repression,despair and hope

RepRession, DespaiR anD hopeMapping of Police Torture in

Four Districts of Uttar Pradesh and Strengthening Human Rights Institutions

PeoPle’s Vigilance committee on Human RigHts

| 2 RepRession, DespaiR anD hope

RepRession, DespaiR anD hope Mapping of police Torture in Four Districts of Uttar pradesh and strengthening human Rights institutions

December 2013

© People’s Vigilance committee on Human Rights (PVcHR)

Research & Reportsunil Kuksal

coordinationLenin Raghuvanshiharsh Dobhal

copy editingneha Bhatnagar

Field coordinationVaranasi: shruti nagvanshi, shirin shabana Khan, anup srivastava, idrish ansari, irshad ahmed, Jai Kumar Mishra, Vijay prajapatialigarh: Ragib ali, Wazim Khanmeerut: Taj Mohammadmoradabad: Md. Javed akilnew Delhi: Dr. Mohan Lal panda, Mathew Jacob, sunil Kuksal, harsh Dobhal

cover Photographanup srivastava

DesignMahendra Bora

Printed atKalpana printographicsc-355, West Vinod nagar, Delhi-110092

Published bypeople’s Vigilance Committee on human Rightsan initiative of Janmitra nyassa-4/2a, Daulatpur, Varanasi-221002, indiaPh: +91-542-2586688email: [email protected] Website: www.pvchr.asia

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Disclaimerthe views and opinions expressed in this report are not necessarily views of the PVcHR. the presentations in this publication have been paraphrased from oral, sometimes impromptu, speeches made by the participants. every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the PVcHR takes the sole responsibility.*any section of this report may be reproduced without prior permission of the PVcHR/Jmn for public interest purposes with appropriate acknowledgement.

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acknowleDgement

We would like to express our gratitude to the victims of discrimination and survivor of torture from Muslim minority community in Uttar Pradesh for displaying remarkable courage in deposing before the jury of

eminent personalities from across India during the ‘Independent People’s Tribunal on Police Torture in Uttar Pradesh’ organised on April 3-4, 2013 in Varanasi, Uttar Pradesh. This report heavily draws from this tribunal which saw a number of victims narrating their tales of torture bravely and fearlessly.

The members of Jury panel took their time off from their busy schedule and travelled all the way to Varanasi spending two days hearing heart rendering stories from victims of torture and then making their observations and recommendations. We express our gratitude to them.

Taj Mohammad from Meerut, Mohamad Javed Akil from Moradabad, Wazim Khan from Aligarh and Ragiv Ali, member of governing body of PVCHR, Jai Kumar Mishra, Irshad Ahmad and Idrish Ansari from Varanasi, worked tirelessly to identify representative cases from four districts of Uttar Pradesh and brought them before the jury.

Shruti Nagvanshi, Shirin Shabana Khan, Anup Srivastava of PVCHR played critical role in guiding and putting together the IPT, coordinating and implementing this project and rendering all other help before, during and after the tribunal.

PVCHR advisor, Dr Mohan Lal Panda, provided crucial guidance in seeing the project through while Mathew Jacob of HRLN helped in giving final touches to the IPT. We thank all of them for their valuable inputs without which this report would not have come out in this comprehensive form.

This report has also drawn from the earlier works of several organisations working on the issues of human rights, communal peace and harmony, and academic work on minority issues.

PVCHR Team

ContentChapter I

introduction 06

Chapter II

torture 12

Chapter III

MusliM Minority in india 54

Social, Economic and Political Exclusion

Chapter IV

MusliM Minority in uttar Pradesh 76

Chapter V

torture reduction strategies 122

Independent People’s Tribunal on Police Torture against Muslims in Uttar Pradesh

chapter i

InTRoDUCTIon

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The present report on “Reducing Police Torture against Muslims at Grass-roots by Engaging and Strengthening Human Rights Institutions in In-dia” is part of torture prevention project which aims at exploring system-atically the incidences of gross human rights violations suffered by the

minority Muslim community. The study has been carried out in the four districts of Uttar Pradesh, namely; Aligarh, Meerut, Moradabad and Varanasi and documented cases of police atrocities and torture against persons belonging to Muslim commu-nity to bring out the systemic discrimination and violation of human rights of the minority Muslims. The enquiry systematically examines the participants, practices, justification and rationale of illegal and coercive measures employed by the State agencies like police and other security agencies in their attempt to deal with the mi-nority Muslim community. The results of the study are just representative of a macro reality. Attempts have also been made to examine various torture preventing inter-ventions and their impact to develop effective evaluation tools for future use by pre-ventive mechanisms. The study highlights the inability on the part of the State and its institutions to protect the victims which in turn reflects on the efficacy of the justice delivery system in a modern democratic set up like India.

In India, the poorest members of the society, the Dalits and lower castes and religious minorities have been the targets of all kinds of discriminations, torture, cruel and de-grading treatment. Muslim minority has been no exception as far as social prejudices are concerned. They have historically been placed at a disadvantageous position so-cially as well as economically. Religious bias against them has been all pervasive in institutions and governing structure. To capture the realities of Muslim minority al-most six decades after the formation of independent India, the study looks at history, economy, politics and sociology in its chapters. Each part focuses on the critical is-sues, such as economic vulnerability, discrimination, prejudice, organised communal violence, extremism and all pervasive sense of physical insecurity among Muslims.

The core issue of the project “police torture” is considered as a systemic and insti-tutional issue in India. Torture remains a routine strategy for the police as it has not been criminalised in the Indian domestic law. Impunity for alleged torturers is consid-ered as a key factor in the failure to prevent atrocities. Prosecution of alleged torturers like police and other security forces requires prior government permission which is hardly granted. Being the largest democracy, the Indian government is not prepared even to acknowledge the existence of the phenomenon of torture and government authorities are generally hostile and resist attempts by the civil society groups to ini-tiate programmes and activities aimed at torture-prevention and reduction. In this scenario, any torture prevention strategy is likely to face two-fold challenges, the first challenge relates to inherent difficulties in assessing the extent and prevalence of prac-

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tice of torture which occurs in secrecy and therefore reliable figures of its incidences are difficult to reach at; and the second, equally important are the obstacles in planning and implementing anti torture activities and establishing preventing mechanism in operational areas under the given cir-cumstances. In addition to this, as mentioned at the outset of project implementation stage that in a caste driven social and economic structure of Indian society, Muslims are viewed as inferior falling even below the status of the most deprived lower castes or untouchables in the Indian caste hierarchy. Muslims as a community is treated as second-class citizens. Discriminatory attitude towards Mus-lims is not only confined to social or religious groups among Hindus but also State institutions like police have fostered bias towards minority Muslims. This has been manifested and reported widely by the media during the communal riots in Uttar Pradesh. Social science research has shown that deep rooted perceptions about Muslim victims or groups of victims, as a contemptible social group have helped in justifying the acts of torture and other degrading treatment and at the same time have given acceptance to the use of torture. Against this backdrop, police brutality cannot be seen merely as incidents which take place in isolation but gradually brutal actions have become part and parcel of their mentality. All these factors have led to the institutionalisation of torture in Indian criminal justice system.

The central theme of the report, identifying the patterns of torture and injustice against the Indian Muslim minority draws sustenance from two broad assumptions; first, human rights perspective rests on the firm belief that the boundaries of human rights are not merely confined to counting the number of victims and violations but it goes well beyond that. Human rights are also about human needs- needs that extend from proper nutrition, shelter, clothing, health care and education to par-ticipating in the decisions that make human beings live with dignity they deserve. Second, social dis-criminations, cruel and degrading treatments and injustice have their roots in a given political, legal and economic structure where violence is inherent. They are the reflection of the structural violence. In Indian context, the police system and legal institutions are essentially colonial legacies which were evolved to channelise structural violence in order to suppress the masses rather than to serve them. The Indian government preserved these structures even after coming out from colonial clutches. Al-though, the Constitution of India guarantees “equality before the law” and “equal protection of the laws” and also provides provisions against arbitrary or irrational state action but within it contains the seeds of immense arbitrary powers which can be used against citizens with impunity. The funda-mental rights are subjected to umpteen limitations and can be curtailed to the extent of extinction by the legislature and by Presidential ordinance according to the provisions of the Constitution. As a result the use of violence or violent means by the State agencies like police has been institutionalised and used freely to target political opponents, human rights defenders, religious minorities, Dalits and other “lower caste” groups, tribals and other poor and disadvantaged people.

In the post-Independence India various minorities express their anger for the prejudice and discrimi-nation they face despite the fact that Indian Constitution provides various safeguards to protect the identity and interests of minorities. Minorities in India face all types of inequity in the public sphere. Even the violence against and human rights violations of the minority community in India is a com-mon phenomenon. Representing 13.4 per cent (138 million) of India’s population, Muslims are In-dia’s largest religious minority and are the second largest religious group after the Hindus. Muslim community has been an integral part of the national movement for freedom against the British rule in the undivided India. They chose to remain in a multi-religious India rather than migrate to the new Muslim nation of Pakistan after the Partition. Yet, Muslims as a group has not prospered in independ-ent India as majority of Indian Muslims believe that there is institutionalised discrimination against the country’s largest minority group.

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The overall approach of the successive governments towards Muslims in post-Independence India has been that of symbolic appeasement. This has led to the demonisation of Muslims by the right-wing Hindu groups as an unduly favoured religious community. What is more tragic is that the Indian Muslims have to prove their loyalty and patriotism as scholars point out that “Muslims carry a double burden of being labeled as “anti-nationalists” and being appeased at the same time”. In general, Mus-lim community feels that they are constantly looked upon with a greater degree of suspicion even by public institutions and governance structures. The Right wing groups attempting to foster majority nationalism have of late stepped up attacks on minorities. The most disturbing fact is that at times the state administration indirectly supports such oppression and marginalisation of the minorities. Reports of various commissions, panels and committees in the post-Independence period such as Gopal Singh, Srikrishna, Liberhan, Mishra, and Sachar have conceded that India’s Muslim minority faces appalling socio-economic deprivation and the disempowerment of Muslim community is the result of decades of utter neglect and abuse.

In recent years there has been an increasing tendency to associate all Muslims with the acts of terror-ism and this taint of “terrorism” has become an easy pretext to target Muslims especially youth who are arbitrarily arrested or detained as alleged terror suspects often without any evidence. Innocent young Muslims have been reported to be victimised by the police on the charge of being involved in various terrorism-related crimes in many states across the country. In many cases, victims are tor-tured in police custody and made to “confess” and sign blank papers. The police has been often hu-miliating Muslim detenues on the ground of their religion as a result of widespread communalisation of the police across states in the country.

Religious profiling in the form of arbitrary detentions, torture, and encounters are not uncommon in the world’s biggest democracy today. The revelation of the key findings of the Sachar Committee as reported by the leading Indian daily “The Indian Express” points to the disturbing fact that one of the worst forms - but a good index - of discrimination against Muslims is their over-representation in prisons in all Indian States surveyed barring Assam. After the publication of the report questions were raised about the over-representation of Muslims in prisons compared to all other communities and in some cases it was found that their representation has been much higher than their population proportion. But these figures have been excluded from the final version of the Sachar Committee report. The report points out that high number of Muslims in Indian prisons is due to their adverse socio-economic conditions and systemic bias against the community in the institutions of police and judiciary. Muslims today feel that they face an increase in discrimination and violence at the hands of State institutions and officials and at the same time they are also described as the principal threat to the rule of law for their alleged willingness to condone terrorism. The aggressiveness and arbi-trariness of state institutions against Muslims have been fueled by a growing popular perception that terrorism in India is a specifically Muslim phenomenon, and that many otherwise innocent Muslims tolerate or are sympathetic to it. Muslims believe this perception is promoted by the state and the media. Thousands of innocent Muslim youths have been trapped, victimised and tortured in what is called “anti-terrorism dragnet” which consists of a range of assorted sets of draconian anti-terrorism laws such as the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Prevention of Ter-rorism Act (POTA) and the Unlawful Activities (Prevention) Act (UAPA). These special security laws allow the authorities, particularly the police and other security agencies to hold innocent people for long durations without filing the charges.

This report has documented selected cases of persons from Muslim community who have been the victims of arbitrary or illegal detention, arrested and tortured by the police in the four districts of Uttar Pradesh, namely, Aligarh, Meerut, Moradabad and Varanasi. Uttar Pradesh, the most populous

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state in India bears the highest number of Muslim inhabitants. Of every 100 Muslims in India, 22 live in Uttar Pradesh. According to Census 2001, 18 per cent of the state’s population is Muslims who form the largest minority in the state. Nearly 37 per cent of the Muslim population lives in urban areas. With regards to the geographical distribution of Muslim population in the northern state, it is found they are distributed across all the districts of the state. It varies from 2.97 per cent in Lalitpur to 49.14 per cent in Rampur. The rate of urbanisation is 37 per cent among Muslims of Uttar Pradesh, which is two percentage points more than that of national Muslims average. Specifically, the districts of Aligarh, Meerut, Moradabad and Varanasi in Uttar Pradesh have a substantial Muslim population, which is approximately 35 per cent of the population within these districts. This fact does not protect them from being the most deprived and marginalised group by all social and economical indices. Ut-tar Pradesh remains at the top among the Indian states that have seen large scale communal riots and mindless mob violence targeted particularly at the Muslim community in the post-Independence period. Anti-Muslim bias in the police, and police violence and abuse, particularly against Muslim youth, are repeated sources of complaint. Uttar Pradesh has been reporting highest number of inci-dents of police brutality at National Human Rights Commission (NHRC) during more than a dec-ade. In its report (2005-06) the Commission commented that the trend continues despite the fact that the State of Uttar Pradesh has its own state human rights commission.

Being voiceless and powerless makes it very difficult for the disadvantaged Muslim community mem-bers to access justice system and as a result they become an easy prey for the state and its institutions like the police, bureaucracy and the elite class who constantly frustrate their efforts to avail judicial redress. Even when the victims are acquitted or discharged on being found innocent, they are not compensated for the destruction of their lives and reputation. Attempts to exercise or vindicate their rights by availing themselves of the legal protection still formally guaranteed by the Indian Constitu-tion and laws meet additional obstacles. It has been found that even the Bar Associations have been preventing lawyers from appearing on behalf of Muslims accused by the police of various offences. Human rights lawyers are intimidated or discouraged from representing Muslims, particularly in cases alleging “anti-national” activity. Although, this is considered as gross contempt of court but the courts have hardly taken action against such Bar Associations and lawyers who are coercing other lawyers in this manner. Judges are increasingly hostile to Muslim defendants and litigants. The police individually and institutionally are empowered and emboldened by a culture of anti-Muslim senti-ments. They pick up callously and victimise innocent persons particularly Muslims with no criminal records. More often the arrests are made to extort money from those put under police custody. Con-cerned police officials are not held accountable which has led to a culture of virtual impunity among the police force.

Culture of impunity is further strengthened by the lack of legislation against torture. Torture is not criminalised in Indian law as a separate or special offence. There is no specific legislation in India that provides a definition of torture. India also does not have a law that can clearly identify torture as a crime. There is also no system for victim and witness protection. India has not ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) but has signed the Convention on October 1997. So far, India has not taken steps to en-sure that its domestic legislation complies with UN Convention’s requirements. The UN Convention against Torture (UNCAT) requires States Parties to criminalise, prosecute and punish acts of torture under national criminal law.

Although, the Supreme Court of India has from time to time outlined best practices for police and other state actors, but the Indian legislature has not responded by codifying these practices into law. Unfortunately it has failed to identify, or to acknowledge that their policies, legislation, regulations

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and administrative practices are inadequate to the most fundamental aim of preventing acts of tor-ture and other cruel, inhuman or degrading treatment or punishment (IDTP) from occurring. Under CAT’s provisions ending impunity for torturers is seen as crucial, along with the opportunity for redress to victims of torture. The absence of law against torture has been responsible for the creation of a culture of impunity which further ensures that police torture remains prevalent across India.

In recent years, wide prevalence of police torture and culture of impunity have drawn attention of legislature, judiciary, media, NGOs and human rights commissions but a little attention has been given on the plights of victims of custodial crimes. Torture and coercion have devastating impact on physical and mental health of the victim. It affects as well all the more adversely the social lives of the individuals, their children, families, communities and society at large. The severe trauma and untold sufferings after the torture leave a long lasting sense of fear and horror often forcing victims and sur-vivors to live abnormally throughout their lives. Nevertheless, judicial activisms, widespread media coverage, initiatives taken by the National Human Rights Commission as well as Civil Society Inter-vention have shown their concern for combating torture and upholding human dignity. Although, more importantly over the years the higher judiciary has upheld rights of the victims of custodial torture through its creative interpretation, but even then the incidences of identity based torture of victims and other human rights violations in police custody have not only increased in manifold di-mensions but also became a part and parcel of routine police practice for criminal interrogation and extracting confessions these days.

For the culture of impunity and deep rooted preconceived notions about Muslims coupled with political climate in a conservative Indian society, it was a herculean task to implement such an inter-vention project on torture against Muslims. In Indian society, caste and religion have a dominant role socially as well as politically which have major bearings on the structure of governance. It was realised that these obstacles are directly or indirectly going to affect the potential effectiveness of any anti-tor-ture activities and therefore, instead of approaching the problem of torture in a purely legalistic man-ner in terms of looking at non-compliance with or non- enforcement of legal provisions regarding life and liberty of citizens, social and cultural norms and practices forming the basis of torture were also examined to form a holistic understanding. In this context it was felt crucial to devise effective action against the root causes of torture. Though, from the outset it was quite difficult to convince the members of the project team both Hindus and Muslims to come together to build an understanding of the human rights and importance of international convention like UNCAT which can serve as an effective tool for prevention and eradication of torture and create an awareness about minority rights at the state and national level. Building trust of the Muslim community in police and judicial institu-tions, promoting the role of human rights defenders and engaging the justice delivery mechanism of institutions such as National Human Rights Commission, National Commission for Minority and State Human Rights Commissions have been some of the strategic considerations of the prevention project which the present study report has tried to address and compile. It also attempts to suggest strategies to engage and empower Human Rights Institutions and human rights defenders to ensure justice for the victims of torture.

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chapter ii

ToRTURE

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Defining exactly what torture means is a complex and challenging task. The main challenge is to determine which practices are legitimate and which are illegal, causing pain and suffering that fall into the category of “cruel and inhuman or degrading treatment” or torture. According

to Henry Shue, “Torture involves (1) the deliberate infliction (2) of physical pain or psychological distress. It is a condition of an act’s counting as torture that (3) victims of torture must be defenceless, at least in the sense that they must be completely at the mercy of their torturers”.1

Torture, probably one of the most common and extreme forms of human rights vio-lations is an act of cruelty that cannot claim impunity. Torture is a slow process, de-signed to render its victim helpless, dependent and devoid of all human qualities. Torture is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’. Its purpose is to destroy deliberately not only the physical and emotional well-being of individuals but also, in some instances, the dignity and will of the entire commu-nity involved.

Torture is a perverted form of human interaction, which involves at least two persons, the victim and the torturer. At an individual level, torture has been used as punish-ment with the purpose of destroying the victim as a human being through the sys-tematic infliction of severe pain and psychological suffering. It is characterised by ex-treme degradation, humiliation and dehumanisation. Torture is a technique with the purpose of carrying pain almost to the infinite. Patrick Lenta cautions against treating torture as though it were a single phenomenon, susceptible to moral justification or condemnation independently of the purposes for which it is used. Lenta classifies torture into various types, according to different goals or purposes that torture may be used to achieve. He distinguishes deterrent or terroristic torture (for the purpose of intimidating people other than the victim); interrogational torture (for the pur-pose of extracting information); sadistic torture (for the purpose of entertaining and gratifying the torturers); and dehumanising torture (for the purpose of breaking the resistance of the victim). To this foursome, Lenta adds, significantly, Foucault’s no-tion of “public” or “spectacular” torture, in the sense of a public act of vengeance that is extra-legal and which has the purpose of showing a state’s sovereign power over prisoners.2

Michel Foucault writes: “Torture is the art of maintaining life in pain, by subdividing it into a thousand deaths, by achieving before life ceases the most exquisite agonies”.3 At a social level, authoritarian governments of all colours have used torture as a politi-cal tool to create fear and intimidate dissident groups with the purpose of preventing

1. Shue, Henry. “Torture”, Philosophy & Public Affairs, 1978, 7(2): pp- 124-143.2. Patrick Lenta, “The Purposes of Torture”, South African Journal of Philosophy, 25(1), 2006, pp-49-50.3. Foucault, M. (1979). Discipline and Punishment. The Birth of the Prison. Vintage Book, pp- 33-34.

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the population from expressing opposition towards government policies. Foucault suggested that the purpose of torture was not to demonstrate why the law was enforced but to demonstrate who its enemies were. Torture, therefore, must be seen as a process; torture is an expression of state power and a method of constituting and expressing the domination of the state over its subjects.

Over the years, the incidence of torture has only increased, with the methods becoming highly com-plex, involving psychical and/or physical exhaustion. Modern interrogators still make use of me-dieval torture techniques, and, since the human body has not changed in the past thousand years, they remain effective. The prime example of the use of torture against “enemies of the state” was in the former USSR, as documented by Aleksandr I. Solzhenitsyn in “The Gulag Archipelago” based on extensive research and his own experiences as a prisoner. The interrogations that Solzhenitsyn describes strongly resemble those of the Inquisition, except that there is no judge, no trial, and the prisoner is already under a sentence of imprisonment and labor for a period of years. Solzhenitsyn documents numerous torture methods employed in questioning prisoners, including humiliation, tickling the inside of a bound prisoner’s nose with a feather, cigarette burns on the prisoner’s skin, extended periods of standing or kneeling, deprivation of water for periods of days, sleep deprivation, continuous interrogation for periods of days with relays of interrogators, starvation, and beatings of all kinds.4 The goals of these tortures were to compel the prisoner to sign a confession, validating the state’s act of imprisoning him and to get the prisoner to expose all of his possibly subversive accom-plices or acquaintances.

Additionally, the techniques listed by Solzhenitsyn have been reported in use around the world, as have a variety of new methods of causing physical or psychological distress during an interrogation. Among these methods are:

Applying electrical shocks using a cattle prod or mains current, frequently to the genitals and nipples.

• Sensory deprivation

• Psychoactive drugs

• Rape (though not a new phenomenon, its use in interrogation is apparently new)5

The Chilean Human Rights Commission listed 85 different types of physical torture. Physical torture can be brutal with severe physical damage and a high lethal rate, but often the torturers want to avoid visible body marks. The most frequent methods of physical torture are beatings, suspension, stretch-ing, electric torture, submersion, suffocation, burns, cuts and sexual assaults. The time between the exposure to torture and the medical examination is crucial; the closer the victim is examined to the time of torture, the easier it is to observe any physical signs.6 Given a modern prison facility, it is a simple matter to hold a prisoner indefinitely, inflicting any kind of torture desired over the course of many years. The sheer hopelessness of being held at the mercy of the torturers, with no hope of ever being released, or even killed, must rank as one of the most devastating tortures ever imagined.

4. Solzhenitsyn, Aleksandr I. The Gulag Archipelago, Harper & Row, New York, 1973, pp-103-117.5. Forrest, Duncan (editor), for Amnesty International United Kingdom, A Glimpse of Hell: Reports on Torture Worldwide, pp-107-114.6. Berliner P., Nikkelsen E.M., Bovbjerg, A., Wiking, M, “Psychotherapy treatment of torture survivors”, International Journal of Psychosocial Rehabilitation, 2004, pp-85-96.

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Definitions: Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

Torture as a tool of interrogation is not a new phenomenon. Governments sometimes characterise torture as an indispensable interrogation tool for gathering strategic intelligence. It has been used as a means to coerce information from human beings at least since the first written law codes, and its use has, at various times in the past, been ubiquitous throughout the world. Interrogators often utilise coercive techniques to cause the subject to cede the desired information. These coercive techniques exist on a continuum from “direct questioning” through “torture” and “death”. The ancient Greeks used torture, especially against slaves and especially when they were defendants in criminal proceed-ings, but also when slaves were witnesses in civil litigation. The Romans codified the use of torture. The Roman law included torture as a regular part of the law of proof. The rationale and refutation of torture go back to Aristotle, “Examination by torture is one form of evidence, to which great weight is often attached because it is in a sense compulsory.” Nevertheless, Aristotle went on to qualify its reliability, saying that “evidence under torture is untrustworthy . . . so that no trust can be placed in evidence under torture.”7 The 19th and 20th centuries heralded the establishment of organisations such as the Red Cross and the United Nations. These organisations have emphasised the humane treatment of prisoners and all human beings in general. This has resulted in a body of international law (conventions, treaties, protocols, declarations) increasingly protective of human rights. During the 20th century, governments have gradually come to accept the human rights mantle, at least in part, due to the presence of watchdog organisations. Amnesty International was the first organisation that defined torture from a political and operational point of view to be used in eligibility for care, human rights advocacy, and for surveys and epidemiological research.

Amnesty International’s definition of torture

The initial simple and broad definition of torture was used in the “Report on Torture” in 1973:

“Torture is the systematic and deliberate infliction of acute pain by one person on another, or on a third person, in order to accomplish the purpose of the former against the will of the latter. Given that the word ‘torture’ conveys an idea repugnant to humanity, there is a strong tendency by torturers to call it by another name, such as ‘interrogation in depth’ or ‘civic therapy,’ and a tendency of victims to use the word too broadly”.8

World Medical Association’s definition of torture

The World Medical Association (WMA), in its Tokyo Declaration in 1975, adopted a similar defini-tion:

“Torture is defined as the deliberate, systematic or wanton infliction of physical or mental suf-fering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason”.9

7. Geoffrey R. Skoll, Torture and the Fifth Amendment: Torture, the Global War on Terror, and Constitutional Values, Criminal Justice Review, Volume 33 Number 1, March 2008, pp-31-32. 8. Amnesty International Report on Torture 1973, pp-29-30.9. Amnesty International, “Ethical codes and declarations relevant to the health professions: an Amnesty International compilation of selected ethical texts. Third ed”, Amnesty International, 1994.

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The Geneva Conventions and Protocols

The prohibition on torture and cruel, inhuman or degrading treatment or punishment is set out in all the major international instruments dealing with civil and political rights. It is also prohibited by the four Geneva Conventions of 12 August 1949 and their two Additional Protocols. The Geneva Con-ventions comprise a set of four treaties and two protocols governing humanitarian treatment during the course of war. They are considered by many the basis of international law relating to humanitar-ian issues. The treaties were last revised in 1949 in Geneva. The Third Geneva Convention states in Part III, Section 1, Article 17: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvanta-geous treatment of any kind”.10

Taken as a whole, the Geneva Conventions and Protocols protect human beings against inhumane treatment (including torture). No where in the documents is torture explicitly authorised for any purpose whatsoever under any condition. The conventions bind their parties to humane treatment in all situations of armed conflict.

United Nations’ definition of torture

From its beginning, the United Nations (UN) has taken a leading role in the movement to ban tor-ture. On 10 December 1948, the UN adopted the Universal Declaration of Human Rights as a state-ment of its goals and aspirations regarding human rights and fundamental freedoms. Article 5 states: “No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment.”’11

Over the next decades, the UN continued to work on the adoption of universally applicable stand-ards to prevent abuses of individuals. This culminated in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was adopted on 10 December 1984. The convention came into force on 26 June 1987. The most widely accepted definition of torture in-ternationally is that set out by Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT):

“For the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”.

In accordance with Article 1, the international concept of torture comprises five elements:

a) severe pain and suffering, whether physical or mental;

b) intentional infliction;

c) for such purposes as obtaining information or a confession, punishing, intimidating or coercing, or for any reason based on discrimination of any kind;

10. Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949.11. The Universal Declaration of Human Rights, Article 12.

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d) inflicted by or at the instigation of or with the consent of a public official and other person acting in an official capacity;

e) exclusion of torture related to pain arising from lawful sanctions.12

The definition of torture from the CAT is the official definition for the 210 countries that had rati-fied the convention as of April 23 2004. This legal definition was restricted to apply only to nations and to government-sponsored torture and clearly limits the torture to that perpetrated, directly or indirectly, by those acting in an official capacity. It does not include cases of torture practiced in some countries as a lawful punishment, such as mutilations, whippings or canings, nor does it include tor-ture practiced by gangs or hate groups. The Convention reintroduced the concept of grades, when it defined torture as severe pain or suffering, the other level being cruel, inhuman or degrading treat-ment (also called maltreatment).

Other legal instruments

Despite these various interpretations, when it comes to defining “torture” the main elements remain those laid down in the CAT. An important characteristic of this Convention is that it introduces a sig-nificant difference between the term “torture” and “other acts of cruel, inhuman or degrading treat-ment or punishment” (CIDT), it bans torture completely and absolutely (Art. 2)13 while imposing on states “only” the obligation to “undertake to prevent” cruel, inhuman or degrading treatment (Art. 16). States have used this to argue that while torture is forbidden, cruel, inhuman or degrading treat-ment may be justified under exceptional circumstances. If such treatment is to be allowed in certain circumstances, but not torture, the differentiation between these two notions becomes important.

“Under customary international law, the prohibition of torture is jus cogens—a peremptory norm that is non-derogable under any circumstances which means that a State is not permitted to tempo-rarily limit the prohibition on torture under any circumstance whatsoever, whether a state of war, in-ternal political instability or any other public emergency”.14 In other words, it overrides any inconsist-ent provision in another treaty or customary law. This elevated status within international law places torture on par with slavery and genocide. Other legal instruments, however, do not differentiate be-tween the two terms. The Inter-American Convention to Prevent and Punish Torture defines torture more broadly than the UN Convention. Article 2 defines torture as “any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal inves-tigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.”15

12. United Nations, “Convention against torture and other cruel, inhuman or degrading treatment or punishment”, 10 December 1984. In: Human rights 1945-1995, Volume VII, Document 50. United Nations, 1995, pp-294-300.13. Article 2 (2) of the CAT states that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”14. Article 53 of the Vienna Convention on the Law of Treaties lists four criteria for peremptory norms: “(1) They are norms of general international law. (2) They have to be accepted by the international community of States as a whole. (3) They permit no derogation. (4) They can be modified only by new peremptory norms.” Lauri Hannikaninen, Peremptory Norms ( JUS COGENS) in international Law: Historical Development, criteria, Preset Status 3 (1988). 15. Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force Feb. 28, 1987, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American system, OEA/Ser.L.V/II.82 doc.6 rev.1 at 83 (1992), Article 2.

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The International Covenant on Civil and Political Rights (ICCPR), for example, prohibits in abso-lute terms both torture and inhuman or degrading treatment. ICCPR is a legally binding document containing a straight forward statement about torture:

Part III, Article 7

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punish-ment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”16 Federal Criminal Anti-Torture Statute, 18 the United States Code (USC), Section 2340 enacted in 1994 defines: (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffer-ing (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the admin-istration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”

The same is true of the European Convention on Human Rights (ECHR).17 International humani-tarian law equally forbids torture (whether physical or mental) and cruel, humiliating or degrading treatment, as well as any form of physical or moral coercion. The definition of torture, as opposed to cruel, inhuman or degrading treatment, is thus not very clear and a constant issue of debate. An inter-pretation in good faith of the relevant human rights instruments, however, makes the differentiation between these notions legally irrelevant, as the intention was to prohibit both torture and inhuman or degrading treatment, and not to allow states to circumvent the absolute prohibition of torture by classifying methods as cruel, inhuman or degrading, rather than as “torture”.

The Istanbul Protocol

The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhu-man and Degrading Treatment or Punishment, a landmark publication otherwise known as the Is-tanbul Protocol is the first set of international guidelines for documentation of torture and its con-sequences. “This manual includes principles for the effective investigation and documentation of torture, and other cruel, inhuman or degrading treatment or punishment. These principles outline minimum standards for States in order to ensure the effective documentation of torture”.18 The Is-tanbul Protocol provides a set of guidelines for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and any other investigative body. The Istanbul Protocol was developed in 1999 and became a United Nations official document on torture.

The document has analysed and fully documented virtually all aspects of torture and its consequenc-

16. ICCPR, Articles 4 and 7. 17. European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3: ‘‘No one shall be subjected to torture or inhuman or degrading treatment or punishment.’’ 18. Istanbul Protocol, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Professional Training Series No:8/Rev.1, United Nations Publications, Geneva, 2004, PP -1&2

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es and established a procedure for governments or independent bodies to conduct a standardised investigation of the use of torture. According to Hernan Reyes, even if there are no visible physical evidences, it is nonetheless torture which can still have severe consequences. Torture involves both physical and psychological methods, producing both physical and psychological effects. The Istan-bul Protocol rightly considers torture as a holistic process and states categorically that torture, to be qualified as such, need not leave any visible scars or marks.

“In other words, torture is not a “WYSIWYG” issue.19 The “size of the scars” has no relation to the ex-tent of the trauma: the fact that no scars are left therefore does not mean the person was not tortured. For many decades, numerous courtrooms tended to dismiss allegations of torture on the grounds that the plaintiffs had “nothing to show” on their “allegedly tortured” bodies. The Istanbul Protocol officially establishes that absence of evidence is not evidence of absence, thus affirming that torture is torture, even if it leaves no physical traces at all. By extension, psychological methods of torture, which are not expected to leave any “physical marks”, also constitute a form of torture. This had of course already been common knowledge for many years in centres for the rehabilitation of torture survivors, where torture was found to have produced serious trauma and health problems without leaving any physical evidence.20 Hernan Reyes writes that late Professor Sten Jacobssen, a Swedish expert on torture, always stressed that “the worst scars are in the mind”. The Istanbul Protocol rightly considers torture as a holistic process that can involve both physical and psychological methods, producing both physical and psychological effects.

Torture is one of the most extreme forms of human violence which has been used for thousands of years, and is still widespread, occurring throughout much of the world. Amnesty International in its reports has commented that a solid country by country statistics about the crime of torture is not available. It is impossible to estimate how many people were tortured in the last century, the last decade or the last year. However, since beginning of 1997 until mid-2000, Amnesty International received reports of torture or ill-treatment committed by state officials in more than 150 countries. In more than 70 countries, such torture and ill-treatment appeared to be widespread or persistent. In more than 80 countries, people reportedly died as a result of torture. Moreover, the common meth-ods of torture and ill-treatment used by state agents or police in almost all the countries across the globe include beating (more than 150 countries), electric shocks (more than 40 countries), rape and sexual abuse in custody (more than 50 countries), suspension of the body (more than 40 countries), beating on the soles of the feet (more than 30 countries, suffocation (more than 30 countries), mock execution or threat to death (more than 50 countries). Other methods included submersion in water, stubbing out of cigarettes, sleep deprivation and sensory deprivation (Amnesty International 2001).

Research has shown that torture can have enduring negative effects on both survivors and perpe-trators, and is ineffective for obtaining reliable information in interrogation. As the term torture is infused with a sense of moral reprobation, countries are very reluctant to condone torture public-ly. Despite the implementation of international laws banning the use of torture under any circum-stance, state-sponsored organisations around the world still induce physical and psychological harm on criminals, suspects, and other types of detainees, both in interrogation and in other contexts. Its widespread use continues as part of internal conflicts within nations, as well as in international conflicts. If cruel and unusual harm is committed and/or acknowledged by various security depart-

19. Abbreviation borrowed from computer engineers: WYSIWYG ‘‘what you see is what you get’’, in this case meaning that a victim of torture may well have no scars or traces at all on the body, but this in no way diminishes credibility, which must be established separately. See Michael Peel and Vincent Iacopino (eds.), The Medical Documentation of Torture, Greenwich Medical Media, London, 2002, ch. 5.20. Hernan Reyes, “The worst scars are in the mind: psychological torture,” International Review of the Red Cross, Volume 89 Number 867 September 2007, PP- 600-601

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ments, committed and/or acknowledged by various ranks, and goes unpunished or hardly punished after judicial review, then the use of torture is de facto an organised and systematic policy (though possibly unwritten), regardless of whether the country admits that it used torture. However, there is very little consensus on what that definition actually means. Those scholars that have addressed this question are hopelessly divided. Some have remarked on the fact that “torture does not have a clear legal meaning, in part because there have been no general and systematic attempts to map the border between “torture” and “not torture”.21 In the absence of a universal definition, many governments narrowly define torture, enabling their agents to act however they see fit without crossing the defi-nitional line. Governments are able to continue to condemn torture publicly while employing hor-rific methods of interrogation and punishment. As Gail Miller writes that finally, a single definition would assist the international community in placing pressure on offending governments. Former UN Secretary-General Kofi Annan has explained that,

“torture is an atrocious violation of human dignity. It dehumanises both the victim and the per-petrator. The pain and terror deliberately inflicted by one human being upon another leave per-manent scars. . . . Freedom from torture is a fundamental human right that must be protected under all circumstances. Growing awareness of international legal instruments and protection mechanisms gives hope that the wall of silence around this terrible practice is gradually being eroded”.22

Terrorism, Counter terrorism and Torture- Post 9/11

September 11th, 2001 attack in the United States’ cities of New York and Washington DC, common-ly referred to as 9/11 sent shockwaves of fear and insecurity far beyond the borders of the United States. The events have changed the way international law and politics are perceived and conducted. There has been a call for legitimisation (if not legalisation) of torture in the war on terrorism. This call has been loudest in those nations most effectively targeted by the terrorist organisations. The 9/11 attacks triggered stringent anti-terror laws and since then there has been a raft of legislations and policies all over the world specifically designed to counter terrorism. Many states adopted new laws or amended already existing ones with the purpose of combating terrorism. It has been argued that many of these laws have departed from the usual criminal justice or other policy and practice and have been subject to criticism and concern. The ‘war on terror’ has affected the absolute legal pro-hibition against torture and other forms of cruel, inhuman or degrading treatment and punishment. The discourse of terrorism has been vague enough to allow States to justify almost all governmental actions in terms of national security and by doing so (whether in a “war” or in an “emergency”) suddenly justify human rights violations, including torture and cruel, inhuman or degrading treat-ment and punishment. However, the nations do not necessarily admit they engage in torture, but evidence persists and points to its existence, even if there are no agreements on the exact magnitude of the problem. Furthermore, the courts have found some measures to be non-compliant with hu-man rights. The prevention of terrorism is about protecting some of our most basic human rights – a fact which sometimes gets lost in the debate about terror prevention and civil liberties.

Most human rights bodies see a tension between counter-terrorism and the need to guarantee human rights. Counter-terrorism measures have ranged from the strengthening of mutual cooperation and intelligence-sharing between police departments and security intelligence services and the adoption

21. Michael W. Lewis, “A Dark Descent into Reality: Making the Case for an Objective Definition of Torture”, 67 Washington & Lee Law Review, 77 - 2010, PP- 8222. Gail Miler, “Defining Torture”, Floersheimer Center Occasional Papers, Benjamin Cardozo School of Law, New York, Dec. 2005, PP-5

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of new legislation to deal with the financing of terrorist activity, to the adoption of new national secu-rity legislation to provide additional powers to investigative authorities and which introduce separate procedural frameworks for the investigation of terrorist offences, including procedures for arrests, detentions and trial. Under the stated intention of combating terrorism certain governments have ap-plied these separate procedural frameworks to oppress on minority groups and political opponents. The reach of counter-terrorism measures extends far beyond the criminal law.

“The human rights framework is not soft on terrorism. It acknowledges that states must some-times take exceptional measures to ensure public security. But whatever the emergency situa-tion, some fundamental human rights and freedoms can never be suspended or derogated, such as the right to life; the right to freedom from torture and all forms of cruel, inhuman, or degrad-ing treatment; and the right to freedom of thought, conscience, and religion. In addition, human rights treaties such as the International Covenant on Civil and Political Rights establish that any restrictions on other rights must be, among other requirements, exceptional and temporary in nature; limited to the extent strictly required by the exigencies of the situation; non-discrimina-tory solely on the ground of race, color, sex, language, religion or social origin; and consistent with the state party’s other obligations under international law, particularly the rules of interna-tional humanitarian law”.23

In the aftermath of the September 2001 terrorist attacks, the debate has been influenced significant-ly by the antiterrorism initiatives of countries, including the United States, and the U.N. Security Council, for which the United States and United Kingdom have been driving forces. Within weeks after the September 2001 attacks, the Security Council took the unprecedented step of determining that ‘terrorism’ constitutes a threat to international peace and security and adopted Resolution 1373 pursuant to its powers under Chapter VII of the U.N. Charter, which authorises the Council to take measures “to maintain or restore international peace and security” in response to any “threat[s] to the peace, breach[es] of the peace, or act[s] of aggression” – and to mandate, rather than simply to call for, compliance by member states. After 9/11, UN Member States are not only entitled to defend their “national security” against terrorist threats but now have an obligation under international law to implement specific measures as set out in Resolution 1373 as well as “other measures” to combat terrorism.

“Resolution 1373 requires member states, among other things, to prevent and criminalise the financing or collection of funds for “terrorist acts,” to freeze assets or resources of persons who commit or are involved in the commission of terrorist acts, to prohibit the making of any assets, resources, or services available to persons who commit or are involved in the commission of terrorist acts, to bring to justice any persons who commit or are involved in financing, planning, preparing, or supporting “terrorist acts,” and to legislate separate, “serious criminal offenses” proscribing “terrorist acts” under domestic law. The resolution does not define “terrorism” or “terrorist acts,” leaving each state to define those terms for itself. Nor does the resolution affirma-tively require states to heed human rights obligations, although subsequent resolutions have ex-plicitly “call[ed] upon” and “reminded” states to ensure that antiterrorism measures comply with international human rights, refugee, and humanitarian law”.24

The resolution created a new entity called the Counter Terrorism Committee (CTC) of the Secu-rity Council composed of all fifteen Council members to monitor the implementation and compli-ance of Resolution 1373 by the states. The resolution called upon states to report their progress

23. In the Name of Counter-Terrorism: Human Rights Abuses Worldwide, A Human Rights Watch Briefing Paper for the 59th Session of the United Nations Commission on Human Rights, New York March 25, 2003, PP-324. Anil Kalhan Et al, “Colonial Continuities: Human Rights, Terrorism and Security Laws in India”, Columbia Journal of Asian Law, 2006, PP-214.

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towards implementation to the CTC within 90 days and periodically thereafter. The resolution did not elaborate further upon the CTC’s mandate, leaving the CTC itself to define its agenda and ap-proach to implementation. States appear to have taken their obligations under the resolution seri-ously. Compliance with the resolution’s reporting requirements has been higher than with previous Security Council mandates, and states also have responded positively to the CTC’s effort to encour-age ratification of existing international antiterrorism conventions and protocols. A report written by Gabriela Echeverria clearly points out that the resolution did not mention States’ obligations to comply with international human rights and humanitarian law. The Committee has failed to address seriously States’ human rights obligations and even declined proposals by the High Commissioner for Human Rights to request States to include a human rights component when reporting on their implementation of resolution 1373. Consequently, most States have refrained from including a hu-man rights component in their reports to the Committee.25

The issue of torture has most recently stirred debate with respect to interrogation practices used by the United States. The whole world was stunned by a series of photographs and videos of torture or harsh interrogation of detainees by Americans in its war against global terrorism in the front pages of the papers over the past decade. From the prisoner abuse and torture at Abu Ghraib Prison in Iraq, to Khalid Sheikh Mohammed being water boarded 183 times, the War on Terror has led not only to the approval of harsh interrogation techniques, but also to some abuses. After reports of human rights abuses by the US military, a US Defense Department working group report on detainee inter-rogations and a US Justice Department memorandum on US torture policy argued for a fairly narrow definition of torture that excludes mental pain and suffering caused by various acts that do not cause severe physical pain. According to this definition, various interrogation and detention procedures and psychological manipulations designed to break a person’s resistance do not constitute torture. The implications of such a narrow definition of torture have raised serious concerns in the human rights community. The war on terror has highlighted just how narrowly and inconsistently nations define the torture they so condemn.

The incidents of torture have stirred debate time and again with respect to interrogation practices used by the nations. It has raised questions over the rationale, that torture and cruel, inhuman or degrading treatment and punishment are defensible as “effective means” of obtaining information es-pecially when the arguments and actions to contextualise torture and other forms of ill-treatment are linked to counter-terrorism activities. It is usually argued that human rights (including non-deroga-ble human rights such as torture) interfere with the capacity of States to fight terrorism effectively so there is a need to violate human rights while countering terrorism. This argument is fundamentally flawed. As explained by Mary Robinson, former UN High Commissioner for Human Rights, ensur-ing human rights and humanitarian law is the “only long term -guarantor of security. “Some have suggested that it is not possible to effectively eliminate terrorism while respecting human rights. This suggestion is fundamentally flawed. States and the community of States may be said to be secure only when all of its constituent elements – its territories, its inhabitants, and its governments – are secure. Security of the inhabitants includes the inviolability of their human rights. In a State where human rights are insecure the State itself is insecure.” 26 Successive U.N. high commissioners for hu-man rights have expressed serious concerns about the possible impact of Resolution 1373 on human rights worldwide. The High Commissioner’s office has also produced a set of guidelines highlight-ing human rights obligations that should be actively considered by the CTC in reviewing country reports and developing further measures.

