“Tackling poverty requires improving access to justice for the poor” – UN expert on extreme poverty

Several people died due to hunger in the Bhuvan valley tea garden in  Assam

Statement to mark the International Day for the Eradication of Poverty – 17 October 2012

15 October 2012

GENEVA – The United Nations Special Rapporteur on extreme poverty, Magdalena Sepúlveda, has called on States to take immediate measures to ensure access to justice by the poorest segments of society in a statement to mark the International Day for the Eradication of Poverty. 

“Access to justice is a human right in itself, and essential for tackling the root causes of poverty,” said Ms. Sepúlveda, urging States to improve such access for the poor as a core part of their efforts to fight poverty. 

“Without access to justice, people living in poverty are unable to claim and realize a whole range of human rights, or challenge crimes, abuses or violations committed against them,” Ms. Sepúlveda stressed. 

People living in poverty face serious obstacles to accessing justice systems – including financial, social and physical barriers – which perpetuate and exacerbate their disadvantage.

“People living in poverty are often prevented from seeking justice due to the cost and time of travel to a distant courthouse, fees charged for filing claims or lack of free, quality legal assistance,” the Special Rapporteur said. “The poor may be denied legal standing to file a claim because they do not have an official birth certificate.”

“Lack of information about their rights, illiteracy or linguistic barriers, coupled with entrenched stigma attached to poverty, also makes it harder for the poor to engage with the justice system. In such circumstances, a person living in poverty cannot uphold their rights or challenge injustice,” she stressed.

 

Ms. Sepúlveda noted that even mature democracies struggle to ensure de facto equal access to justice by those living in poverty. “It is crucial to construct an inclusive justice system that is close to the people, both socially and geographically,” the independent expert said. 

“Ensuring access to justice for the poor requires well-functioning judicial systems and laws that do not solely reflect the interests of wealthy and more powerful groups but also take into account income and power imbalances,” she said. “Reforms must be implemented with the effective and meaningful participation of persons living in poverty.” 

Ms. Sepúlveda emphasized that women living in poverty face particular difficulties in access to justice, and this is a major cause of their greater vulnerability to poverty. In her view, “efforts to tackle poverty must include empowering women to seek justice, and ensuring that the justice system does not discriminate against them.”

“On the International Day for the Eradication of Poverty, I wish to remind States and others that efforts to end poverty must be multi-dimensional and sustainable. Improving access to justice is a crucial part of any strategy,” concluded Ms. Sepúlveda.

The Special Rapporteur’s 2012 report to the General Assembly, to be presented on 30 October 2012, examines the obstacles that persons living in poverty face in accessing justice. See the report:http://www.ohchr.org/Documents/Issues/Poverty/A-67-278.pdf

Magdalena Sepúlveda was appointed as the Special Rapporteur on extreme poverty and human rights in May 2008 by the United Nations Human Rights Council. She is independent from any government or organization. Learn more, visit: http://www.ohchr.org/EN/Issues/Poverty/Pages/SRExtremePovertyIndex.aspx

Check the Special Rapporteur’s “Guiding Principles on Human Rights and Extreme Poverty”:http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session21/A-HRC-21-50_en.pdf

The Guiding Principles are also available in Arabic, Chinese, French, Russian and Spanish:http://www.ohchr.org/EN/Issues/Poverty/Pages/AnnualReports.aspx

For inquiries and media requests, please contact Lidia Rabinovich (+ 41 22 917 9763 /lrabinovich@ohchr.org or write to srextremepoverty@ohchr.org. 

For media inquiries related to other UN independent experts:

Xabier Celaya, UN Human Rights – Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)   

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For use of the information media; not an official record

HR12/263E 

The statement is available at http://www.unog.ch/80256EDD006B9C2E/(httpNewsByYear_en)/A5DBA85166516D66C1257A98002F42CA?OpenDocument

Forced child marriage, slavery like reality in every single region of the world

This is a Statement issued  jointly* by a group of UN human rights experts to mark the first International Day of the Girl Child, Thursday 11 October 2012 

Every year an estimate of 10 million girls are married before they reach 18

GENEVA (11 October 2012) – “Girls who are forced to marry are committed to being in slavery like marriages for the rest of their lives. Girls who are victims of servile marriages experience domestic servitude, sexual slavery and suffer from violations to their right to health, education, non-discrimination and freedom from physical, psychological and sexual violence. 

Every year an estimate of 10 million girls are married before they reach 18. In the most appalling of these cases, little girls as young as eight years old are being married off to men who may be three or four times their age. 

Child marriage cuts across countries, cultures, religions and ethnicities; 46% of girls under 18 are married in South Asia; 38% in sub-Saharan Africa; 29% in Latin America and the Caribbean; 18% in the Middle East and North Africa; and in some communities in Europe and North America too.   

Child marriage is a violation of all the rights of the child. It forces children, particularly girls, to assume responsibilities for which they are often physically and psychologically not prepared for.   

Girls who are forced to marry face a life of violence in the home where they are physically and sexually abused, suffer from inhuman and degrading treatment and ultimately slavery. 

Early marriages also impacts on girls’ right to education, health, and participate in the decisions that affect them. Girls who marry early often drop out of school, significantly reducing their ability to gain skills and knowledge to make informed decisions and to earn an income. An obstacle to girls’ and women’s empowerment, it also hinders their ability to lift themselves out of poverty. 

