I     INTRODUCTION                                        1

II    AMNESTY INTERNATIONAL'S RECOMMENDATIONS TO THE            3
    GOVERNMENT OF INDIA

III    AN ANALYSIS OF IMPLEMENTATION OF ARTICLES OF THE COVENANT    7

     Article 2
     Article 2(1):    Implementation of the ICCPR without distinction                 7
            Box 1 - Jammu and Kashmir: Killing of a human rights defender        10
            Box 2 - Andhra Pradesh: Human rights defenders attacked and under     11             threat
            Box 3 - Gujarat: Defenders of social & economic rights under attack        13
            Box 4 - Maharashtra: State connivance in violating rights of tribals        15
     Article 2(2):     Legislation to give effect to rights within the ICCPR            18
     Article 2(3):     Avenues for redress: Investigation, prosecution and compensation    21
            Box 5 - Punjab: Continuing pursuit of justice                    25
            Box 6 - Jammu and Kashmir: Failure to prosecute security forces        30
    
     Article 3     Rights of women                                32
            Box 7 - Uttar Pradesh: Dalit woman tortured by police             33
            Box 8 - Punjab: Torture of a woman in custody                35

     Article 4      Derogations from the ICCPR                        37

     Article 6
     Article 6(1):    Right to life:"disappearances", political killings & deaths in custody     39
            Box 9 - Punjab: "Flagrant violation of human rights on a mass scale"    41
            Box 10 - West Bengal: Illegal police practices lead to death in custody    46
            Box 11 - Jammu and Kashmir: "Encounter" revealed as death in custody    48
     Article 6(2):     Use of the death penalty                            49
     Article 6(5):    Use of the death penalty for juveniles                    50

     Article 7     Torture, including rape                            51
            Box 12 - Manipur: Rape as an instrument of torture                52

     Article 9    
     Article 9(1):    Arbitrary arrest or detention                         57
     Article 9(2):     Information on arrest                            63
    Article 9(3):     Judicial supervision of detention                        64
     Article 9(4):     Right of appeal for detainees                            66
            Box 13 - Manipur: Courts uphold rights of detainee                67
     Article 9(5):     Compensation for victims of arbitrary arrest or detention            68

     Article 14     Right to fair trial                                69

     Articles 19 & 21      Rights to freedom of expression and freedom to peacefully
                protest                                 71

     Article 24(1)     Rights of children                            74
                Box 14 - Kerala: Young boy illegally detained and tortured        75
                Box 15 - Uttar Pradesh: Defenders of childrens' rights suppressed    77

APPENDIX A         The National Human Rights Commission                79

APPENDIX B        Human rights training for security forces                 82

APPENDIX C        Access for international human rights monitors            83

This submission by Amnesty International to the Human Rights Committee does not analyse each aspect of the Indian government's report, much of which is full and informative. Rather its purpose is to provide supplementary and updated information on Amnesty International's concerns and the problems of implementation of the ICCPR in India where this may be useful. Not all the articles in the covenant have been addressed.

Suggestions to members of the Human Rights Committee of relevant questions concerning implementation of articles of the covenant are given throughout this submission, but for ease of reference have been repeated at the beginning of each relevant article.

The submission begins with recommendations to the Government of India, many of which have been made by Amnesty International over a number of years. Amnesty International is calling on the government, at this time when its international obligations are under scrutiny, to take steps to safeguard the rights set out in the covenant in law and in practice.

Since the consideration of India's last report to the Committee in 1991, the Government of India has put increasing public emphasis on the protection and promotion of human rights. India's report refers to the positive initiatives taken during the years since the second report was heard in 1991 -- in particular the establishment of a National Human Rights Commission (NHRC) in October 1993. The NHRC has begun to play a key role in upholding human rights in India.

Amnesty International urges that the Protection of Human Rights Act, 1993 establishing the Commission be reviewed and amended as a matter of urgency to reflect concerns raised by Amnesty International and many other human rights organizations in India to ensure that it becomes more effective as an avenue of redress. A discussion of the NHRC is contained in Appendix A but reference is made to it throughout discussion of articles of the covenant.

In its report to the Committee, the Government of India refers to its holistic approach in seeking the realisation of human rights. Amnesty International strongly affirms the indivisibility and interdependence of human rights which has resonance in the Indian context. Many of the victims of civil and political rights violations come from economically and socially disadvantaged communities, of whom many are recognised as being in need of special protection by the Constitution of India. Moreover, those seeking the implementation of their economic, social and cultural rights, have been subjected to torture, ill-treatment and arbitrary detention. Protesters with a range of varying demands -- for example the adequate resettlement and rehabilitation of people affected by industrial and infrastructure development projects -- have been among the victims of violations.

The wide diversity of human rights activists and non-governmental organizations working on a whole range of rights in India ensures the existence of a vibrant debate on human rights issues throughout the country, despite the difficulties which they face in working to realise and defend those rights. The material for this submission comes from these activists and organizations who have brought their concerns to the attention of Amnesty International. In addition, the media in India plays a very important role in raising human rights issues and reporting violations.

One of the gravest challenges faced by the Government of India is the armed opposition active in pockets throughout the country and in border areas. The demands of the armed opposition range from greater autonomy and economic development, to self-determination. While Amnesty International recognises the problems posed by the actions of many of these groups, and condemns the human rights abuses that they perpetrate, in dealing with armed opposition, the minimum standards prescribed by the ICCPR cannot be disregarded. Patterns of extrajudicial executions, "disappearances", torture and arbitrary detention have been documented in these regions over several years.

Amnesty International urges the Government of India to

.     Withdraw the declarations made at the time of accession to the covenant with respect to articles 9 and 13

.     Review Article 22 of the Constitution of India to bring it in line with international standards. With a view to this, implement the changes to Article 22 of the Constitution as required by the Constitution (Forty-Fourth) Amendment Act, 1978

.     Review the Protection of Human Rights Act, 1993 as a matter of urgency to strengthen the mandate and operation of the National Human Rights Commission, the state Human Rights Commissions and the Human Rights Courts

.     Review the Armed Forces (Special Powers) Act, 1958, to ensure there are strict legal limitations on the use of force and firearms by law enforcement officials

.     Ensure that UN standards concerning the conduct of law enforcement officials -- including the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials -- are reflected in legislation, guidelines and training for police, paramilitary and armed forces in India

.     Review all legislation at the central and state level, including the National Security Act, 1980, which provide for preventive / administrative detention, with a view to the removal of such provisions

.     Amend the definition of a juvenile given in the Juvenile Justice Act to remove the possibility that a juvenile boy can be sentenced to death. This would bring Indian law into consonance with article 37(a) of the Convention on the Rights of the Child and with article 6(5) of the covenant

.     Take steps to abolish the death penalty in law and practice and ratify the second optional protocol to the ICCPR

.     Ratify the first optional protocol to the ICCPR to allow for individual complaints to the Human Rights Committee

.     Ratify the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

.     Ensure that the freedom to peacefully protest is granted throughout India and that excessive force will not be used against protesters

.     Ensure the protection from harassment and attacks of those defending the rights of others who may be under threat from vested interests

.     Order prompt and impartial investigations into all attacks on human rights defenders and bring those responsible to justice

.     Ensure the free and unhindered flow of information to and from human rights organizations in India

.     Grant free access to international human rights organizations and United National human rights mechanisms to all parts of India

Amnesty International urges the Government of India to take the following measures to end discriminatory practices

.     Review the implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Civil Rights Act, 1955 to ensure that they are fulfilling the purpose for which the Acts were passed -- that is, to grant protection to members of vulnerable communities

.     Review the Code of Criminal Procedure and the implementation of existing safeguards to enhance the protection provided to women detainees

.     Ensure that any woman who brings charges of rape or sexual abuse against law enforcement personnel is effectively protected from harassment or reprisals

.     Provide training in the basic principles of international human rights law to government officials, including all members of the security forces

.     Ensure meticulous adherence to laws which already exist in India which have been enacted to safeguard human rights

.     Review all provisions protecting public servants from arrest and prosecution. To this end, amend sections 45 and 197 of the Code of Criminal Procedure, 1973 to remove the requirement of the sanction of the central or state government for the prosecution of members of the police or armed forces

.     Ensure the accountability of members of the paramilitary and armed forces for human rights violations which take place in the context of situations of armed conflict in India

.     Review the Code of Criminal Procedure to ensure mandatory judicial inquiries are carried out into all allegations of torture, death in custody, rape in custody, "disappearance", extrajudicial executions and into attacks on human rights defenders

.     Take measures to ensure that investigations into human rights violations are fully independent and impartial and that victims, their relatives and witnesses are granted protection from harassment and intimidation

.     Provide an effective machinery for prompt and adequate redress and compensation for victims of human rights violations which includes assurances that those found responsible for violations are prosecuted in accordance with law

Article 2(1)

.     The Committee is urged to enquire into measures taken by the Government of India to ensure the protection of those seeking to end discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

.     The Committee is urged to enquire into measures being taken to ensure that police officers are protected from political or other influence and to prevent collusion with those who wield political, economic and social power

.     The Committee should enquire into steps taken to provide training for law enforcement agents to guard against discrimination on the basis of sex, race, colour or religion

.     The Committee should enquire into measures taken by the Government of India to ensure the implementation of legislation and other measures designed to safeguard the rights of members of the Scheduled Caste and Scheduled Tribe and other disadvantaged communities

The disadvantage suffered by particular communities, minority groups and by women has been recognised by the Government of India, in the Constitution and in law. However, contrary to the Government of India's assertion that the civil and political rights recognized in the covenant are guaranteed to all individuals without distinction, Amnesty International believes that the rights of individuals in certain areas of India and those belonging to certain communities are not adequately safeguarded in practice. Throughout India, the practices of police and security personnel have been shown to discriminate against certain communities or groups of people.

Very often, the victims of human rights violations are those seeking to end discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In the following discussion of article 2 and throughout this submission, examples are given of attacks by the state on human rights defenders including extrajudicial execution, "disappearance", arbitrary arrest and detention and the use of excessive force when policing peaceful protests.

.     The Committee should enquire into measures taken by the Government of India to protect the right to defend the fundamental rights and liberties of others

"Sex"

The rights of women cannot be separated from the rights of all people in India, and therefore relate to all the concerns raised in this submission. However, patterns of violations against women are identified where appropriate throughout the submission. For a consideration of the application of the covenant to women, see under article 3 below.

The requirements of equal access to justice, provided for by the covenant may be distinguished on the basis of language. For example, despite the fact that India has 14 official languages, according to information received by Amnesty International there are only two working languages of the Supreme Court of India -- English and Hindi -- and interpreters and translators are not routinely made available.

"Religion"

Consideration of the equal application of the covenant with respect to religion has to be read concomitantly with the section on "Social origin, property, birth or other status".

A number of religious minorities exist within India or within particular states, many of which face discrimination on the basis of their religion or social status. Discrimination on the basis of religion has fuelled the internal armed conflict in Jammu and Kashmir (see “Political or other opinion”). Muslims have faced numerous violations including extrajudicial executions, “disappearance” and torture, including rape (see articles 6(1) and 7) on the pretext of suspected association with the armed opposition active in the state, while many members of the Hindu community have been displaced to other parts of the country. In August 1996, CERD stated:

The Committee is seriously concerned that the Kashmiris, as well as other groups, are frequently treated, on account of their ethnic or national origin, in ways contrary to the basic provisions of the Convention.See footnote 1

Muslim communities in other parts of the country have not been afforded adequate protection for their rights. Following the communal riots which took place in Bombay in December 1992 and January 1993, strong evidence emerged that the police singled out Muslims for attack and supported Hindu riotersSee footnote 2. Police in the lower ranks were said to have sided with the Shiv Sena (a radical Hindu political party) which itself was accused of instigating the riots. Several Muslims later testified before the Srikrishna Commission of Inquiry, set up to investigate the riots , that police had refused to file complaints against Hindus who had attacked their property. Amnesty International has also received reports of numerous incidents in which Muslims were illegally detained and often subjected to torture at the time of the riots.

Reports of communal riots in other parts of India, indicate that Muslims have had difficulty in filing FIRs, and in ensuring thorough, prompt and impartial investigations. In April 1996, communal violence occurred between Hindus and Muslims in the town of Bhatkal in Karnataka following the murder of a Member of the Legislative Assembly belonging to the Bharatiya Janata Party (BJP), a right-wing Hindu nationalist party. During the period of violence, Muslim homes were raided by police and several young Muslim men were arrested and illegally detained -- they were released after two weeks only after the filing of habeas corpus petitions. Amnesty International also received unconfirmed reports that several detainees were subjected to torture including the beating of feet with iron rods and electric shock treatment.

In February 1995, an article was published in Bombay by a senior police officer who had just completed a year-long study of "Perception of Police Neutrality During Communal Riots" at the National Police Academy in Hyderabad. He concluded in his article that communal bias in the police force was rampant and that "No riot can last for more than 24 hours unless the state administration wants it to continue."See footnote 3 His views were reinforced by other police officers.

"Political or other opinion"

Activists in India seeking the realisation of human rights have been regularly targeted by the security forces and many of these violations are documented throughout this submission. This has particularly been the case in areas of armed conflict where human rights defenders are at grave risk of arbitrary arrest, torture, "disappearance" and extrajudicial execution. Rather than ensuring the rights of these individuals, the state has targeted their activities, often labelling them as anti-national.

In all parts of India protests are regularly suppressed by police using excessive force and allegations are widespread that false cases are filed against activists in an attempt to prevent them from carrying out their activities.

The emergence of "renegade" groups (surrendered militants backed by security forces) has made the position of human rights activists in Jammu and Kashmir untenable. They have been unable to move around the state to document human rights violations for fear of threats by "renegades" and security forces. Amnesty International believes that there has been a deliberate policy to prevent human rights activists from carrying out their activities in the state. Since 1992, several individuals who have been closely involved in the documentation of human rights violations in Jammu and Kashmir, including lawyers and journalists, have been attacked and in some cases killed by unidentified gunmen (see Box 1).

In Punjab also, several lawyers have “disappeared” and are feared to have been killed (see article 6(1)). In the north-east region, Amnesty International has received reports about the harassment and targeting of human rights defenders, including journalists, lawyers, and also judges. On 17 May 1996, Parag Kumar Das, a human rights defender and journalist, was shot and killed in Guwahati in the north-eastern state of Assam. Information received by Amnesty International indicates that “surrendered” activists of the United Liberation Front of Assam (ULFA), known as SULFA, perpetrated the killing with the possible connivance of the governmentSee footnote 4.

In areas where armed groups are active, such as Andhra Pradesh and areas of Madhya Pradesh, alleged sympathisers of the naxalite movement have been targeted for attack by police (see Box 2). Since the naxalite movement is based on calls for radical land reform, this has meant that in many areas, the most vulnerable members of the community -- including dalit (members of a disadvantaged group determined by caste hierarchies) and tribal (in some regions, known as adivasi) people -- have been the victims of human rights violations. In Madhya Pradesh for example, according to reports, adivasi supporters of naxalites who have formed youth organizations and carried out campaigns against liquor manufacture, have been harassed by police and arrested on false charges at the behest of liquor manufacturers and sellers.