25. Gabriela Echeverria, “ Terrorism, Counter Terrorism and Torture: International Law in the Fight against Terrorism”, The Redress Trust, London, 2004, PP-1626. Mary Robinson, statement at 59th session of UNHRC, 20 March 2002

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Indian Scenario

Despite the fact that India is a liberal democracy with an independent judiciary and clear Constitu-tional provisions to protect all its citizens from any form of discrimination or torture, if the media and human rights reports are any indicators to go by, the incidents of torture and inhuman treatment in police custody are quite high. In India, no reliable or authentic statistics is available regarding the custodial crimes or torture in police custody as most of the incidents of torture are not recorded. Reliable information on custodial crimes is rare and, when it exists often incomplete because the crime in custody is most serious. The systems of accountability are so inadequate that the police have virtual impunity, so that the frequency of use the torture in custody can only be inferred. Incidents of torture and injury in urban areas are brought to public notice by the media, while large number of such incidents occurring in rural areas of our vast country, remain unnoticed. In this state of affairs, it is difficult to pinpoint the exact number of incidents of torture and death in custody. 27

Torture is endemic in India and this is a fact acknowledged by the authorities and widely document-ed. The fact finding data of the National Project on Preventing Torture in India (NPPTI) reports that “1.8 million people fall victim to police torture each year in India. In most of these cases, it is the vul-nerable sections of the society –particularly Dalits, women, religious minorities and the poor – that are targeted. Many victims fear further prosecution or retribution, and so suffer in silence”28. Accord-ing to NPPTI, in India, torture remains an entrenched and often routine law-enforcement strategy, despite India’s status as the world’s largest democracy. In the name of investigating crimes, extracting confessions, and punishing perpetrators, torture is inflicted not only upon the accused, but also upon bona fide petitioners, complainants, informants and innocent bystanders. Frequent police practices include assault, physical abuse, custodial death, rape, threats, psychological humiliation, and depriva-tion of food, water, sleep, and medical attention. Torture is also inflicted on women and girls in the form of custodial rape, molestation and other forms of sexual harassment.29

Very often, the suspects and witnesses are picked up illegally by the police and tortured in custody for a long time even without recording it in the general diary. They are tortured for the purpose of extracting confessions or for recovery of case property or for securing information about the com-mission of the crimes irrespective of whether a crime has actually been committed or not. Usually they are not produced before the magistrate within 24 hours of their arrest. Thus the worst violations of human rights of person occur during the course of investigation and interrogation when the police resort to third degree methods on the person in custody. Figures released by India’s National Hu-man Rights Commission (NHRC) covering 2008 to 2011 showed 4,034 registered custodial deaths and 1,836 registered cases of custodial torture. The worst affected state was Uttar Pradesh, with 999 deaths and 1,552 cases of torture.30

In his report to the United Nations Commission on Human Rights in 2001, the Special Rapporteur on Torture, Sir Nigel Rodley made the following observations after assessing the situation of torture in India:

“While the size and diversity of the country make it difficult to characterise the intensity of the problems all over, it certainly appears that there is a tradition of police brutality and arbitrari-

27. Law Commission of India, 1994.28. Torture and Impunity in India: National Project on Preventing Torture in India, People’s Watch, Madurai, 2008 PP- 2 29. Ibid., PP-230. Parashar, Arpit. “NHRC figures paint rosy picture of Kashmir and Northeast; UP and Bihar are worst offenders.” Tehelka. August 30, 2011.

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ness in much of the country, the degree of brutality frequently being sufficiently unrestrained to amount to torture, often with fatal consequences. The brutality is sometimes linked with corrup-tion and extortion and is often deployed in the service of local vested interests, be they economic or official. The use of excessive and indeed unprovoked and unjustified force is common, espe-cially in response to protests demanding rights. The persecution of those pursuing complaints against the police is a not infrequent phenomenon.... In general, while not absolute, the level of impunity among police and security forces seems sufficiently substantial as to conduce a general sense among such officials that their excesses, especially those committed in the line of duty, will at least be tolerated, if not encouraged”.31

The persisting discrimination on state and society level in India constitutes one of the very seeds for the systematisation of torture and an impediment to the fairness and functioning of the criminal jus-tice system. Discrimination on the basis of gender, religion, caste, ethnicity, social, political and eco-nomic background is widespread throughout India and lays the foundations for endemic torture.32 All torture involves the dehumanisation of the victim, the severing of the bonds of human sympathy between the torturer and the tortured. This process of dehumanisation is made easier if the victim is from what is considered a despised social, political, ethnic or religious group.”33

According to various human right groups in India, religious minorities have particularly been the worst victim of all sorts of abuses, ill treatment and torture. In particular the Indian Muslim commu-nity has been facing systematic violence and escalating discrimination ever since India got Independ-ence. Add to that in recent years in the name of terrorism cases of custodial torture have increased manifold. In the past few years hundreds of innocent Muslims have been arrested and then in the name of interrogation tortured by the police and security agencies.

In 2009, Human Rights Watch analysed the effectiveness of Indian police forces and documented numerous instances of human rights abuses committed by police officers. The report interviewed more than 80 officers and 60 victims of police officer abuse from “19 police stations in Uttar Pradesh, Karnataka, Himachal Pradesh, and the capital, Delhi.” Many officers, acknowledging the illegality of their actions, believe “that unlawful methods, including illegal detention and torture, [are] necessary tactics of crime investigation and law enforcement.” Further, police officers interviewed admitted that instead of collecting “forensic evidence and witness statements, tactics considered time-consuming, they held suspects illegally and coerced them to confess, frequently using torture and ill-treatment.”34

The trends clearly show India’s failure to comply with its international human rights obligations to protect members of minority groups in particular the treatment of Muslim minority. Extrajudicial ex-ecutions, arbitrary and unlawful detentions, torture and cruel, inhuman and degrading treatment of suspects in police custody, and harassment of human rights defenders and whistleblowers are some of the major human rights challenges in India. In 2011, The United States Commission on Interna-tional Religious Freedom decided to keep India on its “Watch List” of countries which “require close monitoring due to the nature and extent of violations of religious freedom engaged in or tolerated by the governments,” stating: “Despite the 2009 election and the Congress Party’s electoral win, India’s democratic institutions, most notably state and central judiciaries and police, fall short in their capac-

31. Report of the Special Rapporteur on Torture, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights Resolution 2000/43, UN Doc. E/CN.4/2001/66, 26 January 2001, para.5732. Law Commission of India, 152nd Report on Custodial Crime (1994), para 1.5. 33. Criminal Justice Reform in India: ICJ Position Paper submitted on the occasion of the National Conference Jointly Organised by Human Rights Law Network (HRLN), New Delhi And International Commission of Jurists (ICJ), Geneva on 9th & 10th August 2003, New Delhi, PP- 12 34. Human Rights Watch, India: Overhaul Abusive, Failing Police System (August 2009),http://www.hrw.org/news/2009/07/29/india-overhaul-abusive-failing-police-system#SelectedAccounts

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ity to uphold the rule of law. In some regions of India, these entities have proven unwilling or unable to seek redress consistently for victims of religiously-motivated violence or to challenge cultures of impunity in areas with a history of communal tensions, which in some cases has helped foster a cli-mate of impunity”.35

In its 2009 report Human Rights Watch warned that the ongoing and widespread use of arbitrary arrest and torture by officers has engendered within the public a deep-seated fear and distrust of the police. The report stated: Officers told Human Rights Watch they often cut their caseloads by refus-ing to register crime complaints. At other times, they use illegal detention, torture and ill-treatment to punish criminals against whom they lack the time or inclination to build cases, or to elicit confes-sions, even ones they know are false.36

The practice of the police and the armed forces using torture as a means to extract confessions is widely accepted as commonplace throughout India. There is ample evidence that there is a culture of denial or a refusal to accept that torture is both commonplace and accepted as a legitimate tool by those that use it. Torture is an integral part of criminal investigations in India. Most cases of torture by state officials occur in police custody, and it is widely acknowledged by governmental and non-governmental studies that the police operate in a system facilitating the use of torture and ill-treat-ment. The arrest and detention provisions in the legal system of India, by and large, have remained the same as inherited from the imperial British era. Under the Indian Police Act of 1861, the role of police force has historically been on of paramilitary action with little emphasis on detective activity.37

Current laws and legislation that are in place in India are contrary to international human rights norms, they promote and encourage the use of torture by the police, military and Para-military forc-es, there is a lack of accountability for those who commit torture and the penalties, in the exception-ally rare instances that a perpetrator is prosecuted, are minimal.

The constitutional and procedural safeguards against torture during interrogations in India are rep-resented by the right against self-incrimination in Article 20 (3) of the Constitution, safeguards re-garding recording of confessions in section 164 of Criminal Procedure Code (‘CRPC’) (disallow-ing police to record confessions), the Indian Evidence Act (1872) (‘IEA’) (that disallows improper evidence), and the response of the courts towards custodial torture and deaths using Article 21 of the Constitution (ensuring that there is no deprivation of life and liberty without a procedure es-tablished by law). Despite these constitutional protections introduced in 1950, the Indian criminal justice system still retains a number of draconian powers. For example there is no specific legislation on torture whereby a case can be filed at a local court. Under the Indian Penal Code, torture is not mentioned as a crime. There is only a section providing that ‘excesses committed by a police officer’ or forced confessions are illegal. However, under this section it has to be proved that the offence was committed in conjunction with the person’s authority in order to demonstrate the gravity of the act. Under the Criminal Procedure Code, a magistrate can order an inquiry into a complaint of torture. However, this inquiry will likely be undertaken by the same police station where the accused is on duty. The result of such an inquiry is easy to imagine. For these reasons, few complaints are ever filed, and even fewer are actually taken to court. The Indian Evidence Act, 1872 also does not have any provisions in dealing with the aspect of torture. As observed by K. S. Subramanian at an Independent People’s Tribunal, “The bureaucratic structure at the district level and below was created by the Brit-ish and was left behind to be used by the Indian elite. This bureaucratic structure is composed mainly

35. Organisation for Minorities of India (OFMI), A submission for the 2012 Human Rights UPR: “Torture common by police officers in India”, November 27, 2011, PP -2 36. “Broken System: Dysfunction, Abuse and Impunity in the Indian Police.” Human Rights Watch, August 4, 2009. 6.37. A Kumar, “Social disorganisation and contemporary social crisis,” Anmol Publications, New Delhi, 2000, PP-49

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of the police, and this police structure is supported by the legal system that is, the Indian Panel Code, the Indian Evidence Act and the Police Act. These are not people friendly legislations and are meant to oppress and suppress the people”.38

The issue of crime and punishment in a society are associated with the criminal justice system which in turn depend on the prevailing legal tradition or system in a country. Police, prosecution, court and correction form as the crucial element of administration of criminal justice systems. The ad-ministration of criminal justice systems determines the Rule of law which is the cornerstone of any functioning democracy. The ultimate test of rule of law is the way the police and criminal justice system enforce law, protect innocent citizens, and use coercive power to ensure compliance of law. The system followed in India for dispensation of criminal justice is the adversarial system inherited from the British Colonial rulers based on common law. The foundation of adversarial system also called accusatorial system is based on the processing strategy mainly the investigation by the police while ascertaining the facts and collecting the evidence, oral or circumstantial to prove the crime in court of law.

Even after six decades after Independence, the police in India is perceived as authoritarian agent of State rather than an agent of law. A policeman is seen as a symbol of state power and as an agent of coercion and retribution. The security apparatus mainly the institution of police assumes a central place as far as the acts of torture are concerned. Indian police officers use torture as a daily tool. In fact majority of the law enforcement officers consider torture as an essential investigative tool, rather than an unscientific and crude method of investigation. In 2009, Human Rights Watch (HRW) reported: “Law enforcement personnel continue to enjoy virtual impunity from prosecution for human rights violations including custodial torture and extrajudicial killings.” According to a November 2011 re-port by Organisation for Minorities of India, “Torture is so universally accepted and encouraged among the ranks of India’s police forces that it is a virtual certainty that anyone who is a police officer in India knows that torture occurs, has definitely been exposed to it, probably has participated in it and almost certainly has helped cover it up.”39

India: Domestic Legislation on Torture and UNCAT

The UN Convention against Torture (“UNCAT”) requires States Parties to criminalise, prosecute and punish acts of torture under national criminal law. Torture is not criminalised in Indian law as a separate or special offense. There is no specific legislation defining torture, nor is there a law identify-ing torture as a crime. There is also no system for victim and witness protection. The Supreme Court of India has acted to condemn torture by developing jurisprudence that outlines best practices for police and other state actors, but the legislature has not responded by codifying these practices into law. These three elements – fear among victims, institutional paralysis, and legislative inaction – have fostered the creation of a culture of impunity. Such impunity ensures that police torture remains prevalent across India.40

Concern regarding the widespread use of torture in India has been expressed by domestic as well as international experts, particularly the thematic mandate holders under the UN framework. During India’s Universal Periodic Review at the United Nations Human Rights Council in May 2012, several

38. Grace Pelly & Jai Singh, “State Terrorism; Torture, Extra-judicial Killings and Forced Disappearances in India”, Report of the Independent People’s Tribunal, 9-10 February, 2008, Human Rights Law Network, New Delhi, PP-33. 39. Bhinder, Bhajan Singh and Patrick J. Nevers. “Demons Within: The Systematic Practice of Torture by Indian Police.” Organisation for Minorities of India. November 2011, PP- 13. 40. Torture and Impunity in India, 2008, Op Cit, PP- 3

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countries recommended that India enact legislation specifically prohibiting torture and ratify the Convention against Torture. India’s refusal to ratify the UN Convention against Torture was prima-rily based on the contention that its laws were adequate enough to deal with crimes committed by the representatives of the State. Although some provisions exist in the Indian Penal Code, they neither define “torture” as clearly as in Article 1 of the Convention nor make it criminal as called for by Ar-ticle 4. Provisions of the Indian Penal Code, 1860 (sections 330 & 348) penalises acts that can also be considered as torture, but the offense attracts no particular relevance if the crime is committed by a police officer. The temporal treatment of the law is to deal with a regular offense. The two provi-sions do not cover all aspects of torture, as defined in the Convention against Torture. Additionally, the laws lack clear cut provisions for witness protection and chances of a proper forensic medical examination of the victim are less as a result criminals easily come out of the clutches of the laws. The Indian Evidence Act, 1872 also does not have any provisions in dealing with the aspect of torture.

India has not ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but has signed the Convention on 14 October 1997. The Constitution of India in its Directive Principle of State Policy provides that the government “shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one an-other,” and also authorises the central government to enact legislation implementing its international law obligations without regard to the ordinary division of central and state government powers. As a U.N. member state, India is bound by the U.N. Charter, which pledges member states to “promote and encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion,” and by the Universal Declaration of Human Rights, which protects the rights to liberty, freedom of expression and opinion, peaceful assembly, an effective remedy for acts violating fundamental rights, and a “fair and public hearing by an independent and impartial tribunal.”41

Yet India has not taken steps to ensure that its domestic legislation complies with CAT’s require-ments. The prohibition against torture and cruel, inhuman, or degrading treatment also is found in the ICCPR and is widely regarded as a customary international law norm and a jus cogens norm from which no derogation is permitted. India has not signed the Optional Protocol to the ICCPR, which permits individuals to bring complaints of violations before the Human Rights Committee.42

Coming under heavy pressure from the International community and civil society, the government of India brought Prevention of Torture Bill, 2010 in Parliament to make torture a punishable offence. It has drawn stern opposition from law and human rights experts for the serious lapses in its draft, including lack of proper definition of torture and firm provisions to fix accountability on officers ‘’in command.’’ Most of the opposition from experts against the Bill hovered around the definition of torture in it. First of all, there is a drastic narrowing down of what constitutes an act of torture. “The bill describes torture only as suffering grievous injuries/danger to life, limb or health”. These expressions have a much narrower interpretation. Electric shocks, hanging the victim upside down from the ceiling, waterboarding and illegal detention might not inflict “grievous injuries” but they were still acts of torture.” According to Maja Daruwala, director of Commonwealth Human Rights Initiative, the definition of torture in the bill does not conform to international standards. “It makes it difficult to bring people who use torture to book. The purpose of the bill must not be just to show on paper that India has made a law against torture, but actually to have an effective deterrent against what is a common practice.”43 Human rights groups say the proposed legislation is not only a climb

41. U.N. Charter, arts. 1(3), 55-56; Universal Declaration of Human Rights.42. International Covenant on Civil and Political Rights, Dec. 19, 1966, U.N.T.S. 43. Deepak K Upreti, Experts differ on Torture Bill, Deccan Herald, New Delhi, Sep 12, 2010.

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down from the standards set by the UNCAT but in many ways is in direct opposition to the basic norm of non-derogability of the Right of Freedom from Torture. Instead of providing effective pun-ishments for torture the legislation has even gone to the extent of diluting existing penal laws with regards to torture.

According to Arun Ferreira, there, no doubt exists a need for a special and effective anti-torture pro-gramme. Historically, torture has been institutionalised in India. During the British rule, it had been used as a weapon to keep the “natives in submission” and suppress any National Liberation move-ment. The present ruling classes continue using this inherited institution for similar purposes i.e to counter people’s movements. Here torture is not an exception perpetuated by some “evil subordi-nates”, but rather a deliberate practice sanctioned by top ranking officials and policy makers. Special draconian laws such as TADA, POTA, UAPA, AFSPA etc. have further institutionalised torture. The proposed Prevention of Torture Bill, 2010 seems to be an attempt to preserve the foundation of this institution. It is a sham with the only objective of playing to the international audience an effort to establish the façade of being the “world’s Largest Democracy.”44

Indian Police Structure

Criminal law matters in India are governed by a post-Independence constitutional and international law framework which includes a strong commitment to fundamental rights. However, that frame-work has been layered on top of a set of colonial-era laws and institutions that were designed to establish British control and often facilitated infringements of basic rights. Many of these institutions remained largely intact after Independence.45

After Independence India inherited its legal framework, institutions and police from the British co-lonial empire. The British criminal law, procedure and policing norms are still practiced by India.The British expanded its empire in India with a policing model deemed ideal for colonial rule. “The Indian police system was born with the enactment of Police Act 1861, one of several framework statutes enacted in the wake of the Indian uprising of 1857 to more firmly establish British control. The 1861 statute self-consciously followed the paramilitary model of policing that the British had established in Ireland, structuring the police not to promote the rule of law, serve the community, or ensure accountability, but rather to “perpetuate British rule.”46

The model was based principally on the experience the English had while they tried to enforce order in Ireland (which rejected rule from Westminster) through Irish Constabulary established under the Constabulary Acts 1822 and 1836. This model of Irish Constabulary sought legitimacy at Westmin-ster rather than among the indigenous population. It was an alternative to an army of occupation with no community mandate whatsoever. On the structural level, it was highly centralised with a recognised chain of command from the individual constable, through chief constable to inspector, who in turn was responsible to chief secretary and lord lieutenant.

The organisation of police force on the so called ‘Para-Military Model’ was best suited for the inter-ests of colonial masters. The force was trained to operate as an agent of the central government in a country where the population was pre-dominantly rural, communications were poor, social condi-

44. Arun Ferreira, “An Act Of Torture”, A critical appraisal of the proposed Prevention Of Torture Bill, 2010, Countercurrents.org, 12 May, 2010.45. Anil Kalhan, et al, “Colonial Continuities: Human Rights, Terrorism and Security”, Columbia Journal of Asian Law, 2006, PP- 110. 46. David Arnold, “The Police and Colonial Control in South India”, Social Scientist 3, 1976, PP- 4 &5.

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tions were largely primitive. While designing the Indian police force the British incorporated the feudal values already present in Indian society, hiring into the police rank and file Indians perceived to be loyal and willing to acquiesce to the place of British leadership within the social hierarchy. It created a semi literate and brute force recruited from the native population which was commanded by the imperial officers discharging the white man’s burden.

This police system was more akin to an occupational force rather than a people-appointed force. It ca-tered to the interest of the foreign power and not of the native Indian community. Scholars contend that the current police still suffer from the impact of their origins as a repressive instrument of the police raj. As a result, the ‘police mindset is steeped into colonial era when the police were supposed to treat every Indian as an enemy of the state.47

The British bequeathed a concept of the rule of police. The people at large were put to almost inhu-man atrocities and hardships at the hands of local administration principally through the agency of the British Police. Police continued to be an object of terror and abhorrence to the general public. The repression carried out during the Indian political movement for Independence, mainly through the agency of the police further tainted the already tarnished image of the police in the public mind. In India the police became a monster machine with tentacles spreading in all the spheres of social and non-social, political and non-political work of the State.48

Needless to say, the police was neither accountable to the people nor to independent institutions. The police system was designed to a strict hierarchical and military structure, based on the colonial distrust of the lower ranks. The decision making authority lays with a few high placed police officers, while the police constables merely followed orders. After Independence, efforts were made to change the political system but the police system still remains almost intact.49

The new government implemented no significant changes in policing, and the police remained prin-cipally as an agent of coercive state power and political intelligence and not as a friend and protector of the people. Thus the police sub-culture that was in existence during the British regime continued to operate after Independence and in that culture torture of citizens and calling of bad names against them were permitted and tolerated by the authorities and the general public alike.50

This colonial legacy and the reluctance of the Indian leaders to change the structure and culture of the police system after the Independence compounded the matter. As a result the police have become more powerful, more politicised, and less accountable, meaningful reform has proven com-plicated and elusive. After Independence, several Police Commissions were appointed by Union and State Governments to look into the performance and methods of working of the State Police during 1950s, 1960s, the early 1970s and 1980s.

All these Committees and Commissions drew attention of the Government that the way police behaved including the tales of third degree or torture in police custody due to various factors but the work of these commissions did not lead to meaningful reforms. The indifferent attitude of the appointing authority of Police Commissions in certain states as been disappointing and leaves no place for hope for any kind of follow-up actions on the recommendations made by such condemned commissions. Eve the new police laws enacted by several Indian states after Independence did not

47. K. Ravindran, ‘Custodial Violence and Measures to Curb’, The PRP Journal of Human Rights, January-March 2002, pp. 7-8. 48. Alphonse L. Earayil, James Vadackwnchery, Police and the Society (1985), p. 70. 49. Joshi, G.P, “Police Accountability in India: Policing Contaminated by Politics”, Human Rights Solidarity Vol. 15, No 05, Sep 2005 50. A1phonse L. Earayil, James Vadackwnchery, Op cit, 1985, PP -70

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significantly deviate from the 1861Act. In fact the country had lost the opportunity in establishing a police system needed to create a democratic Welfare state as envisaged in the Constitution of India”.51

The police force was not conceived as a service organisation. It was designed as a force to be used against the community but at the same time, it was so constituted and controlled as not to over-whelm its creators.52 The British used the police to mercilessly violate all human rights and as a result, all police commissions hitherto appointed in India to study the police functioning have been unani-mous in their views that the police in India have shown no regard to human rights.53

The National Police Commission (1979-81) has examined in details the issues pertaining to police functioning inter alias in eight reports. In its first report, the Commission expressed its concern over the prevalence of custodial torture by the police in the following terms:

Police are frequently criticised for their use of third degree methods during investigation while examining suspected or accused persons. Police brutality in their handling suspect is referred to in some context or the other in the literature on police forces in several countries of the world, and the Indian Police is no exception. Interrogation of a person, whether he be a witness or sus-pect or accused, is a difficult and delicate exercise for any police officer and calls for enormous patience and considerable understanding of human psychology. Unfortunately several police of-ficers under pressure of work and driven by a desire to achieve quick results, leave the path of patient and scientific interrogation and resort to the use of force in different forms to pressure the witness/suspect/ accused to disclose all the facts known to him. While law recognises the need for use of force by the police in the discharge of their duties on some specified occasions like the dispersal of the a violent mob or the arrest of a violent bad character who resists the arrest, etc., the use of force against an individual in their custody in his loneliness and helplessness is a grossly unlawful and most degrading and despicable practice that requires to be condemned in the strongest of terms and we do so. Noting is as documenting as the conduct of police in practic-ing torture of any kind on a person in their custody.

India-Criminal Law and Procedure: The Criminal Justice System

The State structure of the criminal justice system connoting the criminal law and its implementing machinery - mainly the police, court and jails-obtaining in our country is a legacy of the British and it obviously has the colonial roots. Despite constitutional prescriptions and judicial pronouncements over several decades, there has been no noteworthy change that would bring the law in tune with the constitutional emphasis on right to life and personal liberty as well as other human rights.

The British administration used the legal system as a means to suppress opposition to colonial rule. The two principal statutes: the Indian Penal Code (1860) and the Code of Criminal Procedure (1872) were drafted in the 1830s and 1840s by the first law commission. The repressive role of the police, spelt out in the Police Act of 1861, was further stressed by the Indian Penal Code and Crimi-nal Procedure Code which were also enacted in 1861. Such laws were enacted to enable the police to suppress nationalist aspirations and political dissent to preserve the British rule in India. The police force as well as the entire criminal Justice was designed to preserve and perpetuate the exploitative colonial structure created by the British.54

51. Jayant Umranikar, Police reforms in India, Aameya Prakashan Inspiring Books, Pune, 200952. P.D. Sharrna, Indian Police, A Development Approach, (1977), p. 13. 53. R.K. Bhardwaj, ‘’The Role of Police Force and Sphere of Activities”, Indian Police Administration (1978), p. 22. 54. Aparna Srivastava, “Role of Police in a Changing Society”, APH Publishing Corporation, Delhi, 1999.

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The laws in these Acts continue to define every offence, specified punishments and set out the pro-cedure for investigation by the police and the courts for alleged criminality. The Indian Penal Code came into force in 1862 with the sole objective to criminalise activities considered harmful for the state and its interests. This is emphasised by the structure of the Indian Penal Code, which prioritises offences against the state and offences against public order over ordinary crimes. The Panel Code has a full chapter on “Offences Against the State”. It is interesting to note the distinction made by the First Law Commission between “Ordinary” crimes and “State” crimes – which were deemed particularly “heinous and formidable” and warranted extraordinary punitive measures.55 In Section 141 of the Indian Penal Code, under the heading of “Offences against Public Tranquility” for example, a group of five or more people is considered “unlawful assembly” where the aim of the assembly, among oth-ers, is to “resist the execution of any law, or any legal process”. Therefore, a protest against an unfair law can be deemed an offence against public tranquility and a problem of “law and order”. As K.S. Subramanian notes, “The legal provisions are also basically repressive. For example, the Indian Panel Code has 511 sections, out of which the first 299 sections are related to offences against the state, and criminal offences are mentioned only from chapter 16 onwards. Similarly, the 1973 Code of Criminal Procedure basically deals with offences against public order and the maintenance of peace and tranquility.”56

The machinery for prevention and punishment through the criminal court system rests on the Code of Criminal Procedure. The first Code of Criminal Procedure which was passed in 1861 was repealed and replaced by the Code of 1872. That too was repealed and replaced by the Code of 1882 which was replaced by the Code of Criminal Procedure (Act V of 1898) 1898 and was amended in 1973.57 It is The Criminal Procedure Code, 1973 which presently provides for norms of arrest. The word “arrest” has not been defined either in any procedural acts or in the several substantive acts, though Section 46 of the Code of Criminal Procedure lays down the mode of arrest to be effected. Arrest can be defined as “The act of taking the person into custody under the authority of law or by compul-sion of another kind and includes that period from the moment he is placed under the restraint up to the time he is brought before an authority competent to order his continuous custody or release him”.58 The Black’s Law Dictionary defines the “arrest” as – “The restrain of a person’s liberty in order to compel obedience to the order of a court of Justice, to ensure that a person charged or suspected of a crime may be forthcoming to answer it. To arrest a person is to restrain his liberty through some lawful authority”.59 Arrest is one of the processes that impose a major threat to the liberty of the indi-vidual. Arrest is usually the preliminary stage of placing a person in police custody and it is therefrom that custodial violence arises. Arrest is very much required in various cases for the protection of the larger interests of the society; at the same time, the same law of arrest can be misused by the police for the numerous crimes that may be committed behind the bars of the police station, one of them being the police atrocities. Treatment of those arrested under special security legislation can depart from these norms, however. In addition, for all practical purposes, the implementation of these norms var-ies widely based on the class and social background of the accused.

Various offences under the Indian Penal Code and other laws have been divided into cognisable and non-cognisable according to their gravity. The Code of Criminal Procedure classifies the offences mentioned in the IPC into four broad categories, namely, (1) bailable and non-cognisable offences; (2) bailable and cognisable offences; (3) non-bailable-cognisable offences and (4) non-bailable-

55. Grace Pelly & Jai Singh, Op cit, 2008, PP-33.56. Ibid, PP-34.57. A. N. Chaturvedi, Rights of Accusaed under Indian Constitution (1984), PP- 47.58. “Right against arbitrary arrest”, The Journal Of Indian Law Institute ( JILI) New Delhi, (1969), PP- 34.59. Blacks Law Dictionary 4th Edition.

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non-cognisable offences (e.g., sections 466, 467 (first part), 476, 477 and 505 (first part) etc.) (There is a fifth category of offences e.g., sections 116 to 120, where the cognisability and bailability/non-bailability depends upon the nature of the main crime.

Section 2(c) of the Criminal Procedure Code, 1973 defines cognisable offence. It is such offence where the police officer may arrest an accused without warrant as per the First Schedule of the Act or under any other law for the time being in force. 2(l) of the Act defines non-cognisable offence. In this case the police officer cannot arrest without warrant. In cognisable, the police officer can begin investigation without an order from a Magistrate. But in non-cognisable it is not generally possible. Complaint is not necessary in cognisable where it is generally necessary in non-cognisable offence. Cognisable offences are serious and non-cognisable offences are less serious.

However, the 1973 Code enacted after revision of the Criminal Procedure Code, 1898 basically re-tains the old provisions particularly relating to arresting- and detaining powers of police. The vast Discretionary powers of arrest available to a police officer even without a warrant or an order from a magistrate and detention of the arrested persons at the police station for 24 hours” are the basic sources of unjustified arrests and detention and human rights violations by the police. Section 41 of the Code of Criminal Procedure 1973 authorises a police officer to arrest any person without an or-der from a magistrate and without a warrant, inter alia, for being concerned in any cognisable offence, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; or for” having in his possession any implement of house-breaking; or for being found in possession of suspected ‘stolen property and being reasonable suspected of having committed an offence with reference to such thing; or for obstructing a police officer in the execution of his duty or escaping. The vast discretion given by the CrPC to arrest a person even in the case of a bailable offence (not only where the bailable offence is cognisable but also where it is non-cognisable) and the further power to make preventive arrests (e.g. under section 151 of the CrPC and the several city police enactments), clothe the police with extraordinary power which can easily be abused. Neither there is any in-house mechanism in the police department to check such misuse or abuse nor does the complaint of such misuse or abuse to higher police officers bear fruit except in some exceptional cases.

In India, neither Constitution nor statutory law contains an express definition of torture. However, different provisions in law provide police power for use of force only in three circumstances; Firstly, to apprehend a person who resists an endeavour to arrest him or attempts to evade arrest under Sec-tion – 46 of Code of Criminal Procedure, 1973; secondly, for the dispersal of an unlawful assembly under Section-129 of Code of Criminal Procedure, 1973 and thirdly, in the exercise of the right of private defence under Section-100 and 101of the Indian Penal Code, 1860. The legal provisions in laws and procedures in India, allow police in respect of police use of force in certain situations. How-ever, police generally believed that use of force is necessary to detection and prevention of crime and so called third degree or torture are considered as an effective instrument for seeking confession. It includes torture either by not recording the arrest or deprivation of liberty in the guise of a prolonged interrogation. Police is, no doubt, under a legal duty and has legitimate power to arrest a criminal, to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third degree methods and torture of accused in custody during interrogation and investigation of the crime.60

Even after six decades of Independence, in a democratic country like India, the police remains virtu-ally a terror to the people and almost absolutely unaccountable for the violations of human rights of

60. D.K. Basu v. State of West Bengal, with Ashok K. Joshi v. State of U.P., A.I.R. 1997 S.C. 610, PP- 62l.

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people in their custody. Most of the violations of human rights take place in the management of law and order, by the police. Experiences show that the police abuse their authority by using third degree and inhuman methods on persons in their custody. Custodial torture, custodial deaths and other forms of human rights violations in police custody are very common. Nowadays custodial violence has become a part of the police culture and the incidence of custodial deaths is quite common.

The term ‘custody’ is defined neither in procedural nor in substantive laws. Custody means more than possession, it means protective care.61 The expression ‘police custody’ as used in section 27 of Evidence Act does not necessarily mean formal arrest. It also includes some form of police surveil-lance and restriction on the movements of person concerned by the police.62 Thus a man may be in custody without having been formally arrested. Custody includes a state of affairs in which the ac-cused can be said to have come into the hands of the police or have been under some form of police surveillance or restriction on the movements by the police. Courts have extended the meaning of the term ‘custody’ in its strict sense to include a situation where the detenu may have been called to the police station for the purpose of interrogation and from the time that a person is placed under arrest. In other words, custody commences from the moment the person affecting the custody exercises some legally physical control over another.63 Police custody commences when a Police Officer arrests a person by actually touching or confining his body or when the accused submits to the custody by word or action or offers to give information leading to discovery.64

The fact is that the power to arrest a person without a warrant on reasonable suspicion or under the belief that he is concerned in any cognisable offence is an awesome power vested in one of the civil services – probably the only armed civil service in our polity. Every individual of the society has the inherent right to be treated with dignity in all situations including arrest and keeping in custody by the police. Many countries have enacted laws against custodial violence and the use of third degree methods. In India, there is no specific legislation to curtail or control the police torture or atroc-ity. Though there are some procedural safeguards against police violence or torture and rights of an individual in police custody are protected basically by the Indian Constitution and by various other laws like Code of Criminal Procedure, Evidence Act, Indian Penal Code and Protection of Human Rights Act. Article 21 of the Constitution of India provides to us our fundamental right of Life and Liberty. Accordingly, a person’s life and liberty is supreme in the eyes of law. When a policeman ar-rests a person, he is curtailing the liberty of a person. And if the fundamental right of a person has to be curtailed, it has to be in accordance with law. The police have a right to arrest a person but there are certain conditions which must be followed before a policeman arrests a person.

But the most pressing issue till date still remains here whether these provisions fulfill the purpose they are enacted for? Ultimately, torture cuts across all other rights, because it is the very agents of torture who themselves are responsible for upholding the rights of others. Notwithstanding the safe-guards contained in the Code of Criminal Procedure and the Constitution the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the country. The misuse and abuse of the said power remains practically unabated. Third-degree methods, otherwise known as physical torture, have been notoriously resorted to in police functioning- is perhaps the

61. R.E. AlIen (Ed.), Concise Oxford Dictionary of Current English (VIII Edn.) (1990), p. 286. Custody according to shorter Oxford Dictionary, means ‘safe keeping, protection, charge, care, guardian ship’.62. N.K. Jain, “Custodial Crimes - An Affront To Human Dignity”, Human Rights Year Book (2000), p. 64.63. Rama Pal, “Tackling custodial crimes - an over view”, Human Rights Year Book (2000), p. 100.64. The word ‘custody’ referred to in Sec. 344 (Sec. 309, new) of the Code of Criminal Procedure is always jail or judicial custody and can never be police custody. M.C. Desai (Ed.), Venkata Ramaiya’s Law Lexicon with Legal Maxims, Vol. I (1996), p. 573.

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oft-alleged accusation against the police force in the country.65 Several instances have come to light where there has been a gross misuse of the power of arrest to the great detriment of the life and lib-erty of the citizens.

Supreme Court jurisprudence of Torture

The Supreme Court and the High Courts have, on several occasions, explained the true content and spirit of these provisions. The Supreme Court and High Courts of India as well as the National Hu-man Rights Commission have handed down many recommendations to achieve a better prevention against torture and to provide for redress measures for victims, but it has not lead to an eradication of torture. The increasing tendency of police to resort to torturous means to get confession is evident from some of the cases decided by the apex court. Thus in Niranjan Singh case66 the court lamented that “the police instead of being the protector of law have become the engineer of terror and panic the people into fear.” The highest court was again deeply disturbed in Raghubir Singh v. State of Haryana,67 where the violence employed by the police to extract a confession resulted in the death of a person suspected of death. The Supreme Court held:

“We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy (when) the violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them as has happened in this case. Police lock-up, if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order”.68

A perusal of the landmark decisions of the Supreme Court and various High Courts reveals that In-dian judiciary has made a tremendous achievement in protecting custodial human rights. The effort of the courts, and in particular of the Supreme Court over the last more than two decades has been to circumscribe the vast discretionary power vested by law in Police by imposing several safeguards and to regulate it by laying down numerous guidelines and by subjecting the said power to several condi-tionalities. The effort throughout has been to prevent its abuse by giving added practical protection for citizens from violations of their constitutional rights.

D K Basu v. State of West Bengal

The Supreme Court’s more specific interventions in the 1990s found its clear exposition in D. K. Basu v State of West Bengal69 case in an attempt to combat the evil of custodial crime and bring trans-parency and accountability therein. The case began as a writ petition drawing the Supreme Court’s attention to deaths in police stations and alleged attempts by the State Government to cover up their occurrences. Speaking on behalf of the Supreme Court, Justice A. S. Anand identified Article 21 as including the prohibition of torture and inhuman and degrading treatment and observed the need to fill the lacuna in domestic law, which did not contain any specific prohibition against its use:

65. A1phonse L. Earayil, James Vadackwnchery, Op cit, 1985, PP -6366. Niranjan Singh v. Prabhakar Rajaram, A.I.R. 1980 S.C. 785 .67. AIR. 1980 S.C. 1087.68. Ibid, PP- 101869. D K Basu v. State of West Bengal: (AIR 1997 SC 610)

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“Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or other-wise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness, and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen.”70

This landmark case became the best and principle guideline, which talked about the requirements which should be followed in all cases of arrest or detention. It would be sufficient to quote paras 36 to 40 which contain the final directions issued in the said decision. They read as follows:

“We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention, till legal provisions are made in that behalf, as preventive measures:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particu-lars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a mem-ber of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up,shall be entitled to have one friend or relative or other per-son known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspec-tion Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours dur-ing his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Ilaqa Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11. A police control room should be provided at all district and State headquarters, where informa-tion regarding the arrest and the place of custody of the arrestee shall be communicated by the

70. Grace Pelly & Jai Singh, Op cit, 2008, PP-19 .

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officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.71

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the con-cerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The Supreme Court concluded optimistically:

“It is hoped that these requirements would curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.”72

The requirements, referred to above flow from Articles 21 and 22(1) of the Constitution of India and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. These requirements are in addition to the constitu-tional and statutory safeguards and do not detract from various other directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.

After D K Basu judgment human rights reports continue to state there is little change in terms of the incidents of custodial violence. Even though India is a common law country, in practice, the D K Basu recommendations are not followed. Custodial violence, sometimes resulting in death, contin-ues to be a widespread phenomenon throughout India. The charges of violations of human rights in India are being raised primarily with the incidents of torture, rape and deaths in police custody. The United Nations Special Rapporteurs on torture and on extra judicial, summary and arbitrary execu-tions have both expressed concern at the number of victims of torture and deaths in custody reported from India and the lack of an effective system to prevent such violations and bring those responsible to justice. A report of the Law Commission notes that the jurisprudence developed in DK Basu and other cases have not been that much effective. The Law Commission report on a Review of IEA, 1872 stated in 2003:

“Till today the guidelines or precautions indicated by D K Basu have not been implemented by the police. In fact most police officers are ignorant of them. Question also is whether in India we can accept the statement of any police officer tat these pre cautions were indeed taken. In out view today courts in our country can not accept any such assertion on the part of the police. In a pending public interest case when the Supreme Court asked the states to submit whether DK Basu guidelines were being followed by the police in various states, the amicus curiae are reported to have stated that the reports from the states are that the said guidelines were not being followed”.73

ANTI-TERRORISM LAWS

In an attempt to meet the newest enemy—global terrorist organisations after the events on 11 Sep-tember 2001, there has been a renewed usage of coercive techniques, including torture, by the na-tions all over the world. There has been a call for legitimisation (if not legalisation) of torture allow-ing States to justify almost all governmental actions in terms of national security and by doing so (whether in a “war on terrorism” or in an “emergency”) suddenly justify human rights violations, including torture and cruel, inhuman or degrading treatment and punishment.

71. D K Basu v. State of West Bengal, op cit., paragraph 36 to 40.72. Ibid., paragraph 40.73. Jinee Lokaneeta, “Legal Discourses on Torture in Contemporary Liberal Democracies: The United States and India” University of Southern California, 2006, PP- 238.

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Since the events of September 11, many States have adopted new laws or amended already exist-ing ones with the purpose of combating terrorism. “Counter-terrorism measures have ranged from the strengthening of mutual cooperation and intelligence-sharing between police departments and security intelligence services and the adoption of new legislation to deal with the financing of ter-rorist activity, to the adoption of new national security legislation to provide additional powers to investigative authorities and which introduce separate procedural frameworks for the investigation of terrorist offences, including procedures for arrests, detentions and trial. Under the stated intention of combating terrorism certain governments have applied these separate procedural frameworks to oppress on minority groups and political opponents. The reach of counter-terrorism measures ex-tends far beyond the criminal law”.74

The government of India was quick to offer its support to the US government’s ‘global war on ter-ror’. It invoked UN resolution 1373 by enacting special antiterrorism laws deviating from ordinary criminal law. India that claims to be the largest democracy in the world has in place a number of laws to deal with terrorism that have been used to proscribe the enjoyment of human rights. The use of extraordinary laws in India to combat terrorism and other security threats long predates Independ-ence, part of the legacy that Britain bequeathed to India and other former colonies. The new laws have been part of a broader array of emergency and security laws that have been implemented in India time and again dating since well before Independence. Before Independence special security laws have been implemented and repealed in a cyclical pattern by the British which has been followed by the respective Indian governments even after Independence. The Indian government seems to periodically revisit its legitimised mechanism of oppression in order to repeal one law and fortify it with yet another law, more draconian and heinous than its predecessor, all meant to quell “terrorism” and “threats to national unity”... with abysmal results.75 Legal Consultant and author Asmita Basu has placed these laws into three general categories:

First, special national laws that apply in non-emergency situations such as preventive detention laws of the past aimed towards preventing an individual from acting in a manner prejudicial to the defense or security of the country to the current Unlawful Activities (Prevention) Act, which was amended in 2008 to curb, inter alia, terrorist activities.

Second, area specific central laws- enacted by the Central Government, these laws are applied to select areas to deal with insurgencies and militancy. The earliest enactment is the Armed Forces Special Powers Act, 1958 that covers the northeast and was later extended to the state of Jammu and Kashmir- this law continues to be in force.

Third, special laws enacted by State Governments to deal with public order and organised crime. Examples being the Chhattisgarh Special Public Security Act, 2005, the Jammu and Kashmir Public Safety Act, 1978, the Maharashtra Control of Organised Crimes Act, 199976.

India has had and continues to have a veritable spectrum of draconian laws that are supposedly aimed at stopping terrorism but are used effectively by state agents to abuse human rights. These laws in-clude the Maintenance of Internal Security Act (MISA), Terrorist and Disruptive Activities (Preven-tion) Act (TADA), Prevention of Terrorism Act (POTA), the Disturbed Areas Act (DAA), and the Armed Forces Special Powers Act (AFSPA), the Assam Preventive Detention Act, National Security Act, Essential Services Maintenance Act and the Armed Forces ( Jammu and Kashmir) Special Pow-ers Act (1990). While these laws are implemented all over India, they have the most deplorable

74. Gabriela Echeverria, Op cit, London, 2004, PP-14.

75. Anil Kalhan Et al, Op cit, 2006, PP-108.76. Asmita Basu, “Routinisation of the Extraordinary- A Mapping of Security Laws in India”, paper in Southasianrihts.org, PP-3

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effects on the human rights of minorities, vulnerable communities in areas where people have op-posed these laws. In recent years a hysteric atmosphere created in the name of containing terrorism and extremism, the police have acquired unfettered power with the passing of various draconian laws like TADA, POTA etc. at the national level and “anti-extremism” laws passed by various state gov-ernments. While each subsequent law has incrementally improved upon its immediate predecessor, specific human rights concerns raised by the application and enforcement of these laws have been significant and, under POTA and UAPA, persist today.

“Administration of these antiterrorism laws has varied widely from state to state, facilitating arbi-trary and selective enforcement against members of Dalit, other lower caste, tribal, and religious minority communities, violations of protected speech and associational activities, prosecution of ordinary crimes as terrorism-related offenses, and severe police misconduct and abuse, includ-ing torture. In each state, however, prolonged detention without charge or trial appears to have been the norm under these laws, rather than the carefully limited exception. Additionally, human rights defenders who have challenged these violations or defended individuals accused under these antiterrorism laws at times have faced retaliatory threats and intimidation”.77

Prevention of Terrorism Act (POTA)

In the wake of the September 11, 2001, attacks in the United States, and an attack on India’s Parlia-ment three months later, the Indian government enacted Prevention of Terrorism Act in March 2002 to enhance India’s ability to crack down on possible terrorist threats. Indian legislators acted quickly, declaring the Act to be a necessary weapon against terrorism. POTA did not emerge onto the In-dian political landscape in a statutory vacuum. Some fifteen years prior to its enactment, the Indian Parliament passed the Terrorist and Disruptive Activities (Prevention) Act, 1987 or TADA. TADA’s provisions expanded the central government’s powers to deal with individuals that the statute classi-fied as terrorists. A decade long experience with national anti-terror law, the infamous Terrorist and Disruptive Activities Prevention (TADA) that was in force between 1985-1995 —gives legitimacy to the fear that the misuse of such laws evoke among human rights activists, political dissenters and minorities.

By 1994, over 76,000 people had been arrested under TADA, with only about one percent of these detainees ever being convicted of any crime.78 Between 1987 and 1995, when TADA was in effect, eighty percent of people detained in such states as Rajasthan, Maharashtra, and Gujarat were Mus-lim.79 The maximum numbers of arrests under TADA were not made in Punjab, Jammu and Kash-mir or North East India where ‘terrorism’ is a reality, but in Gujarat (19,263 persons as of 1993), which had no record of terrorism. The majority of the victims belonged to anti-Dam protestors, trade unionists and religious minorities. Civil liberties advocates who opposed TADA warned that if the government’s powers were not kept in check, democracy in India could once again be in jeopardy. TADA, however, died in 1995, when public pressure forced Parliament not to reenact it at its two year required renewal date. Although this particular statute eventually lapsed, it nevertheless had enormous influence on the drafters of POTA.

