Political scientists have critically analyzed that how States turned dictatorial and expeditiously abridged rule of law in the name of War of Terror. The corollary of West’s neo civilizational mission after September 11 was increased State’s power turning concept of Welfare State in democracy to Police State. Studies suggest that States abuses constitutional contours in pursuit of crusade against ‘projected vices’ under the veneer of sovereign security and maintenance of law and order.

Across the globe, the new political trend is the popular ascension of right-wing governments and populist polity at the exorbitant expense of democracy and integrity. Bogus concerns of national security are generously cited to trample upon civil liberties and procedure of Constitution is often circumvented to suit State’s ulterior motives. Abu Ghraib prison of America thus took birth to hunt down ‘perceived threats to State’. Gross Human rights violations are passed off as minor ‘adjustments’ in weeding out ‘fifth columns’.

Too much arbitrary power at the disposal of State does not augur well for a vibrant democracy. State is in fact minor indispensable evil vis-à-vis civil liberties and it assumes ghastly paternal figure when endowed with unbridled power without adequate checks and brakes. To execute summary justice with crass disdain to procedural fairness by a State is a guarantee to the emergence of powerful State.

‘Super States’ in India

Recent few incidences arouse the graver suspicion of whether India is in race to join the league of ‘Super States’. Populism got its crowning moment with Modi forming government in 2014. Aversion to ‘institutions’ and rush of the State to become both judge and executioner are the signature identities of populism. Incessant onslaughts on federalism and legislation without caring due process of law are pertinent pointers of this alarming trend.

But some states have shown advanced ill omens of ‘Super State’. Uttar Pradesh government’s vindictive crusades against ‘accused mafia gangs’ and anti-CAA protests exhumed the dormant abuse of the Constitution and procedures of natural justice. Police were conceded with sweeping immunity to use violence against the ‘accused’ without following the statutes of the book. The State became aggressive and executed summary execution.

UP government dismissed the anti-CAA protests as foul conspiracy hatched by ‘fringe elements’ to instigate revulsion against the government. Government was erroneously equated with State. Name-Shaming, compulsory forfeiting of property of ‘alleged miscreants’ and slapping of hefty fines were cheered by as bold steps. But the fact that State was wandering into extra-judicial territory with callous contempt of laws was conveniently ignored.

BJP government in Karnataka barring non-Hindu vendors from temple premises is also an example of State’s aggression of constitutional boundaries. Recent abrupt and arbitrary actions of Madhya Pradesh government to demolish illegal structures of ‘alleged accomplices’ in communal clashes following Ram Navami to ‘strike fear’ in the minds of perpetrators cannot be dismissed easily. Recurrence of such events begs serious discussion around the increasing trend of States infringing rights of people for judicial justice.

Extra-Constitutionalism is alien to Indian justice system

According to Indian laws, one is perceived as innocent until proved guilty. Only Judiciary can pronounce someone as guilty and award punishment. State can never replace the holy institution of Judiciary. Judicial trial is fundamental right and no State can contravene this sacrosanct right. Supreme Court has rebuked UP government for arbitrarily punishing anti-CAA protesters. Article 21 that stipulated ‘procedure established by law’ also includes ‘due process of law’. This has been reiterated by various courts. ‘Due Process of Law’ is a doctrine that not only checks if there is a law to deprive the life and personal liberty of a person but also ensures that the law is made fair and just.

These arbitrary actions are justified as ‘necessary tools’ to shield the peace in state. In the jostle to placate core voter base, civil liberties and human rights of minorities and marginalised sections are being trampled upon. Civil societies and judiciary have enormous onus not to fall prey to increasing authoritarian tendencies of States.

It is relevant to produce Supreme Court’s verdict rescinding Salwa Judum in 2011. “This case represents a yawning gap between the promise of principled exercise of power in a constitutional democracy and the reality of the situation in Chhattisgarh, where the state of Chhattisgarh, claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in a manner, and by adopting the same modes, as done by Maoist/Naxalite extremists,” said the apex court.

*The author is a journalism student at Indian Institute of Mass Communication, Delhi currently on internship with SabrangIndia.