On 27 March 1996, the tied body of Jalil Andrabi, lawyer and prominent human rights activist, was found in the Jhelum river, Srinagar. He had been abducted by security forces in the presence of “renegades” on 9 March, weeks before he was due to attend the 52nd session of the United Nations Human Rights Commission in Geneva. He was the fourth prominent human rights activist to be killed in suspicious circumstances in Jammu and Kashmir in the previous four years ( The deaths of three other prominent activists -- Mr H.N. Wanchoo, Dr F.A. Ashai and Dr Guru -- remain to be impartially investigated). While his was the first killing in which an independent investigation has been instituted, the investigation was hampered by the failure of the state and security forces to cooperate with it. Finally, at a High Court hearing on 10 April 1997, the special investigating team made up of police officials, submitted a report in which they claimed that a major from the 103rd Unit of the Territorial Army was responsible for the abduction and killing of Jalil Andrabi. It also reportedly indicated that several soldiers under his command were involved. The report of the Special Investigating Team was not made public.

The Investigating Team said that it had not been able to arrest the major whose whereabouts was unknown. In response, senior army officials stated in the High Court that the major had been in the service of the army for only a limited period of time and that he was no longer employed by them -- his contract being terminated on 7 November 1996. Furthermore, the army spokesman claimed that the major had not committed the crime in his official capacity and that therefore the army as a whole could not be held responsible for his actions. The Court ordered the special investigating team to make every effort to arrest the major and ordered that the full service records of the accused major be placed immediately before the court. The major was subsequently arrested and the case is continuing in court.

[ BOX 1
]

In recent months, human rights activists in Andhra Pradesh have been the subject of attack and threats. On the evening of 6 April 1997 Gaddar, a prominent poet and activist who has campaigned on behalf of dalits for several years, was shot by unidentified gunmen in his home in Hyderabad. In previous months, Gaddar had been campaigning against the police practice of cremating as "unidentified", the bodies of suspected naxalitesSee footnote 5 killed in "encounters" with police (see article 6(1)) and demanding that the bodies be handed over to relatives. He had previously been arrested by police during a protest on 22 February and detained until 1 March. Gaddar was seriously injured in the attack of 6 April and underwent surgery to remove five bullets.

A few days before the attack, on 1 April, a crowd of people had come to his house when he was away, accompanied by police in civilian clothing, protesting at naxalite violence. The crowd had previously visited the house of Mr Kannabiran, president of the Peoples Union for Civil Liberties (a national civil liberties organization) and activist and former President of the Andhra Pradesh Civil Liberties Committee (APCLC) to protest at his alleged support for naxalite violence. Gaddar's attacker was subsequently identified by Mr Kannabiran as one of those who had been to his and Gaddar's house. Although the police denied any involvement in the incident, local civil liberties organizations and many others allege that the police were behind the shooting of Gaddar. Amnesty International is concerned that an investigation into the incident is being carried out by a police inspector and is therefore not independent or impartial.

It is alleged that police have organized victims of naxalite violence to counter the allegations of human rights violations by police -- including widescale extrajudicial executions (see article 6(1)) -- being made by the APCLC and many others. Human rights activists allege that an organization called the "Green Tigers", which subsequently claimed responsibility for the attack on Gaddar, is being used as a cover by Andhra Pradesh police for illegal activities against activists. Following the attack on Gaddar, the "Green Tigers" published a threat, warning human rights activists, including leading members of the APCLC, to cease their support for the activities of naxalites.

On 27 May 1997, Mr T. Puroshotham, a lawyer and joint secretary of the APCLC was attacked from behind while returning to his home in Mahaboobnagar district at around 8pm. The attack took place in front of a police station when four men hit him on the head with an iron rod. He received severe head injuries. Mr Puroshotham claims that he was attacked by police in plain clothes and has made a statement to police to this effect. The "Green Tigers" subsequently claimed responsibility for the attack. A few days before the attack, Mr Puroshotham had filed a writ petition in the High Court of Andhra Pradesh, seeking a direction from the court to the Mahaboobnagar police authorities to preserve the dead bodies of two people killed in an exchange of fire with police on 21 May, so that they could be identified by their relatives. The High Court gave an order in accordance with his request and on the day of his attack, Mr Puroshotham had accompanied the parents of the dead men to Mahaboobnagar to collect the bodies from the mortuary. Mr Puroshotham was reportedly verbally abused by police officials at the police station.

[ BOX 2
]
As well as those defending civil and political rights of citizens, those defending a broad range of economic, social and cultural rights have been singled out for harassment by the state (see Box 3).

In December 1995, five social workers of a Calcutta-based voluntary organization campaigning against the acquisition of land for shrimp aqua-culture were arrested in Bhograi, Orissa. Four of the men were tortured while in detention and one of the men had to be hospitalised. They were only brought before a magistrate after two days when the magistrate ordered that they receive proper medical treatment and be sent to jail. Subsequently, one of the men -- Biblab Halim -- was attacked by armed men allegedly hired by shrimp farm owners. When he attempted to file a complaint with police, they refused to file an FIR and illegally detained his driver for 24 hours before releasing him.
Activists calling for a separate hill state of Uttarkhand in north India have alleged that on various occasions police in Uttar Pradesh have committed human rights violations, including torture, illegal detention and harassment of student leaders, supporters of the movement and their family members.

In one such incident, over 200 buses carrying activists bound for a rally in Delhi were stopped in the early hours of 2 October 1994 by district authorities who attempted to persuade them not to attend the rally. Members of the Uttar Pradesh Police and the Provincial Armed Constabulary (PAC), searched the buses. After several activists began to demonstrate, police reportedly opened fire without warning. Twenty-four activists were killed and several injured. Several women protestors were rounded up by police from the buses and dragged into nearby sugarcane fields and raped. The Central Government instituted an investigation by the Central Bureau of Investigation (CBI) which found some months later that the police and PAC were guilty of the rape of seven women and of "misbehaving" with 17 others. It further found that over 400 activists had been illegally detained. Investigations were also carried out by a group of members of parliament and the National Commission for Women. Notably, the CBI found that police station diaries had been tampered with and evidence "deliberately destroyed". In February 1996, the Allahabad High Court delivered a judgement awarding compensation to the victims of the human rights violations and their dependents. The Court declared that the CBI did not require the state government's sanction for prosecution of the police officers "who had gone berserk ostensibly to satisfy their political bosses". However, although chargesheets were drawn up against 21 officers, as of June 1997, they had not been suspended from their posts or brought to trial.

In August 1996, Medha Patkar, leader of the Narmada Bachao Andolan (NBA) was scheduled to address a press conference about the Narmada river development project in Ahmedabad, Gujarat. Police entered the private house where she was staying, told her that she would not be permitted to hold the press conference and arrested her under section 151 of the CrPC (Arrest to prevent the commission of cognizable offences) (for a discussion of this see article 9(1)). Medha Patkar was taken to Watwa Police Station, several miles outside the city of Ahmedabad where she was detained between 11.00am and 1.00pm. She was then served with a notice stating that she was being detained under section 68 of the Bombay Police Act (All persons shall be bound to conform to the reasonable directions of a Police officer given in fulfilment of any of his duties under this Act). She was then driven for three hours to the state border town of Godhra where she was handed over to the custody of Godhra police. She was then taken to Baroda where she was released at 8.30pm the following day.

Testifying at a public hearing on 28 January 1995, a woman who was active in the NBA referred to human rights violations to which activists were subjected when she testified:

The police squads surrounded Koti village as it was the centre for the NBA activities. The police beat the women, tore their clothes, thrust lathis into their mouths and I have been arrested many times. ... Three women have been raped.See footnote 6

[ BOX 3
]

Throughout India, poverty is one of the key factors determining vulnerability to human rights violations perpetrated by state officials and opportunities for redress. Amnesty International is aware of a number of cases in which police officials collude with politically, socially and economically dominant groupings, in perpetrating such violations (see Box 4). There is a pattern of ill-treatment of economically disadvantaged groups in custody, and the suppression of protests. A survey carried out by the Peoples Union for Democratic Rights, a Delhi-based human rights organization, in August 1991, showed that almost all those who died in custody in Delhi come from economically weaker sections of society.

Economic disadvantage is often exacerbated by the existence of rigid social hierarchies. India has recognised the vulnerable status of members of many of the dalit and tribal peoples. Many of these groups have been designated as 'Scheduled Castes' and 'Scheduled Tribes' by the Constitution of IndiaSee footnote 7, and Articles 15, 46, 335 and 338 of the Constitution specifically refer to the need to protect members of such communities from discrimination and injusticeSee footnote 8. Violations against members of these communities, previously punishable under a succession of acts including the Protection of Civil Rights Act, 1955, are currently punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This act provides for punishment for the destruction of property belonging to Scheduled Caste or Scheduled Tribe communities as well as for legal action against public servants who wilfully neglect their duties required to be performed under the Act. It also provides for special courts to be set up to hear cases of violations.

Many individuals with whom Amnesty International delegates spoke during their visit to India during July and August 1996, spoke of the failure of the 1989 Act to provide relief to victims of atrocities. Amnesty International believes that the authorities' failure to implement the provisions of this Act has led to a widespread feeling of impunity amongst those committing atrocities against tribals and dalits. It is widely accepted that the majority of crimes committed against members of these communities are charged under sections of the Indian Penal Code (IPC) rather than the 1989 Act. There is also concern that very few special courts have been set up under this Act.

.     The Committee should enquire into steps taken to ensure the setting up of Special Courts under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the number of such courts established to date

In one incident, on 14 December 1996, officials of the Agricultural Corporation visited lands occupied by members of the Bhill and Vadari adivasi communities in Shingve village, and destroyed their huts and crops. The clothes of some of the women were reportedly torn by officials. When one of the adivasi women attempted to file a complaint at the nearby police station, she was refused by police. Despite sending complaints to local officials, no action was taken against Agricultural Corporation officials. Instead, police registered complaints filed by several farmers that they had been attacked by adivasis when they went to speak to them about their encroachment on the land.

[ BOX 4
]

A national workshop in August 1996, attended by members of the NHRC, noted the following: that the violation of human rights of dalits had increased; that investigation into atrocities on dalits is "inadequate" and often "biased"; that the conviction rate of the perpetrators of atrocities against dalits is very low; that most of the atrocities on dalits centred around land disputes and that there was a need to sensitize law enforcement agencies and judiciary to the special problems posed in the protection of the rights of dalits.

Violations of the rights of those in a socially and economically disadvantaged position often occur in the context of land conflicts and struggles for resources. Local landlords are often in a position to influence the local police in any disputes they may have with villagers. In several parts of India, including in parts of Andhra Pradesh, Bihar, Karnataka, Tamil Nadu and Uttar Pradesh, conflicts between dalits asserting their rights to land against powerful local landlords, have led to violent incidents in which police have colluded. Dalits as well as tribal people are also the victims of human rights violations by police including the filing of false cases, destruction of property, illegal detention and torture.

In July and August 1995, there were several inter-caste clashes in the Tirunelveli Kattabomman, Chidamabaranar and Tuticorin districts of Tamil Nadu. The clashes reportedly began as a result of the disfigurement of a statue of a leader of the Marava caste (a majority land-owning caste). This led to attacks on dalits and reprisals. On 31 August, hundreds of police entered the village of Kodiyankulam, on the pretext of searching for home-made weapons. Several people, including women and children, were beaten by police and many houses belonging to dalits were destroyed together with their contents. Several people received bullet injuries when police fired on them. A writ petition was filed by a local doctor in September 1995 concerning the incident, calling on the authorities to prosecute police officials under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This petition was disposed of by the Tamil Nadu High Court when the government ordered an investigation by the CBI. The CBI investigation has not yet been completed and no action has yet been taken to prosecute police officers allegedly involved.

.     The Committee should enquire into measures taken by the Government of India to ensure the implementation of legislation and other measures designed to safeguard the rights of members of the Scheduled Caste and Scheduled Tribe and other disadvantaged communities

Amnesty International is also concerned that the apparent connivance of the police in supporting particular social groups, or those at an economic advantage, allows the perpetuation of practices, such as bonded labour.

Despite the attention given to the issues of bonded and child labour in recent years, the concern of activists within India and the existence of legislation abolishing its practice in India, these practices continue to be widespread. The large number of bonded and child labourers -- in the most vulnerable position in society -- are not afforded adequate protection against exploitation by the police or state authorities. Employers are able to ensure that police turn a blind eye to their activities and labourers are often unaware of their rights. In a petition filed in the High Court of Madras, Tamil Nadu, a former bonded labourer testified:

"I have studied in school up to class II and am the only literate labourer in the quarry. To my knowledge, no Government officials or police officials have ever visited the quarry. Nobody outside the quarry even seems to be aware of our plight"See footnote 10.

Aside from members of dalit and tribal communities, other individuals and communities have been targeted for attack by the state because of their social origin. In areas of armed conflict in particular, young males are often assumed to have links with armed opposition groups and are picked up arbitrarily by security forces and are often subjected to human rights violations including illegal detention, torture and extrajudicial execution. During the height of the conflict in Punjab, young Sikhs were regularly arrested and detained arbitrarily within the state and outside, while in Jammu and Kashmir, Amnesty International has received numerous reports of young men with no apparent links to armed opposition groups being taken away by security forces simply because of their name, age or appearance. Lawyers report that at the time of Republic Day in January in New Delhi, Kashmiris are regularly rounded up by police from residences and hotels and detained briefly for periods of time. It is not clear whether any of these individuals are charged with offences.

The situation is similar in the north-east state of Manipur, where young men are regularly arbitrarily detained on suspicion of having links with armed groups. This caused a retired judge hearing evidence during a Commission of Inquiry into the killing of a young woman by members of the Central Reserve Police Force (CRPF) to observe:

"These days, any person, more particularly young man of Manipur will have second thought to go forward towards the armed personnel".

The absence of safeguards for the protection of detainees, the disregard for arrest and detention procedures and the existence of special legislation in areas of armed conflict which allows for the arrest and detention of individuals on vaguely defined grounds, ensures the continuing use of discriminatory practices by security forces in these areas.

The legal edifice in India is very large. Legal protections proliferate, but are nullified by the effect of other legislative provisions or are not consistently implemented. The gap between constitutional and legislative protection and the ground reality is wide and exacerbated by a slow legal process.

In its third report to the Committee, the Government of India states: "Any person who claims of his rights being violated by a provision of law may invoke the jurisdiction of the Supreme Court or a High Court for relief and the Court, if so satisfied, may strike down the law as being violative of the fundamental rights and as such void" (para 34). The Government of India goes on to say that both the Armed Forces (Special Powers) Act and the Terrorist and Disruptive Activities (Prevention) Act (TADA) have been "tested in the High Courts as well as in the Supreme Court".

This is not borne out by the facts. Seventeen years have lapsed since petitions challenging the constitutional legality of the Armed Forces (Special Powers) Act were first filed in the Supreme Court of India in 1980 (see article 4(2)). As India's report details, constitutional challenges to TADA resulted in the Supreme Court finding several provisions in the Act unconstitutional. However, it was only as a result of widespread protests in the country at its misuse that the Government later allowed the Act to lapse when it came up for annual review in May 1995.