77. Anil Kalhan Et al, op cit, 2006, PP-108-109.78. TADA- Hard Law for Soft State, “Economic & Political Weekly”, March. 25, 2000, at 1066 (containing an edited version of People’s Union of Democratic Rights Report) [The data from this report state that one percent of those arrested were convicted, yet data from the Sikh Human Rights Group note that 1.8 per cent were convicted.79. U. Rahman, TADA. A Ghost Best Forgotten, Milli Gazette, Nov. 6, 2003, available at http://www.milligazette.com/Archives/15112001/17.htm

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Despite the suspension of TADA, government officials continued to seek ways to increase the state’s anti-terrorism powers.

The Prevention of Terrorism Ordinance and the Prevention of Terrorism Act, adopted in 2000 and 2002 respectively, are widely seen as facilitating the use of torture against those who are either suspected of being terrorists or are simply labeled as terrorists by the police and the army. POTA contained the same abusive provisions as TADA. TADA’s definition of terrorism was reused and broadened with the enactment of the Prevention of Terrorism Act, 2002 (POTA). Among other potentially dangerous measures, POTA allowed for 180-day detentions without charge, presump-tions of guilt, sketchy review procedures, summary trials and trials in absentia. Although the Indian Constitution requires police to promptly inform a person of the grounds for his or her detention and to provide the “earliest opportunity to make a representation” before a magistrate and Indian case law identifies a speedy trial as “an integral and essential part of the fundamental right to life and liberty enshrined in the Constitution.”80 POTA managed to dramatically undermine these safeguards against the arbitrary and punitive detention of innocents. Critics allege that POTA was similarly used to harass political opponents and target tribal groups, religious and ethnic minorities, and Dalits. Author Jayanth K. Krishnan has noted that POTA violated a number of constitutional provisions. “For instance, the statute infringes upon the individual’s constitutional rights to freedom of expres-sion and freedom of association. POTA also obstructs detainees from proper legal representation, the right to confront accusers, the right to a fair bail hearing, and the right to have an open, publicly scrutinised trial. Furthermore, POTA’s creation of Special Courts to adjudicate terrorist prosecu-tions, and the law’s irrebuttable presumptions of guilt for certain statutory violations, place into real question the government’s claim that it is concerned for individual rights”.81 Various Indian states that enacted POTA wasted no time in capitalising on its broad definitions of terrorist offenses and sweeping powers of arrest and detention.

According to Human Rights Watch, “most abuses arising in the form of prolonged detention without charges, however, went unreported, as the targets were often members of disempowered minorities lacking a forum in which to voice the mistreatment. Detainees languished in jail for weeks or months while the wheels of India’s overburdened criminal justice system creaked slowly along. Despite the existence of special courts to expedite the process, at least in theory, they did little to counter POTA’s permissive stance on such lengthy incarcerations”.82

Author Jayanth K. Krishnan has noted that the vague definition allows for discriminatory applica-tion. Despite POTA’s provisions clearly state that anyone found guilty of a crime under the law will be punished, no military officials, Hindu nationalists, or police officers to date have been charged under POTA. Section 57 of the Act gives governmental authorities immunity from prosecution un-der POTA, as long as the actions taken to combat terrorism are done in good faith. Terrorism in the Indian context thus primarily means one thing: Muslim terrorism. Even the preamble of the statute intimates the anti-Muslim focus by referencing both the devastation of “cross-border terrorist ac-tivities” supported by Pakistan and also by discussing how the impetus for passing POTA was the December 2001 Muslim attack on Parliament.83 Muslims have been the principal victims of India’s anti-terrorism strategy and activities in recent years. Muslims are first to be arrested and interrogated after any terrorist incident, even when the victims are Muslims, and although strong evidence has

80. South Asia Human Rights Documentation Centre, Prevention of Terrorism Ordinance 2001, PP- 89. 81. Jayanth K. Krishnan, “India’s “Patriot Act”: POTA and the Impact on Civil Liberties in the World’s Largest Democracy”, Law and Inequality Vol. 22:265: 2004, PP- 299.82. Human Rights Watch, In the Name of Counter-Terrorism: Human Rights Abuses Worldwide, Briefing Paper for the 59th Session of the United Nations Commission on Human Rights, March. 25, 2003, PP – 8-11. 83. Jayanth K. Krishnan, Op cit, 2004, PP- 275-6.

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recently emerged of a well-ramified pro-Hindu terrorist network, in which serving and retired army officers were found to be key players.

Misuse of POTA along communal and minority lines was most glaring in Gujarat. Gujarat presents some of the most extreme examples of human rights concerns arising from POTA. Perversely, po-lice in Gujarat appear to have used the extended detention periods to unlawfully coerce people into confessing instead of conducting fair and diligent police work.84 In Gujarat, police invoked POTA to arrest 123 Muslims allegedly involved in a vicious attack on a train full of Hindu passengers. The government declined, however, to use POTA against Hindus involved in pogroms that killed over 2,000 Muslims. Shortly after the pogroms, Gujarat Chief Minister Narendra Modi justified the gov-ernment’s choice by simply stating that it was unnecessary to invoke POTA against the Hindu riot-ers. The state government characterised the violence as a “spontaneous reaction” to the train attack, despite evidence that the riots had been organised by right-wing Hindu groups.85 Most of Gujarat’s POTA detainees were Muslims. Evidence suggests that in initiating cases under POTA, the Gujarat police often have not simply applied POTA selectively against Muslims, but also have used the law to intimidate Muslim citizens from coming forward with evidence of police complicity in the organised post-Godhra violence. It has been reported that the police have unlawfully detained hundreds of young Muslims and threatened them with false charges under POTA if they did come forward.

According to Amnesty International, police held people for questioning for days or weeks without access to family members or to counsel, frustrated habeas corpus applications, and threatened to ar-rest family members under POTA if they petitioned the government. Some detainees complained of being tortured into giving confessions, in spite of POTA provisions limiting the admissibility of self-incriminating statements. It appears that in Gujarat, some police compounded government preju-dice with personal prejudice and improper police work.86 Unfortunately, however, Gujarat was not the only state that targeted Muslim minorities arbitrarily. POTA has been wielded as a communalist instrument in several states. Many states applied POTA’s provisions arbitrary along communal and minority lines. “Perhaps unsurprisingly, in some states these communal influences in society at large have become institutionally embedded within the police and other government institutions, espe-cially as the police have become increasingly subject to political interference. One result of this “in-stitutionalised communalism” has been a well-documented pattern in which the police have either failed to protect religious minorities from communal violence or, in some cases, become directly complicit in that violence”.87

Laws such as the Prevention of Terrorism Act (POTA) were not specifically written to target minori-ties, but their application affected particular ethnic or religious groups. A study carried out by the NGO “People’s Tribunal” in 10 states in July 2004 found that 99.9 percent of those arrested under POTA were Muslims. A People’s Tribunal on the terror investigations of the police in various states of the country was held in Hyderabad in August 2008. The jury consisted of two former Chief Justices, several other eminent, academics, lawyers and social scientists. They came to the unanimous conclu-sion that:

“The testimonies showed that a large number of innocent young Muslims have been and are be-ing victimised by the police on the charge of being involved in various terrorist acts across the

84. Amnesty International, Abuse of the Law in Gujarat: Muslims Detained Illegally in Ahmedabad 1–2, Nov, 6, 2003.85. Christopher Gagne, “POTA: Lessons Learned From India’s Anti-Terror Act”, Boston College Third World Law Journal Volume 25 Issue 1, January 2005, PP- 275.86. Amnesty International, Op cit, Nov, 6, 2003, PP- 11-12.87. Teesta Setalvad, “When Guardians Betray: The Role of the Police in Gujarat”, in Siddharth Varadarajan ed, “Gujrat: The Making Of A Tragedy”, 2002, 177-210.

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country. This is particularly so in Maharashtra, Gujarat, Madhya Pradesh, Andhra Pradesh and Rajasthan, though not limited to these States. This victimisation and demonisation of Muslims in the guise of investigation of terror offences, is having a very serious psychological impact on the minds of not only the families of the victims but also other members of the community. It is leading to a very strong sense of insecurity and alienation which may lead to frightful conse-quences for the nation.”88

POTA was an extremely unpopular law. It was abrogated soon after the new Indian government came to power in 2004 in response to its severe criticism by Muslim citizen groups and human rights or-ganisations for irresponsible application and widespread abuse, including the arbitrary detention and torture of Muslim citizens with virtually no justification. Anil Kalhan has argued that even in the aftermath of POTA’s formal repeal, however, several human rights concerns remain. As noted, the repeal of POTA was not complete. The repeal did not apply retroactively to pending cases or other cases arising from incidents that occurred during the period in which the law was in effect. For those individuals, the human rights issues arising from POTA have been unaffected by the statute’s pro-spective repeal. In addition, several of POTA’s provisions remain in effect even prospectively, since at the very moment that it repealed POTA, the government simultaneously reenacted those provisions as amendments to the Unlawful Activities (Prevention) Act of 1967 (UAPA).89

Unlawful Activities Prevention Act (UAPA)

In the wake of the brutal attack on Mumbai in 2008, the Indian government reinstated harsh coun-terterrorism measures that it had previously repealed or allowed to lapse due to serious human rights violations. POTA was repealed as part of a political pledge to deal with human rights abuses by police and intelligence forces, many of the substantive provisions regarding the treatment of terrorism sus-pects were incorporated into amendments to the Unlawful Activities (Prevention) Act 1967 (UAPA) by enacting the Unlawful Activities (Prevention) Amendment Act, 2008. Pursuant to the constitu-tional powers vested on the state to place reasonable restrictions on freedoms enumerated under Ar-ticle 19, the Unlawful Activities (Prevention) Act (UAPA) was enacted in 1967. The Act accords the Central Government the power to declare ”any association that engages in activities that support any secession claims” or “disclaims, questions, disrupts” the sovereignty and territorial integrity of India or causes disaffectation against India. Once an association is declared unlawful, the Central Govern-ment has broad powers to restrict its activities and criminalise individual involvement with such as-sociations.90 UAPA was amended twice – in 2004 and 2008- to include counterterrorism provisions. The amendments cover acts “likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people … by any means of whatever nature to cause or likely to cause” death or injury to persons, damage to property, or “the disruption of any supplies or services essential to the life of the community in or in any foreign country.”

UAPA brought counterterrorism legislation closer to colonial and Emergency-era provisions that provided a framework for criminalising seditious and disruptive activities. The Indian Supreme Court continued its deferential stance toward such legislation, validating the broad exercise of police powers because of the compelling state interest in counterterrorism without legislation.91

88. Prashant Bhushan, “Are Tougher Laws The Answer?,” Outlook, June, 8, 2009.89. Anil Kalhan Et al, Op cit, 2006, PP-105. 90. Asmita Basu, Op cit, PP-11. 91. Sudha Setty, “How Nations Define Terrorism Ten Years After 9/11”, The University of Pennsylvania Journal of International Law, Vol. 33, 2011, PP-51.

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The 2008 amendments to the UAPA “expand the vague and overbroad definition of terrorism under existing Indian law to encompass a wide range of non-violent political activity”, “authorise warrant-less search, seizure and arrest”, “allow detention without charge of up to 180 days”, “create a presump-tion of guilt for terrorism offenses where certain kinds of inculpatory evidence are found, without showing criminal intent”, and “authorise in camera (closed) hearings [that] use secret witnesses.” The amendments also lack provisions guarding against pre-trial torture of detainees, due process guaran-tees and the presumption of innocence.”92

The UAPA Act contains a number of draconian clauses, and is also applicable to the entire country -- unlike the Unlawful Activities Act, which was originally not extended to the strife-torn state of Jammu and Kashmir. The stringent clauses cover a broad range, including a redefinition of terrorism, harsh punishment extending from five years’ imprisonment to life sentence or death, long periods of detention and presumption of guilt in case weapons are recovered from an accused person.”.93 The new definition now includes acts done with the intent to threaten or “likely” to threaten the unity, integrity, security or sovereignty of India, and offences related to radioactive or nuclear substances, and even attempts to overawe, kidnap or abduct constitutional and other functionaries that may be listed by the government. Besides making telecommunications and e-mail intercepts admissible as evidence, the Act also denies bail to all foreign nationals, and mandates a refusal of bail to anyone if a prima facie case exists, which is decided on the basis of a First Information Report filed by the police.

According to Human Rights Watch report, vague and overbroad definition of terrorism in UAPA could facilitate serious human rights violations. The report quotes Martin Scheinin, the United Na-tions special rapporteur on the promotion and protection of human rights and fundamental freedoms who has highlighted the risks of codifying vague and overly broad definitions of terrorism and related terms into law. Martin Scheinin notes that in many countries, such overbroad definitions are used by government authorities “to stigmatise political, ethnic, regional or other movements they simply do not like,” even though United Nations Security Council Resolution 1456 confirms that states must ensure that measures adopted to combat terrorism “comply with all their obligations under interna-tional law … in particular international human rights, refugee and humanitarian law.”94

Civil liberties activists and politically conscious citizens describe the new laws as draconian and ex-cessive in relation to the measures India really needs to take to fight terrorism. Colin Gonsalves, executive director of the Delhi-based Human Rights Law Network says, “The UAPA Act is particu-larly vile, and will have the effect of turning India into a virtual police state. It basically brings back a discredited law, the Prevention of Terrorism Act of 2002 (POTA), except for admitting confessions made to a police officer as legal evidence.” It is argued that the definition of terrorism on which the measures are based is extremely broad and subjective, making the potential for government abuse high. Many of the substantive provisions in the UAPA 2008 Amendments had been previously re-jected based on concerns over human rights abuses, including the targeting of Muslim populations and other groups without political power.95

Although TADA and POTA both contained sunset provisions meant to provide at least some legisla-tive check on the powers exercised by police and intelligence forces, the 2008 UAPA amendments do

92. INDIA, 13th Session of the Working Group on the Universal Periodic Review, United Nations Human Rights Council, 21 May – 1 June, 2012, PP-2. 93. Praful Bidwai, India’s New Anti-Terror Laws Draconian Say Activists, Inter Press Service, 20 December, 2008. 94. Human Rights Watch, “Back to the Future -India’s 2008 Counterterrorism Laws”, New York, USA,2010, PP-5.95. Sudha Ramachandran, Filling India’s Anti-terrorism Void, Asia Timesonline,Sept.23,2004, http://www.atimes.com/atimes/South_Asia/FI23Df03.html (noting that while the majority of the 32 organisations banned under POTA were Muslim, none of the Hindu extremist groups were ever targeted).

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not contain similar protections. According to Ravi Nair, executive director of the Delhi-based South Asia Human Rights Documentation Centre, “They brought back the unjust provisions of POTA and TADA through the back door. Even POTA and TADA included some safeguards such as a review committee or sunset provisions, but under the 2008 amendments to UAPA, all that is gone.”96

The 2008 UAPA amendments do not require any meaningful judicial scrutiny of the prosecutor’s de-cision—and the central government’s review authority—as to whether detainees will be categorised as ordinary criminals or treated as terrorism suspects who are then afforded many fewer rights. Hu-man Rights lawyer Rajeev Dhawan writes about UAPA, “It is founded on the principle that everyone is suspicious or a suspect, with no fine distinction between the two. We are creating a suspicious state to empower suspicious officials and citizenry to act suspiciously against any supposed suspect. This Bill goes further than TADA or POTA in its creation of a suspicious state. India must fight terrorism, but the last thing India wants to be is a terrorist anti-terrorist state”.97

Armed Forces (Special Powers) Act (AFSPA)

Armed Forces (Special Powers) Act (AFSPA) was first passed by the Parliament of India in 1958 to apply to the North East of the country, and later extended to Punjab (1983) and Jammu & Kashmir (1990). AFSPA is nothing but a replica of 1942 Ordinance framed by the British aimed at contain-ing the rising tide of Indian Independence movement during the Second World War. The Act places more emphasis on the use of brute force to contain civil unrest rather than addressing the social and economic grievances of the people.

The Act was originally intended as a short-term measure to allow Army deployment to counter a particular uprising of Naga people in the Naga Hills. Later extended to apply to Assam and Manipur in 1958, it was amended in 1972 to extend to all seven states in the Northeast: Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. Enacted to combat tension originat-ing from demands for self-determination by the Naga people, AFSP gave wide ranging powers to the armed forces in the region. It remains in force in much of the Northeast today.

Under this Act, the governor of a state can override the state government to declare an area as “dis-turbed”, without giving any particular definition of a “disturbed area.” The AFSPA empowers the armed forces to shoot to kill, conduct warrant less searches and arrests, arbitrarily detain people and demolish structures suspected of harboring absconders without any verification or containing weap-ons. Members of armed forces, even non-commissioned officers, are granted the rights to shoot to kill based on mere suspicion that is necessary in order to “maintain the public order”.98

The decision to declare an area “disturbed” is not subject to judicial review. Like Section 197 of CrPC, AFSPA provides immunity for military and security forces who commit killings and other se-rious human rights violations. The Act provides de jure impunity to the armed forces: Under AFSPA, no “prosecution, suit or other legal proceeding shall be instituted against any member of the armed forces acting under AFSPA, without prior sanction from the Central Government”.99 The approval of the Central is rarely given in practice. This clause has allowed most to escape any legal accountability. Human Rights organisations have pointed out that heavy militarisation in the region under AFSPA

96. “The “Anti-Nationals”: Arbitrary Detention and Torture of Terrorism Suspects in India”, Human Rights Watch Report, February 2011, PP- 89. 97. Rajeev Dhawan, http://kafila.org/, 19 December 2008.98. AFSPA Section 4.99. AFSPA Section 6.

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since 1958 have led to innumerable instances of human rights violations committed against civilian population. Beating, torture, rape, arbitrary arrests, extra-judicial killings ad forced disappearances are perpetrated daily by the armed and security forces. As succinctly put by a senior lawyer/journal-ist- Section 4 “ignores the officer’s duty to respect the life of a citizen, omits this vital injunction and contains instead a carte blanche unheard of in any other democracy- ‘even to the extent of causing death’.”100

The AFSPA is one of the most draconian laws that Parliament has enacted in its legislative history. The law has fostered a climate in which the agents of law enforcement use excessive force at their command and set a pattern of apparently unlawful killings of “suspected” civilians. The AFSPA gives security forces unlimited powers to carry out operaions with impunity once an area is declared “disturbed”.101 In 2006, in an attempt to respond to the “legitimate” grievances of the people, Prime Minister Manmohan Singh declared that the Act would be amended on the basis of the Jeevan Reddy Committee Report and “made more humane, giving due regard to the protection of basic human rights”. This Report is yet to be publicly discussed by the government. Some legal analysts have criti-cised the Reddy Committee Report for expanding rather than restricting State powers under the guise of recommending a repeal of the Act after incorporating the most pernicious provisions into the Unlawful Activities (Prevention) Act.102

Maharashtra Control of Organised Crimes Act, 1999 (MCOCA)

Since the repeal of POA and TADA, a number of state governments have sought to introduce their own security and anti-terrorism measures. Characterising organised crime as a form of terrorism, the state Government of Maharashtra enacted Maharashtra Control of Organised Crime Act (MCO-CA) in 1999 to combat organised crime and terrorism. In the light of the threat perception of organ-ised criminal activities in and around the National Capital (New Delhi), the relevant provisions of Maharashtra Control of Organised Crime Act, 1999 have also been extended to the National Capital Territory of New Delhi with a notification on January 2002 by the Indian Ministry of Home Affairs.

Maharashtra Control of Organised Crime Act (MCOCA) retains a number of provisions found in the erstwhile TADA. According to Mukul Sharma of Amnesty International India, “The MCOCA came in the statute book as a replacement for the infamous Terrorist and Disruptive Activities (Pre-vention) Act that was allowed to ‘lapse’ in 1995, in the face of widespread opposition to its draconian provisions and use. The Maharashtra government was the only government at that time which en-acted a replacement for the TADA, while similar draft legislations were withdrawn in Tamil Nadu, Andhra Pradesh, Jammu and Kashmir and at the Centre, because of popular opposition”.103

The term organised crime‘ has been defined in Section-2 (e) of the Act which says “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person or promoting insurgency”.104

100. Noorani A.G. Armed Forces (Special Powers) Act: Urgency of Review; Economic and Political Weekly Vol XLIV No 34, August 22, 2009. 101. Harsh Dobhal, (Ed.), “Manipur in the Shadow of AFSPA”, HRLN, New Delhi, 2009, PP-XI.102. Combat Law; Justice Jeevan Reddy Report on AFSPA; Evil is Intact; February 21, 2010.103. Mukul Sharma, Director, Amnesty International India, The Hindu, Dec 17, 2007. 104. “Section 2(e), Maharashtra Control of Organised Crime Act, 1999.

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In its definition of “organised crime”, the MCOCA includes unlawful activities and violent acts to gain pecuniary benefits or to “promote insurgency”. Due to the presence of the latter phrase, this law has been used to prosecute terrorist suspects. For instance, this law is currently being used to pros-ecute those accused in the Malegaon Masjid bomb blast case that killed 31 persons in 2006. This law too, allows detention without charge upto 180 days, of which 30 days may be in police custody. It also provides for the institution of special courts to try cases under this law.

The provisions of the section pertaining to the facet of promoting insurgency was challenged as being ultra vires on the ground that the state legislature did not have the legislative competence to enact the same. The question regarding the constitutional validity of the section came before the Bombay High Court (Court of appeal for the state of Maharashtra). It was submitted that the legislation pertaining to insurgency, rising in active revolt, could only be enacted by the Union/Federal legislature accord-ing to the Constitution of India, hence, the present treatment of insurgency in the Maharashtra Con-trol of Organised Crime Act, 1999 is not valid. The challenge was struck down by referring to explicit constitutional provisions, according to which there is no implied restriction on the legislative powers of the Union legislature or State legislature and in case of any overlapping of the legislative powers, the pith and substance of the legislation should be taken into consideration.105 On the basis of these constitutional considerations, the provisions of section 2 (e) pertaining to the facet of promoting insurgency was upheld by the Bombay High Court.

The provisions of the Act allow confessions made in police custody to be used as evidence. According to the Indian Evidence Act, 1872, any confession made before a police officer is considered inadmis-sible at the trial. The law requires that the confession should be made before a judicial magistrate in order to be considered admissible. However, under the provisions of this Act confession made to a police officer not below the rank of superintendent of police is also admissible as evidence at the trial.106

Confession rule under the Act is one of the most draconian provisions which provide absolute le-gitimacy to illegal ways employed by police authorities to extract confessions. The provisions of the MCOCA are also used to arrest persons rather arbitrarily and illegally. Furthermore, innocent per-sons so charged under the Act are left with no other option than to languish in jails because of strin-gent reverse onus on bail provisions.

The MCOCA was also held up as an example of a model criminal law in the debates preceding the enactment of the POTA. However, it has been observed that the very provisions that make MCOCA “desirable for its efficiency are precisely the ones that make it draconian and extraordinary.”107 This is demonstrated in investigative reports and practice that has shown rampant misuse of the MCOCA with confessions made in police custody being eventually retracted and no proper investigations in cases filed. Hence there is a strong possibility that convictions under the MCOCA are based on forced confessions.

The complex nature of model along with draconian provisions of this Act provides sweeping powers to enforcement agencies. The critiques of MCOCA have often termed the provisions of the Act as being even more draconian than the Terrorist and Disruptive Activities Act (TADA). The central is-sue with the opposition of such legislative measures is that more than often these measures are used

105. Zameer Ahmed, Latifur Rehman Sheikh and Others v. State of Maharashtra and Another, 2008 (1) AIIMR 391, 2007 INDLAW MUM 908.106. Maharashtra Control Of Organised Crime Act, 1999, Section 18 (1), online: Indlaw <http://www.indlaw.com/search/acts/Default.aspx>. 107. U.K Singh; The State, Democracy and Anti-terror Laws in India; Sage Publications; New Delhi 2007, PP-16

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against the minorities and political opponents. And in India the enforcement agencies are known, from past experiences, for abuse of provisions and gross human rights violation against minorities and political opponents rather than prosecuting the intended targets.

According to Mr. Majeed Memon (senior advocate of repute practicing in Mumbai and specialising in preventive acts), the MCOCA is being used in Maharashtra to arrest people rather arbitrarily.108 Ms. Teesta Setalvad (journalist and human rights activist), opines that 42 per cent of the detainees held under the provisions of preventive acts have been illegally detained.109 In the present scenario, the innocent are left with no other option than to languish in the prisons due to stringent bail provi-sions of the MCOCA combined with inefficiency of the criminal justice system.

Chhattisgarh Special Public Safety Act, 2005 (CSPSA)

The Chhattisgarh Special Public Safety Act, 2005 (CSPSA) was enacted to combat the threat of Nax-alism in the state. It is modeled on the Madhya Pradesh Special Areas Security Act, 2001. The law goes even further than the UAPA 2004 in its definition of what is deemed an “unlawful activity”. This law defines “unlawful activities” as “any act (or communication verbally or in writing or by represen-tation) by a person or organisation: I. Which poses a danger or fear thereof in relation to public order, peace and tranquility; or II. Which poses an obstacle to the maintenance of public order, or which has a tendency to pose such obstacle; or III. Which poses, or has a tendency to pose an obstacle to the administration of law or to institutions established by law or the administration of their person-nel…VI. Which encourages the disobedience of the established law or the institutions set up by law, or which involves such disobedience…”110

This definition is broad enough to contain a number of different activities that were legal until the Act came into force. Under CSPSA any organisation or person who commits or abets or tries to commit or even plans to commit an “unlawful activity” may be imprisoned for up to three years. This defi-nition goes well beyond the definition of “unlawful activity” and “terrorist act” provided for in the UAPA.111 The law also empowers the state government to declare an organisation as being unlawful, criminalise membership thereof and notify a place as being used for the purpose of unlawful activi-ties. Once notified, the District Magistrate has the power to take occupation of the place, seize move-able properties and evict residents. There is limited scope for review and appeal against notification of places under this law.

The provisions in the CSPSA on public safety criminalise all forms of association with unlawful or-ganisations and allow the state to use such laws against any person who challenges state policy or action. It was used against human rights defender like in Dr. Binayak Sen’s case. He was sentenced under provisions of the CSPSA and UAPA for his association with a banned Maoist outfit.112 How-ever, documentary evidence shows that Dr Sen visited the imprisoned Maoist in his capacity as the head of a prominent human rights organisation in India (People’s Union for Civil Liberties) with prior police permission. Dr Sen is widely known to raise consistently his voice against human rights violations committed by the state. He was granted bail by the Supreme Court in 2011. The use of the

108. Dr. Meghna Guhathakurta, “Including the Excluded: Rights of Minorities in South Asia”, South Asian People‘s Commission for the Rights of Minorities, 2006, PP-93.109. Ibid, PP- 94.110. CSPSA, Section 2(e).111. Peoples Union for Democratic Rights; PUDR Memo on the Chattisgarh Bill 2005; A Memorandum to the President of India. 112. Section 8 (2) and (3) of the CSPSA.

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word “tendency” is a dangerous expansion of the fundamental principle of criminal law that criminal acts must be committed with intent. The CSPSA gives inordinate power to state authorities to op-press those it considers to be opponents of its policies.113

Antiterrorism and Special Security Laws: Targeting Muslim Religious Minority

India’s antiterrorism and security laws have raised significant human rights concerns. Indian and in-ternational human rights groups and minority rights groups have expressed concern that extraor-dinary laws such as TADA, POTA and UAPA have been used to target political opponents, human rights defenders and religious minorities. Many state governments have been using anti terrorism laws against individuals from religious minorities, particularly Muslims who ostensibly have been suspected of involvement with suspected insurgents, but who in fact appear to have been innocent of any terrorist involvement or, in many cases, the individuals charged appear not to have been involved in any criminal activity at all and the allegations appear to bear little relationship to terrorist or in-surgent violence. Anti terrorism laws have been used by the police and security forces to arbitrarily or illegally detain, arrest and torture Muslim youth often without producing in the court or filing a charge-sheet in the court. Anti-terrorism laws foster a climate of fear of political repression and cen-sorship. The laws contribute to Muslims feeling fearful and socially excluded. They are contributing to a wider sense among Muslims that they are being treated as a ‘suspect community’ and targeted by authorities simply on the basis of religion, rather than any form of immediate threat or suspicion. There is a perception in the community that the laws are designed to single out and to harass Mus-lims, particularly because the Government has not gone to any length to provide reasons or justifica-tions for different aspects of the laws. It is inevitable that the community feels targeted when there is no justification for the laws or any clear pronouncement of the intention behind specific aspects of the legislation and the harm that they purport to address. Indian author Mukul Dube aptly describes, “Any Indian can be a victim of the high-handedness of the “forces of law and order”: but it has be-come clear, from the fact that people from minority groups such as Muslims and tribals are singled out and form the overwhelming bulk of those detained under the anti-terror laws, that a systemic bias exists. There are those who say that this is part of a calculated strategy of cowing down and wearing down the minorities. One young man locked up is not just the destruction of one life and one career: it severely affects the man’s family also and, often, the community to which he belongs”.114

Vijay Nagaraj of Amnesty International India argues that it is crucial to analyse the important di-mension that there is frequent confabulation of the militancy of ethnic and religious minorities with terrorism. He writes, “The Law Commission of India’s 173rd report on the Prevention of Terrorism Bill 2000 rationalised the need for a draconian anti-terrorist legislation citing increasing militancy of secessionist movements in Jammu and Kashmir and the North-East. Even the Annual Reports of the Union Home Ministry (available at www.nic.in) discuss terrorism primarily in terms of Pakistan and Islamic fundamentalism. It is only Islamic fundamentalism is seen as a grave threat to national security. It is this thinking that apparently gets translated into policy and eventually takes the form of laws that cannot but be repressive”.115

According a report by The Milli Gazette, Indian Muslims’ leading News Paper, “Around 72,000 out of 77,000 detained under TADA were released without having been charged or tried. Most of them

113. Grace Pelly & Jai Singh, Op cit, 2008, PP-45.114. Mukul Dube, “India: Some Thoughts on the Syed Kazmi Case”, South Asia Citizens Web, Sunday 21 October 2012.115. Vijay Nagaraj, “India: The Politics of Anti-Terror Legislation” in Commonwealth Human Rights Initiative Seminar 5th-6th June 2003, PP-3.

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were tortured with a view to extract confessions from them. Thirteen years after the TADA lapsed, 147 persons are still under detention, for offences under that Act. Similarly, around 3,500 persons in 18 states of India were held under POTA in three years of its existence. Gujarat is the state with the highest number of detentions and all but one of the 287 people initially held under the act were Muslims. As many as 234 Muslims belonging to various groups are currently lodged in different jails in Assam”.116

Clinching evidence of this is the selective use of draconian laws like POTA in the case of the vio-lence in Gujarat in 2002. In the days following the torching of a train in which 59 people, many of them Hindu pilgrims, were killed, over 2000 Muslims were killed and hundreds of women raped and Muslim businesses and houses looted and burnt etc. “Evidence suggests that in initiating cases under POTA, the Gujarat police often have not simply applied POTA selectively against Muslims, but also have used the law to intimidate Muslim citizens from coming forward with evidence of police com-plicity in the organised post-Godhra violence. It has been reported that the police have unlawfully detained hundreds of young Muslims and threatened them with false charges under POTA if they did come forward.”117

Today, Muslims carry a constant dread of being profiled as terrorists on the one hand and they are forced to live with the attendant fears of illegal and prolonged detention, denial of bail, torture, unfair and biased investigation and trial, and extra-judicial killings on the other hand. The 106-page report –“The Anti-Nationals”, published by Human Rights Watch in 2011 has documented the Indian se-curity forces’ use of torture and coercion to obtain confessions, as well as other abusive methods against terrorism suspects. The report has revealed that the police have been using torture against Muslims across India on the name of so- called militancy and there was evidence of discrimination, harassment and stereotyping of Muslims by the Indian authorities. The report is based on more than 160 interviews with illegally detained persons, their relatives and lawyers, civil society activists, and Indian police officials in New Delhi, as well as in the states of Gujarat, Maharashtra, Rajasthan, and Uttar Pradesh. Human Rights Watch conducted research for this report in five Indian states in No-vember 2008, June-July 2009, and periodically through December 2010. The police in Gujarat and Delhi, the report said, also manipulated criminal procedures to allow them to hold detainees for in-terrogation well beyond the initial 15-day legal limit after arrest. Many detainees have said that they are the victims of torture, including the use of electric shocks. Revealing further details, the report quoted the detainees saying that the police woke them up at night to make them repeat a police ver-sion of events while many of the detainees had been denied access to lawyers for days or weeks after their arrest. “Upon finally meeting with counsel, they often were not allowed to speak with lawyers out of earshot of guards. Some lawyers defending unlawfully detained Muslims in false cases were threatened or physically attacked by Hindu extremists, many of them fellow lawyers.”118

According to Human Rights Watch, “Over and over again, the police response to terrible bombings has been to round up people, simply because they happen to be Muslim, and to torture them in the hope of securing information or confessions.” This fact has also been confirmed by other Indian com-mittees in their reports after investigating the incidents of blasts in various parts of the country. A Committee or a fact finding mission appointed by the Andhra Pradesh State Minority Commission is a case in point which was to make an independent assessment of the illegal detention and torture of those arrested in connection with the twin bomb blasts at Lumbini Park and Gokul Chat, in Hy-

116. Detention of Muslims in India - a brief report, The Milli Gazette, Published Online: Dec 31, 2012, Print Issue: 1-15 December 2009. 117. Anil Kalhan Et al, Op cit, 2006, PP-180.118. The “Anti-Nationals :Arbitrary Detention and Torture of Terrorism Suspects in India”, Human Rights Watch, 2011.

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derabad on the 25th of August, 2007. The task of the Committee was to find out whether there was a prima facie case made out against the police and as to whether there was some truth in the allegation of communal prejudice, illegal detentions and the use of third degree methods on the detainees. The fact finding committee met the parents and family members of some of the detainees lodged at Char-lapally prison, of those whose whereabouts are not known, members of several Civil Society Social Service Organisations, lawyers, social activists, and journalists. In its report the committee observed that ever since the twin bomb blasts occurred, there has been great concern and apprehension that indiscriminate, arbitrary detentions/ arrests of Muslim youth have been taking place; and there have been serious allegations that third degree methods were being used to elicit confessions.

The report of the Committee clearly reveals communal bias in the pattern of detentions /arrests made after the twin bomb blasts. It says there is sufficient evidence to believe that Muslim young men were picked up at random because they belonged to a particular religion. Immediately after the bomb blasts, statements were made by the Government and police at the highest levels, that the bomb blasts were perpetrated by Muslims. Based on the statements made to the Committee (even after giving allowances for exaggerations), the Committee reported that detainees were subjected to physical and mental torture. The detainees at Charlapally prison recounted to the Committee the physical torture they had been subjected to, during police interrogation. They spoke of severe beat-ings, many of being subjected to electric shocks to all parts of the body, including the genitals, and other forms of torture.119

In October 2012, the Jamia Teachers Solidarity Association, a New Delhi-based human rights advo-cacy group, brought out a stinging indictment of policing in independent India. In studies of 16 cases involving the Delhi Police’s élite counter-terrorism unit, the Special Cell, the report found evidence of illegal detention, fabricated evidence and torture. Each case, the report states, ended in acquittal — but not before protracted trials destroyed the lives of suspects.

Dr. Nazeer Udin in his paper “Muslim Minority Exclusion and Development Issues: Need for In-clusive Policy” describes that one of the worst forms - but a good index - of discrimination against Muslims is their over-representation in prisons in all the States surveyed barring Assam. In Gujarat, Muslims are two-and-a-half times likelier to be in prison than Hindus in relation to their population. In Maharashtra, Muslims account for 10.6 per cent of the population, but for 40.6 per cent of all pris-oners. Even in Tamil Nadu, the proportions are 5.6 per cent and 9.6 per cent. More than 60 per cent of this prison population consists of under trials - probable victims of the selective recent application of anti-terrorist measures to Muslims.120

With the perception of Muslims not being quite favourable to official agencies, the revelation of the findings of the Sachar Committee with regard to over-representation of the community in the coun-try’s prisons, reported (before the submission of its report to the Prime Minister) by The Indian Express, in its series of reports entitled ‘The Missing Muslim’, created a sensation. Justice Rajinder Sachar committee appointed by the Indian Prime Minister looked into the status of Muslims nation-wide. Key finding of the report has major social and political implications as high figure of incarcera-tion of Muslims in Indian jails further indicates a process of community marginalisation, deepening prejudice and distrust among the community members. According to Sachar Committee Report, India’s population is 84 per cent Hindu, and the remaining population is 13 per cent Muslim and 2.4 per cent Christian. Yet prison statistics show that this ratio is not reflected in India’s prison. It was the

119. Nirmala Gopalakrishnan, K. Anuradha & Mohammad Afzal, “Report of the Fact Finding Committee On the arrests/detentions, in connection with the twin bomb blasts in Hyderabad, 10th October, 2007, PP- 7-8. 120. Dr. Nazeer Udin, “Muslim Minority Exclusion and Development Issues: Need for Inclusive Policy, ZENITH, International Journal of Multidisciplinary Research Vol.2 Issue 1, January 2012, PP- 400-401.

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Sachar Committee which came out with a conclusion that the ratio of Muslims in jails throughout the country was more than the estimated ratio of Muslims in the country and in many states, it is twice or thrice as much as their share of the population.

Following the submission of the report to the Prime Minister, The Indian Express reported that the data with regard to prisons were edited out of the Sachar report, following the concern expressed on these figures in different quarters. The high presence of Muslims in Indian prisons is a product of the deplorable socioeconomic conditions that they confront and of systematic anti-Muslim bias on the part of the police and judiciary. Thousands of innocent Muslim youths have been caught up in various “anti-terrorism” dragnets—dragnets that have made use of such draconian anti-terrorism laws as the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Ter-rorism Act (POTA) and allow the authorities to hold people for weeks and months without charge. The Urdu press was on fire and questions were asked why prisons were the only place where Muslims were over-represented compared to all other communities and in some cases their representation being much higher than their population proportion.121

According to Indian Express, what makes this deletion surprising is that this data, showing such a high rate of incarceration, has significant social and political implications, including the further mar-ginalisation of the community, reinforcing stereotypes and deepening prejudice. The deleted data showed that when it came to Muslims in the prison population, Maharashtra, Gujarat and Kerala are the most disproportionate.

• InMaharashtra,thepercentageofMuslimjailinmatesinallcategoriesiswayabovetheirshare in the population Muslim share in population is 10.6 per cent, share in the total prison inmates is 32.4 per cent.

• Whenitcomestothoseinprisonforlessthanayear,Muslimscontribute40.6percentofall prisoners in Maharashtra.

• InGujarat,thepercentageofMuslimsinthestateisjust9.06percentbuttheymakeupover a quarter of all jail inmates.

• Assam,thesecondhighestMuslimpopulatedstateinthecountry,afterJ&K,has30.9percent Muslims, and here, the percentage of Muslim jail inmates is 28.1.

• EvenKarnataka,whichdidrelativelybetterthanotherstatesinprovidingjobstoMuslims,shows the same trend: 17.5 per cent of its jail inmates are Muslim as compared with 12.23 per cent of its population.

• InDelhi,whereMuslimsmakeup11.7percentofthepopulation,theyconstitute29.1percent of those in jail for less than a year.122

The number of Muslims in jail is highly disproportionate to their population. And this disturbing fact has been reconfirmed by a Study of the Socio Economic Profile and Rehabilitation Needs of Mus-lim Community in Prisons in Maharashtra, 2011, by Dr. Vijay Raghavan and Roshni Nair from the Centre for Criminology and Justice School of Social Work, Tata Institute of Social Sciences (TISS). Around 339 Muslim prisoners (both male and female) mostly between 18 and 30 years of age, across 15 prisons in Maharashtra were interviewed for the year-long research, which has thrown up alarm-ing statistics on the condition of Muslim prisoners and the state of their legal representation. The

121. Seema Chishti, “Prison is the only place where Muslims are over-represented”, Indian Express, October 28, Mon Oct 30 2006, New Delhi. 122. Ibid; Seema Chishti, Indian Express, October 28, Mon Oct 30 2006, New Delhi.

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report was commissioned by the Maharashtra State Minorities Commission as a follow-up to the Sachar Committee report in response to the charge of a disproportionate number of Muslims in jail. The report lamented that “in Maharashtra Muslims account for 10.6 per cent (2001 survey) of the general population, yet they comprise 32.4 per cent of the prison population. For those incarcerated on terms of less than a year, the figure rises: 42 per cent of prisoners on short-term sentences in the state are Muslims”.123 About 70 per cent of the 3,000 Muslims prisoners in 15 jails were under trials and 30 per cent were convicted prisoners. What is of concern is that 52.8 per cent are charged with violent crimes mainly murder, attempt to murder, rape, assault and kidnapping. Among the under trials interviewed charge sheets have only been filed in 47.4 per cent of the cases and a mere 3.8 per cent have reached judgement stage, indicating the slow pace of trials. According to the study, 75.5 per cent of respondents said they were arrested for the first time for very minor offences whereas 25.4 per cent were repeat offenders. 30 per cent of them were not allowed to talk to their relatives at the time of their arrest. This implies that most respondents do not have connections with criminal gangs or have any record which may be a threat to law and order. The study says, in 52.3 per cent of respond-ent’s cases, their bail applications were rejected by the courts and only 15.6 per cent were granted bail. Of the respondents whose bail was rejected, 48 per cent did not know the reasons behind the rejection.124 About 25.4 per cent of those imprisoned did not have lawyers to represent them in their cases. It further says that while 44 per cent of those arrested were allowed to meet their families im-mediately, 38 per cent were not allowed to do so, a clear violation of D.K. Basu guidelines. The study points to an acute bias of the police for arresting them in some cases only because they belong to a particular community. In all 42 per cent of prisoners on short-term sentences were Muslims The po-lice’s biases against Muslims led to some of the arrests under the erstwhile Terrorist and Disruptive Activities (Prevention) Act (TADA), the Maharashtra Control of Organised Crimes Act (MCOCA) and even under the Official Secrets Act without any evidence.

Journalist Meena Menon writes some interviews reflect the deep sense of bias and alienation of the people interviewed. She quotes Murtuza, an agent in textile export, arrested under the Official Se-crets Act on charges of spying, saying in his interview to the research team: “There are two types of laws in this country. One is for Hindus and the other is for Muslims. The policeman is first a Hindu and then a policeman. The judge is first a Hindu and then a judge and the lawyer is first a Hindu then a lawyer. People who work against the State, indulge in rioting, kill thousands of innocent people, and harass women and children roam free in this country. They are not punished. I am suffering only because I am a Muslim. Murtuza strongly feels that the discriminatory attitude is one of the major reasons for his arrest.”125

The latest figures released of National Crime Records Bureau (NCRB) reveals that the percentage of Muslim under-trials, convicts and detenus is higher than the total percentage of Muslim population in India. The ‘Prison Statistics India 2011’ report prepared by NCRB has compiled huge data about prisoners in India in different categories. The report was released in September 2012. According to the report, on 31st December 2011, there were 3,72,926 inmates in 1382 jails in India. Muslims were 75,053- that is over 20 per cent. The community, however, accounts around 14 per cent of the national population.

According to the report, About 1, 28,592 persons were convicted by various courts across the coun-

123. Dr. Vijay Raghavan & Ms. Roshni Nair, “A Study of the Socio Economic Profile and Rehabilitation Needs of Muslim Community in Prisons in Maharashtra, 2011”, Centre of Criminology and Justic, School of Social Work, Tata Institute of Social Sciences, Mumbai, PP- 8.124. Ibid, PP-V.125. Meena Menon, “TISS report points to anti-Muslim bias of police” The Hindu, June 24, 2012 .

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try wherein 17.8 percent (22,943) are Muslims. Among these, 56.7 percent are from four states - Ut-tar Pradesh, Maharashtra, West Bengal and Madhya Pradesh. The overrepresentation of Muslims among prisoners facing trial was even more marked: 21.2 per cent of 2,41,200. Out of the 2450 dete-nus, percentage of Muslim detenus is at 26.5 percent. Besides Gujarat and Maharashtra, West Bengal is amongst those states with high numbers of Muslim prisoners or under trial. In Gujarat Muslim population are 10 per cent, but as per ‘Prisons Statistics - 2011’ Muslim prisoners under trials and convicts in jail are 22 per cent. In Maharashtra Muslim population are 10 per cent, but comprise of 34 per cent prisoners. 5,600 out of the 16,084 under-trials in Maharashtra and 6,174 out of the 13,567 under-trials in West Bengal jails are Muslims as on December 31, 2011. This is a high proportion of Muslims in jail facing trial compared to a Muslim population of their state - around 10 per cent in Ma-harashtra and 20 per cent in West Bengal as per the 2001 census. The story is exactly the same when it comes to the proportion of Muslim convicts in jails of these two states - there are 2,513 Muslim convicts in Maharashtra and 2,595 in West Bengal out of a total of 7,952 and 5,660 convicts in jails of the two states, respectively.126

The number of Muslims behind bars in Maharashtra has been steadily rising - from 5,147 under tri-als in 2010 to 5,600 Muslim under-trials as on December 31, 2011, as per the latest NCRB report. Government sources claim that the rising radicalisation in Maharashtra may have contributed to the increasing prosecution of Muslim youths on terror charges. In West Bengal as well, the number of Muslim under-trials have increased from 5,722 in 2010 to 6,174 as per the latest count. Uttar Pradesh, with its high Muslim population, has the maximum number of Muslim prisoners behind bars with 20,655 convicts and under-trials. Every fourth prisoner in UP is a Muslim.127

These figures make clear that Muslims are not only disproportionately likely to be convicted for an offence but also more likely to be arrested for a crime for which they are eventually acquitted. Muslim scholars warn that this is only a sample of what prevails all over the country. In almost every jail, the Muslim population far exceeds its ratio in the state population. This fact was known to the Sachar Committee but it preferred to suppress it on the erroneous assumption that publication of such data will “criminalise” the Muslim community while the fact is that it will only criminalise the Indian state and society which maltreats its largest minority. The Indian Muslim is subject to arbitrary arrests on flimsy charges. Being unable to arrange adequate legal defence, he loses the case and being unable to arrange surety, he cannot get bail. The lot of the Indian Muslim is somewhat similar to that of the blacks in the US. It is time for the Indian government and national and international human rights organisations to take note of this gross violation of the human rights of India’s largest religious mi-nority.128

126. Prison Statistics: India 2011, National Crime Records Bureau, Ministry of Home Affairs, Government of India, New Delhi. 127. Aman Sharma, “More Muslims in Maharashtra and Bengal prisons than Gujarat”, Economic Times, 15 Nov, 2012.128. Zafarul-Islam Khan, The Milli Gazette, 16-30 June 2012, PP-3.

chapter iii

MUSlIM MInoRITy In InDIa Social, Economic and

Political Exclusion

indeX

I. Minorities

II. Indian Constitution and Minorities

III. Minorities and legal Safeguards IV. Indian Muslim Minority and Marginalisation

V. Discrimination and Violence VI. laws and Security

VII. Socio-Economic Exclusion VIII. Development Deficit: Colonial legacy IX. Development Deficit: Post-independence Period

X. Dr. Gopal Singh Panel

XI. Justice Ranganath Mishra Commission

XII. Justice Rajinder Sachar Commission

XIII. Development Deficit: Government’s Response to Sachar Committee Recommendations

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India is among the most diverse societies in the world. The image of India is that of a secular and democratic, inclusive society. It is a multi-ethnic, multi-religious, multi-linguistic and multi-cultural society. It has people from all the major religions in the world—Hindus, Muslims, Christians, Sikhs, Buddhists,

Jains and Zoroastrians (Parsis). Religious diversity is coupled with enormous linguis-tic and cultural diversity. Since a very long time, people belonging to various religious faiths have been living together in each village and town in this country. Diversity of all types is the very soul of Indian society and polity. According to 2001 Census, the religious minorities have more than 200 million populations in India. Religious minority groups in India are chiefly the Muslims, the Christians, the Sikhs, the Jains, Buddhists and the Parsis who have been able to preserve their group identities and have also stayed in the mainstream of national politics.