Related:

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Madhya Pradesh’s Home Minister blames Muslims for Ram Navami day violence, justifies mass demolitions

Communal confrontations mar Ram Navami celebrations in five states

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The Forum for Human Rights in Jammu and Kashmir, has recently released a comprehensive report on the many human rights violations that continue, in the Union Territory. The forum comprises concerned citizens from across the country, who believe that, in the prevailing situation in J&K there is a need for an independent initiative to keep track of, record and share the continuing human rights violations. 

This report has been compiled after studying citizens’ replies to questionnaires sent by the Forum, government sources, media reportage, as well as reports and evidence collected by NGOs, fact- finding reports, and through public interest writ petitions. The forum also cites information received from industry bodies such as the Kashmir Chamber of Commerce and Industry. The report was made in the midst of the nationwide Covid-19 lockdown. 

The forum’s members are distinguished citizens who are world renowned in their respective fields. The forum is co-chaired by: Justice Madan B. Lokur, former judge of the Supreme Court of India, and  Radha Kumar, former member, Group of Interlocutors for Jammu and Kashmir. The members are: Justice Ruma Pal, former judge of the Supreme Court of India, 

Justice AP Shah, former Chief Justice of the Madras, and Delhi, High Courts, Justice Bilal Nazki, former Chief Justice of the Orissa High Court, Justice Hasnain Masoodi, former judge of the Jammu and Kashmir High Court, Justice Anjana Prakash, former judge of the Patna High Court, Gopal Pillai, former Home Secretary, Government of India, Nirupama Rao, former Foreign Secretary, Government of India, Probir Sen, former Secretary-General, National Human Rights Commission, Amitabha Pande, former Secretary, Inter-State Council, Government of India, Moosa Raza, former Chief Secretary, Government of Jammu and Kashmir, Hindal Haidar Tyabji, former Chief Secretary, Government of Jammu and Kashmir, Shantha Sinha, former chairperson, National Commission for the Protection of Child Rights, Lieutenant-General H S Panag (retd), Major-General Ashok Mehta (retd), Air Vice-Marshal Kapil Kak (retd), RD Sharma, former Vice Chancellor of Jammu University, Enakshi Ganguly, Co-founder and former Co-director, HAQ Centre for Child Rights, Ramachandra Guha, writer and historian, and Anand Sahay, columnist. 

The report’s executive summary recalls the total lockdown announced in J&K on August 4, 2019. Around “38,000 additional troops were flown in to enforce the lockdown,” markets, educational institutions and all public spaces were closed, internet and telephone services were snapped, curfew was declared, public assembly was prohibited under Section 144 of the Code of Criminal Procedure, 1973 (CrPC). 

The next day, August 5, cites the report, “The President of India voided all clauses of Article 370 of the Indian constitution and suspended the Jammu and Kashmir constitution… Thousands, including minors and almost all the elected legislators of Jammu and Kashmir (excluding those belonging to the BJP), were put under preventive detention.”  Five days later, the Parliament of India passed the Jammu and Kashmir Reorganization Act, dividing the state into two Union Territories, of Jammu and Kashmir, and Ladakh. According to the human rights report: “In the months that followed, national political figures were denied permission to enter the former state and were turned back from Srinagar airport.” 

The economic, social and political impact of these actions, and their long duration – eleven months thus far – have been disastrous, it states. It also highlights that forums to address issues concerning human rights, women and child rights, anti-corruption and the right to information, “were closed when the state was divided into Union Territories, and the Union Government decided not to reinstate them, even though Union Territories too are entitled to independent statutory bodies for oversight.”

It states that there has been a “near-total alienation of the people of the Kashmir valley from the Indian state and people.” The report is an attempt to “to document the numerous human rights violations in the former state over the past eleven and a half months (August 4, 2019 to July 19, 2020) under five broad heads: civilian security, health, children and youth, industry and media.

Some of its findings are:

• Counter-insurgency concerns have been given absolute priority over public, civilian and human security, leading to an across-the-board violation of human rights, including the vitiation of protections such as habeas corpus, prevention of illegal detention and strict restrictions on arrest and detention of children. There has been denial of the right to bail and fair and speedy trial, coupled with misuse of draconian legislation, such as the Public Safety Act (PSA) and the Unlawful Activities Prevention Act (UAPA), to stifle dissent. 

