Fundamental rights and the 59th Amendment to the Constitution: the apparent incompatibility of the amend- ment with India’s obligations under the International Covenant on Civil and Political Rights
The Indian constitution protects fundamental rights in Part III, including the right to equality before the law (Article 14), the right to freedom of speech, expression, assembly and association (Article 19), the right to life and personal liberty (Article 21) and protection from unlawful arrest and detention (Article 22). The Supreme Court is empowered to enforce these rights, which cannot be suspended unless an emergency is proclaimed in which there is a threat to India’s security “whether by war or external aggression or armed rebellion.” Special protection is given to the right to life and personal liberty (Article 21) and the right not to face retroactive punishment (Article 20): a June 1979 amendment to Article 359 of the constitution has meant that these rights may never be suspended, even when a proclamation of emergency is operating.
However, in March 1988 the government introduced the 59th Amendment to the Constitution in parliament, and it became law on 30 March. The amendment, to Articles 352, 356, 358 and 359 of the constitution, permits the government to proclaim an emergency in the state of Punjab, once again on the vaguely defined ground of “internal disturbance” where “the integrity of India” is threatened, and again permits the government to suspend even the protection of the right to life. The amendment also permits direct rule from New Delhi (in India called President’s rule) in the state of Punjab for up to three years without having to obtain parliamentary approval.
The amendment annulled the important protection which the Indian parliament had given in 1979 to the right to life and personal liberty when it passed the 44th Amendment to the Constitution at the end of the 1975- 1977 period of emergency. Thousands of prisoners of conscience were detained throughout India during that emergency and, after a Supreme Court Judgement of 1976, were denied the chance to challenge the legality of their arrest or detention and to bring a writ of habeas corpus. The Supreme Court accepted in 1976, in the case of A.D.M., Jabalpur vs. Shiv Kant Shukla (commonly known as the ‘habeas corpus’ case), the argument of the then Attorney General that there was no personal rights law for the time being because during the emergency then in force the basic right to life and liberty was suspended. Indeed, the then Attorney General conceded that during an emergency in which the right to life and liberty enshrined in Article 21 of the constitution was suspended – as had happened anyone could be taken away by a police officer and shot with impunity and that the courts had no powers to protect people from such abuses or to grant redress. In order to prevent such grave infringements of basic human rights the parliament in June 1979 enacted the 44th Amendment, according to which the right to life and personal liberty could never be suspended, even in an emergency. Parliament also sought to restrict possible future abuse of the wide powers given to the executive in India in an emergency by replacing the widely defined grounds “internal disturbance” the grounds for the imposition of the 1975 emergency by replacing the widely defined grounds “internal disturbance” the grounds for the imposition of the 1975 emergency – with the much narrower term “armed rebellion” as grounds for proclamation of an emergency.
The effect of the 59th Amendment will apparently be that if an emergency were proclaimed in Punjab and the right to life and liberty as guaranteed in Article 21 of the constitution suspended, a person arbitrarily arrested or detained in Punjab would no longer be able to ask for a judicial review of his detention. Furthermore, unless the Supreme Court were to reverse its 1976 Judgement in the habeas corpus case, the government or the security forces would not be bound by the law when making arrests or detaining people or even when arbitrarily shooting people in Punjab. In theory they would be entitled to shoot anyone at will. Under the legal authority of the 1976 Supreme Court Judgement, victims and their relatives could also be denied legal redress for such extrajudicial killings, and could be prevented from initiating legal action for compensation or from ensuring that guilty police officers or other security personnel were brought to justice. In short, the government and the security forces would no longer be held accountable for violating the basic human rights of citizens in Punjab and arbitrary actions, infringing the fundamental rights guaranteed in Part III of the constitution, even the right to life, would be permitted in the state. Amnesty International believes that the 59th Amend- ment to the Constitution could be used to facilitate further large-scale arbitrary arrests and detentions of political prisoners, notably of prisoners of conscience, and could moreover facilitate further arbitrary killing os political opponents or anyone perceived as such. The International Covenant on Civil and Political Rights, to which India is a party, prohibits arbitrary arrests and detentions under Article 9. Article 4 of the Covenant permits state governments to take measures derogating from their obligations under the Covenant only in cases of “public emergency which threatens the life of the nation” only to the extent strictly required by the exigencies of the situation” and provided that measures taken do not discriminate solely on the ground of race, colour, sex, language, religion or social origin. Moreover, Article 4 of the covenant is unambiguous on the point that even if an emergency is proclaimed no government has the right to suspend the right to life of its citizens, in any circumstances. It appears therefore that the provisions of the 59th Amendment would allow for the contravention of India’s obligation under Article 4 of the covenant.
- Torture
The most persistent allegations of torture of political prisoners have come from Punjab. Prisoners have report- ed being beaten while suspended from the ceiling with their hands tied behind their backs and in some cases, being given electric shocks. They have claimed to have been beaten all over, including on the soles of the feet, and that they have had their legs stretched wide apart and chilies stuck up the anus. Several victims have filed petitions in court and some have identified those who had inflicted the torture — they were police officers or members of the Central Reserve Police Force. In a few cases the allegations have been confirmed by an independent authority and compensation accordingly granted to the victims. In May 1986, for example, Justice Tiwana, conducting a judicial investigation ordered by the Punjab Government, found that 90 Sikh detainees arrested in June 1984 had been tortured in Ladha Kothi jail, Sangrur, and ordered compensation of between Rs 10,000 and Rs 20,000 to be paid to each victim — compensation which was, it seems, eventually paid.
