Comment

The ‘missing’ link

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THE Right to Information in Indian jurisprudence has largely evolved as a concomitant of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. Remarking on the significance of the right to information the Supreme Court observed: ‘One-sided information, disinformation, misinformation, and non-information all equally create an uninformed citizenry which makes democracy a farce where the medium of information is monopolised either by a partisan central authority, by private individuals or by oligarchic organisations...’1 In recent years the initiative for the right to information has come from groups and communities demanding from the government, its agencies and departments, disclosure about their activities and more specifically the allocation and utilisation of public funds and public goods. The right to information was thus closely linked to issues of good governance and transparency, essential components for a vibrant democracy. As the Supreme Court has held, in modern constitutional democracies, it is axiomatic that the citizens have a right to know about the affairs of the government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare.2

However, the sine qua non of a vibrant democracy is the assurance of security of the life and liberty of all its citizens. Since independence, the Indian nation state has been challenged by political movements for identity, autonomy, secession, dignity and justice. These struggles have been waged in the northeastern states of Assam, Nagaland, Manipur, Mizoram; in Kashmir since 1989, Punjab in the mid-eighties and Andhra Pradesh. The Indian state has responded by introducing harsh measures, curtailing basic rights and fundamental freedoms of citizens. Rights and freedoms are placed in abeyance as the army, para-military, police or any other security force armed with arbitrary and excessive powers unleash the might of the state. In this context the right to information is inextricably linked with the fundamental right to life and liberty guaranteed by Article 21 of the Constitution.

All these regions have reported a high incidence of ‘enforced disappearance’ of human rights activists, journalists, farmers, workers and other ordinary men, women and even children. The ‘disappeared’, in international law, are people who have been taken into custody by agents of the state, yet whose whereabouts and fate are concealed, and whose custody is denied. These disappearances are the starting point of illegal detention, torture and custodial killings. According to the Report of the UN Working Group on Enforced Disappearances, this practice has expanded to 63 countries across the world ranging from Argentina, Chile, Brazil, Egypt, Sudan, Ethiopia, South Africa, Iraq, Sri Lanka, Indonesia, former Yugoslavia, Mexico and India.

‘Some men arrive. They force their way into a family’s home, rich or poor, house, hovel or hut, in a city or in a village, anywhere. They come at any time of the day or night, usually in plain clothes, sometimes in uniform, always carrying weapons. Giving no reasons, producing no arrest warrant, frequently without saying who they are or on whose authority they are acting, they drag off one or more members of the family towards a car, using violence in the process if necessary.’3 This is often the first act in the drama of an enforced or involuntary disappearance that is today acknowledged as a crime against humanity.

These disappearances shatter and disrupt entire families leaving them interminably in despair and suffering and often economically destitute. Family members run from pillar to post, for years scouring for any crumb of information about their loved ones. The victims are cut off from the world and placed outside the protection of the law, often subjected to torture, and many are never seen again, missing. Their relatives are kept in the dark about their whereabouts or condition, driven to ask, ‘if they are dead, tell us.’4

The security forces employ the mechanism of disappearances for a range of reasons: some are arbitrarily detained in crackdowns to frighten and terrorize communities, others are picked up for alleged links with insurgents, as a punitive measure, as a means to extort money from families for the life and security of the abducted. Disappearances is a potent tool of intimidation, as months and years of enduring hope and despair may render families ready ‘to do anything if only he comes back alive’, as some mothers have said.5

There is a complete blackout of all information relating to the well-being and whereabouts of the disappeared person. All attempts to obtain any information through personal or official, legal channels are obstructed and systematically stonewalled. Families spend time, money, energy and emotion seeking rudimentary information about place and cause of detention. Impeded by lack of knowledge about law and legal procedures, economic disabilities, threats from security forces and equipped only with sketchy, insufficient, vague and at times inaccurate information, families spend lifetimes searching for sons, daughters, fathers and brothers. Perhaps in no other circumstance can the phrase, ‘no news is good news’ be more cruel and injurious. In this circumstance, availability and access to information may well make the difference between life and death, both of the person who has disappeared as well as the family left behind.