The Supreme Court and High Courts have played a significant role in passing far-reaching judgements recommending measures to safeguard the rights of detainees, and in other areas of human rights protection. The Committee while hearing India's second periodic report pointed to the "excellent instructions" of the Supreme Court in particular. Amnesty International welcomes judgements safeguarding the rights of detainees. However, as with legislation, the poor implementation of court orders, for example, those forbidding the use of fetters in ordinary circumstances or ensuring that relatives are informed of the arrest of individuals, leaves a wide gulf between judicial pronouncements and reality.
In December 1996, the Supreme Court passed an orderSee footnote 11 in response to a Public Interest Litigation originally filed in West Bengal in 1986, relating to the issue of violence in police custody. While considering the petition, the Supreme Court heard affidavits from several state governments concerning custodial violence as well as suggestions from the Law Commission of India. The final order of 18 December 1996 listed a number of measures that should be implemented to protect detainees including the preparation of a memo of arrest; the entitlement of an arrestee to inform a friend or relative of their arrest as soon as possible; the medical examination of arrestees on request on arrest and every 48 hours of their detention, and the setting up of police control rooms holding information on arrest and place of custody of detainees. The court envisaged that failure to comply with these measures would invite departmental action and contempt of court proceedings against police officials. Finally, the court directed that states should pay compensation for human rights violations committed by its officers.

On 28 February 1997, the Calcutta city police issued a notification to its officers based on the above Supreme Court judgement directing them to follow the court's directions concerning arrest and detention procedures. Amnesty International is not aware of whether other states have taken action to implement the Supreme Court's directives on this petition.

Numerous suggestions have been made by sitting judges of the Supreme Court, the Law Commission, the NHRC, the National Police CommissionSee footnote 12 and by the government itself for changes necessary to the law within India. Some of these suggestions, many of which have been pending for over a decade, are outlined below (see also Appendix A).

Concern for the ratification of the Convention against Torture remains relevant, given the persistence of endemic torture throughout the country (see article 7). Despite the Government of India's long- standing commitment to ratify CAT, it has not yet done so. The Government of India has indicated to Amnesty International that the lengthy process of consultation with all the States in the Union and the existence of different laws regulating the police and prisons have contributed to this delay. While Amnesty International welcomes the consultation process which it hopes will ensure implementation of articles of the Convention once it is ratified, the government's response raises fears that the differing procedural and legislative provisions enforced in different states may provide differing degrees of protection against human rights violations such as torture, as the administration of the police and prisons remain a concern of specific states.See footnote 13

As a federal state, responsibility for legislative decision making rests with the central and the state governments. The extent to which centrally enacted legislation is applicable in each state of India is unclear -- for example the notification of the centrally legislated Legal Services Authorities Act, 1987 is left to the discretion of each state. Much legislation has to be notified for application in each state before becoming valid lawSee footnote 14.

In 1995 and 1996, the Law Commission of India circulated questionnaires relating to the IPC and CrPC, which sought opinion from lawyers and other concerned individuals on proposed amendments. Although a number of responses have been returned to the Commission, including from women's groups, and the need for reform has been recognised within India, the Commission itself estimates that its recommendations, if accepted, will take several years to implement. Included in the questionnaire were questions relating to punishment for non-registration of a First Information Report (FIR) (see article 2(3) below). In its 154th report, published in 1997, the Law Commission made several suggestions for amendments to the IPC and CrPC. They included suggestions that women below the age of 18 be questioned in the presence of their parents; that they should not be called to the police station for questioning; and that as far as possible, the offence of rape would be tried by an in-camera court with a woman judicial officer presiding.

The Code of Criminal Procedure (Amendment) Bill, presented to parliament by the previous government in May 1994, suggested an amendment to section 176 of the CrPC to provide for judicial inquiries into every case of death in custody, “disappearance” and rape. It also included an amendment that would empower the detainee to inform a nominated person of their arrest and an amendment prohibiting the arrest of a woman “after sunset and before sunrise” except in “exceptional circumstances”. Amnesty International welcomed this proposal but notes that the Bill has still not become law, nor has the government referred to it in its report to the Committee. To Amnesty International's knowledge, the need for mandatory judicial inquiries into allegations of extrajudicial executions has not been discussed.

.     The Committee should enquire into the government's intention to make judicial inquiries into death in custody, "disappearance", rape and extrajudicial execution, mandatory in law

Between 1979 and 1981 the National Police Commission made a series of detailed recommendations relating to the selection of police officers, their training, supervision, working conditions and pay, and proposed an effective machinery to investigate human rights violations by the police. It also recommended that a special unit should be created in the Home Ministry to examine and implement these recommendations. However, despite repeated calls by human rights activists as well as several senior police officials for the government to implement these recommendations, they have not been implemented or incorporated into law.

Notwithstanding the extensive remedies available in the general criminal and civil law, as well as through constitutional provisions, full redress for human right violations has not been forthcoming. The discussion of article 2(3) will focus on the availability of the three components of redress, namely investigation, prosecution of perpetrators and compensation. However, before this, a brief discussion of the legal system and the legal process is necessary.

The implementation of those laws which do conform to international standards for the protection of human rights is compromised by a legal system that is prone to lengthy delays and does not provide easy access to justice. The system mitigates against those who are economically disadvantaged (see article 7). It cannot be assumed that all persons have equal access to justice -- much depends on the local situation.

Amnesty International is concerned that the legal system has effectively broken down in areas where there is internal armed conflict. In Jammu and Kashmir, court orders are regularly disregarded by officials in the administration and the security forces. In 1994, a petition was filed in the High Court of Jammu and Kashmir concerning a range of human rights violations in jails and interrogation centres in the state. The judge hearing the petition found that the allegations required a thorough probe, commenting:

"There is total breakdown of law and order machinery. I should not feel shy to say that even this court has been made helpless by the so-called law enforcing agencies. Nobody bothers to obey the orders of this court. Thousands of directions have been given to top administrative and law enforcing agencies which have not even been responded to"See footnote 15.

Human rights activists in Jammu and Kashmir have referred to the cynicism with which citizens now approach the legal system after years of seeking redress without result. A similar situation prevails in the north-east states -- the isolation and perceived alienation from the rest of India has impacted on the use of the legal system. For example, lawyers in Manipur have reported that many in the state do not consider "Indian" law to be appropriate to their situation. Difficulties in communication in remote regions have further limited access to justice. Access to redress in areas of armed conflict is further curtailed through legislation governing the operations of members of the armed forces which grants extensive powers to these forces and protects them from investigation and prosecution (see below)See footnote 16.

In many cases, victims or their relatives, attempting to seek legal redress for human rights violations have been subjected to harassment and intimidation. In Punjab, this meant that hundreds of victims and their relatives failed to file complaints concerning torture, "disappearance" and extrajudicial execution at the time of their occurrence. In December 1994, a civil writ petition was filed before the Punjab and Haryana High Court by a lawyer who had taken up hundreds of human rights cases in the state. He expressed concern at the presence of members of the Punjab police in the High Court premises in Chandigarh which had led to attempts to abduct witnesses and petitioners presenting habeas corpus writs in cases of alleged "disappearance"See footnote 17.

Reports of harassment and intimidation of victims, relatives and witnesses continue to be received from Punjab in particular but also from other states throughout India. In a case of a "disappearance" which is currently being heard in the Supreme Court of India -- that of the "disappearance" of Sarwan Singh in Punjab in January 1993See footnote 18 -- several witnesses were reportedly intimidated in March 1997 into signing affidavits refuting that they had given affidavits to the human rights organization which brought the case to court, testifying to the arrest by police of Sarwan Singh.

.     The Committee should enquire into measures taken by the government to ensure that victims, their relatives and witnesses are granted adequate protection from harassment during the full process of registration, investigation and prosecution of human rights violations

The NHRC is often seen to intervene when the judicial process fails or when an individual is not in a position to approach the courts. However, in the absence of the power to make binding recommendations and order the prosecution of those found responsible, the NHRC can never replace a judicial system in providing adequate redress and compensation for victims of human rights violations.

Investigation

International standards place the onus on the state to ensure that the legal system provides adequate mechanisms for thorough, prompt and impartial investigations in cases of human rights violations. In India, various types of investigations can be launched by the authorities and courts into allegations of human rights violations.

Investigations into deaths in custody are mandatory in India under section 176 of the CrPC. Such inquiries are not always held, and are more likely to take place when a death in custody leads to a public outcry. They can be conducted either by an executive magistrate (appointed by the state government and remaining subject to executive control) or by a judicial magistrate (judicial official, independent of the executive, appointed by the High Court of the state, and who remains under judicial supervision). Lawyers say that most inquiries are carried out by executive magistrates. This means that they remain under executive control, as opposed to the more independent inquiries carried out by judicial magistrates.

Those magisterial inquiries which are held are often inconclusive, which is inevitable when, as happens in many cases, magistrates depend on the police to investigate allegations of misconduct by their own forces. The police are often reluctant to bring forward evidence which might implicate their colleagues and senior officials have been know to participate in routine cover-ups by police of deaths resulting from torture (see article 6 and Box 10).

The state or central government authorities can also order an investigation to be conducted under the Commissions of Inquiry Act, 1952 -- the findings of which are not binding, nor do they automatically result in prosecution. Such a Commission was appointed to investigate the immediate causes of, responsibility for and the conduct of security forces during riots which took place in Bombay in December 1992 and January 1993. In several instances, the terms of reference of such Commissions of Inquiry have been criticised by activists within India. For example, when a Commission of Inquiry was established to investigate a police firing which occurred on 1 July 1992 in Bhilai, Madhya Pradesh, in which 11 protesting industrial workers were killed, its terms of reference excluded incidents which did not occur on that day. The Commission therefore refused to hear evidence of the subsequent torture and ill-treatment of individuals by the police and of connivance between politicians and industrialists which facilitated the violations.

In a hearing in October 1992 of the habeas corpus petition filed by Kashmir Singh regarding his son's "disappearance", a warrant officer was appointed by the High Court to search for Harjit Singh. The warrant officer, Kashmir Singh and a relative visited the Mal Mandi Interrogation Centre, Amritsar on 17 October and reportedly caught sight of Harjit Singh behind the bars of a window on the first floor of the interrogation centre. When they were finally granted access to the interrogation centre by a police officer who initially refused them entry, Harjit Singh was not there. As a result of this incident, the High Court appointed a sessions judge to inquire into whether Harjit Singh was present at the Mal Mandi Interrogation Centre or whether he was killed in cross-fire on 12 May 1992. The High Court requested the sessions judge to conclude the inquiry within three months.

On 28 November 1995, the findings of this three year inquiry were finally disclosed to the High Court of Punjab and Haryana. The report noted that the state authorities did not fully support their version of the arrest and subsequent death of Harjit Singh with evidence. It also revealed that the police did not follow arrest and detention procedures fundamental to ensuring the protection of the human rights of prisoners and detainees as well as investigation procedures which would ensure independence and impartiality.

However, the inquiry failed to reach a conclusion about the fate of Harjit Singh and recommended that the case be thoroughly investigated by a "Specialised Agency under the directions of the Hon'ble High Court".

Despite this, as of the beginning of June 1997, and despite repeated appeals by Amnesty International and the intervention of the NHRC, no further enquiry has been ordered by the High Court and the case remains pending.

Although the onus is on the officer of a court to ensure speedy justice, it is clear that during the inquiry, the powers of the court to require evidence and to ensure that the case was investigated in a thorough, impartial and unhindered manner were not fully exercised. Several of the state respondents, including key police witnesses, failed to appear before the judges during the hearings of the enquiry. In addition, on several occasions, witnesses and relatives of Harjit Singh -- including his four-year-old son -- were subjected to harassment and intimidation by police.

[ BOX 5
]

Individual victims of human rights violations throughout India can now appeal to the NHRC which has taken up thousands of complaints since it was set up in 1993. It can order investigations by the states concerned or undertake investigations using its own investigative machinery with the assistance of the state authorities (as it did for example in Andhra Pradesh -- see article 6(1)). In many instances it has not accepted the findings of state investigations and has called for the presence of state officials to explain the absence of redress measures for victims.

However, the ability of victims to approach the NHRC is not always clear-cut. In January 1996, a human rights organization in Bihar (JOHAR), concerned that it would not get a fair hearing in a local court where it alleged that the judiciary was under the control of the local administration, filed a petition in the Supreme Court regarding deaths in custody in Bihar during 1995. In response to the petition, the Supreme Court stated: "The petitioners are at liberty to take such other proceedings, as are available to them in law" and dismissed the petition. When the organization approached the NHRC some months later it responded: "In the light of the direction of the Supreme Court, the Commission would not be right in entertaining this complaint. If the complainants are not in a position to meet the expenses of the litigation, it is open to seek the assistance of the legal aid authorities. No action".

Moreover, the mandate limitation of the NHRC which means that it cannot look into an allegation of a violation which took place over a year before the complaint is made to it, excludes thousands of victims from seeking redress through this channel. There are often compelling reasons as to why a victim does not come forward immediately to make a complaint.

In Jammu and Kashmir, Amnesty International has documented hundreds of cases in which there is evidence to suggest that police and security forces have been responsible for "disappearances" and deaths in custody, but where investigations have not been carried out by the authorities. Where allegations have been made but insufficient evidence exists, Amnesty International has called for impartial investigations into those allegations, in accordance with the article 13 of the Declaration on the Protection of All Persons from Enforced Disappearance and article 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as article 2(3) of the covenant. In response to Amnesty International's allegations of "disappearances" and deaths in custody in both Jammu and Kashmir and Punjab, the Government of India has denied that these violations have occurred, and insisted that effective remedies exist for anyone who wishes to make a complaint. This does not appear to be the case.

In 1994, a human rights cell was established by the Jammu and Kashmir authorities, staffed by a Divisional Commissioner and representatives of the police and other security forces. The human rights cell has dismissed the majority of allegations of violations without stating the grounds on which it based these conclusions.

The impartial investigation of violations perpetrated by members of the armed and paramilitary forces is made more difficult in areas of armed conflict by the protections granted to these forces by a variety of legal provisions (see "Prosecution")

In March 1997, the central government filed a petition in the Guwahati High Court challenging the right of the Government of Manipur to order a judicial inquiry into the death of a 15-year-old student following arrest by a battalion of the armed forces. The inquiry had been established on 21 February 1997 following a public outcry over the death of Kangujam Ojit Singh who had been arrested on 16 February by members of the 57 Mountain Division of the armed forces on suspicion of having links with an armed opposition group. He was handed over to police by members of the armed forces on 19 February who also lodged an FIR with police claiming that Kangujam Ojit Singh had been arrested that morning. Police kept him in detention and denied access to his relatives who attempted to visit him there. Late in the evening of 19 February his condition worsened and he was taken to hospital where he died the next day. An inquest found several injuries on his body, concluding that death was caused by "contusion and oedema of lungs associated with multiple bruises resulting from blunt force injuries on the body -- Homicidal in nature".

In its petition, the central government argued that under entries of List II of the Seventh Schedule of the Constitution and sections of the Commission of Inquiry Act, 1952, the state government did not have powers to order a Commission of Inquiry into the conduct of armed forces personnel deployed in aid of civil power. As well as challenging the right of the state government to order an inquiry, the government gave its version of events leading to the death of Kangujam Ojit Singh, stating that on 19 February, he had been chased by armed forces personnel during which time he sustained a "sprained leg" for which he was provided with medical treatment before being handed over to police.
Attempts by the central government to prevent an inquiry into this incident while providing a version of events which denied the allegations made by petitioners, heighten Amnesty International's concerns about impunity within the armed forces. The father of Kanjugam Ojit has filed an appeal in the Guwahati High Court which is still being heard.

