Lenin Raghuvanshi
India is the world’s largest democracy with one of the best constitutions and is equipped with domestic mechanisms to fulfil the constitutional guarantees to protect human rights and dignity. However, theory is very different from practice. Internationally accepted human rights institutions are continuously reporting severe human rights violations in India. Primary concerns are torture, caste based discrimination, cases of starvation as a direct consequence of caste discrimination as well as abuse and discrimination of women. There is a widespread use of custodial torture in India. In the context of crime investigation suspects are tortured to enforce confessions. Due to the absence of an independent agency to investigate cases, complaints are often not properly proofed and perpetrators are not prosecuted and punished.
A blatant lack in human rights protection in India is the fact that the government has refused to ratify the United Nations Convention against torture. Caste based discrimination still affects the life of a high percentage of Indian population and is practiced in the educational system, in places of work, villages and towns and even in courts of justice. The refusal of the police to investigate a case of caste discrimination is common. The most heinous impacts of caste based discriminations are starvation and malnutrition. Acute poverty and cases of starvation occur especially in marginalized groups in the Indian society like minority communities, tribes and Dalits.
In response to independence movements in the north-east of India special emergency laws were enacted (e.g. The Armed Forces (Special Power) Act of 1958). The implementation of this law is limited to areas declared as ‘disturbed’ by the central government in Delhi. However similar laws are also implemented at the state level by various state governments in India. The Chhattisgarh Special Public Security Act 2006, the Maharashtra Control of Organised Crime Act 1999, the Madhya Pradesh Special Areas Security Act 2001 and the Uttar Pradesh Control of Organised Crime Bill 2007 are a few examples. These state/province-made laws have resulted in the militarisation of a large part of India. The militarisation in these areas are sponsored by the local state government by deploying ‘special armed forces’ recruited from the state police. The unfortunate target of most of these legislations is often human rights defenders. The case of Dr. Binayek Sen from Chhattisgargh is a classic example. Human Rights organisations regularly report on extra-judicial executions, rape, torture and arbitrary detention. The fact is that the militarisation of these regions threaten the development of human rights standards for the whole nation.
The Scheduled Castes, indigenous groups and other backward classes face atrocities and discrimination in all spheres of life. This is verified by data collection of 361 survivors in the project the Rehabilitation and Research centre for Torture Victims (RCT)-PVCHR on testimonial therapy, in which 89 per cent of survivors belong to Scheduled Castes, indigenous groups and other backward classes (OBC). The general impression is that Dalits and tribals not only do menial work, but that they also form the major source of churning out anti-socials and criminals. Unfortunately, a culture of silence has permeated society historically. The privileged class is conveniently convinced that they cannot be wrong. That is why one finds most of the custodial torture, violence and deaths that are committed against marginalised and deprived castes go unrecorded. Many Dalits are tortured and subjected to humiliation, like being garlanded with slippers, their faces blackened or being forced to ride an ass.
Indian police learnt demoralisation and community punishment from the caste system. When a person from an upper caste commits any crime, punishment may be meted out after a trial. However, in the case of the lower castes, the entire community is punished, mostly without any trial. This punishment is doled out by the higher castes, with implicit support from the police. It is very common to find the police unwilling to register cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. This legislation, which is meant to ensure proper investigation by a high-ranking police official within 30 days, is rarely adhered to. As a consequence, the accused leaves jail with a lesser sentence.
The caste based patriarchal feudal system continues to determine political, social, and economic life for a billion people in South Asia. The practice of “Untouchability” against Dalits, people of low status, who fall outside the caste system, was outlawed by the Indian constitution sixty years ago. The Musahars population is estimated to be between 500,000 and 700,000 in Uttar Pradesh. Exact figures are not available as they are included in the Scheduled Caste category in the state, and were not counted separately in the last census. They are estimated to be close to three million in Bihar. These landless communities, traditionally dependent on forests, were slowly pushed from these areas as forests were nationalised and a land-based economy took over. These communities without resources found themselves at the mercy of the landed classes, which exploited them as bonded labour for weeding, harvesting and clearing fields. The work of clearing the fields of rats and later using the grain from the rats’ burrows may have given them the name Musahar, musaisrat and aharisdiet, hence meaning people whose diet is made up of rats.