Child brides are more likely to get pregnant at an early age and, as a result, face higher risk of maternal death and injury due to early sexual activity and childbearing. 

  

A vast array of international instruments recognizes the right to free and full consent to marriage. In particular, the Convention on the Elimination of All Forms of Discrimination against Women states that the marriage of a child shall have no legal effect, and the Convention on the Rights of the Child, requires States parties to take all effective and appropriate measures with a view to abolishing practices that are harmful to children. 

Today, on the first United Nations International Day on the Girl Child, we call on States to increase the age of marriage to 18 years of age for girls and boys without exception and adopt urgent measures to prevent child marriage. As with all forms of slavery, forced early marriages should be criminalized.  They cannot be justified on traditional, religious, cultural or economic grounds. 

However, an approach which only focuses on criminalization cannot succeed in effectively combating forced early marriages. This should go hand in hand with public awareness raising campaigns to highlight the nature and harm caused by forced and early marriages and community programmes to help detect, provide advice, rehabilitation and shelter where necessary. In addition, birth registration should be made universal to support proof of age and prevent forced early marriage. 

On this International Day of the Girl Child, we remind States of their obligation to promote and protect the rights of girls and that harmful practices against girls, including early and forced marriage should be put to an end, in accordance with international law. 

No girl should be forced to marry. No girl should be committed to servile marriage, domestic servitude and sexual slavery. No girl should suffer from violations to their right to health, education, non-discrimination and freedom from physical, psychological and sexual violence. Not a single one.” 

ENDS 

Girls who are forced to marry are committed to being in slavery like marriages for the rest of their lives

(*) This joint statement was issued by the UN Committee on the Rights of the Child, UN Committee on the Elimination of Discrimination against Women, the UN Special Representative of the Secretary General on Violence against Children, the UN Special Rapporteur on Sale of children, child prostitution and child pornography, the UN Special Rapporteur on Contemporary forms of Slavery, including its causes and consequences, the UN Special Rapporteur on violence against women, the UN Special Rapporteur on trafficking in persons, especially women and children and the UN Working Group on Discrimination against Women in Law and Practice. 

Report on servile marriages: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G12/151/67/PDF/G1215167.pdf?OpenElement 

Check the Convention on the Elimination of All Forms of Discrimination against Women: http://www2.ohchr.org/english/law/cedaw.htm, and the Convention on the Rights of the Child:http://www2.ohchr.org/english/law/crc.htm

Struggles in Assam

Assam

Adivasis in Assam are struggling for schedued caste status for decades. But those of them who live in Barak valley only demand increase of their megre wages and giving them their other legal entitlements as tea plantation labourers so as they can save themselves from starvation and malnutrition deaths. Bengalis in Assam occasionally demand that those of them who are genuine Indian citizens should not be harassed and their right to use their language and to preserve culture should not be taken away. Bengali speaking Muslims sometimes feebly join their Hindu counterparts in their first demand, though their socio-economic condition is by no means better than the Adivasis (excepting that all non-Bodos living in Bodoland are demanding for scrapping or amending the Bodoland accord). A section of Assamese people is still fighting for a separate sovereign state of Assam independent of India. A section of Bodo community is also busy in armed struggle for their independent homeland while another group wants a Bodoland state independent of Assam but within India. All other small and big ethnic communties want separate states or autonomous homelands within Assam. The boundaries of demnaded homelands overlap to a great extent and the fight turns among themselves.

Except Bengali Hindus and Muslims and perhaps Adavasis, all communities are right now up against illegal Bangladeshis while the former groups in principle do not oppose this demand of expulsion of illegal foreigners but fear witch-hunt and therefore want their protection.

But all people of Assam in unision want the state of exception under the Armed Forces (Special Power) Act, 1958 has to be ended, projects of big river dams that jeopardise the livelihood and ecosystem must be crapped and, yes, all want the regime of corruption and impunity must be ended. 

The energies of the people get nearly exshausted in sectarian struggles. People continue to fight among themselves and kill each others. State repression, elite and mafia (overground and underground) opression and corruption and loot by politicians and bureaucrats continue unabated while peace and progress keep elluding the state and people.

Assam: Vigilantism leads to riots

Tension between communities was brewing in Assam well before devastating ethnic violence in western  part of the state erupted in July-August of 2012. The recent violence claimed about 93 lives excluding many other reported and unreported missing persons and rendered about 500,000 people homeless. It threatened the whole nation of a major flare-up when right wing Hindu political groups and Muslim fundamentalists tried to communalise it and spread it wherever they could. Muslims youths resorted to mayhem in Mumbai in the name of protest against this violence. Mindless campaigns over social media shot off to incite more violence by fanatics of both camps. People of North East India working or studying in other parts of India felt threatened and fled for homes from some west and south Indian cities. 

The tension that was brewing before was absolutely unrelated to what happened in Bodoland between people of Bengali speaking Muslim settlers and native Bodo tribe except that the Hindu Right tried hard to exploit the volatile situation to their advantage. 

It is in the month of April when a sitting Member of Legislative Assembly (MLA) of Assam Dr. Rumee Nath married a Muslim boy while her first marriage subsisted abandoning her 2 year old child that some vigilante groups activated themselves and did everything to polarise particularly the people living in Barak valley, the southern part of Assam. They invoked love jihad and enforced several private curfews-- general strike enforced with coercion -- to mobilise people in religious lines. It led to violence in different places in the valley resulting in injuries of many persons and death of one and destruction of public properties.

