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GENERAL APPEAL (India): A failing criminal justice system betrays the poor in India, especially the women

September 14, 2006

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

15 September 2006
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UG-016-2006: INDIA: A failing criminal justice system betrays the poor in India, especially the women

INDIA: Dowry; violence against women; police inaction; collapse of rule of law
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Dear Friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a human rights organisation in West Bengal that a corrupt policing system and an insensitive judiciary in India is promoting human rights violations against the poor. The two cases mentioned below were investigated by MASUM and it depicts the extent to which the criminal justice system has fallen in India. The two cases are also examples of how such a failing system affects the rights of the poor in India, especially the women.


CASE 1:

Mrs. Momena Bibi was married to Mr. Naharul Mondal on 28 April 2006. Momena is from a poor family. It is alleged that Momena was forced by Naharul into a sexual relationship with him prior to their marriage. Naharul and Momena are from the same village. Even though Momena and Naharul were married, Naharul’s family refused to accept the marriage. Naharul’s father Mr. Alauddin is a boatman working for the Border Security Force (BSF). The BSF is deployed along the Indo-Bangladesh border. Being a paramilitary force a job in the BSF is considered to be a privileged job in the remote border villages in India. Alauddin being a boatman with the BSF is hence in a position to make use of his identity of a BSF employee to his advantage.

The marital relationship between Momena and Naharul was not smooth. It is alleged that Naharul was cruel to Momena when she stayed with Naharul at his house. It is also alleged that Naharul’s parents and his sister were also misbehaving with Momena. When the cruelty became intolerable, Momena had to leave her in-law’s house and return to her house and she started living with her parents. Naharul followed Momena to her house and started spending the nights at Momena’s house while at daybreak he would return to his house. Naharul’s family was opposed to this however.

On 25 June 2006 at about 3am Naharul’s parents along with his sister and another person from the locality, Mr. Bhuttu Mondal, came to Momena’s house and physically assaulted Momena and her parents accusing them as responsible for the marriage between Momena and Naharul. They also threatened the family that they would kill them. Aggrieved by the assault Momena went to the Jalangi police station on the same day to lodge a complaint upon the incident. However, the police officers at the station refused to register Momena’s complaint and asked both families to report at the station to settle the matter.

It is alleged that in the meanwhile a case was filed in the court of the Chief Judicial Magistrate Berhampur on 7 June 2006 against Naharul. It is alleged that this case was filed by Naharul’s sister Mrs. Papiya Bibi, where she posed as Momena in the court. The case was filed under the relevant provision of the Criminal Procedure Code of India claiming maintenance from Naharul. It is further alleged that once the case was on record, Papiya posing as Momena in court entered into a compromise deed with Naharul, showing that the relationship between Momena and Naharul was terminated at Momena’s initiative and that she has pronouncing Thalaq. In the deed it was also mentioned that Naharul has paid 10,000 rupees [US 227$] as a permanent settlement. It is suspected that in fact the person behind the entire drama was Naharul’s father Alauddin.

Later, on 9 July 2006 when both families appeared at the Jalangi police station, Alauddin challenged Momena by showing documents from the court which showed that their relationship has been terminated by an order from the court. It is then Momena was aware that there was a case in court filed in her name by someone else and the documents were forged to manage a decree of divorce. Shocked by the entire incident Momena approached the Jalangi police on 30 July 2006 to lodge a complaint against her in-laws, particularly Papiya and Naharul for obtaining a court order by fraud. However, the Officer in Charge at the police station Mr. Somnath Chatterjee insulted Momena at the police station by shouting at her and also asked her to wear her complaint, which she intended to file at the police station, as a pendant. Hearing this Momena asked the officer the reference number at the police station regarding her earlier complaint. However, the police officer refused to give any details.

Momena and Naharul are from Dayarampur village of Murshidabad district in West Bengal. The village is within the jurisdiction of Jalangi police station. This police station is notorious for the atrocious acts committed by the officers of this police station against the villagers residing within its jurisdiction. The AHRC in the recent past has issued several urgent appeals on cases from this police station against which no action whatsoever has been initiated by the state or central government in India. For further information please see UA-59-2005, UA-73-2005, UA-116-2005, UA-130-2005, UA-161-2005, UA-163-2005, UA-196-2005, UA-232-2005, UA-283-2006 and UA-298-2006.

It is important to note that a Criminal Court in India cannot decree a divorce in a Muslim Marriage if the petition before the court is one for maintenance under the Muslim Women Protection of Rights on Divorce Act. The court can only decide the quantum of maintenance to be paid by the husband to the wife in such a case. However, in this case the court not only failed to verify who the actual petitioner was but also pronounced a decree of divorce in the absence of any jurisdiction.

