Monday, August 22, 2011

Comment on Lokpal Bill 2011(PVCHR submission to standing committee)

---------- Forwarded message ----------
From: PVCHR ED <>
Date: Mon, Aug 22, 2011 at 10:43 PM
Subject: Comment on Lokpal Bill 2011

Dear K.P.Singh,

Greetings from PVCHR.

It has been 64 years since India – the largest democracy in the world – attained independence. Yet, justice for all is still a far cry. Money and muscle power, together with political string pulling, often result in denial of justice for the hapless, the 'have-nots' ravaged by poverty and illiteracy.

Ironically, even after having shed the colonial yoke, its legacy continues in the administrative framework of our independent India. Atrocities, extortion, fake encounters, refusal to register complaints against the well-heeled, arbitrary arrests on false charges, illegal detention and custodial deaths are in commonplace.

In the absence of a modern social audit system, the keepers of the law, who normally perform under a demanding environment, often unleash a 'police raj', especially in rural India.

A crippled National Human Rights Commission (NHRC) and its state subsidiaries with limited recommendatory control and a dysfunctional Legal Aid System depict a gloomy picture indeed. In a system of defunct legal procedures, the economically weaker and socially backward sections often fall victim, languishing in legal tangles where only money talks. Official reports show the impact of 100 days' guaranteed work at Rs 100 (£1.43) a day under the National Rural Employment Guarantee Act (NREGA) is suspect.

The Scheduled Castes, indigenous groups and other backward classes face atrocities and discrimination in all spheres of life. The data collection of 123 survivors in the pilot project under RCT and PVCHR on testimonial therapy, in which 89 per cent of survivors belong to Scheduled Castes, indigenous groups and other backward classes (OBC) verify this. The general impression is that Dalits and tribals not only do menial work, they also form the major source of churning out anti-socials and criminals. Unfortunately, a culture of silence has permeated the society historically. The privileged class is conveniently convinced that they cannot be wrong.

That is why one finds most of the custodial torture, violence and deaths that are committed against marginalised and deprived castes going unrecorded. Many Dalits are tortured and subjected to humiliation like being garlanded with shoes, their faces blackened or being forced to ride an ass.

When a person from an upper caste commits any crime, punishment may be meted out after a trial. In the case of the lower castes, however, the entire community is punished, mostly without any trial. This punishment is doled out by the higher castes, with implicit support from the police.

It is very common to find the police unwilling to register cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This legislation, which is meant to ensure proper investigation by a high-ranking police official within 30 days, is rarely adhered to. As a consequence, the accused often moves out of jail with a lesser sentence.

According to Justice K Ramaswamy, former Supreme Court judge and member of National Human Rights Commission, police register complaints as 'code offences' instead of 'act offences' so that upper caste perpetrators do not face severe sentences. Different human rights institutions like NHRC and National Commission on Scheduled Castes are trying to combat these 'misdeeds'.

The reluctance on part of the police to register and investigate crimes makes the victims much more vulnerable. The police usually jump to the conclusion that a poor victim will be unable to pay bribes or fight the case for a prolonged period. By this time, the crime evidence is destroyed or has 'gone cold', ultimately resulting in a lost battle. Crime victims who do not have the clout of money are unlikely to be able to get local influential figures to intervene on their behalf, while their perpetrator may have police protection due to political connections.

The SC/ST (Prevention of Atrocities) Act brought some intensive recommendations before parliamentarians through involvement of its 20 initiating members. Recent developments include the United Nations Human Rights Council's expected recognition of India's caste system as a human rights abuse being suffered by 65 million 'untouchables' or 'Dalits' who carry out most of the menial and degrading work. Recommendations and charters have already been submitted to the government for implementation.

Most women in India suffer directly or indirectly from the existing norms of a patriarchal society. They become either primary or secondary victims and face all kinds of torture. In a recent case of illegal detention and torture, the wife of Vinod
Kumar Gupta in Uttar Pradesh endured double tier psychological trauma. On the basis of a complaint lodged by Vicky Gupta, an influential shop-owner, the police contingent in civil dress barged into the house of Vinod Kumar Gupta in February 2010 and forcefully detained the entire family including Vinod's aged father Ram Lal Gupta and ailing mother Gayatri Devi. Vinod's wife was left alone in the house, only to be subjected to severe sexual assault by the police while the family
members were languishing in various police outposts viz.Cholapur, Phulpur and Sindhaura, near Varanasi, without any case being registered against them. Coming back home after nine days of torment in custody, where the aged Ram Lal Gupta was made to drink his own urine, the family found Vinod's wife so traumatised that she was unable to speak.