Assam based human rights group Barak Human Rights Protection Committee (BHRPC) conducted a fact-finding study and issued a report about the situations and events on 19 July 2012. Though the report is focused on the death of Azizur Rahman in police custody, it also extensively deals with the building up of tensions that led to his death.

BHRPC report on efforts of effecting communal division, riots and custodial death in the aftermath of “conversion and second marriage” of Dr Rumee Nath

An aged person named Mr Ajijur Rahman was picked up from his residence at Kalain under the Katigorah police station in the district of Cachar (Assam) by a raiding police team led by Mr Y T Gyatsu, a probationary Indian Police Service (IPS) officer posted as Additional Superintendent of Police at the Cachar police headquarters at Silchar in the night between 6 and 7 July 2012 and was tortured to death in the lock-up of Kalain police patrol post.

The police team was conducting raids to arrest some persons who were accused or suspects of creating mischief and rioting on and after 4 July in Kalain area. The law and order situation of the area deteriorated due to a call of general strike by the Hindu Jagaran Mancha in protest against alleged police harassment of youths belonging to their community who were suspected of being parts of the mob that assaulted Dr. Rumee Nath and her ‘husband’ on 29 June at Karimganj for her ‘conversion and marriage’ with the Muslim boy. The Mancha was also reportedly protesting against the protests of the supporters of Dr. Nath.

The report:

After the incident the Barak Human Rights Protection Committee (BHRPC) formed a fact finding team comprising of 1. Mr. Neharul Ahmed Mazumder, 2. Mr Sadique Mohammed Laskar, 3. Mr Raju Barbhuiya, 4. Mr Nirmal Kumar Das, 5. Mr Aftabur Rahman Laskar, 6. Ms S Sarmila Singha and 7. Mr Abdul Wakil Choudhury to find out the factors and the situation that led to the death of Ajijur Rahman. The team visited Kalain area on 14 July and met family members and relatives of the victim, victims of rioting and their family and relatives and respectable citizens of the area including president, secretary and members of Kalain Bazaar committee Mr Sukhendu Kar, Mr Karunamoy Dey, Mr Asit Baran Deb and others. The fact finding team also visited the Kalain police patrol post and talked with the officer-in-charge Sub-Inspector of police Mr Anowar Hussain Choudhury and some constables. This report is based on the information collected by the team.

The victim:

The victim Mr Ajijur Rahman was aged about 60 years and a permanent resident of village Boroitoli Part-I, Kalain under Katigorah police station and was respected as a senior local businessman. The place, where his house situates, borders with three villages of Boroitoli, Brahmangram and Lakhipur. He was the head of his family which comprised of his 5 sons Mr Fariz Uddin (aged 42), Mr Sarif Uddin (39), Mr Selim Uddin (30), Mr Nazim Uddin (26), and Mr Mahim Uddin (20), 4 daughters Ms Anowara Begum (32), Ms Monowara Begum (aged 24 and unmarried), Ms Reena Begum  (aged 18 and unmarried), Ms Runa Begum  (aged 15 and unmarried), his wife Ms Saleha Khatun (55) his mother aged about 80 years and the children of his sons. It is a big joint family of people of three generations living together. It appeared that the family belongs to the emergent lower middle class of Bengali Muslims in Barak valley (South Assam).

Place:

Kalain is situated at a distance of about 40 kilometres from Silchar towards west and is a growing semi-urban area serving as a local business centre for the entire West Cachar region. The population of Bengali speaking Hinuds and Muslims are almost equal in number. Hindus have been living mostly nearby the market. Beside these two religious communities, some other people belonging to Manipuri, Bishnupria and Hindi speaking communities are also living in the outskirts. According to the local residents, people of Kalian belonging to different communities have been living harmoniously and in peace and love with each other for times immemorial. However, there were small quarrels and even fighting at times between people belonging to different communities but they were of personal nature and the religions of the parties have had nothing to with them.

Incident:

A huge police team led by Mr Y T Gyatsu raided the house of Mr Ajijur Rahman at about 12.30 in the night intervening between 6 and 7 July. They first cordoned off the house from all sides and then knocked at the doors. The inmates of the house were fast asleep. At the sound of heavy knocks Mr Ajijur Rahman got up and opened the door. A big number of police personnel including a lady constable remained outside the house and four/five of them including Mr Gyatsu went into the house. They asked for Mr Nazim Uddin who was not home at that time. In fact, no other male members of the family were present in the house since they were in hiding. The able male members of all families of the area were hiding themselves in apprehension of indiscriminate arrest and harassment by police in the wake of the rioting. As an aged person Mr Rahman did not feel the need to hide himself.

The police team made all female members to go out of the house and they conducted a search for Mr Nazim Uddin in all rooms including kitchen and bathrooms in vain. They demanded of Mr Ajijur Rahman to tell them the whereabouts of his son or they would send him in jail in place of his son. When he pleaded ignorance of whereabouts of his son Mr Gyatsu hurled a torrent of verbal abuse and started assaulting him. He demanded that Mr Rahman would have to take his son to the police patrol post before 6am. Mr Rahman told that he would not be able to do so since he did not know where his son is and latter’s mobile phone was also off. At that Mr Gyatsu started boxing his ears and the back of his head while dragging him. Member of the raiding police team constable Mr Badrul Islam Barbhuiya, Ms Reena Begum, daughter of Mr Rahman and other eye witnesses told the BHRPC team that Mr Gyatsu did not let the old man to wear even a top under garment. The old man cried and pleaded with Mr Gyatsu not to take him to the police station as he was to go to Mecca in Saudi Arabia for Haj pilgrimage. His wife and daughters also wept uncontrolably and urged the police officers to spare the old man at least for the sake of God since he did not know anything about incidents of 4 July. These beseeching of the helpless was not heeded.

