Masooda Parveen's review petition dismissed

Dear Friends,

It is with regret that I inform you that the review petition which was filed by Masooda Parveen against the judgment dated 2.5.2007 passed by the Supreme Court came up before Justices Dalaveer Bhandari and H.S. Bedi today (11/10/07), and has been dismissed.

I may remind you that Masooda Parveen had filed a writ petition under Article 32 and 21 for compensation for the death of her husband, an advocate, in the custody of 17 Jat Regiment in Pulwama, Kashmir, as far back as February 1998. While initially the petition was for compensation and for compassionate employment to the wife, later its scope had been expanded to get the court to lay down some safeguards from the army that enjoys "special powers" in J&K under the J&K Armed Forces Special Powers Act. It was hoped by us that the Supreme Court would use this opportunity to apply the safeguards in the Naga People's Movement for Human Rights case to J&K.

In the judgment dated 2.5.2007 handed down after nearly 9 years of its filing (reported in 2007(6) SCALE 447; copy enclosed) the Supreme Court has inexplicably overlooked crucial facts which pointed to glaring inconsistencies and contradictions in the version of 'accidental death' put forward by the state. It also ignored the fact that despite the closure report in an investigation under s. 174 CrPC being rejected by the District Magistrate, Pulwama, and Rule Nisi being issued by the Supreme Court, the local administration "lost" the inquest file and all the critical documentation contained in it.

In the judgment, the Supreme Court has unquestioningly accepted the army's bald version that the deceased had been a 'militant', when not a scrap of evidence exists for such a serious allegation. It has further observed that the petitioner has not been able to show her version of events was true. Placing the burden of proof squarely on the petitioner, the judgment contradicts the body of existing law where the burden lies on the state to show how the death occurred in incidents of custodial death. Such burden must for obvious reasons be even higher where death occurs in Army custody in a disturbed area where the Armed forces are, theoretically, operating under the supervision of the 'civil authorities'.

A further disturbing aspect of the judgment is that it proceeds to carve out an exception to directions made by a 5 judge Constitution Bench in the NPMHR judgment ((1998) 2 SCC 109). According to that judgment, the Army is bound by the Constitution of India as well as by the provisions of the Armed Forces Special Powers Act to produce any person arrested by it before the nearest police station with "least possible delay". In that judgment the Supreme Court had also observed that "least possible delay" could not exceed 2-3 hours, since after being handed over at the nearest police station, the arrestee has to be produced before the Magistrate within 24 hours of arrest in accordance with Article 22 of the Constitution.

However, the judgment in Masooda Parveen's case chose to ignore evidence before it that the deceased was in illegal Army custody for at least 30 hours before his death, and instead observes:

" We are also not un-mindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in the leakage of information which would frustrate the very purpose of the army action."

The Government of India had attempted to get just such an exemption in the petition seeking clarification of the NPMHR judgment, and this had been negatived by a 5 judge bench of the Supreme Court by order dated 7.8.2001.

The petitioner widow who has in the intervening years raised her children single-handedly and also been under surveillance by the state, is heartbroken to get this verdict that labels her husband a militant, and therefore by extension herself and her children as well.

But the implications of the judgment go far beyond the private heartbreak of one family. This is probably the first judgment of the Supreme Court interpreting the provisions of the Jammu and Kashmir Armed Forces Special Powers Act. Not only has the Supreme Court lost an opportunity to hold the Armed forces accountable for increasingly heinous excesses against the Kashmiri people, the Supreme Court has also sent out a message virtually endorsing the impunity of the Armed Forces for such acts.

All this, and more, had been placed before the Supreme Court in the Review Petition filed by the petitioner-widow in July 2007 (copy attached), in the hope that the Court would recognise the impact of the judgment dated 2.5.2007 on the petitioner, as well as its larger implications for the people of Kashmir, and therefore reverse it. The Supreme Court has, however, chosen today to dismiss the review petition filed by the petitioner.

With regards,

Shomona Khanna

Advocate

The Fact that is 'Torture'

Yesterday was World Torture Day. While there is no need to explain the prevalence of torture in our country, I’d like to use this opportunity to show the attitude of the Courts towards this grave violation. This I’d do by critiquing the case of Masooda Parveen v. Union of India, the judgment which was announced in May this year.

The deceased and husband of the petitioner, Ghulam Mohi-uddin Regoo was one day taken by 17 Jat Regiment soldiers an brutally tortured. The reason that the wife and most witnesses gave was because he had refuse to pay an extortion fee to the soldiers. The petitioner alleged that her husband was tortured to death by the army and later his body was returned in pieces to her. The explanation given by the Army was that he was leading them to a hideout which was blown up the moment he reached there with the soldiers. Surprisingly no soldier was injured by the blast and the only fatality was Ghulam’s death. Ghulam’s wife, Masooda filed a petition before the Court demanding compensation and a job on “compassionate grounds.”