The Musahar community was further pushed toward pauperisation as land was divided and harvesters were introduced. With the forests out of bounds, they also lost their supplementary income from supplying leaf plates during marriages and community events.
Brahmins, Thakurs, Patels and Yadavs are the main landholders in the area. In five villages I visited in Uttar Pradesh and one in Bihar, only 25 per cent of the people from the Musahar community in two villages had land and the average land holding was not more than one or two acres. They got this land when the Land Ceiling Act was implemented in 1976. But in 75 per cent of cases, the people did not have control over their land, as the original landholders had managed to get stay orders from the court. Also, their land tended to be stony, not arable, and far from the villages.
The Musahars work as agricultural labourers for the landholding castes and mainly do weeding and harvesting work. The men earn Rs. 40 a day, and the women Rs 25 for harvesting and even less for weeding work. This is far below the minimum wage of Uttar Pradesh, which is Rs. 100. Both these jobs are seasonal and provide employment for not more than three months in a year. For the rest of the year they work as casual labourers, earning not more than Rs. 40 to Rs. 60 per day. Many work in brick kilns for Rs. 70 a day, but none of them are skilled enough to do the work of a fireman, which is highly specialised work.
In the lean agricultural season, the Musahars migrate to other parts of the country, travelling to New Delhi or Punjab, where they work as casual labourers in the construction industry, earning not more than Rs. 70 to Rs. 80 a day and barely surviving. Some of them go to Jaipur, where they are employed in small textile businesses to colour cloth and earn up to Rs. 100 per day. Subsequent laws have elaborated the rights and protections due to Dalits, tribals and minorities, but there is a strong contradiction between the laws that are supposed to govern a society and the ethics and beliefs that rule the streets. Dalits are still either landless or own very little land, often living in segregated colonies. They are forbidden by upper-caste Hindus to enter temples, to draw water from public wells and ponds, and must use separate tumblers at village tea stalls. Caste violence is rampant. In the state of Bihar, the private gangs of high-caste landlords murdered more than four hundred Dalits from 1995 to 1999. Police often refuse to pursue complaints against upper-caste Hindus accused of abusing Dalits and fail to enforce laws written to protect them. Prejudiced by their own biases or influenced by powerful village landlords and politicians, they frequently detain Dalits under the slimmest pretext.
For their part, civil society organizations treat the symptoms of caste discrimination without attacking the disease itself. There is a tendency to reduce problems originating from caste conflict to problems of poverty. Higher income, however, does not preclude discrimination. Even progressive civil society organizations aim to improve the lot of lower-caste people by finding them jobs, teaching them to read, educating their children, or seeking justice in individual cases of abuse. Each case is treated by giving out aid to the person suffering from a particular rights violation without looking at the underlying caste discrimination. The greater impact of such an approach is negligible because it seeks to achieve equality among people deemed unequal by society. A Dalit is not considered to be part of the human society, but something, which is beyond that. The Dalits perform the most menial and degrading jobs. Sometimes Dalits perform important jobs, but this is mostly not socially recognised. Dalits are seen as polluting for higher caste people. If a higher caste Hindu is touched by an untouchable or even had a Dalit’s shadow across them, they consider themselves to be polluted and have to go through a rigorous series of rituals to be cleansed.
In India there are approximately 240 million Dalits. This means that nearly 25 percent of the population is Dalit. It also means that in a country, where everybody is supposed to have equal rights and opportunities, 1 out of 5 persons is condemned to be untouchable. In general, one can say that being a Brahmin (priest caste) means that you are more privileged. This can imply having a good education and, accordingly, a more powerful position in the society. Being born as a Dalit you will be less off and because of less education you will have a lower job. In daily life, being a Dalit has a lot of consequences.