Mr. Mahibur Rahman[1], a neighbour and cousin of Mr Ajijur Rahmn, told the BHRPC team that when he heard of the cries of wife and daughters of the latter he went there and saw that the police was taking him with them. He then sneaked to house of other neighbours Mr. Taj Uddin[2] and Mr. Shahid Uddin[3] and awakened them. They were to move silently since they were themselves very afraid of the police and a prohibitory order under section 144 of the Criminal Procedure Code, 1973 was also in force. Three of them stood at the front side of a house[4] at a distance of about 20 metres from the patrol post to witness what was happening to the old man there. According to them, from that place everything was clearly visible since the doors and windows of the patrol post house were wide open and electric lights were on. They stated that they saw Mr Ajijur Rahman was seated on a red plastic chair. They inferred from the gestures of the police personnel and Mr Rahman that they were talking. Then two personnel coming from two sides kept his thighs in tight grip in a way that rendered Mr Rahman unable to move. And then another police personnel dressed like a higher officer and in his facial and physical features resembling to a tribal man came and placing his one grip at the chin and another on the head twisted the head of Mr Ajijur Rahman with tremendous force. It seemed that the body of Mr Rahman became motionless and loose and his head leaned at the side at which his head was left by the officer. This is also corroborated by Mr Taj Uddin and Mr Shahid Uddin.

According to the police personnel posted at the Kalain patrol post with whom the BHRPC team talked, there were two police officers there at the time who more or less look like tribals. One is Mr Y T Gaytsu and another is Mr L Saikia, the Deputy Superintendent of Police. It appears that the person who twisted the head of Mr Ajijur Rahman is either Mr Gyatsu or Mr Saikia.

According to the above mentioned eye witnesses, after the assault of the officer all people in the patrol post got agitated and a hullabaloo ensued. Two personnel lifted Mr Ajijur Rahman as if they were lifting a dead body and put him in a vehicle which then went away. It was at about 2am.

Mr. Mahibur Rahman further stated that a certain person named Mr AJijur Rahman Khan called him up on his cell phone and informed that a person of his name from Boroitoli was brought to the Kalain Community Health Centre and the physician in-charge of the hospital Dr Sumon Bhomik advised to take him to the Silchar Medical College and Hospital as he could not feel his pulse. Circumstances strongly indicate that Mr Ajijur Rahman  was brought dead and he died due to twisting of his head.

After that the family, relatives and neighbours of Mr Ajijur Rahman tried to find out what happened to him during the remainder of the night and in the morning some of them went to the SMCH and came to know about the death of Mr Rahman with help from local member of Assam Legislative Assembly Mr Ataur Rahman Mazarbhuiya. Autopsy of the body was conducted at the SMCH on 7 July and was handed over to the relatives of the deceased. After performing last rites Mr. Ajijur Rahman was laid to rest on the next day.

The local people were concerned that the post mortem report might not reflect the true causes of death and material facts might be suppressed since the autopsy in India is conducted in a very unscientific, legally improper and unreliable way. Usually someone engaged in manual scavenging cuts the body at the direction of a surgeon who stands at a safe distance and looks at the body from there. The surgeon does not touch the body or examine it otherwise. From that distance he makes a guess and writes down the cause of death based on the guess. In cases of custodial deaths the body remains under the custody and absolute control of the police since before the death until the autopsy report is prepared.

Observing such appalling conditions of autopsy procedure the National Human Rights Commission of India issued guidelines to the states as well as the central government calling for their immediate action to address the lack of transparency while dealing with deaths in custody. The Commission recommended video recording of the inquest as well as the post-mortem of the victim. The Commission has even recommended using a standardised ‘post-mortem examination report form’ by the forensic surgeons. These recommendations however have not been implemented in India in their letter and spirit. Sometimes the procedures may be recorded but the report is not prepared as per the recommended guidelines.

Sharing the concerns of the local people the BHRPC instantaneously on 7 July wrote a letter to the District Magistrate, Superintendent of Police and Superintendent of the SMCH enclosing the NHRC guidelines and urging them to conduct the autopsy as per the guidelines.

The DM also ordered an inquiry into the incident of death to be conducted an executive magistrate. People are of the opinion that it is nothing but an attempt to cover up the case and save the guilty officers and personnel. Executive magistrates are not independent judicial authorities. They are servants of the government and exercise quasi-judicial powers. They usually do not record evidence before the other parties and give parties opportunity to cross-examine the witnesses of the other party in violations of universally recognised rules of judicial procedure. There are reasons, therefore, to believe that their inquiry may not be objective and impartial.

The Parliament of India keeping in view of the lacunae in law regarding inquiry into the deaths in police custody incorporated a subsection (1A) in section 176 of the Criminal Procedure Code, 1973 by section 18 (ii) of the Criminal Procedure Code (Amendment) Act, 2005 providing for an inquiry by a judicial magistrate in addition to the inquiry or investigation held by the police. Although the BHRPC reminded the DM of this mandatory provision it was ignored.