.     The Committee should enquire into measures taken to ensure that all allegations of human rights violations -- particularly those in areas of armed conflict -- are investigated. In addition enquiries should be made into steps taken to ensure that these investigations are impartial and that their findings are made public

Prosecution

In India, the first step to providing a remedy for the violation of human rights is to make a complaint at a police station. Police officers are obliged under section 154 of the CrPC to take a complainant's statement down in writing in a First Information Report (FIR). Reports suggest however, that in certain areas of the country, and for certain vulnerable groups in society, there are restraints on the filing of FIRs. For example, it is reportedly common for police to refuse to file FIRs of complaints submitted by disadvantaged groups, including women and members of the scheduled caste and scheduled tribe communities (see article 2(1)).

Lawyers in Jammu and Kashmir allege that there is more systemic disregard of this provision in the state and that local police have been instructed to refuse to register complaints of human rights violations without first obtaining permission from higher authorities. Amnesty International has a copy of an order from the Superintendent of Police (South Srinagar), dated 14 April 1992, which states: "If there is any misdemeanour by the security forces during search operations or otherwise... FIRs should not be lodged without approval of higher authorities". The organization knows of many cases in which police in Jammu and Kashmir have refused to file FIRs and have thus ensured that victims or their relatives cannot pursue remedies. This instruction clearly contravenes Indian lawSee footnote 20 and is of particular concern since in communications with Amnesty International, the Government of India has pointed to the failure of individuals to file FIRs as a reason for why allegations of human rights violations have not been fully investigated in the state.

Victims of human rights violations can either bring a civil suit for damages or initiate a criminal complaint. However, civil claims involve such lengthy and costly procedures that very few embark on them and complaints against police are rarely successful. In civil complaints, the hearing of "pre- charge evidence" can -- according to lawyers -- take up to six years during which lawyers for the police and the complainant appear before the court to argue their cases concerning the charges to be framed. Hearings often take place only every four months or so and adjournments are frequent. Once charges have been framed, the case for the prosecution is handed over to a public prosecutor and the trial proceeds.

In a famous case, in August 1996, a Calcutta metropolitan magistrate found two police officers guilty of torturing Archana Guha in 1974 over 20 years after she and her brother began legal proceedings against them (an appeal against this judgement has now been filed by the police officers). During the course of the lengthy legal process, on 8 February 1994, the Supreme Court of India expressed concern about the way in which police officers accused of torturing Archana Guha in their custody had been able to abuse the Indian legal system to escape justice by repeatedly seeking the higher courts' interference to delay judicial proceedings at the lower courts on one pretext or other. Dismissing the appeals of two policemen challenging their trial the Supreme Court judges concluded: "The facts of this case impel us to say how easy it has become today to delay the trial of criminal cases. An accused so minded can stall the proceedings for decades together, if he has the means to do so."

The Supreme Court's 1994 observations underline the inability of the Indian legal system to provide speedy and effective remedies to victims of human rights violations.

Another significant impediment to pursuing a case of human rights violation, is the sanction required for prosecution of state officials. Under section 197 of the CrPC no court can take cognizance of an offence alleged to have been committed by a public servant or member of the Armed Forces while "acting or purporting to act in the discharge of his official duty except with the previous sanction of the Central or State Government". Section 45 of the CrPC also protects members of the armed forces from arrest "for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government". This can also be extended to any forces charged with the maintenance of public order in states if state governments wish.

In January 1997, the Tamil Nadu Pazhangudi Makkal Sangam (a human rights organization) and the Peoples Union for Civil Liberties presented a written submission to the High Court of Madras in a hearing concerning the jurisdiction of Human Rights Courts as set up under the Protection of Human Rights Act, 1993. The submission referred to the issue of sanction for prosecution arguing that if section 197 of the CrPC were to apply to prosecutions under the Protection of Human Rights Act, it would "defeat the very purpose of the Act and the very purpose for which Human Rights Courts have been set up, which is for speedy trial of human rights offences... One cannot infer the necessity of sanction when it may result in the very negation of the act and by extension negate the very commitment to enforcement of fundamental right and to the International Covenants"See footnote 21. The hearings in this case are continuing.

In areas of armed conflict, these provisions are reinforced by provisions in special legislation. Section 7 of the Armed Forces (Special Powers)Act specifies that "No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act". In examining India's second periodic report in 1991, members of the Human Rights Committee questioned how article 2(3)(a) of the covenant was being applied, with specific reference to this section of the Act. Concern was expressed that this provision could be used to "destroy fundamental rights with impunity except at the good pleasure of the central government".

Contrary to the statement made by a member of the Indian delegation to CERD claiming that "The Government had always granted permission for prosecution of members of the security forces if it appeared that the rights of individuals had been infringed"See footnote 22, information received by Amnesty International demonstrates that sanction for prosecution has not always been available (see Box 6).

.     The Committee should enquire into the practice of the Indian authorities in granting sanction for prosecution of officials suspected of perpetrating human rights violations

Amnesty International echoes the concern expressed by members of the Committee in 1991 concerning the application of article 2(3)(a). For instance, the organization knows of only one case in the north-east of India in which members of the security forces have been tried and convicted during the last ten years for violating human rights (see Box 12). In the state of Manipur, in several cases where FIRs have been filed with police and forwarded to judicial magistrates for investigation, advocates representing the security forces concerned have filed review petitions challenging the right of magistrates to investigate offences allegedly carried out by public servants or members of the Armed Forces under these sections, thereby stalling the legal processSee footnote 23.

.     Enquiries by Committee members concerning the number of security forces prosecuted for human rights violations in states of the north-east of India would be worthwhile

Amnesty International considers that impunity prevails in India for members of the police and security forces committing human rights violations. Although in some cases, police officers have been publicly prosecuted for human rights violations, the majority of offences go unpunished and uncensured. On occasion, the government has announced that action has been taken against members of the security forces in Jammu and Kashmir in connection with human rights violations. In October 1996, the Union home ministry revealed that 272 security personnel had been dismissed, made to retire or convicted after criminal prosecution for abuses in Jammu and Kashmir. However, despite repeated requests, no details of the nature of the offences committed or the punishments provided have been given to Amnesty International to date.

The attitude of the officials implicated in human rights violations reveals a lack of concern for the minimum standards provided in the ICCPR. Concerned about an increasing number of judgements indicting officials for human rights violations and the effect this was having on the morale of the police force, police officials reportedly appealed to the Punjab government in 1995 to intervene with the judiciary. A senior Punjab police officer was quoted as saying in 1994: "Abnormal situations needed an abnormal approach to handle it. So, why put us in dock? Moreover, whatever the police did, they had the sanction of the state. We operated within the framework of the state's policy for which we are individually being asked to pay". Most recently, several police officers detained on charges of human rights violations in the state have gone on hunger strike demanding immunity from prosecution.

Police officers have reportedly asked that extraordinary legislation be passed in the state to secure a cut-off date, which would mean that cases against the police relating to a certain period -- the height of the fight against armed secessionists -- could not be heard in the courts (see article 6(1)). According to reports, while a few police officers have now been prosecuted in Punjab for human rights violations, hundreds of petitions alleging violations by Punjab police remain pending in the courts and there continues to be an urgent need for the Government of India to address the issue of impunity for past human rights violations in the state (see Box 9).

Jammu and Kashmir: Failure to prosecute security forces

In 1991, an investigation into the "disappearance" of Javed Ahmed Ahanger was carried out by an Additional District and Session Judge, Srinagar, on the direction of the Jammu and Kashmir High Court. His report was submitted to the court in 1992. After examining several witnesses, including police officers, the judge found that there was evidence to show that Javed Ahmed Ahanger had been arrested by members of the National Security Guard and that he had subsequently "disappeared". He also expressed grave concern that despite the fact that a complaint was lodged with police by Javed Ahmed Ahanger's father in 1991, it was clear that no investigation had been carried out by police.

In May 1995, the High Court directed the Station House Officer, Shergari police station, to complete an investigation "in all respects, as per the relevant provisions of law" by 21 October 1995. The Station House Officer finally submitted his report to the court in December 1995, stating that the case had been investigated and finding a case for prosecution under section 364 of the Ranbir Penal Code (this relates to "kidnapping or abducting in order to murder").

The Additional Chief Secretary, Home, Government of Jammu and Kashmir, stated before the court that sanction for prosecution of the officers was applied for from the Ministry of Home Affairs in New Delhi in July 1995. However, at a hearing of 20 February 1996, a fax message from the Deputy Secretary to the Government of India to the Chief Secretary of the Government of Jammu and Kashmir, the Additional Chief Secretary and the Director General of Police, was presented to the court, in which it was stated that no request for sanction had been made by the state government. The court then made a further request that sanction be granted.

In July 1996, the central government notified the High Court that it would not grant sanction for the prosecution of the National Security Guard personnel. The grounds given were that there were problems with the police investigation into Javed Ahmed Ahanger's "disappearance", which according to the government, did not examine in person the National Security Guard personnel responsible. The central government requested the state government to pursue further investigations under the "prescribed procedure" and resubmit its request for prosecution if necessary. Further investigations are currently being carried out, and as of June 1997 sanction has not yet been granted.

[ BOX 6
]

In a number of instances, monetary compensation has been granted to victims of human rights violations in India, usually on a discretionary basis by the courts and the NHRC. The need to file separate civil proceedings in the courts to ensure compensation in civil cases deters many from seeking this form of redress. In the case of Archana Guha, although she has succeeded in bringing those responsible to justice 20 years after she was tortured (see above), she would have to file a new case in the courts if she wished to receive monetary compensation for the injuries she sustained while in custody.

The NHRC has taken a leading role in calling for victims and their relatives to be provided with monetary compensation. In particular, it has called for an amendment to the law so that cases relating to violations of human rights and compensation could be tried together in one court with one set of evidence so that victims would not have to endure two separate cases and wait considerable lengths of time for final compensation.

In October 1995 the NHRC suggested that monetary compensation for victims of police abuse should be taken from those responsible. While Amnesty International welcomes efforts to compensate victims, it is concerned that redress and compensation should not merely take the form of monetary awards -- it should include the prosecution of those found responsible in accordance with law. The responsibility for compensation is also broader than the perpetrators -- the state must bear responsibility for the illegal actions of its officials.

Amnesty International has received reports that the full amount of compensation ordered by the courts is not always received by victims due to corruption in the administration.

.     Enquiries about mechanisms used to monitor the payment of compensation to ensure that it reaches victims would be worthwhile

The Government of India has itself recognised the particular vulnerabilities of women, for example in its ratification of the Convention on the Elimination of All Forms of Discrimination Against Women on 9 July 1993 and the earlier establishment of the National Commission for Women. However, India has yet to submit its first report to the Committee on the Elimination of all forms of Discrimination against Women (CEDAW).

Nonetheless, the persistence of forms of sexual torture, including rape, and the barriers facing those who seek legal redress, illustrate the continuing vulnerability of women within the criminal justice system, and in their relationship with predominantly male law enforcement personnel (see article 7).

The National Commission for Women has made proposals for legal provisions and amendments that would provide greater protections for women in custody.See footnote 24 However, reports indicate that these proposals have remained dormant. Similarly, numerous suggestions were made by lawyers and women's activists to strengthen legal safeguards in response to questionnaires on the criminal law distributed by the Law Commission of India in 1995 and 1996, but it is unclear if and how these are being acted upon (see article 2(2)).

Implementation of existing legislative and other safeguards has been lacking at a number of levels and contradicts India's commitment to protecting the rights of women. Incidents of rape in custody -- a phenomenon which is also discussed under article 7 -- are a stark illustration. An amendment was made to the Evidence Act in 1983, to presume lack of consent in cases where sexual intercourse in custody is proven. In the same year, the offence of “custodial rape” was introduced into section 376 of the IPC. There have been few convictions for such practices, despite continuing reports of this violation.

In recognition of the existence of discriminatory practices against women the Indian government has passed numerous legislative measures and established Women's Police Stations in some metropolitan areas. However, during a visit to a women's police station in Bangalore in August 1996, Amnesty International delegates learned that cases of custodial rape are not dealt with there, but normally with the Criminal Investigation Department (CID) because of the seriousness of the crime.



Uttar Pradesh: Dalit woman tortured by police

At about 10pm on the night of 13 July 1996, several police officials visited a house in the village of Nangal Kahadar, Etawah district, in Uttar Pradesh.

They questioned 18-year-old Nisha Devi, wife of Sarvesh Kumar, about the whereabouts of her elder brother-in-law whom they suspected of dacoity. After she told them that he had gone to the house of his sharecropper, they left.

The police returned to Nisha Devi's house at around midnight when she told them that her brother-in-law hadn't returned. At this, the police began to beat Nisha Devi and her father-in-law. They threatened to take Nisha Devi and her 13-year-old sister-in-law to the Bakewar Police Station saying that they would "fill chillies in them" and attempted to force the two women into their jeep saying that they would keep them there until the brother-in-law surrendered. When they resisted, police ripped the sari from Nisha Devi's body. She was pinned to the ground by one of the police officers and her feet were beaten with a wooden baton. A police officer kicked her on the vagina. Her elder sister-in-law tried to intervene and soon the entire village had gathered to protest. On the intervention of villagers, the police left the village. However, before they left one of the police officers told Nisha Devi that if she complained he would ask the policemen to rape her in the police station, saying "they will tear your vagina apart and all your enjoyment will go away".

While police were in her home, they stole a sum of Rs1,100 (approximately $US 31) and some gold jewellery from an attache case.

Nisha Devi reported the incident to the Superintendent of Police on 15 July in person. She was medically examined at the Dr B. Ambedkar hospital on 16 July and the medical report confirmed injuries to her legs and spine.

A First Information Report (No.205/96) was only filed on 27 July 1996 against four police officials under sections 394 (Voluntarily causing hurt in committing robbery), 504 (Intentional insult with intent to provoke breach of the peace), 506 (Punishment for criminal intimidation), 354 (Assault or criminal force to deter public servant from discharge of his duty), 511 (Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) of the IPC. Although one police official was immediately arrested the rest absconded.

Human rights activists who investigated this incident report that local police officials are attempting to put pressure on Nisha Devi to withdraw her complaint. In one incident, police officials visited her husband's house and told him to compromise or his life and that of his wife would be at risk.

[ BOX 7
]
In January 1994, an Amnesty International delegation visited Bombay and documented cases of women who had been illegally detained by police and tortured to force the surrender of suspects whom they could not find in the wake of the bombings which took place in Bombay on 12 March 1993See footnote 25. Evidence of the illegal detention of women as "hostages" has appeared from many states in India. In November 1993 in Thganjavur district of Tamil Nadu, it was reported that police entered the home of a 20-year-old woman at 2am in search of her husband. When she told them that her husband was not at home, they forcibly took her to the Orathanadu police station where she was allegedly gang-raped by three police officers. Her husband reportedly committed suicide after hearing about the incident. Subsequent reports stated that the victim was being harassed by police and ruling politicians, to keep quiet about the incident.

The courts have judged that the practice of calling women to police stations is a "flagrant contravention of proviso to section 160(1)"See footnote 26 which concerns a police officer's power to require attendance of witnesses "provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides". However, the practice continues. The NHRC requested information from the state government of Delhi concerning the rape of a woman in custody in July 1994, asking "why the woman was detained at the police station for the night; how it was that there was no supporting entry for her detention at the police station and what steps had been taken or proposed to be taken to ensure that women were not called and detained at the police station for investigation, particularly at night. The Commission said that it had already taken serious objection to such practices persisting notwithstanding the decision of the Supreme Court in the case of Nandini Sathpathi vs. State of Orissa about 15 years back".See footnote 27

Amnesty International believes that safeguards should be established in law and that those violating those safeguards should be held to account. In 1994, it welcomed the provision contained in the Code of Criminal Procedure (Amendment) Bill 1994, which sought to prohibit the arrest of a woman after sunset and before sunrise. The Government of India has on many occasions since, pointed to this piece of legislation as a measure aimed at safeguarding women detainees. However, Amnesty International notes that this provision has been under consideration since its inclusion in a Code of Criminal Procedure (Amendment) Bill in 1988 which was never passed.

