The Waqf (Amendment) Bill: A Legal and Constitutional Critique

The proposed Waqf (Amendment) Bill, ostensibly framed to "reform" the governance of Waqf properties under the Waqf Act, 1995, constitutes a constitutionally suspect legislative maneuver that disproportionately targets India’s Muslim minority. Its provisions violate the principles of secularism, equality, and religious autonomy enshrined in Articles 14, 15, 25, and 26 of the Indian Constitution, while perpetuating systemic discrimination against minorities in contravention of international human rights obligations.  

The bill’s proposal to induct non-Muslim members into Waqf Boards flagrantly infringes upon the absolute right of religious denominations under Article 26 to manage their own religious affairs. Waqf, as a quintessentially Islamic institution rooted in Sharia principles, is governed by specific theological mandates that require trusteeship (mutawalli) and oversight to align with Islamic jurisprudence. The imposition of non-Muslim members, who lack doctrinal competence, into governance structures constitutes state interference in religious practice, undermining the constitutional guarantee of autonomy under Article 26(b). This contrasts starkly with the state’s hands-off approach to Hindu religious endowments (governed by state-specific Acts) or Christian charitable trusts, which retain exclusive denominational control. Such discriminatory singling out of Muslim institutions violates the equality clause (Article 14) and perpetuates an asymmetrical application of secularism, reducing it to majoritarian appeasement.  

Further, the bill’s transfer of authority to declare properties as Waqf from Waqf Boards to government-appointed officials (e.g., District Commissioners) represents an unconstitutional usurpation of quasi-judicial functions by the executive. Under the 1995 Act, Waqf Tribunals, specialized bodies with expertise in Islamic law, adjudicate disputes to ensure doctrinal fidelity. By shifting this power to bureaucrats, the bill violates principles of natural justice, as state officials lack the theological and legal expertise required to interpret Waqf deeds (waqfiyya). This undermines the rule of law by replacing specialized tribunals with a politicized executive, risking arbitrary or biased decisions contrary to Article 14’s guarantee of equality before law. It also infringes on due process under Article 21, as disputes over religious endowments demand adjudication by bodies versed in the relevant religious law— a safeguard denied to Muslims alone. This move mirrors broader efforts to dilute minority institutions through bureaucratic overreach, setting a dangerous precedent for state control over all religious trusts.  

The bill’s enhanced scrutiny of Waqf properties— absent parallel measures for Hindu, Sikh, or Christian trusts— violates the essential secular character of India’s constitutional framework. The state’s selective intervention in Muslim endowments, under the guise of “transparency” or “modernization,” constitutes invidious discrimination under Article 15(1), which prohibits discrimination on grounds of religion. This discrimination is exacerbated by the broader socio-political context, including the Citizenship (Amendment) Act, 2019 (CAA), which excludes Muslims from its purview; proposals for a Uniform Civil Code (UCC) targeting Muslim personal law; and demolitions of Muslim-owned properties under municipal pretexts. Such systemic marginalization reveals a pattern of legislative othering, reducing secularism to a majoritarian tool and violating Article 25’s guarantee of freedom of conscience and free profession of religion.  

The bill’s delegation of Waqf governance to non-expert bureaucrats exceeds the permissible limits of delegated legislation under constitutional jurisprudence. In Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the U.S. Supreme Court emphasized that core functions of specialized bodies cannot be transferred to the executive without violating separation of powers. Similarly, in India, the Supreme Court in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) held that the judiciary’s independence is sacrosanct. By dismantling Waqf Tribunals, the bill subverts institutional autonomy, rendering it ultra vires the doctrine of separation of powers.  

India’s obligations under Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which protect minorities’ rights to religious and cultural autonomy, are further breached by the bill. The UN Special Rapporteur on Minority Issues has repeatedly cautioned against laws that “disproportionately affect religious minorities under the guise of governance reforms”—a descriptor fitting the Waqf Bill.  