Dalits are poor, deprived and socially backward. Poor means that they do not have access to enough food, health care, housing and/or clothing. This means that their physiological and safety needs are not fulfilled. They also do not have access to education and employment. We would like to underline the injustice they face in every day life. Officially, everybody in India has the same rights and duties, but the practice is different. Social backwardness, lack of access to food, education and health care keeps them in bondage of the upper castes.
In the past one year, the PVCHR has reported several cases that depict the brutality of caste based discrimination. Of particular importance is the case of Suresh Musahar, a primary school student who was facing discrimination based on caste not only from his classmates, but also from his teacher. Suresh Mushar is the son of Mr. Sajjan Musahar and a resident of Ayer Musahar ghetto, under the jurisdiction of Cholapur police station in Haranhuwa block of Varanasi district. Suresh is 8 years old and is studying in class two at the Shivrampur Government Primary School.
On 2 August 2007 Suresh complained to his class teacher, Ms. Sangeeta Agarwal, regarding his missing school bag. The bag could not be found that day. On 4 August 2007 Sangeeta returned the bag to Suresh. While returning the bag, the teacher asked why Suresh has to be concerned about the missing bag and books since the members of his community will invariably end up rearing cattle and working for the upper caste. Saying this, without any further provocation the teacher started caning Suresh. Suresh’s mother who came to know about the incident complained to a local human rights group seeking intervention. Mr. Vijay Bharati, an associate of the People’s Vigilance Committee on Human Rights intervened. Bharati organised a meeting of the parents from the Musahar community whose children are attending the government school along with Suresh. In the meeting the parents and the children complained that most of the Musahar children were treated similarly by Sangeeta as well as the other staff in the school. The children also complained that the teacher discriminated them due to their lower caste and had instructed them not to touch her thereby ‘polluting’ her. For decades Indians have been separated and divided according to the caste hierarchy. In spite of several laws and even Constitutional guarantees India remains largely divided along the caste lines.
Caste based discrimination is omnipresent in India. It is reflected across the societal spectrum. It is so evident that even a complete stranger could identify the inequalities practised openly in the society based on the caste. Caste based discrimination is reflected in private and public life. Caste is the final denominator for everything in India. It has its influence in politics, administration and even economic growth of the country. To control the Dalits, the age-old Brahmin policy of food deprivation and bonded labour is brutally enforced. Though bonded labour is prohibited by the Bonded Labour System (Abolition) Act 1976, the law has little meaning for the Dalits. They are forced to do bone-breaking work in farms, quarries and kilns of the upper caste community. Food deprivation and poverty eradication, though sought to be prevented through several central and state government programmes, like rationed distribution of food grains and oils through the Public Food Distribution System (PDS) shops and implementation of programmes, like the Andyodaya and Annapoorna schemes, along with the employment generating programmes, like the Rozgar Yogna and MNREGA, never percolated into the Dalit community for their benefit.
Dalits are deprived from accessing these programmes by the upper caste who corrupt the implementing element of these programmes. All this is possible only because of a corrupt and fallen criminal justice delivery mechanism in Uttar Pradesh. The backbone of the criminal justice system is the policing in the state. Policing in Uttar Pradesh suffer from the impunity the officers enjoy for their corrupt practices. Custodial torture and extra judicial killing is widely used to terrorise those who challenge the police in Uttar Pradesh. Even well-known human rights groups are not immune to this terror.