Complaints of torture usually concern the initial period of detention, when detainees are often not given access to a magistrate within 24 hours of arrest, as the law requires. This is illustrated by the case of a Sikh resident in the United Kingdom, who the police said had come to India to campaign for a separate Sikh state and had conspired to commit acts of violence in New Delhi to that end. He was arrested by the Jammu police in November 1985 and was reportedly denied access to a magistrate for two months. During this phase of his detention in Jammu and Kashmir he was tortured by beatings, having a finger nail pulled out and having chillies put on sensitive parts of his body. He was tried under the TADA and, although the prosecution called 33 witnesses, the judge hearing the case ruled that no evidence of a conspiracy was produced. He was released in August 1987.
Torture complaints have frequently come from many other parts of India too. For example, civil liberties groups have reported that suspected members of Naxalite groups and their symphathisers in rural parts of Andhra Pradesh have been tortured by the local police and that suspected members of the left-wing Indian People’s Front have been tortured in police stations in villages in Tamil Nadu. In some cases concern about torture has been expressed in official forums. For example, members of the Tamil Nadu legislative assembly made allegations of torture by the police and a local branch of the Criminal Investigation Department in March 1987. Sometimes official inquiries are ordered into allegations of torture, but those allegedly responsible often fail to cooperate. For example, the police in the northeastern state of Manipur ordered an inquiry into reports that in early November 1987 two men from Tolloi village were taken to an army camp by members of the Mahar Regiment and Assam Rifles, stripped naked, soaked in petrol and set on fire — the victims suffering third degree burns and broken limbs. But by the end of the year those named as responsible had failed to appear before the police, as the police had ordered, while the man leading the protests about the treatment of the two men was arrested and charged with illegal possession of explosives.
Every year, according to official statistics, about a thousand cases of rape of women belonging to the Scheduled Castes and Tribes are reported — many of them of rape by the police of women they have taken into custody. But complaints of rape are often not investigated, are difficult to prove and only rarely result in those responsible being brought to justice. For example, on Dec ember 1987 the Supreme Court of India expressed concern about the “pathetic state of affairs” in Gujarat, and criticized the state government for failing to act on the findings of a special commission appointed by the Supreme Court nearly two years earlier to investigate allegations of rape by the police. The commission found evidence that four police officers had been guilty of raping a tribal woman in Baruch district and that several other officials and doctors had been involved in a cover up. The Supreme Court found that no action had been taken against them. In 1988 there have been allegations of police raping women and girls in Bihar, Assam and Orissa, and although several official inquiries have been conducted into these reported events, only the Assam Government has established a judicial inquiry into the allegations. Convictions of police officers charged with rape are extremely rare, and trials, if held, are very slow. For example, on 23 January 1988 six police officers were sentenced to death and four to life imprisonment for an incident that occurred in Uttar Pradesh eight years ago. (A number of those sentenced have since been released on bail).
Those particularly liable to be tortured are the under- privileged members of Indian society, such as members of the Scheduled Castes and Scheduled Tribes, to whom the constitution gives special protection. An example is the alleged torture of nine tribal leaders by the Dhambhola Police in Durgapur district, Rajasthan, in August 1987. They were arrested after participating in a demonstration demanding better relief work and prompt payment of minimum wages during droughts. The nine were eventually released after a petition had been filed on their behalf in the Supreme Court. Another example is the case of 150 Scheduled Caste families from Raunia village, Gaya district, in Bihar. These families maintained in a petition submitted to the Supreme Court in April 1987 that the police, siding with local landowners, had tortured them on the grounds that they had committed a theft. They claimed that excrement had been forced into their mouths and hot water poured over them. The police later reportedly arrested some of the same villagers on what the latter claimed were false charges. In Maharashtra, tribal people from Thane and Raged districts, deprived of traditional lands and requesting rights of ownership of their houses, have alleged that in early 1987 they were beaten and in some cases given electric shocks by the local police, who were said to have been acting in collusion with middle agents involved in taking over tribal land.
- Deaths in custody
There have been dozens of reports from all over India that arrested people have been so severely tortured during interrogation that they have died. The allegations include reports from Andhra Pradesh, Assam, Bihar Orrisa, Punjab, Rajasthan, Ta-mil Nadu, The Union Territory of Delhi and West Bengal. In August 1987 a lawyer, M A Rasheed, died allegedly in the custody of the Karnataka police. In October 1987 the state’s chief minister informed Amnesty International that his death was the subject of an inquiry being conducted by the Central Bureau of Investigation, which found in April 1988 that there was a prima facie case that a police sub-inspector, five other police officers and eight civilians had been responsible for torturing and killing him. Most victims have been criminal suspects — in New Delhi they have included two members of the Scheduled Castes – but in Andhra Pradesh, Punjab and Assam many of them have been men active in politics. In some cases, such as those reported from Andhra Pradesh, Orissa, Rajasthan, Kerala and West Bengal official inquiries have been conducted which have found the police responsible for torturing suspects and causing their death.
