Human Rights
Defenders:
Fighting An Uphill Battle
By
Human Rights Features
The
recent condemnable attack on the Chief Minister of the southern Indian
state of Andhra Pradesh, Mr. Chandrababu Naidu, by members of an armed
opposition group was followed by an unusual retaliatory action. Unusual
for a democratic State, that is.
Two men tried to
enter the home of civil rights activists K.G. Kannabiran and his wife,
Vasantha Kannabiran, on the pretext of selling furniture. Mrs. Kannabiran
asked them to leave, which they did, on a motorcycle marked 'Police'.
Four days later, Mr. Kannabiran's daughter, Kalpana, received an anonymous
telephone call threatening that her young daughters would be kidnapped.
Human rights groups
in Andhra Pradesh report that such intimidatory tactics are not unusual.
Attempts on the lives of senior government figures by extreme left-wing
groups have led to retaliatory attacks on activists in the state in
the past. Those involved in such attacks are said to either owe allegiance
to the state police or are protected by the police.
But, perhaps India
is an unusual democracy.
Human rights defenders
like Mr. Kannabiran form the backbone of what might be an energetic
and vibrant democratic polity. They work for the realisation of the
fundamental rights chapter of the Indian Constitution. The Indian State
however does not look upon such activists as partners in the democratic
process. It instead subjects them to a suspicious, often hostile glare,
regarding them as threats to "national interest". As a result,
human rights activists - taken to include individual activists, organisations,
lawyers, journalists, and physicians, among others - find themselves
at considerable risk when they take on issues deemed sensitive by the
government.
The entire range
of violations that human rights defenders attempt to address is often
directed at the defenders themselves. Thus, torture, preventive illegal
or arbitrary detention, disappearances, ill-treatment, the use of excessive
force, and the violation of due process rights are used by State actors
to blunt the efforts of human rights defenders. State actors include,
among others, police, military personnel, paramilitary forces and intelligence
officials. In addition to violating the law to deter defenders, State
actors often also misuse the law. Preventive detention laws as well
as sections in the Criminal Procedure Code and the Indian Penal Code
that allow for preventive detention are applied arbitrarily to harass,
intimidate, or obstruct peaceful protests by defenders.
The 1996 abduction
and murder of Jalil Andrabi is a classic case. Mr. Andrabi, who had
been investigating and pursuing cases of human rights violations in
Jammu and Kashmir, disappeared after he was taken away by members of
the Rashtriya Rifles, a paramilitary group. His body, with the hands
tied, was found 19 days later in a river. The trial of the army major,
identified by a special investigation team as prima facie responsible
for the murder, is yet to conclude.
The case of Jaswant
Singh Khalra is almost similar. A lawyer investigating disappearances
and illegal cremations carried out by security forces in the state of
Punjab during an insurgency in the 1980s, Mr. Khalra himself "disappeared"
in 1995. Supreme Court proceedings into Khalra's investigations as well
as his own disappearance are continuing. His fate is still unknown.
A number of other
attacks on human rights defenders have involved intimidation, harassment
and the obstruction of peaceful protests. Activists protesting the construction
of the series of dams on the Narmada river have been baton-charged,
detained and even fired upon. Activists working with tribal people in
the forest areas have faced arrests, threats and intimidation.
The space for human
rights defenders to operate is shrinking further. The restrictive provisions
of the Foreign Contribution Regulation Act (FCRA), the requirement of
clearance from the Home Ministry before holding meetings involving foreign
participants, constant surveillance by intelligence agencies - all point
to increasing paranoia about the legitimate work of human rights defenders.
The FCRA requires
all Indian organisations and individuals that seek to receive foreign
contributions to receive clearance first from the Ministry of Home Affairs,
in the form of either registration or prior permission. However, it
is the highly politicised Home Ministry that administers these laws,
rather than the Finance Ministry. A number of organisations have either
had their applications for FCRA registration pending or have been turned
down after long delays. Amnesty International's Indian section has been
unable to obtain prior permission under FCRA and is facing a serious
resource crunch, forcing it to scale down its activities.
Non-governmental
organisations (NGOs) must be held accountable for financial or other
wrongdoing. However, normal regulatory and criminal justice procedures
are sufficient to carry out this task. NGOs should be subjected to the
same financial restrictions and reporting requirements that apply to
other bodies.
The Government of
India also attempts to curtail the freedom of assembly and association.