Ironically, after almost half a century of its democratic existence, India is not only a land of just vibrant pluralistic culture, but it also marked for its deeply rooted social divisions. The social fabric is fragmented along the lines of caste, class, gender, ethnic-ity, region and religion. Each marginalised group is characterised as a “minority”. This section all together forms an overwhelming majority. The term ‘minority’ in general refers to a part of the population of a state that is marked off by race or language or religion or some other social characteristic which leads the people of the group to be looked on by the majority as somewhat different or ‘other’ and leads the minority to view the majority as both different and dominant.

MINORITIES

The expression “minority” has been derived from the Latin word “minor” and the suffix ‘ity’, which means “small in number”. According to Encyclopedia Britannica mi-norities means “group held together by ties of common descent, language or religious faith and feeling different in these respects from the inhabitants of a given political en-tity”. J.A. Laponce in his book “The Protection to Minority” describes “minority” as a group of persons having different race, language, or religion from that of majority of inhabitants. A special Subcommittee on the Protection of Minority Rights appointed by the United Nations Human Rights Commission in 1946 defined the ‘minority’ as those “non- dominant groups in a population which possess a wish to preserve stable ethnic, religious and linguistic traditions or characteristics markedly different from those of the rest of the population.”

In the Year Book of Human Rights (UN Publication 1950 edition) minority has been described as “non-dominant group having different religious or linguistic traditions than the majority population.”1

1. Shivhare,Varun, “minority rights, the judicial approach”. http://www.legalservicesindia.com/articles/judi.htm

mUslim minoRitY in inDia


The concept of minorities has invited more controversies in the past ever since attempts had been made to introduce provisions relating to them in the Constitution of India. Maulana Abul Kalam Azad did not espouse the concept of minorities as he believed in the singularity of the Indian na-tion and polity. This was at a time when the ‘Constituent Assembly’, of which he was a member, was debating the prospects of having concrete provisions for the minorities. The initial position of the Advisory Committee in the Constituent Assembly was to protect the minorities with respect to their language, script and culture. The terminological reference to the now identified class of minori-ties was ‘sections of citizens.’ The Motilal Nehru Commission or the Sapru Commission never tried to define the term minority. “The progressive intelligentsia represented by Nehru also rejected the notion of a nation based on ethnic feelings or with religious communities as propounded by Hindu nationalists or the Muslim League. While religious communities were acknowledged from a cultural point of view, they were not given official recognition in social and political terms. The reluctance on the part of the government towards any official protection of the religious minorities reflected a more general attitude; its emphasis was as much on national unity”.2

In Indian context, the term ‘minority’ encompasses groups of every possible type—racial, linguis-tic, religious, territorial and in addition groups unique to Indian society: minorities on the basis of inferior caste status. According to Indian official terminology, ‘minority’ has a more restrictive range and refers only to the religious minorities. The National Commission for Minorities Act, 1992, says that “Minority for the purpose of the Act, means a community notified as such by the central gov-ernment”- Section 2(7). Acting under this provision, on 23rd October 1993, the central government notified the Muslim, Christian, Sikh, Buddhist and Parsi (Zoroastrian) communities to be regarded as “minorities” for the purpose of this Act.

INDIAN CONSTITUTION AND MINORITIES

Regarding the concept of “minority” in the Indian context, the Constitution of India uses the word ‘minority’ or its plural form in some Articles – 29 to 30 and 350A to 350 B – but the term has not been properly defined anywhere in the Constitution. But “minority status” has been conferred on many groups. The purpose of creating minorities stems from Article 29 and 30 which guarantees minorities the following privileges:

i. According to the Article 29 of the Constitution:

(1) any section of the citizens residing in the territory of India or any part thereof hav-ing a distinct language, script or culture of its own shall have the right to conserve the same, and

(2) no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

ii. Article 30 is a minority-specific provision that protects the right of minorities to establish and administer educational institutions. It provides:

(1) “That all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”.

2. Varshney, Ashutosh, ed, India and the Politics of Developing Countries, Sage Publications, New Delhi, 2004, pp- 127-128.

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(2) It further provides that “the State shall not, in granting aid to educational institu-tions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion and language”.3

From the thorough perusal of the Constitution of India it is found that the expression “minorities” has been employed only at four places in the Constitution. Article 29 has the word “minorities” in its marginal heading but speaks of “any sections of citizens…. having a distinct language, script or culture.” This may be a whole community generally seen as a minority or a group within a majority community. Then again the expression minorities or minority has been employed in head note of Article 30 and Sub-clauses (1) & (2) of Article 30. At this stage it may be noted that the expression “minorities” has been used in Article 30 in two senses- one based on religion and other on the basis of language.

At the Census 2001, out of 1,028 million population, little over 827 million (80.5 per cent) have returned themselves as followers of Hindu religion, 138 million (13.4 per cent) as Muslims or the followers of Islam, 24 million (2.3 per cent) as Christians, 19 million (1.9 per cent) as Sikh, 8 mil-lion (0.80 per cent) as Buddhists and 4 million (0.4 per cent) are Jains. In addition, over 6 million have reported professing other religions and faiths including tribal religions, different from six main religions.4

Representing 13.4 per cent (138 million) of India’s population, Muslims constitutes India’s largest religious minority. The community is living in all parts of the country with varying concentrations,. This figure is estimated to have crossed the 150 million mark in 2006. According to the official es-timate, the share of the Muslim population would rise ‘somewhat’ and stabilise at just below 19 per cent in the next four decades (320 million Muslims in a total population of 1.7 billion). Of the 593 districts in India only nine are predominantly Muslim (over 75 per cent of the population is Mus-lim). These include Lakshadweep and eight districts in Jammu and Kashmir. Only 11 districts have a Muslim population of 50 per cent to 75 per cent. These are in Assam, Jammu and Kashmir, West Bengal, Kerala and Bihar. However, only 13 per cent of Indian Muslims live in these districts. Thirty-eight districts have a Muslim population between 25 and 50 per cent. These districts account for 22 per cent of Indian Muslims and are in states such as Uttar Pradesh, West Bengal, Kerala, Assam, Bihar, Jharkhand and Delhi. In 182 districts, Muslims constitute between 10 and 25 per cent of the population and 47 per cent of all Muslims reside in these districts. As many as 77 districts have less than one per cent Muslims5. Muslims are the second largest religious group after the Hindus. The Muslims occupy an important position in Indian society and civilisation. Muslims are one of them who constitute the largest minority of the country and one of the largest Muslim communities in the world. Indeed, India has the second largest Muslim population in the world after Indonesia.6

MINORITIES AND LEGAL SAFEGUARDS

The Universal Declaration of Human Rights 1948 and its two International Covenants of 1966 de-clare that “all human beings are equal in dignity and rights” and prohibit all kinds of discrimination – racial, religious etc. The UN Declaration against all Forms of Religious Discrimination and Intoler-

3. Dr. D.D. Basu, “Introduction to the Constitution of India”, 19th Edition, 2002, pp-391.4. Source: Religion, Census of India 2001.5. Rowena Robinson “Indian Muslims: The Varied Dimensions of Marginality” Economic and Political Weekly March 10, 2007, pp- 842. 6. Farasat Ali Siddiqui, Nazmul Hussain* and Akram Hannan, “ Literacy and work participation among Muslims in Uttar Pradesh” Journal of Geography and Regional Planning Vol. 4(6), June 2011, pp. 305-325.



ance 1981 outlaws all kinds of religion-based discrimination. The UN Declaration on the Rights of Minorities 1992 enjoins the States to protect the existence and identity of minorities within their respective territories and encourage conditions for promotion of that identity; ensure that persons belonging to minorities fully and effectively exercise human rights and fundamental freedoms with full equality and without any discrimination; create favourable conditions to enable minorities to express their characteristics and develop their culture, language, religion, traditions and customs; plan and implement national policy and programmes with due regard to the legitimate interests of minorities; etc.7

The Indian Constitution provides many legal safeguards to the minority community and special provisions are made for their social and economic growth. Articles 15 and 16 of the Constitution prohibit the state from making any discrimination on the grounds only of religion, race, caste, sex, de-scent, place of birth, residence or any of them either generally i.e. every kind of state action in relation to citizens (Article 15) or in matters relating to employment or appointment to any office under the state (Article 16). This is supplemented by the constitutional provisions that protect religious liberty. Article 25 gives all religious communities the right to ‘profess, propagate and practice’ their religion.

Professor Gurpreet Mahajan writes, “When India gained Independence in 1947, the political leader-ship and the framers of the Constitution took note of this diversity, and they deliberated on a frame-work that would provide for a unified but culturally diverse nation-state. It is pertinent to note that the right to propagate one’s religion was included in deference to the concerns of the minority com-munities, particularly Muslims and Christians, who maintained that preaching and propagating their faith was an essential part of their religion”.8

MUSLIM MINORITy AND MARGINALISATION

The Indian Sub-continent prior to its partition has been known for its syncretic culture. Indian Mus-lim civilisation was regarded by Muslims throughout the world as one of the jewels of Islamic civilisa-tion. And, until the division of the sub-continent’s Muslims into at first two and then three nations, it was undoubtedly considered as one of the great national traditions within Islam. Partition of the sub-continent into two nations India and Pakistan was a political decision which brought untold sufferings for both Muslim and Hindu communities. The creamy layer of the Muslim population mi-grated to Pakistan, but the majority of them decided to stay back with secular India instead of Islamic-Pakistan. For the large Muslim majority it was a conscious but a difficult choice to stay back and as a result they gradually came to occupy a minority status. During the period before and after partition, both Hindus and Muslims were subjected to the worst forms of communal violence. Even after years of partition, Muslims continue to face the prejudiced attitudes. Their loyalty to India is considered suspicious and their attachment to their cultural and religious heritage is seen as a rejection of their Indian heritage and a subscription to a pan-Islamic identity. As commentator Praful Bidwai writes, “An inconvenient and ugly truth stares us all in the face: India has betrayed the solemn pledge it made six decades ago to build an inclusive, plural and secular society which would equitably integrate its religious minorities while respecting their distinct identities and honouring difference. This is par-ticularly true of our largest minority community, Muslims”.9

7. Justice Ranganath Mishra, “Report of the National Commission for Religious and Linguistic Minorities.” Ministry of Minority Affairs, Government Of India, 2007, pp-4.8. Professor Gurpreet Mahajan, “Negotiating Cultural Diversity and Minority Rights in India”, Democracy, Conflict and Human Security: Further Readings, December, 2006, pp-113.9. Praful Bidwai, “Combating Muslim exclusion”, Frontline, Volume 23 - Issue 23 :: Nov. 18-Dec. 01, 2006.

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With the growth and rise of anti-Muslim right-wing Hindu chauvinistic forces Muslims gradually became isolated and withdrawn from the mainstream life. This process further prevented the Muslim community to be an active part of development process and growth in India. They were increasingly subjected to chronic prejudice based on ignorance and stereotypes. The process of social and eco-nomic marginalisation has cumulatively resulted in the increased backwardness of Muslim popula-tion all over India.

As Dr. Pandya points out, “Muslims are thus bewildered by the insidious questioning by non-Mus-lims of their place in Indian national life and puzzled by the calumny that they are anti-national and disloyal. The physical insecurity of Muslims has led them to acquiesce in increasing physical and cultural separation from non-Muslims, and the term “apartheid” is sometimes used to describe this situation. Muslims feel alienated from the government and society, and a sense of second-class citi-zenship despite the fact that the Indian Constitution guarantees all citizens equal rights. Indeed, the phrase “contested citizenship” is often used by Muslims to describe their perception of how the mainstream and majority discourse treats them”.10

After more than 60 years of Independence, Muslims are still drowned in the scourge of poverty and backwardness. They had been the victims of a process of marginalisation and invidious discrimina-tion. Ahmed I. explains, “As considerable evidence exists, a process of marginalisation of minority communities exists in almost all societies and there is nothing to warrant that the same is not true of Muslims in India to a greater or a lesser degree.11

Social scientists Timur Kuran and Anantdeep Singh of Duke University have explored historical roots of the underperformance and backwardness of India’s Muslim minority. “India’s Muslim mi-nority, as of the early twenty-first century around 12 per cent of its ethnically and religiously diverse population, lags behind the country’s Hindu majority economically. The average household income for Muslims is 76.6 per cent and per capita income 72.4 per cent, of the corresponding figure for Hin-dus. In rural areas, the typical Muslim-owned farm is only 41.1 per cent as large as the typical Hindu-owned farm. Muslims have relatively lower labor participation rates and higher unemployment rates in both cities and the countryside.12

According to sociologist Y. Sikand, “Muslims are the largest minority community and their presence is visible in all the states and union territories in India. “Various studies conducted during the past decade amply show that Muslims have been increasingly socially and economically marginalised on the whole, although there has, admittedly, been some progress in some small pockets. This limited progress has, however, been largely independent of state efforts. For its part, the state appears to have deliberately or otherwise played a somewhat indifferent, and, in some states, clearly hostile attitude to social, economic and educational advancement of Muslims”.13

In her paper, Molishree has shown the redundancy of Article 29 and 30 that are supposed to be the constitutional safeguards for minorities. In the concluding part of her research paper she remarks, “From the sunshine of the facts that emerged out of research, I came to the upshot that every suc-cessive government since Independence has paid lip service to the causes of the amelioration of the

10. Dr. Amit A. Pandya, “Muslim Indians: Struggle for Inclusion” in “Regional Voices: Transnational Challenges”, The Henry L. Stimson Center, Library of Congress, Washington, DC, 2010, pp-57.11. Ahmad, I. (2007). “Exploring the Status of Muslims in the Economy”, Economic and Political Weekly, Vol. 42, No. 37, September 15, pp-3703-3704.12. Timur Kuran and Anantdeep Singh, “Economic Modernisation in Late British India: Hindu-Muslim Differences”, December 2010, Pg.113. Sikand, Y. “Survey of Socio-Economic Conditions of Muslims in India”, http://www.countercurrents.org/comm-sikand090206.n. February 9, 2006.



fate of the minority. The enactment of Article 29 and 30 was also designed and contrived as a part of electoral politics and minority appeasement. Behind the facade of minority upliftment, flows the subterranean current of divisive politics and a desire to perch oneself as the cockpit of power”.14

Sociologist Y. Sikand has argued that in the post-Independence period many secular parties have used the card of Muslim welfare for political gains by promoting the most reactionary elements of the community and at the same time the right-wing Hindu groups have repeatedly accused these parties for appeasing the Muslim community. “In reality the ordinary Muslim was left to his fate and the few development schemes devised for uplifting the community were never made effectual. Economic and educational deprivation reduced the community’s ability to seek relief from govern-ment development schemes. Discrimination in various walks of life and police repression and often active collaboration and instigation by state authorities during communal riots further demoralised Muslims, caused loss of confidence in secular forces and resulted in withdrawal symptoms and a siege mentality.”15

MUSLIM MINORITy: DISCRIMINATION AND VIOLENCE

Muslim community’s discontent has been deep rooted in Indian social context. It has been the re-sult of a long held sense of injustice being nourished by the community. Observers believe that this discrimination has assumed an institutionalised form against the country’s largest minority group. There is an increasing sense of disgust across different sections and classes of the Muslim commu-nity as they are viewed increasingly anti-national and required to prove their loyalty and patriotism towards the Indian nation. According to Dr. Amit A. Pandya, “The predominant post-Independence nationalist pride at the continuing presence of Muslims and Muslim heritage in secular India, distin-guished from the narrowly religious identity of Pakistan, has now been replaced by suspicion. The celebration of India’s Muslim heritage has been replaced by cultural irritation. The celebration of the role of many prominent and distinguished Muslim leaders in the nationalist freedom struggle has now been ignored and increasingly given way to the calumny that Muslims are disloyal to India, with pejorative references to their localities as “Pakistan” and the suspicion that they support subversive activities. Such suspicions mark popular perception, and are subtly and not so subtly promoted by many in the media.”16 “Muslims carry a double burden of being labelled as “anti-nationals” and being appeased at the same time. The fact that the so-called appeasement has not resulted in any benefits, is ignored. Identity markers often lead to suspicion and discrimination by people and institutions. Discrimination too is pervasive in employment, housing as well as schooling matters”.17

India is considered a biggest democracy in the world but contrary to the democratic ideals and tradi-tions it also symbolises a dominant culture marked by injustices, exclusions, indignities, curtailments of life and liberty of millions of its citizens. The post-Independence period has also witnessed a proc-ess that has been responsible to relegate Muslims as the largest minority community to the lowest socio-economic stratum amongst all religious minorities. Growing instances of violence particularly targeting the minority community has become a common feature in the public arena which was further strengthened by sustained campaigns to spread communal sentiments and hatred within the

14. Molishree. “Minority Educational Institutions: A Critical Analysis”, CCS Working Paper No. 154, Summer Research Internship Program 2006.15. Sikand, Y, Ibid, February 9, 2006.16. Dr. Amit A. Pandya, op cit, 2010, pp-28. 17. Rakesh Basant, “Social, Economic and Educational Conditions of Indian Muslims”, Economic and Political Weekly, March 10, 2007, pp-828.

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communities. “India could not free itself of curse of communalism even more than 50 years after In-dependence. If anything it has been getting worse year after year. There has been not a single year in post-Independence period, which has been free of communal violence though number of incidents may vary”.18

Professor Sarabjit Kaur points out if one studies India’s political history, then one finds that it is dot-ted by numerous such communal riots. “The inability to control communal violence leads to the weakening of the faith of the minority in the political system. They see it as dominated by the domi-nant community. The middle class, especially the elite Hindu middle class, is complacent. The poor and lower-caste Hindu community is silent. This silent majority has no opinion primarily because it has no confidence that its opinion matters”.19

Muslims continue to live and fight with the fear of communal riots posing threats to their religious and cultural identity. More often the community has become the victim of pogrom in which in-numerable Muslims are killed; their shops are burned, their women are beaten and raped and their property is destroyed and looted. Professor Gurpreet Mahajan points out that episode of communal violence challenge the fundamentals of cultural diversity and exist as a constant reminder of the vulnerability of the minority communities. “Communal violence not only vitiates existing bonds but also generates a feeling of mistrust among communities. It thrives by systematically demonising the ‘Other’, and this undermines even existing structures of interaction. What is strengthened, on the one hand, is intra-community rather than inter-community bonds and, on the other, a traditional and more orthodox leadership, which is more insular and hostile to the expression of differences within the community. The paradox then is that, while cultural diversity finds space in the public arena, inter-cultural dialogue and interactions have diminished. The majority community sees the accommodation of diversity as ‘appeasement’ of the minority and the minority remains vulnerable and diffident, unable to contribute significantly to the public and political life of the polity”.20 Md. Mainuddin in his study on socio-economic conditions and political representation of Muslims in West Bengal has explained that insecurity about their culture and identity is the end result of com-munal riots which is a two-way process.21

Historians and anthropologists have focused their studies on the rise of religious nationalism in South Asia in the context of modernisation and change. Some scholars argue that divisive and con-frontationist theoretical frameworks not only distort day-to-day realities of Muslim lives but also perpetuate commonly held stereotypes and clichés about Muslims in India through their empirical research. The historical narratives containing this kind of skewed perception about Muslim commu-nity can be attributed to the colonial legacy.

B.D. Metcalf writes, “The British historians were keen to project Muslims as outsiders and conquer-ors of India and to focus on instances of Muslim persecution of Hindus, in order to present the Brit-ish rule as a comparative blessing. However, what is worrying, according to Metcalf, is the recent resurrection in Indian public life (coinciding with the rise of Hindu nationalist party in the 1980s) of divisive historical narratives that “define the nature of India’s people and draw the boundaries of citizenship. These narratives present Muslims as foreign invaders. Metcalf says that the destruction of Babri Masjid (a mosque constructed by Mughal ruler, Babur, in the 16th century) in 1992 and the

18. Engineer, Asghar Ali (2002), Communal Riots in India, www.sacw.net/2002.19. Sarabjit Kaur, “Minorities in India”, Mainstream, Vol XLVII, No 31, July, 2009.20. Professor Gurpreet Mahajan, “Negotiating Cultural Diversity and Minority Rights in India”, Democracy, Conflict and Human Security: Further Readings, December, 2006, pp-121.21. Md Mainuddin, “Socio-Economic Conditions And Political Representation of Indian Muslims: A Study of West Bengal”, International Refereed Research Journal, Vol.– II, Issue –4,Oct. 2011, pp-124.



violence perpetuated on Muslims, was part of a pogrom for public action, which was sanctioned by revival of narratives defining Muslims as outsiders and conquerors. Muslims were being given the choice to either assimilate or leave.”22

India has faced communal riots since Independence. Studies and assessment of the justice and repa-ration process of riots over the last 66 years of Independence, have found that on most counts victims have failed to get justice and the perpetrators have never been held accountable in the absence of any strong and exclusive legislative tool to address this violence. In all these cases, existing provisions of Indian Penal Code have proven inadequate in addressing targeted violence. Maya Chadda explains in her paper that a wide gap exists between laws and the reality of minority conditions. “Despite a relatively impressive array of constitutional and legislative guarantees, and the establishment of a broad range of institutions, autonomous bodies and commissions to monitor and protect the rights of minorities, India’s disadvantaged and marginalised segments find their access to power and judi-cial redress blocked by a coalition of powerful forces. Minorities face discrimination, violence and atrocities. Constitutional and legislative protections have not prevented periodic pogroms against religious minorities, as in Gujarat in 2002, when more than 2,000 Muslims were killed”.23

Social scientists studying issues related to Indian political stability and social integration or in human rights more generally opine that killings of Muslims in Gujarat was merely the latest in a series of events in the more than six decades since Independence that had drawn attention to the vulnerability of Muslim communities in India. According to Dr. Amit Pandya, “there is also a widespread sense in India that the 20th century pattern of chronic ‘communal’ violence has taken on a new significance. There is a concern that a new nexus between state officials or institutions and extremist anti-Muslim organisations simultaneously constitutes a new threat to law and order and a debilitation of state capacity to respond. There was credible evidence in Gujarat—for example, accounts of senior police officials—that the highest level of state officials had colluded in mob-violence”.24 Evidences and ma-terials gathered by the Nanavati Commission probing the 2002 Gujarat communal carnage point to the systematic collusion of state institutions in perpetuating the violence against Muslims.

The Srikrishna Commission Report of 1998 on the anti-Muslim rioting in Mumbai in December 1992 and January 1993 following bomb attacks on the Bombay Stock Exchange, and Justice Lib-erhan Commission Report looking into the events surrounding a Hindu mob’s demolition of the Babri Mosque in Ayodhya, Uttar Pradesh, in December 1992, unequivocally conceded in their find-ings that violence was planned and rejected the notion that the riots were spontaneous eruptions of Hindu anger and that the right-wing Hindu mobs acted at the behest of senior political leaders and in collusion with state officials and police who had been complicit through acquiescence and inaction.

LAWS AND SECURITy

The aggressiveness and arbitrariness of state institutions against Muslims have been fueled by a grow-ing popular perception that terrorism in India is a specifically Muslim phenomenon, and that many otherwise innocent Muslims tolerate or are sympathetic to it. The sense of insecurity experienced by the Indian Muslims has been compounded in recent years by the state repression and terrorism un-der such ‘draconian’, anti-terrorism laws as the Terrorist and Disruptive Activities (Prevention) Act

22. Metcalf, B. D. (1995). Too Little and Too Much: Reflections on Muslims in the history of India, Journal of Asian Studies, Vol. 54 No. 4, pp-951-2.23. Maya Chadda, “Minority Rights and Conflict Prevention: Case Study of Conflicts in Indian Jammu and Kashmir, Punjab and Nagaland”, Minority Rights Group International, United Kingdom, August 2006, pp- 1-2. 24. Dr. Amit A. Pandya, op.cit, 2010, pp-10.

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(TADA) and the Prevention of Terrorism Act (POTA) which allow the authorities to hold people for weeks and months without charge. In recent years the taint of “terrorism” has been invoked time and again as an easy pretext to use anti-terrorism laws against Muslims especially youth, in the form of arbitrary or illegal detention, arrest and torture of alleged terrorist suspects, often on the basis of no evidence.

Under the TADA, 79,332 people, mostly Muslims, were detained and tortured during 1990-95 across the country. Though the Act has been repealed, yet about 5,000 persons, mostly Muslims, are still in jails. “The present environment of fear and terror is due to the abuse and misuse of anti-terror measures. Time and again one comes across the news items in the media wherein the needle of the doubt of police and intelligence in different incidents related to terrorism seems to be pointed to minority communities and other weaker sections and afterwards persons belonging to these sec-tions are taken into custody. They are reported even to be forced to confess to own allegations in the custody and interrogation cells. There also come such examples wherein persons are found innocent and acquitted after spending several years in jails”.25

India’s popular investigative magazine “Tehelka” found than an overwhelming cases of arrest per-taining to minority community in terrorist acts are based on non-existent and fraudulent evidences. Hundreds of people, mainly Muslims and poor, were persecuted and falsely accused of terrorism. Justice Rajinder Sachar made his observations in his report, “While Muslims need to prove on a daily basis that they are not “anti-national” and “terrorists”, it is not recognised that the alleged “appease-ment” has not resulted in the desired level of socio-economic development of the community”.26 The ideologues of right wing Hindu nationalism continue to justify violent outrage against Muslims outrages linking it with the increasing number of of terrorist incidents in India and blame the Indian Muslims for harboring sympathetic attitude towards such occurrences. Muslim community in gener-al expressed its anger to the fact that they are constantly looked upon with a great degree of suspicion not only by certain sections of society but also by public institutions and governance structures. This perception has been largely responsible for adverse affects on the attitude of the whole community. There is a growing belief among Muslims that the state and the media both facilitate the process of portrayal of a stereotypical image of their community.

SOCIO-ECONOMIC ExCLUSION

The Indian State, till date, has not effectively been able to protect this minority, which is evident from the widening gap in development indicators, marginal rate of growth (slowest amongst all the social and religious groups), and absence of a strong policy and legal framework targeting the forces of exclusion. Dr. Nazeer Udin uses various socio-economic indices to describe the process of social exclusion and consequent discrimination against Muslims. He describes Muslim minorities as so-cially excluded group and this social exclusion exists in the form of segregation -- socially, politically, economically, culturally, and educationally in Indian society. Social exclusion involves a denial of available opportunities to ameliorate one’s economic status to escape deprivation through one’s ef-forts. “So, even though the economy may grow and general income levels may rise, excluded people are likely to be left behind, and make up an increasing proportion of those who remain in poverty. Ex-clusion does not cause poverty through a simple sorting of those who are “in” or “out”, those who can

25. Document on Terrorism and Justice, National Convention on “Terrorism and Justice”, All India Milli Council, April, 2008, New Delhi. 26. Sachar Committee Report, “Social, Economic and Educational Status of the Muslim Community of India”, Government of India, November, 2006, pp-11-12.



or cannot participate in society. Socially excluded groups often do participate in economic growth processes, but they do so on unequal terms”.27

Dr. Amartya Sen has analysed the impact of various inequalities on communities. For instance un-employment affects individuals, creates family crisis and lower skills which reinforces the process of social exclusion. Socially excluded groups are at a disadvantaged position and exploited in the labour market. Sen describes this phenomenon as “unfavourable inclusion” namely, through differential treatment in the terms and conditions of a contract, discrimination in the price charged and received by discriminated groups, in fees and services for water and electricity, rent on houses, and paying a higher price for goods bought. According to Sen, racial and gender inequalities are more likely to be intensified as a result of massive unemployment emphasising on the points that costs will never be adequately reflected in market prices”.28

There is widely held belief that Muslims have remained largely unaffected by the process of economic development and social change that have been taking place in the country and their general econom-ic condition has been deteriorating progressively. They have negligible influence on the process of economic development. They have lagged behind the Scheduled Castes in many walks of life. In a pa-per by Farasat Ali Siddiqui and others, authors have pointed out that the socio-economic condition of Muslims have not improved much before and after the Independence. In post-independent India, significant minority community especially Muslims, has been reduced to the lowest socio-economic stratum. They are educationally most backward, economically poor and politically a powerless com-munity of the country. In his study on the causes of unrest among Indian Muslims in 1870, Sir Wil-liam Hunter has made his remarks and wrote, “Earlier it was impossible for a well-born Musalman to become poor; at present it is almost impossible for him to continue rich”.29

The fact is that substantial differences are found in the socio-economic and political representation of major religious communities in India. Farasat Ali Siddiqui and others have observed that “religious communities show inequality consequent upon diverse socio-cultural and economic status which causes human group disparities. For instance, higher population growth rate among Muslims can, to some extent, be associated with their lower socio-economic status. Demographers explain this in terms of the time lag and delayed changes in proximate variables between different religious groups in undergoing demographic transition”.30

Among all the religious communities, Muslims are the most socio-economically underdeveloped and politically under-representated community in Indian society. In this regard the Sociologist A. Dasgupta has aptly pointed out that the underprivileged sections of this numerically significant mi-nority group have not received social and political support from the state, if their position is com-pared with their counter part in the Hindu community. Comparatively, the poor situation of Muslims is similar in various Indian states except the southern region”.31

Until recent times there were no reliable statistics to explore the situation of Muslims including other religious minorities in India. For the first time, the data on socio-economic indicators of Muslims

27. Dr. Nazeer Udin, “Muslim Minority Exclusion and Development Issues: Need for Inclusive Policy, ZENITH, International Journal of Multidisciplinary Research Vol.2 Issue 1, January 2012, p-396. 28. Sen, Amartya, “Inequality, unemployment and contemporary Europe”, International Labour Review, 136(2) 1997, pp- 155-72.29. Hunter, W W, “The Indian Musalmans”, Indological Book House, London, 1969, p- 158.30. Farasat Ali Siddiqui, Nazmul Hussain* and Akram Hannan, “Literacy and work participation among Muslims in Uttar Pradesh”, Journal of Geography and Regional Planning Vol. 4(6), June 2011, pp-305-325.31. Dasgupta, A. (2009), “On the Margins: Muslims in West Bengal”, Economic and Political Weekly, Vol. 46, No 16, April 18, pp-91-96.

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was released by National Sample Survey Organisation (NSSO) through its 43 round survey con-ducted during 1987-1988. But, the Census of India (2001), for the first time in post-independent India, came out with religion-wise data on few socio-economic indicators like sex-ratio, literacy level and work rate. Many scholars have analysed the available data which reveals that the presentation of Muslims is poor in most of the socio-economic indicators like literacy, work participation rate, land ownership, government jobs and school continuation rate. The available data on the socio-economic profile of Muslims show that their community in India has remained socially and economically back-ward. Marginalised status of Indian Muslims is not merely confirmed by individual researchers and surveys of voluntary organisations but also by committees of government from time to time. In this regard the Sociologist Y. Sikand has noted in his paper, “The fact of overall Muslim marginalisation since 1947 is well-known, and has been highlighted by numerous studies and even by various com-missions set up by different governments. Often, these commissions were simply political gimmicks. They submitted their reports and made various recommendations to the government to address the marginalisation of the Muslims. Yet, the government took little or no heed to these suggestions, using the commissions simply as vote-grabbing gimmicks in order to give the impression of being serious about Muslim ‘backwardness’, but, in fact, doing precious little about it”.32

DEVELOPMENT DEFICIT: COLONIAL LEGACy

A closer look at the historical records reveals that the social, economic and political status of Indian Muslim minority community has formed the part of official debates for several years in the past. Studies have been sponsored to assess the status of Muslims by the governments which also pro-vided the basic framework to develop a possible administrative mechanism to deal with the situation. As early as the 19th century, Monstuart Elphinstone, the legendary British administrator, put it on record that special measures were required to uplift the backward sections of the Muslim community. Studies conducted by the British administration led to the passage of a Government Act in 1935 of-fering Dalit Muslims reservation facilities along with Dalit Hindus”.33

It has been argued by several scholars that social injustice to the Muslims and official inaction in the matter is a British colonial legacy that is still maintained by the ruling classes of independent India. Under-representation of Muslims in the educational and employment sectors in the coun-try has been consistent all along and the problem remains largely unresolved till this day. Dr Tahir Mahmood, former Chairman of the Indian National Minorities Commission, writes that Sir William Hunter had studied the causes of Muslim unrest in the country in the 1870s at the behest of the Vice-roy, Lord Meo. Hunter analysed some authentic data on Muslim’s representation in government sec-tors especially in the Muslim-concentration province of Bengal. “Among its findings were the figures that follow: ‘Assistant Engineers (III Grade): Hindu 14, Muslim 0; Sub-engineers & Supervisors: Hindu 24, Muslim 1; Overseers: Hindu 63, Muslim 2; Accounts Department: Hindu 50, Muslim 0; Registered Legal Counsel: Hindu 239, Muslim 1’, and so on. The study lamented that ‘there is in fact now in Calcutta hardly any government office where a Muslim can hope to get anything more than the job of a guard, peon or attendant.’ There is, however, nothing on record to show that any concrete steps were ordered by the Viceroy to correct the imbalance and injustice prevailing in the government offices in respect of employment of Muslims as revealed by this study made under of-ficial patronage by a respectable Englishman of the time”.34

32. Sikand Y, opcit, February, 2006.33. Venkitesh Ramakrishnan, “Community on the margins”, Frontline Volume 23 - Issue 24 :: Dec. 02-15, 2006, pp-4. 34. Tahir Mahmood, “From William Hunter to Rajinder Sachar” Indian Express, Sunday, Nov. 19 2006.



DEVELOPMENT DEFICIT: POST-INDEPENDENCE PERIOD

Dr. Gopal Singh Panel

For the first time in 1982 a joint memorandum was submitted to the then Prime Minister, Indira Gandhi. She appointed the high power panel under the chairmanship of Dr Gopal Singh to study the status of minorities and other backward classes as beneficiaries of government’s fiscal policies and welfare schemes and recommend measures for the economic and social uplift of the minorities. The ten-member panel submitted on 14 June, 1983, a 118-page ‘Report on Minorities’ with 205 pages of annexure containing extensive data on the ‘participation and performance’ of minorities in education and employment, their share as beneficiaries in rural development and place in the indus-trial sector, and the role played by financial institutions in respect of their welfare. But for an unduly long period the Gopal Singh Panel Report remained a closely guarded secret despite demands for its release and no action was ever taken on its recommendations. The report of the Dr. Gopal Singh Committee stated that data were not available in any public office about the benefits accruing to the religious minorities. As such the committee had formulated its observations with data from only 80 districts. According to its member secretary Rafiq Zakaria, “the panel sent out 200 research teams to every state to collect data on a sample survey basis so as to assess the actual situation in every field – employment in government, in private sector undertakings, in the cooperative sector, in local bodies and even in private industries and businesses. For almost four years they worked, travelling from one place to another. What they gathered proved an eye opener: the economic condition of Indian Muslims was worse than the Scheduled Castes.”35 Further it is said that the two-volume report was submitted to the then Prime Minister Indira Gandhi but it was never made public, even though the panel was appointed by the government. The report, in the words of Zakaria, “sent shock waves through the corridors of South Block, Mrs Gandhi said it is best to shelve the findings. She told me that a post mortem never helped, it would be prudent to forget the past and plan for the future”.36

Painting a rather dismal picture of the position of Muslims, the panel made a large number of rec-ommendations for its improvement through various short-term and long-term measures. The panel found that at the national level, Muslims and neo-Buddhists are the most educationally backward communities (GOI, 1983). The panel also found that their economic condition was poorer than that of Scheduled Castes and Scheduled Tribes. They were deprived of benefits of developmental schemes which government launched for ameliorating conditions of poor and marginalised sections of the society. They were under-represented in the government services and decision-making bodies. The poor among the Muslims could not avail the opportunities in education, employment and eco-nomic activities because of isolation and various historical factors. Educational condition of Muslims has not improved till date despite the government’s policy of Area Intensive and Madarsa Modernisa-tion Programme, launched in 1992, for their educational uplift in the wake of findings of Dr. Gopal Singh Committee. “In the report, Dr. Gopal Singh Committee maintained that there was a ‘sense of discrimination prevailing among the minorities’ and that it must be eliminated, root and branch, if we want the minorities to form an effective part of the mainstream”.37

35. Omar Khalidi in his book,“ Muslims in Indian Economy”, quotes and talks about Gopal Singh Committee Report, for further knowledge see Rafiq Zakaria, “The Widening Divide: An Insight into Hindu Muslim Relations,” 1995, pp-163. 36. Ibid, pp-163. 37. Venkitesh Ramakrishnan, “Community on the margins”, Frontline Volume 23 - Issue 24, Dec. 02-15, 2006, pp-4.

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Justice Ranganath Mishra Commission

In 2004, the UPA Government had also appointed the National Commission on Backward Religious and Linguistic Minorities under the chairmanship of Justice Ranganath Mishra, a former Chief Jus-tice of India. The commission submitted its report to the government in May 2007. This commission emphasised the deplorable condition of Muslims on socio-economic indicators and made definite recommendations for 15 per cent reservation for the religious minorities, of which 10 per cent exclu-sively for the Muslims in central and state government jobs, plus the unutilised part of the other five per cent in education, government employment and development benefits, apart from other valuable ideas for their uplift. The recommendations of the Ranganath Mishra Commission Report are yet to be implemented.

Justice Rajinder Sachar Commission

This is true that every common citizen of the country is deprived from the gains of economic growth but the quotient of this deprivation is more amongst the Muslim community. No improvement in the living conditions of Muslims has taken place in the last 23 years. This came into light from the findings of the Prime Minister’s High Level Committee under the chairmanship of Justice Rajinder Sachar, constituted in 2005. The committee was set up with the main objective of assessing the social, economic and educational status of Muslims in the states, regions, districts and blocks that they live in, their livelihood activities, their levels of socio-economic development and their asset base and income levels relative to other groups. The Sachar Committee also looked into the issue of classifi-cation of certain Muslim groups into ‘other backward classes’ (OBCs) and their share in total OBC population. The committee collected data from the various censuses, the National Sample Survey Organisation (NSSO), banks and from the central and state governments. The members of the com-mittee visited different parts of the country to assess the grassroots situation and grasp the realities by experience rather than merely with the help of statistics brought to their desks by investigators. The committee tried to sift the perception of members of the Muslim community (as well as of non-Muslims) and understand the nature and magnitude of the community’s grievances, to be able to judge the veracity or otherwise of the expressions of negligence and deprivation.38

The Report of the Committee, submitted in 2006, has become a landmark in documenting the social, economic and educational status of Muslims, based on pooling together extensive information hith-erto scattered across different sources. Key findings of Justice Rajinder Sachar panel looking into the state of the Muslims in India show that there is no state where the representation of Muslims matches with their population share. Be it education, health, transport, or home, in virtually all departments of state governments, the share of Muslims employed is way below their share in the population.

“The Sachar Committee Report was the first that went beyond the coverage of minorities in general to specific reference to the Muslim community. It revealed the failure of India’s policy, declared since Independence, of inclusion of the Muslim community, designed to counter what were looked upon as the specious arguments that had precipitated partition. The diligently reasoned report established extreme deprivation of Muslims in India and the demeaning status that the community had been reduced to, labouring under numerous exclusionary situations of violence, insecurity, identity crisis, discrimination in the public sphere, and, in the inevitable aftermath of India’s bloody Partition, sus-picion from other communities, of being ‘unpatriotic”.39

38. Anees Chishti, “Sachar Committee Report: A Review”, Mainstream Vol. XLV No 01, December 23, 2006.39. Wajahat Habibullah, “Social, Economic and Political Status of Muslim Indians- The Role of India’s National



The report unambiguously states, “Our analysis shows that while there is considerable variation in the conditions of Muslims across the states, the community exhibits deficits and deprivation in prac-tically all dimensions of development. In fact, by and large, Muslims rank somewhat above Sched-uled Castes and Scheduled Tribes but below other backward classes (OBCs) of Hindu communi-ty, other minorities and Hindu-general (mostly upper castes) in almost all indicators considered. Among the states that have large Muslim populations, the situation is particularly grave in the states of West Bengal, Bihar, Uttar Pradesh and Assam. Interestingly, despite such deficits, the community has lower infant mortality rates and sex-ratios. In addition to the ‘development deficit’, the perception among Muslims that they are discriminated against and excluded is widespread which exacerbates the problem”.40

In a revealing series of reports entitled “The Missing Muslim” on the poor socio-economic condi-tions of Indian Muslims, Seema Chisti of ‘The Indian Express’ has analysed the key findings of Justice Rajinder Sachar Committee. She observed that severe under-representation of Muslims in govern-ment employment, including Public Sector Units compared to their population percentage may not appear unusual in the light of overall poverty and lack of education in the community but quite star-tling fact is that this under-representation is more visible in more stark a fashion in states where the political establishment has made Muslim welfare a key part of its charter. “For example, West Bengal which has had a three-decade uninterrupted Left Front government and where almost a quarter of the population is Muslim, has one of the lowest shares of Muslims in government employment: just 4.2 per cent. In Bihar and Uttar Pradesh, too, the numbers of Muslims employed in the government are dismal — less than a third of their share of population. When it comes to Public Sector Units (PSUs), often discussed by parties as the “built-in economic safety net,” the figures are equally dis-mal. The highest percentage of Muslims in “higher positions” in state PSUs in Kerala is 9.5 per cent and the lowest is West Bengal which has almost no representation of Muslims in higher positions in state PSUs”.41

The unemployment rate among Muslim graduates is the highest among all Socio-Religious Catego-ries (SRCs), poor as well as non-poor. According to an analysis, in all other States, the percentage of Muslims in government employment is half of their population proportion. The highest percentage figure of government employment for Muslims is in Assam (11.2 per cent) even though it is far less than the State’s Muslim population (30.9 per cent). Minorities other than Muslims are not placed as delicately as the Muslims. According to the committee’s findings, 11 per cent of Group (A) jobs are with minorities other than Muslims. Deprivation of Muslims in the state judicial set-up seems to be among the most worrying aspects of their overall backwardness.

Other statistics are equally grim. Muslims in India have less access to education than other religious groups. As a result, the literacy rate among Muslims is only 59.1 per cent while the national average is 64.8 per cent. School enrolment among urban Muslim boys is only 80 per cent, as compared with 90 per cent of SC/ST boys. Only 68 per cent of Muslim girls attend schools, while the figures for Dalit girls and girls categorised as non-Dalits are 72 per cent and 80 per cent, respectively. The disparity in Graduate Attainment Rates between Muslims and other categories has been widening since 1970s in urban and rural areas. According to the Sachar Committee, Less than four per cent Muslims graduate from school; only one out of 25 undergraduate students and one out of 50 post-graduate students in ‘premier colleges’ are Muslims. The percentage of graduates in poor households pursuing post-

Commission of Minorities”, pp-3.40. Sachar Committee Report, “Social, Economic and Educational Status of the Muslim Community of India”, Government of India, November, 2006, pp- 237.41. Seema Chisti, “Even if govt is employer, Muslims fall off job map”, Indian Express, Friday, Oct 27 2006, New Delhi.

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graduate studies is significantly lower for Muslims: Hindus General (29 per cent); SCs/STs (28 per cent); OBCs (23 per cent); Muslims (16 per cent).

According to calculations mentioned in the committee’s report, using the Head Count Ratio (HCR), overall 22.7 per cent of India’s population was poor in 2004-05. In absolute numbers, this amounts to over 251 million people spread across India. The SCs/STs together are the most poor with the Head Count Ratio (HCR) of 35 per cent followed by Muslims who record the second highest incidence of poverty with 31 per cent people below the poverty line. The committee has observed that the inequality is higher in urban areas compared to rural areas in most States. The poverty figure among urban Muslims is higher, with 38.4 per cent deemed to be living in poverty, as compared with 36.4 per cent of urban Scheduled Caste and Scheduled Tribes.

The Sachar Report points out that communal harassment is increasingly forcing Muslims into im-poverished ghettos: “Fearing for their security, Muslims are increasingly resorting to living in ghet-tos42 across the country. This is more pronounced in communally sensitive towns and cities.” This ghettoisation, in turn, facilitates official neglect and discrimination. It was suggested that Muslims living together in concentrated pockets (both because of historical reasons and a deepening sense of insecurity) has made them easy targets for neglect by municipal and government authorities. Water, sanitation, electricity, schools, public health facilities, banking facilities, anganwadis (day-care cen-tres), ration shops, roads, and transport facilities—are all in short supply in these areas.