Women living in situations of internal armed conflict have also been particularly vulnerable to rape and other violations (see articles 6(1) and 7). Amnesty International has received numerous reports that female relatives of alleged members or sympathizers of armed opposition groups in the state of Punjab have "disappeared" or been killed in police custody, often after torture.

While the number of such reports has declined in recent years, many of those cases which took place several years ago remain pending before the courts without result and reports of the ill-treatment of women in custody in Punjab continue (see Box 8).

Both the courts and the NHRC have issued directives to protect women in armed conflict situations. In 1991, the Supreme Court held that:

Punjab: Torture of a woman in custody

On 5 May 1995, Devki Rani, a 45-year-old female resident of Ludhiana, in the state of Punjab, was taken from the Civil Hospital by police where she was visiting her husband. Her son, Rajesh Kumar (aged 18), had earlier been arrested and was also in police custody. Devki Rani was taken to the Atam Park police post where she was stripped naked. She later testified:

"My legs were stretched apart and hands tied behind in the police post. SI (Sub- inspector) climbed on my thighs. I was tortured and molested by ASI (Assistant Sub- Inspector), HC (Head Constable), Constable and two other men. My head was dipped in the water several times... My son Rajesh Kumar was compelled to disrobe me. I was kept in wrongful confinement for three days and was released on May 11 at 9pm".

The actions of police were apparently carried out on the instructions of a local clothes dealer who had employed Devki Rani's other son, Surinder Kumar (aged 15), but who had recently left his employment after he failed to receive his salary. Devki Rani filed a suit in the local Labour Court against the clothes dealer concerning this, and in response, the clothes dealer went to the police and filed a case against Devki Rani, saying that she had stolen some items of clothing.

Following the filing of a petition in the High Court by the International Human Rights Organization, Punjab, a CBI inquiry was ordered, which as far as Amnesty International is aware, is still proceeding.

[ BOX 8
]

Continuing incidents of rape in armed conflict situations (see article 7 and Box 12) indicate that these directives are routinely disregarded by security forces.

Regular reports appear in the Indian media of the stripping and parading of women as punishment for various crimes. Such practices have reportedly been carried out by police officers, such as in the stripping of a woman in Tentulia village, Jagatsinghpur district, Orissa in February 1995, by police officers complying with a court order to vacate illegal possessions of land.

The police response to rape, domestic violence and other forms of violence against women carried out in the community has often amounted to acquiescence. In Rajasthan, on 29 May 1994, a 35-year- old woman was stripped and paraded naked on a donkey by members of the upper-caste community in a rural village, allegedly in retaliation for crimes committed by her son. She was dragged around the village temple with her legs tied and beaten with sticks. Hot water and kerosene were then poured into her mouth and she died shortly afterwards. A report in Frontline of 29 July 1994 said that four policemen had been suspended from duty but that the government had refused to order a judicial inquiry into allegations of police negligence. Police had reportedly illegally detained all members of her family on the morning of 29 May following a complaint concerning her son's crimes but had failed to act to stop the events leading to her death.

Police in India have been accused of systematically failing to register cases of domestic violence and to take basic steps to investigate cases of rape and other forms of torture or ill-treatment perpetrated in the community. Articles about rape in Indian newspapers have talked about the "double rape" of reporting such a crime at a police station where women become targets of ridicule and abuse. Moreover, access to justice is a significant hurdle (see article 14).

All too often reports of rape speak of attempts by police to persuade women to withdraw cases or to sully the reputation of women in order to imply that the incident did not occur. It is not a legal requirement for police to send women who allege that they have been raped for an immediate medical examination. Much medical evidence is lost because this simple procedure is not followed. Bhanwari Devi, a saathin (village development worker), who was raped on 22 September 1992 in Bhateri village, Rajasthan, by five men of a higher caste, was not able to have a medical examination for 52 hours. She was initially refused an examination by the Primary Health Centre because a female physician was not on duty and she was therefore sent to Jaipur. A physician at the SMS Government hospital, Jaipur, refused to examine her without a magistrate's order. The magistrate refused to grant an order because it was "outside office hours". The next morning she was given an authorisation for a general medical examination (not a rape examination). She was finally examined at 9pm on 24 September.

.     Enquiries by the Committee into the implementation of legislative and other safeguards to protect women would be worthwhile

.     The Committee should enquire into provisions contained in numerous enactments (listed under article 9(1)), including the National Security Act and the Jammu and Kashmir (Public Safety) Act, which allow for preventive detention, with a view to assessing whether such provisions amount to de facto derogation from articles of the covenant

India has made no formal derogations from the covenant. However, when hearing India's second report in 1991, the Committee found that the Armed Forces (Special Powers) Act and the Terrorist and Disruptive Activities (Prevention) Act (now lapsed), violate articles 6, 9 and 14 of the covenant. State parties to the ICCPR may not take measures derogating from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18, even in time of emergency.

Amnesty International considers that specific legislation operative in India constitutes a suspension of rights under article 6 and possibly under article 7 of the covenant, amounting to a de facto derogation from the non-derogable rights which is incompatible with the object and purpose of the covenant.

The arbitrary deprivation of life, unconditionally prohibited by article 6(1) of the covenant and non- derogable under article 4(2), is permitted under section 4(a) of the Armed Forces (Special Powers) Act, 1958 which has been operative in large parts of the north-east region for almost four decades, and has subsequently been applied in Punjab and in Jammu and Kashmir. Section 4(a) gives the armed forces and the paramilitary forces broadly defined powers to shoot to kill in areas declared to be disturbed, either under this Act or under the Disturbed Areas Act, 1955:

“if ... it is necessary so to do for the maintenance of public order ... fire upon or otherwise use force, even to the causing of death against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or explosive substances.”

India's report elucidates the reasons for the continued application of the Armed Forces (Special Powers) Act, stating:

"...such statutes were enacted by a democratically elected Parliament, their duration was subject to periodic review, and not only could their validity be tested by judicial review, but also any action taken thereunder could be challenged before the High Courts and Supreme Court. ... if individual and isolated aberrations have occurred, there are judicial remedies available, including procedures for apprehension and punishment for such perpetrators of human rights violations" (para 17)

However, Amnesty International understands that judicial review of the Armed Forces (Special Powers) Act, which has been in force for over four decades, has been pending in the Supreme Court of India since 1980. Meanwhile, activists in India continue to campaign for its repealSee footnote 29.

.     The Committee should enquire into the continued application of the Armed Forces (Special Powers) Act which amounts to de facto derogation from non-derogable covenant rights

In hearing India's second report to the Committee in 1991, Committee members were convinced that the National Security Act, 1980 also derogated from the rights of the covenant -- notably article 9. Amnesty International considers the raft of other legislation at central and state level which allows for preventive detention, to also be a suspension of covenant rights amounting to de facto derogation (this legislation is discussed under article 9(1)).

While none of the legislation that allows for preventive detention directly derogates from article 7 which specifies the right not to be subjected to torture and to cruel, unhuman or degrading treatment or punishment, these pieces of legislation, including the National Security Act and the Jammu and Kashmir (Public Safety) Act involve the suspension of important legal and constitutional safeguards and thereby facilitate torture and cruel, inhuman and degrading treatment of detainees (see articles 7 and 9). For instance, while the authorities are obliged under Article 22 (Clauses 1 and 2) of the Constitution of India to bring anyone arrested before a magistrate within 24 hours of arrest and to permit them to consult a lawyer of their choice, these safeguards are not available “to any person who is arrested or detained under any law providing for preventive detention” (Article 22 (5) of the Constitution) (see article 9). As the Special Rapporteur on torture has noted: "Torture is most frequently practised during incommunicado detention."See footnote 30

.     The Committee should enquire into provisions contained in numerous enactments (listed under article 9(1)), including the National Security Act and the Jammu and Kashmir (Public Safety) Act, which allow for preventive detention, with a view to assessing whether such provisions amount to de facto derogation from articles of the covenant

.     Enquiries by the Committee into measures taken in India to prevent "disappearances" and to ensure their prompt and impartial investigation would be worthwhile

On many occasions the Government of India has pointed to threats to the internal security of the country and the need for special measures to deal with those threats. Amnesty International considers that on the pretext of national security, in many parts of the country, the Government of India has not adequately safeguarded the most fundamental right of its citizens -- the right to life.

Despite the existence of Article 21 of the Constitution of India which safeguards the right to life, each year in India thousands of people "disappear", are extrajudicially executed, die in custody or are judicially executed

As already discussed, the Armed Forces (Special Powers) Act which has been in force in Jammu and Kashmir, Punjab (now lapsed) and states in the north-east region, provides the security forces in those areas with powers to shoot to kill, thus providing official sanction for the excessive use of force.

"Disappearances" and political killings

In its General Comments on article 6(1) of the ICCPR, members of the Committee pointed to the need under this article for states to take specific and effective measures to prevent the "disappearance" of individuals and "establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life".

Amnesty International notes that the Government of India, in its report to the Committee makes no reference to "disappearances" and would like to express its concern at the government's unwillingness -- apparent in its communications with Amnesty International as well as the UN Working Group on enforced or involuntary disappearances -- to address this grave issue.

Amnesty International has received reports of hundreds of "disappearances" in India in recent years, the majority of which have been reported from the states of Jammu and Kashmir and Punjab where "disappearances" have been systematically practised by police and security forcesSee footnote 31. "Disappearances" have also been reported from states in the north-east region of India as well as from Maharashtra, Tamil Nadu and Kerala.

In its 1993 report, Amnesty International documented over 100 cases of "disappearance" in Jammu and Kashmir and pointed to a pattern of impunity which allowed for such practices to continue. Since the publication of that report, the organization has continued to receive reports of "disappearances" and is mindful of the fact that the authorities have not ensured that the fate of those who have "disappeared" has been thoroughly and impartially investigated. On 22 October 1996, the Chief Minister of Jammu and Kashmir, Dr Farooq Abdullah expressed, before the state assembly, his unhappiness over the "disappearance" of people in detention over the last seven years; he is reported to have said: “It is surprising that the security agencies who arrested these youths are denying that they have arrested them”See footnote 32.

Over 60 cases of "disappearance" had been included in a habeas corpus petition filed in the Jammu and Kashmir High Court by Mr Wanchoo, a lawyer active in the People's Union for Civil Liberties, in 1991 (see article 2(1)). Following his death, none of the cases were heard in the court and lawyers attempting to get the cases listed have reportedly found that many of the files of these cases are now missing from the High Court premises. The petition -- filed in 1991 -- is still pending in the High Court. A further 200 cases are reportedly also pending in the High Court.

In Punjab, with the improvement of the law and order situation in the state in recent years, hundreds of relatives of victims are now coming forward to file petitions in the High Court of Punjab and Haryana and in the Supreme Court of India. Allegations about the incidence of "disappearances", which had been vehemently denied by the Indian authorities, are now being confirmed.

Jaswant Singh Khalra, General Secretary of the Human Rights Wing of the Akali Dal political party, "disappeared" on 6 September 1995, months after he filed a petition in the Punjab and Haryana High Court alleging that in one district alone, thousands of bodies had been cremated as "unidentified" by police and that these were the "suspected militants" who had been executed by police (see Box 9). The petition filed by Jaswant Singh Khalra has resulted in a CBI inquiry, ordered by the Supreme Court (see below). The Supreme Court also ordered a CBI inquiry into the "disappearance" of Jaswant Singh Khalra which in August 1996 found nine police officials guilty of involvement in his abduction. The Supreme Court directed that the nine men face trial for the abduction and that further investigations be carried out to ascertain the fate of Jaswant Singh Khalra. To date, his fate remains unknown. Punjab: "Flagrant violation of human rights on a mass scale"

In January 1995, a petition was filed in the High Court of Punjab and Haryana by the Human Rights Wing of the Akali Dal. The petition presented a study of two cremation grounds in Amritsar district, showing that over 800 "unidentified" bodies had been cremated by police between 1992 and 1994. It also presented evidence that many of these people had earlier been picked up by Punjab police.

Over a number of years hundreds of young men suspected of involvement in the activities of armed opposition groups -- and in many cases their relatives -- were picked up by police and subsequently "disappeared". Estimates of the exact number of those who have "disappeared" vary. Some individuals are only now coming forward to file petitions in the courts in Punjab concerning the "disappearance" of their relatives some years ago. Fear of themselves becoming victims of human rights violations by police prevented them from coming forward before.

The petition was rejected by the High Court on the grounds that families concerned should file petitions in the courts concerning relatives themselves. The issue was then taken up by a human rights organization in New Delhi -- the Committee for Information and Initiative on Punjab (CIIP) -- which filed a petition in the Supreme Court in April 1995.

In November 1995, a bench of the Supreme Court ordered the Central Bureau of Investigation (CBI) to carry out an investigation into allegations contained in the petition. In the course of its investigations between November 1995 and December 1996, the CBI submitted a total of five reports to the Supreme Court -- all of these reports have remained sealed at the request of the CBI which argued that their disclosure could hamper further investigation for the determination of criminal responsibility, and would cause considerable "embarrassment" to many people. In response to these findings, the Supreme Court expressed concern at the "flagrant violation of human rights on a mass scale".

According to the Supreme Court the CBI has completed identification of 585 bodies, has "partially identified" 274 and has not identified a further 1,238. On producing its fifth report, the CBI pleaded its inability to continue investigations to determine criminal responsibility in such a large number of cases and suggested that the inquiry be continued by the Punjab police. However, the Supreme Court, on 11 December 1996, ruled that this option was unacceptable, and asked the CBI to continue its investigations, to register cases where necessary and to submit quarterly reports on the progress of its investigations. To date (June 1997), charges have only been filed against police officers for the abduction and murder of three individuals who were subsequently cremated as "unidentified".

In the same ruling, the Supreme Court directed the NHRC to "have the matter examined in accordance with law and determine all the issues which are raised before the Commission by the learned counsel for the parties [CIIP]", particularly the issue of compensation. In those cases where the CBI has identified the victim, the NHRC is to thoroughly examine each case and determine the amount of compensation to be granted to relatives.

On 28 January 1997, the NHRC held a preliminary hearing and asked the CIIP to submit in writing its views on the terms of reference of the role of the NHRC before the next hearing of 15 February. Officials of the Ministry of Home Affairs were also requested to submit their views. In its submission to the NHRC, the CIIP argued that the Commission was bound not only to look into the issue of compensation but also to look at the causes and implications of these massive violations and the culpability of the state. This would include looking at the correlation between the complaints about missing persons, police abductions, illegal detentions and false "encounters" prevalent in Punjab and the illegal cremations. The NHRC is in the process of considering these submissions.

[ BOX 9
]
Amnesty International continues to receive reports of extrajudicial executions perpetrated by the security forces in regions throughout the country. On 14 March 1997, Tarn Taran police shot dead Kashmir Singh whom they suspected of links to the Khalistan Commando Force (there were no charges against him). Police claimed that he had been killed in self-defence after attacking them with a sword. However, his father testified that police had entered their house at night and forced him and his son into a jeep. He was thrown from the jeep after a short distance and alleged that his son was later tortured and shot. Following a public outcry, the police instituted an inquiry into the incident on the orders of the Punjab Chief Minister. The inquiry team concluded its investigations within three weeks, leading to the arrest on murder charges of three police officials. The Inquiry report found that there were 18 injuries on the body of Kashmir Singh -- many of them a result of his skin being pierced by a "sharp-edged weapon" -- four abrasions to his knees and four bullet wounds.