In the RCT-PVCHR collaborative study, it appears that 27.64 per cent of the women facing torture and organised violence were psychologically supported through testimonial therapy.

All these are indicative of the extent of the problems and are sufficient to establish that initiatives in India lack a gender perspective. Dalits are considered untouchables in Indian society, yet rape of Dalit women is not considered a taboo by the upper castes. In fact, the latter uses rape as an instrument of continuous subjugation.

Dalit women bear a triple burden: discrimination and exploitation based on caste, class and gender. Women are also victims of violence by security forces and armed opposition groups, traditional justice delivery system like 'caste panchayat' (illegal body of caste-based system in villages) and cruel cultural practices like sati, honour killing and witch-hunts.

Discriminatory attitudes and lack of sensitisation to the dynamics of crimes involving sexual or domestic violence leave victims without critical police aid or redress to which they are entitled.

The police attitude that domestic violence is primarily of a private nature is the most unfortunate trivialisation of a grave social evil, that too, when the police are empowered to arrest the perpetrator without any warrant. The Protection of Women from Domestic Violence Act, 2005, was enacted to augment women's immediate protection from violence through emergency relief, including access to temporary protection order and domestic violence shelters.

In reality, the situation, however, depicts a complete reversal. The lawyers and activists say that due to poor implementation of the law, women facing imminent and life threatening violence remains hostage to police attitude. This attitude of the police perhaps stems from its traditional legacy of 'rule of lords', the same as its colonial masters. This is the common bond between the police and the feudal lords in India, which do not believe in the concept of welfare state.

The culture of impunity is the biggest threat to the rule of law in India. Victims are often threatened to make submission or give statements before the magistrate so that the case weakens and nothing happens to the offenders. If at all the department or the court decides to take cognisance of the statement of the victim and orders an inquiry against the accused police personnel, it directs the superior officer to undertake an investigation. It does this knowing fully well that both work in the same office and the higher officer is familiar with the movements and intentions of his subordinates. In the absence of evidence or weak evidence on cases like custodial torture, encounter or disappearances, the court relies more on
the police report, resulting in acquittal in most instances.

The insensitivity of the judiciary and human rights institutions make them extremely culpable in contributing to the 'impunity 'that persists and aggravates the problem. Evidence indicates that the poor are increasingly being marginalised. The limitation of the enforceable power of the National Human Rights Commission, India, has been a matter of concern for everyone.

'Legal' impunity is embedded in provisions like Sections 197 and 132 of the Indian Criminal Procedure Code (CrPC), 1973 as well as Section 6 of the Armed Forces (Special Powers) Act (AFSPA),1958.

In fact, almost every section of the Criminal Procedure Code (CrPC), 1973 provides some kind of impunity. For example, Section 46 empowers the police to shoot to kill any accused charged with a crime punishable by death if that accused person attempts to escape from police custody. The police forces of  India Andhra Pradesh and Uttar Pradesh have made extensive use of this section to cover up fake encounters, killing hundreds of hapless detainees.

Experience shows that the government habitually denies sanction for prosecution of members of the police and security forces whenever any 'private criminal complaint' is filed against them. In many cases, the police routinely refuse to record the First Information Report (FIR) against misdeeds of police personnel. In cases where FIRs are lodged following sustained campaigns by the families of victims and human rights defenders, these are never properly investigated.
In the rarest of rare cases, under immense pressure from the public, the government ordered investigations by agencies of state governments or that of the Centre into complaints against police or security personnel. Unfortunately, even when such investigations established prima facie cases against the accused police or security personnel, the guilty persons went unpunished as bureaucrats in the ministries of home and defence denied sanction for prosecution of the guilty.

This practice has divided the citizens of India into two categories – one ruled by law and who can be punished by the law courts for their misdeeds. The other comprises those who are protected and cannot be punished by law courts unless their employer, the State, sanctions their prosecution. The freedom enjoyed by the killers of the Dalits and minorities – be it the Sikhs,Muslims, Christians and Buddhists – whether it was in Parasbigha, Bhagalpur, Delhi, Kanpur, Maliana, Hasimpura,Meerut, Mumbai, Ahmedabad, Baroda or Godhra – bear testimony to this double standard in our administrative system.

 PVCHR wants a system with amendment in Lokpal bill as well as all existing laws to fight back impunity as biggest corruption  in India .I am also giving the link of ICAC of Hong Kong( as one of the best system to curb down the corruption and establishment of  rule of law based on justice and secularism.

With best wishes,

Lenin Raghuvanshi
Secretary General,PVCHR
2010 Weimar Human Rights Awardee
2007 Gwangju Human Rights Awardee
SA 4/2 A, Daulatpur, Varanasi-221002,UP
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