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UPDATE (India): Delay in forwarding court records adds to a ten year wait for justice

October 7, 2004

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Update on Urgent Appeal
8 October 2004

(UA-103-2004: INDIA: Father dies after ten years of waiting for justice for his son issued on 18 August 2004)
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UP-53-2004: INDIA: Delay in forwarding court records adds to a ten year wait for justice

INDIA: Rule of law; Court delays
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Dear friends,

It has come to the attention of the Asian Human Rights Commission (AHRC) that the Lower Court Records required to prosecute police officers allegedly responsible for the forced disappearance of Bhikari Paswan in 1993, have been held at the Calcutta High Court for some 72 days now.?The Calcutta High Court granted leave for the prosecution of the alleged perpetrators of this crime on 28 July 2004.?

According to our partner organisation in West Bengal, Manabadhikar Suraksha Mancha (MASUM), the records which were previously provided to the High Court, have yet to be forwarded to the Alipur Trial Court, where the matter is due to be heard.?In response to this delay, MASUM organised a demonstration in front of the court and submitted a memorandum to the VIth Additional District Judges Court and the Sessions Judges Court on September 20, requesting for a speedy trial and for the cancellation of bail for the four accused. Notwithstanding MASUM's efforts, the records remain at the High Court, despite the distance from the High Court to the Trial Court being no greater than 5 kilometres.?The delay in forwarding these records is adding to the already significantly prolonged duration of this trial.  ?

AHRC is gravely concerned by this and many other cases throughout India that are wilfully neglected or obstructed while witnesses and material evidence are lost or withheld. The practices contributing to this state of affairs amount to a gross violation of human rights, yet they are treated as if a matter of mere administrative or bureaucratic inefficiency, rather than one of ineptitude and corruption.?The Indian judicial system need not be reminded of its obligations under the International Covenant on Civil and Political Rights.?As a signatory to this law, and with special reference to Article 14, everyone shall be entitled to 'trial without undue delay.'?The 72 day delay in forwarding Bhikari's court records to the Trial Court, and the general procedural delays throughout the entire case, are clear violations of this law.

Your urgent action is needed to pressure the High Court to forward the relevant records concerning Bhikari's case to the Alipur Trial Court.?In doing so, this will ensure that those responsible for his disappearance are prosecuted and punished and that compensation and assistance is given to the victim's family.

BRIEF REMINDER:

Bhikari Paswan, a jute mill worker, was taken away by Additional Superintendent of Police (ASP) Harman Preet Singh and three of his men in the early hours of 31 October 1993 - reportedly to Telinipara police outpost, where they tortured him to death. Bhikari was never seen again, nor was his body found.

As far back as 1995 senior police investigators concluded that ASP Singh and his subordinates took Bhikari from his house that night in October; there was no question about the complicity of state agents. The questions that remained related only to what happened afterwards. However, the Indian judicial system responded to the urgent needs of the case by entangling it in technicalities, one hearing after another, before delivering it to the doorstep of the state's high court. It lay there for years, through disinterest and the machinations of the perpetrators, who have since been promoted to positions of authority, rather than being suspended and properly investigated.

The efforts of human rights advocates and Bhikari's family allowed the case to finally see the light of day in October 2003, when a special bench was called to consider it "immediately". Nine months later, on 28 July 2004, the bench has held that government permission is not required to prosecute Harman Preet Singh, now a Deputy Inspector General, as kidnapping was not among his official duties as a police officer. Thus it has taken the Indian judiciary ten years to decide a matter that any informed person would have resolved in a few minutes. Tragically, Bhikari's father Lakhichand Paswan, a chief witness in the case, died the following day after struggling to obtain justice for so long. He had been in a coma since shortly before the court gave its decision.

If you want to see entire contents of our previous urgent appeal regarding this case, please visit: UA-103-2004: Father dies after ten years of waiting for justice for his son?lt;/font>

SUGGESTED ACTION:
Please send a fax, letter or email to the following addresses expressing your serious concern in this matter.