According to the report released by ANHAD (a civil society group working on minority affairs) after the national meet on the Status of Muslims in Contemporary India, the per capita level of investment from the side of government for the community is still low. “The scheme for investment in districts with high minority population, at best cover 30 per cent of the total population. The programmes are for area development rather than programmes focused on the minorities; therefore they prove blunt instruments as much of the expenditure is on general infrastructure and little to directly benefit deprived people of the community. They are not consulted about their priorities”.43

Muslims in India are politically alienated and powerless community. The discrimination in various social, economic and educational areas co-exists with low political participation. Their political par-ticipation in mainstream politics is minimal. Muslims are under-represented in the parliament and state legislature. The Sachar Report noted, “One reason for less than adequate participation in the development process may be due to inadequate participation in the governance structures… Over the last sixty years minorities have scarcely occupied adequate public spaces. The participation of Muslims in nearly all political spaces is low which can have an adverse impact on the Indian society and polity in the long run.”44 It is evident from the findings of the Sachar Committee Report that the Muslims in India are deprived and disempowered. For empowerment of any community, it is essential that it is included in decision-making through greater inclusion into public service and po-litical decision-making. “Over the years, it has been realised that the government failed to resolve the question of inherent socio-economic discrimination and political marginalisation of Muslims in participating in the national decision making process through power sharing”.45

42. Laurent Gayer and Christophe Jaffrelot in their book “Muslims in Indian cities- Trajectories of Marginalisation”, use the word ghetto - that has acquired a loose meaning in common parlance - in a very specific manner to designate a place (1) where members of a community gather together irrespective of their class, for safety, (2) where the state has withdrawn and (3) which is badly connected to the rest of the city.43. “What it Means To Be a Muslim in India Today”, a combined report on the Atrocities Committed Against Minority and the Status of Muslims in Contemporary India by ANHAD, New Delhi 2011. 44. Sachar Committee Report, 2006, op.cit, pp-240-241.45. Beg, T. “Economic Development of Indian Muslims: Some Strategic Options”, in The Muslim Situation in India, ed. I. A. Ansari, Sterling Publishers Private Limited, New Delhi, 1989 pp. 116-131.



Illiteracy, ignorance, poverty, and ill-representation in local, state and central level political institu-tions are some of the factors that put the Muslim minority in a vulnerable position which increases the chances of their political exploitation. As a result the community as a whole remains politically disinherited. As A.U. Shaikh aptly remarks, “It is not only Muslim under- representation in elected and public bodies in numerical terms that is so alarming. But rather the fact is that most Muslims who are handpicked to represent their lot and other Muslim beneficiaries of the official patronage system are those who are generally alienated from the community. Some of them are even ashamed of their Muslimness”.46 Muslim participation in the electoral process after Indian Independence does not show the expected improvement. In terms of their population Muslim representation in the po-litical process has been found to be less than 50 per cent after Independence. The implications of this are far and wider. “On the eve of election, Muslims are often referred as ‘pampered community’ and the government’s promises, though seldom fulfilled, are criticised as ‘minorityism’. The vitiated com-munal atmosphere poses more threat to the security of this minority community”.47

DEVELOPMENT DEFICIT: GOVERNMENT’S RESPONSE TO SACHAR COMMIttEE RECOMMENDATIONS

The Sachar Committee Report has given some far-reaching recommendations. Not all of them, how-ever, have been taken up by the government for implementation. The then Union Minister of Minori-ties’ Affairs, A.R. Antulay, in his statement to the Lok Sabha (Lower House of Indian Parliament) on 31 August, 2007, laid down a plan of action for the implementation of the Sachar Committee recommendations that listed improvement of basic amenities targeting 90 “minority concentration districts”. After the publication of Sachar Committee’s report, Centre for Equity Studies, New Delhi, did a rapid evaluation of official measures to highlight the identity-based discrimination and address the development deficits of Muslims in India in the light of the Sachar Committee findings. The study examined critically the working of all the aspects of ‘flagship programmes’ for the development of minorities mainly – the 15-Point Programme and Multi-sectoral Development Programme. These programmes were especially designed to address Muslim backwardness. The 15-Point Programme envisages location of a certain proportion of development projects in minority concentration areas, and provides that, wherever possible, 15 per cent of targets and outlays under various schemes, be earmarked for minorities.

The study has covered various sectors from the point of view of community’s access to education, livelihood opportunities and equal availability of public services. These three major categories in the study has been the part of development deficits which were identified by the Sachar Committee in its report. The study selected three Muslim majority districts in three Indian states: Darbhanga in Bihar, 24 Parganas in West Bengal and Mewat in Haryana. The study team had interactions with many dis-trict and state officials, as well as spoke to large numbers of Muslim women and men. The study high-lighted the repeated patterns of identity-based discrimination and inequity in the implementation of programmes and schemes. The Report highlighted the ineffectiveness of the area development ap-proach of MSDP and the 15-Point in meeting the goals. The implementation strategies could hardly ensure that that a substantial part of its expenditure goes to the targeted section of the community and specific needs and difficulties faced by the community can be solved as desired.

46. Shaikh, A. U. “The Socio-Political Condition of Muslims in India” in The Muslim Situation in India, ed. I. A. Ansari, Sterling Publishers Private Limited, New Delhi, 1989, pp- 160-167. 47. Rab, Sayed Fazle, “Muslim Polity in India during the post-Independent period” in Muslims in Free India: Their Social Profile and Problems, ed. M. K. A. Siddiqui, Institute of Objective Studies, New Delhi, 1998 pp- 33-66.

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The findings of the study reveal that firstly “the scale of government interventions is too small to touch the large numbers who live with these deprivations. Secondly, the imagination of the programmes is limited, because it does not sufficiently identify and address the actual obstacles which bar the educa-tional or economic attainments of Muslim people, and their fair access to public services. And finally, the institutional structures designed to implement these initiatives – right from the Union Ministry of Minority Affairs to implementing officials in districts and below – require further conviction, clout and even a clear mandate to directly battle the socio-economic structural discrimination and denial encountered by the community”.48 The Multi-sectoral Development Programme, launched in March 2008, followed from High Level Committee’s finding of Muslims being concentrated in locations with poor infrastructure facilities. Using the same logic as 15-Point Programme, Multi-sectoral De-velopment Programme is to act as a targeted programme for minorities - to enable ‘focused attention’ of government programmes and schemes – to provide basic amenities and improve opportunities for employment in the identified districts with a concentration of minority population.

The programme was launched in 90 Minority Concentration Districts (MCDs) in 20 states of India. These districts had minority population of 25 per cent or more. Minority concentration districts were identified throughout the country on the basis of the level of backwardness. The criteria in-cluded various indicators for socio-economic and basic amenities. Under the MSDP, district-specific plans were formed which had provisions for better infrastructure for schools and secondary educa-tion, sanitation, secure housing, drinking water and power supply. It also included various schemes to empower the beneficiaries by creating income-generating activities so that they can achieve socio-economic status equal to the national average. Although, the Sachar Committee has recommended a targeted intervention approach to improve social and economic conditions of Muslim minority in selected areas but flawed implementation made it difficult to achieve the goals. Ayesha Pervez notes,“The exclusion of Muslims is evident in the planning, design and implementation of the Multi-Sectoral Development Programme as it leaves out a large number of Muslims from its schemes by concentrating only on districts which have a minority concentration. Most of the districts in these 90 MCDs have a Muslim concentration of less than 25 per cent. Thus the MSDP covers only 30 per cent of the Muslim population of India, completely ignoring Muslims in non-MCD districts. Even for the small percentage of Muslims who are covered under the MSDP programme, there have not been very positive outcomes. In fact, the community has experienced exclusion in the identification of areas for development, allocation and delivery mechanisms”.49

The study clearly points that “despite the focus on minority districts, the Muslim community was not benefiting much as officials were often under orders to avoid Muslim villages, hamlets or urban set-tlements in plans designed by them. The study also found that the programmes selected were neither located in nor benefited Muslim populations. In Mewat district of Haryana, the government pre-ferred to spend MSDP funds to upgrade the school in a neighbouring wealthier non-Muslim village. In Darbhanga, under the Sarva Shiksha Abhiyan in 2009-10, 66 new primary schools were opened ostensibly to enhance access for children from minority backgrounds. Curiously, only seven of those were in Muslim-concentrated areas. The study revealed that even when funds do go to a district with a high concentration of Muslims, the money fails to reach the community as the authorities’ deep-seated discrimination makes them divert funds to non-Muslim villages. This pattern was repeated in all the other districts the CES team visited”.50

48. Harsh Mander, “If We Walk Together” in his Forward to “Promises to Keep --Investigating Government’s Response to Sachar Committee Recommendations”, Centre for Equity Studies, New Delhi, 2011.49. Ayesha Pervez, “Persistent exclusion of Muslims in India”, Infochange News & Features, December 2011. 50. ‘Promises to Keep -- Investigating Government’s Response to Sachar Committee Recommendations’. Centre for Equity Studies, New Delhi. 2011.



Scholar Wajahat Habibullah pointed out that further discrimination on the part of the government was highlighted when, in 2010, on the basis of reports and complaints received from the 90 mi-nority-concentrated districts on ineffective implementation and the biased attitude of government officials, the central government appointed 90 national-level monitors to monitor implementation; they could find only seven Muslim monitors out of the 90. The state of Uttar Pradesh, which has the largest Muslim population in the country and the largest number of minority-concentrated districts, has only one Muslim monitor. This bias is well exposed by the Sachar Committee when it talks about discrimination and practices of exclusion in government structures, especially in security-related jobs -- defence, police and security forces -- where the percentage and number of Muslims is highly skewed.51

Sachar Committee’s findings came as a shock for the whole nation which highlighted six decades of institutional neglect and bias. Discriminatory policies have been the main cause of Muslim back-wardness in the areas of education, employment, access to social and physical infrastructure, and political representation. Thus the report dismissed the claims of “Muslim appeasement” by the right wing Hindu groups. Harsh Mander writes, “For decades, India’s largest opposition party, the BJP, had denounced what they alleged to be a ‘pseudo-secular’ policy of ‘appeasement’ of Indian Mus-lims, in pursuit of ‘vote-bank’ politics. They charged that Muslims vote en bloc, and to capture their bulk votes, they were unfairly benefited by successive governments led by the Congress Party, at the expense of the country’s majority Hindu community. The report of this committee lay to rest this long-orchestrated political untruth, by demonstrating that on most socio-economic indicators, the average condition of Muslims in India was comparable to or even worse than the country’s acknowl-edged historically most disadvantaged communities, the Scheduled Castes and Scheduled Tribes. This was evident not of favoured treatment, but cumulative and comprehensive official discrimina-tion and neglect. Therefore, the Constitution of this committee by the Prime Minister was in itself an act of political sagacity and courage. But, as we will observe, the government has displayed lack of nerve and loss of the same courage and conviction when called upon to address the development deficits in the Muslim community which were diagnosed by the Sachar Committee”.52

More recently, the authors of the Sachar Commission Report also made their grievances on the im-plementation of its recommendations public. They expressed their dissatisfaction over non-imple-mentation of the Equal Opportunity Commission (EOC) and Diversity Index recommendations. The report has recommended that the government constitute an Equal Opportunity Commission (EOC) to address the grievances of the deprived communities and also recommended develop-ment of a Diversity Index to encourage educational and workplace diversity which could be used to provide incentives to both public and private sector organisations. Justice Sachar termed the non-implementation of SCR ‘unfortunate’ while his colleague, Abusaleh Shariff, who was the member-secretary of the committee, said more bluntly, “Our report recommended mainstreaming. Now the opposite is happening, for reasons of political timidity or because isolating Muslims as a community suits them.”53

For Indian Muslims the crucial issue today is not only of equitable share and fair play but also a meaningful participation in the process of development. Without their participation the economic growth of the country has no meaning in terms of country’s national interests. The Indian economy has made remarkable progress in the last 60 years but the fruits of this economic prosperity have not

51. Wajahat Habibullah, “Social, Economic and Political Status of Muslim Indians- The Role of India’s National Commission of Minorities”, pp-10.52. Harsh Mander, opcit, Centre for Equity Studies, New Delhi. 2011.53. Seema Chishti, “Sachar panel members doubt govt will, methods,” Indian Express, 8 August 2011

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been uniformly distributed across the religious communities. One of the causes of backwardness of Indian Muslims is that they have not been able to avail the benefits of economic development and growth. Above all economic “liberalisation” and globalisation in recent years have given rise to eco-nomic inequality that has afflicted the national population as a whole.

The rapid changes in the field of economy and technology have altered the patterns at the global and domestic markets. Indian Muslims in particular are becoming more vulnerable due to these changes. It is because the Muslim population is disproportionately poor, and they are disproportionately rep-resented among the poor. Traditional Muslim occupations and economic sectors have been particu-larly hard hit by global competition from factory-made products. Traditional occupations had been the mainstay of Muslim social and economic structure. “Policies of economic liberalisation have sounded the death knell of most traditional occupations of Muslims, such as hand and power looms, silk and sericulture, garment making, leather and automobile repair etc. Home based industries like embroidery, zari and chikan work, which provided Muslim women stable but low incomes are also gasping for survival. Formal banks and private money-lenders baulk from extending credit to Mus-lims. Young Muslim men and women face discrimination in government recruitment, and private sector appointment of Muslims is even more dismaying. Similarly, the report found Muslim settle-ments systematically deprived of access to infrastructure and public services, such as power, piped water supply and sewerage”.54 The liberalisation of Indian economy and lack of government policies have not only disrupted their traditional occupations but also have deprived majority of them of their livelihood resources. Muslims are forced to be displaced from their work place and migrate to other cities even to Gulf countries to work as labourers. “Studies have shown that these communities many of which are artisans are witnessing a rapid decline in their living conditions in the face of the current wave of liberalisation and privatisation and as a consequence of urbanisation and industrialisation. Yet the state, as many Muslim organisations have argued has done almost nothing to address the community’s mounting plight”.55

As a result of the ongoing trends of globalisation and liberalisation, the economic conditions of Mus-lims are expected to worsen since only highly competitive and skilled individuals and industries are expected to survive in such an economy. Affirmative action is all the more necessary because the globalisation process that India has embraced has little to offer hundreds of millions of the country’s poor. Since a large proportion of Muslims are poor as a community they are among the worst victims of the current globalisation process. Democracy has no meaning if minorities are not secure and also do not get proper share in economic, social and political development in proportion to their population. It is therefore essential to plan and develop policies that adequately address the sources of disadvantage and resentment and have a clearer understanding of how Muslims experience their membership in Indian society, and of the actual facts of that experience.

54. Harsh Mander, opcit, Centre for Equity Studies, New Delhi. 2011.55. Yogendra Sikand, “Behind their Plight, Frontline, Dec, 15, 2006, pp-14.


chapter iV

MUSlIM MInoRITy In UTTaR PRaDESH

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The most populous state of India, Uttar Pradesh is often described as the “Hindi speaking heartland of India”. It forms a major area of the North-ern fertile plain or the Indo-Gangetic plain. Uttar Pradesh is bounded by Nepal on the North, Himachal Pradesh on the North West, Haryana on

the west, Rajasthan on the south west, Madhya Pradesh on the south and south- west and Bihar on the east. Geographically, it is the fourth largest state in India, and has a mammoth administrative apparatus to govern its seventy districts.1 Uttar Pradesh covers about nine per cent of the total area of India. It is socio-culturally and eco-nomically one of the lagging behind states of India. It lies between 23°52’ to 31°28’ North latitudes and 77°04’ to 84°38’ East longitudes. Ranking first in the country

1. Politics of India, 2011, India For You.

mUslim minoRitY in UttaR pRaDesh


in terms of population, the state is densely populated. About 80 per cent of the population lives in rural areas and more than 30 per cent of the population still lives below poverty line. The state economy is predominantly agrarian and more than 70 per cent of the work force is engaged in ag-riculture and allied activities. It covers 2, 40,928 km of area and contains 166197921 populations, wherein Muslims are 30,740,158. Muslims form the principal minority group in Uttar Pradesh. Mus-lims constitute 18.5 per cent of the state’s entire populations and they are about one-fourth of the population of Indian Muslims or 22 per cent of total population of Indian Muslims.2 With regards to the geographical distribution of Muslim population in the state, it is found that they are une-venly distributed in the entire length and breadth of the state. However, their major concentration is in 20 districts of the state. It varies from 2.97 per cent in Lalitpur to 49.14 per cent in Rampur.

Table : Indian Muslims in Uttar Pradesh

State/ Union territory

Total Population

Muuslim Population

Propor-tion of Muslim Popula-tion

Sex Ratio

Lit-eracy Rate

Female Lit-eracy Rate

Work Participa-tion Rate

India 1,028,610,328 138,188.240 13.4 936 59.1 50.1 31.3Uttar Pradesh 166,197,921 30,740,158 18.5 918 47.8 37.4 29.1

Source: The Final Report on Religion, Census of India 2001

The British administration combined the Agra and Oudh regions. The name was shortened to Unit-ed Province in 1935. In January 1950, the United Province was renamed as Uttar Pradesh.3 Uttar Pradesh constituted the historical heart of Muslim power, cultural accomplishment, and prestige. It occupies a unique place in the history of Indian Muslims. Delhi and the Ganga - Jamuna Doab of UP has been the cradle of Muslim religious, linguistic, educational, culture and political activity and has the distinction of having major all India institutions like Deoband’s Darul Uloom, Lucknow’s Nadwatul Uloom and Aligarh’s Muslim University that have attracted Muslims from all parts of the country. Muslims of Uttar Pradesh and of other parts of India have contributed tremendously in the evolution, development and transformation of society, culture and civilisation of India. At the dawn of the twentieth century, “Muslims held approximately one-fifth of the land in the province. They tended to hold particularly large amounts around former centers of Muslim power such as Jaunpur, Allahabad, and Fatehpur, Bareilly and Moradabad, Lucknow and Bara Banki”.4 Once the ruling class of Uttar Pradesh, Muslims have slipped to one of the worst performing groups in the state on most economic and social parameters. The state has been the hotbed of communal politics which led to the creation of Pakistan. A large share of the best educated professional class and well to do Muslims migrated to Pakistan which left poorer Muslim farmers and artisans isolated and often leaderless. After partition, the Muslims who became part of India were mainly artisans, weavers, leather goods manufacturers, landed gentry and nationalist Ulema. Migration of technocrats and leadership ma-terial to the new state orphaned the UP Muslims. According to Ghaus Ansari, the vast majority of Muslims remained as landless labourers or engaged in various forms of manual semi-skilled labor as artisans who, contrary to popular and governmental perception, did not lag behind others in their

2. Farasat Ali Siddiqui, Nazmul Hussain and Akram Hannan, “Literacy and work participation among Muslims in Uttar Pradesh,” Journal of Geography and Regional Planning Vol. 4(6), June 2011 pp. 305-325. 3. Manorama Year Book 1996, Malyalam Manorama Kottayam, Kerala, PP-6674. Khalidi, Omar, “Muslim in Indian Economy’, Three Essays Collective”, 1st Edition, 2006, PP- 78

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craft.5 In Uttar Pradesh in 1947, a higher proportion of Muslims than Hindus was educated. This data showing Muslims at an advantageous position has been reversed now. According to Akhtar Siddiqui, education among Muslims suffered a tremendous setback after the partition of the sub continent. With the dissolution of princely houses and feudal estates, the patronage on which numerous ma-drasas had depended evaporated.6 According to the Census report of 1911, “twenty-two percent of those earning a living from commerce were Muslims…. Muslims dominated trade in clothing, trans-port, hides, perfumes and luxury articles and played a large part in the food trade and others, though in spite of this they do not appear to have made much money”.

The historically important cities are Agra, Rampur, Bareilly, Saharanpur, Moradabad, Luckow, Faiza-bad, Aligarh, Firozabad, Allahabad, Kanpur and Varanasi. Another important feature of Uttar Pradesh is that both Hindus and Muslims earn their livelihood through trade, crafts and industries. For in-stance, Moradabad is know its brass industry, Aligarh for lock industry, Firozabad for its glass work, Varanasi for silk, Shahjanpur for its carpet units, Sambhal for its horn trade, Meerut for the scissors it manufactures and also the loom and sports items, Kanpur and Agra for leather works and so on. The competitive nature of the economy has created an antagonistic relation between different ethnic groups which is sometimes manifested in social tensions between diverse social and ethnic groups.

Source: Distribution of Muslim Population in Uttar Pradesh - in Farasat Ali Siddiqui, Nazmul Hussain* and Akram Hannan, “Literacy and work participation among Muslims in Uttar Pradesh,” Department of Geography, Aligarh Muslim University, Aligarh.

5. Ansari, Ghaus, ‘Muslim Castes in Uttar Pradesh’, Lucknow: Ethnographic and Folk Culture Society, 1960, PP-3336. Siddiqui, M. Akhtar, “Empowerment of Muslims through Education”, Institute of Objective Studies, New Delhi, 2004.



Table 1: Clusters of Districts According to Percentage of Muslim Population in Uttar Pradesh

S N Grade in Percent-age

Number of Districts

Name of the Districts

1 Below 10 18 Agra, Auraiya, Banda, Ballia, Chitrakoot, Etawah, Gorakhpur, Ghazipur, Hamirpur, Jhansi, Kanpur Dehat, Lalitpur, Mathura, Mainpuri, Mahoba, Mir-zapur, Sant Ravidas Nagar, Sonebhadra.

2 10.01- 20 32 Aligarh, Allahabad, Ambedkar Nagar, Azamgarh, Basti, Chandauli, Deoria, Etah, Farrukhabad, Fateh-pur, Faizabad, Ferozabad, Gautam Buddha Nagar, Gonda, Hathras, Hardoi, Jaunpur, Jalaun, Kannauj, Kanpur Nagar, Kaushambi, Kheri, Kushi Nagar, Maharaj Ganj, Mau, Pratapgarh, Rae Bareilly, Shah-jahanpur, Sultanpur, Sitapur, Unnao, Varanasi,

3 20.01-30

10 Baghpat, Bulandshahr, Buduan, Barabanki, Ghazia-bad, Lucknow, Pilibhit, Shrawasti, Siddharth Nagar, Santkabir Nagar

4 30.01-40 07 Bareilly, Bahraich, Balrampur, Jyotibhaphule Nagar, Muzaffar Nagar, Meerut, Saharanpur

5 40.01-50 03 Bijnore, Moradabad, Rampur.

Source: Uttar Pradesh, Census of India 2001, “Report on Religion Data”, Series 10, 2005 in Abdul Wa-heed, “Muslims of Uttar Pradesh”, CEPECAMI, Aligarh Muslim University, Aligarh

Dr. Abdul Waheed in his paper on Uttar Pradesh has categorised Muslim population into five clusters according to their percentage in each district. It is evident from the above table 1 that in cluster No.1, containing 18 districts, Muslims constitute below 10 per cent population. Most of the districts of this cluster are of southern U.P. while in another 32 districts of cluster No. 2, Muslims comprise of 10 per cent-20 per cent of the population. These districts are both of western and eastern U.P. In this way Muslims constitute not more than 20 per cent population in 50 out of the 70 districts of the state. Remaining 20 districts may be called as ‘Muslim concentration districts’. The percentage of Muslim population in these districts is more than 20 per cent (i.e. more than their percentage of the total state population). Muslims have 20 per cent-30 per cent population in half of these districts (cluster No.3) whereas they form 30 per cent-40 per cent population in 7 districts (cluster No.4). Highest percent-age (i.e. 40 per cent-50 per cent) of Muslim population is found in three districts of Rohilkhand Divi-sion of the state (cluster No.5).7 According to Farasat Ali Siddiqui “Overall the distributional pattern of the Muslim in Uttar Pradesh indicate that districts having low concentration of Muslim population are located in the southern part of the state whereas districts having more or large Muslim population are located in the northern part of the state.8

Muslim society in UP has been witnessing rapid rate of urbanisation in the last decade. Prof. Aijazud-

7. Abdul Waheed, “Muslims of Uttar Pradesh”,Centre for Promotion of Educational and Cultural Advancement of Muslims of India (CEPECAMI), Aligarh Muslim University, Aligarh, PP -228. Farasat Ali Siddiqui, Op cit June 2011 pp. 308.

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din Ahmad (1996) has calculated 28 per cent urban Muslim population based on 1991 Census while in 2001 Census their percentage in urban areas has increased to 36 per cent, a jump of 8 per cent. Of the total Muslim population (i.e. 30,740,158) of U.P.; 11,073,861 (i.e. 36.03 per cent) live in urban areas, whereas only 22,891,025 Hindus of their total population 133,979,263 (i.e. 17.08 per cent), are urban. Thus the percentage of urban Muslims of U.P. is not merely more than the percentage of urban Muslims of the country (i.e. 35.7 per cent), it is also more than double of their Hindu counter-parts of the state. Urban Muslim population of the state is not uniformly distributed. It varies from region to region and within a region from one district to another.9 The position of Muslims in the state both in terms of education and employment has also been dissatisfactory, where male literacy rate is 58 per cent and female literacy rate 41 per cent, whereas the WPR (work participation rate) 41 and 12 per cent to male and female respectively, an overwhelming majority of women working in the marginal. Muslim localities in urban as well as rural areas are considerably marginalised and discrimi-nated against in terms of government resource allocation and left out of the development process.

Census 2001, for the first time in post-independent India has provided religion-wise data about sex-ratio, literacy level and workers. Yet data available from different sample surveys conducted in differ-ent parts of the country reveal that the Muslims have been left out of the developmental process. In his paper on Muslim education, Zaidi has analysed literacy figures from Census 2001 and reached the conclusion that in most of the states and districts Muslims are educationally most backward and it varies from state to state and from district to district, excepting a few states and districts. For ex-ample Muslims are educationally most backward in Haryana, Punjab and Assam. However Muslim’s literacy is a serious concern in Uttar Pradesh.10

Condition of Muslims is worse than that of other religious communities of the state. Among six se-lected religious communities (that is, Hindu, Muslim, Christian, Sikh, Buddhist and Jain), Muslim have recorded least literacy rate, that is, 47.79 per cent. Fifty seven percentage males and 37 per cent females are literate among them. The female literacy rate is very much lower than male literacy rate across all the religious groups. In other words, Muslims are most illiterate religious community in the state of U.P.

Farasat Ali Siddiqi’s analysis of literacy data clearly shows that there is a correlation between the lev-els of literacy and the percentage of population. “Higher concentration of Muslim population is the cause of low level of Muslim literacy in a region because Muslims are suffering from higher illiteracy associated with deprived socio-economic conditions. It is because of this unique combination (of high Muslims population and low Muslims literacy rate), it can be deducted that as the concentration of Muslim population increases in the districts, the literacy rate decreases. This is one of the nega-tive capabilities for the socio-economic development of any community as emphasised in Human Development Report, 2004”.11

Literacy and employment two crucial indicators of socio economic well being are critically low in Muslim community of Uttar Pradesh. As per 2001 census, the Work Participation Rate of Uttar Pradesh also varies across religious groups. Work participation Rate (WPR) is a crucial indicator of socio economic conditions of a particular society. It provides an idea of the extent of people’s par-ticipation in economic activity or their rate of employment. In a nutshell, the more is WPR of the population, the greater would be its development. The WPR of UP is 32.48 per cent however it is

9. Abdul Waheed, Op cit, PP- 2310. Zaidi, S.M.I.A. “Status of Muslims’ Education in India: An Analysis of 2001 Census Literacy Data”, in Abdul Waheed (Ed.) Muslims of Uttar Pradesh, Centre for Promotion of Educational and Central Advancement of Muslims, Aligarh Muslim University, Aligarh Muslim University Press, Aligarh, 2007. 11. Farasat Ali Siddiqui, Op cit June 2011 PP. 312.



46.80 per cent for male and 16.54 per cent for female. Among six major religious communities (that is, Hindu, Muslim, Christian, Sikh, Buddhist and Jain), Muslim have recorded 29.15 per cent WPR comprising 44.56 per cent male and 12.36 per cent for female. The figures show that among Muslim, the WPR is second lowest among the religious groups further the female WPR is also lower among them.12 Thirty seven percentage Muslims of U.P live in urban areas while 63 per cent dwell in villages.

In UP where male Muslims are dominant in self employment works, contribute more than 60 per cent whereas not more than 5 per cent are involved in regular salaried jobs. Situation is not good in that matter for Muslim workers in rural areas of UP. On the other side participation of female work-ers is even more than male in self employed works as they are engaged about 88 per cent in this area. Unemployment rate among male and female Muslim workers is 5.38 per cent and 0.63 per cent re-spectively in rural areas of UP. In urban sector male are more unemployed than the female workers as unemployment rate among male is 4.67 per cent, whereas for female it is 3.39 per cent.13 In addition, in the 60 years since Independence, Muslims as a community have failed to achieve socioeconomic progress. The economic marginalisation of Muslims in Uttar Pradesh has had direct bearing on the educational downfall, which, in turn, has marginalised Muslims in terms of qualification for govern-ment jobs.

ALIGARH, MEERUT, VAraNASI AND MOraDABAD

After giving the characteristic features of Muslim minority in Uttar Pradesh, a profile of micro Mus-lim community in the four districts is presented here:

Aligarh

Aligarh, one of the seventy districts of Uttar Pradesh is a historical city. It is situated in the western region of the state. It occupies special place in Indian history and politics of not only in post-Inde-pendence era but also during the national freedom movement during per Independence period. Ali-garh city, district headquarter is famous the world over for its lock industry and Muslim University. Aligarh has been a centre of education since pre-independence days. Mohamadan Anglo-oriental College, which was formed by Sir Syed Ahmed Khan later developed into Aligarh Muslim University, one of the central universities of India in 1920. It has played an important role in Muslim politics from the days its emergence. Even today it is not without its national importance. The decisions taken from the platform of the university’s student union, filter down the Muslim population. The university is, thus, the intellectual nerve centre of Muslims of India.

The boundary of Aligarh is adjoining with Bulundsheher in the north, Mathura in the west and south and Etha in the east. North West boundary of Aligarh has the river Yamuna, which separates it from Haryana state, similarly rive Ganga separates Aligarh from district Badaun on the north eastern side. According to 2001 census; the population of the city is 2,992,286. In Aligarh district 29 per cent people live in urban areas whereas 71 per cent are rural. Muslims population is 531956 and they constitute nearly 18 per cent population of the district. They are highly urbanised as their 62 per cent population live in urban areas and 38 per cent is rural. Muslims constitute 38 per cent urban popula-

12. Zaidi, S.M.I.A. Op Cit, 2007, PP- 313.13. Sajida Anjum, “Employmet and unemployment situation of Muslims: A State level Analysis during 1993-2010”, unpublished dissertation, Centre for Regional Development, School of Social Sciences, Jawaharlal Nehru Univerity, New Delhi, 2012, PP- 68.

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tion of the district while they have the share of only 10 per cent in the rural population of the district (Census, 2001b:22). The district is divided into five tehsils for administrative purposes. Aligarh is a city which has large and small scale cottage industries. This has made the middle class of the district affluent and politically conscious. The vegetable oil factory, lock industry and brass molding works are some of the manufacturing specialties of the city. Lock making is a common economic endeavour for both the Hindus and the Muslims here. The lock industry of Aligarh has potential import market area. The brass work also engages members of both the communities. Most of those engaged in craftsmanship of brass are Muslims.

The population of Aligarh is clustered on communal lines and Hindu and Muslim localities or mohal-las are clearly identifiable as exclusive clusters. Aligarh city may be divided into two segments, the dividing line being the rail road which passes through the centre of the city. On the one side of the railway track lies the old habitation area and on the other, the new colonies. The old segment of the city is the centre of the trade, main market and it is the heart of the city. It is the place where the lock and brass manufacturing units are located and then sales take place. Though there are Hindu colonies also in this part. This segment is riot prone. On the other side of the railway line lies the new habita-tion areas. Civil lines, government offices and buildings are part of this segment. The two divisions have structural variances, which have their bearing on the communal relationship between Hindus and the Muslims in the city.

The Hindu populations in Aligarh are engaged in trade, commerce and industry in various capacities. A good number are engaged in business too and marketing is largely covered by them. The Hindu community is relatively well off in comparison to the Muslim population in the district. Muslims are mostly involved in various kinds of occupations such as labourers in small-scale units, workers in lock industry, artisans and employees in Aligarh Muslim University. The sizeable numbers of people from the Muslim community are also engaged in lock industry as manufacturers. Aligarh provides a com-mon platform to both the communities for close competition in lock industries. Lock industry and brass work are considered immensely profitable ventures and Aligarh has created its own place in the whole of the country with its production capacity and marketing. The Hindus and Muslims are both engaged in the lock industry which is characterised by:

1: a majority of Muslims work where the marketing is in the hands of Hindus in and outside Aligarh;

2: the number of Hindu labourers are now increasing in the city as villagers from nearby places have also started seeking employment in lock manufacturing; and

3: there are leading Hindu manufacturers in competition with Muslim manufacturers. It pro-vides an open rivalry and clash of interests.14

AMU is considered as the centre of social and political thinking and its student politics essentially reflect the political life of the city. The Hindu population of the city looks at its activities as divisive to their interests and a constant source of communal tension. Likewise Muslim population also shares the same such suspicion about Hindus. In general, both the Hindu and Muslim communities remain highly prejudiced against each other. This perception further feeds the communal organisations to intensify their brand of politics.

14. Singh V.V, “Communal Violence”, Rawat Publications, Jaipur & New Delhi, 1993.



Meerut

Meerut, which is situated at a distance of about 70 kilo meters from Indian capital New Delhi is one of the most important cities in western Uttar Pradesh. Located at 28.980 N 77.70 E, the district of Meerut is named after its headquarter city. Situated in the western region of Uttar Pradesh and in the fertile land between Ganga and Yamuna, the district has total area of 2590 Sq.km. It is bounded on the north by district Muzaffarnagar, south by Ghaziabad, east by Bijnore and Moradabad and west by Baghpat. Meerut city lies south of the cantonment, and owes its modern importance to its selection by the British government as the site of a great military station. The city has its own historical, cul-tural and administrative importance since time immemorial. The first rumblings of the 1857 Revolt known as first war of Indian Independence began here. The Hindu and Muslim soldiers resolved to fight together against the British rulers and marched towards Delhi.15 The area is agriculturally and industrially quite well advanced. Meerut’s advantageous geographical location and availability of abundant productive rich fertile land form the basis of a strong economical growth for the city. Meerut has been a centre for trade and industry- Daurala Sugar Mills, Surjkunj cricket industry etc., have been the major producers of goods sold within and outside the nation. Traditionally the core economic activities in Meerut had primarily been trade and commerce, manufacturing of musical instruments, sports equipment, scissors, publication and printing, engineering equipments and ma-chine tools and gold jewellery.

Administratively Meerut district is divided into three tehsils i.e. Meerut, Mawana and Sardhana and twelve development Blocks. With 29,97,361 population, the district of Meerut constitutes 1.8 per cent population but only 1.07 per cent area of the state as per Census of India 2001. Of the total dis-trict population 1,601,578 are males while remaining i.e. 1,395,783 are females. Hence the sex-ratio (females per 1000 males) of the district is 872. Hindus and Muslims constitute 99 per cent popula-tion of both the district and the state. Muslim population is 975715 which is 32.6 per cent of the total population of the district. Muslims of the district are highly urbanised, as their percentage of urban population is twenty percentage point more than their average percentage of urban population in the state. Average literacy rate of district Meerut is 64.80 per cent, about 9 percentage points more than the state average (56.26 per cent) but marginally less than national average (65.38 per cent).16 Business and commerce activities are the primary employment generator in the city which accounts for over 21.06 per cent of the total employment in the city, while other services account for nearly 30 per cent of the total workforce in the city. Of the total workforce employed in industries nearly 94 per cent is employed in the small and cottage industry.

Meerut is known for many of its artisanal industries such as handloom, beads, embroidery, carpet weaving, scissors factories. These are small-scale industries, which provide job opportunities to large number of people in the district. Hindus as well as Muslims own the factories, the former dominating the class of employers and the later dominating the labour force. Both communities have shared the economic prosperity that occurred over the 1970, though Hindus have generally prospered at a faster rate than Muslims. The rich Hindus own cloth printing factories, sports, publication houses, and shops. Meerut became a very important centre of handloom industry in the past two decades. Over a period of time, power looms have replaced the handlooms. The number of such power looms in Meerut is approximately 32,000. According to some estimates, 90 per cent of these power looms are owned by Muslims Ansaris and only 10 per cent by Hindus. The two largest Muslim people groups in Meerut city are the Ansari and the Shaikh. The Ansaris among Muslims have acquired considerable economic clout on the basis of the power loom factories, which are operated mainly as a domestic

15. Asghar Ali Engineer, “Communal Riots in Post Independent India”, Hyderabad, Shangham, 1985, PP-27116. Baseline Survey of Minority concentration District Meerut, UP - A Study Conducted by CEPECAMI, AMU Aligarh.

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industry. The power looms are concentrated in mohallas like Hashimpur, Islamabad and other neigh-boring areas. Owners of these power looms get the supplies of yarn from Hindu traders and after weaving, the products are also sold to Hindu traders. Some of these traders have also set up ancillary factories. This economic scenario had created rivalry between the business classes of the two com-munities. Muslims felt that all profitable operations were in the hands of Hindus and that they were trying to infiltrate the weaving operations too. This rivalry has been portrayed as the chief cause of communal riots in Meerut by a number of media persons. Since 1947 Meerut has suffered occasion-ally at the hands of those who mobilise the cultural practices and symbols for their own political and economic gains. Meerut has witnessed communal riots of varying magnitude in the post-Independ-ence era. The more important ones among these are the riots of 1961, 1968, 1982, 1987 and 1990. During the course of riots there occurred a complete breakdown of mixed community living in the city of Meerut. Muslims have been completely pushed out of the areas of Hindu majority and vice-versa. Despite the segregation the two dominant groups neither left the city nor migrated.

Moradabad

Moradabad is a historical city of Uttar Pradesh which was known as ‘Lakhnaur’ in ancient days. In the year 1962, the city was renamed as Moradabad. According to the district gazetteers, Moradabad lies between Lat. 28o20’ and 29o16’N and Long. 78o4’ and 79o0’ E. “The length of the district from North to South is 64.37 kms. on the West, 80.46 kms. in the middle and 90.12 km. on the East. Its breadth in the middle from West to East is 83.68 kms. Moradabad is situated on the banks of rive Ram-Ganga. The district Moradabad is bounded by on the North by Bijnore and Nainital districts on the East by Rampur district and on the South by Badaun. The Ganga forms its natural boundary on the West and separates it from the district Bulandshahr and Meerut.”17 The city is stretched out of 116.5 sq. kilometers. There are six Tehsils in the district and it accounts for the 1.58 per cent of the area of the State.

According to Census 2001, the population in Moradabad is 3810983, of the total district population, 2032302 are found to be the male, while remaining 1778681 females. Muslim population is 1735381 in which 919030 are male while 816351 are female. Muslims constitute almost 45 per cent of the population of the district. Thus, in the district about half of the population is Muslim who are found engaged in various economic activities. Among the Muslim population, 29.74 per cent are found as students, 22.95 per cent are found engaged in domestic work, 13.52 per cent as self-employed, and to 11.14 per cent are found engaged as casual labour18.

The district has small cottage and large scale industries including the industries of paper, cotton yarn, distillery, sugar mills, flour mill, glass products, vegetable oil, chemicals and the famous brass in-dustry. Moradabad city is the trade centre for brass. This industry has assumed the status of cottage industry. In the old Moradabad city brass works are carried out in almost all the mahallas. Each mo-halla is a site of brass industrial works. Brass is the life and soul of Moradabad. The brass industry engages all the groups irrespective of their religion. The industry represents economic and industrial interdependence in this place where both the communities meet on a common platform. Ironically, this meeting creates no adverse relationship between Hindu manufacturers and the Muslim workers.

17. Uttar Pradesh District Gazetteers, Moradabad, Government of Uttar Pradesh, Department of District Gazetteers, U.P., Lucknow, p.1. 18. R.S. Tiwari, “Base Line Survey in the Minority Concentrated District of Uttar Pradesh (Report of District Moradabad)”, Giri Institute of Development Studies, Lucknow.



The population of Moradabad is distributed over different localities in terms of Hindu and Muslim habitation areas. Tough Moradabad has developed modern facilities for the brass manufacturers and traders in the newly created area called ‘Pital Nagri’ but it has been found that the industrial entre-preneurs are not willing to shift their operations to this area. The economy of the city is based on brass works. The growth and modernisation of the brass industry has formed a new trade balance over a period of time. Muslims are majorly engaged as labour force in the brass manufacturing sector whereas brass manufacturing is controlled by the Hindu community. Though Hindu and Muslim habitations exist side by side, yet people carry a dormant mistrust and apprehensiveness for each other. Incidents of rioting frequently have been primarily responsible for the creation of such mis-trust and animosity between Hind and Muslim communities because both the communities get ad-versely affected by such occurrences. Moradabad has recorded the maximum number of communal disturbances in its history.

Small scale cottage industries have a predominant role in the economic structure of Moradabad. Majority of Muslim artisans and petty workers are engaged in this sector and they remain largely unorganised due to the nature and growth of industrial infrastructure. Muslim artisans and workers are employed with low wages whereas highly paid managerial jobs are controlled by the Hindus. This work relationship is viewed by the Muslims as exploitative and disadvantageous for their socio economic status. However it must be observed that the UP government has intervened to safeguard the interests of the workers and artisans employed in the manufacturing units of brassware through the UP Brassware Corporation. But the achievement of the corporation in terms of improving the quality of life of the workers has been negligible.19

Varanasi

Varanasi or Benaras, (also known as Kashi) is a major religious, cultural and educational centre of India. It is one of the oldest living cities in the world. Varanasi is located in the middle Ganga valley of North India, in the eastern plain region of the state of Uttar Pradesh, along the left crescent-shaped bank of the Ganga river. Varanasi is named after the two tributaries of Ganga that flank the city, the Varana to the North and the Asi to the South. Varanasi`s Prominence in Hindu mythology is virtu-ally unrevealed. Mark Twain, the English author who was enthralled by the legend and sanctity of Benaras, once wrote: “Benaras is older than history, older than tradition, older even than legend and looks twice as old as all of them put together”.20

The Varanasi City is the district headquarters of the Varanasi District and the major part of the urban area. It lies between the parallels of 24o43’ and 25o35’N latitude and 82o11’ and 83o34’E longi-tude. Varanasi has the districts of Jaunpur in the north, Ghazipur in the northeast, Chandauli in the east, Mirzapur in the south and Sant Ravidasnagar in the west. The city is called Kashi in almost all Hindu scriptural references. In mythological terms, Kashi is associated with the deity Shiva, and within the Hindu religious tradition, it is the place where people come to die, since dying at this site ensures spiritual salvation. It was the capital of the kingdom of Kashi in the Buddha’s time (6th cen-tury BCE), who delivered his first post-enlightenment sermon at nearby Sarnath, just 10 kilometers away from Varanasi. Being a center of religious, educational, cultural and artistic activities, Kashi drew many learned men from around the world; the celebrated Chinese traveler Hsüan Tsang, is one of them, who visited India around AD 635. Due to its historical legacy, Varanasi attracts both the tourists and pilgrims in lakhs each year. During the 18th century Varanasi became an independent

19. Singh V.V, Op cit New Delhi, 1993.20. “Brief Industrial Profile of Varanasi”, Br. MSME- Development Institute, Varanasi, PP-2.

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kingdom, with Ramnagar as its capital and under subsequent British rule, it remained a commercial and religious centre. The British declared it a new Indian state in 1910. After India’s Independence in 1947, Varanasi became part of the state of Uttar Pradesh. The ghats of Varanasi are central to its social and religious life. Most of the ghats have been constructed as a series of stone terraces and stairs run-ning down into the Ganges, and several are important places of pilgrimage.

According to census 2001 the total population of Varanasi is 3138671 out of which 497516 persons belong to Muslim community. Muslim population accounts for 15.9 per cent of the total population of Varanasi. Muslims have 55.44 per cent literacy rate in the district. Muslims have a work force in the district which is 157804 persons out which 122020 persons are engaged in various works. Muslims have 64.75 per cent people who are involved in house hold industries21.

Because of the never-ending flow of pilgrims who brought wealth with them, Banaras has always been a prosperous city and a big trading centre. According to Vasanthi Raman, “Banaras has also been known as the centre of commerce; wealth and craft/artisanal industry for some centuries now. During the latter part of 18th century, Banaras was considered the subcontinent’s inland commercial capital…..receiving immigrants merchant capital from the whole of north India an standing astride the growing trade route from Bengal to the Maratha territories.”22 It has been famous for handicrafts and artistic goods, carpet industries, handloom weaving fabrics and several important large and me-dium scale unit like diesel locomotives, glass work, chemical and fertilizers, industrial gases etc. The major trade in Varanasi is silk and saris. Varanasi abounds in the art of silk weaving, an exotic work of art which manifests itself in precious Banarasi Silk Sarees and Silk brocades which are famous across the world today. Ethnic Banarasi brocades are the finest example of superb craftsmanship of artisans. Rich in colours and patterns interwoven with gold/silver threads are the living embodiment of the skills of craftsmen, developed, nurtured and perfected over the centuries. These are made by Muslim weavers and artisans, and traded by Hindu traders. Though, some sections of Hindu weavers are also involved in brocade production.