PVCHR and their activists, based in Varanasi, who are fighting against caste based discrimination in the state, are targeted by the local police and the corrupt officials within the administration. Several threats have been made against the life of activists associated with the PVCHR. Thus far, instances have been limited to harassment by the local police and death threats sent out by the upper caste feudal mind-set whenever they found their position were challenged. Illegal dealing of rationed articles is dominated by corrupt licensees, mostly from the upper caste, who had obtained licenses to run the PDS shops in villages. Some of them have been renewing their license for decades in spite of specific complaints filed against these licensees. The district administrations, the license issuing authority on behalf of the state government, has thus far ignored these complaints and failed to properly investigate them. Even in cases where an investigation was ordered, it was breached by corrupt police officers, who rallied behind the upper caste under the influence of their money. When mere complaining and campaigning was found ineffective matters were taken to the local courts for intervention. The local courts, which are equally corrupt and nepotic, failed to intervene. Some of the judges in the lower judiciary and a few in the higher judiciary of the state are so prejudiced with their caste sentiments that any issue concerning the lower caste is thrown out of the court without any consideration.
The UN High Commissioner for Human Rights has expressed an urgent need to end caste-based discrimination. In an interview with The Nation on 26 October 2009, Navi Pillay, a former judge in South Africa, mentioned the need to create a new international convention that includes the explicit recognition of caste-based discrimination as a human rights violation. “Slavery and apartheid could be removed, so now [caste] can be removed through an international expression of outrage,” she said in the interview. Recently, Pillay was visited by a group of women who gave her a brick from a latrine where Dalits are forced to clean toilets with their bare hands. There are approximately 260 million “untouchables” or “Dalits” (broken people) throughout the world today, many of whom continue to deal with discrimination. The issue of caste has been discussed for over a hundred years. Pillay says action is long overdue.
Perhaps the most disturbing aspect of the entire movement is that many laws do exist to criminalise caste-based discrimination in theory, protecting Dalits from violence and exploitation. Affirmative action programmes exist to guarantee Dalits a presence in the government and access to education. However, strong discrimination continues to be practised. This paradox is perhaps illustrated best in India, where the vast majority of Dalits live.
Dalits have faced death from upper caste individuals for entering a Brahmin temple, or lynching for inter-caste marriage. In some parts of Northern India, Dalits must vote in segregated polling stations. India’s ban on caste-based discrimination will not be effective unless the government makes it a priority to enforce it, said Paul Divakar, general secretary of the NCDHR in India. Violence and other human rights abuses against Dalits are still committed with impunity. The government should work with the international community to address this problem. The concept of caste continues to centre as a heated debate in international circles. For Pillay, caste issues have been distorted by governments, such as India, who have successfully argued in UN conferences that existing policies, conventions, and treaties against human rights abuses do not apply. In general, lower-caste individuals are confined to menial, low-income employment while deprived of land and credit. Many are doomed to indebtedness and labour bondage, which is a form of slavery that continues generation after generation. Dalit rights tend to fall under the purview of the UN’s guidelines for the effective elimination of discrimination based on work and descent in various inter-governmental discussions on caste.
Due to the obfuscation of governments and the interpretative flux of inter-governmental bodies, Pillay suggests creating a new international convention explicitly recognising caste based discrimination as a human rights violation. Through such recognition, Pillay hopes to incite the type of international pressure used against apartheid.
The Prime Minister of India in his foreword in the ‘Report to The People’ dated 22 May 2007, claimed: “In this 60th year of independence, the country should have the satisfaction of recording for the fifth year in a succession a rate of economic growth of over 8.5 percent.” What is not sure however is whether the estimated more than 200 million Indians, who are presently suffering from malnourishment, and the many more million, who have suffered malnutrition during past decades, will be satisfied with this growth. India’s overwhelming population is often given as an excuse to justify poverty and starvation. This theory is applicable only if the State itself is poor and has no means to procure enough food for its people. India is not poor, even though 70 percent of Indians are poor. India’s projected defence budget for 2007~08 is 24 billion USD and it plans to spend further on its weapons upgrade programme. Defence spending of such proportions in a country where a section of the population equivalent to two-thirds the size of that of the United States is undernourished or suffering from malnourishment, is difficult to stomach. The United Nations Special Rapporteur on the Right to Food has highlighted this contradiction of priorities in his report following his mission to India in 2005.
