2014: People’s Watch and its ongoing struggle for justice for torture victims in India

– By Henri Tiphagne, Mathew Jacob and Shivani Lal –

In 1993, the Governments of Tamil Nadu and Karnataka set up a Joint Special Task Force (JSTF) to capture Veerappan, a dacoit who used to operate over a stretch of 6,000 sq. km of mountainous landscape covering the borders of Tamil Nadu, Karnataka and Kerala in Southern India. A series of bombings and attacks by Veerappan’s gang in 1993, that left 22 people dead including five police personnel of Tamil Nadu Police, was the reason for the constitution of the JSTF by the administration. By the time of his death, in an encounter executed by JSTF, he was alleged to have killed 124 persons, poached 200 elephants for their ivory (estimated worth $ 2.6 million), and smuggled 10,000 tonnes of sandalwood (estimated worth $ 22 million).

The events that unfolded thereafter, led to gross human rights violations of innocent civilians over the decade long hunt and eventual encounter of Veerappan in 2004, under suspicious circumstances at the hands of JSTF. This case paints a contrasting picture of one of the many struggles won by the human rights movement, where justice was delivered in India, through a flawed and insensitive administration. The apathetic attitude and ignorance of the system came forth during this struggle.

Caught in the middle

Almost as soon as the JSTF was constituted, instances of state sponsored terror, torture, enforced disappearances, extra-judicial killings and other forms of human rights violations were being observed, inflicted by the JSTF personnel on the poor and largely illiterate people who inhabited the region’s villages – places like Hanur, Nallur, Santhanapalayam, M M Hills, Mettur and Chinnappallam – and worked as agricultural labourers. Under the disguise of investigating and interrogating villagers to nab Veerappan, the JSTF systematically intimidate and tortured the villagers, alleging them to have been supporting and aiding Veerappan. JSTF personnel justified their illegal detention and questioning of these villagers by saying that they belonged to the same caste as Veerappan. At the same time Veerappan was allegedly not sparing the lives of those assisting the police investigations against him either. Innocent villagers were in this way caught between the JSTF and the forest brigand.

Brutal abuse was inflicted by JSTF personnel, including fake encounters, disappearances, custodial rapes and deaths, torture by electric shocks, unlawful imprisonment and wilful deprivation of food and water, leaving many of the villagers highly traumatised, with a very large number of them even turning mentally ill.

Over the period between 1993 and 1996, around 50 persons disappeared without a trace. Others testified to severe forms of torture, including being hung from the ceilings upside down, while being interrogated and even being urinated upon. In some cases, they were brutally beaten and had chili powder rubbed on their wounds. Female victims were reportedly gang raped continuously for several days, and were refused treatment by the local hospital for being branded as Veerappan supporters.

Failed by the system

The blatant human rights violations and sufferings of the villagers were only reported in the media for the first time in 1997-1998. Who could the villagers turn to when the police refused to even register First Information Reports (FIR)? The public system had completely broken down in the region, there were no roads, schools, courts, hospitals or even post offices. When the newly established National Human Rights Commission (NHRC) was supposed to step in, it failed to take cognisance of the issue under Suo Motu action (motion taken by NHRC on its own rather than on a complaint being filed). Did the system believe in providing justice to victims and witnesses? Or did the NHRC, a statutory body, believe in keeping silent and providing impunity to the perpetrators? It cannot be said for sure. But the persistent apathy definitely led to many more killings and disappearances, while those who survived lived without dignity.

Civil society organisations (CSOs) and non-governmental organisations (NGOs) provided the necessary accompaniment to the marginalised and excluded, who sought justice but struggled on their own. Civil society was required to bridge the gaps where the legal system fell short or out right failed to deliver on its responsibilities.

By 1998-1999, NGOs and numerous human rights defenders (HRDs) began to write complaints to the NHRC regarding the abuse and torture faced by the villagers in the JSTF operation region. The complaints were filed on behalf of the villagers, who were detained illegally, without any specific charges and were languishing in Mysore Central Jail without trial for over six years. Complaints were also filed on behalf of 50 men and 12 women, arrested under various provisions of the former Terrorist and Disruptive Activities (Prevention) Act (TADA). The NGOs and HRDs urged the NHRC to intervene, under Section 12 (b) of the Protection of Human Rights Act 1993, and to take the matter to the Supreme Court.