The widow of late Ajijur Rahman filed a complaint at the court of Chief Judicial Magistrate, Cachar on 7 July 2012 under section 302, 506 and 34 of the IPC against Mr Y T Gyatsu and other police personnel. The complaint was sent to the Katigorah Police Station for registration and investigation. It was registered and assigned a case number vide Katigorah PS Case No. 291/12. The Officer-in-Charge of the police station entrusted a Sub-Inspector of police with the task of investigation. There are reasons to suspect the objectivity and impartiality of the investigation officer because he is working under the very persons who have been named as accused in the case.

Background:

As mentioned above, the police team that picked up Mr Ajijur Rahman was conducting raids to arrest some persons who were accused or suspects of creating mischief and rioting on and after 4 July in Kalain area. The law and order situation of the area deteriorated due to a call of general strike by the Hindu Jagaran Mancha in protest against alleged police harassment of youths belonging to their community who were suspected of being parts of the mob that assaulted and brutally beaten up Dr. Rumee Nath and her ‘husband’ on 29 June at Karimganj for her ‘conversion and marriage’ with the Muslim boy. The Mancha was also reportedly protesting against the protests of the supporters of Dr. Nath.

After the call of “bandh” (strike) on 4 July was given by the Mancha some groups in different areas of Barak valley issued a counter call to the people not to observe the bandh because, according to them, frequent strikes are harmful for the business and economy. These groups are thought to be the supporters of Dr Nath. In the morning of 4 July activists of the Mancha went to different parts of the valley to enforce the strike. One of such groups came to Kalain bazaar where they faced resistance from others who wanted the market to function normally.

The bazaar committee, a committee of shop keepers having shops at Kalain, intervened and a tripartite meeting was held among the opposers and supporters of bandh and the committee. The committee offered a compromise proposal after talk with both the parties that the shops could remain closed till 12 noon and then the shops could be opened. Though there were indications of acceptance by both the parties but it could not be finalised as some people of both the parties were adamant in their stands. The members of the committee went to their homes giving up hope of any settlement.

According to the information gathered by the BHRPC, after break down of talks when supporters of the bandh were trying to enforce it forcibly the police raised a barricade and kept most of them outside the barricade. However, they were trying to break the barricade unsuccessfully. With times the situation became very tense. At about 11.30am a mob of Muslim youths came with bamboo sticks and attacked anyone belonging to Hindu communities including shop-keepers and members of the bazaar committee. To face the attack many youths of Hindu communities also came out with sticks. A fight between the communities ensued. Stones were pelted from both sides. Some cycles and motor cycles were burnt down. About 18 people were wounded. They were 1. Mr Sunil Mandal, 2. Mr Sushil Deb, 3. Mr Sumon Deb, 4. Mr Pronit Deb, 5. Mr Sukhendu Kar, 6. Mr Jamal Uddin, 7. Mr Deepak Podder, 8. Mr Titu Baishnob, 9. Mr Buddha Deb Roy, 10. Mr Manna Deb, 11. Mr Sumit Shulkabaidhya, 12. Mr Badrul Islam Barbhuiya, 13. Mr Ranjit Deb, 14. Mr Khalil Uddin, 15, Mr Moin Uddin, 16. Mr Kamrul Haque, 17. Mr Debabrata Paul, 18. Mr Monsur Uddin and others. First six persons sustained serious injuries. Three reporters who went there to cover the situation were also caught in the fight between two communities and received injuries.

According to the local people, had the administration handled it efficiently the situation could be brought under control and the fighting and resulting injuries could have been averted. Executive magistrate Ms Khaleda Sultana Ahmed, DSP (probationary) Mr Iftikar Ali and in-charge of Kalain police patrol post Mr Anowar Hussain Choudhury were present. They failed to handle the mob frenzy. People felt they could take measures including lathi charge and tear gas fire. These measures could disperse the mob. Due to the inability of the authorities to take decisions the fighting intensified.

Towards the evening Additional District Magistrate Mr Borenya Das went to Kalain with a force of Central Reserve Police Force (CRPF) and ordered the police to charge the mob with sticks and fire of tear gas. The mob then got dispersed. The district administration then issued a prohibitory order under section 144 of the CrPC. The situation slowly came under control.

The police registered cases against many named and unnamed suspects who were accused of involvement in fighting on 4 July and started conducting raids of the houses of the people living there to arrest the suspects. It was one of such raids during which Mr Ajijur Rahman was picked up by the police and tortured him to death.

Controversy over ‘conversion and marriage’:

Apart from the mob hysteria that drove the mobs of both communities at that moment, this communal clash resulted from efforts of communalisation of ‘conversion and second marriage’ of Dr. Rumee Nath, encouragement and provocation of youths by a minister of Assam government to take law in their hands and beat up anyone who enters into inter-religious marriage.

Dr. Nath is a Member of Legislative Assembly of Assam (MLA) elected from Borkhola constituency in Cachar district holding ticket from the Congress party. She was earlier also elected from the same constituency as a candidate of the Bharatiya Janata Party (BJP) from which she later defected. She has been married with Mr. Rakesh Singh of Lucknow of Uttar Pradesh and from him she has a girl child who is about 2 years old. It was reported that their matrimonial relation has not been going well for some months.