During Operation Rakshak, spearheaded by former DGP K.P.S. Gill, Punjab witnessed a sharp increase in disappearances. Jaswant Singh Khalra, Chairman of the Human Rights Wing of the Akali Dal, uncovered and placed before the Supreme Court the incident of 2097 illegal mass cremations by the Punjab Police in Amritsar district between 1984-1994. Thousands of families groping in the dark for clues about their abducted family members, were misinformed by the police that these young men had left for foreign countries. These families were unable to secure any information about their missing relatives, either during their lifetime or even upon their death, as their loved ones were cremated as ‘unidentified and unclaimed.’6 Even as families of the ‘disappeared’ in Punjab, through the Committee for Coordination on Disappearances in Punjab continued their arduous journey for the discovery of truth and justice before the NHRC, J.S. Khalra was himself abducted from in front of his house in September 1995. After investigation, the police has been charged for his ‘disappearance’.

The phenomenon of enforced disappearances in the North East is closely linked to the imposition of a repressive military regime that has systematically eroded all institutions of civil society. In the counter-insurgency operations conducted by the security forces, abduction and disappearances occur in conjunction with other human rights violations, including arbitrary detention, custodial torture and killings. Most cases of disappearance occur when the armed forces arrest and torture alleged suspects or sympathisers to extract information. Many never return from these interrogations. They simply ‘disappear’.

In 1983, the Supreme Court in a landmark judgment, Sebastian M. Hongray vs. Union of India,7 in a habeas corpus petition filed for the production of two Nagas who had disappeared after being taken to a camp by the army, concluded that the two missing persons must have met an unnatural death, which prima facie would amount to murder. The Supreme Court stated, ‘... that further adjourning the matter to enable the respondents (army) to trace or locate the two missing persons is to shut the eyes to the reality and pursue a mirage.’ The court also ordered the state to pay a one lakh rupee compensation to each of the wives of the missing persons.

Since the emergence of armed resistance in Kashmir in 1989, disappearances have been reported, and have been acknowledged by almost every chief minister in Srinagar.

‘I went from pillar to post to get any trace of my son but to no avail. I lodged a report in the police station... but the officer in charge refused to register a case. I approached the Inspector General of Police... and at first he assured me that my son’s whereabouts would be made known to me but when I approached him again after some days I was chased away. Finally I filed a petition in the High Court and pursued it for some time but could not continue for lack of money as I am very poor. ... My son had nothing to do with militancy... His "disappearance" is unbearable for me. Neither his person is shown to me nor his dead body is shown. This is a horrifying experience for me and other members of the family... I am right now helpless. It is very difficult for me to manage the household affairs. His disappearance has virtually brought us to the level of begging. God knows what will happen to us.’ (Haleema Begum about the ‘disappearance’ of her son Bilal Ahmad Bhat on 3 December 1992.)8

This narrative echoes the trauma of over 2000 families in Kashmir. Bound by the common thread of grief, suffering and uncertainty, the relatives of the disappeared in 1994 formed the Association of Parents of Disappeared Persons (APDP) led by Parveena Ahanger, whose 18 year old son disappeared after being arrested by the NSG in 1990. Strenuous efforts to seek legal redress through habeas corpus petitions in the J&K High Court, and petitions before the State and National Human Rights Commission have all failed. APDP has been pursuing the demand for information about what happened to their loved ones, a need for official acknowledgment, and a quest for justice in respect of those responsible. Even the reporting of disappearances entails grave risks and activists like Jalil Andrabi and H.N. Wanchoo were killed for making these facts public.