The Army said that Ghulam was a militant so no ordinary law would apply to them in this regard. They went on further to say that since Ghulam was a militant, Masooda would have to suffer for her husband’s wrongdoing. The Army’s rationale was readily accepted by the Supreme Court which stated that since there is ‘no evidence to say that he was not a militant, so he is presumed one’. It indirectly stated that if the Army identifies a person as a militant he is one until proved otherwise. There was no evidence produced by the Army to support this notion and nothing on record about Ghulam’s mode of death. From what I understand, in a petition for habeas corpus, it is upon the state to show that death was incidental and it is all the more onerous on the state to show so. It further stated,

“We are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action.”

So the Court has violated the ruling in Naga People’s Movement v. Union of India, and given an upper hand to the Army to indulge in such nefarious activities. These are troubled times for the judiciary. An organ that is supposed to be a guardian of human rights and injustices disappoints us by relying on irrational convictions. The support of the Army by the judiciary is unprecedented as is evident in this case. The judicial sanction of torture in the name of national security is a pandora’s box in its true sense. Absolute power corrupts, its usage without any checks is the cornerstone of evil. This time Ghulam was picked up and killed, tomorrow its going to be someone else. The matter could have also been simply resolved by given compensation on compassionate grounds and not accepting guilt as asked for by Masooda. But the Army argued otherwise and now a bad precedent has been set. So we should now be prepared for more people to be branded as terrorists by the Army.

This case did not get the publicity that a situation like Jessica Lal got. It is a reflection of what we Indians think of such instances. ‘We don’t care is someone is blown up into pieces. We would like a rapist to get a death sentence. Kashmiris are likely to be terrorists so they deserve it.”

Such notions are bad publicity. Human rights concerns are non existent in a majority of Indians. For them, torture is good if a person is caught. But what if the person might not be a terrorist? I used to admire Dershowitz a lot. Lately he stated something to the effect that torture is good if it produced desired results (don’t know for sure). I am losing faith in the system. There is injustice everywhere. Right from my college to international issues. To what extent can one stand all this is the question? Do I just sit and watch or is there something I can do?

Amnesty's Letter to Bush

I just got hold of an interesting document.
Below is Amnesty International's letter to George Bush ahead of his visit to India is 2006. A good read.

USA: Letter from Amnesty International to President Bush on His Upcoming Visit to India

The Honorable George W. Bush
President of the United States
The White House
Washington, DC 20500

Dear Mr. President,

Amnesty International welcomes your visit to India during the first week of March. Your visit represents a rare opportunity for you to directly communicate your concerns about human rights in India. While you discuss economic cooperation and civilian nuclear partnership with the Indian Prime Minister, it is vital that you also raise human rights concerns affecting large numbers of Indian citizens. Amnesty International strongly urges you to include Indian human rights concerns in your joint communiqué with the Indian Prime minister Manmohan Singh.

Even though India is the world’s largest democracy, there remain serious and disturbing human rights practices, including “disappearances”, rape, extrajudicial executions, deaths in police and military custody, torture, cruel, inhuman, and degrading treatment, arbitrary arrests, dowry deaths, and numerous other human rights abuses.

The Government of India not only fails to prevent these abuses, but also shelters members of security forces from facing justice. People living in several of the northeastern states of India, Kashmir, religious minorities, those belonging to the lowest social order called “dalits”, and indigenous communities called “adivasis” face the brunt of these abuses. Other socially and economically marginalized groups including women face discrimination at the hands of the police and criminal justice system. While some laws were passed to address some of the human rights abuses; serious concerns remain about the implementation of such laws.

There are numerous human rights violations taking place in India. Following are some of the abuses and concerns:

Massacre of Sikhs: Over three thousand Sikhs were massacred when the governing Congress Party incited mob violence targeting Sikh civilians in reaction to the 1984 assassination of Prime Minister Indira Gandhi by her Sikh bodyguards. Scores of women were gang raped and some were burnt alive. After two decades, a judicial commission concluded that members of the governing Congress party were involved. Several belonging to the same party were cleared of charges, which led to criticism from several civil society and Sikh organizations and opposition political parties. Twenty years have passed since the massacre, but only a few have been brought to justice for this mass killing.

Massacre of Muslims: In 2002, over 2,000 Muslims were massacred in Gujarat as a reaction to a train fire that killed 59 Hindus. This train fire was blamed on Muslims. Hindu mobs allegedly incited by state Bharatiya Janata Party members went on a killing spree targeting Muslims. Several hundred Muslim women and girls were gang raped and some were burnt alive. Pregnant women and children were also targeted. After three years, very few individuals have been brought to justice.