CASE 2:

Mrs. Sunita Shaw was married to Mr. Binod Shaw on 28 January 2003. Soon after marriage Sunita was subjected to cruel treatment by her in-laws and her husband. They were demanding for more money to be brought from her home. In fact Sunita’s parents had gifted Sunita with money, jewels and household articles at the time of her marriage. It is alleged that Sunita’s in-laws were not satisfied by the gifts that she brought and were pushing her to bring more. It is also alleged that Sunita’s father tried to intervene at various times trying to negotiate terms with Binod and his family so that Sunita is no more ill-treated at home. It appears that none of these attempts yielded result.

On 25 July 2005 Sunita’s brother Mr. Pappu Jaiswal was informed that his sister was brutally tortured by her husband and her in-laws on 25 July and during the immediate preceding days. He was also informed that on 25 July his sister was forced to commit suicide by burning herself inside the house. He was informed that his sister was asked to pour kerosene over her body and set herself ablaze. The information was soon confirmed and it was also known that Sunita was admitted at SSKM hospital with 98% burns on her body.

Pappu lodged a complaint regarding the incident at the Golabari police station on 26 July 2005. The complaint was registered as Golabari police station case number 179/2005 dated 26 July 2005 under Sections 498A [cruelty to wife by husband and in-laws], 326 and 34 of the Indian Penal Code. However, it is alleged that the then investigating officer of the case Mr. Mominul Islam did not investigate the case properly. It is also alleged that even though Pappu had named the probable accused in the case, none of them were arrested by the officer immediately. Sunitha died on 28 July 2005 at the hospital. After Sunitha’s death, the police incorporated an additional offense to the earlier crime registered. They amended the police-charge to include Section 304B in the crime.

Sunita’s family was not satisfied in the progress of the investigation in the crime. This prompted them to lodge a complaint with the Women’s Commission in India. The complaint to the Commission was filed on 18 August 2005. After its inquiry the Commission mailed to Sunita’s family its report on 19 June 2006. The Commission’s report also contained a report submitted by the Superintendent of Police, Howrah regarding the police investigation into the case.

In the report dated 2 February 2006 filed by the police to the Commission, the police have mentioned that Sunita had given a statement to the then investigating officer informing the investigating officer that she suffered burns in an accident in the kitchen at her husband’s house while she was boiling milk for her child. The police report appears to be a fabricated one with numerous anomalies with the circumstances of the case which challenges the authenticity of the report.

The statement allegedly given by Sunita appeared to have been narrated in colloquial Bengali, though Sunitha was not fluent in speaking Bengali. The statement also carried her left thumb impression and was recorded on 25 July 2005, even prior to the police being informed about the incident. The postmortem report regarding Sunita’s death mentions that her body suffered from 98% burns and the only portion of her body which had her original skin retained was her abdomen. In such a circumstance how can Sunita give a left thumb impression in the statement? After suffering 98% burns it is highly improbable for the person to stay conscious, if not to give a statement in a language she was not fluent in. The report also falls short of any scientific evidence indicating the cause of injuries that led to Sunita’s death, though in the report the police rely upon the witness statement that Sunitha’s dress caught fire from an LPG stove.

In addition to the anomalies in the police report, there are many other glaring indicators that suggest that the police not only failed to water down the crime, but also helped to breach some procedural formalities that ought to have been followed in the case of the death of a person. One such example is the inquest report. In India if a person dies due to unnatural circumstances, the police is to arrange for a spot inquest, which need to be conducted by an Executive Magistrate. However, in Sunitha’s case the inquest was prepared by Mrs. Asmini Samanta, the then Secretary of the SSKM hospital. In spite of all these anomalies no further action was taken in Sunitha’s case. It appears from the police report that the police have dropped all further action in the case.

Other relevant information:

In India, the domestic law provides only two options for an aggrieved person to initiate a criminal investigation. One is by lodging a complaint with the police and the other is by approaching the court with a petition. In either case the investigation is conducted by the local police or any other branch of the law-enforcement agencies in India.  As regards to the crimes mentioned above the investigation of the crime is with the police. However, policing in India requires greasing and lubrication by way of influence or bribes for the police to investigate without which the police often write-off the case. This monopoly by the police is misused by the police to accept bribes from the accused to save them from any criminal prosecution.

In the second case mentioned it appears that the police have reluctantly registered the crime since it is a statutory requirement in domestic law to register a crime in a case when a woman die from unnatural causes within seven years of her marriage. This provision in Indian law under Section 498 A of the Indian Penal Code is to prevent the practice of Dowry. This provision of law is used in conjunction with the provisions of the Dowry Prohibition Act of India.

It is apparent that when this case is finally taken up at the court for trial the accused will be easily acquitted owing to the lack of any convincing evidence to convict them. The stage of the investigation in this crime after two years is such that nothing so far has been brought to light by the investigating officer which would fasten the possibility of a conviction of those who indirectly worked to kill Sunita. This is in spite of the continued attempt by Sunita’s relatives to push the investigating agencies to do their work properly. The AHRC has called upon the attention of the authorities in India on these issues through a recent statement issued by the AHRC. For further information please see AS-209-2006 and AS-206-2006.