In the month of April she reportedly got ‘converted into Islamic religion’ and ‘married’ one Jakir Hussain (also known as Jakey) of Badarpur under Karimganj district apparently as per Islamic rules. However, it is reported that the ‘conversion and marriage’ took place in the same sitting. Many Muslim clerics maintained that the marriage was invalid for it was solemnised before observing iddatperiod of three months and therefore her first marriage was subsisting. Validity of her conversion was also under question mark as it was tainted with motives that were not entirely pious. Most intellectuals of the valley also did not take her ‘conversion and second marriage’ pleasantly. According to them, her actions were immature, improper and not befitting of a public figure.

Her first husband filed a case against her and her ‘second husband’ under section 494, 497, 498 and others of the Indian Penal Code, 1860 accusing her of bigamy, (accusing her second husband of) adultery, enticing or taking away or detaining with criminal intent a married woman. She also filed case against her first husband alleging domestic violence.

The BHRPC maintained that right to get converted into any religion is a part of the freedom of conscience and free profession, practice and propagation of religion guaranteed by Article 25 of the constitution of India. Per se inter-religious and inter-caste marriages are also recognised by the Special Marriage Act, 1955 and such marriage should be encouraged as they can promote harmonious communal co-existence and secularism. However, in case of Dr. Nath the things are a little different. She was a married woman with a two years old child. Bigamy or living with another person as man and wife during the subsistence of earlier marriageprima facie amount to offence against the institution of marriage. Abandoning a 2 year old child is cruelty on the child and violation of child rights. These grievances against her could be legitimately vented through legal means and judicial process and which was what her first husband resorted to.

However, some groups including the Hindu Jagaran Mancha exerted themselves to blow it out of all proportion. They conjured up spectre of ‘love jihad’ and started campaign against inter-religious and inter-caste marriages, friendship between girls and boys belonging to different communities and even resorted to vigilantism by raiding parks, restaurants and other public places in search of inter-religious couples and friends and beating them up. Ostensibly this group received encouragement from political leaders who were interested in diving people in religious lines and diverting the attention of the people from the real issues of starvation deaths, corruption, miserable conditions of rural and urban roads and the national highways, human rights violations by police and armed forces etc.

A very influential politician of the ruling congress party in Assam Mr Gautom Roy, Minister for Public Health and Engineering (PHE), at a public function organised to mark 3 years of Assam government issued a call to the public to beat up any boy who marries a girl from a different community and to hand over the girl to her guardians. Provoked and encouraged by this call a mob of more than one hundred youths attacked Dr Nath and her ‘second husband’ at about 10pm on 29 June 2012 at Hotel Nakshatra in Karimganj where she was staying for the night after visiting her constituency. Both of them were brutally assaulted, and according to her, attempts were also made to rape her. After hours a police team rescued them in serious conditions. They were rushed to Guwahati for treatment.

The BHRPC could not confirm any direct links of the minister with the attack on Dr Nath and the mob that attacked her. But it is obvious that his call to beat up such couples definitely encouraged the mob. The comment of the minister is not only against the established constitutional canons of the land and principles of human rights but also a provocation to breach the public order and a call towards further lawlessness and jungle raj. Any person including a minister may disagree with any law and in such cases he should propose repeal or amendment of the law if he is sincere in his opinions. A minister who is part of the party that rules at the central and state governments should have proposed amendment of Article 14, 21 and 25 of the constitution and the Special Marriage Act, 1955 if he sincerely thought that conversion and inter-religious marriages are undesirable. By provoking youths he betrayed his motives.

The attack on Dr Nath is a manifestation of desperate reactions of patriarchy and its interests against the empowerment of women and empowered women. These are attacks on expression of moral agency in women. She was abused and attacked only because she was a woman.

Conclusion:

It is found that Mr Ajijur Rahman was the latest victim of inhumanity and brutality of the police which they sometimes without any rhymes and reasons unleash on the very people for whose protection they are being paid. His son Mr Nazim Uddin might be an accused or suspect and his arrest might also be necessary in the situation. But it is absolutely illegal to take his father into custody to be used as bait for the son. Moreover, the torture and other cruel, inhuman and degrading treatment to which he was subjected and which allegedly caused his death are not only illegal but also inhuman and barbarous.

It is also found that groups of people who have vested interest in communal divisions among the people created controversy around ‘conversion and second marriage’ of Dr Rumee Nath and engaged in a communal campaign. It polarised some people in religious lines and created tensions in Barak valley.

Provocative and ant-constitutional statement of Minister Gautom Roy encouraged the mob of the male dominated society to attack Dr Nath, a woman who represents more than 1 million people in the law-making body of the state and her ‘second husband’.

The alleged police harassment of youths and inefficient investigation of the attack case and efforts of forcible enforcement of strikes led to the fighting between the communities at Kalain; communal mass hysteria of some Muslims youths of Kalain and inefficient handling of the situation by the  authorities present there led to the fighting between the communities resulting in injuries of many innocent people; insensitivity to human rights of the people and reliance on illegal means and torture during investigation by the police resulted in the death of Mr Ajijur Rahman.