On 31 March 1997, two men were shot and killed and one injured by police in the centre of Delhi after a car chase. Police believed the men to be gangsters but shot at them before verifying their identity. They subsequently discovered that the men were businessmen. Delhi police officials initially reported the incident as an "encounter", denying the need for an investigation. They were subsequently forced to retract this and the Delhi Police Commissioner was forced to resign after a public outcry. A CBI investigation was immediately carried out and it was announced that ten police officers would face charges of murder. While Amnesty International welcomes the swift action taken to investigate this incident and to prosecute police officers in this instance, it is concerned that the majority of "encounter killings" -- particularly those in areas of armed conflict -- are not investigated.

On 25 September 1996, Dr Ameda Narayana, a medical doctor who had been treating members of the People's War Group (PWG)See footnote 33, was killed outside the city of Warangal in Andhra Pradesh while on his way to treat a patient. According to reports received by Amnesty International, a policeman stopped him, saying that he needed treatment but as the doctor approached him, he was shot in the head and died instantly. The government claimed that he was killed by "unidentified gunmen". Despite the fact that a case was registered by police concerning the incident, according to information received by Amnesty International, the police have not carried out an investigation into the death of Dr Narayana.

After receiving allegations from the Andhra Pradesh Civil Liberties Committee that police in Andhra Pradesh have carried out hundreds of extrajudicial executions, the NHRC carried out investigations into several of these during 1996 (see Box 2). The NHRC concluded that the evidence did not show any attempt by the police to arrest those killed. It further noted that no action was taken to investigate the conduct of police officers, stating that "attention was confined to the conduct of the deceased" and that this was violative of the fundamental right to life guaranteed by Article 21 of the Constitution. It recommended that "the police should change their practice, keeping the legal position in view" and that in future, all "encounter" killings should be investigated by an independent agency. Despite these directives, killings of suspected members of the PWG in alleged "encounters" continue. Amnesty International has received reports that since the NHRC judgement in November 1996 over 70 individuals have been killed in "encounters" with police in Andhra Pradesh. In addition, in those cases investigated by the NHRC in which they found sufficient evidence to recommend that police officials be charged with murder, the Andhra Pradesh government has yet to begin investigations.

Regular reports of false "encounters" between police and suspected criminals have been received from Maharashtra and Tamil Nadu. In an incident in Rajasthan in December 1996, one person was killed and several others injured when police opened fire on a marriage party, reportedly mistaking it for a gang of criminals. Such incidents indicate that there are insufficient restrictions on the use of firearms.

Amnesty International notes that in 1991 members of the Human Rights Committee asked for clarification from the Government of India on the use of firearms by law enforcement officials. During a visit to Bombay in January 1994, Amnesty International delegates were shown Model Rules regarding the Use of Force by the Police against Unlawful Assemblies (1973). The organization is aware that there are rules specific to individual states which exist but which do not appear to be publicly available. The Model Rules specify that firearms should be employed "only in extreme circumstances when there is imminent and serious danger to life and property". Amnesty International believes that the Model Rules permit firearms to be used in considerably broader circumstances (particularly when there is a threat to property) than those set out in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and has called on the government to review laws and standing orders relating to the use of force and firearms by police and bring them in line with the UN PrinciplesSee footnote 34.

Some Indian officials have acknowledged that security forces within India resort to extrajudicial executions when faced with armed insurgency. In March 1997, India Today published an article revealing that a survey conducted among Indian Police Service (IPS) officers at the National Police Academy, Hyderabad, had found that "over 50% of the senior officers believe that in 'hostile situations', the police are justified in resorting to extra-legal methods or denying fundamental rights to terrorists and insurgents"See footnote 35. Killings have often been attributed to "encounters", despite evidence to the contrary. In the absence of routine thorough and impartial investigations into allegations of unlawful killings, and redress mechanisms as envisaged in article 2(3) of the ICCPR, Amnesty International fears that these killings will continue.

Amnesty International believes that the routine use of excessive force by armed forces in areas of armed conflict is linked to the need for clarity in the chain of command within the armed forces. Although armed and paramilitary forces are required to be accompanied by state police in all operations, in practice, they regularly undertake operations without the presence or knowledge of police. Amnesty International has received reports from the north-east of India that state police are often expressly restricted from areas where armed and paramilitary forces are undertaking search operationsSee footnote 36. This absence of control on the operations of the armed and paramilitary forces is exacerbated by the general lack of transparency in the internal disciplinary proceedings of the security forces and the protection granted to them in legislation which prevents army officials from being held publicly accountable for their actions and strengthens the feeling of impunity.

In this context, Amnesty International is particularly concerned at the repeated assertion by those in authority that when human rights violations occur, they are the actions of individuals and do not reflect on the law and order machinery as a whole.

.     Enquiries by the Committee into measures taken by the authorities to ensure clear lines of command within the security forces and to ensure accountability of those in charge of security forces would be worthwhile

According to human rights activists, the long-standing application of the Armed Forces (Special Powers) Act 1958 in parts of the north-east region, has led to widespread human rights violations including deliberate and arbitrary killings and indiscriminate killings. In one state -- Manipur -- Amnesty International has received sufficient reports of deliberate and arbitrary killings by members of the security forces to conclude that there is official sanction for extrajudicial executionsSee footnote 37. As well as the killing of suspected members of armed opposition groups in suspicious circumstances, there are numerous reports of security forces opening fire during search operations, resulting in the death of innocent women and children in clear violation of the right to life. Similar incidents have been reported from other states in the north-east region.

The NHRC and the Supreme Court have regularly pointed to practices employed by security forces which violate individuals' rights and have made recommendations which have attempted to prevent future violations. However, in an order concerning the extrajudicial execution of two men by police in Manipur in 1991, the Supreme Court, while granting compensation to the relatives of the two men, did not recommend the prosecution of those found responsible and remarked: "It is not for the court to say how terrorists should be fought". This statement suggests that the security forces are being given a free hand in operations against armed opposition groups.

.     The Committee should enquire into measures taken to review laws and standing orders relating to the use of force and firearms by security officials and bring them in line with the UN Principles

.     The Committee should enquire into the mechanisms which exist to ensure that lethal force is not used as an alternative to arrest

Another factor which has weakened the right to life of individuals in areas of armed conflict in India is the emergence of armed groups acting in connivance with the government. These armed groups, active in Jammu and Kashmir, states of the north-east, and in other parts of the country, such Bihar, have perpetrated human rights violations, including deliberate and arbitrary killings, with impunity.

On 11 July, 1996, nineteen women and children from the dalit community were killed in an armed attack in the Bathani tola (hamlet), Barki Kharav village, Sahar district, Bihar. Over 100 armed men of the Ranbeer Sena, a “private army” of upper-caste landlords of the district had targeted the hamlet, on the assumption that the residents were supporters of the CPI(ML-Liberation), a Maoist group with support in the area. According to reports, the police failed to intervene until after the attack, despite the existence of three police camps within a 1.5 kilometre radius of the hamlet -- which would gives weight to reports that the Ranbeer Sena was acting in connivance with the police. After a subsequent visit to Bathani tola, the Minister for Home Affairs, Mr Indrajit Gupta admitted that the massacre exposed the total failure of the police administration in Bihar.

Amnesty International acknowledges the many positive steps taken by the NHRC in particular to highlight the issue of torture leading to death in police stations, to prevent the occurrence of such deaths in the future and to provide redress to the relatives of victims. Intervention by the NHRC has increased the transparency with which the issue of custodial violence is addressed in India (see Appendix A).

In several cases the NHRC has found accounts by state governments of incidents in which individuals have died in police custody to be unsatisfactory and has called for further investigations by the state or has carried out its own investigations. In several cases this has led to the disclosure that individuals died as a result of torture and the initiating of proceedings against police officers responsible (see under articles 2(1),7 and 24 and Box 10).

The NHRC noted the lack of interest of the government in ending impunity in Jammu and Kashmir when it noted in its annual report for 1995-1996 that the state authorities had not complied with its 1993 directive to inform it within 24 hours of any cases of death in custody. The limitations of the Protection of Human Rights Act, 1993 (see Appendix A), ensure that the very serious allegations of widespread torture leading to deaths in custody and extrajudicial executions in areas of India such as Jammu and Kashmir and in the north-east region, are not systematically investigated by the NHRC.

Amnesty International believes that those arrested in areas of armed conflict are particularly vulnerable to torture and sometimes death in custody since they are not offered the same protections as individuals in other areas.

Debu Pramanik, an out of work dock labourer died in the custody of West Bengal police on 12 July 1996 after being held in custody for 60 hours.

Debu Pramanik was taken into custody following a disturbance involving a drunk police constable from Keota outpost, Hooghly district, on 9 July 1996. The constable had become drunk after drinking at the house of Debu Pramanik. Unable to make his way back to the police outpost, at approximately 11.30pm, police from the outpost came to the village to remove the drunken police constable from the street where he was lying. Police also took Debu Pramanik with them.

He was taken to Sahagunge Thana police outpost and held until the early hours of 10 July before being transferred to Chinsurah police station. Police refused to allow his wife, Bula Pramanik to visit him in detention, did not provide him with food and did not register his arrest in their records. They subsequently registered the arrest as having taken place at 9.05pm on 11 July 1996. At around midday on that day, he was finally taken to the court of the Sub-divisional Judicial Magistrate. However, the assistant superintendent of the court lock-up refused to admit Debu Pramanik because he was unable to stand or walk and sent him for medical treatment. However, police did not take him to a doctor and on 12 July at 12.55pm, he was released on bail. His wife attempted to take him home by auto rickshaw but he was pronounced dead by a doctor 35 minutes after his release. The post mortem report from Imambara hospital morgue, found a number of injuries on the body which were between 12-36 hours old. These included a number of burn marks, bruises and swellings on the victims leg, toes, knee, chest and face. Debu Pramanik also suffered from pulmonary tuberculosis and cirrhosis of the liver.

Investigations carried out by the West Bengal Human Rights Commission following press reports and a complaint lodged by the Association for the Protection of Democratic Rights (APDR) produced overwhelming evidence that Debu Pramanik was arrested on 9 July 1996 finding that

"most of the GD [General Diary] entries were manipulated and made subsequently to support the false claim of the police regarding the arrest and detention of Debu Pramanik on a later date".

The state Commission recommended the criminal prosecution of the officer in charge of Chinsurah police station, and the instituting of departmental proceedings against two other officers. In summing up, the Commission noted:

"The Commission views with displeasure the tendency on the part of even senior police officer, who, presumably, motivated by narrow departmental consideration goes out of his way to defend police action even if the said action is illegal and unlawful. The Commission initially faced difficulty in proceeding with this investigation because of lackadaisical response even from the S.P. [Superintende of Police] Hooghly... The report received from S.P. is not found factually correct"

The Commission further asked that its "displeasure and disapproval" of the conduct of the S.P. and other officers should be communicated to them by the government and ordered that the investigation into the death initiated by the local police station should be transferred to the crime branch and that Rs20,000 in interim compensation be paid to Bula Pramanik. To date, no action has been taken against police officials.

It is alleged that the police officers arrested and tortured Debu Pramanik in order to obtain money from him. The victim's only source of income had been the illegal production of alcohol which local police had allowed him to continue to produce in return for bribe money he was forced to hand over to police. It is reported that both police from Chinsurah police station and the police outpost were demanding more money which Debu Pramanik was unable to pay.

[ BOX 10
]
In response to Amnesty International's allegations of over 700 cases of death in custody in Jammu and Kashmir between 1990 and 1995, the government termed the majority of them as "encounters" with members of armed opposition groups without providing supporting evidence for this version of events (see Box 11). Eighty-five cases were said to be "under police investigation" or the subject of a "Magisterial Inquiry under section 176 CrPC". In only eight cases were charges said to have been produced in court, but the government did not say whether any of the alleged perpetrators had been brought to justiceSee footnote 39.

Reports from Jammu and Kashmir indicate that deaths in custody have continued since Amnesty International's report was published in January 1995 and that in recent months the number of deaths in custody have been escalating. In January 1997, the Jammu and Kashmir Bar Association documented 218 deaths in custody during 1996. All had reportedly been arrested first and then killed in detention centres inside or outside the state. More recently, the Institute of Kashmir Studies documented 29 cases of deaths in custody during January 1997, 33 during February 1997 and 32 during March 1997, stating in a report that "the overall situation in the state, far from showing the slightest improvement, has been progressively deteriorating... Official claims that the victims have been killed in "encounters" or in "exchange of fire" are contradicted not only by the witnesses who saw them being arrested and taken away be the forces before being killed, but also by medical evidence"See footnote 40.

In its January 1995 report detailing torture and deaths in custody in Jammu and Kashmir, Amnesty International described the case of Farooq Ahmad Lone, a resident of Tekipora, Lolab, Kupwara, who was arrested by members of the BSF 19th Battalion in July 1993 after leaving Srinagar in search of employment. In a report filed at Sopore police station, Farooq Ahmad Lone's uncle stated that the BSF brought his nephew back to their village on 20 July 1993, searched his house, and beat him and his father. The BSF did not find anything and returned to Sopore with Farooq Ahmad Lone.

The same day the Sopore police were told to collect Farooq Ahmad Lone's body from the BSF at Fruit Mundi, Sopore. An Assistant Superintendent of Police was deputed to investigate and collect the body, and he reported that the body had bullet wounds and "multiple injuries of torturing".

However, an Adjutant of BSF 19th Battalion, filed an FIR stating that Farooq Ahmad Lone had died while being taken on a search operation by the BSF. The report stated that one of the cars in the BSF convoy returning to Sopore had been forced to stop for repairs near Zaloora and was fired on by militants. Farooq Ahmad Lone, who was handcuffed in the back of an open van, was alleged to have been shot by militants in the exchange of fire and to have died of his injuries. According to the police, however, there was no injury to any other person and a post-mortem carried out on 22 July 1993 concluded that Farooq Ahmad Lone had been tortured before he died and that he had been shot at very close range from above. The medical officer found:

"I am of the opinion that the deceased has been put to interrogation and tortured before death and death itself has taken place due to sudden extensive bleeding from laceration of heart, lungs and other abdomen vessels due to blood injuries wounds from front of chest to left flank"

The Station House Officer declared the BSF version of events as false and initiated proceedings for a further police investigation. Proceedings were also initiated to establish a judicial inquiry under section 176 CrPC.

Although this occurred in 1993 and Amnesty International submitted this information about the findings of the police investigation to the Government of India in 1995, in its response to Amnesty International, the government gave the following response:

"On 20th July, 1993, a special operation party of Security Forces apprehended Mohd. Farooq Lone. The person was a Pak training Militant. During preliminary questioning, he voluntarily agreed to lead Security Forces for effecting recoveries in village Tekipora but nothing was recovered from the hideout. While the party was on way back, the vehicle in which the Security Forces and the accused were travelling met with an accident en route... Militants taking the advantage of the area and the accident, resorted to heavy firing upon the Security Forces. The apprehended, Mohd. Farooq Lone who was in open Gypsy received a bullet injury. He succumbed to his injuries on way back to Sopore".

