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UPDATE (India): Uttar Pradesh state human rights cover-up human rights abuse of state officers

November 15, 2006

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL
ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Update on Urgent Appeal

15 November, 2006

[RE: UP-122-2006: INDIA: District Magistrate orders the arrest of a human rights defender for the second time; UA-156-2006: INDIA: District Magistrate orders the arrest of a human rights defender; AHRC-OL-048-2006: INDIA: Inquiring officer of Uttar Pradesh Human Rights Commission must inquire impartially into cases rather than trying to broker for respondents]
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UP-209-2006: INDIA: Uttar Pradesh state human rights cover-up human rights abuse of state officers

INDIA: Misuse of authority; lack of transparency; impunity; failure of rule of law
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Dear friends

The Asian Human Rights Commission (AHRC) has received a communication dated 6 November 2006 from the Uttar Pradesh State Human Rights Commission informing the AHRC that one of its complaints to the Commission [Case number 2603(65)/2006-2007] has been dismissed by the Commission. The reason for dismissal is because the Commission is of the opinion that the complaint filed by the AHRC was based on “wrong information” and that “the charges have not been proved”. The AHRC however feels that the Commission has not thoroughly looked into the facts of the case and has come to a wrong conclusion regarding this case. Local human rights groups also allege that the act of the Commission is to cover-up the wrongs of the government officers.

Facts of the case:

Mr. Santhosh Patel, a staff of the Uttar Pradesh based People’s Vigilance Committee for Human Rights [PVCHR] was arrested by the local police under instructions from the District Magistrate of Varanasi on 10 May 2006. Patel was meeting the District Magistrate Mr. Rajiv Agarwal to present cases of corruption related to food distribution through the public distribution system in Belwa village of Varanasi district in Uttar Pradesh. To silence Patel, the Magistrate ordered Patel to be arrested and detained at Shivpur police station. After the arrest Dr. Lenin Raghuvansi, the Secretary of PVCHR met with the Magistrate to release Patel. During the meeting the Magistrate accused that the PVCHR and the activists associated with PVCHR has brought shame to the country by reporting cases of starvation deaths. The Magistrate also complained that reporting of such cases from his jurisdiction will tarnish his image and reduce the scope for his promotion.

However, Patel was released later, only to be rearrested on a subsequent date on similar settings on 7 June 2006. This time too the arrest was ordered by the District Magistrate when Patel was trying to present the complaints of poor and marginalised Daliths in Belwa village. Both these cases had attracted international and local media attention. The local media like the ‘Amar Ujala’, ‘Hindustan’ and ‘Dainik Jagaran’ had reported the first incident on 11 May 2006. The details of both these cases are available at UA-156-2006 and UP-122-2006. Regarding the two incidents the Shivpur police station has made entries at the police station for detaining Patel. However, it appears that for the Uttar Pradesh State Human Rights Commission these facts were not true enough to take any further action in this case.

Upon receipt of a complaint regarding the incident, an inquiry officer was appointed by the Uttar Pradesh State Human Rights Commission. However the appointment of the officer was only made known to the complainant in this case, the AHRC, when the inquiry officer approached the victim asking him to compromise the matter. The officer requested the victim and the other staff at the PVCHR to withdraw the complaint. An open letter addressed to the Chairperson of the Uttar Pradesh State Human Rights Commission Mr. A. P. Misra was issued by the AHRC on 15 August 2006. In this letter, the AHRC had specifically brought to the notice of the Chairperson that the attempt of the inquiry officer is to water down the case and to see to it that no action is initiated against the magistrate who ordered the arrest.

The Protection of Human Rights Act (1993) of India mandates certain procedures to be adopted by the Human Rights Commissions in India when inquiring into complaints. This includes an inquiry into the case by the Commission by an officer appointed by the Commission.

Section 14 (2) of the Act mandates “[f]or the purpose of investigating into any matter pertaining to an inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission:
(a) summon and enforce the attendance of any person and examine him;
(b) require the discovery and production of any document; and
(c) requisition any public record or copy thereof from any office.”