The Campaign for Relief and Rehabilitation

In early 1999, six NGOs from Karnataka and Tamil Nadu – People’s Watch, the Society for Community Organisation Trust (SOCO Trust), the Tribal Association of Tamil Nadu, the People’s Union for Civil Liberties (PUCL) of Karnataka and Tamil Nadu, South India Cell for Human Rights Education and Monitoring (SICHREM), and the Human Rights Cell of the Indian Social Institute – formed ‘the Campaign for Relief and Rehabilitation of TADA detenues from MM Hills in Karnataka and Tamil Nadu’.

The campaign began to comprehensively document cases of violations through visiting and conducting fact finding missions in affected villages of the region, and recording videos of testimonies from victims. People’s Watch lawyers prepared about 250 written affidavits, translated these into English, and then classified them in various categories according to the nature of violation perpetrated. With this evidence, the campaign approached the NHRC yet again to take action.

The campaign had now set out to build a movement driven by the citizens to pressure the NHRC to take action. The strategy was to document cases and evidence, along with organising marches, protests, demonstrations and
conferences. Victims and witnesses were at the forefront of this movement. Political parties extended a helping hand and local media was engaged to support as well.

The campaign did receive its share of intimidation and harassment by the police and JSTF personnel in this period. Intelligence officers stood outside the halls, while victims testified, recording the names of participants and taping public statements. In April 1999, three days before a conference in Salem district, a local police inspector arrested four of the organisers from their homes in the middle of the night.

In spite of the threats and intimidations executed by the JSTF in retaliation to the campaign, branding it as fake and connivance against them, a large number of journalists, lawyers, political leaders, victims and their families, HRDs and regular people attended the demonstrations and conference in Salem.

Two-Member Panel of Enquiry

The NHRC, after a series of struggles and advocacy by civil society, decided to form a ‘Two-Member Panel of Enquiry’ to examine the cases and submit recommendations to the commission on necessary or urgent actions to be carried out. On 28 June 1999, the commission ordered for the panel to be set up, and appointed Former High Court judge A J Sadasiva as Chairman, with C V Narasimhan, former director of the Central Bureau of Investigation, assisting as the second member.

On 23 August 1999, a speedy legal intervention was sought from the Chairperson of the NHRC under Section 12 (b) of the Protection of Human Rights Act 1993, with regard to the persons languishing in Mysore Central Prison for periods ranging from four to six years under TADA. The communication pointed out that the human rights violations arising out of legislation like TADA had already been commented upon by NHRC. Up until then, the Sadashiva Panel, seemed to only have existed on paper. Even after all this, the enquiry panel only fully commenced its operations in January 2000.

The panel held its first two sittings in January and March 2000, but it refused to acknowledge cases of encounter killings which were filed by the campaign with the Tamil Nadu State Human Rights Commission. The panel justified, on technical grounds, that they were not mandated to work on them. Thus, the mandate of the panel excluded the instances of the most heinous offences from its jurisdiction on the basis of disingenuous technicalities.

Right before the panel was about to constitute its third hearing, Mysore Central Jail filed a writ petition in Karnataka High Court seeking a stay on panel proceedings, questioning its jurisdiction. Quite evidently, these were tactics used by the administration to create unnecessary delays and obstacles for the NHRC, as well as for the campaign. Hence the third sitting was delayed further.

Meanwhile, the abuses faced by the villagers had come to Veerappan’s attention and in an interesting turn of events, Veerappan kidnapped a film actor, Rajkumar. On 25 August 2000, in the wake of ransom negotiations, Veerappan forced the Governments of Tamil Nadu and Karnataka to publicly promise Rupees 100 Million (Rupees 50 Million each) as interim compensation for the victims of human rights violations.

On 29 September 2001, the TADA court delivered its judgment acquitting 107 out of 121 defendants. The Supreme Court ultimately handed down death sentences to four among the convicted. In its written decision, the TADA court
observed that the prosecution had roped in many accused on the basis of confessions only, absent of any other tangible evidence. For the Sadasiva Panel, the TADA ruling destroyed the JSTF’s credibility, and bolstered victims’ allegations that they had been taken into custody on a much earlier date than mentioned in their records, kept in illegal custody for a long period where they were subjected to humiliating treatment and torture, and later produced in court on false charges under TADA, merely to legitimate their arrest.

The Sadasiva Panel did not take any action, let alone hold hearings, for another 20 months. The panel finally held its third sitting on 6-8 March 2002 at the M.M. Hills in Karnataka, when the pending writ petition was dismissed by the court. The panel thereafter devoted at least five sittings to depositions recorded by JSTF officials.

The Enquiry Panel’s Report

The sittings of the panel ended on 13 November 2002 and the follow up process continued till July 2003. On 2 December 2003, the panel submitted its report to the NHRC with recommendations for actions to be taken by the NHRC. The report was not made public. The commission kept holding on to the report, claiming that it was waiting for responses from the State Governments of Tamil Nadu and Karnataka. The campaign swung into action again, advocating for the report to be released to the general public. A delegation from the campaign travelled to New Delhi to demand the release.