With over 600,000 registered Waqf properties valued at ₹1.2 lakh crore, the Muslim community relies on these assets for educational, healthcare, and housing support. By transferring control to state actors, the bill risks alienation of Waqf lands through mismanagement or outright expropriation, deepening socio-economic disparities. This violates Article 39(b) of the Directive Principles, which mandates equitable distribution of community resources.  

The Waqf (Amendment) Bill is not merely a regulatory overhaul but a calculated erosion of minority rights that weaponizes state machinery to dilute Islamic institutions. Its provisions contravene constitutional guarantees of equality, secularism, and religious freedom, while aligning with a broader agenda of marginalizing Muslims. If enacted, it would institutionalize discrimination, erode trust in governance, and further fracture India’s pluralist ethos. Judicial intervention is imperative to scrutinize the bill’s constitutionality, safeguard minority rights, and uphold the Basic Structure doctrine against majoritarian encroachment. The state must withdraw this pernicious legislation and reaffirm its commitment to equality—not merely in rhetoric, but in constitutional practice.

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

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: Human rights and detection and deportation of foreigners

Taking serious note of the failure of the government machinery to detect and deport illegal Bangladeshi migrants from Assam even after determination of their citizenship status through the legal process, the Gauhati High Court has asked the State and Union governments to clarify how such cases should be dealt with.

Gauhati High Court at Guwahati, Assam

“The Union and State governments in respective Home departments are directed to clarify in case of failure to deport the declared foreign nationals to their country of origin, how their cases will be dealt with. The authorities in the State and the Union Government shall bear in mind that more than 40 years have gone by since the cut-off date, i.e., 25.3.1971 was fixed for detection and deportation of foreign national (illegal Bangladeshi migrants),”Justice B K Sharma said in his order in connection with cases WP (C) No. 4601/2011 and WP (C) No. 642/2009. This is reported in the Assam Tribune on 19 June 2012.

It is true that the attitude of both the governments is indifferent to the problems of deportation of the illegal immigrants living in Assam. The indifference and insensitivity has led to a situation where laws and rules governing the process are vague, inadequate and inefficacious.  It, in turn, has created a de facto and de  jure regime which coupled with the prejudices of the implementing officials facilitates witch-hunting of people belonging to a particular linguistic community living for centuries in Assam while failing to detect any actual foreign national and deport her/him legally to the country of her/his origin. 

The processes of detection, detention and deportation of ‘foreign nationals’ being applied in Assam not only violate international law and human rights of the suspects but also threaten about 2 million people with being rendered stateless. This is due to many factors including the presumption that anyone in the state who speak the Bengali language and belong to the poorer strata are an enemy aliens  and a member of the troops of cultural aggression of Assam by Bangladesh. They do not deserve any rights and can be rightfully deprived of their human rights. 

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) 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 6% in such cases so far. Marking D in name of a voter suspends his all citizenship rights for indefinite time and now about 200 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 works 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 ...

One is not against detection and deportation of foreigners from Assam and India. On the contrary one believes in the right to return of all persons who are foreign nationals living as refugees or immigrants (legal or illegal). The concern is over the processes employed. As these processes are not in conformity with the due process principle and international human rights standards they provide tools to harass genuine citizens on one hand and on the other hand, violations of basic human rights of all persons involved.

Attitude of both the central and state governments is indifferent to both the questions of deportation and deportation under due process and approach of the judiciary is also deplorable as the utterances they make time and again seem to be insensitive to the principles of liberal jurisprudence and human rights. For a permanent solution of the problem the approach must change.

Rights group voices concern over police brutality in West Bengal

The Hong Kong based rights group Asian Human Rights Commission (AHRC) has expressed concern over a case of illegal arrest, detention and police brutality against Mr Golam Kibria from Murshidabad district, West Bengal, India. Calling it a case of senseless brutality the AHRC said in a release that this is yet another incident in a seemingly infinite number of cases wherein law enforcement agencies due to ingrained malpractices and callous attitudes have committed criminal acts against helpless individuals under their jurisdiction.

The AHRC wrote to the UN Working Group on Arbitrary Arrest and Detention and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment calling for their intervention in this case.