The government disregarded documentary evidence and did not refer to the police investigation carried out or the initiating of a magisterial inquiry under section 176 CrPC. As far as Amnesty International is aware, no further action has been taken to investigate this incident or to bring those responsible to justice.

[ BOX 11
]
Article 6(2)
In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court .     The Committee is urged again to request information about the application of the death penalty in India, and whether there are differing practices in the different states

.     The Committee should enquire into specific steps being taken to abolish the death penalty in India and to safeguard the rights of those facing sentence of death

The number of offences carrying the death penalty in India increased in the 1980's, and offences carrying the death penalty are now found in numerous laws, including the Indian Penal Code, the Army Act, the Air Force Act, the Navy Act, the Commission of Sati (Prevention) Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Narcotics, Drugs and Psychotropic Substances Act, the Arms Act, the Explosives Act and the Inflammable Substances Act.

In addition to these statutes, the application of the death penalty for those convicted of causing death by dangerous driving is under consideration by the Government of India, according to a report from Agence France Presse quoting the transport secretary Mr Srinivas Rath on 6 January 1997.

According to the Government of India, the circumstances in which the death penalty is used is in accordance with the directive of the Supreme Court -- that it be used only in the “rarest of rare” cases. However, when questioned by the Human Rights Committee in 1991, Mr Ramaswamy responded that no information was available regarding the number of persons currently on death row (at para 47 in CCPR/C/SR.1040). Amnesty International's information indicates that at least two people were judicially executed in India during 1996 and at least 30 sentenced to death. However this information is not exhaustive, and application of the death penalty seems to vary from state to state.

Statistics on the application of the death penalty within the country continue to be unavailable.

.     The Committee is urged again to request information about the application of the death penalty in India, and whether there are differing practices in the different states

In a detailed examination of the death penalty in India in 1989, Amnesty International noted that those who are judicially executed tend to come from disadvantaged and vulnerable sectors of society. In 1995, two men from Andhra Pradesh -- Gantela Vijayavardhana Rao and Satuluri Chalapathi Rao -- were sentenced to death after setting fire to a bus while robbing passengers in 1993. Twenty-three people died. At no point when arrested or committed for trial by the local magistrate were either of the two accused offered legal aid or told of their rights (see article 14). At the time of writing petitions seeking commutation of their sentences are pending before the central government, having been referred by the President of India. Should the execution of the two men take place, this will be the first time that an execution will be carried out in the state of Andhra Pradesh for at least 17 years.

The death penalty in India is carried out by hanging. In response to a petition filed by a Supreme Court advocate challenging the rule that bodies should be left hanging for half-an-hour as "barbarous", in January 1995, the Supreme Court held that the bodies of death-row convicts would only be permitted to remain hanging till such time that the doctor declared them to be dead.

During the Fifty-third session, the Commission on Human Rights passed a resolution calling for an end to judicial executions in the worldSee footnote 41; India abstained.

.     The Committee should enquire into specific steps being taken to phase out the application of the death penalty in India and to safeguard the rights of those facing sentence of death

Article 6(5)
Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women .     Enquiries by the Committee into the intention to remove the application of the death penalty to children would be worthwhile

The Juvenile Justice Act, 1986 which provides a uniform legal framework for the treatment of children, defines a juvenile as “a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years”. This means that the availability of the death penalty in the general criminal law is applicable to any male aged 16 or over, in contravention of article 6(5) and also Article 37 of the Convention on the Rights of the Child, ratified by India in 1992. To Amnesty International's knowledge the death penalty has not been used against juveniles. However, during the hearing of India's second report under the covenant, the Government of India indicated that the discrepancy in age was currently under review. Despite this, there has been no change in the legal position.

Section 330 and 331 of the IPC and section 29 of the Indian Police Act specifically forbid the practice of torture, while section 376 of the IPC specifies the offence of rape in custody. Despite these safeguards, Amnesty International has documented widespread torture of detainees throughout India for many years. As well as the torture of political prisoners in areas of internal armed conflict, there is widespread torture of common criminal suspects. As with all the violations raised in this submission, certain communities and groups are particularly vulnerable to this practice (see article 2(1)) as documented by Amnesty International in its 1992 report Torture, rape and death in custody. In many instances, torture of detainees leads to their death in custody (see article 6(1)). A major factor contributing to the continuing practice of torture, is the impunity granted to the perpetrators (see article 2(3)).

Amnesty International welcomes the Government of India's stated commitment to eradicate torture, and the commitment to ratify the CAT (see article 2(2)). Amnesty International also welcomes interventions on the issue of torture by the NHRC and acknowledges its programmes in human rights training amongst police and security forces, and its concern for deaths in custody (see article 6(1)). However, despite these positive steps there appears to be no indication that the practice of torture is diminishing, nor are there fewer reports of deaths in custody.

Torture of both men and women has been widely reported. The torture of women, combined with the inequalities women face in general (see article 2(2) and 3) has had repercussions on the perception of the police station by women. Many women, fearing the kinds of torture, including rape, that are perpetrated in police stations, staffed predominately by men, are less inclined to approach the police for redress.

Activists in India have pointed to an increase in the torture, including rape, of women, as a punitive act, used to punish a woman's husband, other family members, or her community (see article 3 and Box 7).

Rape and sexual abuse of women has been widely reported in Jammu and Kashmir since Indian security forces began counter-insurgency operations in 1990. Women appear to have been subjected to such violations to punish them for their real or assumed sympathy with or relation to men suspected to be members of armed opposition groups, or to intimidate and humiliate the local population.

At 3am on the morning of 1 August 1996, soldiers from the Mahar Regiment of the Indian armed forces, entered the house of Ms Elangbam Ongbi Ahanjaobi Devi (37). They were undertaking a combing operation in the Takyel Khonban locality of Imphal, Manipur. Soldiers took away her husband, Mr Elangbam Ibotombi Singh, and kept her inside the house with her 8-year-old son who is a victim of polio. Two soldiers bolted the door and proceeded to strip Ahanjaobi Devi in front of her son and then raped her.

Ahanjaobi Devi was given a medical examination on 2 April 1996. Following the filing of a First Information Report, the case was referred to the District and Sessions Court, Manipur East.

The Chief Judicial Magistrate of Imphal, in his order for the prosecution of the two armed forces personnel, recommended that the soldiers should be tried in a civil court and not by a court martial. However, the Defence Ministry, in an order of 17 August 1996 ordered that they should be tried by a court martial in response to which the Chief Judicial Magistrate wrote to the Defence Minister requesting him to give the grounds for this order. It is not known what reasons were given by the Defence Ministry but their order for the case to be tried by court martial stood.

Orders were subsequently sent to Ahanjaobi Devi and the army personnel to attend the court martial which reportedly began hearing evidence at the local army camp in February 1997. On 13 April the Army announced that the proceedings would be held in open court and the media would be allowed to attend the hearings. On 5 June 1997, the court martial sentenced the two army personnel to 10 years imprisonment.

Amnesty International believes that this is a rare case in which the victim of rape reported the incident to the authorities and that due to a public outcry, action was taken against the personnel allegedly responsible. Rape in India brings with it a very real fear of stigmatisation and reprisal for women. Ahanjaobi Devi and her husband did not report the incident immediately, fearing the consequences. It was only through support and encouragement from her local community that Ahanjaobi Devi found the courage to seek justice from the authorities. It is also significant that the incident occurred in Imphal, the capital city of Manipur, where access to a hospital and police was relatively easy. Human rights activists in Manipur have told Amnesty International that they fear that many more incidents go unreported because of the remoteness of many villages in the region.

[ BOX 12
]

Reports of rape by security forces in Jammu and Kashmir continue. At around midnight on 22 April 1997, several armed forces personnel forcibly entered the house of a 32-year-old woman in the village of Wawoosa in the Rangreth district of Jammu and Kashmir. They reportedly molested her 12-year- old daughter and raped her other three daughters aged 14, 16 and 18. When another woman attempted to prevent soldiers from attacking her two daughters, she was beaten. Soldiers reportedly told her 17- year-old daughter to remove her clothes so that they could check whether she was hiding a gun. They molested her before leaving the house. A 29-year-old woman was also reportedly raped in her home in the same village. No action is known to have been taken against the alleged perpetrators but according to information received by Amnesty International, the women were reluctant to file a complaint for fear of reprisal and being stigmatised in their community.

Rape of women in the context of the ongoing armed conflict in states of the north-east is also regularly reported (see Box 12).

Police officers in India acknowledge that beatings of suspects in police stations are routine. During a visit to Bombay by Amnesty International delegates in January 1994, a senior police official referred to the use of a "good thrashing", while another said "not all police know how to behave rationally and politely". During a visit to a women's police station in Bangalore in August 1996 by Amnesty International delegates, senior police officers spoke of the perceived need to use force to obtain information about crimes in some instances. Other reasons given by police for the continuing use of torture are poor pay and employment conditions, lack of equipment and poor training in the use of investigative methods. In particular, senior officials point to the lack of awareness of basic human rights throughout the country.

In March 1997, a deputy inspector general of police in the state of West Bengal -- where a state human rights commission was established in February 1995 -- was quoted as saying:

"Crime increased over the last couple of years since the West Bengal Human Rights Commission came into being. It is difficult to extract information from hardened criminals without resorting to third-degree methods"See footnote 43

His statements appear to have been endorsed by several other police officials in the state as well as the West Bengal Home Minister (in charge of police) Mr B. Bhattacharya who reportedly called on police to "see to it that the message of human rights does not get the better of them".

Amnesty International notes that there is considerable public acceptance for the improper use of force by the police as a means of teaching criminals a lesson. Several police and government officials have referred to the pressure on police to mete out instant punishment because of the inability of the criminal justice system to deliver justice promptly and effectively. It is clear also that police are susceptible to bribery and corruption -- allowing themselves to be used for personal or political ends to act illegally against specific individuals in return for financial reward.

In December 1996, a petition was filed in the High Court of Punjab and Haryana by members of the Peoples Union for Civil Liberties (PUCL), calling for the removal of instruments of torture from police stations, Central Intelligence Agency Staff Offices, interrogation centres and police posts in the state of PunjabSee footnote 44. The instruments of torture listed included wooden rollers (used to roll over the legs of suspects with two or four policemen sitting on them thereby tearing the muscles), belts (which are tied to a handle and used to beat suspects), shackles (used to tie suspects to the wall, floor or a wooden plank while beating), ropes and chains (used for hanging suspects upside down from hooks in the ceiling) and voltage regulators (used to give electric shocks). The petition stated: "Such an order or removal from police station of these instruments of torture will go a long way to stop the prevalent third degree torture inflicted on every person brought to the police station for investigation or for any other purpose and is breeding bribery and barbarity for suspects try to escape the medieval torture by paying illegal gratification thus corrupting the fair and honest investigation". The petitioners cited recent cases of torture in which injuries had been inflicted by the use of these instruments.

In one of the cases referred to, three men -- Jarnail Singh, Ram Singh and Jagjeet Singh -- were called to the Varadhman police station in Bhatinda, Punjab, by a Sub-Inspector in connection with a marital dispute on 24 May 1996. The three men were beaten. Jarnail Singh (the husband of the woman who had made a complaint) was released after some time, but Ram Singh and Jagjeet Singh were kept there, thrown on the ground and beaten with heavy belts on their buttocks until the skin was removed. The next day they were charged under section 107/151 of the IPC and subsequently released on bail. The PUCL took up this case and sent appeals to the NHRC, and state officials in PunjabSee footnote 45. It is not known what action has been taken by the authorities to provide redress to the three men.

Disregard for arrest and detention procedures facilitates torture (see article 9(2)). While, torture and ill-treatment often occurs during the first stage of detention in police custody, Indian law is virtually silent regarding the questioning of suspects in police custody. There are no provisions concerning interrogation in the CrPC. In January 1995, the Government of India, in correspondence with Amnesty International, referred to a set of undated guidelines issued by the Ministry of Home Affairs to state governments to "curb the use of questionable and coercive methods by police during investigation". The guidelines referred to safeguards within the CrPC and further stated:

"The instructions contained in the Police Manuals of different States regarding prohibiting or restricting the use of force by the police while effecting arrest, interrogating suspects and accused or during any other stage of police inquiry or investigation, should be brought to the notice of all police officers for strict compliance and if necessary, refresher courses may be conducted for the police personnel".

However, it is not clear what status these guidelines hold within police training or disciplinary procedures, or whether there is systematic monitoring by state or central governments of the use in training and implementation of these guidelines and instructions contained in Police Manuals.

Police recording obligations do not provide for comprehensive custody records to be kept containing hour-by-hour accounts of what happens to persons in custody (medical condition on arrival, the length and time when suspects are questioned, the provision of food, the presence of lawyers or other visitors, periods of sleep, and so on).

.     In light of the widespread disregard for arrest and detention procedures which safeguard the rights of detainees, the Committee is should enquire into measures taken to ensure the systematic monitoring of the use and implementation of existing safeguards present in the criminal law, police manuals and government guidelines to protect detainees

Amnesty International also has concerns abut conditions of detention which may constitute cruel, inhuman or degrading treatment. In January 1997 the Supreme Court directed that prisoners should not be tortured in jails and said any physical force used against them constituted "cruelty". It also held that neglect of prisoners and provision of inadequate food and clothing would also constitute state violence against them. The judges gave an example of Tihar Jail in Delhi which has a capacity of 2,500 but which holds 8,500. It is interesting to note that the government, in its report to the Committee, has pointed to previous similar Supreme Court judgements setting out safeguards for detainees, which in light of recent judgements, and recent pronouncements by the NHRC, appear not to have been implemented in practice.

In December 1993, Amnesty International received information from the APCLC, documenting the condition of those awaiting trial in jails in the Chittoor district of Andhra PradeshSee footnote 46. They estimated that of a prison population of over 12,000, around 9,000 were awaiting trial, many in conditions amounting to cruel, inhuman or degrading treatment. The APCLC's report documented over- crowding, delays by police in filing chargesheets, repeated postponement of hearings, lack of availability of legal aid, poor sanitary conditions and lack of medical facilities but identified the problem of the lack of police escorts between jails and court as the major reason for the delay in trialsSee footnote 47.

As well as those awaiting trial, Amnesty International has received reports that non-criminal mentally ill men and women are held in jails throughout India. It is reported that many of these mentally ill people have been jailed on the wishes of their relatives and with the connivance of police. According to a report, between July and September 1994, over 200 non-criminal mentally ill inmates were found in jails in the state of Uttar Pradesh and dischargedSee footnote 48.

In October 1994, a human rights activist Jalil Andrabi (see Box 1), filed a petition in the High Court of Jammu and Kashmir alleging a range of human rights violations in jails, sub-jails and interrogation centres in the state. As a result of this petition, the High Court ordered that district committees consisting of judicial, police and medical authorities should make regular visits to all jails, detention centres and police lockups in the state. As far as Amnesty International is aware, visits were restricted to only one district in the state during December 1994 and have not subsequently taken place. The visits found widespread evidence of illegal detention, torture and ill-treatment.

While Amnesty International's focus has been on torture perpetrated by the security forces (including police, armed forces and paramilitary forces), the organization has received reports alleging that torture is perpetrated by other government officials, including by or with the connivance of the personnel staffing prisons, protective homes for destitute women, the mentally ill, children's homes and orphanages.