Meanwhile, the JSTF had found and killed Veerappan in an encounter on 18 October 2004. Immediately, the Government of Tamil Nadu and Karnataka announced gallantry awards to JSTF personnel, overlooking the charges of committing heinous human rights violations. Henri Tiphagne, Executive Director of People’s Watch, flagged this issue and wrote letters to the Chief Ministers and the NHRC, arguing that according to the NHRC’s own guidelines regarding ‘encounter deaths in the course of police action’, investigations into all encounter deaths must occur before the involved officers could be rewarded. ‘No out of term promotion or gallantry rewards shall be bestowed on the concerned officers so soon after the occurrence’[1], the commission had declared. However, the NHRC failed to take notice of this too.

Finally, in October 2005, the report was released. The Sadasiva Panel’s report was found to be utterly insensitive towards the victims, who had been now waiting for eight years, hoping for some form of justice to be delivered to
them. The report took on the tone of victims shaming and blaming. The report accused the NGOs of provoking victims to cook up false, exaggerated cases, and preparing victims to claim compensation. The panel blamed the victims for being party to NGOs’ ulterior motives.

Yet, the report claimed to not be biased towards either party saying that ‘aggressive police action in the course of anti-Veerappan operation (..) even bona-fide action, would have generated a climate of ill-will, distrust, frustration and anger, enveloping the tribes as well as policemen in their mutual interaction. It would only be natural in such situations that each side comes with exaggerated and even false allegations against the other side, merely to settle scores and keep the heat on.’

The report further went on to discredit and ridicule the female victims of sexual harassment and their testimonies. It kept working towards identifying various circumstances in which they could undermine the credibility of their testimonies, rather than looking into the allegations from the victim’s perspective. For example, it did not find the testimony of rape to be credible where the victims did not produce a witness to the alleged rape or where the victim’s husband failed to testify to the rape. A rape victim, Thangamal was taken hostage at the JSTF headquarter and was raped by the JSTF Chief Walter Devaram himself for three days continuously. The panel refused to believe her testimony, because she failed to identify him by name.

Follow-up to the Report

The State Governments of Tamil Nadu and Karnataka did not seem to take notice of the NHRC report, nor its recommendations, during this time. No action was taken by either Government towards providing compensation or any form of justice to the victims. The State Governments also failed to provide a response in this regard to the NHRC. Many deadlines lapsed in this process and the NHRC generously and patiently kept extending them.

Finally, in December 2006, the NHRC summoned the Chief Secretaries of both the States for a consultation, and the Chief Secretaries assured to pay compensation to the victims as promised earlier.

At last, on 17 January 2007, the NHRC announced compensation for 89 victims, from both the states, among them 84 from Karnataka, after being assured by the State Governments that they would respect and adhere to the recommendations given by the Sadashiva Panel in its report. The commission provided one to Rs 500 Thousand to the victims based upon the degree of abuses they faced. Rs 500 Thousand went to next of kin of 36 persons killed in encounters, and Rs 200 Thousand to each of the three women the panel had found to have been ‘detained and sexually abused, but not raped’.

The panel also made a few namesake suggestions and recommendations to the State  Governments for the future. Keeping in mind the political pressures and climate, it did not take any strong positions or suggested any actions against the perpetrators, apart from providing compensation to the victims. The NHRC’s and state administration’s attitude remained insensitive, apathetic, and illusory towards the sense of justice and relief.

It was finally in January 2014 that the Supreme Court of India passed a judgement commuting the death sentences of the four convicts in this case under TADA, due to delay in mercy plea decisions. The journey for justice for these people that started in 1997 only partly ended in January 2014, 17 years later!

Beyond the rulings

It is simple doggedness and perseverance of sorts that is required on the part of HRDs to continue onwards in such cases, and still end up with very little success. Institutions also lose their steam in such long drawn processes, as did the NHRC in this case, when many years after an interim order of compensation it finally paid to the victims’ families. A later Bench of the NHRC found it convenient to close the case with no reference whatsoever to the complainants in the case. The closure is now being challenged in court.

Human rights monitoring and legal interventions cannot be undertaken in solitude by HRDs without rehabilitation being undertaken simultaneously. If there is any example of human rights rehabilitation that has been undertaken in India, it has only come from civil society. Rehabilitation undertaken by Peoples’ Watch in this special case, was done in collaboration with the United Nations Voluntary Fund for Victims of Torture for several years, who provided financial assistance to undertake economic development programmes with the families of victims.