India is a country of contradictions. A country that has a projected 9 percent development index, performs worse than some Sub-Saharan African countries with regards to addressing starvation and malnourishment within its territory. The National Minimum Programme promulgated by the Government of India in 2004 speaks about the Rural Employment Guarantee programme, which is also reflected in India’s voluntary pledge to the United Nations Human Rights Council. However, millions of Indians in rural villages are not benefiting from this programme and remain unemployed. The programme is not properly implemented and in places where there are possibilities of implementation and thus employment, recruitment to the programme is based on caste bias and nepotism.
Poverty and resultant starvation in India is not limited to the lower caste, although they suffer the most. The lower caste forms only about 20 percent of the Indian population, whereas starvation and malnourishment affect about 53 percent of its entire population. Starvation and malnourishment are the direct result of the failing administrative system in India. A malfunctioning administrative system has a direct bearing upon the living conditions of the poor. For example, for the distribution of food to a targeted population, the government has established the Public Food Distribution System (PDS). However, the management of this system suffers from corruption—particularly black marketing, caste prejudices and the utter failure of various local governments.
Torture is not a crime in India. To convict a law enforcement office for torture, the act has to qualify all the requirements like any other crimes in the Indian Penal Code, 1890. To prove a crime, meeting all standards, to be punished under the Indian Penal Code, is difficult because of the absence of independent investigating agencies in India. The absence of an independent agency to investigate cases of custodial torture is exploited by the offenders since they know that even if a complaint is made regarding torture it would not be properly investigated.
The widespread use of custodial torture has taken its toll upon the law enforcement agencies in India and is reflected in the overall state of rule of law in India. As of today, the ordinary people have isolated themselves from the law enforcement agencies. The people do not trust the law enforcement agencies. The use of torture has also considerably reduced the morale of the law enforcement agencies. For example, cases that are brought to a court based exclusively on the evidence gathered by use of torture often results in acquittal. The loss of morale of the law enforcement agencies is exploited by corrupt elements in the society who would like to use the local police as their militia, paid from the state exchequer. This isolation of the law enforcement agencies from the ordinary people has resulted in increasing number of incidents where people take the law into their own hands. In the past few years incidents of violence committed in the name of ‘justice’ are increasingly reported in India, of which the highest number was reported in 2007. These are acts of violence, which are resorted to by either the state agents or the people for executing what they think is justice. Such violence indicates that the public perception of justice in India is rapidly changing—changing for the worse. The people’s perception of justice depends upon how the justice dispensation mechanism in a country functions. In theory, India has a reasonably good legislative framework within which laws are drafted, debated and implemented. But in practice the drafting and debating of laws remain mostly outside the scope of any public discourse. The acts of the legislature are often dominated by caste, religious and partisan political sentiments as opposed to being for the welfare and betterment of the people.
The culture of impunity is the biggest threat to the rule of law in India. Victims are often threatened to make submissions or give statements before the magistrate so that the case weakens and nothing happens to the perpetrator. If at all the department or the court decides to take cognisance of the statement of the victim and orders an inquiry against the accused police personnel, it directs the superior officer to undertake an investigation. It does this knowing full well that both work in the same office and the higher officer is familiar with the movements and intentions of his subordinates. In the absence of evidence or weak evidence on cases like custodial torture, encounter or disappearances, the court relies more on the police report, resulting in acquittal in most instances.