• Harassment at barricades and checkpoints, and restrictions on mobile telephony and internet connectivity, have enormously impacted public health, and caused trauma and stress amongst the people of Jammu and Kashmir, violating the rights to health and medical care under the Indian, and Jammu and Kashmir, constitutions. The rights of children to a trauma-free environment have been arbitrarily ignored. 

• The impact on education has been particularly severe. Schools and colleges functioned for barely 100 days between 2019 and 2020 (the bulk of which were pre-August 2019). After the COVID-19 pandemic lockdown, the limiting of networks to 2G has made it impossible for online classes to function adequately. 

• The local media has been one of the worst sufferers. Journalists have been harassed and even had draconian charges slapped on them, for example under the UAPA. Their content, readership and revenues have suffered such a sharp decline that dozens of journalists have lost their jobs. The new media policy, which introduces censorship by the Directorate of Information and Public Relations (DIPR) in coordination with security agencies, is a death blow to the freedom of the press and the freedom of expression. 

The Kashmir Human Rights Report recommends: 

1. Release all remaining political detainees who were taken into preventive detention on or after August 4, 2019. Repeal the PSA and any other preventive detention legislation, so that they cannot be misused against political opposition, or amend them to bring them in line with our constitutional ethos. Release all detained juveniles and withdraw charges against them. Initiate enquiries followed by criminal and civil actions against personnel of police, armed forces and paramilitary forces found guilty of violation of child rights. Withdraw charges under the UAPA against journalists and activists. 

2. Balance security considerations with public interest, giving utmost consideration to humanitarian concerns involving the population and eliminating hindrances to the welfare and well-being of the people. Curb the application of Section 144 to only those instances in which there is clear and present danger. Restore in practice the humanitarian guidelines to be followed when conducting Cordon and Search Operations (CASO), to prevent civilian deaths, injuries or any other damage or loss, and adequately compensate innocent citizens whose houses have been destroyed in Cordon and Search Operations. 

3. Ensure that police and paramilitary forces at checkpoints allow smooth passage for medical personnel and patients. Where patients lack transport to hospital, provide aid by making vehicles available. Hold police and paramilitary personnel who harass civilians at checkpoints accountable and initiate appropriate disciplinary action. 

4. Restore 4G internet and mobile services in toto. Noting that Jammu and Kashmir has below average access of children to online facilities (see section on children and youth, make additional efforts to provide access for such children. 

5. Reinstate all the former state’s statutory oversight bodies, especially those monitoring human rights, such as the Jammu and Kashmir Human Rights Commission and the Jammu and Kashmir Women and Child Rights Commission. 

6. Rollback the new media policy and encourage all shades of opinion to be freely and peacefully expressed, as the laws apply in every part of the Indian Union. 

The report may be read here:

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Soni Sori:  Victim of the Chhattisgarh authorities

An international coalition of more than 80 individuals and more than 25 organisations in India, the United States and Canada have issued a joint statement condemning the custodial torture of Soni Sori and have called for her release and demanded the prosecution of Chhattisgarh police officials responsible for her torture.

We strongly condemn the custodial torture of Soni Sori and demand immediate prosecution of the culpable officials. The recently received medical report of Soni Sori, a Chhattisgarh schoolteacher, has revealed that two large stones were planted deep inside her vagina and another stone inside her rectum. On October 20, 2011 the Supreme Court had ordered the government of Chhattisgarh to send Sori to NRS Medical College in the neighbouring state of West Bengal for an independent medical examination, based on credible reports of her torture and sexual abuse by the Chhattisgarh police. Evidence of spinal injuries has also been found in the medical reports. These findings conclusively point to the fact that Sori was tortured while she was in the custody of the Chhattisgarh police.

The facts in the medical report are also consistent with a new letter from Soni Sori, now filed with the Supreme Court, where she has described the torture she endured under the direct supervision of the superintendent of police (SP), Ankit Garg. She also communicated gruesome details of her prison torture to a relative and a friend who visited her in jail, who then conveyed the information to people in New Delhi assisting her with the case. The medical report, then, corroborates Sori’s allegations of intense sexual abuse and torture by the Chhattisgarh police.