Disappearances are emboldened by laws that give security forces sweeping powers of arrest and detention, broad powers to deploy lethal force and kill. Security forces operating under these laws enjoy virtual impunity, as they are provided immunity from prosecution. The high-pitched rhetoric of national security and territorial integrity overwhelms public opinion and at times even the judiciary falters in enforcing rights and exacting accountability. Current laws providing legal cover for the disappearances include the Armed Forces (Special Powers) Act, 1958; Disturbed Areas Act; Jammu and Kashmir Public Safety Act, 1978; Assam Maintenance of Public Order (Autonomous District) Act, 1952; Nagaland Security Regulation, 1962, and Section 197 of the Criminal Procedure Code. They are further fortified by executive and administrative orders allocating ‘unplanned’ funds, beyond the scrutiny of democratic institutions.

The surfeit of powers enjoyed by the armed and paramilitary forces flowing from the special laws and the apparent impunity provided by the Union government by refusing sanction to prosecute, has enabled the security forces to perpetrate human rights violations, including ‘disappearances’, over the years. The practice of enforced disappearance of persons infringes upon an entire range of human rights embodied in the Universal Declaration of Human Rights and as set out in major international human rights instruments as well as the Indian Constitution. The Declaration on the Protection of all Persons from Enforced Disappearance9 and the Draft International Convention on the Protection of All Persons from Forced Disappearance, require the Indian government to promptly provide accurate information about detained persons to their family members.

For the right to information to gain ground in these circumstances, certain preconditions must be fulfilled. It is imperative that draconian laws and provisions legitimizing impunity, enumerated above, particularly the AFSPA, are repealed and accountability exacted. It would be facetious to talk of the right to information without granting to people in these regions access to information that impacts upon their life, liberty, human security and their very survival. Significantly both the Right to Information Bill, 2004 and Jammu and Kashmir Right to Information Act, 2004, on grounds of sovereignty and integrity of India, place beyond the reach of the people all information sought from intelligence and security organizations.10

It is critical that these are amended and information relating to the life and liberty of people made available, even qua security forces of all hues. In this respect a worthwhile ‘confidence building measure’ of the United Progressive Alliance government would be to constitute an independent judicial commission to investigate into all complaints of disappearances in Kashmir, Punjab and the North East.11 Contingent upon the enjoyment of the right to information is not just the efficacy of Indian democracy but the liberty, security and dignity of its citizens and communities.

Vrinda Grover

Footnotes:

1. Secretary, Ministry of Information and Broadcasting, Government of India vs. Cricket Association of Bengal, (1995) 2 SCC 161.

2. Dinesh Trivedi vs. Union of India, (1997) 4 SCC 306.

3. ‘Disappeared: Technique of Terror’. Report prepared by the Independent Commission on International Humanitarian Issues, London, 1986.

4. Association of the Parents of Disappeared Persons, Kashmir.

5. Amnesty International, India: ‘Disappearances’ in Jammu and Kashmir, AI Index: ASA 20/2/99.

6. Reduced to Ashes, R.N. Kumar with Ashok Agrwaal and Jaskaran Kaur, May 2003.

7. AIR 1983 SC 1086.

8. Haleema Begum was shot dead by unidentified gunmen in 1998.

9. General Assembly resolution 47/133 of 18 December 1992.

10. Section 8 and 21 of the Right to Information Bill, 2004; Sec. 6&8 of the J&K Right to Information Act, 2004.

11. Resolution passed at the National Convention on the Right to Information, Delhi, 2004.

 

A path to swaraj

INDIA has had a reasonably functional democracy for over five decades. However, despite a reasonable democratic process being in place, an egalitarian, fair and honest governance structure has failed to evolve. Conceptually, a democratic system must ensure good governance and accountability. This by itself could ensure that even the weakest get enough to lead a decent life. On this count, most affluent countries have certainly delivered better. In India, an egalitarian and fair ethos has not evolved; the truth is that there has been a decline on these counts.