Section 14 (4) of the Act provides “[t]he officer or agency whose services are utilised under sub-section (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the commission within such period as may be specified by the commission in this behalf.” Section 14 (5) of the Act says “[t]he commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub-section (4) and for this purpose the commission make such inquiry (including examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.”

The Protection of Human Rights Act (1993) also reiterates that for the purpose of procedures to be followed during inquiries and compliance of orders for inquiries the Human Rights Commissions in India are to be considered as courts. This proceeds to the legal presumption that the procedures to be followed by the Commission calls for the same transparency and accountability of any civilian court. Even without this fiction of law from being applied, the Human Rights Commission being an adjudicating body constituted under a law, occupying a public office, the proceedings adopted by such a body must be transparent, open and meet the standards of fair trail. A complete text of the Protection of Human Rights Act (1993) is available at the Asian Legal Resource Centre website.

Regarding the case at hand the only communication received by the AHRC regarding its complaint is the final order of the Commission informing the AHRC that the complaint has been dismissed by the Commission. The AHRC was not informed regarding the progress of the inquiry by the State Human Rights Commission into this case. Neither was the AHRC asked to submit any documents to the Commission. The AHRC is also not aware when was the report of the inquiring officer submitted to the State Human Rights Commission. The AHRC is not aware what documents and other records the inquiring officer inspected to furnish his report to the Commission. A copy of the report, if there is any, was also not made available to the AHRC for its comments. However, the order of the Commission mentions that it was ‘proved’ that the complaint filed by the AHRC was on wrong information.

The complaint in this case was not regarding a human rights abuse committed by a low-ranking civil servant. This is an exceptional case where an executive officer enjoying quasi-judicial powers misused his authority to violate human rights and ordered arbitrary arrest of a human rights activist. The nature of the act itself calls for a cautious and a deep probe into the incident. While the Commission was inquiring into the first case of arrest and detention, the AHRC had brought to the notice of the Commission the second incident, that too within a span of 30 days of the first complaint. In spite of this the Commission has dealt with the complaint in the most casual manner, without an iota of transparency, which must raise concerns regarding the function of the Commission as regards to the process and procedure it follows in inquiring into cases of human rights violations. The Protection of Human Rights Act (1993) does not provide for any appeal to be filed against the order of the State Human Rights Commission. The only provision available for the AHRC or the victim Mr. Patel is to file a writ petition before the High Court of Uttar Pradesh.

The constitution of Human Rights Commissions in India was to provide a forum for the ordinary person to lodge complaints regarding human rights violations in India. However, as evident from this case, the functioning of these Commissions in India is deplorable and often lacks transparency and clarity. Many of the State Human Rights Commissions are nonfunctional. One such example is the Kerala State Human Rights Commission.

The procedure adopted by the Uttar Pradesh State Human Rights Commission raise the following issues:

(1) Once a complaint is lodged at the Commission are there any clearly outlined procedures adopted by the Commission in inquiring into the complaint?
(2) If an inquiring officer is appointed to inquire into a case by the Commission, will the Commission serve notice to both the complainant and the respondent regarding the details of the inquiring officer?
(3) Whether the Commission decides the case exclusively upon the inquiry report of the inquiring officer or after calling upon both parties to submit their case before the Commission in an open proceeding?
(4) Does the Uttar Pradesh State Human Rights Commission follow fair trial procedures and if so how these principles were applied in the inquiry into this case?
(5) What is the detailed order of the Uttar Pradesh State Human Rights Commission in case number 2603(65)/2006-2007? The order made by the Uttar Pradesh State Human Rights Commission in this case mentions that the ‘charges have not been proved in the inquiry’. In that case is the Commission willing to make public what proof has the Commission relied upon to dismiss the case other than an alleged inquiry conducted by its official, of which the complainant was not even served with a copy?
(6) Being a public body is it not fair for the Uttar Pradesh State Human Rights Commission to make public the inquiry report of its inquiring officer and the finding the Commission has come to and the proof the Commission has relied upon to come to the conclusion?