From mid-1999, NGOs organising international conferences in India have
required prior permission from the Ministry of Home Affairs and other
relevant ministries. The clearance requirement is not pursuant to any
law, rule or guidelines, it is simply the new practice of the Government
of India. The clearance requirement is not manifest as a written policy
with established procedures. It functions at the whim and fancy of the
Government of India. This ad hoc operation places NGOs at a distinct
disadvantage in its dealing with the Government of India as the procedure
lacks transparency. The clearance requirement procedures are clearly
prone to arbitrary use and abuse in the absence of established policies
and procedures.
Human rights defenders
in internal conflict areas face a two-pronged threat - from State security
forces on the one hand and armed opposition groups on the other. NGOs
as well as individual activists such as lawyers, medical personnel and
mediapersons are under severe pressure to take sides and act accordingly.
Mediapersons in Jammu and Kashmir, for example, have been known to receive
threats from armed opposition groups. Individual activists and organisations
in Northeast India face similar pressures.
While defenders
in internal conflict areas may be more prone to attacks and harassment
by non-State actors, the skewed socio-economic balance in India means
that defenders elsewhere also face the disapproval - and the strong-arm
tactics - of members of dominant social and economic groups, often in
concert with the authorities.
In June 2002, Navleen
Kumar, who had helped a number of tribal families win back the land
wrested from them 25 years ago, was brutally murdered. A trained social
worker, Ms. Kumar had taken up the cause of the Adivasis, indigenous
people living at the edge of the city of Mumbai, whose land had been
illegally acquired from them by local politicians, bureaucrats and builders
with the connivance of the police. Arrests were made in connection with
the crime, but the police is yet to present evidence against the accused.
Right-wing religious
groups are another force defenders must contend with. Christian organisation
involved in providing education, health and other services to underprivileged
communities face threats, harassment and, often, violent attacks by
Hindu right-wing organisations. The Christian groups are accused of
proselytisation and of attempting to "destroy" Hindu culture
and religion.
In February 2000,
social reformist and civil liberties activist, Mr. Asghar Ali Engineer,
was brutally assaulted allegedly by conservative elements from within
his own Dawoodi Bohra community. This was not the first attempt at intimidating
Mr. Engineer, who advocates, among other things, reforms in the Bohra
community, which is a small sect of Ismaili Muslims following the Sunni
tradition.
The compelling force
of multinationals comes into play when cudgels are raised on behalf
of those resisting displacement, protesting the violation of labour
laws, or simply demanding the protection of economic, social or cultural
rights. In 1997, those leading protests against the Dabhol power project
- undertaken by the now defunct Enron Corp- in the western state of
Maharashtra were often detained, served externment orders, and also
beaten up by police. Provisions of various laws were used to obstruct
demonstrations and to prohibit them from entering areas where opposition
to the project were most intense.
Not only is the
State obliged to allow space for democratic dissent and legitimate human
rights activity, it is also required to protect human rights defenders
when their rights are violated by other forces. This requires State
agencies such as the police, the armed forces and the judiciary to be
educated about the protection of human rights and the limits of their
coercive powers.
State institutions
such as the National Human Rights Commission of India (NHRC) have a
special responsibility to protect human rights defenders. Under the
Protection of Human Rights Act, the NHRC is required to "encourage
the efforts of non-governmental organisations and institutions working
in the field of human rights." Further, elucidating its relations
with NGOs, the NHRC has stated that "[n]o duty is more essential
for the Commission if it is to fulfill its responsibilities, for NGOs
are its natural allies, sternest critics and indispensable partners."
The NHRC has done
little so far to address the risks and threats faced by human rights
defenders. It has also remained silent on the blatantly political use
of the FCRA by the Home Ministry.
The NHRC needs to
regard its role in relation to human rights defenders in the widest
sense possible. It must intensify the process of consultation with individual
activists and NGOs with particular regard to their needs and the risks
they face. Finally, all State agencies must be sensitised to the work
of human rights defenders. The protection and promotion of human rights
is not an 'anti-national' project; rather, it is aimed at strengthening
democracy. It must be regarded as such.
HUMAN RIGHTS FEATURES
(Voice of the Asia-Pacific Human Rights Network)
(A joint initiative of SAHRDC and HRDC)
B-6/6 Safdarjung Enclave Extension, New Delhi 110 029, India.
Tel: +91-11-2619 2717, 2619 2706, 2619 1120; Fax: 2619 1120
E-mail: [email protected]