Muslims have resided in the city since at least the 13th century. Madhuri Desai has described Banaras as a “city of negotiations”, where the prevailing religious politics in north India during the 18th and early 19th century gave birth to the present city with its mansions, temples , ghats and other struc-tures. Earlier in the 17th and early 18th century, Banaras had a distinct composite culture mixed of Indo Islamic character which according to her used later by the British colonial rulers for their own purposes. Hindus Muslim tensions were fabricated with the presentation of controversial sites such as the Vishveshvara temple and the Gyanvapi mosque as specifically Hindu sacred structures. In that contemporary cultural context Muslims of Banaras were viewed as negotiating religious differences within the larger public sphere.23

Muslims have a substantial population in Varanasi. They are one quarters of the city’s population. Muslim community has always played a very important role in social, cultural and economic struc-ture of Varanasi. The overwhelming majority of Muslims belong to Momin Ansaris group who are mainly involved in weaving and Sari trade. The Muslim weavers or julahas at Banaras are mainly known as ‘Karigars’ which also stands for artist. The Muslims have been traditionally involved in this work and excelled in this. They were called Chira-i-Baaf which meant supreme cloth weavers. In general, all communities are involved but share of Muslims (Ansaris) has been prominently high. Silk

21. Uttar Pradesh, Census of India 2001, “Report on Religion Data”, Series 10, 2005.22. Vasanthi Raman, “The warp and the Weft; Community and Gender Identity Among Banaras Weavers”, Routledge, Delhi, 2010, PP- 32-33. 23. Madhuri Desai in “Culture and Power in Banaras: Community, Performance, and Environment, 1800-1980”, edited by Sandria B. Freitag, University of California Press, London, 1989.



weavers constitute 69.2 per cent of the population of weavers in the state24. Varanasi alone has more than half a million weavers involved in Silk/Handloom Industry. The Handloom/ silk industry is a source of livelihood of about 10 lakh people in the region. From 1970s onwards the Momin Ansaris gradually acquired a firm hold in this business and they began to emerge as a principal threat to the Hindu business groups who were almost having a domination over sari business and trade. At the same time growing Muslim prosperity particularly of Momin Ansaris in Sari business also gave rise to communal rivalry which is considered essentially a reaction by the Hindu business groups. In the last two or three decades Varanasi has witnessed many cases of communal riots in which Muslim community has been targeted.

From 1980s onwards decline in sari production has posed a new challenge which had threatened the identity of the sari weaving industry. The crisis has led to tragic consequences for the weavers associ-ated with it. Saree weaving industry in Banaras has deteriorated and the pity weavers have to strive hard to make their both ends meet. Large scale displacement of weavers and decline in handloom cloth production has left the weavers on the edge of starvation. The young generation of weavers has been forced to shift to other occupations or migrate to other cities to pursue other livelihood options such as pulling rickshaws, peeling and selling green chanas, making incense sticks, cleaning garbage heaps. Globalisation, inflow of Chinese fabrics and technical advancement are some of the reasons for the decline. However, over time cheap quality machine made imitations of the traditional silk saree flooded the markets and the demand for high valued intricately patterned heavy silk sari, for which Varanasi was famous, declined. The traditional silk industries are confronting problems and challenges thrown by liberalisation of trade. On top of that China in recent years has almost monopo-lised the silk fabrics export market. The price at which China exports silk fabrics cannot even cover the cost of raw silk. Varanasi weavers are suffering in the globalised economy, where the demand for their exquisite product is shrinking in the market faced by the onslaught of cheap imported alterna-tives. Government’s insensitivity has worsened the situation pushing the weavers to brink of survival to face hunger, joblessness, gross underemployment, impoverished living conditions, chronic ail-ment and exploitation.

UttAR PraDESH: COMMUNAL VIOLENCE AND MUSLIM MINORITy

Uttar Pradesh has been a communally sensitive state where Muslims are principle religious minority group. After the partition of the sub continent states on the northern part of India had to undergo the most severe trauma where millions of persons were uprooted and displaced on both sides of the new political borders, which left a trail of communal hatred and bitterness. Hindu Muslim conflict ac-counts for the largest number of such riots in the Uttar Pradesh. Muslims in UP have been the worst victims of bias, discrimination, prejudice, hate and communalism. The historical antecedents have converted UP into an area of inter religious tension over the centuries and placed it in the forefront of communal politics.25 In the large majority of post-Partition communal riots, the Muslim minority was victimised and targeted. In 1961, the first post-Partition communal riot erupted in Ranchi, Bihar and took its heavy toll of life and property; even official statistics show the minorities to be the major victims, riot after riot. UP has been comparatively more vulnerable to communal flare-ups. More than a dozen communal riots occur in a year in different parts of the state besides continuous tension in some places. The Statistics given below clearly indicate that UP has been chronically afflicted with

24. Pathak, S., Sambhulingappa, Nagabhushanaiah, Y.N. and Nadigar G.S., Varanasi silk industry - A survey, 31(12), 1993, PP- 6-10. 25. Gupta, Raghuraj, “Communalism in Uttar Pradesh (1947- 1984 in Ashgar Ali Engineer & Moin Shakir, Eds, “Communalism in India,” Ajanta, New Delhi, 1985, PP-88.

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the scourge of communal dissensions and riots. There has been a three-fold increase in the last three decades in the number of communal parties or groups in the state and the spate of communal inci-dents remain unprecedented. According to Professor Zoya Hasan, “the incidence of communal riots has increased over the last two decades with a six fold increase being registered between 1954 and 1985. A spate of communal rioting took place in Uttar Pradesh from 1981 to 1987, with a significant spread to rural areas. Nearly twenty-six conflagrations took place between 1986 to June 1987. More than 200 persons mostly Muslims were killed and thousand injured. Damage to property was to the tune of fifteen million rupees.”26

Number of Communal Riots in UP and Persons killed in 1980 - 1990

year No. of Communal Incidents Persons Killed

1980 91 191

1981 119 11

1982 77 40

1983 104 15

1984 77 6

1985 27 11

1986 55 53

1987 - 103

1988 - 22

1989 - 24

1990 - 179

Source: Data Compiled from Press Clippings from 1980 to 1990 in Seema Kakaran, unpublished disserta-tion on “Police and Social Violence: Communal riots in UP (1981 – 1990)”, CPS/SSS/ Jawaharlal Nehru University, New Delhi - 1993.

The interests of Muslim artisans have been hit hard with the advancement of technology and mod-ernisation. With the introduction of steel utensils there was a decline in the use of brass utensils. Muslim artisans were earlier manufacturing brass utensils for a variety of domestic use. Steel indus-try was largely in the control of Hindu traders. Muslims could neither successfully explore the new market avenues outside the country nor they could bring any kind of change in the practice of brass manufacturing. On the other hand Hindu traders and manufacturers gradually started exploring the non-Muslim European markets. Thus, it can be concluded that in the last 2 or 3 decades economic set-back faced by the Muslim community in general and Muslim entrepreneurs in particular in Mo-radabad have contributed in further polarisation of Hindu Muslim relations.

Category of Blocks Number of Incidences of Riots

Very High + 265

High 199 to 265

26. Zoya Hasan “Communal Mobilisation and Changing Majority”, in David Ludden,” “Making India Hindu: Religion, Community and Politics of Democracy in India”, Oxford University Press, New Delhi, 1996, PP-87.



Medium 132 to 199

Low 66 to 132

Very Low 0 to 66

District Number of incidences of Riots

Aligarh 318

Moradabad 322

Meerut 360

Varanasi 268

Scholars27 have classified districts of Uttar Pradesh in five blocks namely very high, high, medium, low and very low according to numbers of incidence of riots with reference of ten year average. The classification based on numbers and per cent include above 265 incidences in very high category block (above 80 per cent), high 119 to 265 (60 per cent to 80 per cent), medium with 132 to 199 (40 per cent to 60 per cent), low with 66 to 132 (20 per cent to 40 per cent) and very low with 0 to 60 (0 per cent to 20 per cent). Districts in western UP from Saharanpur to Mathura down to Agra fall either in high block or the very high block category. According to this classification, Aligarh, Mo-radabad, Meerut and Varanasi fall into very high category as shown in table above. Although Varanasi district falls in the very high category but it is not located in the western part with high percentage of population.

Based on socio economic status of Muslim community in the state some scholars have explained that areas with high level of urbanisation and larger size of house hold sector have been crucial fac-tors with regard to communal riots. Areas with high level of urbanisation and specially districts with urbanisation level that is above the state average have been found to be more prone to rioting in-cidences. Along with this, another factor that has been used to explain communal tension in dif-ferent areas of UP is the economic rivalry between established Hindu traders and newly emerging Muslims entrepreneurial class to monopolise the household industry like lock making in Aligarh, brass band, weaving and scissors in Meerut, glassware in Firozabad, brassware in Moradabad, Zari and Silk in Varansai and leather works in Kanpur and Agra. Asghar Ali Engineer maintains that the Moradabad riots were partly occasioned by the antagonism arising from the emergence of Muslim businessmen in the brass ware trade as a result of their obtaining lucrative Middle Eastern contracts. The 1982 Meerut riots displayed a similar background of antagonism between Hindu traders and an ‘albeit’ small but prosperous Muslim middle class.28 The competitive nature of economy has created antagonistic relations between different religious groups which are often manifested in these com-munal tensions. It is quite apparent that Communal riots have solely been responsible to frustrate the efforts of middle class from the Muslim community to attain some degree of economic self suf-ficiency in the fields of small and medium scale industry sector. It can be observed that districts with very high incidence of riots have a generally larger household sector when compared to the districts with low incidence of riots which have relatively smaller house hold sector. Zoya Hasan argues, “It is noteworthy that nearly all major riots during the 1980s occurred in towns with spatial concentration of Muslims or in areas where Muslims have attained a measure of economic stability through their traditional artisan and entrepreneurial skills. This is a lesson drawn from Aligarh, Varanasi, Morada-

27. Seema Kakaran, unpublished dissertation, “Police and Social Violence: Communal Riots in UP (1981 to 1990), Centre for Political Studies, School of Social Sciences, Jawaharlal Nehru University, New Delhi, 1993.28. Asghar Ali Engineer, Op cit,1985, PP-272.

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bad and Meerut riots in 1980s.”29 Imtiaz Ahmad has advanced three more factors while establishing relations with increased Muslim prosperity to communal resurgence and intensification. First, the greater cultural and social visibility of Muslims as their new found affluence lead them out of their old localities, second, the increased political assertiveness of the new entrepreneurial class and third, the impact of land values as enterprising Muslims invested in real estate.30 General conclusion of statistical inquiry based on census reports support these assertions. According to Dr. Abdul Waheed, “Trend of urbanisation among Muslims of U.P. appears to have increased rapidly in the last decade. Prof. Aijazuddin Ahmad (1996) has calculated 28 per cent urban Muslim population based on 1991 Census while in 2001 Census their percentage in urban areas has increased to 36 per cent, a jump of 8 per cent. Of the total Muslim population (i.e. 30,740,158) of U.P.; 11,073,861 (i.e. 36.03 per cent) live in urban areas, whereas only 22,891,025 Hindus of their total population 133,979,263 (i.e. 17.08 per cent), are urban. Thus the percentage of urban Muslims of U.P. is not merely more than the percentage of urban Muslims of the country (i.e. 35.7 per cent), it is also more than double of their Hindu counterparts of the state”.31 At least 27 districts of the state have been referred as ‘heav-ily urban Muslim concentration districts’. Of these 27 districts, 17 districts have 40 per cent-60 per cent of urban Muslim population. While in 8 districts the percentage ranges between 60 per cent-80 per cent. Aligarh and Varanasi fall in the category between 60 per cent-80 per cent of urban Mus-lim concentration districts and Meerut and Moradabad fall in the category of 40 per cent to 60 per cent. Similarly the percentage of Muslim household industry workers is more than that of Hindu household industry worker in 65 districts of the state. They have significant edge over that of Hindu household industry workers in almost more than 9 districts of the state. The percentage of Muslim household industry workers is 7.97 per cent in Aligarh, 8.60 per cent in Moradabad, 8.80 per cent in Meerut and Varanasi has 64.75 per cent. In Varanasi district Muslim household industry workers no doubt have dominance over to that of Hindu household industry workers. Here the difference is very high i.e., 50.01 and above percentage points.32

The incidence of communal riots has revealed a clearly discernible pattern which has assumed a frightening shape in recent years. Scholar Asghar Ali Engineer writes, “The pattern reveals a distinctly soft approach by the state and its armed manifestation, the police, towards Hindu communal or-ganisations whose fomenting of communal venom months before the riot actually erupts, goes un-checked. Those guilty of instigating acts of violence against the minorities are then shielded so that they go unpunished. In the last 15 years or so, the police have themselves actively participated in riots by aiding the aggressors”.33 Muslim community in general expressed time and again a strong feeling that police have a partisan attitude. In UP, UP PAC has been accused of blatant misuse of power against the minority community on more than one occasion. PAC has been strongly condemned for their dubious role in the Moradabad riots of 1980, Meerut riots of 1982 and 1987. Some writers have gone to the extent of asserting that “the trend in UP often is that whenever there is a communal tension leading to minor altercations the PAC moves in, disperses the more volatile elements of the two communities, curfew is imposed and the PAC is let loose on the Muslims.”34 For instance, author Veena Das writes, the manner in which PAC managed the 1987 sectarian riots in Meerut, leads one to seriously question the notion of legitimate force”.35 In the case of 1987 riots the sympathy of the

29. Zoya Hasan, Op cit, 1996, PP-88.30. Imtiaz Ahmad, “Political Economy of communalism in Contemporary India,” Economic and Political Weekly, Vol: 19 (23), 1984, PP- 903-906.31. Abdul Waheed, Op cit, PP- 23.32. Uttar Pradesh, Census of India 2001, “Report on Religion Data”, Series 10, 2005.33. Asghar Ali Engineer,“ Communal Riots in Post-Independence India”, Hyderabad, 1991, PP170.34. Aslam M; in Jim Masselos, Ed,“India Creating a Modern Nation”, Sterling, New Delhi, 1990, PP-148.35. Veena Das, “Mirrors of Violence: Communities, Riots and Survivors in South Asia”, New Delhi, 1990, PP-23



police appeared to be with the members of the majority community because out of the people killed in Maliyana and Hashimpura villages in the police encounter maximum were Muslims. The PAC seems to have unleashed unprecedented brutalities upon innocent Muslims in the guise of control-ling riots.36 The criticism against UP police has assumed such serious proportions that some Muslim leaders have even demanded the disbandment of the PAC and the creation of a new impartial force with adequate representation of various communities.

The decade after 1980s saw a new trend developing in the state of UP. Districts with low Muslim population about 10 to 15 per cent gradually became susceptible to communal disturbances. The new wave of communal riots in these districts can be attributed to the growth of militant Hindu revivalism undertaken by Vishwa Hindu Parishad (VHP) and Rashtriya Swayamsevek Sangh (RSS) in the state. Hindu communalism came out overtly in the 80s and 90s which has today grown into a very powerful amalgam of political and cultural organisations in India. This religious revival of Hindu communalism started with Ayodhya campaign in the mid-80s ultimately transformed the Bhartiya Janata Party (BJP) from a mere communal party into a party of government. But its more durable impact was institutionalisation and legitimisation of discourse of majoritariansim in civil society.37 Bhartiya Janata Party’s stand over the the Ramjanam Bhoomi-Babri Masjid issue has also contrib-uted towards the Hindu militancy. After the opening of the temple in Ayodhya in February 1986, the Ramjanam Bhoomi-Babri Masjid controversy has kept the communal harmony of the state in a state of constant strain. Beginning with March 1988, the spate of communal riots continued unabated till December 1990. Meerut, Aligarh, Moradabad, Varanasi and several other districts were infested dur-ing this period. The Ramjanambhoomi agitation launched a new pattern of systematic violence that has allowed communal violence to remain in politics and society as a dormant facto that may erupt under certain conditions. The Congress, though ideologically secular, has always followed quite du-bious policies and has never made serious attempt to check communal violence in states rules by it. Even on Babri Masjid-Ramjanambhumi controversy it never took clear and determined stand and even allowed it to be demolished and plunged the country into inferno of communal violence.38

The political situation in Uttar Pradesh has been quite unstable with the intermittent change of gov-ernments in the last two decades. Since 1989 the state has had about half a dozen governments run by different political parties and combinations. The decline of the Congress and the emergence of the BJP as a strong political force resulted in shifting patterns of communal riots. The emerging inter-play of backward and lower castes factors in determining the new political alignments added a new dimension to the fragile political terrain of Uttar Pradesh. Identity politics by promoting communal and caste divisions became much more profitable for the political parties in terms of delivery of votes. It is also because of a complete failure on the part of the ruling parties to solve vital economic and social problems, identity votes emerged as a viable compensatory political strategy. As Zoya Hasan has aptly described, “in sum, political development in UP during 1980s and early 1990s were the byproduct of two interrelated developments: an unlovely political struggle for the control of the state, pitting upper castes and classes against the backward and lower castes; an intensification of in-ter community conflicts, which had the potential of displacing upper castes from position of power. These structural underpinnings of social stirrings, combined with various political developments, resulted in a serious crisis of regime in the late 1980s. This crisis reshaped politics in new ways, espe-cially conducive to Hindutva mobilisation.”39

36. As reported in “Dharmyug” on 30 July 1989, PP-26.37. Neera Chandhoke, “ The Tragedy of Ayodhya”, Frontline, July 7, 2000, PP-16.38. Asghar Ali Engineer, “A Five Point Formula For Riot-Free India”, Secular Perspective February 1-15, 2013.39. Zoya Hasan, Op cit, 1996, PP-88.

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The massive communal mobilisation of the 1990s will perhaps be regarded as the watershed in the history of communal politics in the state. With the change in political equations since 1990s the pace and intensity of Hindu- Muslim communal riots has escalated. In the last two decades, UP has witnessed an alarming regularity and a sharp increase in the incidence of communal riots which even now continue to cast their shadow. It is more than shocking because the state of Uttar-Pradesh is under Samajwadi Party which claims loudly to be the sole protector of Muslim minorities in the country. Unfortunately, after March 2012 when Akhilesh Yadav took over as chief minister of the state, his government has failed to stop the communal disturbances in the state. A report of DNA newspaper says, “The communal crescendo in Uttar Pradesh is deafening. Over 100 riots — small and big — have broken out there since the Samajwadi Party (SP) took over the seat of power in March 2012”.40 According to a report released by the Ministry of Home Affairs, government of India in November last year (2012), the Uttar Pradesh with 104 incidents topped in the list of commu-nal tension and clashes in 2012, altogether leaving 34 dead and 456 injured. Whereas places like Mathura, Bareilly, Pratapgarh, Faizabad, Moradabad, Ghaziabad, Kanpur, Allahabad and state capital Lucknow witnessed major riots.

Communal Clashes in UP After Akhlesh Singh yadav Assumed Office

April 17 Firozabad In Rasulpur area in Shital Khan marg, Mir Mohammd Yusuf was attacked by SP supporters. He had voted for the BSP.

May 20 Tilhari In Tilhari village of same district, two communities Dalits and Muslims had come face to face at a wrestling match. Police booked 19, Balmikis after which the community refused to clean streets.

May 23 Bhagpat In Bhagpat, Dalits toiled a graveyeard of Pir Jalal Shah dargah. Crops were sown on graves.

May 23 Katholi In Katholi, Jansath village, clashes on using loud speaker at Sant Ravi Das mandir. Muslim filed complaint in police sta-tion.

May 24 Moradabad In Tehsil Bilari, Meena Ther village is a minority village. Ban-jrang Dal and Lok Jan Shakti party members protested at the collectorate against the construction of a mosque. They said, Muslims were harassing Hindus in the village and using loud speakers.

May 26 Deoband Dozens of armed Balmikis attacked the clinic of Dr. Moham-mad Yusuf of Mohamma Multaniyan. Doctors’ son Moham-mad Afzal’s motor cycle had knocked and injured a member of Balmilki. Both communities attacked each other. Afzal was beaten and referred to hospital.

June 1 Nizamabd, Azamgarh

In Sarai, Dalit Muslim clashes. Police tried reconciliation. But Dalits rejected. Four Muslim youth including a journalist booked under various sections. In Sarai village, Dailits had de-stroyed mango and guava crop of Muslims, that led to clashes.

40. Iftikhar Gilani, “ Riot after riot, Akhilesh’s UP takes on a communal hue”, DNA, Nov 27, 2012, New Delhi.



June 3 Muzafarnagar Muzafarnagar Thana Mansorpur, Jaroda area. Case filed against 19 Dalits for breaking wall of a graveyard. Dalits were using graveyard for drying up of cow dung etc. They had even erected a small temple. After receiving a complaint, police re-moved temple and cowdung huts. Led to clashes. Court has twice given verdict in favour of Muslims. Dalits are backed by BKU. Village has 18000 population. Out of which 10,000 Muslims. It is 100 year old graveyard.

June 4 Muzaffarna-gar

In Afzal garh village clashes between two groups. Zakirullah two women and 18 people injured. Javed s/o Babu had eloped with a Hindu girl from village.

June 4 Saharanpur Clashes between Sikhs and Muslims on demolition of Askari mosque. BSP leader Haji Moharram Ali booked under goonda act.

June 5 Meerat Meerat, Hapur road 12 people including 3 policeman injured. Rohit (22) resident of Qazipur, Lohia nagar had gone to a shop to recharge his mobile. Muslim Shopowner charged wrong number. It led to clashes.

June 5 Attrola Thana Kotwali

In Attrola Thana Kotwali village Dalia, a dead pig was thrown in a graveyard. Police arrested Naresh Chand and Mahaver, both Dalits.

June 6 Muzaffarna-gar

In Muzaffarnagar district, Qazipur graveyard issue led to clashes between Daits and Muslims. Muslim teli samaj grave-yard and a cremation grounds lie side by side. When a Dalit Bhishwashwar from Chamaran village died, his dead body was cremated in graveyard.

June 9 Pholpur, Azamgarh

In village Boni of Thana Lakmpuri Dailt Muslim clash report-ed. A minor tiff on May 30, let to clashes. Dalits looted Adil’s mobile phone shop. Police registered cases against people from both sides, but later arrested only Adil and his brother Asif, who were both victims. It led again a clash between the two communities.

June 11 Meeran pur, Kathoda

In Meeran pur, Kathoda tehsil of Kathuli district, elopement of a boy and girl led tensions between Dalits and Muslims. Rumours were thick that a guest was kidnapped from a Dalit house. And in the morning, suddenly some Dalit houses were set on fire. Police later found the guest at Bijnor.

June 12 Aligarh Sahni Gate

Aligarh Sahni gate, Sarai Bhoki Masjid’s custodian beaten by shopkeepers. New custodian Aslam Pervez had started locking mosque during non-praying hours. Shopkeepers, who used to take water form the mosque well, resented the new practice and thrashed him.

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June 12 Sikanderabad Sikanderabad, village Chandrawli. Clash of moter cyles led a riot. Chandmohan clinic ransacked. His motercyle had hit Surender moter cyle in a narrow lane.

June 12 Gorakhpur Gorakhpur, Glaria police station town Bhthat, Toula ganj Mus-lims were constructed Masjid Bilal. Dalits complained and st-oped work, saying the mosque was construed on a disputed land.

June 13 Bhmroah Vishwa Hindu Mahasangh leaders Subash Chandra Sharma, Vishnau Hari submitted a memorandum to build a wall around the Pataleshwar Shiv Mandir in Bhmroah village. Bhmraoh is 100 per cent minority village. So far Muslims in the village were looking after the ancient Shiv mandir, though a pujari re-sides there. Shiv Mandir shares road with an old tomb. Behind the mandir is a vacant land. The tension erupted after Vishwa Hindy Mahasang claimed ownership of land.

June 14 Kandeela Kandeela, Shamli Madrassa Qasim ul Ulom was gheroed by over 30 youth. They thrashed its incharge Ghulam Rabbani. Village has 70 Muslim households. A dozen students were thrown out and madrassa was locked.

June 19 Barely In Barely clashes between Yadav and Muslim erupted, after a Yadav girl appearing for B. Ed married Ikramudin. It is second marriage of girl. Two years ago, she had converted and married one Riyazudin, who died in an accident some time ago. Then she remarried another Muslim boy. Community was forcing her to re-convert to Hinduism.

June 17 Pratapgarh Major riot that drew media attention.

June 18 Lahsad In Lahsad village of Shamli Hindu girl had eloped with a Mus-lim boy. Khap Panchyat ordered boycott of Muslims.

June 21 Kosi Kalan After Kosi Kalan riots in Mathura, Mohammad Muslim and his daughter-in-law thrashed in their own home by some uni-dentified men.

June 22 Meerut Meerut Muslims marched against depiction of Holy Kaaba on faceboon in wrong way. Police arrested a shopkeeper Keshav Kaushak and his son.

June 23 Nihod Nihod, Thana wali mosque police encroached wakf land and built 50 residential flats.

June 23 Agra Muslim approachd Agra DM over depicting Tipu Sultan as bar tender by a hotel.

June 27 Badaun In Thana Qadir Chowk in Yehta Daman Nagar, Veerpal Balm-iki and his associates slaughtered a pig in the fields and near the house of Arif. After Arif protested, both sides clashed and threw stones. Addl SP Piyush Shrivastav handled situation.



June 27 Tasuli In village Tasuli in Kheta Sarai under Kahan Thana a 20 year old madrassa Ihsanul Uloom was forced to close down. On June 25, husband of village Pradhan led by hundreds raided madrassa. He summoned Muslims and told them to close ma-drassa and if they send children to madrassa, they will be boy-cotted in village

June 30 Pratapgarh Pratapgarh, Aishthan a local Muslim leader Tanveer fired at while distributing relief.

July 8 Sahibabad Just near national capital thana Sahibabad, farukhabad town in district Ghaziabad one person died and six injured in com-munal clashes. The clashed erupted after moter bikes hit each other. Situation was under control till morning of July8. But early morning, armed Tiyagi community members attacked houses of Muslim qureshi mohalla. Riyazudin, Liaqat Ali seri-ously injured.

July 13 Saharanpur Nazirpur graveyard issue in Thana Dihat Kotwali continues in-cite communal clashes. Despite SDM allowing erecting wall, stone throwing incidents. During Mawayati regime, khasra number 406 of graveyard in 1999 was handed over on lease by then Pradhan Manki Devi to Dalits Rajkumar and Chaman. It was challenged in the court. The case was being pursued by one Dr. Bilal. On July 11, SDM ruled in favour of Muslims. As they started constructing wall. Dalits stoned and forced to stop work.

Others say ,in 1986 the land was issued to Phalu a Dalit, who had undergone vasectomy. But lease has expired in 1991.

July 13 Shajanpur Kotwali halqa Mohalla Matani Sheikh Usman, the wall of Dada Mian’s tomb destroyed. North of mazar is house of lal Bahadur. Mutawali Dr. Mujeeb Khan says, Amit and Sumit sons of Lal Bahadur have destroyed the wall

July 20 Bareley Thana incharge S P Sharma saved situation after a new place of worship on railway land was coming up.

July 20 Karatpur Balmiki Samaj and Muslims clashed. Balmikis called strike and did not clean city. In Mohalla Budhupada Wasim, Munno, Shadab were intercepted by some Balmiki youth,when they were travelling in their area. Wasim got injured. Police has ar-rested a boy Ranjit.

Meerat Prekshat garh area village Khajuri

Khajuri pradan’s associates Jatin and Garu on mothercyles came to mosque and fired through pistols. Then they fired at madrassa also. A tabligi jammat was there at mosque. Muslim villagers gheroed the attackers and handed them over to police

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July 21 Pratapgarh Police registered cases against Muslims for illegal cattle smug-gling. Tahna Antun incharge Adal Singh Solanki raided Jaitipur Kathar and thrashed Muslim inhabitants. Police thrashed women. Locals say, police personnel were in inebriated condi-tion and were abusing Muslim community. Adal Singh even asked local MLA Naginder Singh to remain quite, when he had tried to intervene.

July 23 Rampur Two communities clashed

July 24 Nawabganj Nawabganj—Two dozen Muslims had taken refuge in a dar-gah. Miscreants had gheroed dargah and were stoning. A con-certed plan to evacuate Muslims to seize their properties and filed.

July 24 Himatpur of Shahabad

In Himatpur of Shahabad village, Kanwarias and Muslims clashed at the use of loudspeakers. Clash between Thakurs and Muslims. Past few days, miscreants used to play deck at high decibels at Iftar time.

July 24 Bareily Imran of Redi Tola, mosque died after rioters broke into the mosque.

July 24 Anola Stoning and fire at Sayidana. Kanwarias procession in Muslim majority area at the time of Iftar and evening prayers. Riots broke out in Shahidana, Sahamat Ganj and Gangapur. Fire near Azad Inter College.

July 24 Khatoli Tension between Muslims and Dalits due to use of loud speak-er at Iftar time in Datanput village, Chadsiniya. Both commu-nities attacked each other. News of a desecration of a murti crated tension in the area.

July 24 Bagpat Bagpat, Thana Palini, Dolcha village a madrass was razed to ground.

July 24 Faizabad Faizabad, Mirzapur village, villagers put locks on a mosque. Mosque incharge Ehtisham Khan says the role of chowki in-charge Saadat Ganj and SO Thana Cant was highly partisan.

July 2 Nawgaon Sadaat

In village Khedka, police had stoped Muslims offering prayers, after a tension. When the community assembled and started offering namaz at an ancient village mosque. Other communi-ty reported to police, which disallowed praying at the mosque, saying no prayers were being offered in the mosque for years. So they cannot allow a new practice.

Thana Bichraun

In Monda Khadar village, police stopped Muslims offer-ing namaz. Muslim community says, they had been offering prayers at the this place for over past 20 years.



July 27 Dhampur Miscreants threw a desi bomb inside Jamia Masjid on the first Friday of Ramazan, injuring several people. In the midst of Im-am’s sermon, a bomb was thrown on the roof and another hit courtyard of mosque.

July 30 Dhampur Pork thrown in a mosque in Jinwa Sarai. Imam Hafiz Hashimu-din and SP leader Javed Ansari reported that miscreants have thrown pork in Abu Hurara mosque.

Khurja In a Digambar Jain temple at old Sarafa bazar, animal flesh was found early morning, when devotees started arriving for pooja. Crowds gathered and started sloganeering. Police re-ported that atleast 50 ks animal flesh was found in the temple campus. SSP Gulab Singh saved the situation and sent the flesh for laboratory testing.

August 1 Sharanpur Tension and clashes in Muslim majority area of Rangdoon. Clashes between Jatave and Muslims Two Jatav nagar resi-dents riding on a motorcycle hit two Muslim youth, which led abuses and then clashes. Thana Qutub Sher police intervened and arrested people from both sides. Localities of both com-munities are side by side.

August 1 Shamli Noorun Nisa of Kaiserdo village was attached by three men Manoj, Babi and Bablo. They broke into her house. When two policemen attempted to rescue her, they were also thrashed. Police later raided houses of miscreants and recovered an AK-47 rifle and pistol and bullets. . The recovery of arms has cre-ated panic in the area.

August 3 Bareli In Hindu majority Biharipur locality miscreants attacked BBG mosque late night. Custodian of mosque Adnan Raza Khan said they were stoned while offering late night prayers.

August 3 Saharanpur Village Swarna under Sarsadoh police station has some 4000 population, 15 Muslims, some Dalits and majority is Gujars. A villager Gul Bahar has been making living by selling juice. Arjun and Anil took juice and refused to pay. Even beat Gul Bahar. Both communities came face to face and stoned each other.

The villager was already simmering with tension over con-structing tin shed roof of local mosque. The mosque was built after demolishing an old mosque.

August 4 Saharanpur Construction of a temple near Shah Noorji tomb on wakf land on Eidgah road opposite Islamia Inter College.

99 |

August 4 Afzalgarh In Goverdhanpur village, police locked a mosque and ma-drassa Anwarul Uloom. People were offering prayers in the mosque for over past 18 years. An portion of the mosque was used as madrassa to teach children Urdu language and basic Is-lamic teachings. Police says, local people had filed a complaint against illegal mosque and madrassa.

August 4 Gonda, Brohi Bazar

Raja sahib Mankapur Kerat Vardhan Singh along with his as-sociates and police raided and broke locks of house of a trans-porter Majid. Police arrested four persons. The provocation was a complaint against Majid that he was involved in cattle smuggling.

In presence of police the house was looted and burnt. The incident created terror, leading minority community to mi-grate from the village. Four bulls were recovered from another house, which were taken away by rioters. Police alleges that transporter was helping smugglers to transport cattle.

August 5 Bhagpat In village Pabla clashes after rumors that a cow has been slaugh-tered and buried in an undercoustruction mosque. Angry resi-dents demolished walls of under construction mosque. They also attacked another mosque in the village. SSP Dharm Veer Singh took charge…12 people nomionated in fir.

August 5 Rampur In Tehsil Sadar village Mandian Udhay Raj clashes after a wall of devasthan was demolished. The area under shahzadnagar police station. There is tension in village over past one year over construction of a minart in a mosque. Hindus didn’t want a minart in old village mosque. Just near mosque Hindus start-ed constructing a devasthan. Other group had filed objections. At 8 a.m on August 5, some miscents had demolished wall, which was under costruction, whch led to clashes.

August 7 Pratapgarh Rajesh Kewat, resident of Sanahi village in Kandhai police sta-tion area in Pratapgarh district, plies his auto taxi on Diwan-ganj-Aria Deeh road. There was a dispute on fare between him and three residents of the same village - Altaf, Shahid and Sal-man. Rajesh’s father, Bheem Kewat (65) who was working in the field nearby came up. In the violent scuffle he got hit and collapsed on the spot. In no time, hundreds of people gathered at the site but police disbursed them, seized the body and sent for post mortem. The huge mob blocked the road for three hours. They allegedly attacked a clinic and a medical store in the market area and also attacked members of the minority community who were passing by.

August 9 Bareli Around 14-kmns away from Bareli town in Bhojipora area, village Doriya Pasrawa communal clashes due to use of loud speaker, injuring 15 people.



August 12 Bareli In Panodia, Jagatpur, miscreants stoned during Ram barat pro-cession, injuring three police persons. Though procession was received by Muslims at 5 p.m near Panodia mandir as a mark of communal amity, some miscreants threw stones. Police used rubber bullets and imposed curfew.

Shahjhanpur Muslims protested at using DJ and ringing of bells near Dada-Mian dargah near Kotwali area. Police blocked their way to the dargah. In 1977, some Hindu groups had attempted to take over this mazar by declaring it a temple. But issue was settled and a temple was allowed at a distance away from the tomb. Both communities signed an agreement before city magistrate. According to which, Muslims were barred to organise qwalis at the dargah. Both communities committed to pray quietly, without using sankh, djs or loud speakers. The agreement was broken after 35 years. It was also reported that some miscre-ants were drinking liquor at the mazar and using filthy lan-guage against Muslims.

August 20 Tehsil Ni-zamabad, Sarai Mir, Azamgarh

Clash between Dalits and Muslims

Vilage Dodudpur housing 15 Muslim Nut families was at-tacked by Dalits on eve of Eid, injuring seven people and kill-ing one persons. The clash has roots in three year old land dis-pute. Court had decreed in favour of Nuts.

September 2 Saharanpur, District magistrate stopped illegal construction on graveyard in Chinhati Gada village.

September 4 Agra Dargah Kali Khan madrassa wall collapsed due to heavy rains. When Mufti Imran Qasmi, the custodian there was renovat-ing the wall, locals intervened and handed him over to police. CJM Omesh Prakash who lives nearby took lead. Mufti was released after protests.

September 4 Chandpur Basta

Another eve teasing incident leads to clashes.

September 5 Saharanpur Clashes erupted after a college expelled a Muslim student for supporting beard. In Rasulpur a private technical college ex-pelled civil engineering student Mohammad Noaman. V P Singh colleage director said except Sikhs no one allowed to observer dress code. District magistrate intervened and asked him to take back student.

September 5 Bijnor Two Muslim youth involved in eve teasing in Daranagar Ganj. The event led to clashes.

101 |

September 5 Asara In Asara village, in Tehsil Bhadot, tensions after rumors that a person has forcibly converted to Islam. Sunil Sharma’s fam-ily took refuge in a temple, alleging that his neighbours largely Muslims were forcing him to convert. Police Sharma Avnesh Sharma, however, says, after investigations, it appeared a mat-ter of money. He owed money and did not want to return.

September 8 Muradabad Sandheri Bhatwa village, tensions after police stopped con-struction of a moque. In the village, a temple construction was on, which led Muslim inhabitants to start construction of mosque on a vacant wakf land.

September 9 Deoband, Nanota town

In Deoband, Nanota town, Muslim and Thakur students at Kissan Inter college clashed.

September 11 Blundshehar In Sikaderabad, Muslim Qureshi baradari and Vaishias clashed after motercyple of a Vaish boy Rohit hit a vendor Arif.

September 11 Ghaziabad Riot erupted, police station torched in Masoori, seven people killed, after someone found torn pages of a holy book near Railway crossing. The riot could have been easily controlled, had police taken action. Those killed include Asif (17), Wahid (16), Luqman (13), Amir (17), Wasim (18) and Hayat (35). Seventh still unidentified. The incident was reported to police at 2 p.m. But they waited for disaster.

September 13 Agra In Pakisarai area of Tajgunj, clashed on collection of donation.

September 23 Deoband Pieces of flush found at the gate of Digambar Jain mandir in Mohalla Qanoon goyan.

September 25 Shamli Munawar Hasan attacked after he objected two Hindu youth teasing a Muslim girl outside local cinema hall.

September 28 Bareily In a mosque in Mohallah Meera Ki Penth, after late night prayers, a liquor bottle thrown in a mosque. The area has been witnessing small clashes over past few months.

September 30 Saharanpur Mirzapur police recovered a Hindu Bengali girl from a Muslim home. The girl Radha Rani belonged to Kalinagar Thana Labh from West Bengal.

October 1 Meerat Faridpur town two Muslim youth attacked after they were seen moving with a cow. The town belongs to BJP MLA Sangeet Sinth Soum. When residents of Bagla Bhimbada Sajid, Akhtar and Munawar were taking cow for grazing. They were attacked and handed over to police.

October 2 Meerat, Sardhna

After miscreants firing shots at BJP MLA Thaurk Sangeet Soum, a murti was found in Rihasa Eidgah. This was followed by demolition of main dome of Rar Dhana mosque. Mosque imam Shamsudin fled from the scene.Muslim failies of Rar Dhana migrating to safer areas.



October 2 Akbarpur Sadat

Riots in Yahsuma village, No causalities.

October 3 Shahjahanpur Thana Puwayan village Majidpur, villagers Chadilal, Vaidram, Madanlal and local patwari ploughed local graveyard.

October 10 Maunath Banjan

Explosion in a rag pickers shop. Police recovered 42 sacks of low intensive explosive substance from the home Kachu alias Kishan Chand from Mohamamd Niyaz Mohammad Pura. He lives in the dense Muslim locality.

October 14 Padrona, Kishi Nagar

In Tamkohi town Hindu Yuva Vahni asked donations to per-form durga puja to Haji Boot house. Shopkeeper gave some money. But they wanted more. Led exchange of hot words. Abdul Hai, owner shut shutters and locked himself inside. Stoning and riots. Police arrested six Muslim youth Musafir, Mubashir, Mudasir, Sarfaraz and Mujibullah. In 45,000 popu-lation of township, just 6 per cent Muslims mostly labourers. The market has just 6 Muslim shops.

October 15 Sambhal Yogi Aditya Nath raised communal tensions speaking against local dargah of Syed Salar Masood Ghazi

October 16 Pilibhit Just within a span of 15 days mysterious murders of 6 Muslim youth. Haji Riyazat a local resident says, though he does not see it a conspiracy, but the way police is reacting and investigat-ing, it raises questions.

October 19 Mehmooda-bad, Sitapur

In Atroli area clashed erupted after miscreants unplugged load-speaker of a mandir amidst a religious programme. 28 people injured.

October 21 Shahjahanpur Jamia Masjid Imam alleged that land mafia was threaten-ing him and attempted to encroach on masjid land. They are backed by an SP MLA.

October 22 Azamgarh In Lohra, local police confiscated cattle purchased for sacrifice. Muslims decided not to celeberate Eid and decided to offer prayers with black bands.

October 23 Kosi Kalan The town witness to riots just few months ago, witnessed again clashes, after Nuts and Muslims calshed in Rathoor Nagar.

October 23 Bijnor, Jihanabad

Desecration and demolition of mazar of Begam Shujaat Ali Khan. District SP Nitin Tiwari intervened and reconstructed the mazar.

103 |

October 24 Riots in Faizabad

4 p.m Ruduli

6 p.m Faizabad

8 p.m Bhadrsa

9 p.m Shahganj

12 p.m Tipri

At the time of riot, there was no water in two fire engines.

Five time MLA from Ayodha Laloo Singh lost last elections. He is accused of leading the riots. SP leader Natwar Goal also involved in rioting.

Chowk Rakab Ganj ot Civil Lines shops of Muslims burned down. Miscreants threw colour on Deserah procession near Shia Imamia Masjid. Police intervened and calmed situation. But tensions erupted again after processionists threw colour on a mosque in main market.

October 25 Hardoi Gopal Mau town Mohalla Hazaria, attempts to encroach land of Masjid Khairullah.

October 27 Barabanki Town Pulheria Thana Khala Muhamadpur

Two communities clashed, threw stones

October 29 Najeebabad In Rashid village alias Badi in Mirzapur no Eid prayers this year due to tensions.

October 29 Ghaziabad In posh Surya nagar colony, attack on Dilshad Khan house. On eid day, local councillor S K Maheshwari led a mob and attacked home, seized animals for sacrifice

October 29 Shahjanpur On Eid Day Muslims protested at SP MLA Rajesh Yadav at-tempts to encroach land of Jamia Masjid.

October 31 Faizabad Faizabad district magistrate says, 67 people arrested so far for instigating October 24 riot. 56 FIRs filed. 50 shops of Muslims burnt down.

October 31 Salehpur Thanaka Dholana Sahelpur Kotla, a tiff between two families led firing and clashes between two community. Mustafa had filed a complaint in police station against Ajay Kumar who had taken a loan of Rs. 35,000. Firing a clashes seriously wounded Mustafa.

October 31 Faizabad Police revered stolen murti and arrested four people. The inci-dent had led riots in Faizabad. Adityanath had charged Mus-lims for stealing murti. Police arrested Karamjit, Vijay Pandey, Subash and Jai Poojan. IG praised police party and handed over a cheque of Rs. 20,000 to each.



November 1 Sant Kabeer Nagar

Police raided Muslim locality and seized goats purchased for Eid sacrifice. They returned these goats three days after Eid was over. Muslims in protest sacrificed them in village 4th day after Eid. In three km area in the region, there are just 40 Muslim households. Hafiz Mohammad Arman said, though he knew, there was religious meaning to his slaughtering goats after Eid is over, they slaughtered them in protest against Police high-handedness.

November 7 Shamli Near Kairana town, on national highway, police stopped offer-ing prayers at Majid Ismael. The mosque was actually a small platform, where people were offering prayers over past three decades. They had now attempted to put a shed on the plat-form. Police intervened and closed the modque cum plate-form.

November 7 Padrona-Krishinagar

In Moti Pakad locality tensions over changing route of Deshera procession through a Muslim locality numbering 4,000.

November 7 Baghpat In Tehsil Bdaat, Karthal village, police demolished 12 houses build on a graveyard. Acting on complaint of Muslims against encroachment, police demolished houses of Dalits. It led a communal tension in the area.

November 8 Nizamabad-Azamgarh

Tensions in Phirsa Bazar on shifting Kartik pooja to November 9 on Friday. Shiv parvati temple poojari had fixed November 8.

November 10 Tanda Landmafia encroached on 800 year old graveyard. Over past two years, land mafia does allow burials. It was noticed that revenue department way back in 1968 has changed the char-acter of the land to farmland and made its custodian as tiller. After his death now, the land is in eye of being encroached.

November 11 Sambal Yogi Adityanath spoke against local dargah of Syed Salar Masood Ghazi

November 12 Saharanpur In Thana Qutubsher locality, a small Rangdoon bridge di-vides Jatav and Muslim localities, which includes Qureshis and Khans. Chand Khan’s house on the edge of bride always complaints that Jatav use outskirt of his house for nature’s call. When 50 year old Raj Kumar on late night at 10 p,m was reliev-ing himself, Muslims attached him.

November 17 Seohar Muslim community decides not to observe Muharram against arrest of community members on Deshara following a riot. The meeting attended by 500 Tazia groups.

November 17 Faizabad In mohallah Thataria police broke into houses of Muslim com-munity. It broke door of Aftab, vegetable vendor, who shop was gutted during October 24 riot. Locals allege, when situa-tion was returning to normal, police action has once again pro-vided a spark for fresh clash.

105 |

DISCRIMINATION OF MUSLIMS: CASE OF HUMAN RIGHTS COMMISSION

In recent years, the protection of human rights of persons in custodial institutions has emerged as vital issue of criminal justice. Since, the establishments of National Human Rights Commission and proactive role played by Supreme Court and various High Courts have highlighted the complexity of custodial crimes in India, in general, and in the state of Uttar Pradesh, in particular. Uttar Pradesh has a dubious distinction of being the state from which the largest numbers of complaints are filed with the National Human Rights Commission (NHRC). According to 2009 statistics, over 50 per cent of the complaints received by the NHRC originated from the state of UP. This is way ahead of Delhi and Gujrat, the next two states in pecking order of number complaints lodged with the NHRC. For instance, in 2009, Delhi’s annual complaints stood at 5,616 followed by Gujrat’s at 3,000, this is in sharp contrast to UP’s 55,216- a difference of nearly 50,000 complaints per year.41

The problem of police brutality is Uttar Pradesh has a wide range of causes. Organisations working within Uttar Pradesh point to a number of causes that contribute to the ongoing, systemic problem of police abuse within the state. As the South Asian Human Rights Documentation Centre notes, “The police force in Uttar Pradesh has an inordinate amount of power and discretion delegated to them by the legal system, the political climate and society in general. The internal award system, which provides monetary incentives or promotions for carrying out extrajudicial executions, also acts as catalyst. In addition, victims hail primarily from the disenfranchised, poverty-stricken, lower caste and illiterate sections of society, which generally lack access to the few legal remedies that actu-ally exist. A lack of cohesion between local organisations has rendered the existing support system incapable of combating the problem. Furthermore, systematic and endemic corruptions in the police and within the politician and judicial agencies exacerbates the problem and ensures that such crime go unpunished”.42

National Crime Record Bureau statistics for 2009 show that UP account for the highest number of police firings casualties in India. The record of Allahabad High Court show that in UP, an average of six to seven cases of police brutality, rape or extrajudicial killings came up in the court each day. Police abuse of authority is so prevalent in Uttar Pradesh that in 2001 the Allahabad High Court expressing its concern over the growing number of cases of atrocities has observed, “A large number of petitions are coming up before this court with allegations against the Police that they are behaving like bandits, thieves, and rapist a petty criminal… The police are supposed to protect the people and not to rape, black mail or loot them. It is high time that the police also start behaving in a civilised manner.”43 Though the State government set up the State Human Rights Commission (SHRC) in October 2002, however, the Commission is yet to show any signs of activity. (SAHRDC 2003).