According to reports received, there is little or no access to state institutions by activists within India, and redress for the victims is therefore not available. Moreover, the restrictions on Amnesty International's access to India has meant that case reports could not be further investigated.

.     Enquiries by the Committee in to measures to protect those in state institutions would be worthwhile

.     Enquiries by the committee into use of legislation to arbitrarily detain women and children would be worthwhile

When ratifying the ICCPR in 1979, India made a declaration with respect to articles 9 and 13 of the covenant. The effect of these declarations have been to allow for human rights violations. From an analysis of the effect of the declaration, and on reading the General Comments of the Committee, Amnesty International considers the effect of the declaration is to remove the autonomous meaning of the covenant obligations under article 9.See footnote 49

In its third report to the Human Rights Committee, the Government of India has omitted any discussion of the declaration it made with respect to Article 22 of the Constitution of India when ratifying the covenant, and its effect on the application of article 9(1).

Article 22 of the Constitution of India is a justiciable fundamental right that provides protection from arrest and detention in certain cases. Article 22 (1) and (2) of the Constitution obliges the authorities to bring anyone who is arrested before a magistrate within 24 hours of arrest and to permit him/her to consult a lawyer of choice. However, Article 22 contains a number of limitations that authorise preventive or administrative detention: clause 5 of the article lays down that these rights do not apply “to any person who is arrested under any law providing for preventive detention”. Preventive detention laws also by their very nature deny the detainee the right to be tried and to be tried “within a reasonable time” as no charges are brought for which the detainee could be tried.

The Constitution (Forty-Fourth) Amendment Act, 1978 made amendments to Article 22 of the Constitution of India to strengthen the procedural safeguards for those held under preventive detention. In 1991, Professor Rosalyn Higgins asked why section 3See footnote 50 of this constitutional amendment had not been brought into force. To Amnesty International's knowledge these amendments have still to be brought into force.

.     The Committee should enquire into whether the Government of India is considering reviewing Article 22 of the Constitution which allows for preventive / administrative detention

The Government of India's report to the Human Rights Committee focuses on the application of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and its subsequent repeal in 1995. While Amnesty International welcomes that TADA -- which contained provisions contravening international human rights law -- was allowed to lapse, it notes that its provisions continue to be used retrospectively against some individuals and that hundreds remain in detention under its provisions.

Cases can still be filed under TADA under section 14 which provides that it should be applied to active trials in various courts before its expiry and to defendants tried in future in connection with offences alleged to have been committed prior to the lapsing of the Act. This means that any person can be linked to an ongoing case and be committed to trial under TADA, a practice that has been reported from Jammu and Kashmir. For instance Javed Ahmed Mir of the Jammu and Kashmir Liberation Front was remanded to judicial custody in September 1996 in connection with a charge registered against him under TADA in 1990.

An unknown number of people are still in detention in Jammu and Kashmir under TADA who were arrested earlier. According to information made available by the All Parties Hurriyat Conference, there were 1,487 persons detained under TADA in Jammu and Kashmir on 1 January 1996. In December 1996, Minister of State for Home Affairs, Maqbool Dar, in a written statement to the Upper House of Parliament stated that in Jammu and Kashmir 482 people were still detained under TADA -- 18 months after it lapsed. Amnesty International is not in a position to assess if these figures are correct but it is concerned to note reports that there are no mechanisms for review of the cases of those detained under TADA in the state.

In January 1997, the Supreme Court expressed concern about the continuing detention of individuals under TADA and its misuse to detain those who should have been charged under the ordinary criminal law. In March, in response to a petition filed by the All-India Muslim Minority Council, the Supreme Court issued notices to the central and state governments asking them to provide lists of TADA detainees who remained in detention. The petition alleged that previous Supreme Court orders concerning the release of TADA detainees had not been complied with.

.     The Committee should look into measures taken to review TADA cases and ensure that those charged under its provisions receive a fair trial

Notwithstanding the lapse of TADA, there is no lack of constitutional and legislative provisions allowing for administrative detention. The minimum guarantees delineated by article 9(1) of the covenant are suspended by a range of special legislation. In addition to Article 22 of the Constitution, the constitution is clear that preventive detention is a subject on which legislation can be madeSee footnote 51. Legislation permitting preventive detention, can be made by the central government:

"for reasons connected with defence, foreign affairs, or the security of India"See footnote 52

In addition, both the central and state governments can enact legislation permitting preventive detention:

"for reasons connected with the security of a State, maintenance of public order, or maintenance of supplies and services essential to the community"See footnote 53

Under the federal system prevailing in India, the States of the Union of India retain extensive jurisdiction over the application of the criminal law, for example in preventive detention legislation. The effect of such legislation may be to deprive people living in certain areas of the minimum guarantees safeguarded by the covenant (see articles 4(2) and 9(2)).

The Armed Forces (Special Powers) Act, currently in force in large parts of the north-east region and in Jammu and Kashmir, allows for arbitrary arrest and detention. In areas declared “disturbed”, the armed forces or paramilitary forces are given sweeping powers to “arrest without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest.” Although section 5 of the Act provides for the arrested person to be handed over to the nearest police station "with the least possible delay" and despite the fact that the courts -- and more recently the NHRC -- have issued directives that this provision should be interpreted as meaning "within 24 hours" (see article 6(1)), it is clear that members of the armed forces have routinely ignored this and held people in their custody for long periods of time before handing them over to the police.

A number of laws have been enacted by the central government that allow for preventive detention.

The National Security Act, 1980 permits administrative detention for a period of up to one year. Reports of widescale use of the NSA in Nagaland have been received by Amnesty International although, due to difficulties in access to India, the organization has not been able to verify this information. In addition to its widespread use in areas of armed conflict, reports of arrests under the Act have been received from Tamil Nadu (to detain those with alleged links to the Liberation Tigers of Tamil Eelam (LTTE)) and Orissa (where an activist, Mr Narayan Reddy, campaigning against the location of a steel plant, was detained under the Act on 23 July 1996) during 1996. In February 1997, the Tamil Nadu government warned that it would arrest anyone "supporting" the LTTE under the NSA. In May 1997, the Chief Minister of Uttar Pradesh announced that over 500 people had been detained under the NSA in the state during the previous two months. The majority of these are alleged to be "criminals". Such reports call into question the Government of India's statement made to the Working Group on enforced or involuntary disappearances in 1997 that " The National Security Act was implemented in periods of crisis in order to protect the citizens against terrorism"See footnote 54 (see Box 13).

The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) permits administrative detention for a period of up to six months.

The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 allows for administrative detention for a period of up to six months.

The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) permits administrative detention for a period of up to six months.

The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 provides for administrative detention for a period of up to six months.

Legislation in force in some states in India, that has been brought to the attention of Amnesty International.

The Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug- Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 allows for administrative detention for a period of up to twelve months.

The Assam Preventive Detention Act, 1980 provides for administrative detention for a period of up to six months.

The Bihar Control of Crimes Act, 1981 permits administrative detention for a period of up to twelve months.

The Gujarat Prevention of Anti-Social Activities Act, 1985 provides for administrative detention for a period of up to twelve months.

The Jammu and Kashmir Public Safety Act, 1978 permits administrative detention for a period of up to two years on vaguely defined grounds to prevent them "from acting in any manner prejudicial to the security of the state or the maintenance of public order". Thousands of people have been detained under this Act in Jammu and Kashmir. Provisions of the Act contravene articles 9(2) and 9(4) of the ICCPR.

The Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 provides for administrative detention for a period of up to two years.

The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985 allows for administrative detention for a period of up to twelve months.

The Maharashtra Prevention of Communal, Anti-social and other Dangerous Activities Act, 1980 provides for administrative detention for a period of up to twelve months.

The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug- Offenders Act, 1981 permits administrative detention for a period of up to six / twelve months (information provided to Amnesty International is unclear on this point).

The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 provides for administrative detention for a period of up to twelve months.

According to information received, other enactments permitting preventive / administrative detention exist, including an enactment in Uttar Pradesh, colloquially called the UP Goondas Act.

.     Amnesty International urges the Committee to seek information from the Government of India relating to the application of enactments permitting preventive / administrative detention

While these pieces of legislation unequivocally allow for preventive detention, other legal provisions exist which, in their application also allow for preventive detention. Under the general criminal law, any person detained on suspicion that s/he may commit a breach of the peace, disturb the public tranquility or do any wrongful act leading to such a breach, is obliged to demonstrate why s/he should not be called on to provide sureties (see sections 107, 116(3) and 151 of the Code of Criminal Procedure, 1973). According to information received by Amnesty International, politically motivated arrests under these provision are widespread -- reports indicate that where a magistrate has an interest in detaining a person, the sureties required to be paid may be refused, even if the person is able to provide them, thus allowing for administrative detention.

Reports indicate that these provisions are used to harass those unable to counter the actions of the police and judiciary because of their socially or economically disadvantaged position within Indian society. To Amnesty International's knowledge, details of such detentions do not appear in the statistics of the National Crime Record Bureau, as the arrest is preventive in nature. Moreover, according to the rules framed under the Delhi Police Act, 1978, certain police officers are empowered to perform the role of an Executive Magistrate. This calls into question the independence of the judiciary.See footnote 55

.     The lack of transparency in the use of provisions of the CrPC which allow for administrative detention are cause for concern, therefore enquiries into the use of these provisions by the Committee would be welcome

These provisions are used extensively to suppress protests (see articles 2, 19 and 21), and are used in a similar manner to implicate people in false charges, often leading to their arrest. Reports also indicate that the Immoral Trafficking Prevention Act, 1956 exposes prostitute women to harassment by the police and has led to the arbitrary detention of women solely on the basis of their genderSee footnote 56 and that many people, including minors, defined as mentally ill, are detained solely on the basis of their illness. Children, too, are arbitrarily detained (see article 24).

.     Enquiries by the committee into the use of legislation to arbitrarily detain women and children would be worthwhile

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him .     The Committee should enquire into measures taken to ensure meticulous adherence by police to legal provisions and guidelines designed to safeguard the right set out in article 9(2) of the covenant

Procedures for arrest by the police are laid down in sections 46-58 of the CrPC, and require the police to inform the arrested person promptly of the offence or grounds for his arrest and of the charges brought. They also require a magistrate to order a medical examination at the request of the arrested person.

While examining India's second periodic report in 1991, members of the Human Rights Committee observed that under section 8(2) of the National Security Act, the authorities may decide not to disclose the grounds on which people can be detained, in direct contravention of this article of the covenant (see articles 4(2) and 9(1)).

Amnesty International has extensively documented the way in which guarantees which do exist against arbitrary arrest and detention procedures are flouted in practice. For example, delegates from the organization who visited Bombay in January 1994 found evidence of widespread abuse of these legal safeguardsSee footnote 57 and would be interested to learn what steps have been taken by the Government of India to ensure that police officers inform detainees of their rights following arrest.

The Jammu and Kashmir Public Safety Act (PSA) obliges the authorities to inform arrested persons of the grounds for arrest within five days but clause 13(2) of the Act permits the authorities to withhold any facts for reason of “public interest”. Lawyers report that this provision has been broadly interpreted and that it is indeed common practice in the state not to inform detainees held under the Act of the ground of their detention. Amnesty International has received reports that a large number of people in Jammu and Kashmir are arbitrarily detained, either under the PSA or without reference to any law whatsoever. Reports indicate they are not brought before a tribunal at all, or are charged and tried after a prolonged period in unacknowledged and unrecorded detention of the security forces, often in places not officially designated as detention centres.

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement .     The Committee should enquire into measures taken by the Government of India to ensure that safeguards to protect detainees during arrest and detention which exist in law and in directives by the court and the NHRC are adhered to in practice

.     The Committee should request details of measures taken by the government to ensure the implementation of directives issued by the courts and the NHRC which interpret section 5 of the Armed Forces (Special Powers) Act which states that individuals arrested by the armed forces should be handed over to police "with the least possible delay" as meaning within 24 hours

.     The Committee should enquire into the presence of unofficial interrogation centres in several states in India -- notably Punjab and Jammu and Kashmir -- and measures being taken by the authorities to ensure that records are kept of all detainees held in custody and that relatives are informed of the whereabouts of detainees and have access to them

Section 57 of the CrPC requires that all arrested persons be brought before a magistrate within 24 hours of arrest. This right is safeguarded in Article 22(2) of the Constitution of India. If a detainee is brought before a magistrate, under normal legal provisions the magistrate may remand a person in police custody for up to 15 days, and thereafter in judicial custody for up to 60 or 90 days (depending on the seriousness of the alleged offence). At the end of this period the suspect has to be charged or released on bail (section 167 of the CrPC). Such remand in police custody is apparently routinely granted by magistrates for minor offenses. These periods of police custody are dangerously long. Delays in bringing detainees before a judicial authority are common and facilitate "disappearances" and other violations.

Despite the legal safeguards, such as that in section 347 of the IPC which makes "wrongful confinement to extort property, or constrain to illegal act" an offence punishable with three years' imprisonment, such practices continue to be used by law enforcement personnel with virtual impunity. Amnesty International knows of many cases in which detainees have not been brought before a magistrate within 24 hours.

Section 6 of the Armed Forces (Special Powers) Act provides that any person arrested and taken into the custody of the armed forces should be handed over to the nearest police station "with the least possible delay". In May 1996, the NHRC made a ruling on a case of the death in custody of Kheshiho Sumi. He had been arrested on 12 November by members of the Assam Rifles in Nagaland under section 5 of the Armed Forces (Special Powers) Act and had allegedlydied in their custody while being taken to identify a "militant hideout". The NHRC commented that it was the obligation of security forces to hand arrested persons over to the police and not to keep them in custody for carrying out interrogation.

.     The Committee should request details of measures taken by the government to ensure the implementation of directives issued by the courts and the NHRC which interpret section 5 of the Armed Forces (Special Powers) Act which states that individuals arrested by the armed forces should be handed over to police "with the least possible delay" as meaning within 24 hours

The practice of incommunicado detention, sometimes in unofficial detention centres, has been used in areas of India where there is internal armed conflict, notably in Punjab (see article 7) and in Jammu and Kashmir, and facilitates the practice of torture.

Safeguards spelt out in Article 22 of the Constitution do not apply to persons held under preventive detention legislation (see under article 9(1)) more commonly in force in areas of armed conflict.

Human rights activists from Jammu and Kashmir have told Amnesty International that those arrested in the state on suspicion of armed opposition activities, regularly go through a process of detention and interrogation which lasts several months. During this time there is no record made of their arrest and they are not brought before a magistrate. Finally, an FIR is lodged with the police, showing the person as having been detained a few days earlier under sections of the Jammu and Kashmir Public Safety Act or other legislation. At this point, the investigation report is presented to a magistrate who orders that the detainee be remanded to judicial custody. During this period of incommunicado detention, detainees are transferred between various security force camps, temporary and unofficial detention centres as well as "Joint Interrogation Centres" (JIC)See footnote 58. Lawyers and relatives are denied access to detainees throughout this process. Although frequent applications for access are made to the High Court and granted, they are regularly denied by the security forces.

Reports from Jammu and Kashmir also indicate that detainees are often kept in prison despite orders for their release on bail. Hundreds of petitions have been filed in the High Court of Jammu and Kashmir seeking the release of detainees following orders for their release on bail by the courts.

.     The Committee should enquire into the presence of unofficial interrogation centres in several states in India -- notably Punjab and Jammu and Kashmir -- and measures being taken by the authorities to ensure that records are kept of all detainees held in custody and that relatives are informed of the whereabouts of detainees and have access to them