SUGGESTED ACTION:

Please write to the Uttar Pradesh State Human Rights Commission asking the Commission the above questions and requesting the Commission to make public its finding and the reasons for arriving at it in the above case. The AHRC is writing a separate letter expressing its concern in this case to the office of the Special Representative of the United Nations Secretary-General on the situation of human rights defenders Ms. Hina Jilani.

To support this appeal, please click:

Sample letter:

Dear __________,

INDIA:  Will the Uttar Pradesh State Human Rights Commission make public the reasons for dismissing case number 2603(65)/2006-2007?

I am writing to you to express my concern about the dismissal of the case sited above by the Uttar Pradesh State Human Rights Commission. I am informed that this case which called in international and national media attention was dismissed by the Commission vide its order dated 6 November 2006. While dismissing the case, the Commission has only mentioned that “[t]he charges have not been proved in the inquiry, and it was found that wrong information was given to the Asian Human Rights Commission”.

I am informed that the Asian Human Rights Commission, the complainant in the case, was not provided with a copy of the report filed by the inquiring officer. I am also informed that the inquiring officer appointed by the Uttar Pradesh State Human Rights Commission was in fact trying to compromise the matter than from impartially inquiring into the case against which the Asian Human Rights Commission had issued an open letter addressed to the Chairperson of the Commission on 15 August 2006.

I am aware that the Protection of Human Rights Act (1993) provides for transparency, accountability and fair trail procedures to be followed while inquiring into cases of human rights cases. However, I am afraid that the Uttar Pradesh State Human Rights Commission has failed to uphold any of these in this case. I am also informed that the Asian Human Rights Commission is writing a separate letter expressing its concern in this case to the office of the Special Representative of the United Nations Secretary-General on the situation of human rights defenders Ms. Hina Jilani.

In these circumstances I wish to ask the following questions to the Uttar Pradesh State Human Rights Commission.

(1) Once a complaint is lodged at the Commission are there any clearly outlined procedures adopted by the Commission in inquiring into the complaint?
(2) If an inquiring officer is appointed to inquire into a case by the Commission, will the Commission serve notice to both the complainant and the respondent regarding the details of the inquiring officer?
(3) Whether the Commission decides the case exclusively upon the inquiry report of the inquiring officer or after calling upon both parties to submit their case before the Commission in an open proceeding?
(4) Does the Uttar Pradesh State Human Rights Commission follow fair trial procedures and if so how these principles were applied in the inquiry into this case?
(5) What is the detailed order of the Uttar Pradesh State Human Rights Commission in case number 2603(65)/2006-2007? The order made by the Uttar Pradesh State Human Rights Commission in this case mentions that the ‘charges have not been proved in the inquiry’. In that case is the Commission willing to make public what proof has the Commission relied upon to dismiss the case other than an alleged inquiry conducted by its official, of which the complainant was not even served with a copy?
(6) Being a public body is it not fair for the Uttar Pradesh State Human Rights Commission to make public the inquiry report of its inquiring officer and the finding the Commission has come to and the proof the Commission has relied upon to come to the conclusion?
Sincerely yours,

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PLEASE SEND YOUR LETTER TO:

1. Mr. Manmohan Singh
Prime Minister of India
Prime Minister's Office
Room number 152, South Block
New Delhi
INDIA
Fax: +91 11 23016857
Email: pmosb@pmo.nic.in

2. Mr. A.P. Mishra
Chairperson
Uttar Pradesh Human Rights Commission
6-A Kalidass Marg
Lucknow,
Uttar Pradesh
INDIA
Fax: +91 52 2272 6743
Email: uphrc@sancharnet.net

3. The Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: +91 11 23384863
Email: chairnhrc@nic.in

4. Mr. Justice Y. K. Sabharwal
Chief Justice of India
The Supreme Court of India
1, Thilak Marg, New Delhi 110001
INDIA
Fax: +91 11 23383792
Email: supremecourt@nic.in

5. The Chief Justice, Allahabad High Court
1, Lal Bahadur Shastri Marg, Allahabad
11, Kalidas Marg, Lucknow
INDIA
Fax: +91 532 2420344 b
Email: alldhc@sancharnet.in

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


Document Type :
Urgent Appeal Update
Document ID :
UP-209-2006
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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.