balances in any democracy are neither static nor guaranteed. If not defended, protections weaken over time particularly when challenged by the demands of internal conflict. This is why the individual emblematic cases in this report are so important. They are indicators – emblems - of a wider institutional malaise but at the same time represent opportunities to restore the rule of law.

The failure of the State to investigate and act is, in itself, a violation of human rights. But where the state does not provide legal means for victims to seek and access justice we should not be surprised over the link between human rights violations and conflicts.

The State is failing to provide a sufficient institutional framework to check human rights violations in India.  

On 17 January 2007, Chairperson of Manipur State Women’s Commission, Dr Ch Jamini stated that “The state women commission is constituted by dumping three old women in a room at a deserted office with no infrastructure. It is equivalent to announcing a death sentence for the women commission.”

The fact that many of the annual reports of the National Institutions relating to Scheduled Castes, Scheduled Tribes, Women and their State Commissions are not brought before the Parliament or State Assemblies despite submission to the relevant Ministries shows that the executive even does not inform the legislature about the state of affairs.

The National Commission for Scheduled Castes states: “The erstwhile National Commission for Scheduled Castes had submitted its 7th Report (2001-2002) to his Excellency, the President of India on 19.2.2004 till the same is placed with the houses of the Parliament by the Ministry of Social Justice & Empowerment, it cannot be made public or its copy provided on demand”. Not a single report of the NCST has been placed before the parliament since 2002. The reports of the West Bengal State Human Rights Commission have not been brought before the State Assembly since 2002. Across India, legislators are denied information about the appalling human rights situation in their States.

West Bengal has consistently hidden human rights violations against Scheduled Tribes and Scheduled Castes (7 cases in 2006) by reportedly instructing the officials not to register the cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The Judiciary

The Courts are a bright spot in this report. They have proven a powerful tool against violations of human rights but are hampered by lack of specific legislation, immunities offered in the criminal procedure code and national security laws as well as the more general problem of judicial delay.

Low levels of Non-Governmental Activity

Any democracy requires strong civil society. Yet human rights monitoring is almost non existent in many States. The report reveals the dearth of independent human rights monitoring in India - an extraordinary low level for a democracy.

Many States, (which elsewhere would constitute medium sized countries) do not only lack State institutions to protect human rights, but incredibly, have no credible independent human rights organizations monitoring human rights violations.  

A major contributory factor to this situation is the emergency-era law, the Foreign Contribution Regulation Act of 1976. The law effectively chokes off support to human rights monitoring.   This is counter productive.

ACHR accepts that there are responsible and irresponsible sources of funding just as there are responsible and irresponsible civil society actors.  But a healthy democracy requires serious questions to be asked and to have vibrant debate requires a range of views.  The point of NGOs is that they ask the difficult questions that no-one else is prepared to.  Debate and dissent are an essential part of a healthy democracy.  

Time for Reform

The appalling terror attacks in Mumbai have revealed atrocious failures in intelligence gathering and/or failure to act on intelligence. India also faces an internal security challenge. This report demonstrates that respect for human rights are an essential part of that fight. Human rights violations are the early warning of conflicts ahead.

The current institutional set up functions poorly at best, and in some cases designed to cover up. As stated above, policy makers are not getting the human rights information they need to make informed decisions. They also fail to act when such information provided. The current system is setting India up for further failure. It must be reformed.

India should consider

    -   A revision of crime statistics collection (and this should include all branches of the security forces);

- The NHRC should begin to compile statistics in conformity with international human rights practices;

    -   Increased support to the Judiciary and Quasi Judicial Institutions;

    -   The establishment of State branches of all National Human Rights Institutions in all States of India with independence, adequate powers and resources; and

    -   An immediate removal of the FCRA.

Endnotes:

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• Annual Report 2007, Ministry of Rural Development of Government of India
• 2007 Annual Report, National Crime Record Bureau, Ministry of Home Affairs, Government of India Information
• provided under the Right to Information Act, 2005
• Supreme Court of India, M.P. v. Shyamsunder Trivedi (State of Madhya Pradesh v. Shyam Sunder Trivedi and Ors. 1995 (4) SCC 262)
• letter No. No. 66/SG/NHRC/93
• Information provided under the Right to Information Act, 2005
• http://hmar.net/?p=1143