Sample letter:

Dear

RE: Delay in forwarding court records adds to a ten year wait for justice

I am writing to you regarding the delay by the Calcutta High Court in forwarding to the Alipur Trial Court, records required for the case relating to the disappearance of Bhikari Paswan. The Calcutta High Court granted leave for the prosecution of the alleged perpetrators of this crime on 28 July 2004.?

According to our partner organisating in West Bengal, Manabadhikar Suraksha Mancha (MASUM), the records which were previously provided to the High Court, have yet to be forwarded to the Alipur Trial Court, where the matter is due to be heard.?In response to this delay, MASUM organised a demonstration in front of the court and submitted a memorandum to the VIth Additional District Judges Court and the Sessions Judges Court on September 20, requesting for a speedy trial and for the cancellation of bail for the four accused. Notwithstanding MASUM's efforts, the records remain at the High Court, despite the distance from the High Court to the Trial Court being no greater than 5 kilometres.?The delay in forwarding these records is adding to the already significantly prolonged duration of this trial.  ?

As you must be aware, this trial and the struggle to seek justice for Bhikari, has stretched to a period of ten years.?During this period Bhikari's family has endured extremely difficult times, with his children being cared for by their destitute grandmother and family members suffering from hunger and sickness.?Furthermore, Bhikari's father, Lakhichand Paswan, a chief witness in this case, died only a day after the High Court's decision to prosecute the perpetrators in this case.?After a ten year fight to seek justice for his son, Lakhichand will never know what officially happened to his son, nor if those responsible for his son's death will be brought to justice for their crime.?
?lt;br />As a duty to India's ratification of the International Covenant on Civil and Political Rights, and to the human rights of Bhikari Paswan, I urge you intervene and

a Take steps to ensure that the records obtain by the Calcutta High Court are immediately forwarded to the Alipur Trial Court.

b. Direct strong attention towards this case, to ensure that the hearings now proceed without any further delays.

c. Direct strong attention to the memorandum forwarded by MASUM, requesting speedy trial and the cancellation of bail for the four accused.

d. Conduct an enquiry into why the courts have been unable to reach a satisfactory conclusion within a reasonable period of time as well as expose and loudly criticise such delays that make a mockery of all claims to a great tradition of judicial independence in India.

e. Pressure the Government of India to ratify the First Optional Protocol of the ICCPR and the UN Convention against Torture and adhere strictly to their standards.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Justice Ajoy Nath Roy
Acting Chief Justice
Calcutta High Court
Kolkata
West Bengal
INDIA

2. Justice Shyamal Kumar Sen
Chairman
West Bengal Human Rights Commission
Bhavani Bhavan, Alipur, Kolkata-27
West Bengal
INDIA
Fax: +91-33-2479 9633
Email: wbhrc@cal3.vsnl.net.in

3. Justice A S Anand
National Human Rights Commission of India
Sardar Patel Bhawan
Sansad Marg, New Delhi - 110 001
INDIA
Tel: +91 11 2 334 0891 / 2334 7065
Fax: +91 11 2 334 0016
E-Mail: mailto:chairnhrc@nic.in

PLEASE SEND COPIES TO:

1. Shri. A.P.J. Abdul Kalam
President of India
Rashtrapathi Bhavan
New Delhi -110001
INIDA
Tel: +91 11 23015321
Fax: + 91 11 23017290 / 23017824
E-mail: presidentofindia@rb.nic.in

2. Mr. Buddhadeb Bhattacharyya
Chief Minister and Home Minister of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 5480

3. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Att: Sonia Cronin
Room: 3-060
C/o OHCHR-UNOG 1211 Geneva 10, Switzerland
Tel: +41 22 917 9160
Fax: +41 22 917 9006

4. Mr. Philip Alston
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
Att: Lydie Ventre
Room 3-016, c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9155
Fax: +41 22 917 9006 (general)
E-mail: lventre@ohchr.org

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission
Document Type :
Urgent Appeal Update
Document ID :
UP-53-2004
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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.