In accordance with the 113th report of the Law Commission of India that suggested modifications to the Indian Evidence Act 1872, any injury sustained by a person in police custody can be presumed to be caused by the police unless proven otherwise. As evidenced by independent medical examination reports and Sori’s letters, the case meets the criteria for the presumption that specifically SP Ankit Garg and the police force under his command are responsible for her injuries.

We therefore demand that:

• All politically motivated charges against Soni Sori be dropped and that she be released immediately.
• An independent investigation be launched against those who tortured Soni Sori and implicated her on false charges; and that the police officials involved in torture, particularly SP Ankit Garg, be suspended immediately, pending this inquiry.
• Harassment and intimidation of Soni Sori’s relatives cease immediately.

Background on Soni Sori

Soni Sori is the aunt of Lingaram Kodopi, a young journalist who was arrested on September 9, 2011, on charges of collecting money for the Maoists. Her three young children, aged six, 10 and 12 years, are now in the care of her brother Ramdev, since her husband has been imprisoned in Chhattisgarh on false charges. Sori fled the state fearing for her life and reached New Delhi seeking legal assistance. She was arrested on October 4, 2011 by the Delhi police acting under the directions of the Chhattisgarh police.

The police allege that Sori is involved as a conduit for money transfer to the Maoists from the Essar group, a charge openly denied by Essar. She has also been falsely charged in several other cases of aiding the Maoists. An examination of publicly available materials demonstrates that the charges against both Sori and Kodopi are false and politically motivated. Amnesty International has declared both Soni Sori and Lingaram Kodopi prisoners of conscience and has demanded that the charges against them be dropped and that they be freed unconditionally.

In response to petitions filed in courts in Delhi, a judge ordered the Chhattisgarh police on October 7, 2011 to take all measures to ensure Soni Sori’s safety in transit. Produced before a court in Dantewada the next day, a Saturday, a judge granted the police custody of Sori but ordered that she be medically examined prior to taking custody of her and before being produced before the court the following Monday (October 10). However, the police failed to produce Sori before the court on October 10, claiming she had suffered serious injuries due to falling down in the prison bathroom and had to be admitted to hospital.

A video captured by a reporter in the hospital showed her writhing in severe pain on a hospital bed. A medical examination conducted by doctors in the hospital showed “contusions” on her head and “tenderness in her lumbar region”, likely to have been caused by “a hard and blunt object”, but observed that there were no visual signs of “bony fractures”. The medical report also noted black marks on both her middle fingers. We suspect these marks were caused by the administration of electric shocks by the police.

The Chhattisgarh police took her to hospitals in Jagdalpur and Raipur later in the week. Remarkably, the medical reports from these hospitals failed to confirm even the observations reported by the doctors in Dantewada. It was in response to this sequence of events that activists and lawyers filed a petition in the Supreme Court of India demanding an independent medical examination, outside the control of the Chhattisgarh police. The government of Chhattisgarh denied that Sori had been tortured but the Supreme Court granted the petition on grounds that “the injuries sustained by [Soni Sori] do not prima facie appear to be as simple as has been made out… by the Chhattisgarh police”.

The intimidation of her family continues as we await the Supreme Court decision; on November 15, 2011 around 25 policemen arrived at Sori’s father’s house, in search of her brother Ramdev, the sole caretaker of her children. Sori had earlier told relatives that the police had threatened to arrest Ramdev should she disclose that she had been tortured. Sori is also being forced to allege that human rights activists are involved in violent activities as “urban Naxalites”. Lingaram Kodopi is also facing strong pressure to sign statements containing false confessions.

The Chhattisgarh police have a long record of committing human rights abuses and atrocities outside and inside prisons, well documented by human rights organisations in India, including People’s Union for Civil Liberties (PUCL) and People’s Union for Democratic Rights (PUDR), as well as Amnesty International and Human Rights Watch. The Indian Supreme Court, an institution for which we have the utmost respect, has also strongly condemned the abuses committed by the police and the vigilante forces organised, armed and funded by the state and national governments. However, the government of Chhattisgarh, with the support of the government of India, has repeatedly failed to honour the orders of the Supreme Court of India.

December 5, 2011

The complete statement is available at: http://otherindia.org/dev/images/documents/sonisori/sonisori05122011.pdf

Archived from Communalism Combat, January 2012.Year 18, No.163 – Campaign

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