Civil society did not enforce its rights for the common good. Most power structures, in government and outside, have become instruments to service the needs of particular sections. This leads to a hegemonising of ‘public interest’ action by the state as well as private organisations in favour of the advantaged sections.

What then is the way out? If we conclude that most organisations, including political parties, will mimic each other and are unlikely to work for better governance in the short-term, is there any hope? The hope lies in using and reinforcing the majesty of the individual citizen. If individual citizens are empowered to ensure greater accountability and transparency in governance, they can bring about a major change. So far, however, there was no vehicle available for individual citizens to impact the governance structure. Fortunately, the right to information has shown promise of empowering citizens to demand accountability and act as an enforcer of good governance.

The right to information is available to every citizen, and can be used by individual citizens from their own houses. It is inexpensive to use and does it require working in groups. Whenever there are major issues which expose lack of governance in terms of proper public policy or corruption, citizens can come together on a particular case. The strength of this common good will build a stronger and more ethical civil society.

I have been using the right to information (RTI) to unearth the brazen subsidy being given to the rich and the elite. State machinery and ‘public servants’ have colluded with the privileged to grab common land at a fraction of its cost. While property prices in Mumbai have gone up by a factor of 20 to 30 since 1970, in one case I was informed that the lease rent for an elite club has actually been reduced by the government! I am presently unearthing details of the total land in Mumbai which has been given away on lease at a pittance, or at times for free. The total land given on lease by the BMC and the various Collectors of Mumbai is 20.5 million sq m for an annual lease rent of Rs 285 million. This works out to Rs 13.84 per square metre per year. If we take an approximate average value of land at about Rs 22000 per sq mtr (about Rs 2000 per sq ft) in the whole of Mumbai, and accept that a lease rent of about 8% of the market value should be charged, the annual loss to citizens comes to Rs 35000 million! This is part of the subsidy on land in Mumbai alone that mainly goes to the rich.

To put this in perspective, Mumbai’s pavements are not going to be repaired, since the World Bank has refused to give a loan of Rs 150 million! This Rs 35000 million belongs to the poorest citizens, who may actually be starving to death. I have started a public campaign on this case through friends and the internet. Some media has also carried stories. Citizens across India, where the right to information exists, can gather evidence of such rampant fleecing of the commons.

As we ask for details of illegal acts, and also about the laws based on which actions are taken, we will be able to transform ourselves into a truly participative democracy which works for larger public good. We as individuals have the power and the responsibility of bringing about good governance by using and spreading the use of the right to information. Going beyond checking corruption and getting the citizens their rightful due, the right to information also lends itself to being used by citizens to address issues of governance and demand a rational basis for public policy.

Presently, the right to information exists in nine Indian states, and recently Parliament has passed a central act which will apply across the country. This act will be implemented by October 2005. Indian citizens now have an opportunity to realise ‘Swaraj’ – true and enlightened self-governance, which they missed in 1947. The responsibility of ensuring that the RTI Act delivers its potential rests on us. We need to build an awareness to seize this opportunity through a sustained campaign – a national campaign for people’s right to information.

Shailesh Gandhi

 

Silent and secret executions

PUBLIC debate on the death penalty in India resurfaces every few years, particularly in the wake of a prominent case. In the recent past this was seen after the Rajiv Gandhi murder trial where 26 people were sentenced to death, the Parliament attack trial and most recently, the Dhananjoy Chatterjee execution in August 2004. The debate that follows is almost entirely an emotional response to the issue and is rarely based on information and statistics. The main reason for this is lack of information on India’s record on death sentences and executions in the public sphere. This also means that there is an absence of data and analysis regarding deterrence vis-ŕ-vis death sentences. The phrase oft repeated by journalists is that the government does not collect or provide information on previous executions carried out.