Recommendations:

The BHRPC recommends to the authorities including the Central government of India and government of Assam to take following actions:

To the Government of Assam:

1. To conduct a prompt and objective judicial inquiry into the death of Ajijur Rahman and the circumstances that led to his death;

2. To cause the investigation of the case of custodial death of Mr Ajijur Rahman to be conducted by a team led by an officer of the rank of Superintendent of Police of the Crime Investigation Department of Assam police;

3. To pay an ex-gratia of an adequate amount to the next of kin of Mr Ajijur Rahman;

4. To hand over the investigation of mob attack on Dr Rumee Nath to the Central Bureau of Investigation of Delhi Police as name of a minister of Assam government is involved in the incident;

5. To amend the Assam Police Act, 2007 to bring it in conformity with the directions of the Supreme Court of India in Prakash Singh and others Vs. Union of India and others case;

6. To separate investigation wing and maintenance of law and order wing of Assam police completely;

7. To train the officers and other personnel of Assam police in following human rights laws while tackling riots and dealing with mobs; and

8. To take any other actions needed for protection of human rights of the people.

1. To ensure a prompt and impartial inquiry by a judicial authority into the death of Ajijur Rahman, communal fighting and mob attack on Dr. Rumee Nath;

2. To ensure that the investigation of the case of custodial death of Mr Ajijur Rahman is conducted by a team led by an officer of rank of Superintendent of Police of the Crime Investigation Department of Assam police;

3. To ensure  payment of ex-gratia of an adequate amount to the next of kin of Mr Ajijur Rahman;

4. To ensure the investigation of mob attack on Dr Rumee Nath to the Central Bureau of Investigation of Delhi Police as name of a minister of Assam government is involved in the incident;

5. To repeal the colonial Police Act of 1861 and enact a police act as per directions of the Supreme Court of India issued in Prakash Singh and others Vs. Union of India and others case;

6. To enact the Communal Violence Bill after further consultation with the civil society;

7. To enact the Prevention of Torture Bill after further consultation with civil society;

8. To enact a law providing for adequate reparation and rehabilitation of the victims of human rights violations by the state agencies and their families after consultation with the civil society; and

9. To take any other appropriate actions required for protection of human rights of the people.

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To the Central Government of India:

[1] Mr. Mahibur Rahman, aged about 50, son of Haji Haroos Ali, resident of Lakhipur Part-I, Kalain, Katigorah, Cachar.

[2] Mr. Taj Uddin, aged about 44, son of late Abdul Barik of Boroitoli Part-I

[3] Mr Shahid Uddin,  aged about 25, son of late Abdul Wahab Barbhiuya of Brahmangram.

[4] The house belongs to one Mr Mainul Haque. They did not awake him lest the police know about any movements.

The report is also available at http://bhrpc.wordpress.com/2012/07/19/custodial-death-of-ajijur-rahman/

Assam violence: Sentencing victims to statelessness and starvation

Waliullah Ahmed Laskar* 

An estimated 1, 50,000 persons out of about 5, 00, 000 who have been rendered homeless in the recent ethnic clash in Western Assam districts, where 95 persons died and many disappeared and sustained injuries and loss of properties, are yet to be rehabilitated.

As one side of the conflict and dominant political groups in the state are clamouring for not rehabilitating them claiming that they are Bangladeshi infiltrators, the government has deiced to rehabilitate only those displaced people who has land documents. Till now such documents of only 11,066 families out of estimated 1,50,000 persons have been verified and reportedly found genuine and will be rehabilitated in 15-30 days.

It seems the government is committing grave injustice under sectarian pressure because the claims of these groups do not stand facts and figures. Sanjoy Hazarika, Director, Centre for North East Studies, Jamia Millia Islamia, that organised a seminar on the issue, said that immigration was a movement of labour force, and that there was “no great conspiracy” behind it as alleged by some groups. People move where they find work, he said.

There were large scale movements of people from other states of undivided India such as Bengal and Bihar in Assam during colonial period. After partition in 1947, although the movement has not stopped, number of the immigrants reduced to a great extent and reasons of immigration and the religion of the immigrants changed, at least to some degree. Most of the immigrants in post independence periods are Hindus fleeing for fear of persecution in Bangladesh. After the Indira-Mujib treaty of 1971 their numbers have also drastically come down as revealed in the census reports.

According to the Economic Survey of Assam 2011-12 released by the Government of Assam, growth of population in the state during 1971-2011 is 113.12 against the national growth rate of 120.77 during this period. If there is huge influx from Bangladesh in Assam then how come the national growth rate is higher? Is there a bigger influx in all other states also?

Birth rate among Muslims in Assam is comparatively high as the literacy rate is low and there is also some out-migration (though not very significant) of non-Bengalis of Assam in recent decades. It explains the marginal growth in percentage of the Bengali Muslim population.

A group of displaced vioence victims

However, still there is some movement of people from across the border. It is, as Mr Hazarika says, a movement of labour force, and that there is “no great conspiracy” behind it.

Now, if the Indian state decide to expel them without paying attention to the economic consequences as a sovereign state it has right to do so. But it certainly does not have the right to deprive all Bengali speaking Muslims of their citizenship and make them non-citizen subjects or render them stateless.

Due to conflation of legal and illegal migrants in the public discourse, arbitrary procedure of detection of foreigners and misuse of powers by the biased officials the bonafide citizens do not trust any move to expulsion of illegal immigrants and they put some resistance.