Citing an inquiry undertaken by MASUM, a West Bengal based human rights organisation, the AHRC said that the victim of illegal arrest, detention and torture was 30-year-old Mr Golam Kibria from the Murshidabad district, who endured physical assault and injury from police officers from Jalangi Police Station led by Mr Manas Maity, the Officer-in-Charge of Jalangi Police Station and the Sub-Divisional Police Officer, Domkal, Murshidabad.

The police encircled the house of Mr Samsul Huda (Golam Kibria's father and a retired school teacher) at 1.30am on 4 May 2012 and began to strike the front door repeatedly, demanding entry. The police then forcibly entered the house and violently laid hands on Mr Golam Kibria, whose hands were tied with a rope and held above his head while the police brutally beat him. The victim was then taken to Jalangi Police Station.

Reports were soon heard that the police had completely removed his clothes and assaulted him again in his naked condition while in their custody. The severely injured victim was released from Jalangi Police Station on 5 May 2012 without any explanation as to his arrest the previous day or for the barbarism that was visited upon him during his unlawful detention.

Medical reports demonstrate the gravity of the assault upon Mr Golam Kibria, who is still being treated. The victim is himself still in shock and greatly traumatised by this unwarranted violence against his person. The victim's family members and some other locals witnessed the incident, but they are unable to seek justice because the police they have to report the case to would be the very same group of men who had themselves tortured the victim. Although these heinous criminal acts against Mr Golam Kibria are in themselves despicable, the criminality of the entire law enforcement agency is equally undeniable and even more troubling. The law has failed to provide back-up avenues through which the individual who was not in the first instance protected, could seek justice and compensation, and through which the perpetrators could be punished.

Mincing no words the rights body said that something is terribly wrong with the justice system in India. When individuals and entire communities live in fear of their own safety because of the arbitrariness and senselessness of violence; when agencies that were designed specifically to protect and uphold rule of law are themselves perpetrators of these acts; when police personnel, logically the moral exemplars for the societies they administer, are able to behave with complete impunity and are not subjected to intense scrutiny from the centre - it is a broken, dysfunctional system, a failure of humanism, a mockery of ideals.

Without intervention by the central government, the people of Murshidabad and all over India face, for the foreseeable future, continued abuse of their freedoms and physical person and no likelihood for justice to be served to those acting with complete impunity.

Along with the UN entities the AHRC also wrote to the Indian authorities demanding impartial and credible investigation into the case and compensation to the victim.

More importantly, the body called on to the Central authorities to take steps to circumscribe such acts of violence and impunity by instituting safeguards (such as external observers or auditors appointed by the centre) at the provincial level to monitor and enforce adherence to the legal procedures stipulated by the state government. The Central authorities should also take steps toward revising their stance toward Article 9 of the International Covenant Civil and Political Rights and toward acceding to the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment and Punishment in order to become even more credible in the commitment to international norms and shared ideals since the Indian state, particularly the central government, should undertake to protect the life, liberty, dignity and personal security of every single person residing in the Indian state under all circumstances through all means possible, demanded the AHRC.

Originally published in the Newblaze with the title AHRC Voices Concern Over Case of Police Brutality in India and available at http://newsblaze.com/story/20120525070457lask.nb/topstory.html

Campaign to save tea labourers from huger deaths

The Barak Human Rights Protection Committee (BHRPC) has started an online petition calling on the authorities in India to save the tea workers of Assam who are dying due to hunger, malnutrition and lack medical attention and care.

Bacause, according to the BHRPC, it is very shocking that the enforced conditions of starvation and famine and resultant tragedy of hunger deaths of the tea workers of Assam still persists with its all menacing ugliness. Labourers of tea estates in this North East Indian state known worldwide for tea production are dying one after another due to malnutrition and lack of proper health care.

So far 15 workers of a particular tea garden in South Assam died and several others are counting their days, according to the information available with the BHRPC. (Read more here) or support the tea workers and sign the petition here.