The assertion in the media that Dhananjoy Chatterjee was the 55th person executed in India went unchallenged. While there was no source attributed to this information, there was no information to the contrary presented by any government agency. The recent ‘discovery’ by the People’s Union for Democratic Rights (PUDR) of the contents of Appendix XXXIV of the 1967 Report on Capital Punishment of the Law Commission of India has given the subject of death penalty a new twist in India. This appendix lists 1422 persons executed in India from 1953-1963 alone, thus dispelling the ‘myth’ of rare executions.

While the National Crime Records Bureau (NRCB) provides information on executions carried out between 1995 and 2001, it maintains silence about executions before 1995. This silence is curious for it is clearly not for absence of information. A glance at the otherwise excellent ‘Crime in India’, published by NCRB since the mid-1950s, is testament to this as it contains a gold mine of information on every reported crime in India. Furthermore, given the bureaucratic manner in which prisons are managed and executions take place, it is extremely implausible that the government does not have records on executions.

In a 1989 report on the death penalty in India, Amnesty International quoted the government as announcing before the Lok Sabha in November 1986 that 35 executions had been carried out from 1982-85. There is also a similar reference to executions from 1974-78. Furthermore, the Attorney General of India, Ashok Desai made a statement before the UN Human Rights Committee in 1997 claiming that the number of executions in India in recent years was far lower than in the past. The Attorney General must have had access to statistics, both past and present, to make such a claim. When contacted, however, the Ministry of Home Affairs, the President’s Office and the NCRB were unwilling to reveal any information on executions. The National Human Rights Commission and the Law Commission too appear to have no information available.

The Government of India has a clear obligation internationally to make public all information relating to the death penalty in India. Yet despite such requirements, the government has not been forthcoming with such information. In a press statement earlier this year, PUDR noted, ‘the continued suppression of information by the various agencies of the state is a deliberate attempt at misinformation and raises concern.’

Executions are carried out in prisons in various states in India since this subject falls within the jurisdiction of the state government. In Delhi, PUDR had filed an application under the Delhi Right to Information Act, 2001 to collect information on executions that have taken place in the Tihar (Central) Prison in Delhi since independence. In his reply dated 12 May 05 the DIG (Prisons) has refused to provide the information on the grounds that, ‘some of the persons who have been executed had been convicted for various offences having prejudicial affect on the sovereignty and integrity of India and security of NCT of Delhi and international relations and could lead to incitement of an offence…’ (emphasis added). The reply also claims that the information ‘would not serve any public interest.’

The reply by the Delhi prison authorities reveals their attitude towards the Delhi RTI Act. Not only have they hidden behind the wide exception allowed under Section 6(a) of the Act, but despite being required to by the act, they have not provided any reason for why the information sought fits within the claimed exemption. Instead, the response shows a clear lack of application as it merely copies the entire text of the section, replacing ‘or’ by ‘and’ in three places. Thus, according to the authorities, not only does disclosure of information relating to the execution of death penalty in Delhi affect national sovereignty, it also prejudicially affects international relations besides being harmful for the security of Delhi as it may lead to incitement of offences.

The grounds for refusal provided by the Delhi authorities are inexplicable given that the office of the Inspector General of Prisons, Pune provided the same information for Maharashtra in another identical application filed by PUDR under the Maharashtra Right to Information Act earlier in the year.

While information relating to the execution of death sentences in India has always been shrouded in secrecy, this is the first instance where a government authority has stated, in writing, that such information is effectively a state secret. That the government is going as far as using defence of national sovereignty and international relations to deny information relating to judicial executions that have been carried out makes one wonder what the records being held back contain. The upcoming Right to Information Act, 2005 may offer another crack at getting this information, should the appeal filed by PUDR with the Public Grievance Committee under the Delhi RTI fail. The national law will also allow for applications to be filed with the NCRB and the Ministry of Home Affairs. Whether the applications under the new act go the Maharashtra way or the Delhi way, only time will tell. One thing, however, is clear – as with disappearances, extrajudicial executions and other human rights violations, the government is certainly keen to withhold information relating to the death penalty in India.