Relatives of the victims have frequently complained that no action has been taken against the police responsible for torturing people to death. If identified the police officers concerned have usually been transferred. Otherwise a bald statement has been made that “departmental action” would be taken. There have rarely been criminal prosecutions of individual police officers. In 1987, there have been such prosecutions in West Bengal, New Delhi, Rajasthan and Orissa, but to Amnesty International’s knowledge no police officers have been convicted of causing death in custody, and in only two cases has compensation been granted to relatives. After legal action compensation was granted in early 1987 to the family of Mohan Singh, who was beaten to death in a Rajasthan police station. The Rajasthan Government had earlier pleaded in court that it was not obliged to pay anything. Compensation was similarly granted eventually to the parents of a man called Bhuvanendran who died in a Kerala police station in 1980. After his death a local group helped his parents to sue the police. Seven years later the court found that Bhuvanendran had died as a result of police torture, and although the state of Kerala had argued it was not liable to pay compensation the court rejected this plea and held the state was responsible for wrongful acts committed by its employees in the course of duty.
- Reports of extrajudicial killings and “disappearances”
Amnesty International uses the term extrajudicial killings for unlawful and deliberate killings carried out by governments or with their acquiescence. Extrajudicial killings are to be distinguished from killings that occur as a direct consequence of clashes between contending parties and from killings by accident or mistake.
Allegations are still being made that political activists, those suspected of assisting them and, in one widely publicized instance, members of a minority community, have been deliberately and unjustifiably killed by the police, paramilitary forces and armed forces and that no attempt has been made to bring those responsible to justice. Of particular concern are allegations that the Provincial Armed Constabulary (PAC), called in to quell Hindu-Muslim communal violence in the city of Meerut, Uttar Pradesh, in May 1987 deliberately killed numerous unarmed civilians and disposed of some of their bodies by throwing them into rivers and canals, in some cases after arresting the victims and taking them away in secret. According to these allegations some of them by eye- witness is the predominantly Hindu PAC arrested several hundred Muslim men in the Hashimpura area of Meerut on 22 May and drove them to the Upper Ganga Canal, near Muradnagar, where they shot several dozen and threw their bodies in the water. Amnesty International has interviewed one of the survivors, who confirmed the reports and had two bullet scars on his shoulder from the shot that penetrated his shoulder but failed to kill him.
Next day the PAC is alleged to have gone on a rampage in the nearby village of Maliana, and to have deliberately shot unarmed men, women and children. A total of 80 bodies were found in the area, believed to be those of victims of these killings. Another five men allegedly died in jail as a result of beatings. The government has so far denied that the PAC was responsible for the deliberate killing of unarmed civilians or for arresting them and killing them in secret. In November 1987 the United Nations Working Group on Enforced or Involuntary Disappearances took up with the Indian Government 30 cases of men who had “disappeared” in Meerut in May 1987.
In a report on the events in Meerut published in November 1987 Amnesty International said the findings of inquiries should be made public and called for a review of the training and composition of the PAC so that members of minorities could be adequately represented. While refusing to comment on the Amnesty International report the Home Ministry in Delhi said that the composition of the PAC should be “more broad based”. More recently it has been reported that the PAC were receiving training in order to make them more sensitive to the problems of minorities and to safeguard the latter’s rights. The percentage of Muslims in the force is officially said to have been increased, although according to other reports there has been no substantial change in the structure and composition of the PAC.
Allegations of deliberate police killings have been made in Bihar, where landless labourers and marginal farmers – many of them from the Scheduled Castes and Scheduled Tribes – have been involved in disputes with landowners over such issues as land ownership and payment of minimum wages. Sometimes they have received the assistance of left-wing groups, in a few cases that of Naxalite groups using violent methods. For their part local landowners have frequently used private armies or senas, and there is evidence that they have sometimes worked in close collaboration with local politicians and police. In several instances the police and senas are reported to have deliberately killed numerous villagers – most of them belonging to the Scheduled Castes and Tribes – in conflicts over land or wages. In a few cases, such as the killing in September 1987 of seven members of the Scheduled Castes in Kirichatra village, Jehanabad district, the police officials have been suspended from duty for failing to intervene to prevent killings by sena named 26 of the alleged victims. The then state Director General of Police denied that the security forces had killed people in fake “encounters”, adding that 26 “terrorists” had been killed by the security forces in genuine encounters in Faridkot district. However, according to an Indian press report of 10 October 1987, a Senior Superintendent of Police in Punjab said that “terrorists who had committed five or more than five murders were killed by the police after they were caught. .
These contradictory reports have been hard to verify, particularly since access by independent outside observers to the state is severely restricted. However, persistent reports of such deliberate “encounters” in which security forces personnel have rarely been killed or injured during such “encounters” and the victims have usually been killed outright rather than wounded. Furthermore, the central government has so far not attempted to have these allegations investigated by an independent, impartial body.