India is now planning to ratify the United Nations International Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. However even if the Convention is ratified the implementation of the Convention and the specificities regarding improvement of policing depends much upon how far the basic requirements regarding policing like adherence to rules and procedures are followed by the officers.

SUGGESTED ACTION:
Please send a letter to the relevant authorities mentioned below urging for an immediate and thorough investigation into these cases in particular and also into the aspects of general policing in India so that disciplinary actions are taken against the police officers if they are found responsible for breach of duty.

To support this appeal, please click:

Sample letter:

Dear _____________,

INDIA: A failing criminal justice system betrays the poor in India, especially the women

Names of the victims:  
1) Mrs. Momena Bibi, wife of Naharul Mondal, Dayarampur village, Murshidabad district, West Bengal
2) Mrs. Sunita Shaw , wife of Binod Shaw, 95/A, Sri Arvindo Road, Golabari, Howrah district, West Bengal

Alleged perpetrators:
1) Mr. Naharul Mondal, son of Alauddin Mondal, Dayarampur village, Murshidabad district, West Bengal
2) Mr. Alauddin Mondal, Dayarampur village, Murshidabad district, West Bengal
3) Mrs. Jothsna Bibi, wife of Alauddin Mondal, Dayarampur village, Murshidabad district, West Bengal
4) Mrs. Papia Bibi, daughter of Alauddin Mondal, Dayarampur village, Murshidabad district, West Bengal
5) Mr. Bhutu Mondal, son of Jalil Mondal, Dayarampur village, Murshidabad district, West Bengal
6) Mr. Somnath Chatterjee, Officer in Charge, Jalangi police station, Murshidabad district, West Bengal
[1 to 5 above are connected with Momena’s case]

7) Mr. Vinod Shaw, 95/A, Sri Arvindo Road, Golabari, Howrah district, West Bengal
8) Mr. Chintu Shaw, 95/A, Sri Arvindo Road, Golabari, Howrah district, West Bengal
9) Mr. Ram Dulara Shaw, 95/A, Sri Arvindo Road, Golabari, Howrah district, West Bengal
10) Mrs. Ram Dulara Shaw, 95/A, Sri Arvindo Road, Golabari, Howrah district, West Bengal
11) Mr. Moinul Islam, Sub Inspector of Police, Golabari Police station, Howrah, West Bengal
[7 to 11 above are connected with Sunita’s case]

I am writing to you to express my concern about the alleged cases of breach of police duty in the cases mentioned above. I am informed that in the two cases mentioned above the police either failed to discharge their duty according to the law or were bribed by the accused so that in both cases the real accused is yet to be brought to justice.

I am informed that these two cases are examples that show the extent to which the policing in India have fallen. I am shocked to know that even a Chief Judicial Magistrate was fooled by the accused where the husband and his sister filed a false case in court for maintenance and they obtained a decree of divorce against the wife, without even the wife’s knowledge. I also informed that the Magistrate himself has acted in excess of his jurisdiction. I am aware that this is not an isolated case from West Bengal and that in the recent past hundreds of cases of similar nature were brought to your notice. I am concerned about the lack of action by the sate as well as the central government in all these cases.

I therefore urge you to take all necessary actions to ensure that this case is thoroughly investigated. I urge you to make the findings of the inquiry public and also make appropriate arrangements to ensure that the victims’ grievances are properly addressed. If the police officers are found responsible for breach of duty they must be punished.

Sincerely yours,

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PLEASE SEND YOUR LETTER TO:

1. Mr. Manmohan Singh
The Prime Minister of India
Prime Minister's Office
Room number 152, South Block
New Delhi
INDIA
Fax: 91 11 23016857

2. Mr. Buddhadeb Bhattacharjee
Chief Minister/ Minister of Home Department
Government of West Bengal
Writer's Building
Kolkata - 700 001
West Bengal
INDIA
Fax: +91 33 2214 5480/ 2214 1341
Email: cm@wb.gov.in

3. Justice Mr. Y. K. Sabharwal
The Chief Justice of India
Through the Office of the Registrar General
Supreme Court of India
1 Tilak Marg, New Delhi
INDIA
Fax: 91 11 23383792
Email: supremecourt@nic.in

4. Mr. Justice A. S. Anand
Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Fax: +91 11 2334 0016
E-mail: chairnhrc@nic.in

5. The Home Secretary
Government of West Bengal
Writers' Buildings, Kolkata - 700001
West Bengal
INDIA
Fax: +91 33 22143001
Email: sechome@wb.gov.in

6. Ms. Yakin Erturk
Special Rapporteur on Violence against Women
Room 3-042
c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9615
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR VIOLENCE AGAINST WOMEN)


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)

Document Type :
Urgent Appeal General
Document ID :
UG-016-2006
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.