Bhopal tragedy: Several thousand people have died and many more continue to die from a 1984 gas leak at Union Carbide’s pesticide plant in Bhopal in 1984. Twenty years have passed since the leak occurred, but the plant site has not been cleaned up and toxic wastes continue to pollute the environment and ground water. Tens of thousands continue to live with debilitating illnesses. Despite numerous efforts, survivors continue to be denied adequate compensation, medical help, rehabilitation, and justice.

Armed Forces (Special Powers) Act of 1958: The Armed Forces (Special Powers) Act of 1958 has remained in effect in “disturbed areas,” including Kashmir and large parts of the northeastern states of India for over forty years. This act is a major contributor to massive human rights abuses in these areas of India. This law protects Indian Security forces from prosecution by requiring permission to prosecute from India’s Central Government--permission which is rarely given. As a result, security forces often take the law into their own hands and commit massive human rights abuses against the civilians. This law has facilitated grave human rights abuses, including “disappearances,” rapes, extrajudicial executions, and deaths resulting from torture. This law also gives the security forces power to shoot to kill anyone even without any threat to the lives of security forces.

Northeastern States: One of the areas “hidden” from international attention is the region of northeast India. A reign of terror is prevailing in this area, which is largely facilitated by the above mentioned Armed Forces (Special Powers) Act of 1958. Security forces kill, rape, “disappear” and commit other gross human rights abuses with virtual impunity. Amnesty International has never been permitted to visit the northeastern states of India.

Kashmir: The Indian side of Kashmir is another area where Indian Security forces commit massive human rights abuses with impunity. This is once again facilitated by the Armed Forces (Special Powers) Act of 1958 and other similar laws. Indian Security forces “disappear,” rape, extra-judicially execute, torture people to death, and commit other severe human rights abuses. Authorities arbitrarily detain people and use preventive detention to stifle political dissent. The civilian population of Kashmir has paid a high price for the conflict. Thousands have disappeared and the total casualties since 1989 are believed to be around 38,000.

One example of impunity in Kashmir is that of a human rights lawyer and activist Jalil Andrabi. Nine years after the “disappearance” and killing of Jalil Andrabi, an army major identified as responsible by a special investigation team had still not been brought to justice. Army representatives asserted that they have not been able to locate him. Amnesty International has never been permitted to visit Kashmir.

Abuses against “Dalits”: India’s caste system involves a social hierarchy and individuals are considered to be born into a particular caste and remain in the caste throughout their lives. Outside these caste categories are the “untouchables,” now commonly known as “dalits”, whose occupations – sweepers, tanners, sanitation workers, etc – were viewed as “polluting” the community. Nearly 200 million people in India belong to this category and this system has been called India’s “hidden apartheid.” Abuses against “dalits” are numerous and take many different forms including: parading of naked dalit women through the streets, socioeconomic discrimination, killings, arson-burning of dalit communities, gang rape, bonded labor, denial of land rights, and many more. The police and the criminal justice system also discriminate against dalits. Though important strides have been made, much remains to be done.

Abuses against Adivasis: The indigenous communities called adivasis face immense pressure from dam and mining development projects and settlements. Adivasis face socioeconomic discrimination as well as discrimination by the police and the criminal justice system. For example, recently police used excessive force during a protest against the construction of a steel plant on traditional adivasi land in the state of Orissa. At least twelve adivasis, including three women and a twelve year old boy, were reportedly killed in the police firing.

Abortion of female fetuses: Traditional preference for boys has led to thousands of female fetuses being aborted despite the prohibition of pre-natal sex discrimination for the purpose of the abortion of female fetuses. In May, the Health Minister stated that there had not been a single conviction for breaking the ban since it was introduced eight years earlier.

Mr. President, Amnesty International urges you to secure a meaningful commitment from Prime Minister Manmohan Singh to improve India’s human rights situation. It is essential that human rights be treated as an important issue like trade and civilian nuclear partnership.

We urge you to include human rights as part of your overall discussion with the Prime Minister and that you demand the following:

1) Abolition of the Armed Forces (Special Powers) Act of 1958 and other similar laws.
2) Immediate release of those held under such laws.
3) That those involved in the massacres of Sikhs and Muslims be brought to justice.
4) Immediate resolution to the Jalil Andrabi case.
5) Adequate compensation, medical help, rehabilitation, and justice to those who were affected by the Bhopal tragedy, including full cooperation to bring Dow Chemical in compliance with their responsibility.
6) An immediate investigation into the abuses happening in northeastern India.
7) That Amnesty International and other human rights organizations be allowed access to Kashmir and to all northeastern states.

Mr. President, we urge you not to miss this opportunity to speak for those whose rights have been violated in India. They need your help.

Sincerely,

William Schulz
Executive Director