Bikram Jeet Batra

 

Holding officialdom accountable

THE right to information is redefining relationships between the government and citizens. Triveni is a matriculate. She was shocked to learn that her shopkeeper was siphoning off rations meant for her by making false thumb impressions on cash memos in her name. Actually, she had not received any food grains for the last six months. Every time she went to the shop it would either be closed or the shopkeeper would claim that there was no stock.

Triveni is a poor woman who lives in a slum colony in East Delhi. She holds an Antyodaya card issued by the government to the poorest of the poor. However, it is not easy to buy from a ration shop. In February 2003, Triveni filed an application under the Right to Information Act asking for details of the quantity of ration issued to her as per records and also copies of cash memos purported to have been issued to her. After a month, she received a reply stating that she had been issued 25 kgs of wheat at Rs 2 per kg and 10 kgs of rice at Rs 3 per kg every month in the last three months. The cash memos showed thumb impressions having been made in her name.

Triveni is literate. She never puts a thumb impression and always signs. Naturally, the thumb impressions did not belong to her but were fake. This shows that the shopkeeper had been drawing her ration by faking thumb impressions in her name for the last so many months. Triveni was shocked. But now she was equipped with evidence to proceed against the shopkeeper. Before she could act, however, the shopkeeper came to her house and pleaded with her not to take any action, promising to mend his ways. Since then, Triveni has got the right amount of ration at the right price for the last year and a half.

Nannu is a daily wage earner. He lives in Welcome Mazdoor Colony, another slum habitation in East Delhi. He lost his ration card and applied for a duplicate in January 2004. He made several rounds of the local Food and Civil Supplies office over the next three months. But the clerks and officials would not even look at him, leave alone do his job or bother to tell him the status of his application. Ultimately, he filed an application under the Right to Information Act asking for the daily progress made on his application, names of the officials who were supposed to act on his application, and what action would be taken against these officials. Within a week of filing the application, he was visited by an inspector from the Food Department, who informed him that the card had been made and that he could collect it from the office. When Nannu went to collect the card, he was given a warm reception by the Food and Supply Officer (FSO), who is the head of a circle. The FSO offered him tea and requested him to withdraw his application under the right to information, since his work had already been done.

These two incidents are not exceptions. Such experiences are happening daily in different parts of Delhi since the Right to Information Act was passed. It is redefining relationships between the government and citizens.

A NGO, Parivartan, along with a number of people living in the slum areas of Delhi has sought, and in some cases succeeded, in obtaining records of ration shopkeepers in various parts of Delhi. These records were obtained under the Delhi Right to Information Act. When these records were physically verified, the findings were nothing less than shocking. Almost everywhere, the rations were being siphoned off by shopkeepers forging signatures of cardholders in the records. In most areas the people had been given to believe that the government had stopped sending rations. People living in Ravidas Camp have not received even a single grain for many years. But when the records came out, people were shocked to see how the ration was, in fact, being siphoned off, month after month by the shopkeeper. In some areas, shopkeepers were forced to improve their conduct when the records became public.

The mere seeking and dissemination of information has thus had a salutary impact in certain areas. A large number of people like Triveni and Nannu are able to stand up to the insensitive system and demand justice using right to information laws. Corrupt officials and vested interests are also realizing that their misdeeds could some day become public. Earlier the probability of getting caught was almost negligible. The responsibility of exposing corruption was squarely on the vigilance and anti-corruption agencies, with little participation from the people. Right to information laws have now empowered ordinary citizens to do that. The chances of the corrupt getting caught have suddenly shot up.

However, after obtaining information and exposing corruption, people are reaching a dead end. The governments often fail to take any action on complaints made by the people. Several complaints of corruption, along with evidence obtained under the Right to Information Act, have been made against shop owners and food department officials. However, not a single FIR has been registered so far. This is because the entire vigilance and anti-corruption setup in the states is under the control of the executive. Often complaints have to be made to the same set of people against whom one has complained.

Arvind Khejriwal

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