The insensitivity of the judiciary and human rights institutions make them extremely culpable in contributing to the impunity that persists and aggravates the problem. Evidence indicates that the poor are increasingly being criminalised. The limitation of the enforceable power of the National Human Rights Commission, India, has been a matter of concern for everyone. Legal impunity is embedded in provisions like Sections 197 and 132 of the Indian Criminal Procedure Code (CrPC) as well as Section 6 of the Armed Forces (Special Powers) Act (AFSPA). In fact, almost every section of the CrPC provides some kind of impunity. For example, Section 46 empowers the police to shoot to kill any accused charged with a crime punishable by death if that accused person attempts to escape from police custody. The police forces of Andhra Pradesh and Uttar Pradesh have made extensive use of this section to cover up fake encounters, killing hundreds of detainees. Experience shows that the government habitually denies sanction for prosecution of members of the police and security forces whenever any private criminal complaint is filed against them. In many cases, the police routinely refuse to record the First Information Report (FIR) against misdeeds of police personnel. In cases where FIRs are lodged following sustained campaigns by the families of victims and human rights defenders, these are never properly investigated. Human rights watchdogs and critical observers agree that the Indian criminal justice system seems to be dealing with two broad categories of people: those who live above the law and those who are absolutely crushed by it.
Prisoners are one of the weakest constituencies in the society. They have no voting rights, have very limited access to the outside world, and are under the complete control of the prison authority. They cannot speak with the press, write letters or speak with their families without the permission and/or censorship by the prison department. In India, the majority of these voiceless people remain in prison pending trial or conviction. Recent statistics reveal that over 65 percent of the prisoners are under-trial and they may continue to be held in overcrowded prisons for years. The occupancy in prisons exceeds by 41.4 percent over and above its sanctioned capacity. A huge majority of these under-trial prisoners are poor. They are denied bail for want of monetary security. And trials take years. Often, they have no lawyers, live in pathetic conditions, do not have access to adequate medical care, and are likely to be tortured or exploited. Many times, the legal aid lawyers and prison officials are also unaware of the existing legal standards. The system fails the prisoners at every turn and often times the agencies blame each other for non-performance and unaccountability.
Under Indian law, there is no enforceable right to rehabilitation for torture survivors. Private medical and psychological support is offered by only a few rehabilitation centers and torture survivors cannot access the public health sector, due to lack of specialized rehabilitation and rejection by the health care providers. In most cases, torture victims, who have approached PVCHR for assistance, have never been referred for any kind of treatment. In the context of police impunity, and the prisoner has limited access to justice, and limited rehabilitation services, PVCHR with RCT identified a need for a psycho-legal approach. The two organizations have so far partnered on three pilot projects on testimonial therapy. Preliminary experiences show that testimony has a potential for creating new dynamics in the justice process; converting the survivor’s private pain into a new political voice to challenge impunity, contribute to the establishment of the rule of law and people-centred advocacy. The pain and the agony expressed in the testimonies help to convince the judiciary and human rights institutions about the injustice committed against the plaintiff. It was easier to elicit a coherent story from survivors and it seemed to release their pain during narration of self-suffering of being tortured.
On the specific recommendation by the UN Human Rights Council during examination of India, human rights records under the Universal Periodic Review in April, 2008 to expedite ratification of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the government of India stated that “the ratification of the Convention against Torture is being processed.” While the inter-ministerial group has made no public recommendations, the ministry of external Affairs has drafted the Prevention of Torture Bill, 2008 for the ratification of the UNCAT. The Prevention of Torture Bill, 2008 as drafted by the Government of India states in the preamble that the law is being enacted “to ratify the Convention and to provide for more effective implementation.” While recognition of torture as a criminal offence is welcome, the Bill contains ONLY three operative paragraphs relating to (1) definition of torture, (2) punishment for torture and (3) limitations for cognisance of offences.
It excludes many of the key provisions of the UNCAT. India needs to ratify UNCAT and enact domestic laws on torture, unlike its present draft. But what is more important, and should be taken up on a priority basis, is an inclusive, healthy debate on reforming the security forces. The Supreme Court directed that police reform programmes be given priority. And all this should happen keeping the victim, already abused by the protector (security agencies), neglected by the justice giver (judiciary) and abandoned by the caregivers (family and community) at the centre.