Even the regular procedure of detection and deportation, which the state has done away with in this case, is not consistent with the human rights norms and international law. The detection is being done by state government officials acting as election officers under the election commission of India and state police. In practice they do not follow any rules and based on information received from some non-official local persons, who work as personal informers to them, the election officials mark name of the concerned person with D (standing for doubtful) in the electoral rolls and/or police officers make reference to the foreigners tribunals. In both cases the concerned person is not informed and given an opportunity of being heard. Community leaders and rights activists say in most of the cases allegations are made against the concerned person to settle personal scores. According to them, this is the reasons for as low conviction rates as only about 6% in such cases so far. Marking D in name of a voter suspends his all citizenship rights for indefinite time and now about 150 thousand names in the electoral rolls are marked with D in the state.

Many people are detained in camps maintained for the purpose in inhuman condition after their name is marked with D in the voters list or a reference is made to the tribunal for the period of pendency of the trial which is indefinite in violations of Article 21 of the Constitution of India which says that no person shall be deprived of his life and personal liberty except in accordance with procedure established by law. The procedure of tagging names with D is nowhere established by law and arbitrarily making reference also contravenes due process principle.

The foreigners tribunals work under the Foreigners Act, 1946 and this law, in a fundamental departure from liberal jurisprudence, reverses the burden of proof (Sec. 9) and places the onus upon the person concerned to prove his citizenship. It thus replaces the cardinal judicial principle of presumption of innocence. Moreover, in many cases the tribunals do not even hear the accused and pass ex-parte orders declaring him a foreigner. It happens mostly in cases where the accused do not receive notice issued by the tribunal or can not hire a lawyer to represent him owing to his homelessness or indigent condition, as the case may be.  There is also no provision for appeal in the Act.

The process of deportation also violates international law relating to human rights and diplomatic protocols. It is described as follows: “When the people are forced across the border, all their possessions are taken away, along with any signs that may point to their Indian origin. They are warned that if they turn back, they will be shot as infiltrators. As parting advice, they are also cautioned to tell the Bangladeshi Rifles, if they are caught across the border that they are returning from some work or wedding from a particular village. Thus poor people, deliberately bereft of identity and citizenship, have no option but to again take the path of illegality merely in order to survive.”  Diplomatic protocols (under the Vienna Convention on Diplomatic Relations, 1961) require that when deportation takes place the embassy or high commission or any other representative of the state of the country of origin of the deportee be informed about the decision. This is never done in cases of deportation of supposed Bangladeshis. The extra-legal process followed by India effectively renders the people involved stateless and violates Article 15 of the Universal Declaration of Human Rights, 1948 (UDHR), particularly clause 2 which says: no one shall be arbitrarily deprived of his nationality ...

As a result the issue remains alive and every now and then plunges the people into mindless violence. Assam movement of 1979-85 that claimed thousands of lives including Nellie massacre of 1983 is an example. It also gives the politicians easy way of emotionally blackmailing both the sides. It has perpetually been hanging over the heads of both the sides like "the Sword of Damocles" leaning more towards Bengali speaking Muslims making them vulnerable to everything from linguistic, cultural and political dominance to making them weaker in the bargaining in labour market.

Now the government has deiced to rehabilitated only those displaced people who have land documents. Till now such documents of only 11,066 families out of an estimated 1,50,000 persons have been verified and reportedly found genuine. These families will hopefully be rehabilitated in 15-30 days. But this illegal step of measuring victimhood and sufferings as well as citizenship and entitlement of basic human rights on the land held by the person is unconstitutional and bereft of human compassion and moral compunction. The move will sentence most of the victims to statelessness and starvation since almost all of the victims are illiterate and landless labourers.

Regarding foreigners issue in Assam in reference to rehabilitation of the victims of Bodoland violence the points given below may be considered:

1. There is no dispute that victims living in relief camps are victims of the violence whether they are Indians or not.

2. There is also no dispute that they are human beings and as such they have basic human rights to which they are entitled irrespective of their nationality.

4. One of the parties to the conflict has alleged that some of the victims of the other party may not be Indian nationals.

5. There are reasons to hold that they all can not be Bangladeshis.

6. Point 5 necessitates detection of their nationality under such a procedure which is fair and is not harassing to the bonafide citizens.

Now what can be done in such a situation:

1. Acknowledge their victimhood. It entails rehabilitation and reparation.

2. Do not violate their human rights. It entails protection of life and dignity.

3. Detect Bangladeshis among them without harassing any bonafide citizens taking advantage of their victimhood, illiteracy and poverty.

4. After detection decide whether the labour force provided by them is needed and beneficial or not for Assam and weigh the gain or loss of deporting or retaining them.

5. If you decide to retain them document them and devise a regime where there basic rights are not violated.

6. In case you decide to deport them to their country do it under a process that actually works.

To really and actually deport them you have to do:

1. Dont conflate legal migrants who are bonafide citizens with illegal ones and take into confidence the former so they dont resist any move and it does not end up becoming a hot political issue.

2. Talk with Bangladesh and evolve a procedure of detection and deportation to which both the parties are agreeable. Otherwise Bangladesh will not admit that the person is its national and will resist any deportation. No country can forcibly push back any person into any other country. It is not practical.

3. Finally, actually deport them.

All other steps will perhaps not succeed to serve the purpose and will make more people victimised, society polarized, peace further jeopardized and some politicians will reap some votes and nothing more will happen except more corruption and more bloodbath.

*Writer is Director (Legal Affairs), Barak Human Rights Protection Committee (BHRPC), Silchar, Assam