In 1993, India passed the Protection of Human Rights Act which created the National Human Rights Commission (NHRC). As an independent government commission the NHRC is responsible to receive and investigate individual complaints of human rights violations, initiate, monitor investiga-tions and make non-binding recommendations to the government on public awareness of human rights standards. In the case of rights violations the NHRC has the power to recommend compensa-tion to the victim or prosecution of those responsible.

41. Human Rights Violation Max in UP, Delhi, 2009, The Indian Express, available at http:/www.indianexpress.com/news/human-rights-violation-max-in-up-delhi/434739/42. Uttar Pradesh – Police Brutality Unchecked, 2003, Voice of Asia Pacific Human Rights Network, available at http//www.hradc.net/sahrdc/hrfeaure/HRF82.htm.43. http://www.nisa.in/crime-in-india-2009-the mystery-of-statistics/



The National Human Rights Commission, since its establishment in 1993 upto 2005-2006 has been reporting a number of cases pertaining to violations of human rights in police custody due torture. An important observation made by National Human Rights Commission over the years is that the largest number of such complaints reported from State of Uttar Pradesh. The Commission in its re-port of 2005-2006 commented that this trend is still continued from Uttar Pradesh despite the state has established its own human rights Commission. While an attention to the victims of custodial crimes has its devastating effect on their next-of –kin or families and communities as well. This makes it even more important to understand fully the process that contributes custodial crimes in police custody with special reference to the state of Uttar Pradesh.

People’s Vigilance Committee on Human Rights (PVCHR), Varanasi has documented and re-searched on complaints of human rights violations filed at the National Human Rights Commis-sion. A comparative analysis of these cases has revealed that NHRC has adopted double standards in treating complaints filed by minority Muslims compared to majority Hindus. The study has docu-mented the cases of Muslim victims who have been discriminated and given selective treatment on their complaints thereby denying them the right to be treated equally and protected equally without discrimination before the law. The cases clearly show deep rooted social biases against vulnerable Minority groups and manifest the gap between prevailing human rights law and its implementation. The study has highlighted the facts that in the cases of complaints by Hindu victims, the NHRC has passed directions for the state government to take necessary action but in the case of Muslim victims the commission has transferred the cases to the Uttar Pradesh State Human Rights Commission on the ground that the matter relates to the concerned state. The approach of the National Human Right Commission raises a crucial legal question which is that the case of a complaint by a victim from Hin-du community is not considered falling in the jurisdiction of the concerned state while NHRC on its own is directing the concerned Senior Superintendant of Police of the concerned state or the any other state authority to take action in the matter. The similar case of police ill treatment and torture of a Muslim victim is transferred to the State Human Right Commission. The study further reveals that in such cases the State Human Right Commission hardy takes any action but instead it simply issues a circular stating that the case has been registered with the State Human Right Commission. The cases are listed in the table below:

107 |

St

St

atus

in M

uslim

Cas

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Cas

e

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ic-

tim/A

ddre

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Nat

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take

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SHRC

Utta

r Pra

desh

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he

Vict

im/A

d-dr

ess

Nat

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f C

ase

Com

plai

nt/A

ctio

n

take

n by

NH

RC

1Sh

amsu

ddin

&

9 O

ther

s (Va

ra-

nasi)

22 M

uslim

s fa

mili

es w

ere

thre

aten

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d fo

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to le

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thei

r hom

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d 11

per

sons

take

n to

pol

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d fin

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U

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Afte

r an

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p-pl

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case

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SH

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num

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(65)

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N

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take

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w

as fo

und.

Sanj

ay Y

adav

, S/

O M

ulla

r Ya

dav,

Vara

nasi

Com

mit-

ted

sui-

cide

due

to

pol

ice

tort

ure.

3827

4/24

/ 72

/201

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– N

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SSP

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p-pl

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to S

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U

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5/7/

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w

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Not

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2421

7/24

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3 Fu

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1641

3/24

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2034

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109 |

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U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

w

as fo

und

that

the

case

has

bee

n re

gis-

tere

d in

SH

RC U

ttar

Prad

esh

on 7

/2/2

012

with

case

num

ber

3117

3(15

4)/2

011-

12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

Ram

lal P

atel

- Var

anas

i

False

En-

coun

ter

(San

-to

sh)

Com

pens

atio

n an

d

cbci

d en

quiry

–

9550

/24/

72/7

-08-

DB

II

6Sh

arif

Man

sori

(Sam

bhal

, Mo-

rada

bad)

Hou

se w

as co

m-

plet

ely

rava

ged

by

the h

eavy

rain

but

ad

min

istra

tion

faile

d to

pro

vide

an

y re

lief a

nd

reha

bilit

atio

n.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

w

as fo

und

that

the

case

has

bee

n re

gis-

tere

d in

SH

RC U

ttar

Prad

esh

on 6

/2/2

012

with

case

num

ber

3102

4(21

)/20

11-1

2 an

d th

e matt

er is

still

un

der c

onsid

erat

ion.

N

o ac

tion

take

n re

port

w

as fo

und.

Ram

Vra

ksha

- Va

rana

siVi

ctim

-iz

ed b

y a n

eigh

-bo

ur

wor

king

w

ith

polic

e de

part

-m

ent b

ut

no ac

tion

take

n by

the

polic

e.

Not

ice t

o SS

P,

2934

2/24

/ 72

/201

1



7Ta

slim

(Mor

ada-

bad)

Com

mitt

ed

suic

ide a

s a re

sult

of n

o ac

tion

take

n by

pol

ice o

n co

m-

plai

nt.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

w

as fo

und

that

the

case

has

bee

n re

gis-

tere

d in

SH

RC U

ttar

Prad

esh

on 7

/2/2

012

with

case

num

ber

3121

4(21

)/20

11-1

2 an

d th

e matt

er is

still

un

der c

onsid

erat

ion.

N

o ac

tion

take

n re

port

w

as fo

und.

Mah

esha

a N

and

Bhai

- So

nbha

dra

Thre

at-

ened

by

soci

ally

po

wer

ful

peop

le

and

po-

lice n

egli-

genc

e on

the c

om-

plai

nt.

Not

ice t

o SP

,

Enqu

iry/i

nves

tiga-

tion

still

cont

inue

s.

8 Sa

zia (

Mee

rut)

Cas

e of d

owry

ha

rass

men

t was

no

t reg

ister

ed b

y th

e pol

ice.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 1

6/2/

2012

w

ith ca

se n

umbe

r 32

759(

15)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

Villa

ge S

on-

purv

a- m

iser-

able

plig

ht

of M

usah

ar

com

mun

ity in

Ba

raga

on

Neg

li-ge

nce o

n th

e par

t of

loca

l ad

min

is-tra

tion.

Not

ice t

o D

.M.,

enqu

iry is

goi

ng

on.

306

51/

24/7

2/20

11

/M -4

111 |

9 Ay

asha

/Sal

eem

(MO

rdab

ad)

Dea

th in

pol

ice

cust

ody

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

9/2/

2012

w

ith ca

se n

umbe

r 34

529(

41)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

Jara

wat

i Dev

i- Va

rana

siN

egli-

genc

e on

the p

art

of lo

cal

on th

e co

m-

plai

nt

Not

ice t

o D

IG,

enqu

iry is

goi

ng o

n

10

Latif

an (M

eeru

t)N

o ac

tion

agai

nst

the p

ower

ful

soci

al g

roup

and

no re

gist

ratio

n of

FI

R.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

w

as fo

und

that

the

case

has

bee

n re

gis-

tere

d in

SH

RC U

ttar

Prad

esh

on 2

/2/2

012

with

case

num

ber

3104

4(15

)/20

11-1

2 an

d th

e matt

er is

still

un

der c

onsid

erat

ion.

N

o ac

tion

take

n re

port

w

as fo

und.

Lalli

Dvi

and

Oth

ers –

Alla

haba

d.

No

actio

n ag

ains

t th

e cu

lprit

on

the c

om-

plai

nt.

Not

ice t

o D

IG,

1945

3/24

/4/2

011-

WC



11

Moh

amm

ad

Ash

kar (

Mor

ada-

bad)

Dea

th d

ue to

H

unge

rN

HRC

tran

sferr

ed

the c

ase t

o SH

RC

Utta

r.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

9/2/

2012

w

ith ca

se n

umbe

r 34

524(

2)/2

011-

12 an

d th

e matt

er is

still

und

er

cons

ider

atio

n. N

o ac

-tio

n ta

ken

repo

rt w

as

foun

d.

Kew

ala D

evi -

Va

rana

siPo

lice

refu

sed

to

regi

ster

th

e FIR

.

Not

ice t

o SS

P,

258/

24/7

2/20

11/

OC

12

Sham

in K

han

(Alig

arh)

Neg

ligen

ce o

n th

e par

t of p

olic

e in

case

rela

ted

to

killi

ng fo

r dow

ry.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 1

6/2/

2012

w

ith ca

se n

umbe

r 32

773(

81)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

Cho

te L

al

Mah

araj

ganj

Polic

e to

rtur

e an

d ex

-to

rtio

n.

Not

ice t

o SS

P

3954

1/24

/ 49

/201

0

/oc

113 |

13

Baby

W/O

Jain

ul

Aaf

rin (V

aran

asi)

Fo

rcib

le en

try

into

the h

ouse

an

d be

aten

by

the

pow

erfu

l gan

g, n

o ac

tion

take

n by

th

e pol

ice.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

8/2/

2012

w

ith ca

se n

umbe

r 34

359(

65)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

Trib

huw

an

Sing

h - V

ara-

nasi

Polic

e To

rtur

eN

otic

e to

SSP,

1135

2/24

/

72/2

010/

OC

/M-3

14

Idris

e Fa

isaz

( Pra

tapg

arh)

Mur

der c

ase w

as

treat

ed as

an ac

-ci

dent

case

by

the

polic

e.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

8/2/

2012

w

ith ca

se n

umbe

r 34

195(

72)/

2011

-12

an

d th

e matt

er is

still

un

der c

onsid

erat

ion.

N

o ac

tion

take

n re

port

w

as fo

und.

Prab

haak

ar

Dub

eyIm

pli-

cate

d in

a fa

lse ca

se

by th

e po

lice.

Not

ice t

o SP

3904

5/24

/72/

09-

10/O

C/M

-3



15

Aas

Moh

amm

ad/

Saki

b (M

eeru

t)

Com

pens

atio

n re

late

d ne

cess

ary

actio

n in

road

ac-

cide

nt ca

se.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

4/2/

2012

w

ith ca

se n

umbe

r 29

220(

15)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt w

as fo

und.

16Im

rana

(Mee

rut)

Polic

e pre

ssur

e fo

r a co

mpr

omise

in

the c

ase o

f m

urde

r of a

4 ye

ar

old

girl.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

4/2/

2012

w

ith ca

se n

umbe

r 29

331(

15)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

115 |

17

Inta

zar (

Mee

rut)

N

o ac

tion

by th

e po

lice i

n th

e cas

e of

phy

sical

as-

saul

t on

men

tally

re

tard

ed yo

uth.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

9/2/

2012

w

ith ca

se n

umbe

r 34

516(

15)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

18

Meh

zabe

en/

Med

ha N

agar

(V

aran

asi)

Cas

e rel

ates

to

kidn

appi

ng w

ith

the a

ssist

ance

of

Wom

en P

ro-

tect

ion

Hom

e de

spite

a co

urt

orde

r

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

w

as fo

und

that

the

case

has

bee

n re

gis-

tere

d in

SH

RC U

ttar

Prad

esh

on 4

/1/2

012

with

case

num

ber

2637

1(65

)/20

11-1

2 an

d th

e matt

er is

still

un

der c

onsid

erat

ion.

N

o ac

tion

take

n re

port

w

as fo

und.



19

Cha

nd A

nsar

i (V

aran

asi)

C

omm

itted

su

icid

e due

to

econ

omic

har

d-sh

ip an

d po

vert

y.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

w

as fo

und

that

the

case

has

bee

n re

gis-

tere

d in

SH

RC U

ttar

Prad

esh

on 4

/1/2

012

with

case

num

ber

2634

4(65

)/20

11-1

2 an

d th

e matt

er is

still

un

der c

onsid

erat

ion.

N

o ac

tion

take

n re

port

w

as fo

und.

20

Meh

ak (M

eeru

t)

Cas

e rel

ated

to a

sick

girl

stud

ent

not g

iven

leav

e fro

m sc

hool

.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

4/1/

2012

w

ith ca

se n

umbe

r 29

214(

15)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

117 |

21

Dan

ish (M

eeru

t)

Thre

aten

ed an

d be

aten

by

the

empl

oyer

for l

oan

repa

ymen

t.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

8/2/

2012

w

ith ca

se n

umbe

r 34

203(

15)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

22

Zaki

r (Si

tapu

r)

Polic

e try

ing

to

save

the c

ulpr

it ch

arge

d w

ith

attem

ptin

g to

m

oles

t an

8 ye

ar

old

girl.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

8/2/

2012

w

ith ca

se n

umbe

r 34

193(

34)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

w as

foun

d.



23

Aas

hif S

aifi

(M

eeru

t)

Cas

e rel

ates

to

beat

ing,

har

ass-

ing

and

brea

king

fin

ger o

f stu

dent

of

clas

s VI b

y th

e te

ache

r.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 2

9/2/

2012

w

ith ca

se n

umbe

r 34

554(

81)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

24

Parv

een

(Mee

rut)

C

ase r

elat

es to

at-

tem

pt o

f kid

nap-

ping

and

mol

est-

ing

a wom

an an

d re

fusa

l of l

ocal

po

lice t

o fil

e an

FIR

.

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

ttar P

rade

sh.

Afte

r an

RTI a

p-pl

icat

ion

to S

HRC

U

ttar P

rade

sh it

was

fo

und

that

the c

ase

has b

een

regi

ster

ed in

SH

RC U

ttar P

rade

sh

on 1

9/1/

2012

w

ith ca

se n

umbe

r 28

377(

15)/

2011

-12

and

the m

atter

is st

ill

unde

r con

sider

atio

n.

No

actio

n ta

ken

repo

rt

was

foun

d.

119 |

25

Mom

in (M

eeru

t)

Cas

e rel

ates

to

negl

igen

ce o

n th

e pas

t of p

olic

e de

spite

a w

ritten

co

mpl

aint

agai

nst

firin

g by

mus

cle-

men

NH

RC tr

ansfe

rred

th

e cas

e to

SHRC

U

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chapter V

ToRTURE REDUCTIon STRaTEGIES

independent people’s tribunal on police torture against muslims

in Uttar pradesh

123 |

BACKGROUND AND OBJECTIVE

Uttar Pradesh is the most populous state of India. It is the fourth largest state in terms of people living below poverty line, Uttar Pradesh constitutes more than 30 per cent of the total population of India. In recent years, the state has acquired the dubious dis-tinction of having most repressive administrative set-up which is well demonstrated by increasingly higher incidents of human rights violations. According to National Human Rights Commission’s data of 2009, over 50 per cent of the complaints of hu-man rights violations originated from Uttar Pradesh. Human rights organisations and other civil society groups working within Uttar Pradesh have shown increasing con-cerns on shocking and violent behaviour of the state agencies, especially the atrocities perpetrated by the police on the vulnerable, marginalised and unprotected sections of the society, particularly Muslim minority community.

There are mass scale violations happening in UP which include torture in custody, rape, extra-judicial killings, more often on flimsy grounds. The records of Allahabad High Court show that in UP, an average of six to seven cases of police brutality, rape or extra-judicial killings came up in the court each day. In 2001, expressing its con-cern over the growing number of cases of atrocities, the Allahabad High Court noted, “A large number of petitions are coming up before the court alleging the police are behaving like bandits, thieves, rapists and petty criminals…. The police are supposed to protect the people and not rape, blackmail or loot them…. It is high time that po-lice starts behaving in a civilised manner.” This is the situation despite the fact that the state has a legally empowered State Human Rights Commission to protect the liberty and dignity of the people. Such violent behaviour or violation of individual right to life and liberty as guaranteed under the Constitution of free India is often justified to maintain law and order in the society, security or in the guise of tackling terrorism.

Muslims constitutes 18.5 per cent of the population of Uttar Pradesh where they are the principle minority group. Muslims have not only suffered discrimination in social and economic development process historically but with the “tag of terrorism” in recent years they have also been subjected to worst forms of repression all over. The problem is exacerbated by the fact that innocent Muslims today not only fall victims of communal rioting but also suffer due to the biased attitude of the state agencies. Muslim victims are given selective treatment on their complaints and thereby denied the right to be treated equal before the law. Their rights, freedom and dignity are de-nied everyday just because they happen to belong to a particular religion.

Human rights groups have reported numerous cases of discrimination by police against Muslims within Uttar Pradesh. In recent years targeting of Muslims in Ut-tar Pradesh, by using stereotypes of Muslims as terrorists, had led to the violation of

toRtURe ReDUction stRategies


human rights on a daily basis. There are also reports that Muslim individuals are being harassed and beaten, held in custody for extended periods of time without being charged, humiliated and tortured by police in order to obtain confession and threatening of their family members. In fact, people of Muslim community pass through a physical and mental trauma regularly. Any act of terrorism brings enormous amount of stress and misery for ordinary Muslim citizens because they are the ones who become the prime suspects. It is not only the state police which targets them but even common people tend to look at Muslims with suspicion. Today a large number of Muslim youths are being trapped in bogus cases under a planned conspiracy. Several media reports expose the fake encounters or extra-judicial killings where Muslim youth were reported to be killed. Even the state treats its Mus-lim citizens vindictively. Talking to any Muslim youth in the by lanes of any city in Uttar Pradesh, one gets to know the horror tales that they have to pass through. They can be picked up by the police any time, day or night, for questioning. Being a Muslim or having a Muslim identity is or can be threaten-ing because one is likely to be dubbed as a terrorist or having links with terrorist groups and so on. This is how the state police treat anyone who has a Muslim name and is confronted by the forces. Use of abusive language and ill- treatment seems to have become a common practice on the part of the police. The social pressure is so much that today Muslim youths are compelled to adopt Hindu names. Keeping a beard, wearing a cap and lungi can invite trouble anytime.

Muslims in India face double dilemma. On the one hand they are labeled as anti-nationals who have to prove their national loyalties and at the same time they are blamed, as being appeased as a commu-nity, by the right wing Hindutva groups. They are victimised and targeted during the communal riots. The chronology of communal riots in Uttar Pradesh clearly demonstrates that such disturbances have taken place in cities and towns where Muslim middle class have attained some degree of eco-nomic self sufficiency in the field of small and medium scale industry sector. Rioting not only takes heavy toll of life and property but official data show that it is the minority Muslims who become the major victims, riot after riot. Muslim community feels that the police and security agencies have a partisan attitude towards them. In Uttar Pradesh, PAC has been accused of blatant misuse of power against the minority community. In case of any violent incident, an FIR is registered in the name of unidentified persons and then gradually the entire Muslim community is harassed and ill-treated in the name of questioning. In the course of investigation even children, elderly and physically handi-capped are not spared; all have to bear the brunt of police brutality. In recent years a new trend is visible, that is, even the lawyers who are doing legal cases on behalf of Muslims are being threatened. Crime record data shows that the percentage of Muslims in jails is much higher than their percentage in total population. Though, voices are often raised in the Indian Parliament that innocent Muslims should be freed, but the question remains that even if they are out of jails, would those innocent be able to live in the ‘outer’ world with the same dignity? Will the society accept them and permit them to live as part of its set up? These are the issues which require scrutiny in contemporary times.

The need to ensure dignity and justice to minorities in the state has motivated the human rights or-ganisations, civil society groups, legal experts, and academicians to come together to form a public platform to voice their concerns. With this objective the People’s Vigilance Committee on Human Rights, Varanasi (PVCHR) in collaboration with Human Rights Law Network, New Delhi organised an Independent People’s Tribunal on Police Torture Against Muslims in Uttar Pradesh. The event took place on April 3 and 4, 2013 at Kamesh Hut Hotel in Varanasi. The specific objective of this event was to highlight and present a systematic account and assessment of the incidences of gross human rights violations suffered by the minority Muslim community in various districts of Uttar Pradesh. It was a part of the systematic inquiry that sought to identify the participants and examine the practices, justification and rationale of illegal and coercive measures employed by the state agen-cies like police which are responsible for discrimination, torture and the violation of human rights

125 |

of Muslim community in Uttar Pradesh. It is not only the accused who are victimised and tortured but even the petitioners and complainants are not spared from cruel, inhuman and ill-treatment. The Independent People’s Tribunal was part of a democratic exercise with an objective to restore human dignity, since the government institutions had failed to deliver justice. The exercise was also aimed to bring out the different dimensions of social and psychological effects on the victims, their families and the community as a result of the practice of torturous behaviour.

Nearly 30-40 victims from different districts of Uttar Pradesh deposed before a six-member panel comprised of prominent judges, academicians, former police officials during the tribunal with neces-sary testimonies about their problems. Majority of the victims belonged to the poor section of soci-ety and suffered due to the biased attitude of police towards Muslim minority. Victims narrated their experiences of brutality suffered at the hands of state police administration. The organisation of this tribunal was an attempt to represent the voices of the unheard, the voices the state administration refuses to hear, the voices that remain stifled under the given social and political scenario in the state.

The jury was composed of the following members:

• Justice Shri Surendra Nath Bhargava, Retired Chief Justice of Sikkim High Court.

• Sri S.R.Darapuri, Inspector General of Police (Retd), Uttar Pradesh.

• Shaheen Nazar, faculty, Sharda University, UP and former Senior Editor, Arab News Jeddah, Saudi Arabia

• Jyoti Swaroop Pandey, IPS (Retd) and Police Reforms Commission, Uttarakhand.

• Shahina Rizvi, former head, Urdu Department, Mahatma Gandhi Kashi Vidyapeeth University, Varanasi.

• Irfan Ali Engineer, Director, Institute for Peace Studies & Conflict Resolution Mumbai, Ma-harashtra

• Utkarsh Sinha, Editor, Avadhnama, Lucknow, Uttar Pradesh.

toRtURe ReDUction stRategies

TESTIMonIES

Victims speak

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1. CASE OF raPE AND POLICE INACTION

Victim Details

Name Gulfasha

Age 12

Sex Female

Father’s Name Mohd. Hamid

Address H.No. 12/472, Habir Nagar, Teliyana Bajardiha, P.S – Bhelpur

District Varanasi

Incidence Rape

Date of Incidence 29th February, 2012

Place of Incidence Habir Nagar

Police Station Bhelpur

On the 29th of February 2012, Gulfasha, aged 12 years, d/o Mohd. Hamid, was returning back from her uncle Khalid’s house. On the way back she was attacked by accused Firoz and dragged into Harun’s house. Other two accused Kalam and Nasim were already present in

the house and all of them raped her one by one. She was left unconscious as the three accused fled the scene. As soon as the family members came to know about this, Mohd. Hamid, father of Gulfasha, went to Bhelpur police station to lodge an FIR and for a medical examination. The SO of Bhelpur PS told Gulfasha’s family not to lodge the FIR and promised that the accused will be arrested. Gulfasha’s family repeatedly requested for FIR but the SO asked the family to come the next day.

Next day, Gulfasha’s medical examination was conducted at the SSPG Hospital, Varanasi. Gulfasha stated that there were no tests performed at the hospital. At 11 pm, while Gulfasha and her father were on the way back from the hospital, they were taken to the Bajardiha outpost and were asked to identify the two accused. Despite repeatedly asserting and identifying the accused, the SO kept on asking an uncomfortable question in different ways. It has to be noted that there were no female police present. Meanwhile, one female constable called and mentioned that the report was negative. The SO started hurling abuses and slapped Gulfasha’s father, shouting that they have been screaming about medical examination from morning. A case was registered with number 79/11 under Sec. 376 but according to Gulfasha’s family the FIR was just an eyewash and the police joined hands with the accused and diluted the medical report and weakened the case.

Proceedings and Follow-Up Actions

The FIR and medical examination were only undertaken after many attempts made by PVCHR.

Present Status

The matter is currently sub-judice.

testimonies: Victims speak


2. CASE OF EVE-TEASING AND KIDNAPPING THREATS

Victim Details

Name Shabina

Age 16

Sex Female

Father’s Name Mohd. Zakir Hussain

Address H.NO. N-12/887, Son Varsha Takia Noorjahan, Bajardiha, Varanasi

District Varanasi

Incidence Eve-teasing and kidnapping threats

Date of Incidence 30th March, 2012

Place of Incidence Bajardiha

Police Station Bhelpur

I Mohd. Zakir Hussain, resident of H.NO. N-12/887, son of Varsha Takia Noorjahan, Bajar-diha, Varanasi. My daughter Shabina, aged 16, is a student of Sunshine School in class VIIIth. Shabina was constantly harassed and eve teased on her way to school every day by Sonu, s/o

Gabarda, resident of Amba Bajardiha. She was harassed so much that it was difficult for her to attend school. He used to chase her down the road, abuse her and even threaten her to kidnap. All this took a toll on Shabina and she stopped going to school and refused to even step out of the house.

Aggrieved with this, I approached the Bajardiha outpost and submitted an application seeking police intervention. It was totally neglected by the police. I was asked to get Sonu to police outpost and all other tactics just denied me justice. With no legal aid provided to us, the accused continued to do so more confidently.


I wrote to the SO and Police Commissioner of Varanasi with the help of PVCHR.

Present Status

There is no legal aid provided to us in the case.

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3. CASE OF raPE AND MURDER

Victim Details

Name Gulfasha

Age 14

Sex Female

Father’s Name Alimuddin

Address Mohamadpur Malokhar

District Chandoli

Incidence Rape and Murder

Date of Incidence 19th January, 2010

Place of Incidence Mohamadpur Malokhar

Police Station Mugalsarai

I Alimuddin, s/o Amanutulla, resident of village Mohamadpur Malokhar, Mugalsarai PS, district Chandoli. My daughter Gulfasha is 14 years-old and studies Arabic. She is also working as an artisan and goes to her neighbour Mumtaz s/o Kallu for the same who lives alone. Like a nor-

mal day, Gulfasha went to Mumtaz’s house on 19th January, 2010. She didn’t return back till 5 pm. So, I went to look for her at Mumtaz’s place. I found his house doors locked and proceeded towards the northern side of the house. I found the dead body of Gulfasha lying on the ground. I found that she had been raped and murdered. She had many injury marks on her body.

A case was filed in the Mugalsarai PS with number 24/10 under section 376/302/2011 of IPC. The family members of the accused and other villagers are threatening my family and putting pressure to withdraw the case. While as a victim I want justice. We are threatened and scared due to the pressure put on by these people. My family also pleads security. I am running pillar to post to get justice for my daughter who has been murdered and treated inhumanly.


After a lot of efforts an FIR could be registered in this case. Victim’s family has made return com-plaints to NHRC, DGP Lucknow and SP Chandoli.

Present Status

Matter is still sub-judice.



4. CASE OF PHySICAL ASSAULT AND AttEMPT TO MURDER

Victim Details

Name Riyajjul Haq

Age

Sex Male

Father’s Name Gulam Mohd

Address A 40/27, Amarpur Madiya, Jaitpura

District Varanasi

Incidence Physical assault and attempt to murder


Place of Incidence Amarpur Madiya

Police Station Jaitpura

Victim Riyajjul Haq s/o Late Gulam is a resident of A 40/27, Amarpur Madiya, Jaitpura, Vara-nasi. The victim’s children had a fight with Bashir’s children while they were playing. This involved other people too in a minor fight. On 29th January, 2012 a group led by Bashir,

Anulhoda s/o Late Ebrahim, Riyaz Ahmed and Salim s/o Bashir came to Riyajjul Haq’s house and started beating him continuously with iron rods. Victim was attacked on his head and was bleeding.

Thinking that Riyajjul Haq was dead, all the accused ran away from the place. When Riyajjul Haq’s brother Anwarul came to know about the incident, he came and took Riyajjul Haq to SPG hospital where Haq couldn’t be given treatment because he was not accompanied by police. Then Anwarul took him to Singh Medical Research Centre, Maldhia where the victim was also refused any treat-ment. Anwarul informed Jaitpura PS about this incident and an FIR 20/12 was registered. Riyajjul Haq was taken to hospital for basic treatment. He had suffered serious injuries and from 29th January 2012 to 3rd February 2012 was admitted in Sri Prasad Gupta Hospital.

Due to his injuries and forthcoming elections the victim submited his medical report to Jaitpura PS. When he regained the health, he went to Jaitpura PS on 20th February 2012 with all the documents and was directed to go to Sarayia outpost, where he was threatened and abused. The police didn’t register a case against the accused and just made a challan under 107/116 CrPC of both the parties. After that, the victim filed an application under 155 (2) CrPC in the court and the court ordered SO Jaitpura to investigate the matter. Even after that Sarayia outpost in-charge has been putting pressure on the victim to withdraw the case and compromise with the accused.


In this case NCR was registered and victim was medically examined. In addition, the victim filed a return complaint to DIG Varanasi and DGP Lucknow. With the help of PVCHR details regarding the case were sought through an RTI application.

Present Status

Victim has filed a case but still awaiting justice.

131 |

5. CASE OF POLICE TORTURE AND ACCUSED IN A FALSE CASE

Victim Details

Name Aslam

Age

Sex Male

Father’s Name Ramzan

Address H. No. 4/197, Haichtalla, Takia, Near Petrol Pump Golgadha

District Varanasi

Incidence Police torture and accused in a false case

Date of Incidence 9th October, 2011

Place of Incidence Jaitpura Region


The victim Aslam s/o Ramzan is a resident of H. No. 4/197, Haichtalla, Takia, near Petrol Pump Golgadha, Varanasi. He looks after Ram Lila ground with the consent of the committee. The ground is quite large and as a result land mafias are always in the hunt to

capture a part of it. The mafias namely Gopal Pandey, Pappu Pandey and Tunnu Pandey, residents of Kamoli, Chirai village, Varanasi have illegally occupied some part of the land and converted it into a bus stand to raise money illegally. Aslam had tried to stop this practice and due to this unrest was created among the accused. The accused with the connivance of Arjun Yadav, in-charge of Hanuman Phatak PS, Adhampura, registered a false case on 9th October, 2011 against Aslam. On the same night around 8:30 pm, when Aslam went to a paan shop, he was forcibly taken to the PS and was beaten up on the way by Arjun Yadav.

When Aslam’s family went to the PS to get his release, they were told by the PS in-charge that there is a warrant against Aslam as he was arrested for having a weapon and he can’t be set free. On the next day, the accused land mafias with the help of police filed a case against Aslam in Jaitpura PS under the Narcotics Act and falsely showed the possession of drugs. A challan was issued against Aslam under 190/11, Section 8/22 NTPS act.


The victim with the help of PVCHR has filed written complaints to DIG Varanasi, DGP Lucknow, SSP Varanasi, Chief Minister of UP, SHRC and NHRC.

Present Status

The matter is sub-judice and NHRC has directed SSP Varanasi to investigate the matter but so far no enquiry or action has been taken in this case.



6. CASE OF POLICE TORTURE

Victim Details

Name Azad Ahmed

Age

Sex Male

Father’s Name Alamgir

Address Jagalpur Post, Kathirao

District Varanasi

Incidence Police Torture

Date of Incidence 3rd May, 2012

Place of Incidence Jagalpur, Phulpur

Police Station Phulpur

The victim Azad Ahmed s/o Alamgir is a resident of Jagalpur post, Kathirao, Varanasi. He was trapped in a false case by the former village head Rajesh Misra and Rajesh Shukla with the connivance of Phulpur PS just because Azad was the only person from Muslim community

who was economically prosperous. The communal minded people didn’t like him. Azad was an electrician, worked in Saudi Arabia and would come to his village in vacation. On May 3, 2009, an idol was stolen from Ram Janki Temple of Behrampur village. Due to old enmity and jealousy, the ac-cused planned a conspiracy and took Azad to the temple side where around 200 people were already present. The accused told the crowd that Azad is the main culprit behind the theft and instigated the crowd to punish him. Azad was brutally beaten and abused by the crowd.

The victim pleaded innocence but he was taken to Phulpur PS in a jeep. Two more persons namely Dungar Pasi and Bhonu Sonkar were also named for the said theft. Around midnight, the Phulpur SO asked the two co-accused about Azad’s role in the incident. The two co-accused mentioned that Azad is not involved in the theft and they were forced by Rajesh Misra and Rajesh Shukla to implicate Azad otherwise their houses in the village will be burnt. The SO Phulpur assured the victim that he will not be charged if proven innocent. But from 13th May – 16th May 2009, Azad was sent to custody after a challan was registered with no 185/09 under Section 457 by violating the Supreme Court guidelines on arrest. Due to this incident a well-off person from a minority community was reduced to a prisoner and lost all his livelihood sources and socially out casted.


The victim with the help of PVCHR has filed written complaints with DIG Varanasi, DGP Lucknow, SSP Varanasi, National Minority Commission, SHRC and NHRC. In this case an RTI application has also been filed but so far there is no response.

Present Status

Azad is out on bail but he is going through mental suffering. He is very scared about his life because no action has been taken against the accused so far.

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Victim Details

Name Imran Hussain

Age

Sex Male

Father’s Name Asfak Hussain

Address S 3/216, Ultaf Bibi Hata, Ardali Bazar

District Varanasi


Date of Incidence 9th December, 2010

Place of Incidence Ultaf Bibi Hata, Ardali Bazar

Police Station Varanasi

The victim Imran Hussain s/o Asfak Hussain is a resident of S 3/216, Ultaf Bibi Hata, Ardali Bazar, Varanasi. The victim negotiated a mutual agreement related to a property dispute. Af-ter that incident, the outpost in-charge is harassing the victim by illegally demanding bribe

and threatening him to implicate in a false case. The victim had sent a written complaint letter to DIG Varanasi on 9th December 2010. After that, immediate outpost in-charge by taking advantage of his power and position filed many false cases against the victim in various police stations in Varanasi. Since in his previous complaint letters, the victim has mentioned the name and role of the outpost in-charge in view of that all the matters are suspected to be false.


The victim with the help of PVCHR has filed written complaints to DIG Varanasi, DGP Lucknow, and Principal Secretary Home department, UP on which there has been no action initiated. In this case an RTI application has also been filed but so far there is no response.

Present Status

Due to false cases the victim is still being tortured mentally and harassed economically.



8. CASE OF PHySICAL ASSAULT AND TORTURE By POLICE

Victim Details

Name Ishtiaq

Age

Sex Male

Father’s Name Jallaludin

Address Muslim Pura, Kotwa

District Varanasi

Incidence Physical Assault and Torture by Police

Date of Incidence 13th June, 2012

Place of Incidence Muslim Pura, Kotwa

Police Station Lohta

The victim Ishtiaq s/o Late Jallaludin is a resident of Muslim Pura, Kotwa, Varanasi. The vic-tim is very poor weaver. On 13th June, 2012 at noon, the victim was engaged in work and his neighbour Abdul Wakar was lighting fire which was creating smoke. It created difficulty

for Ishtiaq to continue weaving. When he resisted, he was attacked with knife by Abdul Wakar and his friends. Victim’s family including the sister and mother were abused and beaten. The victim was seriously injured.

The victim went to the Lohta PS to lodge a complaint. He was medically examined and a case no. 84/12 under section 323/504 of IPC was filed. Since then the police has been harassing the victim’s family mentally and has not arrested the accused. The victim has complained to higher officials too but no action has been taken. The powerful neighbour Abdul Wakar with the help of police is creat-ing terror for the victim’s family. The police department is keeping silent on the issue.


The victim with the help of PVCHR has filed written complaints to SSP Varanasi, DGP Lucknow, National Minority Commission, SHRC and NHRC on which there has been no action initiated so far. In this case an RTI application has also been filed but so far there is no response.

Present Status

No action has been initiated so far and no relief provided. Victim still awaits justice.

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Victim Details

Name Gulam Ghous

Age

Sex Male

Father’s Name Late Mohd. Siiddique

Address S 7/28 A, Chamrotia Mahal, Ardali Bazar

District Varanasi



Place of Incidence Chamrotia Mahal, Ardali Bazar

Police Station Cantonment

The victim Gulam Ghous has a dispute regarding his ancestral home with his neighbour Akhtar Jamal Khan and the matter is sub-judice. The said property was registered in the name of Sallauidin Khan’s wife illegally by Akhtar Jamal. In the night of 29th December 2005, four

unidentified people armed with weapons came to victim’s house to occupy. They threatened him to vacate the house. One of the accused claiming to be the driver of the DGP Varanasi zone threatened the victim to trap him in false cases and assault him in the police station. When they left, the victim through a telegram informed the SSP Varanasi on 30th December 2005 about the incident which he had been facing for the last many years. In this case, Sallauidin with the help of outpost in-charge Tehsildar Singh filed various false cases against victim’s nephews namely Wasim, Nasim and Roshan s/o Murtaza under case no. 644/11 section 147/148/ 149/307/332/336/353/504/506 of IPC and another case no. 62/12 under section 3(1) of UP Gangster Act. For the last two years, sub-inspector Tehsildar Singh is torturing victim’s family and relatives. The victim has been insulted many times with abusive language. The sub-inspector is currently posted in Baragaon PS and has been threaten-ing the victim to falsely charge him as an accused in Baragaon PS.


The victim with the help of PVCHR has filed written complaints to DIG Varanasi, DGP Lucknow, Chief Minister of UP, SHRC and NHRC but no action has been taken.

Present Status

The NHRC directed the Varanasi district administration to investigate the matter on which victim was expected to record his statement at the regional office, Cantt on 25th July, 2012. But even after waiting for many hours at the Regional office the statement was not recorded. Following that victim has sent his statement on a stamp paper.



10. CASE OF FALSE ALLEGATION AND POLICE TORTURE

Victim Details

Name Javed

Age

Sex Male

Father’s Name Ali Ahmed

Address Rajwadi

District Varanasi

Incidence False Allegation and Police Torture

Date of Incidence 19th February, 2010

Place of Incidence Rajwadi

Police Station Chaubeypur

On 19th February 2010, an accident took place near Rajwadi bus stop in which one person died. The accident infuriated the crowd, which not only obstructed the traffic but also one vehicle was set on fire. An FIR was registered in this matter in Chaubeypur PS with case

no. 45/10 under section 147/148/149/323/504/506/341/342/332/353/395/307/336/435/427 under IPC and 2/3 of Public Property Act in the name of unidentified persons. The victim was no where named and was not involved in the incident.

When the Chaubeypur police filed the interim report no.152/10 on 18th June 2010 in the court, the victim’s name was recorded in that as accused no. 1. On getting the information, the victim surren-dered before the court in Varanasi and got bail. The Chaubeypur PS under the influence of victim’s enemies named the victim as an accused in a false manner in the said incident. But the question is when the victim was not present at the place of incident and he had no relation with the incident so how can the police identify a person with name amongst the unruly crowd.


The victim with the help of PVCHR has filed written complaints to DIG Varanasi, DGP Lucknow, SSP Varanasi, CM of UP, SHRC and NHRC but no action has been taken. An RTI has also been filed on this issue.

Present Status

The victim has got bail from the court and NHRC has directed SSP Varanasi to take action in this matter but no proceedings have been initiated.

137 |

11. CASE OF DISAPPEAraNCE AND POLICE HAraSSMENT

Victim Details

Name Rehana Bano

Age

Sex Female

Husband’s Name Mohd. Shabbir

Address Kanaisarai, Harpalpur, Lohta

District Varanasi

Incidence Disappearance and Police Harassment

Date of Incidence 30th September, 2012

Place of Incidence Madanpura

Police Station Adampur

Victim Rehana Bano w/o Mohd. Shabir belongs to a very poor family. Her family works as labourers. Victim’s daughter Roshan Jahan, aged 16 years has been working as a domestic help in the house of a sari merchant Shahid Jamal H.No. D 31/331, D1A (Taj Silk Sarees)

Madanpura. Roshan Jahan and her family were never paid any salary for her work. Roshan Jahan used to clean the house and work in kitchen since her childhood and used to come during festivals as well. On 30th September, 2012, Roshan Jahan’s family came to know through a relative Mohsin that Roshan Jahan is missing from the house of sari merchant. When the family members went to the house of the sari merchant to enquire about their daughter, they were accused by the merchant that their daughter Roshan Jahan had stolen Rs. 70,000, some jewellery and a computer and fled away. In this case, Shahid Jamal never filed a complaint in the PS about the disappearance of the girl. When Roshan Jahan’s family complained to the police, they started getting threatening calls from the merchant. In this case Rehana Bano m/o Roshan Jahan suspects that sari merchant had physically and sexually abused her daughter and is also responsible for her disappearance. The whole family is disturbed due to this and lives in the state of fear due to incessant threats by the merchant.


The victim with the help of PVCHR has filed written complaints to DGP Lucknow, SSP Varanasi, CM of UP, SHRC and NHRC. An RTI has also been filed on this issue.

Present Status

After the written complaint only an FIR could be filed in this case. But instead of arresting the ac-cused police has been putting pressure on the victim to make a compromise.




Victim Details

Name Naushad Ali

Age

Sex Male

Father’s Name Khalilrur Rehman

Address Lallapura, Matakund

District Varanasi



Place of Incidence Lallapura, Matakund

Police Station Lohta

Naushad Ali s/o Khalilrur Rehman is a resident of Lallapura, Matakund, Varanasi. He has some land in Dhanipur Lohta where his family doesn’t reside. On 6th December, 2011, the boundary wall of Naushad’s land was demolished by some miscreants during the Moharram

procession. When he came to know about the incident, he unknowingly and with the provocation of some people filed a case in PS Lohta against five people namely Munnak, Parai, Raju s/o Gulzar, Babu Babban and Riyaz. A case was filed in Lohta PS against these people with case no. 53/11 under section 147/504/506/427 of IPC. Later Naushad came to know that the people accused in this case were innocent and not involved in the incident. After the incident, on 11th April, 2012, Naushad sent a mutual agreement on a stamp paper to the SO, Lohta PS. But even after the stamp paper case was not withdrawn against these people by the police.


In this matter a wrong FIR was filed and even after a mutual agreement on an official stamp paper was made, the case is not being withdrawn by police. The victim with the help of PVCHR made available a copy of this mutual agreement to SO Lohta PS and SSP Varanasi. Even after this, victim was not heard and given justice.

Present Status

The police has not taken any action and victim has not got justice due to this.

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Victim Details

Name Mohd. Tariq

Age

Sex Male

Father’s Name Mohd. Ikramulla

Address K 48/72 kutbanshahid

District Varanasi


Date of Incidence 3rd December, 2012

Place of Incidence Daliyalpur Pargana, Shibpur

Police Station Sarnath

The victim Mohd. Tariq s/o Mohd. Ikramulla is a resident of K 48/72 Kutbanshahid, Jaitpura PS, Varanasi. Victim is a lawyer by profession. He has a friend named Ratnakar Gautam who is also a lawyer and comes from a Dalit family. The victim’s friend Ratnakar Gautam bought

a land around 360 sq. ft. from a person in the village, Munnalal s/o late Khaiten resident of S 19/86A Daliyalpur regd. No. 34 and registered it on 1st February, 2011. Later on land related to Ratnakar Gautam had a dispute with Shanti Devi w/o Chedilal resident of Tulsi Nagar in which Shanti Devi filed a case in Sarnath PS no. 233/11 under section 448/504/506 of IPC. In the FIR name of the victim Mohd. Tariq was also mentioned whereas Tariq had no connection with that land. Tariq was a witness in this land deal and hence he was also implicated in the case. Later the police started harassing Tariq again and again and threatening his family members as well as using abusive language against female members of the family. Because of this harassment along with Tariq the whole family is living in a state of police fear.


The victim with the help of PVCHR filed a complaint with DIG Varanasi, District Collector Varanasi and NHRC.

Present Status

NHRC directed SSP Varanasi to take action in this case but nothing has happened so far.



14. CASE OF POLICE INACTION

Victim Details

Name Ujjair (brother of disappeared child)

Age 11 years

Sex Male

Father’s Name Late Alim

Address Rahimpur Lohta

District Varanasi

Incidence Police Inaction

Date of Incidence 8th March, 2012

Place of Incidence Madarsa Intejamia Abi Hurireh (Lalgopalganj, Allahabad)

Police Station Nawabganj, Allahabad

Ujjair s/o late Alim is a resident of Rahimpur Lohta, Varanasi. His elder brother Nabil was studying in Madarsa Intejamia Abi Hurireh (Lalgopalganj Allahabad) . On 7th March, 2012, another student of madarsa named Adil lost Rs. 600 and mentioned this incident to another

student named Shahid. Shahid caught hold of Nabil and started threatening him and on the same night Nabil Ahmed disappeared from the hostel. Next day on 8th March, 2012, he came back to the hostel in the morning and showed a mobile to his roommate saying it belonged to the policeman who had accompanied him and would take him back with him. Just after Nabil disappeared there was no information about him. The hostel authorities informed the families after three days of the incident.