In addition, special educational assistance was provided to the children of the victim’s families to ensure that they would not drop out of school and would continue their university studies. One of them ended up as People’s Watch’s own lawyer in Madurai before the Madurai Bench of the Madras High Court. Another handful became social workers, two of whom presently work with People’s Watch.

Present scenario/long term changes

According to the National Crime Records Bureau (NCRB) data, 51,120 complaints were lodged during the year 2013 alone against police personnel for committing human rights violations. A total of 1,250 police personnel were sent to trial after investigation and framing of charges during the year 2013. Many cases, 412 of the ones filed against police personnel, were either withdrawn or disposed of otherwise. Trials were completed in only 154 of the police personnel cases, out of which 101 were acquitted and 53 were convicted.

In a recent case of arbitrary detention, custodial torture and encounter killings of 20 labourers from Tamil Nadu by the Andhra Pradesh Red Sanders Special Task Force, the NHRC intervened in the matter actively and swiftly. The NHRC issued interim orders for protection of the witnesses, conducted an independent investigation, and called for specific documents and interim compensation up to Rs. 800 Thousand.

The orders issued by the NHRC were stayed by the Andhra Pradesh High Court. However, the actions of the NHRC reflect the maturity of the institution. It has definitely travelled miles since 1993, but remains million miles away from what is expected of it.

Civil society, over the past two decades have engaged closely with the NHRC and advocated strongly for the institutions to take action on serious State crimes, which are now coming to light. The NHRC continues to be in the shackles of the Government of the day, giving complete non-compliance to the Paris Principles. The NHRC has also politically distanced itself from civil society, which is calling for the ratification of the UN Convention against Torture (UNCAT). Reform of the NHRC, and the ratification by India of UNCAT continue to be among the main challenges for civil society, which is why it is collectively lobbying and advocating for that.

The way forward

India is the largest democracy in the world, and also one of the few countries in the world which has not ratified the UNCAT from 1997. 155 UN Member States have ratified the UNCAT. India has not passed any domestic law that will enable it to ratify the convention yet.

India’s reason to justify its refusal to ratify or pass a domestic law, is that it is supposed to have good enough State Laws that can efficiently manage the torture crimes in the country, which is contrary to the Government’s statistics. The current acting Chairperson of the NHRC, a former judge of the Supreme Court of India, defended the country’s position related to UNCAT in this manner during the Asia Pacific Forum of National Human Rights Institutions (APF) meeting in Mongolia in 2015.

Perhaps, one of the landmark steps taken as of yet to combat torture in India, was the passing of the Protection of Human Rights Act, that came into force in September 1993. This Act provided for the establishment of the Human Rights Commission at the Centre (National Human Rights Commission) and at each and every state in India. However, even though the commissions were created to be completely independent, they only possess recommendatory power. The law governing the commissions makes it dependent on the Central Government for all practical requirements, such as appointments, manpower and finances.

Instead of adopting new laws to combat terrorism, India continues to function under regressive laws and is even passing new bills that, rather than preventing and prohibiting torture, are inflicting torture and harassment to target certain groups in society. Many of these laws are used against HRDs to threaten and restrict their work. Fabricated charges against HRDs have left many of them languishing in prison for many years.

Laws that indirectly legitimise torture are in the pipeline. The draconian TADA and the Prevention of Terrorism Act (POTA), the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill 2015, which await the President’s assent, make confessions secured in police custody admissible as evidence before a court of law.

It is time for the NHRC in India to get itself geared up to develop a law to protect human rights in India. The Protection of Human Rights Act from 1993 needs urgent changes to live up to peoples’ expectations. The NHRC India is also getting ready for its next re-accreditation in 2017, and it is time for the present Government, along with Parliament, to get ready for the global scrutiny of its institution in tune with India’s demand for membership of the UN Security Council. India will also be getting ready for its third Universal Periodic Review (UPR) in 2017. We can only hope that this will lead to new Indian legislation that really protects and promotes human rights and fundamental freedoms.

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Henri Tiphagne

Henri Tiphagne is the Executive Director of People’s Watch, Convenor of Working Group on Human Rights in India and
the UN (WGHR) and the Chairperson of FORUM-ASIA (2012-2016).

Mathew Jacob

Mathew Jacob is the Director Programs of People’s Watch and National Coordinator of Human Rights Defenders Alert – India (HRDA).

Shivani Lal

Shivani Lal is the North Regional Coordinator of the Human Rights Defenders Alert India and All India Network of NGOs and Individuals Working with National and State Human Rights Institutions (AiNNI).

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