The principal of the hostel informed the Nawabganj PS of Allahabad on 13th March, 2012. Victim Ujjair Ahmed, brother of Nabil also met the station officer of Nawabganj PS and gave an application to DIG Allahabad. Victim Ujjair also sent application to DGP Lucknow and SSP Allahabad to take action in the matter. In this matter, PVCHR also informed DGP Luncknow on 20th March, 2012 to look for the boy and arrest the culprits. But inspite of all these efforts police of Nawabganj PS never registered the disappearance case as a matter of kidnapping and didn’t try to arrest the culprit. But instead it joined hands with the madrasa and has been harassing the family ever since and making them run from pillar to post. The family members of the victim accused that Nawabganj PS has taken bribe from the madrasa and diluted the matter.


On behalf of the victim return complaints were sent by PVCHR to DGP Lucknow, DIG Allahabad, CM of UP, Chief Justice of Allahabad High Court, NCPCR, and Justice Amar Sharan of Allahabad High Court. An RTI application was also filed.

Present Status

After the intervention of NCPCR, an FIR has been filed in this case and the statement of victim’s brother has been recorded in the office of SO Cantt but no result has come out so far. Nobody has been investigated and no arrest has been made in this case.

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15. CASE OF SExUAL HAraSSMENT OF MINOR GIRLS AND POLICE INACTION

Victim Details

Name Gulapsa (Age – 9 years) and Hina Parveen (Age- 7 years)

Sex Female

Father’s Name Shamsul Haq

Address H.No. J 31/122, Chhohra

District Varanasi

Incidence Sexual Harassment of Minor girls and Police Inaction

Date of Incidence 4 June, 2012

Place of Incidence Habir Nagar


I Shamsul Haq, s/o Late Abdul Rashid, resident of H. No. J 31/122, Chhohra, Police Station- Jaitpura, Varanasi. On April 4, 2012, Mati-ur-rehman s/o Md. Yunus, r/o 19/40A, Jamaluddin-pur, Jaitpura PS, took my daughters Gulapsa (Age – 9 years) and Hina Parveen (Age- 7 years)

to his home, and started sexually harassing them. But my daughters started making noise upon which the people of the neighbourhood came to their rescue and so they were spared from the assault of Mati-ur-rehman, and came home unharmed. I filed a complaint regarding this incident in Jaitpura police station – FIR No. 66/12, under section 356 of IPC. The accused has come out on bail in this case and he deliberately stops my daughters while they are on their way to school and harass them on a daily basis. And because of this I and my daughters are continuously living under constant fear of something bad happening any day.


I have filed a written complaint to the SSP, Varanasi, and SP, Varanasi, with the help of PVCHR but still no action has been taken against the accused.

Present Status

No action has been taken by the police and the harassment at the hands of the accused continues unabated.



16. CASE OF CUSTODIAL TORTURE

Victim Details

Name Md. Shaanu

Sex Male

Father’s Name Md. Sayeed Ahmad

Address Mohalla – Naala

District Bhim Nagar

Incidence Torture in Police Custody

Date of Incidence 19 November, 2011

Place of Incidence Mohalla – Naala, Thana – Sambhal, Bhim Nagar

Police Station Sambhal

I Md. Shaanu, Mohalla – Naala, Thana – Sambhal, Bhim Nagar district, was tortured for 15 days in police custody. On November 19, 2011, grandson of Rashid, s/o Masaat, r/o Aaadampur Road badau Darwaaja, Sambha police station, Bhim Nagar, Faizal (Age- 6 years) who had gone

in a neighbourbood wedding around 3:30pm, disappeared all of a sudden. Even after searching for a long time, the child couldn’t be found by his relatives. So the matter was reported in the Kotwali police station. On November 21, 2011, Rashid’s neighbour Rafat got a phone call from the number 8859172062 from an unknown person, to pay a ransom amount of Rs. 5 lakh. Rafat told this to Rashid. Rashid’s family said that they could not pay such a huge amount. While the conversation was going on, Rashid got a call from Kotwali police station, Sambhal that his grandson is with Gajraula police. When Rashid went there, he was told that his grandson had been sent to Meerut for medical treatment. When Rashid reached Meerut he found that his grandson’s leg was cut-off below knee.

When Rashid came back to Sambhal Kotwali PS, he said that his grandson has identified his kid-napper and that it is me (Md. Shaanu). So, I was wrongly framed in the kidnapping case of Faizal. Sambhal police picked me up from the cold storage on December 9, 2011, around noon. They started beating me, thrashing me with the gun butt causing severe injuries and bleeding. After that they took me to Kotwali PS and was taken to Chaudhary Sarai Police Chowki in Meerut while constantly being beaten. There I was threatened by the SI at gun-point and was told to name my partners in this crime. Otherwise, he said, I would be encountered. I was really bewildered as to what was happening.

After some time, I was taken to the hospital in Meerut where treatment of the child Faizal was going on. The police asked the child that whether he recognises me? The child said that I am Shaanu and that I work with his dad. Nothing related to the case i.e. kidnapping was asked from Faizal. Thereafter I was brutally beaten by the police and sent to jail. Later on, I was proved to be innocent.


I have filed a written complaint to the NHRC, Minority Commission, Governor of UP, DGP of UP, with the help of PVCHR.

Present Status

The NHRC has transferred my complaint to the UPSHRC. No action has been taken in this case yet.

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17. CASE OF THREATENING TO WITHDraW CASE, MURDER-OUS ASSAULT AND POLICE INACTION

Victim Details

Name Shahnaaz

Sex Female

Husband’s Name Sirajuddin

Address H. No. 18/83, Salaarpur

District Varanasi

Incidence Threatening to take back murder case, Murderous Assault and Police Inaction

Date of Incidence 4 June, 2011 and 18 March, 2012

Place of Incidence Salaarpur, Varanasi


I Shahnaaj, w/o Sirajuddin, am a resident of 18/83, Salaarpur, Jaitpura police station, Varanasi. My son Riyaaz was murdered on June 4, 2011, after he drank beer which was laced with some unadulterated drugs. My husband filed a complaint regarding the same in the Jaitpura Police

Station – FIR No. 76/11, under section 302, 201 of IPC, against the accused Waseem Ahmad aka Bavu and Md. Imran s/o Shakeel Ahmad, and which is currently pending in the court. We are getting continuous life threats and harassed by the accused to withdraw our complaint against them. And in continuance of this threat, I was brutally attacked on March 18, 2012, by the accused while I was returning back from my maternal grandfather’s place. The accused attacked me with blades and I fell down. I also got threatened by the assailants to compromise in the murder case otherwise my whole family will face the repercussions. I reported this brutal and murderous attack and threatening to the local police station but the police didn’t take any action against the accused. And because of police inaction, the accused are roaming free and harassing us on a daily basis. We fear for our lives now as nobody is there to protect us from their assault.


I have filed a written complaint to the NHRC, DGP UP, Regional Officer, Chetganj, with the help of PVCHR.

Present Status

The NHRC has transferred my complaint to the UPSHRC. No action has been taken in this case yet.




Victim Details

Name Shadab

Age 25

Sex Male

Father’s Name Tahir Hussain

Address Sirsi Ginnauri Mohalla (Kasba)

District Moradabad


Date of Incidence 22 October, 2011

Place of Incidence Moradabad

Police Station Railway Police, Moradabad

I Shadab s/o Tahir Hussain, r/o- Sirsi Ginnauri Mohalla (Kasba), Tehsil – Sambhal, Moradabad, along with the nephew (bhanja) Md. Anas s/o Md. Hanif, r/o – Saraitarin, Tehsil- Sambhal, Moradabad, had gone to take medicine. While we were returning and crossing the railway gate,

two policemen ( Jai Prakash and Rajendra Singh) stopped us along with one more person Yakoob Khan s/o Ayyub Khan, r/o Jayantipur, Meena Nagar, Police Station – Majhola, Moradabad, and started questioning us and asked our names, address etc. Upon hearing our names they started abus-ing us with religious slurs. Then they forcefully kept us inside the stinking toilet for several hours. After that when we asked the policemen as to why they have detained us illegally, they said that you are terrorists and you have troubled the police very much. The truth is that we haven’t committed any crime. When my family members came to know about my detention by railway police, Moradabad, they came to the railway police station, Moradabad, to rescue me. I was illegally handcuffed. My family members paid the fine in the Upper Chief Judicial Magistrate (Railways) court and got me released.


I have filed a written complaint to the NHRC with the help of PVCHR.

Present Status

The Chief Judicial Magistrate (Railways) released us after we paid the fine. But the police tortured and forcefully took money from us. No action has been taken against the accused yet.

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Victim Details

Name Ayesha

Sex Female

Husband Name Late Mhd. Saleem

Address Makbra Hazari Mohalla

Incidence Death due to Police Torture

Date of Incidence 3 March, 2011

Place of Incidence Makbara Hazari, Muradabad

Police Station Katghar

On 3 March, 2011, the police forcefully entered the house of Ayesha, W/o Late Mhd Saleem, R/o Makbra Hazari Mohalla, Moradabad without any search warrant, suspecting her son Nadeem of buying a lost mobile phone. At that time Nadeem was not home so the police

personnel arrested her husband Mhd. Saleem and her second son Salim. They were taken to the police station forcefully and were physically tortured over there. At the police station, police used excessive force on them. At night when her husband’s condition deteriorated they handed over her husband to the local people of the community. He was beaten to death at the police station.

Proceeding and Follow up Actions

The victim filed a complaint at State Human Rights Commission, National Human Rights Commis-sion, Chief Secretary, Minorities Commission, Police Headquarters, UP with the help of PVCHR.

Present Status

National Human Rights Commission had transferred the case to State Human Rights Commission but no action has been taken so far.




Victim Details:

Name Azhar aka Azzu

Age 20

Sex Male

Father’s Name Ghulam Rasool

Address Mohalla – Vairoon Sarai

District Meerut

Incidence Case of Police Torture

Date of Incidence 7 February, 2012

Place of Incidence Mohalla – Vairoon Sarai

Police Station Sardhana

I Azhar aka Azzu, s/o Ghulam Rasool, r/o Mohalla – Vairoon Sarai, Sardhana police station, Meerut, belong to a simple family. During assembly elections, I got into some dispute with Lay-eek Ahmad s/o Jameel, r/o Mohalla – Vairoon Sarai, Sardhana police station, and Naved s/o

Irshad, r/o Mohalla Uchapur, Sardhana police station. They have been previously involved in many criminal cases in the area and have a bad record in the police books. Both of them were arrested in a robbery case by the Sardhana police, Meerut district. So, while police were questioning them about the names of their other co-partners in crime, they, out of enmity with me, deliberately took my name as one of their associates as being involved in illegal activities with them.

On February 7, 2012, around 10:30pm in the night, Sardhana police ASI Vijay Kumar picked me up from my home. When my brother asked the ASI as to why they have picked me up, the ASI Vijay Kumar said that all three (Layeek, Naved and me) were caught while being involved in planning a robbery. Further when my brother asked the ASI that how that can be possible as they picked me up from home, the ASI Vijay Kumar told him to keep quite otherwise he would also be put behind bars.

I was illegally kept in Sardhana police station from February 7 to February 9, 2012. During this pe-riod I was brutally beaten by the ASI to confess to crimes that I never committed. I was further tor-tured by giving electric shocks, and falsely booked in the case – FIR No. 138/12 under section 2, 3 of the Gangster Act, presenting me to be involved and thus challaned in illegal and anti-social activities under this Act.


I have filed a written complaint to the NHRC, DGP, UP and DIG, Meerut, with the help of PVCHR.

Present Status

The NHRC had instructed the Meerut police to take proper action in this matter but nothing has been done by them yet.

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Victim Details

Name Akbar

Age 30

Sex Male

Father’s Name Medda

Address Gram Lawar

District Meerut


Date of Incidence 29 December, 2011

Place of Incidence Esholi, Meerut

On 29 December, 2011 Akbar, s/o Medda, r/o Gram Lawar, Meerut along with his wife and children was sleeping at his home. Suddenly at 12:30 midnight two police personnel from Esholi PS knocked at his door. He was scared when he saw two policemen knocking at his

door late in the night. Before he could think anything they broke his window and entered into the house. He was physically abused by the two policemen to know about the address of one Wasim. Akbar broke his hand as a result of the physical torture inflicted by the police and they verbally abused his wife. Akbar then took them to the house of Wasim, his neighbour. When they reached Wasim’s house they found that he was not at home. Police also did not ask his family about his whereabouts. The next morning along with the local people Akbar reached the Esholi PS and the police in-charge promised him to pay compensation for the brutal act of policemen. But till date neither the victim’s family received any compensation nor any action is taken against the accused police personnel.

Proceeding and Follow Up Actions

He filed a complaint at National Human Rights Commission, State Human Rights Commission, Police Headquarters, DIG, Meerut with the help of PVCHR.

Present Status

National Human Rights Commission transferred the case to State Human Rights Commission but till date no action has been taken.



22. CASE OF POLICE HAraSSMENT

Victims Details

Name Amirrudin

Age 22

Sex Male

Father’s Name Islammuddin

Address Kalyan Singh, Autora Road

District Meerut

Incidence Police Harassment


Place of Incidence Lichari. Meerut

Police station Maban

Ammiruddin, age 22, S/o Islammuddin, R/o Kalyan Singh, Autora Road, Meerut, PS- Maban was a subject to police torture and harassment. On 9th June, 2012 at around 8 am he was trav-elling to Meerut by bus. When the bus reached Saket Chaupal PS, Civil Lines, two policemen

named Jitendra and Yogesh stopped the bus. They entered the bus and named Ammiruddin as Imran. When the victim discloses his identity as Ammirruddin he was physically abused by the two police officers. He was then taken to Civil Lines PS. They demanded Rs 2,000 for his release.

The victim then informed the matter to SO. Instead of investigating the matter, the SO threatened him with charging him in a false case of possession of drugs against him. He was physical tortured in the custody.

Proceedings and follow up actions

The victim reported the matter in written to PS Headquaters, UP State Commission with the help of PVCHR.

Present Status

Till today no action has been taken against the accused police officers.

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23. CASE OF POLICE HAraSSMENT/ TORTURE

Victim Details

Name Mhd. Abdulla

Age 72

Sex Male

Father’s Name Matloob Hussain

Address Timardas Sarai, Mohalla

District Bhimnagar

Incidence Police torture/harassment

Date of Incidence 28 January, 2012

Place of Incidence Timardas Sarai, Bhimnagar

Police station Nakhasa

Mhd. Abdulla, S/o Shri Matbool Hussain, R/o Timardas Sarai Mohalla, Moradabad. His son Abdulla Ashad was the owner of a mobile shop. He got involved in a fight with one Rashid over some matter. Rashid was son-in-law of MLA Rafikur Rehman. Ashad’s father

Mhd. Abdulla went to police station to report the matter but the matter was not reported. Instead his sons Ashad Jamal, Asad Abdulla, Farooq Abdulla were arrested on false charges.

On 28th January, 2012 police officer Roop Singh Bhagal with four assistants went to victim’s house and started firing. Suddenly, there was chaos everywhere and his sons were running for help. Mr Roop Singh Bhagal also entered his house and started destroying his household things without any warrant. Even his wife Wahida Khatun, a heart patient, was also abused by the police team. When his daughter Zeba Khatun stopped them from destroying their household things they verbally abused her too. They even threatened them that police will file false cases against any person who will stand for the victim.

Proceedings and follow up actions

The victim filed a complaint at National Human Rights Commission, State Human Rights Commis-sion, UP, DIG of Moradabad with the help of PVCHR.

Present Status

Till date no investigation is made on the matter and no action is taken.



24. CASE OF POLICE INACTION IN raPE CASE

Victim Details

Name Shaheen

Age 32

Sex Female

Husband’s Name Harun Khan

Address Bilari Nagar, Jalalpur

District Aligarh

Incidence Police Inaction in Rape Case

Date of Incidence 8 October, 2012

Place of Incidence Delhigate, Aligarh

PS Delhigate

Shaheen, W/o Harun Khan, R/o Bilarinagar, Jalalpur, Aligarh. She used to run a shop rented from Shri Namalum S/o Chhote Lal to support her family. On 8th December, 2009 the victim was raped by Chhote Lal. The matter was reported at Delhigate PS and an FIR was lodged.

Under the influence of Chhote Lal, police failed to take any action against the accused. Since then the victim is approaching various state authorities in the hope for justice. At the same time she is get-ting continuous threats from Chhote Lal. In spite of repeated complaints the police are silent over the matter and failed to make investigations.

Proceedings and Follow Up actions

The victim filed a complaint at State Human Rights Commission, UP, Home Ministry, Police Head-quarters, UP.

Present Status

The State Human Rights Commission did not accept the complaints and police failed to take any action.

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25. CASE OF POLICE INACTION

Victim Details

Name Reish Ahmed

Age 35

Sex Male

Father’s Name Abdul Hamed

Address Fafala

District Aligarh

Incidence Police Inaction on Kidnap case

Date of Incidence 26 May, 2012

Place of Incidence Fafala, Aligarh

Police station Delhigate

Reish Ahmed, S/o Abdul Ahmed, R/o Fafala, Aligarh filed a case of kidnapping and murder of his brother-in-law Kamal. He filed a complaint at Shaisnigate PS in 2009 against seven youth. On 26th February, 2012 they were released on bail. The accused persons were threatening the

victim’s family. They reported the matter to SO Delhi gate and SO city-1 several times and asked for their security. After that on 8th May, 2012 the court ordered to lodge an FIR but the police is not making any investigations in the matter. Because of the failure of police to take any action, the life of eyewitness to the heinous crime of murder is in continuous danger.

Proceedings and Follow UP Actions

With the help of PVCHR the victim filed a complaint at National Human Rights Commission, and Police Headquarters Uttar Pradesh.

Present Status

Till date police has failed to take any action against the accused persons.




Victim Details

Name Ansar

Age 25

Sex Male

Father’s Name Zaheer

Address Jishori

District Meerut


Date of Incidence 17th August, 2012

Place of Incidence Jishori, Meerut

Police Station Mundali

On 17th August, 2012 Ansar, S/o Zaheer, R/o Jishori, Meerut went to a fishing pond where three people - Asaruf, S/o Manzoor, Nazem S/o Riashat and Rahishool S/o Liyakat from the same village entered in a fight with Ansar. When Ansar’s sister-in-law came to stop the

fight she was also physical assaulted by them. Ansar ran for his life but Asaruf shot him with a rifle. Ansar’s leg was injured. When his relative reported the matter to the police station, the police forced them to compromise with the accused. Finally they requested the SSP and a case was registered un-der sections 307, 323, against the accused. But till date the accused persons are not arrested and they are threatening the victim’s family.

Proceedings and Follow Up Actions

The victim filed a complained at National Human Rights Commission, DIG, SP. Meerut.

Present Status

In this case no investigation is made till today.

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27. CASE OF AttEMPT TO MURDER AND POLICE INACTION

Victim Details

Name Aslam Perwaiz

Age 50

Sex Male

Father’s Name Haji Abdul Majid

Address Sarai Bhuki

District Aligarh

Incidence Attempt to Murder and Police Torture


Place of Incidence Sarai Bhuki, Aligarh

Police Station Saasni Gate

I Aslam Perwaiz, s/o Haji Abdul Majid, r/o Sarai Bhuki, Saasni Gate police station, Aligarh district, am the Imam of the Masjid near Jaiganj 35 Number School. This masjid was closed during 1990 riots. From the last two years, the Namaaz has started in the Masjid with the help

of the government. There is a hand pump in the masjid which has been used by people as well as for the animals for drinking water. A particular group (community) of people had previously broken the gate of the masjid but I had kept quiet to avoid conflict and enmity being created between two communities.But on June 11, 2012, Sushil s/o Mohan Singh, r/o 35 Number School Jaiganj, Saasni Gate PS, along with four-five people came with potent weapons, and started abusing me, and threatened that if the gate of the masjid is not opened then they will break it down. I refused to open the gate and just said that if the gate of the masjid remains open then the animals will come and dirty the masjid. Upon hearing this only, the accused people got furious and made an assault on me to kill me. Chaman Khan too, who came to rescue me, was brutally beaten by the assaulters, and was given death threats. Further when I went to the police station to register a complaint regarding the above incident, initially the police refused to register the complaint. But seeing the pressure of the people present there and in the name of maintaining peace in the region, the FIR was registered. Still, even though the FIR has been registered, no action has been taken against the people who tried to create communal tension in the area.


I have filed a written complaint to the NHRC, Minority Commission, DGP of Uttar Pradesh, District Magistrate, Aligarh, as well as to the SSP, Aligarh, with the help of PVCHR.

Present Status

The police have taken no action in this case and the accused have not been arrested and still roam around free.



28. CASE OF POLICE HAraSSMENT

Victim Details:

Name Abdul, Imran, Tanbir

Age 16,18,18

Sex Male

Father’s Name Abdul, Manana. Abdul

Address C 16/72, Lahgapur Gaon, Laalapur

District Varanasi

Incidence Police Harassment

Date of Incidence 26 February, 2013

Place of Incidence Lahganpur Gaon, Laalapur

Police Station Shigra

On 26 February, 2013 some police personnel from Mata kund Police Station entered Abdul Manana’s house, R/o C-16/72, Lalapur, Varanasi and started inquiring about one Sundar. They informed the police that he was not there. Abdul, aged 18, Imran, 16 who is mentally

disabled and Tanbir, aged 18 were taken to the police station. The police personnel informed their families that they are being taken to the police station for interrogation and will be released after that.

But they were not released until 8 pm. The matter was also informed to SSP of Varanasi at 11:30 am the same day. When victims’ family members went to police station to know about their wherea-bouts, they were informed by the police that they were taken by SOG and they don’t know about their whereabouts.

Proceedings and Follow Up Actions

The victim’s family with the help of PVCHR filed a complaint at National Human rights Commis-sion, National Minority Commission, Chief Minister, UP, President of India, Home Ministry, Police Headquarters, UP, DGP, UP, National Commission for Protection of Child Rights.

Present Status

Police released the victims but they were illegally detained for three days and were physically abused.

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29. CASE OF CUSTODIAL DEATH

Victim Details

Name Firaasat aka Firakaut

Sex Male

Father’s Name Mehendi Hasan

Address Badaun

District Badaun

Incidence Badaun

Date of Incidence 2nd February, 2012

Place of Incidence Death in judicial custody in district jail

Police Station Badaun

In the incident of custodial death, PVCHR notify that they have some doubt on the above mentioned incident. They are requesting a judicial inquiry on this matter. According to the terms and conditions released by National Human Rights Commission, the Commission can

take legal action if the concerned authority failed to follow the directions given by the Commission on any matter.


A complaint is filed by PVCHR at National Human Rights Commission. An RTI was also filed. In response to RTI the concerned authority informed that the reason for death of the prisoner is illness. But no report is given.

Present Status

No investigation is made by the National Human Rights Commission.




Victim Details

Name Navi , Kali Shor

Sex Male

Father’s Name Mehboob

Address Shasupur Jatbara, Fategarh

District Fategarh

Incidence Custodial Death

Place of Incidence Farukhabad, UP

Date of Incidence 20 Jnauary, 2012

Police Station Rajepur

On 20th February, 2012, Navi and Kali shor, S/o Mehboob, R/o Shasupur Jatbara, Fategarh, were subject to custodial death at the district jail. On this matter PVCHR is demanding a proper investigation of the matter. They are requesting National Human Rights Commis-

sion that if necessary they can set up an investigation committee for probing the matter. It is also im-portant for the Commission to take an action against the concerned authority if they failed to follow the directions of the Commission over any matter.

Proceedings and Follow ups Action

A complaint is filed by PVCHR at National Human Rights Commission. An RTI was filed. In re-sponse to the RTI, the authority informed that the prisoners were dead due to illness.

Present Status

Till date no investigation was made by the NHRC.

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Victims Details

Name Shabir

Sex Male

Father’s Name Nawab Ali

Address Ramabai Nagar

District Ramabai Nagar, UP

Incidence Case of Custodial Death

Date of Incidence Ramabai Nagar, UP


On 4th January 2012, Shabir, S/o Nawab Ali was reported as dead in custody of the district jail. On the incident of custodial death, PVCHR notified that they have some doubt on the above mentioned incident. They are requesting a judicial inquiry on this matter. According

to the terms and conditions released by NHRC, the Commission can take legal action if the con-cerned authority failed to follow the directions given by the Commission on any matter.

They are requesting National Human Rights Commission that if necessary they can set up an inves-tigation committee for investigating the matter. It is also important for the Commission to take an action against the concerned authority if they failed to follow the directions of the Commission over any matter.

Proceedings and Follow ups Action

PVCHR filed a complaint at National Human Rights Commission. They also filed an RTI.

Present Status

Till date no investigations was made by the NHRC.



32. CASE OF FAKE ENCOUNTER

Victim Details

Name Usman

Sex Male

Father’s Name Jafar Khan

Address Gulab Bagh Sarai

District Banda

Incidence Fake Encounter

Place of Incidence Rajmarg

Date of Incidence 1st September, 2012

PS Banda

In the incident of fake encounter, PVCHR notified that they have some doubt on the above men-tioned incident. They are requesting a judicial inquiry on this matter. According to the terms and conditions released by NHRC, the Commission can take legal action if the concerned authority

failed to follow the directions given by the Commission on any matter.


A complaint is filed by PVCHR at National Human Rights Commission. An RTI was also filed.

Present Status

No investigation is made by the National Human Rights Commission.

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Victim Details

Name Mehandin

Sex Male

Father’s Name Babu Khan

Address Nangla Shaikhu

District Meerut

Incidence Custodial Death

Date of Incidence 18th April, 2012

Place of incidence District Jail

PS Encholi

Mehandin, s/o Babu Khan, R/o Nangla Shaikhu, Meerut died in custody. The other prison-ers informed that on day of the incident there was fight among the jail authority and the prisoners. In the fight Mehandin was injured. He was admitted to Medical College Hospi-

tal and then shifted to private hospital where he was declared dead. The matter was informed to DIG.

Proceedings and Follow up Actions

The other prisoners with the help of PVCHR filed a complaint before the Chief Minister, chief police authority, DM, Minority Commission, National Human Rights Commission. They also filed an RTI.

Present Status

Till date case is still pending and they are still waiting for justice.


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JURY finDings

1. The Tribunal had its sitting for two days from April 3 to 4, 2013 at Varanasi, Uttar Pradesh. Facts relating to 30 cases of gross violations of human rights including custodial deaths in Uttar Pradesh in recent years were placed before the jury for its consideration. Written testimonies of the victims and family members of the victims were made available to the jury members in advance. Family members of the victims also appeared before and gave oral testimonies confirming their statements and also answered the questions put to them by the members of the jury.

2. The Tribunal was an open public event where anyone who has been a victim of police torture or ill treatment was allowed to participate and testify. The sitting of the Tribunal was well-published in the media through an open invitation and later the jury’s observations and recommendations were disseminated through an official press conference organized at the end of the Tribunal. Neither rep-resentatives from the government departments nor from the side of police au-thorities were present before the Tribunal.

3. Of the 30 cases narrated to the jury, four cases related to custodial deaths, one case was of encounter killings and rest of the cases were related to police harass-ment, police inaction and police torture. These are representative cases clearly representing a pattern, a reflection of a reality which is much bigger than these cases. In some cases, an FIR has been lodged but no action has been taken by the police. In some cases, it has been found that police authorities have avoided reg-istering the cases. In some cases it was found that when victims tried to take the help of police to seek justice, instead they were falsely implicated by the police and their harassment by the police authorities continued. In all the cases copies of relevant documents like FIR, written complaints to various state administra-tions, police authorities, Minority Commission and National and State Human Rights Commissions from the sides of the victims were provided for the consid-eration of the jury. Family members and relatives of the victims deposed before the jury confirming their written statements and also answered the questions put to them by the jury members.

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4. Almost all the cases deposed in the IPT have been previously submitted by the victims to vari-ous state authorities and institutions like the SSP, DGP, Minority Commission, Women’s Com-mission and National Human Rights Commission but so far they have not been able to receive any relief in their quest for justice. These cases represent violations committed all over Uttar Pradesh. These violations refer to crimes or negligence committed by the state institutions such as police inaction after an FIR, no action after an FIR, false investigation report, torture, ill-treatment of the victims etc. The nature of violation covers civil and political rights of the vic-tims.

5. The testimony of Mukhtar Ahmad Ansari from Bazardiha, Varanasi at the People’s Tribunal is illustrative of the utmost excess in the misuse of power by the police. Mukhtar recounted the devastating experiences after his son was shot dead by the police. Mukhtar is a poor weaver who barely earns his livelihood to support his whole family. On 11 March, 2009 on the day of festival Holi, his son went to market to buy soap and shampoo. In the market near the mosque some Hindu groups led by local leader were creating problems. When some people objected and questioned the police posted there for not doing its duty properly to catch the miscreants, in reply to that suddenly police open fired indiscriminately targeting people of Muslim commu-nity. In the firing two boys belonging to Muslim community were killed on the spot and eight were injured.

Mukhtar narrated his story: “My son was shot dead before my eyes by the police. We filed an FIR against seven people which included the police personnel also but so far no action has been taken against the culprits. Those responsible to create this situation are roaming free till today. They are influential people. Since we are poor we have no approach to the higher administra-tion. I am poor but I was not given any compensation from the state administration. I just want justice for my son.”

Mukhtar also described how he is being continuously harassed and threatened. The police fi-nally submitted the final report in the court saying that there was no firing and nobody was killed by their bullets. After listening to Mukhtar’s story the panel felt that those killed should get compensation and matter should be pursued in the court of law to know the progress of the investigation.

6. Custodial death of Mohammad Saleem of Moradabad deserves special mention which illus-trates the utmost excess in the misuse of power by the police. There are legal safeguards to pre-vent custodial deaths but they are not implemented always in practice. Non-implementation of legal safeguards creates the conditions of impunity in which the Indian police operate. Ayesha, wife of late Mohammad Saleem gave testimony at the People’s Tribunal regarding the death of her husband in custody as a result of excessive use of force by the police. Her husband Late Mohammad Saleem was forcibly taken by the police on 3rd March, 2011 from his house. The police was looking for his son Nadeem in a lost mobile case. Mohammad Saleem was physically tortured and excessive force was used as a result of which he died. The police did their best to cover up the death. Victim Ayesha approached the National Human Rights Commission and prayed for investigation into the incident. Her case was transferred to the State Human Rights Commission but no action was taken on her case. No ex- gratia payment has been made and the victim has received no relief so far. Ayesha is still running pillar to post with the hope of getting justice for her deceased husband.

7. Gulfasa, a 13 year-old girl from Bazardiha, Varanasi was kidnapped and raped by local criminals on 29th February, 2012. When her father tried to file a complaint in Bhelpur police station, he

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was treated badly. He had to face lot of difficulties even to file the first information report. Gul-fasa’s father Mohammad Hamid narrated his experience before the Tribunal: “No action was being taken on my complaint. I took the help of PVCHR. I asked the police to medically exam-ine my daughter. Police was busy in negotiating a deal with the relatives of the accused and they were talking about releasing them after taking the bribe. I was humiliated and beaten for raising my voice to get justice. I am a patient of blood pressure and diabetes. My condition deteriorated in the police station. Police kept on threatening me by saying that they will implicate me in false cases by charging under the Gangster Act and so on. Police even managed to fabricate the medi-cal report. They have been forcing me to make a compromise. I do not want to compromise. Whatever happened with me and my daughter, I want justice for my family.”

Gulfasa’s case shows the attitude of the police in preventing the victims from reporting the in-cidents of sexual violence and rape which makes it extremely difficult for the victims and the community to receive justice. Rape and sexual violence are responsible for damaging the social life of victims and their families. Victims and their families face the threat of being ostracised by the community which often makes redress extremely difficult to attain. Moreover, denial of access to justice system further adds to the injustices the victims suffer.

8. Abdul Manan has four sons. Abdul Kalam alias Sunder is the eldest one. On 26th February, in the midnight around 2 am the Special Task Force personnel came to his house and picked all four sons of Abdul Manan for questioning. Three persons were released next day in the night but Abdul Kalam was not released from the police custody. On the third day it was published in the local newspaper that in Sarnath police station area Hyder, a known criminal with his group was hatching a plot to loot one businessman and Abdul Kalam was named as an accomplice in the said group.

Victim’s neigbour testified before the Tribunal that Kalam bears a good moral character and he has no criminal record. But Abdul Kalam was charged under section 399, 402 and Arms Act. Abdul Kalam has not been given bail and is still languishing in jail. Victim’s father Abdul Manan has made written complaints with the help of People’s Vigilance Committee on Human Rights (PVCHR) to higher police officials including the National Human Rights Commission but so far no action has been taken. Tribunal felt that in this case NHRC has to be given reminder that on this case no inquiry has been set up and matter should also be taken up with DGP UP and Chief Minister, Uttar Pradesh to secure his release on bail.

9. Mohammad Shaanu’s case highlights the way in which the police often abuse their powers and falsely charge innocent persons of serious crimes to punish them. Mohammad Shaanu of Sam-bhal, Bhim Nagar district was picked up by the police on 9th December, 2011 and he was falsely implicated in a kidnapping case. Shaanu was kept in police custody for more than a week where he was beaten and tortured. His mother Parveen recounted her experiences of police harass-ment while she was trying to get his son’s release: “When I came to know that my son has been taken by the police, I went to the police station. Police officials behaved very badly with me. They used abusive language; they did not spare me even being a woman. For almost a week they kept my son in their custody. My son was beaten so much that I could see his body bleeding all around. I cannot express it properly. I feel that law is only for public, there is no law which can punish the police for its excesses.”

10. Aslam Parvez had an argument with some anti-social elements of the locality over a hand pump in the mosque where he is employed as an Imam. He was abused and assaulted on 11th June, 2012. When he tried to file a police complaint, he was refused by the police initially. But after

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the public pressure, an FIR was registered. Instead of taking any action police started harassing Aslam Parvez and arrested his son.

It is common for the police to harass and intimidate Muslims by filing false cases. This has been best illustrated in this case. Aslam Parvez described how the police implicated his son on false charges and he is struggling to get justice for the abuses his son has been subjected to at the hands of the police: “My son is a student and doing graduation from Rajasthan. Police used to call him and torture regularly. On 16th January my son was picked up from home by police and booked under various false charges such as the Gangster Act and Arms Act. He was kept in po-lice custody for two days. He was tortured by hanging and beating. We were not allowed to give him food. When he came back we found his whole body was bearing swelling marks.” Aslam’s son was released on bail but no action was taken against the culprits and the perpetrators who tortured the victim.

11. Shaheen from Jalalpur, Aligarh testified before the Tribunal about the inaction on the part of the police. Shaheen was sexually assaulted and raped by Chhote lal in December 2009 and she lodged an FIR. Under the influence of the accused, police failed to take any action against him. Shaheen was accompanied by a neighbour who had helped her and testified on her be-half before the Tribunal. His testimony highlighted the culture of the Indian police force which remains principally concerned with supporting the interests of the ruling classes at all costs instead of providing justice to the victims. He described: “The accused rapist, a retired Daroga was a close relative of a minister in the then BSP government. When police took all of them in-cluding Shaheen to police station to complete legal procedures, they sent Shaheen for medical examination, but under the pressure from the minister, the accused was set free. The case was prepared as per the directions of the minister.”

Finding that the police are extremely reluctant to investigate, the victim wrote to various state authorities for assistance with the hope to get justice for her. In spite of repeated complaints the police have failed to arrest the culprit. In addition to harassing her and threatening the witness with dire consequences, police is trying to obstruct her access to justice by failing to conduct proper investigation into her complaint.

Most of the victims and witnesses at the People’s Tribunal spoke of their difficulties they had to face in the whole process of seeking justice. They also narrated their experiences as to how they have been treated by the Uttar Pradesh police relating to incidents of corruption, torture, extor-tion and killing perpetrated by them. They highlighted the incidents of corruption, harassment, intimidation, assault, torture and murder at the hands of state police. Many who testified before the Tribunal strongly felt that police force has a biased attitude towards the Muslim minority and being the poorest section of the society they are disproportionately subjected to these types of violations. From the very beginning - the stage of reporting the case to the police to their ef-forts to get the perpetrators punished - victims had to undergo insurmountable challenges. The testimonies highlighted the lack of accountability and impunity enjoyed by the police officials which is the major contributing factor to the use of violence in the course of law enforcement.

After the completion of the two-day event the jury members expressed their serious concerns about the increasing number of cases of human rights violations in Indian society in general and Uttar Pradesh in particular as most of the victims demanded to put an end to torturous practices used by the Indian police and a change in their functioning while dealing with common people.

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JURy RECOMMENDATIONS

To put a check on the practice of torture, inhuman and ill-treatment of innocents in police custody, the jury made the following recommendations:

1. The jury unanimously agreed that in all the cases deposed before it, they have noticed that dis-crimination has assumed an institutionalised form which is manifested in the behaviour of cru-cial constitutional institutions of public importance like police and judiciary. This discrimina-tion is clearly visible in the attitude of police which is primarily responsible for growing cases of human rights violations such as forcible and illegal arrest, false cases against innocents, pro-longed detention, custodial torture, rape and extra-judicial killings in the state of Uttar Pradesh.

2. In its observation about the human rights situation in Indian state of Uttar Pradesh, the jury noted that with increasing police power coupled with flourishing feudal social structure in Uttar Pradesh, a vast majority is oppressed on various grounds such as class, caste and gender. Gap is widening between people and police who lacks accountability as a result the victims of police harassment and torture do not get justice.

3. The jury member highlighted the R D Nimesh Inquiry Commission which was set up in March 2008 by the BSP government to probe the charges slapped on two Muslim youth accused in November 2007 serial blasts at district courts of Lucknow, Varanasi and Faizabad. The report was submitted to the state government by the Commission on August 2012. When an RTI ap-plication was filed regarding that, the Home Department of Uttar Pradesh replied that they have not received the report. Though, the report was already released by the civil liberties group in Lucknow. It shows the style of the functioning of the state machinery in the country. They do it freely and get away with it easily.

4. The jury believed that Indian police structure is the byproduct of British colonial model which needs transformation. Police reforms should be immediately implemented and police force should be freed from political control. They should be given Independence in functioning. There are rules and regulations at each and every step. Police cannot go beyond those rules in performing their duties. They should be made accountable when they are given freedom to work without any political control. Public should make pressure on the government to imple-ment reforms even if they are in limited fashion. The jury suggested that police accountability mechanism should be developed and strengthened in order to establish the rule of law. The absence of proper police accountability promotes crime incidents, communal riots and contrib-utes to public sense of insecurity. Accountability based policing system can put a check on the institutional discrimination.

5. The panel also raised the issue of the role of the judiciary especially magistrates. It is generally found that magistrates do not cross-check the charges and evidences produced by the police and readily accept the police version. Even courts ignore the Supreme Court’s guidelines related to matters of arrest provided in D K Basu case. Custodial jurisprudence should be taken seri-ously. Legal provisions with regard to police custody during the trial period should be clearly defined. Innocent people languish in jail for many years because their bail applications are not considered seriously. Moreover courts at the time of giving final judgments normally decide that there was no evidence against the accused. So, in order to avoid such injustice and delay, evidences should be properly cross-checked before sending the accused to police custody when the petition comes for the bail of the accused. The panel further suggested strict action against the magistrate who overlooks the law and fails to perform duties as per the due process of law.

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The issue puts a question mark on the role of criminal justice system in the country. The jury noted that ultimately what is the society going to gain or achieve in real terms by keeping an in-nocent person in jail for 15 or 20 years?

6. The panel also felt that stringent laws like UAPA should be repealed with immediate effect. Panel members pointed out that earlier it was TADA. According to some published figures, during the course of operation of TADA, 73,000 arrests were made and out of which only 4,000 people were convicted by the law. The fate of remaining 67,000 people is not known as they con-tinued to be kept in jails for years. The panel opined that the Indian Penal Code (IPC) covers every crime on earth; we do not need any stringent laws. Laws like AFSPA and UAPA should be repealed. UAPA is more dangerous than TADA. Offences under Criminal Amendment Act are non-bailable. Under UAPA one can be kept in police detention for 180 days. In offences related to terrorism, police files two to three dozen of charges and in every case the accused has to get the bail. A jury member specially mentioned the case of Abu Basher who was arrested in terror-ism related offences, he has been charged with 60 cases against him. The jury member said we have investigated his case and found that he is completely innocent. But the tragic part of Indian law is that he would in all probability die in jail but will never get bail from the court.

7. The panel feels that there must be defined provisions for reparation for the victims of state re-pression and communal riots. Any one whether police or government official who violates the law and if it is proved then he must pay for his act. It will work as a deterrent for the misuse of powers. As of now, compensation is hardly paid to victims of police excesses. Because nobody is paid and no one pays and therefore police feels free to act in a manner which is not permit-ted under the law of the land. It is therefore required that a compensatory mechanism should be evolved with adequate international standards under which victims of police atrocities and communal onslaughts should be rehabilitated in a place of his or her choice with the same eco-nomic standards in which he or she had been living in the past.

8. Police should be sensitised to respect diverse cultures, traditions and religions. Police person-nel should be given on-job training for this purpose and they should also be sensitised towards the culture of human rights. More often police action in any incident is found to be one-sided. There is a need to clearly identify the aggressor and the aggrieved. No attempt should be made to target a person belonging to a particular religious community especially the Muslim minority without credible evidences. Indian police have pre-conceived notions about the Muslims, for instance, the notion that Muslims is one such community that is always involved in instigating riots and so on. This mentality provides the space and opportunity to the lower level police officials to act arbitrarily. Such tendency and practice gets further encouragement due to negli-gence shown by the senior level officers.

9. For an independent and unbiased functioning of the police, it is highly essential that people from all communities, faith and religion should be recruited in the force. Steps should be taken to develop spirit of secularism among police personnel. A secular police force is crucial for a country which is diverse in culture. Some lessons can be drawn from developed western na-tions.

10. Cases against the concerned police officials related to death in police custody and encounter killing should be registered and investigated in the same manner as it is done in cases related to ordinary citizens who attempt to kill or who has killed someone in self defence. In addition, the responsibility to investigate cases related to custodial death should be entrusted to an independ-ent and impartial agency.

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11. Police complaint committees or Grievance cells should be officially formed at district levels which should function as per the guidelines suggested by the police commissions from time to time. The complaint committee would include prominent citizens and retired judges who should have the power to investigate the complaints against police by ordinary citizens.

12. In Uttar Pradesh police administration, there is a common practice of giving out of turn promo-tions to police officials on the basis of their work performance, some are even given gallantry awards. This practice encourages use of wrong practices by the police and has largely contrib-uted to the culture of fake police encounters. This practice or policy should be immediately stopped.

13. The jury members expressed their dissatisfaction with the functioning of Uttar Pradesh Human Rights Commission. One jury member pointed out the poor state of affairs with UPSHRC by referring to the appointment of its chairperson who accepted the appointment on the condi-tion that he would be based in Noida whereas the main office of UPSHRC is at state capital, Lucknow. According to the jury member it was quite disturbing to see the approach of Uttar Pradesh government towards a constitutional body when the cases of human rights violations are mounting in the state. The jury recommended that Grievance Redressal Mechanism of State Human Rights Commission should be further strengthened. There should be an impartial and independent body with sufficient man power to investigate the cases of human rights violations.

14. In cases related to police torture, use of Right to Information Act to get information should be encouraged.

15. Supreme Court of India’s procedural guidelines with regard to granting bail should be strictly enforced. This can help in providing speedy justice to the victims in cases related to arrest and disappearance. This will also help minimise the incidences of human rights violations.

16. In general, there is a practice when some people are arrested on the basis of mere suspicion, they are presented before the media during press briefings of senior police officials as a mark of good work by the police. Photographs of such accused are immediately published by the media. But when they are declared innocent and freed, they generally do not figure in media reports. This practice of exhibiting good work by the police should be immediately stopped.

17. A jury member also took note of growing culture of hate speeches especially in Uttar Pradesh. No one has been punished so far in such cases. It was demanded that the state government should be extra active to check this practice. Strong action should be taken under Section 153A of the Indian Penal Code against organisations which indulge in hate campaigns and communal propaganda.

18. The jury also observed that community policing model should be developed and practically put to use. This can be done through mohalla committees of ordinary citizens. Area based commit-tee’s engagement can help solve the growing rate of crimes. This model is based on the philoso-phy of policing with the cooperation of citizens rather than policing over citizens. This would be an effective way to strengthen civil defense system.

19. People should not expect police to achieve more than they can do as per their capabilities. Un-realistic expectations on the part of public drive and compel police force to use illegal methods and practices to achieve desired results.

20. Appreciating the efforts of PVCHR in helping the victims of police torture, the jury hoped that in future such efforts would continue in the direction of creating a cadre of lawyers at district

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levels who would be committed to defend human rights and provide free legal aid to help vic-tims of police torture and all kinds of abuses by taking up litigation in the courts. Court pro-ceedings and litigations are lengthy and unimaginably expensive in the country which is beyond the economic capacity of ordinary poor citizens.

In sum, all the jury members welcomed the initiative taken by the PVCHR with the collaboration of HRLN. During the Tribunal around 80 people participated and more than 30 cases were dis-cussed. After an overall assessment of the situation on the basis of the testimonies, the jury members expressed that they are shocked to see that in most of the cases the complainants have not received any kind of remedy either from the state administration or from the National Human Rights Com-mission and the Uttar Pradesh Human Rights Commission. They also expressed their deep concern on the complete failure of the administration to protect the most basic rights of its citizens and the total collapse of the legal system in securing, protecting and enforcing the rights of the citizens of the country. It is evident from the testimonies that vulnerable sections in Muslim minority community have been made the targets of all kinds of police atrocities including ill-treatment, intimidation, ex-tortion and torture. In addition, many of those who testified at the Tribunal found that police officials inhibited their access to justice. The courts and criminal justice system have consistently failed to deliver justice and strengthen the human rights and constitutional safeguards of the victims. Having gone through all the testimonies, the jury found the situation to be alarming and this clearly shows the level of disillusionment of vulnerable members of minority community with the system of civil, police and judicial administration of Uttar Pradesh. There is a need to reform the functioning of police and improve its image so that faith of victims and people can be re-established in the justice system in the country.